THE HON’BLE SRI JUSTICE N.R.L. NAGESWARA RAO CRIMINAL REVISION CASE No.102 OF 2009 ORDER: The accused in Sessions Case No.533 of 2006 on the ﬁle of the Principal Assistant Sessions Judge, Tenali, who was convicted for the oﬀence under Section 376 of the Indian Penal Code (for short, 'IPC') and upheld in Criminal Appeal No.343 of 2007 on the ﬁle of the I Additional District and Sessions Judge, Guntur, and reduced the sentence of imprisonment to three years, is the revision petitioner herein. 2. The substance of the allegation against the accused is that on 25.08.2006 at about 10.00 A.M., when PW.2 was said to be standing near the Church, the accused came to her and oﬀered a sum of Rs.30/- for purchase of sweets and took her to his house and thereafter, after closing the doors said to have fell her and committed rape on her. Thereafter, on the next day, the victim is said to have informed to PW.1, her grandfather, and in turn, he ﬁled a complaint before the police, the same was registered and investigated into and after completion of the investigation charge sheet has been ﬁled for the oﬀence under Section 376 IPC. After the committal the accused appeared before the I Additional District and Sessions Judge, Guntur and pleaded not guilty for the offence under Section 376 IPC. 3. During the trial, on behalf of the prosecution, PWs.1 to 7 were examined and marked Exs.P.1 to P.7. After considering the evidence on record, the learned Principal Assistant Sessions Judge accepted the prosecution case and convicted, which was confirmed in the appeal. 4. The point for consideration is whether the prosecution has proved that the accused has committed rape on the victim (PW.2)? 5. POINT: The prosecution case goes to show that though PW.2 is said to be a minor, her age is said to be about 17 years by the Medical Certiﬁcate and therefore, the Principal Assistant Sessions Judge found that PW.2 is not a minor. Except the evidence of PW.2 about the act of the accused, there are no other witnesses and the complaint is said to have been given on the next day. The doctor, PW.6, has opined that there are no injuries on the person of PW.2 and on the basis of the Public Analyst Report, the intercourse cannot be ruled out. Therefore, on the basis of it, the accused was found guilt of offence under Section 376 IPC. 6. Before the Principal Assistant Sessions Judge and also before the I Additional District and Sessions Judge, the plea of the accused was referable consent on behalf of PW.2 and in fact the learned counsel for the accused before the Sessions Court has admitted the intercourse, which may not, under the circumstances, be taken as ﬁnal and binding on the accused because it is against his interest and such admissions cannot be given much credence. Therefore, it has to be seen whether the prosecution has proved that the accused has committed rape on PW.2 7. The evidence of PW.1, who is the grandfather of PW.2-victim, goes to show that on the next day of the incident, PW.2 informed about the incident and he has gone to the police station and presented report Ex.P.1. The house of the accused is said to have been separated by three houses from his house. 8. The evidence of PW.2, who is the victim, goes to show that when she was in the house, the accused came and took her to his house promising to pay Rs.30/- and committed rape on her. She claims to have informed this incident on the next day to PW.1. In cross-examination, it was elicited that she was in the house of the accused for some time and that she did not cry and there are also houses in the neighbourhood. She claims that her hand was broken. According to her nobody witnessed the incident. The evidence in chief examination is very brief and in the cross-examination also no material was elicited about the use of the force or any pain or suﬀerance for her due to the act of the accused. The particulars of the clothes and they being stained is also not elicited in the cross-examination of the victim girl. 9. The evidence of PW.3, who is the relative of PWs.1 and 2, is that she saw the PW.2 coming out from the house of the accused on the day of incident and the accused was said to be present in his house on cot. Her evidence is of no use either for the prosecution or for the accused. 10. The evidence of PW.4, who is said to be a panch witness and Panchayat Secretary in whose presence the panchanama was conducted and property was seized, goes to show that there are said to be some marks of semen on the bed-sheet. It is noted by the lower court that in spite of giving opportunity, the Circle Inspector of Police, who conducted the investigation, did not appear for giving evidence. 11. The learned counsel for the revision petitioner contends that the non-examination of the Investigating Officer would extend benefit to the accused. 12. From the evidence of PWs.2 and 3, it is quite clear that PW.2 was found in the house of the accused by the alleged time of the incident. Even when the doctor was examined no eﬀort was made as to whether PW.2 was accustomed to sexual intercourse earlier. The fact that the observations at the scene of incident as deposed by PW.4 show that the clothes were having marks of semen and all the circumstances clearly goes to show that the evidence of PW.2 that she was subjected to sexual intercourse is true and there is no reason to discredit her testimony. 13. The only question to be determined is whether PW.2 is a consenting party. Evidently, as can be seen from the record, the accused is said to be aged about 55 years having four daughters, probably some of them may be of the age of the victim and in such circumstances, the victim, who is hardly aged about 18 yeas to be a consenting party for sexual intercourse with the revision petitioner appears to be improbable and unnatural. Therefore, in view of the above circumstances, the only inference is that the accused had taken PW.2 to his house and committed sexual assault on her and thereby, the oﬀence under Section 376 IPC is made out. 14. The appellate Court is also lenient in reducing the sentence and therefore, there are no grounds to interfere with the conviction and sentence imposed by the lower Courts. Accordingly, the Criminal Revision Case is dismissed. The lower Court is directed to give N.B.W., for apprehension of the accused. __________________________________ JUSTICE N.R.L. NAGESWARA RAO Date:30-11-2011 INL