IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY NINTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No.1840 OF 2003 Between: Bollem Ranganayakulu ..... Petitioner AND The Sate of Andhra Pradesh, Rep. through Public Prosecutor High Court of A.P., Hyderabad. ..... Respondent The Court made the following: ORDER: The Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 17.11.2003, in Crl.A.No.16 of 2002, on the file of the learned I Additional Sessions Judge, at Ongole, Prakasam District, whereunder and whereby the conviction recorded against the petitioner/Accused No. of the offence punishable under Section 366A of the Indian Penal Code, 1860 (for short, “I.P.C.”), and sentence to undergo Rigorous Imprisonment for a period of three years and to pay fine of Rs.500/- in default to suffer simple imprisonment for a period of one month, as imposed by the trial Court in Sessions Case No.446 of 1999, on the file of the learned Assistant Sessions Judge, Markapur, vide judgment, dated 04.02.2002, were confirmed. 2. Brief facts, that are necessary for disposal of the present Criminal Revision Case, may be stated as follows: P.W.1, who is victim, studied up to 10th class. Accused No.1 used to go after P.W.1 expressing his willingness to marry her. On 23.03.1997 at about 4.00 p.m., having informed to her parents, P.W.1 went to her land to fetch green grass, but she did not return even after the sunset. Her parents searched for her, but her whereabouts were not known. Thereafter, father of P.W.1 presented a report on 29.07.1997 to police, who registered a case as in Crime No.26 of 1997 for the offence under Section 366 read with 109 I.P.C. and took up the investigation. P.W.8-Investigating Officer inspected the scene of occurrence and examined the witnesses and recorded their statements. Accused Nos.1 and 2 were found to be absconding from the village since the date of occurrence. On 05.08.1997 at about 10.00 a.m., P.W.1 surrendered before P.W.8 and she informed about the sequence of the events namely Accused No.1 kidnapping her, using criminal force and forcibly committed rape on her against her will. P.W.1 was sent to the Medical Officer, Government Hospital, Giddalur, for medical examination. The seminal swabs of P.W.1 were sent to the Forensic Science Laboratory, Vijayawada. P.W.6, the Medical Officer who examined P.W.1, opined that there was an evidence of sexual intercourse. Accused were arrested later and sent to remand and after completion of investigation, the police filed the charge sheet. 3. The trial Court framed charges for the offences under Sections 366A and 376 I.P.C. against Accused No.1, and Sections 366A read with 109 I.P.C. against Accused No.2, and when the same were read over and explained to the accused, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 7 and got marked Exs.P1 to P8. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances found against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, D.W.1 was examined and Ex.D1 was marked. 6. The trial Court, after considering the evidence on record, found Accused No.1 guilty of the offence punishable under Section 366A I.P.C. and accordingly, he was convicted and sentenced as stated above. With regard to the other charges, the accused were acquitted. On appeal by A.1, the said conviction and sentence were confirmed by the appellate court. Challenging the same, the present Criminal Revision Case is filed. 7. Now the point for determination is whether the judgments of the two Courts below are correct, legal and proper? 8. Learned counsel appearing for the petitioner herein contended that even prior to the incident, P.W.1 was having a sexual intercourse with Accused No.1; that P.W.1 was not shown to be less than 18 years of age prior to the date of incident; that there was a delay of 10 days in lodging Ex.P4-complaint; that the ingredients of the offence under Section 366A I.P.C. have not been attracted, and therefore, he prays to set aside the conviction and sentence recorded by the courts below. 9. On the other hand, the learned counsel representing the learned Public Prosecutor contended that none of the findings is shown to be incorrect, illegal or improper; that the evidence of P.W.1 would clearly go to show that she was kidnapped by Accused No.1 and rape was committed on her; that in the absence of any incorrect finding, the judgments under challenge need no interference in this revision, and hence, she prays to dismiss the Criminal Revision Case. 10. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are shown to be incorrect, illegal, or improper, ordinarily this Court will not interfere with the concurrent findings of the Courts below or to reappreciate the evidence sitting as if in an Appeal. A finding can be said to be perverse if it is not based upon proper appreciation of the evidence on record. 11. Section 366A I.P.C. reads as follows: “Procuration of minor girl: Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be, punishable with imprisonment which may extend to ten years, and shall also be liable to fine.” 12. P.W.2, who is no other than the mother of P.W.1, and P.W.3, who is no other than the senior paternal uncle of P.W.1, searched for P.W.1 as she did not come to the house. Their evidence is very clear that P.W.1 left the house to their land for fetching green grass, and even after sunset, she did not return. Without knowing anything, it may not be possible for the father of P.W.1 to rush to the Police Station to lodge a complaint. There is a quite possibility for them to search for P.W.1 in several places including relatives’ houses in and around the village. So, the delay of 10 days in lodging Ex.P4-complaint is not shown to have been taken with a view to implicate Accused No.1 falsely. There cannot be any dispute that mere delay in lodging Ex.P4-complaint by itself is not a ground to reject the prosecution case, if it is otherwise reliable and acceptable. The evidence of P.W.1 is very categorical that Accused No.1 kidnapped her and had taken to several places and he had a sexual intercourse with her. There must be some reason for P.W.1 to foist a false case of this nature against Accused No.1. There is no such reason or animosity for P.W.1 to foist a false case of this nature against Accused No.1. The evidence of P.W.1 can be put in the category of wholly reliable witness. 13. If P.W.1 was a minor as on the date of commission of the offence, the question of consent does not arise. Coming to the age of P.W.1, P.W.6, the doctor who examined P.W.1, opined that she was aged about 17 years. But in Ex.P6, which is the attested true copy of the Secondary School Certificate of P.W.1, dated 01.01.1997, issued by the Head Master of the Z.P. High School, Racherla, the date of birth of P.W.1 was shown as 06.07.1980. The genuineness and correctness of Ex.P6 is not under challenge. Therefore, both the Courts below placed an implicit reliance on the recitals in Ex.P6. Simply because the doctor had stated that P.W.1 was aged about 17 years at the time of incident, it cannot be accepted as gospel truth. Two years plus or minus to the age determined by doctor can be taken into consideration. In the absence of other evidence, the benefit of plus two years can be given to the age as estimated by the doctor. If there is no other corroboratory evidence available on record, two years plus or minus of the age determined by P.W.6 can be taken to corroborate the other evidence on record. The medical evidence coupled with the recitals in Ex.P6, it is clear that P.W.1 was minor by the date of incident. P.W.1. was taken to several places and she was subjected to sexual intercourse by Accused No.1 without her will. No doubt, the trial Court has acquitted Accused No.1 of the offence punishable under Section 376 I.P.C., because the medical evidence does not corroborate with the ocular testimony. Therefore, the trial Court rightly placed reliance on the evidence of P.W.1. 14. The evidence of P.Ws.2, 3 and 5 would clearly go to show that P.W.1 was not present in the village for about three months. 15. The evidence of P.W.7-Inspector of Police would clearly go to show that three months after lodging of Ex.P4-complaint, P.W.1 was traced and she surrendered herself before P.W.7. P.W.7 sent P.W.1 to the Medical Officer, Government Hospital, Giddalur, for medical examination. Therefore, the trial Court, after elaborate consideration of evidence on record, rightly found that P.W.1 was minor on the date of the commission of offence and she was kidnapped by Accused No.1 with an intention to commit rape on her, and the said evidence was confirmed by the Appellate Court. None of the findings is shown to be perverse or incorrect. Therefore, there are absolutely no grounds to interfere with the conviction recorded by the trial Court as confirmed by the Appellate Court. 16. With regard to the sentence, the incident is alleged to have taken place about 13 years back. The petitioner herein was aged about 26 years as on the date of commission of offence. After the incident, it is stated that the petitioner herein married another woman. Similarly, P.W.1 also married another person and they are living with their respective family members. Considering this aspect, a lenient view can be taken with regard to the sentence. Hence, the sentence of Rigorous Imprisonment for a period of three (3) years can be reduced to one (1) year. 17. In the result, the conviction recorded by the learned Assistant Sessions Judge, Markapur, in Sessions Case No.446 of 1999, vide judgment, dated 04.02.2002, against Accused No.1 of the offence punishable under Section 366A I.P.C. is confirmed, but the sentence is reduced from Rigorous Imprisonment of three (3) years to Rigorous Imprisonment for one (1) year, while maintaining the fine amount with default clause. Period of remand, if any, undergone by Accused No.1 during the course of investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 18. With the above modification in sentence, the Criminal Revision Case is dismissed. _______________ (K.C. BHANU, J) Date: 29th December, 2009 KL