THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No. 1327 of 2004 29th July, 2011 Between: Upparapu Narsaiah … Appellant / Accused And The State of Andhra Pradesh rep by Public Prosecutor … Respondent THE HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.1327 of 2004 JUDGMENT: This appeal is directed against the conviction and sentence passed by the learned Assistant Sessions Judge, Asifabad in S.C.No.481 of 2001. The appellant herein is the father of the victim girl and has committed a heinous offence of rape on his own daughter and made her pregnant. The victim girl died after giving birth to a child during the pendency of the case. According to the prosecution, the victim girl-Upparapu Salamma is the youngest of the three daughters of the accused. The wife of the accused died about 15 years ago and the accused, along with his daughters and son, was living jointly; and the victim girl has lodged a complaint on 27.07.2001 stating that during the last summer season, the accused came in a drunken condition, committed rape on her under threat and when she tried to expose the same, he threatened her with dire consequences, and finally she disclosed the fact to her relatives one month back who had taken her to the doctor and the doctor diagnosed that she is carrying six months pregnancy. The said complaint was received by PW8 and he registered the same as Crime No.98 of 2001 under Section 376 of IPC, and recorded the statement of the witnesses and sent the victim girl to the Government Civil Hospital, Luxettipet for examination to ascertain the age of pregnancy and thereafter she was referred to K.M.C. Warangal for determination of her age. The lady doctor who examined the victim girl confirmed about her pregnancy and issued certificate. The accused was arrested on 06.08.2001 and was remanded to judicial custody. Thereafter, the accused was sent to Government Civil Hospital, Luxettipet for potency test, and the medical officer examined the accused and issued potency certificate. The victim girl died on 23.08.2001 after her delivery in Government Hospital, Karimnagar and on coming to know about the death of the victim, the S.I of Police rushed to the hospital and conducted inquest over the dead body of victim girl. The learned Assistant Sessions Judge framed charge under Section 376 IPC against the accused and the accused pleaded not guilty for the said charge. The prosecution in order to establish the said charge, examined PWs.1 to 9 and got marked Exs.P1 to P6. No oral and documentary evidence was adduced on behalf of the accused. Taking into consideration the said oral and documentary evidence, the learned Assistant Sessions Judge found the accused guilty for the charge under Section 376 IPC and convicted and sentenced to undergo Rigorous Imprisonment for eight years and also to pay a fine of Rs.5,000/- in default to undergo Rigorous Imprisonment for six months. This appeal is filed on behalf of the accused by a legal aid counsel appointed by the State. Since the victim girl is no more and as she died during the stage of investigation itself, the evidence of the victim girl is not available in this case. Therefore, the circumstantial evidence which led to the detection of the offence is to be taken into consideration. PW1 is the brother of the victim girl and son of the accused. He has stated that about one year back, he came to Dharmaraopet from Bombay, and at that time, he noticed the stomach of his sister Salamma was swollen. Then PWs.2, 3, 4 took her to hospital at Mancherial and the lady doctor revealed that his sister Salamma was pregnant and she was carrying 6 months and 15 days pregnancy. After returning home, PW2 enquired the victim girl Salamma as to what had happened and she had disclosed that six months prior to that date, on one day the accused in a drunken condition had sexual intercourse with her by force. PW1 stated that Salamma died after giving birth to a male child at Karimnagar. In the cross examination also he stated that the accused was having illicit intimacy with Salamma about six months prior to coming to know about pregnancy and his sister revealed that her father had sexual intercourse with her by force. He stated that the deceased sister Salamma was mentally unsound and no one was believing the words of Salamma. PW2 who is the wife of PW1 has also supported the version of PW1. She stated that she enquired the victim girl about pregnancy which was confirmed by the lady doctor at Mancherial and Salamma has disclosed to her that the accused has committed rape on her against her will by coming home in a drunken condition. PW3 who is the sister of the victim girl Salamma, turned hostile to the prosecution even though she has stated that her sister was carrying six months pregnancy when she was examined by the lady doctor, but she stated that she did not know how she became pregnant. PW4 who is the resident of Dharmaraopet is an independent witness, who knows the accused and PWs.1 to 3 and according to him, about a year back, PW3 who is the elder sister of Salamma informed her that the stomach of Salamma was swollen and she was weak and requested him to examine her. He went to the house of the accused and noticed that the stomach of Salamma was swollen and he advised them to take Salamma to Macherial for medical examination. Himself along with PWs.1 to 3 took Salamma to a lady doctor, Dr. K. Shyamala Rani. The said doctor took scanning and revealed that Salamma was six months pregnant. According to him, Salamma was a completely sound mind girl and a clever girl also. He further stated that the accused is habituated to drinking. PW4 stated that he advised PWs.2 and 3 to enquire Salamma as to how she became pregnant and she revealed that one day, in a drunken condition, the accused had sexual intercourse with her by force and subsequently also he did like that and she became pregnant with the accused. Even in the cross examination of PW4, there is nothing to disbelieve his version about enquiring Salamma as to how she became pregnant and about his taking the victim girl Salamma for medical examination to Macherial. PW5 is another independent witness who is a resident of Dhrarmaraopet. He also supported the version of PW4 with regard to taking Salamma to a lady doctor at Mancherial for medical examination and after returning, enquired her and she revealed about the accused committing rape on her. PW6 is the doctor who has examined the victim girl Salamma. At the request of the Police on 28.07.2001 to examine the victim girl, she examined her on the same day and found that she was carrying 26-28 weeks pregnancy. As seen from the age certificate issued by the Associate Professor of Forensic Medical Department, KMC Warangal, the age of the victim girl Salamma is about 16 to 17 years. PW7 is the scribe of the complaint given by Salamma, and according to him, he has drafted the complaint-Ex.P2 as per the instructions of Salamma and after knowing the contents, Salamma signed on Ex.P2-complaint in his presence. Therefore, the victim girl has lodged complaint Ex.P2 which was got drafted by PW7, wherein she categorically stated that in summer season one night, her father came in a drunken condition and forcibly committed rape on her and she raised cries and her father threatened to kill her and from that day onwards, her father used to have sexual intercourse with her now and then. Her father threatened her sister Lingavva also. She informed the said fact to her senior maternal mother Narsamma, her brother Sathaiah and to her caste elders. They took her to hospital one month back and the doctor examined her and confirmed that she was carrying six months pregnancy, and she got pregnancy due to her father, who forcibly had sexual intercourse with her. The version of the victim girl in Ex.P2 was supported by the evidence of PWs.1, 2 and 4. Moreover, PW1 is the son of the accused and there is no motive attributed to him to implicate him in a false case or involve him in a rape case, and the victim girl being the daughter of the accused, will not make such a false complaint against her father having illicit intimacy with her. Therefore from the above evidences, it is established that the accused has committed rape on the victim girl Salamma and made her pregnant. Moreover, the victim girl is aged about 15 to 17 years as on the date of lodging the complaint. Since the pregnancy has occurred more than six months prior to lodging the complaint, the victim girl might be below 17 years of age, and even if she has consented to have sexual intercourse with the accused, her consent cannot be treated as a valid one. As such the prosecution is able to establish that the accused has committed the offence under Section 376 IPC, and the learned Sessions Judge has rightly convicted and sentenced the accused under Section 376 IPC. With regard to the quantum of sentence, the learned Sessions Judge has imposed Rigorous Imprisonment for a period of eight years and also to pay a fine of Rs.5,000/- in default to undergo Rigorous Imprisonment for six months. In view of the nature of the offence committed by the accused against his own daughter, the said punishment imposed by the learned Sessions Judge does not warrant any interference by this Court. In the result, the appeal is dismissed and the conviction and sentence passed by the learned Assistant Sessions Judge, Asifabad in S.C.No.481 of 2001 is hereby confirmed. _____________________________ JUSTICE P. DURGA PRASAD 29th July, 2011 KSM