IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD TUESDAY THE FOURTEENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 1298 OF 2004. Between: Kunchala Suresh … Appellant-A1 V/s. The State of A.P. Represented by its Public Prosecutor, High Court of A.P Hyderabad. … Respondent- Complainant Counsel for the appellant : Sri Md.Abdul Qader Counsel for the Respondent : Addl. Public Prosecutor The Court made the following Judgment: Judgment follows from 2nd page THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 1298 of 2004. JUDGMENT : This Criminal Appeal is directed against the judgment dated 30-6-2004 passed in SC.No. 473 of 2002 by the V Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, whereby and whereunder the appellant-A1 was convicted under section 235 (2) Cr.P.C. and he was sentenced to undergo Rigorous Imprisonment for a period of five years for the offence under section 363 of IPC and to pay a fine of Rs.2000/- in default, simple imprisonment for a period of six months. A-1 is further sentenced to undergo Rigorous Imprisonment for a period of seven years and to pay a fine of Rs.5000/- for the offence under section 376 of IPC in default to suffer simple imprisonment for a period of six months. The learned trial Judge further directed to run both sentences concurrently and the pre- detention period from 12-2-2001 to 03-5-2001 was allowed. Whereas A-2 and A-3 were found not guilty of the offence under section 366-A and 376 of IPC and they were acquitted under section 235 (1) Cr.P.C. 2. The case of the prosecution is that the complainant, Smt.T.Seshamma, mother of the victim girl Kum.T.Veeramani @ Nagamani has lodged a complaint on 02-2-2001 at 06:00 p.m. alleging that her elder daughter Nagamani aged 13 years studying in VIII class in St.Theresa School went to vegetable market and did not return home, though she made efforts to trace her out but could not trace her out. Basing on the said complaint, the Inspector of Police registered a case in Cr. No. 33/2001 under the Head Girl missing and investigated into. During the course of investigation, the victim girl Veeramani @ Nagamani came to police station along with her father and stated that on 02-2- 2001 one K.Suresh, who is their relative lured her to marry her and took her to Bangalore and married her and returned to Turkayamjal to the house of brother of Suresh and on coming to know the same her father went to Turkayamjal and on seeing him, the said Suresh fled away and he brought his daughter to police station and further his daughter stated him that the said Suresh participated in sexual inter course with her at Bangalore during their stay. On enquiry with the victim she revealed that a few months back, when they went to Vemapadu, as her grand father died, the said Suresh/accused came into contact with her and he informed that his sister Rajani and brother-in-law Malyadri (A2 and A3) are residing in Moulali and his brother Srinivas is residing in Turkayamjal and later Suresh and the victim girl Veeramani @ Nagamani fell in love with each other and as such the sister and brother-in-law of A-1 instigated the victim girl to marry A-1, for which her parents did not accept, as such A-2 and A-3 directed A-1 and the victim to go to some other place and celebrate their marriage and on 29-1-2001, A-1 came to the house of victim and informed her to wait at Sanathnagar Bus stand on 02-2- 2001 in the evening and accordingly she went there on 02-2-2001 where A-1 met her and took her to Bangalore. At Secunderabd bus stand, his brother-in-law and sister came there and handed over them a suitcase containing clothes and advised them to celebrate the marriage. At Bangalore A-1 married the victim and took her the house of his friend by name Prasad and there he stayed along with the victim girl for about four days. During their stay at Bangalore, he participated in sexual inter course with her and later they both went to Kavali and from there they came to Turkayamjal on knowing that her parents filed a complaint in police station. Her father came to that place and on seeing him, A-1 fled away and her father brought her to Police Station. Basing on the said statement of the victim, the section of law was altered from girl missing to section 366 (A) and 376 IPC. The facts and evidence collected during the course of investigation established that A-1 committed offences punishable under section 366-A and 376 of IPC and A-2 and A-3 have committed an offence punishable under section 109 of IPC. 3. The learned VI Metropolitan Magistrate, Hyderabad, took the charge sheet on file against A-1 to A-3 for the offences under section 366-A and 376 IPC against A-1 and under section 366-A, 376 r/w. 109 IPC against A-2 and A-3 and registered the same as PRC.No.32 of 2001. After securing the presence of A-1 to A-3 before the said court, the learned Magistrate complied the formalities as contemplated under section 207 of Cr.P.C. After verifying the material on record, the learned Magistrate came to the conclusion that this is a case exclusively triable by the Court of Sessions and committed the same to the Court of Metropolitan Sessions Judge, Hyderabad, by virtue of committal order dated 01-11-2002 passed in PRC.No. 32 of 2001. 4. The learned Metropolitan Sessions Judge, Hyderabad, took the matter on file and made over the same to the Court of V- Additional Metropolitan Sessions Judge, Mahila Court, Hyderabad, for disposal according to law. 5. The learned V-Additional Metropolitan Sessions Judge, Hyderabad after hearing both sides, examined A-1 to A-3 and framed charge under sections 498-A and 306 of IPC which was read over and explained the same to them in vernacular language. A-1 to A-3 pleaded not guilty and claimed to be tried. 6. To substantiate its case, the prosecution examined PWs 1 to 9 and got marked Exs.P1 to P-7. 7. After closure of the prosecution evidence, A-1 to A-3 were examined under section 313 Cr.P.C. for the incriminating evidence appearing against them. But they denied the truth of the incriminating circumstances appearing against them in the prosecution testimony and submitted that they got defence evidence on their behalf and got examined DW-1 G.Jalaiah on their behalf and got marked Exs.D-1 and D-2 on behalf of defence. 8. On appreciation of the oral and documentary evidence adduced by the prosecution, the learned trial Judge found A2 and A3 not guilty for the offence with which they were charged and acquitted them but whereas A1 was convicted under section 235 (2) Cr.P.C. and he was sentenced to undergo Rigorous Imprisonment for a period of five years for the offence under section 363 of IPC and to pay a fine of Rs.2000/- in default, simple imprisonment for a period of six months. A-1 is further sentenced to undergo Rigorous Imprisonment for a period of seven years and to pay a fine of Rs.5000/- for the offence under section 376 of IPC in default to suffer simple imprisonment for a period of six months. The learned trial Judge further directed to run both sentences concurrently and the pre- detention period from 12-2-2001 to 03-5-2001 was allowed. 9. Aggrieved by the same, A-1 preferred the present Criminal Appeal. 10. Heard the learned counsel for the appellant-A1 and the learned Additional Public Prosecutor representing the State. 11. It is evident from the record that the victim girl even though deposed that she was forcibly taken away to Bangalore by the appellant herein. She admits in the cross-examination that she had not resisted the same and she was with A-1 for three days but he has not tried to inform any one regarding the said kidnap. It is the case of the prosecution that the age of the girl is about 13 years and that she being minor any consent by her not be consent in the eye of law. On perusal of the record and the entire evidence adduced by the prosecution, the prosecution has not established its case by any positive evidence that the girl was aged 13 years. Even though PW-1 stated that she is studying VIII standard but this court is unable to understand what prevented the prosecution from producing the date of birth certificate from the school when her aged is disputed by the appellant herein. Further no medical evidence is on record, more particularly towards the confirmation of age produced by the prosecution. In the absence of any legal acceptable evidence adduced by the prosecution to establish the age of the victim girl it is unsafe to convict the appellant herein for the above said charges that too when the evidence of the prosecutirix is not inspiring confidence of this court. In view of the failure on the part of the prosecution to prove the age of the victim girl, this Court is of the view that it is unsafe to convict the appellant for the said offences, giving benefit of doubt in favour of the appellant and the appellant is acquitted of all the charges. 12. The Criminal Appeal is accordingly allowed. ______________________ JUSTICE RAJA ELANGO 14-12-2010 I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 1298 OF 2004 CIRCULATION NO. 15 Date:14-12-2010 Court Master: I s L Computer No. 43