HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.A.No.21 of 2006 JUDGMENT: The appellant/accused was convicted by the lower Court under Section 376(F) IPC (mistake for Section 376(2)(f) IPC) and was sentenced to rigorous imprisonment of ten years and fine of Rs.1,000/-; and was also convicted under Section 506 IPC and was sentenced to simple imprisonment of six months. Questioning the same, the accused filed this appeal. 2. The victim girl/PW.1 who was aged 13 to 15 years as per Ex.P.8 age determination certificate issued by PW.11 who is Assistant Professor of Forensic Medicine, Kurnool Medical College, Kurnool, was occupant of Social Welfare Hostel at Mahabubnagar and was studying 5th Class. It is alleged that on 25.10.2003, PW.1 attained puberty and when she informed the same to her colleagues and workers in the hostel, Rs.35/- was collected from other students and the hostel workers asked PW.1 to go to her native place in Chinna Amudalapadu village, Manapadu Mandal and that she boarded train at Mahabubnagar and got down in Kurnool Railway Station on 27.10.2003 at 1.00 A.M. and that the accused took her to APSRTC Bus stand in an Auto and made her to sit there upto 5.00 A.M. and thereafter, took her to red gram fields and committed rape on her twice and that when she was screaming, morning walkers including PWs 2 and 3 rushed there and on seeing them, the accused ran away from that place. Plea of the accused is one of not guilty. After trial, the lower Court found the accused guilty of the above charges. 3. It is contended by the appellant’s counsel that there is no acceptable evidence of the offences and that at any rate, the victim PW.1 was a consenting party to sexual intercourse. 4. It is evidence of PW.1 that on 25.10.2003, she attained puberty and informed the same to the Cook in the hostel, as Warden was not available and that the Cook asked her to go to her native place and collected Rs.35/- from other students and that she boarded train at Mahabubnagar at about 7.00 P.M. and reached Kurnool at about 1.00 A.M. in the midnight and got down the train. She says that the accused came to her and asked her about her native place and that she informed the same to the accused and that the accused asked her to take a cup of tea, for which she refused and that when she was preparing to sleep on the platform, the accused informed that if she sleeps on the platform, the police will beat her. Therefore PW.1 became afraid to sleep on platform. She says that the accused took her to bus stand in an auto and stayed there till 5.00 A.M. and that the accused asked her to follow him to Chowrastha to board bus to go to her native place and that she followed the accused who took her to red gram field. She says that the accused pushed her down on ground and fell on her and committed rape on her and that when she raised cries, the accused closed her mouth with his mouth and that again for the second time the accused committed rape on her and that she resisted the accused and raised cries and that on hearing her cries, four persons came there and that on seeing them, the accused ran away and that those persons took her to the Police Station at about 7.00 A.M. She says that blood oozed from her private parts. 5. PWs 2 and 3 along with two others were going for morning walk and on hearing cries of PW.1, they went to the spot and rescued PW.1 and took her to II town Police Station, Kurnool. They saw the accused running away from the spot. Ex.P.1 is report given by PW.1 to the police. In Ex.P.1, PW.1 described the accused as unknown person. When PWs 2 and 3 identified the accused near Nandyal check post of Kurnool, PW.13 who is the Investigating Officer, and Sub-Divisional Police Officer, Kurnool, arrested the accused. During test identification parade conducted by the Magistrate - PW.12, PW.1 identified the accused as the person who committed rape on her. 6. PW.9 is the Medical Officer in Government General Hospital, Kurnool who examined PW.1 and who gave Ex.P.7 medical certificate giving details of injuries found on PW.1’s private parts and opining that there was forcible sexual intercourse on PW.1. Evidence of PW.1 coupled with the medical evidence undoubtedly proved the offence of rape against the accused. 7. Even though PW.1 gave sufficient reason to accompany the accused from Kurnool Railway Station to Kurnool bus stand, there was no reason as to why she left the bus stand along with the accused and reached red gram field when PW.1 was intending to go to her native village by catching a bus. She was in bus stand from 1.00 A.M. to 5.00 A.M. There was no necessity to go to Chowrastha to catch a bus. When the accused is stated to have asked PW.1 to accompany him to Chowrastha for catching the bus, PW.1 should have questioned the accused and should not have accompanied the accused from bus stand. Ex.P.1 reads that PW.1 and the accused reached red gram field in the outskirts of Kurnool by passing in front of a Cinema hall, Hundri Bridge, Temple, water canal etc. The conduct of PW.1 in accompanying the accused from bus stand to red gram field via the above spots, create some doubt in mind of the Court about the intention of PW.1 and the accused. In any event, there cannot be a valid consent on the part of PW.1 as she happened to be a minor, aged about 13 to 15 years as per age determination certificate and 10 years as per school certificate. The accused cannot be heard to say that PW.1 was a consenting party to sexual intercourse. Therefore, irrespective of any consent on the part of the victim, the accused cannot escape liability under Section 376(2)(f) IPC for having sexual intercourse with minor girl like PW.1. In these circumstances, I have no hesitation to come to the conclusion that the lower Court rightly found the accused guilty of the above offences and that conviction of the accused is proper and legal. 8. It is contended by the appellant’s counsel that since the date of judgment of the lower Court on 21.2.2005, the appellant is in custody and that there is discretion given under Section 376(2)(f) proviso, to the Court, to impose lesser punishment than the prescribed minimum sentence of imprisonment of ten years. 9. In the result, the appeal is dismissed, but in the circumstances of the case, altering period of sentence of imprisonment for the offence under Section 376(2)(f) IPC from ten years to seven years. ____________________________ SAMUDRALA GOVINDARAJULU,J Dt. 29th October, 2011. PNV