IN THE HIGH COURT OF JUDICATURE OF ANDHRAPRADESH AT HYDERABAD HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.676 of 2006 DATE: 18.11.2011 Between: Shaik Naseer and another …… Appellants And State of A.P. rep. by Public Prosecutor, High Court, Hyderabad …..Respondent HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.676 of 2006 JUDGMENT : The appellants 1 and 2/A-1 and A-2 were convicted by the lower Court under Sections 417 and 417/109 I.P.C respectively and were sentenced to rigorous imprisonment of one year and six months respectively together with fine of Rs.5,000/- each. Questioning the same, A-1 and A-2 filed this appeal. 2) A-2 is doing tailoring business. A-1 is nephew of A-2. The victim girl P.W-2 was learning tailoring work with A-2. It is alleged that A-2 abetted P.W-2 to have illegal intimacy with A-1 by dishonestly inducing P.W-2 that A-1 would marry her, and that A-1 made false promise and dishonestly induced P.W-2 that he would marry her and developed illegal sexual intimacy with her, resulting in P.W-2 getting pregnancy, and that when P.W-2 and her parents approached the accused for marriage of the victim, they denied to marry P.W-2. Plea of A-1 and A-2 is one of total denial and not guilty. After trial, though the lower Court found A- 1 and A-2 not guilty under Sections 376 and 376/109 I.P.C respectively, found them guilty under Sections 417 and 417/109 I.P.C respectively. 3) In this appeal, the appellants’ counsel contended that scientific evidence furnished by the prosecution by way of D.N.A profile indicates that A-1 is not biological father of the baby born to P.W-2 and that therefore, the basic fact of sexual intimacy between the two resulting in her pregnancy, is proved to be false. 4) P.W-14 is Assistant Director of Forensic Science Laboratory, Hyderabad. After collecting blood samples from P.W-2, A-1 and baby born to P.W-2, D.N.A profiles were prepared for all of them and comparison of the same was made in order to ascertain biological mother and biological father of the baby. P.W-14 deposed that allelic pattern of D.N.A profile of the female baby of P.W-2 was matching with allelic pattern of D.N.A profile of P.W-2 and was not matching with allelic pattern of D.N.A profile of A-1. He finally opines that autosomal STR analysis conclusively proved that A-1 is not biological father of female baby of P.W-2 who is the biological mother. Ex.P-7 is F.S.L report given to that effect. 5) P.W-2 deposed that A-1 is responsible for birth of her daughter. She says that A-2 forced her to participate in sexual intercourse with A-1 and that A-2 promised to perform marriage of A-1 and requested not to disclose illegal intimacy to her parents. She says that A-1 and A-2 made her falsely believe that A-1 would marry her. P.W-2 did not say specifically that before starting illegal intimacy with her, A-1 also promised to marry her. Evidence of P.W-2 that A-1 was responsible for birth of her daughter, is proved to be scientifically false. Scientific evidence adduced by the prosecution further proved that P.W-2 had sexually intercourse with third party due to which she developed pregnancy and ultimately gave birth to female baby and that A-1 was not responsible for birth of female baby to P.W- 2. In cross-examination she deposed that she does not know consequences of illegal intimacy and so she never prevented A- 1 from participating in sexual intercourse with her. She says that after she conceived, she insisted for marriage and that A-1 and A-2 promised her that A-1 would marry her and so she had not disclosed the illegal intimacy which she was having with A-1 to her parents. The alleged promise of A-1 and A-2 is subsequent to P.W-2 getting pregnancy. P.W-2 deposed that A-1 and A-2 stated to the elders that A-1 was not responsible for her pregnancy. She admits that A-1 and A-2 from the beginning were stating that A-1 was not responsible for her pregnancy. The said assertion of A-1 and A-2 is scientifically proved to be true. It is evident that having conceived pregnancy though some other male person, P.W-2 intended to legalise birth of her female child by claiming paternity of the child through A-1. This is nothing but cheating by P.W-2 herself. Having regard to the above evidence on record, I am of the opinion that evidence of P.W-2 that A-1 and A-2 were responsible for the alleged sexual intimacy of her with A-1, cannot be believed. The lower Court erred in finding A-1 guilty under Section 417 I.P.C and A-2 guilty under Section 417/109 I.P.C. 6) In the result, the appeal is allowed setting aside the convictions and the sentences passed by the lower Court against appellants 1 and 2/A-1 and A-2 and acquitting them. _______________________________ SAMUDRALA GOVINDARAJULU, J November 18, 2011 ksh