IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE THIRD DAY OF DECEMBER TWO THOUSAND AND NINE HON’BLE SRI JUSTICE G. BHAVANI PRASAD Criminal Appeal No.1641 of 2005 Between: The Public Prosecutor, High Court of A.P., Hyderabad .. Appellant AND Mudedla Srinivasarao and others .. Respondents/ Accused Appeal against the judgment in Criminal Appeal No.123 of 2003 on the file of VI Additional District and Sessions Judge (FTC), Krishna, Machilipatnam, dated 15-06-2004 setting aside the judgment of conviction and sentence, dated 08-09-2003 in S.C. No.219 of 2003 on the file of the Additional Assistant Sessions Judge (FTC), Gudivada, praying to set aside the order of acquittal by the appellate Court and to convict the accused for the offences with which they were charged. The appeal coming on for hearing, upon perusing the grounds filed in support thereof and upon hearing the arguments of the Public Prosecutor for the appellant and of Sri T. Pradyumna Kumar Reddy, Advocate for the respondents, the Court made the following: JUDGMENT: The accused in S.C. No.219 of 2003 on the file of the Additional Assistant Sessions Judge (Fast Track Court), Gudivada were convicted by the trial Court by judgment, dated 08-09-2003 and were acquitted in appeal by the VI Additional District and Sessions Judge (Fast Track Court), Krishna, Machilipatnam by judgment, dated 15-06-2004 in Criminal Appeal No.123 of 2003, leading the State represented by the learned Public Prosecutor to approach this Court with this appeal. The factual background for the appeal is that accused 1 to 3 were known to P. Jayasri and it was alleged that on 04-03-2003 at 5-30 P.M., accused 1 to 3 moving in car No.AP16U 3113 found P. Jayasri alone at Gopala Krishna Theatre center. The 1st accused was alleged to have invited her to come into the car to be dropped at her house and on her entering the car, it was alleged that accused 1 to 3 kidnapped her to Mudinepalli to a thatched house belonging to the relations of the 3rd accused. It was further alleged that the 1st accused and P. Jayasri were left at Mudinepalli in the said house by the 2nd and 3rd accused, where the 1st accused attempted to commit rape on her. One Koteswara Rao was stated to have rushed to the place on hearing the cries of P. Jayasri and to have saved her and then accused 1 to 3 were alleged to have got back P. Jayasri to Gudivada in a lorry and to have left her there warning her not to reveal the incident to her parents. On the report of P. Jayasri, Crime No.38 of 2003 was registered by the Sub-Inspector of Police, Gudivada, I Town Police Station and after arresting the accused and after concluding the investigation, accused 1 to 3 were prosecuted for the offence punishable under Section 363 of the Indian Penal Code originally and Section 366-A of the Indian Penal Code later and the 1st accused was prosecuted for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code. After furnishing copies of documents to the accused, the Magistrate committed the case to the Court of Session where the accused denied the charges framed against them. P.Ws.1 to 12 were examined and Exs.P.1 to P.9 and M.O.1 were marked during trial and the accused denied the incriminating circumstances appearing in the evidence against them when they were examined under Section 313 of the Code of Criminal Procedure and they had no defence evidence except Ex.D.1. The trial Court rendered its judgment extracting the entire sequence of events including the evidence in detail and felt that the evidence of P.Ws.1 to 4 showed that P.W.1 did not voluntarily accompany accused 1 to 3 and that she was not a willing and consenting party for the attempt of the 1st accused to commit rape. While noting that P.W.1 did not disclose her allegations to anybody, the trial Court attributed the same to fear and it also noted that there was delay in giving report to the police, but felt that it was satisfactorily explained with reference to the failed attempts for mediation. Referring to the precedents about the acceptability of the evidence of the prosecutrix alone, the trial Court accepted the version of P.W.1 about her age being about 17 years by the time of the incident and about her being taken away by accused 1 to 3 in the manner in which she alleged. The trial Court accordingly concluded the accused to have committed the offences with which they were charged and after examining them concerning the question of sentence, the trial Court felt that no sympathy need be shown to the accused and hence, convicted accused 1 to 3 and sentenced them to undergo rigorous imprisonment for seven years each and pay a fine of Rs.100/- each for the offence punishable under Section 366-A of the Indian Penal Code and also sentenced the 1st accused to undergo rigorous imprisonment for five years and pay a fine of Rs.100/- for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code. The convicted accused challenged the same in Criminal Appeal No.123 of 2003 and the appellate Court found that except the statement of P.W.1 that she was born on 04-03-1986, there was no other evidence on record to prove that she was under 18 years of age or was a minor by the time of the incident. The appellate Court also found that the 1st accused and P.W.1 admittedly loved each other and agreed to marry prior to the incident and that the 2nd accused is no other than the house owner in whose house the parents of P.W.1 were living at that time. The prior acquaintance with the 1st and 2nd accused for P.W.1 and the manner in which she entered the car and accompanied accused 1 to 3 even according to the prosecution version were considered by the appellate Court as probablising that she accompanied accused 1 to 3 voluntarily. The appellate Court also referred to the events that allegedly happened after the incident, during which the 1st accused first agreed to marry P.W.1 and later refused to marry her, only after which, a report was given to the police. The appellate Court felt that P.W.1, a working woman and a worldly- wise individual, knew the repercussions when she entered the car in which accused 1 to 3 were travelling and when she travelled all the way from Gudivada to Mudinepalli and back without any murmur, she must have been a consenting party. The appellate Court also felt that the house where P.W.1 was kept allegedly was in a residential locality and any resistance by P.W.1 to any attempts by the 1st accused to rape her would have attracted the residents of the locality. No such attempt to save herself appeared to have been made by P.W.1 from the circumstances and therefore, the appellate Court felt that the prosecution failed to prove the guilt of the accused for the respective offences beyond reasonable doubt and consequently, set aside the judgment of conviction of the trial Court and acquitted the accused by its judgment, dated 15-06-2004. The State preferred the present appeal contending that the reversal of the judgment of the trial Court by the appellate Court was contrary to law and the evidence on record and it was claimed that the presumed consent was incorrectly presumed contrary to the probabilities arising out of the evidence. Hence, the appellant desired that the judgment of the trial Court be restored. Sri K. Venkateswara Rao, learned counsel representing the learned Public Prosecutor for the appellant and Smt. G. Purnasri, learned counsel representing Sri T. Pradyumna Kumar Reddy, learned counsel for the accused/respondents are heard. The point for consideration is whether the prosecution proved beyond reasonable doubt the guilt of accused 1 to 3 for the offence punishable under Section 366-A of the Indian Penal Code and the guilt of the 1st accused for the offence punishable under Section 376 read with Section 511 of the Indian Penal Code ? Point: Firstly an offence under Section 366-A of the Indian Penal Code is one involving procuration of a minor girl. The inducement to go from any place or to do any act should be in respect of a minor girl under the age of 18 years and such inducement also should be for the purpose of forcing or seducing such girl to illicit intercourse with another person. Kidnapping or abduction otherwise punishable under the other provisions of the Indian Penal Code also necessarily involve the existence of similar mens rea and absence of consent of the person kidnapped or abducted. P.W.1 was admittedly an educated girl, who studied up to 10th class. But as noted by the appellate Court, the school record was not collected by the investigating officer or filed by P.W.1 into Court. Similarly, she was also not subjected to any medical examination by a competent expert for determination of her age on the basis of her physical features and relevant scientific tests and principles. Therefore, the only material on record concerning the age of P.W.1 was the statement of P.W.1 herself that she was born on 04-03-1986. The trial Court straight away accepted such a claim in its judgment, but the appellate Court observed that in the absence of production of extract of register of Births and Deaths or school record or the result of any medical examination by a competent expert, the age cannot be considered to be that stated by P.W.1. The appellate Court refusing to act upon the self- serving and interested claims of P.W.1 in this regard, cannot be faulted, as the possibilities for satisfactory corroboration of such claims were not availed by the prosecution. The trial Court in its lengthy judgment refused to place any reliance on the abnormal delay in lodging the first information report and straight away accepted the evidence of P.Ws.1 to 4, 6 and 12 and it found corroboration to such evidence even from the evidence of P.W.5, P.W.7, P.W.8, P.W.10 and P.W.11 who turned hostile and were cross-examined by the prosecution. While it is difficult to find such corroboration which was detected by the trial Court from the evidence of hostile witnesses notwithstanding the fact that such hostile evidence need not be discarded altogether, the trial Court did not, in effect and substance, give any reasons for coming to the conclusion that the allegations against accused 1 to 3 should be accepted as proved beyond reasonable doubt. The appellate Court found and it is true that P.W.1 is a working woman and is not innocent. Not only P.W.1 travelled along with accused 1 to 3 in the car while going and in the lorry while returning, but also waited patiently when the car was being repaired on the way to Gudivada. The allegations of P.W.1 that she was made to enter the car by the accused under the circumstances claimed by her, cannot appear natural and any element of force or deceit or inducement cannot be presumed from the manner in which accused 1 to 3 and P.W.1 travelled between Mudinepalli and Gudivada without any complaint absolutely from P.W.1 in any manner to anybody in spite of tremendous scope for so complaining to independent persons, if her allegations are true. Therefore, the appellate Court rightly presumed her to be a consenting party for the travel along with accused 1 to 3 and she was not a minor girl and she willingly travelled voluntarily with accused 1 to 3. No offence not only under Section 366-A of the Indian Penal Code but under any other provisions relating to kidnapping or abduction can be considered to have been made out. When the alleged attempt to commit rape was also stated only by the alleged victim and none else and when such attempt to commit rape was not complained against by P.W.1 to anybody till her belated report on 15-03-2003 and when there were absolutely no physical features probablising any attempt by the 1st accused to commit rape on P.W.1 against her consent, such attempt also could not have been accepted. When P.W.1 admitted that she did not inform about the alleged attempt to anybody till after quite some time, the conclusions of the appellate Court about the failure of the prosecution to prove the said offence cannot be considered improper or unreasonable. Under the circumstances, the acquittal of the accused by the appellate Court is not susceptible to any interference and it is well settled that any judgment of acquittal can be interfered with only for very strong reasons and on very convincing circumstances. Hence, the appeal cannot succeed. Accordingly, the appeal is dismissed. ____________________ G. BHAVANI PRASAD, J Date: 03-12-2009 Svv