THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1773 of 2004 Date: 10.06.2011 Between: Patibandla Srinivasa Rao … Petitioner AND The State Inspector of Police, Sattenapalli, Atchampet P.S., Represented by the State Public Prosecutor, High Court of A.p., Hyderabad. … Respondents THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1773 of 2004 ORDER: The sole accused faced trial for the offences under Sections 376 and u/s.366-A IPC before the Court of the Additional Assistant Sessions Judge, Narasaraopet. Through the judgement dated 07.07.2004, the learned Additional Assistant Sessions Judge found the accused not guilty of the offence u/s.376 IPC and convicted the accused for the offence u/s.366-A IPC. The accused was sentenced to seven years Rigorous Imprisonment (RI) and also fine of Rs.5,000/-. The sole accused preferred an appeal in Criminal Appeal No.265 of 2004 before the III Additional Sessions Judge, Guntur. Through the judgment dated 13.09.2004, the conviction recorded by the trial Court was confirmed by the learned III Additional Sessions Judge. He, however, deemed it appropriate to modify the sentence of imprisonment from seven to three years R.I. He also considered it appropriate to reduce the fine imposed by the trial Court from Rs.5,000/- to Rs.2,500/-. The default sentence as recorded by the trial Court was maintained. Aggrieved by the same, the present revision is laid. 2. The case of the prosecution is that the sole accused induced the victim, who is PW.1, to go away with him on 21.09.2003 and that he subsequently committed rape upon PW.1. On the top of it, it is the case of the prosecution that the victim was 15 years old at the time of commission of the offence and that consequently, the accused was guilty of the offence u/s.376 IPC as well as 366 IPC. The trial Court framed charges u/s.376 IPC and u/s.366-A IPC. The prosecution examined as many as 14 witnesses. Exs.P.1 to P.13 were marked out of which, for the present purpose Exs.P.8 and P.11 are relevant. I shall refer to them at the appropriate time. After the conclusion of the trial, as already pointed out, the learned trial Judge acquitted the accused for the offence u/s.376 IPC and convicted him for the offence u/s.366-A IPC. The learned Additional Sessions Judge confirmed the same in the appeal. 3. Relevant for the purpose of present case is the fact that the trial Court felt that PW.1 was a consenting party for the going away with the accused and for the carnal acquaintance with the accused. Both the trial Court and the appellate Court consequently considered that the accused was entitled for the acquittal but for the fact that the victim was a minor at the time of the commission of the offence. Sri B. Chinnappa Reddy, learned counsel for the revision petitioner/accused contended that PW.1 was a major at the time of the incident and that it should at least be presumed that PW.1 was a major at the time of the incident by the operation of benefit of doubt. H e inter alia drew my attention to the findings of the trial Court that PW.1 was a consenting party for the offences u/s.376 and 366-A IPC and that the prosecution shifted the scene of offence. I am afraid that there was no incidence of the shift of scene of offence as contended by the learned counsel for the revision petitioner. As rightly submitted by the learned Public Prosecutor, the scene of offence was not confined to one place but was spread over several places. I, therefore, agree with the contention of the learned Public Prosecutor that the prosecution was not guilty of shifting the scene of offence. 4. Primarily the arguments of the learned counsel for the revision petitioner revolved round the question of the age of PW.1. Incidentally, the learned counsel for the revision petitioner also contended that the offence u/s.366-A IPC was not made out even otherwise. Section 366-A IPC reads: “366-A. Procuration of minor girl.— Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.” 5. The accused would be guilty of the offence u/s.366-A IPC if he induces a minor girl or forces or seduces and minor girl to consent for illicit intercourse. It is the case of the learned counsel for the revision petitioner that the prosecution failed to make out any case of inducement, force or seduction by the revision petitioner. 6. I may notice at this stage some of the facts of the case. Ex.P.12 is the original FIR lodged by PW.2, father of PW.1. In Ex.P.12, it was stated that PW.1 and the accused went away, that PW.1 did not return home, that he came to know of the same through villagers and relatives and that he considers that the accused has taken away PW.1. On the strength of the complaint of PW.2, Ex.P.12 FIR was issued. Ex.P.12 was for the offence u/s.366-A IPC. Subsequently, PW.1 was traced. The statement of PW.1 was recorded and altered FIR under Ex.P.13 was issued on 09.10.2003. The section was altered from Section 366- A IPC to the offence u/s.376 IPC in the altered FIR. The basis of the altered FIR is the statement of PW.1. 7. In her statement, which was registered as Ex.P.13, PW.1 primarily stated that the accused started walking along by her side and asked PW.1 to follow him, by catching hold of her hand. PW.1 further stated in the complaint that the accused threatened PW.1 that he would kill her unless he accompanies her. We are not concerned with the subsequent part of the complaint, which relates to the allegation of rape. The petitioner was already acquitted for the said offence. Inasmuch as the allegation of PW.1 relates to the present revision, the case of PW.1 is that the accused caught hold of her and asked her to accompany him and threatened to kill her in the event she refused to follow him. But, the learned counsel for the revision petitioner contended that the allegation, assuming the same is proved, is not tantamount to force. I do not agree with the contention of the learned counsel for the accused. If the accused caught hold of the hand of PW.1 and directed her to follow him with a threat that he would murder her otherwise, it would certainly be force. 8. It may be noticed that the force referred under Section 366- A IPC is not the physical force to abide by the demand of the accused. The force referred to in Section 366-A IPC is that the victim should be put to an apprehension that she would be forced to illicit intercourse. PW.1 did not speak about such a force in her statement, which was registered as altered FIR under Ex.P.13. 9. In fact, there is a reference to the claim that the accused promised to marry PW.1. It may, however, be recalled that this inducement was not at the time of the commission of offence, but was much later. Consequently, there was no question of an inducement for PW.1 to accompany the revision petitioner. I once again reiterated that there is no appeal from the State questioning the finding of the trial Court and the appellate Court that PW.1 was a consenting party to the whole episode. If PW.1 consented and accompanied the revision petitioner, the offence u/s.366-A IPC would not be made out except when PW.1 is a minor. Even in the alternative, the ingredient of the inducement to constitute the offence u/s.366-A IPC is not made out by PW.1 in her statement to police. This is the reason why the trial Court and the appellate Court rightly concluded that the offence u/s.366-A IPC was primarily not made out. 10. The learned counsel for the revision petitioner placed reliance upon Y. Srinivasa Rao v. State of A.P.[1]. In that case, the prosecutrix was alleged to be a minor. However, the prosecution failed to establish that the prosecutrix was below 18 years at the time of the commission of the offences u/s.376 and 366-A IPC. The medical evidence was not clear regarding the age of the prosecutrix. Giving benefit of doubt to the accused, the High Court of Andhra Pradesh acquitted the accused. 11. In Prakash v. State of Maharashtra[2], again there was a dispute regarding the age of the prosecutrix wherein the evidence levelled against the accused was for the offence u/s.376 IPC. On a question of fact, the Aurangabad Bench of the Bombay High Court concluded that there was no proof that the prosecutrix was below 16 years of age at the time of the alleged rape. Where the prosecutrix was found to be a consenting party, the High Court held that where there was no proof that the prosecutrix was the minor, the benefit of doubt for the prosecution of the offences u/s.366-A and 376 IPC go in favour of the accused. The High Court consequently acquitted the accused. 12. The learned counsel for the revision petitioner placed reliance upon the two decisions referred to above and contended that the prosecution failed to establish the age of PW.1 to be 15 and that where it was found that PW.1 was a consenting party to go away with the revision petitioner and to have carnal acquaintance with him, the benefit of doubt should accrue to the accused. 13. PW.9 is the Doctor, who examined PW.1 and issued Ex.P.8 medical certificate. PW.9 opined that PW.1 was about 17 years of age. He clarified that the age of PW.1 as stated by him was merely approximate. Curiously, he denied the suggestion that the age of the prosecutrix as stated by him has a margin of two years on either side. The ossification test has an error margin of two years on either side regarding the determination of the age of the person who was subjected to the test. If PW.9 concluded that PW.1 was about 17 years of age and his determination of the age was approximation only, I agree with the contention of the learned counsel for the revision petitioner that the prosecution did not clinchingly establish that PW.1 was a minor at the time of incident. 14. Ex.P.11 is the school leaving certificate. Ex.P.11, however, discloses, the date of birth of the petitioner as 17.06.1987. The alleged date of offence was on 27.09.2003. If so, PW.1 would be 16 years old at the time of commission of the offence and would be a minor. 15. In the ordinary circumstances, one shall go by the age as found in the school record. However, curiously by 1994 itself, PW.1 was a qualified voter. If PW.1 was born in 1987, by 1994 she would be around 7 years old. On the other hand, if PW.1 was a voter by 1994, assuming that she lied and got herself enumerated as a voter by 2003 nearly 9 years after 1994, PW.1 should necessarily be considered to be a major. Above all, the evidence regarding the age of PW.1 is not clinching. Ex.P.1 school certificate discloses that PW.1 was born on 17.06.1987. PW.9 certified under Ex.P.8 that PW.1 was about 17 years old by the time of the examination. Admittedly, PW.1 was a voter by 1994. These factors are contradictory to each other. In view of the evidence of the Doctor, who issued Ex.P.8, I am afraid that the age of PW.1 at 17 years as determined by PW.9 deserves to be given a leawage of two years on either side. If 2 years is added to 17 years as determined by PW.9, PW.1 would be a major. As rightly submitted by the learned counsel for the revision petitioner, the benefit of doubt regarding the age should be given to the accused where the age of PW.1 has not been clinchingly established by the prosecution. The purport of the two decisions relied upon by the learned counsel for the revision petitioner is also the same. I, therefore, agree with the contention of the learned counsel for the revision petitioner that the prosecution failed to establish clinchingly, and more so, beyond reasonable doubt, that PW.1 was a minor at the time of her going away with the accused. Assuming that PW.1 went away with the accused on inducement, PW.1 was a major and would not fall within the meaning of Section 366-A IPC. 16. However, the question that PW.1 could have accompanied the revision petitioner on his inducement would not arise where the trial Court and the appellate Court held that PW.1 was a consenting party. The only question, therefore, is whether PW.1 is a major or a minor. If PW.1 is a major, as she voluntarily went away with the revision petitioner, the revision petitioner would not be liable for any offence. 17. I have already concluded that the prosecution failed to establish beyond reasonable doubt that PW.1 was a minor at the time of the incident. The benefit of doubt consequently accrues to the accused/revision petitioner, so much so, PW.1 shall be construed to be a major by the date of the incident in this case. Once PW.1 is construed to be a major, no offence is made out against her by the revision petitioner. The revision petitioner consequently is liable to be acquitted for the offence u/s.366-A IPC under which he was convicted by the trial Court and the appellate Court. 18. Accordingly, this revision is allowed for the reasons set out above. The revision petitioner is found not guilty for the offence u/s.366-A IPC and is acquitted for the same. The fine amount, if already paid by the accused shall be refunded to him. _______________ K.G. SHANKAR, J Date: 10.06.2011 Isn [1] 1995 CRI .L.J. 1597 [2] 1997 CRI.L.J. 4199