IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE FIFTEENTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.892 OF 2004 Between: Vallu Rambabu & another ..... Appellant/Accused Nos.1 & 2 AND The Sate of Andhra Pradesh, Rep. through Public Prosecutor, High Court of A.P., Hyderabad, Through its Sub-Inspector of Police, Rajanagaram Police Station, East Godavari. ..... Respondent/Complainant The Court made the following: THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.892 OF 2004 JUDGMENT: The Criminal Appeal, under Section 374 (1) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 29.03.2004, in Sessions Case No.147 of 2003, on the file of the learned V Additional Sessions Judge (Fast Track Court), East Godavari at Rajahmundry, whereunder and whereby Accused No.1 was found guilty of the offences punishable under Sections 417 and 376 of the Indian Penal Code, 1860 (for short, “I.P.C.”), and sentenced to undergo Rigorous Imprisonment for a period of five years and to pay a fine of Rs.2,000/-, in default to suffer Simple Imprisonment for a period of six months for the offence punishable under Section 376 I.P.C. and to suffer Rigorous Imprisonment for one year for the offence punishable under Section 417 I.P.C., and both the sentences of imprisonment were directed to run concurrently. 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: P.W.1, the victim girl, was aged about 15 years by the date of the incident. It is alleged that P.W.1 fell in love with Accused No.1 who promised her to marry and therefore, she gave consent to Accused No.1 to have a sexual intercourse. Because of sexual intercourse, P.W.1 became pregnant. Later, her pregnancy was terminated. On one occasion i.e., on 09.12.2001 at about 9.30 a.m., while P.W.1 and Accused No.1 were found talking near the cattle shed, P.W.2, who is the father of P.W.1, caught hold of them in the presence of P.Ws.5 and 6. Then, P.W.2 raised a dispute before the elders. The elders detained both P.W.1 and Accused No.1 at Ramalayam temple during night time with an understanding to hold a Panchayat on next day morning. On the next day morning, Accused No.1 escaped from that place on the pretext of answering calls of nature. Thereafter, P.W.1 lodged Ex.P1-complaint with the police, Rajanagaram, on 13.12.2001 at about 5.40 p.m. P.W.15-Sub-Inspector of Police, Rajanagaram, registered a case and examined P.Ws.1 to 3 and recorded their statements. Thereafter, P.W.15 visited the scene of occurrence which is the house of P.W.2 bearing Door No.2-99, situated in Nandarada Village. P.W.15 observed the scene of occurrence in the presence of P.W.11 and others. He prepared a rough sketch of the scene of occurrence. He sent P.W.1 to the Government Hospital, Rajanagaram, for medical examination. He also examined P.W.13-Head Master of M.P.U.P. School, Nandarada, where P.W.1 studied. Accused No.1 said to have obtained anticipatory bail. P.W.15 also sent P.W.1 to the Forensic Professor, Rangaraya Medical College, Kakinada, for determination of age. After obtaining Ex.P8-Wound Certificate, dated 01.04.2002, and after completion of the investigation, P.W.15 filed the charge sheet. 3. The II Additional Sessions Judge, East Godavari, at Rajahmundry, framed the following charges against the accused: “That you (A-1) on or about the 10th day of May, 2001 at night time at Nandarada village, Rajanagaram Mandal, in the absence of the parents of Kukkala Veera Venkata Laxmi, entered into her house, induced her to believe that you would marry her and enjoyed her sexually and since then you have used to cohabit with her in the absence of her parents with your deceitful promise and refused to marry her, and thereby committed cheating, an offence punishable U/s.417 I.P.C. and within my cognizance. Secondly, that you, (A-1) on the above same date and place as mentioned in Charge No.1 supra, committed rape on Kukkala Veera Venkata Lakshmi, and thereby committed an offence punishable U/s.376 I.P.C. and within my cognizance. Thirdly, that you (A-1 and A-2) on or about the 17th day of July, 2001 at Vadayar Hospital, Rajanagaram, voluntarily caused Kukkala Veera Venkata Lakshmi a woman who miscarried, then being with child to miscarry without her consent such miscarriage not being caused by you in good faith for the purpose of saving the life of the said Veera Venkata Laxmi, and thereby committed an offence punishable U/s.313 I.P.C. and within my cognizance.” When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 15 and got marked Exs.P1 to P11. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances found against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, no oral evidence was adduced except marking Ex.D1. 6. The trial Court, after considering the evidence on record, came to the conclusion that Accused No.1 committed rape on P.W.1 and as P.W.1 was aged about 15 years, the question of consent does not arise, in view of the fact that Accused No.1 committed sexual intercourse with P.W.1 with a false promise that he would marry her and accordingly, convicted and sentenced him as above. As there was no evidence to show that Accused Nos.1 and 2 caused miscarriage of pregnancy of P.W.1, they were found not guilty of the offence punishable under Section 313 I.P.C. and accordingly, they were acquitted. Challenging the conviction and sentence, Accused No.1 filed the present Criminal Appeal. 7. Now the point for determination is whether the prosecution proved its case for the offences punishable under Sections 376 and 417 I.P.C. against Accused No.1 beyond all reasonable doubt and whether the judgment of the trial Court is correct, legal and proper? 8. Learned counsel appearing for the Appellant No.1 herein contended that there was abnormal delay in lodging Ex.P1- complaint, dated 13.12.2001; that a false case is foisted against Accused No.1 due to fear, as the parents of Accused No.1 may lodge a complaint against P.Ws.2 and 3 for missing of Accused No.1; that there is absolutely no evidence to show that P.W.1 was aged about 15 years by the date of incident; that P.W.12, the Professor, Forensic Medicine, Rangaraya Medical College, Kakinada, who conducted examination with regard to the determination of age of P.W.1, stated that P.W.1 was aged about 15 years and two years on either side can be taken to fix the approximate age; that if that is so, P.W.1 may not have been minor by the date of incident; that the discrepancies in the evidence of prosecution witnesses go to the root of the case, and therefore, he prays to set aside the conviction and sentence recorded by the trial Court against Accused No.1. 9. On the other hand, the learned counsel representing the learned Public Prosecutor contended that there is absolutely no reason for P.W.1 to speak false against the accused; that the evidence of P.W.10-doctor coupled with the evidence of P.W.13-Head Master of M.P.U.P. School, Nandarada, would clearly go to show that P.W.1 was aged about 15 years by the date of incident; that once the pregnancy of P.W.1 was terminated in the Vadayar Hospital, Rajanagaram, then only the parents of P.W.1 came to know about the illegal relationship of P.W.1 with Accused No.1, that there is no animus for P.W.1 to foist a false case of this nature against Accused No.1; that the trial Court, after elaborate consideration of evidence on record, rightly found Accused No.1 guilty, and there are no grounds to interfere with the same, and hence, she prays to dismiss the Criminal Appeal. 10. Section 376 I.P.C. reads as follows: “Punishment for rape: (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.” 11. Section 417 I.P.C. reads as follows: “Punishment for Cheating: Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.” 12. P.W.1 is the victim girl. According to her, she was aged about 15 years when she was having illicit contacts with Accused No.1. The evidence of P.W.1 further goes to show that she has given a consent to have a sexual intercourse with Accused No.1 because Accused No.1 promised to marry her. They used to meet in the cattle shed of P.W.1 frequently. P.W.1 was having illicit contacts with Accused No.1 six months prior to lodging of Ex.P1- complaint, dated 13.12.2001. Since the case of prosecution that sexual intercourse has been committed against P.W.1 by the Accused No.1, the age of P.W.1 assumes importance, because P.W.1 gave her consent to have a sexual intercourse with Accused No.1. 13. The evidence of P.W.12 would clearly go to show that P.W.1 was aged about 15 years by the date of incident. P.W.12 is the Professor, Forensic Medicine, Rangaraya Medical College, Kakinada, who examined P.W.1 for determination of age. On 19.12.2001, P.W.12 conducted general, physical, dental and radiological examination. After referring to the findings of P.W.12, he determined the age of P.W.1 as 15 years as on the date of the examination. Except giving a suggestion that P.W.1 was aged about more than 17 years by the date of incident, nothing has been elicited to discredit the testimony of P.W.12. P.W.12 is the competent doctor to determine the age. No doubt, the evidence of a doctor is in the nature of opinion evidence, but at the same time, the evidence of a doctor can safely be used to corroborate the other evidence, if any, available on record. 14. P.W.13 is the Head Master of M.P.U.P. School, Nandarada. P.W.13 gave evidence with reference to the School Admission Register. As per the School Admission Register, P.W.1 studied in his school from 24.07.1996 to 30.06.1998. As per the School Admission Register, the date of birth of P.W.1 is 15.07.1987 and P.W.13 issued Ex.P7, which is the Date of Birth Certificate, dated 14.12.2001. P.W.13 admitted that basing on the declaration given by the parents, he noted the date of birth of the child. If that is taken into consideration, P.W.1 would be less than 14 years by the date of incident. 15. Section 35 of the Indian Evidence Act consists of two parts. The first part is relating to an entry in any paper or official book register or record or electronic record stating a fact, any issue or around fact and made by a public servant in the discharge of his official duty as relevant. The second part is that by any other person in performance of a duty specially enjoyed by the law of the country in which such book, register or record or electronic record is kept is itself a relevant fact. 16. The School Admission Register has to be maintained in the school. As per the records, P.W.1 studied in the M.P.U.P. School from 24.07.1996 to 30.06.1998. Therefore, there was no scope or possibility to reduce the age of P.W.1 to be noted in the concerned register. Therefore, the School Admission Register is maintained by P.W.13 in accordance with law. Hence, the entry made in the School Admission Register can be relevant for the purpose of deciding the date of birth of P.W.1. Nothing has been elicited to discredit the testimony of P.W.13 and the recitals in Ex.P7. Therefore, from the evidence of P.W.13 coupled with the evidence of doctor, it is clear that P.W.1 is minor i.e., aged about 14 years by the date of incident in this case. The trial Court, after elaborate consideration of evidence on record, rightly came to the conclusion that P.W.1 was aged about 15 years by the date of the incident. 17. Now coming to the incident, the evidence of P.W.1 is very clear that she agreed to have a sexual intercourse with Accused No.1, as Accused No.1 promised to marry her. They fell in love with each other. During the absence of the parents of P.W.1 from the house, Accused No.1 used to have a sexual intercourse on the pretext that he would marry her. The evidence of P.W.1 would clearly disclose that on several occasions, Accused No.1 had a sexual intercourse with her. On one occasion, P.W.1 became pregnant. Though P.W.10, the doctor who conducted termination of pregnancy, did not support the case of the prosecution, but the evidence of P.W.10 is very clear that P.W.1 was admitted in the Vadayar Hospital, Rajanagaram, for termination of pregnancy. 18. P.W.14 is the doctor who examined P.W.1. She gave opinion that cervix might have been dilated for the medical termination of pregnancy or dysmenorrhea. Her evidence is clear that P.W.1 conceived, became pregnant and got operated. Nothing has been elicited to discredit her testimony. P.W.14 also observed that P.W.1 gave the history of missed periods for about two months prior to July, 2001. Therefore, from the evidence of P.W.1, it is clear that she was subjected to sexual intercourse with Accused No.1. Though the sexual intercourse was with the consent of P.W.1, but considering the fact that she was aged about 14 years, it is not a consent within the meaning of law. The question of consent does not arise. As P.W.1 herself stated that she gave consent to Accused No.1 to have a sexual intercourse, but she was found to be less than 14 years of age as on the date of giving consent, still, it is an offence punishable under Clause 6 of Section 375 I.P.C. 19. On 09.12.2001 at about 9.30 p.m., Accused No.1 took P.W.1 to the cattle shed and while they were talking together, P.W.2 caught hold of them in the presence of P.Ws.5 and 6. Then, P.W.2 raised a dispute before the elders. The elders detained both P.W.1 and Accused No.1 at Ramalayam temple during night time with an understanding to hold a Panchayat on next day morning. On the next day morning, Accused No.1 escaped from that place on the pretext of answering nature call. According to P.W.7, the fact that P.W.1 and Accused No.1 were detained in Ramalayam Temple of the village can be accepted because of the evidence of P.Ws.5 and 7. 20. The evidence of P.W.5 would go to show that Accused No.1 escaped from the Ramalayam temple on the ground that he has to go out to answer the calls of nature. P.W.6 is the husband of the Sarpanch who went to the cattle shed of P.W.1 and found P.W.1 and Accused No.1 in the cattle shed. 21. Similarly, the evidence of P.W.9, who is running Dr.Vadayar’s Hospital, Rajanagaram, would go to show that P.W.1 became pregnant. Though P.W.9 did not support the case of the prosecution, that does not mean his evidence would be erased from the record. Such part of his testimony, which inspires confidence, can be used to corroborate with the other evidence on record. But, the evidence of P.W.8, who is the Nurse in Dr.Vadayar’s Hospital, Rajanagaram, would go to show that Accused Nos.1 and 2 are the persons who brought P.W.1 to the hospital of P.W.9. P.W.8 also did not support the case of the prosecution, but that does not mean her evidence would be wiped out from the record. Such part of her testimony, which inspires confidence, can be used to corroborate the other evidence if any, available on record. The evidence of P.W.8 can be used to corroborate the evidence of P.W.7 because he stated that he saw Accused Nos.1 and 2 and P.W.1 in the Vadayar Hospital, Rajanagaram. P.W.7 is the person who informed the parents of P.W.1 about her. Except suggesting that P.W.7 does not know anything, nothing has been elicited to discredit his testimony. After lengthy cross-examination of P.W.1, nothing has been elicited to discredit her testimony since she fell in love with Accused No.1 and had a sexual intercourse on several occasions with Accused No.1 in secrecy which would not be possible to know by any third person. There is no other reason for P.W.1 to foist a false case of this nature saying that Accused No.1 was the person who committed sexual intercourse with her. In the absence of any animus, the evidence of P.W.1 can be put in the category of wholly reliable. 22. The earliest version of the incident given by P.W.1 would go to show that she was aged about 15 years. On two or three occasions, Accused No.1 stated that he was loving her and wanted to marry. That on 10.05.2001, during night time, in the absence of her parents, Accused No.1 came to the house of P.W.1 and told her that he would marry and so saying, he made a sexual intercourse with her. Similarly, in the absence of her parents, Accused No.1 and P.W.1 used to meet each other. On one occasion, she became pregnant. When she informed the same, Accused No.1 told her that he was not going to marry a pregnant woman. Therefore, both Accused Nos.1 and 2 took P.W.1 to Dr.Vadayar’s Hospital, Rajanagaram, and got operated and sent her to the house of her sister. Later, P.W.3, who is the mother of P.W.1, came to know about the same from one M.Satyavathi. When P.W.3 questioned P.W.1, she informed about the sexual intercourse with Accused No.1. On one occasion, Accused No.1 and P.W.1 were caught red handedly by P.W.2. Therefore, the earliest version as stated in Ex.P1 is completely in corroboration with the evidence of P.W.1. Therefore, the recitals in Ex.P1 can be used to corroborate the evidence of P.W.1. 23. There was a delay with regard to the lodging of Ex.P1-complaint. The first incident of sexual intercourse has taken place on 10.05.2001 and thereafter, they used to meet frequently in the absence of her parents from the house. The report was given on 13.12.2001. But, as seen from Ex.P9, it is clear that the pregnancy of P.W.1 was terminated once. P.W.2 came to know about the love affair between P.W.1 and Accused No.1 in the month of December, 2001. Therefore, P.W.2 came to know about the love affair of P.W.1 and Accused No.1 subsequently. Hence, in these circumstances, the delay in lodging Ex.P1-complaint cannot be shown to have been taken with a view to implicate Accused No.1 falsely. The honour of the family would be spoiled if P.W.2 rush to the Police Station to lodge a complaint. The marriage prospects of P.W.1 would be diminished. Therefore, in the facts and circumstances of the case, even if there is a delay in lodging the complaint, that by itself is not a ground to reject the prosecution case, especially, when P.W.1 has no animus or grouse to foist a false case of this nature. The trial Court, after elaborate consideration of evidence on record, found Accused No.1 guilty of the offence punishable under Section 376 I.P.C., in view of the fact that Accused No.1 made a false promise that he would marry P.W.1 and obtained her consent to have a sexual intercourse, which can be said to be an offence punishable under Section 417 I.P.C. There are absolutely no grounds to interfere with the conviction and sentence recorded by the trial Court against Accused No.1. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 24. Accordingly, the Criminal Appeal is dismissed confirming the judgment, dated 29.03.2004, in Sessions Case No.147 of 2003, on the file of the learned V Additional Sessions Judge (Fast Track Court), East Godavari at Rajahmundry. _______________ (K.C. BHANU, J) Date: 15th December, 2009 KL