HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2347 of 2004 JUDGMENT: The appellant/A.1 was convicted by the lower Court under Section 376 IPC and was sentenced to rigorous imprisonment of five years and fine of Rs.1,000/-. Questioning the same, A.1 filed this appeal. It is alleged that on 29.11.2001 at about 11.00 A.M. at Valuthimmapuram village when the victim girl-PW.6 along with another were returning from attending calls of nature, A.1 kidnapped the victim girl – Palika Aruna and committed rape on her. In the lower Court, A.1 was tried along with his mother-A.2 and his brother-A.3 for the charges under Sections 363, 363/109 and 376 IPC. Plea of the accused was one of not guilty. After trial, the lower Court found A.2 and A.3 not guilty under Section 363/109 IPC and A.1 also not guilty under Section 363 IPC, but A.1 was guilty under Section 376 IPC alone. 2. On reading of entire evidence on record, there can be no doubt or dispute of the fact that A.1 had sexual intercourse with the victim girl-PW.6 with consent. PW.6 also deposed in examination in chief itself that A.1 enjoyed her physically by participating in intercourse with her and that she believed words of A.1 that he would marry her, and thereafter she surrendered herself. In cross-examination, though she denied having stated to the police as in Ex.D.2, it is elicited from PW.11 who is the Investigating Officer that PW.2 stated to him as in Ex.D.2. In Ex.D.2 portion of her statement to the police, the victim stated that she loved the accused and therefore with her own wish without any pressure from any other, both of them decided to marry each other and hence she eloped with the accused. 3. PW.7 is the lady doctor and Gynecologist in Rangaraya Medical College, Kakinada. She examined PW.6 on 08.12.2001 and gave Ex.P.2 certificate. On vaginal examination, PW.7 noted that introitus admitting two fingers freely. She finally gave finding that the victim girl is used to sexual intercourse. There were no external injuries either on PW.6’s body or genitalia. Evidence of the victim girl PW.6 and lady doctor PW.7 discloses that PW.6 was a willing partner for sexual intercourse with the accused. 4. The only point to be considered would be PW.6’s age in order to find out whether her consent was obtained validly and legally. A sexual intercourse becomes a rape as defined under Section 375 IPC in case it was with or without consent of the girl, when she is under 16 years of age. Therefore it is for the prosecution to show that PW.6 was under 16 years of age by the date of offence. The prosecution did not produce any birth registration extract relating to the victim PW.6. The prosecution also did not produce any school certificate of the victim girl. The only evidence produced by the prosecution in this regard is certificate issued by PW.8 Professor of Forensic Medicine, Rangaraya Medical College, Kakinada as per Ex.P.3 to the effect that on general, physical and dental examinations, he is of the opinion that PW.6 is aged about 14 years at the time of his examination in December, 2001. In cross-examination, PW.8 stated that the said determination is subject to error of one year on either side. This evidence of PW.8 is based on his estimation on the basis of general, physical and dental examination. This medical evidence has to be weighed as against PW.6’s statements contained in the prosecution record. PW.7 lady doctor deposed in cross-examination that at the time of her examination of PW.6, PW.6 stated to her that she was 16 years old. Though PW.6 during trial in the lower Court stated that by the time of offence she was aged 13 years old, in cross-examination, she denied having stated as in Ex.D.3 to the police. PW.11 the Investigating Officer in cross-examination stated that PW.6 stated to him as in Ex.D.3 in her statement. Ex.D.3 portion of statement of the victim is to the effect that she was aged 16 years. As per PW.6’s own version before the police and before the Medical Officer, she was aged 16 years by then. Therefore PW.6 cannot be believed to say that she was aged 13 years by the date of offence. It is only on the statements of PW.6, it was stated in the charge sheet and it was also mentioned in the charge by the lower Court that PW.6 was aged 16 years by the date of offence. Therefore, this Court has no hesitation to conclude that PW.6 was aged 16 years by the date of offence and she was competent to give consent for sexual intercourse with A.1. The lower Court did not assess the evidence on record in the right direction and landed in erroneous conclusion insofar as the offence under Section 376 IPC is concerned. I do not agree with reasoning and conclusion of the lower Court on this aspect. 5. In the result, the appeal is allowed, setting aside the conviction and the sentence passed by the lower Court against the appellant/A.1 and acquitting him. __________________________ SAMUDRALA GOVINDARAJULU,J Dt. 12th December, 2011. PNV