IN THE HIGH COURT OF JUDICATURE ANDHRA PRADESH AT HYDERABAD WEDNESDAY THE FIFTEENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 1119 OF 2004. Between: Ekambaram @ Raju … Appellant V/s. The State of A.P. Represented by its Public Prosecutor, High Court of A.P Hyderabad. … Respondent- Complainant Counsel for the appellant : Sri L. Harish Counsel for the Respondent : Addl. Public Prosecutor The Court made the following Judgment: Judgment follows from 2nd page THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 1119 of 2004. JUDGMENT : This Criminal Appeal is directed against the judgment dated 26-5-2004 passed in SC.No. 38 of 2002 by the Additional District and Sessions Judge, Ranga Reddy at LB Nagar, whereby and whereunder the appellant was found guilty under section 366-A of IPC and he is convicted under section 235 (2) Cr.P.C. and sentenced to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs.3000/- in default to suffer six months simple imprisonment for the said offence and he was not found guilty under section 376 IPC and section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act and was acquitted under section 235 (1) Cr.P.C. 2. The case of the prosecution is that the accused is the neighbour of S.Srirama Murthy, who is scheduled caste person and tailor, who got two daughters, Sirisha and Anusha, aged 14 and 12 years respectively. The accused used to frequently visit the house of S.Srirama Murthy and friendly with Sirisha. It is further alleged that the accused taking advantage of friendship forcibly took her to Mahbubnagar on 17-10-2001 and thereafter to Tandur and kept her at the house of Shanta. On 20-1-2001 the accused committed rape against her. However, Venkatesh LW-5 relative of the accused rescued the victim and got her back to her place and restored to her parents. One Shantha, cousin of the accused informed about the presence of the victim in her house. The victim was taken to the police station by her father, after return from Tandur, she was sent to the Gandhi Hospital, Secunderabad and got her examined to know whether she was sexually assaulted or not. The Inspector of Police took up investigation and made some investigation and later the same was handed over to the Sub-Divisional Police Officer, LW-14 who examined the other witnesses in this case. Ultimately on 25-10- 2001 the accused was taken to custody who was alleged to have voluntarily confessed about the offence. After subjecting him to potency test, he was sent to remand for judicial custody. The medical officer, who examined the victim was of the opinion that the sexual assault cannot be ruled out. The age of the victim was also got determined by Dr.Raja Gopal Reddy LW-10. Hence the charge against the accused for the offences under section 366-A, 376 IPC and section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act, 1989. 3. The learned Magistrate took cognizance of the offence and took the charge sheet on file against the accused for the offences under section 366-A 376 IPC and section 3 (2) (v) of SC/ST (POA) Act, 1989. After securing the presence of the accused, the learned Magistrate complied the formalities as contemplated under section 207 Cr.P.C. After verifying the material on record, the learned Magistrate came to the conclusion that this is a case exclusively triable by the Court of Sessions and committed the same to the Court of Session, Ranga Reddy under section 209 (a) Cr.P.C., and notified the fact of committal to the learned Public Prosecutor under section 209 (d) Cr.P.C. 4. The learned Sessions Judge, Ranga Reddy, took the matter on file and made over the same to the Court of Additional Sessions Judge, Ranga Reddy at LB Nagar, Hyderabad, for disposal according to law. 5. The learned Additional Sessions Judge, Ranga Reddy at LB Nagar after hearing both sides, examined the accused and framed charge under sections 366-A and 376 IPC and section 3 (2) (v) of SC/ST (POA) Act, 1989 read over and explained to him in Telugu. The accused pleaded not guilty and claimed to be tried. 6. To substantiate its case, the prosecution examined PWs 1 to 11 got marked Exs.P1 to P-12. On behalf of the accused no oral evidence was adduced but marked Exs.D1 and D2 the admissible portion of statement under section 161 Cr.P.C. of PW-2 7. After closure of the prosecution evidence, the accused was examined under section 313 Cr.P.C. for the incriminating evidence appearing against him. Accused denied the knowledge of the same and submitted that no defence witnesses are to be examined by him. 8. On appreciation of the oral and documentary evidence adduced by the prosecution, the learned trial Judge found the accused guilty under section 366-A of IPC and he was convicted under section 235 (2) Cr.P.C. and sentenced to undergo 3 years Rigorous Imprisonment and to pay a fine of Rs.3000/- in default to suffer six months simple imprisonment for the said offence. Aggrieved by the same, the present criminal appeal is filed by the accused. 9. Heard the learned counsel for the appellant-A2 and the learned Additional Public Prosecutor representing the State. 10. Being it is an offence under section 366-=A of IPC, this court wants to appreciate the evidence of the victim girl. For better appreciation, this court wants to extract the evidence adduced by the prosecution. I am aged 16 years and now studying Intermediate at Nidadavolu. Earlier I used to stay at Chandanagar along with my parents. I went away to my grand father’s house about 2 years back. I used to study X class at that time. I know the accused, who was our neighbour. On 17-10-2001 after returning from school, I went to tution at 5:00 p.m. At about 6 p.m. the accused Ekambaram came to the tution and asked me to come out on the ground that he wanted to talk to me. He took me to his friend’s house at Mahbubnagar by mini taxi. When questioned by court whether she knows the name of friend’s name the witness asserts that she does not know. On that day i.e., on that night, the accused compelled me (Balavantham Pettadu). When questioned by the court as to what is meant by compelling the witness did not give any reply and on the other hand started crying. When it was suggested by the court whether she was sexually enjoyed by the accused, the witness affirmed the same. On thenext day, I was taken to his sister’s house at Tandur. His sister telephoned to Venkateshwar Rao (LW-15). Venkatesham came there on 19th and took her to Chandanagar Police Station. I was taken to Gandhi Hospital and I was examined by lady doctor there. Police examined me. 11. A reading of the entire evidence of PW-2 does not disclose any one of the ingredients mentioned in section 366-A of IPC. The learned Additional Sessions Judge acquitted the accused for the offence under section 376 IPC and whereas convicted him under section 366-A of IPC. Section 366 IPC reads as hereunder: Procuration of Minor girl: Section 366-A IPC Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go 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. 12. In the said section, the main ingredient is that it should be an inducement and the girl be a minor under the age of 18 years and there should be possibility that she is likely to be forced or seduced to illicit intercourse with another person. The said ingredients is totally not attracted on the basis of the evidence adduced by PW-2 the victim girl. 13. In view of the evidence adduced by PW-2, this Court is of the view that there is nothing on record to appraise the evidence of other prosecution witnesses, which will not improve the case of the prosecution. Hence, the conviction and sentence recorded by the learned trial Judge is liable to be set aside and accordingly the same is hereby set aside. 14. In the result, the Criminal Appeal is allowed. ______________________ JUSTICE RAJA ELANGO 15-12-2010 I s L THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 1119 OF 2004 CIRCULATION NO. 29 Date:15-12-2010 Court Master: I s L Computer No. 43