THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1333 of 2005 Date: .09.2011 Between: Adimulam Subhas Chadnra … Petitioner/ PW.2 AND 1. Mule Malyadri 2. Velpula Radha … Respondents/ A.1 & A.2 3. State of A.P. rep.by Public Prosecutor, High Court of A.P., Hyderabad. … Respondents/ Complainant THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1333 of 2005 ORDER: Sessions Case No.161 of 2004 on the file of the Assistant Sessions Judge, Kandukur, was against the two accused for the offences under Sections 366, 376 and 366-A of the Indian Penal Code (IPC). Holding that the prosecution failed to establish the case, the learned Assistant Sessions Judge acquitted both the accused. Aggrieved by the same, PW.2, who is the father of the victim, laid the present revision, assailing the judgment of acquittal recorded by the trial Court. 2. This is a revision against acquittal. The points for consideration are whether the prosecution has brought home the guilt of the accused beyond reasonable doubt and whether the judgment of the trial Court is erroneous and liable to be interfered with. 3. From an overall reading of the evidence, it would appear that the case of the prosecution is that the victim-PW.1 was a minor at the time of her elopement with A.1 and that A.1 and A.2, consequently, are liable for kidnap, abduction and rape. On the other hand, it is the case of the accused that PW.1 was a major by the date she went away with A.1 and that neither A.1 nor A.2 was guilty of kidnap, abduction or rape directly or with the aid of Sec.34 IPC. 4. The case of the prosecution is a) PW.1 is the only daughter of PWs.2 and 3. She was a student of 7th class in the Zilla Parishad High School, Garlapeta, Marripudi Mandal, Prakasam District. She was born on 01.07.1991 (vide Ex.P.3). b) A.1 was 23 years old. He was a married person. He originally belonged to Lingareddipally of Kothapally. The daughter of Adireddy was given in marriage to A.1. Adireddy, father-in-law of A.1, was neighbour of PW.2 and was also a very good friend of PW.2. A.1 went over to the house of his parents-in-law after the marriage at Regimanupalli and started residing in the house of his father-in-law. c) He used to visit the house of PW.2. Thus, he came into contact with PW.1 (victim). A.1 started tempting PW.1 with eatable and minor gifts. As PW.1 was not responding to his charm and cupidity, A.1 took the assistance of A.2. A.2 indicated to PW.1 that A.1 intends to marry PW.1. About 10 days prior to 13.12.2002, A.2 asked PW.1 to leave the village along with A.1 on the succeeding Friday on 13.12.2002. A.2 administered threats to PW.1 that if PW.1 did not go along with A.1, A.2 would propagate in the village that PW.1 had illicit intimacy with A.1. d) PW.1 became frightened. She, therefore, did not inform the conduct of A.1 and A.2, the overtures of A.1 and representations of A.2 to her parents on account of fright and innocence. e) On 13.12.2002, PW.1 started for the school as usual. A.1 intercepted PW.1 on her way to the school and persuaded PW.1 to follow him. PW.1, who was frightened, obeyed the mandate of A.1, though reluctantly. f) A.1 took PW.1 to Chennai. He kept PW.1 in a room at Chennai. He entered into carnal relationship with PW.1 against the willingness of PW.1. PW.1 could not approach anyone, as she was in an unknown locality amongst people of a different language. g) PW.1 became pregnant. A.1 represented to PW.1 that he received information that the parents of PW.1 were willing to perform the marriage of PW.1 with A.1. He asked PW.1 to go over to her native place Regimanupalem via Kanigiri promising that A.2 would pick up PW.1 at Kanigiri bus stand. Believing the representation of A.1, PW.1 went alone to Kanigiri bus stand reaching the same by the night of 10.04.2003. She did not find either A.2 or A.1 at the bus stand. h) Having no alternative, she went to PW.7 and reported her fate to him. PW.7 summoned PWs.2 to 4 and handed over PW.1 to them (PW.4 is the husband of the sister of PW.2 and uncle by curtsey to PW.1). PW.7 advised PWs.1 to 4 to report the matter to the Superintendent of Police, Ongole. i) PWs.1 to 4 approached the Superintendent of Police, Ongole on the next day. They were directed to report the matter to the Kanigiri police. PW.1 went to Kanigiri Police Station at 12.30 p.m. on 17.04.2003 and lodged Ex.P.1 complaint. The complaint was registered as First Information Report (FIR) under Ex.P.10. The investigation was conducted and the accused were arrested. Charge sheet was later laid. j) This is the sum and substance of the prosecution case. 5. PW.1 went away with A.1 on 13.12.2002. She was with A.1 till 10.04.2003 at Chennai. It is her case that she was kept in a room and was repeatedly raped. The carnal acquaintance of A.1 with PW.1 was without her consent. Albeit, PW.1 was at Chennai for about four months, she never raised any hue and cry, never attempted to contact any neighbours to narrate her plight and never tried to escape from the control of A.1. The defence of the prosecution would appear to be that PW.1 was amongst peoples of a different tongue and could not do anything. PW.1 certainly could have escaped and could have signal led to the locals to take her to the police station. PW.1 did not choose to do so. 6. She would appear to have returned to Kanigiri on 10.04.2003. On her way to Kanigiri, she never informed and never complained to anyone about A.1 and A.2. Even after reaching Kanigiri, she did not initially lodge any complaint with police. The complaint was lodged against A.1 and A.2 as late as on 17.04.2003 that too at the instance of PWs.2 and 3. In this background, I consider that Sri Mohd. Saleem, learned counsel for the accused was correct that PW.1 was a consenting party to the alleged kidnap, abduction and rape. There is absolutely no convincing explanation for the conduct of PW.1 in not reporting the matter to her parents at her native place or to anyone at Chennai. There is no satisfactory explanation regarding the delay in lodging the complaint. While the kidnapping was on 13.12.2002 and rape was subsequently thereof, Ex.P.1 was lodged as late as on 17.04.2003. PW.2 claimed that he reported to the police when PW.1 was missing on 13.04.2002. Such a report has not been filed by the prosecution. There was no evidence that the parents of PW.1 reacted when PW.1 left the house (or did not return home after going to the school on 13.12.2002). I, therefore, consider that evidently there is acquaintance between A.1 and PW.1 and that PW.1 went away with A.1 willingly. Where PW.1 never raised any hue and cry at Chennai, I also consider that PW.1 was a willing person for the carnal pleasure between PW.1 and A.1. When PW.1 returned home and when she realized that there was no possibility of A.1 marrying her, on account of pressure from her parents, she would appear to have lodged Ex.P.1 complaint. 7. I am not able to accept the contention of Sri C. Srinivasa Reddy, learned counsel for the revision petitioner/PW.2 that the prosecution established kidnap, abduction and rape beyond reasonable doubt. The claim of the prosecution should fail. The acquittal recorded by the learned trial Judge deserves to be sustained. 8. However, there is a very important circumstance in this case in respect of all the three offences. The incidents occurred on 13.12.2002. The date of birth of the petitioner, according to the prosecution, is 01.07.1991. PW.1 was 11 years old at the time of elopement and subsequent carnal acquaintance. If a minor girl is taken away from the legal custody, her consent is immaterial. Any removal of a minor girl from the custody of the lawful guardian is kidnapping as defined u/s.361 IPC. If a person is induced by deceitful means or compelled by force to leave a place, it would be abduction, as defined u/s.362 IPC. 9. It is not established that PW.1 was either compelled or was induced by deceitful means to go away from her parents. Consequently, none of the offences for abduction have been made out. However, if PW.1 were a minor, taking away PW.1 from the lawful guardianship of PWs.2 and 3 is kidnapping. U/s.366 IPC kidnapping for the purpose of marriage is punishable. Sec.366-A provides punishment if a minor girl is induced to go away from a place so as to be seduced to illicit intercourse. If PW.1 is a minor, albeit PW.1 went away voluntarily with A.1, it would be an offence u/s.366 IPC as well as u/s.366- A IPC as PW.1 went away with A.1 for the purpose of illicit carnal pleasure. 10. Again so far as the offence u/s.376 IPC is concerned, if the victim is a minor, her consent is irrelevant. It is the case of the prosecution that A.1 had carnal acquaintance with PW.1 against the wish of PW.1. At any rate, PW.1 was pregnant by the time A.1 released PW.1 from his clutches. I, therefore, agree with the contention of the learned counsel for the revision petitioner that the carnal acquaintance between PW.1 and A.1 is made out beyond reasonable doubt. If PW.1 is a minor, the offence of rape would be made out. As PW.1 was not the wife of A.1, the consent of PW.1 would be irrelevant in such circumstance. 11. Consequently, the age of PW.1 became paramount in this case. According to the accused, PW.1 was a major. According to the prosecution, PW.1 was a minor and was in her early teens. Regarding the age of PW.1, Exs.P.3 andP.4 are the school records. 12. PW.10 is a Dental Assistant Surgeon. He examined PW.1 and opined that she was between 12 years and 14 years old. However, he did not issue any medical certificate in that regard. 13. PW.12 is the important witness for the accused. He was a Radiologist at Government Headquarters Hospital, Ongole. On 28.04.2003 (and not on 17.04.2003) he examined PW.1 and opined that PW.1 was about 17 years old at the time of the examination. He issued his opinion under Ex.P.7. He took as many as nine X-rays in the process of examination of PW.1 (all of which are Ex.P.6). He admitted that the age parity in the ossification test would have a margin of two years on either side. These are the circumstances around which the rival claims revolve to determine whether PW.1 was a minor by 17.12.2002 and by 10.04.2003. 14. Ex.P.3, as already pointed out, discloses that the date of birth of PW.1 was 01.07.1991. PW.9 was the Head Master of the Zilla Parishad High School, Garlapeta, where PW.1 studied 7th class. He certified that the school record discloses that PW.1 was born on 01.07.1991 vide Ex.P.3 and that the attendance register, copy of which is Ex.P.4, shows that PW.1 was absent from the school from 13.12.2002. PW.17, who was the Inspector of Police, Podili, conducted major portion of the investigation in this case. He seized Exs.P.3 and 4 from the school records. Ex.P.4 indeed is only a corroborative piece of evidence. It merely shows that PW.1 was absent from the school from 13.12.2002. It is nobody’s case that PW.1 continued to go to the school even after 13.12.2002. She did not go to school at least till 17.04.2003 from 13.12.2002. Ex.P.4 does not show the date of birth of PW.1. For the purpose of enquiry whether PW.1 was a minor at the time of the incident or otherwise, Ex.P.4 is irrelevant. Ex.P.3, however, shows that PW.1 was about 11 years old by the date of the incident. PW.9 proved Ex.P.3. However, Ex.P.7 certificate attached to Ex.P.6 shows that PW.1 was between 13 years and 14 years at the time of the examination. 15. PW.11 is the Civil Assistant Surgeon. He opined from Ex.P.6 X-rays that PW.1 was between 12 years and 14 years at the time of the examination. PW.12, on the other hand, is a Radiologist. On the basis of Ex.P.6, he opined that PW.1 was about 17 years old. Where PW.11 is a Civil Assistant Surgeon and PW.12 is a Radiologist, I give more weight to the evidence of PW.12 and hold that Ex.P.6 should be read, as if they show that PW.1 was about 17 years old. Admittedly, there is a margin of two years on either side for the ossification test. If two years are added to 17 years, PW.1 would be a major. This is the basic assumption. However, Ex.P.3 clearly shows that PW.1 was born on 01.07.1991 so much so she was 11 years old when she went away with A.1 (on 13.12.202) and when PW.1 returned to her parents (on 10.04.2003). On the other hand, Exs.P.6 and P.7 read with Ex.P.12 shows that PW.1 could be a major by April, 2003. Which of the evidence is to be accepted would decide the fate of the accused. If Ex.P.3 is accepted, A.1 would be guilty. If Exs.P.6 and P.7 coupled with the evidence of PW.12 is accepted, A.1 and A.2 would not be guilty. 16. The learned counsel for the accused went by the assumption that in view of the evidence of PW.12, PW.1 should be considered to be a major and in any event, where there is a controversy as to the exact age of PW.1, the benefit of doubt should be given to the accused. On the other hand, the learned counsel for the revision petitioner/PW.2 contended that the ossification test and the evidence of PW.12 become redundant in the light of the evidence PW.11 & Ex.P.7 and in the light of Ex.P.3. His submission is that in the light of the school records, no other document can be looked into to determine the age of PW.1. 17. Ex.P.3 was issued by the Zilla Parishad High School, Garlapeta, Marripudi Mandal, Prakasam District. The school, which issued Ex.P.3, is not a private school. Added to it, there is neither proof nor allegation that Ex.P.3 is false or was manipulated by the prosecution for the purpose of the present case. Evidently, the school record of PW.1 shows PW.1’s birth date as 01.07.1991. The date of birth usually is recorded by the schools on the base of the birth extract or on the basis of the representation of the parents and the appearance of the child. In any event, the date of birth, as recorded in the school register, deserves to be accepted. Undoubtedly, in a criminal case, the defence may unsettle the presumption that the date of birth as shown in Ex.P.3 is not the real date of birth of PW.1. The accused have not let in any evidence that Ex.P.3 does not show the correct date of birth. 18. Curiously, it is the prosecution, which subjected PW.1 to ossification test and examined PW.12 even though they had already examined PW.11. It is PW.12 who claimed that PW.1 was about 17 years old. PW.11, however, was of the opinion on the basis of Exs.P.6 and P.7 that PW.1 was between 12 years and 14 years old. The evidence of PW.11 coupled with Ex.P.7 is fortified by Ex.P.3. There is no contrary evidence. The evidence, consequently, pinpoints that PW.1 was below 14 years old by 10.04.2003 and perhaps her date of birth was on 01.07.1991 or at least was in 1991. If PW.1 was born in 1991, she was a minor not only by 13.12.2002 on which date PW.1 went away with A.1, but also on 10.04.2003 on which date, PW.1 returned to PW.7. If PW.1 was a minor, as already pointed out, it is irrelevant whether PW.1 voluntarily went away with A.1 or was induced or duped to go with A.1. A.1 would still be guilty of the offences under Sections 366 and 366-A IPC. Similarly, it would be irrelevant whether PW.1 was a consenting party for the carnal acquaintance of A.1 with PW.1. A.1 would nevertheless be guilty of the offence u/s.376 IPC. 19. This is a revision by PW.2 questioning the acquittal recorded by the trial Court. In view of the embargo u/s.401 (3) Cr.P.C, I cannot reverse the finding of acquittal. The case would be liable to be remitted to the trial Court for fresh consideration. 20. It may be noticed that the prosecution laid the case against two accused. This revision is laid against both the accused. They are respondents 1 and 2 herein. There is absolutely no evidence against A.2. Barring for the self-serving testimony of PW.1, the complicity of A.2 is not made out at all. The trial Court is perfectly justified in concluding that no case is made out against A.2. This revision seeking to set aside the acquittal of A.2 deserves to be dismissed. So far as the acquittal recorded by the trial Court against A.1 is concerned, the case deserves to be remitted for reappraisal of the evidence by the trial Court. 21. Accordingly, the Criminal Revision Case is allowed in part. So far as the second respondent/A.2 is concerned, the revision is dismissed. The acquittal of the second respondent/A.2, as recorded by the trial Court, is confirmed. The acquittal of the first respondent/A.1, as recorded by the trial Court, is set aside. The case against A.1 is remitted to the trial Court for fresh consideration. The trial Court shall rehear the arguments on both sides after due notice to them and dispose of the case on merits, disregarding various observations made by me regarding the merits of the case. The trial Court may remember that the observations and appreciation of evidence by me was only to substantiate reasons for remitting the case to the trial Court and not for determining the merits of the case. 22. The Criminal Revision Case is, accordingly, disposed of. _________________ K.G. SHANKAR, J Date: .09. 2011 Isn