IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD SATURDAY THE THIRD DAY OF DECEMBER TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.107 of 2007 Between: Purnana Paparao ..... PETITIONER/APPELLANT/ACCUSED And The State of A.P. rep.by Public Prosecutor, High Court of A.P. Hyderabad .....RESPONDENT The Court made the following: THE HON'BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.107 of 2007 ORDER: The Petitioner, Purnana Paparao, hereinafter referred to as the accused, stands convicted by the learned Assistant Sessions Judge, Bobbili, in Sessions Case No.137/2004 vide judgment dated 28.03.2006 for the offence under Section 376 of IPC and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.1,000/ -. In default of payment of fine, he has been sentenced to undergo simple imprisonment for further period of three months. On appeal by the accused in Crl.A.No.43/2006, the learned II Addl.Sessions Judge (Fast Track Court), Parvatipuram, vide judgment dated 18.12.2006 while maintaining the conviction of the accused as recorded by the learned Assistant Sessions Judge, reduced the sentence to rigorous imprisonment for two years. The sentence of fine imposed and in default of payment of fine was, however, maintained. Aggrieved by the same, the accused has come up before this Court by virtue of the present revision petition under Sections 397 and 401 of Cr.P.C., assailing the conviction and sentence imposed upon him by the two Courts below. The facts, in brief, are that the accused as well as the victim girl are the residents of Gurla village of Mentada Mandal; that the accused used to tease the victim girl by saying that he fell in love with her; that on 07.03.2004 at about 1 p.m. while the victim girl was in thrashing floor, the accused had intercourse with her against her will; that on seeing the witnesses Palli Ramulappalaswamy and Palli Satyam, the accused escaped from that place; that the victim girl informed the incident to her parents, who held a mediation before the elders; that as the matter was not settled, the victim girl and her father lodged a complaint before the Sub-Inspector of Police, Andra, basing on which the police registered a case in Cr.No.10/2004 against the accused, and after completion of investigation, the concerned police laid charge sheet. The case of the prosecution is that the prosecutrix-PW 1 was borne on 20.06.1989 and thus, she was aged about 14 years by the date of incident; that she was studying 9th class at Mentada High School; that on the fateful day i.e. on 07.03.2004 at about 1 p.m. the accused had sexual intercourse with her in the thrashing floor, however, with her consent; that a year prior to the incident, PW1 had attained puberty; that PWs 3 and 4 happened to be eyewitnesses, having witnessed both of them in a compromising position; that when the matter was informed to her parents, her father PW 2 has informed the same to the village elders and a Panchayat was raised in that regard, however, as the accused failed to appear before the said Panchayat on more than one occasion, the village elders advised the father of PW 1 to approach the police; thus, the father of PW 1 preferred Ex.P1 complaint; that basing on which, a case in Cr.No.10/2004 was registered by Andra Police and the accused was arrested on 12.03.2004 and was sent for judicial custody; that subsequently, after completion of investigation, the police laid charge sheet against the accused for the offence under Sec.376 of IPC; that basing on which, the Judicial Magistrate of First Class, Gajapathinagaram taken the case on file in PRC.11/2004 and committed the same to the Court of Sessions, Vizianagaram District; that the District & Sessions Judge had taken the case on file in SC.No.137/2004 and made over the same to the Assistant Sessions Judge, Bobbili for trial and disposal. On appearance of the accused, the accused was examined u/sec.239 Cr.P.C. and charge under Sec.376 of IPC has been framed, read over and explained him in Telugu, for which, he pleaded not guilty and claimed to be tried. To bring home the guilt of the accused, the prosecution examined PWs 1 to 14 and got marked Exs.P1 to P13 and M.O.1 on its behalf. No oral or documentary evidence was adduced on behalf of the accused. On appreciation of the oral and documentary evidence placed on record and taking into consideration of the evidence of prosecution witnesses and also considering the material on record, the trial court found the accused guilty of the offence under Section 376 of IPC and accordingly convicted and sentenced him therefor, as stated supra. Against the said judgment of the trial Court, the revision petitioner/accused has preferred Crl.A.43/2006 before the learned II Additional Sessions Judge (Fast Track Court), Parvatipuram. The lower appellate Court on re-appreciation of oral and documentary evidence available on record, and after hearing both sides, confirmed the conviction of the accused, as awarded by the trial Court, however, reduced the sentence from five years to two years rigorous imprisonment, while maintaining the sentence of fine. Aggrieved by the impugned judgment of the lower appellate court, the accused preferred this criminal revision case, inter alia, contending that the trial Court failed to appreciate the evidence and other material available on record in proper perspective and thereby misguided itself in coming to a wrong conclusion in finding that the revision petitioner/accused is guilty for the offence under Sec.376 of IPC; that both Courts failed to see that there was sufficient motive for the prosecution party to foist the case against the accused; that both Courts also failed to see that there was abnormal delay in lodging the report; and that placing reliance on the evidence of interested witnesses, the trial Court awarded conviction against the accused. Heard both sides. The revision petitioner/accused has already raised self-same contentions before the lower appellate Court stating that PW 1 hailed from a different village and that Ex.P2 birth certificate could not be the sole proof to determine the age of the victim; that no ossification test was conducted on PW 1 in order to find out the correct age of PW 1; that she was not a minor by the date of incident; that the sexual intercourse was done with her consent; and that there was delay in sending the FIR to the Court. The lower appellate Court taking into consideration the evidence of PW 7 the Head Master of the School and Ex.P2 date of birth certificate issued by him putting the date of birth of PW 1 as 20.06.1989 and also taking into consideration the evidence of PWs 3 and 4 who were the eyewitnesses to the incident and who were alleged to have found PW 1 and the accused in a compromising position in a thrashing floor on the fateful day and at the relevant time, brushed aside the above contentions raised by the revision petitioner/accused, and gave a finding that the prosecutrix-PW 1 was aged 14 years by the date of incident and thus, she was a minor as per the evidence of PW 7, coupled with Ex.P2 birth certificate and as such, her consent cannot be taken as consent in law and thus, upheld the conviction and sentence awarded by the trial Court against the accused. However, taking into consideration the facts and circumstances of the case, the lower appellate Court has taken a lenient view, and modified and reduced the sentence from five years to two years rigorous imprisonment while maintaining conviction and the sentence of fine. Since the maximum period of sentence of imprisonment under Sec.376 of IPC is ten years, the sentence of imprisonment as reduced by the lower appellate Court is less than 1/4th of such term. Therefore, further reduction of sentence, as prayed for by the revision petitioner/accused cannot be considered, in view of serious nature of the offence. This Court does not find any illegality or infirmity in the findings of both Courts below. There are no merits in the revision petition and the same is liable to be dismissed. In the result, the Criminal Revision Case is dismissed. The revision petitioner, who is on bail, is directed to surrender before the trial Court forthwith to serve out the remaining sentence. On failure of the revision petitioner to surrender as directed, the trial Court shall proceed against him, in accordance with law. ____________________ B.N.RAO NALLA,J Dated:03.11.2011 Dsr