HONOURABLE SRI JUSTICE D.S.R.VARMA AND HONOURABLE SRI JUSTICE RAJA. ELANGO CRIMINAL APPEAL No. 1764 OF 2006. DATED 20T H APRIL, 2010. BETWEEN Gantala Kurmaiah … Appellant/Accused And State of AP,rep. By Public Prosecutor High Court of AP, Hyderabad. … Respondent. HONOURABLE SRI JUSTICE D.S.R.VARMA AND HONOURABLE SRI JUSTICE RAJA. ELANGO CRIMINAL APPEAL No. 1764 OF 2006. JUDGMENT: (Per HON’BLE SRI JUSTICE RAJA. ELANGO) 1. The learned Special Sessions Judge-cum- VII Additional District & Sessions Judge, Mahabubnagar, by judgment dated 22-12-2006 in S.C.No. 57 of 2005 found the appellant/accused guilty of the oﬀence punishable under Section 376 IPC and accordingly convicted and sentenced him to undergo life imprisonment and also ordered to pay ﬁne of Rs.500/-, in default to suﬀer simple imprisonment for one month. 2. Assailing the correctness of the conviction and sentence imposed by the learned VII Additional District & District Judge, Mahabubnagar, the appellant/accused preferred the present Criminal Appeal. 3. The substance of the charge against the appellant/accused is that on 19.10.2003 in the limits of Maddigatha Village, the accused committed rape on one Kum. Thotapalli Chennamma, who belongs to Scheduled Caste community. 4, The case projected by the prosecution and narrated by the trial Court, in brief, is as follows: 5. On 19.10.2003 at 1400 hours, the complainant Kum. Thotapalli Chennamma, a member of Scheduled Caste lodged a report before the police stating that she used to attend the coolie work and also grazing goats. She further deposed that the accused Guntela Kurmaiah developed friendship with her while she was attending the grazing goats in the ﬁelds of one Pilli Balappa and at about 1300 hours the accused came to her and caught hold her hand, forced her for sexual intercourse and took her to the cattle shed of Pilli Balappa, laid her on the ground and committed rape on her. Again he took her into the same cattle shed and cohabited with her promising to marry her. Subsequently, he again raped her and threatened not to disclose about the incident to any body including her parents. She further stated that the accused committed rape for twice and after ten days when she was at the ﬁelds, the accused again went to her, pressed her breast and committed rape on her, due to which her menses were stopped for the last six months and that she became pregnant and that when she asked the accused, he denied his responsibility. Upon the said complaint, the police, Annasagar registered a case in Crime No. 139 of 2003 under Sections 376, 420 IPC and under Section 3(2)(v) of SCs and STs (POA) Act 1989. The SDPO took up further investigation, examined witnesses, and referred the victim for medical examination. The Accused was arrested and his medical examination was got done. The medical oﬃcer opined that there is nothing to suggest that the accused is not capable of performing sexual act. The medical oﬃcer who examined the victim opined that there are no signs of recent sexual intercourse. Since the accused denied parentage, the blood samples of newly born child, accused and that of the complainant were sent for DNA test. The result of the DNA test is that the accused is not the biological father of the newly born child. After obtaining the caste certiﬁcates of the victim and the accused, charge sheet was filed. 6. The charge sheet was read over to the accused. He pleaded not guilty and claimed to be tried. 7. In order to prove the guilt of the accused, the prosecution examined PWs.1 to 10 and got marked Exs.P1 to P.13. On behalf of the Defence, no oral evidence was adduced, however, Ex.D.1, relevant portion of 161 Cr.P.C. statement of PW.3-parent of the prosecutrix/complainant was marked. 8. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating material appearing against him in the evidence of the prosecution witnesses. He denied the same. 9. The learned trial judge, after conducting a full-ﬂedged trial, found the appellant/accused guilty of the oﬀence punishable under Section 376 IPC and accordingly convicted and sentenced him to suﬀer life imprisonment, as stated supra. 10. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused of the oﬀence punishable under Section 376 IPC and whether the judgment of the trial Court is correct, legal, proper and based on the evidence adduced by the parties. 11. Heard the learned Senior Counsel for the appellant and the Public Prosecutor appearing for the State, at length. 12. The evidence adduced by the prosecution witnesses and the case portrait by the prosecution in the trial Court is as follows: 13. P.W.2 is the father and P.W.3 is the mother of P.W.1-the alleged victim girl. P.W.1 is Madiga by caste, whereas the accused is Telaga by caste. The material witnesses and the accused were living in Maddigatla village. On 19.1.2003 at about 3.00 p.m. while P.W.1 was grazing the goats in the ﬁleds, the accused came there with goats and took her to cattle place of Chinna Yellappa and had sexual intercourse with her even though she resisted him. Again three days later, the accused had sexual intercourse with her behind Masjid and threatened her with dire consequences if she disclosed the same to her parents. Due to the same, P.W.1 got pregnancy and the same was observed by P.W.3, who took P.W.1 to a private doctor at Ghanapur for abortion. The doctor refused to attend for abortion on the ground that P.W.1 is carrying 8 th month pregnancy. Then P.W.2 sent P.W.1 with two of her caste people to the house of the accused by stating that the accused was responsible for the pregnancy of her daughter. The accused denied the sexual intercourse with P.W.1. On such refusal, P.W.1 gave a complaint Ex.P.1 to A.S.I. of Police, who registered the same being crime in Cr.No. 139 of 2003 under Section 376 and 420 IPC. On 19.10.2003, P.W.10 –SDPO took up investigation, recorded the statements of P.Ws.1 to 6 and prepared the scene of observation report, Ex.P.11. P.W.10 sent P.W.1 to Government Hospital, Mahaboobnagar for age determination. Dr.V.Lakshmi examined and issued her age determination certiﬁcate, Ex.P.12, according to which, the age of P.W.1 is about 15-16 years. On 19.10.2003, P.W.9 Assistant professor, Department of Gynaecology, Gandhi Medical College examined P.W.1 and collected vaginal smears and sent to FSL and after receipt of FSL report Ex.P.8, she furnished ﬁnal opinion. In Ex.P.9 it was opined that there is no evidence of recent sexual intercourse. On 6.11.2003, P.W.10 arrested the accused and sent him to Government Hospital, Mahabobnagar for potency test. On the same day, P.W.8, CAS District T.B. Centre examined the accused and issued potency certiﬁcate Ex.P.5. Ex.P.6 is the caste certiﬁcate of P.W.1. Meanwhile, P.W.1 gave birth to a female child on 19.1.2004. The investigation revealed that on 29.2.2004 P.W.1 accused and new born child of P.W.1 were sent to FSL, Hyderabad for DNA test. The same was conducted vide report No. DNA/69/04, dated 3.6.2004. The DNA report stated that the accused is not the biological father of newly born child of P.W.1. After completion of the investigation, and after collecting the required documents, P.W.10 ﬁled the charge sheet. 14. Perused the entire record. 15. It is the case of the prosecution that the victim girl is a minor, but as rightly pointed out by the learned Counsel for the appellant/accused, there is no document ﬁled to prove the age of the girl/prosecutrix that she is a minor. In fact, the Doctor’s evidence, after medical examination discloses that her age was between 14-16 years. In such a situation, the age cannot be determined exactly. The same can be 14 years to 18 years. Further it is the case of the prosecutrix that she had intercourse with the appellant/accused twice. She also deposed in the Court that she had not resisted the intercourse with the appellant/accused and also she had not informed the same to her parents. 16. It is also the case of the prosecutrix that the same was informed to the police only when she became pregnant and the accused/appellant denied the allegation that he had intercourse with PW.1, and thereafter only the police registered the complaint. In such a situation, the consent of the prosecutrix for sexual intercourse with the accused/appellant was wilfull and she had intercourse with the appellant/accused. Hence the same cannot be termed as ‘rape’. 17. Further, in this case there is inordinate delay in lodging the complaint. The Apex Court in the similar circumstances in the case of Vijayan Vs. State of Kerala {(2009) 3 SCC (crl) 585} observed as follows: “ The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realisation dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to marry therefore the FIR was not ﬁled. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for ﬁling the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for ﬁling the FIR, it will be very hazardous to convict on such sole oral testimony….” 18. The aforesaid decision covered the four corners of the case on hand. 19. But interestingly in this case, it is the case of prosecutrix that she had intercourse only with the appellant/accused and she had never sexual relationship with any other person, except the appellant/accused herein. 20. The prosecutrix also gave birth to a female child. By that time, the appellant/accused herein and the appellant were subjected to DNA test to ascertain the fact as to whether the appellant/accused had intercourse with the prosecutrix. 21. The prosecution had also taken steps to prove that the child was born to the prosecutrix through the appellant herein and therefore subjected the appellant and the child for DNA test. Even though the DNA report was not marked by the prosecution in the Court, but it is clearly evident from the DNA report ﬁled by the respondent herein that the appellant/accused is not the father of the said child of the prosecutrix and not born through him. In such a situation, whether the evidence of prosecutrix that she had intercourse with the appellant/ accused against her will is to be believed or not. 22. Further, in this case, not only there is delay of seven months in lodging the complaint, but also the DNA test conducted by the prosecution on the accused/appellant as well as the prosecutrix and her child proved that the appellant/accused is not the father of the child of the prosecutrix, since the said report is in negative. Hence, in such a situation, the solitary evidence of prosecution witnesses adduced on behalf of the prosecutrix cannot be the basis for convicting the accused for the grave of the oﬀence punishable under Section 376 IPC. Had the prosecutrix lodged the complaint soon after the incident, there would have been some supporting evidence either medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. The prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for lodging the complaint. In that view of the matter, it is not safe to convict the accused/appellant on such sole oral testimony. In such view of the matter, the conviction and sentence imposed by the trial court is liable to the set aside and accordingly the same is set aside. 23. For the foregoing discussion, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellant/accused for the oﬀence punishable under Section 376 IPC by the learned Special Sessions Judge-cum-VII Additional district & Sessions Judge, Mahaboobnagar in the judgment dated 22.12.2006 in S.C.No. 57 of 2005 is set aside and the appellant/accused shall be set at liberty forthwith, if not required in any other case. The ﬁne amount, if any paid by the appellant/accused, shall be refunded to him. ----------------------------------- JUSTICE D.S.R. VARMA ------------------------------------- JUSTICE RAJA.ELANGO DATED 20T H APRIL, 2010. MSNR.