THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CRIMINAL REVISION CASE No.1353 of 2004 Date: 01.7.2010 Between: Panchamala Ratnala Rani, West Godavari District …………..Petitioner/ defacto-complainant. And 1. The State of A.P rep by the Public Prosecutor, High Court of A.P., Hyderabad and another. ………..Respondents. THE HON'BLE SRI JUSTICE B.SESHASAYANA REDDY CRIMINAL REVISION CASE No.1353 of 2004 JUDGEMENT: This Criminal Revision Case is directed against the judgment dated 27.4.2004 passed in Crl.A.No.91 of 2003 on the file of the Principal Sessions Judge, West Godavari District at Eluru, whereby and whereunder the learned Sessions Judge allowed the appeal setting aside the conviction and sentence of accused-Sadhe Cotton Prasad for the offence under Section 376 IPC passed in S.C.No.102 of 2002 on the file of the Additional Assistant Sessions Judge, West Godavari, Eluru. 2. The prosecution case, in brief, is as under:- P.W.1 is the victim girl. She was studying X class in Aditya Toppers Residential School at Santhinagar, Eluru in the year 2001. Accused-Sade Cotton Prasad used to visit the house of the victim as his father was friend of her father. The accused moved with the victim very closely. About three months prior to 15-10-2001 the accused took the victim girl to a cave constructed in Amalodhavi Cathedral near Bishop house, Xavier Nagar, Eluru, and ravished her. 15 days thereafter, the accused took the victim to the house of P.W.5-Anandababu, situated at Ameenapet, near Collectorate on the pretext of getting her a puppy, and had sexual intercourse with her. Again after three days, the accused took the victim to the house of P.W.5 on the same pretext and P.W.5 was not in the home at that time. His wife, P.W.6-Chinnam Mary Daze, was attending some works outside the house. He took the victim girl inside the house of P.W.5 and ravished her. On the night of 11.10.2001, the accused took her to Relangi Village near Tanuku and ravished her. He introduced the victim girl to his relations at Tanuku as his cousin. The accused again committed rape on the victim girl at his relations house at Tanuku. On the next day morning, he took the victim girl to Tadepalligudem bus stand and absconded. The victim telephoned to her parents, and thereupon, her mother, who has been examined as P.W.2, came to Tadepalligudem and brought her back to Eluru. The victim informed the affair to her parents. The victim gained pregnancy, and when she was carrying three months pregnancy, she revealed the incidents of rape committed on her by the accused to her parents. P.W.2 along with the victim went to Eluru Rural Police Station on 15.10.2001 at about 5.00 P.M. and presented a report, which has been exhibited as Ex.P1. P.W.11- K.T.T.V.Ramanarao, Sub-Inspector of Police, Eluru, received Ex.P1-report and registered a case in Crime No.160 of 2001 under Sections 417 & 376 IPC and issued Ex.P9-First Information Report. He examined P.Ws.1 & 2 and recorded their statements under Section 161 Cr.P.C. He secured P.W.1 and one Murali Krishna and proceeded to the scene of offence situated at Xavier Nagar and prepared Ex.P10 rough sketch of the scene of offence. He sent P.W.1 to Government Hospital, Eluru for medical examination. P.W.7-Dr.P.Sailaja medically examined P.W.1 on 15.10.2001 at 7.30 P.M., and issued Ex.P2- wound certificate. He collected servical and veginal swabs and veginal smears for being sent to RFSL. After receipt of the RFSL, which has been exhibited as Ex.P3, she issued Ex.P4 final opinion. P.W.13-Dr.G.K.V.Prasad, Professor of Forensic Medicine, R.R.Medical College, Kakinada medically examined the victim on 18.10.2001 with regard to the determination of her age. He examined the victim medically and determined her age as 16 years and issued Ex.P.15 age certificate. P.W.12 took up the investigation and sent requisition to the Judicial Magistrate of First Class for Excise, Eluru on 31.10.2001 to record Section 164 Cr.P.C. statements of P.Ws.1 and 6, which came to be recorded by P.W.10 on 31.10.2001. Exs.P6 & P7 are the statements of P.Ws.1 and 6 respectively. P.W.12 arrested the accused on 16.10.2001 and sent him for remand. The accused came to be examined by P.W.14- Dr.Ramamohanarao with regard to his potency. P.W.14-Dr.T.Ramamohanarao examined the accused on 17.10.2001 at 12.00 noon and opined that the accused is not incapable of performing the normal sexual act. Ex.P15 is the wound certificate issued by him. After completion of investigation, P.W.12 laid a charge sheet before II Additional Judicial Magistrate of First Class, Eluru. The learned Magistrate took the charge sheet on file as P.R.C.No.12 of 2002 and made over the same to the Additional Assistant Sessions Judge, Eluru for disposal according to law. On appearance of the accused and on hearing the prosecution, the learned Assistant Additional Sessions Judge framed charges under Sections 417 and 376 IPC, read over and explained the charges to the accused, for which the accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused with which he stood charged, the prosecution examined 14 witnesses and proved 15 documents. The plea of the accused is one of total denial of the case. He marked Ex.D1 letter through P.W.1. The leaned Additional Assistant Sessions Judge, on appreciation of the evidence brought on record and on hearing the prosecution and the accused, found the accused guilty for the offence under Section 376 IPC convicted him accordingly and sentenced him to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs.3,000/-, in default to suffer simple imprisonment for three months. However, the learned Additional Assistant Sessions Judge found the accused not guilty for the offence under Section 417 IPC and acquitted him accordingly. 3. The accused assailed his conviction and sentence for the offence under Section 376 IPC by filing Criminal Appeal No.91 of 2003 on the file of the Principal Sessions Judge, West Godavari District at Eluru. The learned Principal Sessions Judge, on re-appreciation of the evidence brought on record and on hearing the learned counsel appearing for the parties, came to the conclusion that the victim was of a consenting age by the date of alleged offence and thereby, proceeded to allow the appeal by setting aside the conviction and sentence of the accused for the offence under 376 IPC by judgment dated 27.4.2004. Hence this revision by P.W.1, who is the mother of the victim girl. 4. Heard learned counsel appearing for the petitioner- defacto complainant, learned Additional Public Prosecutor appearing for 1st respondent-State and learned counsel appearing for the 2nd respondent-accused. 5. Learned counsel appearing for the petitioner submits that the evidence of the victim girl, who has been examined as P.W.1, is cogent and convincing with regard to the incidents of rape committed on her by the accused and in which case the appellate Court is not justified in interfering with the well reasoned judgment of the trial Court passed in S.C.No.102 of 2002 convicting the accused for the offence under Section 376 IPC. 6. Learned counsel appearing for the 2nd respondent–accused supported the judgment impugned in the revision. 7. Section 375 IPC reads as hereunder: “375. Rape:- A man is said to commit “rape” who, except in the case hereinafter expected, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-- Firstly – Against her will. Secondly – Without her consent. Thirdly – With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly – With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly – With or without her consent, when she is under sixteen years of age. Explanation:-- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception:-- Sexual intercourse by a man, with his own wife, the wife not being under fifteen years of age, is not rape.” 8. P.W.13 is the Doctor, who examined the victim girl with regard to the determination of her age. He categorically stated that the victim girl was aged about 16 years as on the date of the examination i.e., 18.10.2001. Ex.P14 is the certificate issued by him. By reading the evidence of P.W.13, it can easily be inferred that the victim was aged 16 years by the date of the alleged offence, in which case it can be said that she was of consenting age. It is the evidence of P.W.1 that she accompanied the accused from Eluru to Tanuku, and, thereafter, Relangi Village near Tanuku and stayed at the relatives house of the accused and prior to that she used to move with the accused very freely and indeed, she stated in the cross- examination that she and the accused were in love with each other. The evidence of P.W.1 indicates that she voluntarily accompanied the accused to various places. She being of consenting age, it cannot be said that the acts committed by the accused, if any, on her, come within the meaning of rape. It is not the evidence of P.W.1. The accused threatened her, and, thereby, made her to surrender. No threats have been spoken by P.W.1 and the appellate Court considered the evidence brought on record in right perspective more particularly medical evidence as to the age of the victim and proceeded to record a finding that the victim girl was of consenting age as on the date of the alleged offence. I do not see any perversity in the judgment passed by the appellate Court warranting interference by this Court in exercise of the revisional powers under Section 397 read with 401 of Code of Criminal Procedure. 9. Accordingly, the Criminal Revision Case fails and the same is hereby dismissed. ______________________________________ JUSTICE B. SESHASAYANA REDDY Date:01.7.2010 mrb