THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 702 OF 2008 JUDGMENT : The present criminal appeal is filed against the judgment and sentence recorded in S.C.No.351 of 2007 dated 28.11.2007 by the Assistant Sessions Judge, Machilipatnam, Krishna district, whereby the appellant herein was convicted under section 235 (2) of Criminal Procedure Code for the offence under section 376 (2)(f) of Indian Penal Code and sentenced to undergo Rigorous Imprisonment for a period of ten years and also directed to pay a fine of Rs.500/- (Rupees five hundred only) in default, shall suffer simple imprisonment for a period of three months. The appellant herein is resident of Lakshmanaraopuram, Machilipatnam and he is rickshaw puller. On 22.2.2007 at about 11.30 p.m, he took away the victim girl viz., Mutyala Lakshmi aged about nine years from school premises to nearby bushes and committed rape on her body and caught on the scene of offence by PWs 4 and 6 and handed over to police at about 4.00 p.m. Then a case in Crime No.37 of 2007 was registered against him under section 376 (2) (f) of Indian Penal Code. The learned Assistant Sessions Judge, Machilipatnam upon consideration of the entire evidence and material available on record, convicted and sentenced the accused, as stated above. Heard the learned counsel for appellant and learned Public Prosecutor and perused the material available on record. P.W.1/victim girl is aged about 11 years as on the date of occurrence and as per the suggestions made, there is some motive between P.W.3 and the accused who are closely related and due to inducement of P.W.3 the prosecution witnesses deposed against him. P.W.5 viz. Shaik Hussain who is an independent witness who has supported the case of the prosecution and by his evidence the time of the alleged occurrence is established. Whereas the evidence of Doctor/P.W.10 runs as follows; “I have been working as CAS in Head Quarters Hospital, Machilipatnam since 9.1.2007. On 22.2.2007 at 8.15 pm, I have examined PW.1 brought by P.C.1290 of P.S. Chilakakapudi and found the following injuries; 1.No external injuries. 2. Himen intact. The following samples are taken by me from PW.1 for analysis. Vagginal sway (out side the hymen) Vagginal smear. Pubic hair. Finger nails- Left hand ring finger. I took the above samples 1 to 4 to send the same to RFSL for clinical examination. Thereafter, I have received the opinion from FSL and issued my final opinion, as below. I am of the opinion that there are no findings to suggest the possibility of rape and there is no evidence of sexual intercourse. Ex.P 12 is wound certificate dated 7.3.2007. Ex.P 13 is final opinion dt 25.4.2007. Cross examination: I have taken the Vagginal smear outside the hyman. It is not true to suggest that there is no possibility for formation of pubic hair to girl at the age of 10 years. It is not true that there is no formation of pubic hair on the person of P.W.1.” Upon hearing the counsel on either side and on perusal of the material available on record, it is seen that there is some deficiency between the evidence of P.W.1 and that of the Doctor who was examined as P.W.10 and it is also the case of the accused that under the influence of P.W.3 he was falsely implicated in the case. In these circumstances, more particularly considering the evidence of Doctor/P.W.10, it cannot be safely said that the prosecution has established the offence as against the appellant under section 376 of the Indian Penal Code, however, there is no doubt that the prosecution has got ample evidence to establish the case for an offence punishable under Section 354 of Indian Penal Code as against the appellant herein. Therefore, the conviction imposed against the appellant is modified as conviction under Section 354 of the Indian Penal Code and sentence is modified and reduced to five years from that of ten years as imposed by the Sessions Court. The fine imposed by the Sessions Court is set aside. It is needless to mention that the period already undergone by the accused in jail shall be set off under Section 428 of the Criminal Procedure Code. Subject to above modification, the appeal stands disposed of. ______________ RAJA ELANGO,J DATE: 18.1.2011 TVK THE HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL NO. 702 OF 2008 Date: 18.1.2010