THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.585 OF 2003 DATED 6th DECEMBER, 2010. BETWEEN : Pathakova Venkat Rao @ Isreal .. Appellant-accused and The Public Prosecutor ..Respondent THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL APPEAL No.585 OF 2003 JUDGMENT: This is an appeal arising out of the conviction and sentence imposed by the learned Assistant Sessions Judge, West Godavari Division at Kovvur, in Sessions Case No.254 of 2001 on 19.05.2003 wherein the appellant-accused was convicted under Section 235 (2) of the Code of Criminal Procedure (for short ‘Cr.P.C.’) and sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/- for the offence punishable under Section 376 of Indian Penal Code (for short ‘IPC’) and also to suffer simple imprisonment for six months and to pay a fine of Rs.1,000/- fo the offence punishable under Section 417 IPC. Prosecution case, in brief, is that the accused by his deceitful words got believed the victim that he will marry her and had sexual intercourse with her and continued to have sexual intercourse for four years whenever possible. Likewise, on 10.03.1998 when the parents of the victim are away from the house, accused went to the house of the victim and had sexual intercourse with her and the same was witnessed by the junior paternal uncle of the victim. On 12.03.1998, the parents of the victim returned to village and a panchayat was conducted before the elders, in which, the accused refused to marry the victim. Due to co-habitation with accused, victim got pregnancy. Hence, the complaint. In order to prove its case Prosecution got examined PWs 1 to 9 and marked Exs.P.1 to P.10. When examined under Section 313 Cr.P.C. accused denied the incriminating circumstances read over to him available in the evidence of prosecution witnesses. Though the accused did not adduce any oral evidence on his behalf, he got marked Ex.D.1 in his defence. After evaluating the entire material on record both oral and documentary, the learned trial Judge convicted the accused as stated above. Challenging the same, present appeal has been preferred. Heard. Since this is an offence punishable under Section 376 IPC, the appreciation of evidence of prosecutrix would be suffice to decide the issue in this matter. P.W.1, the prosecutrix, categorically stated regarding her love towards the accused-appellant and also the manner in which they behaved and the offence committed by the appellant. It is seen from the evidence of PW.1 that she had intercourse with the appellant with her consent and nowhere she stated that the said act of the appellant is against her will. Further, it is the case of the prosecutrix that he promised to marry the victim girl i.e. P.W.1 and so she has submitted herself to the appellant for sexual intercourse. Learned counsel for the appellant submits that even as per the case of the prosecution the appellant had sexual intercourse with P.W.1 with her consent only. When the said act is with consent, section 376 IPC would attract only if P.W.1 was a minor at the time of incident. In the present case, the entire perusal of the record and also after hearing the arguments and perusal of the judgment of the trial Court nowhere it is substantiated by the prosecution that the prosecutrix-P.W.1 is a minor and no evidence is produced before the trial Court to establish her age. No medical report has been filed before the Court to substantiate the age of the girl. Admittedly, P.W.1 was studying Intermediate in a college at the time of her examination before the trial Court. This Court is unable to understand as to why the Prosecution failed to file any document to inform the age of the prosecutrix. In the absence of such evidence, it is unsafe to convict the accused that too when PW.1 categorically admits that she had intercourse only with her consent. Hence, the conviction and sentence imposed on the appellant for the offence punishable under Section 376 IPC is liable to be set aside and the same is set aside. As far as offence under Section 417 IPC is concerned, the letters written by the appellant to P.W.1 and the evidence adduced by P.W.1 clearly establish that the accused induced her to subject herself to sexual intercourse with him, due to which she subjected herself to sexual intercourse with the appellant. Subsequently, the appellant refused to marry her and she has also become pregnant and she also delivered a child at her 7th month pregnancy. So, the prosecution clearly proved by way of adducing evidence to the effect that the accused with his false promises made the victim to have sexual intercourse with him. Hence, the conviction imposed by the trial Court for the offence punishable under Section 417 IPC is hereby confirmed. However, taking into consideration the lapse of time and also it is informed that the victim married another person and leading marital life, this Court is inclined to show some lenience against the appellant in imposition of sentence. Hence, while confirming the conviction for the offence punishable under Section 417 IPC, the sentence of imprisonment is reduced from six months to one month rigorous imprisonment. Fine amount imposed by the trial Court for the offence under Section 417 IPC is not interfered with. Fine amount paid by the appellant for the offence punishable under Section 376 IPC as imposed by the trial Court be returned to him. With above modification, the Criminal Appeal is disposed of. ________________________ JUSTICE RAJA ELANGO Dated : 06.12.2010 sur