SESSIONS CASE NO.21/2009 Page No.1
IN THE COURT OF SESSION : PRAKASAM DISTICT : ONGOLE
(Before the Spl.Judge for trial of offences U/SCs & STs (POA) Act, 1989, Prakasam at Ongole)
Present : Sri B.Siva Nagi Reddy, B.Sc.,LL.M., I Addl.Sessions Judge, Ongole, FAC/Spl.Judge for trial of offences U/SCs & STs (POA) Act, 1989, Prakasam at Ongole. Monday, this the 26th day of March, 2012.
Sessions Case 21/2009
Between :
The State : Sub Divisional Police Officer,
Ongole Sub Division, Ongole... Complainant
And
Avanigadda Nagaraju S/o.Narasimha Rao, aged 30 years, Pallekaru by Caste, ARPC 827, Working at Mounted Police Unit, Goshamahal, Hyderabad R/o.H.No.8-3-169/988, H.F.Nagar, Borabanda, Hyderabad N/o.Ethamukkala (V), Kothapatnam Mandal -- Accused
This case came on 19.3.2012 for hearing before me in the presence of Spl. Public Prosecutor for State/Complainant and Sri I.Mallikharjuna Reddy, Advocate for Accused, upon perusal oral and documentary evidence on record, and the matter having stood over for consideration till this day, this Court pronounced the following ::
J U D G M E N T
1.Sub Divisional Police Officer, Ongole Sub Division, Ongole, filed charge sheet against accused in Cr.No.175/2007 of Ongole Town P.S., for the offences U/Secs.366-
A, 376 IPC and U/Sec.3 (1) (xi) of SCs & STs (POA) Act, 1989 (hereinafter, “the Act) alleging that the accused kidnapped and committed rape against the victim girl, who is of a schedule caste. Name of the victim is not disclosed in view of the guidelines of the
Hon’ble Supreme Court. She will be hereinafter referred as “P.W.2”.
2.As per the case of the prosecution, P.W.2 is Mala by caste, which is a schedule caste and by the date of the offence, she was aged 16 years, studying 9th class in a school at Parvathapur village, Ghatkesar Mandal of Rangareddy District. P.W.1 Narella
Atchamma is the maternal grand mother of P.W.2. Whereas, the accused is Armed
Reserve Police Constable, No.827, working in Mounted Police Unit, Goshamahal,
Hyderabad. He is native of Eethamukkala village of Kothapatnam Mandal of Prakasam
District. He is of Pallekaru caste, which is a BC-A caste. P.W.1 is working as Sweeper in the office of Survey of India, Uppal and was residing at Parvathapur village,
Ghatkesar Mandal of Rangareddy District along with P.W.2. P.W.2 has friendship with
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Sreeram and Paramesh, who are residing in side by side houses. Accused, who is brother-in-law of Paramesh, got acquaintance with the P.W.2 and developed intimacy with her. He developed malicious intention to have sexual intercourse with P.W.2. In pursuance of the same, he lured and induced P.W.2, who is a minor girl, with a false promise that he will marry her and kidnapped her from Parvathapur village on 20.6.2007 and on the same night he took her to Sri Sai Lodge, situated at Dharavaari
Thota in Ongole, which belongs to P.W.4 Velidi Venkata Mutyalarao and his son P.W.5
Velidi Vishnuprasad and took room No.9 by furnishing his address particulars in the reception register. On 21.6.2007 the accused induced P.W.2 and obtained her consent by promising that he will marry her and had sexual intercourse several times from 10.00 p.m. of 20.6.2007 to 10.00 p.m. of 22.6.2007. Thereafter, the accused vacated room No.9, took P.W.2 to Hyderabad by bus and left her at L.B.Nagar in the morning of 23.6.2007and went away. P.W.2 returned to home and narrated the incident to P.W.1.
P.W.1 informed the same to her caste elders and made enquiries to ascertain the name and address particulars of the accused. P.W.1 informed the incident to P.W.3 Amadala
Devasahayam, an employee in Survey of India. Thereafter, on 27.6.2007 at 7.00 p.m.
P.Ws.1 to 3 went to Uppal police station whereat P.W.1 presented Ex.P1 report to
P.W.13 B.Ravindra Reddy, the then SI of Police, Uppal P.S., who in turn registered a case in Cr.No.652/2007 U/Sec.376 IPC and U/Sec.3 (xi) of the Act of Uppal P.S., and submitted Ex.P1 original FIR to the Court and copies of the same to all concerned officers. Ex.P20 is the copy of the said FIR. P.W.13 examined and recorded the statements of P.Ws.1 and 2 and sent P.W.2 to the Superintendent, Gandhi Hospital,
Secunderabad, for medical examination under cover of Ex.P21 letter. He also sent
P.W.2 to the Professor, Forensic Science Laboratory, Gandhi Medical College,
Secunderabad for age determination under Ex.P22 letter. Thereafter, as the offence took place at Ongole, P.W.13 sent the CD file and the statements recorded by him to the Superintendent of Police, Ongole, for further investigation. P.W.14 Shaik Mahaboob
Basha, the then Assistant Sub Inspector of Police, Ongole I Town P.S., received the
CD File and re-registered the same as a case in Cr.No.175/2007 U/Sec.376 IPC and
U/Sec.3 (1)(xi) of the Act and submitted Ex.P23 original FIR to the Court and copies of
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the same to all concerned officers. The Superintendent of Police, Ongole, under
Ex.P24 authorization memo, authorized P.W.15 to investigate the case. Then P.W.15 took up investigation examined and recorded the statements of P.Ws.1 to 3. Lead by
P.W.2, P.W.15 along with mediators P.W.10 Tanguturi Venkata Seshu Venu, VRO of
Ongole, P.W.7 Billa Chennaiah visited the scene of offence, which is room No.9 in Sri
Sai Lodge situated at Dharavari Thota, Ongole. There P.W.15 examined and recorded the statement of P.Ws.4 and 5. He observed room No.9, which is the scene of offence, and prepared Ex.P16 scene observation report and Ex.P25 rough sketch of the scene of offence. In that lodge, he seized maintenance register Ex.P4 under cover of Ex.P16 panchanama. On 14.9.2007 P.W.15 reexamined P.W.3. Thereafter, he secured the presence of P.W.6 Swarna Yesu and M.Kondareddy, examined and recorded their statements. On 11.12.2007 at 12.40 hours, P.W.15 arrested the accused at his residence at Reddypalem in Eethamukkala and sent him to Government General
Hospital for Potency test under Ex.P26 memo. P.W.8 K.K.Ratnakumari, the then
Tahasildar, Kothapatnam Mandal, issued Ex.P8 caste certificate of the accused stating that accused belongs to Pallekaru caste, which is BC-A, which is recognized as a backward caste. P.W.11 R.V.Seshaiah, the then Deputy Tahasildar, Komarole Mandal, issued Ex.P17 caste certificate stating that P.W.2 is a resident of Thathiredypalle of
Komarole Mandal and she is mala by caste, which is a schedule caste. P.W.9
G.Anandi, the then III Additional Judicial I Class Magistrate received Ex.P9 requisition from SHO, Ongole I Town P.S., to conduct Test Identification Parade against the accused. The I Additional District Judge under Ex.P10 proceedings, authorized her to conduct Test Identification proceedings in pursuance of which she issued summons to
P.Ws.2 and 5 to appear before her on 2.1.2008. On appearance of P.Ws.2 and 5, she recorded their statements and then conducted test identification in the District Jail under cover of Ex.P15 test identification proceedings, whereat P.W.2 identified the accused, whereas P.W.5 failed to identify the accused. P.W.12 Dr.B.Rajeswari,
Assistant Professor of Obstetrics and Gynecology, Gandhi Hospital, examined P.W.2 physically and sent vaginal smears and swabs of P.W.2 to Forensic Science
Laboratory (FSL), which in turn examined them and sent Ex.P18 report, basing on
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which P.W.12 gave final opinion under Ex.P19 stating that there is no evidence of recent sexual intercourse against P.W.2. L.W.13 Dr.B.Lakshmi Narayana M.D.,
Assistant Professor, Department of Forensic Medicine, Medical College, Guntur, examined the accused and issued Ex.P27 report stating that accused is capable of performing sexual intercourse. L.W.9 Dr.M.Taqiuddin, Associate Professor, Department of Forensic Medicine, Gandhi Hospital, Secunderabad, examined P.W.2 and issued
Ex.P28 certificate stating that P.W.2 is aged 17 years. After completion of investigation
L.W.18 A.Pradeep Reddy, the then Sub Divisional Police Officer, Sub Division, Ongole, filed charge sheet before the II Additional Judicial I Class Magistrate, Ongole.
3.The II Additional Judicial I Class Magistrate, Ongole, has taken on file the case
U/Secs.366-A, 376 IPC and U/Sec.3 (1)(xi) of SCs & STs (POA), Act, 1989 in PRC 18/2008.
4.After appearance of the accused before the Court, the Magistrate furnished copies of charge sheet and documents to the accused as provided U/Sec.207 Cr.P.C., and committed the case to this Court by order, dated 29.4.2009. This Court has taken on file this case as S.C.21/2009.
5.After appearance of the accused before this Court, charges U/Secs.366-A, 376
IPC and U/Sec.3 (1)(xi) of SCs & STs (POA) Act, 1989 were framed, read over and explained to the accused in Telugu. Accused pleaded not guilty and claimed to be tried.
6.To prove its case, prosecution examined P.Ws.1 to 15 and marked Exs.P1 to P4,
P4-A, P5 to P28. Prosecution failed to produce L.W.9 Dr.M.Taquiddin Khan, Associate
Professor, Department of Forensic Medicine, Gandhi Hospital, Secunderabad, L.W.13
Dr.B. Lakshminarayana M.D., Assistant Professor, Department of Forensic Medicine,
Medical College, Guntur and L.W.18 A.Pradeep Reddy, Sub Divisional Police Officer,
Sub Division, Ongole even after sufficient time is granted and conditional order, dated 8.2.2012. Hence, prosecution evidence was closed on 22.2.2012.
7.After closure of the prosecution evidence, accused was examined U/Sec.313
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Cr.P.C., by explaining the incriminating evidence against him. Accused denied the evidence and reported no defence evidence.
8.Arguments of learned Spl. Public Prosecutor and counsel of accused are heard.
9.The prosecution is alleging that the accused induced P.W.2, who is a minor girl of scheduled caste, with a false promise that he will marry her and took her from the lawful custody of P.W.1 of Parvathapur village to room No.9 of Sri Sai Lodge situated in
Dharavaari Thota in Ongole and had sexual intercourse with her several times and thereafter took her to Hyderabad and left there. Whereas, the accused is denying the case of the prosecution.
10.In view of the rival contentions of both parties the points that arise for determination are :
“1.Whether the prosecution proved that accused with a false promise kidnapped P.W.2 and committed rape against her ? and 2.Whether the prosecution proved its case beyond reasonable doubt ?”
11. Point No.1 :
As per the case of prosecution, P.W.2 is Mala by caste, which is a scheduled caste. For this, the prosecution is relying on the evidence of P.W.11 R.V.Seshaiah, the then Deputy Tahasildar, Komarole Mandal, who in his evidence deposed that on 6.7.2007 P.W.2 gave a requisition to him for issuing caste certificate. VRO of Komarole and Mandal Revenue Inspector of Komarole enquired and submitted a report to him.
Basing on the said report he issued Ex.P17 caste certificate stating that P.W.2 is a resident of Thatireddipalli of Komarole Mandal and is Mala by caste, which is a scheduled caste. In his cross examination it is suggested to him that without enquiry and due to political pressure, he issued Ex.P17 certificate.
12.As per the case of the prosecution, P.W.1 is a native of Thathireddypalle village of Komarole Mandal. Her marriage was performed with one Yesaiah. The said Yesaiah was working as a Kalasi in the office of Survey of India at Uppal. He constructed a tin
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sheet house at Parvathapur. P.W.1 was having one daughter. After death of her husband, P.W.1 performed the marriage of her daughter with her own brother and they are blessed with P.W.2. About 5 years prior to the date of offence, the daughter of
P.W.1, Mariyamma, died. From then P.W.2 remained with P.W.1. Her father married another woman and is residing at Giddalur and he was not taking care of P.W.2. By the date of offence P.W.2 was studying 9th class and she was having a cell phone. On 20.6.2007, P.W.2 did not return from the school. Then, on 21.6.2007 P.W.1 telephoned to P.W.2 for which P.W.2 answered that she was going to Ongole along with her friend and she will return on the next day. On 23.6.2007 at 7.00 a.m. P.W.2 returned and informed to P.W.1 about this incident.
13.P.W.1 in her evidence deposed that on 20.6.2007, P.W.2 went along with this accused. Two or three days thereafter, P.W.2 returned to her house and told that accused took her and left her in L.B.Nagar of Hyderabad. She further deposed that all those details are known to her (P.W.2) only and she does not know where the accused is working. She executed a document giving her house, retirement benefits to P.W.2 and she does not know why the accused took P.W.2 along with him. She gave Ex.P1 report to police. As she did not state the contents of Ex.P1 report and her Sec.161
Cr.P.C., statement, the prosecution treated her as hostile and cross examined her wherein she admitted that she stated that she gave Ex.P1 report and that in her
Sec.161 Cr.P.C., statement she stated that as per the information given by P.W.2 that on 20.6.2007 as the accused telephoned to P.W.2 to come to Koti, P.W.2 went there to see the accused and from there the accused took her to Srinivasa Lodge in Ongole, took room No.9 and committed rape on her for two days by saying that he will marry her. To grab the property gifted by her (P.W.1) to P.W.2, accused deceived her and took her to Ongole and committed rape against her. So, the evidence of P.W.1 is hearsay evidence from P.W.2.
14.P.W.2 in her evidence deposed that she got acquaintance with the accused through his friends Sriram and Parameswhwar who are working as Mastris (Masons).
Accused is the brother-in-law of Parameshwar and both of them (herself and accused)
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saw a cinema “Operation Duryodhana” and that accused used to telephone to her frequently to her cell phone telling her that his native place is near to Ongole and that he will take her to his village to show her to his parents, as she is like his sister. On 20.6.2007 accused brought her to Ongole in Train. At Ongole, accused took her to room No.6 in Sri Sai Lodge and committed rape against her. On the 3rd day, he took her to L.B.Nagar and left her there. From there she went to the house of P.W.1 in an auto and informed the incident to P.W.1. P.W.1 took her to the Hospital whereat she was examined by the Doctor. Thereafter she recovered health. Thereafter, P.W.1 performed her marriage with the son of the sister of P.W.1. Police took her to the lodge wherein she has shown the room whereat accused committed rape against her.
P.Ws.1 and 2 were examined by prosecution on 23.11.2010. On that date as the counsel of accused was absent, it was treated that accused has no cross examination against P.Ws.1 and 2. Thereafter, P.Ws.1 and 2 were recalled on 15.3.2011 as per order in Crl.M.P.4/2011, dated 19.1.2011 and cross examined by defence counsel whereat P.W.1 deposed that as police instructed her, she deposed like that as in her chief examination and in the cross-examination. She further stated that as P.W.2 was not appearing for three days, she went to police where they wrote a report and obtained her thumb impression. She never stated to police that accused or any other person took away P.W.2 by deceitful words. After her return, P.W.2 stated that she went to the house of one of her relatives and that P.W.2 did not inform her anything against the accused. P.W.2 in her cross examination by the accused counsel deposed that accused never brought her to Ongole and kept her in the lodge and never committed rape against her. As P.W.1 accosted her, she went to her relatives house and that three days after that she returned. What all she stated in her chief examination is false and she stated like that as per the directions of the police. Nothing as stated by her in her chief examination took place. As the police have shown the photograph of the accused to her, she identified him in jail before the Magistrate and that police never examined her.
15.P.W.3, Amadala Devasahayam, who worked as re-tucher in building section of
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office of Survey of India and retired in May, 2003, in his evidence deposed that P.W.1 told him that P.W.2 went away to unknown place and four days thereafter she returned. She was not in a position to talk. They all went and saw P.W.2. They (elders) went along with P.W.1 and gave report to police. Police took P.W.2 to hospital. He did not enquire P.W.2 about what happened to her. Police brought him,P.Ws.1 and 2 to
Ongole, where P.W.2 has shown a lodge to the police. He does not know the name of the said lodge. P.W.2 told them that they were in the lodge. She did not state that who was the other person with her. He was treated as hostile and was cross examined by the Special Public Prosecutor wherein he denied the suggestion that he stated to the
Sub Divisional Police officer as in Ex.P2, in his Sec.161 Cr.P.C., statement, that after
P.W.2 telling him they (elders) telephoned to the telephone of the accused, but the accused gave a reckless answer and challenged them to file a case against him and that at Ongole, P.W.2 has shown Sri Sai Lodge to them and stated that accused committed rape against her in that lodge. He denied to the suggestion that to help the accused he is deposing falsehood. On 23.11.2010 when P.W.3 was examined by prosecution the counsel of the accused was absent. So, it was treated that counsel of the accused has no cross examination against P.W.3. Thereafter, he was recalled on 15.3.2011 as per orders in Crl.M.P.4/2011, dated 19.1.2011 and was cross examined by the counsel of accused wherein he stated that he does not know this accused and that P.W.2 never stated about the facts of this case. He never accompanied P.Ws.1 and 2 to Ongole and P.W.2 has not shown any lodge to him and that what all he stated in his chief and cross examinations by the prosecution, is at the instance of the police. Thus, P.Ws.1 to 3 stated one thing in chief examination or cross examination by the Special Public Prosecutor and contradicted them in their cross examination by the counsel of the accused.
16.P.Ws.4 and 5 are the father and son and owners of Sri Sai Lodge, Dharavari
Thota in Ongole. P.W.4 in his evidence deposed that on 21.6.2007 they gave room
No.9 to a family, whose names he does not remember and that SDPO seized the lodge register. He was treated as hostile by the Spl.Public Prosecutor. In the cross
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examination by the prosecution. P.W.4 denied to the suggestion that he stated to the
SDPO as in Ex.P3, in his Sec.161 Cr.P.C., statement that he went to room No.9 and talked with Nagaraju (accused) who told that he came to Ongole for college purpose and now he is studying at Hyderabad and that he (P.W.4) can identify them if they are shown to him and that Ex.P4 is the said lodge register and Ex.P4-A is the relevant entry, dated 21.6.2007 regarding room No.9. On that date one Nagaraju with cell number 9948318852 and address 8-3-69/988 H.F.Nagar, Hyderabad, A.P., took that room. As per the entry Ex.P4-A, Accused paid room rent of Rs.150+150. Witness adds that the said person might have taken the room for two days and the room is a double room. P.W.5 in his evidence deposed that Ex.P4 is the lodge register and Ex.P4-A is the relevant entry, dated 20.6.2007 at 10.00 p.m regarding room No.9 and that one
Nagaraju came to the lodge with another. But, he can not say whether the other is a girl or boy and that he (P.W.5) entered his (Accused) address and cell number in Ex.P4-A and that he (accused) told P.W.5 that he came for B.Ed examination and that he (P.W.5) gave room No.9 to them and that two days thereafter, they vacated the lodge.
He added that he can not identify the said Nagaraju and another. He was treated as hostile by the prosecution. In the cross examination he denied to the suggestion that he stated to police as in Ex.P5, in his Sec.161 Cr.P.C., statement that those persons stated their names as Nagaraju and (name of P.W.2) and that he can identify them.
17.Prosecution examined P.W.6 Swarna Yesu, who was said to have been approached by the accused for compromise and confessed this offence. But P.W.6 did not support the case of the prosecution. So, he was cross examined by the Special
Public Prosecutor wherein he denied to the suggestion that he stated to the Sub
Divisional Police Officer, Ongole, as in Ex.P6, in his Sec.161 Cr.P.C., statement.
18.P.W.7 Billa Chennaiah and P.W.10 Tanguturi Venkata Seshu Venu are the mediators when the Sub Divisional Police Officer visited the scene of offence and seized Ex.P4 lodge register along with Ex.P4-A , relevant entry regarding room No.9.
Out of them, P.W.7 did not support the case of the prosecution. As per him he does not know the contents of the observation report. His signature in observation report is
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marked as Ex.P7. He was treated as hostile by the Special Public Prosecutor and was cross examined by him, wherein P.W.7 denied the case of the prosecution. Whereas,
P.W.10 supported the case of the prosecution and stated that the Sub Divisional Police
Officer observed the scene of offence in the presence of P.W.2, himself and P.W.7 and prepared Ex.P16 observation report.
19.P.W.12, Dr.B.Rajeswari, Assistant Professor, Obstetrics and Gynecology, Gandhi
Hospital, Hyderabad, in her evidence deposed that she examined P.W.2 at 7.00 p.m on 28.6.2007 and found external genitalia of P.W.2 is normal except intruitous admitting two fingers. She sent vaginal smears (two) to FSL which in turn examined them and sent Ex.P18 report stating that there are no traces of semen and spermatozoa. Basing on her physical examination and Ex.P18 FSL report, P.W.12 opined that there is no evidence of recent sexual intercourse against P.W.2 and she issued Ex.P19 final opinion.
20.The other witnesses are P.W.13, B.Ravindra Reddy, the then Sub Inspector of
Police, Uppal, who received Ex.P1 report and registered FIR in Cr.No.652/2007 of
Uppal P.S., P.W.14 Sk.Mahaboob Basha, the then Assistant Sub Inspector of Ongole I
Town P.S., who received the C.D. File from P.W.13 on point of jurisdiction and re- registered the case as a case in Cr.No.175/2007 under Ex.P23. P.W.15 is the investigating officer of this case.
21.Thus, the entire case depends upon the evidence of P.W.2, who is the only witness to speak about this offence. As per the case of the prosecution, by the date of offence, P.W.2 was aged 16 years. But, as per the medical evidence i.e., Ex.P28 age certificate issued by L.W.9 Dr.M.Taqiuddin, Associate Professor, Department of
Forensic Medicine, Gandhi Hospital, Secunderabad, P.W.2 was aged 17 years. As per the prosecution, the accused by stating that he will marry P.W.2, took her to Sri Sai lodge in Ongole and committed rape against her. As per P.W.2, she was having friendship with the accused, saw a cinema “Operation Duryodhana” with him and on 20.6.2007 accused by stating that she is like his sister and that he will show her to his
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parents, took her to Sri Sai lodge in Ongole, took room No.6 and committed rape against her. Learned Special Public Prosecutor submitted that through the evidence of
P.W.2, prosecution proved that by deceitful words accused took her to room No.9 of
Sri Sai Lodge at Ongole and committed rape against her. He also submitted that the prosecution also proved that P.W.2 is of a scheduled caste. He also submitted that
P.Ws.1 to 3 in their chief examination supported the case of the prosecution to some extent but later on when they were recalled, as they were gained over by the accused, supported the case of the accused. In these circumstances, the chief examinations of P.Ws.1 to 3 alone have to be taken into consideration and their evidence in their cross examination by counsel of accused need not be considered. He submitted that thus, the prosecution proved its case beyond reasonable doubt and prayed for convicting the accused for the offences for which he was charged.
22.Whereas, learned counsel of the accused submitted that as per the medical evidence P.W.2 was aged 17 years by the date of the incident. She was studying 9th class. But, the prosecution did not produce the school record of P.W.2. He submitted that in the school record, correct date of birth of P.W.2 will be available. Thus the prosecution suppressed the school record of P.W.2 intentionally. He further submitted that, as per the medical evidence, by the date of incident, P.W.2 was aged 17 years but not 16 years as alleged by the prosecution.
23.Learned counsel of the accused submitted that as per the medical evidence, the age of the victim is 17 years. The age so determined is subject to 2 years on either side.
So, we can take that the P.W.2 was aged 19 years. In support of this contention he cited a decision reported in 2007 (1) ALD (Crl.,) 665 (AP) in between A.Venkatachary Vs.
State of A.P., . In that case as per the case of the prosecution, the victim girl is aged 16 years and she was being in love with the a the accused, established by evidence of prosecution witnesses and love affair between two culminated in their leaving their respective houses for Yadagirigutta where they got married, roamed for about 18 or 19 days before girl appeared before police with her parents. In that case as per the medical
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evidence the victim girl was aged 16 years. In para No.6 their lordships held as :
“P.W.2 who is a tutor in Forensic Medicine in Osmania Medical College, examined P.W.3 (victim girl) for determination of her age. On physical, general and radiological examination of P.W.3, he came to the opinion that the girl was aged 16 years as on the date of her examination i.e., on 15.2.2000. Though he noted two simple injuries, which are scratches on P.W.3, as per the own statement of the latter it was selfinflicted injury. Therefore, the simple injuries are of no consequence. He states that the age determined by him is subject to variation of plus or minus two years.”
In Para No.7 their lordships held as “The Apex Court in Deelip Singh alias Dilip Kumar Vs. State of Bihar, 2005 (1) ALD (Crl.,)65 (SC) = (2005) 1 SCC 88 held that in a case where the medical officer gave the age of the girl as 16 to 17 years the defence was entitled to rely on the higher side of the age and as such the girl would be more than 16 years when the alleged offence had taken place. If we add two years to the age of P.W.3 as on the date of commission of the offence, it must be held that the girl was aged more than 16 years as on the date of the commission of the offence.”
In para No.13 their lordships held as “I held that the girl was above 16 years as on the date of the commission of the offence. The Supreme Court, in Jinish Lal Sah Vs. State of Bihar, 2003 (1) ALD (Crl.,) 374 (SC)=(2003)1 SCC 605, held that to establish the charge under section 366 there should be acceptable evidence to show that the girl was compelled to marry the appellantaccused against her will or was forced to or induced to intercourse against her will. Therefore, the prosecution is required to prove that there was some such undue force on the girl either to marry the accused or to have intercourse with him. In the case before their Lordships, the girl had planned for departure from the house in advance and had willingly gone away with the appellant. Their Lordships had drawn inference that the said conduct indicates that there was no threat or inducement either in regard to her leaving the house or in regard to accompanying the appellant and therefore, charge under Section 366 IPC was not made out. In the case on hand also the girl had planned her departure from the house. As per the testimony of P.W.1, she avoided attending the dinner in the neighbour's house. She stayed in the house only with the avowed intention of leaving the house with the accused in the absence of other inmates. Thus, it is clear that no case is made out under section 366 IPC. Their lordships in the above said decision had an occasion to discuss, on the facts of the case before their Lordships, whether the offence under Section 366 IPC was also made out. Their Lordships held that the prosecutrix herself had planned her departure from her house in advance and had willingly gone away with the accusedappellant. In such a situation in the absence of any other material to show the contrary, it will be difficult to accept the prosecution case. The accusedappellant can not be held to have raped the prosecutrix. Before the Doctor the girl stated that she had intercourse with the accused willingly. Even other wise, her willingness can be inferred from her conduct. Since she is aged about 16 years, the sixth description under section 375 IPC which says that the intercourse with the consent of a girl aged less than 16 years is also a rape would not come into play. Thus, the offence under Section 376 is also not made out. There was no cohabitation with deceitful intention of a lawful marriage in this case. The girl was aged more than 16 years. She knows that a marriage has to be performed by her elders. In spite of that she left the house without informing her parents or anybody in the house and went all the way to Yadagirigutta where from the couple left elsewhere and had led sexual life. If the alleged marriage took place at Yadagirigutta is a fake marriage both P.W.1 and the accused are equally to be found guilty. Accused alone cannot be convicted, therefore, I hold that Section 493 is also
SESSIONS CASE NO.21/2009 Page No.13
not made out.”
24.Learned counsel for accused further contended that as per P.W.2, she was having friendship with the accused and on the call of accused, she came all the way from Hyderabad to Ongole in a train and both of them took a room of Sri Sai Lodge. As per the prosecution case, the said room number is 9 in Sri Sai Lodge. But, P.W.2 is stating that the room number is 6. P.W.2 in her chief examination did not state that the accused with deceitful words that he will marry her, had sexual intercourse. But, she deposed that accused committed rape against her. P.W.12 Dr.B.Rajeswari, in her
Ex.P19 final opinion did not find any injuries over genitalia, breasts, cheek, lips and thighs of P.W.2 and as per P.W.12, intruitous admitted two fingers. So, we can conclude that P.W.2 was accustomed to sex. He submitted that as per the above,
P.W.2 was aged 17 years by the date of offence and she willingly came to Ongole with the accused and had sex. So, the alleged offence will not fall U/Secs.366 or 366-A, and 376 IPC and so also Sec.3 (1)(xi) of the Act as P.W.2 is a consenting party.
25.Learned counsel for the accused submitted that as per the case of the prosecution, the offence took place on 21.6.2007 and 22.6.2007. P.W.2 went to the house of P.W.1 on 23.6.2007. Ex.P1 report was given on 27.6.2007. Thus, there is delay of 4 days in lodging the FIR. The said delay was not explained by the prosecution. In these circumstances, the version that the accused committed rape against her can not be believed. For this he cited a decision reported in 2001 (2) ALD (Crl.,) 681 (AP) in between Keerthi Suryanarayana @ Suribabu V. State of A.P., In that case the offence of rape alleged to have been committed is a place opposite to police station. There were no external injuries found on the victim. No resistance was given by her. Her age was 28 years. The victim did not care to approach police and report the offence immediately. In those circumstances, their lordships in Para No.11 held as :
“Really had the accused committed any rape right in front of the police station, they would have straight away gone to the police station and given a complaint. As per the evidence of P.Ws.1 and 2, instead of going to the police station, they went straight away to the hospital; and again from the hospital, they went to the police station and gave the complaint. This evidence of P.Ws.1 and 2 looks very unnatural and disbelievable. I, therefore, do not see any ground to sustain the Judgment of the Trial Court. Accordingly, the Judgment under appeal is set aside. The accused is
SESSIONS CASE NO.21/2009 Page No.14
acquitted of the charges framed against him under Sections 376 and 417 IPC.”
2)2003 Supreme Court Cases (Cri) 751 in between Rajeevan and Another
Vs. State of Kerala. In that case there was delay of 12 hours in lodging the FIR and was dispatched to the Magistrate with delay. Their lordships held that “On facts genuineness FIR is doubtful.”
26.As per the above material it is clear that by the date of offence, as per the medical evidence, P.W.2 was aged 17 years. Even though P.W.2 was studying 9th class by the date of the incident, prosecution did not produce her school records. Thus they intentionally suppressed the best evidence to prove the age of P.W.2. As per the medical evidence, P.W.2 was aged 17 years. We have to add plus or minus two years to that age in view of the decision reported in 2007 (1) ALD (Crl.,) 665 cited supra.
Then the victim may be aged 15 to 19 years and we take the age which is on higher side and so she was not a minor by the date of the incident. As per P.W.2, she had friendship with the accused and both of them saw a film by name “Operation
Duryodhana”. As per P.W.2, she came down to Ongole when accused stated that she was like his sister and he has to show her to his parents and he brought her to room
No.9 of Sai Lodge at Ongole and committed rape against her. But that is not the case of the prosecution. As per the case of the prosecution, accused with a false promise that he will marry her, brought P.W.2 to Sri Sai Lodge in Ongole and there committed rape against P.W.2. But P.W.2 in her evidence did not state that accused promised her that he will marry her and then had sexual intercourse with her. As per the medical evidence, there are no external injuries on the person of P.W.2 and P.W.2 is accustomed to sexual life. In these circumstances, in view of the decision in 2007 (1)
ALD (Crl.,) 1666 cited supra we can conclude that P.W.2 is a consenting party for the sexual intercourse by the accused. Thus, the prosecution failed to prove that accused kidnapped and committed rape against P.W.2 and thus the prosecution failed to prove the offences U/Secs.366-A and 376 of IPC. When the prosecution failed to prove the offences U/Secs.366-A and 376 IPC, we can conclude that prosecution also failed to prove the offence U/Sex.3 (1)(xi) of SCs & STs (POA) Act, 1989 under which the prosecution has to prove that the accused assaulted or used force against P.W.2, who
SESSIONS CASE NO.21/2009 Page No.15
is of a scheduled caste, with an intention to dishonour or outrage her modesty. P.W.2 is also not alleging that as she is of scheduled caste the accused refused to marry her after having sex with her. Thus, the prosecution failed to prove the offences under which the accused was charged.
27. Point No.2 :
In the 1st point itself, it is held that prosecution failed to prove its case and so there is no question of proving its case beyond reasonable doubt.
As the prosecution failed to prove its case beyond reasonable doubt, accused is found not guilty for the offences U/Secs.366-A and 376 of IPC and U/Sec.3(1)(ix) of
SCs & STs (POA) Act, 1989 and is entitled fro acquittal.
28.In the result, accused is found not guilty and acquitted for the offences
U/Secs.366-A and 376 IPC and U/Sec.3 (1)(xi) of SCs & STs (POA) Act, 1989,
U/Sec.235 (1) Cr.P.C., Bail bonds of the accused shall stand cancelled. Bindover the accused to appear before the appellate Court.
Dictated to shorthand writer, transcribed by him, corrected and
pronounced by me in the open Court, this the 26 th day of March, 2012.
I Addl. Sessions Judge, FAC/Spl.Judge for trial of offences U/SCs & STs (POA) Act, 1989, Prakasam at Ongole.
Appendix of Evidence
Witnesses Examined
For Prosecution :
P.W.1: Nerella Atchamma P.W.2: (Name not disclosed) P.W.3: Amadala Devasahayam P.W.4: Velidi Venkata Mutyala Rao P.W.5: Velidi Vishnu Prakash P.W.6: Swarna Yesu P.W.7 : Billa Chennaiah P.W.8 : Smt.K.K.Ratna Kumari, Rtd. Tahasildar P.W.9 : Smt.G.Anandi, VII AJFCM,Rajahmundry P.W.10: Tanguturi Venkata Seshu Venu, RI, Darsi P.W.11:R.V.Seshaiah, Dy.Tahasildar, Chinnaganam P.W.12:Dr.B.Rajeswari, Assistant Professor P.W.13: B.Ravindra Reddy, CI of Police. P.W.14:Sk.Mahaboob Basha, Rtd., SI
SESSIONS CASE NO.21/2009 Page No.16
P.W.15: M.Konda Reddy, Rtd. DSP
For Defence : -None-
Documents Marked
For Prosecution :
Ex.P1 / 27.06.2007 Report of P.W.1 given to SHO, Uppal P.S., Ex.P2 / 04.08.2007 161 (3) Cr.P.C., statement of P.W.3 recorded by SDPO,Ongole Ex.P3 / 04.08.2007 161 (3) Cr.P.C., statement of P.W.4 recorded by SDPO,Ongole Ex.P4 /- Rooms allotment register of Sri Sai Lodge, Ongole Ex.P4-A 20.6.2007 Room No.9 allotting to accused in Ex.P4 at page No.125 Ex.P5 / 04.08.2007 161 (3) Cr.P.C., statement of P.W.5 recorded by SDPO,Ongole Ex.P6 / 14.09.2007 161 (3) Cr.P.C., statement of P.W.6 recorded by SDPO,Ongole Ex.P7 / 04.08.2007 Signature of P.W.7 in observation report Ex.P8 / 11.01.2008 Caste certificate of accused issued by Tahasildar, Kothapatnam Mandal Ex.P9 / 20.12.2007 Requisition of SI of Police, Ongole I Town P.S. to conduct of Test Identification parade Ex.P10/18.12.2007 Xerox copy of proceedings of I ADJ nominating III AJCJ to conduct TI parade Ex.P11/ 02.01.2008 Statement of P.W.2 recorded by III AJCJ, Ongole Ex.P12/ 02.01.2008 Statement of P.W.5 recorded by III AJCJ, Ongole. Ex.P13/ 02.01.2008 List of non-suspect in identification parade in Cr.No.175/2007 of Ongole I Town P.S., Ex.P14/ 02.01.2008 Statement of accused with regard to conduct of identification parade in Cr.No.175/2007 of Ongole I Town P.S., Ex.P15/ 02.01.2008 Identification parade of the suspect accused in Cr.No.175/2007 of Ongole I Town P.S., Ex.P16/ 04.08.2007 Signature of P.W.10 in Observation Report Ex.P17/ 06.07.2007 Caste certificate of P.W.2 issued by Tahasildar,Komarole Mandal Ex.P18/ 30.10.2007 Copy of FSL report/opinion Ex.P19/ 25.03.2008 Final medical opinion on P.W.2 issued by Asst.Professor, Obstetrics & Gyneacology Ex.P20/ 27.06.2007 Copy of FIR in Cr.No.652/2007 of Cyberabad P.S., Uppal Ex.P21/ 28.06.2007 Xerox copy of letter from SHO, Uppal P.S., to the Superintendent, Gandhi Hospital, Secunderabad Ex.P22/ 29.06.2007 Xerox copy of letter from SHO, Uppal P.S., to the Professor, Forensic Medicine, Gandhi Medical College, Secunderabad Ex.P23/ 15.07.2007 Copy of FIR in Cr.No.175/2007 of Ongole I Town P.S., Ex.P24/ 03.01.2008 Authorization memo in C.No.225/Authrn/D8/SC&ST/DCRB/2007 Ex.P25/- Rough Sketch of the scene of offence by P.W.15 Ex.P26/ 11.12.2007 Memo from SDPO, Ongole, in Cr.No.175/2007 of Ongole I Town PS Ex.P27/ 19.12.2007 Certificate of opinion of potency issued by Assistant Professor, Gunter Medical College, Guntur Ex.P28/ 29.06.2007 Age certificate of P.W.2 issued by Associate Professor, Department of Forensic Medicine, Gandhi Medical College, Secunderabad
For Defence : -Nil-
M.Os. Marked
-Nil-
I Addl. Sessions Judge, FAC/Spl.Judge for trial of offences U/SCs & STs (POA) Act, 1989, Prakasam at Ongole.
SESSIONS CASE NO.21/2009 Page No.17
Calender and Judgment
IN THE COURT OF SESSION : PRAKASAM DISTICT : ONGOLE
(Before the Spl.Judge for trial of offences U/SCs & STs (POA) Act, 1989, Prakasam at Ongole)
Present : Sri B.Siva Nagi Reddy, B.Sc.,LL.M., I Addl.Sessions Judge, Ongole, FAC/Spl.Judge for trial of offences U/SCs & STs (POA) Act, 1989, Prakasam at Ongole. Monday, this the 26th day of March, 2012.
Sessions Case 21/2009
Between :
The State : Sub Divisional Police Officer,
Ongole Sub Division, Ongole... Complainant
And
Avanigadda Nagaraju S/o.Narasimha Rao, aged 30 years, Pallekaru by Caste, ARPC 827, Working at Mounted Police Unit, Goshamahal, Hyderabad R/o.H.No.8-3-169/988, H.F.Nagar, Borabanda, Hyderabad N/o.Ethamukkala (V), Kothapatnam Mandal -- Accused 1.Date of occurrence:Between 20.6.07 and 23.6.07 2.Date of Complaint:27.06.2007 3.Date of apprehension of accused:11.12.2007 4.Date of commencement of trial:23.11.2010 5.Date of close of trial:22.02.2012 6.Date of sentence or order:26.03.2012
In the result, accused is found not guilty and acquitted for the offences U/Secs.366-A and 376 IPC and U/Sec.3 (1)(xi) of SCs & STs (POA) Act, 1989, U/Sec.235 (1) Cr.P.C., Bail bonds of the accused shall stand cancelled. Bindover the accused to appear before the appellate Court.
Explanation for the delay :
The charge sheet was taken on file by the II Addl. Judl. Magistrate of I Class, Ongole, in P.R.C.18/2008 for the offences U/Secs.366-A, 376 IPC and U/Sec.3(1)(xi) of Scs & Sts (POA) Act, 1989, who committed the case to this Court by order, dated 29.4.2009 and the same was numbered as S.C.21/2009. On summons, accused appeared in this Court on 17.7.2009 and as the Presiding Officer was on C.L., on that day this case was posted to 30.7.2009 and from then 31.8.2009. On 31.8.2009 accused engaged his counsel to defend his case and this case was posted to 8.10.2009 for hearing on charges and from then to 13.11.2009,27.11.2009,11.12.2009. and 8.1.2010 due to one reason or other. Finally charges were framed on 22.1.2010 and the case was posted to 26.4.2010 and from then to 21.6.2010 and 26.8.2010 for fixation of trial schedule. Finally on 30.9.2010 trial schedule was issued. On 23.11.2010 P.Ws.1 to 5 were examined and Exs.P1 to P4, P4-A and P5 were marked. At this stage this case underwent some adjournments due to non production of prosecution witnesses. On 27.1.2011 P.Ws.6 to 8 were examined and Exs.P6 to P8 were marked. On 15.3.2011 P.Ws.1 to 3 were cross-examined. On 26.4.2011 P.Ws.9 to 11 were examined and Exs.P9 to P17 were marked. On 13.5.2011 P.W.12 was examined and Exs.P18 and P19 were marked. At this stage this case underwent several adjournments due to either non production of prosecution witnesses or non appearance of accused. On 16.12.2011 P.W.13 was examined and Exs.P20 to P22 were marked. On 24.1.2012 P.W.14 was examined and Ex.P23 was marked. On 8.2.2012 P.W.15 was examined and Exs.P24 to P28 were marked. On 22.2.2012 as the prosecution failed to produce L.W.13 (medical officer) and L.W.18 (investigating officer), evidence on behalf of prosecution was closed. On 27.2.2012 accused was examined U/Sec.313 Cr.P.C., On 19.3.2012 arguments heard. On 26.3.2012 Judgment
SESSIONS CASE NO.21/2009 Page No.18
was pronounced. Hence, the delay.
I Addl. Sessions Judge, FAC/Spl.Judge for trial of offences U/SCs & STs (POA) Act, 1989, Prakasam at Ongole.
Copy submitted to : The Hon’ble Registrar (Judl.,) Hon’ble High Court of A.P., Hyderabad. Copy to :
1) The Collector & District Magistrate, Ongole.
2) The Superintendent of Police, Ongole
3) The Spl. Public Prosecutor, Ongole
4) The II Additional Judicial I Class Magistrate, Ongole