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2002 DIGILAW 1421 (AP)

BILLINTI CHANDRAPPA v. State Of A. P.

2002-12-09

G.YETHIRAJULU

body2002
G. YETHIRAJULU, J. ( 1 ) THIS is an appeal preferred by two accused in Sessions Case No. 159 of 1996 on the file of the Principal Assistant sessions Judge, Chittoor, charged for the offence under Section 366-A of Indian Penal code for procuring the minor daughter of the complainant by inducing her to have illicit intercourse. ( 2 ) THE facts leading to the convictions of the appellants are as follows: p. W. 1 is the father of the victim girl by name K. Manjula. She was induced by a-1 and A-2 to accompany A-1 during the night of 11-10-1995. P. W. 2 the daughter of P. W. I went to a video cinema and did not return to the house. P. W. 1 suspected that A-l and A-2 were responsible for the commission of the offence. Accordingly he lodged Ex. P-1 complaint with the police. The police traced the minor girl along with a-l at Bangalore three days after the date of the complaint and the police entrusted her to P. W. I. On the basis of Ex. P-1 the police registered Crime No. 57 of 1995 of baireddipally Police Station for the offence under Section 366 IPC. Subsequently the police altered the section of law under Section 366 (A) and laid the charge-sheet after completing the investigation. The Sessions court framed charges against both the accused. The accused denied the charge and claimed for trial. ( 3 ) THE prosecution in order to prove the guilt of the accused examined P. Ws. 1 to 8 and marked Exs. P-1 to P-48. The accused were examined under Section 313 cr. P. C. by putting the incriminating material against them and they generally denied the commission of the offence, but they did not chose to examine any witnesses on their behalf. They simply marked Exs. D-1 to D-7 which are portions of 161 Cr. P. C. statements of P. Ws. 1 and 2. ( 4 ) THE learned Sessions Judge after considering the evidence adduced by the prosecution came to a conclusion that the victim was less than 18 years old by the date of commission of the offence and she was induced by both the accused to accompany a-1. P. C. statements of P. Ws. 1 and 2. ( 4 ) THE learned Sessions Judge after considering the evidence adduced by the prosecution came to a conclusion that the victim was less than 18 years old by the date of commission of the offence and she was induced by both the accused to accompany a-1. A-1 had illicit intercourse with the victim girl knowing fully well that the victim was a minor as on the date of commission of the offence and accordingly found both the accused guilty under Section 3 66-A convicted them and sentenced each of them to undergo rigorous imprisonment for 7 years 3 months and to pay a fine of rs. 3,000-00 each and in default to suffer simple imprisonment for 3 months. Both the accused being aggrieved by the convictions and sentences imposed by the learned Sessions Judge preferred this appeal challenging their validity and legality. ( 5 ) THE point for consideration is whether the prosecution proved the guilt of the accused beyond reasonable doubt and whether the findings of the Sessions Judge needs interference. ( 6 ) ACCORDING to the prosecution the victim girl was taken away to Bangalore by a-l on 11-10-1995. It is the version of the prosecution that both the accused induced the minor girl to accompany them to a place in the outskirts of the village and from there to accompany A-l to Bangalore. It was the further plea of the prosecution that after procuring the minor girl, A-l had taken away her to Bangalore. Therefore the Sessions court was right in convicting both the accused for the offence under Section 366 (A ). ( 7 ) THE learned Counsel for the appellants submitted that though the school certificate produced by the prosecution indicates that the victim girl was less than 18 years old as on the date of the commission of the offence, they failed to produce the report of the Doctor as to whom she was sent for examination regarding the determination of the age. Since the age mentioned in the school certificate cannot be treated as the exact date of birth, it shall be treated that the victim girl was more than 18 years old as on the date of the commission of the offence. Since the age mentioned in the school certificate cannot be treated as the exact date of birth, it shall be treated that the victim girl was more than 18 years old as on the date of the commission of the offence. ( 8 ) THOUGH the learned defence Counsel cross-examined the prosecution witnesses at length, the defence could not elicit any information from those witnesses to the effect that the girl was more than 18 years old. On the other hand Ex. P-43 the extract of birth certificate of the victim girl who was examined as P. W. 2 indicates that she was born on 5-6-1979. There is no other material placed by the accused or could elicit any information from the prosecution witnesses to prove whether the date of birth mentioned in ex. P-43 is not correct or whether there was any other material to show that she was born earlier to that date. Ex. P-43 is the extract of the birth certificate. The truthfulness of the said certificate will not be doubted unless there is material contrary to the date mentioned therein. In the light of the above circumstances the learned Sessions judge rightly held that the victim girl i. e. , p. W. 2 was less than 18 years old by the date of the commission of offence. ( 9 ) I have no hesitation to accept the finding of the learned Sessions Judge in this regard and I find no force in the contention of the accused in this regard. ( 10 ) SO far as the role of the A-2 is concerned. He was suspected by P. W. 1 as one of the persons responsible for procuring his daughter along with others. P. W. 2 the victim girl in her evidence stated that on 11-10-1995 when she was returning to her house along with her sister Vanisree after seeing a video picture at about 9. 00 p. m. bypassing through a dark lane, A-1 and A-2 came behind their back and A-2 showed knife towards her, covered a towel on her mouth and both the accused took her on cycle up to a village known as mulabagal and thereafter they took her in a bus to Bangalore. A-1 and A-2 took her to the house of P. W. 3 and kept her in a room. Later A-1 asked her whether she would marry him. A-1 and A-2 took her to the house of P. W. 3 and kept her in a room. Later A-1 asked her whether she would marry him. In the cross-examination except saying that A-2 threatened her to accompany. P. W. 2 did not state anything further about the role of A-2. P. W. 2 did not spell out as to what was the motive of A-2 to induce her to accompany him and what were the words uttered by him. She also did not spell out whether. A-2 acted on his own accord or at the instance of A-1. The contradictions marked in the 161 Cr. P. C. statement of P. W. 2 are to the effect that she did not state before the police that A-2 threatened her with a knife to accompany him and she voluntarily accompanied him. Except the evidence of p. W. 2 which was different from the version given by her before the police as shown in ex. D-3 there is no other material placed by the prosecution regarding the exact role played by A-2 in the commission of the offence. ( 11 ) IN the light of the above circumstances, I am of the view that it is not safe to find A-2 guilty for the offence under Section 366-A. The learned Sessions judge roped up A-2 also along with A-l without making any distinction regarding the role played by A-l and A-2. In the light of the above circumstances, I am inclined to interfere with the judgment of the learned sessions Judge regarding the conviction and sentence against A-2 and I am not inclined to set aside the same. ( 12 ) SO far as the role played by A-1 is concerned, P. W. 2 in her evidence stated that he took her to Bangalore and after reaching there A-l asked her to marry him, but, she refused the proposal of A-1. Two days later the police went to Bangalore and traced her along with A-l and took her to the Police Station, later she was handed over to P. W. 1 and her mother. Ex. P-2 the 164 Cr. P. C. statement of P. W. 2 also shows the detailed role played by A-1 in the commission of the offence. In the cross- examination, P. W. 2 stated that she got acquaintance with A-1 for a period of one year. Ex. P-2 the 164 Cr. P. C. statement of P. W. 2 also shows the detailed role played by A-1 in the commission of the offence. In the cross- examination, P. W. 2 stated that she got acquaintance with A-1 for a period of one year. P. W. 1 suspected that A-1 along with others were responsible for the missing of the girl and further stated that his daughter was traced at Bangalore in the company of a-l and one Golla Buddugadu. Later the police produced the victim girl before the magistrate, Kuppam. He denied the suggestion that A-l did not kidnap P. W. 2 and that she was speaking falsehood on account of the disputes between his family and the family of A-1. P. W. 3 one chengappa Gowd at whose house the minor girl was kept by A-1 turned hostile and did not support the prosecution case, but he mentioned that he is acquainted with P. W. 2, a-1 and A-2. P. W. 2 did not state anything about the demand of A-1 to marry him. P. W. 1 could not say anything about the prior acquaintance with A-1. Whether P. W. 2 fell in love with him or whether there was an earlier attempt to take the girl from his house or whether the girl expressed any inconvenience with A-1 when he was demanding her to marry. P. W. 1 might have given the complaint on account of the missing of the girl without giving any further details about the prior acquaintance of A-1 and P. W. 2. In the cross-examination p. W. 1 stated that A-1 and P. W. 2 used to go on the cycle of A-1 to the college. It is an indication that P. W. 1 had the knowledge that A-1 and P. W. 2 were having prior acquaintance. Had P. W. 1 cautioned P. W. 2 not to closely move with A-1, the position would have been different but he kept quiet by allowing P. W. 2 to go on the cycle of A-1, which is an indication that she is having some intimate acquaintance with A-1 prior to the date of the commission of the offence. Had P. W. 1 cautioned P. W. 2 not to closely move with A-1, the position would have been different but he kept quiet by allowing P. W. 2 to go on the cycle of A-1, which is an indication that she is having some intimate acquaintance with A-1 prior to the date of the commission of the offence. Though P. W. 2 stated that she was threatened by A-1 and A-2 at knife point to accompany him, she did not give further details as to what had transpired during that night, whether she was not willing to go with them, whether she raised any cries, whether anybody offered to rescue her, whether she made any attempt to telephone to her parents or whether she made any request to P. W. 3 to help her to go back to her parents. Except a demand made by A-1 to marry him, he did not make any further advances to wound her feelings. There is no corroboration to the version of P. W. 2 as to what had transpired during the night of occurrence. When she was specific that her sister was with her when A-1 and A-2 surrounded her then what happened to her sister and how she suddenly disappeared and what was the role of her sister and whether the sister complained to her father that A-1 and A-2 took her away. If that is so why P. W. I could not incorporate the version of his daughter in Ex. P-1 complaint and why he gave the names of four persons on suspicion without giving any definite information to the police. The non-furnishing of the above particulars either by P. W. 1 or by P. W. 2 and non-examination of the sister of P. W. 2 are creating an amount of doubt about the version given by the prosecution. ( 13 ) THE learned Counsel for the appellants drew the attention of this Court to the judgment of Suresh Babu v. State of kerala, 2001 Crl. LJ 1483, wherein the Kerala high Court held that when there was an allegation that prosecutrix was taken away by the accused when she was aged about sixteen years and who fell in love with him. When there was evidence to the effect that the victim left the home on her own accord and joined the accused to get the marriage registered. When there was evidence to the effect that the victim left the home on her own accord and joined the accused to get the marriage registered. The learned Single Bench of the Kerala high Court held that the accused did not kidnap her or entice her and accordingly found him not guilty for the offence under section 363 IPC. ( 14 ) IN Varadarajan v. State of Madras, AIR 1965 SC 942 , the Supreme Court while dealing with a similar matter observed that when there was no threat or inducement on the part of the accused and when the girl telephoned to him, met him and voluntarily went along with him to Sub-Registrar s office for registering marriage agreement, the accused did not commit offence under section 363 IPC. ( 15 ) THOUGH the above judgments have no direct bearing on the facts of this case, in view of the non-clarification of the doubts in the mind of the Court, by the prosecution I am of the view that the benefit shall be given to the accused. I am therefore inclined to interfere with the judgment of the Trial court and reverse the same. ( 16 ) IN the result the appeal is allowed by setting aside all convictions and sentences imposed by the learned Sessions Judge for the offence under Section 366-A IPC. The accused shall be set at liberty, the fine amount shall be refunded and the bail bonds shall stand cancelled.