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2019 DIGILAW 263 (AP)

Seelam Venkata Reddy v. State of A. P.

2019-10-01

CHEEKATI MANAVENDRANATH ROY, M.SATYANARAYANA MURTHY

body2019
JUDGMENT : 1. Assailing the judgment dated 27-02-2015 passed in S.C. No. 28 of 2014 on the file of the Special Judge for Protection of Children from Sexual Offences cum Additional Metropolitan Sessions Judge, Vijayawada, whereby the appellant, who is the sole accused in the said case, was convicted for the offences punishable under Section 376(2) read with Section 376(2)(n) of IPC and was sentenced to undergo rigorous imprisonment for life for the remainder of his natural life and to pay a fine of Rs. 40,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months, the appellant has preferred the present appeal. 2. Facts of the prosecution case, as unfolded from the testimony of the prosecution witnesses examined in the case, may briefly be stated as follows: (a) P.W. 2, who is the victim in this case, is a minor girl aged about 15 years at the time of the offence. Her parents are eking out their livelihood by selling waste papers and doing drainage works respectively. She has been living in their house along with her parents and her brother. Her brother is also living by selling waste papers. Her parents and her brother leave the house every day at 06.00 a.m. to attend to their work and P.W. 2 will be alone in the house till they arrive in the evening to the house. (b) While so, about seven months prior to lodging the report with the Police on 29-01-2014, the accused, who is their neighbour, noticed that P.W. 2 is alone in the house and he came to the house of P.W. 2 at about 07.30 a.m. and he woke up P.W. 2 who was sleeping at that time and took her to his house on the pretext that he got work with her. After taking her to his house he closed the doors of his house and he has shown a knife to P.W. 2 and requested her to satisfy his desire and threatened her that he would kill her if she does not satisfy his lust. He had sexual intercourse with her and committed rape on her by threatening her to kill with a knife. Due to fear P.W. 2 did not disclose about the incident to anyone including her parents. He had sexual intercourse with her and committed rape on her by threatening her to kill with a knife. Due to fear P.W. 2 did not disclose about the incident to anyone including her parents. Thereafter, the accused several times used to visit the house of P.W. 2 and call her to his house and used to threaten her to kill if she does not follow him. So, she used to follow him to his house. The accused committed rape on her several times during the last seven months prior to lodging the report with the Police by threatening her to kill. (c) On account of the frequent sexual intercourse the accused had with P.W. 2 by force by threatening her to kill, she became pregnant. On one day when she had vomitings, her mother noticed the same and when she questioned, P.W. 2 disclosed that the accused used to commit rape on her by threatening her to kill. Thereafter, the parents of P.W. 2 took her to the police station and the statement of P.W. 2 was recorded by the Police. The same was registered as a case in Crime No. 72/2014 under Section 376(2)(i)(n) IPC and Section 6 of the Protection of Children from Sexual Offices Act, 2012 (POCSO Act). (d) During the course of investigation, P.W. 2 was sent for medical examination to determine her age and P.W. 9, the doctor who examined her, issued Ex. P-4 Age Determination Certificate and she opined that P.W. 2 is aged about 15 years. She was also sent by the Police for medical examination. P.W. 11, who is the Associate Professor in the Department of Gynecology, Siddhartha Medical College, Vijayawada, examined her and issued Ex. P-6 Certificate and she opined that P.W. 2 is a pregnant of 29 to 30 weeks. (e) During the course of investigation, the Investigating Officer arrested the accused and he was also sent for medical examination to determine his potency. P.W. 10, who is the doctor, examined him and issued Ex. P-5 Certificate stating that there is nothing to suggest that he is incapable of doing sexual intercourse. The Investigating Officer also seized M.O.I. knife in the presence of the mediators used by the accused to threaten P.W. 2. P.W. 10, who is the doctor, examined him and issued Ex. P-5 Certificate stating that there is nothing to suggest that he is incapable of doing sexual intercourse. The Investigating Officer also seized M.O.I. knife in the presence of the mediators used by the accused to threaten P.W. 2. (f) After completion of investigation, the Investigating Officer filed charge-sheet against the accused for the offences punishable under Section 376(2)(i)(n) IPC and Section 6 of the POCSO Act, 2012. (g) On appearance of the accused, a charge under Section 376(2)(i)(n) of IPC and alternatively under Section 6 of the POCSO Act, 2012 was framed against the accused. The accused denied the charges and claimed to be tried. (h) During the course of trial, the prosecution got examined P.Ws. 1 to 14 witnesses and got marked Exs. P-1 to P-9 documents and M.O. 1. to substantiate its case. (i) After closure of the evidence of the prosecution, the accused was examined under Section 313 Cr.P.C. to enable him to explain the incriminating evidence adduced against him by the prosecution. The accused denied the incriminating evidence adduced against him by the prosecution. (j) Eventually, after considering the evidence on record and after hearing the learned Public Prosecutor for the prosecution and the Defence counsel, the learned Judge of Special Court found the accused guilty for the offences punishable under Section 376(2) read with Section 376(2)(i)(n) of IPC and accordingly convicted him for the said offences and sentenced him to undergo imprisonment and to pay fine as detailed supra. (k) Aggrieved by the impugned judgment of conviction, the appellant has preferred the present appeal questioning the legality and validity of the impugned judgment of conviction. 3. We have heard Sri A. Ravindra Babu, learned counsel for the appellant/accused and the learned Public Prosecutor appearing for the respondent/State. 4. The learned counsel for the appellant vehemently contended that the story of the prosecution that the accused has threatened P.W. 2 with a knife to kill her and thereby committed rape oh her continuously for about seven months is absolutely not believable and it is purely a concocted story. 4. The learned counsel for the appellant vehemently contended that the story of the prosecution that the accused has threatened P.W. 2 with a knife to kill her and thereby committed rape oh her continuously for about seven months is absolutely not believable and it is purely a concocted story. He contends that even if there is any such sexual intercourse between the appellant and P.W. 2 for about seven months prior to lodging the report with the Police until she became pregnant, the facts of the case clearly show that it is a consensual sexual intercourse as she had voluntarily on her free will and volition had sexual intercourse with the accused for the said seven months period. So it is not a case of forcible sexual intercourse had on P.W. 2 by the accused or a case of rape since the sexual intercourse is with the consent of P.W. 2. 5. He would then contend that the prosecution also miserably failed to prove with legal evidence that P.W. 2, the victim is a minor aged about 15 years and in fact she is a major aged above 18 years at the relevant time. Therefore, the finding of the trial Court that even if there is any consent on the part of P.W. 2 that will not save the accused from conviction as sexual intercourse with a minor aged below 16 years even with her consent would amount to rape under Section 376 IPC and under the POCSO Act she is to be considered as a minor up to 18 years age is not correct and it is erroneous and the same is unsustainable. He would contend that even P.W. 9 who has conducted the age determination test deposed that there may be a difference of one year more or less to the said 15 years of age opined by her and as such the said opinion is not accurate and it is to be held that P.W. 2 is a major and as it is a case of consensual sexual intercourse, no offence either under Section 376 IPC or under the POCSO Act is made out. The trial Court grossly erred in recording a finding of guilt against the accused and thereby prayed to allow the appeal and acquit the accused of the said charges. 6. The trial Court grossly erred in recording a finding of guilt against the accused and thereby prayed to allow the appeal and acquit the accused of the said charges. 6. Countering the said argument, the learned Public Prosecutor contends that the evidence of P.W. 9 who has conducted age determination test and Ex. P-4 certificate issued by her proves that P.W. 2 is aged about 15 years and even in the cross-examination also, she stated that aged about 15 years means plus or minus one year and even as per the said calculation also, if one year is added, P.W. 2 would be 16 years of age at the time of offence and as such she is to be considered as a minor both for the purpose of Section 376 IPC and also under the POCSO Act as up to 18 years she is to be treated as a child and minor. So he contends that viewed from any angle, it is proved that P.W. 2 is a minor both for the purpose of Section 376 IPC and also for POCSO Act. So even if it is a case of consent, as rightly held by the trial Court, it will not save the accused from the clutches of law and he is guilty of committing rape on P.W. 2 continuously till she became pregnant and as such the trial Court rightly convicted him and sentenced him to undergo imprisonment for the offences committed by him. Therefore, he prayed to dismiss the appeal. 7. In the backdrop of the above factual scenario, at the outset it is apposite to first consider the relevant provisions relating to the offences under Section 376 of IPC and under the POCSO Act. 8. Since it is the case of the prosecution that P.W. 2 the victim girl is a minor for the purpose of Section 376 IPC and a child for the purpose of the offence under the POCSO Act, it is relevant to note that Section 376(2)(n) envisages that whoever commits rape repeatedly on the same woman that he shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine. Section 2(d) of the POCSO Act defines "child" stating that a child means any person below the age of 18 years. Section 5 of the POCSO Act deals with aggravated penetrative sexual assault and Section 5(j)(ii) thereof is relevant in the context to consider which says that whoever commits penetrative sexual assault on a child, which in the case of a female child, makes the child pregnant as a consequence of sexual assault, it is aggravated penetrative sexual assault. Section 6 of the Act deals with punishment for aggravated penetrative sexual assault and whoever, commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life and shall also be liable to fine. Most importantly, it is relevant to note the amended Section 375 IPC which defines the offence of rape. Section 375 IPC was drastically amended by Act 13/2013 which came into force with effect from 03-02-2013. As per the amended definition of "rape" under Section 375 IPC, as per the sixth circumstance contemplated in the Section, sexual intercourse with or without consent of a female under 18 years of age also constitutes an offence of rape. The relevant part of Section 375 IPC under clause six titled as sixthly reads as follows: "Sixthly.--With or without her consent, when she is under eighteen years of age." 9. As this amendment came into force with effect from 03-02-2013 and as the offence of rape in this case took place as per the prosecution version seven months prior to the lodging of the report on 29-01-2014, the amended Section 375 IPC applies to the present facts of the case. If seven months prior to 29-01-2014 is reckoned, the time of offence would be around July or August, 2013. So the case squarely falls within the amended provisions of Section 375 IPC. So even for the purpose of Section 375 IPC, a girl below 18 years of age is to be considered as a minor child and sexual intercourse with any such female below 18 years of age even with consent clearly constitutes an offence of rape as defined under Section 375 IPC punishable under Section 376 IPC. 10. So even for the purpose of Section 375 IPC, a girl below 18 years of age is to be considered as a minor child and sexual intercourse with any such female below 18 years of age even with consent clearly constitutes an offence of rape as defined under Section 375 IPC punishable under Section 376 IPC. 10. Now it is important to note Section 42 of the Act which deals with imposition of punishment when an act committed by the offender constitutes an offence punishable both under the POCSO Act and also under Sections 375 and 376 of IPC and other allied offences of like nature. It ordains that notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree. 11. In the instant case, since the case of the prosecution is that P.W. 2 the victim girl is aged about 15 years at the time of the offence and that she is a minor both for the purpose of Sections 375 and 376 of IPC and for the purpose of Sections 5 and 6 of the POCSO Act for commission of the offence of aggravated penetrative sexual assault as the accused had continuous sexual intercourse with the victim girl till she became pregnant and made her pregnant as a consequence of the said sexual assault, the present case has to be considered in the light of the above relevant provisions of the Indian Penal Code and the POCSO Act i.e. Sections 375 and 376 of IPC and Sections 2(d), 5 and 6 of the POCSO Act along with Section 42 of the POCSO Act. 12. The fact that the accused is the neighbour of P.W. 2 is not in dispute. P.W. 2, who is the victim, deposed that she is residing in Wambay Colony, Vijayawada and she knows the accused who is her neighbour. The said evidence of P.W. 2 is not controverted by the accused. In fact, in her cross-examination, P.W. 2 stated that there was a house in between their house and the house of the accused. The said fact is elicited by the accused himself in the cross-examination of P.W. 2. The said evidence of P.W. 2 is not controverted by the accused. In fact, in her cross-examination, P.W. 2 stated that there was a house in between their house and the house of the accused. The said fact is elicited by the accused himself in the cross-examination of P.W. 2. Therefore, it is now evident that the accused is the neighbour of P.W. 2 who is living in a house by the side of the house of P.W. 2 separated by another house. P.W. 2 categorically deposed in her evidence that her parents leave the house at 06.00 a.m. every day and she will be alone in the house. P.W. 1, who is her mother, also deposed that they leave house at 06.00 a.m. every day and again reaches their house at about 01.00 or 02.00 p.m. P.W. 2 further deposed in her evidence that on one day the accused came to their house and asked her to follow him to his house as he got some work with her and thereby took her to his house and closed the doors and kept the knife on her neck and threatened her to kill if she does not satisfy his lust and thereby committed rape on her. She also deposed that thereafter also he used to regularly take her to his house to commit rape on her by threatening her to kill and that he committed rape on her for about seven months under threat. She also deposed that he used to threaten that he would kill her and also her family members if she discloses the incident to any of her family members. She finally deposed that when she had vomitings after seven months and when her mother questioned her that she has informed the incident to her mother out of fear and her parents took her to the police station and her statement was recorded which is Ex. P-1. 13. Nothing was elicited in the cross-examination of P.W. 2 by the accused to discredit the testimony given by her regarding the manner in which the accused had sexual intercourse with her for about seven months. She denied the suggestion that a false case was foisted against him at the instance of her parents to have a wrongful gain from him. Nothing was elicited in the cross-examination of P.W. 2 by the accused to discredit the testimony given by her regarding the manner in which the accused had sexual intercourse with her for about seven months. She denied the suggestion that a false case was foisted against him at the instance of her parents to have a wrongful gain from him. There is no merit in the said contention of the accused that a false case was foisted against him to have wrongful gain from him at the instance of her parents. It is relevant to note here that the accused is also not an affluent man. He is also a labourer and impoverished. So, it cannot be believed that a false case was foisted against him who is a poor man to have wrongful gain from him. Further, no parents would foist a false case at the stake of the modesty of their daughter. So, the said defence version that a false case was foisted against him to have a wrongful gain from him cannot be countenanced. 14. However, some circumstances are elicited in the cross-examination of P.W. 2 that the alleged sexual intercourse which the accused had with P.W. 2 is not a forcible sexual intercourse and that it is a consensual sexual intercourse. P.W. 2 stated in her evidence that her residential locality is a busy locality and she did not inform about the said incident to the people in the locality and that she also did not inform about the incident to her parents. Most importantly she admitted that she did not make any attempt to escape from the accused. However, she stated that she did not make any attempt to escape out of threat to her life. She admitted that the accused did not beat her. However, she added that he has shown a knife to her. She further stated that the accused committed rape on her in his house during day time for more than 10 or 20 times by showing the knife and also stated that when she refused to accompany the accused, as he used to threaten her, that she followed him to his house. She further stated that she used to stay in the house of the accused for about one and half hours to two hours at that time. She further stated that she used to stay in the house of the accused for about one and half hours to two hours at that time. So, this evidence that was elicited in the cross-examination of P.W. 2 clearly shows that whenever the accused used to call her to his house that she used to follow him and stay in his house for about one and half hours to two hours and used to have sexual intercourse with him and her evidence further shows that for about 10 or 20 times they had sexual intercourse spread over for about seven long months. So, a careful perusal of this evidence of P.W. 2 in her cross-examination clinchingly proves that her version that the accused used to threaten her with a knife to kill her and thereby used to have forcible sexual intercourse on her for about 10 or 20 times in a span of seven months is absolutely not believable and it is purely a concocted story. If the evidence of P.W. 2 is considered with a pragmatic approach, it clearly goes to show that she used to voluntarily accompany the accused to his house and' had sexual intercourse with the accused several times for a period of seven months. It cannot be believed that every time during the said seven months' period and on all the said 10 or 20 occasions that the accused continuously used to threaten her with a knife and thereby used to have a forcible sexual intercourse on her. On the face of the said version of P.W. 2, the falsity in the said version is apparent. No reasonable and prudent man would readily accept and believe the said version of P.W. 2 the victim which is absurd and false on the face of the said version. It is too preposterous to countenance the said version that for seven months period the accused took her to his house under threat and thereby had sexual intercourse with her. 15. Therefore, the fact that stood established in this case is that the accused used to have sexual intercourse with P.W. 2 with her consent. She also participated in the sexual intercourse with the accused with her free will and volition. 15. Therefore, the fact that stood established in this case is that the accused used to have sexual intercourse with P.W. 2 with her consent. She also participated in the sexual intercourse with the accused with her free will and volition. The evidence of P.W. 11, the doctor who examined P.W. 2 proves that she was a pregnant at the time of her examination with 29 to 30 weeks' fetus. So, it is evident that she had sexual intercourse with him till she became pregnant. 16. Now the crucial question that arises for adjudication is whether P.W. 2 is a minor aged about 15 years at the time of offence and if so whether the consent given by her for sexual intercourse to the accused would save him from the criminal liability under Section 376 IPC and under Section 6 of the POCSO Act or not. Even if it is found that she is aged more than 16 years as contended by the learned Defence counsel, whether sexual intercourse had by the accused with the consent of P.W. 2 would save him from the offence under Section 376 IPC is also the question to be determined. As the girl under the age of 18 years is considered to be a child under Section 2(d) of the POCSO Act and in view of amendment to Section 375 IPC which makes the sexual intercourse even with consent with a female below the age of 18 years an offence of rape, these aspects assume significance for adjudication of guilt of the accused. So, it is to be now ascertained whether P.W. 2 is aged about 15 years as alleged by the prosecution or not. 17. The evidence of the two Doctors examined as P.W. 9 and P.W. 11 and Ex. P-4 Age Determination Form and Ex. P-5 Certificate issued by P.W. 11 who examined her are relevant in the context to consider. P.W. 11 is the Assistant Professor in the Department of Gynecology in Siddhartha Medical College, Vijayawada, who examined P.W. 2 on the reference made by the Police. She deposed that she has examined P.W. 2 who is aged about 15 years. Now the evidence of P.W. 9 is crucial in the context to consider. She is the Assistant Professor in the Department of Forensic Medicine of Siddhartha Medical College in Vijayawada. She has conducted age determination test on P.W. 2. She deposed that she has examined P.W. 2 who is aged about 15 years. Now the evidence of P.W. 9 is crucial in the context to consider. She is the Assistant Professor in the Department of Forensic Medicine of Siddhartha Medical College in Vijayawada. She has conducted age determination test on P.W. 2. She deposed that on 01-02-2014 she has examined P.W. 2 to determine her age and that she has conducted physical examination, dental examination and radiological examination on P.W. 2 and stated that as per her examination she is of the opinion that the victim girl is aged about 15 years as on the date of her examination. She also stated that she has issued Ex. P-4 Certificate. In Ex. P-4 Certificate also she opined that on physical, dental and radiological examination she is of the opinion that she is aged about 15 years. She has also produced Ex. P-9 X-ray film relating to the said radiological examination. In her cross-examination it was elicited by the accused that, aged about 15 years means plus or minus one year. Therefore, even if one year is added to the said 15 years, still the age of P.W. 2 would be 16 years at the time of the offence. Learned defence counsel argued that as per medical jurisprudence there would two year margin to the age as opined by the expert. If his contention is accepted, even if two years are added to the age of 15 years as opined by P.W. 9, still P.W. 2 would be only aged about 17 years and she is a child as defined under Section 2(d) of the POCSO Act and it constitutes an offence of rape under sixth circumstance as per amended Section 375 IPC as already discussed supra. So, the medical evidence on record as can be seen from the testimony of P.W. 9 who is the Assistant Professor in the Department of Forensic Science of Medicine who has examined P.W. 2 to determine her age and Ex. So, the medical evidence on record as can be seen from the testimony of P.W. 9 who is the Assistant Professor in the Department of Forensic Science of Medicine who has examined P.W. 2 to determine her age and Ex. P-4 Certificate issued by her proves that P.W. 2 is aged about 15 years at the time of her examination and since the said opinion may not be accurate as per the settled law and even if one year is added to the said 15 years of age as elicited by the accused in the cross-examination of P.W. 9, it is established in this case that P.W. 2 cannot be aged about more than 16 years. Even if two years are added she is aged about 17 years and she is a child under the POCSO Act and a minor for the purpose of Sections 375 and 376 IPC. Therefore, it is to be held that P.W. 2 was a minor aged below 18 years at the relevant time when the accused had repeated sexual intercourse with her on several occasions for a period of seven months till she became pregnant during the year 2013. Therefore, when once it is found that P.W. 2 was a minor aged about 15 to 18 years at the time when the accused had sexual intercourse with her and made her pregnant, even if there is any consent given by P.W. 2 for the sexual intercourse and even if it is a case of consensual sexual intercourse with a free will and volition of P.W. 2, it will not come to the rescue of the accused and he cannot be exonerated from the criminal liability as sexual intercourse with a minor girl below the age of 18 years even by consent would amount to commission of offence of rape by the accused under Section 375 IPC and sexual intercourse with a child below the age of 18 years even with consent till she became pregnant constitutes an offence of aggravated penetrative sexual intercourse under Section 5(a)(j)(ii) of the POCSO Act. 18. At any rate, as P.W. 2 cannot be aged about more than 18 years, she is to be considered as a child for the purpose of POCSO Act. 18. At any rate, as P.W. 2 cannot be aged about more than 18 years, she is to be considered as a child for the purpose of POCSO Act. So, she is a minor for the purpose of POCSO Act and consent by minor for sexual intercourse cannot be a valid defence for the accused to exonerate himself from the criminal liability. So, viewed from any angle, it is to be held that P.W. 2 is a minor and the accused had repeated sexual intercourse with her taking advantage of the fact that she is alone in the house in the absence of her parents and taking advantage of her tender age till she became pregnant. Therefore, it is held that accused is guilty of commission of offences punishable under Section 376(2)(n) of IPC and Section 6 of the POCSO Act, 2012. 19. The trial Court upon considering the said evidence on record and on proper appreciation of the same arrived at a right conclusion that P.W. 2 is a minor and that the accused had continuous sexual intercourse with her for a period of seven months till she became a pregnant and thereby rightly recorded a finding of guilt against him and convicted him for the said offences and punished him for the said offences. Upon reappraisal of the evidence on record, this Court also found that P.W. 2 is a minor both for the purpose of Section 376 IPC and under the POCSO Act, 2012 and the accused had sexual intercourse with her repeatedly for seven months till she became pregnant and thereby rendered himself liable for punishment under Section 376(2)(n) of IPC and Section 6 of the POCSO Act, 2012. 20. However, having regard to the age of the accused that he is aged about 53 years at the time of commission of offence in the year 2013 and now that he is aged about 59 years, we deem it appropriate to alter the punishment imposed on him from life imprisonment to a minimum sentence often years in the facts and circumstances of the case. Since the minimum sentence both under Section 376(2)(n) of IPC and under Section 6 of the POCSO Act is ten years, we are of the considered view that imposition of rigorous imprisonment for a period often years along with the fine as imposed by the trial Court with default sentence would meet the ends of justice in the facts and circumstances of the case. Therefore, the sentence is accordingly modified and altered from life imprisonment to ten years of rigorous imprisonment with fine of Rs. 40,000/- in default of payment of fine to undergo simple imprisonment for three months. Since the accused is an Under Trial Prisoner undergoing imprisonment for the last more than five years, we are of the considered view that the above sentence of ten years rigorous imprisonment would meet the ends of justice. 21. In the result, the appeal is dismissed confirming the impugned judgment of conviction passed against the appellant by the trial Court. However, the sentence is modified from life imprisonment to ten years of rigorous imprisonment with fine as detailed supra.