Maturi Suman vs State Of Telanagna

Questioning the conviction under Sections 376 (1), 417 of Indian Penal Code and Section 3 r/w Section 4 of the Protection of Children from Sexual Offences Act, the present appeal is filed.

The case of the prosecution is that PW1 who is the victim was born on 15.05.2002. Eight months prior to filing of the present complaint which is dated 30.10.2019, PW1 attended a marriage at Dandepalli village wherein she met the appellant and exchanged mobile numbers. On 08.09.2019, the appellant called PW1 and accordingly on 09.09.2019, PW1 went to Hanmakonda from her village. On the same day, the appellant took PW1 to his room situated at Hanuman Nagar, Hanmakonda on his motorcycle and she stayed there, wherein the uncle of the appellant by name Murali (LW6) not examined was also present. On 10.09.2019, the said Murali left the room of the appellant and on the promise of love and marriage, the appellant had sexual intercourse with P.W.1. Thereafter, on the same day, the appellant left P.W.1 at the bus stand where she boarded the bus to her village. The appellant asked P.W.1 to wait for two months to get married. P.W.1 waited for 10 days and called the appellant and requested to marry her. However, the appellant refused stating that he is not inclined to marry. For the said reason, on 30.10.2019, P.W.1 narrated the said incident to P.W.2 her mother and for the reason of refusal of appellant to marry P.W.1, the mother- P.W.2 lodged a complaint Ex.P1 narrating the facts as stated above.

The learned counsel for the appellant submits that the appellant was aged 17 years and five months as on the date of complaint and further, the proof produced by the prosecution is Ex.P2, which is SSC Board Public Examination Marks Sheet and said certificate issued by the School, wherein the date of birth of the appellant is mentioned as 15.05.2002. However, the said certificate cannot be relied upon for the reason of the date of birth being entered in the school records on the assertion made by the appellants at the time of admission and it cannot be construed that such declaration of date of birth at the time of admission is correct.

The alleged incident of the appellant and P.W.1 having sexual intercourse was on 09.09.2019, the complaint was filed with a delay of nearly 50 days and there is no explanation for the said delay. The counsel for the appellant relied upon the judgment reported in Rajesh Patel v State of Jharkhand [(2013) 3 SCC 791], wherein their Lordships has held that when there is no proper explanation regarding delay of 11 days in filing the FIR by the victim, the case of the prosecution would become doubtful. He also relied on the judgment reported in Harijana Thirupala v. Public Prosecutor, High Court of AP, Hyderabad [(2002) 6 SCC 470], wherein their Lordships held that if two views are possible on the evidence produced in the case, one indicating the guilt and the other innocence of the appellant, the view favourable to the accused has to be accepted.

The counsel also relied upon the judgment reported in State of Karnataka v. F.Nataraj [(2015) 10 SCALE 495], wherein it was held that discrepant testimonies cannot be relied upon to convict the accused and when the solitary evidence of the victim casts a suspicion on the evidence being correct. The accused would be entitled to benefit of doubt. The counsel also relied upon another judgment in the case of Md.Ali @ Guddu v. State of U.P reported in LAWS (SC)-2015-3-10 to support his argument that when the facts of the case suggest that the victim is a consenting party, the benefit of the doubt is to be extended to the appellant.

On the other hand, learned Public Prosecutor submits that as seen from the SSC certificate, the said certificate issued by the institution stating that the girl was aged about 17 years 10 months, as on the date of complaint, for which reason, she is a child in accordance with POCSO Act, 2012 and when P.W.1 stated that the appellant had sexual intercourse on the promise of marriage and love, even though it is found to be consenting, such consent is of no consequence. The law does not recognize the consent of a minor. For the said reasons, the presumption under section 29 of the POCSO Act comes into play.

As seen from the evidence, the appellant failed to rebut the burden that shifted on to him by virtue of Section 29 of the POCSO Act.

From the reading of evidence of P.W.1, the appellant made a phone call and stayed over night in his room. However, on the next day in the absence of other inmate who is not examined, the appellant allegedly had sexual intercourse with P.W.1. Thereafter, she came back to her residence when the appellant dropped her in the bus stand. In the cross-examination, P.W.1 admitted that she met the appellant in a marriage, thereafter, she met the appellant when the appellant asked her to come to Warangal, when the incident occurred. The appellant made frequent calls to the mobile number of P.W.2 and P.W.1 used to talk to the appellant in the absence of her mother. She further adds that in the absence of her mother, she used to give a ring to the accused and thereafter, the accused used to call on her mother’s mobile number. P.W.1 further admitted that on 09.09.2019, she informed her parents that she was going to her maternal grandmother village, which is Dandepally. However, she went to the room of the appellant. In the said circumstances, when P.W.1 was frequently talking on phone with the appellant and she lied with her parents to meet the appellant and stayed back at his room, it cannot be said that there was any kind of force by the appellant and P.W.1 on her own proceeded to stay in the room of the accused by lying to her parents that she was visiting her grandmother.

In the judgment of Hon’ble Supreme Court in the case of State of Madhya Pradesh v. Munna [(2016) 1 SCC 696 and in Rajesh Patel v State of Jharkhand (supra), the Hon’ble Supreme Court held that when the prosecutrix was more than 16 years of age, she was competent to give her consent. In the present case, the victim was aged around 17 years and 10 months when the complaint was lodged. Further, there is no assertion by the mother that the date of birth 15.05.2002 is in fact correct. In the said circumstances, when the facts point towards the consent given by P.W.1 in the entire process of traveling to parents house and thereafter, for the reason of appellant refused to marry, present complaint being lodged, benefit of doubt can be extended to the appellant.

For the said reason, the appellant is found not guilty for the offence under Sections 376 (1), 417 of Indian Penal Code and Section 3 r/w Section 4 of the Protection of Children from Sexual Offences Act and directed to be set at liberty forthwith.

Accordingly, the Criminal Appeal is allowed. As a sequel thereto, miscellaneous applications, if any, shall stand closed and bail bonds discharged.