STATE OF ANDHRA PRADESH Vs. P NARASIMHA

JUDGEMENT

(1.) These appeals are by the State, who has felt aggrieved at the acquittal of the two respondents by the High Court on appeals being preferred by them against their convictions, which were under Ss. 366, 366A and 376, IPC insofar as respondent No. 1 is concerned and under S. 376 as regard respondent No. 2. Two other accused had also been booked for trial under S. 366 but they were acquitted.

(2.) The short facts which need be noted for the disposal of the appeals are that according to the prosecution, PW 3 Bhagyamma had been kidnapped by respondent No. 1 with the intent that she would be forced or seduced to have intercourse, whereafter she came to be raped by both the respondents. The High Court, after perusal of the materials on record, took the view that elopment of Bhagyamma may not be ruled out. After hearing Shri Raghuvir for the appellant-State, we have not felt inclined to take a view different from that of the High Court on this aspect. Shri Raghuvirs main submission, however, is that acquittal of respondent No. 1 under S. 366 was not warranted, even if, age of Bhagyamma be taken to be above 16. The relevance of this age is that consent becomes material if the age be above 16. For the appeals at hand, we shall presume that Bhagyamma was above 16. We have taken this stand because the evidence of PW 13, Professor S.N. Narain Reddy who had examined Bhagyamma, is that her age, which was 16 or 17 as determined on the basis of ossification test, could differ by one or two years this way or that way.

(3.) Let us, therefore, see whether in the facts of the present case it could be held that Bhagyamma had consented to the sexual act insofar respondent No. 1 is concerned. Learned counsel for the respondents has contended in this connection that the fact that Bhagyamma had kept totally silent about the sexual assault on her when she had met P.W. 2 soon after she had started living with respondent No. 1 would show that she was a consenting party. This submission is reinforced by contending that Bhagyamma took exception to overtures of respondent No. 1 after she got herself married to respondent No. 2. This would show, according to the learned counsel, that prior to that Bhagyamma had really not objected to the sharing of bed with respondent No. 1.