Andhra HC (Pre-Telangana)
Surapathi Laxmana Rao vs State Of A.P. on 15 July, 2003
Equivalent citations: 2003(2)ALD(CRI)355, I(2004)DMC281
Author: B. Seshasayana Reddy
Bench: B. Seshasayana Reddy
ORDER B. Seshasayana Reddy, J.
1. This criminal revision case is directed against the judgment dated 19.10.2001 passed in Criminal Appeal No. 13 of 2001 on the file of Sessions Judge, Mahila Court, Visakhapatnam whereby the learned Sessions Judge confirmed the conviction and sentence of the accused for the offence under Section 417 of IPC passed in C.C. No. 250 of 1999 on the file of III Metropolitan Magistrate, Visakhapatnam.
2. The petitioner herein is the accused in C.C. No. 250 of 1999. The prosecution case in brief is as follows :
P.W. 1 K. Nagamani is daughter of P.W. 2. K. Saroja and younger sister of P.W. 3 Kanaka Ratna. P.W. 1 was aged about 18 years in the year 1998. She was residing with her mother P.W. 2. Accused Surapathi Laxmana Rao is an employee in Lipi Enterprises, Isukatota, Visakhapatnam. He resided in the neighbourhood and used to frequently visit the house of P.W.1. During one of his visits he informed her that he was in love with her and she also reciprocated and they started loving each other. They went to cinemas and other places. She started cohabiting with the accused and this continued for nearly three years. It is alleged that she gained pregnancy and got the pregnancy aborted in the year 1995-96. The accused promised to marry her in the year 1998. Parents of the accused demanded Rs. 50,000/-. The demand was conceded by her parents. When the parents of the accused arranged his marriage with another girl whose parents offered more dowry, she approached the village elders. P.W. 4. B. Ellappa and P.W. 5 B. Shanmukha Rao, caste elders, called both the parties and enquired the matter. The accused stated to have told them that he would marry P.W. 1 if her parents give Rs. 50,000/-. Later, the accused refused to marry P.W. 1 and beat her and her mother and hence P.W. 1 went to III Town (Law and Order) Police Station and presented Ex. P-1 report before the SHO. P.W. 7 R. Sanjeeva Rao received Ex. P-1 report and registered a case in Cr. No. 130/98 under Sections 417, 493, 420, 323, 506 and Sections 3 and 4 of D.P. Act and issued Ex. P-3 FIR. He examined P.Ws. 1 to 5 and recorded their statements. He sent P.W.1 to hospital for medical examination. L.W. 11 J. Rajasekhar, Civil Assistant Surgeon examined her medically and issued certificate opining that it is difficult to give opinion at present whether the victim had abortion or not in March, 1996. P.W. 7 arrested the accused on 21.7.1998 and sent him for medical examination. P.W. 6 Dr. D.S. Patnaik examined the accused and opined that there was no evidence to suggest that the accused is impotent or incapable of carrying sexual intercourse. Ex. P-2 is the medical certificate issued by him. After completing the investigation P.W. 7 laid charge-sheet in the Court of III Metropolitian Magistrate, Visakhapatnam. The learned Magistrate took the charge-sheet on file as C.C. 250/99. On appearance of the accused and on furnishing copies of documents to him; the learned Magistrate framed the charges. Firstly, for the offence under Section 417 of IPC, secondly for the offence under Section 323 of IPC, thirdly for the offence under Section 506, IPC and lastly for the offence under Section 4 of Dowry Prohibition Act. The learned Magistrate read over and explained the charges to the accused for which the accused pleaded not guilty and claimed to be tried. In order to substantiate the case against the accused, the prosecution examined P.Ws. 1 to 7 and marked Exs. P-1 to P-4. On behalf of the accused, neither ocular nor documentry evidence was adduced. On considering the evidence and on hearing the prosecution and the accused, the learned Magistrate found the accused guilty for the offence under Section 417, IPC while finding him not guilty for the other offences and convicted him accordingly and sentenced him to suffer S.I. for a period of six months and to pay a fine of Rs. 1,000/-; in default to suffer S.I. for three months. Feeling aggrieved by the conviction and sentence for the offence under Section 417 of IPC, the accused has filed Crl. A. No. 13 of 2001 on the file of Sessions Judge, Mahila Court, Visakhapatnam. On reappraisal of the evidence the learned Sessions Judge confirmed the conviction of the accused for the offence under Section 417 of IPC by judgment dated 19.10.2001. Assailing the order of conviction and sentence, the accused has filed this criminal revision case.
3. Learned Counsel for the petitioner/accused contends that the failure to keep the promise of marriage on fulture uncertain date does not amount to misconception of fact at the inception of the act itself and therefore the conviction of the petitioner/accused for the offence under Section 417, IPC is not sustainable. It is also contended by him that if a full grown up girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. It is further contended by him that non-examination of the Doctor who treated P.W. 1 to speak of her termination of pregnancy is fatal to the prosecution and therefore the conviction and sentence of the petitioner/accused for the offence under Section 417 of IPC is liable to be set aside. He placed reliance on the decision of Supreme Court in Uday v. State of Karnataka, I (2003) CCR 376 (SC)=II (2003) SLT 131=2003 (1) ALD (Crl.) 498 (SC), and the decisions of Calcutta High Court in Jayanti Rani v. State of W.B., 1984 Cri.L.J. 1535, and Hari Majhi v. State, 1990 Cri.L.J. 650. The learned Public Prosecutor submits that the evidence of P.W. 1 is crystal clear that the petitioner/ accused induced her to consent for sexual intercourse by way of promise to marry her and therefore the conviction and sentence of the accused for the offence under Section 417 of IPC is not liable to be interfered in this revision.
4. It is settled law that when a conviction is recorded by the trial Judge and upheld by the first Appellate Court, re-appreciation of the evidence cannot be done unless there is miscarriage of justice. It is held in State of Kerala v. Puttumanai Illath Jathavendan Namboodri, 1999 Cri.L.J. 1443, That the High Court in its re visional jurisdiction, can it for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. Therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreaciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.
5. In a criminal trial, the burden of proving everything essential to establish of the charge against the accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not be presumed, subject of course to some statutory exception. There is no such statutory exception pleaded in the present case.
6. The case against the petitioner/accused is that he induced P.W. 1 who is the victim to consent for sexual intercourse with a promise to marry her and subsequently he refused to marry her. "Cheating" is defined in Section 415 of IPC which is as under :
"415. Cheating--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or ornit if he were not so deceived, and which act of omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat'.
Explanation--A dishonest concealment of facts is a deception within the meaning of this section."
The first part of the definition relates to property. The second part need not necessarily relate to property. The second part speaks of intentional deception which must be intended not only to induce the person deceived to do or omit to do someting but also to cause damage or harm to that person in body, mind, reputation or property. It has been held by the Supreme Court in G.V. Rao v. L.H. V. Prasad and Ors., , that intention and deception presupposes the existence of a dominant motive of the person making the inducement. Such inducement should have laid the person deceived or induced to do or omit to do anything which he would not have done or omitted to do it he were not deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property. As mentioned above Section 415 of IPC has two parts. While in the first part, the person must "dishonestly" or "fraudulently" induce the complainant to deliver any property and the second part need not necessarily relate to property. In the second part, the person should intentionally induce the complainant to do or, omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. The Supreme Court in Jaswantrai Manilal Akhaney v. State of Bombay, AIR 1956 SC 475, held that a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, "mens rea" on the part of that person must be established. It was also observed by the Supreme Court in Mahadeo Prasad v. State of W.B.,, that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered.
7. Section 415 of IPC does not, in any manner limit the Code in which the deception may take place nor is it necessary that the deception should be by express words, but it may be by conduct or implied in nature of transaction itself. Where the charge of cheating, as in this case, rests upon a representation, which is false and which relates not to an existing fact but to a certain fature event, it must be shown by the prosecution that the representation is false to the knowledge of the accused when it was made. It will be of no consequence to show that in fact the representation has ultimately turned out to be untrue. The Calcutta High Court in Jayanti Rani v. State (supra), observed that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not act induced by misconception of fact and that Section 90 of the Penal Code cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her. In Hari Majhi v. State (supra), it is held that where the charge of cheating, rests upon a representation, which is false and which relates not to an existing fact but to a certain future event, it must be shown by the prosecution that the representation is false to the knowledge of the accused when it was made and that it will be of no consequence to show that in fact the representation has ultimately turned out to be untrue. In the cited case the victim conceived as a result of sexual intercourse from the accused who agreed to marry her. The accused ultimately married the victim following Hindu rites and formalities and kept up his promise. The victim consented for sexual intercourse with the accused since she loved him. Ultimately it was the love that made the parties to enter into carnal relationship. In this set of facts the Calcutta High Court held as follows :
"Moreover, on the basis of the evidence on record, it cannot be held that the P.W. 1 would not have agreed to have sexual intercourse with the accused but for the alleged promise. There was love between the accused and the complainant. The accused used to give her assurance at the time of sexual intercourse that he would marry her. No one has said that she would not have agreed to the sexual intercourse but for the alleged promise of marriage. She admits that she loved the accused. The trouble really started, as it appears, when the accused, perhaps, intended to marry another girl. In our view, the learned Judge proceeded on an erroneous assumption and approach. The evidence would go to show that the appellant had no doubt committed sexual intercourse with the prosecutrix, but such an intercourse was done with the tacit consent, if not express consent of the prosecutrix. Reliance has been placed in the case of Jayanti Rana Panda v. State reported in 1984 Crl.L.J 1535, where this Court held that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not act induced by misconception of fact. Section 90 of the Penal Code cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her."
8. In Uday v. State of Karnataka (supra) cited the Supreme Court considered the concept of misconception of fact and oberved as follows :
"The consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. But there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."
Considering the circumstances therein the Supreme Court came to the conclusion that the prosecutrix permitted the accused liberties, which, if at all, is permitted only to a person with whom one is in deep love. It is useful to extract the observation of the Supreme Court in the above referred decision and it is thus :
"There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90, IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was, therefore, a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary the circumstances of the case tend to support the conclusion that the appellant has reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, is permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situation and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."
9. It is explicit from the above referred decisions that the consent given by the prosecutrix to sexual intercourse with the person with whom she is in deep love on a promise that he would marry her on a later date cannot be said to be given under a misconception of fact.
10. Keeping in view the proposition of law laid down by various High Courts and Supreme Court in the above referred decisions, I shall now proceed to consider the evidence on record in the case on hand. In the instant case P.W. 1 who is the victim was a grown up girl aged 18 years by the date of the incident and she was deeply in love with the petitioner/accused. The love between the petitioner/ accused and P.W. 1 sprouted in the year 1995 and subsequently it blossomed into cardinal relationship and it lasted for three years. They were loving with each other from 1995 to 1998. Their sexual relationship was preceded by love and it was not vice versa. This can be gathered from the evidence of P.W. 1 who is no other than the victim. I feel it apposite to refer her evidence in her own words and it is thus :
"I am resident of Peda Waltair, and I am housewife. I know accused, I have acquaintance with accused from 1995, he is our neighbour, he used to come to our house. He informed that he is loving me and he took me cinema and outsider of the house. We loved each other and have sexual intercourse also. On two occasions I got abortion. He promised to me he will marry after containing job. I forced him to marry me in the year 1998. His parents demanded Rs. 50,000/- from our parents. Our parents also accepted the proposal. After that they arranged another match with larger dowry. For that we approached the village elders. In the presence of elders, accused accepted to marry. Accused brother came later and informed that they will pay Rs. 50,000/- to avoid the marriage. On 13.5,1998 accused and his brother came and beat us, On that we gave report. Report marked, as Ex. P-1."
It is manifest from her evidence that she and the petitioner/accused fell in love with each other and thereafter their association led them to have sexual intercourse. P.W. 1 claims that she gained pregnancy because of her association with petitioner/ accused and got the pregnancy terminated twice. The prosecution did not choose to examine the Doctor who has been cited as L.W, 11 Dr. J. Raja Sekhar to speak of the termination of pregnancy of P.W. 1. P.W. 2's evidence in no way helps to improve the prosecution case since she did not even speak of P.W. 1 informing her that she gained pregnancy because of her association with the petitioner/ accused. It is useful to extract the evidence of P.W, 2 in her own words :
"I am resident of Peda Waltair, Visakhapatnam and house wife, P.W. 1 is my daughter. Accused used to reside side of our house and used to come to our house. Accused informed that he will marry my daughter and asked Rs. 50,000/- to me. Thereafter he informed to marry her, P.W. 1 informed me that she made abortion. We mediate before the elders. There they agree to marry my daughter. But he did not marry P.W. 1 and tried to beat us. Hence we filed this case."
11. P.W. 3 Kanakaratnam is sister of P.W. 1. She also did not speak of P.W. 1 gaining pregnancy due to her association with the petitioner/accused. P.W. 4 B. Yellappa and P.W. 5 Shanmukha Rao are said to be the elders in the Panchayat. It is their evidence that the petitioner/accused demanded Rs. 50,000/- to marry P.W. 1. It is not the case of P.W. 1 who is the victim that the accused/petitioner demanded Rs. 50,000/- to marry her. P.W. 6 is Doctor who examined the petitioner/ accused and issued Ex. P-2 potency certificate. On close scrutiny of the evidence of P.W. 1, it can certainly be said that she consented for sexual intercourse with the petitioner/accused as she was deeply fell in love with him. It is the love which preceded their physical union and the love lasted for nearly three years. The Trial Court and the appellate Court has committed grave error in finding that that consent of P.W. 1 for sexual intercourse is obtained by way of inducement. When the consent of P.W. 1 who is the victim girl for sexual intercourse is not because of the petitioner/accused promising to marry her, it cannot be said that the petitioner/ accused committed offence punishable under Section 417 of IPC. Since the trial Court and the appellate Court committed grave error in convicting the petitioner/ accused for the offence under Section 417 of IPC it needs to be rectified by this Court in exercise of the revisional jurisdiction.
12. In the result, this Criminal Revision Case is allowed setting aside the conviction and sentence of the petitioner/accused for the offence under Section 417 of IPC passed in C.C.No. 250 of 1999 on the file of III Metropolitan Magistrate, Visakhapatnam and confirmed by the appellate Court in Cri. A. No. 13 of 2001 on the file of Sessions Judge. Mahila Court, Visakhapatnam.