Telangana High Court
A.Venkatesh vs The State Of Ap., on 7 January, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
THE HONOURABLE Dr. JUSTICE G. RADHA RANI
CRIMINAL APPEAL No.906 of 2012
JUDGMENT:
This appeal is preferred by the appellant/accused aggrieved by the conviction and sentence recorded by the Special Sessions Judge- cum-Additional District and Sessions Judge, Ranga Reddy District vide orders in S.C. No.63 of 2010 dated 28.08.2021 imposing a sentence to suffer simple imprisonment for a period of six months for the offence under Section 417 IPC.
2. The case of the prosecution, in brief, as per the charge-sheet filed by the Assistant Commissioner of Police, Saroornagar Division, Cyberabad was that the complainant, who was the mother of the victim women came to the Police Station, Vanasthalipuram, on 29.12.2009 at 1.00 PM., and lodged a report that her daughter R.Ashalatha, Woman Home Guard - 1051 was working in Woman P.S., Saroornagar. The accused, who was working as P.C.-499 in bomb diffusal team dog squad, Amberpet, induced her daughter by promising to marry representing that he was an unmarried person and set up marital life in a room at Amberpet and had been leading marital life with her since 2008. Thereafter, they came to know that he was already married and was having two children. When the complainant and her daughter enquired with the accused he informed that his wife was mentally retorted and promised to marry the daughter of complainant with the consent of his wife. But unfortunately the wife Dr.GRR,J 2 CrlA.No.906 of 2012 of the accused died. He got vacated the house at Amberpet, shifted to Vanasthalipuram and staying in a house representing to the locality people that they were husband and wife and were leading marital life. Out of suspicion that he might deceive her daughter, her brother-in- law brought an alliance to her daughter and they also fixed an engagement date but the accused came to the house of complainant's brother-in-law and requested him to stop the engagement promising that he would marry the daughter of complainant in April, 2010. But later, the accused demanded dowry of Rs.3,00,000/- to marry the complainant's daughter and refused to marry her otherwise. The daughter of the complainant explained that they could not afford such huge amount of dowry. While so, on 19.11.2009 the accused married another woman. When contacted on phone he informed that he was forced to marry under unavoidable circumstances and further promised to look after her daughter and also marry her as a second wife. When the complainant refused for the second marriage, he threatened her to do whatever she could do.
3. Based on the said report, Police registered a case in Crime No.767 of 2009 under Section 420 IPC. During the course of investigation, the Investigating Officer on coming to know that the victim woman belonged to SC community and the accused belonged to BC community, added Section 3(1)(xii) of SC/ST (POA) Act, 1989 (for short "the Act") and handed over further investigation to the Assistant Commissioner of Police, Saroornagar Police Division, Dr.GRR,J 3 CrlA.No.906 of 2012 Cyberabad. The Assistant Commissioner of Police, Saroornagar Division, re-examined the complainant and the victim woman, re- recorded their statements, collected evidence from other witnesses and after completing the investigation filed charge-sheet against the accused for the offence under Section 3(1) (xii) of the Act and Section 417 IPC.
4. The case was taken on file by the VII Metropolitan Magistrate, Hayathnagar and as the offence under Section 3(1) (xii) of the Act was exclusively triable by the Special Court, committed the case as PRC. No.15 of 2010 to the Special Court.
5. The Special Court for trial of SC/ST cases framed charges against the accused under Section 3(1)(xii) of the Act and under Section 417 IPC. As the accused pleaded not guilty and claimed to be tried the trial was conducted against the accused.
6. During the course of trial, the prosecution got examined P.Ws.1 to 10 and got marked Exs.P.1 to P.5. The accused was examined under Section 313 Cr.P.C. with regard to the incriminating material appearing against him in the evidence of prosecution witnesses. He denied the said evidence as false. He failed to adduce any evidence on his behalf.
7. On hearing the Prosecution and the defence counsel and on examining the evidence on record, the trial court acquitted the accused for the offence under Section 3(1)(xii) of the Act but convicted him Dr.GRR,J 4 CrlA.No.906 of 2012 for the offence under Section 417 IPC., and imposed a sentence to suffer simple imprisonment for a period of six months for the said offence.
8. Aggrieved by the said conviction and sentence imposed by the Special Court, the accused preferred this appeal contending that the court below failed to appreciate the evidence in a proper perspective by misconstruing the facts on record. The court failed to appreciate that P.W.2 was already a married woman and was blessed with a child through her husband and she left him without any dissolution of marriage much less customary, allowed her husband to re-marry and opted herself to lead the life of her choice. P.W.2 knowing fully well that the accused was a married man and was blessed with children developed intimacy with the accused. The alleged customary divorce of P.W.2 with her husband was dubious and was not sufficient for her to go on with remarriage, in the absence of a decree from competent civil court or even in the absence of customary deed showing dissolution with her former husband. The disqualification of P.W.2 for re-marriage itself was a justifiable ground and would not fall within the meaning of simple cheating as she suppressed the fact regarding her marital status. The P.W.2 was very well aware that the appellant was a married man and was having family, the person living in an immoral unchaste life for quite longer time could not take the pretext of promise to marry as such, the case would not fall within Section 417 IPC. The trial court went wrong in holding that the proof Dr.GRR,J 5 CrlA.No.906 of 2012 of customary deed was not compulsory in certain communities. Indeed the proof of dissolution from competent court was must so as to avoid perpetration of further illegality. The trial court should have taken the age, status into consideration and must have taken lenient view and prayed to allow the appeal by setting aside the conviction and sentence passed by the Special Court.
9. Heard the learned counsel for the appellant, the learned Public Prosecutor and perused the material made available on record.
10. The learned counsel for the appellant argued on similar lines as mentioned in the grounds of appeal. He relied on the judgments of the Hon'ble Apex Court in Tilak Raj Vs. State of Himachal Pradesh1, Vaddi Srinivasa Rao @ Sreenu and another Vs. Public Prosecutor, High Court of A.P., Hyderabad2, Surapathi Laxmana Rao Vs. State of A.P.3, M.Giriprasad and others Vs. K. Munikrishna Reddy and another4, Mylarapu Mallamma Vs. Mylarapu Saroja and other5, R. Sudhakar Reddy Vs. J.Govinda Reddy6.
11. The learned Public Prosecutor, on the other hand, supported the judgment of the trial Court and contended that the evidence of the victim P.W.2 was corroborated with the evidence of all other witnesses and the trial Court was justified in recording the conviction 1 (2016) 4 Supreme Court Cases 140 2 2005 (1) ALD (Crl.) 947 (AP) 3 2003 (2) ALD (Crl.) 355 (AP) 4 2014 (2) ALD (Crl.) 52 (AP) 5 2005 (4) ALD 24 6 2015 (2) ALD 531 Dr.GRR,J 6 CrlA.No.906 of 2012 and sentence against the accused for the offence under Section 417 IPC and prayed to dismiss the appeal.
12. On perusal of the evidence on record, P.W.1 is the complainant, mother of the victim woman. P.W.2 is the victim woman. P.W.3 is the house owner of the house at Vanasthalipuram where the P.W.2 and the accused lived as tenants as husband and wife. P.W.4 is the house owner at Amberpet where the P.W.2 and the accused lived together as husband and wife as tenants. P.W.5 is the S.I., who conducted part of the investigation. P.W.6 is the paternal uncle of the victim. P.W.7 is the S.I., who registered the FIR. P.W.8 is the ACP of Saroornagar Division, who filed the charge-sheet. P.W.9 is the Inspector of Police of Vanasthalipuram, who filed a memo before the court altering the Section of law from 420 IPC to Section 3(1)(xii) of SC/ST (POA) Act, 1989 and 417 IPC. P.W.10 is the MRO, Kandukur, who issued the caste certificate to P.W.2 that she belonged to SC.
13. Ex.P1 is the report given by the complainant. Ex.P2 is the caste certificate of P.W.2. Ex.P3 is the FIR. Ex.P4 is the proceedings issued by the Commissioner appointing P.W.8 as the Investigating Officer to conduct investigation in the case pertaining to SC/ST Act against the accused. Ex.P5 is the Memo filed before the Court for alteration of Section of law from 420 IPC to Section 3(1)(xii) of SC/ST Act and Section 417 IPC. Section 417 IPC is the punishment Dr.GRR,J 7 CrlA.No.906 of 2012 for cheating. Section 415 IPC describes the offence of cheating as follows:
"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 omit if he were not so deceived, and which act or 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."
14. In Surapathi Laxmana Rao (3rd supra) case, the learned single Judge held as follows:
"6....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 something 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., (2000) 3 SCC 693, 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 Dr.GRR,J 8 CrlA.No.906 of 2012 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 575, 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., AIR 1954 SC 724, 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."
15. In the light of the ingredients necessary to constitute an offence of the cheating under Section 415 IPC, the evidence of the witnesses need to be looked into. As the evidence of the victim woman is material to know the intention of the accused whether it was dishonest or not and whether she was deceived by the accused or not, her evidence is considered primarily.
16. P.W.2 stated that her marriage was performed with one Sheshu on 26.02.2002. It was an arranged marriage and due to disputes between her and her husband a panchayath was raised before the elders and they had obtained customary divorce. She left her daughter Dr.GRR,J 9 CrlA.No.906 of 2012 with her mother and came to Hyderabad in search of a job and got appointed as Home Guard and was posted in bomb difussal squad at Amberpet. She obtained a room in the house of one Narsimha at Amberpet and resided there. The accused also worked as a constable in the bomb difussal squad at Amberpet. The accused was her superior and developed acquaintance with her and she obliged him because he was her superior. The accused made marriage proposal and they started living together as wife and husband and informed the others as if they were wife and husband. Their conjugal life started in 2008 in the same house. She informed about the proposal made by the accused and also about their conjugal life to her mother. The accused made a promise that he would marry her and she believed his version and accepted him. Her mother informed the entire episode to her junior paternal uncle and requested him to enquire about the accused. Accordingly he caused enquiry and informed her mother that the accused had got wife and two children. Therefore, the accused was called to the house of her paternal uncle and they enquired him about his wife and children. The accused told her mother that his wife was suffering from mental illness and he would marry her by convincing his wife. Later the wife of accused committed suicide. Thereafter, the accused got the house at Amberpet vacated and shifted her to Vanasthalipuram and again started living at Vanasthalipuram without any troubles. The accused demanded Rs.3,00,000/- to marry her and he told that he was not ready to marry her without dowry. Since, her mother had no trust on the accused, Dr.GRR,J 10 CrlA.No.906 of 2012 they searched for another alliance and the accused having come to know about the alliance came to her and stated that he was ready to marry her and on that promise they got the alliance cancelled through her uncle. When she asked the accused for marriage, he informed her that he would marry her in April, 2010. Again the accused demanded Rs.3,00,000/- as she belonged to Mala community. He was not ready to marry her without dowry and stated that it would effect his reputation. She informed her mother about the demand of the accused. Her mother also asked the accused for marriage but he was not ready without dowry. She came to know that he married another woman in November, 2009. She came to know about the marriage through her colleagues and enquired the accused for which the accused did not give proper explanation and stated that he wanted to marry her as his second wife and promised that he would look after her. When her mother questioned the accused he did not give proper reply and challenged that they could not do anything in view of his employment in Police department. They felt insulted by the acts of the accused and approached the Police.
17. It was suggested to her in the cross examination that she obtained money from the accused and since the accused demanded money she foisted a false case, which was denied by her.
18. Thus, the evidence of P.W.2 would clearly disclose the deception played by the accused. He developed the acquaintance with the P.W.2, made marriage proposal to her and thereafter they started Dr.GRR,J 11 CrlA.No.906 of 2012 living together as husband and wife. She clearly stated that the accused made a promise that he would marry her and she believed his version and accepted him. He suppressed the fact of his having a wife and children and when P.W.2 came to know about it and enquired with him he stated that his wife was suffering from mental illness and he would marry her by convincing his wife. Though his wife died committing suicide, he had no intention to marry P.W.2 and demanded Rs.3,00,000/- to marry her. When the elders of P.W.2 looked for an alliance to her he got the alliance cancelled informing them that he was ready to marry her but failed to marry her and got married another woman in November, 2009. Her evidence further reveal that when P.W.2 questioned him about the same, the accused did not give proper explanation and still tried to continue his relationship with her stating that he wanted to marry her as his second wife and made false promises that he would look after her. All these would disclose that he had no intention to marry her from the beginning and made false promises to her and sexually exploited her and continued his relationship with her on false promises, which would clearly show his dishonest or fraudulent intention to deceive P.W.2 and to continue relationship with her on the false promise of marriage attracting the ingredients of Section 415 IPC Part-II. P.W.2 might not have continued her relationship with the accused had she not deceived by the accused on the promise of marriage by him. She discontinued her relationship with him an coming to know about the deception played by him.
Dr.GRR,J 12 CrlA.No.906 of 2012
19. The learned counsel for the appellant relied upon the judgment of the Hon'ble Apex Court in Tilak Raj (1 supra) wherein it was held that:
"the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It was admitted by the prosecutrix in her testimony that she was in a relationship with the appellant for last two years prior to incident and appellant used to stay overnight at her residence. After perusal of a copy of the FIR, testimony of prosecutrix and MLC report clearly indicates that the story of prosecutrix regarding sexual intercourse on false pretext of marrying her is concocted and not believable. In fact, the said act of the appellant seems to be consensual."
20. As per the facts of the above case, after the sexual contact some talk about the marriage had cropped up between the said two persons, as such it was said that consent had been given by the prosecutrix for sexual intercourse but no under some misconception of marriage. But the facts of the present case are distinguished from the facts of the above case. Each case should be decided basing on the facts of that particular case.
21. In the judgment of the High Court of A.P. in Surapathi Laxmana Rao (3 supra) relied upon by the learned counsel for the appellant, it was held that:
"prosecutrix consented to sexual intercourse because of her deep love for accused and not because of accused promising to marry her - no inducement - accused cannot be held guilty of cheating."
The acquittal of the accused under Secretion 417 IPC is also based upon the facts of the said case.
Dr.GRR,J 13 CrlA.No.906 of 2012
22. The Hon'ble Judge had referred to the case of the Hon'ble Apex Court in Uday Vs. State of Karnataka (2003 (1) ALD (Crl) 498 (SC), wherein it was held as follows:
"8.....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."
23. Thus, the Hon'ble Apex Court held that each case should be considered basing on the evidence before it and the surrounding circumstances before reaching to a conclusion basing on 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 Dr.GRR,J 14 CrlA.No.906 of 2012 must also weigh the evidence keeping in view the fact that the burden was on the prosecution.
24. The evidence of P.W.1, mother of the victim, corroborates with the evidence of P.W.2 the victim woman. She stated about her daughter informing her over phone about the promise of the accused that he wanted to marry her and on her enquiry her daughter revealed that the accused was a married man. She came to Hyderabad and enquired the accused as to how he could marry his daughter when he got a wife, the accused told them that his wife was suffering from mental illness, thereby he wanted to marry her. She informed the same to her brother-in-law, who was also working in the Police department and her brother-in-law enquired and told her that the accused had got wife and two children but the accused made her daughter to believe that he would marry her and he informed her that he would convince his wife and marry her daughter but in the meanwhile, wife of the accused died. When she and her daughter requested the accused for marriage, he postponed the same on the ground that his wife died very recently. When her brother-in-law brought alliance to her daughter, the accused approached her brother- in-law and informed that he intended to marry P.W.2 and requested him to cancel the alliance. Accordingly, they cancelled the said alliance.
25. Thus, the accused not only made P.W.2 to believe her that he would marry her inspite of having a wife and children but also made Dr.GRR,J 15 CrlA.No.906 of 2012 the mother of P.W.2 and the uncle of P.W.2 to believe that he would perform marriage with P.W.2 and made them to cancel the alliance brought to P.W.2. P.W.1 further stated that the accused demanded Rs.3,00,000/- as dowry and when they expressed their inability he married another lady and when they questioned him, he stated that they could do whatever they can and he was not ready for marriage with P.W.2. Thus, she stated about the manner in which the accused cheated P.W.2 and the various instances or events happened between them.
26. The paternal uncle of P.W.2 was examined as P.W.6 and he stated that he was a constable in Armed reserve. P.W.1 was his sister- in-law and P.W.2 was her daughter. They belonged to SC community. P.W.2 joined as home guard in Bomb diffusal squad at Amberpet during 2005 and he came to know through P.W.1, that the accused developed acquaintance with P.W.2 and informed her that he was a bachelor and promised her that he would marry her. Then he summoned the accused to the house of P.W.1 and enquired with him as to how he could marry P.W.2 since he was already married and got children. He got personal knowledge that the accused was a married man with wife and children as they both worked in the same office. The accused informed him that his wife was suffering from mental illness, as such, he would marry P.W.2. The wife of the accused came to know about his affair with P.W.2, thereby she committed suicide and died. Even after the death of his wife, accused told him and Dr.GRR,J 16 CrlA.No.906 of 2012 P.Ws.1 and 2 that since his wife already died he would marry P.W.2. The accused promised them that he would marry P.W.2 in 2010. But against his promise, he got married another lady in 2009 itself. P.W.6 also stated that during the life time of the wife of accused, he fixed another match to P.W.2 but the accused approached them and got the said match cancelled with a promise that he would marry P.W.2. When they questioned his acts, the accused demanded dowry of Rs.3,00,000/- to marry P.W.2. He stated that the accused induced P.W.2 and started living with her but subsequently refused to marry her. Thus, the evidence of P.Ws.1 and 6 corroborates with the evidence of P.W.2 on the sequence of events and proves the deception played by the accused in making continuous false promises to marry P.W.2, without any intention to marry her from the beginning. He finally married another woman but still continued to deceive P.W.2 making false promises that he would marry her as his second wife, which would show his dishonest intention of sexually exploiting her to his needs.
27. The evidence of P.Ws.3 and 4, the house owners of the houses at Vanasthalipuram and Amberpet wherein the P.W.2 and accused lived together would show that they lived as husband and wife by taking the portions of their house on rent. P.W.3 stated that he let out one portion on the ground floor to P.W.2 and the accused used to visit P.W.2 and declared before him that he was the husband of P.W.2.
Dr.GRR,J 17 CrlA.No.906 of 2012
28. P.W.4 stated that P.W.2 was his tenant for two years. She was working as Home guard and the husband of P.W.2 was also working as constable. The accused was the husband of P.W.2. Thus, the evidence of both these witnesses also corroborated with the evidence of P.W.2 that they lived together as husband and wife.
29. The other witnesses are official witnesses and they stated about the investigation conducted by them and the caste certificate issued in the official capacity.
30. Considering the evidence on record, the trial court rightly came to the conclusion that the offence was proved against the accused under Section 417 IPC and convicted him for the said offence. The sentence of six months simple imprisonment is also not on higher side for the offence proved against the accused.
31. The contention of the learned counsel for the appellant that P.W.2 failed to prove that she had divorce with her former husband and the customary divorce alleged by her was not in accordance with law and she suppressed the information to the accused that she was also having a child from her former husband, were not material facts to be considered in this case, as the prosecution for the offence of cheating is conducted against the accused but not against the victim. The prosecution is able to prove its case beyond all reasonable doubt against the accused for the offence under Section 417 IPC with which he was charged and rightly convicted him for the said offence. Hence, Dr.GRR,J 18 CrlA.No.906 of 2012 I do not find any illegality in the judgment of the conviction and sentence passed by the trial court to set aside the same.
32. The citations relied upon by the learned counsel for the appellant are not applicable to the facts of the case.
33. In the result, the appeal is dismissed confirming the conviction and sentence recorded against the appellant - accused vide judgment dated 28.08.2021 in S.C. No.63 of 2010 by the Special Sessions Judge-cum-Additional District and Sessions Judge, Ranga Reddy District for the offence under Section 417 IPC and the appellant - accused is directed to surrender before the trial court forthwith to serve the sentence of imprisonment passed against him. The bail bonds of the accused shall stand cancelled. If the appellant fails to surrender as ordered, the trial court is directed to issue non-bailable warrants against him and to take all consequential measures.
Miscellaneous applications, if any pending, shall stand closed.
_____________________ Dr. G. RADHA RANI, J January 07, 2022 LSK