Telangana High Court
Gummala Santhosh, Khammam Dt., vs The State Of Telangana, Rep Pp., on 6 September, 2022
Author: G. Radha Rani
Bench: G. Radha Rani
THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No.59 OF 2016
ORDER:
This criminal revision case is filed by the petitioner-accused assailing the judgment of the Special Sessions Judge for Trial of Cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SC & ST (POA) Act'), at Khammam in SC No.2 of 2015 dated 18.11.2015.
2. The case of the prosecution in brief was that the accused was a resident of Bhadrachalam and he belonged to Perika community. The complainant belonged to Scheduled Caste and she was also a resident of Bhadrachalam. The accused got acquainted with the complainant and developed intimacy with her. He lured the complainant with deceitful words under the guise of love and marriage and obtained her consent and had sexual intercourse with her in his house in the absence of inmates. He continued the physical intimacy with the complainant for two years. When the neighbours witnessed the same and questioned the accused and the complainant about their closeness, both the complainant and the accused informed them that they were in love and going to marry. But, whenever the complainant raised the topic about marriage, the Dr.GRR,J 2 Crl.R.C. No.59 of 2016 accused postponed the same on one reason or the other and subsequently, avoided to talk with her and to meet her. Two months prior to the date of her lodging the report, the complainant came to know that the parents of the accused were making preparations for his marriage with another girl and tried to contact the accused over phone. He switched off his phone. Then the complainant realized that she was cheated by the accused and attempted to commit suicide by taking sleeping pills. On seeing the same, her neighbour prevented her from taking the tablets, consoled her and informed the said incident to the sisters of the complainant. The sisters of the complainant approached the parents of the accused and requested for marriage. But, the parents of the accused asked them to go away stating that they did not know who the complainant was. On 13.06.2014, the complainant confronted the accused about the promise made to her. The accused denied to marry her citing the reason that she belonged to Scheduled Caste and humiliated her. As such, the complainant approached the police and lodged the report. The same was registered as Crime No.166 of 2014 for the offences under Sections 417, 420 IPC read and Sections 3 (1) (x) and 3 (1) (xii) of the SC & ST (POA) Act. As per the proceedings of the Superintendent of Police, Khammam, the SDPO, Manugur took up investigation, visited the scene of Dr.GRR,J 3 Crl.R.C. No.59 of 2016 offence, examined the witnesses and sent the complainant for medical examination to Bhadrachalam, collected the caste certificates of the complainant and the accused, arrested the accused and sent him to Government Hospital, Bhadrachalam for potency test and produced him before the Court. After completing the investigation, the police filed charge sheet against the accused.
3. The case was taken on file by the Judicial Magistrate of First Class, Bhadarchalam, numbered the same as PRC 53 of 2014 and after furnishing the documents to the accused, committed the case to the Special Sessions Court for trial of SC and ST (POA) Cases.
4. The Special Sessions Court framed charges against the accused for the offences under Sections 415 read with 417 IPC and Section 3 (1) (x) and (xii) of the SC & ST (POA) Act, 1989. The accused pleaded not guilty. During the course of trial, the prosecution examined PWs.1 to 10 and got marked Exs.P1 to P9. No defence evidence was adduced by the accused, but a contradiction in the statement of PW.2 under Section 161 Cr.P.C. was marked as Ex.B1.
5. On considering the oral and documentary evidence on record, the Sessions Court found the accused not guilty for the offences under Dr.GRR,J 4 Crl.R.C. No.59 of 2016 Section 3(1) (x) and (xii) of the SC & ST (POA) Act and acquitted him for the said offence, but found him guilty for the offence under Section 417 IPC and convicted him to rigorous imprisonment for a period of six months and fine of Rs.500/- in default of payment of fine, to suffer simple imprisonment for a period of (15) days.
6. Aggrieved by the said conviction and sentence inflicted by the Special Sessions Judge for trial of Cases under SC and ST (POA) Act, the accused filed this revision, contending that the ingredients to constitute the offence under Section 417 IPC, were not made out. The trial court erred in relying on the testimonies of the interested witnesses i.e. PWs.1 to 10. The learned Judge failed to see that the victim girl participated in sexual intercourse with the accused with her consent. There was an abnormal delay in giving Ex.P.1 complaint to the police and prayed to set aside the judgment of the Sessions Court in SC No.2 of 2015.
7. Heard the learned counsel for the petitioner and the learned Public Prosecutor.
8. Now the point for consideration is:
Whether there is any infirmity in the judgment of the Sessions Court in finding the accused guilty for the Dr.GRR,J 5 Crl.R.C. No.59 of 2016 offence under Section 417 IPC and convicting him for the same as above?
9. The learned Sessions Judge, on considering the evidence of the prosecution witnesses, observed that there was no material on record that the accused intentionally insulted or intimidated PW.1 in the name of caste or that he was in a dominant position to influence PW.1 to obtain her consent for sexual intercourse, but it was a case of promise to marry the complainant under the guise of love and had sex with her, and found the accused not guilty for the offence under Section 3(1)(x) and 3 (1) (xii) of the SC and ST (POA) Act. But, however, considering the evidence of PW.1 and that nothing was elicited in her cross-examination that she had got any ill intention against the accused to speak falsely against him and normally no woman would come and openly say that a particular person had sex with her and the evidence of PW.2 also corroborated with the evidence of PW.1 that they enquired with PW.1 and accused about their love affair and the accused informed her that he wanted to marry PW.1 after convincing his parents and the evidence of PW.3, the sister of PW.1 wherein she stated that after knowing the information about consuming tablets by PW.1, she came there along with her other sisters and approached the parents of the accused, believed the evidence of the witnesses with regard to the offense under Section 417 IPC. The trial court Dr.GRR,J 6 Crl.R.C. No.59 of 2016 specifically noted that the evidence of PW.1 established that the accused had love affair with her and promised to marry her and she stated that many a times the accused had sex with her in the house of accused in the absence of inmates and also in her house but later refused to marry her, as such, considered that the accused deceived PW.1 and there was a fraudulent intention on the part of the accused at the time of making promise, as he very well knew that PW.1 belonged to Scheduled Caste and he belonged to Perika community and deceived her.
10. The learned counsel for the revision petitioner relied upon a judgment of the High Court of Bombay in Kashinath Narayan Gharat v. State of Maharashtra1, the facts of which were also similar to the present case, wherein as per para-6 of the said judgment it would reveal that:
"6. The evidence of PW1- Prosecutrix reveals that the accused was known to her. She had sexual relationship with the accused for over about 3 years. Evidence of PW2- sister of the prosecutrix also reveals that there was love affair between the accused and the prosecutrix. The evidence on record thus indicates that sexual relationship between the prosecutrix and the accused was consensual. The accused has been held guilty of offence under Section 417 of the IPC solely for the reason that he refused to marry the prosecutrix. The question is whether in such circumstances refusal to marry constitutes an offence of cheating".
Considering the judgments of the Hon'ble Apex Court in Sonu @ Subhash Kumar v. State of Uttar Pradesh and another [2021 1 2022 (1) Crl.CC 15 Dr.GRR,J 7 Crl.R.C. No.59 of 2016 SCC Online SC 181] and Maheshwar Tigga v. State of Jharkhand [(2020) 10 SCC 108] held that:
"9. In the instant case, the evidence on record indicates that the prosecutrix and the accused were known to each other. They had indulged in sexual relationship for a period of over three years. The evidence of PW1-prosecutrix does not indicate that she had sexual relationship with the accused under misconception of fact, with regard to the promise of marriage or that her consent was based on fraudulent misrepresentation of marriage. There is no evidence on record to indicate that since the inception accused did not intend to marry her. In the absence of evidence to prove that the prosecutrix had consented for physical relationship on a misconception of fact, as stipulated under Section 90 of IPC, the mere refusal to marry would not constitute offence under Section 417 of the IPC."
11. The Hon'ble Apex Court in the above cases, considered its earlier judgment in Pramod Suryabhan Pawar v. State of Maharashtra [(2019) 9 SCC 608], wherein it was observed that:
"Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent".
On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it..."
12. The Hon'ble Apex Court extracted judgment in Uday v. State of Karnataka [(2003) 4 SCC 46], which is as under:
"21. It therefore appears that 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 Dr.GRR,J 8 Crl.R.C. No.59 of 2016 Code. We are inclined to agree with this view, but we must add that 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."
In Maheshwar Tigga v. State of Jharkhand and held that:
"20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love."
13. As seen from the facts of this case, the complainant had continued physical relationship with the accused for a period of two years. The evidence on record would indicate that the sexual relationship between the complainant and the accused was consensual. The Hon'be Apex Court held in the above cases that each case depends on its own peculiar facts and have a bearing on the question whether the consent was voluntary or was given under mis-conception of fact and had to weigh the evidence. As the trial court had an opportunity to examine the evidence of the witnesses in detail and by placing reliance upon the judgment of the Hon'ble Apex Dr.GRR,J 9 Crl.R.C. No.59 of 2016 court in Karthi @ Karthik v. State, represented by Inspector of Police, Tamilnadu (Crl.A. No.601 of 2008) and of the High Court of A.P. in Badi Chinna Rao v. State of A.P. [2003 (2) ALD Crl. 622] held that the evidence of PW.1 established the offence under Section 417 IPC and that there was a fraudulent intention on the part of the accused at the time of making promise as the accused very well knew that they belonged to different castes, but continued his relationship with her and when the complainant raised the topic of marriage, refused to marry her in the name of caste, convicted the accused.
14. This court in the revision does not have the opportunity to examine the evidence of the witnesses in detail and could only see that whether the court had applied the law in accordance to the facts of the case. As the Sessions Court applied the law considering the facts of the case and found the accused guilty for the offence under Section 417 IPC, it is considered that there is no infirmity in the judgment of the trial court in this regard. The sentence awarded by the trial court is also considered appropriate to the facts of the case. Hence, it is considered fit to dismiss the revision confirming the conviction and sentence awarded by the trial court.
Dr.GRR,J 10 Crl.R.C. No.59 of 2016
15. In the result, the Criminal Revision Case is dismissed confirming the conviction and sentence passed by the Special Sessions Judge for trial of cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Khammam in SC No.2 of 2015 dated 18.11.2015. The bail granted to the petitioner-accused shall stand cancelled. The petitioner-accused is directed to surrender before the court below forthwith and in case he fails to do so, the court below is directed to take steps in accordance with law to take him into custody.
Pending miscellaneous petitions, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J September 06, 2022 KTL