Andhra Pradesh High Court - Amravati
Potnuru Appala Naidu, Vizianagaram ... vs P.P., Hyd on 6 January, 2023
Author: U.Durga Prasad Rao
Bench: U.Durga Prasad Rao
HON'BLE SRI JUSTICE U.DURGA PRASAD RAO
AND
HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO
CRIMINAL APPEAL No.1153 of 2014
JUDGMENT :(Per Hon'ble Sri Justice T.Mallikarjuna Rao)
1. Feeling aggrieved and dissatisfied with the impugned Judgment dated 30.09.2014, the accused in S.C.s & S.T.s Sessions Case No.1 of 2014 on the file of a Special Judge for the trial of cases under S.Cs. & S.T.s. (P.O.A.) Act-cum- Additional District & Sessions Judge Vizianagaram preferred this appeal.
2. The accused was tried for the offences punishable under Sections 417, 376 read with Section 90 of the Indian Penal Code, 1860 (for short, 'I.P.C.') and Section 3 (2) (v) of S.C.s & S.T.s (P.O.A.) Act.
3. The learned Special Judge, by Judgment dated 30.09.2014, convicted and sentenced the accused to undergo Rigorous Imprisonment for 7 years and to pay a fine of Rs.3,000/- in default to undergo Simple Imprisonment for 7 months, for the offence under Section 376 read with Section 90 of I.P.C ; sentenced to undergo Simple Imprisonment for 6 months for the offence under Section 417 of I.P.C and sentenced to un- -2- CRL.A.No.1153_2014 UDPR,J & TMR, J dergo Rigorous Imprisonment for life and to pay a fine of Rs.2,000/- in default to undergo Simple Imprisonment for one (1) month for the offence under Section 3 (2) (v) of S.Cs., & S.Ts., (P.O.A.) Act. It is further ordered that the sentences imposed for the offences shall run concurrently.
4. The brief facts of the prosecution case are that P.W.1 (name withheld to hide her identity), lodged a repot-Ex.P1 against the accused, stating that she works as a computer operator in the Resource Center, Lakkavarapukota. The accused also works as a computer operator in the Housing Department. Close acquaintance developed between them because of his frequent visits to her office. Due to that, they fell in love. They moved together closely. The accused, although married and having children, suppressed the fact and promised to marry her. She believed his version and had sexual relations with him several times. She became pregnant twice and had abortions at the request of the accused. When she questioned him about the marriage, he postponed it for some reason or another, saying that he would marry after getting a permanent job and later, after constructing the house; and later, by saying that he would convince his family members; and finally, he told her that his -3- CRL.A.No.1153_2014 UDPR,J & TMR, J wife disagrees on the ground that she is an SC-Madiga caste and he belongs to Dasari Community, and he refused to marry her. She approached P.W.7-Smt.Mariyamma, the Dalita Mahila Sakti Zilla Convener, and also placed the matter before P.W.6-Smt. Chandravathi, the Dalita Mahila President of S. Kota Mandal, who held a panchayat in which the accused admitted his guilt and requested that the matter be settled in terms of compensation. P.W.1 also brought it to the notice of P.W.3- Dr.Varalakshmi, the cousin of the accused. P.W.1 and her sister P.W.2-Vimala approached P.W.8-Smt.Sarada, the district committee member of Akhila Bharatha Prajatantra Mahila Sangham, Vizianagaram District, also held mediations, and the accused repeated the same version. P.W.8 took PW.1 to Srungavarapukota police station, where she lodged Ex.P1-report.
5. On a such report, the police registered as a case in Crime Number 213 of 2012 of Srungavarapukota P.S. under Sections 417, 376, and 312 of I.P.C. During the investigation; the Investigation Officer recorded the statements of witnesses, including prosecutrix. The Investigation Officer collected the medical evidence and other evidence. The accused was arrested. After completion of the investigation, a charge sheet was filed -4- CRL.A.No.1153_2014 UDPR,J & TMR, J against the accused for the offences punishable under sections 417, 376 of I.P.C., and section 3(1)(x) of SC/ST (P.O.A.) Act, 1989.
6. The case was taken on file by the Judicial Magistrate of First Class, S.Kota, as the offence under section 3 (2) (v) of the S.C.s & S.T.s (P.O.A.) Act is exclusively triable by the Sessions Court, committed the case as P.R.C. No.4 of 2013 to the Special Court. The Special Court for the trial of S.C.s & S.T.s cases framed charges against the accused under sections 417, 376 read with Section 90 I.P.C. and under Section 3 (2) (v) of S.C.s & S.T.s (P.O.A.) Act, read over and explained to the accused. The accused denied charges, so framed and claimed trial. Therefore, the case came to be tried.
7. The Prosecution examined P.Ws.1 to 13 to prove the case. It got marked Exs.P.1 to P.16. Ex D1 contradiction is elicited in the cross-examination of PW.1 on behalf of the defence. After completion of the prosecution evidence, the accused was examined under Section 313 Cr.P.C., regarding the incriminating and circumstantial material against the accused in the evidence of prosecution witnesses, which he denied. No evidence was -5- CRL.A.No.1153_2014 UDPR,J & TMR, J adduced on behalf of the defence. The defence version, as projected from the trend of cross-examination of the prosecution witnesses and the examination of the accused under section 313 of Cr.P.C., is innocence, a bare denial of the prosecution case and false implication.
8. After considering the necessary material available on record, the learned Sessions Judge found the accused guilty of the offences, convicted and sentenced as stated hereinbefore.
9. We have heard Sri T.M.K.Chaitanya, learned counsel for the Appellant and learned Public Prosecutor, appearing for the State/Respondent. We have perused the impugned Judgment and the evidence/material record.
10. The learned counsel for the Appellant assiduously urged that the trial court has failed to appreciate the facts of the case from an actual and correct perspective; the version of the prosecutrix is unbelievable, and the same is suffering from material inconsistencies; the discrepancies in the evidence of prosecutrix are incompatible with the credibility of her version; The Prosecution failed to establish that the Appellant established -6- CRL.A.No.1153_2014 UDPR,J & TMR, J physical intimacy with the prosecutrix on the false pretext of marriage.
11. Per contra, the learned Public Prosecutor submitted that the Prosecution had proved its case beyond a reasonable doubt by cogent, clinching and convincing evidence. No infirmity could be found in the evidence of prosecution witnesses. He sought to justify the impugned Judgment by the trial court on the ground that the same is well founded and is not vitiated in law; the accused is a married man; he concealed his marriage to the victim and as a result, the victim had sexual intercourse with the Appellant ; the consent to sexual intercourse given by the victim was vitiated by misconception under section 90 of I.P.C; the Appellant had no intention of actually marrying the victim; he made a false assurance that he would marry her only to indulge in sexual intercourse with her.
12. Now the point for determination is:
Whether the trial court is justified in holding that the Prosecution proved that the appellant/accused obtained the consent of the prosecutrix on the pretext of marriage under a misconception of fact, committed rape against her; committed a breach of promise with the dishonest intention; on the ground that she belongs to Scheduled Caste?-7-
CRL.A.No.1153_2014 UDPR,J & TMR, J POINT :
13. In a case under section 376 of I.P.C., the victim woman is the best witness, and her status is similar to an injured witness. Therefore, if the Court finds that the evidence of the victim inspires confidence as being trustworthy, cogent, believable and unblemished, and her evidence corroborates with the evidence of the medical officer who examined the victim during the investigation of the case and submitted a report, the Court generally does not seek any corroboration.
14. It is a case of cohabitation on the false promise of marriage. It is more difficult to have any eye witness on account of the incident except the victim herself because, at the time of cohabitation, both the victim and the accused unite secretly.
15. To decide the sustainability of the conviction under sections 376 and 417 of IPC, for better appreciation, it would be highly apposite and appropriate to refer to those sections herein below.
16. Section 375 of I.P.C. enumerates six circumstances wherein the sexual intercourse committed amounts to rape, which read as under:
375. Rape.--A man is said to commit "rape" who, -8- CRL.A.No.1153_2014 UDPR,J & TMR, J except in the case hereinafter excepted, has sexual intercourse with a woman under the circumstances falling under any of the six following descriptions:--
Firstly -- Against her will.
Secondly --Without her consent.
Thirdly -- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly --With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly -- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly -- With or without her consent, when she is under sixteen. Explanation.--Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
17. Section 90 of the Indian Penal Code says that if the consent had been given under a misconception of fact, such consent obtained cannot be construed as valid consent. Section 90 of I.P.C. reads as under:
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CRL.A.No.1153_2014 UDPR,J & TMR, J Consent known to be given under fear or misconception.--Consent is not such a consent as it is intended by any section of this Code if a person gives the consent under fear of injury or a misconception of fact.
Sec.417 of I.P.C. prescribes punishment for the offence of cheating as defined under Sec.415 IPC. Section 415 of I.P.C. reads thus:
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.
18. In Surapathi Laxmana Rao Vs. The state of A.P.1, wherein this Court held that:
Section 415 of I.P.C. 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 1 2003 (2) A.L.D. Criminal 355 -10- CRL.A.No.1153_2014 UDPR,J & TMR, J 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.
19. To appreciate the submissions of the learned counsel appearing for both parties, it will be proper to reproduce the salient portion of significant evidence of the prosecution witnesses. P.W.1 testified that she belongs to the S.C. Madiga Community, used to work as a computer operator in the Resource Center, and the accused also worked as a computer operator in the Housing Department. They both became acquainted with each other five years before the report. It is not the case of defence that the accused had no acquaintance with the prosecutrix. The suggestions to PW.1 in the cross-examination show that they had an acquaintance. It is elicited in the cross-examination of PW.1 that after she joined the job, she got acquainted with the accused in or about 2006. The accused used to reside at Prakasam Market, and he showed his house to her. Her house is nearer to the said house in a lane. After she got acquainted with the accused, he worked as a computer operator for one year.
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20. P.W.1 further testified that the accused proposed to marry her in the year 2006 or 2007. By that time, she was 24 years old and asked the accused to ask her parents. Then he told P.W.1 that their jobs were temporary and they could marry after getting a permanent job, and he promised to marry after getting a permanent job. They moved together and had sexual intercourse. She further deposed that, for the first time, they had sexual intercourse in 2007 at the house of accused's friend, Mahesh. She deposed that she also became pregnant twice, and the accused got her aborted, saying he wanted to procure children after marriage only. When she insisted the accused for marriage, he told her that he was constructing a house and would marry her after the construction of the house. She further deposed that her A.T.M. card is also with the accused, who used to draw money and spend her salary. When she again insisted on marriage, the accused told her that he would obtain permission from their parents. Later, the accused said to her that his parents did not agree to the marriage since she belongs to the S.C. community and he belongs to the B.C. community.
21. P.W.1 further deposed that she approached the Leader of Mahila Sangham of S.C-Cell of S.Kota, P.W.7-Smt. Mariyammma, who -12- CRL.A.No.1153_2014 UDPR,J & TMR, J took her to the cousin of the accused, i.e., P.W.3-Dr.Varalakshmi. PW.1 further testified that P.W.3 agreed to convince her parents and parents of the accused and perform their marriage, and then she made a phone call to her mother, who was not present; her sister, P.W.2-Smt.Vimala lifted the phone, came to the Hospital. Meanwhile, P.W.3-Dr.Varalakshmi left the Hospital by saying that she would come back after one hour, but she did not return, and she used to postpone the meeting.
22. In this regard, PW.7 deposed that she is a Dalit Mahila Leader of S.Kota; she does not know PW.1, the accused, or the facts of the case. It is suggested to PW.7 in the cross-examination that she stated before the police as in Ex.P6-Sec.161 Cr. P.C. statement, however she denied the same.
23. PW.3 also did not support the case of the Prosecution by deposing that she does not know PW.7-Mariyamma or PW.1; she does not know about the facts of the case; PW.3 admitted that the accused is her cousin.
24. P.W.1 further deposed that P.W.7 took her to Chandravathi, who is Dalitha Mahila President. The accused and P.W.6 came to the said meeting. The accused expressed his helplessness and left the -13- CRL.A.No.1153_2014 UDPR,J & TMR, J place. After that, she approached communist party leaders pw8- Saradha, and Ramana; they took her to the police station, where the police asked her to negotiate with the accused for two days and to report what happened; then a sitting was made by Mariyamma. P.W.1, P.W.8-Sarada, P.W.2-Vimala and Ramana made a sitting with the accused, his parents and lawyer Surya Demudu. The accused offered to give compensation to PW.1, but she did not agree to receive the same. She also gave a report later regarding money withdrawn by the accused by using her A.T.M Card.
25. According to the evidence of PW.2, the elder sister of PW.1, about two years back, PW.7-Mariyamma and PW.1 made a call to her; She went to the Hospital of Varalakshmi-PW.3; PW.7 informed her that PW.3 went outside, but she did not return. On the next date, PW.7 took PW.1 to the Chandravathi's house (PW.6). The accused and LW.6-H.Srinivasa Rao came there; informed them that if the accused married an S.C. Girl, their community people would not allow them; the accused and LW.6 left the meeting, asking them to do whatsoever. They approached C.P.M. Party leader Sarada (PW.8); she took them to the police station and PW.1 lodged a report.
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26. The Prosecution examined PW.4-B.Narayana Rao, PW.5-V.Ramesh Ram Babu, to establish the intimate relationship of PW.1 with the accused. However, they did not support the case of the Prosecution.
27. The Prosecution examined PW.6 to establish that she held a panchayath along with PW.7 and others to settle the disputes between PW.1 and the accused. But she also did not support the case of Prosecution.
28. PW.1 and PW.2 versions are not supported by PW.3, PW.6 and PW.7. The reading of the evidence of PW.2 shows that she did not have personal knowledge about a love affair between PW.1 and the accused till she was informed by PW.7 over the phone.
29. P.W.8 testified that P.Ws.1 and 2 approached her by saying that the accused cheated P.W.1 on the pretext of marriage. P.W.1 reported to the police in writing. P.W.8 further deposed that on the next day, Allu Srinivasa Rao and the accused came together to her house and stated that accused was married and had children; the family members would not allow P.W.1 to join him because of her caste and asked her to convince P.W.1 to receive compensation. P.W.8 further testified that the accused called her to the office of -15- CRL.A.No.1153_2014 UDPR,J & TMR, J Advocate, Surya Demudu of S.Kota, the accused along with elders came there. They also requested her to convince PW.1 to receive compensation, but she replied that she could not convince P.W.1.
30. P.W.11-S.I. of Police testified that on 25.10.2012 at about 11.00 PM, P.Ws.1 and 2 came to the police station, and P.W. 1 presented a report (Ex. P. 1), which was registered in Crime No.213 of 2022 under Sections 417, 376, and 312 IPC, and sent the original F.I.R. Ex.P10 to the JFCM S.Kota. The lodging of the report by PW.1 and registration of crime by PW.11 is not disputed.
31. The evidence of PW.13 Sri Syed Ishaq Ahmed, SDPO, shows that he took up investigation under the instructions of Superintendent of Police, Vizianagaram vide Ex.P12 proceedings. His evidence further shows that he proceeded along with PW.1 to the scene of the offences situated at Simhadri Layout, and slabbed house of Setti Satya Narayana, and Vizianagaram layout and prepared Ex.P13, Ex.P15 and Ex.P16 rough sketches is not disputed.
32. According to P.W.9, Civil Assistant Surgeon, she examined P.W.1 on 26.10.2012 but could not find signs of earlier abortions after such a long time. She opined that P.W.1 is habitual to sexual intercourse and issued Ex.P.7 wound certificate. The said evidence of PW.9 is not disputed.
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33. According to P.W.10-Dr.M.Hari, Civil Assistant Surgeon, he examined the accused on 09.01.2013, on requisition from S.I, S.Kota, and conducted a potency test to the accused and he issued Ex.P.8-certificate, stating that there is nothing suggestive of the accused is incapable of sexual intercourse. The said evidence of PW.10 is not disputed.
34. It is elicited in the cross examination of PW.1 that she studied M.Com, B.Ed. She studied B.Com from 1999 to 2002 at Government Engineering College, S.Kota. After 2002, she got completed training for one year in S.Kota. She joined as a computer operator in the M.E.O., office in June 2006 as an outsourcing employee, and she is the only educated person in her family. Her father died while she was studying fifth class. Her mother did a Vegetable business. In the cross-examination, it is elicited that she does not know whether the accused married Hemalatha in 2005. She admitted that Sulochana, her friend, used to go to Baptist Church. It is elicited in the cross- examination of PW.1 that she does not know whether her brother Deva Sahayam worked as a Maestri for the construction of the house by the accused at Dasari Colony. She added that once she was taken to the newly constructed house of the accused at -17- CRL.A.No.1153_2014 UDPR,J & TMR, J Dasari Colony, she did not find her brother working there. However, she stated that by the time of giving the Ex.P1 report, she did not know whether the accused was married and got two children. However, the recital in Ex.P1 report shows the accused wants to have some more time to marry her as his wife disagrees on the ground of her caste. It shows that by the time of lodging the report, PW.1 was aware that the accused was already married. She stated in her cross-examination that after lodging the report, a meeting was held and the accused revealed that he was convinced to marry her as a second wife. She also adds that the accused informed her before her lodging of report-Ex.P1 that he got married and got sons also. It is elicited in the cross- examination that she knows pretty well that marriage is difficult to perform in different castes, she knows that one should not have sexual intercourse with another person without marriage. She added that as the accused promised to marry, she obliged the accused and had sexual intercourse. She stated that she did not say before the police that the accused made a promise about the marriage. In the cross-examination, she denied the suggestion that she stated before the police as in Ex.D1 contradiction that the accused informed her in December, 2011 that he was married and -18- CRL.A.No.1153_2014 UDPR,J & TMR, J got children. It seems that when PW.1 pressurized the accused to marry her and started raising disputes, the accused revealed her marital status in December 2011. It is not suggested to PW.1 that he revealed his marital status to PW.1 even in the year 2007. Except for suggesting that only to grab the money, a false case is filed, and no effort is made to discredit the evidence of PW.1 in the chief examination. A reading of the evidence of PW.1 in cross- examination shows that her version in the chief examination is further strengthened. Having carefully analyzed the evidence of the victim, we find no ground to disbelieve the same because of the absence of independent witnesses. Her evidence is able to inspire confidence. There is no compelling reason to disbelieve the same. The totality of the circumstances appearing on the case record discloses that the prosecutrix does not have a strong motive to involve the accused falsely and no enmity is suggested or established. Further it is not suggested to PW.1 in the cross- examination specifically that the accused had no such relationship with her. The medical evidence also shows that she was habituated to sexual intercourse. Though the evidence of PW.1 that she got aborted twice is disputed in the cross- examination, we find no reason to doubt her testimony. -19-
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35. The evidence of PW.1 that she had sexual intercourse with the accused only on the assurance of marriage is not seriously disputed in the cross-examination. It is always a matter of evidence whether the consent was obtained willingly or consent has been obtained on a false promise that the accused never intended to fulfill. If the Court on facts, come to a conclusion that the consent has been obtained under misconception and the accused persuaded that he would marry her, then, it can always be said that such consent was not obtained voluntarily but under a misconception of fact and the accused right from the beginning never intended to fulfill the promise. What is voluntary consent and what is not voluntary consent depends on the facts of each case.
36. The learned counsel for the Appellant relied on the decision of the Supreme Court in Uday Vs. State of Karnataka2, wherein it held that:
In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the Appellant. She was aware of the fact that since they belonged to different castes, marriage was not possible. In any event, the proposal for their marriage was bound to be seriously opposed by their family 2 2003 Criminal Law Journal 1539 -20- CRL.A.No.1153_2014 UDPR,J & TMR, J members. She admits having told so to the Appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the Act she was consenting to.
She kept it a secret for as long as she could. Despite this, she did not resist the overtures of the Appellant and, in fact, succumbed to them. She thus freely exercised the choice between resistance and assent. She must have known the Act's consequences, particularly when she was conscious that their marriage might not take place at all because of caste considerations. All these circumstances lead us to conclude that she freely, voluntarily, and consciously consented to have sexual intercourse with the Appellant. Her consent was not in consequence of any misconception of fact.
It will also be relevant to refer to the observation that there was no evidence to prove the Appellant never intended to marry her.
37. In the instant case, the victim was aged about 24 years, and she was conscious that her marriage was difficult because of her caste. The evidence of PW.1 shows that she believed the words of PW.1 and had sexual intercourse with him. It reflects -21- CRL.A.No.1153_2014 UDPR,J & TMR, J in the present case, there was no evidence to prove that the accused intended to marry the prosecutrix.
38. The issue raised in this case is squarely covered by the decision of Hon'ble Supreme Court in the case of Pramod Surajbhan Pawar Vs. State of Maharashtra and Anr3, wherein it held that:
The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said Act. In Deepak Gulati, this Court observed:
"21. ... There is a distinction between the mere breach of a promise and not fulfilling a false promise. Thus, the Court must examine whether there was made, at an early stage, a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence.
There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.--
3 Manu/SC/1142/2019 : (2019) 9 SCC 608 -22- CRL.A.No.1153_2014 UDPR,J & TMR, J
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at the initial stage itself, the accused had no intention whatsoever of keeping his promise to marry the victim. There may, of course, be circumstances when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to the misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance".
39. Reverting to the facts of this case; the evidence of PW.1 shows that for the first time, they had sexual intercourse in the year 2007. As seen from the suggestions put to PW.1 in the cross- examination that the marriage of the accused with one Hemalatha held in the year 2005, the accused was blessed with a son in the year 2007; he performed a Barasala function. In the facts of the case, it is difficult to believe that the accused developed intimacy with PW.1 with an intention to marry her. No material is placed to suggest that the false promise of marriage had no nexus to the consent of the prosecutrix for having sexual intercourse with the Appellant. As already indicated, the accused -23- CRL.A.No.1153_2014 UDPR,J & TMR, J was a married man. He concealed his marriage to the victim, and as a result, she developed intimacy with the accused. It was apparent from the conduct of the Appellant that he only wanted to indulge in sexual intercourse with the victim, and he had no intention of actually marrying the victim. The victim, in her cross-examination, affirmed that the Appellant obtained her consent on the pretext of marriage. There is no evidence at all that they were in deep love; the evidence on record indicates that the Appellant obtained her consent to gratify his lust, knowing it fully well that he would never marry her. The conduct of the Appellant has proved that even though he had no intention to marry her, being already married and blessed with a son, he kept the promise of marriage alive to obtain her consent for having sexual intercourse. His intention was thus really malafide. Clearly, in this case, the whole conduct of the Appellant irresistibly led us to conclude that he never wanted to marry the victim because he was already married and had a son from his marriage; he concealed these facts. One also must be mindful of the fact that the victim would not have consented to sexual intercourse with him had she not been deceived by the Appellant with the false promise of marriage.
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40. The learned counsel for the Appellant relied on a decision Maheswari Tigga Vs. The state of Jharkhand4, wherein the Apex Court held that ;
"14.......But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the Appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest".
The facts of the said case can be distinguishable for the following reasons. In the said case, the marriage between them could not be solemnized because they belong to different religions. She was, therefore, conscious of the obstacle all along, even while she continued to establish physical relations with the Appellant. It is to be borne in mind, it is not the case of the Appellant herein that PW.1 continued a physical relationship with him even after knowing about his previous marriage and having two children. The evidence of PW.1 is clear as to why she waited for such a long time. The accused/Appellant, on one pretext or another, postponed marrying her. She believed the said version without making any enquiries about the correctness of the version.
41. The learned counsel for the Appellant relied on a decision 4 (2020) 10 SCC 108 -25- CRL.A.No.1153_2014 UDPR,J & TMR, J Shivashankar Alias Shiva Vs. The state of Karnataka and another5. Wherein it observed that ;
4......."It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as rape especially in the face of the complainant's own allegation that they lived together as man and wife".
The facts can be distinguished as in this case, it is not the victim's case that they lived together as a man and wife and she has been treating the Appellant as her husband for the past four years.
42. The learned counsel for the Appellant relied on a decision Kaini Rajan Vs. The state of Kerala6 wherein the Apex Court observed that ;
"the conviction relates to the first incident which is treated as rape, believing the prosecution version that it was forcible and without the consent of the prosecutrix. The said version of the Prosecution is disbelieved on the ground that the offence occurred at 08.30 am and the place of the alleged incident was on the side of the public road, if she had made any semblance of resistence or made any hue and cry it would have attracted large number of people from the locality".
The facts of the present case are entirely different and can be distinguished as it is not the case of the prosecutrix that the accused committed rape on her without her consent and she had 5 (2019) 18 Supreme Court Cases 204 6 (2013) 9 SCC 113 -26- CRL.A.No.1153_2014 UDPR,J & TMR, J shown any semblance of resistance, made hue and cry.
43. The learned counsel for the Appellant relied on a decision K.P.Thimmappa Gowda Vs the state of Karnataka7, wherein it held that ;
"In the said case victim admitted in her cross- examination that she had sexual intercourse with the Appellant nearly 100 times and it shows that she was a consenting party and she lodged a complaint just a few days before the birth of the child and there was a delay of over eight months in filing the complaint.
"Further, the appellant has stated in affidavit that he has agreed to transfer of three acres of land due to breach of promise to marry the victim and she has given her consent to accept the same".
Adverting to the facts of the case, though the victim had continued a sexual relationship with the accused for a continuous period of four years, she complained without much delay immediately after knowing about the previous marriage of the accused, and he has no intention to marry her.
44. The learned Public Prosecutor relied on a decision the State of Uttara Pradesh Vs. Naushad8, wherein it observed that.
"He brazenly raped her for two years or more giving her the 7 (2011) 14 SCC 475 8 (2013) 16 SCC 651 -27- CRL.A.No.1153_2014 UDPR,J & TMR, J false assurance that he would marry her, and as a consequence she became pregnant. For the reasons stated supra, we have to uphold the Judgment and order of the trial court in convicting and sentencing the accused for the offence of rape, by reversing the Judgment and order of the High Court".
It further held that "A woman's body is not a man's plaything and he cannot take advantage of it in order to satisfy his lust and desires by fooling a woman into consenting to sexual intercourse simply because he was to indulge in it. The accused in this case has committed the vile Act of rape and deserves to be suitably punished for it".
45. It would be useful to note at this juncture, the decision in Anurag Soni Vs. State of Chattisgarh9, wherein the Hon'ble Apex Court held that:
"14..... Considering the aforesaid facts and circumstances of the case and the evidence on record, the Prosecution has been successful in proving the case that from the very beginning, the accused never intended to marry the prosecutrix; he gave false promises/promises to the prosecutrix to marry her and on a such false promise he had physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on the misconception of fact as per Section 90 of the I.P.C. Such consent shall not excuse the accused from the charge of rape and offence under Section 375 of the I.P.C.
9 (2019) 13 S.C.C. 1 -28- CRL.A.No.1153_2014 UDPR,J & TMR, J
46. The intention of the accused, as per the testimony of PW.1, right from the beginning, was not honest, and he kept on promising that he would marry her. We have absolutely no scintilla of hesitation to hold that this kind of consent cannot be said to be any consent because she was under the misconception of the fact that the accused intended to marry her; therefore, she had submitted to sexual intercourse with him.
47. It seems that the accused had given the impression that he would honour his promise to marry her; As such, the fact was not disclosed by her to anybody, including her mother. Once it was found that the accused had no intention to honour his promise, the prosecutrix reported the matter to her sister through PW.7, which ultimately led to the filing of the criminal case against the accused person. Admittedly, the Appellant has married another woman even before developing his intimacy with PW.1.
48. The evidence of PW.2 and PW.8 corroborates with the evidence of PW.1 and the sequence of evidence and proves the deception played by the accused in making continuous false promises to marry PW.1 without any intention to marry her from the beginning.
49. The Prosecution has successfully proved by adducing cogent -29- CRL.A.No.1153_2014 UDPR,J & TMR, J evidence that from the very inception, the accused had acted malafide; he never intended to marry the victim and has not tried to explain his stand even during Sec.313 Cr. P.C. examination.
50. On over all consideration of the factual scenario, we are satisfied that the consent which had been obtained by the accused was not a voluntary one, which the victim under the misconception of the fact that the accused would marry her, accorded consent which is not a consent in the eye of law. He developed a sexual relationship with the victim in the year 2007, and by that time, his marriage was already held, and it is not the case of the appellant that he informed about his marriage with the victim during the year 2007, despite knowing the said fact, she developed intimacy with him.
51. It transpires from the record that the prosecutrix otherwise would not have surrendered but for the false promise of marriage given by the accused. The result of the discussion is that from the very beginning, the accused had dishonest and fraudulent intention to exploit the prosecutrix sexually and from the very inception of the making promise, the accused did not entertain the intention of marrying the prosecutrix and the promise to marry the prosecutrix was a mere hoax. The trial court discussed all facts of the matter in lucid and eloquent manner and came to a right -30- CRL.A.No.1153_2014 UDPR,J & TMR, J conclusion.
52. Having regard to the ratio of Judgments cited supra, and applying the same to the evidence and the facts and circumstances of the case, we are of the considered opinion that the findings of the Trial court with regard to the guilt of the accused for the offences under section 376 and 417 of I.P.C is well founded.
53. To prove the charge under section 3(2)(v) of SC/ ST (POA) Act, the prosecution examined PW.13-S.D.P.O, who testified that on 13.02.2013, he addressed a letter to Tahsildar, S Kota Mandal with a request to furnish the caste certificates of P.W.1 and the accused. On 27.02.2013, he received Ex.P.9-Proceedings from Tahsildar about the caste certificates of P.W.1 and the accused.
54. The evidence of PW.1 coupled with Ex.P9 proceedings shows that Mandal Revenue Inspector, S.Kota, has enquired and reported that PW.1 belongs to Madiga SC Community and the Appellant belongs to Dasari Backward class. The defence does not dispute said fact. It is evident from the record the offence in question took place prior to 25.10.2012. The issue raised in this case squarely covered by the decision in Patan Jamal Vali Vs. The State of Andhra Pradesh10, wherein the Apex Court held that:
10 2021 (2) A.L.T. (CRI.) (SC) 266 (D.B.) -31- CRL.A.No.1153_2014 UDPR,J & TMR, J "59....It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled castes and the Scheduled tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26 January 2016. The words "on the ground of" under Section 3(2)(v) have been substituted with "knowing that such person is a member of a Scheduled caste or Scheduled tribe. This has decreased the threshold of proving that a crime was committed based on caste identity to a threshold where mere knowledge is sufficient to sustain a conviction.
Section 8, which deals with presumptions as to offences, was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise".
"61. However, since Section 3(2)(v) was amended and Clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26 January 2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31 March 2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such person is a member of a S.C. or S.T. the conviction Section 3(2)(v) would consequently have to be set aside".
55. In the light of above principle of law, it is clear that knowing victim is a member of scheduled caste is not sufficient to -32- CRL.A.No.1153_2014 UDPR,J & TMR, J convict the accused as the offence in question in the instant case took place prior to 25.10.2012, whereas the amendment came into force with effect from 20.01.2016.
56. Section 3(2)(v) of the Act provides that whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, commits any offence under the Indian Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine. In the ultimate analysis, we are of view that there is no evidence at all to the effect that the Appellant committed the offence alleged on the ground that the deceased is a member of a Scheduled Caste or a Scheduled Tribe. To attract the provisons of Section 3(2)(v) of the Act, the sine qua non is that the victim should be a person who belongs to a Scheduled Caste or a Scheduled Tribe and that the offence under the Indian Penal Code is committed against her on the ground that such person belongs to a Scheduled Caste or Scheduled Tribe.
57. We are of the view that the mere fact that the victim happened to be a girl belonging to a scheduled caste does not attract the -33- CRL.A.No.1153_2014 UDPR,J & TMR, J provisions of the Act. In the absence of such ingredients, no offence under Section 3(2)(v) of the Act arises. As such, the conviction for the aforesaid offence recorded by the trial court is liable to be set aside.
58. Accordingly, we hold that the Prosecution has established the guilt of accused beyond reasonable doubt for the offence punishable under Sections 417 and 376 IPC ; we find that the learned trial Court has rightly convicted and sentenced the accused-appellant, and there is no infirmity in the impugned Judgment and order passed by the learned trial Court. However, upon re-appreciation of the entire Prosecution's case, we are of the view that the conviction and sentence passed by the trial court for the offence under Section 3 (2) (v) of S.C.s & S.T.s (P.O.A.) Act is liable to be set aside.
59. As a result, the Criminal Appeal is allowed in part. The conviction and sentence recorded against the accused in SC.No.1 of 2014 on the file of a Special Judge for the trial of cases under S.Cs. & S.T.s. (P.O.A.) Act-cum-Additional District & Sessions Judge Vizianagaram, vide judgment dated 30.09.2014, for the offences punishable under Section 376 read with Section 90 of IPC and Section 417 IPC are hereby -34- CRL.A.No.1153_2014 UDPR,J & TMR, J confirmed. However, the conviction and sentence recorded against the appellant/ accused for the offence under Section 3(2)(v) of S.C.s & S.T.s (P.O.A.) Act, are hereby set aside and he is acquitted of the said offence.
60. The appellant/accused shall surrender before the trial court within one month from this date to serve the sentence, in default of which the trial court shall take appropriate steps against the appellant/accused for the execution of the sentence in accordance with the law.
61. The Appellant shall get the benefit of set-off in terms of Section 428 Cr.P.C., out of a period of imprisonment already undergone.
62. Registry shall transmit copy of this judgment along with Lower Court record to Trial Court forthwith.
63. Consequently, miscellaneous applications, if any, in this appeal shall stand closed.
______________________________ Justice U.Durga Prasad Rao _____________________________ Justice T.Mallikarjuna Rao Date : 06 .01.2023.
BV/SAK/KGM -35- CRL.A.No.1153_2014 UDPR,J & TMR, J HON'BLE SRI JUSTICE U.DURGA PRASAD RAO AND HON'BLE SRI JUSTICE T.MALLIKARJUNA RAO CRIMINAL APPEAL No.1153 of 2014 BV/SAK/KGM