Andhra HC (Pre-Telangana)
Unknown vs The State Of Telangana Rep. By The Public ... on 7 November, 2014
Author: B.Siva Sankara Rao
Bench: B.Siva Sankara Rao
HONOURABLE Dr. JUSTICE B.SIVA SANKARA RAO
Crl.RC No.1818 of 2014
07-11-2014
Bhumpaka Praveen Kumar...Revision Petitioner
The State of Telangana Rep. by the Public Prosecutor, High Court at
Hyderabad...Respondent
Counsel for Appellant: Sri M.Achutha Reddy
Counsel for Respondent : Public Prosecutor
<GIST:
>HEAD NOTE:
? Cases referred
1. 2014 (1) ALD Crl 634 (SC)
2. 2003 (2) ALD Crl 355 (AP)
3. 2003 (1) ALD Crl 498 (SC)
4. (2000) 3 SCC 693
5. AIR 1956 SC 575
6. AIR 1954 SC 724
7. 2005 (1) ALD Crl 65 (SC)
8. (2000) 7 SCC 224
9. 2013 (3) ALT (Crl) 339 SC
10. 2007 (1) ALT (Crl) 61 (SC)
11. 2008 (2) ALT (Crl) 445 (SC)
THE HONOURABLE Dr.JUSTICE B.SIVA SANKARA RAO
CRIMINAL REVISION CASE No.1818 of 2014
ORDER:
This Criminal Revision Case is filed under Sections 397 (2) and 401 Cr.P.C, by the petitioner/ accused of C.C No.30 of 2011 on the file of the Judicial First Class Magistrate, Bodhan, Nizamabad District.
2. Heard the Learned Counsel for the Petitioner, the Learned Additional Public Prosecutor for the Respondent-State and perused the material placed on record.
3. It is in fact the police filed charge sheet dated 29.01.2011 after completion of investigation against the accused from the report of the victim/ de facto complainant based on the crime registered as FIR No.106 of 2010 dated 04.05.2010 for the offences under Sections 420 and 493 IPC, from the averments that there was a love affair between the de facto complainant and petitioner/ accused since 1st year intermediate in Vijetha Junior College, Bodhan from the year 2006. He promised to the de facto complainant to marry her alone and none else, there from both decided to marry and they also went for Mancherial and stayed for three days and the accused was also asked the parents of the victim to give consent for marrying her. However in saying he has contacted his parents for performing the marriage with the victim for which they rejected and there from to avoid delay, both decided to go somewhere and get marriage. Accordingly on 14.03.2010 they went to temple of goddess Durga at Ramakrishna Beach, Visakhapatnam and got married from the accused tied the tali around neck of the victim in so declaring and thereafter they stayed in a rented room as husband and wife and joined to work in cell point at Visakhapatnam and stayed there for 1 month and lead conjugal life, that later they came back and taken a rented premises at Indrapur near to the house of her sister and brother-in-law where he stated that he would met his parents for convincing them and return back. However he failed to return and for her telephone calls replied stating that as if he does not know her and never married her. Under the guise of love affair and pretence of marriage he deceived her and enjoyed her sexually. Therefrom she lodged report with police to take action and it is pursuant to it the crime was registered and investigated and the final report was filed against the accused in the form of Charge sheet under Section 173 Cr.P.C for the offences under Sections 420 and 493 IPC and the same was taken cognizance by the learned Magistrate. It is after appearance of the accused and after hearing the prosecution and the accused while framing charges, the learned Magistrate passed the impugned order dated 05.08.2014 by accepting the prosecution contention through the learned public prosecutor that the offence attracts the definition of clause 4 of Section 375 IPC by virtue of the so called consent obtained by deceiving and misrepresenting the victim which is not a consent in the eye of law under Section 90 of IPC to say the said offence is punishable under Section 376 IPC and not mere Section 420 IPC and also by placing reliance on the expression of the Apex Court in State of UP vs. Naushad . Thereby as the offence under Section 376 IPC is triable by Court of Sessions, passed the impugned order for committing the case under Section 209 Cr.P.C.
4. In fact Section 323 Cr.P.C enables the Magistrate to so to do. Section 323 Cr.P.C reads as follows:
323. Proceedure when, after commencement of inquiry or trial, Magistrate finds case should be committed: If, in any inquiry into an offence or a trial before a Magistrate, it appears to him at any stage of the proceedings before signing the judgment that the case is one which ought to be tried by the Court of Session, he shall commit it to that Court under the provisions herein before contained [and thereupon the provisions of Chapter XVIII shall apply to the commitment so made].
5 (a). Counsel for the revision petitioner/ accused in impugning said order of the Magistrate contends from the revision grounds that the order is erroneous outcome without proper appreciation of the material on record including the statements of the witnesses from out of the entire prosecution material and the learned Magistrate has gravely erred in holding the alleged occurrence attracts clause 4 of Section 375 IPC to constitute the offence under Section 376 IPC, even there is another penal provision under which the accused was charged and cognizance taken for the offence under Section 493 IPC i.e., triable by Magistrate apart from the alleged offence under Section 420 IPC, the ratio laid down in the above expression has no application to the present case. Hence to set aside the same.
5 (b). Whereas, it is the contention of the learned public prosecutor that the learned Magistrate is right in his observation also within scope of Section 323 Cr.P.C and in passing the order in committing the case to the Court of Sessions under Section 209 Cr.P.C, that there is no illegality or impropriety that for this Court while sitting in revision against the impugned order, there is nothing to interfere and hence to dismiss the revision. Perused the material on record.
6. Now the points that arise for consideration is
1). Whether the impugned order of the learned Magistrate of the case requires trial by Court of Sessions for offence under Section 376 IPC also attracts, is untenable and it requires interference by this Court and if so with what observations by sitting in revision?
2). What result?
7.Point No.1:
The facts supra available from the impugned order of the Magistrate filed by the revision petitioner does not require repetition. 7 (a). Section 90 IPC reads as follows:
Consent known to be given under fear or misconception: that a consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane persons: if the consent is given by a person, who from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent or Consent of child: unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
Section 375 IPC reads that:
A man is said to commit rape who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
1) ============= 2) ============= 3) ============= 4) 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.
5) ============= 6) =============
The exception provided no doubt in Section 375 speaks sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
8. Here it is important to say, it is not the case of the accused that at Visakhapatnam in the temple of Goddess Durga, he has not married her by tying of Tali. It is the case of the victim that having both went to Visakhapatnam to get marriage, as earlier taken her to Mancherial where they stayed for three days to marry and not materialized; at Visakhapatnam at Ramakrishna Beach in the temple of Goddess Durga he tied tali around her neck in declaring as marriage and so declared as married. If that is the case, once they are husband and wife exception to Section 375 referred (supra) that applies however that is not the case of the accused. As it is also the case of the victim that having so declared and having lead marital life by enjoying her sexually by staying in a rented premise by working in cell point at Visakhapatnam for some time, thereafter he brought her back to Nizamabad District where they reached to Indira Nagar and taken a rented room and left to his parents by pretended to come back to take her by convincing his parents and later failed to return and for her phone calls by responding as if he does not know her and did not marry. From the very report it speaks there is no real intention on his part while tying tali of marrying her but for deceived her by so pretending in enjoying her sexually. It is there her permission in sexual intercourse from he tied tali in make believing that he married her but in reality he deceived her by saying never married her after enjoying some period sexually. The so called consent by her in the sexual intercourse is thus from his said deception by cheating and under the misconception as husband from he tied tali in the presence of Goddess Durga. When such is the case it not only attracts Section 420 but also Section 376 and 493 IPC. Section 493 speak that every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with her in that belief, he shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
9. Now it is the contention of the counsel for the petitioner that once Section 493 attracts of their physical sexual enjoyment after he tied tali at the temple of Goddess Durga, it attracts at best Section 493 but not Section 376 IPC as the so called sexual enjoyment is after the alleged marriage and again attracting of Section 376 does not arise. In fact no charges framed in this case so far and the case is not even shown as committed but passed the order to commit and such competency for committal is under Section 323 Cr.P.C referred supra.
10. Before discussing further, coming to the propositions on the scope of Section 375 explanation 4 and 376 and 420/ 417 IPC read with Section 493 concerned, what has placed reliance mainly by the counsel for revision petitioner is of this Court Single Judge expression in Surapathi Laxmana Rao vs. State of A.P where it was observed that the consent given by 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.
11. The facts in Surapathi Laxmana Raos case (supra) were the accused is an employee in Lipi Enterprises, Isukatota, Visakhapatnam and was residing as a neighbour to the victim at Isukatota, Visakhapatnam and he used to visit and inform her that he fe ll in love with her and she also reciprocated and they started loving each other. She started cohabiting with the accused and while continuing, after some time she got pregnancy, he got aborted by promised her to marry. However, his parents demanded for dowry or money and even conceded to comply with by the parents of the victim, the parents of the accused arranged his marriage with another girl for more dowry and it was even through elders wanted to settle, failed. Thereby, the victim laid the complaint that was registered as FIR No.130 of 1998 under Sections 417, 493, 420, 423 and 506 IPC and Section 3 & 4 of D.P Act and police filed charge sheet that was taken cognizance and there also FSL report received by medical examination of the victim which shows difficult to point out whether victim was assaulted or not; though no adverse evidence to suggest against the potency of accused. After charge sheet filed before the learned Magistrate, he has taken cognizance of the offence in CC No.250 of 1999 and after framing charges under Sections 417, 323, 506 IPC and Section 4 of Dowry Prohibition Act, the accused faced trial and the case was ended in conviction for the offences punishable under Section 417 IPC and by acquitting on other charges for other offences and confirmed by Court of Sessions in Crl.A. No.13 of 2001 and when matter moved in revision before the High Court, it was raised regarding sustainability of the conviction under Section 417 IPC in seeking to set aside that conviction. The revision Court in that regard referred the Apex Courts expression in Uday vs State of Karnataka of 417 IPC attracts in such event from the consent of the victim taken by inducing sexual intercourse with promise to marry and subsequent refusal is nothing but cheating under Section 415 IPC and there is intentional deception to induce 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 and in G.V. Rao vs. L.H.V Prasad and others it was held that intention and deception pre supposes the existence of a dominant motive of the person making the inducement. However, the inducement must be dishonest or fraudulent or it should be intentional and it was held in Jaswantrai Manilal Akhaney vs. State of Bombay that guilty intention is an essential ingredient of the offence of cheating and to secure conviction of a person for the offence of cheating, mens rea on the part of that person must be established and the intention to deceive should be in existence at the time when the inducement was offered as also laid down in Mahadeo Prasad vs State of West Bengal and in Uday (supra), the Apex Court held 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 Code. But there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary or given under a misconception of fact and 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.
12. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC as it must be shown that the consent was given under a misconception of fact and also 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. It is referring the said propositions in the factual matrix the revision was allowed setting aside the conviction judgment of the Sessions Judge by the single Judge of this Court in Surapathi Laxmana Raos case (surpa). In fact the principle laid down in Udays case (surpa) it was held with reference to Section 90 IPC that consent was shown to be given as a misconception of fact and the person who obtained consent knew or had reason to believe that consent was given in consequence of such misconception and once Section 90 IPC requires the same attracts, there is no consent in the eye of law, when such is the case it is outcome of cheating under the guise of promise to marry.
13. Here in the present case it is important to note that the accused and the victim who loved with each other and agreed to marry and he has taken her to Macherial to marry and it was not fructified and again both went to Visakhapatnam there he tied tali around her neck before Goddess Durga, at Ramakrishna Beach by make believe her that he married her and there from they stayed for some time by working in cell point in a rented room as man and wife and had sexual intercourse for which she consented under a misconception of the fact of he is her husband. He having married her knows that he had no mind to marry and the tali tied is to have sexual intercourse, from that deception it is to say there is no consent in the eye of law under Section 90 IPC and as per Section 493 IPC referred supra he had committed rape with inducement by make believing that the marriage was performed before Goddess Durga at Ramakrishna Beach is a lawful marriage. It is one thing and as per explanation under Section 375 clause 4 the sexual intercourse with consent from the accused knows 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. The Apex Court in a subsequent expression in Deelip Singh Vs. State of Bihar held by referring to Sections 375 and 90 IPC that it could be a breach of promise to marry rather than false promise to marry and there is nothing on record to indicate that she was incapable of understanding the nature and implication of the act of the accused for which she consented to. It is established that from the very inception the man never really intended to marry her and the promise was a mere hoax and for that it is in trial by screening of the offence carefully with reference to Past, contemporaneous and subsequent conduct which are relevant to appreciate on facts. In that facts also prosecutrix had taken a conscious decision to participate in the sexual act only on being impressed by the accuseds promise to marry her but accuseds promise was not false from its inception with the intention to seduce her to sexual act and thereby held consequently of Section 375 IPC not established and observed that accused committed breach of promise for which he would be liable for damages also under civil law. The Apex Court also referred the earlier expression in Udays case (srupa), State of Himachal Pradesh vs. Mango ram and several decisions of various High Courts. The conclusions arrived on is after trial from the final judgment and not while framing charges or before framing charges in seeking for discharge equally in Deelip Singhs case (supra), the observations (supra) are categorically from both the cases that each case depends on its own facts to be ascertained from the evidence on record after fully dressed trial.
14. Even in Mango rams case (supra) it was at para No.13 categorically stated that consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and merely quality of degree but after having full exercise the choice between the resistance and assent. Whether there was a consent or not, is to be ascertained only on full dressed trial of all relevant facts and circumstances? It was on facts held that there was resistance by the prosecutrix and there was no voluntary participation and thereby the case comes within the purview under Section 375 (1) IPC. It is to say Deelip Singhs case is not considered under Section 375(2) IPC and Mangorams case is a case considered under Section 375 (1) IPC.
15. In a latter expression of the Apex Court in Deepak Gulati vs. State of Haryana it was held referring to Sections 375, 376 and 417 read with Section 90 IPC and Section 114-A of Evidence Act that consent obtained on a false promise of marriage and when physical relationship is pursuant to such consent and if prosecutrix was under
misconception of fact that accused would marry her, submits herself to lust of accused, such fraudulent act cannot be consensual so far as offence of accused is concerned. In the event the promise of accused not false, not been made with sole intent to seduce prosecutrix to indulge in sexual act(s), such act(s) would not amount to rape as laid down in Udays case (supra). It was observed that when prosecutrix claimed that she did not give her consent, this Court shall presume under Section 114-A of Evidence Act. Section 114-A of Evidence Act amended by Act 43 of 1993 with effect from 25.12.1983 speaks that:
Presumption as to absence of consent in certain prosecutions for rape: In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code, (45 of 1860) where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.
From the above, as per Section 114-A, the presumption as to absence of consent in certain prosecutions for rape under Clause (a) to (e) and (g) of Section 376 (2) IPC, the Court shall presume that she did not consent. It is important to note that in Deepak Gulatis case (supra) the Apex Court categorically observed referring to Deelips case (supra) that the first part of Section 90 IPC envisages giving of consent by victim under fear of injury or misconception of fact.
Whereas Second part envisages accused had knowledge or reason to believe that the consent of victim was in consequence of such deception or inducement or misconception and requirements of both to be satisfied cumulatively as first part is from the point of view of victim, while second part is from that of accused. It was observed further in para No.18 that, the consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. Mere breach of promise is distinct from not fulfilling a false promise. The Court should examine whether false promise of marriage preceded, whether consent involved, was given after wholly understanding the nature and consequences of sexual indulgence. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives. The Apex Court also referred in this regard besides Udays case (supra) and Deelip Singhs case (supra) other expressions in Yedla Srinivasa rao vs. State of A.P and Pradeep Kumar Verma vs. State of Bihar at para No.16 in particular all mainly placed reliance on Udays case and Deelip Singhs case. At para No.17, it was observed that Rape is the most morally and physically reprehensible crime in a society, as it is an assult on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks. It is also a case after full dressed trial in considering the scope when the matter came in appeal. The subsequent expression of Apex Court in Naushads case (supra) referred in its passing is appeal against the conviction judgment after trial. The earlier expressions in Deelip Singhs case, Yedla Srinivass case (supra) referred by upholding the conviction judgment of the trial Court by set aside the first appellate courts reversal and acquittal judgment.
16. There it was observed that when accused had sexual intercourse by false assurance of marriage and after she became pregnant having refused to marry seeks consent obtained under misconception of fact defined under Section 90 IPC; thereby, the accused is guilty of rape as defined under Section 375 IPC clause 4 punishable under Section 376 IPC. From reading of the above expressions, it clearly speaks that it is only after trial as each case depends on own facts, whether the alleged act/ acts tantamount to acts of rape are to be decided. When such is the case, the order passed by the learned Magistrate no way suffers illegality or impropriety for this Court while sitting in revision to interfere.
Accordingly, point No.1 is answered.
Point No.2:
17. In the result the revision petition is dismissed.
18. Needless to say the observations herein or of the learned Magistrate in taking decision to committing the case to the Court of Sessions under Section 209 Cr.P.C, no way influence the trial Court either in considering all the material afresh for framing of charges either separately or alternatively or otherwise as per the facts or in the ultimate trial of the case for its findings.
__________________________ Dr. B.SIVA SANKARA RAO J, 7th November, 2014