Karnataka High Court
Rahul M Sagar vs State Of Karnataka on 2 June, 2023
Author: K.Natarajan
Bench: K.Natarajan
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CRL.A No. 727 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JUNE, 2023
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
CRIMINAL APPEAL NO. 727 OF 2011
BETWEEN:
1. RAHUL M SAGAR ,
S/O MARUTHI,
AGED ABOUT 24 YEARS,
ROOM NO. 35,
CIVIL ENGINEERING BOYS HOSTEL,
P.G.-2, JNANABHARATHI CAMPUS,
BANGALORE.
PERMANENT ADDRESS:MARUR GRAMA,
HALABARGA POST,
BALKI TALUK,
BIDAR DISTRICT.
...APPELLANT
(BY SRI. M. SHARASS CHANDRA.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
Digitally signed by
BHAVANI BAI G BY JNANABHARATI POLICE,
Location: High
Court of Karnataka (REP. BY STATE PUBLIC PROSECUTOR)
...RESPONDENT
(BY SRI. S. VISHWA MURTHY, HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 12.7.2011
PASSED BY THE XLV ADDL.C.C. AND S.J., BANGALORE (CCH-46) IN
S.C.NO.252/08 - CONVICTING THE APPELLANT/ACCUSED FOR THE
OFFENCE P/U/S 417 OF IPC AND ETC.
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CRL.A No. 727 of 2011
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellant-accused under Section 374(2) of Cr.P.C. for setting aside the judgment and order of conviction and sentence passed by the XLV Additional City Civil and Sessions Judge, Bengaluru City (hereinafter referred to as 'Trial Court') in S.C.No.252/2008 dated 12.07.2011 for finding the accused guilty and convicted for the offences punishable under Section 417 of IPC and sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.1,00,000/- and in default of payment of fine, he shall further undergo simple imprisonment for a period of 6 months by acquitting the appellant for the offence under Sections 376 and 506 of IPC.
2. Heard the arguments of learned counsel for the appellant and learned High Court Government Pleader for respondent-State.
3. The rank of the parties before the Trial Court is retained for the sake of convenience.
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4. The case of the prosecution is that PW.1-the victim lady aged about 26 years filed first information on 05.09.2007 alleging that the accused made false promise of marriage, refused to marry her and threatened her. It is further alleged that when she was studying in the college, she also taken admission for Spoken English class at Magnum Consultancy, at that time, the accused was also a student in the said Spoken English class. Both of them developed the friendship and later fell in love. The accused said to be proposed to marry her, therefore, she took him to the house where he also assured the mother of P.W.1 that he will marry her. The accused was also doing M.Tech in the college and he is the resident of Bhalki Taluk, Maroor Village, Bidar District. Subsequently, the accused once took her to the Mysore, they stayed in her cousin's house, later, they came back to Bangalore and he tried to sexually assault her but subsequently she was taken to some lonely place at Jnanabharathi campus where he had a sexual intercourse with her with the false promise of marriage but she has not complained the same. Thereafter, he refused to marry her and avoided her friendship. Hence, she has lodged a complaint. After registering the case, the police registered the -4- CRL.A No. 727 of 2011 case in the FIR in Crime No.197/2007 for the offences punishable under Sections 376 and 506 of IPC. After the investigation and after filing the charge sheet, the accused pleaded not guilty when charges were framed and he claimed to be tried. Accordingly, the prosecution to prove its case examined 8(eight) witnesses as per PW.1 to PW.8 and got marked 12 documents as per Ex.P.1 to Ex.P.12. After closing the evidence of the prosecution, the statement of the accused under Section 313 of Cr.P.C. was recorded. The case of the accused was one of the total denial. He has taken the contention that there was no alleged rape on 30.09.2006 and at that time, he was in Bidar taking treatment in some hospital. To prove his contention, he himself examined as DW.3 and he examined two more witnesses i.e., DWs.1 and 2 and got marked 8 documents as per Exs.D.1 to D.8. After hearing the arguments, the trial Court found the accused not guilty for the offence under Sections 376 and 506 of IPC and acquitted. However, by invoking Section 221(2) of Cr.P.C., finding the accused guilty for the offence under Section 417 of IPC for cheating and he has convicted and sentence to undergo one -5- CRL.A No. 727 of 2011 year imprisonment and fine of Rs.1,00,000/-. Being aggrieved by the same, the appellant is before this Court.
5. The learned counsel for the appellant has contended that the trial Court has committed error in convicting the appellant for the offence punishable under Section 417 of IPC where there is no charges framed, Section 417 of IPC is not similar to that of Section 376 of IPC and no charges were framed and there is no evidence on record to show that the accused has intentionally cheated the complainant. She has filed a complaint to the police on 04.05.2007 and 25.08.2007. She has withdrawn the complaints on the ground of settlement between the parties. There is no allegation of rape in the said complaint. Even in the evidence of PWs.1 and 2, there is no averments to attract Section 417 of IPC. She is major aged about 26 years. Even it is consensual sex cannot be brought under Section 376 of IPC. Though the trial Court rightly found the accused not guilty and acquitted, but wrongly convicted the appellant. He further contends that in the cross-examination, PW.1 admitted that when accused tried to molest her, she avoided his company and thereafter, she has not gone together after 30.09.2006. Such being the case, the question of further -6- CRL.A No. 727 of 2011 cheating by the complainant does not arise. Hence, prayed for allowing the appeal.
6. Per contra, learned High Court Government Pleader supported the judgment of the trial court and contended that the accused gave the false promise of marriage. He has cheated the victim. It is clear that the ingredient of Section 415 attracts. Therefore, prayed for dismissing the appeal.
7. Though the accused was acquitted by the trial Court for the offence punishable under Sections 376 and 506 of IPC, neither the victim nor the State have preferred any appeal before the Court against the acquittal which has attained finality.
8. Having heard the arguments and on perusal of the records, the point that arise for my consideration is:
"1) Whether the prosecution proves that the appellant-accused cheated the complainant by making false promise of marriage, thereby, he has committed the offence under Section 417 of IPC ?"
9. On perusal of the evidence on record, PW.1 has deposed that the accused came in contact with her when she -7- CRL.A No. 727 of 2011 was studying in the English Spoken English class from 23.12.2005. The accused was also one of the student in the Spoken English class, they both came in contact with each other. As both belong to the same community, they decided to marry. Hence the appellant-accused came to the house of the complainant and spoke with her mother stating that he has decided to marry her. Subsequently, he also disconnected her friendship as he went away to his native place and did not come back for 15 days. The entire evidence of PW.1 says that both of them wandered, had sexual intercourse between them and she has given consent to the accused as he was going to marry her. She has identified Ex.P.1 as complaint and Ex.P.2 is the spot panchanama, where the offence of rape alleged to have been committed.
(a) PW.2-the mother of the victim also deposed that the PW.1-victim and accused both of them loved each other and accused wants to marry her and he has shown his desire to marry.
(b) PW.3-brother of the victim also deposed the same that the accused intended to marry her. -8- CRL.A No. 727 of 2011
(c) PW.4-the cousin sister of PW.1 also deposed the same that the accused intended to marry her.
(d) PWs.5 and 6 are the doctors who examined the accused and victim and issued Exs.P.5 and 7. Though PW.6 has stated that the victim was accustomed to the act like intercourse, but the trial Court has not found evidence of the prosecution witnesses and acquitted the accused under Sections 376 and 506 of IPC.
(e) PW.7 is the spot panch witness and turned hostile in respect of Ex.P.2.
(f) PW.8 is the Investigating Officer who issued the FIR, investigated the matter and filed the charge sheet.
10. On perusal of the entire evidence on record, PWs.1 to 4 are the interested witnesses and all of them have stated that both of them loved each other and the accused shown desire to marry but subsequently he failed to marry her. Whether the victim and the accused fallen in love and thereafter, the accused did not marry her which falls under the category of offence under Section 415 of IPC in order to avoid -9- CRL.A No. 727 of 2011 punishment under Section 417 of IPC, Section 415 of IPC reads as under.
"415. Cheating:
Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or 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. Illustrations
11. On reading of Section 415 of IPC, where the illustration to Section 415 of IPC is not available to show that when both aged male and female wandered together, agreed to marry each other and later the marriage was not able to perform which falls under the category of Section 415 of IPC. Absolutely, there is no ingredient to attract Section 415 of IPC in order to punish the accused under Section 417 of IPC.
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CRL.A No. 727 of 2011
12. The trial Court even though there is no evidence recorded and charges framed for the offences punishable under Section 417 of IPC for cheating of the victim by the accused but found guilty by invoking Section 221(2) of Cr.P.C. Of course, as per Section 221(2) of Cr.P.C., the Court can find guilty for lesser offence even though the charges were not framed for the offence where there is nature of the offence is doubtful for several offences of facts which can be proved or constituted, the accused may charge with having committed all or any of such offences and any number of such charges may be tried at once. He may be charged in the alternative where it is having committed with some one of the said offences. Sub Section 2 of Section 221 provides, the accused if charged on various offences which were similar and he can be convicted for the lesser offence even though he was not charged. But here in this case, absolutely there is no evidence on record or the allegation against the accused that he has cheated the complainant, whereas the case of the prosecution is that under the guise of promise of marriage, the accused committed rape on her or sexually assaulted her and later, he has failed to marry her.
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CRL.A No. 727 of 2011
13. It is brought by the evidence on record by the accused and on the alleged date of rape i.e., on 30.09.2006, the accused was not at all in Bangalore, he was in Bidar District taking treatment from DW.2. He has produced the documents for the same. PW.1 has stated that on 30.09.2006, when she was in the library, the accused was also in the library and under the guise of talking with her, he has taken her out of the library and took her to the lonely place and committed sexual assault on her. Whereas, in the Exs.D2 and D3 produced by the accused and his evidence as DW.3 reveals that as on 30.09.2006, both of them were not at all found in the library, she has not signed in the attendance, even though she was signed on other dates but not on 30.09.2006. That apart, PW.1 has admitted in the cross-examination that she has lodged a complaint to the Police on 04.05.2007 stating that accused cheated her without marrying her. She has given statement as per Ex.D.1 before the Police that she is withdrawing the complaint dated 04.05.2007 that both of them were compromised. The statement of the accused was also recorded by the Police. He has categorically denied the allegation, however he has undertaken not to interfere with her affair and
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CRL.A No. 727 of 2011she also undertaken not to interfere with the affair of the accused. Based upon the said undertaking given by both PW.1 and accused, the Police have already closed the matter as on 25.05.2007. Such being the case, PW.1 once she has withdrawn the allegation and settled the issues, but, subsequently within 10 days that is on 05.09.2007, she has came with the contention that the accused committed rape on her and made the police to register the FIR and a charge sheet was came to be filed by the police.
14. Considering the said aspect, I am of the view that the prosecution has failed to prove the charges as the accused committed cheating on PW.1, even other wise, the false promise of marriage and when both have loved and thereafter discontinued their relationship, that cannot be brought under Section 415 of IPC. Therefore, I am of the view, convicting the appellant under Section 417 of IPC does not arise. The trial Court committed error in finding guilty and convicting the appellant under Section 417 of IPC. Therefore, the appellant is entitled for acquittal.
15. Accordingly, I pass the following
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CRL.A No. 727 of 2011ORDER The appeal is allowed.
The judgment of conviction and order of sentence passed by the XLV Additional City Civil and Sessions Judge, Bengaluru City in S.C.No.252/2008 for the offence punishable under Section 417 of IPC is hereby set aside.
The appellant is acquitted for the offence punishable under Section 417 of IPC and his bail bond stands cancel. The fine amount if any deposited is ordered to be refunded to the appellant-accused by due identification.
Sd/-
JUDGE GBB List No.: 1 Sl No.: 22