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IN THE COURT OF THE SPECIAL SESSIONS JUDGE FOR FAST TRACKING THE
CASES RELATING TO ATROCITIES AGAINST WOMEN, NALGONDA
(Dated this the 2 nd day of August, 2021)
PRESENT: SMT.V.SHARADA DEVI
Special Sessions Judge for Fast Tracking the Cases Relating to
Atrocities Against Women, Nalgonda.
SESSIONS CASE No.08 of 2016
1. Name of the Complainant:
The State of Telangana through Sub-Inspector of Police, Kodad Circle.
2. Name of the accused:
1.Thotapally Naga Raju, S/o Venkateshwarlu, age:28 years, Occ:Blacksmith (Coolie), R/o Gandhinagar of Kodad Town, Nalgonda district.
2. Thotapally Venkateshwarlu, S/o Thirupathaiah, age: 68 yrs, Occ: Coolie, R/o: Gandhinagar, Kodad Town, Nalgonda District.
( Case against Accused No.2 is abated since died)
3. Thotapally Kumari W/o Venkateshwarlu, age: 65 yrs, Occ: Coolie,R/o: Gandhinagar, Kodhad Town, Nalgonda District.
3. Offences charged: under Sections 417,420,376 ,504 and 506 of Indian Penal Code
4. Plea of the accused: Not guilty
5. Finding of the court: Accused No.1 found guilty for the offences punishable under section 376 and 417 of Indian Penal Code. Accused No.3 found guilty for the offence punishable under section 323 of
Indian Penal Code.
6. Sentence: In the result, the accused No.1 is found guilty for the offence punishable under section 376 of Indian Penal Code and accordingly, he is convicted for the said offence under section 235 (2) Cr.P.C. He is sentenced to undergo Rigorous imprisonment for a period of Ten years (10) and to pay fine of Rs.50,000/- for the offence under section 376 Indian Penal Code. In default of payment of fine amount, he shall suffer further Rigorous Imprisonment for a period of three months. He is also sentenced to undergo Rigorous Imprisonment for a period of one year (01) for the offence under section 417 Indian Penal Code.The fine amount paid by the accused No.1, shall be given to the victim/prosecutrix towards compensation, after expiry of appeal time. Both the above sentences of accused No.1 shall run concurrently . The remand period of the accused i.e., from 05.08.2015 to 01.09.2015 (28 days) shall be set off under section 428 Cr.P.C. The accused No.1 is found not guilty for the offence punishable under section 420 of IPC and accordingly he is acquitted for the said offence under section 235 (1) Cr.P.C. Accused No.3 is found guilty for the offence punishable under section 323 of Indian Penal Code and accordingly she is convicted under section 255 (2) Cr.P.C and sentenced to pay fine of Rs.1,000/- (one thousand only) for the said offence. In default of payment of the fine amount she shall undergo simple imprisonment for a period of one month. Accused No.3 is found not guilty for the offence under section 504 of Indian Penal Code and accordingly she is acquitted for the said
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offence under section 255 (1) Cr.P.C. The bail bonds of the accused Nos.1 and 3 shall stands cancelled immediately.
7. Prosecution conducted by: Sayed JameelAddl.P.P
8. Accused defended by: Sri M.Ramachander Rao., Advocate for accused No.s 1 to 3.
This case is coming up before me for final hearing on dt. 13.07.2021 in the presence of Learned Addl.P.P for State and of Sri M.Ramachander Rao., Advocate for the accused, and upon hearing arguments of both sides and on perusal of the material papers on record and having stood over for consideration, till this day, the court delivered the following:
JUDGEMENT
1. The Sub-Inspector of Kodad circle has filed charge sheet against accused Nos. 1 to 3 in Cr.No.172/2015 for the offences punishable under sections 417,420,376,504 and 323 of IPC.
2.The factual matrix of the prosecution case is as follows:
The house of accused No.1 is situated adjacent to the house of prosecutrix/P.w.1 at Gandhinagar locality. She is working as a tailor whereas accused No.1 is working as blacksmith. About three years back accused No.1 followed the prosecutrix and developed acquaintance with her. Subsequently they became close friends and accused No.1 started visiting the house of the prosecutrix. After few days he proposed his love to her and assured her that, he would marry her after convincing his parents. The prosecutrix believed the same and taking it as an advantage accused No.1 who used to visit her house in the absence of her parents i.e., P.w.3 and L.w.4 (T.Somaiah) asked her for co-habitation. Though the prosecutrix refused for the same, the accused pressurized her and made her believe that he would marry her and thereby participated in sexual intercourse with her for several times. In the year 2013 when she was working in Shraddha Speech Therapy Centre, Kodad
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the accused No.1 also visited that place and co-habited with her on the pretext of marriage. Later the prosecutrix started staying at home by working as a tailor. At that time accused No.1 took her to the outskirts of
Kodad town and participated in sexual intercourse with her. Five months prior to lodging of complaint, the prosecutrix asked accused No.1 to marry her but he postponed the matter on one or other pretext. At last when she pressurized him to get married he bluntly refused by stating that his parents i.e., accused Nos.2 and 3 are not agreeing for the marriage. Accused Nos.2 and 3 visited the house of P.w.2 on 23.07.2015 at 7.30 PM and they picked up dispute with P.w‘s.1 and 2 by abusing them in filthy language as to why the prosecutrix is pressurizing their son i.e., accused No.1 for marriage though he refused and by saying so they had beat the prosecutrix with hands by catching hold of her tuft. Later the prosecutrix asked accused No.1 to marry her for several times but her efforts turned futile. Accused No.1 induced the prosecutrix on the false promise of marriage and participated in sexual intercourse with her at several places and finally refused to marry her and thereby cheated her. On that, the prosecutrix lodged police complaint against accused Nos.1 to 3 on 03.08.2015. On her complaint a case in
Cr.No.172/2015 was registered by P.w.9 (Sub-Inspector of police) for the offences under sections 417, 420 and 376 of Indian Penal Code. During the course of investigation, L.w.16 (M.Esthare Rani, Woman Sub-Inspector of
Police), had examined the prosecutrix and recorded her Sec.161 Cr.P.C statement. Subsequently, P.w.10 took up investigation and recorded the statement of P.w.2 and on 04.08.2015 he visited Gandhinagar and examined
P.ws.,3,4 and L.ws.4 and 6 (T.Somaiah and K.Bharathamma) and recorded their Sec.161 Cr.P.C statements. Subsequently he visited scene of offence situated at H.No.7-108/2, Gandhinagar, Kodad and by securing P.w.7 and
L.w.11 (S.Lingaia) as panch witnesses, he had conducted scene of offence panchanama and drawn rough sketch. Thereafter, he had sent the prosecutrix to Government Community Health Centre, Kodad for medical examination. P.w.8 who examined the prosecutrix preserved the vaginal
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swabs and slides for forwarding them to FSL. Later P.w.10 visited the
Huzurnagar road and examined P.w‘s.5,6 and L.ws.6 and 9 (K.Bharathamma and R.Putlamma) and recorded their Sec.161 Cr.P.C statement. On 05.08.2015, P.w.10 arrested accused Nos.1 to 3 and sent accused No.1 to community health centre, Kodad for medical examination and potency test.
L.w.13 (Dr.Nageshwar Rao) who examined accused No.1 issued potency certificate opining that, ―There is nothing to suggest that the male examined is not capable of performing sexual act.‖ P.w.8 who examined the prosecutrix issued her final opinion basing on the FSL report stating that, ―There are no positive signs of recent intercourse and the victim is not virgin.‖ L.w.18 (M.Sridhar Reddy, Circle-Inspector of police) who took up further investigation verified the investigation done by P.w.10 and finally he filed charge sheet against accused Nos.1 to 3 for the above said offences. Hence the charge.
3. The learned Judicial Magistrate of First Class Kodad, took cognizance for the offences punishable under Section 417,420,376,504,323 of Indian
Penal Code against accused Nos. 1 to 3 and by registering the case as
PRC.No.17 of 2015 and after following the due procedure by furnishing copies under Section 207 Cr.P.C., committed the case to the Court of
Sessions, Sessions Division, Nalgonda District under Section 209 (a) of
Cr.P.C. The Hon‘ble Prl.Court of Sessions, Nalgonda having numbered the same as S.C.No.08 of 2016 made over the same to this Court for trial and disposal, in accordance with the law.
4. On appearance of the accused Nos. 1 and 3 before this court, charges under Sections 417,420,376,504 and 506 of Indian Penal Code against accused No.1 and charges under sections 504 and 323 of Indian Penal Code against accused No.3 were framed, read over and explained to them in
Telugu as contemplated U/s. 228 (1) Cr.P.C. For which they denied the same and claimed to be tried. Case against accused No.2 is abated on 24.04.2019.
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5. On behalf of the prosecution, PW‘s.1 to 10 were examined and got marked Exs.P.1 to P8.
6. On completion of the prosecution evidence, the accused Nos. 1 and 3 were examined under Section 313 Cr.P.C., by explaining the incriminating material available in the evidence of prosecution witnesses. For which they denied the same and reported no defence evidence. No documents marked on behalf of the accused.
7. Heard arguments of both sides.
8. The learned Addl.Public Prosecutor contended that, the evidence of the prosecutrix clearly reveals that, after two months from her friendship with the accused No.1, he expressed his love towards her and made her believe his promise of love and marriage and thereby developed sexual relationship with her. Her evidence further reveals that, their sexual relationship continued for a period of three years and subsequently when she started insisting accused No.1 to get married as early as possible, then he along with his parents came to the house of P.w.2 and by disputing with them they had also beat the prosecutrix and abused her in filthy language. It is further contended by him that, P.w‘s.2 and 3 had supported the case of prosecution.
The evidence of P.w.6 who is an independent eyewitness also reveals that, accused No.1 had exploited P.w.1 i.e., prosecutrix sexually and cheated her by refusing to marry her. Her evidence also reveals that, accused Nos.2 and 3 had not only abused P.ws.1 and 2 but they had also beat P.w.1/prosecutrix by catching hold of her hair. It is further contended by him that, P.w.7 who is said to be panch witness for scene of offence had supported the case of prosecution and the evidence of P.w.8 i.e., Medical Officer reveals that, there was intercourse between the prosecutrix and known person for a period of six months prior to her examination. It is further contended by him that, the very fact of denying his acquaintance and love affair with the prosecutrix by accused No.1 itself reveals that, since beginning he has no intention to marry her but only with a dishonest intention induced the prosecutrix on the pretext of love and marriage and made her to participate in sexual intercourse with
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him and finally when she insisted for marriage, then he had not only refused the same but also visited her house with his parents and beat her which resulted in lodging of the complaint by the prosecutrix. Thus, it is contended by him that, the prosecution has proved the case against the accused for the offence under section 376 Indian Penal Code as it falls under misconception of fact as defined under section 90 Indian Penal Code. It is also contended by him that from the evidence of prosecution witnesses it is proved that, the accused No.1 with a fraudulent and dishonest intention had willfully cheated the prosecutrix and he along with his parents had insulted her intentionally and also beat her with hands and thereby the offences under sections 417,420,504 and 323 are made out against the accused. Hence, prayed to convict the accused.
9. The learned Addl.Public in support of his contentions, had relied upon the following decision:- i.Anurag Soni v/s State of Chattisgarh decided on 09.04.2019 in Crl.Appeal No.629/2019 it was observed that by his lordship of our Hon‘ble Apex Court that, “If the prosecutrix had sexual intercourse with the accused on the representation made by the accused that he would marry her and when it is proved that it was a false promise held out by the accused and had this promise not given by the accused then perhaps the victim would not have permitted the accused to have sexual intercourse.
Then it can be held that, the consent obtained by accused, is not a valid one, as it is obtained under misconception of fact. It was also observed by his lordship that, “The prosecution must establish that, the intention of the accused is not bonafide and the consent given by the victim is not a voluntarily consent. So also the offence of rape is a crime against entire society and it violates the human rights of victim.”
10. The learned defence counsel submitted his oral arguments contending that, as per the case of prosecution there was live in relationship between prosecutrix and the accused No.1 for a period of three years and during that
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period the prosecutrix never reported the matter to anybody and she did not insist accused No.1 for marriage which itself reveals that, the sex in between them is consensual as such the offences under sections 376 and 420 of
Indian Penal Code are not attracted. It is further contended by him that, only motive of the prosecutrix in lodging the complaint in this case is that accused
No.1 got engaged with one Anitha and to stop that marriage, she has chosen to lodge this complaint. It is further contended by him that, there is no report to show that, scene of offence house is standing in the name of father of the prosecutrix and the evidence of P.w.6 is disproved by the rough sketch map and because her shop is not shown to be in existence, surrounding the scene of offence. It is also contended by him that, as per the evidence of P.w.8, the prosecutrix did not reveal the name of the known person with whom she participated in sexual intercourse as such the benefit of doubt should go to the accused.
11. Written arguments filed by the defence counsel contending that, as the evidence of prosecutrix/P.w.1 reveals that, she fell in love with accused No.1 and continued her sexual relationship with him for a long period of three years and more, the so called promising to marry her by accused No.1 and under that pretext she agreed for sexual life, is incorrect.
It is further contended by him that, in her cross-examination the prosecutrix admitted that, she has co-habited with accused No.1 willingly out of love and developed live in relationship with him voluntarily, as such it cannot be said that she was raped by accused No.1 and so also he had cheated her. It is also contended by him that, in the Judgment reported in 2019 (3) ALT Crl.
216 it was observed by their lordships of Hon‘ble Apex Court in that case that ―There is no allegation in the First Information Report as to when the appellant promised to marry the complainant, it was done in bad faith or with an intention to deceive her. The appellant failure in 2016 to fulfill his promise made in 2008 cannot be construed to mean that the promise itself was false.‖
12. It is further contended by him that, the prosecutrix herein lodged police report after seven months from the date on which accused No.1
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refused to marry her and in her cross-examination she admitted that, as accused No.1 is going to marry one Anitha she has lodged the police report as such this is the false complaint. It is further contended by him that, the version of P.w‘s.2 and 3 was not found in their Sec.161 Cr.P.C statements as such the same cannot be admitted as per the decision reported in 2006 (1) (3) ALD Crl. 493. It is further contended by him that, the evidence of
P.w's.4 to 7 are not helpful to the case of prosecution and as per the evidence of P.w.8 i.e., Medical Officer there is no positive sign of recent intercourse and in such case the benefit of doubt has to be given to the accused as per the judgment of Hon‘ble Supreme Court reported in 1996
Crl.Law Journal Page 1807. Thus it is contended by him that, the entire evidence of prosecution witnesses do not attract any of the offences alleged against the accused and the injuries of P.w's.1 and 3 were also not proved, as they were not referred to any hospital. Hence, prayed to acquit the accused.
13. The defence counsel in support of his contentions had relied upon the following decisions:- a. In Pramod Suryabhan Pawar v/s The State of Maharashtra and another in Crl.Appeal No.1165/2019 dated 21.08.2019 their lordships of Hon‘ble Apex Court observed that, ―There is a distinction between mere breach of promise and not fulfilling a false promise. The court must examine whether there was made, at an early stage a false promise of marriage by the accused and whether consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, but 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. Then such cases must be treated differently. It was observed by their
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lordships that, in order to come within the meaning of the term “misconception of fact, the fact must have an immediate relevance Section 90 IPC cannot be called into aid in a such situation, to pardon the act of a girl in its entirety and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.” b. 2021 (1) ALT Criminal 223 Kagitha Narendra @ Sunny v/s State of A.P through Ponnur Rural Circle represented by Public
Prosecutor Hon’ble High Court of A.P Amaravathi in which the lordship of their Hon‘ble High Court held that “Cohabitation between consenting adults on the promise of marriage is not rape unless it is proved that the appellant/accused had in bad faith and with mala fide intentions held out a false promise of marriage from the inception of the relationship and his subsequent failure to marry would not invariably lead to an inference of deceit or dishonest. Dishonest intention or bad faith must exist at the initial stage of the relationship and mere failure to live up to the promise of marriage without anything more, cannot be a ground to convict a person of rape.” c. 2006 (1) ALD (Crl.) 493 (AP) {P.Gangadhar v/s State of A.P in
Crl.Appeal No.1617/1999 decided on 10.02.2006} in which it was held by his lordship of Hon‘ble High Court of A.P held that, ―When a particular fact deposed by the witnesses before the Court is not contained in the First Information Report or in the Sec.161 Cr.P.C statement of that witness then it is an improvement and cannot be considered.” d. 2014 (3 )SCJ 327 (Union of Indian and others v/s Major
S.P.Sharma and others} in Civil Appeal NOs.2951-2957 of 2001 decided on 06.03.2014} in which their lordship of our Hon‘ble Apex
Court held that, “Precedent keeps the law predictable and law declared by the Apex Court is binding on all Courts/Tribunals and authorities in
India in view of article 141 of constitution. The doctrine of stare decisis
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promotes a certainty and consistency in judicial decisions and this helps in development of law. Even otherwise it is an imperative necessity to avoid uncertainty, confusion. Judicial propriety and decorum demand that the law laid down by the highest Court of the land must be given affect to.”
e. In Crl.Appeal No.233 of 2021 (Arising out of SLP (Crl.) No.11218
of 2019), D/-1-3-2021 {Sonu alias Subhash Kumar v/s State of
Uttar Pradesh and another} in which their lordships of Hon‘ble Apex
Court held that, “To establish whether the „consent‟ was vitiated by a „misconception of fact‟ arising out of a promise to marry, two proportions must be established. The promise of marriage must have been a false promise given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance or bear a direct nexus to the woman‟s decision to engage in sexual act.”
14. Now the points for determination are:
Whether the prosecution is able to establish the guilt of the Accused No.1 for the offences under sections 417,420,376,504 and 506 of Indian Penal Code against accused No.1 and charges under sections 504 and 323 of Indian Penal Code against accused No.3?
A. For the offence charged under section 376 Indian Penal Code
against accused No.1?
B. For the offence charged under section 417 IPC against accused
No.1?
C. For the offence charged under sections 420 of IPC against
accused No.1?
D. For the offence charged under section 504 of Indian Penal Code
against accused No.3?
E. For the offence charged under section 323 of Indian Penal Code
against accused No.3?
15. Point (a):
A. For the offence charged under section 376 Indian Penal Code
against accused No.1?
16. It is the case of prosecution that, both the prosecutrix and accused
No.1 are acquainted with each other prior to lodging of the complaint and out of that acquaintance accused No.1 not only made friendship with her but also
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induced her on the pretext of love and marriage which resulted in development of sexual relationship in between them and the same continued for a period of three years and finally when the prosecutrix insisted accused
No.1 to marry her then accused No.1 had not only refused for marriage but he along with his parents i.e., accused Nos.2 and 3 went to the house of
P.w.2 (sister of prosecutrix) and attacked the prosecutrix/P.w.1 apart from abusing her in filthy language, which resulted in lodging of the complaint.
17. Sec.376 of Indian Penal Code prescribes the punishment for the offence of rape. Whereas Sec.375 of Indian Penal Code defines offence of rape and it enumerates six 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 eighteen years of age.
Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Seventhly: When she is unable to communicate consent.
Explanation 2 of Sec.375 of Indian Penal Code provides, that consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non verbal communication, communicates willingness to participate in specific sexual act. Provided that, a woman who does not
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physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
18. As per the third description of Sec.375 Indian Penal Code, ―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.‖ It is not the case of prosecution that, the prosecutrix herein or the person in whom she is interested was put in fear of death or hurt by the accused herein, for participating in sexual intercourse with her. As per the case of prosecution, the accused had participated in sexual intercourse with the prosecutrix with her consent, but the consent obtained by him from her is not a valid consent as provided under Section 90 of Indian Penal Code, because her consent was said to have been obtained under misconception of fact i.e., false promise of marriage. At this stage it would be appropriate to discuss about Sec.90 of IPC, which deals with ―consent known to be given under fear or misconception.‖
19. The facts set out in first para of Sec.90 IPC is the consent given by a person under fear of injury or misconception of fact is not a consent, which is from the point of view of the victim i.e., prosecutrix herein. Whereas in second part of that section, ―The person doing the act knows or has reason to believe that such consent was given in consequence of such fear or misconception which is from the point of view of the accused.‖ Hence, existence of twin requirements of sec.90 Indian Penal Code must be cumulatively satisfied in order to enable the court to hold that ‗no consent‘ in law existed at the relevant point of time. When the above two conditions precedent or co-existent in a given case, then it can be safely held that, no consent as envisaged under Sec.90 Indian Penal Code, existed. Because it is an established principle of law that ―Submission of body by a woman under fear or misconception of fact, cannot be construed as valid consent on her behalf.‖
20. Consent with respect to Sec.375 of I.P.C involves an active understanding of the circumstances, action and consequences of proposed act. An individual to make a reasoned choice to act, after evaluating various
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alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. Thus consent to be an act of a reason coupled with the deliberation. Therefore, to attract offence under section 376 Indian Penal Code, the consent under section 375
Indian Penal Code requires voluntary participation not only after exercise of intelligence based on knowledge of significance of moral quality of act, but after having fully exercised the choice between resistance and assent.
21. Coming to the present case no doubt as on the date of alleged development of sexual relationship between prosecutrix and the accused, she is a major woman who is capable of exercising her choice between resistance and assent and so also having sufficient knowledge about the moral quality of the act in which she is indulged in. According to the prosecutrix herein, the house of the accused No.1 is situated adjacent to their house in Kodad, as such she got acquaintance with him three years prior to lodging of the complaint and gradually that acquaintance turned into friendship. As per her version after two months of their friendship accused No.1 expressed his love towards her and furthermore cut his hand when she was not agreeing for his love proposal. Finally due to his acts, she believed his promise of love and marriage and thereby started loving him. Though there is no averment in
Ex.P1 regarding cutting of his hand by accused No.1 from her evidence, it is apparent that the prosecutrix is also having love affair with the accused No.1.
22. Both accused Nos.1 and 2 in their Sec.313 Cr.P.C examination stated that, the house of prosecutrix/P.w.1 is situated adjacent to their house. But accused No.3 denied her knowledge about the love affair between the prosecutrix and accused No.1. Whereas accused No.1 had not only denied the love affair but also stated that, there is no sexual relationship in between him and the prosecutrix. On one hand the accused No.1 is totally denying his love affair and sexual relationship with the prosecutrix and on the other hand contending that, the prosecutrix had participated in sexual intercourse with him voluntarily as such it is a consensual sex and thereby it does not come under misconception of fact under section 90 of Indian Penal Code. No doubt
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the accused No.1 has got right to remain silent and in the absence of any evidence adduced on his behalf, no adverse inference can be drawn against him, because in criminal cases the entire burden rests upon the prosecution to prove their case beyond reasonable doubt. But at the same time the reply given by the accused at the time of Sec.313 Cr.P.C examination to the incriminating material of the prosecution witnesses put to him, cannot be ignored ‗in toto‘ because from the answers given by him the Court can look into the fact that whether defence raised by him is reliable to be acted upon or not, in order to arrive at just conclusion. Though the learned defence counsel in his oral and written arguments contended that, the co-habitation of the prosecutrix with accused No.1 is willingly out of love and her live-in relationship is voluntary, the accused No.1 nowhere in his Sec.313 Cr.P.C examination admitted about his co-habitation with the prosecutrix and furthermore denied even his alleged love affair with her. Merely because the prosecutrix in her cross-examination admitted that, in her complaint i.e.,
Ex.P1 she has mentioned that, her co-habitation with accused No.1 is willingly out of love and she did not mention specifically that with an intention to cheat her, accused No.1 developed sexual relationship with her, it cannot be held that the sexual relationship between the prosecutrix and accused No.1 is consensual in nature. Having denied the sexual relationship between him and the prosecutrix totally, the accused No.1 cannot be permitted to blow hot and cold air at the same time. If accused No.1 admits his sexual relationship with prosecutrix then he can definitely contend that, the same was on account of love and passion of the prosecutrix towards him which is voluntary and there was no false representation on his behalf to make the prosecutrix consent for sexual relationship. Only in such case it can be held the prosecutrix having exercised her intelligence to make a reasoned choice cannot be permitted to blame accused No.1 by contending that, he had cheated her on the false promise of love and marriage.
23. According to the prosecutrix, in the temporary absence of her parents accused No.1 used to come to their house and developed sexual relationship
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with her on the promise of marriage. Their sexual relationship continued for a period of three years. She further deposed that, accused No.1 took her to several places where he participated in sexual intercourse with her on the promise of marriage as such she too did not refuse. She also deposed that, in the year 2013 when she was working in Shraddha speech therapy then accused No.1 used to come to that office and he had participated in sexual intercourse with her in a room of that office. From her evidence it is seen that, on 23.07.2015 accused No.1 along with his parents i.e., accused Nos.2 and 3 went to the house of P.w.2 and disputed with the prosecutrix and her sister and at that time accused Nos.2 and 3 had beat her with hands indiscriminately. Later a panchayath was held in the presence of elders where accused No.1 refused to marry her by stating that, he would marry any job holder. Even when she made phone call to accused No.1 and requested to marry her, accused No.1 refused by stating that, his parents are looking for marriage alliances and he is not interested in marrying her. On that she has lodged police complaint against accused Nos.1 to 3 on 03.08.2015 as in
Ex.P1.
24. The contents of Ex.P1 reveals that, accused No.1 who is neighbour of the prosecutrix developed friendship with her and subsequently expressed that, he is in love with her and further promised that he would marry her by convincing his parents. On that the prosecutrix who believed his words started live-in relationship with him. Five months prior to lodging of the complaint when she demanded him for marriage then he had postponed the issue and further, one month prior to her complaint, accused No.1 disclosed to her that, his parents are not agreeing for their marriage as such he is also not willing to marry her and thereby kept her aloof. Ex.P1 further reveals that, accused
No.1 on the promise of marriage developed live-in relationship with the prosecutrix and later not coming forward to keep up that promise, as such necessary action may be initiated against accused No.1 and his parents. It is the contention of defence counsel that prosecutrix in her cross-examination admitted that, when she came to know that accused No.1 is going to marry
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one Anitha, she lodged complaint as such it is a false complaint. The said contention is however unsustainable because from the evidence of prosecutrix it is established that, only after refusal of marriage by accused No.1, she has chosen to lodge this complaint.
25. During her cross-examination she deposed that, there are no love letters except one poem written by accused No.1 to her but she did not hand over the same to the police. According to her, there are exchange of phone messages, phone recordings to show the existence of love affair in between her and accused No.1.Her evidence further reveals that, accused No.1 who came to know about recording of phone calls by her, had destroyed the same.
No doubt even as per the admission of the prosecutrix during her cross- examination there was no mention about convening of panchayath by her in the presence of elders in which accused No.1 refused to marry her. Moreover she failed to state the names of the elders under whom the alleged panchayath was held. However from the contents of Ex.P1 and her evidence it is seen that, the prosecutrix developed sexual relationship with accused No.1 on the promise of marriage said to have been made by him. During her cross- examination the prosecutrix deposed that, by the time of development of their sexual relationship, she was aged 23 years and she believed that accused
No.1 will marry her at any cost as such she has participated in sexual intercourse with him. Though she admitted that in her complaint she has mentioned that, out of her love towards accused No.1 she developed live-in relationship with him voluntarily, the contents of her complaint clearly reveals that, accused No.1 had promised to marry her by convincing his parents and thereby she believed his words and consented for live-in relationship. Merely because the live-in relationship between the prosecutrix and accused No.1 continued for a period of three years during which there is no sort of complaint from the prosecutrix, it cannot be held that She being a consenting party has got no right to raise her voice against accused No.1 for her alleged grievance. Because there is distinction between false promise of marriage and breach of promise. The distinction therein was clearly explained by their
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lordships of our Hon‘ble Apex Court in Pramod Suryabhan Pawar v/s The
State of Maharashtra and another case referred supra.
26. The present case, does not come under breach of promise because accused No.1 is totally denying his love affair with the prosecutrix and further says that, he never promised to marry her. Hence, breach of promise does not apply to the present case. Coming to the other aspect i.e., ―Not fulfilling a false promise.,‖ from the evidence of prosecutrix and her complaint averments it is seen that basing on the promise of marriage made by accused No.1, she consented for sexual relationship with him. Though she admits her love affair with accused No.1, she asserts in her testimony and as well as in her complaint that, the basis of development of her sexual relationship with accused No.1 is solely on account of promise of marriage made by him at that time. As accused No.1 had totally denied the love affair and sexual relationship in between them, the evidence of the prosecutrix has to be weighed cautiously in the present case to arrive at conclusion relating to the fact that, whether any sexual relationship existed in between her and accused
No.1, as alleged by her.
27. Generally in rape cases the sole testimony of the prosecutrix is sufficient to believe the case of prosecution and the court need not look for corroboration of her testimony with the evidence of other prosecution witnesses, provided her evidence inspires confidence in the mind of the court about the alleged commission of offence by the accused, against her. It is borne from the record that, the prosecutrix and as well as accused No.1 belongs to same Community i.e., S.C Madiga by caste. As such there are no caste differences which can promote hurdles for performance of their marriage. The prosecutrix in her cross-examination admitted that, on 23.07.2015 she came to know about the intention of accused No.1 to not to marry her but she did not choose to lodge complaint against him and his parents, on the same day. However from her evidence it is seen that, after ten days or so from 23.07.2015, she has lodged police complaint against accused No.1 and his parents. As per Ex.P1 (First Information Report) the
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reason for delay is mentioned as ―The complainant requesting the accused several times and lodged the petition in belatedly (produced verbatim)‖. Thus from the evidence of the prosecutrix and from the complaint averments, it is established by the prosecution that during their live-in relationship for a period of three years, accused No.1 has postponed the issue of marriage and only one month prior to lodging of the complaint, he refused to marry her and so also on 22.07.2015. Thus, within short term from the time of his refusal for marriage, the prosecutrix has chosen to lodge police complaint against him. If really there is a long gap from the date of refusal of marriage by accused No.1 to till the date of lodging of complaint by the prosecutrix, then definitely it can be held that, the delay caused in lodging the complaint would be fatal to the case of prosecution. Another aspect that deserves consideration is, delay is a general phenomena in rape cases because the cause for the delay in lodging of the complaint would be more particularly the reluctance of the prosecutrix or her family members to go to the police station to complaint about the incident because it involves the reputation of the prosecutrix and the honour of her family.
28. To support the case of prosecution the sister of the prosecutrix is examined as P.w.2 in the present case. According to her, it is the prosecutrix who lodged police complaint in this case. Her evidence is corroborative with the evidence of the prosecutrix relating to the visit of accused Nos.1 to 3 to her house on 23.07.2015 during evening hours and at that time accused No.3 was shouting loudly by coming to her house by alleging that, P.w.2 had sent the prosecutrix to co-habit with accused No.1 (i.e., her son) to grab their property i.e., house, lands etc., She further deposed that, accused No.3 was trying to drag the prosecutrix out of the house of P.w.2 by catching hold of her hair and dress and both accused Nos.2 and 3 had beat the prosecutrix on that day. Even the prosecutrix deposed that, the parents of accused No.1 i.e., accused Nos.2 and 3 had dragged her out of that house and beat her with hands indiscriminately. It is P.w.2 who rescued her from their hands. The evidence of P.w.2 further reveals that, on her enquiry with the prosecutrix she
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came to know that on the pretext of marriage accused No.1 induced and developed sexual relationship with her. During her cross-examination P.w.2 admitted that, on the date of incident itself the prosecutrix has lodged police complaint in this case. But according to the prosecutrix that night she went to
Kodad police station and held panchayath and finally on 03.08.2015 she lodged Ex.P1. The evidence of P.w.2 though reveals that, the prosecutrix rushed to the police station on 23.07.2015, her evidence do not reveal that a panchayath was held before elders on that night in which accused No.1 is said to have refused to marry the prosecutrix. However her evidence reveals that, when the prosecutrix rushed to the police station then accused No.1 made phone call to her and threatened to not to marry her, if she lodges police complaint and thereby requested her to come back to settle the matter before village elders.
29. Though P.w.2 is not a direct witness to the alleged love affair and sexual relationship between the prosecutrix and accused No.1, from her evidence it can be seen that, on the alleged date of incident i.e., on 23.07.2015 accused Nos.1 to 3 came to their house and both accused Nos.2 and 3 had disputed with the prosecutrix by alleging that, she has co-habited with accused No.1. Though, it is suggested by the defence counsel that the facts which were stated by P.w.2 before the court were not stated by her to the police at the time of her examination, during the cross-examination of
P.w.10 (Investigating Officer) nothing was elicited by him to prove that, the evidence of P.w.2 is full of material omissions, as such her evidence before this court cannot acted upon. Moreover he could not succeed in eliciting the fact during the cross-examination of P.w.2 that, she is an interested witness having animosity to depose falsely against accused Nos.1 to 3. In the absence of the same merely because P.w.2 is a sister of the prosecutrix, her testimony
before this court regarding the allegations made by accused Nos.2 and 3
against the prosecutrix of her co-habitation with accused No.1, cannot be brushed aside.
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30. The evidence of P.w.3 (mother of the prosecutrix) reveals that accused
No.1 used to move closely with the prosecutrix as a friend. During their temporary absence he used to visit their house. She came to know through the prosecutrix that, accused No.1 had developed sexual relationship with her and further induced her on the pretext of love and marriage by making her to surrender to his sexual desire. She also deposed that, accused No.1 promised the prosecutrix to marry her by convincing his parents, as such the prosecutrix who believed the same had participated in sexual intercourse with him. When accused No.1 refused to marry the prosecutrix by advising her to report the matter, when accused Nos.2 and 3 beat her then she went and lodged police complaint.
31. As per the case of prosecution it is P.w.10 (Investigating Officer) who had examined P.ws.2 to 4 and L.ws.4 to 6 (T.Somaiah, P.Sundraamma and
K.Bharathamma) by recording their Sec.161 Cr.P.C statements. During the cross-examination of P.w.3 and as well as P.w.10 (Investigating Officer), nothing was elicited by the defence counsel to prove that, P.w.3 has got false motive to implicate the accused in the present case. Undoubtedly P.ws.2 and 3 are the circumstantial witnesses. However their evidence is corroborative with the evidence of the prosecutrix relating to the fact that, on the promise of marriage made by accused No.1, the prosecutrix developed sexual relationship with him and when accused No.1 refused to marry the prosecutrix, then she has resorted to lodge police complaint against him.
Hence, the decision relied upon by defence counsel i.e., P.Gangadhar v/s State of A.P referred supra does not apply to this case.
32. It is an established principle of law that the sole testimony of the prosecutrix in rape cases is itself sufficient to base conviction but if for any reasons the court is hesitant to place reliance of her testimony. Then only it may look for evidence which may lend assurance to her testimony. The evidence of P.w.5 who is shown as one of the eyewitness reveals that, she has given her house i.e., first floor on rent in 2012 to Shradha speech therapy when continued its office upto 2014. At that time the prosecutrix used to work
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as assistant in that speech therapy center. Accused No.1 used to come to speech therapy center during that period, as such P.w.5 had seen him. When she enquired the prosecutrix about his visit, then the prosecutrix told her that on account of their friendship he is coming to that place. As per the version of the prosecutrix even in that speech therapy center accused No.1 had participated in sexual intercourse with her. From the evidence of P.w.10 (Investigating Officer) it is seen that, though he had examined P.w.5 and recorded her statement, he did not prepare any scene of offence panchanama at that place. Thus from the evidence of P.w.5 also it is established by the prosecution that, accused No.1 used to move closely with the prosecutrix and he used to visit her working place from 2012 to 2014 i.e., prior to lodging of the complaint. The learned defence counsel failed to cross examine P.w.5 with regard to her evidence. Moreover he could not elicit from the mouth of P.w.10 (Investigating Officer) that, P.w.5 is an interested witness to depose falsely against the accused. Then in such case it can be clearly held that, in spite of maintaining close relationship with the prosecutrix by accused No.1 for a period of three years prior to lodging of the complaint,, he had totally denied the same which itself reveals that, his defence is not genuine.
33. To prove the sexual relationship between the prosecutrix and accused
No.1, the prosecution has examined doctor N.Kamala as P.w.8 in the present case. According to her, on 04.08.2015 basing on the requisition given by
Circle-Inspector of police, Kodad Rural, she has examined the prosecutrix at 11.30 AM in their hospital and found no external or internal injuries. However she has collected two smears and sent them for FSL analysis. As per the FSL report vide Ex.P5 ―Semen and spermatozoa are not detected on item Nos.1 and 2.‖ She has issued her final opinion as in Ex.P6 dated 18.09.2015 opining that, ―There are no positive signs of recent intercourse.‖ During her cross- examination P.w.8 admitted that, the prosecutrix did not disclose to her about the name of the person who committed sexual assault against her except stating that, he is a known person. She also admitted that, the prosecutrix did not state to her that the said known person had committed forcible sexual
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intercourse with her. By relying on her evidence it is contended by the defence counsel that, the prosecution failed to prove the sexual relationship between the prosecutrix and accused No.1. But the said contention of the defence counsel is quite unsustainable because not disclosing the name of accused
No.1 to the Medical Officer does not mean that, the prosecution case is totally false. Because there might be any number of reasons for which the prosecutrix might have not disclosed the name of that known person to P.w.8.
However by that time i.e., prior to her medical examination, the prosecutrix had already lodged police complaint against accused Nos.1 to 3 by contending that, accused No.1 had cheated and exploited her sexually on the false promise of marriage. Hence, merely on the ground that, the prosecutrix failed to state the name of accused No.1 to the Medical Officer, her testimony before the court cannot be doubted.
34. P.w.8 admitted that, as per her opinion there was intercourse between the prosecutrix and known person for a period of six months prior to her examination. In such case the detection of Semen and spermatozoa on the glass slides sent for FSL is not possible and on that ground it cannot be held that, ―Lack of medical evidence to prove the sexual assault results in extending benefit of doubt to the accused.‖ Generally, Rape cases falling under misconception of fact, differs from the rape cases falling under the other descriptions provided under section 375 of Indian Penal Code. If the offence of rape is committed against woman on a particular day of incident and immediately if the matter is reported to the police and if the victim is medically examined after that alleged incident, then definitely there would be chance of collecting medical evidence to prove forcible sexual assault committed against a woman. But in rape cases falling under misconception of fact, there would be no forcible sexual assault because in such cases the victim generally would consent for sexual act however based upon the misconception of fact i.e., false promise of marriage or false representations made by the accused to obtain consent from the victim.
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35. In the present case undoubtedly there is no forcible sexual relationship or sexual assault against the victim/prosecutrix as such the medical evidence has no significance in arriving at the guilt of the accused No.1. However from the evidence of P.w.8 (Medical Officer) it can be seen that, after lodging of the complaint by the prosecutrix she was referred by the police for medical examination and at that time she admitted about her sexual relationship with known person and during the cross-examination of P.w.8, nothing was elicited by the defence counsel to prove that, P.w.8 has issued false certificate as in Ex.P6 without examining the prosecutrix on 14.08.2015.
Thus, it is established by prosecution that prosecutrix had sexual relationship as alleged by her.
36. In support of prosecution, one M.Sandhya i.e., P.w.6 is (who is said to be the eyewitness) also examined and her evidence reveals that, on 27.03.2015 at 7.30 PM, accused Nos.2 and 3 who are the wife and husband came to the house of P.w.2 and disputed with her and her family members.
At that time the prosecutrix was also present. On completion of that dispute, when she enquired with P.w.2 then she came to know that, there is love affair in between the prosecutrix and accused No.1 and on account of that, accused No.1 had exploited the prosecutrix sexually and thereafter cheated her by refusing to marry her. She further deposed that, at the time of alleged dispute, accused Nos.2 and 3 had not only abused P.ws.1 and 2 but they have also beat the prosecutrix by catching hold of her hair. As per her evidence, in 2015 she used to run tailoring shop opposite to the house of
P.w.2 in Azad Nagar, Kodad. It is the contention of defence counsel that, as per the rough sketch map i.e., Ex.P4 the tailoring shop of P.w.6 is not shown surrounding the scene of offence house as such she is a planted witness and thereby her evidence cannot be relied upon. But the said contention of the defence counsel is quite unsustainable because as per the evidence of P.w.10 (Investigating Officer), on 04.08.2015 he had conducted scene of offence panchanama at the house of father of the prosecutrix i.e., H.No.11-108/2,
Gandhinagar, Kodad in the presence of P.w.7 and L.w.11 (S.Lingaiah) as
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panch witnesses and prepared scene of offence panchanama as in Ex.P3 and drawn rough sketch map as in Ex.P4. From the evidence of the prosecutrix/P.w.1, her sister i.e., P.w.2 and of P.w.6 (eyewitness) it is seen that, attack of accused Nos.2 and 3 on the prosecutrix took place at the house of P.w.2 in Azad Nagar, Kodad, but not at the scene of offence house belonging to the father of the prosecutrix. As no panchanama was conducted at the house of P.w.2 regarding the alleged incident which is said to have taken place on 23.07.2015, the question of depicting the house of P.w.6 in
Ex.P4 (rough sketch map) does not arise. Moreover the house of Somaiah i.e., scene of offence house herein is situated in Gandhi Nagar, Kodad, whereas the house of P.w.2 is situated in Azad Nagar, Kodad. If P.w.10 had conducted any scene of panchanama at the house of P.w.2 then definitely the rough sketch prepared at that place would reflect the house of P.w.6. Hence, on that ground, it cannot be held that P.w.6 is a planted or interested witness to depose falsely against the accused.
37. The evidence of P.w.10 (Investigating Officer) is corroborated with the evidence of P.w.7 who is said to be one of the panch witness for the scene of offence panchanama and rough sketch map vide Exs.P3 and P4. According to
P.w.7, at the time of conducting panchanama at the house of the prosecutrix in Gandhinagar area, she was very much present and on enquiry with her, they came to know that, there is love affair between the prosecutrix and accused No.1. On account of which they had also participated in sexual intercourse in view of the promise of marriage made by accused No.1 but subsequently accused No.1 denied to marry her by stating that, his parents are not agreeing for the marriage. During the cross-examination of P.w.7 nothing was elicited by the defence counsel to disprove the presence of P.w.7 at the time of conducting alleged scene of offence panchanama as in Ex.P3.
As per the evidence of P.w.9 (one of the Investigating Officer) on 03.08.2015 he received written complaint as in Ex.P1 from the prosecutrix and basing on it he registered the case in Cr.No.172/2015 vide Ex.P7 First Information
Report for the offences under sections 417,420 and 376 of Indian Penal
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Code. During his cross-examination he admitted that, in Ex.p1 the prosecutrix did not mention specifically that, the accused had forcibly committed rape on her and also of the fact that, on account of the complaint given by the prosecutrix the accused lost his job and so also there is no reference about the panchayath held on 23.07.2015. He also admitted that in
Ex.P1 the prosecutrix did not mention the word of cheating. However his further evidence further reveals that the prosecutrix mentioned in her complaint i.e., Ex.P1 that, the accused had made false promise of marriage to her.
38. Thus from the evidence of P.w.9 it is established by the prosecution that, Ex.P1 (i.e., written complaint) was lodged by the prosecutrix herein and basing on which the criminal proceedings herein are launched against the accused Nos.1 to 3. Though there is no reference about the alleged incident
dated 23.07.2015 in the complaint i.e., Ex.P1, in her Sec.161 Cr.P.C
statement, the prosecutrix had stated to the police about the alleged visit of accused Nos.1 to 3 to the house of P.w.2 on 23.07.2017 and also the attack made by accused Nos.2 and 3 against her. Even the Sec.161 Cr.P.C statement of P.w.2 and of P.w.6 reveals about the occurrence of the alleged incident
dated 23.07.2015 at the house of P.w.2. Moreover, there is also reference in
the charge sheet about the alleged incident dated 23.07.2015. However, the
Investigating Officers i.e., P.w.10 and L.w.8 (M.Sridhar Reddy, Inspector of police) did not make any endeavour to conduct scene of offence panchanama at that place. But merely on that ground, it cannot be held that the testimony of P.w‘s.1,2 and 6 regarding the alleged incident is an improvised version and for the first time they had deposed about the occurrence of the incident before this court.
39. Thus, having failed to elicit any false motive on behalf of the prosecutrix to implicate the accused No.1 and his parents in the present case, it can be held that, the prosecutrix herein has passed the test of sterling witness whose evidence requires to be given much credence to believe the case of prosecution. From the evidence of the prosecutrix and
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from the circumstantial evidence available on record it is established by the prosecution that, there is not only love affair between the prosecutrix and accused No.1 but they have also indulged in sexual relationship which continued for a period of three years prior to lodging of the complaint.
According to the prosecutrix, as accused No.1 promised to marry her by convincing his parents she believed him and consented for sexual relationship with him. Thus as per Sec.90 of Indian Penal Code the consent given by the prosecutrix/victim herein is under misconception of fact i.e., false promise of marriage. The second part of that section deals with the point of view of the accused that, he has knowledge or reason to believe that the consent was given by the prosecutrix under fear or misconception of fact. As accused No.1 is totally denying his relationship with the prosecutrix on one hand and moreover contending on the other hand it is a consensual sex, it can be clearly held that, he had made false promise of marriage only with a view to obtain the consent of the prosecutrix to have sexual relationship with her. If really his promise of marriage was genuine then definitely in spite of refusal by his parents he would have married the prosecutrix, as there are no caste differences between them. The very fact that, accused No.1 refused to marry the prosecutrix on the ground that, his parents are not agreeing for the marriage, itself reveals that, since beginning accused No.1 with a dishonest intention made false representation of marriage in order to deceit the prosecutrix.
40. As the prosecutrix which stood the cross-examination at length conducted by the defence counsel, without giving any scope to draw any adverse inference with regard to any false motive on her part to implicate accused No.1 in this case by putting her dignity including the honour of her family in the society at risk, this court is of the opinion that, the twin requirements of Sec.90 of Indian Penal Code i.e., from the point of view of the victim and from the point of view of the accused are cumulatively satisfied in the present case. Hence, this court has no hesitation to hold that, ‗no consent‘ as envisaged under section 90 of Indian Penal Code existed at
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the time of development of the alleged sexual relationship in between prosecutrix and accused No.1.
41. Therefore the consent given by the prosecutrix cannot be said to be a valid consent and definitely it falls under misconception of fact as provided under section 90 of Indian Penal Code. Moreover even as per the decision relied upon by the learned Addl.Public Prosecutor i.e., ―Anurag Soni v/s
State of Chattisgarh referred supra when it is proved that, the accused has held false promise and if he had not held that promise, then the victim would not have permitted him for sexual intercourse then such consent is not valid as it is obtained under misconception of fact.‖ Hence, the offence under section 376 of Indian Penal Code is clearly made out by the prosecution against accused No.1
POINT (b) 42 For the offence charged under section 417 IPC against accused No.1?
43. Chapter XVII of I.P.C. deals with offences against property. Sec. 415 to 420 of I.P.C deals with various offences of cheating. Sec. 417 of I.P.C.
deals with punishment for cheating. The Definition of cheating is provided
U/s.415 of I.P.C.
This section consists of two parts. The essential ingredients of sec. 415 I.P.C are i.e., First part consists of
1. Accused deceives some person.
2. The accused induced that person by deception,
3. The above inducement was fraudulent and dishonest.
4. The person so induced delivered some property to or consented to the retention of some property by any person.
44. The second part consists of
1.The accused deceived some person.
2.The accused thereby induced that person.
3.Such inducement was intentional
4.The person so induced did or omitted to do something.
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5.Such act or omission caused or was likely to cause damage or harm to the person induced in body, mind, reputation or property.
45. So, to constitute the offence of cheating there must be deception and in the first part, the accused has to use fraudulent and dishonest means to induce the victim and as a result, the victim is to deliver the property. In the second part, there is no delivery of property.
46. From the evidence of prosecution witnesses available on record it is established by the prosecution that, accused No.1 had induced the prosecutrix on the pretext of love and marriage. As per the evidence of prosecutrix only on the promise of marriage made by accused No.1 she consented for sexual relationship. Merely because she too loved accused No.1 thereafter and consented for sexual relationship it cannot be held that, there is no inducement on behalf of accused No.1. From the discussion made in point No.A this court already held that, the promise of marriage by accused
No.1 to the prosecutrix since beginning is fraudulent and dishonest. To constitute the offence of cheating the fraudulent intention must exist since beginning which further leads to inducement of the victim thereby making her to do or omit to do a particular thing and on account of such act or omission she is likely to suffer damage or harm in her body, mind, reputation of property. On account fraudulent inducement made by accused No.1 i.e., false promise of marriage including his love, the prosecutrix had acted upon his inducement which resulted in development of sexual relationship by her with accused No.1 and subsequently on account of his refusal to marry her, she has suffered harm in her body, mind and as well as her reputation in the society. The fraudulent intention of accused No.1 is existing since beginning and it is still continuing as he had totally denied his relationship with the prosecutrix at any point of time. If really there is no such type of relationship between the prosecutrix and accused No.1 then there would be no reason for his parents i.e., accused Nos.2 and 3 to attack the prosecutrix by alleging that, she has co-habited with his son i.e., accused No.1. Therefore, this court is of the opinion that, the ingredients of second part of Sec.417 of Indian
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Penal Code relating to cheating, are also made out by the prosecution against accused No.1 in the present case. Accordingly, this point is answered.
POINT (c)
47. For the offence charged under sections 420 of IPC against accused No.1?
48. To attract the ingredients under section 420 of Indian Penal Code the prosecution has to prove that, whoever fraudulently or dishonestly induces the person to deliver any property, to any person, or to may alter or destroy the whole or any party of valuable security or anything which is signed or sealed and which is capable of being converted into valuable security.
49. In the present case this court has already held supra i.e., in point
No.(A) that the accused under misconception of marriage had fraudulently and dishonestly induced the prosecutrix to participate in sexual intercourse with him and thereby he was found guilty for the offence under section 376 of Indian Penal Code. As such finding the accused guilty for the offence under section 420 of Indian Penal Code in this case does not arise as he is already found guilty for his dishonest and fraudulent inducement for the grave offence under section 376 of Indian Penal Code. Accordingly, this point is held that, the offence under section 420 of Indian Penal Code is not attracted against the accused.
POINT (d)
50.For the offence charged under section 504 of Indian Penal Code against accused No.3?
51. Sec.504 of Indian Penal Code deals with intentional insult to provoke breach of piece. To attract this offence, the prosecution has to prove that, the accused had intentionally insulted the particular person i.e., victim thereby giving provocation to her to break public peace or to commit any other offence. It further provides that, the person/accused who is intentionally insulting must have knowledge that, shch provocation will make the other person to break public peace or to commit any offence.
52. As per the version of the prosecutrix herein, on 27.07.2015 accused
No.1 along with accused Nos.2 and 3 came to the house of P.w.2 and they
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have abused her in filthy language. Though Ex.P1 do not reflect the visit of accused Nos.1 to 3 to the house of P.w.2 on 27.07.2015 it cannot be held to be a improvised version as contended by the defence counsel because as discussed in point-A, the prosecutrix had deposed about the alleged occurrence of incident on 23.07.2015, while her statement was recorded by the police under section 161 Cr.P.C.
53. According to P.w.2, on 23.07.2015 accused No.3 by entering into her house commented that, P.w.2 is intending to earn money by making her sister i.e., prosecutrix to co-habit with her son i.e., accused No.1 by that time the prosecutrix was present in the Kirana shop opposite to her house and on hearing the voice of accused No.3, the prosecutrix rushed to her house and on account of shouting of accused No.3 people started gathering. According to P.w.2, when she denied about relationship between the prosecutrix and accused No.1, then accused No.1 started shouting in a louder voice by abusing them in filthy language. She further deposed that, accused No.3 also abused her husband by advising him to send P.w.2 and the prosecutrix to co- habit with other persons so that, he could earn sufficient money. But her version to that affect is not corroborated by the evidence of the prosecutrix and as well other prosecution witnesses. Moreover it is not reflected even in
Ex.P1. The evidence of P.w.2 do not reveal the exact words used by accused
No.3 to provoke them. Moreover she also failed to state the names of the person who were said to have been gathered at her house on the hearing dispute. Though P.w.6 deposed that, on 23.07.2015 at 7.30 PM accused
Nos.2 and 3 came to the house of P.w.2 disputed with her and her family members, it do not reveal about the words used by accused Nos.2 and 3 to insult the prosecutrix or her sister intentionally on that day.
54. Though the visit of accused Nos.2 and 3 to the house of P.w.2 on 23.07.2015 is established by the prosecution, there is no sufficient evidence on record to prove the alleged insult said to have been made by them and so also of the fact that, the words used by accused Nos.2 and 3 had resulted in
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provocation of breach of peace. Mere questioning of the relationship between the prosecutrix and accused No.1 by the parents of accused No.1 i.e., accused Nos.2 and 3 does not amount to intentional insult and in the absence of the evidence of prosecutrix to corroborate the evidence of P.w.2 relating to the abuse made by accused No.2 on the alleged date of incident and so also by the alleged eyewitnesses to the incident, this court is of the opinion that the essential ingredients for the offence under section 504 of
Indian Penal Code are not made out by the prosecution against accused
No.3. As such accused No.3 is entitled for benefit of doubt for the above said offence.
POINT (e) 55. For the offence charged under section 323 of Indian Penal Code against accused No.3?
56. To attract the ingredients under section 323 of Indian Penal Code it has to be proved by the prosecution that, the accused had caused hurt to the victim voluntarily except under grave and sudden provocation. The act of the accused must be made with an intention to cause hurt or with knowledge that he is likely thereby to cause hurt to the victim.
57. In the present case according to the prosecutrix on 23.07.2015 accused Nos.2 and 3 had beat her with their hands indiscriminately at the house of P.w.2 by dragging her out from that house. Her evidence do not reveal that, accused No.1 was also indulged in that act. According to her, accused No.1 was standing outside that house and it is accused Nos.2 and 3 who beat her with hands indiscriminately. As the alleged incident said to have taken place at the house of P.w.2, she is a direct eyewitness to the alleged incident. According to P.w.2 also, accused No.3 was trying to drag prosecutrix out of their house by catching hold of her hair and dress and finally it is accused Nos.2 and 3 who beat the prosecutrix on that day. Then she has rescued the prosecutrix from their hands. The evidence of P.w‘s.1 and 2 i.e., the prosecutrix and her sister, do not reveal about the overt act of accused
No.1 if any against the prosecutrix on that day. Their evidence is
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corroborative with regard to the overt acts of accused Nos.2 and 3 against the prosecutrix i.e., beating with hands. Though it was suggested by the defence counsel that, the entire facts stated by P.w.2 before the court were not stated at the time of her Sec.161 Cr.P.C examination, during the cross- examination of P.w.10, he failed to elicit any material fact to prove that, the evidence of P.w.2 is full of material omission and she is an interested witness to depose falsely against accused Nos.1 to 3.
58. No doubt there is no medical certificate regarding the alleged sustaining of injuries by the prosecutrix in the hands of accused Nos.2 and 3 on 23.07.2015. P.w.10 during his cross-examination deposed that, he had not sent the parents of the prosecutrix to the hospital for medical examination as the alleged incident i.e., beating of parents of the prosecutrix by accused No.1 took place on 23.07.2015 and as on the date of receiving the complaint no injuries were found on the body of P.w.3 and L.w.4 (Somaiah). It is not the case of prosecution that, accused Nos.1 to 3 had beat the parents of the prosecutrix also on the date of alleged incident. Then in such case the question of referring them to the hospital does not arise.
59. As the evidence of P.w‘s.1 and 2 is corroborative with the evidence of
P.w.6 relating to the overt acts of accused Nos.2 and 3, relating to the fact that they have beat the prosecutrix on the alleged date of offence by catching hold of her hair and it is established by the prosecution that she is an eyewitness to the alleged incident, their evidence is sufficient to be acted upon in order to arrive at the guilt of accused Nos.2 and 3 for the offence under section 323 of Indian Penal Code. In the absence of cogent material on record to prove that, P.w.6 is a planted witness, her evidence coupled with the evidence of the prosecutrix and her sister i.e., P.w.2 clearly establishes the fact that, accused Nos.1 to 3 had visited the house of P.w.2 on the alleged date of offence i.e., 23.07.2015 and both accused Nos.2 and 3 had intentionally and voluntarily caused hurt to the prosecutrix by beating her
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with their hands. Hence, the offence under section 323 of Indian Penal Code is made out by the prosecution against the accused No.3.
60. In the result, the accused No.1 is found guilty for the offences punishable under section 376 and 417 of Indian Penal Code and accordingly, he is convicted for the said offences under section 235 (2) of Cr.P.C. Accused
No.3 is found guilty for the offence under section 323 of Indian Penal Code and accordingly she is convicted under section 255 (2) Cr.P.C. Accused No.1 is found not guilty for the offence punishable under section 420 of Indian
Penal Code and accused No.3 is found not guilty for the offence under section 504 of Indian Penal Code and accordingly they are acquitted for the said offence under section 248 (1) Cr.P.C and 255 (1) Cr.P.C respectively.
Dictated to stenographer, corrected and pronounced by me in the open Court on this
the 2 nd day of August 2021.
Special Sessions Judge for Fast Tracking the Cases Relating to Atrocities Against Women, Nalgonda.
Q U A N T U M O F S E N T E N C E
61. When the accused No.1 is questioned about the quantum of sentence that can be imposed against him, he stated that, already he got married and blessed with a male child aged one year at present and they are depending upon him for their livelihood. Hence, prayed to take lenient view with regard to the sentence that can be imposed against him.
62. When the accused No.3 is questioned about the quantum of sentence that can be imposed against her, she stated that, she is aged 65 years and suffering from old age ailments. Hence, prayed to take lenient view with regard to the sentence that can be imposed against her.
63. Upon hearing the plea submitted by the accused No.1, this court is of the opinion that, he is not entitled for any lenient view with regard to the sentence that can be passed against him. However with regard to the
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plea submitted by accused No.3 and the nature of offence proved against her this court is of the opinion that, she is entitled for lenient view with regard to the sentence that can be passed against her.
64. In the result, the accused No.1 is found guilty for the offence punishable under section 376 of Indian Penal Code and accordingly, he is convicted for the said offence under section 235 (2) Cr.P.C. He is sentenced to undergo Rigorous imprisonment for a period of Ten years (10) and to pay fine of Rs.50,000/- for the offence under section 376 Indian Penal Code. In default of payment of fine amount, he shall suffer further Rigorous Imprisonment for a period of three months. He is also sentenced to undergo Rigorous Imprisonment for a period of one year (01) for the offence under section 417 Indian
Penal Code.The fine amount paid by the accused No.1, shall be given to the victim/prosecutrix towards compensation, after expiry of appeal time. Both the above sentences of accused No.1 shall run concurrently.
The remand period of the accused i.e., from 05.08.2015 to 01.09.2015 (28 days) shall be set off under section 428 Cr.P.C. The accused No.1 is found not guilty for the offence punishable under section 420 of IPC and accordingly he is acquitted for the said offence under section 235 (1)
Cr.P.C.
65. Accused No.3 is found guilty for the offence punishable under section 323 of Indian Penal Code and accordingly she is convicted under section 255 (2) Cr.P.C and sentenced to pay fine of Rs.1,000/- (one thousand only) for the said offence. In default of payment of the fine amount she shall undergo simple imprisonment for a period of one month. Accused No.3 is found not guilty for the offence under section 504 of Indian Penal Code and accordingly she is acquitted for the said offence under section 255 (1) Cr.P.C. The bail bonds of the accused
Nos.1 and 3 shall stands cancelled immediately.
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66. The accused Nos.1 and 3 are intimated about their right to appeal
before Hon‘ble High Court and they are furnished the copy of Judgment
free of cost.
Typed to my dictation to Stenographer, corrected and pronounced by me in the open Court on this the 2 ND day of August 2021.
Special Judge Fast Track Cases
Relating to Atrocities Against Women, Nalgonda.
APPENDIX OF EVIDENCE
For Prosecution For Defence
-NIL-
PW.1:Prosecutrix (Name hidden) (Defacto–complainant/victim) Pw.2:Meesala Sunitha (Circumstantial witness and Elder sister of Prosecutrix) Pw.3:Thadakamalla Anjamma (Circumstantial witness and Mother of prosecutrix ) Pw.4:Pandiboti Sundaramma (Circumstantial witness) Pw.5: Nagubandi Lalitha (Circumstantial witness) Pw.6:Manupuri Sandhya (Circumstantial witness) Pw.7 Polampalli Srinivasa Rao (Panch witness) Pw.8 Kr.N.Kamala (Medical Officer who examined the prosecutrix Pw.9:D.Suresh Kumar (Investigation Officer who issued First Information Report) Pw.10:P.Madhusudan Reddy (Investigation Officer who arrested the accused)
EXHIBITS MARKED
For Prosecution Defence
NIL Ex.P1:Complaint of given by P.w.1 dated 03.08.2015. Ex.P2:Sec.161 Cr.P.C statement of P.w.4 Ex.P3:Scene of offence panchanama dated 04.08.2015 at 9.30 AM Ex.P4:Rough sketch map Ex.P5:FSL Report dated 10.09.2015 Ex.P6:Final Opinion Report issued by P.w.8 dated 18.09.2015 Ex.P7:Original First Information Report dated 03.08.2015 Ex.P8:Potency certificate of accused No.1 dated 05.08.2015 issued by P.w.10
MATERIAL OBJECTS MARKED
NIL
Special Sessions Judge for Fast Tracking the Cases Relating to Atrocities Against Women, Nalgonda