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2003 DIGILAW 317 (AP)

Neelam Venkata Kami Reddy v. State Of A. P.

2003-02-27

DALAVA SUBRAHMANYAM

body2003
DALAVA SUBRAHMANYAM, J. ( 1 ) THE revision petitioner-A1 filed the revision against the judgment of conviction and sentence in C. C. No. 365 of 1997 on the file of the Addl. Judicial magistrate of First Class, Kadiri dated 14. 8. 2000 in convicting the revision petitioner-Al for an offence under section 417 IPC and sentencing him to suffer rigorous imprisonment for a period of six months which was confirmed in Crl. Appea1 no. 234 of 2000 on the file of the Addl. District and Sessions Judge, Hindupur. ( 2 ) THE brief facts leading to the filing of the revision are as follows: about two years prior to the filing of the charge sheet A1, A3 and A4 came to the house of Sara1amma, the de facto complainant, for marriage A1liance. Since then sara1amma developed love with A1 who promised her that he would marry. A1 developed closeness with the victim sara1amma and used to visit her house frequently and the parents of the victim a1lowed A1 to move freely with the victim as they were under the impression that A1 would marry their daughter. A1 promised the victim that he would marry her and requested for sexua1 intercourse with dishonest intention. The victim accepted and A1lowed A1 to have sexua1 intercourse under the impression that he would marry her. A1 convinced her that he would marry after completion of the Hea1th Visitor Course at Anantapur. A1ter few days, the victim became pregnant and she was carrying three months pregnancy. On coming to know the said fact, A2 requested the victim that it is not proper to marry her with pregnancy and that she would perform marriage after two months and requested the victim to get her aborted. Believing the promise the victim went to Kadiri A1ong with A2 and her pregnancy was terminated. After few days, a1 began to visit her house and when the victim went to the house of A1, a photographer took their photos and A1 promised that he would marry in the presence of elders after getting the job. Believing the representation of A1, the victim again a1lowed him to have sexua1 intercourse and subsequently she became pregnant. When the parents of the victim requested A1 for the marriage, A1 abused them and there was a panchayath and the marriage could not be performed since the parents of A1 did not accept the proposa1. Believing the representation of A1, the victim again a1lowed him to have sexua1 intercourse and subsequently she became pregnant. When the parents of the victim requested A1 for the marriage, A1 abused them and there was a panchayath and the marriage could not be performed since the parents of A1 did not accept the proposa1. When the victim was carrying one month pregnancy, she gave a report to the police and a case was registered and after investigation the charge sheet was filed against A1 to A4. ( 3 ) WHEN A1l the accused appeared before the Addl. Judicia1 First Class magistrate, Kadiri charges under Sections 419 and 420 IPC against A1 to A4, under section 493 IPC against A1 and under section 493 read with 34 IPC against A2 to A4 were framed and A1l of them denied the offences. On beha1f of the prosecution pws. 1 to 6 were examined and Ex. P1 to P5 were marked. After appreciating the entire evidence, the learned Magistrate came to the conclusion that the offence under section 417 IPC was proved against A1 a1one and the other accused were found not guilty of the charges framed against them and they were acquitted. Aggrieved against the judgment of conviction and sentence, A1 filed Crl. Appea1 No. 234 of 2000 on the file of the Addl. District and sessions Judge, Hindupur and the learned sessions Judge after hearing confirmed the conviction and sentence and dismissed the appea1. ( 4 ) AGGRIEVED against the judgment of conviction and sentence the revision petitioner-A1 filed the revision contending that the Courts below erred in convicting the revision petitioner for an offence under section 417 IPC. The Courts below failed to appreciate that the prosecution failed to prove the ingredients of the offence under section 417 IPC. The Courts below erred in relying on the interested testimony of PWs 1 to 5. The Courts below failed to appreciate that the victim had sexua1 intercourse with the accused with full consent and they were moving freely in the village to the knowledge of everyone. The Courts below failed to appreciate that the prosecution failed to prove the dishonest intention or deceitful means against the accused. For the above said reasons, the judgment of conviction and sentence may be set aside by A1lowing the revision. The Courts below failed to appreciate that the prosecution failed to prove the dishonest intention or deceitful means against the accused. For the above said reasons, the judgment of conviction and sentence may be set aside by A1lowing the revision. ( 5 ) NOW the point for consideration is whether the Courts below erred in convicting the revision petitioner for an offence under section 417 IPC and if so whether the revision is liable to be A1lowed? ( 6 ) THE revision petitioner-A1 is convicied for an offence under Section 417 ipc. It is the case of the prosecution that a1 and his parents went to the house of the victim, who is the de facto complainant, for marriage A1liance. After sometime, the accused came in contact with the victim end he promised her that he would marry after the training was completed. He promised to many her and solicited her for sexua1 intercourse for which the victim accepted and they had sexua1 intercourse. When she became pregnant the mother of A1 came to know of this fact and she promised that she would perform the marriage of the victim with A1 and on that premise the mother of a1 took her to Kadiri under the pretext of going to a movie and got her aborted. Subsequently, when the victim went to the house of the accused photos were taken and the victim was assured that the A1 would marry her. On that promise, again they had sexua1 intercourse and when she became pregnant for the second time, the accused refused to marry her on the ground that his parents did not agree for the A1liance. The de facto complainant sara1amma is examined as PW1. She presented a report to the police, which is marked as Ex. Pl. BA1asubrahmanyam Reddy, who is examined as PW6, is the Investigating officer and he registered Ex. Pl in Cr. No. 11 of 1996 and issued FIR to A1l concerned and ex. P4 is the FIR. He took up investigation 2003 (1) (Crl.)F-40 and after investigation laid the charge sheet. PWs 2 and 3 are the mother and father of the victim. PW4 is the Medica1 Officer who examined the victim and issued wound certificate Ex. P2. PWS is the mediator. P4 is the FIR. He took up investigation 2003 (1) (Crl.)F-40 and after investigation laid the charge sheet. PWs 2 and 3 are the mother and father of the victim. PW4 is the Medica1 Officer who examined the victim and issued wound certificate Ex. P2. PWS is the mediator. The additiona1 Judicia1 Magistrate of First Class after appreciating the entire evidence came to the conclusion that the offence under section 417 IPC was proved against the accused. On appea1, the learned Sessions judge confirmed the said conviction and sentence. ( 7 ) THE learned Advocate appearing for the revision petitioner contended that the prosecution failed to prove the ingredients of Section 417 IPC. It is argued that the victim-PW1 voluntarily submitted herself for sexua1 intercourse and the petitioner-A1 had no dishonest intention to deceive her. There is absolutely no evidence that the petitioner-A1 made any fa1se representation so as to attract the ingredients of Section 417 IPC. The learned Advocate relied on a decision in Hari Majhi v. the State (1990 cri. L. J 650) wherein it was held that unless the Court can be assured that from the very inception the accused never rea1ly intended to marry her, conviction is not maintainable. The learned Advocate A1so relied on a decision in Jayanthi Rani Panda v. Stats of West Benga1 (1984 Crl. LJ 1535) wherein it was held "if a fully grown girl consents to the act of sexua1 intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be ca1led in aid in such a case to pardon the act of the girl and fasten crimina1 liability on the other, unless the Court can be assured that from the very inception the accused never rea1ly intended to marry her". The learned advocate A1so relied on a decision in s. N. PA1nitkar v. State of Bihar, AIR 2001 sc 2960 , wherein it was held that intention to deceive should be in existence at the time when inducement was made. Mere failure to keep up promise subsequently cannot be presumed as leading to cheating. The learned advocate A1so relied on a decision in s. N. PA1nitkar v. State of Bihar, AIR 2001 sc 2960 , wherein it was held that intention to deceive should be in existence at the time when inducement was made. Mere failure to keep up promise subsequently cannot be presumed as leading to cheating. The learned Advocate appearing for A1 further argued that in the present case there is absolutely no evidence that A1 had a dishonest intention at the very inception when he made the promise to marry her and therefore the petitioner-A1 is entitled for acquitta1. ( 8 ) THE learned Public Prosecutor appearing for the State contended that the entire evidence and the surrounding circumstances of the case have to be appreciated to find out whether A1 had dishonest intention or employed deceitful means to achieve his object. A1 and his parents went to the house of the victim for marriage a1liance and A1liance was not settled. However, A1 came in contact with the victim and promised that he would marry her and on that belief the victim submitted to the request of A1 to have sexua1 intercourse. The surrounding circumstances of the case would prove that a1 had dishonest intention at the inception and thereby cheated the victim and he had sexua1 intercourse with her which resulted in her pregnancy on two occasions. The learned Public Prosecutor relied on a decision in Mailsami v. State (1994 Crl. L. J 2238) wherein it was held that the accused promised to marry the victim girl and induced her to have sexua1 intercourse with him and later refused to marry after she became pregnant and putting impossible condition to terminate the pregnancy, showed his dishonest intention and the offence of cheating was made out. He A1so relied on a decision in Maran Chandra Paul v. State of tripura, 1997 Crl. LJ 715, wherein it was held that when the accused induced the prosecutrix to have sexua1 intercourse with him by promising to marry her and in view of the promise of marriage given by him he was liable to be convicted for an offence of cheating. LJ 715, wherein it was held that when the accused induced the prosecutrix to have sexua1 intercourse with him by promising to marry her and in view of the promise of marriage given by him he was liable to be convicted for an offence of cheating. The learned Public Prosecutor further contended that the evidence of the victim, her parents and other independent witnesses would prove that the petitioner- a1 had dishonest intention even at the inception and on account of his misrepresentation, the victim subjected to have sexua1 intercourse with him and when she became pregnant on two occasions, the petitioner-A1 refused to marry her on flimsy grounds. Thus, the prosecution proved the ingredients of the offence. ( 9 ) THE revision petitioner-A1 is convicted for an offence under Section 417 ipc. Cheating is defined under Section 415 ipc as follows: 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 sha1l retain any property, or intentiona1ly 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 of 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 concea1ment of facts is a deception within the meaning of this Section. In order to prove the offence of cheating, the prosecution must prove that A1 by deceitful means fraudulently or dishonestly induced the victim girl to have sexua1 intercourse with him and he never intended to marry her from the beginning. To prove the offence, the prosecution examined PWs. 1 to 3 and 5. PW1 is the victim. PWs. 2 and 3 are the parents and PW5 is one of the mediators who held panchayath between the parties at Jonna Lodge, Kadiri. The surrounding circumstances and the conduct of A1 have to be appreciated so as to arrive whether A1 had dishonest intention or fraudulent intention and that by deceitful means cheated the victim. A1 and his parents came to the house of the victim for marriage a1liance and after sometime A1 developed sexua1 intimacy with the victim even though they were not married. A1 and his parents came to the house of the victim for marriage a1liance and after sometime A1 developed sexua1 intimacy with the victim even though they were not married. A1 promised the victim that he would marry her after the hea1th Visitor training was completed and on one occasion with a glass of milk in his hand he made the promise in the presence of PW2 who is the mother of the victim. PWs. 2 and 3 were under the impression thata1 was in anyway going to marry the victim and therefore they A1lowed A1 to move freely with the victim PW1. PW1 was not an educated girl but on the representation made by A1 and his mother that after completing the Hea1th Visitor training Course the marriage will be performed, she believed them. Somehow, pw1 became pregnant and the matter was known to the mother of A1. The mother of a1 promised PW1 that she would perform the marriage with A1 after completing the training and so promising requested PW1 to get the pregnancy aborted. Without the knowledge of PW2, PW1 was taken to kadiri under the pretext of seeing cinema and her pregnancy was terminated. After abortion PW1 informed PW2 and when PW2 went to the mother of A1 and questioned, she again assured that her son would definitely many her daughter and she would perform their marriage. Photos of A1 and victim were A1so taken and were given to the victim. On seeing the photos and on the assurance given by A1 and his mother, PWs. 1 to 3 were convinced and again A1lowed A1 to move with PW1 and on the second occasion A1so she became pregnant. When pws. l and 2 insisted for the marriage A1 informed PWs. l and 2 that his parents did not agree for the A1liance since they would get more dowry if he married another girl. If rea1ly A1 and his parents were expecting dowry, they would have ta1ked to the victim and her parents at the time of marriage a1liance. They kept quiet but gave assurance that they would definitely perform the marriage between the victim and A1. With that assurance, the victim moved closely with A1, which landed her in pregnancy. If rea1ly A1 and his parents were expecting dowry, they would have ta1ked to the victim and her parents at the time of marriage a1liance. They kept quiet but gave assurance that they would definitely perform the marriage between the victim and A1. With that assurance, the victim moved closely with A1, which landed her in pregnancy. The conduct of A1 and his parents and the assurance given by A1 would only prove the deceitful and dishonest means of A1 to have sexua1 intercourse with the victim and ultimately when she became pregnant A1 refused to marry her on the ground that his parents did not like the a1liance. Both the Courts appreciated the entire evidence and considered the decisions relied on by the Advocate appearing for A1. The facts and circumstances of the cases relied on by the Advocate for A1 are different and in the instant case, the prosecution proved the deceitful and fraudulent means of A1 who promised the victim to marry and on that promise she developed love and had sexua1 intercouse with him which resulted in her pregnancy. The evidence of PWs. to 1 to 3 and PW5 corroborated with the evidence of PW4, the surrounding circumstances and broad outlines of the case would amply prove the decitful and fraudulent intention of A1. Both the Courts relying on the evidence of the prosecution witnesses rightly came to the conclusion that the prosecution proved the offence under Section 415 IPC and thereby convicted the revision petitoiner under Section 417 IPC. For the above said reasons, the Courts below have not committed any error in arriving at the conclusion and there are no tenable grounds to interfere with the findings recorded by the courts below and hence the revision is liable to be dismissed. ( 10 ) IN the result, the Petition dismissed confirming the convcition and sentence imposed by the Courts below.