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2024 DIGILAW 617 (TS)

Anthati Paramesh v. State of Andhra Pradesh

2024-08-30

K.SURENDER

body2024
ORDER : The revision petitioner was convicted for the offence under Sections 376 and 417 of the Indian Penal Code by the trial Court and confirmed in appeal by the Sessions Court. Aggrieved by the said confirmation of conviction, present revision is filed. CRIMINAL REVISION CASE No.1981 OF 2009 2. Briefly, the case of the victim girl-PW.2 is that she was aged around 14 years when the incident happened. The accused was residing adjacent to the house where PW.2 and her parents were residing. The accused used to go to the house of the victim frequently, in the absence of her mother, father and grand-mother, who used to go to coolie work. The accused used to convince her that he was loving her and he would marry her. On several occasions, the accused removed her clothes and laid on her and committed rape. Due to continued physical intimacy, her menstruation cycle stopped. When tested, she was pregnant. Even after becoming pregnant, the accused continued having intercourse with her. The accused promised to marry her. After PW.2 informed the accused about her pregnancy, he asked PW.2 not to disclose her pregnancy to anyone. Having come to know about the pregnancy, PW.1-father of the victim, mother of the victim and others called the accused for Panchayat with the village elders. Then the parents of the accused agreed to perform marriage of accused with PW.2, after delivery of the child. On 03.11.2004, PW.2 gave birth to a child in her seventh month of pregnancy and since it was a premature birth, the child died after 22 days. Thereafter, the issue was again taken up before the elders, but the accused refused to marry PW.2. Complaint was filed with the Police for the reason of having intercourse with PW.2 on the pretext of marriage and for making false promises from time to time. 3. On the basis of the complaint, police filed charge sheet for the said offences. Charges were framed against the accused by the learned trial Court. Having examined the father of the victim-PW.1, victim-PW.2 and other witnesses, the learned trial Judge recorded conviction. Though it was urged by the prosecution that the date of birth of the victim girl-PW.2 was 01.08.1991 and on the date of the offence, she was a minor, the Court did not place reliance on the bonafide certificate which was produced by the prosecution. Though it was urged by the prosecution that the date of birth of the victim girl-PW.2 was 01.08.1991 and on the date of the offence, she was a minor, the Court did not place reliance on the bonafide certificate which was produced by the prosecution. However, for the reason of having intercourse with PW.2 which resulted in her pregnancy, both the Courts below found that the allegation of cheating for making false representation and committing rape under a false pretext of marriage were made out. 4. Learned Counsel appearing for the revision petitioner would submit that while both the Courts below have not considered the claim of the prosecution that the victim girl-PW.2 was a minor, committed an error in convicting the revision petitioner when the facts indicated that the relation in between PW.2 and revision petitioner was consensual. Only for the reason of not marrying, complaint was filed even according to PWs.1 and 2. The said reason cannot form basis to convict for the offence of rape and cheating. None of the ingredients of either Section 375 of the Indian Penal Code or 415 of IPC are made out. 5. The counsel relied on the Judgment of Honourable Supreme Court in Dr.Dhruvaram Murlidhar Sonar v. State of Maharashtra and others, (2019) 18 Supreme Court Cases 191. In the facts of the case, the Honourable Supreme Court found that no case of rape and cheating was made out when the ‘victim’ was consenting to have physical relation with the accused therein and only for the reason of the accused not marrying as promised, it would not be a criminal offence. 6. In Uday v. State of Karnataka, (2003) 4 SCC 46 ; Dilip Singh alias Dilip Kumar v. State of Bihar, (2005) 1 SCC 88 ; Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 ; Shivashankar v. State of Karnataka, (2019) 18 SCC 204 , the Honourable Supreme Court while dealing with similar cases of physical intimacy in between adults and in the facts and circumstances, found that mere refusal to marry at a later date would not constitute an offence of rape or cheating. 7. In the present facts of the case, prosecution has failed to prove that the victim girl-PW.2 was a minor when the incident had taken place. 7. In the present facts of the case, prosecution has failed to prove that the victim girl-PW.2 was a minor when the incident had taken place. Even according to her, the revision petitioner was her neighbour and in the absence of her grand-mother and parents, the accused used to visit her house and they indulged in sexual intercourse. It is stated by PW.2 that she permitted such sexual relation on the belief that the accused would marry her. Apparently, the victim girl had inclination towards the revision petitioner for which reason they continued physical relation. Further, though it was found that she was carrying two months pregnancy, the relation continued with the consent of PW.2. There was never any complaint against the accused when they had physical relation prior to becoming pregnant or after detection of pregnancy. Only when the accused refused to marry PW.2, the matter was taken before the elders and complaint was filed. Thereafter, the accused and his parents refused for the marriage in between the accused and PW.2. Though, there cannot be any direct formula or set standards to determine whether the consent given by victim was voluntary or under mis-conception of fact, however it differs from case to case. It is apparent that the physical relation prior to pregnancy and during pregnancy was with the consent of the victim girl and the complaint was filed only for the reason of accused refusing marriage with PW.2. It cannot be said that the sexual intercourse in between accused and victim girl constitutes offence of rape. There may be several reasons for which the marriage with the victim was refused though it was initially accepted. According to the witnesses, when she was pregnant, there was acceptance of marriage, however, after delivering the boy, the boy died and the marriage proposal was refused. It cannot be said that the accused had any fraudulent intention from the inception of the relationship to attract the ingredients of cheating. 8. For the reasons discussed above, the petitioner/accused succeeds and the revision petition is allowed setting aside the conviction under Sections 376 and 417 of the IPC for rape and cheating. Since the petitioner/accused is in jail, he shall be released forthwith. His bail bonds shall stand discharged. As a sequel thereto, miscellaneous applications, if any pending, shall stand closed.