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2024 DIGILAW 731 (AP)

Palaparthi Rajiv Babu v. State Of Andhra Pradesh

2024-07-02

V.R.K.KRUPA SAGAR

body2024
ORDER : (V.R.K. Krupa Sagar, J.) In this Criminal Revision Case filed by the accused under Sections 397 and 401 of Code of Criminal Procedure (Cr.P.C.) the petitioners impugn the order dated 27.02.2024 of learned V Additional District and Sessions Judge-cum-Special Court for trial of offences against women, West Godavari, Eluru. The said order was passed in Crl.M.P.No.242 of 2023 in S.C.No.41 of 2023. By the impugned order, the learned Additional Sessions Judge refused to discharge the accused for the offences alleged against them under Sections 376(2)(n), 417 and 506 I.P.C. Therefore, the present revision. 2. Sri Jakkamsetti Saraschandra Babu, the learned for revision petitioners and Sri Dheera Kanishk, the learned Special Assistant Public Prosecutor for respondent No.1/State submitted arguments. None appeared for respondent No.2/victim-cum-de facto complainant. 3. Respondent No.2 is a woman and completed her M.sc., B.Ed. and through APPSC she got employment and has been working as Assistant Social Welfare Officer. Thereafter she got married and that marriage ran into troubles and in the year 2021 she obtained divorce. While she was working at Narsapuram, petitioner No.1/A.1 was working as Welfare Education Assistant assisting respondent No.2 who is her superior. Over a period, there was a fair acquaintance between them. While so, it is alleged that he proposed to marry her. She allegedly told him that she was older to him in age and was a divorcee and she could not accept for marriage. However, he allegedly persisted and told her he would marry her and give her a new lease of life. Over a period, his words convinced her and made her to believe that he would marry her. It was in those circumstances, it is alleged that he promised to marry and live with her and out of that though it is against her will and consent, she submitted herself and there developed physical sexual relationship between them. It went on for certain years and thereafter it had come to surface that he was looking for marrying another girl. She questioned him and he refused to marry her stating that she was a divorcee and he could not marry her. It is stated that petitioner No.1/A.1 intimidated her stating that his father/petitioner No.2/A.2 holds political clout and he himself carried rumors to the Joint Director who was superior to and he was also telling bad things about her and spreading it among colleagues. It is stated that petitioner No.1/A.1 intimidated her stating that his father/petitioner No.2/A.2 holds political clout and he himself carried rumors to the Joint Director who was superior to and he was also telling bad things about her and spreading it among colleagues. It is stated that a panchayat of elders was held on 10.05.2022 in which all the three petitioners/A.1 to A.3 appeared and they abused her in filthy language and challenged her to give complaint to police or Court and they would see that she would not get justice. It was in those circumstances on 03.06.2022 respondent No.2 lodged her written information with Narsapuram Town Police Station and the same was registered as Crime No.102 of 2022. Investigation commenced and was completed and listing 19 witnesses as LWs.1 to 19 a charge sheet was laid before learned Magistrate which case was thereafter committed to the learned Court of Sessions. While the matter was coming up for charge hearing, all the three accused filed Crl.M.P.No.242 of 2023 in S.C.No.41 of 2023, under Section 227 of Cr.P.C., seeking their discharge. After due hearing, by the impugned order the learned Additional Sessions Judge dismissed the application. It is in that context and aggrieved by the said order, the present revision is filed. 4. Learned counsel for revision petitioners submit that the allegations in the charge sheet and the supporting material do not make out a case for the offences punishable under Sections 376(2)(n), 417 and 506 I.P.C. and the medical evidence does not corroborate the prosecution version. Learned counsel submits that A.1 and the de facto complainant are adults and the allegations in the charge sheet indicate consensual sex and therefore, it is not possible to say that there is the offence of rape. Learned counsel submits that mere breach of promise to marry is not an offence and that the facts on record do not make out a case. Learned counsel further argued that A.2 and A.3 are brothers and A.2 is father of A.1. That the entire material on record does not prima facie indicate any case against A.2 and A.3 to say that there was criminal intimidation on their part. 5. On the aspect of rape, the learned counsel cited two rulings. Learned counsel further argued that A.2 and A.3 are brothers and A.2 is father of A.1. That the entire material on record does not prima facie indicate any case against A.2 and A.3 to say that there was criminal intimidation on their part. 5. On the aspect of rape, the learned counsel cited two rulings. Vikas Kumar v. State of Telangana, 2023 (1) ALD (Crl.) 467 (TS) -That was a case of a man and woman commencing their relationship as friends which finally led to physical relationship and when the relationship broke that resulted in criminal prosecution for the offences under Sections 376(2)(n), 417 and 493 I.P.C. was initiated. Seeking to quash those proceedings, the accused filed a petition on the premise that the matter was compromised. The victim woman filed an affidavit wherein she mentioned that the allegations she had earlier mentioned were out of misunderstanding and wrong advice and stated that the matter was compromised. It was in those circumstances the quash petition was allowed and the proceedings were quashed. In the above context of facts, the Hon’ble Telangana High Court mentioned that the material placed before it did not indicate any deceit and sexual relationship out of such deceit. 6. The other ruling cited is Kothapally Krishna v. State of Telangana, 2023 (1) ALD (Crl.) 1038 (TS). That is also a case of prayer for quashing criminal prosecution for the offence under Section 376(2)(n) I.P.C. and other offences. In that case the facts presented before the said Court showed that between the man and the woman the alliance was fixed, and an engagement function was held and it was thereafter the proposed marriage fizzled out. At paragraph No.10 it was recorded that the physical relationship between them was not consequent of any false promise or any misconception of fact. It was for those reasons the Court opined that the facts did not attract Section 376(2)(n) I.P.C. 7. At paragraph No.10 it was recorded that the physical relationship between them was not consequent of any false promise or any misconception of fact. It was for those reasons the Court opined that the facts did not attract Section 376(2)(n) I.P.C. 7. As against it, the learned Special Assistant Public Prosecutor submits that the case diary in the present case does indicate manipulation of consent of the victim woman by A.1 as the statements of the witnesses made to police would indicate that A.1 made false promises of marriage and gained manipulated consent of the victim woman and keeping her under that impression he was able to secure the physical obedience of the woman and such facts do attract the offence of rape and the rulings cited are clearly distinguishable on facts. The facts and circumstances were properly considered by the learned trial Court and it appropriately exercised its jurisdiction and therefore the order refusing to discharge the accused has to be upheld. 8. The case is pending before learned Additional Sessions Judge. It is exclusively Sessions triable case. The offences alleged are chargeable. 9. The point that falls for consideration in this revision is: “Even though there is no sufficient ground to proceed whether the learned trial Court erroneously refused to discharge the accused?” POINT: 10. Section 227 Cr.P.C. provides the principles for discharge and Section 228 Cr.P.C. provides the principles for framing charge. Section 227 Cr.P.C. indicates that if the Sessions Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge them and record his reasons for so doing. Section 228 Cr.P.C. postulates that if the Sessions Judge is of the opinion that there is a ground for presuming that the accused has committed an offence, then he shall frame the charge. If the charging Sessions Court indulged in any procedural illegality or it misconducted itself and committed acts of impropriety leading to miscarriage of justice, the power of revision vested with this Court under Sections 397 and 401 Cr.P.C. shall come to the aid of the aggrieved. 11. A man is said to commit rape if the sexual act is committed against will or without the consent of the woman (vide Section 375 I.P.C.). 11. A man is said to commit rape if the sexual act is committed against will or without the consent of the woman (vide Section 375 I.P.C.). If the said rape is repeatedly committed on the same woman, larger punishment is provided under Section 376(2)(n) I.P.C. Per se sexual act between the consenting adults is no offence. While if it is not out of free consent, it is only then it attracts the penal provisions. Section 375 I.P.C. Explanation 2 reads as below: “Explanation 2:— 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 the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1:— A medical procedure or intervention shall not constitute rape. Exception 2:— Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 12. Section 90 I.P.C. reads as below: “90. Consent known to be given under fear or misconception:— A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person:— if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child:— unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.” This Section 90 I.P.C. makes it clear that the first part of it sets out the factors from the viewpoint of the victim and the later part of this section sets out the factors from the viewpoint of the accused. 13. 13. The facts to be considered and the application of mind that is required for a Sessions Court while considering the material for the purpose of finding out whether there is sufficient ground for charging or not is at a phase where he only has to see whether a case for a trial has been made out by the prosecution. For this purpose, he has power to sift and weigh the material only to satisfy himself whether a prima facie case is made out so as to furnish sufficient ground for proceeding further or not. He is not permitted to see whether the trial would finally culminate in acquittal or conviction. If a promise to marry held out by the accused is a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 I.P.C. The stage of analyzing factual materials can be undertaken only at the trial when the witnesses are produced. At the stage of considering the material for the purpose of framing charge or discharge, it is only the allegations that are made that have to be considered properly. 14. In the light of the above principles, now the facts on record have to be seen. With reference to A.1/petitioner No.1, the charge sheet and the statements of victim and other witnesses do show persistence of A.1 that he would marry the victim and finally convincing her that he was really desirous of marrying her and thereafter there developed sexual relationship between them and when the time for the marriage came he refused to marry her. Whether these pieces of statements made by the witnesses are true or false is a matter for consideration at the trial. However, if these statements remain unrebutted they do indicate commission of offence as it can be said that it was a manipulative consent. Under the false promise of marriage, the sexual act took place. Reference in this regard can be made to Yedla Srinivasa Rao v. State of A.P., 2007 (1) ALT (Crl.) 61 (SC). However, if these statements remain unrebutted they do indicate commission of offence as it can be said that it was a manipulative consent. Under the false promise of marriage, the sexual act took place. Reference in this regard can be made to Yedla Srinivasa Rao v. State of A.P., 2007 (1) ALT (Crl.) 61 (SC). The learned trial Court rightly appreciated the law and rightly appreciated the facts and at page No.7 of the impugned order it stated that in view of the clear statements of the victim and other witnesses she found a case to charge him and the truth or otherwise of those statements could be found only on a full-fledged trial. Therefore, with reference to A.1, the order of the learned trial Court is unexceptionable as it exercised its power vested with it and it did not commit any illegality or impropriety. 15. Coming to A.2 and A.3/petitioner Nos.2 and 3, according to prosecution, they criminally intimidated the victim woman. I have gone through the entire record. Concerning A.2 and A.3 the instance of criminal intimidation occurred on 10.05.2022 in the presence of certain elders. As per the record A.2 and A.3 abused the victim woman in filthy language and challenged her to give complaints to police or Court and they would see that she would not get justice. LW.8–Sri B.Anil Kumar and LW.9-Sri D.Swamulu are stated to be those elders. Their statements do show that A.2 and A.3 firmly told that it was not possible for A.1 to marry the victim woman as she was a divorcee. It is further stated by them that A.2 and A.3 abused the victim woman and the advice of elders was not heeded to by A.2 and A.3. They have also said that on hearing the words of A.2 and A.3 the victim woman was disappointed and left the place stating that she believed that justice would be rendered to her but she could not get justice there. This is the only material available on record. Statements of these witnesses do not indicate A.2 and A.3 causing panic in the mind of the victim. These statements do not indicate the words that were uttered by A.2 and A.3 against the victim woman. No other physical acts are attributed against A.2 and A.3. This is the only material available on record. Statements of these witnesses do not indicate A.2 and A.3 causing panic in the mind of the victim. These statements do not indicate the words that were uttered by A.2 and A.3 against the victim woman. No other physical acts are attributed against A.2 and A.3. The material indicates dissatisfaction or disappointment experienced by the victim as the meeting of elders did not bring relief to her. Even remotely the statements do not suggest anything that could be called as criminal intimidation resorted to by them against the victim woman. Case diary shows that it was A.1 who was carrying bad propaganda about the victim woman damaging her reputation and character which facts fall for consideration under Section 503 I.P.C. where criminal intimidation is defined and Section 506 I.P.C. where punishment for it is provided. All those acts that were attributed against A.1 in this regard are not seen from the record as against A.2 and A.3. In such circumstances, it is difficult to see any offence being made out as against A.2 and A.3 under Section 506 I.P.C. At paragraph No.16 of its judgment learned trial Court cryptically stated that the statement of witnesses and that of the de facto complainant clearly attract the offence under Section 506 I.P.C. At paragraph No.15 it stated that the material showed that they threatened the de facto complainant with dire consequences. In the opinion of this Court that part of the order is bereft of necessary reflection on facts and devoid of the application of mind that is expected of. In the light of the view that is stated by this Court, there is no material to charge A.2 and A.3. The impugned order of the trial Court cannot be upheld to the extent that is contrary to this. 16. In the result, this Criminal Revision Case is partly allowed. The impugned order dated 27.02.2024 of learned V Additional District and Sessions Judge-cum-Special Court for trial of offences against women, West Godavari, Eluru so far as petitioner No.1/A.1 is upheld. So far as petitioner Nos.2 and 3/A.2 and A.3, the impugned order is set aside. Consequently, A.2 and A.3 stand discharged from S.C.No.41 of 2023 and their bail bonds shall stand cancelled. Learned Additional Sessions Court shall forthwith proceed further and dispose of S.C.No.41 of 2023 in accordance with law. So far as petitioner Nos.2 and 3/A.2 and A.3, the impugned order is set aside. Consequently, A.2 and A.3 stand discharged from S.C.No.41 of 2023 and their bail bonds shall stand cancelled. Learned Additional Sessions Court shall forthwith proceed further and dispose of S.C.No.41 of 2023 in accordance with law. As a sequel, miscellaneous applications pending, if any, shall stand closed.