Dismissed

Balla Raj Kumar v. The State of Telangana, And Another

Telangana HC16 Dec 2022CRLP/3548/2022

Case brief

AI extract

What is this about?

Application filed to quash criminal proceedings alleging rape and cheating. The High Court held that allegations regarding false promises and inducement to turn hostile cannot be adjudicated merely on documents and require a full trial.

What did the court decide?

Criminal petition dismissed; trial court directed to proceed without being influenced by observations.

Balla Raj Kumar Vs The State of Telangana, And… — Criminal Trial and Appeal | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE SIXTEENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER

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CRIMINAL PETITION NO: 3548 OF 2022

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Between:

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Balla Raj Kumar, S/o Mallaiah, Aged 28 yrs, Occ: AR Constable, R/o: Bapu Nagar Colony, Asifabad, No/o H. No.1-49, Asifabad, Kumaram Bheem Asifabad District.

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...Petitioner/Accused

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AND

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The State of Telangana, Represented by its Public Prosecutor, High Court at Hyderabad Through. SHO, P.S. Asifabad, Kumaiam Bheem Asifabad Dishict.

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Potte Pentakka @ Sandya, D/o Mondaiah, Aged 23 yrs, Occ: Coolie, R/o Bombaiguda Village, Penchikalpet Mandal, Kumaram Bheem Asifabad District.

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...Respondent No.2/Defacto Complainant

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to call for the records relating to PRC No.7 of 2022 dated 15-03-2022 on the file of the Judicial Magistrate of First Class At Asifabad, against the Petitioner/Accused and quash the same.

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l.A. NO: 1OF 2022

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memorandum of Grounds of Criminal Petition, the High Court may be pleased to grant stay of all further proceedings in PRC No.7 of 2022 dated 15-03-2022 on lhe file of the Judicial Magistrate of First Class At Asifabad in respect of the Petitioner/Accused till the disposal of the Criminal Petition.

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l.A. NO: 2 OF 2022

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Petition under Section 482 of Cr.P.C praying that in the circumstances stated in the Memore ndum of Grounds of Criminal Petition, the High Court may be pleased to pass rrder by vacating stay granted in Crl.P.No.354B of 2022 dated 19-04-2022 an< suspend the stay of all further proceedings in PRC No.7 of 2022 on the file of Jur icial Magistrate of First Class, Asifabad and to grant.

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This Petition c()ming on for hearing, upon perusing the Memorandum of. Grounds of Crimin al Petition and upon hearing the arguments of Sri P. LAKSHMA REEDY, Advocate for the Petitioner and the Public Prosecutor on behalf of the Resp,)ndent No.1 and of Sri B. VAIJAYANTHI, Advocate for the Respondent No. 2

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The Court made the fc llowing: ORDER

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IION'BLE SRI JUSTICE K.SURENDER CRIMINAL PETITION No.3548 Ot 2022

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ORDER:

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This Criminal Petition is filed to quash the proceedings in PRC No.7 of 2022 dated 15.03.2022 on the frle of Judicial Magistrate of First Class at Asifabad.

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The case against the petitioner is that he committed rape on the 2"a respondent/ d efacto complainant, for which reason, she lodged a complaint in Crime No.116 of 2Ol9 at Police Station Asifabad. Th€ said case was investigated and charge sheet was Iiled which was numbered as Special S.C.No.26 of 2o19for the offences under Sections 376(2)(n), 417, 42O,506 of IPC. During the course of the said Sessions Case, the petitioner called the defacto complainant to Asifabad. However, she denied. The petitioner forcibly called her, threatened her with dire consequences and committed rape on her. He promised during the course of trial that he would look after well and also saw to that the 2"d respondent tumed hostile in the prosecution case resulting in acquittal. During the said period, he promised that he would marry her, for which reason, she turned hostile and however, after acquittal, petitioner denied to marry her by stating that theqe is no relation with her

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and threaten( d her with dire consequences. For the said reason, she met caste eiders, who advised her again to approach the^police. On the basis of the said complaint, present charge sheet is frled for the offences ari stated supra.

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Learncd counsel for the petitioner would submit that the Sp1.S.C.No.26 of 2019 was already acquitted by the Special Court and for the re ason of such acquittal, a fa,lse complaint is made. Even assumirrll that the contents of her complaint are accepted, no offence is discl:sed for the offence of rape. Apparently, the relation between the pe titioner and the 2"d respondent was consensual and only for the reeson of refusing to marry would not amount to an offence of rape and cheating. In support of his contention he relied upon the judgn ent of Hon'ble Supreme Court in the case of Pramod Suryabhan Pas ar: v. State of Maharashtra [2O 19 (9) SCC 608] wherein it is he ci as follows:

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'Where the^promise to mar-ry is false ald the intention of .the maker at th : time of making the promise itself was not to abide by it but to de :cive the woman to convince her to engage in sexual relalions, tl rere is a "misconception of fact' that vitiates the woman's "c( rnsent". On the other hand, a breach of a promise cannot be s:jd to be a false promise. To establish a false promise, the makcr of the promise should have had no intention of upholding h:s word at the time of giving it..."

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" The "cons:nt" of a woma_n with respect to'section 37S must involve an a,:tive artd reasoned deliberation towards the proposed act. To est rblish whether the "consent" was vitiated by a "misconcepti ;n of fact" arising out of. a promise to marrj/, tu/o

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propositions must be established. The promise of marriage must have been a false promise, given in bad faith and lrith no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevalce, or bear a direct nexus to the woman's decision to engage in the sexua.l act."

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4 L,earned counsel further submits that the judgment in SC

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No.26 of 2019 was delivered on24.O9.2021 and the allegations in the complaint are in between 20 19 and 2O.12.2O2I .lf at all there was relation on account of false promise, the same would have been brought before the concerned Court when the trial was going on in SC No.26 of 20L9. As an afterthought the present complaint is filed only to harass the petitioner. Even according to the counter a-ffidavit hled by the 2"d respondent, it was mentioned that during the trial of Special S.C.No.26 of 2019, the parents of the petitioner got his marriage with another woman, which clearly indicates that she has knowledge about the petitioner's marriage and the question of cheating or rape does not arise when she consented to sexual intercourse with the petitioner. He relied upon the^judgment of the Kerala High Court in Crl.M.C.No.92OL of 20 19, dated 06.102022 and argued that under similar circumstances, when the victim knew about the earlier marriage of the

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accused ther ein and consented to have physical intimacy, the Kerala High Court found that it would not amount to an offence of ra>,: or cheating and consequently, the proceedings were quasher I

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On the other hand, learned counsel appearing for the respondent ,/ould submit that having raped the victim/2"d respondent ea.rlier on the pretext of false promise, during the course of triirl for the said offence, again the petitioner had indulged in ir clucing her on the pretext of marriage and saw to that the said case ended in acquittal. Both of them entered into an agre:ment for settling the issue and according to mutual agree r:Lent, the petitioner agreed to pay an amount of Rs.S.OO iakhs. However, the said afiIount was also not paid nor marriage rad taken place. TWo of the witnesses to the said mutual agreeroent are the witnesses in the present case, who clearly stated that the 2,,d respondent was raped and cheated by the petitioner herein.

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Having terused the record, the case against the petitioner is tlrnt he had induced the 2"d respondent/ defacto

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complainant during the course of crimina-l trial for the offence of rape in SpI.S.C.No.26 of 2019. Prior to the complaint made which is subject matter of Sp1.S.C.No.26 of 2079, the petitioner had committed rape on the 2"d respondent forcibly and also threatened her, for which reason, the complaint was lodged. During the course of trial, it is alleged that again the petitioner induced her to Asifabad and there he had sexual intercourse against her will and further promised to take care of her and saw to that she turned hostile to t]e case of the prosecution in Sp1.S.C.No.26 of 2019 resulting in acquittal. After acquittal in the said case, the petitioner refused to marry her, however during the trial he married another woman.

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The conduct of the petitioner 1n inducing the 2"d respondent into turning hostile by making a false promise of looking after her, marrying her and further forcibly raping her at Asifabad are acts which can only be decided during the course of trial. Whether the said allegations were made truly made or deliberately made after recording of acquittal in the said crime can only be decided by trail court after examining

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witnesses.^-According to the witnesses, the 2.d respondent was called to Asi.abad wherein the petitioner had committed rape on her and e 1so threatened her. As per the prosecution case, the petitione:' had indulged in acts against 2"d respondent to see that the rape case against him would end in acquittal.

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On the >asis of the statements made by the witnesses in the said cas,: and also as narrated by the 2"d respondent, this Court urlder Section 482 of Cr.P.C cannot decide on the intention of tlre complainant in lodging the complaint. On the basis of the rr:cord, the allegations made against the petitioner are issues which are triable and then the Sessions Court can come t6 a conclusion regarding the correctness or otherwise of the allegation; made against the petitioner. This Court finds that the actr, of the petitioner in ensuring that the 2"a respondent turned hostile on the promise of looking after her, marrying her rrnd also committing rape on her during the trial cannot be adjrrdicated. Whether the said acts were consensua-1 or whether thr:re was misconception of fact are to be decided by the tria-l Co:rrt. ' ..

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Fo-r the aforesaid reasons, the Criminal petition is dismissed. The tria.l Court shall proceed with the trial, without being influenced by any of the observations made herein. As a sequel thereto, miscellaneous applications, if any, shall stand closed.

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Sd/.T.SRINIVAS DEPUTY REGISTRAR

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