Dismissed

Gummala Santhosh, Khammam Dt., v. the State of Telangana, Rep Pp.

Telangana HC6 Sept 2022CRLRC/59/2016

Case brief

AI extract

What is this about?

The High Court dismissed a criminal revision contesting a conviction for cheating under Section 417 IPC. The court held that the trial court correctly found a fraudulent intention to deceive the woman with a promise of marriage, despite the consensual nature of the sexual relationship.

What did the court decide?

Revision dismissed; conviction and sentence confirmed; bail cancelled; accused directed to surrender.

Gummala Santhosh, Khammam Dt., Vs the State of… — Cheating and Forgery | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY, THE SIXTH DAY OF SEPTEMBER TWO THOUSAND AND TWENry TWO

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PRESENT

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THE HONOURABLE Dr. JUSTICE G.RADHA RAN|

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CRIMINAL REvtsrON CAS E NO: oF 2016

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criminar Revision case under section 3g7 & 401 0f cr.p.c against the Judgment in s.c.No.2 of 2o1s dated 18.11.2015 on the fire of the court of the Speciar sessions Judge for triar of cases under scs and STs (poA) Act at Khammam.

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Between:

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Gummala Santhosh. S/o. Venkateswar Rao, aged 24 years, Occ: Juice Shoo. Rl/o. Ashok Nasar Cotony, ehad rjcha tam ]ihlin]i# b].tri"t

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AND

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... PETITION E RYACC US E D

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The State of Telanoana. throug! SHO I Town pS., Bhadrachalam reo. bv its Public Prosecutor.^-Hiqh'Cor J'dicature at Hyderabad, foi tf'e it-ie"#^''" Tetangana and the St"t" off;plf

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...RESPONDENTS/COMPLATNANT

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I.A. NO:1 F 201 c LRCMP. NO: 83 oF 2016

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Petition under section 397 (1) R/w Section 482 0f cr-p.c praying that in the circumstances state in the Memorandum of Grounds of criminar Revision case, the High court may be preased to suspend the execution of sentence imposed in sc.No.2 of 201s dt.18.11.20'rs on the fire of the Speciar sessions Judge fortriar of cases under SC and ST (prevention of Atrocities) Act at Khammam, pending disposal of the Crl.RC.

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Counsel for the^petitioner: SRI D. POCHAIAH

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Counsel for the Respondent: pUBLIC PROSECUTOR

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The Court made the following: ORDER

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THE HON,BLE^{DT. JUSTICEG. RADHA RANI} CRIMINAL^{REvISIONCASE NO.59oF 2016}

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ORDER:

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This criminal^{revisloncase1sfiled by the Petitioner-accused} assailing^{the judgmentof the Special Sessions Judge for Trial of Cases} underScheduledCastesandScheduledTribes(PreventionofAtrocities) Act, 1989^{(for short 'SC & ST (POA) Act')' at Khammamin SC No'2 of} 2015 dated^18.11.2015

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The case^{of the prosecution in brief was thatttfe accused was} a resident^{of Bhadrachalam and he belonged to Perika community'} The complainant^{belongedto ScheduledCasteandshe was alsoa resident} of Bhadrachalam.^{The accused got acquaintedwith the complainantand} developed^{intimacy with her' He lured the complainant with deceitful} words under^{the guiseof love and marriageand obtained her consentand} had sexual^{intercoursewith her in his house in the absence of inmates'} He continued^{the physical intimacywith the complainant for two years'} When the^{neighbours witnessedthe same and questioned the aecusedand} the complainant^{abouttheir closeness, both the complainantandthe} accused informed them that they were in love^{and going to marry.} But, whenever the complainant raised the topic about marriage, the

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Dt.GRR.J CiR( No i9 ol)At6

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{

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accused postponed the same on one reason or the other and subsequently, avoided to talk with her and to meet her. Two months prior to the date of her lodging the report, the complainant came to know that the parents of the accused were making preparations for his marriage with another girl and tried to contact the accused over phone. He switched off his phone. Then the complainant realized that she was cheated by the accused and attempted to commit suicide by taking sleeping pills. On seeing the same,, her neighbour prevented her from taking the tablets, consoled her and informed the said incident to the sisters of he complainant. The sisters of the complainant approached the parents of the accused and requested for marriage. But, the parents of the accused asked them to go away stating that they did not know who the complainant was. On 13.06.2014, the complainant confronted the accused about the promise made to her. The accused denied to marr}, her citing the reason that she belonged to Scheduled Caste and humiliated her. As such, the complainant approached the police and lodged the report. The same was registered as Crime No.166 of 2014 for the offences under Sections 4l7,4ZOIpC read and Sections 3 (l) (x) and 3 (l) (xii) of the SC & ST (pOA) Act. As per the proceedings of the Superintendent of police, Khammam, the SDPO, Manugur took up investigation, visited the scene of

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Dt-GfrR.J 3 C/|-R-C- No-t9 oIt0l6

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offence, examined the witnesses and sent the complainant for medical examination to Bhadrachalam, collected the caste certificates of^the complainant and the accused, arrested the accused^{and sent him to} Govemment Hospital, Bhadrachalam for^{potency test and produced him} before the Court. After completing the^{investigation,the policefiled} charge sheet against the accused.

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The case was taken on file by the Judicial^{Magistrateof First} Class, Bhadarchalarn, numbered the^{same as PRC 53 of Z0l4 and after} furnishing the documents to the^{accused,committedthe case to the Special} Sessions Court for trial of SC and ST^(POA)Cases.

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The Special Sessions Court framed charges against^the accused for the offences under Sections^{415 read} with4lT^{IPC and Section} 3 (l) (x) and (xii) of the SC & ST^(POA) Act, 1989.^{The accused pleaded} not guilty. During the course of trial, the prosecution examined PWs.l to 10 and got marked Exs.Pl to P9. No defence evidence was adduced by the accused, but a contradiction in the statement of PW.2 under Section¹⁶¹ Cr.P.C. was marked as Ex.B 1.

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On considering the oral and documentary evidence on record, the sessions coun found the accused not gu,ty for the offences under

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4 Dl a;RR,J Ctl R C. No.J90[:016

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Section 3(l) (x) and (xii) of the SC & ST (POA) Acr and acquitted him for the said offence, but found him guilty for the offence under Secrion 417 IPC and convicted him to rigorous imprisonment for a period of six months and fine of Rs.500/- in default of payment of fine, to suffer simple imprisonment for a period of ( 15) days.

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Aggrieved by the said conviction and sentence inflicted by the Special Sessions Judge for trial ofCases under SC and ST (pOA) Act, the accused filed this revision, contending that the ingredients to constitute the offence under Section 417 IPC, were not made out. The tri;il court erred in relying on the testimonies of the interested witnesses i.,e. PWs. I to 10. The learned Judge failed to see that the victim girl participated in sexual intercourse with the accused with her consent. There was an abnormal delay in giving Ex.P.l complaint to the police and prayed to set aside the judgment of the Sessions Court in SC No.2 of 2015'

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7 . Heard the leamed counsel for^{the petitionerand the leamed}

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Public Prosecutor.

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8 Now the point for consideration^is:

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V[/hether there is any^{infirmity in the judgmentof the} Sessions Courtⁱⁿ finding^{the accusedguilty} for^the

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5 D',ARR.J Crl.R C- No 59 of20t6

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o.ffence undcr Section 417 IpC and convicting him for lha same as ttboye?

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The learned Sessions Judge, on considering the evidence of the prosecution witnesses, obser'ed that there was no material on record that the accused intentionally insulted or intimidated pw.l in the name of caste or that he was in a dominant position to influence pw.l to obtain her consent for sexual intercourse, but it was a case of promise to marry the complainant under the guise of love and had sex with her, and found the accused not guilty lor the offence under Section 3(l)(x) and 3 (l) (xii) of the SC and ST (POA) Act. But, however, considering the evidence of PW. I and that nothing was elicited in her cross-examination that she had got any ill intention against the accused to speak falsely against him and normally no woman would come ancl openly say thal a particular person had sex with her ad the e'iderce of pw.2 also corroborated with the evidence of pw.l that they enqrrired with pw.r and accused about their Iove affair and the accused informed her that he wanted to marry pw.l after convincing his parents and the evidence of pW.3, the sister of pW.l wherein she stated that after knowing the information about consuming tablets by pW. I . she came there along with her other sisters and approached rhe parents of the accused, believed the evidence of the witnesses with regard to the oflbnse under Section 417 lpc.The trial court

ll,

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DT Gfr]I.J C R(. No.:9 ol)t)t6

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specifically noted that the evidence of PW.1 established that the accused had love affair with her and promised to marry her and she stated that many a times the accused had sex with her in the house of accused in the absence of inmates and also in her house but later refused to marry her, as such, considered that the accused deceived pW.l and there was a fraudulent intention on the part of the accused at the time of making promise, as he very well knew that pw.l belonged to Scheduled caste and he belonged to Perika community and deceived her.

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The learned counsel for the revision petitioner relied upon a judgment of the High Court of Bombay in Kashinat! Narayan Gharat v.

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State of Maharashtrar, the facts of which were also similar to the present

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case, wherein as per para-6 of the said judgment it would reveal that:

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"6. The evidence ofpWl- prosecutrix reveals that the accused was known to her. She had sexual relationship with the accused for over about 3 years. Evidence of pW2- sister of the prosecutrix also reveals that there was love affair between the accused and the prosecutrix. The evidence on record thus indicates that sexual relationship between the prosecutrix and the accused was consensual. The accused has been held guilty of offence under Section 417 of the IPC solely for the reason that he refused to marry the prosecutrix. The question is whether in such circumstances refusal to marry constitutes an offence of cheating".

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Considering the judgments of the Hon,ble Apex Court in Sonu @

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Subhash Kumar v. State of Uttar pradesh and another [2021

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'^zozz 1t1^crt.cc ls

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DT.GRR.J OlRC. No.59 ol t0t6

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SCC Online SC 18U and Maheshwar Tigga v.^{State of}

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Jharkhand 1Q020) 10 SCC^{1081 held that:}

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"9. In the instant case, the evidence on record indicates^{that the} prosecutrix and the accused rvere known to^{each other- Theyhad} indulged in sexual relationship^{fora period of overthree years.The} evidence of PWl-prosecutrix^does not^{indicate thatshehad sexual} relationship with the^{accusedundermisconceptionof fact,with} regard to the promise of^{marriageor that her consent was based on} fraudulent misrepresentation of marriage.^{Thereis no evidence on} record to indicate that since the^{inceptionaccuseddid not intendto} marry her. In the^absence of^{evidenceto prove that the prosecutrix} had consented for^{physicalrelationship on a misconceptionof fact,as} stipulated under^Section 90^{of lPC,the mere refusal to marry would} not constitute offence^{under Section417 of the IPC."}

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The Hon'ble Apex Court in^{the above cases, consideredits}

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earlier^judgment in Pramod Suryabhan^{Pawar v. State of Maharashtra}

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I(2019)^{9 SCC 6081, whereinit was observed that:}

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"Where the promise to marry is false^{and the intention of themakerat} the time of making the promise itself^{was not to abide by it but to} deceive the u'oman to convince her^{to engage in sexual relations,} there is a "misconception of fact"^{that vitiatesthe woman's"consenf'.} On the other hand, a breach of^{a promisecannotbe said to be a false} promise. To establish a false prornise, the maker of^{the promise} should have had no intention of upholding^{his wordat the time of} giving it..."

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&:'\r

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The Hon'ble Apex Court extracted^{judgment in LIdayv' State}

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of Karnataka [(2003) 4 SCC 461, which is^{as under:}

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"21. It therefore appears that the consensus ofjudicial opinion is in favour of the vicw that the consent given by the prosecutrix to sexual intercourse with a person with whom she l:.*:tl,^{in love.on a prornise rhathe would marry heron a} rarer datc- cannot be said to he g-iven under a misconception of fact. A false promise is not a fact witlin ttre meanal "i,n"

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DTCRR-J Ctl.R.C No J9 o[ 20 t6

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Code. We are inclined to agrec with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question ofconsent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."

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In Maheshwar Tigga v. State of Jharkhand and held that:

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"20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with lrer body, which according to normal human behaviour are permitted only to'a person with whom one is deeply in love."

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As seen from the facts of this case, the complainant had

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continued physical relationship with the accused for a period of two years. The evidence on record would indicate that the sexual relationship between

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the complainant and the accused was consensual. The Hon'be Apex Court held in the above cases that each case depends on its own peculiar facts and have a bearing on the question whether the consent was voluntary or was given under mis-conception of fact and had to weigh the evidence.^As the trial couft had an oppoftunity to examine^{the evidence of the witnesses} in detail and by placing reliance upon the^{judgment of the Hon'ble Apex}

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lfi.

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DTCRRJ att R C. No.59 ol )til6

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court in Karthi (@ Karthik v. State, represented by Inspector of police, Tamilnadu (Crl.A. No.60l of 2008) and of the High Court of A.p. in Badi Chinna Rao r,. State of A.P. 12003 (Z) ALD Crt. 6221 held that rhe evidence of PW. l established the offence under Section 417 lpc and that there was a fraudulent intention on the part of the accused at the time of making promise as the accused very well knew that they belonged to different castes, but continued his relationship with her and when the complainant raised the topic of marriage, refused to marry her in the name of caste, convicted the accused.

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This court in the revision does not have the opportunity to examine the evidcnce of the witnesses in detail and courd only see that whether the court had appried the raw in accordance to the facts of the case. As the Sessions court applied the raw considering the facts of the case and found the accused guirty for the offence under section 4r7 rpc,it is considered that there is no infirmity in the judgment of the triar court in this regard' The sentence awarded by the trial court is also considered appropriate to the facts of the case. Hence, it is considered fit to dismiss rhe revision confirming the conviction and sentence awarded by the triar court.

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D.^(;RR.J C -R.C No.teo/⁾⁰¹⁶

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In the result, the Criminal Revision Case is dismissed

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confirming the conviction and sentence^passed by^{the SpeciatSessions} Judge for trial of cases under Scheduled^{Castes and Scheduled Tribes} (Prevention of Atrocities) Act, 1989, Khammam in SC No.2 of 2015 dated 18.11.2015. The bail^granted to the^{petitioner-accusedshallstand} cancelled. The petitioner-accused is directed^{to surrender beforethe court} below forthwith and in case^{he fails to do so, the court below is directedto}

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take steps in accordance^with law^{to take him into custody.}

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Pending miscellaneous^{petitions, if any, shallstand closed'}

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SD/-A.V.S.S.C.S.M.SARMA DEPUTY REGISTRAR //TRUE COPY// '' \r^{, : )} I ".\r' SETTION OFFICER

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To, 1. The Special^{Sessions Judge for.trial of cases under SCs/STs(POA)Act'}

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, fl3Tfr?#,(l'ji]I31fi!,tlili3YLnadracnaram,^{xhammamDistrict} 3. The^{StationHor.e oif'c'"i,'l i;;F;in" Station Bhadrachalam Town'} Khammam^District.

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