THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No. 274 OF 2021
JUDGMENT:
This Criminal Appeal is filed by the Appellant/Accused aggrieved by the conviction recorded by the Special Judge for Fast Tracking of Cases Relating to Atrocities Against Women-cum-IX Additional Sessions Judge, Warangal, in S.C.No.14 of 2020 dt.02.07.2021, convicting the accused for the offences punishable under Sections 417 and 420 of the Indian penal Code and sentencing to undergo rigorous imprisonment for a period of one year for the charge under Section 417 of the IPC and to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.5,000/- for the charge under Section 420 of IPC.
2. Heard learned counsel for the appellant/accused and learned Additional Public Prosecutor for the respondent - State. Perused the record.
3. Briefly, the case of the victim-PW1 is that she was acquainted with the appellant since the year 2010. Initially, they were conversing over phone and fell in love later. The appellant was taking her home stating that he wanted to marry her. Saying so, he raped her several times. PW1-victim waited for 9 years to 2 marry, but, the parents of the appellant were looking for suitable alliance. The marriage of the appellant was fixed with one Kalyani. On 02.05.2019, PW1 went to the house of appellant and forced him to marry her. The next day on 03.05.2019, the accused took her in a car to Kotilingala temple and tied 'thali' around her neck and he took selfies and dropped her in the house. Later, the marriage of the appellant with the said Kalyani did not take place. PW1-victim waited for the accused/appellant to join her. However, since the appellant did not join her, she lodged a complaint on 18.05.2019.
4. On the basis of the said complaint, the Police filed charge sheet for the offences under Sections 417, 420 and 376(2)(n) of the Indian Penal Code.
5. The appellant pleaded not guilty for the said offences. The learned Sessions Judge having examined the witnesses PWs.1 to 14 and marking Exs.P1 to P15 found that the appellant was not guilty for the offence under Section 376 (2) (n) of the Indian Penal Code. However, the petitioner was guilty of the offences under Sections 417 and 420 of the Indian Penal Code.
6. Learned Counsel appearing for the appellant would submit that the learned Sessions Judge having found that she was not 3 subjected to rape, the question of convicting the appellant for the offence of cheating does not arise. Even according to the evidence of PW1, there was a relation between the appellant and victim over a period of ten years. Since the appellant refused to marry PW1, a false complaint was made.
7. He relied on the Judgment of the Honourable Supreme Court in Vijayan v. State of Kerala 1 wherein the Honourable Supreme Court held that the delay of seven months in filing the complaint would be unsafe to find the accused guilty. He also relied on the Judgment of Honourable Supreme Court in Tilak Raj v. State of Himachal Pradesh 2 wherein the Honourable Supreme Court held that when there was no fraudulent or dishonest inducement of the prosecutrix by the appellant, the offence of cheating will not be made out.
8. On the other hand learned Additional Public Prosecutor would submit that the appellant had promised to marry her and also took her to a temple where they got married. It amounts to an offence of cheating.
1 (2008) 14 Supreme Court Cases 763 2 AIR 2016 Supreme Court 406 4
9. Admittedly, the appellant and PW1 had physical relation over a period of ten years. It is not alleged in the statement that the appellant had promised to marry her and thereby induced to have sexual relation with her. It cannot be said when the relation is for a period of ten years that the victim was induced and was under false impression of being married to the appellant. As already stated, PW1 did not state that on the assurance of being married, they continued physical relation for ten years.
10. It is alleged by PW1 that the appellant took her to a temple and tied sacred thread. The said act of tying sacred thread would not amount to an act of cheating in the present circumstances. Admittedly, after having physical relation for nearly ten years, it is alleged that the appellant had taken her to a temple. The main ingredient of cheating is that such intention should have been entertained from the inception. There is no allegation that there was any kind of intention that was entertained by the appellant from the inception of the relation. The other ingredients of deceiving are also absent in the present case. Merely refusing to marry after ten years would not amount to an offence of cheating when both appellant and PW1 were in a consensual sexual relation over a period of ten years.
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11. Accordingly, Criminal Appeal is allowed and the conviction recorded by recorded by the Special Judge for Fast Tracking of Cases Relating to Atrocities against Women-cum-IX Additional Sessions Judge, Warangal, in S.C.No.14 of 2020 dt.02.07.2021, under Sections 417 & 420 of the Indian Penal Code, is hereby set aside. Since the appellant/accused is on bail, his bail bonds shall stand discharged.
Miscellaneous applications pending, if any, shall stand closed.
_________________ K.SURENDER, J Date: 17.11.2023 tk