Telangana High Court
Manda Babu vs The State Of A.P. on 30 April, 2024
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL REVISION CASE No.889 OF 2011
ORDER :
This Criminal Revision Case is preferred by the petitioner/accused under Sections 397 and 401 of Criminal
Procedure Code (for short 'Cr.P.C.') aggrieved by the judgement dated 07.04.2011 in Criminal Appeal No.23 of 2010 on the file of the learned IV Additional District and Sessions Judge (FTC) at Mahabubnagar wherein and whereby the findings of learned Assistant Sessions Judge at Wanaparthy dated 01.02.2010 vide judgment in SC No.135 of 2009 convicting and sentencing him to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for three months for the offence under Section 448 IPC and further to undergo rigorous imprisonment for seven years and to pay a fine of Rs.2,000/- in default to undergo rigorous imprisonment for six months for the offence under Section 376 IPC directing both the sentences to run concurrently were confirmed.
2. Heard Sri Bonkuri Sridhar, learned counsel for the petitioner and Sri Vizarath Ali, learned Assistant Public Prosecutor, representing learned Public Prosecutor for the State/respondent.
3. SC No.135 of 2009, on the file of the learned Assistant Sessions Judge, Wanaparthy was registered on the strength of the Page 2 of 12 complaint lodged by PW1 alleging that the accused/petitioner herein on 24.07.2008 at about 11.00 p.m. while she was sleeping, entered into her house, removed the electrical fuse and forcibly committed rape and when her father/PW2 came, the accused fled away from the scene leaving his shirt, lungi, mobile phone and a pair of cheppal at the spot. Further, after informing the same to the elders and after the deliberations held to console the accused to marry PW1 failed, Ex.P1 complaint was lodged.
4. The accused denied the said allegations mainly contending that the character of PW1 is not good, she gave consent for sex, both PW1 and accused were in love for some time, no efforts were made by the investigating officer to state that MOs.1 to 4, allegedly left by the accused at the scene of offence, belong to the accused and that the accused was falsely implicated in the present case.
5. The trial Court, upon considering the entire evidence in the form of PWs.1 to 12 and Exs.P1 to P15 and also MOs.1 to 4 found the accused guilty, convicted and sentenced him as stated supra.
6. Aggrieved by the said findings, the petitioner preferred Criminal Appeal No.23 of 2010 before the learned IV Additional District and Sessions Judge (FTC), Mahabubnagar mainly Page 3 of 12 contending that the trial Court failed to appreciate the law, evidence on record and also the circumstances of the case in a right perspective and hence, the findings of the trial Court are liable to be set aside. The learned District Judge of the appellate Court dismissed the said criminal appeal.
7. Aggrieved by the findings of both the Courts below, the petitioner herein filed the present criminal revision case mainly contending that both the Courts below failed to appreciate the consent of PW1 and her intimacy with PW6 and found the accused/petitioner guilty against the principles laid by several Courts in a catena of decisions.
8. Learned counsel for the petitioner relied upon the decision rendered by the Hon'ble Supreme Court in the case between Nirmal Premkumar and another Vs.State represented by Inspector of Police 1 contending that the evidence must be highly qualitative, consistent, credible and trustworthy but in the case on hand, the prosecution witnesses are not consistent and appears to be untrustworthy and hence, basing on such incredible evidence, the petitioner cannot be found guilty. It is further contended by learned counsel for the petitioner basing on the above decision that though 1 Crl.A.No.1098 of 2024 (Hon'ble Supreme Court) Page 4 of 12 the act of sexual harassment of a girl would figure quite high in the list of offences of grave nature and has far-reaching consequences, at the same time, the said accusation against the accused would remain as an indelible mark marring his entire future.
9. On the other hand, learned Assistant Public Prosecutor vehemently opposed the present criminal revision case mainly contending that in spite of resistance of PW1, the petitioner against her will, by illegally trespassing into her house during night hours, while PW1 and her father/PW2 were sleeping, committed rape inducing her to believe that he will marry her on the next day and after committing rape he resiled from his promise and in such circumstances, both the Courts below have rightly found him guilty for the offences punishable under Sections 448 and 376 of IPC and that there is no necessity to interfere with the well considered findings of both the Courts below.
10. This Court perused the entire material available on record including the judgements of both the Courts below. PW1 is the victim and PW2 is her father and PW3 is their neighbour. Their evidence shows that the petitioner and PW1, who are close relatives, fell in love with each other and when the petitioner insisted PW1 for fulfilling his sexual desire she resisted the same stating that after their marriage with the consent of elders only she will participate in Page 5 of 12 such act with him. It is also their evidence that on the date of incident, when PW1 was sleeping in her room and PW2 in another room, during night hours, the accused by taking advantage of unbolted door, entered into the room of PW1 by removing the electricity fuse and removed her dress and when she resisted reiterating her disinterestedness for such act prior to the marriage, he assured her to marry on the very next day and after committing such act, he resiled from his assurance and hence, PW1 started crying and shouting and upon hearing the same, PW2 came to the room and in the light of torch of his cell phone identified the accused and when he questioned his presence in his daughter's room and tried to catch him, the accused fled away by leaving his shirt, lungi, cell phone and a pair of chappal. Upon hearing the sounds, PW3 rushed to the scene and observed the accused. As per the case of prosecution, PWs.4 and 5 are the village elders and in their presence a meeting was conducted to mediate and pacify the issue and convince the accused asking him to marry PW1 but he refused to marry her stating that the character of PW1 was not good and offered to pay Rs.40,000/- to her. However, they turned hostile and did not support the prosecution case. PW6, a jeep driver and allegedly had affair with PW1, did not support the prosecution case. PW7 acted as witness for recovery of material objects from the residence of PW1. PW8 doctor, examined the accused and issued potency certificate Page 6 of 12 under Ex.P7. PW9 doctor, examined PW1, collected and sent swabs to FSL, Hyderabad for medical examination and received Exs.P9 to 11 confirming that PW1 was subjected for sexual intercourse. PW9 admitted that there were no external injuries on the body of PW1 or semen and spermatozoa on the swab. She stated that since PW1 was referred to the hospital after more than 48 hours of the incident, the possibility of absence of semen and spermatozoa cannot be ruled out. PW10 registered the case. PW11 visited scene of offence and recorded the statements of witnesses and village elders. PW12 investigated the case and laid charge-sheet.
11. The prosecution by examining PWs.1 to 3, 8 and 9 could able to establish that by taking advantage of the conditions and circumstances, the petitioner/accused trespassed into the house of PW1 and committed rape and when PW2 i.e. the father of PW1 came, he fled away by leaving material objects. Though the learned counsel for the petitioner tried to deny the identity of the accused in view of darkness due to lack of electricity power supply, PWs.1 and 2 have categorically identified the petitioner as the person who committed such act. Admittedly, the petitioner is an acquainted person to both PWs.1 and 2 and hence, their identifying him with the help of cell phone torch light cannot be disbelieved. Evidence of PWs.1 and 2 in this regard gained support from the evidence of PW3. Further, Page 7 of 12 though the learned counsel for the petitioner tried to canvass that PW1 also had love affair with PW6, he failed to prove the same by adducing convincing evidence. Further, the petitioner did not adduce any oral or documentary evidence to substantiate his case.
12. In such factual scenario, the question here to be decided is whether PW1 expressed her consent to the petitioner for participating in such act or not. It is the categorical evidence of PW1 that from the inception she was resisting the pressure exerted by the petitioner to participate in sexual intercourse contending that she was not interested in such things before getting married and she will accede to his desire only after getting married the petitioner with the consent and blessings of elders. It is also the evidence of PW1 that she had love affair with the petitioner and that on the very same day of incident, in the morning also, she refused to accept the desire of the petitioner. Further, it is also the evidence of PW1 that during the course of such act, when the petitioner tried to remove her dress, she resisted the same reiterating her strong opinion and rejection. It is also her evidence that in furtherance of assurance of the petitioner that he would marry her on the next day, she stopped her efforts to resist him. She further stated that after committing such act, the petitioner resiled from his promise and hence, she made cries and hues.
Page 8 of 12
13. Learned Assistant Public Prosecutor appearing for the State vehemently contended that the petitioner committed misdeed and that when the meeting was conducted in the presence of PWs.4 to 6 and the village elders to convince the petitioner to agree for marrying PW1, he refused to marry her making allegations regarding her character and offered to pay Rs.40,000/-. He further contended that the petitioner induced PW1 assuring that he would marry her and later committed breach of promise made in good faith and that if the petitioner did not give such assurance PW1 would not have agreed for such an act and hence the said consent is not a valid consent under Section 90 of IPC.
14. The record shows that after the incident when PW2 went to the house of the petitioner, the petitioner was not found and hence, he locked the house of the petitioner asking his parents to inform his arrival and hence, his parents lodged a complaint in this regard. Basing on such circumstance, learned counsel for the petitioner contended that as a counter blast to the said case, the present case is foisted. However, there is no explanation offered by learned counsel for the petitioner for PW2's locking the house of the petitioner. In-fact, the said fact strengthens the case of prosecution that due to the act of petitioner, out of anger, PW2 went to the house of the petitioner along with others and upon his absence, he locked Page 9 of 12 the door and that since his son committed mistake, parents of the petitioner did not resist the same and later lodged a complaint.
15. In Deepak Gulati Vs. State of Haryana 2, Hon'ble Supreme Court gave dimension of the word 'consent' by distinguishing 'Rape' and 'consensual sex' and observed as under:
"Consent may be express or implied, coerced or misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage, a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her 2 5 (2013) 7 SCC 675 Page 10 of 12 by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."
16. In case of Anurag Soni Vs. State of Chhattisgarh 3, the Hon'ble Apex Court held that the consent of the victim is based on misconception, such consent is immaterial as it is not a voluntary consent. If it is established that from the inception, the consent by the victim is a result of a false promise to marry, there will be no consent, and in such a case, the offence of rape will be made out.
17. In a case between Ganesan Vs. State 4 the Hon'ble Supreme Court held that the sole testimony of the victim, if found reliable and trustworthy, requires no corroboration and may be sufficient to invite conviction of the accused.
18. In a case between Krishan Kumar Mallik Vs. State of Haryana 5 the Hon'ble Supreme Court held that though the victim's solitary evidence in matters related to sexual offences is generally 3 (2019) 13 SCC 1 4 (2020) 10 SCC 573 5 (2011) 7 SCC 130 Page 11 of 12 deemed sufficient to hold an accused guilty, the conviction cannot be sustained if the prosecutrix's testimony is found unreliable and insufficient due to identified flaws and lacunae.
19. When the facts of the case on hand are tested with the touchstone of the law laid down in the above decisions and the evidence of PW1, it can be safely held that the petitioner with a malafide intention, tried his best to convince PW1 to fulfil his lust and when she refused, he trespassed into her house and committed rape. To this extent, the evidence of PW1 gained corroboration from the evidence of PW.2. In such factual scenario, finding the petitioner guilty for the offences punishable under Sections 448 and 376 of IPC by both the Courts below is concerned, this Court finds that both the Courts have rightly found the petitioner guilty and there is nothing either on record or on the grounds urged by the petitioner through this criminal revision case warranting interference of this Court with the above said well considered findings. Further, the petitioner did not adduce any evidence to substantiate his case. The said circumstance gives rise to a presumption under Section 114 of Evidence Act that since there is no evidence to be let-in in support of the case of the petitioner, he did not adduce the evidence on his behalf. In that view of the matter, the petitioner is not entitled for the relief as sought for in this criminal revision case. However, since Page 12 of 12 the offence is of the year 2008 which is prior to enactment of Criminal Law (Amendment) Act, 2013 and since then he is roaming around the Courts by suffering mental agony and hardship, this Court is inclined to take a lenient view insofar as the period of sentence of imprisonment imposed against the petitioner.
20. Accordingly, the petitioner shall suffer rigorous imprisonment for a period of one year on all counts and in addition to the fine amount already paid, the petitioner is directed to pay a fine of Rs.1,10,000/- (Rupees one lakh and ten thousand only) for all counts. Out of the said amount, an amount of Rs.1,00,000/- (Rupees one lakh only) shall be given to the victim and the remaining amount of Rs.10,000/- (Rupees ten thousand only) shall be paid to the State. In default, the petitioner shall suffer the sentence awarded vide the judgments impugned. The petitioner is entitled for the benefit under Section 428 of Cr.P.C. With the above modification in respect of the sentence of imprisonment and fine amount, this Criminal Revision Case is dismissed.
Miscellaneous applications, if any pending, shall also stand dismissed.
____________________ E.V.VENUGOPAL, J Dated :30-04-2024 abb