Telangana High Court
K.Vijay Kumar , Vijay vs The State Of A.P. on 20 February, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL REVISION CASE No.730 OF 2009
ORDER:
1. This Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'), against the Order dated 27.04.2009 in Crl.A.No.30 of 2007, on the file of the Additional Metropolitan Sessions Judge, Cyberabad, N.T.R. Nagar, Hyderabad, confirming the judgment dated 11.01.2007 in C.C.No.166 of 2005, on the file of the X Metropolitan Magistrate, Cyberabad at Malkajgiri.
2. The de facto complainant/PW.1 lodged a complaint stating that she was married to one Surya Prakash in the year 1998 and due to his harassment, she left him and since then, she is residing at her parents' house. While so, she got acquainted with the petitioner who was staying opposite to their house and when the parents of PW.1 left for work, petitioner used to go to her house regularly and made false promise that he would marry her and had sexual intercourse with her. When the neighbors questioned, he informed that he would marry her. Subsequently, PW.1 became pregnant and when she asked him to marry her, the petitioner stated that he was not responsible for the 2 pregnancy and will not marry her. Aggrieved by the same, PW.1 lodged a complaint before the police and after completion of investigation, the police filed charge sheet against the petitioner for the offence punishable under Section 493 of IPC.
3. The trial Court having examined de facto complainant/victim as P.W.1 and five other circumstantial witnesses as PWs.2 to 6 found that the prosecution has failed to prove the guilt of the petitioner that he deceitfully made a belief in the mind of PW.1/victim that she is legally married to him and had sexual intercourse with him in that belief. Therefore, ingredients under Section 493 of IPC are not made out. However, the trial Court having found that the petitioner has made a false promise to P.W.1 that he will marry her and had sexual intercourse and thereby, cheated her by refusing to marry her when she became pregnant, has convicted the petitioner under Section 420 of IPC. Against the said judgment, the petitioner filed an appeal before the lower Appellate Court and the learned Sessions Judge concurred with the findings of the trial Court and confirmed the conviction and sentence. 3
4. The learned counsel appearing for the revision petitioner would submit that both the Courts below have grossly erred in recording the conviction under Section 420 of IPC, when the charge under Section 420 of IPC was not framed. Having found that the petitioner was not guilty for the charge framed under Section 493 of IPC, the trial Court and the appellate Court ought not to have held that the petitioner was guilty for the offence punishable under Section 420 of IPC. In fact, the relation between the petitioner and victim was consensual in nature. Further, he relied on the judgments of the Hon'ble Apex Court and the High Court of Andhra Pradesh in Uday Vs. State of Karnataka 1, K.Ashok Kumar Reddy Vs. State of Andhra pradesh 2, Akella Sushmita Vardhani Vs. Mohammed Mirza Hassan 3 and Sammangi Naga bhushanam Vs. State of Andhra pradesh 4.
5. On the other hand, learned Additional Public Prosecutor argued that the trial Court as well as the lower appellate Court has not committed any error in recording the conviction against 1 2003 (1) ALT (Crl.) 326 (SC) 2 2008 (1) ALD (Crl.) 995 (A.P.) 3 2011 (2) ALD (Crl.) 14 (A.P.) 4 2009 (1) ALD (Crl.) 155 (A.P.) 4 the petitioner for cheating. It is the specific case of PW.1 that petitioner had sexual intercourse with her on the promise of marriage and when she became pregnant, he refused to marry her stating that he is not responsible for her pregnancy, for which reason, complaint was filed.
6. A charge was framed under Section 493 of IPC. It is specifically stated that the petitioner had sexual intercourse with PW.1 on the promise of marriage. Even though the trial Court found that DNA test was not performed, the evidence of PW.1/victim and PWs.2 to 6/circumstantial witnesses is sufficient to infer that the petitioner has impregnated the petitioner on the false promise of marriage and had committed the offence of cheating under Section 420 of I.P.C.
7. Under Section 464 of Cr.P.C, the charge is of no consequence, unless it causes prejudice to the accused. In the present case, though the charge was framed under Section 493 of IPC, the contents of the charge is that the petitioner had in fact stated that he was going to marry her and had sexual intercourse with her. The said content of charge found basis to record conviction under Section 420 of IPC. I do not find force 5 with the argument of the learned counsel for the petitioner that since charge was framed under Section 420 of IPC, the petitioner was prejudiced during trial.
8. To attract an offence of cheating, it is necessary that the intention to cheat should be present from the inception of the relationship. PW.1 was a married woman and she stated that she lived with her husband for some time and later she left him and thereafter, stayed in her parents' house. According to her, in the absence of her parents, the petitioner used to visit her and had physical relationship with her. In the said circumstances, it cannot be said that PW.1 was under the misconception that the petitioner would marry her and for which reason, she has consented for sexual intercourse. When the earlier marriage was subsisting and there was no divorce or any legal process was undertaken for dissolving the marriage, the question of petitioner marrying PW.1 does not arise. Only for the reason of her pregnancy, both the trial Court as well as lower appellate Court committed an error in concluding that the petitioner had cheated her. In the present facts of the case, none of the ingredients of Section 420 of IPC are made out. Therefore, the conviction 6 recorded under Section 420 of IPC against the petitioner is not appropriate and the same is hereby set aside.
9. Accordingly, the Criminal Revision Case is allowed.
As a sequel, miscellaneous applications, if any, pending in this appeal shall stand closed.
_________________ K.SURENDER, J Date: 20.02.2024 dgr