K.Narendra vs State Of Ap
2021 Latest Caselaw 394 AP

  IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

                                ****
              CRIMINAL APPEAL No.444 OF 2019

Between:

Kagitha Narendra @ Sunny,
S/o.Devadanam, Aged 24 years,
R/o.Gollamudipadu Village,
Ponnur Mandal,
Guntur District.                       ---         Appellant/A-1.

                                       And
The State of A.P.,
Through SHO, Ponnur rural Circle,
Rep. by Public Prosecutor,
High Court of A.P., Amaravathi.   ---              Respondent.


DATE OF JUDGMENT PRONOUNCED                  :     28.01.2021

SUBMITTED FOR APPROVAL:

           HON'BLE SRI JUSTICE JOYMALYA BAGCHI


1. Whether Reporters of Local Newspapers
   may be allowed to see the judgment?                   Yes/No


2. Whether the copy of judgment may be
   marked to Law Reporters/Journals?                     Yes/No


3. Whether His Lordship wish to
   see the fair copy of the judgment?                    Yes/No




                                       ______________________________
                                       JUSTICE JOYMALYA BAGCHI
                                   2                     JB, J
                                                 Crl.A.No.444 of 2019




           * HON'BLE SRI JUSTICE JOYMALYA BAGCHI

                + CRIMINAL APPEAL No.444 OF 2019


% 28.01.2021

# Between:

Kagitha narendra @ Sunny,
S/o.Devadanam, Aged 24 years,
r/o.Gollamudipadu Village,
Ponnur Mandal,
Guntur District.                      ---       Appellant/A-1.

                                      And
The State of A.P.,
Through SHO, Ponnur rural Circle,
Rep. by Public Prosecutor,
High Court of A.P., Amaravathi.   ---           Respondent.



! Counsel for the Appellant           : Sri Rambabu Koppineedi/

                                       Sri T.D.Phani Kumar

^ Counsel for Respondent              :Additional Public rosecutor

< Gist:


> Head Note:


? Cases referred:




This Court made the following :
                                         3                             JB, J
                                                               Crl.A.No.444 of 2019



           THE HON'BLE SRI JUSTICE JOYMALYA BAGCHI

                     CRIMINAL APPEAL No.444 OF 2019
                       (Taken up through video conferencing)

JUDGMENT:

This Appeal is directed against the judgment dated

03.06.2019 passed by V Additional District and Sessions Judge-

cum-Special Judge for Trial of Offences against Women, Guntur, in

Sessions Case No.211 of 2017, wherein the appellant/A.1 was

found guilty for the offences punishable under Sections 376(1) and

417 of Indian Penal Code (I.P.C.) and sentenced to undergo

rigorous imprisonment for a period of seven years and to pay a fine

of Rs.1,000/-, in default, to undergo simple imprisonment for a

period of two months for the offence punishable under Section

376(1) I.P.C. He was further sentenced to undergo rigorous

imprisonment for a period of one year for the offence punishable

under Section 417 I.P.C. Both the sentences were directed to run

concurrently.

The prosecution case, in brief, is as follows:

The victim-PW.1 was a student studying III year B-Tech

(ECE) in Vignan University, Vadlamudi Village, while the appellant

was pursuing II year B-Tech (Civil) in St.Mary's Engineering

College, Narakoduru Village. Both belonged to the same village and

it is alleged PW.1 and the appellant used to meet at

Gollamudipadu cross road of Munipalli Village in the morning in

order to go to their colleges by availing separate buses. Friendship

developed between them and the appellant used to sent messages

to PW.1. Once the appellant sent obscene pictures and messages 4 JB, J Crl.A.No.444 of 2019

to PW.1. She reported the matter to her parents-PWs.2 and 3. The

issue was taken up with the appellant and his parents. Appellant

assured that he would not repeat such behavior in future. On

23.07.2014 in the morning the appellant met PW.1 at the bus

stand and apologized for his earlier conduct. He told her that it

was his birthday and offered her sweets and coke. After consuming

them, PW.1 felt giddy. Appellant offered to take her to the hospital

and both of them boarded an auto. When they reached Manchala,

she lost consciousness. After two hours, she regained

consciousness and found herself in a dark room without clothes.

On enquiry, appellant stated that he had administered intoxicants

and had sexual intercourse with her. He threatened he had taken

obscene photographs and videos which he would upload in social

media if she did not marry him. In view of such threat, PW.1

agreed to marry the appellant on condition that he deletes the

photographs. He accepted such proposal. Thereafter, on her way

back, she noticed the name of the premises was Varun Lodge,

Guntur. Subsequently, the appellant continued to hold out threats

and PW.1 was cohabited with him in the same lodge two or three

times. On 25.02.2016 at 12:00 Noon, appellant asked her over

phone to come to a temple near quarry of Narakoduru, Guntur.

When she reached the place, she did not find the appellant, but his

parents and relations threatened her. She sent a message to the

appellant. After ten minutes, the appellant came to that place and

assured that he would convince his parents. He also requested her

to leave her house without knowledge of her parents to solemnize

marriage with him. As advised, on 26.02.2016 she left her house

and came to the house of one Divya at Pedakakani and stayed 5 JB, J Crl.A.No.444 of 2019

there for two days. But, appellant did not contact her. His friend

Ramesh told her the appellant had been taken into custody in view

of missing report lodged by her parents. In the night of 29.02.2016

Ramesh took her to the residence of Vidyasagar, a caste elder. She

stayed in the house of Vidyasagar. After two days, the matter was

placed before caste elders. While her parents did not attend the

meeting, appellant and his relations came to the meeting and

father of the appellant stated that his son may roam with 100

women and he is not agreeable to marry him off to them. As the

appellant and his relations refused to marry, she approached

Ponnur Rural Police Station on 09.03.2016 and lodged a

complaint-Ex.P.1. She was examined in the Government Hospital,

in the course of investigation. Appellant was arrested and his

mobile phone was seized. Relevant registers of Varun Lodge (MOs.1

and 2) were seized in the presence of Manager-PW.4.

After filing charge sheet, the case was taken on file against

the appellant and his relations (A-2 to A-5) for the offences

punishable under Sections 376(1), 417 and 506 read with 34 I.P.C.

by the learned Additional Junior Civil Judge, Ponnur. Since the

offences are triable by the Court of Sessions, the case was made

over to the Court of Principal District and Sessions Judge, Guntur

and transferred to the Court of learned V Additional District and

Sessions Judge-cum-Special Judge for trial of offences against

women, Guntur. Charges under Sections 376(1), 417 and 506 read

with 34 I.P.C. were framed against the accuseds, which were read

over and explained to them in Telugu. They denied the same and

claimed to be tried.

                                    6                      JB, J
                                                   Crl.A.No.444 of 2019

During the course of trial, the prosecution examined PWs.1

to 14 and marked Exs.P.1 to 17 and M.Os.1 to 3. Ex.D.1 is the

contradiction marked through PW.3. After closure of prosecution

evidence, the accuseds were examined under Section 313 Cr.P.C.,

wherein the incriminating materials against them were put to them

but they denied the circumstances and asserted their innocence.

The evidence of the accuseds was one of innocence and false

implication and Ex.D.1 i.e., prior statement of PW.3, mother of the

victim, given in police station was exhibited in order to disclose the

contents of the letter, which the prosecution had withheld during

trial.

Upon analysis of the aforesaid evidence, the trial judge by

judgment dated 03.06.2019 convicted and sentenced the appellant

as aforesaid. Other accuseds were acquitted of the charges leveled

against them.

Sri T.D.Phani Kumar, learned counsel appearing for the

appellant, argued the prosecution case with regard to cohabitation

on the score of extortion and blackmail on 23.07.2014 has not

been proved. MOs.1 and 2 do not show any entry with regard to

the appellant and the victim staying in the hotel on that day.

PW.4-Manager of the hotel also did not state that the victim had

come to the hotel in an unconscious state. Mobile Phone of the

appellant, seized and verified during investigation, does not show

any obscene pictures of the victim-PW.1. The conduct of the victim

in keeping silent for almost two years from the incident with regard

blackmail also renders such allegation highly improbable. The

evidence on record show the parents of the victim-PW.1 were 7 JB, J Crl.A.No.444 of 2019

unaware of such incident. They were opposed to the free mixing

between the parties as would appear from the evidence of PW.5.

As a result, PW.1 left her residence after leaving behind a letter.

Letter has not been produced in Court. On the other hand, Ex.D.1-

Statement given by PW.3 to the investigating officer divulges the

contents of the letter, wherein no inducement on the part of the

appellant is alleged. On the other hand, it appears PW.1 on her

own volition left the house as her parents were not supporting her

mixing with the appellant. Promise to marry would not constitute

rape when the prosecution case of dishonest intention or extortion

at the inception of the relationship has not proved. Hence, the

appellant is entitled to an order of acquittal.

On the other hand, learned Additional Public Prosecutor

submits that cohabitation between the appellant and PW.1 has

been proved beyond doubt. Entries in Varun Lodge (MOs.1 and 2)

as well as evidence of PW.4 and the medical evidence of PW.12

corroborates the version of PW.1 with regard to sexual relationship

between them. The appellant had administered intoxicants in coke

and had taken obscene pictures of victim to compel her to agree to

cohabit with him for two years. Thereafter, he had refused to marry

her. Hence, the prosecution case is proved beyond doubt. In light

of the evidence of PW.1, lack of consent is to be presumed in terms

of Section 114-A of the Evidence Act. He relies on decision in

Anurag Soni vs The State of Chhattisgarh1 in support of his

contentions.

    2019 (13) SCC 1
                                    8                           JB, J
                                                        Crl.A.No.444 of 2019

On an analysis of the evidence of PW.1 it appears that PW.1

and the appellant were college going students. She was studying

III year B-Tech in Vignan College, while the appellant was studying

II year B-Tech (Civil) in St.Mary's Engineering College, Narakoduru

Village. As they belonged to the same village, they used to meet in

the bus stand while proceeding to their respective colleges.

Intimacy developed between them and they used to exchange

messages over mobile phone. One day appellant sent obscene

pictures to her and she complained to her parents. Appellant

apologized and assured he would not repeat the same in future.

Thereafter, on 23.07.2014, PW.1 claimed the appellant met her at

the bus stop and offered her sweets and coke as it was his

birthday. After consuming them, she felt giddy. Appellant took her

in an auto rickshaw on the excuse of taking her to a hospital. She

lost her consciousness. After regaining consciousness she found

herself in a dark room without clothes. When she questioned the

appellant, he stated that he had sexual relationship with her when

she was unconscious and had also taken obscene pictures on the

mobile phone. He threatened to upload them if she did not marry

him. As a result, PW.1 was compelled to agree and the appellant

assured that he shall delete the pictures. On similar threats, he

continued to cohabit with her for about two years. Finally, on

25.02.2016, on the request of the appellant, PW.1 came to a

temple but he failed to turn up. On the other hand, his

parents/relations abused the victim. When contacted, the

appellant assured he would convince his relations with regard to

marriage. He also told PW.1 to come out of her house without the

knowledge of her parents so that they may marry. Accordingly, 9 JB, J Crl.A.No.444 of 2019

PW.1 left her residence and stayed in the house of a friend, Divya.

The appellant did not turn up. On the other hand, his friend

Ramesh told PW.1 that the appellant had been arrested on the

missing report lodged by her parents. Subsequently, PW.1 went to

the residence of one of her caste elders namely Vidyasagar on

29.02.2016. Two days later, mediation was held under the

auspices of caste elders. The appellant and his relations refused to

marry her as a result, she lodged a complaint. Apart from PW.1,

her parents-PWs.2 and 3 have been examined. It appears from

their deposition they were unaware of the incident which occurred

on 23.07.2014 or the continuing relationship between PW.1 and

appellant. Upon coming to know PW.1 had left the residence on

26.02.2016, they searched for her and on 29.02.2016, PW.2

(father) lodged missing report (Ex.P-2) at police station. PW.1 had

left behind a letter and her mobile phone. Subsequently, she

returned home and narrated the entire incident to them. In cross-

examination, P.W.3 (mother of the victim) was confronted with her

previous statement to police with regard to the contents of the said

letter left behind by PW.1.

P.W.4 is the Manager of the Hotel, who produced the entry

registers-M.Os.1 and 2. He deposed P.W.1 and appellant came to

the hotel on two or three occasions. In cross-examination, he

admitted that the condition of P.W.1 and appellant was normal

when they visited the lodge. P.W.5 is a local villager who stated

that one day he saw P.W.1 proceeding towards the house of the

appellant and her parents chastised her and took her back.

                                 10                       JB, J
                                                  Crl.A.No.444 of 2019

P.Ws.6 and 7 are the mediators, who were present during

the course of mediation between P.W.1 and the appellant. In the

cross-examination, P.W.6 claimed that police were also present.

P.Ws.8 and 9 were declared as hostile. P.W.10-Medical officer,

examined appellant with regard to potency, while PW.11 examined

the victim and proved the injury report-Ex.P.8. P.Ws.12 to 14 are

the Investigating Officers.

Prosecution case, therefore, rests on the version of P.W.1

that initial cohabitation between her and the appellant was a

product of extortion and blackmail. It is contended by P.W.1 on

23.07.2014 she was intoxicated by administering drugs and raped

by the appellant in Varun Lodge. Her obscene pictures were taken

and she was made to agree to marry him on the threat that the

obscene pictures shall be uploaded on social media. She agreed to

marry on condition the obscene pictures shall be deleted from the

mobile phone. Subsequently, on similar threats, she cohabited

with the appellant two to three times. When her version is tested in

the light of her subsequent conduct and other evidence on record,

allegation of rape by resorting to extortion and blackmail appears

to be apparently absurd and inherently improbable. Firstly,

conduct of the victim (PW.1) is most unnatural. Although, she had

immediately brought a minor indiscretion relating to sharing of

obscene pictures to the notice of her parents-P.Ws.2 and 3, PW.1 is

strangely silent with regard to such gross act of raping her by

administering drugs for about two years. On the contrary, she

continues her association and cohabits with the appellant on a

number of times. A laconic explanation that the appellant held out

threats does not appear to be convincing. P.W.1 deposed she 11 JB, J Crl.A.No.444 of 2019

agreed to marry the appellant on condition he would delete the

obscene pictures. The appellant had assured her, he would do so,

if true, question of continued threat of such score does not arise.

In the alternative, if the appellant had deleted the obscene

pictures, it is highly improbable P.W.1 would have kept quiet and

not promptly informed her parents about such conduct.

Learned Additional Public Prosecutor appearing for the State

has strongly relied on the evidence of P.W.4 and the entries in

M.Os.1 and 2 to corroborate PW.1 with regard to cohabitation at

Varun Lodge. None of these evidence support the prosecution case

that P.W.1 had being taken in an intoxicated/unconscious state to

Varun Lodge in 2014. P.W.4 in cross-examination stated the

condition of P.W.1 when she came to the lodge was normal.

Entries in the register standing in the name of the appellant or

K.Akhil are of 2015 clearly improbablizing any case of cohabitation

under influence of drugs or threat or coercion in 2014 in the said

lodge. That apart, mobile phone of the appellant was also seized in

the course of investigation and its verification does not disclose

any obscene picture of P.W.1 being taken/stored therein. For these

reasons, it is difficult to accept that P.W.1 had been initially

subjected to sexual intercourse under intoxication or had been

blackmailed to cohabit on the threat of disclosure of obscene

pictures. If this part of the prosecution case is not believed, what

remains is one of free mixing between two college going students,

which was not approved by their parents. In fact, PW.5, a

neighbour, stated PW.1 was chastised by her parents, when she

was proceeding to the house of the appellant and she returned

home weeping. On 26.02.2016, P.W.1 left her parents' house and 12 JB, J Crl.A.No.444 of 2019

stayed in the house of Divya. Under what circumstances she did so

is unclear. Although PW.1 claimed that the appellant had induced

her, there is no corroborative evidence in that effect. Neither Divya

nor Ramesh (friend of appellant) has been examined to corroborate

such fact. It appears PW.1 had left behind a letter at the time of

leaving her residence. Such letter though seized by the police was

not produced during trial, which gives rise to an adverse inference

against the prosecution case. During cross-examination of P.W.3,

her former statement to police disclosing contents of the said letter

has been exhibited (Ex.D-1) by the defence. In Ex.D-1, there is no

whisper that the appellant had induced her to leave her residence.

The final aspect of the prosecution case is the refusal of the

appellant to marry the victim in the course of mediation at the

behest of caste elders. P.W.1 claimed when the appellant did not

turn up, she went to the house of Vidyasagar, a caste elder, to

arrange the marriage. Prosecution has not examined Vidyasagar in

whose house the appellant had resided for a couple of days before

mediation. On the other hand, prosecution has examined P.Ws.6

and 7 to prove that the appellant and his relations refused to

perform marriage during mediation. P.W.1 has not spoken of the

presence of the said witnesses during mediation. Even if the

evidence of the said witnesses is accepted, it appears the marriage

proposal fizzled out as the parents of both the parties were not

agreeable. It may be relevant to note parents of P.W.1 at all points

of time were opposed to the free mixing between PW.1 and the

appellant and did not attend the mediation.

                                     13                     JB, J
                                                    Crl.A.No.444 of 2019

In this back drop, one can safely conclude PW.1 had left her

residence as her parents were opposed to her free mixing with the

appellant. There is no convincing evidence that she was induced by

the appellant to do so. Owing to parental opposition, marriage

proposal fizzled out. Cohabitation between consenting adults on

the promise of marriage is not rape unless it is proved the

appellant had in bad faith and with mala fide intentions held out a

false promise of marriage from the inception of the relationship.

Subsequent failure to marry would not invariably lead to an

inference of deceit or dishonest.

In this regard, reference may be made to Kaini Rajan v.

State of Kerala2, Deepak Gulati vs State Of Haryana3,

K.P.Thimmappa Gowda vs State Of Karnataka4, Deelip Singh

@ Dilip Kumar vs State Of Bihar5 and Maheshwar Tigga vs.

State of Jharkhand6.

In the aforesaid catena of decisions, the Apex Court

unequivocally held dishonest intention or bad faith must exist at

the initial stage of the relationship. Mere failure to live up to the

promise of marriage without anything more cannot be a ground to

convict a person of rape. In the present case, allegation of

cohabitation by use of blackmail and/or extortion has not been

proved. Subsequent failure to marry, primarily, arose due to lack

of willingness on the part of parents of both the parties. In this

backdrop, it would be incorrect to come to a conclusion that the

appellant had dishonestly induced PW.1 to cohabit on a false

2013 (9) SC 113

2013 (7) SCC 675

2011 (14) SCC 475

2005 (1) SCC 88

2020 (10) SCC 108 14 JB, J Crl.A.No.444 of 2019

promise of marriage and her consent was vitiated on such

misconception of fact.

Learned Additional Public Prosecutor submits lack of

consent may be presumed under Section 114A of the Indian

Evidence Act, which reads as under:

"114A. Presumption as to absence of consent in certain prosecution for rape. - In a prosecution for rape under clause (a), clause(b), clause (c), clause (d), clause (e), clause (f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (1), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent."

Conditions precedent to attract the statutory presumption

are as follows:

(a) Accused is charged under the aforesaid clauses of sub-

section (2) of Section 376 IPC i.e. case of aggravated rape;

(b) Sexual intercourse is proved;

(c) Victim stated she did not consent to such intercourse.

In the instant case, the appellant had been charged for the

offences punishable under Sections 376(1), 417 and 506 read with

34 I.P.C. and for aggravated rape under sub-section (2) of Section

376 IPC. Hence, the aforesaid presumption does not apply to the

facts of this case.

In support of his contention, learned Additional Public

Prosecutor has relied on Anurag Soni (supra 1). No doubt,

reference has been made to Section 114A of the Indian Evidence 15 JB, J Crl.A.No.444 of 2019

Act in the aforesaid decision. However, the Apex Court in the said

case came to a finding that the accused had dishonest intention

from inception as he had agreed to marry another girl while he co-

habited with the victim. In the instant case, no such incriminating

circumstance to show the existence of dishonest or mala fide

intention on the part of the appellant has been proved and the

cited case is factually distinguishable and of no assistance to the

prosecution.

In the light of the aforesaid, I hold the prosecution has failed

to prove its case beyond reasonable doubt and the appellant is

liable to be acquitted for the charges levelled against him.

In the result, the Criminal Appeal is allowed. The conviction

and sentence recorded against the appellant/A.1 for the offences

punishable under Sections 376(1) and 417 of I.P.C. vide judgment

dated 03.06.2019 in S.C.No.211 of 2017 on the file of V Additional

District and Sessions Judge-cum-Special Judge for Trial of

Offences against Women, Guntur, is set aside and he is acquitted

for the said offences. Consequently, the appellant/A.1 shall be set

at liberty forthwith, if he is not required in any other case or crime.

His bail bond shall stand cancelled after expiry of six months in

terms of Section 437A of Cr.P.C.

As a sequel, Miscellaneous Petitions, if any, pending in this

Criminal Appeal shall stand closed.

______________________________ JUSTICE JOYMALYA BAGCHI

Date: 28.01.2021 Ivd/Mjl Note: L.R. copy to be marked