Desireddi Venkata Rami Reddy vs The State Of A.P. Another
2021 Latest Caselaw 1396 AP

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             THE HON'BLE SRI JUSTICE A.V.SESHA SAI

              CRIMINAL PETITION No.6204 OF 2013
ORDER:

In the present Criminal Petition, filed under Section 482 of

the Code of Criminal Procedure, 1973, the petitioner, who is the

accused in Sessions Case No.155 of 2013 on the file of the Court

of VIII Additional District and Sessions Judge-cum-Special

Sessions Judge for Trial of the Offences against Women,

Rajamahendravaram, East Godavari District, is seeking

quashment of the said Sessions Case. The offences alleged in

the charge sheet are Sections 363, 366A and 376 I.P.C.

2. Sum and substance of the case of the prosecution is

that the acquaintance of the accused with the daughter of the de

facto complainant (2nd respondent herein), who was a

D.Pharmacy student at relevant point of time, led to a situation,

where the accused had taken away the daughter of the de facto

complainant and married her and they jointly lived at

Gummadidhala of Medak District, Telangana State. Though

initially the police, on the complaint of the 2nd respondent

herein, registered the crime as a case of 'girl missing', after

recording statement of the girl-L.W.2, altered the F.I.R. and

inserted Sections 363, 366A and 376 I.P.C.

3. Heard Smt. M.Indrani, learned counsel for the

petitioner and Sri S.V.Sainath, learned Special Assistant Public

Prosecutor for the State. Despite service of notice, there is no

representation on behalf of the de facto complainant-2nd

respondent herein.

4. Learned counsel for the petitioner contends that the

prosecution launched against the petitioner is a patent abuse of

process of law; that there are no ingredients of the provisions of

law, mentioned in the charge sheet, in the case of the

prosecution; and that the further continuation of the

prosecution against the petitioner is not warranted, as both the

petitioner and L.W.2 got married and are leading their lives with

their respective spouses.

To bolster her submissions, learned counsel for the

petitioner takes support of the following judgments:

(1) Judgment of the Allahabad High Court (Lucknow Bench) in Misc. Bench No.3519 of 2015 dated 23.07.2015 in the case ofShaheen Parveen and others v. State of U.P. and others1.

(2) Judgment of the Allahabad High Court (Lucknow Bench) in Misc. Bench No.18314 of 2016 dated 16.09.2016 in the case of Basanti and others v. State of U.P. and others2.

(3) Judgment of the Hon'ble Supreme Court in the case of Maheshwar Tigga v. The State of Jharkhand3.

(4)Judgment of the Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar v. State of Maharashtra and another4.

2015(7) ADJ 713 = 2016(2) ALJ 47

2017(1) ACR 609 = 2016(10) ADJ 57

Criminal Appeal No.635 of 2020 of Hon'ble Supreme Court decided on 28.09.2020

(2019)9 Supreme Court Cases 608

5. Per contra, it is strenuously argued by the learned

Special Assistant Public Prosecutor that in the absence of any

one of the contingencies of Section 482 Cr.P.C., the present

Criminal Petition is not maintainable before this Court; that

unless the full-fledged trial takes place, the truth in the

allegations cannot be un-earthed and having regard to the

seriousness in the accusations, further proceedings cannot be

scuttled by way of the present Criminal Petition. It is further

vehemently contended by the learned Public Prosecutor that

having regard to the provisions of Section 114A of the Indian

Evidence Act, 1872, the present Criminal Petition is not

maintainable.

In support of his contentions, learned Special Assistant

Public Prosecutor places reliance on the judgment of the Hon'ble

Apex Court in the case of State of Madhya Pradesh v. Ajab

Singh5.

6. In the light of the contentions recorded supra, now it

needs to be verified as to whether the accused-petitioner herein

has made out any case, warranting indulgence of this Court

under Section 482 Cr.P.C. and whether the continuation of the

proceedings against the petitioner is permissible?

7. The provisions of law, which are germane and

relevant for the purpose of adjudicating the issues in the present

Criminal Petition, are Sections 361, 363, 366A, 375 and 376 of

the Indian Penal Code (I.P.C.). Section 361 I.P.C. defines the

(2015) 13 Supreme Court Cases 382

term, 'kidnapping from lawful guardianship' and the said

provision of law reads as follows:

"Kidnapping from lawful guardianship.-- Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

8. Section 363 I.P.C. stipulates as infra:

"Punishment for kidnapping.--Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

9. It is very much lucid and crystal clear that in order

to punish an individual for the offence of kidnapping, there must

exist the elements of taking and enticing. In the case on hand,

though the police registered the case against petitioner initially

on the complaint of L.W.1-father of the girl as 'girl missing', after

recording the statement of the girl-L.W.2, altered Sections of Law

and inserted Sections 363, 366A and 376 I.P.C. A copy of the

said statement is filed as a material paper and a reading of the

statement of the girl, in clear terms, shows that L.W.2 went to

Vijayawada voluntarily on her own accord and after her joining

with the accused, both of them went to Gummadidala near

Hyderabad and came back to Sattupalli, the native place of the

accused, and got married at Sattupalli in Sivalayam and

thereafter went back to Gummadidala. In the said statement,

there is absolutely no allegation that the accused resorted to the

act of kidnapping. Therefore, it can safely be concluded that the

ingredients of Sections 361 and 363 I.P.C. are conspicuously

absent in the case on hand.

10. Coming to Section 366A I.P.C.--- The said provision

of law reads as follows:

"Procuration of minor girl.--Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine."

11. As per the said Section of Law, one who induces any

minor girl under the age of 18 years to go from any place or to

do any act with intent that such girl may be or knowing that it is

likely that she will be forced or seduced to illicit intercourse with

another person shall be punishable with imprisonment which

may extend to ten years, and shall also be liable to fine. In the

case on hand, the said contingency is also conspicuously

absent. As such, the prosecution, under the said provision of

law, is also not sustainable.

12. Coming to Section 376 I.P.C.--- It may be apt and

appropriate to refer to Sections 375 and 376 I.P.C. The said

provisions of law read as under:

"Section375. Rape.--A man is said to commit "rape"if he--

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,under the circumstances falling under any of thefollowing seven descriptions:--

First.--Against her will.

Secondly.--Without her consent.

Thirdly.--With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly.--With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.--With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.--With or without her consent, when she is under eighteen years of age.

Seventhly.--When she is unable to communicate consent."

"376. Punishment for rape.--(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever,--

(a) being a police officer, commits rape--

(i) within the limits of the police station to which such police officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a womanin such public servant's custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman,shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainderof that person's natural life, and shall also be liable to fine."

13. The alleged offence took place in the year 2009 and

amendment to clause (vi) of Section 375 I.P.C. came into force

with effect from 03.02.2013 vide the Act 13 of 2013 and by

virtue of the said amendment, age of the girl had been enhanced

from 16 years to 18 years and, obviously, by the time the alleged

offence took place, the girl was 17 years 9 months. Therefore,

the said provision of law, which came into effect subsequent to

the alleged offence, cannot be made applicable. Therefore, the

prosecution, under Section 376 I.P.C., is also not permissible.

14. According to the learned counsel for the petitioner,

both the accused and L.W.2 got married and are leading their

marital lives with their respective spouses peacefully. It is also

pertinent to note that the petitioner approached the Human

Rights Commission and the Human Rights Commission

recorded statement of the girl, wherein she categorically stated

that she was never kidnapped.

15. In this context, it may be appropriate to refer to the

judgments cited by the learned counsel for the petitioner and the

learned Special Assistant Public Prosecutor.

16. Coming to the judgments cited by the learned

counsel for the petitioner--- In Shaheen Parveen's case (1

supra), the Allahabad High Court at paragraph Nos.3, 15, 25,

28, 29 and 30 held as follows:

"3. In the short counter-affidavit, it has been stated that the prosecutrix/victim is carrying a pregnancy of 31 weeks (Annexure - SCA-2). In paragraph 4 of the affidavit, it has been admitted that the prosecutrix/victim did not support the prosecution case in her statement recorded under Section 164 Cr.P.C. (Annexure - SCA-3). The Investigating Agency, however, is conducting that offence has been committed, on the ground that at the point in time when the prosecutrix went in the company of petitioner No.2, she was less than 18 years of age.

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15. If the statement of the prosecutrix, above noted, is taken into account, it becomes evident that ingredients of the offence under Sections 363/366 of the Indian Penal Code in regard to coercion, kidnapping or abduction allegedly committed by Sarfaraj, are not satisfied. The provisions of Section 363 of the Indian Penal Code are required to be considered in context of provisions of Section 361 of the Indian Penal Code, it has to be established by the prosecuting agency that the accused/Sarfaraj took or enticed the prosecutrix out of the keeping of the lawful guardian of the prosecutrix, without the consent of the

guardian/respondent No.4. In the case in hand, it is the case of the prosecutrix herself that she of her free will went with Sarfaraj, lived with him, wants to live with him and is expecting his child. Element of coercion and enticement by Sarfaraj is absent, although consent of the guardian had not been taken.

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25. When the above noted situation is considered in context of the facts and circumstances of the present case, it would become evident that the victim (petitioner No.1) was a few months short of attaining age of 18 years. The said petitioner had attained age of discretion, however, not age of majority. Petitioner No.1, the victim in her statement recorded under Section 164 Cr.P.C. has clearly demonstrated that it was who went of her free will and accord on 10.2.2014 with Mohd. Sarfaraj, without any coercion, and stayed with him, and got married to him willingly. It is a consensual act on the part of petitioner No.1 all through. Such clear stand of the victim makes it evident that Mohd. Sarfaraj respondent No.2 cannot be attributed with coercing petitioner No.1, inducing petitioner No.1 or kidnapping or abducting her in commission of offence, as alleged. Surely, a girl who has attained an age more than 17 years and who is already carrying pregnancy cannot be stated to have not attained age of discretion. In such circumstances, a technicality in law would not be attracted. The Court has not been shown any material which would indicate coercion, inducement or forceful act on the part of Sarfaraj (petitioner No.2) so as to conclude that offence has been committed by him.

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28. The stand of the Prosecuting Agency that the victim was a few months below age of majority when she joined the company of the accused/petitioner No.2, and therefore offence has been committed, cannot be accepted if ground reality is taken into account. It has

come on record that the prosecutrix is an expecting mother and is carrying a pregnancy of 31 weeks. Coupled with this fact is the statement of the prosecutrix wherein she has said that she was neither kidnapped nor abducted, rather has been living with petitioner No.2 as his wife. It is the prosecutrix who went in the company of the accused, willingly, knowingly, and rather than the accused taking the prosecutrix out of the custody of the lawful guardian; the victim herself had eloped with petitioner No.2. In the considered opinion of this Court, substantial justice cannot be sacrificed at the altar of technicality, as is being concluded by the Investigating Agency.

29. In view of above, petitioner No.2 cannot be said to have committed offence either under Section 363 I.P.C. read with Section 361 I.P.C. or under Section 366 I.P.C.

30. In the above noted facts and circumstances, we are of the view that ends of justice would be served if the petition is allowed."

17. In Basanti's case (2 supra), the Allahabad High Court

at paragraph Nos.15, 22 and 23 held as under:

"15. We have taken note of the law as declared by the Hon'ble Supreme Court of India in Rajiv Thapar and others versus Madan Lal Kapoor: (2013)3 SCC 330. In the said judgement, the following has been held in the relevant portion:-

"29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial.

The same parameters would naturally be available

for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecutions/complainants case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/ complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/ complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising

therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused." (Emphasised by us) X X X X X

38. We are persuaded to conclude from the facts and circumstances of the case exhaustively discussed in the foregoing paragraphs, that all the steps delineated in the paragraph 23 above, can be answered in the affirmative, on the basis of the material relied by the accused, more particularly, the post-mortem examination report dated 28.9.1992 conducted by a Medical Board comprising of four doctors, whose integrity has not been questioned by the respondent-complainant; the chemical analysis findings contained in the Central Forensic Science Laboratory's report dated 9.2.1993 which has not been disputed by the respondent- complainant; the inquest report of the SDM, Delhi, dated 6.7.1993, findings whereof have been painstakingly recorded by involving the respondent- complainant; the letter of Rajiv Kapoor (the brother of the deceased) dated 22.9.1992 addressed to Dr. Monica Thapar just four days before her death, the contents and authenticity whereof are not subject matter of challenge at the hands of the respondent- complainant; and finally, the telephone bills produced by the appellants-accused substantiating consistent and regular contact between the rival families, which have not been questioned. We, therefore, have no hesitation in concluding, that the judicial conscience of the High Court ought to have persuaded it, on the basis of the material examined by it, to quash the criminal proceedings initiated against the appellants-accused. We, therefore, hereby quash the aforesaid proceedings.

39. Despite the conclusion recorded hereinabove, we are of the view, that in the facts and circumstances of this case, there should have been no difficulty

whatsoever for the High Court to have exercised its judicial conscience for invoking the power vested in it under Section 482 of the Cr.P.C. From the narration of the facts recorded above, it emerges, that even though the respondent-complainant Madan Lal Kapoor, in his complaint dated 6.7.1993, adopted a clear and categoric stance, that his daughter Dr. Monica Thapar had been poisoned to death, before the Additional Sessions Judge, Delhi, the respondent-complainant ventured to suggest, that the appellants-accused had strangulated her. The Additional Sessions Judge, Delhi, summoned two of the doctors who were members of the Medical Board which had conducted the post-mortem examination, and sought clarifications from them. He also recorded the statement of one of the said doctors. The Additional Sessions Judge, thereupon, ruled out the plea of strangulation. When the respondent-complainant himself was uncertain about the manner in which his daughter had allegedly died, the High Court should have viewed the matter keeping in mind the likelihood of the hurt caused to a father who had lost his daughter within one year of her marriage. The matter needed to have been evaluated, on the basis of one of the parameters laid down in State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 Supp. (1) SCC 335, namely, whether the criminal proceedings initiated by Madan Lal Kapoor (the respondent-complainant) were actuated by malice and ulterior motive for wreaking vengeance on the accused with a view to spite him due to some private/personal grudge.

40. There is yet another reason emerging from the facts of the case which needed to be kept in mind. Madan Lal Kapoor (the respondent-complainant) had continued to represent before the SDM, Delhi, that he would produce the mother of the deceased,

who knew the facts best of all. Despite that, the mother of the deceased did not appear in the inquest proceedings to record her statement, even though a number of opportunities were afforded to the respondent-complainant to produce her. The permissible inference is that he was himself not privy to the facts. The fact that the mother of the deceased had not appeared to record a statement against the appellants-accused has to have some reason/justification. Would a mother who believes that her daughter had been poisoned/strangulated, restrain herself from recording her statement, despite the persuasion of her husband? Probably not. The instant factual position has been recorded hereinabove, not for the sake of determination of the present controversy. In a factual situation not as clear as the one in hand, facts such as these, could be taken into consideration by a High Court for recording its satisfaction, on the parameters formulated above.

41. For the reasons recorded hereinabove, criminal proceedings against the appellants-accused are hereby set aside. The order of the High Court is accordingly also set aside, but on grounds different from those taken into consideration by the High Court. The instant appeal, accordingly succeeds."

(Emphasised by us)"

22. We are of the considered view that continuance of proceedings shall be an exercise in futility. Petitioner No.1 the alleged kidnappee is the best witness and the only victim of the incident of kidnapping. It is the case of petitioner No.1, that she had not been kidnapped, rather had gone with petitioner No.2 of her own accord. In such circumstances, prosecution of the case would result in wastage of precious court time.

23.We are of the view that criminal proceedings have been initiated at the instance of respondent No.4 in malicious prosecution because her daughter petitioner No.1 refused to abide by directions of parents in not getting married to petitioner No.2. It is evident that the impugned proceedings have been initiated in abuse of the process of the law and process of the court. The ends of justice would be secured by putting an end to this lis."

18. In Pramod Suryabhan Pawar'scase (4 supra), the

Hon'ble Supreme Court held at paragraph Nos.16, 17, 18 and 21

as follows:

"16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:

"21. ... 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 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.

17. In Uday v State of Karnataka, the complainant was a college going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The court observed that in these circumstances the accused's promise to marry the complainant was not of immediate relevance to the complainant's decision to engage in sexual intercourse with the accused, which was motivated by other factors:

(2003) 4 SCC 46.

"25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if

it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married..." (Emphasis supplied)

18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.

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21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the

basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 of the IPC has occurred."

19. Coming to the judgment cited by the learned Special

Assistant Public Prosecutor---In Ajab Singh'scase (5 supra), the

Hon'ble Supreme Court held at paragraph Nos.14 and 15 as

under:

"14. Significantly, if the age of the prosecutrix is accepted as below 16 years, then the prosecution has discharged its burden with regard to the offence of rape under Section 376 and the finding recorded on the offence of kidnapping and rape and there is a presumption under Section 114-A of the Evidence Act in favour of the prosecution that the offence is committed by the accused. The accused have not adduced rebuttal evidence in this regard to disprove that the offence of rape is not committed by them.

15. The trial court being a fact-finding court had the opportunity to examine the demeanour of the prosecution witnesses and it applied its mind and

properly appreciated the evidence on record and recorded the finding of fact on the charges levelled against the accused after accepting the prosecution case, particularly the evidence of the prosecutrix. PW 5, PW 6 and PW 9. The finding on the charge of rape was required to be accepted by the High Court, however, instead of that, it has wrongly reversed the finding, after setting aside the finding of fact recorded by the trial court on erroneous approach by referring to the evidence of medical report (Ext. P-3) and accepting the evidence of PW 5, the evidence which could not have been accepted in view of the cogent oral and documentary evidence by PW 9, PW 15 and PW 16 (the prosecutrix). Furthermore, there is documentary evidence on record i.e. Ext. P-16 and Ext. P- 17, that the date of birth of the prosecutrix is below 16 years as on the date of the occurrence. Therefore, the finding recorded at paras 8, 9 and 11 of the impugned judgment and order and placing reliance on the judgment of this Court in Ramdeo Chauha and the report of PW 5 are inapplicable to the fact situation. Therefore, the said findings are liable to be set aside and are accordingly set aside."

20. It is required to be noted in this context that Section

114A of the Indian Evidence Act came into effect from

03.02.2013 by way of Act 13 of 2013. The alleged offence in the

case on hand took place in the year 2009. Therefore, the

judgment of the Hon'ble Apex Court sought to be relied upon by

the learned Special Assistant Public Prosecutor would not

render any assistance to the prosecution.

21. In view of the above reasons and the findings

recorded and the principles laid down in the above referred

judgments, this Court has absolutely no scintilla of hesitation to

hold that continuation of the prosecution against the petitioner

herein undoubtedly tantamounts to abuse of process of law.

22. For the aforesaid reasons and having regard to the

law laid down in the aforesaid judgments cited by the learned

counsel for the petitioner, the Criminal Petition is allowed,

quashing the proceedings in Sessions Case No.155 of 2013 on

the file of the Court of VIII Additional District and Sessions

Judge-cum-Special Sessions Judge for Trial of the Offences

against Women, Rajamahendravaram, East Godavari District.

Miscellaneous Petitions pending, if any, in the Criminal

Petition shall stand closed.

__________________ A.V.SESHA SAI, J 05.03.2021 Note: LR copy to be marked B/O siva

THE HON'BLE SRI JUSTICE A.V.SESHA SAI

CRIMINAL PETITION No.6204 OF 2013

05.03.2021

siva

*THE HON'BLE SRI JUSTICE A.V.SESHA SAI

+CRIMINAL PETITION No.6204 OF 2013

% 05.03.2021

# Between:

Desireddi Venkata Rami Reddy, S/o.Sanjeeva Reddy, 27 years, Occ: Private Employee, R/o.H.No.33-125-4, Rajivgandhi Nagar, I.D.A., Jeedimetla, R.R.District.

- - -Petitioner/Accused And

1. The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court, Hyderabad and another --- Respondents/Complainant

! Counsel for the Petitioner : Smt. M.Indrani

^ Counsel for Respondent No. 1 : Sri S.Venkat Sainadh, Special Assistant Public Prosecutor

< Gist:

> Head Note:

? Cases referred:

1) 2015(7) ADJ 713 = 2016(2) ALJ 47

2) 2017(1) ACR 609 = 2016(10) ADJ 57

3) Criminal Appeal No.635 of 2020 of the Hon'ble Supreme Court decided on 28.09.2020

4) (2019)9 Supreme Court Cases 608

5) (2015)13 Supreme Court Cases 382

This Court made the following: