Seeda Narasimha Rao vs State Of Andhra Pradesh
2023 Latest Caselaw 5153 AP

THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY

      CRIMINAL PETITION NOs.2329 OF 2023 &
                 2722 OF 2023

COMMON ORDER :

     Since these Criminal Petitions are preferred by

different accused in P.R.C.No.3 of 2022 on the file of the

Additional Judicial Magistrate of First Class, Darsi, they

are being taken up together for disposal, by way of this

common order.           Petitioners in Criminal Petition

No.2329 of 2023 are A.2 to A.4, and the petitioner in

Criminal Petition No.2722 of 2023 is A.1, in the aforesaid

P.R.C.

     2.    Basing on a report lodged by 2nd respondent,

police registered a case in crime No.135 of 2022 of Darsi

police station, and after completion of investigation, filed

charge sheet, for the offences punishable under Sections

417, 420, 376, 506, 509 read with 34 IPC, which was

taken on file as P.R.C. No.3 of 2023 on the file of the

Additional Judicial Magistrate of First Class, Darsi.
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      3.    Learned counsel for the petitioners submitted

that even accepting the entire accusations to be true, the

charge sheet does not disclose prima facie case as

against the petitioners.     He further submitted that the

ingredients of the offence punishable under Section 376

IPC   would    not     attract   for   the   reason   that   the

petitioner/A.1 and 2nd respondent-defacto complainant

were in living relationship for a period of more than 3

years.     The learned counsel relied on rulings of the

Hon'ble Apex Court and submitted that the acts of both

the petitioner and 2nd respondent-defacto complainant

are consensual and no offence punishable under Section

376 IPC would be made out as against the petitioners.

He further submitted that in respect of other petitioners,

who are elders, there is a vague and bald allegation that

they abused the defacto complainant.

      In support of his contentions, he relied on the

following decisions.
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       (i) In Uday v. State of Karnataka1, the Hon'ble Apex

Court held thus: (paragraphs 21 to 23 and 25)

     "21. It therefore appears that the consensus of
     judicial opinion is in favour of the view that the
     consent given by the prosecutrix to sexual intercourse
     with a person with whom she is deeply in love on a
     promise that he would marry her on a later date,
     cannot be said to be given under a misconception of
     fact. A false promise is not a fact within the meaning
     of the Code. We are inclined to agree with this view,
     but we must add that there is no straitjacket formula
     for determining whether consent given by the
     prosecutrix to sexual intercourse is voluntary, or
     whether it is given under a misconception of fact. In
     the ultimate analysis, the tests laid down by the
     courts provide at best guidance to the judicial mind
     while considering a question of consent, but the court
     must, in each case, consider the evidence before it and
     the surrounding circumstances, before reaching a
     conclusion, because each case has its own peculiar
     facts which may have a bearing on the question
     whether the consent was voluntary, or was given
     under a misconception of fact. It must also weigh the
     evidence keeping in view the fact that the burden is on
     the prosecution to prove each and every ingredient of
     the offence, absence of consent being one of them.

     22. The approach to the subject of consent as
     indicated by the Punjab High Court in Rao Harnarain
     Singh [AIR 1958 Punj 123 : 1958 Cri LJ 563 : 59 Punj
     LR 519] and by the Kerala High Court in Vijayan Pillai
     [(1989) 2 Ker LJ 234] has found approval by this Court
     in State of H.P. v. Mango Ram [(2000) 7 SCC 224 :
     2000 SCC (Cri) 1331] . Balakrishnan, J. speaking for
     the Court observed: (SCC pp. 230-31, para 13)

     "The evidence as a whole indicates that there was
     resistance by the prosecutrix and there was no
     voluntary participation by her for the sexual act.
     Submission of the body under the fear of terror cannot

1 (2003) 4 SCC 46
                            4




be construed as a consented sexual act. Consent for
the purpose of Section 375 requires voluntary
participation not only after the exercise of intelligence
based on the knowledge of the significance and moral
quality of the act but after having fully exercised the
choice between resistance and assent. Whether there
was consent or not, is to be ascertained only on a
careful study of all relevant circumstances."

23. Keeping in view the approach that the court must
adopt in such cases, we shall now proceed to consider
the evidence on record. In the instant case, the
prosecutrix was a grown-up girl studying in a college.
She was deeply in love with the appellant. She was,
however, aware of the fact that since they belonged to
different castes, marriage was not possible. In any
event the proposal for their marriage was bound to be
seriously opposed by their family members. She
admits having told so to the appellant when he
proposed to her the first time. She had sufficient
intelligence to understand the significance and moral
quality of the act she was consenting to. That is why
she kept it a secret as long as she could. Despite this,
she did not resist the overtures of the appellant, and
in fact succumbed to them. She thus freely exercised a
choice between resistance and assent. She must have
known the consequences of the act, particularly when
she was conscious of the fact that their marriage may
not take place at all on account of caste
considerations. All these circumstances lead us to the
conclusion that she freely, voluntarily and consciously
consented to having sexual intercourse with the
appellant, and her consent was not in consequence of
any misconception of fact.

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
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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. As
stated by the prosecutrix the appellant also made
such a promise on more than one occasion. In such
circumstances the promise loses all significance,
particularly when they are overcome with emotions
and passion and find themselves in situations and
circumstances where they, in a weak moment,
succumb to the temptation of having sexual
relationship. This is what appears to have happened
in this case as well, and the prosecutrix willingly
consented to having sexual intercourse with the
appellant with whom she was deeply in love, not
because he promised to marry her, but because she
also desired it. In these circumstances it would be very
difficult to impute to the appellant knowledge that the
prosecutrix had consented in consequence of a
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      misconception of fact arising from his promise. In any
      event, it was not possible for the appellant to know
      what was in the mind of the prosecutrix when she
      consented, because there were more reasons than one
      for her to consent."

      (ii)   In   Pramod        Suryabhan         Pawar          v.   State   of

Maharashtra & another 2(paragraphs 9, 10 and 14).


      "9. The present proceedings concern an FIR registered
      against the appellant under Sections 376, 417, 504
      and 506(2) IPC and Sections 3(1)(u), (w) and 3(2)(vii) of
      the SC/ST Act. Section 376 IPC prescribes the
      punishment for the offence of rape which is set out in
      Section 375. Section 375 prescribes seven descriptions
      of how the offence of rape may be committed. For the
      present purposes only the second such description,
      along with Section 90 IPC is relevant and is set out
      below:

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

      ***

under the circumstances falling under any of the following seven descriptions--

Firstly.--

Secondly.--Without her consent.

***

Explanation 2.--Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

2 Judgment dated 21.08.2019 in Criminal Appeal No.1165 of 2019

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity."

"90. Consent known to be given under fear or misconception.--A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or"

10. Where a woman does not "consent" to the sexual acts described in the main body of Section 375, the offence of rape has occurred. While Section 90 does not define the term "consent", a "consent" based on a "misconception of fact" is not consent in the eye of the law.

14. In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v. State of Chhattisgarh [Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1 : 2019 SCC OnLine SC 509] , this Court held : (SCC para 12)

"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined

under Sections 375 IPC and can be convicted for the offence under Section 376 IPC."

Similar observations were made by this Court in Deepak Gulati v. State of Haryana [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] (Deepak Gulati) : (SCC p. 682, para 21)

"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;""

(iii) In Rajeev Kourav v. Baisahab & others3, it is held

thus: (paragraphs 5 and 10).

5. A final report was filed on 19-7-2014 on completion of investigation. A petition under Section 482 CrPC was filed for quashing the criminal proceedings. It was contended on behalf of Respondents 1 to 3 before the High Court that the ingredients of Section 306 IPC have not been made out and the proceedings are liable to be quashed. According to Respondents 1 to 3, the FIR and the charge-sheet would only disclose that the entire family of the appellant was being harassed. The respondents cannot be held guilty of offence under Section 306 as there is nothing on record to show that they have incited the deceased to take the extreme step of committing suicide.

10. We do not agree with the submissions made on behalf of Respondents 1 to 3. The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 CrPC [Rajendra Singh v. State of U.P., (2007) 7 SCC 378 : (2007) 3 SCC (Cri) 375] ."

3 (2020) 3 SCC 317

4. On the other hand, the learned counsel for 2nd

respondent contended that the present case would not

come within the purview of consensual act and the

defences of the accused cannot be looked into by this

Court at the initial stage of criminal proceedings except

in exceptional circumstances. He further submitted that

in a petition under Section 482 CrPC, while considering

the quashing of a criminal proceeding, this Court cannot

embark upon an inquiry by appreciating the material,

and as the allegations in the charge sheet make out a

prima facie case for the offences alleged, there are no

grounds to entertain the present quash petition.

5. The learned Special Assistant Public

Prosecutor too concurred with the submissions made by

the learned counsel for 2nd respondent herein.

6. Perused the record.

7. 2nd respondent-defacto complainant is a

Doctor by profession. She joined as a Duty Doctor at

Srikara Hospital, near Secunderabad Railway Station.

A.1 was working as Lab Technician in the said hospital

since January, 2018. As a part of duty, the defacto

complainant used to talk with A.1 in connection with

cardiac cases. A.1 made 2nd respondent-defacto

complainant to believe that he loved her and he informed

everyone in the hospital that they were in love. Three

months later, when 2nd respondent-defacto complainant

came to know about the same, she questioned A.1 about

the same. But, A.1 made her to believe that he loved her

very much and told her that he would marry her. But,

2nd respondent-defacto complainant did not accept it.

Thereafter, it is alleged that A.1 spoiled matches that

were coming for 2nd respondent-defacto complainant's

marriage. It is alleged that again and again, A.1

proposed 2nd respondent-defacto complainant and made

her to believe that he would marry her. Finally, she

believed A.1. In the month of September, 2018, the

other accused, having come to know about his love with

2nd respondent-defacto complainant, met her in the

hospital and enquired with her with regard to marriage.

2nd respondent-defacto complainant stated that she was

not interested to marry at that point of time and she

needed time of 2 years to get married. It is alleged that

A.1 persuaded 2nd respondent-defacto complainant with

his dishonest words and took her to Peddamma Temple

in Madhapur, Hyderabad where they exchanged garlands

on 25.11.2018. Thereafter, A.1 informed her not to

reveal the matter to anybody. A.1 dropped her near her

house and went to his house. Thereafter, they were

talking with each other over phone. One month later,

when parents of 2nd respondent-defacto complainant

came to know about the marriage, they reprimanded her.

She pressurized her parents i.e. L.Ws.2 and 3, to accept

her marriage with A.1 as the marriage of L.W.2 with

L.W.3 happened to be an inter-caste marriage. Finally,

they accepted her marriage with A.1.

It is alleged that A.1 insisted her to have sex with

her, but, she did not agree for the same stating that she

does not want to go physically until he marries her in the

presence of elders according to caste customs and

traditions. Thereafter, she got an offer in Image

Hospitals, Ameerpet, Hyderabad. In October, 2019, she

joined the said hospital as a Duty Doctor. In the month

of December, 2019, A.1 came to Darsi and they used talk

to each other over phone. When she asked A.1 to take

her to Darsi, A.1 stated that he would take her after

Covid-19 subsides. Thereafter, A.1 sent his friend A.5 to

Hyderabad to bring her to Darsi. A.1 took her to a room

at L.Y. Grand Lodge, Kurichedu road, Darsi and kept her

in a room from 1st to 10th February, 2022. Both stayed

together in that room, and at that time, request of A.1 to

have sex was not accepted by her. On 10.02.2022, A.1

took a rented house at ECR Silver Park Venture at

Addanki Road, Darsi and kept her in that house. On

17.03.2022, at about 10.00 PM, A.1 came to her in

drunken state and when she refused to have sex with

him, he forcibly committed sexual intercourse with her.

Thereafter, she became pregnant.

On 01.03.2022, she saw A.1 crying and when

asked, A.1 stated that police would arrest him in a

cheque bounce case and he needs money urgently.

Accordingly, on 03.03.2022, her parents gave an amount

of Rs.11.00 lakhs to A.1 and later her father sent

Rs.2,10,000/- to A.1 through phone pay and also sent

Rs.1.90 lakhs to A.1 from the SB account of her mother.

Thus, A.1 had taken Rs.15.00 lakhs from her by saying

deceitful words. On 17.04.2022, A.1 vacated the rented

house and took a rented house in SSR Apartment, Darsi

by saying that she is his wife. When she asked A.1 to

marry her in the presence of elders, A.1 demanded

Rs.50.00 lakhs in order to get her married in the

presence of elders. When she expressed her inability to

get Rs.50.00 lakhs, it is alleged that A.1 asked her to sell

her house in Palakollu or take loan to comply with his

demand. Having no option, she gave her house papers

to A.1. Later, A.1 carried out loan process in Sri Ram

Finance, Ongole for Rs.50.00 lakhs. After loan was

confirmed, A.1 asked her to sign on the loan papers in

Palakollu Registrar's office. Her parents came to know

about the same and insisted A.1 about marriage.

Thereafter, A.1 ignored their words. It is alleged that

they came to know that A.1 was already married on

22.08.2021. On coming to know about the same, 2nd

respondent-defacto complainant and her parents were

shocked and thereafter the present police report came to

be lodged.

8. It is the contention of the learned counsel for

the petitioners that 2nd respondent-defacto complainant

is a Doctor by profession and she is an intelligent

woman. According to him, A.1 and 2nd respondent-

defacto complainant stayed together for a period of 3

years. A perusal of the entire material on record goes to

show that nowhere it is stated that they stayed together

for a period of 3 years. It only shows to the extent that

they knew each other in the hospital and fell in love in

the year 2019. Merely falling in love would not in any

way show that they are living together. It is only in the

year 2022, A.1 kept in the house of one of his friends

saying that she is his wife. It is pertinent to mention

here that in the said complaint, it is categorically

mentioned that the marriage of A.1 was already

performed with one Divya on 22.08.2021.

9. On a perusal of the material on record goes to

show that it is only on 17.03.2022, A.1 came in a

drunken state and alleged to have committed forcible

sexual intercourse with her. Before the said date, it is

quite apparent that both A.1 and 2nd respondent-defacto

complainant never lived together or subsequent to

17.03.2022, they were living together. The incident is

alleged to have taken place on 17.03.2022. It is also to

be noted that the alleged incident is said to have taken

place after the marriage of A.1 with one Divya. It is

specifically alleged that A.1 herein had forcibly

committed sexual intercourse with 2nd respondent-

defacto complainant only after his marriage with said

Divya in the year 2021. When such is the case, it is

quite evident that A.1 never intended to marry her. By

virtue of the same, one can safely come to the conclusion

that he made false promise with the defacto complainant

to marry her, and on the pretext of the said false

marriage that he would marry her, he had sexual

intercourse with her.

10. On a perusal of the material on record goes to

show that prima facie right from the beginning, A.1 had

dishonest intention and under the guise of promising the

2nd respondent-defacto complainant that he would marry

her, he had forcibly committed sexual intercourse. But,

as on that date, A.1 was already married. In such

circumstances, this Court has absolutely no iota of

doubt in holding that the kind of consent, if any, given

by 2nd respondent-defacto complainant would not come

under the category of consent because she was under

the misconception of fact that the accused would marry

her. There is no dispute with regard to the proposition

of law laid down in the decisions relied upon, by the

learned counsel for the petitioners. In view of the fact

that a prima facie case for the offences alleged is made

out, the decisions relied upon, by the learned counsel for

the petitioners would not render help to the case of the

petitioners.

11. In a petition under Section 482 CrPC, when

prima facie case is made out as against the accused, this

Court is not inclined to interfere at this stage. Truth or

otherwise of the accusations had to be gone into, during

the course of trial. This Court would not be inclined to

conduct a roving inquiry into the disputed questions of

fact in a petition under Section 482 CrPC.

12. Accordingly, the Criminal Petitions are

dismissed. However, considering the facts and

circumstances of the case and the submission of the

learned counsel for the petitioners, presence of

petitioners/A.2 to A.4 is dispensed with, before the trial

Court, except on the dates when the learned Sessions

Judge feels that their presence is necessary.

Miscellaneous Petitions, if any, pending in the

Criminal Petitions, shall stand closed.

_____________________________________ JUSTICE K. SREENIVASA REDDY .10.2023 DRK

THE HON'BLE SRI JUSTICE K. SREENIVASA REDDY

COMMON ORDER IN CRIMINAL PETITION NOs.2329 OF 2023 & 2722 OF 2023

.10.2023

DRK