Andhra Pradesh High Court - Amravati
Palaparthi Rajiv Babu vs The State Of Andhra Pradesh on 2 July, 2024
APHC010129342024
IN THE HIGH COURT OF ANDHRA
PRADESH
[3365]
AT AMARAVATI
(Special Original Jurisdiction)
TUESDAY, THE SECOND DAY OF JULY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE JUSTICE DR V R K KRUPA SAGAR
CRIMINAL REVISION CASE NO: 258/2024
Between:
Palaparthi Rajiv Babu and Others ...PETITIONER(S)
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner(S):
1. SARASCHANDRA BABU JAKKAMSETTY
Counsel for the Respondent(S):
1. PUBLIC PROSECUTOR (AP)
The Court made the following:
2
Dr. VRKS, J
Crl.R.C.No.258 of 2024
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL REVISION CASE No.258 of 2024
ORDER:
In this Criminal Revision Case filed by the accused under
Sections 397 and 401 of Code of Criminal Procedure (Cr.P.C.)
the petitioners impugn the order dated 27.02.2024 of learned V
Additional District and Sessions Judge-cum-Special Court for trial
of offences against women, West Godavari, Eluru. The said
order was passed in Crl.M.P.No.242 of 2023 in S.C.No.41 of
2023. By the impugned order, the learned Additional Sessions
Judge refused to discharge the accused for the offences alleged
against them under Sections 376(2)(n), 417 and 506 I.P.C.
Therefore, the present revision.
2. Sri Jakkamsetti Saraschandra Babu, the learned for
revision petitioners and Sri Dheera Kanishk, the learned Special
Assistant Public Prosecutor for respondent No.1/State submitted
arguments. None appeared for respondent No.2/victim-cum-de
facto complainant.
Dr. VRKS, J
3. Respondent No.2 is a woman and completed her M.sc.,
B.Ed. and through APPSC she got employment and has been
working as Assistant Social Welfare Officer. Thereafter she got
married and that marriage ran into troubles and in the year 2021
she obtained divorce. While she was working at Narsapuram,
petitioner No.1/A.1 was working as Welfare Education Assistant
assisting respondent No.2 who is her superior. Over a period,
there was a fair acquaintance between them. While so, it is
alleged that he proposed to marry her. She allegedly told him
that she was older to him in age and was a divorcee and she
could not accept for marriage. However, he allegedly persisted
and told her he would marry her and give her a new lease of life.
Over a period, his words convinced her and made her to believe
that he would marry her. It was in those circumstances, it is
alleged that he promised to marry and live with her and out of that
though it is against her will and consent, she submitted herself
and there developed physical sexual relationship between them.
It went on for certain years and thereafter it had come to surface
that he was looking for marrying another girl. She questioned him
and he refused to marry her stating that she was a divorcee and
he could not marry her. It is stated that petitioner No.1/A.1
Dr. VRKS, J
intimidated her stating that his father/petitioner No.2/A.2 holds
political clout and he himself carried rumors to the Joint Director
who was superior to and he was also telling bad things about her
and spreading it among colleagues. It is stated that a panchayat
of elders was held on 10.05.2022 in which all the three
petitioners/A.1 to A.3 appeared and they abused her in filthy
language and challenged her to give complaint to police or Court
and they would see that she would not get justice. It was in those
circumstances on 03.06.2022 respondent No.2 lodged her written
information with Narsapuram Town Police Station and the same
was registered as Crime No.102 of 2022. Investigation
commenced and was completed and listing 19 witnesses as
LWs.1 to 19 a charge sheet was laid before learned Magistrate
which case was thereafter committed to the learned Court of
Sessions. While the matter was coming up for charge hearing, all
the three accused filed Crl.M.P.No.242 of 2023 in S.C.No.41 of
2023, under Section 227 of Cr.P.C., seeking their discharge.
After due hearing, by the impugned order the learned Additional
Sessions Judge dismissed the application. It is in that context
and aggrieved by the said order, the present revision is filed.
Dr. VRKS, J
4. Learned counsel for revision petitioners submit that the
allegations in the charge sheet and the supporting material do not
make out a case for the offences punishable under Sections
376(2)(n), 417 and 506 I.P.C. and the medical evidence does not
corroborate the prosecution version. Learned counsel submits
that A.1 and the de facto complainant are adults and the
allegations in the charge sheet indicate consensual sex and
therefore, it is not possible to say that there is the offence of rape.
Learned counsel submits that mere breach of promise to marry is
not an offence and that the facts on record do not make out a
case. Learned counsel further argued that A.2 and A.3 are
brothers and A.2 is father of A.1. That the entire material on
record does not prima facie indicate any case against A.2 and A.3
to say that there was criminal intimidation on their part.
5. On the aspect of rape, the learned counsel cited two
rulings. Vikas Kumar v. State of Telangana1 - That was a case
of a man and woman commencing their relationship as friends
which finally led to physical relationship and when the relationship
broke that resulted in criminal prosecution for the offences under
2023 (1) ALD (Crl.) 467 (TS)
Dr. VRKS, J
Sections 376(2)(n), 417 and 493 I.P.C. was initiated. Seeking to
quash those proceedings, the accused filed a petition on the
premise that the matter was compromised. The victim woman
filed an affidavit wherein she mentioned that the allegations she
had earlier mentioned were out of misunderstanding and wrong
advice and stated that the matter was compromised. It was in
those circumstances the quash petition was allowed and the
proceedings were quashed. In the above context of facts, the
Hon'ble Telangana High Court mentioned that the material placed
before it did not indicate any deceit and sexual relationship out of
such deceit.
6. The other ruling cited is Kothapally Krishna v. State of
Telangana2. That is also a case of prayer for quashing criminal
prosecution for the offence under Section 376(2)(n) I.P.C. and
other offences. In that case the facts presented before the said
Court showed that between the man and the woman the alliance
was fixed, and an engagement function was held and it was
thereafter the proposed marriage fizzled out. At paragraph No.10
it was recorded that the physical relationship between them was
2023 (1) ALD (Crl.) 1038 (TS)
Dr. VRKS, J
not consequent of any false promise or any misconception of fact.
It was for those reasons the Court opined that the facts did not
attract Section 376(2)(n) I.P.C.
7. As against it, the learned Special Assistant Public
Prosecutor submits that the case diary in the present case does
indicate manipulation of consent of the victim woman by A.1 as
the statements of the witnesses made to police would indicate
that A.1 made false promises of marriage and gained
manipulated consent of the victim woman and keeping her under
that impression he was able to secure the physical obedience of
the woman and such facts do attract the offence of rape and the
rulings cited are clearly distinguishable on facts. The facts and
circumstances were properly considered by the learned trial Court
and it appropriately exercised its jurisdiction and therefore the
order refusing to discharge the accused has to be upheld.
8. The case is pending before learned Additional Sessions
Judge. It is exclusively Sessions triable case. The offences
alleged are chargeable.
Dr. VRKS, J
9. The point that falls for consideration in this revision is:
"Even though there is no sufficient ground to
proceed whether the learned trial Court
erroneously refused to discharge the accused?"
POINT:
10. Section 227 Cr.P.C. provides the principles for discharge
and Section 228 Cr.P.C. provides the principles for framing
charge. Section 227 Cr.P.C. indicates that if the Sessions Judge
considers that there is no sufficient ground for proceeding against
the accused, he shall discharge them and record his reasons for
so doing. Section 228 Cr.P.C. postulates that if the Sessions
Judge is of the opinion that there is a ground for presuming that
the accused has committed an offence, then he shall frame the
charge. If the charging Sessions Court indulged in any
procedural illegality or it misconducted itself and committed acts
of impropriety leading to miscarriage of justice, the power of
revision vested with this Court under Sections 397 and 401
Cr.P.C. shall come to the aid of the aggrieved.
Dr. VRKS, J
11. A man is said to commit rape if the sexual act is committed
against will or without the consent of the woman (vide Section
375 I.P.C.). If the said rape is repeatedly committed on the same
woman, larger punishment is provided under Section 376(2)(n)
I.P.C. Per se sexual act between the consenting adults is no
offence. While if it is not out of free consent, it is only then it
attracts the penal provisions. Section 375 I.P.C. Explanation 2
reads as below:
"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:
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.
Exception 1:-- A medical procedure or intervention
shall not constitute rape.
Exception 2:-- Sexual intercourse or sexual acts by a
man with his own wife, the wife not being under fifteen years
of age, is not rape."
12. Section 90 I.P.C. reads as below:
"90. Consent known to be given under fear or
misconception:--
Dr. VRKS, J
A consent is not such a consent as it 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
Consent of insane person:-- if the consent is given
by a person who, from unsoundness of mind, or intoxication,
is unable to understand the nature and consequence of that
to which he gives his consent; or
Consent of child:-- unless the contrary appears
from the context, if the consent is given by a person who is
under twelve years of age."
This Section 90 I.P.C. makes it clear that the first part of it sets
out the factors from the viewpoint of the victim and the later part
of this section sets out the factors from the viewpoint of the
accused.
13. The facts to be considered and the application of mind that
is required for a Sessions Court while considering the material for
the purpose of finding out whether there is sufficient ground for
charging or not is at a phase where he only has to see whether a
case for a trial has been made out by the prosecution. For this
purpose, he has power to sift and weigh the material only to
Dr. VRKS, J
satisfy himself whether a prima facie case is made out so as to
furnish sufficient ground for proceeding further or not. He is not
permitted to see whether the trial would finally culminate in
acquittal or conviction. If a promise to marry held out by the
accused is a mere hoax, the consent ostensibly given by the
victim will be of no avail to the accused to exculpate him from the
ambit of Section 375 I.P.C. The stage of analyzing factual
materials can be undertaken only at the trial when the witnesses
are produced. At the stage of considering the material for the
purpose of framing charge or discharge, it is only the allegations
that are made that have to be considered properly.
14. In the light of the above principles, now the facts on record
have to be seen. With reference to A.1/petitioner No.1, the
charge sheet and the statements of victim and other witnesses do
show persistence of A.1 that he would marry the victim and finally
convincing her that he was really desirous of marrying her and
thereafter there developed sexual relationship between them and
when the time for the marriage came he refused to marry her.
Whether these pieces of statements made by the witnesses are
true or false is a matter for consideration at the trial. However, if
Dr. VRKS, J
these statements remain unrebutted they do indicate commission
of offence as it can be said that it was a manipulative consent.
Under the false promise of marriage, the sexual act took place.
Reference in this regard can be made to Yedla Srinivasa Rao v.
State of A.P.3 The learned trial Court rightly appreciated the law
and rightly appreciated the facts and at page No.7 of the
impugned order it stated that in view of the clear statements of
the victim and other witnesses she found a case to charge him
and the truth or otherwise of those statements could be found
only on a full-fledged trial. Therefore, with reference to A.1, the
order of the learned trial Court is unexceptionable as it exercised
its power vested with it and it did not commit any illegality or
impropriety.
15. Coming to A.2 and A.3/petitioner Nos.2 and 3, according to
prosecution, they criminally intimidated the victim woman. I have
gone through the entire record. Concerning A.2 and A.3 the
instance of criminal intimidation occurred on 10.05.2022 in the
presence of certain elders. As per the record A.2 and A.3 abused
the victim woman in filthy language and challenged her to give
2007 (1) ALT (Crl.) 61 (SC)
Dr. VRKS, J
complaints to police or Court and they would see that she would
not get justice. LW.8-Sri B.Anil Kumar and LW.9-Sri D.Swamulu
are stated to be those elders. Their statements do show that A.2
and A.3 firmly told that it was not possible for A.1 to marry the
victim woman as she was a divorcee. It is further stated by them
that A.2 and A.3 abused the victim woman and the advice of
elders was not heeded to by A.2 and A.3. They have also said
that on hearing the words of A.2 and A.3 the victim woman was
disappointed and left the place stating that she believed that
justice would be rendered to her but she could not get justice
there. This is the only material available on record. Statements
of these witnesses do not indicate A.2 and A.3 causing panic in
the mind of the victim. These statements do not indicate the
words that were uttered by A.2 and A.3 against the victim woman.
No other physical acts are attributed against A.2 and A.3. The
material indicates dissatisfaction or disappointment experienced
by the victim as the meeting of elders did not bring relief to her.
Even remotely the statements do not suggest anything that could
be called as criminal intimidation resorted to by them against the
victim woman. Case diary shows that it was A.1 who was
carrying bad propaganda about the victim woman damaging her
Dr. VRKS, J
reputation and character which facts fall for consideration under
Section 503 I.P.C. where criminal intimidation is defined and
Section 506 I.P.C. where punishment for it is provided. All those
acts that were attributed against A.1 in this regard are not seen
from the record as against A.2 and A.3. In such circumstances, it
is difficult to see any offence being made out as against A.2 and
A.3 under Section 506 I.P.C. At paragraph No.16 of its judgment
learned trial Court cryptically stated that the statement of
witnesses and that of the de facto complainant clearly attract the
offence under Section 506 I.P.C. At paragraph No.15 it stated
that the material showed that they threatened the de facto
complainant with dire consequences. In the opinion of this Court
that part of the order is bereft of necessary reflection on facts and
devoid of the application of mind that is expected of. In the light
of the view that is stated by this Court, there is no material to
charge A.2 and A.3. The impugned order of the trial Court cannot
be upheld to the extent that is contrary to this.
16. In the result, this Criminal Revision Case is partly allowed.
The impugned order dated 27.02.2024 of learned V Additional
District and Sessions Judge-cum-Special Court for trial of
Dr. VRKS, J
offences against women, West Godavari, Eluru so far as
petitioner No.1/A.1 is upheld. So far as petitioner Nos.2 and
3/A.2 and A.3, the impugned order is set aside. Consequently,
A.2 and A.3 stand discharged from S.C.No.41 of 2023 and their
bail bonds shall stand cancelled. Learned Additional Sessions
Court shall forthwith proceed further and dispose of S.C.No.41 of
2023 in accordance with law.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
________________________
Dr. V.R.K.KRUPA SAGAR, J
Date: 02.07.2024
Ivd
Dr. VRKS, J
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL REVISION CASE No.258 of 2024
Date: 02.07.2024
Ivd
