The State Of Ap., Rep By Pp vs Adalath Abhiram
2021 Latest Caselaw 2932 Tel

          HONOURABLE Dr. JUSTICE C.SUMALATHA

                CRIMINAL APPEAL No.479 of 2012
JUDGMENT:

1. Challenging the validity and the legality of the judgment dated

30.8.2010 rendered by the Court of the Assistant Sessions Judge,

Khammam, in S.C.No.200 of 2010, the appellant approached this

Court by way of appeal.

2. In the grounds of appeal, it is urged that the judgment of the

trial Court is contrary to law, weight of evidence and probabilities of

the case; that the learned judge of the trial Court ought to have seen

that the ingredients to constitute the offences punishable under

Sections 417 and 376 I.P.C. were made out by the prosecution; that

the learned judge ought to have seen that P.W-1 clearly revealed that

the respondent-accused obtained her consent by misconception of fact

and had sexual intercourse; that the learned judge ought to have

considered the evidence of the prosecution witnesses in correct

perspective and thus, the acquittal of the respondent-accused is

unsustainable and therefore, the appeal has to be allowed.

3. Reported to take it as heard by the learned Additional Public

Prosecutor and also by the learned counsel appearing for the

respondent-accused.

4. Now the points that arise for determination are:

(1) Whether the appellant emerged successful

before the trial Court in establishing the guilt of the Dr.CSL , J

respondent-accused beyond all reasonable doubt for

the offence punishable under Section 417 I.P.C.

(2) Whether the appellant emerged successful

before the trial Court in establishing the guilt of the

respondent-accused beyond all reasonable doubt for

the offence punishable under Section 376 I.P.C.

(3) Whether there exists any infirmity in the

judgment of the trial Court either in appreciating

the facts of the case or in applying the established

principles of law to the said facts, as contended by

the appellant herein, which in turn requires

interference of this Court exercising the appellate

jurisdiction.

5. Point Nos.1 & 2:

The facts of the case, as projected in the charge sheet, are that

P.W-1 and the respondent-accused were pursuing their M.B.A. in the

same college and in the month of December, 2007, the respondent-

accused approached P.W-1 and expressed that he is in love with her

and promised to marry her, but P.W-1 refused and the respondent-

accused persistently followed P.W-1 and on believing the repetitive

promises of the respondent-accused, P.W-1 moved closely with him

and basing on the promise that he would marry her and due to force,

P.W-1 had sexual intercourse with the respondent-accused and

thereafter, they both used to cohabit and subsequently, the respondent-

accused denied to marry P.W-1.

Dr.CSL , J

6. Record discloses that putting into scrutiny the evidence of

P.Ws.1 to 12 and Exs.P-1 to P-8, the learned judge of the trial Court

came to the conclusion that the appellant failed to establish the guilt

of the respondent-accused beyond all reasonable doubt and therefore,

acquitted the respondent-accused of the charges laid. The said

acquittal is under challenge in this appeal.

7. Now, it has to be seen whether the prosecution emerged

successful before the trial Court, as contended in the grounds of

appeal, in proving the guilt of the respondent-accused beyond all

reasonable doubt.

8. The evidence of the alleged victim, who was examined as

P.W-1, is that she studied M.B.A. (Finance) in Mohammadiya P.G.

College in the year 2007 and the respondent-accused was her

classmate and in the month of December, 2007, while she was alone in

the classroom, the respondent-accused told her that he wants to marry

her, but she did not accept and after one month, they both fell in love

and used to meet each other, and on one day, the respondent

approached her sister's house and while both of them were talking,

her sister left the house and basing on his promise that he would marry

her, they both enjoyed sexually and since then, they used to have sex

and the respondent informed her that he would marry her at Sanghi

temple, Hyderabad on 12.8.2009 but did not turn up and she informed

the matter to her mother and later, they preferred Ex.P-1-complaint to

Police.

Dr.CSL , J

9. P.W-1 during the course of cross-examination stated that she

has not complained to the Principal or to her colleagues about the

proposal of the respondent-accused and her refusal. She also stated

that she never reported to her parents or to the College body that the

respondent-accused was harassing her to fulfil his proposal.

10. The evidence of P.W-2 is that P.W-1 is her daughter and that,

on one day in the year 2009, the respondent-accused approached her

and informed her that he would marry her daughter, but she

admonished him and in spite of that, the respondent informed her that

he would marry her daughter and she admonished her daughter also

and subsequently, the respondent-accused did not answer the calls of

her daughter. She further deposed that the mother of the respondent-

accused informed that the respondent and P.W-1 belong to different

religions and therefore, the proposal was not accepted and they drove

out the respondent-accused from their house along with certificates.

11. The evidence of P.W-3 is that the respondent and P.W-1 used to

visit the house of P.W-1's sister in the year 2009 and on one day,

P.W-1 and the respondent-accused went to the house of P.W-1's sister

and as she was not present at the house, they came to her house and

informed that they both are in love with each other and later, she went

out and after some time, she pushed the door and saw both of them

lying like husband and wife and she admonished them and sent them

away. Same is the evidence of P.W-4.

12. The prosecution examined P.Ws.5 and 6 to establish the close

association between P.W-1 and the respondent-accused. The Dr.CSL , J

prosecution also produced the evidence of P.W-10-Civil Assistant

Surgeon and Exs.P-4 to P-6 to establish that P.W-1 was not a virgin by

the date of her medical examination.

13. To establish that the respondent-accused has committed the

offence punishable under Section 417 I.P.C., it is for the appellant-

prosecution to prove that the respondent-accused by deceiving P.W-1

had fraudulently or dishonestly induced her to participate in the sexual

intercourse and thereby, cheated her. But as rightly observed by the

trial Court, the sexual intercourse between P.W-1 and the respondent-

accused was repeated and it was not a single isolated act. If P.W-1 had

participated in the sexual intercourse once, basing on the false promise

of the respondent-accused, it can be acted upon. But, in this case, as

per the own version of P.W-1, they participated in the sexual

intercourse at different times and at different places. As rightly

observed by the trial Court, it cannot be held that there was repetitive

promise for each act of sexual intercourse and basing on the same

repetitive promise, P.W-1 participated in the sexual intercourse with

the respondent-accused. P.W-1's evidence is that they both enjoyed

sexually and that, on and off they used to have sex. Having regard to

these statements, it cannot be held that basing on the inducement of

the respondent-accused, P.W-1 participated in the sexual intercourse.

14. Further, the case cannot also be brought under the purview of

Section 375 I.P.C., as there is clear evidence of consensual sexual

relationship and as there is nothing on record to show that the

respondent-accused made advancement either against P.W-1's will or Dr.CSL , J

without her consent or that her consent was obtained either by putting

in fear of death or hurt or anything of that sort which falls within the

purview of definition of 'rape' as laid down under Section 375 I.P.C.

and therefore, it cannot be held that the appellant has proved the guilt

of the respondent-accused beyond all reasonable doubt before the trial

Court for the offences levelled against him.

15. Point No.3:

When the judgment of the trial Court is perused, it is found that

the learned judge of the trial Court has dealt with each and every

aspect of the case, gave clear findings on each charge and the findings

given are in accordance with the provisions laid down under the Indian

Penal Code. Therefore, this Court finds that there are no grounds

whatsoever to interfere with the said well-reasoned judgment of the

trial Court.

16. Resultantly, the Criminal Appeal stands dismissed confirming

the judgment dated 30.8.2010 rendered by the Court of the Assistant

Sessions Judge, Khammam, in S.C.No.200 of 2010.

_________________________ Dr. JUSTICE C.SUMALATHA 22.10.2021 dr