Telangana High Court

Vunnam Naresh, vs The State Of Andhra Pradesh, on 29 July, 2022

Bench: G.Radha Rani

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

                   CRIMINAL APPEAL No.1 OF 2013

ORDER:

This appeal is preferred by the appellants-Accused Nos.1 to 3

aggrieved by the conviction and sentence inflicted by the Special Sessions

Judge for trial of Cases under Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act cum Additional Sessions Judge, Khammam

for the offences under Sections 417, 313 506 IPC and Section 3 (1) (x) of

the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,

1989 (for short 'SC & ST Act') against A1 and for the offences under

Sections 313 read with 34 and 506 read with 34 IPC and Section 3 (1) (x)

of the SC & ST Act against A2 and A3 vide judgment dated 31.12.2012 in

SC No.6 of 2012.

2. The case of the prosecution in brief was that on 25.12.2010 at

6.00 PM, the de facto complainant came to Khammam III Town Police

Station and lodged a Telugu written report stating that she was a resident of

Vodduramavaram village H/o.Pusugudem, Mulkalapalli Mandal,

Khammam District and she was working as a Teacher in Kinnera Public

School, Dammaigudem Village, Tirumalayapalam Mandal since June,

2009. While she was working in the village, the 1st appellant - A1 used to Dr.GRR,J

follow her stating that he liked her and had sexual intercourse with her for

about 1 ½ years in a house at Saradhi Nagar, Khammam and impregnated

her. When she insisted for marriage, the mother and brother of A1 i.e. A2

and A3 took her to an RMP Doctor by making her believe that they would

get her marriage with A1 after getting abortion and administered some

tablets. When there was heavy bleeding, she was taken to Dr. Swarna

Kumari Mother & Child Hospital, Khammam and got her aborted. After

termination of pregnancy, when she insisted about the marriage, A1 to A3

abused her and threatened to kill her by pouring Acid, if she turned up at

their house and left her in the Bus Stand, Khammam. Basing on the said

report, Khammam III Town Police registered a case vide Crime No.204 of

2010 under Sections 417, 420, 313, 506 IPC and Section 3 (1) (xii) of SC

& ST Act and issued FIR. On receipt of proceedings from the

Superintendent of Police, Khammam, the SDPO Khammam took up

investigation of the case, recorded the statements of witnesses, visited the

scene of offence, drafted the crime detail form in the presence of the

mediators and referred the victim to the Government Hospital for medical

examination and report and sent requisition letters to the MRO of

Thirumalayapalem and Mulakapalli for furnishing the caste particulars of

the accused and the de facto complainant. He effected the arrest of A1 to Dr.GRR,J

A3 on 31.12.2010 and 08.02.2011 and produced them before the Court. He

sent A1 to the Medical Officer, Government Hospital, Khammam and

secured the potency report. After receiving the caste certificate of the

victim and the accused, filed charge sheet against A1 to A3 for the offences

under Sections 417, 420, 313 and 506 IPC and Section 3 (1) (xii) of the SC

& ST Act. The case was taken on file by the III Additional Judicial

Magistrate of First Class, Khammam and committed to the Special

Sessions Judge for trial of cases under SC & ST Act cum Additional

Sessions Judge at Khammam by numbering it as PRC No.4 of 2011.

2.1 The case was taken on file by the Special Court by numbering it

as SC No.6 of 2012 and charges were framed against A1 for the offences

under Sections 417, 313, 506 IPC and 3 (1) (xii) of the SC & ST Act.

Charges were framed against A2 and A3 for the offences under Sections

313 read with 34 IPC, 506 read with 34 IPC and 3 (1) (x) and 3 (1) (xii) of

SC & ST Act. A1 to A3 pleaded not guilty and claimed to be tried.

2.2 To prove its case, the prosecution got examined PWs.1 to 15 and

got marked Exs.P1 to P15. A portion of the 161 Cr.P.C. statement of PW.1

was marked as Ex.D.1 in support of the defence. The accused were

examined under Section 313 Cr.P.C. and they denied the incriminating Dr.GRR,J

material appearing against them in the evidence of the prosecution

witnesses. After hearing the learned Special Public Prosecutor and the

learned defence counsel, the Special Sessions Judge for trial of cases under

SC & ST Act found the accused guilty of the offences and convicted A1 for

the offence under Section 415 read with 417 IPC and sentenced him to

undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/-

in default of payment of fine to undergo simple imprisonment for three

months. He sentenced A1 to undergo rigorous imprisonment for 10 years

and fine of Rs.3,000/- in default to undergo simple imprisonment for six

months for the offence under Section 313 IPC. He sentenced A1 to

undergo rigorous imprisonment for six months and fine of Rs.1,000/- in

default to undergo simple imprisonment for three months for the offence

under Section 3 (1) (x) of the SC and ST Act. He sentenced A2 to undergo

rigorous imprisonment for five years and fine of Rs.1,000/- in default to

undergo simple imprisonment for six months for the offence under Section

313 read with 34 IPC and sentenced her to simple imprisonment for six

months and fine of Rs.1,000/- in default to undergo simple imprisonment

for three months for the offence under Section 3 (1) (x) of the SC & ST

Act. He sentenced A3 to undergo rigorous imprisonment for five years and

fine of Rs.1,000/- in default to undergo simple imprisonment for six Dr.GRR,J

months for the offence under Section 313 read with 34 IPC and further

sentenced to undergo simple imprisonment for six months and fine of

Rs.1,000/- in default to undergo simple imprisonment for three months for

the offence under Section 3 (1) (x) of the SC & ST Act. The trial Court

directed all the sentences to run concurrently against all the accused. He

acquitted the accused for the offences under Section 506 read with 34 IPC

and for the offence under Section 3 (1) (xii) of the SC and ST Act.

3. Aggrieved by the said conviction and sentence inflicted by the

trial Court, the accused preferred this appeal contending that the trial Court

convicted the accused basing on surmises and assumptions. There were

contradictions in the evidence of PW.1. The essential ingredients as to

abusing the complainant in the name of her caste at any public place in

public view were inherently and materially wanting in this case. The trial

Judge went wrong in convicting the appellants for the said unfounded

offence and Section 3 (1) (x) of the SC & ST Act had no applicability to the

facts of the case. The trial Court ought not to have framed the charge or

had taken cognizance against the appellants for the said offence. The

complaint as well as the evidence of PW.1 spoke of her love bond with A1

and her voluntary submission to be in the sexual company of A1. She lived

together with A1 for a long period of one and half year at Khammam in a Dr.GRR,J

rented house away from her native village. Only after her alleged

pregnancy, she alleged to have insisted for marriage, which would nagate

the element of cheating with a promise to marry as required to be

established under Section 415 IPC. The Doctor (PW.4) and the RMP

doctor (PW.6), who had caused mis-carriage or abortion were not shown as

accused in the case. The evidence of PW.4 was suggestive of the fact that

PW.1 was a consenting party for the alleged termination or abortion. The

essential ingredients to constitute the offence under Section 313 read with

312 IPC were inherently and materially wanting in the case. The trial Judge

went wrong in framing charge under Section 313 IPC or in convicting the

1st appellant-A1 in the said unfounded offence. The trial Judge ignored to

look into the evidence of PW.4 which did not speak of the presence of

appellants 2 and 3 at the time when PW.1 alleged to have approached PW.4

in the alleged termination of pregnancy. There was absolutely no evidence

on record to substantiate that the appellants 2 and 3 had caused mis-

carriage more so without the consent of PW.1. The trial Judge went wrong

in convicting the appellants 2 and 3 for the offence under Section 313 read

with 34 IPC. The trial Judge ought to have taken note of all the

inconsistencies and embellishments. There was no proper appreciation of

the facts on record in proper perspective. The conclusion arrived at as to Dr.GRR,J

the guilt of the appellants was haphazard, surmisical and erroneous both on

law and facts. The judgment of the trial Court was not sustainable and

prayed to allow the appeal by setting aside the judgment of conviction and

sentence passed against the appellants in SC No.6 of 2012 dated

31.12.2012 on the file of Special Sessions Judge for trial of SC & ST

Cases, Khammam.

4. Heard Sri C. Sharan Reddy, learned counsel for the appellants and

Sri K. Venakteshwar Rao, learned Public Prosecutor for the respondents.

5. Now the point for consideration is:

Whether the judgment of the trial Court in convicting the accused- appellants for the offences under Sections 417, 313, 506 IPC and Section 3 (1) (x) of the SC and ST (PoA) Act and sentencing them as stated above is sustainable or requires any interference by this Court?

6. As seen from the record, the charge sheet is not filed against the

accused under Section 3 (1) (x) of the SC & ST Act. The charge sheet is

only filed for the offences under Sections 417, 420, 313 and 506 IPC and 3

(1) (xii) of the SC & ST Act. The III Additional Judicial Magistrate of

First Class, Khammam had also not taken cognizance of the offences under

Section 3 (1) (x) of the SC & ST Act. The substance of the allegations

attracting the offence under Section 3 (1) (x) of the SC & ST Act were not

put forth to A1 to A3. The essential ingredients as to the abuse made by Dr.GRR,J

the accused against the complainant in the name of her caste at any public

place and in any public view and the details as to when such abuses were

made, where such incident took place, whether it was in the public view, in

the presence of any witnesses or not was not put forth to the accused while

framing the charge under Section 3 (1) (x) of the SC & ST Act. The charge

would only specify that:

"That you-A1 to A3 on or about the same day, time, place and during the course of same transaction as specified in Charge No.2 supra, not being a member of Scheduled Caste or Scheduled Tribe, being in a position to dominate the will of Banoth Janaki @ Sreeja, D/o. Jaithram who belongs to Lambada Caste (ST) and used that position to exploit her sexually, to which she would not have otherwise agreed and that you thereby committed an offence punishable U/Sec.3 (1) (xii) & 3 (1) (x) of SCs/STs (POA) Act, 1989 and within my cognizance."

7. Thus, the charge would disclose that the ingredients of Section 3

(1) (x) of the SC & ST Act were not put forth to the accused and only the

substance of allegations under Section 3 (1) (xii) of the SC & ST Act were

put forth to the accused and Section 3 (1) (x) appears to have been

incorporated by the side of 3 (1) (xii) without specifying its details. When

the accused persons were heard on the charges on 10.04.2012 also, they

were not informed about framing of any charge under Section 3 (1) (x) of

the SC & ST Act. The suggestions given to the witnesses in the cross-

examinations also would not disclose that the defence had given any

suggestion being aware of the charge under Section 3 (1) (x) of the SC & Dr.GRR,J

ST Act. Hence, without putting the substance of the allegations of the

charge under Section 3 (1) (x) of the SC & ST Act to the accused and the

defence unaware of the said charge while conducting the trial, convicting

the accused for the offence under Section 3 (1) (x) of the SC & ST Act

causes great prejudice to the accused. The examination of the accused

under Section 313 Cr.P.C. also would not disclose about they being

questioned on the evidence of the witnesses with regard to the specific

ingredients of the offence under Section 3 (1) (x) of the SC & ST Act.

8. Hence, convicting the accused for the said offence without

explaining to them about the charge had certainly prejudiced them as they

had not properly prepared in their defence for the said charge. Hence, the

conviction and sentence of the accused for the offence under Section 3 (1)

(x) of the SC & ST Act is considered as illegal and liable to be set aside.

9. With regard to the charge under Section 417 IPC, it deals with

punishment for cheating. The definition of cheating is provided under

Section 415 of IPC as under:

"Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause Dr.GRR,J

damage or harm to that person in body, mind, reputation or property, is said to "cheat".

Explanation.--A dishonest concealment of facts is a deception within the meaning of this section."

10. The ingredients required to constitute an offence of cheating are:

"(1) There should be fraudulent or dishonest inducement of a person by deceiving him,

(2) (a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or

(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived, and

(3) in cases covered by (2)(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property"

11. Section 415 IPC has two parts. While in the first part, the

person must dishonestly or fraudulently induce the complainant to deliver

any property; the second part need not necessarily relate to property. The

facts of the present case would come under the second part of Section 415

IPC. The prosecution has to prove that A1 had intentionally induced the

complainant to do an act which she would not have done if she were not so

deceived and the said act caused damage or harm to her in body, mind,

reputation etc. Dr.GRR,J

12. PW.1 stated in her complaint, marked as Ex.P1, that she worked

as a Teacher in Kinnera Public School, Dammaigudem, Tirumalayapalem

since 2009. A1 followed her by saying that he loved her and was interested

in her and if she was not with him he would be no more and made her to

surrender to him and they both lived together at Saradhi Nagar for a period

of one and half year. When she got pregnant and demanded A1 to marry

her, then his mother i.e. A2 and his brother i.e. A3 went to RMP doctor

Venkateshwarlu and all made her to believe that after she got abortion, they

would perform her marriage with A1 and took her to Dr. Swarna kumari

Hospital at Khammam and got terminated her pregnancy. Later when she

asked them about the marriage, they refused to perform the marriage as she

belonged to lower caste and threatened her with dire consequences if she

came to their house again and that they would pour acid on her and left her

alone at Khammam Bus Stand and went away.

13. In her evidence during trial, PW.1 stated that A1 followed her

stating that he loved her and without her he could not live and that he

would marry her and he used to take her out after school hours. They lived

together in one room at Saradhi Nagar, Khammam and led sexual life. A1

worked as Sales Executive in MTS Mobiles. She got pregnancy. When she

became pregnant, she asked A1 to marry her.

Dr.GRR,J

14. Thus, her evidence would not disclose that she entered into

sexual relationship with A1 believing his words that he would marry her.

Her evidence would disclose that only after she becoming pregnant, she

asked A1 to marry her but not earlier. Even in her complaint, she had not

stated about A1 promising to marry her before they entering into sexual

relationship. In Ex.P.1 she stated that she demanded him to marry her only

after she became pregnant.

15. The prosecution got examined two other witnesses i.e. PWs.5

and 11, who were shown to be elders and circumstantial witnesses and

whom PW.1 approached to conciliate for her marriage with A1.

16. PW.5 stated that he was an MPTC Member and the native place

of PW.1 would fall within his jurisdiction. In the year 2010, PW.1

approached him and asked him to arrange for marriage with A1 as they

were lovers. He along with LW.7 (PW.11) asked A1 whether he was going

to marry PW.1. A1 stated that he would marry after securing a job. PW5

stated that he also informed to the parents of PW.1, then they reprimanded

PW.1 for falling in love with A1. When he asked A1 and PW.1 about the

marriage they both stated that they were living at Khammam. After five or

six months thereafter, he asked PW.1 and A1 to marry. A1 requested time.

Dr.GRR,J

In the month of November or December 2010, PW.1 approached him and

stated that A1 refused to marry her. Then he advised PW.1 to give a police

complaint. The brother of A1 also stated that A1 would not marry PW.1

since she belonged to a Scheduled Tribe.

In his cross examination, PW.5 stated that:

"I was thinking that police will do counselling between A1 and PW.1. Six months prior to giving complaint, PW.1 approached me and informed about her love affair. It is true that PW.1 asked us to convince her parents for marriage. I tried to convince the parents of PW.1. By the time of giving complaint PW.1 was studying B.Ed."

17. PW.11 stated in his chief examination that:

"I am Mandal organizer for CPI party for Mulakalapally mandal. In the month of February and March in the year 2010 I went to Vodduramavaram village along with PW-5. PW-1 told me that she had acquaintance with A-1 and that she loved him and that they are intending to marry and she asked us to convince her parents. Then we assured to PW-1 that we will convince her parents for marriage. In the month of August, 2010, I along with PW 1 went to Collector office, Khammam on personal work. We called PW-1, she came along with A-1. A-1 told us that he will marry PW-1 after he got job. In the month of October, 2010 again we came to Khammam on some work and went to Bus stand then PW-1 and all the accused came to us. A-2 informed us that she will perform marriage of A-1 with PW-1 after crop is harvested. Thereafter (10) days PW-1 telephoned to us and informed us that Accused No.2 and 3 got pregnancy of PW-1 terminated on assurance of performing marriage. In the month of December, 2010 we went to Dammaigudem to make enquiry. By then a news item was published that PW-1 was holding Mouna Poratam against the accused and that Women Associations are supporting. Thereafter we went to Tirumalayapalem Police. When we offered complaint police asked for negotiations. When we enquired with the accused A-2 stated that they will not perform marriage of PW-1 with A-1 Dr.GRR,J

since she belongs to Lambadi and lower caste and they will loose their prestige and further threatened that PW-1 will be killed by pouring acid."

In the cross-examination this witness stated that:

"I informed to mother of PW.1 about love affair between PW.1 and A2, the mother stated to me that her husband will not agree for marriage and that he may kill PW.1. The father came to know about affair when Dharna is being held and somebody telephoned to them."

18. Thus, the evidence of PWs.5 and 11 would disclose that PW.1

and A1 approached them to convince the parents of PW.1 but not the

parents of A1 and both these witnesses had informed the mother of PW.1

about love affair between PW.1 and A1 but the mother of PW.1 refused to

perform the marriage stating that her husband would not agree for the

marriage and he might even kill PW.1. Thus, the parents of PW.1 were

against to the marriage of PW.1 with A1. As per the evidence of these

witnesses, they could not convince the parents of PW.1 for the marriage of

PW.1 with A1. The complainant (PW.1) knowing fully well that her

parents were against her marriage with A1, continued to live in a room with

A1 and led sexual life with him. She is an educated woman, who did her

B.Ed. and working as a Teacher in a private school. Knowing fully well

that she and A1 belonged to separate castes or communities and knowing

fully well that her parents are also against to her marriage with A1, she Dr.GRR,J

voluntarily cohabitated with him and continued her live in relationship with

A1. Hence, it cannot be assumed that believing the assurance of A1 that he

would marry her, she entered into sexual relationship with A1 and A1

cheated her and committed the offence under Section 415 IPC. Hence, this

Court is of the view that the prosecution failed to prove the guilt of A1 for

the offence under Section 415 IPC punishable under Section 417 IPC.

19. The observations of the trial Court that:

"Srija would not have consented for sexual intercourse unless there is a promise from accused No.1 that he would marry her. It is further established by accused No.2 and 3 that if she undergoes for abortion, then they will perform her marriage. In the entire cross examination, there is nothing suggested that Srija had got enemity with accused No.1 to 3. It is not said that Srija was leading a vagabond life and of loose character. A woman will not take risk of keeping their reputation at stake to file a false complaint. There is strong circumstantial evidence against accused No.1 that he had cohabited, got impregnated her, got aborted her pregnancy and finally he refused to marry her",

These observations are based upon surmises and conjectures. The accused

can be held guilty basing on the evidence but not on assumptions. The

court could not assume that the complainant would not have consented for

the sexual intercourse unless there was promise from A1, without any

evidence in the said regard. Hence, it is considered fit to set aside the

conviction and sentence of A1 for the offence under Section 417 IPC.

Dr.GRR,J

20. Section 313 IPC is pertaining to causing mis-carriage without

woman's consent. It reads as follows:

"313. Causing miscarriage without woman's consent.--

Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

21. Causing mis-carriage is defined under Section 312 IPC. It reads

as under:

"312. Causing miscarriage.--Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Explanation.--A woman who causes herself to miscarry, is within the meaning of this section."

22. Thus, this section aims at punishing the persons who causes mis-

carriage of a woman not caused in good faith for the purpose of saving the

life of the woman and Section 313 IPC is aimed at punishing the persons

causing miscarriage particularly without the consent of the woman.

23. PW.1 had not stated in her evidence that the mis-carriage was

caused without her consent. She stated that A1 asked her to go for abortion

that thereafter he would marry her and A2 and A3 went to Venkateshwar Dr.GRR,J

Rao, RMP doctor (PW.6) and he administered some tablets. When PW.1

got bleeding and severe stomach pain, PW.6 referred her to Dr. Swarna

Kumari Hospital for abortion. A1 represented to doctor that he married her

and asked for termination of pregnancy. Dr. Swarna Kumari performed

abortion at Thalli Pillala Hospital, Rythu Bazar, Khammam.

24. The RMP doctor - Venkateswar Rao was examined as PW.6.

He stated that he never administered pills for termination of pregnancy of

PW.1 and never referred PW.1 to the hospital of PW.4. He was declared as

hostile by the prosecution and he denied the suggestions given to him by

the prosecutor in his further examination.

25. Dr. Swarna Kumari was examined as PW.4. She stated that she

was running a Nursing Home under the name and style of Raja Kumari

Mother and Child Hospital, NST Road, Khammam since 2003. On

03.10.2010 at 10.30 AM, PW.1 came to her hospital along with one

attendant with a complaint of pain in abdomen and bleeding from vagina.

Prior to that, she was using medicines for termination of pregnancy outside.

After examination, she found that it was an incomplete abortion, checked

and removed the remaining products of pregnancy and terminated it. In the

signed. The relevant entry containing the signatures of PW.1 and Naresh

was marked as Ex.P4. On a perusal of Ex.P4, the complainant signed at the

relevant entry at the designated place of the consent of patient for

abortion/investigation/ termination in the case sheet. In the case sheet, the

complainant was referred as wife of Naresh and her occupation was shown

as student and her age as 21 years, the date of admission as 03.10.2010 at

10.30 AM and date of discharge as 05.10.2010 at 12.00 PM and the

Diagnosis as incomplete abortion and the Result as for Medical termination

of pregnancy and Date and Nature of operation as D & C on 03.10.2010 at

11.00 AM. Thus, the complainant herself signed on the consent form and

she had not stated in her evidence that the pregnancy was terminated

without her consent.

26. Learned counsel for the appellants relied upon the judgment of

the Hon'ble Apex Court in Prabhu v. The State of Tamil Nadu1, wherein

on a similar facts, it was held that:

"(8) Insofar as the conviction of the appellant under Section 313 I.P.C. is concerned, the evidence of Dr. Valli (PW-8) assumes importance. In her evidence Dr. Valli (PW-8) has stated that on 21st October, 2004 at 12.00 noon PW-1 came to the hospital with bleeding and lower abdominal pain along with one whose name is stated to be registered as "Prabhu", as her husband. Dr. Valli (PW-8) further stated that in order to save the life of PW-1 after obtaining her consent Dr. Valli (PW-8) has medically terminated the pregnancy of PW-1. Though PW-1 has

2018 (4) RCR (Criminal) 455 Dr.GRR,J

stated that the abortion was done compulsorily at the instance of the appellant, the evidence of Dr. Valli (PW-8) does not support the version of PW-1.

(9) The essential ingredient of Section 313 I.P.C. is that "Causing miscarriage without woman's consent". But as per the evidence of Dr. Valli (PW-8) consent of PW-1 was taken and, therefore, it cannot be said that the ingredients of Section 313 I.P.C. has been established by the prosecution."

27. In the present case also PW.1 - complainant is an educated

woman, a major and had given her consent for terminating her pregnancy.

The evidence of PW.4 and the document marked as Ex.P.4 also would

support that the termination of pregnancy was conducted as per the consent

of PW.1. Hence, the conviction of A1 to A3 for the offence under Section

313 read with Section 34 IPC by the trial Court is considered as illegal and

not in accordance with law and hence, the same is liable to be set aside. As

such, the point is answered in favour of the appellants holding that the trial

Court erred in convicting A1 for the offence under Section 417 IPC; A2

and A3 for the offence under Sections 313 read with 34 IPC and all the

accused under Section 3 (1) (x) of the Scheduled Castes and Scheduled

Tribes (Prevention of Atrocities) Act, 1989 and sentencing them to