Medchal Kammari Suresh, ... vs The State Of A.P., Rep. By P.P., ...
2022 Latest Caselaw 5913 Tel

              HON'BLE SRI JUSTICE K.SURENDER

               CRIMINAL APPEAL No.238 OF 2010

JUDGMENT:

This Criminal Appeal is filed by the Appellant/Accused

aggrieved by the conviction recorded by the Assistant Sessions

Judge at Siddipet, in S.C.No.274 of 2008 dt.08.02.2008, convicting

the accused for the offences punishable under Section 376 of the

Indian Penal Code and sentence of Rigorous Imprisonment of ten

years and a fine of Rs.5,000/-.

2. Heard and perused the record.

3. Briefly, the case of the prosecution is that PW1 was

acquainted with the appellant since one year prior to the complaint.

On several occasions, PW1 had sexual intercourse with the

appellant. She consented for the reason of promise made by the

appellant that he would marry her. However, on refusal to marry,

the present complaint was filed.

4. On the basis of the complaint, the Police investigated and filed

charge sheet for the offence under Section 376 and 420 of the

Indian Penal Code.

5. The learned Sessions Judge having examined PWs.1 to PW10

and marked Exs.P1 to P11, found the appellant guilty of the offense

under Section 376 of the Indian Penal Code.

6. Learned Counsel appearing for the appellant would submit

that even according to PW1, the relation was consensual, as such,

the offence under Section 376 of the Indian Penal code is not

attracted and prayed to reverse the conviction.

7. On the other hand learned Additional Public Prosecutor Sri

S.Sudershan, would submit that on a false promise of marrying

PW1, the appellant/accused had physical relation with PW1.

8. From the evidence on record, it is apparent that PW1 who was

a major had physical relation over a period of one year with the

appellant. During the course of her examination in the Court, she

had narrated six instances, when she accompanied the appellant.

During the course of her cross-examination, she specifically stated

that she on her own consent went along with the appellant and had

sexual intercourse.

9. To attract an offence of rape punishable under Section 376 of

the Indian Penal Code, it would not suffice to mention that the

victim consented to sexual intercourse on mis-conception of fact,

but also, the mis-conception should be proximate to the occurrence.

It cannot be said that when the victim and the appellant had

physical relation over a period of one year and PW1-victim admitting

that it was consensual, such consensual act will not amount to an

offence of rape. At the most, such false promise made and having

physical relation over a period of one year may attract the offence

under Section 420 of the Indian Penal Code. However, the learned

Sessions Judge has acquitted the appellant for the said offence.

10. The State has not preferred any appeal against acquittal of the

appellant under Section 420 of the IPC.

11. For the above mentioned reasons, since prosecution has failed

to prove on facts that the appellant had committed rape on the

victim-PW1, the conviction under Section 376 of the Indian Penal

code, is set aside.

12. Accordingly, the Criminal Appeal is allowed. Since the

appellant is on bail, his bail bonds shall stand cancelled.

Miscellaneous applications, if any, pending shall stand

dismissed.

__________________ K.SURENDER, J Dt.:16.11.2022 tk

THE HON'BLE SRI JUSTICE K.SURENDER

CRIMINAL APPEAL No. 238 OF 2010

Dt. 16.11.2022

tk