Jannu Shyamsunder vs The State Of Telangana
2023 Latest Caselaw 4083 Tel

        THE HONOURABLE SRI JUSTICE K.SURENDER

             CRIMINAL APPEAL No. 274 OF 2021

JUDGMENT:

This Criminal Appeal is filed by the Appellant/Accused

aggrieved by the conviction recorded by the Special Judge for Fast

Tracking of Cases Relating to Atrocities Against Women-cum-IX

Additional Sessions Judge, Warangal, in S.C.No.14 of 2020

dt.02.07.2021, convicting the accused for the offences punishable

under Sections 417 and 420 of the Indian penal Code and

sentencing to undergo rigorous imprisonment for a period of one

year for the charge under Section 417 of the IPC and to undergo

Rigorous Imprisonment for a period of two years and to pay a fine

of Rs.5,000/- for the charge under Section 420 of IPC.

2. Heard learned counsel for the appellant/accused and

learned Additional Public Prosecutor for the respondent - State.

Perused the record.

3. Briefly, the case of the victim-PW1 is that she was

acquainted with the appellant since the year 2010. Initially, they

were conversing over phone and fell in love later. The appellant

was taking her home stating that he wanted to marry her. Saying

so, he raped her several times. PW1-victim waited for 9 years to

marry, but, the parents of the appellant were looking for suitable

alliance. The marriage of the appellant was fixed with one Kalyani.

On 02.05.2019, PW1 went to the house of appellant and forced

him to marry her. The next day on 03.05.2019, the accused took

her in a car to Kotilingala temple and tied 'thali' around her neck

and he took selfies and dropped her in the house. Later, the

marriage of the appellant with the said Kalyani did not take place.

PW1-victim waited for the accused/appellant to join her. However,

since the appellant did not join her, she lodged a complaint on

18.05.2019.

4. On the basis of the said complaint, the Police filed charge

sheet for the offences under Sections 417, 420 and 376(2)(n) of the

Indian Penal Code.

5. The appellant pleaded not guilty for the said offences. The

learned Sessions Judge having examined the witnesses PWs.1 to

14 and marking Exs.P1 to P15 found that the appellant was not

guilty for the offence under Section 376 (2) (n) of the Indian Penal

Code. However, the petitioner was guilty of the offences under

Sections 417 and 420 of the Indian Penal Code.

6. Learned Counsel appearing for the appellant would submit

that the learned Sessions Judge having found that she was not

subjected to rape, the question of convicting the appellant for the

offence of cheating does not arise. Even according to the evidence

of PW1, there was a relation between the appellant and victim over

a period of ten years. Since the appellant refused to marry PW1, a

false complaint was made.

7. He relied on the Judgment of the Honourable Supreme

Court in Vijayan v. State of Kerala 1 wherein the Honourable

Supreme Court held that the delay of seven months in filing the

complaint would be unsafe to find the accused guilty. He also

relied on the Judgment of Honourable Supreme Court in Tilak

Raj v. State of Himachal Pradesh 2 wherein the Honourable

Supreme Court held that when there was no fraudulent or

dishonest inducement of the prosecutrix by the appellant, the

offence of cheating will not be made out.

8. On the other hand learned Additional Public Prosecutor

would submit that the appellant had promised to marry her and

also took her to a temple where they got married. It amounts to an

offence of cheating.

(2008) 14 Supreme Court Cases 763

AIR 2016 Supreme Court 406

9. Admittedly, the appellant and PW1 had physical relation

over a period of ten years. It is not alleged in the statement that

the appellant had promised to marry her and thereby induced to

have sexual relation with her. It cannot be said when the relation

is for a period of ten years that the victim was induced and was

under false impression of being married to the appellant. As

already stated, PW1 did not state that on the assurance of being

married, they continued physical relation for ten years.

10. It is alleged by PW1 that the appellant took her to a temple

and tied sacred thread. The said act of tying sacred thread would

not amount to an act of cheating in the present circumstances.

Admittedly, after having physical relation for nearly ten years, it is

alleged that the appellant had taken her to a temple. The main

ingredient of cheating is that such intention should have been

entertained from the inception. There is no allegation that there

was any kind of intention that was entertained by the appellant

from the inception of the relation. The other ingredients of

deceiving are also absent in the present case. Merely refusing to

marry after ten years would not amount to an offence of cheating

when both appellant and PW1 were in a consensual sexual

relation over a period of ten years.

11. Accordingly, Criminal Appeal is allowed and the conviction

recorded by recorded by the Special Judge for Fast Tracking of

Cases Relating to Atrocities against Women-cum-IX Additional

Sessions Judge, Warangal, in S.C.No.14 of 2020 dt.02.07.2021,

under Sections 417 & 420 of the Indian Penal Code, is hereby set

aside. Since the appellant/accused is on bail, his bail bonds shall

stand discharged.

Miscellaneous applications pending, if any, shall stand

closed.

_________________ K.SURENDER, J Date: 17.11.2023 tk