Telangana High Court
Manda Babu vs The State Of A.P. on 30 April, 2024
THE HON'BLE SRI JUSTICE E.V.VENUGOPAL
CRIMINAL REVISION CASE No.889 OF 2011
ORDER :
This Criminal Revision Case is preferred by the
petitioner/accused under Sections 397 and 401 of Criminal
Procedure Code (for short 'Cr.P.C.') aggrieved by the judgement dated
07.04.2011 in Criminal Appeal No.23 of 2010 on the file of the
learned IV Additional District and Sessions Judge (FTC) at
Mahabubnagar wherein and whereby the findings of learned
Assistant Sessions Judge at Wanaparthy dated 01.02.2010 vide
judgment in SC No.135 of 2009 convicting and sentencing him to
suffer rigorous imprisonment for a period of one year and to pay a
fine of Rs.1,000/-, in default to undergo rigorous imprisonment for
three months for the offence under Section 448 IPC and further to
undergo rigorous imprisonment for seven years and to pay a fine of
Rs.2,000/- in default to undergo rigorous imprisonment for six
months for the offence under Section 376 IPC directing both the
sentences to run concurrently were confirmed.
2. Heard Sri Bonkuri Sridhar, learned counsel for the
petitioner and Sri Vizarath Ali, learned Assistant Public Prosecutor,
representing learned Public Prosecutor for the State/respondent.
3. SC No.135 of 2009, on the file of the learned Assistant
Sessions Judge, Wanaparthy was registered on the strength of the
complaint lodged by PW1 alleging that the accused/petitioner herein
on 24.07.2008 at about 11.00 p.m. while she was sleeping, entered
into her house, removed the electrical fuse and forcibly committed
rape and when her father/PW2 came, the accused fled away from the
scene leaving his shirt, lungi, mobile phone and a pair of cheppal at
the spot. Further, after informing the same to the elders and after
the deliberations held to console the accused to marry PW1 failed,
Ex.P1 complaint was lodged.
4. The accused denied the said allegations mainly
contending that the character of PW1 is not good, she gave consent
for sex, both PW1 and accused were in love for some time, no efforts
were made by the investigating officer to state that MOs.1 to 4,
allegedly left by the accused at the scene of offence, belong to the
accused and that the accused was falsely implicated in the present
case.
5. The trial Court, upon considering the entire evidence in
the form of PWs.1 to 12 and Exs.P1 to P15 and also MOs.1 to 4
found the accused guilty, convicted and sentenced him as stated
supra.
6. Aggrieved by the said findings, the petitioner preferred
Criminal Appeal No.23 of 2010 before the learned IV Additional
District and Sessions Judge (FTC), Mahabubnagar mainly
contending that the trial Court failed to appreciate the law, evidence
on record and also the circumstances of the case in a right
perspective and hence, the findings of the trial Court are liable to be
set aside. The learned District Judge of the appellate Court
dismissed the said criminal appeal.
7. Aggrieved by the findings of both the Courts below, the
petitioner herein filed the present criminal revision case mainly
contending that both the Courts below failed to appreciate the
consent of PW1 and her intimacy with PW6 and found the
accused/petitioner guilty against the principles laid by several
Courts in a catena of decisions.
8. Learned counsel for the petitioner relied upon the
decision rendered by the Hon'ble Supreme Court in the case between
Nirmal Premkumar and another Vs.State represented by
Inspector of Police 1 contending that the evidence must be highly
qualitative, consistent, credible and trustworthy but in the case on
hand, the prosecution witnesses are not consistent and appears to
be untrustworthy and hence, basing on such incredible evidence, the
petitioner cannot be found guilty. It is further contended by learned
counsel for the petitioner basing on the above decision that though
Crl.A.No.1098 of 2024 (Hon'ble Supreme Court)
the act of sexual harassment of a girl would figure quite high in the
list of offences of grave nature and has far-reaching consequences, at
the same time, the said accusation against the accused would
remain as an indelible mark marring his entire future.
9. On the other hand, learned Assistant Public Prosecutor
vehemently opposed the present criminal revision case mainly
contending that in spite of resistance of PW1, the petitioner against
her will, by illegally trespassing into her house during night hours,
while PW1 and her father/PW2 were sleeping, committed rape
inducing her to believe that he will marry her on the next day and
after committing rape he resiled from his promise and in such
circumstances, both the Courts below have rightly found him guilty
for the offences punishable under Sections 448 and 376 of IPC and
that there is no necessity to interfere with the well considered
findings of both the Courts below.
10. This Court perused the entire material available on
record including the judgements of both the Courts below. PW1 is
the victim and PW2 is her father and PW3 is their neighbour. Their
evidence shows that the petitioner and PW1, who are close relatives,
fell in love with each other and when the petitioner insisted PW1 for
fulfilling his sexual desire she resisted the same stating that after
their marriage with the consent of elders only she will participate in
such act with him. It is also their evidence that on the date of
incident, when PW1 was sleeping in her room and PW2 in another
room, during night hours, the accused by taking advantage of
unbolted door, entered into the room of PW1 by removing the
electricity fuse and removed her dress and when she resisted
reiterating her disinterestedness for such act prior to the marriage,
he assured her to marry on the very next day and after committing
such act, he resiled from his assurance and hence, PW1 started
crying and shouting and upon hearing the same, PW2 came to the
room and in the light of torch of his cell phone identified the accused
and when he questioned his presence in his daughter's room and
tried to catch him, the accused fled away by leaving his shirt, lungi,
cell phone and a pair of chappal. Upon hearing the sounds, PW3
rushed to the scene and observed the accused. As per the case of
prosecution, PWs.4 and 5 are the village elders and in their presence
a meeting was conducted to mediate and pacify the issue and
convince the accused asking him to marry PW1 but he refused to
marry her stating that the character of PW1 was not good and offered
to pay Rs.40,000/- to her. However, they turned hostile and did not
support the prosecution case. PW6, a jeep driver and allegedly had
affair with PW1, did not support the prosecution case. PW7 acted as
witness for recovery of material objects from the residence of PW1.
PW8 doctor, examined the accused and issued potency certificate
under Ex.P7. PW9 doctor, examined PW1, collected and sent swabs
to FSL, Hyderabad for medical examination and received Exs.P9 to
11 confirming that PW1 was subjected for sexual intercourse. PW9
admitted that there were no external injuries on the body of PW1 or
semen and spermatozoa on the swab. She stated that since PW1
was referred to the hospital after more than 48 hours of the incident,
the possibility of absence of semen and spermatozoa cannot be ruled
out. PW10 registered the case. PW11 visited scene of offence and
recorded the statements of witnesses and village elders. PW12
investigated the case and laid charge-sheet.
11. The prosecution by examining PWs.1 to 3, 8 and 9 could
able to establish that by taking advantage of the conditions and
circumstances, the petitioner/accused trespassed into the house of
PW1 and committed rape and when PW2 i.e. the father of PW1 came,
he fled away by leaving material objects. Though the learned counsel
for the petitioner tried to deny the identity of the accused in view of
darkness due to lack of electricity power supply, PWs.1 and 2 have
categorically identified the petitioner as the person who committed
such act. Admittedly, the petitioner is an acquainted person to both
PWs.1 and 2 and hence, their identifying him with the help of cell
phone torch light cannot be disbelieved. Evidence of PWs.1 and 2 in
this regard gained support from the evidence of PW3. Further,
though the learned counsel for the petitioner tried to canvass that
PW1 also had love affair with PW6, he failed to prove the same by
adducing convincing evidence. Further, the petitioner did not
adduce any oral or documentary evidence to substantiate his case.
12. In such factual scenario, the question here to be decided
is whether PW1 expressed her consent to the petitioner for
participating in such act or not. It is the categorical evidence of PW1
that from the inception she was resisting the pressure exerted by the
petitioner to participate in sexual intercourse contending that she
was not interested in such things before getting married and she will
accede to his desire only after getting married the petitioner with the
consent and blessings of elders. It is also the evidence of PW1 that
she had love affair with the petitioner and that on the very same day
of incident, in the morning also, she refused to accept the desire of
the petitioner. Further, it is also the evidence of PW1 that during the
course of such act, when the petitioner tried to remove her dress, she
resisted the same reiterating her strong opinion and rejection. It is
also her evidence that in furtherance of assurance of the petitioner
that he would marry her on the next day, she stopped her efforts to
resist him. She further stated that after committing such act, the
petitioner resiled from his promise and hence, she made cries and
hues.
13. Learned Assistant Public Prosecutor appearing for the
State vehemently contended that the petitioner committed misdeed
and that when the meeting was conducted in the presence of PWs.4
to 6 and the village elders to convince the petitioner to agree for
marrying PW1, he refused to marry her making allegations regarding
her character and offered to pay Rs.40,000/-. He further contended
that the petitioner induced PW1 assuring that he would marry her
and later committed breach of promise made in good faith and that if
the petitioner did not give such assurance PW1 would not have
agreed for such an act and hence the said consent is not a valid
consent under Section 90 of IPC.
14. The record shows that after the incident when PW2 went
to the house of the petitioner, the petitioner was not found and
hence, he locked the house of the petitioner asking his parents to
inform his arrival and hence, his parents lodged a complaint in this
regard. Basing on such circumstance, learned counsel for the
petitioner contended that as a counter blast to the said case, the
present case is foisted. However, there is no explanation offered by
learned counsel for the petitioner for PW2's locking the house of the
petitioner. In-fact, the said fact strengthens the case of prosecution
that due to the act of petitioner, out of anger, PW2 went to the house
of the petitioner along with others and upon his absence, he locked
the door and that since his son committed mistake, parents of the
petitioner did not resist the same and later lodged a complaint.
15. In Deepak Gulati Vs. State of Haryana 2, Hon'ble
Supreme Court gave dimension of the word 'consent' by
distinguishing 'Rape' and 'consensual sex' and observed as under:
"Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by
deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear distinction
between rape and consensual sex and in a case like
this, the court must very carefully examine whether
the accused had actually wanted to marry the victim,
or had mala fide motives, and had made a false
promise to this effect only to satisfy his lust, as the
latter falls within the ambit of cheating or deception.
There is a distinction between the mere breach of a
promise, and not fulfilling a false promise. Thus, the
court must examine whether there was made, at an
early stage, a false promise of marriage by the accused;
and whether the consent involved was given after
wholly understanding the nature and consequences of
sexual indulgence. There may be a case where the
prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused, and
not solely on account of misrepresentation made to her
5 (2013) 7 SCC 675
by the accused, or where an accused on account of
circumstances which he could not have foreseen, or
which were beyond his control, was unable to marry
her, despite having every intention to do so. Such
cases must be treated differently. An accused can be
convicted for rape only if the court reaches a
conclusion that the intention of the accused was mala
fide, and that he had clandestine motives."
16. In case of Anurag Soni Vs. State of Chhattisgarh 3, the
Hon'ble Apex Court held that the consent of the victim is based on
misconception, such consent is immaterial as it is not a voluntary
consent. If it is established that from the inception, the consent by
the victim is a result of a false promise to marry, there will be no
consent, and in such a case, the offence of rape will be made out.
17. In a case between Ganesan Vs. State 4 the Hon'ble
Supreme Court held that the sole testimony of the victim, if found
reliable and trustworthy, requires no corroboration and may be
sufficient to invite conviction of the accused.
18. In a case between Krishan Kumar Mallik Vs. State of
Haryana 5 the Hon'ble Supreme Court held that though the victim's
solitary evidence in matters related to sexual offences is generally
(2019) 13 SCC 1
(2020) 10 SCC 573
(2011) 7 SCC 130
deemed sufficient to hold an accused guilty, the conviction cannot be
sustained if the prosecutrix's testimony is found unreliable and
insufficient due to identified flaws and lacunae.
19. When the facts of the case on hand are tested with the
touchstone of the law laid down in the above decisions and the
evidence of PW1, it can be safely held that the petitioner with a
malafide intention, tried his best to convince PW1 to fulfil his lust
and when she refused, he trespassed into her house and committed
rape. To this extent, the evidence of PW1 gained corroboration from
the evidence of PW.2. In such factual scenario, finding the petitioner
guilty for the offences punishable under Sections 448 and 376 of IPC
by both the Courts below is concerned, this Court finds that both the
Courts have rightly found the petitioner guilty and there is nothing
either on record or on the grounds urged by the petitioner through
this criminal revision case warranting interference of this Court with
the above said well considered findings. Further, the petitioner did
not adduce any evidence to substantiate his case. The said
circumstance gives rise to a presumption under Section 114 of
Evidence Act that since there is no evidence to be let-in in support of
the case of the petitioner, he did not adduce the evidence on his
behalf. In that view of the matter, the petitioner is not entitled for
the relief as sought for in this criminal revision case. However, since
the offence is of the year 2008 which is prior to enactment of
Criminal Law (Amendment) Act, 2013 and since then he is roaming
around the Courts by suffering mental agony and hardship, this
Court is inclined to take a lenient view insofar as the period of
sentence of imprisonment imposed against the petitioner.
20. Accordingly, the petitioner shall suffer rigorous
imprisonment for a period of one year on all counts and in addition
to the fine amount already paid, the petitioner is directed to pay a
fine of Rs.1,10,000/- (Rupees one lakh and ten thousand only) for all
counts. Out of the said amount, an amount of Rs.1,00,000/-
(Rupees one lakh only) shall be given to the victim and the remaining
amount of Rs.10,000/- (Rupees ten thousand only) shall be paid to
the State. In default, the petitioner shall suffer the sentence awarded
vide the judgments impugned. The petitioner is entitled for the
benefit under Section 428 of Cr.P.C. With the above modification in
respect of the sentence of imprisonment and fine amount, this
Criminal Revision Case is dismissed.
Miscellaneous applications, if any pending, shall also stand
dismissed.
____________________
E.V.VENUGOPAL, J
Dated :30-04-2024
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