Telangana High Court
K.Vijay Kumar , Vijay vs The State Of A.P. on 20 February, 2024
THE HONOURABLE SRI JUSTICE K.SURENDER
CRIMINAL REVISION CASE No.730 OF 2009
ORDER:
1. This Criminal Revision Case is filed under Sections 397
and 401 of the Code of Criminal Procedure, 1973 (for short
'Cr.P.C.'), against the Order dated 27.04.2009 in Crl.A.No.30 of
2007, on the file of the Additional Metropolitan Sessions Judge,
Cyberabad, N.T.R. Nagar, Hyderabad, confirming the judgment
dated 11.01.2007 in C.C.No.166 of 2005, on the file of the X
Metropolitan Magistrate, Cyberabad at Malkajgiri.
2. The de facto complainant/PW.1 lodged a complaint stating
that she was married to one Surya Prakash in the year 1998 and
due to his harassment, she left him and since then, she is
residing at her parents' house. While so, she got acquainted
with the petitioner who was staying opposite to their house and
when the parents of PW.1 left for work, petitioner used to go to
her house regularly and made false promise that he would marry
her and had sexual intercourse with her. When the neighbors
questioned, he informed that he would marry her. Subsequently,
PW.1 became pregnant and when she asked him to marry her,
the petitioner stated that he was not responsible for the
pregnancy and will not marry her. Aggrieved by the same, PW.1
lodged a complaint before the police and after completion of
investigation, the police filed charge sheet against the petitioner
for the offence punishable under Section 493 of IPC.
3. The trial Court having examined de facto
complainant/victim as P.W.1 and five other circumstantial
witnesses as PWs.2 to 6 found that the prosecution has failed to
prove the guilt of the petitioner that he deceitfully made a belief
in the mind of PW.1/victim that she is legally married to him
and had sexual intercourse with him in that belief. Therefore,
ingredients under Section 493 of IPC are not made out.
However, the trial Court having found that the petitioner has
made a false promise to P.W.1 that he will marry her and had
sexual intercourse and thereby, cheated her by refusing to marry
her when she became pregnant, has convicted the petitioner
under Section 420 of IPC. Against the said judgment, the
petitioner filed an appeal before the lower Appellate Court and
the learned Sessions Judge concurred with the findings of the
trial Court and confirmed the conviction and sentence.
4. The learned counsel appearing for the revision petitioner
would submit that both the Courts below have grossly erred in
recording the conviction under Section 420 of IPC, when the
charge under Section 420 of IPC was not framed. Having found
that the petitioner was not guilty for the charge framed under
Section 493 of IPC, the trial Court and the appellate Court ought
not to have held that the petitioner was guilty for the offence
punishable under Section 420 of IPC. In fact, the relation
between the petitioner and victim was consensual in nature.
Further, he relied on the judgments of the Hon'ble Apex Court
and the High Court of Andhra Pradesh in Uday Vs. State of
Karnataka 1, K.Ashok Kumar Reddy Vs. State of Andhra
pradesh 2, Akella Sushmita Vardhani Vs. Mohammed Mirza
Hassan 3 and Sammangi Naga bhushanam Vs. State of
Andhra pradesh 4.
5. On the other hand, learned Additional Public Prosecutor
argued that the trial Court as well as the lower appellate Court
has not committed any error in recording the conviction against
2003 (1) ALT (Crl.) 326 (SC)
2008 (1) ALD (Crl.) 995 (A.P.)
2011 (2) ALD (Crl.) 14 (A.P.)
2009 (1) ALD (Crl.) 155 (A.P.)
the petitioner for cheating. It is the specific case of PW.1 that
petitioner had sexual intercourse with her on the promise of
marriage and when she became pregnant, he refused to marry
her stating that he is not responsible for her pregnancy, for
which reason, complaint was filed.
6. A charge was framed under Section 493 of IPC. It is
specifically stated that the petitioner had sexual intercourse with
PW.1 on the promise of marriage. Even though the trial Court
found that DNA test was not performed, the evidence of
PW.1/victim and PWs.2 to 6/circumstantial witnesses is
sufficient to infer that the petitioner has impregnated the
petitioner on the false promise of marriage and had committed
the offence of cheating under Section 420 of I.P.C.
7. Under Section 464 of Cr.P.C, the charge is of no
consequence, unless it causes prejudice to the accused. In the
present case, though the charge was framed under Section 493
of IPC, the contents of the charge is that the petitioner had in
fact stated that he was going to marry her and had sexual
intercourse with her. The said content of charge found basis to
record conviction under Section 420 of IPC. I do not find force
with the argument of the learned counsel for the petitioner that
since charge was framed under Section 420 of IPC, the petitioner
was prejudiced during trial.
8. To attract an offence of cheating, it is necessary that the
intention to cheat should be present from the inception of the
relationship. PW.1 was a married woman and she stated that
she lived with her husband for some time and later she left him
and thereafter, stayed in her parents' house. According to her, in
the absence of her parents, the petitioner used to visit her and
had physical relationship with her. In the said circumstances, it
cannot be said that PW.1 was under the misconception that the
petitioner would marry her and for which reason, she has
consented for sexual intercourse. When the earlier marriage was
subsisting and there was no divorce or any legal process was
undertaken for dissolving the marriage, the question of petitioner
marrying PW.1 does not arise. Only for the reason of her
pregnancy, both the trial Court as well as lower appellate Court
committed an error in concluding that the petitioner had cheated
her. In the present facts of the case, none of the ingredients of
Section 420 of IPC are made out. Therefore, the conviction
recorded under Section 420 of IPC against the petitioner is not
appropriate and the same is hereby set aside.
9. Accordingly, the Criminal Revision Case is allowed.
As a sequel, miscellaneous applications, if any, pending in
this appeal shall stand closed.
_________________
K.SURENDER, J
Date: 20.02.2024
dgr
