SURAPATHI LAXMAN RAO Vs. STATE OF A P

JUDGEMENT

(1.) This Criminal Revision Case is directed against the judgment dated 19-10-2001 passed in Criminal Appeal No. 13 of 2001 on the file of Sessions Judge, Mahila Court, Visakhapatnam, whereby the learned Sessions Judge confirmed the conviction and sentence of the accused for the offence under Section 417 of IPC passed in C.CNo. 250 of 1999 on the file of III Metropolitan Magistrate, Visakhapatnam.

(2.) The petitioner herein is the accused in C.C.No. 250 of 1999. The prosecution case in brief is as follows: P.W. 1 K. Nagamani is daughter of P.W. 2. K. Saroja and younger sister of P.W. 3 Kanaka Rama. P.W. 1 was aged about 18 years in the year 1998. She was residing with her mother P.W. 2. Accused Surapathi Laxmana Rao is an employee in Lipi Enterprises, Isukatota, Visakhapatnam. He resided in the neighbourhood and used to frequently visit the house of P.W. 1. During one of his visits he informed her that he was in love with her and she also reciprocated and they started loving each other. They went to cinemas and other places. She started cohabiting with the accused and this continued for nearly three years. It is alleged that she gained pregnancy and got the pregnancy aborted in the year 1995-96. The accused promised to marry her in the year 1998. Parents of the accused demanded Rs. 50,000/-. The demand was conceded by her parents. When the parents of the accused arranged his marriage with another girl whose parents offered more dowry, she approached the village elders. P.W. 4 B. Ellappa and P.W. 5 B. Shanmukha Rao, caste elders called both the parties and enquired the matter. The accused stated to have told them that he would marry P.W. 1 if her parents give Rs. 50,000.00. Later, the accused refused to marry P.W. 1 and beat her and her mother and hence P.W. 1 went to III Town (Law and Order) Police Station and presented Ex.P-1 report before the SHO. P.W. 7 R. Sanjeeva Rao received Ex.P-1 report and registered a case in Cr.No. 130/98 under Sections 417, 493,420,323,506 and Sees. 3 and 4 of D.P. Act and issued Ex.P-3 FIR. He examined P.W. 1 to 5 and recorded their statements. He sent P.W. 1 to hospital for medical examination. L.W. 11J. Rajasekhar, Civil Assistant Surgeon examined her medically and issued certificate opining that it is difficult to give opinion at present whether the victim had abortion or not in March, 1996. P.W. 7 arrested the accused on 21-7-98 and sent him for medical examination. P.W. 6 Dr. D.S. Patnaik examined the accused and opined that there was no evidence to suggest that the accused is impotent or incapable of carrying sexual intercourse. Ex.P-2 is the medical certificate issued by him. After completing the investigation P.W. 7 laid charge-sheet in the court of III Metropolitan Magistrate, Visakhapatnam. The learned Magistrate took the charge-sheet on file as C.C. 250/99. On appearance of the accused and on furnishing copies of documents to him; the learned Magistrate framed the charges. Firstly, for the offence under Section 417 of IPC, secondly for the offence under Section 323 of IPC, thirdly for the offence under Section 506 IPC and lastly for the offence under Section 4 of Dowry Prohibition Act. The learned Magistrate read over and explained the charges to the accused for which the accused pleaded not guilty and claimed to be tried. In order to substantiate the case against the accused, the prosecution examined P.Ws. 1 to 7 and marked Exs.P-1 to P-4. On behalf of the accused, neither ocular nor documentary evidence was adduced. On considering the evidence and on hearing the prosecution and the accused, the learned Magistrate found the accused guilty for the offence under Section 417 IPC while finding him not guilty for the other offences and convicted him accordingly and sentenced him to suffer SI for a period of six months and to pay a fine of Rs. 1,000/-; in default to suffer SI for three months. Feeling aggrieved by the conviction and sentence for the offence under Sec.417 of IPC, the accused has filed Crl.A.No. 13 of 2001 on the file of Sessions Judge, Mahila Court, Visakhapatnam. On re-appraisal of the evidence the learned Sessions Judge confirmed the conviction of the accused for the offence under Section 417 of IPC by judgment dated 19-10-2001. Assailing the order of conviction and sentence, the accused has filed this Criminal Revision Case.

(3.) Learned counsel for the petitioner/ accused contends that the failure to keep the promise of marriage on future uncertain date does not amount to misconception of fact at the inception of the act itself and therefore the conviction of the petitioner/accused for the offence under Section 417 IPC is not sustainable. It is also contended by him that if a full grown up girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. It is further contended by him that non-examination of the Doctor who treated P.W. 1 to speak of her termination of pregnancy is fatal to the prosecution and therefore the conviction and sentence of the petitioner/accused for the offence under Section 417 of IPC is liable to be set aside. He placed reliance on the decision of Supreme Court in Uday v. State of Karnataka and the decisions of Calcutta High Court in Jayanti Rani v. State of W.B. and Hari Majhi v. State. The learned Public Prosecutor submits that the evidence of P.W. 1 is crystal clear that the petitioner/accused induced her to consent for sexual intercourse by way of promise to marry her and therefore the conviction and sentence of the accused for the offence under Section 417 of IPC is not liable to be interfered in this revision.