BADI CHINNA RAO Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) This Criminal Revision Case is directed against the judgment dated 7- 11-2001 passed in Cri C,. No. 28 of 2001 on the file of Sessions Judge, Mahila Court, Visakhapatnam, whereby the learned Sessions Judge confirmed the conviction of the accused for the offence under Section 417, IPC passed in C.C. No. 820 of 2000 on the file of III Metropolitan Magistrate, Visakhapatnam, while reducing the sentence of imprisonment from six months to one month.

(2.) The petitioner herein is the accused in C.C. 820 of 2000. The prosecution case in brief is as follows : P.W. 1 P. Maseenamma is daughter of P.W. 2 P. Bhulokamma and L.W. 8 Peerla Apparao. The petitioner/accused used to visit the house of junior paternal uncle of P.W. 1 and thereby acquaintance developed between P.W. 1 and the petitioner/accused. The petitioner/accused went around P.W. 1 saying that he loved her and he wanted to marry her. He also told her that he could not live without her company. He started inducing P.W. 1 with promise to marry her. On one day finding P.W. 1 alone in the house, the petitioner/accused pressured her to come out and took her to the house of P. Bapanna which was then vacant and made her to succumb to his promise of marriage and thereby had sexual intercourse with her. Whenever she found alone in the house the petitioner/accused used to take the opportunity of calling her out and taking to the house of P. Bapanna which was then vacant and had sexual intercourse with her. It so happened for four or five times. On realizing that she gained pregnancy because of her association with the petitioner/accused, she informed the same to the petitioner/ accused and there upon the petitioner/accused advised her not to disclose to any one. He further told her that his parents were not willing to receive her as their daughter in law and so he advised her to get rid of the pregnancy. He took her to the hospital for abortion and his efforts to get the pregnancy of P.W. 1 aborted proved futile. He even gave some pills to P.W. 1 so as to get her pregnancy aborted. But all the efforts made by him to get the pregnancy of P.W. 1 aborted proved to be futile. When P.W. 1 insisted the petitioner/accused to marry her, the petitioner/accused demanded a dowry of Rs. 20.000.00 and thereafter refused to marry her. A panchayat was held in the presence of P.W. 6 A. Nookaraju, P.W. 7 K. Dhanaraju, P.W. 8 P. Nookaraju and P.W. 9 K. Appanna. It appears the petitioner/accused admitted his intimacy with P.W. 1 before them, but he refused to marry her. Therefore, P.W. 1 present Ex. P-l report before the SHO, Gajuwaka (L & O) Police Station on 25-2- 1996. P.W. 13 P. Rarajorasad, SI of police received Ex. P-1 report and registered a case in Cr. No. 102/96 and issued Ex. P-5 FIR. He examined P.Ws. 1 to 9 and recorded their statements. He sent P.W. 1 to K. G. Hospital for medical examination. P.W. 12 Dr. T. Radha examined P.W. 1 medically on 26-4- 96 and issued Ex. P-4 certificate opining that P.W. 1 is pregnant and the period of gestation is about 14 weeks. The petitioner/accused was also sent to hospital for medical examination with regard to his potency. P.W. 11 Dr. D. S. Patnaik examined the petitioner/accused medically and issued Ex. P3 certificate opining that there is no evidence to suggest his impotency. After usual investigation L.W. 14 I. Chitti Babu, S.I. of Police, laid the charge-sheet in the Court in III Additional Metropolitan Magistrate, Visakhapatnam. The learned Magistrate took the charge-sheet on the file as C.C. 820 of 2000. On appearance of the petitioner/ accused and on furnishing copies of necessary documents to him, the learned Magistrate examined him under Section 239, Cr. P.C. and framed a charge under Section 420 of IPC. The petitioner/accused pleaded not guilty and claimed to be tried. In order to substantiate the case against the petitioner/ accused, the prosecution examined P.Ws. 1 to 13 and marked Exs. P-l to P-5. On be half of the petitioner/accused, D.Ws. 1 and 2 were examined and Ex. D-1 and D-2 were marked. D.W. 1 K. Maseenu and D.W. 2 V. Tatarao spoke of their convening panchayat on the request of P.W. 1 and of their sending her to police station in view of both groups entering into altercation. On considering the evidence and on hearing the prosecution and the petitioner/accused, the learned Magistrate found the petitioner/accused guilty for the offence under Section 417 of IPC and convicted him accordingly and sentenced him to suffer RI for six months and to pay a fine of Rs. 500.00 and in default to suffer S.I. for one month. Feeling aggrieved by the judgment of conviction and sentence, the petitioner/accused filed Crl. A. No. 28 of 2001 on the file of Sessions Judge, Mahila Court, Visakhapatnam. On considering the material on record and on hearing the counsel for the petitioner/accused and the Additional Public Prosecutor on behalf of the State, the learned Sessions Judge confirmed the conviction of the petitioner/accused for the offence under Section 417 of IPC while reducing the sentence of imprisonment from six months to one month. Assailing the order passed in Crl. A. No. 28 of 2001, the petitioner/accused has preferred this Criminal Revision Case.

(3.) Learned counsel for the petitioner/ accused contends that 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 of 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 the 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 P.Ws. 7 to 9 are not the elders of the village and therefore their presence at the alleged panchayat is highly improbable. He placed reliance on the decision of the Supreme Court in Uday v. State of Karnataka, (2003) 1 ALT (Cri) 498 : (2003 Cri LJ 1539) the decisions of Calcutta High Court in Jayanti Rani v. State of W-B., 1984 Cri LJ 1535 and Hari Majhi v. State, 1990 Cri LJ 650. 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 a promise to marry her and her evidence is amply corroborated by the evidence of P.Ws. 1 to 5 and therefore the conviction and sentence of the petitioner/accused for the offence under Section 417 of IPC is not liable to be interfered in this revision.