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2021 Supreme(AP) 277
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
JOYMALYA BAGCHI, J.
Kagitha Narendra – Appellant
Versus
The State of A.P. – Respondent
Criminal Appeal No. 444 of 2019
Decided On : 28-01-2021
Advocate Appeared:
For the Appellant : Rambabu Koppineedi and T.D. Phani Kumar
Point of Law: Accused had dishonest intention from inception as he had agreed to marry another girl while he cohabited with the victim
Headnote:
Indian Penal Code 1860 – Section 376(1),376(2) ,417,506,34 - Code of Criminal Procedure 1973 - section 437 A , 313 – Indian Evidence Act 1872 – Section 114 A – Punishment for rape - Punishment for cheating - Punishment for criminal intimidation – Common Intention - When bail may be taken in case of non- bail able offence - Power to examine the accused - Court may presume existence of certain facts- Prosecution case with regard to cohabitation on the score of extortion and blackmail has not been proved. MOs. 1 and 2 do not show any entry with regard to the appellant and the victim staying in the hotel on that day. PW.4-Manager of the hotel also did not state that the victim had come to the hotel in an unconscious state. Mobile Phone of the appellant, seized and verified during investigation, does not show any obscene pictures of the victim-PW. 1. –
Finding of the Court : Conduct of the victim in keeping silent for almost two years from the incident with regard blackmail also renders such allegation highly improbable. The evidence on record show the parents of the victim-PW. 1 were unaware of such incident. They were opposed to the free mixing between the parties as would appear from the evidence. As a result, PW. 1 left her residence after leaving behind a letter. Letter has not been produced in Court. On the other hand, Statement given by PW. 3 to the investigating officer divulges the contents of the letter, wherein no inducement on the part of the appellant is alleged. On the other hand, it appears PW. 1 on her own volition left the house as her parents were not supporting her mixing with the appellant. Promise to marry would not constitute rape when the prosecution case of dishonest intention or extortion at the inception of the relationship has not proved. Hence, the appellant is entitled to an order of acquittal - Appeal against the Judgment - Appellant had been charged for the offences punishable under Sections 376(1), 417 and 506 read with 34 I.P.C. and for aggravated rape under sub-section (2) of Section 376 IPC. Hence, the aforesaid presumption does not apply to the facts of this case - No doubt, reference has been made to Section 114A of the Indian Evidence Act in the aforesaid decision –Court hold’s the prosecution has failed to prove its case beyond reasonable doubt and the appellant is liable to be acquitted for the charges leveled against him -
Result: Appeal Allowed
JUDGMENT :
Joymalya Bagchi, J.
(Taken up through video conferencing)
1. This Appeal is directed against the judgment dated 03.06.2019 passed by V Additional District and Sessions Judge-cum-Special Judge for Trial of Offences against Women, Guntur, in Sessions Case No. 211 of 2017, wherein the appellant/A. 1 was found guilty for the offences punishable under Sections 376(1) and 417 of Indian Penal Code (I.P.C.) and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 1,000/-, in default, to undergo simple imprisonment for a period of two months for the offence punishable under Section 376(1) I.P.C. He was further sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 417 I.P.C. Both the sentences were directed to run concurrently.
2. The prosecution case, in brief, is as follows:
The victim- PW. 1 was a student studying III year B-Tech (ECE) in Vignan University, Vadlamudi Village, while the appellant was pursuing II year B-Tech (Civil) in St. Mary's Engineering College, Narakoduru Village. Both belonged to the same village and it is alleged PW. 1 and the appellant used to meet at Gollamudipadu cross road of Munipalli Village in the morning in order to go to their colleges by availing separate buses. Friendship developed between them and the appellant used to sent messages to PW. 1. Once the appellant sent obscene pictures and messages to PW. 1. She reported the matter to her parents-PWs. 2 and 3. The issue was taken up with the appellant and his parents. Appellant assured that he would not repeat such behavior in future. On 23.07.2014 in the morning the appellant met PW. 1 at the bus stand and apologized for his earlier conduct. He told her that it was his birthday and offered her sweets and coke. After consuming them, PW. 1 felt giddy. Appellant offered to take her to the hospital and both of them boarded an auto. When they reached Manchala, she lost consciousness. After two hours, she regained consciousness and found herself in a dark room without clothes. On enquiry, appellant stated that he had administered intoxicants and had sexual intercourse with her. He threatened he had taken obscene photographs and videos which he would upload in social media if she did not marry him. In view of such threat, PW. 1 agreed to marry the appellant on condition that he deletes the photographs. He accepted such proposal. Thereafter, on her way back, she noticed the name of the premises was Varun Lodge, Guntur. Subsequently, the appellant continued to hold out threats and PW. 1 was cohabited with him in the same lodge two or three times. On 25.02.2016 at 12:00 Noon, appellant asked her over phone to come to a temple near quarry of Narakoduru, Guntur. When she reached the place, she did not find the appellant, but his parents and relations threatened her. She sent a message to the appellant. After ten minutes, the appellant came to that place and assured that he would convince his parents. He also requested her to leave her house without knowledge of her parents to solemnize marriage with him. As advised, on 26.02.2016 she left her house and came to the house of one Divya at Pedakakani and stayed there for two days. But, appellant did not contact her. His friend Ramesh told her the appellant had been taken into custody in view of missing report lodged by her parents. In the night of 29.02.2016 Ramesh took her to the residence of Vidyasagar, a caste elder. She stayed in the house of Vidyasagar. After two days, the matter was placed before caste elders. While her parents did not attend the meeting, appellant and his relations came to the meeting and father of the appellant stated that his son may roam with 100 women and he is not agreeable to marry him off to them. As the appellant and his relations refused to marry, she approached Ponnur Rural Police Station on 09.03.2016 and lodged a complaint-Ex. P. 1. She was examined in the Government Hospital, in
