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ANDHRA PRADESH HIGH COURT
Joymalya Bagchi, J.
Kagitha Narendra – Appellant
Versus
The State of A.P. – Respondent
Criminal Appeal No. 444 of 2019
Decided on 28-01-2021
Indian Penal Code, 1860 – Sections 376(1) and 417 – Indian Evidence Act, 1872 – Section 114A – Rape and cheating – Conviction and sentence – Prosecution case rests on version of P.W. 1 that initial cohabitation between her and appellant was a product of extortion and blackmail – Her obscene pictures were taken and she was made to agree to marry him on the threat that obscene pictures shall be uploaded on social media – She agreed to marry on condition that obscene pictures shall be deleted from mobile phone – Subsequently, on similar threats, she cohabited with appellant two to three times – When her version is tested in light of her subsequent conduct and other evidence on record, allegation of rape by resorting to extortion and blackmail appears to be apparently absurd and inherently improbable – Mobile phone of appellant was also seized in course of investigation and its verification does not disclose any obscene picture – It is difficult to accept that P.W. 1 had been initially subjected to sexual intercourse under intoxication or had been blackmailed to cohabit on threat of disclosure of obscene pictures – If this part of prosecution case is not believed, what remains is one of free mixing between two college going students, which was not approved by their parents – Owing to parental opposition, marriage proposal fizzled out – Cohabitation between consenting adults on promise of marriage is not rape unless it is proved that appellant had in bad faith and with mala fide intentions held out a false promise of marriage from inception of relationship – Subsequent failure to marry would not invariably lead to inference of deceit or dishonest – Allegation of cohabitation by use of blackmail and/or extortion has not been proved – Presumption under Section 114A of Evidence Act does not apply to facts of this case – Prosecution has failed to prove its case beyond reasonable doubt and appellant is liable to be acquitted for charges levelled against him – Conviction and sentence set aside and appellant acquitted. (Paras 11, 12, 13, 16, 19, 21 and 22)
Result Criminal Appeal allowed.
JUDGMENT
(Taken up through video conferencing)
Joymalya Bagchi, J.—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, i
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