Burla Laxminarayana Laxman, vs State Of A.P.

The appellant is convicted for the offence under Section 417 IPC and sentenced to undergo six months rigorous imprisonment and to pay fine of Rs.1,000/-, in default, to suffer simple imprisonment for one month vide judgment dated 12.09.2008 in S.C.No.88 of 2007 passed by the Special Sessions Judge for trial of offense under SCs & STs (POA) Act, Karimnagar (for short ‘learned Sessions Judge’). Aggrieved by the same, present appeal is filed. However the appellant was acquitted under Section 3(1)(xii) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the Act’)

The case of the prosecution is that P.W.1/victim filed complaint against the appellant stating that she was staying in Karimnagar for five or six years. She belongs to Lambada caste and the appellant belongs to Padmashali caste. They were staying nearby houses in the same locality. One year prior to the complaint, the appellant proposed to PW1 stating that he loves her and intends to marry her. Accordingly, having accepted the love proposal, they had sexual intimacy over a period of time, resulting in pregnancy of P.W.1. P.W.1 asked the appellant to marry her as she was 5 months pregnant, however the appellant refused on the ground that P.W.1 belongs to lower caste and he cannot marry her. P.W.1 informed to her parents and other elders, who in turn questioned the appellant regarding marriage, however, as the appellant refused, complaint was filed.

It is further case that after filing of the case during the course of investigation, PW1 delivered a baby but died after three months. At the time of her pregnancy, a letter Ex.P2 was prepared agreeing upon her not to reveal their relationship with anyone and both of them signed on the said letter.

Learned Sessions Judge framed charges for the offences under Section 417 and Section 3(1)(xii) of the Act, however the learned Sessions Judge found the appellant not guilty for the offences under Section 3(1) (xii) of the Act but convicted for the offence of cheating.

Learned counsel for the appellant would submit that going by the statement of P.W.1 and other witnesses, no offence of cheating is made out. Further, the prosecution is relying upon Ex.P2, which letter was sent to the hand writing expert, but no opinion was given regarding the writing in the said letter. When Ex.P2 forms basis of the complaint and involvement of the appellant to infer any kind of cheating committed by the appellant, not proving the same is fatal. The opinion given under Ex.P21 was that the admitted Telugu writing of the appellant was necessary, for which reason, no opinion was given by the handwriting expert-P.W.14.

Learned counsel for the appellant, in support of his contentions, relied upon the judgment of the Hon’ble Supreme Court in the case of Tilak Raj vs. State of Himachal Pradesh [(2016) 4 Supreme Court Cases 140], wherein the Hon’ble Supreme Court held that to constitute an offence of cheating, ingredients as mentioned in Section 415 IPC have to be made out, failing which, there cannot be any conviction under Section 417 or 420 IPC and in the facts and circumstances of the case, acquitted the accused.

Learned counsel also relied upon the judgment in the case of Kagitha Narendra @ Sunny v. State of A.P, through SHO Ponnur Rural Circle, rep. by Public Prosecutor, High Court of A.P, Amaravathi [2021 (1) ALT (CRI.)223 (S.B), wherein it was found on the basis of several Hon’ble Supreme Court Judgments that dishonest intention or bad faith must exist at the initial stage of the relationship. Further, mere failure to live up to the promise of marriage without anything more cannot be a ground to convict a person of rape. In the said circumstances, the appellant was acquitted and in the facts and circumstances, it was found that the appellant therein did not have the intention at the inception to cheat before having sexual intercourse.

Learned counsel for the appellant also relied upon judgment in the case of Hari Majhi v. The State [1990 CRI.L.J 650], wherein the Kolkata High Court found that the accused and the victim having sexual intercourse frequently for a period of one year on the promise but as there was no evidence that such promise was made falsely when it was made, the accused was found not guilty.

In the present case, P.W.1, who is the alleged victim does not in any manner state that for the purpose of having sexual relationship by the appellant with her, any false promises were made. Even according to her complaint, both slowly developed intimacy and participated in sex and she got pregnant. During pregnancy, when requested, the appellant refused to marry her for the reason of her belonging to lower caste.

P.W.1 has stated that they were in love with each other. It cannot be said that having physical intimacy was sole reason of any false promise made by the appellant. Since the said sexual relation between them was consensual, it cannot be said that mere failure to marry her at a subsequent date after being in relationship over a year would not amount to an offence of cheating, when refused to marry.

To attract an offence of cheating in cases such as this, it has to be proved that the person had a fraudulent or dishonest intention from the inception and thereby for the purpose of deceiving, such person induces any person to give consent. The person so induced was deceived and she would not have consented to physical intimacy except for the false promise made. Whether the promise of marriage was made only for the reason having physical relation or not depends on facts and circumstances of a particular case. In the facts of the present case, the prosecution could not make out that there was any false intention on the part of the appellant. Admittedly slowly love blossomed and they entered into physical relation as such it cannot be said that the appellant has cheated P.W.1 only for the reason of refusing to marry.

For the aforementioned reasons, the conviction recorded by the learned Sessions Judge for the offence under Section 417 of IPC is liable to be set aside and accordingly set aside.

Accordingly, the Criminal Appeal is allowed setting aside the impugned judgment dated 12.09.2008 in SC No.88 of 2007. Since the appellant is already on bail, his bail bonds stand cancelled.

As a sequel thereto, miscellaneous applications, if any, shall stand closed.