1. This appeal is preferred by the appellants-Accused Nos.1 to 3 aggrieved by the conviction and sentence inflicted by the Special Sessions Judge for
trial of Cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act cum Additional Sessions Judge, Khammam for the
offences under Sections 417, 313 506 IPC and Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
(for short ‘SC & ST Act’) against A1 and for the offences under Sections 313 read with 34 and 506 read with 34 IPC and Section 3 (1) (x) of
the SC & ST Act against A2 and A3 vide judgment dated 31.12.2012 in SC No.6 of 2012.
2. The case of the prosecution in brief was that on 25.12.2010 at 6.00 PM, the de facto complainant came to Khammam III Town Police Station and
lodged a Telugu written report stating that she was a resident of Vodduramavaram village H/o.Pusugudem, Mulkalapalli Mandal, Khammam District
and she was working as a Teacher in Kinnera Public School, Dammaigudem Village, Tirumalayapalam Mandal since June, 2009. While she was
working in the village, the 1st appellant â€" A1 used to follow her stating that he liked her and had sexual intercourse with her for about 1 ½ years in
a house at Saradhi Nagar, Khammam and impregnated her. When she insisted for marriage, the mother and brother of A1 i.e. A2 and A3 took her to
an RMP Doctor by making her believe that they would get her marriage with A1 after getting abortion and administered some tablets. When there
was heavy bleeding, she was taken to Dr. Swarna Kumari Mother & Child Hospital, Khammam and got her aborted. After termination of pregnancy,
when she insisted about the marriage, A1 to A3 abused her and threatened to kill her by pouring Acid, if she turned up at their house and left her in
the Bus Stand, Khammam. Basing on the said report, Khammam III Town Police registered a case vide Crime No.204 of 2010 under Sections 417,
420, 313, 506 IPC and Section 3 (1) (xii) of SC & ST Act and issued FIR. On receipt of proceedings from the Superintendent of Police, Khammam,
the SDPO Khammam took up investigation of the case, recorded the statements of witnesses, visited the scene of offence, drafted the crime detail
form in the presence of the mediators and referred the victim to the Government Hospital for medical examination and report and sent requisition
letters to the MRO of Thirumalayapalem and Mulakapalli for furnishing the caste particulars of the accused and the de facto complainant. He
effected the arrest of A1 to A3 on 31.12.2010 and 08.02.2011 and produced them before the Court. He sent A1 to the Medical Officer, Government
Hospital, Khammam and secured the potency report. After receiving the caste certificate of the victim and the accused, filed charge sheet against A1
to A3 for the offences under Sections 417, 420, 313 and 506 IPC and Section 3 (1) (xii) of the SC & ST Act. The case was taken on file by the III
Additional Judicial Magistrate of First Class, Khammam and committed to the Special Sessions Judge for trial of cases under SC & ST Act cum
Additional Sessions Judge at Khammam by numbering it as PRC No.4 of 2011.
2.1 The case was taken on file by the Special Court by numbering it as SC No.6 of 2012 and charges were framed against A1 for the offences under
Sections 417, 313, 506 IPC and 3 (1) (xii) of the SC & ST Act. Charges were framed against A2 and A3 for the offences under Sections 313 read
with 34 IPC, 506 read with 34 IPC and 3 (1) (x) and 3 (1) (xii) of SC & ST Act. A1 to A3 pleaded not guilty and claimed to be tried.
2.2 To prove its case, the prosecution got examined PWs.1 to 15 and got marked Exs.P1 to P15. A portion of the 161 Cr.P.C. statement of PW.1 was
marked as Ex.D.1 in support of the defence. The accused were examined under Section 313 Cr.P.C. and they denied the incriminating material
appearing against them in the evidence of the prosecution witnesses. After hearing the learned Special Public Prosecutor and the learned defence
counsel, the Special Sessions Judge for trial of cases under SC & ST Act found the accused guilty of the offences and convicted A1 for the offence
under Section 415 read with 417 IPC and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs.1,000/-in default of
payment of fine to undergo simple imprisonment for three months. He sentenced A1 to undergo rigorous imprisonment for 10 years and fine of
Rs.3,000/- in default to undergo simple imprisonment for six months for the offence under Section 313 IPC. He sentenced A1 to undergo rigorous
imprisonment for six months and fine of Rs.1,000/- in default to undergo simple imprisonment for three months for the offence under Section 3 (1) (x)
of the SC and ST Act. He sentenced A2 to undergo rigorous imprisonment for five years and fine of Rs.1,000/- in default to undergo simple
imprisonment for six months for the offence under Section 313 read with 34 IPC and sentenced her to simple imprisonment for six months and fine of
Rs.1,000/- in default to undergo simple imprisonment for three months for the offence under Section 3 (1) (x) of the SC & ST Act. He sentenced A3
to undergo rigorous imprisonment for five years and fine of Rs.1,000/- in default to undergo simple imprisonment for six months for the offence under
Section 313 read with 34 IPC and further sentenced to undergo simple imprisonment for six months and fine of Rs.1,000/- in default to undergo simple
imprisonment for three months for the offence under Section 3 (1) (x) of the SC & ST Act. The trial Court directed all the sentences to run
concurrently against all the accused. He acquitted the accused for the offences under Section 506 read with 34 IPC and for the offence under Section
3 (1) (xii) of the SC and ST Act.
3. Aggrieved by the said conviction and sentence inflicted by the trial Court, the accused preferred this appeal contending that the trial Court convicted
the accused basing on surmises and assumptions. There were contradictions in the evidence of PW.1. The essential ingredients as to abusing the
complainant in the name of her caste at any public place in public view were inherently and materially wanting in this case. The trial Judge went
wrong in convicting the appellants for the said unfounded offence and Section 3 (1) (x) of the SC & ST Act had no applicability to the facts of the
case. The trial Court ought not to have framed the charge or had taken cognizance against the appellants for the said offence. The complaint as well
as the evidence of PW.1 spoke of her love bond with A1 and her voluntary submission to be in the sexual company of A1. She lived together with A1
for a long period of one and half year at Khammam in a rented house away from her native village. Only after her alleged pregnancy, she alleged to
have insisted for marriage, which would nagate the element of cheating with a promise to marry as required to be established under Section 415 IPC.
The Doctor (PW.4) and the RMP doctor (PW.6), who had caused mis-carriage or abortion were not shown as accused in the case. The evidence of
PW.4 was suggestive of the fact that PW.1 was a consenting party for the alleged termination or abortion. The essential ingredients to constitute the
offence under Section 313 read with 312 IPC were inherently and materially wanting in the case. The trial Judge went wrong in framing charge under
Section 313 IPC or in convicting the 1st appellant-A1 in the said unfounded offence. The trial Judge ignored to look into the evidence of PW.4 which
did not speak of the presence of appellants 2 and 3 at the time when PW.1 alleged to have approached PW.4 in the alleged termination of pregnancy.
There was absolutely no evidence on record to substantiate that the appellants 2 and 3 had caused mis-carriage more so without the consent of PW.1.
The trial Judge went wrong in convicting the appellants 2 and 3 for the offence under Section 313 read with 34 IPC. The trial Judge ought to have
taken note of all the inconsistencies and embellishments. There was no proper appreciation of the facts on record in proper perspective. The
conclusion arrived at as to the guilt of the appellants was haphazard, surmisical and erroneous both on law and facts. The judgment of the trial Court
was not sustainable and prayed to allow the appeal by setting aside the judgment of conviction and sentence passed against the appellants in SC No.6
of 2012 dated 31.12.2012 on the file of Special Sessions Judge for trial of SC & ST Cases, Khammam.
4. Heard Sri C. Sharan Reddy, learned counsel for the appellants and Sri K. Venakteshwar Rao, learned Public Prosecutor for the respondents.
5. Now the point for consideration is:
Whether the judgment of the trial Court in convicting the accused-appellants for the offences under Sections 417, 313, 506 IPC and Section 3 (1) (x)
of the SC and ST (PoA) Act and sentencing them as stated above is sustainable or requires any interference by this Court?
6. As seen from the record, the charge sheet is not filed against the accused under Section 3 (1) (x) of the SC & ST Act. The charge sheet is only
filed for the offences under Sections 417, 420, 313 and 506 IPC and 3(1) (xii) of the SC & ST Act. The III Additional Judicial Magistrate of First
Class, Khammam had also not taken cognizance of the offences under Section 3 (1) (x) of the SC & ST Act. The substance of the allegations
attracting the offence under Section 3 (1) (x) of the SC & ST Act were not put forth to A1 to A3. The essential ingredients as to the abuse made by
the accused against the complainant in the name of her caste at any public place and in any public view and the details as to when such abuses were
made, where such incident took place, whether it was in the public view, in the presence of any witnesses or not was not put forth to the accused
while framing the charge under Section 3 (1) (x) of the SC & ST Act. The charge would only specify that:
“That you-A1 to A3 on or about the same day, time, place and during the course of same transaction as specified in Charge No.2 supra, not being
a member of Scheduled Caste or Scheduled Tribe, being in a position to dominate the will of Banoth Janaki @ Sreeja, D/o. Jaithram who belongs to
Lambada Caste (ST) and used that position to exploit her sexually, to which she would not have otherwise agreed and that you thereby committed an
offence punishable U/Sec.3 (1) (xii) & 3 (1) (x) of SCs/STs (POA) Act, 1989 and within my cognizance.â€
7. Thus, the charge would disclose that the ingredients of Section 3(1) (x) of the SC & ST Act were not put forth to the accused and only the
substance of allegations under Section 3 (1) (xii) of the SC & ST Act were put forth to the accused and Section 3 (1) (x) appears to have been
incorporated by the side of 3 (1) (xii) without specifying its details. When the accused persons were heard on the charges on 10.04.2012 also, they
were not informed about framing of any charge under Section 3 (1) (x) of the SC & ST Act. The suggestions given to the witnesses in the cross-
examinations also would not disclose that the defence had given any suggestion being aware of the charge under Section 3 (1) (x) of the SC & ST
Act. Hence, without putting the substance of the allegations of the charge under Section 3 (1) (x) of the SC & ST Act to the accused and the defence
unaware of the said charge while conducting the trial, convicting the accused for the offence under Section 3 (1) (x) of the SC & ST Act causes great
prejudice to the accused. The examination of the accused under Section 313 Cr.P.C. also would not disclose about they being questioned on the
evidence of the witnesses with regard to the specific ingredients of the offence under Section 3 (1) (x) of the SC & ST Act.
8. Hence, convicting the accused for the said offence without explaining to them about the charge had certainly prejudiced them as they had not
properly prepared in their defence for the said charge. Hence, the conviction and sentence of the accused for the offence under Section 3 (1)(x) of
the SC & ST Act is considered as illegal and liable to be set aside.
9. With regard to the charge under Section 417 IPC, it deals with punishment for cheating. The definition of cheating is provided under Section 415 of
IPC as under:
“Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent
that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if
he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is
said to ""cheat"".
Explanation.â€"A dishonest concealment of facts is a deception within the meaning of this section.â€
10. The ingredients required to constitute an offence of cheating are:
“(1) There should be fraudulent or dishonest inducement of a person by deceiving him,
(2) (a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived, and
(3) in cases covered by (2)(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body,
mind, reputation or propertyâ€
11. Section 415 IPC has two parts. While in the first part, the person must dishonestly or fraudulently induce the complainant to deliver any property;
the second part need not necessarily relate to property. The facts of the present case would come under the second part of Section 415 IPC. The
prosecution has to prove that A1 had intentionally induced the complainant to do an act which she would not have done if she were not so deceived
and the said act caused damage or harm to her in body, mind, reputation etc.
12. PW.1 stated in her complaint, marked as Ex.P1, that she worked as a Teacher in Kinnera Public School, Dammaigudem, Tirumalayapalem since
2009. A1 followed her by saying that he loved her and was interested in her and if she was not with him he would be no more and made her to
surrender to him and they both lived together at Saradhi Nagar for a period of one and half year. When she got pregnant and demanded A1 to marry
her, then his mother i.e. A2 and his brother i.e. A3 went to RMP doctor Venkateshwarlu and all made her to believe that after she got abortion, they
would perform her marriage with A1 and took her to Dr. Swarna kumari Hospital at Khammam and got terminated her pregnancy. Later when she
asked them about the marriage, they refused to perform the marriage as she belonged to lower caste and threatened her with dire consequences if she
came to their house again and that they would pour acid on her and left her alone at Khammam Bus Stand and went away.
13. In her evidence during trial, PW.1 stated that A1 followed her stating that he loved her and without her he could not live and that he would marry
her and he used to take her out after school hours. They lived together in one room at Saradhi Nagar, Khammam and led sexual life. A1 worked as
Sales Executive in MTS Mobiles. She got pregnancy. When she became pregnant, she asked A1 to marry her.
14. Thus, her evidence would not disclose that she entered into sexual relationship with A1 believing his words that he would marry her. Her evidence
would disclose that only after she becoming pregnant, she asked A1 to marry her but not earlier. Even in her complaint, she had not stated about A1
promising to marry her before they entering into sexual relationship. In Ex.P.1 she stated that she demanded him to marry her only after she became
pregnant.
15. The prosecution got examined two other witnesses i.e. PWs.5 and 11, who were shown to be elders and circumstantial witnesses and whom
PW.1 approached to conciliate for her marriage with A1.
16. PW.5 stated that he was an MPTC Member and the native place of PW.1 would fall within his jurisdiction. In the year 2010, PW.1 approached
him and asked him to arrange for marriage with A1 as they were lovers. He along with LW.7 (PW.11) asked A1 whether he was going to marry
PW.1. A1 stated that he would marry after securing a job. PW5 stated that he also informed to the parents of PW.1, then they reprimanded PW.1 for
falling in love with A1. When he asked A1 and PW.1 about the marriage they both stated that they were living at Khammam. After five or six months
thereafter, he asked PW.1 and A1 to marry. A1 requested time. In the month of November or December 2010, PW.1 approached him and stated that
A1 refused to marry her. Then he advised PW.1 to give a police complaint. The brother of A1 also stated that A1 would not marry PW.1 since she
belonged to a Scheduled Tribe.
In his cross examination, PW.5 stated that:
“I was thinking that police will do counselling between A1 and PW.1. Six months prior to giving complaint, PW.1 approached me and informed
about her love affair. It is true that PW.1 asked us to convince her parents for marriage. I tried to convince the parents of PW.1. By the time of giving
complaint PW.1 was studying B.Ed.â€
17. PW.11 stated in his chief examination that:
“I am Mandal organizer for CPI party for Mulakalapally mandal. In the month of February and March in the year 2010 I went to
Vodduramavaram village along with PW-5. PW-1 told me that she had acquaintance with A-1 and that she loved him and that they are intending to
marry and she asked us to convince her parents. Then we assured to PW-1 that we will convince her parents for marriage. In the month of August,
2010, I along with PW 1 went to Collector office, Khammam on personal work. We called PW-1, she came along with A-1. A-1 told us that he will
marry PW-1 after he got job. In the month of October, 2010 again we came to Khammam on some work and went to Bus stand then PW-1 and all
the accused came to us. A -2 informed us that she will perform marriage of A-1 with PW-1 after crop is harvested. Thereafter (10) days PW-1
telephoned to us and informed us that Accused No.2 and 3 got pregnancy of PW-1 terminated on assurance of performing marriage. In the month of
December, 2010 we went to Dammaigudem to make enquiry. By then a news item was published that PW-1 was holding Mouna Poratam against the
accused and that Women Associations are supporting. Thereafter we went to Tirumalayapalem Police. When we offered complaint police asked for
negotiations. When we enquired with the accused A-2 stated that they will not perform marriage of PW-1 with A-1 since she belongs to Lambadi and
lower caste and they will loose their prestige and further threatened that PW-1 will be killed by pouring acid.â€
In the cross-examination this witness stated that:
“I informed to mother of PW.1 about love affair between PW.1 and A2, the mother stated to me that her husband will not agree for marriage and
that he may kill PW.1. The father came to know about affair when Dharna is being held and somebody telephoned to them.â€
18. Thus, the evidence of PWs.5 and 11 would disclose that PW.1 and A1 approached them to convince the parents of PW.1 but not the parents of
A1 and both these witnesses had informed the mother of PW.1 about love affair between PW.1 and A1 but the mother of PW.1 refused to perform
the marriage stating that her husband would not agree for the marriage and he might even kill PW.1. Thus, the parents of PW.1 were against to the
marriage of PW.1 with A1. As per the evidence of these witnesses, they could not convince the parents of PW.1 for the marriage of PW.1 with A1.
The complainant (PW.1) knowing fully well that her parents were against her marriage with A1, continued to live in a room with A1 and led sexual
life with him. She is an educated woman, who did her B.Ed. and working as a Teacher in a private school. Knowing fully well that she and A1
belonged to separate castes or communities and knowing fully well that her parents are also against to her marriage with A1, she voluntarily
cohabitated with him and continued her live in relationship with A1. Hence, it cannot be assumed that believing the assurance of A1 that he would
marry her, she entered into sexual relationship with A1 and A1 cheated her and committed the offence under Section 415 IPC. Hence, this Court is of
the view that the prosecution failed to prove the guilt of A1 for the offence under Section 415 IPC punishable under Section 417 IPC.
19. The observations of the trial Court that:
“Srija would not have consented for sexual intercourse unless there is a promise from accused No.1 that he would marry her. It is further
established by accused No.2 and 3 that if she undergoes for abortion, then they will perform her marriage. In the entire cross examination, there is
nothing suggested that Srija had got enemity with accused No.1 to 3. It is not said that Srija was leading a vagabond life and of loose character. A
woman will not take risk of keeping their reputation at stake to file a false complaint. There is strong circumstantial evidence against accused No.1
that he had cohabited, got impregnated her, got aborted her pregnancy and finally he refused to marry herâ€,
These observations are based upon surmises and conjectures. The accused can be held guilty basing on the evidence but not on assumptions. The
court could not assume that the complainant would not have consented for the sexual intercourse unless there was promise from A1, without any
evidence in the said regard. Hence, it is considered fit to set aside the conviction and sentence of A1 for the offence under Section 417 IPC.
20. Section 313 IPC is pertaining to causing mis-carriage without woman’s consent. It reads as follows:
“313. Causing miscarriage without woman’s consent.â€
Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not,
shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine.â€
21. Causing mis-carriage is defined under Section 312 IPC. It reads as under:
“312. Causing miscarriage.â€"Whoever voluntarily causes a woman with child to miscarry, shall, if such miscarriage be not caused in good faith
for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or
with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to fine. Explanation.â€"A woman who causes herself to miscarry, is within the meaning of this section.â€
22. Thus, this section aims at punishing the persons who causes mis-carriage of a woman not caused in good faith for the purpose of saving the life of
the woman and Section 313 IPC is aimed at punishing the persons causing miscarriage particularly without the consent of the woman.
23. PW.1 had not stated in her evidence that the mis-carriage was caused without her consent. She stated that A1 asked her to go for abortion that
thereafter he would marry her and A2 and A3 went to Venkateshwar Rao, RMP doctor (PW.6) and he administered some tablets. When PW.1 got
bleeding and severe stomach pain, PW.6 referred her to Dr. Swarna Kumari Hospital for abortion. A1 represented to doctor that he married her and
asked for termination of pregnancy. Dr. Swarna Kumari performed abortion at Thalli Pillala Hospital, Rythu Bazar, Khammam.
24. The RMP doctor - Venkateswar Rao was examined as PW.6. He stated that he never administered pills for termination of pregnancy of PW.1
and never referred PW.1 to the hospital of PW.4. He was declared as hostile by the prosecution and he denied the suggestions given to him by the
prosecutor in his further examination.
25. Dr. Swarna Kumari was examined as PW.4. She stated that she was running a Nursing Home under the name and style of Raja Kumari Mother
and Child Hospital, NST Road, Khammam since 2003. On 03.10.2010 at 10.30 AM, PW.1 came to her hospital along with one attendant with a
complaint of pain in abdomen and bleeding from vagina. Prior to that, she was using medicines for termination of pregnancy outside. After
examination, she found that it was an incomplete abortion, checked and removed the remaining products of pregnancy and terminated it. In the
register maintained by her, the complainant as well as one V. Naresh signed. The relevant entry containing the signatures of PW.1 and Naresh was
marked as Ex.P4. On a perusal of Ex.P4, the complainant signed at the relevant entry at the designated place of the consent of patient for
abortion/investigation/ termination in the case sheet. In the case sheet, the complainant was referred as wife of Naresh and her occupation was shown
as student and her age as 21 years, the date of admission as 03.10.2010 at 10.30 AM and date of discharge as 05.10.2010 at 12.00 PM and the
Diagnosis as incomplete abortion and the Result as for Medical termination of pregnancy and Date and Nature of operation as D & C on 03.10.2010
at 11.00 AM. Thus, the complainant herself signed on the consent form and she had not stated in her evidence that the pregnancy was terminated
without her consent.
26. Learned counsel for the appellants relied upon the judgment of the Hon’ble Apex Court in Prabhu v. The State of Tamil Nadu 2018 (4) RCR
(Criminal) 455, wherein on a similar facts, it was held that:
“(8) Insofar as the conviction of the appellant under Section 313 I.P.C. is concerned, the evidence of Dr. Valli (PW-8) assumes importance. In her
evidence Dr. Valli (PW-8) has stated that on 21st October, 2004 at 12.00 noon PW-1 came to the hospital with bleeding and lower abdominal pain
along with one whose name is stated to be registered as “Prabhuâ€, as her husband. Dr. Valli (PW-8) further stated that in order to save the life of
PW-1 after obtaining her consent Dr. Valli (PW-8) has medically terminated the pregnancy of PW-1. Though PW-1 has stated that the abortion was
done compulsorily at the instance of the appellant, the evidence of Dr. Valli (PW-8) does not support the version of PW-1.
(9) The essential ingredient of Section 313 I.P.C. is that “Causing miscarriage without woman’s consentâ€. But as per the evidence of Dr.
Valli (PW-8) consent of PW-1 was taken and, therefore, it cannot be said that the ingredients of Section 313 I.P.C. has been established by the
prosecution.â€
27. In the present case also PW.1 â€" complainant is an educated woman, a major and had given her consent for terminating her pregnancy. The
evidence of PW.4 and the document marked as Ex.P.4 also would support that the termination of pregnancy was conducted as per the consent of
PW.1. Hence, the conviction of A1 to A3 for the offence under Section 313 read with Section 34 IPC by the trial Court is considered as illegal and
not in accordance with law and hence, the same is liable to be set aside. As such, the point is answered in favour of the appellants holding that the trial
Court erred in convicting A1 for the offence under Section 417 IPC; A2 and A3 for the offence under Sections 313 read with 34 IPC and all the
accused under Section 3 (1) (x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentencing them to
imprisonment.
28. In the result, the Criminal Appeal is allowed setting aside the conviction and imprisonment inflicted by the Special Sessions Judge for trial of Cases
under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act cum Additional Sessions Judge, Khammam, vide judgment dated
31.12.2012 in SC No.6 of 2012. The appellant No.1 - A1 is acquitted of the offence punishable under Sections 417 IPC; appellants Nos.2 and 3 - A2
and A3 are acquitted for the offence under Sections 313 read with 34 IPC and all the accused are acquitted for the offence under Section 3 (1) (x) of
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Bail bonds shall stand cancelled and the sureties are discharged.
Miscellaneous Petitions pending, if any, shall stand closed.