ORDER
B. Seshasayana Reddy, J.
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/- 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-1 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. P-3 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-1 to P-5. On behalf 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/- 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 Andh LT (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.
4. It is settled law that when a conviction is recorded by the trial Judge and upheld by the first appellate Court, re-appreciation of the evidence cannot be done unless there is miscarriage of justice. It is held in State of Kerala v. Puttamana, Illath Jathavedan Namboodiri, that :
“The High Court in its revisional jurisdiction, can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of Supervisory Jurisdiction exercised by the High Court for correcting miscarriage of justice. Therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice.
5. In a criminal trial, the burden of proving everything essential to establish of the charge against the accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the order is proved. Criminality is not to be presumed, subject, of course, to some statutory exception. There is no such statutory exception pleaded in the present case.
6. The case against the petitioner/accused is that he induced P.W. 1 who is the victim to consent for sexual intercourse with a promise to marry her. “Cheating” is defined in Section 415 of IPC which is as under :
“415. Cheating : 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 of omission causes is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.
Explanation : A dishonest concealment of facts is a deception within the meaning of this Section.”
The first part of the definition relates to property. The second part need not necessarily relate to property. The second part speaks of intentional deception which is not only to induce the person deceived to do or omit to do something but also to cause damage or harm to that person in body, mind, reputation or property. It has been held by the Supreme Court in G. V. Rao v. L.H.V. Prasad, that intention and deception pre-sup-poses the existence of a dominant motive of the person making the inducement. Such inducement should have laid the person deceived or induced to do or omit to do anything which he would not have done or omitted to do if he were not deceived. The further requirement is that such act or omission should have caused damage or harm to body, mind, reputation or property. As mentioned above Section 415 of IPC has two parts. While in the first part, the person must “dishonestly” or “fraudulently” induce the complainant to deliver any property and the second part need not necessarily relate to property. In the second part, the person should intentionally induce the complainant to do or omit to do a thing. That is to say, in the first part, inducement must be dishonest or fraudulent. In the second part, the inducement should be intentional. The Supreme Court in Jaswantrai Manilal Akhaney v. State of Bombay, held that a guilty intention is an essential ingredient of the offence of cheating. In order, therefore, to secure conviction of a person for the offence of cheating, “mens rea” on the part of that person must be established. It was also observed by the Supreme Court in Mahadeo Prasad v. State of W. B., that in order to constitute the offence of cheating, the intention to deceive should be in existence at the time when the inducement was offered.
7. Section 415 of IPC does not, in any manner limit the Code in which the deception may take place nor is it necessary that the deception should be by express words, but it may be by conduct or implied in nature of transaction itself. Where the charge of cheating, as in this case, rests upon a representation, which is false and which relates not to an existing fact but to a certain future event, it must be shown by the prosecution that the representation is false to the knowledge of the accused when it was made. It will be of no consequence to show that in fact the representation has ultimately turned out to be untrue. The Calcutta High Court in Jayanti Rani Panda v. State, 1984 Cri LJ 1535 observed that if a full grown girl consents to the act of sexual intercourse on a 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. Section 90 of the Penal Code cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her. In Hari Majhi v. State, (1990 Cri LJ 650) it is held that where the charge of cheating, rests upon a representation, which is false and which relates not to an existing fact but to a certain future event, it must be shown by the prosecution that the representation is false to the knowledge of the accused when it was made. It will be of no consequence to show that in fact the representation has ultimately turned out to be untrue. In the cited case the victim conceived as a result of sexual intercourse from the accused who agreed to marry her. The accused ultimately married the victim following Hindu rites and formalities and kept up his promise. The victim consented for sexual intercourse with the accused since she loved him. Ultimately it was the love that made the parties to enter into carnal relationship. Basing on the facts, the Calcutta High Court held as follows (para 9) :
“Moreover, on the basis of the evidence on record, it cannot be held that the P.W. 1 would not have agreed to have sexual intercourse with the accused but for the alleged promise. There was love between the accused and the complainant. The accused used to give her assurance at the time of sexual intercourse that he would marry her. No one has said that she, would not have agreed to the sexual intercourse but for the alleged premise of marriage. She admits that she loved the accused. The trouble really started, as it appears, when the accused, perhaps, intended to marry another girl. In our view, the learned Judge proceeded on an erroneous assumption and approach. The evidence would go to show that the appellant had no doubt committed sexual intercourse with the prosecutrix, but such an intercourse was done with the tacit consent, if not express consent of the prosecutrix. Reliance has been placed in the case of Jayanti Rani Panda v. State reported in 1984 Cri LJ 1535 where this Court held that if a full grown girl consents to the act of sexual intercourse on a 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 act induced by misconception of fact. Section 90 of the Penal Code cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her.”
8. In Uday v. State of Karnataka, (2003 Cri LJ 1539) cited the Supreme Court considered the concept of misconception of fact and observed as follows (para 21) :
“The consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. But there is no strait-jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”
Considering the circumstances therein the Supreme Court came to the conclusion that the prosecutrix permitted the accused liberties, which, if at all, is permitted only to a person with whom one is in deep love. It is useful to extract the observation of the Supreme Court in the above referred decision and it is thus (Para 25) :
“There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90, IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, is permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O’clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.”
9. It is explicit from the above referred decisions that the consent given by the prosecutrix to the sexual intercourse with the person with whom she is in deep love on a promise that he would marry her on a later date cannot be said to be given under a misconception of fact,
10. Keeping in view the proposition of law laid down by various High Courts and Supreme Court in the above-referred decisions, I shall now proceed to consider the evidence on record in the case on hand. P.W. 1 who is the victim was a girl aged 16 years by the date of the incident. It is the petitioner/accused who roamed around her and induced her by saying that he could not live without her company. It is quite natural when a young man pleads with a girl in budding stage that he could not live without her, one can understand what would be her natural reaction. It is the persistent representations of the petitioner/accused that he could not live without her which made her to believe his promise to marry her. The evidence of P.W. 1 is crystal clear that the petitioner/ accused finding P.W. 1 alone in her house called her out and took to the house of Peerla Bapanayya which was then vacant and had sexual intercourse with her. Her consent to sexual intercourse was preceded by the false promise of marriage and persistent representations of the petitioner/accused that he could not live without her company. I feel it apposite to refer the evidence of P.W. 1 in her own words and it is thus :
“I am resident of Gangavaram village. I know the accused. I came to know the accused as he was frequently visiting my Jr. Paternal Uncle’s house at Gangavaram. My house is situated by the side of my Jr. Paternal uncle’s house. Therefore, the accused also used to come my house and thereby I developed acquaintance with him. Gradually he developed intimacy with me by saying sweet words that I was liked by him very much fell in love with me and so wanted to marry. He also told me that he cannot live without my company. This was occurred 6 months prior to my giving report i.e., in the month of April, 1993, but the accused by seeing the absence of my parents and when I was alone in my house he came to my house and he had sexual intercourse with me forcibly and against to my wish by taking me to the side house of Perla Bapanayya which was then kept vacant. He promised me to marry but I was asked not to disclose the secret affair even to my parents and he will set right things. The accused under the guise of same promise also had sexual intercourse with me for 4 or 5 times whenever he found me loneliness. This was also occurred in my house for one besides 4 times in the house of Bapanayya. Three months prior to giving my report I became pregnant because of my intimacy with the accused and so I questioned him what to do by disclosing the fact. Then the accused that his parents are not willing to receive me as his wife and so at first I was asked to get rid of my pregnancy and later to solve the problem leisurely. I was also asked to come to the hospital of one Dr. Raju by taking my friend Perala Billappa. I went to hospital of Dr. Raju as told by accused and it was occurred one month later I first questioned the accused. My friend P. Billappa also accompanied me. I was given some injections and tablets for 2 days in the same hospital for the purpose of doing abortion. The accused also came to hospital. I came to know about the person who gave medicines to me with the compounder. But I do not know him. Even on 3rd day the accused sent me some pills through my friend Billappa and. I was asked to swallow the same, but I took only half of the given pills by keeping the remaining half, I also told my friend why I was being given the medicine and how I became pregnant in the company of accused. But no abortion took place for me in spite of taking injections and medicines and I understood the same because of no menstruations periods. Then I also told the accused about the same fact and asked him what shall 1 do since I was still pregnant. 1 also asked the accused what he was to do and about marrying me. Then, the accused told me that he is prepared to marry me but questioned me how much dowry I can give. Then I expressed my desire for giving cash of Rs. 10,000/-and also gold ring of 1/2 tula on my own accord without the consultation of my elders. Then the accused told me to take Rs. 20,000/- from him and to forgetting him for ever. Therefore, I later narrated about my fate and how I was deceived in the hands of accused to my parents”
It is not in dispute that P.W. 1 delivered a female child and she is aged three years. P.Ws. 3, 4 and 5 have testified that the petitioner/accused admitted of his intimacy with P.W. 1 and thereby P.W. 1 gained pregnancy. Their evidence also further reveals that the petitioner/accused made his efforts to get the pregnancy of P.W. 1 aborted. But his efforts proved to be futile. The evidence of P.W. 1 is fully corroborated by the evidence of P.Ws. 2 to 5 in all material aspects and there is no reason for P.W. 1 to implicate the petitioner/accused as the person responsible for her pregnancy. On thorough reading of the evidence of P.W. 1, I am in no doubt to conclude that the petitioner/accused never intended to marry P.W. 1 and by deceitful means such as pleading before her that he could not live without her company and loved her immensely, made her to succumb to his desire to have sexual intercourse. The trial Court considered the evidence brought on record in right perspective and found the petitioner/accused guilty for the offence under Section 417 of IPC and the appellate Court on re-appraisal of the evidence confirmed the conviction of the petitioner/accused for the offence under Section 417 of IPC, but reduced the sentence of imprisonment from six months to one month. Both the Courts appreciated the evidence brought on record in right perspective and found the petitioner /accused guilty for the offence under Section 417 of IPC. I do not see valid ground to interfere with the conviction and sentence of the petitioner/accused for the offence under Section 417 of IPC.
11. In the result, this Criminal Revision Case fails and the same is dismissed confirming the judgment of the Sessions Judge, Mahila Court, Visakhapatnam in Crl. A. No. 28 of 2001 dated 7-1-2001.