IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE EIGHTH DAY OF FEBRUARY TWO THOUSAND AND TEN PRESENT THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.241 of 2010 Between: The Sate of Andhra Pradesh, Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant/Petitioner AND Didla Jogayya and seven others ..... Accused/Respondent JUDGMENT: The Criminal Appeal, by the State under Section 378 (3) & (1) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 23-02-2008, in Sessions Case No.95 of 2006, on the file of the learned Assistant Sessions Judge, Narasapuram, whereunder and whereby the sole Accused No.8 (Case against A-1 to A-7 separated in P.R.C.No.27 of 2000 and numbered as S.C.No.226 of 2001, ended in acquittal) was found not guilty of the offence punishable under Section 420 of the Indian Penal Code, 1860 (for short, “I.P.C.”). 2. Brief facts, that are necessary for disposal of the present Criminal Appeal, may be stated as follows: PW-3 was having illicit intimacy with A-8 for the last six months and that he promised to marry her. Because of false promise, she agreed to have sexual intercourse with A-8 and that he asked her to come to the railway station, took her cloths in a suitcase but the parents of A-8 took him away from the railway station stating that she can report to anybody. Then on the advise of the parents, the matter was referred to panchayat and on the advise of elders complaint was lodged by her to Police. Police took up investigation and after completion of investigation filed charge sheet for the offences punishable under Sections 448, 354, 323 and 506 IPC. 3. When a charge under Section 420 I.P.C. against Accused No.8 was framed, read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined P.Ws.1 to 6 and got marked Exs.P-1 to P-4. During cross examination of PW-1 Exs.D-1 to D-4 were marked by the learned defence counsel. 5. After closure of the prosecution evidence, A-8 was examined under Section 313 Cr.P.C., with reference to the incriminating circumstances appearing against him in the evidence of prosecution witnesses. He denied the same and he did not adduce any evidence on his behalf. 6. The trial court after considering the evidence came to the conclusion that there is no evidence to show that A-8 committed an offence punishable under Section 420 IPC and accordingly, he was acquitted. Challenging the same, the present Criminal Appeal is filed. 7. Now the point for determination is whether the prosecution proved its case against Accused No.8 of the offence punishable under Section 420 I.P.C., beyond all reasonable doubt and whether the judgment of the trial Court is correct, legal and proper? 8. Counsel representing the learned Public Prosecutor contended that the evidence of PW-3 is very clear that she was cheated by A-8 and she agreed for the sexual intercourse with A-8 as he made a false promise to marry her that, therefore, it is an offence punishable under Section 420 IPC and hence, she prays to set aside the order of acquittal. 9. While dealing with the order of acquittal, though the appellate Court has got full power to re-appreciate the evidence, but it will be slow in interfering with the same in view of the fact that there is a presumption under law that the accused is presumed to be innocent unless contrary is proved. That presumption of innocence is further strengthened by an order of acquittal. Unless the findings are improper or illegal, originally this court would not interfere with the same. 10. The definition of cheating under Section 415 IPC consists of two parts, under both of which the words ‘by deceiving any person’ apply. The first part is applicable if there is a deception where the accused attempted to deceive any person fraudulently or dishonestly induces the complainant to deliver the property to him. To establish the charge under Section 420 IPC it must be proved not only that the accused had cheated some one but also that by doing so he has dishonestly induced the person who has cheated to deliver any property. A person can be said to have done a thing dishonestly if he does so with the intention of causing wrongful gain to one person or wrongful loss to another. Wrongful loss means loss of property to which the person is entitled. While wrongful gain to a person means a gain to him by unlawful means of the property to which the person gaining is not legally entitled. Dishonest concealment of facts is a deception within the meaning of Section 415 IPC. If the accused made any false promise to PW- 3 that he would marry her and then the victim had given consent because of the false promise, then it can be said to be a cheating. 11. PWs.1 to 6 were examined by the prosecution. PW-3 is the victim in this case. She stated that A-8 with a promise to marry her asked her to come to Palakollu Railway station and also took her cloths in a suitcase. Because of the promise made by A- 8, she agreed for sexual intercourse and she was having sexual intercourse with him six months prior to giving of complaint. The evidence of PW-3 appears to be an improvement because the material aspects have not been stated when she was examined by the Police during the course of investigation under Section 161 (3) Cr.P.C. If really she was subjected to sexual intercourse with the accused because of the false promise, there must be some evidence to prove the same. She was not subjected to medical examination and she was not referred to the Doctor. Therefore, there is absolutely no evidence to show that PW-3 was subjected to sexual assault by A-8 prior to giving report. As the evidence of PW-3 in the court appears to be an improvement, the trial court has not placed any reliance on her evidence alone to base a conviction. Therefore, in these circumstances, the trial Court rightly acquitted A-8. There are no compelling or substantial reasons to interfere with the same. Hence, the Criminal Appeal is devoid of merit and is liable to be dismissed. 11. Accordingly, the Criminal Appeal is dismissed against A- 8 confirming the judgment, dated 23-02-2008, in Sessions Case No.95 of 2006, on the file of the learned Assistant Sessions Judge, Narasapuram. ________________ K.C. BHANU, J February 08, 2010 PN THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL APPEAL No.241 of 2010 February 08, 2010