Madras High Court
Mariyalio Amuthan vs The Inspector Of Police on 11 August, 2021
Crl.A.No.239 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :21.06.2022
Pronounced on :28.06.2022
CORAM:
THE HONOURABLE DR. JUSTICE G. JAYACHANDRAN
Criminal Appeal No.239 of 2017
Mariyalio Amuthan .. Appellant
/versus/
The Inspector of Police,
Arakandanallur Police Station,
Crime No.685 of 2011,
Villupuram District. .. Respondent
Prayer: Criminal Appeal has been filed under Section 374(2) of
Cr.P.C., to set aside the judgment passed against the appellant on
17.03.2017 in S.C.No.183 of 2013 on the file of the Sessions Judge,
Mahalir Neethimandram(fast Track Court), Villupuram and acquit the
appellant for the charges.
For Appellant :Mr.Ramamoorthy for
Mr.P.Pazhamalai
For Respondent :Mr.S.Udaya Kumar
Govt.Advocate (Crl.Side)
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Crl.A.No.239 of 2017
JUDGMENT
On a complaint given by one Mahimai Arockiya Mary, daughter of
Arockiya Dass, the respondent police registered case in Crime No.685 of
2011 under Sections 417, 376 IPC and Section 4 of Tamil Nadu
Prevention of Women Harassment Act against Mariyalio Amuthan
(appellant herein) and 5 others.
2. On completion of investigation, the respondent police filed final
report. On the material relied on by the prosecution, the Principal District
and Sessions Judge, Villupuram framed the following Charges:
Charge 1: ( Against A-1)
A-1 (Mariyalio Amuthan), on the false promise to marry the
defacto complainant, had sexual intercourse with her on 14//12/2011.
Thereafter, he refused to marry her. Thereby, deceived her, which is an
act punishable under Section 417 of IPC.
Charge -2: ( Against A-1)
A-1, in continuation of the above charge, by committing
intercourse with the defacto complainant by force, had committed
offence punishable under Section 376 of IPC.
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Charge -3: ( Against A-1 to A-6)
In continuation of the above incident, on 14/12/2011 at about 7.00
p.m, when the defacto complainant and her mother came to the house of
A-1 to seek redressal, A-1 to A-6 threatened to burn the defacto
complainant and her mother alive pouring kerosene and kill them,
thereby committed offence punishable under Section 506 (2) IPC.
Charge -4: (A-2 to A-6)
In continuation of the above incident, A-2 to A-6 without
provocation assaulted the defacto complainant and her mother with
wooden logs and hands, thereby committed offence punishable under
Section 352 IPC.
Charge -5: ( A-1 to A-6)
On the date and time mentioned above, A-1 to A-6 caused cruelty
to the defacto complainant , thereby committed offence punishable under
Section 4 of Tamil Nadu Prevention of Women Harassment Act.
3. To substantiate the above charges, the prosecution examined 16
witnesses. Marked 16 documents and one material object. The third
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accused (father of the first accused ) had mounted the witness box and
examined as DW-1.
4. The trial Court held that the first charge against the first accused
for the offence under Section 417 IPC alone proved. The rest of the
charges 2 to 5 held not proved. In the result, A-1 was sentenced to
undergo one year Rigorous Imprisonment and to pay a fine of Rs.5,000/-
in default ,3 months Rigorous Imprisonment. A-2 to A-6 were acquitted
of all charges.
5. Aggrieved by the conviction and sentence, the instant Criminal
Appeal is filed.
6. The case of the prosecution as spoken by PW-1[defacto
complainant-Mahimai Arockia Mary] is that she and the first accused
belongs to same village. The first accused is related to her cousin’s
husband. She used to meet him while attending the Church. During in the
month of September, 2003, the first accused proposed his love to her. On
9th September, 2003, she accepted his proposal. When their love came to
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the knowledge of the second accused, who is the mother of the first
accused, the matter was mediated by Fr.John Edison. The first accused
agreed to marry her and gave a written undertaking(Ex.P-1). The first
accused assured to marry her after completion of her studies. After
completion of her 12th Standard in the year 2008, she joined B.A. and the
first accused got job in Indian Army. When he came on leave after
training, she gave money to A-1, since he told her that he is yet to receive
his salary. She transferred Rs.8000/- to his bank account. The first
accused used to take her to Vellangani Temple frequently. Once when
she and the first accused went to Vellangani along with her friends, her
friends alone returned home. She and the first accused stayed back in
Vellangani booked room in a hotel. A-1 forcible raped her and when she
objected, he promised that he is going to marry her. At Vellangani
Church in front of the Father, they exchanged ring and returned home.
Thereafter, whenever A-1 came on leave, he used to have sex with her.
Once A-1 came on leave, she went to his house to see him. His mother
(A-2) stopped her at the street corner and scolded her and threatened her
to leave her son free. During in the month of June 2011, the first accused
came to her house and was cordial for one week. Thereafter, he stopped
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contacting her, suspecting that he is hiding from her, she went to A-1
house and found A-1 was talking intimately with daughter of his aunty.
She gave police complaint (Ex.P-4) about the deceit of A-1 on
30/07/2011. To Aragandanallur Police, A-1 gave an undertaking letter
that he will marry her. Believing his promise she accompanied him to
Vellangani. The photographs taken are in CD marked as M.O-1. Later
she found, A-1 frequenting going to his uncle’s house and closely
moving with Mahimai Linova (A-1 uncle’s daughter). In this regard, she
gave another complaint Ex.P-5 to the police.
7. The further deposition of PW-1 is, A-1 and A-6 are friends. One
day, A-6 told her, A1 will not allow her to marry and A1 will blackmail
the defacto complainant that he will commit suicide, if A-1 marry her
(PW-1). She also heard A-4 advising A-1 to love PW-1 for time pass, but
marry Mahimai Linova. When she enquired this with A-1, he gave his
army identity card and a letter to Village Administrative Officer and
promised to marry her on the next day and went. He was not traceable for
days together. Later, on 14th December, 2011, when she was passing
through A-1 house, she heard the voice of A-1. She went inside and
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quarrelled with him for not contacting her. At that time, A-1 confined her
in a room and raped. She came home and reported to her mother. Then
she and mother went to A-1 house and questioned A-1's conduct. At that
time, A-2 held her hair and bite her hand. A-3 hit her with wooden log on
her shoulder and jaw. A-1's sister pushed her down. A-1's brother abused
her in filthy words and told that his brother will not marry her. Therefore,
she went to the police station and gave complaint on the next day.
8. The undertaking given by the accused (Ex.P-1); love letters
written by the accused to PW-1 (Ex.P-2 series); bank challan (Ex.P-3) to
show that PW-1 had transferred money to A-1; complaints given by PW-
1 to police on various dates (Ex.P-4 to Ex.P-6) and Ex.P-10 (medical
certificate of PW-1) are some of the documents strongly relied on by the
prosecution for proof of the charges.
9. The third accused, to disprove the case of the defacto
complainant that on 14/12/2011, she was assaulted by the accused
persons at about 7.00 p.m, had mounted the witness box and examined as
DW-1. He has deposed that, on 14/12/2011, his son (A-1) got married to
Vinola at Chennai. The marriage certificate marked as Ex.D-1. On that
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day, all his family members were at Chennai attending the marriage. He
did not go for marriage, since he was affected with psoriasis. His family
members returned home at about night 1.00 o’ clock.
10. The trial Court, on considering the fact is that, the prosecution
has not proved the alleged occurrence on 14/12/2011. Therefore, the
charge of rape and assault found not proved. However, the trial Court,
based on the love letters, undertaking deed and the oral evidence, held
that A-1 guilty of offence under Section 417 IPC.
11. The learned counsel for the appellant pointing out that, the FIR
and the charges are centered around the incident alleged to have occurred
at the house of the accused on 14/12/2011 at about 7.00 p.m. The
accused through DW-1 and Ex.D-1 had clearly established that they were
not present at that place and time mentioned in the charges. Therefore,
the embellished version of PW-1 in the deposition, which were not part
of the charge, has rightly been disbelieved by the trial Court. However,
the trial Court failed to appreciate that the charge against A-1 in respect
of offence under Section 417 IPC is not made out and the evidence for
prosecution is not sufficient to satisfy the ingredients of Section 417 IPC.
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12. In support of his submission, the learned counsel rely upon the
following judgments:
(i)Muthukumar v. The State rep.by the Inspector of
Police, All Women Police Station, Srivaikundam,
Thoothukudi District in Crl.A.(MD) No.375 of 2015,
dated 11/08/2021;
(ii)V.Kotteeswaran v. The State, Represented by the
Inspector of Police, Periyathachur Police Station,
Villupuram District reported in [(2020) 2 LW (Crl.) 695];
(iii)Pramod Suryabhan Pawar v. State of
Maharashtra and another reported in [(2019) 3 SCC (Cri)
903].
13. The genesis for all these decisions is Uday –vs- State of
Karnataka [(2003) 4 SCC 46]. The Hon’ble Supreme Court in Pramod
Suryabhan Pawar case (cited supra) had discussed at length, when the
consent of an adult women to be considered as given or obtained not
after deliberation and by deceit, had at length discussed about the case
laws, which is appropriate to extract below:-
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14. In the present case, the “misconception of fact” alleged
by the complainant is the appellant's promise to marry her.
Specifically in the context of a promise to marry, this Court has
observed that there is a distinction between a false promise given on
the understanding by the maker that it will be broken, and the
breach of a promise which is made in good faith but subsequently
not fulfilled. In Anurag Soni v. State of Chhattisgarh [Anurag Soni
v. State of Chhattisgarh, (2019) 13 SCC 1 : 2019 SCC OnLine SC
509] , this Court held : (SCC para 12)
“12. The sum and substance of the aforesaid
decisions would be that if it is established and
proved that from the inception the accused who gave
the promise to the prosecutrix to marry, did not have
any intention to marry and the prosecutrix gave the
consent for sexual intercourse on such an assurance
by the accused that he would marry her, such a
consent can be said to be a consent obtained on a
misconception of fact as per Section 90 IPC and, in
such a case, such a consent would not excuse the
offender and such an offender can be said to have
committed the rape as defined under Sections 375
IPC and can be convicted for the offence under
Section 376 IPC.”
Similar observations were made by this Court in Deepak
Gulati v. State of Haryana [Deepak Gulati v. State of Haryana,
(2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] (Deepak Gulati) :
(SCC p. 682, para 21)
“21. … There is a distinction between the
mere breach of a promise, and not fulfilling a
false promise. Thus, the court must examine
whether there was made, at an early stage a
false promise of marriage by the accused;”
15. In Yedla Srinivasa Rao v. State of A.P., the accused
forcibly established sexual relations with the complainant. When
she asked the accused why he had spoiled her life, he promised to
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marry her. On this premise, the accused repeatedly had sexual
intercourse with the complainant. When the complainant became
pregnant, the accused refused to marry her. When the matter was
brought to the panchayat, the accused admitted to having had
sexual intercourse with the complainant but subsequently
absconded. Given this factual background, the Court observed:
“10.It appears that the intention of the accused as
per the testimony of PW 1 was, right from the
beginning, not honest and he kept on promising that he
will marry her, till she became pregnant. This kind of
consent obtained by the accused cannot be said to be
any consent because she was under a misconception of
fact that the accused intends to marry her, therefore, she
had submitted to sexual intercourse with him. This fact
is also admitted by the accused that he had committed
sexual intercourse which is apparent from the testimony
of PWs 1, 2 and 3 and before the panchayat of elders of
the village. It is more than clear that the accused made a
false promise that he would marry her. Therefore, the
intention of the accused right from the beginning was
not bona fide and the poor girl submitted to the lust of
the accused, completely being misled by the accused
who held out the promise for marriage. This kind of
consent taken by the accused with clear intention not to
fulfil the promise and persuading the girl to believe that
he is going to marry her and obtained her consent for
the sexual intercourse under total misconception,
cannot be treated to be a consent.”
16.Where the promise to marry is false and the
intention of the maker at the time of making the promise itself
was not to abide by it but to deceive the woman to convince
her to engage in sexual relations, there is a “misconception of
fact” that vitiates the woman's “consent”. On the other hand, a
breach of a promise cannot be said to be a false promise. To
establish a false promise, the maker of the promise should
have had no intention of upholding his word at the time of
giving it. The “consent” of a woman under Section 375 is
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vitiated on the ground of a “misconception of fact” where such
misconception was the basis for her choosing to engage in the
said act. In Deepak Gulati [Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] this
Court observed : (SCC pp. 682-84, paras 21 & 24)
“21. … There is a distinction between the
mere breach of a promise, and not fulfilling a
false promise. Thus, the court must examine
whether there was made, at an early stage a false
promise of marriage by the accused; and whether
the consent involved was given after wholly
understanding the nature and consequences of
sexual indulgence. There may be a case where the
prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused,
and not solely on account of misrepresentation
made to her by the accused, or where an accused
on account of circumstances which he could not
have foreseen, or which were beyond his control,
was unable to marry her, despite having every
intention to do so. Such cases must be treated
differently.
24. Hence, it is evident that there must be
adequate evidence to show that at the relevant
time i.e. at the initial stage itself, the accused had
no intention whatsoever, of keeping his promise
to marry the victim. There may, of course, be
circumstances, when a person having the best of
intentions is unable to marry the victim owing to
various unavoidable circumstances. The “failure
to keep a promise made with respect to a future
uncertain date, due to reasons that are not very
clear from the evidence available, does not always
amount to misconception of fact. In order to
come within the meaning of the term
“misconception of fact”, the fact must have an
immediate relevance”. Section 90 IPC cannot be
called into aid in such a situation, to pardon the
act of a girl in entirety, and fasten criminal
liability on the other, unless the court is assured
of the fact that from the very beginning, the
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accused had never really intended to marry her.”
(emphasis supplied)
17. In Uday v. State of Karnataka, the complainant was
a college-going student when the accused promised to marry
her. In the complainant's statement, she admitted that she was
aware that there would be significant opposition from both the
complainant's and accused's families to the proposed marriage.
She engaged in sexual intercourse with the accused but
nonetheless kept the relationship secret from her family. The
Court observed that in these circumstances the accused's
promise to marry the complainant was not of immediate
relevance to the complainant's decision to engage in sexual
intercourse with the accused, which was motivated by other
factors: (SCC p. 58, para 25)
“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
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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, are 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.”
(emphasis supplied)
18.To summarise the legal position that emerges from the above
cases, the “consent” of a woman with respect to Section 375 must involve
an active and reasoned deliberation towards the proposed act. To establish
whether the “consent” was vitiated by a “misconception of fact” arising
out of a promise to marry, two propositions must be established. The
promise of marriage must have been a false promise, given in bad faith
and with no intention of being adhered to at the time it was given. The
false promise itself must be of immediate relevance, or bear a direct nexus
to the woman's decision to engage in the sexual act.”
14. On application of the above legal position laid by the Hon'ble
Supreme Court to the factual matrix of the instant case in hand, we find
that:
The accused and the defacto complainant knew each other for
nearly 7 years. They were intimate since 2003, September. They have
been meeting privately at various places and gone to distant places like
Velangani and stayed together. Exchanged ring, took photographs
together. The love letters Ex.P-2 series reveals their intimacy. The
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undertaking letter Ex.P-1 dated 03/11/2008 apparently obtained from
A-1 after the police complaint clearly show. that PW-1 had suspected
that A-1, on joining Army may not marry her. The letters of A-1 indicate
that he wanted to wait for 5 years. These letters do not indicate any sign
of deception or any force to do an act, which will cause harm to the
reputation or body of the complainant . In the said background, when the
defacto complainant had come to know about the marriage of A-1 with
one Mahimai Violina, the First Information Report lodged alleging that
on 14/12/2011 at about 7.00 pm at the house of A-1 she was forcible
raped by A-1 and the other accused attacked her. The said complaint is
given on the next day. Whereas the defence theory that A-1 and others
except A-3 were not at the place of occurrence but were at Chennai. On
that day, A-1 got married to one Magimai Vinola at Jesus with Us
Church, Royapuram, Chennai and the same was registered on the same
day at Sub-Registrar Office at Royapuram.
15. Even if the evidence of DW-1 that all other accused returned
home only mid past night at 1.00 ‘o’ clock is not believed, the allegation
of PW-1 that she was raped by A-1 on that day at his residence and other
accused attacked her with wooden log and hands, does not appears to be
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anywhere near truth. Therefore, while the trial Court rightly disbelieved
the case of the prosecution regarding Sections 376 IPC and 352 IPC and
held A-1 guilty of offence under Section 417 IPC.
16. The point under consideration is whether the ingredients to
punish A-1 for offence under Section 417 of IPC is made out or not.
17. The deceitful intention required for Section 417 IPC must be
from the inception. Further, the prosecution in addition should also prove
that due to the said deceit, the person, who was asked to do or omit to do
an act must have been suffered harm or injury to body or reputation.
18. In this case, Ex.P-1 letter of undertaking to marry the defacto
complaint was given during the month of November 2008. Admittedly,
A-1 has not married the defacto complainant[PW-1] and in fact, he has
married one Mahimai Vinola on 14/12/2011. In between these three
years, several events have taken place which were stated by PW-1 in her
chief examination, but not in her complaint or in her previous statement
recorded under Section 164 Cr.P.C.
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19. A-1 despite promise to marry PW-1, had married somebody
else. In the absence of any plausible explanation why he could not marry
the PW-1, the trial Court held the accused guilty of offence under
Section 417 IPC.
20. Section 417 of the Indian Penal Code reads as below:-
“S.417. Punishment of cheating:-
Whoever cheats shall be punished with
imprisonment of either description of a term
which may extend to one year, or with fine or
with both.”
21. The case of the prosecution is that PW-1 and A-1 were in love
since 2003. It is not the case of the prosecution that A-1 pretend to love
PW-1 and deceived her. The affair started in the year 2003 and continued
till A-1 joined Army in the year 2008. Till the date of executing Ex.P-1,
there is no complaint that A-1 was a fake lover. There is no evidence to
prove even thereafter A-1 fraudulently or dishonestly induced her to
consent an act which she would not have given but for the promise or
pretend to marry her and deceived PW-1. In fact, in the cross
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examination of PW-2 (the mother of PW-1), she says that when she came
to know the fact that her daughter is in love to A-1, she reprimanded her
daughter. Her daughter attempted to commit suicide and fell into the
irrigation well. She was rescued and given assurance that she will
arrange for her marriage with A-1. This part of evidence goes to show
that, when the accused and the defacto complainant were in love, the
accused had no intention of deceive the defacto complainant at least till
the time of executing Ex.P-1 or therebefore. Ex P-2 series disclose, he
was in close intimate terms with PW-1. Probable, due to some
misunderstanding surfaced between them at a later point of time might
have triggered their separation. However, there is no evidence to infer
that their intimacy was with pre-conceived intention of the accused to
cheat the defacto complainant
22. In the absence of positive evidence about the dishonest
intention to cheat, the reason for not marrying the defacto complainant
after 5 years of the written promise by itself cannot be drawn as an act of
dishonest intention from the inception.
23. For the above said reasons, this Court allows the Criminal
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Appeal. The judgement of conviction and sentence against the appellant
passed by the trial Court viz., The Sessions Court, Magalir Neethi
Mandran (Fast Track Court), Villupuram in S.C.No.183 of 2013, dated
17.03.2017 is set aside. Bail bond, if any executed by the appelant is
cancelled. Fine amount paid, if any, by the appellant/accused, may be
refunded to him.
24. In the result, this Criminal Appeal is allowed.
28.06.2022
Index:yes/no
ari
To:
1.The Sessions Judge, Magalir Neethi Mandram
(Fast Track Mahila Court), Villupuram.
2.The Inspector of Police,
Arakandanallur Police Station, Villupuram District.
Dr.G.JAYACHANDRAN,J.
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ari
Delivery Judgment made in
Crl.A.No.239 of 2017
28.06.2022
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