Madras High Court
Muthukumar vs The State Through on 11 August, 2021
Crl.A(MD)No.375 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A(MD)No.375 of 2015
Muthukumar : Appellant/1st Accused
Vs.
The State through,
The Inspector of Police,
All Women Police Station,
Srivaikundam,
Thoothukudi District.
(Crime No.4 of 2011) : Respondent/Complainant
PRAYER: The Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure, against the conviction and sentence dated
30.11.2015, passed in S.C.No.110 of 2015, on the file of the learned
Sessions Judge, Mahalir Neethimandram (Fast Track Mahila Court)
Thoothukudi.
For Appellant : Mr.M.S.Jeyakarthik
For Respondent : Mr.E.Antony Sahaya Prabahar
Government Advocate (Crl. side)
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Crl.A(MD)No.375 of 2015
JUDGMENT
This present criminal appeal is directed against the conviction and
sentence dated 30.11.2015, made in S.C.No.110 of 2015, on the file of the
learned Sessions Judge, Mahalir Neethimandram (Fast Track Mahila Court)
Thoothukudi.
2.The appellant is the first accused. He stood charged for the
offence under Sections 417, 376, 294(b) and 506(ii) of I.P.C. The accused
denied all the charges and opted for trial. Therefore, he was put on trial on
the charges.
3.After full-fledged trial, the learned Sessions Judge found the
accused guilty under Section 417 of I.P.C and accordingly, convicted and
sentenced to undergo one year simple imprisonment and to pay a fine of
Rs.1,000/-, in default, to undergo six months simple imprisonment. In
respect of other offences, the learned Sessions Judge acquitted him and also
acquitted the other accused. Challenging the conviction and sentence, the
appellant/first accused is before this Court with the present Criminal
Appeal.
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Crl.A(MD)No.375 of 2015
4. The case of the prosecution in brief is as follows:-
(i) PW1- Vanamari/victim girl is residing at Thoothukudi. She is
known to the accused. Both the victim girl and the first accused fell in love
with each other and the same is continued for the period of three years. The
second accused (now acquitted) is the aunt of the first accused. The third
accused (now acquitted) is the daughter of the second accused. On
05.09.2010 around 11.00 a.m when the first accused entered into the house
of PW2, he found that PW1 was alone in the house and on seeing PW1, the
first accused told to her that he would marry her and on such false promise,
he sexually assaulted the PW1. After one week from the date of said
incident, PW1 asked the accused to marry her, for which, accused refused to
marry her.
(ii) Therefore, on 11.09.2010, P.W.1 went to Kurumbur Police
Station and lodged a complaint under Ex.P.2. On receipt of the complaint,
the police attached with Kurumbur Police Station made enquiry, in which,
the first accused admitted the allegation levelled against him by P.W.1 and
P.W.2. He requested three more months for marrying P.W.1. In respect of
the enquiry, a Muchalika has been prepared and the same was attested by
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Crl.A(MD)No.375 of 2015
the mother of the victim girl, her uncle and the first accused. Thereafter, till
the month of February 2011, the first accused did not fulfil his assurance,
which was given before the Police Station. Hence, on 05.02.2011, P.W.1
alone went to the house of the first accused and asked him as to why he did
not marry her even after three months. At that time, the other accused in
this case [now acquitted] scolded her in filthy language and chased her
away. Therefore, without any alternative, on 22.02.2011 P.W.1 lodged a
complaint against the accused and the same has been marked before the trial
Court as Ex.P.3.
(iii) On receipt of the said complaint, P.W.10 – Ravimathi, the
then Sub-Inspector of Police, Nanguneri Police Station, registered a case
against the accused in Crime No.4 of 2011 under Sections 294(b), 376 and
506(ii) I.P.C. The printed F.I.R. has been marked as Ex.P.9.
(iv) After registration of the case, P.W.12 – Sureshkumar, the then
Inspector of Police, Srivaikuntam Police Station, took up the case for
investigation and on the same day around 01.00 p.m., he visited the scene of
occurrence, in the presence of P.W.4 – Aathiparasakthi and P.W.5 –
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Crl.A(MD)No.375 of 2015
Senthamarai Kannan, he prepared Observation Mahazar under Ex.P.4. He
drew the Rough Sketch and the same has been marked as Ex.P.10. He
asked the Women Sub-Inspector of Police to examine P.W.1. He sent a
requisition to the learned Judicial Magistrate, Srivaikuntam, seeking
permission to conduct medical examination of the victim girl Vanamari.
Thereafter, through P.W.8 – Kalaiselvi, Police Constable, P.W.1 / victim
girl had been produced before P.W.6 – Dr.Sasikala, who attached with
Rajaji Government Hospital, Madurai, for medical examination. On
23.02.2011, vide reference [Ex.P.5] issued by the learned Judicial
Magistrate, Dr.Sasikala examined the victim girl and opined as follows:-
''(i) The victim girl was conscious, oriented
and the breast were normal;
(ii) There was no external injury and hymen
was not intact and she was in periods.''
After examination, she issued an Accident Register copy under Ex.P.6.
(v) Similarly, P.W.12 sent a requisition to the learned Judicial
Magistrate to conduct medical examination on the first accused. In the view
of the said request, the learned Judicial Magistrate issued reference.
Thereafter, P.W.7 – Dr.Kingston Xavier, the then Assistant Surgeon, E.S.I.
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Crl.A(MD)No.375 of 2015
Hospital, Karungal, Kanniyakumari District, on 23.02.2011 at 01.00 p.m.,
examined the first accused and issued a Certificate under Ex.P.8 stating that
the first accused is a potent male.
(vi) In continuation of investigation, P.W.12 - Sureshkumar
examined the witnesses and recorded the statements. Since he got transfer
from the said post, his successor P.W.13 – Padmanabapillai, the then
Inspector of Police, Srivaikuntam, conducted further investigation and filed
final report against the accused alleging that they are liable to be convicted
under Sections 417, 376, 294(b) and 506(ii) I.P.C.
5.From the above materials, the learned Sessions Judge [Fast
Track Mahila Court], Thoothukudi, framed charges against the first accused
for the offences under Sections 417, 376, 294(b) and 506(ii) I.P.C and
against Accused Nos.2 and 3 under Sections 294(b) and 506(ii) I.P.C. The
accused denied the same as false and opted for trial. Hence, in order to
prove their case, on the side of the prosecution, 13 witnesses have been
examined as P.W.1 to P.W.13 and 10 documents were marked as Exs.P.1 to
P.10.
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Crl.A(MD)No.375 of 2015
(i) Out of the said witnesses, P.W.1 – Vanamari is the victim in
the alleged occurrence. She speaks about the occurrence, particularly, in
respect of love affairs having by her with the first accused and about the
false promise made by the first accused. She further speaks about the sexual
assault committed by the first accused and about lodging of complaints
before the Police Station on 11.09.2010 and 22.02.2011.
(ii) P.W.2 – Petchiammal is the mother of the victim girl. She has
stated that during the relevant point of time, she saw P.W.1 along with the
first accused in abnormal position. She has further stated about the attempt
made by her for solemnisation of marriage between P.W.1 and the first
accused and about the demand of dowry made by the other accused [now
acquitted]. According to her, the first accused had breached his promise and
refused to marry P.W.1. She has also stated that during the time of
occurrence, the first accused assured to marry P.W.1 and thereafter, he did
not comply with the same.
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Crl.A(MD)No.375 of 2015
(iii) P.W.4 - Aathiparasakthi and P.W.5 – Senthamarai Kannan
speak about the preparation of Observation Mahazar and Rough Sketch by
the Investigation Officer.
(iv) P.W.6 – Dr.Sasikala speaks about the examination of victim
girl / P.W.1. She claims that when she had examined the victim girl, the
victim girl has stated before her as during the relevant point of time, she had
sexual intercourse along with one known person in the month of September,
2010 on her own volition.
(v) P.W.7 – Dr.Kingston Xavier speaks about the examination of
the accused.
(vi) P.W.8 – Kalaiselvi and P.W.9 – Muthukrishnan, who are the
Police persons, speak about the production of the victim girl and the
accused respectively, before the Doctors for medical examination.
(vii) P.W.10 – Ravimathi deposed before the trial Court as on
22.02.2011, she received a complaint from P.W.1 and registered the case
against the accused.
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Crl.A(MD)No.375 of 2015
(viii) P.W.11 – Mariappan, the then Sub-Inspector of Police,
Thalavaipuram Police Station, claims that on 11.09.2010 P.W.1 appeared
before him and lodged a complaint against the accused. He further states
that during enquiry, the accused assured to marry P.W.1 within a period of
three months and for which, a Muchalika has been executed and the same
was attested by the mother of the victim girl, her uncle and the first accused.
(ix) P.W.12 – Sureshkumar, the then Inspector of Police, speaks
about the process of investigation and about the filing of final report.
6.When the above incriminating materials were put to the accused
under Section 313 Cr.P.C., they denied the same as false. However, they did
not choose to examine any witness nor mark any documents on their side.
7.Having considered all the above, the learned Sessions Judge
[Fast Track Mahila Court], Thoothukudi, found the first accused guilty for
the offence under Section 417 of I.P.C. and sentenced him as stated in
Paragraph 3 of this judgment. However, the learned Sessions Judge [Fast
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Crl.A(MD)No.375 of 2015
Track Mahila Court], Thoothukudi, acquitted the first accused under
Sections 376, 294(b) and 506(ii) I.P.C. and the other accused under Sections
294 (b) and 506 (ii) I.P.C.
8.Aggrieved over the said conviction and sentence, the first
accused is before this Court with this criminal appeal.
9.The first and foremost contention raised by the learned counsel
appearing for the appellant is that the evidence given by the prosecution
witnesses did not reveal the fact that at the time of occurrence, the first
accused herein did not made a false promise, due to circumstantial occasion,
he has not married the P.W.1. The trial Court without considering the said
aspect wrongly came to the conclusion that the first accused was guilty
under Section 417 I.P.C.
10.Per contra, the learned Government Advocate (Criminal side)
appearing for the State contended that the assurance given by the first
accused before P.W.11 – Mariappan was not complied with by him,
therefore, the said breach of promise committed by the accused would
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Crl.A(MD)No.375 of 2015
amount to false promise and hence, the interference of this Court in the
findings arrived at by the trial Court does not require.
11.By considering the said submissions with the relevant records,
it is not in dispute that before registration of the case, on 11.09.2019 P.W.1
herein lodged a complaint before P.W.11 under Ex.P.1 and thereafter, on
enquiry, the first accused gave a false promise saying that he would go to
marry P.W.1 within three months. Subsequent to that, the same has not
been fulfilled. Accordingly, the first accused breached the promise. In the
said circumstance, it is necessary to find out whether the non-fulfilment of
assurance given by the first accused would amount to false promise. In this
regard, while at the time of giving evidence as P.W.2, the mother of the
victim girl, has stated as follows:-
''1tJ vjphp jpUkzk;
nra;Jnfhs;tjhfj;jhd; nrhd;dhH. Mdhy; 2> 3
vjphpfs; rz;il Nghl;lhHfs;. mjdhy; 1tJ vjphp
fl;lkhl;Nld; vd;W nrhy;yptpl;hH.''
12.In the said circumstance, it would be relevant to see the
judgment of this Court, dated 04.06.2020, made in Crl.A.No.376 of 2020
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Crl.A(MD)No.375 of 2015
[V.Kotteeswaran Vs. The State], wherein it has been held as follows:-
''?16. ....
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. ? ''
Now, applying the ratio laid down in the above judgment herein also, in
view of the evidence given by P.W.2 only the circumstance found around
the first accused prevented him from marrying P.W.1. Therefore, it cannot
be said that during the relevant point of time, the first accused made a false
promise to P.W.1.
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Crl.A(MD)No.375 of 2015
13.Yet another thing, which is necessary for deciding this appeal
is that, while at the time of examining the victim girl, she told to the Doctor
that on her own volition, she had sexual intercourse with known person
nearly about 10 times. Further, in her cross-examination, P.W.1 had
categorically stated that she on her own volition, had sexual intercourse
with the first accused. Therefore, as rightly pointed out by the learned
counsel appearing for the appellant, here is a case, the act committed by
P.W.1 is consensual in nature.
14.In a case of Md.Mahasin SK. Vs. Sayeda Khatun Bibi and
another reported in 2005 Cri.L.J. 3162, the High Court of Calcutta has
held as follows:-
''8. .... It was held by this Court that even if it
is assumed that she agreed to sexual intercourse with
the accused on account of promise of the marriage, the
charge under Section 417 could not be substantiated in
the absence of any evidence to show that the said
representation by the accused was false to the
knowledge of the accused at the time it was made. This
Court further held that where the charge is of cheating,
as in this case rests upon a representation, which is
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Crl.A(MD)No.375 of 2015
false and which relates not to a 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.
Accordingly, this Court set aside the conviction in the
appeal.
9. The facts of Rajkumar Mondal (1992 Cal
Cri LR 267) (supra) was also similar and there the
victim was working as maid servant in the house of the
appellant when the appellant committed sexual
intercourse with her and when she disclosed that she
would inform everybody about the incident the
appellant assured to marry her but ultimately did not
marry her. The learned trial Court held the accused
guilty under Section 417 of I. P. C. and not guilty under
Section 376 of I. P. C. In the appeal a Division Bench
of this Court set aside the conviction observing that
there was no ingredient of cheating.''
Therefore, applying the principles reiterated in the above referred judgment
to the present case on hand, herein also, after making assurance to marry
P.W.1, the first accused did not marry her. Therefore, it cannot be held that
the first accused is guilty for the offence under Section 417 I.P.C.
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Crl.A(MD)No.375 of 2015
15.One another occasion, which raised a doubt in the prosecution
case is that, only after lapse of four years, the complaint pertains to the
occurrence, has been given by P.W.1. Though it was stated by P.W.1, as
she became pregnant, in respect of proving the said fact, she has not
produced any substantial evidence. Further, in respect of pregnancy, P.W.2,
who is the mother of P.W.1, did not say as her daughter became conceived
and thereafter, the same was aborted. The Medical Officer, who examined
P.W.1, has also not stated about the resemblance of pregnancy found in the
body of P.W.1. Thus, it is seen that the evidence of Prosecutrix is not clear
and specific and the same is suffering from material inconsistencies and
contradictions with the other evidence on record. The discrepancy in the
evidence of the Prosecutrix is incompatible with credibility of her version
and hence, her version has to be out rightly rejected. In the absence of any
corroboration, the evidence of the Prosecutrix has to be rejected.
16.As far as the offence under Section 417 I.P.C. is concerned, in
the complaint, the victim girl had stated that she and the first accused were
working in the same Company and that they were having a close
relationship with each other for a period of three years and that she was
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Crl.A(MD)No.375 of 2015
aged about 21 years and the first accused was aged about 26 years at the
time of occurrence and due to the relationship, the appellant/first accused
had stated to have told her that he would marry her and had sexual
intercourse with several times.
17.On going through the entire evidence, no material was placed
on record to show that the appellant / first accused either on the inducement
or on false promise with dishonest intention cheated the victim girl and
committed sexual intercourse with her. Hence, I am of the view that the
evidence put forth by the prosecution witnesses does not attract the
ingredients, which are necessary to convict the first accused under Section
417 I.P.C. The trial Court without considering the same, convicted the first
accused. Hence, the conviction and sentence imposed by the trial Court is
liable to be set aside.
18.In the result, this Criminal Appeal is allowed and the
conviction and sentence dated 30.11.2015, imposed in S.C.No.110 of 2015,
by the learned Sessions Judge [Fast Track Mahila Court], Thoothukudi, is
set aside and the appellant/first accused is acquitted from the charges. The
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fine amount, if any, paid by him shall be refunded to him. Bail bond, if any,
executed by the appellant shall stand cancelled.
11.08.2021
Index : Yes/No
Internet : Yes/No
cp/smn2
To
1.The Sessions Judge,
Mahalir Neethimandram (Fast Track Mahila Court),
Thoothukudi.
2.The Inspector of Police,
All Women Police Station,
Srivaikundam,
Thoothukudi District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Criminal Records,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A(MD)No.375 of 2015
R.PONGIAPPAN, J.
cp/smn2
Crl.A(MD)No.375 of 2015
11.08.2021
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