Rajiv Gandhi vs The State Represented By
2021 Latest Caselaw 5551 Mad

                                                                        CRL.A.No137 of 2021

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                            RESERVED ON :14.09.2021

                                          PRONOUNCED ON: 02.12.2021

                                                   CORAM:

                                    THE HON'BLE MR.JUSTICE P.VELMURUGAN

                                              CRL.A.No.137 of 2021


                     Rajiv Gandhi                                    ... Appellant/Accused


                                                   Vs.


                     The State represented by
                     The Inspector of Police,
                     All Women Police Station,
                     Kottakuppam,
                     In Crime No.5 of 2012                           ... Respondent

                     PRAYER: Criminal Appeal filed under Section 374 (2) of the Code of
                     Criminal Procedure, to set aside the order of conviction an sentence
                     passed in S.C.No.20 of 2013 by the Court of Sessions Judge, Magalir
                     Neethi Mandram, (Fast Track Mahila Court), Villupuram, dated
                     03.03.2021.




                     Page No.1 of 17


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                                                                             CRL.A.No137 of 2021

                                       For Appellant    : Mr.Muralidharan
                                                          for M/s.S.Suresh

                                       For Respondent   : Mr.S.Sugendran
                                                          Government Advocate, (Criminal Side)

                                                     JUDGMENT

This Criminal Appeal has been filed to set aside the order of

conviction of the appellant/accused in S.C.No.20 of 2013 dated

03.03.2021 by the learned Sessions Judge, Magalir Neethi Mandram,

(Fast Track Mahila Court), Villupuram.

2.The respondent Police has registered a case against the

appellant/accused in Crime No.5 of 2012 for the offence under Sections

376 and 417 IPC. After completing the investigation, the respondent

Police filed a charge sheet before the learned Judicial Magistrate No.II,

Thindivanam. The learned Magistrate taken cognizance of the charge

sheet in P.R.C.No.28 of 2012 and committed the case diary, since the

offense is exclusively triable by the Court of Session and the Case was

committed to the Court of Session. After completing the formalities, the

Principal Sessions Judge taken the case on file in S.C.No.20 of 2012 and

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the case was made over to the learned Principal Assistant Sessions Judge.

Subsequently, the case was transferred to the Sessions Judge, Magalir

Neethi Mandram, (Fast Track Mahila Court), Villupuram, since the

offence is against the women. The learned Special Judge, after

completing the formalities, framed the charge as against the

appellant/accused for the offence under Sections 376(1) IPC.

3.After framing charges and completing the formalities, during

trial, in order to prove the case on the side of the prosecution, totally 11

witnesses were examined as P.Ws.1 to 11 and 7 documents were marked

as Exs.P.1 to 7 and no material object was marked. After examining all

the prosecution witnesses, incriminating circumstances culled out from

the evidence of prosecution witnesses put before the appellant/accused,

by questioning under section 313 Cr.P.C, he denied the same as false and

pleaded not guilty. On the side of the defence, two witnesses were

examined as P.Ws.1 and 2 and no document was marked.

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4.On completion of trial, hearing the arguments advanced on either

side and considered the materials, on conclusion of trial, found guilty of

the appellant/accused for the offence punishable under section 376 IPC

convicted and sentenced to undergo rigorous imprisonment for a period of

7 years and to pay a fine of Rs.3,00,000/-(Rupees Three Lakhs only) in

default, to undergo simple imprisonment for further period of 6 months.

From the above mentioned fine amount, a sum of Rs.1,50,000/- is

ordered to be given to the child as compensation under Section 357(1)

Cr.P.C.

5.Challenging the said judgment of conviction and sentence passed

by the learned Sessions Judge, Magalir Neethi Mandram, (Fast Track

Mahila Court), Villupuram, the appellant/accused has filed the present

Criminal Appeal before this Court.

6.The learned counsel appearing for the appellant/accused would

submit that the prosecution has not proved its case beyond all reasonable

doubt and the conviction was made only based on the presumption and

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conjunction. Even the material shows that the victim has mentioned the

name of three persons before the Panchayath and subsequently, after

much deliberation, the victim gave a complaint against the appellant

alone. The appellant/accused has not committed any offence and due to

enmity, a false case has been foisted against him and the prosecution has

failed to prove the case. Even otherwise, the victim herself has stated that

she gave consent for sexual intercourse on several times with the

appellant/accused. Therefore, the offence under Section 375 IPC would

not attract and hence, the conviction for the offence under Section 376

IPC is erroneous.

7.Even on the side of the defence, two witnesses were examined

and they have clearly spoken about the fact that the victim mentioned the

name of three persons before the Panchayath, but she gave complaint

only against the appellant/accused. The trial Court has failed to consider

the materials that there is no proof to show that the appellant had

intimacy with the victim and he is the only person responsible for the

victim's pregnancy. Though the medical examination conducted by the

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Doctor on the victim has clearly opined that the victim is 31 to 32 weeks

pregnancy, the prosecution has failed to take any steps, either during

pregnancy or after gave birth to child, for DNA test, in order to prove that

the appellant had sexual intercourse with the victim. The

appellant/accused is the biological father of the child who born through

the victim. The trial Court suo motu should have ordered for DNA test

and having failed to do the same, had erroneously convicted the

appellant/accused for the offence under Section 376 IPC, without any

material.

8.It is a settled proposition of law that the prosecution has to prove

its case beyond all reasonable doubts and in this case, there are material

contradictions between the evidence and the prosecution witness and

there are lacunae on the pat of the investigation. During the pendency of

the case, the victim died and there was no opportunity to examine the

victim. Merely based on the complaint given by the victim and the

evidence of the parents of the victim, the trial Court has wrongly come to

the conclusion that the prosecution has proved its case beyond all

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reasonable doubt. Therefore, the judgment of the trial Court is liable to be

set aside and the appeal may be allowed.

9.The learned Government Advocate (Crl.side) appearing for the

State would submit that the victim and the appellant/accused both are

living in the same village and while grazing the cattle, the

appellant/accused approached the victim on several times by giving false

assurance that he would marry her and on that pretext, he got the consent

of the victim and had intimacy with her and had physical relationship

with her on several time. As the victim got pregnant and gave birth to

child, she insisted the appellant/accused to marry her and the

appellant/accused refused to marry her and therefore, she made a

complaint before Panchayath. Since the Panchayathdars have not taken

any effective steps to settle the issue, the victim made a complaint before

the respondent Police. During the pendency of the investigation, the

victim had committed suicide and died and therefore, she could not be

examined before the trial Court as a witness.

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10.Based on the complaint given by the victim, the respondent

Police had investigated the matter. P.W.1 and P.W.2 are the parents of the

victim and P.W.3 is the bother of the victim and they have clearly deposed

that after coming to know that the victim got pregnant due to illegal

intimacy with the appellant/accused, they approached the Panchayath.

Since the Panchayath has refused to settle the issue, she made a

complaint before the respondent Police. Even in the evidence of

Doctor/P.W.7, who has examined the victim, has given her opinion that

the victim had intimacy with the known person, due to which, she got

pregnant of 31 to 32 weeks foetus has been formed. It is further stated

that she detects the heartbeats of the child is normal and to find out the

age of the victim, she was also referred to Radiology Test. From the

complaint filed by the victim and the evidence of P.Ws.1 to 3 and P.W.7,

the trial Court has rightly convicted that even though the victim gave

consent for sexual intercourse, by giving false assurance that he would

marry her and obtained her consent and therefore, the consent obtained

by misrepresentation or by false promise would amount to rape, which is

punishable under Section 376 IPC. The trial Court, has rightly

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appreciated the entire evidence and found that the evidence of defence is

not believable on the ground that it is only in order to escape from the

clutches of law. They object to the defence witness, which is not relevant

to discharge the case and mere bald evidence is not enough to disbelieve

the case of the prosecution. Without any material substance, the defence

taken by the appellant is not acceptable. The trial Court has rightly

rejected the evidence of the appellant/accused and even the prosecution

has proved its case beyond all reasonable doubt and convicted the

appellant/accused. Therefore, this Court does not warrant any

interference in the judgment of the trial Court.

11.Heard Mr.Muralidharan, learned counsel appearing for the

appellant/accused and M.S.Sugendran, learned Government Advocate

(Crl.side) appearing for the respondent.

12.The case of the prosecution is that the victim while grazing the

cattle, the appellant/accused approached her by giving false assurance

that he would marry her, had physical relationship with her on several

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times, due to which, the victim got pregnant. The victim had insisted the

appellant/accused to marry her and the appellant/accused refused to

marry her. Therefore, she approached the Panchayath and the parents of

the appellant/accused and they did not properly respond. Hence, the

victim lodged a complaint before the respondent Police against the

appellant/accused.

13.The appellate Court is the final Court of fact finding and it has

to re-appreciate the entire evidence and give an independent finding.

14.In order to substantiate the charges framed before the trial court

against the appellant/accused on the side of the prosecution, totally 11

witnesses were examined and 7 documents were marked. In this case,

the victim was not examined as a witness, since she had committed

suicide and died during the pendency of the investigation. Therefore, the

respondent Police also registered a case as against the appellant/accused

for the offence under Section 306 IPC, for abatement and the same is

pending for investigation. Therefore, there is no dispute about the death

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of the victim, after giving complaint, which was marked as Ex.P.5, in

which, she has stated that the appellant/accused and the victim are in the

same village and while grazing the cattle, the appellant/accused

approached the victim by giving false assurance that he would marry her

and obtained her consent and had physical relationship with her on

several times, due to which, she got pregnant. Therefore, she insisted the

appellant/accused to marry her. Since the family members of the

appellant/accused did not respond to the words of the victim and her

family members, they approached the panchayath and on the advise of

the Panchayath, the victim gave a complaint before the respondent Police

for taking necessary action. Though the case was initially registered for

the offence under Sections 417 and 376 IPC, the trial Court framed the

charge against the appellant/accused only for the offence under Section

376 IPC. In order to substantiate the charge framed against the appellant,

since the victim already died before commencement of trial, it was not

possible for the prosecution to make the victim to let in evidence.

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15.The father of the victim was examined as P.W.1, and he deposed

that he has three sons and one daughter viz., Suganthi, who is the victim

in this case. The appellant/accused by giving false promise to marry her

and by showering lovable words, had obtained the consent of the victim

and had physical relationship with her on several times and due to which,

she got pregnant. After coming to know about that, he approached the

appellant's family and they have refused to accept the victim and

therefore, he had complained before the Panchayath. Before the

Panchayath, the appellant/accused denied that he had made false promise

and had sexual intercourse with the victim. Hence, the victim gave a

complaint before the respondent police. After giving birth to child, the

victim died by committing suicide.

16.P.W.2-mother of the victim, who has corroborated the evidence

of P.W.1. P.W.3- brother of the victim and he has also corroborated the

evidence of P.W.1 and P.W.2. P.W.7-Doctor, who conducted the medical

examination on the victim, has deposed that the victim was subjected to

penetrative sexual assault and became pregnant. The victim was not

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examined in this case, due to inability. Two types of defence has been

taken by the appellant/accused. One is that he has not committed any

sexual assault upon the victim and before the Panchayath, she mentioned

the name of three persons and gave a complaint before the police only

against the appellant/accused and yet another defence is that with the

consent of the victim, the appellant/accused had sexual intercourse and

therefore, the offence of rape would not be attracted and even otherwise,

mere promise to marry and failed to marry the victim, has also not attract

the ingredients of offence of rape.

17.A complete reading of the complaint/Ex.P.5 and the evidence of

P.W.1 to 3 and P.W.8 would reveal that the prosecution has proved its

case. The evidence on the side of the prosecution is cogent and consistent

and there is no reason to disbelieve the same. The defence taken by the

appellant is only bald in nature and without any basis or substance. The

victim, before the Panchayath, had mentioned the name of three persons,

but the complaint was given only against the appellant/accused. The

President of the Panchayath was not examined by the defence. P.W.1 has

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stated that even the Panchayath President is the uncle of the appellant, so

that he has not given proper answer. Therefore, in the absence of

examination of the President of Panchayath, the defence taken by the

appellant cannot be accepted. Further, even assuming that the victim

informed the name of the three persons, who alleged to have intimacy

with her, before the Panchayath, the name of the appellant was

mentioned in the complaint. She made a complaint/Ex.P.5 before the

respondent Police that the appellant/accused promised to marry her and

had intimacy with her and subsequently she became pregnant and

thereafter, he refused to marry her and therefore, she approached the

Panchayath and subsequently, gave a complaint. The prosecution had

failed to take a steps for DNA Test to prove the paternity of the child and

once it is proved that the appellant had intimacy with the victim, by

giving false promise to marry her and subsequently refused to marry her

shows that the appellant obtained her consent by misconception and

therefore, the act committed by the appellant/accused is termed to be a

'rape' coming under the offence under Section 375 IPC.

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18.Upon reading of the Sections 375 and 90 IPC and also the

evidence of P.Ws.1 to 3 and 8, and Ex.P.5 and the medical report/Ex.P.3,

the act committed by the appellant/accused would fall under Section 375

IPC, which is punishable under Section 376 IPC. If the appellant/accused

by giving false promise to marry her and obtained her consent and had

physical relationship by misrepresentation or misconception, the act

committed by the appellant is an offence punishable under Section 376

IPC. Even though DNA test has not been taken and it is a lapse on the

part of the prosecution and mere lapse on the pat of the prosecution may

not be a sole ground to disallow the evidence of the prosecution witness.

It is not the case whether the appellant/accused is the biological father of

the child born to the victim or not. Therefore, mere non-conducting DNA

test, may not be a sole ground to disbelieve the case of the prosecution.

19.Considering the facts and circumstances of the case and also the

material evidence of the prosecution witnesses viz., P.Ws.1 to 3 and 8 and

Ex.P.3 and Ex.P.5, this Court finds that the appellant/accused has

committed the offence and the prosecution has proved its case beyond all

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reasonable doubt and substantiated the charge. Therefore, this Court does

not find any merit in the appeal and the same is liable to be dismissed.

Accordingly, the Criminal Appeal stands dismissed.

02.12.2021

Index: Yes/No Internet: Yes/No Ns

To

1.The Sessions Judge, Magalir Neethi Mandram, (Fast Track Mahila Court), Villupuram,

2.The Inspector of Police, All Women Police Station, Kottakuppam,

3. The Public Prosecutor, Madras High Court, Madras.

P.VELMURUGAN, J.

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Ns

Pre-Delivery Judgment in CRL.A.No.137 of 2021

02.12.2021

https://www.mhc.tn.gov.in/judis