Palanisamy vs State By
2021 Latest Caselaw 22802 Mad

                                                                       Crl.A.Nos.165 & 552 of 2014


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 22.11.2021

                                                      CORAM:

                                  THE HONOURABLE MS.JUSTICE R.N.MANJULA

                                       Criminal Appeal Nos.165 & 552 of 2014

                     Criminal Appeal No.165 of 2014

                     Palanisamy                                   .. Appellant/Accused
                                                         Vs.

                     State by
                     Inspector of Police,
                     All Women Police Station,
                     Ariyalur,
                     Ariyalur District.
                     (Crime No.12/2009)                           .. Respondent/Complainant

PRAYER: This Criminal Appeal filed under Section 374 Cr.P.C., against the conviction and sentence passed by the learned Principal Sessions Judge, Ariyalur, Ariyalur District in SC.No.37 of 2012, by judgement dated 04.03.2014, and acquit the appellant herein from the charge.

Criminal Appeal No.552 of 2014

State by Inspector of Police,

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All Women Police Station, Ariyalur, Ariyalur District.

(Crime No.12/2009) .. Petitioner /Complainant Vs.

Palanisamy .. Respondent /Accused

PRAYER: This Criminal Appeal filed under Section 374 Cr.P.C., against the judgement of acquittal of the respondent/ accused under Sec.376 IPC passed by the learned Principal Sessions Judge, Ariyalur, Ariyalur District in S.C.No. 37 of 2012, dated 04.03.2014.

For Appellant : Mr.M.Nallathambi Legal Aid Counsel For Respondent : Mr.A.Gopinath Government Advocate (Crl.Side)

COMMON JUDGMENT

Criminal Appeal in Crl.A.No.165 of 2014 is filed by the

appellant/accused challenging the judgement of the learned Principal

Sessions Judge, Ariyalur, Ariyalur District dated 04.03.2014 made in

S.C.No.37 of 2012, wherein the accused was found guilty for the offence

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under Section 417 IPC and was sentenced to undergo one year Rigorous

Imprisonment.

Criminal Appeal in Crl.A.No.552 of 2014 has been preferred by the

State challenging the judgement of acquittal of the respondent/ accused

under Sec.376 IPC passed by the learned Principal Sessions Judge, Ariyalur,

Ariyalur District in S.C.No. 37 of 2012, dated 04.03.2014.

2. The short facts of the prosecution case are as follows:

The victim (defacto complainant) and the accused were the residents of

Puduhupalayam Village in Keelapalur Village; the accused was engaged in

charcoal work near the defacto complainant's house and developed

friendship with her; he also assured her that he would marry her; with this

intention they have been moving intimately from the month of May 2009.

On 05.07.2009, when the victim (defacto complainant) was alone in her

house, the accused went there and enticed her by promising to marry her

and then had sexual intercourse with her despite her objections. When the

parents came to know about it, they approached the accused to marry the

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victim and for which the accused refused. Thereafter a complaint (Ex.P.1)

was given to the respondent police and a case was registered by P.W.10-

P.Vani, Sub Inspector of Police. in Crime. No.12/2009 (Ex.P.5) for the

offence under Sec.417 and 376 IPC.

2.1. P.W.11-A.Rajasekhar, Inspector of Police took up the case for

investigation, went to the place of occurrence, prepared the observation

mahazar (Ex.P.2) and rough sketch (Ex.P.6). After examining the witnesses

he arrested the accused on 08.12.2009 itself and sent him for remand. He

sent both the victim and the accused for medical examination. After

obtaining the medical reports and concluding the investigation, he filed the

charge sheet against the accused for the offences under Sec.376 and 417

IPC.

2.2. The case was taken on file in S.C.No.46/2010 by the learned

Sessions Judge, Perambalur and thereafter, it was assigned to the file of the

Mahila Court, Perambalaur. When the case was pending before the Mahila

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Court, it was transferred to the file of Sessions Court, Ariyalur as per the

letter of this Court in R.O.C.No.2751/2011/G4 dated 14.03.2012 and was

renumbered as S.C.No.37/2012. After furnishing the copies of the charge

sheet and observing legal mandates, charges have been framed under

Sec.376 and 417 IPC. When questioned, the accused denied the guilt and

claimed for trial.

3. On the side of the prosecution, 11 witnesses have been

examined as P.Ws.1 to 11 and Exs.P-1 to P-8 and Ex.C.1 to C3 were

marked. On the side of the accused no witnesses were examined and no

documents were marked.

4. After concluding the trial and on considering the materials on

record, the learned trial Judge found the accused not guilty for the offence

under sec.376 IPC and found him guilty for the offence under Sec.417 IPC

and convicted and sentenced him as stated supra. Aggrieved over the same,

the accused preferred the appeal in Crl.A.No.165 of 2014 and the

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prosecution has preferred the appeal in Crl.A.No.552/2015, against

acquitting the accused from the offence under Sec.376 IPC.

5. Since both the appeals had arisen out of the same judgement,

arguments heard in common and a common judgement is passed. For the

sake of convenience, the appellant in Crl.A.No.165/2015 is referred as the

Accused and the appeallant in Crl.A.No.552/2014 is referred as

respondent/complainant.

6. Heard the submissions of Mr.M.Nallathambi, learned Legal Aid

Counsel for the Accused and Mr.A.Gopinath, Government Advocate

(Crl.Side) appearing for the respondent/State.

7. The learned counsel for the appellant submitted that there was

no intention on the part of the accused to cheat the defacto complainant and

it was at the instance of his parents that he could not marry the girl (victim).

He drew the attention of this Court to the definition of Sec.415 IPC which

defines cheating and submitted that since no motive for deceiving the victim

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could be gathered from the conduct of the accused, the learned Sessions

Judge ought not to have found the accused guilty for the offence under

Sec.417 IPC.

8. The learned Government Advocate for the State has submitted

that the learned trial Judge has rightly convicted the accused for the offence

under Sec.417 IPC; However the Court omitted to convict the accused for

the offence under Sec.376 IPC also. It is further submitted that the learned

Trial Court had not given due significance to the evidence of the victim, who

has stated about the sexual offence committed on her by the accused. By so

stating, the learned Government Advocate claimed that the accused ought to

have been punished for the offence under Sec.376 IPC. It is also brought to

the notice of the Court by the learned Government Advocate that the victim

got conceived due to the sexual offence committed on her and she delivered

a male baby and he is 10 years now. He further submitted that the DNA

report (Ex.P.8) would also prove the paternity and hence the accused should

be punished for the offence under Sec.370 IPC as well.

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9. The point for consideration is

1. Whether the finding of the learned trial Judge as to the acquittal of the accused under Section 376 IPC, basing on the material available before him is fair and proper?

2. Whether the finding of the learned trial Judge as to the conviction of the accused under Section 417 IPC, basing on the material available before him is fair and proper?

10. On perusal of the facts of the case, it is seen that the accused

and the victim were not strangers when the alleged offence took place. The

accused came into contact with the victim while he was engaged in the

charcoal work near her residence and developed an affair with her. The

victim was moving with the accused with a belief that he would marry her at

some point of time. She also stated in her evidence that the accused had

promised to marry her.

11. As per the evidence of PW.1/victim, on 05.07.2009 when she

was alone at her house, the accused came there and on a promise to marry

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he had sexual intercourse with her despite she objected. Such act was

repeated on four other occasions also. PW.1 did not inform the occurrence

immediately after the first occurrence had taken place.

12. Incidentally they were noticed by the brother of the victim and

before whom also the accused assured to marry PW-1. Only then, PW.1

revealed to her brother about the sexual acts committed by the accused. On

the assurance of marriage, they were allowed to move together. PW.1 got

perturbed when she missed her periods. Thereafter the relatives of the victim

went and held talks with the parents of the accused. The parents of the

accused refused to take the victim in marriage for the accused. Even the

accused refused to marry her by stating that he only wanted to marry his

aunt’s daughter. Thereafter the complaint (Ex.P.1) was given. Even at the

time of giving the complaint PW.1/victim was 8 months pregnant.

13. During the cross examination, PW.1 has stated that she is 20

years old. There is no dispute with regard to the age of the victim. PW.1 has

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categorically stated in her evidence that the sexual intercourse had occurred

on four occasions with her consent. Her only grievance is that the accused

failed to marry her after making her pregnant and thereby cheated her. The

family of the victim was complacent on the marriage assurance given by the

accused and allowed them to move together. The accused took advantage of

the same and had free access to the victim to repeat his sexual acts.

14. Though it might be true that PW.1 had given her consent on the

assurance of marriage, she was not under any compulsion to subject herself

to the sexual intentions of the accused. She knew well that having physical

intimacy with her lover before marriage will have its own consequence.

15. The learned Trial Judge has listed the following circumstances

in order to make it clear that the sexual acts between the victim and the

accused were only consensual sex. Some sequences of the facts and events

that have been listed by the learned trial Judge as under:

“i) The prosecutrix was 20 years of age at the time of the crime and the accused are relatives and are known to

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each other already.

ii) That the accused had been familiar and moving with the P.W.1 for quite a long time.

iii) That love and affection has developed amongst the accused and P.W.1.

iv) That the accused and P.W.1 had been engaged in long conversation with each other.

v) That the accused and P.W.1 had been meeting each other in the temple festivals.

vi) That there has been physical relationship between the accused and P.W.1 for a longer period.

vii)That P.W.1 has not chosen to reveal the affinity or the physical relationship with the accused, to her parents

viii)That the physical relationship has occurred four times in a span of two months between the P.W.1 and the accused.

ix) That immediate after coming to know about the fact of the relationship the prosecution witnesses have not chosen to prefer a complaint but they had started making the proposal of marriage.

x) Only when the accused refused to marry the PW.1 the

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complaint has been preferred.”

16. As per the definition given for rape under Sec.375 IPC, a man is

said to have committed rape only as found here under:

“Section 375 IPC:

1[375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE

AMENDMENT ”

17. The learned Government Advocate has submitted that the act

committed by the accused would fall under the 4th description (of sub clause

‘d’) of Sec.375 IPC.

“(Fourthly)—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is

another man to whom she is or believes herself to be law-fully married.”

18. As per the above description the offence is deemed to have

committed if the consent of the woman was obtained by making her to

believe that the man was her husband and she was lawfully wedded to him.

No doubt, the accused had made the victim to believe by his repeated

assurance that his friendship with her would fructify into marriage. But

PW.1 knew well that the accused is not her husband and she did not believe

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that a marriage had been performed between herself and the accused. In

fact the struggle of victim and her family was to get her married to the

accused after the victim got conceived due to the accused. So in my

appreciation, the consent given by PW.1 will not fall under the description 4

of Sec.375 IPC. Hence the accused can not be found guilty and punished for

the offence of rape. Hence I find no reason to interfere with the findings of

the trial court that the accused is not guilty for the offence under sec.376

I.P.C. Thus point No.1 is answered.

19. The learned Counsel for the accused submitted that since the

accused did not have any fraudulent intention, he had not committed an

offence of cheating. Sec.415 I.P.C defines cheating as under:

Section 415

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 or omission causes or 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

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deception within the meaning of this section. Illustrations

(a) A, by falsely pretending to be in the Civil Service, inten- tionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.

(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.

(c) A, by exhibiting to Z a false sample of an article, inten- tionally deceives Z into believing that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.

(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.

(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.

(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.

(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not

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deliver it, he does not cheat, but is liable only to a civil action for breach of contract.

(h) A intentionally deceives Z into a belief that A has performed A’s part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.

(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats.

20. The intention of deception can only be inferred from the

conduct of the accused. Admittedly the victim had delivered her person to

the accused and consented for sexual intimacy with the accused based on the

assurance of marriage. His subsequent conduct of refusing to marry her

after knowing that she got conceived of him would show that he had the

intention to deceive her and he concealed it by giving her false assurances.

Hence I find no reason to interfere with the finding of the trial court that the

accused is guilty for the offence of cheating under sec.417 I.P.C. Thus point

No.2 is answered.

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21. The sexual acts of the accused on the victim no doubt has

caused huge damage to her mental and physical integrity. She would have

suffered shame and embarrassment for having become an unwed mother for

her child. In the social situation of the victim, becoming mother without

marriage will not be taken casually and there is every possibility for the

victim to face social stigma. The act of the accused made the life of the

victim and her child miserable.

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22. The victim is said to have studied only up to 5th standard and

she is not employed anywhere. Her social and economic condition is not

conducive to maintain herself and the child. However the learned Sessions

Court has not imposed any fine or awarded any compensation to the victim.

It is probably because of the fact that the accused is not economically sound

to pay compensation to the victim. The life of the victim and her child have

to be rehabilitated. Since they are victims of crime, they deserve to be

awarded with Compensation. I feel that it is appropriate to award a sum of

Rs.5,00,000/- as compensation to be payable to the victim from the Tamil

Nadu Victim Compensation Fund.

In the result,

(i) Both the appeals are dismissed and the judgement of the learned

Principle Sessions Judge, Ariyalur, Ariyalur District in SC.No.37 of 2012,

dated 04.03.2014, is upheld.

(ii) And a compensation of Rs.5,00,000/- [Rupees Five lakhs only] is

ordered to be paid to PW.1 as compensation from the Tamil Nadu Victim

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Compensation Scheme, 2013 within 4 weeks of receipt of the copy of this

order.

22.11.2021

Index : Yes Internet: Yes Speaking / Non Speaking jrs

Copy to

1. The Principle Sessions Judge, Ariyalur, Ariyalur District.

2.The Secretary, Finance Department, Government of Tamil Nadu, Fort st. George, Chennai-09.

3. The Director, Social Welfare and Women Empowerment Department, Secretariat, Chennai-9.

4. The State Legal Service Authority , High Court of Madras, Chennai.

5. The Public Prosecutor, High Court, Madras.

6. The Inspector of Police, All Women Police Station, Ariyalur.

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7. The Record Keeper, Criminal Section, High Court, Madras.

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R.N.MANJULA, J

jrs

Crl.A.Nos.165 & 552 of 2014

22.11.2021

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