Arivazhagan vs State Through
2021 Latest Caselaw 18210 Mad

                                                                                  Crl.A.(MD)No.335 of 2015




                              BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT


                                                    DATED : 06.09.2021

                                                         CORAM:

                                   THE HONOURABLE MR.JUSTICE R.PONGIAPPAN

                                              Crl.A.(MD)No.335 of 2015



                     Arivazhagan, S/o.Selvam                       : Appellant/Accused No.1
                                                           Vs.

                     State through
                     The Inspector of Police,
                     All Women Police Station,
                     Alangudi in-charge Karampakudi Police Station,
                     Pudukottai District.
                     (Crime No.291 of 2010)                   : Respondent/Complainant


                     PRAYER: This Criminal Appeal is filed under Section 374 of the Code of
                     Criminal Procedure, to call for the entire records connected with judgment
                     dated 12.10.2015, made in S.C.No.46 of 2013 on the file of the Mahila
                     Court, Pudukkottai, set aside the same and consequently, acquit the
                     appellant.
                                    For Appellant            : Mr.R.Anand
                                                               for Mr.R.Pon Karthikeyan

                                    For Respondent           : Mr.M.Muthumanikkam
                                                               Government Advocate (Crl. side)


                     1/18
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                                                                                    Crl.A.(MD)No.335 of 2015




                                                     JUDGMENT

This Criminal Appeal is directed against the conviction and sentence

dated 12.10.2015, passed in S.C.No.46 of 2013 on the file of the learned

Sessions Judge, Mahila Court, Pudukkottai.

2.The other accused are brother, brother's wife and father of the

appellant/first accused. Before the trial Court, the appellant/first accused

[hereinafter called as ''the accused''] stood charged for the offence under

Sections 294(b), 506(ii), 417, 420 and 376 r/w. 90 I.P.C. The other accused

(now acquitted) have been charged for the offence under Sections 294(b),

506(ii), 417 and 420 I.P.C.

3.After full-fledged trial, the learned Sessions Judge, Mahila Court,

Pudukkottai, found the accused guilty under Section 420 I.P.C., convicted

and sentenced to undergo rigorous imprisonment for five years and to pay a

fine of Rs.3,000/-, in default, to undergo simple imprisonment for three

months. In respect of other charges framed against the all accused, the trial

Court acquitted them.

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4.Challenging the said conviction and sentence dated 12.10.2015, the

accused is before this Court with this Criminal Appeal.

5.The case of the prosecution is as follows:-

(i) P.W.1 is the victim girl. The accused is her uncle. While

P.W.1 was studying in 12th Standard, the accused came to the house of

P.W.1 and helped her for preparing the record note. One such a time, when

the record note was given to the accused, after completing the work, the

same has been returned by the accused with Rs.10/-. In respect of the same,

P.W.1 questioned the accused as to why he kept Rs.10/- in the record note,

for which, the accused would state that he fall in love with P.W.1. Further,

he would submit before P.W.1 that if the said proposal is not accepted by

her, he would commit suicide. Thereafter, the accused herein regularly

came to the house of P.W.1 and helped her for purchasing domestic needs.

In the year 2009, after ten days from the Deepavali festival, by promising to

marry her, the accused invited P.W.1 for sexual intercourse. Since P.W.1

refused for the same, the accused by putting his hand on her head made a

promise as he would marry her. Thereafter, he had sexual intercourse with

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her, hence, P.W.1 had become pregnant. When the same was informed to

the accused, he threatened P.W.1 alleging that if the same has been

disclosed to anybody, he would commit suicide. Further, he insisted her to

abort the fetus. When the accused compelled P.W.1 to abort the fetus by

saying that after return from Singapore, definitely he would marry her, the

other accused had also in support of the promise made by the accused.

(ii) After the promise made by the accused, the accused, P.W.1, her

grandmother P.W.8 – Uma, P.W.9 - Kalaimani and P.W.2 – Amutha all are

went to the hospital situated at Pattukkottai, wherein the Doctor refused to

abort the fetus, hence, all were went to Dhanalakshmi Hospital, wherein

P.W.11 – Dhanalakshmi had aborted the fetus.

(iii) After abortion, P.W.11 handed over the fetus along with Red

colour T-shirt and brown colour drawer and in turn, the same was buried on

the backside of P.W.1's house.

(iv) On 16.07.2010, around 07.30 hours, when P.W.1 went to the

house of the accused and asked him to marry her, the other accused, who

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present there, abused her in filthy language. After the said incident, P.W.1

consumed poison, for which, she has taken treatment in a hospital run by

P.W.12-Dr.Rajendran. Thereafter only, she lodged a complaint before the

All Women Police Station, Alangudi, under Ex.P.1.

(v) After receipt of the said complaint, one Tmt.Kalaiselvi, the then

Head Constable assigned C.S.R. number and thereafter, she placed the said

complaint before P.W.25 – Tmt.Kavitha, for enquiry.

(vi) After enquiry, on 17.08.2010, P.W.25 - Tmt.Kavitha, the then

Sub-Inspector of Police, registered a case against the accused in Crime No.

291 of 2010, for the offence under Sections 417 and 420 I.P.C. The printed

F.I.R. is marked as Ex.P.1.

(vii) After registration of the case, P.W.26 – Balamurugan, the then

Inspector of Police, All Women Police Station, took up the same for

investigation. He examined the witnesses and recorded their statements.

On 18.09.2010, he altered the Sections of law under Ex.P.10 as 417, 420,

294(b) and 506(i) IPC. On 28.08.2010, he sent a letter to P.W.22-

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Venkatasubramanian, the then Tahsildar, Karampakudi, for recovering the

fetus, which was buried in the house of P.W.1.

(viii) On 03.09.2010 in the presence of P.W.22 – Venkata

Subramanian, P.W.10 – Subbulakshmi, the then Village Administrative

Officer, P.W.14 – Dr.Jansi Rani and P.W.15 – Chellamani, the then Police

Constable, P.W.26, who is the Investigating Officer, recovered M.O.1 to

M.O.3.

(ix) In continuation of investigation, on 04.09.2010 around 09.00

a.m., near Karampakudi Bus Stand, P.W.26 arrested the fourth accused.

Thereafter, since he got transfer, he handed over the case records to P.W.27

– Meenakshi, for further investigation.

(x) P.W.27 – Meenakshi, the then Inspector of Police, All Women

Police Station, conducted the investigation and on 16.12.2011 she submitted

an application before the learned Judicial Magistrate, Alangudi, seeking

permission to conduct medical examination on the victim girl as well as to

the accused. In turn, in view of the proceedings issued by the learned

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Magistrate, P.W.19 – Dr.Malathi attached with Raniyar Hospital,

Pudukkottai, on 26.06.2012 examined the victim girl and issued a certificate

under Ex.P.3, as there was a symptom of abortion on P.W.1.

(xi) Similarly, P.W.23 – Dr.Ramalatha and P.W.24-Dr.Sathish

examined the accused, issued age certificate to the accused as the age of the

accused is around 26 years. In this regard, the certificate issued by P.W.23

was marked as Ex.P.6. Further, P.W.24 issued a certificate under Ex.P.8

stating that there was no symptom found on the body of the accused that he

is incapable of performing sexual intercourse. The age certificate issued by

P.W.23 in respect of the victim girl was marked as Ex.P.7. In the said

certificate, it has been stated that the age of P.W.1 was around 21 years.

(xii) In continuation of investigation, through P.W.22 Tahsildar,

Karampakudi, P.W.27 forwarded M.O.1 to M.O.3 for chemical

examination. In turn, on receipt of the material objects, P.W.21 – Jeya, the

Scientific Assistant, Forensic Science Department, Trichy, examined the

same and issued a report under Ex.P.5 stating that no blood is detected in

M.O.1 to M.O.3. After receipt of the said certificate, P.W.27 examined the

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Doctors and recorded their statements. Finally, after concluding

investigation, he filed a final report that all the accused are liable to be

convicted under Sections 90, 417, 420 and 376 I.P.C. r/w. Section 109

I.P.C.

6.From the above materials, the learned trial Judge framed charges

against the accused under Sections 376 r/w. Section 90 I.P.C. and also

framed charges against the remaining accused under Sections 294(b),

506(ii), 417 and 420 I.P.C. All the accused denied the same as false and

opted for trial. Hence, they were put on trial.

7.During the course of trial proceedings, in order to prove their case,

on the side of the prosecution, 27 witnesses were examined as P.W.1 to

P.W.27 and 10 documents were exhibited as Ex.P.1 to Ex.P.10, besides

three material objects [M.O.1 to M.O.3].

(i) Out of the said witnesses, P.W.1, who is the victim girl, narrated

the occurrence as alleged by the prosecution.

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(ii) P.W.2 – Amutha, who is the cousin sister of P.W.1, claims that

during the relevant point of time, in Dhanalakshmi Hospital, after abortion,

the fetus of P.W.1 was handed over to them.

(iii) P.W.3 – Maheswari, who is the resident of the same Village

claims that due to the reason that the first accused refused to marry P.W.1,

she consumed poison and took treatment.

(iv) P.W.4 – Devi gave evidence that P.W.1 told to her about the

promise made by the accused and about the abuse made by the other

accused.

(v) P.W.5 – Thenarasu, P.W.6 – Ravichandran and P.W.7 –

Chandrasekaran, who are the relatives of P.W.1 speaks about the occurrence

as that of the evidence given by P.W.3.

(vi) P.W.8 – Uma and P.W.9 – Kalaimani, who are the alleged

witnesses, before the trial Court did not support the case of prosecution.

Hence, both of them were treated as hostile witnesses.

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(vii) P.W.10 – Subbulakshmi and P.W.15 – Chellamani, who are the

Officers working in the Revenue Department, speaks about the requisition

given by the Investigation Officer in respect of tracing out of fetus of P.W.1,

which was buried in P.W.1's house and about the recovery of M.O.1 to

M.O.3.

(viii) P.W.11 – Dhanalakshmi, who was working as Staff Nurse, gave

evidence as during the relevant point of time, P.W.1 came to her husband's

hospital with bleeding. She would further state that while at the time of

giving treatment to P.W.1, she has been administered with Stembogram

injection.

(ix) P.W.12 – Dr.Rajendran, P.W.14 – Dr.Jansirani, P.W.19 –

Dr.Malathi, P.W.20 – Dr.Ilayaraja, P.W.23 – Dr.Ramalatha and P.W.24 –

Dr.Sathish, who are the Doctors, gave evidence as during the time of

investigation, they examined P.W.1 and the accused, issued age certificate

to the accused and P.W.1 and about the consumption of poison by P.W.1.

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(x) P.W.25 – Kavitha, P.W.26 – Balamurugan and P.W.27 –

S.Meenakshi are the Police Officers and they spoke about the receipt of

complaint from P.W.1, registration of the case, details of investigation and

about the filing of final report.

8.When the above incriminating materials were put to the accused

under Section 313 Cr.P.C., all the accused denied the same as false.

However, they did not choose to examine any witness or mark any

document on their side.

9.Having considered all the materials placed, the learned Sessions

Judge, Mahila Court, Pudukkottai, came to the conclusion that the first

accused in this case is guilty under Section 420 I.P.C. and accordingly,

sentenced him as stated in Paragraph 2 of this judgment and acquitted the

other accused under Section 235 (1) Cr.P.C.

10.Aggrieved over the said conviction and sentence, the accused is

before this Court with this Criminal Appeal.

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11.I have heard Mr.R.Anand, learned counsel appearing for the

appellant and Mr.M.Muthumanikkam, learned Government Advocate

(Criminal side) appearing for the State and perused the materials available

on record.

12.The learned counsel appearing for the appellant would contend

that from the date on which the alleged complaint has been received by the

Police Officer till the filing of final report, they have not followed the

mandatory procedure, which has to be necessarily followed during the time

of investigation. He would further submit that according to the case of

prosecution, immediately after the occurrence, P.W.1 consumed poison, for

which, she had been treated by P.W.12-Dr.Rajendran. In respect of the

same, a complaint has also been lodged, but for the said complaint, no

action will be initiated by the police. He would further submit that in the

material objects recovered, there was no symptom that the fetus was buried

as alleged by the prosecution and therefore, the prosecution has not proved

its case beyond reasonable doubt.

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13.Per contra, the learned Government Advocate (Criminal side)

appearing for the State would contend that the evidence given by the

prosecution witnesses is sufficient to hold that the accused herein had

cheated the victim girl and therefore, he is liable to be convicted under

Section 420 I.P.C. and prayed for dismissal of the Criminal Appeal.

14.From the materials available on record, it is apparent that the story

projected by the prosecution discloses the fact that during the time of

occurrence, the accused herein after making false promise, committed

sexual intercourse with P.W.1 and after she became pregnant, refused to

marry her. Hence, the said story attracts the cognizable offence. In general,

it is the duty of the Police Officers to register a case immediately if the

allegation leveled against the accused seems to be cognizable. But, P.W.27,

who conducted further investigation in this case, had admitted in her cross-

examination as the complaint pertains to the case has been received by the

Police on 20.07.2010 and thereafter, F.I.R. has been registered on

28.07.2010. Further, the said F.I.R. reached the Court on 23.08.2010 at

01.00 p.m.

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15.Now, on considering the delay in every area, particularly, in

assigning with the C.S.R. number, registration of the case, the Police

Personnels, who investigated the case committed atrocity on the complaint

given by P.W.1, who is the poor victim. Without any reasons, the complaint

given by P.W.1 had not been treated as a complaint to resolve the grievance

addressed by P.W.1. For the said score alone, all the Police Officers, who

dealt with this case are liable for disciplinary action.

16.Secondly, it is the case of the prosecution that before lodging the

complaint pertains to this case, P.W.1 while at the time of taking treatment

for consumption of poison, lodged a complaint and the same was intimated

to the police. In respect of the same also, the Investigation Officer gave

evidence as no case has been registered for the said incident. Further, the

story put forth by the prosecution discloses the fact that during the time of

investigation, they recovered M.O.1 to M.O.3, which are the material

objects to show that the fetus of P.W.1 was aborted in the hospital run by

the husband of Dhanalakshmi. In this regard, while at the time of giving

evidence as P.W.11, the said Dhanalakshmi had denied that no such

abortion had happened in the Hospital. In this regard, she simply states that

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during the relevant point of time, P.W.1 was brought to the Hospital with

bleeding. In otherwise, she did not say anything about the abortion and

other things.

17.Corresponding to the said evidence, the material objects collected,

which are the prima facie evidence to show that the fetus was aborted, were

examined by P.W.21 and she issued a report stating that there was no blood

detected in the material objects collected. In such circumstances, if the

story put forth by the prosecution that the fetus was handed over to P.W.1

by P.W.11 is true one, definitely on chemical examination, there may be a

possibility of detecting blood. Therefore, the said circumstance creates a

doubt whether P.W.1 became pregnant during the act of the accused.

Though the relatives of P.W.1 gave evidence in support of the prosecution,

in order to substantiate the same, the materials collected by the prosecution

and the evidence given by the Expert, who examined the material objects,

show two different versions in respect of abortion of P.W.1.

18.It is a general rule that if two sets of evidence are projected on a

single issue, the same will fatal to the case of prosecution. Therefore, in all

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totalities, the evidence given by the prosecution witnesses left a doubt

whether due to the act of the accused, P.W.1 became pregnant and

consumed poison. Accordingly, in the said circumstances, I am not in a

position to hold that during the time of occurrence, the accused herein

cheated P.W.1. Further, the necessary ingredients, which are required for

proving the offence under Section 420 I.P.C., is not shown in this case and

therefore, the conviction and sentence imposed by the learned Sessions

Judge, Mahila Court, Pudukkottai, is liable to be set aside.

19.In the result, this Criminal Appeal is allowed and the conviction

and sentence dated 12.10.2015, imposed in S.C.No.46 of 2013, by the

learned Sessions Judge, Mahila Court, Pudukkottai, is set aside and the

appellant is acquitted from the charge. The fine amount, if any, paid by him

shall be refunded to him. Bail bond, if any, executed by the appellant shall

stand cancelled.

06.09.2021 Speaking/Non-speaking order Index : Yes / No Internet: Yes smn2

https://www.mhc.tn.gov.in/judis/ Crl.A.(MD)No.335 of 2015

To

1.The Sessions Judge, Mahila Court, Pudukkottai.

2.The Inspector of Police, All Women Police Station, Alangudi in-charge Karampakudi Police Station, Pudukkottai District.

3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.

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R.PONGIAPPAN, J.

smn2

Judgment in Criminal Appeal(MD)No.335 of 2015

06.09.2021

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