Madras High Court
Sivasubramanian vs State Rep By on 27 September, 2021
Crl.A (MD) No.326 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A.(MD)No.326 of 2015
Sivasubramanian : Appellant
Vs.
State rep by,
The Inspector of Police,
Kulasekarapattinam Police Station,
Thoothukudi District.
(in Crime No.64 of 2013) : Respondent
PRAYER: This Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure, to call for the records and set aside the conviction
and sentence passed by the learned Fast Track Mahila Court, Thoothukudi
in S.C.No.109 of 2014 dated 06.10.2015 and allow the appeal.
For Appellant : Mr.R.Venkateswaran
For Respondent : Mr.E.Antony Sahaya Prabahar
Additional Public Prosecutor
1/17
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
JUDGMENT
The present criminal appeal is directed against the conviction and
sentence, dated 06.10.2015 made in S.C.No.109 of 2014, on the file of Fast
Track Mahila Court, Thoothukudi, in S.C.No.109 of 2014.
2.The appellants is the sole accused. He stood charged for the
offence punishable under Sections 376 and 417 of IPC. After a full-fledged
trial, the learned Sessions Judge, Fast Track Mahila Court, Thoothukudi,
came to the conclusion that the appellant was found guilty under Section
417 of IPC, convicted and sentenced to undergo one year rigorous
imprisonment and to pay a fine of Rs.5,000/-, in default, to undergo six
months rigorous imprisonment. Challenging the said conviction and
sentence, the appellant is before this Court with the present Criminal
Appeal.
3.The case of the prosecution in brief is as follows:-
(i) P.W.1-Sureka is a resident of Venkatachalapuram in Udangudi
and P.W.2-Vasandha is her mother. The accused is residing in the same
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
street and also he is related to P.W1. He is divorced man. During the
relevant point of time, he sought permission from P.W.2 for marrying P.W.1
and the same was negatived by P.W.2, however, after such occurrence, he
developed the acquaintance with P.W1. One day, in the midnight around
11.00 p.m., he asked the P.W.1 to come behind her house, wherein he made
false promise before P.W1 as he would marry her and afterwords, when at
the time he attempted to commit sexual intercourse with P.W1, she has
refused for the same. However, after made a promise as above, he has
indulged in sexual intercourse with her and as a result of which, she
becomes pregnant and given birth to a female child. In the mean time, when
P.W2 approached the accused for marry her, initially, he has consented for
the marriage, but in due course, he refused to marry P.W.1. Therefore, since
the accused is refused to marry her, she attempted to commit suicide and
thereby, she was admitted in the hospital, wherein, the police examined her
and obtained the statement under Ex.P.1. During the time of investigation,
both herself, her daughter and the appellant were put under DNA test.
(ii) On receipt of the complaint from P.W1, P.W10-Muthuraman,
the then Sub Inspector of Police, Kulasekaranpattinam Police Station,
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
registered a case as against the accused in Crime No.64 of 2013 under
Sections 376 and 417 of IPC. The printed FIR was marked as Ex.P1. After
registration of the case, he has forwarded the copy of the FIR to P.W12 for
investigation.
(iii) P.W12- Esakki, the then Inspector of Police, Perumalpuram
Police Station, on receipt of the said FIR, took up the same for
investigation. He visited the scene of occurrence and prepared an
observation mahazar. He drawn the rough sketch and the same was marked
as Ex.P15. He examined the witnesses and recorded their statements. He
submitted an application before the learned Judicial Magistrate,
Thiruchenthur, to conduct medical examination to the victim girl. In turn,
in view of the proceedings issued by the Magistrate, P.W9-Dr.Sridevi
attached with Thoothukudi Medical College Hospital, medically examined
P.W.1 and issued a certificate. In the mean time, the victim girl had given
birth to one female child on 25.02.2013 around 11.00 a.m, for which, P.W.9
issued the AR copy under Ex.P10. The requisition letter given by Inspector
of Police before the Magistrate was marked as Ex.P9.
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
(iv) On 01.07.2013, P.W12 arrested the accused in Coimbatore
and sent him to the remand. On 02.07.2013, he submitted an application
before the Magistrate, wherein he prayed to conduct medical examination to
the accused. In turn, in view of the proceedings issued by the Magistrate,
P.W7-Dr.Manokaran attached with Government Hospital, Thoothukudi
examined the accused on 03.07.2013 and issued the report under Ex.P6
stating that there is nothing to suggest that he is impotent. The requisition
given by P.W12 was marked as Ex.P5.
(v) In continuation of investigation, P.W12 submitted an
application before the learned Judicial Magistrate, Tiruchenthur, to conduct
DNA test to the accused, P.W1 and to the minor child, who born to P.W1.
In turn, P.W.8-the Scientific Officer in Regional Forensic Science
Laboratory, collected the blood samples from those persons and after
examination, he issued report stating that the accused is the biological
father of the minor child. The DNA report issued by him was marked as
Ex.P8. After collecting the said report, P.W12 examined the Scientific
Officer and recorded their statements. After concluding the investigation,
he came to the positive conclusion that the accused is liable to be convicted
under Sections 417 and 376 of IPC. He filed the final report accordingly.
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
4.Based on the materials available on record, the trial Court
framed the charges for the offence under Sections 417 and 376 of IPC.
The accused denied the charges and opted for trial. Therefore, the accused
was put on trial.
5.During the course of trial proceedings, in order to prove their
case, on the side of the prosecution, 12 witnesses have been examined as
PW1 to PW12 and 15 documents are exhibited as Ex.P1 to Ex.P15.
6.(i) Out of the above said witnesses, PW1-Surekha is the victim
girl. She spoken about the occurrence as during the relevant point of time,
since her mother refused to give permission for marrying her, the accused
developed the intimacy on her and during the time of occurrence, after
given a false promise as he would marry her, he indulged in sexual
intercourse with her and as a result of which, she had given birth to one
female child.
(ii) P.W.2-Vasantha is the mother of P.W1. She spoken about the
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
occurrence as during the time when the accused approached her for getting
permission to marry P.W.1, she refused to give permission to him.
Afterwords, on 25.02.2013, P.W1 gave birth to one female child and
thereafter, on enquiry, P.W.1 confessed that the accused is the sole reason
for her pregnancy. She has further stated before the trial Court as during
the time when she along with others approached the accused for marrying
P.W1, he refused to marry her.
(iii) P.W.3-Rajesh is the brother of P.W1. He has stated as during
the time of occurrence, P.W1 consumed poison and due to the same, he
brought P.W1 to the hospital, wherein, the Doctor refused to give treatment.
However, they had given first aid and advised to go to Government
Hospital, Thoothukudi, for further treatment. According to him, P.W1 gave
birth to one female child.
(iv) P.W4-Alexander, who is a resident of Venkatachalapuram in
Udangudi, gave evidence as during the time of investigation P.W.12 visited
the scene of occurrence and prepared an observation mahazar under Ex.P2.
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
(v)P.W5-Prabha Devi, the then Grade-I Head Constable,
Kulasekaranpattinam Police Station deposed that she had produced the
victim girl before the Doctor for medical examination.
(vi)P.W6-Muthukumar, the then Head Constable,
Kulasekaranpattinam Police Station, spoken about the statement recorded
from P.W1. P.W7-Dr.Manokaran attached with Government Hospital,
Thoothukudi, speaks about the examination of accused.
(v) P.W.8-Rajesh is the Assistant Scientific Officer working in the
Forensic Science Department, Madurai, spoken about the collection of
blood samples and about the result of DNA test.
(vi) P.W9-Dr.Sridevi, attached with Government Hospital
Thoothukudi, spoken about the examination made on the victim girl.
P.W10-Muthuraman, the then Sub Inspector of Police, Kulasekaranpattinam
Police Station, spoken about the receipt of complaint and about the
registration of the case.
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
(vii) P.W11-Dr.Lourdes Albina spoken about the collection of
blood samples from P.W1, accused and the minor child. P.W12-Esakki, the
then Inspector of Police, Kulasekaranpattinam Police Station, speaks about
the investigation, examination of witnesses and also about the filing of final
report.
7.When the above incriminating materials were put to the accused
under Section 313 of Cr.P.C., the accused denied the same as false.
However, he did not choose to examine any witness nor mark any document
on his side.
8.Having considered all the above materials placed before him
and on appreciating the submissions made by the learned counsel appearing
on either side, the learned Sessions Judge came to the conclusion that the
appellant herein was guilty under Section 417 of IPC, convicted and
sentenced as stated in paragraph No.2 of this judgment. As already stated in
respect to offence under Section 376 of IPC, he was acquitted by the trial
Court. Challenging the said conviction and sentence the appellant is before
this Court with this criminal appeal.
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
9. I have heard Mr.R.Venkateswaran, learned counsel appearing
for the appellant and Mr.M.Muthumanikkam, learned Government
Advocate (crl.side) appearing for the State and also perused the records
carefully.
10.The learned counsel appearing for the appellant would contend
that the evidence given by P.W1 in respect to the illicit intercourse
committed by the accused is having lot of contradictions. Merely, because
of the reason that DNA report is found against the accused, it cannot be held
that he cheated P.W.1 at the relevant point. Therefore, the conviction and
sentence awarded by the trial Court has to be set aside by this Court.
11.Per contra, the learned Government Advocate (crl.side) would
contend that the result of DNA test would prove that the accused is the
biological father of the minor child and therefore, it should be held that the
accused alone cheated P.W1. According to him, the findings rendered by
the Courts below should not be disturbed by this Court.
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
12.I have considered the rival submissions made by the learned
counsel appearing on either side.
13.Now, on going through the judgment rendered by the trial
Court, it was observed that only by believing the false promise made by the
accused, the victim shared the bed with the accused and as a result of which,
she became pregnant. In otherwise, the trial Court had not going into the
fact that the accused is having fraudulent intention or otherwise, he
dishonestly induced P.W1. In this regard, on going through the evidence
given by P.W1, in her chief examination, she has stated as while at the time
the accused attempted to indulge in a sexual activity, he made a promise for
marrying her. On the other hand, in her cross-examination, she has admitted
that till delivering the minor child, she has not disclosed the details of
pregnancy to any body, further, she admitted in her cross-examination that
while at the time the accused came for committing alleged intercourse, she
had not raised objection by raising alarm. The said evidence given by
P.W1 shows that she has also a consenting party for the alleged sexual
activity committed by the accused. The entire cross-examination of P.W1
would disclose the fact that she continued the relationship with the accused
in many times.
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
14. On the other hand, before the authorities, she made a
statement as only one time she indulged in the alleged occurrence and at the
same time, she has not stated about the consent given by the accused to the
marriage with her. Therefore, the above said evidence given by P.W1
reveals the fact that after the occurrence, the accused had approached
P.W1's mother to marry the victim girl and also the relationship between the
accused and the victim girl had continued till she gave birth to a female
child. Therefore, the whole evidence given by P.W.1 discloses the fact that
the accused is not having any intention to cheat P.W1 and thereby, in the
absence of any specific evidence in respect to the false promise alleged to
be given by the accused, we cannot came conclusion that the accused herein
had fraudulently induced P.W1 to commit an act, which cause damage to
her body. The trial Court, without appreciating the same, held that the
accused committed an offence under Section 417 of IPC. Therefore, I am
of the considered opinion that the evidence given by P.W1 in her cross
examination and the evidence given by P.W2 is narrow that at the time of
committing the offence, the accused herein having the intention to marry
P.W1 and thereby, the same cannot constitute the offence under Section 417
of IPC.
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
15.However, it is the specific contention raised by the learned
Additional Public Prosecutor appearing for the State that only due to the
physical relationship with the accused, P.W1 begotten a female child
namely Dharshini and therefore, it should be necessary to award some
compensation to the female child.
16.Now, on considering the said submission with the facts and
circumstances of the case, it is true the evidence given by the Doctor, who
conducted DNA Test proved the fact that P.W1 is the mother of the child
Dharshini and the accused herein is her biological father. The accused is
also not disowning the same.
17.In the said circumstances, though P.W1 says that she is a
victim, real fact is that by the act and conduct of the accused and P.W1, the
child Dharshini is born and she is the real victim. Therefore, the child has
every right to proceed against the accused under civil law. For no wrong
on the part of the child, she is now in the earth with a social stigma. When
the child grow she would develop some sort of frustration and that she has
to carry such ordeal for all her remaining life due to the unmindful conduct
of P.W1 and the accused.
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
18.In fact, the word “Victim” defined in Sec 2(WA) of Cr.P.C is,
as follows:-
“Victim” means a person who has suffered any loss
or injury caused by reason of the act or omission for which the
accused person has been charged and the expression 'Victim'
includes his or her guardian or legal heir”
Now, on go through the said definition herein also due to the act of the
accused, the child suffered loss and injury as stated above. Therefore, this
Court is very confident that the child Dharshini is the victim, under the
definition of Section 2(WA) of Cr.P.C and therefore, in view of the above,
the accused is liable to pay compensation to the victim child.
19. As far as the quantum of compensation is concerned, the
learned counsel for the appellant fairly admit that the accused is running a
grocery store in Coimbatore. Therefore, considering the nature of business
conducted, it is easy for the accused to pay Rs.7,00,000/- as a compensation.
20.Accordingly, without prejudice to the civil right having by the
minor child, to proceed against the accused, under Section 357(A)(3) of
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
Cr.P.C the accused is directed to deposit a sum of Rs.7,00,000/- to the credit
of S.C.No.109 of 2014, dated 24.08.2015 on the file of the Fast Track
Mahila Court, Thoothukudi, within a period of four months from the date of
receipt of a copy of this order as a compensation to the child Dharshini. On
such deposit being made, the learned trial Judge is directed to deposit the
said amount in any one of the nationalized bank for the period till the minor
attains majority. The defacto complainant/P.W1 is permitted to receive the
interest once in three months and the same is to be utilized for the welfare
and benefit of her child. After attaining the majority, the child is entitled to
receive the matured amount on proper identification.
20.With the above directions, this Criminal Appeal is allowed
and the conviction and sentence imposed on the appellants/accused, by the
learned Sessions Judge, Fast Track Mahila Court, Thoothukudi, dated
06.10.2015 is set aside. The fine amount, if any, paid by the appellant, shall
be refunded to him. Bail bond, if any, executed by the appellant shall stand
cancelled.
27.09.2021
Index : Yes/No
Internet : Yes/No
cp
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
To:-
1.The Sessions Judge,
Fast Track Mahila Court,
Thoothukudi.
2.The Inspector of Police,
Kulasekarapattinam Police Station,
Thoothukudi District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
4.The Section Officer,
Criminal Section records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
Crl.A (MD) No.326 of 2015
R.PONGIAPPAN, J.
cp
JUDGMENT MADE IN
Crl.A.(MD)No.326 of 2015
27.09.2021
https://www.mhc.tn.gov.in/judis/
