Srinivasan vs State
2022 Latest Caselaw 10542 Mad

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                       DATED : 20.06.2022

                                                               CORAM

                                  THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

                                                   CRL.A.No.645 of 2017

                     Srinivasan                                             ... Appellant

                                                                Vs

                     State :
                     Inspector of Police,
                     All Women Police Station,
                     Panruti, Cuddalore District.
                     (Cr. No.3/2013)                                        ... Respondent

PRAYER: This Criminal Appeal is filed under Section 374 (2) Cr.P.C.,

against the conviction and sentence made in S.C.No.280 of 2014 on the file

of the District Mahila Sessions Court, Cuddalore by order dated 26.09.2017.

                                      For Petitioner       :     Mr.S.Balasubramanian
                                                                 for Mr.G.Dhanasekaran

                                      For Respondent      :      Mr.S.Udaya Kumar
                                                                 Government Advocate (Crl.Side)







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

The appeal is filed by the appellant/1st accused against the judgment

of conviction and sentence made in S.C.No.280 of 2014 on the file of the

District Mahila Sessions Court, Cuddalore by order dated 26.09.2017. The

appellant was convicted for offences under Section 376 (1) & 417 IPC. For

the offence under Section 376 (1) IPC, he was sentenced to undergo R.I. for

10 years and to pay a fine of Rs.5,000/-, in default, 1 year R.I., and for the

offence under Section 417 IPC, he was sentenced to undergo R.I., for 6

months.

2. The brief facts of the case are that:

The defacto complainant aged about 36 years, spinster developed

intimacy with the 1st accused aged around 55 years a married man with 3

adult children, while grazing the cattle believing his promise that he would

marry her, she had consented for sexual intercourse. As per her complaint,

the affair continuing from 2012 to January 2013, but, in cross-examination,

she admitted that the relationship with the 1st accused was for four years.

When the defacto complainant became pregnant, she asked the 1st accused,

https://www.mhc.tn.gov.in/judis appellant to solemnize the marriage. The 1st accused gave Rs.4,000/- to

abort the child and refused to marry her. On coming to know about affair

and her pregnancy, the 2nd and 3rd accused who are mother and sister of the

1st accused assaulted her. The defacto complainant gave birth to a child

subsequently.

3. The trial Court on appreciating the oral and documentary evidence

on the side of the prosecution viz., PW1 to PW9 and Exs.P1 to P8, held the

appellant herein guilty of offence under Section 417 IPC and 376(1) of IPC

and sentenced him as stated above.

4. The learned counsel appearing for the appellant placed his

arguments on a short point that PW1, the defacto complainant was a grown

up adult, had consensual sex with A1 and there is no evidence to show that

it was by force or violence. The evidence of PW1 as well as the other

witnesses only speaks about the promise given by the 1st accused to marry

the defacto complainant and his breach of promise. No evidence available

for the act of sexual intercourse without consent or consent obtained by

https://www.mhc.tn.gov.in/judis force or threat. At the most, the consent obtained by deceit and made to do

an act of causing harm and this breach will only attract the ingredient of

Section 417 IPC and not 376 (1) IPC.

5. The deposition of PW1 as it is recorded clearly shows that she was

a consented party for the act of sex. She has conceived and also given birth

to a male boy. The D.N.A. report marked as Ex.P8 indicates that A1 is the

biological father of the child. To attract offence under Section 376(1) either

the consent given by the victim should have been on a false claim that the

man with whom he had sex was believed to be her husband or the consent

must have been obtained by putting her in fear of death or hurt.

6. In this case, the case of the prosecution is that PW1 consented for

intercourse on the promise made by A1 that he marry her. It was a voluntary

consent induced by a false promise to marry her. The defacto complainant

and the appellant are not strangers, and they were known to each other for

long years. they are from same village and engaged in cattle grazing in the

same area.

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

7. The defacto complainant knows very well that the 1st accused /

appellant is a married man having three children. While so, the accused

being a widower, had cheated PW1 by making false promise and indulged

in sexual intercourse which continued for years. There is no element of

compulsion or forceful sex proved by the prosecution. In the said

circumstances, going by provisions of Section 376, this Court finds that the

conviction under Section 376 is liable to be set aside.

8. Considering the above said facts, the adult who consented for

sexual intercourse, knowing the consequence cannot plead she was raped

after consent, she cannot turn around and say that the said consent is not

valid and the act of sexual intercourse amounts to rape since he consent was

obtained giving empty promise. Therefore, this Court hold that the appellant

herein is entitled for acquittal of charge under Section 376 IPC, whereas, the

conviction under Section 417 IPC is to be confirmed.

9. In view of the above finding, the suspension of sentence ordered by

this Court dated 25.10.2017 is hereby cancelled. The appellant to be

https://www.mhc.tn.gov.in/judis secured, committed to prison to undergo the remaining period of sentence

for the conviction under Section 417 of IPC.

10. In the result,

(i) this Criminal Appeal is partly allowed ;

(ii) the conviction and sentence imposed by the trial Court under

Section 376 IPC is hereby set aside;

(iii) the conviction and sentence imposed by the trial Court under

Section 417 IPC is hereby confirmed;

(iv) the suspension of sentence ordered earlier by this Court on

25.10.2017 is cancelled;

(v) the period of imprisonment already undergone by the accused

shall be set off under Section 428 Cr.P.C; and

(vi) Since the appellant / 1st accused is on bail, the trial Court is

directed to take steps to secure him and commit him to prison to undergo the

remaining period of sentence imposed under Section 417 IPC.

20.06.2022 Index:Yes/No Speaking Order : Yes / No ssn

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

1. The District Mahila Sessions Court, Cuddalore.

2. The Inspector of Police, All Women Police Station, Panruti, Cuddalore District.

3. The Public Prosecutor, High Court, Madras.

https://www.mhc.tn.gov.in/judis DR.G.JAYACHANDRAN, J.,

ssn

CRL.A.No.645 of 2017

20.06.2022

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