Madras High Court

Mahadevan vs State Rep. By on 10 June, 2022

                                                                                         Crl.A.No.628 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 10.06.2022

                                                          CORAM :

                     THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                     Crl.A.No.628 of 2019
                                                             and
                                                   Crl.M.P.No.13511 of 2019
           Mahadevan                                                             ... Appellant

                                                           Versus

           State Rep. by,
           The Inspector of Police,
           AWPS Perambalur,
           Coimbatore.
           Crime No.3 of 2018                                                    ... Respondent


           Prayer : Criminal Appeal filed u/s. 374(2) of Cr.P.C to call for the records in
            Spl.S.CNo.11 of 2018 on the file of the Session Judge Mahila Court, Perambalur
            and to set aside the judgement dated 30.01.2019 made in Spl.S.C.No.11 of 2018.

                                  For Appellant      : Mr.P. Muthamizh Selvakumar and
                                                      Ms. Y.Kavitha, Legal Aid Counsel

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

                                                            *****




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




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                                                                                   Crl.A.No.628 of 2019




                                                  JUDGMENT

This appeal is filed by the accused, aggrieved by the judgment of the Session

Judge Mahila Court, Perambalur dated 31.01.2019 in Special S.C.No.11 of 2018,

whereby, the appellant is convicted for the offence under Section 363 of IPC and he

is imposed a sentence of seven years rigorous imprisonment and fine of Rs.5,000/-

(Rupees Five Thousand Only) in default of payment of fine, one year simple

imprisonment and for the offence under Section 406 of IPC, he was imposed with a

sentence of three years simple imprisonment and fine of Rs.5,000/- (Rupees Five

Thousand Only) and in default of fine, to undergo simple imprisonment for six

months.

2. The case of the prosecution is that, on 05.01.2018, one Thenmozhi, mother

of the victim child came to All Women Police Station, Perambalur and lodged a

complaint to the effect that her daughter, who was aged 16 years at that time, was

studying 10th Standard and since she was in relationship with the accused, she was

stopped from School and was sent to Thiruppur for work and since, on 17.12.2017,

her grandmother died, she was brought back to the village. However, on

26.12.2017, she went missing and the accused had taken her and she was rescued

on 02.01.2018 and her daughter had disclosed that the accused had taken her to https://www.mhc.tn.gov.in/judis various places and had also taken 3 gram stud and 3 sovereign chain and

Crl.A.No.628 of 2019

Rs.10,000/- cash from her and hence her mother lodged the said complaint on

05.01.2018.

3. On the said complaint, the case in Crime No.3 of 2018 was registered for

offences under Sections 363, 406 of IPC and Sections 7 and 8 of the POCSO Act.

PW16 Inspector of Police took up the case for investigation and laid charges before

the Special Court, which was taken on file as Spl.S.C.No.11 of 2018. Charges were

framed by the trial Court for the offences under Sections 363, 406, 354A(1) of IPC

and Sections 7 and 8 of the POCSO Act. The accused denied the charges and stood

trial.

4. The prosecution examined the mother of the victim child as PW1; victim

child was examined as PW2; one Malarkodi who is the relative of the victim child

and who heard about the victim went missing with money and jewels was examined

as PW3; one Revathi, who is also a relative of the victim child was examined as

PW4; and for the same purpose, one Jayaraman, who is the maternal uncle of the

victim child was examined as PW5; one Selvam, who is also the maternal uncle of

the victim child was examined as PW6; one Muthamizhveeran was examined as

PW7, who was a resident of the village and he turned hostile; one Ragupathi, who

is also a resident of the village was examined as PW8 and he also turned hostile; https://www.mhc.tn.gov.in/judis one Ravichandran was examined as PW9, who is the Headmaster of the School, in

Crl.A.No.628 of 2019

which, the victim child was studying; one Dr.Girish Kumar, who examined the

accused and found him fit for physical intercourse was examined as PW10; one

Selvaraj who is a witness in Operation Mahazar was examined as PW11, one Raja,

who is a Pawn shop owner from where a pair of studs were recovered was examined

as PW12 ; One Mr. Dr.Saleena, who examined the victim child was examined as

PW13; the Head Constable who took the accused for medical examination was

examined as PW14; one Jayalakshmi, Grade I constable who took the victim child

for medical examination was examined as PW15; and Rathnammal, the

Investigation Officer was examined as PW16.

5. On behalf of the prosecution, the complaint was marked as Ex. P1. The

statement given by the victim child under Section 164 Cr.P.C was marked as Ex.P2.

The Transfer Certificate register of the victim child from her school was marked as

Ex.P3. The medical examination report of the accused was marked as Ex.P4. The

signature of PW11 in the observation mahazar was marked as Ex.P5. The medical

examination report of the victim child was marked as Ex.P6. The FIR was marked

as Ex.P7. The observation mahazar was marked as Ex.P8. The rough sketch was

marked as Ex.P9. The alteration report was marked as Ex.P10. The Transfer

Certificate was marked as Ex.P11 and the prosecution rested its case.

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Crl.A.No.628 of 2019

6. Upon questioning about the material evidence and incriminating

circumstances on record as per Section 313 of the Code of Criminal Procedure, the

accused denied the same as false. Thereafter, no evidence was let in on behalf of the

defence and the trial Court proceeded to hear the submissions of the learned Special

Public Prosecutor and the learned counsel for the accused and by judgement dated

30.01.2019 in Special S.C.No.11 of 2018 while acquitting the appellant/accused for

the charges under Sections 354(A1) of IPC and 7 and 8 of POCSO Act, the trial

Court convicted the accused for the offence under Section 363 of IPC and 406 of

IPC and sentenced him as aforesaid. Aggrieved by the same, the present appeal is

laid before this Court .

7. When the appeal came up for hearing, there was no representation on

behalf of the learned Counsel for the accused. Therefore, this Court appointed

Ms. Kavitha as Legal Aid Counsel. However, thereafter when the matter taken up

for hearing, the learned counsel for the appellant was also present and therefore

both the learned counsels were permitted to argue.

8. Therefore, this Court heard both Counsels on behalf of the appellant and

the learned Government Advocate (Crl. Side) on behalf of the prosecution and

perused the material records of the case.

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Crl.A.No.628 of 2019

9. Mr.P.Muthamizh Selvakumar, learned counsel appearing on behalf of the

appellant/accused submitted that, as far as the conviction under Section 363 IPC is

concerned, it is the specific case of the appellant that after taking away the minor,

she was taken to one Vaithi's house and thereafter taken to his friends house and

even though, those two persons will be the most competent witnesses to speak

about the offence being committed, the prosecution did not even examine the said

witnesses. Therefore, the very incident itself is not even proved. Apart from the

same, even after the victim girl came back to be entrusted to the lawful guardian on

02.01.2018, the complaint was lodged by the victim girl's mother on 05.01.2018

after a delay of 3 days and that would throw further suspicion in the very case of

the prosecution. The learned counsel further submitted that, it may be seen that, the

victim girl went missing on 26.03.2019 and absolutely no complaint was lodged by

the mother and father, who are the lawful custodians of the victim. Therefore, he

submitted that the prosecution has miserably failed to establish the offence under

Section 363 of IPC.

10. The learned counsel further submitted that as far as the offence under

Section 406 IPC is concerned, the original version of the girl was that the chain

worth 3 sovereign was taken away from her, but however, no such recovery was

made and therefore, there is no further proof for this regard. As far as the recovery https://www.mhc.tn.gov.in/judis of the stud is concerned, it may be seen that the girl herself returned to her parents

Crl.A.No.628 of 2019

on 02.01.2018 and even as per the evidence of PW11 and PW12, the recovered pair

of studs was pledged that too, by the father of the accused only on 29.01.2018. As

a matter of fact, the said pair of studs was not even identified by PW2 victim child

and PW1 mother Thenmozhi and the jewels belong to the family of the accused are

shown as if it were that of the victim child. Therefore, the learned counsel for the

appellant/accused submitted that the prosecution has not made out both the offences

and therefore the appellant is entitled for acquittal.

11. The learned Legal Aid Counsel appearing for the appellant/accused also

reiterated that as far as the offence under Section 363 IPC is concerned, mere taking

away is not enough and the prosecution must prove as to whether there is

enticement of the accused. In this regard by taking this Court to the statement made

under section 164 Cr.P.C, in which, the girl categorically deposed that she went out

voluntarily without enticement whatsoever, she submitted that the prosecution

failed to prove the instigation or enticement. For this purpose, learned Legal Aid

Counsel appearing for the appellant relied upon the Supreme Court Judgement in

the case"S.VARADHARAJAN VS STATE OF MADRAS''1 and dictum laid down

therein has been recently followed by a Division Bench of this Court in the case of

"Rajivgandhi Vs The State2", in Criminal Appeal (MD) No.354 of 2021. In the

above judgments, it has been categorically held that additionally enticement was to 1 AIR 1965 SC

https://www.mhc.tn.gov.in/judis 2 MANU/TN/2902/2022

Crl.A.No.628 of 2019

be proved by the prosecution so as to convict the appellant herein for the offence

under Section 363 IPC. As far as the offence under Section 406 IPC is concerned,

learned Legal Aid Counsel appearing for the appellant submitted that the evidence

of PW1 and the victim child are at variance and further only the stud which is not

identified alone, was recovered, that too belatedly from PW14. This apart, she

would submit that, no categorical evidence about entrustment is on record and

therefore, the learned legal aid counsel for the appellant prayed that the accused is

entitled for the benefit of doubt.

12. Per contra, learned Government Advocate appearing on behalf of the

prosecution submitted that the trial Court has categorically in detail appreciated the

evidence and since the offence under Sections 7 and 8 of POCSO Act and Section

354(A) of IPC was not made out, the appellant was acquitted, but from the

categorical and complete reading of the evidence on record, it is clear that the

appellant/accused went away with the minor child, who is aged less than 18 years.

The victim child was examined as PW2 and in her evidence, she has clearly

deposed that, inspite of her resistance, she was enticed by the appellant to come

with him by stating that only if she comes, her parents will get her married with the

accused. He further submitted that the prosecution has categorically proved the

enticement under Section 363 of IPC. He would further submit that mere non- https://www.mhc.tn.gov.in/judis identification of the studs will not render the recovery ineffective. As a matter of

Crl.A.No.628 of 2019

fact, the pawn shop owner has been examined as PW14 and the studs have been

duly recovered and weight of the studs has been shown as 2 grams and the victim

girl has mentioned it as 2 grams in her evidence and therefore prosecution has

atleast made out part recovery and evidence of the victim girl is to the effect that

the money and jewels have been taken away from her and same were not returned

and were converted to his own use and hence the offence under Section 406 of IPC

stands proved and therefore, the trial Court has rightly convicted the

appellant/accused.

13. I have considered the rival submissions made on both sides and perused

the material records of this case.

14.Firstly, coming to the charge relating to the offence under Section 363 of

IPC is conerned, on perusal of the statement under Section 164 Cr.P.C, there is

absolutely no mention about any enticement of any nature whatsoever. Secondly, in

this case, the minor girl, who was working in Thiruppur, was said to have been

brought to the village on account of the death of the grandmother, in respect of

which, the complaint was given by her mother against her father and during that

time, it cannot be said that, as a matter of fact, she was enticed away from her

lawful guardian. It is in this context, the judgement of the Honourable Supreme https://www.mhc.tn.gov.in/judis Court of India in "S.VARADARAJAN Vs STATE OF MADRAS" which was relied

Crl.A.No.628 of 2019

upon by the learned counsel for the appellant, is appropriate in the facts and

circumstances of the case and the relevant portion is extracted hereunder:

" 9. It must, however, be borne in mind that there is a distinction between taking and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarged as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what he was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and thai is some kind of inducement held out by the accused peron or an Active participation by him in the formation of the intention of the minor to leave the house of the guardian"

15. As a matter of fact, the dictum of the judgement of the Supreme Court

which was followed by the Division Bench of this Court, reported in "Rajivgandhi

Vs The State''2 in Crl.A.(MD)No.354 of 2021 and para15 reads as follows:-

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Crl.A.No.628 of 2019

"15. After observing so, the Hon'ble Supreme Court found that the minor girl who was aged about above 16 years, had on her own free will walked out of the house and gone with the accused person. The meaning of the word énticing' was also considred by the Hon'ble Supreme Court in the said judgment and the Supreme Court held that in order to prove the offence of kidnapping, it must be established that the accused had a role in her walking out and he had taken her away from her house. In the case on hadn, it is in the evidence that the victim girl had walked out of her house on her own in the pretext of having some old clothes stitched. She had travelled with the accused and was caught agter nearly 24 hours. She never made an attempt to escape from his custody. The above conduct of the minor girl would show that she had gone on her own volition and therefore, the essential ingredients of the offence under Section 363 IPC has not been made out. We therefore, conclude that the conviction for the offence under Section 363 IPC is not justified and the accused should be acquitted of the offence under the said Section"

16. Thus in this case, neither in the FIR nor in the statement recorded under

section 164 of Cr.P.C, there is absolutely any whisper about enticement. PW2 ie.,

the victim girl, for the first time, when she got into the box, has stated that she

resisted from going out stating that she was minor and that the accused insisted her

to come along with him and get married. It is in this context, PW2 victim child who

is aged 17 years at the time of occurrence, allegedly have voluntarily gone and met https://www.mhc.tn.gov.in/judis

Crl.A.No.628 of 2019

the accused at the time when the family was witnessing such a turbulence, namely

grandmother is dead and mother is accusing the father for poisoning her and she

had come away with Rs.10,000/- kept for the "Karmathi" (16th day ceremony)

purpose of final rites expenditure and considering the further fact that the parents

have stopped her from School education and makes her statement completely

unbelievable. It is pertinent ti state here, that when her parents stopped her from

school and set her away to Tiruppur, the accused did not go there and take her

away, but when she was called back to the village, she meets the accused and walks

away from home. Therefore, I hold that there is no evidence of enticement in the

instance case and following the dictum of the above judgements referred, I hold that

the prosecution has failed to establish the offence under Section 363 IPC.

Therefore, conviction for the charge under Section 363 IPC is upturned.

17. Coming to the charge under Section 406 IPC, as rightly pointed out by the

learned counsel for the appellant/accused, firstly, the three sovereign chain was not

recovered. As far as the studs are concerned, it can be seen that the girl came back

to the village ie., to the custody of the parents and only three days after, the

complaint was lodged. However, a pair of studs which was subsequently pledged

by the father of the accused that too only on 28.01.2018, has been recovered.

Rightly so, the same as not been identified by PW2 victim girl or PW1 her mother. https://www.mhc.tn.gov.in/judis Therefore, there arises suspicion whether the studs belongs to the victim child.

Crl.A.No.628 of 2019

Therefore, in the absence of the clinching evidence, it would not be appropriate to

convict the accused based on the fragile evidence available on record. Therefore, I

hold that the conviction by the trial Court for the offence under Section 406 IPC is

also unsustainable and requires interference.

18. Accordingly, this appeal is allowed on the following terms:

(i) the conviction of the appellant and the sentence imposed by the judgment

dated 30.01.2019, in Spl.S.C.No.11 of 2018 for the offence under Section 363 and

409 of IPC stands set aside;

(ii) the fine amount if any paid by the appellant is ordered to be refunded to

him;