Madras High Court

Magendiran vs State Represented By on 5 April, 2023

    2023:MHC:1869




                                                                            Criminal Appeal No.70 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 05.04.2023

                                                          CORAM

                            THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH

                                             Criminal Appeal No.70 of 2017

                     Magendiran
                     S/o.Srinivasan                                 ... Appellant/Accused No.2

                                                            Vs.
                     State represented by
                     The Inspector of Police,
                     All Women Police Station,
                     Namakkal, Namakkal District.
                     Crime No.2/2014                                ... Respondent/Complainant

                     Prayer : Criminal Appeal filed u/s.374 of the Code of Criminal Procedure
                     against the judgment passed by Sessions Judge, Fast Track Mahila Court,
                     Namakkal, in S.C.No.93 of 2014, dated 19.01.2017.


                                     For Appellant       : Mr.K.Vishwajeeth Yogeshwara
                                                           for Dr.G.Krishnamurthy

                                     For Respondent     : Mr.L.Baskaran
                                                          Government Advocate [Crl.side]
                                                           *****



                     1/12




https://www.mhc.tn.gov.in/judis
                                                                                  Criminal Appeal No.70 of 2017

                                                        JUDGMENT

This Criminal Appeal has been filed against the judgment and order

passed in S.C.No.93 of 2014, dated 19.01.2017, convicting the appellant

[A2] for offence u/s.376 r/w 511 IPC and sentencing him to undergo five

years rigorous imprisonment and to pay fine of Rs.2,000/-, in default, to

undergo three months rigorous imprisonment.

2. The case of the prosecution is as follows:

2.1. The complainant [PW-1] married A1 on 13.05.2011. On the

demand made by A1 and A3 [mother of A1] gold jewellery to the tune of 10

pounds, a gold ring and other household articles were given at the time of

marriage. The complainant was living in a joint family and A2, who is the

brother of A1 was living in the same house. A1 is said to be addicted to

alcohol and was repeatedly harassing the complainant. The further case of

the prosecution is that A2 had the habit of peeping into the bathroom when

the complainant takes bath and was continuously harassing the complainant.

When this was complained to A1, he directed the complainant to adjust with

A2. Ultimately, on 08.11.2011, at about 04.00 p.m., A2 is said to have

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entered the bathroom, pushed down the complainant, attempted to remove

her clothes and torn her blouse. With very great difficulty, the complainant

escaped from A2.

2.2. The complaint [Ex.P1] was given by PW-1 on 10.12.2013 at

16.30 hours against A1 to A3. On receipt of the complaint, PW-8, Sub-

Inspector of Police, All Women Police Station, Virudhunagar, registered the

First Information Report [Ex.P6] in Crime No.2 of 2014 for offences

u/s.498-A, 376 r/w 511, 506(i) IPC, Section 4 of the Dowry Prohibition Act

and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act.

2.3. The investigation was taken up by PW-10, Inspector of Police.

PW-10 arrested A2 and remanded him to judicial custody. The Investigation

Officer also recorded the statements of witnesses u/s.161(3) Cr.P.C. A1 and

A3 obtained anticipatory bail before the High Court. PW-10 prepared the

alteration report marked as Ex.P7 and the offence was altered to Sections

498-A and 506(ii) IPC, 376 r/w 511 r/w 109 IPC and Section 4 of the Dowry

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Prohibition Act, 1998.

2.4. On completion of investigation, the final report was filed on

05.07.2014 before the Judicial Magistrate I, Namakkal and the same was

taken on file in P.R.C.No.7/2014. Copies were issued to the accused persons

u/s.207 Cr.P.C. and the case was committed u/s.209 Cr.P.C. and it was made

over to the Court below. The trial Court framed charges against A1 to A3 for

offences u/s.498-A IPC, 376 r/w 511 r/w 109 IPC, Section 4 of Dowry

Prohibition Act, against A1 for offence u/s.506(ii) IPC and against A2 for

offfence u/s.376 r/w 511 IPC. When these charges were put to the accused

persons, the same were denied and the accused persons pleaded not guilty.

2.5. The prosecution examined PW-1 to PW-10 and marked Exs.P1 to

P7. The incriminating evidence that was collected during the course of trial

was put to the accused persons when they were questioned u/s.313(1)(b)

Cr.P.C. and they denied the same as false.

2.6. The trial Court, on considering the facts and circumstances of the

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case and on appreciation of oral and documentary evidence, came to a

conclusion that the prosecution has proved its case beyond reasonable

doubts as against the appellant [A2] for offence u/s.376 r/w 511 IPC and

accordingly, sentenced him in the manner stated supra. A1 and A3 were

acquitted from all charges. This Criminal Appeal has been filed by appellant

[A2] against his conviction u/s.376 r/w 511 IPC.

3. Heard Mr.K.Vishwajeeth Yogeshwara, learned counsel for

appellant and Mr.L.Baskaran, learned Government Advocate [Crl.side],

appearing for the respondent/State.

4. This Court has carefully considered the submissions made on either

side and perused the materials available on record.

5. There is no dispute with regard to the fact that A2 is the brother of

A1 and he was also living in the same house. PW-1, in her evidence, has

categorically stated that right from the beginning, A2 was continuously

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putting her to embarrassment and he also had the habit of peeping into the

bathroom when PW-1 was taking bath. She has further stated that he peeps

into the bedroom when she and A1 are sleeping. In view of the same, it is

clear that A2 was indulging in voyeurism. PW-1 has also stated in her

complaint that on 08.11.2011 at about 04.00 p.m., A2 entered into the

bathroom when she was taking bath and attempted to remove her clothes

and in the said process, her blouse was torn and he attempted to rape PW-1.

Unfortunately, A2 has not cross-examined PW-1 in this regard and the

allegations made by PW-1 went uncontroverted.

6. PW-2, who is the mother of PW-1, has also spoken about the

harassment meted out by A2 and the complaint made by PW-1 to her mother

in this regard. PW-2 also has not been cross-examined by A2 in this regard.

7. All the other witnesses have spoken about the marital discord

between A1 and PW-1 and the dowry harassment made by A1 and A3. The

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evidence of all those witnesses may not have any bearing insofar A2 is

concerned since the specific allegation made against A2 is that he attempted

to rape PW-1.

8. Section 218 Cr.P.C. mandates that for every distinct offence of

which any person is accused, there should be a separate charge and every

charge should be tried separately. If persons are jointly tried for more than

one offence, the offence must be committed in the course of same

transaction.

9. In the instant case, the allegation against A1 and A3 pertains to

demand for dowry and cruelty meted out to PW-1. The other independent

allegation is that A2 was sexually harassing PW-1 and had attempted to rape

her and it was abetted by A1 and A3. By no stretch, these two offences can

be tried together since they are independent offences, which do not fall

within the course of the same transaction. Unfortunately, neither the trial

Court nor the learned counsel appearing for the accused persons brought

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this to the notice of the trial Court and as a result, a common trial was

conducted as against all the three accused persons for various offences. This

is clearly a case of misjoinder of charges, which ought not to have been

done by the trial Court.

10. The contravention of the mandate provided u/s.218 Cr.P.C. is

curable u/s.464 and 465 of Cr.P.C. unless the accused person is able to show

that there was failure of justice occasioned due to misjoinder of charges.

Useful reference can be made to the judgment of the Apex Court in

Kamalanantha and others v. State of Tamil Nadu [AIR 2005 SC 2132].

11. The evidence of PW-1 and PW-2 which went uncontroverted on

the side of A2 sufficiently proves the occurrence. The Court below has

convicted A2 for offence u/s.376 r/w 511 IPC on the ground that there was

an attempt to rape.

https://www.mhc.tn.gov.in/judis Criminal Appeal No.70 of 2017

12. To take recourse to Section 511 IPC, two conditions must be

satisfied and they are:

(a) the offender should have done some act towards commission of the main

offence; and

(b) such an attempt is not expressly covered as a penal provision elsewhere

in the Indian Penal Code.

13. Keeping the above ingredients in mind and applying the same to

the facts of the present case, the relevant portion of the evidence of PW-1 is

extracted hereunder:

"08/11/2011 njjpapy; khiy 4 kzpastpy; ehd;

                                  tPl;oy;     gLj;jpUe;jnghJ      vd;id     ky;yhf;f
                                  js;sptpl;L        vd;      nky;gLj;Jtpl;L      vd;
                                  rl;ilbay;yhk;           fpHpj;Jtpl;lhU/       ehd;

rj;jk;nghl;Lfpl;L btspna Xo te;Jtpl;nld;/"

14. The above description given by PW-1 clearly brings this case

u/s.354 IPC. The act of pushing a woman, attempting to remove her clothes

coupled with an attempt made to commit sexual intercourse, would certainly

outrage the modesty of the woman and it is sufficient to constitute the

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offence u/s.354 IPC. Since the act of A2 is specifically covered u/s.354 IPC,

the present case cannot be brought within the ambit of Section 511 IPC. In

view of the same, the conviction made by the Court below u/s.376 r/w 511

IPC, is unsustainable. The appellant is liable to be convicted u/s.354 IPC.

Accordingly, the conviction imposed by the trial Court stands modified.

15. Insofar as sentence is concerned, the imprisonment is confined to