Citation : 2023 Latest Caselaw 9326 Mad
Judgement Date : 1 August, 2023
Crl. Appeal No. 688 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 01.08.2023
Coram
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl. Appeal No. 688 of 2016
S.Sivagnanam .. Appellant/Sole Appellant/Accused
Vs.
The State represented by
The Inspector of Police,
Thazhambur Police Station,
Kancheepuram District.
(Crime No.11 of 2002) .. Respondent/Complainant
Criminal Appeal filed under Section 374 Cr.P.C to set aside the
conviction and sentence imposed on the Appellant/Sole Appellant/Accused
in S.C.No.134 of 2005 on the file of the learned Principal Sessions Judge of
Kancheepuram District at Chengalpattu, dated 02.09.2016.
For Appellant .. Mr.V.Krishnamoorthy
and Mr.K.Ethirajalu
Legal Aid Counsel
For Respondent .. Mrs.G.V.Kashthuri
Additional Public Prosecutor
1/26
https://www.mhc.tn.gov.in/judis
Crl. Appeal No. 688 of 2016
JUDGMENT
The Appellant/Accused has preferred this Criminal Appeal as against
the judgment of conviction and sentence imposed on him in S.C.No.134 of
2005 on the file of the learned Principal Sessions Judge of Kancheepuram
District at Chengalpattu, dated 02.09.2016.
2.The brief facts which are necessary to decide this Appeal are as
follows:
2.1.The victim/Complainant belongs to Hindu Adi Dravidar
community. The Appellant/Accused belongs to Hindu Yadava community.
Four months prior to 06.01.2002, the Appellant/Accused fell in love with the
Victim/Complainant aged about 19 years and also had sexual intercourse
with her by saying “vdf;F 12 yl;r Ugha; brhj;J cs;sJ/ vd;id jpUkzk;
bra;jhy; uhzp khjpup thHyhk;/ ehd;jhd; cd;id fy;ahzk; bra;J bfhs;s
nghfpnwnd eP gag;glhnj/” Believing the words the victim had sexual
intercourse and become pregnant. Later, the Appellant/Accused refused to
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marry her stating that she is Scheduled caste. Hence the Deputy
Superintendent of Police, Mamallapuram has filed charge sheet U/s 376, 417
IPC r/w 3(1) (xii) of Scheduled Caste/Scheduled Tribe (Prevention of
Atrocities) Act. The learned Judicial Magistrate No. I, Chengalpattu took up
the charge sheet on his file as P. R. C No. 34/2002. After furnishing the
copies of records relied on by the Prosecution to the Appellant/Accused as
per the provisions of Sec. 207 of Cr. P.C., the learned Judicial Magistrate
No. I, Chengalpattu has committed the case to the Court of the learned
Principal Sessions Judge, Kancheepuram at Chengalpattu u/s. 209 of
Cr.P.C., since the offence U/s. 376, 417 IPC r/w 3(1) (xii) of Scheduled
Caste/Scheduled Tribe (Prevention of Atrocities) Act is exclusively triable by
the Court of Sessions. The Court of learned Principal Sessions Judge,
Kancheepuram at Chengalpattu took up the case as S.C.No.134/2005. After
perusing the records and hearing the arguments of both sides, since prima
facie case was made out against the Appellant/Accused, the trial Judge had
framed charges U/s 376, 417 IPC r/w 3(1) (xii) of Scheduled
Caste/Scheduled Tribe (Prevention of Atrocities) Act against the
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Appellant/Accused.
2.2. To prove the guilt of the Appellant/Accused, the prosecution has
examined 12 witnesses as P.W-1 to P.W-12 and marked Exhibits P-1 to P-
13. No Material Object has been marked. No witness was examined and no
exhibits have been marked.
2.3.On considering the rival submission of both sides and on persual
of the evidence and documents, the learned Principal Sessions Judge had
found the Accused guilty for an offence punishable under Section 417 of
IPC and the Appellant/Accused was Convicted and sentenced to undergo
one year Rigorous Imprisonment for an offence U/s.417 I.P.C. He also
directed to pay an amount of Rs.3,00,000/ towards compensation U/s 357(3)
Cr.P.C. The period of already undergone is ordered to be set off U/s 428
Cr.P.C. The Appellant/Accused found not guilty for an offences U/s.376 IPC
and 3(1) (xii) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities)
Act and acquitted from the said charges. The amount of compensation of
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Rs.3,00,000/- shall be paid to the victim.
Aggrieved by the judgment of conviction and sentence imposed on the
Accused, this Criminal Appeal had been filed.
3.The learned Counsel for the Appellant submitted that the judgment
of the learned Principal Sessions Judge, Kancheepuram District at
Chengalpattu, in S.C.No.134 of 2005 is perverse as the offence under
Section 417 of Indian Penal Code is not at all attracted as per the ingredients
of Section 415 of IPC. The learned Counsel for the Appellant invited the
attention of this Court to the charges framed against the Appellant/Accused
at the commencement of the trial under Sections 376, 417 of IPC read with
3(1) (xii) of Scheduled Caste/Schedule Tribe (Prevention of Atrocities) Act.
4.After completion of the trial and on appreciation of the evidence, the
learned Judge had acquitted the Appellant/Accused under Section 376 of
IPC and Section 3(1) (xii) of Scheduled Caste/Scheduled Tribe (Prevention
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of Atrocities) Act and had convicted the Appellant/Accused for offence
under Section 417 of IPC, imposing sentence of imprisonment and
compensation of Rs.3 lakhs to be paid to the victim.
5.The learned Counsel for the Appellant invited the attention of this
Court to attract Section 417 of IPC. In this case, no such materials are
available from the evidence of the Prosecution witnesses. Also, the learned
Counsel for the Appellant invited the attention of this Court to the Medical
Certificate under Ex.P-13. The Doctor P.W-12, who had examined the
Complainant/victim had taken advantage of the notes made on the Accident
Register as“alleged to have had relationship with a known person for the
past one year”.
6.The learned Counsel for the Appellant submitted that as per the
charge sheet, from 06.01.2002 the Appellant was alleged to have been in a
relationship with the victim/Complainant. Further, the learned Counsel for
the Appellant invited the attention of this Court to para 17 of the judgment
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and to the evidence of the Investigation Officer that the Doctor Certificate
was not marked through the Doctor but was marked through the
Investigation Officer, which was objected by the learned Counsel for the
Appellant/Accused before the Trial Court.
7.The learned Counsel for the Appellant invited the attention of this
Court to the observation of the learned Trial Judge that the
Appellant/Accused had not subjected himself to DNA test and had drawn
adverse inference. Learned Counsel submitted that the victim/Complainant
in this case has moved Crl.O.P.No.36969 of 2007 and the same was
dismissed by order dated 16.02.2010 with the following observations:
“13.However, in the circumstances of the case, it would be open for the trial Court to consider whether the conduct of a DNA test would serve the interest of justice. DNA testing has been found to be scientifically accurate. Of course, it was submitted by the learned counsel for the 3rd respondent that requiring the Appellant/Accused to submit himself to a DNA test would amount to testimonial compulsion. The constitutional Bench of the Honourable Apex Court in State of Bombay v. Kathi Kalu Oghad AIR 1961 Supreme Court Cases 1808 has held as follows:
"(16)In view of these considerations, we have come to the following conclusions:-
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(1)An Appellant/Accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the Appellant/Accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the Appellant/Accused person had been compelled to make the impugned statement.
(2)The mere questioning of an Appellant/Accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.
(3)'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the Appellant/Accused.
(4)Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showings parts of the body by way of identification are not included in the expression 'to be a witness'. (5)'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
(6)'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person Appellant/Accused of an offence, orally or in writing. (7)To bring the statement in question within the prohibition of Art.20(3), the person Appellant/Accused must have stood in the character of an Appellant/Accused person at the time he made the statement. It is not enough that he should become an Appellant/Accused, any time after the statement has been made."
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Thus, the position is quite clear that requiring an Appellant/Accused to submit himself to a DNA test would not amount to testimonial compulsion. The above observations are not meant to impose any particular conduct on the trial Court and the lower Court will deal with the case on merits.”
8.In the light of the reported ruling in S.Vidhya -vs- State by Deputy
Superintendent of Police, Mamallapuram, Kancheepuram and others
reported in 2010 (2) MWN (Cr.) 263, the observation made by the learned
Principal Sessions Judge is to be treated as perverse. Further, the learned
Counsel for the Appellant invited the attention of this Court to a reported
judgment of the Hon'ble Supreme Court in Criminal Appeal No.13 of 2016
[Tilak Raj -vs- The State of Himachal Pradesh] arising out of
SLP(Crl.)No.4896 of 2015, dated 06.01.2016.
9.In the light of the above, the learned Counsel for the Appellant seeks
to set aside the judgment of conviction imposed on the Appellant by the
learned Principal Sessions Judge, Kancheepuram District at Chengalpattu,
as it is perverse.
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10.The legal Aid Counsel nominated by the Tamil Nadu Legal Aid
Committee submits that apart from the submission made by the learned
Counsel for the Appellant, in the course of trial, there was evidence before
the Trial Court that there was a Panchayath convened regarding this dispute
in the village before filing of complaint. In the Panchayath by the village
President by name, Ethiraj, who had convened the Panchayath regarding
the dispute. On that scope, the learned Judge failed to consider the materials
available before the Trial Court. The Panchayath President Ethiraj was not
examined as a witness by the Prosecution. There was suppression of fact by
the prosecution.
11.In that Panchayath, it is stated that the prosecutrix had accepted
that she had been in a consensual relationship with the Appellant/Accused.
Further, the learned Counsel for the Appellant invited the attention of this
Court that at the initial stage of the registration of the case, the provisions of
Scheduled Caste/Schedule Tribe (Prevention of Atrocities) Act was not at all
invoked. During the cross examination of P.W-1, she had clearly admitted
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that she had not stated anything regarding community in the complaint.
Only in the course of the investigation, it was found out that the
Appellant/Accused and the Complainant belong to different communities.
Therefore, the Investigation Officer herself had invoked the provision of
Scheduled Caste/Schedule Tribe (Prevention of Atrocities) Act at the initial
stage of the investigation forwarded the alteration report invoking provisions
of Scheduled Caste/Schedule Tribe (Prevention of Atrocities) Act. Later on,
the Deputy Superintendent of Police took up the investigation after the
alteration of the charge, invoking the provisions of Scheduled
Caste/Schedule Tribe (Prevention of Atrocities) Act. Learned Counsel for the
Appellant submitted that the Investigation Officer, in her cross examination,
submitted that the Appellant/Accused did not have the intention of cheating.
He had taken the marriage proposal into consideration. Therefore, the
provision of 415 IPC is not accepted. In the light of the cross examination of
P.W-1 and the conviction of the Appellant/Accused under 417 of IPC by the
learned Judge is to be treated as perverse and the same is to be set aside.
12.The learned Counsel for the Appellant also invited the attention of
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this Court to the second provision of Section 417 of IPC. If this Court
considers the Appeal lacks merit, then the second provision may be
considered.
13.The learned Additional Public Prosecutor appearing for the
Respondent vehemently objected to the submission of the learned Counsel
for the Appellant stating that earlier order of this Court dated 26.04.2023,
stated that the Police were directed to secure the Appellant/Accused and
produced him before this Court on 08.06.2023, and had appointed Legal
Aid Counsel to proceed with the Appeal on 08.06.2023. When the Station
House Officer of the Respondent Police Station visited the address
mentioned in the charge sheet and in the judgment, it was found that the
Appellant/Accused had shifted his residence and his whereabouts is not
known in the village. Therefore, the Station House Officer had obtained
certificate from the Village Administrative Officer. The Respondent Police
was unable to secure the Appellant/Accused because of the conduct of the
Appellant/Accused in shifting his residence and not informing the
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Respondent Police. Also, in the facts of this case, when the Trial Court
convicted the Appellant/Accused and imposed compensation, the
compensation amount had to be paid. Here is the case, the
Appellant/Accused had paid Rs.75,000/- only out of Rs.3 lakhs ordered as
compensation but had not paid the entire compensation all these years. Only
Rs.75,000/- is remaining in the Court deposit of the learned Sessions Judge,
Kancheepuram at Chengalpattu.
14.Heard the learned Counsel for the Appellant, the learned
Additional Public Prosecutor appearing for the Respondent and perused the
documents.
15.On consideration of the rival submissions and on perusal of the
evidence and the documents, the submission of the learned Counsel for the
Appellant cannot at all be accepted in the light of the evidence of the
Prosecutrix P.W-1. The Appellant herein had physical intimacy with the
Prosecutrix on the pretext of marrying her. When she informed the
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Appellant that she is four months pregnant, the Appellant stopped visiting
the Prosecutrix. The repeated request of the Prosecutrix did not help her.
Therefore, she was forced to file complaint. Based on which, FIR was
registered. She had fairly conceded in her cross-examination that in her
complaint, she did not mention about the caste or discrimination based upon
caste to attract the offence under Section 3(1)(xii)of SC/ST (PoA) Act.
16.In the ruling relied upon by the learned Counsel for the Appellant
in S.Vidhya -vs- State by Deputy Superintendent of Police,
Mamallapuram, Kancheepuram and others reported in 2010 (2) MWN
(Cr.) 263, the observation of the learned Judge of this Court that the
Petitioner has the liberty to approach the trial Court. But had not exercised
that option will not go against the Prosecutrix or in favour of the Appellant.
The learned Counsel for the Appellant invited the attention of this Court to
the defence of the Appellant/Accused/Appellant during trial that the
Prosecutrix had physical relationship with Anandan, Siva, Ravi and with her
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own paternal uncle. If that be so, the Appellant need not have second
opinion. He could have very well subjected himself to DNA Test but he had
not done so. The Appellant who is alleged to have had physical relationship
with the Prosecutrix had stopped visiting her after she informed him that she
was four months pregnant. In the course of cross-examination she had
clearly stated in Tamil that the Appellant/Accused touched her and she had
begotten a child, by the time the trial came before the Court, the child was 5
years old. Therefore, she was waiting to marry her. That part of evidence of
a woman cannot be rejected by any Court. After having relationship with a
woman resulting in sexual intercourse and cheating the very same woman
claiming that she is immoral cannot be accepted and appreciated by any
court of law. By promising to marry a woman, a man makes her believe that
he will marry her and after having intercourse with her, when she developed
pregnancy he cheating her and then claiming that she is immoral cannot be
appreciated by any Court of law. If it is so, she is to be branded as
prostitute. If she is to be branded as prostitute, the man who had intercourse
with her accepts that he had relationship with her. If he denies that there is
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no relationship with her, he need not fear for subjecting himself to DNA test.
Here in this case, he had taken time to marry her as per the evidence of the
Investigation Officer – P.W-11 Asi Ammal. Repeatedly the
Appellant/Accused had been taking time. Therefore, his intention was to
cheat her. In that scenario, the finding of guilt recorded by the learned
Sessions Judge, Kancheepuram at Chengalpattu cannot be faulted.
17.In the course of the argument, the learned Counsel for the
Appellant invited the attention of this Court to the provision of Section 417
of IPC and to the provision of Section 415 of IPC. The submission of the
learned Counsel for the Appellant that the Prosecutrix had not parted with
anything to attract the ingredients of Section 415 cannot at all be accepted.
The Appellant/Accused was attracted to the physical beauty of the
Prosecutrix and if she had been immoral, she might not have come forward
by filing the complaint. He had promised to marry her. A woman of normal
human conduct will not subject herself to sexual intercourse with a man who
has no acquaintance with her. Here the facts are that the Appellant and the
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Prosecutrix had been acquainted with each other. He had offered to marry
her. When she refused, he promised to marry her and had intercourse.
When she informed that she had developed pregnancy and she is at the
fourth month pregnancy, he had stopped visiting her. If the ingredients of
Section 415 of IPC as pointed out by the learned Counsel for the Appellant
is to be accepted she had not parted with anything cannot at all be accepted.
She had parted with her reputation, self-respect which was exploited by the
cunning words of the Appellant/Accused. After enjoying sex with the
victim/Prosecutrix the attempt of the Appellant/Accused that he is not the
father of the child and she had intercourse with several persons cannot at all
be accepted. In the circumstances that when he suggests the names of
several individuals having relationship with the Prosecutrix, then he ought to
have subjected himself to DNA test. He did not go for that. Therefore, the
learned trial Judge is within his powers as a trial Judge to draw adverse
inference against the Accused/Appellant herein. Before concluding the
arguments, the learned Counsel for the Appellant submitted that as per the
second part of Section 417 of IPC it is either sentence of imprisonment or
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fine. If that is to be considered, the Appellant shall pay the balance of
Rs.3,00,000/- (Rupees Three Lakhs only) before the Court of the learned
Sessions Judge, Kancheepuram at Chengalpattu.
18.The conduct of the Appellant/Accused is not appreciated by this
Court. Having suffered conviction and sentence before the trial Court, he
had appealed before the High Court. On admission of the appeal, the
Appellant/Accused was granted bail. This Court had directed the Appellant
to deposit Rs.75,000/- and he had deposited Rs.75,000/- but he had not
deposited the entire compensation amount as ordered by the trial Judge.
Further, he had not prosecuted the appeal and he had absconded.
19.Therefore, this Court directed the learned Counsel for the
Appellant to produce the Appellant/Accused/Appellant before this Court on
10.07.2023. On 10.07.2023, the Appellant was produced by the learned
Counsel for the Appellant by 2.15 p.m. in the Chamber. The Appellant was
warned that if he evades due process, directions will be issued by this Court
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to the Respondent Police/Inspector of Police, Thazhambur Police Station,
Kancheepuram District, Tambaram Commissionerate to publish the photo as
well as the details of the Appellant as absconding Appellant/Accused and to
secure him. The Appellant/Accused was also warned that whenever he
shifts his residence he is duty bound to inform the same to the Respondent
Police till the disposal of this Appeal.
20.On 17.07.2023, the learned Additional Public Prosecutor, learned
Counsel for the Appellant, Appellant and the Sub Inspector of Police,
Thazhambur Police Station, Kancheepuram District, Tambaram
Commissionerate are present in Chamber. As per the letter received by the
Sub Inspector of Police, Thazhambur Police Station, Kancheepuram District,
Tambaram Commissionerate, the Complainant states that as per the
judgment, Rs.3,00,000/- (Rupees Three Lakhs) was imposed on the
Appellant/Accused as compensation but till date, the Complainant had not
received the same.
https://www.mhc.tn.gov.in/judis Crl. Appeal No. 688 of 2016
21.As per the submission of the learned Additional Public Prosecutor,
even tough the trial Court directed the Appellant/Accused to deposit
Rs.3,00,000/- under Section 357 of Cr.P.C., at the time of seeking
suspension of sentence, it was directed to deposit only Rs.75,000/- and the
Appellant/Accused deposited only Rs.75,000/- into the Court deposit. Even
after so many years, he had not paid the full amount. Before winding up the
argument, the learned Counsel for the Appellant would submit that after this
long period if the Court is not satisfied on the grounds of appeal raised by
the Appellant, the Court may consider conversion of imprisonment as
compensation instead of confirming the judgment of conviction.
22.In the light of the above submission, the Appellant/Accused was
directed to deposit Rs.4,00,000/- (Rupees Four Lakhs only) in S.C.No.134
of 2005 on the file of the learned Principal District and Sessions Judge,
Kancheepuram at Chengalpattu on or before 28.07.2023.
23.In continuation of the order passed on 17.07.2023, today
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Mr.V.Krishnamoorthy, learned Counsel who appeared earlier for the
Appellant and Mr.K.Ethirajulu, learned Counsel for the Appellant
nominated by the High Court Legal Services Committee, the learned
Additional Public Prosecutor appearing for the Respondent, the
Appellant/Accused and the Sub Inspector of Police, Thazhambur Police
Station along with CD file in Crime No.11 of 2002 are present. The learned
Counsel for the Appellant deposited a sum of Rs.4,00,000/= (Rupees Four
Lakhs only) in the Crime No.11 of 2002 before the Court of the learned
Principal Sessions Judge, Kancheepuram at Chengalpattu. He has also
produced the original receipt bearing No.20/2023 dated 26.07.2023.
24.In the light of the arguments advanced by the earlier Counsel for
the Appellant Mr.V.Krishnamoorthy as well as the nominated Counsel
Mr.K.Ethirajulu, this Court is inclined to confirm the judgment of the trial
Judge but modify the judgment instead of sentence of imprisonment
awarded by the learned Principal Sessions Judge, Kancheepuram at
Chengalpattu in S.C.No.134 of 2005, the offence under Section 417 of IPC
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for which the Appellant/Accused was convicted and for the offence under
Sections 376 of IPC and Section 3(1)(xii) of SC/ST (PoA) Act, were
acquitted. The judgment of conviction under Section 417 of IPC is
confirmed. The argument of the learned Counsel for the Appellant that the
ingredients of offence under Section 417 of IPC is not rejected and the same
is confirmed in the light of the developments after the date of judgment.
Considering the well-being of the Prosecutrix a report was called for by this
Court through the Sub Inspector of Police, Thazhambur and she had given a
statement to the Sub Inspector of Police that till date she is unmarried and
she had given birth to a girl child who is now at 20 years old.
25.In the light of the above discussion, this Criminal Appeal is
partly allowed and the sentence of imprisonment and compensation
awarded by the learned Sessions Judge, Kancheepuram at Chengalpattu in
S.C.No.134 of 2005, dated 02.09.2016 is modified as follows:
(a) Instead of confirming the judgment of conviction, it is
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modified as compensation to be paid to the Prosecutrix viz., a
sum of Rs.4,00,000/- (Rupees Four Lakhs only).
(b) The period already undergone by the Appellant in
remand in Crime No.11 of 2002 on the file of the Respondent
Police is considered as sentence.
(c) The sentence of of imprisonment already undergone
by the Appellant/Accused is treated as imprisonment.
26.As per the direction of this Court dated 17.07.2023, the Appellant
had deposited the amount in S.C.No.134 of 2005 on the file of the learned
Principal Sessions Judge, Kancheepuram at Chengalpattu, on 26.07.2023.
27.The learned Principal Sessions Judge, Kancheepuram at
Chengalpattu is directed to permit the Prosecutrix/Complainant in
S.C.No.134 of 2005 to withdraw the entire amount viz., R.4,75,000/-
(Rupees Four Lakhs and Seventy Five Thousand only) available in the Court
deposit. Intimation shall be sent to the Prosecutrix through the Sub
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Inspector of Police, Thazhambur Police Station by issuing notice to the
Prosecutrix and also assist her in withdrawing the amount from the office of
the Principal Sessions Judge, Kancheepuram at Chengalpattu.
28.Compliance report shall be submitted to this Court by the learned
Principal Sessions Judge, Kancheepuram at Chengalpattu.
Call the case on 08.08.2023 for reporting compliance.
01.08.2023
cda/srm Internet:Yes/No Index:Yes/No Speaking/Non-speaking order
Note: Issue order copy on 02.08.2023
To
1.The Principal Sessions Judge,
https://www.mhc.tn.gov.in/judis Crl. Appeal No. 688 of 2016
Kancheepuram at Chengalpattu.
2.The Additional Public Prosecutor, Madras High Court, Madras.
SATHI KUMAR SUKUMARA KURUP, J.,
https://www.mhc.tn.gov.in/judis Crl. Appeal No. 688 of 2016
cda/srm
Crl.A.No.688 of 2016
01.08.2023
https://www.mhc.tn.gov.in/judis
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