Madras High Court

Rajesh vs The State Represented By on 6 December, 2023

                                                                               Criminal Appeal No.687 of 2017

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                        Dated : 06.12.2023

                                                              CORAM


                                   THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                                Criminal Appeal No.687 of 2017


                     Rajesh                                           ...Appellant/Accused No.1

                                                               Vs.

                     The State Represented by
                     Inspector of Police,
                     All Women Police Station,
                     Gingee, Villupuram District.
                     Crime No.04 of 2015.                             ...Respondent/Respondent

                                  Criminal Appeal filed u/s.374(2) of the Code of Criminal Procedure
                     against the conviction and sentence passed by the Sessions Judge, Magalir
                     Neethi Mandram, (Fast Track Court), Villupuram in S.C.No.238 of 2016
                     dated 06.10.2017.


                                       For Appellant      :     Mr.C.Prabakaran
                                       For Respondent     :     Mr.A.Gokulakrishnan
                                                                Additional Public Prosecutor




                     1/12



https://www.mhc.tn.gov.in/judis
                                                                                   Criminal Appeal No.687 of 2017



                                                          JUDGMENT

The appellant has challenged the Judgment of conviction and sentence

imposed on him dated 06.10.2017 passed by the learned

Sessions Judge, Magalir Neethimandram, (Fast Track Court), Villpuram in

S.C.No.238 of 2016. The appellant was convicted and sentenced by the Trial

Court as follows:-

Conviction Sentence Sections 376, 294(b) Accused No.1 is not found guilty and 506(i) of IPC Section 417 of IPC To undergo one year Rigorous Imprisonment and to pay a fine of Rs.50,000/-, in default, to undergo Rigorous Imprisonment for Three months.

2(i). The case of the prosecution is that the victim and the appellant

were classmates in 12th Standard in Alampondi Government High

Secondary School in the year 2010; that thereafter, the victim discontinued

her studies; that the appellant promised the victim that he would marry her

and allow her to pursue higher studies; that the victim was working in a

textile shop in Chennai; that whenever she went to her village the 1st

accused/Appellant had sexual intercourse with her on several occassions;

that when the victim came to know that the 1st accused/Appellant decided to

https://www.mhc.tn.gov.in/judis Criminal Appeal No.687 of 2017

marry another girl, she confronted the appellant; that the parents of victim

convened Panchayat and in the Panchayat it was decided that both of them

should get married; and that thereafter the parents of the victim went to the

house of the appellant and asked him to marry her but the 1st

accused/Appellant refused.

(ii). It is the further case of the prosecution that on 26.03.2015 the

victim gave a complaint and the respondent police registered the same in

CSR.61 of 2015 and that on 30.03.2015 an FIR (Ex.P.7) was registered in

Crime No.04 of 2015 for the offences punishable under

sections.417,376,294(b),506(i) of IPC. P.W.10 the Inspector of Police took

up the case for investigation and proceeded to the place of occurrence and

prepared Observation Mahazar and Rough sketch (Ex.P.2 and Ex.P.8). He

examined other witnesses and sent the victim and the appellant for medical

examination. After medical examination, the Inspector of Police (P.W.10)

filed a final report before the Judicial Magistrate, Gingee for the offences

under sections.417,376,294(b),506(i) of IPC, against the appellant and

Accused No.2/father of the appellant.

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(iii) On appearance of the accused, the provisions of Section 207 of

Cr.P.C. were complied with and the case was committed to the Court of

Session in S.C.No.238 of 2016 and was made over to the Sessions Court,

Magalir Neethi Mandram (Fast Track Mahila Court), Villupuram, for trial.

The trial Court framed charges u/s.376, 417, 294(b) and 506(i) of IPC as

against this appellant and when questioned, the appellant pleaded 'not

guilty'.

(iv) To prove the case, the prosecution examined 10 witnesses and

marked 14 exhibits. When the appellant was questioned u/s.313 of Cr.P.C.

on the incriminating circumstances appearing against him, he denied the

same. The appellant had examined himself as D.W.1.

(v) The trial court after considering the oral and documentary evidence

found that the appellant's father i.e., Accused No.2 was not guilty of the

offences under sections 506(i) & 417 of IPC and the appellant was not

found guilty of the offences under section 376, 294(b) and 506(i) of IPC.

The trial Court however found the appellant guilty of the offence under

https://www.mhc.tn.gov.in/judis Criminal Appeal No.687 of 2017

section 417 of IPC and sentenced him to undergo one year Rigorous

Imprisonment and to pay a fine of Rs.50,000/-, in default, to undergo

Rigorous Imprisonment for Three months.

3. The learned counsel for the appellant submitted that the evidence of

P.W.1 would show that the consent for sexual intercourse given by the victim

to the appellant is not due to the alleged false promise and the victim herself

had stated that the appellant would not agree for marriage and therefore

refused for sexual relationship, initially. The learned counsel further pointed

out the evidence of the victim that the appellant forcibly had sexual

intercourse with her. This is contrary to the prosecution case that the victim

was deceived by the appellant by way of false promise. The learned counsel

for the appellant further submitted that the evidence of Appellant (D.W.1)

would show that there was no panchayat held as stated by the prosecution.

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4. The learned Additional Public Prosecutor submitted per contra

submitted that the trial Court had rightly convicted the appellant for the

offence under section 417 of IPC and there is no interference called for with

the said judgement of the trial Court.

5. Heard the learned counsel for the appellant as well as the learned

Additional Public Prosecutor for the respondent/state and perused the

materials available on record.

6. On perusal of the records, this court finds that the victim examined

as P.W.1 has spoken about the relationship between her and the appellant.

She had also stated about the holding of panchayat when the appellant

refused to marry her. P.W.2 and P.W.3 have also spoken about the

Panchayat.

7. The evidence of P.W.2 and P.W.3 about the relationship of the

https://www.mhc.tn.gov.in/judis Criminal Appeal No.687 of 2017

victim and the appellant, is hearsay. P.W.6,7 and 8 speak about the

Panchayat, said to have been held when the appellant refused to marry the

victim. The other witnesses are official witnesses and the doctors who had

examined the victim and the appellant.

8. From the above narration of facts it could be seen that the

prosecution sought to prove the offence under section 417 of IPC through

the evidence of victim P.W.1. The evidence of victim (P.W.1) would show

that the victim and the appellant were classmates in school from 1st standard

to 12th standard. They were close to each other. The evidence also suggest

that the appellant was in regular touch with the victim, even after she went

to Chennai for job. P.W.1 would further state that when the appellant

insisted on getting married to the victim she refused stating that the

appellant's parents would not agree for the same; and that thereafter, the

appellant forcibly had sexual intercourse with the victim. However, the

version of P.W.1 with regard to forcible sexual intercourse has been

disbelieved by the trial Court.

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9. From the overall reading of the evidence of P.W.1, it is clear that the

sexual relationship between the victim and the appellant was not due to the

alleged false promise made by the appellant with regard to marriage. The

victim was aware of the consequences of the relationship that she had with

the appellant. It is trite law unless the victim had given consent for sexual

intercourse due to false promise, the offence of deception/cheating would not

be made out. This Court is reminded of the observations of the Hon’ble

Supreme Court in this regard in Deepak Gulati vs State of Haryana

reported in (2013) 7 SCC Page.682 Para.21 wherein, the Hon’ble Supreme

Court had observed as follows:

“21...There is a distinction between the mere breach of

a promise and not fulfilling a false promise. Thus, the court

must examine whether there was made, at an early stage a

false promise of marriage by the accused; and whether the

consent involved was given after wholly understanding the

nature and consequences of sexual indulgence. There may be

a case where the prosecutrix agrees to have sexual

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intercourse on account of her love and passion of the

accused, and not solely on account of misrepresentation

made to her by the accused, or where an accused on account

of circumstances which he could not have foreseen, or which

were beyond his control, was unable to marry her, despite

having every intention to do so. Such cases must be treated

differently.''