Madras High Court

Thennarasu vs State Rep. By on 7 December, 2023

                                                                                 Crl.A.No.653 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 07.12.2023

                                                   CORAM :
                                     THE HON'BLE MR.JUSTICE SUNDER MOHAN

                                                 Crl.A.No.653 of 2017


                    Thennarasu                      .. Appellant / A1


                                                           v.


                    State rep. by
                    The Inspector of Police,
                    All Women Police Station,
                    Villupuram.
                    (Crl.No.10/2015)                      .. Respondent/complainant

                              Criminal Appeal filed under Section 374(2) of Code of Criminal
                    Procedure, 1973, to call for the records in connection with S.C.No.163 of
                    2016 on the file of the learned Sessions Judge, Mahalir Neethi Mandram [Fast
                    Track Mahila Court], Villupuram and set aside the conviction and sentence
                    imposed in judgment dated 26.09.2017.

                              For Appellant         : Mr.S.Saravana Kumar

                              For Respondent        : Mr.A.Gokulakrishnan
                                               Additional Public Prosecutor


                                                           1


https://www.mhc.tn.gov.in/judis
                                      Crl.A.No.653 of 2017




                                  2


https://www.mhc.tn.gov.in/judis
                                                                                       Crl.A.No.653 of 2017

                                                      JUDGMENT

This Criminal Appeal has been filed by Accused No.1, challenging the

conviction and sentence imposed upon him vide judgment dated 26.09.2017

in S.C.No.163 of 2016, on the file of the learned Sessions Judge, Mahalir

Neethi Mandram (Fast Track Mahila Court), Villupuram.

2 (i) It is the case of the prosecution that the brother of the victim and

the appellant/A1 were friends and that the appellant used to come to the house

of the victim to meet her brother; that because of the frequent visits to the

house, the victim and the appellant became close to each other; that the

appellant promised the victim that he would marry her and had sexual

intercourse; that when the victim asked the appellant and his parents to make

arrangements for the marriage, they refused stating that the victim was not

educated; and that further, threatened her of dire consequences, if she insisted

on getting married with the appellant.

(ii) It is the further case of the prosecution that on 28.04.2015, the

victim gave complaint [Ex.P1] to the Inspector of Police, All Women Police

Station, [PW11] and a case was registered in Cr.No.10 of 2015 for the offence

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

punishable under Sections 417, 376 and 506(i) IPC, against the appellant and

his parents. FIR was marked as Ex.P9.

(iii) After registration of the FIR, PW11 commenced the investigation

and examined the witnesses. She arrested the accused on 28.04.2015 at about

9pm. On 29.04.2015, PW11 gave the requisition letter for sending the

accused and the victim for medical examination. The said requisition letter

was marked as Ex.P10. On 29.04.2015, PW11 proceeded to the place of

occurrence and prepared the Observation Mahazar (Ex.P2) and Rough Sketch

(Ex.P11) in the presence of the witnesses. Thereafter, she went to the house

of the appellant and prepared the observation mahazar (Ex.P12) and Rough

Sketch (Ex.P13). She thereafter examined the other witnesses on 10.05.2015.

She examined the doctors who had examined the victim and the appellant.

(iv) Thereafter, PW11 handed over the investigation to PW12 who laid

the final report after the completion of the investigation in PRC No.25 of 2015

before the learned Judicial Magistrate No.I, Villupuram, as against all the

accused under Sections 376 and 417 of IPC.

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

(v) On appearance of the appellant/A1 and other accused, the provisions

of Section 207 Cr.P.C. were complied with and the case was committed to the

Principal Sessions Judge, Villupuram and thereafter, transferred to the

Sessions Court, Mahalir Neethi Mandram [Fast Track Mahila Court],

Villupuram, in S.C.No.163 of 2016, for trial. The trial Court framed charges

u/s.376 and 417 of IPC as against appellant/A1 and u/s.506(i) of IPC as

against accused 2 and 3, the parents of the appellant and when questioned, the

accused pleaded 'not guilty'.

(vi) To prove the case, the prosecution examined 12 witnesses and

marked 15 exhibits. When the appellant and other accused were questioned

u/s.313 Cr.P.C. on the incriminating circumstances appearing against them,

they denied the same. No witness was examined on the side of the appellant or

other accused, nor any document marked.

(vii) On appreciation of oral and documentary evidence, though the trial

Court acquitted the appellant/A1 for the offence under Sections 376 and A2

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

and A3 for the offence under Section 506(i) of IPC, convicted the

appellant/A1 for the offence under Section 417 IPC and sentenced him to

undergo rigorous imprisonment for one year and pay fine of Rs.50,000/- in

default to undergo Simple Imprisonment for three months. Hence, the A1 has

preferred the appeal challenging the said conviction and sentence.

3. The learned counsel for the appellant/A1 submitted that the allegation

with regard to false promise of marriage cannot be believed; that the victim

and the appellant were in love with each other and they became acquainted

because the victim's brother was the appellant's close friend; that the victim

had admitted in her deposition before the Court that she was in love with the

appellant; that therefore, her consent for sexual intercourse with the appellant

was not due to any misrepresentation made by the appellant, but due to her

acquaintance with him; and hence, prayed for setting aside the fining of the

trial Court holding that the appellant is guilty of the offence under Section 417

of IPC.

4. The learned Additional Public Prosecutor, per contra submitted that

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

the trial Court after considering the oral and documentary evidence found the

appellant not guilty of the offence under Section 376 of IPC and had rightly

held that the appellant had deceived the victim, thereby induced her to have

sexual intercourse with him and accordingly, convicted him for the offence

under Section 417 of IPC. Therefore, the learned Additional Public

Prosecutor submitted that no interference is called for with the finding of the

trial Court.

5. This Court on perusal of the records finds that the prosecution had

examined PW2 to PW4, the relatives of the victim to prove the friendship

between the victim and the appellant/A1. PW2, PW3 and PW4 are the sister,

brother and mother of the victim, respectively. PW5 and PW8, belong to the

same village and they turned hostile. PW6 and PW7 are Mahazar witnesses.

PW9 is the Doctor who had examined the victim. PW10 is the Doctor, who

had examined the appellant.

6. From the above, it will be clear that the prosecution relies upon the

evidence of PW1 to prove the offence of cheating said to have been committed

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

by the appellant. The other witnesses viz., PW2, PW3 and PW4 are hearsay

witnesses. PW1, had admitted in her deposition that she was closely

acquainted with the appellant. Though, she has stated that appellant had

compelled her, she admits that she was in love with the appellant. The

relevant portion are extracted hereunder for better understanding.

“mof;fo 1k;; vjphp vd;id tw;g[Wj;jp te;jjhy; ehDk; mtiu

fhjypj;J te;njd;/”

Thereafter, PW1 would state that the appellant forced her to have sexual

intercourse and that she had sexual intercourse with the appellant on more

than four or five occasions; that the said relationship was known to the

neighbours and thereafter, when she asked the appellant to marry her, he

refused stating that she was not educated.

7. The evidence of the victim suggests that the consent given by her for

the sexual intercourse is not due to any misrepresentation or alleged false

promise made by the appellant. Her further evidence that the appellant

forcibly had sexual intercourse with her, has been disbelieved by the trial

Court.

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

8. As stated earlier, admittedly, the victim had physical relationship

with the appellant on more than five occasions and there is nothing in the

evidence to suggest that she gave consent only due to the promise of marriage.

She was in love relationship with the appellant and therefore, this Court is of

the view that the offence of cheating is not made out in the facts and

circumstances of the case. In this regard, it is useful to refer to the observation

made by the Hon'ble Supreme Court in Deepak Gulati v. State of Haryana

reported in [(2013) 7 SCC 675], which is extracted hereunder.

“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 intercourse on account of her love and passion for 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.”

9. In the instant case, even assuming that the appellant had promised

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

that he would marry the victim, the consent cannot be said to be only due to

the alleged false promise. The consent was due to her close acquaintance with

the appellant and therefore, for the aforesaid reasons, the finding of the trial

Court holding the appellant guilty for the offence under Section 417 of IPC, is

liable to be set aside.

10. In the result, this Criminal Appeal is allowed and the appellant/A1 is

acquitted of the charge u/s.417 of IPC and he is directed to be set at liberty

forthwith, unless his conviction is required in connection with any other case.

The conviction and sentence passed in S.C.No.163 of 2016 on the file of the

learned Sessions Judge, Mahalir Neethi Mandram [Fast Track Mahila Court],