Madras High Court
Thirumurugan vs State on 7 June, 2023
CRL.A.(MD).No.114 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.06.2023
CORAM
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
CRL.A.(MD).No.114 of 2016
1.Thirumurugan
2.Thamilarasi
3.Ammakannu
4.Rajeswari ... Appellants/Accused Nos.1 to 4
Vs.
State,
Represented by,
The Inspector of Police,
Manamadurai Police Station,
Sivagangai District.
(Crime No.448 of 2009). ... Respondent/Complainant
PRAYER : Criminal Appeal filed under Section 374(2) of Cr.P.C to set
aside the Judgment and conviction dated 29.03.2016 made by the
learned Sessions Judge, District Fast Track Mahalir Neethimandram,
Sivagangai in S.C.No.74 of 2011 and acquit the appellants/accused.
For Appellants : Mr.S.Sankar
for Mr.S.Karthick
For Respondent : Mr.T.Senthil Kumar
Additional Public Prosecutor
1/12
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CRL.A.(MD).No.114 of 2016
JUDGMENT
This appeal has been preferred as against the
Judgment, dated 29.03.2016 on the file of the learned Sessions
Judge, District Fast Track Mahalir Neethimandram, Sivagangai in
S.C.No.74 of 2011, thereby convicted the appellants for the offence
under Section 376 r/w 109 of I.P.C.
2.The case of the prosecution is that on 01.07.2009 at
about 11.00 a.m., the victim was kidnapped by the accused persons
and forcibly got married to the first accused. Thereafter, the first
accused on compulsion raped her.
3.Based on the complaint, the respondent registered the
F.I.R in Crime No.448 of 2009 for the offences under Sections 341,
366 and 376 of I.P.C as against six accused persons. During the
investigation, the fifth accused died and filed a final report as
against other accused persons. After completion of the
investigation, the respondent filed a final report and the same has
been taken cognizance by the trial Court in S.C.No.74 of 2011 on
the file of the learned Sessions Judge, District Fast Track Mahalir
Neethimandram, Sivagangai and framed charges as against the first
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CRL.A.(MD).No.114 of 2016
accused for the offences under Sections 114, 341, 343, 323 r/w 34,
366 and 376 of I.P.C., as against accused Nos.2 to 4 and accused
No.6 for the offences under Sections 114, 341, 343, 323 /rw 34,
366, 376 r/w 34 of I.P.C.
4.On the side of the prosecution, they had examined
P.W.1 to P.W.13 and marked Exs.P.1 to P.9. The prosecution also
produced material objects M.O.1 and M.O.2 and on the side of the
accused, no one was examined and no documents were exhibited.
5.On perusal of the oral and documentary evidence, the
trial Court found the first appellant guilty for the offence punishable
under Section 376 of I.P.C and found the appellants 2 to 4 guilty for
the offence punishable under Section 376 r/w 109 of I.P.C. The trial
Court acquitted the sixth accused. The first appellant was sentenced
to undergo seven years Rigorous Imprisonment and to pay a fine of
Rs.2,000/- and in default to undergo three months Rigorous
Imprisonment for the offence punishable under Section 376 of I.P.C.
The appellants 2 to 4 were sentenced to undergo three years
Rigorous Imprisonment each and to pay a fine of Rs.1,000/- each
and in default to undergo three months Rigorous Imprisonment
each for the offence punishable under Section 376 r/w 109 of I.P.C.
Aggrieved by the same, the appellants preferred the present appeal.
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CRL.A.(MD).No.114 of 2016
6.The learned counsel appearing for the appellants
would submit that it was an arranged marriage between both the
families of the first accused and the victim. The victim stayed with
the first accused for two weeks. Only because of the intervention
made by the maternal uncle of the victim girl, a false complaint has
been foisted as against the appellants as if she was kidnapped and
got married to the first accused and thereafter, he raped her. The
victim lived with the first accused happily for two weeks and had
physical relationship. He also produced photographs which were
taken during their marriage. Even assuming that the first appellant
committed rape on the victim, the complaint was lodged only after
two days from the date of the alleged occurrence. The appellants
and the victim's family are very close relatives. The victim failed to
support the case of the prosecution in letter and spirit. On physical
verification, the Doctor opined that there were no injuries found on
the body of the victim and there was no evidence of rape. All the
relatives and parents of both the family went to the Temple and got
married. In fact, all the relatives had stayed together for two weeks
and the victim along with the first accused stayed together for two
weeks. That apart, the prosecution failed to prove the age of the
victim, as she was only 15 years old at the time of occurrence.
Though the birth certificate and school certificate were very much
available, the prosecution failed to produce any evidence in order to
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CRL.A.(MD).No.114 of 2016
prove the age of the victim. Therefore, the victim had consented to
physical relationship and as such, the offence under Section 376 of
I.P.C would not at all attract as against the first appellant. In so far
as the charges against the appellants 2 to 4 are concerned, the trial
Court framed charges for the offence under Section 376 r/w 34 of
I.P.C., whereas, they were convicted by the trial Court for the
offence under Section 376 r/w 109 of I.P.C. Sections 34 and 109 of
I.P.C are distinct offences and as such, without any charge as
against the appellants 2 to 4, they cannot be convicted by the trial
Court. Without considering the above facts and circumstances, the
trial Court mechanically convicted the appellants and therefore,
prayed for acquittal of the appellants.
7.Per contra, the learned Additional Public Prosecutor
appearing for the respondent would submit that in order to bring
the charges to home, the prosecution had examined P.W.1 to P.W.13
and marked Ex.P.1 to Ex.P.9. The victim was examined as P.W.2 and
she categorically deposed that she was kidnapped by the accused
and the first appellant tied Thali in the Temple. When they were
compelled to get married to the first accused, she refused and
thereafter, she was under lock and key in the room. Thereafter, she
was kidnapped to the Temple at Ramanathapuram. During the night,
they conducted some poojas and also compelled her to go to Temple
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CRL.A.(MD).No.114 of 2016
the next day to get married to the first accused. She further
submitted that she was born on 04.04.1994 and at the time of
occurrence, she was only 15 years old. They stayed at Manzoor for
two days and she was rapped by the first accused. Therefore, the
prosecutrix categorically deposed to attract the offence under
Section 376 of I.P.C as against the first appellant. The other
appellants also accompanied the first accused and kidnapped the
victim and helped him to have physical relationship with the victim.
Therefore, the trial Court rightly convicted the appellants and
prayed for the dismissal of the appeal.
8.Heard the learned counsel appearing on either side
and perused the materials available on record.
9.According to the case of the prosecution, the victim
was kidnapped by the accused on 01.07.2009 and the first appellant
got married to the victim on 02.07.2009 and thereafter, he
committed rape on her. The mother of the victim lodged a complaint
on 04.07.2009. However, the victim stayed along with the first
appellant for 16 days. After their marriage, they went to the
relative's house and stayed there. Admittedly, the prosecution failed
to prove the age of the victim by proper evidence. The trial Court
concluded that the prosecutrix is below the age of 16 years. The
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CRL.A.(MD).No.114 of 2016
exception provided under Section 375(2) of I.P.C., and it specifically
excludes from the definition of rape any sexual intercourse or sexual
acts by a man with his own wife, the wife not being under 15 years
of age is not raped, when she is a consenting party. If the
prosecutrix is a minor, her consent is not valid consent.
10.On perusal of the deposition of P.W.2 clearly shows
that she had stayed with the first appellant for two days and so
many times, they had physical relationship. Therefore, the offence
under Section 376 of I.P.C is not at all attracted as against the first
appellant. The prosecution failed to produce any age certificate or
school certificate in order to prove the age of the prosecutrix as
below 16 years. Further, on medical examination, the Doctor
certified that there are no external or internal injuries on the body
of the prosecutrix. It clearly establishes that the prosecutrix is a
consented party and there is no forcible physical relationship as
alleged by the prosecution. The medical opinion reads as follows:-
“Conscious, oriented, vitals –
normal. No injuries. Breast developed. Axiliary
hair present. No injuries in the breast. PA soft.
Examination of genitalia. Pubic hair normal.
Vulva normal. No injuries. No foreign hair.
Hymen absent. Introitus admits two fingers
freely. Vagina normal. No injuries. Vaginal
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CRL.A.(MD).No.114 of 2016
smear taken for spermatozoa – No
spermatozoa.”
11.Thus, it is clear that the prosecutrix does not appear
to have put any resistance to the alleged rape committed on her by
the first appellant. From this, the only irresistible interference can
be that the prosecutrix was a consenting party, which would be
reinforced by other circumstances. Therefore, this Court is satisfied
that the trial Court had made an absolutely wrong approach to this
case, has failed to consider the striking circumstances which
demolish the prosecution case and has committed gross error in not
examining the possibility of consent merely on the ground that the
same was not pleaded by the appellants. Such an approach,
therefore, clearly vitiates the order of conviction by the trial Court.
12.Insofar as the appellants 2 to 4 are concerned, they
were neither tried for an offence under Section 376 of I.P.C nor for
an offence under Section 376 r/w Section 109 of I.P.C. However,
surprisingly, the trial Court convicted them for the offence under
Section 376 r/w 109 of I.P.C without even framing any charge under
Section 109 of I.P.C. Section 211 of Cr.P.C., is very clear that
without framing a charge, no one can be convicted and it causes
serious prejudice to the accused. Section 211(4) of Cr.P.C
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CRL.A.(MD).No.114 of 2016
specifically requires that the law and Section of the law against
which the offence is said to have been committed shall be
mentioned in the charge. Therefore, the failure to frame a charge
with regard to the substantive offence of Section 109 of I.P.C has
certainly prejudiced the appellants 2 to 4 before the trial Court.
They were called upon to face the trial only for the offence
punishable under Section 376 r/w 34 of I.P.C. In the absence of a
charge being framed against the appellants 2 to 4 under Section
376 r/w 109 of I.P.C., it would certainly cause prejudice to the
appellants 2 to 4. It was not permissible for the trial Court to convict
the appellants 2 to 4 for the offence punishable under Section 376
r/w 109 of I.P.C and it is illegal and it cannot be sustained against
them.
13.It is also seen from the complaint, which was marked
as Ex.P.1 signed by P.W.1 and P.W.3. Therefore, it is a joint
complaint by P.W.1 and P.W.3. It is unknown to the code of the
Criminal Procedure and it cannot be also sustained. Section 200 of
Cr.P.C contemplates the examination of the complainant. A
Magistrate taking cognizance of an offence on complaint shall
examine on oath of the complainant. If there are more than one
complaint, it will be difficult for the Magistrate to form an opinion for
taking cognizance of an offence. This applies to the power of
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CRL.A.(MD).No.114 of 2016
attorney of two complaints also. Therefore, the joint complaint given
by two persons is not maintainable and cannot be sustained.
14.That apart, the appellants produced photographs and
it is clear that both the family members arranged the marriage
between the victim and the first appellant. They got married in the
Temple and lived together for two weeks. Only on the interception
of the maternal uncle of the victim, a complaint was lodged and the
same was registered by the respondent that too for the offence
under Sections 341, 366 and 376 of I.P.C. Therefore, the offence
under Section 376 of I.P.C is not at all attracted as against the
accused persons. Further, the charges were framed under Section
376 r/w 34 of I.P.C as against the appellants 2 to 4. In fact, Section
34 of I.P.C itself cannot be attracted as against them, since they had
no common intention to rape the victim. The offence under Section
109 of I.P.C would be proper against them. However, the trial Court
framed the charge under Section 376 r/w 109 of I.P.c Therefore, the
conviction under Section 376 of I.P.C as against the first appellant
and the conviction under Section 376 r/w 109 of I.P.C cannot be
sustained as against the appellants 2 to 4 cannot be sustained as
against them. Hence, the conviction and sentence imposed by the
Courts below are liable to be set aside.
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CRL.A.(MD).No.114 of 2016
15.Accordingly, the Judgment made in S.C.No.74 of
2011 dated 29.03.2016 on the file of the learned Sessions Judge,
District Fast Track Mahalir Neethimandram, Sivagangai is set aside
and the Criminal Appeal is allowed. The appellants/Accused Nos.1 to
4 are acquitted. Bail bond if any executed by the appellants/Accused
Nos.1 to 4 shall stand cancelled and a fine amount if paid is ordered
to be refunded to the appellants/Accused Nos.1 to 4 forthwith.
07.06.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
To
1.The Sessions Judge,
District Fast Track Mahalir Neethimandram,
Sivagangai.
2.The Inspector of Police,
Manamadurai Police Station,
Sivagangai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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CRL.A.(MD).No.114 of 2016
G.K.ILANTHIRAIYAN, J.
ps
CRL.A.(MD).No.114 of 2016
07.06.2023
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