Madras High Court

Mohamed Riswi S/O. Abdul Hakkim vs The State Represented By on 23 November, 2023

Crl.A.(MD).No.236 of 2018

IN THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON :25.09.2023 PRONOUNCED ON : 23.11.2023

CORAM:

THE HONOURABLE MR. JUSTICE P.DHANABAL

Crl.A.(MD).236 of 2018
1. Mohamed Riswi S/o. Abdul Hakkim
2. Baritha W/o. Abdul Hakkim ... Appellants /accused
Vs.
The State represented by:
The Inspector of Police,
All Women Police Station,
Keelakkarai,
Ramanathapuram District.
[Cr. No.10 of 2011]. ... Respondent / Complainant

PRAYER: Criminal Appeal has been filed under Section 372 of Criminal

Procedure Code, praying to call for records and set aside the Judgment and

conviction passed in S.C. No.54 of 2014 on the file of the learned Sessions

Judge, Fast Track Mahila Court, Ramanathapuram dated 25.04.2018.

For Appellants : Mr. V. Kathirvelu, Senior Counsel
for Mr. S.M.A. Jinnah
For Respondent : Mr. R. M. Anbunithi,
Additional Public Prosecutor.

1/29

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Crl.A.(MD).No.236 of 2018

ORDER

This Criminal appeal in Crl. A. (MD) No.236 of 2018 has been

preferred by the appellants as against the Judgment and conviction passed in

S.C. No.54 of 2014 by the learned Sessions Judge, Fast Track Mahila Court,

Ramanathapuram dated 25.04.2018, wherein the Trial Court has convicted

the 1st accused for the offences under Sections 417 and 376 and convicted

the 2nd accused under Section 506(2) of IPC.

2. The case of the prosecution in brief is as under:

2.1. For the sake of convenience, the parties are mentioned as per the

rank in Trial Court.

2.2. The 1st accused is the son of the 2nd accused. The 1st accused,

while he was studying engineering, fell in love with the victim/PW1. In the

meantime, the family of the victim was taking steps to the marriage of the

victim. While so, on 28.11.2011, the 1st accused induced the victim by

saying that he would marry her. Believing the words of the 1st accused, on

28.11.2011, at night time, the accused, without the consent of the victim

girl, had intercourse with her. After some time, the said occurrence was

informed to the mother of victim. While so, on 09.12.2011, when the

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parents along with victim, asked the 1st accused to marry the victim girl, 1st

accused refused to marry the victim girl and the 2nd accused caused criminal

intimidation with iron rod. Thereafter, the victim/PW1 had given complaint

/ Ex.P.1 to the concerned police station. PW9, who was the Head Constable

of the said police station, had registered the FIR (Ex.P.6) in Keelakkarai All

Women P.S. Cr. No.10 of 2011. Thereafter, the case was investigated by

PW11 and she examined the witnesses and collected the documents and

thereafter filed final report as against the accused under Sections 417, 376

and 506(2) of IPC.

2.3. Thereafter, the documents relied on by the prosecution were

furnished to the accused U/s.207 of Cr.P.C. and then the learned Judicial

Magistrate No.I, Ramanathapuram had committed the case to the Principal

District and Sessions Judge, Ramanathapuram and in turn, the learned

Principal District and Sessions Judge, Ramanathapuram made over the case

to the Sessions Judge, Fast Track Mahila Court, Ramanathapuram in

Sessions Case No.54 of 2014. Thereafter, the trial Court, after hearing both

sides, has framed charges u/Ss.417 and 376 of IPC as against the 1st accused

and under Section 506(2) of IPC as against the 2nd accused. The charges

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framed against the accused / appellant, were read over and explained to

them and they denied the charges. Thereby, the prosecution examined the

witnesses PW1 to PW11 and marked Ex.P.1 to Ex.P.7. No material objects

were adduced on the side of prosecution. No oral or documentary evidence

were submitted on the side of defence. After completion of prosecution side

evidences, the accused were examined U/s.313(1)(b) of Cr.P.C. with regard

to the incriminating evidence adduced against them and the same was also

denied by the accused as false.

2.4. After hearing both sides and considering oral and documentary

evidence adduced on either side, the Trial Court found the 1st accused guilty

of offences punishable under Sections 417 and 376 of IPC and found the 2nd

accused guilty of offence under Section 506(2) of IPC and convicted the

accused 1 & 2 and

2.4.(i). Sentenced the 1st accused

(a) to undergo one (1) year simple imprisonment and fine amount of

Rs.1000/-. In default, 1 month of simple imprisonment for the offence under

Section 417 of IPC;

(b) to undergo ten (10) years Rigorous imprisonment and fine amount

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of Rs.45,000/-. In default, 1 year of Rigorous imprisonment for the offence

under Section 376 of IPC and

2.4 (ii). and sentenced the 2nd accused

to undergo simple imprisonment for 6 months and fine amount of Rs.

1,000/-. In default, 1 week of simple imprisonment for the offence under

Section 506(2) of IPC. It was also directed by the Trial Court that the

sentences imposed on the accused shall run concurrently and the

imprisonment period already underwent by the accused shall be set off

under Section 428 of Cr.P.C.

2.4.(iii) It was also directed that, out of total fine amount of Rs.

47,000/-, a sum of Rs.46,000/- was directed to be paid to the victim girl as

compensation and the balance amount of Rs.1,000/- was ordered to be

confiscated to the Government.

3. Aggrieved upon the above said Judgment and conviction, the

present appeal has been filed by the accused / appellants on the following

grounds:-

3(i) The Judgment of the Trial Court is contrary to law, weight

of evidence and therefore vitiated.

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3(ii) The sentence of 6 months of simple imprisonment

imposed on the 2nd accused by the Trial Court is unwarranted

and injustice. The Trial Court failed to consider the

contradictions in the evidences of PW1 and PW2 with regard to

the criminal intimidation.

3(iii) The Trial Court failed to consider that in the Ex.P.1

complaint, it has been stated by showing the iron rod, the PW1

and PW2 were threatened by the appellant, but the said

witnesses never stated anything in their evidences, with regard

to the weapon for committing criminal intimidation.

3(iv) The Trial Court failed to consider that as per Ex.P.1

complaint, the date of occurrence was 19.11.2011 but the

complaint was given only on 22.11.2011 and the delay was not

explained. Hence, with pre-plan and pre-motive, false

complaint has been given.

3(v) The 1st accused was found guilty of offence under Section

417 of IPC. At the time of occurrence, PW1 only called the 1st

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accused who was studying in Chennai and he did not come to

Narippaiyur with his own willing and the same was also

admitted by PW1. If any promise was given by the 1st accused,

there would be any evidence produced before the Trial Court.

But none of material evidence or oral evidence is produced by

the prosecution. The Trial Court failed to consider the above

said aspects and erroneously convicted the appellant and the

same is unwarranted and unaccepted.

3(vi) At the time of occurrence, the victim PW1 was not a

minor and she never stated that the 1st accused cheated her

giving false promise to marry her and hence Section 417 of IPC

would not attract as against the 1st accused.

3(vii) The time of occurrence on 28.11.2011 was not

mentioned in Ex.P.1 complaint, Ex.P.6 FIR and Ex.P.2 final

report. PW1 has stated that the occurrence was happened at

day time at 1 o' clock. This evidence is only for the purpose to

falsely implicate the accused and she might to have stated that

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the occurrence had happened at night time, but definitely PW2

would be present in her house. In the cross examination of

PW1, she has stated that sometimes, when the 1st appellant

came to her house, PW2 was present but then she has stated

that at the time of occurrence, when the 1st appellant came to

her house, PW2 was not present and therefore there are so

much contradictions in the evidence of PW1 and hence the

version of PW1 is not believable. The Trial Court ought to

have considered the above aspects.

3(viii) The Trial Court failed to consider that PW1 informed

PW2 about the occurrence after two days, whereas, in contra,

in the evidence of PW2, she has stated that PW1 informed

about the occurrence only after ten days. Hence the evidence

of PW1 and PW2 are unbelievable and unacceptable.

3(ix) The 1st accused was convicted for the offence under

Section 376 of IPC and sentenced to undergo 10 years of

rigorous imprisonment. The evidence of PW1 never stated

anywhere that the 1st accused had intercourse with PW1

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without her consent. She has stated that she had love affair

with the 1st accused. Hence the Trial Court failed to

appreciated the intention of PW1 that she has given false

complaint only to threaten the 1st accused to marry her.

3(x) The Trial Court failed to consider that PW1 was sent for

medical examination only after 6 days of registration of the

case.

3(xi) The Trial Court ought to have considered that the

evidence of PW5/Doctor who never stated that there is no

symptom of intercourse in the body of PW1.

3(xii) The Trial Court ought to have considered that the

evidence of PW6, there is no symptom found in Serology

Report, there would intercourse between PW1 and the 1st

accused and it was clearly disclosed in Ex.P.3 and Ex.P.4.

3(xiii) The Trial Court ought to have considered that PW1 and

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PW2 have stated in their cross examination that earlier they

had given a complaint and orally requested the Police for the

unit of PW1 with the 1st appellant, but the earlier complaint

was suppressed by the prosecution. Hence Ex.P.1 is highly

doubtful.

4. Heard Mr. V. Kathirvelu, learned Senior Counsel for Mr. S.M.A.

Jinnah, appearing for the appellants and Mr. R. M. Anbunithi, the learned

Additional Public Prosecutor, appearing for the respondent.

5. The learned counsel appearing for the appellants would contend

that the 1st accused has been charged for the offences under Sections 417

and 376 of IPC and the 2nd accused has been charged for the offence under

Section 506(2) of IPC. In order to prove the charges levelled against the

accused, the prosecution has examined PW1 to PW11, marked Ex.P.1 to

Ex.P.7. On the side of defence, no oral evidence adduced and no documents

were marked.

5.1. PW1 is the defacto complainant and her evidence is not cogent.

She herself called the accused, who was studying Engineering in Chennai

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and the defacto complainant wanted to marry the 1st accused and the same

was refused by him and thereby, this false complaint has been lodged by the

defacto complainant. There is no specific place and time mentioned in the

charge and there is no evidence that where and at what time the occurrence

took place and even according to Ex.P.1 that the name of the village is only

mentioned and no specific place and time is mentioned. Further as per the

prosecution case, the accused had intercourse with the victim so many times

but the medical evidence is silent in this aspect.

5.2. Even according to the complaint, the prayer is to solemnize

marriage between the victim and the 1st accused. Further, PW1 in her

evidence stated that on 28.11.2011 at about 12.00 p.m., the accused came to

the village, but the same has not been mentioned in the complaint. Further

the victim has not stated about the occurrence immediately after the

occurrence and after two days, she told about the same to her mother. There

is no any evidence to attract the ingredients of the offence under Section

417 of IPC and the complaint has not been marked through PW1. As per

Ex.P.2., no evidence for recent sexual assault and the Doctor PW5 also

stated that there is no evidence for the recent sexual assault. Further PW2

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admitted that the complaint was given before the Jamad. PW3 has not

stated anything about the rape by the accused. Further the investigation

officer, during his investigation, failed to prepare Mahazar and Rough

Sketch. These are all the major discrepancies and thereby, the prosecution

case is highly doubtful and the prosecution failed to prove the charges

levelled against the accused. There is no ingredient to constitute the offence

under Section 506(2) of IPC and there is no evidence that the 2nd accused

caused criminal intimidation and the same had created fear over the minds

of the witnesses. The Trial Court has failed to consider the above said

aspects and erroneously convicted the accused and thereby, the judgment

and conviction passed by the Trial Court are liable to be set aside by

allowing this appeal.

6. On the other hand, the learned Additional Public Prosecutor would

contend that the accused and the victim, both had fell in love with each

other and due to the love affairs, they had intercourse and thereafter the 1st

accused refused to marry the victim girl and thereby she gave a complaint

and based on the complaint, the respondent had registered the FIR against

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the accused. Further, when the victim along with her mother, went to the

house of the accused to request them to marry the victim, the 2nd accused

caused criminal intimidation. Thereby, the 1st accused has been charged for

the offences under Sections 417 and 376 of IPC and the 2nd accused has

been charged for the offence under Section 506(2) of IPC.

6.1 Before the Trial Court, the prosecution has examined PW1 to

PW11 and marked Ex.P.1 to Ex.P.7. PW1 is the victim. PW2 is the mother

of the victim. The prosecution witnesses have categorically deposed about

the commission of offences by the accused. The Doctor was examined as

PW5 and she has also supported the prosecution case and thereby, the

prosecution has proved the case against the accused. The Trial Court, after

taking into consideration all the aspects, correctly convicted the accused.

Therefore, the present appeal is liable to be dismissed.

7. Heard both sides and perused the entire materials available on

record, the Judgment passed by the Trial Court and the grounds of appeal.

8. Upon hearing both sides and perusing the entire available records,

now the point for determination in this appeal is:

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8(i) whether the prosecution has proved the charges levelled against

the 1st accused for the offences punishable u/S.417 and 376 of IPC and

charge against the 2nd accused for the offence punishable u/S.506(2) of IPC

beyond all reasonable doubts.

8(ii) whether the judgment and conviction passed by the Trial Court

by convicting the 1st accused for the offences under Sections 417 and 376 of

IPC and the 2nd accused for the offence under Section 506(2) of IPC, is

sustainable in law and on facts.

9. Points:- The case of the prosecution is that the victim and the 1st

accused fell in love with each other. In the meantime, the parents of the

victim arranged for marriage to the victim and the same was informed to the

1st accused by the victim girl. Thereby, the 1st accused, on 28.11.2011 came

to the village of the victim and induced the victim and promised to marry

her and then had intercourse with her and thereafter refused to marry her.

Hence the victim along with her mother went to the house of the accused

and asked the 1st accused to marry her. At that time, the 1st accused refused

to marry her and the 2nd accused caused criminal intimidation by showing an

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iron rod and saying that “,UtUk; jpUkzg; ngr;irg; ngrpfpl;L ,dp ,e;j tPl;Lg; gf;fk;

te;jhy; bfhd;W g[ijj;JtpLnthk;”/ Hence the 1st accused was charged for the

offences under Sections 417 and 376 of IPC and the 2nd accused was

charged for the offence under Section 506(2) of IPC.

10. In order to prove the prosecution case, they have examined PW1

to PW11 and Ex.P.1-Ex.P.7 were marked. On the side of accused, there is

no oral or documentary evidence.

11. In this case, PW1 is the victim and she has deposed before the

Trial Court that “she knew the accused. About 5 years ago, she fell in love

with the 1st accused, who was her neighbour and the same was known to her

parents. Immediately, her family members had taken steps for her marriage

with some other person. Immediately she informed the same to the 1st

accused and at that time, the 1st accused was not in the village and he was

outside. Thereafter, the 1st accused came to the village and she told about

the marriage arrangements. At that time, the 1 st accused induced her by

saying that if they were together, then their parents could not do marriage

for her with some other person and for that, she refused. But thereafter, on

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28.11.2011 at about 12.00 to 1.00 p.m., the accused came to her house and

raped her by compulsion. After two days, she told her mother and then they

went to the house of the accused and requested to marry her. The accused

refused to marry her and the 2nd accused caused criminal intimidation by

showing an iron rod. The next day, they went to Keelakkarai All Women

Police Station to give complaint against the accused. The police had also

brought the accused to the police station and there also, they abused the

PW1 with obscene words. Then the Police had registered the FIR and then

PW1 was subjected to medical examination”. Therefore from the evidence

of PW1, it is revealed that she fell in love with the 1 st accused and after

knowing the same, her parents arranged for her marriage with some other

person and the same was informed to the 1st accused and at that time, the 1st

accused was not in the village. After some time, the accused came to the

village, at that time, PW1 narrated about the steps taken by her parents for

her marriage and thereafter the 1st accused insisted her to have intercourse

by promising that he would marry her and then on 28.11.2011 at about 12 to

1.00 p.m., the accused had raped PW1 with compulsion. Then after 2 days,

she disclosed the same to her mother and then they went to the house of the

accused and requested him to marry her but they refused. At that time, the

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2nd accused caused criminal intimidation and thereafter, PW1 gave a

complaint and the same is marked as Ex.P.1.

12. On perusal of Ex.P.1., it reveals that there is no mention abut the

place where the occurrence took place. Further it is stated that the accused

had sexual intercourse with PW1 so many times, but the same has not been

disclosed by PW1 in her evidence and the complaint also does not disclose

the place of occurrence. The charges also have not disclosed anything about

the place and time of occurrence. There is no mention about the alleged

cheating by the accused to marry her.

13. The date of occurrence is 28.11.2011. Complaint was lodged on

02.12.2011. There is a delay for lodging complaint and the same has not

been properly explained. The victim was aged about 19 years at the time of

giving complaint. Even according to the evidence of PW1, she only called

the 1st accused over phone and stated about the arrangements made by her

parents for her marriage. Therefore the evidence of PW1 shows that she

also consented for the alleged occurrence.

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14. Further the prosecution also examined the Doctor who treated the

victim and she was examined as PW5 and she also deposed that on

28.12.2011, the victim was subjected for medical examination and as per

her evidence, there is no any symptom for recent sexual intercourse. To that

effect, she has also given a certificate Ex.P.2., On perusal of Ex.P.2, it

reveals that there is no evidence for recent sexual assault. Therefore the

medical evidence also does not reveal anything incriminating against the

accused.

15. After chief, PW1 in her cross examination stated that “tHf;F

rk;gtj;jpw;F Kd;g[ Kfk;kJ up!;tp vdJ tPl;ow;F te;jJ fpilahJ vd;why; rup jhd;/

rk;gtk; ele;j fhyj;jpy; Kfk;kJ up!;tp brd;idapy; goj;Jf; bfhz;oUe;jhu; vd;why; rup jhd;/

ehd; up!;tpf;F nghd; bra;jJ rk;gtj;jpw;F xU ehs; Kd;g[/ vdf;F Kfk;kJ up!;tp

Vw;bfdnt xU nghd; th';fpf; bfhLj;Js;shu;/ me;j nghd; K:yk; jhd; nghd; bra;njd;/

me;j nghd; ek;gu; 8122180587 MFk;/ me;j nghdpy; xU rpk; fhu;L jhd; cs;sJ/ me;j rpk;

blhf;nfhnkh fk;bgdpiar; nru;e;jJ/ rk;gtj;jpw;F gpdg; [ nghid Kfk;kJ up!;tp tw;g[Wj;jp

vd;dplk; th';fpf; bfhz;lhu;/ rk;gtj;jpw;f ehd;F ehl;fs; fHpj;J ahuplnkh bry;yp

mDg;gpdhu;/ mtu; K:yk; nghidf; bfhLj;Jtpl;nld;”. Hence the evidence of PW1

reveals that already the 1st accused had given a phone to PW1 and through

that phone only, they had conversations and the same was also informed to

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the Police, but in spite of that, the Police has not obtained any call details

and the investigation was not done to that regard. Further, PW1 stated that

“rk;gtj;jd;W Kfk;kJ up!;tp 12 kzpapypUe;J 1 kzpf;Fs; te;jhu;/ ehd;

tPl;ow;Fs; ,Ue;njd;/ Kfk;kJ up!;tp tPl;ow;F te;J Rkhu; miu kzp neuk; ngrpf;

bfhz;oUe;jhu;/ Kfk;kJ up!;tpapd; tpUg;gj;jpw;F ehd; rk;kjk; bjuptpf;ftpy;iy/ Kfk;kJ

up!;tp vdJ thiag; bghj;jptpl;ljhy; vd;dhy; fj;j Koatpy;iy/ ehd; vjpu;j;Jg;

nghuhondd;/ buhk;g neu nghuhl;lj;jpw;Fg; gpwF Kfk;kJ up!;tp vd;idf; bfLj;Jtpl;lhu;/

vd; fGj;jpy; rpwpa fhak; ,Ue;jJ/ ehd; nghl;oUe;j rhy;itia vLj;J Kfk;kJ up!;tp

vdJ ifapd; gpd;gf;fk; fl;otpl;lhu;/ Kfk;kJ up!;tpapd; ifahy; jhd; fl;odhu;/ ifiaf;

fl;Lk; nghJ ehd; fj;jpndd;”. Therefore, the evidence of PW1 reveals that at the

time of occurrence, the accused by his hands, through the shaal of PW1, tied

the hands of PW1 on her backside and also she shouted. In spite of that, the

accused had committed rape on her. But the above said version, has not

been stated either in the complaint or while examination by the investigation

officer. Therefore, the evidence of PW1 is highly doubtful as to whether the

occurrence had happened as alleged by PW1. Further PW1 has not raised

any alarm during the course of alleged occurrence and it is admitted fact

that, in and around, there are houses situated. If so, the victim's noise or if

any alarm raised by the victim, would be heard by the neighbours. In this

case, there is no such evidence that the victim raised any alarm and the

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occurrence was also occurred at midnight and thereby, it shows her consent.

16. Further, the medical records do not reveal anything about the

alleged occurrence ie., the sexual intercourse committed by the accused with

PW1. Therefore the prosecution has failed to prove that the accused by

making false promise, had sexual intercourse with PW1/victim and thereby,

he committed offence.

17. Further PW2, who is the mother of the victim has also deposed

that her daughter told her that the 1st accused had raped her and thereafter

she along with her daughter went to the house of the accused and asked to

marry her daughter, but they refused. At that time, the 2nd accused

attempted to assault them with iron rod and bill hook. Thereafter, she

decided to arrange marriage for her daughter with another person.

Thereafter, they gave complaint. According to the prosecution case, when

the victim along with her mother went to the house of the accused and

requested the 1st accused to marry her daughter, the 2nd accused caused

criminal intimidation by showing an iron rod, but PW2 stated in her

evidence that the accused attempted to assault with iron rod and bill hook.

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Further PW1 also stated in her evidence that the 2nd accused told that she

would kill them if they come to her house for marriage talks by showing the

iron rod. But the evidence of PW2 is contrary to the evidence of PW1 with

regard to the manner of occurrence, weapon and words uttered by the 2 nd

accused. Therefore a serious doubt would arise about the the case of the

prosecution.

18. PW4 is the brother of PW1. He is not an eye witness of the

occurrence. He has only stated about the complaint given by them and other

happenings after the occurrence. PW5 is also a hear-say witness. PW6 has

deposed about the chemical analysis report and he stated that he examined

as per the request sent to him and as per his report, the filter papers 1, 2, 3

and 4 do not contain sperms and for the items 5 to 9, could not identify the

group of blood. Therefore, the evidence of PW6 also does not reveal

anything incriminating as against the accused.

19. PW7 has deposed about the potency of the accused and as per his

report, the accused is capable to have sexual intercourse. PW10 has

deposed about the receipt of complaint, registration of FIR. PW11 has

deposed about the investigation. PW11, in her cross examination evidence,

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has stated that “,e;j tHf;F rk;ge;jkhf m/rh/1d; gf;fj;J tPl;Lf;fhuiu tprhupj;njdh

vd;why; tprhupj;njd;/ Mdhy; mtu;fs; rhl;rp brhy;y Kd; tutpy;iy”/ Therefore, from

the evidence of PW11, it reveals that there is no any witnesses examined in

and around the place of occurrence. The occurrence took place in the

midnight. While so, it is the duty of the prosecution to examine the

witnesses, who are residing in the nearby place of the occurrence, but the

investigation officer has failed to examine the witness near to the place of

occurrence. This also creates a serious doubt over the prosecution case.

20. Further PW11 admitted that she has not prepared any

Observation Mahazar and Rough Sketch in this case. In this context, at the

time of cross examination, she admitted that “rk;gtk; ele;jjhfr; brhy;yg;gLk;

tPl;il ehd; ghu;itapl;nldh vd;why; ghu;itapl;nld;/ me;j ,lj;ijg; gw;wpa ghu;it kf$nuh.

Tiuglnkh ehd; jahu; bra;atpy;iy vd;why; rup jhd;”. Therefore the prosecution

has failed to investigate the matter in a proper manner. Further PW11 in her

evidence admitted that “m/rh/1 vd;Dila tprhuizapy; “,dp nky; fy;ahz ngr;R

nfl;L tPl;ow;F te;jhy; c';fis rhfoj;JtpLntd;” vd;W ,uz;lhtJ vjpup brhy;ytpy;iy

vd;why; rupay;y. bfhd;W g[ijj;JtpLnthk; vd;W ,Uk;g[ fk;gpiaf; fhl;o Fj;j te;jjhff;

Twpa[s;shu;”. Therefore even according to the prosecution case, the words

uttered by the accused are totally contradict to each other. In the complaint,

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it is stated that “,dp ,e;j tPl;Lg; gf;fk; te;jhy; bfhd;W g[ijj;JtpLnthk; vd;W ,Uk;g[f;

fk;gpiaf; fhl;o Fj;j te;jhu;fs;”/ In the evidence, PW1 stated that “,dp nky;

fy;ahz ngr;R nfl;L tPl;ow;F te;jhy; c';fis rhfoj;JtpLntd; vd;W 2tJ vjpup

gupjhngfk; brhd;dhu;/ fk;gpiaf; fhl;o v';fis kpul;odhu;”. PW2 stated that “fk;gp

kw;Wk; mUthis vLj;J v';fis mof;f te;jhu;fs;”. Therefore there are major

contradictions between the evidence of PW1, PW2 and the complaint with

regard to the alleged criminal intimidation caused by the 2nd accused.

Therefore, the prosecution has failed to prove the case beyond all

reasonable doubts.

21. As far as the offence under Section 417 of IPC is concerned,

PW1 in her evidence stated that the accused made promise to marry her and

then had sexual intercourse and thereafter he refused to marry her. But the

evidence of PW1 is highly doubtful and to attract Section 417 of IPC, there

is no sufficient evidence adduced by the prosecution and the evidence of

PW1 is not sufficient and the same is highly doubtful. In order to attract

Section 417 of IPC, the prosecution has to prove the offence of cheating.

The term “cheating” is defined in Section 415 of IPC, which reads as

follows:-

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415. Cheating — Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".

In order to attract the above said provision, there is no evidence that

the accused by deceiving any person fraudulently or dishonestly induced the

victim. Therefore, there is no evidence to attract the provisions of Section

417 of IPC as against the 1st accused.

22. As far as Section 376 of IPC is concerned, the evidence of PW1

is highly doubtful and the medical evidence also does not reveal anything in

favour of the prosecution and merely PW1 alone has stated about the

occurrence. But her evidence is not cogent and it is highly doubtful.

Thereby, the prosecution has failed to prove the charge under Sectin 376 of

IPC. Even assuming the statement of victim as true, with regard to the

alleged intercourse, her evidence shows that the victim has also consented

for the sexual intercourse. The victim is aged about 19 years and thereby,

she consented for the same. Therefore, the offence under Section 376 of

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IPC would not attract and no evidence to prove the ingredients of Section

375 of IPC.

23. As far the offence under Section 506(2) of IPC is concerned,

there is no evidence that the words uttered by the accused caused fear over

the minds of the victim and the words uttered by the accused also differ

between the prosecution side witnesses. Moreover the prosecution failed to

recover the weapon and no evidence to constitute the offence punishable

under Section 506(ii) of IPC.

24. The Trial Court failed to consider that in this case, there is no

place and time of occurrence mentioned in the charge and there is no

reference in the complaint about the place and time of occurrence. But the

victim at the time of giving her evidence before the Court only stated about

the place of occurrence that in her house the occurrence took place. The

'place of occurrence' plays a vital role these types of serious offences but the

complainant neither in her complaint nor in the statement recorded before

the investigation officer, stated about the place of occurrence. The charge

also does not contain the place and time of occurrence. Therefore the

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prosecution case is highly doubtful. The Trial Court has not considered the

above said aspects and erroneously came to the conclusion that based on the

complaint given by the victim, FIR has been registered and thereafter PW1

has deposed about the contents contained in the complaint and about the

occurrence and the averments contained in the complaint also corroborated

the evidence of PW1. Also as per Section 90 of IPC, if the consent was

obtained under fear or misconception, the offences under Sections 376

and 417 of IPC would attract. Further the Trial Court failed to consider

that there is no evidence to attract the provisions under Section 506(2) of

IPC.

25. The learned counsel for the appellants relied upon the judgment

of this Court in Ramesh vs. State represented by its Inspector of Police, All

Women Police Station, Panruti, Cuddalore District reported in Crl. A. No.

272 of 2014, wherein this Court held in Para 31 as follows:-

31. Admittedly, it can be referred that only after PW4, the cousin of the PW1 / Prosecutrix came to know about the physical relationship, she had given a complaint that too after a delay of nine months. Further, in this case, the prosecutrix is also not clear as to the date on which the first

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incident had happened and how the relationship originated and developed over a period of time accompanied by continued physical relationship.

As stated above, there is nothing on evidence to show that at the initial stage itself the accused had no intention whatsoever of keeping his promise to marry the victim. This could be brought within 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 the misconception created by the accused. If the appellant had any malafide intention and if he had clandestine motives, it could be brought into the ingredient of rape. The acknowledged consensual physical relationship between the parties would not constitute the offence u/s.376 IPC. Further as stated above no evidence has been made out for the offence u/s.417 I.P.C.”

In this case on hand also, the victim has not stated about the place of

occurrence and time and there is no clear cut evidence to prove the alleged

occurrence and thereby the above said case law is squarely applicable to the

present facts of the case.

26. In view of the above said discussions, this Court is of the opinion

that the prosecution has failed to prove the charges levelled against the

accused and therefore, the judgment and conviction passed by the Trial

Court are unsustainable and the same are liable to be set aside.

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27. IN THE RESULT, this Criminal Appeal is allowed and the

judgement and conviction passed in S.C. No.54 of 2014 by the learned

Sessions Judge, Fast Track Mahila Court, Ramanathapuram dated