Madras High Court

Kannan vs State Rep. By on 17 April, 2024

                                                                         CRL.A(MD).No.955 of 2023


                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               Dated:17.04.2024

                                                    CORAM

                           THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN

                                          CRL.A(MD).No.955 of 2023
                                                   and
                                         CRL.MP(MD).No.15058 of 2023

                    Kannan                                     ...Appellant/Sole Accused


                                                    Vs.


                    State Rep. By

                    The Inspector of Police,

                    Vathalakondu Police Station,

                    Dindigul District.

                    (Crime No.1347 of 2020)                    ...Respondent/Complainant

                    Prayer : This Criminal Appeal is filed under Section 374(2) of Cr.P.C. to

                    call for records connected with the judgment rendered by the Sessions

                    Judge, Fast Track Mahila Court, Dindigul in Special S.C.No.48 of 2023

                    dated 02.09.2023 and set aside the same and consequently, acquit the

                    appellant.



                   1/17
https://www.mhc.tn.gov.in/judis
                                                                              CRL.A(MD).No.955 of 2023




                                    For Appellant        : Mr.S.Vellaichamy


                                    For Respondent       : Mr.B.Nambi Selvan,
                                                           Additional Public Prosecutor


                                                      JUDGMENT

This appeal has been filed to set aside the order passed by the

Sessions Judge, Fast Track Mahila Court, Dindigul in Special S.C.No.48 of

2023 dated 02.09.2023.

2.The appellant who is the sole accused in Special S.C.No.48 of

2023 on the file of the learned Sessions Judge, Fast Track Mahila Court,

Dindigul, has filed this appeal challenging the conviction and sentence

imposed for the offences under Sections 363 of IPC and 6 of POCSO Act,

2012, by the impugned order dated 02.09.2023.

3. Prosecution Case:-

According to the prosecution, at the time of occurrence, the victim

girl was a minor and her date of birth is 19.04.2004. In this case, the victim

girl has informed her parents that she was in love with the

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

petitioner/accused. When the parents of the victim girl reprimanded her,

she informed the same to the appellant. Immediately, the appellant eloped

with the victim girl making a promise to marry her and treat her as his

wife. On the basis of the promise and assurance, the victim girl left her

home on 03.10.2020, around 14.00 hours. The appellant took her to the

Ukkadam and then, he settled at Chinnakalaiyamputhur, and stayed in a

rental house and worked in the brick Kiln situated in the said village.

Thereafter, P.W.1 father of the victim girl gave a complaint to the

respondent Police and the same was registered in Crime No.1347 of 2010

as “girl missing” and thereafter, the respondent Police altered the section

into 5(1) r/w 6 of POCSO Act and 363 of IPC. The investigating officer

conducted the investigation and arrested the accused and collected the

materials filed the final report before the learned Sessions Judge, Fast

Track Mahila Court, Dindigul. The same was taken on file in Special

S.C.No.48 of 2023.

3.1.After taking cognizance, the learned trial Judge framed the

charges against the appellant for the offences under Sections 363 of IPC

and Section 6 of POCSO Act, 2012. On the basis of charges, he questioned

the appellant and the appellant pleaded not guilty and hence, the trial was

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

conducted and the prosecution adduced the evidence of P.W.1 to

P.W.9 and marked the documents under Ex.P1 to Ex.P.20.

3.2. The learned trial Judge, considered the same, examined the

appellant under Section 313 Cr.P.C., by putting the incriminating material

available against him and he denied the same and hence, the case was

posted for examination for the defence witness. On the side of defence,

two witnesses were examined as D.W.1 and D.W.2 and no document was

marked.

3.3. The learned trial Judge after considering the oral and

documentary evidence, convicted the accused under Sections 363 IPC and

6 of POCSO Act, 2012, by the impugned order dated 02.09.2023 and also

sentenced him to undergo 3 years Rigorous Imprisonment and to pay a fine

of Rs.2,000/- and in default, to undergo 3 months Simple Imprisonment for

the offence under Section 363 IPC and sentenced him to undergo 20 years

Rigorous Imprisonment and to pay a fine of Rs.5,000/- and in default, to

undergo 6 months Simple Imprisonment for the offences under Section 6

of POCSO Act, 2012.

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

4.Aggrieved over the same, the appellant filed this appeal on the

grounds stated in the memorandum of grounds of appeal.

5.During the pendency of the suspension of sentence, the victim

appeared before this Court with her child and stated that both the appellant

and she loved each other and her mother refused to accept the same and

hence, she went along with the appellant and the appellant married her and

he arranged a separate house and maintained her by doing coolie works in

the Brick kiln and after the registration of the criminal case on the file of

the respondent, she returned to the Police Station along with appellant and

her parents refused to accept the same and hence, she was confined in the

observation home. She attained majority on 20.01.2023. After the

appellant came out on bail, he married her and out of the wedlock, a female

child was born on 06.01.2024. In the mean time, the learned trial Judge

convicted him by passing the impugned order on 02.09.2023. Due to the

conviction and confinement in prison from the date of the judgment, she

was not able to meet her daily livelihood and she and her child are under

starvation and hence, she seeks to accept the compromise memo and

compound the offence. Her father also present along with her. The

appellant also submitted the affidavit before this Court, stating that he

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

agreed to lead a happy matrimonial life along with their three months old

baby. He also stated that after the conviction, the victim frequently visited

the jail to see him. He also submitted that knowing the love affairs

between the victim and himself, the parents of the victim made

arrangement for her marriage with another person. In the said

circumstances, without any other option, both left the village and she

started living with him and he was working in a brick kiln and took care of

her. Therefore, there was no intention to cheat her. After she becoming

major, he married her. Therefore, he pleaded that he acted with all bona

fides and also undertakes to keep his wife and his female child safe all his

life. He also appeared through video conference from jail and affirmed the

contents of the sworn affidavit produced before this Court and reiterated

the above statement.

6.The learned Additional Public Prosecutor submitted that it is true

that the victim married the appellant and also female child was born out of

wedlock and they are inclined to compound the offence. But, there is no

provision to compound the offence. He also submitted that the appellant

committed the offence of aggravated penetrative sexual assault and hence,

he did not deserve any sympathy.

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

7.This Court considered the rival submissions and also perused the

materials and the impugned order and the precedents relied upon by both

parties.

8.Now the question in this case is whether the conviction and

sentence passed against the appellant by the Court below under Sections

363 of IPC and 6 of POCSO Act, 2012, is in accordance with law?

9.The said submission of the learned Additional Public Prosecutor

that the appellant did not take any steps after the occurrence deserves to be

rejected. His specific case is that he loved the victim girl. The victim's

mother and father refused to accept the affair. But, they made arrangement

for the marriage of the victim with another person. Therefore, the situation

necessitated elopement with the victim girl. The subsequent development

that a female child was born on 06.01.2024 after a lawful marriage taking

place on attaining the majority of the victim girl on 20.01.2024 has to be

taken into consideration. In the said circumstances, this Court feels that

there are bonafides in the submission of the both the victim and the

appellant.

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

10.This Court is duty bound to consider the interest of the small

child. The child has right to live with dignity. It includes the social status

of his father. If his father is allowed to undergo the sentence in spite of the

above marriage, the development of the child with the stigma attached with

the conviction of her father would get affected. There is a vast difference

between the growth of the child as a son of convict and a child growing

under normal circumstances. Allowing the wife without sufficient means

to meet her livelihood would lead to vagrancy and destitution. As per the

evidence of the victim, the appellant took her and worked in the Brick Kiln

and provided nourishment to the victim girl with responsibility. Hence,

this Court is duty bound to find a way to redress the grievance from all

sides. Therefore, this Court feels that this is an extraordinary circumstance

in the extraordinary situation of the case and the Constitutional Court has

power to mould the Law so as to serve the needs of time in order to

achieve a harmonious adjustment in human relations by acquitting the

appellant and further, prevent the vagrancy and destitution adopting the

law laid down by the Hon'ble Supreme Court in the following cases:

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

Lord Denning once B.P.Achala Anand v. Prithipal Singh v. said:

S. Appi Reddy, (2005) State of Punjab:

3 SCC 313 2012(1)SCC10 “Law does not stand still; 9.Further, the Hon'ble “50.Extraordinary it moves continuously. Supreme Court in held as situations demand Once this is recognised, follows: extraordinary remedies.

then the task of a judge is “Unusual fact situation While dealing with an put on a higher plane. He posing issues for unprecedented case, the must consciously seek to resolution is an Court has to innovate the mould the law so as to opportunity for law and may also pass an serve the needs of the innovation. Law, as unconventional order time.” administered by courts, keeping in mind that an transforms into justice. extraordinary fact The law does not remain situation requires static. It does not operate extraordinary measures.” in a vacuum. As social norms and values change, laws too have to be reinterpreted, and recast.

                                                   Law is really a dynamic
                                                   instrument fashioned by
                                                   society for the purposes of
                                                   achieving        harmonious
                                                   adjustment,           human
                                                   relations by elimination of
                                                   social      tensions    and
                                                   conflicts.

11.This Court also considered and inclined to follow the judgment of

this Court rendered in similar circumstances in Crl.A.(MD).No.247 of

2018 and the relevant paragraphs No.4 to 6 are extracted hereunder:

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

4. In this regard, it is relevant to rely upon the judgment of the Hon'ble Supreme Court of India in the case of Ramgopal and others vs. The State of Madhya Pradesh reported in 2021 (6) CTC 240 and the relevant paragraphs are extracted hereunder:-

18. It is now a well crystalized axiom that the plenary jurisdiction of this Court to impart complete justice under Article 142 cannot ipso facto be limited or restricted by ordinary statutory provisions. It is also noteworthy that even in the absence of an express provision akin to Section 482 Cr.P.C. conferring powers on the Supreme Court to abrogate and set aside criminal proceedings, the jurisdiction exercisable under Article 142 of the Constitution embraces this Court with scopious powers to quash criminal proceedings also, so as to secure complete justice. In doing so, due regard must be given to the overarching objective of sentencing in the criminal justice system, which is grounded on the sublime philosophy of maintenance of peace of the collective and that the rationale of placing an individual behind bars is aimed at his reformation.

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

19.We thus sumup and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences ‘compoundable’ within the statutory framework, the extraordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked beyond the metes and bounds of Section 320 Cr.P.C.

Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations.

20. Having appraised the aforestated parameters and weighing upon the peculiar facts and circumstances of the two appeals before us, we are inclined to invoke powers under Article 142 and quash the criminal proceedings and

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

consequently set aside the conviction in both the appeals. We say so for the reasons that: Firstly, the occurrence(s) involved in these appeals can be categorized as purely personal or having overtones of criminal proceedings of private nature; Secondly, the nature of injuries incurred, for which the Appellants have been convicted, do not appear to exhibit their mental depravity or commission of an offence of such a serious nature that quashing of which would override public interest; Thirdly, given the nature of the offence and injuries, it is immaterial that the trial against the Appellants had been concluded or their appeal(s) against conviction stand dismissed; Fourthly, the parties on their own volition, without any coercion or compulsion, willingly and voluntarily have buried their differences and wish to accord a quietus to their dispute(s); Fifthly, the occurrence(s) in both the cases took place way back in the years 2000 and 1995, respectively. There is nothing on record to evince that either before or after the purported compromise, any untoward incident transpired between the parties; Sixthly, since the Appellants and the complainant(s) are residents of the same village(s) and/or work in close vicinity, the

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

quashing of criminal proceedings will advance peace, harmony, and fellowship amongst the parties who have decided to forget and forgive any illwill and have no vengeance against each other; and Seventhly, the cause of administration of criminal justice system would remain uneffected on acceptance of the amicable settlement between the parties and/or resultant acquittal of the Appellants; more so looking at their present age.

5. In view of the aforesaid, the judgment in Spl.CC.No.45 of 2015 dated 19.02.2018 passed by the learned Sessions (Fast Track Mahila) Judge, Namakkal is set aside. The appellant/accused is acquitted of all charges in Spl.CC.No.45 of 2015 dated 19.02.2018 passed by the learned Sessions (Fast Track Mahila) Judge, Namakkal. Fine amount, if any paid, shall be refunded to the appellant forthwith. Bail bonds, if any executed, shall stand cancelled.

6. It is made clear that if the appellant leaves the victim anytime in lurch, the conviction and sentence imposed by the trial court shall stand automatically restored and the respondent

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

can secure the appellant to serve the remaining period of sentence.

12.Accordingly, the appeal is allowed in the following terms:

9.1.The judgment passed by the Sessions

Judge, Fast Track Mahila Court, Dindigul in

Special S.C.No.48 of 2023 dated 02.09.2023 is set

aside .

9.2.The appellant is acquitted from all the

charges in Special S.C.No.48 of 2023, dated

02.09.2023 passed by the Sessions Judge, Fast

Track Mahila Court, Dindigul.