Madras High Court
Shainshah vs State Rep. By on 29 May, 2024
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.A.No.88 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on 14.07.2023
Judgment Pronounced on 29.05.2024
Coram:
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl. Appeal No. 88 of 2017
Shainshah .. Appellant
-Vs-
State rep. by
Inspector of Police,
W5.All Women Police Station,
Vepery, Chennai – 600 007.
(W5 P.S. Crime No.1 of 2013) .. Respondent
Criminal Appeal filed under Section 374 Cr.P.C to set aside the
conviction and sentences of imprisonment and fine imposed on the
Appellant/Accused by the learned Sessions Judge, Fast Track Mahila Court,
Chennai in S.C.No.5 of 2014 dated 23.12.2016 and acquit the Appellant
herein from the said charges.
For Appellant .. Mr.C.Prabakaran
For Respondent .. Mrs.G.V.Kasthuri
Addl. Public Prosecutor
JUDGMENT
This Criminal Appeal has been filed to set aside the Judgment of the
learned Sessions Judge, Fast Track Mahila Court, Chennai in S.C.No.5 of
2014, dated 23.12.2016.
2.The brief facts, which are necessary for proper appreciation of the
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case, are as follows:-
2.1.The Complainant/Victim/Prosecutrix is residing at No.18,
Sathasivam Street, Purasaiwalkam, along with her parents and elder brother.
There was love affair between the Victim/Prosecutrix and Accused who is
residing nearer to her residence. The victim/Prosecutrix used to call the
Accused ofen to phone No.9789950797 from Phone Nos.99401046620 and
9003278867 kept in a Petty Shop. At that time, the Accused told her to come
to “Muttukadai Lane” at about 7.00 p.m. daily where they used to meet in a
vacant house. Thereafter, the Accused promised her to marry. The Accused
also enticed her by stating that he would marry her only if she commits
mistakes along with him and had coitus with her several times and because
of this, she became pregnant. When the victim/Prosecutrix told the Accused
to marry her, he recused to marry her and threatened to kill her and thus
cheated her. Thereby, the Inspector of Police, W5 All Women Police
Station, Vepery, Chennai has filed charge sheet against the Accused for the
offences under Sections 376, 417 and 506 (ii) of IPC.
2.2.The learned II Metropolitan Magistrate, Saidapet, Chennai, was
pleased to take up the final report filed by the Inspector of Police as
P.R.C.No.138 of 2013. The case was opened. On serving copies of the
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records under Section 207 of Cr.P.C. to the Accused on his appearance, and
on perusal of the records, the learned II Metropolitan Magistrate committed
the above said case to the learned Principal Judge, Chennai, for disposal
according to law.
2.3.The learned Principal Judge, Chennai, on receipt of the records,
was pleased to take up the case on his file on 07.01.2014. and assigned it as
S.C.No.5 of 2014 and made over to the Fast Track Mahila Court for disposal
in accordance with law.
2.4.The learned Session Judge, Fast Track Mahila Court on receipt of
records on 29.01.2014 and on appearance of the Accused and his Advocate,
framed the charges on 17.02.2014 for the offences under Sections 376, 417
and 506(ii) of IPC on the basis of the available materials and when the
Accused was questioned, the denied as false and claimed to be tried. In order
to bring home the guilt of the Accused, the Prosecution had examined 15
witnesses out of 24 witnesses cited in the list of witnesses. To substantiate
the Prosecution case, P.W-1 to P.W-15 were examined and Ex.P-1 to P-13
documents were marked.
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2.5. On appreciation of evidence, the learned Session Judge, Fast
Track Mahila Court, Chennai, by judgment dated 23.12.2016 in S.C.No.5 of
2014 convicted the Accused for offences under Sections 376 and 417 of IPC
and acquitted the Accused for offences under Sections 506(ii) of IPC. The
Accused was sentenced to undergo Rigorous Imprisonment of 7 years under
Section 376 and to pay a fine of Rs.25,000/-, in default, to undergo 6 months
Simple Imprisonment. For the offences under Section 417 of IPC the
Accused was sentenced to undergo one year Rigorous Imprisonment. The
period already undergone in detention was set off under Section 428 of
Cr.P.C.
3. Aggrieved by the same, the Accused had preferred this Criminal
Appeal.
4. The learned Counsel for the Appellant submitted his arguments.
The learned Counsel for the Appellant invited the attention of this Court to
the charges framed by the learned Sessions Judge, Fast Track Mahila Court,
Chennai, under Section 376, 417 and 506 (ii) of IPC. The learned Counsel
for the Appellant submitted that this is not a case of rape as projected by the
Prosecution. The Accused was aged 22 years and the victim was aged 20
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years. Therefore, she was competent to give consent. They were in love. In
the course of love, they indulged in sexual intercourse and the
victim/Prosecutrix became pregnant. It is the case of the Prosecutrix that the
Accused represented that he will marry her only after involving sexual
intercourse and she becomes pregnant, both families will accept their
proposal for marriage since the Accused is a Muslim and the
victim/Prosecutrix is a Christian. Both families may agree only after she
becomes pregnant. This is the version of the Prosecutrix. This cannot be
believed. She was in relationship with the Accused and in the course of
relationship, she became pregnant. She was aware of the consequences of
indulging in sexual intercourse before marriage.
5. The learned Counsel for the Appellant invited the attention of this
Court to the evidence of the Prosecutrix as P.W-1 that the evidence of the
mother of the Prosecutrix as P.W-2, the elder maternal aunt of the
Prosecutrix as P.W-3, the elder maternal uncle of the Prosecutrix as P.W-4.
P.W-5 is the Panchayathar, local person who is alleged to have mediated.
P.W-6 is the mahazar witness. P.W-7 is also the witness regarding the claim
of the Prosecution that the Prosecutrix used to contact the Accused from the
Public Call Office on the mobile phone of the Accused from the shop of
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P.W-7. P.W-8 is also a neighbour Velankanni. P.W-9 is the mother of the
Accused who was treated as hostile. P.W-10 Edwin is a mahazar witness.
P.W-11 Kumari who turned hostile. P.W-12 Dr.Thiruselvi who had
examined the Prosecutrix/P.W-1 and issued certificate under Ex.P-6. P.W-
13 is Dr.Saravanan who had examined the Accused and issued Ex.P-7
potency certificate. P.W-14 is Dr.Balamurugan who had examined the
Accused and issued Ex.P-9 fitness certificate regarding fit for remand. P.W-
15 is the Investigation officer. The learned Counsel for the Appellant invited
the attention of this Court to the evidence of the Accused as D.W-1. He had
clearly stated that the Accused and the Prosecutrix were in love relationship.
When the relatives of the Prosecutrix insisted to marry her, the Accused
sought time to marry. Since the time sought by him was refused by the
relatives of the Prosecutrix, the complaint under Ex.P-1 was lodged as
though the Accused refused to marry her claiming that they both belong to
different religion. The medical examination of the victim/Prosecutrix states
that the foetus was five months. The evidence of the Prosecutrix is
contradictory to the medical evidence. The Accused had no intention to
marry. He had not given false promise to attract Section 375 punishable
under Section 376 of IPC is not warranted. The learned Counsel for the
Appellant also invited the attention of this Court to the ingredients of Section
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417 of IPC – dishonest intention. Here there was no dishonest intention to
cheat the Prosecutrix. Therefore, the offence under Section 417 of IPC is not
attracted. The learned Sessions Judge, Fast Track Mahila Court failed to
appreciate the facts and circumstances of the case and had recorded the
conviction against the materials available in favour of the Accused.
6.The learned Counsel for the Appellant also submitted that the
witnesses are all related to P.W-1. They had all supported P.W-1 as though
the Accused committed offence. The complaint was written in Police Station
after failure of the Panchayat. The complaint was given as improved
complaint only after failure of the Panchayat as the the Accused made false
promise (It is an improved version for the purpose of attracting Section 375
of IPC). On overall appreciation of facts, the offence under Section 376 of
IPC is not made out. No DNA test was conducted by the Prosecution to fix
the responsibility on the Appellant. The Appellant did not have dishonest
intention. He was in prison for two years and forty five days. The learned
Counsel for the Appellant invited the attention of this Court to the reported
decisions of the Hon'ble Supreme Court in (2016) 4 SCC 140 [Tilak Raj -vs-
State of Himachal Pradesh] and the decision of the Bombay High Court
reported in 2014 SCC OnLine Bom 348 [Mahesh Balkrishna Dandane -vs-
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State of Maharashtra] and in the light of the reported decisions, the learned
Counsel for the Appellant seeks to set aside the judgment of conviction
recorded by the learned Sessions Judge, Fast Track Mahila Court, awarding
sentence of imprisonment under Section 376 and 417 of IPC as perverse.
7.The learned Additional Public Prosecutor appearing for the State by
way reply submits that the evidence of P.W-1 to P.W-3 alone will be
sufficient to convict the Accused as on the date of deposition the Prosecutrix
was aged 18 years. The complaint given by the Prosecutrix was not as Ex.P-
1. Ex.P-3 is the birth certificate of the child. There are sufficient materials
available before the Court to draw adverse inference against the Accused.
The learned Additional Public Prosecutor invited the attention of this Court
to page 62 of the typed set of papers regarding the birth certificate of the
child, page 52 is the relevant portion, also to the the cross-examination of the
Prosecutrix page 9 line 2. The learned Additional Public Prosecutor also
invited the attention of this Court to the evidence of Accused himself as
D.W-1. He had clearly conceded the relationship between him and the
Prosecutrix. In the cross-examination, he admitted that the nature of the
Prosecutrix was innocent (btFsp). Therefore, he had exploited the innocence
of the Prosecutrix by giving a false promise and getting consent for sexual
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intercourse. Therefore, the ingredients of offence under Section 375 of IPC
is made out against the Accused.
8.The learned Sessions Judge, Fast Track Mahila Court, Chennai, on
proper appreciation of evidence had rightly convicted the Accused for the
offence under Section 376 and 417 of IPC. There is noting to consider the
judgment as perverse. This Criminal Appeal lacks merit and the same is to
be dismissed.
Point for consideration:
Whether the judgment of conviction recorded by the
learned Sessions Judge, Fast Track Mahila Court, Chennai in
S.C.No.5 of 2014 dated 23.12.2016 is perverse warranting
interference of this Court?
9.Heard the learned Counsel for the Appellant and the learned
Additional Public Prosecutor. Perused the evidence of the Prosecutrix as
P.W-1 and other witnesses – P.W-2 to P.W-15 and the evidence of the
Accused as D.W-1. Perused the documents marked during trial as Ex.P-1 to
P-13 and the judgment of the learned Sessions Judge, Fast Track Mahila
Court, Chennai, in S.C.No.5 of 2014 dated 23.12.2016. The Prosecutrix had
clearly mentioned regarding the representation of the Accused that he will
marry her. Since both of them belong to different religion only after
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indulging in pre-marital sex and if she becomes pregnant both families will
accept their marriage. The Prosecutrix had also stated that the Accused
promised her that even if the elders in the family object to their marriage, he
will marry her. Therefore, believing the representation of the Accused, the
Prosecutrix consented to have intercourse with him. When she became
pregnant, she informed him, then he refused. Therefore, she felt
disappointed. Therefore, she informed it to her mother and elder maternal
aunt and maternal uncle and also to the Panchayat President in the street,
mediator and elderly persons in the street who mediated between the two
families. Since the Accused refused to marry her, she lodged the complaint
under Ex.P-1. After taking the complaint, the All Women Police, Vepery
sent for the Accused. The Accused/Appellant herein appeared along with his
mother and lawyer on the first day and admitted that he needs time to
consider to marry her. On the second date of enquiry, he appeared along
with an Advocate and refused to marry her claiming that he is ready to
undergo imprisonment but he will not marry her. The intention of the
Accused was proved by the Prosecutrix.
10.In cases of this nature, there will not be a direct evidence available,
particularly, involving sexual offence the evidence of the Prosecutrix had to
be believed. The mother and maternal aunt are witnesses 2 and 3. The
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learned Sessions Judge, Fast Track Mahila Court, Chennai, on appreciation
of evidence discussed the evidence in paragraphs 24 to 34 and arrived at a
conclusion that there is nothing to dispute the veracity of the evidence of the
Prosecutrix. The learned Session Judge, Fast Track Mahila Court, Chennai,
had found her evidence cogent, natural, trustworthy and inspires confidence
of the Court. The sorry state of affairs is that the Prosecutrix had given birth
to a female baby on 09.05.2013 and the paternity of the child is also not
disputed by the Accused. False promise made by the Accused has spoiled
the life of a girl along with a female child. The learned Session Judge, Fast
Track Mahila Court, had relied on the ruling of the Hon'ble Supreme Court in
Deelip Singh -vs- State of Bihar [2005 SCC Cri. 253] wherein it is stated as
follows:-
“ ... a misrepresentation as regards the intention of the person
seeking consent, i.e., the Accused, could give rise to the misconception of
fact. While applying this principle to a case arising under Section 375
IPC, this Court held that the consent given pursuant to a false
representation that the Accused intends to marry, could be regarded as
consent given under misconception of fact. ...”
11.On perusal of the reported decision of the Hon'ble Supreme Court
in (2016) 4 SCC 140 [Tilak Raj -vs- State of Himachal Pradesh] the facts
even though similar, will not help the case of the Appellant herein. In the
reported decision, the Prosecutrix was aged 40 years. The alleged
occurrence took place in her residence. Prior to the alleged date of
occurrence, as per the evidence of the Prosecutrix in the reported decision, 40
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years old woman was in relationship for two years with the Accused.
Therefore, she was aware of the consequences. Here, the Prosecutrix is aged
18 on the date of alleged occurrence and 20 years on the date of giving
deposition. Here, the Accused had made representation that the Accused
belong to a different religion and the Prosecutrix belong to different religion
so only after they indulge in sexual intercourse and she become pregnant,
both families will be forced to accept their marriage. In such circumstances,
even if the elders in the family of the Accused object, he will marry her.
That was the evidence let in by the Prosecturix.
12.The Accused himself has let in evidence as D.W-1. In the cross-
examination by the learned Public Prosecutor, he had admitted that the
Prosecutrix was not worldly-wise – not matured as worldly-wise. She
believed the representation of the Accused (btFsp) indicating her
innocence. Therefore, the innocence of a young woman, who is aged
between 18 and 20 years, was exploited by the Accused with clear intention.
He had made her believe that only after she become pregnant both families
will accept their marriage. After becoming pregnant, when she informed him
he ditched her. Therefore, the reported decision of the Hon'ble Supreme
Court in (2016) 4 SCC 140 [Tilak Raj -vs- State of Himachal Pradesh],
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even though similar, will not help the case of the Accused in this case. Here,
in this case, the alleged occurrence took place in a secluded place and away
from the residence of the Prosecutrix. The Prosecutrix was directed to come
there regularly by 7.00 p.m. with an intention to have intercourse. He had
used his mobile phone to contact her and directed her to contact him from
Public Call Office which is available through P.W-7 from whose shop the
Prosecutrix was contacting him. Also, the facts in the another decision of
the High Court of Bombay relied on by the learned Counsel for the Appellant
in 2014 SCC OnLine Bom 348 are found similar, is not applicable to this
case. In the reported decision, the Accused is alleged to have made advances
to the Prosecutrix and on promise to marry her, had sexual intercourse in
different premises over a period of time. In the year 2008-2009 the
Applicant in the reported decision (the man who sought anticipatory bail)
avoided to talk about their marriage and therefore, the Prosecutrix consumed
tranquilizer and was admitted in hospital. Thereafter they continued to meet
and maintained their physical relationship. On 6th December, 2013 the
Prosecutrix/Complainant/Intervenor came across the photograph of the
applicant/Accused performing pre-wedding rituals. Therefore, she arrived at
Nashik in the evening on the same day and found that the Applicant/Accused
has performed marriage with some other girl. Therefore, she lodged a
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complaint. Here, it is not the case. There is clear evidence that the Accused
had represented that as the Accused belong to a different religion and the
Prosecutrix belong to different religion so only after they indulge in sexual
intercourse and she become pregnant, both families will be forced to accept
their marriage. Therefore, the ingredients under Section 376 of IPC is
attracted for false promise. That is the difference in both the cases.
Therefore, those facts will not help the case of the Accused/Appellant in this
case. Hence the same is rejected.
13.In the light of the above discussion, the submission of the learned
Counsel for the Appellant is rejected. The submission of the learned
Additional Public Prosecutor that the reasoning given by the learned Sessions
Judge, Fast Track Mahila Court, Chennai convicting the Accused is found
well reasoned judgment which does not warrant any interference, is accepted.
The grounds of appeal preferred by the Appellant in this case is rejected.
The judgment of the learned Sessions Judge, Fast Track Mahila Court,
Chennai in S.C.No.5 of 2014 dated 23.12.2016 is found well reasoned
judgment which does not warrant interference.
14.Above all, as per the guidelines issued by the Hon'ble Supreme
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Court while appreciating evidence, the finding given by the learned trial
judge is to be given due weightage since the trial Judge had the advantage of
observing the demeanour of the witnesses. Even though there is likelihood
of a different opinion, different finding, the finding given by the trial Judge is
to be given weightage. Under those circumstances, the finding given by the
trial Judge is found reasonable and acceptable regarding the promise to
marry and after having sexual intercourse when the victim became pregnant
ditching her.
15.The point for consideration is answered in favour of the
Prosecution and as against the Appellant/Accused. The judgment of
conviction recorded by the learned Sessions Judge, Fast Track Mahila Court,
Chennai in S.C.No.5 of 2014 dated 23.12.2016 is a well reasoned judgment
which does not warrant any interference.
In the result, this Criminal Appeal is dismissed. The judgment of
conviction recorded by the learned Sessions Judge, Fast Track Mahila Court,
Chennai in S.C.No.5 of 2014, dated 23.12.2016 is confirmed. The learned
Sessions Judge, Fast Track Mahila Court, Chennai is directed to issue
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warrant to the Inspector of Police, W-5, All Women Police Station, Vepery,
Chennai to secure the Accused and sent him to Prison so as to undergo the
remaining period of sentence of imprisonment as per the judgment of
conviction recorded by the learned Sessions Judge, Fast Track Mahila Court,
Chennai in S.C.No.5 of 2014, dated 23.12.2016. The period already
undergone in detention is set off under Section 428 of Cr.P.C. In case, the
Accused is absconding, the learned Sessions Judge, Fast Track Mahila Court,
Chennai, shall pass appropriate orders to declare the Accused as Proclaimed
Offender.
The learned Sessions Judge, Fast Track Mahila Court, Chennai, shall
send compliance report to the Registry of this Court within a month.
29.05.2024
srm
Index : Yes/No
Internet : Yes/No
Note: Issue order copy on 29.05.2024
Copy to:
1.The Sessions Judge, (For follow up action)
Fast Track Mahila Court,
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Chennai.
2.The District Collector,
Chennai District,
Chennai.
3.The Commissioner of Police, (For follow up action)
Chennai City Police, Egmore,
Chennai -600 008.
4.The Inspector of Police, (For follow up action)
W-5, All Women Police Station,
Vepery, Chennai – 600 007.
5.The Public Prosecutor, (For follow up action)
Fast Track Mahila Court, Chennai.
6.The Public Prosecutor, (For follow up action)
Madras High Court,
Chennai – 600 104.
SATHIKUMAR SUKUMARA KURUP. J,
srm
https://www.mhc.tn.gov.in/judis
Judgment in
29.05.2024
https://www.mhc.tn.gov.in/judis
