Madras High Court

Ameen Batcha vs The State Rep. By Its on 20 January, 2025

                                                                                       Crl.A.No.73 of 2023



                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED : 20.01.2025

                                                        CORAM :

                                    THE HON'BLE MR. JUSTICE SUNDER MOHAN
                                                   Crl.A.No.73 of 2023


                Ameen Batcha                        ... Appellant/Sole Accused

                                                            v.

                The State Rep. by its,
                Inspector of Police,
                Vikkravandi Police Station,
                Villupuram District.
                (Crime No.1623/2020)                ... Respondent/Complainant

                Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure, 1973,
                against the conviction of the appellant/sole accused and sentence in S.C.No.23 of
                2021 dated 09.12.2022 on the file of the learned Sessions Judge, Magalir
                Neethimandram (FT Mahila Court), Villupuram District, and set aside the
                conviction and sentence and allow this appeal.

                                  For Appellant     : Mr.R.John Sathyan, Sr. Counsel
                                               for Mr.Swamisubramanian

                                  For Respondent : Mr.C.E.Pratap
                                              Government Advocate (Crl.Side)


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                                      Crl.A.No.73 of 2023




                                  2


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                                                                                         Crl.A.No.73 of 2023



                                                   JUDGMENT

This Criminal Appeal has been filed by the sole accused, challenging the

conviction and sentence imposed upon him, vide judgment dated 09.12.2022 in

S.C.No.23 of 2021, on the file of the learned Sessions Judge, Magalir

Neethimandram, Fast Track Mahila Court, Villupuram.

2. (i) It is the case of the prosecution that the victim aged about 24 years at

the time of the occurrence had a love affair with the appellant who was aged 26

years, for a period of six years before the occurrence; that the victim told the

appellant that since they belonged to different religions, it is not possible to get

married; that appellant threatened the victim stating that if she did not marry him,

he would commit suicide; and that on the promise of marriage, had sexual

intercourse with the victim in her house on 17.06.2018 at about 1.30 p.m., and

again on 21.06.2018 at about 12.15 p.m.

(ii) On the complaint [Ex.P1] given by the victim on 18.07.2020, a case was

registered against the appellant for the offences under Sections 417, 376, 294(b)

and 352 of the IPC by the Sub Inspector of Police [PW14]. The FIR was marked

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as Ex.P10.

(iii) PW15, the Inspector of Police, took up the investigation and after

examination of witnesses, filed the final report against the appellant for the

offences under Sections 417, 376, 294(b) and 352 of the IPC, before the learned

Judicial Magistrate, Vikkravaandi.

(iv) On the appearance of the appellant, the provisions of Section 207

Cr.P.C., were complied with, and was committed to the Court of Sessions i.e.,

Principal Sessions Judge, Villupuram. The case was taken on file as S.C.No.23 of

2021 and was made over to the learned Sessions Judge, Magalir Neethimandram,

Fast Track Mahila Court, Villupuram, for trial. The trial Court framed charges

against the appellant/accused for the offences under Sections 417, 376, 294(b)

and 352 of the IPC and when questioned, the accused pleaded 'not guilty'.

(v) To prove the case, the prosecution examined 15 witnesses as P.W.1 to

P.W.15 and marked 12 exhibits as Exs.P1 to Ex.P12. When the accused was

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

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him, he denied the same. The accused neither examined any witness nor marked

any document on his side.

(vi) On appreciation of oral and documentary evidence, the trial Court found

that the prosecution had established its case beyond reasonable doubt and held the

appellant/accused guilty of the offences under Sections 417, 376 r/w 90 of the IPC

and sentenced him as follows:

                    Offence under Section                        Sentence imposed
                 376 r/w 90 IPC                 To undergo RI for seven years and to pay a fine of
                                                Rs.25,000/- in default to undergo SI for three
                                                months.
                 417 IPC                        No separate sentence was imposed for this offence

The trial Court found the accused not guilty of the offence under Sections 294(b)

and 352 of the IPC and acquitted him of the said offence. Hence, the accused has

preferred the appeal challenging the said conviction and sentence.

3. Heard, Mr.R.John Sathyan, learned senior counsel appearing for the

appellant, and Mr.C.E.Pratap, learned Government Advocate (Crl.Side), appearing

for the respondent/State.

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4. Mr.R.John Sathyan, learned senior counsel for the appellant would

submit that the complaint was lodged nearly 25 months after the alleged

occurrence; that admittedly, there was a love affair and the allegation of cheating

and rape, is an afterthought; that the evidence of the victim would only suggest

that the relationship was consensual; and that the trial Court had disbelieved the

evidence of the victim as regards the offence under Sections 294(b) and 352 of the

IPC and prayed for acquittal of the appellant.

5. The learned Government Advocate (Crl. Side) appearing for the

respondent per contra submitted that though there is a delay in filing of the

complaint, the evidence of the victim is cogent and convincing and therefore, the

judgment of the trial Court based on the evidence of the victim and the other

relatives of the victim, cannot be faulted and prayed for dismissal of the appeal.

6. Considered the rival submissions and perused all the relevant records.

7. As stated earlier, the prosecution had examined 15 witnesses. PW1 is the

victim; PW2 is the mother of the victim; PW3 is the sister of PW2; PW4 is the

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younger brother of PW1; PW5 and PW7 are the neighbours, who corroborate the

evidence of PW1; PW6 and PW8 are the observation mahazar witnesses; PW9 is

the Constable, who took PW1 to the Doctor for medical examination; PW10, is the

Constable, who accompanied the victim to record her statement under Section 164

of the Cr.P.C; PW11, is the Constable, who escorted the accused to the Doctor for

medical examination; PW12 is the Doctor, who examined the accused; PW13 is

the Doctor, who examined the victim, made entries in the Accident

Inspector of Police, who registered the FIR [Ex.P10] and PW15 is the Inspector of

Police, who conducted the investigation.

8. The evidence of PW2, the mother of the victim and PW3, her sister would

show that on coming to know of the affair between the appellant and the victim,

they went to the house of the appellant and requested his parents and other

relatives to get him married to the victim and that they refused and also insulted

them.

9. The question is whether the accused on the false promise of marriage had

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obtained consent from the victim for sexual intercourse and thus committed the

offence of rape. Admittedly, the appellant and the victim had a love affair for

more than six years. The allegation is that the appellant had sexual intercourse

twice viz., for the first time on 17.06.2018 and for the second time on 21.06.2018.

The complaint was not lodged immediately thereafter.

10. It is no doubt true that merely because there is a delay in lodging the

complaint, the victim cannot be disbelieved. However, in this case, it is the

prosecution case that the appellant and the victim had a love affair for more than

six years. It is also seen from the cross-examination of the victim [PW1] that the

appellant and the victim had several financial transactions between them and

shared a good relationship. The relevant portion reads as follows:

“ehd; vjphpa[ld; el;g[wthf gHFk;nghJ xUtUf;bfhUtu;

gzgwpkhw;wk; bra;Jbfhz;nlhk; vd;why; rhpjhd;/ mg;nghJ vjphpapd;

V/o/vk; fhu;L vd; ifapy; ,Ue;jJ vd;why; rhpjhd;/”

11. It is also seen that when the victim had handed over her gold chain for

raising money by pledging/mortgaging to one Sasikumar and that when the said

Sasikumar refused to redeem the chain, the appellant had helped her to redeem the

chain. The relevant portion reads as follows:

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“vjphpa[k; ehDk; el;g[wthf ,Ue;j fhyj;jpy; bfoyk;

                        fpuhkj;ij          nru;e;j    rrpFkhu;   vd;gthplk;    vd;Dila           brapid
                        mlkhdk;          itg;gjw;fhf       bfhLj;njd;      vd;why;     rhpjhd;/       me;j
                        brapid         rrpFkhu;      kPlL
                                                        ; bfhLf;ftpy;iy/    vjphp    jhd;   rrpFkhhplk;

                        ngrp vd; brapid kPlL
                                           ; bfhLj;jhu; vd;why; rhpjhd;/”

The above admissions in the cross examination would suggest that the appellant

and the victim were close to each other.

12. The evidence of PW1 therefore would make it clear that the physical

relationship was not only due to the alleged promise made by the appellant to

marry the victim. The victim was aged 24 years at the time of occurrence and she

was aware of the consequences of her act and it cannot be said that her consent to

have sexual intercourse is only on the false promise of marriage. The victim is not

naive or gullible and she was capable of understanding the consequences of her

acts. Further, the complaint that the appellant committed sexual intercourse on

false promise of marriage was made for the first time 25 months after the alleged

occurrence. In this case, delay would certainly assume significance. The evidence

of the other witnesses at best reveals that the appellant and the victim had a close

relationship and therefore, those witnesses would be of no avail to the prosecution

to establish the alleged false promise or that the consent was on the alleged false

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promise. The evidence of PW2 and PW3 at best would reveal a breach of promise

and would not establish the alleged deception said to have been made.

13. In a recent decision, the Hon'ble Supreme Court in Mahesh Damu

Khare v. The State of Maharastra & Another [Crl.A. No...... of 2025 (SLP (Crl.)

No.4326 of 2018) decided on 26.11.2024], has held as follows:

“24. It may be also noted that there may be occasions where a promise to marry was made initially but for various reasons, a person may not be able to keep the promise to marry. If such promise is not made from the very beginning with the ulterior motive to deceive her, it cannot be said to be a false promise to attract the penal provisions of Section 375 IPC, punishable under Section 376 IPC.

25. In the present case, even assuming that the appellant had made the promise since 2008 when they met for the first time, the fact that they remained unmarried for a long period till 2017 without there being any protest or objection by the complainant, does not indicate the intention at the initial stage itself to make the promise falsely to marry the complainant. Making an allegation of non-fulfilment of promise to marry without undue delay by the promissee would, on the other hand, be an indicator of a false promise being made from the initial stage. In the present case, what is not in dispute is that the physical relationship between the appellant and the complainant continued for a long period of about a decade and as such it is difficult to infer that the appellant had made a false promise since the initial stage and continued to make false promises to marry her on the basis of which she also continued to have physical relationship with him.

26. In the present case, the nature of relationship between the appellant and

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the complainant can be characterised by the following attributes:

(i) The appellant and the complainant were acquainted with each other since 2008. The complainant herself admits that the appellant has been in physical relationship since then till 2017 without protest in spite of alleging that the appellant had done so without her consent.

(ii) The physical relationship was going on routinely. But the complainant in her complaint states that after she got a rented room in Shirvane, Nerul Sector 1, Navi Mumbai, in December, 2010, the appellant used to come every day and had sexual intercourse everyday, though without her consent and by giving false promise of marriage.

(iii) The complainant does not appear to be a naive and gullible woman who was susceptible to deceit while maintaining physical relationship with the appellant and the allegation of false promise surfaced only when the appellant refused to provide further financial and other assistance.

(iv) The conduct of the complainant clearly shows that she is a mature person clearly capable of understanding the consequences of her acts and she was fully aware of the kind of illicit relationship she was maintaining with a married person.

(v) The complainant was fully aware that the appellant was already married and had two wives, though one of them was not keeping well.

27. Thus, from the above it appears that it is more of an extra-marital affair during the aforesaid period without any insistence by the complainant for getting married to the appellant. The fact that the complainant continued to have a physical relationship for a long time without any insistence on marriage would indicate the unlikelihood of any such promise made by the appellant for marrying her and it rather indicates that the relationship was a consensual one. In our opinion, the longer the duration of the physical relationship between the partners without protest and

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insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by the male partner and thus, based on misconception of fact.

28. Moreover, even if it is assumed that a false promise of marriage was made to the complainant initially by the appellant, even though no such cogent evidence has been brought on record before us to that effect, the fact that the relationship continued for nine long years, would render the plea of the complainant that her consent for all these years was under misconception of fact that the Appellant would marry her implausible. Consequently, the criminal liability attached to such false promise would be diluted after such a long passage of time and in light of the fact that no protest was registered by the complainant during all those years. Such a prolonged continuation of physical relationship without demurral or remonstration by the female partner, in effect takes out the sting of criminal culpability and neutralises it.

29. It will be very difficult to assume that the complainant who is otherwise a mature person with two grown up children, was unable to discover the deceitful behaviour of the appellant who continued to have sexual relationship with her for such a long period on the promise of marriage. Any such mendacious act of the appellant would have been exposed sooner without having to wait for nine years. The inference one can draw under the circumstances is that there was no such false promise made to the complainant by the appellant of marriage by continuing to have physical relationship so as to bring this act within the province of Section 376 IPC and therefore, there was no vitiation of consent under misconception of fact.

30. Further, it appears that discontinuance of financial support to the complainant, rather than the alleged resiling from the promise to marry by the appellant appears to be the triggering point for making the allegation by the complainant after a long consensual relationship for about nine years.

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31. In our view if criminality is to be attached to such prolonged physical relationship at a very belated stage, it can lead to serious consequences. It will open the scope for imputing criminality to such long term relationships after turning sour, as such an allegation can be made even at a belated stage to drag a person in the juggernaut of stringent criminal process. There is always a danger of attributing criminal intent to an otherwise disturbed civil relationship of which the Court must also be mindful.

32. It is evident from the large number of cases decided by this Court dealing with similar matters as discussed above that there is a worrying trend that consensual relationships going on for prolonged period, upon turning sour, have been sought to be criminalised by invoking criminal jurisprudence.”

14. The above observations would be applicable to the facts of this case.

The evidence only reveals a consensual relationship for a prolonged period of time

that turned sour and hence, the offence under Sections 376 and 417 of the IPC, are

not made out on the facts of the case. It is also to be noted that the trial Court has

disbelieved the prosecution version with regard to the offence under Sections

294(b) and 352 of the IPC. Therefore, this Court is of the view that the appellant

cannot be convicted on the basis of such evidence.

15. As a result, this Criminal Appeal is allowed, and the appellant is

acquitted of all the charges. The conviction and sentence passed in S.C.No.23 of

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2021, dated 09.12.2022 on the file of learned Sessions Judge, Magalir

Neethimandram, (Fast Track Mahila Court), Villupuram, are set aside. The fine