Madras High Court
Maharajan vs State Through on 8 July, 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.07.2015
CORAM
THE HONOURABLE MR.JUSTICE S.NAGAMUTHU
CRIMINAL APPEAL (MD).No. 289 of 2014
1.Maharajan
2.Velu
3.Chittu : Appellants
Vs.
State through
The Inspector of Police,
Town Police Station,
Crime No.17 of 2008
on the file of the All Women Police Station
Sankarankovil : Respondent
PRAYER
Appeal is filed under Section 374 of the Code of Criminal Procedure
against the judgment dated 30.09.2014 made in S.C.No.191 of 2011 on the file
of the learned Sessions Judge (Mahila Court) Tirunelveli.
!For Appellant : Mr.R.J.Karthick
^For Respondent : Mr.C.Mayilvahana Rajendran
Addl.Public Prosecutor
:JUDGMENT
The appellants are the accused 1 to 3 in S.C.No.191 of 2011 on the file of the learned Sessions Judge, Mahila Court, Tirunelveli. The accused 2 and 3 are the parents of the first accused/appellant. The first accused herein stood charged for offences under Sections 376, 417 and 506(i) IPC and Section 4 of Dowry Prohibition Act and the accused 2 and 3 stood charged for offence under Section 4 of the Dowry Prohibition Act. By judgment dated 30.09.2014, the trial Court convicted all of them under various penal provisions. The trial Court convicted the appellant No.1/A1 for offence under Sections 376 IPC and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for six months for the offence under Section 417 IPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/-, in default to undergo rigorous imprisonment for two months and for the offence under Section 4 of the Dowry Prohibition Act, to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for three months. He was acquitted of the charge under Section 506(i) IPC. The trial Court convicted the appellants 2 and 3 for offence under Sections 4 of Dowry Prohibition Act and sentenced them to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- each. Challenging the above conviction and sentence, the appellants are before this Court with this appeal.
2. The case of the prosecution in brief is as follows:-
P.W.1 in this case is the alleged victim. She was studying in a Polytechnic College during the relevant time. At the time of occurrence, she was aged 17 years. The first accused also belongs to the same village. He used to meet P.W.1 frequently and at one point of time, he proposed his love for her. But P.W.1 did not respond positively. While so, on 21.10.2008, according to the prosecution case, at about 9.00 a.m., the first accused met P.W.1 and wanted her to come to the cattle shed of her aunt for having a chitchat. P.W.1 responded positively and went along with him to the cattle shed. In the cattle shed, during the talks, he promised to marry her and he extended sexual overtures towards her. She resisted. Despite the same, it is the case that he committed rape on her by having penile sexual intercourse. This was seen by P.W.1's aunt by name Mariammal. Mrs.Mariammal enquired P.W.1 about the affair. P.W.1 told her that they had decided to marry and that is why they had sex. Thereafter, Mrs.Mariammal informed the father of P.W.1 about the same. Then, the father of P.W.1, along with his other relatives, went to the house of the first accused met him and other elders in his house. They wanted the first accused to marry P.W.1. The first accused demanded a sum of Rs.1,00,000/- for marrying her. Thereafter P.W.1 went to the police station on 12.12.2008, upon which, the present case was registered in Crime No.17 of 2008 under Sections 417, 376, 498(A) and 506(i) IPC by the Sub Inspector of Police, All women Police Station, Sankarankoil.
2.1. During the course of investigation, P.W.1 was sent for medical examination. P.W.9 Doctor Velammal conducted medical examination on P.W.1 to whom P.W.1 told that she had sexual intercourse atleast for five times. She further stated that lastly, she had sexual intercourse on 23.10.2008. P.W.9 found no external injuries on the body of P.W.1. She found the hymen ruptured. She also found that her vaginal cavity allowed two fingers to move freely. Vaginal smear was taken and sent for chemical examination, which revealed that there was no spermatozoa. P.W.9, therefore, gave opinion that there was no sign of any recent sexual intercourse. Ex.P3 is the Certificate and Ex.P.4 is the Final opinion of P.W.9. P.W.1 was again sent to the Government Hospital, Tenkasi to ascertain her age. P.W.10 Dr.Kulandhai Velu took X-rays, examined P.W.1 and X-rays and finally gave opinion that on the date of examination, she had completed 18 years of age and not completed 19 years of age. M.O.1 series are the X-rays taken and the Ex.P5 is his opinion.
2.2. During the course of investigation, P.W.16, the Investigating Officer arrested the first accused on 21.12.2009 and forwarded him for medical examination. P.W.11 Dr.Balasubramaniam attached to the Government Hospital at Sankarankoil conducted medical examination on the first accused and found that he was hale and healthy and he was capable of performing penile sexual intercourse with a woman. Thus, according to P.W.11, the appellant was not impotent. On 23.12.2009, the first appellant/A1 was again examined by one Dr.G.Krishnan (P.W.12) to ascertain his age. He took X-ray and based on the same and on examinations, he gave opinion that he had completed 21 years of age. M.O2 series are the X-rays and Ex.P6 is the certificate issued by him. During the course of investigation, P.W.6, the Inspector of Police, examined P.W.1, P.W.2 (her father), P.W.3 (her uncle), P.W.6 (another uncle) and few more witnesses. He collected the medical records, laid charge sheet against the appellants.
2.3. Based on the above, the trial Court framed as many as five charges as narrated in the first paragraph of the judgment. The accused denied the same. In order to prove the charges, on the side of the prosecution, as many as 16 witnesses were examined and 10 documents were exhibited, besides 2 material objects. Out of the said witnesses, P.W.1 has spoken about the alleged sexual intercourse she had with the first accused on 21.10.2008.
P.W.2 the father of P.W.1 has stated that he was told by Mrs.Mariammal about the above occurrence. He has further stated that when he along with the other relatives, went to the house of the appellants to request him to marry P.W.1, he declined to marry, demanding Rs.1 lakh as dowry. The accused 2 and 3 also demanded dowry. P.W.3, an uncle of P.W.1 has stated that he also heard about the occurrence. He has further stated that he accompanied P.W.2 to the house of the appellants to request to marry P.W.1. But since he demanded dowry, the marriage proposal was dropped. P.Ws.4 and 5 were examined to speak about the observation mahazar, but they have turned hostile and they have not supported the case of the prosecution in any manner.
2.4. P.W.6 is yet another uncle of P.W.1. He has stated that during the month of December 2008, the appellant and his uncle, came to his house and told him that he and P.W.1 had lived together as husband and wife for some time. When P.W.6 wanted the first accused to marry P.W.1, he declined. Therefore, according to P.W.6, the marriage proposal could not fructify. P.W.7 has turned hostile and he has not supported the case of the prosecution in any manner. P.Ws.9 to 12 are the Doctors, who have given opinion as narrated already. P.W.14 is the chemical analyst, who has stated that there was no semen found on the vaginal smear taken from P.W.1. P.W.15 has spoken about the registration of the case. P.W.16 has spoken about the investigation done.
2.5. When the above incriminating evidences were put to the accused under Section 313 Cr.P.C., they denied the same as false. On their side, three documents were exhibited. According to A-1, on 21.10.2008, at about 7.30 a.m., when he was at his house, P.W.2 and his relatives came to his house and severely beaten him up. He was hospitalised on the same day for treatment for the injuries sustained in the occurrence. In connection with the same, on his complaint, dated 21.10.2008, a case in Crime No.91 of 2008 was registered on the file of the Panavadalichathiram Police Station. Ex.D1 is the complaint and Ex.D2 is the FIR and Ex.D3 is the wound certificate of the accused. On the side of the accused, the accused No.1 was examined as D.W.1. In his evidence, he has stated that when he was at his house at 7.30 a.m., on 21.10.2008, P.W.2 and others came and attacked him. He has further stated that since he did not agree for marriage with P.W.1, this false complaint has been made.
3. Having considered the above materials, the trial Court convicted the appellants as detailed in the first paragraph of the judgment and that is how, they are before this Court with this appeal.
4. I have heard the learned counsel for the appellants, the learned Additional Public Prosecutor and I have also perused the records carefully.
5. Today, when the appeal was taken up for hearing, the learned counsel for the appellants produced a joint compromise memo signed by the appellants and P.W.1. The learned counsel for the appellants and the counsel for the de-facto complainant Suganya have also signed. In that memo, it is stated that on 02.03.2015, the first accused has married P.W.1 and they have been living happily as husband and wife and that out of the said wedlock, now P.W.1 is pregnant and she is carrying four months foetus in her womb. Further, they have stated that since they have married and since they are living happily, the compromise may be accepted and the appellants may be acquitted. The said compromise memo shall form part of the record of this Court.
6. In my considered view, going by the fact that Accused No.1 has been convicted for offences under sections 376 IPC, which is not compoundable, this Court cannot act upon the said compromise memo. Therefore, this Court called upon the learned counsel for the appellants to argue the case on merits.
7. The learned counsel for the appellants would submit that it is on record that P.W.1 was aged more than 18 years as on the date of occurrence. He would further submit that there is enough evidence to show that P.W.1 and A1 had fallen in love for a long time. He would further submit that so far as the sexual intercourse, which, A1 allegedly had with P.W.1 on 21.10.2008, there is no clear evidence. He would point out that as per Ex.P1 complaint, the act of sexual intercourse happened at the house of Mrs.Mariammal. But, according to the evidence of P.W.1 and the charge framed in this case, the occurrence had taken place in the cattle shed of Mrs.Mariammal. Referring to the rough sketch drawn by the Inspector of Police showing the place of occurrence, the learned counsel for the appellants would point out that the cattle shed belonging to Mrs.Mariammal and the house of Mrs.Mariammal are at a long distance. In between these two places, the house of one Thangasamy, S/o.Mandhiram, is situated and there is also a vacant site. The learned counsel would point out that the distance between these two places, namely the house of Mariammal and the cattle shed must be around more than , a kilometer. Thus, according to the learned counsel, regarding the alleged act of A1 amounting to rape, absolutely, there is no consistent evidence, which could be acted upon. The learned counsel would further submit that assuming that they had sexual intercourse on 21.10.2008, it is out of consent and therefore, offence under Section 376 IPC would not be attracted. He would submit that first of all, he did not give any promise for such marriage. The learned counsel would further submit that so far as the offence under Section 417 is concerned, A1 did not decline to marry P.W.1. Regarding dowry demand also, the learned counsel would submit that there is no consistent evidence.
8. The learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, P.W.1 was only 17 years of age at the time of occurrence. He would further submit that so far as the opinion given by the Doctors regarding the age of P.W.1, it is only approximate, which will carry two years of margin on either side. The learned Additional Public Prosecutor would, therefore, submit that P.W.1 was not competent to give free consent for sexual intercourse. He would nextly submit that the consent obtained from P.W.1 by A1 may not be taken as a free consent in terms of Section 375 IPC, because, consent was obtained under a false promise of marriage. The learned Additional Public Prosecutor would further submit that the medical evidence also supports the case of the prosecution. He would further submit that according to the Doctor, P.W.1 would have had sexual intercourse long before. This opinion of the Doctor, according to the learned Additional Public Prosecutor, would duly corroborate the evidence of P.W.1. He would further submit that having given a promise to marry, and after having sex with P.W.1, P.W.1 had refused to marry P.W.1 demanding dowry. Thus, the consent obtained by deception is no free consent of P.W.1 and thus the offence under Section 376 has been proved, he contended. Similarly, for having deceived P.W.1 to consent for sexual intercourse, A1 is liable for conviction under Section 417 IPC, he contended. Thus, according to him, the appellant has committed offences under Sections 376 and 417 IPC and Section 4 of Dowry Prohibition Act. Similarly, the Accused 2 and 3 have committed offence under Section 4 of the Dowry Prohibition Act. So far as the compromise is concerned, the learned Additional Public Prosecutor would submit that in the case of rape, compounding of the offences is not possible, legally.
9. I have considered the above submissions.
10. From the evidence of P.W.10, Doctor Kulandhai Velu, the prosecution has established that as on the date of alleged occurrence, P.W.1 had completed 18 years of age and not completed 19 years of age. Though P.W.1 was studying in a Polytechnic, neither the school certificate showing the date of birth of P.W.1 has been produced, nor, the birth certificate of P.W.1 has been produced. The prosecution relies only on the evidence of P.W.10, in respect of the age of P.W.1. Though in the complaint, her age has been mentioned as 17, there is no proof for the same. At any rate, there can be no difficulty in safely concluding that as on the date of occurrence, P.W.1 had completed atleast 16 years of age.
11. According to Section 375 IPC, as it stood prior to the amendment made by means of the Criminal Law (Amendment) Act 2013 with effect from 03.02.2013, if a man had sexual intercourse with a woman with or without her consent, when she is under 16 years of age, the said act of the man would amount to offence of rape punishable under Section 376 IPC. Thus, as on the date of alleged occurrence in this case, as per the un-amended Indian Penal Code, the age of P.W.1 for giving consent must be under 16 years. In the instant case, P.W.1 had completed 16 years of age and therefore, she was legally competent to give free consent for sexual intercourse.
12. The next question is whether, on 21.10.2008, accused No.1 had penile sexual intercourse with P.W.1. According to her evidence, A1 met her and requested her to come to the cattle shed of her aunt for a chitchat. She followed him. On reaching the cattle shed, it is stated that he wanted to have sex with her. She declined. But the accused No.1 told her that he would marry her. It has been stated by P.W.1 that even thereafter she did not agree for him to have sex with her, but by force, he had sexual intercourse with her. When she cried out of pain, he closed her mouth with his hands. Thus, according to the evidence of P.W.1, without her consent, the accused had sexual intercourse with her by force. Therefore, it has to be examined whether any such occurrence would have taken place on 21.10.2008, as it has been spoken by P.W.1. As pointed by the learned counsel for the appellants, according to Ex.P1 - complaint, on 21.10.2008, when P.W.1 was at the house of her aunt Mrs.Mariammal, A1 came there promised her to marry and then with her consent, he had sexual intercourse at the house of Mrs.Mariammal. Thus, according to the complaint, the occurrence was at the house of Mariammal. But from the rough sketch and from the other evidence available, it is crystal clear that the house of Mrs.Mariammal and the cattle shed of Mrs.Mariammal are at a long distance. Almost the distance between these two must be around , kilometer. There is a house of yet another person between these places and there is also a vacant place. Thus, as rightly pointed out by the learned counsel, there is no consistent evidence as to whether the occurrence had taken place at the house of Mrs.Mariammal or at the cattle shed of Mrs.Mariammal. The only eye witness to the occurrence Mrs.Mariammal was also no more and thus, the prosecution did not have the benefit of examining her. Thus, the above major contradiction has not been explained away by the prosecution.
13. Next, according to A1, on 21.10.2008, at about 7.30 a.m., when he was at his house, P.W.2 and others came to his house and severely beaten him up and immediately he went to the police station and preferred a complaint to the police. Ex.D1 is the complaint and Ex.D2 is the FIR. Thus, the complaint was recorded from A1, while he was in the Sankarankovil Government Hospital undergoing treatment as inpatient for the injury sustained in the accident. Ex.D3 is the Accident Register, which shows that he was admitted at 11.57 a.m., on 21.10.2008. He had told the Doctor that he was assaulted with stick (kambu) and wooden pestle (ulakkai) by two known persons. According to the medical records, he had sustained as many as four injuries. It is the evidence of A1 as D.W.1 that since he was in the hospital at the relevant time, there would have been no occasion for him to meet P.W.1 and to have sexual intercourse with her on 21.10.2008 at 9.00 a.m. The prosecution has not at all explained the above anomaly in the case of the prosecution. When Investigating Officer was cross examined in respect of the above facts, he has disowned the knowledge of the above case at all.
14. In this background, now, we have to evaluate the delay in preferring the complaint. The alleged occurrence was on 21.10.2008, whereas, the complaint was preferred only on 12.12.2008, i.e., nearly after 52 days. Absolutely, there is no explanation for the said delay. According to the learned counsel for the appellants, since case had already been registered against P.W.2 and others, under Ex.D2, as early as on 25.10.2008 itself, as a counterblast, this complaint has been made falsely. In a case of rape, since what is injured is not only the body but the soul of the victim also and since such a victim of rape would be under trauma, one cannot expect her to go to the police with complaint immediately. But, in this case, it is not as though P.W.1 was in trauma. She told her aunt on 21.10.2008 that she was going to marry A1. It appears that on 21.10.2008, because of some dispute, P.W.2 and his family members had attacked A1. In this background, in my considered view, the delay in this case assumes some importance. This also creates some doubt in the case of the prosecution.
15. Assuming that on 21.10.2008, A1 had penile sexual intercourse with P.W.1, there is enormous evidence to show that P.W.1 was a consenting party for the same. She has admitted during cross examination that they had fallen in love with each other and they decided to marry. P.W.6 has stated that P.W.1 told him that she and the first accused had lived together as wife and husband for some time. Therefore, it cannot be stated that A1 had forcible intercourse with P.W.1. To that extent, the evidence of P.W.1 cannot be believed. At the most, it can be inferred that P.W.1 had given full consent for sexual intercourse, because they had already decided to marry. The marriage proposal had broken obviously, because of the registration of the case against P.W.2 and others. Therefore, the contention that consent was obtained by false promise cannot be accepted. Thus, I hold that the prosecution has failed to prove the offence under Section 376 IPC.
16. So far as the offence under Section 417 is concerned, in view of the fact that there was already a case registered against P.W.2 and others, the marriage proposal would have been dropped. Apart from that, the accused No.1 and P.W.1 had mutually agreed to marry and there was no false promise also. The demand of dowry, in my considered opinion, cannot be true and to that extent, the evidences of the witnesses cannot be believed for the simple reason that these witnesses are all motivated, because a criminal case had already been registered against P.W.2.
17. Turning to the compromise memo filed before this Court, as I have already pointed out, this Court cannot act upon the same to acquit the accused. But I referred to the compromise memo only to strengthen my conclusion that there was love affair between the accused No.1 and P.W.1 and now they have married and they are living happily and out of the said wedlock P.W.1 is now pregnant.
18. In view of all the above, I hold that the prosecution has not proved the case beyond reasonable doubts and therefore, the appellants are entitled for acquittal.
19. In the result, the criminal appeal is allowed. The conviction and sentence imposed on the appellants are set aside and they are acquitted. Fine amount, if any paid by them, shall be refunded. Bail bond shall stand terminated.
To
1.The Sessions Judge (Mahila Court) Tirunelveli.
2.The Inspector of Police, Town Police Station, All Women Police Station, Sankarankovil
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.