Madras High Court
Kanthasamy vs State By Sub Inspector Of Police on 30 January, 2014
Author: M. Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE OF MADRAS AT MADURAI BENCH DATED :30. 01.2014 CORAM THE HONOURABLE Mr. JUSTICE M. VENUGOPAL Crl.R.C.(MD) No.67 of 2013 & M.P.No.4 of 2013 Kanthasamy ... Petitioner Vs State by Sub Inspector of Police All Women Police Station, Manapparai, Trichy District. (Cr.No.10 of 2008) ... Respondent PRAYER This Criminal Revision Petition is filed under Section 397 read with 401 of the Code of Criminal Procedure, 1978 against the judgment passed in C.A.No.2 of 2012 on the file of the Third Additional District Judge, Tiruchirapalli dated 12.12.2012 by confirming the judgment in C.C.No.100 of 2011 on the file of the Judicial Magistrate, Manapparai dated 12.12.2011. !For Petitioner ... Mr.K.Mariyappan ^For Respondent ... Mr.P.Kandasamy Government Advocate (Crl.side) :ORDER
The Petitioner/A1 has focused the instant Criminal Revision Petition as against the Judgment dated 12.12.2012 in C.A.No.2 of 2012 passed by the Learned 3rd Additional District Judge, Tiruchirapalli in affirming the judgment dated 12.12.2011 in C.C.No.100 of 2011 passed by the Learned Judicial Magistrate, Manapparai.
2. Earlier, the Learned Judicial Magistrate, Manapparai, in the judgment dated 12.12.2011 in C.C.No.100 of 2011 on an appreciation of entire oral and documentary evidence on record has come to a resultant conclusion that the offence under Section 506(i) of Indian Penal Code against the Revision Petitioner/A1, A2 and A3 have not been proved and acquitted them by granting the benefit of doubt in their favour. However, in respect of offence Under Section 417 of Indian Penal Code, the trial Court found the Revision Petitioner/A1 guilty and convicted him by awarding a sentence of one year simple imprisonment and further directed the Revision Petitioner/A1 to pay a sum of Rs.1,00,000/- as compensation to P.W.1 (victim) under Section 357(3) of Criminal Procedure Code. Further, in default on payment of aforesaid compensation amount by the Revision Petitioner/A1, has directed him to undergo a simple default sentence for a period of three months and also, directed him to pay the aforesaid compensation amount of Rs.1,00,000/- to P.W.1 in five maximum instalments within a period of six months from the date of passing of the judgment.
3. Being dissatisfied with the judgment dated 12.12.2011 in C.C.No.100 of 2011 passed by the Learned Judicial Magistrate, Manapparai, the Revision Petitioner/A1 has an aggrieved person preferred the Criminal Appeal No.2 of 2012 on the file of the Learned 3rd Additional District Judge, Trichirappalli.
4. The Learned 3rd Additional District Judge, Trichirappalli (the First Appellate Court) in the judgment dated 12.12.2012 in Criminal Appeal No.2 of 2012 by dismissing the Appeal. However, the First Appellate Court in the judgment has observed that it has confirmed the order of conviction and sentence imposed by the Learned Judicial Magistrate for the offence under Section 417 of Indian Penal Code, thereby, directing the Revision Petitioner/A1 to undergo one year Rigorous imprisonment (in reality the trial Court has only awarded one year simple imprisonment) and also confirmed the award of compensation of Rs.1,00,000/- imposed by the trial Court. That apart, the Revision Petitioner/A1 was directed by the First Appellate Court to remit the entire compensation of Rs.1,00,000/- within one month from the date of judgment in C.A.No.2 of 2012 dated 12.12.2012 and also directed him to surrender before the trial Court to undergo the rest of the punishment period.
5. The Revision Petitioner's Contentions:
The Learned Counsel for the Revision Petitioner/A1 urges before this Court that the judgment of the trial Court in C.C.No.100 of 2011 dated 12.12.2011 as well as the judgment of the First Appellate Court in C.A.No.2 of 2012 dated 12.12.2012 are against Law and probabilities of the case.
6. According to the Learned Counsel for the Revision Petitioner/A1, the First Appellate Court as well as the trial Court have not taken into consideration the evidence of prosecution witnesses (which are contradictory in nature) in proper and real perspective and which has resulted in serious miscarriage of justice.
7. Advancing his arguments, the Learned Counsel for the Revision Petitioner/A1 contends that the First Appellate Court as well as the trial Court should not have believed the version, and anecdote of the prosecution, inasmuch as the story of the prosecution has been clearly contradicted by the prosecution witnesses.
8. The Learned Counsel for the Revision Petitioner/A1 projects an argument that the complainant lodged the complaint with an inordinate and unreasonable delay and the same was not properly explained.
9. Apart from the above, the Learned Counsel for the Revision Petitioner/A1 submits that there is a flaw in proving the evidence of the medical examination and that the medical evidence is a put up one.
10. Lastly, the Learned Counsel for the Revision Petitioner/A1 strenuously contends that both the Courts below had convicted the Revision Petitioner/A1 on flimsy reasons.
11. The Petitioner's Citations:
The Learned Counsel for the Revision Petitioner/A1 cites the order of this Court dated 01.04.2012 in Criminal O.P.1273 of 2011 and M.P.Nos.1 & 2 of 2011 between K.U.Prabhu Raj V. State by Sub Inspector of Police, A.W.P.S Tambaram and Another, whereby and whereunder in paragraph Nos.15 to 22, it is observed and laid down as follows:
"15. Before going into the judgments relied on by the learned counsel on either side, let us have a look into Section 415 I.P.C., "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 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."
16. A cursory perusal of the above provision would make it clear that there are atleast three essential ingredients constituting an offence of cheating which should be made out from the materials available on record. They are as follows:-
"(1) Deception of any person;
(2) Fraudulently or dishonestly inducing that person
(i) To deliver any property to any person or;
(ii) To consent that any person shall retain any property, or and (3) Intentionally inducing that person 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."
17. The learned counsel for the second respondent would further submit that the offence involved in this case falls within the ambit of the third limb of Section 415 I.P.C as enumerated above. According to the learned counsel, but for the promise made by the petitioner, the daughter of the second respondent would have married someone-else and settled down in her life. Thus, according to him, the petitioner has committed a clear offence of cheating. In my considered opinion, it is not so. As has been held by the division Bench of the Calcutta High Court in Abhoy Pradhan V. State of W.B. Case (cited supra), mere promise to marry and later on withdrawing the said promise will not amount to an offence of cheating at all. On such false promise to marry, the person to whom such promise was made should have done or omitted to do something that he would not done or omitted to do but for the deception. In this case, absolutely, there are no materials available on record to show that because of the promise made by the petitioner, the daughter of the second respondent has done anything or omitted to do something which has the tendency to cause damage or harm to the body or mind or reputation or property of the daughter of the second respondent. In the absence of the same, the entire allegations found in the records, in my considered opinion, would not make out an offence under Section 417 or 420 I.P.C., at all.
18. In G.V.Rao V. L.H.V Prasad and others's case, (cited supra), the Hon'ble Supreme Court has held that there should have been inducement, either dishonestly or fraudulently, and because of such inducement, the person induced should have done or omitted to do something which she would not have otherwise done or omitted to do. As I have already stated, in this case, absolutely there is no such material on record to satisfy the above requirement.
19. Now turning back to the judgment in Gopu Seshasayee V. State case (cited supra), this Court has reiterated that mere deception is not a criminal offence. Mere dishonestly is also not a criminal offence. This Court has held that there are two elements in the offence of cheating, namely deception or dishonest intention to do or omit to do something. This judgment also reaffirms the view which I have taken herein before.
20. Now coming to the judgments of this Court in Ravichandran caseand Chitra case (cited supra), in those cases, acting on the false promise made by the accused, the victim allowed the accused to exploit her sexually which resulted in pregnancy. Thereafter, the accused declined to marry. In those cirumstances, this Court held that the victim girl had allowed her to be exploited sexually because of the false promise made by the accused. But in the instant case, the daughter of the second respondent did not do anything out of inducement made by the petitioner to marry her. In such view of the matter, the said judgments are not at all applicable to the facts of the present case.
21. Now coming to the maintainability of this petition, it is ofcourse, true that when there is alternative remedy of filing a petition available for the petitioner, this Court keep restrained and declined to invoke the power of this Court under Section 482 Cr.P.C., but there is no absolute bar to invoke the inherent power of this Court (vide the judgment of the Hon'ble Supreme Court in Punjab State Warehousing Corporation Ltd., V. Durgaji Traders (2012(2) MLJ Crl.200(SC). In a rare case, when it is made clear that the prosecution is absolutely baseless, it is for this Court to invoke its inherent jurisdiction. In this case, as I have already stated, absolutely there is no material available on record for allowing the prosecution to go further, since neither an offence under Section 417 I.P.C., nor an offence under Section 420 I.P.C., is made out. Thus, in my considered opinion, as per the law laid down by the Hon'ble Supreme Court, in State of Haryana V.Bhajan Lal AIR 1992 SC 604 the present case is liable to be quashed.
22. In the result, the Criminal Original Petition is allowed and the case in C.C.No.937 of 2010 on the file of the learned Judicial Magistrate No.1, Tambaram, is quashed."
12. He also relies on the order dated 15.07.2013 in Revision Petition No.490 of 2010 between Sri Kumar V. The State of Karnataka By Hanur Police, Whereby and whereunder in paragraphs 4 to 7, it is observed as follows:-
"4. Heard on both side and perused the revision papers. The following point will arise for my consideration:
a. Whether the courts below are legally correct in convicting and sentencing the petitioner for the offence punishable under Section 417 of IPC.
5. A reading of the complaint Ex.P.7 dated 27.12.2003, specifies that the actual incident had taken place 20 days prior to the date of the complaint. There is no acceptable explanation for the inordinate delay.
6. Two days later from the date of lodging the complaint, the victim was subjected to medical examination on 29.12.2003. The wound certificate is marked as Ex.P.9. A perusal of the wound certificate do not specify that the petitioner had sexual intercourse with the complainant. Further, the author of the wound certificate - the doctor is not examined. Without considering these aspects of the matter, both the Courts below committed an illegality in holding that the prosecution has proved the charges levelled against the petitioner for the offence punishable under Section 417 of IPC.
7. In the instant case, victim is examined as P.W.10. Her sister is examined as P.W.1 and brother-in-law as P.W.2. The evidence of Pws.10 to 12 do not corroborate with each other. On the other hand, there are inconsistencies in the evidence of these three important witnesses. Again, the evidence of these three witnesses do not specify that the petitioner has sexual intercourse with the victim - PW 10. The medical 6 Sri Kumar Vs. The State of Karnataka on 15 July, 2013 Indian Kanoon - http://indiankanoon.org/doc/157314476/2 evidence on record and oral testimony of these witnesses again do not corroborate."
13. He seeks in aid of the decision of the Hon'ble Supreme Court Ram Jag and others V. The State of U.P., AIR 1974 SC 606: (1974) 3 SCR 9 : (1974) 4 SCC 201 : (1974) Cri L.J. SC 479, wherein it is observed as follows:
"fir - Delay - Condonation of - Long delay casts doubt about the prosecution case but it can be condoned if sufficiently explained. It is true that witnesses cannot be called upon to explain every hour's delay and a commonsense view has to be taken in ascertaining whether the first Information Report was lodged after an undue delay so as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case must depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.
In the instant case the importance of the question whether there was delay in filing the first Information Report is of a different order. The case of the appellants is that the occurrence must have taken place under the cover of darkness, that is, long after the time at which it is alleged to have taken place and that is why the first Information Report could not be lodged earliedr than at 12.30a.m. This defence is well founded and the High Court was clearly in error in discarding it.
The truth of the matter is that the occurrence had taken place long after 4 p.m. and witnesses were hard put to explaining why on their own theory they took more than 8 hours to cover a distance of 4 miles. They offered a fanciful explanation which was rightly rejected by the Sessions Court and was wrongly accepted by the High Court. "
14. Respondent's Submissions:
The Learned Government Advocate (Criminal side) submits that the trial Court, on an appreciation of oral evidence of prosecution witnesses and on consideration of documents marked, has come to a consequent conclusion that the Revision Petitioner/A1 was guilty in respect of an offence under Section 417 of Indian Penal Code and imposed a punishment of one year simple imprisonment and further, it directed the Revision Petitioner/A1 to pay a compensation of Rs.1,00,000/- to P.W.1 (victim) and an appeal being preferred by the Revision Petitioner/A1 in C.A.No.2 of 2012 has confirmed the conviction and sentence imposed by the trial Court in respect of the Revision Petitioner/A1 and dismissed the appeal, which need not be interfered with by this Court at this distant point of time.
15. The Resume of Evidence of prosecution witnesses:
At the out set, it is to be pointed out by this Court that P.W.1 (Victim - Dumb person) was examined before the trial Court with the assistance of one Anitha (Teacher), (brought from the deaf school, Ponmalaippatti). It is the evidence of P.W.1 that she was not doing any job and residing in her house and further, she knew the accused and the incident had occurred two years before (prior the date of deposition before the trial Court i.e. 16.11.2008) and the accused committed wrongful act and when no one person was present at about 10.00 a.m. and also at about 10.00 p.m. in the night, the Revision Petitioner/A1 came to her house and committed an offence on her. Further, P.W.1 (victim) in her evidence had deposed that the Revision Petitioner/A1 told her that he would marry her and also that, pulled her hand and that, she was four months pregnant and committed wrong and the Revision Petitioner/A1 committed the offence on her and because of his act, she became four months pregnant and further, he informed her that he would marry her and committed the offence on her and left the place and thereafter, he had not spoken to her.
16. It is the further evidence of P.W.1 (complainant) that she came to the police station and narrated the incident and the Revision Petitioner/A1 informed that he would marry her in the temple and latter, he resiled from his words and that, a child was born and the child died three days after its birth. Added further, P.W.1 had stated that prior to the acquaintance, the Revision Petitioner/A1 informed her that he would marry her and the incident had occurred because of the promise of marriage made by him.
17. Apart from the above, P.W.1 proceeds to state in her evidence that she along with her brother written a complaint and handed over the same to the police station and the police enquired us to what happened and the complaint shown to her, was the one lodged by her which was Ex.P1, in which the signature found belong to her.
18. P.W.1 (victim, in her cross-examination) had stated that she informed about the incident viz., the offence/wrong committed by the Revision Petitioner/A1, to her mother and her mother went to the Revision Petitioner/A1 house and enquired about the same and when the Revision Petitioner/A1 committed the offence on her, she had not raised noise to protect and also to leave her.
19. Further, it is the evidence of P.W.1 that at the time of lodging complaint at the police station, she was pregnant and in the 4th month, she gave a complaint and she informed her brother about the incident and her brother beaten her to say the truth and at that time, she narrated the incident. Moreover, she had informed her mother only after four months of the incident and she informed her mother, she was not getting monthly period also and because of her ill health, she went to the hospital and there, the doctor informed her that she was four months pregnant and the complaint was written at the police station at their instance/behest.
20. P.W.2 (mother of P.W.1/victim) in her evidence has stated that the Revision Petitioner/A1 is her brother son who own a cell phone shop near her house and he used to repair the cell phone and handed over the same to the nearby persons and he followed her daughter in whichever directions she went and also used to come to her house and since he is her relative, she had not reprimanded him. P.W.2 in her evidence further deposed that two years before when her daughter P.W.1 went for cattle grazing for the purpose of cutting the grass, the Revision Petitioner/A1 dragged her daughter by pulling her hand to a no man land and caused hardship to her and took her to the tank bed and committed the offence by spoiling her. Further, her daughter (P.W.1) had not informed her nothing and was not keeping good health from that day onwards. Also that, she was four months pregnant. It is the evidence of P.W.2 that P.W.1 gave birth to one male and female child and they died on the next day of their birth and that, the children were born to her daughter at Manapparai Government Hospital.
21. P.W.3 (brother of P.W.1) in his evidence had stated that his sister (P.W.1) went to the field for cutting the grass at "Suraikkadu" and the Revision Petitioner/A1 by compulsion spoiled her and because of that, she became pregnant and later, they went to the police station and gave a complaint and he does not properly remember the date of offence viz., on 15.11.2008. Also, it is the evidence of P.W.3 that on the date of occurrence, he went to the garden and the Revision Petitioner/A1 used to come to his house and to the Kadu and in the women police station, he along with his sister gave a petition in writing on narration of the incident by her sister, the complaint was written in the police station.
22. P.W.4 (Palaniammal) in her evidence had deposed that she was informed about the date of occurrence on 15.11.2008 and since the Revision Petitioner/A1 and P.W.1 committed the wrongful act, P.W.1 became pregnant and she was informed like that and that, out of the two children born to P.W.1 (victim) one girl child died after birth.
23. It is the evidence of P.W.5 that on the village side, he own's a garden and in the said garden, he had raised bottle gourd (Suraikkai) in three Acres and that, P.W.1 was cutting the grass on 13.05.2008 and the Revision Petitioner/A1 came to his garden and after seeing P.W.1, without talking to her went in a different way viz., to the place where P.W.1 was there and he witnessed all the happenings and the Revision Petitioner/A1 pulled the hand of P.W.1 and after hugging, he took her to the tank bed and after seeing this, he informed the Revision Petitioner's/A1's father and on 15.11.2008, the ladies after indulging in group talking and informed him that P.W.1 was pregnant and called him to come along with them to ask about the same and thereafter, he informed the parents of the Revision Petitioner/A1.
24. P.W.6 (Azhagammal) in her evidence had stated that she knew the P.W.1 (victim) and the Revision Petitioner/A1 and also used to come to P.W.1's house frequently and a woman dressed in hockey shirt came at about 10.00 a.m. in the morning and prepared a plan and after making enquiry, asked her signature in Ex.P2 observation Mahazar and she affixed her signature in the house of P.W.1.
25. P.W.7 (Shanmugalakshmi/S.I of Police presently at Kattuputhur Police Station) in her evidence had stated that during the year 2008, she was in charge of the Manapparai police station, Law branch, as Sub Inspector of Police, and at the Manapparai Women police station on 16.12.2008 one Panchavarnam (P.W.1) of Chokkampatti Village came to the police station and presented a complaint which was received by her and registered a case in Crime No. 10 of 2008 under Sections 417, 420 and 506(i) of Indian Penal Code and the First Information Report registered by her was Ex.P3 and later, she went to the occurrence place on 16.12.2008 at about 17.30 hours and examined the witnesses Chinnammal, Azhagammal etc., and prepared observation Mahazar Ex.P.2, Plan/Sketch Ex.P4 and recording the statement of P.W.1 (Panchavarnam), P.W.2 (Chinnathal), P.W.3 (Kannuchamy), P.W.4 (Palaniammal), P.W.5 (Panneerselvam), P.W.6 (Azhagammal), P.W.7 (Chinnammal) and on 16.07.2008 (in reality 16.12.2008) at about 17.45 hours, she arrested Chinnammal (Mother of the Revision Petitioner/A1) near Chokkampatti bus stop (after her assigning reasons) and brought her to the police station and handed over her to the para at 18.30 hours and sent her to the judicial remand at about 18.30 hours.
26. Further, the Revision Petitioner/A1 and A2 (father of A1) Vallaisamy surrendered before the Court and after completing the investigation on 17.07.2009, she laid the charge sheet against the Revision Petitioner/A1, Vallaisamy A2 and Chinnammal A3 under Sections 417, 420, 506(i) of Indian Penal Code.
27. P.W.7 also added in her evidence that on 18.12.2008, she sent P.W.1 for medical examination (through Court) and obtained the report and on 30.12.2009, she sent a letter to medically examined the Revision Petitioner/A1 and after obtaining the report, finally laid the charge sheet and the Accident Register copy of P.W.1 was marked as Ex.P5 and Ex.P6 was the proof for sending the Revision Petitioner/A1 for medical examination.
28. Analysis:
It comes to be known that the P.W.7 (then S.I of Police and subsequently retired Inspector of Police) laid the charge sheet in Crime No.10 of 2008 on the file of the Manapparai, All Women Police Station against the Revision Petitioner/A1, A2 and A3 under Sections 417, 420 and 506(i) of Indian Penal Code. The gist of the charge sheet is that the complainant and accused (A1 to A3) are residing at Chokkampatti Village at Manapparai Taluk within the police limits of Valanadu Police Station and witness No.1 Panchavarnam and A1 Kandasamy (Revision Petitioner) loved each other and later, he spoke luring words and made her believe and the Revision Petitioner/A1 on 01.08.2008 had sexual intercourse in the house of witness No.1 and later, she informed about her pregnancy to him, for which he refused to marry her. Further, on 15.11.2008 morning witness No.1 Panchavarnam and other witnesses Chinnathal and Kannusamy went to the Revision Petitioner's/A1's house and narrated the happening of the occurrence and when they asked for marrying the complainant - Panchavarnam by the Revision Petitioner/A1, A1 to A3 joined together and they threatened the complainant Panchavarnam and others by uttering of leave the place immediately, otherwise, they have murdered and for this fashion, they intimidated them. Therefore, the conduct of the Revision Petitioner/A1 was an offence under Sections 417, 420 and 506(i) of Indian Penal Code, likewise, the conduct of A2 and A3 was an offence under Section 506(i) of Indian Penal Code.
29. The trial Court based on the allegations and materials on record, framed charges against the Revision Petitioner/A1 under Sections 417 and 506(i) of Indian Penal Code. Likewise, the A2 and A3 (father and mother of the Revision Petitioner/A1) were charged by the trial Court under Section 506(i) of Indian Penal Code.
30. A perusal of the Ex.P1 complaint of P.W.1 (Panchavarnam) (although undated but received at Manapparai P.S CSR No. 179 of 2008 and taken on file by the Manapparai All Women Police Station in Crime No.10 of 2008 on 16.12.2011) shows that she was aged about 20 years and residing along with her parents (address furnished in the complaint) and because of their family relationship, with her relative Kandasamy S/o. Vellaisamy (belonging to her village) was known to her very well and under these circumstances, the said Kandasamy (Revision Petitioner/A1) used to visit her house frequently and as such, she got acquainted with him. Further, she had stated that the Revision Petitioner/A1 informed her every now and then that he would like to marry her, for which, she replied that his parents should come and ask with her parents as per customs for marrying her.
31. Added further, in Ex.P1 Complaint, P.W.1 went on to add that in these circumstances, approximately four months before, when she was alone in her house at that time A1 came to her house and immediately, she informed him that her parents were not available in the house and therefore, she asked him to leave the place immediately. But, the Revision Petitioner/A1 spoke luring words to the effect that ' he would marry her' and by uttering luring words, he on compulsion spoiled her and since the Revision Petitioner/A1 had intercourse with her, she was presently four months pregnant and she informed about her pregnancy and asked the Revision Petitioner/A1 on numerous occasions to marry her but he refused. When her mother has informed the parents of the Revision Petitioner/A1, viz., Vallaisamy A2 (father), and Chinnammal A3 (mother), they refused to marry her with the Revision Petitioner/A1. Later, lastly, on 15.11.2008, when the village important persons called the Revision Petitioner/A1 and his parents, they refused to come and further, they were continuously intimidating her parents that they would murdered them.
32. The complainant (P.W.1/victim) deposed in her evidence (recorded on 16.08.2011) categorically stated that the incident had occurred two years before and the accused A1 to A3 committed the offence/wrong and the Revision Petitioner/A1 committed the wrong /offence at about 10.00 a.m., in the morning and 10.00 p.m in the night, when there was no one in her house. Further, she had stated that the Revision Petitioner/A1 informed her that he would marry her and pulled her hand and because of the wrong/offence committed by him, she became pregnant for four months and after committing the wrong /offence (rape) on her, the Revision Petitioner/A1 had not spoken to her and the child born to her died three days after its birth. Further, she had stated that the complaint shown to her was the one viz., Ex.P1 lodged by her in which she had affixed her signature and when the police enquired her, she narrated the happening of the occurrence/incident.
33. As a matter of fact, P.W.1 in her evidence had deposed that she was not going for any job and residing in the house and only when no one was in the house at about 10.00 a.m. and at about 10.00 p.m., the Revision Petitioner/A1 raped her.
34. Indeed, the Ex.P1 complaint lodged by P.W.1 (victim) was typed in Tamil and P.W.1 had affixed her signature in Tamil. Even though, P.W.1 (victim - dumb person) had not specifically mentioned the date of occurrence in her deposition but in her chief examination she had candidly stated that she was residing in the house and the incident had occurred two years before and that, the accused/A1 to A3 committed the wrongful act and when no one was present at about 10.00 a.m. in the morning and at about 10.00 p.m. in the night, the Revision Petitioner/A1 came and committed the wrongful act, yet in her complaint Ex.P1, P.W.1 (victim) had narrated the happening of the incident and also that, she spoke about act of rape on compulsion being committed on her by the Revision Petitioner/A1, because of which, she became pregnant and subsequently, the Revision Petitioner refused to marry her and as such, the non mentioning of the date of occurrence by P.W.1 in her evidence does not affect the case of the prosecution as opined by this Court. To put it precisely P.W.1/Complainant (victim) had categorically stated in her evidence that because of the rape committed on her by P.W.1, she was four months pregnant. Added further, notwithstanding, P.W.1 in her evidence had stated that she along with her brother gave a written complaint and on perusal of the Ex.P1 complaint, though the contents were in Tamil typing yet the minor discrepancy in this regard was not fatal to the prosecution case in the considered opinion of this Court. Furthermore, she had stated that police had enquired with her and Ex.P1 (complaint shown to her before the trial Court) she had admitted that her signature was found in Ex.P1.
35. In her cross-examination, P.W.1 had clearly stated that when she was pregnant, she lodged a complaint at the police station and further, within four months she gave the complaint and added further, in her cross-examination she had stated that she was not remembering presently the date of occurrence.
36. It is the evidence of P.W.2 (mother of P.W.1/victim) that two years before, when P.W.1 went for cattle grazing (viz., for cutting the grass for feeding the cattle normally) in no man place, the Revision Petitioner/A1 dragged/pulled her daughter's (P.W.1's) hand and caused hardship by committed rape on her at the tank bed side.
37. P.W.3 (brother of P.W.1 and son of P.W.2) had also deposed that the Revision Petitioner/A1 put cloth on the mouth of his sister P.W.1, when she went for cutting the grass in the field at Suraikkadu, the Revision petitioner/A1 by force committed rape on her and because of that, she became four months pregnant etc.,
38. P.W.4 (relative of P.W.1/complainant and the Revision Petitioner/A1) in her evidence has stated that he came to know that P.W.1 was pregnant and the incident had taken place on 15.11.2008 and that, since because of the offence/wrong committed by the Revision Petitioner/A1 and P.W.1, the P.W.1 became pregnant.
39. P.W.5 in his evidence had stated that on 13.05.2008 village side, he owns a garden measuring an extent of 3 acres in which he had raised vegetable bottle gourd (Suraikkai) and when P.W.1 was cutting the grass, the Revision petitioner/A1 came to his garden and after seeing Panchavarnam (P.W.1) without talking to her, came in the different path/way reached the place of P.W.1 and he hugged and took her to the tank bed.
40. P.W.7 (the then S.I of Police of Manapparai All Women Police Station) had deposed in her evidence that she knows the physical disabilities of P.W.1 (i.e. she cannot hear properly and cannot speak properly through her mouth) but P.W.1 said that if spoken loudly, she would understand.
41. The aforesaid evidence of P.W.2 to P.W.5 as to the manner of happening of occurrence/incident and the date of occurrence are contradictory and exaggerated in nature as opined by this Court. As such, this Court discards their evidence as to the date and manner of occurrence. In fact, their deposition as to the date and manner of the occurrence are not helpful/useful for the prosecution. As such, this Court is not accepting the same since they are unworthy of credence.
42. At this stage a mere running of the eye of the contents of Ex.P5 Accident Register (in respect of P.W.1/victim aged about 24 years) shows that the doctor had examined P.W.1 on 19.12.2008 at about 10.45 a.m. stating that she was carrying 18 weeks fetus. In fact, Ex.P5 the Accident Register was marked through S.I of Police (I.O). Also that, the Revision Petitioner/A1 was radiologically examined by the Doctor/Police Surgeon (professor and HOD of Forensic Medicine, K A P Viswanatham Government Medical College, Periyamilaguparai, Tiruchirapalli - 1) who issued a Ex.P6 age certificate to the Revision Petitioner/A1 stating that he was aged about 21 years.
43. Furthermore, in Ex.P6 (Age Certificate) the doctor had mentioned in the certificate in respect of the Revision Petitioner/A1 that he was of the opinion that the individual was examined and there was nothing to suggest that he was not capable of taking part in sexual intercourse.
44. In view of Ex.P5 Accident Register and Ex.P6 (Age Certificate), it cannot be said there is flaw in proving the evidence of medical examination. Also, the plea taken on behalf of the Revision Petitioner/A1 that the medical evidence is a put up one in the present case is outrightly rejected by this Court.
45. Coming to the evidence of prosecution witnesses in respect of the offence under Section 506(i) of Indian Penal Code in respect of A1 to A3, it is to be pointed out by this Court that they had not the witnesses, are not deposed that A1 to A3 had intimidated them. Therefore, rightly the trial Court had came to the conclusion that the offence under Section 506(i) of Indian Penal Code imposed on the Revision petitioner/A1, A2 and A3 was not proved and acquitted them.
46. At this juncture, this Court very pertinently points out that Section 417 of the Indian Penal Code deals with punishment for cheating. The salient ingredients for an offence under Section 417 of Indian Penal Code are as follows:-
(a) Accused fraudulently or dishonestly induced complainant.
(b) To deliver some property either to accused or to some other person.
(c) To consent that accused or some other person will retain the property.
(d) Accused intentionally induced complainant to do a thing which he/she would not do or to omit to do a thing which he/she would not have omitted to have done if not so deceived.
(e) Such act has caused or was likely to cause some damage or harm in his body, mind reputation or the property.
Section 417 of IPC provides punishment for simple cheating, elements of which are deceit and inducement. There must be some evidence of fraudulently dishonestly intention at the time of commission of the offence.
47. Dealing with the aspect of delay in lodging of the First Information Report by the Complainant (P.W.1), in the instant case on hand, this Court makes a significant mention that delay in lodging first Information Report by itself cannot be a ground to doubt about the prosecution case. It is to be borne in mind that Law has not prescribed any time limit for filing of the First Information Report. Therefore, a delayed FIR is not an illegal one as opined by this Court. After all, a Court below is to seek an explanation for the delay and test the veracity, truthfulness and plausibility of the reasons mentioned therefor. However, if the delay in question is satisfactory explained, then, the said delay cannot be put against the prosecution.
48. In this connection, this Court aptly points out the decision Ramdev and others V. Sate of Rajasthan, 2003 CRI.L.J at page 1680, wherein it is observed and held that "where evidence of direct eye-witness are reliable and trustworthy, mere delay in filing FIR would be no ground to discard the entire prosecution case.
49. Also, this Court worth recollects and recalls the decision of the Hon'ble Supreme Court Tulshidas Kanolkar Vs. State of Goa, (2003) 8 Supreme Court Cases 590 and at special pages 592 & 593, wherein at paragraph 6, it is observed as follows:-
" Non-examination of some persons per se does not corrode the vitality of the prosecution version, particularly when the prosecutrix has, notwithstanding her mental deficiencies, withstood incisive cross- examination and pointed to the appellant as the perpetrator of the crime. The plea of consent is too shallow to even need detailed analysis or consideration. A mentally challenged girl cannot legally give a consent which would necessarily involve understanding of the effect of such consent. It has to be a conscious and voluntary act. There is a gulf of difference between consent and submission. Every consent involves a submission but the converse does not follow, and mere act of submission does not involve consent. An act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance or passive giving-in when the faculty is either clouded by fear or vitiated by duress or impaired due to mental retardation or deficiency cannot be considered to be consent as understood in law. For constituting consent, there must be exercise of intelligence based on the knowledge of the significance and the moral effect of the act. A girl whose mental faculties are undeveloped, cannot be said in law, to have suffered sexual intercourses with consent."
50. It is to be remembered ordinarily that only after giving it a cool, calm and collective thought on arrival of elders in the family, that a complaint of sexual offence is lodged. Also, one cannot ignore a vital fact that where the allegations made in the First information report are not substantiated during the trial of the criminal case by any oral evidence, an accused cannot be convicted on the basis of mere allegations in FIR as opined by this Court. Further, "the First information report is not a substantiative evidence and can be relied upon if it is corroborated by other evidence which is cogent" in the considered opinion of this Court.
51. That apart, FIR cannot be relied upon, when it lacks spontaneity. It cannot be gainsaid that a mere delay in recording FIR is not a ground to reject the story of the prosecution. Only rider is that, it puts the Court on guard and issues a warning signal that the prosecution story may contain an exaggerated version. But the duty of the Court below is to apply its judicial thinking mind is that with zeal to look out for corroboration from any direction whatsoever for finding out the real truth. Even a long delay can be condoned, if the witnesses have no motive for implicating the accused. The first information report can be pressed into the service as a previous statement for the purpose of corroboration or contradiction of its make care in terms of section 157 or 145 of the Indian Evidence Act.
52. Significantly, in the decision Devalla Raghavulu V. State of Andhra Pradesh, 2005 CRI.L.J.1041 and at special pages 1042 & 1043, in paragraphs 11 to 16, it is observed and laid down as follows:
"11. It is not in controversy that P.W.2 is a mentally retarded and dumb girl and she is unable to state the offence committed by the accused. P.W.1 in her evidence deposed that the distance between her house and the house of accused is about one furlong. She deposed that at about one year eight months back at about 12-00 noon, P.W. 2 went to attend to the calls of nature by saying to her and she returned at about 2 P.M. and at that time she observed that her clothes were stained with blood and she was not in a position to stand firmly (Padatha Lestha Vunnadhi) and she was weeping, P.W. 1 further deposed that she had examined P.W. 2 by lifting her petticoat and observed the blood on her legs and at that time her daughter was holding pipperments in her hand, and then she had taken her daughter inside the house and her neighbour by name Basavamma came, and observed the victim-girl and they found bleeding from the private parts. P.W. 1 also deposed that she questioned her daughter P.W. 2 as to how she sustained injury and on that P.W. 2 had shown her hand by signing towards outside and then, P.W. 1 had taken her daughter and went towards western side of the road as per the signs given by her daughter, and her daughter Ramanamma directly took away to the house of the accused and when she went to the house of the accused, the accused was present in the house and P.W. 1 observed blood- stained marks from inside the house to the outside of the house and she questioned the accused in the presence of Basavamma and then they had taken P.W. 2 to their village President. Subsequent thereto, P.W. 2 was taken to the Police Station and Ex. P1 was given. This witness no doubt was cross-examined at length. But the learned Judge had discussed the evidence of P.W. 1 at length at paragraph No. 11 and recorded the reasons as to why the evidence of P.W. 1 can be relied upon.
12. The evidence of P.W. 3 is the connecting link. P.W. 3 deposed that at about 1 1/2 years back, after returning from coolie work, she was sleeping in her varandah, at about 12-00 noon or 1-00 P.M. this witness observed the accused going away along with P.W. 2 and during the cross-examination P.W. 3 could not explain as to whether the accused was caught hold of the hand of P.W. 2 or not. However, P.W. 3 specifically deposed that they were proceeding side by side. The defence also cross-examined P.W. 3, suggesting that this witness was giving false evidence. But, however, the learned Judge after recording reasons, had believed the evidence of P.W. 3 which had supported the version of the prosecution.
13. Apart from this evidence, the other witnesses had also explained the circumstances and how they heard the weeping cries from the house of P.W. 1 and how they head seen P.W. 2 and what had transpired actually. No doubt, all these are post-incident events. But the post-Incident events had been explained in seriatim. This is an unfortunate case, where a helpless dumb child had been involved in such an act. The medical evidence also clearly supports the version of the prosecution. It is no doubt true that except signs and gestures P.W. 2 was unable to explain further and the Court after taking necessary assistance was able to understand the evidence of this dumb witness, well supported by the evidence of P.Ws. 1 and 3 and the other witnesses explaining the circumstances and also further corroborated by medical evidence. The circumstances recorded in detail by the learned Judge commencing from paragraphs 11 to 19 would only point towards the guilt of the accused and definitely, they negatived the innocence of the accused. Hence, this Court has no hesitation in arriving at a conclusion that though P.W. 2 is only a dumb witness, in view of the evidence available on record, the prosecution was able to establish the guilt of the accused beyond all reasonable doubt.
14. In the light of the evidence of P.Ws. 1 to 15, Exs. P1 to P 9, Exs. D1 to D 4 and also M. Os. 1 to 6, this Court also had given anxious consideration to the portions marked in 161, Cr.P.C. statements of P.Ws. 3 to 6 and these witnesses in fact speak of the circumstances and these inconsistencies are not of such a nature to touch the trustworthiness of these witnesses. Hence, this Court does not see any reason to interfere with the well considered findings recorded by the learned Judge and accordingly, the said findings are hereby confirmed.
15. It is really unfortunate that the accused is having a daughter of marriageable age and that he also hails from a family eking livelihood on cooly work and the whole family is dependent on him. It is equally unfortunate that this appellant-accused had involved himself in a heinous crime of this nature on an innocent unfortunate dumb girl. It is also brought to the notice of this Court that inasmuch as the appellant-accused was not released on ball, he has been in custody for about five years, taking the overall facts and circumstances into consideration, and also the fact that the whole family is dependant on the appellant-accused, who is also a cooly by profession, the conviction under Section 376(2)(i), IPC, no doubt is hereby confirmed.
16. In the result, the conviction imposed by the Assistant Sessions Judge, Kavali on 8-7-1999, against the accused for the offence under Section 376(2)(f), IPC in Sessions Case No. 353 of 1996 is confirmed. But so far as the sentence of rigorous imprisonment for a period of ten years is concerned, it is reduced to five years, and the payment of fine of Rs. 150/-, in default, to undergo simple imprisonment for one year is hereby confirmed."
53. In the decision of Hon'ble Supreme Court State of Punjab V. Ramdev Singh, AIR 2004 Supreme Court 1290 and at special pages 1291 and 1292, in paragraph 1, it is observed as follows:-
"1. Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience, a rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty (AIR 1996 SC 922), the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim's most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the 'Constitution') The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos."
Further, in the aforesaid decision at page 1294 in paragraph 13, it is observed as follows;
"13. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do."
54. In the decision The Public Prosecutor, High Court of A.P.Hyderabad V. Lingisetty Sreenu, 1997 CRI.L.J.4003 and at special pages 4006 and 4007, in paragraphs 12 to 15, it is observed as follows;
"12. P.W. 4 is a dumb girl but as admitted by P.Ws. 2 and 5 she is not deaf. When she was put in the witness box, after examining her for some time, the learned District Judge upheld the contention of the counsel for the accused, that in case of a witness of this type, who is dumb, such witness can only be examined with the help of an expert, or some person who is very much familiar with the witness, and accordingly he appointed one Sri K. Basavannappa, Principal, Government Residential School, for deaf at Bapatla, as an interpreter to this witness. Oath was administered to him, the Court noted the deposition of P.W.4 with the help of this interpreter. To the question whether the accused was known to her this witness knodded her head "vertically" and the interpreter stated that her answer was "yes". As to the question, what happened to her in the past the witness stated that the accused slightly lifted her petty coat (lenga). To the question what else was done to her the witness pointing her private parts (vagina), with her right hand, stated that something was done on her vagina, and to a further question whether the same thing was done in a sitting position or in a lying position, she stated with signs that it was in a lying position. To a further question what the accused did exactly, she stated that her petty coat was lifted and also her jacket and at this point of time she started weeping. But, she was consoled by the interpreter. To the question whether she agreed or objected to such an act she replied by knodding her head horizontally indicating that she did not agree for the act done by the accused.
She admitted that the police recorded her statement. She has been cross-examined with the help of the interpreter. She admitted the suggestion that there is quarrel between his parents and the parents of the accused. She also admitted the suggestion that she was deposing since she has been asked to do so by her mother and grand mother. A last suggestion also was put to her that the quarrel between her parents and the parents of the accused was since a long time, she stated yes. Thus, from her evidence, it is clear that she clearly identified the accused. As admitted by P.Ws. 1 and 2, the brother and mother of the victim girl, the house of the accused is separated by two houses. From this it follows that the accused and the victim girl knew each other. Admittedly, it was day time at about 11 a.m. Even, if it is assumed for the sake of the argument that her brother P.W. 1 could not recognise the accused for whatever reason, but she had recognised the accused and absolutely there is no reason why, her evidence should be disbelieved. She has withstood the cross-examination and nothing could be elicited which could destroy the prosecution case. In fact relying on her evidence only the learned Sessions Judge, convicted the accused for the offences under S. 354 of I.P.C. Having regard to the entire evidence on record, I cannot accede to the contentions of the learned counsel for the accused that the prosecution has failed to prove its case.
13. The learned counsel for the accused nextly submitted that the impugned judgment and order based on the evidence of P.W. 4 only cannot be sustained. The victim girl being a dumb girl a further corroboration is necessary to sustain a conviction. On the other hand the learned Public Prosecutor submitted that such an evidence of P.W. 4 is admissible in view of S. 119 of the Evidence Act and absolutely there is no illegality or irregularity in the impugned order.
14. In order to appreciate the rival contentions on both sides, I am herewith extracting S. 119 of the Evidence Act which reads as under :
"A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court. Evidence so given shall be deemed to be oral evidence."
From this section of the Evidence Act, I find that a deaf and dumb person can be a competent witness. According to this section a witness who is unable to speak may give his or her evidence in any other manner he or she can make such evidence intelligible. The other manners in which a person can make his ideas intelligible would be either by a written word or by signs. The only restriction is that such expressions of the ideas by means of signs or writing should be made in open court. In the instant case P.W. 4 deposed before the Court with the help of signs. It is pointed out by the High Court of Kerala in "Kadungoth Alavi v. State of Kerala", 1982 Cri LJ 94, that the Court in order to understand and appreciate the evidence of such witnesses expressing their ideas with the help of signs it should necessarily seek the assistance of an expert so as to safely rely on such an evidence. I fully agree with the ratio of the said decision. The object of such principles is that by misunderstanding such signs an innocent person shall not be convicted and thus it is a rule of prudence that such an expert evidence would be necessary in the circumstances of this type. Moreover S. 282 of Cr.P.C. also enables the criminal Court to take the services of an interpreter for interpreting any evidence or statement, and such interpreter when required by the criminal court is bound to state the true interpretation of such evidence or statement. Having appreciated this position of law only the Court below appointed the Principal, Government Residential School for Deaf as an interpreter to this witness by administering the oath to him. It cannot be said that such a person who has been educating the deaf and dumb students is not an expert. From the evidence of P.W.4 elicited with the help of the interpreter it is proved that not only the commission of the offences but also the identity of the offender who is the accused before the Court. Therefore, it is not possible to accede to the contention of the learned counsel for the accused that this evidence of P.W.4 cannot be relied at all.
15. However, the learned counsel for the accused further submitted that in order to rely on the testimony of P.W.4 a further corroboration is necessary. But, the Hon'ble Supreme Court in more than one judgment has declared the law that in case of sexual offences it would not be wise to insist upon other evidence to corroborate the evidence of the victim girl. For instance in "Krishan Lal v. State of Haryana" AIR 1980 SC 1252:(1980 Cri LJ 926), the Hon'ble Supreme Court pointed out that "femenine tendencies to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabalise the hypothesis of false implication." In "Bharwada Bhoginbhai Hirjibhai v. State of Gujarat" (1993) 2 Crimes 232 : (1983 Cri LJ 1096), the Hon'ble Supreme Court further pointed out that the refusal to act on the testimony of a victim of the sexual assault, only because of absence of corroboration, would only be adding insult to injury. The Hon'ble Supreme Court pointed out that corroboration is not the sine qua non for a conviction in rape cases. In view of this law declared by the Hon'ble Supreme Court it is clear that the evidence of P.W. 4 could be safely relied upon without insisting on any further corroboration and there is no error in the judgment of the Court below in relying on such evidence of P.W.4, more so, in view of the fact that, a part of the prosecution case stands proved by the evidence of P.Ws.1, 2 and 3 that such an offence was committed on her. Having regard to the tendency that sexual offences are normally committed in isolation there cannot be a better witness than the victim girl herself. P.W.4 categorically stated that it was the accused who committed the offence in question. Therefore, the contention of the learned counsel for the accused urged in this behalf merits only for rejection."
55. That apart, it is to be noted that the most natural mode of communication by a deaf person is by signs. This is in substance the English Law also. The evidence so given shall be deemed as oral evidence under the English Law signs made by a dumb witness may be translated by an interpreter (Taylor - Article 1376). This is the American view also (Cowby V. People 83 NY
478)
56. At this stage, this Court recollects and recalls the decisions in Mailsami V. State (1994) Cri.LJ 2238 at special page 2240, in paragraph Nos. 5 & 6, whereby and whereunder, it is observed and laid down as follows:-
"5.The submission that no offence under Section 417 I.P.C. is made out, cannot be accepted for the reason that when she refused to have sexual intercourse with him, he made a promise that he will definitely marry her and induced her to subject herself for sexual intercourse by him; but ultimately when she insisted for marriage, after she became pregnant, he evaded and ultimately he put an impossible condition and did not marry her. So, the inducement is there and because of that, she had done something, which she would not do, if she had not believed that inducement and that inducement is shown to be a dishonest one. All the ingredients necessary to make out the offence under Section 417 are available here. So the first submission cannot be sustained.
6.Regarding the second submission that offence under Section 417 I.P.C. is barred by time, the date from which the period is to be computed, assumes importance Mr.Hajiee P.K.Jamal Mohamed, would submit that the date on which she agreed to have sexual intercourse with the accused would be the material date. I do not accept this submission for the reason that the date of knowledge of the aggrieved person is the material date and on the date on which she agreed to have sexual intercourse, she did no have the knowledge that he was going to ultimately cheat her and only the date on which she came to know that she was cheated is the material date, for fixing the starting point of limitation, so far as offence under Section 417 is concerned. Any victim of cheating would not know, on the date of cheating that he or she was being cheated. The victim would come to know only on a later point of time, that he or she was cheated. The victim would come to know only on a later point of time, that he or she was cheated. That is the material date. In the instant case, she believed the promise made by the accused and agreed for sexual intercourse. Later she became pregnant by six months. He asked her to dissolve the pregnancy and then he would marry her. The lady doctor said that the pregnancy could not be dissolved because of the advance stage of pregnancy. Then he insisted that he would marry only after pregnancy was dissolved. Panchayat was held. At that time he agreed. But it was not given effect to. Then on 11.04.90 she gave report to the police and the Sub Inspector, Keeranur sent for him and his father and others and at that they agreed for the marriage, but later did not do it. Only then, she has come to know that she has been cheated and had given this complainant on 15.6.90. Between 11.4.90 and 15.6.90 only about two months has elapsed. So it is not barred by time. Hence the second submission also fails."
57. Also this Court, aptly points out the decision in Rao Harnarain Singh Sheoji Singh and Others V. The State AIR 1958 Punjab 123, wherein it is held as follows:-
"All consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be consent."
58. Furthermore, this Court refers to the decision in Jaladu N Re (1913) 36 Madras 453, wherein it is held as follows:-
" the expression under a misconception of fact' is broad enough to include all cases, where the consent is obtained by misrepresentation, the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given."
59. Added further, in the decision Flattery (1877) 2 QBD at page 410, the fact is that where the Accused professed to give medical and surgical advice for money. The Prosecutrix, a girl of 19, consulted him with respect to illness from which she was suffering. He advised that a surgical operation should be performed and under pretence of performing it, had carnal connection with the Prosecutrix. She submitted to what was done under the belief that he was merely treating her medically and performing a surgical operation. It was held that the Accused was guilty of rape. That apart, mere submission by one, who does not know the nature of act done cannot be consent as per QUAIN ,J. in Lock (1872) LR 2 CCR 10, 14.
60. Moreover, in the decision Ravichandran V. Mariyammal, 1992 CRI.L.J. 1675, at special page 1676, wherein, in paragraph Nos.7 and 8, it is laid down as follows:
"7. Deception of any person is common to the second and the third requirements of the section as stated above. Second and third requirements are alternative to each other and this is made significantly clear, by use of disjunctive conjunction 'or'. Therefore it goes without saying that the definition of the offence of cheating, embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs. For these cases, a general provision is made in S.417 of Code. For the cases in which property is transferred, a more specific provisions is made by S.420. But the offence of cheating of any person by delivery of property is punishable under either of the section. But where the case appears to be of a serious nature, step is normally taken under S.420 I.P.C. In this view of the matter, the contention of learned counsel for the petitioner that since the offence of cheating figuring in Chapter XVII, relates to property offences, the case on hand, cannot at all be said to be coming within the purview of S.417 I.P.C. cannot at all be countenanced.
8.The averments in the complaint, do prima facie, point out false representation said to have been made by the petitioner, in the sense of himself making a promise to marry her, and believing such a promise, the respondent succumbed to his carnal desire, in request. But for the representation so made and the deception practiced on her, she would not have been a party for sharing her bed with the petitioner, on the relevant date, which is said to have resulted in her becoming pregnant. The allegations as stated in the complainant do prima facie, establish an offence under S.417 I.P.C. requiring him to undergo the ordeal of trial. Further, the Court below has already examined 8 witnesses after taking the complaint on file with subjective satisfaction that a prima facie case had been established against the petitioner."
61. As far as award of compensation in terms of 357(3) of Cr.P.C is concerned, it is to be kept in mind that the compensation ought to be a part of sentence and should be specifically mentioned whether as expenses or for injury caused to a person. It is necessary to establish that (1) a person had suffered loss or injury (2) it was caused by an offence in question (3) compensation could be recovered by the civil Court as per decision Mangalchand V.Mohan, A.I.R 1917 Nagpur at page 122.
62. It is to be pointed out that the Court is empowered to recover compensation awarded under Section 357(3) of Criminal Procedure Code in either or both of methods under Sections 421 and 431 of Criminal Procedure Code.
63. However, in the decision Vijayan V. Sadanandan K & another, III (2009) Banking Cases page 282 (SC) and at special pages 286 and 287 in paragraph 13, it is observed as follows:-
"13. Mr. Basant submitted that Section 431 Cr.P.C. provides that any money (other than a fine) payable by virtue of any order made under the Code and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine. Mr. Basant submitted that in that view of the matter, compensation awarded under Section 357(3) Cr.P.C. could also be recovered under Section 431 Cr.P.C. read with Section 421 Cr.P.C., which provides the methods for recovery of fine imposed by the Court from the accused. In this connection, reference was also made to Sections 64 to 70 of the Indian Penal Code (IPC), which empower the Court to impose a default sentence in case of non-payment of fine. It was submitted that default sentence is not a substantive sentence under the IPC and it comes to an end the moment fine is paid by the accused. It was submitted that Section 53 IPC deals with various punishments that can be imposed on the accused, but default sentence is not one of the sentences mentioned in Section 53. Mr. Basant added that Section 30 Cr.P.C. also recognizes the power of the Court to impose a default sentence on non- payment of fine. Referring to the decision of this Court in Shantilal v State of Madhya Pradesh, (2007) 11 SCC 243, Mr. Basant submitted that it had been held in the said case that a default sentence is not a sentence as such, but a penalty which a person incurs on non-payment of fine. Special reference was made to paragraph 31 of the judgment which reads as follows :-
"31. The next submission of the learned counsel for the appellant, however, has substance. The term of imprisonment in default of payment of fine is not a sentence. It is a penalty which a person incurs on account of non- payment of fine. The sentence is something which an offender must undergo unless it is set aside or remitted in part or in whole either in appeal or in revision or in other appropriate judicial proceedings or `otherwise'. A terms of imprisonment ordered in default of payment of fine stands on a different footing."
The same view was expressed earlier by this Court in Kuldip Kaur v Surinder Singh, (1989) 1 SCC 405, where it was held that a default sentence is a mode of enforcing recovery of amount imposed by way of compensation."
Added further, in the aforesaid decision at page 288 in paragraph 19, it is observed as follows:-
"19. In our view, the provision for grant of compensation under Section 357(3) Cr.P.C. and the recovery thereof makes it necessary for the imposition of a default sentence as was held by this Court firstly in Hari Singh's case (supra) and thereafter in Sugnathi Suresh Kumar's case (supra). In our view, the law has been correctly stated in the said two decisions. As we have mentioned hereinbefore, when the decision of this Court in Hari Singh's case (supra) was holding the field, the learned Single Judge of the High Court had wrongly relied on the decision of the Kerala High Court in Rajendran's case (supra). The power to impose a default sentence in case of non-payment of compensation under Section 357(3) Cr.P.C. has been duly recognized by this Court and the arguments advanced to the contrary on behalf of the Petitioner must, therefore, be rejected."
That apart, in the aforesaid decision at page 289 in paragraph 22 and 23, it is observed and laid down as follows:-
"22. The provisions of Sections 357(3) and 431 Cr.P.C., when read with Section 64 IPC, empower the Court, while making an order for payment of compensation, to also include a default sentence in case of non-payment of the same. The observations made by this Court in Hari Singh's case (supra) are as important today as they were when they were made and if, as submitted by Dr. Pillay, recourse can only be had to Section 421 Cr.P.C. for enforcing the same, the very object of Sub-Section (3) of Section 357 would be frustrated and the relief contemplated therein would be rendered somewhat illusory.
23. Having regard to the views expressed hereinabove, we hold that while awarding compensation under Section 357(3) Cr.P.C., the Court is within its jurisdiction to add a default sentence of imprisonment as was held in Hari Singh's case (supra)."
64. However, in Appeal/Revision the Court can direct the suspension of sentence subject to a condition of default as per decision Mohd Hafiz Khan V. Anand Finance 2004 (2) Crimes page 511 and at page 514 (Bom).
65. As a matter of fact, the direction to pay compensation under Section 357 (3) of Cr.PC, is on the assumption of civil liability on the part of the person who committed the offence to redress the victim or his dependence by payment of compensation as per decision of the Hon'ble Supreme Court Arun Garg V.State of Punjab and another, (2004) 8 Supreme Court Cases 251.
66 Added further, the compensation should be part of the sentence and should be specifically mentioned whether as an Expenses or for Injury as per decision 14 Cr.L.J page 522.
67. The significant difference between Sub Section (1) and 3 of Section 357 Cr.P.C is that in the former, the award of fine is the basic requirement, while in the latter even in the absence thereof empowers the court below to direct payment of compensation. As such the said power is to be exercised by an Appellate Court or by the High Court or Court of Sessions when exercising revisional powers.
68. In terms of Section 357(3) of Cr.P.C. The Learned Judicial Magistrate independently of the sentences awarded by him has powers to award compensation, in the considered opinion of this Court.
69. It is true that a court below can award compensation to the complainant for which no limit is prescribed under Section 357 of Cr.P.C., as per decision Pankajbhai Nagjibhai Patel V. State of Gujarat and another, AIR 2001 Supreme Court 567. However, in fixing the amount, the Court has to consider what would be the reasonable compensation payable to the complainant as per decision K.Bhaskaran V. Sankaran Vaidhyan Balan and another, AIR 1999 Supreme Court 3762.
70. The compensation should be commensurate with the capacity of the accused to pay as also other facts and circumstances of that case like the gravity of the offence, the needs of the victim's family etc., as per decision of the Hon'ble Supreme Court Rachhpal Singh V. State of Punjab, AIR 2002 Supreme Court 2710 and at special page 2715.
71. Also, in the decision of the Hon'ble Supreme Court Mangilal V.State of Madhya Pradesh, AIR 2004 Supreme Court 1280, wherein it is held as follows:-
"The power of the Court to award compensation to victims under Section 357 is not ancillary to other sentences but is in addition thereto."
72. Be that as it may, in the instant case on hand, the evidence of P.W.1 (victim) is very categorical to the effect that the Revision Petitioner/A1 (Kandasamy) informed her, he would marry her and further, pulled her hand and committed raped on her/indulged sexual intercourse on the promise of marriage. Later on, he refused to marry her. Her parents informed that the Revision Petitioner/A1 should marry her and that, the Revision Petitioner/A1 and his parents (father and Mother A2 and A3) could talk together and perform the marriage for which A1's parents viz., A2 and A3 had not accepted the same. Therefore, even though the incident had taken place four months prior to the filing of the complaint by P.W.1, inasmuch as finally on 15.11.2008, when the village important persons called the Revision Petitioner/A1 and his parents, they had refused to come and later on, they threatened P.W.1's parents with an intimidation of murder and thereupon only, P.W.1 filed Ex.P1 complaint and under these circumstances, the delay could not be put against the prosecution in the considered opinion of this Court. Further, the delay in regard to the filing of F.I.R viz., four months after the date of occurrence by P.W.1, is not fatal, and as such it does not affect the case of prosecution in the considered opinion of this Court.
73. Coming to the aspect of the occurrence/incident, it is to be remembered that P.W.1 (victim) being the eye witness who was ravished by the Revision Petitioner/A1 and in fact, it is her clear cut evidence of P.W.1 that when no one was present during 10.00 a.m. in the morning and at about 10.00 p.m. in the night, the Revision petitioner/A1 came to her house and indulged in sexual intercourse/committed rape on her. As such, the evidence of P.W.1 (victim) being a direct eye witness to the occurrence is a reliable and trustworthy one and therefore, a mere delay in filing of FIR as already stated supra is of no ground to throw the entire prosecution case as opined by this Court.
74. Suffice it for this Court to point out based on the sole testimony of P.W.1 which is a cogent, coherent and convincing one, this Court holds that the charge levelled under Section 417 of Indian Penal Code against the Revision Petitioner/A1 stands proved beyond all shadow of doubt. As such, the trial Court's as well as the First Appellate Court's findings of guilt arrived at in respect of the Revision Petitioner/A1 under Section 417 of Indian Penal Code is affirmed by this Court for the reasons assigned in this Revision Petition. Resultantly, this Court upholds the conviction and sentence of one year simple imprisonment imposed by the Learned Judicial Magistrate, Manapparai and the First Appellate Court, Trichirappalli (but inadvertently/wrongly/mistakenly the First Appellate Court has wrongly mentioned in its judgment in C.A.No.2 of 2012 dated 12.12.2012 while affirming the sentence of the trial Court as one year Rigorous imprisonment for the offence under Section 417 of IPC.)
75. Dealing with the quantum of compensation of Rs.1,00,000/- awarded by the trial Court to P.W.1(victim) and the same being payable by the Revision Petitioner/A1 within a period of six months and maximum to be paid in five instalments and later, compensation amount of Rs.1,00,000/- being confirmed by the First Appellate Court in C.A.No.2 of 2012, this Court, at this stage pertinent points out that both the trial Court and the First Appellate Court while ordering compensation of Rs.1,00,000/- and the same being to be paid by the Revision Petitioner/A1 had not gone into his financial capacity or ability to pay the aforesaid amount.
76. It is true that the P.W.1 (victim - Dumb person) had suffered a loss or injury i.e. she being ravished by the Revision Petitioner/A1 in regard to the commission of an offence under Section 417 of IPC. Equally, there is no two opinion of the fact that the direction to pay compensation by the trial Court and the First Appellate Court is based on the assumption of civil liability on the part of the person viz., the Revision Petitioner/A1 who has committed the offence mainly to redress the grievance of P.W.1/victim, as opined by this Court. Although no limit is prescribed under Section 357 of Cr.P.C for awarding compensation yet in the considered opinion of this Court, it cannot be an arbitrary and excessive one. Per contra, the award of compensation by a court of law for loss or injury suffered by the victim ought to be a fair and reasonable one.
77. It is true that a sensitised judge, in a complex, varied, multifaceted modern civilized society is a better statutory armour in cases of crime against women. To put it precisely, a Court of Law is to be sensitised while dealing with the cases of sexual assault on women. Therefore, bearing in mind the well known principle that compensation should be commensurate in paying capacity of an accused to pay and also other facts and circumstances of the case like gravity of offence needs of the victim family etc., and also to make the Revision Petitioner/A1 to realise the harm that he had done to P.W.1/Victim and to wipe out the tears from her eyes, this Court, to prevent an aberration of justice and to promote substantial cause of justice, directs the Revision Petitioner/A1 to pay a Fair, Just and Equitable compensation amount of Rs.60,000/-(Rupees Sixty Thousand only) to the P.W.1(victim) within five instalments within a period of three months from the date of receipt of a copy of this order. (if not paid earlier). It is open to the P.W.1/Victim to recover the compensation amount of Rs.60,000/- (Rupees Sixty Thousand Only) as arrears of land revenue as per Sections 421 and 431 of Cr.P.C. However, if the Petitioner is desirous of recovering the compensation amount of Rs.60,000/- (Rupees Sixty Thousand Only), awarded by this Court from the Revision Petitioner/A1, then, this Court grants permission to her to take recourse to the Civil Remedy also in the manner known to law and in accordance with law.
With the aforesaid directions, the Criminal Revision Petition stands disposed of. Consequently, connected miscellaneous petition is closed.
sms To
1. State by Sub Inspector of Police All Women Police Station, Manapparai, Trichy District.
2. The Third Additional District Judge, Tiruchirapalli.
3. The Judicial Magistrate, Manapparai.