Madras High Court
P.Danapal vs State Rep. By on 23 March, 2015
Author: R.Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.03.2015
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal No.683 of 2007
P.Danapal .. Appellant/Accused
vs.
State Rep. By
Inspector of Police
Veeranam Police Station,
Steel Plant Limit, Salem District. .. Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 (2) of Cr.P.C., against the judgment of conviction and sentence dated 02.07.2007, made in S.C.No.170 of 2006 on the file of the learned Sessions Judge, Mahila Court, Salem.
For Appellant : Mr.B.Kumarasamy
For Respondent : Mr.V.Arul
Government Advocate (crl.side)
J U D G M E N T
This Criminal Appeal arises out of the judgment of conviction and sentence dated 02.07.2007, made in S.C.No.170 of 2006 on the file of the learned Sessions Judge, Mahila Court, Salem, whereby the accused/the appellant herein was convicted and sentenced as follows:
offence under Section Sentence 366A IPC To undergo three years rigorous imprisonment and to pay a fine of Rs.500/- in default in payment to undergo three months rigorous imprisonment.
376 IPC To undergo seven years rigorous imprisonment and to pay a fine of Rs.500/- in default in payment to undergo three months rigorous imprisonment.
The sentence are ordered to be run concurrently.
2.The case of the prosecution based on the prosecution witnesses is as follows:
(i)On the side of the prosecution, P.W.1 to P.W.10 were examined, Exs.P1 to P8 were marked.
(ii)P.W.1/Shanthi is the mother and P.W.2/Arasu is the father of the victim girl/P.W.3 and they were residing in Sundarajan Colony, Valasaiyur. P.W.1 had two daughters and one son. P.W.3/the victim girl is the second daughter and she is working in a Private Mill at Chettiyarkadu, Sukkampatti. On 01.04.2005, since P.W.3/the victim girl has not returned home for long time, P.W.1 searched P.W.3 in the house of neighbours but she cannot find the victim girl. On investigation, P.W.1 came to know that one Dhanapal, S/o.Periyasamy, the appellant/accused has abducted the victim girl/P.W.3. Thereafter, she lodged a complaint/Ex.P.1 before the Veeranam Police Station on 12.04.2005.
(iii)P.W.3/the victim girl, in her evidence, has stated that the appellant/accused was known to her. On 01.04.2005, the appellant/accused asked the victim girl/P.W.3 to come to Appollo School, which is situated near the place where they were residing at about 7.30 p.m. and threatened her that if she has not come, he will kill her. Then, both of them went to Kuniamuthur Church and taken a house for rent. On 03.04.2005 at about 11.00 a.m., the appellant/accused married the victim girl/P.W.3 at Dharmalingam Mali Sivan Temple, Palakodu, by tying a covering Thali in the presence of Rajalingam and Santhi. She further stated that he forces her to have sexual intercourse stating that she is his wife and continue to have sexual intercourse while they are living at Kuniamuthur. On the complaint given by P.W.1, namely, the monther of the victim girl/P.W.3, Investigating Agency came there and took her.
(iv)P.W.7/A.Prakash, Sub-Inspector of Police, Veeranam Police Station received the complaint/Ex.P.1 from P.W.1 and registered a case in Crime No.84 of 2005 under Section 366 IPC and prepared the printed FIR/Ex.P.5. Thereafter, he sent the FIR/Ex.P.5 to the Inspector of Police, Irumbalai Police Station for investigation.
(v)P.W.9/Palanisamy, Inspector of Police, Irumbalai Police Station took up the case for investigation and went to the place of occurrence and prepared the observation mahazar/Ex.P.4 and drew rough sketch/Ex.P.8 in the presence of P.W.6/Sekar and one Kamaraj. Thereafter he examined the witnesses and recorded their statements. On 22.04.2005 at about 2.00 p.m, P.W.9 arrested the appellant/accused in Veeranam Bus stop and produced the accused for remand. Thereafter, P.W.9 sent the victim girl and the appellant/accused for medical examination.
(vi)P.W.10/Vijayalakshmi, Inspector of Police, Kondalampatti Police Station examined the victim girl and recorded her statement on 22.04.2005.
(vii)P.W.4/Dr.S.S.Meera, on receipt of the requisition from the learned Judicial Magistrate No.IV, Salem, examined the victim girl/P.W.3 on 28.04.2005 and found that there is no external injuries and the hymen got ruptured and easily admits one finger. She further submitted that no evidence of spermatazoa seen, either motile or non-motile. She issued the medical report/Ex.P.2. and a chemical examination report/Ex.P.3 and opined that the victim girl/P.W.3 is used to sexual intercourse.
(viii)On 28.04.2005, P.W.8/Dr.Vallinayagam, on receipt of the requisition from the learned Judicial Magistrate No.IV, Salem examined the victim girl/P.W.3 and Ex.P.7 certificate was issued stating that the age of the victim girl might be above 16 years and below 18 years. On 04.05.2005, P.W.8 examined the appellant/accused and issued Ex.P.6 Medical Report stating the accused is not an impotent.
(ix)After completing the investigation, P.W.9/Palanisamy, Inspector of Police, Irumbalai Police Station filed the charge sheet against the accused/appellant herein under Section 366IPC.
3.The Trial Court placed the incriminating evidence before the accused under Section 313 of Cr.P.C. and the accused denied the same in toto. On the side of the defence, no oral evidence was examined and no documentary evidence was marked. After considering the oral and documentary evidence, the trial Court convicted the accused/appellant herein for the offence under Sections 366A and 376 IPC and sentenced him as stated above. Aggrieved over the same, the accused/appellant has preferred this appeal.
4.Challenging the conviction and sentence passed by the Trial Court, the learned counsel appearing for the appellant submits that the ingredients of Section 366A has not be made out. He would also submit that at the time of occurrence, the victim girl is aged about 16 years and she is a consented party. So, the ingredients of Section 375 IPC has also not been made out. He further submitted that the alleged occurrence said to have taken place on 01.04.2005, but on 12.05.2005 the marriage has been performed in the temple which was proved by way of examining of D.W.1 and Ex.D.1, wherein it was stated that the age of the victim girl is 19 years. That factum was not considered by the Trial Court. He would further submit that after the marriage, the victim girl gave birth to a male child and thereafter, she left the matrimonial home and then only, complaint has been given. He would also submit that now the male child is with the father and he is taking care of the child. Hence, he prayed for setting the conviction and sentence passed by the Trial Court.
5.Resisting the same, the learned Government Advocate (Crl. Side) would submit that the age of the victim girl/P.W.3 is below 16 years and she is not a competent person to give a consent for sexual intercourse. That factum was rightly considered by the Trial Court. He would further submit that the ingredients of Section 366A IPC has been made out. He further submitted that the evidence of D.W.1 and Ex.D.1 is not an admissible evidence and the document came into existence only after the case has been registered. So, no relevance can be made. Hence, he prayed for dismissal of the appeal.
6.Considered the rival submissions made by both sides and perused the typed set of papers.
7.P.W.3 is the victim girl. P.W.1 is the mother and P.W.2 is the father of the victim girl. P.W.4 is the Doctor. The case of the prosecution is that on 01.04.2005 the appellant herein has abducted the victim girl, who is a minor and committed rape, thereby committed the offences punishable under Sections 366A and 376 IPC.
8.Now the first and foremost point to be decided is what is the age of the victim girl/P.W.3? Admittedly, no school certificate and birth certificate has been marked. But P.W.8/Dr.Vallinayagam, in his evidence has deposed that he has assessed the age of the victim girl on the basis of the denture and came to the conclusion that the age of the victim girl would be above 16 years and below 18 years. So, the age of the victim girl must be above 16 years and below 18 years. At this juncture, it is appropriate to incorporate the ingredients of Section 375 IPC, which reads as follows:
375.Rape A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions: -
First: - Against her will.
Secondly: -without her consent.
Thirdly: - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly: -With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly: - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly: - With or without her consent, when she is under sixteen years of age.
So, the victim girl/P.W.3 is competent to give consent for sexual intercourse since P.W.3 is above 16 years.
9.In criminal jurisprudence, it is the duty of the prosecution to prove the guilt of the accused beyond all reasonable doubt. Admittedly case has been registered on 12.04.2005, but on 01.06.2005, the marriage has been performed between the appellant and P.W.3 in the presence of her parents, namely, P.W.1 and P.W.2. Marriage Certificate has also been marked. In the cross examination, P.W.1 has fairly conceded that on 28.03.2006, the victim girl gave birth to a male child. In the marriage certificate also, the age of the victim girl was mentioned as 19 years. So, at the time of the alleged occurrence on 01.04.2005, the age of the victim girl is above 16 years. As per the dictum of the Hon'ble Apex Court, if the birth certificate is not filed before the Court, the age certificate issued by the Doctor on the basis of the ossification test is not accurate and it may vary two years on either side. Considering the same, I am of the view that the age of the victim girl/P.W.3 is 18 years. So, the ingredients of Section 376 IPC has not been made out.
10.It is appropriate to incorporate Section 366A, which is as follows:
366A.Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine. Even though the victim girl/P.W.3 is a minor, here, the appellant/accused alone married the victim girl.
11.At this juncture, it is appropriate to consider the decision reported in (2008) 1 MLJ (crl) 1414 SC (Iqbal v. State of Kerala), wherein in para-9 of the judgment, it was held as follows:
"9.In order to attract Section 366A IPC, essential ingredients are (1) that the accused induced a girl; (2) that the person induced was a girl under the age of 18 years; (3) that the accused has induced her with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) such intercourse must be with a person other than the accused; (5) that the inducement caused the girl to go from any place or to do any act."
In such circumstances, the ingredients of Section 366A IPC has not been made out.
12.As stated supra, the prosecution has not proved that the accused is guilty under Sections 366A and 376 IPC beyond all reasonable doubt and the benefit of doubt is given in favour of the appellant and he was acquitted from the charges levelled against him. Hence, the judgment of conviction and sentence passed by the Trial Court under Sections 366A and 376 IPC is hereby set aside.
13.During the course of the argument, the learned counsel appearing for the appellant submitted that the appellant's father, namely, Periyasamy, has settled a property in favour of the male child, viz., D.Aravind Kumar, born through the appellant and P.W.3 appointing the learned Principal District Judge, Salem as guardian and produced a copy of the settlement deed.
14.The appellant is directed to produce the original settlement deed along with a proper application before the learned Principal District Judge, Salem. The learned Principal District Judge, Salem is also directed to receive the same and act as guardian to the minor till attain majority and hand over the same to the said D.Aravind Kumar after he attains majority.
15.In fine,
(i)The Criminal Appeal is Allowed.
(ii)Judgment of conviction and sentence passed by the learned Sessions Judge, Mahila Court, Salem in S.C.No.170 of 2006 dated 02.07.2007 is hereby set aside.
(iii)The appellant is acquitted from the charges levelled against him.
(iv)The fine amount paid by the appellant is ordered to be refunded to him.
(v)Bail bond, if any executed by the appellant shall stand cancelled.
23.03.2015 Index:Yes/No Internet:Yes/No cse Note: The Registry is directed to send a copy of this order to the learned Principal District Judge, Salem.
R.MALA,J.
cse To
1.The learned Sessions Judge, Mahila Court, Salem.
2.TheInspector of Police Veeranam Police Station, Steel Plant Limit, Salem District..
3.The Public Prosecutor High Court, Madras.
4.The Record Keeper Criminal Section, High Court, Madras.
Criminal Appeal No.683 of 2007 23.03.2015