Madras High Court
Vathiar vs The State on 16 November, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
CRL A No.1076 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.11.2022
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Criminal Appeal No.1076 of 2022
and
Crl.M.P.No.14561 of 2022
Vathiar ... Appellant
Vs.
The State, represented by
Inspector of Polcie
Uthangarai Police Station
Krishnagiri District ... Respondent
Prayer : Criminal Appeal filed under Sections 374 (2) of Criminal
Procedure Code, praying to set aside the conviction and sentence
imposed in S.C.No.11 of 2018 dated 30.04.2019 passed by the learned
Sessions Judge, Fast Track Mahila Court, Krishnagiri.
For Appellant : Mr.R.Sankarasubbu
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
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CRL A No.1076 of 2022
JUDGMENT
This Criminal Appeal has been filed seeking to set aside the conviction and sentence imposed in S.C.No.11 of 2018 dated 30.04.2019 passed by the learned Sessions Judge, Fast Track Mahila Court, Krishnagiri.
2.The respondent police registered the case against the appellant in Crime No.416 of 2008 initially for the offences under Section 417, 420 and 506(i) IPC and after completing the investigation, laid charge sheet before the District Munsif cum Judicial Magistrate, Uthangarai. The learned Magistrate taken the charge sheet on file in PRC No.10 of 2010 and committed the case to the Sessions Judge since the offences are exclusively triable by the Court of Session and the learned Sessions Judge taken the case on file in S.C.No.11 of 2018 and made over the same to the Fast Track Mahila Court, Krishnagiri, since the offence is against a woman. The learned Mahila Judge, after completing the formalities, framed the charges against the appellant for the offences under Sections 376, 417 and 506(ii) IPC.
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3. After framing the charges, in order to prove the case of the prosecution, during trial before the trial Court, totally 15 witnesses were examined as P.W.1 to P.W.15 and 14 documents were marked as Exs.P.1 to P.14 and no material object was exhibited.
4. After completing the examination of the prosecution witnesses, incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the accused by questioning under Section 313 Cr.P.C. However, the accused denied the same as false and pleaded not guilty. On the side of the defence, no oral or documentary evidence was produced.
5. On conclusion of trial, after hearing the arguments advanced on either side and also considering the materials, the learned Sessions Judge, found the appellant guilty for the offences under Sections 376, 417 and 506(ii) IPC and convicted and sentenced to undergo Rigorous Imprisonment for seven years and to pay fine of Rs.5,000/- in default to 3/20 https://www.mhc.tn.gov.in/judis CRL A No.1076 of 2022 undergo rigorous imprisonment for a further period of one year for the offence under Section 376 IPC; to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- in default to undergo rigorous imprisonment for a further period of one month for the offence under Section 417 IPC; and to undergo rigorous imprisonment for one year and to pay fine of Rs.1000/- in default to undergo rigorous imprisonment for a further period of one month. Challenging the said Judgment of conviction and sentence, the accused has filed the present appeal before this Court.
6. The case of the prosecution is that the appellant on a false promise of marrying the prosecutrix, had sexual relationship with her due to which, she became pregnant and when she asked her to marry her, the appellant refused to marry her and also threatened her to kill her if she reveals the same to anybody.
7. The learned Counsel for the appellant would submit that it is a case of consented sexual relationship and therefore, the offence punishable under Section 376 IPC would not attract. He would further 4/20 https://www.mhc.tn.gov.in/judis CRL A No.1076 of 2022 submit that both the appellant and the prosecutrix were in live in relationship and they were living together for more than one year and therefore, the offence of rape under Section 375 IPC punishable under Section 376 IPC would not attract. Further he would submit that the prosecutrix was not examined as witness and she was not subjected for cross examination and there is no material to show that the appellant had made promise to the prosecutrix to marry her and also against her will, he had relationship with her. Since they both lived together for sometime, the offence under the definition of rape would not attract. The appellant never made any promise to the prosecutrix to marry her and therefore, the offence under Section 417 IPC would not attract. Further, the appellant never threatened either the prosecutrix or her mother as projected by the prosecution and therefore, the offence under Section 506(ii) IPC also would not attract. Even in the complaint, it is stated that prior to 6 months from the date of complaint, the prosecutrix and the appellant were living together. Therefore, once the material shows that the appellant and the prosecutrix were lived together for sometime, then the offence punishable under Section 376 IPC would not attract. The trial 5/20 https://www.mhc.tn.gov.in/judis CRL A No.1076 of 2022 Court failed to appreciate the materials properly and erroneously convicted the appellant. In order strengthen his contention, the learned Counsel placed reliance of the Judgments of the Hon'ble Supreme Court as follows;
1. Maheshwar Tigga Vs. State of Jharkhand reported in (2020) 10 Supreme Court Cases 108: (2021) 1 Supreme Court Cases (Cri) 50: 2020 SCC OnLine SC 779. 2 Dhruvaram Murlidhar Sonar Vs. State of Maharashtra reported in (2020) 3 SCC (Cri) The learned counsel for the appellant would further submit that there was delay in filing the complaint. Even as per the complaint, both the prosecutrix and the appellant were living together and after some time, since the marriage was not materialised, the complaint was given belatedly which itself would clearly show that with the consent of the prosecutrix only, they were in live in relationship and had physical relationship. Therefore, the offence of rape punishable under Section 376 IPC would not attract.
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8. The learned Additional Public Prosecutor appearing for the respondent police would submit that the prosecutrix herself has set the law into motion by filing the complaint which has been marked as Ex.P.5 in which she has clearly stated that the appellant made promise to the prosecutrix that he would marry her, by keeping his hand on her head and believing the same, she had physical relationship with the appellant and the said portion of the complaint is extracted as follows;
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xt;bthU ehSk; ehd; khL nka;f;f nghFk;
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brhd;djhy; ehDk; mtUk; mtUila cl;ilfhl;oy;
,uz;L jlit clYwt[ bra;njhk;/
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CRL A No.1076 of 2022
Subsequently, the prosecutrix became pregnant and when she asked the appellant to marry her, he kept silent and thereafter, he absconded for two months and when he returned back, the prosecutrix and her mother questioned the appellant and the appellant refused to marry the prosecutrix and also threatened them with dire consequences. The prosecution witnesses P.W.1 who is the mother of the prosecutrix, P.W.2 and P.W.6 who are the independent witnesses have substantiated the complaint of the prosecutrix. Further, Ex.P.12/medical report shows the pregnancy of the prosecutrix and Ex.P.2/DNA test report clearly shows that the prosecutrix gave birth to a child and the appellant is the biological father of the child born to the prosecutrix. Therefore, from the evidence of the prosecution witnesses and Ex.P.12/medical report, Ex.P.5/complaint given by the prosecutrix and Ex.P.9/DNA test report, the prosecution proved its case beyond all reasonable doubt and the trial Court rightly appreciated the evidence and convicted the appellant for the charged offences. Therefore, there is no merit in the appeal and the appeal is liable to be dismissed.
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9. Heard the learned counsel for the appellant and the learned Additional Public Prosecutor appearing for the respondent police and also perused the materials available on record.
10. The case of the prosecution is that the appellant on the false promise of marrying the prosecutrix, had physical relationship with her. Thereafter, when she became pregnant, he refused to marry her. Therefore, the prosecutrix informed the same to her mother and they both informed to the Panchayathars. Initially, the appellant agreed to marry the prosecutrix before the Panchayathars and when the marriage arrangements were going on, the appellant escaped from the place and absconded for two months. Thereafter, when he returned back, the prosecutrix and her mother questioned the appellant for which, the appellant replied that he would not marry the prosecutrix and also threatened with dire consequences stating that he would kill the prosecutrix if she reveals the same to anyone. Hence, the prosecutrix lodged the complaint before the respondent police on 04.07.2008. 9/20 https://www.mhc.tn.gov.in/judis CRL A No.1076 of 2022
11. In order to substantiate the charges levelled against the appellant, on the side of the prosecution, totally 15 witnesses were examined and 14 documents were marked and no material object was exhibited.
12. It is seen that after lodging the complaint, after investigation and framing of charges, before the commencement of trial, the prosecutrix died and therefore, the prosecutrix was not examined before the trial Court as witness. Ex.P.5 is the complaint given by the prosecutrix before the respondent police and based on the complaint/Ex.P.5, the respondent police registered the FIR/Ex.P.6 in Crime No.416 of 2008.
13.A combined reading of the Ex.P.6/FIR and the complaint/Ex.P.5 show that 6 months prior to the date of complaint, one day when the prosecutrix was grazing cattle, the appellant approached her stating that he would marry the prosecutrix for which the prosecutrix refused. Thereafter, the appellant promised and kept his hand on her head stating that he would marry her and would take care of her well and also hugged 10/20 https://www.mhc.tn.gov.in/judis CRL A No.1076 of 2022 and kissed her. Thereafter, whenever she goes for grazing cattle, the appellant used to hug and kiss her. One day the appellant told her that he likes her very much and since, he said that he would marry her, the prosecutrix had sexual intercourse with the appellant and subsequently the prosecutrix became pregnant and when she asked the appellant to marry her, he replied in an evasive manner and thereafter, absconded for two months. When he returned to the village, the prosecutrix and her mother questioned the appellant. However, the appellant refused to marry the prosecutrix and threatened her with dire consequences that if she reveals the same to anybody, he would take away her life.
14. P.W.1 is the mother of the prosecutrix and she has spoken that her daughter/the prosecutrix informed her that the appellant under the guise of marrying her, made her pregnant and thereafter, refused to marry her and threatened her not to reveal the same and hence, they informed the same to the Villagers and when the villagers questioned the appellant. he escaped from the village and returned after one month. At that time, when they questioned the appellant, he refused to marry the prosecutrix. 11/20 https://www.mhc.tn.gov.in/judis CRL A No.1076 of 2022
15. P.W.2 is an independent witness who has spoken about the Panchayat conducted with regard to the appellant committing rape on the prosecutrix and made her pregnant. She has further deposed that the appellant escaped without obliging the decisions of the Panchayat.
16. P.W.6 is also one of the independent witnesses. He has clearly deposed that he has seen the appellant taking with the prosecutrix frequently and one day, it was informed that the prosecuterix was 3 months pregnant and hence, the Villagers had a talk with the appellant. Initially the appellant agreed to marry the prosecutrix and when the marriage arrangements were taking place, the appellant escaped from the place and returned only after 2 months. At that time, the prosecutrix and her mother went and questioned the appellant and the appellant refused to marry the prosecutrix. Hence, the complaint was lodged.
17. The contention of the learned counsel for the appellant is that it was a consented sexual relationship and therefore, the offence of rape 12/20 https://www.mhc.tn.gov.in/judis CRL A No.1076 of 2022 under Section 376 would not attract. Though the prosecutrix died before commencement of trial and she was not subjected to cross examination, the complaint given by the prosecutrix cannot be neglected. A reading of the complaint given by the prosecutrix is corroborated with the evidence of P.W.1/mother of the victim wherein, the mother of the prosecutrix clearly narrated about her daughter's pregnancy and the subsequent Panchayat conducted by the Villagers and the appellant refused to marry the prosecutrix. Further, P.W.2 and P.W.6 who are independent witnesses have also corroborated the evidence of P.W.1/mother of the victim. Even P.W.3 who is the father of the prosecutrix has also corroborated the evidence of P.W.1.
18. Now the question for consideration is whether the appellant made any promise to the prosecutorix to made her believe that he would marry her and based on which, he had obtained consent and had physical relationship or with free consent of the prosecutrix, he had physical relationship.
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19. In the complaint/Ex.P.5 given by the prosecutrix, it is clearly stated that the appellant approached the prosecutrix and expressed his willingness to marry her for which, the prosecutrix refused the same. Even thereafter, the appellant approached her and made promise by keeping his hand on her head stating the he would marry her and would take care of very well. Believing his words, the prosecutrix had physical relationship with the appellant. The evidence of P.W.1/mother of the victim is also corroborated the same.
20. This Court as appellate Court and final Court of fact finding, while re-appreciating the entire evidence, finds that the appellant has made the prosecutrix to believe strongly that he would marry her and only thereafter, she has had physical relationship with the appellant. Therefore, it is clearly proved that the prosecutrix had not given any free consent and the consent obtained by the appellant is only based on the promise made by him that he would marry her.
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21. Further, from the evidence of the doctor/P.W.13 who conducted medical examination on the prosecutrix and the Accident Register Copy of the prosecutrix/Ex.P.12, P.W.15/doctor who conducted medical examination on the appellant, Ex.P.14/Accident Register Copy of the appellant, Ex.P.2/ DNA test report, the prosecution has proved that the appellant is the biological father of the child born to the prosecutrix. The learned counsel for the appellant has not substantiated his defence that only with free consent the appellant had physical relationship with the prosecutrix. Under these circumstances, the act committed by the appellant falls under Section 375 IPC which is punishable under Section 376 IPC. Therefore, the prosecution proved the charge framed against the appellant for the offence punishable under Section 376 IPC beyond all reasonable doubts.
23. Further as observed above, the appellant has made false promise of marrying the prosecutrix and therefore, the appellant has committed the offence under Section 417 IPC. Further the appellant has also threatened the prosecutrix not to reveal the same to anyone or 15/20 https://www.mhc.tn.gov.in/judis CRL A No.1076 of 2022 otherwise, he would kill her which falls under Section 506(ii) IPC. Therefore, the prosecution proved all the charges framed against the appellant beyond all reasonable doubts.
24. This Court carefully gone through the Judgments relied on by the learned counsel for the appellant. The facts and circumstance of the judgments referred to by the learned counsel are not identical and not related to the case on hand and they are entirely different. In first case viz., Maheshwar Tigga Vs. State of Jharkhand reported in (2020) 10 Supreme Court Cases 108, the accused and the victim have lived together for 4 years and after 4 years, the prosecutrix has lodged the complaint as if, the accused committed rape on her. Therefore, the Court did not believe the version of the prosecutrix whereas, in this case, the appellant has made false promise to the prosecutrix and made her to believe that he would marry her and subsequently, he had physical relationship with her and after she became pregnant, he refused to marry. Thereafter, the prosecutrix has informed the same to her mother and subsequently, Panchayath was also taken place and thereafter, the appellant has escaped from the village. Therefore, the said case is not 16/20 https://www.mhc.tn.gov.in/judis CRL A No.1076 of 2022 identical to the present case and not applicable to the present case as stated supra.
25. In the second decision referred to by the learned counsel for the appellant viz, Dhruvaram Murlidhar Sonar Vs. State of Maharashtra reported in (2020) 3 SCC (Cri), both the accused and the prosecutrix were lovers and they lived together for years. Subsequently, the appellant failed to marry her and he had physical relationship during the love affair whereas in this case, it is not the case of the prosecutrix or defence that both are lovers and they lived together for years. Therefore, the contention of the learned counsel for the appellant is not acceptable. Even in the said decision itself, it is stated that each case has its own unique facts and circumstances. Therefore, that case also cannot be treated as an identical case with the present case on hand.
26. Considering the fact that in this case the procurtrix herself has given the complaint/Ex.p.5 wherein she has clearly narrated under what circumstances, the appellant committed the offence and as the 17/20 https://www.mhc.tn.gov.in/judis CRL A No.1076 of 2022 prosecution has proved its case beyond all reasonable doubts as stated above.
27. Therefore, this Court does not find any perversity in the Judgment passed by the trial Court and there is no merit in the appeal and the appeal is liable to be dismissed.
28. Accordingly, this Criminal Appeal is dismissed. Consequently connected Miscellaneous Petition is closed. The respondent police is directed to secure the appellant to undergo the remaining period of sentence if any.
16.11.2022 ksa-2 Index:Yes/No 18/20 https://www.mhc.tn.gov.in/judis CRL A No.1076 of 2022 To
1. The Sessions Judge, Fast Track Mahila Court, Krishnagiri.
2. The Inspector of Polcie Uthangarai Police Station Krishnagiri District
3. The Public Prosecutor Officer, High Court, Madras
4. The Section Officer, Criminal Section, High Court, Madras. 19/20 https://www.mhc.tn.gov.in/judis CRL A No.1076 of 2022 P.VELMURUGAN, J ksa-2 Criminal Appeal No.1076 of 2022 16.11.2022 20/20 https://www.mhc.tn.gov.in/judis