Madras High Court
Dhanasekar vs State Rep By. Inspector Of Police on 11 August, 2021
Crl.A.No.132 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
[Judgment RESERVED ON : 28.06.2021]
[Judgment PRONOUNCED ON : 11.08.2021]
CORAM
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
Crl.A.No.132 of 2016
Dhanasekar ......Appellant
.. Vs ..
State rep by. Inspector of Police,
Salavakkam Police Station,
Crime No.308 of 2009 ...Respondent
PRAYER: Petition filed under Section 374 (2) of Cr.P.C, to set aside the
judgment passed against the appellant on 20.01.2016 in
S.C.No.56/2013 on the file of learned Sessions Judge, Mahila Court,
Chengalpet and acquit him from the charges.
For Petitioner : Mr.K.N.Nataraaj
For Respondent : Mr.R.Vinoth Raja,
Government Advocate (Crl.Side)
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https://www.mhc.tn.gov.in/judis/
Crl.A.No.132 of 2016
JUDGMENT
The convicted sole accused is the appellant herein.
2. The above appeal is filed by the convicted accused against the conviction and sentence passed by the Mahila Sessions Court, Chengalpat for offence under Section 417 of I.P.C and sentenced to undergo one year Rigorous Imprisonment with fine of Rs.1000/-, in default to undergo three months Rigorous Imprisonment.
3. The respondent-police filed the final report in Crime No.308 of 2009, Salavakkam Police Station alleging that the victim is 18 years old deaf and dumb and on promise to marry, he had sexual intercourse multiple times and thereby committed an offence under Section 376 I.P.C and after having sexual relationship, he refused to marry and hence committed an offence under Section 417 of I.P.C.
4. After observing the formalities, the case has been taken up on file as P.R.C.No.8/11 and on committal, made over to Mahila Court in S.C.No.56/13.
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5. The Trial Court has framed charge under Sections 376 and 417 of I.P.C. During trial, the victim was examined as P.W.2 and her mother, de-facto complainant was examined as P.W.1 and interpreter and special teacher from school for dumb was examined as P.W.3 and relative of P.W.1 was examined as P.W.4 and Doctor who had examined the accused was examined as P.W.5 and receipt Ex.P2 was marked. P.W.6 is Doctor who had examined the victim girl and gave Medical Certificates under Ex.P3 and Ex.P4 and P.Ws.7,8,9 are police witnesses who deposed about receipt of Ex.P1 complaint and registration of Ex.P7 F.I.R and recording of statement of witness and filing of the charge sheet after investigation.
6. Based upon the answer elicited in the cross-examination of P.W.2 and P.W.1, the learned Sessions Judge has held that the prosecution has not proved the charge under Section 376 of I.P.C and accordingly, acquitted the accused. However, he held that the charge under Section 417 of I.P.C is made out and accordingly sentenced the accused as stated supra and hence this appeal by the accused.
7. The learned counsel for the appellant/accused contended that the trial Court has totally gone erroneous without considering the 3/14 https://www.mhc.tn.gov.in/judis/ Crl.A.No.132 of 2016 principles enunciated to constitute the alleged offence under Section 417 of I.P.C in the light of decision in the case of Hridaya Ranjan Prasad Verma Vs. State of Bihar (AIR 2000 SC 2341).
8. The trial Court was also carried away with sympathy, without adverting to the provisions of law which requires the existence of a promise at the time of alleged offences said to have been committed and relied on State of Kerala Vs. K. Vareed Pillai reported in AIR 1973 SC 426.
9. The learned Government Advocate (Crl.Side) appearing for the respondent has made submissions in support of the judgment of the trial Court.
10. P.W.2 Miss 'X' is a victim. She is a deaf and dumb and hence services of P.W.3 Padmavathy, special teacher in deaf and dumb school was hired by the police for enquiry and also before the Session Judge.
11. On a screening and scrutiny of the prosecution witness and documentary evidence adduced before Session Judge, this Court 4/14 https://www.mhc.tn.gov.in/judis/ Crl.A.No.132 of 2016 finds that the victim girl P.W.2 is aged about 18 years and below 19 years as per medical evidence, and she is aware of the fact that the accused is already a married man. In her chief examination, she stated that during the absence of her mother, the accused has be-friend with her and used to move around and expression is leve for her and promised to marry her and on such promise to marry, they moved around and it has been noticed by P.W.4.
12. Furthermore, it is also her evidence that the accused came and asked her mother for getting her married, however, her mother has refused to give in her marriage, since the accused is already a married person.
13. It remains to be stated that the specific evidence of P.W.2 regarding her sexual intercourse with the accused and she had stated that she knew that the accused was already a married person and on his promise to marry her, she had physical intimacy with him for multiple times and on last such occasion, her mother had witnessed, the physical relation indulged by both herself (P.W.2) and the accused and she saw without any dress on the body of the accused and hence, she had filed the complaint.
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14. In the cross-examination, she had categorically deposed (as interpreted by P.W.3) that during her relationship with the accused, she knew the accused is already a married person and despite his marriage, he united to marry her for the second marriage and on such promise, she had physical intimacy with the accused. With regard to interpretation, the evidence of P.W.3 pass test of credibility made by P.W.2/victim girl. The evidence of P.W.1 mother of the victim and P.W.4 relative of P.W.1 are to the effect that the accused initially approached the mother of the victim, namely P.W.1 for marriage with the victim girl and same was refused by the victim's mother P.W.1 on the ground that the accused is already a married man and further both the accused and the victim girl were roaming around which was noticed by P.W.4.
15. As to the evaluation of the evidence of the disabled victim person, the Hon'ble Supreme Court in 2021 SCC online SC 343 [Patan Jamal Vali Vs.The State of Andhra Pradesh] as to the testimony disbelieved the version of the prosecutrix and has observed that "49. There have been instances where the testimony of a disabled prosecutrix has not been considered seriously and treated at an 6/14 https://www.mhc.tn.gov.in/judis/ Crl.A.No.132 of 2016 equal footing as that of their able-bodied counterparts.
The legal personhood of persons with disabilities cannot be premised on societal stereotypes of their supposed "inferiority", which is an affront to their dignity and a negation of the principle of equality."
16. This Court had an occasion to consider the case of a victim girl/disabled person (blind accused) in Anburaj's case reported in CDJ Madras 2021 Page No, wherein I have held that the evidence of disabled person is no way to be inferior to that of an abled-bodied person.
17. In the decision reported in 2014 (2) MWN (Cr.) 321 [Mariyadoss Vs.State by Inspector of Police] Brother Justice P.N.Prakash, J has held as under:-
"13. The Madras High Court has issued a circular in R.O.C.No.1729/2010/RR, dated 2.6.2010 to all the Subordinate Courts, containing a list of Advocates, who are trained to provide assistance to the Court for recording the evidence of deaf and dumb witnesses. This list has been prepared for all the Districts in the State and the mobile numbers of the Advocates are also given.7/14
https://www.mhc.tn.gov.in/judis/ Crl.A.No.132 of 2016 This R.O.C was issued pursuant to the direction by this Court on 30.11.2009 in W.P.(MD) No.5802 of 2006. A part from the names of the Advocates, the list also contains the addresses of Special Schools for deaf and dumb in Tamil Nadu from where the Courts can requisition the service of teachers for this purpose."
18. In the decision reported in 2012 SCC Online Madras 1743(2012) (2012) 2 LW (cri) 101,[K.V.Prabhu Raj Vs.State by Inspector of Police, A.W.P.S. Tambaram & another], it has been held that:-
"12. That was also a similar case of promise; sharing bed;
then the victim became pregnant and thereafter the accused declined to marry the victim. The accused was convicted under Section 471 I.P.C., in the said case. In paragraph No.10 of the said judgment, this Court has held as follows:-
"10. It is settled law, as laid down by this Court as well as Supreme Court that if on false promise, assuring marriage, the victim shared bed with an accused, as a result of which, the victim became pregnant, and subsequently, the accused did not keep up his promise, then, it would attract the offence under Section 417 of I.P.C. If there are materials to show that at the time of sharing the bed, the accused did not have the intention to marry the victim and he made the false promise, then the offence under Section 417 I.P.C., is 8/14 https://www.mhc.tn.gov.in/judis/ Crl.A.No.132 of 2016 clearly made out".
19. In the decision (2012) 5 Supreme Court Cases 789 [State of Rajasthan Vs.Darshan Singh alias Darshan Lal], the Supreme Court has held that:-
"29. To sum up, a deaf and dumb person is a competent witness. lf in the opinion of the Court, oath can be administered to him/her, it should be so done. Such a witness, if able read and write, it is desirable to record his statement giving him questions in writing and seeking answers in writing. In case the witness is not able to read and write, his statement can be recorded in sign language wit the aid of interpreter, if found necessary. In case the interpreter is provided, he should be a person of the same surrounding but should not have any interest in the case and he should be administered oath."
20. Section 119 of Indian Evidence Act as amended by the Parliament with effect from 15.3.2013 reads as under:-
"119. 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".9/14
https://www.mhc.tn.gov.in/judis/ Crl.A.No.132 of 2016 Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed".
21. It is to be noted that on bare reading of Section 119 of the Indian Evidence Act, it is clear that the Court has to first ascertain as to whether the witness is capable of writing. Only if, the witness is not capable of writing, the Court should require the witness to speak.
22. When the witness is unable to communicate, the Court shall take the assistance of a special educator as per the amended Act of Indian Evidence Act. In this regard, the circular issued by the High Court, is self-explanatory.
23. Merely because the Judicial Officer has not ascertained from the witness as to whether the witness is capable of writing or not, it will not cause any prejudice to the victim.
"We cannot forget the maxim actus curiae neminem gravabit, which means the act of Court should not prejudice any party. In our judicial system the Presiding Officer is the master of his Court and if 10/14 https://www.mhc.tn.gov.in/judis/ Crl.A.No.132 of 2016 for reasons, be it out of ignorance or on account of supine indifference or otherwise, if he fails to perform his duty in the manner known to law that cannot inure to the advantage of any party unless grave prejudice is shown to have been caused."
24. Section 119 of the Evidence Act is regarding the examination of dumb witness, when a person is unable to speak and this Section envisages recording of his evidence by a writing or by sign and it remains to be stated that the writing be given by the dumb witness in the Court and it can be treated as oral evidence and thus it is an instance whether the mute (dumb) witness is giving evidence in writing to the Court, the said writing shall be considered as a oral evidence and not documentary evidence and thus in such circumstances, the victim (who is a deaf and dumb), by writing through her writing, her evidence is considered as oral evidence, subject to the cross-examination as envisaged under the Indian Evidence Act.
25. In the instant case, P.W.3 Interpreter who is a special education Teacher in Deaf and Dumb school, and her services have been utilized by the police to ascertain the fact from the P.W.1 victim girl and she has also assisted in the Court both for prosecution as well 11/14 https://www.mhc.tn.gov.in/judis/ Crl.A.No.132 of 2016 as for the defence and hence she has no mala-fide and not interested in the prosecution of victim girl.
26. From her evidence, as extracted supra, P.W.2 has categorically deposed that she knew the accused who is already a married man. However on his expression of love that he would marry her, and on such promise to marry, she submitted her body and this Court finds that there is a promise and based upon the promise to the victim, he had relationship with the victim and thereafter the accused declined to marry the victim and the accused has committed the offence under Section 417 I.P.C.
27. In the cross-examination, she had categorically deposed that as the accused refused to marry and have her mother gave complaint and thus, this Court finds that there is a sufficient material to show that, at that time of sharing the bed, there was a promise to marry but that promise of accused is false and it is made only with view to have sexual relationship with her and thus this Court finds that the offence under Section 417 I.P.C is clearly made out and a similar finding was rendered by the Court below does not suffer from any illegality warranting interference.
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28. On the point of quantum of sentence, the trial Court has awarded one year Rigorous Imprisonment and it is commensurate with the proved charge. Accordingly, the conviction and sentence passed in S.C.No.56/13 is hereby confirmed and the appeal is devoid of merits.
29. Accordingly, this Criminal Appeal is dismissed. Since the appellant/accused is on bail, the trial court is directed to take steps to secure his presence to undergo the remaining sentence, if any.
11.08.2021
Internet :Yes / No
Speaking Order : Yes/No
nvi
To
The Sessions Judge, Mahila Court, Chengalpet 13/14 https://www.mhc.tn.gov.in/judis/ Crl.A.No.132 of 2016 RMT.TEEKAA RAMAN, J.
nvi Judgment made in Crl.A.No.132 of 2016 11.08.2021 14/14 https://www.mhc.tn.gov.in/judis/