Madras High Court
Ekambaram vs State By on 22 July, 2016
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22-07-2016 (Judgment reserved on 12.07.2016) CORAM: THE HONOURABLE MR.JUSTICE R.SUBBIAH Crl.A.No.314 of 2015 Ekambaram, S/o Arumugam (Accused confined in Central Prison, Puzhal) .. Appellant Vs. State by: Inspector of Police, Kaatur Police Station, Ponneri, Thiruvallur. .. Respondent Criminal Appeal filed under Section 374(2) Cr.P.C., against the judgment, dated 10.03.2015 in S.C.No.125 of 2010 on the file of the Sessions Court, Mahila Court (Fast Track Mahila Court), Thiruvallur. For appellant : Mr.Manoj Sreevalsan For respondent : Mr.P.Govindarajan, Addl.P.P. JUDGMENT
This Criminal Appeal is filed against the judgment dated 10.03.2015 passed in S.C.No.125 of 2010 on the file of the Sessions Court / Mahila Court (Fast Track Mahila Court), Thiruvallur. By the said judgment, the appellant/accused was convicted for the offence under Section 376 IPC and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.25,000/-, in default, to undergo one year simple imprisonment and he was also convicted for the offence under Section 417 IPC and sentenced to undergo one year rigorous imprisonment. The trial Court ordered the sentences imposed on the appellant/accused to run concurrently.
2. The case of the prosecution is as follows:
(a) P.W.1 / victim / de-facto complainant (Prabhavathy), aged about 26 years, was residing in Mannoor, Perumal Koil Street, Kadapakkam, Tiruvallur District. She is the daughter of P.Ws.2 and 3. P.W.1 was running a provisional shop in front of her house in her village. The appellant/accused is also residing in the same village and he used to go to the provisional shop of P.W.1 very often. Due to frequent visits by the appellant/accused to the said shop of P.W.1, they have developed close intimacy with each other.
(b) While so, two years prior to the date of lodging the complaint (Ex.P-1), on one day, the appellant/accused who came to the shop of P.W.1, went and had hidden himself inside the house of P.W.1. When P.W.1 came from her shop and entered into her house for having lunch, the appellant/accused, who was hiding himself inside the house, locked the door from inside and forcibly committed rape on her. When P.W.1 made a hue and cry, the appellant/accused pacified her, stating that he would marry her.
(c) Thereafter, the appellant/accused continued to have sexual intercourse with her after giving false promises of marrying her. In this situation, P.W.1 has become pregnant. When P.W.1 was three months pregnant, P.W.3, the mother of P.W.1, came to know about the pregnancy of her daughter and she informed the same to P.W.2, who is the father of P.W.1. Though P.W.1 was requesting the appellant/accused to marry her, he was avoiding to marry her. In this situation, P.W.1 delivered a female child. When P.W.1 met the appellant/accused with the child and requested him to marry her, he refused to marry her.
(d) Finally, on 10.04.2006, P.W.1 lodged Ex.P-1 complaint with P.W.9 Sub-Inspector of Police of Kattur Police Station, Thiruvallur District and the said complaint was received on the same day and FIR was registered at about 18 hours in Crime No.37 of 2006 for the alleged offences under Sections 417 and 376 IPC. P.W.9 sent the FIR to P.W.10 Inspector of Police. P.W.10 went to the house of P.W.1 and enquired P.Ws.2 and 3 and recorded their statements. P.W.10 arrested the appellant/accused on 11.04.2006 at about 9 a.m. On 12.04.2006, P.W.10 went to the house of P.W.1 and enquired the witnesses P.Ws.4 to 7, who are the people in the same colony and recorded their statements.
(e) On 19.04.2006, P.W.10 made a request to the Judicial Magistrate No.2, Ponneri through the Head Constable, to conduct DNA test for the appellant/accused, P.W.1 and her child. Thereafter, the DNA test was conducted. Since P.W.10 went on transfer, the investigation was handed over to P.W.11. On 14.06.2006, P.W.11 recorded the statement of the Assistant Director of the Forensic Science Department. After completing investigation, the charge sheet was filed against the appellant/accused for the offences under Sections 376 and 417 IPC.
3. The case was taken on file by the trial Court in S.C.No.125 of 2010. During the course of trial, the prosecution has examined eleven witnesses and marked five documents. When the appellant/accused was questioned under Section 313 Cr.P.C., he denied his complicity in the crime. He neither examined any witness nor marked any document.
4. Upon hearing the submissions of both sides and considering the oral and documentary evidence available on record, the appellant/accused was convicted by the trial Court for the offence under Section 376 IPC and sentenced to undergo seven years rigorous imprisonment and to pay a fine of Rs.25,000/-, in default, to undergo one year simple imprisonment and he was also convicted for the offence under Section 417 IPC and sentenced to undergo one year rigorous imprisonment. The trial Court ordered the sentences imposed on the appellant/accused to run concurrently. Challenging the said conviction and sentence, the appellant/accused has filed this appeal.
5. Learned counsel for the appellant/accused submitted that even as per the evidence of P.W.1, she was in an adulterous relationship with the appellant/accused for more than five years. He further submitted that P.W.1 is well aware of the fact that the appellant/accused is a married man and the evidence available on record would show that P.W.1 has consented to have sexual intercourse with the appellant/accused. He further contended that since P.W.1 also admitted in her evidence that the appellant/accused is a married man, the question of consent was not in consequence of any misconception of fact. Therefore, the question of convicting the appellant under Section 417 IPC does not arise. Learned counsel for the appellant invited the attention of this Court to the evidence of P.W.2, the father of P.W.1 and her father has stated that the key of the house would be available with P.W.1. The said piece of evidence of P.W.2 would show that the case projected by the prosecution that the appellant/accused had entered into the house and had hidden himself and committed the act of rape, is nothing but false. The sum and substance of the arguments of the learned counsel for the appellant/accused is that no case has been made out to convict the appellant/accused either for the offence under Section 376 IPC or even for the offence under Section 417 IPC and therefore, he prayed for setting aside the judgment of conviction and sentence passed by the trial Court and to allow the appeal.
6. Per contra, learned Additional Public Prosecutor appearing for the respondent/Police submitted that the reasons assigned by the trial Court for convicting the appellant, are sound and convincing. The evidence available on record shows that P.W.1 and the appellant/accused were in intimate-terms and the appellant had physical relationship with P.W.1 on giving false promise of marrying her, thereby, ultimately, the appellant fooled P.W.1 on misconception of fact. Therefore, learned Additional Public Prosecutor prayed for dismissing the appeal.
7. I have given my anxious consideration to the submissions made on either side and perused the materials available on record.
8. The main submission of the learned counsel for the appellant/accused is that the case projected by the prosecution based on the evidence available on record, would not attract the offences under Sections 376 and 417 IPC. It is the defence of the appellant/accused that P.W.1, knowing fully well that the accused is a married man, consented to have sexual intercourse with him. In this regard, learned counsel for the appellant invited the attention of this Court to the evidence of P.W.1. On a careful reading of the evidence of P.W.1, I find that P.W.1 herself stated that she is an unmarried woman and the house of the appellant/accused is just 50 feet away from her house/shop. She further adduced evidence that she knows the wife of the appellant/accused. She further stated that even prior to the date of occurrence, she was having regular sexual intercourse with the appellant/accused. Moreover, as seen from her evidence, knowing fully well that the appellant is a married man, she has voluntarily and on her own consent, had sexual intercourse with the appellant/accused. Though P.W.1 had stated in Ex.P-1 complaint that just two years prior to the date of the complaint, the appellant/accused went and had hidden himself inside her house and when she went to her house from the shop to have lunch, the appellant locked the door from inside and committed rape on her, in the cross-examination, P.W.1 stated that the key of the house was only with her and one has to enter into the house only through the shop which she was looking after. Therefore, this piece of admission made by her in the cross-examination, would undoubtedly show that the statement of P.W.1 that she was raped by the appellant just two years prior to the date of compliant inside the house of P.W.1, cannot be believed, more particularly, when she herself has admitted in her evidence that even prior to the date of occurrence, she was having regular sexual intercourse with the appellant/accused.
9. That apart, I find that P.W.2, the father of P.W.1, has also stated in his evidence that while he and her wife P.W.3 were going out for work, they will lock the house and hand over the key to their daughter P.W.1 and she used to look after the shop. Therefore, considering the evidence of P.Ws.2 and 3, as stated above, the statement of P.W.1 in the chief examination and also in her complaint (Ex.P-1) that the appellant/accused went and had hidden himself inside the house of P.W.1 and committed rape on her in the house of P.W.1, cannot be believed. In fact, the evidence of P.W.1 does not inspire the confidence of this Court. Further, P.W.3, the mother of P.W.1, also has admitted in his evidence that the appellant/accused and his wife very often used to come to P.W.1's shop to buy things. Therefore, from the evidence of P.W.3 mother, it is clear that only on consent, P.W.1, an unmarried woman, on her own volition, had sexual intercourse with the appellant/accused, who is a married man for more than five years.
10. With regard to all the above aspects, it is worthwhile to quote the relevant portions of the respective evidence of the prosecution witnesses.
11. Firstly, with regard to the fact that, on consent, P.W.1, an unmarried woman, on her own volition, had sexual intercourse with the appellant/accused, who is a married man for more than five years, it is appropriate to extract the relevant portion of the evidence of P.W.1 in her cross-examination, as follows:
@/// rk;gtj;jpw;F Kd;g[ clYwt[ mDgtk; cz;L/ ahUld; cz;L vd;why; vjphpa[ld; clYwt[ bfhz;Ls;nsd;/ rk;gtj;jpw;F Kd;dho vdf;F vjphpa[ld; 5 tUlkhf gHf;fk; cz;L/ me;j 5 tUl';fshf vjphpa[ld; vdf;F clYwt[ gHf;fk; cz;L/ rk;gtj;jpw;F Kd;g[ vjphpf;F jpUkzk; Mfptpl;lJ vd;W bjhpe;nj ehd; mtUld; clYwt[ itj;Jf; bfhz;nld;/ ///@
12. Thus, it could be inferred that the appellant/accused would not have forcibly had sexual intercourse with P.W.1 in 2004, when it is admitted by P.W.1 that the appellant/accused and herself were continuing sexual relationship for the last five years.
13. Further, with regard to the allegation that the appellant/accused entered into the house and had hidden himself inside the house of P.W.1, P.W.1 had stated in cross-examination, as follows:
@//// kspif fil. tPL vy;yhk; xd;whfjhd; cs;sJ/ kspif filapypUe;J gpd;dhy; ,Uf;Fk; v';fs; tPl;ow;F bry;yyhk;/ tPl;oypUe;J kspif filf;Fk; tuyhk;/ vd; jha;. je;ij ntiyf;F bry;Yk;nghJ tPl;il g{l;o tpl;L bry;thh;fs; vd;why; tPL jpwe;J jhd; ,Uf;Fk;/ tPL g{l;otpl;L rhtp vd; ifapy; jhd; ,Uf;Fk; vd;why; rhpjhd;/ tPl;il jpwf;f ntz;Lk; vd;why; ehd; jhd; jpwf;f ntz;Lk;. ///@
14. Moreover, with regard to the locking the house, P.W.2, the father of P.W.1 and P.W.3, the mother of P.W.1, have deposed in their cross-examinations, as follows:
P.W.2 : @/// ehDk;. vd; kidtp ntiyf;F brd;Wtpl;lhy; g{l;o rhtpia vd; kfsplk; jhd; bfhLg;nghk; vd;why; rhpjhd;/ ////@ P.W.3 : @ //// v';fs; tPl;oy; fil tPL xd;whfjhd; cs;sJ/ fil tHpahf jhd; tPl;ow;F cs;ns bry;y ntz;Lk; ////@
15. Therefore, it is clear that P.Ws.2 and 3, while leaving for work, usually lock the house and give the key to their daughter P.W.1. Only from the shop, one can enter into the house after opening the lock. Hence, the statement of P.W.1 in Ex.P-1 complaint that the appellant/accused had hidden himself inside the house, could not be believed. Furthermore, the prosecution has not taken steps to draw a rough sketch in the scene of occurrence to prove the entry and exit of the house from the shop. With regard to this, P.W.1 had stated in her cross-examination that, @///v';fs; tPl;ow;F nghyPrhh; te;J khjphp tiuglk; vJt[k; jahh; bra;atpy;iy///@
16. Yet another aspect to disprove the case of the prosecution is that they have filed to produce the earlier complaint given by P.W.1 to Ponneri All Women Police Station, when the fact remains that P.Ws.1 to 6 admitted that a complaint was given to the said Police and an enquiry was conducted. In this regard, P.W.1 had stated in her cross-examination that, @///Kjypy; bghd;ndhp midj;J kfsph; fhty; epiyaj;jpy; g[fhh; bfhLj;njd;/ gpd;dh; fhl;L:h; fhty; epiyaj;jpy; g[fhfh; bfhLj;njd;/////@ P.W.3, the mother of P.W.1, had stated in her cross-examination that, @ ///// Kjypy; bghd;ndhp midj;J kfsph; fhty; epiyaj;jpy; jhd; g[fhh; bfhLj;jhh;fs; vd;why; rhpjhd;/ fhty; epiyaj;jpy; midtiua[k; miHj;J tprhuiz bra;jhh;fs;/ tprhhpj;J vGjp th';fpdhh;fs;/ eh';fSk; ifbaGj;J nghl;nlhk;/ midj;J kfsph; fhty; epiyaj;jpy; tprhhpj;jnghJ g[fhh; kw;Wk; rkhjhd thf;FK:y';fis vd;dplKk; vd; kfsplk; xg;gilj;jhh;fs;/ me;j Mtz';fis fhl;L:h; fhty; epiyaj;jpy; bfhLj;njhk;/ ///@ The prosecution has not explained for not producing / marking the said earlier complaint given by P.W.1. Had the earlier complaint been produced, it would have been silent about any such alleged incident that had happened two years prior to 10.04.2006 as alleged in Ex.P-1. Therefore, adverse inference could be drawn against the prosecution. Hence, for all the above reasons, the question of convicting the appellant/accused under Section 376 IPC does not arise in this case.
17. So far as the conviction imposed on the appellant/accused for the offence under Section 417 IPC is concerned, the fact that P.W.1 consented to have sexual intercourse with the appellant by believing the false promise made by him that he would marry her, also cannot be accepted, because, P.W.1 knowing fully well that the appellant/accused is a married man, had sexual intercourse with him with consent and her consent was not in consequence of any misconception of fact.
18. Moreover, the prosecution version is that P.W.1 is aged about 26 years and she was running a provision shop and this shows that she cannot be cheated easily. P.W.1 in her evidence stated that the appellant/accused was a coolie and used to go for work daily to meet his day-to-day needs. With regard to this aspect, she has stated in her cross-examination that, @/// vjphp tptrha ntiy bra;J te;jhh;/ vjphp trjpahdth; my;y/ mth; tptrha Typjhd;/ jpdk; jpdk; Typntiyf;F brd;why; jhd; $Ptdk;/ ////@. Hence, it is evident that the appellant/accused could not have made P.W.1 to yield his desire.
19. With regard to the alleged promise of the appellant/accused to marry P.W.1, the prosecution has admitted that P.W.1 knows that the appellant is a married man. Therefore, it could be inferred that such a promise could not have been made to influence the mind of P.W.1. On this aspect, it is useful to extract the evidence of P.Ws.1, 2 and 3, in their cross-examinations, as follows:
P.W.1: @ /// M$h; vjphp tPl;ow;F gpd;g[wkhf vd; tPL mike;Js;sJ/ vd;Dila tPl;oypUe;J 3tJ tPL vjphp tPL/ vjphpapd; tPL v';fs; tP;l;oypUe;J Rkhh; 50mo J}uj;jpy; cs;sJ vd;why; rhpjhd; //// //// vjphpapd; kidtp yy;yp v';fs; kspif filapy; bghUl;fs; th';Fthh;fs; vd;why; rhpjhd;/ fpuhkk; vd;gjhy; bghUl;fs; v';fs; kspif filapy; th';Fthh;fs; vd;why; rhpjhd;/ filf;F tUk; gl;rj;jpy; vjphpapd; kidtp yl;Rkp ey;y gHf;fk; vd;why; rhpjhd;/ ///@ P.W.2: @vjphpf;F jpUkzk; Mfp Rkhh; 25 tUl';fs; ,Uf;Fk; vd;why; 15 my;yJ 16 tUl';fs; ,Uf;Fk;/ vjphpapd; kidtp bgah; yy;yp vd;why; rhpjhd;/ vjphpf;F jpUkzk; Mfp mtUila kidtp yy;yp vd;gtUk; jpUkzk; Md fhyj;jpy; ,Ue;J v';fs; Chpy; jhd; ,Ue;J tUfpwhh;fs; vd;why; rhpjhd;/ vjphp kw;Wk; mtUila FLk;gj;jhUld; ey;y gHf;fk; vd;why; rhpjhd;/ /// /////@ P.W.3 : @vjphp Vfhk;guk; v';fs; Ch;f;fhuh;/ mtUf;F jpUkzk; Mfp 25 tUlk; ,Uf;Fk; vd;why; rhpjhd;/ mtUila kidtp bgah; yy;yp vd;why; rhpjhd;/ vd; kfs; kspif fil itj;Js;shh;/ v';fs; kfs; itj;Js;s kspif filf;F vjphpa[k; mth; kidtpa[k; Ch;f;fhuh;fs; tUthh;fs; vd;why; rhpjhd; ///@
20. Therefore, from the above evidence, it is seen that P.W.1 was consciously aware of the fact that the appellant/accused was already a married man. Hence, the allegation that the appellant promised to marry her is a figment of imagination by P.W.1 to make out a false case against the appellant. On coming to know of the fact that the appellant/accused was having relationship with P.W.1, there were frequent quarrels with the family of P.W.1. In this context, it is worthwhile to extract the evidence of P.Ws.3 and 4 in their cross-examinations, as follows:
P.W.3: @ /// vjphpa[ld; vdJ kfs; gHfp clYwt[ bfhz;oUe;jhh; vd;w tptuk; bjhpe;J vjphpapd; kidtp yy;yp gyKiw v';fs; FLk;gj;jhUld; rz;il nghl;lhh; vd;why; rhpjhd; ///@ P.W.4 : @ /// rk;gtj;jpw;F Kd;gpypUe;nj vjphpa[ld; gpughtjp beU';fp gHfp tUfpwhh; vd;w tptuk; bjhpe;Jk;. vjphpapd; kidtp yy;yp gpughtjp FLk;gj;jhUld; gyKiw rz;il bra;Js;shh; vd;why; mJgw;wp vdf;F bjhpa[k;/ rk;gt fhyj;jpw;F Kd;ng ,e;j tptuk; bjhpate;jJ Cuhh; Kd;dpiyapy; tprhuiz ele;jJ vd;why; rhpjhd; ///@
21. In support of his contentions, learned counsel for the appellant/accused relied on a decision of the Supreme Court reported in 2003 (4) SCC 46 = AIR 2003 SC 1639 (Uday Vs. State of Karnataka), wherein, the Apex Court held as follows:
"21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with the view, but we must add that there is no straightjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
.. ...
23. Keeping in view the approach that the Court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown up girl studying in a college. She was deeply in love with the appellant. She was however aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact."
22. Learned counsel for the appellant/accused also relied on a judgment of the Apex Court reported in 2016 (4) SCC 140 (Tilak Raj Vs. The State of Himachal Pradesh), wherein, the Supreme Court observed as follows:
"16. We have carefully heard on both the parties at length and have also given our conscious thought to the material on record and relevant provisions of the Penal Code, 1860 (in short, "the IPC"). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the prosecutrix in her testimony before the trial Court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of copy of the FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable.
17. The evidence as a whole including FIR, testimony of prosecutrix and MLC report prepared by medical practitioner clearly indicate that the story of prosecutrix regarding sexual intercourse on false pretext of marrying her is concocted and not believable. In fact, the said act of the appellant seems to be consensual in nature. ..."
18. As far as conviction of the appellant under Sections 417 and 506 Part I of IPC is concerned, a close scrutiny of evidence of the prosecutrix (PW 2) along with other prosecution witnesses is done by this Court. Section 417 of IPC prescribes punishment for the offence of cheating as defined under Section 415 of IPC. Section 415 of IPC reads thus:
"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 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, is said to "cheat".
Explanation.--A dishonest concealment of facts is a deception within the meaning of this Section."
19. The ingredients required to constitute the offence of Cheating have been discussed by this Court in the case of Ram Jas Vs. State of U.P. (1970 (2) SCC 740) as under:
"(i) there should be fraudulent or dishonest inducement of a person by deceiving him;
(ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property."
20. A careful reading of evidence on record clearly shows that there is no evidence against the appellant from which it can be conclusively inferred by this Court that there was any fraudulent or dishonest inducement of the prosecutrix by the appellant to constitute an offence under Section 415 of IPC. For conviction of the Appellant for above said offence, it is important that all the necessary ingredients constituting an offence under the said Section must be proved beyond reasonable doubt. In the instant case, the appellant cannot be convicted for the offence of cheating punishable under Section 417 of IPC as the prosecution has failed to prove all ingredients of the said offence beyond reasonable doubt."
23. Learned counsel for the appellant also relied on a judgment of the Supreme Court reported in 2014 (5) SCC 678 (Vinod Kumar Vs. State of Kerala), wherein, the Apex Court held as follows:
"'14. We are in no manner of doubt that in the conspectus that unfolds itself in the present case, the prosecutrix was aware that the appellant was already married but, possibly because a polygamous relationship was not anathema to her because of the faith which she adheres to, the prosecutrix was willing to start a home with the appellant. In these promises, it cannot be concluded beyond reasonable doubt that the appellant is culpable for the offence of rape; nay, reason relentlessly points to the commission of consensual sexual relationship, which was brought to an abrupt end by the appearance on the scene of the uncle of the prosecutrix. Rape is indeed a reprehensible act and every perpetrator should be punished expeditiously, severally and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt. In our deduction there was no seduction; just two persons fatally in love, their youth blinding them to the futility of their relationship."
24. The dictum laid down by the Apex Court in the above said judgments of the Supreme Court, is squarely applicable to the facts of the case on hand. In the case on hand, P.W.1 knowing fully well that the appellant/accused is a married man, voluntarily and consciously consented to have sexual intercourse with him and her consent was not in consequence of any misconception of fact. Therefore, the question of conviction and sentence imposed on the appellant/accused for the offence under Section 417 IPC does not arise and hence, the same is liable to be set aside. Consequently, the conviction and sentence imposed on the appellant/accused for the offence under Section 376 IPC is also liable to be set aside.
25. For all the above reasons, the Criminal Appeal is allowed, setting aside the conviction and sentence imposed on the appellant/accused and he is acquitted of the charges. The appellant/accused is directed to be released forthwith, unless he is required in connection with any other case. The bail bond, if any executed by the appellant/accused shall stand cancelled. The fine amount, if paid by the appellant/accuses, shall be refunded.
22-07-2016 Index : Yes Internet: Yes cs Copy to
1. The Sessions Judge, Mahila Court (Fast Track Mahila Court), Thiruvallur.
2. The Public Prosecutor, High Court, Madras.
3. The Inspector of Police, Kaatur Police Station, Ponneri, Thiruvallur.
4. The Record Keeper, Criminal Section, High Court, Madras.
5. The Superintendent, Central Prison, Puzhal, Chennai.
R.SUBBIAH,J cs Judgment in Crl.A.No.314 of 2015 22-07-2016