Madras High Court
Jayakumar vs State Rep. By The on 8 June, 2021
CRL.A(MD).No. 48 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 16.03.2021
Pronounced on : 08.06.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRL.A(MD).No.48 of 2016
Jayakumar : Appellant / A1
Vs.
State rep. by the
The Inspector of Police,
Aravakurichi Police Station,
Karur District.
(Crime No. 324 of 2011) : Respondent / complainant
PRAYER:- Criminal Appeal filed under Section 374(2) Cr.P.C., to set
aside the Judgment of Conviction dated 26.11.2014, by the learned
Sessions Judge, Mahalir Neethimandram, (Fast Track Mahila Court) Karur,
in S.C.No.57 of 2013.
For Appellant : Mr.M. Karunanithi
For respondent : Mr. V. Neela Kandan,
Additional Public Prosecutor.
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https://www.mhc.tn.gov.in/judis/
CRL.A(MD).No. 48 of 2016
JUDGMENT
The Criminal Appeal is directed against the Judgment of conviction passed in S.C.No.57 of 2013, dated 26.11.2014 on the file of the Fast Track Mahila Court, Karur.
2. The Inspector of Police, Aravakurichi Circle has laid the final report against the first accused under Section 366(A) and 376 IPC, while against the second respondent under Section 366A IPC. It is alleged that the accused kidnapped the victim, a Class 10th student, on 23.08.2011 at about 7.00 a.m., took her to Palani Murugan Temple in a Van hired by them, wherein, the first accused forcibly tied the thali, took her to Nerkundram Chennai. In Chennai, the first accused had rented a house, had forcible sexual relationship with the victim. Hence, the final report.
3.The learned Judicial Magistrate No.II, Karur has taken the case on file in PRC.No. 10 of 2013 and furnished the copies of records under Section 207 Cr.P.C., on free of costs. The learned Magistrate, finding that the offence under Section 366(A) and 376 IPC are exclusively triable by 2/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 the Court of Sessions, after compliance under Sections 208 and 209 Cr.P.C., has committed the case to the file of Principal Sessions Court, Karur and the same was taken on file in S.C.No. 57 of 2013 and thereafter, the case was made over to the Principal Assistant Sessions Court, Karur.
4.The learned Assistant Sessions Judge, after appearance of the accused, on hearing both sides and on perusal of the records, being satisfied that there existed a prima facie case against the accused, framed charges under Section 366(A) and 376 IPC as against the first accused and under Section 366(A) IPC as against the second accused. The charges so framed were read over and explained to them and on being questioned, the accused denied the charges and pleaded not guilty. When the case was pending for trial, (as per the order of the Sessions Court) since the offence was against a women, the case was transferred to the Fast Track Mahila Court, Karur.
5.The prosecution, in order to prove its case, examined 17 witnesses as PW.1 to PW.17 and exhibited 21 documents as Ex.P1 to Ex.P21 and 8 material objects as MO.1 to MO.8.
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6.The case of the prosecution emerging from the evidence adduced by the prosecution in brief is as follows:
(a) PW.1 – Krishnasamy, the defacto complainant is the father and PW.2 - Manimekalai is the mother of PW.7 victim girl. PW.4 is the maternal grand father of PW.7. PW.1 to PW.8 are the residents of Periya Manju Veli, Aravakurichi Taluk. PW.1 is doing agriculture work. PW.7 was studying 10th Std., at Pallapatii Government Higher Secondary School, on the date of occurrence. As usual on 23.08.2011 at 7.10 a.m., she boarded a bus to go to the school and got down in Pallapatti Sha Nagar Bus stop. Both the accused, who were standing at the bus stop had asked her to come with them. When she refused, the first accused had threatened that he would kill her. When she refused to move, they had taken her in SKT private bus, which came at that time and taken her to Thadikombu.
After getting down at Thadikombu, they had taken her in the Van to Palani Murugan Temple and the first accused had tied Thali forcibly, though the victim had protested. Thereafter, he had taken her to Chennai Nerkundram through Erode and Salem and stayed there for five days. The first accused had sexual relationship forcibly with her. He locked her in the room, whenever he went out. After spending the amount, he had taken her to 4/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 Rengamalai on 29.8.2011 and after removing her Thali, directed her to go home and at that time, the Police came and took them to the Police Station.
(b) Since PW.7 did not return in the evening, after searching in various places and after coming to know that the first accused alone had taken PW.7, lodged a complaint under Ex.P1 on 25.08.2011 before the Aravakurichi Police. PW.15 the then Sub Inspector of Police Aravakurichi Police Station, who was on duty, had received the complaint at 6.00 p.m., on 25.08.2011 from P.W.1 and registered a case in Crime No.324 of 2011 under Section 366 (A) IPC and prepared the First Information Report under Ex.P16. He sent the original complaint and First Information Report to the jurisdictional Magistrate Court and a copy to the Inspector of Police. P.W.16–Chakkaravarthy, the then Inspector of Police, Aravakurichi Police Station has taken up the case for investigation and visited the occurrence police at about 18.45 hours and inspected the scene of occurrence in the presence of PW.6 - Velappan and one Ravi and prepared the observation Mahazar under Ex.P2 and drew a rough Sketch under Ex.P17. He examined the witnesses and recorded their statements. 5/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016
(c) On 29.08.2011 at about 9.00 a.m., he arrested both the accused at Rengamalai Privu Road in Karur to Dindigul NH and on enquiry, the first accused voluntary confessed and the same was recorded by PW.16 in the presence of PW.8 Senthil Kumar and one Rajendran and recovered MO.1 to MO.8 clothes in the presence of same witnesses through seizure Mahazar under Ex.P3. After examining PW.7 and on the basis of the confession statement of the accused, altered the case from 366A IPC to 366-A and 376 IPC and sent the alteration report under Ex.P21 to the concerned Court. He sent the recovered case properties to the Court through Form-95 under Ex.P18. He sent a requisition to the Court for the medical examination of the accused under Ex.P.19 and another requisition for medical examination of the victim PW.7 under Ex.P20. Thereafter, he examined PW.9 - Doctor Rajeswari, PW.13 Doctor Balasubramnai and recorded their statements. As P.W.16 was transferred, P.W.17 Salairam Sakthivel took up further investigation and examined PW.14 - Jeya Scientific Officer and received the Biological Report under Ex.P15. After completing the investigation, PW.17 has filed the charge sheet against the accused under Section 366A and 376 IPC. With the examination of PW.17, the prosecution has closed their side evidence.
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7.When the accused were examined under Section 313(1)(b) Cr.P.C., with regard to the incriminating aspects found available against the accused, they denied the same as false and further stated that a false case was foisted against them. Thereafter, the accused have examined three witnesses as DW.1 to DW.3 and adduced no documentary evidence.
8. DW.1 is the brother-in-law of the first accused. He came to know that PW.7 sent a message “I love you” to the first accused. Imediately, he went and warned the first accused as both of them belonged to different caste. After coming to know about the love affair, three persons from the family of PW.7 came and attacked DW.1 and his mother-in-law. Subsequently, after returning from the prison, the first accused had informed him that PW.7 had told that she could not live without him and that they could go somewhere else and get married. DW.2 is the employer of the second accused and while the second accused was on duty at about 3.00 P.M., on 27.08.2011, two persons came and took him. Subsequently, he came to know that the second accused was arrested and he took him out on bail. DW.3 is the class teacher of PW.7 and after coming to know that 7/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 PW.7 has not turned up to the school on 23.08.2011, she intimated the same to the Headmistress and to the parents of PW.7.
9.The learned Sessions Judge, upon considering the evidence adduced and on hearing the arguments of both sides has passed the impugned Judgment acquitting the second accused under section 235(1) Cr.P.C., and convicting the first accused for the offences under Sections 366A and 376 IPC and sentenced him to undergo 10 years Rigorous Imprisonment for each of the offence and also to pay a fine of Rs.1,000/- each and in default to undergo three months Rigorous Imprisonment. Aggrieved by the said Judgment of conviction and sentence, the first accused has prepared the present appeal.
10.Whether the impugned Judgment passed on 26.11.2014 in S.C.No.57 of 2013 on the file of Fast Track Mahila Court at Karur is liable to be set aside? is the point for consideration.
11. Heard the learned counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent. 8/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016
12. The case of the prosecution is that on 23.08.2011 at about 7.00 a.m., when PW.7 was proceeding to her school as usual, the accused had kidnapped her, took her to Palani Murugan Temple and forcibly tied Thali and that thereafter, he had taken her to Nerkundram, Chennai, and during their stay, he had sexual intercourse with her forcibly. The prosecution case is that the victim girl PW.7 was aged 14 years throughout the days of occurrence. Since the accused has taken a defence that everything was done as per the request and wish of PW.7, the first and foremost aspect to be decided, is to ascertain the age of the victim.
13.The learned counsel appearing for the appellant would contend that the prosecution has failed to prove the age of the victim - P.W.7 and the birth certificate was not produced to fix her age. He would further contend that the evidence of PW.12 Headmaster and Exs.P9 and P10 certificates cannot be taken as conclusive proof of age of the victim. PW1, father of PW.7, in his chief examination would say that his daughter was aged 14 years at the time of occurrence. PW.2 – mother of PW.7 would also depose in her cross examination that her daughter was studying 9/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 10th Standard at that time and she was aged 14 years. More particularly, PW.7 - victim in her chief examination would say that she was aged 18 years at the time of giving evidence before the Court and in cross examination, she specifically gave her date of birth as 28.03.1997 and that she has completed 17 years and is running 18 years at the time of giving her evidence before the Court.
14. As rightly contended by the prosecution, though PW.1, PW.2 and PW.7 were subjected to cross examination, their evidence with respect to the age of PW.7 was not at all challenged, nor was it even suggested to the said witnesses, that their evidence regarding the age of PW.7 was incorrect.
15. The prosecution, in an attempt to prove the age of the victim, has examined (PW.12) the Headmaster of Pallapatti Government Higher Secondary School, where PW.7 studied 10th Std., As per PW.12 and with the available records, he deposed that the date of birth of PW.7 is 28.03.1997 and he produced the certificate issued by him under Ex.P9 and a copy of the admission application given to the Pallapatti Higher Secondary School at the time of joining 6th standard along with record 10/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 sheet under Ex.P10. It is evident from Ex.P10 that PW.7 had studied upto 5th standard at Periyamanjuvali, Panchayat Union Elementary School and her date of birth has been recorded as 28.03.1997. During cross examination, PW.12 would say that they have not verified the date of birth with the birth certificate and that the school record sheet is sufficient.
16.It is pertinent to mention that the defence has disputed neither the genuineness nor the contents of Ex.P9 and Ex.P10. As rightly contended by the learned Additional Public Prosecutor, PW.12 was not at all cross examined disputing the date of birth of PW.7 and not even a suggestion was put to him disputing the same.
17.As per the requisition of the Investigating Officer, the jurisdictional Magistrate has sent PW.7 victim for medical examination. After radiology examination, they have issued a certificate under Ex.P6, recording their opinion that the girl is more than 14 years and less than 18 years of age. In cross examination, PW.9 - Medical Officer would say that as per the radiological report, opinion was given that PW.7 was aged more than 14 years but less than 18 years as on 23.08.2011. The evidence of 11/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 PW.9 with respect to their opinion about the age of PW.7 was not at all challenged in the cross examination. Considering the above, as rightly contended by the learned Additional Public Prosecutor, the ocular evidence of PW.1, PW.2 and PW.7 with respect to age of PW.7 stands corroborated by the school records and the evidence of PW.12 and also by medical evidence. As such, the finding of the trial Court that PW.7 was a minor, aged 14 years at the occurrence time cannot be found fault with.
18. Regarding the occurrence of kidnapping, forcible marriage and consequent forcible sexual relationship, PW.7 victim is the only competent witness to speak about the same. PW.7 in her chief examination evidence would say that on 23.08.2011 at about 7.00 am as usual she boarded the bus to go to school and got down at Pallpatti Sha Nagar Bus stop, that the first accused who was standing in the bus stop had asked her to accompany him and that when since she refused, he threatened to kill her and took her forcibly in another bus to Thadikombu and from there they had taken her in an Omini Van to Murugan Temple and despite her protest, he had tied Thali. She would further say that thereafter, the accused had taken her to Chennai Nerkundram and during their stay, he had sexual intercourse 12/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 forcibly, that whenever he went outside, he locked her in the room and that thereafter, he had taken her back to Rengamalai on 28.03.2011.
19. No doubt, in cross examination, PW.7 would admit that she had not raised any voice expressively to complain about the alleged kidnap. But, PW.7 would say categorically that since the accused had threatened that he would kill her, she had not done anything. She would further say, “... M[h; vjphp n[af;Fkhh; vdJ ifiag; gpbj;Jf; nfhz;lhh; mthplk; ,Ue;J ifia vLj;Jf;nfhs;s Kaw;rp nra;Njdh vd;why; nfhd;W tpLNtd; vd;W kpul;bajhy; mt;thW nra;atpy;iy. ... vd;id jhbf;nfhk;gpw;F mioj;Jr; nry;Yk; NghJ ghyKUfd; cld; te;jhh;. mg;NghJjhd; ehd; mONjd;. .... Ntdpy; $l;br; nry;Yk; NghJ ehd; Ntdpy; Vw kWj;J Mh;g;ghl;lk; nra;Njdh vd;why; nra;Njd;. godp mbthuj;jpy; jhyp fl;bdhh;. ehd; Vw;fdNt ehd; godpf;F nrd;wjpy;iy. ehd; jhyp fl;l Ntz;lhk; vd;W kWj;Njd;. .... ehq;fs; new;Fd;wj;jpy; 6 ehl;fs; jq;fpapUe;j NghJ tYf;fl;lhakhf vd;dplk; vjphp; cly; cwT itj;Jf; nfhz;lJ Fwpj;J tYf;fl;lhakhf vd;why; njhpAkh vd;why; vd;id fl;lhag;gLj;jp cwT itj;Jf; nfhz;lhh;.”
20. No doubt, as rightly contended by the defence, PW.7 in her 13/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 cross examination would say at one place that she does not know about forcible sexual intercourse, that she does not know as to whether the accused was lying over her or whether he had placed his hands and legs over her, that he had not done anything in her female organ, that his male organ has not touched her, that he had not done anything except closing her mouth for ¼ hours, that they were remaining in the room idle for six days, that both of them were there from morning till night in the same room without talking to each other and that he had no intercourse with her. But as rightly pointed out by the learned Additional Public Prosecutor, in the chief examination, as well in the cross examination, she would specifically state that the accused had sexual intercourse forcibly during their stay at Nerkundram. She would further say in her cross examination ;
“... vd;dplk; vjphp tYf;fl;lhakhf clYwT itj;Jf; nfhz;l NghJ vd;d cil cLj;jpapUe;Njd; vd;W vdf;Fj; njhpahJ. gs;;spf;$lj;jpw;F ehd; Adpghh;k; cld; jhd; nrd;Nwd;. clYwT itj;Jf; nfhz;l md;W vd;d cil cLj;jpapUe;Njd; vd;W njhpahJ. md;W NtW ciljhd; mzpe;jpUe;Njd;. me;j cil n[af;Fkhh; jhd; thq;fpf; nfhLj;jhh;. vjphp n[af;Fkhh; cly; cwT itj;Jf; nfhz;lNghJ J}uk; Md Neukh vd;why; ,y;iy.” 14/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016
21. It is pertinent to mention that during investigation, at the instance of the investigating officer, statement under Section 164 Cr.P.C., was recorded from PW.7 - victim under Ex.P7 by PW.11 Judicial Officer. No doubt, statement recorded under Section 164 Cr.P.C., from the victim is not a substantive evidence but at the same time, the same can be used to corroborate any other substantive evidence available and that the same can also be used by the accused for contradiction. PW.7 herself in cross examination would say that she was mentally good while giving statement before the judicial officer and again she would say that while she was taken to the Judicial officer for giving statement she was in clear mood and that she had narrated all the incidents which occurred, before the Judicial Magistrate. PW.11 in her evidence would say that PW.7 has given a statement that while she was staying with the accused, he had sexual intercourse forcibly and that PW.11 would further say that PW.7 has also stated that the accused took her to Thadikombu forcibly and threatened that he would kill her. The evidence of PW.7 regarding kidnapping, marrying her forcibly and consequent forcible sexual relationship by the first accused stands corroborated by the evidence of PW.11 and the 15/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 statement recorded under Section 164 Cr.P.C.,
22.Now, coming to the medical evidence, PW.9 Doctor would say that Hymen is absent and her vagina freely admits two fingers and therefore, the girl is not a virgin and has given her opinion that there is possibility that the girl had intercourse, in tune with the medical records under Exs.P5 and P6. In cross examination, PW.9 would say that at the time of examination, the victim had informed her that the accused had taken her to Chennai and during their stay for four days he had intercourse with her. She would further say that the victim was accustomed to the intercourse.
23.It is evident from the evidence of PW.13 Doctor and his reports under Exs.P12 and P.13 that after examination of the accused, he gave his final opinion that he found no obvious medical, surgical, psychological disorder, which interferes with the normal sexual relationship of the individual. PW.13 would say in clear terms that the accused had the capacity to have sexual intercourse.
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24.As rightly contended by the learned Additional Public Prosecutor, the evidence that PW.7 was subjected to sexual intercourse stands corroborated by the medical evidence also.
25. At this juncture, it is necessary to refer the defence putforth by the accused during the cross examination of the prosecution witnesses and by the examination of his own brother-in-law as D.W.1. During the cross examination of PW.1, it was suggested by the defence “.... 1k; vjphpAk; vdJ kfSk; ePz;l ehl;fshf fhjypj;J te;jhh;fs; vd;whYk;> vd; kfSf;F mtuJ tpUg;gj;jpw;F khwhf jpUkzk; nra;a Vw;ghL nra;jjhy; vdJ kfs; jhd; fhjypj;J te;j 1k; vjhpAld; tpUg;gg;gl;L tPl;il tpl;L ntspNawp mtuJ tpUg;gj;jpd; Nghpy; jpUkzk; nra;J nfhz;lhh; vd;whYk; rhpay;y. .... vd; kfs; mdpjhTk; 1k; vjphp n[af;FkhUk; rk;gtj;jpw;F Kd;Ng jpUkzk; nra;Jnfhz;L fztd; kidtpahf tho;e;J te;jhh;fs;
vd;whYk; ehd; nrhy;tJ Nghy; vd; kfis 1tJ vjphp fl;lhag;gLj;jp flj;jp nfhz;L nry;ytpy;iy vd;whYk; ehd; ngha; Gfhh; nfhLj;J ngha; rhl;rp nrhy;fpNwd; vd;whYk; rhpay;y” 17/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016
26.During the cross examination of PW.2, she would say “....mth;fs; 3 tUlkhf fhjypj;J te;jhh;fs; vd;whYk;> vd; kfs; tpUg;gg;gl;L jhd; vjphp n[aFkhUld; nrd;whh; vd;whYk; rhpay;y.” The very same stand was also put to PW.3 and the same was denied by him. When PW.7 was in witness box, following suggestions were put to her by the defence:
“... vd; mg;gh vdf;F jpUkzk; nra;a Vw;ghL nra;jTld; ehd; jhd; n[af;Fkhiu vq;fhtJ XbtpLNthk; vd;W $g;gpl;Nld; vd;why; rhpay;y. ehd; fhjypj;jjhy; jhd; vd; mg;gh NtW ahUf;Fk; jpUkzk; nra;J nfhLj;JtpLthh; vd;gjhy; vjphp jhyp fl;l ehd; rk;kjpj;Njd; vd;why; rhpay;y. ... ehd; jhd; vdf;F jpUkz Vw;ghL nra;tjhff; $wp n[af;Fkhiu mioj;J nry;y nrhd;Ndd; vd;why; rhpay;y... tpUk;gpj;jhd; nrd;Nwd; vd;why; rhpay;y.”
27.During cross examination of PW.16 - Investigating Officer, the following suggestions were made to him:
“... 1tJ vjphpAk; mdpjhTk; 3 tUlq;fshf fhjypj;J te;J ,UtUk; kdk; xj;J 1tJ vjphpAld; mdpjh jpUkzk; nra;J nfhs;s mtUld; tpUg;gj;Jld; nrd;whh; vd;whYk;> 1tJ vjphp 18/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 mdpjhit flj;jtpy;iy vd;whYk; 1tJ vjphp fPo; [hjp vd;gjhy; mdpjhNthL mtUf;F jpUkzk; Mff;$lhJ vd;gjw;fhf mrh1 Kjy; mrh 3 rhl;rpfspd; J}z;Ljy; Nghpy; vjphpfs; kPJ ngha; tof;F Nghlg;gl;Ls;sJ vd;why; rhpay;y.”
28.DW.1 – brother-in-law of the accused would say that he was informed by the accused that PW.7 told him that she could not live without him and that they could go somewhere else and get married and only because of the request made by the victim, the first accused had taken her.
29. Considering the above, it is very much clear that the accused has taken a specific stand that himself and PW.7 loved each other, as the parents of PW.7 opposed their relationship and were making arrangements to give her in marriage to some other person, at the request of PW.7, he had taken her and married her. To put it in short, the main contention of the defence is that everything was done with the consent of PW.7 victim. As already pointed out, PW.7 was aged 14 years at the time of occurrence. Even assuming for the sake of argument that PW.7 had given her consent to take her, marry her and also to have conjugal relationship, the consent 19/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 of PW.7 is not a consent recognized under law and as such, the accused cannot avoid or evade the consequences of the offences for which he is charged, under the guise of so-called consent given by PW.7. Considering the above, this Court has no hesitation to hold that the prosecution has proved the case beyond reasonable doubt.
30.Though the charge under Section 366A IPC was framed against the accused, the trial Court by invoking Section 222 of Cr.P.C., has convicted the accused for the offence under Section 366 IPC, since Section 366A IPC applies when the minor girl was taken away for the purpose of illicit intercourse with another person. But, Section 222 Cr.P.C., applies to cases in which the charge is of an offence which consists of several particulars, a combination of some of which constitutes a complete minor offence. In order to invoke Section 222 Cr.P.C., the major and the minor offences must be cognate offences. If the accused is charged for a major offence, but is not found guilty thereunder, he can be convicted of a minor offence. In the case on hand, 366A as well 366 of IPC attract the same punishment of imprisonment for a term which may extend to 10 years and also liable to fine. So the offence under Section 366 IPC cannot be 20/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 considered as a minor offence. Now, it is necessary to refer Section 221 Cr.P.C.,
221.Where it is doubtful what offence has been committed.
(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.”
31.Section 221(2) Cr.P.C., permits the conviction without framing a separate charge where the substance of the accusations in clear terms is explained to the accused and given a particular substance of accusation, whether it constitutes an offence under one Section or under another Section of IPC is only a matter of inference and consequence need not be stated in the charge.
32. The Hon'ble Supreme Court in K. Prema S. Rao and another 21/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 Vs. Yadla Srinivasa Rao and Ors reported in 2003 (1) SCC 217 held that though the charge specifically under Section 306 IPC was not framed but all the ingredients constituting the offence were mentioned in the statement of charges and hence, mere omission or defect in framing of charges does not disable the criminal Court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Hon'ble Apex Court has held that the provision of Section 221 Cr.P.C., takes care of such a situation and safeguards the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence he could have been charged with such offence. In the case of Dalbir Singh Vs. State of Uttarpradesh reported in 2004(5) SCC 334 the Hon'ble Apex Court has held that in view of Section 464 Cr.P.C., it is possible for the appellate or revisional Court to convict the accused for an offence, for which no charge was framed unless the Court is of the opinion that the failure of justice will occasion in the process.
33.Considering the above, this Court is of the view that no prejudice has been caused to the accused for non mentioning of Section 366 IPC in 22/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 the charge, as all the ingredients of the offence were disclosed. Hence, this Court concludes that the decision of the trial Court in convicting the accused for the offence under sections 366 and 376 IPC cannot be found fault with and this Court is in entire agreement with the same.
34.Now, turning to the punishment imposed, as already pointed out, the learned trial Judge has awarded 10 years Rigorous Imprisonment for both the offences under Section 366 and 376 IPC and fine of Rs.1000/- each in default to undergo three months simple imprisonment.
35.Considering the nature and seriousness of offence and also the way in which 14 years old minor girl was kidnapped, and the way in which she was ravished under threat, and now the accused raising a defence of consent, which is pseudo consent and has no legal sanctity, the punishment imposed by the trial Court is reasonable and the same cannot be said to be excessive. Hence, there is no need to interfere with the Judgment of conviction and sentence passed by the trial Court.
36.In the result, the Criminal Appeal is dismissed and the Judgment 23/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 of conviction and sentence passed by the learned Sessions Judge, Fast Track Mahila Court, Karur. in S.C.No.57 of 2013, dated 26.11.2014 is hereby confirmed. The trial Court is directed to take necessary steps to secure the accused to undergo the remaining period of sentence, if any.
08.06.2021 Index : Yes : No Internet : Yes : No trp/das To 24/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016
1. The learned Sessions Judge, (Fast Track Mahila Court) Karur.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
3.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.
K.MURALI SHANKAR,J.
25/26 https://www.mhc.tn.gov.in/judis/ CRL.A(MD).No. 48 of 2016 trp/das Pre-delivery order made in CRL.A(MD).No.48 of 2016 08.06.2021 26/26 https://www.mhc.tn.gov.in/judis/