Madras High Court
Subasakthi vs Anu Ranjith on 26 July, 2021
Author: A.D.Jagadish Chandira
Bench: A.D.Jagadish Chandira
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 30 . 03 . 2021
Pronounced on : 26 . 07 . 2021
CORAM
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.A.No.326 of 2018
Subasakthi
D/o.Vijaya Bharathi ... Appellant
Vs.
1. Anu Ranjith
S/o.Chandran
2.The Inspector of Police
All Women Police Station (East)
Coimbatore
(2nd respondent was impleaded vide order
dated 30.11.2018 made in Crl.MP.No.15948 of 2018)
... Respondents
Prayer: Criminal Appeal filed under Section 378 of Code of Criminal
Procedure to call for the records and to set aside the order of
acquittal passed by the Mahila Court, Coimbatore dated 06.12.2017
made in S.C.No.10 of 2016.
For Appellant : Dr.P.Vasudevan
For Respondents : Mr.Kingston Jerold for R1.
Mrs.Saradha Devi
Govt. Advocate (Crl. Side) for R2.
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JUDGMENT
(This case has been heard through video conference)
This Criminal Appeal has been filed to call for records and
to set aside the order of acquittal passed by the Mahila Court,
Coimbatore dated 06.12.2017 in S.C.No.10 of 2016.
2.The brief facts of the case is that the
appellant/prosecurtix /P.W.1 was resident of Kamarajar Road,
Varadharajapuram, Singanallur and that prior to 1 ½ years of the
occurrence, she had gone to Arvind Hospital for eye treatment. At
that time, the first respondent/accused who was working in the
Armed Police, Palakkad, as a Police Man had come there for eye
treatment of his father. During that time, they got acquainted with
each other and that the first respondent/accused had made her
believe that he would marry her after his younger sister's marriage
and that he used to speak with her in mobile phone often.
3. Whileso, on 04.10.2013 at 12.30noon he had come to
meet her at her house when no one was there and had induced her
saying that he would marry her and by deceit made her believe that
she is lawfully married to him and had forceful sexual intercourse
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with her. Thereafter, the first respondent did not contact her and
thereby the appellant along with her parents had gone to
Muttukulangara police camp Palakad, where the first
respondent/accused was working. At that time, the first
respondent/accused had taken them to his house, and there he had
told the appellant and her family members that they are Malayalees
and the appellant is Tamil girl, that his family members had refused
to give concurrence for marriage. On refusal of marriage, the
appellant had given a complaint to the District Police at Palakad,
Kerala who had taken up the complaint and later finding that the
offence was committed within the jurisdiction of Tamil Nadu had
referred the same to the second respondent under Reference
G/66413/13P dated 21.12.2013, on the point of jurisdiction. The
second respondent police based on the reference registered a case
in Cr.No.5 of 2014 under Section 376 IPC, and thereafter proceeded
with the investigation and filed the final report against the first
respondent/accused before the Mahila Court, Coimbatore for the
offence under sections 376, 417 and 493 IPC. The case was taken
up in PRC.No.10 of 2016, on appearance of the first
respondent/accused copies of the documents were furnished to him
under Section 207 Cr.PC. and the Court finding that the case was
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exclusively triable by the Court of Sessions had committed the case
to the Principal District and Sessions Judge, Coimbatore and the
case was taken up in SC.No.10 of 2016. Later it was made over to
the Sessions Judge, Magalir Neethimandram, Mahila Court,
Coimbatore for trial. The trial judge after perusal of the documents
and initial questioning, framed charges against the first
respondent/accused for the offence under Section 376, 417 and 493
IPC.
4. When the accused was questioned he denied the
charges and sought to be tried.
5. On the side of the prosecution, PW1 to PW14 were
examined and Exs.P1 to Ex.P21 were marked and no material
objects were marked. After completion of evidence, on the side of
the prosecution when the accused was questioned under Section
313 (1)(b) in respect of the incriminating materials found against
him, he denied charges and submitted a written explanation and
claimed to examine witnesses on the side of the defence. However,
no oral or documentary evidence was let in on behalf of the
accused. The trial court after hearing the counsel on either side,
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rendering a finding that the charges against the first
respondent/accused were not proved by the prosecution beyond
reasonable doubt had acquitted the first respondent/accused. As
against the order of acquittal, the present appeal has been filed by
the appellant/prosecutrix/defacto complainant.
6. The learned Counsel for the appellant/Prosecutrix
submitted that the order passed by the trial Court is patently
culpable, inherently improbable and is against procedural
safeguards. The learned trial Judge failed to note that in a case of
rape, delay in preferring the complaint does not assume much
importance since in the Indian society, the women are reluctant to
give complaints immediately and in this case only on the failure of
the accused to honour the promise of marriage, the prosecutrix had
given the complaint. He would submit that the respondent/accused
had given a promise to the victim to marry her and on the promise,
he had made her believe she is lawfully wedded to him and
committed rape on her and thereafter, he had also threatened her
not to disclose the same to anybody stating that he would commit
suicide, if the same was disclosed to anybody. It is the case of the
appellant that she believed him and kept quiet. Further, the
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respondent/accused had been delaying marriage stating that he
would marry her once his younger sister gets married and
thereafter, he had switched off his mobile phone. Since, the
respondent/accused was working as a Police Constable at Palakkad
in Kerala, the appellant had given a complaint to the Superintendent
of Police, Palakkad which was later referred to the All Woman Police
Station, Palakkad and later on the point of jurisdiction the case was
transferred to the file of the second respondent. He would submit
that the trial Court erred in holding that the term “misuse” which
was stated by the appellant in the first complaint would not amount
to a case of rape and that the trial Court had erred in taking into
consideration the minor inconsistencies in the evidence of the
witnesses and had acquitted the first respondent/accused which is
illegal. He would further submit that the trial Court failed to take
into consideration the fact that the delay in lodging the complaint
and the delay in medical examination is not due to the fault of the
appellant/ prosecutrix and it had occurred due to the prosecution on
account of the case being transferred from Kerala to Coimbatore.
Further, the trial Court erred in concluding that the evidence of the
victim/prosecutrix lacks credence. The trial Court failed to note that
the complaint is not an “Encyclopaedia” and that the trial Court
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failed to take into consideration the subsequent statements given by
the appellant victim/prosecutrix which has also been corroborated
by P.W.11/Nirmala who has spoken about the incident as narrated
by P.W.1./victim. The evidence of P.W.1 regarding incident that had
happened on 04.10.2013 is corroborated by the evidence of
P.W.2/mother of P.W.1 and further P.W.3 & P.W.4/their neighbours
have spoken about having seen the respondent /accused on
04.10.2013 near the residence of the appellant. It is their evidence
that when they had enquired him, he had told them that he was
going to marry the appellant and that they were in love with each
other. He would further submit that the trial Court failed to see to
that even if there had been a consent for sexual intercourse, the
consent had been given under misconception that the
respondent/accused would marry her at a later point of time. The
prosecution through the testimonies of the witnesses and through
documentary evidence had succeeded in establishing its case
beyond reasonable doubt, however, the trial judge without
considering the same had ventured to overanalyse the same and
basing reasoning on technicalities and surmises which are perverse
had wrongly acquitted the 1st respondent/accused, thereby
rendering the impugned judgment illegal which deserves to be set
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aside. In support of his contention, he would rely on the following
Judgements of the Hon'ble Apex Court;
1.Anurag Soni Vs. The State of
Chhattisgarh reported in (2019) 13 SCC 1
2. Karthi @ Karthick Vs. State Rep.
by Inspector of Police, Tamil Nadu reported
in (2013) 12 SCC 710
7.Per contra, Mr.Kingston Jerold, the learned counsel
appearing for the 1st respondent contended that the appeal is
against a well considered order of acquittal. The trial Court had
carefully analysed the evidence on record and rendered a reasoned
order finding the 1st respondent not guilty. There is nothing
perverse in the finding of the trial Judge. The trial Court has given
cogent reasons for disbelieving the testimonies of the prosecutrix
and her mother and also given reasons for not taking into
consideration the other evidence.
8.Learned counsel further submitted that the scope of
interference with an acquittal order is very much limited, an order of
acquittal can be set aside only if it is perverse. The perversity
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would emanate only if the trial Court has either ignored an
evidence, which was readily available on record, or has based its
reasoning on conjectures and surmises, or has misapplied the law.
In this case, the trial Judge having carefully examined the oral and
documentary evidence had rendered an order of acquittal which
needs no interference. The judgment is not a perverse one and it
cannot be disturbed lightly.
9. He further submitted that in this case, the trial Judge
had framed charges against the 1st respondent/accused for the
offence u/s.376, 417 and 493 I.P.C., the appellant/prosecutrix was
examined as P.W.1 and her mother was examined as P.W.2 to
prove charges of rape. Further the trial Court has also taken into
consideration the evidence of P.W.8 and P.W.9 who are the medical
experts. The alleged occurrence is said to have taken place on
04.10.2013 in the bedroom of the appellant's house when her
mother had gone out. The place of occurrence is a compounded
house consisting of several adjacent row houses and the occurrence
is stated to have taken place during the noon time. Though P.W.3
and P.W.4, the neighbours have been examined by the prosecution,
they have not spoken anything about P.W.1 informing them about
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the rape and they have just stated that they have seen the 1 st
respondent / accused near their house and that he had told them
that he is going to marry P.W.1. The evidence of P.W.3 and P.W.4
seems to be highly artificial since there was no necessity for the 1 st
respondent / accused to disclose anything to strangers. The 1 st
complaint which itself was with much delay had been given to the
Superintendent of Police on 21.12.2013 in which nothing had been
stated as if the 1st respondent /accused had committed sexual
intercourse with her on the promise of marrying her. Even in the
complaint/Ex.P1 it had been stated that the appellant and the 1 st
respondent fell in love and that he had assured her that he will
marry her after convincing his family members and that the
appellant had also stated that the 1 st respondent/accused's father,
mother and sister were against the marriage since she is a Tamilian
and he is a Malayalee and there was also caste problem between
the families and that the parents of the 1st respondent / accused
were not willing and accepting for the marriage. The appellant had
only stated that the 1st respondent had misused her and that since
her father had scolded her using filthy words, she had attempted to
commit suicide. No where in the complaint the appellant had stated
that the 1st respondent / accused had induced her on the false
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promise of marrying her and committed sexual intercourse with her.
Later after deliberation a subsequent complaint had been given by
the appellant on 26.12.2013 with exaggerated facts which was in
Malayalam and marked as Ex.P2. Even in that complaint, the
appellant had stated that they were in friendship with each other for
sometime and that the family members of the 1st respondent were
not happy about their relationship and created problem and that
there was also a caste problem between them and that the family of
the 1st respondent was not accepting the marriage because the
appellant belongs to Tamil Nadu and the 1st respondent belongs to
Kerala and they also belong to a different caste. Even in the
complaint dated 26.12.2013 nothing had been stated as if the 1st
respondent/accused induced the appellant on the false promise,
whereas an exaggerated version with improved allegations were
given during the recording of statement u/s.164 Cr.P.C. Even in the
complaint dated 21.12.2013 and 26.12.2013 the appellant had
stated that the family members of the 1st respondent / accused
were not convinced with their relationship and that she had stated
that the 1st respondent had informed her that he would marry her
only after convincing his father and mother and after his sister gets
married. The trial Judge, after analysing the materials and evidence
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on record finding that the evidence of P.W.1 and her mother PW2
was exaggerated, had acquitted the 1st respondent/ accused. Even
as per the complaint dated 21.12.2013, the complainant had only
made a request seeking to enquire the 1st respondent / accused to
see to that he marries her. Only at a later point of time the
appellant had stated about the physical relationship between them.
The trial Judge having seen the demeanour of the witness and
finding that there were inconsistencies and exaggerations in the
complaint and in the further evidence in Court during trial had
acquitted the 1st respondent / accused. The learned counsel for the
first respondent/accused further submitted that the trial judge who
had the benefit of watching demeanour of the witnesses is the best
judge to asses the credibility of evidence. The trial judge also
finding that the evidence of P.W.1 and P.W.2 lacked credence and
also taking into consideration the various self contradictory
statements of P.W.1 and contradictions between the evidence of
P.W.1 and her mother PW2 had rightly disbelieved the prosecution
story of rape/forceful intercourse. The trial Court after analysing
each and every material carefully has passed a reasoned order. The
trial Court is justified in concluding that there was no evidence for
cheating. Further it is the admission of P.W.1 that she and the
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accused were in deep love for 1½years. It is the further admission
that the marriage could not be materialised because the father of
the accused had told that he would commit suicide if the
1st respondent/accused marries the appellant and the trial Court has
also found that the prosecution has not let in any evidence to prove
that the 1st respondent / accused had the intention to cheat her
right from the inception of the relationship between them and that
he did not have any intention of marrying her right from the
beginning and that the promise was made only with the bad
intention of satisfying his lust.
10. The learned counsel untimately contended that this
appeal is against and well considered order of acquittal and this
Court has to take into consideration the legal principles regarding
appeal against acquittal. In support of his contention he relied on
the following decisions :-
(i) Rajesh Patel v. State of Jharkhand
reported in (2013) 3 SCC 791
(ii) Deelip Singh @ Dilip Kumar v. State of
Bihar reported in (2005) 1 SCC 88
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(iii) Deepak Gulati v. State of Haryana
reported in (2013) 7 SCC 675
(iv) Tilak Raj v. State of Himachal
Pradesh reported in (2016) 4 SCC 140
(v) Santhosh Prasad @ Santhosh Kumar
v. State of Bihar reported in (2020) 3 SCC 443
(vi) Pramod Suryabhan Pawar v. State of
Maharastra and another reported in (2019) 9 SCC
608
(vii) Maheshwar Tigga v. State of
Jharkhand reported in (2020) 10 SCC 108
(viii) Guru Dutt Pathak v. State of Uttar
Pradesh reported in 2021 SCC online SC 363
(ix) Sampat Babso Kale and another v.
State of Maharashtra reported in (2019) 4 SCC 739
(x) Anwar Ali and another v. State of
Himachal Pradesh reported in (2020) 10 SCC 166
11. Mrs.Saradha Devi, learned Government Advocate
(Crl.side) would submit that as per the prosecution the accused got
acquainted with the victim girl and that they were talking over
phone for some time and that on 04.10.2013, the accused had gone
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to the house of the appellant and when her mother had gone away
to buy fish, the accused had induced her with the promise to marry
her and by deception stating that he would marry her and making
her believe that she is his lawfully wedded wife had committed
sexual intercourse against her will, thereafter, he had refused to
marry her. Originally, the complaint dated 02.12.2013 was given at
Kerala and a FIR was registered by the Kerala Police and thereafter
finding that the offence was committed within the jurisdiction of
Tamil Nadu had transferred the case to the second respondent. The
case was investigated by the second respondent and the first
respondent was charged for the offence under Sections 417, 376
and 493 IPC. The trial Court had acquitted the first respondent.
She would further submit that the State/second respondent has not
preferred any appeal against the order of acquittal.
12. This is an appeal against acquittal by the trial Court.
The trial Court holding that the case of the prosecution has not been
proved had acquitted the accused while looking at the evidence on
record :-
PW1/Subsakthi the prosecutrix in her evidence
had deposed that she had completed M.Sc and that she was at
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home without going to any work and that one day during the month
of March 2012 she had gone to Aravind Hospital for eye treatment
and that the father of the accused had also come there for eye
treatment and both of them were allotted the same room after eye
surgery and since she underwent surgery she had not seen him.
Later after six months she had gone there for regular check up and
since it was crowded, the father of the accused who was diabetic,
went to canteen to take tiffin and had asked her to save his mobile
number and had requested her to call him when his turn comes and
she had called him on his mobile phone and helped him and after
that one day, the accused/Anu Ranjith had called her over phone
and proposed his love to her and that she too had accepted the
proposal and that both of them had been talking over phone for
some time and that both their parents came to know that they were
in love with each other. Her father had told that he wanted to meet
the family members of the accused and when she had told the
accused about the same for several times, he had told her that he
would meet them after his sister's marriage gets over and
thereafter, the accused had not called her father at all. Since, the
accused did not call her father, her father had informed that he had
seen some other bride groom for her, whereas she had informed
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him that she will marry the accused only and due to that there was
a problem in the family and because of the said problem they had
sent her to her grand mother's house at Coimbatore and asked her
to stay there and her mother also accompanied her. She had
intimated all those things to the accused. The accused had told her
that they could register the marriage after his sister's marriage and
she had compelled him to come and meet her father. Whileso, on
04.10.2013, the accused had come to her grand mother's house
and the neighbours have seen the accused. When they have
enquired whether he was the groom, he had told them that he
would marry her, after his younger sister gets married and told
them he had come to meet her father.
13. PW1 had further deposed that accused had come at
about 12.10hours on 04.10.2013 and told her that he is very
hungry and that he would take lunch and thereafter go and meet
her father. Her mother had gone to buy fish and at that time, the
accused had shown a packet of condom to her. She had told him
that it is not proper thing to do before marriage and had thrown the
condom packet through window. The accused had told her that he
wanted to talk with her a little bit and had bolted the door from
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inside and that there was a cot in the room and the accused had
pushed her on to the cot forcibly. When she had attempted to get
up, the accused had unzipped his pant and attempted to remove her
pant, she had resisted him and he had forcibly placed his private
part on her private part and began to press her breast. She had
pain on account of this and when she had tried to push the accused,
he caught hold of both the hands and lifted her tops and since she
raised alarm, he had increased the TV volume and kissed her on her
mouth. She had tried to push the accused to maximum possible
extent and she was unable to push him and that he hold on her
breast and laid down her and raped her and when she got up and
attempted to go away the accused also had anal sex with her and
since, it was paining she pushed the accused and cried. She had
thought of calling her mother over phone, whereas her mother had
left her phone in the house itself and that her mother had come
back after some time and knocked the door and that the accused
had told her not to disclose about the incident to her mother and
that threatened her saying that if she discloses it to her mother he
would not marry her and would commit suicide on the way back to
home.
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14. PW1 had further deposed that the accused had asked
her to wait for two days saying that he would bring his father and
that they could discuss. He left the house at 4.00pm in the evening
and till such time he did not allow her to speak to her mother and
told her that he would come back after two days with his family
members. Since, the accused had not come in two days she had
enquired him and he had informed that he had to go for physical
training and thereby he was unable to come. Meanwhile, two
months had gone and the accused had called her over phone on
29.11.2013 and informed her that despite his best efforts to
convince his parents they have not given their consent for the
marriage as she is a Tamil girl and he is Malayalee. When she had
questioned him whether it was not known to them, when they were
in love and was he not able to convince his parents, the accused
had told her that despite his best efforts to convince his parents
they are refusing to accept her and he would not be able to go
against their wishes and he had told that he is showering his
blessings on her and asked her to get married to some body else
and to live happily. He had further told her that he would be
punished for the mistake committed by him and saying so had
disconnected the phone and later switched off the phone and she
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was unable to contact him. She had further deposed that during the
first week of December 2013, she sent a complaint against the
accused to the Superintendent of Police, Palakad and after one week
she went to the Armed Reserve Camp situated at Muttukulangara,
the work place of the accused to meet him. She enquired at the
camp by showing the photos of the accused and she was informed
that the accused was working in some other camp. When the
officer in the camp had called the accused and questioned about the
love affair, he had denied the relationship and the officer had
advised her to go to the house of the accused and inform his
parents. When she was on the way to the house of the accused in
search of him, he had guided the Autorickshaw driver with regard to
the route to his house over mobile phone and when she reached his
house, she found that the accused and his family members had
deceived her and left the place. Once again on 21.12.2013, she
had gone to the office of the Superintendent of Police to give the
complaint and he had directed her to the All Women Police Station.
On the same day at 18.00hrs, the All Women Police summoned the
accused for enquiry and he along with his father had come to the
police station around 6.00pm and during enquiry the accused had
told that his father is not agreeing for the marriage and that he was
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unable to do anything. He had asked the police to enquire his
father, if required. The father of the accused is a retired Assistant
Commissioner of police and when the police had enquired him, he
had told the police that if the accused marries her, he would commit
suicide by hanging there itself. The police had informed her that
they would call her again after arranging an interpretor and asked
her to come back. On 26.12.2013, the police had called her and
when she had gone there, the police had recorded statement from
her and her mother. Whileso, on the previous day on 25.12.2013,
the accused had called her over phone and asked her not to lodge
any complaint and asked her to wait for six months and that by that
time his younger sister marriage will get over and that he would do
what ever she says and asked her to withdraw the complaint.
However, the police had registered the case based on the complaint
dated 26.12.2013.
15. She had further deposed that later the accused had
called her over phone and asked her whether she wants to sent him
to prison for 14years and said that he would commit suicide, if the
case is registered. Later, four friends of the father of the accused
had come to her house at Coimbatore and asked her to withdraw
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the case and told her that the accused had gone missing and that
only the father of the accused had been opposing the marriage and
that they would convince him to perform the marriage. The friends
of the accused had demanded 200 sovereigns of jewels. PW1 had
further deposed that she had told them that if they had asked it
earlier itself her father would have given that and asked them to
bring the accused for discussion and they had informed that the
whereabouts of the accused was not known and that they were
thinking they can settle the issue by paying some amount to her
and she informed them that she would not withdraw the case and
preferred the complaint. The complaint given by her on 02.12.2013
to the Superintendent of Police, Palakad was marked as Ex.P1. The
statement given by her on 26.12.2013 to the Palakad police which
was reduced into writing with the help of the interpretor one
Murukavel was marked as Ex.P2. Se had further deposed that it
was informed to her by Kerala police that the case was
subsequently, transferred to Coimbatore after five months and the
files pertaining to the case were transferred to the All Women Police
Station, Coimbatore East. The All Women Police Station,
Coimbatore had called her and further enquired her and subjected
her to medical examination and later produced her before the
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Judicial Magistrate for recording statement. She had also deposed
that she took photographs alongwith the first respondent/accused.
The statement recorded by the Judicial Magistrate was marked as
Ex.P3. The Photographs were marked as Exs.P4 to P9.
16. P.W.2 Soundaravalli is the mother of P.W.1 she had
deposed that her daughter Subasakthi underwent eye surgery in
Aravind eye hospital, Coimbatore in the year 2012 and the accused
got acquainted with her daughter during that time and that she was
also present there. Later in the year 2013, they shifted their
residence to Coimbatore itself; that in the interregnum period, the
accused had been talking with her daughter over phone, and he
used to come to Coimbatore, from Palakad, Kerala to meet her
daughter frequently, that the accused had told her that he was
working in the police department and that he was in love with her
daughter and that he promised to marry her daughter after the
marriage of his younger sister was over and had asked her to come
and meet his parents and convince them and had given his address
to them; Subsequently, the accused had come to their house once
and that when her daughter had asked him to come and talk with
her husband, the accused had come to their house on 4.10.2013,
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around 1.00 O’ clock in the afternoon, and that at about 1.30 p.m.
she had gone out to buy fish, and that as there were no fish shops
nearby on that day, and that she went to Singanallur by bus, and
that she booked a call taxi there itself, since the accused was about
to meet her husband at Gobichettipalayam, and that she returned
home at about 2.15 p.m. At that time the accused had telephoned
and spoken to his father, and by saying that he has to go to
Palakkad immediately and saying that he would meet her husband
some other day had left and that even after two days, no response
was received from the accused. When her daughter had contacted
him over phone, the accused had stated that since a sports training
is going on at Coonoor he would come and meet her husband later.
Further the accused was conversing with her daughter over phone
till 30th November 2013, and on that day there was wordy quarrel
between them, and when she asked her daughter as to what the
matter she had informed her that since she was a Tamil girl, the
family members of the accused were not giving concurrence for the
marriage and by asking her daughter not to talk to him further had
switched off his phone. She had further deposed that later a
complaint was lodged to the Superintendent of Police, Palakkad, and
that when she asked her daughter she had told that on 04.10.2013
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when she had gone out to purchase fish, the accused had raped her
forcibly and had told her that if she discloses it to her mother he
would commit suicide and that they visited the place called
Muttukulangara, where the accused was working and enquired, and
that the accused had called her daughter over phone and asked as
to why she disclosed the problem between the two houses and that
he lost his reputation and asked them to come to his home to solve
the issue there. Since, they did not know the way to his house, the
accused himself had guided the auto driver and that they went
there and stayed outside the accused’s house and at that time, the
accused had told that his father would come and discuss. They
came in two vehicles and asked them to follow, and after covering a
short distance they asked to send auto by paying money and asked
to get into the two wheeler. The auto driver refused to allow them
to go alone as it was not safe and followed them for some distance,
whereas they left somewhere in the two wheeler and later they also
switched off their mobile phones and after 10minutes a person had
called her in the mobile phone and advised them to return back to
their place saying that the matter will be settled within two days and
when she had enquired who he was he had told that he is Sukumar,
Sub Inspector of Police and friend of father of the accused and after
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two days he had called her over phone and told her that the family
of the accused is not agreeing for the marriage and she could
proceed legally. Thereafter, they had sent a complaint to the
Superintendent of police and that she had received the
acknowledgement and that there was no other information from
them. After two days she had gone to the office of the
Superintendent and they had directed her to the All Women police
station. The first respondent/accused and his father had come for
enquiry, the police conducted enquiry and since there was no
interpretor the police saying that it was 7.00pm had asked them to
come on some other day. Thereafter, on 26.12.2013, the police
had called her over phone and she along with her daughter had
gone to Palakad All women police station and they had enquired her
and her daughter narrated about the entire facts. When they were
returning home, the accused had called her daughter and asked her
to withdraw the complaint saying that he will loose his job. After
four days, four persons had come from the accused village saying
that they belong to the police and that the accused was found
missing and they had come in search of him and one of the person
had told her that whether she would be able to give 200soverigns
and to pay the marriage expenses and another person had told
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them that the father of the accused will not agree for the marriage,
since, they are Tamils and that the father of the accused was ready
to settle them. She had shouted at them and sent them back and
that she had also informed it to her husband. She had further
deposed that the case was later transferred to Punniyankulam police
station and that the Punniyankulam Police station had subjected her
to medical examination
17. P.W.3 Sulokshana, a neighbour of P.W.1 had deposed
that the accused used to visit the house owner Soundaravalli’s
house frequently to meet her daughter Subasakthi and that she
being a neighbour used to see him, that she had enquired
Subasakthi, that she had informed her that she is going to marry
him and that she had seen him lastly in that house on 04.10.2013
around 12.00 noon when he had come and that at that time
Soundaravalli P.W.2 and her daughter P.W.1 were present in their
house. Since the accused Anuranjith had asked for non veg food,
P.W.2 had gone outside for buying meat; and the accused and
P.W.1 were alone at home and that they had stayed in the house for
about 45minutes and that P.W.2 had returned after 45 minutes,
that she had enquired P.W.2 as to where she had gone; and she
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had replied that she had gone out to buy meat, that when she
enquired her, she had told that P.W.1 was going to marry the
accused; and she had enquired after 2 or 3 years, P.W.2 had
informed her that the accused had refused to marry P.W.1 and
thereafter she had lodged a complaint in the Kerala Police Station.
18. P.W.4 Arukkani neighbour of PW1 in her evidence had
deposed that the accused Anuranjith used to visit PW2's house
frequently in order to meet P.W.1 and that she had seen the
accused 2 or 3 times in the house of P.W.2 and that the accused
and P.W.1 were moving closely with each other and they were in
love with each other; that they had told that they are going to get
married, that the accused had told her that he is going to marry
P.W.1 after his younger sister gets married and that she had lastly
seen the accused in the house of P.W.1 on the 04.10.2013 at about
12.00 noon and that on that day the accused alone had come there.
At that time, P.W.2 and P.W.1 were present in P.W.2’s house and
that P.W.2 had gone outside to buy meat and that as soon as P.W.2
had gone outside, the accused and P.W.1 had gone inside the house
and that both of them had come outside only after about 1/2 an
hour. Then P.W.2 had returned; that when she had enquired her as
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to why she was late, P.W.2 had told her that there was no non-veg
shops in that locality and she had gone to Singanallur to buy non-
veg and that P.W.1 had later told her that the accused had raped
her during his last visit after having promised her that he would
marry her. Later the accused had refused to marry her, and P.W.1,
Subasakthi had lodged a complaint with Kerala police.
19. P.W.5 Ambrose in his evidence has deposed that the
police had inspected the house of P.W.2 on 09.05.2014 at 4.00
hours in the evening and had prepared a rough sketch; that the
signature found in the observation mahazar which is shown to him
belongs to him; that one Ramachandran had affixed his signature
along with him, and that observation mahazar is Ex.P.10.
20. P.W.6, Ramachandran in his evidence had deposed
that the police had come to the house of P.W.1, which is situated
nearby to his house on 09.05.2014 between 2.00 hours and 4.00
hours in the afternoon, and after having observed P.W.1’s house,
had prepared the sketch and mahazar, and that he and one
Ambrose, who is residing nearby to his house, had signed, and that
the said observation mahazar has been marked as Ex.P.10
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21. P.W.7, V.S.Muralidharan, S.I. of Police in his evidence
had deposed that on the basis of receipt of a petition of
Selvi.Subasakthi from Palakkad District Police station on
01.01.2014, a case was registered the respondent station Crime
No.5/2014, U/s 376 of IPC and FIR was prepared and the said FIR is
Ex.P.11.
22. P.W.8, Doctor P.Pandieswaran who conducted medical
examination of the accused in his evidence had deposed that on
17.06.2014 the police have produced the accused, before him with
a requisition to conduct masculinity/potency test, in connection with
the case in crime No.16/2014, on the file of East All Women Police
Station and that he had examined him, and in his report, he had
opined that there are no grounds to state that the accused is
impotent and the certificate issued by him in this regard is Ex.P.12.
23. P.W.9, Dr.Nandhini who conducted the medical
examination of P.W.1 deposed that on 24.05.2014 at 01.20pm, the
police had brought a woman named Subasakthi, aged about 27
years, in respect of the case in Crime No. 16/2014, on the file of All
Women Police Station, Coimbatore East, for medical examination;
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that when she examined her, the hymen was not present and that
her genitalia easily admitted one finger and that she had collected
the vaginal fluid and pubic hair and had sent it for chemical analysis
and that the carbon copy of the Accident Register issued by her was
marked as Ex.P.13. Since it was not clear, the Court had asked for a
clear report and the medical certificate issued by her, containing the
same details was marked as Ex.P.14 and that the requisition letter
received from the court was marked as Ex.P.15. She had further
deposed that since the victim was brought seven months after the
occurrence, there was no chance to find out the presence of semen
in the vaginal fluids and public hair.
24. P.W.10, Mr.Venkateshwaran, who has been working as
the Scientific Officer at Regional Forensic Science Laboratory,
Coimbatore, had deposed that, on 26.05.2014, he had received the
requisition letter dated 21.05.2014 from the Residential Medical
Officer, Coimbatore Medical College Hospital, and along with that
letter, he had received the vaginal fluid and pubic hair which were
collected during the medical examination of the girl Subasakthi in
connection with Cr.No.16/14, on the file of the All Women Police
Station, East, and had analysed the same, and the chemical analysis
report, issued by him is Ex.P.16.
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25. PW11/Mrs.Nirmala, Inspector of Police, All Women
Police Station, Palakad had deposed that on 21.12.2013, PW1
lodged complaint to the Deputy Superintendent of Police, Palakad
and that the complaint was forwarded to her. She had further
deposed that PW1 had requested her to see to that she gets
married to the accused. She had further deposed that thereafter
PW1 had came to the police station on 26.12.2013 and that she
recorded statement of PW1 with the help of a Tamil
teacher/Murukavel. In the complaint PW1 had stated about her
relationship with the first respondent/accused and he having
committed sexual intercourse with him on 04.10.2013 at 12.30pm
on the promise of marriage, she had further deposed that on
27.12.2013 she had sent her enquiry details in the form of report to
the District Superintendent of Police, Palakad informing to take
appropriate legal action against the first respondent/accused. The
report sent by her is marked as Ex.P7.
26. PW12 – Tmt.Renuka Devi, District Munsif in her
evidence had deposed that, while she was serving as the Judicial
Magistrate No.I, Coimbatore, she had recorded the statement of the
witness Subasakthi/PW1 under Section 164 CrPC on 26.04.2014, in
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connection with the case registered in Cr.No.16/2014 on the file of
the Coimbatore All Women Police Station East and that she had
submitted the recorded statement to the Additional Mahile Court on
30.05.2014 and that the proceeding file, which contains the
aforesaid Subsakthi's statement is Ex.P18.
27. PW13 – Tmt.Kalaiarasi, the Inspector of Police, in her
evidence had deposed that she had received the case file in respect
of the case registered in the Palacode Town Police Station in
Cr.No.5/14, under Section 376 IPC, which was transferred to her on
the point of jurisdiction was received through post on 09.05.2014 at
around 3.00hours vide RC.No.G1/17958/304/14, dated 02.05.2014
and that as per the direction, she had registered the FIR Ex.P19
u/s.276 IPC in Cr.No.16/2014 on the file of the Coimbatore District
East All Women Police Station, and had taken up the investigation in
the case and had gone to the place of occurrence at about 4.00pm
on the same date, and had prepared the observation mahazar and
rough sketch/Ex.P20 in the presence of the witnesses Subasakthi,
Soundaravalli, Vijayabharathi, Sulochana, Arukani, Amburose and
Ramachandran and recorded their statement and finding that the
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occurrence in this case to be true, had gone in search of the
accused. Since, the accused in this case is a resident in the district
of Kerala she had after receiving the passport from the
Superintendent of Police, Crime Records Bureau, Coimbatore city
had gone to his residence and his workplace and since he was not
available had issued instructions to give information to find out the
accused. Later she had enquired Thiru.Muralidharan, SI of Police,
Palakkad Town Police station who had registered the FIR based on
the complaint and Tmt.Nirmala. Inspector of Police of the Palakkad
Vanithasel Police Station, on 17.05.2014 and recorded their
statements. Later gave a request to the Judge, Additional Mahila
Court for conducting medical examination on the victim and on the
same day, a requisition letter was given for obtaining the statement
of the victim under Section 164 Cr.PC and as per the order issued
by the Judge, Additional Mahila Court, Coimbatore on 20.05.2004,
PW1/victim was sent to the Coimbatore Government Medical College
Hospital for medical examination, through Tmt.Muthulakshmi-
Grade-I Women Police Constable 806, and was produced before the
Doctor and after completion of medical examination, the evidences
gathered from the victim during the medical examination were
handed over to the Regional Forensic Science Laboratory,
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Coimbatore and after enquiring the woman police constable, who
attended the duty, recorded her statement. The accused, in this
case, had obtained anticipatory bail from the Court on 22.05.2014
and a requisition was given to the Judge, Additional Mahila Court for
conducting medical examination for the accused and as per the
summons received from the Judicial Magistrate No.I, Coimbatore on
26.05.2014, the victim girl was produced before the Judicial
Magistrate and her further statement was recorded under Section
164 Cr.PC on 17.06.2014. As per the Court order, the accused was
sent through Pratap Chandiran-Grade I Police constable 700,
Singanallur Police Station, for medical examination to the
Coimbatore Government Medical College Hospital and after
completion of the medical examination, the evidences which were
collected during the medical examination were handed over to the
Regional Forensic Science Laboratory, Coimbatore. Thereafter, she
enquired the police constable and recorded his statement. The
requisition letter, which was sent from the Additional Mahila Court,
Coimbatore to the Coimbatore Government Medical College Hospital
for conducting medical examination on the accused, was marked as
Ex.P21.
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28. PW14 – Tmt.Priyamalini, the Inspector of Police, had
deposed that on 04.07.2014, she took up the case in Cr.No.16/2014
for offence u/s.376 IPC for further investigation and that she
recorded further statement of PW1 and that on 20.01.2015, she
enquired the earlier Inspector of Police, Tmt.Nirmala and recorded
her statement and thereafter went to Palakkad Town North Police
Station and enquired Sub Inspector of Police Muralidaran and
recorded his statement and thereafter, on 13.12.2015 had
examined Dr.Nandhini who had treated and given the medical
report for PW1/victim and examined her and recorded her
statement and thereafter enquired Dr.Pandeeswaran who had
examined the accused and obtained the medical certificate.
Thereafter, she had examined Grade-I Police constable 806
Tmt.Muthulakshmi and Grade-I Police Constable 700 namely Pratap
Chandiran and recorded their statements and on 23.01.2015,
examined Thiru.Venkateshwaran, Scientific Officer in Forensic
Department and 04.02.2015 completed the investigation and after
obtaining the opinion from the Deputy Director filed charge sheet
against the accused for the offence under Section 417, 376 and 493
IPC.
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29. The trial Court after analysing the materials and the
evidences on record, finding that the prosecution has not proved the
case beyond reasonable doubt had acquitted the first
respondent/accused.
30. At the outset, this is an appeal against acquittal and
before venturing further, this Court is reminded itself of the law
regarding the scope and the principles regarding appeal against
acquittal as laid down by the Hon'ble Apex Court in its various
judgments.
31. In Guru Dutt Pathak v. State of Uttar Pradesh
reported in 2021 SCC online SC 363 the Hon'ble Apex Court has
held that :-
“24.In the case of Babu v. State of Kerala
(2010) 9 SCC 189, this Court has stated the
principles to be followed in an appeal against acquittal
under Section 378 Cr.P.C. In paragraphs 12 to 19, it
is observed and held as under:
“12. This Court time and again has laid
down the guidelines for the High Court to interfere
with the judgment and order of acquittal passed by
the trial court. The appellate court should not
ordinarily set aside a judgment of acquittal in a case
where two views are possible, though the view of
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the appellate court may be the more probable one.
While dealing with a judgment of acquittal, the
appellate court has to consider the entire evidence
on record, so as to arrive at a finding as to whether
the views of the trial court were perverse or
otherwise unsustainable. The appellate court is
entitled to consider whether in arriving at a finding
of fact, the trial court had failed to take into
consideration admissible evidence and/or had taken
into consideration the evidence brought on record
contrary to law. Similarly, wrong placing of burden
of proof may also be a subject-matter of scrutiny by
the appellate court. (Vide Balak Ram v. State of
U.P. (1975) 3 SCC 219, Shambhoo Missir v. State
of Bihar (1990) 4 SCC 17, Shailendra
Pratap v. State of U.P. (2003) 1 SCC 761, Narendra
Singh v. State of M.P. (2004) 10 SCC 699, Budh
Singh v. State of U.P. (2006) 9 SCC 731, State of
U.P. v. Ram Veer Singh (2007) 13 SCC 102, S.
Rama Krishna v. S. Rami Reddy (2008) 5 SCC
535, Arulvelu v. State (2009) 10 SCC 206, Perla
Somasekhara Reddy v. State of A.P. (2009) 16 SCC
98 and Ram Singh v. State of H.P. (2010) 2 SCC
445)
13. In Sheo Swarup v. King Emperor AIR
1934 PC 227, the Privy Council observed as under :
(IA p. 404)
“… the High Court should and will always give
proper weight and consideration to such matters as
(1) the views of the trial Judge as to the credibility
of the witnesses; (2) the presumption of innocence
in favour of the accused, a presumption certainly
not weakened by the fact that he has been
acquitted at his trial; (3) the right of the accused to
the benefit of any doubt; and (4) the slowness of an
appellate court in disturbing a finding of fact arrived
at by a Judge who had the advantage of seeing the
witnesses.”
14. The aforesaid principle of law has
consistently been followed by this Court.
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(See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir
Singh v. State of Punjab AIR 1957 SC 216, M.G.
Agarwal v. State of Maharashtra AIR 1963 SC
200, Khedu Mohton v. State of Bihar (1970) 2 SCC
450, Sambasivan v. State of Kerala (1998) 5 SCC
412, Bhagwan Singh v. State of M.P. (2002) 4 SCC
85 and State of Goa v. Sanjay Thakran (2007) 3
SCC 755)
15. In Chandrappa v. State of
Karnataka (2007) 4 SCC 415, this Court reiterated
the legal position as under : (SCC p. 432, para 42)
“(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of
such power and an appellate court on the evidence
before it may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as, ‘substantial and
compelling reasons’, ‘good and sufficient grounds’,
‘very strong circumstances’, ‘distorted conclusions’,
‘glaring mistakes’, etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in
the nature of ‘flourishes of language’ to emphasise
the reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind
that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence
that every person shall be presumed to be innocent
unless he is proved guilty by a competent court of
law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is
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further reinforced, reaffirmed and strengthened by
the trial court.
(5) If two reasonable conclusions are possible on
the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal
recorded by the trial court.”
16. In Ghurey Lal v. State of U.P. (2008)
10 SCC 450, the Apex Court reiterated the said
view, observing that the appellate court in dealing
with the cases in which the trial courts have
acquitted the accused, should bear in mind that the
trial court's acquittal bolsters the presumption that
he is innocent. The appellate court must give due
weight and consideration to the decision of the trial
court as the trial court had the distinct advantage of
watching the demeanour of the witnesses, and was
in a better position to evaluate the credibility of the
witnesses.
17. In State of Rajasthan v. Naresh (2009)
9 SCC 368, the Court again examined the earlier
judgments of the Apex Court and laid down that :
(SCC p. 374, para 20)
“20. … an order of acquittal should not be lightly
interfered with even if the court believes that there
is some evidence pointing out the finger towards
the accused.”
18. In State of U.P. v. Banne (2009) 4 SCC
271, this Court gave certain illustrative
circumstances in which the Court would be justified
in interfering with a judgment of acquittal by the
High Court. The circumstances include : (SCC p.
286, para 28)
“(i) The High Court's decision is based on totally
erroneous view of law by ignoring the settled legal
position;
(ii) The High Court's conclusions are contrary to
evidence and documents on record;
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(iii) The entire approach of the High Court in dealing
with the evidence was patently illegal leading to
grave miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust
and unreasonable based on erroneous law and facts
on the record of the case;
(v.) This Court must always give proper weight and
consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in
interfering with a case when both the Sessions
Court and the High Court have recorded an order of
acquittal.”
A similar view has been reiterated by this Court
in Dhanapal v. State (2009) 10 SCC 401.
19. Thus, the law on the issue can be
summarised to the effect that in exceptional cases
where there are compelling circumstances, and the
judgment under appeal is found to be perverse, the
appellate court can interfere with the order of
acquittal. The appellate court should bear in mind
the presumption of innocence of the accused and
further that the trial court's acquittal bolsters the
presumption of his innocence. Interference in a
routine manner where the other view is possible
should be avoided, unless there are good reasons
for interference.”
(emphasis supplied)
25. When the findings of fact recorded by a
court can be held to be perverse has been dealt with
and considered in paragraph 20 of the aforesaid
decision, which reads as under:
“20. The findings of fact recorded by a
court can be held to be perverse if the findings
have been arrived at by ignoring or excluding
relevant material or by taking into consideration
irrelevant/inadmissible material. The finding may
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also be said to be perverse if it is “against the
weight of evidence”, or if the finding so
outrageously defies logic as to suffer from the vice
of irrationality. (Vide Rajinder Kumar
Kindra v. Delhi Admn (1984) 4 SCC 635, Excise and
Taxation Officer-cum-Assessing Authority v. Gopi
Nath & Sons 1992 Supp (2) SCC 312, Triveni
Rubber & Plastics v. CCE 1994 Supp (3) SCC
665, Gaya Din v. Hanuman Prasad (2001) 1 SCC
501, Aruvelu v. State (2009) 10 SCC
206 and Gamini Bala Koteswara Rao v. State of
A.P. (2009) 10 SCC 636).”
(emphasis supplied)”.
32. Further the Apex Court in Sampat Babso Kale v.
State of Maharashtra reported in (2019) 4 SCC 739 has laid
down the principles with regard to the powers of an appellate Court
in an appeal against an acquittal order.
“8. With regard to the powers of an appellate
court in an appeal against acquittal, the law is well
established that the presumption of innocence which is
attached to every accused person gets strengthened
when such an accused is acquitted by the trial court
and the High Court should not lightly interfere with the
decision of the trial court which has recorded the
evidence and observed the demeanour of witnesses.
This Court in Chandrappa v. State of
Karnataka [(2007) 4 SCC 415, laid down the following
principles : (SCC p. 432, para 42)
“42. From the above decisions, in our considered view,
the following general principles regarding powers of the
appellate court while dealing with an appeal against an
order of acquittal emerge:
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(1) An appellate court has full power to
review, reappreciate and reconsider the evidence upon
which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973
puts no limitation, restriction or condition on exercise
of such power and an appellate court on the evidence
before it may reach its own conclusion, both on
questions of fact and of law.
(3) Various expressions, such as, “substantial
and compelling reasons”, “good and sufficient
grounds”, “very strong circumstances”, “distorted
conclusions”, “glaring mistakes”, etc. are not intended
to curtail extensive powers of an appellate court in an
appeal against acquittal. Such phraseologies are more
in the nature of “flourishes of language” to emphasise
the reluctance of an appellate court to interfere with
acquittal than to curtail the power of the court to
review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in
mind that in case of acquittal, there is double
presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the
fundamental principle of criminal jurisprudence that
every person shall be presumed to be innocent unless
he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the
presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible
on the basis of the evidence on record, the appellate
court should not disturb the finding of acquittal
recorded by the trial court.”
33. The above principles have recently been reiterated by
the Hon'ble Supreme Court in the case of Anwar Ali v. State of
Himachal Pradesh reported in (2020) 10 SCC 166. As discussed
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above, this Court while examining the legality or illegality of
judgment of acquittal has to keep in mind the above settled
principles of criminal jurisprudence.
34. Further before embarking to analyse the evidence of
witnesses, this Court deems it fit to refer to the judgments relied on
by the both counsels with regard to the offences of cheating, rape
and cohabitation or sexual intercourse by a man deceitfully inducing
a belief of lawful marriage.
35. In Anurag Soni Vs. The State of Chhattisgarh
reported in (2019) 13 SCC 1 referred to by the counsel for the
appellant, the Hon'ble Apex Court has held that if it is proved that
from the very inception, promise given by the appellant accused to
marry the prosecutrix was a false promise and from the very
beginning there was no intention of accused to marry the
prosecutrix, the consent of the prosecutrix can be said to be a
consent on misconception of fact as per Section 90 IPC and held
that the accused can be convicted.
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36. In the next case referred to by the Counsel for the
appellant in Karthi @ Karthick Vs. State Rep. by Inspector of
Police, Tamil Nadu reported in (2013) 12 SCC 710 the Hon'ble
Apex Court has held that obtaining consent for having sex by
exercising deceit (i.e,) false promise of marriage cannot be
legitimate defence to exculpate accused.
37. In respect of the cases referred to by the learned
counsel for the first respondent/accused.
(i) In Rajesh Patel v. State of Jharkhand reported in
(2013) 3 SCC 791 – the Hon'ble Apex Court considering the
evidence of the prosecutrix to be unnatural, inconsistent and
improbable and having found that there is no proper explanation for
the delay in lodging the FIR had acquitted the accused, charges for
the offence under rape granting benefit of doubt.
(ii)In Deelip Singh @ Dilip Kumar v. State of Bihar
reported in (2005) 1 SCC 88 it is held as follows :-
“12. The next question is whether the appellant had
sexual intercourse with the victim girl against her will (vide first
clause of Section 375). The expression “against the will” seems
to connote that the offending act was done despite resistance
and opposition of the woman. On this aspect, the trial court did
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believe the version of the informant-victim without much of
discussion. In reaching this factual finding, the trial court failed
to analyse and evaluate the evidence of PW 12, the victim girl.
The High Court merely affirmed the trial court's finding on this
point. We should, therefore, scrutinise her evidence and
examine whether it would, beyond reasonable doubt, lead to
the conclusion of the accused having had sexual contact against
her will. Though in the FIR, the version of forcible sexual
intercourse has not been put forward, in the deposition before
the court, PW 12 tried to build up this plea. According to PW 12,
the first act of rape took place in the wheat field of her father.
This is how she described the incident:
“In the field, once getting a chance, Dilip Singh
forcibly raped me. Dilip Singh told, ‘you marry me’, when I was
weeping. He said weeping is useless and we shall marry. He
promised me of marriage and raped me several times.”
13. She then stated that after she became pregnant,
she revealed to her mother about the rape. Later on, the
accused became ready to marry her but his father and others
took him away from the village. She also stated that the
accused time and again told her that they will have a “court
marriage” (means, registered marriage). In substance, what
she deposed was that the first sexual intercourse took place
against her will, though she became a consenting party later on.
The first thing to be noticed is that in the report which she
admittedly gave to the police, this version was not given by her
and she did not complain of forcible rape. That apart, the
version of rape in the wheat field seems to be highly doubtful
when tested in the light of her statements in the cross-
examination. She stated in para 14 that
“one day, while talking, he pulled me down and
forcibly raped me. This incident occurred at 12.00 in the night”.
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That means, according to her version, the first incident of rape
took place on the wheat field at 12.00 in the midnight. It is
highly doubtful whether they would go to the wheat fields at
that hour. Moreover, in cross-examination, she makes a further
improvement by stating that at the time of first incident of rape
at midnight, when she started shouting, the accused gagged
her mouth. One more thing which affects the credibility of her
version is her statement in the cross-examination that when the
accused kept on making gestures, she went to the house of the
accused and lodged her protest with his bhabhi. It is most
unlikely that such unwilling person will go to a secluded place in
the company of the accused at an odd time in the night and
take the risk of being sexually assaulted. In any case, if the
rape was committed by the accused much against her will, she
would not have volunteered to submit to his wish subsequent to
the alleged first incident of rape. She admitted that the accused
used to talk to her for hours together and that was within the
knowledge of her parents and brother. This statement also casts
an element of doubt on her version that she was subjected to
sexual intercourse in spite of her resistance. Above all, the
version given by her in the court is at variance with the version
set out in the FIR. As already noticed, she categorically stated in
the first information report that she “surrendered before him” in
view of his repeated promises to marry. In short, her version
about the first incident of rape bristles with improbabilities,
improvements and exaggerations. It is a different matter that
she became a consenting party under the impact of his promise
to marry her. That aspect, we will examine later. But, what we
would like to point out at this juncture is, it is not safe to lend
credence to the version of PW 12 that she was subjected to rape
against her will in the first instance even before the appellant
held out the promise to marry. We cannot, therefore, uphold the
finding of the trial court that the girl was raped forcibly on the
first occasion and that the talk of marriage emerged only later.
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The finding of the trial court in this respect is wholly
unsustainable.
35. The remaining question is whether on the basis
of the evidence on record, it is reasonably possible to hold that
the accused with the fraudulent intention of inducing her to
sexual intercourse, made a false promise to marry. We have no
doubt that the accused did hold out the promise to marry her
and that was the predominant reason for the victim girl to agree
to the sexual intimacy with him. PW 12 was also too keen to
marry him as she said so specifically. But we find no evidence
which gives rise to an inference beyond reasonable doubt that
the accused had no intention to marry her at all from the
inception and that the promise he made was false to his
knowledge. No circumstances emerging from the prosecution
evidence establish this fact. On the other hand, the statement
of PW 12 that “later on”, the accused became ready to marry
her but his father and others took him away from the village
would indicate that the accused might have been prompted by a
genuine intention to marry which did not materialise on account
of the pressure exerted by his family elders. It seems to be a
case of breach of promise to marry rather than a case of false
promise to marry. On this aspect also, the observations of this
Court in Uday case [(2003) 4 SCC 46 : 2003 SCC (Cri) 775 :
(2003) 2 Scale 329] at para 24 come to the aid of the
appellant.
36. We reach the ultimate conclusion that the
findings of the trial court as affirmed by the High Court are
either perverse or vitiated by non-consideration of material
evidence and relevant factors emerging from the prosecution
evidence. We cannot, therefore, sustain the conviction.
37. In the result, the conviction and sentence is set
aside and the appeal is allowed.”
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(iii) In Deepak Gulati v. State of Haryana reported in
(2013) 7 SCC 675 it is held as follows :-
“24. Hence, it is evident that there must be
adequate evidence to show that at the relevant time i.e. at the
initial stage itself, the accused had no intention whatsoever, of
keeping his promise to marry the victim. There may, of course,
be circumstances, when a person having the best of intentions
is unable to marry the victim owing to various unavoidable
circumstances. The “failure to keep a promise made with
respect to a future uncertain date, due to reasons that are not
very clear from the evidence available, does not always amount
to misconception of fact. In order to come within the meaning of
the term “misconception of fact”, the fact must have an
immediate relevance”. Section 90 IPC cannot be called into aid
in such a situation, to pardon the act of a girl in entirety, and
fasten criminal liability on the other, unless the court is assured
of the fact that from the very beginning, the accused had never
really intended to marry her.”
(iv) In Tilak Raj v. State of Himachal Pradesh reported
in (2016) 4 SCC 140 the Hon'ble Apex Court has held that for
conviction of an offence under Section 417 IPC, the prosecution has
to prove the charge under Section 415 IPC and it is important that
all the necessary ingredients constituting the offence under the said
Section must be proved beyond all reasonable doubt. The
prosecution has to prove that the petitioner had the intention to
cheat right from the inception of the relationship and that he never
had the intention of marrying the prosecutrix.
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(v) In Santhosh Prasad @ Santhosh Kumar v. State of
Bihar reported in (2020) 3 SCC 443 the Hon'ble Apex Court
finding that the FSL report was not supporting the prosecution case
and that variations were found in the prosecutrix version about
giving complaint had held that the prosecutrix has failed to pass the
test of sterling witnesses and acquitted the accused.
(vi) In Pramod Suryabhan Pawar v. State of
Maharastra and another reported in (2019) 9 SCC 608 it is held
as follows
“14. In the present case, the “misconception of fact”
alleged by the complainant is the appellant's promise to marry
her. Specifically in the context of a promise to marry, this Court
has observed that there is a distinction between a false promise
given on the understanding by the maker that it will be broken,
and the breach of a promise which is made in good faith but
subsequently not fulfilled. In Anurag Soni v. State of
Chhattisgarh [Anurag Soni v. State of Chhattisgarh, (2019) 13
SCC 1 : 2019 SCC OnLine SC 509] , this Court held: (SCC para
12)
“12. The sum and substance of the aforesaid
decisions would be that if it is established and proved that from
the inception the accused who gave the promise to the
prosecutrix to marry, did not have any intention to marry and
the prosecutrix gave the consent for sexual intercourse on such
an assurance by the accused that he would marry her, such a
consent can be said to be a consent obtained on a
misconception of fact as per Section 90 IPC and, in such a case,
such a consent would not excuse the offender and such an
offender can be said to have committed the rape as defined
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under Sections 375 IPC and can be convicted for the offence
under Section 376 IPC.”
Similar observations were made by this Court in Deepak
Gulati v. State of Haryana [Deepak Gulati v. State of Haryana,
(2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] (Deepak Gulati):
(SCC p. 682, para 21)
“21. … There is a distinction between the mere
breach of a promise, and not fulfilling a false promise. Thus, the
court must examine whether there was made, at an early stage
a false promise of marriage by the accused;”
18. To summarise the legal position that emerges
from the above cases, the “consent” of a woman with respect to
Section 375 must involve an active and reasoned deliberation
towards the proposed act. To establish whether the “consent”
was vitiated by a “misconception of fact” arising out of a
promise to marry, two propositions must be established. The
promise of marriage must have been a false promise, given in
bad faith and with no intention of being adhered to at the time
it was given. The false promise itself must be of immediate
relevance, or bear a direct nexus to the woman's decision to
engage in the sexual act.”
(vii) In Maheshwar Tigga v. State of Jharkhand
reported in (2020) 10 SCC 108 it is held as follows :-
15. In Uday [Uday v. State of Karnataka, (2003) 4
SCC 46 : 2003 SCC (Cri) 775] , the appellant and the
prosecutrix resided in the same neighbourhood. As they
belonged to different castes, a matrimonial relationship could
not fructify even while physical relations continued between
them on the understanding and assurance of marriage. This
Court observed as follows: (SCC pp. 56-57, para 21)
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“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 this view, but we must add that
there is no straitjacket 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.”
16. The appellant, before the High Court
[Maheshwar Tigga v. State of Jharkhand, 2018 SCC OnLine
Jhar 1731] , relied upon Kaini Rajan [Kaini Rajan v. State of
Kerala, (2013) 9 SCC 113 : (2013) 3 SCC (Cri) 858] in his
defence. The facts were akin to the present case. The
physical relationship between the parties was established on
the foundation of a promise to marry. This Court set aside
the conviction under Section 376 IPC also noticing K.P.
Thimmappa Gowda v. State of Karnataka [K.P. Thimmappa
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Gowda v. State of Karnataka, (2011) 14 SCC 475 : (2013) 3
SCC (Cri) 464] . Unfortunately, the High Court did not even
consider it necessary to deal with the same much less
distinguish it, if it was possible. It is indeed unfortunate that
despite a judicial precedent of a superior court having been
cited, the High Court after mere recitation of the facts and
the respective arguments, cryptically in one paragraph
opined that in the nature of the evidence, the letters, the
photograph of the appellant with the prosecutrix and the
statement of the appellant under Section 313 CrPC, his
conviction and sentence required no interference.
17. This Court recently in Dhruvaram Murlidhar
Sonar v. State of Maharashtra [Dhruvaram Murlidhar
Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020)
3 SCC (Cri) 672 : AIR 2019 SC 327] and in Pramod
Suryabhan Pawar v. State of Maharashtra [Pramod
Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC
608 : (2019) 3 SCC (Cri) 903] arising out of an application
under Section 482 CrPC in similar circumstances where the
relationship originated in a love affair, developed over a
period of time accompanied by physical relations,
consensual in nature, but the marriage could not fructify
because the parties belonged to different castes and
communities, quashed the proceedings.
20. We have no hesitation in concluding that the
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consent of the prosecutrix was but a conscious and
deliberated choice, as distinct from an involuntary action or
denial and which opportunity was available to her, because
of her deep-seated love for the appellant leading her to
willingly permit him liberties with her body, which according
to normal human behaviour are permitted only to a person
with whom one is deeply in love. The observations in this
regard in Uday [Uday v. State of Karnataka, (2003) 4 SCC
46 : 2003 SCC (Cri) 775] are considered relevant: (SCC p.
58, para 25)
“25. … It usually happens in such cases, when two
young persons are madly in love, that they promise to
each other several times that come what may, they will
get married. As stated by the prosecutrix the appellant
also made such a promise on more than one occasion.
In such circumstances the promise loses all
significance, particularly when they are overcome with
emotions and passion and find themselves in situations
and circumstances where they, in a weak moment,
succumb to the temptation of having sexual
relationship. This is what appears to have happened in
this case as well, and the prosecutrix willingly
consented to having sexual intercourse with the
appellant with whom she was deeply in love, not
because he promised to marry her, but because she
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also desired it. In these circumstances it would be very
difficult to impute to the appellant knowledge that the
prosecutrix had consented in consequence of a
misconception of fact arising from his promise. In any
event, it was not possible for the appellant to know
what was in the mind of the prosecutrix when she
consented, because there were more reasons than one
for her to consent.”
38. Bearing the above principles in mind, this Court has to
independently consider whether the prosecution has proved its case
beyond all reasonable doubt and whether the judgment of the trial
Court suffers from any illegality or perversity and whether the trial
Court is justified in acquitting the accused.
39. It is the case of PW1 that she got acquainted with the
first respondent/accused after meeting him in a hospital and that
they shared their numbers and they were in touch with each other
over phone and they got deeply in love with each other. The
appellant/PW1 had asked him to contact her father, the respondent
accused had told her that he would meet her father after the
marriage of his younger sister. The prosecutrix had repeatedly
asked him to contact her father and she has also informed her
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father that she is going to marry the first respondent/accused only.
However, since he did not contact her father, her father had decided
to find out another bride groom for her, due to which there was
quarrel between her and her father. She was adamant and that she
had told her father that she will marry the first respondent only and
there was continuous problem in the house and she was sent to her
grand mother's house at Coimbatore and that she had intimated the
same to the first respondent/accused, for which he had told her that
he would marry her after his sister's marriage. Whileso on
04.10.2013, the first respondent accused had come to her house
and that she had introduced him to her neighbours and thereafter
he wanted to have food and PW2 her mother had gone out to buy
fish. It is her further evidence that the first respondent/accused
had shown her a condom packet and that she had thrown it out of
the window and that he had pushed her in the cot in her room and
removed her dress and had sexual intercourse against her will and
also had unnatural sex with her and that she suffered pain and after
sometime her mother had come and knocked the door and she
opened the door. It is further evidence that the first
respondent/accused had told that not to disclose it to her mother
and threatened her that if she discloses he would commit suicide on
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the way back to home and asked her to wait for two days stating
that he would come along with his family members and meet her
father. However, he did not come back and contacted her and her
father got angry with her and even thereafter he continued to speak
with her over phone and however he did not come and meet her
father. On 29.11.2013, the first respondent/accused is stated to
have told her that despite his request to allow him to marry the
appellant, the family members have not agreed saying that she is a
Tamil girl and he is Malayali and that they are against the marriage.
He had asked her to forgot him and marry some one else and that
he had switched off his mobile phone.
40. It is the further case of the appellant that she sent a
complaint to the Superintendent of Police, Palakad during December
2013. The complaint was marked as Ex.P1. In the complaint she
had stated that she fell in love with the accused and that he assured
that he shall marry her after convincing the family and after one
year he denied to marry her and reason for not marrying her is that
his father, mother and sister are against the marriage and they are
not accepting to marry her. In the complaint dated 02.12.2013
Ex.P1 which had been given after delay, no averments had been
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made against the first respondent/accused stating that he induced
her on the false promise of marrying her and committed sexual
intercourse with her on 04.10.2013. In Ex.P1 she had stated that
she and the first respondent/accused are in love and that he had
assured to marry her after convincing the family and did not marry
her and the reason for denial is that his father, mother and the
sister are against the marriage and that she is Tamil girl and the
first respondent is a Malayali and that due to the caste problem they
are not accepting for the marriage. She had further stated that the
accused misused her and that her father was using filthy words
against her and that she attempted to commit suicide twice and that
she was admitted in the hospital by her parents. She had further
stated that if the accused does not marry her, her life will be in a
problem. Ex.P1 had been given after two months of the occurrence.
The complaint was forwarded to Inspector of Police, Women Cell,
Palakad and subsequently a statement was recorded from the
appellant with the help of an interpretor on 26.12.2013. In the
statement and the translation which were marked as Ex.P2, the
appellant had told that after one month of their acquaintance their
relationship came to be known to the first respondent/accused
family members and there was a problem in her family and that he
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had told her that he would convince his parents after his sister's
marriage and marry her and asked her to keep quiet for time being.
Later they used to meet once in two months at several places in
Coimbatore at the parking area and he used to kiss her and touch
her breasts and that on 04.10.2013, he had sexual intercourse with
her forcibly, despite her hesitation. She had further stated that
after the occurrence, they had food together and he fed her making
her to sit on his lap and the first respondent/accused was in her
house till 4.00pm. After that the first respondent/accused called her
repeatedly and told her that his father was not agreeing for the
marriage and because of that she tried to commit suicide twice.
Later on 30.11.2013, the first respondent had called her over phone
and informed her that his family will not allow her to marry and he
don't know what to do. Subsequently, the case had been
transferred to the file of the second respondent in Tamil Nadu on
the point of jurisdiction.
41. In her cross examination, the appellant had deposed
that they were in serious love for the past 1½years and that it was
a true love and that the accused had real intention to marry her.
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She had further deposed that she was aware that right from the
beginning of the relationship, the father and the other family
members of the first respondent/accused were against the marriage
and that she was also aware that the chances of them getting
married was very less.
42. PW2/mother of the appellant had deposed that she
came to know about the love affair of her daughter with the first
respondent/accused and he had told her that he will marry her
daughter after her younger sister gets married and that he will
convince his parents and get married and he had also given his
residential address to her. She had stated that the accused had
come to her house on 04.10.2013 at 1.00pm and she had gone out
to buy fish around 1.30pm and come back home by 2.15pm and
when she had come back, the accused had informed her that he
needs to go to Palakad and left the place. The evidence of PW2 is
contrary to the evidence of PW1 who had stated that the first
respondent had food with her after the occurrence and that she sat
on his lap and that he fed her and left home by 4.00pm. PW2 in her
cross examination had deposed that she was aware that her
daughter/PW1 and the first respondent/accused were truly loving
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each other. PW2 had deposed that the accused had come to her
house only twice.
43. PW3 neighbours had deposed that the accused used to
frequently visit the house and that PW1 had introduced him as her
fiancee.
44. PW4 another neighbour had also corroborated the
evidence of PW3.
45. PW8 and PW9 are the Doctors, PW8 is the Doctor who
had examined the first respondent/accused with regard to the
masculinity in respect of the first respondent/accused and he had
issued Ex.P12. PW9 is the Doctor who had conducted medical
examination on the appellant and issued Ex.P13/Accident Register
and Ex.P14/Medical certificate and Ex.P15/Intimation from the
Court.
46. As per the evidence of PW9 she had stated that the
appellant was examined by her and no external or internal injury
were found on the body of the appellant and that the hymen was
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not intact. PW9 had opined that since the medical examination had
been done after several days there was no proof of rape. The trial
Court had held that based on Ex.P14 it cannot be inferred that the
appellant was subjected to sexual intercourse by force. The trial
Court after analysing the evidence of PW1 and PW2 had taken into
consideration the contradictions between them to disbelieve the
evidence of PW1 regarding rape/sexual intercourse against her will.
47. Now considering the evidence of the PW1, she had
admitted that she and the first respondent/accused were in love
with each other for 1½ years and it was a true love and both of
them had strong intention to marry each other. Further it is the
evidence of PW3 and PW4 that they had seen the 1st
respondent/accused and when enquired he had told them that he is
going to marry the prosecutrix. Further it is the evidence of PW1
that right from the knowledge of the relationship, the father of the
accused was against their relationship and that she was also aware
that the chances of them getting married was less. Further PW1
had also deposed that during the police enquiry the first
respondent/accused had informed the police that his father was
against the marriage. The father of the first respondent had stated
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that if he marries the appellant, he would commit suicide by
hanging. Taking into consideration, the admission of PW1, it is clear
that the first respondent/accused did not have the intention to cheat
the appellant right from the inception of the relationship. The love
between them even as per the admission of PW1 was continuing for
1½ years and that they use to roam around frequently and that it
was a true love and only because of the opposition of the father and
other family members of the first respondent/accused that the
appellant was Tamil girl and the first respondent/accused was
Malayali and they belong to different community the marriage could
not be solemnised.
48. The trial Court taking into consideration the grave
contradictions in the statement of PW1/prosecutrix and her
mother/PW2 had held that the evidence of PW1 with regard to
rape/forceful sex has not been proved. Even assuming that there
had been sexual intercourse between PW1 and the first respondent
a burden is cast on the prosecution to prove that the consent of the
prosecutrix was obtained by playing fraud or deceit and that the
accused right from the beginning had no intention of marrying the
prosecutrix and that the promise was made only to satisfy his lust.
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49. Now while analysing the evidences in consonance with
the cases referred to on either side, this Court is able to see that as
per the evidence of PW1/prosecutrix she had deposed that she and
the first respondent/accused were deeply in love with each other for
several months and it is her case that they were roaming around to
several places and they used to be close to each other. Further, it
is her case that right from the beginning the accused had informed
her that there was objection from his family for the marriage, since,
both of them belong to different linguistic group and different
communities and that he would marry her after convincing them
and they had continued with the relationship. The prosecutrix being
a matured girl was conscious of the consequences.
50. In the first complaint given by the prosecutrix to the
Kerala Police there had been no whisper about any kind of sexual
intercourse between her and the accused. She had only stated that
they were in love with each other and had wanted the police to see
that they get married. Immediately, based on the complaint the
accused and his father were called to the police station for enquiry
and the father of the accused was adamantly against the marriage.
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It is the evidence of the prosecutrix that father of the accused had
even threatened to commit suicide, if police arranges for the
marriage between them. Only after few days the prosecutrix had
come out with the version that on the promise of marrying her the
accused had sexual intercourse with her. Even assuming there had
been sexual intercourse between them, the evidence of PW1 does
not disclose that the accused had intention to cheat her right from
the beginning and that the promise of marriage was made only to
satisfy his lust. The trial Court disbelieved the evidence of
prosecutrix and held that her evidence lacked credence. Further,
the trial Court had rightly held the prosecution has not proved that
right from the beginning the accused had the intention to cheat her
and did not have intention to marry her. The trial Court having
seen demeanour of the witness acquitted the first
respondent/accused. In this case as stated above the appellant and
the first respondent/accused were having relationship for about
1½years and the relationship which originated in a love affair,
developed over a period of time but the marriage could not fructify
because they belonged to different linguistic and communal group.
It seems to be a case of breach of promise rather than a case of
false promise to marry. Further there is absolutely no evidence to
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suggest that at the initial stage itself the accused had no intention
whatsoever of, keeping his promise to marry and that the false
promise was made only to satisfy the lust. Further, the term
misconception of fact must have a immediate relevance as pointed
above. The appellant and the accused were admittedly in deep love
with each other and the accused had also informed others that he is
going to marry the appellant. However, from the evidence it is
seem that the marriage could not fructify in the above
circumstances beyond his control.
51. The trial Court had critically analysed the evidence of
the prosecution. The trial Court has made a reasonable assessment
of the evidence produced by the prosecution. The trial Court after
giving cogent and convincing reasons had acquitted the accused.
This Court does not find any illegality or perversity in the impugned
judgment of acquittal.
52. In view of the above, this Court does not find any
merit in the present appeal and the same is hereby dismissed and
the judgment of acquittal passed by the Mahila Court, Coimbatore
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dated 06.12.2017 made in S.C.No.10 of 2016 stands confirmed.
53. In the result, the criminal appeal stands dismissed.
26.07.2021.
tsh
To
The Mahila Court, Coimbatore.
A.D.JAGADISH CHANDIRA, J.
tsh 67 / 68 https://www.mhc.tn.gov.in/judis/ Pre Delivery Judgment in Crl.A.No.326 of 2018 26.07.2021.
68 / 68https://www.mhc.tn.gov.in/judis/