Madras High Court
Palanisamy vs State By on 22 November, 2021
Author: R.N.Manjula
Bench: R.N.Manjula
Crl.A.Nos.165 & 552 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA
Criminal Appeal Nos.165 & 552 of 2014
Criminal Appeal No.165 of 2014
Palanisamy .. Appellant/Accused
Vs.
State by
Inspector of Police,
All Women Police Station,
Ariyalur,
Ariyalur District.
(Crime No.12/2009) .. Respondent/Complainant
PRAYER: This Criminal Appeal filed under Section 374 Cr.P.C., against
the conviction and sentence passed by the learned Principal Sessions Judge,
Ariyalur, Ariyalur District in SC.No.37 of 2012, by judgement dated
04.03.2014, and acquit the appellant herein from the charge.
Criminal Appeal No.552 of 2014
State by
Inspector of Police,
1/21
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.165 & 552 of 2014
All Women Police Station,
Ariyalur,
Ariyalur District.
(Crime No.12/2009) .. Petitioner /Complainant
Vs.
Palanisamy .. Respondent /Accused
PRAYER: This Criminal Appeal filed under Section 374 Cr.P.C., against
the judgement of acquittal of the respondent/ accused under Sec.376 IPC
passed by the learned Principal Sessions Judge, Ariyalur, Ariyalur District in
S.C.No. 37 of 2012, dated 04.03.2014.
For Appellant : Mr.M.Nallathambi
Legal Aid Counsel
For Respondent : Mr.A.Gopinath
Government Advocate (Crl.Side)
COMMON JUDGMENT
Criminal Appeal in Crl.A.No.165 of 2014 is filed by the appellant/accused challenging the judgement of the learned Principal Sessions Judge, Ariyalur, Ariyalur District dated 04.03.2014 made in S.C.No.37 of 2012, wherein the accused was found guilty for the offence 2/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 under Section 417 IPC and was sentenced to undergo one year Rigorous Imprisonment.
Criminal Appeal in Crl.A.No.552 of 2014 has been preferred by the State challenging the judgement of acquittal of the respondent/ accused under Sec.376 IPC passed by the learned Principal Sessions Judge, Ariyalur, Ariyalur District in S.C.No. 37 of 2012, dated 04.03.2014.
2. The short facts of the prosecution case are as follows:
The victim (defacto complainant) and the accused were the residents of Puduhupalayam Village in Keelapalur Village; the accused was engaged in charcoal work near the defacto complainant's house and developed friendship with her; he also assured her that he would marry her; with this intention they have been moving intimately from the month of May 2009.
On 05.07.2009, when the victim (defacto complainant) was alone in her house, the accused went there and enticed her by promising to marry her and then had sexual intercourse with her despite her objections. When the parents came to know about it, they approached the accused to marry the 3/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 victim and for which the accused refused. Thereafter a complaint (Ex.P.1) was given to the respondent police and a case was registered by P.W.10- P.Vani, Sub Inspector of Police. in Crime. No.12/2009 (Ex.P.5) for the offence under Sec.417 and 376 IPC.
2.1. P.W.11-A.Rajasekhar, Inspector of Police took up the case for investigation, went to the place of occurrence, prepared the observation mahazar (Ex.P.2) and rough sketch (Ex.P.6). After examining the witnesses he arrested the accused on 08.12.2009 itself and sent him for remand. He sent both the victim and the accused for medical examination. After obtaining the medical reports and concluding the investigation, he filed the charge sheet against the accused for the offences under Sec.376 and 417 IPC.
2.2. The case was taken on file in S.C.No.46/2010 by the learned Sessions Judge, Perambalur and thereafter, it was assigned to the file of the Mahila Court, Perambalaur. When the case was pending before the Mahila 4/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 Court, it was transferred to the file of Sessions Court, Ariyalur as per the letter of this Court in R.O.C.No.2751/2011/G4 dated 14.03.2012 and was renumbered as S.C.No.37/2012. After furnishing the copies of the charge sheet and observing legal mandates, charges have been framed under Sec.376 and 417 IPC. When questioned, the accused denied the guilt and claimed for trial.
3. On the side of the prosecution, 11 witnesses have been examined as P.Ws.1 to 11 and Exs.P-1 to P-8 and Ex.C.1 to C3 were marked. On the side of the accused no witnesses were examined and no documents were marked.
4. After concluding the trial and on considering the materials on record, the learned trial Judge found the accused not guilty for the offence under sec.376 IPC and found him guilty for the offence under Sec.417 IPC and convicted and sentenced him as stated supra. Aggrieved over the same, the accused preferred the appeal in Crl.A.No.165 of 2014 and the 5/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 prosecution has preferred the appeal in Crl.A.No.552/2015, against acquitting the accused from the offence under Sec.376 IPC.
5. Since both the appeals had arisen out of the same judgement, arguments heard in common and a common judgement is passed. For the sake of convenience, the appellant in Crl.A.No.165/2015 is referred as the Accused and the appeallant in Crl.A.No.552/2014 is referred as respondent/complainant.
6. Heard the submissions of Mr.M.Nallathambi, learned Legal Aid Counsel for the Accused and Mr.A.Gopinath, Government Advocate (Crl.Side) appearing for the respondent/State.
7. The learned counsel for the appellant submitted that there was no intention on the part of the accused to cheat the defacto complainant and it was at the instance of his parents that he could not marry the girl (victim).
He drew the attention of this Court to the definition of Sec.415 IPC which defines cheating and submitted that since no motive for deceiving the victim 6/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 could be gathered from the conduct of the accused, the learned Sessions Judge ought not to have found the accused guilty for the offence under Sec.417 IPC.
8. The learned Government Advocate for the State has submitted that the learned trial Judge has rightly convicted the accused for the offence under Sec.417 IPC; However the Court omitted to convict the accused for the offence under Sec.376 IPC also. It is further submitted that the learned Trial Court had not given due significance to the evidence of the victim, who has stated about the sexual offence committed on her by the accused. By so stating, the learned Government Advocate claimed that the accused ought to have been punished for the offence under Sec.376 IPC. It is also brought to the notice of the Court by the learned Government Advocate that the victim got conceived due to the sexual offence committed on her and she delivered a male baby and he is 10 years now. He further submitted that the DNA report (Ex.P.8) would also prove the paternity and hence the accused should be punished for the offence under Sec.370 IPC as well. 7/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014
9. The point for consideration is
1. Whether the finding of the learned trial Judge as to the acquittal of the accused under Section 376 IPC, basing on the material available before him is fair and proper?
2. Whether the finding of the learned trial Judge as to the conviction of the accused under Section 417 IPC, basing on the material available before him is fair and proper?
10. On perusal of the facts of the case, it is seen that the accused and the victim were not strangers when the alleged offence took place. The accused came into contact with the victim while he was engaged in the charcoal work near her residence and developed an affair with her. The victim was moving with the accused with a belief that he would marry her at some point of time. She also stated in her evidence that the accused had promised to marry her.
11. As per the evidence of PW.1/victim, on 05.07.2009 when she was alone at her house, the accused came there and on a promise to marry 8/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 he had sexual intercourse with her despite she objected. Such act was repeated on four other occasions also. PW.1 did not inform the occurrence immediately after the first occurrence had taken place.
12. Incidentally they were noticed by the brother of the victim and before whom also the accused assured to marry PW-1. Only then, PW.1 revealed to her brother about the sexual acts committed by the accused. On the assurance of marriage, they were allowed to move together. PW.1 got perturbed when she missed her periods. Thereafter the relatives of the victim went and held talks with the parents of the accused. The parents of the accused refused to take the victim in marriage for the accused. Even the accused refused to marry her by stating that he only wanted to marry his aunt’s daughter. Thereafter the complaint (Ex.P.1) was given. Even at the time of giving the complaint PW.1/victim was 8 months pregnant.
13. During the cross examination, PW.1 has stated that she is 20 years old. There is no dispute with regard to the age of the victim. PW.1 has 9/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 categorically stated in her evidence that the sexual intercourse had occurred on four occasions with her consent. Her only grievance is that the accused failed to marry her after making her pregnant and thereby cheated her. The family of the victim was complacent on the marriage assurance given by the accused and allowed them to move together. The accused took advantage of the same and had free access to the victim to repeat his sexual acts.
14. Though it might be true that PW.1 had given her consent on the assurance of marriage, she was not under any compulsion to subject herself to the sexual intentions of the accused. She knew well that having physical intimacy with her lover before marriage will have its own consequence.
15. The learned Trial Judge has listed the following circumstances in order to make it clear that the sexual acts between the victim and the accused were only consensual sex. Some sequences of the facts and events that have been listed by the learned trial Judge as under:
“i) The prosecutrix was 20 years of age at the time of the crime and the accused are relatives and are known to 10/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 each other already.
ii) That the accused had been familiar and moving with the P.W.1 for quite a long time.
iii) That love and affection has developed amongst the accused and P.W.1.
iv) That the accused and P.W.1 had been engaged in long conversation with each other.
v) That the accused and P.W.1 had been meeting each other in the temple festivals.
vi) That there has been physical relationship between the accused and P.W.1 for a longer period.
vii)That P.W.1 has not chosen to reveal the affinity or the physical relationship with the accused, to her parents
viii)That the physical relationship has occurred four times in a span of two months between the P.W.1 and the accused.
ix) That immediate after coming to know about the fact of the relationship the prosecution witnesses have not chosen to prefer a complaint but they had started making the proposal of marriage.
x) Only when the accused refused to marry the PW.1 the 11/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 complaint has been preferred.”
16. As per the definition given for rape under Sec.375 IPC, a man is said to have committed rape only as found here under:
“Section 375 IPC:
1[375. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:— (First) — Against her will.
(Secondly) —Without her consent.
(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
12/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 (Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. (Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE AMENDMENT ”
17. The learned Government Advocate has submitted that the act committed by the accused would fall under the 4th description (of sub clause ‘d’) of Sec.375 IPC.
“(Fourthly)—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law-fully married.”
18. As per the above description the offence is deemed to have committed if the consent of the woman was obtained by making her to believe that the man was her husband and she was lawfully wedded to him. No doubt, the accused had made the victim to believe by his repeated assurance that his friendship with her would fructify into marriage. But PW.1 knew well that the accused is not her husband and she did not believe 13/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 that a marriage had been performed between herself and the accused. In fact the struggle of victim and her family was to get her married to the accused after the victim got conceived due to the accused. So in my appreciation, the consent given by PW.1 will not fall under the description 4 of Sec.375 IPC. Hence the accused can not be found guilty and punished for the offence of rape. Hence I find no reason to interfere with the findings of the trial court that the accused is not guilty for the offence under sec.376 I.P.C. Thus point No.1 is answered.
19. The learned Counsel for the accused submitted that since the accused did not have any fraudulent intention, he had not committed an offence of cheating. Sec.415 I.P.C defines cheating as under:
Section 415
415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation.—A dishonest concealment of facts is a 14/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 deception within the meaning of this section. Illustrations
(a) A, by falsely pretending to be in the Civil Service, inten-
tionally deceives Z, and thus dishonestly induces Z to let him have on credit goods for which he does not mean to pay. A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a belief that this article was made by a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article, inten- tionally deceives Z into believing that the article corresponds with the sample, and thereby, dishonestly induces Z to buy and pay for the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps no money, and by which A expects that the bill will be dishonored, intentionally deceives Z, and thereby dishonestly induces Z to deliver the article, intending not to pay for it. A cheats.
(e) A, by pledging as diamonds article which he knows are not diamonds, intentionally deceives Z, and thereby dishonestly induces Z to lend money. A cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z may lend to him and thereby dishonestly induces Z to lend him money. A not intending to repay it. A cheats.
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain quantity of indigo plant which he does not intend to deliver, and thereby dishonestly induces Z to advance money upon the faith of such delivery. A cheats; but if A, at the time of obtaining the money, intends to deliver the indigo plant, and afterwards breaks his contract and does not 15/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 deliver it, he does not cheat, but is liable only to a civil action for breach of contract.
(h) A intentionally deceives Z into a belief that A has performed A’s part of a contract made with Z, which he has not performed, and thereby dishonestly induces Z to pay money. A cheats.
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale he has no right to the property, sells or mortgages the same to Z, without disclosing the fact of the previous sale and conveyance to B, and receives the purchase or mortgage money from Z. A cheats.
20. The intention of deception can only be inferred from the conduct of the accused. Admittedly the victim had delivered her person to the accused and consented for sexual intimacy with the accused based on the assurance of marriage. His subsequent conduct of refusing to marry her after knowing that she got conceived of him would show that he had the intention to deceive her and he concealed it by giving her false assurances. Hence I find no reason to interfere with the finding of the trial court that the accused is guilty for the offence of cheating under sec.417 I.P.C. Thus point No.2 is answered.
16/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014
21. The sexual acts of the accused on the victim no doubt has caused huge damage to her mental and physical integrity. She would have suffered shame and embarrassment for having become an unwed mother for her child. In the social situation of the victim, becoming mother without marriage will not be taken casually and there is every possibility for the victim to face social stigma. The act of the accused made the life of the victim and her child miserable.
17/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014
22. The victim is said to have studied only up to 5th standard and she is not employed anywhere. Her social and economic condition is not conducive to maintain herself and the child. However the learned Sessions Court has not imposed any fine or awarded any compensation to the victim. It is probably because of the fact that the accused is not economically sound to pay compensation to the victim. The life of the victim and her child have to be rehabilitated. Since they are victims of crime, they deserve to be awarded with Compensation. I feel that it is appropriate to award a sum of Rs.5,00,000/- as compensation to be payable to the victim from the Tamil Nadu Victim Compensation Fund.
In the result,
(i) Both the appeals are dismissed and the judgement of the learned Principle Sessions Judge, Ariyalur, Ariyalur District in SC.No.37 of 2012, dated 04.03.2014, is upheld.
(ii) And a compensation of Rs.5,00,000/- [Rupees Five lakhs only] is ordered to be paid to PW.1 as compensation from the Tamil Nadu Victim 18/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 Compensation Scheme, 2013 within 4 weeks of receipt of the copy of this order.
22.11.2021 Index : Yes Internet: Yes Speaking / Non Speaking jrs Copy to
1. The Principle Sessions Judge, Ariyalur, Ariyalur District.
2.The Secretary, Finance Department, Government of Tamil Nadu, Fort st. George, Chennai-09.
3. The Director, Social Welfare and Women Empowerment Department, Secretariat, Chennai-9.
4. The State Legal Service Authority , High Court of Madras, Chennai.
5. The Public Prosecutor, High Court, Madras.
6. The Inspector of Police, All Women Police Station, Ariyalur.
19/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014
7. The Record Keeper, Criminal Section, High Court, Madras.
20/21 https://www.mhc.tn.gov.in/judis Crl.A.Nos.165 & 552 of 2014 R.N.MANJULA, J jrs Crl.A.Nos.165 & 552 of 2014 22.11.2021 21/21 https://www.mhc.tn.gov.in/judis