Madras High Court
Sathish @ Sathishkumar vs The State Rep By on 29 August, 2018
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 30.07.2018 PRONOUNCED ON : 29.08.2018 CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN CRL.A.No.124 of 2011 Sathish @ Sathishkumar S/o.Ramalingam ... Appellant Vs The State rep by The Inspector of Police, T10, Tirumullaivoyil Police Station, Chennai.
(Crime No.226 of 2009) ... Respondent Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., against the judgment and order of conviction passed by the learned Additional Sessions (Fast Track Court-I) Poonamallee, Chennai in S.C.No.199 of 2010 dated 22.02.2011.
For Appellant : Mr.Pradeep Jayaraman For Respondent : Mrs.M.Prabhavathi Ganeshram Additional Public Prosecutor J U D G M E N T This appeal is directed as against the judgment dated 22.02.2011 passed in S.C.No.199 of 2010, thereby convicted the appellant and sentenced him to undergo seven years simple imprisonment and also to pay a fine of Rs.5,000/- in default to undergo one year simple imprisonment for the offence under Section 366 of IPC.
2. The case of the prosecution in brief is as follows :- P.W.1 is the father of the victim P.W.5. P.W.5 Gayathri was working in Leela export and P.W.7 Sasikala, own brother's daughter of P.W.1, also was working there. On 29.05.2009, at about 7.30 a.m., P.W.1 received a phone call from P.W.7 that P.W.5 Gayathri was not coming for work. Thereafter, P.W.1 searched for his daughter from all his relatives' house and he came to understand that P.W.5 was kidnapped by the accused. At that time P.W.5 was a minor. Therefore, he lodged a complaint Ex.P.1 to P.W.13, the Sub Inspector of Police, Tirumullaivoyil Police Station. P.W.13 on receipt of the complaint from P.W.1 registered a case in Cr.No.228 of 2009 as "Girl missing".
3. On 31.05.2009, at about 4.30 p.m., near Tirumullaivoyil bus stop, P.W.13, the Sub Inspector of Police arrested the accused along with victim P.W.5. He recovered their dresses and subjected the victim for medical examination. After recording the confession statement of the accused and seized the marriage receipt from the accused. Then the Investigation Officer, after examinations of witnesses, he filed alteration report and altered in to the offences under Sections 365 and 376 of IPC against the accused and handed over the entire case to P.W.14 the Inspector of Police for further investigation.
4. P.W.14, the Inspector of Police examined the Doctors, who examined the accused and the victim. On 02.06.2009, Dr. Gitanjali, examined the victim, P.W.5, and subjected her for radiology test and opined that she was aged about above 16 years and below 18 years. The medical examination report was marked as Ex.P.10 and the age certificate marked as Ex.P.11. P.W.11 Forensic Officer examined the dresses of the victim and the accused and opined that no strain found and no sign of sperms. The medical report marked as Ex.12. P.W.12, Dr.Sathyamurthy examined the accused an opined that he was capable of performing sexual intercourse with women. His report marked as Ex.P.14. Based on the materials, he filed a charge sheet for the offences under Sections 506(i), 366, 366(A) and 376 of IPC. The trial Court framed charges as stated above and the accused denied the same and claimed for trial.
5. In order to prove the case, the prosecution examined as many as prosecution witnesses in P.W.1 to P.W.14 and marked Ex.P.1 to Ex.P.19 and produced M.O.1 to M.O.9. When the above incriminating materials were placed before the accused and he was questioned under Section 313 of Cr.P.C., the accused denied the same. The trial Court after considering the oral and documentary evidence convicted the accused and sentenced him as stated above.
6. The learned counsel appearing for the appellant submitted that there is a delay in preferring the complaint. Further, the offences under Sections 366 and 376 of IPC have not been made out against the accused. That apart, now the accused and the victim got married and blessed with two children and they are living happily. He also relied upon the judgment of this Court passed in "Crl.A.No.172 of 2003 Rajendran Vs. State" and also the judgment of this Court passed in "Crl.A.No.199 of 2013 & Crl.A.NO.665 of 2014 Rajamanickam of others Vs. State". Hence he prayed for allowing this appeal.
7. On resisting the same, the learned Additional Public Prosecutor submitted that the accused kidnapped the minor girl and forced her to marry him. Therefore, the offences under Sections 366 and 376 of IPC are made out. Hence she prayed for confirming the conviction of the accused and prayed for dismissal of this appeal.
8. Considered the rival submission made by Mr.Pradeep Jayaraman, learned counsel appearing for the appellant and Mrs. Prabhavathi Ganeshram learned appearing for the State and also perused the materials available on record.
9. It is seen from the evidence of P.W.5 that she got married with the accused on 29.05.2009 at Shree Nagakanniyamman temple and after marriage they went to Salem and on the next day they rushed to Thirumuilaivoyal Police Station. Thereafter they were subjected to medical examination. She deposed that they went to Kovalam and they did not have sexual intercourse before their marriage. Since her parents objected their marriage, she eloped with the accused. The accused did not kidnap her and never compel her to marry him. Only on her wish, she married him and the accused never threatened her. Now it is appropriate to incorporate the evidence of P.W.5.
ehd; jpUKy;iythapy; vl;oak;kd; efh; bt';fnl!;tuh 1tJ bjU. fjt[ vz; 11y; trpj;J tUfpnwd;/ m/rh/1 vdJ je;ij/ M$h; vjphpiaj; bjhpa[k;/ 29/5/2009Mk; njjp md;W kjpak; vdf;Fk; M$h; vjphpf;Fk; jpUntw;fhL nfhtpypy; jpUkzk; ele;jJ. jpUkzj;jpw;F gpd;dh; ehDk; M$h; vjphpa[k; nryk; brd;nwhk;. kWehs; fhiyapy; jpUKy;iythapy; fhty; epiyaj;jpw;F te;Jtpl;nlhk;. 2 ehl;fs; fhty; epiyaj;jpy; ,Ue;Jtpl;L gpd;dh; ePjpkd;wk; miHj;Jr; brd;wdh;/ jpUkzj;jpw;F gpd;dh; ehDk; M$h; vjphpa[k; clYwt[ vJt[k; bra;Jbfhs;stpy;iy/ vd;Dld; M$h; vjphp clYwt[ itj;Jf; bfhs;stpy;iy/ jpUkzk; bra;j rkaj;jpy; vdf;F taJ 16/ jpUkzj;jpw;F vdJ bgw;nwhh;fs; rk;kjk; bjhptpf;ftpy;iy/ jpUkzj;jpw;F ehd; rk;kjk; bjhptpj;njd;/ M$h; vjphp vd;id tYf;fl;lhakhf flj;jpr; bry;ytpy;iy/ mnjnghy; tYf;fl;lhag;gLj;jp vd;id jpUkzk; bra;J bfhs;stpy;iy/ vdJ tpUg;gj;jpd; nghpy; jhd; vdf;Fk; M$h; vjphpf;Fk; jpUkzk; ele;jJ/ M$h; vjphp vd;id kpul;ltpy;iy/ ,J rk;ke;jkhf nghyPrhh; vd;id tprhhpf;ftpy;iy/@ The above evidence would clearly prove that P.W.5 left her parental home on her own wish. There is no evidence to show that the accused induced P.W.5. Therefore, the charges under Section 366A of IPC is not made out and the prosecution failed to prove the charge under Section 366 A beyond reasonable doubt.
10. As far as the offence of rape under Section 376 of IPC is concerned concerned, though the victim was only aged about 16 years on the date of occurrence, there isnot no evidence to prove that she was a consenting party to have sexual intercourse with the accused and the act of the accused in having sexual intercourse with the victim would not make out the offence under Section 376 of IPC. It is also seen from the medical examination report that there is no sign of rape at all. Therefore, the prosecution has failed to prove the charges under Sections 506(i) and 376 of IPC.
11. As far as the charge under Section 366 of IPC is concerned, once the girl aged about 16 years, then only it has been made out. According to the case of the prosecution, the victim girl was aged about 16 years, as per Ex.P.11, the age certificate issued by P.W.10. The Doctor opined that victim was aged about 16 years completed and not crossed 18 years. As such the prosecution proved that the victim was at the verge of attaining majority, as on the date of occurrence. Hence the trial Court concluded that the victim was minor and the charge under Section 366 of IPC made out against the accused, though the victim girl herself voluntarily accompanied with the accused and married him on her own wish.
12. On perusal of records, it is seen that there is no doubt that the age of the victim girl is 16 years at the time of occurrence. It is admitted fact that she was a minor girl and P.W.1 is her lawful guardian i.e., father. But absolutely no evidence to show that the accused induced the victim P.W.5, to leave from her lawful guardian without their consent. Even though she was only aged about 16 years at the time of occurrence, she voluntarily accompanied with the accused and left her parental home and married him. It is also seen from the evidence of victim that she was not compelled, threatened and induced by the accused to leave from her parental house and to marry him.
13. The judgment cited by the learned counsel for the appellant in "Crl.A.No.199 of 2013 & Crl.A.NO.665 of 2014 Rajamanickam of others Vs. State" which held as follows :-
"19. Now turning to the offence under Section 366 of IPC, as we have already narrated, P.W.2 had studied up to 11th standard. She was 17 years and 9 months old at the time of the occurrence. But the Medical Certificate shows that she had completed 18 years of age. Assuming that there was 3 months short of attaining the majority, the conduct of P.W.2, in going along with the 1st accused happily on her own, would go to show that there was no kidnapping at all. For this, the learned Counsel for the 1st accused Mr.N.Manokaran, would rely on a decision of the Hon'ble Supreme Court in S.Varadarajan Vs. State of Madras reported in AIR 1965 SC 942 wherein the Hon'ble Supreme Court has held that a girl at the verge of attaining majority, if goes on her own accord, there is no taking in terms of Section 366 of IPC and thus, the act of the accused would not make out any offence. In paragraph 9 of the judgment, the Hon'ble Supreme Court has held as follows:
''9. It must, however, be borne in mind that there is a distinction between ''taking'' and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purpose of S.361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from keeping her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or any active participation by him in the formation of the intention of the minor to leave the house of the guardian.'' Another judgment cited by the learned counsel for the appellant in "Crl.A.No.172 of 2003 Rajendran Vs. State" reads as follows :-
"On perusal of records, there is no doubt that the age of the girl was 17 years at the time of occurrence. It is an admitted fact that she is a minor girl and P.W.1 is her lawful guardian. But there is no evidence to show that the appellant/accused herein has induced P.W.5 to leave lawful guardian of said minor without consent of legal guardian. But here, admittedly, P.W.5 took away the jewels and left her home, as if she goes to tailoring class. Since she did not return back to home on 18.1.1999, till 2.30 p.m., her father/P.W.1 made an enquiry in her tailoring class as well as his relatives house. But he could not find her, so he gave complaint on 21.01.1999. At the time only, he came to know that 15 sovereigns jewels and Rs.5,000/- were missing. On 22.01.1999, when P.W.7 along with P.W.1 and P.W.4 made a search, they caught hold the accused and the victim girl, who possessed the jewels, which were marked as M.O.1 to M.O.7. It shows that even though the girl was 17 years old at the time of occurrence, she voluntarily accompanied with the accused and left her home along with jewels. In my opinion, the submission of the learned Government Advocate (Crl. Side) that the appellant/accused is ought to have convicted under Section 363 IPC, does not hold good. In such circumstances, I am of the view, the prosecution has miserably failed to prove that the accused is guilty under Sections 366 IPC as well as Sections 361 r/w 363 IPC. Therefore, the judgment of conviction and sentence passed by the trial Court under Section 366A IPC is liable to be set aside and hence, it is hereby set aside."
14. In the present case on hand, P.W.5, the victim was capable of taking decision at the time of occurrence. Therefore, applying the principles laid down in the judgment of the Hon'ble Supreme Court of India as stated supra, this Court concluded that the offence of kidnapping has not been proved by the prosecution.
15. In the result, this criminal appeal is allowed and the conviction and sentence imposed by the learned Additional Sessions Judge (Fast Track Court-I) Poonamallee, Chennai on 22.02.2011 in S.C.No.199 of 2010, on the appellant is set a side and he is acquitted from all the charges. Fine amount, if any paid, shall be refunded to the appellant forthwith. Bail bonds, if any executed, shall stand cancelled.
29.08.2018 Index:Yes Internet:Yes Speaking order rts To
1. The Presiding Officer, The Additional Sessions Court, (Fast Track Court-I) Poonamallee, Chennai
2. The Inspector of Police, T10, Tirumullaivoyil Police Station, Chennai.
3. The Public Prosecutor, High Court, Madras.
G.K.ILANTHIRAIYAN, J., rts JUDGMENT IN CRL.A.124 OF 2011 29.08.2018