Madras High Court
Dharmalingam vs / on 6 July, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.A.No.361 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on :29.06.2022
Pronounced on :06.07.2022
Coram:
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Criminal Appeal No.361 of 2018
Dharmalingam .. Appellant
/versus/
State by
Inspector of Police,
All Women Police Station,
Thirupattur,
Vellore District.
(Crime No.4 of 2005) .. Respondent
Prayer: Criminal Appeal has been filed under Section 374(2) of the
Criminal Procedure Code, to set aside the conviction and sentence imposed
on the appellant herein in S.C.No.280 of 2010 by judgment dated
15.11.2017 passed by the learned Sessions Judge, Magalir Needhi
Mandram, Fast Track Mahila Court, Vellore, Vellore District and acquit the
appellant herein from all charges.
For Appellant :Mr.K.Balu
For Respondent :Mr.S.Udayakumar
Govt. Advocate (Crl.Side)
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Crl.A.No.361 of 2018
JUDGMENT
The appellant Dharmalingam, the accused in SC 280/2010 ( split up from the main case SC 281/2006 ) was convicted by the trial court for offence under section 366 IPC and 376 IPC. The trial court sentenced him as below:-
Section 366 3 years Rigorous Imprisonment and fine of Rs.5000/-
IPC in default, 1 month Simple Imprisonment Section 376 7 years Rigorous Imprisonment and fine of Rs.5000/-
IPC. in default, 1 month Simple Imprisonment The period of substantive sentence ordered to run concurrently. Period of detention already undergone was set off under Section 428 of Cr.P.C.
2.The injured girl aged about 15 years is the first informant in this case. On receipt of the memo along with the statement of the injured girl recorded by Mr.Mohan, the Sub-Inspector of Police attached to the Yelagiri Police Station, case was registered in Crime No.4/2005 on 14/02/2005 at 17.00 hrs. against the accused/appellant under Sections 376 and 506 (ii) IPC by Smt.Malini, the Sub-Inspector of Police, attached to the All Women Police Station, Thirupattur.
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3.As per the First Information Report, the victim girl aged 15 years was pursuing her 10th Standard at Charles School at Yelagiri Hills. 3 months prior to the incident, the accused befriended her and his love. They both used to go to isolated places near Yelagiri Murugan Temple and Boat House, enjoy the company of each other. Two months prior to the incident, the accused took her to Tirupattur Town under the pretext of buying dress to her. The accused took her to a lodge and had intercourse with her. When she protested, he promised to marry. One day, he came to her house, met her mother and expressed his wish to marry her and also told that his parents will consent for the marriage, if 15 sovereigns of jewel and a vehicle is given as dowry. Her parents declined his request, since they want their daughter to pursue her studies. However, the defacto complainant continued the intimate relationship with the accused. Knowing the affair, her parents left her in her grandmother’s house at Kunnathur. From her grand mother’s house, she used to come and meet the accused at a STD Booth opposite to Salam Restaurant, Ambur. A week prior to the incident, she told her grandmother that she is going to Yelagiri, but went to Ambur and met the accused. The accused took her to a place near a river and tied thali. Then 3/18 https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018 went to nearby Anjeneyar temple and then stayed in Satish Lodge, Ambur for 4 hours and spend time happily. Thereafter, he took her to Vaniyambadi bus stand and instructed her to go to her relative house, promising he will take her back within two days after arranging a residence at Ambur. Believing his words, she went to her aunty’s house at Katteri and stayed there for two days. She came to Ambur on 09/02/2005 and met the accused near the STD booth and asked him to take her to his home. He refused take her. He asked her to say that the thali was tied not by him but by someone else. The accused also threatened to liquidate her and her uncle family, if she force him any further. Then, the accused took her in his two wheeler and left her at Vaniyambadi Bus Stand. She went back home at Yelagiri. Her parents brought her back to Kunnathur and stayed with her at Kunnathur. Fearing that the pregnancy due to her carnal relationship with the accused may cause disgrace to her family, she on 11/02/2005 at about 10.00 am, when no one was in the house, doused kerosene on her and set fire. She was rescued by her relatives and taken to the Vaniyambadi Government Hospital. At the hospital fearing if she discloses the truth accused may liquidate her family and her uncle family, she suppressed the truth and gave 4/18 https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018 a false statement that accidentally, she caught fire while cooking. In fact, being deceived by the accused and fearing shame and the threat to her life and her uncle family, she decided to commit suicide and self immolated.
4.According to the prosecution, the above statement recorded by Mr.Mohan, the Sub-Inspector of Police attached to Yelagiri Police Station is the First Information received by the Police. But even before the above statement was recorded on 14/02/2005 by the Sub Inspector, Mr.Mohan of Vaniyambadi Police Station, on 13/02/2005 at about 8.00 pm, based on the requisition letter 13/02/2005 from the duty Doctor at Government Hospital, Vaniyambadi, the Learned Judicial Magistrate, Ambur has gone to the hospital and recorded the statement of the victim at about 8.40 p.m. The victim girl later died on 22/02/2005 about 5.00 am at Government Hospital, Vaniyambadi.
5.On completion of investigation, Tmt.Geetha (PW-15), the Inspector of Police filed the final report against the appellant and 4 others before the Judicial Magistrate - I, Thirupattur. The offence being exclusively triable by 5/18 https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018 the Court of Sessions, the Judicial Magistrate committed the case to Sessions Court at Vellore. Showing one of the accused Elumalai (A-4) absconding against whom NBW was pending and the case split up assigning P.R.C.No.15/2006. The remaining accused who were on bail asked to appear before the Sessions Court at Vellore.
6.The case was made over to the Fast Track Court, Mahila Court, Vellore and taken on file in S.C.No.281/2006. Charges were framed against four accused namely, Dharmalingam, Sekar, Jayaraman and Nandakumar. Against (A-1)Dharmalingam: Offences under Sections 366, 376 and 506(ii) IPC and Section 4 of Dowry Prohibition Act, 1961. Against A-2 to A-4: Offence under Section 366 r/w 109 IPC.
7.This appellant/accused (Dharmalingam), went absconding pending trial. NBW was pending against him since 23/05/2007. In view of NBW pending for a long period, case against him was split up from 6/18 https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018 S.C.No.281/2006 and assigned a new number for his case as S.C.No.280/2010. The appellant was secured, on execution of the NBW only on 18/02/2014. Meanwhile, the other accused who were facing trial for the charge under Section 366 r/w 109 IPC for abetting this petitioner to kidnap the minor girl aged 15 years from the lawful custody, were acquitted in S.C.No.281/2006 by order dated 10/05/2011.
8. In the instant case S.C.No.280/2010, 15 witnesses (PW-1 to PW-
15), 13 documents (Ex.P-1 to Ex.P-13) and 3 material objects (M.O.1 to M.O.3) were marked on the side of the prosecution. One document Ex.D-1 marked on the side of the defence.
9. The trial Court appreciating the evidence placed before it, held the charges under Section 366 IPC and Section 376 IPC are proved. Convicted and sentenced the accused to undergo 3 years RI and to pay a fine of Rs.5000/- in default, 1 months SI. For offence under Section 366 IPC. Convicted and sentenced him to undergo 7 years RI and to pay a fine of Rs.5000/- in default, 1 month SI. As far as the charges under Section 506 7/18 https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018
(ii), 306 of IPC and Section 4 of the Dowry Prohibition Act, the trial Court acquitted the accused as not proved.
10. The learned counsel appearing for the appellant/accused submitted that, for the alleged incident which occurred on 11/02/2005 the complaint registered three days later on 14/02/2005. There is no plausible explanation given by the respondent police for the inordinate delay. The earlier version of the police that the victim caught fire while cooking, after delay of three days got changed into the case of kidnap and rape. Ex.D- 1(Accident Register) maintained at Government Hospital, Vaniyambadi is the earliest document in this case. This Accident Report of the victim girl was recorded on 11/02/2005 at 11.50 a.m and reached the Judicial Magistrate Court on 14/02/2005. In this Accident Register, the entries discloses that the victim was brought to the hospital by her mother Anjiammal (PW-1) and she told the duty doctor that the victim sustained burn injury at 10.00 a.m on that day, while cooking at her house. 8/18 https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018
11. All other documents, which were purported to be the statements of the victim and the other witnesses are after three days of the occurrence and recorded, after due deliberation and consultation to fix the accused and the others, who have nothing to do with the deceased girl or the alleged offence.
12. The prosecution failed to collect evidence regarding the alleged stay in the lodge at Thirupattur or at Ambur. It failed to establish the paternity of the foetus by conducting DNA test. Sujatha (PW-13) had said nothing incriminating the accused. The ingredient for the offence under Section 366 IPC is compelling a woman to marry any person against her will or forcing or seducing her to illicit intercourse. Even assuming the statement of the victim girl given to the Judicial Magistrate was free from any external influence and voluntary, the complete reading of her statement given to the Judicial Magistrate, which is marked as Ex.P-9 through PW-11 does not satisfy the necessary ingredient to make out a case for convicting the accused for offence under Section 366 IPC.
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13. The learned counsel for the appellant/accused to emphasis that the victim herself was not consistent in her statement contended that, the earliest document dated 11/02/2005 is the Accident Register marked as Ex.D-1. It states that it was an accident, while cooking. The subsequent statements recorded on 13/02/2005 at 9.00 p.m. is marked as Ex.P-9. The third statement is Ex.P-1 recorded on 14/02/2005. In the later two statements she claimed to have said that she doused herself due to the deceitful act of the accused and the threat thrown by him. Comparing the statements of the victim recorded by the Judicial Magistrate on 13/02/2005 at 9.00 p.m which is marked as Ex.P-9 and the statement of the victim recorded by the Sub-Inspector of Police, Yelagiri Police Station Mr.Mohan (not examined) on the next day i.e on 14/02/2005 and marked as Ex.P-1, the learned counsel for the appellant submitted that there are contradictory in respect of length of her acquaintance with the accused. (2 years to the Judicial Magistrate and 3 months to the police). The names of the other accused whom alleged to have abetted A-1 found in Ex.P-9 is conspicuously missing in Ex.P-1. Based on the dying declaration Ex.P-9, 3 others were prosecuted for abetment. However, they all were held not guilty and 10/18 https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018 acquitted by the trial Court in S.C.No. 281/2006 by order dated 10/05/2011. In her statement to the Judicial Magistrate (Ex.P-9) she has not stated anything about her stay in her grand mother’s house or the occurrence was at her grand mothers house. She has not even stated any detail about the lodges, they stayed together to have intercourse. Except a vague allegation that the accused took her to various places and stayed in lodges and had intercourse with her, no specific information available in Ex.P-9. Whereas, in the statement given to the police on the next day, she has mentioned the name of the lodge, place, approximate date.
14. The learned counsel for the appellate therefore submitted that in view of contradictions in these two dying declarations and the failure to examine Mohan who recorded Ex.P-1 which is the foundation for the registration of the FIR and the subsequent investigation, the case of the prosecution has to fall. That apart, the failure to examine the lodge owners mentioned in the statement of the victim girl, to ascertain whether really the victim girl and the accused stayed in there lodge on the date mentioned to have intercourse is a vital fact to prove rape. Without taking note of the said 11/18 https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018 lapse/omission, the trial Court has wrongly convicted the accused for the reasons, the victim was 15 years old and carrying a 6 to 8 weeks size product of conception and the accused gone absconding for years together and thereby deliberately made an attempt to prevent the fair and speedy disposal of the case.
15. The Learned Government Advocate (Crl.Side) per contra submitted that, as per the birth certificate (Ex.P-13) issued by the Municipal Authorities, the date of birth of the deceased girl is 23/03/1990. The post mortem certificate Ex.P-5 discloses her uterus was carrying 6 to 8 weeks size product of conception. In both the statements Ex.P-9 and Ex.P-1, the victim has implicated the accused as the cause for her pregnancy and his refusal to marry her is the cause for her to commit suicide. A man said to have committed rape in case he has sexual intercourse with a woman with or without consent, when she is under sixteen years of age. Therefore, the learned Government Advocate (Crl.Side) submitted that, the testimony of the prosecution witnesses who are the mother and relatives of the victim proves the intimacy the accused had with the victim and to corroborate these 12/18 https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018 witnesses, Sujatha PW-13 had spoken about the frequent meetings of the accused and the victim at her telephone booth. The medical evidence proving pregnancy and the dying declaration of the victim that she was forced to commit suicide because she was taken away from the lawful custody of her parents and subjected to intercourse. These proven facts satisfies the ingredients required to convict the accused for offences under Sections 366 IPC and 376 IPC.
16. The Court on careful consideration of the rival submissions and the facts through evidence; and law through citations placed for consideration on either side, note that the deceased was 15 years old studying 10th standard at the time of occurrence. The accused aged 23 years, a Carpenter by profession intimated with the deceased is proved through witnesses. When the parents of the minor girl came to know about their intimacy, they left her at the care of her grandmother at Kunnathur Village. Despite that, the deceased had continued the friendship with the accused. These facts are spoken by PW-1 and PW-2, who are the mother and father of the deceased respectively and also spoken by the victim herself in her 13/18 https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018 statements. The witnesses say, accused had been pressurising the parents of the deceased for marrying their minor daughter, but they have refused.
17. Ex.P-1 as well as Ex.P-9, are the previous statements of the dead person which narrates the cause for the injuries found on her body. These two statements were recorded on 13th and 14th of February, 2005. The Accident Register, which is marked as Ex.D-1 contains a different version about the cause for injury. The girl died on 22/02/2005 and the post mortem doctor PW-10 in the report Ex.P-5 has opines that the death might have caused due to extensive burn and septicaemia. The report also reveals that she was found carrying 6 to 10 weeks foetus. The Birth certificate Ex.P-13 reveals her date of birth is 23/03/1990. Therefore, the time when she conceived (i.e) minimum 6 weeks before her death, certainly she was less than 16 years old. Whoever be the cause for the pregnancy, is liable to be prosecuted for the offence of rape, in view of Section 375 (Sixthly) of IPC. Whether the finding of the trial Court that the appellant herein was the cause of her pregnancy is put to test in this appeal.
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18. The delay in registering the FIR and the contradictions found in the previous statements of the victim are two major points tagged by the learned counsel for the appellant to impinge the finding of the trial Court.
19. As far as delay, this Court finds that the said delay is due to the lapse of the Police. For which the justice cannot suffer. Even after the knowledge of the admission of the victim on 12/02/2005 at about 11.50 a.m. in the Government Hospital at Vaniyambadi, neither the police from Vaniyambadi nor from Yelagiri has acted within reasonable time. However, this Court cannot be oblivious of the fact that, whenever honour of the family is at stake, victim's generally feel hesitant to report it to the police immediately. Most of the cases of these nature will come to light only when the family members gain courage to report at the cost of their family honour or by default when the Medical Officer Report the Medico-Legal Case to the police.
20. In this case, there are some indications that the accused loved the 15/18 https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018 decease and wanted to marry her but her parents refused to his proposal. Probable, the delay in reporting might have also been due to some negotiation in the village. But then, this cannot be any reason to ignore the fact that the deceased aged about 15 years was found conceived. The honest intention of the accused to marry her also not an excuse for him to have sexual intercourse with a 15 years old child, even if it was with consent.
21. Therefore, the only point to be determined is whether he had intercourse with her. This is a fact which is inferential from the post mortem certificate and the statement of the deceased given to the Judicial Magistrate and the police. An act done in secret, will be known only to the persons involved in it. They alone are the witnesses, who have knowledge about the act directly and more competent to speak about it. Here the girl one of the party to the prohibited act under law, has spoken about it to two responsible persons and the same had been reduced into writing by them at two different point of time. Few variations in these two statements cannot dilute the consistency in her statements about the person who made her pregnant. 16/18 https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018
22. A matured adult cannot entice a gullible minor girl and make her to give consent for have sex with him on some pretext or promise. Section 366 IPC proscribes seducing a woman to have illegal intercourse and Section 375 IPC say if such woman is less than 16 years old, even with consent such act of intercourse amounts to rape. Therefore, this Court holds that the finding of the trial Court does not fall short of any reasoning or appreciation of evidence and facts.
23. Hence, this Criminal Appeal is dismissed. The judgment of the trial Court viz., the Sessions Judge, Magalir Neethi Mandram, (Fast Track Court), Vellore, convicting the appellant herein is confirmed.
06.07.2022 Index:yes ari To:
1. The Sessions Judge, Magalir Needhi Mandram, Fast Track Mahila Court, Vellore, Vellore District.
2.The Inspector of Police, All Women Police Station, Thirupattur, Vellore District.
3.The Public Prosecutor, High Court, Madras.17/18
https://www.mhc.tn.gov.in/judis Crl.A.No.361 of 2018 DR.G.JAYACHANDRAN,J.
ari Delivery Judgement made in Crl.A.No.361 of 2018 06.07.2022 18/18 https://www.mhc.tn.gov.in/judis