Madras High Court
Geetha vs State By
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.R.C. Nos.740 & 748 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: .07.2022
CORAM
THE HONOURABLE Mr.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl. R.C. Nos.740 and 748 of 2021
and Crl.M.P. No.12242 of 2021
1.Geetha
2.Vivekanand .. Petitioners in
Crl. R.C. No.740/2021
1.Keziah .. Petitioner in Crl.R.C.
No.748/2021
Vs.
1.State by
Inspector of Police
W-20, All Women Police Station
Saidapet, Chennai - 15
2.T.Sumathi
Rep. by her father and authorised
Power Agent R.M.Thirumani .. Respondents in both
the Crl.R.Cs.
PRAYER : Criminal Revision Cases filed under Section 397 r/w Section
401 of the Criminal Procedure Code, 1973 to call for the records in
Crl.M.P. Nos.5751 & 5752 of 2021 in S.C. No.98 of 2021 dated
28.09.2021 passed by the learned Sessions Judge, Mahila Court,
Chennai.
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Crl.R.C. Nos.740 & 748 of 2021
For Petitioners in
both Crl.R.Cs. : Mr.Manoj Sreevalsan
For R1 in both : Mr.S.Vinoth Kumar,
Crl.R.Cs. Govt. Advocate (Crl. Side)
For R2 in both : Mr.V.K.Sathiyamoorthy
Crl. R.Cs.
COMMON ORDER
The complaint given by the second respondent in these criminal revision cases in Crime No.2 of 2020 on the file of the All Women Police Station, Saidapet, was investigated and a final report was filed proposing totally four accused guilty for the offences under Sections 417, 342, 365, 313, 375, 376, 509 and 506(i) of IPC r/w Section 34 of Indian Penal Code.
2. The gist of allegations against the first accused is that by conducting an engagement, promising to marry the de-facto complainant, the first accused had physical intercourse and impregnated the de-facto complainant. Thereafter, when the de-facto complainant went back to Canada, the first accused, over phone pressurised her to come back otherwise threatening to cancel the wedding and with the help of his friend, the second accused __________ https://www.mhc.tn.gov.in/judis Page 2/16 Crl.R.C. Nos.740 & 748 of 2021 administered pills to the de-facto complainant and aborted the foetus. The third accused being the mother of the first accused and the fourth accused being the brother of the first accused had not only joined hands with the first accused in the whole episode and have categorically refused to perform the marriage and also abused the de- facto complainant.
3. The final report filed by the police is now taken on file as S.C. No.98 of 2021 and is pending before the learned Sessions Judge, Mahila Court, Chennai. The second accused in the case, namely Keziah, the friend of the first accused had filed Crl.M.P. No.5752 of 2021 for discharge. The third accused, namely Geetha being the mother of the first accused, the fourth accused, namely Vivekanand being the brother of the first accused, filed Cr.M.P. No.5751 of 2021 for their discharge. The learned Sessions Judge, Mahila Court, Chennai, took up both the petitions and by a common order dated 28.09.2021, dismissed both the petitions for discharge. As against which the accused Nos.3 and 4 have filed Crl.R.C. Nos.740 of 2021 and the accused No.2 has filed Crl.R.C. No.748 of 2021 and as such both the revision cases were taken up together for arguments and are disposed of by this common order.
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4. Heard Mr.Manoj Sreevalsan, learned counsel appearing for the petitioners, Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side) and Mr.V.K.Sathiyamoorthy, learned counsel counsel appearing for the second respondent/de-facto complainant in both the revisions and perused the materials available on record.
5. The learned counsel appearing on behalf of the petitioners firstly making submissions on behalf of accused No.2, who is only a friend of the first accused submitted that at the outset, the offence under Sections 417, 376, etc. will not be made out as against the said petitioner and the only allegation is that she aided the first accused in aborting the foetus. According to the learned counsel for the petitioners, the only allegations in the final report filed by the police are:
(i) LW-1 has stated that at Ramachandra Hospital on 19.08.2019, the second accused was also present and she spoke to the de-facto complainant that if she continues the pregnancy, the first accused would abandon her and therefore, it is good for her to go for abortion;
(ii) Again LW-1 stated that in the flat where she was taken by the first accused, the second accused and her husband were there and __________ https://www.mhc.tn.gov.in/judis Page 4/16 Crl.R.C. Nos.740 & 748 of 2021 both the first and second accused had threatened her and confined her in a room in the said flat belonging to the second accused from 19.08.2019 to 23.08.2019;
(iii) Again LW-1 had stated that upon threat she took the pills administered by the first and second accused and that they threatened and saw to that she ate all the pills;
(iv) LW-2, LW-3, LW-4 and LW-5 has repeated only the said statement as hearsay witnesses and therefore, there is nothing in their statements;
(v) LW-6 is again a hearsay witness, who says that the prosecutrix cried to her that the first accused and the second accused forcefully confined her in the room from 19.08.2019 to 23.08.2019 and aborted her pregnancy.
6. Citing the above allegations, the learned counsel would submit that, it may be seen that the gist of allegations is that she also forced the de-facto complainant to consume the pills. On the contrary, the prosecution has also produced Whats App chat. A perusal of the Whats App chat, which is also filed along with the final report falsifies the above allegations. It is seen that the de-facto complainant came on her own by a taxi to the second accused flat. The conversation between both does not in any manner, indicate that the second accused either administered the pills or forced her to abort the child. __________ https://www.mhc.tn.gov.in/judis Page 5/16 Crl.R.C. Nos.740 & 748 of 2021 On the contrary, the conversation is very cordial and is in a manner thanking the second accused for help and as a matter of fact, it is the second accused who was unwell at that point of time and therefore, only to wreak vengeance against the first accused, the second accused is unnecessarily roped in. The second accused being a lady living with her own family would be put to gravest prejudice, if she is made to face trial, as none of the offence alleged against her is made out ex- facie. Therefore, by relying upon the judgment of the Hon'ble Supreme Court of India in Sajjan Kumar vs. Central Bureau of Investigation1, the learned counsel appearing for the petitioners would submit that, at least there must be materials for strong suspicion and in this case, even the materials on record if left un- controverted would not even create a strong suspicion much less prima-facie material for conviction with regard to any of the offence and therefore, prayed for discharge.
7. Again the learned counsel making his submissions in respect of the third and fourth accused would submit that as far as the accused 3 and 4 is concerned, the allegations as contained in the final report are:
(i) LW-1 had stated that the mother of the first accused had 1 (2010) 9 SCC 368 : Manu /SC/0741/2010 __________ https://www.mhc.tn.gov.in/judis Page 6/16 Crl.R.C. Nos.740 & 748 of 2021 contacted her over phone and stated that as long as she is alive the marriage will not take place and that she will kill the de-facto complainant and that she has clearly instructed her son to the said effect and therefore, it is clear that only for the physical pleasure of her son, she also joined him in performing the wedding engagement and the whole act turns out to be a drama;
(ii) LW-1 has again stated that when she spoke to the third accused over phone on 06.07.2019, she specifically asked whether they had physical relationship. Upon LW-1 fearing the same, she has stated that even everything is over, she and her both the sons know how to handle the situation and cut the call. The telephone number details is also mentioned in LW-1's statement;
(iii) Again LW-1 had stated that the third accused had confronted her for supposing she had a physical relationship with an OLA driver whether she can ask for marrying the driver and told her that she better conceal the relationship with her son and leave it and get married to some third party and she said that her son being a male he will be only like that;
(iv) LWs.2 to 5 have also repeated the same statement and are hearsay witness.
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8. As far as the fourth accused is concerned, the learned counsel would state that LW-1 in her statement has stated that the fourth accused also contacted her over phone and threatened to kill her, if the marriage takes place inspite of him.
9. On various dates an unidentified person spoke from two phone numbers and threatened the de-facto complainant as to whether she is in India or not and that they will get the information from Detective Agency and by getting information from detective agency de-facto complainant found that the phone numbers belong to the second and fourth accused. This apart, LW-3 had also spoken about the fact that when they were walking along Jawaharlal Nehru 100 feet road, all the four accused had come in a car and had threatened that they will kill her. The said allegation is also repeated by LW-5
10. Finally LW-1 had also stated that the decision taken by the first accused Naresh to abort the child was a collective decision taken by A1, A4 and A5. Therefore, he would submit that even the perusal of the above statements, there is absolutely no materials to proceed against A4 and A5 so that the charges can be framed against them. __________ https://www.mhc.tn.gov.in/judis Page 8/16 Crl.R.C. Nos.740 & 748 of 2021
11. Opposing the said submissions, Mr.V.K.Sathiyamoorthy, learned counsel appearing for the de-facto complainant would again submit that apart from the above statements mentioned by the learned counsel for the petitioners, there are also other statements and materials. He would submit that LW-1 has spoken to the effect that A1 had categorically mentioned that if only abortion is done he will marry the complainant and A1 had even threatened to commit suicide, if the de-facto complainant does not come back from Canada. Extracting certain Whats App messages from A2 wherein she had said that she had been asked to come back, she was asked to take such decisions, and that the de-facto complainant would submit that the same would be further proof that the pressure exerted by A2. He would submit that Whats App conversation produced by the learned counsel for the petitioners is not the entire conversation and upon reading the entire conversation, it would be clear that the de-facto complainant clearly was trapped and was confined inside the room. He would further point out the Whats App conversation dated 21.08.2019 wherein the second accused has asked whether the de-facto complainant is alright and the de-facto complainant has replied that it is her body but all of them are taking authority without her consent which would go to prove the pressure exerted by first and second accused. Again on 05.09.2019, the second accused has confirmed as __________ https://www.mhc.tn.gov.in/judis Page 9/16 Crl.R.C. Nos.740 & 748 of 2021 to how is her health and also ensured that she got her periods and the second accused clearly mentioned in the conversation as to whether stomach ache was due to periods or tablets. There is evidence to show that the tower location of first and second accused was at Saveetha hospital on 28.03.2019 when they took the de-facto complainant. He would submit that when telephonic talks were made to the complainant by way of a threat, a complaint was given to the Cyber Cell and the said copy of the complaint is already produced as a material in which the numbers were traced out as belonging to the second accused and the fourth accused. Again LW-1 has also spoken about the conversation on 01.10.2019 in a manner as to portraying the de-facto complainant of bad conduct.
12. The learned counsel again listing of a set of allegations against the accused 3 and 4 would submit that apart from the allegations mentioned by the learned counsel for the petitioners, the call records, Whats App call records are produced and the evidence relating to performance of betrothal is also produced. The fourth and second accused were very much part of the engagement ceremonies. Third and fourth accused were also present in the temple. The threat given by fourth accused has been specifically spoken to by LW-1 and other witnesses. Third and fourth accused have also joined A1 in __________ https://www.mhc.tn.gov.in/judis Page 10/16 Crl.R.C. Nos.740 & 748 of 2021 causing disappearance of the scan report and the Whats App message sent by A1 and A2 also reveals involvement of A3 and A4 in providing pills and therefore submitted that in view of the overwhelming materials on record, the petitioners cannot be discharged at this stage.
13. Mr.S.Vinoth Kumar, learned Government Advocate (Crl.Side) appearing for the State, again taking this court through the final report filed on behalf of the prosecution would submit that, admittedly in this case, there is overwhelming materials on record to establish various offences against the accused and submitted that the trial court has rightly refused to discharge the petitioners.
14. Before considering the said submissions, the learned counsel on either side had relied upon the judgment of the Hon'ble Supreme Court in Sajjan Kumar vs. Central Bureau of Investigation2, in which the law relating to exercise of jurisdiction under Sections 227 and 228 of Cr.P.C. is laid down in detail and it is useful to extract paragraph 17 of the said judgment.
"17. Exercise of jurisdiction under Sections 227 & 228 of Cr.P.C.
2 (2010) 9 SCC 368 : MANU/SC/0741/2010 __________ https://www.mhc.tn.gov.in/judis Page 11/16 Crl.R.C. Nos.740 & 748 of 2021 On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principle emerge:
(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.
(iii) The Court cannot act merely as a Post Office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required tobe proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at __________ https://www.mhc.tn.gov.in/judis Page 12/16 Crl.R.C. Nos.740 & 748 of 2021 their face value discloses the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether trial ill end in conviction or acquittal.
Thus, it must be seen that, at this stage, the court has to sift through the materials and consider whether by the materials and document on record by taking at their face value discloses the existence of the ingredients constituting the alleged offences.
15. In this case, LW-1's statement taken on face value makes the allegations against these petitioners also and though not for the offence of rape, but for the other offences of cheating, causing her to abort the foetus and unlawfully restraining her. Learned counsel for the petitioners would submit that as against the statement of LW-1 the court can also cumulatively take into account the Whats App material which points out that many of the allegations made by LW-1 may not be true as far as the second accused is concerned. To the __________ https://www.mhc.tn.gov.in/judis Page 13/16 Crl.R.C. Nos.740 & 748 of 2021 same, the learned counsel appearing on behalf of the second respondent would point out that some of the Whats App conversations which points out the involvement of the second accused in the matter of abortion. Therefore, by a sifting of the Whats App material, at this stage, the court is unable to discredit and hold LW-1's statement as improbable, but it requires a proper appreciation of the said Whats App chats. Therefore, even though there are some Whats App chats prima facie it may be in favour of the second accused, the same cannot be taken isolatedly so as to discredit the other witnesses. In this case, it requires the exercise of the entire evidence coming on record and appreciating the evidence so as to come to the conclusion. Therefore, a mere sifting of the material by taking them on face value, I am of the view that there are prima facie materials to proceed against the second accused.
16. A reading of the statements of the listed witnesses and the connected call records etc. also point out prima facie materials for certain offences against accused Nos.3 and 4 also. I am therefore of the view that this is not a case where the petitioners/accused 2, 3 and 4 can be discharged outright. However it would be open for them to make such statements before the trial court at the time of framing of charges and the trial court will frame the charges against the __________ https://www.mhc.tn.gov.in/judis Page 14/16 Crl.R.C. Nos.740 & 748 of 2021 concerned accused in respect of the concerned offence, as the case may be and when there are materials pointing out towards threat, conduct of betrothal and therefore joining the first accused in not going ahead with the marriage, taking of role in conversing with the de-facto complainant regarding her abortion, it can safely be held that there are enough materials, which disclose grave suspicious against the accused to frame charge and proceed with the trial.
17. In that view of the matter, these criminal revisions are dismissed as without any merits. It is made clear that the petitioners/accused 2 to 4 can take all the pleas taken in this discharge applications both at the time of framing of charge and during the trial and the same shall be considered on merits in accordance with the law and the findings of this court in this order is only for the purpose of deciding the discharge application and will not have a bearing on the merits of the case during trial. Consequently, the connected criminal miscellaneous petition is closed.
.07.2022
Index : Yes / No
Internet : Yes / No
Asr
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Crl.R.C. Nos.740 & 748 of 2021
D.BHARATHA CHAKRAVARTHY, J.
Asr
To
1.The Sessions Judge, Mahila Court, Chennai
2.The Inspector of Police W-20, All Women Police Station Saidapet, Chennai - 15
3.The Public Prosecutor, High Court, Madras Crl.R.C. Nos.740 & 748 of 2021 and Crl. M.P. No.12242 of 2021 Date : .07.2022 __________ https://www.mhc.tn.gov.in/judis Page 16/16