Madras High Court
Prakash vs State By Inspector Of Police on 24 November, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.A.No.150 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.11.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.150 of 2019
Prakash .... Appellant
Vs
State by Inspector of Police,
W-16, All Women Police Station,
Pulianthope, Chennai – 600 012.
Crime No.2 of 2016 .... Respondent
Prayer: Criminal Appeal filed under Section 374 of Code of Criminal
Procedure, to set aside the Judgment of the learned Judge of the Special
Court for cases under POCSO Act, Chennai made in S.C.No.179 of 2017
dated 08.03.2019, convicting the appellant herein for the offence under
Section 417 IPC and sentencing him to undergo one year S.I. And to pay
fine of Rs.5,00,000/- in default to undergo further period of 3 months and
the period of remand if any is ordered to be set off against the sentence
imposed and the fine amount of Rs.5,00,000/- (Rupees Five Lakhs only)
is ordered to be paid to the victim woman as compensation under Section
357(1) Cr.P.C. and acquit the appellant herein from the said charges.
For Appellant : S.Mohana Vadivelan
For Respondent : Mr.A.Gopinath
Government Advocate (Crl.Side)
JUDGMENT
https://www.mhc.tn.gov.in/judis Page 1 of 13 Crl.A.No.150 of 2019 This Criminal Appeal is directed as against the Judgment dated 08.03.2019 passed in S.C.No.179 of 2017 on the file of the Sessions Judge, Mahila Court, Chennai, thereby convicted the appellant for the offence punishable under Section 417 of IPC.
2. The case of the prosecution is that the victim is affected by Polio and her both legs became dis-functional. The accused is none other than her own maternal uncle. Being close relative, he had acquittance with the victim as well as the brother of the victim from his school days. From the year 2005, the victim and the accused were fell in love and the accused assured that he would marry her. While being so, during the year 2011, when the family members of the victim had gone to attend a condolence by leaving the victim in the house, the accused came into her house on the pretext that he was directed to take care of the victim as all the family members had gone to attend the condolence of their relatives. Thereafter, the accused went away and purchased some cool drink, he went to kitchen and poured the cool drinks in a tumbler and mixing some drugs. It was given to the victim and after consuming the same, she became unconscious. Thereafter, the accused had taken the victim to the bed room and had sexual intercourse, without her https://www.mhc.tn.gov.in/judis Page 2 of 13 Crl.A.No.150 of 2019 knowledge, while she was unconscious. Thereafter, he informed that he had sexual intercourse with her and also assured that he would marry her. He also assured that after marriage of his sister he would marry her. In fact, he informed the same in front of his mother. However, his mother did not accept the same. He also informed the victim not to disclose anybody, since after getting permission from his house and he would marry her. She waited till 2014. In the year 2014, the sister of the accused got married and immediately, the victim called upon the accused to marry her. Thereafter, he informed that he fell in love with another girl and he could not marry her. Immediately, it was informed to the parents of the victim, who lodged a complaint.
3. On the said complaint, the respondent registered an FIR in Crime No.2 of 2016 for the offence punishable under Section 376, 417 and 506(ii) of IPC. After completion of investigation, the respondent filed a final report and the same has been taken cognizance by the Trial Court in S.C.No.179 of 2017
4. In order to bring home the charges, the prosecution had examined P.Ws. 1 to 9 and marked Exs.P1 to 10. On the side of the accused, no one was examined and no document was marked. https://www.mhc.tn.gov.in/judis Page 3 of 13 Crl.A.No.150 of 2019
5. On perusal of the oral and documentary evidence, the Trial Court found the appellant guilty for the offence punishable under Section 417 of IPC and sentenced him to undergo one year simple imprisonment and ordered fine of Rs.5,00,000/- to be paid to the victim. Aggrieved by the same, the present appeal.
6. The learned counsel appearing for the appellant would submit that there was a huge delay in lodgement of the compliant. Even according to the prosecution, the occurrence had taken in the year 2011, whereas the complaint was lodged in the year 2015. Therefore, the delay in registering the FIR is fatal to the case of the prosecution. There was a contradiction between the prosecution witnesses, which would affect the entire case of the prosecution. Even then the Court below, without considering the same, convicted the appellant for the offence punishable under Section 417 of IPC.
7. Admittedly, the victim fell in love with the accused and had physical relationship in the year 2011. At the time of alleged physical relationship she was a majority and she knows what is the consequence of the physical relationship. Therefore, it is nothing but concessional sex https://www.mhc.tn.gov.in/judis Page 4 of 13 Crl.A.No.150 of 2019 and the appellant never promised to marry her and had physical relationship. Therefore, the victim freely consented to have sexual intercourse for the past several years and as such, her consent was not in consequence of any misconception of fact. Therefore, the Trial Court ought not to have convicted the appellant for the offence punishable under Section 417 of IPC .
8. In support of his contention, he relied upon the Judgement in Criminal Appeal No.277 of 2014 dated 07.03.2017 in the case of S.Dinesh Kumar Vs. State represented by The Inspector of Police, W6, All Women Police Station, Ayanavaram, Chennai. This Court, on relying upon the Judgment reported in 2003 (4) SCC 46 in the case of Uday Vs. State of Karnataka, acquitted the accused for the reason that the victim freely, voluntarily and consciously consented to have sexual intercourse with the accused and her consent was not in consequence of any misconception of fact.
9. Per contra, the learned Government Advocate (Criminal Side) submitted that the victim, cogently and truely, deposed that she fell in love with the accused from the year 2005. While being so, in the year 2011, when her parents went away to attend a condolence of their https://www.mhc.tn.gov.in/judis Page 5 of 13 Crl.A.No.150 of 2019 relatives. The accused entered into the house of the victim and admistered some drugs to the victim and had physical intercourse, without the knowledge of the victim. Therefore, the charge under Section 417 of IPC clearly attracted as against the accused. However, the Trial Court found the appellant guilty for the offence punishable under Section 417 of IPC. He further submitted that the alleged occurrence happened in the year 2011. He assured to get marry after completion of his sister's marriage. In the year 2014, his sister got married and even then he refused to marry the victim. Therefore, immediately on refusal of marriage, the victim was informed to her parents and lodged a complaint. Therefore, there was no delay in lodgement of complaint. Hence, the Trial Court rightly convicted the appellant and it does not warrant any interference by this Court.
10. Heard, Mr.Mohana Vadivelan, learned counsel appearing for the appellant and Mr.A.Gopinath, learned Government Advocate (Criminal Side) appearing for the respondent and perused the materials available on record.
11. Admittedly, the victim is affected by Polio and both her legs became dis-functional. The accused is none other than her own maternal https://www.mhc.tn.gov.in/judis Page 6 of 13 Crl.A.No.150 of 2019 uncle. Both fell in love from the year 2005. He is junior to the victim. He was the class-mate of the victim's brother. Therefore, they were acquainted very closely and fell in love. While being so, in the year 2007, when the parents of the victim had gone to a condolence of the relative, the accused came to their house as he was directed to look after the victim. Using this circumstance, he purchased some drugs and administered to the victim by adding it in the cool drink. After consuming the said cool drink, she fell unconscious and thereafter she was taken to the bed room by the accused and then he committed sexual assault on the victim. Thereafter, he was informed that he had sexual intercourse with her. Further he assured that he will marry her and requested her not to disclose to anybody. Believing the words of the accused, the victim was waiting for their marriage. The accused also assured that after the marriage of his sister, he would marry her. In the year 2014, his sister got married and when the victim insisted him to marry, he refused and married another person. Immediately, the victim informed the parents and lodged a complaint.
12. A perusal of the deposition of P.W.1 reveals that she had categorically and cogently deposed all the facts from the year 2005. No https://www.mhc.tn.gov.in/judis Page 7 of 13 Crl.A.No.150 of 2019 doubt that the victim fell in love with the accused. The accused purchased some drug and added in the cool drink. It was administered to the victim and thereafter he had sexual intercourse, when the victim was unconscious and without her consent. It shows the attitude or intention of the accused viz.,, only to have physical relationship. He assured that he would marry her, as such, the victim failed to disclose to anybody and failed to lodge any complaint.
13. P.W.2, who is the father of the victim, was examined and reiterated the evidence of P.W.1 and corroborated the same. He also deposed that when the accused refused to marry the victim, there was a panchayat held between them. In the panchayat, he refused to marry the victim. The mother of the victim was examined as P.W.3. She also deposed that the victim is a physically challenged person and affected by Polio. On the assurance of the marriage, her own brother's son viz., the accused, committed sexual assault on the victim by administering the drugs with the cool drink. The brother of the victim was examined as P.W.4, he also deposed that the accused was studying with P.W.4 and also reiterated the same evidence of victim.
https://www.mhc.tn.gov.in/judis Page 8 of 13 Crl.A.No.150 of 2019
14. After registration of FIR, the victim was subjected for medical examination. P.W.6 examined her and certified that the victim was affected by Polio and both her legs are dis-functional. The Doctor also recorded the statement of the victim that she was sexually assaulted by her relative. Her deposition is as follows mtUf;F ,uz;L fhy;fSk; nghypnah nehahy; ghjpf;fg;gl;L braypHe;J ,Ue;jJ/ mtiu tprhhpj;j nghJ brg;lk;gh; 2012 thf;fpy;
jd;id tYf;fl;lhakhf kJ bfhLj;J
mtnuhL bjhpe;j egh; clYwt[ bfhz;ljhf
Twpdhh;/ me;j rkaj;jpy; mth; RaepidnthL
,y;iy vd;Wk; Twpdhh;/ nkYk; 4.5 Kiw
mtUila MZWg;ig bfhLj;J Xuy; brf;rpy;
<LgLj;jpajhft[k; nkYk; ifahy; masturbation
bra;a brhd;djhft[k; Twpdhh;/ ,Wjpahf
clYwt[ bfhz;lJ 3 tUlj;jpw;F Kd;g[ vd;W
Twpdhh;/ mtiu ghpnrhjid bra;j nghJ
mtUf;F btspg;g[wk; fha';fs; vJt[k; ,y;iy/
fd;dpj;jpiu fpHpe;J ,Ue;jJ/ mtUila
gpwg;g[Wg;gpy; xU tpuy; mDkjpf;Fk; mstpy;
,Ue;jJ/ ghjpf;fg;gl;l egh; clYwt[f;F
cl;gLj;jg;gl;oUf;ff;TLk; vd;W ehd; fUj;Jiu tH';fpndd;/”
15. Thus, it is clear that on the pretext of marriage, the accused https://www.mhc.tn.gov.in/judis Page 9 of 13 Crl.A.No.150 of 2019 continuously had physical relationship with the victim. The accused also assured to marry her and requested the victim not to disclose to anybody. Therefore, there was no delay in lodgement of complaint. However, in the case of sexual assault, the delay in lodgement of complaint is immaterial. In fact, in the case on hand, the victim waited till the completion of accused sister's marriage and when the accused refused to marry her, immediately she lodged a complaint.
16. The Hon'ble Supreme Court of India and this Court repeatedly had held that the victim freely, voluntarily and consciously consented to having sexual intercourse with the accused and her consent was not in consequence of any misconception of fact. In the case on hand, the accused administered some drug in the cool drink to the victim. Thereafter, when she was unconscious, without her consent, without her knowledge, the accused had sexual intercourse with the victim. Thereafter, he disclosed to the victim and assured that he would marry her and requested the victim not to disclose the same. Therefore it is a clear case of cheating.
17. In case of sexual offences, the criteria may be different https://www.mhc.tn.gov.in/judis Page 10 of 13 Crl.A.No.150 of 2019 altogether. As honour of the family is involved, its members have to decide whether to take the matter to the Court or not. In such a fact situtation, near relations of the victim may take time as to what course of action should be adopted. Thus, delay is bound to occur. This Court has always taken that ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the FIR in a case of this nature is a normal phenomenon. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR.
18. In view of the above, this Court finds no merits in this appeal and nothing warrants interference in the order passed by the Trial Court. Accordingly, this Criminal Appeal stands dismissed.
24.11.2022 Index : Yes/No Internet : Yes/No Speaking/Non Speaking order Lpp To https://www.mhc.tn.gov.in/judis Page 11 of 13 Crl.A.No.150 of 2019
1. The Sessions Judge, Mahila Court, Chennai.
2. The Inspector of Police, W-16, All Women Police Station, Pulianthope, Chennai – 600 012.
3. The Public Prosecutor, High Court, Madras.
G.K.ILANTHIRAIYAN. J, Lpp Crl.A.No.150 of 2019 https://www.mhc.tn.gov.in/judis Page 12 of 13 Crl.A.No.150 of 2019 24.11.2022 https://www.mhc.tn.gov.in/judis Page 13 of 13