Madras High Court
Kumar @ Suresh @ Sureshkumar vs The State Represented By on 21 March, 2017
Author: C.T.Selvam
Bench: C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.03.2017 C O R A M THE HONOURABLE MR.JUSTICE C.T.SELVAM Criminal Appeal No.223 of 2014 Kumar @ Suresh @ Sureshkumar S/o.Sethuraman ... Appellant/Accused -vs- The State represented by The Inspector of Police W7 All Women Police Station Anna Nagar, Chennai Crime No.6/2011 ... Respondent/Complainant Criminal Appeal filed under Section 374 r/w 382 of the Code of Criminal Procedure against the judgment of learned Judge, Mahila Court, Chennai, passed in S.C.No.278 of 2013 on 26.03.2014. For Appellants : Mr.K.Selvarangan For Respondent : Mr.M.Mohammed Riyaz Government Advocate [Crl.side] ***** J U D G M E N T
This appeal arises against the judgment of learned Judge, Mahila Court, Chennai, passed in S.C.No.278 of 2013 on 26.03.2014, convicting appellant/accused and sentencing him to undergo 10 years R.I and fine of Rs.10,000/- i/d 3 months S.I, for offence u/s.376 IPC, and 1 year R.I and fine of Rs.1000/- i/d 1 month S.I. for offence u/s. 506 (2) IPC and sentencing him to undergo 1 year R.I and fine Rs.1000/- i/d 1 month S.I for offence u/s.417 IPC. Sentences were directed to run concurrently.
2. The case of the prosecution is that there was a love affair between appellant/A1 and complainant when they worked together in a shop. Appellant/accused, under promise of marrying the complainant, had sexual intercourse with her several times due to which she became pregnant. When informed, appellant prevailed upon the de facto complainant to wait till he got the concurrence of his parents to marry her. By saying so, even during her pregnancy, appellant/accused repeatedly had sexual intercourse. She gave birth to a baby girl. When the complainant insisted on marriage, appellant/A1 threatened her with dire consequences. Thereafter, PW-1 preferred Ex.P1, complaint, on 18.09.2011 at 14.15 hours. PW-16, Inspector of Police, registered a case in Crime No.6 of 2011 on the file of respondent for offences u/s.376, 417 and 506(ii) IPC and recorded the statement of P.W.1. The Printed First Information Report is Ex.P14 and the same was forwarded to Court. Ex.P.3-is the statement recorded u/s. 161(3) Cr.P.C. PW-16, Inspector of Police, took up investigation on 19.09.2011, visited the residence of P.Ws. 2, 3 and 4 and recorded their statements. On 24.09.2011, PW16 visited the residence of P.Ws. 5, 6 and 7 and also other witnesses and recorded their statements. On 30.09.2011, PW16 examined P.W.12- Doctor who treated P.W.1 during her advanced pregnancy and delivered the child and recorded her statement. Appellant had approached this Court with a petition for anticipatory bail and was directed to undergo DNA test. Accordingly, PW16 gave a requisition letter to subject the appellant as well as the complainant for DNA Test. Later, anticipatory bail granted to the appellant was dismissed by this Court on 10.11.2011, and on information, PW16 proceeded to Pulla Avenue, Aminjikarai and arrested the appellant and remanded him to judicial custody on 18.11.2011. Upon completion of investigation and filing of charge sheet informing commission of offences u/s.376 and 506(2) IPC, the case, upon committal, was tried in S.C.No.278 of 2013 on the file of learned Sessions Judge, Mahila Court, Chennai.
3. Prosecution examined PWs.1 to 16 and marked Exs.P1 to P14. None were examined on behalf of the defence nor were any exhibits marked. On questioning u/s.313 Cr.P.C., the accused denied charges. Learned trial Judge, on appreciation of the evidence, under judgment dated 26.03.2014, convicted and sentenced the appellant as aforestated. There against, the present appeal.
4. Heard learned counsel for appellant and learned Government Advocate [Crl.side] as also perused the records.
5. The evidence of P.W.1/victim is that on four occasions the appellant/accused took her to a room occupied by his friend P.W.8 and they indulged in sexual interplay, she missed her menstrual cycle on 22.10.2010 and then learnt she was five months pregnant. On being informed by her sister P.W.3 and herself, accused sought time to obtain permission of his parents towards marrying her. P.W.2 is the mother of P.W.1, while as stated, P.W.3 is her sister, P.W.4 her father,P.W.5 another sister, P.W.6 her friend and P.W.7 a relative of P.W.1. They have all spoken in such manner as would indicate a relationship between the appellant/accused and P.W.1 and his being the cause of her pregnancy. P.W.1 has given birth to a girl child on 14.09.2011. The evidence of P.W.8- friend of appellant/accused whose room allegedly was used by the appellant/accused and P.W.1 towards lustful fulfilment is of utmost importance. He has deposed to not having been examined by the Investigating Officer and that the appellant/accused never had individual access to the room occupied by him and three others.Ex.P.13 is the DNA report and as spoken to by P.W.15-Doctor, the same has established that the appellant/accused was not the father of the child. Although P.W.1 was, as rightly found by Court below and on the basis of ExP.2- School Transfer certificate which informs her date of birth to be 21.07.1995, below 16 years of age when she was subjected to sex since she has given birth on 14.09.2011 and her having been so subjected would attract the offence of rape punishable u/s. 376 IPC, from the fact that Ex.P.13-DNA report establishes that the appellant/accused was not the father of the child, it is seen that P.W.1, though of tender age, was given to promiscuity. There is nothing more than suspicion against the appellant accused and on the basis of tale told by her to her family members. In the circumstances of the case, it is but to be expected that her immediate family members would speak in keeping with her tale. It will be highly hazardous to base a conviction thereon. The case will remain one of whodunnit.
The Criminal Appeal shall stand allowed. The conviction and sentence passed by learned learned Judge, Mahila Court, Chennai, passed in S.C.No.278 of 2013 on 26.03.2014, is set aside and appellant is acquitted of all charges. Fine amount, if any, paid shall be refunded Bail bond(s), if any, executed shall stand cancelled.
21.03.2017.
Internet:Yes C.T.SELVAM, J kmi/kpr To
1.The Sessions Judge, Mahila Court, Chennai.
2.The Inspector of Police, W-7, All Women Police Station, Anna Nagar, Chennai
3.The Public Prosecutor, High Court, Chennai.
Criminal Appeal No.223 of 2014 21.03.2017