Madras High Court
Satheeskumar vs The State Rep By on 2 March, 2021
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.A.No.622 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 10.02.2021
PRONOUNCED ON : 02.03.2021
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A.No.622 of 2019
Satheeskumar,
S/o.Karuppusamy. ... Appellant
Vs.
The State Rep by,
Inspector of Police,
Mettupalayam Police Station,
Mettupalayam,
Coimbatore District. ... Respondent
PRAYER: Criminal Appeal filed under Section 378 of the Code of
Criminal Procedure, to call for the records and set aside the order dated
26.07.2019 passed in S.C.No.176 of 2017 on the file of Sessions Judge,
Mahila Court Mahalir Neethimandram, Coimbatore.
For Appellant : Mr.N.Chinnaraj
For Respondent : Mr.R.Suryaprakash
Government Advocate [Crl. Side]
*****
JUDGMENT
This Criminal Appeal has been filed against the conviction and sentence imposed by the learned Sessions Judge, Mahila Court, Mahalir Page No.1 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 Neethimandram, Coimbatore in S.C.No.176 of 2017, dated 26.07.2019.
2.The respondent Police have registered a case in Crime No.883 of 2012 for offence under Sections 366 IPC against the appellant on the complaint [Ex.P1] given by PW.1. After completing investigation, the respondent Police laid a charge sheet before the learned District Munsif- cum-Judicial Magistrate, Mettupalayam and same was taken on file as P.R.C.No.8 of 2014. After completing the formalities, the case was committed to the learned Principal Sessions Judge, Coimbatore and the same was taken on file as S.C.No.176 of 2017. Since the appellant/accused committed the offence against women, the case was made over to the Mahila Court, Mahalir Neethimandram, Coimbatore.
3.After completing the formalities under Section 207 Cr.P.C., since there was a prima facie material to frame charges against the appellant, the Special Court, farmed charges under Section 366(A) of IPC and Section 9 of the Prohibition of Child Marriage Act, 2006. Page No.2 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019
4.After completing the trial and hearing the arguments advanced on either side and also considering the oral and documentary evidence, the Special Court found guilty of the appellant for offence punishable under Sections 366(A) of IPC and Section 9 of the Prohibition of Child Marriage Act, 2006. For offence under Section 366(A) IPC, the appellant was sentenced to undergo Rigorous Imprisonment for ten years and to pay a fine of Rs.1,000/-, in default to undergo one year Rigorous Imprisonment and for offence under Section 9 of the Prohibition of Child Marriage Act, 2006, the appellant was sentenced to undergo two years Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo six months Rigorous Imprisonment.
5.Challenging the above said Judgment of conviction and sentence, the appellant has filed the present appeal before this Court.
6.The learned counsel for the appellant would submit that though the case of the prosecution is that the victim girl (PW.2) was kidnapped by the appellant in front of the school gate, no independent witness was examined by the prosecution to prove the same. The learned counsel Page No.3 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 would further submit that one of the allegation is that the appellant tied Thali on the victim girl, but the respondent Police during investigation did not recover Thali to prove the marriage between the victim girl and the appellant. Therefore, Section 9 of Prohibition of Child Marriage Act, 2006, is not made out against the appellant. The other allegation is that the victim girl and the appellant were stayed in the house of the appellant's uncle at Gopi Kurumanthur, but the said uncle of the appellant was not examined by the prosecution as witness in this case. Since the victim girl and the appellant had fell in love and the same was questioned by the father (PW.1) of the victim girl, she voluntarily came out from her house and accompanied the appellant. Hence, this is the case of elopement not kidnapping. Therefore, Section 366(A) of IPC is not made out against the appellant.
7.The learned counsel for the appellant would further submit that the trial Court has wrongly come to the conclusion that the age of the victim is only 13 years, but as per the Radiologist Report, she might have been in between 15 to 17 years. No witnesses have spoken that the victim girl was seduced by the appellant to illicit intercourse with the Page No.4 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 person other than the appellant. Therefore, the ingredients of Section 366(A) of IPC is not made out against the appellant. There are material contradictions between the prosecution witnesses, the trial Court failed to consider the same. Further, some of the witnesses examined by the prosecution have turned hostile and have not supported the case of the prosecution. The trial Court without considering these aspects, merely convicted the appellant on the ground of sympathy, which warrants interference of this Court. In this case, both the charges under Section 366(A) and Section 9 of Prohibition of Child Marriage Act, 2006 were not proved beyond all reasonable doubt. The trial Court misunderstood the scope of Section 366(A) IPC and wrongly interpreted the same. The prosecution has not established the marriage between the appellant and the victim girl and therefore, the conviction recorded under Section 9 of Prohibition of Child Marriage Act, 2006 is unwarranted.
8.The learned counsel for the appellant would further submit that the trial Court failed to appreciate the oral and documentary evidence and hence, the conviction and sentence recorded by the learned Sessions Judge is unwarranted, which needs interference of this Court. Page No.5 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019
9.The learned Government Advocate [Crl. Side] appearing on behalf of the respondent Police would submit that the victim girl (PW.2), at the time of occurrence, aged about 13 years and she was studying 9 th standard in Mahajana School. On 27.11.2012, at about 09.00 a.m., when the victim girl was on the way to school, the appellant came nearby the school and made a false promise that he would marry her and after that he would make her study and, took her to Annur Sivan Temple and tied Thali outside the temple, from there took her to his uncle's house at Gopi Kurumanthur. The appellant took the victim girl without the knowledge and consent of her parents/natural/lawful guardians. Therefore, the appellant has committed the offence under Section 366(A) of IPC. While recording the statement under Section 164 Cr.P.C., and while deposing, the victim girl has stated that the appellant made a false promise and took her to Annur Sivan Temple and tied Thali and kept her in his uncle's house for more than 10 days. Since the victim girl was aged about 13 years at the time of marriage, the appellant has committed the offence under Section 9 of Prohibition of Child Marriage Act, 2006. Page No.6 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019
10.The learned Government Advocate [Crl. Side] would further submit that the contradictions pointed out by the learned counsel for the appellant are not material contradiction and it would not go to the root of the case. PW.1, the father of the victim girl made a complaint (Ex.P1) that on 27.11.2012, his daughter went to school at about 09.00 a.m., and not returned back to home in the evening and he searched her for three days and after that he gave a complaint. On receipt of the complaint (Ex.P1), the respondent Police registered a case and on 10.12.2012 caught hold the appellant along with the victim girl and when enquired, the victim girl has stated that the appellant took away her nearby the school gate and told that he would marry her and after that he would make her study and he tied Thali in Annur Sivan Temple and kept her in his uncle's house at Gopi Kurumanthur from 27.11.2012 to 10.12.2012. Therefore, the appellant has committed the offence under Section 366(A) and Section 9 of the Prohibition of Child Marriage Act, 2006. Thus, the learned Sessions Judge has rightly appreciated the oral and documentary evidence produced by the prosecution and convicted the appellant, which does not warrant interference of this Court.
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11.Heard the learned counsel appearing for the appellant and the learned Government Advocate [Crl. Side] appearing for the respondent and also perused the materials available on record.
12.The case of the prosecution is that at the time of occurrence, the victim girl was aged about 13 years and she was studying 9 th standard in Mahajana School and residing with her parents. On 27.11.2012, at about 09.00 a.m., when the victim girl was going to school, the appellant waylaid her and made a promise that he would marry her and and after that he would make her study and took her to Annur Sivan Temple and tied Thali and kept the victim girl in his uncle's house at Gobi Kurumanthur. Since the victim girl did not return back to home, the parents made search and finally, PW.1, the father of the victim girl lodged a complaint (Ex.P1) to the respondent Police that his daughter went to school at about 09.00 a.m., and not returned back to home in the evening.
13.Based on the complaint (Ex.P1) given by PW1, an First Information Report [Ex.P8] in Crime No.883 of 2012 was registered for Page No.8 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 offence under Section 366 IPC. After completing investigation, the respondent police laid a charge sheet before the learned District Munsif- cum-Judicial Magistrate, Mettupalayam and same was taken on file as P.R.C.No.8 of 2014. After completing the formalities, the case was committed to the learned Principal Sessions Judge, Coimbatore and the same was taken on file as S.C.No.176 of 2017. Since the appellant/accused committed the offence against women, the case was made over to the learned Sessions Judge, Mahila Court Magalir Neethimandram, Coimbatore.
14.During the trial, on the side of the prosecution, as many as 9 witnesses were examined as PW1 to PW9 and 11 documents were marked as Exs.P1 to P11 and no material object was exhibited. After completing the examination of prosecution witnesses, when incriminating circumstances were culled out from the evidence of prosecution witnesses put before the appellant, he had denied as false. On the side of the defence, no oral and documentary evidence was produced.
15.After completing trial and hearing arguments advanced on Page No.9 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 either side, the learned Sessions Judge, vide judgment dated 26.07.2019 in S.C.No.176 of 2017, convicted and sentenced the appellant as stated above.
16.This Court, being an Appellate Court, is a fact finding Court, which has to necessarily re-appreciate the entire evidence and give an independent finding.
17.A careful reading of the oral evidence and exhibits marked, it is seen that at the time of occurrence, the victim girl was aged about 13 years and studying 9th standard. On 27.11.2012, when she was on the way to school at about 09.00 a.m., the appellant waylaid her and made a false promise and took her from the custody of her parents/natural guardians and tied Thali in Annur Sivan Temple. Since the victim girl did not return back to home, at evening hours on 27.11.2012, the parents made search of the victim girl and finally, the father (PW.1) of the victim girl made complaint (Ex.P1) to the respondent Police and subsequently, the respondent Police caught hold the appellant along with the victim girl. A reading of the evidence of the victim girl (PW.2), she has stated that Page No.10 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 the appellant asked her to come with him and told that he will marry her and take care and also help her to pursue her studies. The victim girl went along with the appellant and did not return back to home. The appellant tied Thali in Annur Sivan Temple and stayed in the appellant uncle's house for more than ten days. The victim girl has not stated anything that during the period from 27.11.2012 to 10.12.2012, the appellant induced her to have sexual intercourse with the other person and she was not taken to any other person other than the appellant for sexual intercourse. Therefore, the ingredients of Section 366(A) of IPC would not attract against the appellant. For better understanding Section 366(A) of IPC is extracted hereunder:-
“366A. Procuration of minor girl — Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.” Page No.11 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019
18.As per Section 366(A) IPC, it is not the evidence of the victim girl that she was forced or seduced by the appellant for illicit intercourse with another person. Therefore, the evidence of the victim girl is very clear that the appellant made a promise and took her to Annur Sivan Temple and tied Thali and kept her with him in his uncle's house and he has not committed any offence. The scope and ambit of Section 366(A) IPC is entire different one from Section 363 IPC. The prosecution must prove that the accused intend that the girl would be forced or seduced to illicit intercourse with someone other than himself or that the victim girl knew that it was likely that she would be, so forced or seduced to illicit intercourse with another person other than the accused. The existence of this specific mention or knowledge is most important element in the constitution of offence under Section 366(A) IPC. In this case, the above said ingredients is absent and therefore, on reading of the entire materials even the evidence of the victim girl and her statement recorded under Section 164 Cr.P.C., this Court finds that the appellant has not committed the offence under Section 366(A) IPC.
19.As far as the commission of offence under Section 9 of Page No.12 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 Prohibition of Child Marriage Act, 2006, is concerned, except the evidence of the victim girl, no oral and documentary evidence is available against the appellant to prove the fact that the appellant married the victim girl. The prosecution has not established that the appellant married the victim girl and during investigation, the prosecution has not recovered Thali tied by the appellant. All the witnesses stated that they have seen the hanging of Thali in the neck of the victim girl, but no one has stated that the said Thali was tied by the appellant and they have seen the same. Even at the time of recording the evidence of the victim girl neither the prosecution indicated that the victim girl wearing Thali, nor the Court has stated that at the time of examining the evidence, the victim girl was wearing Thali. Therefore, in the absence of oral and documentary evidence that the appellant tied Thali on the victim girl, it is unsafe to come to the conclusion that the appellant married the victim girl. Except the victim girl, no one has spoken about the marriage. The evidence of the victim girl regarding the marriage has not been corroborated by any other witnesses adduced by the prosecution and therefore, under these circumstances, the prosecution has not proved its case beyond all reasonable doubt that the appellant married the victim Page No.13 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 girl, who is under 18 years, therefore, the appellant has not committed the offence under Section 9 of Prohibition of Child Marriage Act, 2006.
20.A reading of the materials available on records, the victim/child has clearly stated that she is aged about 13 years at the time of occurrence and her Birth Certificate was marked as Ex.P2. The Birth Certificate (Ex.P2) clearly shows that the date of birth of the victim is 30.03.1999 and the date of occurrence is 27.11.2012 and therefore, the age of the victim was 13 years and she was a minor at the time of occurrence. The victim girl has stated that while going to school at the time of nearing the school, the appellant took her to Annur Sivan Temple, tied Thali and took her to his uncle's house and kept her for more than 10 days. Though the victim girl has stated during that time, she was not subjected to sexual intercourse, the Doctor (PW.4), who examined the victim girl clearly stated that a known person has taken her to outside and she was concious when medically examined and the Doctor (PW.4) found that the hymen was not intact and her private parts admitted two fingers and no external injuries. As per the Doctor evidence, the victim girl was subjected to sexual intercourse. Though the Doctor (PW.4) has stated in Page No.14 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 his evidence that the victim girl was aged about 15-16 years, the Birth Certificate (Ex.P2) of the victim girl shows that the date of birth is on 30.03.1999 and the date of occurrence is on 27.11.2012. Therefore, the age of the victim was only 13 years at the time of occurrence. Though the learned counsel for the appellant submitted that the Doctor (PW.4) has stated that the age of the victim girl is 15-17 years, it can be considered either way two years more or less, in this case the Birth Certificate was produced and same was marked as Ex.P2. In the absence of the Birth Certificate, the evidence of the Doctor (PW.4) and report of the Radiologist can be taken into consideration, whereas, in this case the Birth Certificate was produced and the same was marked as Ex.P2. Therefore, the victim girl at the time of occurrence is only 13 years old. Since the victim girl was a minor below 18 years and her custody was taken by the appellant from the lawful guardian without their consent, the appellant has committed the offence under Section 361 IPC and punishable under Section 363 IPC, but not under Section 366(A) IPC. For better appreciation, Sections 361 and 363 of IPC are extracted as follows:-
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http://www.judis.nic.in Crl.A.No.622 of 2019 “361.Kidnapping from lawful guardianship — Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.” “363.Punishment for kidnapping — Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
21.In view of the above discussion, the age of the victim girl was 13 years and she was a minor at the time of occurrence and not completed 18 years.
22.The victim girl has clearly stated that she was taken by the appellant and kept her in his uncle's house for more than 10 days. The Doctor (PW.4) examined the victim girl and opined that the hymen was not intact and vagina admits two fingers and no external injury, but the Page No.16 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 victim girl has not stated that the appellant had forceful sexual intercourse with her. In order to save her reputation, she might have stated that the appellant did not commit sexual intercourse with her. The victim girl might have consented to have sexual intercourse with the appellant.
Though the victim girl has not stated that she has consented for sexual intercourse with the appellant, the prosecution established the fact that the victim girl was minor under the age of 18 years and the appellant had taken the victim girl without obtaining any consent from her parents and kept her for ten days in his uncle's house. The victim girl has stated that the appellant has not committed sexual intercourse with her and only tied Thali, but the marriage was not proved. The evidence of the Doctor (PW.4) is that the victim girl was subjected to sexual intercourse and therefore, even if the girl below 16 years of age, gives consent and if a man has sexual intercourse with her based on the consent, it amounts to rape. However, she has not stated that the appellant had a sexual intercourse with her. Therefore, this Court finds that the appellant has not committed any offence under the POCSO Act or under Section 366A of IPC.
23.The learned Sessions Judge failed to consider the same and Page No.17 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 simply framed charges under Section 366(A) IPC and Section 9 of Prohibition of Child Marriage Act, 2006 and wrongly relied on the presumption under Section 29 of the Protection of Children from Sexual Offence Act, 2012. Therefore, from the materials available on record, it is proved that the appellant had committed the offence under Section 361 and punishable under Section 363 IPC, but the trial Court has not substantiated the charges framed against the appellant. Hence, the judgment, dated 26.07.2019 in S.C.No.176 of 2017 passed by the learned Sessions Judge, Mahila Court, Mahalir Neethimandram, Coimbatore under Section 366(A) IPC and Section 9 of Prohibition Child Marriage Act, 2006 is liable to be set aside and the same is set aside.
24.Since the victim girl is aged about 13 years, even as per the medical evidence she is aged about 15 to 17 years. However, at the time of occurrence, she was below 18 years. The appellant has taken the victim girl from the custody of the lawful guardians without their consent. Even assuming that the appellant has not made any sexual assault and the marriage was not proved, he has taken the victim girl from the custody of the lawful guardians without their consent. Hence, the commission of Page No.18 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 offence falls under Section 361 IPC and the appellant has committed the offence punishable under Section 363 of IPC. The appellant shall undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.10,000/-, in default, he shall undergo further period of 3 years Rigorous Imprisonment for offence under Section 363 IPC.
25.With the above modification, this Criminal Appeal is dismissed. The suspension of sentence already granted by this Court dated 14.11.2019 in Crl.M.P.No.13425 of 2019 in Crl.A.No.622 of 2019 stands cancelled. The trial Court is directed to secure the appellant for sufferance of the above sentence.
02.03.2021 Speaking order/Non-speaking order Index: Yes/No Internet: Yes/No vv2 P.VELMURUGAN, J.
Page No.19 of 20 http://www.judis.nic.in Crl.A.No.622 of 2019 vv2 To
1.The Sessions Judge, Mahila Court, Mahalir Neethimandram, Coimbatore.
2.The Inspector of Police, Mettupalayam Police Station, Mettupalayam, Coimbatore District.
3.The Public Prosecutor, High Court, Madras.
PRE-DELIVERY JUDGEMENT IN Crl.A.No.622 of 2019 02.03.2021 Page No.20 of 20 http://www.judis.nic.in