Madras High Court
Ellappa vs The Inspector Of Police on 28 February, 2018
Crl.A.No.263 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date of Reserving Order Date of Pronouncing Order
23.09.2021 22.11.2021
CORAM
THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN
Crl.A.No.263 of 2018
Ellappa .. Appellant
Vs.
The Inspector of Police,
Uthamappali Police Station,
Hosur. .. Respondent
PRAYER : Criminal Appeal is filed under Section 374(ii) of Criminal
Procedure Code, to set aside the judgment dated 28.02.2018 passed by the
learned Fast Track Mahila Court, Krishnagiri, in S.C.No.57/2015 convicting
the appellant for the offence committed under Section 376 IPC and imposing
a punishment of seven years rigorous imprisonment and a fine of Rs.1,000/-
in default six months rigorous imprisonment.
For Appellant : Mr. E. Om Prakash,
Senior Advocate
for Mr. K. Moorthy
For Respondent : Mr. S. Vinoth Kumar,
Government Advocate
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Crl.A.No.263 of 2018
JUDGMENT
The matter is heard through "Video Conference".
2. Convicted sole accused is the appellant herein.
3. This criminal appeal is filed against the judgment dated 28.02.2018 passed by the learned Fast Track Mahila Court, Krishnagiri, in S.C.No.57/2015 convicting the appellant for the offence committed under Section 376 IPC and imposing a punishment of seven years rigorous imprisonment and a fine of Rs.1,000/- in default six months rigorous imprisonment
4. The case of the prosecution in brief is that
(i) on 28.12.2021 and 30.12.2021 against the will and without the consent of P.W.1/victim, the accused has committed the offence of rape and subsequently, on 04.01.2012, he had made a promise to marry her and went to the Madhanagiri Muniyappan Temple and tied Thaali (Yellow Thread) after the intervention of Panchayadarars. Panchayant was conducted by the 2/14 https://www.mhc.tn.gov.in/judis Crl.A.No.263 of 2018 Panchayadarars/P.W.6, P.W.7 and P.W.8 in the presence of 100 people. He stayed there for a night and thereafter, in the early hours, he flee from the village, which, resulted in filing the FIR.
5. After investigation, the respondent-police filed charge sheet against the accused in Crime No.07/2012 on 09.08.2012 for the alleged offence on the file of All Women Police Station, Hosur. Initially, the case was registered for the offence under Section 417, 376 and 506(ii) of IPC and final report is laid.
6. During trial, on the side of the prosecution, P.W.1 to P.W.14 witnesses were examined and Exs.P1 to P16 were marked. No oral or documentary evidence was marked on the side of the accused.
7. The learned Fast Track Mahila Court, acquitted the appellant from the charge under Section 417 and 506(ii) of IPC in terms of 235(1) of Cr.P.C. However, held that the prosecution has proved the charge under Section 376 of IPC and accordingly, convicted the accused and passed sentence of seven years rigorous imprisonment with fine of Rs.1,000/- in 3/14 https://www.mhc.tn.gov.in/judis Crl.A.No.263 of 2018 default to undergo six months rigorous imprisonment.
8. Mr.Om Prakash, learned Senior Advocate appearing for the appellant/accused would contend that the evidence of P.W.1, P.W.2 and P.W.3, does not attract the offence under Section 375 of IPC. The evidence of P.W.1/defacto complainant is only con-sexual act of sex and she has given her consent for the same. The age of the victim girl is 18 to 16 years.
8(i) Further contended that the age of the defacto complainant was 18/19 years as on 29.08.2012. The entire evidence proves that there was a marriage on 04.01.2012 and that the accused stayed with the victim in her house on 04.01.2012 and had sexual relationship. The child was born on 30.12.2012. The allegations made in the complaint of alleged rape is after a long delay, as the alleged incident is said to have occurred on 28.12.2011 and on 30.12.2011, whereas the alleged complaint was given only on 09.08.2012, while the preceding complaint did not allege any offence of rape.
8(ii). Further contended that the first complaint was given on 14.07.2012 before All Women Police Station and the same was taken on record in C.S.R.No.135/2012. On the first complaint the complainant has 4/14 https://www.mhc.tn.gov.in/judis Crl.A.No.263 of 2018 requested the police officer to make arrangements for the complainant to live with the accused. There is no allegation of 'rape' by the defacto complainant in the first complaint. As an afterthought since the appellant was not ready to live with the defacto complainant, a second complaint was given on 09.08.2012, FIR registered (Crime No.07/2012) and in the second complaint, the defacto complainant alleged 'rape'.
8(iii). Since the accused and complainant lived together, had sexual relationship for one day. Though, the accused is already married, the ingredients under Section 375 of IPC, (rape) is not made out and hence, prayed that the conviction under Section 376 of IPC is unsustainable in law.
9. At the outset, the trial Court has taken the evidence of P.W.1, for the rape and based upon the DNA Report/Ex.P16 confirmed the parentage of the accused and rendered a finding of rape against the accused. The relevant records of the birth of the child, evidence of Doctor, as to the loss of virginity and subsequent pregnancy and delivery of a girl baby thereafter, has been taken note of by the Sessions Judge for laying conviction under Section 376 of IPC.
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10. Whether, the order of conviction is sustainable in law. Whether, the quantum of sentence awarded by the trial Court is excessive. The accused is charged for the offence under Section 417, 376 and 506(ii) of IPC. For 506(ii) and 417, he was acquitted. The sole charge is now stands against the appellant/accused is 376 of IPC.
11. P.W.1 is victim girl. The chief examination was recorded on 19.09.2016. The cross examination was conducted after filing an application under Section 311 of Cr.P.C., to recall P.W.1 for cross examination and cross examination was conducted on 17.08.2017, nearly, after one year. Even during the cross examination, her evidence of the victim girl/P.W.1, is clear and cogent and unshaken by the various questions confronted by her by the defence counsel.
12. On combined reading of chief and cross examination of P.W.1, I find that with regard to the alleged occurrence on 28.12.2011 and 30.12.2011, the same remains unchallenged in the cross examination, assumes significance. The alleged eye wash marriage has to make-it, believe 6/14 https://www.mhc.tn.gov.in/judis Crl.A.No.263 of 2018 the P.W.1 and to silence the parents, said to have been taken place on 04.01.2012, he tied Thalli (Yellow Thread) before the Temple.
13. On combined reading of version of P.W.1 and independent witnesses P.W.6, P.W.7 and P.W.8, I find out during the panchayat, held by Panchayadars/P.W.6, P.W.7 and P.W.8, attended by more than 100 persons in the Village, it appears that the accused has admitted the commission of the crime and also tying of the Thalli, despite the fact, he is already married. He only pleaded for time to convince his first wife and after dissolution of the Panchayadars, on the next day, early morning, under dark of dawn, he fled from the village.
14. It is the specific evidence of P.W.1 that she was studied up to 8th Std, at the time of occurrence she was 17 years. The cross examination of P.W.1/victim, P.W.2, P.W.3 P.W.4 viz., family members, are only on the line that there was a marriage and to support accused argument that Section 376 of IPC is not attracted. The act of the accused in having Sexual relationship against the will and without consent of P.W.1, on 28.12.2011 and 30.12.2011, were remained unchallenged in the cross examination of 7/14 https://www.mhc.tn.gov.in/judis Crl.A.No.263 of 2018 P.W.1, assumes significance.
15. On combined reading of the version of private prosecution witnesses (P.W.1 to P.W.4), this Court finds that the accused was in possession of native talent to cheat the rustic women and her family and their village and made an eye wash of tying of Thalli (Yellow Thread), around the neck of P.W.1. After dissolution of the Panchayant conducted by P.W.6, P.W.7 and P.W.8, in the Village and early morning he fled from the Village. Such an action of the accused clearly shows that it is not a marriage, in the true sense of the term much less legal term it is only a ruse to excuse and to safeguard from the assault of the village people while conducting the Panchayat.
15(i) After dissolution of the Panchayat, on the dispersal of the members of the village on the following night and early morning he fled from the village and ran away and hence, the entire conduct adopted by the accused goes to show that it is not a marriage as projected in the cross examination, it is only an eye wash to safeguard the physical beating from the Village people.
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16. The poor P.W.1/victim was made to believe the accused has married him and stated so in the P.W.1 in the witness, it appears that she has stated so in the cross examination. So is the version of parents P.W.2 and P.W.3 and hence, I find that the suggestive case projected by the prosecution is only an after thought and hence, the same is held to be not propabilised up to the preponderance of probability level.
17. It remains to be stated that the learned Senior Advocate appearing for the appellant/accused would contend that there was a delay in registering the complaint, as a said incident said to have been occurred on 28.12.2011 and 30.12.2011 and the complaint was given on 11.08.2013. I find from the records P.W.13/Investigation Officer, has admitted that on 14.07.2012, the complaint was give by victim/P.W.1 before the All Women Police Station, stating that the accused left her in CSR.No.135/2012. Since P.W.1, believed the stage-drama conducted by the accused to make it believe that P.W.1 tied the Thalli around her neck without realising the criminal intention behind the accused to escape from the Village without being hurt. Again on 09.08.2012, the victim/defacto complainant gave a complaint against the accused alleging the offence which is, Ex.P1/FIR. 9/14 https://www.mhc.tn.gov.in/judis Crl.A.No.263 of 2018
18. It remains to be stated that on 13.12.2012, female child was born to P.W.1/victim. The evidence of P.W.1 coupled with the evidence of P.W.10, P.W.11, and P.W.12. P.W.10/K.Ganesh, expert witness, determined the age of P.W.1 by micro ray photos and stated that the age of the accused would be between 18-19 on 21.08.2012, and the said document is marked as Ex.A5. P.W.11/Dr.Nandini, tested the virginity of P.W.1 and stated no wound in the sex organ of the accused and said the victim is 18-20 weeks pregnant and the said document is marked as Ex.A6. P.W.12/Chinnadurai, given the birth registration of the victim's child and the said document is marked.
19. With regard to the potency of the accused, P.W.9/Dr.Thunder, given medical certificate as to the fitness of the accused and issued a certificate on 29.08.2012 that the accused is fit for having sexual intercourse, and the said document is marked as Ex.A4.
20. The P.W.14, who had issued Ex.P15/DNA Report that accused is the biological father of the child to P.W.1/victim girl. Thus, on combined 10/14 https://www.mhc.tn.gov.in/judis Crl.A.No.263 of 2018 reading of evidence of P.W.1/victim, coupled with the medical evidence of P.W.11/Dr.Nandini and Ex.P6/Medical Report, wherein the victim is found to be 18-20 weeks of pregnant and subsequently, P.W.1 gave birth to baby girl and the registration of birth of the child of P.W.1 is marked as Ex.P12 by P.W.12 and the medical evidence of P.W.14/Deputy Director Scientific Officer of Forensic Department under Ex.P15, as I find that the accused is the biological father and hence, I find that the prosecution has proved the charge beyond reasonable doubt and accordingly, the conviction laid by the learned Fast Track Sessions Judge is just and proper.
21. Mr.Om Prakash, the learned Senior Advocate for the appellant would contend that the first complaint under Ex.P1, the victim has asked for the re-union of the husband/accused since he had already tied the Thalli and hence, would contend that the charge under Section 376 of IPC is not made out.
22. This Court has given its anxious consideration and unable to uphold for the multiple reasons discussed supra. For the reason stated in the preceding paragraphs, this Court has held that the accused has in order to 11/14 https://www.mhc.tn.gov.in/judis Crl.A.No.263 of 2018 escape from the Village and also escaped from the warmth of the village people which has resulted in the Village Panchayat, has made a stage drama as if, he tied Thalli making P.W.1 as his wife in front of the village and within a day or two when the entire village is sleeping, has found his way and fled from the village and therefore, the said factum is not a marriage in the eye of law. It is only an ruse to escape from the village and hence, the same need not be taken into consideration.
23. The next contention is that it was consensual sex. From the evidence of P.W.1, I find that there is no suggestion to P.W.1 or any prosecution witness. Accordingly, both the contention raised by the Senior Advocate stands negatived.
24. As observed earlier, at the risk of repetition, for the sake of clarity, the specific allegation by P.W.1, on 28.12.2011 and 30.12.2011 against her will and without her consent, the accused had sexual relationship with her and subsequently, on 04.01.2012, he made a stage managed, as if, he performed marriage. The said contention of P.W.1 was remain unchallenged in the cross examination, not challenged before any of the 12/14 https://www.mhc.tn.gov.in/judis Crl.A.No.263 of 2018 private prosecution witnesses also forces this Court to held that the suggestive case of the defence is only an after thought.
25. Accordingly, this Court holds that the suggestive case was not probabilised and charge was proved by the prosecution behind reasonable doubt. Accordingly, the conviction and sentence is held to be valid in law and sustainable.
26. Accordingly, the criminal appeal is dismissed. The order dated 28.02.2018 made in S.C.No.57/2015 on the file of the learned Fast Track Mahila Court, Krishnagiri is hereby confirmed. The Trial Court is directed to secure the accused and make him undergo the remaining period of sentence.
22.11.2021
AT
Index :Yes/No
Internet :Yes/No
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Crl.A.No.263 of 2018
RMT.TEEKAA RAMAN,J.,
AT
To
1.The Fast Track Mahila Court,
Krishnagiri.
2.The Inspector of Police,
Uthamappali Police Station,
Hosur.
3.The Public Prosecutor,
High Court of Madras.
Judgment in
Crl.A.No.263 of 2018
22.11.2021
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