Madras High Court
Somasundareswaran : Revision vs The State Rep. By on 20 June, 2018
Author: T.Krishnavalli
Bench: T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 20.06.2018
Date of Reservation
12.06.2018
Date of Judgment
20.06.2018
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)No.1025 of 2008
Somasundareswaran : Revision Petitioner/
Appellant/Accused
Vs.
The State rep. by
Inspector of Police,
All Women Police Station,
Musuri,
Trichy District. : Respondent/Respondent/
Complainant
Prayer: Criminal Revision has been filed under Section 397 r/w 401 of
Criminal Procedure Code, against the judgment passed by the Additional
District and Sessions Judge (Fast Track Court No.1), Trichy, in C.A.No.62 of
2002, dated 22.08.2008, modifying the judgment of the Judicial Magistrate
No.1,Karur, made in CCNo.145 of 2003, dated 04.04.2008.
!For Revision Petitioner : Mr.A.Joel Paul Antony
^For Respondent : Ms.M.Anantha Devi
Criminal Side
(Crl. Side)
:JUDGMENT
This Criminal Revision is directed against the judgment passed by the Additional District and Sessions Judge (Fast Track Court No.1), Trichy, in C.A.No.62 of 2002, dated 22.08.2008, modifying the Judgment of the Judicial Magistrate, Musiri, passed in C.C.No.145 of 2003, dated 04.04.2008.
2.According to the prosecution, the accused had sexual intercourse with PW1 on the promise that he will marry her and due to which, PW1 had become conceive and thereafter, he refused to marry PW1 and compelled PW1 to abort the child. The Inspector of Police attached to All Women Police Station, Musiri, has filed a final report under Sections 417 and 506(i) IPC against the accused examining the witnesses.
3.In the trial court, 13 witnesses were examined and 7 Exhibits were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the revision petitioner for the offence under Section 417 IPC and sentenced to undergo one year Rigorous Imprisonment and imposed to pay a fine of Rs.50,000/- as compensation.
4.Aggrieved by the judgment passed by the trial court, the revision petitioner/accused filed an appeal in C.A.No.62 of 2002, which was heard by the Additional District and Sessions Judge (Fast Track Court No.1), Trichy. The first appellate Court modified the sentence to undergo six months of rigorous imprisonment and directed to pay a sum of Rs.25,000/- as compensation to PW1. Aggrieved by the judgment of the first appellate Court, the revision petitioner is before this court.
5.The learned counsel for the revision petitioner/accused submitted that the respondent has registered a case for the offence punishable under Sections 417 and 506(ii) IPC, but both the courts below had not convicted the revision petitioner for the offence punishable under Section 506(ii) IPC, which clearly shows that the respondent has not come with proper case and the first appellate court had not believed the evidence of PW5 and PW7 and convicted the revision petitioner and the first appellate court ought to have applied its judicial mind, since PW9 turned hostile and both the courts failed to note that all the witnesses are interested and relatives of PW1 and both the courts below failed to note the evidence of PW11 that PW1 had sexual relationship with known person and applied its judicial mind that if the revision petitioner is only had sexual relationship with PW1, she would have told the name to PW11 and both the courts below failed to note that the child in the womb was not undergone to genetical test in order to prove that the revision petitioner is the father of the child and falsely convicted and the prosecution has failed to constitute the offence alleged against the revision petitioner and the prosecution has failed to prove the case beyond reasonable doubt and the accused is entitled to acquittal and prays that the criminal revision may be allowed.
6.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that both the courts below appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard to the nature of the offence, convicted the revision petitioner, which does not require any interference by this court and the accused is not entitled for acquittal and prays that the criminal revision may be dismissed.
7.Heard both sides and perused the materials available on record.
8.PW1 is the victim and she gave Ex.P1 complaint to the police. PW1 in his complaint stated that the accused is her uncle's son and on 26.01.2002, when she was alone in her house, he came and told her that he loved her for a long time and promised to marry her and compelled her to sexual intercourse, but it is not possible for her to resist it and she was subjected her to intercourse and afterwards, she became pregnant and it was informed to the accused, but he asked her to abort, but it was refused by her and further, the accused compelled her to abort it and he requested one Palanisamy to give him Rs.500/- for abortion and then, the accused gave Rs.500/- to one Maharaja to give the money to her for abortion and when it was refused, the accused kicked on her stomach with his leg and also threatened her, which was witnessed by one Shankar and then, she escaped from the accused and the relationship of her with the accused was known to Shanthi, Gowari, Palanisamy and Yasodha and she informed the occurrence to her parents and referred the matter to the elders of the village, but the accused refused to obey the decision taken by the panchayadhars and hence, the gave the complaint.
9.PW1 during her evidence stated that prior to one year to the occurrence, the accused frequently come to their house and then, she and the accused loved each other and at that time of love, the accused promised to marry her and that the above love was known to Shanthi, Gowri, Yasodha and Sangeetha and three months after love, one day at 3.00 pm, the accused came to her house and promised to marry her and compelled her to sexual intercourse and afterwards, the accused frequently subjected her to sexual intercourse and only on the basis of the promise made by the accused to marry her, she permitted the accused to have sexual contact with her and due to it, she conceived and she requested the accused to marry her, but the accused refused to marry her and asked her to abort and then, he gave her Rs.500/- and took her to hospital for abortion, but in the hospital, they demanded Rs.2000/- towards medical expenses and due to insufficient amount in their hands, she and the accused returned and then she asked the accused to marry her, but the accused refused and the accused kicked his leg on her stomach and when Maharaja came to her house and gave Rs.500/- to give to her but Maharaja gave the above money to her parents, then occurrence was known to her parents and then her parents informed the occurrence to the parents of the accused, but they refused to marry her to the accused and her parents reported the above occurrence to the elders of the village, but the accused has not obeyed the decision of the pachayadhars and then, she gave a complaint to the police. Hence, PW1's evidence is corroborated with the contents found in Ex.P1 complaint.
10.PW2 is the mother of PW1. PW3 is the brother of PW1. PW2 stated during her evidence that prior to one year, when she returned from her work, she saw that there was a crowd in front of her house and at that time, the relatives of the accused came and gave her Rs.500/- and asked her daughter to abort the child and then only she came to know the occurrence and she reported the above matter to the parents of the accused and when she asked her daughter, she said that only due to the accused, she conceived and then she reported the occurrence to the elders of the village, but the accused refused to marry PW1 and then, her daughter gave the complaint to the police.
11.PW3 stated during his evidence that prior to six months, when he came to his house, he saw a crowd in front of his house and when he enquired his sister, she told him that the accused promised to marry PW1 and on the basis of the promise, she was subjected to sexual contact with the accused and due to it, she conceived and it was reported to the parents of the accused, but the parents of the accused refused to marry PW1 with the accused and then, they reported the occurrence to the elders of the village, but the accused refused to marry PW1 and then PW1 gave the complaint.
12.PW4 to PW8 and PW10 are cited as witnesses, who spoke about the relationship of PW1 and the accused and the pregnancy and abortion of PW1. PW4 to PW8 and PW10 categorically stated that the accused and the PW1 loved each other and the accused subjected her to sexual contact and due to it, she conceived and the accused demanded Rs.1,000/- from Palanisamy, but Palanisamy advised the accused to marry PW1 and then the accused gave Rs.500/- to PW1's mother and asked to abort, then only PW2 came to know the contact between PW1 and the accused and then, PW1's mother reported the mother to the elders of the village, but the accused refused to marry PW1 and then, PW1 gave the complaint to the police. From the evidence of PW1 to PW8 and PW10, it reveals that the accused had sexual contact with PW1 and due to it, she conceived.
13.The Doctor, who gave treatment to PW1 was examined as PW9. PW9 stated that PW1 told her that she alleged to have been subjected to sexual intercourse with known person for one year and she found that she was pregnancy for four months.
14.The learned counsel for the revision petitioner/accused argued that the accused and the victim loved each other with the knowledge and knowing the subsequent events, she has subjected her to sexual intercourse and hence, there is no false representation by the accused to marry the victim and hence, the Offence of 417 IPC was not made out and they revision petitioner/accused is entitled to acquittal. For that, the learned counsel for the revision petitioner/accused has relied upon the following judgments:-
(a)1984 CRI.L.J. 1535 (Jayanti Rani Panda Vs. State of West Bengal and another);
(b)2003 SCC (Cri) 775 (Uday Vs. State of Karnataka); and 8(2013)7 SCC 675 (Deepak Gulati Vs. State of Haryana)
15.In this case, PW1 categorically stated in her complaint and the evidence that only believing on the promise of the accused to marry her, she subjected her to sexual intercourse. Further, PW4 to PW8 to PW10 have categorically stated that they saw the relationship of the accused with PW1. Further, the Doctor stated that PW1 was conceived. PW1 told to the Doctor that she was subjected to sexual intercourse by known person.
16.At this juncture, it is necessary to refer the decision reported in (2013)7 SCC 675 (Deepak Gulati Vs. State of Haryana), wherein it is held as follows:-
?21.Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at any early stage a false promise of marriage by the accused, and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
24.Hence, it is evident that there must be adequate evidence to show that at the relevant time I.e., at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The ?failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term ?misconception of fact?, the fact must have an immediate relevance.? Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her. ?
17.On careful perusal of the evidence of PW1 and other prosecution witnesses, it reveals that PW1 on believing the promise by accused to marry her subjected her to sexual intercourse and afterwards, the accused refused to marry PW1. Hence, it is held that the accused from the very beginning acted with mala fide intention of seducing the victim by making false promise of marriage and not keeping his promise and it is held that the offence under Section 417 IPC is made out against the accused.
18.It is mainly argued on the side of the revision petitioner/accused that there is an inordinate delay in giving the complaint and hence, it is fatal to the prosecution. In the case of sexual offence, after knowing the occurrence by the parents of the victim, the matter was reported to the accused and in the event of failure, the matter would be informed to the elders of the village for amicable settlement and in the event of failure for amicable settlement, complaint will be preferred to the police. Hence, the delay in giving the complaint to the case on hand is not fatal to the prosecution.
19.On careful perusal of the entire materials available on record, the first appellate court has given a correct finding, which do not call any interference by this court.
20.In the result, this criminal revision fails and the same is dismissed.
.