Madras High Court
Sathish Kumar vs The State on 12 September, 2019
Author: P.N.Prakash
Bench: P.N.Prakash
CRL.A.No.659 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 12.09.2019
CORAM
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
CRL.A.No.659 of 2012
Sathish Kumar .. Appellant/
Accused
Vs
The State
Rep. by the Deputy Superintendent of Police,
Arakkonam Sub Division, Arakkonam,
Vellore District. .. Respondent/
Complainant
Criminal Appeal filed under Section 374(2) Cr.P.C., against the
judgment and order of conviction and sentence dated 28.08.2012 passed by
the Principal Sessions Judge, Vellore in Spl.S.C.No.08 of 2011.
For Appellant : Mr.P.N.Balaji
For Respondent : Mrs.P.Kritika Kamal,
Govt. Advocate (Crl. Side)
JUDGMENT
This Criminal Appeal has been preferred by the appellant against the judgment and order of conviction and sentence dated 28.08.2012 passed by the Principal Sessions Judge, Vellore in Spl.S.C.No.08 of 2011. http://www.judis.nic.in 1/8 CRL.A.No.659 of 2012
2. It is the case of the prosecution that, the appellant and the victim girl 'X', aged about 17 years, were in love and on 17.10.2009, he took her to Kanniammal temple in Tiruttani and tied a thali around her neck and thereafter, on the same evening, forcibly had sex with her and left her in the lurch. On the written complaint (Ex.P1) given by 'X', Thillaiyarkarasi (P.W.10), Inspector of Police, All Women Police Station, Arakkonam registered a case in Crime No.9 of 2009 under Sections 417, 376, 506(II) IPC r/w Section 3(i)(x)(xii) of the SC/ST (POA) Act, 1989 and prepared the printed F.I.R. (Ex.P8).
3. Investigation of the case was taken over by Senthilkumar (P.W.12), Deputy Superintendent of Police, who had the victim girl and the appellant medically examined. After examining witnesses and collecting sufficient evidence, Mahendravarman (P.W.11), Deputy Superintendent of Police completed the investigation and filed a final report in the Court of the Judicial Magistrate, Arakkonam on 10.01.2011 for the offences under Sections 417, 376, 506(II) IPC r/w Section 3(i)(x)(xii) of the SC/ST (POA) Act, 1989. Based on the final report, the learned Judicial Magistrate, Arakkonam, by order dated 12.01.2011, took the case on file as P.R.C.No.1 of 2011 and took cognizance under Section 190(1)(b) Cr.P.C. of the offences under Sections 417, 376, 506(II) IPC r/w Section 3(i)(x)(xii) of the SC/ST (POA) Act, 1989. http://www.judis.nic.in 2/8 CRL.A.No.659 of 2012
4. On appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Court of Session on 28.01.2011. The case was taken on file as Spl.S.C.No.8 of 2011 by the Court of Session, Vellore. On 05.04.2011, the learned Principal Sessions Judge, Vellore framed the following charges against the appellant :
“Charge No.I : That you the accused herein on 17.10.2009 at about 8.15 PM on the way to Arakonam from Tiruthani at Babu Nagar, vacant plot, you by deceiving the witness Shanthi (P.W.1), who was not lawfully married to you to believe that she was lawfully married to you and in that belief, cohabit or have sexual intercourse with you and thereby committed an offence punishable U/s 493 IPC and within my cognizance.
Charge No.II : That you the accused herein in the course of same transaction, on 18.10.2009, when witness Shanthi contacted you over phone, you committed criminal intimidation by threatening with dire consequence to the witness Shanthi that “cd;id mDgtpf;fj;jhd; jhyp fl;ondd;/ cd;Dld; thH ,y;iy/ ,ij btspapy; brhd;dhy;
bfhd;WtpLntd;” and thereby you committed an offence punishable U/s 506(ii) of IPC and within my cognizance.
Charge No.III : That you accused herein, on the same date, time and place and in the course of the same transaction, with the intention of insulting and humiliating the witness Shanthi, belonging to Hindu Adi-Dravidar Community uttered “ehd; td;dpah; $hjp eP';f giwah;/ ,UtUf;Fk; xj;J tuhJ/ cd; bghz;iz mDgtpf;fjhd; jhyp fl;ondd; cd; bghd;Dld; http://www.judis.nic.in 3/8 CRL.A.No.659 of 2012 thH KoahJ” and insulted her in public view by degrading her caste and thereby you committed an offence punishable U/s 3(i)(x) of SC/ST (POA) Act 1989 and within my cognizance.”
5. When questioned, the appellant pleaded “not guilty”. To prove the case, the prosecution examined 12 witnesses, marked Ex.P1 to Ex.P10. When the appellant was questioned under Section 313 Cr.P.C on the incriminating circumstances appearing against him, he denied the same. On behalf of the appellant, no witness was examined.
6. After considering the evidence on record and hearing either side, the trial Court, by judgment and order dated 28.08.2012 in Spl.S.C.No.8 of 2011, has convicted and sentenced the appellant as under :
Provision under which convicted Sentence Section 493 IPC 5 years rigorous imprisonment and fine of Rs.10,000/-, in default to undergo 1 year rigorous imprisonment Section 506(II) IPC 2 years rigorous imprisonment and fine of Rs.3,000/-, in default to undergo 6 months rigorous imprisonment Section 3(i)(x) of the SC/ST 1 year rigorous imprisonment and fine (POA) Act, 1989 of Rs.2,000/-, in default to undergo 3 months rigorous imprisonment The aforesaid sentences were ordered to run concurrently. Challenging the conviction and sentences, the appellant is before this Court. http://www.judis.nic.in 4/8 CRL.A.No.659 of 2012
7. Heard Mr.P.N.Balaji, learned counsel for the appellant and Mrs.P.Kritika Kamal, learned Government Advocate (Crl.Side) appearing for the respondent State.
8. On going through the records, this Court observed a fundamental error in the charges that have been framed against the appellant inasmuch as the trial Court has not framed a charge under Sections 417 and 376 IPC. Though cognizance was taken for those offences, no charges were framed and instead, a charge under Section 493 IPC has been framed. The prosecution under Section 493 IPC cannot be launched via a police report but, only through a complaint filed by the aggrieved as mandated by Section 198 Cr.P.C.
9. Mrs.Kritika Kamal, learned Government Advocate (Crl.Side) submitted that in Ushaben Vs. Kishorebhai Chunilal Talpada [(2012) 6 SCC 353], the Supreme Court has held that a charge for an offence under Section 494 IPC can be framed along with 498A IPC, on a police report. However, there is no reference to Section 493 IPC in the police report or in the cognizance order dated 12.01.2011 or in the committal order dated 28.01.2011 of the Magistrate. Of course, the trial Court cannot be nailed to the offences disclosed in the final report and from the materials accompanying the final report, a different charge can be framed.
http://www.judis.nic.in 5/8 CRL.A.No.659 of 2012
10. In this case, the victim girl 'X' has been consistently saying that the appellant tied a thali around her neck in Kanniammal temple, Tiruttani and brought her by his bike near to his village and forcibly had sex with her against her wish, abandoned her and became scarce thereafter. When her family members went to his house for talks, they were told that the marriage will not happen as she ('X') is a Dalit and that they (appellant's family) are caste Hindus.
11. On these allegations, it is strange as to how a charge under Section 493 IPC was framed by the trial Court against the appellant. Section 464 Cr.P.C. will not save the present situation because, even during trial, the appellant had complained of prejudice. The offence under Section 493 IPC is of a totally different genre qua the offence under Section 417 and 376 IPC. Therefore, it has become necessary to remand the matter to the trial Court.
12. This Court carefully perused the evidence of 'X' and other prosecution witnesses. In her testimony, 'X' has stated the sequence of events as set out above, which prima facie discloses the commission of the offences under Sections 417 and 376 IPC and not Section 493 IPC. The cross- examination of 'X' by the accused is also on the same premise. In other words, the appellant was aware about the substance of the charge against him, though the provision of law was incorrect. Therefore, it is not necessary for http://www.judis.nic.in 6/8 CRL.A.No.659 of 2012 the trial Court to recall the witnesses under Section 217 Cr.P.C., in the light of the judgment of the Supreme Court in Ranbir Yadav Vs. State of Bihar [1995(4) SCC 392]. If the trial Court is of the opinion that the request for recall is for the purpose of delaying or defeating the ends of justice, it may reject the same.
In the result, this appeal is allowed and the judgment and order dated 28.08.2012 passed by the Principal Sessions Judge, Vellore in Spl.S.C.No.8 of 2011 is set aside and the matter is remanded to the trial Court for framing charges under Sections 417 and 376 IPC along with the already existing charges under Section 506(II) IPC and also under Section 3(i)(x) of the SC/ST (POA) Act, 1989. The appellant is directed to appear before the trial Court on 04.11.2019 at 10.30 a.m. If he adopts any dilatory tactics, the trial Court is at liberty to remand him to custody under Section 309 Cr.P.C. as held by the Supreme Court in State of U.P. Vs Shambunath Singh [(2001) 4 SCC 667].
12.09.2019 gya Note : Issue order copy by 16.09.2019 Registry is directed to transmit the original records to the trial Court forthwith http://www.judis.nic.in 7/8 CRL.A.No.659 of 2012 P.N.PRAKASH, J.
gya To
1.The Principal Sessions Judge, Vellore.
2.The Deputy Superintendent of Police, Arakkonam Sub Division, Arakkonam, Vellore District.
3.The Public Prosecutor, High Court, Madras.
4.The Deputy Registrar,
Criminal Section,
High Court, Madras. CRL.A.No.659 of 2012
12.09.2019
http://www.judis.nic.in
8/8