Madras High Court
M.Selvakumar vs The Inspector Of Police on 23 November, 2012
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23/11/2012 CORAM THE HONOURABLE Mr.JUSTICE M.VENUGOPAL Criminal Revision Case (MD) No.185 of 2012 and M.P.(MD) No.1 of 2012 M.Selvakumar ... Appellant/Accused Vs The Inspector of Police, All women Police Station, Thirumangalam, Madurai District. ... Respondent Prayer Criminal Appeal filed under Sections 374 of Cr.P.C. against the Judgment dated 31.07.2012 made in S.C.No.149 of 2009 on the file of the Sessions Judge, Mahila Court, Madurai. !For Appellant ... Mr.R.Diwakaran ^For Respondent ... Mr.P.Kandasamy, (G.A.) Crl. Side :ORDER
The conviction and sentence dated 31.07.2012 in S.C.No.149 of 2009 passed by the Learned Sessions Judge/Mahila Court, Madurai are now under challenge in the present Appeal filed by the Appellant/Accused.
2.The Appellant/Accused was found guilty by the Trial Court for the offence under Section 417 of I.P.C. and was awarded with the punishment of six months Rigorous Imprisonment and was also directed to pay a fine of Rs.1,000/-, in default of payment of fine, he was directed to undergo default sentence of one month Simple Imprisonment. The period of sentence already undergone by the Appellant/Accused was directed to be set off as per Section 428 of Cr.P.C. However, the Appellant/Accused was acquitted in respect of charge for the offence under Section 376 of I.P.C. as per Section 235(1) of Cr.P.C.
3.The case of the prosecution is that the Appellant/Accused with a criminal intention to have cohabitation with the victim girl viz., Muthurani, when she was alone in the house by uttering luring words also gave purchased eatables and cheated her by forcefully indulging in intercourse with her. When this fact was known to the parents of Muthurani, panchayat was conducted and at that time, the Appellant/Accused informed that he got married to one Ruby of Palamedu. Therefore, the Inspector of Police, Thirumangalam All Women Police Station, after completing the investigation, laid a charge sheet against the Appellant/Accused for the offences under Sections 417 and 376 of I.P.C.
4.On the basis of the accusation levelled against the Appellant/Accused, the Trial Court framed necessary charges for the offences under Sections 417 and 376 of I.P.C. and the same were read over and explained to him. The Appellant/Accused denied the charges framed against him and demanded a trial.
5.On the side of the prosecution, witnesses P.Ws.1 to 16 were examined and Exs.P1 to 12 were marked. On the side of the Appellant/Accused, no witness was examined and no document was marked.
6.When the Appellant/Accused was questioned under Section 313 of Cr.P.C. in regard to the incriminating circumstances appearing in evidence against him, he denied his complicity in the crime.
7.The Trial Court, on an appreciation of both oral and documentary evidence, had resultantly found the Accused guilty under Section 417 I.P.C and sentenced him to undergo six months Rigorous Imprisonment and also imposed a fine of Rs.1,000/-. However, it acquitted the Appellant/Accused in respect of offence under Section 376 of I.P.C.
8.Being dissatisfied with the conviction and sentence passed by the Trial Court in S.C.No.149 of 2009 on the file of the Learned Sessions Judge/Mahila Court, as an aggrieved person, the Appellant/Accused has projected the instant Appeal before this Court.
9.The Learned counsel for the Appellant/Accused submits that the Trial Court should have taken into account that the complaint was preferred by the Defacto Complainant with ulterior motive and should have consequently, acquitted the Appellant herein.
10.The Learned counsel for the Appellant/Accused takes a plea that the Trial Court should have considered the unexplained delay in filing the complaint by the Defacto Complainant.
11.Yet another stand taken by the Learned counsel for the Appellant/Accused is that the prosecution in the instant case had failed to prove that if at all, the Defacto Complainant has sexual intercourse with the Appellant/Accused.
12.Advancing his arguments, the Learned counsel for the Appellant/Accused draws the attention of this Court to the evidence of Doctor viz., P.W.13 that the Defacto Complainant did not seem to have had sexual intercourse prior to her examination. Furthermore, the Doctor had not conducted finger tests on the Defacto Complainant, which goes to the root of the prosecution case.
13.The Learned counsel for the Appellant/Accused vehemently contends that the Defacto Complainant could not be believed by any reasonable person because no specific dates having were mentioned and further, the prosecution witnesses were all relatives and they do not inspire confidence. Moreover, their evidence was not corroborated by the medical evidence.
14.Lastly, the Learned counsel for the Appellant/Accused submits that however strong the suspicion, the same may be could not take the place of proof and in any event, the Trial Court found the Appellant/Accused guilty under Section 417 of I.P.C. based on unacceptable evidence and as such, the Appellant/Accused deserves to be acquitted.
15.At this juncture, the Learned counsel for the appellant contends that in the present case on hand, Section 417 of I.P.C. is not attracted and to lend support of his contention, he cites the following decisions:
(i)In the decision Mansoor Ali Khan Vs. State by Inspector of Police, R-2, Kodambakkam Police Station, Chennai reported in (2008) 1 MLJ (Crl) 450, at special page 451, it is held that "When the prosecutrix freely, voluntarily and consciously consented to having sexual intercourse with the accused, and her consent was not inconsequence of any misconception of fact, the offence under Section 417 of Indian Penal Code, 1860 is not attracted."
(ii) In the decision P.Govindan Vs. State by Inspector of Police, Thirunavalur Police Station, Villupuram District reported in (2008) 3 MLJ (Crl) 127, at special page on 128, it is held that "When the act of the prosecutrix in having sexual intercourse with the accused has not been proced to be pursuant to any promise made by the accused to marry her and on the other hand, the same was nothing but an act of promiscuity on the part of the prosecutrix, the conviction of the accused for an offence of cheating under Section 417, Indian Penal Code, 1860 and the sentence imposed thereon is not sustainable and is liable to be set aside."
(iii)In the decision S.Albert Vs. State, rep. by the Inspector of Police, Navalpattu Police Station, Navalpattu, Tiruchirapalli District reported in (2009) 2 MLJ (Crl) 532, at special page on 533, whereby and whereunder, it is held that "The consent given pursuant to a false representation that the accused intends to marry, can be regarded as consent given under misconception of facts.
But a promise to marry without anything more will not give rise to misconception of facts, within the meaning of Section 90 of the Indian Penal Code."
In the decision in Raman @ Ramu Vs. State reported in (2009) 3 MLJ (Crl) 938 and 939, it is held that "Consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be under a misconception of fact."
16.Repelling the contentions of the Learned counsel for the Appellant/Accused, the Learned Government Advocate (criminal side) submits that in the present case, the prosecution has clearly proved the fraudulent/dishonest intention of the Appellant/Accused at the time of commission of the act in respect of which the cheating is illegal and also that the subsequent conduct of the Appellant/Accused would be an evidence to show the previous dishonest intention and before the Trial Court, the prosecution has clearly established that the Appellant/Accused spoke luring words to his knowledge with a view to deceive the complainant/P.W.1 and after analysing the evidence available on record, the Trial Court has rightly found the Appellant/Accused guilty under Section 417 of I.P.C. and as such, the instant Criminal Appeal is to be dismissed by this Court in the interest of justice.
17.Before dealing with the respective contentions put forward by either counsel, it is just and necessary for this Court to state that as per Section 415 of I.P.C., to hold a person guilty of cheating, it is to be established that his intention was dishonest at the time of making promise. Further, in order to constitute the offence of cheating, the person, who induces another to do this clause of acts must fraudulently or dishonestly induced the person deceived to do that kind of act. Equally, there is a distinction between Breach of Contract and the offence of cheating. It consequently depends upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct , but for this subsequent conduct, is not the single test. Also, a mere Breach of Contract cannot give room for criminal prosecution in regard to cheating, unless fraudulent or dishonest intention is shown right at the commencement of the transaction viz., when the offence is purported to have been committed. As such, it is the intention which is the essence of the offence.
18.It is to be noted that there ought to be some piece of evidence of fraudulent or dishonest intention at the time of commission of act in respect of which the cheating is lodged against the accused. It is not sufficient to establish that a false representation has been made. It is further necessary to prove that the representation so made is a false one to the knowledge of the Accused made with a view to deceive the Complainant.
19.Admittedly, P.w.1/Complainant and the Appellant/Accused are relatives. P.W.1/Victim in her evidence has deposed that she has studied upto 6th standard and her parents are doing coolie work and her brother is working as a Driver and she alone remained in her house and further that her parents used to go for work early morning at 7.00 a.m. and return at 6.00 p.m. in the evening.
20.It is the further evidence of P.W.1 that the Accused/Appellant has been residing in a house situated at a distance of two houses from her house and since the Appellant/Accused has resided near to her house, he used to visit her house quite often and that after her parents have gone for work, he used to come to her house and got acquainted by talking with her and when she complained to her parents about this, they informed her that he is the son of her grandfather and coming to their house just like that. But, on one day, he has come to her house and hugged her and at that time, no one remained outside. But, she raised her voice and later one day, he has come to her house and informed her that he will marry her and she believed his words and that the Appellant/Accused informed that he will marry her and by uttering these words, he raped her and on 09.11.2008, the complaint Ex.P1 has been lodged with the Thirumangalam All Women Police Station.
21.P.W.1 in her cross examination has deposed that when the first wrong has taken place, she has not informed her parents and for one year, they had sexual intercourse.
22.P.W.2/(Father of victim girl/complainant), in his evidence has deposed that a panchayat has been conducted with the help of the village elders and since the Appellant/Accused has informed that he will not marry P.W.1, they have gone to the Police Station immediately.
23.P.W.3/Mother of P.W.1 in her evidence has deposed that after coming to know that her daughter viz., P.W.1 has been raped and a panchayat talk has been held and on the side of the Appellant/Accused, they informed that marriage between the victim/P.W.1 and the Appellant/Accused would not take place.
24.P.W.6 in his evidence has deposed that when he came to know about the occurrence, he enquired with the known persons and has came to know that the Appellant/Accused has refused to marry the victim/P.W.1.
25.P.W.7 in his evidence has deposed that after seeing the acquaintance of P.W.1 and the Appellant/Accused, the elders have gone to the house of Appellant/Accused and they demanded that the victim Muthurani should be married to the Appellant/Accused. As a matter of fact, P.W.7 has taken part in the panchayat that had taken place.
26.P.W.1 in her evidence has stated that the Appellant/Accused has refused to marry her because of the reason that he already got married to one girl. P.W.3 has deposed that after Ex.P1, the complainant, the Appellant/Accused has got married to another girl.
27.P.W.6, in his evidence has stated that initially, a complaint has been lodged with the police and subsequently, the marriage of the Appellant/Accused has taken place and hence, another report has been filed.
28.P.W.1 in her 164 of Cr.P.C. statement before the Learned Judicial Magistrate, Melur on 18.12.2008, has interalia stated that the Appellant/Accused has informed her that he is to marry her and as such to succumb to his desire and raped her and after lodging the complaint with the police, the Appellant/Accused got married to Ruby of Palamedu.
29.P.W.12, the Learned Judicial Magistrate has deposed that she has recorded Ex.P10, 164 of Cr.P.C. statement of the victim. P.W.14 Inspector of Police has gone to the scene of occurrence and prepared Observation Mahazar Ex.P2 and Rough Sketch Ex.P12 in the presence of witnesses P.W.9 Jothiramalingam and Muthumani.
30.P.W.9 has deposed in his evidence that he has signed in Ex.P2 Observation Mahazer for the proof of police visiting to the scene of occurrence.
31.P.W.14 has sent the victim/P.W.1(Complainant) for medical examination through Court as per the requisition letter Ex.P3 dated 02.12.2008 and the same was forwarded by the Learned Judicial Magistrate, as per Ex.P.5 his letter dated 02.12.2008.
32.P.W.13 Doctor examined P.W.1 and has issued Ex.P7 medical examination report. P.W.11 in his evidence has deposed that Ex.P6 letter dated 02.12.2008 has been sent from the Trial Court to the Forensic Lab, Madurai P..W.15 has conducted medication on the Appellant/Accused and has given potential certificate.
33.P.W.14, the Investigating Officer has examined P.W.12 by recording her statement. P.W.12, the Learned Judicial Magistrate, Melur in her evidence has stated that he received Ex.P9 letter from the police station and recorded Ex.P10, the confessional statement of the victim girl under Section 164 of Cr.P.C.
34.Although the Appellant/Accused has been charged in respect of offence under Sections 417 and 376 of I.P.C., the Trial Court has come to the right conclusion that it has not been established by the prosecution that the Appellant/Accused has forcefully committed the act of rape on the victim girl viz., P.W.1 Muthurani and more so, P.W.1, on her own desire, has moved and got acquaintance with the Appellant/Accused and as such, the charge levelled against the Appellant/Accused for the offence under Section 376 of I.P.C. has not been proved by the prosecution.
35.At this stage, this Court worth recalls the decision of this Court in Ravichandran V. Mariyammal reported in 1992 CRI.L.J. 1675, at special page 1676, wherein, in paragraph Nos.7 and 8, it is laid down as follows:
"7.Deception of any person is common to the second and the third requirements of the section as stated above. Second and third requirements are alternative to each other and this is made significantly clear, by use of disjunctive conjunction 'or'. Therefore it goes without saying that the definition of the offence of cheating, embraces some cases in which no transfer of property is occasioned by the deception and some in which no transfer occurs. For these cases, a general provision is made in S.417 of Code. For the cases in which property is transferred, a more specific provisions is made by S.420. But the offence of cheating of any person by delivery of property is punishable under either of the section. But where the case appears to be of a serious nature, step is normally taken under S.420 I.P.C. In this view of the matter, the contention of learned counsel for the petitioner that since the offence of cheating figuring in Chapter XVII, relates to property offences, the case on hand, cannot at all be said to be coming within the purview of S.417 I.P.C. cannot at all be countenanced.
8.The averments in the complaint, do prima facie, point out false representation said to have been made by the petitioner, in the sense of himself making a promise to marry her, and believing such a promise, the respondent succumbed to his carnal desire, in request. But for the representation so made and the deception practiced on her, she would not have been a party for sharing her bed with the petitioner, on the relevant date, which is said to have resulted in her becoming pregnant. The allegations as stated in the complainant do prima facie, establish an offence under S.417 I.P.C. requiring him to undergo the ordeal of trial. Further, the Court below has already examined 8 witnesses after taking the complaint on file with subjective satisfaction that a prima facie case had been established against the petitioner."
Also, this Court aptly points out the decision in Mailsami V. State reported in 1994 CRI.L.J.2238 at special page 2240, in paragraph Nos.5 and 6, it is observed and held hereunder:
"5.The submission that no offence under Section 417 I.P.C. is made out, cannot be accepted for the reason that when she refused to have sexual intercourse with him, he made a promise that he will definitely marry her and induced her to subject herself for sexual intercourse by him; but ultimately when she insisted for marriage, after she became pregnant, he evaded and ultimately he put an impossible condition and did not marry her. So, the inducement is there and because of that, she had done something, which she would not do, if she had not believed that inducement and that inducement is shown to be a dishonest one. All the ingredients necessary to make out the offence under Section 417 are available here. So the first submission cannot be sustained.
6.Regarding the second submission that offence under Section 417 I.P.C. is barred by time, the date from which the period is to be computed, assumes importance Mr.Hajiee P.K.Jamal Mohamed, would submit that the date on which she agreed to have sexual intercourse with the accused would be the material date. I do not accept this submission for the reason that the date of knowledge of the aggrieved person is the material date and on the date on which she agreed to have sexual intercourse, she did no have the knowledge that he was going to ultimately cheat her and only the date on which she came to know that she was cheated is the material date, for fixing the starting point of limitation, so far as offence under Section 417 is concerned. Any victim of cheating would not know, on the date of cheating that he or she was being cheated. The victim would come to know only on a later point of time, that he or she was cheated. The victim would come to know only on a later point of time, that he or she was cheated. That is the material date. In the instant case, she believed the promise made by the accused and agreed for sexual intercourse. Later she became pregnant by six months. He asked her to dissolve the pregnancy and then he would marry her. The lady doctor said that the pregnancy could not be dissolved because of the advance stage of pregnancy. Then he insisted that he would marry only after pregnancy was dissolved. Panchayat was held. At that time he agreed. But it was not given effect to. Then on 11.04.90 she gave report to the police and the Sub Inspector, Keeranur sent for him and his father and others and at that they agreed for the marriage, but later did not do it. Only then, she has come to know that she has been cheated and had given this complainant on 15.6.90. Between 11.4.90 and 15.6.90 only about two months has elapsed. So it is not barred by time. Hence the second submission also fails."
36.One cannot ignore an important fact that a consent given on a misrepresentation of fact is one given under a misconception of fact within the meaning of Section 90 of I.P.C. No wonder the evidence of consent which is sufficient in a civil matter should be equally sufficient in exculpation of an Accused's guilt.
37.Furthermore, this Court points out that in the decision in Jaladu N Re (1913) 36 Madras 453, this Court has held that 'the expression under a misconception of fact' is broad enough to include all cases, where the consent is obtained by misrepresentation, the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given.
38.Moreover, in the decision Flattery (1877) 2 QBD at page 410, the facts that where the Accused professed to give medical and surgical advice for money. The Prosecutrix, a girl of 19, consulted him with respect to illness from which she was suffering. He advised that a surgical operation should be performed and under pretence of performing it, had carnal connection with the Prosecutrix. She submitted to what was done under the belief that he was merely treating her medically and performing a surgical operation. It was held that the Accused was guilty of rape.
39.Mere submission by one, who does not know the nature of act done cannot be consent as per Quain J in Lock (1872) LR 2 CCR 10, 14. This Court relevantly point out the decision in Rao Harnarain Singh Sheoji Singh and others Vs. The State AIR 1958 PUNJAB 123, wherein, it is held that all consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be consent.
40.Coming to the charge under Section 417 I.P.C. against the Appellant/Accused, it is to be pointed out that it is evident from the evidence of P.Ws.1 to 8 that one day the Appellant/Accused has come to her house and hugged her and at that time, no one has been outside and subsequently, one day he has come to her house and uttered that he will marry, which she believed and had sexual intercourse with her. In the instant case, P.W.1 believed the promise/assurance of the Appellant/Accused that he would marry her and for a period of one year, the Accused/Appellant indulged in sexual intercourse with P.W.1/victim girl (of course, she was a consenting party) . Believing the Appellant/Accused's promise/assurance, P.W.1/victim girl succumb to his carnal desire and but for the representation so made and also he being in the relationship of an uncle and the said relationship continued for a year, she would not have been a party for indulging in frequent cohabitation with him. Therefore, on the basis of facts and circumstances of the present case, the evidence of P.W.1 unerringly point out the dishonest intention/dishonest inducement of the Appellant/Accused, which is very much present in his act/acts and therefore, this Court unhesitatingly comes to an inescapable conclusion that the offence of cheating has been made out and rightly he has been convicted and sentenced by the Trial Court in respect of offence under Section 417 I.P.C.
41.In the upshot of discussions mentioned supra, this Court opines that the Trial Court has rightly found the Accused guilty under Section 417 of I.P.C. which is not called for any interference by this Court both on factual and legal plane, consequently, the Criminal Appeal fails.
42.In the result, the Criminal Appeal is dismissed. The conviction and sentence passed in S.C.No.149 of 2009 ddated 31.07.2012 passed by the Learned Sessions Judge/Mahiula Court are hereby are affirmed by this Court for the reasons assigned in this Appeal. If the Appellant/Accused is not in duress, the Trial Court is directed to take appropriate steps to confine the Appellant/Accused in prison so as to serve the remaining period of sentence.
Arul To
1. The Inspector of Police, All women Police Station, Thirumangalam, Madurai District.
2.The Sessions Judge, Mahila Court, Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.