IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.01.2010
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
Crl.A.No.747/2005
Swami @ Ramakrishnan Appellant
Vs
State by Inspector of Police
G2 Puthumanthu Police Station
Nilgiris District Respondent
Prayer:- This Criminal Appeal is filed against the judgement dated 03.09.2004 passed in SC.No.11/2004 by the learned Additional District and Sessions Judge, Uthagamandalam, Nilgiris District, convicting and sentencing the Appellant/accused for the offence under Section 376 of IPC to undergo ten years Rigorous Imprisonment and to pay a fine of Rs.10,000/- in default to undergo one year Rigorous Imprisonment and for the offence under Section 506(2) of IPC to undergo one year Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo 3 months Rigorous Imprisonment and for the offence under Section 417 of IPC to undergo one year Rigorous Imprisonment and to pay a fine of Rs.1000/- in default to undergo three months Rigorous Imprisonment and ordering the all the sentences to run concurrently.
For Appellant : Mr.S.N.Arunkumar
For Respondent : Mr.Hasan Mohammed Jinnah, APP
ORDER
This Criminal Appeal is filed against the judgement dated 03.09.2004 passed in SC.No.11/2004 by the learned Additional District and Sessions Judge, Uthagamandalam, Nilgiris District, convicting and sentencing the Appellant/accused for the offence under Section 376 of IPC to undergo ten years Rigorous Imprisonment and to pay a fine of Rs.10,000/-, in default to undergo one year Rigorous Imprisonment and for the offence under Section 506(2) of IPC to undergo one year Rigorous Imprisonment and to pay a fine of Rs.1,000/-, in default to undergo 3 months Rigorous Imprisonment and for the offence under Section 417 of IPC to undergo one year Rigorous Imprisonment and to pay a fine of Rs.1000/-, in default to undergo three months Rigorous Imprisonment and ordering the all the sentences to run concurrently.
2. The case of the Prosecution is as follows:-
a. One Venkatesh/PW.1 is the brother and Lakshmi/PW.3 is the mother of Yasodha/PW.2, the victim. In the month of August 1999, on one day at 3.00 p.m the Appellant raped Yashodha forcibly, when she went to cut grass for the cattle and he threatened her to kill her, if she disclosed it to anyone and thereafter, he had sexual inter course with her several times by threatening her and giving false assurance to marry her. She became 6 months pregnant and the same was confirmed by the Doctor, when she was taken by her mother for stomach ache and the victim informed the incident to her family members and on 8.5.2000 gave birth to a female child and even thereafter, the Appellant refused to marry her.
d. PW.6 Doctor Chitra Vijayaraj examined the victim on 11.7.2000 and opined that she was 6 months pregnant and issued prescription Ex.P3.
c. Since the Appellant refused to marry the victim, PW.1 gave a petition to the Village Panchayatars and in the Panchayat held, the Appellant denied the allegation and refused to marry her. Hence, PW.1 and the Panchayatars gave a complainant Ex.P1 to the All Women Police Station, Udhagamandalam. On receipt of the complaint, PW.10 the Inspector of Police attached to the said Police Station registered a petition in No.80/2000 and examined the victim and recorded her statement Ex.P8 and on getting permission from the concerned court registered a case in Cr.No.135/2000 for the offence under Section 417 of IPC and prepared the printed FIR Ex.P9 and sent the documents to the concerned court and took up the case for further investigation and on 1.7.2000 went to the place of occurrence and prepared observation mahazar Ex.P2 and prepared a rough sketch Ex.P10 in the presence of the witnesses Rangappan and Sivadas and obtained their signatures and also examined the Doctor Saraswathi Mani who gave treatment to the victim and received OP Slip Ex.P11 and Ex.P12 Scan report from her and sent a requisition Ex.P17 to the concerned court for radiological test of the victim to find out the age of the victim.
d. PW.7 Doctor Jayalakshmi on 24.11.2000 after examining the victim issued age certificate Ex.P5. PW.10 received a birth certificate Ex.P13 of the child. Pw.8 Inspector of Police attached to the Pudumandhu Police Station on receipt of the case file on 6.11.2000 at 6.30 p.m. arrested the accused and sent him for judicial custody and altered the case into one under Sections 417 read with 506(ii) of IPC. PW.9 Assist Director of Forensic Department issued DNA Report Ex.P7.
e. PW.11 Inspector of Police on receipt of the case file took up the case for further investigation and examined the witnesses and recorded their statement and after completing investigation, on 10.7.2002 filed a final report against the accused under Sections 493, 506(ii) and 376 of IPC.
3. The case was taken on file in SC.No.11/2004 on the file of the learned Additional District and Sessions Judge, Uthagamandalam, Nilgiris District and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 11 witnesses (PW.1 to PW.11} and also relied on Exs.P1 to P19. On side of the defence, Doctor Saraswathi Mani was examined as DW.1.
4. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false.
5. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal.
6. This court heard the submissions of the learned counsel on either side and also perused the material records placed.
7. As per the Prosecution, the prosecutrix was raped by the Appellant, when she went to cut grass for the cattle and he threatened her to kill her, if she disclosed it to anyone and thereafter, she had sexual inter course with her several times and falsely assured to marry her. However, only when she became 6 months pregnant and was confirmed by the Doctor and when she was taken by her mother for stomach ache, the prosecutrix informed the incident to her family members.
8. The Doctor PW.6, who examined the prosecutrix and confirmed her pregnancy of 6 months, was examined and Dr.Saraswathi Mani, who also confirmed the pregnancy was examined by the defence as DW.1. A Panchayat was held in the Village by PW.4 and other elders, wherein the Appellant denied having had any sexual relationship with her and despite the efforts put by the panchayatars, no settlement could be arrived at between the Appellant and the Prosecution party. On such failure, a joint complaint Ex.P1 is said to have been given by PW.1, the brother of the prosecutrix and the panchayatars. Subsequently, she had given birth to a child and the DNA test was performed wherein the Appellant was reported to be the biological father of the child under Ex.P7 report. Radiological examination was conducted to ascertain the age of the prosecutrix and PW.7 Dr.Jayalakshmi who conducted the said examination ascertained her age to be between 17 and 18 in the age certificate issued by her under Ex.P5. As many as eleven witnesses were examined by the Prosecution in support of the Prosecution case, including the prosecutrix her brother and one of the panchayatars. The Appellant denied having raped forcibly the prosecutrix and claimed that a false case had been foisted against him. The learned Sessions Judge negatived the defence and came to the conclusion that the offences of rape, criminal intimidation and cheating were proved against the Appellant and convicted him on those charges.
9. Mr.S.N.Arunkumar, the learned counsel for the Appellant pointed out that the whole Prosecution story is extremely unnatural and weak. The learned counsel pointed out that the prosecutrix was undoubtedly a grown up girl and though as per the Prosecution, she was raped few months prior to the complaint at 3.00 noon, she had not only kept quiet till she became six months pregnant, but also indulged in sexual inter course with the Appellant again on subsequent days and alleged to have reported the matter only when she was taken to the Doctor on 13.2.2000, when for the first time her pregnancy was said to have been detected. The learned counsel argued that her silence for so many months clearly suggested that there was an element of ‘consent’ on the part of the prosecutrix and as such, there was no question of any rape.
10. The learned counsel contended that in fact, the Appellant did not participate in the Panchayat and he did not refuse to marry the prosecutrix. In fact, he submitted that the family members of the prosecutrix intended only to abort the foetus and get her married to one Neelamegam. Therefore, he would contend that there was no question of the Appellant refusing to marry to prosecutrix during such panchayat.
11. On the other hand, Mr.Hasan Mohammed Jinnah, the learned Additional Public Prosecutor supported the judgement of Trial Court on the basis of the evidence of the prosecutrix and submitted that her evidence was corroborated by other evidence, especially the DNA report that there was not only a sexual intercourse between the Appellant and the prosecutrix, but also the same was initially without the consent and against the will of the prosecutrix and the conclusion arrived at by the Trial Court was not improper.
12. In the present case, the evidence of the prosecutrix PW.2 is more important, as the other witnesses came to know of the factum of affair between PW.2 and the Appellant only after 6 months of her pregnancy. However, the evidence of PW.3, the mother of PW.2 that she did not notice any change in her daughter’s physical condition till her 6th month of pregnancy appears to be unnatural and unbelievable. Her admission in the following manner throws some light on this case as to whether the Appellant refused to marry the prosecutrix or the family members of the prosecutrix were not willing to give her in marriage to him allegedly because he belonged to a lower caste. The following extract from her evidence is relevant on this aspect:-
@kUj;Jth; fh;g;gj;jpid fiyf;f KoahJ vd;W brhd;djhYk;. Epynkfk; rk;gtk; gw;wp nfs;tpgl;L vd; kfid jpUkzk; bra;akWj;jjhYk; vjphp kPJ eh’;fs; g[fhh; bfhLj;jpUf;fpnwhk; vd;why; rhpjhd;/ vd; kfs; brhd;dij itj;Jjhd; ehd; g[fhh; bfhLj;jpUf;fpnwd;/ kUj;Jth; fh;ggk; fiyf;f KoahJ vd;W brhd;djhy; jhd; ,e;j g[fhhpid bfhLj;njd; vd;why; rhpjhd;/@
13. She only pleads no knowledge about the love affair and the closeness the Appellant and her daughter moved with each other for the past one year, but does not deny it.
14. Now coming to PW.2’s evidence, she admitted that there was a love affair between her and the Appellant and they used to meet each other as and when they got an opportunity. She has stated that the Appellant never visited her house and they used to meet only near a place called ‘Mandhu’. Her evidence indicated that she had gone to the Appellant’s house once which is in consonance with the defence theory that on his side, there were efforts taken to get the prosecutrix married to the Appellant. It was suggested to PW.11, the investigating officer that after she became pregnant, the Appellant and PW.2 ran out of their house and she was brought back a day prior to the Village Panchayat and to the said suggestion, PW.11 only denied knowledge, but did not rule out the same.
15. There is clear evidence that there was no rape as alleged by the Prosecution. In this case, PW.2 deposed that the first sexual intercourse took place against her will, though her evidence indicated that she became a consenting party later on in view of the Appellant’s promise to marry her. But, if the rape was committed by the Appellant much against her will, she would not have volunteered to submit herself to the cardinal desire of the Appellant subsequent to the alleged first incident of rape and she would not have kept quiet without informing her mother or other family members. Her evidence indicated that the sexual act had not taken place in her house and it is she who had gone to a place where they have indulged in sexual relationship. It is not her case that at the later period, she was forced to have sexual relationship in spite of resistance from her. She has also not stated that the Appellant had sexual relationship with her on the promise to marry her. She has only stated that he threatened to kill her if she disclosed and told her that he would not marry her. It is not safe to rely on her evidence to hold that she was subjected to rape against her will in the first instance and thereafter the Appellant held out the promise to marry.
16. On the evidence adduced on the Prosecution side the question that arises for consideration is as to whether the Appellant had any fraudulent intention of inducing her to sexual inter course and made a false promise to marry. As already stated above, PW.2’s evidence no where indicated that the Appellant held out a promise to marry her and that was the predominant reason for her to agree to the sexual intimacy with him. There is also no reliable evidence to draw an inference that the Appellant had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. In fact, PW.1 and 3 were only suggested in the cross examination by the defence that they were not willing to give her in marriage to the Appellant and that is why they took serious efforts to abort the child. In fact, DW.1 Dr.Saraswathi Mani who had first examined PW.2 clinically has stated that her mother asked her to abort the child and since six months of pregnancy was completed, DW.1 expressed her inability to do abortion.
17. The learned counsel for the Appellant relied on the decision reported in the case of Deelip Singh Alias Dilip Kumar Vs. State of Bihar [2005-SCC-Crl-253] to substantiate his argument that only if it is established by the Prosecution that from the very inception the accused never really intended to marry the prosecutrix and the promise was a mere hoax, no criminal liability could be fastened on the Appellant.
18. The Honourable Supreme Court in the said decision referred to its earlier decision rendered in the case of Uday Vs. State of Karnataka [2003-4-SCC-46] and held as follows:-
“Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her? These are the questions which have to be answered on an analysis of the evidence. The last question raises the allied question, whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. As pointed out by this Court in Uday Case the burden is on the Prosecution to prove that there was absence of consent. Of curse, the position is different if the case is covered by Section 114-A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides.”
19. In the present case, the prosecutrix is a grown up girl and her age is ascertained as between 17 and 18. In the absence of any other material to establish her age, the defence was right in contending that the court should rely on the higher side of the age assessed on radiological examination and as such, the girl would be of 18 years or more than 18 years of age. There is nothing to suggest in PW.2’s evidence that she consented to the act of sexual intercourse on a promise of marriage and continued to indulge in such activity only on the said promise made by the Appellant. Though she stated that she was threatened by the Appellant at the first instance of sexual act, but it clearly appeared from her evidence that she had volunteered herself and it cannot be said that she was not aware of the moral quality of the act and the inherent risk involved in the act. She had admitted the love affair between her and the Appellant and her evidence indicated that she accompanied to the said place whenever she got an opportunity. There is no positive evidence to show that the Appellant had no intention to marry her and no circumstances or instances shown by the Prosecution to infer such conduct on the part of the Appellant. Therefore, the Trial Court’s finding is vitiated by non consideration of material evidence and relevant factors emerging from the Prosecution evidence.
20. Before parting with the case, it is relevant to point that in this case a joint complaint is given by the Panchayatars which is unknown to the criminal procedure. This court in the case of Thethavusamy Vs. Radhakrishnan [2007-2-Crimes-166-Madras] has held that the complaint made by two persons jointly in respect of one and the same occurrence is not valid in law. In this case, the complaint is preferred jointly by Panchayatars on 16.2.2000 which has been referred to All Women Police Station and registered as petition No.50/2000. Only thereafter, a statement has been recorded from the prosecutrix on 3.3.2000. This statement was recorded after the commencement of the investigation and therefore hit by Section 162 of Code of Criminal Procedure and the entire investigation conducted based on a joint complaint cannot be a valid one. It is to be mentioned here that though the Prosecution has proved that the Appellant is the biological father of the child born to the prosecutrix, but there is no evidence to establish beyond reasonable doubt that the Appellant subjected the prosecutrix to sexual act against her will and without her consent and on false promise to marry. Hence, the conviction and sentence passed by the Trial Court cannot be sustained.
21. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on the Appellant by the Trial Court in SC.NO.11/2004 are set aside and he is acquitted of the charges levelled against him. He is directed to be released forthwith unless his presence is required in connection with any other case and the fine amount if any paid is ordered to be refunded to him.
19.01.2010
Index:Yes/No
Web:Yes/No
Srcm
To:
1. The Additional District and Sessions Judge,
Uthagamandalam, Nilgiris District
2. The Public Prosecutor, High Court, Madras
ARUNA JAGADEESAN, J.
Srcm
Pre Delivery Judgement in
Crl.A.No.747/2005
19.01.2010