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Amali Arockia Selvi vs Maria Michael @ Michael on 4 April, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 04.04.2018

Date of Reserving the Order: 30.11.2017
Date of Pronouncing the Order: 04.04.2018

CORAM

THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

Crl.R.C.(MD). No.914 of 2007

Amali Arockia Selvi … Petitioner/P.W.1/Complainant

-vs-

1.Maria Michael @ Michael … Respondent / Accused

2.The State
rep.by the Inspector of Police
Ilayankudi Police Station
Sivagangai District … Respondent / Prosecuting Agency
(Crime No.255 of 2003)

PRAYER : Criminal Revision Petition is filed under Section 397 r/w 401 of
Criminal Procedure Code, against the Judgment, dated 12.09.2007, made in
S.C.No.121 of 2006, on the file of the Chief Judicial Magistrate-cum-
Assistant Sessions Judge, Sivagangai.

!For Petitioner : Mr.R.Gowri Shankar

^For Respondents : Mr.C.Jeyaprakash for R1
Mr.C.Ramesh
Additional Public Prosecutor for R2

:ORDER

The petitioner / complainant has filed this revision, challenging the
Judgment, dated 12.09.2007, made in S.C.No.121 of 2006, on the file of the
learned Chief Judicial Magistrate-cum-Assistant Sessions Judge, Sivagangai,
acquitting the first respondent / accused from the charges framed against him
under Sections 417 and 376 I.P.C.

2. The case of the prosecution is that on 24.04.2003, at 6.00 p.m., when the
petitioner / de facto complainant was alone in her house, the first
respondent/ accused went inside her house and after locking the doors inside,
raped her and thereafter, he gave assurance that he would marry her.
However, subsequently, the first respondent/ accused had refused to marry her
and thereby, the first respondent / accused had committed the offence
punishable under Sections 417 and 376 I.P.C. Subsequently, on 30.06.2003,
with regard to the said incident, the petitioner / de facto complainant
lodged a complaint before the respondent ? Police.

3. The respondent ? Police, based on the said complaint, registered a case in
Crime No.255 of 2003 under Sections 417 and 376 I.P.C., and after thorough
investigation, filed a final report before the learned jurisdictional
Magistrate, who had taken cognizance of the final report in P.R.C.No.8 of
2004 and inasmuch as the offence punishable under Section 376 I.P.C., being
triable exclusively by the Court of Sessions, the learned Judicial
Magistrate, after furnishing the copy of the documents relied on by the
prosecution to the first respondent / accused under Section 207 Cr.P.C., had
committed the case, under Section 209 Cr.P.C., to the learned Principal
Sessions Judge, Sivagangai, who took the same on file in S.C.No.121 of 2005
and made over the same to the learned Chief Judicial Magistrate-cum-Assistant
Sessions Judge, Sivagangai, for trial. Subsequently, the Trial Court had
framed charges under Sections 376 and 417 I.P.C., against the first
respondent / accused. When the first respondent / accused was explained and
questioned about the charges framed against him, he had denied the charges
framed against him and sought for trial to prove his case and accordingly,
trial was conducted.

4. During the course of trial, on the side of the prosecution, P.Ws.1 to 8
were examined and Exs.P1 to P7 were marked and on the side of the defence, no
witness was examined and no document was marked.

5. After completion of the trial and after examining the oral and documentary
evidence, the Trial Court, by Judgment, dated 12.09.2007, found the first
respondent / accused not guilty for the offence punishable under Sections 376
and 417 I.P.C., and acquitted him from the said charges. Challenging the
same, the present revision has been filed.

6. The learned counsel for the petitioner would submit that the trial Court
has acquitted the accused/first respondent on the ground that there was 70
days unexplained delay in lodging the complaint. However, in the judgment the
trial Court has discussed in para 2 that the revision petitioner’s relatives
have conducted local panchayat headed by P.W.6, asking the accused to marry
her and thereby the alleged delay in lodging the complaint was caused.
Further, the evidence of P.W.1 as prosecutrix is very clear about the
occurrence and the accused made a promise to marry her and he failed to do
so. It is settled law that having sexual intercourse with a girl even may be
with her consent by giving false promise to marry her and later refusing to
marry would attract offences punishable under Section 376 and 417 IPC. The
learned counsel for the petitioner would further submit that in respect of
delay in rape cases is concerned, the settled legal position is that delay in
lodging the complaint is not fatal and would not weaken the prosecution case.
He would further submit that much significance should not have been attached
to delay in a case of rape. Furthermore, no corroboration is needed and the
prosecutrix evidence itself is enough to convict the accused if her evidence
is confident and believable.

7. In support of his contentions, the learned counsel for the petitioner
relied on the judgment rendered in:

1.Rethinam @ Raharethinam vs. State Inspector of Police in Crl.A.No.1345 of
2004.

2.Rajendran and others vs. State of Tamil Nadu reported in 2002 Crl.L.J.
2202.

3.Vetrivel vs. The State rep.by the Station House Officer in Crl.A.No.301 of
2003.

8. In Rethinam @ Raharethinam vs. State Inspector of Police in
Crl.A.No.1345 of 2004, this Court held as follows: (Para 26),
?26.As stated supra, the motive for giving false case against the appellant
by P.W.1 has not been proved. There is no contradiction between the ocular
and medical evidence. Delay in preferring complaint has been properly
explained. Even though the evidence of P.W.3 to P.W.6, who are the co-
students of P.W.1, have not supported the case of P.W.1 and turned hostile,
it will not fatal to the case of the prosecution. As per the dictum of apex
Court that a single related victim in the Indian setting, refusal to act on
the testimony of the victim of sexual assault in the absence of corroboration
as a rule, is adding insult to injury. A girl or a woman in the tradition
bound non-permissive society of India would be extremely reluctant even to
admit that any incident which is likely to reflect on her chastity had ever
occurred. She would be conscious of the danger of being ostracised by society
and when in the face of these factors the crime is brought to light, there is
inbuilt assurance that the charge is genuine rather than fabricated.?

9. In Rajendran and others vs. State of Tamil Nadu reported in 2002 Crl.L.J.
2202., this Court held as follows: (paragraph 20)
?20. Much was said about delay in the F.I.R. Invariably in the rape cases,
there would be delay. The parents of the victim would be reluctant to come to
police to give a complaint of rape, since they may think that the victim’s
future will be spoiled. Under those circumstances, the delay in lodging the
F.I.R. or the delay in F.I.R. reaching the Court in this case cannot be a
ground to reject the prosecution case unless there is a material to show that
the delay has been used by the prosecution to implicate several accused
persons falsely.?

10. In Vetrivel vs. The State rep.by the Station House Officer in
Crl.A.No.301 of 2003, this Court held as follows: (paragraph 18)
?18. Unlike in other cases, in Rape cases, delay in lodging the First
Information Report cannot be urged as a point for doubting the prosecution
case and discarding the same on the ground of delay. More than one reason
could be pointed out for the delay in lodging the Complaint. P.W.2 was aged
about 16-18 years and unmarried. If any police complaint is to be lodged
making allegations of Rape being committed on her, her future would be at
stake. That apart, she has to face the tauntings of the Villagers that she
had been subjected to Sexual Violence at the instance of the accused. In that
circumstance, quite naturally, there would have been reluctance on the part
of the family of P.W.2 to report about the occurrence to the Police. Evidence
of P.W.2 and prosecution case cannot be doubted merely on the ground of delay
in lodging the First Information Report. The learned Additional Assistant
Sessions Judge has rightly found that the delay in lodging the Complaint
would not affect the prosecution case and the same is to be endorsed with.?

11. The learned counsel for the petitioner would submit that if this Court is
not considered to convict the first respondent u/s 376 IPC he prayed to
alternatively convict him under Section 417 IPC since the accused had
promised to marry the revision petitioner and on the promise of marriage
committed sexual intercourse without her consent and cheated her. In that
regard he relied on the judgment rendered in Sivaswamy vs. The Inspector of
Police in Crl.A.No.41 of 2005.

12. The learned counsel for the first respondent would contend that the
learned Chief Judicial Magistrate framed charges and conducted the trial, and
during trial the defacto complainant has been examined as P.W.1, the Doctor
who examined the defacto complainant was examined as P.W.2, the Doctor who
examined the accused/first respondent was examined as P.W.3, the maternal
aunt of the defacto complainant namely Marry was examined as P.W.4, the
father of the defacto complainant was examined as P.W.5, Mr.Nallathambi the
person who conducted panchayat was examined as P.W.6, one Swaminathan was
examined as P.W.7 (Mahazar Witness) and the Investigating Officer was
examined as P.W.8. Exs.A1 to A7 were marked and M.Os., were also marked.
13 The learned counsel for the 1st respondent would contend that a case of
consensual sexual relationship has been falsely projected as a case of rape
for reasons best known to the petitioner. Even as per the evidence of P.W.1
the prosecutrix, the relationship between the first respondent/accused and
her is that of a niece and junior paternal uncle and that it is a prohibited
relationship for marriage and that she was also well aware of it and the same
was also corroborated with P.W.4 and P.W.5. Per contra P.W.1/defacto
complainant has deposed that while attempt has been made by the
accused/first respondent, P.W.1 had made an attempt to prevent im stating
that he is brother by relation. On perusal of evidence of P.W.1 shows that
the statement of prosecutrix did not inspire confidence and it cannot be
taken into account. In this aspect, he relied on the judgment of the Hon’ble
Supreme Court in Kaini Rajan vs. State of Kerala (2013) 9 SCC 113.

14. The learned counsel for the first respondent would further submit that as
per the case of the prosecution on the very next day of the alleged
occurrence, the fact came to the knowledge of P.W.5 the father of the defacto
complainant and therefore, there is a serious infirmity in the case of the
prosecution with regard to delay in preferring the complaint. In this regard
he relied on the judgment of the Hon’ble Supreme Court in Mohd. Ali Alias
Guddu vs. State of Uttar Pradesh (2015) 7 SCC 272.

15. The learned counsel also relied on the judgment of Hon’ble Supreme Court
in Rajesh Patel vs. State of Jharkhand (2013) 3 SCC 791.

16. The learned counsel for the first respondent would further contend that
according to the evidence of P.W.1/Prosecutrix during the time of alleged
occurrence she sustained injuries on her private parts and the blood stains
were found in her saree and it was handed over to the police. It is pertinent
to note that no such material object has been recovered by the respondent
police during the course of investigation and no such material was produced
before the learned court below which also creates suspicion on the part of
the investigation by the second respondent police. It is also pertinent to
note that P.W.2 Doctor has stated that no injuries were found on the private
part of the defacto complainant which clearly proves that the version of the
defacto complainant is an exaggerated one and it lacks confidence. Therefore,
the version of the defacto complainant is highly unbelievable. Apart from
that P.W.2 Doctor has also deposed in his cross examination that on
examination he found that the defacto complainant would have had sexual
intercourse several times. In this aspect he relied upon the judgment of the
Hon’ble Supreme Court in S.Karuppiah vs. State rep. by Inspector of Police,
Veppur Police Station, Cuddalore District (2016) 1 MLJ (Crl) 483.

17. The learned counsel for the first respondent would further contend that
the trial Court has concluded that though the accused denied the sexual
intercourse, as per the evidence it can be presumed that the intercourse said
to have taken place with the consent and therefore the accused cannot be
convicted under Section 376 IPC. Without prejudice to the earlier
contentions and submissions, even assuming the intercourse said to have taken
place with consent then also accused/first respondent cannot be convicted for
the offence under Sections 376 and 417 IPC by reiterating that the
relationship between the victim and the first respondent/accused is that of
junior paternal uncle and a niece (rpj;jg;gh Kiw). In this regard he relied
upon the judgment of this Court in Ganesan vs. State rep.by Deputy
Superintendent of Police, Namakkal (2017) I MLJ (Crl.) 558 and Ekambaram vs.
State by Inspector of Police, Kaatur Police Station, Ponneri, Thiruvallur
2016(2) TNLJ 126 (Criminal).

18. The learned counsel for the first respondent would contend that with
regard to the delay in filing the FIR the reason adduced by the prosecution
is that a panchayat was conducted by P.W.6 on four occasions. It is pertinent
to note that the conduct of panchayat itself was not proved by the
prosecution because as per the evidence of P.W.1 panchayat had been conducted
on four occasions, whereas P.W.6 has deposed that only two times alone
panchayat was conducted and no written resolutions were made. From this it is
clear that conduct of panchayat and its alleged finding were not proved by
prosecution beyond the reasonable doubt and as such delay in lodging the FIR
was also not properly explained on the part of the prosecution. In this
regard he relied upon the judgments in Mohd.Ali Alias Guddu vs. State of
Uttar Pradesh (2015) 7 SCC 272 and Rajesh Patel vs. State of Jharkhand (2013)
3 SCC 791.

19. The learned counsel for the 1st respondent would submit that the trial
judge who had also witnessed the demeanor of the respondent/PW1 in the
witness box had also held that her evidence does not inspire confidence and
he would further submit that as per Section 401 (3) of Cr.P.C., a finding of
acquittal cannot be converted into conviction when there is no illegality or
perversity in the finding of the trial Court. Therefore, he prayed for
dismissal of the revision. He would further contend that all material and
legal aspects have been well considered by the trial Court and no material
has been overlooked by the trial Court.

20. While analysing the decisions referred by the counsel for the 1st
respondent in Kaini Rajan Vs. State of Kerala reported in (2013) 9 SCC 113
the Apex Court held as follows: (Paragraph 12)
?12. Section 375 IPC defines the expression ?rape?, which indicates that the
first clause operates, where the woman is in possession of her senses, and
therefore, capable of consenting but the act is done against her will; and
second, where it is done without her consent; the third, fourth and fifth,
when there is consent, but it is not such a consent as excuses the offender,
because it is obtained by putting her on any person in whom she is interested
in fear of death or of hurt. The expression ?against her will? means that the
act must have been done in spite of the opposition of the woman. An inference
as to consent can be drawn if only based on evidence or probabilities of the
case. ?Consent? is also stated to be an act of reason coupled with
deliberation. It denotes an active will in the mind of a person to permit the
doing of an act complained of. Section 90 IPC refers to the expression
?consent?. Section 90, though, does not define ?consent?, but describes what
is not consent. ?Consent?, for the purpose of Section 375, requires voluntary
participation not only after the exercise of intelligence based on the
knowledge of the significance and moral quality of the act but after having
fully exercised the choice between resistance and assent. Whether there was
consent or not, is to be ascertained only on a careful study of all relevant
circumstances. [See State v. Mango Ram (2000) 7 SCC 224]?

21. In Rajesh Patel vs. State of Jharkhand reported in (2013) 3 SCC 791 the
Apex Court held as follows:

?Penal Code, 1860 ? S. 376 ? Rape ? Appreciation of evidence ?
Contradictions, inconsistencies, exaggerations or embellishments ? Testimony
of prosecutrix unnatural and improbable ? Delay in filing FIR not properly
explained ? Prosecution case not consistent ? Case if one of consensual sex ?
Benefit of doubt extended and conviction reversed ? Criminal Procedure Code,
1973 ? S.154 ? Delay in lodging /filing FIR ? Not properly explained.?

22. In S.Karuppaiah Vs. State, reported in (2016) 1 MLJ 483, this Court held
as follows: (Paragraph 12 and 13)
?12. The Trial Curt has completely believed the testimonies of the
prosecutrix. At this juncture, the Court has to look into Ex.P6, Rough Sketch
wherein it has been clearly stated that the entire occurrence has taken place
on a rough surface and that too, in the midst of a garden-land. The specific
evidence given by P.W.6, Doctor is that she has not found any injury on the
person of the prosecutrix. Further, P.W.6, has clearly opined that the
prosecutrix has been subjected to regular sexual intercourse.

13. The specific case of the prosecution is that the accused has taken the
prosecutirx forcibly to an isolated place and forcibly raped her. Considering
the fact that the entire occurrence has taken place in a garden-land and that
too on a rough surface definitely, the prosecutrix would have sustained
injury on her person. But, P.W.6, has given evidence otherwise. On the side
of the prosecution, an abortive attempt has been made to the effect that the
jacket of the prosecutrix has been marked as M.O.2 and M.O.2 is in a torn
condition. Even assuming without conceding that M.O.2 belongs to the
prosecutrix, on the basis of its condition, the Court can very well infer
that the prosecutrix would have sustained some injuries on her body. But,
P.W.6 has not found any injury; even a scratch on the person of the
prosecutrix. Considering the fact that no injuries are found on the person of
the prosecutrix and also considering that the prosecutrix has been subjected
to regular sexual intercourse, this Court is of the view that the prosecution
has not established the guilt of the appellant/accused, punishable under
Section 376, IPC.?

23. In Ganesan vs. State reported in (2017) 1 MLJ (Crl.) 558, this Court held
as follows:-

?16. For the reasons stated supra, the appellant/accused is entitled for
acquittal on the ground of benefit of doubt for the following reasons:

(i) There was an inordinate delay in lodging the FIR by the complainant,
inspite of the fact that the appellant was having regular sexual intercourse
with her for several occasions, which would show that, by consent, the
prosecutrix had wilfully submitted herself to the appellant to have sexual
intercourse.

(ii) The consent was not in consequence of any misconception of fact and
therefore, the benefit of doubt has to go in favour of the appellant.?

24. In Ekambaram vs. State reported in 2016(2) TLNJ 126 (Crl.), this Court
held as follows:-

?23. Learned counsel for the appellant also relied on a judgment of the
Supreme Court reported in 2014 (5) SCC 678 (Vinod Kumar Vs. State of Kerala),
wherein, the Apex Court held as follows:

“’14. We are in no manner of doubt that in the conspectus that unfolds itself
in the present case, the prosecutrix was aware that the appellant was already
married but, possibly because a polygamous relationship was not anathema to
her because of the faith which she adheres to, the prosecutrix was willing to
start a home with the appellant. In these promises, it cannot be concluded
beyond reasonable doubt that the appellant is culpable for the offence of
rape; nay, reason relentlessly points to the commission of consensual sexual
relationship, which was brought to an abrupt end by the appearance on the
scene of the uncle of the prosecutrix. Rape is indeed a reprehensible act and
every perpetrator should be punished expeditiously, severally and strictly.
However, this is only possible when guilt has been proved beyond reasonable
doubt. In our deduction there was no seduction; just two persons fatally in
love, their youth blinding them to the futility of their relationship.”

24. The dictum laid down by the Apex Court in the above said judgments of the
Supreme Court, is squarely applicable to the facts of the case on hand. In
the case on hand, P.W.1 knowing fully well that the appellant/accused is a
married man, voluntarily and consciously consented to have sexual intercourse
with him and her consent was not in consequence of any misconception of fact.
Therefore, the question of conviction and sentence imposed on the
appellant/accused for the offence under Section 417 IPC does not arise and
hence, the same is liable to be set aside. Consequently, the conviction and
sentence imposed on the appellant/accused for the offence under Section 376
IPC is also liable to be set aside.?

25. In Sathish Kumar vs. State of Tamil Nadu reported in (2016) 1 MLJ (Crl.)
630, this Court held as follows:-

?12. On the basis of the divergent submissions made on either side, the Court
has to look into as to whether the consent alleged to have been given by the
prosecutrix for having sexual intercouse with the first accused would come
within the purview of misconception, as per Section 90, IPC?

13. The learned counsel appearing for the appellant/first accused has drawn
the attention of this Court to the following decisions:

(a) In 2003 SCC (Crl) 775 (Uday Vs. State of Karnataka), the Honourable
Supreme Court has dealt with a case of similar factual situation. In fact,
the Honourable Supreme Court has followed the decision reported in 1984 Crl
LJ 1535 1983 (2) CHN 290(Cal) (Jayanti Rani Panda Vs. State of W.B.) and in
paragraph No.7 of the said judgment it is observed as follows:
“The failure to keep the promise at a future uncertain date due to reasons
not very clear on the evidence does not always amount to a misconception of
fact at the inception of the act itself. In order to come within the meaning
of misconception of fact, the fact must have an immediate relevance. The
matter would have been different if the consent was obtained by creating a
belief that they were already married. In such a case the consent could be
said to result from a misconception of, fact. But here the fact alleged is a
promise to marry we do not know when. If a full grown girl consents to the
act of sexual intercourse on a promise of marriage and continues to indulge
in such activity until she becomes pregnant it is an act of promiscuity on
her part and not an act induced by misconception of fact. Section 90 IPC
cannot be called in aid in such a case to pardon the act of the girl and
fasten criminal liability on the other, unless the Court’ can be assured that
from the very inception the accused never really intended to marry her.”
From a close reading of the observations made by the Division Bench of
Calcutta High Court, it is made clear that the present case is nothing but
identical in factual situations, wherein it has been clearly observed that
Section 90, IPC cannot be called in aid in such a case to pardon the act of
the girl and fasten criminal liability on the other, unless the Court can be
assured that from very inception, the accused never really intended to marry
her.

(b) In 2013 (3) SCC Cri. 464 2011 (14) SCC 475(K.P. Thimmappa Gowda Vs.
State of Karnataka), the Honourable Supreme Court has dealt with a case of
similar situation and ultimately found that the prosecutrix has given a
belated complaint and further, since she has given consent and also above 16
years of age, the act of the accused would not come within the purview of the
Sections 376 and 417,IPC.

14. In the instant case, for the first time both the prosecutrix and first
accused have had a sexual intercourse on 10-06-2011. The specific evidence
given by her as P.W.1 is that after 10-06-2011, during weekends both of them
have had voluntary sexual intercourse. The complaint in question has been
given only on 13-11-2011. Further, on 13-11-2011, an attempt has been made on
the part of the prosecutrix to get married with the first accused.

15. From a close reading of the evidence given by the prosecutrix, it is
easily discernible that only with her consent every sexual intercourse has
been done.

16. The only point urged on the side of hte prosecution is that since the
first accused has given promise of marrying the prosecutrix by way of laying
his hands on her head, due to misconception, the prosecutrix has given her
consent for having sexual intercourse.

17. As per the dictum of the Honourable Supreme Court, there must be a
consistent evidence for the purpose of showing that from very inception, the
accused has never really intended to marry the prosecutrix. ?

26. The learned Additional Public Prosecutor would submit that the state had
not filed any appeal against the order of acquittal.

27. Heard the counsels carefully and consciously perused the materials on
record.

28. The scope of revision against acquittal by a private party has been dealt
with in the decisions reported in AIR 1962 SC 1788 K.Chinnasamy Reddy Vs.
State of Andhra Pradesh and (2002) 6 SCC 650 Bindeswari Prasad [email protected]
B.P.Singh Vs. State of Bihar(Now Jharkand) and held that in a revision
against acquittal the High Court can interfere only in exceptional cases when
there is some glaring defect in the procedure adopted by the court or there
is manifest error on a point of law or that there is manifest illegality,
perversity or infirmity in the judgment of the lower court which had resulted
in the miscarriage of justice. The High Court cannot and should not re
appreciate the evidence resulting in miscarriage of justice in exercise of
revisional jurisdiction in the absence of manifest illegality.

29. Now on analyzing the case on hand and the judgment of the trial
court it is seen that the trial judge had looked into various aspects with
regard to the relationship between the parties, evidences regarding consent,
delay in the F.I.R, medical evidences and also the conduct of the parties in
the witness box and rendered a judgment of acquittal. In my considered
opinion the trial court had not overlooked any material on record. I find no
perversity, illegality or infirmity in the judgment of the trial court
acquitting the 1st respondent/accused.

30. The revision lacks merits and is hereby dismissed. The judgment of
acquittal dated 12.09.2007 in S.C.No.21 of 2006 passed by Chief Judicial
Magistrate-Cum-Assistant Sessions Judge, Sivagangai is confirmed.

To:

1.The Chief Judicial Magistrate

-cum-Assistant Sessions Judge,
Sivagangai

2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

3.The Inspector of Police,
Ilayankudi Police Station,
Sivagangai District.

.

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