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Arul vs State Represented By on 27 February, 2020

Crl.A.No.517 of 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 27.02.2020

CORAM:

THE HONOURABLE MR.JUSTICE P.N.PRAKASH

Crl.A.No.517 of 2013

Arul .. Appellant/Accused

Vs.

State represented by
The Inspector of Police,
Kottakuppam All Women
Police Station,
Villupuram District. .. Respondent/Complainant

Criminal Appeal filed under Section 374 Cr.P.C. against the

judgment and order dated 17.07.2013 passed in S.C.No.19 of 2013 on the

file of the II Additional District and Sessions Court, Tindivanam.

For Appellants : Mr.M.Devaraj

For Respondent : Mrs.P.Kritika Kamal
Government Advocate
(Crl.Side)

JUDGMENT

Challenge in this criminal appeal is to the judgment and order

dated 17.07.2013 passed in S.C.No.19 of 2013 on the file of the II

Additional District and Sessions Court, Tindivanam.
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Crl.A.No.517 of 2013

2. The concentrated facts of the case that are distilled

from the evidence on record flow as under:

2.1 The victim girl “X” (PW1) is the daughter of Ramu

(PW2) and niece of Shanmugam (PW3). Her family was originally from

Pulichapallam village in Tindivanam. “X’s” (PW1’s) father Ramu (PW2)

migrated to Bengaluru and was an auto driver. However, Ramu’s (PW2’s)

younger brother Shanmugam (PW3) and his wife Bakiyalakshmi (PW4)

were living in Pulichapallam village and “X” (PW1) used to come to their

house often.

2.2 The appellant was living very near the house of

Shanmugam (PW3) and thereby, “X” (PW1) got acquainted with him.

They were in love with each other for about two years. “X” (PW1) came to

Pulichapallam village in May 2012, for the village temple festival and

stayed in the house of Shanmugam (PW3).

2.3 On 04.05.2012, around 11.00 p.m., the appellant

called “X” (PW1) to meet him in a casuarina grove on the outskirts of the

village and “X” (PW1) also went there. It is alleged that on the promise of

marrying her, the appellant seduced her.

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2.4 Shanmugam (PW3) and his wife Bakiyalakshmi

(PW4) started searching for “X” (PW1). However, “X” (PW1) returned

home late in the night and on the next day, when she was interrogated by

Shanmugam (PW3) and Bakiyalaksmi (PW4), she spilled the beans.

Shanmugam (PW3) approached the parents of the appellant and informed

them of everything and they assured him that they will have a word with

the appellant and get back to them. Shanmugam (PW3) also informed this

matter to his brother Ramu (PW2), who came from Bengaluru a day later

and together, all of them went to the house of the appellant for talks. At

that time, the parents of the appellant disputed the very incident itself and

refused to take “X” (PW1) as their daughter-in-law.

2.5 On the written complaint (Ex-P1) dated 14.05.2012

given by “X” (PW1), Ezhilarasi (PW10), Constable, received the

complaint as a petition in C.S.R.No.56 of 2012 dated 14.05.2012 for

conducing preliminary enquiry.

2.6 Thereafter, Amularasi (PW11), Sub-Inspector of

Police, registered a regular case in Crime No.4 of 2012 on 17.05.2012 for

the offences under Sections 417, 376 and 506 (I) IPC, against the
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Crl.A.No.517 of 2013

appellant and prepared the printed FIR (Ex-P6). She (PW11) went to the

place of occurrence and prepared the observation mahazar (Ex-P2) and

rough sketch (Ex-P7) in the presence of witnesses, Jayamoorthy (PW5)

and Arumugam (not examined). She (PW11) also arrested the appellant on

the same day.

2.7 “X” (PW1) was medically examined by Dr.Geethanjali

(PW9) on 24.05.2012 at 10.30 a.m. and the certificate of examination for

sexual offences was marked as Ex-P4, wherein, she has opined that hymen

was not intact. “X” (PW1) was also subjected to radiological examination

for determining her age and the age certificate (Ex-P5) shows that “X”

(PW1) was between eighteen and nineteen years.

2.8 The appellant was medically examined by Dr.Suresh

(PW8) on 24.05.2012 and the certificate of potency was marked as Ex-P3,

wherein, he has opined that the appellant was not impotent. The appellant

was also subjected to radiological examination for determining his age and

the age certificate (Ex-P10) shows that he had completed twenty two

years.

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2.9 Since all these medical examinations were conducted

ten days after the alleged incident, the medical evidence is not of much

avail to the prosecution case.

2.10 After examining witnesses and collecting various

report, Franvin Dani (PW13), Inspector of Police, completed the

investigation and filed a final report in P.R.C.No.40 of 2012 before the

Judicial Magistrate Court, Vanur, for the offences under Sections 417, 376

and 506 (I) IPC, against the appellant.

2.11 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 in S.C.No.19 of 2013 and was made over to the II

Additional District and Sessions Court, Tindivanam, for trial.

2.12 The trial Court framed charges for the offences under

Sections 417, 376 and 506(I) IPC, against the appellant, who, when

questioned, pleaded “not guilty”.

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Crl.A.No.517 of 2013

2.13 To prove the case, the prosecution examined thirteen

witnesses and marked ten exhibits.

2.14 When the appellant was questioned under Section 313

Cr.P.C. on the incriminating circumstances appearing against him, he

denied the same. From the side of the accused, no witness was examined

nor any document marked.

2.15 After considering the evidence on record and hearing

either side, the trial Court, by judgment and order dated 17.07.2013 in

S.C.No.19 of 2013, acquitted the appellant of the offences under Sections

376 and 506 (I) IPC, but, convicted him of the offence under Section 417

IPC and sentenced him to undergo six months rigorous imprisonment and

to pay a fine of Rs.10,000/-, in default to undergo one month simple

imprisonment. The fine of Rs.10,000/- was directed to be given as

compensation to “X” (PW1).

2.16 Challenging the above conviction and sentence, the

accused has preferred the present criminal appeal.

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Crl.A.No.517 of 2013

3. Heard Mr.M.Devaraj, learned counsel for the

appellant and Mrs.P.Kritika Kamal, learned Government Advocate

(Crl.Side) for the respondent/State.

4. The admitted facts are as follows:

(i) “X” (PW1) is the daughter of Ramu (PW2) and niece of
Shanmugam (PW3);

(ii) “X” (PW1) was living with her father (PW2) in Bengaluru;

(iii) “X” (PW1) would come often to the house of her paternal uncle
Shanmugam (PW3) at Pulichapallam;

(iv) “X” (PW1) was a major at the time of occurrence; and

(v) the appellant is a native of Pulichapallam village and was a
major.

5. “X” (PW1), in her evidence, has stated in Tamil, the

free English translation of which, is as follows:

“I live in Bengaluru. My paternal uncle lives with
his family in Pulichapallam village. On 03.05.2012, I came to
my paternal uncle’s house in Pulichapallam village for temple
festival. On that night, a drama was going on as part of the

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Crl.A.No.517 of 2013

temple festival. The accused called me and told me that he
wanted to speak to me. On 04.05.2012, around 11.00 p.m., I
went to his casuarina grove. The accused was there. He stated
that he will marry me, for which, I told him that she will have
to tell her parents. He accepted. Thereafter, he seduced me. I
resisted, however, he forcibly spoiled me. For about half an
hour, we were together in the grove. At that time, someone
was going around the grove with a torch light. Hence, we
immediately went to our respective homes. My paternal uncle
was searching for me. On seeing me, he asked me where I had
been so long. I told him everything. I called the accused and
informed him that my family has come to know as to what had
happened, for which, he told me that he will not marry me and
if I disclose the same to his parents, he would get rid of me.

On the next day, my paternal uncle and other family members
went to the house of the accused and discussed with his
parents. His mother did not agree for the marriage. The
accused also did not agree. Thereafter, my father, mother and
aunt Manjula went to the house of the accused for mediation
talks and that also failed. Therefore, I lodged a complaint.”

6. In the cross-examination of “X” (PW1), she has stated

that she has studied up to X standard in Bengaluru and therefore, she was

more conversant in Kannada than in Tamil; the complaint was written by

her uncle; her mother got separated from her father; she (PW1) and the

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Crl.A.No.517 of 2013

appellant were in love for about six months; she had consensual sex with

the appellant. However, it was suggested to her that the appellant did not

seduce her and that she was bent upon marrying the appellant as he was

rich, which suggestion, she denied.

7. The learned counsel for the appellant submitted that

right from the beginning, the appellant has been disputing the alleged

incident and since the family of “X” (PW1) wanted her to get married to

the appellant, this case has been foisted.

8. Per contra, the learned Government Advocate

(Crl.Side) refuted the submission made by the learned counsel for the

appellant.

9. The medical evidence shows that, at the time of

occurrence, “X” (PW1) was about 18 – 19 years and the appellant was

about 22 years.

10. “X” (PW1) has stated that she got acquainted with the

appellant during her visits to Pulichapallam village. It was not disputed by
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Crl.A.No.517 of 2013

the defence that the village festival was going on at the time of the

incident. “X” (PW1) has stated that she came to her paternal uncle’s house

on 03.05.2012 for the village temple festival; on 04.05.2012, around 11.00

p.m., the appellant called her and she voluntarily went to his casuarina

grove. It is the assertion of “X” (PW1) that since the appellant promised

that he would marry her, she gave herself up to him. After being together,

the appellant and “X” (PW1) returned to their respective homes quietly.

However, Shanmugam (PW3) and Bakiyalakshmi (PW4) were searching

for “X” (PW1) as could be seen from their evidence.

11. Shanmugam (PW3) has specifically stated that “X”

(PW1) came home very late and when he started interrogating her

thoroughly, she blurted out everything. He has further stated that he, along

with his wife (PW4), went to the house of the appellant and complained to

his parents and initially, they stated that they will enquire with the

appellant and do the needful, but, later, they went back on their words.

12. In the opinion of this Court, the conduct of

Shanmugam (PW3) and Bakiyalakshmi (PW4) was very natural in the

given circumstances. Only after Ramu (PW2) came from Bengaluru, once
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Crl.A.No.517 of 2013

again, the delegation has gone to the house of the appellant for mediation,

but, that too failed. Only thereafter, the complaint in this case was given.

In such circumstances, the delay in giving the complaint cannot be held to

be fatal to the case of the prosecution.

13. It is the case of the appellant that he was an affluent

person. But, there are no materials to draw such an inference. The family

profile of “X” (PW1) shows that her father (PW2) was an auto-driver in

Bengaluru and “X” (PW1) had come to the village for the temple festival.

There appears to be a ring of truth in the testimony of “X” (PW1) that she

was seduced by the appellant on the promise of marriage.

14. The trial Court had acquitted the appellant of the

offence under Section 376 IPC as “X” (PW1) candidly admitted in her

cross-examination that she consented for sex. Her evidence is to the effect

that, she consented, because, the appellant promised to marry her and later

reneged.

15. On a conspectus of the evidence on record, it can be

safely inferred that “X” (PW1) allowed herself to be used by the appellant
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Crl.A.No.517 of 2013

on the night of 04.05.2012 in the casuarine grove, as she believed the

representation of the appellant that he would marry her. The conduct of

the appellant in reneging “X” (PW1) on the very next day of the incident

shows that, even at the inception, he was not inclined to marry her. As a

result, the prosecution has proved the charge under Section 417 IPC.

16. In such perspective of the matter, this Court does not

find any infirmity in the conviction of the appellant of the offence under

Section 417 IPC and the sentence therefor, imposed on him by the trial

Court.

17. However, the learned counsel for the appellant

pleaded for leniency in the sentence, on the ground that both the appellant

and “X” (PW1) have married separately.

18. Taking into consideration the facts and circumstances

of the case, interests of justice will be served, if the substantive sentence

of six months rigorous imprisonment imposed on the appellant for the

offence under Section 417 IPC is reduced to three months rigorous

imprisonment and it is ordered accordingly. However, the sentence of fine
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Crl.A.No.517 of 2013

of Rs.10,000/-, which was ordered to be paid as compensation to “X”

(P.W.1) by the trial Court, stands confirmed. The appellant will be entitled

to set off under Section 428 Cr.P.C., if any.

Resultantly, this criminal appeal is partly allowed. The Trial

Court is directed to secure the appellant and commit him to prison to serve

out the remaining period of sentence, if any.

27.02.2020
nsd

To

1. The Inspector of Police,
Kottakuppam All Women
Police Station,
Villupuram District.

2. The II Additional District
and Sessions Judge,
Tindivanam.

3. The Deputy Registrar, with a direction to return
(Crl.Side) the original records to the
Madras High Court, Court below concerned
Chennai – 104.

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P.N.PRAKASH, J.

nsd

Crl.A.No.517 of 2013

27.02.2020

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