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Kannan @ Kannadasan vs State Represented By on 3 February, 2020

Crl.R.C.No.1558 of 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.02.2020

CORAM:

THE HONOURABLE Mr.JUSTICE P.N.PRAKASH

Crl.R.C.No.1558 of 2013

Kannan @ Kannadasan ..Petitioner/Appellant/Accused

Vs.

State represented by
The Inspector of Police,
Vikravandi Police Station,
Villupuram District. .. Respondent/Respondent/
Complainant

Criminal Revision filed under Section 397 r/w 401 Cr.P.C., to

set aside the judgment and order dated 31.10.2011 passed in

S.C.No.304 of 2008 on the file of the Chief Judicial Magistrate-cum-

Assistant Sessions Court, Villupuram, confirmed by the judgment

and order dated 20.11.2013 passed in C.A.No.62 of 2011 on the file

of the Principal Sessions Court, Villupuram.

For Petitioner : Mr.A.N.Rajan

For Respondent : Mr.R.Surya Prakash
Government Advocate
(Crl.Side)

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Crl.R.C.No.1558 of 2013

ORDER

This criminal revision has been filed seeking to set aside the

judgment and order dated 31.10.2011 passed in S.C.No.304 of

2008 on the file of the Chief Judicial Magistrate-cum-Assistant

Sessions Court, Villupuram, confirmed by the judgment and order

dated 20.11.2013 passed in C.A.No.62 of 2011 on the file of the

Principal Sessions Court, Villupuram.

2. The concentrated facts of the case that are distilled from

the records flow as under:

2.1 The victim girl “X” (PW1) (name not divulged for the

sake of anonymity) is the daughter of Chandra (PW2) and Dhayalan

(PW3) and was born on 09.12.1989 vide birth certificate (Ex-P6). At

the time of the incident i.e. in June 2009, she was studying in XI

standard.

2.2 The petitioner was already an accused in an acid attack

case, in connection with which, he was taking refuge in the house of

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Crl.R.C.No.1558 of 2013

his sister, which was two houses away from the house of “X” (PW1).

The petitioner and his sister approached Dhayalan (PW3), father of

“X” (PW1), to help him come out of the acid attack case and

thereby, the petitioner got acquainted with the family of “X” (PW1).

Thereafter, whenever “X” (PW1) went to school, the petitioner

started stalking her and proposing to her. Initially, “X” (PW1)

spurned his offer by saying that she wants to earnestly prosecute

her studies. However, the petitioner started emotionally

blackmailing her by saying that he would die if she does not

positively respond to his love or inter alia, he would even throw acid

on her. At a certain point of time, “X” (PW1) responded positively.

Taking advantage of this, he promised that he will marry her and

deflowered her. “X” (PW1) became pregnant. The family of “X”

(PW1) came to know of it and when the petitioner was approached,

he reneged.

2.3 On the complaint (Ex-P1) given by “X” (PW1), the police

registered a case in Crime No.366 of 2007 and after completing the

investigation, filed a final report in P.R.C.No.32 of 2008 before the

Judicial Magistrate Court No.II, Villupuram, for the offences under

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Crl.R.C.No.1558 of 2013

Sections 417 and 376 IPC, against the petitioner.

2.4 The case was committed to the Court of Session in

S.C.No.304 of 2008 and was made over to the Chief Judicial

Magistrate-cum-Assistant Sessions Court, Villupuram, for trial.

2.5 The trial Court framed charges for the offences under

Sections 417 and 376 IPC and when questioned, the petitioner

pleaded “not guilty”.

2.6 To prove the case, the prosecution examined eleven

witnesses and marked eight exhibits.

2.7 When the petitioner was questioned under Section 313

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

he denied the same. From the side of the petitioner, no witness was

examined nor any document marked.

2.8 After considering the evidence on record and hearing

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

31.10.2011 in S.C.No.304 of 2008, convicted and sentenced the

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Crl.R.C.No.1558 of 2013

petitioner as follows:

Provision under
Sentence
which convicted
Three years rigorous imprisonment and fine of
Rs.10,000/-, in default to undergo six months
Section 376 IPC
simple imprisonment, out of which, Rs.8,000/-
shall be given to the victim girl “X” (PW1).
Fine of Rs.1,000/-, in default to undergo three
Section 417 IPC
months simple imprisonment.

2.9 The appeal in C.A.No.62 of 2011 filed by the petitioner

was dismissed by the Principal Sessions Court, Villupuram, on

20.11.2013.

2.10 Aggrieved by the concurrent findings of fact arrived at

by the Courts below, the petitioner has preferred the present

criminal revision invoking Section 397 r/w 401 Cr.P.C.

3. Heard Mr.A.N.Rajan, learned counsel for the petitioner and

Mr.R.Surya Prakash, learned Government Advocate (Crl.Side) for

the respondent/State.

4. Before adverting to the rival submissions, it may be necessary

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Crl.R.C.No.1558 of 2013

to state here that while exercising revisional jurisdiction in a case

involving concurrent findings of fact arrived at by the two Courts

below, the High Court cannot act as a second appellate Court [See

State of Maharashtra vs. Jagmohan Singh Kuldip Singh Anand

and Others, etc.1]. Very recently, in Bir Singh vs. Mukesh Kumar2,

the Supreme Court has held as under:

“17. As held by this Court in Southern Sales
Services v. Sauermilch Design and Handels GmbH
[Southern Sales Services v. Sauermilch Design and
Handels GmbH, (2008) 14 SCC 457], it is a well-

established principle of law that the Revisional Court will
not interfere even if a wrong order is passed by a court
having jurisdiction, in the absence of a jurisdictional
error….. (emphasis supplied)”

5. The learned counsel for the petitioner submitted that “X”

(PW1) was more than eighteen years at the time of incident, which

fact was overlooked by the Courts below. He further submitted that

“X” (PW1) had consensual sex with the petitioner and was not raped.

6. Per contra, the learned Government Advocate (Crl.Side)

refuted the submissions made by the learned counsel for the

1(2004) 7 SCC 659

2(2019) 4 SCC 197

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Crl.R.C.No.1558 of 2013

petitioner.

7. This Court gave its anxious consideration to the rival

submissions.

8. With regard to the age of “X” (PW1), both the Courts below

have given a clear-cut finding that her date of birth is 09.12.1989.

Dr.Veeramuthu (PW11), who conducted age determination test, has

also stated that “X” (PW1) was between sixteen and eighteen years of

age on the date of her examination viz., 03.07.2007. The age

certificate issued by Dr.Veeramuthu (PW11) was marked as Ex-P8.

Apart from that, the transfer certificate (Ex-P7) shows that “X” (PW1)

was born on 09.12.1989 and was studying in school.

9. Therefore, this Court is of the opinion that there is no

perversity in the findings of the trial Court that, “X” had not attained

the age of eighteen at the time of incident. Now, we are left with the

solitary evidence of “X” (PW1). This Court carefully perused the

testimony of “X” (PW1).

10. “X” (PW1), in her evidence, has graphically stated as to how

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she came into contact with the petitioner, as to how the petitioner

started following her to school, proposing to her by saying that he

would marry her, seducing her on the promise of marriage,

impregnating her and thereafter reneging. The defence was not able to

make any serious dent in the evidence of “X” (PW1).

11. In view of the foregoing discussion, this Court does not find

any infirmity in the judgments and orders passed by the Courts below,

warranting interference. In fact, the trial Court should have sentenced

the petitioner to seven years rigorous imprisonment for the offence

under Section 376 IPC, as the law stood then. The trial Court has not

given any reason for reducing the sentence to three years rigorous

imprisonment. The State also has not chosen to challenge the

sentence imposed on the petitioner by the trial Court.

Resultantly, this criminal revision is dismissed as being devoid of

merits. The trial Court is directed to secure the accused and commit

him to prison to serve out the remaining period of sentence.

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Crl.R.C.No.1558 of 2013

03.02.2020
nsd

To

1. The Chief Judicial Magistrate

-cum-Assistant Sessions Judge,
Villupuram.

2. The Principal Sessions Judge,
Villupuram.

3. The Inspector of Police,
Vikravandi Police Station,
Villupuram District.

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

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Crl.R.C.No.1558 of 2013

P.N.PRAKASH, J.

nsd

Crl.R.C.No.1558 of 2013

03.02.2020

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