IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No(s). 1178 OF 2011
(Arising out of SLP(Crl.)No.9416 of 2015)
PRABHU @ KULANDAIVELU Appellant(s)
THE STATE OF TAMIL NADU Respondent(s)
J U D G M E N T
(1) Leave granted.
(2) Being aggrieved with the conviction and also sentence of
imprisonment imposed upon him under Sections 313 and 417
I.P.C., the appellant has filed this appeal.
(3) Case of the prosecution is that the appellant-accused,
Prabhu @ Kulandaivelu, was related to Tamilselvi (PW-1) and
Signature Not Verified
Digitally signed by
acquainted with her under the false promise of marriage and had
sexual intercourse number of times with PW-1 in 2003,
resultantly PW-1 became pregnant. It is alleged that against
the wishes of PW-1, the appellant took PW-1 to Rudhramoorthy
Hospital and compulsorily aborted her fetus. The appellant and
his father (since acquitted) were charged for the offences
punishable under Sections 376, 417, 313 and 506(ii) I.P.C. The
Trial Court convicted the appellant for all the offences and
sentenced him to undergo rigorous imprisonment for ten years
for the offence under Section 376 I.P.C.; one year rigorous
imprisonment for the offence under Section 417 I.P.C.; for ten
years for the offence under Section 313 I.P.C. and fine of
Rs.500/- for the offence under Section 506 (ii) I.P.C.
(4) On appeal, the High Court acquitted the father of the
appellant from all the charges. The High Court acquitted the
appellant-accused under Section 376 I.P.C. but affirmed the
conviction and sentence of imprisonment of the appellant under
Sections 417 and 313 I.P.C.
(5) We have heard Ms. Thilakavathi G., learned senior counsel
appearing for the appellant-accused and Mr. M. Yogesh Kanna,
learned counsel appearing for the respondent-State. We have
also perused the impugned judgment and the evidence/materials
(6) In her evidence PW-1 has categorically asserted that the
appellant gave her false promise that he would marry her and
had sexual intercourse with her number of times. The
expression “Cheating” is defined in Section 415 I.P.C. and it
reads as under :
“415 Cheating – whoever, by deceiving any person,
fraudulently or dishonestly induces the person so
deceived to deliver any property to any person, or
to consent that any person shall retain any
property, or intentionally induces the person so
deceived to do or omit to do anything which he
would not do or omit if he were not so deceived,
and which act or omission causes or is likely to
cause damage or harm to that person in body, mind,
reputation or property, is said to “cheat”.
Explanation.-A dishonest concealment of facts is
a deception within t he meaning of section.
(7) By the evidence of PW-1, the prosecution has established
that the appellant herein had induced PW-1 to have sexual
intercourse with him by falsely promising her that he will
marry her. The conviction of the appellant-accused under
Section 417 I.P.C. is based upon proper appreciation of the
evidence of PW-1 and we do not find any reason to interfere
with the same.
(8) Insofar as the conviction of the appellant under Section
313 I.P.C. is concerned, the evidence of Dr. Valli (PW-8)
assumes importance. In her evidence Dr. Valli (PW-8) has
stated that on 21st October, 2004 at 12.00 noon PW-1 came to the
hospital with bleeding and lower abdominal pain along with one
whose name is stated to be registered as “Prabhu”, as her
husband. Dr. Valli (PW-8) further stated that in order to save
the life of PW-1 after obtaining her consent Dr. Valli (PW-8)
has medically terminated the pregnancy of PW-1. Though PW-1
has stated that the abortion was done compulsorily at the
instance of the appellant, the evidence of Dr. Valli (PW-8)
does not support the version of PW-1.
(9) The essential ingredient of Section 313 I.P.C. is that
“Causing miscarriage without woman’s consent”. But as per the
evidence of Dr. Valli (PW-8) consent of PW-1 was taken and,
therefore, it cannot be said that the ingredients of Section
313 I.P.C. has been established by the prosecution.
(10) That apart, as seen from the evidence of PW-8, even when
PW-1 was brought to the hospital, she was already bleeding and
had lower abdominal pain and there was nothing in evidence to
connect that act with the appellant-accused. In the light of
evidence of Dr. Valli (PW-8) and other evidence, the conviction
of the appellant under Section 313 I.P.C. cannot be sustained
and is liable to be set aside.
(11) In the result, the conviction of the appellant under
Section 417 IPC and the sentence of imprisonment for the same
is confirmed. However, the conviction of the appellant-accused
under Section 313 IPC is set aside and this appeal is allowed
(12) The appellant is undergoing sentence of imprisonment from
8th October, 2015 and has already undergone imprisonment of
about three years. The appellant is ordered to be set at
liberty forthwith unless his presence is required in connection
with any other case.
SEPTEMBER 18, 2018.