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Prabhu @ Kulandaivelu vs The State Of Tamil Nadu on 18 September, 2018




CRIMINAL APPEAL No(s). 1178 OF 2011
(Arising out of SLP(Crl.)No.9416 of 2015)






(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
Date: 2018.09.24

acquainted with her under the false promise of marriage and had
17:20:25 IST

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

on record.

(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.

(emphasis added)

(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

in part.


(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.

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