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IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 27.06.2019

CORAM:

THE HONOURABLE Mr.JUSTICE P.N.PRAKASH

Crl.A.No.76 of 2016

Rajasekar,
S/o.Baskar,
No.63, Jeyaram Street,
Washermenpet,
Chennai-21. .. Appellant/Accused

Vs.

State represented by
Inspector of Police,
H-1, Washermenpet Police Station,
Chennai. .. Respondent/Complainant

Criminal Appeal filed under Section 374 Cr.P.C., to set aside

the judgment and order dated 28.01.2016 passed in S.C.No.382

of 2014 on the file of the Sessions Court (Mahalir

Neethimandram), Chennai.

For Appellant : Mr.S.Sugendran

For Respondent : Mr.G.Ramar
Government Advocate
(Crl. Side)
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JUDGMENT

This criminal appeal has been preferred seeking to set aside

the judgment and order dated 28.01.2016 passed in S.C.No.382

of 2014 on the file of the Sessions Court (Mahalir

Neethimandram), Chennai.

2 The facts in brief leading to the filing of this criminal

appeal are as under:

2.1 It is the case of the prosecution that the appellant

enticed the victim girl X (PW2), aged about 15 years on the

promise of marrying her and eloped with her and had conjugal

relationship with her.

2.2 On the complaint (Ex-P1), lodged by Amsa (PW1),

mother of X (PW2), the respondent police registered a case in

Crime No.916 of 2012 on 13.06.2012 for “girl missing”. During the

course of the investigation, it came to light that X (PW2) had

eloped with the appellant as she was in love with him. The police

altered the case from “girl missing” to Sections 366-A and Section376

IPC. X (PW2) and the appellant surrendered before the police on

19.06.2012. X (PW2) and the appellant were subjected to medical
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examination. X (PW2) was medically examined by Dr.Shanthi

(PW5), who, in her evidence as well in the medical report (Ex-P4),

has stated as follows:

“No external injuries.

Old hymenal tear at 3 o’ clock to 6 o’ clock
positions.”

The appellant was medically examined by Dr.Balasubramanian

(PW7), who, in his evidence as well in the potency certificate (Ex-

P7), has stated that the appellant was potent.

2.3 After completing the investigation, the police filed final

report in P.R.C.No.36 of 2013 before the XV Metropolitan

Magistrate, George Town, Chennai, under Sections 366-A and Section376

IPC, against the appellant.

2.4 On the appearance of the appellant, the documents

relied upon by the prosecution were furnished to him under

Section 207 Cr.P.C. and the case was committed to the Court of

Session in S.C.No.382 of 2014 and was made over to the Sessions

Court (Mahalir Neethimandram), Chennai, for trial.

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2.5 The Trial Court framed charges under Sections 366-A

and Section376 IPC against the appellant. When questioned, the

appellant pleaded “not guilty”.

2.6 To prove the case, the prosecution examined nine

witnesses and marked ten exhibits.

2.7 When the appellant was questioned under Section 313

Cr.P.C. about the incriminating circumstances appearing against

him, he denied the same. On behalf of the appellant, 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

28.01.2016 in S.C.No.382 of 2014, has acquitted the appellant of

the charge under Section 366-A IPC, but, convicted and sentenced

him as under:

Provision under which
Sentence
convicted
376 SectionIPC Seven years rigorous imprisonment and
fine of Rs.1,000/-, in default to undergo
three months simple imprisonment.

2.9 Challenging the conviction and sentence, the appellant

is
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3. When the matter was taken up for hearing, the learned

counsel for the appellant submitted that the appellant has married

X (PW2) and they are now having two children.

4. The appellant, X (PW2), their two children and X’s (PW2)

mother Amsa (PW1) are present. X (PW2) has filed an affidavit

dated 27.06.2019, wherein, she has stated as follows:

“3. I further submit that before the
commencement of the trial, the appellant
and myself married and jointly lived as
husband and wife from appellant’s house.
Out of the wedlock, both of us are having
two children viz., 1. R.Sarveshwaran, born
on 17.06.2014 and 2. R.Harish, born on
01.03.2016.

4. I further submit that if this petition
is not allowed I would be put to irreparable
loss and no hardship is caused to other side.

5. I further submit that my husband is
the only breadwinner of the family. He is
looking after me and my two children who
are going to school and further submit that
except my husband’s earning, no source of
income from my family.”

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5. Heard Mr.S.Sugendran, learned counsel appearing for the

appellant and Mr.G.Ramar, learned Government Advocate (Crl.

Side) appearing for the respondent/State.

6. In the opinion of this Court, just because the appellant

had married X (PW2), the offence cannot be effaced or

compounded. Therefore, this Court cannot acquit the appellant on

the sole ground that he had married X (PW2).

7. However, on perusal of the evidence of X (PW2), before

the Trial Court, it is seen that she has clearly stated that she had

got married to the appellant and is living with him. Therefore, it is

obvious that the appellant had not married X (PW2) after the

judgment of the Trial Court, in order to escape from the

punishment awarded to him.

8. X (PW2), in her evidence, has stated that she was in love

with the appellant and she has left her house with him on

12.06.2012 and on coming to know that the police were searching

for them, they both surrendered to the police. X (PW2) has not

stated that the appellant had premarital sex with her or

deflowered her nor is the medical evidence categorical that X
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(PW2) was raped. Mere hymen tear cannot lead to the inference

that the appellant had raped X.

9. The Trial Court has acquitted the appellant of the offence

under Section 366-A IPC, holding that he had not kidnapped X

(PW2). Therefore, we are left with only the charge under Section

376 IPC, for which, there is no credible and trustworthy evidence

for confirming the conviction.

In the result, this appeal is allowed and the judgment and

order dated 28.01.2016 passed in S.C.No.382 of 2014 on the file

of the Sessions Court (Mahalir Neethimandram), Chennai, is

hereby set aside and the appellant stands acquitted. Fine amount,

if any, paid by the appellant, shall be refunded to him. Bail bond,

if any executed, shall stand discharged.

27.06.2019

Index: Yes/No
nsd

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P.N.PRAKASH, J.

nsd

To

1. The Inspector of Police,
H-1, Washermenpet Police Station,
Chennai.

2. The Sessions Judge,
The Mahalir Neethi Mandram,
Chennai.

3. The Public Prosecutor,
Madras High Court,
Chennai – 104.

Crl.A.No.76 of 2016

27.06.2019

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