CRL.A.No.659 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED 12.09.2019
CORAM
THE HONOURABLE Mr.JUSTICE P.N.PRAKASH
CRL.A.No.659 of 2012
Sathish Kumar .. Appellant/
Accused
Vs
The State
Rep. by the Deputy Superintendent of Police,
Arakkonam Sub Division, Arakkonam,
Vellore District. .. Respondent/
Complainant
Criminal Appeal filed under Section 374(2) Cr.P.C., against the
judgment and order of conviction and sentence dated 28.08.2012 passed by
the Principal Sessions Judge, Vellore in Spl.S.C.No.08 of 2011.
For Appellant : Mr.P.N.Balaji
For Respondent : Mrs.P.Kritika Kamal,
Govt. Advocate (Crl. Side)
JUDGMENT
This Criminal Appeal has been preferred by the appellant against the
judgment and order of conviction and sentence dated 28.08.2012 passed by
the Principal Sessions Judge, Vellore in Spl.S.C.No.08 of 2011.
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2. It is the case of the prosecution that, the appellant and the victim
girl ‘X’, aged about 17 years, were in love and on 17.10.2009, he took her to
Kanniammal temple in Tiruttani and tied a thali around her neck and thereafter,
on the same evening, forcibly had sex with her and left her in the lurch. On
the written complaint (Ex.P1) given by ‘X’, Thillaiyarkarasi (P.W.10), Inspector
of Police, All Women Police Station, Arakkonam registered a case in Crime No.9
of 2009 under Sections 417, Section376, Section506(II) IPC r/w Section 3(i)(x)(xii) of the
SC/ST (POA) Act, 1989 and prepared the printed F.I.R. (Ex.P8).
3. Investigation of the case was taken over by Senthilkumar
(P.W.12), Deputy Superintendent of Police, who had the victim girl and the
appellant medically examined. After examining witnesses and collecting
sufficient evidence, Mahendravarman (P.W.11), Deputy Superintendent of
Police completed the investigation and filed a final report in the Court of the
Judicial Magistrate, Arakkonam on 10.01.2011 for the offences under Sections
417, Section376, Section506(II) IPC r/w Section 3(i)(x)(xii) of the SC/ST (POA) Act, 1989.
Based on the final report, the learned Judicial Magistrate, Arakkonam, by order
dated 12.01.2011, took the case on file as P.R.C.No.1 of 2011 and took
cognizance under Section 190(1)(b) Cr.P.C. of the offences under Sections 417,
Section376, Section506(II) IPC r/w Section 3(i)(x)(xii) of the SC/ST (POA) Act, 1989.
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CRL.A.No.659 of 2012
4. 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
on 28.01.2011. The case was taken on file as Spl.S.C.No.8 of 2011 by the
Court of Session, Vellore. On 05.04.2011, the learned Principal Sessions
Judge, Vellore framed the following charges against the appellant :
“Charge No.I : That you the accused herein on
17.10.2009 at about 8.15 PM on the way to Arakonam from
Tiruthani at Babu Nagar, vacant plot, you by deceiving the
witness Shanthi (P.W.1), who was not lawfully married to you to
believe that she was lawfully married to you and in that belief,
cohabit or have sexual intercourse with you and thereby
committed an offence punishable U/s 493 SectionIPC and within my
cognizance.
Charge No.II : That you the accused herein in the
course of same transaction, on 18.10.2009, when witness
Shanthi contacted you over phone, you committed criminal
intimidation by threatening with dire consequence to the witness
Shanthi that “cd;id mDgtpf;fj;jhd; jhyp fl;ondd;/
cd;Dld; thH ,y;iy/ ,ij btspapy; brhd;dhy;
bfhd;WtpLntd;” and thereby you committed an offence
punishable U/s 506(ii) of SectionIPC and within my cognizance.
Charge No.III : That you accused herein, on the same
date, time and place and in the course of the same transaction,
with the intention of insulting and humiliating the witness Shanthi,
belonging to Hindu Adi-Dravidar Community uttered “ehd;
td;dpah; $hjp eP’;f giwah;/ ,UtUf;Fk; xj;J tuhJ/ cd;
bghz;iz mDgtpf;fjhd; jhyp fl;ondd; cd; bghd;Dld;
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CRL.A.No.659 of 2012
thH KoahJ” and insulted her in public view by degrading her
caste and thereby you committed an offence punishable U/s
3(i)(x) of SC/ST (POA) Act 1989 and within my cognizance.”
5. When questioned, the appellant pleaded “not guilty”. To prove
the case, the prosecution examined 12 witnesses, marked Ex.P1 to Ex.P10.
When the appellant was questioned under Section 313 Cr.P.C on the
incriminating circumstances appearing against him, he denied the same. On
behalf of the appellant, no witness was examined.
6. After considering the evidence on record and hearing either side,
the trial Court, by judgment and order dated 28.08.2012 in Spl.S.C.No.8 of
2011, has convicted and sentenced the appellant as under :
Provision under which convicted Sentence
Section 493 IPC 5 years rigorous imprisonment and fine
of Rs.10,000/-, in default to undergo
1 year rigorous imprisonment
Section 506(II) IPC 2 years rigorous imprisonment and fine
of Rs.3,000/-, in default to undergo
6 months rigorous imprisonment
Section 3(i)(x) of the SC/ST 1 year rigorous imprisonment and fine
(POA) Act, 1989 of Rs.2,000/-, in default to undergo
3 months rigorous imprisonment
The aforesaid sentences were ordered to run concurrently. Challenging the
conviction and sentences, the appellant is before this Court.
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CRL.A.No.659 of 2012
7. Heard Mr.P.N.Balaji, learned counsel for the appellant and
Mrs.P.Kritika Kamal, learned Government Advocate (Crl.Side) appearing for the
respondent State.
8. On going through the records, this Court observed a fundamental
error in the charges that have been framed against the appellant inasmuch as
the trial Court has not framed a charge under Sections 417 and Section376 IPC.
Though cognizance was taken for those offences, no charges were framed and
instead, a charge under Section 493 IPC has been framed. The prosecution
under Section 493 IPC cannot be launched via a police report but, only through
a complaint filed by the aggrieved as mandated by Section 198 Cr.P.C.
9. Mrs.Kritika Kamal, learned Government Advocate (Crl.Side)
submitted that in Ushaben Vs. Kishorebhai Chunilal Talpada [(2012) 6 SCC
353], the Supreme Court has held that a charge for an offence under Section
494 IPC can be framed along with 498A SectionIPC, on a police report. However,
there is no reference to Section 493 IPC in the police report or in the
cognizance order dated 12.01.2011 or in the committal order dated 28.01.2011
of the Magistrate. Of course, the trial Court cannot be nailed to the offences
disclosed in the final report and from the materials accompanying the final
report, a different charge can be framed.
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CRL.A.No.659 of 2012
10. In this case, the victim girl ‘X’ has been consistently saying that
the appellant tied a thali around her neck in Kanniammal temple, Tiruttani and
brought her by his bike near to his village and forcibly had sex with her against
her wish, abandoned her and became scarce thereafter. When her family
members went to his house for talks, they were told that the marriage will not
happen as she (‘X’) is a Dalit and that they (appellant’s family) are caste
Hindus.
11. On these allegations, it is strange as to how a charge under
Section 493 IPC was framed by the trial Court against the appellant. Section
464 Cr.P.C. will not save the present situation because, even during trial, the
appellant had complained of prejudice. The offence under Section 493 IPC is
of a totally different genre qua the offence under Section 417 and Section376 IPC.
Therefore, it has become necessary to remand the matter to the trial Court.
12. This Court carefully perused the evidence of ‘X’ and other
prosecution witnesses. In her testimony, ‘X’ has stated the sequence of events
as set out above, which prima facie discloses the commission of the offences
under Sections 417 and Section376 IPC and not Section 493 IPC. The cross-
examination of ‘X’ by the accused is also on the same premise. In other words,
the appellant was aware about the substance of the charge against him,
though the provision of law was incorrect. Therefore, it is not necessary for
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CRL.A.No.659 of 2012
the trial Court to recall the witnesses under Section 217 Cr.P.C., in the light of
the judgment of the Supreme Court in Ranbir Yadav Vs. State of Bihar
[1995(4) SCC 392]. If the trial Court is of the opinion that the request for
recall is for the purpose of delaying or defeating the ends of justice, it may
reject the same.
In the result, this appeal is allowed and the judgment and order
dated 28.08.2012 passed by the Principal Sessions Judge, Vellore in
Spl.S.C.No.8 of 2011 is set aside and the matter is remanded to the trial Court
for framing charges under Sections 417 and Section376 IPC along with the already
existing charges under Section 506(II) IPC and also under Section 3(i)(x) of the
SC/ST (POA) Act, 1989. The appellant is directed to appear before the trial
Court on 04.11.2019 at 10.30 a.m. If he adopts any dilatory tactics, the trial
Court is at liberty to remand him to custody under Section 309 Cr.P.C. as held
by the Supreme Court in State of U.P. Vs Shambunath Singh [(2001) 4 SCC
667].
12.09.2019
gya
Note : Issue order copy by 16.09.2019
Registry is directed to transmit the original
records to the trial Court forthwith
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CRL.A.No.659 of 2012
P.N.PRAKASH, J.
gya
To
1.The Principal Sessions Judge,
Vellore.
2.The Deputy Superintendent of Police,
Arakkonam Sub Division,
Arakkonam, Vellore District.
3.The Public Prosecutor,
High Court, Madras.
4.The Deputy Registrar,
Criminal Section,
High Court, Madras. CRL.A.No.659 of 2012
12.09.2019
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