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Sathish Kumar vs The State on 12 September, 2019

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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CRL.A.No.659 of 2012

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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