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2014 Supreme(Mad) 927
Before the Madurai Bench of Madras High Court
P.N. PRAKASH, J.
Karthick Theodre
Versus
State rep. by Inspector of Police
CRL.A. (MD) No. 321 of 2011
Decided on: 30-04-2014
For the Appellant:S. Jayavel, Advocate.
For the Respondent:S. Prabha, Govt. Advocate, (Crl.side).
Headnote:
Indian Evidence Act - Section 3 - Marriage Act, 1961 - Evidence Act - Section 8 – Indian Penal Code - Section 417 and 376 – Criminal Procedure Code - Section 164 – Appeal against conviction - Rigorous Imprisonment – First Information Report - Dramatis personae in this case is prosecutrix - P.W.1 is admittedly a girl born and who had her education in India and Australia where her father was running a restaurant - She settled down Australia some time and came into contact with accused who is also an Indian citizen of Tamil origin but employed - They seem to have fallen in love some time and they had their betrothal – Thereafter they decided to have their wedding and hence they notified Registry of Birth Deaths and Marriages as required under Australian Laws - They perhaps did not have patience to wait till and they started living together even prior to their marriage - Wedding did not take place and after a gap of about two years accused came for marrying one Immaculate Leno – Held, To conclude prosecutrix had left her home voluntarily of her own free will to get married to appellant - She was at relevant time and was hence capable of understanding complications and issues surrounding her marriage to appellant - According to version of events provided by her prosecutrix had called appellant on a number given to her by him to ask him why he had not met her at place that had been pre- decided by them - She also waited for him for a long time and when he finally arrived she went with him to lake where they indulged in sexual intercourse - She did not raise any objection at this stage and made no complaints to any one - Thereafter she also went to with appellant where she lived with his relatives - Here to prosecutrix voluntarily became intimate with appellant - She then for some reason went to live in hostel at University illegally and once again came into contact with appellant at Mandir - Thereafter she even proceeded with appellant to old bus-stand to leave so that two of them could get married in court – However here they were apprehended by police - If prosecutrix was in fact going to marry appellant as stands fully established from evidence on record court fail to understand on what basis allegation of false promise of marriage has been raised by prosecutrix - Court also fail to comprehend circumstances in which a charge of deceit/rape can be leveled against appellant in light of afore-mentioned fact situation - Appeal is allowed
1. The sole accused Karthick Theodre was tried for offences under Section 417 and 376 IPC in S.C.No.202/2009 by the Sessions Court [Mahila Court] Tiruchirappalli and was convicted for the offence under Section 376 IPC by judgment dated 29.09.2011 and sentenced to undergo 7 years Rigorous Imprisonment and pay a fine of Rs.5,000/- and in default to undergo Simple Imprisonment for six months. Challenging the said conviction and sentence, he has preferred this appeal before this Court.
2. The dramatis personae in this case is the prosecutrix. P.W.1 is admittedly a girl born in New Delhi and who had her education in India and Australia, where her father [P.W.2] was running a restaurant. She settled down in Sydney, Australia some time in 2003 and came into contact with the accused, who is also an Indian citizen of Tamil origin, but employed in Sydney, Australia. They seem to have fallen in love some time in 2006-07 and they had their betrothal in Sydney on 07.09.2007. Thereafter, they decided to have their wedding on 19.12.2007 and hence on 09.11.2007 they notified the Registry of Birth, Deaths and Marriages as required under the Australian Laws. They perhaps did not have patience to wait till 19.12.2007 and they started living together even prior to their marriage. The wedding did not take place on 19.12.2007 and after a gap of about 2 years, the accused came to Chennai for marrying one Immaculate Leno in Trichy.
(a) The prosecutrix followed the trail and played spoilsport by lodging a complaint [Ex.P1] on 13.07.2009 to the Inspector of Police [P.W.5], All Women Police Station, Cantonment, Trichy, who registered a case in Cr.No.38 of 2009 under Sections 417, 294(b) and 506(i) IPC and prepared the printed FIR [Ex.P5]. The accused was arrested on the same day by police. The prosecutrix was sent for chemical examination to Mahathma Gandhi Memorial Government Hospital, where she was examined by Dr. Prasanna Lakshmi on 15.07.2009. Dr. Prasanna Lakshmi [P.W.4] in her evidence as well in the Accident Register [Ex.P4] has stated as follows:
"Alleged to have been living together and had sexual contact many times with 1 known person after engagement between November 2007 - April 2008, September 2008 -November 2008 at Australia. That person is said to have refused to marry now and planning to marry another girl.
O/E Patient conscious/oriented. Answering coherently. Attained menarche - 13 years.
MH 4 -5/30 LMP - last week of July
Breast Normal
Axillary & pubic hair normal
P/ASoft
P/VCx ^ ut RV, NS, FF
Opinion:
Victim has lost her virginity as hymen is not intact and easily admits 2 fingers.
Suggested:
USG pelvis -Normal study
Urine preg - test - Negative
Patient is not pregnant at present."
(b) The accused was also sent for chemical examination for potency test and by Certificate Of Examination dated 17.07.2009 [Ex.P6], Dr. A.Karthikeyan, Police Surgeon of KAP Viswanatham Government Medical College, Trichy has given the following opinion:
''Opinion:
I am of the opinion that the individual examined that there is nothing to suggest that he is not capable of taking part in sexual intercourse.''
(c) Since the accused was arrested only for offences under Section 417, 294(b) and 506(i) IPC, he was released on bail by the learned Judicial Magistrate, Trichy on 17.07.2009, but his passport was directed to be handed over to the learned Magistrate. The prosecutrix was not happy with this and so she started making allegations against the police that they had not properly recorded her statement. She alleged that she was raped by the accused in Australia and contended that the police had not properly investigated the case. She engaged a lawyer and filed Crl.O.P.[MD] No.5377 of 2009 before this Court with the following prayer:
"To direct the respondent to record the statement of the petitioner in accordance with law by taking into account all the documents that are in possession of the petitioner and thereafter to alter the relevant provisions of th
