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2019 Supreme(Mad) 1457
IN THE HIGH COURT OF JUDICATURE AT MADRAS
A.D. JAGADISH CHANDIRA, J.
V. Subash - Appellant
Versus
State - Respondents
Crl. A. No. 29 of 2010
Decided On : 15-02-2019
Advocate Appeared:
For the Appellant : Balaji Sankara Murthy, Amicus Curiae
For the Respondents: K. Prabakar, APP
Headnote:
Indian Penal Code,1980 - Sections 376,417,415 - Criminal Procedure Code,1973 - Section 313 - Appeal against Conviction - Rape case - Amicus - victim girl Dhanalakshmi alleging that she was working as a Tailor and she was having relationship with Appellant/accused who is resident of area of occurrence and that Appellant/accused is a married person and his wife died four years ago and that before five months from Appellant/accused on false promise to marry her had physical relationship with her - Hence Appellant/accused was charge sheeted for offences under Sections 417 and 376 of IPC - Case was taken on file in by District Sessions Judge Mahizha Court Salem and necessary charges were framed - Accused had denied charges and sought for trial - In order to bring home charges against accused prosecution examined and also marked and is victim girl who gave complaint is mother of is father are residents of area of occurrence - Doctor who examined accused regarding his potency - Sub Inspector of Police who on receipt of had registered a case in under Sections 417 and 376 of IPC and prepared First Information Report - Doctor who examined victim girl - Inspector of Police who conducted further investigation and filed final report against accused under Sections 417 and 376 of IPC - Held, Cheating - Whoever by deceiving any person fraudulently or dishonestly induces person so deceived to deliver any property to any person or to consent that any person shall retain any property or intentionally induces 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 meaning of this section - No evidence against appellant from which it can be conclusively inferred by this Court that there was any fraudulent or dishonest inducement of prosecutrix by appellant to constitute an offence under Section 415 IPC - In complaint victim had stated that she and appellant/accused belong to same street and that they were having a close relationship with each other for five months and that she is aged about 25 years and appellant/accused is aged about years and due to relationship appellant/accused had stated to have told her that he would marry her and had sexual intercourse with her several times and further averment is that he was already married and that his wife passed away four years back and that he has no children and that due to relationship they had sexual intercourse with each other and later on promise that he would marry her she had succumbed to his pressure - Further averment is that prior to two months appellant/accused had informed her that his family members had not agreed for marriage and thereafter they had met at Tuition Centre and that when they were together villagers caught hold of them and brought them to Village Panchayat and only after that relationship was known to her parents and that appellant/accused escaped from Panchayat - Whereas in complaint given to Taluk Legal Service Authority victim had stated that she and appellant/accused were in a relationship with each other for four years and that they were living together as husband and wife and later appellant/accused committed cruelty on her and refused to marry her and thereby she had requested to direct him to marry her - Admittedly victim girl is aged about years and on going through entire evidence there is no material on record to show that appellant/accused either on inducement or on false promise with dishonest intention cheated victim and committed sexual intercourse with her - For conviction of appellant for above said offence it is important that all necessary ingredients constituting an offence under said section must be proved beyond reasonable doubt - It is clear that evidence of Prosecution is neither believable nor reliable to bring home charges levelled against Appellant - This Court is of considered opinion that impugned judgment of conviction and sentence passed by Trial Court is not based on a careful reappraisal of evidence on record and there is no material evidence on record to show that Appellant is guilty of offences charged i.e offence of cheating punishable under Section 417 of IPC and consequently Appellant is entitled for acquittal - Criminal Appeal Allowed
JUDGMENT :
A.D. Jagadish Chandira, J.
1. This Criminal Appeal is, against the judgment of conviction and sentence, dated 14.10.2009, made in SC. No. 149 of 2008, on the file of the learned District Sessions Judge, Mahizha Court, Salem, convicting and sentencing the Appellant for the offence under Section 417 of IPC to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 10,000/-, in default, to undergo three months Rigorous Imprisonment and acquitting the Appellant for the offence under Section 376 of IPC.
2. The case of the Prosecution has arisen on the basis of the complaint Ex. P1, dated 11.10.2003, given by the victim girl, PW. 1, Dhanalakshmi, alleging that she was working as a Tailor and she was having relationship with the Appellant/accused, who is the resident of the area of occurrence and that the Appellant/accused is a married person and his wife died four years ago and that before five months from 11.10.2003, the Appellant/accused, on the false promise to marry her, had physical relationship with her. Hence, the Appellant/accused was charge sheeted for the offences under Sections 417 and 376 of IPC.
3. The case was taken on file in SC. No. 149 of 2008, by the learned District Sessions Judge, Mahizha Court, Salem and necessary charges were framed. The accused had denied the charges and sought for trial. In order to bring home the charges against the accused, the prosecution examined PW. 1 to PW. 10 and also marked Exs. P1 to P9 and Nos. 1 and 2.
4. PW. 1, is the victim girl, who gave the complaint Ex. P1. PW. 2 is the mother of PW. 1. PW. 3 is the father of PW. 1. PW. 4, PW. 5 and PW. 7 are the residents of the area of occurrence. PW. 6 is the Doctor, who examined the accused regarding his potency. PW. 8 is the Sub Inspector of Police, who, on receipt of Ex. P1, had registered a case in Cr. No. 245 of 2003 under Sections 417 and 376 of IPC and prepared Ex. P6, First Information Report. PW. 9 is the Doctor, who examined the victim girl. PW. 10 is the Inspector of Police, who conducted further investigation and filed the final report against the accused under Sections 417 and 376 of IPC.
5. Ex. P1, dated, 11.10.2003 is the complaint given, by PW. 1. Ex. P2 is the requisition letter to conduct medical examination. Ex. P3, dated, 15.11.2003 is the medical certificate of the Appellant/accused. Ex. P4, dated, 3.11.2003 is the age certificate of the accused. Ex. P5, dated, 11.10.2003 is the observation mahazar. Ex. P6, dated, 11.10.2003 is the First Information Report. Ex. P7, dated, 11.10.2003 is the requisition letter to conduct medical examination on the accused. Ex. P8, dated, 29.10.2003 is the medical certificate. Ex. P9, dated, 11.10.2003 is the rough sketch.
6. On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused has come with the version of total denial and stated that he has been falsely implicated in this case. On the side of the defence, one Manoharan, Senior Administrative Assistant of Taluk Legal Services Authority was examined as DW. 1 and the reply, dated 02.04.2004 given by the Appellant/accused to Attur Taluk Legal Services Committee along with connected papers in L.S.A Petition 53 of 2004 was marked as Ex. D1.
7. The court below, after hearing the arguments advanced on either side and also looking into the materials available on record, found the accused/appellant guilty and awarded punishments, as referred to above, which is challenged in this Criminal Appeal.
8. This court heard the submissions of the learned counsel on either side.
9. The learned Amicus Curiae has assailed the impugned judgment of conviction and sentence, on the following infirmities, discrepancies and grounds:-
a. Though the Trial Court came to the conclusion that the allegations are false in respect of the charges under Section 376 of IPC, it committed an erro
