2021 Supreme(Mad) 774

IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. VELMURUGAN, J.
Balamurugan – Appellant
Versus
The Inspector of Police, All Women Police Station, Salem – Respondent
Crl. A. No. 801 of 2019
Decided On : 26-03-2021

Point of law: initially the case was registered against the appellant and two other accused, one is the father of the appellant and another one is paternal uncle of the appellant. None of the witness except P.W.1 spoken about the promise made by the appellant and based on the promise, the defacto complainant had the intimacy and applied for divorce from her husband and also got it. There is no evidence to show that false promise was made by the appellant.

Headnote:

Indian Penal Code, 1860 – Sections 376(1), 417, 506 – Criminal Procedure Code, 1973 – Section 374 – Tamil Nadu Prohibition of Harassment of Woman Act, 1998 – Section 4 – False Promise of Marriage – Order of Conviction – Criminal Appeal is filed against the judgment passed by the Sessions Judge, Court at Salem in S.C. – Respondent police registered the case against the appellant and two others for the offences punishable under Sections 376, 417 and 506(ii) of IPC in Crime and investigated the matter and laid the charge sheet before Judicial Magistrate No.4 (Mahila Court Salem), Mahila Judge has taken the charge sheet on file in PRC. – Since, the offences are triable by Sessions Court the case was committed to learned Session Judge Salem and the same was taken on file in S.C. – Since the offences are against the women, the learned Principal Session Court made over the case to the Mahila Court Salem. – The learned Special Judge after completing the formalities, framed the charges against the accused 1 to 3 for the offences under Sections 376(1), 417, 506 (2) of IPC and 4 of Tamil Nadu Prohibition of Harassment of Woman Act, 1998 against the appellant/A1 and the offences under Sections 417, r/w 34, 506(2) and 4 of Tamil Nadu Prohibition of Harassment of Woman Act, 1998. – Respondent police registered the case against the appellant and two others for the offences punishable under Sections 376, 417 and 506(ii) of IPC in Crime and investigated the matter and laid the charge sheet before the learned Judicial Magistrate No.4 Mahila Judge has taken the charge sheet on file in PRC. – Since, the offences are triable by Sessions Court the case was committed to Session Judge Salem and the same was taken on file in S.C. – Since the offences are against the women, the learned Principal Session Court made over the case to the Mahila Court Salem. – Special Judge after completing the formalities, framed the charges against the accused 1 to 3 for the offences under Sections 376(1), 417, 506 (2) of IPC and 4 of Tamil Nadu Prohibition of Harassment of Woman Act, 1998 against the appellant/A1 and the offences under Sections 417, r/w 34, 506(2) and 4 of Tamil Nadu Prohibition of Harassment of Woman Act, 1998.

Finding of court: It is seen that initially the case was registered against the appellant and two other accused, one is the father of the appellant and another one is paternal uncle of the appellant. None of the witness except P.W.1 spoken about the promise made by the appellant and based on the promise, the defacto complainant had the intimacy and applied for divorce from her husband and also got it. – There is no evidence to show that false promise was made by the appellant. – Combined reading of the entire materials from the prosecution witnesses and documents produced herein would go to show that at the time of starting period of intimacy, the defacto complainant had not divorced her husband and she had 10 year old son, therefore, it is not believable that the appellant made a false promise to marry her believing his word she allowed him to have such an intimacy. – Appellant fully knowing well that the victim was already married and that she has got a 10 year old son. – Therefore, this Court finds that the offence under Section 417 of IPC is not proved. – Therefore, it is held that the appellant has not committed an offence under Section 417 of IPC. – Appellant refused to keep up his promise to marry her. – Appellant made a false promise based on which he had an intimacy with her, therefore he committed an offence under section 417 of IPC. At the time of pregnancy, the defacto complainant was admitted in the hospital and the appellant's name was mentioned as father. – Ex.P5 is the birth certificate of the baby, which also clearly shows that he is the father of the child. Ex.P2 is the invitation for the marriage between the appellant and one Vijayalakshmi who is daughter of P.W.5. Further from the oral and documentary evidence it is proved that there was an intimacy between the appellant and the defacto complainant and also she gave birth to a male child and that the defacto complainant asked for divorce from her husband. After knowing the fact that the appellant arranged his marriage with one Vijayalakshmi, the defacto complainant went to the house of P.W.5 and showed all the photos and she stopped the marriage. – A reading of the evidence of the P.W.1 and Ex.P.5 shows that the appellant has committed an offence under section 4 of the Tamilnadu Prohibition of Harassment of Woman Act 1998. – Conviction and sentence passed under Section 317 of IPC is set aside and the fine amount paid to the same is ordered to be refunded, conviction and sentence passed by the trial Court for the offence under Section 4 of Tamil Nadu Prohibition of Harassment of Woman Act, 1998 is confirmed

Result: Criminal appeal Partly Allowed