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IN THE HIGH COURT OF JUDICATURE AT MADRAS
A.D. JAGADISH CHANDIRA, J.
Madhalaimuthu @ Raja & Another - Appellant
Versus
State re. by the Inspector of Police, Salem - Respondent
Criminal Appeal No. 411 of 2019
Decided On : 15-02-2022
Criminal Procedure Code,1973 - Sections 374 and 164 - Tamil Nadu Prohibition of Harassment of Women Act, 1998 - Section 4 – Indian Penal Code,1860 - Sections 376, 417, 420 read with 34, 294(B), 506(ii), 375 and 90 - Cheating and dishonesty – Commits rape - Allegations levelled against appellants are that A1, son of A2 giving false promise to marry, had forcible sexual intercourse with PW1, the de facto complainant several times - She had delivered a child, which died few days later and when de facto complainant had demanded A1 to marry her, he had refused to marry her and thereupon, when she had complained same to his father, A2, he had given false hope that after marriage of his daughter, he would conduct marriage of PW1 with his son, A1 coming to know that a marriage proposal for A1 with another girl was going on, she alongwith her parents and sister had approached accused demanding justice for her and by that time – Held, Evidence bristles with contradictions and is full of improbabilities - Prosecution has tried to rope in appellant merely on assumptions, surmises and conjectures - Findings of court below do not deserve merit of acceptance or approval with regard to the glaring infirmities and illegalities apparent on face of record resulting in serious and grave miscarriage of justice to appellant - Prosecution has miserably failed to prove its case beyond reasonable doubt and trial Court erred in convicting appellant/ accused on wrong appreciation of facts warranting interference of this Court to set aside impugned judgment - Evidence of victim girl itself goes to suggest that herself and the first accused had love affair for about five years and their physical relationship had continued even after death of the child which she alleged to have given birth at the instance of first accused - Alleged to have been buried by husband of PW1’s sister, who was also not examined by prosecution - Such birth and death of the child were also not registered before appropriate authority by PW1 and in fact, her evidence is that even her parents do not have knowledge about the same which is highly unbelievable - case of the prosecution has been surrounded by cloud of suspicion and the prosecution has not taken efforts to clear same without there being any solitary evidence to link appellants with the offence - Trial Court found the appellants guilty for the offences and convicted and sentenced them - Criminal Appeal stands allowed
JUDGMENT :
Prayer: Criminal Appeal filed under Section 374 Cr.P.C. against the judgment of conviction and sentence passed in S.C.No.120 of 2016 dated 19.6.2019 by the Sessions Judge, Magalir Neethimandram, Salem.
1. Challenging the judgment of conviction and sentence rendered by the Sessions Judge, Magalir Neethimandram in S.C.No.120 of 2016, the accused being son and father have filed the present Criminal Appeal.
2. Allegations levelled against the appellants are that A1, son of A2, by giving false promise to marry, had forcible sexual intercourse with PW1, the de facto complainant several times, resultantly, she had delivered a child, which died few days later and when the de facto complainant had demanded A1 to marry her, he had refused to marry her and thereupon, when she had complained the same to his father, A2, he had given false hope that after marriage of his daughter, he would conduct the marriage of PW1 with his son, A1, however, on a later date, on coming to know that a marriage proposal for A1 with another girl was going on, she alongwith her parents and sister had approached the accused demanding justice for her and by that time, they had abused her with filthy language and threatened her with dire consequences and thereby the appellants stand charged as under:-
| Rank | Charges |
| A1 | Sections 376, 417, 420 read with Section 34, Sections 294(B), 506(ii) IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998 |
| A2 | Section 420 read with Section 34, Sections 294(B), 506(ii) IPC and Section 4 of Tamil Nadu Prohibition of Harassment of Women Act, 1998 |
3. However, the appellants stand convicted and sentenced as under:-
| Rank | Provision of conviction | Sentence |
| A1 | 417, 420 r/w 34 IPC | (i) One year Rigorous Imprisonment and to pay fine of Rs.2000/- in default to undergo three months Simple Imprisonment (ii) Four years Rigorous Imprisonment and to pay fine of Rs.50,000/- in default to undergo six months Simple Imprisonment |
| A2 | 420 r/w 34 IPC | Four years Rigorous Imprisonment and to pay fine of Rs.50,000/- in default to undergo six months Simple Imprisonment |
4. Brief facts of the case, as evinced from the prosecution witnesses and other materials available on record, are as under:-
(ii) While PW1 used to go to her field, A1 used to tease her and later on, he had pulled her into his house and by giving promise to marry her and to make her belief that he would marry her, had forcible sexual intercourse with her on several occasions and thereupon, in the year 2010, she had become pregnant. When she had apprised of the same to the accused, A2, father of A1 had assured her that after conducting the marriage of his daughter, he would arrange for the marriage of PW1 with the A1.
(iii) Subsequently, on development of her pregnancy to the level of seven months, she had not come out of her house and at the instance of her sister Selvarani, she had been staying in a Women’s Home at Athur and she had delivered a male child. When PW1 had informed about the childbirth and requested him to marry her, he had pacified her by saying that he would marry her after the marriage of his sister. Two days later, the child born to PW1 died and it was buried at the river side of their village by her sister’s husband Paulraj. Even thereafter, A1 used to have forcible sexual intercourse with
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