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2008 DIGILAW 1758 (MAD)

Sakthivel v. State by Station House Officer

2008-06-13

P.R.SHIVAKUMAR

body2008
Judgment :- This Criminal Revision Case is directed against the judgment of the learned Additional District Judge (Fast Tract Court No.I), Cuddalore at Chidambaram dated 110. 2005 made in Criminal Appeal No.40/2005 confirming the judgment of conviction pronounced by the learned Judicial Magistrate No.2, Chidambaram in C.C.No.54/2004 dated 29.03.2005 and the punishment imposed thereon. 2. The facts leading to the filing of the Criminal Revision Case are as follows:- Based on the complaint of P.W.1, a case was registered in Crime No.3/2004 on the file of All Women Police Station, Chidambaram against the petitioner herein for an alleged offence punishable under Section 417 of IPC. The Inspector of Police of the said Police Station, after investigation, submitted a final report on the file of the Judicial Magistrate No.2, Chidambaram alleging that the petitioner herein had committed offences punishable under Sections 417 IPC and Section 4 of the Dowry Prohibition Act and praying that he should be prosecuted and punished for the said offences. The same was taken on file as C.C.No.54/2004 by the said Magistrate. Necessary charges were framed and the petitioner herein (accused in the said C.C.No.54/2004) pleaded not guilty. He was tried for the said offences in which 10 witnesses (P.W.1 to P.W.10) were examined and four documents (Ex.P1 to P4) were marked on the side of the prosecution. After completion of prosecution evidence, the petitioner herein/accused was questioned under Section 313(1)(b) of Cr.P.C. regarding the incriminating materials found in the evidence adduced on the side of the prosecution. He denied them as false and reiterated his stand that he was not guilty. No witness was examined and no document was marked on the side of the Revision Petitioner herein/accused. The learned Judicial Magistrate No.1, Chidambaram, upon an appreciation of evidence in the light of the arguments advanced on either side, the learned Judicial Magistrate found him not guilty of the offence under Section 4 of the Dowry Prohibition Act and acquitted him of the said charge. However, the learned Judicial Magistrate found him guilty of the offence punishable under Section 417 of IPC and convicted him for the said offence. After questioning the Revision Petitioner/accused regarding sentence under Section 248(2) of Cr.P.C., the trial court sentenced him to undergo rigorous imprisonment for a period of one year, but no fine was imposed. 3. However, the learned Judicial Magistrate found him guilty of the offence punishable under Section 417 of IPC and convicted him for the said offence. After questioning the Revision Petitioner/accused regarding sentence under Section 248(2) of Cr.P.C., the trial court sentenced him to undergo rigorous imprisonment for a period of one year, but no fine was imposed. 3. Challenging the conviction and sentence imposed on him for the offence punishable under Section 417 of IPC, the petitioner herein/accused preferred an appeal under Section 374 of Cr.P.C. on the file of the Principal Sessions Judge, Cuddalore. After the said case was taken on file, the same was made over to the Fast Track Court No.1, Cuddalore at Chidambaram. The learned Additional Sessions Judge (Fast Track Court No.1), Cuddalore at Chidambaram, after hearing, confirmed the judgment of conviction and the sentence imposed by the trial court and accordingly dismissed the appeal. Hence the petitioner/accused has approached this court by way of the present Criminal Revision Case challenging the correctness of the judgment of the lower appellate court. 4. This court heard the arguments advanced by Mr.A.Stalin, learned counsel appearing on behalf of the petitioner and Mr.R.Muniappa Raj, learned Government Advocate (Crl. Side) appearing on behalf of the respondent. This court gave its anxious consideration to the above said submissions made by the learned counsel on either side. The materials available on record were also perused. 5. The accused in C.C.No.54/2004 on the file of the learned Judicial Magistrate No.2, Chidambaram who was prosecuted for alleged offences punishable under Section 417 IPC and Section 4 of the Dowry Prohibition Act and acquitted for the offence of dowry demand punishable under Section 4 of Dowry Prohibition Act but convicted and sentenced to undergo one year rigorous imprisonment for the offence punishable under Section 417 IPC has come forward with this Criminal Revision Case after unsuccessfully challenging the same before the lower appellate court namely, Additional Sessions Judge, Fast Tract Court No.1, Cuddalore at Chidambaram in C.A.No.40 of 2005. 6. The prosecution case, in brief, is as follows:- P.W.1 who was the defacto complainant and the petitioner herein/accused were in love with each other for a period of 3 years prior to the date of complaint. As the petitioner/ accused promised to marry P.W.1, she shared her bed with him consequent to which she became pregnant. 6. The prosecution case, in brief, is as follows:- P.W.1 who was the defacto complainant and the petitioner herein/accused were in love with each other for a period of 3 years prior to the date of complaint. As the petitioner/ accused promised to marry P.W.1, she shared her bed with him consequent to which she became pregnant. Thereafter she was persuaded by the petitioner/accused to terminate the pregnancy and accordingly same was done. Even threafter, P.W.1 – defacto complainant once again conceived because of the sexual intercourse she had with the petitioner/accused. As such she requested the petitioner/accused to marry her. But unfortunately, the petitioner/accused demanded dowry from her and refused to marry her if his demand for dowry was not met with. By the said act on the part of the petitioner/accused, he was liable to be prosecuted and punished for the offences under Section 417 of IPC and Section 4 of Dowry Prohibition Act. 7. So far as the charge of committing an offence punishable under Section 4 of the Dowry Prohibition Act is concerned, the petitioner herein/accused was acquitted by the trial court itself holding him not guilty of the said offence as the said offence was not proved beyond reasonable doubt by the prosecution. As against the said acquittal, no appeal or revision has been preferred hence the same has become final. 8. So far as the other charge, namely the charge that the petitioner/accused had committed an offence punishable under Section 417 is concerned, the Trial court held him guilty, convicted him and sentenced him to undergo rigorous imprisonment for one year. The lower appellate court has also confirmed the same. The said concurrent judgments of the courts below are challenged, as incorrect and against law, in the present Criminal Revision Case. The learned counsel for the petitioner relying on the judgment of the Honble Supreme Court in "Uday Vs. State of Karnataka" reported in "2003 Supreme Court Cases (Crl) 775" and another judgment of the Calcutta High Court in "Md.Mahasin Sk V. Sayeda Khatun Bibi and another" reported in "2005 CRI.L.J. 3162". Relying on the above said judgment of the Honble Supreme Court in Uday Vs. State of Karnataka" reported in "2003 Supreme Court Cases (Crl) 775" and another judgment of the Calcutta High Court in "Md.Mahasin Sk V. Sayeda Khatun Bibi and another" reported in "2005 CRI.L.J. 3162". Relying on the above said judgment of the Honble Supreme Court in Uday Vs. State of Karnataka, the learned counsel for the petitioner argued that a prosecutrix deeply in love with the accused having sexual intercourse with him on a promise that he would marry her at a later date and becoming pregnant could not be said to have given her consent under a misconception of fact that such consent would be a valid consent to negative the criminality of the act of the accused and that hence the conviction of the petitioner/accused for the offence under Section 417 IPC was unsustainable. Relying on the above cited judgment of the Calcutta High Court in Md.Mahasin Vs. Sayeda Khatun Bibi case, the learned counsel for the petitioner argued further that if a fully grown up girl consented to the act of sexual intercourse on a promise of marriage and continued to indulge in such activities until she became pregnant, it was an act of promiscuity on her part and that the plea of cheating should be negatived in such cases. It is the further contention of the learned counsel for the petitioner that the fact that the prosecutrix continued to have sexual intercourse with the petitioner/accused even after termination of the pregnancy for the first time would show that she was not induced by any promise as alleged and her act of having sexual intercourse with the petitioner/accused was nothing but an act of promiscuity on her part. 9. Per contra, the learned Government Advocate contended that the judgment of the Apex Court relied on by the learned counsel for the Petitioner had no application to the case on hand in so far as the question involved in the case before the Apex Court was -"whether the consent given by the prosecutrix therein was one given under a misconception of fact as contemplated in Clause 4 of Section 375 IPC?" - whereas the petitioner/accused in the case on hand was prosecuted for a different offence, namely an offence of cheating punishable under Section 417 IPC. Section 375 defines the offence of rape. Section 375 defines the offence of rape. As per the main clause "a man is said to commit rape when he has sexual intercourse with a women against her will or without her consent except in the circumstances falling under the exception appended to the said section. Clause three of the said section makes the consent of the woman obtained time by putting the woman or any person in whom she is interested in fear of death or of injury – not a defence to the prosecution for the offence of rape. Fourth clause of the section makes the consent of the woman not a defence for the said offence if such consent is given under misconception that she was legally wedded to that man. Specific instances vitiating valid consent as a defence in a prosecution for the offence of rape have been provided under clauses 3 to 6 of Section 375 IPC. Clause 4 deals with acts of a man having sexual intercourse with a women with her consent when he knows that the said consent was given by her on an erroneous belief that he was the other man to whom she was legally married. While considering the applicability of the said provision to a case of rape, the Honble Apex Court observed that the prosecutrix who knew well that the accused therein was not the person to whom she was legally married but continued to meet him and often had sexual intercourse with him which resulted in her pregnancy, albeit on a promise made by him to marry her on a later date, could not be construed to have given consent for such sexual intercourse under the misconception of fact referred to in Clause 4 of 375 IPC. 10. The said principle applicable specially to Section 375 IPC cannot be extended to an offence under Section 417 IPC. Presence of consent will not take away an act which otherwise falls under Section 417. The very definition of cheating under Section 415 IPC will show that a person allegedly cheated acts voluntarily but believing the promise made by the other person. For an offence under Section 417 of IPC it shall be sufficient to induce the other person by deceit to do or omit to do anything which he/she would not do or omit to do if he/she is not deceived. For an offence under Section 417 of IPC it shall be sufficient to induce the other person by deceit to do or omit to do anything which he/she would not do or omit to do if he/she is not deceived. If one makes a promise without the idea of fulfilling such a promise and thereby induces other person to do or omit to do which he/she would not do or omit to do if not so deceived, then the offence of cheating becomes complete. Therefore, this court concurs with the view expressed by the learned Government Advocate that the judgment of the Apex Court in Uday Vs. State of Karnataka does not have any application to the case on hand. 11. So far as the other judgment of the Calcutta High Court relied on by the learned counsel for the Petitioner is concerned, of course, the person prosecuted for an offence under Section 417 IPC in the said case was at last acquitted by the High Court holding that there was no element of cheating. The view expressed by the learned single judge of the Calcutta High Court in Md.Mahasin Sk V. Sayeda Khatun Bibis case that in case there was no element of misconception of fact then the offence under Section 417 IPC could not be made out does not reflect the correct law in this regard. Applying the observations made by the Honble Apex court in Uday Vs. State of Karnataka regarding the factor vitiating the consent under Clause 4 of Section 375 with reference to a prosecution for an offence under Section 376 IPC to a case of cheating under Section 417 IPC, according to the considered view of this court shall not be proper. The reasons are given in the foregoing discussions. Apart from the same, the said judgment of the Calcutta High court cannot be applied to the facts of this case because, on evidence, the said court found that there was no element of cheating. In the case on hand, it is not denied that the petitioner and the prosecutrix (P.W.1) were in love with each other and the said love affair went on for a period of 3 years during which period she became pregnant twice. In the case on hand, it is not denied that the petitioner and the prosecutrix (P.W.1) were in love with each other and the said love affair went on for a period of 3 years during which period she became pregnant twice. As seen from evidence, the prosecutrix continued to have sexual intercourse with the petitioner/accused even after she became pregnant for the first time and the same was terminated. The said act of continuing to have sexual intercourse with the petitioner/accused would, at the outset, look like a voluntary act of having sexual intercourse out of promiscuity. Generally, in cases wherein the accused person denies having made such a promise and thereby induced the prosecutrix to have sexual intercourse with him, on facts, there is possibility of holding that she would have had sexual intercourse with the accused out of promiscuity. On the other hand, if it is proved or admitted that the accused gave such a promise before such an intercourse, the concept of promiscuity has got to be ruled out. In such cases the accused can be convicted based on the uncorroborated testimony of the prosecutrix. 12. In the present case, there is clear admission on the part of the petitioner/accused that there was a love affair between him and the prosecutrix (P.W.1) and that the petitioner/accused was the cause for her pregnancy. P.W.1, the prosecutrix has given clear testimony in her evidence that she had sexual intercourse with the accused because he made a promise to marry her. Not even a suggestion was made to P.W.1 during cross-examination that the petitioner/accused did not make any such promise or that the prosecutrix consented for having sexual intercourse not because such a promise was made by him. On the other hand, a specific suggestion was made to the prosecutrix (P.W.1) that the petitioner/accused was always ready and willing to marry the prosecutrix (P.W.1). The said suggestion tantamount to a clear admission that he made such a promise and pursuant to such a promise, the prosecutrix shared her bed with him. The only contention raised by the accused based on such a suggestion was that he did not go back from the promise. The said suggestion tantamount to a clear admission that he made such a promise and pursuant to such a promise, the prosecutrix shared her bed with him. The only contention raised by the accused based on such a suggestion was that he did not go back from the promise. But consideration of the entire evidence in the case would clearly establish that though the petitioner/accused did have sexual pleasure with the prosecutrix after giving her a promise to marry her, later on he went back from the promise which prompted the prosecutrix (P.W.1) to lodge a complaint with the police through her father. Clear evidence has been adduced to the effect that even after the complaint was lodged, the petitioner/accused had not come forward to fulfill his promise of marrying the prosecutrix and the same resulted in filing a charge-sheet against him. Taking into account all the above said facts and circumstances of the case, this court comes to the conclusion that the Trial Court as well as the Lower Appellate Court, on proper appreciation of evidence and principles of law came to the correct conclusion that the petitioner / accused was guilty of an offence punishable under Section 417 of IPC. This court sees no defect or infirmity in the conviction recorded by the Trial court and confirmed by the Lower Appellate court regarding the charge for offence under Section 417 of IPC. 13. Taking into account all the attending facts and circumstances of the case and punishment prescribed for the offence punishable under Section 417, this court is of the view that the sentence of imprisonment for one year awarded by the Trial court and confirmed by the Lower Appellate Court needs no interference in this revision, as there is no error or illegality in the same. There is no merit in the Criminal Revision Case and the same deserves to be dismissed. 14. Accordingly, the Criminal Revision Case is dismissed. Consequently, the connected miscellaneous petition is also closed.