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2015 DIGILAW 2592 (MAD)

State v. S. Subramanian

2015-07-22

S.NAGAMUTHU

body2015
Judgment S. Nagamuthu, J. 1. The respondent herein is the sole accused in S.C. No. 166 of 2006 on the file of the learned Assistant Sessions Judge, Virudhunagar. He stood charged for the offences under Sections 417, 420 and 376 IPC. The trial Court, by judgment dated 28.08.2008, acquitted the respondent. The State is aggrieved by the same. That is how the appellant / State has come up with this appeal. 2. The case of the prosecution in brief is as follows; (a) PW1 in this case is a victim. According to the case of the prosecution, on 15.01.2006 at about 3.00 p.m. when PW1 alone was at her house, the accused came to her house, made a false promise of marriage and had forcible sexual intercourse with her. This, according to the prosecution, amounts to offences under Sections 376, 417 and 420 IPC. The accused denied the charges. (b) In order to prove the charges on the side of the prosecution as many as 15 witnesses were examined, 10 documents were exhibited and two material objects were marked. PW1 - the victim girl has stated that the accused was moving with her in a friendly manner for about four years prior to the occurrence. On 15.01.2006, the respondent came to her house at about 3.00 p.m. and without her consent, had sexual intercourse with her. Then, he warned her not to disclose the same to anybody. He further told her that if she told anybody about the occurrence, he would not marry her. He also told, after the occurrence, that he would marry her. Therefore, PW1 did not inform the same to anybody else. The accused again came to her house on 31.03.2006 as well as on 01.04.2006 and stayed with PW1 at her house even during night hours. From 02.04.2006 onwards, the accused did not turn up. Between 15.01.2006 and 31.03.2006, according to PW1, they together visited many places, including a local temple and therefore, their moving closely was known to others also. On 25.04.2006, according to her, she tried to contact him over phone as he did not turn up after 01.04.2006. At that time, the accused told her that he would give Rs. 2 lakhs to her and with that she should disconnect all her relationship with him. Thereafter, PW1 told her mother about the occurrence. On 25.04.2006, according to her, she tried to contact him over phone as he did not turn up after 01.04.2006. At that time, the accused told her that he would give Rs. 2 lakhs to her and with that she should disconnect all her relationship with him. Thereafter, PW1 told her mother about the occurrence. Then, her mother and others spoke to the mother of the respondent. She also represented that she would give Rs. 2 lakhs for PW1 to disconnect all her relationship with the accused. Thereafter, on 18.05.2006, according to her, she made a complaint to Sivagiri Police Station under Ex.P1. (c) PW2 is the father of PW1. He has stated that between 2000 to 2006, the respondent used to come to his house and he also used to stay occasionally at his house. On 15.01.2006 at about 3.00 p.m. PW1 alone was at his house as he and his wife had gone out. Later he came to know that on that date, the respondent had sexually exploited PW1. The accused wanted PW2 to purchase a motorcycle in his name. According to him, he purchased a motorcycle by paying Rs. 10,000/- as advance and gave the same to the respondent. Thereafter, on 31.03.2006, the accused came to his house, stayed their for one day and left his house informing that he would return after due intimation of his brother. But, he did not turn up. On 25.04.2006 when he contacted the accused, he told that he would give Rs. 2 lakhs to his daughter and with that PW2 should stop demanding for marriage. (d) PW3 is the mother of PW1, who has also stated about the relationship between PW1 and the accused, and the fact that on 15.01.2006 she was not at home. She has further stated that the accused told that he would give Rs. 2 lakhs, if PW1 gave up all her connections with the accused. PW4 is a villager. He has turned hostile and he has not supported the case of the prosecution in any manner. PW5 is also a villager and a milk vendor, and he used to supply milk to the people residing in that locality. On one occasion, according to him, he found the accused with PW1. When PW5 enquired about the accused, PW1 told him that the accused was his cousin and she was going to marry him. PW5 is also a villager and a milk vendor, and he used to supply milk to the people residing in that locality. On one occasion, according to him, he found the accused with PW1. When PW5 enquired about the accused, PW1 told him that the accused was his cousin and she was going to marry him. She has further stated that subsequently also on one occasion, he found the accused and PW1 alone in the house of PW1. PW6 is also a villager. He has stated that on few occasions, he had seen PW1 and the accused together at the house of PW1. He has further stated that subsequently he came to know about the occurrence. (e) PW7 is the uncle of PW1. He has spoken about the fact that he heard about the occurrence subsequently. PW8 - Head Constable has spoken to the fact that she took PW1 to the hospital for medical examination as directed by the Judicial Magistrate Court No. I, Virudhunagar. Similarly, PW9, who is also a Head Constable, has spoken to the fact that she took the accused for medical examination. During the course of investigation, PW1 was examined by Dr. Meenambal (PW10) at Government Hospital, Virudhunagar. At that time, PW1 told her that she was closely moving with a male by about four years with whom she had sexual intercourse for about one year. The Doctor had found that PW1 had been subjected to sexual intercourse but there was no recent sign of any rape. According to her, the vagina of PW1 allowed free movement of two fingers. PW11 is the Doctor, who examined the accused, has stated that the accused was capable of performing penile sex with a woman. PW12 and PW13 who are the Police Constables, have spoken to the fact that they took the accused and PW1 to the hospital for medical examination. PW14 - Dr. Vijayakumar, examined PW1 on 22.06.2006. He took X-ray and finally he gave opinion that PW1 had completed 16 years of age but not completed 18 years of age. PW15 was the then Inspector of Police, attached to Virudhunagar All Woman Police Station, registered the present case on the complaint of PW1 at 1.30 p.m. on 20.06.2006. Ex.P1 is the complaint and Ex.P10 is the FIR. She forwarded documents to the Court and took up the case for investigation. PW15 was the then Inspector of Police, attached to Virudhunagar All Woman Police Station, registered the present case on the complaint of PW1 at 1.30 p.m. on 20.06.2006. Ex.P1 is the complaint and Ex.P10 is the FIR. She forwarded documents to the Court and took up the case for investigation. She has vividly spoken about the investigation done. (f) When the above incriminating materials were put to the accused, he denied the same as false. On his side, the accused himself was examined as DW1 and Ex.D1 - a written undertaking given by PW2 on 15.01.2006 has been marked. In his evidence, the accused has stated that PW1 used to visit his house frequently. The accused was working as a Secondary Grade Teacher. PW2 promised him to get transfer for him to Virudhunagar District. For that, he demanded Rs. 60,000/-. Since PW2 was working as Office Assistant, in the Office of the District Collector, Virudhunagar District, he gave Rs. 60,000/-. But, PW2 could not secure him transfer. When the accused demanded the money back, he sold the vehicle to him for a sum of Rs. 40,000/-. The balance amount was not paid. The registration certificate was not transferred in the name of the accused. When the accused demanded all the above, there arose misunderstanding between them. It is because of the said misunderstanding, according to him, the false case has been foisted. (g) Having considered all the above, the trial Court acquitted the accused. Challenging the same, the State is before this Court with this appeal. 3. I have heard the learned Additional Public Prosecutor appearing for the State and the learned counsel appearing for the respondent. I have also perused the records carefully. 4. The learned Additional Public Prosecutor would submit that the trial Court had given much weightage for the minor inconsistencies in the case of the prosecution so as to acquit the accused. According to him, the evidence of PW1 is very cogent and there are no reasons to reject her evidence. He would further submit that on certain aspects, the evidence of PW1 is corroborated by PWs.2, 3 and 5, and the medical evidence also duly corroborates. Thus, according to the learned Additional Public Prosecutor, the lower Court ought to have convicted the accused. 5. The learned counsel appearing for the respondent would stoutly resist this appeal. He would further submit that on certain aspects, the evidence of PW1 is corroborated by PWs.2, 3 and 5, and the medical evidence also duly corroborates. Thus, according to the learned Additional Public Prosecutor, the lower Court ought to have convicted the accused. 5. The learned counsel appearing for the respondent would stoutly resist this appeal. According to him, PW1 has categorically admitted that she had sexual intercourse with the accused only out of free consent. He would further submit that at the time of occurrence, she was aged 18 years of age. He would further point out that PW1 has admitted during the cross examination that the accused never gave any promise for marriage before the occurrence. Thus, according to the learned counsel for the respondent, the acquittal of the accused does not require any interference at the hands of this Court. 6. I have considered the above submissions. 7. PW14 - Dr. Vijayakumar has scientifically examined PW1 on 22.06.2006 and he has given opinion that PW1 had completed 16 years of age but not completed 18 years of age. There is no other documentary evidence produced by the prosecution, in respect of the age of the victim. The prosecution itself relies on evidence of PW14, In order to prove the age of PW1. PW1 herself has stated at the time of her evidence that she was 18 years old. As per Section 375 of IPC, which stood prior to the amendment made as per the Criminal Law (Amendment) Act 2013, having sexual intercourse with a girl with her consent, if she is not under 16 years of age, is not rape. In this case, at the time of occurrence, even according to the prosecution, PW1 had completed 16 years of age. Thus, she was legally competent to give consent for sexual intercourse. 8. Now, the next question is whether on 15.01.2006 the accused had sexual intercourse with the consent of PW1 or not. PW1 has categorically stated that on 15.01.2006, the accused had sexual intercourse with her. There is no reason to reject this part of the evidence of PW1. After the occurrence, when she was taken to the Doctor, she told the Doctor that she was closely moving with the accused for four years prior to the occurrence and she had sexual intercourse with her for one year. There is no reason to reject this part of the evidence of PW1. After the occurrence, when she was taken to the Doctor, she told the Doctor that she was closely moving with the accused for four years prior to the occurrence and she had sexual intercourse with her for one year. This statement of PW1 made to the Doctor has been duly used to contradict her, when she was under cross examination. There is no explanation for the same at all. From the fact that the vagina of PW1 allowed two fingers to move freely into it, the Doctor has given opinion that PW1 would have enjoyed sex with a man frequently. This evidence of the Doctor also duly corroborates the version of PW1 that she had sexual intercourse with the accused for about one year. 9. On 15.01.2006, according to PW1, the accused never gave any promise to marry prior to the occurrence. At the time of occurrence, PWs.2 & 3 were not at home and other children were also not there. The accused and PW1 alone was there. If it is true that PW1 was not a consenting party, she would have raised alarm, when the accused attempted to have sexual intercourse with her. There are lot of houses in that area, because PW1 was residing in a Housing Board Staff Quarters. PW1 has also admitted that she did not raise any alarm at all. Apart from that, after the occurrence on 15.01.2006, on 31.01.2006 the accused again came and stayed with PW1 at her house for one day and then only, he left. PW5 - the milk vendor has stated that he had seen the accused and PW1 together in the house alone on few occasions. When he enquired PW1, she told that she was going to marry the accused. These evidences would clearly go to show that PW1 had given full consent for the accused to have sexual intercourse. If she was not a consenting party for sexual intercourse on 15.01.2006, she would have told about the same to her parents, or at least on 31.01.2006, when the accused came to her house, she would not have allowed him to stay with her. If she was not a consenting party for sexual intercourse on 15.01.2006, she would have told about the same to her parents, or at least on 31.01.2006, when the accused came to her house, she would not have allowed him to stay with her. All these facts would go to show, even assuming that the accused had sexual intercourse with PW1 on 15.01.2006, it was only with full consent of PW1 and therefore, the offence under Section 376 IPC would not be made out. 10. So far as the offence of cheating is concerned, PW1 has during the cross examination admitted that the accused did not give any promise to marry her at all prior to the occurrence. Thus, in my considered view, the lower Court was right in acquitting the accused holding that the prosecution has failed to prove the charges against the accused beyond reasonable doubts. I do not find any merit at all in this appeal. 11. In the result, this Criminal Appeal fails and accordingly the same is dismissed.