Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3431 (MAD)

Manimaran v. State Rep. by Inspector of Police

2018-10-01

N.SATHISH KUMAR

body2018
JUDGMENT 1. The sole accused has come up with this Criminal Appeal challenging his conviction and sentence imposed by the learned Sessions Judge (Mahila Court), Tiruchirappalli, in S.C. No. 148 of 2007 dated 30.07.2008. 2. The trial Court framed charges against the accused, under Sections 376 and 417 I.P.C. 3. The trial Court convicted the accused and sentenced him, as detailed below:- Accused Conviction Recorded Sentence Imposed Sole Accused U/s. 376 IPC To undergo rigorous imprisonment for ten (10) years and to pay a fine of Rs. 5000/- in default to undergo rigorous imprisonment for one (1) year. U/s. 417 IPC To undergo rigorous imprisonment for one (1) year and to pay a fine of Rs. 2000/- in default to undergo rigorous imprisonment for three (3) months. 4. The brief facts of the prosecution are as follows: 4.1. PW-1 is the victim. The accused is already married, however, deserted by his wife. Thereafter, PW-2 and PW-3, who are the parents of PW-1 agreed to give PW-1 in marriage to the accused. PWs. 4 and 5 are the neighbours. PWs. 6 and 7 who are the Panchayathars also have knowledge about the arrangements of PW-1's parents to give PW-1 in marriage to the accused. PWs. 8 and 9 are also aware of the above facts. After such arrangement, the accused used to come to PW-1's house and take PW-1 in his two wheeler and he had sexual intercourse with her many times. He also used to take her to Thirupur. In view of such relation, PW-1 got conceived and when she was three months pregnant, the accused refused to marry her and demanded 10 sovereigns of gold and ten thousand rupees as dowry. As the accused refused to marry her she gave a complaint in Ex.P.1 on 29.01.2007. 4.2. It is also the case of PW-1 that after the said complaint, she got aborted. PW-12 the medical officer treated PW-1 and stated that while examining PW-1, she admitted that she was residing with a known person and as a result, she became pregnant by three months. In respect of which, PW-12 issued Ex.P.7. PW-13 received the complaint from PW-1 and registered crime in Crime No. 2 of 2007 under Sections 376, 506(i) r/w.109 I.P.C. under Ex.P.8 [First Information Report]. PW-11, the medical officer, has issued Ex.P.3 [Age Certificate] stating that PW-1 must be below 17 years and above 14 years. In respect of which, PW-12 issued Ex.P.7. PW-13 received the complaint from PW-1 and registered crime in Crime No. 2 of 2007 under Sections 376, 506(i) r/w.109 I.P.C. under Ex.P.8 [First Information Report]. PW-11, the medical officer, has issued Ex.P.3 [Age Certificate] stating that PW-1 must be below 17 years and above 14 years. PW-14, Investigation Officer arrested the accused on 29.01.2007 and after examining the witnesses finally laid the final report against the accused under Sections 376 and 506(i) I.P.C. 4.3. Based on the above materials, the trial Court framed charges under Sections 376 and 417 I.P.C. In order to prove the case, on the side of the prosecution, as many as 14 witnesses were examined as PW-1 to PW-14, Exs.P.1 to P.8 were marked. 4.4. The trial Court, after considering the oral and documentary evidence, has found the appellant guilty and accordingly, convicted and sentenced him, as stated supra. Aggrieved over the said conviction and sentence, the appellant/Sole Accused has come up with this appeal. 5. Learned Counsel appearing for the appellant would contend that the prosecution has not proved the age of PW-1. PW-1 herself in her evidence has stated that she has completed 18 years of age. Further evidence indicate that it is only a consented sex and there is no cheating or rape as per law. In fact, PW-1 agreed to marry the accused with the consent of her parents and she was closely moving with the accused. That being the position, the alleged charge under Section 376 I.P.C. has not been established. Hence, prays for acquittal of the accused. 6. The learned Additional Public Prosecutor appearing for the respondent would contend that PW-1 is the victim. Merely because she admitted in her evidence that her age is 18 years, the same will not disprove the evidence of the medical officer. Hence, he prays for dismissal of the appeal. 7. In the light of the above submissions, now, it has to be analysed whether the prosecution has proved the guilt of the accused beyond all reasonable doubts? 8. PW-1 victim has stated that in her evidence that since the accused was living alone deserted by her wife, there was a proposal to give her in marriage to the accused by her parents. PWs. 2 and 3 also admitted the above fact. Similarly, PWs. 8. PW-1 victim has stated that in her evidence that since the accused was living alone deserted by her wife, there was a proposal to give her in marriage to the accused by her parents. PWs. 2 and 3 also admitted the above fact. Similarly, PWs. 4 & 5 and 6 & 7, neighbours and village Panchayathars also admitted the fact that there was an arrangement to give PW-1 in marriage to the accused. Evidence of PW-1 further indicates that after such agreement, she was frequently moving with the accused to various places and had sexual intercourse. Thereafter, she became pregnant and the same was also aborted when she fell down. 9. The entire evidence of PW-1 clearly indicates that she was a consenting party with the accused and even the parents of PW-1 are aware of the above facts. The complaint in Ex.P.1, came to be filed only thereafter when the accused refused to marry PW-1. It is the case of the prosecution that since PW-1 was a minor, below 16 years of age at the relevant point of time, the offence is made out. PW-1 in her evidence itself has clearly stated that she has studied up to 6th standard. The prosecution has not made any attempt to file school certificate to prove the age of the victim. 10. Further PW-11, the medical officer, who issued Ex.P.3, stating that the victim PW-1 is below 17 years has not conducted any test to substantiate the same. Only based on the physical appearance he came to such conclusion. 11. It is to be noted that physical appearance of a women cannot be a basis for fixing her age. The physical appearance may be dependent on various features such a good nutrition, atmosphere etc. Merely on the basis of physical appearance one's age cannot be determined. Admittedly, no test has been done by the medical officer for determining the age of PW-1. PW-1 herself in her cross examination has submitted that she is aged about 18 years. That being the position, her entire evidence clearly indicates that she was a consented party to the sexual activities. That being the position, the law stood at the relevant point of time was that the consented sex of girl above 16 years is not an offence. Only after the amendment in the year 2013, age of the victim minor is made as 18 years. That being the position, the law stood at the relevant point of time was that the consented sex of girl above 16 years is not an offence. Only after the amendment in the year 2013, age of the victim minor is made as 18 years. 12. On careful perusal of the entire evidence of PW-1, this Court finds that she is a consenting party and she is also aged about 18 years. The prosecution has also not established the age of PW-1 by producing the school certificate etc,. In the absence of the same, evidence of PW-1 that she is more than 18 years cannot be brushed aside. The fact that she lived with the accused as husband and wife in various places also indicates that she is well matured and she was more than 16 years, at the relevant point of time. Hence the offence under Section 376 cannot be pressed into service. Similarly, there is no evidence to show that the accused cheated PW-1. In the absence of any evidence of deception, the charge under Section 417 I.P.C. also cannot be questioned. Hence, the finding of the trial Court convicting the accused under Sections 376 and 417 I.P.C. is not according to law. 13. Accordingly, the Criminal Appeal is allowed. The conviction and sentence imposed on the appellant/Sole Accused by the learned Sessions Judge (Mahila Court), Tiruchirappalli, by Judgment dated 30.07.2008, made in S.C. No. 148 of 2007, is hereby, set aside and the appellant/Sole Accused is acquitted of all the charges. Bail bond, if any, executed by the appellant/Sole Accused and the sureties shall stand terminated. Fine amount, if any, paid by the appellant/Sole Accused shall be refunded to him.