Salman v. The Inspector of Police

JUDGMENT This Criminal Appeal has been filed by the sole accused, challenging the conviction and sentence imposed upon him vide judgment dated

28.10.2022 in S.C.No.14 of 2014 on the file of the learned Sessions Judge, Mahila Court, Perambalur District. 2(a). It is the case of the prosecution that the appellant and the de-facto complainant had a love affair; that on the promise of marriage, the appellant had sexual intercourse with the de-facto complainant between

20.02.2013 and 02.02.2014 on various dates; that the appellant made the de-facto complainant believe that she was married to him by tying a Thali and had sexual intercourse, as a result of which the de-facto complainant became pregnant and thereafter, when the de-facto complainant requested the appellant to marry her, he refused to do so and abused her in filthy language and threatened her of dire consequences.

(b). The de-facto complainant had lodged a complaint in Ex.P1 on

27.03.2014, which was registered in Crime No. 5 of 2014 dated 27.03.2014, on the file of the respondent for the offences under Sections 376, 417, 294 and 506(1) of the IPC. The FIR was marked as Ex.P7.

(c). P.W.10/the Sub Inspector of Police registered the FIR and P.W.13/the Inspector of Police conducted the investigation, and after examination of witnesses, filed the Final Report for the offences under Sections 294(b), 376, 417 and 506 (1) of the IPC before the Jurisdictional Magistrate.

(d). On the appearance of the appellant, the provisions of Section 207 Cr.P.C. were complied with, and the case was committed to the Court of Session in S.C. No. 14 of 2014 and was made over to the learned Sessions Judge, Mahila Court, Perambalur District, for trial. The trial Court framed charges u/s. 376, 417, 294(b) and 506(1) of the IPC against the appellant, and when questioned, the appellant pleaded 'not guilty'.

(e). To prove the case, the prosecution examined 13 witnesses as P.W.1 to P.W.13 and marked 12 exhibits as Exs.P1 to P12. When the appellant was questioned u/s.313 Cr.P.C. on the incriminating circumstances appearing against him, he denied the same. On the side of the defence, two witnesses were examined as D.W.1 and D.W.2 and one document was marked as Ex.D1.

(f). On appreciation of oral and documentary evidence, the Trial Court found that the appellant/accused was not guilty of the offences under Sections 417, 294(b) and 506(1) of the IPC and found guilty of the offence under Section 376(2)(n) of the IPC and sentenced him to undergo rigorous imprisonment for a period of ten years and also to pay a fine of Rs.2,00,000/- (Rupees Two Lakhs Only) in default, to undergo simple imprisonment for a further period of two years. Hence, the accused/appellant has preferred the appeal challenging the said conviction and sentence.

¶3Heard Mr. R. John Sathiyan, learned Senior Counsel, appearing for the appellant/accused, and Dr.C.E. Pratap, the learned Government Advocate (Crl.Side) appearing for the respondent/State.

¶4The learned Senior Counsel for the appellant/accused would submit that the allegation as regards deception and false promise of marriage has been invented for the purpose of prosecuting the appellant; that the evidence discloses that the relationship between the appellant and the de-facto complainant was consensual; that there is evidence to show that the appellant had married the de-facto complainant and were living together as husband and wife; and that it was the de-facto complainant who deserted the appellant and thereafter filed this false case.

(b). The learned Senior Counsel also pointed out the evidence of the de-facto complainant/victim and the evidence of the Investigating Officer, to show that the deposition of the victim in Court was an afterthought and she had not stated any of those facts during the investigation and also pointed out the evidence of D.W.1 to show that the appellant married the de-facto complainant and hence, neither deception nor rape has been established and therefore prayed for acquittal.

¶5The learned Government Advocate (Crl. Side) for the respondent/complainant, per contra, would submit that pursuant to their relationship, the victim became pregnant, a child was born; that a DNA analysis was conducted to ascertain the paternity of the said child and the DNA results revealed that the appellant is the biological father of the child; and that the evidence of the victim is cogent and convincing and therefore, there is no infirmity in the Judgment of the Trial Court; hence, he prayed for dismissal of the appeal.

¶6This Court has carefully considered the rival submissions and perused the materials on record.

¶7As stated earlier, the prosecution had examined 13 witnesses. P.W.1 is the victim/de-facto complainant. P.W.2 is the elder sister of the victim/P.W.1. P.W.3 is the Doctor, who had examined the accused and had certified that the age of the accused was around 25 years. P.W.4 is a Doctor, who had examined the accused and conducted the potency test and had certified that the accused was not impotent. P.W.5 is the Head Constable, who accompanied the accused for medical examination. P.W.6 is the Constable, who accompanied the victim girl for medical examination. P.W.7 and P.W.8 are the Observation Mahazar witnesses. P.W.9 is the Doctor, who had examined the victim and had issued Ex.P6, a certificate confirming the pregnancy of the victim. P.W.10 is the Sub Inspector of Police, who registered the FIR. P.W.11 is the Forensic Expert Expert, who had issued the DNA report [Ex.P8]. P.W.12 is the Constable, who assisted the Investigating Officer. P.W.13 is the Investigating Officer, who had filed the Final Report.

¶8The fact that the appellant and the victim/P.W.1 had sexual relationship is not in dispute. The evidence of the Doctor confirms the said fact. However, the question is whether the appellant had deceived the victim and compelled her to have sexual intercourse. The above description of the witnesses would show that the prosecution relies upon the evidence of P.W.1 and P.W.2 for this purpose. P.W.1 is the victim and P.W.2 is the elder sister of P.W.1. The deposition of P.W.1 is that the appellant/accused had expressed his love for P.W.1; that he also expressed his desire to have sexual intercourse for which, P.W.1 refused and thereafter, the appellant took her to a godown, which is attached to a bakery run by his parents; that on 20.02.2013, had forceful sexual intercourse; that the victim could not prevent the appellant; that on 02.04.2013, the appellant assaulted P.W.1 and took her to a temple, tied Thali and thereafter, continued to have sexual intercourse; that the accused had captured the act of sexual intercourse in a camera and thereafter threatened her of dire consequences and exposing her in Youtube, if she did not agree for sexual intercourse; and that thereafter, she became pregnant and she informed her sister about the same and when she and her sister went to meet the appellant in his house, the appellant abused both of them in filthy language and thereafter, the victim/P.W.1 had lodged a complaint.

¶9However, the cross-examination of the Investigating Officer reveals that none of the material facts stated by her in her deposition had been stated during the investigation. The relevant portion of the evidence of theoInvestigatingoOfficer/P.W.13oreadsoasofollows:o .... "m/rh/1 vd;Dila g[yd; tprhuizapd; nghJ ehd; tpLKiwapy; bguk;gYhh; g[jpa ngUe;J epiyak; mUnf css; Ehyfj;jpw;F te;jjhft[k;. vjphpia m';F ghh;j;jjhft[k;. brhy;ytpy;iy/ nkYk; 2 ehl;fs; vjphpia ghh;j;jjhft[k;. mth; vd;Dld; el;ghf ,Uf;Fk;go nfl;ljhft[k; mjw;F jhd; kWj;Jtpl;ljhft[k; m/rh/1 vd; g[yd; tprhuizapy; bjhptpf;ftpy;iy/" .... "mjdg; pd; 1 thuk; fHpjJ; 20/02/2013. md;W vjphp vd;id v!;/vd;/ ngf;fphpapy; Fnlhdpy; cs;s rpwpa miwf;F ngRtjw;F th vd;W miHj;jjhf m/rh/1 vd; g[yd; tprhuizapy; bjhptpf;ftpy;iy/ me;j miwapy; fz;fhzpg;g[ nfkuh bghUj;jg;gl;L ,Ue;jJ vd;W m/rh/1 vd; g[yd; tprhuizapy; bjhptpf;ftpy;iy/ mjw;F vjphp jd;id nfl;fhky; tYf;fl;lhakhf mth; ko kPJ itj;J bfhz;L jd; Milfis mtnu fHw;wp vd;Dld; tYfl;lhakhf clYwt[ bfhz;lhh; vd;W m/rh/1 vd; gy[ d; tprhuizapy; bjhptpf;ftpy;iy/ me;j miwapy; bjh';fp bfhz;oUe;j xU kpd;rhu xaiu itj;J bfhz;L jd;id clYwt[f;F tw;g[Wj;jpajhft[k; jd;dhy; jpkpunt Koatpy;iy vd;W m/rh/1 vd; g[yd; tprhuizapy; bjhptpf;ftpy;iy/ kWgoa[k; 02/04/2013 vjphp jd;id mojJ; tpLjpapy; ,Ue;J miHj;J te;J kiyf;nfhl;ilapy; cs;s nfhtpypy; itj;J jd;id mojJ; jd; fGj;jpy; xU k";rs; fapw;iw fl;odhh; vd;W m/rh/1 vd; g[yd; tprhuizapy; bjhptpf;ftpy;iy/ 20/02/2013 vjphp jdd; plk; tYfl;lhakhf clYwt[ itj;J bfhz;l gjpt[fs; m';F cs;s nfkuhtpy; gjpthfp css; J nkYk; vjphp mtUila bry;nghdpy; me;j clYwt[ fhl;rp cs;sJ vd;W brhy;yp me;j fhl;rpfis brhy;nghdpy; jd;dplk; fhl;oajhft[k;. mij jhd; ghh;j;jjhft[k; m/rh/1 vd; g[yd; tprhuizapy; bjhptpf;ftpy;iy/ vjphp tYfl;lhakhf fUfiyg;g[ khj;jpiu th';fp jd;Dila thapy; nghl;Ltpl;ljhft[k; mjdhy; jdf;F euk;g[ jsh;r;rp Vw;gl;ljhft[k; m/rh/1 vd; g[yd; tprhuizapy; bjhptpf;ftpy;iy/ jd; tPl;oYk;. tpLjpapYk; jd;Dila clk;g[ bts;isahfptpll; J vd;W nfl;ljht[k; m/rh/1 vd; g[yd; tprhuizapy; bjhptpf;ftpy;iy/ mjd;gpd; 4 tJ Kiwahf jhd; fh;g;gkile;jhft[k;. mjdhy; jd; clk;gpy; khw;w';fs; bjhptjhft[k; mjw;F vd;d fhuzk; vd;Wk;. vd; mf;fh. vd; mk;kh Chpy; cs;sth;fs; kw;Wk; jd; tFg;g[ njhHpfs; nfl;ljht[k; m/rh/1 vd; gy[ d; tprhuizapy; bjhptpf;ftpy;iy/" .... "eP ,jw;F rkk; jpf;fhtpl;lhy; ehd; jw;bfhiy bra;J bfhs;ntd; vd;W kpul;o tYfl;lhakhf clYwt[ itj;J bfhz;ljhf Twpdhh;/ ehd; rj;jk; nghl;L fjtpd; jhH;ghid jpwf;f Xondd;/ mg;nghJ vjphp vd; thia vd; rhy; Jgg; l;lthy; fl;o tpl;L btwpj;jdkhf vdD; ld; clYwt[ bfhz;lhh; vd;W vd; tprhuizapy; m/rh/1 brhy;ytpy;iy/" .... "vd; tyJ Kd;ifapy; r{L itj;jhh;/ mjdhy; vd; ifapy; fUg;ghf r{L fhak; Vw;gl;lJ vd;W m/rh/1 vd; g[yd; tprhuizapy; brhy;ytpy;iy/ mjdg; pd; 4 tJ Kiwahf ehd; fh;g;gk; mile;Jtpl;nld; vd; clk;gpy; khw;w';fs; bjhptjhf vd; mf;fh kw;Wk; tFg;g[ njhHpfs;. mkk; h kw;Wk; Chpy; css; thf; s ; nfl;lhhf; s/;" .... ve;bje;j fhyf;fl;lj;jpy; m/rh/1 fh;g;gk; Mdhh;. mghrd; bra;jhh; vd;W m/rh/1 vdJ tprhuizapy; njjp Fwpg;gpltpy;iy/ 3 Kiw fh;g;gk; Mfp mghrd; Mdjhf kl;Lk; brhy;ypa[s;shh;/ rk;gt ,lj;jpypUe;J tPonah. nfkuh vjphpaplk; ,Ue;J bry;nghd; Mfpatw;iw ehd; ifg;gw;wtpy;iy/ m/rh/1 g[fhh; bfhLj;j fhty; epiyak; te;j tptuk; vdf;F bjhpa[k;. vj;jid ngh; mtUld; te;jhh;fs; vd;W vdf;F bjhpahJ/ vd;dplk; gf[ hh; vJtk[ ; mspf;ftpyi; y/" .... "m/rh/2 vdJ tprhuizapy; vjphp vd; j';ifa[ld; clYwt[ bfhz;l rhl;rpfis tPonah nfkuhtpYk;. jd;Dila brhy;ypYk; gjpt[ bra;J ,Ug;gjhft[k;. bjhlh;e;J clYwt[ bfhs;stpy;iy vd;why;. mej; fhl;rpfis a{ L:gpy; nghl;L tpLtjhf jd; j';ifia kpul;oajhf brhyy; tpyi; y/" The o above o deposition o of o the o Investigating o Officer/P.W.13 o wouldo demonstrate that the victim had stated several facts for the first time in Court and that it is an afterthought. P.W.2 is a hearsay witness and the above-extracted portion would also reveal the improvements in her deposition in Court.

¶10Be that as it may. The learned counsel for the appellant/accused, in her cross-examination of the victim/P.W.1, had asked the victim as to whether the appellant had married the victim in a Mosque; the victim would state that a marriage in fact took place, but it was under compulsion. This evidence of the victim would show that the victim's evidence is self-contradictory. If the appellant had deceived the victim and had sexual intercourse on the false promise of marriage, there was no reason for him to compel the victim to get married to him.

¶11That apart, D.W.1/District Vice President of the Tamil Nadu Thowheed Jamaath at Perambalur, would state that the victim volunteered to get married with the appellant and on 22.06.2014, the marriage was solemnized in the presence of Jamathars and that the appellant had paid Rs.10,000/- (Rupees Ten Thousand only) as Mahr to the victim.

¶12D.W.2 is the person who had arranged a rental house for the appellant and the victim to stay after their marriage and he would also state that they had lived in that house for two months and thereafter, the victim/P.W.1 left the house stating that her sister called her. The prosecution has not elicited anything in the cross-examination to disbelieve the evidence of D.W.1 and D.W.2. Further, in the cross-examination, D.W.1 had confirmed the presence of the mother and sister of the victim at the time of marriage. The evidence of D.W.1 and D.W.2 and the admission made by P.W.1 in her cross-examination, therefore, confirm that the marriage in fact took place and hence, the allegation of deception cannot be accepted and the trial Court rightly acquitted the appellant for the offence of cheating. Further, P.W.9/Doctor, who had examined the victim had stated in the cross-examination that when the victim came for examination, she had not stated that she was subjected to forcible sexual intercourse; and that she had only stated that she had intercourse with the appellant.

¶13From the above discussion of the evidence, it would be clear that the offence under Section 376 of the IPC has been made out. The evidence only discloses a consensual relationship and therefore, the appellant is not guilty of the offence under 376 of the IPC. The trial Court had acquitted the appellant of all other offences by its Judgement dated 28.10.2022. In such circumstances, the appeal deserves to be allowed.

¶14In the result, this Criminal Appeal is allowed, and the appellant is acquitted of the offence u/s. 376(n)(2) of the Indian Penal Code. The conviction and sentence passed in S.C.No.14/2014 on the file of the learned Session Judge, Mahila Court, Perambalur District, vide Judgment dated

28.10.2022, are set aside. The fine amount, if any, paid by the appellant shall be refunded. Bail bond, if any, executed shall stand discharged.

19.11.2024 Index: yes/no dk Copy to:-

1.The Sessions Judge Mahila Court, Perambalur District.

2.The Inspector of Police, All Women Police Station, Perambalur, Perambalur District.

3.The Public Prosecutor High Court of Madras, Chennai – 600 104. SUNDER MOHAN,J. dk

19.11.2024

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 19.11.2024 CORAM : THE HON'BLE MR. JUSTICE SUNDER MOHAN Salman ...Appellant/Sole Accused Vs. State Represented by, The Inspector of Police, All Women Police Station, Perambalur, Perambalur District. (Crime No.5/2014) ...Respondent/Complainant Prayer : Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure, 1973, against the Judgment dated 28.10.2022 in Sessions Case No.14 of 2014, on the file of the learned Sessions Judge, Mahila Court, Perambalur District. For Appellant : Mr.R.John Sathiyan Senior Counsel for Mr.Swami Subramanian For Respondent : Dr.C.E.Pratap Government Advocate (Crl.Side)