IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated :16.04.2008 Coram THE HONOURABLE MR. JUSTICE T.SUDANTHIRAM CRIMINAL REVISION CASE NO.354 OF 2006 M. Munusamy ... Petitioner -Vs.- The State represented by Sub Inspector of Police, Kalavai Police Station, Kalavai, Arcot Taluk, Vellore District. ...Respondent Cr.No.159/97 Revision against the judgment dated 15.03.2005 made in C.C.No.468 of 2003 on the file of the District Munsif cum Judicial Magistrate Court, Arcot and confirmed in Crl.A.No.58 of 2005 dated 01.08.2005 on the file of the Principal Sessions Judge at Vellore, Vellore District. For Petitioner : Mr. M.V.Muralidaran For Respondent: Mr. J.C.Durairaj, Government Advocate (Crl.Side). ------- J U D G M E N T The Revision Petitioner, who is the accused in C.C.No.468 of 2003 on the file of the District Munsif cum Judicial Magistrate Court, Arcot, was convicted for offence under section 417 C.P.C and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.5,000/-, in default to undergo three months simple imprisonment and the said conviction and sentence were confirmed by the learned Principal Sessions Judge, Vellore in Criminal Appeal No.58 of 2005. Aggrieved by the said conviction and sentence the petitioner has preferred this Revision Case. 2. The case of the prosecution is that PW.3, who is the daughter of PW.1 and PW.2, got married to one Ganesan about three years prior to the date of giving evidence. As she was ill-treated she obtained a customary divorce and came to her parent's house at https://hcservices.ecourts.gov.in/hcservices/ Kalavai Koot Road. While she was going to the field, she got acquaintance with the accused. The accused promised to marry her and he had an affair with her. She also consented since the accused promised to marry her. She became pregnant and she informed to her mother. Panchayat was also held in which the accused denied his intimacy with PW.3. PW.1, the father of PW.3 gave a complaint Ex.P1 to the police. PW.7, Inspector of Police received a complaint on 25.07.1997 at 8.00 p.m and registered a case in Crime No.159 of 1997 for the offences under sections 417 and 493 IPC. Ex.P3 is the First Information Report. On 06.08.1997 at 10.30 a.m the accused was arrested and remanded to custody. The accused who was on bail absconding till 14.12.1998. PW.8, the Inspector of Police took up further investigation from 16.01.1999. On 19.06.2001, the accused, PW.3 and her child were produced before PW.6 for DNA Test. PW.6 submitted his report Ex.P2 on 26.06.2001 concluding that the accused is the biological father of the child. PW.9, Inspector of Police who took up further investigation in this case, after completing the investigation filed the final report for offence under section 417 IPC. 3. After considering the evidence, both the Courts below have convicted the accused. 4. The learned counsel for the petitioner submitted that PW.3, the victim is a grown up married lady and she knows the consequences of relationship between a man and woman. In the complaint Ex.P1, given by PW.1, the father of PW.3, it was not stated that PW.3 was already a married lady and she had obtained customary divorce from her husband. While giving complaint deliberately this fact was suppressed. The learned counsel for the petitioner further submitted that admittedly now, she was already a married lady before having acquaintance with the accused. Though it is now claimed that she was promised to marry by the accused, absolutely no documentary or supporting evidence has been let in by the prosecution that PW.3 had obtained divorce from her husband. In the absence of proof of divorce, the version of PW.3 that the accused promised to marry her should not have been accepted by the Courts. The consent of PW.3 was not on the basis of the promise said to have been made by the accused. Learned counsel for the petitioner further submitted that the ingredients of the offence under section 417 IPC are not made out and also relied on the decision of the Hon'ble Supreme Court reported in "2003(4) Supreme Court Cases in Uday ..vs.. State of Karnataka". The learned counsel for the petitioner further submitted that there was a delay of nine months in giving complaint to the police. 5. The Learned Government Advocate submitted that subsequent to the complaint given by PW.1, the victim girl PW.3 had given birth to a child and PW.6 also given a certificate Ex.P2 stating that the accused is the biological father of the child. As such the affair between https://hcservices.ecourts.gov.in/hcservices/ the accused and PW.3 is proved and PW.3 had accepted and she had consented only on the basis of the promise made by the accused. Though, PW.3 was married, she obtained divorce and she had returned to the parental home and she was living separately. Only under such circumstances, the accused had approached her and made a promise and she had consented. The refusal to marry PW.3 by the accused, amounts to an offence of cheating. 6. This Court considered the submissions made by both parties and perused the evidence of witnesses and other records. 7. It is stated in the complaint Ex.P1 given by PW.1, the father of the victim girl PW.3, that the accused was promising to marry PW.3 had affair with her; but though in the Panchayat he accepted to marry, he refused to marry her. At the same time, it is specifically mentioned in the complaint that PW.3 was an "unmarried lady". Now, in the chief examination, it is stated by PW.1 and PW.3 that customary divorce has been obtained by PW.3. But PW.2, the mother had only stated that after the marriage, she had returned to the parental home due to some family disputes. PW.2 had not spoken about the divorce. According to PW.1, marriage between PW.3 and her husband Ganesan took place about five or six years back and according to PW.2, it was prior to ten years and according to PW.3, it was prior to three years. PW.4 and PW.5 are the villagers. They also stated that PW.3 was married to another person, but she had returned to her parental house. But they had not stated that there had been a divorce. Except the oral version of PW.1 and PW.3 that the divorce had taken place between PW.3 and her husband, there is no clinching evidence to support that version. It is doubtful whether the marriage between PW.3 and her husband Ganesan is subsisting or or not. 8. Though PW.3 says that she got acquaintance with the accused and the accused promised to marry her, she had not made it clear whether the accused knows about her earlier marriage and about her divorce and she also not stated anything about whether she informed the accused about the earlier marriage and divorce. Anyhow according to PW.3, being already a married lady and her age being 29 at the time of giving evidence and as such being aged 23 years at the time of occurrence, she must be knowing the consequences of the affair with the accused. She admits that she had been a consenting party. But only the fact in issue is that whether she had consented because he accepted to marry. She had not revealed her affair with the accused to anyone till she became pregnant by eight months. In cross examination, she says that while she was pregnant by eight months and while she was lying with the accused, her senior paternal uncle had seen them. It appears that only after she became pregnant by eight months, the others have come to know about the occurrence. Under such circumstances, it becomes doubtful whether she had affair with the accused only on the promise made by the accused or not. This https://hcservices.ecourts.gov.in/hcservices/ Court is unable to conclude in favour of the prosecution. At every stage, the benefit should be in favour of the accused. 9. It is observed in the Judgment reported in "2003(4) Supreme Court Cases in Uday ..vs.. State of Karnataka" at paragraph 25 as follows: "25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. These was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that that appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o' clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances, the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where https://hcservices.ecourts.gov.in/hcservices/ they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances, it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent." Though, it is established in this case, there was an intimacy between the accused and PW.3 and subsequently, PW.3 has also given birth to a child and the natural biological relationship of the accused as father also being established; but at the same time, it cannot be said that the prosecution established the fact that the accused had affair with PW.3 only after making the promise that he would marry her. Hence, the benefit of doubt is given to the accused. Though there is no evidence to establish beyond reasonable doubt that the petitioner made a false promise to marry, accused is prima-facie accountable for damages under civil law. 10. With the above observation, the conviction and sentence imposed on the petitioner is set aside and the Revision Petition is allowed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mra https://hcservices.ecourts.gov.in/hcservices/ To 1. The District Munsif cum Judicial Magistrate Court, Arcot 2. The Principal Sessions Judge at Vellore, Vellore District. 3. Sub Inspector of Police, Kalavai Police Station, Kalavai, Arcot Taluk, Vellore District. 4. The Public Prosecutor,High Court,Madras +1cc to Mr.M.V.Muralidaran, Advocate Sr 21448 JSK (CO) km/13.5. Crl.R.C.No.354 OF 2006 https://hcservices.ecourts.gov.in/hcservices/