Bail Slip The Appellant / Accused viz.Jagan @ Jaganathan, S/o.Balakrishna Chettiar was released on bail as per order of this Court dated 28.12.2004 and made in Crl.M.P.No.10968 of 2004 in Crl.A.No.1119 of 2004 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :14.02.2011 CORAM THE HONOURABLE MR. JUSTICE A.ARUMUGHASWAMY Crl. Appeal No.1119 of 2004 Jagan @ Jagannathan ... Appellant /Accused -Versus- The State, Rep. By The Inspector of Police, Uthiramerur Police Station, Kancheepuram District. [Crime No.264 of 2003] ... Respondent/Complainant Memorandum of Grounds of Criminal Appeal under Section 374(2) of the Criminal Procedure Code against the judgement of conviction and sentence dated 09.09.2004 made in S.C.No.74 of 2004 on the file of the learned Additional Sessions Judge, Fast Track Court No.II, Kancheepuram. For Appellants : Mr.Ashokumar for Mr.R.Rajasekaran For Respondent : Mr.N.Kumanan, Government Advocate [Criminal Side] JUDGEMENT Challenging the conviction and sentence imposed in S.C.No.74 of 2004 by the learned Additional Sessions Judge, Fast Track Court No.II, Kancheepuram, the sole accused therein has come forward with this criminal appeal. https://hcservices.ecourts.gov.in/hcservices/ 2. The Appellant / sole Accused before the trial Court stands convicted by the learned Additional Sessions Judge, Fast Track Court No.II, Kancheepuram for the offences under Sections 376 and 417 of IPC and sentenced to undergo R.I. for 7 years and to pay a fine of Rs.2000/- in default to undergo R.I. for 6 months for the offence under Section 376 of IPC; and to undergo R.I. for 1 year for the offence under Section 417 of IPC. Both the sentences were ordered to run concurrently. 3. The case of the prosecution in brief is as follows:- P.W.1, the victim is a resident of Nasarethpet. She was living along with her parents P.W.2, father and P.W.3, mother. She studied up to X Standard. Her date of birth according to School Certificate is 20.05.1986. On 23.04.2003 P.W.1 came down to Perunagar Village along with her mother to her relative one Nataraja Chettiar's house for vacation. Thereafter, they visited the house of one Balakrishnan , who is none other than the brother of the said Nataraja Chettiar. At that time, P.W.1's uncle one Murugan was present and P.W.1 was talking with him. When Accused called P.W.1 to have a talk with her privately , P.W.1 refused. P.W.1, thereafter, rushed to Natarajan's house where P.W.1's aunty was not available and P.W.1 alone was in the house. During that time, accused approached P.W.1 and both of them went out of the house to a varandah of a nearby school where the accused suddenly embraced P.W.1 and kissed her. When the accused wanted her to remove her dress, P.W.1 refused. When P.W.1 resisted, the accused threatened her that he will commit suicide and he beat her once. Then, the Accused committed rape on her by promissing that he will marry her. P.W.1 thereafter returned to the house of her relative and informed P.W.4 about the incident. Thereafter, a village panchayat was convened and it continued till 24.04.2003 wherein the accused promised to marry P.W.1 in a month's time. The parents of the accused were also parties to the panchayat. After 20 days, once P.W.1's parents went to the house of the accused. The parents of the accused, referring to their status, demanded 20 sovereigns of jewels from P.W.1's parents for arranging for the marriage. When P.W.2 readily agreed to give his house property at Madras to the accused, the family members of the accused informed that the accused was going to get married the bride to whom he was engaged to be married he was betrothed and refused to marry P.W.1. Thereafter, on 11.05.2003 , P.Ws.1 and 2 went to Uthiramerur Police Station and gave Ex.P.1 Complaint. (ii) On receipt of Ex.P.1 Complaint from P.W.1, P.W.8, the Sub Inspector of Police registered a case in Cr.No. Crime No.264 of 2003 for offences under Sections 366, 376 and 417 of IPC. He took up investigation, prepared Ex.P.12 printed FIR, inspected the place of occurrence , prepared Ex.P.13 rough sketch and examined P.W.1 and few other witnesses and recorded their statements. On 11.05.2003, at about 12.00 noon, P.W.8 arrested the accused and forwarded him to judicial remand. He recovered the cloths worn by the accused as well as the victim at the time of the alleged https://hcservices.ecourts.gov.in/hcservices/ occurrence and forwarded them for chemical examination through court. P.W.1 was subjected to medical examination on 13.5.2003. P.W.6 Doctor Murugesan on examination of the victim, opined that the vaginal of the victim admitted two fingers without pain. He opined that P.W.1 victim would have had sexual intercourse. He issued Ex.P.4 certificate to that effect. Ex.P.5 Certificate relates to the age of the victim. According to P.W.6 Doctor, the victim was aged between 18 and 19. P.W.6 Doctor on examination of the accused found that he was potent and issued Ex.P.6 Certificate to that effect. P.W.5 is the Head Master of Government High School who issued School Transfer Certificate Ex.P.3 wherein the date of birth of the victim is mentioned as 20.05.1986. P.W.7 the Inspector of Police continued the investigation, examined P.W.1 and some other witnesses including doctor and the Head Master and recorded their statements, collected the materials and upon completion of the investigation, he laid the final report against the accused/the appellant for offences under Sections 366, 376 and 417 of IPC. 4. On committal, the case was taken up for trial by the trial Court. The trial Court framed charges as against the Accused under Sections 366, 376 and 417 of IPC. The appellant denied the charges. During trial, as many as 8 witnesses were examined on the side of the prosecution and 15 documents were exhibited besides 7 material objects were marked. On completion of recording of evidence on the side of the prosecution, the Appellant was questioned under Section 313 of Cr.P.C. wherein he denied the evidences of the prosecution witnesses. Further, on the side of the defence, one Ms.Thulasi Bai [Women Constable] was examined as D.W.1 and letter dated 13.05.2003 addressed to the Judicial Magistrate, Uthiramerur was marked as Ex.D.1. Having considered all the above, the trial Court found the Appellant guilty for offence under Section 376 and 417 of IPC and imposed appropriate punishments as indicated at the earlier paragraphs of this judgement. Hence, the present appeal. 5. The vehement contention of the appellant is that according to the Doctor P.W.6, the age of the victim girl was above 18 and below 19 and the clinical examination would further reveal that she has already had sexual intercourse and that she was a girl of easy virtues character and the present complaint has been pressed into service after a long delay. Hence, the appellant is entitled for the benefit of doubt. 6. The learned Government Advocate [Criminal Side] would on the other hand contend that there was no express consent given by the victim to the appellant for sexual intercourse and hence, the trial court was right in convicting the appellant for offences under Sections 376 and 417 of IPC. https://hcservices.ecourts.gov.in/hcservices/ 7. I have considered the arguments advanced on either side and also perused the available materials carefully. 8. P.W.1 is the victim. P.W.2 is the father and P.W.3 is the mother. P.W.5 is the Head Master of the Government School where the victim studied. According to Ex.P.3 Certificate issued by P.W.5, the date of birth of P.W.1 is 20.05.1986. P.W.6 Doctor would also state that P.W.1, the victim was aged above 18 and below 19 years at the time of occurrence. P.W.1 would state that when she was at her relative's house, the appellant came there and informed that she wanted to talk to her personally, for which, she did not agree. After some time, when she was alone at her grand parents' house, the accused came there and at his request, she came out of her grand parents house and both of them had gone to the nearby play ground of a school where, the occurrence is said to have taken place. In short, from the evidence of P.W.1 it is clear that the occurrence is said to have taken place out side the house. If she was not a consenting party to have a sexual intercourse, immediately after the appellant approached her with an intention to have sex, she would have raised hue and cry. There is no such instance in this case even according to the prosecution. From this and coupled with the evidence of the Doctor, I am of the view that the victim was a consenting party and that is the reason why she had consented for sexual intercourse. From the evidence of P.W.2, the father, P.W.3 , the mother of the victim and P.W.4, a relative of the victim P.W.1 as well as the appellant, it is clear that both their families initially wanted to make a comprise by giving the victim in marriage to the appellant. Later on, the elders of the family of the appellant objected on account of their custom in regard to providing jewel for the bride. Therefore, it is very clear from the above that the delay in giving the complaint is only due to efforts taken by the families of both the appellant as well as the victimin settling the dispute amicably. When the aim was not achieved , a complaint came to be lodged by the victim. On considering the above aspects, coupled with medical evidence, I am of the view that P.W.1 was aged above 18 at the time of occurrence and she consented herself for sexual intercourse. The trial court has failed to look into this aspect which is very germane to decide the case. 9. In view of the above, I hold that the prosecution has miserably failed to prove the charges levelled against the appellant beyond any reasonable doubt and that the trial court was wrong in convicting and sentencing the appellant for offences under Section 376 and 417 of IPC and the benefit of doubt should be given in favour of the appellant. 10. In the result, the criminal appeal is allowed and the conviction of the appellant for the offences under Section 376 and 417 of IPC and sentences imposed on him by judgement dated 09.09.2004 made in S.C.No.74 of 2004 on the file of the learned Additional Sessions Judge, Fast Track Court No.II, Kancheepuram are https://hcservices.ecourts.gov.in/hcservices/ set aside. Bail Bond executed by the appellant shall stand cancelled. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kmk 1.The Additional Sessions Judge, Fast Track Court No.II, Kancheepuram. 2. -Do-Thro The Principal Sessions Judge, Chengalpattu. 3. The Judicial Magistrate, Uthiramerur 4. -do-Thro The Chief Judicial Magistrate, Chengalpattu 5. The Superintendent, Central Prison, Vellore 6. The Inspector of Police, Uthiramerur Police Station, Kancheepuram District. Copy to: The Section Officer, Criminal Section, High Court, Madras. +1 CC to Mr.R.Rajasekaran, Advocate, S.R.No.10889 Crl. A. No.1119 of 2004 CK(CO) SRA(16/6/2011) https://hcservices.ecourts.gov.in/hcservices/