A. Thangapandi vs State

Aruna Jagadeesan, J.—This appeal is filed against the judgment of conviction and sentence passed by the learned Sessions Judge, Mahila Court, Chennai, in S.C. No.153 of 2013 dated 07.05.2014 whereby the appellant/ accused was convicted under Sections 376 and 417 IPC and sentenced to undergo 10 years rigorous imprisonment and to pay a fine of Rs.10,000/-, in default, to undergo six months imprisonment for the offence under section 376 IPC and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.1000/-, in default, to undergo 1 month simple imprisonment for the offence under section 417 IPC and the sentences are directed to run concurrently.

The case of the prosecution is briefly stated as under:

i)The victim girl Saranya has given a complaint before the respondent police stating that she was residing in Old Washermenpet with her parents; that the accused Thangapandi was her neighbour; that she had love affair with the accused for the past four years; that on 24.06.2012, the accused called her when his parents were not in his house and persuaded her and promised to marry her and had sexual intercourse with her against her consent; that thereafter, when the victim girl asked him to marry her, he refused to marry her. Hence, a complaint came to be registered in Crime No. 983/2012 for the offence under sections 376 and 417 IPC as against the accused and the charge sheet was filed.

In order to substantiate the charges levelled against the accused, the prosecution examined 7 witnesses and marked 8 exhibits and no material object was marked. Two witnesses were examined on the side of the accused but no exhibit was marked on the side of the defence. The accused were questioned under section 313 Cr.P.C. as to the incriminating circumstances found in the prosecution case and he denied them as false. On completion of trial and on hearing the arguments on either side and on scrutiny of the available materials on record, the trial Court found the accused guilty under sections 376 and 417 IPC and passed the judgment of conviction and sentence as referred to above. Hence, this appeal at the instance of the appellant.

From the evidence of the victim girl it is seen the she had love affair with the accused for the past four years and she was a major at the time of occurrence. The victim girl did not make any protest or tried to escape from the accused at the time of sexual intercourse and it is only a consensual act. Therefore, the offence under section 376 is not attracted.

It would be apt and appropriate to refer to the judgment reported in Deepak Gulati Vs. State of Haryana, wherein it is held as follows:

There is a distinction between the mere breach of a promise, and not fulfilling a false promise. There must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise of marry the victim. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. The failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term misconception of fact, the fact must have an immediate relevance. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.

It is relevant to refer to the judgment reported in Kaini Rajan Vs. State of Kerala, wherein it is held as follows:

This Court examined the scope of section 375 IPC in a case where the facts have some resemblance with the one in hand. Reference may be made to the judgment of this Court in Deelip Singh v. State of Bihar. In that case, this Court examined the meaning and content of the expression "without her consent" in Section 375 IPC as well as whether the consent given by a woman believing the man''s promise to marry her, is a consent which excludes the offence of rape. This Court endorsed the principle that a misrepresentation as regards the intention of the person seeking consent i.e., the accused, could give rise to the misconception of fact. While applying this principle to a case arising under Section 375 IPC, this Court held that the consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact. But a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90 IPC. This Court further held that (SCC p.104, para 28)

"28....If on facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of the second clause of Section 375 IPC."

During the pendency of the proceedings in this Court, the victim girl and the appellant appeared to have duly compromised. They appeared before this Court and would state that they got married and living together happily. The victim girl would state that she does not want to precipitate the matter further and she is now leading a peaceful life. The same is recorded.

Considering the evidence placed on record and that the victim girl was known to the appellant already and they had sexual relationship without any protest from the victim girl, it cannot be said that the appellant had sexual intercourse forcibly with the victim girl against her will or consent. The trial court had come to the conclusion that the offence under section 376 IPC as against the appellant was proved and convicted him for the offence under section 376 IPC which is unsustainable on facts and law and therefore, the same is liable to be set aside.

In so far as offence committed by the accused under section 417 IPC is concerned, it is established through the evidence of prosecution, more particularly, the victim girl that the accused had subjected her to sexual intercourse on false promise of marrying her. Therefore, I am of the considered view that the prosecution has proved the offence of cheating against the accused and the conviction rendered by the trial court for the offence under section 417 IPC is confirmed. The appellant has undergone incarceration for 77 days.

Considering the fact that the victim girl was major at the time of occurrence and was also a consenting party for the sexual intercourse and now, the parties have entered into a compromise and also taking into account that the victim girl does not want to precipitate the matter further, I am of the considered opinion that this matter should be now given a quietus. Therefore, I am of the view that while maintaining the conviction under section 417 IPC as against the appellant as recorded by the court below, the sentence imposed on the appellant could be modified to the period already undergone by him and that the conviction and sentence imposed on the appellant by the trial Court for the offence under section 376 IPC is liable to be set aside.

In the result,

i) The judgment of conviction passed by the learned Sessions Judge, Mahila Court, Chennai made in S.C. No.153 of 2013 dated 07.05.2014 for the offence under section 417 IPC as against the appellant is confirmed, however, the sentence imposed on the appellant for the offence under section 417 IPC is reduced to the period already undergone by him. The fine amount imposed on the accused under section 417 IPC is confirmed.

ii) The judgment of conviction and sentence passed by the learned Sessions Judge, Mahila Court, Chennai, made in S.C. No.153 of 2014 dated 07.05.2014 for the offence under section 376 IPC as against the appellant is set aside. Fine amount, if any, paid by the appellant shall be refunded to him.

iv) Bail bond, if any, executed by the appellant shall stand cancelled.

v) Accordingly, the criminal appeal is disposed of.

vi) Consequently, connected M.P. No.1 of 2014 is closed.