Balaji alias Appu vs The State rep. By Inspector of Police

Challenge in this Criminal Appeal is to the conviction and sentence passed in S.C.No.232/2011 dated 12.12.2012 on the file of Mahila Sessions Court, Chennai.

The appellant/accused, who was found guilty and sentenced under Section 376 and 417 of IPC by the trial court in S.C.No.232 of 2011, has come forward with this appeal seeking to set aside the same and to acquit him.

The case of the prosecution is that on 25.10.2010, the appellant/accused by giving false promise of marrying her to the minor victim girl viz., Divya aged about 15 years, took her to his house at No.51, Annai Sathya Nagar, 1st street, West Jafferkanpet, Chennai-83 and by compulsion had physical relationship with her and thereby committed offence punishable under Section 376 IPC and 417 IPC. P.Ws.2 on coming to know that her daughter is pregnant on account of the physical relationship she had with the accused on believing that he will marry her, has given a complaint and the same has been registered by the P.W.18 in Crime No.1286 of 2010. The complaint alleged to have been given by P.W.2 is marked as Ex.P.2.

On receipt of Ex.P.2, P.W.18-Investigating Officer has taken up investigation and also made arrangements to conduct test on both the accused and victim and also recorded statements of the witnesses. After his transfer, P.W.19, taken charge and made further investigation and has laid the final report on the file of 23rd Metropolitan Magistrate, Saidapet and the same has been taken on file in P.R.C.No.65/2011.

The 23rd Metropolitan Magistrate, Saidapet, after considering the facts that the offences alleged to have been committed by the accused are triable by the sessions court has committed the case to the trial court and the same has been taken on file in Sessions Case No.232 of2011.

The trial court, after hearing the arguments of both sides and upon perusing the relevant documents has framed two charges against the accused under section 376 and 417 of IPC and the same has been read over and explained to him. The accused has denied the charges and claimed to be tried.

On the side of the prosecution, P.Ws.1 to 19 have been examined, Exhibits P.1 to P.23 have been marked.

When the accused has been questioned under Section 313 of the Code of Criminal Procedure, 1973, in respect of the incriminating materials available in evidence against him, he denied his complicity in the crime. D.W.1/Angaleswari and Ex.D.1- Horoscope of the victim girl has been marked on the side of accused.

The trial court, after hearing arguments of both sides and upon perusing the relevant evidence available on record has found the charge against the accused proved beyond reasonable doubt and thereby found the accused guilty under Section 376 IPC and sentenced him to undergo 10 years rigorous imprisonment and also imposed a fine of Rs.10,000/-, in default to undergo six months simple imprisonment and further found him guilty under Section 417 of IPC and sentenced him to undergo one year rigorous imprisonment and also imposed a fine of Rs.1,000/-, in default to undergo two months simple imprisonment and further ordered both the sentences to run concurrently. Aggrieved over the same, the appellant/accused has preferred this criminal appeal.

According to the learned counsel for the appellant/accused, the following infirmities in the prosecution case viz., (1) Ex.D.1/Horoscope of the victim girl has not been considered properly by the trial court, wherein, the date of birth of the victim girl is 20.12.1992 and the same was marked through P.W.1 and the victim girl is major and thereby submitted that the offence under Section 376 of IPC is not made out against the appellant/accused; (2) the doctor P.W.16 who conducted the medical examination of P.W.1 did not choose to conduct the test to determine the age of the victim girl and thus in the absence of conclusive proof with regard to the age of the victim girl, the conviction is not sustainable.

(3) the trial court has failed to consider the fact that the appellant/accused and his mother both had requested P.W.2 to arrange for the marriage of her daughter P.W.1/victim girl, but P.W.2 refused on the ground that the appellant belongs to different community.

(4) the fact that P.W.4 brother of P.W.1 did not like the appellant/accused and refused for their marriage and at his instance, the above complaint has been given by P.W.1/victim girl was not taken into consideration.

(5) further the fact that P.W.19, the Investigation Officer has admitted in the cross examination that during the course of his investigation, he came to know that P.W.1 and the accused had fallen in love with each other and since the appellant/accused belong to different community, P.W.2 did not accept the marriage, was also not taken into consideration by the trial court. Thus the learned counsel, pleaded to entertain the appeal and to set aside the conclusion arrived at and the sentence imposed by the trial court.

1. According to victim/P.W.1, while she had love affair with the accused for one year and the accused used to take her to his house, when there is nobody at his house and on believing that the accused would marry her and on his request, she had physical relationship with him. Further the victim girl/P.W.1, in the cross examination stated that the accused is still interested in getting married to her but only because of her brother''s dislike towards him, the problem arose and that her date of birth given in the complaint/Ex.P.1 is not correct. Thus, according to P.W.1, the occurrence of rape took place at the house of the accused and she gave consent to the same and her date of birth as noted in Ex.P.1 is not correct and the date given in Ex.D.1-horoscope is true one. 11.2. P.W.2 also corroborated the version of P.W.1 on the aspect that on believing that the accused would marry her, her daughter P.W.1 had physical relationship with the accused.

11.3. Prosecution examined P.W.16-Doctor M.Seethalakshmi, who stated in her evidence that on 29.12.2010, at about 11 a.m., while she was on duty in the Madras Medical College Hospital, at the request of 23rd Metropolitan Magistrate, Saidapet, the victim girl Divya stated to be aged 16 was brought by Women Police viz., Latha and Selvi, in connection with Crime No.1286 of 2010. P.W.16 further stated that the victim girl stated that she had love affair with an auto driver viz., Balaji and for the first time, she had physical relationship with the said Balaji on September 2010 and again on October 25, 2010, she had physical relationship with him and her last mensus date was 7th October 2010. P.W.16 further stated that the girl was sent to Kasthuribai Gandhi hospital for confirmation of pregnancy.

11.4. The Prosecution also examined P.W.17-Doctor Gayathridevi, who stated in her evidence that on 29.12.2010, at about 11 a.m., while she was on duty in the Kasthuribai Gandhi Hospital, examined the victim girl, who stated to have had physical relationship with her brother''s friend for 4 to 5 times and on examination, an embryo of the growth of 7 to 8 weeks was present. Ex.P.13-Accident Register, Ex.P.15-scan report, Ex.P.16-Blood test report and Ex.P.17 is the medical test report was stated to be given by P.W.17.

11.5. The prosecution also examined P.W.15-Doctor Thunderchief, who conducted test on the accused and according to him, the accused was not impotent. The medical certificate given in respect of the same is produced as Ex.P.9.

11.6. According to P.W.18-Gunasekaran, the Investigating Officer of the case, on the basis of Ex.P.1/complaint given by the mother of the victim, he registered FIR/Ex.P.19 and after examining the victim and other witnesses, she visited the occurrence spot and prepared Ex.P.3-Observation Mahazar and Rough Sketch Ex.P.20 and also took steps to examine the victim under Section 164 Cr.P.C., and recorded her statement and also examined the doctor who conducted test on the victim girl as well as the accused and recorded their statements and thereafter, he was transferred, hence, handed over the file to the Inspector of Police, who assumed charge therein.

11.7. According to P.W.19-Aranganathan, the Investigating Officer, who subsequently taken charge, had altered the section from 376 IPC to 417 and Section 376 IPC and the altered section report is marked as Ex.P.23 and thereafter, he filed charge sheet under Section 417 and 376 IPC.

Thus prosecution contends that oral and documentary evidence produced by them will substantiate the allegation against the accused and the same has been accepted by the trial court, which found the accused guilty of the offence as stated above.

Heard both sides.

The learned counsel for the appellant contended that the trial court has not appreciated the evidence properly. It is seen from the evidence of the victim/P.W.1 that nothing is stated specifically about the date and place, where the alleged act of rape was committed. It is only generally stated by P.W.1 that she will go to the house of accused and nobody else were available at that time, but she has not stated specifically as to whether the alleged act of rape took place in the accused house and on what date. According to P.W.1, she was promised by the accused that he will marry her and on believing that, she had sex with him. There is nothing on record to show that accused was not willing to marry the accused. It is admitted by P.W.1 herself in the cross examination that the accused was prepared to marry her even now, and only because, her brother is not liking the accused, problem cropped up. The other witnesses examined as P.Ws.2 to 4 are hearsay witnesses and they do not help to establish the prosecution case in any manner. It is therefore clear that there is no acceptable evidence to show that the victim was physically assaulted by the accused as alleged by the prosecution.

It is contended on the side of prosecution that the victim being a minor girl, even if she gave consent for physical relationship, it will amount to offence under Section 376 IPC. To prove that the victim girl is a minor, the prosecution produced her School Leaving Certificate as Ex.P.1, wherein, the date of birth of the victim is stated as

02.1995. However, P.W.1, in her evidence stated that the date given in Ex.P.1 is not correct date. There is no other evidence regarding the correct age of the victim on the side of the prosecution. The doctor who had examined the victim girl has not assessed her age. No certificate has been obtained from the doctor, who deposed as P.W.16., regarding the age of the victim. She admitted that no x-ray was taken to determine the age of the victim and no certificate was given by her regarding the victim''s age. Thus prosecution has not let in clear evidence regarding the age of the victim/P.W.1. On the other hand, the defence produced Horoscope of the victim girl as Ex.D.1. P.W.1 admitted that it is her horoscope and the same was written by her mother while she was studying 10th standard. In the said Ex.D.1, the date of birth is mentioned as 20.12.1992. Thus, the prosecution has not clearly established the fact that the victim girl was a minor at the time of the alleged occurrence. In such circumstances, it is clear that the prosecution has failed to establish the fact that the accused had physical relationship with the minor girl after making false promise as alleged by the prosecution. As stated earlier, the prosecution has not established the fact of victim being physically assaulted by the accused.

Further, it is pointed out by the learned counsel for the accused that the trial court failed to take into consideration the evidence placed before it regarding the refusal of the parents of the victim girl to give her in marriage to the accused. The mother of the accused, who deposed as D.W.1 categorically stated that they were ready to give the accused in marriage to victim girl. It is stated by P.W.6 that the accused came to the house of victim girl and asked her father to give the victim girl in marriage to him but the same was refused by the parents of the victim girl. It is admitted by P.W.18, the Investigating Officer of the case that, the victim''s mother/P.W.2 has stated in her statement that she refused to give her daughter in marriage to the accused inspite of the request to her by the family of the accused. It is therefore clear that the accused never refused to marry the victim girl, but on the other hand it is only the family of the victim girl who refused to give her in marriage, to the accused. In such circumstances, the finding of the trial court in respect of the offences alleged against the accused is unacceptable and the same is liable to be set aside.

When the matter was taken up for hearing today, the accused as well as victim are present and affidavit has been filed by the victim girl stating that she got married to the accused and they are living together happily. It is stated that the accused and the complainant are living a happy married life and having 2 children born on 02.02.2015 and 19.12.2016. The appellant also filed the copy of their marriage invitation, marriage certificate, marriage receipt from Arulmigu Vadapalani Andavar Thirukoil, Vadapalani, Chennai-26, Birth Certirficate of the 1st child by name Thiruvarasu and the Birth Certificate of the 2nd child, before this court, in support of the factum of their marriage. A copy of Aadhar Card, wherein, the victim is stated to be the wife of Balaji, accused herein is also produced before this court, in support of the factum of their marriage. The learned counsel appearing for the appellant contended that the alleged victim and the accused are now married, living happily and the said fact also may be taken into consideration by this court. The learned Additional Public Prosecutor also verified the present status and stated that the appellant and the victim are living together after their marriage. In view of the above stated discussion, it is crystal clear that the finding of the trial court cannot be sustained and the same is liable to be set aside. Accordingly, the issues arisen for consideration in this criminal appeal is answered in favour of the accused.

In the result, this Criminal Appeal is allowed. The conviction and sentence passed in Sessions Case No.232/2011 passed by the Mahila Sessions Court, Chennai, are set aside. The appellant/accused is acquitted. Bail bond, if any executed by him shall stand cancelled. Fine amount, if any paid by him is ordered to be refunded forthwith.