Kumar vs State

A.C. Arumugaperumal Adityan, J.—The accused, who has been convicted u/s 376 IPC and also u/s 417 IPC by the learned Additional

Sessions Judge, (FTC), Ariyalur, is the appellant herein.

The short facts of the case of the prosecution is that under the pretext of marriage the accused had cohabited with the victim girl P.W.1 on very

many occasions which attracted an offence u/s 417 and 376 IPC.

The case was taken on file by the learned Judicial Magistrate, Perambalur and on appearance of the accused on summons copies u/s 207 of

Cr.P.C., were furnished to the accused and since the case is exclusively triable by the Court of Sessions, the learned Judicial Magistrate has

committed the case to the Court of Sessions u/s 209 of Cr.P.C.

The learned additional Sessions Judge, FTC, Ariyalur, on appearance of the accused, had framed charges u/s 376 IPC and also u/s 417 IPC

and when the charges were explained to the accused and questioned the accused pleaded not guilty. On the side of the prosecution, P.W.1 to

P.W.5 were examined and Ex.P.1 to Ex.P.10 were marked.

P.W.1 is the victim girl. Even according to her, her age at the time of the occurrence was about 22 years. She would admit that the accused also

belongs to the Keeraperambalur village and that both of them are lovers for the past one year and that the accused had promised to marry her and

some six months prior to the date of her deposition while she was taking bath in a motor pumpset belonging to one Jothi, the accused had forcibly

committed the offence of rape and after committing the offence, he had promised to marry her and only under such circumstance, she did not

reveal the incident to any one else. According to her, she became pregnant and that she informed the same to the accused on 27.1.2004 at about

5.30 pm. Thereafter, the accused had informed her that his parents are not willing for the marriage and he suggested that both of them can ran

away from the village. As decided earlier, at about 5.30 am on the following day, she went and waited in the place suggested by the accused, but

the accused did not turn up. Hence, she preferred Ex.P.1-complaint.

P.W.2 is the doctor, who had examined P.W.1 on 12.2.2004 at about 10.55 am, as per the letter of requisition received from the Judicial

Magistrate, Perambalur under Ex.P.2. According to P.W.2, P.W.1 had informed that she has been raped by one known person. On examination

P.W.2 has found the hymen of the victim girl P.W.1 found ruptured and that the victim girl was not pregnant at that time. Ex.P.3 is the copy of the

accident register. The doctor has opined that P.W.1 is subjected to sexual intercourse very often.

P.W.3 is the doctor, who had examined the accused on 12.2.2004 at about 10.45 pm as per the letter of requisition received by him from the

Judicial Magistrate, Perambalur under Ex.P.4. Ex.P.5 is the certificate issued by P.W.3 to the accused stating that he is potent.

P.W.4 is the witness, who had held P.W.1 to prefer Ex.P.1-complaint.

P.W.5 is the then Inspector of Police, All Women Police Station Perambalur. According to her, P.W.1 appeared in the police station on

10.2.2004 and preferred Ex.P.1-complaint, which was registered under All Women Police Station Perambalur Cr. No. 3 of 2004 u/s 417 and

376 IPC. Ex.P.6 is the copy of the FIR. She had visited the place of occurrence and prepared Ex.P.7-observation mahazar and had drawn

Ex.P.8-rough sketch in the presence of witnesses Selvi & Thotti. She has examined the witnesses and recorded their statements. The accused was

arrested by her on 10.2.2004 at about 18.50 hours and produced before the Judicial Magistrate for judicial remand, after subjecting himself for a

medical test. After completing the formalities, P.W.5 has filed the charge sheet against the accused on 4.4.2004 u/s 417 & 376 IPC.

When incriminating circumstances were put to the accused u/s 313 of Cr.P.C., the accused denied his complicity with the crime. After going

through the evidence both oral and documentary, the learned trial judge has come to the conclusion that the accused has committed the offence u/s

376 IPC and also u/s 417 IPC and accordingly convicted and sentenced the accused to undergo 7 years RI and slapped a fine of Rs. 5,000/- with

default sentence u/s 376 IPC and convicted and sentenced the accused to undergo one year RI and to pay a fine of Rs. 2,000/- with default

sentence. Aggrieved by the findings of the learned trial judge, the accused has preferred this appeal.

Now the point for determination in this appeal is whether the conviction and sentence of the learned trial judge u/s 376 IPC and u/s 417 IPC

against the accused is liable to be set aside for the reasons stated in the memorandum of appeal?

The Point:- 12(a) To warrant conviction u/s 376 IPC, an offence u/s 375 IPC should have been committed by the accused. If the sexual

intercourse is committed by a person with the consent of the victim girl who is above the age of 16 years then the offence u/s 375 IPC will not be

attracted to warrant punishment u/s 376 IPC. Admittedly in this case even according to the evidence of P.W.1 & P.W.2, the age of the victim girl

P.W.1 at the time of occurrence was 22 years. It is not the case of the prosecution that the accused had forcibly subjected P.W.1 for sexual

intercourse against her will. According to P.W.1, she is in love with the accused for nearly one year before the date of occurrence and that the

accused had promised P.W.1 to marry her and that on the date of occurrence while she was taking bath in a motor pumpset the accused came

there and had intercourse with her in the motor shed itself and that she could not preferred a complaint immediately on the promise made by the

accused to marry her. According to her, she became pregnant subsequently and that she informed this to the accused on 27.1.2001 at about 5.30

pm. But he suggested to ran away from the village since his parents are not willing for the marriage. As planed, she was waiting from 5.30 am on

the following day in the place earmarked for their elopement. But the accused betrayed her. Admittedly this has happened on 27.1.2004 itself. But

in spite of that, the complaint Ex.P.1 was preferred by her only on 10.2.2004. Under such circumstance, it cannot be said that the offence u/s 375

IPC has been attracted against the accused to convict the accused u/s 376 IPC.

12(b) The accused has also been charged u/s 417 IPC on the ground that he has cheated the victim girl P.W.1. What is cheating has been defined

u/s 415 IPC as follows:

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent

that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or

omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or

property, is said to ""cheat"".

Explanation- A dishonest concealment of facts is a deception within the meaning of this section.

It is the definite case of P.W.1 that only under the pretext of marriage the accused had deceived her and subjected her to sexual intercourse with

him. According to P.W.1, on the date of occurrence ie., six months prior to her giving evidence before the Court while she was taking bath in a

motor pumpset the accused came there and with a false promise to marry her had sexual intercourse with her and subsequently he used to have

sexual intercourse, which resulted in her pregnancy. Further on 27.1.2004 the accused had promised her to elope with her. But even though the

victim girl was waiting from the morning at 5.30 am in the place suggested by the accused, he did not turn up which made her to prefer a complaint

against him under Ex.P.1. The evidence of P.W.2, the doctor, will corroborate the evidence of P.W.1 to the effect that she has been subjected to

sexual intercourse since her hymen was found to be ruptured. Even before the Doctor P.W.1 has informed that she has been raped by one known

person. Ex.P.3 is the copy of the accident register issued by P.W.2, the doctor, who had examined P.W.1 after the occurrence. Under such

circumstances, the findings of the learned trial judge that the accused is guilty u/s 417 IPC warrants no interference from this Court. Point is

answered accordingly.

In fine, the appeal is allowed in part and the conviction and sentence passed by the learned trial judge in S.C. No. 119 of 2004 on the file of

the Additional Sessions Judge, (FTC), Ariyalur, u/s 376 IPC is hereby set aside and the conviction and sentence u/s 417 IPC against the accused

is hereby confirmed. It is represented by the learned Counsel for the appellant that the accused had already served out the sentence imposed on

him by the learned trial judge u/s 417 IPC. The fine paid by the accused u/s 376 IPC is to returned to him. The fine imposed u/s 417 IPC shall

sustain.