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Judgment
P. Devadass, J.—A1 to A4 are the Appellants herein
A1 is the son of A2 and A3. A4 is the then President, Kakkalur village in Vikiravandi Taluk in Villupuram District.
Before the learned Special Judge under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act Principal Sessions Judge, Villupuram, they were tried in the Sessions Case in S.C No. 34 of 2008
Ultimately, they were convicted and sentenced as under:
Accused
Conviction
Sentence
Manoharan/A1
(i)Section 417, IPC (ii)Section 376, IPC (iii)Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
(i)3 months'' SI and fine Rs. 3,000 - in default 3 months'' SI; (ii)10 years'' RI and fine Rs. 25,000/- in default 6 months'' RI; (iii) 2 years� RI and fine Rs. 5,000/- in default 3 months; RI
Murugaian/A2
(i)Section 506(i) (ii)Section 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
(i)1 year�s RI and fine Rs. 5,000- in default 3 months� SI; (ii)2 years� RI and fine Rs. 5,000/- in default 3 months'' RI;
Chinnapunnu/A3
Section 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
2 years� RI and fine Rs. 5.000/- in default 3 months'' RI;
Subramani/A4
Section 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
2 years RI and fine Rs. 5,000 - in default 3 months'' RI;
The learned Special Judge has directed their sentences to run concurrently They have paid the fine amounts.
The case of the prosecution is this:
(i) PW1 & A1 to A4 belongs to Kakkalur village A1 fell in love with PW1 he was mad after her, PW1 was led to believe that they were made for each other, making her to believe that he will marry her, A1 had raped PW1.
(ii) PW1 is an Irula girl, a Scheduled Tribe (Ex.P4 Community Certificate issued by PW2 Revenue Divisional Officer, Villupuram) As per Ex P3-Community Certificate, A1 to A4 are not members of Scheduled Caste and Scheduled Tribe Community. As per Ex.P7-Certificate, then PW1 was 18 years old.
(iii) Later, there was stiff opposition from A2 and A3 for the marriage between A1 and PW1 PW1 wanted justice. She met A4 and complained to him he told her since she belongs to Irula Community, her marrying A1 will bring shame to Kakkalur village in the circumstances. PW1 gave ex P1 Complaint to Kakkalur police PW10, Sub-Inspector. PW10 registered this case (Ex.P5 FIR) Investigation was taken by PW-13 D.S.P./Sub-Divisional (Officer, Villupuram.
(iv) PW 13 took up his investigation. PW11, Dr Pandian examined PW1 and confirmed that she has been subjected to sexual intercourse. As per ex P6-Certificate, A1 is capable of performing sexual act The Investigation Officer after completing his investigation, filed the Final Report before the concerned Court.
(v) The learned Special Judge considering the materials on record and upon hearing both sides, framed charges as against A1 to A4 They have not pleaded guilty to the charges.
(vi) To substantiate the charges, prosecution examined PWs. 1 to 13, marked Exs. P1 to P8.
(vii) The Accused were examined on the incriminating aspects in the prosecution evidence under Section 313, Cr.P.C.
(viii) They have denied the offences They did not adduce defence evidence.
(ix) Appreciating the said evidence, the Trial Court convicted A1 to A4 and sentenced them as already stated in Paragraph No. 4.
The learned Counsel for the First Appellant/A1 submits that so far as A1 is concerned, she is confining her arguments only with reference to the sentence aspect She would submit that subsequent to the conviction, A1 married PW1 on 17.5.2011, They have become happy married couples. A female child born to them brought further happiness to their family in the circumstances, sending A1 to jail to serve the sentence virtually separate this happy couples. The child also will be the worst sufferer Notwithstanding the caste barrier. A1 and PW1 have become spouses, PW1 has been accepted by A1 s family, she is living with them happily in the circumstances, both the families have compromised the matter in view of these special circumstances, the learned Counsel for A1 will plead for mercy and the united couples may not be separated.
Mr. K. Kumaran, the learned Counsel submitted that PW1 is present today in Court PW1 was identified by the learned Counsel Today. A2 to A4 were also present.
PW1 filed separate supporting affidavit She also stated before this Court that she is leading happy married life with A1 with their child PW1 stated that she is being happily taken care of by A1 and her in-laws, and relatives.
With respect to the conviction under Section 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the learned counsel for the appellants submitted that it is legally unsustainable because the ingredients for the offence has not been established.
The learned Counsel for the Appellants also contended that the evidence adduced and the nature of the act complained of would not warrant a conviction under Section 506(i), IPC
the learned Additional Public Prosecutor submitted that the record as well as the statement of PW1 who is present today shows that A1 & PW1 have married and are living together There are decisions that in such circumstances. Courts can take a pragmatic view enabling them to continue their happy married life.
The learned Additional Public Prosecutor also submitted that as regards other offences as well as regards A2 to A4 referring to the evidence adduced, the Trial Court has recorded the conviction and accordingly punished them.
I have anxiously considered the rival submissions and perused the judgment and evidence on record.
A1 and PW1 were lovebirds. The evidence of PW1 coupled with medical evidence very clearly establishes the offences under Sections 376 & 417. IPC as against A1 in the circumstances, we are not to disturb the findings recorded as against A1 under Sections 376 & 417, IPC.
The evidence of PW1 is that when she met the Accused and pleaded for her marriage with A1, they have stated to have told her that if A1 marries PW1, a Irula Community girl, it will bring shame to Kakkalur village it is pertinent to note that the evidence on PW1 is that she met them at their house.
The essential requirement for an offence under Section 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is that there must be intentional insulting of a member of Scheduled Caste/ Scheduled Tribe and that too in any place within public view.
Now in this case, even as per the prosecution version, the alleged incident took place at the residence Therefore, the charge under Section 3(i)(x) of the said Act is not made out.
A2 is the father of A1.
The learned Special Judge took the evidence of PW1 that A2 scolded her mentioning her caste name expressing his displeasure in her wish to many his son/A1 and also used some obscene words against PW1 to convict him under Section 506(1) IPC.
The requirement for an offence under Section 506(1), IPC dealing with Criminal intimidation is as such that it should be within an intention to threaten Mere words, words without any intention is not sufficient There are lethal words Mouth is the most dangerous weapon. It is the source which makes a person a hero and also a zero. But. it is not equivalent to a lethal weapon. Lethal words cannot be exchanged for lethal weapons.
Now in this case, even taking the evidence of PW1 as such, with reference to the usage of the alleged demeaning words it will not be Criminal intimidation Thus, an offence under Section 506(i), IPC is not made out as against A2.
Now the result of our deliberations is that AI to A4 got clean chit from the charges under Section 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and A2 is exonerated from the charge under Section 506(i), IPC.
Now A1 stood convicted and confirmed for offences under Sections 376 and 417. IPC.
As already said A1 & PW1 were lovers After his conviction. PW1 says that she has forgiven him. Accepted him as her husband She is living happily with him in there family. She also says that if A1 is sent to jail, she alone has to go to see him at the jail along with her child.
In her Affidavit. PW1 had stated as under :
(i) I submit that after the above incidents the above named Accused 1-4 regretted for the bitter incidents which took place and approached my parents to ensure a happy and peaceful end in result of which myself and the Accused No 1-Manogaran got married at our residence on 17.5.2011 with the blessings of the parents, elders and friends of both the families.
(ii) I submit that out of our wedlock, we begot a female child and named her Manisha who is two years old now.
(iii) I submit that I am leading a peaceful and happy married life with my husband Manogaran and my in-laws Murugaiyan and Chinnaponnu as a joint family. My husband and my in-laws are so caring towards me and our child Manisha by all means.
(iv) I submit that when tilings are thus I am very much in need of my husband and my in-laws who are the Appellants Accused in the above case if the Appellants are penalised, I would lose my family and my condition along with my daughter''s would become very pathetic.
(v) I submit that I am fully dependent on my husband and my in-laws and I sincerely opine that there is no point in proceeding with the above case any further since I am married and living with the Accused-1 and the Accused 2 & 3 are my in-laws and the Accused-4 is our well wisher and a good family friend."
A1 has married PW1. Their Marriage Certificate, marriage photo, child''s Birth Certificate and the statement of PW1 confirms her assertion A2 to A4 who are present today also affirms this.
In the circumstances, what shall we do with A1 Whether he is to be sent to jail or allowed to live with his wife PW1 and their daughter.
It is crime and punishment Crime and punishment are not one and the same `Crime'' comes first then comes `punishment'' Crime is an abnormal deviant behaviour it will be crime when it is prescribed as such under a Penal Law.
Recording of convictions shall be in accordance with the ingredients of the Penal provisions, which must be established beyond all reasonable doubts.
That part of law winch deals with punishments is `Penology'' that part of law which deals with victims of crime is `Victimology''. It is also a study of `Sociology'' and ''human psychology''.
Penlogicial considerations must involve sociological considerations This is also an objective behind Sections 248, 235 & 357, Cr.P.C. They give much scope for the Trial Court Judges and the Appellate Court Judges exercising Criminal jurisdiction, playing a pragmatic role in rendering justice in proportion to the offence established it is a matter of sentencing policy also There is no cut and dried formula or golden scale to weight them. In appropriate and fit cases pragmatic approach is needed.
Long long ago, we have bid farewell to the archaic Hammurabi''s Code of Penology namely, `an eye for an eye'', `tooth for a tooth''. There is vast difference and distance between retributive justice and reformative justice
Human mind (of Judges) cannot be replaced by feeling less inanimate computers to award sentence.
Sociological considerations must play a role while making penological considerations. the factors that the convicted is the only source of income and support to the family, his dependents, effect of crime on the Society and the nature of the Accused, nature of the offence committed, possibility of reformation, repentance, redemption also to be taken into account before awarding sentence it depends on the facts and circumstances of each case.
Sections 235 & 248. Cr.P.O. are not mere empty formalities it empowers the Court to play a significant role while awarding appropriate sentence.
Now A1 has married PW1. This happy incident took place after the conviction recorded by the Trial Court A1 & PW1 have become life partners. They have a female child in such circumstances, there is no point in depriving PW1 and her child, their hard earned happiness by sending A1 to jail That is not the hallmark or end of justice. Justice always to be tempered with mercy. The majesty of justice lies in its magnanimity.
Under similar circumstances in Ravindra v. State of Madhya Pradesh, 2015 (1) MWN (Cr.) 400 (SC) : CDJ 2015 SC 163, when the Accused who was convicted under Section 376, IPC has married the victim as in our case and there was compromise between them as before us, the Hon''ble Supreme Court referring to the Proviso to Section 376. IPC considered this a special reason to reduce the sentence to the period already undergone. Similar view also has been taken in Wasim v. State, CDJ 2014 DHC 2901.
It is pertinent to note that in Ravindra (supra), the Hon''ble Supreme Court took note of the human sentiments and human elements.
Courts are made of sands and bricks. But are manned by human beings to render justice.
In the facts and circumstances, considering the transformation of A1 and marrying PW1 with the support of one and all and becoming the father of a child and leading a happy married life with PW1 and the child as a special reason to reduce the sentence to the period already undergone.
In the result,-
(i) This Criminal Appeal is allowed in part;
(ii) The conviction of A1 under Sections 376 & 417, IPC are confirmed;
(iii) His sentence under Sections 376 & 417, IPC are modified to the period already undergone;
(iv) A1 to A4 are acquitted from the charges under Section 3(i)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act;
(v)A2 is acquitted from the charge under Section 506(i), IPC;
(vi) The fine amounts paid by A2 to A4 shall be refunded.
Consequently, connected M.P. No. 1 of 2015 is closed.