Jagan @ Jagannathan v. The State

Bail SlipThe Appellant / Accused viz.Jagan @ Jaganathan,S/o.Balakrishna Chettiar was released on bail as per order of thisCourt dated 28.12.2004 and made in Crl.M.P.No.10968 of 2004 inCrl.A.No.1119 of 2004 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :14.02.2011CORAMTHE HONOURABLE MR. JUSTICE A.ARUMUGHASWAMYCrl. Appeal No.1119 of 2004Jagan @ Jagannathan... Appellant /Accused-Versus-The State,Rep. By The Inspector of Police,Uthiramerur Police Station,Kancheepuram District.[Crime No.264 of 2003]... Respondent/ComplainantMemorandum of Grounds of Criminal Appeal under Section 374(2)of the Criminal Procedure Code against the judgement of convictionand sentence dated 09.09.2004 made in S.C.No.74 of 2004 on the fileof the learned Additional Sessions Judge, Fast Track Court No.II,Kancheepuram.For Appellants: Mr.Ashokumar for Mr.R.RajasekaranFor Respondent: Mr.N.Kumanan, Government Advocate [Criminal Side]JUDGEMENTChallenging the conviction and sentence imposed in S.C.No.74of 2004 by the learned Additional Sessions Judge, Fast Track CourtNo.II, Kancheepuram, the sole accused therein has come forward withthis criminal appeal. https://hcservices.ecourts.gov.in/hcservices/

2. The Appellant / sole Accused before the trial Court standsconvicted by the learned Additional Sessions Judge, Fast TrackCourt No.II, Kancheepuram for the offences under Sections 376 and417 of IPC and sentenced to undergo R.I. for 7 years and to pay afine of Rs.2000/- in default to undergo R.I. for 6 months for theoffence under Section 376 of IPC; and to undergo R.I. for 1 yearfor the offence under Section 417 of IPC. Both the sentences wereordered 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 livingalong with her parents P.W.2, father and P.W.3, mother. Shestudied up to X Standard. Her date of birth according to SchoolCertificate is 20.05.1986. On 23.04.2003 P.W.1 came down toPerunagar Village along with her mother to her relative oneNataraja Chettiar's house for vacation. Thereafter, they visitedthe house of one Balakrishnan , who is none other than the brotherof the said Nataraja Chettiar. At that time, P.W.1's uncle oneMurugan was present and P.W.1 was talking with him. When Accusedcalled 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 auntywas not available and P.W.1 alone was in the house. During thattime, accused approached P.W.1 and both of them went out of thehouse to a varandah of a nearby school where the accused suddenlyembraced P.W.1 and kissed her. When the accused wanted her toremove her dress, P.W.1 refused. When P.W.1 resisted, the accusedthreatened her that he will commit suicide and he beat her once.Then, the Accused committed rape on her by promissing that he willmarry her. P.W.1 thereafter returned to the house of her relativeand informed P.W.4 about the incident. Thereafter, a villagepanchayat was convened and it continued till 24.04.2003 whereinthe accused promised to marry P.W.1 in a month's time. The parentsof 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 parentsof the accused, referring to their status, demanded 20 sovereignsof 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 tothe accused, the family members of the accused informed that theaccused was going to get married the bride to whom he was engagedto 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 PoliceStation and gave Ex.P.1 Complaint. (ii) On receipt of Ex.P.1 Complaint from P.W.1, P.W.8, the SubInspector of Police registered a case in Cr.No. Crime No.264 of2003 for offences under Sections 366, 376 and 417 of IPC. He tookup investigation, prepared Ex.P.12 printed FIR, inspected the placeof occurrence , prepared Ex.P.13 rough sketch and examined P.W.1and few other witnesses and recorded their statements. On11.05.2003, at about 12.00 noon, P.W.8 arrested the accused andforwarded him to judicial remand. He recovered the cloths worn bythe 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 throughcourt. P.W.1 was subjected to medical examination on 13.5.2003.P.W.6 Doctor Murugesan on examination of the victim, opined thatthe vaginal of the victim admitted two fingers without pain. Heopined that P.W.1 victim would have had sexual intercourse. Heissued Ex.P.4 certificate to that effect. Ex.P.5 Certificaterelates to the age of the victim. According to P.W.6 Doctor, thevictim was aged between 18 and 19. P.W.6 Doctor on examination ofthe accused found that he was potent and issued Ex.P.6 Certificateto that effect. P.W.5 is the Head Master of Government High Schoolwho issued School Transfer Certificate Ex.P.3 wherein the date ofbirth of the victim is mentioned as 20.05.1986. P.W.7 theInspector of Police continued the investigation, examined P.W.1 andsome other witnesses including doctor and the Head Master andrecorded their statements, collected the materials and uponcompletion of the investigation, he laid the final report againstthe accused/the appellant for offences under Sections 366, 376 and417 of IPC.4. On committal, the case was taken up for trial by the trialCourt. The trial Court framed charges as against the Accusedunder Sections 366, 376 and 417 of IPC. The appellant denied thecharges. During trial, as many as 8 witnesses were examined on theside of the prosecution and 15 documents were exhibited besides 7material objects were marked. On completion of recording ofevidence on the side of the prosecution, the Appellant wasquestioned under Section 313 of Cr.P.C. wherein he denied theevidences of the prosecution witnesses. Further, on the side ofthe defence, one Ms.Thulasi Bai [Women Constable] was examined asD.W.1 and letter dated 13.05.2003 addressed to the JudicialMagistrate, Uthiramerur was marked as Ex.D.1. Having consideredall the above, the trial Court found the Appellant guilty foroffence under Section 376 and 417 of IPC and imposed appropriatepunishments as indicated at the earlier paragraphs of thisjudgement. Hence, the present appeal. 5. The vehement contention of the appellant is that accordingto the Doctor P.W.6, the age of the victim girl was above 18 andbelow 19 and the clinical examination would further reveal thatshe has already had sexual intercourse and that she was a girl ofeasy virtues character and the present complaint has been pressedinto service after a long delay. Hence, the appellant is entitledfor the benefit of doubt.6. The learned Government Advocate [Criminal Side] would onthe other hand contend that there was no express consent given bythe victim to the appellant for sexual intercourse and hence, thetrial court was right in convicting the appellant for offencesunder Sections 376 and 417 of IPC. https://hcservices.ecourts.gov.in/hcservices/

7. I have considered the arguments advanced on either side andalso perused the available materials carefully. 8. P.W.1 is the victim. P.W.2 is the father and P.W.3 is themother. P.W.5 is the Head Master of the Government School wherethe victim studied. According to Ex.P.3 Certificate issued byP.W.5, the date of birth of P.W.1 is 20.05.1986. P.W.6 Doctorwould also state that P.W.1, the victim was aged above 18 andbelow 19 years at the time of occurrence. P.W.1 would state thatwhen she was at her relative's house, the appellant came there andinformed that she wanted to talk to her personally, for which, shedid not agree. After some time, when she was alone at her grandparents' house, the accused came there and at his request, shecame out of her grand parents house and both of them had gone tothe nearby play ground of a school where, the occurrence is saidto have taken place. In short, from the evidence of P.W.1 it isclear that the occurrence is said to have taken place out side thehouse. If she was not a consenting party to have a sexualintercourse, immediately after the appellant approached her with anintention to have sex, she would have raised hue and cry. There isno such instance in this case even according to the prosecution.From this and coupled with the evidence of the Doctor, I am of theview that the victim was a consenting party and that is the reasonwhy she had consented for sexual intercourse. From the evidence ofP.W.2, the father, P.W.3 , the mother of the victim and P.W.4, arelative of the victim P.W.1 as well as the appellant, it is clearthat both their families initially wanted to make a comprise bygiving the victim in marriage to the appellant. Later on, theelders of the family of the appellant objected on account of theircustom in regard to providing jewel for the bride. Therefore, itis very clear from the above that the delay in giving the complaintis only due to efforts taken by the families of both the appellantas well as the victimin settling the dispute amicably. When the aimwas not achieved , a complaint came to be lodged by the victim.On considering the above aspects, coupled with medical evidence, Iam of the view that P.W.1 was aged above 18 at the time ofoccurrence and she consented herself for sexual intercourse. Thetrial court has failed to look into this aspect which is verygermane to decide the case. 9. In view of the above, I hold that the prosecution hasmiserably failed to prove the charges levelled against theappellant beyond any reasonable doubt and that the trial court waswrong in convicting and sentencing the appellant for offences underSection 376 and 417 of IPC and the benefit of doubt should begiven in favour of the appellant. 10. In the result, the criminal appeal is allowed and theconviction of the appellant for the offences under Section 376 and417 of IPC and sentences imposed on him by judgement dated09.09.2004 made in S.C.No.74 of 2004 on the file of the learnedAdditional Sessions Judge, Fast Track Court No.II, Kancheepuram are https://hcservices.ecourts.gov.in/hcservices/ set aside. Bail Bond executed by the appellant shall standcancelled. Sd/Asst.Registrar/true copy/Sub Asst.Registrarkmk1.The Additional Sessions Judge, Fast Track Court No.II, Kancheepuram.2. -Do-Thro The Principal Sessions Judge, Chengalpattu.3. The Judicial Magistrate, Uthiramerur4. -do-Thro The Chief Judicial Magistrate, Chengalpattu5. The Superintendent, Central Prison, Vellore6. 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.10889Crl. A. No.1119 of 2004CK(CO)SRA(16/6/2011)