M. Munusamy v. The State

IN THE HIGH COURT OF JUDICATURE AT MADRASDated :16.04.2008CoramTHE HONOURABLE MR. JUSTICE T.SUDANTHIRAMCRIMINAL REVISION CASE NO.354 OF 2006M. Munusamy... Petitioner-Vs.-The State represented bySub Inspector of Police,Kalavai Police Station,Kalavai, Arcot Taluk,Vellore District....Respondent Cr.No.159/97Revision against the judgment dated 15.03.2005 made in C.C.No.468of 2003 on the file of the District Munsif cum Judicial MagistrateCourt, Arcot and confirmed in Crl.A.No.58 of 2005 dated 01.08.2005 onthe file of the Principal Sessions Judge at Vellore, Vellore District. For Petitioner : Mr. M.V.Muralidaran For Respondent: Mr. J.C.Durairaj, Government Advocate (Crl.Side).-------J U D G M E N TThe Revision Petitioner, who is the accused in C.C.No.468 of 2003on the file of the District Munsif cum Judicial Magistrate Court,Arcot, was convicted for offence under section 417 C.P.C and sentencedto undergo simple imprisonment for one year and to pay a fine ofRs.5,000/-, in default to undergo three months simple imprisonment andthe said conviction and sentence were confirmed by the learnedPrincipal Sessions Judge, Vellore in Criminal Appeal No.58 of 2005.Aggrieved by the said conviction and sentence the petitioner haspreferred this Revision Case.2.The case of the prosecution is that PW.3, who is thedaughter of PW.1 and PW.2, got married to one Ganesan about threeyears prior to the date of giving evidence. As she was ill-treatedshe obtained a customary divorce and came to her parent's house at https://hcservices.ecourts.gov.in/hcservices/ Kalavai Koot Road. While she was going to the field, she gotacquaintance with the accused. The accused promised to marry her andhe had an affair with her. She also consented since the accusedpromised to marry her. She became pregnant and she informed to hermother. Panchayat was also held in which the accused denied hisintimacy with PW.3. PW.1, the father of PW.3 gave a complaint Ex.P1to the police. PW.7, Inspector of Police received a complaint on25.07.1997 at 8.00 p.m and registered a case in Crime No.159 of 1997for the offences under sections 417 and 493 IPC. Ex.P3 is the FirstInformation Report. On 06.08.1997 at 10.30 a.m the accused wasarrested and remanded to custody. The accused who was on bailabsconding till 14.12.1998. PW.8, the Inspector of Police took upfurther investigation from 16.01.1999. On 19.06.2001, the accused,PW.3 and her child were produced before PW.6 for DNA Test. PW.6submitted his report Ex.P2 on 26.06.2001 concluding that the accusedis the biological father of the child. PW.9, Inspector of Police whotook up further investigation in this case, after completing theinvestigation filed the final report for offence under section 417IPC.3.After considering the evidence, both the Courts below haveconvicted the accused.4.The learned counsel for the petitioner submitted that PW.3,the victim is a grown up married lady and she knows the consequencesof relationship between a man and woman. In the complaint Ex.P1,given by PW.1, the father of PW.3, it was not stated that PW.3 wasalready a married lady and she had obtained customary divorce from herhusband. While giving complaint deliberately this fact was suppressed.The learned counsel for the petitioner further submitted thatadmittedly now, she was already a married lady before havingacquaintance with the accused. Though it is now claimed that she waspromised to marry by the accused, absolutely no documentary orsupporting evidence has been let in by the prosecution that PW.3 hadobtained divorce from her husband. In the absence of proof ofdivorce, the version of PW.3 that the accused promised to marry hershould not have been accepted by the Courts. The consent of PW.3 wasnot on the basis of the promise said to have been made by the accused.Learned counsel for the petitioner further submitted that theingredients of the offence under section 417 IPC are not made out andalso relied on the decision of the Hon'ble Supreme Court reported in"2003(4) Supreme Court Cases in Uday ..vs.. State of Karnataka". Thelearned counsel for the petitioner further submitted that there was adelay of nine months in giving complaint to the police.5.The Learned Government Advocate submitted that subsequent tothe complaint given by PW.1, the victim girl PW.3 had given birth to achild and PW.6 also given a certificate Ex.P2 stating that the accusedis the biological father of the child. As such the affair between https://hcservices.ecourts.gov.in/hcservices/ the accused and PW.3 is proved and PW.3 had accepted and she hadconsented only on the basis of the promise made by the accused.Though, PW.3 was married, she obtained divorce and she had returned tothe parental home and she was living separately. Only under suchcircumstances, the accused had approached her and made a promise andshe had consented. The refusal to marry PW.3 by the accused, amountsto an offence of cheating.6.This Court considered the submissions made by both partiesand perused the evidence of witnesses and other records.7.It is stated in the complaint Ex.P1 given by PW.1, thefather of the victim girl PW.3, that the accused was promising tomarry PW.3 had affair with her; but though in the Panchayat heaccepted to marry, he refused to marry her. At the same time, it isspecifically mentioned in the complaint that PW.3 was an "unmarriedlady". Now, in the chief examination, it is stated by PW.1 and PW.3that customary divorce has been obtained by PW.3. But PW.2, themother had only stated that after the marriage, she had returned tothe parental home due to some family disputes. PW.2 had not spokenabout the divorce. According to PW.1, marriage between PW.3 and herhusband Ganesan took place about five or six years back and accordingto PW.2, it was prior to ten years and according to PW.3, it was priorto three years. PW.4 and PW.5 are the villagers. They also statedthat PW.3 was married to another person, but she had returned to herparental house. But they had not stated that there had been adivorce. Except the oral version of PW.1 and PW.3 that the divorcehad taken place between PW.3 and her husband, there is no clinchingevidence to support that version. It is doubtful whether themarriage between PW.3 and her husband Ganesan is subsisting or or not.8.Though PW.3 says that she got acquaintance with the accusedand the accused promised to marry her, she had not made it clearwhether the accused knows about her earlier marriage and about herdivorce and she also not stated anything about whether she informedthe accused about the earlier marriage and divorce. Anyhow accordingto PW.3, being already a married lady and her age being 29 at the timeof giving evidence and as such being aged 23 years at the time ofoccurrence, she must be knowing the consequences of the affair withthe accused. She admits that she had been a consenting party. Butonly the fact in issue is that whether she had consented because heaccepted to marry. She had not revealed her affair with the accused toanyone till she became pregnant by eight months. In crossexamination, she says that while she was pregnant by eight months andwhile she was lying with the accused, her senior paternal uncle hadseen them. It appears that only after she became pregnant by eightmonths, the others have come to know about the occurrence. Undersuch circumstances, it becomes doubtful whether she had affair withthe accused only on the promise made by the accused or not. This https://hcservices.ecourts.gov.in/hcservices/ Court is unable to conclude in favour of the prosecution. At everystage, the benefit should be in favour of the accused.9.It is observed in the Judgment reported in "2003(4) SupremeCourt Cases in Uday ..vs.. State of Karnataka" at paragraph 25 asfollows:"25. There is yet another difficulty whichfaces the prosecution in this case. In a case ofthis nature two conditions must be fulfilled forthe application of Section 90 IPC. Firstly, itmust be shown that the consent was given under amisconception of fact. Secondly, it must be provedthat the person who obtained the consent knew, orhad reason to believe that the consent was given inconsequence of such misconception. We have seriousdoubts that the promise to marry induced theprosecutrix to consent to having sexual intercoursewith the appellant. She knew, as we have observedearlier, that her marriage with the appellant wasdifficult on account of caste considerations. Theproposal was bound to meet with stiff oppositionfrom members of both families. These wastherefore a distinct possibility, of which she wasclearly conscious, that the marriage may not takeplace at all despite the promise of the appellant.The question still remains whether even if it wereso, the appellant knew, or had reason to believe,that the prosecutrix had consented to having sexualintercourse with him only as a consequence of herbelief, based on his promise, that they will getmarried in due course. There is hardly anyevidence to prove this fact. On the contrary, thecircumstances of the case tend to support theconclusion that that appellant had reason tobelieve that the consent given by the prosecutrixwas the result of their deep love for each other.It is not disputed that they were deeply in love.It is also not without significance that theprosecutrix stealthily went out with the appellantto a lonely place at 12 o' clock in the night. Itusually happens in such cases, when two youngpersons are madly in love, that they promise toeach other several times that come what may, theywill get married. As stated by the prosecutrix theappellant also made such a promise on more than oneoccasion. In such circumstances, the promise losesall significance, particularly when they areovercome with emotions and passion and findthemselves in situations and circumstances where https://hcservices.ecourts.gov.in/hcservices/ they, in a weak moment, succumb to the temptationof having sexual relationship. This is whatappears to have happened in this case as well, andthe prosecutrix willingly consented to havingsexual intercourse with the appellant with whom shewas deeply in love, not because he promised tomarry her, but because she also desired it. Inthese circumstances, it would be very difficult toimpute to the appellant knowledge that theprosecutrix had consented in consequence of amisconception of fact arising from his promise. Inany event, it was not possible for the appellant toknow what was in the mind of the prosecutrix whenshe consented, because there were more reasons thanone for her to consent."Though, it is established in this case, there was an intimacy betweenthe accused and PW.3 and subsequently, PW.3 has also given birth to achild and the natural biological relationship of the accused as fatheralso being established; but at the same time, it cannot be said thatthe prosecution established the fact that the accused had affair withPW.3 only after making the promise that he would marry her. Hence,the benefit of doubt is given to the accused. Though there is noevidence to establish beyond reasonable doubt that the petitioner madea false promise to marry, accused is prima-facie accountable fordamages under civil law. 10.With the above observation, the conviction and sentenceimposed on the petitioner is set aside and the Revision Petition isallowed. Sd/Asst.Registrar/true copy/Sub Asst.Registrarmra https://hcservices.ecourts.gov.in/hcservices/ To1.The District Munsif cum Judicial Magistrate Court, Arcot2.The Principal Sessions Judge at Vellore, Vellore District.3.Sub Inspector of Police,Kalavai Police Station,Kalavai, Arcot Taluk,Vellore District.4. The Public Prosecutor,High Court,Madras+1cc to Mr.M.V.Muralidaran, Advocate Sr 21448JSK (CO)km/13.5.Crl.R.C.No.354 OF 2006