BAIL SLIPThe v. State rep byInspector of Police,All Women Police StationB-2, R.S.Puram Police Station

BAIL SLIPThe appellant herein [Viz.] Basheer Ahamed, was directed to bereleased on bail by the order of this Court dated 30.4.2003 and made inCrl.M.P.No.4531/2003 in Crl.Appeal 742/03.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:3-7-2007CORAMTHE HON'BLE MR.JUSTICE R. REGUPATHICRL.APPEAL NO.742 OF 2003Basheer Ahamed.... AppellantvsState rep byInspector of Police,All Women Police StationB-2, R.S.Puram Police Station...RespondentCriminal Appeal filed under Sec.374 Cr.P.C against the Judgment madein S.C.No.392 of 2002 dated 22.4.2003 on the file of learned SessionsJudge (Magalir Neethimandram), Coimbatore.For appellant:Mr.K.R. Sankaran forM/s C.D. JohnsonFor respondent :Mr.Hasan Mohd.JinnahGovt.Advocate (Crl.Side)JUDGMENTThe appellant is accused of committing offence punishable underSec.376 IPC. On conclusion of the trial, the appellant was convicted bythe learned Sessions Judge (Magalir Neethimandram), Coimbatore for thesaid offence and was sentenced to undergo 7 years Rigorous Imprisonmentwith fine of Rs.20,000/-, in default, to undergo simple imprisonment for 1year and out of fine amount of Rs.20,000/-, Rs.10,000/- was ordered to begiven to the victim girl as compensation. Aggrieved against the convictionand sentence, the present appeal has been preferred before this Court. https://hcservices.ecourts.gov.in/hcservices/

2.The prosecution case in a nutshell is as below:P.W.1, the victim girl, aged about 22 years at the time of occurrence,was friendly with the appellant for 10 years. On 28.6.1997 at 2.00 p.m,when the parents of the victim girl were away from the residence, theappellant/accused entered into the residence of the victim girl and closedthe doors. Though the victim objected for the same, she was pushed down onthe cot. The accused overpowered the victim girl by closing her mouth withhis hands, she could not escape from his clutches and therefore, theappellant has committed rape without her consent.3. It is the further case of the prosecution that at the time when theappellant went out from her residence, P.W.4 and P.W.5, who wereneighbours, have seen the accused and when they questioned the victimgirl, she divulged the act committed by the accused. After a few weeks,when P.Ws 4 and 5 questioned the victim when she was sitting on adepressed mood, she told them that her menses skipped and she may bepregnant. Thereafter, P.Ws.4 and 5 informed this to theappellant/accused, for which, the appellant replied that this must not beinformed to his parents and requested P.Ws.4 and 5 to help her foraborting the pregnancy. However, the appellant promised P.Ws.4 and 5 thathe would marry the girl. Accepting such promise, on 6.8.97, the victim wastaken to a private hospital and on examination, her pregnancy wasconfirmed. The appellant requested the Medical Officer to terminate herpregnancy, for which, the victim was asked to come again on 8.8.97. On8.8.97, the victim, accompanied by P.Ws.4 and 5 and the accused, went tothe hospital and her pregnancy was terminated. On seeing the victim in adepressed mood, P.Ws.2 and 3, mother and father of the victim, questionedher, and the victim girl/P.W.1 divulged every thing to them. Thereafter,P.Ws.2 and 3 questioned the appellant/accused, for which, the accusedpromised them that he would marry their daughter at a later stage. 4. Subsequently during 1997, 1998 and 1999 whenever the appellant wasenquired about this, he was evading. However, on 2.8.2000, the appellantfixed betrothal with some other girl and therefore on the same day, it wasreported to Zamath, as both the victim girl and the appellant belong toMuslim community. When an enquiry was conducted by the President andMembers of Zamath, the appellant had accepted the facts and promised themthat he would marry the victim. Thereafter, since the appellant refusedto comply with such promise, the members of Zamath advised P.W.1 toapproach the police. Accordingly, a complaint, Ex.P.1 dated 9.11.2000 hasbeen given to the police, resulting in registration of the case inCr.No.45 of 2000, for the offence punishable under Sec.376 IPC. Onconclusion of the investigation, final report has been filed for theoffence punishable under Sec.417 IPC. However, case has been committed bythe learned Magistrate to the Court of Sessions for the offence punishableunder Sec.376 IPC and charges were framed for the offence under Sec.376IPC and trial was taken up. https://hcservices.ecourts.gov.in/hcservices/

5. The victim girl was examined as P.W.1 and she has narrated what hadhappened to her. She has deposed that on 28.6.1997 at about 2.00 p.m, theappellant/accused had trespassed into her residence and committed forciblerape on her with a promise that he would marry her. When the appellantcame out from her residence, he was seen by P.Ws.4 and 5. When theyquestioned PW-1 she informed them about the act committed by theappellant. After a few weeks, when P.Ws 4 and 5 questioned her when shewas sitting in a depressed mood, she told them that her menses skipped andshe may be pregnant. Thereafter, P.Ws.4 and 5 informed this to theappellant/accused, for which, the appellant replied that this must not beinformed to his parents and requested P.Ws.4 and 5 to help her in abortingthe pregnancy. However, the appellant promised P.Ws.4 and 5 that he wouldmarry the girl. Accepting such promise, on 6.8.97, the victim was taken toa private hospital and on examination, her pregnancy was confirmed. Theappellant requested the Medical Officer to terminate her pregnancy, forwhich, P.W.1 was asked to come again on 8.8.97. On 8.8.97, the victimaccompanied by P.Ws.4 and 5 and the accused, went to the hospital and herpregnancy was terminated. On seeing the victim in a broken mood, P.Ws.2and 3, parents of PW-1 questioned her, and PW-1 narrated the entirehappenings. Thereafter, P.Ws.2 and 3 questioned the appellant/accused, forwhich, he replied that he would marry the victim after some time. However,on 2.8.2000, the appellant fixed betrothal with some other girl andtherefore on the same day, it was reported to Zamath. When an enquiry wasconducted by the Members of Zamath, the appellant had accepted the factsand promised them that he would marry the victim but subsequently, refusedto do so, resulting in filing of the complaint.6. P.Ws.2 and 3, mother and father of P.W.1 corroborated the evidenceof P.W.1. P.Ws.4 and 5 also have corroborated the evidence of P.W.1, tothe extent that she informed them about the act committed by the appellanton 28.6.1997 and also subsequent abortion in a private clinic. P.W.12, whois sister of P.W.1 has also corroborated the evidence of P.Ws.1 to 3.P.Ws.6, 7, 8 and 13 are the Members of Zamath, who corroborated thetestimony of P.W.1 regarding the enquiry conducted by them and also withregard to the promise made by the appellant. P.W.9 is a doctor in aprivate clinic who did not support the case of the prosecution. However,he was not treated hostile. P.W.10 is the Medical Officer, who has givencertificate Ex.P.2 dated 30.11.2000 regarding the potency of theappellant. P.W.11 is also a Medical Officer who examined the victim andhas given his opinion Ex.P.3, and opined that the victim girl has beensubjected to sex. P.W.14 is the Investigating Officer, who has spokenabout the examination of the witnesses and filing of final report.7. The learned trial Judge, after perusal of evidence of P.Ws.1 to 14and Exs.1 to 5, questioned the appellant with regard to the incriminatingcircumstances appearing in evidence against him and the appellant deniedthe commission of the offence. Neither defence witnesses nor exhibits weremarked. https://hcservices.ecourts.gov.in/hcservices/

8. The learned trial Judge, on perusal of the materials available onrecord and after considering the oral and documentary evidence, convictedthe appellant as aforementioned. 9. The learned counsel for the appellant submits that the age of thevictim is 22 years and the appellant is 23 years. It is the positive caseof P.W.1 that the appellant was friendly with her and even 3 months priorto the occurrence, such an attempt has been made and she came to know thatsuch friendship is not love but the appellant really wanted to have sexwith her. Under such circumstances, on that day i.e. on 28.6.97, when theappellant entered into the residence, she would have shouted, whereby shecould have attracted P.Ws.4 and 5, the neighbours who were staying next toher residence. On perusal of her such admission in the cross examination,her consent is apparent. Moreover, even on the day, she has not resisted,which shows her consent. Therefore, she being a major, aged about 22years, the act committed by the appellant/accused cannot be categorisedfor an offence punishable under Sec. 376 IPC. Moreover, the act committedby the accused was not at all informed to her parents, but it was divulgedto them only after abortion i.e., on 8.8.97. Even thereafter, it was notinformed to Zamath, but a complaint has been given to the Zamatah only on2.8.2000.10. The learned counsel for the appellant submits that there is delayof more than 3 years in lodging the complaint before the Zamath andpolice. Such delay must be taken serious note of. When the consent of thevictim girl/P.W.1 is substantiated, the evidence of P.Ws.2 and 3 viz., theparents of the victim girl and P.W.12, sister of P.W.1 and P.Ws.4 and 5the neighbours may not assume any relevance. The evidence of Presidentand Members of Zamath P.Ws.6 to 8 and 13 also may not be taken as a vitalpiece of evidence for the progress of prosecution, since they are onlypanchayatadars, three years subsequent to the act committed by theappellant. Though it is the case of these witnesses that documentarymaterials were available for conducting such enquiry and a report has alsobeen prepared, no such document has been filed before this Court. Further,performing abortion by P.W.9 to P.W.1 has not been substantiated byprosecution. Even in the cross examination, P.W.9 has denied terminationof pregnancy and abortion to P.W.1. Further, during the course ofexamination, P.W.1 she has specifically stated that a different name viz.,Parveen has been given to the doctor, who performed abortion and furtherasserted that such fact has been informed to Investigating Officer.However, the investigating officer contradicted that no such informationhas been divulged by P.Ws 1 and P.W.2.11. The evidence of P.Ws.10 and 11 may not be of any use. P.W.11examined P.W.1 after 3 years of the offence and her present version maynot be of any use at all for the progress of the prosecution. 12. The learned counsel for the appellant submits that even acceptingthe evidence as such put forth by the prosecution, the offence punishable https://hcservices.ecourts.gov.in/hcservices/ under Sec.376 IPC has not been made out and the appellant is entitled foracquittal.13. Per contra, the learned Government Advocate submits that evidenceof P.W.1 would substantiate the commission of offence and she haspositively stated that on the date of occurrence, she has been forciblyraped by the appellant. The appellant, after coming from the house ofP.W.1 on 28.6.1997, was witnessed by P.Ws 4 and 5 and they have alsodeposed regarding the abortion to P.W.1. P.W.2 and 3, parents of P.W.1have also corroborated the evidence of P.W.1.14. The learned Government Advocate has further contended that P.Ws 6to 8 and 13 are independent witnesses, who conducted Zamath and theirevidence cannot be brushed aside lightly. The other witnesses includingthe medical witnesses corroborate the version of P.w.1 and therefore, theoffence punishable under Sec.376 IPC is substantiated.15. I have perused the materials available on record and heard thesubmissions made on either side. The evidence of victim may have to betaken for consideration and she will be a star witness in a case of rape.Admittedly, P.W.1, who is aged about 22, was friendly with the accused,who is a neighbour, belong to same community. It is her own admission thatthe appellant made an attempt like the present one, three months prior tothe date of occurrence. She has positively confirmed that the appellantwas not in love with her, but his intention is to have sex with her. Undersuch circumstances, when the accused entered into the residence of thevictim girl/P.W.1 on 28.6.1997, the victim would have prevented theappellant effectively. The neighbours viz., P.Ws4 and 5 were availablenext to her residence. If P.W.1 is not a willing partner, she would haveraised hue and cry, which would have attracted P.Ws.4 and 5, thereby shecould have prevented the accused from advancing towards her with suchintention. But on the face of the materials available on record,especially from her evidence, it appears that she is a consenting partnerfor the act committed by the appellant/accused. Even at the time ofabortion, her parents viz., P.Ws.2 and 3 were not informed. The complaintgiven to Zamath was very much later, after three years. The promise of theaccused that he would marry the victim girl has been stated as explanationfor not giving the complaint to the Zamath, but the delay of three yearsis too longer a period and such an explanation cannot be accepted. Evenwith regard to the performance of the betrothal for the appellant/accusedthere are contradictory evidence. It has been positively stated that aftercoming to know about the performance of betrothal for the appellant, acomplaint has been given to Zamath. But on a perusal of the evidence ofP.Ws.6 to 8 and 13, no such performance of betrothal was spoken by them.However, it is their positive evidence that the appellant agreed to marryher. Though it has been stated by the members of Zamath that theappellant/accused accepted for marriage, such facts were not informed tothe investigating officer at the time of their examination duringinvestigation. Such vital contradiction creates suspicion in the case ofthe prosecution. The evidence of P.W.1 do not in any way improve the case https://hcservices.ecourts.gov.in/hcservices/ of the prosecution. Though Private medical officer denied the performanceof such abortion, he has not been treated as hostile.16. The evidence of Government Medical Officer for examination of thevictim as well as the accused do not in any way improve the case of theprosecution.17. Again coming to evidence of P.W.1, it appears that she is aconsenting party and when she is major. When such materials are available,offence punishable under Sec.376 IPC cannot be made out. Therefore, I amof the considered view that the offence punishable under Sec.376 IPC isnot made out and therefore the appellant is acquitted.18. In a similar case, after acquittal of the accused, the SupremeCourt expressed an opinion, which is squarely applicable for the presentcase on hand. In 2005 SCC (Crl.) 253 (Deelip Singh vs State of Bihar),the Apex Court has held as follows:"With this verdict, the appellant no doubt extricateshimself from the clutches of the penal law by getting thebenefit of doubt on charge levelled against him. But wecannot ignore the reprehensible conduct of the appellant,who by promising to marry the victim woman, persuaded herto have sexual relations and caused pregnancy. The act ofthe accued left behind her a trail of misery, ignominy andtrauma. The only solace is that she married subsequently.We are informed that the female child born out of theillicit relationship is now living with her married motherand she is about 14 years old now. Though there is noevidence to establish beyond reasonable doubt that theappellant made a false or fraudulent promise to marry,there can be no denial of the fact that the appellant didcommit breach of the promise to marry, for which theaccused is prima facie accountable for damages under civillaw".19. It is submitted by the Government Advocate that since the victimgirl has subsequently got married 4 years ago and is settled in life,compensation awarded by the trial court may be received by P.W.2, motherof the victim girl.20. The learned counsel for the appellant, on instructions, submitsthat the petitioner is willing to deposit Rs.10,000/- more, apart from thefine already imposed.21. There are materials to substantiate that P.W.1 is a consentingparty, however, such consent was obtained by the accused by promise ofmarriage, and such act will amount to breach of promise. https://hcservices.ecourts.gov.in/hcservices/

22. Therefore, the appellant is directed to deposit Rs.10,000/- beforethe trial court, apart from Rs.20,000/- already deposited. The entireamount of Rs.30,000/- is directed to be given as compensation to PW-1. Ifthe amount of Rs.10,000/- had been already withdrawn by P.W.1, thebalance amount, if not, the entire amount of Rs.30,000/- be given toP.W.1. P.W.2 is entitled to withdraw the same on behalf of P.W.1.23. With this observation the appeal is disposed of. Time fordepositing the amount is six weeks.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.srTo1. The Sessions Judge(Magalir Neethimandram), Coimbatore2. The Judicial Magistrate, No.I, Coimbatore3. -do- through the Chief Judicial Magistrate, Coimbatore.4. The Public Prosecutor, Madras5. The Inspector, All Women Police Station B-2, R.S.Puram Police Station6. The Superintendent, Central Prison, Coimbatore+ 1 CC To Mr. C.D.Johnson, Advocate SR NO.40319Crl.Appeal No.742 of 2003ssv[co]gp/9.8.