BailThe v. State

BailThe Appellant/Accused namely Panchapathi was directed to be released onbail as per order of this Honourable court in Crl.M.P.No.5166 of 03 in Crl.A.NO.868 of 03.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 08-08-2007CORAM THE HONOURABLE MR. JUSTICE R.REGUPATHICriminal Appeal No. 868 of 2003 Panchapathi... Appellant/AccusedvsState rep. by itsInspector of Police, Kanchi Taluk Police Station, Kancheepuram District. ... Respondent/ComplantPrayer:- Criminal Appeal filed against the judgment passed by the learnedAdditional District and Sessions Judge-cum-Fast Track Court No.II,Kancheepuram, Chingelpet District, in S.C.NO.119 of 2002 dated 13.05.2003. For Appellant: Mr.R.Karthigeyan for Mr.S.M.Loganathan. For Respondent: Mr.Hasan Mohamed Jinnah Government Advocate (Crl. Side) J U D G M E N TThe appellant/accused was convicted for the offences punishable U/s.366 and 376 IPC. and sentenced to undergo seven years rigorousimprisonment and also to pay a fine of Rs.1,000/-, in default, to undergothree months rigorous imprisonment for the offence under Section 366 IPC.and for the offence U/s. 376 IPC., he was sentenced to seven yearsrigorous imprisonment and to pay a fine of Rs.1000/-, in default, toundergo three months rigorous imprisonment, with a further direction torun the sentences concurrently by the learned Sessions Judge, Fast TrackCourt No.II, Kancheepuram, Chingelpet District, in S.C.NO.119 of 2002.Aggrieved against the said conviction and sentence, the present appeal hasbeen filed by the appellant/accused before this court. https://hcservices.ecourts.gov.in/hcservices/

The case of the prosecution is as follows:-P.W.3 is the victim in the case and she was 16 years old at the timeof occurrence, viz., 23.11.2000. P.W.1 is the grandfather and P.W.2 isthe mother of P.W.

P.W.3 was working as a maid servant at the residenceof the appellant temporarily. Even earlier, the appellant was friendlywith P.W.3. On 23.11.2000, the appellant proposed to go to Hydrabad, where he was working as a Lift Operator. On the request of the appellant,P.W.3 went to a nearby temple and there, they have planned to go to Hyderabad. They have proceeded to Kancheepuram and thereafter, reachedHyderabad by bus. The appellant and P.W.3 stayed at the residence of hisfriend. P.W.3 requested the friend of the appellant to perform hermarriage with the appellant, for which, the appellant and his friendagreed. At that time, it is alleged that the appellant persuaded to havesex with her and it was declined by P.W.3. The appellant alleged to havepromised her that it is he who is going to marry her and therefore, theycan have such sex. Thereafter, the appellant compelled her, removed herdress and committed the offence in spite of P.W.3 raising voice.

On conclusion of the trial, the accused was questioned under Section 313 of the Cr.P.C. on the incriminating materials made availableduring the course of the trial. The appellant denied the complicity ofthe commission of the offence and pleaded innocence.

The learned trial Judge, relying on both the oral and documentarymaterials produced by the prosecution, convicted and sentenced the accusedas aforementioned.

The learned counsel for the appellant submits at the outset thaton perusal of the ocular testimony of P.Ws.1 to 3, it is consistent thatthe age of P.W.3 is 16. But the prosecution has made all attempts tosubstantiate that P.W.3 is below 16 years. To substantiate such fact,P.W.8, the Head Master of the School, where P.W.3 was studying, wasexamined and age certificate has been marked, wherein it has been statedthat her date of birth is 17.05.1986, so as to say that her age is14 ½ years. It is further submitted that such evidence and agecertificate furnished by the Headmaster should not be taken as asubstantiate piece of evidence. P.W.8, in his evidence, has stated thatfor such entry of the date of birth, the birth certificate was notproduced at that time. It is further stated that it is the customarypractice that an approximate date at the time of admission will be givenand such date will be entered in the Registry.

Per contra, the learned Government Advocate (Crl. Side) submitsthat the certificate issued by the School must be given preference thanthe ocular testimony of the evidence of prosecution witnesses and themedical evidence. Though P.W.3 voluntarily accompanied with the appellantto Hyderabad, it is the appellant, who compelled P.W.3 under the guise ofperforming marriage and was having sex with P.W.3. This act of promiseand compulsion will amount to an offence punishable under Section 376 IPC.While relying on the school certificate, P.W.3 must be construed as aminor, who is aged about 14 ½ years. Under such circumstances, eventhough there is a consent given by the victim girl, the same cannot beconstrued as a consent in the eye of law and therefore, as per thedefinition under Section 376 IPC. the offence is proved beyond reasonabledoubt and thereby the appellant is liable to be convicted. It is furthersubmitted that when the offence of rape, under such circumstances, issubstantiated and if it is accepted that P.W.3 is a minor girl, kidnappingsuch minor girl to Hyderabad will also substantiate the offence under Section 366 IPC., as she happened to be a minor. Consent given by a minorcannot be treated as a consent in the eye of law even to substantiate theoffence under Section 366 IPC. https://hcservices.ecourts.gov.in/hcservices/

I have perused the materials available on record and heard thesubmissions made. Before even assessing the materials available tosubstantiate the offence alleged, it is absolutely necessary to ascertainthe age of P.W.3. It is the admitted evidence of P.Ws.1 to 3 that she isaged about 16 years at the time of occurrence, viz., 23.11.2000. Thisevidence of P.Ws.1 to 3 has been corroborated by P.W.10, the medicalofficer, who after radiological examination, stated emphatically that theage of P.W.3 is between 16 and 17. Such positive evidence of P.Ws.1 to 3and medical evidence cannot be brushed aside easily. To substitute suchevidence that P.W.3 is below 16, some more stronger piece of material mustbe made available by the prosecution. Ex.P-2 is the certificate issued bythe School wherein it has been stated that the date of birth of P.W.3 is17.05.1986. If this date of birth is supported by the birth certificate, certainly the certificate issued by the School Authorities can be taken asa conclusive proof. On the contrary, it is the evidence of P.W.8 that itis not supported by any materials including birth certificate. However, positively stated that not only for P.W.3, it is the practice for theschool that such date of births are entered approximately. This evidenceof P.W.8 has been confirmed by the mother of P.W.3, viz., P.W.2, who, inher evidence, has stated that such date of birth has been given byapproximate. Therefore, I am of the considered view that the oculartestimony of P.Ws.1 to 3 corroborated by the medical officer could occupya preferential position than a school certificate issued on imaginarybasis. When the age of the victim has been concluded as 16, then as perSection 376 IPC., the consent of the girl may be taken into considerationto substantiate an offence of rape.

As per the evidence of P.W.3, she was in love with the appellantand known each other for two years prior to the date of occurrence. Moreover, both of them during this period have decided to marry. However, it is only the family members of the appellant opposed for suchsuggestion. It is only on account of that resistance of the familymembers, it appears that P.W.3 decided to go along with the appellant. Onperusal of her evidence, her voluntary act of joining with him to go to Hyderabad could be visible. After reaching Hyderabad, a discussion aboutthe marriage has been done with the appellant and his friend. They havepromised that such a marriage will be performed. Under suchcircumstances, though it has been alleged that on compulsion, theappellant had sex with her, her subsequent conduct in co-operating withhim for the next one week would go to show that even at the firstincident, P.W.3 was a willing partner for such act. Under suchcircumstances, when there is consent on the part of P.W.3, who is a major, it is impossible to come to the conclusion that the act of the appellantcan be categorised as an offence of rape. When there are materials tosubstantiate that P.W.3 willingly travelled along with the appellant to Hyderabad, the act committed by the appellant, under such circumstances, cannot be categorised as kidnapping. Therefore, I am of the consideredview that both the offences are not made out.

In a case reported in 2005 Supreme Court Cases (Cri) 253 (DeelipSingh -VS- State of Bihar), it has been read as follows:- https://hcservices.ecourts.gov.in/hcservices/ "With this verdict, the appellant no doubtextricates himself from the clutches of the penal lawby getting the benefit of doubt on charge levelledagainst him. But, we cannot ignore the reprehensibleconduct of the appellant, who by promising to marry thevictim woman, persuaded her to have sexual relationsand caused pregnancy. The act of the accused leftbehind her a trail of misery, ignominy and trauma. Theonly solace is that she married subsequently. We areinformed that the female child born out of the illicitrelationship is now living with her married mother andshe is about 14 years of 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 appellantdid commit breach of the promise to marry, for whichthe accused is prima facie accountable for damagesunder civil law. "

On perusal of the facts of the present case, though the case ofthe appellant is that he had never made any promise to marry, it is theevidence of the prosecutrix that she accompanied the appellant onlybelieving the promise made by the appellant to marry her. Such promisehas been betrayed by the appellant, for which, he is prima facieaccountable for damages under Civil Law. When this aspect was underdiscussion, the learned counsel for the appellant submits that the victimgirl got married during 2003 and settled with two children. The appellantalso got married. In the above circumstances, the counsel for theappellant, on instructions, made an offer of Rs.50,000/-. Since thevictim is already settled in life, P.W.2, the mother of the victim, wassummoned before this Court today and she has willingly received the saidamount of Rs.50,000/- on behalf of the victim. The receipt of payment ofRs.50,000/- by the mother of the victim is recorded.