Challenging the order of conviction and sentence passed by the learned Sessions Judge Mahila Court, Madurai in S.C.No.592/05 dated 27.09.2006, the present criminal appeal has been filed.
2. There are totally three accused in S.C.No. 592 of 2005, on the file of the Sessions Judge Mahila Court, Madurai. The first accused is the appellant herein. A-1 stood charged for an offence under
Sections 376 and 417 I.P.C. A-2 and A-3 stood charged for an offence under
Section 4 of Dowry Prohibition Act. The trial court convicted the appellant/accused-1 under
Section 417 I.P.C and sentenced him to undergo one year rigorous imprisonment and imposed a fine of Rs.10,000/-, in default to undergo three months rigorous imprisonment. The trial court also acquitted A-2 and A-3 from the charge under
Section 4 of Dowry Prohibition Act. Now, challenging the above conviction and sentence, the appellant/A-1 is before this court with this appeal.
3.The case of the prosecution in brief is as follows:
i)P.W.1 is the victim in this case. Both P.W.1 and A-1 belong to the same village. The appellant promised P.W.1 to marry her and under the guise of marrying her, by deception, he had sexual intercourse with P.W.1 several times, consequently, she became pregnant. The family members of P.W.1 asked all the accused to arrange for a marriage between P.W.1 and A-1. At that time, A-2 and A-3, who are the parents of A-1 demanded dowry, A-1 also refused to marry her. Under the said circumstances, P.W.1 has filed a complaint before the respondent police. P.W.11-Head Constable, attached to Usilampatti All Women Police Station, on receipt of the complaint, registered a case in Cr.No.3 of 2005 under
Sections 376,417,109 r/w
Section 4 of Dowry Prohibition Act and prepared the printed copy of F.I.R (Ex.P.8) and sent the same to P.W.14/Inspector of Police for investigation. Then, P.W.14 conducted the investigation and visited the place of occurrence and prepared Observation Mahazar (Ex.P.5) and Rough Sketch (Ex.P.13) and recorded the statements of witnesses and arrested the accused. Then, he sent P.W.1 for medical examination to P.W.13, Dr.Seethalakshmi, a doctor working in Usilampatti Government Hospital. P.W.13 examined P.W.1, and found that she is seven months pregnant and also issued a certificate Ex.P.12. Then, P.W.10, Dr.Ramalatha, working in Usilampatti Government Hospital also examined A-1 and given a certificate Ex.P.7 stating that he was potent. Subsequently, a premature baby was born to P.W.1. P.W.9-Dr.Sankar, working in Usilampatti Government Hospital, conducted post mortem to the baby. P.W.12-Joint Director of Forensic Science Department (Research and Development), Chennai conducted DNA Test and given a report (Ex.P.11), stating that A-1 is the biological father of the baby. Then, P.W.14 examined other witnesses and after completion of investigation, he filed the final report against the accused under
Sections 376,417,109 I.P.C r/w
Section 4 of Dowry Prohibition Act.
4.Considering the above materials, the trial Court framed charges, as detailed in the second paragraph of this order and the accused denied the same. In order to prove its case, the prosecution has examined 14 witnesses and exhibited 13 documents.
5.Out of the witnesses examined, P.W.1 is the victim in this case. According to her, A-1 promised to marry her and by deception, he had intercourse with her, thereafter, A-1 refused to marry her. A-2 and A-3 demanded dowry for getting married to A-1. P.W.2 is the father of P.W.1 has also spoken about the complaint given by P.W.1. P.W.3, a Scientific Assistant, working in the Forensic Science Department, Madurai, conducted the smear test for P.W.1. P.W.4-mother of P.W.1 also spoke about the occurrence and also demand of dowry by A-2 and A-3. P.W.5 is the witness to the Observation Mahazar. P.W.6, a Head Constable in the Usilampatti Taluk police station, took the accused to hospital for medical examination. P.W.7- a Constable in the respondent Police Station, took P.W.1 for medical examination. P.W.8-Sub Inspector of Police, attached to Usilampatti Taluk Police Station sent the accused and the victim girl for DNA test and produced the materials for chemical examination. P.W.9 is the doctor, who conducted post mortem to the baby and also taken the tissues for DNA test. P.W.10 is the doctor, who examined the accused. P.W.11 is the Head Constable, who registered the complaint. P.W.12 is the Assistant Director of Forensic Science Department, Chennai, who conducted DNA test of the baby and gave an opinion that the appellant is the biological father of the baby. P.W.13 is the doctor, who examined the P.W.1. P.W.14, after investigation, filed a final report against the accused.
6.When the above incriminating materials were put to the accused under
Section 313 Cr.P.C, he denied the same. However, the accused neither examined any evidence nor marked any documents. Considering the above materials, the trial court convicted the appellant and acquitted the other accused as mentioned in paragraph No.2 of the judgment.
7.Earlier, when the matter was taken up for hearing, there is no representation for the appellant. Under the said circumstances, Ms.K.Mahalakshmi, learned counsel was appointed as Legal Aid counsel. I have heard the learned Legal Aid counsel appearing for the appellant and Mr.C.Mayilvahana Rajendran, learned Additional Public Prosecutor appearing for the respondent and perused the records carefully.
8.The learned counsel appearing for the appellant would contend that P.W.1, the victim is the only witness to the occurrence and her evidence is not corroborated by any other witness. The father and mother of P.W.1 did not spoke about the attitude of the accused. The trial court, disbelieving the evidence of P.W.1, partly and acquitted the appellant under
Section 376 I.P.C. Further, absolutely, there is no evidence on record to show that the appellant had intercourse with P.W.1 on deception and hence, according to her, the trial court ought not to have convicted the appellant under
Section 417 I.P.C.
9.Per Contra, the learned Additional Public Prosecutor appearing for the respondent submitted that the evidence of P.W.1 is that only on deception that he will marry her, the appellant had intercoursed with P.W.1 and after that, she became pregnant and she also gave birth to a premature baby. DNA test also shows that the appellant is the biological father of the baby, born to P.W.1. The evidence of father and mother of P.W.1 also clearly, shows that only on the false promise of marrying her, the appellant had sexual intercourse with her. Hence, there is no reason to interfere with the well- considered judgment of the trial court.
10.I have considered the rival submissions.
11.From the perusal of the records, it could be seen that even though the appellant was charged with for an offence under Sections 376 and 417 I.P.C, the trial court acquitted him from the offence under
Section 376 I.P.C, since it is a consensual sex. Further, P.W.1 is the victim in this case. Her evidence is that both the appellant and P.W.1 are belong to the same village. Earlier, the appellant promised to marry her and only with a false promise, he had intercourse with the victim girl and she also got pregnant. After getting pregnancy, when the victim requested the appellant to marry her, he refused to marry. In the above circumstances, she has given a complaint. Thereafter, she gave birth to a premature baby and DNA test was also conducted, which proved positive and in which, it was concluded that the appellant is the biological father of the baby. Her evidence is also corroborated by her father/P.W.2 and mother/P.W.4. From the above materials, it could be seen that the appellant had sexual intercourse with P.W.1 and due to which, she also gave birth to a premature baby. On considering the evidence, it can be seen that only on false promise that the appellant would marry P.W.1, he had sexual intercourse with P.W.1. But for the deception, practised by the appellant, P.W.1 would not have been accepted for the sexual intercourse. Considering all the circumstances, the court below has rightly come to a conclusion that the appellant has committed an offence under
Section 417 I.P.C and also convicted him.
12.In the above circumstances, I find that there is no perversity or illegality in the order passed by the court below and there is no reason to interfere with the well-considered judgment of the court below. Hence, I am of the considered view that the prosecution has proved the offence and rightly convicted the appellant under
Section 417 I.P.C.
13.Sofar as the sentence is concerned, considering the fact that the appellant is a poor man and he has a family to maintain and the victim girl also already got married, considering all the mitigating circumstances, the period already undergone by the appellant may be treated as sentence.
14.At this stage, the learned Additional Public Prosecutor represented that the appellant has been in jail for 90 days.
15.In fine, this appeal is partly allowed. The conviction under
Section 417 I.P.C is confirmed and the period already undergone by the appellant is treated as sentence.
16.The High Court Legal Services Committee is directed to pay the fees to the learned Legal Aid Counsel.
To
1.The Sessions Judge Mahila Court, Madurai.
2.The Inspector of Police All Women Police Station, Usilampatti Police Station, Usilampatti Taluk, Madurai District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
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