This criminal appeal has been preferred against the judgment dated 31.01.2005 passed in Special Sessions Case No.46 of 2004 by the learned First Additional Sessions Judge (PCR), Trichy.
2. The accused was charged under
Sections 417, 376,
493,506(i) I.P.C. and 3(2)(5) and 3(1)(xii) of SC/ST Act. The accused was acquitted of charge under
Section 376 I.P.C. The learned First Additional Sessions Judge (PCR), Trichy was pleased to convict the sole accused as follows:
3. The case of the prosecution is succinctly stated in the Judgment of the lower court and the same reads as follows:
(i) The Deputy Superintendent of Police, Aranthangi Sub Division has laid the final report against the accused Udaiyappan alias Chelladurai alleging that P.W.1 Rajalakshmi, who is aged 33 and who is a resident of Sowkathali compound, Santhaipettai Street, Manamelkudi village belongs to Hindu Pallar community; that the accused Udaiyappan alias Chelladurai who is a resident of near Sethu Road at Manamelkudi village belongs to Hindu, Kammalar community; that the accused Udaiyappan alias Chelladurai is running a jewellery shop under the name and style of "Gowthama Jewellary" at Manamelkudi village, that he is also conducting chits for jewels, that when P.W.1 Rajalakshmi was working under the accused in his jewellery shop for collecting the chit amounts from the customers on a monthly salary of Rs.300/-, the accused by deceit was having sexual intercourse with her in a rented house at Manamelkudi village; that due to which on 29.08.2001, P.W.1 Rajalakshmi became pregnant; that P.W.1 Rajalakshmi also informed the same to the accused Chelladurai; that on 14.06.2002 a female child was born to her; that after three months later when P.w.1 Rajalakshmi asked the accused to provide food and shelter to the child, the accused replied that the said child was not born to him through P.W.1; that in the panchayat convened, the accused admitted that the said female child is born to P.W.1 Rajalakshmi through him and paid amounts; that on 11.07.2003 when P.W.1 Rajalakshmi went to the shop of the accused Udaiyappan alias Chelladurai, he told P.W.1 Rajalakshmi to murder the said child, failing which he threatened to kill both P.W.1 Rajalakshmi and her child thereby the accused is said to have committed the offence punishable under
Sections 147,493,376,506(i) I.P.C. and 3(1)(x),
(xii) and 3(2)(v) of SC/ST Act.
(ii) Since the offence is exclusively triable by the Special Court, the learned Judicial Magistrate, Aranthangi submitted the case records to the trial Court for trial. The learned Judicial Magistrate has also issued the copies of the documents to the accused free of cost under
Section 207 Cr.P.C.
(iii) When the accused person appeared before the trial Court, on perusal of the documents and after hearing the counsel for both sides, this Court was of the opinion that there are grounds to presume that the accused might have committed the offence, a charge under
Sections 417,376,493,506(i) I.P.C. and 3(2)(v) and 3(1)(xii) of SC/ST Act have been framed, read over and explained to the accused in Tamil for which the accused denied the charges and claimed to be tried.
(iv) To substantiate the charges the prosecution has examined P.Ws.1 to 10 and marked Exs.P1 to P9. No material object has been produced in this case.
(v) Brief evidence of the prosecution witnesses is as follows: P.W.1 Rajalakshmi is the complainant in this case. Ex.P1 is the complaint. P.W.1 Rajalakshmi is residing at Sowkathali compound, Sandhaipettai, Manalmelkudi village. P.W.5 Tmt.Villayee is the mother of P.W.1 Rajalakshmi. P.W.5 Villayee is residing at Piththakadu village. She has got two daughters and two sons. P.W.6 Tmt.Ramamirtham is the elder daughter of P.W.5 Villayee. P.W.6 Ramamirtham was given in marriage at Nallur village. P.Ws.1, 5 and 6 belong to Hindu Pallar community. P.W.1 Rajalakshmi studied upto 10th standard. P.W.1 Rajalakshmi is working in Anganvadi and getting a salary of Rs.1000/- p.m. P.Ws.1,5 and 6 know the accused, who is running a jewellery shop under the name and style of "Gowtham Jewellers" at Manalmelkudi village. They also know that the accused Chelladurai belongs to Hindu Kammalar community.
(vi) During 1994, P.W.1 Rajalakshmi worked under the accused Chelladurai in his jewellery shop for collecting the chit amounts from the customers between 04.00 p.m. and 08.00 p.m. on a monthly salary of Rs.300/-. After three years, the accused Chelladurai told to P.W.1 Rajalakshmi to marry him; and given assurance to maintain her till her life time; and further told that if she did not marry him he has no life for which P.W.1 Rajalakshmi replied the accused that she belongs to Hindu Pallar community and refused to marry the accused. P.W.1 Rajalakshmi also refused to have sexual inter-course with the accused. One day P.W.1 went to the house of the accused Chelladurai believing his sweeten words and that there the accused committed rape on her against her wish forcibly. She was raped at M.S.K. Jewellary shop during 1998 on one day. The accused Chelladurai also took P.W.1 Rajalakshmi to Pillaiyarpatti and Madurai and was having sexual intercourse with her. She became pregnant. P.W.1 Rajalakshmi also told the fact to his mother P.W.5 Tmt.Villayee and her elder sister P.W.6 Tmt.Ramamirtham. A female child was born on 16.04.2004 to P.W.1 Rajalakshmi. The accused Chelladurai informed to murder the said child and also threatened P.W.1 to kill both P.W.1 and the said child, if P.W.1 Rajalakshmi did not murder the child. A panchayat was convened in the presence of Thiruvalargal Chinnappa, Anthoni and Marimuthu, in which the accused admitted that he raped P.W.1 Rajalakshmi and paid a sum of Rs.40,000/-. P.W.1 Rajalakshmi discharged the delivery expenses by paying Rs.20,000/-. On 11.07.2003, P.W.1 Rajalakshmi went to the shop of the accused to accept herself and her child to lead a happy life. The accused Chelladurai replied that the said child was not born to him and threatened to kill P.W.1 Rajalakshmi and the said child if P.W.1 did not murder the said child. Now the said child is under the care and custody of P.W.1 Rajalakshmi. P.W.6 Villayee, the mother of P.W.1 also requested the accused to lead married life with her daughter P.W.1 for which the accused refused to dose. P.W.1 Rajalakshmi preferred the complaint Ex.P1 to the police on 26.11.2003.
(vii) P.W.2 Dr.Radamani, Scientific Officer attached to the Forensic Science Department, Madras speaks to the fact that on the basis of the requisition given by the Deputy Superintendent of Police under Ex.P2 and on the basis of the office copy of the letter under Ex.P3 by the learned Judicial Magistrate, Aranthangi, the individuals S.Chelladurai alias Udaiyappan, P.W.1 Rajalakshmi and her female child Hemasree appeared before the Forensic Science Department on 02.04.2004 and from the DNA typing results, it is found that in the absence of identical twins S.Chelladurai alias Udaiyappan is the biological father of the child Hemasree and Ex.P4 is the report issued by her.
(viii) P.W.3 Thiru.G.Seetharaman, Tahsildar attached to Manalmelkudi Taluk speaks to the fact that he issued the community certificate under Ex.P5 stating that P.W.1 Rajalakshmi belongs to Hindu Pallar community on the requisition given by the Deputy Superintendent of Police.
(ix) P.W.4 Thiru.C.Veeraiyan, then Tahsildar attached to the Manalmelkudi Taluk speaks to the fact that he issued the community certificate under Ex.P6 stating that the accused Udaiyappan alias Chelladurai belongs to Hindu Kammalar community.
(x) P.W.7 Thiru.Anthonimuthu, who is a resident of Nathakadu village and who is said to be a village Head man and who conducted the panchayat speaks to the fact that he knows P.Ws.1 to 3 and the accused; that P.W.1 Rajalakshmi, her mother, father and brother reported him that the accused Chelladurai raped P.W.1 Rajalakshmi, that he convened a panchayat; that in the panchayat, the accused denied the fact of rape on P.W.1 Rajalakshmi; that the accused also denied that he is not the father of the child; that since P.W.1 Rajalakshmi worked in the shop of the accused, as per the decision of the panchayat, the accused gave Rs.50,000/- to P.W.1 Rajalakshmi.
(xi) P.W.8, Neelakandan, who is a resident of Sandhaipettai street at Manalmelkudi and who is working as a Driver speaks to the fact that himself and one Subbaiah signed in the observation mahazar Ex.P7 prepared by the police on 26.11.2003.
(xii) P.W.9, Thiru.T.Selvakannan, Inspector of Police, attached to Manalmelkudi Police Station speaks to the fact that on 26.11.2003 when he was on duty, he recorded the statement of P.W.1 Rajalakshmi and registered a case in Crime No.253 of 2003 under
Sections 417,506(i) I.P.C. and 3(1)(x) of SC/ST Act and Ex.P8 is the First Information Report. He submitted the report and the First Information Report to the concerned Court.
(xiii) P.W.10, Thiru.Chinnaiah, Deputy Superintendent of Police, Aranthangi Sub Division speaks to the fact that he took up the case for investigation, proceeded to the place of occurrence and prepared the observation mahazar and the Rough Sketch in the presence of witnesses. Ex.P7 is the Rough Sketch. Then he examined the witnesses and recorded their statements. Then he gave requisition to the Tahsildars to issue community certificates for P.W.1 and the accused. Then he examined the Tahsildars, recorded their statements and obtained the community certificates. On 26.11.2003 at about 11.00 p.m. he arrested the accused Chelladurai near Muthu Hospital at Manalmelkudi and sent him for judicial custody. On 01.04.2004, he gave requisition to the learned Judicial Magistrate to sent P.W.1 Rajalakshm and the accused Chelladurai and the female child for DNA test. Then he examined the Inspector of Police, who recorded the complaint and registered the First Information Report and recorded his statement. After completing the investigation, he laid the charge sheet on 06.05.2004.
4. On questioning under
Section 313 Cr.P.C., the accused denied the charges. No oral evidence was adduced on the side of the accused. However, Exs.D1 to D8 were marked during the cross examination of P.W.1, Rajalakshmi.
5. On appreciation of evidence and material on record, the trial Court has convicted the appellant/accused as afore stated and hence the appeal.
6. The learned counsel for the appellant/accused submits that there is absolutely no evidence that would reflect the commission of offence under
Section 493 I.P.C. by the accused. So was the case in respect of offence under Section 3(1)(xii) of the SC/ST Act. Urging the said contentions, the learned counsel for the appellant took this Court to the complaint Ex.P1. The reading of the same shows that the complainant/P.W.1, who was employed under the accused was enticed into an illicit relationship with the accused. In the course of such enticement, the accused held out, as if the accused treated P.W.1 as his wife. The accused has also given P.W.1, a sum of Rs.40,000/- at the time of birth of the child out of the illicit relationship. P.W.1 was hoping that the accused would provide home and shelter to herself and the child and that was not to be. Though Ex.P1 refers to P.W.1 belonging to Scheduled Caste, there is nothing to show that it was an account thereof that the accused had behaved in the manner he did. Even P.W.1's evidence only narrates the relationship and what happened on account thereof. There is nothing to show that the wrong alleged against the accused was committed by him on account of her belonging to the Scheduled Caste. A reading of Exs.D2 and D3, which are letters addressed by P.W.1 to the accused clearly reflects that she and the accused had shared an illicit relationship and that the same on the volition of P.W.1. Neither from the complaint nor the evidence of P.W.1 nor the reading of Exs.D2 and D3 does it appear that the accused used his position to dominate the will of P.W.1, a member of the Scheduled Caste, to exploit her sexually. This is a case of voluntary consensual sex and illicit intimacy. P.W.1 was very well aware that the accused was a married man. In Ex.D2, P.W.1 has spoken to the accused complaining of a quarrel in his family owing to her and her stating that she alone was not responsible and that they had both committed wrong. She also had spoken of a desire for her to be at least the mistress of the accused.
Section 493 I.P.C. reads as follows:
"493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.- Every man who, by deceit, causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".
7. In the circumstances above stated, it is to be mentioned that no offence under
Section 493 I.P.C. would stand made out in this case. What would remain for consideration is the offences under
Section 417 and
506(i) I.P.C. As regards this, an affidavit of P.W.1, the victim, which has been sworn to before the Notary Public on 24.09.2009 is produced. The same reveals that a compromise has been entered into between the appellant/accused and P.W.1 that the dispute between them stands settled amicably; that they are enjoying cordial relationship and that the appellant/accused is also taking care of the child, which was born through their relationship. In the circumstances, it is fit to permit and record compounding of the offences under
Section 417 and
506(i) I.P.C.
8. In the result, the appellant/accused shall on the merits of the case, stand acquitted of charges against him under
Sections 493 I.P.C. and 3(1)(xii) of SC/ST Act. The appellant/accused shall also stand acquitted of the charges under
Sections 417 and
506(i) I.P.C. as the outcome of the compounding of such offences recorded by this Court. Accordingly, this appeal is allowed. The bail bond, if any, executed by the appellant, shall stand cancelled and the fine amount, if any, paid by him, is ordered to be refunded forthwith.
smn To
1.The First Additional Sessions Judge (PCR), Trichy.
2.The Deputy Superintendent of Police, Aranthangi Sub Division, Manamelkudi Police Station, Pudukkottai District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.