The Petitioner/A1 has focused the instant Criminal RevisionPetition as against the Judgment dated 12.12.2012 in C.A.No.2 of2012 passed by the Learned 3rd Additional District Judge, Tiruchirapalliin affirming the judgment dated 12.12.2011 in C.C.No.100 of 2011 passed by the Learned Judicial Magistrate, Manapparai.
2. Earlier, the Learned Judicial Magistrate, Manapparai, in thejudgment dated 12.12.2011 in C.C.No.100 of 2011 on an appreciationof entire oral and documentary evidence on record has come to aresultant conclusion that the offence under Section 506(i) of IndianPenal Code against the Revision Petitioner/A1, A2 and A3 have notbeen proved and acquitted them by granting the benefit of doubt intheir favour. However, in respect of offence Under Section 417 ofIndian Penal Code, the trial Court found the Revision Petitioner/A1guilty and convicted him by awarding a sentence of one year simpleimprisonment and further directed the Revision Petitioner/A1 to pay asum of Rs.1,00,000/- as compensation to P.W.1 (victim) under Section357(3) of Criminal Procedure Code. Further, in default on payment ofaforesaid compensation amount by the Revision Petitioner/A1, hasdirected him to undergo a simple default sentence for a period of threemonths and also, directed him to pay the aforesaid compensationamount of Rs.1,00,000/- to P.W.1 in five maximum instalments withina period of six months from the date of passing of the judgment.
3. Being dissatisfied with the judgment dated 12.12.2011 inC.C.No.100 of 2011 passed by the Learned Judicial Magistrate,Manapparai, the Revision Petitioner/A1 has an aggrieved personpreferred the Criminal Appeal No.2 of 2012 on the file of the Learned3rd Additional District Judge, Trichirappalli.
4. The Learned 3rd Additional District Judge, Trichirappalli (theFirst Appellate Court) in the judgment dated 12.12.2012 in CriminalAppeal No.2 of 2012 by dismissing the Appeal. However, the FirstAppellate Court in the judgment has observed that it has confirmed theorder of conviction and sentence imposed by the Learned JudicialMagistrate for the offence under Section 417 of Indian Penal Code,thereby, directing the Revision Petitioner/A1 to undergo one yearRigorous imprisonment (in reality the trial Court has only awarded oneyear simple imprisonment) and also confirmed the award ofcompensation of Rs.1,00,000/- imposed by the trial Court. That apart,the Revision Petitioner/A1 was directed by the First Appellate Court toremit the entire compensation of Rs.1,00,000/- within one month fromthe date of judgment in C.A.No.2 of 2012 dated 12.12.2012 and alsodirected him to surrender before the trial Court to undergo the rest ofthe punishment period.
5. The Revision Petitioner's Contentions:
The Learned Counsel for the Revision Petitioner/A1 urges before this Court that the judgment of the trial Court in C.C.No.100 of 2011dated 12.12.2011 as well as the judgment of the First Appellate Courtin C.A.No.2 of 2012 dated 12.12.2012 are against Law andprobabilities of the case.
6. According to the Learned Counsel for the RevisionPetitioner/A1, the First Appellate Court as well as the trial Court havenot taken into consideration the evidence of prosecution witnesses(which are contradictory in nature) in proper and real perspective andwhich has resulted in serious miscarriage of justice.
7. Advancing his arguments, the Learned Counsel for theRevision Petitioner/A1 contends that the First Appellate Court as wellas the trial Court should not have believed the version, and anecdoteof the prosecution, inasmuch as the story of the prosecution has beenclearly contradicted by the prosecution witnesses.
8. The Learned Counsel for the Revision Petitioner/A1 projectsan argument that the complainant lodged the complaint with aninordinate and unreasonable delay and the same was not properlyexplained.
9. Apart from the above, the Learned Counsel for the RevisionPetitioner/A1 submits that there is a flaw in proving the evidence ofthe medical examination and that the medical evidence is a put upone.
10. Lastly, the Learned Counsel for the Revision Petitioner/A1strenuously contends that both the Courts below had convicted theRevision Petitioner/A1 on flimsy reasons.
11. The Petitioner's Citations:
The Learned Counsel for the Revision Petitioner/A1 cites theorder of this Court dated 01.04.2012 in Criminal O.P.1273 of2011 and M.P.Nos.1 & 2 of 2011 between K.U.Prabhu Raj V.State by Sub Inspector of Police, A.W.P.S Tambaram andAnother, whereby and whereunder in paragraph Nos.15 to 22, it isobserved and laid down as follows:
'15. Before going into the judgments relied onby the learned counsel on either side, let us have alook into Section 415 I.P.C.,
'415 Cheating Whoever, by deceiving any person, fraudulentlyor dishonestly induces the person so deceived to deliver any property to any person, or to consentthat any person shall retain any property, orintentionally induces the person so deceived to door omit to do anything which he would not do omit ifhe were not so deceived, and which act or omissioncauses or is likely to cause damage or harm to thatperson in body, mind, reputation or property, is saidto cheat.'
16. A cursory perusal of the above provisionwould make it clear that there are atleast threeessential ingredients constituting an offence ofcheating which should be made out from thematerials available on record. They are as follows:-
'(1) Deception of any person;
(2) Fraudulently or dishonestly inducing thatperson
(i) To deliver any property to any person or;
(ii) To consent that any person shall retain anyproperty, or and
(3) Intentionally inducing that person to do oromit to do anything which he would not do or omit ifhe were not so deceived, and which act or omissioncauses or is likely to cause damage or harm to thatperson in body, mind, reputation or property.'
17. The learned counsel for the secondrespondent would further submit that the offenceinvolved in this case falls within the ambit of thethird limb of Section 415 I.P.C as enumerated above. According to the learned counsel, but for thepromise made by the petitioner, the daughter of thesecond respondent would have married someoneelse and settled down in her life. Thus, according tohim, the petitioner has committed a clear offence ofcheating. In my considered opinion, it is not so. Ashas been held by the division Bench of the CalcuttaHigh Court in Abhoy Pradhan V. State of W.B. Case(cited supra), mere promise to marry and later onwithdrawing the said promise will not amount to anoffence of cheating at all. On such false promise tomarry, the person to whom such promise was madeshould have done or omitted to do something that hewould not done or omitted to do but for thedeception. In this case, absolutely, there are nomaterials available on record to show that becauseof the promise made by the petitioner, the daughterof the second respondent has done anything oromitted to do something which has the tendency tocause damage or harm to the body or mind orreputation or property of the daughter of the secondrespondent. In the absence of the same, the entireallegations found in the records, in my consideredopinion, would not make out an offence underSection 417 or 420 I.P.C., at all.
18. In G.V.Rao V. L.H.V Prasad and others'scase, (cited supra), the Hon'ble Supreme Court hasheld that there should have been inducement, either dishonestly or fraudulently, and because of suchinducement, the person induced should have done oromitted to do something which she would not haveotherwise done or omitted to do. As I have alreadystated, in this case, absolutely there is no suchmaterial on record to satisfy the above requirement.
19. Now turning back to the judgment in GopuSeshasayee V. State case (cited supra), this Courthas reiterated that mere deception is not a criminaloffence. Mere dishonestly is also not a criminaloffence. This Court has held that there are twoelements in the offence of cheating, namelydeception or dishonest intention to do or omit to dosomething. This judgment also reaffirms the viewwhich I have taken herein before.
20. Now coming to the judgments of this Courtin Ravichandran caseand Chitra case (cited supra),in those cases, acting on the false promise made bythe accused, the victim allowed the accused toexploit her sexually which resulted in pregnancy.Thereafter, the accused declined to marry. In thosecirumstances, this Court held that the victim girl hadallowed her to be exploited sexually because of thefalse promise made by the accused. But in theinstant case, the daughter of the second respondentdid not do anything out of inducement made by thepetitioner to marry her. In such view of the matter,the said judgments are not at all applicable to the facts of the present case.
21. Now coming to the maintainability of thispetition, it is ofcourse, true that when there isalternative remedy of filing a petition available forthe petitioner, this Court keep restrained anddeclined to invoke the power of this Court underSection 482 Cr.P.C., but there is no absolute bar toinvoke the inherent power of this Court (vide thejudgment of the Hon'ble Supreme Court in PunjabState Warehousing Corporation Ltd., V. DurgajiTraders (2012(2) MLJ Crl.200(SC). In a rare case,when it is made clear that the prosecution isabsolutely baseless, it is for this Court to invoke itsinherent jurisdiction. In this case, as I have alreadystated, absolutely there is no material available onrecord for allowing the prosecution to go further,since neither an offence under Section 417 I.P.C.,nor an offence under Section 420 I.P.C., is made out.Thus, in my considered opinion, as per the law laiddown by the Hon'ble Supreme Court, in State ofHaryana V.Bhajan Lal AIR 1992 SC 604 the presentcase is liable to be quashed.
22. In the result, the Criminal Original Petitionis allowed and the case in C.C.No.937 of 2010 on thefile of the learned Judicial Magistrate No.1,Tambaram, is quashed.'
12. He also relies on the order dated 15.07.2013 in RevisionPetition No.490 of 2010 between Sri Kumar V. The State ofKarnataka By Hanur Police, Whereby and whereunder in paragraphs4 to 7, it is observed as follows:-
'4. Heard on both side and perused the revisionpapers. The following point will arise for my consideration:
a. Whether the courts below are legally correct inconvicting and sentencing the petitioner for the offencepunishable under Section 417 of IPC
5. A reading of the complaint Ex.P.7 dated 27.12.2003,specifies that the actual incident had taken place 20 daysprior to the date of the complaint. There is no acceptableexplanation for the inordinate delay.
6. Two days later from the date of lodging thecomplaint, the victim was subjected to medicalexamination on 29.12.2003. The wound certificate ismarked as Ex.P.9. A perusal of the wound certificate do notspecify that the petitioner had sexual intercourse with thecomplainant. Further, the author of the wound certificate –the doctor is not examined. Without considering theseaspects of the matter, both the Courts below committed anillegality in holding that the prosecution has proved thecharges levelled against the petitioner for the offencepunishable under Section 417 of IPC.
7. In the instant case, victim is examined as P.W.10.Her sister is examined as P.W.1 and brother-in-law as P.W.
2. The evidence of Pws.10 to 12 do not corroborate witheach other. On the other hand, there are inconsistencies inthe evidence of these three important witnesses. Again, theevidence of these three witnesses do not specify that thepetitioner has sexual intercourse with the victim – PW 10.The medical 6 Sri Kumar Vs. The State of Karnataka on 15July, 2013 Indian Kanoon –http://indiankanoon.org/doc/157314476/2 evidence onrecord and oral testimony of these witnesses again do notcorroborate.'
13. He seeks in aid of the decision of the Hon'ble Supreme Court RamJag and others V. The State of U.P., AIR 1974 SC 606: (1974) 3 SCR 9 :(1974) 4 SCC 201 : (1974) Cri L.J. SC 479, wherein it is observed asfollows:
'fir – Delay – Condonation of – Long delay castsdoubt about the prosecution case but it can be condoned ifsufficiently explained.
It is true that witnesses cannot be called upon toexplain every hour's delay and a commonsense view has tobe taken in ascertaining whether the first InformationReport was lodged after an undue delay so as to affordenough scope for manipulating evidence. Whether thedelay is so long as to throw a cloud of suspicion on theseeds of the prosecution case must depend upon a varietyof factors which would vary from case to case. Even a longdelay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relieshave no motive for implicating the accused. On the otherhand, prompt filing of the report is not an unmistakableguarantee of the truthfulness of the version of theprosecution.
In the instant case the importance of the questionwhether there was delay in filing the first InformationReport is of a different order. The case of the appellants isthat the occurrence must have taken place under the coverof darkness, that is, long after the time at which it is allegedto have taken place and that is why the first InformationReport could not be lodged earliedr than at 12.30a.m. Thisdefence is well founded and the High Court was clearly inerror in discarding it.
The truth of the matter is that the occurrence hadtaken place long after 4 p.m. and witnesses were hard put toexplaining why on their own theory they took more than 8hours to cover a distance of 4 miles. They offered a fancifulexplanation which was rightly rejected by the SessionsCourt and was wrongly accepted by the High Court. '
14. Respondent's Submissions:
The Learned Government Advocate (Criminal side) submits thatthe trial Court, on an appreciation of oral evidence of prosecutionwitnesses and on consideration of documents marked, has come to aconsequent conclusion that the Revision Petitioner/A1 was guilty inrespect of an offence under Section 417 of Indian Penal Code and imposed a punishment of one year simple imprisonment and further, itdirected the Revision Petitioner/A1 to pay a compensation of Rs.1,00,000/- to P.W.1 (victim) and an appeal being preferred by theRevision Petitioner/A1 in C.A.No.2 of 2012 has confirmed theconviction and sentence imposed by the trial Court in respect of theRevision Petitioner/A1 and dismissed the appeal, which need not beinterfered with by this Court at this distant point of time.
15. The Resume of Evidence of prosecution witnesses:
At the out set, it is to be pointed out by this Court that P.W.1(Victim – Dumb person) was examined before the trial Court with theassistance of one Anitha (Teacher), (brought from the deaf school,Ponmalaippatti). It is the evidence of P.W.1 that she was not doingany job and residing in her house and further, she knew the accusedand the incident had occurred two years before (prior the date ofdeposition before the trial Court i.e. 16.11.2008) and the accusedcommitted wrongful act and when no one person was present atabout 10.00 a.m. and also at about 10.00 p.m. in the night, theRevision Petitioner/A1 came to her house and committed an offence onher. Further, P.W.1 (victim) in her evidence had deposed that theRevision Petitioner/A1 told her that he would marry her and also that,pulled her hand and that, she was four months pregnant andcommitted wrong and the Revision Petitioner/A1 committed theoffence on her and because of his act, she became four monthspregnant and further, he informed her that he would marry her andcommitted the offence on her and left the place and thereafter, he hadnot spoken to her.
16. It is the further evidence of P.W.1 (complainant) that shecame to the police station and narrated the incident and the RevisionPetitioner/A1 informed that he would marry her in the temple andlatter, he resiled from his words and that, a child was born and thechild died three days after its birth. Added further, P.W.1 had statedthat prior to the acquaintance, the Revision Petitioner/A1 informed herthat he would marry her and the incident had occurred because of thepromise of marriage made by him.
17. Apart from the above, P.W.1 proceeds to state in herevidence that she along with her brother written a complaint andhanded over the same to the police station and the police enquired usto what happened and the complaint shown to her, was the one lodgedby her which was Ex.P1, in which the signature found belong to her.
18. P.W.1 (victim, in her cross-examination) had stated thatshe informed about the incident viz., the offence/wrong committed bythe Revision Petitioner/A1, to her mother and her mother went to theRevision Petitioner/A1 house and enquired about the same and whenthe Revision Petitioner/A1 committed the offence on her, she had notraised noise to protect and also to leave her.
19. Further, it is the evidence of P.W.1 that at the time oflodging complaint at the police station, she was pregnant and in the 4thmonth, she gave a complaint and she informed her brother about theincident and her brother beaten her to say the truth and at that time,she narrated the incident. Moreover, she had informed her motheronly after four months of the incident and she informed her mother,she was not getting monthly period also and because of her ill health,she went to the hospital and there, the doctor informed her that shewas four months pregnant and the complaint was written at the policestation at their instance/behest.
20. P.W.2 (mother of P.W.1/victim) in her evidence has statedthat the Revision Petitioner/A1 is her brother son who own a cell phone shop near her house and he used to repair the cell phone and handedover the same to the nearby persons and he followed her daughter inwhichever directions she went and also used to come to her house andsince he is her relative, she had not reprimanded him. P.W.2 in herevidence further deposed that two years before when her daughterP.W.1 went for cattle grazing for the purpose of cutting the grass, theRevision Petitioner/A1 dragged her daughter by pulling her hand to ano man land and caused hardship to her and took her to the tank bedand committed the offence by spoiling her. Further, her daughter (P.W.1) had not informed her nothing and was not keeping good health fromthat day onwards. Also that, she was four months pregnant. It is theevidence of P.W.2 that P.W.1 gave birth to one male and female childand they died on the next day of their birth and that, the children wereborn to her daughter at Manapparai Government Hospital.
21. P.W.3 (brother of P.W.1) in his evidence had stated that hissister (P.W.1) went to the field for cutting the grass at 'Suraikkadu'and the Revision Petitioner/A1 by compulsion spoiled her and becauseof that, she became pregnant and later, they went to the police stationand gave a complaint and he does not properly remember the date ofoffence viz., on 15.11.2008. Also, it is the evidence of P.W.3 that on the date of occurrence, he went to the garden and the RevisionPetitioner/A1 used to come to his house and to the Kadu and in thewomen police station, he along with his sister gave a petition in writingon narration of the incident by her sister, the complaint was written inthe police station.
22. P.W.4 (Palaniammal) in her evidence had deposed that shewas informed about the date of occurrence on 15.11.2008 and sincethe Revision Petitioner/A1 and P.W.1 committed the wrongful act, P.W.1 became pregnant and she was informed like that and that, out of thetwo children born to P.W.1 (victim) one girl child died after birth.
23. It is the evidence of P.W.5 that on the village side, he own'sa garden and in the said garden, he had raised bottle gourd(Suraikkai) in three Acres and that, P.W.1 was cutting the grass on13.05.2008 and the Revision Petitioner/A1 came to his garden andafter seeing P.W.1, without talking to her went in a different way viz.,to the place where P.W.1 was there and he witnessed all thehappenings and the Revision Petitioner/A1 pulled the hand of P.W.1and after hugging, he took her to the tank bed and after seeing this,he informed the Revision Petitioner's/A1's father and on 15.11.2008,the ladies after indulging in group talking and informed him that P.W.1was pregnant and called him to come along with them to ask about thesame and thereafter, he informed the parents of the RevisionPetitioner/A1.
24. P.W.6 (Azhagammal) in her evidence had stated that sheknew the P.W.1 (victim) and the Revision Petitioner/A1 and also usedto come to P.W.1's house frequently and a woman dressed in hockeyshirt came at about 10.00 a.m. in the morning and prepared a planand after making enquiry, asked her signature in Ex.P2 observationMahazar and she affixed her signature in the house of P.W.1.
25. P.W.7 (Shanmugalakshmi/S.I of Police presently atKattuputhur Police Station) in her evidence had stated that during theyear 2008, she was in charge of the Manapparai police station, Lawbranch, as Sub Inspector of Police, and at the Manapparai Womenpolice station on 16.12.2008 one Panchavarnam (P.W.1) ofChokkampatti Village came to the police station and presented acomplaint which was received by her and registered a case in CrimeNo. 10 of 2008 under Sections 417, 420 and 506(i) of Indian PenalCode and the First Information Report registered by her was Ex.P3 and later, she went to the occurrence place on 16.12.2008 at about 17.30hours and examined the witnesses Chinnammal, Azhagammal etc.,and prepared observation Mahazar Ex.P.2, Plan/Sketch Ex.P4 andrecording the statement of P.W.1 (Panchavarnam), P.W.2(Chinnathal), P.W.3 (Kannuchamy), P.W.4 (Palaniammal), P.W.5(Panneerselvam), P.W.6 (Azhagammal), P.W.7 (Chinnammal) and on16.07.2008 (in reality 16.12.2008) at about 17.45 hours, she arrestedChinnammal (Mother of the Revision Petitioner/A1) near Chokkampattibus stop (after her assigning reasons) and brought her to the policestation and handed over her to the para at 18.30 hours and sent herto the judicial remand at about 18.30 hours.
26. Further, the Revision Petitioner/A1 and A2 (father of A1)Vallaisamy surrendered before the Court and after completing theinvestigation on 17.07.2009, she laid the charge sheet against theRevision Petitioner/A1, Vallaisamy A2 and Chinnammal A3 underSections 417, 420, 506(i) of Indian Penal Code.
27. P.W.7 also added in her evidence that on 18.12.2008, shesent P.W.1 for medical examination (through Court) and obtained thereport and on 30.12.2009, she sent a letter to medically examined the Revision Petitioner/A1 and after obtaining the report, finally laid thecharge sheet and the Accident Register copy of P.W.1 was marked asEx.P5 and Ex.P6 was the proof for sending the Revision Petitioner/A1for medical examination.
It comes to be known that the P.W.7 (then S.I of Police andsubsequently retired Inspector of Police) laid the charge sheet in CrimeNo.10 of 2008 on the file of the Manapparai, All Women Police Stationagainst the Revision Petitioner/A1, A2 and A3 under Sections 417, 420and 506(i) of Indian Penal Code. The gist of the charge sheet is thatthe complainant and accused (A1 to A3) are residing at ChokkampattiVillage at Manapparai Taluk within the police limits of Valanadu PoliceStation and witness No.1 Panchavarnam and A1 Kandasamy (RevisionPetitioner) loved each other and later, he spoke luring words and madeher believe and the Revision Petitioner/A1 on 01.08.2008 had sexualintercourse in the house of witness No.1 and later, she informed abouther pregnancy to him, for which he refused to marry her. Further, on15.11.2008 morning witness No.1 Panchavarnam and other witnessesChinnathal and Kannusamy went to the Revision Petitioner's/A1'shouse and narrated the happening of the occurrence and when they asked for marrying the complainant – Panchavarnam by the RevisionPetitioner/A1, A1 to A3 joined together and they threatened thecomplainant Panchavarnam and others by uttering of leave the placeimmediately, otherwise, they have murdered and for this fashion, theyintimidated them. Therefore, the conduct of the Revision Petitioner/A1was an offence under Sections 417, 420 and 506(i) of Indian PenalCode, likewise, the conduct of A2 and A3 was an offence under Section506(i) of Indian Penal Code.
29. The trial Court based on the allegations and materials onrecord, framed charges against the Revision Petitioner/A1 underSections 417 and 506(i) of Indian Penal Code. Likewise, the A2 and A3(father and mother of the Revision Petitioner/A1) were charged by thetrial Court under Section 506(i) of Indian Penal Code.
30. A perusal of the Ex.P1 complaint of P.W.1 (Panchavarnam)(although undated but received at Manapparai P.S CSR No. 179 of2008 and taken on file by the Manapparai All Women Police Station inCrime No.10 of 2008 on 16.12.2011) shows that she was aged about20 years and residing along with her parents (address furnished in thecomplaint) and because of their family relationship, with her relative Kandasamy S/o. Vellaisamy (belonging to her village) was known toher very well and under these circumstances, the said Kandasamy(Revision Petitioner/A1) used to visit her house frequently and as such,she got acquainted with him. Further, she had stated that the RevisionPetitioner/A1 informed her every now and then that he would like tomarry her, for which, she replied that his parents should come and askwith her parents as per customs for marrying her.
31. Added further, in Ex.P1 Complaint, P.W.1 went on to addthat in these circumstances, approximately four months before, whenshe was alone in her house at that time A1 came to her house andimmediately, she informed him that her parents were not available inthe house and therefore, she asked him to leave the placeimmediately. But, the Revision Petitioner/A1 spoke luring words to theeffect that ' he would marry her' and by uttering luring words, he oncompulsion spoiled her and since the Revision Petitioner/A1 hadintercourse with her, she was presently four months pregnant and sheinformed about her pregnancy and asked the Revision Petitioner/A1 onnumerous occasions to marry her but he refused. When her motherhas informed the parents of the Revision Petitioner/A1, viz.,Vallaisamy A2 (father), and Chinnammal A3 (mother), they refusedto marry her with the Revision Petitioner/A1. Later, lastly, on15.11.2008, when the village important persons called the RevisionPetitioner/A1 and his parents, they refused to come and further, theywere continuously intimidating her parents that they would murderedthem.
32. The complainant (P.W.1/victim) deposed in her evidence(recorded on 16.08.2011) categorically stated that the incident hadoccurred two years before and the accused A1 to A3 committed theoffence/wrong and the Revision Petitioner/A1 committed thewrong /offence at about 10.00 a.m., in the morning and 10.00 p.m inthe night, when there was no one in her house. Further, she hadstated that the Revision Petitioner/A1 informed her that he wouldmarry her and pulled her hand and because of the wrong/offencecommitted by him, she became pregnant for four months and aftercommitting the wrong /offence (rape) on her, the RevisionPetitioner/A1 had not spoken to her and the child born to her diedthree days after its birth. Further, she had stated that the complaintshown to her was the one viz., Ex.P1 lodged by her in which she hadaffixed her signature and when the police enquired her, she narrated the happening of the occurrence/incident.
33. As a matter of fact, P.W.1 in her evidence had deposed thatshe was not going for any job and residing in the house and only whenno one was in the house at about 10.00 a.m. and at about 10.00 p.m.,the Revision Petitioner/A1 raped her.
34. Indeed, the Ex.P1 complaint lodged by P.W.1 (victim) wastyped in Tamil and P.W.1 had affixed her signature in Tamil. Eventhough, P.W.1 (victim – dumb person) had not specifically mentionedthe date of occurrence in her deposition but in her chief examinationshe had candidly stated that she was residing in the house and theincident had occurred two years before and that, the accused/A1 to A3committed the wrongful act and when no one was present at about10.00 a.m. in the morning and at about 10.00 p.m. in the night, theRevision Petitioner/A1 came and committed the wrongful act, yet inher complaint Ex.P1, P.W.1 (victim) had narrated the happening of theincident and also that, she spoke about act of rape on compulsionbeing committed on her by the Revision Petitioner/A1, because ofwhich, she became pregnant and subsequently, the Revision Petitionerrefused to marry her and as such, the non mentioning of the date of occurrence by P.W.1 in her evidence does not affect the case of theprosecution as opined by this Court. To put it precisely P.W.1/Complainant (victim) had categorically stated in her evidence thatbecause of the rape committed on her by P.W.1, she was four monthspregnant. Added further, notwithstanding, P.W.1 in her evidence hadstated that she along with her brother gave a written complaint and onperusal of the Ex.P1 complaint, though the contents were in Tamiltyping yet the minor discrepancy in this regard was not fatal to theprosecution case in the considered opinion of this Court. Furthermore,she had stated that police had enquired with her and Ex.P1 (complaintshown to her before the trial Court) she had admitted that hersignature was found in Ex.P1.
35. In her cross-examination, P.W.1 had clearly stated that whenshe was pregnant, she lodged a complaint at the police station andfurther, within four months she gave the complaint and added further,in her cross-examination she had stated that she was notremembering presently the date of occurrence.
36. It is the evidence of P.W.2 (mother of P.W.1/victim) thattwo years before, when P.W.1 went for cattle grazing (viz., for cutting the grass for feeding the cattle normally) in no man place, the RevisionPetitioner/A1 dragged/pulled her daughter's (P.W.1's) hand andcaused hardship by committed rape on her at the tank bed side.
37. P.W.3 (brother of P.W.1 and son of P.W.2) had also deposedthat the Revision Petitioner/A1 put cloth on the mouth of his sisterP.W.1, when she went for cutting the grass in the field at Suraikkadu,the Revision petitioner/A1 by force committed rape on her andbecause of that, she became four months pregnant etc.,
38. P.W.4 (relative of P.W.1/complainant and the RevisionPetitioner/A1) in her evidence has stated that he came to know thatP.W.1 was pregnant and the incident had taken place on 15.11.2008and that, since because of the offence/wrong committed by theRevision Petitioner/A1 and P.W.1, the P.W.1 became pregnant.
39. P.W.5 in his evidence had stated that on 13.05.2008 villageside, he owns a garden measuring an extent of 3 acres in which hehad raised vegetable bottle gourd (Suraikkai) and when P.W.1 wascutting the grass, the Revision petitioner/A1 came to his garden andafter seeing Panchavarnam (P.W.1) without talking to her, came in the different path/way reached the place of P.W.1 and he hugged and tookher to the tank bed.
40. P.W.7 (the then S.I of Police of Manapparai All Women PoliceStation) had deposed in her evidence that she knows the physicaldisabilities of P.W.1 (i.e. she cannot hear properly and cannot speakproperly through her mouth) but P.W.1 said that if spoken loudly, shewould understand.
41. The aforesaid evidence of P.W.2 to P.W.5 as to the mannerof happening of occurrence/incident and the date of occurrence arecontradictory and exaggerated in nature as opined by this Court. Assuch, this Court discards their evidence as to the date and manner ofoccurrence. In fact, their deposition as to the date and manner of theoccurrence are not helpful/useful for the prosecution. As such, thisCourt is not accepting the same since they are unworthy of credence.
42. At this stage a mere running of the eye of the contents ofEx.P5 Accident Register (in respect of P.W.1/victim aged about 24years) shows that the doctor had examined P.W.1 on 19.12.2008 atabout 10.45 a.m. stating that she was carrying 18 weeks fetus. In fact, Ex.P5 the Accident Register was marked through S.I of Police(I.O). Also that, the Revision Petitioner/A1 was radiologically examinedby the Doctor/Police Surgeon (professor and HOD of Forensic Medicine,K A P Viswanatham Government Medical College, Periyamilaguparai,Tiruchirapalli - 1) who issued a Ex.P6 age certificate to the RevisionPetitioner/A1 stating that he was aged about 21 years.
43. Furthermore, in Ex.P6 (Age Certificate) the doctor hadmentioned in the certificate in respect of the Revision Petitioner/A1that he was of the opinion that the individual was examined and therewas nothing to suggest that he was not capable of taking part insexual intercourse.
44. In view of Ex.P5 Accident Register and Ex.P6 (AgeCertificate), it cannot be said there is flaw in proving the evidence ofmedical examination. Also, the plea taken on behalf of the RevisionPetitioner/A1 that the medical evidence is a put up one in the presentcase is outrightly rejected by this Court.
45. Coming to the evidence of prosecution witnesses in respectof the offence under Section 506(i) of Indian Penal Code in respect of A1 to A3, it is to be pointed out by this Court that they had not thewitnesses, are not deposed that A1 to A3 had intimidated them.Therefore, rightly the trial Court had came to the conclusion that theoffence under Section 506(i) of Indian Penal Code imposed on theRevision petitioner/A1, A2 and A3 was not proved and acquitted them.
46. At this juncture, this Court very pertinently points out thatSection 417 of the Indian Penal Code deals with punishment forcheating. The salient ingredients for an offence under Section 417 ofIndian Penal Code are as follows:-
(a) Accused fraudulently or dishonestlyinduced complainant.
(b) To deliver some property either to accusedor to some other person.
(c) To consent that accused or some otherperson will retain the property.
(d) Accused intentionally induced complainantto do a thing which he/she would not do or to omitto do a thing which he/she would not have omittedto have done if not so deceived.
(e) Such act has caused or was likely to causesome damage or harm in his body, mind reputationor the property.
Section 417 of IPC provides punishment for simplecheating, elements of which are deceit and inducement.There must be some evidence of fraudulently dishonestlyintention at the time of commission of the offence.
47. Dealing with the aspect of delay in lodging of the FirstInformation Report by the Complainant (P.W.1), in the instant case onhand, this Court makes a significant mention that delay in lodging firstInformation Report by itself cannot be a ground to doubt about theprosecution case. It is to be borne in mind that Law has notprescribed any time limit for filing of the First Information Report.Therefore, a delayed FIR is not an illegal one as opined by this Court.After all, a Court below is to seek an explanation for the delay and testthe veracity, truthfulness and plausibility of the reasons mentionedtherefor. However, if the delay in question is satisfactory explained,then, the said delay cannot be put against the prosecution.
48. In this connection, this Court aptly points out the decisionRamdev and others V. Sate of Rajasthan, 2003 CRI.L.J at page1680, wherein it is observed and held that 'where evidence of directeye-witness are reliable and trustworthy, mere delay in filing FIRwould be no ground to discard the entire prosecution case.
49. Also, this Court worth recollects and recalls the decision of the Hon'ble Supreme Court Tulshidas Kanolkar Vs. State of Goa,(2003) 8 Supreme Court Cases 590 and at special pages 592 &593, wherein at paragraph 6, it is observed as follows:-
' Non-examination of some persons per sedoes not corrode the vitality of the prosecutionversion, particularly when the prosecutrix has,notwithstanding her mental deficiencies, withstoodincisive cross- examination and pointed to theappellant as the perpetrator of the crime. The plea ofconsent is too shallow to even need detailed analysisor consideration. A mentally challenged girl cannotlegally give a consent which would necessarilyinvolve understanding of the effect of such consent.It has to be a conscious and voluntary act. There is agulf of difference between consent and submission.Every consent involves a submission but theconverse does not follow, and mere act ofsubmission does not involve consent. An act ofhelpless resignation in the face of inevitablecompulsion, quiescence, non-resistance or passivegiving-in when the faculty is either clouded by fearor vitiated by duress or impaired due to mentalretardation or deficiency cannot be considered to beconsent as understood in law. For constitutingconsent, there must be exercise of intelligence basedon the knowledge of the significance and the moraleffect of the act. A girl whose mental faculties are undeveloped, cannot be said in law, to have sufferedsexual intercourses with consent.'
50. It is to be remembered ordinarily that only after giving it acool, calm and collective thought on arrival of elders in the family, thata complaint of sexual offence is lodged. Also, one cannot ignore a vitalfact that where the allegations made in the First information report arenot substantiated during the trial of the criminal case by any oralevidence, an accused cannot be convicted on the basis of mereallegations in FIR as opined by this Court. Further, 'the Firstinformation report is not a substantiative evidence and can be reliedupon if it is corroborated by other evidence which is cogent' in theconsidered opinion of this Court.
51. That apart, FIR cannot be relied upon, when it lacksspontaneity. It cannot be gainsaid that a mere delay in recording FIR isnot a ground to reject the story of the prosecution. Only rider is that, itputs the Court on guard and issues a warning signal that theprosecution story may contain an exaggerated version. But the dutyof the Court below is to apply its judicial thinking mind is that with zealto look out for corroboration from any direction whatsoever for findingout the real truth. Even a long delay can be condoned, if the witnesses have no motive for implicating the accused. The firstinformation report can be pressed into the service as a previousstatement for the purpose of corroboration or contradiction of its makecare in terms of section 157 or 145 of the Indian Evidence Act.
52. Significantly, in the decision Devalla Raghavulu V. Stateof Andhra Pradesh, 2005 CRI.L.J.1041 and at special pages 1042& 1043, in paragraphs 11 to 16, it is observed and laid down asfollows:
'11. It is not in controversy that P.W.2 is amentally retarded and dumb girl and she is unable tostate the offence committed by the accused. P.W.1 inher evidence deposed that the distance between herhouse and the house of accused is about one furlong.She deposed that at about one year eight monthsback at about 12-00 noon, P.W. 2 went to attend tothe calls of nature by saying to her and she returnedat about 2 P.M. and at that time she observed thather clothes were stained with blood and she was notin a position to stand firmly (Padatha LesthaVunnadhi) and she was weeping, P.W. 1 furtherdeposed that she had examined P.W. 2 by lifting herpetticoat and observed the blood on her legs and atthat time her daughter was holding pipperments inher hand, and then she had taken her daughter inside the house and her neighbour by nameBasavamma came, and observed the victim-girl andthey found bleeding from the private parts. P.W. 1also deposed that she questioned her daughter P.W.2 as to how she sustained injury and on that P.W. 2had shown her hand by signing towards outside andthen, P.W. 1 had taken her daughter and wenttowards western side of the road as per the signsgiven by her daughter, and her daughterRamanamma directly took away to the house of theaccused and when she went to the house of theaccused, the accused was present in the house andP.W. 1 observed blood-stained marks from inside thehouse to the outside of the house and shequestioned the accused in the presence ofBasavamma and then they had taken P.W. 2 to theirvillage President. Subsequent thereto, P.W. 2 wastaken to the Police Station and Ex. P1 was given.This witness no doubt was cross-examined at length.But the learned Judge had discussed the evidence ofP.W. 1 at length at paragraph No. 11 and recordedthe reasons as to why the evidence of P.W. 1 can berelied upon.
12. The evidence of P.W. 3 is the connectinglink. P.W. 3 deposed that at about 1 1/2 yearsback, after returning from coolie work, she wassleeping in her varandah, at about 12-00 noon or1-00 P.M. this witness observed the accused going away along with P.W. 2 and during the crossexamination P.W. 3 could not explain as to whetherthe accused was caught hold of the hand of P.W. 2or not. However, P.W. 3 specifically deposed thatthey were proceeding side by side. The defence alsocross-examined P.W. 3, suggesting that this witnesswas giving false evidence. But, however, the learnedJudge after recording reasons, had believed theevidence of P.W. 3 which had supported the versionof the prosecution.
13. Apart from this evidence, the otherwitnesses had also explained the circumstances andhow they heard the weeping cries from the house ofP.W. 1 and how they head seen P.W. 2 and what hadtranspired actually. No doubt, all these are postincident events. But the post-Incident events hadbeen explained in seriatim. This is an unfortunatecase, where a helpless dumb child had been involvedin such an act. The medical evidence also clearlysupports the version of the prosecution. It is nodoubt true that except signs and gestures P.W. 2was unable to explain further and the Court aftertaking necessary assistance was able to understandthe evidence of this dumb witness, well supportedby the evidence of P.Ws. 1 and 3 and the otherwitnesses explaining the circumstances and alsofurther corroborated by medical evidence. Thecircumstances recorded in detail by the learned Judge commencing from paragraphs 11 to 19 wouldonly point towards the guilt of the accused anddefinitely, they negatived the innocence of theaccused. Hence, this Court has no hesitation inarriving at a conclusion that though P.W. 2 is only adumb witness, in view of the evidence available onrecord, the prosecution was able to establish theguilt of the accused beyond all reasonable doubt.
14. In the light of the evidence of P.Ws. 1 to15, Exs. P1 to P 9, Exs. D1 to D 4 and also M. Os. 1 to6, this Court also had given anxious consideration tothe portions marked in 161, Cr.P.C. statements ofP.Ws. 3 to 6 and these witnesses in fact speak of thecircumstances and these inconsistencies are not ofsuch a nature to touch the trustworthiness of thesewitnesses. Hence, this Court does not see any reasonto interfere with the well considered findingsrecorded by the learned Judge and accordingly, thesaid findings are hereby confirmed.
15. It is really unfortunate that the accused ishaving a daughter of marriageable age and that healso hails from a family eking livelihood on coolywork and the whole family is dependent on him. It isequally unfortunate that this appellant-accused hadinvolved himself in a heinous crime of this nature onan innocent unfortunate dumb girl. It is also broughtto the notice of this Court that inasmuch as theappellant-accused was not released on ball, he has been in custody for about five years, taking theoverall facts and circumstances into consideration,and also the fact that the whole family is dependanton the appellant-accused, who is also a cooly byprofession, the conviction under Section 376(2)(i),IPC, no doubt is hereby confirmed.
16. In the result, the conviction imposed by theAssistant Sessions Judge, Kavali on 8-7-1999,against the accused for the offence under Section376(2)(f), IPC in Sessions Case No. 353 of 1996 isconfirmed. But so far as the sentence of rigorousimprisonment for a period of ten years is concerned,it is reduced to five years, and the payment of fine ofRs. 150/-, in default, to undergo simpleimprisonment for one year is hereby confirmed.'
53. In the decision of Hon'ble Supreme Court State of PunjabV. Ramdev Singh, AIR 2004 Supreme Court 1290 and at specialpages 1291 and 1292, in paragraph 1, it is observed as follows:-
'1. Sexual violence apart from being adehumanizing act is an unlawful intrusion on theright of privacy and sanctity of a female. It is aserious blow to her supreme honour and offends herself-esteem and dignity it degrades and humiliatesthe victim and where the victim is a helplessinnocent child or a minor, it leaves behind atraumatic experience, a rapist not only causes physical injuries but more indelibly leaves a scar onthe most cherished possession of a woman i.e. herdignity, honour, reputation and not the least herchastity. Rape is not only a crime against the personof a woman, it is a crime against the entire society.It destroys, as noted by this Court in ShriBodhisattwa Gautam v. Miss Subhra Chakraborty(AIR 1996 SC 922), the entire psychology of awoman and pushes her into deep emotional crisis. Itis a crime against basic human rights, and is alsoviolative of the victim's most cherished of theFundamental Rights, namely, the Right to Lifecontained in Article 21 of the Constitution of India,1950 (in short the 'Constitution') The Courts are,therefore, expected to deal with cases of sexualcrime against women with utmost sensitivity. Suchcases need to be dealt with sternly and severely. Asocially sensitized judge, in our opinion, is a betterstatutory armour in cases of crime against womenthan long clauses of penal provisions, containingcomplex exceptions and provisos.'
Further, in the aforesaid decision at page 1294 in paragraph 13,it is observed as follows;
'13. It is well settled that a prosecutrixcomplaining of having been a victim of the offence ofrape is not an accomplice after the crime. There is no rule of law that her testimony cannot be actedwithout corroboration in material particulars. Shestands at a higher pedestal than an injured witness.In the latter case, there is injury on the physicalform, while in the former it is both physical as wellas psychological and emotional. However, if thecourt of facts finds it difficult to accept the versionof the prosecutrix on its face value, it may search forevidence, direct or circumstantial, which would lendassurance to her testimony. Assurance, short ofcorroboration as understood in the context of anaccomplice would do.'
54. In the decision The Public Prosecutor, High Court ofA.P.Hyderabad V. Lingisetty Sreenu, 1997 CRI.L.J.4003 and at specialpages 4006 and 4007, in paragraphs 12 to 15, it is observed asfollows;
'12. P.W. 4 is a dumb girl but as admitted byP.Ws. 2 and 5 she is not deaf. When she was put inthe witness box, after examining her for some time,the learned District Judge upheld the contention ofthe counsel for the accused, that in case of a witnessof this type, who is dumb, such witness can only beexamined with the help of an expert, or some personwho is very much familiar with the witness, andaccordingly he appointed one Sri K. Basavannappa,Principal, Government Residential School, for deaf atBapatla, as an interpreter to this witness. Oath was administered to him, the Court noted the depositionof P.W.4 with the help of this interpreter. To thequestion whether the accused was known to her thiswitness knodded her head "vertically" and theinterpreter stated that her answer was "yes". As tothe question, what happened to her in the past thewitness stated that the accused slightly lifted herpetty coat (lenga). To the question what else wasdone to her the witness pointing her private parts(vagina), with her right hand, stated that somethingwas done on her vagina, and to a further questionwhether the same thing was done in a sittingposition or in a lying position, she stated with signsthat it was in a lying position. To a further questionwhat the accused did exactly, she stated that herpetty coat was lifted and also her jacket and at thispoint of time she started weeping. But, she wasconsoled by the interpreter. To the question whethershe agreed or objected to such an act she replied byknodding her head horizontally indicating that shedid not agree for the act done by the accused. Sheadmitted that the police recorded her statement.She has been cross-examined with the help of theinterpreter. She admitted the suggestion that thereis quarrel between his parents and the parents ofthe accused. She also admitted the suggestion thatshe was deposing since she has been asked to do soby her mother and grand mother. A last suggestion also was put to her that the quarrel between herparents and the parents of the accused was since along time, she stated yes. Thus, from her evidence, itis clear that she clearly identified the accused. Asadmitted by P.Ws. 1 and 2, the brother and motherof the victim girl, the house of the accused isseparated by two houses. From this it follows thatthe accused and the victim girl knew each other.Admittedly, it was day time at about 11 a.m. Even, ifit is assumed for the sake of the argument that herbrother P.W. 1 could not recognise the accused forwhatever reason, but she had recognised theaccused and absolutely there is no reason why, herevidence should be disbelieved. She has withstoodthe cross-examination and nothing could be elicitedwhich could destroy the prosecution case. In factrelying on her evidence only the learned SessionsJudge, convicted the accused for the offences underS. 354 of I.P.C. Having regard to the entire evidenceon record, I cannot accede to the contentions of thelearned counsel for the accused that the prosecutionhas failed to prove its case.
13. The learned counsel for the accused nextlysubmitted that the impugned judgment and orderbased on the evidence of P.W. 4 only cannot besustained. The victim girl being a dumb girl a furthercorroboration is necessary to sustain a conviction.On the other hand the learned Public Prosecutor submitted that such an evidence of P.W. 4 isadmissible in view of S. 119 of the Evidence Act andabsolutely there is no illegality or irregularity in theimpugned order.
14. In order to appreciate the rival contentionson both sides, I am herewith extracting S. 119 of theEvidence Act which reads as under :
"A witness who is unable to speak may give hisevidence in any other manner in which he can makeit intelligible, as by writing or by signs; but suchwriting must be written and the signs made in openCourt. Evidence so given shall be deemed to be oralevidence."
From this section of the Evidence Act, I find that adeaf and dumb person can be a competent witness.According to this section a witness who is unable tospeak may give his or her evidence in any othermanner he or she can make such evidenceintelligible. The other manners in which a person canmake his ideas intelligible would be either by awritten word or by signs. The only restriction is thatsuch expressions of the ideas by means of signs orwriting should be made in open court. In the instantcase P.W. 4 deposed before the Court with the helpof signs. It is pointed out by the High Court of Keralain "Kadungoth Alavi v. State of Kerala", 1982 Cri LJ94, that the Court in order to understand andappreciate the evidence of such witnesses expressing their ideas with the help of signs itshould necessarily seek the assistance of an expertso as to safely rely on such an evidence. I fully agreewith the ratio of the said decision. The object of suchprinciples is that by misunderstanding such signs aninnocent person shall not be convicted and thus it isa rule of prudence that such an expert evidencewould be necessary in the circumstances of thistype. Moreover S. 282 of Cr.P.C. also enables thecriminal Court to take the services of an interpreterfor interpreting any evidence or statement, and suchinterpreter when required by the criminal court isbound to state the true interpretation of suchevidence or statement. Having appreciated thisposition of law only the Court below appointed thePrincipal, Government Residential School for Deaf asan interpreter to this witness by administering theoath to him. It cannot be said that such a personwho has been educating the deaf and dumb studentsis not an expert. From the evidence of P.W.4 elicitedwith the help of the interpreter it is proved that notonly the commission of the offences but also theidentity of the offender who is the accused beforethe Court. Therefore, it is not possible to accede tothe contention of the learned counsel for theaccused that this evidence of P.W.4 cannot be reliedat all.
15. However, the learned counsel for the accused further submitted that in order to rely onthe testimony of P.W.4 a further corroboration isnecessary. But, the Hon'ble Supreme Court in morethan one judgment has declared the law that in caseof sexual offences it would not be wise to insist uponother evidence to corroborate the evidence of thevictim girl. For instance in "Krishan Lal v. State ofHaryana" AIR 1980 SC 1252:(1980 Cri LJ 926), theHon'ble Supreme Court pointed out that "femeninetendencies to conceal the outrage of masculinesexual aggression are factors which are relevant toimprobabalise the hypothesis of false implication."In "Bharwada Bhoginbhai Hirjibhai v. State ofGujarat" (1993) 2 Crimes 232 : (1983 Cri LJ 1096),the Hon'ble Supreme Court further pointed out thatthe refusal to act on the testimony of a victim of thesexual assault, only because of absence ofcorroboration, would only be adding insult to injury.The Hon'ble Supreme Court pointed out thatcorroboration is not the sine qua non for aconviction in rape cases. In view of this law declaredby the Hon'ble Supreme Court it is clear that theevidence of P.W. 4 could be safely relied uponwithout insisting on any further corroboration andthere is no error in the judgment of the Court belowin relying on such evidence of P.W.4, more so, inview of the fact that, a part of the prosecution casestands proved by the evidence of P.Ws.1, 2 and 3 that such an offence was committed on her. Havingregard to the tendency that sexual offences arenormally committed in isolation there cannot be abetter witness than the victim girl herself. P.W.4categorically stated that it was the accused whocommitted the offence in question. Therefore, thecontention of the learned counsel for the accusedurged in this behalf merits only for rejection.'
55. That apart, it is to be noted that the most natural mode ofcommunication by a deaf person is by signs. This is in substance theEnglish Law also. The evidence so given shall be deemed as oralevidence under the English Law signs made by a dumb witness may betranslated by an interpreter (Taylor – Article 1376). This is theAmerican view also (Cowby V. People 83 NY 478)
56. At this stage, this Court recollects and recalls the decisions inMailsami V. State (1994) Cri.LJ 2238 at special page 2240, inparagraph Nos. 5 & 6, whereby and whereunder, it is observed andlaid down as follows:-
'5.The submission that no offence underSection 417 I.P.C. is made out, cannot be acceptedfor the reason that when she refused to have sexualintercourse with him, he made a promise that he will definitely marry her and induced her to subjectherself for sexual intercourse by him; but ultimatelywhen she insisted for marriage, after she becamepregnant, he evaded and ultimately he put animpossible condition and did not marry her. So, theinducement is there and because of that, she haddone something, which she would not do, if she hadnot believed that inducement and that inducement isshown to be a dishonest one. All the ingredientsnecessary to make out the offence under Section417 are available here. So the first submissioncannot be sustained.
6.Regarding the second submission thatoffence under Section 417 I.P.C. is barred by time,the date from which the period is to be computed,assumes importance Mr.Hajiee P.K.Jamal Mohamed,would submit that the date on which she agreed tohave sexual intercourse with the accused would bethe material date. I do not accept this submissionfor the reason that the date of knowledge of theaggrieved person is the material date and on thedate on which she agreed to have sexualintercourse, she did no have the knowledge that hewas going to ultimately cheat her and only the dateon which she came to know that she was cheated isthe material date, for fixing the starting point oflimitation, so far as offence under Section 417 isconcerned. Any victim of cheating would not know,on the date of cheating that he or she was beingcheated. The victim would come to know only on alater point of time, that he or she was cheated. Thevictim would come to know only on a later point oftime, that he or she was cheated. That is thematerial date. In the instant case, she believed thepromise made by the accused and agreed for sexualintercourse. Later she became pregnant by sixmonths. He asked her to dissolve the pregnancy andthen he would marry her. The lady doctor said thatthe pregnancy could not be dissolved because of theadvance stage of pregnancy. Then he insisted thathe would marry only after pregnancy was dissolved.Panchayat was held. At that time he agreed. But itwas not given effect to. Then on 11.04.90 she gavereport to the police and the Sub Inspector, Keeranursent for him and his father and others and at thatthey agreed for the marriage, but later did not do it.Only then, she has come to know that she has beencheated and had given this complainant on 15.6.90.Between 11.4.90 and 15.6.90 only about twomonths has elapsed. So it is not barred by time.Hence the second submission also fails.'
57. Also this Court, aptly points out the decision in RaoHarnarain Singh Sheoji Singh and Others V. The State AIR 1958Punjab 123, wherein it is held as follows:-
'All consent is an act of reason accompaniedby deliberation, a mere act of helpless resignation inthe face of inevitable compulsion, non-resistanceand passive giving in cannot be deemed to beconsent.'
58. Furthermore, this Court refers to the decision in Jaladu NRe (1913) 36 Madras 453, wherein it is held as follows:-
' the expression under a misconception of fact'is broad enough to include all cases, where theconsent is obtained by misrepresentation, themisrepresentation should be regarded as leading toa misconception of the facts with reference to whichthe consent is given.'
59. Added further, in the decision Flattery (1877) 2 QBD at page410, the fact is that where the Accused professed to give medical andsurgical advice for money. The Prosecutrix, a girl of 19, consulted himwith respect to illness from which she was suffering. He advised that asurgical operation should be performed and under pretence ofperforming it, had carnal connection with the Prosecutrix. Shesubmitted to what was done under the belief that he was merelytreating her medically and performing a surgical operation. It was heldthat the Accused was guilty of rape. That apart, mere submission byone, who does not know the nature of act done cannot be consent as per QUAIN ,J. in Lock (1872) LR 2 CCR 10, 14.
60. Moreover, in the decision Ravichandran V. Mariyammal,1992 CRI.L.J. 1675, at special page 1676, wherein, in paragraphNos.7 and 8, it is laid down as follows:
'7. Deception of any person is common to thesecond and the third requirements of the section asstated above. Second and third requirements arealternative to each other and this is madesignificantly clear, by use of disjunctive conjunction'or'. Therefore it goes without saying that thedefinition of the offence of cheating, embraces somecases in which no transfer of property is occasionedby the deception and some in which no transferoccurs. For these cases, a general provision is madein S.417 of Code. For the cases in which property istransferred, a more specific provisions is made by S.420. But the offence of cheating of any person bydelivery of property is punishable under either of thesection. But where the case appears to be of aserious nature, step is normally taken under S.420I.P.C. In this view of the matter, the contention oflearned counsel for the petitioner that since theoffence of cheating figuring in Chapter XVII, relatesto property offences, the case on hand, cannot at allbe said to be coming within the purview of S.417I.P.C. cannot at all be countenanced.
8.The averments in the complaint, do primafacie, point out false representation said to havebeen made by the petitioner, in the sense of himselfmaking a promise to marry her, and believing such apromise, the respondent succumbed to his carnaldesire, in request. But for the representation somade and the deception practiced on her, she wouldnot have been a party for sharing her bed with thepetitioner, on the relevant date, which is said tohave resulted in her becoming pregnant. Theallegations as stated in the complainant do primafacie, establish an offence under S.417 I.P.C.requiring him to undergo the ordeal of trial. Further,the Court below has already examined 8 witnessesafter taking the complaint on file with subjectivesatisfaction that a prima facie case had beenestablished against the petitioner.'
61. As far as award of compensation in terms of 357(3) of Cr.P.Cis concerned, it is to be kept in mind that the compensation ought tobe a part of sentence and should be specifically mentioned whether asexpenses or for injury caused to a person. It is necessary to establishthat (1) a person had suffered loss or injury (2) it was caused by anoffence in question (3) compensation could be recovered by the civilCourt as per decision Mangalchand V.Mohan, A.I.R 1917 Nagpur at page 122.
62. It is to be pointed out that the Court is empowered torecover compensation awarded under Section 357(3) of CriminalProcedure Code in either or both of methods under Sections 421 and431 of Criminal Procedure Code.
63. However, in the decision Vijayan V. Sadanandan K &another, III (2009) Banking Cases page 282 (SC) and at specialpages 286 and 287 in paragraph 13, it is observed as follows:-
'13. Mr. Basant submitted that Section 431Cr.P.C. provides that any money (other than a fine)payable by virtue of any order made under the Codeand the method of recovery of which is nototherwise expressly provided for, shall berecoverable as if it were a fine. Mr. Basant submittedthat in that view of the matter, compensationawarded under Section 357(3) Cr.P.C. could also berecovered under Section 431 Cr.P.C. read withSection 421 Cr.P.C., which provides the methods forrecovery of fine imposed by the Court from theaccused. In this connection, reference was alsomade to Sections 64 to 70 of the Indian Penal Code(IPC), which empower the Court to impose a defaultsentence in case of non-payment of fine. It wassubmitted that default sentence is not a substantive sentence under the IPC and it comes to an end themoment fine is paid by the accused. It wassubmitted that Section 53 IPC deals with variouspunishments that can be imposed on the accused,but default sentence is not one of the sentencesmentioned in Section 53. Mr. Basant added thatSection 30 Cr.P.C. also recognizes the power of theCourt to impose a default sentence on non- paymentof fine. Referring to the decision of this Court inShantilal v State of Madhya Pradesh, (2007) 11 SCC243, Mr. Basant submitted that it had been held inthe said case that a default sentence is not asentence as such, but a penalty which a personincurs on non-payment of fine. Special referencewas made to paragraph 31 of the judgment whichreads as follows :-
'31. The next submission of the learnedcounsel for the appellant, however, has substance.The term of imprisonment in default of payment offine is not a sentence. It is a penalty which a personincurs on account of non-payment of fine. Thesentence is something which an offender mustundergo unless it is set aside or remitted in part orin whole either in appeal or in revision or in otherappropriate judicial proceedings or `otherwise'. Aterms of imprisonment ordered in default ofpayment of fine stands on a different footing.'
The same view was expressed earlier by this Courtin Kuldip Kaur v Surinder Singh, (1989) 1 SCC 405,where it was held that a default sentence is a modeof enforcing recovery of amount imposed by way ofcompensation.'
Added further, in the aforesaid decision at page 288 inparagraph 19, it is observed as follows:-
'19. In our view, the provision for grant ofcompensation under Section 357(3) Cr.P.C. and therecovery thereof makes it necessary for theimposition of a default sentence as was held by thisCourt firstly in Hari Singh's case (supra) andthereafter in Sugnathi Suresh Kumar's case (supra).In our view, the law has been correctly stated in thesaid two decisions. As we have mentionedhereinbefore, when the decision of this Court in HariSingh's case (supra) was holding the field, thelearned Single Judge of the High Court had wronglyrelied on the decision of the Kerala High Court inRajendran's case (supra). The power to impose adefault sentence in case of non-payment ofcompensation under Section 357(3) Cr.P.C. has beenduly recognized by this Court and the argumentsadvanced to the contrary on behalf of the Petitionermust, therefore, be rejected.'
That apart, in the aforesaid decision at page 289 in paragraph 22and 23, it is observed and laid down as follows:-
'22. The provisions of Sections 357(3) and 431Cr.P.C., when read with Section 64 IPC, empowerthe Court, while making an order for payment ofcompensation, to also include a default sentence incase of non-payment of the same. The observationsmade by this Court in Hari Singh's case (supra) areas important today as they were when they weremade and if, as submitted by Dr. Pillay, recourse canonly be had to Section 421 Cr.P.C. for enforcing thesame, the very object of Sub-Section (3) of Section357 would be frustrated and the relief contemplatedtherein would be rendered somewhat illusory.
23. Having regard to the views expressedhereinabove, we hold that while awardingcompensation under Section 357(3) Cr.P.C., theCourt is within its jurisdiction to add a defaultsentence of imprisonment as was held in HariSingh's case (supra).'
64. However, in Appeal/Revision the Court can direct thesuspension of sentence subject to a condition of default as per decisionMohd Hafiz Khan V. Anand Finance 2004 (2) Crimes page 511and at page 514 (Bom).
65. As a matter of fact, the direction to pay compensation under Section 357 (3) of Cr.PC, is on the assumption of civil liability on thepart of the person who committed the offence to redress the victim orhis dependence by payment of compensation as per decision of theHon'ble Supreme Court Arun Garg V.State of Punjab and another,(2004) 8 Supreme Court Cases 251.
66 Added further, the compensation should be part of thesentence and should be specifically mentioned whether as an Expensesor for Injury as per decision 14 Cr.L.J page 522.
67. The significant difference between Sub Section (1) and 3 ofSection 357 Cr.P.C is that in the former, the award of fine is the basicrequirement, while in the latter even in the absence thereof empowersthe court below to direct payment of compensation. As such the s
Please Login To View The Full Judgment!
aidpower is to be exercised by an Appellate Court or by the High Court orCourt of Sessions when exercising revisional powers. 68. In terms of Section 357(3) of Cr.P.C. The Learned JudicialMagistrate independently of the sentences awarded by him has powersto award compensation, in the considered opinion of this Court. 69. It is true that a court below can award compensation to the complainant for which no limit is prescribed under Section 357 ofCr.P.C., as per decision Pankajbhai Nagjibhai Patel V. State ofGujarat and another, AIR 2001 Supreme Court 567. However, infixing the amount, the Court has to consider what would be thereasonable compensation payable to the complainant as per decisionK.Bhaskaran V. Sankaran Vaidhyan Balan and another, AIR1999 Supreme Court 3762. 70. The compensation should be commensurate with thecapacity of the accused to pay as also other facts and circumstances ofthat case like the gravity of the offence, the needs of the victim'sfamily etc., as per decision of the Hon'ble Supreme Court RachhpalSingh V. State of Punjab, AIR 2002 Supreme Court 2710 and atspecial page 2715. 71. Also, in the decision of the Hon'ble Supreme Court MangilalV.State of Madhya Pradesh, AIR 2004 Supreme Court 1280,wherein it is held as follows:- 'The power of the Court to awardcompensation to victims under Section 357 is notancillary to other sentences but is in additionthereto.' 72. Be that as it may, in the instant case on hand, the evidence of P.W.1 (victim) is very categorical to the effect that the RevisionPetitioner/A1 (Kandasamy) informed her, he would marry her andfurther, pulled her hand and committed raped on her/indulged sexualintercourse on the promise of marriage. Later on, he refused to marryher. Her parents informed that the Revision Petitioner/A1 shouldmarry her and that, the Revision Petitioner/A1 and his parents (fatherand Mother A2 and A3) could talk together and perform the marriagefor which A1's parents viz., A2 and A3 had not accepted the same.Therefore, even though the incident had taken place four months priorto the filing of the complaint by P.W.1, inasmuch as finally on15.11.2008, when the village important persons called the RevisionPetitioner/A1 and his parents, they had refused to come and later on,they threatened P.W.1's parents with an intimidation of murder andthereupon only, P.W.1 filed Ex.P1 complaint and under thesecircumstances, the delay could not be put against the prosecution inthe considered opinion of this Court. Further, the delay in regard tothe filing of F.I.R viz., four months after the date of occurrence byP.W.1, is not fatal, and as such it does not affect the case ofprosecution in the considered opinion of this Court. 73. Coming to the aspect of the occurrence/incident, it is to be remembered that P.W.1 (victim) being the eye witness who wasravished by the Revision Petitioner/A1 and in fact, it is her clear cutevidence of P.W.1 that when no one was present during 10.00 a.m. inthe morning and at about 10.00 p.m. in the night, the Revisionpetitioner/A1 came to her house and indulged in sexualintercourse/committed rape on her. As such, the evidence of P.W.1(victim) being a direct eye witness to the occurrence is a reliable andtrustworthy one and therefore, a mere delay in filing of FIR as alreadystated supra is of no ground to throw the entire prosecution case asopined by this Court. 74. Suffice it for this Court to point out based on the soletestimony of P.W.1 which is a cogent, coherent and convincing one,this Court holds that the charge levelled under Section 417 of IndianPenal Code against the Revision Petitioner/A1 stands proved beyond allshadow of doubt. As such, the trial Court's as well as the FirstAppellate Court's findings of guilt arrived at in respect of the RevisionPetitioner/A1 under Section 417 of Indian Penal Code is affirmed bythis Court for the reasons assigned in this Revision Petition.Resultantly, this Court upholds the conviction and sentence of one yearsimple imprisonment imposed by the Learned Judicial Magistrate,Manapparai and the First Appellate Court, Trichirappalli (butinadvertently/wrongly/mistakenly the First Appellate Court has wronglymentioned in its judgment in C.A.No.2 of 2012 dated 12.12.2012 whileaffirming the sentence of the trial Court as one year Rigorousimprisonment for the offence under Section 417 of IPC.) 75. Dealing with the quantum of compensation of Rs.1,00,000/-awarded by the trial Court to P.W.1(victim) and the same beingpayable by the Revision Petitioner/A1 within a period of six monthsand maximum to be paid in five instalments and later, compensationamount of Rs.1,00,000/- being confirmed by the First Appellate Courtin C.A.No.2 of 2012, this Court, at this stage pertinent points out thatboth the trial Court and the First Appellate Court while orderingcompensation of Rs.1,00,000/- and the same being to be paid by theRevision Petitioner/A1 had not gone into his financial capacity or abilityto pay the aforesaid amount. 76. It is true that the P.W.1 (victim – Dumb person) had suffereda loss or injury i.e. she being ravished by the Revision Petitioner/A1 inregard to the commission of an offence under Section 417 of IPC.Equally, there is no two opinion of the fact that the direction to pay compensation by the trial Court and the First Appellate Court is basedon the assumption of civil liability on the part of the person viz., theRevision Petitioner/A1 who has committed the offence mainly toredress the grievance of P.W.1/victim, as opined by this Court.Although no limit is prescribed under Section 357 of Cr.P.C forawarding compensation yet in the considered opinion of this Court, itcannot be an arbitrary and excessive one. Per contra, the award ofcompensation by a court of law for loss or injury suffered by the victimought to be a fair and reasonable one. 77. It is true that a sensitised judge, in a complex, varied,multifaceted modern civilized society is a better statutory armour incases of crime against women. To put it precisely, a Court of Law is tobe sensitised while dealing with the cases of sexual assault on women.Therefore, bearing in mind the well known principle that compensationshould be commensurate in paying capacity of an accused to pay andalso other facts and circumstances of the case like gravity of offenceneeds of the victim family etc., and also to make the RevisionPetitioner/A1 to realise the harm that he had done to P.W.1/Victim andto wipe out the tears from her eyes, this Court, to prevent anaberration of justice and to promote substantial cause of justice,directs the Revision Petitioner/A1 to pay a Fair, Just and Equitablecompensation amount of Rs.60,000/-(Rupees Sixty Thousand only) tothe P.W.1(victim) within five instalments within a period of threemonths from the date of receipt of a copy of this order. (if not paidearlier). It is open to the P.W.1/Victim to recover the compensationamount of Rs.60,000/- (Rupees Sixty Thousand Only) as arrears ofland revenue as per Sections 421 and 431 of Cr.P.C. However, if thePetitioner is desirous of recovering the compensation amount of Rs.60,000/- (Rupees Sixty Thousand Only), awarded by this Court fromthe Revision Petitioner/A1, then, this Court grants permission to her totake recourse to the Civil Remedy also in the manner known to lawand in accordance with law. With the aforesaid directions, the Criminal Revision Petitionstands disposed of. Consequently, connected miscellaneous petition isclosed.