(Prayer: Criminal Appeal filed under Section 415(2) of BNSS Act, to set aside the order dated 05.09.2024 made in S.C.No.111/2024 on the file of the learned Principal District Judge and Sessions Judge, Ranipet, by allowing the present Criminal Appeal by acquitting the appellant.)
1. The Criminal Appeal has been filed challenging the Judgment dated 05.09.2024 passed in S.C.No.111/2024 by the learned Principal District Judge and Sessions Judge, Ranipet, convicting and sentencing the appellant/A1 as follows:
| S.No. | Offence under Section | Sentence imposed |
| 1. | 376(1) of IPC | To undergo ten years RI and to pay a fine of Rs.5,000/-, in default to undergo one year RI; |
| 2. | 417 of IPC | To undergo one year RI and to pay a fine of Rs.1,000/-, in default to undergo three months RI; |
| 3. | 506(ii) (one count) | To undergo one year RI and to pay a fine of Rs.1,000/-, in default to undergo three months RI; |
2(a). The gist of the prosecution case is that the appellant, who was arraigned as A1 before the trial Court, had a love affair with the de-facto complainant/victim/P.W.1; that on the promise of marriage, he had sexual intercourse with the de-facto complainant by force on several occasions; and that the appellant's parents/A2 and A3, had abused the de-facto complainant in filthy language and threatened her with dire consequences when she approached them to get her married to the appellant, and thus all the accused committed the offences under Sections 294(b), 323, 376 and 506(i) of the Indian Penal Code, 1860.
(b). The de-facto complainant had lodged a complaint on 30.12.2012. P.W.5/Inspector of Police registered an FIR [Ex.P8] on the same day. P.W.6, the Inspector of Police, took up the investigation and filed the Final Report before the District Munsif cum Judicial Magistrate No.I, Walajabad, for the offences under Sections 354, 376, 417, and 506(i) r/w 4 of the Tamil Nadu Prohibition of Harassment of Women Act against all the accused.
(c). On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with, and they were committed to the Court of Sessions and made over to the learned Principal District and Sessions Judge, Ranipet District, for trial, which was taken on file as S.C.No.111 of 2024. The trial Court framed charges against the accused for the offences under Sections 376(1), 417, 506(ii) (two counts) and 294(b) of the IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act and when questioned, the accused pleaded -not guilty.
(d). To prove its case, the prosecution had examined 6 witnesses as P.W.1 to P.W.6 and marked 10 exhibits as Exs.P1 to P10. When the accused was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against them, they denied the same. The accused neither examined any witness nor marked any document on their side.
(e). On appreciation of oral and documentary evidence, the trial Court acquitted the second and third accused and found the appellant/A1 guilty of the aforesaid offences and accordingly convicted and sentenced him as stated above. Hence, the appellant/A1 has preferred the instant appeal challenging the said conviction and sentence.
3. Mr.R.Vivekanandan, the learned counsel for the appellant/A1, would submit that the impugned Judgment is liable to be set aside since the allegations do not constitute any of the offences for which the appellant was convicted; that the appellant and the de-facto complainant had a consensual relationship; that the defacto complainant did not want to marry the appellant and married some other person and when the husband of the de-facto complainant came to know that the de-facto complainant was pregnant, she was sent out of the matrimonial home and thereafter, the de-facto complainant had lodged the instant complaint as an after thought since the appellant refused to marry her; and that the conduct of the defacto complainant and the evidence on record would show that the offence either under Section 376 of the Indian Penal Code or under Section 506(ii) of the Indian Penal Code, would not be made out.
4. Mr.S.Raja Kumar, the learned Additional Public Prosecutor, per contra, submitted that the victim had deposed cogently; that the victim's evidence has been corroborated by P.W.2 and P.W.3; and that the trial Court had rightly convicted the appellant for the aforesaid offences and the Judgment is not liable to be set aside.
5. As stated earlier, the prosecution had examined six witnesses to prove its case. P.W.1 is the victim, who was aged 19 years at the time of the occurrence. P.W.2 is the mother of the victim. P.W.3 is a common relative of both the appellant and the victim. P.W.4 is the Forensic Science Officer who had issued the DNA Test Report [Ex.P7]. P.W.4 had opined that the appellant is the biological father of the child born to the victim/P.W.1. P.W.5 is the Inspector of Police who registered the FIR [Ex.P8]. P.W6 is the Inspector of the Police who conducted the investigation and filed the Final Report.
6. It is not in dispute by the appellant/A1 that the appellant and the victim had a consensual relationship. However, the case of the appellant is that he had not committed any offence of cheating and it was the victim who decided to marry another person, although the appellant was always willing to marry the victim. Admittedly, the appellant and the victim are closely related to each other. This is confirmed by the victim in her cross-examination. P.W.1, the victim, would state that on the promise of marriage, the appellant compelled her to have sexual intercourse. She would further depose that the appellant threatened her with dire consequences if she disclosed their relationship to any other person. The victim had not stated about the alleged occurrences to her mother namely P.W.2.
7. It is the version of P.W.1/victim that her mother had fixed the marriage with another person, and the marriage was solemnized on 03.12.2012; that she was living with the said person for ten days, and thereafter, when she had developed the symptoms of pregnancy, it was found that she was pregnant for about three months, and therefore, her husband had sent her out of the matrimonial home. She thereafter went to the house of the appellant on 13.12.2012 and the appellant and his parents had abused her in filthy language and threatened her of dire consequences if insisted on marrying the appellant. However, in her cross-examination, she would make the following admissions, which are extracted for better appreciation of her evidence:
8. From the above admissions made by the victim/P.W.1, it would be very clear that the victim had sexual intercourse with the appellant on several occasions knowing full well of the consequences. In fact, she had not informed any other person about their relationship, and she had voluntarily married another person. It is not her version that she was compelled to marry the said person. She also would admit that she never approached her brother or parents to get her married to the appellant. She had also not approached the appellant's parents for the said purpose before she got married to another person.
9. Admittedly, as stated above, the appellant and the victim are closely related to each other. The above admissions further disclose that the appellant had not made any representation to deceive the victim and had sexual intercourse. Considering all the above facts, this Court is of the view that the victim had a consensual affair with the appellant and it cannot be said that the consent was vitiated for any reason. The Hon'ble Supreme Court in Mahesh Damu Khare Vs. State of Maharashtra and another, reported in (2024) 11 SCC 398, has held as follows:
“28. Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the women, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.”
10. Therefore, for all the aforesaid reasons, this Court is of the view that the appellant is not guilty of the offences under Section 376 of the Indian Penal Code or under Section 417 of the Indian Penal Code. However, it is seen that the victim has given birth to a child. Hence, considering the peculiar facts and circumstances of the case, this Court is of the view that notwithstanding the acquittal, the compensation, if any, paid to the victim pursuant to the impugned Judgment shall not be recovered from the victim/P.W.1.
11. With the above observations, this Criminal Appeal is allowed. The Judgment dated 05.09.2024 in S.C.No.111/2024 on the file of the learned Principal District Judge and Sessions Judge, Ranipet, convicting and sentencing the appellant for the offences under Sections 376(1), 417 and 506(ii) of the IPC is set aside. The appellant/A1 is acquitted of all the charges. The fine amount, if any, paid by the appellant shall be refunded. The bail bond, if any, executed shall stand discharged.