Dismissed

Karmegam v. the Inspector of Police

Madras HC13 Mar 2020CRL A(MD)/243/2015

Case brief

AI extract

What is this about?

An appeal against conviction and sentence for cheating. The High Court confirmed the conviction under Section 417 IPC for making a false promise to marry, modified the sentence from one year to six months rigorous imprisonment, and directed the accused to be sent to jail as he was on bail.

What did the court decide?

Sentence reduced to six months rigorous imprisonment for Section 417 IPC; bail bond cancelled; accused directed to be sent to jail.

Karmegam Vs the Inspector of Police — Cheating and Forgery | Madras HC (2020)

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CRL. A(MD)NO.243 OF 2015

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BAIL SLIP

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The Appellant/Accused namely Karmegam was released on bail as per order of this Court dated 21.09.2015made in MP(MD)No.1 of 2015 in CRL A(MD).243 of 2015.

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 13.03.2020

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CORAM

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THE HONOURABLE MR. JUSTICE M.DHANDAPANI

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CRL. A(MD)NO. 243 OF 2015

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Karmegam

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.. Appellant/Sole Accused

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- Vs -

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The State rep. by The Inspector of Police, Eral Police Station, Thoothukudi District, (Crime No.44 of 2013)

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.. Respondent/Complainant

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Criminal Appeals filed u/s 374 (2) of the Code of Criminal Procedure to call for the entire records relating to S.C.No.187 of 2013 on the file of the learned Sessions Judge, Mahalir Neethi Mandram (Fast Track Mahila Court, Thoothukudi) and set aside the conviction and sentence imposed on the appellant by the above Court vide its Judgement dated 20.08.2015.

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For Appellant : Mr.K.Ganesan For Respondent : Mrs.S.Bharathi Govt. Advocate (crl.side)

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JUDGMENT

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The appellant/sole accused was charged and tried before the Sessions Judge, Mahalir Neethimandran (Fast Track Mahila Court), Thoothukudi, for the offences u/s 417, 420 and 376 IPC and on being found guilty, the appellant/sole accused was convicted and sentenced to undergo rigorous imprisonment for a period of 1 year together with a fine of Rs.5,000/-, in default, to undergo rigorous imprisonment for a period of six months for the offence u/s 417 IPC alone. However, the trial Court finding that the charges for the offences under Sections 376 and 420 IPC were not proved, acquitted the accused under Section 235(1) Cr.P.C. Set off, as applicable u/s 428 Cr.P.C, was ordered. The

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CRL. A(MD)NO.243 OF 2015

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appellant/sole accused, aggrieved by the said conviction and sentence, has preferred the present appeal.

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2.For the sake of convenience, the parties are referred to by their own ranking before the trial Court.

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3.The case of the prosecution as unfolded from the evidence available on record, is as under :-

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(i) The victim/P.W.1, Thommaiyasiyal is residing with her brother Rayappan in Athisayapuram village. The victim/P.W.1 and the appellant/accused were working as Coolies in the brick Kiln in Eral. The appellant/accused, who is a married man, told the victim/P.W.1 that his wife deserted him and gave a false promise that he would marry her.

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(ii) On 25.03.2011, at 06.00 O' Clock, the appellant/accused on the false promise of marrying her forcibly had sexual intercourse with her in the thatched hut in the brick Kiln. Likewise, the appellant/accused had sexual intercourse with the victim/P.W.1 on several times. The victim/P.W.1 was under the belief that he would marry her and so subjected herself to the appellant/accused.

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(iii) Thereafter, on 10.09.2011 at 09.30 a.m, the appellant/accused told that he needed money for marriage and borrowed 3½ sovereigns gold and Rs.30,000/- in cash from her and thus, cheated her dishonesty. Hence, P.W.1/victim gave the complaint (Ex.P.1) to the P.W.10 / Special Sub-Inspector of Police

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On receipt of Ex.P1 / Complaint, P.W.10 / Special Sub Inspector of Police registered the FIR in Crime No.44 of 2013, for the offences under Sections 417, 420, and 376 of IPC., on 23.02.2013, thereafter, P.W.10 / Special Sub-Inspector of Police handed over the investigation to P.W.11 / Inspector of Police, who took up the investigation, leading to filing of the charge sheet against the accused.

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On receipt of final report by the prosecution, the learned Judicial Magistrate, Srivaikundam, taken the case on file, as P.R.C.No.37 of 2013.

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Since the offences committed by the accused are triable by the Court of Sessions, the learned Judicial Magistrate, Srivaikundam, has committed the case along withe entire records to the learned Sessions Judge, Mahalir Neethi Mandram (Fast Track Mahila Court), Thoothukudi, which was taken on file in S.C.No.187 of 2013.

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CRL. A(MD)NO.243 OF 2015

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The appellant/accused was furnished with the relied upon documents u/s 207 Cr.P.C and the case was committed to the Court of Sessions, which was thereafter made over to the Mahalir Neethimandran (Fast Track Mahila Court), Thoothukudi, and charges u/s 417, 420 and 376 IPC were framed. When questioned, the accused pleaded not guilty.

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To prove the case, the prosecution examined P.Ws.1 to 11, marked Exs.A-1 to A-8 and no material objects were marked. When the accused was questioned u/s 313 Cr.P.C. about the incriminating circumstances appearing against him, he denied the same as false. On the side of the accused, neither any oral evidence nor any documentary evidence was adduced.

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The trial Court, after hearing either side and after considering the materials, both oral and documentary, available on record, acquitted the appellant/accused in respect of the offences under Sections 376 and 420 IPC and convicted him for the offence under Section 417 IPC alone. Aggrieved by the said conviction and sentence recorded by the trial Court, the appellant/accused has filed the present appeal.

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10.Mr.K.Ganesan, the learned counsel appearing for the appellant/accused would submit that in the present case, initially, the appellant/accused was charged for the offence under Sections 417, 420 and 376 IPC, however, the trial Court acquitted the appellant/accused in respect of offence under Sections 420 and 376 IPC and convicted him only in respect of the offence under Section 417 IPC. He would further submit that in this case, P.W.1 is the victim and P.W.4 is the brother of the P.W.1 and P.W.5 is the maternal aunt. P.W.6 to P.W.9 turned hostile. Except the evidence of P.W.1, P.W.4 and P.W.5, no other independent witnesses were examined and all the three witnesses are interested witnesses and based on their evidence, the trial Court convicted the appellant/accused for the offence under Section 417 of IPC and accordingly, he prayed for acquitting the appellant/accused by allowing this criminal appeal.

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11.Per contra, Mrs.S.Bharathi, the learned Government Advocate (criminal side) appearing for the State would submit that the P.W.1 is the victim girl and her evidence is corroborated with the evidence of P.W.4 and P.W.5. Further, the appellant/accused was subjected for medical clinical examination for potential test and P.W.2 is the Doctor, who has given the certificate in respect of potential test and certified that the accused is a fit for sexual intercourse and P.W.3 is the Doctor, who conducted the clinical examination of the victim/P.W.1 and issued Ex.A5/ Accident Register stating that Hymen was absent and no bloodstains around / https://hcservices.ecourts.gov.in/hcservices/ regular edges. No signs of any acute rupture of hymen. However,

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CRL. A(MD)NO.243 OF 2015

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the trial Court acquitted the accused in respect of the offences under Sections 420 and 376 IPC, however, convicted the accused for the offence under Section 417 IPC. She would further submit that in the present case, the appellant/accused made a false promise to marry the victim/P.W.1 and had sexual intercourse with her and had collected 3½ sovereign gold and Rs.30,000/- for marriage expenditure and thereafter, he refused to marry her. The said act is clearly attracted under Section 417 of IPC and the trial Court had rightly convicted the appellant/accused, which cannot be interfered with, hence, she prayed for dismissal of the appeal.

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12.The issue arises for consideration in the present case is:(a) whether the appellant/accused cheated the victim /P.W.1 by making a false promise to marry her?

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13.A perusal of the records would show that the entire case is with regard to the evidence of P.W.1 and P.W.4 and P.W.5. P.W.1 in her evidence, deposed that she was aged about 20 years at the time of occurrence and she and the appellant/accused were working as Coolies in the brick kiln industry and they developed intimacy with each other. According to P.W.1/victim, the appellant/accused promised to marry her and she believing his statement had sexual intercourse with him. Further, a perusal of the evidence of P.W.1, it seen that P.W.1 already knew the fact that the appellant/accused is a married person and he has two children. Even thereafter, she continued sexual relationship with the appellant/accused, which itself shows that the consent was obtained by the appellant/accused. Hence, the trial Court has rightly acquitted the appellant/accused in respect of the offences under Sections 376 and 420 IPC. Further, the evidence also disclosed that the appellant/accused convinced the victim girl/P.W.1 as if his wife was deserted him, which was believed by the victim/P.W.1 who consented for sexual intercourse.

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14.Admittedly, the said occurrence was happened in the year 2011, however, the complaint was filed in the year 2013. There is no proper explanation for the delay in lodging the First Information Report in respect of intimacy developed in the year 2011, for which, the appellant/accused made a false promise to marry her and believing his words, she consented for sexual intercourse. P.W.2/Doctor has issued the certificate with regard to the potential capacity of the appellant/accused to have sexual intercourse. P.W.3/Doctor has opined that the victim/P.W.1 has undergone sexual intercourse for a period of six months. It is also relevant to mention that during the clinical examination, the victim/P.W.1 stated the Doctor/P.W.3 that she fell into the promise given by the appellant/accused to marry her and had sexual https://hcservices.ecourts.gov.in/hcservices/ intercourse. Hence, the P.W.3 evidence is corroborated with the

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CRL. A(MD)NO.243 OF 2015

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evidence of P.W.4 and P.W.5 and the prosecution clearly proved that the appellant/accused, by giving false promise to marry the victim/P.W.1, had sexual intercourse with her and subsequently, refused to marry her. Hence, the ingredients required under Section 417 IPC is clearly attracted and rightly, the trial Court convicted the accused, which need not be interfered with.

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15.The learned counsel appearing for the appellant/accused would submit that though the occurrence was committed in the year 2011, the accused already suffered more than three months of imprisonment and therefore, this Court may show leniency to the appellant/accused.

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16.In view of the above, the conviction passed by the Court below on the appellant/sole accused, for the offence under Sections 417 IPC is confirmed and the sentence alone is modified to the effect that the appellant/accused sentenced to undergo Rigorous Imprisonment for a period of six months together with a fine of Rs.5,000/-, in default, to undergo Rigorous Imprisonment for a period of six months for the offence u/s 417 IPC. Set-off, as ordered by the Court below under Section 428 Cr.P.C, is maintained.

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17.In the result, the Criminal Appeal is dismissed. It is reported that the appellant/sole accused is on bail. The bail bond executed by the appellant/sole accused shall stand cancelled and the trial Court is directed to take steps to secure the appellant/sole accused and send him to jail to undergo the remaining period of sentence as per this Judgment.

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skn

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To 1.The Sessions Judge, Mahalir Neethi Mandram, (Fast Track Mahila Court, Thoothukudi). 2.The Judicial Magistrate, Srivaikundam.

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CRL. A(MD)NO.243 OF 2015

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3.do through The Chief Judicial Magistrate, Thoothukudi.

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4.The Inspector of Police, Eral Police Station, Thoothukudi District.

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5.The Additional Public Prosecutor Madurai Bench of Madras High Court, Madurai.

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Copy to

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The Section Officer,Criminal Section, Madurai Bench of Madras High Court, Madurai. (2 copies)

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+1 CC to M/s.GANESAN, Advocate ( SR-11930[F] dated 16/03/2020 )

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JUDGMENT IN CRL. A(MD)NO. 243 OF 2015 13.03.2020.

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KG(CO) TR(24.06.2020)6P 9C

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Karmegam v. the Inspector of Police

Case brief

What is this about?

What did the court decide?

Karmegam v. the Inspector of Police

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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