Allowed

K.Anjali, F/a 52 Yrs v. the Inspector of Police

Madras HC18 Nov 2021CRL RC/1330/2014

Case brief

AI extract

What is this about?

In a criminal revision against an order of discharge dismissal, the High Court discharged petitioners accused of abetment in rape and cheating cases due to lack of material evidence, noting the trial court wrongly failed to examine sufficiency of evidence for charge framing.

What did the court decide?

Petitioners/Accused Nos.2, 4 to 6 discharged from offences; Second Respondent name and Police Station identity redacted.

K.Anjali, F/a 52 Yrs Vs the Inspector of Police — Criminal Trial and Appeal | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 18.11.2021

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CORAM :

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THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

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CRL.R.C.NO.1330 OF 2014 AND M.P.NO.1 OF 2014

1.K.Anjali

2.A.Arul

3.A.Jayanthi

4.Palaniammal

5.K.Bharathi

6.A.Johnselvaraj

.. Petitioners/Accused 2 to 7

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Versus

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State rep. by its The Inspector of Police, All Women Police Station, AAA District. (District name is redacted) (Crime No.12 of 2012)

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.. 1^st Respondent/Complainant

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Mrs. X (Respondent's name is redacted) .. Respondent (R2 is suo-motto impleaded as per the order in Crl.R.C.No.1330 of 2014, dated 12.11.2021)

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Prayer : Criminal Revision Case is filed under Sections 397 and 401 of Cr.P.C., against the order made in Crl.M.P.No.246 of 2013 in S.C.No.46 of 2013 dated 11.07.2014 pending on the file of the learned Mahila Court Judge, Perambalur.

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For Petitioners : Mr.C.D.Johnson For R1 : Mr.L.Baskaran Government Advocate (Crl.Side)

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https://hcservices.ecourts.gov.in/hcservices/

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ORDER

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This Criminal Revision Case in Crl.R.C.No.1330 of 2014 is filed by the petitioners/accused 2 to 7, who are standing trial in S.C.No.46 of 2012 before the Mahila Court, Perambalur, aggrieved by the order of the learned Mahila Court Judge, Perambalur in C.M.P.No.246 of 2013 in S.C.No.46 of 2013, whereby, the petition filed by the petitioners to discharge them from the case, under Section 227 of the Code of Criminal Procedure was dismissed.

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Today, when the matter came up for hearing, it was submitted by the learned Counsel for the petitioner and was confirmed by the learned Government Advocate (Crl. Side), appearing on behalf of the prosecution that the second petitioner herein namely, A.Arul, who is the third accused in the case and sixth petitioner herein namely, A.Johnselvaraj, who is the seventh accused in the case have, since, died pending the Criminal Revision and as such, the above case itself stands abated against them. The same is recorded and the petition, in respect of second and sixth petitioner, is dismissed, as they are dead and the case itself having abated as against them.

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As far as the other petitioners are concerned, Mr.C.D.Johnson, learned Counsel appearing for the petitioner would submit this is a case where the prosecution is charging the first accused namely, one Babu, son of Kannan to have developed a relationship with the defacto complainant herein and it is alleged that he has promised to marry the defacto complainant/second respondent herein and had sexual intercourse with her and had even lead her to terminate the pregnancy, on two occasions. Therefore, even, while charging him for the offences under Sections 376, 417 of the Indian Penal Code, the petitioners herein, who are the accused Nos.2, 4 to 6 therein are also charged for the offences under Sections 417, 420, 376, 294-B, 312, 506(i) read with 109 of the Indian Penal Code. According to the learned Counsel, even assuming of the allegations contained in the final report and the statements of the listed witnesses 1 to 18 as true and the contents of the other documentary evidence as correct, still there is absolutely no iota of material whatsoever against the petitioners and the witnesses speak only against the first accused. There are only two statements, which are made relating to the other accused. Firstly, the victim, LW.1, in her statement states that the first accused, Babu, along with his uncle, Arul and his uncle's wife, Jayanthi, sent him to Tittakudi for aborting the fetus.

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The exact statement reads as follows:-

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https://hcservices.ecourts.gov.in/hcservices/

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“///fu;g;gkhdij bjupe;J bfhz;l ghg[ vd;dplk; eat";rfkhf ngrp mtUila rpj;jg;gh. mUs;. rpj;jp b$ae;jpa[ld; jpl;lf;Fof;F mDg;gpitj;jhu;/ mtu;fs; vd;id 15/07/2006?y; njjp n$hjp lhf;lhuplk; miHj;J brd;W fUit. fiyj;J tpl;lhu;fs;///”

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Thereafter, once again, she further stated that when she was getting back to her home on 01.07.2012, evening at about 5.30 P.M, the first accused, Babu, and his brother, Bharathi and Babu's uncle waylaid her and Babu shouted at her, by calling her as prostitute and that she cannot deter them by keeping cases and if she continues to create problems, she will be killed.

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The exact statement reads as follows:-

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“ //// new;W 01/07/2012 khiy 5/30 kzpastpy; ehd; btspna brd;W tpl;L jpUk;gp te;J bfhz;L ,Ue;j bghGJ vd; tPl;ow;F Kd;g[wk; ghg[. mtuJ jk;gp ghujp. ghg[tpd; rpj;jg;ghf;fs; vd;id tHpkwpj;J vd;do njtoah kUe;bjy;yhk; Foj;J v';fis gaKWj;jKoahJ eP vd;d gz;zpdhYk; tHf;F bfhLj;jhYk; cd;id ghg[ fl;of;bfhs;s khl;lhd;/ kPwp vd;id bjhe;jut[ bra;jhy; cd;id bfhiy bra;JtpLntd; vd;W kpul;odhu;fs;////” (emphasis supplied)

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The same statement is verbatim repeated by PW.2, Kaliya Perumal. Apart from the same, there is no iota of material against the petitioner. Even a careful perusal of the above statement concerned make it clear that there is not even reference to the accused Nos.2 and 5 and even the threat, alleged to have been made, only by the first accused and there is no material to even make the accused stand trial for the offences alleged.

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The learned Government Advocate (Crl.Side), on the other hand, pointed out that on the earlier occasion, on his submissions, this Court has impleaded the defacto complainant herself, since, the matter relates to the offences against women involving Sections 417 and 376 of the Indian Penal Code and accordingly, the defacto complainant/respondent No.2 herself is present before this Court. He would further submit that the Court may hear the second respondent herself and decide accordingly, even while supporting the order of the learned Magistrate Court impugned in this Revision Case.

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The second respondent appearing in person submitted that both she and the first accused have moved on in life, she has married to a third person and she is leading a happy married life and has got a child and she does not in any manner wish to perceive the case. She further, would fervently plead before this Court that even to attend the Court as a witness in this

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https://hcservices.ecourts.gov.in/hcservices/

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case would cause her great embarrassment and would even lead hiccups in her matrimonial life and submitted that the continuance of the case would be victimizing her for the second time for no fault of her.

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I have considered the rival submissions made on behalf of the parties and gone through the charge sheet and the materials on record. At the outset, though the second respondent/victim pleaded to drop the case itself, in my considered view that even though due weightage and senstivity would be given to the statements of the second respondent/victim, the Hon'ble Supreme Court of India in State of Madhya Pradesh Vs. Madanlal¹ , has held that in the offences relating to Sections 376 or 417 of I.P.C, it would not be correct and prudent to take a decision merely on the will of the victim to withdraw the case or any compromise between the parties. But, however, duly accepting the submissions of the second respondent/victim in order to prevent any kind of embarrassment or further victimisation, it would be just and necessary that apart from the name of the victim herself, as well as the identity of the Police Station is also redacted accordingly that even in the original, order to be hosted in the website.

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Now, considering the case on merits, admittedly, this is a case of promising to marry and having intercourse. The petitioners herein, being the accused Nos.2 to 7, are roped in only on the allegation of abetment. Even regarding abetment, there is no any statement regarding the first petitioner, Anjali, the fourth petitioner, Palani Ammal, in this case. Therefore, there is absolutely no material to proceed against them in this case, so as to make them answer any charge or make them to stand trial. As far as the third petitioner, Jayanthi is concerned, her name is mentioned in the first statement referred above that she along with her deceased husband, also sent the second respondent to Tittakudi to one Dr.Jyothi for terminating pregnancy. In this regard, the learned Counsel also pointed out that the statement of the said Dr.Jyothi, who is also cited as L.W.6, denying any such incident.

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Similarly, in the second statement also, it would be clear that it is only the first accused, Babu, who made the threat, it will be clear from the words “kPwp vd;id bjhe;jut[ bra;jhy; cd;id bfhiy bra;JtpLntd; vd;W kpul;odhu;fs;” (emphasis supplied). Therefore, there is absolutely no other material to make the petitioners to stand trial.

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1 (2015) 7 SCC 681

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Considering the nature of the offences, considering the statement made by the second respondent and considering the reasoning given by the Trial Court, which had dismissed the petition by the sole reason given in paragraph No.6 that the same should be decided only after trial, I hold that the reasoning given in the Trial Court is incorrect in law. Since a specific plea has been raised in the discharge petition, the Trial Court ought to have adverted as to whether there is any material at all to frame the charge and without even undertaking the said exercise, the discharge petition has been dismissed.

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For the reasons stated above, I am of the opinion that there are no adequate materials even to frame the charges against the petitioners /accused Nos.2, 4 to 6 and no useful purpose would be served by making them to stand trial and this Criminal Revision Case is allowed. The petitioners/accused Nos.2, 4 to 6 shall stand discharged from the offences alleged against them in S.C.No.46 of 2013 on the file of the learned Mahila Court Judge, Perambalur.

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