The court allowed the criminal revision case and acquitted the revision petitioner from the charges levelled against him.
acquittal
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.03.2021
CORAM
THE HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA
Crl.R.C.No.204 of 2014
R.Subramani ... Petitioner
Vs.
State rep by Sub Inspector of Police Central Crime Branch Egmore, Chennai – 8 ... Respondent
Prayer: Criminal revision is filed under Section 397 and 401 of Cr.P.C. to call for the records and set aside the judgment of the Court below in C.A.No.215 of 2010 dated 28.11.2013 passed by the learned II Additional Sessions judge, Chennai in confirming the judgment dated 27.10.2010 passed by the learned Chief Metropolitan Magistrate, Egmore, Chennai in C.C.No.12002 of 2002.
For Petitioner : Mr.T.Surendran
For Respondent : Mr.T.Shanmugarajeswaran Government Advocate (Crl.side)
O R D E R
This criminal revision has been filed to call for the records and to set aside the judgments in C.A.No.215 of 2010 dated 28.11.2013 passed by the learned II Additional Sessions judge, Chennai confirming the judgment dated 27.10.2010 passed by the learned Chief Metropolitan Magistrate, Egmore, Chennai in C.C.No.12002 of 2002 finding the petitioner / accused guilty for the offence under Section 420 I.P.C (2 counts) and convicting him to undergo Rigorous imprisonment for one year (for each count) to run concurrently and to pay a fine of Rs.2,000/- in default to pay the fine to undergo simple imprisonment for three month.
2.The brief facts of the prosecution is that the petitioner / accused is a traffic police constable and he had befriended the defacto complainant / Subhashini. The petitioner / accused had told her that he had lost his wife and son in an accident and in the pretext of marrying her, induced her and had sexual intercourse with her and thereby she became pregnant. Further, the petitioner/accused had told the defacto complainant that he will get her a job as Typist in the Secretariat and received her 3¼ sovereign jewels and thereby cheated her and again the petitioner/accused had made a false representation to the father of the defacto complainant that he will get him the licence by tender for running a two wheeler and four wheeler parking at Fountain plaza, Egmore for which the defacto complainant's father / PW2 had handed over his pension book to the petitioner/accused and the petitioner/accused got a sum of Rs.17,000/- from the financier by pledging the same and the petitioner / accused did not get the licence and did not return the money thereby the petitioner had cheated them and committed the offence.
3.The complaint was given by the defacto complainant on 27.04.2001, the respondent after completion of investigation filed final report against the petitioner/accused for the offence under Section 420 I.P.C (2 counts). On appearance of the petitioner / accused, the trial Court framed charges against the petitioner / accused for the offence under Section 420 I.P.C (2 counts). On the side of the prosecution 15 witnesses were examined as PW1 to PW15 and exhibits Ex.P1 to Ex.P14 were marked. The case of the prosecution as unfolded from the evidence is that P.W.1 Subhashini is the victim girl, P.W.2 Perumal is the father of the victim girl and P.W.4 Thanjaiammal is the mother of the victim girl. P.W.1 had deposed that on 19.08.2000 her mother P.W.4 was admitted in the Egmore Eye Hospital for surgery. Since her father P.W.2 had a urinary problem she was attending to her mother. The accused was working as a traffic constable at Pantheon Road Junction and that he helped her in crossing the road and assisted P.W.2 in the hospital after getting information from P.W.1. Thereafter he had introduced one Maran in the hospital. On 01.09.2000 P.W.4 was discharged and after knowing the same, the accused met them at the bus stop and P.W.4 thanked the accused for his help. Thereafter, whenever P.W.4 came for periodical check up, the accused helped her and that one day the accused had come to the house of P.W.1. He was introduced to P.W.2 by P.W.4. Thereafter the accused used come to P.W.1's house. P.W.1 had further deposed that she had studied upto B.B.A, and completed the course in typing and I.T.I. The accused had represented that he will get a typist post to P.W.1 in the Secretariat and had taken her to P.A. to Minister. Thereafter the accused had demanded Rs.1 Lakh to get a job and she had informed about the
same to her parents. After discussing with each other in the family, they decided to give the amount. During September 2000 P.W.1 had paid Rs.20,000/- and within three days another sum of Rs.20,000/- was paid and further after three days another sum of Rs.10,000/- was paid. Thereafter, since no cash was available with them, they have offered to give the jewels and had told the accused that he can pledge the same. Accordingly, a double strand gold chain weighing 6 sovereigns, one saradu weighing 5 sovereigns belonging to the elder sister of P.W.1 was handed over to the accused. P.W.4 had also given another gold saradu. The accused had pledged the jewels at Tamil Nadu Industrial Cooperative Bank, at Thalamuthu Natarajan building, Egmore. The accused had not informed them how much cash he received by pledging their jewels. At the time of pledging the jewels P.W.1 accompanied the accused. Since the accused demanded further amounts, the elder sisters of P.W.1 viz. Vijay Mala and Latha gave their two gold aarams weighing 5 sovereigns and 5¼ sovereigns each and one necklace weighing 3 sovereigns and two stud and gimiki and the accused had not informed where those jewels were pledged and the accused had further demanded amount and when her father had informed that no further amount is available, the accused had insisted for further amount and some more jewels were also given to the accused. Thereafter, the accused told P.W.1 to wait for sometime and on 17.11.2000 the accused volunteered that he would purchase an auto for them and he had taken P.W.1 and her father to a financier residing at Kellys Road, behind Devi Theatre. Since the accused is a Government servant, he had purchased the auto bearing Reg.No.TN22J0312 in the name of P.W.1. P.W.1 had affixed her signature. Whereas, the accused himself had taken the auto. Thereafter since the accused did not pay the instalments, some persons had come to her house to seize the auto and she had informed that the auto was in the custody of the accused and later the financier had sent a letter to her stating that the auto has been seized by him. P.W.1 had further deposed that her father is an Ex-service man and that he is getting a pension and the accused had offered to take tender for licence to run a car and cycle parking lot at Fountain Plaza, Egmore and wanted cash for the same. Thereafter, the accused had taken P.W.2 to another financier at Ashok Nagar, near Udayam theatre, where the financier had retained the pension book of P.W.2 and paid Rs.11,900/-, the accused had received the same but the tender was not given to P.W.2 as promised. Since P.W.1 and her family members had questioned the accused, the accused had stopped visiting their house. In the meantime, from 20.08.2000 she had close relationship with the accused and that the accused under the pretext of taking her to Ashtalakshmi Temple at Adyar had taken her to his house in the police quarters and had made representation that his wife and his son died on a road accident on the way to Madurai and he wept and invited her to live
together with him but P.W.1 refused the same initially and thereafter she had given her consent and she went to the quarters of the accused and lived with him. Thereafter she had become pregnant and when she had informed it to the accused, he stopped meeting her and severed the connections with her. Thereafter, P.W.1 had delivered a male child on 17.05.2001 at Gosha Hospital, Chennai. P.W.1 had further deposed that since her two elder sisters were not married she had given the child in adoption and that she was not aware where the child was taken. Thereafter, she had given the complaint, Ex.P1. She had further deposed that she could not produce the child for D.N.A test as the whereabouts of the child were not known to her.
P.W.2 is the father of P.W.1, he had corroborated the evidence of P.W.1.
P.W.3 Thiru Nazeer Hussain, who is the Branch Manager at Tamil Nadu Industrial Co-Operative Bank at Egmore. He had deposed that the accused is a member of the Co-operative bank and his membership application is Ex.P2. His loan application dated 14.11.2000 in respect of loan No.906 for Rs.9,600/- is Ex.P3, his loan application dated 14.11.2000 in respect of loan No.907 for Rs.8,000/- is Ex.P4, loan application dated 22.11.2000 in application No.932 for Rs.5,500/- is Ex.P5.
P.W.4 is the mother of P.W.1 and she had corroborated the evidence of P.W.2 father of P.W.1.
P.W.5 Kanniappan is an appraiser in Tamil Nadu Industrial Co-Operative Bank at Egmore. He had deposed that he knew the accused and that on 07.09.2000 the accused had given a requisition for jewel loan for Rs.10,500/- and the same was sanctioned. The copy of the ledger in respect of the loan is Ex.P6. He had further deposed that the accused had pledged a double strand gold chain weighing 46.200 grams and he was accompanied with one 25 year old girl and further on 14.11.2000, the accused had applied for a jewel loan of Rs.8,900/- and the loan application is Ex.P7 and the ledger receipt in respect of the same is Ex.P8. Further, on 26.11.2000 the accused gave a loan requisition for Rs.5,500/- and the ledger receipt is Ex.P9.
P.W.6 Natarajan, who is the accountant in Tamil Nadu Industrial Co-operative Bank at Egmore. He had deposed that he had affixed his signature in the loan applications Ex.P2 to Ex.P5 and in jewel loan ledger sheets Ex.P6 to Ex.P9.
P.W.7 Jothi Bai, the Superintendent in the Commissioner Office, Chennai. She had deposed that she was looking after the building Section and that the accused was allotted with a quarters and the allotment order is Ex.P10.
P.W.8 Amar Stanley Anand, is the Sub-Inspector of Police in F2 Egmore Traffic Police Station. He had deposed that the accused was working as a constable under him in the traffic investigation from 05.05.1998 to 12.02.2001. Thereafter, he was working in the hackney carriage.
P.W.9 Balaji is a financier and that he had deposed that he
knew the accused and the accused had introduced himself as a police constable. He had further deposed that the accused had brought P.W.1 and P.W.2 during February 2000 and that P.W.2 Perumal was a pensioner and that P.W.2 had demanded a loan of Rs.17,000/- by pledging his pension book and that after obtaining Promissory note he had given a loan to P.W.2 by retaining his pension book. He had further deposed that P.W.2 had not repaid the amount and after 12 months during April 2001 P.W.2 demanded a further loan of Rs.17,000/- and he had refused to pay the amount. Thereafter, P.W.2 had repaid the loan amount and taken back the pension book and the promissory note.
P.W.10 Dr.Santha Sambandam, is the doctor working in Government Kasthuribai Gandhi Maternity Hospital, Chennai. She had deposed that on 17.05.2001 at 8.55 a.m. P.W.1 had delivered a male child in the hospital and she was discharged from the hospital on 20.05.2001. The case sheet of P.W.1 is Ex.P9.
P.W.11 Muralidaran, the Sub Inspector of Police at Egmore, F2 Traffic Police Station. He had deposed that the accused was posted at Escort point at Egmore from 8.00 a.m. to 12.00 noon and 4.00 p.m. to 8.00 p.m. and that after 12.15 p.m. the accused came to report before the police station and in the evening at 8.15 p.m. the accused came to report before the police station and he was sent for rest.
P.W.12 Dr.Selva Sundari, working in Egmore Eye Hospital. She had deposed that P.W.4 Thangaiammal was admitted in the hospital on 19.08.2000 for Acute Iridocyclitis and that she was discharged on 01.09.2000 after the surgery. The certificate issued by her is Ex.P12.
P.W.13 Thiru Kesavan, Sub Inspector of Police in Central Crime Branch, Chennai. He had deposed that he had served summons on the accused and P.W.1 for conducting D.N.A test and that the accused appeared, however, P.W.1 had not appeared. He had further deposed that the second time summons were issued to P.W.1 and she alone appeared and requested one month time for production of the child and thereafter she had not appeared.
P.W.14 Thiru Chinnasamy, Sub Inspector of Police working in Central Crime Branch. He had deposed that he had received the complaint from P.W.1 on 28.04.2001 and had registered the case in Crime No.288 of 2001 for the offence u/s.420 I.P.C. and the Printed F.I.R. is Ex.P13. He had deposed that he had taken up the case for investigation and examined the witnesses Subhashini, Perumal, Thanjaiammal, Nazeer Hussain, Kanniappan, Natarajan, Balaji, Jothi Bai, Selva Sundari, Amal Stantely Anand, Muralidaran, Shantha Sambandam and Malliga and obtained the medical certificate of Thanjai Ammal from the Eye Hospital, Egmore and the allotment order for allotment of police quarters at Teynampet to the accused and the loan application and other documents for pledging the jewels and the documents relating to the loan amount from the Tamil Nadu Industrial Co-Operative Bank at Egmore. He had further deposed that on 06.12.2001 the accused
had been arrested in front of his house at Chetpet and that he had sent him to judicial custody.
P.W.15 Vetri Cheziyan, the Inspector of Police in Central Crime Branch. He had deposed that he had taken up the case for further investigation and he recovered jewels purchase receipt from P.W.1 by recovery mahazar and that he had taken steps for conducting D.N.A test and that P.W.1 had not produced her child before the Court. He had further deposed after completing the investigation, he had filed the final report against the accused u/s.420 I.P.C.
4.On completion of evidence on the side of the prosecution, the petitioner/accused was questioned under Section 313 Cr.P.C., he denied the charges.
5.On the side of the petitioner/accused two witnesses D.W.1 and D.W.2 who are respectively the wife and mother of the accused were examined and Ex.D1 was marked through D.W.1. No material objects were marked. D.W.1 had deposed that she got married to the accused in the year 1981 and at the time of marriage she was gifted with gold jewels weighing 25 sovereigns by her parents and a lorry load of household articles were given to her and that P.W.1 and her father were known to them and that at the time of seeking alliance for the elder sister of P.W.1, P.W.1's family members had borrowed her jewels and thereby they were aware of the jewels belonging to her. The double strand gold chain was gifted by her maternal uncle Pasupathi and his wife Thilaga and one aarum is a new one and all other jewels are old ones and that she had pledged her jewels and given money for the marriage of her sister-in-law Rathi. She had further deposed that she was aware that despite summoning P.W.1 for D.N.A test, she had not appeared.
D.W.2 had deposed that the accused is her son and that she has got three daughters and two sons and that her youngest daughter Rathi got married in the year 2001 and the marriage invitation is Ex.D1. She had further deposed that she had taken the jewels belonging to her daughter-in-law and pledged them through her son and received money from them for conducting the marriage and that during the marriage they had received gift money and that her son had redeemed the jewels. The trial Court after hearing the counsel found the accused guilty for the offence as stated above.
6.As against the judgment of conviction and sentence, the petitioner/accused preferred C.A.No.215 of 2010 on the file of the II Additional Sessions Court, Chennai and the appellate Court by judgment dated 28.11.2013 dismissed the appeal and confirmed the sentence of conviction as stated above. Assailing the judgment of both the Courts below, the present revision has
been filed by the petitioner/accused.
7.Learned counsel for the petitioner submitted that both the Courts below failed to properly analyse the materials and evidence on record and that without there being any legal evidence on record have found the petitioner guilty for the offence as stated above. It is the case as per the prosecution the petitioner is stated to have induced the defacto complainant and committed sexual intercourse with her due to which she became pregnant and that the petitioner had cheated her. It is also the further case of the prosecution that the petitioner under the guise of obtaining a job for the defacto complainant had demanded money and taken money and thereafter pledged her jewels and taken money and cheated her by not getting job and further on the promise of getting a tender for two wheeler and four wheeler parking lot at Fountain Plazar, Egmore had received money from the defacto complainant and her father by pledging his pension book and cheated them. In this case, the petitioner is stated to have had sexual intercourse with the defacto complainant due to which the defacto complainant became pregnant and that she had delivered a male child. In this case to substantiate the charge of the petitioner that the petitioner had committed sexual intercourse with the defacto complainant, no evidence other than the evidence of defacto complainant has been let in. No medical evidence had been let in to prove that the petitioner had committed sexual intercourse. Further though it is the case of the prosecution that the defacto complainant had become pregnant and delivered a child, the petitioner was ready and willing to appear for D.N.A test whereas the defacto complainant despite summons being issued on her twice had wilfully evaded from producing the child for D.N.A test, thereby, drawing adverse inference against the case of the prosecution. It is the case where the prosecutrix is stated to have willingly submitted herself to sexual intercourse and waited for several months till delivery. In this case, though the prosecution is stated to be aware of the pregnancy, no steps have been taken to conduct D.N.A test to find out whether the child was born out of the relationship between the revision petitioner and the defacto complainant. The learned counsel would reiterate that stating that it is an admitted case of the defacto complainant that the petitioner stating that his wife and son passed away in an accident had sexual intercourse with her during December 2000 and she was five months pregnant. It is the admitted case of the prosecution that the defacto complainant had delivered a child on 17.05.2001. Though it was stated by P.W.1 that the child was given in adoption, no witnesses have been examined to prove that the child was given in adoption. The prosecution has wilfully evaded the best evidence, thereby creating an adverse inference. The Courts below failed to take into consideration the adverse inference
against the defacto complainant. Further it is the case of P.W.1 that the petitioner had taken her to his residential quarters allotted by the police department where he had committed sexual intercourse with her. Though P.W.7 has been examined to prove the fact that the quarters was allotted to the petitioner, none of the neighbours in the residential quarters have been examined to prove whether the petitioner had actually taken the victim to the quarters allotted to him. Further it is the evidence of P.W.15, the Investigating Officer that though the quarters was allotted to the petitioner, he could not confirm whether the keys of the quarters were handed over and actual possession of the quarters was handed over to the petitioner. Further, it is also the admitted case of the prosecution that the petitioner was arrested at Chetpet near his residence and that being so the prosecution has failed to prove that the petitioner was living at the quarters at Teynampet, Chennai and that he had committed sexual intercourse with the victim at the quarters allotted to him.
8.Learned counsel would further submit that in this case the petitioner is stated to have taken the jewels of the defacto complainant and her elder sisters on the pretext of getting job for her in the Secretariat and further the case of the prosecution is that the petitioner is stated to have cheated the father of the defacto complainant viz. P.W.2 for getting a licence on tender for running a two wheeler and four wheeler parking lot at Fountain Plaza, Egmore. In respect of the charge of obtaining job for P.W.1, the prosecution has examined P.W.3, P.W.5 and P.W.6. P.W.3, P.W.5 and P.W.6 have deposed that it is the petitioner who is a member of the Co-operative bank who had pledged his jewels and it is the admitted evidence of P.W.3, the Branch Manager of Tamil Nadu Industrial Co-operative Bank that the jewels were returned to the petitioner on 01.08.2001 which was much later to the registration of the case on 27.04.2001. If really the jewels had been that of the P.W.1, steps would have been taken to recover the jewels from the bank. Further it is the admitted case of P.W.3 that the petitioner is the person who had borrowed money by pledging jewels and thereafter after repayment of the loan amount had redeemed the jewels on 01.08.2001. The petitioner by examining the defence witnesses viz. D.W.1 and D.W.2 had proved that the jewels belonged to his family and that they were pledged for the marriage expenses of his sister which was scheduled on 14.02.2001 and they were redeemed after the marriage. The wedding invitation of the petitioner's sister was also marked as Ex.D1. The jewel loans were taken prior to the marriage and were redeemed after the marriage. Further in respect of the other allegations that the petitioner had received a sum of Rs.17,000/- by pledging the pension book of P.W.2 for getting the licence to run two and four wheeler parking lot at Fountain Plaza, Egmore, the
prosecution had examined P.W.9 Balaji, the financier. The trial Court erred in holding that since the petitioner had failed to cross examine P.W.9, the charge against the petitioner was proved. When P.W.9 had not implicated the petitioner, there is no requirement for the petitioner to cross examine P.W.9. P.W.1 had only stated that P.W.2 had come to his office along with the petitioner and his daughter P.W.1 during the month of December 2000 and that he had by pledging the pension book and executing promissory note taken the amount of Rs.17,000/- which was given for a period of 10 months. Further P.W.9 had deposed that P.W.2 had not repaid the amount properly and that he had after 12 months come for another loan and it was refused by P.W.9 and that after sometime paying the balance amount he had redeemed the pension book. P.W.9 had not stated anything that the loan was given to P.W.2 on the recommendation of the petitioner or that the petitioner stood as a guarantor for the loan. There was no need for the petitioner to cross examine P.W.9. In respect of the charge of having sexual intercourse by cheating, no other evidence has been let in by the prosecution other than the evidence of P.W.1. The learned counsel taking into consideration the entire evidence on record would further submit that the prosecution has not let in any legal evidence whereas the Courts below without properly analysing the materials on record and without there being any legal evidence to substantiate the charge on presumptions, assumptions and surmises found the petitioner guilty for the offence and would pray for setting aside the order.
9.In support of his contention, the learned counsel for the petitioner relied on the judgment of the Hon'ble Apex Court in Vijayan V. State of Kerala reported in (2008) 14 SCC 763.
10.Per contra, Mr.T.Shunmugarajeswaran, the learned Government Advocate (Crl.side) would submit that in this case, the prosecution has examined 15 witnesses and marked 14 documents and the prosecution has proved its case beyond reasonable doubt. He would further submit that the petitioner had cheated P.W.1 / victim and on false representation stating that his wife and son had met with an accident and died had taken the victim to his residential quarters allotted by the police department and committed sexual intercourse with her. He would further submit that the victim became pregnant and she had delivered a male child and since she had two elder sisters and they were unmarried, the child was given in adoption to some third party. However, he fairly conceded that no other witness other than P.W.1 had been examined to prove the sexual intercourse. He would further submit that though P.W.1 had failed to produce the child for D.N.A test, the birth of the child had been confirmed by the Doctor , P.W.10.
11.In reply, the learned counsel for the petitioner would submit that despite the order of the Court directing P.W.1 to produce the child she had purposefully evaded producing of the child for D.N.A test. Though P.W.10 has spoken about the birth of the child, no evidence had been let in to prove that the child was born out of the alleged sexual intercourse between the petitioner and P.W.1. Further if at all the jewels of the defacto complainant were pledged she would have taken the receipts and that despite cross examining on that aspect no proper explanation was given. Further it is the admission of P.W.1 that she knows the wife of the petitioner even during December 2000 and that she had admitted that she had relationship with the petitioner on her own desire and thereby the charge of inducement for sexual intercourse can also not be sustained.
12.Heard the counsels. Perused the material on record.
13.This Court is aware of the fact that the Revisional Powers of this Court u/s.397 and 401 Cr.P.C. are limited. However, this Court is entitled to revise the findings of the Courts below when it reaches to the conclusion that the finding of the Courts below is perverse and when it is not based on legal evidence.
14.It is the case of the prosecution that the petitioner in the guise of helping the mother of P.W.1 befriended her and later falsely representing to her that his wife and son died in an accident had sexual intercourse with her due to which P.W.1 became pregnant and delivered a child. It is the case of the P.W.1 / victim / defacto complainant that the complaint was made on 27.04.2001 and that she delivered the child on 17.05.2001. Admittedly in this case for the charge of having committed sexual intercourse by false representation of cheating, the prosecution has examined only P.W.1. Though as per P.W.1 that she became pregnant and delivered a child, she had evaded from producing the child for D.N.A test despite summoning by the Investigating Officer pursuant to the Court order. If the allegations of P.W.1 are true, she would have been produced the child for D.N.A examination. The petitioner had appeared twice and expressed his willingness for D.N.A test, whereas P.W.1 had stated that the child was given in adoption. Further in this case no medical examination of the petitioner or the victim P.W.1 had been examined to prove that the petitioner committed sexual intercourse with her.
15.In this case, non production of the child by P.W.1 causes adverse inference against P.W.1. Though it has been stated by P.W.1 that the child was given in adoption no witnesses have been examined to prove the same. The prosecution has failed to
recover the child or examine witnesses to prove that the child was given in adoption, thus, creating adverse inference against P.W.1. The offence is stated to have committed during the month of December 2000 and the complaint was given on 27.04.2001 and P.W.1 is stated to have delivered the child during the month of May 2001 viz. 17.05.2001 and there had been a long delay in the complaint. Further other than P.W.1 / victim nobody else had been examined to speak about the alleged sexual intercourse.
16.Though it is not a case of rape and it is only a case of committing sexual intercourse by false representation and cheating, taking into consideration the facts of the present case, it is apposite to refer to the the judgment of the Hon'ble Apex Court in Vijayan V. State of Kerala reported in (2008) 14 SCC 763, wherein the Hon'ble Apex Court has held
“5. The present case wholly depends upon the testimony of the prosecutrix. The incident in the present case took place seven months prior to the date of lodging the complaint as a realisation dawned upon her that she has been subjected to rape by the appellant-accused. No complaint or grievance was made either to the police or the parents prior thereto. The explanation for delay in lodging the FIR is that the appellant-accused promised her to marry therefore the FIR was not filed. In cases where the sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR for rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the inc dent, there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix has willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony. Moreover, no DNA test was conducted to find out whether the child was born out of the said incident of rape and that the appellant-accused was responsible for the said child. In the face of lack of any other evidence, it is unsafe to convict the accused. Therefore, we are of the opinion that the view taken by the trial court and the learned Single Judge of the High Court in convicting the appellant-accused under Section 376 IPC cannot be sustained. Consequently, we set aside the judgment and order of the trial court as also of the High Court and quash the conviction and sentence of the appellant-accused under Section 376 IPC. The accused may be released forthwith from
custody if not required in any other case”.
17.Further in Mani @ Manikandan V. State by Inspector of Police, Chennai reported in (2019) 2 MLJ (Cri)596, this Court has held
“44.Another issue which was left out to be proved by the Prosecution is that the Appellant / accused was respondent for the pregnancy of the victim. A positive result of the DNA Test would have constituted clinching evidence against the Appellant / accused. As per the medical evidence, the foetus was five months old and the sex of the foetus was determined as male. There was ample opportunity for conducting DNA Test of the foetus and subjecting the Apppellant / accused for DNA analysis to prove the paternity of the child. In the caseon hand, DNA Test was not done, which is fatal to the case of the Prosecution. If a DNA Test would have been done, there would have been some clinching evidence, favouring the Prosecution.
Thus this Court comes to the conclusion that the prosecution has failed to prove the charge of sexual intercourse by cheating.
18.Now coming to the evidence of pledging jewels and borrowing money, the prosecution has examined P.W.3, P.W.5, P.W.6 and P.W.9. P.W.3, P.W.5 and P.W.6 are the officers of Tamil Nadu Industrial Co-operative Bank. Perusal of evidence shows that nothing has been elicited by the prosecution to clinchingly prove that the jewels are belonging to P.W.1 or her family members. When such being so, the petitioner cannot be stated to have cheated the victim.
19.Further, though the complaint is stated to have been given during April 2001 and the case having been registered immediately, it is the case of P.W.5 that the accused redeemed the jewels in the month of November 2001 after paying the entire amount. The circumstances leading to the pledging of jewels and its redemption by the petitioner has been proved by the revision petitioner by examining D.W.1 and D.W.2 and marking of document Ex.D1. Further in this case though the jewels were stated to be very much available with Tamil Nadu Industrial Co-operative Bank, the Government of Tamil Nadu undertaking, the respondent police had not taken any steps to recover the same. If only they belong to the defacto complainant / P.W.1, police would have been taken steps to recover the same. Further though some of the jewels were stated to belong to the sisters of P.W.1 they have not been examined in this case. No evidence had been let in by the prosecution to prove that the jewels belonged to P.W.1 and her family members.
20.Further, the trial Court had held that the petitioner had not cross examined P.W.1 and thereby he had accepted the case of the prosecution. Perusal of evidence of P.W.9, does not disclose anything worthwhile other than the petitioner having accompanied P.W.1 and P.W.2. Even as per evidence of P.W.9 it is P.W.2 who had pledged his pension book and borrowed the amount of Rs.17,000/- after executing a promissory note and P.W.9 had further stated that P.W.2 had come to his house and asked for a further loan by depositing his title deeds and he had refused to give further loan. Reading of evidence of P.W.9 does not disclose anything incriminating against the petitioner.
21.Taking the evidence into entirety, the prosecution has failed to prove the charges against the petitioner beyond all reasonable doubts. The Courts below without properly analysing the evidence on record but on mere presentations and assumptions had convicted the petitioner.
22.As stated above, in the present case on hand, a careful reading of the evidence on record clearly shows that there is no legal evidence against the petitioner from which it can be conclusively inferred that the petitioner had cheated the defacto complainant and her family members. The prosecution has failed to prove the case beyond reasonable doubt.
23.Golden rules of criminal jurisprudence are that suspicion however grave cannot take the place of proof and more graver the offence the prosecution has to prove the guilt of the accused beyond all reasonable doubts and both the Courts below cannot convict the accused on mere surmises and presumptions.
24.In the light of the decisions referred to above and in view of the above discussions and reasons and on an overall analysis of the evidence placed on record, having regard to the probabilities of the case, this Court is of the considered view that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt and the trial Court in a case lacking legal evidence has rendered a perverse finding and the appellate Court without carefully analysing the evidence on record committed a grave error by confirming the same. Therefore, the impugned judgment of conviction and sentence of the Courts below liable to be set aside and consequently the revision petitioner is entitled for acquittal.
25.In the result, the Criminal Revision Case stands allowed and the conviction and sentence imposed by the learned II Additional Sessions Judge, Chennai in CA.No.215 of 2010 dated 28.11.2013 confirming the judgment dated 27.10.2010 passed by the learned Chief Metropolitan Magistrate, Egmore, Chennai in C.C.No.12002 of 2002 are hereby set aside. The Revision
petitioner is acquitted from the charges levelled against him. The bail bond, if any executed by the Revision petitioner shall stand cancelled and the fine amount, if any paid by the Revision petitioner, shall be refunded to him.
Sd/Assistant Registrar //True Copy// Sub Assistant Registrar
kas To 1 II Additional Sessions Judge Chennai 2.The Chief Metropolitan Magistrate Egmore Chennai. 3.The Public Prosecutor High Court of Madras Chennai 600 104 4.The Sub Inspector of Police, Central Crime Branch, Egmore, Chennai. +3cc to Mr.T.Surendran, Advocate, S.R.No.17000 Crl.RC.No.204 of 2014 LN(CO) CB(14/07/2021)
2 issues framed by the court
Whether the prosecution has proved the charge of cheating beyond reasonable doubt?
Whether the courts below have erred in convicting the petitioner?
Colour shows how this judgement treated each authority
Vijayan V. State of KeralaRelied on¶16
Vijayan V. State of Kerala reported in (2008) 14 SCC 763 · Who else cites this
Mani @ Manikandan V. State by Inspector of Police, ChennaiRelied on¶17
Mani @ Manikandan V. State by Inspector of Police, Chennai reported in (2019) 2 MLJ (Cri)596
2 provisions across 2 enactments
R.Subramani
State rep by Sub Inspector of Police Central Crime Branch Egmore, Chennai – 8
A.D.Jagadish Chandira
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
