Appeal against conviction for cheating Section 417 IPC. Court allowed appeal, acquitted appellant, and set aside sentence, holding consent resulted from love and acquaintance, not false promise.
Appellant acquitted of Section 417 IPC charge; conviction and sentence set aside; bail bond discharged; fine refunded.
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.
Crl.A.No.653 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.12.2023
CORAM :
THE HON'BLE MR.JUSTICE SUNDER MOHAN
Crl.A.No.653 of 2017
Thennarasu
.. Appellant / A1
v.
State rep. by The Inspector of Police, All Women Police Station, Villupuram. (Crl.No.10/2015)
.. Respondent/complainant
Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure, 1973, to call for the records in connection with S.C.No.163 of 2016 on the file of the learned Sessions Judge, Mahalir Neethi Mandram [Fast Track Mahila Court], Villupuram and set aside the conviction and sentence imposed in judgment dated 26.09.2017.
For Appellant : Mr.S.Saravana Kumar
For Respondent : Mr.A.Gokulakrishnan Additional Public Prosecutor
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JUDGMENT
This Criminal Appeal has been filed by Accused No.1, challenging the conviction and sentence imposed upon him vide judgment dated 26.09.2017 in S.C.No.163 of 2016, on the file of the learned Sessions Judge, Mahalir Neethi Mandram (Fast Track Mahila Court), Villupuram.
2 (i) It is the case of the prosecution that the brother of the victim and
the appellant/A1 were friends and that the appellant used to come to the house of the victim to meet her brother; that because of the frequent visits to the house, the victim and the appellant became close to each other; that the appellant promised the victim that he would marry her and had sexual intercourse; that when the victim asked the appellant and his parents to make arrangements for the marriage, they refused stating that the victim was not educated; and that further, threatened her of dire consequences, if she insisted on getting married with the appellant.
(ii) It is the further case of the prosecution that on 28.04.2015, the victim gave complaint [Ex.P1] to the Inspector of Police, All Women Police Station, [PW11] and a case was registered in Cr.No.10 of 2015 for the offence
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punishable under Sections 417, 376 and 506(i) IPC, against the appellant and his parents. FIR was marked as Ex.P9.
(iii) After registration of the FIR, PW11 commenced the investigation and examined the witnesses. She arrested the accused on 28.04.2015 at about 9pm. On 29.04.2015, PW11 gave the requisition letter for sending the accused and the victim for medical examination. The said requisition letter was marked as Ex.P10. On 29.04.2015, PW11 proceeded to the place of occurrence and prepared the Observation Mahazar (Ex.P2) and Rough Sketch (Ex.P11) in the presence of the witnesses. Thereafter, she went to the house of the appellant and prepared the observation mahazar (Ex.P12) and Rough Sketch (Ex.P13). She thereafter examined the other witnesses on 10.05.2015. She examined the doctors who had examined the victim and the appellant.
(iv) Thereafter, PW11 handed over the investigation to PW12 who laid the final report after the completion of the investigation in PRC No.25 of 2015 before the learned Judicial Magistrate No.I, Villupuram, as against all the accused under Sections 376 and 417 of IPC.
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(v) On appearance of the appellant/A1 and other accused, the provisions of Section 207 Cr.P.C. were complied with and the case was committed to the Principal Sessions Judge, Villupuram and thereafter, transferred to the Sessions Court, Mahalir Neethi Mandram [Fast Track Mahila Court], Villupuram, in S.C.No.163 of 2016, for trial. The trial Court framed charges u/s.376 and 417 of IPC as against appellant/A1 and u/s.506(i) of IPC as against accused 2 and 3, the parents of the appellant and when questioned, the accused pleaded 'not guilty'.
(vi) To prove the case, the prosecution examined 12 witnesses and marked 15 exhibits. When the appellant and other accused were questioned u/s.313 Cr.P.C. on the incriminating circumstances appearing against them, they denied the same. No witness was examined on the side of the appellant or other accused, nor any document marked.
(vii) On appreciation of oral and documentary evidence, though the trial Court acquitted the appellant/A1 for the offence under Sections 376 and A2
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and A3 for the offence under Section 506(i) of IPC, convicted the appellant/A1 for the offence under Section 417 IPC and sentenced him to undergo rigorous imprisonment for one year and pay fine of Rs.50,000/- in default to undergo Simple Imprisonment for three months. Hence, the A1 has preferred the appeal challenging the said conviction and sentence.
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the trial Court after considering the oral and documentary evidence found the appellant not guilty of the offence under Section 376 of IPC and had rightly held that the appellant had deceived the victim, thereby induced her to have sexual intercourse with him and accordingly, convicted him for the offence under Section 417 of IPC. Therefore, the learned Additional Public Prosecutor submitted that no interference is called for with the finding of the trial Court.
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by the appellant. The other witnesses viz., PW2, PW3 and PW4 are hearsay witnesses. PW1, had admitted in her deposition that she was closely acquainted with the appellant. Though, she has stated that appellant had compelled her, she admits that she was in love with the appellant. The relevant portion are extracted hereunder for better understanding.
“mof;fo 1k ; vjphp vd;id tw;g[Wj;jp te;jjhy; ehDk; mtiu fhjypj;J te;njd;/”
Thereafter, PW1 would state that the appellant forced her to have sexual intercourse and that she had sexual intercourse with the appellant on more than four or five occasions; that the said relationship was known to the neighbours and thereafter, when she asked the appellant to marry her, he refused stating that she was not educated.
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“21. … There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.”
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that he would marry the victim, the consent cannot be said to be only due to
the alleged false promise. The consent was due to her close acquaintance with the appellant and therefore, for the aforesaid reasons, the finding of the trial Court holding the appellant guilty for the offence under Section 417 of IPC, is liable to be set aside.
07.12.2023
Index : yes/no Neutral citation : yes/no ars
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To
SUNDER MOHAN,J.
ars
Crl.A.No.653 of 2017
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07.12.2023
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2 issues framed by the court
Whether an offence of cheating is made out when the prosecutrix was in love with the appellant and the relationship was already known to the neighbourhood.
Whether a finding of guilty under Section 417 IPC is liable to be set aside when consent was due to close acquaintance rather than misrepresentation.
Colour shows how this judgement treated each authority
Deepak Gulati v. State of HaryanaReferred¶60
(2013) 7 SCC 675 · Who else cites this
2 provisions across 2 enactments
Thennarasu
State
Sunder Mohan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
