P. Govindan Vs. the State by Inspector of Police - Court Judgment

Excerpt:
criminal - alteration of conviction - sections 366, 376 and 417 of indian penal code (ipc) - charges framed under sections 366, 376 and 417 of ipc and convicted under sections 366 and 417 of ipc by trial court - petitioner filed appeal before session court - appellate court convicted only under section 417 of ipc - hence, present petition by accused - held, letter of prosecutrix showed that she had sexual intercourse with petitioner willingly out of promiscuity - hence, petitioner acquitted - constitution of india article 141; [a.p. shah, c.j., f.m. ibrahim kaliffulla &v. ramasubramanian, jj] reference to larger bench - precedent - full bench decision held, it is binding on the division bench. only if the full bench comes to conclusion that earlier full bench decision is incorrect, there is scope for making reference to larger bench. division bench doubting correctness of full bench decision cannot direct registry for placing papers before chief justice to make reference to larger bench. p.r. shivakumar, j.1. this criminal revision case is directed against the judgment of the learned principal sessions judge, villupurarn (lower appellate judge) dated 16.12.2005 made in c.a. no. 39/2005 confirming the conviction recorded and sentence passed by the trial court (chief judicial magistrate/assistant sessions judge, villupuram) for an offence punishable under section 417 ipc in s.c. no. 64/2003.2. the petitioner herein was prosecuted before the trial court (court of chief judicial magistrate/assistant sessions judge), villupuram for alleged offences punishable under sections 366, 417 and 376 ipc. after trial, the learned assistant sessions judge, villupuram acquitted the petitioner herein/accused in respect of the third charge, namely the charge for an offence punishable under section 376 ipc. however, the trial judge held him guilty of the other two offences (offences punishable under section 366 ipc and 417 ipc) and sentenced him as follows:i) for the offence under section 366 ipc, the trial court imposed a sentence of rigorous imprisonment for a period of 7 years and a fine of rs. 3,000/- and a default sentence of six months simple imprisonment in case of default in payment of fine;andii) for the offence under section 417, a sentence of rigorous imprisonment for one year, without any fine, was imposed.3. as against the said judgment of conviction and sentence for the offences punishable under section 366 ipc and 417 ipc, the revision petitioner (accused) preferred an appeal on the file of the principal sessions judge, villupuram under section 374(3) of criminal procedure code. the learned principal sessions judge (lower appellate judge), after hearing, came to the conclusion that the conviction for the offence punishable under section 366 ipc could not be sustained and accordingly reversed the judgment of the trial court for the said offence, set aside the conviction and sentence and acquitted the revision petitioner herein/accused in respect of the said offence also. however, the learned principal sessions judge, villupuram concurred with the trial court regarding the charge for the offence under section 417 and confirmed the conviction and sentence thereof.4. aggrieved by and challenging the same, the revision petitioner herein/accused has preferred this criminal revision case on various grounds set out in the grounds of criminal revision case.5. this court heard the submissions made by mr. v. ayyadurai, learned counsel for the petitioner in the revision case and r. muniapparaj, learned government advocate (criminal side) representing the respondent herein. the materials available on record were also perused.6. the accused in s.c. no. 64/2003 on the file of the chief judicial magistrate/assistant sessions judge, villupuram who was convicted and sentenced as aforesaid by the trial court for an offence under section 417 ipc, which was confirmed in appeal by the lower appellate court (principal sessions judge, villupuram) is the petitioner in the criminal revision case. he was prosecuted before the chief judicial magistrate/assistant sessions judge, villupuram in s.c. no. 64/2003 for an offence under section 366, an offence under section 417 ipc and an offence punishable under section 376 ipc7. the prosecution theory proceeds as follows:the petitioner and the p.w. 1 - de facto complainant (both belonging to the same village by name poovalur) developed a love affair between them and they used to have meeting with each other very often. on 20.9.1998, at about 1.00 p.m. the petitioner took p.w. 1 to a nearby forest called t. athipakkam forest in the guise of having a discussion with her regarding their marriage. at about 5.00 p.m. against her will and without her consent, the petitioner had forcible sexual intercourse with p.w. 1. when she was crying after the said incident, the petitioner consoled her promising that he would definitely marry her. thereafter, for about three years, p.w.i was residing in a ladies' hostel at chennai and was pursuing her studies in the correspondence course for acquiring b.com. degree and was attending regular classes in accountancy leading to c.a. degree. while she was thus residing at chennai, the petitioner used to come over to chennai and meet her and on several occasions they had booked room in the lodges and had sexual intercourse. even after she completed her studies and went back to her native place, the petitioner used to have sexual intercourse with her giving out a promise that he would marry her. while so, on 25.9.2001 and 26.9.2001, p.w. 1 approached the petitioner along with pechiammal (the president of vazhutharetty women's association), panneer selvam (p.m.k. trade union leader), ramamurthy and karunakaran at the head office of tamil nadu transport corporation, villupuram, in which the petitioner was employed as conductor. petitioner admitted that he had sexual intercourse with p.w.i and agreed that he would marry p.w. 1. but, thereafter he went underground and he was not heard of pursuant to which, p.w. 1 lodged a complaint on 12.12.2001 on the file of thirunavalur police station, based on which a case was registered in crime no. 539/2001 on the file of the said police station for the above said offences.8. before the trial court, totally 12 witnesses were examined to prove the charges framed against the petitioner herein. the alleged victim (de facto complainant) was examined as p.w.i. ayyappan, balakrishnan, seetharaman and vadamalai who were examined as p.w. 2 to p.w. 5, did not support the prosecution case. hence they were treated hostile and cross-examined on behalf of the prosecution. but no answer favourable to the prosecution was elicited from them. p.w. 6 - devaki is the person who is alleged to have given asylum to p.w.i for about 10 days, who also made arrangements for the meeting of p.w. 1 with pechiammal, vazhutharetty women's association. the said president of vazhutharetty women's association was examined as p.w. 7. ramamurthy, yet another alleged mediator, was examined as p.w.8. the manager of sri venkateswara ladies hostel, chennai was examined as p.w.9. p.w. 10 and p.w. 11 are the medical officers. p.w. 12 is the investigating officer who conducted investigation and submitted the final report. ex.p1 is the complaint, ex.p2 and ex.p3 are the signatures found in the observation mahazar. ex.p4 to ex.p7 are the medical records. ex.p8 is the first information report. ex.p9 is the observation mahazar. ex.p10 is the rough sketch prepared by the investigating officer. ex.p11 and ex.p12 are the requisitions made by the investigating officer for medical examination of the petitioner and p.w.i. ex.d1 to ex.d3 are the letters written by p.w.i to the petitioner/ accused. they were marked as defence documents during the cross-examination of p.w.1.9. after going through evidence, the trial court, chose to hold the petitioner/accused not guilty of the alleged offence of rape punishable under section 376. the trial court also held that the case of the prosecution that the petitioner had sexual intercourse with p.w. 1 without her consent had not been substantiated and that p.w. 1 was a consenting party for such a sexual intercourse. however, for the other two offences, the trial court convicted and sentenced him as indicated supra. the lower appellate court, on a re-appreciation of evidence in an appeal preferred by the revision petitioner herein/accused, came to the conclusion that p.w.i was neither abducted nor kidnapped with the intention of forcing her or having knowledge that she will be forced against her will either to marry anybody or to have sexual intercourse with anybody. the learned principal sessions judge also held that p.w. 1, being a major, had volunteered to go with the petitioner/accused to have sexual intercourse with him and hence the learned principal sessions judge chose to reverse the judgment of the trial court regarding the charge for an offence punishable under section 366 ipc and acquit him of the said offence also.10. as against the acquittal of the petitioner herein for the offences punishable under sections 376 and 366 ipc, no appeal or revision has been preferred. therefore, the scope of the revision is limited to testing the correctness and legality of the conviction recorded for the offence punishable under section 417 ipc.11. the learned counsel for the petitioner relying on the judgment of the hon'ble supreme court in uday v. state of karnataka argued that, a prosecutrix deeply in love with the accused having sexual intercourse with him on a promise that he would marry her at a later date could not be said to have given her consent under misconception of fact; that such consent would be a valid consent to negative the criminality of the act of the accused and that the conviction of the petitioner/accused for the offence under section 417 ipc was unsustainable. also relying on the judgment of the calcutta high court in md. mahasin v. sayeda khatun bibi reported in ', the learned counsel for the petitioner argued that, if a fully grown up girl consented to the act of sexual intercourse on a promise of marriage and continued to indulge in such activities until she became pregnant, it was an act of promiscuity on her part and that the plea of cheating should be negatived in such cases.12. it is the further contention of the learned counsel for the petitioner that the evidence adduced, especially the letters written by the prosecutrix to the petitioner/accused marked as ex.d1 to ex.d3 would clearly establish that the prosecutrix happened to be a willing party to have sexual intercourse with the petitioner/accused and that on facts also the prosecution case regarding the alleged false promise to marry her should have been disbelieved.13. per contra, the learned government advocate (criminal side) contended that the judgment of the apex court cited by the learned counsel for the petitioner had no application to the case on hand in so far as the question involved in the said case before the apex court was - 'whether the consent given by the prosecutrix therein was one given under a misconception of the fact as contemplated in clause 4 of section 375 ipc?' - whereas the petitioner/accused in the case on hand was convicted by the trial court for a different offence, namely an offence of cheating punishable under section 417 ipc.14. section 375 ipc defines the offence of rape. as per the main clause a man is said to commit rape when he has sexual intercourse with a woman against her will or without her consent except in the circumstances falling under the exception appended to the said section. clause 3 of the said section makes the consent of the woman obtained by putting the woman or any person in whom she is interested in fear of death or injury, not a defence to the prosecution for the offence of rape. fourth clause of the section makes the consent of the woman not a defence if the woman's consent is given under a misconception that she was legally wedded to that man. specific instances vitiating valid consent as a defence in a prosecution for the offence of rape have been provided under clauses 3 to 6 of section 375 ipc. clause 4 deals with acts of a man having sexual intercourse with a woman with her consent when he knows that the said consent is given on an erroneous belief that he is the other man to whom she is legally married. while considering the applicability of the said provision to a case of rape, the hon'ble apex court observed that the prosecutrix who, knowing well that the accused therein was not the person to whom she was legally married, consented to have sexual intercourse with him and continued to meet him and often had sexual intercourse with him, albeit on a promise made by him to marry her on a later date, could not be construed to have given consent for such sexual intercourse under the misconception of fact referred to in clause 4 of 375 ipc.15. the said principle applicable specially to section 375 ipc cannot be extended to an offence under section 417 ipc. presence of consent will not take away an act outside the scope of section 417, which otherwise falls under the said section. the very definition of cheating under section 415 ipc will show that person allegedly cheated acts voluntarily but believing the promise made by the other person. section 415 reads as follows:415. cheatingwhoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to delivery an property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind reputation or property, is said to 'cheat'.16. for an offence under section 417 ipc, it shall be sufficient to induce the other person by deceit to do or omit to do anything which he / she would not do or omit to do if he/she is not so deceived. if one makes a promise without the idea of fulfilling such a promise and thereby induces other person to do or omit to do which he/she would not do or omit to do if not so deceived, then the offence of cheating becomes complete. therefore, this court has to accept the submissions made by the learned government advocate (crl.side) that the judgment of the apex court in uday v. state of karnataka does not have any application to the case on hand.17. so far as the judgment of the calcutta high court relied on by the learned counsel for the petitioner is concerned, of course the person prosecuted therein for an offence under section 417 ipc was at last acquitted by the said high court holding that there was no element of cheating. the learned single judge of the high court of calcutta, in the said case, was of the view that if there was no element of misconception of fact, then the offence under section 417 could not be made out. with due respect, this court is of the opinion that the said view does not reflect correct law in this regard. applying the observations made by the hon'ble apex court in uday v. state of karnataka regarding the factors vitiating the consent under clause 4 of section 375 with reference to a prosecution for an offence under section 376 ipc to a case of cheating under section 417 ipc, according to the considered view of this court, shall not be appropriate. the reasons are given in the foregoing discussions. apart from the same, it is to be noticed that in the said judgment, the calcutta high court, on facts found that there was no element of cheating.18. though the first two contentions raised by the learned counsel for the petitioner that in the absence of misconception of fact, a conviction for an offence under section 417 of ipc was bad and cannot be sustained, the third submission made by the learned counsel for the petitioner based on the facts seems to have some force and substance in it. according to the said submission made by the learned counsel for the petitioner, there are ample evidence to show that there could not be any false promise made by the petitioner/accused and that the prosecutrix voluntarily submitted herself to the sexual intercourse out of promiscuity. it is pertinent to note that the prosecutrix has gone to the extent of stating that she was sexually assaulted and subjected to sexual intercourse by the revision petitioner/accused without her consent and against her will. that is why the revision petitioner/accused was prosecuted for an offence of rape punishable under section 376 ipc also. the prosecutrix (p.w.i) also went to the extent of stating that she was abducted to the t. atthipakkam forest before such commission of rape. both the courts below have concurrently found that the charge of commission of rape was not substantiated. though the trial court might have chosen to convict the petitioner/accused for the offence under section 366 ipc, on a thorough re-appreciation of evidence, the lower appellate court chose to set aside the conviction for the said offence and acquit the petitioner herein/accused in respect of the said offence also. in the said background, we have to approach the question of proof of the other charge, namely the charge for an offence of cheating punishable under section 417 ipc.19. apart from the fact that there is an inordinate delay in lodging the complaint, there are more materials to show that it was the prosecutrix, who not only volunteered to have sexual intercourse with the petitioner/accused, but also invited him on several occasions for the said purpose even though she knew pretty well that both of them belonged to different communities and her parents would not welcome their marriage. in ex.p1 complaint itself, the prosecutrix has clearly stated that the petitioner/ accused and the prosecutrix loved each other and the petitioner was expressing his apprehension very often, even before the alleged act of intercourse, that the father of the prosecutrix would not agree for their marriage.(vernacular matter omitted...ed.)admittedly, the petitioner is a dobi by community and the prosecutrix is a chozhiya chettiar by caste. from ex.d1 to d3 - letters written by prosecutrix, it is very much clear that it was she, who was making frequent invitation to the petitioner/accused to come over to chennai and meet her while she was staying in a ladies' hostel. the said letters coupled with the evidence of p.w. 1 would go to show that she had the courage to go with him to the lodges to have sexual intercourse with him. but, curiously for none of the letters, the petitioner/accused seems to have replied in writing. in one such letter the prosecutrix had questioned him as to whether he was afraid of such a reply letter being used against him by the prosecutrix. she had also expressed her anguish over her inability to meet the petitioner/accused when she had gone to their native place for deepavali festival.20. it is revealed from ex.p1 that even before the alleged sexual intercourse between the petitioner and the prosecutrix for the first time, the petitioner had been expressing his apprehension that the parents of the prosecutrix would oppose their marriage. despite the said fact, the prosecutrix was having frequent sexual intercourse, according to her own version for a period of three years. the said act of having sexual intercourse with the petitioner could not be said to be pursuant to the false promise made by the petitioner/accused to marry her. on the other hand, the fact that the prosecutrix continued to have frequent sexual intercourse with the petitioner even after knowing that her parents would oppose their marriage, along with the further fact that she herself wrote letters to the petitioner asking him to come over to chennai and that on his arriving they even went to lodges and had sexual intercourse, would clearly show that the prosecutrix did have sexual intercourse with the petitioner willingly out of promiscuity. therefore, the finding of the courts below, that the petitioner/accused had cheated her by making a false promise to marry her and had sexual intercourse with her has got to be held erroneous.21. therefore, on facts, this court comes to the conclusion that the courts below have committed an error in coming to the conclusion that there was a promise made by the petitioner to marry the prosecutrix and that only believing such a promise, she consented for having a sexual intercourse with him. evidence to the effect that if at all the petitioner had not given such a promise, the prosecutrix would not have had sexual intercourse with him, is lacking. the above discussions will make it abundantly clear that the act of the prosecutrix in having sexual intercourse with the petitioner/accused has not been proved to be pursuant to any promise made by the petitioner to marry her.22. on the other hand, the same was nothing but an act of promiscuity on the part of the prosecutrix.23. therefore, the conviction for an offence of heating under section 417 ipc and the sentence imposed thereon do not withstand the scrutiny of this court and this court, does have no hesitation in setting aside the same.24. accordingly, the criminal revision case succeeds and the conviction recorded and the sentence imposed by the trial court and confirmed by the lower appellate court for the offence under section 417 i.p.c. is hereby set aside. the petitioner/accused is acquitted of the offence under section 417 also.25. consequently, the criminal miscellaneous petition is also closed.