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PALANI .. REV versus STATE THROUGH THE INSPECTOR OF POLICE

High Court of Madras

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Palani .. Rev v. State through The Inspector of Police - Criminal RC.No.102 of 2006 [2007] RD-TN 1454 (13 April 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 13/04/2007

CORAM

THE HONOURABLE MR. JUSTICE P. MURGESEN

Criminal RC.No.102 of 2006

Palani .. Revision Petitioner Vs

State through The Inspector of Police,

All Women Police Station,

Thirupparankundram.

In Crime No.23 of 1999 .. Respondent Revision filed under section 387 of Cr.P.C., to set aside the conviction and sentence passed in C.C.No.323/2000 on the file of the Judicial Magistrate No.VI, Madurai dated 30.5.2005 which was confirmed by the learned Additional District and Sessions Judge/Fast Track Court No.III, Madurai, in C.A.No.118/2005 dated 20.1.2006.

For Petitioner .. Mr.T.K.Gopalan

For Respondent .. Mr.S.Iyyappan, GA, Crl.Side :ORDER



The revision is directed against the judgment of the learned Additional and District Judge/Fast Track Court No.III, Madurai, in C.A.No.118/2005 confirming the judgment of the learned Judicial Magistrate No.VI, in C.C.No.323/2000.

2.The prosecution case is briefly as follows: (a)P.W.1, Parvathi, is the resident of Theppapatti. She is the daughter of P.W.2 and P.W.4. The land of the P.W.1/complainant and the land of the accused is situated nearby. P.W.3 is the relative of the complainant. The accused loved P.W.1 and promised to marry her and thereby, had intercourse with P.W.1. Finally, P.W.1 became pregnant. When the matter that P.W.1 was pregnant, was informed to the accused, the accused demanded 5 sovereigns of gold and Rs.5,000/- cash in the presence of P.W.3. A complaint was preferred to Thirupparangundram All Women Police Station. P.W.7, the Inspector of Police of All Women Police Station, Thirupparangundram, received the complaint and registered a case in Crime No.23/99 under Section 417 of IPC. Ex.P.4, is the printed F.I.R. P.W.7 arrested the accused on 10.11.1999 at 15.00 hours and sent the accused for judicial custody. P.W.7, the Inspector of Police, All Women Police Station, sent the complainant/P.W.1 and the accused for medical examination.

(b)P.W.5, Dr.Bala Abirami, Assistant Surgeon in Rajaji Government Hospital, examined P.W.1 and issued Ex.P.2 and has opined the following: "1.The victim girl is fit to have sexual intercourse.

2.There is evidence to say that the victim girl had involved in intercourse frequently-Hymen absent, ureterous easily admits fingers.

3.The victim girl is at present pregnant." P.W.6, Dr.Thiyagarajan, examined the accused and issued Ex.P.3 and has opined the following:

"The person is normal physical and mental development as per his age stated. Nil marks of violence or injuries or foreign bodies seen on his body or private parts. Nothing to suggest he is impotent." (c)P.W.8, the Sub Inspector of Police, took up the case for investigation and completed the investigation and filed a charge sheet under Section 417 of IPC and Section 4 of the Dowry Prohibition Act.

(d)Before the Trial Court, P.Ws.1 to 8 were examined and Exs.P.1 to 4 were marked. The respondent/revision petitioner has not chosen to examine any witness or adduce evidence on his side.

(e)Considering the evidence on record, the learned Judicial Magistrate No.VI, Thirupparangundram, found the accused guilty under Section 417 of IPC and awarded 6 months simple imprisonment with a fine of Rs.1,000/- and in default to undergo three months simple imprisonment.

(f)Aggrieved over the judgment of the learned Judicial Magistrate No.VI, Madurai, he preferred an appeal before the learned Additional District and Sessions Judge cum Fast Track Court, Madurai, in CA.No.118/2005. The learned Appellate Judge dismissed the appeal preferred by the accused/revision petitioner. Challenging the judgment of the learned Appellate Judge, the present revision is filed.

POINT FOR DETERMINATION:

"Whether this revision is maintainable?" POINT:

(i)The Powers of revisional Court has been clarified by the Supreme Court in 2002 SCC (Cri) 1067 and 1448 and in (2004) XIII SCC 374. In (2004) XIII Supreme Court Cases 374( Hydru VS State of Kerala) the Supreme Court had observed as under:

"It is well settled that in revision against acquittal by a private party, the powers of the Revisional Court are very limited. It can interfere only if there is any procedural irregularity or material evidence has been overlooked or misread by the Subordinate Court. If upon reappraisal of evidence, two views are possible, it is not permissible even for the appellate Court in appeal against acquittal to interfere with the same, much less in revision where the powers are much narrower."

In 2002 Supreme Court Cases (Cri) 1066 (T.N.Dhakkal VS James Basnett and another) the Supreme Court held as under:

"Though the High Court has revisional jurisdiction under Section 401 Cr.P.C and can exercise its discretionary jurisdiction to correct miscarriage of justice, but whether or not, there is justification for the exercise of that discretionary jurisdiction would depend upon the facts and circumstances of each case. The controlling power of the High Court being discretionary, it is required to be exercised only in the interest of justice, having regard to all the facts and circumstances of each particular case and not mechanically." In the case of Bindeshwari Prasad Singh alias B.P.singh and others Vs State of Bihar (Now Jharkhand) and another (2002 Supreme Court Cases (Cri) 1448) it was held:

"In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted."

As per the decisions of the Hon'ble Supreme Court cited above, the power of the revisional Court is limited. Further, the revision petitioner must show that the Trial Court has overlooked the material evidence and thereby, it resulted in miscarriage of justice.

(ii)P.W.1 is the daughter of P.W.2 and P.W.4. Their land is situated near the land of the accused. P.W.1 and the accused loved each other, thereby the victim became pregnant. This was confirmed by the evidence of Dr.Bala Abirami, P.W.5. The accused is competent for intercourse and it was certified by Dr.Thiyagarajan, P.W.6. No doubt, there was enemity between the family of the accused and P.W.1/complainant. But, both of them are young. It is quite natural that love is blind. They loved each other, as a result, P.W.1 has become pregnant.

(iii)Learned counsel for the revision petitioner relied on the decision reported in 1984 CRI.L.J.1535 (JAYANTI RANI PANDA Vs. STATE OF WEST BENGAL AND ANOTHER), 1990 CRI.L.J.650 (HARI MAJHI Vs. THE STATE) and 2003 CRI.L.J.1539 (UDAY Vs. STATE OF KARNATAKA) and argued that P.W.1 had given her consent and she was a willing party for the intercourse with the accused. So, the accused cannot be held responsible under section 417 of IPC. (iv)But, in the instant case, the evidence on record would show that the accused moved with P.W.1 and promised that he will marry P.W.1 and thereby, she became pregnant. So, the accused gave a false promise that he will marry her. So, P.W.1 became victim to the lust of the accused. Having promised to marry her, the accused cannot turn down saying that he is not responsible for the pregnancy.

(v)Moreover, there was a panchayat and in the said panchayat, the accused demanded 5 sovereigns of gold and Rs.5,000/- cash, This would go to show that he had the intention to marry P.W.1 and thereby, induced P.W.1 to have intercourse with him. Hence, I find that the accused has deceived P.W.1 and thereby, committed the offence. The decisions relied on by the learned counsel for the revision petitioner as stated above, will not be applicable to the accused herein.

(vi)Both the Trial Court and the Appellate Court came to the correct conclusion and hence, I find no illegality or impropriety in the findings of the Court below.

(vii)So far as the sentence is concerned, the accused was awarded 6 months simple imprisonment with a fine and default sentence. The fine amount was already paid. Since, both the accused and the complainant are young persons and there is a possibility of compromise between the parties. So, he must not be detained in the prison for a long period. It will deteriorate the cordial atmosphere. Hence, it would be just and proper to reduce the sentence to one month simple imprisonment.

The criminal revision case is disposed of with the above modification. It is reported that the accused is on bail. Hence, the Sessions Judge concerned is directed to take steps to secure the presence of the accused and commit him in prison to undergo the remaining period of sentence. To

1.The Additional District and Sessions Judge/Fast Track Court No.III, Madurai,

2.The Judicial Magistrate, No.VI, Madurai.

3.The Additional Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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