Kannan vs State of Tamil Nadu

R. S. Ramanathan, J.—The third accused in S.C.No. 413 of 2005 on the file of the Mahila Court, Salem/Additional District Sessions Court (Fast Track Court No. 2), Salem, is the appellant. The appellant was convicted for the offence under Section 354 I.P.C. and sentenced to undergo 2 years Rigorous Imprisonment and to pay a fine of Rs. 500/-, in default to undergo three months Simple Imprisonment by the learned Trial Judge in S.C.No. 413 of 2005, dated 05.04.2007. Aggrieved by the same, the present appeal is filed.

The case of the prosecution is as follows:

2.1. Initially, a case was registered in Crime No. 48 of 2004 against three accused for the offence under Section 420 and against the third accused, the appellant herein, a case was registered for the offence under Section 376 r/w 511 IPC and Section 354 IPC and against accused 2 and 3 for the offence under Section 506(ii) IPC. The accused 1 and 2 were acquitted by the learned Sessions Judge and the appellant was convicted for the offence under Section 354 IPC.

2.2. P.W.1 was the sister-in-law of the appellant and the marriage between P.W.1 and one Senthilkumar, the brother of the appellant, took place on 07.03.1999. It is the case of the prosecution that the husband of P.W.1 was not mentally sound and by practicing fraud on P.W.1 and her family members, all the accused arranged the marriage of Senthilkumar with P.W.1 and thereafter, when P.W.1 was living in her husband''s house along with the appellant, the appellant attempted to misbehave with her and she complained the same to her father-in-law and they did not take serious note of the same and informed P.W.1 that she has to adjust and thereafter also, the appellant attempted to misbehave and attempted to outrage her modesty and therefore, on 18.02.2004, P.W.1 gave a complaint to the police against the appellant and two others and a case was registered against the appellant and two others for the offences aforementioned and chargesheet was laid and the accused was convicted by the Mahila Court, Salem.

During the trial, the complainant was examined as P.W.1; her mother was examined as P.W.2 and her brother was examined as P.W.3; P.Ws.4 and 5 are the witnesses to First Information Report and Observation Mahazar and P.Ws.6 and 7 are police officials. On the side of the prosecution, five exhibits were marked and on the side of the defence, D.W.1 was examined. The Trial Court acquitted accused 1 and 2 and convicted the appellant for the offence under Section 354 IPC.

It is submitted by the learned counsel for the appellant that a reading of the evidence of P.W.1 would prove that no case has been made out against the appellant and the Trial Court without properly appreciating the evidence of P.Ws.1, 2 and 3, erred in convicting the appellant for the offence under Section 354 IPC. He submitted that even according to the prosecution, the husband of P.W.1 was not mentally sound and P.W.1 was cheated and forced to marry her husband and thereafter, she was living with her husband for five years and no steps were taken by P.W.1 either to dissolve the marriage immediately after coming to know about the mental condition of her husband. Admittedly, she filed an application for divorce in the year 2004. On the basis of the complaint given by P.W.1 before the police and as she also admitted of having received Rs. 1,30,000/-, the marriage between her and her husband was dissolved.

He further submitted that in the complaint or in the evidence, no particulars or no dates were mentioned by P.W.1 regarding the incident alleged to have happened. If the appellant had attempted to molest P.W.1 as spoken to by P.W.1, she would not have lived in her in-law''s house and it is not the case of the prosecution that the appellant attempted to molest her just before giving a complaint and according to her, she was not able to state the exact period during which the incident had taken place and in the absence of any details and the fact that she was living in her in-law''s house for five years, the complaint given thereafter would prove that a case has been given only to extort money from the appellant.

He also submitted that the Trial Judge having acquitted accused 1 and 2, ought to have acquitted the appellant also on the ground that the prosecution has not proved their case beyond reasonable doubt. Further, he submitted that the evidence of P.W.3 is contrary to the evidence of P.W.1. P.W.3, brother of P.W.1 stated that his sister came to his house due to the misbehaviour of the appellant and only after the marriage of the appellant, she went back to her in-law''s house and he also did not give any details of months or year during which such incident had taken place. Similarly, P.W.2 also did not give any details about the alleged incident committed by the appellant. He therefore submitted that the Trial Court erred in convicting the appellant for the aforesaid offences.

Learned Additional Public Prosecutor submits that the evidence of P.W.1 is natural and she has given cogent evidence regarding the misbehaviour of the appellant with her. That was corroborated by P.Ws.2 and 3 and believing the evidence of P.Ws.2 and 3, the Trial Court rightly convicted the appellant for the offence under Section 354 IPC and therefore, the well considered judgment need not be interfered with.

Having regard to the submissions of the learned counsel for the appellant and the learned Additional Public Prosecutor, what has to be seen is whether the prosecution has proved the case beyond reasonable doubt. As stated supra, to prove the offence, the prosecution examined P.Ws.1 to 3. P.W.1 was the sister-in-law of the appellant and she married the brother of the appellant and the marriage took place on 07.03.1999. In the complaint as well as in the evidence, she has not given any particulars regarding the month, year or date on which the accused misbehaved with her. It is admitted by her in the cross-examination that she became pregnant twice and on both occasions, the pregnancy got aborted and only on 18.02.2004, she gave a complaint against the appellant and two others about the misbehaviour of the appellant as well as the fraud practiced on her by the appellant and two others.

P.W.3 is the brother of P.W.1 and he also deposed that her sister complained about the misbehaviour of the appellant and therefore, she was taken to his house and after the marriage of the appellant, she went back to her in-law''s house. As rightly submitted by the learned counsel for the appellant, if the appellant had misbehaved with P.W.1 on earlier occasions, which was also reprimanded by her in-laws, definitely, P.W.1 would not have gone back to the house of the appellant. Further, no details were given regarding the date, month or year during which such incident had taken place and admittedly, P.W.1 lived with her husband for five years and in February 2004, she gave a complaint. Further, the fact that the complaint was given against two other accused for the offence under Section 420 stating that she was cheated by those persons along with the appellant would also prove that P.W.1 got a grudge against the appellant and two other accused. Further, no attempt was made by the prosecution to prove that the husband of P.W.1 was not mentally sound, which was taken advantage by the appellant and he misbehaved with her.

These aspects were not properly appreciated by the court below and the court below, without properly appreciating the evidence of P.W.1, convicted the appellant. According to me, the evidence of P.W.1 cannot be believed in the absence of any details given in the complaint regarding the misbehaviour of the appellant and the fact that the complaint was given after five years. Hence, according to me, the prosecution has not proved the case beyond reasonable doubt and the Trial Court erred in convicting the appellant for the offence under Section 354 IPC. Therefore, the point for consideration is answered in favour of the appellant and the judgment and sentence dated 05.04.2007 in S.C.No. 413 of 2005 on the file of the Mahila Court, Salem/Additional District Sessions Court, (Fast Track Court No. 2), Salem, is set aside. The appellant is set at liberty and the fine amount, if paid, shall be returned to the appellant. The bail bond executed by the appellant is also cancelled.

In fine, the Criminal Appeal is allowed.