Rajendran vs State Rep.

By Inspector Of Police on 9 July, 2012

Madras High Court

Rajendran vs State Rep. By Inspector Of Police on 9 July, 2012

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 09.07.2012

CORAM:

THE HONOURABLE MS. JUSTICE R. MALA

Criminal Appeal No.172 of 2003

Rajendran .. Appellant/Accused

vs.

State rep. by Inspector of Police

Gobichettipalayam police station
Erode District. .. Respondent/Complainant

Prayer: Criminal Appeal filed under Section 374 of Cr.P.C., against the judgment of conviction

For Appellant : Mr.V.Bharathidasan

For Respondent : Mr.C.Emalias

Government Advocate (crl.side)

J U D G M E N T

The criminal appeal arises out of the judgment of conviction and sentence dated 12.07.2002, made
in S.C.No.147 of 2000 on the file of the Additional District and Sessions Court, Fast Track Court
No.II, Gobichettipalayam, whereby the accused was convicted for the offence under Section 366A
IPC and sentenced to undergo four years rigorous imprisonment and imposed a fine of Rs.500/- in
default in payment to undergo three months rigorous imprisonment.

Indian Kanoon - http://indiankanoon.org/doc/91367339/ 1

 Rajendran vs State Rep. By Inspector Of Police on 9 July, 2012

2.The respondent has filed a final report stating that on 18.01.1999, at 11.00 hours, the accused had
kidnapped a minor girl namely, Jayanthi @ chitra, aged about 17 years, who was under the custody
of her parents and took her to Kodumudi Magudeshwaran Temple and married her. Hence, a charge
sheet has been filed against the accused for the offence under Section 363 IPC.

3.The case of the prosecution is as follows:

(i) P.W.1/Kali chettiar, who is the father of the victim girl, namely, Jayanthi @ chitra, stated that he
is having two sons and one daughter, who was the victim girl. Chitra usually goes to Tailoring class
at Nallakoundanpalayam. On the date of occurrence (i.e.) on 18.1.1999, when P.W.1 returned to his
home, he noticed that his daughter was missing. Then he made a search in the tailoring class as well
as in his relatives house, where they stated that she did not come. At the time, he came to know that
the accused/Rajendran, who was his neighbour, also found missing. Hence, he preferred Ex.P1
complaint on 21.01.1999 before the Gobi Police station, stating that his daughter was missing along
with 15 sovereigns jewels and Rs.5,000/- cash.

(ii) P.W.7/Velliangiri, Special Sub-Inspector of Police received Ex.P1 complaint from P.W.1 and
registered a case in Crime No.22/1999 under Section 363 IPC. He prepared printed F.I.R. Ex.P6 and
forwarded the same to the Court and concerned officials. On 22.01.1999, at 11.35 a.m., when he
made a search along with P.W.1 and P.W.4/Subramaniam, they found the victim girl along with the
accused in Nambiyur Bus stand. He also seized jewels worn by the victim girl under M.O.1 to M.O.7
through Form 95 in the presence of P.W.1 and P.W.4 and the same was marked as Ex.P7. Then he
examined one Kaliammal, P.W.1 to P.W.4 and recorded their statements. Thereafter, he produced
the victim girl, the accused and the seized material objects before the Court. He also sent Ex.P8
requisition to the Court to determine the age of the victim girl. Then, P.W.7 sent the case details to
the Inspector of Police for further investigation.

(iii) On 27.01.1999, P.W.6/Dr.Krishnakumari, who received Ex.P4 requisition from the learned
Judicial Magistrate, Gobichettipalayam, gave Radiology Report Ex.P5 stating that the victim girl was
aged about 17 years.

(iv) P.W.8/Vasudevan, who was working as Inspector of Police, took up the matter for further
investigation. He received Ex.P5 Radiology Report from the Gobi Government Hospital and
examined P.W.6/Dr.Krishnakumari and recorded her statement. After completing investigation, he
filed a charge sheet against the accused for the offence under Section 363 IPC.

4.The trial Court placed the incriminating evidence before the accused and the accused denied the
same. On his side, he marked Exs.D1 to D6. The trial Court after considering the oral and
documentary evidence, convicted the accused/appellant for the offence under Section 366A IPC and
sentenced him as stated above.

5. Mr.V.Bharathidasan, learned counsel for the appellant/accused would make the following
submissions:

Indian Kanoon - http://indiankanoon.org/doc/91367339/ 2

 Rajendran vs State Rep. By Inspector Of Police on 9 July, 2012

(i)Charge is not properly framed.

(ii)There is a delay in preferring the complaint.

(iii)The offence under Section 366A IPC has not been made out.

To substantiate his arguments, he relied upon the decisions reported in (2003) 1 SCC 605 (Jinish
Lal sah v. State of Bihar) and (2008) 1 MLJ (crl) 1414 SC (Iqbal v. State of Kerala). Hence, he prayed
for allowing of this appeal.

6.Resisting the same, Mr.C.Emalias, learned Government Advocate (Crl. Side) submitted that the
accused kidnapped a minor girl and forced her to marry him. Therefore, the offence under Section
366A IPC is made out. He would take me through Sections 361 and 363 of IPC and submitted that
the offence under Section 366 IPC is made out. Hence, he prayed for convicting the
accused/appellant under Section 366 IPC.

7.Considered the rival submissions made on both sides and the materials available on record.

8.On perusal of the charge framed against the accused/appellant, it would reveal that on 18.01.1999,
at 11.00 a.m., the accused with an intention to perform marriage, kidnapped P.W.1's daughter one
Jayanthi @ Chitra, who was under the age of 18 years and thereby the appellant was charged for the
offence under Section 366A IPC, which deals, inducing any minor girl under the age of eighteen
years to go from any place or to do any act with intent that such girl may be, or knowing that it is
likely that she will be, forced or seduced to illicit intercourse with another person.

9.Learned counsel for the appellant submitted that there is no evidence to show that the minor girl
was subjected to seduce by other person and hence, the ingredients of Section 366A IPC is not made
out. To substantiate the same, he relied upon the decision reported in (2008) 1 MLJ (crl) 1414 SC
(Iqbal v. State of Kerala). In para-9 of the judgment, it was held as follows:

"9.In order to attract Section 366A IPC, essential ingredients are (1) that the accused induced a girl;
(2) that the person induced was a girl under the age of 18 years; (3) that the accused has induced her
with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit
intercourse; (4) such intercourse must be with a person other than the accused; (5) that the
inducement caused the girl to go from any place or to do any act."

Considering the above decision, this Court has to be decided whether Section 366A IPC has been
made out. In the case on hand, Ex.P3 / Birth Certificate was marked to prove the victim girl was
born on 30.03.1982 and she was completed 16 years on the date of occurrence (i.e.) on 18.01.1999.
Even though the girl is minor, in her evidence she stated that she had love affair with the accused
and hence, she gone along with him.

10.Now it is pertinent to note Section 35 of Indian Evidence Act, which deals with Relevancy of entry
in public record or an electronic record made in performance of duty. On perusal of Ex.P3/Birth

Indian Kanoon - http://indiankanoon.org/doc/91367339/ 3

 Rajendran vs State Rep. By Inspector Of Police on 9 July, 2012

Certificate of victim girl, it was recorded as per the Births and Deaths Registration Act, 1969 and on
the information given by the person, it has been recorded as she was born on 30.03.1982 and
registered on 31.03.1982. P.W.6/Dr.Krishnakumari was also examined to assess the age of the
victim girl at the time of occurrence and she gave Ex.P5/Radiology Report, in which, she stated that
the victim girl was aged about 17 years. So the evidence of P.W.1, P.W.6 along with Exs.P3 and P5
would prove that Jayanthi is a minor girl on the date of occurrence (i.e.) on 18.01.1999.

11.At this juncture, it is appropriate to consider the evidence of P.W.5/the victim girl. She stated that
on 18.01.1999, at 11.00 a.m., herself and the accused gone to Gobi and married at Magudeshwaran
Temple, Kodumudi and then gone to Sivagiri, where they stayed in the house of one known person
and on the very next day, they went to Ganapathypalayam, where they stayed at one Shanmugam's
house. When she examined in C.C.No.47 of 1999, in her cross-examination, she stated that she left
the house according to her own wish and she married the accused out of love and affection. Now it is
appropriate to incorporate her evidence in cross-examination, which is as follows:

" .. .. ehd; vjphpia tpUg;gg;gl;L jhd; jpUkzk; bra;J bfhz;nld;/ ehd; tPl;il tpl;L btspna brd;wJ.
Vjphpa[ld; nrh;e;J brd;wJ. bfhLKoapy; jpUkzk; bra;J bfhz;lJ midj;Jk; vd; tpUg;gj;jpw;F
cl;gl;Lj;jhd;/ // // @ The above evidence would clearly prove that P.W.5 left her parental home
according to her own wish.

12.It is pertinent to note that at the time of arresting accused along with the victim girl,
P.W.7/Inspector of Police seized 15 sovereigns of jewels (M.O.1 to M.O.7). Considering the earlier
statement of P.W.5 given before the Magistrate in C.C.No.47 of 1999, there is no evidence to show
that the accused induced P.W.5. She also stated that she had not seduced to have intercourse with
him or anybody. Considering the evidence of P.W.1 and P.W.5, I am of the view, the charge under
Section 366A IPC is not made out, because P.W.5 stated that she left her home along with the
accused according to her own wish. In such circumstances, I am of the considered opinion, the
prosecution has failed to prove the charge under Section 366A IPC beyond reasonable doubt.

13.Learned Government Advocate (Crl. Side) would submit that if Section 366A IPC is not made out,
the accused ought to have convicted under Section 366 IPC. At this juncture, it is appropriate to
consider the decision relied upon by the learned counsel for the appellant reported in (2003) 1 SCC
605 (Jinish Lal sah v. State of Bihar), in which, it was held that once the girl is aged above 18 years,
only Section 366 IPC has been made out. While perusing the above decision, it was specifically
mentioned that the girl had planned her departure from the house in advance and had willingly
gone away with the appellant which also indicates that there was no threat or inducement either in
regard to her leaving the house or in regard to accompanying the appellant. Hence, Section 366 IPC
is not made out. But in the instant case, as per the evidence of P.W.5, she took away M.O.1 to M.O.7
jewels and a cash of Rs.5,000/- and left her home and go with the accused without any protest and
married the accused at Kodumudi and stayed at Sivagiri and on the next day stayed at one
Shanmugam's house at Ganapathy palayam and thereafter, they wanted to intimate the same to
their parents and hence, they returned to their place, at the time, they caught hold by
P.W.7/Inspector of Police, who seized M.O.1 to M.O.7 under Ex.P2/seizure mahazar, in which,
P.W.1/father of the victim girl and P.W.4/Subramaniam were attested. Since the victim girl herself

Indian Kanoon - http://indiankanoon.org/doc/91367339/ 4

 Rajendran vs State Rep. By Inspector Of Police on 9 July, 2012

voluntarily accompanied with the accused and married him on her own wish, Section 366 IPC is not
made out.

14.Learned Government Advocate (Crl. Side) would further submit that the appellant/accused
kidnapped the girl from lawful guardian ship, which comes under Section 361 IPC, is read as
follows:

"361. Kidnapping from lawful guardianship.__ Whoever takes or entices any minor under [sixteen]
years of age if a male, or under [eighteen] years of age if a female, or. any person of unsound mind,
out of the keeping of the lawful guardian of such minor or person of unsound mind, without the
consent of such guardian, is said to kidnap such minor or person from lawful Guardianship. "

On perusal of records, there is no doubt that the age of the girl was 17 years at the time of
occurrence. It is an admitted fact that she is a minor girl and P.W.1 is her lawful guardian. But there
is no evidence to show that the appellant/accused herein has induced P.W.5 to leave lawful guardian
of said minor without consent of legal guardian. But here, admittedly, P.W.5 took away the jewels
and left her home, as if she goes to tailoring class. Since she did not return back to home on
18.1.1999, till 2.30 p.m., her father/P.W.1 made an enquiry in her tailoring class as well as his
relatives house. But he could not find her, so he gave complaint on 21.01.1999. At the time only, he
came to know that 15 sovereigns jewels and Rs.5,000/- were missing. On 22.01.1999, when P.W.7
along with P.W.1 and P.W.4 made a search, they caught hold the accused and the victim girl, who
possessed the jewels, which were marked as M.O.1 to M.O.7. It shows that even though the girl was
17 years old at the time of occurrence, she voluntarily accompanied with the accused and left her
home along with jewels. In my opinion, the submission of the learned Government Advocate (Crl.
Side) that the appellant/accused is ought to have convicted under Section 363 IPC, does not hold
good. In such circumstances, I am of the view, the prosecution has miserably failed to prove that the
accused is guilty under Sections 366 IPC as well as Sections 361 r/w 363 IPC. Therefore, the
judgment of conviction and sentence passed by the trial Court under Section 366A IPC is liable to be
set aside and hence, it is hereby set aside.

15. In fine,

(i) Criminal Appeal is allowed.

(ii) The Judgment of conviction and sentence passed by the

trial Court is set aside.
(iii) The appellant/accused is acquitted from the charge
levelled against him.
(iv) The bail bond if executed by the appellant/accused shall
stand cancelled.
(v) The fine amount if paid by the appellant/accused shall be
refunded to him.

Indian Kanoon - http://indiankanoon.org/doc/91367339/ 5

 Rajendran vs State Rep. By Inspector Of Police on 9 July, 2012

kj

To

1. The Additional District and Sessions Court

Fast Track Court No.III, Chennai.

2.Inspector of Police
E3 Police station, Teynampet
Chennai.

3.The Public Prosecutor

High Court, Madras.

4.The Record Keeper

Criminal Section, High Court,
Madras

Indian Kanoon - http://indiankanoon.org/doc/91367339/ 6