P.Danapal vs State Rep.

By on 23 March, 2015

Madras High Court

P.Danapal vs State Rep. By on 23 March, 2015

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 23.03.2015
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal No.683 of 2007

P.Danapal .. Appellant/Accused

vs.

State Rep. By
Inspector of Police
Veeranam Police Station,
Steel Plant Limit, Salem District. .. Respondent/Complainant

Prayer: Criminal Appeal filed under Section 374 (2) of Cr.P.C., against the judgment of convict

For Appellant : Mr.B.Kumarasamy

For Respondent : Mr.V.Arul

Government Advocate (crl.side)
J U D G M E N T

This Criminal Appeal arises out of the judgment of conviction and sentence dated 02.07.2007, made
in S.C.No.170 of 2006 on the file of the learned Sessions Judge, Mahila Court, Salem, whereby the
accused/the appellant herein was convicted and sentenced as follows:

offence under Section Sentence 366A IPC To undergo three years rigorous imprisonment and to pay
a fine of Rs.500/- in default in payment to undergo three months rigorous imprisonment.

376 IPC To undergo seven years rigorous imprisonment and to pay a fine of Rs.500/- in default in
payment to undergo three months rigorous imprisonment.

The sentence are ordered to be run concurrently.

2.The case of the prosecution based on the prosecution witnesses is as follows:

(i)On the side of the prosecution, P.W.1 to P.W.10 were examined, Exs.P1 to P8 were marked.

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(ii)P.W.1/Shanthi is the mother and P.W.2/Arasu is the father of the victim girl/P.W.3 and they
were residing in Sundarajan Colony, Valasaiyur. P.W.1 had two daughters and one son. P.W.3/the
victim girl is the second daughter and she is working in a Private Mill at Chettiyarkadu,
Sukkampatti. On 01.04.2005, since P.W.3/the victim girl has not returned home for long time,
P.W.1 searched P.W.3 in the house of neighbours but she cannot find the victim girl. On
investigation, P.W.1 came to know that one Dhanapal, S/o.Periyasamy, the appellant/accused has
abducted the victim girl/P.W.3. Thereafter, she lodged a complaint/Ex.P.1 before the Veeranam
Police Station on 12.04.2005.

(iii)P.W.3/the victim girl, in her evidence, has stated that the appellant/accused was known to her.
On 01.04.2005, the appellant/accused asked the victim girl/P.W.3 to come to Appollo School, which
is situated near the place where they were residing at about 7.30 p.m. and threatened her that if she
has not come, he will kill her. Then, both of them went to Kuniamuthur Church and taken a house
for rent. On 03.04.2005 at about 11.00 a.m., the appellant/accused married the victim girl/P.W.3 at
Dharmalingam Mali Sivan Temple, Palakodu, by tying a covering Thali in the presence of
Rajalingam and Santhi. She further stated that he forces her to have sexual intercourse stating that
she is his wife and continue to have sexual intercourse while they are living at Kuniamuthur. On the
complaint given by P.W.1, namely, the monther of the victim girl/P.W.3, Investigating Agency came
there and took her.

(iv)P.W.7/A.Prakash, Sub-Inspector of Police, Veeranam Police Station received the

complaint/Ex.P.1 from P.W.1 and registered a case in Crime No.84 of 2005 under Section 366 IPC
and prepared the printed FIR/Ex.P.5. Thereafter, he sent the FIR/Ex.P.5 to the Inspector of Police,
Irumbalai Police Station for investigation.

(v)P.W.9/Palanisamy, Inspector of Police, Irumbalai Police Station took up the case for
investigation and went to the place of occurrence and prepared the observation mahazar/Ex.P.4 and
drew rough sketch/Ex.P.8 in the presence of P.W.6/Sekar and one Kamaraj. Thereafter he examined
the witnesses and recorded their statements. On 22.04.2005 at about 2.00 p.m, P.W.9 arrested the
appellant/accused in Veeranam Bus stop and produced the accused for remand. Thereafter, P.W.9
sent the victim girl and the appellant/accused for medical examination.

(vi)P.W.10/Vijayalakshmi, Inspector of Police, Kondalampatti Police Station examined the victim

girl and recorded her statement on 22.04.2005.

(vii)P.W.4/Dr.S.S.Meera, on receipt of the requisition from the learned Judicial Magistrate No.IV,
Salem, examined the victim girl/P.W.3 on 28.04.2005 and found that there is no external injuries
and the hymen got ruptured and easily admits one finger. She further submitted that no evidence of
spermatazoa seen, either motile or non-motile. She issued the medical report/Ex.P.2. and a
chemical examination report/Ex.P.3 and opined that the victim girl/P.W.3 is used to sexual
intercourse.

(viii)On 28.04.2005, P.W.8/Dr.Vallinayagam, on receipt of the requisition from the learned Judicial
Magistrate No.IV, Salem examined the victim girl/P.W.3 and Ex.P.7 certificate was issued stating

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 P.Danapal vs State Rep. By on 23 March, 2015

that the age of the victim girl might be above 16 years and below 18 years. On 04.05.2005, P.W.8
examined the appellant/accused and issued Ex.P.6 Medical Report stating the accused is not an
impotent.

(ix)After completing the investigation, P.W.9/Palanisamy, Inspector of Police, Irumbalai Police

Station filed the charge sheet against the accused/appellant herein under Section 366IPC.

3.The Trial Court placed the incriminating evidence before the accused under Section 313 of Cr.P.C.
and the accused denied the same in toto. On the side of the defence, no oral evidence was examined
and no documentary evidence was marked. After considering the oral and documentary evidence,
the trial Court convicted the accused/appellant herein for the offence under Sections 366A and 376
IPC and sentenced him as stated above. Aggrieved over the same, the accused/appellant has
preferred this appeal.

4.Challenging the conviction and sentence passed by the Trial Court, the learned counsel appearing
for the appellant submits that the ingredients of Section 366A has not be made out. He would also
submit that at the time of occurrence, the victim girl is aged about 16 years and she is a consented
party. So, the ingredients of Section 375 IPC has also not been made out. He further submitted that
the alleged occurrence said to have taken place on 01.04.2005, but on 12.05.2005 the marriage has
been performed in the temple which was proved by way of examining of D.W.1 and Ex.D.1, wherein
it was stated that the age of the victim girl is 19 years. That factum was not considered by the Trial
Court. He would further submit that after the marriage, the victim girl gave birth to a male child and
thereafter, she left the matrimonial home and then only, complaint has been given. He would also
submit that now the male child is with the father and he is taking care of the child. Hence, he prayed
for setting the conviction and sentence passed by the Trial Court.

5.Resisting the same, the learned Government Advocate (Crl. Side) would submit that the age of the
victim girl/P.W.3 is below 16 years and she is not a competent person to give a consent for sexual
intercourse. That factum was rightly considered by the Trial Court. He would further submit that the
ingredients of Section 366A IPC has been made out. He further submitted that the evidence of
D.W.1 and Ex.D.1 is not an admissible evidence and the document came into existence only after the
case has been registered. So, no relevance can be made. Hence, he prayed for dismissal of the
appeal.

6.Considered the rival submissions made by both sides and perused the typed set of papers.

7.P.W.3 is the victim girl. P.W.1 is the mother and P.W.2 is the father of the victim girl. P.W.4 is the
Doctor. The case of the prosecution is that on 01.04.2005 the appellant herein has abducted the
victim girl, who is a minor and committed rape, thereby committed the offences punishable under
Sections 366A and 376 IPC.

8.Now the first and foremost point to be decided is what is the age of the victim girl/P.W.3?
Admittedly, no school certificate and birth certificate has been marked. But P.W.8/Dr.Vallinayagam,
in his evidence has deposed that he has assessed the age of the victim girl on the basis of the denture

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and came to the conclusion that the age of the victim girl would be above 16 years and below 18
years. So, the age of the victim girl must be above 16 years and below 18 years. At this juncture, it is
appropriate to incorporate the ingredients of Section 375 IPC, which reads as follows:

375.Rape A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual
intercourse with a woman under circumstances falling under any of the six following descriptions: -

First: - Against her will.

Secondly: -without her consent.

Thirdly: - With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.

Fourthly: -With her consent, when the man knows that he is not her husband, and that her consent
is given because she believes that he is another man to whom she is or believes herself to be lawfully
married.

Fifthly: - With her consent, when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any stupefying
or unwholesome substance, she is unable to understand the nature and consequences of that to
which she gives consent.

Sixthly: - With or without her consent, when she is under sixteen years of age.

So, the victim girl/P.W.3 is competent to give consent for sexual intercourse since P.W.3 is above 16
years.

9.In criminal jurisprudence, it is the duty of the prosecution to prove the guilt of the accused beyond
all reasonable doubt. Admittedly case has been registered on 12.04.2005, but on 01.06.2005, the
marriage has been performed between the appellant and P.W.3 in the presence of her parents,
namely, P.W.1 and P.W.2. Marriage Certificate has also been marked. In the cross examination,
P.W.1 has fairly conceded that on 28.03.2006, the victim girl gave birth to a male child. In the
marriage certificate also, the age of the victim girl was mentioned as 19 years. So, at the time of the
alleged occurrence on 01.04.2005, the age of the victim girl is above 16 years. As per the dictum of
the Hon'ble Apex Court, if the birth certificate is not filed before the Court, the age certificate issued
by the Doctor on the basis of the ossification test is not accurate and it may vary two years on either
side. Considering the same, I am of the view that the age of the victim girl/P.W.3 is 18 years. So, the
ingredients of Section 376 IPC has not been made out.

10.It is appropriate to incorporate Section 366A, which is as follows:

›66A.Whoever, by any means whatsoever, induces 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

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 P.Danapal vs State Rep. By on 23 March, 2015

that she will be, forced or seduced to illicit intercourse with another person shall be punishable with
imprisonment which may extend to ten years, and shall also be liable to fine. Even though the
victim girl/P.W.3 is a minor, here, the appellant/accused alone married the victim girl.

11.At this juncture, it is appropriate to consider the decision reported in (2008) 1 MLJ (crl) 1414 SC
(Iqbal v. State of Kerala), wherein 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."

In such circumstances, the ingredients of Section 366A IPC has not been made out.

12.As stated supra, the prosecution has not proved that the accused is guilty under Sections 366A
and 376 IPC beyond all reasonable doubt and the benefit of doubt is given in favour of the appellant
and he was acquitted from the charges levelled against him. Hence, the judgment of conviction and
sentence passed by the Trial Court under Sections 366A and 376 IPC is hereby set aside.

13.During the course of the argument, the learned counsel appearing for the appellant submitted
that the appellant's father, namely, Periyasamy, has settled a property in favour of the male child,
viz., D.Aravind Kumar, born through the appellant and P.W.3 appointing the learned Principal
District Judge, Salem as guardian and produced a copy of the settlement deed.

14.The appellant is directed to produce the original settlement deed along with a proper application
before the learned Principal District Judge, Salem. The learned Principal District Judge, Salem is
also directed to receive the same and act as guardian to the minor till attain majority and hand over
the same to the said D.Aravind Kumar after he attains majority.

15.In fine,

(i)The Criminal Appeal is Allowed.

(ii)Judgment of conviction and sentence passed by the learned Sessions Judge, Mahila Court, Salem
in S.C.No.170 of 2006 dated 02.07.2007 is hereby set aside.

(iii)The appellant is acquitted from the charges levelled against him.

(iv)The fine amount paid by the appellant is ordered to be refunded to him.

(v)Bail bond, if any executed by the appellant shall stand cancelled.

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 P.Danapal vs State Rep. By on 23 March, 2015

23.03.2015 Index:Yes/No Internet:Yes/No cse Note: The Registry is directed to send a copy of this
order to the learned Principal District Judge, Salem.

R.MALA,J.

cse To

1.The learned Sessions Judge, Mahila Court, Salem.

2.TheInspector of Police Veeranam Police Station, Steel Plant Limit, Salem District..

3.The Public Prosecutor High Court, Madras.

4.The Record Keeper Criminal Section, High Court, Madras.

Criminal Appeal No.683 of 2007 23.03.2015

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