CRL A/94/2022 of SURESH Vs THE STATE REPTHROUGH SHO on 16 October 2026

JUDGMENT

The Criminal Appeal challenges the Judgment passed in S.C.No.146 of 2015 by the learned Sessions Judge, District Mahalir Court (Mahila Fast Track), Villupuram, holding the appellant/A1 guilty of the offences under Sections 376 and 417 of the Indian Penal Code, 1860, (hereinafter referred to as “the IPC”) and sentencing him to undergo seven years of rigorous imprisonment and to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand Only) in default to undergo a further period of three months of simple imprisonment for the offence under Section 376 of the IPC, and no separate sentence was imposed for the offence under Section 417 of the IPC.

2 (a). It is the case of the prosecution that the appellant/A1 and the victim were known to each other; that they had a romantic relationship; that on the promise of marriage, the appellant had sexual intercourse with the victim girl on several occasions; that as a result of the said relationship, the victim became pregnant and a child was stillborn; that the victim approached the appellant/A1 and his father, who was originally arraigned as A2, to get her married to the appellant, which was refused by them; and that thereafter, she lodged a complaint, which was marked as Ex.P2, and registered in Crime No.19 of 2009 for the offences under Sections 376 and 417 of the IPC against the appellant. The FIR was marked as Ex.P3.

(b) . It is further the case of the prosecution that the victim gave birth to a stillborn child on 02.07.2009, and the victim also died one week later on 09.07.2009. [It is not clear from the evidence adduced in this case as to what was the cause for her death]. The respondent investigated the complaint lodged by the deceased victim and filed a Final Report against the appellant/A1 for the offences under Sections 376 and 417 of the IPC and against his father/A2 for the offences under Sections 506(1) and

506(2) of the IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Woman (Amendment) Act, 2002, before the learned Judicial Magistrate Tirukoviloor.

(c) . On the appearance of the accused, the provisions of Section 207 Cr.P.C. were complied with, and the case was taken on file as S.C.No.146 of 2015 by the learned Sessions Judge, District Mahalir Court (Mahila Fast Track), Villupuram. The Trial Court framed charges against the first accused for the offences under Sections 376 and 417 of the IPC and against the second accused/appellant’s father for the offences under Sections 294(b) and 506(1) of the IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Woman (Amendment) Act, 2002. During the trial, when questioned, the accused pleaded 'not guilty.'

(d) . Before the trial Court, the prosecution had examined 10 witnesses as P.W.1 to P.W.10 and marked 11 exhibits as Exs.P1 to P11. When the accused were questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against them, they denied the same. The accused neither examined any witnesses nor marked any documents on their side.

(e) . The Trial Court after considering the evidence on record, acquitted the father of the appellant/second accused for the offences under Sections 294(b) and 506(1) of the IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Woman (Amendment) Act, 2002, and convicted the appellant/ first accused for the offences under Sections 376 and 417 of the IPC and sentenced the appellant as stated in paragraph No.1 of this Judgment. Aggrieved by the said conviction and sentence, the appellant had preferred the instant appeal. 3(a). Mr.S.Kingston Jerold, the learned counsel for the appellant/A1, would submit that, admittedly, the relationship between the appellant and the victim was consensual; that even in the complaint given by the victim, she had stated so; that most of the witnesses for the prosecution turned hostile; that P.W.4, the brother of the victim, and P.W.6, the father of the victim, have deposed that the victim had a romantic relationship with the appellant; that therefore, the offence under Section 376 of the IPC cannot be sustained.

(b) . He would also submit that even in the complaint [Ex.P2], the victim had not stated that the appellant/A1 refused to marry her, and she had only stated that the appellant's father/A2 did not permit the marriage, and therefore, the appellant cannot be accused of the offence under Section 417 IPC and prayed for acquittal.

4. Ms.Sharada Vivek, the learned Additional Public Prosecutor for the respondent, per contra, submitted that the victim and the child born to the victim died under unfortunate circumstances; that the evidence discloses that the appellant, had on the false promise of marriage, obtained consent from the victim and had sexual intercourse; that the DNA taken from the stillborn child shows that the appellant is the father of the said child; and that, therefore, the impugned Judgment cannot be faulted and prayed for dismissal of the appeal.

5. As stated above, the prosecution had examined 10 witnesses. P.W.1 is the aunt of the deceased; P.W.2 is the paternal uncle of the deceased; and P.W.3 is the paternal aunt of the deceased. All of them turned hostile. P.W.4 is the brother of the deceased; P.W.5 is the observation mahazar witness; P.W.6 is the father of the deceased; P.W.7 is the Sub-Inspector of Police, who registered the FIR; P.W.8 is the Investigating Officer who conducted the initial investigation; P.W.9 is the Scientific Officer in the Forensic Science Laboratory and who had marked the DNA report [Ex.P11]; and P.W.10 deposed on behalf of the Inspector of Police who filed the Final Report.

6. Unfortunately, in this case, the deceased is no more, and the version of the deceased is only found in Ex.P2, complaint. Her complaint is clear as regards the romantic relationship between her and the appellant. The relationship lasted for about one year. She had not disclosed their relationship to anyone. Her relationship was revealed when she was found to be pregnant. Thereafter, it appears that she approached the appellant and his father for marriage, and in the complaint, though she had not accused the appellant/A1, she had stated that the appellant's father/A2 refused to get them married.

7. P.W.4, the brother of the deceased, admitted to the relationship between the appellant and the deceased. He also would accuse the appellant's father of abusing him in filthy language when he went to request him to get the victim married to the appellant. P.W.6, the father of the deceased, speaks about the fact that the deceased became pregnant and the appellant and his father declined the request of the deceased to get the appellant married to the deceased.

8. The other evidence is of no avail to the prosecution except for the evidence of P.W.9, the Scientific Officer in the Forensic Science Laboratory, who in her report had stated that the DNA profile of the stillborn child and the DNA profile of the appellant were compared, and it was found that the appellant is the biological father of the child born to the deceased. In any case, this fact is not disputed by the appellant. The question is whether the appellant can be held guilty of the offence under Section 376 of the IPC.

9. It is well settled that if the relationship is for a long period of time and the appellant and the victim had sexual intercourse due to mutual love for each other, then the offence of 376 IPC could not be made out. In this case, admittedly, they had been in a romantic relationship for about one year. In fact, the victim had not informed anyone about the said romantic relationship and about her physical relationship with the appellant. The facts, therefore, do not suggest the commission of the offence under Section 376 of IPC. In this regard, it is useful to refer to the Judgment of the Hon'ble Supreme Court in Mahesh Damu Khare vs. Sate of Maharashtra and another reported in (2024) 11 SCC 398 which held that the offence of 376 IPC would not be made out if there is no evidence or material to show that the consent of the victim was purely on the basis of the false promise of marriage. The relevant portion reads as follows: “28. Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the women, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.”

10. As regards the offence under Section 417 of IPC, it is the evidence of P.W.4 and P.W.6 that when they both approached the

appellant and his father for the marriage, they both refused. Therefore, the appellant is guilty of the offence under Section 417 of IPC. Though it is contended by the learned counsel for the appellant that in the complaint, the victim had only referred to the act of the appellant's father, it is seen from the evidence of both P.W.4 and P.W.6 that the appellant also was guilty of the refusal to marry the victim girl.

11. The appellant had been incarcerated from 03.11.2009 to 11.01.2010 during trial and from 30.11.2021 to 14.07.2022 during pendency of the appeal, and thus, he was in custody for 297 days, admittedly. This Court is of the view that the interest of justice would be met if the appellant is sentenced to imprisonment for the period already undergone for the offence under Section 417 of the IPC, and he is directed to pay a fine of Rs.25,000/- (Rupees Twenty Five Thousand Only) within a period of three (3) weeks from the date of receipt of a copy of this order and, in default, to suffer three months of simple imprisonment. The fine amount already paid, if any, shall be adjusted against the fine amount imposed now. The appellant is acquitted of the offence under Section 376 of IPC.

12. With the above modification, this Criminal Appeal is partly allowed. 16-10-2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No dk To

1. The Inspector of Police, All Women Police Station, Thirukovilur,

2. The Additional District and Sessions Judge, (Fast Track Court), Villupuram.

3. The Public Prosecutor, High Court of Madras.

SUNDER MOHAN, J. dk CRL A No. 94 of 2022 16-10-2026