ABDUL RIYAZUDEEN Vs. INSPECTOR OF POLICE

JUDGEMENT

(1.) The appellant/accused in S.C.No.52 of 2015 convicted by the Trial Court by judgment dtd. 22/1/2018 for the offence under Sec. 417 IPC and sentenced to undergo six months simple imprisonment and to pay a fine of Rs.50,000.00, in default, to undergo six months simple imprisonment. Aggrieved against the same, the appellant preferred the present appeal.

(2.) The case of the prosecution is that the defacto complainant/PW1 and the appellant both studying in Tamil Nadu Institute of Labour Studies from 2011 till 2014, at that time, they developed friendship which blossomed into a love affair, both were in the habit of visiting Park, Beach, Railway Stations and other places. Their relationship further developed, the appellant took the defacto complainant to his house at Viruthachalam for Ramzan where she stayed for two days, at that time, the appellant promised the defacto complainant/victim to marry her and had physical relationship. Thereafter, the defacto complainant took the appellant to her house at Pulianthope and stayed there for two days and there also, they had physical relationship. During the final year, the appellant was staying in the victim's parents house at Veppampattu in Thiruvallur District and they were commuting to the College regularly. They both had physical relationship regularly when they were alone. The victim was initially hesitant to have any love relationship and physical relationship. The appellant convinced her stating that his father is a Muslim and mother a Hindu, both of them married and they are living happily and there will not any objection from his family side. The victim was staying in Pulianthope along with her brother and attending college, her grandmother was residing nearby. The parents of the victim staying at Veppampattu and victim used to visit her parents during the weekends. During her stay in Pulianthope, she was alone and the appellant used to visit her in Pulianthope and they were in a close relationship. On one of the day, when the victim's father had come to Pulianthope, he found the victim and the appellant together and questioned them. Initially, both not revealed their relationship. Thereafter, the victim's father informed his son/PW5 to enquire and PW5 enquired with his sister/victim, who disclosed the love affair, which was informed to PW2/mother and PW4/father. Thereafter, PW2, PW4, PW5 and their family friend viz., PW6, went to the appellant's house at Viruthachalam, informed the love affair to the appellant's parents. Initially, the parents of the appellant resisted, but later agreed for the marriage and informed that the marriage can be performed only after five to eight years after the appellant returns back from his employment in Middle East. The parents of the victims asked for an written undertaking, which was refused and thereafter, there was commotion and they left the place. The victim lodged a complaint with the respondent police, who initially registered C.S.R.No.118 of 2014 dtd. 22/5/2014. The appellant and his family were called for enquiry and for two months, conciliation talks went on. Finally, finding that the appellant and his family members were only buying time in a deceitful manner to cheat the defacto complainant, FIR/Ex.P8 registered in Crime No.5 of 2014 for the offence under Ss. 376, 417 r/w. 109 IPC. PW10 took up the investigation, visited the scene of occurrence, prepared observation mahazar/Ex.P2, rough sketch/Ex.P9, produced the victim for medical examination. PW8 is the Doctor who examined the victim recorded Accident Register/Ex.P4 on 4/7/2014 and gave her opinion confirming that the victim was subjected to sexual intercourse. The appellant obtained anticipatory bail. He was produced for medical examination. PW9/Doctor examined the appellant and gave Potency report/Ex.P7. On concluding of investigation, charge sheet filed against the appellant/A1 and his parents/A2 and A3. During trial, PW1 to PW10 examined, Ex.P1 to Ex.P9 marked and MO1 produced on the side of the prosecution. On the side of the defence, DMO1 to DMO5 marked. On conclusion of trial, the Trial Court acquitted A2 and A3, but convicted the appellant as stated above.

(3.) The contention of the learned counsel for the appellant is that the appellant and PW1 were studying degree course in Tamil Nadu Institute of Labour Studies during 2011-2014, at that time, they developed friendship which subsequently blossomed into a love affair. The appellant was in relationship with PW1 as classmate and they had close relationship. It was the victim who voluntarily came to the house of the appellant during Ramzan in the year 2012 and stayed there. The victim was staying along with her brother in Pulianthope near her grandmother's house, her parents were staying in Veppampattu, Thiruvallur District the appellant used to visit the victim at Pulianthope and used to do combined studies. On one occasion there was a small fight, the appellant was heart broken, consumed poison and later he survived that was the intensity of love, further their bondage thickened. The appellant and the victim both educated, in their early teens, developed close relationship, admitted by the victim, the relationship was mutual and not a forced one. It is not the case that the victim not knowing the consequences continued her physical relationship with the appellant. Even before the Doctor/PW8, victim informed her continuous physical relationship with the appellant from the year 2012 to 2014 which is recorded in Accident Register/Ex.P4. PW8/Doctor had given a report that there is no evidence of any external injuries confirming that even the physical relationship was mutual and not by force. Both parents were aware about the love affair between the appellant and the victim and both the families shown no resistance, which embolden them and they continued their relationship. MO1 and DMO1 to DMO5 are the photographs taken during the College farewell day function and the victim took photographs with the appellant as well her classmates. The parents of the victim insisted for immediate marriage, the plans of appellant and his family members were otherwise. They wanted the appellant to get employed in Middle East, make some good earnings for few years and thereafter come back and have his marriage, and they sought five years time which was not agreeable and there was some misunderstanding in this regard. This misunderstanding manifested, blown out of proportion and projected as though it is a case of rape.