1

NON-REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL  No(s).  1178 OF 2011 (Arising out of SLP(Crl.)No.9416 of 2015)

PRABHU @ KULANDAIVELU                              Appellant(s)

                               VERSUS

THE STATE OF TAMIL NADU                            Respondent(s)

J U D G M E N T

BANUMATHI, J.:

(1) Leave granted.

(2) Being aggrieved with the conviction and also sentence of

imprisonment  imposed  upon  him  under  Sections  313  and  417

I.P.C., the appellant has filed this appeal.

(3) Case  of  the  prosecution  is  that  the  appellant-accused,

Prabhu @ Kulandaivelu, was related to Tamilselvi (PW-1) and

acquainted with her under the false promise of marriage and had

sexual  intercourse  number  of  times  with  PW-1  in  2003,

resultantly PW-1 became pregnant.  It is alleged that against

2

the wishes of PW-1, the appellant took PW-1 to Rudhramoorthy

Hospital and compulsorily aborted her fetus.  The appellant and

his  father  (since  acquitted)  were  charged  for  the  offences

punishable under Sections 376, 417, 313 and 506(ii) I.P.C.  The

Trial Court convicted the appellant for all the offences and

sentenced him to undergo rigorous imprisonment for ten years

for the offence under Section 376 I.P.C.; one year rigorous

imprisonment for the offence under Section 417 I.P.C.; for ten

years for the offence under Section 313 I.P.C. and fine of

Rs.500/- for the offence under Section 506 (ii) I.P.C.

(4) On appeal, the High Court acquitted the father of the

appellant from all the charges.  The High Court acquitted the

appellant-accused  under  Section  376  I.P.C.  but  affirmed  the

conviction and sentence of imprisonment of the appellant under

Sections 417 and 313 I.P.C.   

(5) We have heard Ms. Thilakavathi G., learned senior counsel

appearing for the appellant-accused and Mr. M. Yogesh Kanna,

learned counsel appearing for the respondent-State.  We have

also perused the impugned judgment and the evidence/materials

on record.

(6) In her evidence PW-1 has categorically asserted that the

appellant gave her false promise that he would marry her and

had  sexual  intercourse  with  her  number  of  times.   The

expression “Cheating” is defined in Section 415 I.P.C. and it

3

reads as under :

“415 Cheating -  whoever, by deceiving any person,

fraudulently or dishonestly induces the person so

deceived to deliver any property to any person, or

to  consent  that  any  person  shall  retain  any

property, or intentionally  induces the person so

deceived to do or omit to do anything which he

would not do or omit if he were not so deceived,

and which act or omission causes or is likely to

cause damage or harm to that person in body, mind,

reputation or property, is said to “cheat”.

Explanation.-A dishonest concealment of facts is

a deception within t he meaning of section.

(emphasis added)

(7) By the evidence of PW-1, the prosecution has established

that  the  appellant  herein  had  induced  PW-1  to  have  sexual

intercourse with him by falsely promising her that he will

marry  her.   The  conviction  of  the  appellant-accused  under

Section 417 I.P.C. is based upon proper appreciation of the

evidence of PW-1 and we do not find any reason to interfere

with the same.

(8) Insofar as the conviction of the appellant under Section

313  I.P.C.  is  concerned,  the  evidence  of  Dr.  Valli  (PW-8)

assumes  importance.   In  her  evidence  Dr.  Valli  (PW-8)  has

stated that on 21st October, 2004 at 12.00 noon PW-1 came to the

hospital with bleeding and lower abdominal pain along with one

whose  name  is  stated  to  be  registered  as  “Prabhu”,  as  her

husband.  Dr. Valli (PW-8) further stated that in order to save

4

the life of PW-1 after obtaining her consent Dr. Valli (PW-8)

has medically terminated the pregnancy of PW-1.  Though PW-1

has  stated  that  the  abortion  was  done  compulsorily  at  the

instance of the appellant, the evidence of Dr. Valli (PW-8)

does not support the version of PW-1.

(9) The essential ingredient of Section 313 I.P.C. is that

“Causing miscarriage without woman’s consent”.  But as per the

evidence of Dr. Valli (PW-8) consent of PW-1 was taken and,

therefore, it cannot be said that the ingredients of Section

313 I.P.C. has been established by the prosecution.

(10) That apart, as seen from the evidence of PW-8, even when

PW-1 was brought to the hospital, she was already bleeding and

had lower abdominal pain and there was nothing in evidence to

connect that act with the appellant-accused.  In the light of

evidence of Dr. Valli (PW-8) and other evidence, the conviction

of the appellant under Section 313 I.P.C. cannot be sustained

and is liable to be set aside.

(11) In  the  result,  the  conviction  of  the  appellant  under

Section 417 IPC and the sentence of imprisonment for the same

is confirmed. However, the conviction of the appellant-accused

under Section  313 IPC  is set aside and this appeal is allowed

in part.

5

(12) The appellant is undergoing sentence of imprisonment from

8th October,  2015  and  has  already  undergone  imprisonment  of

about three years.  The appellant is ordered to be set at

liberty forthwith unless his presence is required in connection

with any other case.  

..........................J.                 (R. BANUMATHI)

..........................J.         (INDIRA BANERJEE)

NEW DELHI, SEPTEMBER 18, 2018.