AI Structured Summary
Not yet generated for this judgment
Judgment
S. Palanivelu, J.—The following is the graphical narration of the prosecution case:
1(a) P.W. 1 and 1st accused are belonging to Nolambur village. The were loving each other for two years prior to the date of occurrence. On
10.11.2003 at about 8.00 p.m. when nobody else in the house of P.W. 1, 1st accused got entry into the house and attempted to have sexual
relationship with her. When she refused, he stuffed her mouth with cloth and forcibly had sexual intercourse. She did not inform the occurrence to
anybody as he promised to marry her. Subsequently, on various occasions he had sexual intercourse with her by obtaining her consent through
false representations that he would marry her. She became pregnant. After that, so many occasions she has asked him to marry her for which he
told that only after terminating fetus he will marry her. She informed her parents about the happenings. Thereafter, a panchayat was conducted
wherein the 1st accused agreed to marry her. But later on he refused to marry her. On 21.5.2004 at about 10.00 a.m., accused 1 to 4 restrained
P.W. 1, caught hold of her hair and stamped on her stomach by legs.
1(b) Narrating the above said allegations P.W. 1 gave complaint with the respondent police on 22.5.2004. On receipt of the complaint, the
Inspector of Police P.W. 8 lodged FIR Exhibit P-5 under Sections 376, 417 and 506 I.P.C. and sent the FIR to the Court and copies to the
superior officers. She gave requisition to the Court to send P.W. 1 for medical examination. As per the requisition of Judicial Magistrate No. 1,
Tindivanam, dated 24.5.2004 P.W. 9 Doctor, examined P.W. 1 and issued certificate Exhibit P-7 stating that she was 18 to 20 weeks pregnant.
Thereafter the investigation was taken up by P.W. 14, Women Inspector of Police, Tindivanam. In the meantime a female child by name Leena
Priya born to P.W. 1. Hence, P.W. 14 gave requisition to the Judicial Magistrate to send the child for D.N.A. test to find out her paternity. P.W.
13 Assistant Director, Forensic Science Research and Development Department, Chennai, on request letter from the Judicial Magistrate No. 1,
Tindivanam, conducted D.N.A. Test and issued Report Exhibit P-10. In the Report it is stated that the accused is the father of the child. After
completion of investigation, P.W. 14 filed charge sheet on 9.6.2003 against all the 4 accused.
After the prosecution evidence were over, the accused were questioned u/s 313 Cr.P.C. as to the incriminating materials available against them in
prosecution evidence. All of them denied complicity to the offences. Complainant side 14 witnesses were examined and 14 exhibits were marked.
Neither any witnesses were examined nor any exhibits were marked on the side of the accused.
After analysing the evidence on record, the learned trial Judge has found all the accused not guilty and acquitted them from the charges.
Aggrieved at the order of acquittal the de facto complainant is before this Court by way of this appeal.
Point for Consideration:
Whether the charges framed against the accused 1 to 4 have been established by the prosecution beyond all reasonable doubts?
Point:
The learned counsel for the petitioner Mr. Baskaran would submit that inasmuch as the first accused had sexual intercourse with P.W. 1 by
obtaining her consent by making false promise that he would marry her, he is liable to be punished u/s 417 I.P.C., that it is well settled proposition
of law that in cases such as rape, delay in giving complaint usually occurs and the case of prosecution cannot be thrown out on that ground, that the
report of the DNA Analysis (Exhibit P-10) categorically states that the first accused is the father of the child, which is an overwhelming evidence to
establish the fact that the first accused is medically fit for sexual intercourse, and hence the conclusion of the trial Court that there is no evidence
that the first accused is medically fit to have sexual intercourse is unsustainable, that the trial Court has failed to look into Section 106 of the
Evidence Act and wrongly concluded that lack of consent has to be proved by the petitioner which led to illegal acquittal of the accused and that
the findings of the trial court is against well-settled principles of appreciation of evidence which is liable to be set aside and the accused to be
punished.
The learned counsel for the respondents 2 to 5 would say that there is no plausible materials to interfere with the judgment of the trial Court, that
the Court below has rendered proper findings after thorough scrutiny of oral and documentary evidences, that the Court below has correctly
observed that the prosecution has not proved the ingredients of each of the offences, that a false promise is not a fact within the meaning of the
penal code u/s 90 of I.P.C. and that a careful scrutiny of evidence on record would show that the first accused did not involve in any offence as
alleged by the prosecution and hence, the revision may be dismissed.
As far as the age factor to be found out in this case with that of P.W. 1 is concerned she was aged above 20 years and the first accused was 23
years at the time of occurrence. There is no materials on the side of the prosecution to prove that P.W. 1 was below the age of 16 years. Since she
has aged above 16 years and the same has been admitted by her, she had sufficient intelligence to understand the significance and consequence of
the act for which she was consenting to. At the time of examination of P.W. 1 before the Court on 16.11.2005 she was aged 22 years. The first
occurrence occurred on 10.11.2003 as per her evidence. Hence, on the date of occurrence she was 20 years. On this score, no offence is made
out on the side of the accused.
It is the argument of the learned counsel for the petitioner that since the consent was obtained by false representations and later he refused, the
1st accused is liable to be punished u/s 417 I.P.C. The learned counsel for the respondent would rely upon the oral testimony of P.W. 1. The
cross examination would show that P.W. 1 has got knowledge about the consequence of earlier intercourse before marriage. Her cross
examination goes thus:
The above said part of evidence would indicate that she is well aware of the consequences which would arise if sexual intercourse takes place
before marriage. Learned counsel for the respondent taking advantage of this part of evidence cited a decision of Honourable Supreme Court in
Uday Vs. State of Karnataka, wherein Their Lordships have observed as follows:
The consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom
she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false
promise is not a fact within the meaning of the Code. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply
in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event
the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he
proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That
is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She
thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was
conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the
conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in
consequence of any misconception of fact.
After going through the above judgment, it has to be necessarily observed that consent was obtained by P.W. 1 and in view of the above, the
finding of the trial Court Judge is sustainable in law. There is no valid ground made out to interfere with the judgment of the trial Court which
deserves to be confirmed and it is accordingly confirmed. The revision is devoid of merits. This point is answered as indicated above. In fine, the
Criminal Revision Case is dismissed.