K. Pondiselvi vs State, Nachiappan @ Venkatesan and Koothakudi Shanmugam

P.R. Shivakumar, J.—The submissions made on both sides were heard. The grounds of revision and also the documents produced by the

petitioner in the form of typed set of papers were perused.

The present Criminal Revision Case has been filed against the dismissal of a petition filed by the revision petitioner herein/de-facto complainant

as Crl.M.P. No. 615/2011 praying for alteration of the charge contending that the materials produced on the side of the prosecution were enough

to make out a prima facie case for an offence punishable u/s 376 IPC. Whereas the court had chosen to frame charge for an offence u/s 417 IPC

alone against Nachiappan @ Venkatesan, the second respondent herein/first accused, based on the mistake committed by the Investigating Officer

in assuming that the consent given by the prosecutrix for sexual intercourse would take the act out of the purview of section 375 IPC defining the

offence of rape. The said petition was dismissed by the learned Principal District Munsif cum Judicial Magistrate, Karaikudi by the impugned order

dated 20.06.2011. The learned Principal District Munsif cum Judicial Magistrate, Karaikudi, Sivagangai District seems to have made an elaborate

discussion dealing with the merits of the case to arrive at a conclusion that an offence u/s 376 IPC was not made out.

Learned counsel for the petitioner would contend that no evaluation of evidence could be made at the stage of taking a decision as to whether a

charge for a particular offence can be framed against an accused or not. The learned counsel for the petitioner contends further that the court ought

not to have embarked upon a rowing enquiry as to whether there are sufficient materials to warrant a conviction at the time of framing of the charge

and that the court below ought to have considered only the availability of grounds for presuming that the accused has committed the offence

alleged. The learned Principal District Munsif cum Judicial Magistrate, Karaikudi has chosen to dismiss the petition filed by the petitioner u/s 216

Cr.P.C on the ground that the materials collected by the police including the medical certificates show consent by the petitioner for having sexual

intercourse with the second respondent herein/first accused and that a consent given believing the promise to marry, will not be equated to a

consent given on a misconception contemplated under fourth clause in section 375 IPC. Of course, fourth clause of section 375 IPC makes a

consent given by the victim under a belief that the accused is another person to whom she was lawfully married and the accused knew that he was

not her husband.

Of course there are a number of judgments to the effect that when it is proved that the prosecutrix had given consent out of promiscuity when

the prosecutrix is aged more than 16 years, then such a consent will take the act of the accused out of the purview of the definition of rape found

u/s 375 IPC. It is unnecessary to cite all those judgments. Suffice to state that the Hon''ble Supreme Court had an occasion to consider the

question whether a consent given by a girl/woman based on a false promise given by a male to marry her will make his act as one done with her

consent and thus will not fall under the definition of rape provided u/s 375 IPC. Their Lordships of the Supreme Court have clarified the position

that if the consent of the prosecutrix has been obtained by making a false promise and thereby with the intention of cheating the prosecutrix, then

such a consent gets vitiated by first part of section 90 of IPC, which reads as follows:-

A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a

misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or

misconception.

Here the misconception on the part of the petitioner, according to the submission made by the learned counsel for the petitioner is that the first

accused (the second respondent herein) made a false promise to marry her and the petitioner believed the promise to be genuine. It is the

contention of the learned counsel for the petitioner that the petitioner would not have consented for such intercourse had she known the intention of

the first accused and the fact that the first accused was making only a false promise to secure her consent. It is also the contention of the learned

counsel for the petitioner that even at the inception itself i.e. while making such a promise for getting the consent of the petitioner, the second

respondent/first accused knew that he was making a false promise and he did not have any idea of fulfilling the promise. Under similar

circumstances, the Hon''ble Supreme Court held that such a consent obtained by playing a fraud, namely by making a false promise without having

any intention to fulfill the promise or knowing that such a promisor is not going to fulfill the promise, will invalidate the consent as per section 90 of

the Indian Penal Code. When such is the case of the prosecutrix herein, whether the promise was made by the second respondent herein/first

accused with a genuine intention to fulfill the same and later on due to some change of circumstances, he was not able to keep the promise or he

made a misrepresentation regarding his intention and got the consent, can be decided only after conducting a trial. In case the statement of the

prosecutrix itself indicates that the prosecutrix was aware of the fact that the promise was made by him without an intention to keep it or that she

would have consented for such act, even if such a promise turned out to be a lip-service without any sincere intention to fulfill the promise, it is

possible to hold that no prima facie case is made out. Otherwise it is unsafe to come to the conclusion that the consent was given on promiscuity.

The said position has been made abundantly clear by the judgment of the Hon''ble Supreme Court in Yedla Srinivasa Rao Vs. State of A.P., . The

above said observation shall be enough for giving a disposal of this criminal revision case on the above said short question alone. For the said

reasons, the revision succeeds.

In the result, the criminal revision case is allowed and the impugned order of the learned Principal District Munsif cum Judicial Magistrate,

Karaikudi made in Cr.M.P. No. 615/2011 in C.C. No. 358 of 2008 is set aside. The learned Principal District Munsif cum Judicial Magistrate is

directed to convert the calendar case into a PRC and follow the procedure for committing the case exclusively triable by a Court of Session.