Raman vs State <BR>State Vs Raman

Pudmini Jesudurai, J.—The accused, who has been convicted by the Assistant Sessions Judge, Devakottai, in S.C. No. 145 of 1980 for offences under Sections 493 and 376, I.P.C. and sentenced to undergo imprisonment for a period of three years and a fine of Rs. 100/- for each of the offences, which conviction and sentence had been confirmed by the Sessions Judge, Ramanathapuram at Madurai in C.A. No. 84 of 1986 has filed Crl. R.C. No. 182 of 1986 has filed this appeal challenging the conviction and sentence. When the revision was admitted, the court suo motu issued notice for enhancement of the sentence and Crl. R.C. No. 384 of 1987 is for enhancement of the sentence on the accused.

The charge against the Petitioner is that about six months prior to 12-9-1984, he had sexual intercourse with P.W.1, aged about 15, promising to marry her, that she conceived and later, the Petitioner refused to marry her and instead, married some-one else, and had thus committed offences punishable under Sections 493 and 376, I.P.C.

The facts of the case are briefly as follows: P.W.1, who was aged about 15, at the time of the occurrence is the daughter of P.W.2. P.W.4 is her senior paternal uncle and P.W.3 is the wife of P.W.4. The Petitioner and P.Ws.1 to 4 belong to Ulagampatti. The Petitioner was related to P.W.1 as uncle. About six months prior to 12-9-1984, while P.W.1 was engaged in grazing cattle, the Petitioner had sexual intercourse with her promising to marry her. On three occasions, the Petitioner and P.W.1 had sexual intercourse, as a result of which, P.W.1 conceived. She informed about this to her aunt P.W.3. P.W.4 also had witnessed P.W.1 and the Petitioner having intercourse. In due time, P.W.2, the father of P.W.1 was informed, and through mediators, they requested the Petitioner to marry P.W.1. The Petitioner refused to marry. P.Ws.1 and 2, therefore, went to the police station at Ulagampatti and gave a complaint Ex.P.1, to P.W.6 the Sub Inspector of Police. This was on 12-9-1984. P.W.6 registered Ex.P.1 as his station Crime No. 115 of 1984 for an offence u/s 376, I.P.C. He sent P.W.1 for medical and radiological examination.

P.W.5, the medical officer attached to the Government Rajaji Hospital, Madurai clinically examined P.W.1 and ascertained her age to be 16. She also physically examined P.W.1 and issued Ex.P.2 certificate. She found hymen ruptured. P.W.1''s physical condition showed that she had sexual intercourse, but her uterus was normal and at that stage, she could not offer any definite opinion as to whether P.W.1 was pregnant or not.

P.W.6 continued the investigation, and after completing it, laid charge sheet against the Petitioner for offences under Sections 417 and 376, 1.P.C. The trial court, after committal, framed charges against the Petitioner under Sections 376 and 493, 1.P.C. Meantime, P.W.1 had delivered the child and was bringing it up.

During trial, on behalf of the prosecution, P.Ws.1 to 6 were examined, Exs.P.1 to P.6 were marked. The Petitioner when questioned denied having committed any crime and examined one Nallal as D.W.1, whose evidence is not very relevant.

The learned Assistant Sessions Judge accepted the case of the prosecution in its entirety and convicted and sentenced the Petitioner as stated above and the convictions and sentences having been confirmed by the Sessions Judge in Appeal, the present revision is filed by aggrieved accused.

Thiru R. Sami, learned Counsel for the Petitioner would contend that, as far as the offence u/s 493, I.P.C. was concerned, even if the entire prosecution case was accepted, Section 493 I.P.C. would not apply and the conviction has to be set aside. The ingredients of Section 493 I.P.C. are totally different and this has been missed by both the courts below. Regarding the conviction for the offence u/s 376 I.P.C., the learned Counsel contended that admittedly, the sexual act was with the consent of P.W.1 and there being sufficient material to show that P.W.1 was above 16 years, the conviction for the offence u/s 376 cannot be legally sustained. The learned Counsel therefore urged that the revision had to be allowed in its entirety.

Per contra, the learned Public Prosecutor, by referring to the salient features of the prosecution case, particularly the evidence regarding the age of P.W.1 showing her to be below 16, sought to sustain the conviction and sentence.

The question that arises for consideration is whether the conviction and sentence on the Petitioner can be legally sustained?

As far as the offence u/s 493 I.P.C. is concerned, a mere reading of the above provision would show, that it would not apply to the facts of this case. Section 493 I.P.C. is as follows;

493 Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.

Every man who by deceipt causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that behalf, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

One of the necessary, ingredients for an offence u/s 493 I.P.C. is that the accused should make the victim believe, that she is lawfully married to him. In other words, the victim should be under the impression that she is the wife of the accused, while, as a matter of fact, it is not so. That impression must have been brought about by the accused by deceitful means. It is not the case of P.W.1, that the Petitioner herein represented that she was his wife or that she was lawfully married to him. The representation was that, he would marry her in future. There was no representation by the Petitioner that P.W.1 was his wife. On this assurance that he would marry her in future, the Petitioner has had sexual intercourse with P.W.1. This would not attract Section 493 I.P.C. The conviction u/s 493 of the Petitioner will have to be set aside.

As far as the conviction u/s 376 is concerned, we shall first refer to the definition of ''rape'' as found in Section 375, I.P.C.

A man is said to commit ''rape'' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions First - Against her will Secondly - Without her consent Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly, With or without her consent, when she is under sixteen years of age.

It is the admitted case of the prosecution that the sexual acts were committed with the consent of P.W.1. It is not the case of P.W.1, that her consent was obtained by putting her in fear of death or hurt, so that it would come within clause ''thirdly'' of Section 375 I.P.C. On the Contrary, her evidence is that she consented to it, because the Petitioner promised her that he would marry her in future. Having sexual intercourse with a girl above 16 years, with the consent of the girl, promising to marry her in future, is not an offence u/s 375, I.P.C. Sexual intercourse with the consent of the girl in a situation such as in this case, would be an offence if it falls within clause sixthly of Section 375 I.P.C. i.e. when the girl is under 16 years of age.

It has now to be seen whether the prosecution has established that P.W.1 is under 16 years of age. The evidence relating to the age of P.W.1 is far from satisfactory. Ex.P.1 given by P.W.1 six months after the occurrence, gives her age ''about 15''. This could be, below 15 or above 15. Admittedly, P.W.1 had not attended any school and her birth had not been registered. Her parents and relatives viz., P.Ws.2 to 4 are illiterate persons, who have vague notions about age and time. The oral evidence, therefore, is not very helpful to the prosecution. P.W.5, the Medical Officer, who has clinically examined P.W.1 has stated that the age of P.W.1 is ''16''. When P.W.5 says that the age of P.W.1 is 16, we take it that it is, ''completed sixteen''. The requirement of clause sixthly of Section 375 I.P.C. is that the victim should be under sixteen. P.W.1, therefore, will not fall under clause sixthly of Section 375, I.P.C. On going through the records and the unfiled documents, it is seen that P.W.5 has stated during investigation that her opinion regarding the age of P.W.1 on clinical and physical examination was 17. However, this contradiction has not been put to P.W.5 by the defence. In matters such as this, when there is no birth extract or school certificate or satisfactory oral evidence, the best evidence regarding the age would be, the opinion of the Radiologist, obtained on radiological examination, based on the data available regarding the ossification of bones. P.W.1 had been radiologically examined. In fact, the Radiologist has been cited as witness No. 9 in the charge sheet. For reasons best known to the prosecution, examination of the Radiologist has been dispensed with. The court records would show that the Radiologist had offered opinion that P.W.1 was below 18. Whatever that be, even from the evidence of P.W.5 given during trial, it is clear that P.W.1 had completed sixteen years of age. She was therefore not ''under sixteen'' so that her consent would still make the Petitioner liable for punishment u/s 376 of the Indian Penal Code. Once it is found that P.W.1 is not ''under 16'', and once it is admitted by the prosecution that the sexual intercourse was with the consent of P.W.1, no offence u/s 376 of the Indian Penal Code is made out. Both the courts below have overlooked this aspect regarding the age of P.W.1 and the effect of her consent to the sexual act. I am therefore unable to sustain the conviction of the Petitioner for an offence u/s 376 I.P.C., also.

Accordingly, the conviction for the offences under Sections 376 and 493 I.P.C. are set aside. Crl. R.C. No. 182 of 1987 shall stand allowed. Bail bond, if any, shall stand cancelled and fine amount, if paid, shall also be refunded to him. Crl. R.C. No. 384 of 1987 for enhancement of the sentence shall stand dismissed.