Soundarrajan vs State of Tamil Nadu

A.C. Arumugaperumal Adityan, J.—This appeal has been preferred against the judgment in S.C. No. 24 of 2005 on the file of the learned

Additional District and Sessions Judge, FTC. No. II, Ranipet.

According to the prosecution some 8 months prior to 31.8.2002 the accused had cohabited with the complainant, which resulted in her

pregnancy. It is the case of the prosecution that prosecutrix had given her consent because the accused under the pretext of marrying her had

sexual intercourse with her. The accused has been charged u/s 417 & 376 IPC.

The learned Judicial Magistrate, after taking the case on file under PRC. No. 15 of 2004, had issued summons to the accused and on his

appearance furnished copies u/s 207 of Cr.P.C., and since the case is exclusively triable by the Court of Sessions, had committed the case to the

Court of Sessions u/s 209 of Cr.P.C. The learned Additional District and Sessions Judge, FTC. No. II, Ranipet, who tried the case, on the

appearance of the accused had framed charges u/s 417 & 376 IPC and when questioned, the accused pleaded not guilty. On the side of the

prosecution, P.W.1 to P.W.11 were examined and Ex.P.1 to Ex.P.14 were exhibited and no material object was marked.

P.W.1 is the prosecutrix. According to her, on the date of occurrence the accused, who is a married man, used to follow her when she was

going to graze the cattle and under the pretext of marrying her, had cohabitation, which took place at the sugarcane garden on one Perumal. She

would admit that even thereafter she had sexual intercourse with the accused on very many occasions, which resulted in her pregnancy. Since her

father was admitted in Thambaram TB sanitarium for nearly four months and her mother was staying along with her father at Thambaram TB

sanitarium, she could not inform her parents. After their return, they enquired about the structural changes in her body, which compelled her to

reveal the fact that the accused under the pretext of marring her had sexual intercourse with her. Even though there was an attempt to abort the

child it ended in futile. Thereafter she preferred a complaint with the police under Ex.P.1. She would further admit that she gave birth to a still born

child.

P.W.2 is the father of P.W.1. He would depose that he heard from P.W.1, his daughter, that the accused had committed sexual intercourse with

her and that he made a request to the accused to marry P.W.1, but the accused had failed to heed to the request. Hence, his daughter P.W.1

preferred Ex.P.1-complaint.

P.W.3 is the mother of P.W.1. She has also corroborated the evidence of P.W.1 & P.W.2.

P.W.8 is the then Sub-Inspector of Police, Annaikattu Police Station. According to him, on 10.9.2002 at about 5.00 pm P.W.1 appeared in the

police station and preferred Ex.P.1-complaint, which was registered by him under Annaikattu Police Station Cr. No. 318 of 2002 u/s 376 & 417

IPC. Ex.P.9 is the copy of the FIR.

P.W.10 & P.W.11 are the investigating Officers in this case. P.W.10 on the basis of the complaint proceeded to the place of occurrence on

13.9.2002 and examined the witnesses and prepared Ex.P.2-observation mahazar in the presence of P.W.4 and another witness Jegadesan. He

has also drawn a rough sketch Ex.P.11 and on the same date he had arrested the accused at 2.00 pm and produced him before the Judicial

Magistrate for judicial remand. He has also given a requisition for subjecting the accused for chemical examination. Ex.P.8 is the age certificate for

the victim girl obtained by him from the headmaster of the Gyanaiya School. He also registered another case under Cr. No. 372 of 2002 u/s 174

of Cr.P.C., on the basis of the complaint preferred in respect of the still born child to P.W.1. He has also visited the place of occurrence where the

still born child was born and prepared Ex.P.3-observation mahazar and drawn Ex.P.12-rough sketch. He had conducted inquest on the death of

the child. Ex.p.13 is the inquest report. Ex.P.14 is the FIR, regarding the birth of the still born child.

P.W.5 is the doctor, who had examined the accused and issued Ex.P.5-certificate stating that the accused is potent.

P.W.6 is the lady doctor, who had examined P.W.1 and issued Ex.P.6 and Ex.P.7 stating that P.W.1 was subjected to sexual intercourse and

that P.W.1 was carrying about 32 weeks foetus.

P.W.7 is the Headmaster of the School, who had issued Ex.P.8-birth certificate. P.W.9 is the doctor, who had conducted the autopsy on the

deceased child born to P.W.1. Ex.P.10 is the postmortem certificate. P.W.11 after completing the investigation and after following the formalities,

has filed the charge sheet against the accused.

When incriminating circumstances were put to the accused u/s 313 of Cr.P.C., the accused would deny his complicity with the crime. The

accused has produced Ex.D.1-report of DNA test. After going through the evidence available both oral and documentary, the learned trial judge

has acquitted the accused for an offence u/s 417 IPC, but convicted the accused u/s 376 IPC and sentenced him to undergo 7 years RI and

slapped a fine of Rs. 5,000/- with default sentence, which necessitated the accused to prefer this appeal.

Now the point for determination in this appeal is whether the conviction and sentence u/s 376 IPC is sustainable for the reasons stated in the

memorandum of appeal?

The Point:- 14(a) Heard the learned Counsel appearing for the appellant Mr. N.S. Sivakumar and the learned Additional Public Prosecutor

Mr. V.R. Balasubramanian and considered their respective submissions. The learned trial judge has convicted the accused only on the basis of the

evidence of P.W.1. But the learned trial judge before convicting the accused u/s 376 IPC has failed to see whether the offence defined u/s 375

IPC has been made out against the accused to warrant conviction u/s 376 IPC. According to her (P.W.1) own statement under Ex.P.9-FIR, the

age of the prosecutrix was 18 years. To show the age of the victim girl the prosecution has examined P.W.7 and marked Ex.P.8. Ex.P.8 is the age

certificate given by P.W.7-Headmaster of the higher secondary school in which P.W.1 had studied. According to the evidence of P.W.7 the date

of birth of P.W.1 as per the school records is 9.6.1984. According to the case of the prosecution, the occurrence would have taken place 8

months prior to 81.9.2002 ie., during January,2002. So on the date of occurrence prosecutrix P.W.1 must be about 17 years. The evidence of

P.W.1 is that under the pretext of marrying her the accused had sexual intercourse with her for more than one occasion. But the trial Court had

acquitted the accused from the charge u/s 417 IPC. There is no appeal preferred by the State Government against the findings of the learned trial

Judge acquitting the accused from an offence u/s 417 IPC. According to P.W.1, the accused had sexual intercourse with her only with her

consent. So u/s 375 IPC the descriptions under firstly, secondly, thirdly, fourthly, fifthly and sixthly will not be attracted. Admittedly P.W.1 is more

than 16 years of age on the date of occurrence. Under such circumstances, the offence u/s 375 IPC cannot be said to be made out against the

accused.

14(b) The learned Counsel for the appellant relying on 2007(3) Supreme 489 (Naravan @ Naran v. State of Rajasthan), would contend that if

there is no corroboration from any evidence to the testimony of prosecutrix then the accused cannot be convictet. But in the said case the offence

of rape, according to the prosecution, was committed while the accused was traveling with the prosecutrix in a tractor, wherein according to the

prosecutrix, the accused had committed the offence of rape thrice, but in the evidence she has stated the the accused had raped twice. Further the

evidence let in in that case would go to show that the prosecutrix did not raise any hue and cry at the time when she was subjected to the offence

of rape on a rough surface, but the medical report shows no injury on her body or her private parts. Under such circumstances, it was held by the

Honourable Apex Court in that case that the conviction and sentence against the accused u/s 376 IPC cannot be sustainable.

14(c) The learned Counsel for the appellant relying on Jintu Das Vs. State of Assam, , would contend that even according to the case of the

prosecution the prosecutrix at the time of the commission of offence was aged more than 16 years and under consenting to act of sexual

intercourse on promise of marriage after knowing the nature of implication of such act will not attract an offence against the accused u/s 375 IPC

warranting conviction u/s 376 IPC. The exact observation in the above said dictum runs as follows:

In view of the evidence as discussed above and in the facts and circumstances, the irresistible conclusion is that if the accused had sexual

intercourse with her it was with her consent. This has been corroborated by circumstances that she did not tell anybody about the sexual

intercourse with the accused-appellant till she became pregnant. If a full grown woman consents to the act of sexual intercourse on a promise of

marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by

misconception of fact.

...

The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a

misconception of fact at the inception of the act itself. In order to come with the meaning of misconception of fact, the fact must have an immediate

relevance. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she

becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in and

in such a case to pardon the act of the girl and fasten criminal liability on the accused.

For the same proposition of law the learned Counsel for the appellant would rely on a dictum in Uday Vs. State of Karnataka, , wherein also in a

similar situation Honourable Apex Court has held as follows:

In the instant case the prosecutrix was a grown up girl studying in a college. She was deeply in love with the accused 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,a nd in fact succumbed to it. 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 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. Further there is no

evidence to prove conclusively that the appellant never intended to marry her. There is hardly any evidence to prove the fact that the prosecutrix

had consented to have sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due

course on the contrary the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given

by the prosecutrix was that result of their deep love for each other.

In the case on hand it is in evidence that the accused is a married man and after knowing about the affairs between the accused and the prosecutrix

the wife of the accused had left the matrimonial home. It is further in evidence that the accused had no issues through his wife. It is the case of the

prosecutrix that she became pregnant only because of the accused. To rebut this part of the evidence of the prosecutrix, the accused had produced

Ex.D.1-reprot of DNA test conducted for the prosecutrix and the accused. The result of the report under Ex.D.1 reveals that the accused is not

the father of the child born to P.W.1. So it goes without saying that apart from the accused the prosecutrix P.W.1 had sex with other person. So

from the available evidence mentioned above will clearly go to show that an offence u/s 375 IPC has not been made out against the accused to

warrant conviction u/s 376 IPC. Point is answered accordingly.

In fine, the appeal is allowed and the conviction and sentence against the accused in S.C. No. 24 of 2005 on the file of the learned Additional

District and Sessions Judge, FTC. No. II, Ranipet, is set aside and the accused is acquitted from the charges levelled against him. Bail bond shall

stand cancelled. The fine amount, if any paid by the accused, shall be refunded to the accused.