Madras High Court
S.Albert vs State. Rep. By The on 2 February, 2009
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 02/02/2009 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM Crl.A.No.729 of 2002 S.Albert . . . Appellant/ Accused Vs. State. rep. by the Inspector of Police, Navalpattu Police Station, Navalattu, Tiruchirapalli District. (Crime No.6 of 2001) . . . Respondents/ Complainant Criminal appeal is filed under Section 374 of Cr.P.C. against the judgment dated 11.04.2002 passed in S.C.No.45 of 2002 by the Addl. District and Sessions Court (Fast Track Court No.I), Tiruchirapalli. !For appellant ...Mr.T.Senthilkumar for Mr.T.A.Omprakash ^For respondent ...Mr.Muthuvenkatesan Government Advocate, (Criminal side) :JUDGMENT
Challenge in this criminal appeal is to the conviction and sentence dated 11.04.2002 passed in Sessions Case No.45 of 2002 by the Additional District and Sessions Court (Fast Track Court No.I), Tiruchirapalli.
2.The epitome of the prosecution case is that the victim by name Lilly Pushpam, aged about 17 is living with her parents in Anthoniyar Koil Street, Ironputhur Village and prior to eight months, the accused has promised to marry her and made her to believe his false promise and very often he has had carnal copulation with her. Due to carnal copulation of the accused, the victim has become pregnant and the accused has given tablets to the victim and the same has been eaten by her and due to that miscarriage has occurred and ultimately the accused has refused to marry her. Under the said circumstances, the accused is said to have committed offences under Sections 376, 313 and 417 of the Indian Penal Code.
3.The father of the victim by name Savariyar has given the complaint which has been marked as Ex.P1. On receipt of Ex.P1, the investigating officer has registered the same in Crime No.6 of 2001, Navalpattu Police Station and conducted investigation and after completing the same, laid a final report on the file of the Judicial Magistrate Court No.IV, Tiruchirapalli and the case has been committed to the Court of Sessions Division, Tiruchirapalli and subsequently transferred to the file of the trial Court.
4.On the basis of accusation made against the accused, the trial Court has framed necessary charges under Sections 376, 313 and 417 of the Indian Penal Code and the same have been read over and explained to the accused. The accused has made a candid denial and claimed to be tried.
5.On the side of the prosecution, PWs.1 to 12 have been examined and Exs.P1 to P11 have been marked.
6.When the accused has been questioned under Section 313 of the Code of Criminal Procedure, as respects the incriminating circumstances appearing in evidence against him, he denied his complicity in the crimes. However no oral and documentary evidence have been let in on the side of the accused.
7.The trial Court, after considering the evidence available on record, has found the accused guilty under Section 376 of the Indian Penal Code and sentenced him to undergo seven years rigorous imprisonment and also imposed a fine of Rs.1,000/- with default clause. The accused has also been found guilty under Section 417 of the Indian Penal Code and sentenced to undergo one year rigorous imprisonment and also imposed a fine of Rs.250/- with default clause.
8.The sum and substance of the case of the prosecution is that the accused has given a false promise of marrying the victim and made her to believe the same and subsequently he has had coition with her on several occasions and due to that she has become pregnant and subsequently he caused miscarriage by way of giving tablets and thereafter, he firmly refused to marry her.
9.As stated earlier, the trial Court has framed three charges against the accused under Sections 376, 313 and 417 of the Indian Penal Code. The accused has made a candid denial with regard to the charges framed against him. Therefore, the entire burden lies upon the prosecution to prove the offences alleged to have been committed by the accused.
10.The prosecution has set the law in motion only on the basis of Ex.P1, complaint alleged to have been given by the father of the victim by name Savariyar, who has been examined as PW1, wherein it has been stated that prior to two months the victim has reported that she is having pain in his stomach and she has been enquired by the complainant and his wife, and the victim has stated that she is having illicit intimacy with the accused for a period of six months and further she has stated that the accused has promised to marry her and believing his words, she permitted him to have coition with her and subsequently she has become pregnant and further she has stated that the accused has promised to marry her on condition that she should abort her pregnancy and he has given tablets and the same have been eaten by her and due to that miscarriage has occurred and further it is stated in Ex.P1, that on 17.01.2001, a panchayat has been convened but the victim and his parents have failed to attend.
11.The learned counsel appearing for the appellant/accused has sparingly contended that in the instant case, the accused has not given any false promise to the extent of marrying the victim and the victim has not stated anything in her evidence to that extent and the trial Court without considering the above vital aspect has erroneously found the accused guilt under Section 376 of the Indian Penal Code and further contra evidence alone is available on the side of the prosecution so as to prove the alleged miscarriage and on that score, the conviction and sentence passed against the appellant/accused under Section 417 of the Indian Penal Code is also erroneous and altogether the accused is entitled to get acquittal.
12.Per contra, the learned Government Advocate (criminal side) has also equally contended that the accused has given a false promise of marrying the victim and also made her to believe the same and under the said circumstances, the victim has had carnal copulation with the accused and due to that she has become pregnant and subsequently the pregnancy of the victim has been aborted due to intervention of the accused and thereafter, the accused has firmly refused to marry her and in order to prove the offences alleged to have been committed by the accused, the victim has been examined as PW2 and she has clearly stated in her evidence about the alleged promise given by the accused, subsequent cohabitation with the accused and also abortion and the trial Court, after making elaborate discussion has rightly found the accused guilty under Sections 376 and 417 of the Indian Penal Code and therefore, the conviction and sentence passed by the trial Court against the accused are perfectly correct and the same need not be interfered with.
13.Before excogitating the rival submissions made by either counsel, it would be more useful to look into Sections 375 and 90 of the Indian Penal Code and also the decisions cited on the side of the appellant/accused.
14.Section 375 of the Indian Penal Code reads as follows;
"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;
Firstly- 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.
Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape."
15.Section 90 of the said Code reads as follows;
"Consent Known to be given under fear or misconception- 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 or 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."
16.From the close reading of the provision of Section 375 of the Indian Penal Code, the Court can easily discern that in order to prove offence of rape, the same should be done against the will of victim and also without her consent. Further as per Section 90 of the said Code, the consent given by a person under fear or injury or under a misconception of fact, is not a consent at all.
17.The learned counsel appearing for the appellant/accused has relied upon the following decisions;
a)In 2003 Supreme Court Cases (Cri.) 775 (Uday Vs. State of Karnataka), the Honourable Apex Court has held that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. The Court must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."
From the decision referred to earlier, it is made clear that a primordial duty is cast upon the Court to find out as to whether the consent has been given voluntarily or the same has been given under misconception of facts, according to the facts and circumstances of the given case.
b) In 2005 Supreme Court Cases (Cri.) 253 (Deelip Singh @ Dilip Kumar Vs. State of Bihar) the Honourable Apex Court has held that consent given by a woman believing the man's promise to marry her would fall within a expression "without her consent" only if it is established that from the very inception the man never really intended to marry her and the promise was a mere hoax.
18.It is an everlasting principle of law that the consent given pursuant to a false representation that the accused intends to marry, can be regarded as consent given under misconception of facts. But a promise to marry without anything more will not given rise to misconception of facts, within the meaning of Section 90 of the Indian Penal Code. A representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly of the Indian Penal Code. In short, there must be a deliberate representation on the part of the accused so as to get the consent of the victim without having intention or inclination to marry her and if the above aspects are established, definitely the consent alleged to have been given by the victim is not at all a consent as per Section 90 of the said Code and the accused cannot be exculpated from the purview of Section 375 of the said Code.
19.With these legal backdrops, the Court has to pore the facts and circumstances of the present case. Even at the risk of jarring repetition, the Court would like to point out that the specific case of the prosecution is that the accused has given a false promise of marrying the victim and made her to believe and on the basis of the promise alleged to have been given by the accused, the victim has permitted him to have carnal copulation with her on several occasions and due to that she has become pregnant and subsequently at the intervention of the accused the same has been aborted. The above facts have been stated in Ex.P1. The author of Ex.P1, (father of the victim) has been examined as PW1. He simply narrated the facts to the effect that the victim has been enquired by him and his wife, and she stated that for the past eight months she has had illicit intimacy with the accused and the accused has promised to marry her and by way of believing his words, she permitted him to have carnal copulation with her on many occasions and due to that she has become pregnant and subsequently aborted due to intervention of the accused.
20.The victim has been examined as PW2. She has simply deposed that she knows the accused and he made her to become pregnant and at the stage of 2, 3 months pregnancy the accused has directed her to take tablets for causing miscarriage and if miscarriage is done, he would marry her and accordingly the accused has given tablets and she has eaten the same and due to that abortion has occurred and further she has deposed that the accused has directed her not to divulge anything to anybody with regard to pregnancy.
21.In fact, this Court has closely perused the entire testimonies given by PW2 and no where she has stated that from the inception of their relationship, the accused has given a promise to the extent of marrying her and he made her to believe his words and due to that she permitted him for having sexual intercourse with her. It is an admitted fact that PW2 is aged about 17.
22.It has already been pointed out that there must be a deliberate representation on the part of the accused so as to get the consent of the concerned victim without having intention or inclination to marry her. If the above factual aspect are established, then the Court can come to a conclusion that the consent alleged to have been given by the concerned victim is not at all a consent, as per Section 90 of the Indian Penal Code. But, in the instant case as animadverted to earlier, PW2, victim has not at all stated in her evidence to the effect that from the inception of their alleged illicit relationship the accused has given a promise to marry her and he made her to believe his words and due to that she expressed her consent for having coition with him and due to that she has become pregnant and subsequently her pregnancy has become aborted due to the intervention of the accused and thereafter the accused has refused to marry her. Therefore, the essential ingredients of Section 90 of the Indian Penal Code are not all present in the evidence of PW2, victim. It has already been pointed out that PW2 is aged about 17. Since her consent for having sexual intercourse with the accused has not come within the ambit of Section 90 of the Indian Penal Code as per her evidence, the Court cannot come to conclusion that the consent alleged to have been given by her is not at all a consent, within the meaning of Section 90 of the Indian Penal Code. Under the said circumstances, the Court cannot come to a conclusion that the accused has committed offence under Section 375 of the Indian Penal Code and therefore, he is not at all liable to be punished under the said Section.
23.Now the Court has to analyse the second charge framed against the appellant/accused. The second charge is that the accused has caused miscarriage to the victim by way of giving tablets and thereby he has committed offence under Section 313 of the Indian Penal code.
24.The trial Court has found the accused not guilty under the said Section, since both PWs.2 & 5 have given contra evidence to that effect. This Court has also perused their evidence and found that PW2 has stated to the effect that abortion has occurred only due to the tablets alleged to have been given to her by the accused. But, PW5, mother of PW2, has stated to the effect that after knowing the pregnancy of PW2, she has been taken to a lady Doctor and she has given some tablets and PW2 has eaten the same and due to that abortion has occurred. Therefore, it is quite clear that with regard to the offence under Section 313 of the Indian Penal Code, contra evidence is available and under the said circumstances, the acquittal made by the trial Court under Section 313 of the Indian Penal Code is quite correct.
25.The third charge framed against the appellant/accused is that he has given false promise of marrying the victim and also made her to believe and subsequently he has had coition with her and due to that she has become pregnant and due to his intervention abortion has occurred and subsequently he refused to marry the victim. Under the said circumstances, he is said to have committed offence under Section 417 of the Indian Penal Code.
26.The trial Court has found the accused guilty under the said Section and sentenced him to undergo one year rigorous imprisonment and also imposed a fine of Rs.250/- with default clause.
27.It has already been pointed out in many places that PW2, victim has not at all stated in her evidence that from the inception of their alleged illicit relationship, the accused has given promise of marrying her and he made her to believe his words and due to that she expressed her consent for having coition with him and due to that she has become pregnant and subsequently her pregnancy has become aborted due to the intervention of the accused and thereafter the accused has refused to marry her. Since PW2 has not spoken about the said factual aspects, it is needless to say that the prosecution has failed to prove the allegations made against the accused in charge No.3. Therefore, the Court cannot come to a conclusion that the accused has committed offence mentioned in the third charge.
28.It has already been pointed out in detail that the victim viz., PW2 has given only cryptic and fragile evidence. On the basis of her evidence, the Court cannot come to a conclusion that the accused has committed offences under Sections 376 and 417 of the Indian Penal Code. Of course, it is true that in Ex.P1, it has been stated that a false promise of marrying the victim has been given by the accused and believing his words, the victim has had carnal copulation with him and due to that she has become pregnant and subsequently miscarriage has been done due to the intervention of the accused and thereafter the accused has firmly refused to marry her. Ex.P1 has been given by the father of the victim. The only competent witness is PW2, victim, to speak about the offences alleged to have been committed by the accused under Sections 376 and 417 of the Indian Penal Code. But the victim has given a cryptic and also fragile type of evidence and her evidence is not at all sufficient to invoke the provisions of the said Sections.
29.The trial Court without giving adherence to the ricketive type of evidence given by PW2, merely on the basis of surmise and conjecture has invited the conviction and sentence against the accused under Sections 376 and 417 of the Indian Penal Code. It is an everlasting principle of law that conviction and sentence cannot be invited on the basis of mere surmise and conjecture. In fact, the trial Court has not at all considered the correct legal aspects involved in the present case. The trial Court has simply believed the allegations made in Ex.P1, complaint. The trial Court ought to have scrutinised the entire evidence given by PW2, victim. But the trial Court has not at all considered the evidence of PW2. Therefore, the judgment rendered by the trial Court is quite absurd and the approach made by it, is highly deplorable and also condemnable.
30.It has already been elucidated that the prosecution has not at all established the guilt of the appellant/accused under Sections 376 and 417 of the Indian Penal Code. Under the said circumstances, the argument advanced by the learned counsel appearing for the appellant/accused is really having attractive force and whereas the argument advanced by the learned Government Advocate (criminal side) is sans merit and altogether the conviction and sentence passed by the trial Court against the appellant/ accused are liable to be set aside.
31.In fine, this criminal appeal is allowed. The conviction and sentence passed in Sessions Case No.45 of 2002 by the Additional District and Sessions Court (Fast Track Court No.I), Tiruchirapalli are set aside and the appellant/accused is acquitted of the charges framed against him. Bail bond if any executed by the appellant/accused shall stand cancelled and fine amounts paid by him are ordered to be refunded forthwith.
gcg To:
1.The Addl. District and Sessions Judge, FTC No.I, Tiruchirapalli.