IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF DECEMBER, 2017 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL R.B.
CRIMINAL APPEAL NO.1066/2013 BETWEEN:
SRI. PAPANNA S/O PAPANNA @ APPANNA NOW AGED ABOUT 25 YEARS RESIDENT OF NAKLLARAHATTI VILLAGE CHALLAKERE TALUK-577522 CHITRADURGA DISTRICT-577501. ... APPELLANT (BY SRI. SRINIVAS N., ADV) AND:
STATE OF KARNATAKA BY PARASHURAMPURA POLICE STATION CHALLAKERE TALU-577522 CHITRADURGA DISTRICT-577501. ... RESPONDENT (BY SRI. S. VISHWAMURTHY, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF CR.P.C., PRAYING TO SET ASIDE THE ORDER DATED 22/31.8.13 PASSED BY THE ADDL. DIST., AND S.J., CHITRADURGA IN S.C. NO.135/10 – CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 417, 376, 504, 506 AND 201 OF IPC ETC.
THIS CRIMINAL APPEAL COMING ON FOR ‘FURTHER ARGUMENTS’ THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT This is the appeal preferred by the appellant- accused being aggrieved by the judgment and order of conviction dated 22.08.2013 passed by the Additional District and Sessions Judge, Chitradurga in Sessions Case No.135/2010. By the said judgment and order of conviction, the learned Sessions Judge convicted the appellant-accused for the offences punishable under Sections 376, 417, 504, 506 and 201 of Indian Penal Code and he has been sentenced to rigorous imprisonment for 12 years and shall also pay fine amount of Rs.5,000/- for the offence punishable under Section 376 of Indian Penal Code and for the other offences. He was sentenced to undergo imprisonment for one year, two years and another two years and then three years for the offences punishable under Section 417, 504, 506 and 201 of Indian Penal Code respectively along with fine amount. Being aggrieved by the said judgment and order of conviction, the appellant is before this court challenging the judgment and order of conviction and its legality and correctness on the grounds as mentioned in the appeal memorandum.
2. Brief facts of the prosecution case as per the complaint averments is as follows:-
The victim girl herself is the complainant by name one D. O. Susheelamma D/o Dodda Obayya wherein, she has alleged that she is residing along with her parents and brothers and sisters. The accused person by name Papanna @ Appanna is known to their family since many years. About 1 ½ years back earlier to filing of the complaint, the said Papanna told herself and her parents that he will marry the complainant and he used to come to the house of the complainant often. And whenever he used to come and when other family members are not in the house and making her to believe that he is going to marry her and inspite of her protest, he committed forcible sexual intercourse on her. And when he was committing such sexual intercourse on some occasion, they were caught red handed by the parents and brothers and sisters. And they all advised the petitioner-accused that it is not correct on his part to do like this before the marriage and he was advised and even at that time also as the appellant-accused again told that he is going to marry the complainant, they kept quiet. There afterwards, when the complainant came to know that the accused wanted to marry another girl and when the complainant and her family members came to know about the same and on 07.06.2010 morning at 9:00 am, when the appellant-accused came nearby the house of the complainant, the complainant and her parents told him that it is not proper for him to marry another girl and complainant told him that he has already had sexual intercourse with her. At that time the appellant-accused abused them in a filthy language stating that “neevu sooleyaru nimmannu maduveyaguvudilla yendu koogadi, soolemunderu, halka munderu” when he abused in these words, the senior uncle of the complainant by name Nalajavaraiah and his son Girish came and pacified the galata. Even then Papanna posed life threat to them. Thereafter, they brought it to the notice of their relatives, they all advised them to give police complaint. Hence, the complainant filed a complaint as against the appellant- accused. On the basis of the said complaint, FIR came to be registered for the alleged offences punishable under Sections 417, 420, 376 and 506 of Indian Penal Code in Crime No.237/2010.
3. After investigation, the Investigation Officer filed a charge sheet for the offences punishable under Section 417, 420, 376, 506 and 504 of Indian Penal Code.
4. After hearing both the sides the learned Sessions Judge framed the charges and when the charges were read over and explained to the accused, the appellant-accused denied the charges and claims to be tried. Accordingly, the matter was posted for trial. The prosecution in support of its case, examined in all 13 witnesses as PW-1 to 13 and got marked documents Ex. P1 to P13 and also got marked Material Objects MO.1 to 4. After examination of the accused under Section 313 of the Criminal Procedure Code, the defence counsel examined one witness as DW-1 and got marked the documents Ex.D1 to D9.
5. After considering the materials on both the sides, ultimately the learned Sessions Judge held that the accused is guilty for the said offences and convicted the appellant-accused.
6. Being aggrieved by the said judgment and order of conviction and the sentences imposed, the accused is before this court in this appeal.
7. Heard the arguments of the learned counsel for the appellant-accused and also the learned High Court Government Pleader for the respondent-State. Learned Counsel for the appellant during the course of arguments made a submission that looking to the complaint averments and the other material collected during the investigation so also the oral evidence adduced in the case, it clearly goes to show that there was a love affair between the victim and the appellant-accused herein. The learned counsel submitted that looking to the allegations of the prosecution by making a promise to marry the victim girl, he had sexual intercourse with the victim. Hence, the learned counsel submitted if this aspect is to be looked into at the most, the alleged offences will be under Sections 417 and 420 of the Indian Penal Code but not the offence under Section 376 of the Indian Penal Code. He also made a submission that when the victim girl examined in chief second time there was cross examination of PW-1 as she was not available for the cross examination by then.
8. Learned counsel further made a submission that looking to the entire prosecution material even including the evidence of father of the victim girl, there is no material placed to attract the ingredients of Section 376 of Indian Penal Code. Hence, the learned counsel submitted that inspite of such material placed on record and PW-1 victim was not available for cross-examination by the defence, even then the learned Sessions Judge wrongly convicted the appellant-accused even for the offence under Section 376 of Indian Penal Code along with other offences. Hence, the learned counsel submitted that trial court approach to the entire case of the prosecution is not correct and the conviction of the appellant-accused by the concerned trial court is totally illegal and it is not sustainable in law. Learned counsel also made a submission that for the sake of appreciation without admitting even if assumed that there was a repeated sexual intercourse between the victim as well as the petitioner, even then it will not amount to an offence under Section 376 of the Indian Penal Code. In this connection, learned counsel for the appellant relied upon the decision of the Hon’ble Apex Court reported in AIR 2003 SC 1639, so also another judgment of the Hon’ble Supreme Court reported in AIR 2014 SC (SUPP) 261 and another judgment of this court in ILR 2013 KAR. 2537. Hence, taking this court to the said judgment of the Hon’ble Apex Court, learned counsel made a submission that the judgment and order of conviction passed by the court below is illegal and it is to be set-aside. Hence, he submitted to allow the appeal and to set-aside the judgment and order of conviction passed by the court below.
9. Per contra, the learned High Court Government Pleader submitted that looking to the very complaint averments, it is clearly stated that when the parents and other family members of the complainant who were not in the house, the appellant-accused came to the house and inspite of her protest and stating her that he is going to marry her forcibly he committed sexual intercourse on her. The High Court Government Pleader also made a submission that there afterwards, there are repeated sexual intercourse on her under the guise that he is going to marry her. He made a submission that it was not the real intention of the appellant-accused to marry the victim girl, but with a false pretext making the false promise, he wanted to have the intercourse with the victim girl and when it was noticed by the complainant and her father and other family members that the appellant-accused is going to marry another girl, then only they came to know about the real intention of the accused. The learned High Court Government Pleader taking this court to the entire materials, made a submission that in her oral evidence also PW-1 clearly deposed about the forcible sexual intercourse on her by the appellant-accused under the promise that he is going to marry her. So far as the non submission of the PW-1 for the purpose of cross-examination on the third time when her examination-in-chief are recorded it is his submission that there is no fault on the part of the prosecution as she was murdered, she was not subjected for further cross examination. Learned High Court Government Pleader also made a submission that even the medical records in this case and the evidence of the doctor who has been examined before the trial court also supports the case of the prosecution so as to attract the offence punishable under Section 376 of Indian Penal Code. Hence, learned High Court Government Pleader submitted that all these aspects of the matter were properly considered and appreciated by the learned Sessions Judge and he has rightly comes to the conclusion in holding that the appellant-accused is related for the said offences and the prosecution proved the offences beyond all reasonable doubt and rightly convicted the appellant-accused. Learned High Court Government Pleader submitted that no illegality has been committed by the learned Sessions Judge in coming to such conclusion. In respect of his contention the learned High Court Government Pleader also relied upon the decision of the Hon’ble Apex Court reported in (2014) 1 Crimes 346 (SC), 2013 SC 2071.
10. I have perused the grounds urged in the appeal memorandum, the judgment and order of conviction passed by the Court below, oral evidence of P.Ws.1 to 13 and D.W.1, and the documents at Exs.P.1 to P.13 so also M.Os.1 to 9 produced by the prosecution and Exs.D.1 to D.9 marked by the defence.
11. The victim girl is the complainant in this case.
I have perused the averments made in the complaint wherein it is stated that the appellant accused was known to the complainant as well as to her family members. Having acquaintance since many years, the appellant- accused used to come to house of complainant, representing that he is going to marry her. There is also an averment made in the complaint that whenever, he used to come to the house and when there were no other members in the house, making the victim to believe that he is going to marry her, in spite of her protest, forcibly he used to have sexual intercourse with her.
12. The complainant has been examined as P.W.1 during the course of trial. I have perused the deposition of P.W.1 wherein she has stated that she belongs to Nayaka community. The accused also belongs to the same community. He used to come to their house to meet her father and her brother and he was representing that he is going to marry the victim. It is further deposed that on 19.10.2009 at 8.30 a.m., her parents and sisters went to Challakere temple. It was Deepavali festval. She was alone in the house. At that time, the accused came to her house at 9.00 a.m., he spoke to her and told that he is loving her and while talking to her, he sat next to her. Thereafter, he closed the door, latched it from inside. When she asked him why he was latching the door, he came nearby her, touched her body and chest and when she asked why he is doing so and when she told him not to do like that, even then, the accused did not listen to her stating that he is going to marry her and he is loving her. In spite of her say, he did not leave her. Even though, she pushed him, he made her to lie on the ground and removed her clothes. When she told that she will make hue and cry, for that, he told that in case she cries, he will not marry her. After making her lying on the ground, the accused had sexual intercourse with her. There was bleeding and injuries. She was weeping. Accused went away stating to console herself. When her father and the other members of family came back to the house, she brought to their notice about the incident. Though her father told to lodge a complaint immediately, but her mother told not to lodge the complaint because of prestige of the family was involved. Even, her mother told that they can call accused and ask him why he has done so. The further deposition of P.W.1 is that the accused was called to the house and at that time, when enquired, he told that anyhow he is going to marry her and therefore, he committed a mistake and he said that he will marry P.W.1 within six months. Looking to further deposition of P.W.1, she has stated that she has given complaint as per Ex.P.1 and Ex.P.1(a) is her signature. In her evidence, material objects M.Os.1 and 2 were got marked.
P.W.1 was cross examined by the defence. In the cross examination, learned Counsel for the defence has not at all asked anything to P.W.1 about the accused coming to her house when she was alone in the house and on Deepavali festival, he committed forcible sexual intercourse on her.
13. Having carefully perused the cross examination portion of the learned Counsel for the defence, the learned Counsel has not at all asked about such aspects. Therefore, whatever P.W.1 deposed in her cross examination relating to material aspects of accused coming to her house and committing sexual intercourse on her, there is no cross examination on that aspect by the defence. In the deposition at page No.8, after para No.14, it was noticed that learned Counsel for the defence prays time for cross examination. Hence, the matter was adjourned. But subsequently, there was no occasion for the defence to cross examine P.W.1 further, because by that time, she was no more. At this moment, learned Counsel for the appellant as well as learned HCGP brought to the notice of this Court that there was criminal case registered against the accused-appellant herein alleging that he committed the murder of P.W.1 and the matter was pending in S.C No.89/2012 on the file of the Fast Track Court, Chitradurga. Now at this stage, it is contended by learned Counsel for the appellant that the accused has been acquitted in the said Sessions case as against the charge of murder. No doubt, learned Counsel for the appellant herein and learned HCGP submitted to the Court that no appeal is preferred by the State as against the said judgment and order of acquittal as of now.
14. Looking to the materials available on record, the complaint averments as per Ex.P.1 making the allegation of forcible intercourse on the victim, the complaint (Ex.P.1) becomes dying declaration of P.W.1 (complainant) after her death. Therefore, Ex.P.1 becomes the relevant piece of evidence admissible in evidence as per Section 32(1) of Indian Evidence Act. Apart from that, as I have already observed, so far as her oral evidence on oath before the Court is concerned, absolutely there is no cross examination of P.W.1 on the aspect of Deepavali festival day, when she was alone in the house and when other family members went to the temple, the accused came to the house of victim, closed the door of the house from inside, even he removed her clothes, made her to lie on the ground and committed forcible sexual intercourse on her. As I have already observed, this evidence remains as it is without any challenge during course of cross examination.
15. So far as the contention of learned Counsel for the appellant herein (accused) that the victim girl was not subjected to cross examination since she expired is concerned, looking to the very deposition, no fault can be found in the prosecution case, because the defence sought time for further cross examination. Therefore, it is at the instance of the defence, further cross examination of P.W.1 was adjourned. Hence, the complaint averments as per Ex.P.1, becomes dying declaration and the oral evidence of P.W.1 before the Court remain totally unchallenged during the course of trial before the court below.
16. Now coming to the evidence of doctors, there are three doctors, who have been examined In the case.
P.W.5 – Dr. Sainagajyothi is dentist in the Government Hospital at Challakere. She examined the victim girl and issued certificate as per Ex.P.5 regarding her age proof wherein it is stated by the doctor that in view of the examination, she admitted that the victim might be aged 27-28 years old.
17. P.W.6 Dr. Thippeswamy G. is the Medical Officer, Government Hospital, Challakere. He has examined the appellant-accused wherein he has stated that on 16.06.2010 at 12.25 a.m.(midnight), Police of Challakere PS with a history of rape sought for opinion whether the accused person was capable of doing intercourse or not, details of wounds on his body and signs of semen ejaculation on his genital region on 16.06.2010. He further deposed that upon examination of the said person, he found that, the said person was 23 years old, male person, moderately built and nourished. He has opined that the presence of seminal fluid in item No.9 suggestive of sexual activity taken place. He has further stated that during examination of accused, he collected on drayar, pubic hairs and swab over the corona. Above said items were collected from the accused and were sealed and handed over to the police for FSL examination. He has further deposed that he received FSL Report from Regional Forensic Science Laboratory, Davanagere in Report No.B.S:114/10 dated 05.08.2010 of Deputy Director, Regional Forensic Science Laboratory, Davanagere where seminal stains was detected in Item No.6 and 9. P.W.6 has further stated that item No.9 contains one Chaddy. The medical certificate which was issued by him is marked as per Ex.P.6 and his signature was at Ex.P.6(a). The FSL report was marked as per Ex.P.7.
In the cross examination, P.W.6 has deposed that it is not stated in Ex.P.6, who has been ravished by the accused person. In Ex.P.6 certificate, he has not stated about erectile length. He has denied the suggestion that at the behest of police, P.W.6 has given Ex.P.6 certificate. He has also denied the suggestion that he is deposing falsely before the Court and he has further denied that he is deposing falsely that there is seminal stains present on item No.6 and 9.
18. P.W.7 is Dr. M. Sham Parveen. He is also the Medical Officer of Government Hospital, Challakere.
P.W.7 has deposed that, on 15.06.2010 at 5 p.m. one D.O. Susheella D/o Dodda Obaiah was brought before him by WPC of Challakere Police requesting him to conduct clinical examination to confirm whether sexual intercourse had taken place or not. He found that there was tattoo mark present on center of forehead. He stated that on local examination, no external injuries were found, pubic hair intact and present, foul smelling vaginal discharge present. In para-8 of his deposition, P.W.7 has deposed that he was of the opinion that, sexual activity had been taken place as per the report of FSL, but seminal stains of particular person should be confirmed. Accordingly, he issued medical certificate and the same was marked as per Ex.P.8 and his signature was at Ex.P.8(a). He received FSL report and based on FSL report, he has given opinion that, item No.6 and 9 contains seminal stains.
In the cross examination, P.W.7 has admitted as true that, in Ex.P.8 – Medical Certificate, he has not stated as to who has brought the victim and at what time the victim was brought. Only after receipt of FSL report only, he has given opinion, but not before receipt of FSL report. During his examination, he found there is seminal stains but in order to make further more confirmation the seminal stains belong to which person, he sent it to the police. Thereafter, the police did not seek for opinion from him. The FSL officers may classify seminal stains into two groups A and B. P.W.7 has admitted as true that, he has to give his opinion as per Medico Legal Manual under the Medical Jurisprudence. He has not taken the blood sample of victim for comparison with grouping of semen and serological test.
19. I have also perused the oral evidence of P.W.3 – father of the victim girl. P.W.3 in his deposition has deposed that himself and his wife and their children (C.Ws.7, 8 and 6) had been to temple. P.W.1 alone was in the house. They left the house at 9.00 a.m. and when came back at 2.00 p.m., the victim was weeping. When he enquired her as to why she was weeping, the victim told before him that accused came to the house and even though she protested and objected, the accused committed rape on her telling her that he is going to marry her and not to do galata and if she makes galata, he will eliminate her, which was told by the victim before him (P.W.3). P.W.3 also deposed that, at that time, his wife told him not to give complaint, but they can call accused person. They called accused person and asked him as to why he had done so, for that he said that he committed mistake and he will marry her. The accused told that he will marry the victim within six months. When P.W.3 was asked by the Court question where is daughter, the witness answered that the accused took her and he murdered her.
In the cross examination, P.W.3 has deposed that the accused and his daughter (victim) were loving each other since 2½ years. The accused coming to his house, used to talk to his daughter and even whenever they used to meet on the field, he was talking to her on the way. He advised him not to do so. He further deposed that he has seen number of times the accused talking to his daughter. His daughter told before him that she is going to marry accused and she also told that accused told her that he is going to marry her. In para-20, it was suggested to P.W.3 that after showing M.O.3-jacket, it was said that hooks, locks were not at all destroyed, for this, the witness admitted as true. When M.O.2-petti coat was shown to the witness and asked that this was also not destroyed, he said yes. When he was again asked that petty coat was torn at the place where it was going to be tied, he said yes. So also the saree was also shown and when suggested that the saree was also not torn anywhere, the witness said that it was not. In para No.30, when it was suggested to P.W.3 that Fast Track Court, Chitradurga in S.C.No.89/2012 has acquitted the accused on 23.3.2013 from the charge of murder, the witness showed ignorance to the said question.
The other witnesses turned hostile and not supported the case of prosecution.
20. Looking to the materials placed on record, during the course of trial and basing on such material, the court below came to the conclusion that the prosecution was able to prove its case beyond reasonable doubt and accordingly, the Court below convicted the appellant-accused for the said offence.
21. I have also perused the judgment and order of conviction passed by the Court below.
22. Looking to the evidence of P.W.13 (Vasudev R.N.), who is investigating officer, in his examination in chief, he has deposed in detail on the investigation that he has done.
During the course of cross examination, P.W.13 has deposed that when enquiry was conducted against complainant, he had not seized the clothes which she was worn at the time of incident and even he had not asked which were the clothes she wore at that time. P.W.13 has also deposed that even he has not seized the clothes of the accused which were said to have been wore by the accused at the time of alleged incident and even he has also not asked as to which clothes were worn by the accused at that time. In para No.17 of his deposition, P.W.13 has deposed that in Ex.P.8-certificate, the doctor suggested to get the confirmation on the semen stains to which person it belongs to. He has not conducted further investigation to ascertain as to which person the semen stain belongs to and he has also not collected the sample blood from the accused as well as P.W.1. P.W.13 has admitted the suggestion that if DNA examination was done, it could have been ascertained the commission of rape by a particular person. But the witness answered in this case that he did not get it done DNA examination.
23. Therefore, in view of this evidence by the P.W.13-investigating officer, though it may be the contention of defence that even if it is mentioned by the FSL that there are semen stains in item Nos.6 and 9, as suggested by doctor to get confirmation of the same to know to whom it belongs to, no doubt, the evidence of investigating officer goes to show that he has not conducted further investigation, he has not collected blood sample from P.W.1 as well as accused for sending to DNA test so also he has not done investigation for confirmation of semen stains which were found at item Nos.6 and 9, for these lapses on the part of investigating officer, the other materials placed by the prosecution cannot be ignored by the Court. It can be said that, to that extent, there is defective investigation by the prosecution. But whenever there is defective investigation, the benefit of defective investigation cannot be given to the accused for the purpose of acquittal. In this regard, I am referring to the decision of the Hon’ble Supreme Court in case of STATE OF U.P. VS. HARI MOHAL AND OTHERS reported in AIR 2001 SC 142. In para No.9 of the said decision, Their Lordships of the Supreme Court have held as under:
“ Before appreciating the circumstantial evidence in the case, we are at pain to place on record our displeasure regarding the conduct of the investigation in the case. The investigating officer appears to have left no stone unturned to help the accused- respondents. It appears that the valuable evidence, though available, was not collected apparently for ulterior purposes. The conduct of the investigating officer SI D.P. Tiwari (PW7) was even noticed by the trial court. On 30th October, 1978 while recording his statement, the trial court observed that ‘it appears that the IO was negligent and an irresponsible investigating officer’. It was noticed that ‘the witness giving aforesaid statement and it appears that he wants to damage the prosecution case’. It is not disputed that during investigation it had come in evidence that respondent No.1 was possessed of a licensed gun which was stated to have been used by him on 15.3.1977, the alleged day of occurrence, yet no effort was made by the IO to seize the gun or get it examined by an expert to ascertain whether any shot was fired from its barrel. He also failed to have taken into custody the letter written by the deceased for a sufficiently long period though its mention was made by the PW1 in the FIR itself. However, the defective investigation cannot be made a basis for acquitting the accused if despite such defects and failures of the investigation, a case is made out against all the accused or anyone of them. It is unfortunate that no action can be taken against the IO at this stage who, in all probabilities, must have retired by now. ”
24. Therefore, looking to the principles enunciated in the said decision, any fault or mistake committed by the investigating officer for not taking any steps in the matter, the accused will not get benefit for the purpose of acquittal.
25. Apart from that, looking to the materials placed on record, it is consistently stated by the deceased- complainant (P.W.1) in the complaint as well as in her oral evidence that after committing rape, even thereafter also, he used to come to the house by making promise that he will marry her, number of times, he had sexual intercourse against the will of P.W.1. In this connection, I have perused the decisions of defence (accused) which are referred above. Looking to the decision in case of UDAY VS. STATE OF KARNATAKA reported in AIR 2003 SC 1639, in Head Note, it is to the effect that rape - defence of prosecutrix that she gave consent under ‘misconception of fact’ – tenability - accused expressed love and promised to marry prosecutrix on later date - prosecutrix aware of fact that they belonged to different caste and proposal of their marriage will be opposed by the their members - as yet, prosecutrix started co-habiting with accused consciously and becomes pregnant – consent given by prosecutrix to sexual intercourse cannot be said to be given under misconception of fact, i.e., promise to marry, but because she also desired for it - False promise is not a fact - Accused acquitted.
26. Learned HCGP also relied upon the decision in case of STATE OF U.P. Vs. NAUSHAD reported in AIR 2014(1) CRIMES 346. In para Nos.10-14 of the said decision, it reads as under:
“ 10. We will answer point nos. 1 and 2 together as they are related to each other. Section 376 of IPC prescribes the punishment for the offence of rape. Section 375 of the IPC defines the offence of rape, and enumerates six descriptions of the offence. The description ‘secondly’ speaks of rape ‘without her consent’. Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix ‘against her consent’. The prosecutrix in this case has deposed on record that the accused promised marriage with her and had sexual intercourse with her on this pretext and when she got pregnant, his family refused to marry him with her on the ground that she is of ‘bad character’. How is ‘consent’ defined? Section 90 of the IPC defines consent known to be given under ‘fear or misconception’ which reads as under:-
“90. Consent known to be given under fear or misconception – A consent is not such consent as it 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; xxxx”
Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 of the IPC. Thus, the alleged consent said to have obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her. In the case of Yedla Srinivas Rao v. State of A.P.[2], with reference to similar facts, this Court in para 10 held as under:-
‘10. It appears that the intention of the accused as per the testimony of PW1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent.”
Further, in para 17 of the said judgment, this Court held that:-
‘ In the present case in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law. This is more evident from the testimony of PW1 as well as PW6 who was functioning as Panchayat where the accused admitted that he had committed sexual intercourse and promised to marry her but he absconded despite the promise made before the Panchayat. That shows that the accused had no intention to marry her right from the beginning and committed sexual intercourse totally under the misconception of fact by prosecutor that he would marry her.’ Thus, this Court held that the accused in that case was guilty of the offence of rape as he had obtained the consent of the prosecutrix fraudulently, under a misconception of fact.
11. The High Court has gravely erred in fact and in law by reversing the conviction of the accused for the offence of rape and convicting him under Section 376 of the IPC. It is apparent from the evidence on record that the accused had obtained the consent of the prosecutrix for sexual intercourse under a misconception of fact i.e. that he would marry her and thus made her pregnant. He is thus guilty of rape as defined under Section 375 of the IPC and is liable to be punished for the offence under Section 376 of the IPC. The trial court was absolutely correct in appreciating the evidence on record and convicting and sentencing the accused for the offence of rape by holding that the accused had obtained the consent of the prosecutrix under a misconception of fact and this act of his amounts to an offence as the alleged consent is on the basis of misconception, and the accused raped the prosecutrix. He brazenly raped her for two years or more giving her the false assurance that he would marry her, and as a consequence she became pregnant. For the reasons stated supra, we have to uphold the judgment and order of the trial court in convicting and sentencing the accused for the offence of rape, by reversing the judgment and order of the High Court. We find the accused- respondent guilty of the offence of rape as defined under Section 375 of the IPC.
12. The answer to point no.3 is pertaining to the question of sentence awarded by the trial court to the accused. The trial court has justified in awarding of maximum sentence of life imprisonment to the accused under Section 376 of the IPC on the ground that the facts of this case are of a very grave nature. The accused being related to the prosecution used to often visit her house and took undue advantage of this relationship and kept the prosecutrix under the misconception that he would marry her and committed rape on her for more than two years thereby making her pregnant. In such circumstances, the trial court held that it would be justifiable to award the maximum sentence to the accused. We, therefore, hold that the trial court was correct in awarding the maximum sentence of life imprisonment to the accused as he has committed a breach of the trust that the prosecutrix had in him, especially due to the fact that they were related to each other.
He thus invaded her person, by indulging in sexual intercourse with her, in order to appease his lust, all the time knowing that he would not marry her. He committed an act of brazen fraud leading her to believe that he would marry her.
13. A woman’s body is not a man’s plaything and he cannot take advantage of it in order to satisfy his lust and desires by fooling a woman into consenting to sexual intercourse simply because he wants to indulge in it. The accused in this case has committed the vile act of rape and deserves to be suitably punished for it.
14. In view of the foregoing reasons, this appeal is allowed. The judgment and order of the High Court is set aside and the conviction and sentencing of the accused by the trial court under Section 376 of the IPC is upheld. The accused-respondent is found guilty of the offence of rape as defined under Section 375 of the IPC and is sentenced to imprisonment for life under Section 376 of the IPC. The accused- respondent is directed to surrender before the trial court within four weeks ”
27. Therefore, looking to the factual matrix involved in this case so also the factual story in the reported decision in AIR 2003 SC 1639 relied upon by learned Counsel for the appellant-accused, they are not one and the same. The said decision relied upon by learned Counsel for the appellant is not at all made applicable to the facts of the present case. Therefore, considering even the legal aspects involved in the case, I am of the opinion that the learned FTC has rightly appreciated the matter both oral and documentary and rightly came to the conclusion in holding that prosecution has proved its case beyond reasonable doubt and rightly based its conviction as against accused for the offences charged against him. Looking to the entire materials placed on record, I am of the opinion that no illegality has been committed by the Court below in coming to such conclusion nor perverse or capricious view has been taken in the matter. There are no valid and justifiable grounds for this Court to interfere into the order of conviction passed by the Court below in view of my above discussion.
28. Even looking to the aspect of sentence, in view of the seriousness of the offence and the mode and manner in which the offence is said to have been committed by the appellant-accused against the victim, the punishment imposed for the offence punishable under Section 376 of IPC for 12 years imprisonment with fine is reasonable and in accordance with law.
29. Therefore, the appeal is dismissed confirming the judgment and order of conviction passed by the Court below.
Sd/- JUDGE Chs/Cs/-