VINCENT Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This revision is against the order of conviction passed by the learned I Additional Sessions Judge, Tirunelveli in C.A. No. 180 of 1991 for the offence under Section 376, Indian Penal Code, confirming the conviction imposed by the Principal Assistant Sessions Judge, Tirunelveli in S.C. No. 155 of 1989 to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 500/-. The accused and the victim girl belong to the same village living at a short distance. The evidence of PW 1 is that the revision petitioner expressed that he liked her very much, that he would marry only her and taking her to his garden land, he had sexual intercourse with her. It is also her evidence that on the promise of marrying her, the revision petitioner was having sexual intercourse with her once in 3 days for about six months and as she became pregnant, three days before 14.12.88, she told him that she had conceived and has become pregnant and that he should arrange for marriage, but he refused to marry her. The further evidence of PW 1 is that immediately she told this to her mother PW 2, who informed to the local villagers and thereafter took her to This aiyanvilai Police Station where a complaint was lodged on the basis of which the investigation was started. PW 3, the Doctor, who examined PW 1 on 15.12.88, has stated that on her examination of the abdomen, she found PW 1 carrying 24 weeks child.

(2.) Both Courts below, accepting the evidence of PW 1, have found that this revision petitioner is the father of the child in the womb of PW 1, though the defence version is that she had illicit intimacy with someone while working in the rice mill, where she used to attend the night work. Though, in her evidence, PW 1 has stated that the sexual intercourse was against her will on the first day, both the Courts have found that the sexual intercourse was only with the consent of PW 1. But according to the Trial Court and the Lower Appellate Court, this consent was not on free will and it will not amount to consent under Section 90 Indian Penal Code because, she was lured by the revision petitioner on a false promise of marriage and the misconception of the girl that she would be the wife of the revision petitioner was because of the offer made by the revision petitioner, and that it will not amount to consent at free will.

(3.) As both Courts have found that the sexual intercourse was with the consent of PW 1, now the only question is whether this consent falls within the parameter of Section 90 Indian Penal Code vitiated by misconception.