VENDA Vs. STATE

JUDGEMENT

(1.) THIS revision is directed against the acquittal of the accused, who was charged for the offence under sections 417 and 376 IPC.

(2.) THE brief facts of the case are as follows : - P. W. 1-Venda and the accused-Murugan are residing in the same village. THE house of the accused is opposite to the house of P. W. 1. THE lands of P. W. 1's father are the adjacent lands of the accused. Some time prior to 7. 5. 2002, the accused promised to marry P. W. 1 and took her out to the pumpset and had sexual intercourse there. THEreafter their illicit relationship continued, because of which P. W. 1 came to pregnant. When P. W. 1 wanted the accused to marry her, informing about the pregnancy, the accused asked her to terminate the pregnancy. For that purpose he gave her pine apple and papaya and also Nattu Medicine, as a result of which there was excess bleeding and came to the knowledge of P. W. 1's mother-P. W. 2. P. W. 2 did not take her to the hospital for treatment. THEreafter they asked the accused to marry P. W. 1, for which the accused refused and threatened to kill the family of P. W. 1. THErefore, 5 days thereafter, they lodged a complaint with the Panchayat of that village. 4 days thereafter, there was panchayat, in which the accused agreed to marry P. W. 1. THEreafter P. W. 1 lodged a complaint- Ex. P1 dated 3. 5. 2002 to the police station. On 7. 5. 2002, P. W. 8-the Sub Inspector of Police after receipt of the complaint dated 3. 5. 2002, registered a case as C. S. R. No. 90 of 2002 and as per the order of Deputy Superintendent of Police, he registered a case in Crime no. 150 of 2002 for the offence under Sections 417, 376, 294, 506 (1) IPC and he prepared printed FIR-Ex. P7 dated 7. 5. 2002. He took up the case for investigation and went to Gangapuram, where the occurrence had taken place. He examined P. Ws. 1 ,2,3 , Kannagounder and Loganathan and recorded their statements. On 8. 5. 2002 he arrested the accused in his house and sent him for judicial custody. He also made a requisition to Judicial Magistrate, senchi for medical examination regarding the potency of the accused and also gave requisition for medical examination to the victim girl. Ex. P2 is the accident register for the examination of P. W. 1 by P. W. 4-Dr. Santhi and P. W. 4 found the following injuries:- "breasts well developed. No external injuries seen over the breast ,nec k and abdomen. " According to Ex. P2, there was no injury on P. W. 1 and she used to have sexual intercourse. According to Ex. P6, the doctor P. W. 10 gave his opinion that there is no cause to say that the individual is not potent and no evidence of STD. After completion of investigation, P. W. 12 filed final report against the accused for the offence under Sections 417 and 376 IPC.

(3.) 5. 2002, but in the complaint it is stated some time in'chithirai', which does not tally with the English calendar month. There is no certainty as to when the accused promised to marry P. W. 1 and when both of them had the first sexual intercourse. It is not the only occasion in which the accused said to have been seduced P. W. 1 , they were continuously having intercourse for several months. As per the evidence of P. W. 1, when she informed the pregnancy to the accused and requested to marry her, he refused to marry her. But there is no proof for the pregnancy of P. W. 1 and for the termination of her pregnancy. If there is excess bleeding as stated by P. W. 1, P. W. 2-mother of the victim-P. W. 1 would have taken her to the hospital for treatment, but she has deposed in her chief examination that she left her in her house. Similarly the evidence of P. W. 3 is to be analysed carefully, because there was motive that P. W. 3 and the father of the accused contested against P. W. 3 in the panchayat election. Learned counsel for the accused has produced certified copy of the judgment in S. T. C. No. 3320 of 2001, in which P. W. 3 and his wife have paid fine before the Judicial Magistrate, Senchi wherein they were convicted for the offence under Sections 294 and 323 (2 counts)IPC and for the offence under section 323 (2 counts)IPC and they were punished to pay a fine of Rs. 400/- on each count in default to undergo one month simple imprisonment and for the offence under Section 294 IPC they were punished to pay a fine of Rs. 200/-in default to undergo two weeks simple imprisonment. The enormous delay in lodging the complaint, particularly even after the alleged panchayat in the village is doubtful. 7. Learned counsel appearing for the accused would rely on the judgment reported in DEELIP SINGH v. STATE OF BIHAR (2005 Supreme Court Cases (Cri.)253 and contend that the facts of the above cited case are similar to the facts of this case also. In the said decision, the Supreme Court has held as follows:- "a. Penal Code, 1860 - Ss. 375 secondly and 90 -Rape - "without her consent" - Meaning - Consent as explained under S. 90 relevant - "consent" compared with "will" and "submission" - Consent given by a woman believing the mans promise to marry her would fall within the 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 -Nature of consent - Questions relevant for determining - Burden on prosecution to prove absence of consent from attendant circumstances - Evidence should be scanned carefully - Past, contemporaneous and subsequent conduct are relevant - On facts, held, prosecutrix had taken a conscious decision to participate in the sexual act only on being impressed by the accuseds promise to marry her - But accuseds promise was not false from its inception with the intention to seduce her to sexual act - Hence cl. secondly of S. 375 not established - Instead, accused committed breach of promise for which he would be liable for damages under civil law - Words and phrases - "consent" The question is: What is the meaning and content of the expression "without her consent" in Section 375 secondly, IPC? whether the consent given by a woman believing the man's promise to marry her is a consent which excludes the offence of rape? Though will and consent often interlace and an act done against the will of a person can be said to be an act done without consent, the indian Penal Code categorises these two expressions under separate heads in order to be as comprehensive as possible. Further, it is not easy to find a dividing line between submission and consent except in the situation contemplated by clause fifthly of Section 375 IPC. Yet, the evidence has to be carefully scanned. The ultimate conclusion depends on the facts of each case. The Indian Penal Code does not define "consent" in positive terms, but what cannot be regarded as "consent" under the code is explained by Section 90. Consent given firstly under fear of injury and secondly under a misconception of fact is not "consent" at all. That is what is enjoined by the first part of Section 90. These two grounds specified in Section 90 are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i. e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of section 90 which is couched in negative terminology. Section 90 cannot, however, be construed as an exhaustive definition of consent for the purposes of the Indian Penal Code. The normal connotation and concept of "consent" is not intended to be excluded. Various decisions of the high Court and of this Court have not merely gone by the language of Section 90, but travelled a wider field, guided by the etymology of the word "consent".