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IN THE SUPREME COURT OF INDIA
P. Sathasivam and Jagdish Singh Khehar, JJ.
Karthi @ Karthick - Appellant
Versus
State Rep. by Inspector of Police, Tamil Nadu - Respondent
CRIMINAL APPEAL NO.601 OF 2008
Decided on: 1-7-2013
(b) Evidence Act-Circumstantial evidence- Panchayat Proceedings- Proceedings during the holding of the panchayat would constitute strong circumstantial evidence for drawing an inference in the facts of the case. (Para 11.ii)
(c)Indian Penal Code, 1860-Sections 376 and 417-Rape and having subsequent acts of sexual intercourse by cheating-Sexual intercourse by the accused-appellant with the prosecutrix was not consensual- Obtaining consent by exercising deceit, cannot be legitimate defence to exculpate an accused. (Para 14)
(d)Indian Penal Code, 1860-Sections 376 - Consent to intercourse on promise to marry-There is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. (Para 13)
(e)Indian Penal Code, 1860-Sections 376 - Delay to report-Six months passed after the occurrence of rape- Sexual intercourse continued on the promise to marry- It is only after the accused-appellant declined to marry the prosecutrix, that a different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months- No delay whatsoever at the hands of the prosecutrix-In the above view of the matter, in the peculiar facts of this case, it is not possible for us to hold, that any doubt can be said to have been created in the version of the prosecution, merely on account of delay in the registration of the first information report. (Para 17)
Facts of the case
1. The initiation of the series of occurrences, leading to the filing of the complaint, had commenced six months prior thereto. The accused-appellant used to generally tease her. He also used to ask her to marry him. On the first date of occurrence of sexual intercourse, the prosecutrix was alone in the house. The accused finding her alone, entered her house. The accused requested the prosecutrix to allow him to have sexual intercourse with her. The prosecutrix allegedly refused to consent. She told him that sexual intercourse could only be had after marriage. Yet, he forced himself on her, after he had gagged her mouth with his right hand and committed to the prosecutrix that he would marry her. Consequent upon her refusal to have sexual intercourse with him, the accused allegedly gagged her mouth to prevent her from raising an alarm. He then, had sexual intercourse with her. He told her not to reveal the incident to anyone, on the assurance, that he would marry her.
2. On 5.10.2003, after about six months, the prosecutrix had gone to a temple, in the company of the accused and she again requested him to marry her. He, however, refused to marry her. Consequent upon the refusal, the prosecutrix divulged the entire factual position to her brother and other family members. Her brother and her father decided to get the matter sorted out through the village elders. They narrated the relationship between the prosecutrix and the accused to a number of village elders.
3. The village elders then summoned the accused for settling the dispute and a panchayat was held. The panchayat made efforts to persuade the accused to marry the prosecutrix ,the accused however, refused to marry her. On the refusal of the accused to marry the prosecutrix, the village elders advised her to make a complaint to the police.
4. The prosecutrix thereupon, lodged a report on 10.10.2003 with the Police.
Findings of the Court
The accused-appellant committed deceit with the prosecutrix by promising to marry her. On the strength of the said deception, in the first instance persuaded her not to disclose the occurrence to anyone, and thereafter, repeatedly had sexual intercourse with her. Therefore, in the facts and circumstances of this case, it is not possible to accept the contention that sexual intercourse by the accused with the prosecutrix Poomari was consensual. Obtaining consent by exercising deceit, cannot be legitimate defence to exculpate an accused.
Result : Appeal was accordingly dismissed.
JUDGMENT
Jagdish Singh Khehar, J.
1. The appellant, Karthi @ Karthick was convicted for the offences under Sections 376 and 417 of the Indian penal Code, 1860 by the Assistant Sessions Judge, Virudhunagar in Sessions Case No.119 of 2004 by an order dated 30.11.2004. The aforesaid conviction was affirmed by the Additional District and Sessions Judge (Fast Track Court), Virudhunagar, in Criminal Appeal No.2 of 2005, by an order dated 1.6.2005. The appellant’s Revision Petition (Criminal Revision Case No.439 of 2005) was dismissed by the Madurai Bench of the Madras High Court on 18.12.2006. The appellant has approached this Court to assail the orders passed by the Trial Court, the appellate Court and the Revisional Court.
2. The accusation in the instant controversy was levelled, first of all, by the prosecutrix Poomari (PW1). At the time of occurrence, she was aged between 18 to 20 years. She was then a resident of Achampatti. The prosecutrix Poomari (PW1) had pointed an accusing finger, at the accused-appellant Karthick. The accused appellant was aged above 20 years at the time of occurrence. He was also a resident of Achampatti. The accused-appellant Karthick, besides being a neighbour of the prosecutrix Poomari (the prosecutrix Poomari (PW1)) also belonged to the same caste as the prosecutrix.
3. From the factual position emerging from the record of this case, it appears that the prosecutrix Poomari (PW1) had lost her mother in early childhood. At the relevant time, therefore, she was living with the family of her brother Manikannan (PW2) and sister-in-law Pitchumani (PW3), (wife of Manikannan, PW2). The father of the prosecutrix Poomari (PW1), i.e., Muthukaruppa Thevar (PW4) was then, also residing in the same house.
4. The accusation against Karthick, was made on 10.10.2003. The initiation of the series of occurrences, leading to the filing of the complaint, had allegedly commenced six months prior thereto. According to the statement of the prosecutrix Poomari (PW1), the accused-appellant Karthick used to generally tease her. He also used to ask her to marry him. On the first date of occurrence, the prosecutrix Poomari (PW1) was alone in the house. The other family members had gone to the temple. The accused-appellant Karthick, finding her alone, entered her house. At that juncture, she was allegedly asleep. The accused-appellant Karthick had allegedly requested the prosecutrix Poomari (PW1) to allow him to have sexual intercourse with her. The prosecutrix allegedly refused to consent. She claims to have told the appellant, that sexual intercourse could only be had after marriage. Yet, he forced himself on her, after he had gagged her mouth with his right hand. The accused-appellant Karthick, then allegedly committed to the prosecutrix Poomari (PW1), that he would marry her. Consequent upon her refusal to have sexual intercourse with him, the accused-appellant Karthick allegedly gagged her mouth to prevent her from raising an alarm. He then, had sexual intercourse with her. He told her not to reveal the incident to anyone, on the assurance, that he would marry her. He had allegedly promised her marriage, by placing his hand on her head. Believing the promise made by the accused-appellant Karthick, the prosecutrix Poomari (PW1) did not reveal the first occurrence, to anyone.
5. After the first occurrence, the acknowledged factual position is, that the accused-appellant Karthick and the prosecutrix Poomari (PW1) were repeatedly engaged in consensual sex at different places. During the entire interregnum, according to the prosecutrix, the accused-appellant Karthick swore, that he would marry her.
6. On 5.10.2003, the prosecutrix Poomari had gone to Murugan temple, Kariapatti in the company of the accused-appellant Karthick. At the temple, she again requested Karthick to marry her. He, however, refused to marry her. Consequent upon the refusal, the prosecutrix Poomari (PW1) allegedly divulge the entire factual position to her brothe
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