2007 Supreme(Mad) 2471

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE R. REGUPATHI
Panchapathi
Versus
State rep. by its Inspector of Police Kancheepuram District
Criminal Appeal No.868 of 2003
Decided On : 08-08-2007

Headnote:INDIAN PENAL CODE - SECTIONS 366 AND 376 - Appellant committing intercourse with girl of 16 with consent to marriage but without consent for intercourse - Conviction by Magistrate - - Ocular Evidence of PW-1 to 3 corroborated with PW-10 the Medical Officer, who after Radiological examination assessed age between 16-17, can be accepted (Para 8) - Certificate issued by the School Authorities can be taken as a conclusive proof.

       HELD, When the consent of the girl may be taken into consideration though it has been alleged that on compulsion, the appellant had sex with her, subsequent conduct in co-operating with him for next one week would go to show - victim was a willing partner for such act - When there is consent on the part of Victim who is a major, it is impossible to categorise it as an offence of rape - PW3 willingly travelled along with the appellant to Hyderabad - The act committed by the Appellant cannot be categorised as kidnapping, also, therefore both the offences are not made out - Prosecutrix having accompanied appellant only believing promise made by the appellant to marry her, which has been betrayed by appellant for which, he is prima facie accountable for damage under civil law - Both victim and appellant got married separately. - Mother of the victim was summoned to the Court and she has willing to receive damage of Rs.50,000/- on behalf of victim - The receipt of payment of Rs.50,000/- by mother of the victim recorded. - Conviction and sentence set aside.

       FACT OF THE CASE : The Court perused the materials available on record and heard the submissions made. Before even assessing the materials available to substantiate the offence alleged, it is absolutely necessary to ascertain the age of P. W.3. It is the admitted evidence of P.Ws. 1 to 3 that she is aged about 16 years at the time of occurrence, viz., 23-11-2000. This evidence of P.Ws. 1 to 3 has been corroborated by P.W. 10, the medical officer, who after radiological examination, stated emphatically that the age of P.W.3 is between 16 and 17. Such positive evidence of P.Ws.1 to 3 and medical evidence cannot be brushed aside easily. To substitute such evidence that P.W.3 is below 16, some more stronger piece of material must be made available by the prosecution. Ex P.2 is the certificate issued by the School wherein it has been stated that the date of birth of P.W. 3 is 17-05-1986. If this date of birth is supported by the birth certificate, certainly the certificate issued by the School Authorities can be taken as a conclusive proof. On the contrary it is the evidence of P.W.8 that it is not supported by any materials including birth certificate. However, positively stated that not only for P.W.3, it is the practice for the school that such date of births are entered approximately. This evidence of P.W.8 has been confirmed by the mother of P.W. 3, viz., P.W. 2, who, in her evidence, has stated that such date of birth has been given by approximate. Therefore, I am of the considered view that the ocular testimony of P.Ws.1 to 3 corroborated by the medical officer could occupy a preferential position than school certificate issued on imaginary basis. When the age of the victim has been concluded as 16, then as per Section 376 IPC., the consent of the girl may be taken into consideration to substantiate an offence of rape.

       As per the evidence of P.W. 3, she was in love with the appellant and known each other for two years prior to the date of occurrence. Moreover, both of them during this period have decided to marry. However, it is only the family members of the appellant opposed for such suggestion. It is only on account of that resistance of the family members, it appears that P.W.3 decided to go along with the appellant. On perusal of her evidence, her voluntary act of joining with him to go to Hyderabad could be visible. After reaching Hyderabad, a discussion about the marriage has been done with the appellant and his friend. They have promised that such a marriage will be performed. Under such circumstances, though it has been alleged that on compulsion, the appellant has sex with her, her subsequent conduct in co-operating with him for the next one week would go to show that even at the first incident, P.W.3 was a willing partner for such act. Under such circumstances, when there is consent on the part of P.W.3, who is major, it is impossible to come to the conclusion that the act of the appellant can be categorised as an offence of rape. When there are materials to substantiate that P.W. 3 willingly travelled along with the appellant to Hyderabad, the act committed by the appellant, under such circumstances, cannot be categorised as kidnapping. Therefore, I am of the considered view that both the offences are not made out.

       On perusal of the facts of the present case, though the case of the appellant is that he had never made any promise to marry, it is the evidence of the prosecutrix that she accompanied the appellant only believing the promise made by the appellant to marry her. Such promise has been betrayed by the appellant, for which, he is prima facie accountable for damages under Civil Law. When this aspect was under discussion, the learned counsel for the appellant submits that the victim girl got married during 2003 and settled with two children. The appellant also got married. In the above circumstances, the counsel for the appellant, on instructions, made an offer of Rs. 50,000/-. Since the victim is already settled in life, P.W.2, the mother of the victim, was summoned before this court today and she has willingly received the said amount of Rs. 50,000/- on behalf of the victim. The receipt of payment of Rs. 50,000/- by the mother of the victim is recorded.

       

       In the result, the conviction and sentence passed by the Trial Court as against the appellant is set aside and the appeal is allowed.