IMPORTANT POINT
Consent obtained under threat or misconception is not valid; the prosecution must prove the absence of consent beyond reasonable doubt in cases of alleged rape.

JUDGMENT :

A.D. Jagadish Chandira, J.

[PRAYER: Appeal filed under Section 374(2) of the Code of Criminal Procedure against the Judgment dated 15.11.2019, in S.C.No.324 of 2016, on the file of the Fast Track Mahila Court, Thoothukudi.]

This criminal appeal is filed against the judgment and order dated 15.11.2019, in S.C.No.324 of 2016, on the file of the Fast Track Mahila Court, Thoothukudi.

2. The Trial Court framed two charges against the appellant, as detailed below :

3. By judgment and order dated 15.11.2019, the Trial Court convicted the appellant and sentenced him, as detailed below:-

The period of sentence already undergone was directed to be set off under Section 428 of the Code of Criminal Procedure.

4. The prosecution case is as under:

4.1. The prosecutrix / P.W.1, a deaf and dumb girl aged about 26 years and the accused are close relatives known to each other and residents of Chottainthoppu, Thoothukudi District. Karuppasamy / de facto complainant (P.W.2) is the father of P.W1. In such circumstances, during the year 2015, two months prior to Deepavali Festival, on a day at 11.30 a.m., the victim girl (P.W.1), as usual, had gone to fetch water from a common well situated near the house of the accused. At that time, the accused dragged the victim girl (P.W.1) by holding her hand and took her into his house and after disrobing her groped her breasts, kissed her and thereafter had committed rape on her. Even thereafter, 2-3 times, the accused had committed rape on her and had on the threat of harming her and her family members, asked her not to disclose the same to anyone.

4.2. Later, on 11.11.2015, the victim girl (P.W.1) had vomited and fainted and she was taken to a hospital and she was found to be pregnant. When her father Karuppasamy (P.W.2) had beaten her and enquired, she had, by gestures informed him that the accused, who is a close relative, had disrobed her and raped her and that he is responsible for the pregnancy. P.W.2, thereafter, had preferred a complaint (Ex.P2) before Jeyanthi (P.W.12), Sub Inspector of Police.

4.3. Based on the complaint, PW12 had registered a First Information Report (Ex.P13) in Crime No.53 of 2015, under Sections 376(2)(l) and 506(i) I.P.C., and forwarded the same to the Judicial Magistrate Court No.I, Thoothukudi as well as to her higher officials and thereafter, she had handed over the case files to Prema (P.W.13), Inspector of Police(In-charge), for investigation.

4.4. Prema (P.W.13) had examined Karuppasamy (P.W.2) and Kalyani (P.W.3), the parents of the victim girl (P.W.1) and gone to the place of occurrence on 14.11.2015 at 17.00 hours and prepared Observation Mahazar (Ex.P6) and Rough Sketch (Ex.P14) in the presence of the witnesses Jeyalani (P.W.5) and Thangamariappan (not examined) and since, the victim girl (P.W.1) was a deaf and dumb girl, she had enquired her through Suba (P.W.4), a Specially Trained Teacher and recorded the statement of the victim girl (P.W.1). On 14.11.2015, after obtaining orders from the Court under EX P11, she had sent the victim for Medical Examination through Tmt.Ajitha (P.W.10) through Memo Ex.P10 to Dr. Rajakumari (P.W.9.) PW9, after examining the victim, collected the vaginal smear of the victim and handed over the same to PW10 and issued Accident Register Ex.P9. On the same day, P.W.13 had arrested the accused at 18.00 hours and thereupon the accused had given a confession statement (Ex.P15) in the presence of the witnesses, namely, Karthik (P.W.6) an