JUDGMENT

The appellant herein was convicted and sentenced by the Mahila Court, Salem, the details of which are as follows :

2.The prosecution case opens with Ext.P.1, complaint dated 18.05.2012.

P.W.1, the defacto complainant narrates that she was a Nun, that she was working in a convent at Kalakkampadi, and that the appellant was working in Annai Therasa Primary School, Kalakkampadi, that he would often visit the place where P.W.1 was working, that on one of the days,he had forced himself on her, owing to which, she had conceived, but had later refused to marry her and was planning to marry another women. Receiving the same, Ext.P.8, FIR was registered by P.W.7, the Sub Inspector of Police and the matter was taken up for investigation by P.W.10. He proceeded and investigated the scene of occurrence and prepared Ext.P.7, Observation Mahazar in the presence of witnesses, and also prepared Ext.P.9, Rough Sketch. The Investigating Officer then forwarded the victim for medical examination. The Investigating Officer would then interrogate various witnesses associated with the Home where P.W.1 stayed. In the course of the investigation, P.W.1 delivered a boy and the Investigating Officer caused a DNA test to ascertain if the accused had fathered the baby. The report (Ext.P.15) was made available by P.W.9, the forensic expert. In the report, the expert has found that the child born to P.W.1 was fathered by the accused. The Investigating Officer, in the course of the investigation, had also seized Ext.P.2, a notice which the accused has sent to P.W.1 though his counsel one day prior to Ext.P.1, complaint, to be precise, on 17.05.2012 and also Ext.P.3 reply dated 12.06.2012, which P.W.1 has issued to Ext.P.2 notice. In the meantime, the Investigator was changed. It was continued thereafter, by P.W.11 and a final report was laid by P.W.14.

3.Pursuant to the final report, the matter was committed to Sessions, where the learned Mahila Court, Salem framed charges against the accused for the offences as stated in the opening paragraph. The trial Court found the appellant guilty of all the offences and sentenced him as above. This is now in challenge.

4.The learned counsel for the appellant submitted that;

● Ext.P.1, complaint is bereft of any details and even going by the defacto complainant's version, the complaint was given when she was three months pregnant. This implies, there was a considerable deliberation before the complaint was preferred and it also indicates it is a consensual sex and hence, the sexual act alleged will not constitute rape within the definition of Section 375 Cr.P.C.

● Relying on the judgement reported in Pramod Suryabhan Pawar Vs.

State of Maharashtra and another [2019 (9) SCC 608], the learned counsel argued that the sexual act between grown up adults of discernible age, consensually made, can never amount to rape and even if any promise of marriage is made, the women always had a choice to refuse. The manner in which P.W.1 has presented the case, indicates it is wholly a consensual sexual act between the appellant and P.W.1 and hence, the trial Court was in error in holding that an offence under Section 376 of Cr.P.C was made out.

● Secondly, the trial Court has not adequately appreciated the evidence of P.W.4, the Mother Superior of the Convent where P.W.1 worked, and P.W.5, another Nun who was staying with her. P.W.5 has made a categorical statement in her testimony that P.W.1, the victim would open the door of the hall during nights for the appellant to enter. This woul