B A I L S L I P The Appellant/Accused viz., Senthilkumar, age 25 years, S/o Sundaram was directed to be released on bail as per the order of the Court dated 25.4.2007 in Crl.MP.No.1 of 2007 in Crl.RC.No.1 of 2007. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:30.6.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.1 of 2007 Senthilkumar ... Petitioner/Accused vs. The State by the Inspector of Police, All Women Police Station, Namakkal District ... Respondent/Complainant Petition filed under Section 397 r/w 401 of Cr.P.C. against the judgement dated 27.9.2006, passed by the Additional District Sessions Court/Fast Track Court, Namakkal, in C.A.No.27 of 2006 confirming the judgement dated 4.5.2006 passed by the Chief Judicial Magistrate/Assistant Sessions Judge, Namakkal, in S.C.No.42 of 2005. For Petitioner : Mr.N.Manokaran For Respondent : Mr.Hasan Md.Jinnah,A.P.P. O R D E R Animadverting upon the judgement dated 27.9.2006, passed by the Additional District Sessions Court/Fast Track Court, Namakkal, in C.A.No.27 of 2006 confirming the judgement dated 4.5.2006 passed by the Chief Judicial Magistrate/Assistant Sessions Judge, Namakkal, in S.C.No.42 of 2005, this criminal revision case is focussed. 2. The epitome and the long and short of the germane facts, which are absolutely necessary and germane for the disposal of this criminal revision case would run thus: (a) The police laid the police report in terms of Section 173 of Cr.P.C. as against the accused for the offence under Sections 450, 376(1), 417 and 506(2) IPC. Since the accused pleaded not guilty, the trial was conducted. https://hcservices.ecourts.gov.in/hcservices/ (b) During trial, on the prosecution side, the victim girl was examined as P.W.1 along with 12 others as P.Ws.2 to 13 and Exs.P1 to P9 were marked. On the accused side, R.W.1 and R.W.2 were examined and no documentary evidence was adduced. (c) Ultimately, the trial Court recorded the conviction and imposed the following sentences. Case No. Offence Punishment imposed C.C.No.42 of 2005 450 IPC Three years R.I. 376(1) IPC Seven years R.I. 417 IPC One year R.I. (d) Aggrieved by and dissatisfied with the convictions recorded and sentences imposed by the trial Court, the accused preferred appeal C.A.No.27 of 2006 before the Sessions Court, which Court modified the convictions and sentences as under:- Case No. Offence Punishment imposed C.A.No.27 of 2006 376(1) IPC Seven years R.I. 417 IPC One year R.I. 3. Challenging and impugning the judgements of both the Courts below, this revision is focussed on various grounds, the pith and marrow of them would run thus:- Both the Courts below committed serious error in adjudging as though the offence of rape was made out on the ground that the consent of P.W.1 was 'no consent'. The lower Court failed to apply the law relating to burden of proof in deciding the case. In Ex.P3-the Medical Report, initially it is found written as 'Hymen intact' and subsequently, the word 'not' before the word 'intact' was inserted and that fact has not been considered by both the Courts below for giving the benefit of doubt in favour of the accused. Barely based on the evidence of P.Ws.1 and 5, both the Courts below recorded the convictions, warranting interference by this Court. The evidence of D.W.1 and 2 were not considered by both the Courts below. Accordingly, he prayed for setting aside the order of lower Courts and for acquitting the accused. 4. Heard both sides. 5. The point for consideration is as to whether both the Courts below were perverse in convicting the accused for the offences under Section 376 and 417 IPC based on non-application of mind in appreciating the evidence placed before them. https://hcservices.ecourts.gov.in/hcservices/ 6. The learned counsel for the revision petitioner/accused, drawing the attention of this Court to various parts of the evidence, would reiterate the grounds of revision and further develop and advance his argument to the effect that without au fait with law and au courant with facts and that too, without taking into consideration the latest precedents of the Honourable Apex Court, both the Courts below held as though the consent given by P.W.1 was 'no consent'; it is the categorical case of the defence that there was no promise of marriage held out by the accused in favour of P.W.1 and he had no such illegal connection with her. In support of canvassing his case, the learned counsel for the revision petitioner would cite the following decisions of the Honourable Apex Court (i) (2003)4 SUPREME COURT CASES 46 – UDAY VS. STATE OF KARNATAKA, certain excerpts from it would run thus: "21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each ease, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. 24. There is another difficulty in the way of the prosecution. There is no evidence to prove conclusively that the appellant never intended to marry her. Perhaps he wanted to, but was not able to gather enough courage to disclose his intention to his family members for fear of strong opposition from them. Even the prosecutrix stated that she had full faith in him. It appears that the matter got complicated on account of the prosecutrix becoming pregnant. Therefore, on account of the resultant pressure of the prosecutrix and her brother the appellant distanced himself from her. 25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature, two https://hcservices.ecourts.gov.in/hcservices/ conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. . . . .. This is what appears to have happened i this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what wash in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent." (ii) (2005) 1 SUPREME COURT CASES 88 – DEELIP SINGH ALIAS DILIP KUMAR VS. STATE OF BIHAR, certain excerpts from it would run thus: "19. 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 hash 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 https://hcservices.ecourts.gov.in/hcservices/ other words, the court hash 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. 28. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda12 which was approvingly referred to in Uday case1. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end (Cri LJ p. 1538, para 7) — “unless the court can be assured that from the very inception the accused never really intended to marry her”. (emphasis supplied) In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case9 (vide passage quoted supra). By making the solitary observation that “a false promise is not a fact within the meaning of the Code”, it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case1 as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused’s intention to marry cannot be ruled out. https://hcservices.ecourts.gov.in/hcservices/ 30. Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her? These are the questions which have to be answered on an analysis of the evidence. The last question raises the allied question, whether the promise to marry, if made by the accused, was false to his knowledge and belief from the very inception and it was never intended to be acted upon by him. As pointed out by this Court in Uday case1 the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 114-A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides. 34. According to PW 12, she did not like the accused making passionate gestures and therefore, she went to the house of the accused and made a complaint to his “bhabhi”. Though she promised to restrain him, the accused continued to do so. Her further version is that she was not willing to marry the accused; even then the accused used to come to the courtyard of her house many a time and it was within the knowledge of her parents and brother that the accused used to talk to her for hours. She used to accompany him whenever he wanted. Another statement of significance is that she tried to resist the talk of marriage by telling the accused that marriage was not possible because they belonged to different castes. However, she agreed to marry him after she was raped and under the impression that he would marry, she did not complain to anybody. These statements do indicate that she was fully aware of the moral quality of the act and the inherent risk involved and that she considered the pros and cons of the act. The prospect of the marriage proposal not materialising had also entered her mind. Thus, her own evidence reveals that she took a conscious decision after active application of mind to the things that were happening. Incidentally, we may point out that the awareness of the prosecutrix that the marriage may not take place at all in view of the caste barrier was an important factor that weighed with the learned Judges in Uday case1 in holding that her participation in the sexual act was voluntary and deliberate. 7. The learned Public Prosecutor cited the following https://hcservices.ecourts.gov.in/hcservices/ decisions: (i) (2006) 11 SCC 615-EDLA SRINIVASA RAO Versus STATE OF ANDHRA PADESH, certain excerpts from it would run thus: 11. In this connection our attention was also invited to the decision of this Court in Uday v. State of Karnataka4. In this case also this Court held that for determining whether consent given by the prosecutrix was voluntary or under a misconception of fact, no straitjacket formula can be laid down but the following factors stand out: (i) where a girl was of 19 years of age and had sufficient intelligence to understand the significance and moral quality of the act she was consenting to; (ii) she was conscious of the fact that her marriage was difficult on account of caste considerations; (iii) it was difficult to impute to the appellant, knowledge that the prosecutrix had consented in consequence of a misconception of the fact arising from his promise, and (iv) there was no evidence to prove conclusively that the appellant never intended to marry the prosecutrix. On the basis of the above factors, this Court did not feel persuaded to hold that consent was obtained by misconception of facts on the part of the victim. But as already mentioned above, in the present case we are satisfied that looking to the antecedent and subsequent events that the accused never intended to fulfil the promise of marriage, this was not a case where the accused was deeply in love. In the present case in our hand the accused persuaded her for a couple of months but she resisted it throughout. But, on one day he came to the house of her sister and closed the doors and committed forcible sexual intercourse against her will and consent, holding out a promise for marriage and continued to satisfy his lust. Therefore, this case stands entirely on a different footing. We may add a word of caution that the court of fact while appreciating evidence in such cases should closely scrutinise evidence while taking into consideration the factors like the age of the girl, her education, her social status and likewise the social status of the boy. 12. In R. v. Williams5 if a girl does not resist intercourse in consequence of misapprehension, this will not amount to a consent on her part. It was held that where a medical man, to whom a girl of fourteen years of age was sent for professional advice, had criminal connection with her, she making no resistance from a bona fide belief that he was treating her medically, he could be convicted for rape. 13. Similarly, in R. v. Flattery6 where the accused professed to give medical advice for money, and a girl of nineteen consulted him with respect to illness from which she was suffering, and he advised that a surgical https://hcservices.ecourts.gov.in/hcservices/ operation should be performed and, under pretence of performing it, had carnal intercourse with her, it was held that he was guilty of rape. 14. Likewise, in R. v. Williams7 the accused was engaged to give lessons in singing and voice production to the girl of sixteen years of age had sexual intercourse with her under the pretence that her breathing was not quite right and he had to perform an operation to enable her to produce her voice properly. The girl submitted to what was done under the belief, wilfully and fraudulently induced by the accused that she was being medically and surgically treated by the accused and not with any intention that he should have sexual intercourse with her. It was held that the accused was guilty of rape. 15. In this connection reference may be made to the amendment made in the Evidence Act. Section 114-A was introduced and the presumption has been raised as to the absence of consent in certain prosecutions for rape. Section 114-A reads as under: “114-A. Presumption as to absence of consent in certain prosecutions for rape.—In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent.” 16. If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. Presumption has been introduced by the legislature in the Evidence Act looking to atrocities committed against women and in the instant case as per the statement of PW 1, she resisted and she did not give consent to the accused at the first instance and he committed the rape on her. The accused gave her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her. (ii) (2007) 7 SCC 413-28 PRADEEP KUMAR ALIAS PRADEEP KUMAR VERMA Versus STATE OF BIHAR AND ANOTHER, an excerpt from it would run thus: "28. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to ‘misconception of fact’ within the meaning of Section 90, it needs to be clarified that a representation https://hcservices.ecourts.gov.in/hcservices/ deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause Secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in Jayanti Rani Panda case13 which was approvingly referred to in Uday case2. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end (Cri LJ p. 1538, para 7) —‘unless the court can be assured that from the very inception the accused never really intended to marry her’. (emphasis in original) In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case10 (vide passage quoted supra). By making the solitary observation that ‘a false promise is not a fact within the meaning of the Code’, it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case2 as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused’s intention to marry cannot be ruled out.” 8. A plain reading of the above said decisions coupled with Section 375 IPC and Section 114(A) of Indian Evidence Act would unambiguously and unequivocally highlight the fact that if the victim girl, in her evidence before the Court states that she did not consent for sexual intercourse, it shall be presumed that the sexual intercourse occurred between the accused and herself, amounts to rape. 9. In this background, the evidence on record should be analysed. P.W.1-the victim girl, categorically, without mincing words, would detail and delineate, express and expatiate that the accused was known to her, as at one point of time he was her https://hcservices.ecourts.gov.in/hcservices/ classmate; subsequently, he was vending milk, for which purpose he occupied a place near her parents' house to have his place of business; taking undue advantage