Case: Karthi @ Karthick Vs. State Rep By Insp.Of Police, Tamil Nadu

Poomari (PW1). In the aforesaid view of the matter, we confirm the concurrent determination of the courts below, that the accused-appellant Karthick committed deceit with the prosecutrix Poomari (PW1) 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 for us to accept the contention advanced on behalf of the accused-appellant Karthick, that sexual intercourse by the accused-appellant Karthick with the prosecutrix Poomari was consensual. Obtaining consent by exercising deceit, cannot be legitimate defence to exculpate an accused. 15. The second contention advanced at the hands of the learned counsel for the appellant was, that the accused-appellant Karthick had not given any promise to the prosecutrix Poomari (PW1), that he would marry her. From all the reasons referred to by us, while dealing with the first contention advanced by learned counsel for the appellant, it is not possible for us to accept the instant contention as well. However, in addition to the factual position referred to while dealing with the first contention, there is something further that needs to be recorded. It is necessary to notice, that in the first instance when the prosecutrix Poomari (PW1) disclosed the matter of deception and sexual intercourse to her family, the matter was taken to the village elders. Four village elders have appeared before the Trial Court and recorded their statements. Each one of them affirmed, that they had required the accused-appellant Karthick to agree to marry the prosecutrix Poomari (PW1) on account of his physical relationship with her. Only on denial to accede to their request, on their suggestion, the matter was reported to the police. The instant aspect of the matter fully demolishes the projection made by the accused-appellant Karthick, while recording of his statement under Section 313 of the Code of Criminal Procedure. During his aforesaid statement, he had expressly alleged, that it was for the purpose of forcing the accused-appellant to shell out an exorbitant sum of money to the prosecutrix Poomari (PW1) and her family members, that the instant accusation had been levelled against him. Actually from the statements of Veerachamy (PW5), Ramasamy (PW6), Ayyavoo (PW7) and Nagesh (PW8), it clearly emerges that the intention of the prosecutrix Poomari (PW1) and her brother Manikannan (PW2), as also her father, Muthukaruppa Thevar (PW4) was, that he should marry her. The desire of the family, that the accused-appellant should marry the prosecutrix was based on the undisputed factual position, that Karthick had had sexual intercourse with Poomari repeatedly. No such suggestion was shown to have been made to the concerned prosecution witnesses. This was only an afterthought. It is, therefore, not possible for us to accept the plea canvassed at the hands of the learned counsel for the appellant, that the accused appellant had not made any promise to the prosecutrix Poomari (PW1), that he would marry her. 16. The last contention advanced at the hands of the learned counsel for the appellant was, that the first occurrence of sexual intercourse commenced six months prior to the date when the complaint was made to the Police (on 10.10.2003). It was, therefore, the contention of the learned counsel for the appellant, that same should be treated as an afterthought. It was pointed out, that the registration of a case by the prosecutrix Poomari (PW1) was no more than a scheme to falsely accuse and harm the accused-appellant. It was submitted, that even a day’s delay in registering a complaint has vital repercussions. It was also pointed out, that delay in the instant case, had obvitated any positive finding on the basis of a medical examination of the prosecutrix Poomari (PW1). It is, therefore, the vehement contention of the learned counsel for the appellant, that delay in registering the complaint with the police in the facts and circumstances of this case, should be accepted as sufficient to infuse a sense of doubt in the prosecution story. 17. Having examined the contention advanced at the hands of the learned counsel for the appellant, we are of the view that there has been no delay whatsoever at the hands of the prosecutrix Poomari (PW1). As long as commitment of marriage subsisted, the relationship between the parties could not be described as constituting the offence of rape under Section 376 of the Indian penal Code. It is only after the accused-appellant Karthick declined to marry the prosecutrix Poomari (PW1), that a different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months. Things changed when the accused-appellant declined to marry the prosecutrix. After the promised alliance was declined, the prosecutrix without any delay disclosed the entire episode to her immediate family. Without any further delay, the brother and father of the Poomari (PW1) approached the village elders. The village elders immediately summoned the accused-appellant Karthick by holding a panchayat. The village elders made all efforts to settled the issue amicably. The family, as is usual in such matters, wished to settle the matter amicably by persuading the accused-appellant to view the matter realistically. It is only on the refusal of the accused-apellant Karthick, to marry the prosecutrix Poomari (PW1), that the question of making a criminal complaint arose. After the meetings of the panchayat, wherein the accused-appellant declined to marry the prosecutrix Poomari (PW1), without any further delay, the prosecutrix Poomari (PW1) reported the matter to the police on 10.10.2003. 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. 18. No other submission, besides those noticed hereinabove, was advanced at the hands of the learned counsel for the appellant.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]we are of the view that there has been no delay whatsoever at the hands of the prosecutrix Poomari (PW1). As long as commitment of marriage subsisted, the relationship between the parties could not be described as constituting the offence of rape under Section 376 of the Indian penal Code. It is only after the accused-appellant Karthick declined to marry the prosecutrix Poomari (PW1), that a different dimension came to be attached to the physical relationship, which had legitimately continued over the past six months. Things changed when the accused-appellant declined to marry the prosecutrix. After the promised alliance was declined, the prosecutrix without any delay disclosed the entire episode to her immediate family. Without any further delay, the brother and father of the Poomari (PW1) approached the village elders. The village elders immediately summoned the accused-appellant Karthick by holding a panchayat. The village elders made all efforts to settled the issue amicably. The family, as is usual in such matters, wished to settle the matter amicably by persuading the accused-appellant to view the matter realistically. It is only on the refusal of the accused-apellant Karthick, to marry the prosecutrix Poomari (PW1), that the question of making a criminal complaint arose. After the meetings of the panchayat, wherein the accused-appellant declined to marry the prosecutrix Poomari (PW1), without any further delay, the prosecutrix Poomari (PW1) reported the matter to the police on 10.10.2003. 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.