Bail Slip v. State by Inspector of Police,R.2, Kodambakkam Police Station,Chennai

six months and to pay a fine of Rs.25,000/-, in default, to undergosimple imprisonment for 1 ½ months. The sentences were ordered to runconcurrently. The accused was acquitted in respect of the offence underSection 506 (ii) IPC. The total fine amount of Rs.3,00,000/- was directedto be paid to the victim and her child born through the accused ascompensation. Aggrieved against the conviction and sentence passed by thetrial court, the present appeal has been filed before this Court. 2. In brief, the prosecution case is that the accused, whoemployed PW-1/victim girl as his Secretary/Assistant, on 08.12.1996,asking her to assist him in his transactions, took her to a Hotel; that,during the course of their stay in the Hotel, he administered sedativesthrough juice and on PW-1 becoming unconscious after consuming the juice,committed rape on her; that, even after PW-1 regaining consciousness, byconsoling her and creating a strong impression that he wouldmarry her, again he had intercourse and continued the intimacy for asubstantial period; and that, on PW-1 becoming pregnant, when she insistedthe accused to establish the marriage tie, he asked her to undergoabortion and refused to marry and ultimately after delivery of a childdeserted her. The victim, when approached the police at the advancedstage of pregnancy, was asked to come after delivery; hence, finding thather complaint is not being registered, she sent the complaint dated29.04.1998 through registered post to the Commissioner of Police, andultimately, the same was taken on file by the respondent police on21.5.1998. In the meantime, on 24.05.1998, she gave birth to a femalechild. 3. During trial, the prosecution examined PWs-1 to 10 and markedExs.P1 to P12 to establish its case while the defence filed two documentsas Exs.D1 and D2, however, did not choose to examine any witness.4 (A). It would be relevant to focus on the case of theprosecution as spoken to by PW-1/the victim, who was aged about 23 yearsat the time of occurrence and 27 while giving deposition. According toher, during November, 1996, she saw an advertisement in a Tamil Daily forthe post of Secretary in the Office run by the accused. She attended theinterview and the accused, collecting phone number from her, told that hewould call her after his trip to Bangalore. A week thereafter, on08.12.1996, the accused asked her to wait for him at the Bus-Stop nearMeenakshi College, Kodambakam High Road. The accused picked up PW-1 andtook her to a Hotel by name Maurya, where in a room opposite to the Lift,there were 5 to 6 persons connected to cine industry with whom he helddiscussion and asked PW-1 to make note of the discussion. Thereafter, hetook PW-1 to Room No.402 and asked her to wait there. After a shortwhile, the accused came there along with Room-Boy, who brought breadsandwich and juice for her,and stating that he would come shortly, heleft the room. On consuming the juice, PW-1 felt giddy and at that time,the accused entered in and locked the doors from inside. He removed thegarments of PW-1, who was losing consciousness due to the impact of thesedatives administered to her, and had sexual intercourse with her. On https://hcservices.ecourts.gov.in/hcservices/ regaining consciousness, PW-1 found her naked and started weeping,whereupon, the accused consoled her by saying that he would not abandonher and promised that he would definitely marry her. The accused furthertold that his wife, who is an illiterate, is ill-treating him; therefore,he would divorce her and thereafter marry PW-1. He requested the accusednot to divulge the happening to anyone as it would affect his image as afilm actor and his income and would also considerably reflect upon thevictim as they are going to unite in marital life. Even though PW-1refused and complained pain, he again had sex with her and she was notable to prevent him due to feebleness. Thereafter, the accused dropped hernear the Bus Stop and asked her to go back to her residence. PW-1 did notinform the incident to her family members. Subsequently, on the requestof the accused, PW-1 was willingly accompanying him to variousplaces/outstations and the relationship between them continued. DuringApril, 1997, the accused set up a watch shop and put PW-1 in charge of thesame. PW-1 was also accompanying the customers of the accused in the realestate business during Holidays. While so, she became pregnant andrevealed the said fact to the accused, whereupon, he persuaded forabortion and took her to a Nursing Home during August 1997. When theMedical Officer asked her opinion as to whether she is willing for asurgery for the purpose of abortion, she refused therefor. When the victimwent to the office of the accused and informed him of her refusal forabortion, the accused got wild and, by stating that it was only the victimwho voluntarily came to him to have sexual relationship, that he has gottwo wives and families to look after and that he would not marry her,asked her to leave the Office and also beat her. Thereafter, PW-1continued to persuade the accused to take her with him. Accepting herrequest, he took her to his sister's husband, who was running a shopopposite to Chennai Corporation Office, and by introducing PW-1 as hiswife and stating that she is pregnant, requested him to arrange for PW-1'sstay at Bangalore with his family till her delivery. Accordingly, PW-1was taken to Bangalore, where she stayed for four weeks and as there arosemisunderstanding between PW-1 and the sister of the accused, she returnedback. The accused took PW-1 to the house of his second wife, where shecould not stay beyond three weeks due to disagreement. Subsequently, shereturned back to the residence of her mother, where she was not admitted.On her request, the accused made her to stay at his friend's place whereconstruction activity was going on; hence, she feared to stay there. Whenshe threatened the accused that she would commit suicide, he came to herand made arrangements for her stay at different places. Subsequently, theaccused quarrelled with her and also assaulted her, as a result of which,she was admitted in J.J. Hospital as In-patient for a week. Afterdischarge, she went to Kodambakkam Police Station to lodge a complaintduring night time. She was persuaded by the Police Officer to go back andcome during day time for giving complaint. Accompanied by her father, PW-1again came to the police station and gave complaint. On coming to know ofthe same, the accused came to her, took her and fetched a rental house atVenkateswara Nagar for her stay. In the meantime, the accused persuadedher to withdraw the complaint given to the police to the effect that theaccused is not responsible for her pregnancy and that the father of child https://hcservices.ecourts.gov.in/hcservices/ she is carrying is in Dubai, for which, she refused. Thereafter, since theaccused quarrelled again with her, with the assistance of her father, shereported the matter to the police and also informed the press. She waskept in Jawahar Home for two weeks, during which time, the accusedtook her to the residence of his second wife and as there was quarrelbetween the accused and his second wife, she was not even allowed to stayduring night and was expelled therefrom. Since she developed labourpain at that time, she was taken to the nearby hospital for treatment. On24.05.1998, she gave birth to a female child. After discharge from thehospital, she went taking the baby with her to the residence of theaccused, however, she was not admitted by the accused. PW-1, at the firstinstance sent a complaint to the police through registered post, andthereafter in person went to the police station and lodged the complaint.In November, 1998, she gave a statement before the IX MetropolitanMagistrate, Saidapet, Chennai. She along with her baby was sent formedical examination. (B) PW-2 is the Medical Officer attached to Child WelfareMedical and Research Institute. She has spoken to about the taking ofblood samples for conducting D.N.A. Test from PW-1, her child and theaccused. PW-3 is the Medical Officer, who is running J.J. Hospital. Shehas stated that she gave treatment to PW-1 in her Hospital during April1998 as she complained pain; that after treatment, PW-1 was discharged;and that, at the time when PW-1 was undergoing treatment, the accusedvisited her twice. PW-4 is the Health Inspector, who issued BirthCertificate, dated 19.06.1998, in respect of the child born to PW-1 on24.05.1998. (C) PW-5 is the sister's husband of the appellant. He has beenexamined by the prosecution to speak about the accused entrusting thecustody of PW-1 with him to take her to his residence at Bangalore andabout her stay in his residence; however, since he has not supported thecase of the prosecution, he has been treated as hostile witness. (D) PW-6 is the Medical Officer, who admitted PW-1 in theHospital run by her for delivery after obtaining consent from theappellant. He has deposed to the effect that PW-1 was admitted fordelivery and after giving birth to a female child on 24.05.1998, she wasdischarged on 26.05.1998 and that it is the appellant who settled thehospital bills. (E) PW-7 is the Manger of the Hotel 'Maurya International',Madras. He has stated that during December, 1996, four rooms includingRoom No.402 were booked by Akshaya Films, Bombay, for holding discussion.PW-8 is the Medical Officer who examined the accused for virility andissued Ex.P-6 in that regard. (F) PW-9 is the Inspector of Police, who, on receipt of thecomplaint forwarded from the Office of the Commissioner of Police,registered a case in Crime No.1334 of 1998 for offences punishable under https://hcservices.ecourts.gov.in/hcservices/ Sections 417, 341, 323, 294(b) and 506 (2) IPC. Ex.P1 is the complaintand Ex.P7 is the Printed F.I.R. During the course of investigation, herecorded the statement of witnesses. He has stated that that thestatement of the complainant under Section 164 Cr.P.C. was recorded by theMetropolitan Magistrate on 02.11.1998. The accused was arrested on11.12.1998 and and was remanded to Judicial custody. PW-9 took steps toconduct D.N.A. test for PW-1, the child and the accused and received thereport on 02.02.1999. While proceeding with the investigation, hecollected materials and documents in the form of hotel receipts, medicalreports etc. Further investigation was taken up by PW-10, who aftercompleting the investigation, filed final report for offences punishableunder Sections 421, 342, 294(b), 506 (ii), 376 and 413 IPC.(G) When the accused was questioned under Section 313 Cr.P.C.,while answering in the affirmative for some of the questions, he deniedothers. The appellant admitted the fact of PW-1 joining his Office asAssistant, her admission in the hospital for delivery, settlement ofhospital bills by him, blood samples taken from him for conducting DNAtest and also the fact that he was having sexual relationship with PW-1;however, he stated that it is only due to the compulsion on the part ofPW-1, he was having such affair with her. (H) On the side of the defence, two documents have been markedas Exs.D1 and D2. Ex.D1 is an affidavit that was filed by PW-1 before theCourt of Sessions at Chennai in Crl.M.P. No.8263 of 1998, in which, it isstated by PW1 that she was not aware of the contents of the complaint.Denying the contents of the statement made by her under Section 164Cr.P.C. before the Magistrate, it has been emphatically stated in theaffidavit that the appellant never had any forced sexual relationship withher and that she was neither threatened nor assaulted by the accused.Ex.D2 is a letter written by PW-1 wherein she has stated that she is inlove with the appellant. Insofar as Ex.D1 is concerned, PW-1, in hercross examination, stated that such affidavit has been filed by her on thecompulsion of the relatives of the accused to secure his bail and insofaras Ex.D2 is concerned, though her signature is admitted, she has deniedthe contents of such letter. 5. The learned trial Judge, on perusal of the oral anddocumentary evidence and considering the arguments advanced on eitherside, passed an order of conviction and sentence against the accused asaforementioned.6. Learned Senior Counsel for the appellant, by pointing outthat the prosecution case rests mainly on the testimony of PW-1 and thatsince her testimony can be proved to have tainted with improvements anddeviations when contrasted with the F.I.R and her statement under Section164 Cr.P.C. before the Magistrate, would submit that the case of theprosecution shall fall to ground. According to him, in the complaint,though PW-1 has stated that she was given a cool drink and after takingthe same she became unconscious, nothing has been mentioned about the actof rape by the appellant except stating ' ... when I regained conscious I https://hcservices.ecourts.gov.in/hcservices/ found that I was deserted by him. .." Similarly, though it is simplystated in the complaint that the affair with the accused continued andthat the accused made all arrangements to send her out of country bygetting passport, in her evidence, PW-1 has given an exaggerated narrationabout the happening by building up her story. In the complaint, the nameof the Hospital finds place, however, the date on which she was admittedthere is not mentioned. Learned Senior Counsel made specific reliance onthe date and timing mentioned by PW-1 in her evidence viz., on 08.12.1996at 1.30 P.M., she was taken by the accused to Room No.402 at Maurya Hotel,where she was subjected to rape, and that she returned to her residenceby 7 P.M. on that day. He pointed out that the prosecution relied on Ex.P-3 Hotel Receipt, wherein, it has been stated that Room No.402 was bookedby Ayesha Films, Mumbai, on 08.12.1996 at 8 P.M. for a week. According tohim, the above aspects would go to show that the occurrence had not takenplace at the time and in the manner as alleged by the prosecution. Thoughthe fruit juice containing sleeping pills is said to have been given toPW-1 by the accused through Room-body, the said Room-boy has not beenexamined. Failure on the part of the prosecution to examine such crucialwitness is fatal to its case. Several improvements have been made in thetestimony of PW-1 before Court, however, for such improvements nocorroborative materials have been produced. Though it is alleged that thefirst act of sex with PW-1 took place on 08.12.1996 and that she hasquarrelled with the appellant, it is the case of PW-1 that she neverinformed the same to anyone including her parents. Though the explanationgiven by PW-1 is that she remained silent on the promise made by theappellant that he would marry her, the fact remains that she kept quietfor months together without divulging the relationship to anybody. Thecomplaint has been given on 29.04.1998 for the occurrence that took placeway back in 1996 ie., on 08.12.1996, with considerable delay. The casewas taken on file on 21.05.1998. After the occurrence, PW-1 continued thesexual relationship with the appellant and she accompanied him to variousplaces. Only after she became pregnant and when the appellant asked her toget aborted, the terms between the appellant and PW-1 became bitter. Referring to the evidence of PW-1, learned Senior Counselsubmits that it is apparent that at the time when PW-1 was admitted in theHospital for delivery, it is the appellant who went there and settled allthe bills and that he made all possible efforts to make her live alongwith his wives and that only because of the attitude of the 1st and 2ndwife of the accused, PW-1 could not be kept in those places. Further,when questioned under Section 313 Cr.P.C., he has admitted his paternityto the child. Though initially, case against the accused was registeredunder Section 417 IPC. along with other penal provisions, only onconclusion of the investigation, to strengthen the case of theprosecution, Section 376 IPC. has been purposely added. Even on the dateof occurrence, PW-1 was aged about 23. On a perusal of the evidence ofPW-1 and Ex.P-1, it is quite evident that the relationship from theinception was only with the willingness of PW-1 and that her subsequentconduct fortifies only the defence of the appellant. https://hcservices.ecourts.gov.in/hcservices/ At any rate, according to the learned Senior Counsel, in view ofthe conduct of PW-1, viewed in the background of the above aspects, wouldonly lead to a definite conclusion that no such occurrence and meetingtook place at the relevant time and even so, it cannot be categorised asrape. He further submits that though there is no material to indicatethat the appellant was continuing the affair with the victim on thepromise of marriage, the fact remains that he was having such relationshipwith her consent and willingness, which ultimately resulted in the victimbecoming pregnant and giving birth to a child. In such circumstances, hesubmits that the accused may be accountable for damages under civil lawand that the conviction and sentence imposed by the court below may be setaside.7. Per contra, learned Government Advocate submits that, thoughthe complaint was given belatedly in this case where the offence allegedto have been committed is rape, the fact remains that the first act wascommitted by the appellant by way of administering juice mixed withsedative and it is only thereafter, PW-1, unable to wriggle out from thesituation, continued the affair. Even though PW-1 is a major and theoffence under Section 376 IPC. may not be made out, because of the promisemade by the appellant, PW-1 continued the affair, resulting in herpregnancy and giving birth to a child. According to him, since materialsare available to show that the appellant made false promise to allure thevictim, he is liable to be convicted at least under Section 417 IPC. 8. I have carefully perused the materials available on recordand considered the submissions made by the respective counsel.Three charges have been framed by the trial court against theappellant/accused for the offences punishable under Sections 376, 417 and506 (ii) IPC. and on conclusion of the trial, the learned trial Judge,holding that two of the charges have been proved by the prosecution,convicted the accused under Sections 376 and 417 IPC. As could be seen,the first charge is that between 08.12.1996 and 10.12.1996, one day, atabout 2 P.M., PW-1 was given fruit juice mixed with stupefying substanceat the instance of the accused and, at the time when she becameunconscious, without her consent, the appellant committed rape on her.The second charge is that, subsequent to the first occurrence, theappellant had intercourse with PW-1 on many occasions on the promise ofmarriage and when she became pregnant as a result thereof, he failed tomarry her. To appreciate the allegations made in the first charge, the evidenceof PW-1 and the complaint given by her must be scrutinised carefully. Theoccurrence is alleged to have taken place on 08.12.1996 and the complaintwas given on 29.04.1998, wherein it has been specifically stated asfollows:-" .... Immediately after drinking cool drink I lost myconscious. After half hour or so when I regained consciousI found that I was deserted by him. On telling he promised https://hcservices.ecourts.gov.in/hcservices/ me to marry and asked me to join the duty in his real estateshop. ... "Interestingly, nowhere in the complaint, PW-1 alleged that the appellantindulged in sexual intercourse with her; that is the reason why, on thesaid complaint, case was registered by the police under Sections 417, 341,323, 294(b), 506 (ii) IPC. Later on, during the course of investigation,she was produced before the Magistrate for the purpose of recordingstatement under Section 164 Cr.P.C. After collecting other materials,only at the time of filing the final report, the offence under Section 376IPC. came to be included, resulting in framing of the first charge by thetrial court. In this context, it is useful to refer to the 'fifthlycircumstance' falling under Section 375 IPC., which reads as follows:-" Fifthly:-- With her consent, when, at the time ofgiving such consent, by reason of unsoundness of mind orintoxication or the administration by him personally orthrough another of any stupefying or unwholesomesubstance, she is unable to understand the nature andconsequences of that to which she gives consent. "Both in the complaint and in the evidence of PW-1, it has been stated byher that she became unconscious on taking the juice mixed with stupefyingsubstance, given to her at the instance of the accused. Though in thecomplaint, the sexual intercourse by the appellant has not been mentionedat all, in her evidence before Court, PW-1 gives a narration of what hadhappened on that day. It is pertinent here to mention that if the evidenceof the prosecutrix is reliable and free from improvements andcontradictions, the same can be solely acted upon by the court withouteven looking for corroboration by other materials. However, in view ofthe absence of allegation in the complaint regarding sexual intercourse bythe appellant with PW-1, a cautious and careful scrutiny of her evidenceis required to be made. It is the charge against the appellant that the first act of rapetook place around 2 P.M. In her evidence, PW-1 positively stated that sheleft the home on the occurrence day ie., on 08.12.1996, at 1.30 P.M andfrom the Bus Stop, she was taken by the appellant to the Hotel, where shewas asked by him to wait in Room No.402 and after some time, breadsandwich and juice were delivered to her through a room-boy. Afternarrating the act of rape committed on her by the appellant when shebecame semi-conscious, she states that, on regaining consciousness, shefelt pain and started crying and, at that time, the appellant said that hewould divorce his wife as she, being an illiterate, is harassing him, andassured that as soon as she is divorced, he would marry her and alsorequested her that the relationship between him and PW-1 should not bedivulged to anybody as he being a cine-actor, the same would damage hisimage and he would not get chances in films and he may also lose hisincome. PW-1 further states that though she resisted, he again had sexwith her and thereafter directed her to go back to her residence and at https://hcservices.ecourts.gov.in/hcservices/ the time she reached her house it was about 7 P.M. Thus, even as per herevidence, on that day, she was in the company of the appellant between1.30 P.M. and prior to reaching her residence at 7 P.M. Pausing here, it is useful to turn towards the deposition of PW-7, the Hotel Manager, who has been examined to substantiate the booking ofRoom No.402 by Akshaya Films for holding discussion, and through whomEx.P-3 Guest Registration Card has been marked. It is his positiveevidence that he had never seen/met PW-1 in the Hotel on any date. Thoughit has been specifically mentioned that the room has been allotted as perEx.P.3 only at 8 PM. on 08.12.1996, no further question has been put tothis witness so as to substantiate that the appellant already visited thehotel prior to 8 P.M. Further, it is the positive case of the prosecutionthat fruit juice has been given to PW-1 through a Room-Boy, however, hehas not been examined as a prosecution witness. Similarly, though it isthe case of the prosecution that along with the appellant several otherpersons were also staying with him on arrangements made by Akshaya Filmsfor holding discussion, those persons were not examined. At any rate, atthe alleged time of occurrence, Room No.402 was not at all occupied by theappellant; that being so, I am of the considered view that PW-1 would nothave visited the appellant in Room No.402 as alleged in the charge.Therefore, the charge that a meeting took place between 08.12.1996 and10.12.1996 is not substantiated. Added to that, even in the complaintEx.P-1, no specific allegation of rape has been made by PW-1, hence,initially, the police did not register the case under Section-376 IPC.Moreover, admittedly, after the first meeting, PW-1 was willingly roamingaround with the appellant without even informing her parents to severalplaces including outstations. The conduct of PW-1, aged about 23, wouldgo to show that she was moving freely and friendly with the appellant andcontinued the sexual affair with whole consent. It is also seen that the complaint was given on 29.04.1998, casewas registered on 21.05.1998 and, during the course of investigation, theappellant was arrested. Along with the bail application, requesting forrelease of the accused on bail, PW-1 filed an affidavit/Ex.D1 before lowercourt, wherein she stated as follows:-" It is true that a complaint signed by me was given tothe respondent police through my father when he was alive inthe month of May 1998. I am not even aware of the contentsof the complaint. Thereafter Mr.Mansoor Ali Khan informedme that a complaint signed by me against him has been givento the (L&O) R-2 Police Station. Denying the Complaint andnarrating the actual events I swore a declaration before aNotary public on the 22nd of May 1998 and sent it to therespondent police as well as the city Commissioner of police.Thereafter I was having good relationship Mr.Mansoor AliKhan. .... https://hcservices.ecourts.gov.in/hcservices/ I hereby state that Mr.Mansoor Ali Khan never had anyforced sexual relationship with me, never threatened me orassaulted me. ..."In this regard, when PW-1 was confronted with the contents of Ex.D1 duringthe course of cross examination, admitting the filing of such affidavit,she has simply stated that she did so on the promise given by the brotherof the appellant that marriage between her and the appellant would beperformed after the appellant was released on bail. Ex.D2 is a letter alleged to have been written by PW-1 to theappellant, wherein, she has expressed her mad love towards the appellant.Though she has accepted her signature alone and denied the contents of theletter, on carefully scrutinising the strokes of the words written,comparing the same with the signature and other sequences, a safeconclusion could be arrived at that it is she who wrote the contents ofthe letter also. No further clarification from her was elicited by theprosecution that such signature was assigned in a blank sheet and that theappellant would have filled up the same. In fact, the language written isunprintable but conveys her mad love towards him. On a perusal of the contemporaneous materials, I am of the consideredview that PW-1 was moving with the appellant on her own volition and it ishard to believe that she had consented to sexual intimacy with him only asa consequence of her belief, based on his promise that they would getmarried in due course. Hence, it can be safely concluded that the case ofthe appellant would not fall under Section 376 IPC. (fifthly).It is also seen that after PW-1 becoming pregnant and on beingforsaken by her parents, to accommodate her, the appellant took her to theresidence of his wife, his brother in law's residence at Bangalore andalso to the residence of his friends etc. When she was admitted in thehospital for prenatal healthcare, the appellant settled the hospitalbills. Similarly, only after obtaining his consent, PW-1 was admitted fordelivery and it is the appellant, who cleared all the bills. All thesefacts were not denied by the appellant in his statement under Section 313Cr.P.C. Therefore, the fact remains that the appellant and PW-1 werecontinuously having affairs till delivery of child. It is only afterdelivery, the quarrel between them worsened resulting in filing of thecomplaint against the appellant. It is the assertion and specific case ofthe appellant that only PW-1 compelled him to have such relationship withher. The whole prosecution case rests on the evidence of PW-1 and as couldbe seen from the various aspects pointed out above in respect of herevidence, it is not safe to sustain the conviction under Section 376 IPC.against the appellant. Other prosecution witnesses are not of much useexcept to speak about the DNA test conducted to substantiate that thechild born to PW-1 was through the appellant. In such circumstances, I amof the considered view that the offence under Section 376 is not made out. https://hcservices.ecourts.gov.in/hcservices/

9. Coming to the allegation levelled against the appellant underSection 417 IPC. as per the second charge, the promise made by theappellant to marry PW-1 and his incessant sexual relationship with herresulting in pregnancy and delivery must be taken into consideration.There are ample materials to substantiate through the evidence of PW-1 andother corroborative factors the sexual relationship between PW-1 and theappellant, however, the promise given by the appellant prior to thecommission of such act could not be substantiated by the prosecution.Though it is the case of PW-1 that she consented for continuing therelationship only on the promise of the appellant, the same has not beenproved beyond reasonable doubt. In this context, it is relevant to referto the decision of the Supreme Court reported in 2003 SCC Criminal 775(Uday vs. State of Karnataka), wherein, the consequence of such consent ifso given has been taken into consideration and it was held as follows:-" 21. It therefore appears that the consensus ofjudicial opinion is in favour of the view that the consentgiven by the prosecutrix to sexual intercourse with a personwith whom she is deeply in love on a promise that he wouldmarry her on a later date, cannot be said to be given under amisconception of fact. A false promise is not a fact withinthe meaning of the Code. We are inclined to agree with thisview, but we must add that there is no straitjacket formulafor determining whether consent given by the prosecutrix tosexual intercourse is voluntary, or whether it is given undera misconception of fact. In the ultimate analysis, the testslaid down by the courts provide at best guidance to thejudicial mind while considering a question of consent, butthe court must, in each case, consider the evidence before itand the surrounding circumstances, before reaching aconclusion, because each case has its own peculiar factswhich may have a bearing on the question whether the consentwas voluntary, or was given under a misconception of fact.It must also weigh the evidence keeping in view the fact thatthe burden is on the prosecution to prove each and everyingredient of the offence, absence of consent being one ofthem.22. The approach to the subject of consent as indicatedby the Punjab High Court in Rao Harnarain Singh and by theKerala High Court in Vijayan Pillai has found approval bythis Court in State of H.P. v. Mango Ram. Balakrishnan, J.speaking for the Court observed (SCC pp.230-31, para 13)' The evidence as a whole indicates that therewas resistance by the prosecutrix and there was novoluntary participation by her for the sexual act.Submission of the body under the fear of terror cannotbe construed as a consented sexual act. Consent for thepurpose of Section 375 requires voluntary participation https://hcservices.ecourts.gov.in/hcservices/ not only after exercise of intelligence based on theknowledge of the significance and moral quality of theact but after having fully exercised the choice betweenresistance and assent. Whether there was consent ornot, is to be ascertained only on a careful study of allrelevant circumstances. '23. Keeping in view the approach that the court mustadopt in such cases, we shall now proceed to consider theevidence on record. In the instant case, the prosecutrix wasa grown-up girl studying in a college. She was deeply inlove with the appellant. She was, however, aware of the factthat since they belonged to different castes, marriage wasnot possible. In any event the proposal for their marriagewas bound to be seriously opposed by their family members.She admits having told so to the appellant when he proposedto her the first time. She had sufficient intelligence tounderstand the significance and moral quality of the act shewas consenting to. That is why she kept it a secret as longas she could. Despite this, she did not resist the overturesof the appellant, and in fact succumbed to them. She thusfreely exercised a choice between resistance and assent. Shemust have known the consequences of the act, particularlywhen she was conscious of the fact that their marriage maynot take place at all on account of caste consideration. Allthese circumstances lead us to the conclusion that shefreely, voluntarily and consciously consented to havingsexual intercourse with the appellant, and her consent wasnot in consequent of any misconception of fact. 24. There is another difficulty in the way of theprosecution. There is no evidence to prove conclusively thatthe appellant never intended to marry her. Perhaps he wantedto, but was not able to gather enough courage to disclose hisintention to his family members for fear of strong oppositionfrom them. Even the prosecutrix stated that she had fullfaith in him. It appears that the matter got complicated onaccount of the prosecutrix becoming pregnant. Therefore, onaccount of the resultant pressure of the prosecutrix and herbrother the appellant distanced himself from her. "The above case law has been relied on by the Supreme Court in Deelip Singh@ Dilip Kumar v. State of Bihar (2004 (4) Crimes 371), wherein, thequestion raised by the Supreme Court, the discussion and observation madethereon are germane, hence, the relevant portions are extracted below:-" 33. The remaining question is whether on the basis ofthe evidence on record, is it reasonably possible to holdthat the accused with the fraudulent intention of inducingher to sexual intercourse, made a false promise to marry? Wehave no doubt that the accused did hold out the promise to https://hcservices.ecourts.gov.in/hcservices/ marry her and that was the predominant reason for the victimgirl to agree to the sexual intimacy with him. PW12 was alsotoo keen to marry him as she said so specifically. But wefind no evidence which gives rise to an inference beyondreasonable doubt that the accused had no intention to marryher at all from the inception and that the promise he madewas false to his knowledge. No circumstances emerging fromthe prosecution evidence establish this fact. On the otherhand, the statement of PW-12 that 'later on', the accusedbecame ready to marry her but his father and others took himaway from the village would indicate that the accused mighthave been prompted by a genuine intention to marry which didnot materialize on account of the pressure exerted by hisfamily elders. It seems to be a case of breach of promise tomarry rather than a case of false promise to marry. On thisaspect also, the observations of this Court in Uday's case atparagraph 24 comes to the aid of the appellant. 34. ......... 35. In the result, the conviction and sentence isset aside and the appeal is allowed.36. With this verdict, the appellant, no doubtextricates himself from the clutches of the penal law bygetting the benefit of doubt on charge levelled against him.But, we cannot ignore the reprehensible conduct of theappellant, who by promising to marry the victim woman,persuaded her to have sexual relations and caused pregnancy.The act of the accused left behind her a trial of misery,ignominy and trauma. The only solace is that she marriedsubsequently. We are informed that the female child born outof the illicit relationship is now living with her marriedmother and she is about 14 year old now. Though there is noevidence to establish beyond reasonable doubt that theappellant made a false or fraudulent promise to marry, therecan be no denial of the fact that the appellant did commitbreach of the promise to marry, for which the accused isprima facie accountable for damages under civil law. ....." ,It is seen that the appellant is a Muslim and PW-1 is a Hindu. She wasaged about 23, sufficiently matured and intelligent, at the time ofoccurrence. She knew that the accused is a married man and a known cinemavillain. She was in mad love with the appellant and going freely alongwith him even to outstations and until she became pregnant, therelationship was not intimated to her parents. Voluntary participation istherefore apparent and her consent was not in consequence of anymisconception of fact. It appears from the evidence that the appellantbeing a Muslim, twice married, though refused to marry PW-1, was openlymoving around with her; that, after pregnancy, he took her to his wife'sresidence and sister's residence at Bangalore and made her to live withthem and also set up a separate residence for a while; that only with hisconsent, PW-1 was admitted in the Hospital for delivery and it is he who https://hcservices.ecourts.gov.in/hcservices/ cleared the hospital bills; and that it is only after the complaint,everything got precipitated. In the light of the principles enunciated on akin issues by theApex Court in the above two case laws and taking note of the fact that theprosecution has not adduced sufficient materials to prove that the accusedpromised to marry PW-1 and with that promise continued the sexualrelationship and of the fact that PW-1 was a major at that time and aconsenting party to the affair, offence under Section 417 IPC is notattracted. 10. However, simply because the accused is disentangled from thepenal law, this Court cannot close its eyes to the repulsive approach onthe part of the accused with the victim girl in alluring her andcontinuing the affair, which ultimately resulted in the victim becomingpregnant and giving birth to a female child; and relieve him fromaccountability for damages under civil law. The paternity of the accusedto the child has been well established by the prosecution by subjectinghim to DNA Test. Therefore, learned Senior Counsel fairly conceded thatthe appellant may be liable to pay damages to the victim under civil law.Learned Senior Counsel, on instructions from the appellant/accused,submitted that the appellant is willing to deposit a sum of Rs.7,00,000/-(Rupees seven lakhs only) apart from Rs.3,25,000/- already imposed asfine, all put together Rs.10,25,000/-, and the same may be treated ascompensation payable to PW-1 to take care of herself and the child born toher through the accused without prejudice to her other claims. The offermade by the learned Senior Counsel on instructions from the appellantseems to be reasonable.11. Consequently, the order of the trial court convicting andsentencing the appellant for the offences punishable under Sections 376(1) and 417 IPC. is set aside and the appellant stands acquitted of thecharges. The appellant is directed to deposit Rs.7,00,000/- (Rupees sevenlakhs only) before the trial court to the credit of Sessions Case No.579of 2000 within a period of six weeks from to-day, failing which, the trialcourt is directed to initiate recovery proceedings known to law againsthim. 12. The appeal is allowed with the above direction to theappellant/accused.13. It is seen that the child was born in the year 1998; hence,by this time she would be about 9 year old. It is not known as to whetherthe victim subsequently got married or not. Hence, it is just and properto apportion the amount between the victim and the minor child.Accordingly, the victim is entitled to Rs.3,25,000/- and the minor isentitled to the remaining sum of Rs.7,00,000/-. On request being madefrom PW-1, the lower court shall order payment of her share and the shareof the minor shall be kept in her name in a Fixed Deposit with anationalised bank. The share of the minor child along with interest shall https://hcservices.ecourts.gov.in/hcservices/ be payable to her on attaining majority. If required, the interest accruedmay be allowed to be withdrawn for the benefit of the minor by theguardian/PW-1. However, for the purpose of meeting the imminent needs ofthe minor girl, the lower court can permit the amount to be paid over tothe guardian/PW-1 either partly or in whole depending on the genuine andreasonable requirements concerning the maintenance of the child.JI.Sd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo,1. The Principal Sessions Judge, Chennai.2. The 17th Metropolitan Magistrate, Saidapet, Chennai-8.3. -do- Thro' The Chief Metropolitan Magistrate, Chennai-8.4. The Superintendent Central Prison, Vellore.5. The Superintendent Central Prison, Chennai.6. The Inspector of Police, R2, Kodambakkam Police Station,Chennai-2.7. The Public Prosecutor, High Court, Madras.+1 cc to Mr.A.R.Nixon, Advocate Sr.No.45382.AKR(CO)dcp/16.8Crl.Appeal No.284 of 2001