S.Suresh v. State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :: 08-10-2007CORAMTHE HONOURABLE MR. JUSTICE S. PALANIVELUCrl.O.P.No.28080 OF 2007S.Suresh...Petitioner -vs-State, represented by Inspector of Police, Kadathur Police Station, Dharmapuri District.... Respondent Petition under Section 482 of the Code of Criminal Procedure. For Petitioner : Mr.M.RaviFor Respondent : Mr.A. Saravanan, Government Advocate (Crl. Side)

O R D E RThis petition has been filed to call for the records inconnection with F.I.R.No.212 of 2007 on the file of Kadathur Police, Station, Dharmapuri District, and to quash the same.2. De facto complainant is a married woman, who has got twinboys, aged three years, and a daughter. She is living away from herhusband, in view of certain misunderstandings. Sons are with her husband, while she is maintaining the daughter. She is working as a teacher in Panchayat Union Elementary School in Veppilaipatti village. She used toattend the teachers' meeting every month in Thalanattam Panchayat UnionMiddle School. The accused, who too is a teacher in Panchayat UnionElementary School in Nattamedu, also used to participate in the saidmeetings. He voluntarily began to get familiarity with her. While he isa brahmin, she belongs to Adi-dravidar community. She had informed himabout her family circumstances. He represented that he was a bachelor and https://hcservices.ecourts.gov.in/hcservices/ made her to believe that he would marry her, thereby asking her to comewith him to some places.

But, since she refused, both of them used to goto house No.875 in Vennampatti Housing Board and have carnal intercourseon several occasions from March,2007. On 14.04.2007, he took her to Mohana Lodge, Krishnagiri, stayed there and had coitus with her. Theyvacated the room in the evening of 15.04.2007. Because of him, she is nowpregnant by two-and-a-half months. The accused refused to marry her anddisconnected her relationship. Therefore, a case has been registered in Crime No.212 of 2007 on the file of respondent police for the offencesunder Sections 376 IPC and Section 3 (1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.3. Learned counsel for the petitioner would vehemently contendthat for employing Section 376 IPC, the complaint does not bear anyallegations and as per the situation of the de facto complainant, namely, her avocation and status i.e., to say, she was a married woman, livingwith children, by no stretch of imagination, it could be stated that shewas sexually exploited by the accused forcibly.

It is his furthercontention that none of the ingredients enumerated in Section 375 IPCwould apply to the facts of the present case and the alleged offence under Section 376 did not exist. It is also his argument that the de factocomplainant gave her free consent for intercourse as per her allegationand there was no obnoxious intention on the part of the accused to spoilher life and, therefore, no offence could be made out under Section 376IPC.4. It is beneficial to refer Section 90 IPC, which reads asunder :"90. Consent known to be given under fear ormisconception.- A consent is not such a consent as isintended by any section of this Code, if the consentis given by a person under fear of injury, or under amisconception of fact, and if the person doing theact knows, or has reason to believe, that the consentwas given in consequence of such fear ormisconception. "5. Learned counsel for the petitioner placed much reliance upona decision of the Hon'ble Supreme Court in State of U.P. throughC.B.I.,S.P.E., Lucknow, v.

R.K.Srivastava and others, AIR 1989 SUPREMECOURT 2222, in which it has been held that it is a well settled principleof law that if the allegations made in the FIR are taken at their facevalue and accepted in their entirety do not constitute an offence, thecriminal proceedings instituted on the basis of such FIR should bequashed. But, the facts in the case on hand are different. In thiscase, the allegations are sufficient to constitute the offence. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel also cited a decision of the SupremeCourt in Uday v. State of Karnataka, 2003 (4) Supreme Court Cases 46,wherein certain guidelines have been formulated, to infer the fact of"consent", which are as below :"For determining whether consent given by theprosecutrix was voluntary or under a misconceptionof fact, held there is no straitjacket formula andeach case has to be decided considering theevidence and surrounding circumstances of the case– where (i) the prosecutrix (aged 19 years on thedate of occurrence) had sufficient intelligence tounderstand the significance and moral quality ofthe act she was consenting to, (ii) she wasconscious of the fact that her marriage with theapplicant was difficult on account of casteconsiderations, (iii) it was difficult to impute tothe appellant knowledge that the prosecutrix hadconsented in consequence of a misconception of factarising from his promise, and (iv) there was noevidence to prove conclusively that the appellantnever intended to marry the prosecutrix, held, appellant's conviction and sentence under S.376 IPCwas liable to be set aside. "

Paragraph 25 of the above said ruling goes to the effect thatin order to constitute the consent under Section 90 IPC, firstly, it mustbe shown that the consent was given under a misconception of fact and, 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 suchmisconception.

As far as the facts of the present case are concerned, we arein the first stage i.e., the consent was given under a misconception offact and the proof is a subsequent affair, since the case has to reach itsstage of trial. It is further observed in the said decision as follows :25....As stated by the prosecutrix, the appellantalso made such a promise on more than one occasion. Insuch circumstances, the promise loses all significance, particularly when they are overcome with emotions andpassion and find themselves in situations andcircumstances where they, in a week moment, succumb tothe temptation of having sexual relationship. This is https://hcservices.ecourts.gov.in/hcservices/ what appears to have happened in this case as well, andthe prosecutrix willingly consented to having sexualintercourse with the appellant with whom she was deeplyin love, not because he promised to marry her, butbecause she also desired it. In these circumstances, it would be very difficult to impute to the appellantknowledge that the prosecutrix had consented inconsequence of a misconception of fact arising from hispromise...."

Another decision in Deelip Singh v. State of Bihar, 2005 (1)Supreme Court Cases 88, was also relied upon by the learned counsel forthe petitioner, in which it was observed as under :"Though will and consent often interlace and anact done against the will of a person can be said to bean act done without consent, the Indian Penal Codecategorises these two expressions under heads in orderto be as comprehensive as possible. Further, it is noteasy to find a dividing line between submission andconsent except in the situation contemplated by clausefifthly of Section 375 IPC. Yet, the evidence has tobe carefully scanned. The ultimate conclusion dependson the facts of each case. "

It is the further contention of the learned counsel for thepetitioner that since the de facto complainant is a full-grown girl, capable of understanding the consequences while she gave consent to thesexual intercourse and became pregnant, the consent obtained from hercould not be deemed to have been obtained by misconception.

In the above judgment, it was opined that even thoughconsent cannot be said to have been obtained under a misconception offact, the Courts have to consider the question of consent, afterappreciating the materials available in a particular case.

In a recent decision of the Supreme Court in Pradeep Kumar @Pradeep Kumar Verma v. State of Bihar and Anr., 2007 (3) Crimes 346 (SC),the scheme of Section 90 IPC has been elaborately dealt with and "whatwould be the consent" obtained from the victim would come under thecategory of "consent obtained by fear or misconception. " The Apex Courtalso considered Uday's case, stated supra, and laid down a law as follows :"20.....By making the solitary observation thata false promise is not a fact within the meaning ofthe Code, it can not be said that this Court has laiddown the law differently. The observations followingthe aforesaid sentence are also equally important. The Court was cautious enough to add a qualification https://hcservices.ecourts.gov.in/hcservices/ that no straitjacket formula could be evolved fordetermining whether the consent was given under amisconception of fact. Reading the judgment in Udaycase as a whole, we do not understand the Courtlaying down a broad proposition that a promise tomarry could never amount to a misconception of fact. That is not, in our understanding, the ratio of thedecision. In fact, there was a specific finding inthat case that initially the accuseds intention tomarry cannot be ruled out. "

Hence, the legal principle to be applied in similar cases isthat the Court has to see whether the person giving the consent has givenit under fear or misconception of fact and the Court should also besatisfied that the person doing the act i.e., the alleged offender isconscious of the fact or should have reason to think that but for the fearor misconception, the consent would not have been given.

As per Section 90 IPC, "consent" must be a voluntary one andit could not be under misconception of fact or misrepresentation or byfraudulent means. Obtaining consent for sexual intercourse on the promiseof marriage should fulfil the requirements, adumbrated in Section 90. Inorder to infer a qualified consent free from any legal flaw, theallegations in the F.I.R.may not be sufficient. Even though the consentwas a voluntary one, if the Court finds that it was obtained bymisconception of fact or misrepresentation, it will suffer fromillegality. The consent or absence of it could be gathered from theattendant circumstances. On the face of it, it is learnt that the accusedknew of the misconception or had reason to believe that the victim wouldact upon it.

As far as the facts of this case are concerned, it is onlyin the F.I.R. stage and investigation is pending. Only if the trialreaches its logical conclusion, the real intention of the accused wouldbe unearthed, by appreciating the materials available in the evidence onrecord.

Learned Government Advocate (Criminal Side) would cite adecision of the Apex Court in Yedla Srinivasa Rao v. State of A.P., 2006(9) SCALE 692, wherein, the Supreme Court, after referring to theprinciples laid down in Uday's case, considering the facts of the case, was satisfied that the consent which had been obtained by the accused wasnot a voluntary one which was given by her under misconception of factthat the accused would marry her, but this is not a consent in law, whichis more evident from the testimony of P.W.1 and P.W.6 who was functioningas Panchayat where the accused admitted that he had committed sexualintercourse and promised to marry her, but he absconded despite thepromise made before the Panchayat, and, hence, the question as to whetherthe consent obtained from the de facto complainant by the accused wasunder misconception of fact has to be decided, only after scanning andanalysing the oral evidence on record. https://hcservices.ecourts.gov.in/hcservices/

In the above said decision, the Apex Court has referred tovarious decisions and concluded as stated above. Following the principlesof law laid down by the Supreme Court, it must be observed herein thatwhether the consent was obtained fraudulently by the accused would bedecided on the merits of the case and on the basis of the allegationsavailable in the F.I.R. Since the allegations in this case have primafacie constituted the offence under Section 376 IPC, there would be noquestion of quashing the F.I.R. at this stage.

Learned counsel for the petitioner further submitted thatthere is no sufficient material on record to implicate the accused, forthe offence under Section 3 (1) (xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.19. In this connection, it is worthwhile to refer to Section 3(1) (xii) of the Act, which reads as under :"being in a position to dominate the will of awoman belonging to a Scheduled Caste or a ScheduledTribe and uses that position to exploit her sexuallyto which she would not have otherwise agreed"

The allegations in the F.I.R. would go to the effect thatthe de facto complainant had already informed the accused of her situationand he also knew about her fully. It goes to show that the accused wasvery well aware that the de facto complainant belonged to Adi-dravidarcommunity. The aforesaid version in the FIR would be a prima faciematerial to show the attitude of the accused, attracting the saidprovision.