' PUBLISHED IN http://judis.nic.in/supremecourt/filename=40457
"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.601 OF 2008
Karthi @ Karthick ...
Appellant
Versus
State Rep. by Inspector of Police, Tamil Nadu ... Respondent
J U D G M E N T
Jagdish Singh Khehar, J.
1. The appellant, Karthi @ Karthick was convicted for the offences
under Sections 376 and 417 of the Indian penal Code, 1860 by the Assistant
Sessions Judge, Virudhunagar in Sessions Case No.119 of 2004 by an order
dated 30.11.2004. The aforesaid conviction was affirmed by the Additional
District and Sessions Judge (Fast Track Court), Virudhunagar, in Criminal
Appeal No.2 of 2005, by an order dated 1.6.2005. The appellant's Revision
Petition (Criminal Revision Case No.439 of 2005) was dismissed by the
Madurai Bench of the Madras High Court on 18.12.2006. The appellant has
approached this Court to assail the orders passed by the Trial Court, the
appellate Court and the Revisional Court.
2. The accusation in the instant controversy was levelled, first of
all, by the prosecutrix Poomari (PW1). At the time of occurrence, she was
aged between 18 to 20 years. She was then a resident of Achampatti. The
prosecutrix Poomari (PW1) had pointed an accusing finger, at the accused-
appellant Karthick. The accused appellant was aged above 20 years at the
time of occurrence. He was also a resident of Achampatti. The accused-
appellant Karthick, besides being a neighbour of the prosecutrix Poomari
(the prosecutrix Poomari (PW1)) also belonged to the same caste as the
prosecutrix.
3. From the factual position emerging from the record of this case,
it appears that the prosecutrix Poomari (PW1) had lost her mother in early
childhood. At the relevant time, therefore, she was living with the family
of her brother Manikannan (PW2) and sister-in-law Pitchumani (PW3), (wife
of Manikannan, PW2). The father of the prosecutrix Poomari (PW1), i.e.,
Muthukaruppa Thevar (PW4) was then, also residing in the same house.
4. The accusation against Karthick, was made on 10.10.2003. The
initiation of the series of occurrences, leading to the filing of the
complaint, had allegedly commenced six months prior thereto. According to
the statement of the prosecutrix Poomari (PW1), the accused-appellant
Karthick used to generally tease her. He also used to ask her to marry
him. On the first date of occurrence, the prosecutrix Poomari (PW1) was
alone in the house. The other family members had gone to the temple. The
accused-appellant Karthick, finding her alone, entered her house. At that
juncture, she was allegedly asleep. The accused-appellant Karthick had
allegedly requested the prosecutrix Poomari (PW1) to allow him to have
sexual intercourse with her. The prosecutrix allegedly refused to consent.
She claims to have told the appellant, that sexual intercourse could only
be had after marriage. Yet, he forced himself on her, after he had gagged
her mouth with his right hand. The accused-appellant Karthick, then
allegedly committed to the prosecutrix Poomari (PW1), that he would marry
her. Consequent upon her refusal to have sexual intercourse with him, the
accused-appellant Karthick allegedly gagged her mouth to prevent her from
raising an alarm. He then, had sexual intercourse with her. He told her
not to reveal the incident to anyone, on the assurance, that he would marry
her. He had allegedly promised her marriage, by placing his hand on her
head. Believing the promise made by the accused-appellant Karthick, the
prosecutrix Poomari (PW1) did not reveal the first occurrence, to anyone.
5. After the first occurrence, the acknowledged factual position is,
that the accused-appellant Karthick and the prosecutrix Poomari (PW1) were
repeatedly engaged in consensual sex at different places. During the
entire interregnum, according to the prosecutrix, the accused-appellant
Karthick swore, that he would marry her.
6. On 5.10.2003, the prosecutrix Poomari had gone to Murugan temple,
Kariapatti in the company of the accused-appellant Karthick. At the
temple, she again requested Karthick to marry her. He, however, refused to
marry her. Consequent upon the refusal, the prosecutrix Poomari (PW1)
allegedly divulge the entire factual position to her brother Manikannan
(PW2), and other family members. Manikannan (PW2), and her father
Muthukaruppa Thevar (PW4) decided to get the matter sorted out through the
village elders. They narrated the relationship between the prosecutrix
Poomari and the accused-appellant Karthick, to a number of village elders
including Veerachamy (PW5), Ramasamy (PW6), Ayyavoo (PW7) and Nagesh (PW8).
7. The village elders then summoned the accused-appellant Karthick.
For settling the dispute, a panchayat was held. The panchayat made efforts
to persuade the accused-appellant Karthick to marry the prosecutrix
Poomari. The accused-appellant Karthick, however, refused to marry Poomari
(PW1). On the refusal of the accused-appellant Karthick to marry the
prosecutrix, the village elders advised her to make a complaint to the
police. The prosecutrix Poomari (PW1), thereupon, lodged a report on
10.10.2003 at 8.00 a.m., with the Inspector of Police, Kariapatti.
8. The accused-appellant Karthick surrendered before the Judicial
Magistrate No.II, Virudhunagar on 5.11.2003.
9. On completion of investigation, a charge-sheet was filed before
the Judicial Magistrate No.II, Virudhunagar. Since charges levelled
against the accused-appellant Karthick related to offences triable by a
Court of Sessions, the matter was committed to the Principal District and
Sessions Court, Virudhunagar at Srivilliputtur. On committal, Sessions
Case No.119 of 2004 was placed before the Assistant Sessions Judge,
Virudhunagar for trial.
10. During the course of the trial, 16 witnesses were examined by the
prosecution, and 12 exhibits were placed on the record of the case. The
statement of the accused appellant Karthick was then recorded under Section
313 of the Code of Criminal Procedure. The accused appellant did not lead
any evidence in his defence, even though he was afforded an opportunity to
do so.
11. With the assistance of learned counsel for the rival parties, we
have gone through the judgments, which are subject matter of challenge at
the hands of the accused-appellant Karthick. We have also been taken
through the statements of certain witnesses specially the statement of the
prosecutrix Poomari (PW1), and that of Dr. K.P.Santhakumari (PW14), i.e.,
the doctor who subjected the prosecutrix Poomari (PW1) to medical
examination. We may, therefore, summarise the sum and substance of the
evidence recorded at the behest of the prosecution before the Trial Court.
(i) The prosecutrix Poomari (PW1) fully reiterated the factual
position recorded by her in her complaint dated 10.10.2003. The statement
of the prosecutrix Poomari (PW1) was fully supported by her brother
Manikannan (PW2) and her father Muthukaruppa (PW4). Despite lengthy cross-
examination, the testimony of the aforesaid witnesses could not be shaken.
(ii) On an ancillary issue connected with the culpability of the
accused-appellant Karthick, the prosecution had examined four village
elders of Alagapuri, namely, Veerachamy (PW5), Ramasamy (PW6), Ayyavoo
(PW7) and Nagesh (PW8). All of the aforesaid witnesses supported the
prosecution version, by reiterating the convening of a panchayat where the
accused-appellant Karthick was summoned. They affirmed the fact that the
accused-appellant Karthick had refused to marry the prosecutrix Poomari
(PW1), when he had appeared before them. The instant aspect of the matter
leads to one interesting inference, namely, that the elders of the village
were convinced, that in view of the relationship between the prosecutrix
Poomari (PW1) and the accused-appellant Karthick, they ought to get
married, and it is therefore, that the accused-appellant Karthick was asked
by the panchayat, to marry the prosecutrix Poomari (PW1). But he refused
to do so. Otherwise, there would have been no question of the panchayat
asking the accused-appellant Karthick to marry the prosecutrix Poomari
(PW1). Since the accused-appellant Karthick did not agree to the proposal
of the elders of the village, they recommended the prosecutrix Poomari
(PW1) to make a complaint to the police. There is nothing incongruous or
discordant in the statements of Veerachamy (PW5), Ramasamy (PW6), Ayyavoo
(PW7) or Nagesh (PW8). None was pointed out during the course of hearing.
Thus, viewed, there can be no doubt that the proceedings during the holding
of the panchayat would constitute strong circumstantial evidence for
drawing an inference in the facts of this case.
(iii) There is another set of relevant witnesses, as well. These
witnesses are allegedly friends of the accused-appellant Karthick, namely,
Chandran (PW9) and Ilangovan (PW10). Chandran (PW9) deposed, that he had
seen the prosecutrix Poomari (PW1) and the accused-appellant Karthick at
the Murugan temple. During this meeting with the prosecutrix Poomari (and
the accused-appellant Karthick), the prosecutrix had told Chandran (PW9)
that the accused-appellant Karthick who had earlier promised to marry her
had now refused to do so, just preceding their meeting at the temple. The
statement of Ilangovan (PW10) was to the same effect. Ilangovan (PW10)
affirmed having seen both the accused-appellant Karthick and the
prosecutrix Poomari (PW1) together on a couple of occasions. He also
deposed, that he had met them at the Murugan temple. At the temple, he was
told by the prosecutrix Poomari (PW1), that the accused-appellant Karthick,
had refused to marry her. In his statement, he acknowledged that she had
also informed him of having had a physical relationship with the accused-
appellant Karthick, on account of the accused-appellant having promised to
marry her. Both Chandran (PW9) and Ilangovan (PW10) had denied the
suggestion put to them during the course of their cross-examination, that
they were deposing falsely. The statements of Chandran (PW9) and Ilangovan
(PW10), who are friends of the accused-appellant Karthick further show,
that they were aware of the relationship between the prosecutrix Poomari
and karthick, and that, the accused-appellant Karthick had retracted from
his promise to marry her, at the Murugan temple.
12. Three sets of statements, the first comprising of the prosecutrix
Poomari (PW1), her brother Manikannan (PW2) and her father Muthukaruppa
Thevar (PW4), read with the statements of the elders of the village, namely
Veerachamy (PW5), Ramasamy (PW6), Ayyavoo (PW7) and Nagesh (PW8), when
examined in conjunction with the statements of two friends of the accused-
appellant Karthick, Chandran (PW9) and Ilangovan (PW10), leave no room for
any doubt that the accused-appellant Karthick in the first instance had
unwilling sexual relationship with the prosecutrix Poomari (PW1). Even
though she had protested and repulsed his physical advances by telling him
that this would be possible only after their marriage. Yet, he forced
himself on her, after gagging her mouth with his right hand. After having
had sexual intercourse with the prosecutrix Poomari, her when she was all
alone in her house, he told her not to reveal the incident to anyone by
assuring her, that he would marry her. He also promised to marry her, by
placing his hand on her head. The relationship between the prosecutrix
Poomari (PW1) and the accused-appellant Karthick is supported by the
circumstantial evidence of the elders of the family of the prosecutrix.
The elders of the family had then approached the village elders, with a
request to amicably resolve the issue. Despite the asking of the elders of
the village, the accused-appellant Karthick declined to marry the
prosecutrix Poomari (PW1). The version of the prosecutrix Poomari (PW1),
is also independently affirmed from the statements of Chandran (PW9) and
Ilangovan (PW10) who deposed in connection with the occurrence at Murugan
temple, during which the accused-appellant Karthick, for the first time
refused to marry the prosecutrix Poomari (PW1). It is in the background of
the aforesaid factual position, that we shall endeavour to determine the
submissions at the behest of the accused-appellant Karthick.
13. First and foremost, the learned counsel for the appellant placed
reliance on the judgment rendered in Uday vs. State of Karnataka, (2003) 4
SCC 46. Relying on the aforesaid judgment, learned counsel for the
appellant invited our attention to the following conclusions drawn therein
:
"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 strait jacket 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 case, 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."
Besides the aforesaid, learned counsel for the appellant also placed
reliance on the decision rendered in Zinder Ali Sheikh vs. State of West
Bengal & Anr., (2009) 3 SCC 761. From the instant judgment learned counsel
placed reliance on the following observations :
"14. There is no effective Cross-Examination to this witness.
One question was asked about her clinical and physical examination. It
was suggested firstly that she had suffered injuries on her private
parts and person. The witness, however, stated that there was no
bleeding injury, meaning thereby, that the injuries were insignificant
considering that she was medically examined after about 6 months. Such
admission is meaningless. Her version regarding rape, however, has
gone unchallenged. She was asked about the workplace and the boys
being there, however, non-disclosure to the boys would only be a
natural behaviour and cannot lead us to the conclusion that she had
consented for the sexual intercourse. There was no reason for the poor
girl to falsely implicate the accused. There is no suggestion of any
love-affair with the accused also. Her version that she was raped by
the accused, goes totally unchallenged. Her version that she was
forcibly caught and a napkin was put inside her mouth before the
accused had committed rape on her, was a little exaggerated, but it
does not demolish her version that she was raped by the accused.
15. PW-2, Moshar SK, in his deposition, had spoken about the
Chandmoni and her father, telling him that Chandmoni was raped by the
accused. He had also spoken about the village meeting, where, it was
decided that the accused should marry Chandmoni. Again, there is no
Cross-Examination of this witness. Of course, this witness had stated
that he had not made any statement to the Police, as he was not
interrogated.
16. Another witness PW-3 Tajem SK (Mallick) also spoke about
the village meeting, which was held at the instance of Markam Ali SK,
father of the prosecuterix. He also claimed that he was not
interrogated by the Police. In his Cross-examination itself, it has
come that there were about 200-250 persons present in the village
meeting, where, it was decided that the accused was guilty.
Based on the observations made by this Court in the aforesaid judgments, it
was the vehement contention of the learned counsel for the appellant, that
each case wherein the allegation of rape is based on the procuring of
consent for sexual intercourse by deceit, has to be determined individually
on the basis of the peculiarities of the case being handled. We shall,
therefore, endeavour to determine the issue in hand on the aforesaid
parameters.
14. The factual submission advanced at the hands of the learned
counsel for the appellant was that the prosecutrix Poomari (PW1) was a
consenting party to the sexual relationship which the accused-appellant
Karthick had with her. That may be so at a subsequent stage, yet it is not
possible for us to accept the instant submission advanced at the hands of
the learned counsel for the appellant for his exculpation.
The facts as
they unfold from the statement of the prosecutrix Poomari (PW1) are, that even before the first act of sexual intercourse,
the accused-appellant
Karthick used to tease her. He also used to tell her, that he wished to marry her.
The fact that he had sexual intercourse with her, when the
prosecutrix Poomari (PW1) was all alone in her house, is not disputed.
The
prosecutrix Poomari (PW1) has confirmed in her deposition, that at the time of the first sexual intercourse with her at her house, the accused- appellant
Karthick had gagged her mouth with his right hand.
He had
promised to marry her, by placing his hand on her head, after having ravaged her.
The subsequent acts of sexual intercourse, were actions of
actively cheating her, by giving her the impression that he would marry her.
The occurrence at the Murugan temple, is of significant importance.
At the temple,
for the first time the accused-appellant Karthick told the
prosecutrix Poomari (PW1), that he would not marry her. The instant factual position has been confirmed by Chandran (PW9) and Ilangovan (PW10).
Despite lengthy cross-examination,
the accused-appellant has not been able
to create any dent in the testimony of the prosecutrix 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. For the
reasons recorded hereinabove, we find no merit in this appeal. The same is
accordingly dismissed.
19. The accused-appellant Karthick was ordered to be released on bail
by this Court vide order dated 4.4.2008. He shall now be taken into
custody, to serve the remaining part of the sentence.
..................................J.
(P. Sathasivam)
..................................J.
(Jagdish Singh Khehar)
New Delhi;
July 1, 2013.
ITEM NO.1B COURT NO.8 SECTION IIA
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 601 OF 2008
KARTHI @ KARTHICK Appellant (s)
VERSUS
STATE REP BY INSP.OF POLICE, TAMIL NADU Respondent(s)
Date:01/07/2013 This Appeal was called on for judgment today.
For Appellant(s)
Mr. K.V. Vijayakumar,Adv.
For Respondent(s) Mr. M. Yogesh Kanna,Adv.
Ms. Sasi Kala,Adv.
Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the
judgment of the Bench comprising Hon'ble Mr. Justice P. Sathasivam and
His Lordship.
The appeal is dismissed in terms of the signed order.
"The accused-appellant Karthick was ordered to be released
on bail by this Court vide order dated 4.4.2008. He shall now be
taken into custody, to serve the remaining part of the sentence."
|(Mahabir Singh) | (Veena Khera) |
| Court Master | Court Master |
(Reportable signed judgment is placed on the file)
-----------------------
14
"REPORTABLE"
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.601 OF 2008
Karthi @ Karthick ...
Appellant
Versus
State Rep. by Inspector of Police, Tamil Nadu ... Respondent
J U D G M E N T
Jagdish Singh Khehar, J.
1. The appellant, Karthi @ Karthick was convicted for the offences
under Sections 376 and 417 of the Indian penal Code, 1860 by the Assistant
Sessions Judge, Virudhunagar in Sessions Case No.119 of 2004 by an order
dated 30.11.2004. The aforesaid conviction was affirmed by the Additional
District and Sessions Judge (Fast Track Court), Virudhunagar, in Criminal
Appeal No.2 of 2005, by an order dated 1.6.2005. The appellant's Revision
Petition (Criminal Revision Case No.439 of 2005) was dismissed by the
Madurai Bench of the Madras High Court on 18.12.2006. The appellant has
approached this Court to assail the orders passed by the Trial Court, the
appellate Court and the Revisional Court.
2. The accusation in the instant controversy was levelled, first of
all, by the prosecutrix Poomari (PW1). At the time of occurrence, she was
aged between 18 to 20 years. She was then a resident of Achampatti. The
prosecutrix Poomari (PW1) had pointed an accusing finger, at the accused-
appellant Karthick. The accused appellant was aged above 20 years at the
time of occurrence. He was also a resident of Achampatti. The accused-
appellant Karthick, besides being a neighbour of the prosecutrix Poomari
(the prosecutrix Poomari (PW1)) also belonged to the same caste as the
prosecutrix.
3. From the factual position emerging from the record of this case,
it appears that the prosecutrix Poomari (PW1) had lost her mother in early
childhood. At the relevant time, therefore, she was living with the family
of her brother Manikannan (PW2) and sister-in-law Pitchumani (PW3), (wife
of Manikannan, PW2). The father of the prosecutrix Poomari (PW1), i.e.,
Muthukaruppa Thevar (PW4) was then, also residing in the same house.
4. The accusation against Karthick, was made on 10.10.2003. The
initiation of the series of occurrences, leading to the filing of the
complaint, had allegedly commenced six months prior thereto. According to
the statement of the prosecutrix Poomari (PW1), the accused-appellant
Karthick used to generally tease her. He also used to ask her to marry
him. On the first date of occurrence, the prosecutrix Poomari (PW1) was
alone in the house. The other family members had gone to the temple. The
accused-appellant Karthick, finding her alone, entered her house. At that
juncture, she was allegedly asleep. The accused-appellant Karthick had
allegedly requested the prosecutrix Poomari (PW1) to allow him to have
sexual intercourse with her. The prosecutrix allegedly refused to consent.
She claims to have told the appellant, that sexual intercourse could only
be had after marriage. Yet, he forced himself on her, after he had gagged
her mouth with his right hand. The accused-appellant Karthick, then
allegedly committed to the prosecutrix Poomari (PW1), that he would marry
her. Consequent upon her refusal to have sexual intercourse with him, the
accused-appellant Karthick allegedly gagged her mouth to prevent her from
raising an alarm. He then, had sexual intercourse with her. He told her
not to reveal the incident to anyone, on the assurance, that he would marry
her. He had allegedly promised her marriage, by placing his hand on her
head. Believing the promise made by the accused-appellant Karthick, the
prosecutrix Poomari (PW1) did not reveal the first occurrence, to anyone.
5. After the first occurrence, the acknowledged factual position is,
that the accused-appellant Karthick and the prosecutrix Poomari (PW1) were
repeatedly engaged in consensual sex at different places. During the
entire interregnum, according to the prosecutrix, the accused-appellant
Karthick swore, that he would marry her.
6. On 5.10.2003, the prosecutrix Poomari had gone to Murugan temple,
Kariapatti in the company of the accused-appellant Karthick. At the
temple, she again requested Karthick to marry her. He, however, refused to
marry her. Consequent upon the refusal, the prosecutrix Poomari (PW1)
allegedly divulge the entire factual position to her brother Manikannan
(PW2), and other family members. Manikannan (PW2), and her father
Muthukaruppa Thevar (PW4) decided to get the matter sorted out through the
village elders. They narrated the relationship between the prosecutrix
Poomari and the accused-appellant Karthick, to a number of village elders
including Veerachamy (PW5), Ramasamy (PW6), Ayyavoo (PW7) and Nagesh (PW8).
7. The village elders then summoned the accused-appellant Karthick.
For settling the dispute, a panchayat was held. The panchayat made efforts
to persuade the accused-appellant Karthick to marry the prosecutrix
Poomari. The accused-appellant Karthick, however, refused to marry Poomari
(PW1). On the refusal of the accused-appellant Karthick to marry the
prosecutrix, the village elders advised her to make a complaint to the
police. The prosecutrix Poomari (PW1), thereupon, lodged a report on
10.10.2003 at 8.00 a.m., with the Inspector of Police, Kariapatti.
8. The accused-appellant Karthick surrendered before the Judicial
Magistrate No.II, Virudhunagar on 5.11.2003.
9. On completion of investigation, a charge-sheet was filed before
the Judicial Magistrate No.II, Virudhunagar. Since charges levelled
against the accused-appellant Karthick related to offences triable by a
Court of Sessions, the matter was committed to the Principal District and
Sessions Court, Virudhunagar at Srivilliputtur. On committal, Sessions
Case No.119 of 2004 was placed before the Assistant Sessions Judge,
Virudhunagar for trial.
10. During the course of the trial, 16 witnesses were examined by the
prosecution, and 12 exhibits were placed on the record of the case. The
statement of the accused appellant Karthick was then recorded under Section
313 of the Code of Criminal Procedure. The accused appellant did not lead
any evidence in his defence, even though he was afforded an opportunity to
do so.
11. With the assistance of learned counsel for the rival parties, we
have gone through the judgments, which are subject matter of challenge at
the hands of the accused-appellant Karthick. We have also been taken
through the statements of certain witnesses specially the statement of the
prosecutrix Poomari (PW1), and that of Dr. K.P.Santhakumari (PW14), i.e.,
the doctor who subjected the prosecutrix Poomari (PW1) to medical
examination. We may, therefore, summarise the sum and substance of the
evidence recorded at the behest of the prosecution before the Trial Court.
(i) The prosecutrix Poomari (PW1) fully reiterated the factual
position recorded by her in her complaint dated 10.10.2003. The statement
of the prosecutrix Poomari (PW1) was fully supported by her brother
Manikannan (PW2) and her father Muthukaruppa (PW4). Despite lengthy cross-
examination, the testimony of the aforesaid witnesses could not be shaken.
(ii) On an ancillary issue connected with the culpability of the
accused-appellant Karthick, the prosecution had examined four village
elders of Alagapuri, namely, Veerachamy (PW5), Ramasamy (PW6), Ayyavoo
(PW7) and Nagesh (PW8). All of the aforesaid witnesses supported the
prosecution version, by reiterating the convening of a panchayat where the
accused-appellant Karthick was summoned. They affirmed the fact that the
accused-appellant Karthick had refused to marry the prosecutrix Poomari
(PW1), when he had appeared before them. The instant aspect of the matter
leads to one interesting inference, namely, that the elders of the village
were convinced, that in view of the relationship between the prosecutrix
Poomari (PW1) and the accused-appellant Karthick, they ought to get
married, and it is therefore, that the accused-appellant Karthick was asked
by the panchayat, to marry the prosecutrix Poomari (PW1). But he refused
to do so. Otherwise, there would have been no question of the panchayat
asking the accused-appellant Karthick to marry the prosecutrix Poomari
(PW1). Since the accused-appellant Karthick did not agree to the proposal
of the elders of the village, they recommended the prosecutrix Poomari
(PW1) to make a complaint to the police. There is nothing incongruous or
discordant in the statements of Veerachamy (PW5), Ramasamy (PW6), Ayyavoo
(PW7) or Nagesh (PW8). None was pointed out during the course of hearing.
Thus, viewed, there can be no doubt that the proceedings during the holding
of the panchayat would constitute strong circumstantial evidence for
drawing an inference in the facts of this case.
(iii) There is another set of relevant witnesses, as well. These
witnesses are allegedly friends of the accused-appellant Karthick, namely,
Chandran (PW9) and Ilangovan (PW10). Chandran (PW9) deposed, that he had
seen the prosecutrix Poomari (PW1) and the accused-appellant Karthick at
the Murugan temple. During this meeting with the prosecutrix Poomari (and
the accused-appellant Karthick), the prosecutrix had told Chandran (PW9)
that the accused-appellant Karthick who had earlier promised to marry her
had now refused to do so, just preceding their meeting at the temple. The
statement of Ilangovan (PW10) was to the same effect. Ilangovan (PW10)
affirmed having seen both the accused-appellant Karthick and the
prosecutrix Poomari (PW1) together on a couple of occasions. He also
deposed, that he had met them at the Murugan temple. At the temple, he was
told by the prosecutrix Poomari (PW1), that the accused-appellant Karthick,
had refused to marry her. In his statement, he acknowledged that she had
also informed him of having had a physical relationship with the accused-
appellant Karthick, on account of the accused-appellant having promised to
marry her. Both Chandran (PW9) and Ilangovan (PW10) had denied the
suggestion put to them during the course of their cross-examination, that
they were deposing falsely. The statements of Chandran (PW9) and Ilangovan
(PW10), who are friends of the accused-appellant Karthick further show,
that they were aware of the relationship between the prosecutrix Poomari
and karthick, and that, the accused-appellant Karthick had retracted from
his promise to marry her, at the Murugan temple.
12. Three sets of statements, the first comprising of the prosecutrix
Poomari (PW1), her brother Manikannan (PW2) and her father Muthukaruppa
Thevar (PW4), read with the statements of the elders of the village, namely
Veerachamy (PW5), Ramasamy (PW6), Ayyavoo (PW7) and Nagesh (PW8), when
examined in conjunction with the statements of two friends of the accused-
appellant Karthick, Chandran (PW9) and Ilangovan (PW10), leave no room for
any doubt that the accused-appellant Karthick in the first instance had
unwilling sexual relationship with the prosecutrix Poomari (PW1). Even
though she had protested and repulsed his physical advances by telling him
that this would be possible only after their marriage. Yet, he forced
himself on her, after gagging her mouth with his right hand. After having
had sexual intercourse with the prosecutrix Poomari, her when she was all
alone in her house, he told her not to reveal the incident to anyone by
assuring her, that he would marry her. He also promised to marry her, by
placing his hand on her head. The relationship between the prosecutrix
Poomari (PW1) and the accused-appellant Karthick is supported by the
circumstantial evidence of the elders of the family of the prosecutrix.
The elders of the family had then approached the village elders, with a
request to amicably resolve the issue. Despite the asking of the elders of
the village, the accused-appellant Karthick declined to marry the
prosecutrix Poomari (PW1). The version of the prosecutrix Poomari (PW1),
is also independently affirmed from the statements of Chandran (PW9) and
Ilangovan (PW10) who deposed in connection with the occurrence at Murugan
temple, during which the accused-appellant Karthick, for the first time
refused to marry the prosecutrix Poomari (PW1). It is in the background of
the aforesaid factual position, that we shall endeavour to determine the
submissions at the behest of the accused-appellant Karthick.
13. First and foremost, the learned counsel for the appellant placed
reliance on the judgment rendered in Uday vs. State of Karnataka, (2003) 4
SCC 46. Relying on the aforesaid judgment, learned counsel for the
appellant invited our attention to the following conclusions drawn therein
:
"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 strait jacket 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 case, 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."
Besides the aforesaid, learned counsel for the appellant also placed
reliance on the decision rendered in Zinder Ali Sheikh vs. State of West
Bengal & Anr., (2009) 3 SCC 761. From the instant judgment learned counsel
placed reliance on the following observations :
"14. There is no effective Cross-Examination to this witness.
One question was asked about her clinical and physical examination. It
was suggested firstly that she had suffered injuries on her private
parts and person. The witness, however, stated that there was no
bleeding injury, meaning thereby, that the injuries were insignificant
considering that she was medically examined after about 6 months. Such
admission is meaningless. Her version regarding rape, however, has
gone unchallenged. She was asked about the workplace and the boys
being there, however, non-disclosure to the boys would only be a
natural behaviour and cannot lead us to the conclusion that she had
consented for the sexual intercourse. There was no reason for the poor
girl to falsely implicate the accused. There is no suggestion of any
love-affair with the accused also. Her version that she was raped by
the accused, goes totally unchallenged. Her version that she was
forcibly caught and a napkin was put inside her mouth before the
accused had committed rape on her, was a little exaggerated, but it
does not demolish her version that she was raped by the accused.
15. PW-2, Moshar SK, in his deposition, had spoken about the
Chandmoni and her father, telling him that Chandmoni was raped by the
accused. He had also spoken about the village meeting, where, it was
decided that the accused should marry Chandmoni. Again, there is no
Cross-Examination of this witness. Of course, this witness had stated
that he had not made any statement to the Police, as he was not
interrogated.
16. Another witness PW-3 Tajem SK (Mallick) also spoke about
the village meeting, which was held at the instance of Markam Ali SK,
father of the prosecuterix. He also claimed that he was not
interrogated by the Police. In his Cross-examination itself, it has
come that there were about 200-250 persons present in the village
meeting, where, it was decided that the accused was guilty.
Based on the observations made by this Court in the aforesaid judgments, it
was the vehement contention of the learned counsel for the appellant, that
each case wherein the allegation of rape is based on the procuring of
consent for sexual intercourse by deceit, has to be determined individually
on the basis of the peculiarities of the case being handled. We shall,
therefore, endeavour to determine the issue in hand on the aforesaid
parameters.
14. The factual submission advanced at the hands of the learned
counsel for the appellant was that the prosecutrix Poomari (PW1) was a
consenting party to the sexual relationship which the accused-appellant
Karthick had with her. That may be so at a subsequent stage, yet it is not
possible for us to accept the instant submission advanced at the hands of
the learned counsel for the appellant for his exculpation.
The facts as
they unfold from the statement of the prosecutrix Poomari (PW1) are, that even before the first act of sexual intercourse,
the accused-appellant
Karthick used to tease her. He also used to tell her, that he wished to marry her.
The fact that he had sexual intercourse with her, when the
prosecutrix Poomari (PW1) was all alone in her house, is not disputed.
The
prosecutrix Poomari (PW1) has confirmed in her deposition, that at the time of the first sexual intercourse with her at her house, the accused- appellant
Karthick had gagged her mouth with his right hand.
He had
promised to marry her, by placing his hand on her head, after having ravaged her.
The subsequent acts of sexual intercourse, were actions of
actively cheating her, by giving her the impression that he would marry her.
The occurrence at the Murugan temple, is of significant importance.
At the temple,
for the first time the accused-appellant Karthick told the
prosecutrix Poomari (PW1), that he would not marry her. The instant factual position has been confirmed by Chandran (PW9) and Ilangovan (PW10).
Despite lengthy cross-examination,
the accused-appellant has not been able
to create any dent in the testimony of the prosecutrix 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. For the
reasons recorded hereinabove, we find no merit in this appeal. The same is
accordingly dismissed.
19. The accused-appellant Karthick was ordered to be released on bail
by this Court vide order dated 4.4.2008. He shall now be taken into
custody, to serve the remaining part of the sentence.
..................................J.
(P. Sathasivam)
..................................J.
(Jagdish Singh Khehar)
New Delhi;
July 1, 2013.
ITEM NO.1B COURT NO.8 SECTION IIA
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 601 OF 2008
KARTHI @ KARTHICK Appellant (s)
VERSUS
STATE REP BY INSP.OF POLICE, TAMIL NADU Respondent(s)
Date:01/07/2013 This Appeal was called on for judgment today.
For Appellant(s)
Mr. K.V. Vijayakumar,Adv.
For Respondent(s) Mr. M. Yogesh Kanna,Adv.
Ms. Sasi Kala,Adv.
Hon'ble Mr. Justice Jagdish Singh Khehar pronounced the
judgment of the Bench comprising Hon'ble Mr. Justice P. Sathasivam and
His Lordship.
The appeal is dismissed in terms of the signed order.
"The accused-appellant Karthick was ordered to be released
on bail by this Court vide order dated 4.4.2008. He shall now be
taken into custody, to serve the remaining part of the sentence."
|(Mahabir Singh) | (Veena Khera) |
| Court Master | Court Master |
(Reportable signed judgment is placed on the file)
-----------------------
14
