S.R. Bannurmath, J.
1. This appeal is filed challenging the judgment of conviction dated 3-4-1997 passed by the Principal Sessions Judge, Dharwad, in Sessions Case No. 65 of 1993 convicting the appellant for the offences under Sections 451 and 375 read with 376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for 3 months and a fine of Rs. 5,000/- (for the offence under Section 451 of the Indian Penal Code) and rigorous imprisonment for 3 years and fine of Rs. 10,000/- (for the offence under Section 376 of the Indian Penal Code).
2. The brief facts as per the case of the prosecution are as follows.-
The accused and the victim Smt. Gangawa, P.W. 5 are the residents of Bagadgeri Village in Kalghatigi Taluk. As per the first information Ex.P. 6 lodged by the victim in the year 1991 (one year prior to filing of the complaint Ex.P. 6) taking advantage of the fact of insanity of her mother and absence of her father, P.W. 6, the accused who is her neighbour forcibly entered the house and committed rape on her. According to the complainant, even thereafter on number of occasions, the accused used to visit the house and on the promise of getting married with her he had sexual intercourse with her. Ultimately, she conceived from this illicit relationship and gave birth to a child. According to her, out of fear of the society, she delivered herself secretly and left the newborn child on the pial of the house of one Siddaramappa Saunshi. According to the victim, thereafter, she narrated all these events to her father and then lodged the present complaint as per Ex.P. 6 with the jurisdictional police. On receipt of the complaint, the jurisdictional police registered a case in Crime No. 75 of 1992 for the offences punishable under Sections 451, 376 and 506 of the Indian Penal Code and took up the investigation. During the investigation, the Investigation Officer, P.W. 7 recorded the statement of the witnesses including father of the victim, further statement of the victim herself and the accused was also arrested. The victim and the accused were medically examined. The victim P.W. 5, the accused, and the child were also subjected to DNA Typing test. On
receipt of all the necessary reports and on conclusion of investigation charge-sheet came to be filed.
3. After committal, as the accused denied the charges and claimed to be tried, he was tried in Sessions Case No. 65 of 1993. In order to establish the guilt of the accused, the prosecution examined 8 witnesses, out of whom P.Ws. 1 to 4 are the doctors, P.W. 5 is the victim, P.W. 6 is the father and P.Ws. 7 and 8 are the investigating officers. On appreciation of the entire evidence, the Trial Court found the accused guilty on both the counts and as such convicted and sentenced him as mentioned earlier. Hence, the present appeal.
4. Sri Kulkarni, the learned Counsel for the petitioner vehemently contended that even if the entire case of the prosecution as it is, is accepted, absolutely there is no case made out of either commission of trespass or offence of rape on the victim by the petitioner. Taking me through the entire evidence especially that of P.W. 5, the victim, it is contended that it is apparently a case of illicit affair between P.W. 5 and the accused with consent and cannot be by any stretch of imagination be termed as an offence of rape. He contended that no doubt the DNA test shows that the appellant may be the father of the child alleged to have been bom to P.W. 5 but by that alone, it cannot be held that the child was born out of rape, as time and again the victim herself has admitted that she herself surrendered to the sexual intercourse with the accused. Relying upon the various pronouncements of various High Courts, it is consended that if a woman who is major, surrenders herself or consents for having sexual intercourse under a promise of marriage cannot be treated as offence of rape merely because the person who had sexual intercourse has not married her or committed the breach of promise. On these among other grounds it is contended that the conviction of the appellant by the Trial Court is contrary to law laid down as well as evidence itself and hence, liable to be set aside and accused be acquitted,
5. On the other hand, the learned Additional State Public Prosecutor argued in support of the findings of the Trial Court.
6. Before considering the material evidence on record, it is to be kept in mind the law regarding appreciation of evidence in cases of rape is well-settled in the pronouncement of the Hon’ble Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat . The Apex Court has cautioned the Courts against the adherence to the strict rules of technicalities like delay or necessity of corroboration in the cases of rape like medical evidence. The Apex Court has also warned against the tendency of the Courts to acquit the accused of rape cases merely on the technical grounds of delay in lodging the complaint or non-production of corroborative evidence. It has been made clear that over-importance cannot be given to the minor discrepancies in the evidence of the prosecution unless these discrepancies go to the root of the matter and shake the basic version of entire evidence. The Hon’ble Supreme Court has laid down that “corroboration is not the sine qua non for a conviction in a
rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury”. It further observed that “On principle, the evidence of a victim of sexual assault stands on par with the evidence of an injured witness. Just as a witness who has sustained an injury, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding”. However, the Apex Court also cautioned the Courts to keep in mind while the evidence of such victim especially if she is adult/major. The Apex Court has observed “if the evidence of the victim does not suffer from any basic infirmity and the ‘probabilities factor’ does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be excepted to be forthcoming subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the ‘probabilities factor’ is found to be out of tune”.
7. Keeping in view these well-settled principles let me consider the material evidence OR record.
8. As is disclosed in the first information, Ex.P. 6 as well as the statement of the victim, P.W. 5, in the Court no doubt according to her the first incident of accused having sexual intercourse with her was about one year prior to 1992 (year of complaint). In spite of that she has not lodged any complaint in this regard at earlier point of time. This non-lodging of complaint can be accepted for a moment as it disclosed that she was staying alone with her mentally deranged mother in the house and her father was working at some other place. But what is surprising is even thereafter, her admission of continuing her sexual relationship with the accused till she became pregnant and even thereafter she has not disclosed this aspect to anybody. By looking into her entire evidence though she claims to be uneducated and illiterate, it appears to me, that she is having sufficient intelligence of worldly affairs and events. This can be seen from her own conduct as narrated in her statement. She has stated that after she became pregnant, she started hiding the pregnancy from everybody by wearing loose cloths and in fact her level of understanding and intelligence can be seen from her admission that she was capable of delivering herself without the assistance of anybody. This in my view would be doubtful as to whether such thing is possible, if she is really as innocent and simpleton as she claims. In my view, it would not have been possible for her to conceal her pregnancy for all the nine months from the village people. It is also to be noted that as per the test including radiological test as spoken by the doctors, P.W. 2, Dr. K Srikanta, the probable age of P.W. 5-Gangawa was between 16 to 18 years. There is no contra indicating material produced by the investigating team to show that the girl was definitely below 16 years or a minor. This practically eliminates the commission of
offence under Section 375(6)(3). In this regard, it is contended that as even thereafter accused had sexual intercourse with her and as such the offence may fall under any of the clauses viz., thirdly, fourthly or fifthly to Section 375 of the Indian Penal Code. It is to be noted that it is not the case of the victim/prosecution that her consent has been obtained by putting her or any other person in fear of death nor is the case that she gave her consent because she believed that accused is another man to whom she is or believes herself to be lawfully married. Definitely it is not the case of the prosecution or the statement of the victim that she had given her consent by reason of either unsoundness of mind or intoxication or administration by the accused of any substance unabling her to understand the nature and consequence. As such the case does not fall under these three clauses.
9. As is clear from her statement in Court, she has submitted herself to the accused for sexual intercourse on number of occasions alleged to be on the belief or hope that he will marry her. In such circumstances, the question would be whether the fact that accused induced the girl to submit herself to sexual intercourse only on the assurance of the marriage and if he does not marry her and commits breach of such promise, can it be said that he has committed an offence of rape or not? At this stage itself, it is to be noted that the complaint of rape has been filed almost one year later of the incident of submission of herself to the sexual intercourse to the accused, that too after few months of her alleged secret delivery of a child. Since the age of the victim is established by the prosecution itself through the evidence of various doctors including the Radiologist, P.W. 2 that she was between 16 to 18 years on the date and no doubt this determination of age factor is subject to marginal benefit of plus or minus of two years. In my view this marginal benefit must go in favour of the accused in the absence of sufficient positive material evidence to show that the girl was below 16 years and as such it has to be held that the girl was of above 16 years and she had consented to have sexual intercourse with the accused not once but on many occasions practically for a period of one year.
10. Since her consent was not on the grounds as enumerated under clauses thirdly, fourthly and fifthly, what is to be seen is whether the failure to keep the promise of marrying and the admitted fact that on the basis of the promise the victim surrendered herself to the sexual intercourse with the accused is sufficient to bring the case within the purview of commission of offence of rape under Section 376 of the Indian Penal Code.
11. Since the offence under Section 376 of the Indian Penal Code is a heinous crime and punishment is also very severe, strict construction as to the application of the provision in regard to commission of offence is to be construed. Time and again, the Courts have laid down that merely because the offence is alleged as heinous, straightaway it need not be ended in conclusion that the accused was responsible for the offence. As noted earlier in the very first information submitted by the victim, it is stated thus:
As noted the entire illicit affair between the complainant and the accused has taken place almost for a period of one year or so. She has specifically admitted that she succumbed to his demands of physical pleasure only on the ground of his promise to marry. This shows that she was voluntarily, and with consent, having sexual pleasures with the accused, almost for a period of 6 months without any interruption or complaint to anybody. What is surprising is even thereafter when she became pregnant due to this affair, she did not complain to anybody much less to her father and in fact, as he admits she tried to hide the pregnancy by wearing loose cloths. Even after becoming pregnant she has not complained to anybody about the incident. The act of keeping quiet for such a long period even when the pregnancy was apparent will clearly indicate that the complainant victim did not take the matter seriously and possibly because she had volunteered and consented for the affair. After the gestation period was over, even then she says that she did not inform anybody and in fact admits that she attended herself to giving birth of the child and thereafter went to the extent of saying and admitting that she left the child on the pial of the house of one Shidramappa Saunshi and did nothing thereafter. This conduct as is apparent from the first information as well as evidence before the Court, clearly indicate that all along she was a consenting party and may be her consent was possibly with a fond hope that the accused would marry her. As noted under Section 375 of the Indian Penal Code, even a consent is not a defence, only when the consent obtained is out of fear of death or when she was made to believe that the accused is already married to her or while her mental condition was of unsound nature or affected by intoxication, etc., and she was unable to understand the nature of consequences of giving such consent. Taking into consideration
based on promise of marriage does not bring the act of sexual intercourse of the accused with the victim under the definition of rape as defined under Section 375 of the Indian Penal Code. None of the witnesses including the neighbour or the father have suspected as to the physical changes observed in the victim due to the alleged pregnancy. This is possible only in case of clever handling of situation by the complainant herself as is admitted in her evidence. Again if we refer to Section 90 of the Indian Penal Code, similar provisions akin to clauses thirdly, fourthly, fifthly are found. It has been interpreted that if the case falls under any of the clauses, it is not consent at all. Conversely if the consent does not fall under any of the categories, either under Section 90 or clauses thirdly, fourthly and fifthly of Section 395, I am of the view that if the victim is grown up, adult person and her consent is not because of any reasons as stated in the provision but only based on alleged promise, it cannot be held that the accused committed the offence of rape. What is striking is if really she had been misled by the assurance of marriage by the accused who has visited her house on many occasions and which promise is not fulfilled, why should she keep it a secret from her father. Assuming that initially she had believed the accused, when he held out the promise and she consented for the sexual intercourse, there is no material to show that the accused had no intention of keeping the promise. It may be that subsequently when the girl conceived, the accused might have felt otherwise. Even then, it cannot be said that mere breach of promise to marry, the accused is guilty of offence of rape for which complainant herself is a consenting party. The failure to keep promise at a future uncertain date due to the reasons not very clear on the evidence, does not mean to misconception of fact on the inception of the act itself as required under Section 90 of the Indian Penal Code. Hence, in my view if a full grown girl, major or adult consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity till she becomes pregnant and in the present case even after the delivery of a child, it is only an act of promiscuity on her part and this voluntary consenting act of the victim cannot fasten any liability of commission of rape on the accused.
12. Taking into consideration these aspects and after bestowing my attention in detail, I am of the view that as the victim was a consenting party though possibly on the basis of alleged promise of marriage by no stretch of imagination, the act of having sexual intercourse by the accused can be brought under the offence of rape as defined under Section 375 of the Indian Penal Code, punishable under Section 376 of the Indian Penal Code. Similar is the view taken by Calcutta High Court in the case of Hari Majhi v. State 1990 Cri. L.J. 650 (Cal.), M.C. Prasannan v. State 1999 Cri. L.J. 998, and this Court in the case of State by Adugodi Police Station, Bangalore v Anthonidas 2000(1) Kar. L.J. Sh.N. 26 : ILR 2000 Kar. 266. In my view, without considering this basic aspect the Trial Court has erroneously held that the offence of rape punishable under Section 376
of the Indian Penal Code has been proved against the accused. As the conclusion arrived at by the Trial Court is based on wrong interpretation of section of rape as defined under Section 375 of the Indian Penal Code road with Section 90 of the Indian Penal Code, the conviction is liable to be set aside and the accused is to be acquitted of the charge of rape made against him.
13. Insofar as offence under Section 451 is concerned, since there is no evidence as to house trespassing by the accused and in fact what appears from the record is that he was permitted to come inside the ‘ house with the consent of the victim herself, even that offence cannot be made out against the petitioner.
14. In the result, the appeal is allowed, the judgment of conviction and sentence passed by the Principal Sessions Judge, Dharwad in Sessions Case No. 65 of 1993, dated 3-4-1997 is hereby set aside and the accused is acquitted of all the charges.
15. Before parting with the judgment, it is to be noted that accused has been imposed a fine of Rs. 10,000/- and as there was no stay granted while admitting his appeal and it is submitted by the Counsel that the amount has been deposited and as per the direction of the Trial Court it is paid to the victim. Normally, the Court in view of the acquittal of the accused would have set aside the order of payment of fine ordering refund of the same, but taking into consideration the DNA test which positively establishes the paternity of the child and as the money has been paid to the victim by the accused, I do not wish to recall the payment order and the fine amount paid can be treated as a compensation for the misadventure of the appellant possibly due to his young age. As the petitioner is on bail, the bail bond stands cancelled.
16. Accordingly, this criminal appeal is disposed off.