{"id":128593,"date":"2007-10-08T00:00:00","date_gmt":"2007-10-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-suresh-vs-state-on-8-october-2007"},"modified":"2015-05-01T06:46:57","modified_gmt":"2015-05-01T01:16:57","slug":"s-suresh-vs-state-on-8-october-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-suresh-vs-state-on-8-october-2007","title":{"rendered":"S.Suresh vs State on 8 October, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
S.Suresh vs State on 8 October, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n           IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\n                    DATED :  08\/10\/2007\n\n                           CORAM\n\n          THE HONOURABLE MR. JUSTICE S. PALANIVELU\n\n                  Crl. O.P. No.28080 of 2007\n\n\n\nS.Suresh                 \t\t..Petitioner\n\n       Vs\n\nState\nrepresented by Inspector of Police\nKadathur Police Station\nDharmapuri District.          \t\t..Respondent\n\n\n\n\n          Petition under Section 482 of the Code of Criminal\nProcedure.\n\n\n\n         \tFor Petitioner    :  Mr.M.Ravi\n\n          \tFor Respondent    :  Mr.A. Saravanan, Govt.  Advocate (Crl. Side)\n\n\n                          O R D E R\n<\/pre>\n
           This  petition  has been filed to  call  for  the<\/p>\n
records in connection with F.I.R.No.212 of 2007 on the  file<\/p>\n
of  Kadathur  Police, Station, Dharmapuri District,  and  to<\/p>\n
quash the same.\n<\/p>\n<\/p>\n
           2.  De facto complainant is a married woman,  who<\/p>\n
has got twin boys, aged three years, and a daughter.  She is<\/p>\n
living   away   from  her  husband,  in  view   of   certain<\/p>\n
misunderstandings. Sons are with her husband, while  she  is<\/p>\n
maintaining  the daughter.  She is working as a  teacher  in<\/p>\n
Panchayat Union Elementary School in Veppilaipatti  village.<\/p>\n
She  used  to  attend the teachers’ meeting every  month  in<\/p>\n
Thalanattam Panchayat Union Middle School. The accused,  who<\/p>\n
too  is  a  teacher in Panchayat Union Elementary School  in<\/p>\n
Nattamedu,  also used to participate in the  said  meetings.<\/p>\n
He  voluntarily began to get familiarity with her.  While he<\/p>\n
is  a  brahmin, she belongs to Adi-dravidar community.   She<\/p>\n
had  informed  him  about  her  family  circumstances.    He<\/p>\n
represented that he was a bachelor and made her  to  believe<\/p>\n
that he would marry her, thereby asking her to come with him<\/p>\n
to  some places.  But, since she refused, both of them  used<\/p>\n
to  go to house No.875 in Vennampatti Housing Board and have<\/p>\n
carnal intercourse on several occasions from March,2007.  On<\/p>\n
14.04.2007, he took her to Mohana Lodge, Krishnagiri, stayed<\/p>\n
there and had coitus with her.  They vacated the room in the<\/p>\n
evening  of 15.04.2007.  Because of him, she is now pregnant<\/p>\n
by  two-and-a-half months. The accused refused to marry  her<\/p>\n
and  disconnected her relationship. Therefore,  a  case  has<\/p>\n
been  registered  in Crime No.212 of 2007  on  the  file  of<\/p>\n
respondent  police for the offences under Sections  376  IPC<\/p>\n
and  Section  3  (1)  (xii)  of  the  Scheduled  Castes  and<\/p>\n
Scheduled Tribes (Prevention of Atrocities) Act.<\/p>\n
           3.  Learned  counsel  for  the  petitioner  would<\/p>\n
vehemently contend that for employing Section 376  IPC,  the<\/p>\n
complaint  does  not bear any allegations  and  as  per  the<\/p>\n
situation of the de facto complainant, namely, her avocation<\/p>\n
and  status  i.e., to say, she was a married  woman,  living<\/p>\n
with  children, by no stretch of imagination,  it  could  be<\/p>\n
stated  that  she  was  sexually exploited  by  the  accused<\/p>\n
forcibly.   It is his further contention that  none  of  the<\/p>\n
ingredients  enumerated in Section 375 IPC  would  apply  to<\/p>\n
the  facts of the present case and the alleged offence under<\/p>\n
Section 376 did not exist. It is also his argument that  the<\/p>\n
de  facto  complainant gave her free consent for intercourse<\/p>\n
as  per  her allegation and there was no obnoxious intention<\/p>\n
on the part of the accused to spoil her life and, therefore,<\/p>\n
no offence could be made out under Section 376 IPC.<\/p>\n
          4. It is beneficial to refer Section 90 IPC, which<\/p>\n
reads as under :\n<\/p>\n<\/p>\n
               “90.Consent known  to  be  given
\n         under   fear   or  misconception.-   A
\n         consent  is not such a consent  as  is
\n         intended by any section of this  Code,
\n         if  the  consent is given by a  person
\n         under  fear  of  injury,  or  under  a
\n         misconception  of  fact,  and  if  the
\n         person  doing  the act knows,  or  has
\n         reason  to  believe, that the  consent
\n         was  given in consequence of such fear
\n         or misconception.”<\/p><\/blockquote>\n
           5. Learned counsel for the petitioner placed much<\/p>\n
reliance  upon  a decision of the Hon’ble Supreme  Court  in<\/p>\n
State   of   U.P.   through   C.B.I.,S.P.E.,   Lucknow,   v.<\/p>\n
R.K.Srivastava and others<\/a>, AIR 1989 SUPREME COURT  2222,  in<\/p>\n
which  it  has been held that it is a well settled principle<\/p>\n
of  law that if the allegations made in the FIR are taken at<\/p>\n
their  face  value  and accepted in their  entirety  do  not<\/p>\n
constitute  an offence, the criminal proceedings  instituted<\/p>\n
on the basis of such FIR should be quashed.   But, the facts<\/p>\n
in  the  case  on  hand are different.  In  this  case,  the<\/p>\n
allegations are sufficient to constitute the offence.<\/p>\n
           6.  The learned counsel also cited a decision  of<\/p>\n
the  Supreme Court in Uday v. State of Karnataka,<\/a>  2003  (4)<\/p>\n
Supreme Court Cases 46, wherein certain guidelines have been<\/p>\n
formulated,  to infer the fact of “consent”,  which  are  as<\/p>\n
below :\n<\/p>\n<\/p>\n
                  “For   determining   whether
\n          consent given by the prosecutrix was
\n          voluntary  or  under a misconception
\n          of    fact,   held   there   is   no
\n          straitjacket formula and  each  case
\n          has  to  be decided considering  the
\n          evidence       and       surrounding
\n          circumstances of the  case  –  where\n<\/p><\/blockquote>\n
          (i)  the prosecutrix (aged 19  years
\n          on   the  date  of  occurrence)  had
\n          sufficient      intelligence      to
\n          understand   the  significance   and
\n          moral  quality of the  act  she  was
\n          consenting   to,   (ii)   she    was
\n          conscious  of  the  fact  that   her
\n          marriage  with  the  applicant   was
\n          difficult   on  account   of   caste
\n          considerations,   (iii)    it    was
\n          difficult to impute to the appellant
\n          knowledge  that the prosecutrix  had
\n          consented   in  consequence   of   a
\n          misconception of fact  arising  from
\n          his  promise, and (iv) there was  no
\n          evidence to prove conclusively  that
\n          the  appellant  never  intended   to
\n          marry    the   prosecutrix,    held,
\n          appellant’s conviction and  sentence
\n          under S.376 IPC was liable to be set
\n          aside.”<\/p><\/blockquote>\n
           7. Paragraph 25 of the above said ruling goes  to<\/p>\n
the  effect  that in order to constitute the  consent  under<\/p>\n
Section  90 IPC, firstly, it must be shown that the  consent<\/p>\n
was  given  under a misconception of fact and, secondly,  it<\/p>\n
must  be  proved  that the person who obtained  the  consent<\/p>\n
knew, or had reason to believe that the consent was given in<\/p>\n
consequence of such misconception.\n<\/p>\n<\/p>\n
           8.  As  far as the facts of the present case  are<\/p>\n
concerned,  we are in the first stage i.e., the consent  was<\/p>\n
given  under  a  misconception of fact and the  proof  is  a<\/p>\n
subsequent affair, since the case has to reach its stage  of<\/p>\n
trial.   It  is  further observed in the  said  decision  as<\/p>\n
follows :\n<\/p>\n<\/p>\n
               25….As stated by the prosecutrix,
\n          the  appellant also made such a  promise
\n          on  more  than  one occasion.   In  such
\n          circumstances,  the  promise  loses  all
\n          significance, particularly when they are
\n          overcome  with emotions and passion  and
\n          find   themselves  in   situations   and
\n          circumstances  where  they,  in  a  week
\n          moment,  succumb  to the  temptation  of
\n          having sexual relationship. This is what
\n          appears to have happened in this case as
\n          well,   and  the  prosecutrix  willingly
\n          consented  to having sexual  intercourse
\n          with  the  appellant with whom  she  was
\n          deeply  in love, not because he promised
\n          to  marry  her,  but  because  she  also
\n          desired it.  In these circumstances,  it
\n          would be very difficult to impute to the
\n          appellant knowledge that the prosecutrix
\n          had   consented  in  consequence  of   a
\n          misconception of fact arising  from  his
\n          promise….”<\/p><\/blockquote>\n
           9.  Another decision in Deelip Singh v. State  of<\/p>\n
Bihar, 2005 (1) Supreme Court Cases 88, was also relied upon<\/p>\n
by  the learned counsel for the petitioner, in which it  was<\/p>\n
observed as under :\n<\/p>\n
                “Though  will  and  consent  often
\n         interlace  and  an act done  against  the
\n         will  of  a person can be said to  be  an
\n         act  done  without  consent,  the  Indian
\n         Penal   Code   categorises   these    two
\n         expressions  under heads in order  to  be
\n         as  comprehensive as possible.   Further,
\n         it  is  not easy to find a dividing  line
\n         between submission and consent except  in
\n         the   situation  contemplated  by  clause
\n         fifthly  of  Section 375 IPC.   Yet,  the
\n         evidence  has  to  be carefully  scanned.
\n         The  ultimate conclusion depends  on  the
\n         facts of each case.”<\/p><\/blockquote>\n
           10.  It  is the further contention of the learned<\/p>\n
counsel   for  the  petitioner  that  since  the  de   facto<\/p>\n
complainant  is a full-grown girl, capable of  understanding<\/p>\n
the  consequences  while  she gave  consent  to  the  sexual<\/p>\n
intercourse  and became pregnant, the consent obtained  from<\/p>\n
her   could   not  be  deemed  to  have  been  obtained   by<\/p>\n
misconception.\n<\/p>\n<\/p>\n
          11. In the above judgment, it was opined that even<\/p>\n
though consent cannot be said to have been obtained under  a<\/p>\n
misconception  of  fact, the Courts  have  to  consider  the<\/p>\n
question   of  consent,  after  appreciating  the  materials<\/p>\n
available in a particular case.\n<\/p>\n<\/p>\n
           12. In a recent decision of the Supreme Court  in<\/p>\n
Pradeep  Kumar @ Pradeep Kumar Verma v. State of  Bihar  and<\/p>\n
Anr., 2007 (3) Crimes 346 (SC), the scheme of Section 90 IPC<\/p>\n
has  been  elaborately dealt with and  “what  would  be  the<\/p>\n
consent”  obtained  from the victim  would  come  under  the<\/p>\n
category of “consent obtained by fear or misconception.” The<\/p>\n
Apex  Court  also considered Uday’s case, stated supra,  and<\/p>\n
laid down a law as follows :\n<\/p>\n<\/p>\n
                “20…..By  making the  solitary
\n          observation  that a false  promise  is
\n          not  a fact within the meaning of  the
\n          Code,  it  can not be said  that  this
\n          Court   has   laid   down   the    law
\n          differently.      The     observations
\n          following  the aforesaid sentence  are
\n          also equally important.  The Court was
\n          cautious enough to add a qualification
\n          that no straitjacket formula could  be
\n          evolved  for determining  whether  the
\n          consent    was    given    under     a
\n          misconception  of fact.   Reading  the
\n          judgment  in Uday case as a whole,  we
\n          do  not  understand the  Court  laying
\n          down   a  broad  proposition  that   a
\n          promise to marry could never amount to
\n          a misconception of fact.  That is not,
\n          in our understanding, the ratio of the
\n          decision.   In  fact,  there   was   a
\n          specific  finding in  that  case  that
\n          initially  the accuseds  intention  to
\n          marry cannot be ruled out.”<\/p><\/blockquote>\n
           13.  Hence, the legal principle to be applied  in<\/p>\n
similar  cases  is  that the Court has to  see  whether  the<\/p>\n
person  giving  the  consent has  given  it  under  fear  or<\/p>\n
misconception of fact and the Court should also be satisfied<\/p>\n
that the person doing the act i.e., the alleged offender  is<\/p>\n
conscious  of the fact or should have reason to  think  that<\/p>\n
but  for  the fear or misconception, the consent  would  not<\/p>\n
have been given.\n<\/p>\n<\/p>\n
           14.  As per Section 90 IPC, “consent” must  be  a<\/p>\n
voluntary  one  and it could not be under  misconception  of<\/p>\n
fact  or misrepresentation or by fraudulent means. Obtaining<\/p>\n
consent  for  sexual intercourse on the promise of  marriage<\/p>\n
should  fulfil the requirements, adumbrated in  Section  90.<\/p>\n
In  order  to infer a qualified consent free from any  legal<\/p>\n
flaw,  the  allegations in the F.I.R.may not be  sufficient.<\/p>\n
Even  though the consent was a voluntary one, if  the  Court<\/p>\n
finds  that  it  was obtained by misconception  of  fact  or<\/p>\n
misrepresentation,  it will suffer  from  illegality.    The<\/p>\n
consent  or  absence  of  it  could  be  gathered  from  the<\/p>\n
attendant  circumstances.  On the face of it, it  is  learnt<\/p>\n
that the accused knew of the misconception or had reason  to<\/p>\n
believe that the victim would act upon it.<\/p>\n
           15.  As  far  as  the  facts  of  this  case  are<\/p>\n
concerned,  it is only in the F.I.R. stage and investigation<\/p>\n
is   pending.   Only  if  the  trial  reaches  its   logical<\/p>\n
conclusion,   the  real intention of the  accused  would  be<\/p>\n
unearthed,  by appreciating the materials available  in  the<\/p>\n
evidence on record.\n<\/p>\n<\/p>\n
           16.  Learned Government Advocate (Criminal  Side)<\/p>\n
would  cite a decision of the Apex Court in Yedla  Srinivasa<\/p>\n
Rao  v.  State  of  A.P.,<\/a> 2006 (9) SCALE 692,  wherein,  the<\/p>\n
Supreme  Court, after referring to the principles laid  down<\/p>\n
in  Uday’s  case,  considering the facts of  the  case,  was<\/p>\n
satisfied  that the consent which had been obtained  by  the<\/p>\n
accused was not a voluntary one which was given by her under<\/p>\n
misconception of fact that the accused would marry her,  but<\/p>\n
this is not a consent in law, which is more evident from the<\/p>\n
testimony  of  P.W.1  and  P.W.6  who  was  functioning   as<\/p>\n
Panchayat  where the accused admitted that he had  committed<\/p>\n
sexual  intercourse  and  promised  to  marry  her,  but  he<\/p>\n
absconded  despite  the promise made before  the  Panchayat,<\/p>\n
and,  hence, the question as to whether the consent obtained<\/p>\n
from  the  de  facto  complainant by the accused  was  under<\/p>\n
misconception of fact has to be decided, only after scanning<\/p>\n
and analysing the oral evidence on record.<\/p>\n
          17. In the above said decision, the Apex Court has<\/p>\n
referred to various decisions and concluded as stated above.<\/p>\n
Following  the  principles of law laid down by  the  Supreme<\/p>\n
Court,  it must be observed herein that whether the  consent<\/p>\n
was obtained fraudulently by the accused would be decided on<\/p>\n
the  merits  of the case and on the basis of the allegations<\/p>\n
available in the F.I.R.  Since the allegations in this  case<\/p>\n
have  prima facie constituted the offence under Section  376<\/p>\n
IPC,  there would be no question of quashing the  F.I.R.  at<\/p>\n
this stage.\n<\/p>\n<\/p>\n
           18.  Learned  counsel for the petitioner  further<\/p>\n
submitted that there is no sufficient material on record  to<\/p>\n
implicate the accused, for the offence under Section  3  (1)<\/p>\n
(xii)   of   the  Scheduled  Castes  and  Scheduled   Tribes<\/p>\n
(Prevention of Atrocities) Act.\n<\/p>\n<\/p>\n
           19. In this connection, it is worthwhile to refer<\/p>\n
to Section 3 (1) (xii) of the Act, which reads as under :<\/p>\n
               “being  in a position to dominate
\n         the  will  of  a woman belonging  to  a
\n         Scheduled  Caste  or a Scheduled  Tribe
\n         and  uses that position to exploit  her
\n         sexually  to which she would  not  have
\n         otherwise agreed”<\/p><\/blockquote>\n
           20. The allegations in the F.I.R. would go to the<\/p>\n
effect  that  the de facto complainant had already  informed<\/p>\n
the  accused  of  her situation and he also knew  about  her<\/p>\n
fully.  It goes to show that the accused was very well aware<\/p>\n
that  the  de  facto  complainant belonged  to  Adi-dravidar<\/p>\n
community.   The  aforesaid version in the FIR  would  be  a<\/p>\n
prima  facie  material to show the attitude of the  accused,<\/p>\n
attracting the said provision.\n<\/p>\n<\/p>\n
           21.  In  the  light of the above discussions  and<\/p>\n
following  the ratio laid own by the Apex Court, the  F.I.R.<\/p>\n
could  not  be  quashed.   As  a result,  this  petition  is<\/p>\n
dismissed.  Consequently, the connected Crl.M.P.No.1 of 2007<\/p>\n
is also dismissed.\n<\/p>\n
dixit<\/p>\n
To<\/p>\n
1. The Inspector of Police,
\n   Kadathur Police Station,
\n   Dharmapuri District.\n<\/p>\n
2. The Public Prosecutor,
\n   High Court,
\n   Madras.<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court S.Suresh vs State on 8 October, 2007 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08\/10\/2007 CORAM THE HONOURABLE MR. JUSTICE S. PALANIVELU Crl. O.P. No.28080 of 2007 S.Suresh ..Petitioner Vs State represented by Inspector of Police Kadathur Police Station Dharmapuri District. ..Respondent Petition under Section 482 of the Code […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-128593","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nS.Suresh vs State on 8 October, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/s-suresh-vs-state-on-8-october-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"S.Suresh vs State on 8 October, 2007 - 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