V.Kotteeswaran v. The State Rep By

BAIL SLIP The appellant, namely V.Kotteeswaran in Crl.A.No.376 of 2014 (Sole Accused in S.C.No.144 of 2013 on the file of the I Additional District and Sessions Judge, Tindivanam) was released on bail vide order of this court, dated 11/07/2014 and made in Crl.M.P.No.1 of 2014 in Crl.A.376 of 2014.

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 13.03.2020 PRONOUNCED ON : 04.06.2020

CORAM

THE HONOURABLE MR.JUSTICE T.RAVINDRAN Crl.A.No.376 of 2014 V.Kotteeswaran ...Appellant/Accused Vs.

The State Represented by the Inspector of Police Periyathachur Police Station, Villupuram District.

(Crime No.178/2010)

...Respondent/Complainant

Prayer:- This Criminal Appeal has been filed under Section 374 of the Criminal Procedure Code against the judgment dated 18.06.2014 passed in S.C.No.144 of 2013 on the file of the I Additional District and Sessions Court, Tindivanam. For Appellant : Mr.K.Selvakumaraswami For Respondent : Mr.R.Ravichandran (Crl.side) Government Advocate

JUDGMENT

The First Additional District and Sessions Judge, Tindivanam, by judgment dated 18.06.2014 in S.C.No.144 of 2013 convicted the appellant/accused under Section 417 IPC and sentenced him to undergo Rigorous imprisonment for one year and also to pay a fine of Rs.10,000/- in default to undergo Rigorous imprisonment for three months and acquitted him of the offence punishable under Section 376 IPC. Impugning the same, the criminal appeal has been preferred by the appellant/Accused.

2.Briefly stated, according to the prosecution case, the victim girl aged about 20 years and the appellant/accused are the residents of Rettanai Village and one year prior to the giving of the complaint, the victim girl used to go to the house of the accused for doing house hold works and while so, the accused deceived the victim girl, dishonestly induced her by stating that he would marry her and she is his wife and by saying so, it is put forth that he committed sexual intercourse with the victim girl against her will and consent and thus, the accused has committed the offences punishable under Sections 417 & 376 IPC.

3.To sustain the prosecution case, PWs 1 to 12 were examined and Exs.P1 to 9 were marked. No MO has been marked. On the conclusion of the prosecution evidence, the accused was examined under Section 313 Cr.P.Cwith reference to the incriminating evidence tendered against him by the prosecution witnesses and the accused had denied the same and on the side of the accused, no oral and documentary evidence has been adduced and No MO has been marked.

4.The victim girl has been examined as PW1. The Criminal action in the matter has been set in motion based on the complaint lodged by the victim girl marked as Ex.P1. Even as per Ex.P1, it is found that the victim girl was described as having 20 years of age.

Further, the victim girl has not mentioned in the complaint as to when the accused had committed the offence of rape against her will and consent and she would only state that while she was doing house hold works in the house of the accused about one year back, she and the accused moved closely and the accused induced her by stating that she is his wife and so saying, according to the victim girl, the accused had sexual intercourse with her several times and likewise, it is stated by her that the accused had forcibly sexual intercourse with her on several occasions and thereafter, on seeing her vomiting, according to the victim girl, she being questioned by her mother Venniammal PW2, she disclosed the same to her mother and it is further stated that when she and her mother approached the accused and called upon him to marry the victim girl, in as much as the accused had refused to the same, according to the victim girl, she has been forced to lodge the complaint.

As rightly put forth by the accused counsel, the victim girl has not mentioned as to on what date, she had been subjected to forcible sex on the part of the accused and the date of the occurrence itself is not disclosed in the complaint Ex.P1. Very vaguely, it has been mentioned that one year prior to the lodging of the complaintEx.P1 dated 25.05.

on the false promise of marrying her and that she is his wife. However, as rightly contended by the accused counsel, considering the conduct of the victim girl, when she had admitted that she had been having sexual intercourse with the accused on several occasions, however, she would only state that she had acquiesced to the same on the assurance given by the accused that he would marry her and that, she is his wife, however, the free conduct of the victim girl in submitting and subjecting her body to the accused on several occasions without any serious hesitation and misgivings raises the needle of suspicion in the case projected by the victim girl. 5.The entire case of the prosecution merely rests upon the evidence of the victim girl examined as PW1.

During the course of cross examination, the victim girl has admitted that she does not know the contents of the complaint and only the author of the same would know the contents of the complaint and further, admitted that the accused sister Sarasu is her friend and that she used to go to the accused house often and further, she would also admit that she and the accused got associated and closely moved and further would state that the accused had three brothers and all had married, the accused mother is also residing with the accused and his three brothers, are also residing in the same house and further would state that Kuppammal and Kannan are residing nearby and also would state thatVeerappan, Balasubramanian and Ezhumalai are also residing closer and would also state that Veerappan, Balasubramanian and Ezhumalai all knew about the relationship between her and the accused and further, she would only state that on becoming pregnant, she met the accused brother and complained about her pregnancy, however, the accused brother challenged her case and further, she would claim that the female baby, which she had conceived,died about 1 1⁄2 years ago and she had disclosed the birth of the baby to the police during the course of investigation.

Therefore, when as per the evidence of the victim girl, she had been closely moving with the accused often over a considerable period of time and also would admit that she had sexual intercourse with him on several occasions, in such view of the matter, her case that she had subjected herself to the desire of the accused freely on his mere promise of marrying her and that she is his wife, as such, cannot be readily accepted.

6.Furthermore, the Investigation Officer examined as PW11, who had examined the victim girl, has admitted that the victim girl has not mentioned the date and time of the occurrence in the complaint Ex.P1 and further also admitted that the victim girl has not disclosed as to how others had known about her

acquaintance and relationship with the accused and further admitted that various persons are residing nearby to the house of the accused and that, he had not examined them and further, admitted that during his investigation, the victim girl had not stated to him that she used to go to the accused house, on being called by the accused mother and at that point of time, the occurrence had happened.

Further also admitted that the victim girl had not stated to him that she and the accused sister Sarasu had acquaintance and on that score, she had been going to the accused house often and further admitted that the victim girl has not stated to him that the accused had committed rape on her morning and evening, on several times about three years ago and further admitted that the victim girl has not stated to him that the accused had sexual intercourse with her for more than 10 times and further admitted that the victim girl had not stated to him that on becoming pregnant, she had gone to the hospital and further admitted that the victim girl had not stated to him that she had approached the accused brother and requested him to arrange her marriage with the accused and further admitted that PW2 Venniammal knew about the occurrence only on being informed by the victim girl and also would admit that she does not know as to what had happened to the pregnancy of the victim girl.

Therefore, when it is found that the victim girl had not disclosed the investigation officer during the course of investigation that she used to go to the accused house on several occasions, on being called by the accused mother and her acquaintance with the accused sister and thereby, she had moved closely with the accused and further, when she had not disclosed to the investigation officer that the accused had sexual intercourse on several occasions as now put forth during the course of evidence and further, did not disclose that her acquaintance to the accused is known to the others, her evidence, as above pointed out,does not inspire confidence and acceptance in any manner and therefore, it is found that the victim girl had not disclosed anything about the others having knowledge about her relationship with the accused to the investigation officer during the course of investigation as above pointed out and also admitted by PW2 herself, she had come to know about the occurrence only on being apprised about the same by the victim girl.

The Sub-Inspector of Police, who had registered the FIR and also examined as PW9, has also admitted that the victim girl had not disclosed the date and time of the occurrence and only stated that the same had taken place one year prior to the lodging of the complaint. The Medical Officer, who had examined the victim girl and examined as PW7 during the course of her evidence, has stated that on examining the victim girl, she found her to be pregnant and also would state that her hymen was absent and no external injury and her vagina admitted two figures and concluded her examination by holding that the victim girl had already sexual intercourse on several times.

Therefore, from the medical evidence adduced in the matter, it is found that there is no symptom of the victim girl subjected to any forcible sex, but it is only on her own and with her free consent. No doubt, as pointed out, only belatedly the victim girl had been examined by the medical officer, particularly, after she had become pregnant.

7.

Considering the abovesaid factors intoto, when it is found that the victim girl was aged about 20 years at the time of the alleged occurrence and when she has clearly admitted that she has yielded to the sexual intercourse on several occasions and when her case that she had submitted to the sexual intercourse only on the assurance of the accused that he would marry her is found to be unreliable and totally unacceptable and accordingly, it is found that her consent so obtained cannot at all be described as consent obtained by misconception on fact and in such view of the matter, when the conduct of the victim girl shows that she had not resisted the accused in any manner and also found to be having sexual intercourse with him on several occasions as admitted by her and the victim girl is found to be having knowledge about the significance and consequences of the sexual intercourse she had with the accused and accordingly, when she is found to have not shown any resistance to the accused at the time of committing the alleged offence, the same would only disclose that she voluntarily had given consent in having sexual intercourse with the accused and there is no misconception with reference to the same as put forth by her, therefore, the trial Court had rightly come to the conclusion that the victim girl had freely and voluntarily consented to the sexual intercourse with the accused.

Therefore, according to the trial Court, the act of the victim girl is only an act of promiscuity and not an act induced by misconception of fact and after holding that the consent has been given by the victim girl freely, voluntarily and consciously in undergoing sexual intercourse with the accused, the trial Court had rightly held that the prosecution has failed to establish the commission of the offence on the part of the accused punishable under Section 376 IPC and resultantly, acquitted him of the aforesaid offence. 8.

Section 417 IPC. However, as rightly put forth by the accused counsel, when the main offence of rape alleged to have been committed by the accused based on the alleged false promise of marrying the victim girl itself is not made out by the prosecution and consequentially, the accused having been acquitted of the offence under Section 376 IPC, it does not stand to reason as to how the trial Court had proceeded to hold that the accused had given a false promise of marrying the victim girl and that, she would be his wife and accordingly, had forcible sexual intercourse with her.

When according to the trial Court, the act of the victim girl does not come under the misconception of fact with reference to the alleged promise of the accused promising to marry her therefore, when the essential ingredients that the accused had deceived the victim girl frequently or dishonestly and thereby intentionally induced her to subject her body to his sexual desire, the above facts having not been made out by the prosecution, in my considered opinion, the accused cannot be held to have committed the offence of cheating as contemplated under Section 415 IPC. 9.

In this connection, the trial Court seems to have mainly relied upon the FIR and by holding that normally in sexual offence, there would be a delay in the lodging of the FIR due to myriad reasons, particularly, the reluctance of the victim girl and her family members to go to the police complaining about the incident as they same would affect their reputation and honour and on that basis, based on the averments contained in the complaint that the accused had deceived the victim girl on the false promise of marrying her, proceeded to hold that the accused had committed the offence punishable under Section 417 IPC.

10.As rightly put forth by the accused counsel, as to whether the abovesaid facts would constitute the offence of cheating punishable under Section 417 IPC, the apex Court in the decision rendered in Criminal appeal dated 21.08.2019 passed in Crl.A.No.1165 of 2019 (@ SLP (Crl) No.2712 of 2019) (Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr.) had the occasion to go into the question as to what would constitute sexual relations made with the victim girl on the false promise of marrying her and whether her consent given to the acts would only be based on the misconception of facts, the apex Court had analyzed the issues in detail and the same is adverted below for better appreciation of the facts involved in the matter. "14. In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has

observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh, this Court held:

"37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."

Similar observations were made by this Court in Deepak Gulati v State of Haryana ("Deepak Gulati"):

"21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused..."

15. In Yedla Srinivasa Rao v State of Andhra

Pradesh11 the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the court observed:

"10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her.

Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent...."

16.Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of

fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:

"21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.

...

24.Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are

not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."

17. In Uday v State of Karnataka12 the complainant was a college going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The court observed that in these circumstances the accused's promise to marry the complainant was not of immediate relevance to the complainant's decision to engage in sexual intercourse with the accused, which was motivated by other factors:

"25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. 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 such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families.

There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact.

On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night.

It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married..."

18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.

19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to

engage in sexual relations with the accused, but on the promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as follows:

(i) The complainant and the appellant knew each other since 1998 and were intimate since 2004;

(ii) The complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other's houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant; and (iii) The appellant expressed his reservations about marrying the complainant on 31 January 2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015.

The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax.

20. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had

become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 of the IPC has occurred."

11.

punished for the offence punishable under Section 417 IPC. 12.On the same lines with reference to the same proposition of law as outlined by the apex Court above referred to, according to the accused counsel, this Court had also the occasion to consider the same in the judgment rendered in Criminal Appeal No.171 of 2007 (Theerthagiri and two others Vs. State rep.by the Inspector of Police, All Women Police Station, Harur, Lr.No.12/2004) dated 13.10.2015 and the order dated 04.04.2018 passed in Crl.R.C.(MD).No.914 of 2007 (Amali Arockia Selvi Vs. Maria Michael @ Michael and another). The principles of law outlined in the abovesaid decisions are taken into consideration and followed as applicable to the case at hand. 13.

Furthermore, as above pointed out, the victim girl is alleged to have become pregnant due to the act of rape committed by the accused and even on the date of alleging of the complaint, she is stated to be pregnant and the same has been confirmed by the medical officer, accordingly, it is also admitted by the victim girl that she had given birth to a female baby and the same had died, further according to the victim girl, she had disclosed the same to the police during the course of investigation, however, as above pointed out, the Investigation Officer PW11 has testified that his investigation does not disclose as to what had happened to the pregnancy caused to the victim girl.

If the alleged case of the victim girl has any semblance of truth, as rightly put forth, if the victim girl has given delivery of a female child and if the abovesaid birth of the child is only due to the acts of the accused, she would have disclosed the same to the investigation officer and the investigation officer would also have taken steps to take DNA test with reference to the child to ascertain her parentage, however, no such steps has been initiated and directed in the matter. When according to the investigation officer, the birth of the female child to the victim girl has not been disclosed during the course of investigation, it is found that the material facts had been suppressed by the victim girl one way or the other and the abovesaid factor also undermines the truth of the case projected by the victim girl. 14.

favour of the accused, thus, it is found that the presumption of innocence of the accused has not been dislodged by the prosecution by adducing acceptable and reliable evidence, in such view of the matter, I hold that the accused is not guilty of the offence punishable under Section 417 IPC and acquit him thereof.

15. In conclusion, the impugned judgment dated 18.06.2014 passed in S.C.No.144 of 2013 on the file of the The First Additional District and Sessions Judge, Tindivanam, convicting and sentencing the appellant/accused under Section 417 IPC are set aside and the accused is held not guilty of the offence under Section 417 IPC and is acquitted of the same and resultantly, the criminal appeal is allowed. Bail bond, if any, executed by the appellant/A2 shall stand cancelled. Fine amount, if any, paid by the appellant/A2 is ordered to be refunded to him.

Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar sms To 1.The Principal District and Sessions Judge, Villupuram

2. The First Additional District and Sessions Judge, Tindivanam.

3. The Judicial Magistrate No.II, Tindivanam.

4. The Chief Judicial Magistrate, Villupuram.

5. The Inspector of police, Periyathachur Police Station, Villupuram District.

6. The Director General of Police, Mylapore, Chennai 7.The District Collector, Villupuram.

8. The Public Prosecutor, High Court, Madras.

Copy To The Section Officer, Criminal Section, High Court, Madras.

Pre-delivery Judgment made in Crl.A.No.376 of 2014 GJ(CO) KKV/28/07/2020