The Madras High Court recently comprising of a bench of Justice R. Pongiappan while acquitting a man/accused convicted under Sections 376 of IPC who allegedly promised to marry the victim, however, didn't fulfill the promise observed that Non-resistance from the first time of sexual assault, amounts to pre-consent. (Chinnapandi v. State)
Facts of the case
The accused man and the rape survivor resided in the same village according to reports. They fell in love and were meeting in the evening hours. This continued for a year. The woman then asked the man to marry her. Hearing this, he agreed on the condition of fulfilling his lust.
Following this, the accused forcefully sexually assaulted the woman in 2009. She thereafter became pregnant and requested the accused again to marry her. According to reports, the survivor’s parents also requested the accused’s parent’s to wed the couple but they demanded a dowry of 10 sovereigns of gold and Rupees one lakh. The accused asked the woman to abort the child and refused to marry her.
After this, a Panchayat was called and the survivor was guided to file a police complaint.
The present criminal appeal was filed against the conviction and sentence order of an Additional Sessions Judge cum Mahila Court. The accused was convicted under Section 376 of Indian Penal Code (IPC) and accordingly sentenced to undergo ten years of rigorous imprisonment.
Contention of the Parties
The learned counsel appearing for the appellant contended that the alleged occurrence had happened with the pre-consent given by the victim girl. The evidence given by the victim girl is a tuted one and the same cannot be inspired the confidence of this Court. He further contended that during the relevant point of time, both the accused and the victim girl were regularly met and continued the physical relationship. Therefore, it cannot be held that the evidence of PW1 attracted the ingredients, which are necessary to prove the offence under Section 376 of IPC. According to him, the consent given by the victim girl is the pre-consent and therefore, convicting the first accused is not within the purview of settled law.
The Government Advocate (Crl.side) appearing for the State contended that the evidence given by the victim girl established the fact that during the relevant point of time, the accused after made threatening and also by making the false promise sexually assaulted the victim girl and therefore, the finding arrived at by the trial Court is found correct and therefore, interference of this Court in the finding arrived at by the trial Court does not require.
Courts Observation and Judgment
The Court at the very outset, noted that the victim complained about the act after a lapse of 2½ months from the date of the occurrence and that she had specifically stated before the trial Court that after she fell in love with the accused, they regularly met in the garden and developed their relationship.
The court on this occasion opined, the act of the prosecutrix clearly revealed the fact that she submitted herself on carnal pleasures of accused on the promise of marriage.
The Court further noted that on the date of occurrence, the prosecutrix and the accused/appellant were major and nowhere it was found in the evidence that the appellant had given any definite date or any timeline to marry the prosecutrix.
The court also, noting that the prosecutrix had complained about the issue to others only at the time the appellant has disowned his promise remarked, "The said circumstances reveals the fact that during the relevant point of time, the prosecutrix was also willing and the accused had also promised to marry her once after the completion of his brother's marriage. Acting on such assurance, the prosecutrix started cohabiting with the accused and the same was continued for several months during which period the accused spent most of the evening hours with her. Eventually, when she conceived and insisted that the marriage should be performed as quickly as possible, the appellant suggested for abortion. Since the proposal was not accepted by the prosecutrix, the appellant disowned the promise and ultimately, the case has been registered."
The Court against this backdrop held, "The non-raising the resistance at the time of committing the sexual assault as from first time by the accused, it amounts to pre-consent. Accordingly, the consent given by the victim girl cannot be held as a misconception of fact."
The Court acquitting the accused remarked, "In the light of the above discussions and the reason that the evidence given by PW1 is attracted, in respect to the preparation of complaint as well as in respect to the evidence given by the Doctor, I had a doubt whether the prosecutrix has approached the Police is with full of truth or with false averment. The accused is entitled to avail the benefit now arises as above. Accordingly, the Criminal Appeal is allowed and the conviction and sentence imposed on the appellant/first accused, by the learned Additional Sessions Judge cum Mahila Court, Madurai, in S.C.No.366 of 2011, dated 18.05.2016, is set aside and the appellant/first accused is acquitted of all the charges. The fine amount, if any, paid by him, shall be refunded to him. The appellant/first accused is directed to be released forthwith, unless his presence is required in connection with any other case."
Read Judgment;
source ; .latestlaws.com/
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