Madras High Court: In a criminal appeal filed under Section 374(2) Code of Criminal Procedure, 1973 (‘CrPC’) to set aside the conviction and sentence passed by the Sessions Judge, M. Dhandapani, J. has set aside the conviction and sentence imposed on the convict, and said that the victim is not under any misconception and that the convict cannot be held to have misused the prosecutrix under the pretext of promise of marriage which led to her consent, as she had been a willing party to sexual intercourse multiple times, which denote implied and explicit consent by her. Therefore, the Court held that the act of the convict would not fall within the parameters of rape.
Background:
The convict and the victim had been in love with each other over the last three years. It was alleged that the convict had taken the victim to the fields and after luring her with the promise of marriage, forcefully had a physical relationship with her multiple times. When the victim asked the convict to marry her, he refused to marry her and abused her in offensive and filthy language and had further told that he only wanted to have physical relationship with her.
The Trial Court found the man guilty of the offence under Sections 375 and 376 read with Sections 90 and 417 of the penal Code, 1860 (‘IPC’) and sentenced him to rigorous imprisonment for a period of 10 years together with a fine of Rs.25,000/-, in default to undergo three months simple imprisonment, but no separate imprisonment was imposed on the convict for the offence under Section 417 IPC. The co-accused persons were acquitted of the charges framed against them. The amount to be paid by the convict was ordered to be given to the prosecutrix for her sustenance and further the District Legal Services Authority was directed to take steps for getting necessary aid from the accused and give the same to the victim/prosecutrix for leading her life. Aggrieved by the aforesaid conviction and sentence, the convict has filed the present appeal.
Analysis and Decision:
The Court said that “crimes against women are on the increase in the society. The safety of women in today’s context is in jeopardy and with the outburst of social media, the lures to which the women folk are put into is unquantifiable. But that would not negate the chance of women also being oppressors at times.”
The Court remarked that the Courts, while generally accepts the deposition of women as gospel truth, as they would not come out and depose about, they having been wrongfully utilised, however, also with a microscope analysis of her evidence to find out that innocent men are not subjected to unnecessary persecution.
The Court said that it cannot be lost sight of that under the pretext of false promises, women are wrongly utilised in various acts, including the act of eternal submission to satisfy the carnal and physical desires of the opposite gender, even with their consent and in many cases against their wish, either by sugar coated words or by brute force. But not always, it is only the male who misuse the women folk, but vicious persons belonging to the female folk, do misuse the law to their advantage. Therefore, in cases of such nature, the duty cast on the court is two-fold, not only to see that women are not misused, but equally, the law is not misused against the male folk as well.
The Court said that in the case at hand, even if the act of convict, if held to be true, it will not fall within the four corners of rape, as the sexual intercourse alleged, has been had with the consent of the victim, as she has voluntarily subjected herself. Therefore, the ingredients of Section 375 IPC are not attracted to the case on hand.
After, taking note of Section 90 IPC, the Court said that for the offence under Section 90 IPC against the convict, it is paramount for the prosecution to establish that the convict was aware or had reason to believe that the consent was given by the victim because of fear of injury or misconception of fact. In the absence of the same being established, the offence under Section 375 IPC cannot be said to have been committed, without the fulfilment of the ingredients mentioned under Section 375 IPC.
Concerning the issue of misconception of fact and what would constitute misconception of fact in a case where consent is claimed, the Court referred to Uday v. State of Karnataka, (2003) 4 SCC 46 and said that for application of Section 90 IPC, two conditions must be fulfilled. Firstly, it should 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.
After analysing the evidence of the witnesses, the Court said that there are not only glaring discrepancies and contradictions in the said depositions, but there are interpolations in the evidence of the witnesses. Further, none of the two limbs of Section 90 are fulfilled by the prosecution to prove that the act of the convict falls within the periphery of Section 90 IPC and that the consent given by victim was on misconception of fact.
The Court noted that before the date of the first sexual intercourse of the convict with victim, she was very well aware of the fact that the convict was married. Therefore, such being the case, the misconception of promise of marriage would not be a possibility and the same could not be brought within misconception for victim to misconstrue the same, as the convict was well married at the crucial point of time and, therefore, the promise of marriage could not reach its logical end. Therefore, the Court said that there would have been no misconception on the part of the victim regarding the promise of marriage with convict.
Further, the Court said that, there is no material to infer that the convict knew or believed that the victim was submitting herself to sexual intercourse only on a misconception that the convict will marry her based on the promise made to her.
Therefore, the Court concluded that the victim was a willing and consenting party to the act of sexual intercourse and, therefore, it would not attract Section 375 IPC.
The Court remarked that it is true that every consent to act involves submission, but it by no means follows that a mere submission involves consent. Further, it said that the submission is based on the consent, which is voluntary and given by victim, who was well within her faculties to weigh the pros and cons of such an act, as the said act on 1-12-2019 is not an isolated act, but it had continued for multiple times even according to the victim.
Thus, the Court said that the victim is not under any misconception and that the convict cannot be held to have misused the prosecutrix under the pretext of promise of marriage which led to her consent, as she had been a willing party to sexual intercourse multiple times, which denote implied and explicit consent by her. Therefore, it was held that the act of the convict, as alleged, would not fall within the parameters of rape.
The Court also said that the absence of any resistance and also in the absence of any force or violence being brought on the victim, the sexual act was in pursuance of a consent, which was voluntary and in a free and unconstrained possession of her physical and moral power and, therefore, the act, as alleged would not fall within the contours of rape.
Moreover, concerning the delay in lodging the complaint, the Court said that in cases of this nature, unless it is too enormous, delay in lodging the complaint cannot be the basis to question the bona fide of the complaint. Therefore, the delay in lodging the complaint cannot be put against the prosecution.
[Rahul Gandhi v. State, 2024 SCC OnLine Mad 2538, decided on 21-06-2024]
Advocates who appeared in this case:
For Appellant : Advocate R.Karthik
For Respondents : G.V.Kasthuri, APP
Buy Code of Criminal Procedure, 1973 HERE
Buy Penal Code, 1860 HERE
