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SeX with Consent or Rape – Explained







Pinaki Chandra Ghose, J.

This interest by special leave has been destined opposite a visualisation and sequence antiquated 9.11.2009 upheld by a High Court of Karnataka during Bangalore in Criminal Appeal No.1576 of 2007, whereby a High Court authorised a rapist interest filed by a respondent herein and clear him of a corruption underneath Section 376 of a Indian Penal Code, 1860 (hereinafter referred to as “IPC”).

The brief contribution required to dispose of this interest are that a prosecutrix (PW1), daughter of one Lakshmana (PW2), aged about 14 years, was study in 8th customary in Swami Vivekanand School during Hiriyur Town, District Chitradurga. The respondent F. Nataraj was a clergyman in a pronounced propagandize and a prosecutrix fell in adore with him. When she voiced this before him, he told her that she is a teenager and should combine on her studies. The prosecutrix threatened a indicted respondent that if he would not agree to marry her, she would kill herself. In perspective of this threat, he concluded to marry her. The attribute between them continued for about 3 months. When a prosecutrix came to know that her relatives were about to get her married to somebody else, she started pressurizing a indicted to marry with her by giving him threats again. Ultimately, a accused- respondent and a prosecutrix fled divided from Hiriyur Town in a early morning of 26.10.2003 and reached Bangalore. There a indicted took her to Nallur Village nearby Whitefield and they stayed in a residence of aunt of a indicted – Kaveramma for about 20 days. The accused-respondent brought one readymade Mangalya (thaali) and tied it to a prosecutrix during about 3:00 p.m. on that date in a pronounced residence and they got married to any other. The indicted afterwards started visiting factories in hunt of job. During a duration from 26.10.2003 to 15.11.2003, a prosecutrix and a indicted lived together and led a conjugal married life. Finally, a Police of Hiriyur Police Station reached a pronounced residence on 15.11.2003 during about 12:15 p.m., and a indicted and a prosecutrix were taken to a Hiriyur Police Station by a evening. Thereafter, matter of a prosecutrix was available as Ex.P-1 on 15.11.2003 during Hiriyur Police Station. Based on this matter (Ex.P-1), review was taken up. The father of a prosecutrix (Lakshmana) had already filed a blank censure (Ex.P-2) on 26.10.2003, observant that his daughter had left out to attend nature’s call on 26.10.2003 during about 3:00 A.M. and afterward she could not be traced notwithstanding all efforts. On 11.11.2003, Lakshmana filed another censure (Ex.P-

3) during a Hiriyur Police Station observant that he suspected that a respondent competence have kidnapped his daughter.

On a basement of a evidences collected by a military during a investigation, charge-sheet was filed opposite a indicted respondent underneath Sections 366A and 376 of a IPC. The box was committed to a Court of Sessions. Since no element was found to support a assign for a corruption punishable underneath Section 366A of IPC, therefore, usually a assign for a corruption punishable underneath Section 376 of IPC was framed opposite a indicted to that he pleaded not guilty and claimed to be tried.

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The Trial Court by a visualisation and sequence antiquated 21.9.2007, convicted a respondent F. Nataraj for a corruption punishable underneath Section 376 of a IPC and condemned him to severe seizure for 5 years and to compensate a excellent of Rs.1,000/-, and in default of remuneration of fine, serve elementary seizure for 3 months was awarded. Being depressed by a aforesaid visualisation and sequence of a Trial Court, a accused-respondent filed an interest before a High Court of Karnataka during Bangalore, being Criminal Appeal No.1576 of 2007. The High Court by a impugned visualisation and sequence authorised this interest on a belligerent that yet a prosecutrix herein was reduction than 16 years of age and her agree would be of no aptitude if there was passionate retort between her and a accused, given a factum of passionate retort itself was not valid over reasonable doubt in perspective of a unsuitable justification of a prosecutrix that could not be usually relied upon.

The Appellant – State has challenged before us a visualisation of exculpation upheld by a High Court. Learned warn for a State of Karnataka has, inter alia, done a following submissions. Firstly, that a age of a prosecutrix was reduction than 16 years during a time a corruption was committed. The age was valid to be 13 ½ years on a date of occurrence by Ex.P-11, a birth certificate released by PW7 (headmaster of Swami Vivekananda School) formed on entries in a Admission Register, wherein her date of birth was specified as 8.3.1990. Secondly, a factum of passionate retort between a indicted and a prosecutrix has been contended to be valid over reasonable doubt by a matter of PW1 (prosecutrix) and modernized by a medical officer’s (Dr. Latha-PW5) testimony.

The schooled warn for a accused-respondent has not doubtful a age of a prosecutrix as has been certified by a High Court in a impugned visualisation that a prosecutrix was aged between 13-14 years and hence reduction than 16 years. But a arguments modernized by a Appellant State per a factum of passionate retort have been rebutted by putting his weight on a preference arrived during by a High Court. It is submitted that a testimony of a prosecutrix is inconsistent, uncorroborated by a medical justification that is deceptive and fails to settle clearly that a passionate retort took place and hence not reliable.

The Trial Court convicted a indicted respondent on a basement of a testimony of a prosecutrix as being upheld by a matter of a medical officer. The High Court also dealt with a emanate and hold that a Trial Court unsuccessful to conclude a discrepancies occurring in a evidences. The High Court has examined during length a record of a box and topsy-turvy a anticipating of a Trial Court.

We have listened a schooled warn on both sides and perused a judgments of a Trial Court as also a High Court. The doubt of age of a prosecutrix is not disputed. Hence, a usually emanate that stays before us is either a factum of passionate retort is determined or not?

To arrive during a end as to either tangible passionate retort took place or not, a statements of a prosecutrix (PW1) and medical officer (PW5) need to be examined in detail. As per a averments done by a prosecutrix in a censure (Ex.P-1) filed by her on 15.11.2003, she was in adore with a respondent and it is since of her duress that a indicted took her to Bangalore where they got married and led life like a married integrate for a duration of 20 days. She mentioned that their matrimony had done as well. However, a justification in examination-in-chief of a prosecutrix (PW1), is totally unsuitable with a averments in a censure (Ex.P-1). In her testimony done before a Court she has settled that in a early morning of 26.10.2003, when she came out of her residence to palliate herself, a indicted met her and forcibly took her to Bangalore observant that he desired her and would marry her. She serve settled that she was done to stay in a residence of Kaveramma (aunt of a accused) for about 20 days and they lived there as father and wife. But in her examination-in-chief she also mentioned that she did not board any censure or make any matter and a request Ex.P-1 yet has her sign, was not review over to her by a Police. After being treated as hostile, when a Public Prosecutor cross-examined her, she certified that after they came to Bangalore, a indicted brought a processed Thaali and tied it to her neck and they got married and passionate retort took place between them. But she vehemently and definitely denied a idea that a averments done in Ex.P-1 are loyal and scold and that a censure came to be created during her instance. In interrogate by a disciple for a accused, she definitely settled that she was good wakeful of a definition of a word “intercourse” and that it was unpleasant and she felt like screaming when a indicted had retort with her for a initial time.

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The statements of a prosecutrix are rarely inconsistent. The matter done by her to a military has been definitely denied and a statements done by her before a Court seem to be tutored. At a time when her matter was available as PW1, a age of a prosecutrix was about 17 years and it is utterly healthy for a lady of that age to know as to what is “sexual intercourse”. Also, a aunt of a indicted i.e. Kaveramma, during whose residence during Bangalore a prosecutrix and a indicted stayed after journey from Hiriyur Town, has not been examined. Further, a fact that a prosecutrix did not lift any alarm when a indicted attempted to kidnap her, seems to be utterly unnatural. The testimony of a prosecutrix when review as a whole, is full of discrepancies and does not enthuse confidence.

The medical hearing of a prosecutrix took place on 16.11.2003 and she was examined by Dr. M. Latha (PW5) who was a Lady Medical Officer during a Government Hospital, Hiryur. Her deposition was that on examination, no damage was found on a private tools of a prosecutrix and her hymen was intact. She also settled that there were no signs of new passionate retort as a prosecutrix was not subjected to passionate retort during a past 7 days from a date of her medical hearing and she released a certificate Ext.P-7 to this effect. But she could not contend clearly as to either a prosecutrix was subjected to passionate retort formerly or not.

It is not elicited by a justification of PW5 as to what was a inlet of a hymen that was found total in a chairman of a prosecutrix. Though it might be loyal that a detonation of a hymen might not start in all cases of passionate intercourse, though it is a weight of a charge to remove from a medical investigator examining a rape victim, that a inlet of a hymen was such that it could sojourn total notwithstanding there being retort with a lady on several occasions within a duration of 15 to 20 days. The medical investigator has merely mentioned that there were no signs of new passionate retort that is unsound to settle that passionate retort took place before that during all.

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The appellant State relied on a box of Madan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204, wherein this Court has hold that even a smallest invasion of penis into vagina though severing a hymen would consecrate rape. The appellant contended that a fact that a hymen of a prosecutrix was not ruptured does not lead to a deduction that there was no passionate intercourse. But we do not find any weight in this acquiescence as there is no medical justification even to advise a smallest of penetration.

Learned warn for a respondent relied on a box of Radhu v. State of M.P., (2007) 12 SCC 57, wherein this Court had laid down a element that a self-assurance of rape can be formed on a uncorroborated testimony of a prosecutrix and even a deficiency of injuries on a private tools of a plant will not reproduce a box of rape, though during a same time, a Courts contingency bear in mind that a doubt either there was rape or not would count eventually on a contribution and resources of any case.

Learned warn for a respondent serve relied on Mohd. Ali v. State of U.P., (2015) 7 SCC 272, wherein this Court recently hold as follows:

“30. True it is, a abbreviation of law permits that a testimony of a prosecutrix can be supposed though any certification though element particulars, for she has to be placed on a aloft pedestal than an harmed witness, but, a profound one, when a court, on complicated inspection of a justification finds it formidable to accept a chronicle of a prosecutrix, since it is not unreproachable, there is requirement for hunt of such approach or inconclusive justification that would lend declaration to her testimony…”

In a benefaction case, a gaps in a evidences of a prosecutrix and a medical officer make it rarely extraordinary that passionate retort took place. It would be erring to rest on such unbecoming testimonies and crook a accused. It can so be settled with confidence that a unique justification of a prosecutrix, in deficiency of any certification by a medical evidence, is not of such peculiarity that can be relied upon. The accused- respondent is, therefore, entitled to advantage of doubt.

Thus, in a light of a above discussion, we are of a perspective that a benefaction interest is abandoned of merits, and we find no drift to meddle with a visualisation upheld by a High Court. The interest is, accordingly, dismissed.

(Pinaki Chandra Ghose)
(R.K. Agrawal)
New Delhi Oct 07, 2015

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