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“REPORTABLE”

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.601 OF 2008

Karthi @ Karthick ... Appellant

Versus

State Rep. by Inspector of Police, Tamil Nadu ... Respondent

J U D G M E N T

Jagdish Singh Khehar, J.

1. The appellant, Karthi @ Karthick was convicted for the offences  

under  Sections 376 and 417 of  the Indian penal  Code,  1860 by the  

Assistant Sessions Judge, Virudhunagar in Sessions Case No.119 of  

2004  by  an  order  dated  30.11.2004.   The  aforesaid  conviction  was  

affirmed  by  the  Additional  District  and  Sessions  Judge  (Fast  Track  

Court),  Virudhunagar,  in  Criminal  Appeal  No.2  of  2005,  by  an order  

dated 1.6.2005.   The appellant’s Revision Petition (Criminal  Revision  

Case No.439  of  2005)  was dismissed  by  the  Madurai  Bench of  the  

Madras High Court on 18.12.2006.  The appellant has approached this  

Court to assail the orders passed by the Trial Court, the appellate Court  

and the Revisional Court.

2. The accusation in the instant controversy was levelled, first of all,  

by the prosecutrix Poomari (PW1).  At the time of occurrence, she was

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aged between 18 to 20 years.  She was then a resident of Achampatti.  

The prosecutrix Poomari (PW1) had pointed an accusing finger, at the  

accused-appellant Karthick.  The accused appellant was aged above 20  

years at the time of occurrence.  He was also a resident of Achampatti.  

The  accused-appellant  Karthick,  besides  being  a  neighbour  of  the  

prosecutrix Poomari (the prosecutrix Poomari (PW1)) also belonged to  

the same caste as the prosecutrix.   

3. From the factual position emerging from the record of this case, it  

appears that the prosecutrix Poomari (PW1) had lost her mother in early  

childhood.  At the relevant time, therefore, she was living with the family  

of her brother Manikannan (PW2) and sister-in-law Pitchumani (PW3),  

(wife  of  Manikannan,  PW2).   The  father  of  the  prosecutrix  Poomari  

(PW1), i.e., Muthukaruppa Thevar (PW4) was then, also residing in the  

same house.   

4. The accusation against Karthick, was made on 10.10.2003.  The  

initiation  of  the  series  of  occurrences,  leading  to  the  filing  of  the  

complaint,  had  allegedly  commenced  six  months  prior  thereto.  

According  to  the  statement  of  the  prosecutrix  Poomari  (PW1),  the  

accused-appellant Karthick used to generally tease her.  He also used  

to ask her to marry him.  On the first date of occurrence, the prosecutrix  

Poomari (PW1) was alone in the house.  The other family members had  

gone to the temple.  The accused-appellant Karthick, finding her alone,  

entered her house.  At that juncture,  she was allegedly asleep.  The  

accused-appellant  Karthick  had  allegedly  requested  the  prosecutrix  

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Poomari (PW1) to allow him to have sexual intercourse with her.  The  

prosecutrix allegedly refused to consent.  She claims to have told the  

appellant, that sexual intercourse could only be had after marriage.  Yet,  

he forced himself on her, after he had gagged her mouth with his right  

hand. The accused-appellant Karthick, then allegedly committed to the  

prosecutrix Poomari (PW1), that he would marry her.  Consequent upon  

her refusal to have sexual intercourse with him, the accused-appellant  

Karthick  allegedly  gagged  her  mouth  to  prevent  her  from raising  an  

alarm.  He then, had sexual intercourse with her.  He told her not to  

reveal the incident to anyone, on the assurance, that he would marry  

her.  He had allegedly promised her marriage, by placing his hand on  

her  head.   Believing  the  promise  made  by  the  accused-appellant  

Karthick,  the  prosecutrix  Poomari  (PW1)  did  not  reveal  the  first  

occurrence, to anyone.

5. After the first occurrence, the acknowledged factual  position is,  

that the accused-appellant Karthick and the prosecutrix Poomari (PW1)  

were repeatedly engaged in consensual sex at different places.  During  

the  entire  interregnum,  according  to  the  prosecutrix,  the  accused-

appellant Karthick swore, that he would marry her.

6. On  5.10.2003,  the  prosecutrix  Poomari  had  gone  to  Murugan  

temple, Kariapatti in the company of the accused-appellant Karthick.  At  

the temple, she again requested Karthick to marry her.  He, however,  

refused to marry her.   Consequent  upon the refusal,  the prosecutrix  

Poomari  (PW1)  allegedly  divulge  the  entire  factual  position  to  her  

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brother Manikannan (PW2),  and other family members.   Manikannan  

(PW2), and her father Muthukaruppa Thevar (PW4) decided to get the  

matter  sorted  out  through  the  village  elders.   They  narrated  the  

relationship  between  the  prosecutrix  Poomari  and  the  accused-

appellant Karthick, to a number of village elders including Veerachamy  

(PW5), Ramasamy (PW6), Ayyavoo (PW7) and Nagesh (PW8).

7. The  village  elders  then  summoned  the  accused-appellant  

Karthick.  For  settling  the  dispute,  a  panchayat  was  held.   The  

panchayat made efforts to persuade the accused-appellant Karthick to  

marry  the  prosecutrix  Poomari.   The  accused-appellant  Karthick,  

however,  refused  to  marry  Poomari  (PW1).   On  the  refusal  of  the  

accused-appellant Karthick to marry the prosecutrix, the village elders  

advised her to make a complaint to the police.  The prosecutrix Poomari  

(PW1), thereupon, lodged a report on 10.10.2003 at 8.00 a.m., with the  

Inspector of Police, Kariapatti.   

8. The accused-appellant Karthick surrendered before the Judicial  

Magistrate No.II, Virudhunagar on 5.11.2003.

9. On completion of investigation, a charge-sheet was filed before  

the  Judicial  Magistrate  No.II,  Virudhunagar.   Since  charges  levelled  

against the accused-appellant Karthick related to offences triable by a  

Court  of Sessions, the matter was committed to the Principal District  

and  Sessions  Court,  Virudhunagar  at  Srivilliputtur.   On  committal,  

Sessions  Case  No.119  of  2004  was  placed  before  the  Assistant  

Sessions Judge, Virudhunagar for trial.

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10. During the course of the trial, 16 witnesses were examined by the  

prosecution,  and 12 exhibits  were placed on the record of  the case.  

The statement  of  the accused appellant  Karthick  was then recorded  

under Section 313 of the Code of Criminal Procedure.  The accused  

appellant did not lead any evidence in his defence, even though he was  

afforded an opportunity to do so.  

11. With the assistance of learned counsel for the rival parties, we  

have  gone  through  the  judgments,  which  are  subject  matter  of  

challenge at  the hands of  the accused-appellant  Karthick.   We have  

also been taken through the statements of certain witnesses specially  

the  statement  of  the  prosecutrix  Poomari  (PW1),  and  that  of  Dr.  

K.P.Santhakumari  (PW14),  i.e.,  the  doctor  who  subjected  the  

prosecutrix Poomari (PW1) to medical examination.  We may, therefore,  

summarise  the  sum and substance  of  the  evidence recorded at  the  

behest of the prosecution before the Trial Court.   

(i) The  prosecutrix  Poomari  (PW1)  fully  reiterated  the  factual  

position  recorded  by  her  in  her  complaint  dated  10.10.2003.   The  

statement of the prosecutrix Poomari (PW1) was fully supported by her  

brother  Manikannan  (PW2)  and  her  father  Muthukaruppa  (PW4).  

Despite  lengthy  cross-examination,  the  testimony  of  the  aforesaid  

witnesses could not be shaken.   

(ii) On  an  ancillary  issue  connected  with  the  culpability  of  the  

accused-appellant Karthick, the prosecution had examined four village  

elders  of  Alagapuri,  namely,  Veerachamy (PW5),  Ramasamy (PW6),  

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Ayyavoo  (PW7)  and Nagesh  (PW8).   All  of  the  aforesaid  witnesses  

supported  the  prosecution  version,  by  reiterating  the  convening  of  a  

panchayat where the accused-appellant Karthick was summoned.  They  

affirmed  the  fact  that  the  accused-appellant  Karthick  had  refused  to  

marry the prosecutrix Poomari (PW1), when he had appeared before  

them.   The  instant  aspect  of  the  matter  leads  to  one  interesting  

inference, namely, that the elders of the village were convinced, that in  

view of the relationship between the prosecutrix Poomari (PW1) and the  

accused-appellant  Karthick,  they  ought  to  get  married,  and  it  is  

therefore,  that  the  accused-appellant  Karthick  was  asked  by  the  

panchayat, to marry the prosecutrix Poomari (PW1).  But he refused to  

do so.  Otherwise, there would have been no question of the panchayat  

asking the accused-appellant Karthick to marry the prosecutrix Poomari  

(PW1).   Since  the  accused-appellant  Karthick  did  not  agree  to  the  

proposal of the elders of the village, they recommended the prosecutrix  

Poomari  (PW1) to make a complaint  to the police.   There is nothing  

incongruous  or  discordant  in  the  statements  of  Veerachamy  (PW5),  

Ramasamy  (PW6),  Ayyavoo  (PW7)  or  Nagesh  (PW8).   None  was  

pointed out during the course of hearing.  Thus, viewed, there can be no  

doubt that the proceedings during the holding of the panchayat would  

constitute strong circumstantial evidence for drawing an inference in the  

facts of this case.   

(iii) There  is  another  set  of  relevant  witnesses,  as  well.   These  

witnesses  are  allegedly  friends  of  the  accused-appellant  Karthick,  

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namely,  Chandran  (PW9)  and  Ilangovan  (PW10).   Chandran  (PW9)  

deposed,  that  he  had  seen  the  prosecutrix  Poomari  (PW1)  and  the  

accused-appellant Karthick at the Murugan temple.  During this meeting  

with the prosecutrix Poomari (and the accused-appellant Karthick), the  

prosecutrix  had  told  Chandran  (PW9)  that  the  accused-appellant  

Karthick who had earlier promised to marry her had now refused to do  

so,  just  preceding  their  meeting  at  the  temple.   The  statement  of  

Ilangovan (PW10) was to the same effect.  Ilangovan (PW10) affirmed  

having seen both the accused-appellant  Karthick and the prosecutrix  

Poomari (PW1) together on a couple of occasions.  He also deposed,  

that he had met them at the Murugan temple.  At the temple, he was  

told  by  the  prosecutrix  Poomari  (PW1),  that  the  accused-appellant  

Karthick, had refused to marry her.  In his statement, he acknowledged  

that she had also informed him of having had a physical relationship  

with  the  accused-appellant  Karthick,  on  account  of  the  accused-

appellant  having promised to marry her.   Both Chandran (PW9) and  

Ilangovan (PW10) had denied the suggestion put to them during the  

course of their cross-examination, that they were deposing falsely.  The  

statements of Chandran (PW9) and Ilangovan (PW10), who are friends  

of the accused-appellant Karthick further show, that they were aware of  

the  relationship  between the  prosecutrix  Poomari   and karthick,  and  

that, the accused-appellant Karthick had retracted from his promise to  

marry her, at the Murugan temple.

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12. Three sets of statements, the first comprising of the prosecutrix  

Poomari  (PW1),  her  brother  Manikannan  (PW2)  and  her  father  

Muthukaruppa Thevar (PW4), read with the statements of the elders of  

the village,  namely  Veerachamy (PW5),  Ramasamy (PW6),  Ayyavoo  

(PW7)  and  Nagesh  (PW8),  when  examined  in  conjunction  with  the  

statements of two friends of the accused-appellant Karthick, Chandran  

(PW9) and Ilangovan (PW10),  leave no room for any doubt  that  the  

accused-appellant  Karthick  in  the  first  instance  had  unwilling  sexual  

relationship with the prosecutrix Poomari (PW1).  Even though she had  

protested and repulsed his physical advances by telling him that this  

would be possible only after their marriage.  Yet, he forced himself on  

her,  after  gagging  her  mouth  with  his  right  hand.   After  having  had  

sexual intercourse with the prosecutrix Poomari, her when she was all  

alone in her house, he told her not to reveal the incident to anyone by  

assuring her, that he would marry her.  He also promised to marry her,  

by  placing  his  hand  on  her  head.   The  relationship  between  the  

prosecutrix  Poomari  (PW1)  and  the  accused-appellant  Karthick  is  

supported by the circumstantial evidence of the elders of the family of  

the  prosecutrix.   The  elders  of  the  family  had  then  approached  the  

village elders, with a request to amicably resolve the issue.  Despite the  

asking  of  the  elders  of  the  village,  the  accused-appellant  Karthick  

declined to marry the prosecutrix Poomari (PW1).  The version of the  

prosecutrix  Poomari  (PW1),  is  also  independently  affirmed  from  the  

statements of Chandran (PW9) and Ilangovan (PW10) who deposed in  

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connection with the occurrence at Murugan temple,  during which the  

accused-appellant  Karthick,  for  the  first  time  refused  to  marry  the  

prosecutrix  Poomari  (PW1).   It  is in the background of  the aforesaid  

factual position, that we shall endeavour to determine the submissions  

at the behest of the accused-appellant Karthick.   

13. First and foremost, the learned counsel for the appellant placed  

reliance  on  the  judgment  rendered  in  Uday  vs.  State  of  Karnataka,  

(2003) 4 SCC 46.  Relying on the aforesaid judgment, learned counsel  

for the appellant invited our attention to the following conclusions drawn  

therein :

“21. It therefore appears that the consensus of judicial opinion is  in favour of the view that the consent given by the prosecutrix to  sexual intercourse with a person with whom she is deeply in love  on a promise that he would marry her on a later date, cannot be  said to be given under a misconception of fact. A false promise is  not  a fact  within the meaning of  the Code.  We are inclined to  agree with this view, but we must add that there is no strait jacket  formula for determining whether consent given by the prosecutrix  to sexual intercourse is voluntary, or whether it is given under a  misconception of fact. In the ultimate analysis, the tests laid down  by the Courts provide at best guidance to the judicial mind while  considering a question of consent,  but the Court must, in each  case,  consider  the  evidence  before  it  and  the  surrounding  circumstances, before reaching a conclusion, because each case  has  its  own  peculiar  facts  which  may  have  a  bearing  on  the  question whether the consent was voluntary, or was given under  a misconception of fact. It must also weigh the evidence keeping  in view the fact that the burden is on the prosecution to prove  each and every  ingredient  of  the  offence,  absence  of  consent  being one of them.”

Besides the aforesaid,  learned counsel  for  the appellant  also placed  

reliance on the decision rendered in Zinder Ali Sheikh vs. State of West  

Bengal & Anr., (2009) 3 SCC 761.  From the instant judgment learned  

counsel placed reliance on the following observations :

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“14. There  is  no  effective  Cross-Examination  to  this  witness.  One  question  was  asked  about  her  clinical  and  physical  examination.  It  was  suggested  firstly  that  she  had  suffered  injuries on her private parts and person. The witness, however,  stated that there was no bleeding injury, meaning thereby, that  the injuries were insignificant considering that she was medically  examined after about 6 months. Such admission is meaningless.  Her  version  regarding  rape,  however,  has  gone  unchallenged.  She was asked about the workplace and the boys being there,  however,  non-disclosure  to  the  boys  would  only  be  a  natural  behaviour  and  cannot  lead  us  to  the  conclusion  that  she  had  consented for the sexual intercourse. There was no reason for  the  poor  girl  to  falsely  implicate  the  accused.  There  is  no  suggestion of any love-affair with the accused also. Her version  that she was raped by the accused, goes totally unchallenged.  Her version that she was forcibly caught and a napkin was put  inside her mouth before the accused had committed rape on her,  was a little exaggerated, but it does not demolish her version that  she was raped by the accused.

15. PW-2, Moshar SK, in his deposition, had spoken about the  Chandmoni and her father, telling him that Chandmoni was raped  by the accused. He had also spoken about the village meeting,  where, it was decided that the accused should marry Chandmoni.  Again, there is no Cross-Examination of this witness. Of course,  this witness had stated that he had not made any statement to  the Police, as he was not interrogated.  

16. Another witness PW-3 Tajem SK (Mallick) also spoke about  the village meeting, which was held at the instance of Markam Ali  SK, father of the prosecuterix. He also claimed that he was not  interrogated by the Police. In his Cross-examination itself, it has  come  that  there  were  about  200-250  persons  present  in  the  village  meeting,  where,  it  was  decided  that  the  accused  was  guilty.

Based  on  the  observations  made  by  this  Court  in  the  aforesaid  

judgments, it was the vehement contention of the learned counsel for  

the appellant, that each case wherein the allegation of rape is based on  

the procuring  of  consent  for  sexual  intercourse  by deceit,  has to be  

determined  individually  on  the  basis  of  the  peculiarities  of  the  case  

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being handled.  We shall, therefore, endeavour to determine the issue  

in hand on the aforesaid parameters.

14. The  factual  submission  advanced  at  the  hands  of  the  learned  

counsel for the appellant was that the prosecutrix Poomari (PW1) was a  

consenting party to the sexual relationship which the accused-appellant  

Karthick had with her.  That may be so at a subsequent stage, yet it is  

not possible for us to accept the instant submission advanced at the  

hands of the learned counsel for the appellant for his exculpation.  The  

facts  as  they  unfold  from the  statement  of  the  prosecutrix  Poomari  

(PW1)  are,  that  even  before  the  first  act  of  sexual  intercourse,  the  

accused-appellant Karthick used to tease her.  He also used to tell her,  

that he wished to marry her.  The fact that he had sexual intercourse  

with  her,  when  the  prosecutrix  Poomari  (PW1)  was  all  alone  in  her  

house, is not disputed.  The prosecutrix Poomari (PW1) has confirmed  

in her deposition, that at the time of the first sexual intercourse with her  

at  her  house,  the accused-appellant  Karthick had gagged her mouth  

with his right hand.  He had promised to marry her, by placing his hand  

on her head, after having ravaged her.  The subsequent acts of sexual  

intercourse,  were  actions  of  actively  cheating  her,  by  giving  her  the  

impression that he would marry her.  The occurrence at the Murugan  

temple, is of significant importance.  At the temple, for the first time the  

accused-appellant Karthick told the prosecutrix Poomari (PW1), that he  

would not marry her.  The instant factual position has been confirmed  

by  Chandran  (PW9)  and Ilangovan  (PW10).   Despite  lengthy  cross-

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examination,  the accused-appellant  has not  been able  to create any  

dent  in  the  testimony  of  the  prosecutrix  Poomari  (PW1).   In  the  

aforesaid view of the matter, we confirm the concurrent determination of  

the courts below, that the accused-appellant Karthick committed deceit  

with the prosecutrix Poomari (PW1) by promising to marry her.  On the  

strength of the said deception, in the first instance persuaded her not to  

disclose  the  occurrence  to  anyone,  and  thereafter,  repeatedly  had  

sexual intercourse with her.  Therefore, in the facts and circumstances  

of this case, it is not possible for us to accept the contention advanced  

on behalf of the accused-appellant Karthick, that sexual intercourse by  

the  accused-appellant  Karthick  with  the  prosecutrix  Poomari  was  

consensual.   Obtaining  consent  by  exercising  deceit,  cannot  be  

legitimate defence to exculpate an accused.

15. The  second  contention  advanced  at  the  hands  of  the  learned  

counsel for the appellant was, that the accused-appellant Karthick had  

not given any promise to the prosecutrix Poomari (PW1), that he would  

marry her.  From all the reasons referred to by us, while dealing with the  

first contention advanced by learned counsel for the appellant, it is not  

possible for us to accept the instant contention as well.  However, in  

addition to the factual  position referred to while dealing with the first  

contention, there is something further that needs to be recorded.  It is  

necessary  to  notice,  that  in  the  first  instance  when  the  prosecutrix  

Poomari  (PW1)  disclosed  the  matter  of  deception  and  sexual  

intercourse to her family,  the matter  was taken to the village elders.  

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Four village elders have appeared before the Trial Court and recorded  

their statements.  Each one of them affirmed, that they had required the  

accused-appellant Karthick to agree to marry the prosecutrix Poomari  

(PW1) on account of his physical relationship with her.  Only on denial  

to accede to their request, on their suggestion, the matter was reported  

to  the police.   The instant  aspect  of  the matter  fully  demolishes the  

projection made by the accused-appellant Karthick, while recording of  

his statement  under Section 313 of  the Code of  Criminal  Procedure.  

During his aforesaid statement, he had expressly alleged, that it was for  

the purpose of forcing the accused-appellant to shell out an exorbitant  

sum  of  money  to  the  prosecutrix  Poomari  (PW1)  and  her  family  

members,  that  the instant  accusation had been levelled against  him.  

Actually from the statements of Veerachamy (PW5), Ramasamy (PW6),  

Ayyavoo (PW7) and Nagesh (PW8), it clearly emerges that the intention  

of the prosecutrix Poomari (PW1) and her brother Manikannan (PW2),  

as also her father,  Muthukaruppa Thevar (PW4) was, that he should  

marry her.  The desire of the family, that the accused-appellant should  

marry the prosecutrix was based on the undisputed factual position, that  

Karthick had had sexual intercourse with Poomari repeatedly.  No such  

suggestion  was  shown  to  have  been  made  to  the  concerned  

prosecution witnesses.  This was only an afterthought.  It is, therefore,  

not possible for us to accept the plea canvassed at the hands of the  

learned counsel for the appellant, that the accused appellant had not  

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made any promise to the prosecutrix  Poomari  (PW1),  that  he would  

marry her.   

16. The last contention advanced at the hands of the learned counsel  

for  the appellant  was,  that  the first  occurrence of  sexual  intercourse  

commenced six months prior to the date when the complaint was made  

to the Police (on 10.10.2003).  It was, therefore, the contention of the  

learned counsel for the appellant, that same should be treated as an  

afterthought.  It was pointed out, that the registration of a case by the  

prosecutrix  Poomari  (PW1)  was  no  more  than  a  scheme  to  falsely  

accuse and harm the accused-appellant.  It was submitted, that even a  

day’s delay in registering a complaint has vital repercussions.  It was  

also  pointed  out,  that  delay  in  the  instant  case,  had  obvitated  any  

positive finding on the basis of a medical examination of the prosecutrix  

Poomari (PW1).  It is, therefore, the vehement contention of the learned  

counsel for the appellant, that delay in registering the complaint with the  

police in the facts and circumstances of this case, should be accepted  

as sufficient to infuse a sense of doubt in the prosecution story.   

17. Having examined the contention advanced at the hands of the  

learned counsel  for the appellant,  we are of  the view that  there has  

been  no  delay  whatsoever  at  the  hands  of  the  prosecutrix  Poomari  

(PW1).  As long as commitment of marriage subsisted, the relationship  

between the parties could not be described as constituting the offence  

of rape under Section 376 of the Indian penal Code.  It is only after the  

accused-appellant Karthick declined to marry the prosecutrix Poomari  

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(PW1), that a different dimension came to be attached to the physical  

relationship, which had legitimately continued over the past six months.  

Things  changed  when  the  accused-appellant  declined  to  marry  the  

prosecutrix.  After the promised alliance was declined, the prosecutrix  

without any delay disclosed the entire episode to her immediate family.  

Without any further delay, the brother and father of the Poomari (PW1)  

approached  the  village  elders.   The  village  elders  immediately  

summoned the accused-appellant Karthick by holding a panchayat. The  

village elders made all efforts to settled the issue amicably.  The family,  

as is usual  in such matters,  wished to settle the matter  amicably by  

persuading the accused-appellant to view the matter realistically.  It is  

only  on  the  refusal  of  the  accused-apellant  Karthick,  to  marry  the  

prosecutrix  Poomari  (PW1),  that  the  question  of  making  a  criminal  

complaint  arose.   After  the  meetings  of  the  panchayat,  wherein  the  

accused-appellant  declined  to  marry  the  prosecutrix  Poomari  (PW1),  

without any further delay, the prosecutrix Poomari (PW1) reported the  

matter to the police on 10.10.2003.  In the above view of the matter, in  

the peculiar facts of this case, it is not possible for us to hold, that any  

doubt  can  be  said  to  have  been  created  in  the  version  of  the  

prosecution, merely on account of delay in the registration of the first  

information report.

18. No other  submission,  besides  those  noticed  hereinabove,  was  

advanced at the hands of the learned counsel for the appellant.  For the  

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reasons recorded hereinabove, we find no merit  in this appeal.   The  

same is accordingly dismissed.

19. The accused-appellant Karthick was ordered to be released on  

bail by this Court vide order dated 4.4.2008.  He shall now be taken into  

custody, to serve the remaining part of the sentence.

…………………………….J. (P. Sathasivam)

…………………………….J. (Jagdish Singh Khehar)

New Delhi; July 1, 2013.

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