UDAY Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment and order of the High Court of Karnataka at Bangalore dated 20th April, 1995 in Criminal Appeal No. 428 of 1992 whereby the High Court while dismissing the appeal and upholding the conviction of the appellant under Section 376 of the Indian Penal Code reduced the sentence to two years rigorous imprisonment and a fine of Rs. 5000/- and in default, to undergo further rigorous imprisonment for 6 months. Earlier the Sessions Judge, Karwar before whom the appellant was tried in Sessions Case No. 16/90, by his judgment and order dated 27th November, 1992 sentenced the appellant to seven years rigorous imprisonment under Section 376 of the Indian Penal Code and a fine of Rs. 20,000/- and in default, to undergo further rigorous imprisonment for six months. He also directed that out of the fine, if realized, a sum of Rs. 10,000/- be given to the prosecutrix/complainant. The trial Court as well as the High Court have concurrently held that though the prosecutrix had consented to sexual intercourse with the appellant, the consent was obtained by fraud and deception inasmuch as the appellant induced her to consent on the promise that he shall marry her. It was under such misconception that for several months thereafter the prosecutrix, who claimed to be deeply in love with the accused, continued to have sexual intercourse with him till it was discovered that she was pregnant. When the appellant did not agree to the performance of the marriage, at that stage, the complainant lodged a report in the police station pursuant to which investigation was taken up and the appellant put up for trial before the Sessions Judge, Karwar.

(2.) It is not in dispute that the prosecutrix, P.W. 1 was aged about 19 years on the date of occurrence i.e. in the last week of August, 1988 or the first week of September, 1988. She deposed that her date of birth was 6th August, 1969. The appellant also was a young man of about 20-21 years of age when the occurrence took place, as he claimed to be 25 years of age in the year 1992 when he was examined under Section 313 of the Code of Criminal Procedure. There is, therefore, no dispute that the prosecutrix was above the age of 16 on the date of occurrence. The prosecutrix was studying in a college and residing with her parents, brothers and sisters in Majali Gaongeri. In her deposition, she stated that the appellant was a friend of her elder brother Jagdish, P.W. 3. The appellant resided in the neighboured and used to frequently visit her house almost daily and used to talk to her also, apart from other members of the family. A friendship developed between them and one day, the appellant proposed to her to marry him. The prosecutrix told him that since they belong to different castes such a marriage was not possible. The prosecutrix is a native of Tamil Nadu and belongs to the Goundar community, while the appellant claims to be a Daivanya Brahim. However, it is not disputed that they fell in love with each other, but the prosecutrix avoided talking to the appellant in presence of her parents.

(3.) In the last week of August, 1988 or first week of September, 1988 at about 12 O clock in the night when she was studying, the appellant came to the window of the room and called her out to talk to her. Since she was deeply in love with him, she responded to his invitation and thereafter they went to the place where the house of the appellant was under construction. The appellant talked to her and thereafter kissed her and embraced her and promised to marry her. He also had sexual intercourse with her. She was not willing to have sexual intercourse, but in the circumstances she consented to the sexual intercourse because the accused had promised to marry her. They continued to meet thereafter and went out frequently. During this period as well, the appellant had stated many times that he would marry her. She also admits that she had sexual intercourse with him about 15-20 times and that they used to have sexual intercourse once or twice a week. She also admits that they were both noticed together by several persons whom she has named in her deposition. When one Vanamala, who had noticed her, questioned her about the affair, she had told her that they were madly in love with each other and that the appellant had promised to marry her. She also requested her not to reveal this fact to anyone.