KARTHI @ KARTHICKversusSTATE REP. BY INSPECTOR OF POLICE, TAMIL NADU

                       [2013] 8 SC.R. 1012


A                      KARTHI @ KARTHICK
                                  v
     STATE REP. BY INSPECTOR OF POLICE, TAMIL NADU
              (Criminal Appeal No. 601 of 2008)
                            JULY 1. 2013
B
     [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.)

         Penal Code, 1860 - ss. 376 and 417 - Conviction under
    - Of accused-appellant for deceitfully procuring consent of
C   PW1 for sexual intercourse on false promise of marriage -
    Justification - Held: Justified - Appellant committed deceit
    with PW1 by promising to marry her - In the first instance, he
    had forcible sexual relationship with PW1 and then told her
    not to reveal the incident to anyone by assuring her, that he
D   would marry her - Subsequent acts of repeated sexual
    intercourse by appellant with PW1, were also actions of
    actively cheating her by giving her the impression that he
    would marry her - Obtaining consent by exercising deceit,
    cannot be legitimate defence to exculpate an accused - As
E   long as commitment of marriage subsisted, relationship
    between the parties could not be described as constituting the
    offence of rape uls.376 - Things changed when appellant
    declined to marry the prosecutrix - After the promised alliance
    was declined, PW1 without any delay disclosed the entire
F   episode to her immediate family - Without any further delay,
    the brother and father of PW1 approached the village elders
    - The village elders immediately summoned the appellant
    by holding a panchayat and made all efforts to settle the issue
    amicably but the appellant declined to marry PW1 -
G   Thereafter, without any further delay, PW1 reported the matter
    to the police - No doubt in prosecution version, merely on
    account of delay in the registration of the FIR.
     Allegation of rape was made against the accused-
  appellant on the basis that he committed deceit with
H                          1012
 KAkTHI @ KARTH ICK v. STATE REP. BY INSP. OF          1013
            POLICE, TAMIL NADU

PW1; in the first instance he had forcible sexual              A
intercourse with her after gagging her mouth with his
right hand, when she was all alone in her house, and then
told her not to reveal the incident to anyone by assuring
her, that he would marry her and on the strength of the
very said deception of promising to marry her, had             B
repeated sexual intercourse with PW1 for over 6 months.
    The trial court convicted the appellant under Sections
376 and 417 IPC. The conviction was affirmed by the
appellate Court and the Revisional Court, and therefore
the present appeal.                                            C
    Dismissing the appeal, the Court
     HELD: 1.1. Three sets of statements, the first
comprising of the prosecutrix (PW1), her brother (PW2)
and her father (PW4), read with the statements of the          o
elders of the village, namely PWs5, 6, 7 and 8, when
examined in conjunction with the statements of two
friends of appellant, PWs9 and 10, leave no room for any
doubt that the appellant in the first instance had unwilling
sexual relationship with PW1. Even though she had              E
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, when she was all alone in her house,
                                                               F
h.e told her not to reveal the incident to anyone by
assuring her, that he would marry her. [Para 12) [1020-F-
H; 1021-A-B]
     1.2. PW1 has confirmed in her deposition, that at the
time of the first sexual intercourse with her at her house,    G
the appellant 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.     H
    1014    SUPREME COURT REPORTS              (2013] 8 SC.R


A The occurrence at the Murugan temple, is of significant
  importance. At the temple, for the first time the appellant
  told PW1, that he would not marry her, The appellant
  committed deceit with PW1 by promising to marry her. On
  the strength of the said deception, in the first instance
B 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 cannot be said that sexual intercourse by the
  appellant with PW1 was consensual. Obtaining consent
c by exercising deceit, cannot be legitimate defence to
  exculpate an accused. [Para 14) (1024-B-G]
         1.3. As long as commitment of marriage subsisted,
    the relationship between the parties could not be
    described as constituting the offence of rape under
D   Section 376 IPC. It is only after the appellant declined to
    marry 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 appellant declined to marry the
E   prosecutrix. After the promised alliance was declined,
    PW1 without any delay disclosed the entire episode to
    her immediate family. Without any further delay, the
    brother and father of PW1 approached the village elders.
    The village elders immediately summoned the appellant
F   by holding a panchayat. The village elders made all
    efforts to settle the issue amicably. It is only on the
    refusal of the appellant, to marry PW1, that the question
    of making a criminal complaint arose. After the meetings
    of the panchayat, wherein the appellant declined to marry
G   PW1, without any further delay, PW1 reported the matter
    to the police. In the above view of the matter, in the
    peculiar facts of this case, no doubt can be said to have
    been created in the version of the prosecution, merely on
    account of delay in the registration of the FIR. [Para 17)
H   (1026-F-H; 1027-A-D]
 KARTH I @ KARTHICK v. STATE REP. BY INSP. OF             1015
             POLICE, TAMIL NADU

     Uday v. State of Karnataka (2003) 4 SCC 46: 2003 (2)        A
SCR 231 and Zinder Ali Sheikh vs. State of West Bengal &
Anr. (2009) 3 SCC 761: 2009 (1) SCR 968 - referred to.

                     Case Law Reference:
    2009 (1) SCR 968            referred to          Para 13     B
    2003 (2) SCR 231            referred to          Para 13

    CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 601 of 2008.
                                                                 c
    From the Judgment & Order dated 18.12.2006 of the High
Court of Madras, Bench at Madurai in Criminal Revision Case
No. 439 of 2005.

      R. Balasubrmanian, K.V. Vijayakumar, T.R.B. Siva Kumar
                                                                 0
for the Appellant.

    A. Yogesh Kanna, A. Santha Kumaran, B. Balaji for the
Respondent.

    The Judgment of the Court was delivered by                   E
    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      F
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       G
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,   H
     1016   SUPREME COURT REPORTS                  [2013] 8 S.C R


A first of all, by the prosecutrix Poomari (PW1 ). At the time of
  occurrence, she was 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
B 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
C 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 .
D 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
E   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
F   (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 Poomari (PW1) to allow him to have
G   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
H   committed to the prosecutrix Poomari (PW1 ), that he would
 KARTHI@ KARTHICK v. STATE REP. BY INSP. OF 1017
POLICE, TAMIL NADU [JAGDISH SINGH KHEHAR, J.]

marry her. Consequent upon her refusal to have sexual               A
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         B
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            C
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.
                                                                    D
      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           E
divulge the entire factual position to her 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-
                                                                    F
appellant Karthick, to a number of village elders including
Veerachamy (PW5), Ramasamy (PW6), Ayyavoo (PW?) and
Nagesh (PW8).

     7. The village elders then summoned the accused-
appellant Karthick. For settling the dispute, a panchayat was       G
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   H
     1018 SUPREME COURT REPORTS                  [2013] 8 SC R


A   to mak.e 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.
B
       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
C 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.

       10 During the course of the trial, 16 witnesses were
D 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
E 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
F 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
G 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)
H
 KARTHI @ KARTHICK v. STATE REP. BY INSP. OF 1019
POLICE, TAMIL NADU [JAGDISH SINGH KHEHAR, J.]

was fully supported by her brother Manikannan (PW2) and her       A
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 B
the accused-appellant Karthick, the prosecution had examined
four village elders of Alagapuri, namely, Veerachamy (PWS),
Ramasamy (PW6), Ayyavoo.(PW7) and Nagesh (PW8). All of
the aforesaid witnesses supported the prosecution version, by
reiterating the convening of a panchayat where the accused- C
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 D
(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- E
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 F
of Veerachamy (PWS), 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 G
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, namely, Chand ran (PW9) and llangovan (PW10).
                                                                  H
    1020    SUPREME COURT REPORTS               [2013) 8 SC.R


A 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
B who had earlier promised to marry her had now refused to do
  so, just preceding their meeting at the temple. The statement
  of !langovan (PW10) was to the same effect llangovan (PW10)
  affirmed having seen both the accused-appellant Karthick and
  the prosecutrix Poomari (PW1) together on a couple of
c 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-
0
  appellant having promised to marry her. Both Chandran (PW9)
  and llangovan (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
  llangovan (PW10), who are friends of the accused-appellant
E 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.

F      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
G (PW8), when examined in conjunction with the statements of
  two friends of the accused-appellant Karthick, Chandran (PW9)
  and llangovan (PW10), leave no room for any doubt that the
  accused-appellant Karti1ick in the first instance had unwilling
  sexual relationship with the prosecutrix Poomari (PW1) Even
H though she had protested and repulsed his physical advances
 KARTH!@ KARTHICK v. STATE REP. BY INSP. OF 1021
POLICE, TAMIL NADU [JAGDISH SINGH KHEHAR, J.]

by telling him that this would be possible only after their           A
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            B
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             C
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 llangovan (PW10) who
deposed in connection with the occurrence at Murugan temple,          D
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.                                           E

     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     F
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          G
    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
                                                                      H
    1022   SUPREME COURT REPORTS                  [2013) 8 S.C.R.


A      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
B
       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
c      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
D 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 :

       "14. There is no effective Cross-Examination to this
E
       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
F
       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
G      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
H
 KARTHI@ KARTHICK v. STATE REP. BY INSP. OF 1023
POLICE, TAMIL NADU [JAGDISH SINGH KHEHAR, J.]

     totally unchallenged. Her version that she was forcibly       A
     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 acGused.
                                                                   B
     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      C
     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      D
    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.                       E

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
                                                                   F
basis of the peculiarities of the case 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 G
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 H
    1024    SUPREME COURT REPORTS                  [2013] 8 S.C R.


A 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. Th~ Jact
B 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 Kaithick had gagged her mouth
c 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
0
  told the prosecutrix Poomari (PW1 ), that he would not marry
  her. The instant factual position has been confirmed by
  Chandran (PW9) and llangovan (PW10). Despite lengthy cross-
  examination, the accused-appellant has not been able to
E 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 nono
F 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
G 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
H learned counsel for the appellant was, that the accused-
 KARTH I @ KARTHICK v. STATE REP. BY INSP. OF 1025
POLICE, TAMIL NADU [JAGDISH SINGH KHEHAR, J.]

appellant Karthick had not given any promise to the prosecutrix        A
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    B
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. Four village elders have appeared         c
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           0
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        E
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          F
(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                  G
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 made any                 H
    1026     SUPREME COURT REPORTS                  [2013] 8 S.C.R.


A   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
8
  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
C 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,
D 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.

E      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
F 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 (PW1 ), that a different dimension came to be attached
  to the physical relationship, which had legitimately continued
G 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
H
 KARTHI@ KARTHICK v. STATE REP. BY INSP. OF 1027
POLICE, TAMIL NADU [JAGDISH SINGH KHEHAR, J.]

summoned the accused-appellant Karthick by holding a                    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              B
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                      c
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.                                                     D
      18. No other submission, besides those noticed
hereinabove, was advanced at the hands of the learned counsel
for the appellant. For the reasons recorded hereinabove, we
find no merit in this appeal. The same is accordingly dismissed.
                                                                        E
     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.
                                                                        F
B.B.B.                                         Appeal dismissed.