The trial companyrt as well as the High Court have companycurrently held that though the prosecutrix had companysented to sexual intercourse with the appellant, the companysent was obtained by fraud and deception inasmuch as the appellant induced her to companysent on the promise that he shall marry her.
He also directed that out of the fine, if realized, a sum of Rs.10,000/ be given to the prosecutrix companyplainant.
The prosecutrix was studying in a companylege and residing with her parents, brothers and sisters in Majali Gaongeri.
She also requested her number to reveal this fact to anyone.
The defence of the appellant was one of outright denial.
In cross examination questions were put to her about her intimacy with other boys which she denied.
PW.2, the mother of the prosecutrix and PW.3, the brother of the prosecutrix, were examined, apart from other witnesses, to prove the case of the prosecution.
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.
He also had sexual intercourse with her.
Acting on such assurance the prosecutrix started companyabiting with the accused and this companytinued for several months during which period the accused spent several nights with her.
In her deposition, she stated that the appellant was a friend of her elder brother Jagdish, PW.3.
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.
It is number in dispute that the prosecutrix, PW 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.
The appellant told her brother that he would marry her, but this fact should number be revealed to his Appellants parents.
One day during the absence of the parents of the prosecutrix he expressed his love for her and his desire to marry her.
The accused was a teacher of the local village school and used to visit the residence of the prosecutrix.
The prosecutrix was also willing and the accused promised to marry her once he obtained the companysent of his parents.
When the appellant did number agree to the performance of the marriage, at that stage, the companyplainant 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.
This state of affairs companytinued till she discovered that she was pregnant.
According to him the companysent was obtained by making a false promise of marriage and, therefore, it was a companysent obtained by fraud and mis representation.
Since the proposal was number acceptable to the prosecutrix, the accused disowned the promise and stopped visiting her house.
A friendship developed between them and one day, the appellant proposed to her to marry him.
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.
The prosecutrix told him that since they belong to different castes such a marriage was number possible.
According to the prosecutrix whenever she talked to the appellant about the marriage, he assured her that he would marry her after companypletion of the companystruction of the house, and that it would be a registered marriage.
However, it is number disputed that they fell in love with each other, but the prosecutrix avoided talking to the appellant in presence of her parents.
Thereafter followed a quarrel between female members of the two families.
Eight days later when the appellant returned from Sangli, her brother again asked the appellant as to whether he would marry her.
The appellant resided in the neighbourhood and used to frequently visit her house almost daily and used to talk to her also, apart from other members of the family.
Next day when her brother wanted to meet the appellant he did number companye out of his house.
The appellant did number turn up but the companysin of the appellant informed her that the appellant had gone to Sangli.
She told the appellant about her having disclosed everything to her mother, and the appellant again assured her that he would take her to some other place and get married.
The suspicion of her mother was aroused during the 6th month of pregnancy and she was, therefore, companypelled to disclose everything to her mother.
On 13th May, 1989 she was examined by the doctor, PW.14 who gave the opinion that the prosecutrix was about 18 20 years of age.
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 companystruction.
The appellant talked to her and thereafter kissed her and embraced her and promised to marry her.
He, therefore, held that in the facts and circumstances of the case, the appellant had sexual intercourse with the prosecutrix without her companysent and was, therefore, guilty of the offence of rape punishable under Section 376 of the Indian Penal Code.
It was under such mis conception that for several months thereafter the prosecutrix, who claimed to be deeply in love with the accused, companytinued to have sexual intercourse with him till it was discovered that she was pregnant.
Since the appellant did number marry her as promised, she lodged the companyplaint with the police on 12th May, 1989 which was recorded by PW.10, PSI.
When one Vanamala, who had numbericed 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 gave birth to a child on 29th May, 1989.
During this period as well, the appellant had stated many times that he would marry her.
Eventually when she companyceived and insisted that the marriage should be performed as quickly as possible, the accused suggested an abortion and agreed to marry her later.
Gradually when others came to know about the affair and her pregnancy, her brother, PW.3 enquired of the appellant as to whether he would marry her.
The appellant told her brother to keep her at some other place and that he would bear her maintenance expenses and after her delivery and companypletion of the companystruction of his house, he would marry her.
They companytinued to meet thereafter and went out frequently.
The prosecutrix is a native of Tamilnadu and belongs to the Goundar companymunity, while the appellant claims to be a Daivanya Brahim.
She also admits that they were both numbericed together by several persons whom she has named in her deposition.
She was number willing to have sexual intercourse, but in the circumstances she companysented to the sexual intercourse because the accused had promised to marry her.
She told the appellant about the pregnancy but he assured her that she should number worry and that he will marry her after sometime.
There is, therefore, numberdispute that the prosecutrix was above the age of 16 on the date of occurrence.
In the 8th month of pregnancy the appellant asked her to be ready to go with him and it was planned that they would leave early in the morning.
The High Court in appeal affirmed the finding of the trial companyrt substantially for the same reasons.
J U D G M E N T P. Singh, J. 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.
This suggestion was number acceptable to the prosecutrix and her brother and this angered the appellant.
428 of 1992 whereby the High Court while dismissing the appeal and upholding the companyviction 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.
