A. P. RAVANI, J. ( 1 ) HUMAN weakness or wickedness; either of the two or both of them together may be the cause of sexual offences. If the offence is on account of wickedness the accused naturally deserves no sympathy. ( 2 ) THE appellant-accused was charged for offence under Section 376 of the Indian Penal Code on the allegation that on the night of April 24 1983 between 9. 00 and 10. 30 p. m. he committed rape on the prosecutrix S (P. W. 1 Exhibit 12) on the boundary of village Doliya District Surendranagar and thereby committed offence under Section 376 of the Indian Penal Code. The learned Sessions Judge held the accused guilty of the offence charged against him and ordered him to undergo R. I. for seven years. The appellantaccused has challenged the legality and validity of the judgment and order of conviction and sentence in this appeal. ( 3 ) COUNSEL for the appellant-accused submitted that as per the medical evidence the girl was used to sexual intercourse and therefore it should be held that the sexual intercourse by the accused was with the consent of the girl. The argument has its roots in the notions prevailing in male-dominated society having feudalist traits. It is not understood how it can even be suggested that on the basis of the circumstance that a woman used to sexual intercourse would be a consenting party to a forcible sexual assault and intercourse. This argument may be tested by counter-posing a question: If an accused a male able-bodied person is used to sexual intercourse and is charged of an offence of some sexual assault can it be inferred or can it be argued that because he is used to sexual intercourse he must have committed sexual assault or intercourse against the will of the girl or woman ? If this circumstance cannot be taken against a male person then it is not understood how a similar circumstance can be advanced as an argument to show that the girl must be a consenting party to the forcible sexual intercourse? Therefore the circumstance that as per the medical evidence the girl was used to sexual intercourse by itself does not carry the matter either way. A girl or a woman either married or unmarried may be promiscuous in her sexual behaviour and relations. Therefore the circumstance that as per the medical evidence the girl was used to sexual intercourse by itself does not carry the matter either way. A girl or a woman either married or unmarried may be promiscuous in her sexual behaviour and relations. Even so she has a right to refuse to submit herself to sexual intercourse to anyone and everyone. Once a girl or woman is used to sexual intercourse she does not become a vulnerable object or prey for being sexually assaulted. Because she is promiscuous it cannot be inferred that she must have given consent to the alleged forcible sexual intercourse. At the most it is a relevant circumstance which has to be taken into consideration by the court. ( 4 ) NOW in the background of the facts and circumstances of this case the 480 argument may be examined. First of all this was not the case put forth by the defence. The defence was that of total denial and the defence alleged that the entire prosecution case was cooked up because of the enmity with one Thakarshi who made Mayaram the brother of the girl S and the girl herself; instruments in filing the false case against the accused. It is true that this submission cannot be rejected on the ground that the defence was that of total denial. But the defence of the accused can have bearing while considering this argument advanced on behalf of the accused. ( 5 ) AS discussed hereinabove the accused was in a position of a de facto guardian of the prosecutrix. He was looking after the family of the girl because there was no able-bodied male member in the family at village Vakhatpar. Both the brothers of the girl were staying at Rajkot. The family was in need of the help of some male person who could guide them with regard to the education of the girl and with regard to other matters. It was the prosecution case that the accused played trick and induced the girl to accompany him to come to village Vakhatpar. This is the background in which the question of consent has got to be examined. The accused was in the dominating position. The accused at the relevant time was aged about 45 years while the prosecutrix had hardly completed 16 years of age. This is the background in which the question of consent has got to be examined. The accused was in the dominating position. The accused at the relevant time was aged about 45 years while the prosecutrix had hardly completed 16 years of age. On the date of the incident she was 16 years and 2 1/2 months old. (Her date of birth is January 4 1967 as disclosed in the birth register Exhibit 20 read with the deposition of Jesing Exhibit 19 and vaccination register Exhibit 21 ). If a person aged about 45 who was in touch with the family for last about two to three years before the date of the incident and who was acting almost like a father of the girl induces her to accompany him under the pretext that her father was ill and that she was required to visit her father even in the midst of the examination and while on the way to village Vakhatpur during night time at about 10-30 or 11-00 if she is made a victim of sexual assault it may be that she might not have resisted or she might have even passively suffered the assault. This would not by any stretch of reasoning amount to free consent. On the contrary it would amount to obtaining consent by deception. Therefore the argument based on the ground that the girl may be a consenting party to the sexual intercourse and therefore the accused should be given the benefit of doubt has also no merit. ( 6 ) COUNSEL for the appellantaccused has submitted that the possibility of false charges of rape being made cannot be ruled out. He has relied on a passage under the caption False Charges from Modis Medical Jurisprudence and Toxicology (20th Edition p. 339 ). The learned author has referred to certain incidents of false charges of rape. The counsel for the appellant has relied on these incidents and submitted that in this case it should be held that the girl has made false charge against him. This is a refined or sophisticated version of the argument which was raised before the learned Sessions Judge by the accused. Before the learned Sessions Judge it was argued by the counsel for the defence that the prosecutrix belonged to backward class and therefore she would easily make false allegations against the accused. This is a refined or sophisticated version of the argument which was raised before the learned Sessions Judge by the accused. Before the learned Sessions Judge it was argued by the counsel for the defence that the prosecutrix belonged to backward class and therefore she would easily make false allegations against the accused. In para 47 of the judgment the learned Sessions Judge has dealt with this argument and has rejected the same. The learned Sessions Judge has rightly stated that there was no evidence to show that the girl was of loose character and 481 that there were any complaints against her on such count either before the Wadhvan Vikas Vidyalaya or before her parents. ( 7 ) THE aforesaid argument regarding false charges being made by the prosecutrix reflects the squint-eyed and/ or coloured glass approach of the upper elites of the society towards the poor and backward class people of the country. It may be noted that moral character and such other virtues are not the monopoly of rich educated and so-called upper caste elites in the society. The backward class people are generally poor in material resources but usually very rich in terms of character. For them violation of law or that of social norms is not the culture of their life. They are afraid of violating social norms and traditions. They do not know what the law is and they never dream of breaking the law. They cannot afford to lead the life or behave in any manner disregarding the social sanctions. Violation of social norms and disregard of the social sanctions may be possible for the few fortunates rolling into wealth because they can win the respect of others with the help of their money power while this is not possible for backward and poorer class of people. In the instant case the prosecutrix and her family members belong to extremely poor strata of the society. They are staying in a village. They belong to a tradition-bound society. Her brothers are leading honest life by engaging themselves as labourers. The family is trying to give education to the youngest daughter the prosecutrix in the case. Why should the family make false charge and thereby invite injury upon itself and ruin the career of the girl. In the instant case the observations made by the Supreme Court in Boginbhais case (supra) are more appropriate. The family is trying to give education to the youngest daughter the prosecutrix in the case. Why should the family make false charge and thereby invite injury upon itself and ruin the career of the girl. In the instant case the observations made by the Supreme Court in Boginbhais case (supra) are more appropriate. As observed by the Supreme Court in Indian conditions rarely will a girl or a woman make a false allegation of sexual assault on account of any such factors which may be possible in the context of advanced societies of western world. The Supreme Court has observed: Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites. Such is not the case of the prosecutrix and her parents and brothers. It is highly improbable that the girl and her relatives would ever invent false charges against the accused by inviting dishonour and disgrace on herself and on the family. Such a course would mar her future careeer. By inventing false charges she would inflict injury on herself. No sane person would adopt such a course even for the purpose of taking vengeance if there be any. Therefore reliance placed on the aforesaid passage of Medical Jurisprudence and Toxicology by Modi and the argument advanced by the counsel for the appellant-accused on that basis has got to be rejected. ( 8 ) NO other contention is raised with regard to the merits of the case. ( 9 ) HOWEVER lastly the counsel for the appellant-accused submitted that this Court should take a lenient view and the sentence imposed on the accused should be reduced. In the facts and circumstances of the case we see no reason to reduce the sentence imposed on the accused. The accused was in the position of a de facto guardian of the girl. He has misused the position and the confidence reposed in him by the parents of the girl. The root cause of the offence does not seem to be human weakness but it appears to be wickedness. Therefore the accused deserves no sympathy. Applle dismissed. .