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Friday, September 20, 2013

whether the consent given by woman believing the man’s promise to marry her, is a consent which excludes the offence of rape. = Section 375 IPC defines the expression “rape”, which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though, does not define “consent”, but describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. = where the accused had assured the prosecutrix that he would marry her and had sexual affair, which was repeated on several occasions as well. But he did not marry and she became pregnant. That was a case where there was delay of eight months in filing the complaint. The accused was given the benefit of doubt holding that it would not be possible to conclude that the alleged sexual act was committed without the consent of the prosecutrix. 18. We have already referred to the evidence of PW2 to PW4 and that their consistent version is that PW2 had previous acquaintance with the accused being her elder brother’s friend for a period of more than two years before the date of incident. The place of the alleged incident and the time is very crucial, so for as this case is concerned. It was early morning at 8.30 AM and the place of the alleged incident was on the side of a public road. If she had made any semblance of resistance or made any hue and cry it would have attracted large number of people from the locality. Further the first information report, as already indicated, was lodged after a period of 10 months of the alleged incident. All these factors cast some shadow of doubt on the version of PW2.=The trial Court as well as the High Court has committed an error in holding that the accused is guilty of the offence punishable under Section 376 IPC. In such circumstances, we are inclined to allow this appeal and set aside the conviction and sentence imposed on the appellant and order accordingly.

                 published in  http://judis.nic.in/supremecourt/imgst.aspx?filename=40795                                             
 REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                     CRIMINAL APPEAL NO.  1467  OF 2013
                [Arising out of SLP (Crl.) No. 3093 of 2012]


Kaini Rajan                                              .. Appellant

                                   Versus

State of Kerala                                          .. Respondent


                               J U D G M E N T


K. S. Radhakrishnan, J.


      Leave granted.


2.    This appeal has been filed by the accused who  was  convicted  for  an
offence punishable under Section 376 IPC and sentenced to  undergo  Rigorous
Imprisonment for seven years.  Facts leading to this appeal are as follows:

3.     PW2, the prosecutrix, was employed in  a  Khadi  Centre,  Kayoor  and
residing  at  Arakachal  along  with  her  parents,  brothers  and  sisters.
According to the prosecution, on 17.9.1997 at about 8.30 AM,  when  she  was
proceeding to the Khadi Centre from her house, the accused, a friend of  her
brother, caught hold of her by hand and forcibly  took  her  to  the  nearby
property of one Karunakaran and committed rape on her, without her  consent.
  She tried to make a hue and cry,  but  was  silenced  by  the  accused  by
stating that he would marry her.  Even after this incident,  he  had  sexual
relationship with her on more than one occasions.

4.    PW2, later, became pregnant and gave birth to a boy  on  24.6.1998  in
the Government Hospital, Payyannur.   Accused not only not kept his  promise
to marry her, but even disputed the  paternity  of  the  child.    PW2  then
lodged a complaint  on  26.7.1998  before  the  Assistant  Sub-Inspector  of
Police, Cheemeni Police Station and on the basis of that  complaint,  police
registered Crime No. 64 of 1998.  After investigation, the  police  filed  a
report charging  offences  under  Sections  376  and  417  IPC  against  the
accused.   The case was tried by the Additional Sessions  Judge,  Kasaragod.
  From the side of the prosecution, PWs1 to 8 were examined and  Exh.  P1-P4
were marked.  When questioned under Section 313 Cr.P.C., the accused  denied
all incriminating evidence.

5.    PW2 deposed that she had previous acquaintance with the accused  being
his brother’s friend. 
 But, on the date of the  incident,  even  though  she
made a hue and cry,  she  was  threatened  and  told  not  to  disclose  the
incident to anybody and also made to believe that he would marry her.   
PW3,
mother of PW2, as well as PW4, the father, deposed that they  came  to  know
of the incident only when PW2 became pregnant and only  after  the  delivery
of the child they approached the police station to lodge a complaint.

6.    The trial Court after appreciating the evidence  took  the  view  that
subsequent contact of the parties cannot be  taken  as  a  ground  to  infer
consent for the incident, which occurred in August 1997.   
The  trial  Court
also noticed that the accused had spoiled the future  of  PW2  and  disputed
the paternity of the child and he cannot escape on the loophole of  consent.
The trial Court, however, found nothing to attract Section  417  IPC,  but
convicted the accused under Section 376 IPC and  sentenced  to  him  undergo
rigorous imprisonment for seven years, together with a fine  of  Rs.25,000/-
with default clause.

7.    The accused took up the matter in appeal  before  the  High  Court  in
Criminal Appeal No. 1139 of 2003.  The High Court noticed that both  in  the
chief-examination as well as in the cross-examination PW2  has  stated  that
the initial sexual act was without her consent,  and  though  she  tried  to
resist, she was threatened that she would be killed  and  that  the  accused
promised that he would marry her.  
PW2, according to the High Court, had  no
reason or  motive  to  falsify  the  accused  and  there  is  no  reason  to
disbelieve version of PW2 regarding the paternity of the  child.  
The  High
Court upheld the order of conviction  and  sentence  awarded  by  the  trial
Court and dismissed the criminal appeal, against which this appeal has  been
filed.

8.    We may indicate that from the reading of the judgments  of  the  Trial
Court as well as the High Court, it becomes  clear  that  even  as  per  the
version of the prosecutrix, on few occasions there  were  sexual  encounters
between the  parties,  after  the  first  allegd  incident  in  1997.    She
accepted that they were consensual and she was a willing party,  though  she
did so on the promise of the appellant that he would marry her.  In  respect
of these subsequent acts between the  parties,  the  appellant  was  charged
with the offence under Section 417 IPC but exonerated  by  the  trial  Court
itself.  The conviction is related to the first incident  which  is  treated
as rape, believing the prosecution version that it was forcible and  without
the consent of the prosecutrix.  Entire case  is  to  be  examined  on  this
limited aspect.

9.    Shri  E.M.S.  Anam,  learned  counsel  appearing  for  the  appellant,
submitted that it is evident from the FIR as well as  the  evidence  of  PW2
that grievance of PW2 was mainly against the  breaking  of  the  promise  of
marriage alleged to have been made by the accused and  there  is  absolutely
no independent evidence to show that the alleged sexual act, stated to  have
been committed on 17.9.1997 was without her consent.  Learned  counsel  also
submitted that absence of injuries on PW2 and the accused,  would  rule  out
forcible intercourse without consent.    If she had made any  hue  and  cry,
that would have been heard by the neighbours of the locality  and  none  was
examined by the prosecution.   Learned counsel submitted that the very  fact
that no one had seen the incident or heard any hue or cry for help,  it  has
to be presumed that no  such  incident  had  occurred,  as  alleged  by  the
prosecution.  Learned counsel also submitted that there  is  a  considerable
delay in lodging the FIR and also no DNA test was conducted even  after  the
accused had disputed the paternity of  the  child.    Learned  counsel  also
submitted that the conviction is only based on the testimony  of  PW2  which
cannot be relied on in the absence of any corroboration, especially  in  the
facts and circumstances of the present case.

10.   Shri K. K. Sudheesh, learned counsel appearing for the State,  on  the
other hand, contended that there  is  no  reason  to  disturb  the  findings
recorded by the trial Court, affirmed by the High  Court.   Learned  counsel
submitted that, in a case of this nature, it is difficult to get any  direct
evidence or eye-witnesses, especially when PW2 has stated that on  the  date
of the incident, even though she tried to resist, she  was  threatened  that
she would be killed  and  that  the  accused  had  promised  to  marry  her.
Learned counsel pointed out that the evidence of PW2 that the  first  sexual
act was committed by the  accused  without  her  consent,  can  be  accepted
safely even without any corroboration.

11.   We have three crucial witnesses in this case.  The first and  foremost
is the prosecutrix herself.  We have gone through her  evidence  with  great
care.  She has stated in her cross-examination  that  the  accused  used  to
come to her house to meet her elder brother, quite often.    In  the  cross-
examination also, she has deposed that the  accused  used  to  come  to  her
house frequently since two to three years prior to the date of the  incident
and that she used to talk to the accused.  PW3,  mother  of  PW2,  has  also
deposed in the cross-examination that  the  accused  is  her  son’s  friend.
PW4, father of PW2, has also deposed that the accused is the friend  of  his
son.  Evidence of PW2 to PW4 would, therefore,  clearly  indicate  that  the
accused was having close acquaintance with the family of PW2 and he was  not
a stranger to her on the date of the incident.

 12.  Section 375 IPC defines the expression “rape”, which   indicates  that
 the first clause operates, 
where the woman is in possession of her  senses,
 and therefore, capable of consenting but the act is done against her  will;
 and 
second, 
where it is done without her consent;  
the  third,  fourth  and fifth, 
when there is consent, but it is not such a consent as  excuses  the offender, because it is obtained by putting her on any person  in whom  she is interested in fear of death or of hurt.   
The  expression  “against  her will” means that the act must have been done in spite of the opposition  of the woman. 
An inference as to consent can  be  drawn  if  only  based  on
 evidence or probabilities of the case.   
“Consent” is also stated to be  an act of reason coupled with deliberation.  
It denotes an active will in  the mind of a person to permit the doing of an act complained of.   
Section  90
 IPC refers to the expression “consent”.    
Section  90,  though,  does  not
 define “consent”, but describes what is not consent.   “Consent”,  for  the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge  of  the  significance  and moral quality of the act  but  after  having  fully  exercised  the  choice between resistance and assent.   
Whether there was consent or not, is to be
 ascertained only on a careful study of  all  relevant  circumstances.  
[See State v. Mango Ram (2000) 7 SCC 224]

13.   We are, in this case, concerned with a situation
where  the  incident
alleged to have occurred at 8.30 AM in day light and at  a  place  near  the
compound of one Karunakaran, not within the four  walls  of  a  house  or  a
building.   Accused was not a stranger.  
 The  prosecutrix  had  previous
acquaintance with the accused or else in all  probability  she  would   have
resisted forcefully, attracting passersby or people from the  neighbourhood.
She has stated that she was  threatened  and  made  to  believe  that  the
accused would marry her.  
She later became pregnant and delivered  a  child,
and the paternity of the child is disputed by the accused.  FIR  was  lodged
after a period of 10 months from the date of incident.

14.   This Court examined the scope of Section 375 IPC in a case  where  the
facts have some resemblance with the one in hand.  Reference may be made  to
the judgment of this Court in Deelip Singh alias Dilip  Kumar  v.  State  of
Bihar (2005) 1 SCC 88.
In that case, this Court examined  the  meaning  and
content of the expression
“without her consent” in Section 375 IPC  as  well as 
whether the consent given by woman believing the man’s promise  to  marry her, is a consent which excludes the offence of rape.
 This Court  endorsed
the principle that a misrepresentation  as  regards  the  intention  of  the
person  seeking  consent,  i.e.  the  accused,  could  give  rise   to   the
misconception of fact.    
While applying this principle to  a  case  arising
under Section 375 IPC, this Court held that the consent given pursuant to  a
false representation that the accused intends to marry,  could  be  regarded
as consent given under misconception of  fact.   
 But  a  promise  to  marry
without anything more will not give rise to “misconception of  fact”  within
the meaning of Section 90 IPC.   
This Court further held that if, on  facts,
it is established that at the very inception of the making  of  promise  the accused did not really entertain the  intention  of  marrying  her  and  the promise to marry held out by him was a mere  hoax,  the  consent  ostensibly given by the victim will be of no avail to  the  accused  to  exculpate  him from the ambit of the second clause of Section 375 IPC.  
 In  the  facts  of
that case, this Court held, that the predominant reason which  weighed  with
her in agreeing for sexual intimacy with the accused was the hope  generated
in her of the prospect of marriage with the accused.   
The Court  held  that
she came to the decision to have a sexual affair only after being  convinced
that the accused would marry her and it is quite clear  from  her  evidence,
which is in tune with her earlier version given  in  the  first  information
report.   
The Court noticed that she was fully aware of  the  moral  quality
of the act and the inherent risk involved and that she considered  the  pros
and cons of the act.

15.   In Ramdas and Others v. State of Maharashtra (2007) 2  SCC  170,
this
Court held that the conviction in case of rape can be based  solely  on  the
testimony of the prosecutrix, but that can be  done  in  a  case  where  the
Court is convinced about the  truthfulness  of  the  prosecutrix  and  there
exist no circumstances which cast a shadow of doubt over her veracity.

16.   Vijayan v. State of Kerala (2008) 14 SCC 763  was  a  case
where  the
complaint was made by the prosecutirx after the alleged commission  of  rape
on her by the accused.  At the time of making the case, the prosecutrix  was
pregnant for about seven months.  This Court did not place reliance  on  the
sole testimony of the prosecutrix.  The Court noticed that flaw that no  DNA
test was conducted to find out whether the child was born out  of  the  said
incident and the accused was responsible for the said child.

17.   K. P. Thimmappa Gowda v. State of Karnataka (2011) 14 SCC 475,  was  a
case
where the accused had assured the prosecutrix that he would  marry  her
and had sexual affair, which was repeated  on  several  occasions  as  well.
But he did not marry and she became pregnant.   
That was a case where  there
was delay of eight months in filing the complaint.  
The  accused  was  given
the benefit of doubt holding that it would not be possible to conclude  that
the  alleged  sexual  act  was  committed  without  the   consent   of   the
prosecutrix.

18.   We have already referred to the evidence of PW2 to PW4 and that  their
consistent version is that 
PW2 had previous acquaintance  with  the  accused
being her elder brother’s friend for a period of more than two years  before
the date of incident.  
The place of the alleged incident  and  the  time  is
very crucial, so for as this case is concerned.  It  was  early  morning  at
8.30 AM and the place of the alleged incident was on the side  of  a  public
road.  
If she had made any semblance of resistance or made any hue  and  cry
it would have attracted large number of people from the  locality.  
 Further
the first information report, as  already  indicated,  was  lodged  after  a
period of 10 months of the alleged incident.  
All these  factors  cast  some shadow of doubt on the version of PW2.

19.   Behaviour of the parents of the prosecutirix viz.  PW3  and  PW4  also
appears to be strange.  
On their evidence they  stated  that  they  came  to
know about the relations between the  appellant  and  the  prosecutrix  when
they found her pregnant.  
Prosecutrix had told them that the  appellant  had
agreed to marry her.  
They  knew  the  appellant  and  his  family  already.
However, there is not even a whisper that they approached the  appellant  or
his family members for marrying the prosecutrix.  
They straightaway went  to
the police station to lodge the report, that too  after  the  birth  of  the
child.  
All these factors cast a doubt  on  the  prosecution  version.   
The
version of victim, in rape commands great respect  and  acceptability,  but,
if there are some circumstances which cast some doubt in  the  mind  of  the
court of the veracity of the victim’s evidence, then,  it  is  not  safe  to
rely on the uncorroborated version of the victim of rape.

20.   The trial Court as well as the High Court has committed  an  error  in
holding that the accused is guilty of the offence punishable  under  Section
376 IPC.    In such circumstances, we are inclined to allow this appeal  and
set aside the conviction and sentence imposed on  the  appellant  and  order
accordingly.


                                                             ………………..……..…J.
                                                                     (K.S.
                               Radhakrishnan)


                                                               ………………………….J.
                                                 (A.K. Sikri)
New Delhi,
September 19, 2013

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