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Saturday, April 5, 2014

Sec. 90 of I.P.C. , Sec.376, 417, and 419 I.P.C.- Marriage with already married man and living with him for some time - disputes arose due to elders interference No Rape 376 , No 417 and 419 of I.P.C.- Trial court punished under Rape , High court modified and set aside the punishment under sec. 417 and 419 and punished - both courts applied the law wrongly to the set of facts - Apex court held that We are in no manner of doubt that in the conspectus that unfolds itself in the present case, the prosecutrix was aware that the Appellant was already married but, possibly because a polygamous relationship was not anathema to her because of the faith which she adheres to, the prosecutrix was willing to start a home with the Appellant. In these premises, it cannot be concluded beyond reasonable doubt that the Appellant is culpable for the offence of rape; nay, reason relentlessly points to the commission of consensual sexual relationship, which was brought to an abrupt end by the appearance in the scene of the uncle of the prosecutrix. Rape is indeed a reprehensible act and every perpetrator should be punished expeditiously, severally and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt. In our deduction there was no seduction; just two persons fatally in love, their youth blinding them to the futility of their relationship.= VINOD KUMAR …..APPELLANT .…..APPELLANT Versus STATE OF KERALA …..RESPONDENT=2014 ( Apr.Part ) judis.nic.in/supremecourt/filename=41385

Sec. 90 of I.P.C. , Sec.376, 417, and  419 I.P.C.- Marriage with already married man and living with him for some time - disputes arose due to elders interference No Rape 376 , No 417 and 419 of I.P.C.- Trial court punished under Rape , High court modified  and set aside the punishment  under sec. 417 and 419 and punished  - both courts applied the law wrongly to the set of facts - Apex court held that We are in no manner of doubt  that  in  the  conspectus  that  unfolds itself in the present case,  the prosecutrix was  aware  that  the  Appellant was already married but, possibly because a polygamous relationship was  not anathema to her because of the faith which she adheres to,  the  prosecutrix was willing to start a home with the  Appellant.    In  these  premises,  it cannot be concluded beyond reasonable doubt that the Appellant  is  culpable for the offence of rape; nay, reason relentlessly  points to the  commission of  consensual sexual relationship, which was brought to an  abrupt  end  by the appearance in the scene of the  uncle  of  the  prosecutrix.    
Rape  is indeed  a  reprehensible  act  and  every  perpetrator  should  be  punished expeditiously, severally and strictly.    However,  this  is  only  possible when guilt has been proved  beyond  reasonable  doubt.    In  our  deduction there was no seduction; just  two  persons  fatally  in  love,  their  youth blinding them to the futility of their relationship.=
conviction  of
the Appellant under Section 376 of the Indian  Penal  Code  (IPC),  although
the findings of the two Courts substantially differ.   
The  High  Court  has
set aside his conviction  under  Sections  417  and  419  IPC,  whereas  the
Additional District & Sessions Judge, Thiruvanthapuram,  had  sentenced  the
Appellant to Rigorous Imprisonment for a period of  seven years and  a  fine
of Rs.25,000/- and in  default  of  payment  thereof,  to  undergo  Rigorous
Imprisonment for three years.   
In the Impugned Order  the  High  Court  has
reduced this sentence to Rigorous Imprisonment for a period  of  four  years
but, while maintaining the fine of Rs.25,000/-, has ordered that in  default
of its deposit, the Appellant would suffer  Rigorous  Imprisonment  for  the
reduced period  of  six  months.    
At  the  commencement  of  the  impugned
Judgment, the learned  Judge  has  aptly  observed  that  what  began  as  a
telephonic friendship  strengthened  into  close  acquaintance  between  the
Appellant and  the  prosecutrix  (PW2)  which  later  blossomed  into  love,
eventually leading them to elope.   
Despite  arriving  at  this  conclusion,
the learned Judge has nevertheless termed PW2 as the victim, which seems  to
us to be an incongruous factual  finding  leading  to  a  misconception  and
consequently a misapplication of the law.=

Deelip Singh vs State of Bihar 2005 (1) SCC 88,  is
extracted:
      “ 19. The factors set out in 
the first part of Section 90 are from the
      point of view of the victim. 
The second part of Section 90 enacts  the
      corresponding provision from the point of  view  of  the  accused.  
It
      envisages that the accused too has knowledge or has reason to  believe
      that the consent was given by the victim in  consequence  of  fear  of
      injury or misconception of fact. 
Thus, the second part  lays  emphasis
      on the knowledge or reasonable belief of the person  who  obtains  the
      tainted  consent.  
The  requirements  of  both  the  parts  should  be
      cumulatively satisfied. In other words, the court has to  see 
 whether
      the person giving the consent had given it under  fear  of  injury  or
      misconception of fact and the court should also be satisfied that  the
      person doing the act i.e. the alleged offender, is  conscious  of  the
      fact or should  have  reason  to  think  that  but  for  the  fear  or
      misconception, the consent would not have  been  given.  This  is  the
      scheme of Section 90 which is couched in negative terminology”.


10    We are in no manner of doubt  that  in  the  conspectus  that  unfolds
itself in the present case, 
the prosecutrix was  aware  that  the  Appellant
was already married but, possibly because a polygamous relationship was  not
anathema to her because of the faith which she adheres to,  the  prosecutrix
was willing to start a home with the  Appellant.    
In  these  premises,  it
cannot be concluded beyond reasonable doubt that the Appellant  is  culpable
for the offence of rape; nay, reason relentlessly  points to the  commission
of  consensual sexual relationship, which was brought to an  abrupt  end  by
the appearance in the scene of the  uncle  of  the  prosecutrix.    
Rape  is
indeed  a  reprehensible  act  and  every  perpetrator  should  be  punished
expeditiously, severally and strictly.    However,  this  is  only  possible
when guilt has been proved  beyond  reasonable  doubt.    In  our  deduction
there was no seduction; just  two  persons  fatally  in  love,  their  youth
blinding them to the futility of their relationship.
11    The Appellant is not an innocent man inasmuch as  he  had  willy-nilly
entered into a relationship with  the  prosecutrix,   in  violation  of  his
matrimonial vows and his paternal duties and responsibilities.   
If  he  has
suffered incarceration for an offence for  which  he  is  not  culpable,  he
should realise that retribution in another form has duly visited him.    
 It
can only be hoped that  his  wife  Chitralekha  will  find  in  herself  the
fortitude to forgive so that their  family  may  be  united  again  and  may
rediscover happiness, as avowedly the prosecutrix has found.
12    It is in these premises that we  allow the Appeal.   
We set aside  the
conviction of the Appellant  and  direct  that  he  be  released  forthwith.

      2014 ( Apr.Part ) judis.nic.in/supremecourt/filename=41385
K.S. RADHAKRISHNAN, VIKRAMAJIT SEN
                                                            REPORTABLE


                        IN THE SUPREME COURT OF INDIA


                       CRIMINAL APPELLATE JURISDICTION


                     CRIMINAL APPEAL No.         OF 2014
                 [Arising out of SLP(Crl.) No.9014 of 2013]


VINOD                                                                  KUMAR
…..APPELLANT
.…..APPELLANT


            Versus


STATE OF KERALA                                           …..RESPONDENT






                               J U D G M E N T






VIKRAMAJIT SEN,J.



1     Leave granted.
2      In this Appeal we are confronted with the  concurrent  conviction  of
the Appellant under Section 376 of the Indian  Penal  Code  (IPC),  although
the findings of the two Courts substantially differ.   The  High  Court  has
set aside his conviction  under  Sections  417  and  419  IPC,  whereas  the
Additional District & Sessions Judge, Thiruvanthapuram,  had  sentenced  the
Appellant to Rigorous Imprisonment for a period of  seven years and  a  fine
of Rs.25,000/- and in  default  of  payment  thereof,  to  undergo  Rigorous
Imprisonment for three years.   In the Impugned Order  the  High  Court  has
reduced this sentence to Rigorous Imprisonment for a period  of  four  years
but, while maintaining the fine of Rs.25,000/-, has ordered that in  default
of its deposit, the Appellant would suffer  Rigorous  Imprisonment  for  the
reduced period  of  six  months.    At  the  commencement  of  the  impugned
Judgment, the learned  Judge  has  aptly  observed  that  what  began  as  a
telephonic friendship  strengthened  into  close  acquaintance  between  the
Appellant and  the  prosecutrix  (PW2)  which  later  blossomed  into  love,
eventually leading them to elope.   Despite  arriving  at  this  conclusion,
the learned Judge has nevertheless termed PW2 as the victim, which seems  to
us to be an incongruous factual  finding  leading  to  a  misconception  and
consequently a misapplication of the law.
3     So far as the facts are concerned, it is uncontroverted  that  at  the
material time PW2 was twenty years old and was studying  in  College  for  a
Degree and that she appeared in and successfully wrote her last  examination
on 19.4.2000, the fateful day.   Thereafter, when she did  not  return  home
from college, her father conducted a  search  which  proved  to  be  futile.
Accordingly, on the  next  day,  20th  April,  2000,  he  lodged  the  First
Information Report, Exhibit P-1.   It transpires that the prosecutrix  (PW2)
has since got married on 11th March, 2001 and at the time of her  deposition
had already been blessed with children.  It is also not controverted that  a
document was registered with Sub-Registrar Office Kazhakoottam  (SRO)  which
has been variously nomenclatured,  including  as  a  marriage  registration.
The Appellant’s case is that he had met PW2 in the  University  College  and
after some meetings and their getting to know  each  other  better  she  had
threatened to commit suicide if he did not marry her;  that  he  immediately
informed her that he was already married and had two children  and  that  he
had even given his marriage photographs to her, which she had  entrusted  to
her friend,  Fathima; that she asked him  to  divorce  his  wife;  that  she
informed him that since her religion permitted a man  to  marry  four  times
at least some documentation should be prepared to  evidence  their  decision
and compact to marry each other.   It has been contended  by  the  Appellant
that sexual intercourse transpired post 19.4.2000  only  and  was  with  the
free consent of both persons.   The  Trial  Court  had  applied  the  Fourth
Explanation to Section 375  and,  thereafter,  held  the  Appellant  guilty,
inter alia,  of the commission of rape.
4     After considering the evidence of  PW2  the  High  Court  has  notably
concluded that there was no compulsion from the side  of  the  Appellant  at
any stage, including when the prosecutrix had  accompanied  him  on  earlier
occasion on a day trip to Ponmudi,  when  significantly  no  room  had  been
booked and they had taken food in KTDC Ponmudi.   PW2 has adopted the  stand
that the Appellant had not disclosed the factum of his being a  married  man
and, contrary to the say of the Appellant, that he had threatened to  commit
suicide if she refused to marry him.  She has deposed that he had  told  her
“that after conversion marriage can be performed”   but  upon  inquiry  from
the Imam he  was  told  that  his  conversion  was  not  possible  just  for
marriage,  and  that  conversion  was  possible  only  after  a   registered
marriage.  The prosecutrix has further testified that on the  insistence  of
the Appellant, she had on the morning of 19th April,  2000  accompanied  him
to the office of the Registrar, where  she  had  signed  a  paper    in  the
Maruti Van which was driven by his driver and in  which  the  latter’s  wife
and child were also seated, after which she  was  dropped  back  to  College
where she wrote her last examination, in the  event  with  success.    After
the examination, she accompanied by all these persons went to Katela,  where
fully appointed and furnished  premises  had  been  taken  on  rent  by  the
Appellant; and that  the  next  day  she  departed  for  Chavra,  where  the
Appellant and she stayed in Room No.106 in the Mella Lodge.      From  there
they left for Coimbatore and, thereafter, to Ooty,  where  they  stayed  for
two days, i.e. 22nd and 23rd April,  2000;  thereafter,  they  stayed  in  a
house belonging to relatives of the Appellant in Neelagiri for  three  days.
 She has deposed that she had sex with the Appellant at  all  these  places.
It was then and there that her uncle Abdul  Rasheed  and  his  auto-rickshah
driver chanced upon them when they had gone  to  the  market  to  make  some
purchases.    At  that  juncture  her  uncle  Abdul  Rasheed  took  out  the
photograph of the Appellant’s marriage, a verbal altercation ensued and  the
Appellant departed in the Maruti Van.   The prosecutrix has  testified  that
“until uncle showed the photograph of A1’s marriage I never knew that he  is
already a married person, A1 never told me that he is married.  If I had  an
hint I would not have done all this.  Thinking that I am the legally  wedded
wife of A1 I used to have sexual intercourse”.   She has testified that  she
told her friend and confidant, Fathima, about the Appellant speaking to  her
on the phone  and  equally  importantly,  that  on  her  elopement  she  had
informed her that she was safely staying at Katela.   As  already  recorded,
the case of the defence is that the photograph of the  Appellant’s  marriage
was subsequently entrusted by the prosecutrix to  Fathima.    Significantly,
Fathima has not been examined by  the  prosecution  and  instead,  the  ill-
founded contention has been articulated by learned State  Counsel  that  she
could and should have been examined by the Appellant.  It is  her  say  that
although she had signed a document which was on stamp paper of  Rs.50/-  and
had appeared before the Registrar.  She was not aware of its contents.   The
prosecution case is that PW2, after her initial  reluctance,  was  persuaded
to immediately accompany the Appellant for the purpose  of  registration  of
marriage.   It was in these circumstances that she  believed  that  she  was
the legally wedded wife of the Appellant.  As already noted physical  sexual
relations between the couple have not  been  denied.     She  has  testified
that had she been aware that the accused was already married, she would  not
have ventured into the relationship.
5     Obviously, the statement  of  PW2  forms  the  fulcrum  of  the  case.
According to her the Appellant  had  introduced  himself  as  a  student  of
B.C.M. College, Kottayam and after they had daily telephonic  conversations,
they consented to meet each other in person.   On 17.1.2000 she  accompanied
him to Ponmudi, where he proposed marriage to her  and  they  were  in  each
others company from 11.00  a.m.  to  4.30  p.m.     As  already  noted,  the
prosecutrix  has,  inter  alia,  stated  that  -  “He  told  me  that  after
conversion marriage can be performed and to know about it went to meet  Imam
of  Palayam Mosque who told him that conversion is  not  possible  just  for
marriage and therefore  conversion  is  possible  only  after  a  registered
marriage.   Thus I agreed for marriage.    He  told  me  that  the  marriage
would be registered on 19th.”    In our opinion  this  statement  is  indeed
telltale.   We cannot lose perspective of the fact that the  prosecutrix  is
a  graduate  having  exercised  exemplary   steadfastness,   responsibility,
resolve and discipline in appearing in and passing her last examination  for
graduation on the very same day  when,  in  the  morning  she  had  appeared
before the Sub-Registrar for registration  of  an  agreement  for  marriage,
and, later, she had proceeded and participated in her elopement.
6      Another  significant  feature  is   that   PW4,   the   Sub-Registrar
Kazhakoottam has deposed that  he  had  registered  a  “marriage  agreement”
between the  Appellant  and  the  prosecutrix  on  19.4.2000  and  that  the
document was in the handwriting of a deed-writer named Mohana Chandran  Nair
(PW5).   In cross-examination he has stated that he had informed the  couple
that the marriage  would  not  be  complete  on  the  registration  of  that
agreement, which in his opinion  had  been  executed  by  them  without  any
hesitation and  with  their  free  consent.             So  far  as  PW5  is
concerned, we have carefully  considered  the  statements  made  by  him  in
Examination-in-Chief,  none  of  which  appears  to  run  contrary  to   the
prosecution case, yet, inexplicably he has been declared hostile.   It  will
be apposite to recall that in Rabindra Kumar Dey vs  State  of  Orissa  1976
(4) SCC 233, this Court has opined that -  “… Merely because  a  witness  in
an unguarded moment speaks the truth which may not suit the  prosecution  or
which may be favourable to the accused, the discretion to  allow  the  party
concerned to cross-examine its own witness cannot  be  allowed.    In  other
words a witness should be regarded  as  adverse  and  liable  to  be  cross-
examined by the party calling him only when the court is satisfied that  the
witness bears hostile animus against the party for whom he  is  deposing  or
that he does not appear to be willing to  tell  the  truth.    In  order  to
ascertain the intention of the witness or his conduct, the  judge  concerned
may look into the statements made by the witness  before  the  Investigating
Officer or the previous authorities to find out as to whether or  not  there
is any indication of the witness making a statement inconsistent on  a  most
material point with the one which he gave before the  previous  authorities.
 The court must, however,  distinguish  between  a  statement  made  by  the
witness by way of an unfriendly  act  and  one  which  lets  out  the  truth
without any hostile intention”.    It is also evident to us that the  cross-
examination of PW5 has the effect of weakening the prosecution  case.    All
too frequently the  cross-examiner  is  oblivious  to  the  danger  that  is
fraught  in  asking  questions  the  answers  to  which  are  not  known  or
predictable and which invariably prove to be detrimental to  his  interests.
 It seems to us that details of Sasi, the social worker who  was  a  witness
to the marriage agreement were available and being  a  relevant  witness  to
elucidate the state of mind of the  prosecutrix,  she  ought  to  have  been
examined by the prosecution.   To compound it for the prosecution, it is  in
the re-examination of  PW5  that  it  has  emerged  that  his  opinion  that
document of marriage was deficient if not  devoid  of   legal  validity  and
efficacy was conveyed to the prosecutrix by PW5 on 18.4.2000, i.e.  the  day
previous to the date of registration.    We emphasise that the testimony  of
PW5 is of importance because he has stated  that  both  the  prosecutrix  as
well as the Appellant, as also the social worker named Sasi, had  instructed
and engaged him on 18.4.2000 with regard to  the  drafting  of  the  subject
Agreement and that he had told the prosecutrix that the  registration  would
not create a legal marriage.
7     PW12, namely, Chitralekha, is the wife of  the  accused/Appellant  and
her statement is also very damaging for the prosecution inasmuch  as  before
the subject elopement, in the course of a telephone call  she  had  informed
the speaker that she was the wife of the Appellant and that the  prosecutrix
had subsequently in the course of that  conversation  disclosed    her  name
and had told PW12 that she would talk  to  the  Appellant  directly.    This
witness has also been declared hostile; and she  has  subsequently  tendered
the information that she has separated from the Appellant and is  living  in
her father’s home.   Nothing adverse to the  stance  of  the  Appellant  has
been elicited by the Public Prosecutor in her cross-examination.
8     In Kaini Rajan vs State of  Kerala  (2013)  9  SCC  113,  my  esteemed
Brother has explained the essentials and parameters of the offence  of  rape
in the extracted words,  which  renders  idle  any  further  explanation  or
elaboration:-
    “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”.


9     We are fully mindful receptive, conscious and concerned  of  the  fact
that the Appellant has been found guilty and has been punished by  both  the
Courts below for the reprehensible crime of the  rape  of  the  prosecutrix.
However, we consider that  the  verdict  manifests  a  misunderstanding  and
misapplication of the law and misreading of the  facts  unraveled   by   the
examination of the witnesses.    Firstly, the prosecutrix is a graduate  and
even otherwise is not a gullible women of feeble  intellect  as  is  evident
from her conduct in completing her  examination  successfully  even  on  the
eventful day, i.e. 19.4.2000.  In fact she has displayed mental maturity  of
an advanced and unusual scale.  We are convinced that she was aware  that  a
legal marriage could not be performed and, therefore, was  content  for  the
time being that an  agreement  for  marriage  be  executed.   Secondly,  the
testimony of PW4 and PW5 independently indicates that  the  prosecutrix  had
been made aware by knowledgeable and independent  persons  that  no  legally
efficacious marriage had occurred between the couple.   Thirdly, this  state
of affairs can   reasonably be deduced  from the fact that, possibly on  the
prompting of the prosecutrix, the Appellant had consulted an Imam, who  both
the parties were aware, had not recommended the  Appellant’s  conversion  to
Islam, obviously because of his marital status and  the  law  enunciated  by
this Court in this context.   Palpably, had  he  been  a  bachelor  at  that
time, there would have been no  plausible reason for the  Imam’s  reluctance
to carry out his conversion.  Nay, in the ordinary  course,  he  would  have
been welcomed to that faith, as well as by his  prospective  wife’s  family,
making any opposition even by the latter totally improbable.    For  reasons
recondite,  the  Imam  has  also  not  been  examined  by  the  prosecution.
Fourthly, if  he  was  a  bachelor  there  would  have  been  no  impediment
whastsoever for them to marry under the Special Marriage Act.   Fifthly,  we
cannot discount the statement attributed  to the prosecutrix that her  faith
permitted polygamy; on extrapolation it would indicate that  she  was  aware
that the Appellant was already married and nevertheless she was willing   to
enter into a relationship akin to marriage with the  Appellant,  albeit,  in
the expectation that he may divorce his  wife.    Sixthly,  the  prosecution
should have investigated the manner in which the  prosecutrix’s  uncle  came
into possession of the Appellant’s marriage photograph, specially  since  it
is his defence that he had given the photograph to the prosecutrix when  she
had insisted, on the threat of suicide, that they should marry  each  other.
 The Appellant has also stated that this photograph had  been  entrusted  to
Fathima, on the prosecutrix’s own showing, was her confidant.    Again,  for
reasons that are  unfathomable,  the  prosecution  has  not  produced  these
witnesses, leading to the only inference that had they  been  produced,  the
duplicity in professing ignorance of the Appellant’s  marital  status  would
have been exposed.   The role of the prosecution is to  unravel  the  truth,
and to bring to book the guilty, and not to sentence  the  innocent.     But
we are distressed that this important responsibility has been  cast  to  the
winds.  In fact, learned counsel for the State has  contended  that  Fathima
could have been produced by the Appellant, which argument  has  only  to  be
stated for it to be stoutly rejected.    The Court can fairly  deduce   from
such an argument  that had Fathima been examined she would  have  spoken  in
favour of the Appellant.   Seventhly, it has not been  controverted  by  the
prosecutrix that the Appellant  had  made  all  arrangements  requisite  and
necessary for setting up a home with the prosecutrix.  The present  case  is
not one where the Appellant has prevailed on the prosecutrix to have  sexual
intercourse with him on the assurance that they  were  legally  wedded;  the
prosecutrix was discerning and intelligent enough to know  otherwise.    The
facts as have emerged are that the couple were infatuated  with  each  other
and wanted to live together in a relationship as close to  matrimony as  the
circumstances would permit.   Eightly, as already stated, Sasi  should  have
been examined by the prosecution as she was a  material  witness  and  would
have testified as to the state of mind of the prosecutrix.     Finally,  the
law has been succinctly clarified in Kaini Rajan.   The Court is duty  bound
when assessing the presence or absence of consent, to  satisfy  itself  that
both parties are ad idem on essential features; in the  case  in  hand  that
the prosecutrix was lead to believe that her marriage to the  Appellant  had
been duly and legally performed.   It is not sufficient that  she  convinced
herself of the existence of  this  factual  matrix,  without  the  Appellant
inducing or persuading her  to  arrive  at  that  conclusion.    It  is  not
possible to convict a person who did not hold out any promise  or  make  any
misstatement of facts or law or who presented a  false  scenario  which  had
the consequence of  inducing the other party into the commission of an  act.
   There may be cases  where  one  party  may,  owing  to  his  or  her  own
hallucinations, believe in the existence of  a scenario which  is  a  mirage
and in the creation of which the  other  party  has  made  no  contribution.
If the other party is forthright or honest in endeavouring  to  present  the
correct picture, such  party  cannot  obviously  be  found  culpable.    The
following paragraph from Deelip Singh vs State of Bihar 2005 (1) SCC 88,  is
extracted:
      “ 19. The factors set out in the first part of Section 90 are from the
      point of view of the victim. The second part of Section 90 enacts  the
      corresponding provision from the point of  view  of  the  accused.  It
      envisages that the accused too has knowledge or has reason to  believe
      that the consent was given by the victim in  consequence  of  fear  of
      injury or misconception of fact. Thus, the second part  lays  emphasis
      on the knowledge or reasonable belief of the person  who  obtains  the
      tainted  consent.  The  requirements  of  both  the  parts  should  be
      cumulatively satisfied. In other words, the court has to  see  whether
      the person giving the consent had given it under  fear  of  injury  or
      misconception of fact and the court should also be satisfied that  the
      person doing the act i.e. the alleged offender, is  conscious  of  the
      fact or should  have  reason  to  think  that  but  for  the  fear  or
      misconception, the consent would not have  been  given.  This  is  the
      scheme of Section 90 which is couched in negative terminology”.


10    We are in no manner of doubt  that  in  the  conspectus  that  unfolds
itself in the present case, the prosecutrix was  aware  that  the  Appellant
was already married but, possibly because a polygamous relationship was  not
anathema to her because of the faith which she adheres to,  the  prosecutrix
was willing to start a home with the  Appellant.    In  these  premises,  it
cannot be concluded beyond reasonable doubt that the Appellant  is  culpable
for the offence of rape; nay, reason relentlessly  points to the  commission
of  consensual sexual relationship, which was brought to an  abrupt  end  by
the appearance in the scene of the  uncle  of  the  prosecutrix.    Rape  is
indeed  a  reprehensible  act  and  every  perpetrator  should  be  punished
expeditiously, severally and strictly.    However,  this  is  only  possible
when guilt has been proved  beyond  reasonable  doubt.    In  our  deduction
there was no seduction; just  two  persons  fatally  in  love,  their  youth
blinding them to the futility of their relationship.
11    The Appellant is not an innocent man inasmuch as  he  had  willy-nilly
entered into a relationship with  the  prosecutrix,   in  violation  of  his
matrimonial vows and his paternal duties and responsibilities.   If  he  has
suffered incarceration for an offence for  which  he  is  not  culpable,  he
should realise that retribution in another form has duly visited him.     It
can only be hoped that  his  wife  Chitralekha  will  find  in  herself  the
fortitude to forgive so that their  family  may  be  united  again  and  may
rediscover happiness, as avowedly the prosecutrix has found.
12    It is in these premises that we  allow the Appeal.   We set aside  the
conviction of the Appellant  and  direct  that  he  be  released  forthwith.





      ............................................J.
                                                [K.S. RADHAKRISHNAN]









      ............................................J.
                                                [VIKRAMAJIT SEN]
New Delhi
April 04,  2014.
ITEM NO.1B               COURT NO.7             SECTION IIB
(for Jt.)

            S U P R E M E   C O U R T   O F   I N D I A
                         RECORD OF PROCEEDINGS


Crl.A.No............../2014
Petition(s) for Special Leave to Appeal (Crl) No(s).9014/2013

(From the judgement and order  dated 17/07/2013  in  CRLA  No.1481/2006,  of
The HIGH COURT OF KERALA AT ERNAKULAM)


VINOD KUMAR                                       Petitioner(s)

                 VERSUS

STATE OF KERALA                                   Respondent(s)

Date: 04/04/2014  This Petition was called on for pronouncement
                 of judgment today.


For Petitioner(s)        Mr. Raghenth Basant,Adv.
                     Mr. Senthil Jagadeesan,Adv.

For Respondent(s)
                     Ms. Bina Madhavan,Adv.


                Hon'ble Mr. Justice Vikramajit Sen pronounced the  judgment
           of the Bench comprising of Hon'ble Mr. Justice  K.S.Radhakrishnan
           and His Lordship.
                Leave granted.
                The appeal is allowed setting aside the conviction  of  the
           appellant and directing that he be released forthwith.


         (SUMAN WADHWA)               (RENUKA SADANA)
            AR-cum-PS                COURT MASTER

            Signed Reportable Judgment is placed on the file.

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