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.
-----------------------
17
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.
-----------------------
17
