Babu vs State Of Kerala Represented By The on 1 April, 2011

[Cites 31, Cited by 0]

Kerala High Court

Babu vs State Of Kerala Represented By The on 1 April, 2011

The accused in S.C. No.195/2008 on the file of the Special Court for trial of cases under Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act (for short SC/ST (PA) Act'), is the appellant herein. The offences alleged are under Sections 376 and 417 I.P.C. and Sections 3(1)(xi) and (xii) and 3(2) of the SC/ST (PA) Act.

2. The Court below found the accused guilty under Sections 376 and 417 I.P.C. and Section 3(2)(v) of SC/ST (PA) Act and it was found that he is not guilty under Sections 3(1)(xi) and (xii) of the same Act. The sentences awarded are the following: To undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of three months for the offence punishable under Section 417 I.P.C., rigorous imprisonment for a period of ten years and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for a further CRA No.609/2011 -2- period of two years for the offence under Section 376 I.P.C., and to undergo rigorous imprisonment for life and to pay a fine of Rs.25,000/- and in default of payment of fine, to undergo simple imprisonment for a further period of two years for the offence punishable under Section 3(2)(v) of the SC/ST (PA) Act.

3. The appellant belongs to Hindu Thiyya community and the prosecutrix is a Scheduled Caste who belongs to Hindu Pulaya community.

4. The case arose out of a private complaint filed by the prosecutrix who has been examined as P.W.6, as C.M.P.No.688/2007 before the Judicial First Class Magistrate's Court, Perambra. Therein, the offence alleged is under Sections 376 and 417 I.P.C. The said Court, by invoking Section 156(3) of the Cr.P.C. forwarded the complaint to the Perambra Police Station and accordingly a crime was registered and investigated upon. The case was charge sheeted by P.W.21, Deputy Superintendent of Police, Badagara. P.W.19 investigated the case initially.

5. We heard learned counsel for the appellant Shri P.V. Kunhikrishnan and Smt. Praicy Joseph, learned Public Prosecutor for the State.

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6. At the outset, learned counsel for the appellant submitted that the conviction for offence under Section 3(2)(v) of SC/ST (PA) Act cannot be sustained. There is no allegation that any offence has been committed by the accused because of racial prejudice. Merely because P.W.6 belongs to a Scheduled Caste community, learned counsel submitted that the offence cannot be said to have been committed and he relied upon various decisions of this Court and the Apex Court in that context.

7. We will first narrate the prosecution case and then will come to the arguments of the learned counsel for the appellant and the prosecution. P.W.6 is the daughter of P.W.17, Smt. Kalyani. They have been residing along with other family members. While so, their properties were conveyed to the accused by way of an exchange deed by the middle of October, 2006. P.W.6 was married to one Ravi previously and had severed her relationship with him after it was revealed that he was already married and had a child. At that time there were negotiations between the parities for the purchase of the property by the accused. It is alleged that the accused pretended to love P.W.6 and the said intimacy developed and that he had promised that he will marry the prosecutrix alone. She had gone along with the CRA No.609/2011 -4- accused in his car on several occasions to places like Wayanad, Kayanna and Balussery and had indulged in sexual intercourses. According to her, only because of the promise given to her to marry her, she had given consent for the same. He has been coming to her house on several occasions. When she became pregnant, the accused wanted her to abort the pregnancy after consulting a doctor. She refused to do so and it is at that stage the accused informed her that he is already married and is having children. It is stated that as she felt cheated, she lodged a complaint to the Vanitha Cell attached to the Vadakara Police Station, who summoned both parties and then the accused came with a lady and it was realised by her that the said lady is his wife. Later, a child was born to her.

8. The prosecution examined P.Ws.1 to 22, marked Exts.P1 to P22 and produced MO.1. Dws.1 to 3 have been examined by the accused and D.W.1 is his wife. Exts.D1 to D5 have also been marked. D.W.3 is the accused himself.

9. Learned counsel for the appellant submitted the following arguments:- The appellant denied the charges totally. It is pointed out that even otherwise the conviction cannot be sustained. It is submitted that no CRA No.609/2011 -5- offence of cheating has been made out as none of the ingredients of Section 415 of the I.P.C. are satisfied herein. There is no allegation that at the time of giving promise any fraudulent intention was there. It is also argued that there is no evidence of any dishonest intention. It is submitted that P.W.6 has no consistent case. The complaint itself was filed through a lawyer before the Judicial First Class Magistrate's Court, Perambra wherein it is alleged that she had travelled in the appellant's car to places like Wayanad, Kayanna and Balussery, stayed together in rooms and had sexual intercourses. While giving evidence as P.W.6, she has developed a different story. According to her, even after the exchange deed was executed, they were permitted to reside in the same house by the accused, for another two months. They had sexual intercourse for the first time in the said house. The second one was in a shop called "Munna Opticals" at Balussery and the third in a house at Kayanna,behind the Punjab National Bank. It is submitted that a different story itself cuts at the root of the prosecution case.

10. Learned counsel for the appellant further submitted that that the exchange deed was executed by the mother of P.W.6, viz. P.W.17 as well as CRA No.609/2011 -6- the wife of the accused. The accused had not obtained the property as alleged. It is submitted that the entire prosecution story is developed on the premise that the accused had purchased the house and property of P.W.17. They cannot be heard to say like that, as the signatories to the exchange deed were present in the Office of the Sub Registrar and had signed the document. Therefore such an oral evidence will be hit by Section 91 of the Evidence Act. It is therefore submitted that P.Ws.6 and 17 really knew that the accused was married, and therefore the case that he had promised to marry P.W.6 and had developed a love affair, cannot at all be sustained. The defence evidence has been heavily relied upon in this context. It is submitted that the building wherein 'Munna Opticals' is situated, going by the mahazar, is fully covered by glass and providing visibility to the inside room, and that also is in a crowded bus stand premises. The same could be seen from the scene mahazar, and from the evidence of P.W.12, the owner of the Opticals. Therefore, there is total improbability for the happening of the incident therein. It is also submitted that the plea that the third incident occurred in a house near Kayanna cannot also be believed as the same is a rented house taken by the Secretary of a Panchayat. CRA No.609/2011 -7-

11. It is submitted that the prosecutrix was married and is a divorcee. She cannot therefore plead ignorance about the fact that by indulging in intercourse, she may became pregnant. It is therefore submitted that the consent which allegedly has been extended by her on a promise to marry also falls to the ground and our attention was invited to several decisions of the Apex Court in this context. It is therefore submitted that the offence alleged, of rape cannot at all be sustained, as even if the prosecution case is accepted fully, she has to be treated as a consenting party to the sexual intercourse with free will. There is no "misconception of fact" here so as to attract Section 90 I.P.C. It is therefore submitted that the entire prosecution case cannot be accepted and the appellant is entitled for acquittal.

12. We will now come to the evidence adduced by the prosecution. The copy of the complaint filed before the Judicial First Class Magistrate's Court has been produced as Ext.P6, the contents of which we have already adverted to. The places where they had gone and have indulged in sexual intercourse are mentioned as Wayanad, Kayanna and Balussery. That also after taking rooms in such places. The victim has been examined as P.W.6. CRA No.609/2011 -8- In chief examination she has stated that the building and their residential premises were sold to the accused in October, 2006 and thereafter she became acquainted with the accused. Her family continued to reside there for another two months and shifted their residence only thereafter. The accused was showing intimacy and love and promised to marry her, on his visits there. The first time they had indulged in sexual intercourse is in the said residential house itself. The second time it happened is in December 2006 in Munna Opticals at Balussery, in a room which is part of the same shop, at about 12 noon. The third incident is in a house at Kayanna, on the rear side of Punjab National Bank. Thereafter she became pregnant and he advised her to abort the same which she did not agree. She then pressed him to conduct the marriage but he did not agree. This led to the filing of the complaint in the Vanitha Cell where both of them were summoned by the Police. He came there accompanied by a lady and then she realised that he was already married. She filed the complaint, Ext.P6 thereafter and at the time of giving statement to the Police, she was pregnant by three months and later she delivered a child named as Vishnu.

13. In the cross examination she stated inter alia that at the time of CRA No.609/2011 -9- marriage with one Ravi, she was aged 20 years and had started residing in his house. She was not aware about his previous marriage. She had no knowledge about the occupation of the accused when they became acquainted and after she became pregnant it was known that he is conducting a jewellery shop in Perambra town. The pregnancy itself was confirmed in December 2006 in a lab at Balussery. Thereafter also, there was physical contact with the accused once. It is also divulged by her that on two occasions they had intercourse more than once, on the same day viz. at the house at Balussery and in Munna Opticals. According to her, they reached the Optical shop at 12 noon and went back after spending two hours there. To a specific question, she answered that she does not know that the mother registered the document concerning her property on 10.10.2006. She was asked whether the name of the wife of the accused is K.T.K. Smija, to which also she answered as being unaware of it. According to her, the accused had come to her house 1 = months prior to the registration of the document and she developed a liking to him and thought of marrying him. Along with him, brokers also were there to fix the deal. She admitted in cross examination that while being examined in the Family Court, she had CRA No.609/2011 -10- deposed that they had physical contact in a car when they went to Wayanad. The accused looked like a person around 40 years of age and she did not enquire about him previous to the physical contacts. In the complaint before the Vanitha Cell the plea was for conducting the marriage. After she came to know that the accused is already married and is having children, the relationship was severed. She confided that she did not object or resist sexual intercourses. The accused did not compel her to have sexual intercourse and did not threaten her also.

14. In the cross examination she also deposed that before she became pregnant, the fact that they are in love and that the accused had offered to marry her, has not been disclosed to her mother.

15. What we find from the evidence of P.W.6 is that the plea of the learned counsel for the appellant that she had different versions in the court while being examined, is correct.

16. The mother of P.W.6 has been examined as P.W.17. According to her, she was residing along with her husband, the daughter, P.W.6 and another son Babu. In connection with the marriage of the second daughter there were some liabilities and to redeem the same, the building and the CRA No.609/2011 -11- land was sold to the accused. After the sale also, they had resided in the building for two months. She had seen the accused taking P.W.6 once along with him for the purpose of showing the property. She came to know that the daughter is pregnant.

17. In her cross examination, to a specific question it is stated that she does not know in whose name the document has been registered and she had given the land to the accused and has not seen his wife and that she does not know about her. She was not aware that the accused is married. After P.W.6 became pregnant, she told her that both of them are in love and the accused has promised to marry her. The daughter had passed SSLC and was having employment in a shrimp unit for one year. While remaining without job, she was seen going outside 3-4 times for seeing the accused. The first marriage with one Ravi had to be severed as she came to know about his previous marriage. They had resided together for two weeks in his house, and then she returned. We find that her evidence is only that she came to know about the pregnancy only later.

18. Another witness examined by the prosecution is P.W.15 who had been conducting Munna Opticals at Balussery. In the chief examination CRA No.609/2011 -12- he stated that he was doing partnership business with another person, viz. Abdul Rahiman. The accused was known to him. The accused had been to the shop once in 2006 along with a lady by noon time. When they arrived in the shop, he went out for taking food. He identified P.W.6 as the lady who was with the accused and according to him, after he came back they returned. In the cross examination he deposed that glass shutters placed on two sides of the shop, provide complete visibility from both sides, viz. inside and outside of the room.

19. The remaining witnesses are, Mahazar witnesses, witnesses to prove community certificates, Doctors and Police personnel.

20. Arguments were raised by the learned counsel on both sides with respect to the question whether she has given free and voluntary consent. We will come to the bare principles concerning Sections 90 and 375 I.P.C. as declared by the Apex Court in the two decisions relied upon by the learned counsel for the appellant, viz. Uday v. State of Karnataka {(2003) 4 SCC 46} and Deelip Singh alias Dilip Kumar v. State of Bihar {(2005) 1 SCC 88}. Of course, for attracting Section 375 I.P.C., viz. the offence of rape, the six clauses therein enumerate different circumstances. In a matter CRA No.609/2011 -13- where the victim has given consent, clauses thirdly, fourthly and sixthly define certain circumstances which obviously cannot apply here. Therefore, we will have to find out whether the first and second clauses will come to play. This is so in the light of the prosecution case that there was a promise to marry which will attract the provisions of Section 375.

21. The Apex Court in Uday's case {(2003) 4 SCC 46} has examined the requirements under Section 90 I.P.C. to find out whether consent is voluntary or under a misconception of fact and whether a failure to keep the promise on a future uncertain date will amount to misconception of facts. The following are some of the decisions discussed in detail:- Rao Harnarain Singh Sheoji Singh v. State (AIR 1958 Punj.

123), Vijayan Pillai v. State of Kerala (1989 (2) KLJ 234), Anthony, In re (AIR 1960 Madras 308), Arjan Ram Naurata Ram v. State (AIR 1960 Punj. 303), Gopi Shanker v. State of Rajasthan (AIR 1967 Raj. 159), Bhimrao Hamooji Wanjari v. State of Maharashtra (1975 Mah. L.J.

660) and Jayanti Rani Panda v. State of W.B. (1984 Crl.L.J. 1535).

22. We think it will be of advantage to refer to a few of them here. In Rao Harnarain Singh Sheoji Singh's case (AIR 1958 Punj. 123) it was CRA No.609/2011 -14- held by Punjab High Court that "consent, on the part of a woman as a defence to an allegation of rape, 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 freely exercised a choice between resistance and assent."

23. This Court in Vijayan Pillai's case (1989 (2) KLJ 234) has held as follows:

"Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be 'consent'. Consent means active will in the mind of a person to permit the doing of the act of and knowledge of what is to be done, or of the nature of the act that is being done is essential to a consent to an act. Consent supposes a physical power to act, a moral power of acting and a serious and determined and free use of these powers."

24. In Anthony, In re's case (AIR 1960 Mad. 308) the Madras High Court agreed with the principles stated in Rao Harnarain Singh Sheoji Singh's case (AIR 1958 Punj. 123). The same is the view taken by the other High Courts in the decisions noted above.

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25. One of the important cases considered by the Apex Court is that of the Calcutta High Court in Jayanti Rani Panda's case (1984 Crl.L.J. 1535). It was laid down by the Calcutta High Court in para 7 of the judgment held that failure to keep the promise on a future uncertain date does not always amount to misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The said paragraph has been extracted by the Apex Court in para 16. The view of the High Court in that regard is evident from the following words also:

"If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her."

Finally, in para 21, the Apex Court held as follows:

"It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love CRA No.609/2011 -16- on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."

Therefore, the principle emerging from the said paragraph is that consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. It was held that the CRA No.609/2011 -17- surrounding circumstances will have to be examined in each case.

26. In a later case, viz. Deelip Singh's case {(2005) 1 SCC 88} again the matter was considered elaborately in the light of the principles stated by the various High Courts and has affirmed the decision in Rao Harnarain Singh's case (AIR 1958 Punj. 123). We will refer to the points decided in the said case also which have been relied upon by the learned counsel for the appellant. In para 14 of the judgment the Apex Court examined the clause 'secondly' (without consent) under Section 375 and the definition of 'consent' under Section 90 was thereafter explained. Significantly, the Apex Court held that the requirement of both part of Section 90 should be cumulatively satisfied. We extract paragraph 19 hereinbelow:

"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 CRA No.609/2011 -18- 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."

It was held that the first part is from the point of view of the victim and the second part is from the point of view of the accused. The second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. After examining various decisions of the High Courts which have been gone into by the Apex Court in Uday's case (supra), their Lordships in para 26 referred to a much earlier judgment of the Madras High Court in N. Jaladu, Re (ILR (1913) 36 Madras 453) and stated that the same is an illuminating decision with regard to the scope and amplitude of the expression "misconception of fact" in Section 90 I.P.C. It was held that the said decision is an authority for the proposition that a misrepresentation as regards the intention of the person seeking consent, i.e. the accused could give rise to the misconception of fact and that the said CRA No.609/2011 -19- principle can be applied to Section 375 also. Finally, it was held thus:

"Applying that principle to a case arising under Section 375 consent given pursuant to a false representation that the accused intends to marry could be regarded as consent given under misconception of fact."

Their Lordships examined the principles stated by a Division Bench of the Calcutta High Court in Jayanti Rani Panda's case (1984 Crl.L.J. 1535) and that of Uday's case {(2003) 4 SCC 46) in para 27 of the judgment and added one more test to that of Uday's case (supra) in para 28. It was held that "while we reiterate that a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the 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 Section 375 clause secondly."

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27. The principles deducible from the above, are summarised below:

a) Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation;

b) The same, not only be after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent;

c) Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be 'consent';

(d) Consent means active will in the mind of a person to permit the doing of the act of and knowledge of what is to be done, or of the nature of the act that is being done is essential to a consent to an act;

e) Consent supposes a physical power to act, a moral power of acting and a serious and determined and free use of these powers;

f) Failure to keep the promise on a future uncertain date does not always amount to 'misconception of fact' at the inception of the act itself;

g) In order to come within the meaning of 'misconception of fact' the fact must have an immediate relevance;

h) Consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he CRA No.609/2011 -21- would marry her on a later date, cannot be said to be given under a 'misconception of fact';

i) Consent given pursuant to a false representation that the accused intends to marry could be regarded as consent given under 'misconception of fact'. A false promise is not a fact within the meaning of the Code;

j) A misrepresentation as regards the intention of the person seeking consent, i.e. the accused could give rise to the 'misconception of fact';

k) A promise to marry without anything more will not give rise to 'misconception of fact' within the meaning of Section 90 I.P.C.;

l) The factors set out in the first part of Section 90 are from the point of view of the victim;


              m)    The second part of Section 90 enacts the corresponding

        provision from the point of view of the accused; and

               n)     The requirements of both the parts           should be

         cumulatively satisfied.

28. We will have to examine the facts of this case in the background of the above principles. The first question is whether the case that there was a promise to marry her, is probable. In this context, learned counsel for the appellant Shri P.V. Kunhikrishnan submitted that the accused was already married and was having three children. He was, even according to the CRA No.609/2011 -22- prosecutrix, aged about 40 and she was aged 24. The veracity of such a promise, learned counsel submits, will have to be verified by referring to certain admitted circumstances of this case, the important one being the execution of the exchange deed. The learned Public Prosecutor, Smt. Praisy Joseph argued that P.W.6 can be believed in toto, being the victim.

29. In fact, the deposition of P.W.17, the mother of P.W.6 is that they had executed the exchange deed with the accused. This aspect is a crucial thing to be verified. The document itself is proved in evidence through D.W.1, the wife of the accused. Ext.D4 is the photo copy and Ext.D6 is the certified copy of the same. An examination of the document will show that the same is executed on 10.10.2006 between the wife of the accused Smt.K.T.K. Smija and P.W.17 as an exchange deed. Both of them have signed in each pages and P.W.17 has put her signature below the signature of D.W.1, the wife of the accused. The schedule gives the items of properties exchanged between the parties. P.W.17, the mother in cross examination deposed that she does not know the wife of the accused and has not seen her. Evidently, as rightly pointed out by the learned counsel for the appellant, the same is belied by the document itself. Such a denial CRA No.609/2011 -23- cannot be believed at all, according to us. Therefore, the principles under Section 91 of the Evidence Act will be relevant in this context. The plea raised by P.W.6 and the mother that the property was purchased by the accused himself, is disproved by the document, Ext.D6 itself. It is also clear from the evidence of P.W.17 that the accused and his family are having other items of properties very near to the property exchanged by the exchange deed and the husband of P.W.17 had been there earlier to pluck coconuts. It is in evidence that his normal occupation is as a coconut climber. Therefore, it can be safely presumed that the circumstances of the accused were within the knowledge of P.W.17 and P.W.6 beforehand and they were not total strangers. Coupled with the fact is the document itself executed by P.W.17 in favour of the wife of the accused. Therefore, we cannot accept the case of the prosecution that the property was sold to the accused. Definitely therefore, it can be concluded that the fact that he is a married man, was within their knowledge beforehand. The alleged promise to marry said to have been extended by the accused, is really improbable in view of the attendant circumstances.

30. Apart from this, certain details from the deposition of P.W.6 are CRA No.609/2011 -24- also relevant in this context. It is her case in the chief examination that her acquaintance with the accused started after the transaction of the property was over in October 2006. The accused used to come to the house thereafter. According to her, her family continued to reside in the same building for another two months before shifting their residence. Her evidence in chief examination as well as in the cross examination will show that even though she was residing along with her father, mother and brother, she has not disclosed to anybody about the alleged promise extended by the accused to marry her. In fact, she was married to one Ravi at the age of 20 and had obtained a divorce later. Therefore, evidently she cannot be termed as a person who is not aware or conversant with the institution of marriage, the family relationship and the like aspects. According to her, only after the pregnancy was confirmed, she told her mother about her relationship with him and about the promise to marry.

31. The evidence of P.W.17 is also to that effect. In cross examination, she stated that P.W.6 told her that she is in love with the accused and that he had promised to marry her, after she became pregnant.

The question is whether the said part of the evidence could be believed and CRA No.609/2011 -25- accepted straightaway. In fact, as rightly pointed out by the learned counsel for the appellant, in the light of the execution of the exchange deed on 10.10.2006 between the wife of the accused and the mother, coupled with the fact that he was aged 40, even going by P.W.6, her story of promise to marry falls to the ground. The evidence of P.Ws.6 and 17 on this aspect is highly improbable, according to us.

32. It will be a normal thing for the parties when they are entering into transactions like the one herein, to be acquainted with the background and other circumstances of each other. This aspect is also important, as P.W.6's deposition is that only after the exchange deed was executed, the acquaintance started and developed subsequently as a love affair. Therefore, it will not be safe to accept the case of P.Ws.6 and 17 that there was promise to marry by the accused.

33. It is also of importance to notice that the non disclosure of the alleged promise to the mother cannot also be believed. P.W.6 is a divorcee who was married four years prior to the alleged incident. Going by the evidence of P.W.17, she had passed SSLC and was employed in a shrimp unit for a period of one year. Therefore, she had sufficient exposure and CRA No.609/2011 -26- was capable of understanding worldly affairs including the marital relationship and the like. The alleged reason for divorce, according to P.W.6, is that the former husband Ravi was already married. Therefore, on a subsequent occasion when she is approached by somebody, it cannot be believed that she will not make due enquiries before making a nod to his overtures. The same also therefore goes against the prosecution story.

34. Learned Public Prosecutor, Smt. Praisy Joseph submitted that the parties belonged to a Scheduled Caste community and therefore there is no improbability. But we cannot ignore the background and other relevant evidence already discussed.

35. According to P.W.6, she did not enquire about the job of the accused beforehand. It is her story that she knew that the accused is in the jewellery business only after she became pregnant and not beforehand. The same is also improbable according to us, in the light of the factual background leading to the execution of the exchange deed. Therefore, the same also goes adverse to the prosecution story.

36. Keeping in view this aspect, we will have to apply the principles stated by the Apex Court in Uday's case {(2003) 4 SCC 46}. Evidently, a CRA No.609/2011 -27- promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90. It follows therefore that there is no acceptable evidence herein that a representation was deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her. The two limbs of Section 90 will have to be cumulatively satisfied. There is no evidence worth to show that the accused was also conscious of the fact that but for the misconception consent would not have been given. Thus, going by the test laid down by the above two judgments of the Apex Court in Uday's case (supra) and Deelip Singh's case (supra), we are of the view that the ingredients of Sections 90 and 375 are not satisfied.

37. The next legal point argued by the learned counsel for the appellant is by relying upon the decisions of the Apex Court in Jibrial Diwan v. State of Maharashtra {(1997) 6 SCC 499} and V.P. Shrivastava v. Indian Explosives Limited and others {(2010) 10 SCC 361} in a context of the offence alleged under Sections 415 and 417 I.,P.C. In Jibrial Diwan's case {(1997) 6 SCC 499}, the Apex Court acquitted the appellant who was found to have delivered forged letters. It was held that CRA No.609/2011 -28- he was not the forger of the document. We will come to the discussion on the required ingredients under Section 415, in V.P. Shrivastava's case {(2010) 10 SCC 361}. Therein, in paragraphs 22 and 25 the principles have been stated hereunder:

"22. It is plain from a bare reading of the section that to hold a person guilty of cheating, as defined in Section 415 IPC, it is necessary to show that at the time of making the promise he had fraudulent or dishonest intention to retain the property or to induce the person so deceived to do something which he would not otherwise do.

25. It is well settled that in order to constitute an offence of cheating, it must be shown that the accused had fraudulent or dishonest intention at the time of making the representation or promise and such a culpable intention right at the time of entering into an agreement cannot be presumed merely from his failure to keep the promise subsequently."

38. Therefore, to attract Section 415, necessarily it has to be shown at the time of making the promise that the accused had fraudulent or dishonest intention to induce the person so deceived to do something which he would not otherwise do. It was also held that in para 25 that a failure to keep the promise subsequently cannot lead to an inference that there was a CRA No.609/2011 -29- fraudulent or dishonest intention. These principles were relied on by the learned counsel for the appellant in the context of the submission that if at all there was a promise to marry, the failure to do so later cannot lead to the finding that there was dishonest intention to attract the offence under Section 415 I.P.C. leading to a conviction under Section 417 I.P.C. Herein, as we have already found that the story regarding promise to marry cannot survive, automatically the same will have impact on the offence alleged to have been committed under Section 415 also. Further, the prosecution had alleged the commission of offence under Section 415 in the light of the alleged promise to marry alone. We are of the view therefore that there is no evidence to show that the accused had entertained a dishonest intention by extending such a promise and to deceive the victim. He was already married having three children. Therefore, by no stretch of imagination the prosecution story in that regard can be accepted.

39. It was also argued by the learned counsel for the appellant that the entire prosecution case will have to fall to the ground, since the case of the prosecutrix before the Magistrate's Court in her complaint filed as C.M.P.No.688/2007 is totally different from the one in the Court. It is CRA No.609/2011 -30- argued that therein it was specifically alleged that she was taken to the car of the accused on several days to places like Wayanad, Kayanna and Balussery and they resided together in certain places after availing rooms and then had physical contact by way of sexual intercourse. But in the evidence there is a totally different story. We have already noted that the places mentioned are: (1) in the house; (2) in Munna Opticals; and (3) in a building behind Punjab National Bank at Kayanna. Learned counsel submitted that prior to the filing of the complaint she had approached the Vanitha Cell of the Police which fact is stated in the complaint itself. This is after the alleged refusal of the accused to entertain her request to marry her and after she came to know that he is already married. The copy of the said complaint has not been produced along with the complaint Ext.P6 or in evidence. The investigating officers have also not found out the same during investigation or produced it before the court. It is also pointed out that Ext.D1 is the copy of the complaint filed before the Family Court by her wherein the story is in tune with Ext.P6 that they had gone to Wayanad, Kayanna and Balussery and had physical contacts after availing rooms and residing together in such places. It is further submitted that CRA No.609/2011 -31- Ext.P6 is prepared by a lawyer and presented to the court. It is therefore pointed out that the marked different versions will cut at the root of the prosecution story.

40. We have already discussed the evidence of P.W.6, regarding the point of time when the acquaintance started, i.e. after the property transaction was gone through. According to her, after the complaint was filed before the Vanitha Cell,both parties were summoned and then only she knew that the accused was already married as he came along with his wife there. P.W.5 is the Doctor who had examined her physically. It is clear from the evidence of P.W.6 that she did not tell the Doctor that she had married earlier. This is confirmed by P.W.5 Doctor also in her evidence. Of course, the Doctor has not noted any injuries on her. It is also clear from the evidence of the Doctor that the victim has not stated any act of force, violence from the assailant or any resistance from her side. In the cross examination of P.W.6, she has clearly admitted that she is aware of the fact that there is a possibility of becoming pregnant if she indulges in sexual intercourse and that such a relationship before marriage is a taboo. According to her, the factum of pregnancy was confirmed in a test CRA No.609/2011 -32- conducted in December 2006 and even after knowing it, they had sexual intercourse in the residential house behind Punjab National Bank at Kayanna. In the cross examination she was asked whether it was true that before the Family Court she deposed that they had physical contacts only twice, viz. in the house at Kayanna and in Munna Opticals at Balussery, and she answered "Yes". According to her, in Munna Opticals as well as in the house at Kayanna, they had physical contacts more than once and they had spent nearly two hours on both occasions. According to her, they reached Munna Opticals they came at 12 noon and returned by 2'O clock and these details were furnished to the lawyer.

41. She came with a fresh revelation that they had physical contact when they went to Wayanad, in the car itself. This itself is a new story, not even spoken to in the chief examination. In the further cross examination on 26.5.2010 she deposed that she did not object or resist while indulging in sexual intercourse and the accused had not exerted force or threatened her. In fact, she had admitted that by the exchange of the property they had obtained property as well as some amount. This signifies the fact that she knew about the details of the transaction. The significant disclosure made CRA No.609/2011 -33- by her is that before she became pregnant she never told her mother about any promise to marry extended by the accused. She also stated in the cross examination that she had not shown to the Police the place where they had physical contacts in Wayanad in the car.

42. Learned counsel for the appellant submitted that the plea raised by P.Ws.6 and 17 that even after the exchange deed was executed, they continued to reside therein is not correct. In this context, the evidence of D.W.1, the wife of the accused and that of D.W.2 have been relied upon. D.W.2's evidence is to the effect that he had taken on rent the same building for some of his workers which is the version given by D.W.1 also. It is submitted that the story of the prosecution about the P.W.6 developing intimacy after the exchange deed was executed, cannot therefore be accepted. In the light of the discussion already made, we need not go into such details as we have already found that the prosecution has failed to prove the allegation against the accused.

43. We notice that the evidence of P.W17, the mother in the cross examination is that she had seen the accused taking the daughter for the purpose of making enquiries regarding the properties for them, i.e. before CRA No.609/2011 -34- the execution of the document. Three or four times she had gone out stating that she wants to see Babu (accused) at the time P.W.6 was remaining without any job.

44. With regard to the incident alleged to have happened in Munna Opticals, learned counsel for the appellant submitted that the evidence of P.W.15, a partner of the shop, relied on by the prosecution will not help them. Glass shutters have been provided in the shop, making it visible for everybody, to have glimpse of the shop from outside. It is therefore stated that the entire story concerning the incident in the shop is improbable. Learned counsel submitted that even as per his evidence, he had gone outside for taking lunch and returned thereafter, thus making the story impossible. It is also the plea of the learned counsel for the appellant that there is clear contradiction in his evidence which has been brought out. Actually, the person available in the shop on that day was one Abdul Rahiman, the partner of P.W.15 and P.W.15 had stated to P.W.19, the investigating officer that Abdul Rahiman was present in the shop when the accused came along with a lady to the shop. To a specific question by the defence counsel about the said previous statement, the answer was one of CRA No.609/2011 -35- denial. But when P.W.19, the Circle Inspector of Police was asked about this matter, he clearly deposed that P.W.15 had given the statement that Shri Abdul Rahiman was in the shop and actually P.W.15 had gone to the mosque and when he came back he saw the accused along with the prosecutrix. It is therefore submitted that there is a clear contradiction on this aspect.

45. The mahazar of the shop is Ext.P1. It will also show that there are glass shutters on the eastern and northern sides of the shop so as to have clear glimpse from the inside as well as from the outside. The place where it is alleged that the accused had sexual intercourse, is stated to be the rear side of the shop.

46. We are of the view that it will be totally unsafe to accept the plea of P.W.6 in the light of the inherent improbability in such a matter, in a building which is situated in a complex near a bus stand. In Ext.P6 she has no such case. In Ext.D1 complaint before the Family Court also there was no such case also. It is not clear why such an improvement was made at the evidence stage. There are no other witnesses who have seen them coming to the shop except P.W.15. Shri Abdul Rahiman, his partner has not been CRA No.609/2011 -36- examined. Thus, when she has a totally different case than that is pleaded in Ext.P6 which was also prepared through a counsel, in a matter like this, we should be more circumspect in accepting the case of the prosecution. The fact that she has not disclosed about these three instances in the complaint itself will go against the case of the prosecution. Thus, as rightly argued by the learned counsel for the appellant, the victim has no consistency with regard to the alleged places where she had sexual intercourse with the accused. We notice that the complaint itself is filed in March 2007, viz. on 28.3.2007 whereas the alleged incidents have occurred in October, 2006, December 2006 as well as the first week of January 2007. Coupled with the fact is the non production of the alleged complaint filed before the Vanitha Cell, which according to the learned counsel, is clearly suppressed by the prosecution as the story therein would have been totally different.

47. Therefore, the net result of the above discussion is that the three instances mentioned in the court differs from that in Ext.P6 complaint. The fourth one disclosed during the cross examination, that in a car at Wayanad, is not at all spoken to the Police also which is admitted by her. CRA No.609/2011 -37- Therefore, it will not be safe to accept the case of P.W.6 about the alleged love affair, the promise to marry and the places where the alleged sexual contacts have been made.

48. As we have already seen, she was married once at the age of 20. It cannot be said that she could have been easily deceived by a person of the age of 40 with a promise to marry, especially since the alleged reason for divorcing the earlier marriage was that her husband Ravi was already married. She had passed SSLC and had been working in a shrimp unit which show that she had sufficient exposure to the outside world. It can therefore be seen that she had sufficient intelligence to understand the consequences of the acts to which she had consented. She plainly admitted that the accused has not forced her or threatened her and she had not resisted or obstructed the sexual contacts. The evidence of the Doctor is also that there was no marks of violence to her body and she had not spoken about any violent acts also with regard to the alleged rape. As we have already found that the story regarding promise to marry cannot be accepted in the light of the fact that she did not refuse or obstruct at the time of sexual intercourse. It can only be a case where free consent was given by CRA No.609/2011 -38- her fully knowing about the consequences also. In such cases it cannot be said that it was due to a misconception of fact or any misrepresentation. If her case is believed, then she has travelled around along with the accused in car on different occasions which means that they have often met. Therefore, it can only be a case where the indulgence in sexual acts was only because P.W.6 was overtaken by emotions and not because of any alleged promise to marry. We can therefore only conclude that even if the prosecution story of sexual intercourse is accepted, she had willingly consented to the same. Even going by her evidence, after she became pregnant, sexual intercourse was there. Such being the case, it can only be said that she also had desired it and the blame cannot be attributed to the accused that the prosecutrix consented it because of the misconception of fact or due to the alleged promise or of any misrepresentation. She was aware of the consequences of the act, and had kept it as a secret also for long. Clearly it proves free will and that the consent was voluntary. The test laid down in Rao Harnarain Singh'case (AIR 1958 Punj. 123) squarely will apply here. Voluntary participation is evident. Sufficient exercise of intelligence based on the knowledge of the moral quality of the act she was consenting to, is evident, CRA No.609/2011 -39- as the mater was kept secret for long. She did not resist the overtures of the appellant which is her own evidence. She thus freely exercised a choice between resistance and assent. Consent was not out of a misconception of fact or misrepresentation. Therefore, even if the entire prosecution story is accepted, it cannot be a case where Section 375 is attracted. Thus, we find no reason to accept the case of the prosecution that the appellant committed rape on the accused.

49. One of the pieces of evidence adduced by the prosecution is by examining P.W.4 who has proved Ext.P4 certificate after conducting DNA test. It is in his evidence that a request for DNA test was received from the Family Court, Kozhikode on 16.11.2009. The result shows that the accused is the biological father of the child 'Vishnu' and the victim is the biological mother of the said child. Learned counsel for the appellant submitted that there is nothing to show that a sample was collected properly as it is clear from the evidence of P.W.4 that he had not mentioned the sample collection process in Ext.P4. By relying upon the decision of the Apex Court in State of Rajasthan v. Daulat Ram {(1980) 3 SCC 303}, it is stated that the onus is on the prosecution to prove various steps taken at CRA No.609/2011 -40- the time of taking samples upto the analysis as possibility of samples being changed or tampered, is there. Learned counsel also relied upon the decision of a learned Single Judge of this Court in Sisu Bhavan v. Joy Yohannan (2008 (4) KLT 550) holding the view that in a case of alleged offence of commission of rape, the question of paternity has no nexus.

50. Learned Public Prosecutor submitted that Ext.P4 is a clinching evidence and therefore the same will support the prosecution case. It is also submitted by the learned Public Prosecutor that the Apex Court in Chittar Lal v. State of Rajasthan (AIR 2003 SC 3590) was of the view that it is the quality and not quantity of evidence that is relevant for proving a fact and therefore the evidence of P.W.6 along with other evidence will support the prosecution story. According to the learned Public Prosecutor, this is a clear case where the consent was obtained by exerting deception, viz. a promise to marry and regarding the promise to marry, the evidence of P.W.6 itself can be accepted. It is therefore submitted that the evidence of P.W.4 coupled with Ext.P4 will clinch the issue against the accused.

51. Learned counsel for the appellant also submitted that Ext.P4 will not come within the purview of Section 293 Cr.P.C. It is stated that the test CRA No.609/2011 -41- was conducted in Rajiv Gandhi Centre for Biotechnology and P.W.4 is an Examiner therein. Sub-section (4) of Section 293 specifies that the section will apply to Government Scientific Experts mentioned in limps (a) to (g) therein. Rajiv Gandhi Centre for Biotechnology is not specified therein and therefore it is submitted that the said report could not have been accepted. It is evident that the Institute herein will not come within the named institutions in sub-section (4) of Section 293.

52. In Sisu Bhavan's case (2008 (4) KLT 550) this Court held that the fact in issue in a trial alleging offence of rape, is as to whether there was sexual intercourse as against the will and without the consent of the victim and the consent if any was obtained under the circumstances falling under clauses thirdly, fourthly and fifthly of Section 375 I.P.C. , the question of paternity cannot arise. It was held as hereunder:

"Merely because there was an allegation by the prosecution that pursuant to the sexual intercourse which the accused had with the victim a child was born, a question of paternity of the child which has absolutely no nexus with the alleged offence of rape, cannot arise. Whether the accused is proved to be the biological father or not was wholly irrelevant with regard to the fact in issue in the trial before the Court of Addl. Sessions Judge." CRA No.609/2011 -42-

We are also of the view that what is relevant in considering whether the offence under Section 375 I.P.C. is attracted, is to find out whether there was sexual intercourse as against the will and without the consent and therefore Ext.P4 will not clinch the issue as against the accused in the absence of other evidence, as we have already discussed. Therefore, we cannot accept the case of the prosecution that Ext.P4 itself will prove the culpability of the accused.

53. There is conviction for an offence under Section 3(2)(v) of SC/ST (PA) Act on the ground that the prosecutrix is a member of Scheduled Caste and the accused belongs to Hindu Thiyya. Regarding the same, it is submitted by the learned counsel for the appellant that it is well settled by the decisions of this Court as well as that of the Apex Court, viz. Ramachandran v. State of Kerala (1996 (1) KLT 296), Dinesh alias Buddha v. State of Rajasthan {(2006) 3 SCC 771}and Ramdas and others v. State of Maharashtra {(2007 )2 SCC 170}, there should be an element of racial prejudice and the accused cannot be alleged to have committed the offence of rape merely because the victim is a member of a Scheduled Caste and there is no such ingredients proved here. The learned CRA No.609/2011 -43- Sessions Judge has convicted the accused under Section 3(2)(v) after exonerating him from the offence alleged under Sections 3(1)(xi) and 3(1)

(xii) of the SC/ST (PA) Act on the finding that the victim is a Scheduled Caste and the accused belongs to Hindu Thiyya. This aspect is considered in para 117 of the judgment. After referring to the difference in the communities to which the parties belong, in para 122 it was held that as the accused has committed the offence of rape punishable with imprisonment for 10 years or more against P.W.6 who belongs to Scheduled Caste, an offence under Section 3(2)(v) will lie against him. We find that in the light of the decisions of the Apex Court and this Court referred to above, such a conclusion is not possible. Merely because P.W.6 happens to be a Scheduled Caste, no offence under Section 3(2)(v) of the SC/ST (PA) Act is made out.

54. A Division Bench of this Court in Ramachandran v. State of Kerala (1996 (1) KLT 296), in a similar case examined the question whether the offence alleged was punishable under Section 3(2)(v) of the SC/ST (PA) Act. The Division Bench in para 16, explained the legal position thus:

CRA No.609/2011 -44-

"This Act was enacted to prevent atrocities against members of Scheduled Castes and Scheduled Tribes and to provide special courts for trial of such offences. "Atrocity" is defined in Sec. 2 (1) (a) to mean an offence punishable under Sec. 3. Sec. 3 creates independent offences relating to such atrocities and they stand by themselves. To attract Sec. 3 (2) (v) the following ingredients must be established:

1) The offender should not be member of a Scheduled Caste or a Scheduled Tribe;

2) he must commit an offence under the Indian Penal Code punishable with imprisonment for a term of 10 years or more;

3) the commission of such offence must be against a person or property of a member of a Scheduled Caste or a Scheduled Tribe ;

4) the offence must have been committed on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe.

All the above ingredients must be established by the prosecution before requesting the court to enter a conviction under this Section. The burden is certainly on the prosecution in this respect as in any other criminal cases. The accused is a Tamilian and Ext P15 certificate issued by the Tahisildar shows that his caste is not known. The court below appears to have entered a conviction only CRA No.609/2011 -45- because the accused states that he is a Thiyya (which is not a fact) and the victim belongs to a Scheduled Tribe. It is not proved that the accused is not a member of a Scheduled Caste or a Scheduled Tribe. The prosecution ought to have investigated into this aspect and obtained a certificate from the concerned Tamilnadu authorities as to the community to which the accused belongs and the fact whether he is a member of a Scheduled Caste or a Scheduled Tribe. No evidence is adduced by the prosecution to show that the accused committed rape on PW l on the ground that she is a member of a Scheduled Tribe. It is not enough if the victim is a member of a Scheduled Caste or a Scheduled Tribe. The offence must have been committed because the victim is a member of a Scheduled Caste or a Scheduled Tribe. The cause for the offence must contain an element of racial prejudice."

55. The Apex Court in a later decision, viz. Dinesh alias Buddha v. State of Rajasthan {(2006) 3 SCC 771} explained the legal position thus in para 15:

"Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or the Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the victim since she CRA No.609/2011 -46- was a member of a Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3 (2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine."

Herein, the victim, of course, is a member of Scheduled Caste and the appellant is a member of Hindu-Thiyya community. But apart from stating that she is a member of the Scheduled Caste, there is no evidence to show that it is only because of racial difference the accused is alleged to have committed the crime. The necessary elements have not been brought in evidence. The requirement being that the offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or Scheduled Tribes, there should be evidence to establish this requirement, as held by the Apex Court in Dinesh's case {(2006) 3 SCC 771}. The same legal position stands reiterated in Ramdas and others v. State of Maharashtra {(2007) 2 SCC 170}. Therefore, the mere fact that the victim happened to be a woman belonging to a Scheduled Caste will not attract the provisions of the Act. We had occasion to consider the very same issue in Stephen Joseph v. State of CRA No.609/2011 -47- Kerala (2013 (2) KLT 58). One of us (A.V. Ramakrishna Pillai, J.) has held that "to attract the provisions of the Act, the offence should have been committed with racial prejudice."

56. In the light of the above, we are of the view that the prosecution has not established the case against the appellant beyond reasonable doubt. Accordingly, we hold that the conviction and sentence awarded against the appellant cannot be sustained. We therefore allow the appeal and the accused is acquitted from all charges.

(T.R.RAMACHANDRAN NAIR, JUDGE) (A.V. RAMAKRISHNA PILLAI, JUDGE) kav/

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