Kerala High Court
Girish vs State Of Kerala on 18 February, 2025
Criminal Appeal No.26 of 2014
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2025:KER:13205
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
CRL.A NO. 26 OF 2014
AGAINST THE JUDGMENT DATED 21.12.2013 IN SC NO.271 OF
2008 ON THE FILE OF THE COURT OF SESSION, PATHANAMTHITTA.
APPELLANT/ACCUSED:
GIRISH,
S/O.PARAMESWARAN, VALIYAVEETTIL VADAKKETHIL,
NEAR MAMPATTAYIL TEMPLE,
ADINADU SOUTH MURI,
ADINADU VILLAGE, KARUNAGAPPALLY TALUK,
KOLLAM DISTRICT.
BY ADVS.
SRI.C.B.SREEKUMAR
SRI.M.VIJESH KUMAR
RESPONDENT/RESPONDENT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
(CRIME NO.760 OF 2007 OF ADOOR POLICE STATION).
BY ADV OMAR SALIM
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12.02.2025, THE COURT ON 18.02.2025 DELIVERED THE
FOLLOWING:
Criminal Appeal No.26 of 2014
2
2025:KER:13205
C.S.SUDHA, J.
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Criminal Appeal No.26 of 2014
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Dated this the 18th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellant who is the sole accused in S.C.No.271 of 2008 on the file of the Court of Session, Pathanamthitta, challenges the conviction entered and sentence passed against him for the offences punishable under Sections 417, 366 and 376 IPC.
2. The prosecution case is that the accused suppressing the fact that he was already married and has children, on the promise of marriage enticed PW1 aged 17 years out of the keeping of her lawful guardian and on 23/08/2007 at 09:00 a.m. took her to Ammachiveettil Temple, Kollam and married her by tying a thali. She was then brought back to her house. Thereafter, on 24/08/2007 at 12 mid-night, he took her to house bearing no.XII/284, Vilavunkal Panchayath, that is the house of PW3, his Criminal Appeal No.26 of 2014 3 2025:KER:13205 uncle, and engaged in coitus, making her believe that he was her lawful husband. Hence, the accused as per the final report/charge sheet is alleged to have committed the offences punishable under Sections 417, 366, 363 and 376 IPC.
3. Crime no.760/2007, Adoor police station, that is, Ext.P11 FIR was registered by PW8, the then Sub Inspector of police based on Ext.P1 FIS of PW1. Investigation was conducted by PW8, the then S.I., Adoor police station, who on completion of investigation submitted the final report before the jurisdictional magistrate alleging the commission of the offences punishable under the aforementioned Sections by the accused.
4. On appearance of the accused, the jurisdictional magistrate after complying with all the necessary formalities contemplated under Section 209 Cr.P.C., committed the case to the Court of Session, Pathanamthitta. The case was taken on file as S.C.No.271/2008 and thereafter made over to the Additional Sessions Court, Adhoc-III, Pathanamthitta for trial and disposal. As per G.O.(P) 22/09/SWD dated 03/06/2009 and SRO 446/09, the Sessions Court was designated as the Special Court for trial of Criminal Appeal No.26 of 2014 4 2025:KER:13205 offfences against Children or of Violation of child rights under the Commission for Protection of Child Rights Act. Hence the case was withdrawn to the Court of Session, Pathanamthitta for trial and disposal.
5. On appearance of the accused before the trial court, charge under Sections 417, 366, 363 and 376 IPC was framed, read over and explained to the accused to which he pleaded not guilty.
6. On behalf of the prosecution, PW1 to PW8 were examined and Exts.P1 to P19 were got marked in support of the case. After the close of the prosecution evidence, the accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence. He further submitted that PW1 was in love with him ; that she demanded that he marry her and that he declined to marry her without the consent/concurrence of his parents. So PW1 was angry with him and she questioned his masculinity (ഞ ൻ ആണത Criminal Appeal No.26 of 2014 5 2025:KER:13205 ഇല തവന ണണന പറഞ .) .
7. As the trial court did not find it a fit case to acquit the accused under Section 232 Cr.P.C., he was asked to enter on his defence and adduce evidence in support thereof. No oral or documentary evidence was adduced on behalf of the accused.
8. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment found the accused guilty of the offences punishable under Sections 417, 366 and 376 IPC. He has been sentenced to rigorous imprisonment for one year for the offence punishable under Section 417 ; to 10 years rigorous imprisonment and fine of ₹20,000/- for the offence punishable under Section 366 IPC and in default to undergo simple imprisonment for a period of six months and rigorous imprisonment for ten years and to a fine of ₹25,000/- for the offence punishable under Section 376 IPC and in default to simple imprisonment for a period of one year. He has been directed to pay an amount of ₹1,00,000/- as compensation under Section 357(3) Cr.P.C. to PW1, the victim, Criminal Appeal No.26 of 2014 6 2025:KER:13205 and in default to undergo rigorous imprisonment for two years. The sentences have been directed to run concurrently. Set off under Section 428 Cr.P.C. has been allowed. Aggrieved, the accused has come up in appeal.
9. The only point that arises for consideration in this appeal is whether the conviction entered and sentence passed against the accused/appellant by the trial court are sustainable or not.
10. Heard both sides.
11. It was submitted by the learned counsel for the accused/appellant referring to the court charge, which reads - "the accused by deceitful inducement of a promise to marry CW1, a minor, suppressing the facts that you were already married and had two children, took CW1 from her house XXII/264 of Pallikkal Panchayat in Pallikkal Village from the lawful guardianship and from the Ammachiveettil Temple in Kollam you tied a 'thali' on CW1 and brought her back to the house and on 24.8.07 at about 12 midnight you took CW1 from her house aforesaid and took her to XII/284 of Vilavunkal Panchayat belonging to CW3 and from Criminal Appeal No.26 of 2014 7 2025:KER:13205 these engaged in sexual relation with CW1 posing as her lawful husband and thereby committed offences punishable u/s 417, 366, 363 and 376 IPC and within my cognizance", that it was not a mere promise of marriage given by the accused. Going by the prosecution case itself, the accused/appellant took PW1 to a temple and married her by tying a thali, which is a proper solemnization of the marriage. Therefore, it was not "mere promise of marriage" by the accused/appellant. Further, the prosecution case that the accused was already married at the time of the incident has not been proved. The alleged wife was never made a witness or examined to prove the earlier marriage. There is no material on record to show that the accused was already married at the time of the incident. The testimony of PW1, the victim, would make it quite clear that the coitus was consensual. PW1 was above 16 years at the time of the incident and as per Section 375 as it stood then an offence of rape would be made out only if the girl was under 16 years of age. Here PW1 was above 16 years of age and the coitus was consensual and so there is no question of the offence of rape being made out and hence the trial Criminal Appeal No.26 of 2014 8 2025:KER:13205 court committed a gross mistake in convicting the accused for the aforesaid offences, goes the argument.
11.1. Per contra, it was submitted by the learned Public Prosecutor that there is ample material on record to prove all the offences alleged against the accused/appellant. There is no infirmity in the findings of the trial court calling for an interference by this Court.
12. I make a brief reference to the materials on record relied on by the prosecution in support of the case. Ext.P1 is the first information statement given by PW1 to the police. In Ext.P1, it is stated that on 23/08/2007 at 09:00 a.m., the accused went to the house of PW1 and took her to Ammachiveettil Temple, Kollam and on the same day at 10:30 a.m. he married her by tying a thali. PW1 returned home at around 01:30 p.m. On 24/08/2007 at around 12:00 a.m. the accused came to the house of PW1 and took the latter on his motor bike to Thiruvananthapuram. PW1 and the accused stayed at a rented house at Karamana. They stayed there till 10/09/2007. Accused told PW1 that one of his relatives had died and so they need to Criminal Appeal No.26 of 2014 9 2025:KER:13205 return to his native place. The accused then took PW1 to PW3, his uncle's house, at Vallikkavu where they reached by about 01:00 a.m. On the same day at around 12:30 p.m. police from Karunagappally police station came to the house. The police informed her that a complaint has been filed by the wife of the accused. It was then she came to know that the accused was married and had two children. In Ext.P1 FIS she admits that the physical relationship with the accused was consensual.
12.1. PW1 when examined stands by the version given in Ext.P1 FIS. She reiterated in the box that it was with her consent that they had engaged in coitus. She gave Ext.P1 FIS when she realised that the accused was married and had children also. It is true that apart from the testimony of PW1 there is no other witness to support her case as PW3, the uncle of the accused has also turned hostile. However, the testimony of PW1 has not been discredited in any way. On the other hand, the main aspects deposed by her to the effect that she was unaware of the fact that the accused was married and had children is not seen challenged or cross examined while PW1 was in the box. Therefore, the Criminal Appeal No.26 of 2014 10 2025:KER:13205 materials on record show that the accused on the promise of marriage had taken her to a temple and married her by tying a thali and thereafter PW1 under the belief that he is her lawful husband, consented to coitus with him.
13. Section 415 IPC says that whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat". Deceiving in the Section means a false and fraudulent representation as to a matter of fact made in order to induce a person to act thereupon. To induce a person to believe that a thing is true which is false and which the person practicing the deceit knows or believes to be false. Generally speaking, 'deceiving' is to lead into error by causing a person to believe what is false or to disbelieve what is true and such deception may Criminal Appeal No.26 of 2014 11 2025:KER:13205 be by words or by conduct. (Swami Dhirendra Brahmachari v. Shailender Bhushan, 1995 CriLJ 1810: 1994(28) DRJ 362).
13.1. The testimony of PW1 reveals that she was misled into believing that the accused was her lawful husband and hence had consented to the coitus. Therefore the finding of the trial court on Section 417 IPC does not require any interference.
14. Now coming to Section 366 IPC which deals with kidnapping, abducting or inducing a woman to compel her marriage, etc. As per this Section any person who kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, is liable to be punished with imprisonment and fine. The Section also says that whoever by means of criminal intimidation as defined in the Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be forced or seduced Criminal Appeal No.26 of 2014 12 2025:KER:13205 to illicit intercourse with another person is also liable to be punished. The trial court has acquitted the accused of the offence under Section 361 IPC, that is, kidnapping from lawful guardianship, punishable under Section 363 IPC. According to the trial court, PW1 herself admitted that she had accompanied the accused on her own accord. Therefore, it was found that the ingredients of the offence under Section 361 IPC had not been made out. Likewise the ingredients of the offence under Section 366 IPC are apparently not made out. Therefore the trial court went wrong in convicting the accused for the offence under Section 366 IPC also. Hence interference into the said finding is necessary and I do so.
14.1. Finally coming to the offence under Section 376 IPC. The incident took place in the year 2007. As per Section 375 as it stood then, a man is said to commit "rape" when he has sexual intercourse with a women with or without her consent when she is under 16 years of age. Here the materials on record show that PW1 was 17 years at the time of the incident. PW1 admits that they had engaged in coitus which was consensual. Criminal Appeal No.26 of 2014 13
2025:KER:13205 However, she had given her consent under the belief that the accused was a bachelor and believing that he was her lawful husband. She never knew at the time of her marriage or thereafter when they had engaged in coitus several times, that the accused was married and had children. After the marriage they lived together till 10/09/2007. On 11/09/2007, based on the complaint of the wife of the accused, the police came to the residence of PW3, where she and the accused were residing and it was only then she was told that the accused was already married and had two children. Pursuant to the same, she had given Ext.P1 FIS. The medical evidence also establishes the case of sexual intercourse. As noticed earlier, the testimony of PW1 has not been discredited in any way. There is practically no cross- examination or challenge to the testimony of PW1 that she had engaged in coitus under the belief that the accused was her lawful husband and that she came to know about his earlier marriage only when the police came to their place of residence on 11/09/2007.
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15. In Pramod Suryabhan Pawar v. State of Maharashtra, 2019 KHC 6829: (2019) 3 SCC (CRI) 903, the primary contention advanced by the prosecutrix therein was that the appellant/accused engaged in coitus with her on the false promise of marrying her, and therefore her "consent", being premised on a "misconception of fact" (promise to marry), stands vitiated. It has been held that where a woman does not "consent" to the sexual acts described in the main body of Section 375 IPC, the offence of rape is made out. While Section 90 IPC does not define the term "consent", a "consent" based on a "misconception of fact" is not consent in the eyes of the law. Consent with respect to Section 375 IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. An inference as to consent can be drawn only based on evidence or probabilities of the case.
"Consent" is also stated to be an act of reason coupled with Criminal Appeal No.26 of 2014 15 2025:KER:13205 deliberation. It denotes an active will in the mind of a person to permit the doing of the act complained of. "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was a consent or not, is to be ascertained only on a careful study of all the relevant circumstances. In the context of a promise to marry, there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. If it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the Criminal Appeal No.26 of 2014 16 2025:KER:13205 rape as defined under Section 375 IPC and can be convicted for the offence under Section 376 IPC. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to get her consent to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent".
15.1. Thus, the court must examine whether at an early stage a false promise of marriage by the accused was made and whether the consent of the prosecutrix involved was given after wholly understanding the nature and consequences of the sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases have to be treated differently. Hence, there must be adequate evidence to show that at the relevant time, that is, at the initial stage itself, the Criminal Appeal No.26 of 2014 17 2025:KER:13205 accused had no intention whatsoever, of keeping his promise to marry the victim.
15.2. In Yedla Srinivasa Rao v. State of Andhra Pradesh, 2006 KHC 1927 : 2006 (11) SCC 615 the accused forcibly established sexual relations with the prosecutrix therein. When she asked the accused why he had spoilt her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with her. When the prosecutrix became pregnant, the accused refused to marry her. When the matter was brought before the panchayat, the accused admitted to the sexual intercourse with the prosecutrix but thereafter absconded. In the said factual background, it was held that the intention of the accused as per the testimony of the prosecutrix was right from the beginning, not honest and that he kept on promising that he will marry her, till she became pregnant. The evidence on record showed that the intention of the accused right from the beginning was not bona fide and that the girl had submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent obtained by the Criminal Appeal No.26 of 2014 18 2025:KER:13205 accused cannot be said to be any consent because she was under a misconception of fact that the accused intended to marry her, therefore, she had submitted to sexual intercourse with him.
15.3. I also refer to the dictum of a learned Single Judge of this Court in Sunil Kumar v. State of Kerala, 2013 KHC 468 in which it was held that there is no straight jacket formula in ascertaining whether there is consent in a particular case. A decision regarding this has to be arrived at on the basis of the facts and circumstances of each case and in the light of the evidence adduced in the case. Merely because the victim was aged about 16 years is not a ground to presume consent. Girls of tender age can easily be induced away with promise of marriage. Each case will have to be considered with reference to the evidence available on record. If a woman indulges in sex believing that the accused would marry her, consent may be inferred. Mere promise of marriage without anything more does not constitute misconception of fact. But if the accused made a promise, knowing it be false from the very inception, to the victim and had sexual intercourse and later retracts from his Criminal Appeal No.26 of 2014 19 2025:KER:13205 promise, certainly, there is no consent at all. Instances are several where the victim indulges in sexual intercourse on the basis that the accused promised to marry the victim and the victim believes in that promise. It is true that a mature woman is capable of knowing the pros and cons of her acts. Section 90 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. But for the consent given by the victim, the act would be illegal and would amount to rape. Difficulty arises when one is called upon to ascertain the state of mind of a person at a particular point of time. Whether the accused at the inception had the intention to deceive the victim or whether it was a subsequent promise of marriage or whether it was a mere promise of marriage etc. are matters which are difficult to be ascertained. In order to come to the conclusion regarding the said matters, the conduct of the accused before, during or after the incident will have to be considered. In order to ascertain whether there was consent on the part of the victim also, the same Criminal Appeal No.26 of 2014 20 2025:KER:13205 standard has to be applied. Her conduct before, during and after the incident has to be ascertained. The potential of consent lies in its authority to metamorphose an act that is wrong into one which the law will permit.
16. Coming back to the case on hand, as noticed earlier, there was no forcible coitus as such in this case, but the consent of PW1 was obtained on a misconception of fact, that is, PW1 was made to believe that the accused was her lawful husband. The accused during the course of the trial took up a case of complete denial. He has no case that PW1 was aware of his marital status and that she still had consented to the physical relationship. In these circumstances, I find no reason to disbelieve PW1. I find that the ingredients of the offence under Section 375 have been clearly established and so no infirmity in the finding of the trial court calling for an interference by this Court.
17. Now coming to the sentence to be imposed on the accused. 18 years have elapsed since the incident. The accused at the time of the incident was 32 years and a priest in a Criminal Appeal No.26 of 2014 21 2025:KER:13205 temple. As per Section 376 as it stood then, an offence of rape was punishable for a term which shall not be less than seven years but which may be for life or for a term which may extend to 10 years and fine. However, the proviso says that the court may for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term less than seven years. In the facts and circumstances of the case, I think the interest of justice would be served by imposing a sentence of simple imprisonment for three months for the offence punishable under Section 417 IPC and six months for the offence under Section 376 IPC. The trial court has committed a mistake in imposing fine as well as compensation under Section 357(3) Cr.P.C. Therefore, the fine that has been ordered to be paid is set aside. The compensation that has been ordered to be paid under Section 357(3) Cr.P.C. shall be raised to an amount of ₹1,50,000/-. The substantive sentence of imprisonment shall run concurrently. The accused is acquitted under Section 235(1) Cr.P.C. for the offence punishable under Section 366 Cr.P.C. Criminal Appeal No.26 of 2014 22
2025:KER:13205 In the result, the appeal is allowed to the aforesaid extent.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE ak