Kerala High Court
Sumesh vs State Of Kerala on 19 February, 2020
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
CRL.A.No.1231 OF 2017 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941
CRL.A.No.1231 OF 2017
AGAINST THE JUDGMENT IN SC 473/2013 DATED 19-12-2017 OF
THE FIRST ADDITIONAL SESSIONS JUDGE(SPECIAL JUDGE),PALAKKAD
(Crime NO.51/2013 OF Kozhinjampara Police Station)
APPELLANT/ACCUSED:
SUMESH
AGED 27 YEARS, S/O.CHENTHAMARA, VAZHUKKUPARA HOUSE,
VANNAMADA (P.O),PALAKKAD DISTRICT.
BY ADV. SRI.VISHNUPRASAD NAIR
RESPONDENT/COMPLAINANT/STATE :
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM, KOCHI-682031.
BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST
WOMEN & CHILDREN & WELFARE OF W & C
OTHER PRESENT:
UDAYA KUMAR SPL.PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-02-
2020, THE COURT ON 19-02-2020 DELIVERED THE FOLLOWING:
CRL.A.No.1231 OF 2017 2
P.B.SURESH KUMAR, J.
-----------------------------------------------
Criminal Appeal No.1231 of 2017
-----------------------------------------------
Dated this the 19th day of February, 2020.
JUDGMENT
This appeal is directed against the conviction of the appellant and the sentence imposed on him in S.C.No.473 of 2013 on the files of the First Additional Sessions Court, Palakkad.
2. The appellant is the sole accused in the case. The accusation against the accused is that in between April and September, 2012, the accused enticed the victim girl aged 17 years on the premise that he would marry her and had sexual intercourse with her in a lodge and also in a sugar-cane garden and thereby committed the offences punishable under Section 376 of the Indian Penal Code (IPC) and Section 3(a) read with Section 4 of the Protection of Children from Sexual Offences Act, 2012.
3. After hearing the parties, the court below has framed charge against the accused only under Section 376 of IPC. On the accused pleading not guilty of the charge framed against him, the prosecution examined 17 witnesses as PW1 to PW7 and PW9 to PW18 and proved 13 documents as Exts.P1 to P13. The accused was CRL.A.No.1231 OF 2017 3 thereupon questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the court did not consider the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon to enter his defence. The accused did not enter upon his defence.
4. Among the witnesses examined on the side of the prosecution, PW1 is the victim girl. She has also proved Ext.P1 First Information Statement. PW2 is the mother of the victim girl and PW3 is the father of the victim girl. PW4 is a friend of the victim girl. PW5 is the owner of the tailoring shop where the victim girl was learning tailoring. PW6 is the attestor to Ext.P2 scene mahazar. PW7 is the doctor who is stated to have examined the victim girl and issued Ext.P3 certificate. PW9 is the doctor who examined the accused. PW10 is the receptionist of the lodge where the accused is stated to have had sexual intercourse with the victim girl. PW11 is the Superintendent of Mahila Mandiram, Palakkad. PW12 is the attestor to Ext.P6 seizure mahazar. PW13 is the Headmistress of the school where the victim girl has studied. PW13 has proved Ext.P7 certificate issued by her. PW14 is the Police Officer who has taken the F.I. Statement. PW15 is the Police Officer who has registered the first information report. PW16 is the Village Officer who has prepared Ext.P9 scene CRL.A.No.1231 OF 2017 4 plan. PW17 is the investigating officer in the case who has also proved Ext.P10 arrest memo and Ext.P11 inspection memo. PW17 has also proved Ext.P12 report furnishing the particulars of the accused in the case. PW18 is the Village Officer who has prepared Ext.P13 scene plan.
5. On an appraisal of the materials on record, the court found that the accused is guilty of the offence punishable under Section 376 of the IPC and consequently, convicted him for the said offence and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.2,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of two years. The appellant is aggrieved by his conviction and sentence.
6. Heard the learned counsel for the appellant and the learned Public Prosecutor.
7. The learned counsel for the appellant vehemently contended that the materials on record do not justify the finding rendered by the court below that the accused is guilty of the offence punishable under Section 376 of the IPC. It was pointed out specifically that the materials do not indicate the age of the victim girl as alleged by the prosecution. It was also pointed out that the materials do not indicate that the accused had sexual intercourse with the victim girl. It was also pointed out that even if it is accepted that CRL.A.No.1231 OF 2017 5 the materials are sufficient to hold that the accused had sexual intercourse with the victim girl, the same are, at any rate, not sufficient to hold that the accused had sexual intercourse against her will and without her consent. Per contra, the learned Public Prosecutor submitted that the materials are sufficient to justify the findings rendered by the court below, on the basis of which the accused has been convicted and sentenced.
8. Before adverting to the contentions advanced by the learned counsel for the parties on either side, I shall refer to the materials relied on by the prosecution to prove the guilt of the accused. PW1 has stated that she fell in love with the accused while she was learning tailoring in a shop. She has stated that the accused had promised to marry her. She has stated that they had been to a lodge once and had physical relationship. She has stated that they had physical relationship at a sugar-cane garden as well. She has stated that when she became pregnant, she stayed back at her house and when she attempted to contact the accused then, he was not attending her calls. She has stated that when her parents realised that she was pregnant, they took her to a house in Palakkad where she stayed for two days. She has stated that she was thereafter taken to an Ashramam at Thrissur where she delivered a child. PW2, the mother of PW1 has stated that PW1 has informed her about her relationship with the accused. She has stated that, by the time, PW1 CRL.A.No.1231 OF 2017 6 was pregnant for seven months. PW2 has stated that PW1 was consequently taken to a Mahila Mandiram and later to an Ashramam in Thrissur where she delivered a child. PW3 is the father of PW1. He has also given evidence more or less in tune with the evidence tendered by PW2. PW4 has stated that PW1 was involved in a love affair with the accused. PW5 has stated that the accused used to call PW1 in the shop. PW7 has stated that he has examined one Sindhu aged 18 years and issued Ext.P3 certificate. PW10 is the receptionist of a lodge, who has deposed that police came there and prepared a mahazar. PW11 is the Superintendent of Mahila Mandiram, Palakkad, who has stated that PW1 was brought there by her mother and as PW1 was pregnant at that point of time, she has informed the matter to the police. PW13 is the Headmistress of the school where PW1 had studied. PW13 has proved Ext.P7 certificate. The aforesaid are in essence, the evidence relied on by the prosecution to prove the guilt of the accused.
9. As noted, the first and foremost thing to be proved in a case of this nature is as to the age of the victim girl. For proving the age of the victim girl, the prosecution should have either made available an authenticated copy of the School Admission Register of the victim or an authenticated copy of the Birth Register. The prosecution has not made available either of the said documents. Instead, a certificate stated to have been issued by the school, where CRL.A.No.1231 OF 2017 7 PW1 has studied, has been produced as Ext.P7 which recites that the date of birth of PW1 is 8.4.1995. In the light of the decision of the Division Bench of this Court in Sasi v. State of Kerala [2019(3) KLT 561], evidence in the nature of Ext.P7 is hit by Section 162 of the Code. In the absence of any evidence to prove the age of the victim girl, I am constrained to hold that the prosecution has failed to prove that the victim girl was aged 17 years at the time of the alleged occurrences.
10. As noted, the fact that PW1 had love affair with the accused has been admitted by PW1 herself in her examination. In the evidence tendered by PW1, she has stated about the physical relationship she had with the accused. I have absolutely no reason to doubt the veracity of the said evidence. But, the said evidence is to the effect that the physical relationship was consensual. The only question, therefore, is as to whether the victim had given consent to the accused to have physical relationship with her on account of misconception of facts.
11. It is now trite that the 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. At the same time, this Court is aware of the fact that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse in a CRL.A.No.1231 OF 2017 8 given case is voluntary, or whether it is given under a misconception of fact, and the same has to be resolved by the courts having regard to the evidence before it and the surrounding circumstances and having regard to the fact that it is the obligation of the prosecution to prove the said fact [See Uday v. State of Karnataka, (2003) 4 SCC 46]. As held by the Apex Court in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, there is a clear distinction between rape and consensual sex. It was clarified by the Apex Court in the said case, in the context of a similar case, that there may be cases 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 and that such cases must be treated differently. It is also held in the said case that an accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
12. Reverting to the facts, true it is stated by PW1 in her evidence that the accused had promised to marry her. But, that by itself will not be sufficient to come to the conclusion that there was misconception of fact. As noted, PW1 herself has stated in her CRL.A.No.1231 OF 2017 9 evidence that she fell in love with the accused. She has stated that she used to move around with the accused. She has stated that they had been to a lodge once and had physical relationship. Similarly, it was stated by her that they had been to a sugar cane garden on several occasions and once they had physical relationship there as well. As noted, the first information statement given by PW1 has been proved by the prosecution through her. The stand taken by PW1 in the said statement is that she had physical relationship with the accused on several occasions at the sugar cane garden. Be that as it may, in cross examination, the victim has stated that they had physical relationship even at her house when her parents were not available. Likewise, in cross examination, PW1 has stated that she had physical relationship with the accused even after she became pregnant. Further, it is seen that PW1 had no grievance against the accused. Neither PW1 nor her parents had informed the matter to the Police at any point of time, even after they came to know that PW1 was pregnant. Instead, going by the prosecution case, they only wanted to hide the pregnancy. It is only the Superintendent of the Mahila Mandiram, whom the parents of PW1 had approached for necessary help to hide the pregnancy, has informed the matter to the police. There is nothing on record to indicate that the accused had not intended to marry PW1 or that he had clandestine motives. There is no satisfactory evidence in this regard. In short, the facts and circumstances brought on record do not CRL.A.No.1231 OF 2017 10 reveal that this is a case where the victim had given consent to the accused to have physical relationship on a misconception of fact. In other words, I have no hesitation to hold that the prosecution has failed to prove the guilt of the accused.
13. In this context, I am constrained to observe that the investigation in this case was thoroughly unsatisfactory. As noted, sufficient materials were not collected by the investigating agency to prove the age of the victim. Further, the only document collected by the investigating agency to prove that the victim girl became pregnant was Ext.P3 which does not reveal even the address of the victim. Further, the whereabouts of the child stated to have been delivered by the victim girl have not been collected nor furnished. I wonder as to why investigation had not been conducted in this line, which would have certainly brought to light relevant facts. As noted, no material whatsoever was placed on record to prove the motives of the accused also. Needless to say, had there been a proper investigation, the possibility of a different conclusion in a case of this nature cannot be ruled out.
In the result, the Criminal Appeal is allowed. The conviction of the appellant and the sentence imposed on him by the Court of Session are set aside and he is acquitted. He shall be set at liberty forthwith and released from custody, if his continued detention is not required in connection with any other case. Registry is directed to CRL.A.No.1231 OF 2017 11 send the gist of this judgment forthwith to the concerned prison, where the appellant is undergoing incarceration.
Sd/-
P.B.SURESH KUMAR, JUDGE tgs