Anoop.V.M vs The State Of Kerala on 10 April, 2025

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Kerala High Court

Anoop.V.M vs The State Of Kerala on 10 April, 2025

The sole accused in S.C. No.37/2019 on the file of Special Court for the trial of offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, Mananthavady has preferred this appeal challenging the judgment of conviction and order of sentence passed against him for offences punishable under Sections 420 and 511 of 376 of the Indian Penal Code and Section 3(2)(va), 3(1)(w)(i), 3(2)(v) of SC/ ST (POA) Act, 1989.

2. The prosecution allegation can be epitomized as follows; The accused who is not a member of a scheduled caste or scheduled tribe agreed to marry CW1 who belongs to the Cheruman community, a scheduled caste, and their marriage engagement ceremony was conducted on 28.01.2018. It was through a matrimony site they came into contact and the accused was aware that CW1 belongs to a scheduled caste. After the marriage engagement ceremony, when CW1 wanted to go abroad for her job, on 29.01.2018 the accused took her to Nedumbassery Airport in his taxi car, and en route, the accused took CW1 to a municipal guest house at Guruvayoor and attempted to commit rape Crl.Appeal No. 1491/2019 4: 2025:KER:31042 on her, inside room No.105 of the said guest house. Thereafter, the accused took CW1 to a hotel named 'Kottakkal Tower' situated at Nayathodu in Angamali village, and also to another hotel named Sree Guruvayoorappan Residency situated at Kakkanad Municipality and attempted to commit rape inside the rooms of the said hotels. The accused after molesting CW1 and attempting to commit rape on her, withdrew from his promise to marry CW1 and hence betrayed her. Hence, the accused is alleged to have committed the offences mentioned above.

3. On completion of the investigation, the final report was submitted before the Special Court for the trial of offences under the SC/ST (POA) Act, Mananthavady. The learned Special Judge took cognizance of the offences and the case was taken on file as S.C.No.37/2019 and process was issued to the accused. On appearance of the accused, procedure under section 207 of the Code of Criminal Procedure was complied with. After hearing both sides under Section 227 of the Cr.P.C., and perusal of records, the learned Special Judge, framed a written charge against the accused for the offences punishable under Sections 420, 376(2)(n), and 511 of 376 of the Indian Penal Code and Section 3(2)(va), 3(1)(w)(i), 3(2)(v) of Crl.Appeal No. 1491/2019 5: 2025:KER:31042 Scheduled Castes/ Scheduled Tribe (Prevention of Actrocities) Act. When the charge was read over and explained to the accused, he pleaded not guilty and claimed to be tried.

4. The prosecution in its bid to prove the charge levelled against the accused has altogether examined 34 witnesses as PW1 to PW34. Exhibits P1 to P36 are the documents exhibited and marked. After completion of prosecution evidence, when the accused was questioned under Section 313 of the Cr.P.C., he denied all the incriminating materials brought out against him in evidence. Since it was not a fit case to acquit the accused under Section 232 of the Cr.P.C., the accused was directed to enter on his defence and adduce any evidence, he may have in support thereof. But no evidence, whatsoever, was adduced from the side of the accused.

5. After trial, the accused was found guilty of the offences punishable under Sections 420 and 511 of 376 of the Indian Penal Code and Section 3(2)(va), 3(1)(w)(i), 3(2)(v) of SC/ST (POA) Act and convicted. The accused was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.25,000/- for offence punishable under Section 511 of 376 I.P.C. In default of payment of fine, the accused was ordered to undergo Crl.Appeal No. 1491/2019 6: 2025:KER:31042 simple imprisonment for a period of three months. The accused was sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs. 10,000/- for offence punishable under Section 420 of I.P.C. with a default clause to undergo simple imprisonment for a period of one month for offence punishable under Section 420 of I.P.C. The accused was sentenced to undergo rigorous imprisonment for a period of one year for offence punishable under Section 3(2)(va) of SC/ST (POA) Act. He was further sentenced to undergo simple imprisonment for a period of six months for offence punishable under Section 3(1)(w)(i) of SC/ST (POA) Act. For the offence punishable under Section 3(2)(v) of SC/ST Act, the accused was sentenced to undergo imprisonment for life and to pay a fine of Rs. 25,000/-. In default of payment of fine, the accused was ordered to undergo simple imprisonment for a period of six months. The substantive sentences of imprisonment were ordered to be run concurrently.

6. Before delving into the evidence adduced in this case, it is to be noted that it is a case in which a 29-year-old lady was allegedly molested and attempted to be raped by a 34-year-old unmarried man. The fact that the accused as well as the survivor of Crl.Appeal No. 1491/2019 7: 2025:KER:31042 this offence came into contact through a matrimony site and their marriage engagement ceremony was conducted on 28.01.2018 is not disputed. Now the allegation is that after the marriage engagement ceremony, when the victim lady wanted to go abroad, it was the accused who dropped her at Nedumbassery airport. But on the way to the airport, the accused molested her by patting her body and fondling her breast, and further, he attempted to commit rape after taking her to a guest house and two hotels, subsequently betraying her by reneging on his promise to marry her.

7. The law was set in motion in this case on the strength of the statement given by the survivor to a Women Civil Police Officer attached to Kambalakkad police station (PW21). The Assistant Sub Inspector of Police, Kambalakkad Police Station has registered the present case after verifying the said FIS, and Ext.P21 is the FIR registered in this case. When the survivor of this offence was examined as PW1, she had portrayed the entire matters that transpired in this case. According to PW1, during the period of occurrence in this case, she was working as an IT Administrator at Dubai. Two years prior to the incident in this case, she gave an advertisement in 'Kerala Matrimony' inviting marriage proposals. Crl.Appeal No. 1491/2019 8: 2025:KER:31042 Upon seeing the advertisement, the accused contacted her in the month of November 2017. Thereafter the accused came to her house to see her. Subsequently, in the month of January 2018, the accused as well as his mother and some others again came to her house for the bride viewing ceremony and expressed their interest in conducting the marriage. Thereafter, her family members visited the house of the accused and decided to fix the marriage. On 28.01.2018, their marriage engagement ceremony was conducted. According to PW1, she belongs to Cheruman Community, a scheduled caste and the accused belongs to Nambeesan Community, a non-SC/ST community. The accused told that he is not bothered about caste or religion. For her job purpose she wanted to go to Dubai on 01.02.2018. On 29.01.2018, at 9.00 p.m., the accused came to her house in a car to drop her at Nedumbassery Airport. Thereafter on 30.01.2018 at 3 a.m. she reached Guruvayoor in the car driven by the accused. Thereafter, the accused suggested to take a room and said that he was feeling sleepy and had a headache. Thereafter, he took a room in the municipal guest house, Guruvayoor. Thereafter, inside the said room, they talked each other. The accused then told that anyway we are going to marry and touched on her breast. Thereafter the accused attempted to have sexual intercourse Crl.Appeal No. 1491/2019 9: 2025:KER:31042 with her. Thereafter they vacated the said room by noon and went to Kakkanad. Thereafter, the accused took a room in a hotel named 'Guruvayoorappan Residency' at Kakkanad and they resided together in the said room on that night. There the accused touched on her body and attempted to rape her and she felt pain. On 31.01.2018, they vacated the said room and on the way to the airport they entered a hotel to freshen up and to have tea. In order to freshen up they took a room in the said hotel also. In that room also the accused attempted to have sexual intercourse with her. But she again felt pain. On the next day, she went to Dubai. Thereafter, she used to contact the accused over the phone. While things being so, after three months, the accused said that he is not interested in the marriage. Then she informed the same to her mother. Thereafter, her father discussed the matter with the accused's family members. Then there occured a quarrel between her father and the accused. Then, the accused said that he is not interested in the marriage as she is a lady who had undergone an abortion once. Thereafter onwards, the accused stopped contacting her over the phone. Thereupon, she filed a complaint before Kambalakkad Police and Ext. P1 is the said complaint. Prior to giving such a complaint, she also sent a complaint through email to the superintendent of Police, Crl.Appeal No. 1491/2019 10: 2025:KER:31042 Wayanad. Ext.P2 is the attached complaint with the email. When PW1 was confronted with a photo, after verifying the same, she deposed that the same was a photograph, which was taken when the ring was exchanged in connection with the engagement ceremony. The said photograph is marked as Ext.P3.

8. The doctor who conducted potency examination of the accused was examined as PW2. According to PW2, on 18.10.2018 at 3.30 p.m., he conducted potency examination of the accused and on examination, the accused was found capable of performing sexual act. The certificate issued by him is marked as Ext.P4.

9. The doctor who conducted the medico-legal examination of the victim was examined as PW3. According to PW3, on 17.10.2018 at 12.50 p.m., she examined the victim of this offence and issued a medico-legal certificate. Ext.P5 is the said certificate issued by her. Referring to Ext.P5 certificate, she deposed that on examination, the hymen of the victim was found intact and the vagina appeared to be normal. According to PW3, no external injuries were noted in the examination.

10. The Village Officer, Anjukunnu village, who issued a Crl.Appeal No. 1491/2019 11: 2025:KER:31042 certificate showing the caste of the accused was examined as PW4. The caste certificate issued by him is marked as Ext.P6. According to PW4, the accused belongs to the Hindu Nambeesan community.

11. The mother of the victim was examined as PW24. According to PW24, her daughter is a graduate in M.Sc. Computer Science. On 07.01.2018, the accused came to her house to see her daughter. But there was no one in her house on that day. Hence, the accused again came to her house along with his mother and aunt for bride viewing ceremony. Thereafter, on 18.01.2018, PW24 along with 24 other relatives went to the house of the accused and decided to conduct the marriage engagement function. Accordingly, on 28.01.2018 a marriage engagement function was conducted in the house of PW24 and rings were also exchanged between the proposed bride and groom. 40 guests from the side of the accused attended the ceremony. Photographs were also taken. Ext.P3 is one of the photographs taken on that occasion. Her daughter wanted to go to Dubai on 01.02.2018 from Nedumbassery airport for the job. On 29.01.2018 at 9.30 p.m., the accused came to her house and took PW24's daughter with him to drop her at Nedumbassery airport. Thereafter, her daughter went to Dubai from Nedumbassery airport. Crl.Appeal No. 1491/2019 12: 2025:KER:31042 While things being so, on 24.05.2018 the accused contacted her over the phone and informed her that he is not interested to marry her daughter. The accused also abused her in filthy language over the phone. The accused further stated that somebody told him that her daughter had previously undergone an abortion. Thereafter, her daughter sent a complaint through email to the District Police Chief. Then Police came and told that action would be taken after the arrival of her daughter from Dubai.

12. The Tahasildar, Vythiri Taluk, who issued the caste certificate showing the victim's caste was examined as PW29, and the certificate he issued was marked as Ext.P28. 13. The father of the victim was examined as PW31. He deposed that the marriage engagement ceremony of his daughter with the accused was conducted on 28.01.2018 in his house. The marriage proposal came through a matrimonial site named 'Kerala Matrimony'. Prior to the engagement on, 07.01.2018, the accused came to his house along with his mother and aunt to see his daughter and all of them liked his daughter and asked PW31 to come to their house. Accordingly on 18.01.2018, he along with 23 relatives went to the house of the accused and decided to conduct marriage Crl.Appeal No. 1491/2019 13: 2025:KER:31042 engagement ceremony. Thereafter, the engagement ceremony was conducted and his daughter and the accused exchanged rings as part of their custom. His daughter wanted to go abroad on 01.02.2018. As the flight was from Nedumbassery airport, on 29.01.2018, the accused came to his house to take his daughter to the airport. The accused assured him that he would drop her at the airport. Hence on 29.01.2018, his daughter left along with the accused in his car. Thereafter on 24.05.2018, the accused contacted his wife over the phone and abused her. Then he along with his neighbour Prabhakaran went to the house of the accused and then the accused asserted that he will never marry his daughter. 14. The fact that the accused and the victim of this offence came into contact with each other through a matrimonial site is admitted. The evidence of PW1, the victim as well as her parents clearly shows that after the mooting of the marriage proposal, the accused visited the house of the victim, along with his parents and thereafter, the marriage between the accused and the victim was fixed and a marriage engagement ceremony was conducted. It was thereafter, the accused allegedly molested the victim and attempted to commit rape on her, after taking her to a guest house and in two Crl.Appeal No. 1491/2019 14: 2025:KER:31042 hotels. Now the crucial question which is to be addressed is whether the victim was a consenting party to the alleged sexual acts and if so, whether the consent was vitiated by the misconception of fact that she would be married by the accused as already agreed by the accused.

15. While considering the question of consent, it is to be noted that it was to a guest house at Guruvayoor, the accused initially took the victim in the early morning of 30.01.2018. The evidence of PW1 reveals that after reaching the room in the guest house she went for a bath and thereafter came and laid in a bed. It was thereafter, the accused joined her in the bed. Thereafter, the accused fondled on her breast and attempted to have sexual intercourse with her. Similarly, the evidence of PW1 further shows that on 30.01.2018 itself they vacated the said room and the accused took her to another hotel at Kakkanad and again attempted to have sexual intercourse with her and they spent one night in the said hotel room. Thereafter, the accused took the victim in his car to drop her at Nedumbassery airport and on the way they entered into a hotel to fresh up and inside the room of the said hotel also, the accused attempted to have sexual intercourse with her.

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16. Evidently, PW1 is not having a case that the accused touched on her body or attempted to have sexual intercourse with her irrespective of any objection raised by her. There is no iota of evidence to show that the victim resisted the accused at any point of time when the accused approached her with sexual lust. Notably, the incidents occurred in one guest house and two hotels situated in different locations. As already stated, initially the victim accompanied the accused to a guest house at Guruvayoor where she spent time in bed with the accused without raising any objection. Her evidence suggests that she voluntarily went to take a bath and thereafter she laid on the bed where the accused joined her. Although the victim alleged that the accused attempted to commit rape on her inside the said guest house where she was initially taken, her subsequent conduct in accompanying him in two other hotels suggests that she was a willing participant in the act followed. More pertinently, even PW1 is not having a case that the sexual acts attributed to the accused were without her consent. Notably, the prosecution is also not having such a case. Despite this, the learned Trial Judge convicted the accused primarily with the aid of the presumption provided under Section 114A of the Indian Evidence Act, that when a victim says that the sexual intercourse was without her consent, it is Crl.Appeal No. 1491/2019 16: 2025:KER:31042 to be presumed that the same is not a consensual one. At this juncture, it is apposite to refer to the provision contained under Section 114A of the Indian Evidence Act;

"114A. Presumption as to absence of consent in certain prosecutions for rape.- In a prosecution for rape under clause

(a) or clause (b) or clause (c) or clause (d) or clause (e), clause

(f), clause (g), clause (h), clause (i), clause (j), clause (k), clause (l), clause (m) or clause (n) of sub-section (2) of section 376 of the Indian Penal Code, (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the women alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent."

From a plain reading of the abovesaid provision, it is doubtful whether a presumption under Section 114A can be drawn in a case alleging an offence of attempt to commit rape. It may be due to the reason that the court framed the charge under Section 376 (n) of IPC also against the accused, the trial court had drawn the presumption provided under Section 114A of the Indian Evidence Act. Anyway, as already stated in the case on hand even PW1 is not having a case Crl.Appeal No. 1491/2019 17: 2025:KER:31042 that the alleged molestation and the attempt to commit rape was without her consent. Only when a victim says that the alleged sexual intercourse was without her consent, a presumption under Section 114A of the Indian Evidence Act can legally be drawn. When the foundational fact that the alleged act was a non-consensual one is not proved, a presumption under Section 114A cannot be drawn.

17. Now the crucial question which is to be addressed is whether consent was given by the victim on misconception of fact. In view of Section 90 of I.P.C., if the consent is given by a person under fear of injury or misconception of facts, the said consent is vitiated. The misconception of fact alleged by PW1 is the accused's promise to marry her. Therefore, if a person gave a promise to a prosecutrix to marry without any actual intention to marry her and the prosecutrix gave the consent for sexual intercourse on such an assurance given by the accused that he would marry her, such consent can be said to be a consent obtained by misconception of facts as per Section 90 of I.P.C. In other words, there must be evidence to show that from the inception onwards, the accused was not having an intention to marry her.

18. The Hon'ble Supreme Court in Pramod Suryabhan Crl.Appeal No. 1491/2019 18: 2025:KER:31042 Pawar v. State of Maharashtra and Another (2019 (9) SCC

608) held that in the absence of allegation in F.I.R. that when accused promised to marry complainant, it was done in bad faith or with an intention to deceive her, it cannot be said that any offence under Section 375 is made out. In the said case, the Hon'ble Supreme Court observed as follows;

In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this court has observed that 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. 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 convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his words at the time of giving it. The "consent" of a woman under Section Crl.Appeal No. 1491/2019 19: 2025:KER:31042 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her.

19. Reverting back to the facts in the present case, it can be seen that the evidence adduced in this case reveals that it was after the mutual visit of the parents of both the accused and the victim to their respective houses, the marriage engagement ceremony was conducted. The said ceremony was attended by approximately 40 persons including relatives and neighbours of the accused. Photographs were taken and rings were also exchanged as a customary practice. The evidence of the neighbours reveals that they also attended the marriage engagement function. A sequential analysis of these events suggests that the accused did not harbour an intention to cheat the victim. The fact that the marriage engagement ceremony was conducted in the presence of 40 persons militates against the possibility of any ulterior motive such as sexual Crl.Appeal No. 1491/2019 20: 2025:KER:31042 exploitation. Therefore, at no stretch of imagination, it can be said that the accused did not intend to marry the victim when the marriage proposal was made and the engagement ceremony was conducted. Therefore, the assurance given by the accused to marry the victim was not a false promise. There is no evidence or circumstance to suggest that the accused did not intend to keep his promise to marry the victim when the promise was given. Therefore, it cannot be said that the consent for the sexual acts given by the victim is vitiated by any misconception of fact.

The upshot of the above discussion is that the prosecution has failed to adduce any convincing evidence to prove the commission of the offences charged against the accused. Resultantly, the appeal stands allowed and the judgment of conviction and order of sentence passed against the appellant/accused in S.C.No. 37/2019 on the file of Special Court for the trial of offences under the SC/ST (POA) Act, Mananthavady is set aside. Sd/-

                                               P.B. SURESH KUMAR
                                                   JUDGE

                                               Sd/-
                                         JOBIN SEBASTIAN
                                                    JUDGE
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