Kerala High Court
Kooda Rajan @ Koodakkal Rajan vs State Of Kerala on 7 February, 2025
Crl.Appeal No.216 of 2014
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2025:KER:9894
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946
CRL.A NO. 216 OF 2014
AGAINST THE JUDGMENT DATED 24.02.2014 IN SC NO.540 OF
2009 OF SPECIAL COURT FOR TRIAL OF OFFENCE U/A 33/1989,
THALASSERY.
APPELLANT/ACCUSED:
KOODA RAJAN @ KOODAKKAL RAJAN
AGED 43 YEARS,
S/O.KUNHIKANNAN, KOODAKKAL HOUSE,
KOLAYAD, KANNUR DISTRICT.
BY ADVS.
SRI.C.P.PEETHAMBARAN
SRI.JENIN JOSEPH
SMT.MINI.V.A.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
29.01.2025, THE COURT ON 07.02.2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.216 of 2014
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2025:KER:9894
C.S.SUDHA, J.
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Crl.Appeal No.216 of 2014
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Dated this the 7th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the appellant, the sole accused in S.C.No.540/2009 on the file of the Court of Special Judge for Trial of Offences under Act 33 of 1989, Thalassery challenges the conviction entered and sentence passed against him for the offence punishable under Section 376 IPC.
2. The prosecution case is that a year before 28/02/2009, the accused who belongs to the Thiyya community enticed PW1, a member of the scheduled tribe community and had coitus with her on the promise of marriage. However, when PW1 became pregnant, the accused refused to marry her. Thus, as per the final report/charge sheet, the accused was alleged to have committed the offences punishable under Section 376 IPC and Crl.Appeal No.216 of 2014 3 2025:KER:9894 Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (the Act).
3. Crime no.20/2009, that is, Ext.P10 FIR was registered by PW8, the then Additional Sub Inspector of Police, Peravoor, on the basis of Ext.P1 FIS of PW1. PW10, the Dy.S.P. conducted investigation in this case and on completion of investigation submitted the final report/charge sheet before the jurisdictional magistrate alleging the commission of offences punishable under the aforementioned sections.
4. 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, Thalassery. When the accused appeared before the trial court, a charge under Sections 376 IPC and 3(2)(v) of the Act was framed, read over and explained to the accused to which he pleaded not guilty.
5. On behalf of the prosecution PW1 to PW10 were examined and Exts.P1 to P14 were 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 Crl.Appeal No.216 of 2014 4 2025:KER:9894 incriminating circumstances appearing against him in the evidence of the prosecution. The accused denied all those circumstances and maintained his innocence.
6. 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 by the accused.
7. On a consideration of the oral and documentary evidence and after hearing both sides, the trial court by the impugned judgment acquitted the accused under Section 235(1) Cr.P.C. for the offence punishable under Section 3(2)(v) of the Act. However, he has been found guilty of the offence punishable under Section 376 IPC and hence he has been convicted to rigorous imprisonment for seven years and to a fine of ₹1,00,000/- and in default to rigorous imprisonment for one year. The fine amount, if realised, has been directed to be paid to PW1 as compensation under Section 357(1) Cr.P.C. Set off under Section 428 Cr.P.C. has been allowed.
8. The only point that arises for consideration in Crl.Appeal No.216 of 2014 5 2025:KER:9894 this appeal is whether the conviction entered and sentence passed against the appellant/accused by the trial court are sustainable or not.
9. Heard both sides.
10. It was submitted by the learned counsel for the appellant/accused that apart from the testimony of PW1, the victim there is no evidence including scientific evidence to support the prosecution case. The paternity of the child was never established. There is inordinate delay in reporting the matter to the police. It was also pointed out that, if at all there was any relationship, it was only consensual. Hence, no offence of rape is made out and therefore the findings of the trial judge are untenable and liable to be interfered with.
11. Per contra, it was submitted by the learned public prosecutor that admittedly PW1, the victim is a member of the scheduled tribe. Though there was no forcible rape, the consent of PW1 was obtained on misconception of facts and hence the ingredients of the offence under Section 375 IPC are clearly made out and therefore no interference is called for. Crl.Appeal No.216 of 2014 6
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12. I briefly refer to the evidence on record relied on by the prosecution in support of the case. Ext.P1 FIS of PW1 is seen recorded by PW7 on 28/02/2009 at 10:00 a.m. In the FIS, PW1 has stated that she was residing with her grandmother. The accused about a year back came to construct a house for her grandmother. During the construction period, the accused maintained cordial relations with her family. Even after the construction work was over, he used to contact her over mobile phone. She also used to meet him on her way to her father's house. One day while she was on her way to her father's house, the accused on the promise of marriage, enticed her and took her to the nearby forest area and had coitus with her. This act was repeated by the accused thereafter on several days. When she conceived, she informed the accused, who took her to the Co- operative Hospital, Thalassery. The doctor informed them that she was 8 ½ months pregnant. Thereafter, when she tried to call the accused, he never responded. She did not reveal the incident to anybody as she was afraid/scared. On 25/02/2009, she had abdominal pain and hence she was brought to the hospital by her Crl.Appeal No.216 of 2014 7 2025:KER:9894 relatives, on which date, she delivered a child. When she informed the birth of the child to the accused, the latter refused to take responsibility and told her that he was not ready to marry or take responsibility of a girl belonging to the scheduled tribe. She did not reveal the incident to anybody as the accused had promised to marry her. As the accused had cheated her and refused to maintain her or her child, necessary action may be taken.
13. PW1, when examined, stands by her case in Ext.P1 FIS. Nothing was brought out to discredit her testimony. It is true that no evidence regarding the paternity of the child of PW1 has been brought in by the prosecution. However, the paternity of the child is immaterial in a case of rape (Sisu Bhavan v. Joy Yohannan, 2008 (4) KHC 488 and Babu v. State of Kerala, 2013 (2) KHC 526). Even in the absence of evidence regarding paternity, the sole testimony of the victim, if credible, would be sufficient to prove the offence of rape. Here as noticed earlier, nothing was brought out to disbelieve the testimony of PW1. Now the question is whether the offence of rape as Crl.Appeal No.216 of 2014 8 2025:KER:9894 contemplated under Section 375 IPC is made out. The incident took place in the year 2008. Therefore, as per Section 375 IPC as it stood then, a man is said to commit rape if he has sexual intercourse with a woman without her consent. Consent is not defined under IPC. Section 90 IPC deals with consent known to be given under fear or misconception. It says that a consent is not such a consent as is intended by any Section of the Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.
14. Here, the prosecution case is that PW1 consented to coitus as the accused had promised marriage and therefore it was a consent given under misconception of facts. In Pramod Suryabhan Pawar v. State of Maharashtra, 2019 KHC 6829: (2019) 3 SCC (CRI) 903, the primary contention advanced by the prosecutrix 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 Crl.Appeal No.216 of 2014 9 2025:KER:9894 of fact" (the 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 if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in the mind of a person to permit the doing of 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 Crl.Appeal No.216 of 2014 10 2025:KER:9894 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 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 Crl.Appeal No.216 of 2014 11 2025:KER:9894 woman's "consent".
14.1. 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 accused had no intention whatsoever, of keeping his promise to marry the victim.
15. 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. Crl.Appeal No.216 of 2014 12
2025:KER:9894 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 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.
15.1. I also refer to the dictum of a learned Single Judge of this Court in Sunil Kumar v. State of Kerala, 2013 Crl.Appeal No.216 of 2014 13 2025:KER:9894 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 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 Crl.Appeal No.216 of 2014 14 2025:KER:9894 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 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. In the case on hand, it needs to be noted that PW1 is a girl belonging to the scheduled tribe. It is true that there Crl.Appeal No.216 of 2014 15 2025:KER:9894 was no forcible rape as such in this case. But how was the consent of PW1 obtained? PW1 deposed that accused promised to marry her and hence she consented to the coitus. PW1 has also deposed that it was only much thereafter she came to know that the accused was married and had children also. The accused during the trial took up a case of complete denial. He has no case that PW1 was aware of his marital status and that she had still consented to the physical relationship. He has no case that they were in a relationship or that PW1 was in love with him. The suggestion put to PW1 in the cross examination is that she had fabricated the case against the accused for extracting money from him. The accused when questioned under Section 313 Cr.P.C., denied all the incriminating circumstances spoken to by the prosecution witnesses. He submitted that he has no connection whatsoever with the case and that he is married and has children. As noticed earlier, nothing was brought out to discredit the testimony of PW1. There are no reasons as to why she should come up with a false allegation against the accused. The conduct of the accused and the victim before the incident, during the Crl.Appeal No.216 of 2014 16 2025:KER:9894 incident and after the incident needs to be taken into account. PW1 deposed that she came to be acquainted with the accused when the latter came to her grandmother's house for the purpose of constructing a house. He struck up a friendship with her and developed cordial relations with her family. Even after the construction works were over, he continued to maintain contact with her over the mobile phone. He used to meet her while she used to go to her father's residence. It was on her way to her father's house, the accused had enticed her on the promise of marriage, taken her to a nearby forest and had coitus with her. PW1 deposed that this act was repeated by the accused several times. When she missed her periods, she informed the accused. Both of them went to the hospital where the doctor confirmed that she was pregnant. Thereafter, the accused never contacted her and he refused to attend her calls. The evidence on record clearly shows that PW1 had given her consent under a misconception of fact, that is, on the promise of marriage given by the accused. No materials have come on record to show that PW1 was aware of the marital status of the accused and that despite the same she started Crl.Appeal No.216 of 2014 17 2025:KER:9894 and maintained physical relation with him. That being the position, I find that the trial court was right in holding that PW1's consent was obtained on a misconception of fact and hence the offence of rape is made out.
17. It was also submitted by the learned counsel for the appellant/accused that in case the court is not inclined to interfere with the impugned judgment, maximum leniency may be shown in the sentence to be imposed on the accused. The trial court has sentenced the accused to rigorous imprisonment for a period of seven years. As per Section 376 IPC as it stood then, a person who commits rape is liable to be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to life or for a term which may extend to ten years and fine. The proviso to the Section says that for adequate and special reasons to be mentioned in the judgment, the court has got the power to impose a sentence of imprisonment for a term less than seven years. The trial court has only awarded the minimum sentence contemplated under Section 376 IPC. No adequate and special reasons as Crl.Appeal No.216 of 2014 18 2025:KER:9894 contemplated under the proviso has been shown to bring down the sentence of imprisonment from the minimum term of seven years. Hence in these circumstances, I find no reasons to interfere with the conviction or sentence passed as per the impugned judgment.
The appeal sans merit is dismissed.
Interlocutory applications, if any pending, shall stand closed.
Sd/-
C.S.SUDHA JUDGE Jms