Kerala High Court
Biju vs State Of Kerala on 28 May, 2013
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
TUESDAY, THE 28TH DAY OF MAY 2013/7TH JYAISHTA 1935
CRL.A.No. 1180 of 2006 ( )
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AGAINST THE JUDGMENT IN S.C. 310/2003 of SESSIONS COURT, KOZHIKODE
(SPL.JUDGE FOR TRIAL OF SC/ST(PA)AC CASES)
APPELLANT(S)/ACCUSED :
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BIJU, ASARIKANDIYIL VEEDU,
MAVOOR AMSOM, CHERUPPA DESOM
KOZHIKODE DISTRICT.
BY ADV. SRI.P.V.KUNHIKRISHNAN
RESPONDENT(S)/COMPLAINANT AND STATE :
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STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
R1 BY PUBLIC PROSECUTOR SMT.S.HYMA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 28-05-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
BP
P.BHAVADASAN, J.
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Crl. Appeal No.1180 OF 2006
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Dated this the 28th day of May, 2013.
J U D G M E N T
The accused, who was prosecuted for the offences punishable under Sections 376 and 307 of the Indian Penal Code and Section 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, was found guilty of the offence punishable under Section 376 IPC and was convicted and sentenced to undergo rigorous imprisonment for a period of eight years and was also directed to pay compensation of Rs.50,000/- to PW1 and in default of which to suffer rigorous imprisonment for a further period of two years. Set off as per law was allowed.
2. The proceedings originated on a private complaint filed by PW1 in this case. The said private complaint, which is marked as Ext.P1, was forwarded for investigation under Section 156(3) of the Code of Criminal Procedure. The allegation against the accused is that while PW1, the victim was undergoing a course in Crl.Appeal No.1180/2006 2 a Government ITC, she gained acquaintance with the accused who induced and lured her with a promise of marriage and made her believe that since they belonged to two different communities, their relatives and neighbours would not agree for their marriage and they would not be able to get a peaceful life and therefore it would be better to go to a distant place where they could lead a happy married life. Under that pretext, the accused, by giving an impression to his relatives that he is going to the middle- east for employment, made PW1, the victim to leave her house on 06.11.2000 as if she was going to College and they met at Calicut. They travelled together to Kollam where they stayed in a rented house. The allegation is that the accused continued his promise of marrying the victim and under that belief, she was made to consent for sexual intercourse in spite of her reluctance to the said course. Even though PW1 reminded and insisted that the marriage be gone through, it is claimed that the accused put it off under one pretext or another. However, he continued to make her to believe that he would marry her. In the meanwhile, the relatives of the accused Crl.Appeal No.1180/2006 3 became suspicious about his whereabouts and on enquiry they came to know that PW1 and the accused were staying at Kollam. The relatives came there and the accused and PW1 were forced to go to Kozhikode. The allegation is that on the way to Kozhikode, she was pushed out of the train by the accused who also fell down and both of them suffered injuries and they underwent treatment in the Medical College Hospital, Kozhikode for seven days. Thereafter the accused deserted her. Pointing out that the accused managed to have sexual intercourse making her a belief that he would marry her and they could lead a happy married life, she was deceptively made to yield to his sexual desire.
3. On getting Ext.P1 complaint, PW12, the Sub Inspector of Police, registered a crime as per Ext.P12 First Information Report. The preliminary investigation was conducted by PW13 who prepared Exts.P13 and P14 scene mahazars. Later, with the incorporation of offence under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, investigation was taken over by PW14. He recorded the statement of witnesses Crl.Appeal No.1180/2006 4 and the task of investigation was completed by PW15 who laid charge before the court.
4. The court before which the charge was laid found that the case is exclusively triable by a Special Court and therefore, committed the case to Special Court for Trial of SC/ST (PA) Act cases, Kozhikode. The said court, on receipt of the records and on appearance of the accused, framed charges for the offences punishable under Sections 376 and 307 IPC and Section 3(1)(xii) of SC/ST (PA) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had PWs 1 to 15 examined and Exts.P1 to P15 marked. The defence had Exts.D1 to D4 namely, inconsistent versions of Section 161 statement marked.
5. After the close of the prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. In addition to saying so, he pointed out that PW1 had taken a fancy for him though he was married and having two children and in spite of his best efforts, Crl.Appeal No.1180/2006 5 he was unable to convince her. Therefore, he thought of taking her to PW5 and make PW1 understand that her feeling for accused was misplaced and she should give it up. He would further say that they went to the house of PW5 and they stayed there for some days. Later on, when PW1 realized that the accused would not marry her, she changed her stand and demanded a huge amount which the accused was unwilling to pay and that had persuaded PW1 to lay the complaint.
6. On finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. The accused chose to adduce no evidence.
7. On an appreciation of the evidence in the case, the court below came to the conclusion that the offences under Section 307 IPC and Section 3(1)(xii) of the SC/ST (PA) Act are not made out and therefore, acquitted the accused of those charges. However, the court below came to the conclusion that offence under Section 376 IPC has been established and accordingly, convicted the accused and sentenced him as already mentioned. The said conviction and sentence are assailed in this appeal. Crl.Appeal No.1180/2006 6
8. Before going further, it may be useful to note that there is no appeal by the State regarding acquittal of the accused for the offences under Section 307 IPC and Section 3(1)(xii) of the SC/ST (PA) Act and therefore, the finding of the court below on those offences has become final.
9. Learned counsel appearing for the appellant contended that the court below, after having came to the conclusion that in all probabilities, PW1 at the relevant time must have known that the accused is a married person and then going on to hold that the accused had induced and lured PW1, the victim that he would marry her and that deceptive representation made her yield to his lust. Learned counsel pointed out that unlike in other cases, here is a woman who is literate and doing a course in an I.T.C and who was fully conscious about the consequences of her act, indulged in sexual relationship. Even though the court below, according to the learned counsel, had come to the conclusion that in all probabilities PW1 was aware of the fact at the relevant time when she left with the accused that he was a married man, there is nothing to show, according to him, that it was at the instance Crl.Appeal No.1180/2006 7 of the accused that the victim was made to go along with him. On the other hand, learned counsel went on to contend that the victim had voluntarily gone along with the accused and any physical relationship they had must be deemed to be with the consent of the victim. If, as a matter of fact, the victim was aware that the accused was married at the relevant time, her belief that he would marry her is totally misplaced and cannot be taken note of. She must be deemed to have a knowledge that it will not be possible to marry her.
10. As regards the question of consent, learned counsel for the appellant, relied on the decisions reported in Uday vs. State of Karnataka ((2003) 4 Supreme Court Cases 46) and in Babu vs. State of Kerala (2013 (2) KLT 574). Based on the principles laid down in the said decisions, it was contended that a mere promise to marry does not amount to misconception and in this case, from the evidence adduced, it was found by the court below that the victim was aware of the fact that the accused was already married, and therefore, there was no reason or justification to come to a conclusion that the victim was labouring Crl.Appeal No.1180/2006 8 under a misconception of fact and the accused was taking advantage of the same. Learned counsel went on to point out that the conviction and sentence are clearly unsustainable both on facts and in law.
11. Learned Public Prosecutor, on the other hand, pointed out that the court below, after having found that in all probabilities PW1 might have been aware of the marriage of the accused, went on to hold, on appreciation of the evidence in the case, that it was at the instance of the accused that PW1 was made to leave the place and indulge in sexual relationship. Attention was drawn to the fact that, in fact, there is evidence to show that PW1 was made to undergo a mock marriage and was made to believe that she had in fact become his wife. There is nothing to show, according to the learned Public Prosecutor, that PW1 has participated in the marriage function of the accused or that she was otherwise aware of the same. Further, at no point of time, did the accused divulge that he was married, and he succeeded in making her believe that he would marry her and he always kept alive that promise. This inducement or allurement Crl.Appeal No.1180/2006 9 advanced by the accused led the victim to believe that he would marry her and under that misconception she had yielded to the desire of the accused.
12. According to the learned Public Prosecutor, the principles laid down in the decisions already cited can be of no help to the facts and evidence in the case. At any rate, according to the learned Public Prosecutor, the court below who had an opportunity to watch the demeanour of the witnesses has chosen to accept the evidence regarding allurement and inducement and had come to the conclusion that the accused has made a misconception in the mind of PW1 and therefore, offence of rape was made out. Unless it is shown that the findings are perverse or are totally against the evidence in the case, even assuming that a different view is possible, the appellate court may not be justified in interfering with the conviction and sentence.
13. This case presents a very interesting scenario. PW1 is the victim. As rightly pointed out by the learned counsel for the appellant, she does not fall within the category of an illiterate person. She was doing a course in the Government I.T.C and she Crl.Appeal No.1180/2006 10 was capable of understanding the nature of the act. Bearing this in mind, the evidence in this case will have to be appreciated.
14. As is usual case, here also, the evidence regarding sexual attack is confined to PW1, the victim. The evidence of PW1 and others are sufficient to show that on 06.11.2000, PW1 had left her house as if she was going to the College. But she did not return home. It is also reasonably established that the accused had joined her at Calicut and they had gone to Kollam. With regard to these facts, there cannot be much dispute.
15. Even though the evidence of PW5 is to the effect that on reaching Kollam, the accused and the victim had taken shelter in his house and they had not indulged in any physical contact, it is difficult to believe the said statement of PW5 in the light of the evidence of PW1. PW1 has given evidence to the effect that the accused had purchased a thali and tied it around her neck making her a belief that he had married her. PW1 is also categoric in her stand that thereafter on several occasions they had engaged in physical contact. The evidence of PW2, the mother of the victim is to the effect that she had attended the Crl.Appeal No.1180/2006 11 marriage of the accused along with CW3. The evidence of PWs 1, 2, 4 and 9 would show that the accused and the family of PW1 were residing near to each other. True, PW1 states that she was unaware of the marriage of the accused. But, the court below, on consideration of the evidence of the witnesses, has come to the conclusion that in all probabilities it could be presumed that PW1 was aware of the existing marriage of the accused. Though there was a suggestion to PW1 that she figured in the video clips taken during the marriage of the accused, none of them were produced by the defence. It was very vehemently contended by the learned Public Prosecutor that non production of those documents which, the accused says, would reveal the presence of the victim at the time of his marriage, called for adverse findings against him. There is nothing to show, according to the learned Public Prosecutor, that PW1 was aware of the existing marriage of the accused. Though the argument may look attractive, it cannot stand scrutiny. It is too difficult to believe that when all persons in the locality especially, the mother of the victim, PW2 and her close relatives had attended the marriage, PW1 was even Crl.Appeal No.1180/2006 12 unaware of the same. More so, when it is seen from the evidence that the residence of the accused was not far away from the residence of the victim, as rightly noticed by the court below, the claim of PW1 that she was unaware of the existing marriage of accused can be taken only with a pinch of salt.
16. PW3 is the wife of the accused. They have two children. She would say that on 05.11.2000, the accused left the house under the pretext that he was going to the middle-east for employment. She believed him. Later she came to know that he was in the company of PW1 and he was traced out. If, as a matter of fact, one is to come to the conclusion that PW1 was aware about the subsisting marriage of the accused with PW3, whether there was a promise made by the accused that he would marry PW1 and whether she was labouring under such a misconception, is an important question that arises for consideration in appeal. It will be useful here to refer to the decision relied on by the learned counsel for the appellant . In the decision reported in Uday vs. State of Karnataka ((2003) 4 Supreme Court Cases 46), the facts indicate that the prosecutrix Crl.Appeal No.1180/2006 13 indulged in sexual relationship with the accused knowing fully that they belonged to different castes and the marriage between them is difficult. It was found that the prosecutrix was in deep love with the accused and he has taken advantage of that position. The Apex Court in the above decision has held that under those circumstances it could not be said that when the victim indulged in sexual activity with the accused, she was labouring under a misconception of fact. In paragraph 23, it was held as follows:
"Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the Crl.Appeal No.1180/2006 14 appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact".
17. In paragraph 25, analysing two conditions of Section 90 IPC, it was held as follows:
"There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of S. 90, I. P. C. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to Crl.Appeal No.1180/2006 15 meet with stiff opposition from members of both families. There was, therefore, a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 O'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome Crl.Appeal No.1180/2006 16 with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise.
18. In the decision reported in Babu vs. State of Kerala (2013 (2) KLT 574), in paragraph 27, it was held as follows:
"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 Crl.Appeal No.1180/2006 17 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 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;
Crl.Appeal No.1180/2006 18
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 S.90 I.P.C.;
l) The factors set out in the first part of S.90 are from the point of view of the victim.
m) The second part of S.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".
19. This Court had occasion to deal with the issue in an unreported decision in Criminal Appeal No.614/2006. The distinction drawn in all the above decisions is that if, as a matter of fact, the accused was aware of the fact that he would not marry the victim at the very inception itself and has induced and lured her to enter into physical relationship with him, then it could be said that the so called consent given by the victim is under a misconception of fact. However, the Apex Court has held that a mere promise to marry cannot be treated as a Crl.Appeal No.1180/2006 19 misconception of fact. The Apex Court has also cautioned that each case has to be dealt with on the facts of that case.
20. In the case on hand, even though PW1 asserts that she was unaware of the marriage of the accused, even as found by the court below, that cannot be readily accepted. Of course, one may not be able to accept the explanation offered by the accused at the time of questioning under Section 313 Cr.P.C. But, that does not relieve the burden of the prosecution to prove its case beyond reasonable doubt. Once it is found that PW1 knew that the accused was married, then the only way she could be made to believe that he would marry her is either by showing that the accused had promised to get a divorce or divorce proceedings were in progress. There is no such contention in the case on hand.
21. True, this Court is not forgetting the evidence of PW1 that she was unaware of the marriage of the accused. But, that, as already stated and as found by the court below, cannot be easily accepted. It is true that the evidence of PW1 shows that the accused had purchased a thali and tied it around her neck. Crl.Appeal No.1180/2006 20 But, this material aspect is conspicuously absent in Ext.P1 complaint. If, as a matter of fact, a mock marriage was taken place at the instance of the accused, it should have found a place in Ext.P1. The absence of any mention of the so called mock marriage played by the accused in Ext.P1 casts serious doubt regarding the version given by PW1 in that regard. It could not be said that the said version can be readily accepted and appear to be a conscious embellishment. If, under these circumstances, PW1 says that she still believed that the accused would marry her, one finds it difficult to accept it without hesitation. As already noticed, PW1 is doing a course in a Government ITC and she must have knowledge of the consequence of the act in which she indulged. May be she had taken a fancy for the accused and the accused had taken advantage of the same. But her claim that she was under a misconception that the accused would marry her and that she was unaware of the existing marriage of the accused is something which cannot be easily swallowed. PW1, who is aged 21 years at the relevant time, would have sufficient knowledge of the consequence of her act and if she Crl.Appeal No.1180/2006 21 believed that the accused would marry her and she consented for sexual contact, it could not be said that it was under a misconception of fact. At the risk of repetition, the claim of PW1 that the accused had concealed his marriage from her and she believed that he had not married is false.
22. One may have all sympathy for PW1. But, one has also to remember the plight of PW3 who is actually married to the accused and two children were born in that wedlock.
23. Under the above circumstances, applying the principles laid down in the decisions already cited, it is difficult to accept the finding of the court below that consent if at all any given by PW1 is under a misconception of fact falling within the ambit of Section 90 IPC. The evidence appears to be otherwise. The mere fact that PW1 would have strongly believed that the accused would marry her would not by itself be a misconception of fact. This Court is unable to accept the finding of the court below that offence under Section 376 IPC has been made out.
In the result, the appeal is allowed. The conviction and sentence under Section 376 IPC are set aside. It is held that the Crl.Appeal No.1180/2006 22 accused is not guilty of the offence under Section 376 IPC and he stands acquitted of the said charge. If the compensation amount has already been paid, the same shall be refunded. His bail bond shall stand cancelled and he is set at liberty forthwith.
Sd/-
P.BHAVADASAN JUDGE smp // True Copy // P.A. To Judge.