Kanakaraj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **MONDAY, THE 25TH DAY OF MARCH 2013/4TH CHAITHRA 1935** **CRL.A.No. 611 of 2006 ( ) --------------------------** **AGAINST THE JUDGMENT IN SC.690/2004 of SESSIONS COURT,THODUPUZHA AGAINST THE JUDGMENT IN CP.60/2004 of JUDICIAL FIRST CLASS MAGISTRATE COURT-II, PEERUMEDU** **----------** **APPELLANT/ACCUSED::** **-------------------** **KANAKARAJ, S/O.AYILRAJ DHARMAVATI DIVISION LAYAM, ARNAKAL ESTATE MANJUMALA VILLAGE.** **BY ADVS.SRI.C.M.TOMY SRI.MATHEW SKARIA** **RESPONDENT/COMPLAINANT::** **------------------------** **STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV. PUBLIC PROSECUTOR SMT.R.REMA RCW1 BY ADV. SRI.JOY JOSEPH (MUNDACKAL)** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-03-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **VK** ## **P.BHAVADASAN, J. --------------------------------------Crl. Appeal No.611 OF 2006 --------------------------------------Dated this the 25[th] day of March, 2013.** ## **J U D G M E N T** The appellant was prosecuted for the offences punishable under Section 376 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. He was found guilty for the offence punishable under Section 376 IPC and convicted and sentenced to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs.1,00,000/- and in default of payment of which to suffer rigorous imprisonment for a further period of one year. It was also directed that if the fine amount was collected, it should be given to PW1 as compensation. He was acquitted for the offence under Section 3(2)(v) of the SC/ST (PA) Act. 2. The victim and the accused in this case were residing in adjacent rooms of a line building belonged to Aranakkal estate. They were quite acquainted with each other. The allegation is that on 21.03.2002, the accused came over to the room of the **Crl.Appeal No.611/2006** **2** victim when she was all alone there and committed sexual assault on her in spite of the resistance made by the victim. After the act, the accused is alleged to have promised to marry her and later on it was happened that she had conceived. When she insisted for marriage, the accused refused and when she went to the house of the accused, she was turned down by the parents of the accused. Therefore, she laid Ext.P1 complaint. 3. Ext.P1 complaint was recorded by PW7 who registered a crime as per Ext.P1(a) First Information Report. Investigation was taken over by PW8. He prepared Ext.P2 scene mahazar and seized M.Os 1 and 2, the clothes worn by the victim at the time of occurrence by Ext.P3 mahazar and recorded the statement of witnesses. He had the victim sent for medical examination by PW4 and obtained Ext.P4 certificate. After the arrest of the accused, he had him subjected to potency test and obtained Ext.P5 certificate. He had the clothes seized during investigation sent for chemical examination and obtained certificate. He completed the investigation and laid charge before the court. 4. The court before which final report was laid took **Crl.Appeal No.611/2006** **3** cognizance of the offence. On finding that the offence is exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Thodupuzha for trial and disposal. The said court, on getting records, framed charges for the offences punishable under Section 376 IPC and Section 3(2)(v) of SC/ST (PA) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution, therefore, had examined PWs 1 to 10 and had Exts.P1 to P14 marked. M.Os 1 and 2 were got identified and 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. On finding that the accused could not be acquitted under Section 232 Cr.P.C, he was asked to enter on his defence. But he chose to adduce no evidence. 6. On an appreciation of the evidence in the case, the trial court came to the conclusion that offence under Section 376 IPC had been made out and accordingly convicted the accused as already mentioned. The said conviction and sentence are **Crl.Appeal No.611/2006** **4** assailed in this appeal. 7. Learned counsel appearing for the appellant pointed out that the court below has omitted to note the statements given by PW1 when she was recalled and cross examined further. During that examination, she has practically admitted that there were physical contacts frequently and it was with her consent that all physical contacts were made. It is also brought out in further cross examination that the appellant and the victim are residing together and the victim and the child are being looked after by the accused. These aspects have been omitted to be noted by the court below that has resulted in a wrong decision being taken. In support of his contention that if at all there was any physical contact, it was with her consent and the promise to marry did not amount to misconception, the learned counsel relied on the decision in _**Uday** vs._ _**State of Karnataka**_ (2003 Supreme Court Cases (Cri) 775). It is contended that the in the light of the above decision, the conviction and sentence cannot stand. 8. Learned Public Prosecutor, on the other hand, pointed **Crl.Appeal No.611/2006** **5** out that the answers given in further cross examination was due to compulsion and that should be ignored in the light of the fact in the earlier occasion, the witness had clearly said that sexual assault has been committed. The court below has considered the evidence in detail and come to the conclusion that the offence has been made out. According to the learned Public Prosecutor, no grounds are made out to interfere with the findings of the court below. 9. The incident is said to have taken place on 21.03.2002. PW1 learnt that she is pregnant on 28.04.2002. Her case is that when she came to know that she was pregnant, she insisted the accused to marry her and the accused refused to do so. PW1's further case is that she had gone to the house of the accused and his father turned her down. Even after doing so, she laid a complaint only on 06.06.2002. 10. The material evidence in this case is that of PW1, the victim. In chief examination, she would say that on the date of the incident i.e. on 21.03.2002, the accused had come to her room when she was all alone and had ravished her. He promised **Crl.Appeal No.611/2006** **6** to marry her after the incident and when she learnt that she is pregnant, she conveyed the message to the accused who refused to marry her. She would also say that she was threatened with dire consequences if she made the issue public. In cross examination, on the first occasion, she maintained her stand that it was against her consent that sexual assault was made. But, when she was recalled and further cross examined on 20.02.2006, there was complete change of stand and she almost gave up the entire case spoken to in the chief examination and in the earlier cross examination. She in no less terms admits that she was forced to give the earlier statement by her family members and the Police and if at all there was any physical contact, it was with her consent. Her evidence would say that they had physical contacts on several occasions and on all those occasions, it was with her consent. She in no less terms admitted that she had not been subjected to intercourse by force or threat. She also admitted that she is residing along with the accused and the accused is looking after her and the child. A totally different case is brought out at the time of further cross **Crl.Appeal No.611/2006** **7** examination. 11. A reading of the evidence of PW1 would say that she has no consistent case regarding the incident. On the earlier occasion, she maintains that there was forced sexual assault but at a later stage, she came forward with a case that it was with her consent. She was fully aware of the consequences of having physical contact. Even assuming that she had been subjected to sexual intercourse on the promise of marriage that may not be sufficient to attract the offence punishable under Section 375 IPC going by the principles laid down in _**Uday** vs._ _**State of Karnataka**_ (2003 Supreme Court Cases (Cri) 775) relied on by the learned counsel for the appellant. In the said decision, in paragraph 16, referring to the decision of the High Court of Calcutta, it was held as follows: “16. The High Court of Calcutta has also consistently taken the view that the 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. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. In Jayanti Rani Panda **Crl.Appeal No.611/2006** **8** v. State of W.B the facts were somewhat similar. The accused was a teacher of the local village school and used to visit the residence of the prosecutrix. One day during the absence of the parents of the prosecutrix he expressed his love for her and his desire to marry her. The prosecutrix was also willing and the accused promised to marry her once he obtained the consent of his parents. Acting on such assurance the prosecutrix started cohabiting with the accused and this continued for several months during which period the accused spent several nights with her. Eventually when she conceived and insisted that the marriage should be performed as quickly as possible, the accused suggested an abortion and agreed to marry her later. Since the proposal was not acceptable to the prosecutrix, the accused disowned the promise and stopped visiting her house. A Division Bench of the Calcutta High Court noticed the provisions of Section 90 of the Indian Penal Code and concluded :(Cri LJ p.1538, para 7). "The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In **Crl.Appeal No.611/2006** **9** such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC 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." 12. There is no dispute with regard to the fact that the victim had conceived and she had given birth to a child. Going by the evidence of PW1 as of now available, she and her child are being looked after by the accused and she has no case that there was forced sexual assault. In the light of the above, it is extremely difficult to confirm the findings of the court below that the offence has been made out. Therefore, the appeal is allowed and the conviction and sentence for the offence punishable under Section 376 IPC are set aside. He stands acquitted of the said offence and he is set at liberty forthwith. His bail bond shall stand cancelled. If the fine **Crl.Appeal No.611/2006 10** amount has already been paid, the same shall be refunded to him. **P.BHAVADASAN JUDGE** smp