Karuvan Prasanthan v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN FRIDAY, THE 15TH DAY OF FEBRUARY 2013/26TH MAGHA 1934 CRL.A.No. 1323 of 2005 --------------------------S.C. No.190/2002 OF COURT OF SPECIAL JUDGE FOR THE TRIAL OF OFFEENCES UNDER ACT 33 OF 1989, THALASSERY. APPELLANT/ACCUSED: ------------------------- KARUVAN PRASANTHAN, S/O. KANNAN, AGED 33 YEARS, MAVILADI, KANNADIPARAMBA AMSOM MATHOAM DESOM, KANNUR DISTRICT. BY ADVS.SRI.A.K.ABDUL AZEEZ SRI.A.K.NIRMAL KRISHNAN RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. R. REMA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **P.BHAVADASAN, J. --------------------------------------Crl. Appeal No.1323 OF 2005 --------------------------------------Dated this the 15[th] day of February, 2013.** ## **J U D G M E N T** The accused was prosecuted for the offences punishable under Sections 376 and 417 of Indian Penal Code and under Section 3(1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. After trial, the accused was found guilty of the offence punishable under Section 376 IPC. He was, therefore, convicted and sentenced to suffer rigorous imprisonment for a period of seven years and to pay a compensation of Rs.50,000/- (Rupees fifty thousand only) to the victim PW2 and in default of payment of which to suffer simple imprisonment for three years under Section 357(2) of the Code of Criminal Procedure. Set off as per law was allowed. 2. PW2 is the victim in this case. She and the accused are neighbours. PW2 resides with her mother, father and sister in the same house. It is admitted by PW2 that for the last three years, she was having close acquaintance with the accused and that the accused used to go to the house of PW2 when she was **Crl.Appeal No.1323/2005** **2** alone at home. He used to compel her for sexual intercourse but she did not yield. Finally, on a day in the 2[nd] week of June 1999, the accused came and knocked at the door at about 9 p.m. PW2 opened the door and he entered the room and asked her not to make any noise. PW2 would say that because of her love towards him, she did not make a hue and cry while he entered the room. He compelled her to have sexual intercourse to which she initially objected and she told that the same could be done only after marriage. The accused promised that he would marry her and on that belief, she allowed him to have sexual intercourse. Thereafter, they had sexual contact on several occasions. When she became pregnant, she demanded the accused to marry her. Since he refused to marry her, Ext.P2 First Information Statement was laid. 3. PW6, Additional Sub Inspector of Police, Valapattanam received Ext.P2 First Information Statement and on that basis, registered a crime as per Ext.P2(a) First Information Report. Investigation was taken over by PW7. He had PW2 sent for medical examination. PW3 doctor examined PW2 and issued **Crl.Appeal No.1323/2005** **3** Ext.P1 certificate. PW7, in the meanwhile, prepared Ext.P5 scene mahazar. He had the accused arrested and sent for potency test and received Ext.P6 certificate. He recorded the statement of witnesses, completed the investigation and laid charge before the court. 4. The Judicial First Class Magistrate Court-II, Kannur took cognizance of the offence. On finding that the offences are exclusively triable by a Court of Sessions, the case was committed to Sessions Court, Thalassery. The said court framed charges for the offences punishable under Sections 376 and 417 IPC and Section 3(1)(xi) of SC/ST(PA) Act 1989. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution examined PWs 1 to 7 and had Exts.P1 to P7 marked. 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. **Crl.Appeal No.1323/2005** **4** 5. On an appreciation of the evidence, the court below found the accused guilty and convicted and sentenced him as already mentioned. The said conviction and sentence are assailed in this appeal. 6. Learned counsel appearing for the appellant contended that the conviction of the accused is based solely on the testimony of PW2 which does not get any corroboration at the hands of other witnesses. Even going by the evidence of PW2, according to the learned counsel, if at all there is sexual contact, it was with the consent of the victim who was aged 26 years. A reading of the evidence of PW2 clearly shows that there was no evidence of threat or misconception under which PW2 would have yielded to the demand made by the accused. Learned counsel pointed out that according to PW1, she had been having sexual contact with the accused for the last four months. But, on a reading of Ext.P1, according to the learned counsel, on the date of the examination, PW2 was found carrying for six months. Learned counsel pointed out that no offence under Section 376 IPC is seen made out. **Crl.Appeal No.1323/2005** **5** 7. Learned Public Prosecutor, on the other hand, pointed out that it is established that the accused had absconded and that would show his culpability. It is also pointed out that the lady was made to believe that he would marry her and it is under such circumstance, she had allowed him to have sexual intercourse with her. 8. After having heard the learned counsel for the petitioner, the learned Public Prosecutor and after having perused the records, this Court finds it difficult to sustain the conviction and sentence. The lady was aged 26 years at the relevant time. She gave evidence as PW2. She resides with number of persons in her house. On the date of the incident, she says that the accused came and knocked the door at 9 p.m and she opened the door. The accused asked her not to make any noise and when examined in court, she says that she had sex with him and thereafter the accused told PW2 that she need not worry as he would marry her at any cost. Her evidence however shows that thereafter on several occasions they had sexual contact. She would say that when she realised that she had conceived, she **Crl.Appeal No.1323/2005** **6** conveyed the news to the accused and then the accused told her that he would marry her after the marriage of his brother and sister. On 03.04.2000, she delivered a male child. She would say that the accused refused to marry her. Ext.P2 is the First Information Statement laid by her. This is the solitary evidence regarding the incident. 9. The court below was inclined to take a view that PW2 had allowed herself to be used for sexual contact by the accused under misconception. It is extremely difficult to accept that proposition. Going by the evidence of PW2, it would appear that it is after they had sex that the accused had promised to marry her. There is nothing to show that at any time when they had sexual contact, she had offered any resistance or had shown any sort of objection to the act. It has come out in evidence that there was a suggestion for a D.N.A test which did not take place because of the non co-operation of PW2. PW3 doctor had examined PW2. She would in her deposition say that at the time of examination, PW2 told her that she had been having sexual contact with the accused for the last four months. According to **Crl.Appeal No.1323/2005** **7** PW3, the foetus was six months old. This aspect, as rightly pointed out by the learned counsel for the appellant, remains unexplained. 10. On a reading of the evidence of PW2, it is extremely difficult to come to a conclusion that either she was threatened or she was made to believe that the accused would marry her, which made her to give consent for sexual contact. 11. The legal position has been settled in _**Uday** vs._ _**State of Karnataka**_ (AIR 2003 Supreme Court 1639) and in _**State of Rajasthan**_ vs. _**Mohd. Sharif and Others**_ (2009 KHC 5883). In Uday's case (supra), it was held thus: “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'. A false promise is not a fact within the meaning of the Code. There is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, **Crl.Appeal No.1323/2005** **8** because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them”. ## 12. In _**State of Rajasthan**_ vs. _**Mohd. Sharif and Others**_ (2009 KHC 5883), it was held that even though the victim is less than 18 years of age, it is not necessary that the act should amount to rape. 13. In the light of the principles laid down in the above decision, it is extremely difficult to accept the claim of PW2 that she had consented to have sexual contact with the accused on the belief that he would marry her. The lady was aged 26 years and the age passed the age of discretion. She must know the natural consequence of her acts. It is difficult, therefore, to hold that the offences are made out. Therefore, the appeal is allowed. The conviction and sentence are set aside. It is held that the accused is not found **Crl.Appeal No.1323/2005 9** guilty of the offence under Section 376 IPC. He is acquitted of the said offence. The bail bond stands cancelled. He is set at liberty forthwith. **P.BHAVADASAN JUDGE** smp