Philipose @ Jaiby v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **TUESDAY, THE 20TH DAY OF AUGUST 2013/29TH SRAVANA, 1935** ## **CRL.A.No. 117 of 2008 (D)** **---------------------------------------------------------------** **SC.NO. 165/2007 OF SESSIONS COURT, KOTTAYAM** ## **APPELLANT/ACCUSED:** **----------------------------------------** **PHILIPOSE @ JAIBY,S/O.PHILIP, AGED 28 YEARS, MATTAPARAMBIL HOUSE, VEROOR KARA, CHETHIPUZHA.** **BY ADV. SRI.A.P.SUBHASH** ## **RESPONDENT/COMPLAINANT:** **----------------------------------------------------** **THE STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY GOVERNMENT PLEADER SRI. ROY THOMAS** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-08-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **P.BHAVADASAN, J.** **--------------------------------------Crl. Appeal No.117 OF 2008 --------------------------------------Dated this the 20[th] day of August, 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 Section 3 (2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. He was found guilty of the offences punishable under Sections 376 and 417 IPC but was acquitted of the offence under Section 3(2)(v) of the SC/ST (PA) Act. He was convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1 lakh with default clause of rigorous imprisonment for one year more under Section 376 IPC and to undergo rigorous imprisonment for one year under Section 417 IPC. The substantive sentences were directed to run concurrently. It was also directed that if the fine amount is realised, the entire amount shall be paid to PW1 as compensation. Set off as per law was also allowed. 2. PW1 is the victim in this case. She was working as **Crl. Appeal No.117/2008** **2** home nurse in the house of one Devasia. In the house where she was working, they were two aged persons namely, Devasia and his wife. They have only one daughter and as she was staying along with her husband, PW1 was engaged to look after the aged parents as well as the entire household affairs. PW1 was initially recruited from Red Cross at Kottayam which provides Home Nurse services and later on she resigned from the organisation and continued as home nurse in the house of Devasia. 3. The allegation is that the accused who was a neighbour to the house where PW1 was working used to come to the house and they fell in love with each other. It is alleged that the accused on several occasions promised to marry the victim and ultimately, in January 2003, on a particular day, when one of the inmates of the house was not at home and the other was bedridden, the accused happened to come to the house to replace bulb. It is stated that the accused induced the victim to have sexual intercourse with him. Though she offered resistance at the first instance, on his insistence and on his promise to marry her at any cost, she succumbed to his lust. It is conceded **Crl. Appeal No.117/2008** **3** that thereafter on two or three occasions, they had sex. As a consequence thereof, the victim conceived. When the victim became five months pregnant, she insisted for marriage and then the accused is said to have told her that since she belonged to Pulaya community and he belonged to a Christian community, his parents will not be prepared to allow him to marry her and he too is not willing to marry her and that led to laying of Ext.P1 First Information Statement. 4. PW10, the Sub Inspector of Police, recorded Ext.P1 First Information Statement given by PW1 and on the basis of Ext.P11 First Information Report, registered a crime against the accused. Investigation was taken over by PW9 who prepared the scene mahazar and had PW1 examined by PW4 doctor. Ext.P3 is the relevant certificate. He recorded the statement of witnesses, completed the investigation and laid charge before court. 5. The court before which final report was laid took cognizance of the offence and on finding that the offences are exclusively triable by a Special Court, committed the case to Sessions Court, Kottayam. The said court, on receipt of records, **Crl. Appeal No.117/2008** **4** framed charges for the offences punishable under Sections 376 and 417 IPC and Section 3(2)(v) of the SC/ST (PA) Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 11 examined and Exts.P1 to P11 marked. 6. 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. 7. On finding that he 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. 8. On appreciation of the evidence in the case, the trial court came to the conclusion that offences under Sections 376 and 417 IPC are made out and accordingly, convicted and sentenced the accused as already mentioned. The said conviction and sentence are assailed in this appeal. 9. Learned counsel appearing for the appellant contended that the court below has erred both on facts and in law in coming **Crl. Appeal No.117/2008** **5** to the conclusion that the consent obtained from PW1 was vitiated by misconception of fact. It was pointed out that the victim was aged 24 years at the relevant time and she was capable of knowing the pros and cons of the act committed by her. She also knew the consequence of entering into a premarital sexual relationship and as she voluntarily entered into such a relationship, it could not be said that she was labouring under a misconception of fact. It is contended on behalf of the appellant that even assuming that the accused had promised to marry her, that by itself is not sufficient to constitute misconception of fact. 10. Relying on the evidence of PW1 to the effect that she believed when the accused told her about the stiff resistance offered by the parents of the accused for their marriage as they belonged to two different communities, it was contended that she was aware that their marriage could not take place and thereafter also as she had indulged in physical contacts with the accused, it can only be treated as a consensual act. Referring to the evidence of PW1 and Ext.P1, it was pointed out that in Ext.P1, **Crl. Appeal No.117/2008** **6** PW1 had no case that soon after she became pregnant, the matter was informed to the accused who asked her to keep it as secret. This statement made at the time of evidence is a clear embellishment to suit the convenience of the prosecution. The evidence of PW2, the mother of PW1, is to the effect that after she had come to know that her daughter was pregnant, she had gone to the house of Devasia to take her daughter back and she had contacted the parents of the accused who did not agree for the marriage. 11. Learned counsel appearing for the appellant placed strict reliance on the decision in _**Deepak Gulati** vs._ _**State of Haryana**_ (2013 (2) KLT 762 (SC)) to contend for the position that the principles laid down in the said case apply to the facts of the present case. It is contended that the principle that a mere promise to marry cannot constitute misconception of fact has to be applied to the facts of the case. It is also contended that in order to attract Section 417 IPC, there should be deception in the mind of the person at the very inception itself and there is no evidence in the case regarding the initial intention to deceive and **Crl. Appeal No.117/2008** **7** if that be so, offence under Section 417 IPC also cannot be attracted. It is therefore contended that the conviction and sentence cannot sustain. 12. Learned Public Prosecutor, on the other hand, contended that a close reading of the evidence of PW1 would reveal that the victim and the accused were in love for a long time and thereby the accused had gained confidence and trust of PW1. Thereafter it was easy for him to induce her for sexual intercourse on a promise of marriage which he had been assuring for a long time. According to the learned Public Prosecutor, PW1 is definite in her stand that when a move was made by the accused for sexual intercourse, she resisted and it was only on repeated promise of marriage that she let her submit herself to sexual intercourse. The statement by PW1 that she believed what the accused said cannot help the accused much in the sense that when the evidence of PW1 is read as a whole, it can be seen that she was in a helpless position and it was under that circumstance, such a statement was made. According to the learned Public Prosecutor, the accused was well aware of the fact **Crl. Appeal No.117/2008** **8** that there will be stiff resistance from his family members and still if he had promised to marry the victim and later retracted, it can only be taken as a deliberate way adopted by the accused to have sexual intercourse with her and he has no intention to marry her. It is not a case where there is only a mere promise of marriage. But it is a case where at the very inception itself the accused had given the impression that he would marry the victim. According to the learned Public Prosecutor, obviously, both the limbs of Section 90 of Indian Penal Code stand satisfied and therefore the consent if at all any given by the victim can only be under a misconception of fact. Therefore, it is contended that the court below was justified in coming to the conclusion that offence under Section 376 IPC is made out. 13. As regards the offence under Section 417 IPC is concerned, learned Public Prosecutor contended that there is no merit in the contention raised by the appellant at all. 14. In order to ascertain the state of mind of a person, his conduct before and after the incident will have to be taken note of. In the case on hand, the victim and the accused had fallen in **Crl. Appeal No.117/2008** **9** love and going by the evidence of PW1, it can be seen that the accused had at the very inception promised to marry her. He, at that point of time, knew very well that he was not going to marry her and he was giving false promise to her. It is with an intention to have sexual intercourse with her, he made such a promise and ultimately he had deprived of her. 15. Learned Public Prosecutor went on to point out that at any rate, the court below which had occasion to watch the demeanour of the witnesses has chosen to accept the version given by PW1 and since no serious infirmities are pointed out in the evidence of PW1, the finding of the court below need not be interfered with. It is by now well settled that in case of rape, the evidence of the prosecutrix assumes considerable significance and importance and the conviction can be based solely on the testimony of the victim provided it is found to be convincing, cogent and trustworthy. It is also well settled that the victim is not treated as an accomplice but she holds the position of an injured witness. Unless it is shown that she had a motive to deliberately and falsely implicate the accused or there are **Crl. Appeal No.117/2008** **10** inherent improbabilities in the evidence, it will not be prudent on the part of the court to look for corroboration. On the other hand, if, on appreciation of evidence, it is found that the evidence of the prosecutrix is open to doubt, then the court may well look for corroboration. One must remember that the offence of rape is committed in secrecy and it will be unwise to insist for direct independent evidence. 16. In the case on hand, as is usual case, as regards the incident, there is solitary evidence of PW1, the victim. She belongs to Pulaya community. She was working with the Red Cross at Kottayam from where her services were procured by the aged people who are staying near the house of the accused. She worked in the house of Devasia for two to three years. Later her evidence says that she left the organisation and taken up employment elsewhere and returned to the house of Devasia as an employee. She was mainly engaged to look after Devasia who was nearly 80 years of age. She would say that the accused is a neighbour of Devasia and that he very frequently used to visit his house that resulted in both of them getting acquainted with each **Crl. Appeal No.117/2008** **11** other which later blossomed into love. She then says that on a particular day in January 2003, wife of Devasia had gone out to meet a patient who was her relative and Devasia was bedridden. The accused had come home to change a bulb and while doing so, he took the victim to another room. When his intention became clear, PW1 would say that she resisted and objected to his move. But then the accused repeated his promise of marriage and made her succumb to his desire. PW1 further says that there were physical contacts on subsequent occasions also and as result of which she conceived. At the time of evidence, she would say that when she became pregnant she conveyed the information to accused and the accused advised her to keep it as secret. When the pregnancy became five months old, she repeated her demand for marriage and then the accused revealed that his parents were against their marriage and he could not marry her. 17. In cross examination, she has stated that she believed what the accused told her and also that she had disclosed the incident initially to one Thankamani who later informed the same **Crl. Appeal No.117/2008** **12** to the daughter of Devasia. She also stated in cross examination that none other than accused had sex with her. In cross examination, she asserts that initially she was not willing to have sex with him, and only on his promise that he would marry her and on the compulsion exerted by him that she had sex with him. 18. It will be useful at this juncture to refer to the decision relied on by the learned counsel for the appellant namely, _**Deepak Gulati** vs._ _**State of Haryana**_ (2013 (2) KLT 762 (SC)). The facts of the said case show that the prosecutrix therein was aged 19 years and she became acquainted with the accused. The girl was induced to go along with the accused and he had promised to marry her and she readily agreed. On the way, it is stated that they had sex and later on she was abandoned by the accused. On questioning by the warden of the hostel where the prosecutrix was staying, the incident was revealed and her father was informed. The accused is said to have continued his promise and had taken her to a temple. But, unfortunately, Police and the father were waiting for them. On facts, the Apex Court, held in paragraph 18 as follows: **Crl. Appeal No.117/2008** **13** “18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had _mala fide_ motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly, understanding the nature and consequences of 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 **Crl. Appeal No.117/2008** **14** beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was _mala fide_ , and that he had clandestine motives”. ## 19. In paragraph 23 of the judgment, it was held as ## follows: “23. To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant. According to the version of events provided by her, the prosecutrix had called the appellant on a number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived she went with him to the Karna lake where they indulged in sexual intercourse. She did not raise any objection at this stage and made no complaints to any one. Thereafter, she also went to Kurukshetra with the appellant, where she lived with his relatives. Hereto, the prosecutrix voluntarily became intimate with the appellant. She then, for **Crl. Appeal No.117/2008** **15** some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the appellant at the Birla Mandir. Thereafter, she even proceeded with the appellant to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married in court at Ambala. However, here they were apprehended by the Police”. 20. On a reading of the above decision and on carefully scrutinising the facts, it can be seen that there inducement was made and sexual intercourses were there when the promise of marriage subsisted. That would be clear from paragraph 23 of the judgment. It is not a case of false promise. But it is a case where the marriage did not take place due to reasons beyond the control of the accused. In the said case, the question of misconception of fact does not arise for consideration. In other words, there was no intention on the part of the accused to deceive the victim in the said case and they could not marry due to reasons beyond the control of the accused. 21. In the case on hand, the facts are entirely different. The evidence of PW1 is to the effect that the victim and accused had been in love for a long period. That shows that the accused **Crl. Appeal No.117/2008** **16** was able to win over the confidence and trust of the victim. This statement by PW1 that they had been in love for a long time will not seen challenged in cross examination. On the date of the incident, going by the evidence of PW1, she had resisted the move of the accused. But he repeated his promise of marriage which she believed and she let her herself subjected to sexual intercourse. As far as the accused is concerned, he retracted from the promise made on the ground that his parents are against their marriage. It could not be said that he had intention to marry her. He must know from the very beginning that his family members did not allow him to marry the victim. He must have been deemed to be fully aware of the fact when he made a promise of marriage to PW1 that he was not sincere about the same. He must be credited with knowledge that he knew that his parents will never agree and he will not be able to marry the victim. 22. Viewed from the side of the victim, it can be seen that she had fallen in love with the accused, believed blindly the promise given by the accused and had sex with him. It is true **Crl. Appeal No.117/2008** **17** that she was aged 24 years and she is a very capable lady. She must have also credited with the knowledge of the pros and cons of the act undergone by her. It was under the bonafide belief that the accused would marry her that she had sex with him. The statement of PW1 that as soon as she realised that she was pregnant, she had conveyed the information to the accused. She says that he asked her to keep it as a secret. This statement given at the time of evidence is conspicuously absent in Ext.P1. But there is no effective challenge regarding the said statement. When she was five months pregnant, she had again repeated and insisted for marriage. Then the accused revealed to her that he could not marry her due to the resistance offered by his parents. It could thus be seen that till that time, the victim was made to labour under the bonafide belief that the accused would marry her. It is therefore clear that the victim believed that the accused would marry her and he was fully aware of the fact that the consent obtained from the victim was by making her belief that he would marry her which he knew would not happen. It could be seen that both the limbs of Section 90 IPC are satisfied **Crl. Appeal No.117/2008** **18** and the consent if at all vitiated, it is vitiated by misconception of fact. 23. The court below was perfectly justified in coming to the above conclusion. If that be so, the finding of the court below that offence under Section 376 IPC is made out cannot be interfered with. Equally it set asides the contention that Section 417 IPC may not be attracted to the facts of the case. Of course, in order to attract the offence under Section 417 IPC, there should be an intention to deceive at the very beginning itself. For ascertaining the intention, the conduct of the person will necessarily have to be taken note of. It is revealed from the evidence that he first gained confidence, trust and faith of PW1 and thereafter by falling or pretending to be love with her, giving her the impression that he would marry and making her belief it to be so, he had sex with her while he knew that he will not be marrying PW1. He had no case at any point of time that he had offered to marry PW1. Therefore, it is clear that from the inception itself the accused had no intention to marry her. If that be so, offence under Section 417 IPC is made out. **Crl. Appeal No.117/2008** **19** 24. What now remains to be considered is the question of sentence. The court below has been extremely considerate with regard to sentence. The court below, after taking into consideration the facts and circumstances of the case, has sentenced the accused to undergo rigorous imprisonment for a period of five years only for the offence under Section 376 IPC while the minimum sentence prescribed by the Statute is seven years rigorous imprisonment. As far as the offence under Section 417 IPC, rigorous imprisonment for one year alone has been imposed. The substantive sentences were directed to run concurrently and set off was also allowed. The sentences awarded appear to be just and reasonable and no interference is called for in that regard also. In the result, the appeal is without merit and it is liable to be dismissed. I do so confirming the conviction and sentence passed by the court below. Sd/- ## **P.BHAVADASAN JUDGE** smp