Robin Lorence v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI MONDAY, THE 1[ST] DAY OF NOVEMBER 2021 / 10TH KARTHIKA, 1943 CRL.A NO. 894 OF 2019** **AGAINST THE JUDGMENT AND SENTENCE IN SC 463/2015 DATED 13.07.2018 OF ADDITIONAL SESSIONS JUDGE-II (SPECIAL),** **KOTTAYAM** APPELLANT/ACCUSED: ROBIN LORENCE AGED 30 YEARS S/O LORENCE,VALIYAVILAYIL(H),CHELLIYAMPARA BHAGOM,VELLATHOOVAL P.O,VELLATHOOVAL KARA,VELLATHOOVAL VILLAGE,DEVIKULAM TALUK,IDUKKI DISTRICT,C.NO.2864,CENTRAL PRISON AND CORRECTIONAL HOME,POOJAPPURA,THIRUVANANTHAPURAM BY ADVS. SRI.S.RAJEEV SRI.K.K.DHEERENDRAKRISHNAN SRI.V.VINAY SRI.D.FEROZE SRI.K.ANAND (A-1921) ## **RESPONDENT/COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA 2 THE CIRCLE INSPECTOR OF POLICE KOTTAYAM SMT BINDU O V -PP THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2021, THE COURT ON 01.11.2021 DELIVERED THE FOLLOWING: Crl.A.No.894/2019 2 ## **R.NARAYANA PISHARADI, J ************************ Crl.A.No.894 of 2019 ------------------------------------Dated this the 1[st ] day of November, 2021 ------------------------------------------- ## **J U D G M E N T** The appellant is the sole accused in the case S.C.No.463/2015 on the file of the Additional Sessions Court-II, Kottayam. 2. The appellant/accused challenges the judgment of the trial court in the above case, convicting and sentencing him for the offences punishable under Sections 366 and 376 of the Indian Penal Code. 3. The prosecution case, in short, is as follows: The victim lady was in love with the accused, who was a married man. On 01.06.2014, the accused abducted the victim lady and tied a thali string on her neck in front of a temple. On Crl.A.No.894/2019 3 13.10.2014, at about 07:00 hours, while the victim lady was on her way to attend the tuition class, the accused took her on his motorcycle to a house taken on rent by him. Thereafter, the victim lady and the accused resided together in that house till 02.11.2014. During the period from 13.10.2014 to 02.11.2014, the accused committed rape on the victim lady on several occasions. 4. On the morning of 13.10.2014, the father of the victim lady, received a message in his mobile phone to the effect that she was leaving and that there was no need to make any enquiry about her. The father of the victim lady then went to the police station and gave Ext.P1 statement in the matter. On the basis of that statement, Ext.P15 F.I.R was registered as Crime No.1148/2014 of the Gandhi Nagar Police Station under Section 57 of the Kerala Police Act, for missing of woman. 5. On 02.11.2014, the police found out the victim lady and the accused from the rented house in which they were residing. PW19 Circle Inspector, who conducted the investigation Crl.A.No.894/2019 4 of the case, filed Ext.P17 report in the trial court for deleting Section 57 of the Kerala Police Act from the F.I.R and for incorporating Sections 366 and 376 of the I.P.C in it. After completing the investigation of the case, charge-sheet was filed against the accused for the offences punishable under Sections 366 and 376 of the I.P.C. 6. The trial court framed charge against the accused for the offences punishable under Sections 366 and 376(1) of the I.P.C. The accused pleaded not guilty and he claimed to be tried. 7. The prosecution examined the witnesses PW1 to PW19 and marked Exts.P1 to P18 documents and MO1 material object. No evidence was adduced by the accused. 8. The trial court found the accused guilty of the offences punishable under Sections 366 and 376 of the I.P.C and convicted him thereunder. The trial court sentenced the accused to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.50,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year for the offence Crl.A.No.894/2019 5 punishable under Section 366 of the I.P.C. The trial court sentenced the accused to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 376 of the I.P.C. The trial court also directed that the substantive sentences of imprisonment imposed on the accused shall run concurrently. 9. This appeal is filed by the accused challenging the conviction entered against and the sentence imposed on him by the trial court as above. 10. Heard the learned counsel for the appellant and also the learned Public Prosecutor and perused the records. 11. Out of the 19 witnesses examined by the prosecution, the material witnesses are PW1, PW2 and PW8. PW2 is the victim lady and PW1 is her father. PW8 is the doctor who examined PW2 at the Medical College Hospital, Kottayam and issued Ext.P2 medical certificate. Crl.A.No.894/2019 6 ## Evidence of PW1 12. PW1, the father of the victim lady, has given evidence in examination-in-chief as follows: On 13.10.2014, at about 07:00 hours, his daughter left the house for attending the tuition class. She did not return even after 10:00 hours. Then, a message came to his mobile phone to the effect “I am going. No enquiry to be made.” He then went to the police station and gave Ext.P1 statement. He thereafter saw his daughter on 02.11.2014 at the Gandhi Nagar police station. The accused was also there. The accused seduced his daughter promising that he would marry her and took her to a rented house and physically assaulted her. 13. On cross-examination, PW1 has stated that, on an earlier occasion, his daughter and the accused had been taken to the Changanassery police station and at that time, his daughter was sent along with him after giving a warning to the accused. He would also say that, if the accused had got no wife and children, he would have given his daughter in marriage to the Crl.A.No.894/2019 7 accused. ## Evidence of the Victim 14. PW2, the victim lady, has given evidence in examination-in-chief as follows: She was acquainted with the accused as he used to come to her house for repairing the cable television. She fell in love with the accused when she was studying in the college for degree course. One day in the month of June, 2014 the accused called her to come to Kumaranalloor Devi Temple. At the temple, he told her that, if he had to continue the relationship with her, he would have to tie a thali on her. He tied a thali string on her neck. Thereafter, she returned to her house. Subsequently, the accused called her over phone several times and told her that she had to live with him. One day, the accused called her over phone and asked her to go with him. She left her house on the pretext that she was going to attend the tuition class. The accused took her to the office of the cable television and thereafter to a rented house. She resided there for a period of twenty days. He compelled her and had sexual Crl.A.No.894/2019 8 intercourse with her. During that period, the accused did not allow her to contact with her family stating that the police would come and apprehend them. He did not give her phone to her. It was only when she was taken to the Gandhi Nagar police station that she came to know that the accused had wife and children. The accused had concealed the fact that he was a married person. 15. On cross-examination, PW2 has stated that, her date of birth is 30.12.1995 and that she was aged above 18 years at the time of the incident. She would say that, on an earlier occasion when she went along with the accused on a motorcycle, they had been taken to the Changanassery police station. ## Offence Under Section 366 I.P.C 16. Section 366 of the I.P.C states that, whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she Crl.A.No.894/2019 9 will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 17. In order to constitute the offence punishable under Section 366 of the I.P.C, the accused should have either kidnapped or abducted a person. In the instant case, the victim lady was above the age of 18 years. Therefore, in order to prove the offence under Section 366 of the I.P.C, the prosecution has to establish that the victim lady was abducted by the accused. 18. Abduction is defined under Section 362 of the I.P.C. It states that, whoever by force compels, or by any deceitful means, induces any person to go from any place, is said to abduct that person. In order to constitute the offence of 'abduction' a person must be carried off illegally by force or deception. 19. To constitute an offence under Section 366 of the I.P.C, it is necessary for the prosecution to prove, that the accused induced the woman or compelled her by force to go from any Crl.A.No.894/2019 10 place, that such inducement was by deceitful means, that such abduction took place with the intent that the woman may be seduced to illicit intercourse and/or that the accused knew it to be likely that she may be seduced to illicit intercourse as a result of her abduction. Once the prosecution leads evidence to show that the abducting of the woman was with the intention to force/seduce her to have illicit intercourse, the offence under Section 366 of the I.P.C is attracted. 20. As per the charge-sheet filed by the police, the accused had abducted PW2 twice, that is, on 01.06.2014 and on 13.10.2014. However, the trial court has framed charge against the accused under Section 366 of the I.P.C for abducting PW2 only on the date 01.06.2014. 21. With regard to the allegation that the accused abducted the victim lady on 01.06.2014, her evidence is that the accused called her and asked her to come to Kumaranalloor Devi Temple and when she went there, the accused tied a thali string on her neck. Crl.A.No.894/2019 11 22. With regard to the allegation that the accused abducted the victim lady on 13.10.2014, her evidence is only that one day the accused called her over phone and asked her to accompany him and that she left her house on the pretext that she was going to attend the tuition class. 23. The evidence of PW2 would reveal that, on 01.06.2014 as well as on 13.10.2014, she had voluntarily left her house when the accused called her. There is no evidence to find that the accused had compelled her to leave her house and to accompany him or that he had used any deceitful means and induced her to accompany him. There is no evidence that, the accused, by force or deception, had induced PW2 to leave her home and to accompany him. On both occasions, PW2 had left her house on her own volition. In such circumstances, it cannot be found that the accused had abducted PW2. Therefore, the prosecution could not prove that the accused committed an offence punishable under Section 366 of the I.P.C. Crl.A.No.894/2019 12 ## Plea of the Accused on the Charge of Rape 24. In the written statement filed by the accused after his oral examination under Section 313 Cr.P.C, he has stated as follows: He has been living separately from his wife from the year 2013 onwards. Subsequently, he fell in love with PW2 and they decided to live together. He had informed PW2 that he was a married person and he was living separately from his wife. PW2 had spoken to his wife over phone. On the basis of the complaint given by the parents of PW2, he was called to the Changanassery police station. At that time his wife had come to the police station and she had talked with PW2. The parents of PW2 used to assault her for the reason that she was in love with him. Therefore, at the instance of PW2, he brought PW2 with him and they started to live together. He had sexual intercourse with PW2, with her consent, when they were living together as husband and wife. 25. The accused has admitted that he was married and that he fell in love with PW2. His plea is that he had informed Crl.A.No.894/2019 13 PW2 that he was a married person but at the instance of PW2, he took her with him and that they lived together. The accused has also admitted that he had sexual intercourse with PW2 but his plea is that it was done with her consent and on her desire. ## Whether the Offence of Rape is Proved? 26. PW2 has deposed that the accused made sexual intercourse with her, while they were residing together, on compulsion. In other words, her evidence is that it was against her will that the accused made sexual intercourse with her. However, she had not given any statement to the police to the effect that it was on compulsion by the accused or against her will that he made sexual intercourse with her. This contradiction in the evidence of PW2, which has been proved through the Sub Inspector (PW15) who recorded her statement, is very material. Considering the facts and circumstances of the case, it is difficult to believe the testimony of PW2 that it was against her will that the accused made sexual intercourse with her. Crl.A.No.894/2019 14 27. PW8 doctor had examined PW2 at the hospital on 02.11.2014. She has given evidence that PW2 was brought to the hospital with the history of sexual intercourse with consent several times. It is also mentioned so in Ext.P3 medical certificate issued by PW8 which also reveals that the history was told by the victim herself to the doctor. 28. Explanation 2 to Section 375 of the I.P.C states that, consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. It is also provided that a woman does not physically resist the act of penetration shall not by the reason only of that fact, be regarded as a consenting party to the sexual activity. 29. Section 90 of the I.P.C states that, a consent is not such a consent as is intended by any section of the I.P.C, 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 Crl.A.No.894/2019 15 has reason to believe, that the consent was given in consequence of such fear or misconception. 30. Two conditions must be fulfilled for the application of Section 90 of the 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. 31. Consent for sexual intercourse means voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. 32. There is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse was voluntary, or whether it was given under a misconception of fact. The court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a Crl.A.No.894/2019 16 conclusion, 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. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides. 33. There is a clear distinction between rape and consensual sex. There may be cases where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by the accused. Acknowledged consensual physical relationship between the parties would not constitute an offence punishable under Section 376 of the Indian Penal Code. 34. This is not a case in which the allegation is that consent for sexual intercourse obtained from the woman was on a promise made by the accused to marry her. On the other hand, the allegation is that the victim was not aware that the accused was already married and that he tied a thali string on her neck in Crl.A.No.894/2019 17 a temple and therefore, she was under the impression that he had married her. 35. PW2 has given evidence that only when she was taken to the Ganghi Nagar police station that she came to know that the accused had wife and children. She has stated that the accused had concealed from her the fact that he was already married. 36. The crucial question is whether PW2 was aware of the fact that the accused was a married person. Reliability of her testimony in that regard is to be considered along with the attendant circumstances of the case. 37. PW2 and the accused were acquainted with each other for a long period before the accused tied thali on her. It has come out in evidence that, on an earlier occasion, when PW2 and the accused were travelling on a motorcycle, they were taken to the police station and then she was sent along with her parents from the police station. It is difficult to believe that even then the parents of PW2 did not enquire about the accused and his family Crl.A.No.894/2019 18 background. It is relevant here to note that PW1 has given evidence that he would have given his daughter in marriage to the accused if the accused was already not married. 38. It was on 01.06.2014 that the accused tied thali on her at the temple. Immediately thereafter they did not start to live together. It was only on 13.10.2014 that PW2 left her house to live with the accused. It is difficult to believe that, during that interval, PW2 was under the impression that there was a valid marriage conducted between her and the accused. If she was under the impression that a valid marriage was made by the accused, by putting a thali on her neck in front of a temple, she would have definitely persuaded the accused to take her to his house or to live together immediately thereafter. The very fact that she was very passive even after the tying of thali on her neck by the accused and that she did not take any interest in starting a marital life with the accused immediately thereafter would indicate that she was very well aware that there was no valid marriage. Still, on 13.10.2014, at the behest of the Crl.A.No.894/2019 19 accused, she voluntarily left her house and joined the accused and started to live together with him. They resided together in the rented house from 13.10.2014 to 02.11.2014. It was during that period that the accused made sexual intercourse with PW2. In such circumstances, it is difficult to believe that it was on account of any misconception of fact that PW2 gave consent for sexual intercourse with the accused. ## 39. In **Shivashankar v. State of Karnataka : (2019) 18** **SCC 204** , on more or less similar facts, the decision rendered by the Apex Court, reads as follows: _“2. The Appellant has preferred this appeal against the impugned order dated 22-09-2016 passed by the High Court of Karnataka in Criminal Petition No.769/2016, refusing to quash the criminal proceedings in C.C. No. 6820/2015 arising out of Crime No. 254/2014, for the offence punishable Under Sections 376, 420, 323 and 506 of the Indian Penal Code (for short, the 'IPC')._ _3. The gravamen of the charge against the Appellant-accused is that he has raped Respondent No.2-complainant. We find from the_ Crl.A.No.894/2019 20 _complaint filed by the complainant that Respondent No. 2-complainant has lived with the Appellant for period of about eight years._ _4. Further, Respondent No. 2-complainant has stated that the Appellant "pretended to have loved me" on the promise of marriage, that he applied the Kumkum on her forehead, and tied the Arishina thread to her neck. She further stated that she has been treating the Appellant as her husband for the past eight years, and now he is trying to escape from her and cheat her._ _6. Though we are not here concerned with the question whether the Appellant and the - complainant Respondent No.1 were, in fact, married, we have no doubt that they lived together like a married couple even according to the complainant._ _7. In the facts and circumstances of the present case, it is difficult to sustain the charges levelled against the Appellant who may have possibly, made a false promise of marriage to the complainant._ _8. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as 'rape' especially in the face of the complainant's own allegation_ Crl.A.No.894/2019 21 _that they lived together as man and wife”._ (emphasis supplied) It is true that, in the above case, the parties had lived together as husband and wife for eight years. In the present case, it was only for 20 days. Except for this, facts in the two cases are almost similar. 40. In **Dhruvaram Murlidhar Sonar v. State of Maharashtra : AIR 2019 SC 327,** the victim was a widow. The accused had informed her that he was a married man and that he had differences with his wife. The victim had fallen in love with the accused. They started residing together. They were living together, sometimes at her house and sometimes at the residence of the accused. They were in a relationship with each other for quite some time and enjoyed each other's company. When she came to know that the accused had married some other woman, she lodged the complaint. In the light of these facts, the Apex Court observed as follows: _“It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the_ Crl.A.No.894/2019 22 _things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained”._ 41. The facts in **Vinod Kumar v. State of Kerala** : [ **(2014) 5 SCC 678** ] are more or less akin to the facts of the present case. In that case, the trial court found the accused guilty of the offence punishable under Section 376 of the I.P.C. In that case, the prosecutrix was twenty years old and was studying in a college. On the fateful day, when she did not return home from college, her father conducted a search which proved to be futile. On the next day, he lodged the FIR. The prosecutrix had entered into a contract of marriage with the accused at the Sub Crl.A.No.894/2019 23 Registrar's office. The accused was a person already married. The accused pleaded that he had informed her that he was already married and had two children and that he had given his marriage photographs to her but she asked him to divorce his wife. The accused also raised the plea that sexual intercourse transpired was with the free consent of both persons. The prosecutrix had adopted the stand that the accused had not disclosed the factum of his being a married man and she did not know that he was already a married person and thinking that she was the legally wedded wife of the accused, they used to have sexual intercourse and if she had been aware that the accused was already married, she would not have ventured into the relationship. On the basis of these facts, the Apex Court held as follows: _“The facts as have emerged are that the couple were infatuated with each other and wanted to live together in a relationship as close to matrimony as the circumstances would permit. ...... The Court is duty bound when assessing the presence or absence of consent, to satisfy itself that both parties are ad idem on_ Crl.A.No.894/2019 24 _essential features; in the case in hand that the prosecutrix was lead to believe that her marriage to the Appellant had been duly and legally performed. It is not sufficient that she convinced herself of the existence of this factual matrix, without the appellant inducing or persuading her to arrive at that conclusion. It is not possible to convict a person who did not hold out any promise or make any misstatement of facts or law or who presented a false scenario which had the consequence of inducing the other party into the commission of an act. There may be cases where one party may, owing to his or her own hallucinations, believe in the existence of a scenario which is a mirage and in the creation of which the other party has made no contribution. ...... We are in no manner of doubt that in the conspectus that unfolds itself in the present case, the prosecutrix was aware that the appellant was already married but, possibly because a polygamous relationship was not anathema to her because of the faith which she adheres to, the prosecutrix was willing to start a home with the appellant. In these premises, it cannot be concluded beyond reasonable doubt that the appellant is culpable for the offence of_ Crl.A.No.894/2019 25 _rape; nay, reason relentlessly points to the commission of consensual sexual relationship”._ 42. In the present case, this Court is convinced that sexual intercourse between PW2 and the accused during the period they resided together in the rented house was consensual and it was not without the consent of PW2 or against her will. At any rate, the accused is entitled to get the benefit of doubt in that regard. It follows that the accused cannot be found liable for committing an offence punishable under Section 376 of the I.P.C. 43. The accused has been in jail during the investigation and the trial of the case for more than a period of nine months. Since the date of pronouncement of judgment by the trial court he has been in jail for more than three years. In this context, it is interesting to note the observations made by the Apex Court in ## **Vinod Kumar** (supra) which read as follows: _“The appellant is not an innocent man inasmuch as he had willynilly entered into a relationship with the prosecutrix, in violation of his matrimonial vows and his paternal duties and responsibilities. If he has suffered incarceration_ Crl.A.No.894/2019 26 _for an offence for which he is not culpable, he should realise that retribution in another form has duly visited him”._ 44. Consequently, the appeal is allowed. Conviction entered against the appellant/accused by the trial court for the offences punishable under Sections 366 and 376 of the I.P.C and the sentence imposed on him by the trial court for those offences are set aside. The appellant/accused is found not guilty of the above offences and he is acquitted and he is set at liberty. 45. The Registry shall forthwith send a copy of this judgment to the Superintendent of the jail in which the appellant/accused is detained, for necessary action. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr