Siddiq S/O Hassan Rawther v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 5[TH] DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943** **CRL.A NO. 379 OF 2011** **AGAINST THE JUDGMENT DATED 14.01.2011 IN S.C. NO. 571/2007 OF THE** **SESSIONS COURT, KOLLAM** ## **APPELLANT/ACCUSED:** **SIDHIQ S/O. HASSAN RAWTHER, KONNAYIL VEEDU, ERUMELI EAST VILLAGE, KANJIRAPPALLY TALUK, KOTTAYAM DISTRICT.** **BY ADV. SRI.P.A.MOHAMMED SHAH** ## **RESPONDENTS/STATE:** - **1 DEPUTY SUPERINTENDENT OF POLICE, KARUNAGAPPALLY, KOLLAM DISTRICT.** - **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. P.NOUSHAD, SENIOR PUBLIC PROSECUTOR BY SRI. M.S. BREEZ, SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.09.2021, THE COURT ON 05.11.2021 DELIVERED THE FOLLOWING:** Crl.A. No. 379 of 2011 :2: ## **JUDGMENT** Appellant is the convict in S.C. No. 571 of 2007 of the Sessions Court, Kollam, which is the Special Court for the trial of SC/ST (Prevention of Atrocities) Act cases. He faced allegations for offence under Sections 366A and 376 of the IPC and also under Section 3(i)(xi) of the SC/ST Prevention of Atrocities Act. The allegation against the appellant is briefly as follow: Prosecutrix, who is a minor, was staying in the house of CW1 for the previous ten years. She belongs to Mannan community of Scheduled Tribe and the accused belongs to Muslim community which is not a Scheduled Caste or Scheduled Tribe community. On 24.12.2003 he, on the promise of taking her to her house and marrying her, kidnapped the girl from the residence of CW1 in Ochira, abducted her to the house of CW4 in Sulthan Bathery in Wayanad, made representation that they are husband and wife and obtained accommodation in the house and in the south eastern room of the house he committed rape on her twice on 25.12.2003 and thereby committed the above stated offences. The crime was registered on the basis of the first information statement given by CW1; after investigation charge sheet was filed before the Court of the Judicial First Class Magistrate, Crl.A. No. 379 of 2011 :3: Karunagappally where the case was taken on file as C.P.36/2005. At that time, practice of filing the final report direct to the Special Court was not in vogue and thus the matter came before the Judicial First Class Magistrate's Court as aforestated and on completion of the procedural formalities the case was committed to the Sessions Court and thus the case came before the Principal Sessions Court. 2. The appellant was defended by a counsel of his choice. After hearing counsel on both sides, when the charge was framed, read over and explained, he pleaded not guilty; he was on bail. Thereafter 14 witnesses were examined on the side of the prosecution as PWs.1 to 14. Exts.P1 to P10 were exhibited and a kaily worn by the appellant at the time of commission of the crime was identified and marked as MO1. On conclusion of evidence, when the appellant was questioned under Section 313(1)(b) Cr.P.C., he denied all the incriminating materials as false. Thereafter, since it was not a fit case for acquitting the appellant under Section 232 Cr.P.C., he was called upon to enter on his evidence in defence, but there was no evidence for him. However, two case diary contradictions of CW2/PW9, the prosecutrix, were marked as Exts.D1 and D2. After hearing counsel on both sides, the learned Special Judge found the appellant not guilty of offence under the provisions of the Crl.A. No. 379 of 2011 :4: Prevention of Atrocities Act, but found him guilty of offence under Sections 376 and 363 of the IPC and was sentenced to undergo rigorous imprisonment for seven years for the offence under Section 376 IPC and two years for the offence under Section 363 IPC. The sentences are directed to run concurrently; he was also found entitled to get set off for the period of imprisonment already undergone. Against the said conviction and sentences the convict has preferred this appeal under Section 374 (2) of the Cr.P.C. 3. I heard the learned counsel for the appellant and also the learned Public Prosecutor. 4. The learned counsel for the appellant strongly criticized the finding of guilt reached against the appellant. According to the learned counsel, there is absolutely no reliable evidence on the age of the prosecutrix, PW9. She did not have documents proving her date of birth; since she is illiterate and has no school records to prove the same, the prosecution has relied on the evidence of PW5 the Police Surgeon, who conducted radiological examination and on the basis of ossification centres and epiphyseal features of bones to say that she was below 18 years on the date of the occurrence. Even though the doctor had opined that she is between the age of 16 and 18, in cross-examination had said that her age can vary. But the Crl.A. No. 379 of 2011 :5: learned Sessions Judge has ignored this vital piece of material. According to the learned counsel, when there is conflict between ocular evidence and medical evidence, ocular evidence alone can prevail and that ocular evidence is in favour of the defence. But that has been conveniently eschewed by the trial court which was incorrect. The learned counsel submitted that if such a person aged more than 18 years had followed the appellant to Sulthan Bathery on her own volition, that conduct will not make out an offence. 5. Regarding the other aspect of the finding of the trial court, that PW9 was raped with the promise of marriage and that she would be taken to her home, has no basis at all. No one has heard the appellant making any such promise of marrying her. Inviting my pointed attention to paragraph 28 of the impugned judgment the learned counsel submitted that the trial court was grossly confused and that was how it was said at first that her consent was obtained by playing deception; at the same time, the court held that evidence shows that force was also used on her to dishonour her modesty. According to the learned counsel, these two propositions cannot go together and therefore the court has gone wrong in making proper appreciation of the facts and also material documents. Referring to Section 90 of the IPC the counsel pointed out that promise to marriage, vitiated consent and forcible sex cannot go Crl.A. No. 379 of 2011 :6: together. Here it has come out that both of them had walked into a lodge, stayed there and no resistance was offered by her and therefore there is no evidence of use of force. According to him, therefore the conclusions arrived at by the trial court are vitiated and are liable to be reversed. According to him, the appellant is entitled to get benefit of doubt. 6. On the other hand, the learned Public Prosecutor has strongly opposed the arguments of the learned counsel. According to him, here the consent has no relevance, that there is no evidence of consent. Whatever may be the age, it is rape since it was done forcibly; it is not a case of vitiated consent but of forcible rape and therefore, conviction is liable to be upheld. According to the learned Public Prosecutor, the prosecutrix is a scheduled tribe lady; she does not know anything at all; she is illiterate, has not gone to school. The false promise made is of immediate relevance. Evidence of PW9 has to be considered along with that of PWs 1 and 4. According to him, offences under Sections 361 and 376 are proved beyond doubt and therefore the appellant is liable to be convicted. 7. Before going into the rival contentions it is appropriate to rush through the evidence of the prosecution in nutshell. PW1 Binu was an employee in the house of PW3 where the appellant was also working for Crl.A. No. 379 of 2011 :7: sometime in connection with the construction of the house. The prosecutrix girl was employed there. The appellant had short acquaintance with the girl. According to PW1, on the early morning of 24.12.2003, the lady of the house, that is PW3, had gone to Thiruvananthapuram for attending a marriage. It was the appellant who had taken her to Ochira enabling her to board the bus. Thereafter, on 26.12.2003 the appellant had called PW1 to his land phone and requested him to reach Sulthan Bathery where the appellant had gone, stating that money that he had carried had exhausted and thus asked him to take some money. It seems that he did not respond. The appellant is a native of Erumeli. Along with the appellant and himself there were 3 to 5 Tamilians also employed in that house. They had worked there for about two months. He recollected the date since he was called by the appellant on the following day of the Christmas. 8. PW2 is Dr. Kavitha of Govt. Victoria Hospital, Kollam. According to her, on 28.12.2003 she had examined the prosecutrix and issued the Ext.P1 certificate. She was examined for the purpose of ascertaining whether she was subjected to any sexual assault. The doctor could not notice any external injuries on her person. Her hymen was torn, vagina admitted two fingers. She was taken to hospital with the alleged history of having sexually contacted by Crl.A. No. 379 of 2011 :8: Siddiq on 25.12.2003. The girl was examined after obtaining permission from the lady of the house and that is evident from Ext.P1(a). According to the Medical Officer, the victim was taken to her along with CW 1 and two women police constables; she did not notice any bleeding. Merely for the reason that the vagina admitted two fingers it cannot be said that there were prior sexual intercourse. The allegation mentioned to her was that she had sexual intercourse on 25.12.2003. Spermatozoa will usually be present in the vagina but after a period of 36 to 48 hours that will not survive. 9. PW3 is Fathima Ibrahim who is the lady of the house, the then guardian of the prosecutrix. According to her, the girl was living with her from her 15 years age. On her return from Thiruvananthapuram, CW2, that is the girl was not found in the house so that she related the matter to Ochira police and that first information statement is Ext.P2. Later when CW2 was taken to the police station, she also had gone there. At first she said that she did not accompany the girl while she was examined by the doctor. But when Ext.P1(a) was shown, she readily acknowledged her signature on the document. According to her, she does not know the accused, the incident had happened while her house construction was in progress. She understood that CW2 had gone along with one of the workers in her house. When CW2 was Crl.A. No. 379 of 2011 :9: taken to police station that worker was also taken there but she does not know whether it was the accused/appellant who was taken along with CW2. She pretended that the appellant was seen by her for the first time before court. 10. PW4 Thomas is a native of Sulthan Batheri. According to him, he knew the appellant who had met him earlier in connection with his chicken business. On 25.12.2003 the appellant had reached his house along with a girl and requested for a room for accommodation. He was told that the girl is his wife. He gave a room and after three days police came there and took the appellant and the girl to Batheri police station. He was also called there. He identified the appellant before court. He did not know the girl who accompanied the appellant. 11. PW5 is Dr. Prathapan who was the District Police Surgeon and also the RMO. On 30.12.2003 he had examined the prosecutrix for assessing her age. According to him, she was above 16 years but below 18 years old and thus issued the Ext.P3 certificate. In cross examination he said that he assessed the age after conducting radiological examination noting the ossification centres and epiphyseal features of bones. Ossification can vary on many reasons; age assessed can vary according to the nature of the individual. When it was suggested by the counsel that the age of CW2 was above 18 Crl.A. No. 379 of 2011 :10: years, then the doctor answered that it can vary. 'The reasons for variation are genetic factors and nutrition. Age is assessed taking into account the Kerala climatic conditions. In the case of a mal nourished person, epiphyseal features can prolong; centre of ossification appearing in different bones at different times and stages. That can be due to genetic and nutritional factors.' He also stated that age was noted after taking the X-ray and noting the appearance and features of the wrist joint, elbow joint, shoulder joint and pelvis besides conducting dental and physical examinations. 12. PW6 is Dr.Suresh Babu who examined the appellant and issued Ext.P4 potency certificate. According to him, after examination of the appellant he could not notice anything to suggest that he is incapable of performing sexual acts. His testimony has not been challenged in cross examination. PW7 is the Tahsildar of Thodupuzha who issued the Ext.P5 caste certificate in respect of the prosecutrix. According to him, she belongs to Hindu Mannan community. PW8 is the Village Officer, Erumeli, who issued the Ext.P6 caste certificate of the appellant which suggests that he belongs to Muslim community. 13. PW9 is the prosecutrix who was shown 23 years old at the time of examination in October 2010. She identified the appellant; she was working in Crl.A. No. 379 of 2011 :11: the house of PW3; there were other children also belonging to her community in the house; her father is no more; she was taken to that house as her mother was not well and they had no other means of eking out their livelihood. That day, on the eve of Christmas, the appellant had promised her to take her to her house and took her along with him. She knew the appellant as a person who had reached the house of PW3 for work. She does not recollect the place where she was taken. They moved in bus; she was taken to a rented house where they lived as husband and wife. She was sexually assaulted there. After disrobing her she was ravished. She has never gone to school; at that night she was subjected to sexual assault by him thrice. She also identified the kaily worn by the appellant at the time of the sexual assault which is marked as MO1. She had shown the scene room to the police. According to her, she was subjected to sexual acts on the promise of marriage. Then she was taken to Ochira police station. Her mother and PW3 came there. She was examined at Kollam Victoria Hospital. 14. In cross examination she said that her father had died in her childhood; she does not know in which year the father had died. She did not know in which year the appellant had taken her. The police had recorded her statement. She denied the statement that her father had abandoned her and that Crl.A. No. 379 of 2011 :12: the appellant had taken her in train and bus. Thus Exts.D1 and D2 respectively, case diary contradictions were marked. She could not give particulars as to the date and time of the occurrence. She cannot read destination boards of buses. After reaching the house of PW3 she had never gone to her house; she had never gone out without being accompanied by relatives. She does not know whose house was taken on rent for committing the crime; they had stayed there only for one day. At the time of the incident there were people in the adjacent rooms. Promise to marry her by the appellant was not in the presence of others. 15. PW10 is the mother of PW9. According to her, she belongs to scheduled tribe community. Her husband is no more and the girl was taken to the house of PW3 since she was also not well. At the time of the incident PW9 was under the custody and care of PW3. Her husband had died 27 years before. The death of the husband was not reported to the panchayat. At first she said that the birth of PW9 was registered in the Kuamily panchayat and then said that it was registered in Painavu village. She also does not have education. 16. PWs 11 to 14 are police officials who registered the crime after recording the statement of PW3, conducted investigation and laid the charge Crl.A. No. 379 of 2011 :13: sheet. 17. As indicated earlier, there is conviction on two counts; firstly under Section 363 IPC and then under Section 376 IPC. The learned counsel was very much sceptical about the age of the girl. As rightly pointed out by the learned counsel, the statement of PW5 Police Surgeon who conducted radiological examination does not give a specific finding as to the age of the girl. It is very evident that the girl is not educated. She does not have even elementary education. PW10 the mother also is a rustic villager who did not have elementary education. She has no idea as to whether the birth of the girl was registered in the local body. At first she said that it was registered in Kumily panchayat and then said that it was intimated to Painavu village office. The latter submission must be incorrect because birth should be registered in the local body. The prosecution could not collect any document from the local body on the proof of birth. She was never admitted in a school. She has not been given formal education or any type of education. She is totally an illiterate girl and in the absence of materials regarding the proof of age, radiological examination done after conducting physical examination, X-ray and also ossification tests alone can be relied on to find her approximate age. The doctor has stated that genetic features as well as nutritional aspects of Crl.A. No. 379 of 2011 :14: a person would guide the finding regarding approximate age. It is evident that during the early stage of the girl she was under the care and protection of her mother who is also uneducated and illiterate, belonging to very poor strata of the society. In that case, in all probability the mother might not have been able to give appropriate nutritional support to the girl. 18. The probable age of the girl was fixed by PW5 on the basis of X-ray test and also after verifying her appearance and features of wrist joint, elbow joint, shoulder joint, pelvis and also after conducting dental and physical examinations. In cross examination the doctor was suggested whether he can deny that the girl was above 18 years, the doctor readily answered that it can vary. In other words, even the doctor could not give a specific answer that the girl is below 18 years. When he said that it can vary, it means her age can be above 18 years also, on the date of commission of the alleged occurrence. 19. At first, I shall consider whether there is legal evidence to support the conviction made under Section 363 of the IPC. In order to prove kidnapping from the legal guardianship under Section 361 of the IPC it must be proved that the victim kidnapped was a minor below 16 if male or below 18 if female, that the victim kidnapped was in the keeping of a lawful Crl.A. No. 379 of 2011 :15: guardianship, that the accused had enticed away the victim from such keeping or lawful guardianship and that the accused did so without the consent of the lawful guardian. Here, even though the last aspects are in favour of the prosecution, the most material consideration is whether PW9, at the time of the alleged commission of crime on 24.12.2003 and 25.12.2003 was a minor girl below 18 years old. As indicated earlier, there is no cogent evidence to support this finding. The girl had no medical records or education records or birth certificate to prove her age on the particular day. So, radiological examination conducted by PW5 was the only material piece of evidence available in favour of the prosecution. Even though at first the doctor had asserted that she was aged above 16 but below 18, in answer to a question during the cross examination, he has readily agreed to the suggestion that the age can vary. Even though the learned Sessions Judge chose to ignore this answer given by PW5, in my finding, this solitary statement of PW5 is sufficient to doubt the prosecution version that she was a minor below 18 years old at the time of the commission of the crime. In fact this aspect takes the defence case a long way and creates sufficient in-roads in the case of the prosecution. That means, probability that she was a grown up person above 18 years old at the time of the commission of crime cannot be ruled out. Crl.A. No. 379 of 2011 :16: 20. There are numerous circumstances to infer that PW9 had been staying with PW3 for very long. The charge sheet indicates that she was staying with PW3 for the previous 10 years. In Ext.P2 she said that the girl was reared by her from childhood. But when examined as PW3, she said that she was employed in the house from 15 years onwards. There are reasons to believe that PW3 was not speaking truth before Court. She has suppressed material facts. Evidence of PWs 9 and 10 also do not throw light into this aspect. In this backdrop, in my opinion, it is a case of marginal error, the benefit of which should necessarily go in favour of the accused. In that case, I find myself difficult to uphold the finding of the learned Sessions Judge that the girl was below 18 years old and therefore she was kidnapped by the accused from lawful guardianship. Even though it was evident that she was enticed away by the appellant on the promise of marriage and was taken to Sulthan Batheri and subjected to sexual intercourse, the solitary fact that the prosecution could not prove that she was below 18, the offence under Section 363 of IPC cannot lie. Therefore that part of the conviction cannot sustain. 21. Turning to the question of rape having been committed on PW9, the learned counsel for the petitioner vehemently submitted that even if it is proved that she was subjected to sex by the appellant, that was only Crl.A. No. 379 of 2011 :17: consensual, that there was no resistance at all from her part, that there were inhabitants in the adjacent rooms, if she had any objection in the advances made by the appellant, that would been expressed and the people in the adjacent rooms would have been alerted and therefore, it is very patent that she was a consenting party. The learned counsel also pointed out that she had deposed that there were repeated acts of sexual intercourse between them in the same night and all are evidence of consensual sex engaged by the appellant and PW9. But the learned Public Prosecutor has submitted that the social and economic background of the prosecutrix have to be considered in the context. 22. In the Kerala context, it is an exception that a person like PW9 has not undergone even elementary education. But it is a fact that she belongs to a rustic tribal community in Kattappana, a high range region, notwithstanding the question her father had died or had left them abandoning the wife and the child. In either case she did not have the fortune of getting the care and affection of the father. PW10, her mother is also totally illiterate and ignorant. The girl was born to such a couple. On the one hand, either the father is no more or had abandoned the family and she was brought up by a single parent who is also totally illiterate and ignorant. From records, it appears that she was Crl.A. No. 379 of 2011 :18: taken to the residence of PW3 at the very childhood itself. In fact, she was doing child labour in the house of PW3 as house maid. But this is not the occasion for this Court to go into such an aspect. Anyhow, she grew up in that house and was continuing under the guardianship of PW3. On 24.12.2003, PW3 had gone to Thiruvananthapuram for attending a marriage. It was the appellant who had taken her to Ochira bus stand. Immediately after returning from Ochira, he enticed PW9 and promised her to take her to home. After reaching the residence of PW3, she had never gone to her place in Kattappana. Thus, taking advantage of the absence of the house lady, he enticed her and promised to take her to home, she was also interested in going to her home. It was under such a pretext that the appellant had taken her out of the house. 23. As noticed earlier, she has never seen the colour of a school. Even documents are not available for proving her date of birth. She is incapable even to read the destination board of a bus. She does not know her own caste or community. In other words, she was just a puppet who was taken to the house of PW3 at the very childhood itself and was made to do odd jobs and was working as a house maid. Such a silly girl was enticed and taken out of the house on the pretext of taking her to her house. Even at the time when they had undertaken a long journey to Sulthan Bathery, she did not realise that she Crl.A. No. 379 of 2011 :19: was going elsewhere. Thus they reached the house of PW4 and sought accommodation there and inside the room she was ravished by the appellant. 24. Now the remaining question is whether that was done against her will and without her consent. Of course, it appears that the learned Sessions Judge was bit confused. As rightly pointed out by the learned counsel for the appellant, the two concepts, that she was raped with the promise of marriage and also by using force, both are mutually opposite propositions and cannot go together. The learned Sessions Judge has not considered this aspect in correct perspective. 25. PW 9 is a spinster. The medical evidence does not prove that any force was used by the appellant. There was no injury on her external body; there was no injury in the private parts also. Therefore, the possibility of using force can be ruled out. Then the next question is whether she was subjected to sex with her consent, on the promise of marrying her. The learned counsel wanted to say that here also there is no evidence at all and therefore, the appellant is entitled to get the benefit of doubt. 26. On ultimate analysis, it appears that consent of the girl was obtained by promise of marriage. PW9 has stated that he had promised her to marry and on that ground only she yielded to his desires. As noticed, the said Crl.A. No. 379 of 2011 :20: place of occurrence, the room in the house of PW4 is not an isolated place. There were inhabitants in the adjacent rooms. If PW9 wanted to make a hue and cry when he had tried to ravish her, necessarily that would have attracted attention of others and she would have been able to resist the same. But it is very clear that she did not offer any resistance. The repeated acts of sexual intercourse indulged by them also suggest that she was not resisting the acts of the appellant. Then the question is the alleged consent given by her was under misconception and whether it was tainted. Where the consent of the person may afford a defence to a criminal charge, such consent must be real consent not vitiated by immaturity, fear or fraud. It is the settled proposition of law that when consent is obtained under a misconception of fact, it is not at all a consent ( **State of U.P. v. Noushad [AIR 2014 SC 384]** ). Similarly, as held in **Karthi v. State represented by Inspector of police, Tamil Nadu [AIR 2013 SC 2645]** ) obtaining consent by exercising deceit cannot be legitimate defence to exculpate an accused 27. It is here that the social and economic background of PW9 again comes to the fore. She is virtually a destitute. It is true that she has her mother. But from the testimony of PW10 her mother, it is evident that considering the pathetic situation in the family that PW3 had taken the girl in her childhood to Crl.A. No. 379 of 2011 :21: the house at Ochira and was using her services as house maid. It is also evident that the mother had no concern about the girl at all, her birth was not registered anywhere, she did not know whether it was registered at all. The father is no where in the picture. Suffice it to say that he had no role in rearing the girl child. She was born in a tribal hamlet and there was no one to impart her at least elementary education. From the childhood onwards she had been given away to do the job of a house maid in a far away place in Ochira. She was living on the mercy of PW3. After reading the testimony of PW3 it must be pointed out that at the crucial time, she also disowned her and tilted her loyalty to the appellant, who is apparently a stranger to her. For reasons which are obvious, she did not support the prosecution case. Even though she said that PW9 had gone with a worker who had come for the house construction, and that after the incident both the girl and the said worker together were taken to the Oachira police station where PW3 also had reached, she refused to recognize the culprit. That shows the demeanour of PW3. In other words, at the appropriate time, she disowned PW9. I highlighted this only to say the sad plight of this girl who is a destitute, if not an orphan. It was easy for a sex crazy man like the appellant to entice her away for satisfying his lascivious ends. Crl.A. No. 379 of 2011 :22: 28. After having said that she had not resisted the advances made by the appellant against her, now the question is whether consent was given under a misconception of fact. It is the settled proposition of law that a false promise is not a fact within the meaning of the Code. The courts have pronounced on numerous occasions that there is no straight 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, should consider the evidence before it and the surrounding circumstances before reaching a 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. 29. The Hon’ble Supreme Court in **Dileep Singh v. State of Bihar [AIR 2005 SC 203]** went to the question as to what is the meaning and content of expression 'without consent' falling in second part of Section 375 of the IPC. The Court considered whether consent given by a woman believing the man’s promise to marry her is a consent which excludes the offence of rape. The concept and dimensions of 'consent' in the context of Section 375 was viewed in different angles. The Court clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim Crl.A. No. 379 of 2011 :23: without having the intention or inclination to marry her, will vitiate consent. A Division Bench of this Court in **Babu v. State of Kerala [2013(2) KHC 526** **(DB)]** , has summarised the principles guiding the subject thus: “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 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’ Crl.A. No. 379 of 2011 :24: ## 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; 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 Section 90 IPC; 1) The factors set out in the first part of Section 90 are from the point of view of the victim; m) The second part of Section 90 enacts the corresponding provision from the point of view of the accused; and n) The requirements of both the parts should be Crl.A. No. 379 of 2011 :25: cumulatively satisfied.” 30. In other words, if such a promise was made without intention of honouring the same, it is a hoax and therefore, is not consent at all. The facts of the case have to be considered in the social and economic background of the prosecutrix. The appellant did not have much acquaintance with the girl except the fact that he had gone there to do construction work in the house of PW3. Incidentally they met and taking advantage of the absence of PW3, who had left for attending a marriage, he was enticing the girl on the promise of taking her to her house; it came out that she had never gone back to her home after once reached the house of PW3. It appears that her quest for going out was used by the appellant. Such an illiterate and silly girl had no idea that she was going elsewhere and not to her house. She was straight away taken to Sulthan Bathery in Wayanad district, hired a room on the pretext that they are husband and wife and inside the four walls of the room she was raped by the appellant offering to marry her. May be PW9 was not aware that he was a married man. Even otherwise, he being a Muslim, there was no inhibition or embargo to him for contracting a second marriage. Whatever it may be she did not offer any resistance and submitted herself to satisfy his lust. 31. The learned counsel for the appellant wanted to say that there is Crl.A. No. 379 of 2011 :26: no independent evidence that he had offered to marry her. But in such a case, it is not reasonable to go after corroboration through independent sources. It is very clear that she was subjected to sexual intercourse. It is also evident that he had no intention to marry her, from the very inception. But for the promise given by him, she would not have yielded to his advances. For this, the solitary evidence of PW9 is sufficient to say that she was subjected to sexual intercourse on the promise of marriage. Given the mental makeup, intelligentsia it cannot be thought that she was giving consent realising the consequences of the act. Moreover, the subsequent conduct of the appellant also is very relevant. Even after they were caught, he has never offered that he would marry the girl. Therefore, it is evident that she was subjected to sexual intercourse on the promise of marriage and her consent was obtained on his offering to marry her. Such a consent obtained under a misconception of fact is not consent at all and therefore, is not sufficient to exculpate the appellant. 32. After going through various authorities on the subject, I am of the view that there is reliable evidence coming out from the testimony of PW9 with the associate evidence tendered by PW1, PW4 etc., that he had enticed and taken the girl to Sulthan Bathery and subjected her to sexual intercourse on the promise of marriage. He had no intention to marry her and everything Crl.A. No. 379 of 2011 :27: was done solely for the purpose of satisfying his lust. Consent was obtained on the false pretext of marrying her. From the very beginning, he had no intention to marry her. If he had any such intention that would have been conveyed at least to PW1 or PW3; that was not done and his subsequent conduct also sufficiently indicate that he had no intention to marry her. 33. It is also relevant to say that they were not in an affair; they had met only for a few months prior to the incident. The appellant was making use of the absence of PW3 from the house and was taking her from the house unauthorisedly, on the pretext of taking her to her house at Kattappana, but took her to a different place. All these stand testimony to his malicious intention and therefore, I am of the view that consent obtained was vitiated and therefore, offence under Section 376 of the IPC is proved against the appellant, beyond doubt. Resultantly, conviction entered against the appellant under Section 376 of the IPC is upheld. 34. He has been granted only a minimum substantive sentence of seven years. As per the statute, punishment should be sentence of minimum seven years and fine; but the trial court has failed to impose any fine at all, which is illegal. Substantive sentence imposed is only minimum and in the absence of an appeal by the State, that does not warrant interference. Crl.A. No. 379 of 2011 :28: 35. The learned Judge should not have omitted to impose a fine also, on the appellant. For the purpose, either a remand can be ordered or this Court should take a _suo motu_ revision. Having regard to the circumstances, it seems that it is only appropriate that the fine amount, compensation to be paid to PW9 etc. be decided by the Sessions Judge himself, so that the case can be remanded. In the result, the appeal is allowed in part. Conviction and sentence imposed on the appellant under Section 363 of the IPC is set aside. But conviction and sentence of seven years rigorous imprisonment imposed under Section 376 of the IPC is confirmed. The case is remitted to the Sessions Court, Kollam for the limited purpose of hearing the appellant for determining the fine amount, for which he will appear before the trial court on 25.11.2021. Entire records shall be returned to the trial court forthwith. Sd/- **K.HARIPAL JUDGE** **okb/DCS/20.10.2021**