Sunoj @ Edwin S/o Paul v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 24TH DAY OF JULY 2020 / 2ND SRAVANA, 1942** ## **CRL.A.No.460 OF 2019** **AGAINST THE JUDGMENT IN S.C.NO.62/2013 DATED 22/03/2019 ON THE FILES OF SESSIONS COURT, KOTTAYAM** ## **APPELLANT/SOLE ACCUSED:** **SUNOJ @ EDWIN S/O. PAUL, ARACKAL HOUSE, EDAKKUNNAM P.O. KOORAVELI VILLAGE, KANNUR DISTRICT, NOW RESIDING AT 20/2029, DEEPAM HOUSE, VYTTILA, ERNAKULAM.** **BY ADVS. SRI.RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, (THROUGH S.I.OF POLICE KIDANGOOR POLICE STATION, KOTTAYAM DIST)** **R1 BY SRI.RAMESH CHAND, PUBLIC PROSECUTOR R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN & CHILDREN & WELFARE OF W & C** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-072020, THE COURT ON 24-07-2020 DELIVERED THE FOLLOWING:** Criminal Appeal No.460 of 2019 2 **P.B.SURESH KUMAR, J. ------------------------------------Criminal Appeal No.460 of 2019 -------------------------------------Dated this the 24[th] day of July, 2020** ## **J U D G M E N T** The sole accused in S.C. No. 62 of 2013 on the files of the Sessions Court, Kottayam, has come up in this appeal challenging his conviction and sentence in the said case. 2. The accusation in the case is that on 26.05.2011, the accused enticed the victim minor girl out of the keeping of her lawful guardian with the intention of seducing her to illicit intercourse, and had sexual intercourse with her, and thereby committed the offences punishable under Sections 366 and 376 of the Indian Penal Code (the IPC). It is also the accusation that the accused took away the gold ornaments of the victim weighing 10.700 grams in the course of the said transaction and thereby committed the offence punishable under Section 420 of the IPC as well. 3. On the accused pleading not guilty of the charges levelled against him, prosecution examined 23 3 Criminal Appeal No.460 of 2019 witnesses as PW1 to PW23 and proved 23 documents though them as Exts.P1 to P23. The witnesses examined on the side of the prosecution have also identified the material objects in the case, namely MO1 to MO13. The accused was, thereupon, questioned under Section 313 of the Code of Criminal Procedure (the Code) as regards the incriminating evidence brought out by the prosecution. The accused denied the same and maintained that he is innocent. Since the trial court did not find the case to be one fit for acquittal under Section 232 of the Code, the accused was called upon, thereafter, to enter on his defence. The accused then examined himself as DW1 and proved three documents namely Exts.D1 to D3. Earlier, in the course of the cross-examination of the victim girl, the accused has also proved a portion of her statement under Section 161 of the Code as Ext.D1 for the purpose of contradicting the victim. 4. Among the witnesses examined on the side of the prosecution, PW1 is the father of the victim, PW2 is the mother of the victim, PW3 is the victim herself, PW4 is the younger sister of the victim, PW5 is the younger brother of the victim, PW6 is the wife of the accused, PW7 is the owner of the 4 Criminal Appeal No.460 of 2019 building occupied by the accused at Vyttila, PW8 is the staff of a money lending concern at Vyttila, PW11 is the staff of a hotel at Kottayam, PW13 is the staff of a hotel at Kidangoor, PW14 is the Registrar of Births and Deaths of Ettumanoor Grama Panchayat, PW16 is the doctor who examined the victim on 13.05.2011, PW17 is the Sub Inspector of Police who recorded the statement of the victim and PW19 is the Investigating Officer in the case. 5. Among the documents, Ext.P1 is the First Information Statement of the victim proved by PW1, Ext.P2 is the statement under Section 161 of the Code proved by the victim, Exts.P2(a) and P2(b) are portions of the statement under Section 161 of the Code proved by PW6, Ext.P3 is the rent deed in favour of the accused proved by PW7, Ext.P4(a) is the ID proof of the accused proved by PW8, Ext.P11 is the birth certificate of the victim proved by PW14 and Ext.P13 is the medical certificate proved by PW16. 6. On an appraisal of the materials on record, the court below found that the prosecution has not established the guilt of the accused under Section 420 of the IPC. The court, however, found that the prosecution has established the guilt 5 Criminal Appeal No.460 of 2019 of the accused under Sections 366 and 376 of the IPC, and convicted and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs.50,000/- for both the offences punishable under Sections 366 and 376 of the IPC with default sentence separately. The court below, however, ordered the substantive sentences to run concurrently. As noted, the accused is aggrieved by his conviction and sentence. 7. Heard the learned counsel for the appellant as also the learned Public Prosecutor. 8. The learned counsel for the appellant contended that though it was established that the victim has eloped with somebody on 26.05.2011, the materials on record are not sufficient to hold that it was the accused with whom the victim had eloped. Alternatively, it was also submitted by the learned counsel that even if the entire evidence tendered by the victim is accepted, the same will not make out a case under Section 366 of the IPC. Similarly, it was argued by the learned counsel that the evidence of the victim, even if accepted, would make out only a case of consensual sex and not rape. The learned counsel reinforced the said submission 6 Criminal Appeal No.460 of 2019 pointing out that the occurrence being one allegedly took place prior to Act 13 of 2013, insofar as the victim was admittedly above the age of 16 years, consensual sex would not make out a case of rape. Lastly, the learned counsel for the appellant contended that, at any rate, the punishment of ten years rigorous imprisonment imposed on the accused is highly excessive and disproportionate. 9. Per contra, the learned Public Prosecutor, relying on the various evidence let in by the prosecution submitted that it is a case where more evidence than what is required to prove the guilt of the accused beyond reasonable doubt has been let in by the prosecution, and the evidence would not only make out a case under Section 366 of the IPC, but also a case under Section 376 of the IPC. The learned Public Prosecutor has elaborated the said submission pointing out that it has been demonstrated by the prosecution in its evidence that consent for sexual intercourse in the case was vitiated by misconception of fact. 10. Having heard the learned counsel for the parties on either side and having perused the materials on record, it is seen that the point arising for consideration is as to Criminal Appeal No.460 of 2019 7 whether the prosecution has established the guilt of the accused under Sections 366 and 376 of the IPC. 11. Before I proceed to consider the contentions advanced by the learned counsel for the parties on either side, it is necessary to refer to the evidence let in by the prosecution in the case. PW1, the father of the victim deposed that the victim was found missing on 26.05.2011. He deposed that she left for the school in the morning on that day and did not come back. He also deposed that he received a call on that day from one Sunoj informing him that the victim is with him. PW1 has also deposed that he lodged Ext.P1 complaint to the police accordingly. PW2 is the mother of the victim. She too deposed in tune with the evidence tendered by PW1. In addition, PW2 deposed that on 03.04.2011, she went to a retreat centre at Chalakkudy along with her children and she was informed by her other children there that the accused was stalking the victim at the retreat centre. PW2 deposed that after they returned home from the retreat centre, the accused had once called to her house over phone and wanted her to give phone to the victim and they talked each other thereafter. She deposed that she warned both the accused as also the victim 8 Criminal Appeal No.460 of 2019 in keeping any relationship. PW2 deposed that while she was admitted in a hospital at Kidangoor during the first week of May, 2011, she understood that the accused then came to the hospital to meet the victim and took her for food to the nearby Elegance Hotel. She deposed that when the victim came back to the hospital, she questioned her and the victim girl then informed her about her relationship with the accused. PW2 also deposed that she accordingly, called the accused to the hospital and he then told her that he wants to marry the victim. PW2 deposed that she thereafter saw the accused at the police station. PW2 also clarified in her evidence that when the victim went along with the accused, she carried with her gold chain, gold ring as also the gold ear ring. 12. PW3, the victim deposed that on 26.05.2011, she left home pretending that she is going to school and went to Ettumanoor as instructed by the accused. She deposed that she was aged 17½ years then. She deposed that from Ettumanoor, she took a bus to Vyttila where the accused was waiting for her. She deposed that the accused took her to his rented house which is a double storeyed one, of which the owner was residing in the ground floor and the accused was 9 Criminal Appeal No.460 of 2019 residing in the first floor. PW3 deposed that there was no one at the house at the relevant time. She deposed that the accused took her to that place on a promise that he will marry her. To a question put by the Public Prosecutor as to whether the accused informed her then that he was already married, PW3 answered in the negative. She deposed that the accused had sex with her immediately on reaching his house and when she resisted, he assured that he would marry her on the same day. PW3 deposed that the accused thereafter informed her that he is already married and his wife is at Cannanore and that he is proposing to divorce his wife to marry PW3. She deposed that the accused thereafter took her behind a Church at Edappally and tied a “thali” on her neck. PW3 deposed that thereafter, they came back to the same house and stayed there till 29.5.2011. She deposed that in between, they had sex on a few occasions as well. She deposed that on 28.05.2011, the accused had pledged her gold ornaments in a shop at Vyttila for Rs.4,000/-. PW3 deposed that on the evening of 28.05.2011, the wife of the accused came to that house and made big noise and she also assaulted PW3. PW3 deposed that she came to know by the time that a police 10 Criminal Appeal No.460 of 2019 complaint has been lodged and accordingly, the accused took her to Kottayam to appear before the court and stayed at Ayida Hotel at Kottayam for the said purpose. She deposed that the accused had sex with her in that hotel as well. She deposed that on the next day, they went to Kidangoor Police Station. PW3 also deposed that she met the accused for the first time at the retreat centre at Chalakkudy and he told her then that he likes her and gave his telephone number to her. She deposed that she was communicating with him thereafter. PW3 deposed that she met him also at Cherpunkal Holy Cross Church. She also stated that when her mother was admitted in L.L.M. Hospital, Kidangoor, the accused came there and took her to Elegance Hotel for food. She also deposed that one of her relatives saw them at that hotel and informed her parents about the same and they scolded her for the same. PW3 also deposed that the accused has given her a mobile phone and she used to talk with him using the said mobile phone and when her parents came to know about this, they scolded her again and it was in the said circumstances that she went along with him as required by him. She has identified the ‘Thali’ tied by the accused, which was produced as MO1. Though the 11 Criminal Appeal No.460 of 2019 victim was cross examined thoroughly, nothing was elicited from her by the accused to discredit her in any manner. 13. PW4, the younger sister of the victim deposed that she also accompanied PW3 to the retreat centre and she met the accused there. She deposed that at the retreat centre, the accused told the victim that he likes her. PW4 also deposed that the accused gave his mobile number to PW3. PW4 deposed that when her mother was admitted at the Kidangoor Hospital, the accused came there and met PW3. PW4 deposed that her mother scolded PW3 and beat her for having met the accused. PW5, the younger brother of the victim deposed that while his mother was admitted at Kidangoor Hospital, the accused came there to meet PW3 and he took him and PW3 for having food at Elegance hotel. The evidence tendered by the aforesaid witnesses have also not been discredited by the accused. 14. PW7 has deposed that he owns a house at Vyttilla and the accused was occupying the first floor of the house from 2010 onwards, on rental basis. He also deposed that one day during 2011, the accused brought a girl to that house and informed him that the girl is the daughter of the 12 Criminal Appeal No.460 of 2019 sister of his father and that she came to Ernakulam for an interview. He deposed that the girl has resided with the accused on that day. PW7 deposed that the wife of the accused was not at that house at the relevant time and that the wife of the accused later told him that the girl was not a relative of the accused; that the girl was a minor and that the accused is involved in a case in connection with her. PW8 deposed that on 28.05.2011, the accused, who is known to him, has come to his office and pledged a gold cross, a gold ring and a gold chain in his establishment. PW8 proved the identity card produced by the accused for the aforesaid purpose. PW16 is the doctor, who examined the victim on 30.05.2011. PW16 deposed that on examination, the hymen of the victim was found torn and the tear was a recent one. PW16 also deposed that the vagina of the victim admitted one finger loose on examination. The aforesaid witnesses have also not been discredited by the accused in any manner, whatsoever. 15. It is established by the prosecution through the evidence tendered by the victim that she had previous acquaintance with the accused; that she left home on 26.05.2011 as required by the accused and as assured by the 13 Criminal Appeal No.460 of 2019 accused that he would marry her; that the accused took her to a church and underwent with her a ceremony purported to be a marriage by tying a ‘Thali’ on her neck and that he had sex with her on several occasions thereafter at his rented house at Vytilla and at Arcadia Hotel at Kottayam. The evidence tendered by PW14, the Registrar of Births and Deaths and Ext.P11 Birth Certificate proved by him establishes the fact that the victim had not completed the age of 18 years as on 26.05.2011. The evidence tendered by the victim that she had previous acquaintance with the accused and that she went along with him on 26.05.2011 has been corroborated by the evidence tendered by PW1, the father of the victim, PW2, the mother of the victim and PWs.4 and 5, the younger siblings of the victim. The evidence tendered by the victim that she stayed with the accused at his rented house at Vyttila has been corroborated by the evidence tendered by PW7. The evidence tendered by the victim that the accused has pledged her gold ornaments has been corroborated by the evidence tendered by PW8. The evidence tendered by the victim that the accused had sex with her has been corroborated by the evidence tendered by PW16, the doctor, that the hymen of the victim girl Criminal Appeal No.460 of 2019 14 was found torn and that the tear was a fresh one at the time of her examination on 13.05.2011. Though the learned counsel for the appellant pointed out a few embellishments, inconsistencies and contradictions in the evidence tendered by the witnesses examined by the prosecution, according to me, none of them are sufficient to ignore the weighty evidence let in by the prosecution. I have, therefore, no doubt that the prosecution has proved the aforesaid facts beyond reasonable doubt. 16. What remains to be considered is the legal questions raised by the learned counsel for the accused that the proved facts do not make out a case under Section 366 or under Section 376 of the IPC. Coming to the offence under Section 366 of the IPC, placing reliance on the decision of the Apex Court in **S.Varadarajan vs. State of Madras** , AIR 1965 SC 942 and the decision of this court in **State of Kerala vs. Jose** , 1989 KHC 72, it was argued by the learned counsel for the accused that the facts proved would only show that the minor had left her guardian and joined the accused and the accused has only helped her in not returning to her guardian by taking her along with him, and it cannot be inferred from 15 Criminal Appeal No.460 of 2019 the aforesaid facts that the accused has taken or enticed the victim, to constitute the offence of kidnapping and if the offence of kidnapping is not made out, the accused cannot be convicted under Section 366 of the IPC. The passage from the decision of this court in **Jose** relied on by the learned counsel reads thus: “The word 'takes' means, physical taking though it need not necessarily be by use of force or fraud. The word 'entice' involves inducement or allurement by giving rise to hope or desire in the other. That may be by immediate action or by a continuous and gradual process in achieving the purpose of successful inducement. It is enough for the prosecution to establish that though no active part was played by the accused immediately before the minor left the guardian, he laid the foundation by an earlier solicitation or persuasion. If evidence is lacking regarding immediate and earlier inducement the accused cannot be held guilty. If the minor voluntarily left the guardian and joined the accused and he only helped her in her design not to return to her guardian's house by taking her along with him he cannot be said to have taken or enticed her even though the part played by him could be regarded as helping fulfillment of her intention. But that falls short of inducement and cannot amount to taking. The two words taken together means that if the girl leaves home uninfluenced by any promise, offer or inducement the offence of kidnapping cannot be said to me made out. If atleast on one point of time there was inducement, allurement or threat, etc and it could be considered to have influenced the minor and weighed with her in leaving home and joining him, the accused cannot plead innocence. An earlier solicitation or inducement of any manner to leave her father's Criminal Appeal No.460 of 2019 16 protection by conveying or indicating an encouraging suggestion that he would give her protection and shelter will be sufficient. These are the main guidelines on the basis of which the evidence will have to be analysed.” In the evidence tendered by the victim, it was categorically stated by her that she left home as desired and required by the accused and that the accused had assured her that he would marry her. The relevant portion of the deposition reads thus: “ സനനനജജവവളവചപകനരരഅണജനപനയതജ. x x x x എനനകലലനണരകഴവചനകനളളനനമന പറഞനണജപതവ കടവനകനണനപനയതജ.” The aforesaid evidence of the victim would indicate that it was on account of the promise, offer and inducement of the accused that the victim had left her home, and the contention of the accused that the offence under Section 366 of the IPC is not made out is therefore, without substance. 17. Coming to the contention taken by the learned counsel for the accused as regards the offence under Section 376 of the IPC, true, the materials on record would show that the sexual intercourse the accused had with the victim girl was consensual. The case put forward by the learned Public 17 Criminal Appeal No.460 of 2019 Prosecutor in this connection was, however, that the consent was vitiated by misconception of fact. The question to be examined therefore, is as to whether the consent of the victim girl was vitiated by misconception of fact. In this context, it is worth referring to the recent judgments of the Apex Court in **Dr.Dhruvaram Murlidhar Sonar v. State of Maharashtra** and Ors., AIR 2019 SC 327 and **Pramod Suryabhan Pawar v. State of Maharashtra** and Anr., AIR 2019 SC 4010. In **Dhruvaram Murlidhar Sonar** , the Apex Court explained the distinction between rape and consensual sex thus: “Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant 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 later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of Criminal Appeal No.460 of 2019 18 rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.” In **Pramod Suryabhan Pawar,** the Apex Court held that in order to show that the “consent” was vitiated by “misconception of fact” arising out of a promise to marry, it must be established that the promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given and the false promise itself must be of some immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act. The relevant passage in the said judgment reads thus: “To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.” The evidence in the case on hand would show that the accused has not divulged to the victim that he was married. It was for the first time after she met him at Vytilla and after she was 19 Criminal Appeal No.460 of 2019 taken by the accused to his rented house at Vytilla that the accused told the victim that he was married. It is seen that the accused then made the victim believe that he is proposing to divorce his wife and it is by giving the said impression that he took the victim behind a church and underwent a ceremony of marriage by tying a ‘Thali’ with her. It is necessary to mention in this context that the evidence tendered by the victim is that the accused tied ‘Thali’ on her without being noticed by others. It is also to be mentioned that the accused took the victim thereafter to the rented premises and had sex with her. If as a matter of fact, the accused wanted to marry the victim, the aforesaid was not the conduct that was expected from him. It is thus evident that the accused had no intention at all to marry the victim. If the accused had no intention to marry the victim at the time when he had sex with her, I have no doubt that the consent is vitiated. If the consent is vitiated, a case of rape is made out. Placing reliance on the decision of the Apex Court in **Vinod Kumar vs. State of Kerala** , 2014 KHC 4226, the learned counsel for the accused contended that merely for the reason that the accused had a spouse living, it cannot be found that the accused had no intention to start a home with Criminal Appeal No.460 of 2019 20 the victim, for the possibility of a polygamous relationship not being anathema to the victim, cannot be ruled out. I am not impressed by this argument at all, since it has come out in evidence that the accused had not divulged about his marriage until the victim was brought down by him to his rented house at Vytilla. The contention of the accused that the offence under Section 376 of the IPC is not made out is also therefore, without substance. 18. Coming to the argument concerning the sentence, it is seen that the minimum punishment provided for the offence of rape at the time when the same was alleged against the accused was only seven years. On a totality of the facts and circumstances of the case, I am of the view that the minimum punishment would serve the ends of justice in the case for both the offences. In the result, the appeal is allowed in part, the conviction of the accused is affirmed and the sentence imposed on the accused is altered, and he is sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.50,000/- and in default of payment of fine to undergo rigorous imprisonment for three months, for both the offences Criminal Appeal No.460 of 2019 21 punishable under Section 366 as also Section 376 of the IPC. In all other respects, the impugned judgment will stand affirmed. **Sd/P.B.SURESH KUMAR JUDGE** ds/dk 17.07.2020