Sidhiq vs Deputy Superintendent Of Police, ...
2021 Latest Caselaw 22086 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE K.HARIPAL
     FRIDAY, THE 5TH 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,

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

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

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

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.

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

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'

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



                   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

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

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.

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