Kerala High Court
Anoop.V.M vs The State Of Kerala on 10 April, 2025
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
2025:KER:31042
THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR.JUSTICE JOBIN SEBASTIAN
THURSDAY, THE 10TH DAY OF APRIL 2025 / 20TH CHAITHRA,
1947
CRL.A NO. 1491 OF 2019
CRIME NO.340/2018 OF KAMBALAKKAD POLICE STATION,
WAYANAD
AGAINST THE ORDER/JUDGMENT DATED IN SC NO.37 OF
2019 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST),
MANANTHAVADI
APPELLANT/ACCUSED:
ANOOP.V.M
AGED 35 YEARS
S/O. SUBRAMANINAN NAMBEESAN, VIJAYAMANDIRAM HOUSE,
ANJUKUNNU .O. MANANTHAVADY, WAYNAD DISTRICT
BY ADV K.RAKESH
RESPONDENT/STATE & VICTIM:
1 THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI 682 031.
2 XX
VICTIM
BY ADVS.
GOVERNMENT PLEADER
SMT.AMBIKA DEVI S,
SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN AND
WELFARE OF W AND C
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THIS CRIMINAL APPEAL HAVING BEEN COME UP FOR
HEARING 26.03.2025, THE COURT ON 10.04.2025 DELIVERED
THE FOLLOWING:
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JUDGMENT
Jobin Sebastian, J.
The sole accused in S.C. No.37/2019 on the file of Special
Court for the trial of offences under the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, Mananthavady has
preferred this appeal challenging the judgment of conviction and
order of sentence passed against him for offences punishable under
Sections 420 and 511 of 376 of the Indian Penal Code and Section
3(2)(va), 3(1)(w)(i), 3(2)(v) of SC/ ST (POA) Act, 1989.
2. The prosecution allegation can be epitomized as follows;
The accused who is not a member of a scheduled caste
or scheduled tribe agreed to marry CW1 who belongs to the
Cheruman community, a scheduled caste, and their marriage
engagement ceremony was conducted on 28.01.2018. It was
through a matrimony site they came into contact and the accused
was aware that CW1 belongs to a scheduled caste. After the
marriage engagement ceremony, when CW1 wanted to go abroad for
her job, on 29.01.2018 the accused took her to Nedumbassery
Airport in his taxi car, and en route, the accused took CW1 to a
municipal guest house at Guruvayoor and attempted to commit rape
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on her, inside room No.105 of the said guest house. Thereafter, the
accused took CW1 to a hotel named 'Kottakkal Tower' situated at
Nayathodu in Angamali village, and also to another hotel named Sree
Guruvayoorappan Residency situated at Kakkanad Municipality and
attempted to commit rape inside the rooms of the said hotels. The
accused after molesting CW1 and attempting to commit rape on her,
withdrew from his promise to marry CW1 and hence betrayed her.
Hence, the accused is alleged to have committed the offences
mentioned above.
3. On completion of the investigation, the final report was
submitted before the Special Court for the trial of offences under the
SC/ST (POA) Act, Mananthavady. The learned Special Judge took
cognizance of the offences and the case was taken on file as
S.C.No.37/2019 and process was issued to the accused. On
appearance of the accused, procedure under section 207 of the Code
of Criminal Procedure was complied with. After hearing both sides
under Section 227 of the Cr.P.C., and perusal of records, the learned
Special Judge, framed a written charge against the accused for the
offences punishable under Sections 420, 376(2)(n), and 511 of 376
of the Indian Penal Code and Section 3(2)(va), 3(1)(w)(i), 3(2)(v) of
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Scheduled Castes/ Scheduled Tribe (Prevention of Actrocities) Act.
When the charge was read over and explained to the accused, he
pleaded not guilty and claimed to be tried.
4. The prosecution in its bid to prove the charge levelled
against the accused has altogether examined 34 witnesses as PW1 to
PW34. Exhibits P1 to P36 are the documents exhibited and marked.
After completion of prosecution evidence, when the accused was
questioned under Section 313 of the Cr.P.C., he denied all the
incriminating materials brought out against him in evidence. Since it
was not a fit case to acquit the accused under Section 232 of the
Cr.P.C., the accused was directed to enter on his defence and adduce
any evidence, he may have in support thereof. But no evidence,
whatsoever, was adduced from the side of the accused.
5. After trial, the accused was found guilty of the offences
punishable under Sections 420 and 511 of 376 of the Indian Penal
Code and Section 3(2)(va), 3(1)(w)(i), 3(2)(v) of SC/ST (POA) Act
and convicted. The accused was sentenced to undergo rigorous
imprisonment for a period of seven years and to pay a fine of
Rs.25,000/- for offence punishable under Section 511 of 376 I.P.C.
In default of payment of fine, the accused was ordered to undergo
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simple imprisonment for a period of three months. The accused was
sentenced to undergo simple imprisonment for a period of three
years and to pay a fine of Rs. 10,000/- for offence punishable under
Section 420 of I.P.C. with a default clause to undergo simple
imprisonment for a period of one month for offence punishable under
Section 420 of I.P.C. The accused was sentenced to undergo
rigorous imprisonment for a period of one year for offence punishable
under Section 3(2)(va) of SC/ST (POA) Act. He was further
sentenced to undergo simple imprisonment for a period of six months
for offence punishable under Section 3(1)(w)(i) of SC/ST (POA) Act.
For the offence punishable under Section 3(2)(v) of SC/ST Act, the
accused was sentenced to undergo imprisonment for life and to pay a
fine of Rs. 25,000/-. In default of payment of fine, the accused was
ordered to undergo simple imprisonment for a period of six months.
The substantive sentences of imprisonment were ordered to be run
concurrently.
6. Before delving into the evidence adduced in this case, it
is to be noted that it is a case in which a 29-year-old lady was
allegedly molested and attempted to be raped by a 34-year-old
unmarried man. The fact that the accused as well as the survivor of
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this offence came into contact through a matrimony site and their
marriage engagement ceremony was conducted on 28.01.2018 is not
disputed. Now the allegation is that after the marriage engagement
ceremony, when the victim lady wanted to go abroad, it was the
accused who dropped her at Nedumbassery airport. But on the way
to the airport, the accused molested her by patting her body and
fondling her breast, and further, he attempted to commit rape after
taking her to a guest house and two hotels, subsequently betraying
her by reneging on his promise to marry her.
7. The law was set in motion in this case on the strength of
the statement given by the survivor to a Women Civil Police Officer
attached to Kambalakkad police station (PW21). The Assistant Sub
Inspector of Police, Kambalakkad Police Station has registered the
present case after verifying the said FIS, and Ext.P21 is the FIR
registered in this case. When the survivor of this offence was
examined as PW1, she had portrayed the entire matters that
transpired in this case. According to PW1, during the period of
occurrence in this case, she was working as an IT Administrator at
Dubai. Two years prior to the incident in this case, she gave an
advertisement in 'Kerala Matrimony' inviting marriage proposals.
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Upon seeing the advertisement, the accused contacted her in the
month of November 2017. Thereafter the accused came to her
house to see her. Subsequently, in the month of January 2018, the
accused as well as his mother and some others again came to her
house for the bride viewing ceremony and expressed their interest in
conducting the marriage. Thereafter, her family members visited the
house of the accused and decided to fix the marriage. On
28.01.2018, their marriage engagement ceremony was conducted.
According to PW1, she belongs to Cheruman Community, a scheduled
caste and the accused belongs to Nambeesan Community, a
non-SC/ST community. The accused told that he is not bothered
about caste or religion. For her job purpose she wanted to go to
Dubai on 01.02.2018. On 29.01.2018, at 9.00 p.m., the accused
came to her house in a car to drop her at Nedumbassery Airport.
Thereafter on 30.01.2018 at 3 a.m. she reached Guruvayoor in the
car driven by the accused. Thereafter, the accused suggested to take
a room and said that he was feeling sleepy and had a headache.
Thereafter, he took a room in the municipal guest house, Guruvayoor.
Thereafter, inside the said room, they talked each other. The accused
then told that anyway we are going to marry and touched on her
breast. Thereafter the accused attempted to have sexual intercourse
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with her. Thereafter they vacated the said room by noon and went
to Kakkanad. Thereafter, the accused took a room in a hotel named
'Guruvayoorappan Residency' at Kakkanad and they resided together
in the said room on that night. There the accused touched on her
body and attempted to rape her and she felt pain. On 31.01.2018,
they vacated the said room and on the way to the airport they
entered a hotel to freshen up and to have tea. In order to freshen up
they took a room in the said hotel also. In that room also the
accused attempted to have sexual intercourse with her. But she
again felt pain. On the next day, she went to Dubai. Thereafter, she
used to contact the accused over the phone. While things being so,
after three months, the accused said that he is not interested in the
marriage. Then she informed the same to her mother. Thereafter,
her father discussed the matter with the accused's family members.
Then there occured a quarrel between her father and the accused.
Then, the accused said that he is not interested in the marriage as
she is a lady who had undergone an abortion once. Thereafter
onwards, the accused stopped contacting her over the phone.
Thereupon, she filed a complaint before Kambalakkad Police and Ext.
P1 is the said complaint. Prior to giving such a complaint, she also
sent a complaint through email to the superintendent of Police,
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Wayanad. Ext.P2 is the attached complaint with the email. When
PW1 was confronted with a photo, after verifying the same, she
deposed that the same was a photograph, which was taken when the
ring was exchanged in connection with the engagement ceremony.
The said photograph is marked as Ext.P3.
8. The doctor who conducted potency examination of the
accused was examined as PW2. According to PW2, on 18.10.2018 at
3.30 p.m., he conducted potency examination of the accused and on
examination, the accused was found capable of performing sexual
act. The certificate issued by him is marked as Ext.P4.
9. The doctor who conducted the medico-legal examination of
the victim was examined as PW3. According to PW3, on 17.10.2018
at 12.50 p.m., she examined the victim of this offence and issued a
medico-legal certificate. Ext.P5 is the said certificate issued by her.
Referring to Ext.P5 certificate, she deposed that on examination, the
hymen of the victim was found intact and the vagina appeared to be
normal. According to PW3, no external injuries were noted in the
examination.
10. The Village Officer, Anjukunnu village, who issued a
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certificate showing the caste of the accused was examined as PW4.
The caste certificate issued by him is marked as Ext.P6. According to
PW4, the accused belongs to the Hindu Nambeesan community.
11. The mother of the victim was examined as PW24.
According to PW24, her daughter is a graduate in M.Sc. Computer
Science. On 07.01.2018, the accused came to her house to see her
daughter. But there was no one in her house on that day. Hence,
the accused again came to her house along with his mother and aunt
for bride viewing ceremony. Thereafter, on 18.01.2018, PW24 along
with 24 other relatives went to the house of the accused and decided
to conduct the marriage engagement function. Accordingly, on
28.01.2018 a marriage engagement function was conducted in the
house of PW24 and rings were also exchanged between the proposed
bride and groom. 40 guests from the side of the accused attended
the ceremony. Photographs were also taken. Ext.P3 is one of the
photographs taken on that occasion. Her daughter wanted to go to
Dubai on 01.02.2018 from Nedumbassery airport for the job. On
29.01.2018 at 9.30 p.m., the accused came to her house and took
PW24's daughter with him to drop her at Nedumbassery airport.
Thereafter, her daughter went to Dubai from Nedumbassery airport.
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While things being so, on 24.05.2018 the accused contacted her over
the phone and informed her that he is not interested to marry her
daughter. The accused also abused her in filthy language over the
phone. The accused further stated that somebody told him that her
daughter had previously undergone an abortion. Thereafter, her
daughter sent a complaint through email to the District Police Chief.
Then Police came and told that action would be taken after the
arrival of her daughter from Dubai.
12. The Tahasildar, Vythiri Taluk, who issued the caste
certificate showing the victim's caste was examined as PW29, and
the certificate he issued was marked as Ext.P28.
13. The father of the victim was examined as PW31. He
deposed that the marriage engagement ceremony of his daughter
with the accused was conducted on 28.01.2018 in his house. The
marriage proposal came through a matrimonial site named 'Kerala
Matrimony'. Prior to the engagement on, 07.01.2018, the accused
came to his house along with his mother and aunt to see his
daughter and all of them liked his daughter and asked PW31 to come
to their house. Accordingly on 18.01.2018, he along with 23 relatives
went to the house of the accused and decided to conduct marriage
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engagement ceremony. Thereafter, the engagement ceremony was
conducted and his daughter and the accused exchanged rings as part
of their custom. His daughter wanted to go abroad on 01.02.2018.
As the flight was from Nedumbassery airport, on 29.01.2018, the
accused came to his house to take his daughter to the airport. The
accused assured him that he would drop her at the airport. Hence
on 29.01.2018, his daughter left along with the accused in his car.
Thereafter on 24.05.2018, the accused contacted his wife over the
phone and abused her. Then he along with his neighbour
Prabhakaran went to the house of the accused and then the accused
asserted that he will never marry his daughter.
14. The fact that the accused and the victim of this offence
came into contact with each other through a matrimonial site is
admitted. The evidence of PW1, the victim as well as her parents
clearly shows that after the mooting of the marriage proposal, the
accused visited the house of the victim, along with his parents and
thereafter, the marriage between the accused and the victim was
fixed and a marriage engagement ceremony was conducted. It was
thereafter, the accused allegedly molested the victim and attempted
to commit rape on her, after taking her to a guest house and in two
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hotels. Now the crucial question which is to be addressed is whether
the victim was a consenting party to the alleged sexual acts and if so,
whether the consent was vitiated by the misconception of fact that
she would be married by the accused as already agreed by the
accused.
15. While considering the question of consent, it is to be noted
that it was to a guest house at Guruvayoor, the accused initially took
the victim in the early morning of 30.01.2018. The evidence of PW1
reveals that after reaching the room in the guest house she went for
a bath and thereafter came and laid in a bed. It was thereafter, the
accused joined her in the bed. Thereafter, the accused fondled on
her breast and attempted to have sexual intercourse with her.
Similarly, the evidence of PW1 further shows that on 30.01.2018 itself
they vacated the said room and the accused took her to another
hotel at Kakkanad and again attempted to have sexual intercourse
with her and they spent one night in the said hotel room. Thereafter,
the accused took the victim in his car to drop her at Nedumbassery
airport and on the way they entered into a hotel to fresh up and
inside the room of the said hotel also, the accused attempted to have
sexual intercourse with her.
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16. Evidently, PW1 is not having a case that the accused
touched on her body or attempted to have sexual intercourse with
her irrespective of any objection raised by her. There is no iota of
evidence to show that the victim resisted the accused at any point of
time when the accused approached her with sexual lust. Notably, the
incidents occurred in one guest house and two hotels situated in
different locations. As already stated, initially the victim accompanied
the accused to a guest house at Guruvayoor where she spent time in
bed with the accused without raising any objection. Her evidence
suggests that she voluntarily went to take a bath and thereafter she
laid on the bed where the accused joined her. Although the victim
alleged that the accused attempted to commit rape on her inside the
said guest house where she was initially taken, her subsequent
conduct in accompanying him in two other hotels suggests that she
was a willing participant in the act followed. More pertinently, even
PW1 is not having a case that the sexual acts attributed to the
accused were without her consent. Notably, the prosecution is also
not having such a case. Despite this, the learned Trial Judge
convicted the accused primarily with the aid of the presumption
provided under Section 114A of the Indian Evidence Act, that when a
victim says that the sexual intercourse was without her consent, it is
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to be presumed that the same is not a consensual one. At this
juncture, it is apposite to refer to the provision contained under
Section 114A of the Indian Evidence Act;
"114A. Presumption as to absence of consent in certain
prosecutions for rape.- In a prosecution for rape under clause
(a) or clause (b) or clause (c) or clause (d) or clause (e), clause
(f), clause (g), clause (h), clause (i), clause (j), clause (k),
clause (l), clause (m) or clause (n) of sub-section (2) of section
376 of the Indian Penal Code, (45 of 1860), where sexual
intercourse by the accused is proved and the question is
whether it was without the consent of the women alleged to
have been raped and she states in her evidence before the
court that she did not consent, the court shall presume that she
did not consent."
From a plain reading of the abovesaid provision, it is doubtful
whether a presumption under Section 114A can be drawn in a case
alleging an offence of attempt to commit rape. It may be due to the
reason that the court framed the charge under Section 376 (n) of IPC
also against the accused, the trial court had drawn the presumption
provided under Section 114A of the Indian Evidence Act. Anyway, as
already stated in the case on hand even PW1 is not having a case
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that the alleged molestation and the attempt to commit rape was
without her consent. Only when a victim says that the alleged sexual
intercourse was without her consent, a presumption under Section
114A of the Indian Evidence Act can legally be drawn. When the
foundational fact that the alleged act was a non-consensual one is
not proved, a presumption under Section 114A cannot be drawn.
17. Now the crucial question which is to be addressed is
whether consent was given by the victim on misconception of fact.
In view of Section 90 of I.P.C., if the consent is given by a person
under fear of injury or misconception of facts, the said consent is
vitiated. The misconception of fact alleged by PW1 is the accused's
promise to marry her. Therefore, if a person gave a promise to a
prosecutrix to marry without any actual intention to marry her and
the prosecutrix gave the consent for sexual intercourse on such an
assurance given by the accused that he would marry her, such
consent can be said to be a consent obtained by misconception of
facts as per Section 90 of I.P.C. In other words, there must be
evidence to show that from the inception onwards, the accused was
not having an intention to marry her.
18. The Hon'ble Supreme Court in Pramod Suryabhan
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Pawar v. State of Maharashtra and Another (2019 (9) SCC
608) held that in the absence of allegation in F.I.R. that when
accused promised to marry complainant, it was done in bad faith or
with an intention to deceive her, it cannot be said that any offence
under Section 375 is made out. In the said case, the Hon'ble
Supreme Court observed as follows;
In the present case, the "misconception of fact" alleged
by the complainant is the appellant's promise to marry her.
Specifically in the context of a promise to marry, this court has
observed that there is a distinction between a false promise
given on the understanding by the maker that it will be broken,
and the breach of a promise which is made in good faith but
subsequently not fulfilled. Where the promise to marry is false
and the intention of the maker at the time of making the promise
itself was not to abide by it but to deceive the woman to
convince her to engage in sexual relations, there is a
"misconception of fact" that vitiates the woman's "consent". On
the other hand, a breach of a promise cannot be said to be a
false promise. To establish a false promise, the maker of the
promise should have had no intention of upholding his words at
the time of giving it. The "consent" of a woman under Section
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375 is vitiated on the ground of a "misconception of fact" where
such misconception was the basis for her choosing to engage in
the said act. The allegations in the FIR do not on their face
indicate that the promise by the appellant was false, or that the
complainant engaged in sexual relations on the basis of this
promise. There is no allegation in the FIR that when the
appellant promised to marry the complainant, it was done in bad
faith or with the intention to deceive her.
19. Reverting back to the facts in the present case, it can be
seen that the evidence adduced in this case reveals that it was after
the mutual visit of the parents of both the accused and the victim to
their respective houses, the marriage engagement ceremony was
conducted. The said ceremony was attended by approximately 40
persons including relatives and neighbours of the accused.
Photographs were taken and rings were also exchanged as a
customary practice. The evidence of the neighbours reveals that they
also attended the marriage engagement function. A sequential
analysis of these events suggests that the accused did not harbour
an intention to cheat the victim. The fact that the marriage
engagement ceremony was conducted in the presence of 40 persons
militates against the possibility of any ulterior motive such as sexual
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exploitation. Therefore, at no stretch of imagination, it can be said
that the accused did not intend to marry the victim when the
marriage proposal was made and the engagement ceremony was
conducted. Therefore, the assurance given by the accused to marry
the victim was not a false promise. There is no evidence or
circumstance to suggest that the accused did not intend to keep his
promise to marry the victim when the promise was given. Therefore,
it cannot be said that the consent for the sexual acts given by the
victim is vitiated by any misconception of fact.
The upshot of the above discussion is that the prosecution has
failed to adduce any convincing evidence to prove the commission of
the offences charged against the accused. Resultantly, the appeal
stands allowed and the judgment of conviction and order of sentence
passed against the appellant/accused in S.C.No. 37/2019 on the file
of Special Court for the trial of offences under the SC/ST (POA) Act,
Mananthavady is set aside.
Sd/-
P.B. SURESH KUMAR
JUDGE
Sd/-
JOBIN SEBASTIAN
JUDGE
ANS
