Kerala High Court
Kooda Rajan @ Koodakkal Rajan vs State Of Kerala on 7 February, 2025
Crl.Appeal No.216 of 2014
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE C.S. SUDHA
FRIDAY, THE 7TH DAY OF FEBRUARY 2025 / 18TH MAGHA, 1946
CRL.A NO. 216 OF 2014
AGAINST THE JUDGMENT DATED 24.02.2014 IN SC NO.540 OF
2009 OF SPECIAL COURT FOR TRIAL OF OFFENCE U/A 33/1989,
THALASSERY.
APPELLANT/ACCUSED:
KOODA RAJAN @ KOODAKKAL RAJAN
AGED 43 YEARS,
S/O.KUNHIKANNAN, KOODAKKAL HOUSE,
KOLAYAD, KANNUR DISTRICT.
BY ADVS.
SRI.C.P.PEETHAMBARAN
SRI.JENIN JOSEPH
SMT.MINI.V.A.
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
29.01.2025, THE COURT ON 07.02.2025 DELIVERED THE
FOLLOWING:
Crl.Appeal No.216 of 2014
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C.S.SUDHA, J.
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Crl.Appeal No.216 of 2014
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Dated this the 7th day of February 2025
JUDGMENT
In this appeal filed under Section 374(2) Cr.P.C., the
appellant, the sole accused in S.C.No.540/2009 on the file of the
Court of Special Judge for Trial of Offences under Act 33 of
1989, Thalassery challenges the conviction entered and sentence
passed against him for the offence punishable under Section 376
IPC.
2. The prosecution case is that a year before
28/02/2009, the accused who belongs to the Thiyya community
enticed PW1, a member of the scheduled tribe community and
had coitus with her on the promise of marriage. However, when
PW1 became pregnant, the accused refused to marry her. Thus, as
per the final report/charge sheet, the accused was alleged to have
committed the offences punishable under Section 376 IPC and
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Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (the Act).
3. Crime no.20/2009, that is, Ext.P10 FIR was
registered by PW8, the then Additional Sub Inspector of Police,
Peravoor, on the basis of Ext.P1 FIS of PW1. PW10, the Dy.S.P.
conducted investigation in this case and on completion of
investigation submitted the final report/charge sheet before the
jurisdictional magistrate alleging the commission of offences
punishable under the aforementioned sections.
4. The jurisdictional magistrate after complying
with all the necessary formalities contemplated under Section 209
Cr.P.C., committed the case to the Court of Session, Thalassery.
When the accused appeared before the trial court, a charge under
Sections 376 IPC and 3(2)(v) of the Act was framed, read over
and explained to the accused to which he pleaded not guilty.
5. On behalf of the prosecution PW1 to PW10
were examined and Exts.P1 to P14 were marked in support of the
case. After the close of the prosecution evidence, the accused was
questioned under Section 313(1)(b) Cr.P.C. with regard to the
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incriminating circumstances appearing against him in the
evidence of the prosecution. The accused denied all those
circumstances and maintained his innocence.
6. As the trial court did not find it a fit case to
acquit the accused under Section 232 Cr.P.C., he was asked to
enter on his defence and adduce evidence in support thereof. No
oral or documentary evidence was adduced by the accused.
7. On a consideration of the oral and documentary
evidence and after hearing both sides, the trial court by the
impugned judgment acquitted the accused under Section 235(1)
Cr.P.C. for the offence punishable under Section 3(2)(v) of the
Act. However, he has been found guilty of the offence punishable
under Section 376 IPC and hence he has been convicted to
rigorous imprisonment for seven years and to a fine of ₹1,00,000/-
and in default to rigorous imprisonment for one year. The fine
amount, if realised, has been directed to be paid to PW1 as
compensation under Section 357(1) Cr.P.C. Set off under Section
428 Cr.P.C. has been allowed.
8. The only point that arises for consideration in
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this appeal is whether the conviction entered and sentence passed
against the appellant/accused by the trial court are sustainable or
not.
9. Heard both sides.
10. It was submitted by the learned counsel for the
appellant/accused that apart from the testimony of PW1, the
victim there is no evidence including scientific evidence to
support the prosecution case. The paternity of the child was never
established. There is inordinate delay in reporting the matter to the
police. It was also pointed out that, if at all there was any
relationship, it was only consensual. Hence, no offence of rape is
made out and therefore the findings of the trial judge are
untenable and liable to be interfered with.
11. Per contra, it was submitted by the learned
public prosecutor that admittedly PW1, the victim is a member of
the scheduled tribe. Though there was no forcible rape, the
consent of PW1 was obtained on misconception of facts and
hence the ingredients of the offence under Section 375 IPC are
clearly made out and therefore no interference is called for.
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12. I briefly refer to the evidence on record relied on
by the prosecution in support of the case. Ext.P1 FIS of PW1 is
seen recorded by PW7 on 28/02/2009 at 10:00 a.m. In the FIS,
PW1 has stated that she was residing with her grandmother. The
accused about a year back came to construct a house for her
grandmother. During the construction period, the accused
maintained cordial relations with her family. Even after the
construction work was over, he used to contact her over mobile
phone. She also used to meet him on her way to her father's
house. One day while she was on her way to her father's house,
the accused on the promise of marriage, enticed her and took her
to the nearby forest area and had coitus with her. This act was
repeated by the accused thereafter on several days. When she
conceived, she informed the accused, who took her to the Co-
operative Hospital, Thalassery. The doctor informed them that she
was 8 ½ months pregnant. Thereafter, when she tried to call the
accused, he never responded. She did not reveal the incident to
anybody as she was afraid/scared. On 25/02/2009, she had
abdominal pain and hence she was brought to the hospital by her
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relatives, on which date, she delivered a child. When she
informed the birth of the child to the accused, the latter refused to
take responsibility and told her that he was not ready to marry or
take responsibility of a girl belonging to the scheduled tribe. She
did not reveal the incident to anybody as the accused had
promised to marry her. As the accused had cheated her and
refused to maintain her or her child, necessary action may be
taken.
13. PW1, when examined, stands by her case in
Ext.P1 FIS. Nothing was brought out to discredit her testimony.
It is true that no evidence regarding the paternity of the child of
PW1 has been brought in by the prosecution. However, the
paternity of the child is immaterial in a case of rape (Sisu Bhavan
v. Joy Yohannan, 2008 (4) KHC 488 and Babu v. State of
Kerala, 2013 (2) KHC 526). Even in the absence of evidence
regarding paternity, the sole testimony of the victim, if credible,
would be sufficient to prove the offence of rape. Here as noticed
earlier, nothing was brought out to disbelieve the testimony of
PW1. Now the question is whether the offence of rape as
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contemplated under Section 375 IPC is made out. The incident
took place in the year 2008. Therefore, as per Section 375 IPC as
it stood then, a man is said to commit rape if he has sexual
intercourse with a woman without her consent. Consent is not
defined under IPC. Section 90 IPC deals with consent known to
be given under fear or misconception. It says that a consent is not
such a consent as is intended by any Section of the Code, if the
consent is given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act knows, or
has reason to believe, that the consent was given in consequence
of such fear or misconception.
14. Here, the prosecution case is that PW1
consented to coitus as the accused had promised marriage and
therefore it was a consent given under misconception of facts. In
Pramod Suryabhan Pawar v. State of Maharashtra, 2019
KHC 6829: (2019) 3 SCC (CRI) 903, the primary contention
advanced by the prosecutrix was that the appellant/accused
engaged in coitus with her on the false promise of marrying her,
and therefore her "consent", being premised on a "misconception
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of fact" (the promise to marry), stands vitiated. It has been held
that where a woman does not "consent" to the sexual acts
described in the main body of Section 375 IPC, the offence of
rape is made out. While Section 90 IPC does not define the term
"consent", a "consent" based on a "misconception of fact" is not
consent in the eyes of the law. Consent with respect to Section
375 IPC involves an active understanding of the circumstances,
actions and consequences of the proposed act. An individual who
makes a reasoned choice to act after evaluating various alternative
actions (or inaction) as well as the various possible consequences
flowing from such action or inaction, consents to such action. An
inference as to consent can be drawn if only based on evidence or
probabilities of the case. "Consent" is also stated to be an act of
reason coupled with deliberation. It denotes an active will in the
mind of a person to permit the doing of the act complained of.
"Consent", for the purpose of Section 375, requires voluntary
participation not only after the exercise of intelligence based on
the knowledge of the significance of the moral quality of the act
but after having fully exercised the choice between resistance and
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assent. Whether there was a consent or not, is to be ascertained
only on a careful study of all the relevant circumstances. In the
context of a promise to marry, 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. If it is established and proved
that from the inception the accused who gave the promise to the
prosecutrix to marry, did not have any intention to marry and the
prosecutrix gave the consent for sexual intercourse on such an
assurance by the accused that he would marry her, such a consent
can be said to be a consent obtained on a misconception of fact as
per Section 90 IPC and, in such a case, such a consent would not
excuse the offender and such an offender can be said to have
committed the rape as defined under Section 375 IPC and can be
convicted for the offence under Section 376 IPC. 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 get her consent to engage in sexual
relations, there is a "misconception of fact" that vitiates the
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woman's "consent".
14.1. Thus, the court must examine whether at an
early stage a false promise of marriage by the accused was made
and whether the consent of the prosecutrix involved was given
after wholly understanding the nature and consequences of the
sexual indulgence. 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
misrepresentation made to her by the 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 so. Such cases have to be
treated differently. Hence, there must be adequate evidence to
show that at the relevant time, that is, at the initial stage itself, the
accused had no intention whatsoever, of keeping his promise to
marry the victim.
15. In Yedla Srinivasa Rao v. State of Andhra
Pradesh, 2006 KHC 1927 : 2006 (11) SCC 615 the accused
forcibly established sexual relations with the prosecutrix therein.
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When she asked the accused why he had spoilt her life, he
promised to marry her. On this premise, the accused repeatedly
had sexual intercourse with her. When the prosecutrix became
pregnant, the accused refused to marry her. When the matter was
brought before the panchayat, the accused admitted to the sexual
intercourse with the prosecutrix but thereafter absconded. In the
said factual background, it was held that the intention of the
accused as per the testimony of the prosecutrix was right from the
beginning, not honest and that he kept on promising that he will
marry her, till she became pregnant. The evidence on record
showed that the intention of the accused right from the beginning
was not bona fide and that the girl had submitted to the lust of the
accused completely being misled by the accused who held out the
promise for marriage. This kind of consent obtained by the
accused cannot be said to be any consent because she was under a
misconception of fact that the accused intended to marry her,
therefore, she had submitted to sexual intercourse with him.
15.1. I also refer to the dictum of a learned Single
Judge of this Court in Sunil Kumar v. State of Kerala, 2013
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KHC 468 in which it was held that there is no straight jacket
formula in ascertaining whether there is consent in a particular
case. A decision regarding this has to be arrived at on the basis of
the facts and circumstances of each case and in the light of the
evidence adduced in the case. Merely because the victim was aged
about 16 years is not a ground to presume consent. Girls of tender
age can easily be induced away with promise of marriage. Each
case will have to be considered with reference to the evidence
available on record. If a woman indulges in sex believing that the
accused would marry her, consent may be inferred. Mere promise
of marriage without anything more does not constitute
misconception of fact. But if the accused made a promise,
knowing it be false from the very inception, to the victim and had
sexual intercourse and later retracts from his promise, certainly,
there is no consent at all. Instances are several where the victim
indulges in sexual intercourse on the basis that the accused
promised to marry the victim and the victim believes in that
promise. It is true that a mature woman is capable of knowing the
pros and cons of her acts. Section 90 cannot be called in aid in
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such a case to pardon the act of the girl and fasten criminal
liability on the other, unless the court can be assured that from the
very inception the accused never really intended to marry her.
But for the consent given by the victim, the act would be illegal
and would amount to rape. Difficulty arises when one is called
upon to ascertain the state of mind of a person at a particular point
of time. Whether the accused at the inception had the intention to
deceive the victim or whether it was a subsequent promise of
marriage or whether it was a mere promise of marriage etc. are
matters which are difficult to be ascertained. In order to come to
the conclusion regarding the said matters, the conduct of the
accused before, during or after the incident will have to be
considered. In order to ascertain whether there was consent on the
part of the victim also, the same standard has to be applied. Her
conduct before, during and after the incident has to be ascertained.
The potential of consent lies in its authority to metamorphose an
act that is wrong into one which the law will permit.
16. In the case on hand, it needs to be noted that
PW1 is a girl belonging to the scheduled tribe. It is true that there
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was no forcible rape as such in this case. But how was the
consent of PW1 obtained? PW1 deposed that accused promised
to marry her and hence she consented to the coitus. PW1 has also
deposed that it was only much thereafter she came to know that
the accused was married and had children also. The accused
during the trial took up a case of complete denial. He has no case
that PW1 was aware of his marital status and that she had still
consented to the physical relationship. He has no case that they
were in a relationship or that PW1 was in love with him. The
suggestion put to PW1 in the cross examination is that she had
fabricated the case against the accused for extracting money from
him. The accused when questioned under Section 313 Cr.P.C.,
denied all the incriminating circumstances spoken to by the
prosecution witnesses. He submitted that he has no connection
whatsoever with the case and that he is married and has children.
As noticed earlier, nothing was brought out to discredit the
testimony of PW1. There are no reasons as to why she should
come up with a false allegation against the accused. The conduct
of the accused and the victim before the incident, during the
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incident and after the incident needs to be taken into account.
PW1 deposed that she came to be acquainted with the accused
when the latter came to her grandmother's house for the purpose
of constructing a house. He struck up a friendship with her and
developed cordial relations with her family. Even after the
construction works were over, he continued to maintain contact
with her over the mobile phone. He used to meet her while she
used to go to her father's residence. It was on her way to her
father's house, the accused had enticed her on the promise of
marriage, taken her to a nearby forest and had coitus with her.
PW1 deposed that this act was repeated by the accused several
times. When she missed her periods, she informed the accused.
Both of them went to the hospital where the doctor confirmed that
she was pregnant. Thereafter, the accused never contacted her
and he refused to attend her calls. The evidence on record clearly
shows that PW1 had given her consent under a misconception of
fact, that is, on the promise of marriage given by the accused. No
materials have come on record to show that PW1 was aware of the
marital status of the accused and that despite the same she started
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and maintained physical relation with him. That being the
position, I find that the trial court was right in holding that PW1's
consent was obtained on a misconception of fact and hence the
offence of rape is made out.
17. It was also submitted by the learned counsel for
the appellant/accused that in case the court is not inclined to
interfere with the impugned judgment, maximum leniency may be
shown in the sentence to be imposed on the accused. The trial
court has sentenced the accused to rigorous imprisonment for a
period of seven years. As per Section 376 IPC as it stood then, a
person who commits rape is liable to be punished with
imprisonment of either description for a term which shall not be
less than seven years but which may extend to life or for a term
which may extend to ten years and fine. The proviso to the
Section says that for adequate and special reasons to be mentioned
in the judgment, the court has got the power to impose a sentence
of imprisonment for a term less than seven years. The trial court
has only awarded the minimum sentence contemplated under
Section 376 IPC. No adequate and special reasons as
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contemplated under the proviso has been shown to bring down the
sentence of imprisonment from the minimum term of seven years.
Hence in these circumstances, I find no reasons to interfere with
the conviction or sentence passed as per the impugned judgment.
The appeal sans merit is dismissed.
Interlocutory applications, if any pending, shall stand
closed.
Sd/-
C.S.SUDHA
JUDGE
Jms
