Kerala High Court
Shahul Ameer vs The State Of Kerala on 11 March, 2025
Author: Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
CRL.A NO. 378 OF 2019 1 2025:KER:20016
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
&
THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
TUESDAY, THE 11TH DAY OF MARCH 2025 / 20TH PHALGUNA, 1946
CRL.A NO. 378 OF 2019
AGAINST THE JUDGMENT DATED 22.02.2019 IN SC NO.541 OF 2016
OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI
APPELLANT/ACCUSED:
SHAHUL AMEER
AGED 36 YEARS
S/O. MUSTHAFA, AGED 36 YEARS, IRAHIKKAL HOUSE,
CHATHAMUNDA, POTHUKAL AMSOM, MALAPPURAM DISTRICT
BY ADV K.RAKESH
RESPONDENT/STATE:
THE STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031
BY ADV SRI.RENJITH T.R., SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON
11.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A NO. 378 OF 2019 2 2025:KER:20016
"CR"
J U D G M E N T
Raja Vijayaraghavan, J.
The appellant is the accused in S.C. No. 541 of 2016 on the file of the Special
Court for SC/ST (Prevention of Atrocities) Act Cases, Manjeri. In the said case, he
faced indictment for having committed offences punishable under Sections 363 and
376 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989.
2. By the impugned judgment, he was found guilty and sentenced to
undergo rigorous imprisonment for five years and ordered to pay a fine of ₹10,000/-,
in default of which, he was to undergo rigorous imprisonment for three months for
the offence punishable under Section 366 of the IPC. He was also sentenced to
imprisonment for life and directed to pay a fine of ₹10,000/-, in default of which, he
was to undergo rigorous imprisonment for three months for the offences punishable
under Section 376 of the IPC r/w. Section 3(2)(v) of the SC/ST (Prevention of
Atrocities) Act.
3. The prosecutrix, a 25-year-old woman, belongs to a Scheduled Caste
community. She had completed her Hotel Management course. The accused is a
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Muslim by faith. As per the charge, the accused, despite not being a member of a
Scheduled Caste or Scheduled Tribe, made acquaintance with PW1, fully aware that
she was a member of a Scheduled Caste. He allegedly promised to marry her and, on
the basis of such false promise, abducted her on 09.06.2015, instructing her to meet
him at the Nilambur Bus Stand. From there, the prosecutrix was taken to a rented
building in Chenakkal, where, without her consent, the accused subjected her to
sexual intercourse from 10.06.2015 to 13.06.2015. By his acts, the accused is alleged
to have committed offences punishable under Sections 363 and 376 of the IPC, along
with Section 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of
Atrocities) Act, 1989.
4. On receipt of information from PW1, the prosecutrix, Crime No. 455 of
2015 was registered at the Pookkottumpadam Police Station. The investigation was
conducted by the Deputy Superintendent of Police, Malappuram and on completion
of the same, the final report was submitted before the jurisdictional Magistrate.
5. Committal proceedings were initiated, and the case was committed to
the Court of Session. Later, it was made over to the Special Court for SC/ST (POA)
Act Cases, Manjeri for trial and disposal.
6. After following the procedure, charges were framed under Sections 363
and 376 IPC and Sections 3(1)(w)(i) and 3(2)(v) of the Scheduled Caste and
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Scheduled Tribe (Prevention of Atrocities) Act, 1989. When the same was read over,
the accused pleaded not guilty and prayed that he be tried in accordance with the
law. Later, the charge under Section 363 of the IPC was altered to Section 366 of the
IPC, and the same was read over and explained to the accused, to which he pleaded
not guilty. Additionally, the charge under Section 3(1)(w)(i) of the SC/ST (Prevention
of Atrocities) Amendment Act was deleted, as the said offence had come into force
only on 26.01.2016.
7. To prove its case, 18 witnesses were examined as PWs 1 to 18 and
through them Exts. P1 to P40 were exhibited and marked. MOs 1 to 3 were produced
and identified. After the close of prosecution evidence, the accused were questioned
under Section 313(1)(b) of Cr.P.C. He denied all the incriminating circumstances and
maintained that he was innocent. On the side of the defence, Exts. D1 to D3 were
marked.
8. The learned Sessions Judge, after evaluation of the entire evidence,
came to the conclusion that there was no reason to doubt the credible evidence
tendered by the prosecutrix. It was also held that the consent given by PW1 for
sexual intercourse was under a misconception of fact and therefore vitiated. The
court also held that the appellant had abducted PW1 with the knowledge that she
would be seduced to illicit intercourse thereby attracting Section 366 of the IPC and
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on its basis committed rape on her thereby inviting punishment under Section 376 of
the IPC and Section 3(2) (v) of the SC/ST (PoA) Act.
9. Sri. Rakesh, the learned counsel appearing for the appellant, submitted
that the learned Sessions Judge had failed to properly evaluate the evidence let in by
the prosecution in a proper manner and arrived at the finding of guilt, on erroneous
factual and legal conclusions. He urged that the prosecutrix in her evidence had
deposed that she was aware of the fact that the appellant was a Muslim and that he
was married. It had also come out in evidence that her marriage with one Santhosh
had been fixed when her father was alive and the marriage was scheduled to be held
on 10.06.2015. On the eve of the marriage, PW1 eloped with the appellant. Ext.D1
FIR in Crime No. 440 of 2015 of Pookkottumpadam Police Station was registered
under Section 57 of the Kerala Police Act, 2011 and PW1 was traced out and
produced before the learned Magistrate. Before the learned Magistrate, PW1 stated
that she had eloped with the appellant on her own accord and that she intended to
live with him. She was accordingly permitted to go with the appellant. It is urged by
the learned counsel that the appellant could not have married PW1 under the Special
Marriage Act, 1954, as the said enactment will not permit the solemnisation of
marriage with an individual who has a living spouse. The only way out was for PW1
to convert to Islam and this fact was mentioned to her. PW1 refused to convert and
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immediately thereafter lodged a false complaint before the police. It is submitted that
PW1 has no case that the appellant had told her that he would divorce his wife and
join PW1 but, on the other hand, he had always been stating that polygamy being
permitted in his religion, the only way for them to stay together as husband and wife
was for PW1 to convert. It is further submitted that PW1 is admittedly an educated
person who was pursuing a course in Hotel Management and was 25 years old when
she eloped with the appellant. A purely consensual relationship has been given the
colour of rape to ensure that the appellant is put behind bars for an offence that he
had not committed. He submitted that neither the offence under Section 366 or
Section 376 of the IPC r/w. Section 3(2)(v) of the SC/ST (Prevention of Atrocities)
Act would be attracted in the facts of the instant case.
10. The learned Public Prosecutor submitted that PW1 in her evidence has
clearly stated that she was abducted by the appellant to satisfy his sexual pleasures
by giving a false promise of marriage. Her version is corroborated by medical
evidence as well. It is submitted that the learned Sessions Judge has arrived at the
finding of guilt on the basis of convincing evidence and no interference is warranted.
11. We have carefully evaluated the evidence. We find that the entire case
revolves around the evidence tendered by PW1. We shall notice the evidence
tendered before the learned Sessions Judge, before considering the submissions
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advanced by both sides.
12. PW1, the prosecutrix, submitted that she is a member of the Scheduled
Tribe Community. She became acquainted with the appellant while her father was
undergoing treatment at the Government Hospital in Nilambur. Her father died on
27.03.2015. While her father was alive, her marriage with one Santhosh was fixed
and the same was scheduled to be held on 10.06.2015. According to her, while her
father was in the hospital, she used to seek help from the appellant. He told her that
he was residing with his wife and children at Edakkara. They exchanged phone
numbers and the appellant used to call her. He informed her that he liked her and
expressed his desire to marry her. She responded by saying that she would consider
his request. He assured her that he could take care of both his wife and PW1. On
7.6.2015, the appellant asked her to get her clothes ready. On the next day, he
insisted that she meet him at Nilambur Bus Stand with her belongings, and under the
belief that the appellant would marry her, she took her clothes and went to the stand
in an autorickshaw. This was the day before her proposed marriage. She left home at
about 7:00 a.m. after informing her mother and sister that she was going out to buy
medicine for a headache. The appellant took her to Randathani in a private bus and
reached the house of PW5. There, the appellant introduced her as "Sabitha," and
asked her to wear a headscarf. He told everyone that PW1 was his wife. They spent
CRL.A NO. 378 OF 2019 8 2025:KER:20016
the night at PW5's house. The next day, they moved to a rented quarters in
Chenakkal belonging to PW9. She stated that on the following day, the accused had
a physical relationship with her. However, it was not with her consent. When she
insisted that they could have a sexual relationship only after marriage, the appellant
reassured her that he would marry her. On 13.6.2015, she again had sexual relations
with him without her consent, as demanded by him. On 14.6.2015, the appellant
asked her to get dressed as the police were searching for them. They travelled to
Manjeri by bus but on reaching Manjeri, the appellant was nowhere to be found. She
went to the house of PW7, her father's younger brother. Later, the police arrived and
took her to the Pokkottumpadam Police Station. On 15.6.2015, she was produced
before the Judicial First Class Magistrate, Nilambur, and before the Magistrate she
disclosed her intention to go with the appellant and left the court with the appellant,
who was also present in court. While returning with the appellant, he told her that if
she wanted to get married, she may have to convert to Islam and follow the tenets
of Islam. It was then that PW1 realised that she had been deceived by the appellant.
She approached the police and furnished the statement on 16.6.2015 leading to the
registration of the crime. During cross-examination, she admitted that she got
married to the same person with whom she got engaged when her father was alive.
She admitted that before the Magistrate she had stated that the appellant had not
committed any illegal act upon her. She stated that when she eloped on the day
CRL.A NO. 378 OF 2019 9 2025:KER:20016
before her marriage, she took her bags with her. She admitted that the appellant had
told her that he would support his wife as well as PW1. She stated that she used to
have happy conversations with her fiance even on the day of elopement. She stated
that she had pursued a Hotel Management course at Thiruvananthapuram. She
further stated that she had a physical relationship with the appellant even before the
incident. She admitted that the appellant had told her about his employment and his
wife and children. She said that she had also asked the appellant to convert. She
admitted that she had stated to the Magistrate that it was only on 13.06.2015 that
she realised that the accused was having a wife and children. In re-examination, she
stated that she was having a sexual relationship with the appellant even before the
incident in this case.
13. PW2, the sister of PW1, deposed that PW1 left home on 09.06.2015, the
day before her arranged marriage. She did not return until 14.06.2015.
14. PW3 testified that he was residing at the rented quarters of
Moideenkutty Haji (PW9) in Chenakkal and he confirmed that on 10.06.2015, the
appellant had come there accompanied by a woman wearing a headscarf.
15. PW4, the wife of PW3, also confirmed seeing the appellant with a
woman wearing a headscarf while residing in Chenakkal.
CRL.A NO. 378 OF 2019 10 2025:KER:20016
16. PW5 stated that while living in quarters at Randathani, the appellant
approached him seeking work on daily wages. He, however, did not support the
prosecution case.
17. PW6, the wife of PW5, stated that she knew the appellant but was
unaware of whether he had come with a woman.
18. PW7 stated that PW1 left her home on 9.06.2015, before her marriage
which was scheduled to be held on 10.06.2015. Her mother and younger sister
informed him of her disappearance. On the fifth day after her proposed marriage,
PW1 arrived at his house around 8 p.m. and told him that she had eloped with the
appellant.
19. PW8, stated that the accused stayed in a quarters at Randathani. He
once came to her house for water and told her that he was with his wife.
20. PW9, the owner of the family quarters, confirmed renting the premises
to the accused for ₹1000 per month but stated that he did not see the woman.
21. PW10, a Junior Consultant at District Hospital, Nilambur, examined PW1
on 16.06.2015 and issued Ext.P28 report. She stated that PW1 told her that she had
sexual intercourse three times with the appellant without her consent. However, she
noted that the hymen was torn and old but did not note any indications of a recent
CRL.A NO. 378 OF 2019 11 2025:KER:20016
sexual act.
22. PW11, an Assistant Surgeon at District Hospital, Nilambur, examined the
accused on 19.06.2015 and issued Ext.P29 certificate confirming that he was capable
of performing sexual acts.
23. PW12, the Village Officer, Pothukal, issued Ext.P30 community certificate
identifying him as a member of the Islam-Mappila community. PW13, the Special
Village Officer prepared Ext.P31 rough sketch of the location.
24. PW14, Tahsildar at Nilambur, issued Ext.P32, confirming that PW1
belongs to the Hindu-Kattunaikka Scheduled Tribe.
25. We have considered the submissions advanced and carefully reviewed
the records. Before we consider the merits of the matter, we shall note the law
involved.
26. Though the appellant has raised a contention that he has no emotional
or physical connection with the prosecutrix, we are of the view that it has come out
in evidence that the appellant and PW1 were in a relationship. The specific
contention of the appellant is that he did not suppress any material facts from the
prosecutrix to obtain her consent. His contention is that it was legally impossible for
him to invoke the provisions of the Special Marriage Act, 1954, and solemnize a
CRL.A NO. 378 OF 2019 12 2025:KER:20016
marriage with the prosecutrix, as he already had a living spouse. After securing her
release from the Magistrate's custody, and with the intention of continuing the
relationship, the appellant made it clear that the only viable option was for the
prosecutrix to convert to Islam, as this would allow him to continue supporting his
wife, children, and PW1. His willingness to enter into such an arrangement stemmed
from the fact that polygamy was not prohibited in his faith, and therefore, he was
prepared to take responsibility for the prosecutrix as well. However, the prosecutrix
was not agreeable to this condition and subsequently approached the police, and
lodged the complaint.
27. The only question is whether the offence of rape has been established in
the instant case. The incidental question would be whether the consent given by the
prosecutrix to the appellant for sexual intercourse is vitiated by a misconception of
facts. For ease and clarity, the facts established by evidence can be summarised as
under :
a) The prosecutrix is a member of the Scheduled Tribe and the appellant is a
Muslim.
b) They fell in love despite the awareness of the prosecutrix of the religion and
whereabouts of the appellant and also of the fact that he had a wife and
child.
CRL.A NO. 378 OF 2019 13 2025:KER:20016
d) At the time of the alleged offence, the prosecutrix was 25 years old and had
pursued Hotel Management course in Thiruvananthapuram.
e) Her marriage to one Santhosh had been arranged and was scheduled to be
solemnized on 10.06.2015.
e) On the night before her arranged marriage, she left her house after packing
her bags, and after convincing her family members that she needed to
purchase medicines.
f) Even prior to her elopement, she had sexual intercourse with the appellant.
g) The assurance given by the appellant to PW1 was that he would continue to
support both his legally wedded wife and children as well as the
prosecutrix. PW1 had no objection to this arrangement.
h) The prosecutrix was produced before the Magistrate in connection with a
crime registered under Section 57 of the Police Act, 2011. On production,
she stated that she desired to go with the appellant, and accordingly, the
court permitted her to do so.
i) The appellant insisted that the prosecutrix convert to Islam if he were to
marry her. She also demanded that the appellant convert to her community.
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28. Now we shall refer to the provisions and the law relating to consent in
such cases. Section 375 of the IPC defines Rape. It reads as under.
375. Rape.--A man is said to commit "rape" if he--
(a) xxxxx
(b) xxxx
(c) xxxxxx; or
(d) xxxxxxxxx,
under the circumstances falling under any of the following seven
descriptions--
First.--Against her will.
Secondly.--Without her consent.
Thirdly.--With her consent, when her consent has been obtained by
putting her or any person in whom she is interested, in fear
of death or of hurt.
Fourthly.--With her consent, when the man knows that he is not her
husband and that her consent is given because she believes
that he is another man to whom she is or believes herself to
be lawfully married.
Fifthly.--With her consent when, at the time of giving such consent,
by reason of unsoundness of mind or intoxication or the
administration by him personally or through another of any
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stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which
she gives consent.
Sixthly.--With or without her consent, when she is under eighteen
years of age.
Seventhly.--When she is unable to communicate consent.
Explanation 1.--xxxxxxxx
Explanation 2.--Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form
of verbal or non-verbal communication, communicates
willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of
penetration shall not by the reason only of that fact, be regarded as
consenting to the sexual activity.
29. As is evident from the provisions, Section 375 defines the offence of
rape and enumerates six descriptions of the offence. The first clause operates where
the woman is in possession of her senses and, therefore, capable of consenting but
the act is done against her will and the second where it is done without her consent;
the third, fourth and fifth when there is consent but it is not such a consent as
excuses the offender, because it is obtained by putting her, or any person in whom
she is interested, in fear of death or of hurt. The expression "against her 'will'"
means that the act must have been done in spite of the opposition of the woman. An
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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.
30. Section 90 of the IPC defines "consent" as known to be given under fear
or misconception:
"Section 90: Consent known to be given under fear or
misconception.--A consent is not such a consent as it intended by any
section of this 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"
31. Thus, Section 90 of the IPC though does not define consent, but
describes what is not consent. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. If the consent is given by the
complainant under misconception of fact, it is vitiated. Consent for the purpose of
Section 375 of the IPC requires voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance and moral quality of the act
but also after having fully exercised the choice between resistance and assent.
Whether there was any consent or not is to be ascertained only on a careful study
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of all relevant circumstances. (See: Dr. Dhruvaram Murlidhar Sonar v. State Of
Maharashtra And Others1)
32. In Deepak Gulati v. State Of Haryana2, the Apex Court had observed
as under:
21. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. Consent is an act of
reason, accompanied by deliberation, the mind weighing, as in a
balance, the good and evil on each side. There is a clear distinction
between rape and consensual sex and in a case like this, the court must
very carefully examine whether the accused 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 latter falls within the
ambit of cheating or deception. There is a distinction between the mere
breach of a promise, and not fulfilling a false promise. Thus, the court
must examine whether there was made, at an early stage a false
promise of marriage by the accused; and whether the consent involved
was given after wholly understanding the nature and consequences of
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 must
be treated differently. An accused can be convicted for rape only if the
[ 2018 SCC ONLINE SC 3100]
[(2013) 7 SCC 675]
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court reaches a conclusion that the intention of the accused was mala
fide, and that he had clandestine motives.
xxxx xxxxxx xxxxxx
24. Hence, it is evident that there must be adequate evidence
to show that at the relevant time i.e at the initial stage itself, the
accused had no intention whatsoever, of keeping his promise to marry
the victim. There may, of course, be circumstances, when a person
having the best of intentions is unable to marry the victim owing to
various unavoidable circumstances. The "failure to keep a promise made
with respect to a future uncertain date, due to reasons that are not very
clear from the evidence available, does not always amount to
misconception of fact. In order to come within the meaning of the term
"misconception of fact", the fact must have an immediate relevance".
Section 90 IPC cannot be called into aid in such a situation, to pardon
the act of a girl in entirety, and fasten criminal liability on the other,
unless the court is assured of the fact that from the very beginning, the
accused had never really intended to marry her.
33. In Kaini Rajan v. State Of Kerala3, the Apex Court had explained the
essentials and parameters of the offence of rape. It was observed in paragraph 12 of
the judgment as under:
"12. Section 375 IPC defines the expression "rape", which
indicates that the first clause operates, where the woman is in possession
of her senses, and therefore, capable of consenting but the act is done
against her will; and second, where it is done without her consent; the
[(2013) 9 SCC 113]
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third, fourth and fifth, when there is consent, but it is not such a consent
as excuses the offender, because it is obtained by putting her on any
person in whom she is interested in fear of death or of hurt. The
expression "against her will" means that the act must have been done in
spite of the opposition of the woman. 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 an act
complained of. Section 90 IPC refers to the expression "consent". Section
90, though, does not define "consent", but describes what is not consent.
"Consent", for the purpose of Section 375, requires voluntary participation
not only after the exercise of intelligence based on the knowledge of the
significance and moral quality of the act but after having fully exercised
the choice between resistance and assent. Whether there was consent or
not, is to be ascertained only on a careful study of all relevant
circumstances. (See State Of H.P v. Mango Ram . (2000) 7 SCC 224.)"
34. In Deelip Singh v. State of Bihar4, the principles of consent vis a vis
the offence under Section 376 of the IPC was further explained as under:
19. The factors set out in the first part of Section 90 are from the
point of view of the victim. The second part of Section 90 enacts the
corresponding provision from the point of view of the accused. It
envisages that the accused too has knowledge or has reason to believe
that the consent was given by the victim in consequence of fear of injury
or misconception of fact. Thus, the second part lays emphasis on the
knowledge or reasonable belief of the person who obtains the tainted
(2005) 1 SCC 88
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consent. The requirements of both the parts should be cumulatively
satisfied. In other words, the court has to see whether the person giving
the consent had given it under fear of injury or misconception of fact and
the court should also be satisfied that the person doing the act i.e. the
alleged offender, is conscious of the fact or should have reason to think
that but for the fear or misconception, the consent would not have been
given. This is the scheme of Section 90 which is couched in negative
terminology.
35. In Uday v. State Of Karnataka5, while holding on the basis of facts
presented in the said case that consent cannot be said to be given under a
misconception of fact. It was held thus:--
21. It therefore appears that the consensus of judicial opinion is
in favour of the view that the 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. A false promise is not a fact within the meaning
of the Code. We are inclined to agree with this view, but we must add
that there is no straitjacket formula for determining whether consent
given by the prosecutrix to sexual intercourse is voluntary, or whether it is
given under a misconception of fact. In the ultimate analysis, the tests
laid down by the courts provide at best guidance to the judicial mind
while considering a question of consent, but the court must, in each case,
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,
(2003) 4 SCC 46
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or was given under a misconception of fact. It must also weigh the
evidence keeping in view the fact that the burden is on the prosecution to
prove each and every ingredient of the offence, absence of consent being
one of them.
36. In Dr. Dhruvaram (supra) while summarising the principles, it was
observed as under:
23. 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 rape. The
acknowledged consensual physical relationship between the parties would
not constitute an offence under Section 376 of the IPC.
37. In State of Kerala v Vinod Kumar6, the facts were that telephonic
[(2014) 5 SCC 678
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friendship between the prosecutrix and the accused strengthened into a close
acquaintance and then love eventually leading them to escape. He proposed
marriage to her and they were in each other's company. As the prosecutrix was a
Muslim, the appellant was ready for conversion but the Imam of the Mosque told him
that conversion was not possible just for marriage and conversion was possible only
after registering the marriage. The appellant and the prosecutrix registered a
document believing it to be a marriage certificate. Later, it came to know that the
appellant was already married and hence a criminal complaint was filed alleging rape
and cheating. While dealing with the facts and law, it was observed as under by the
Apex Court.
14. We are in no manner of doubt that in the conspectus that
unfolds itself in the present case, the prosecutrix was aware that the
appellant was already married but, possibly because a polygamous
relationship was not anathema to her because of the faith which she
adheres to, the prosecutrix was willing to start a home with the appellant.
In these premises, it cannot be concluded beyond reasonable doubt that
the appellant is culpable for the offence of rape; nay, reason relentlessly
points to the commission of consensual sexual relationship, which was
brought to an abrupt end by the appearance on the scene of the uncle of
the prosecutrix. Rape is indeed a reprehensible act and every perpetrator
should be punished expeditiously, severally and strictly. However, this is
only possible when guilt has been proved beyond reasonable doubt. In
our deduction there was no seduction; just two persons fatally in love,
their youth blinding them to the futility of their relationship.
CRL.A NO. 378 OF 2019 23 2025:KER:20016
38. The evidence discloses that the prosecutrix was fully aware that the
appellant was already married with children. She has never claimed that she
expected or wanted the appellant to divorce his wife in order to marry her. Her
evidence is that the appellant assured her that he would support his wife and child
and PW1 at the same time. The prosecutrix was more than willing to have such an
arrangement. Furthermore, this is not a case where the appellant misrepresented
himself as an unmarried man to secure the prosecutrix's consent. The evidence does
not support the case of the prosecution that the appellant made false promises, nor
does it suggest that he misstated any fact. He did not fabricate a deceptive scenario
that could have misled the prosecutrix into committing any act under a mistaken
belief. Admittedly, even prior to the incident, PW1 had been maintaining a sexual
relationship with the appellant. It cannot be lost sight that the prosecutrix--a
25-year-old adult, capable of making independent decisions--knowingly left her
home on the eve of her proposed marriage and eloped with the appellant. She
packed her bags and departed after misleading her family members about the true
reason for her departure. As noticed in Deepak Gulati (supra), the facts presented
in the instant case reveal that the prosecutrix agreed to have sexual intercourse on
account of her love and passion for the accused, and not on account of any
misrepresentation made to her. An accused can be convicted of rape only if there are
materials to suggest that the intention of the accused was mala fide and that he had
CRL.A NO. 378 OF 2019 24 2025:KER:20016
clandestine motives. If for one reason or the other, the relationship between two
persons could not be crystallised into a marriage, for reasons beyond the control of
one person, or due to an act or omission from the other party, it may not come
within the ambit of rape.
39. In light of the discussion above, we hold that the prosecution has failed
to establish that, from the very outset, the accused never intended to marry the
prosecutrix or that he induced her into a relationship based on false promises of
marriage. Furthermore, the consent of the prosecutrix to engage in sexual relations
cannot be deemed vitiated by a misconception of fact under Section 90 of the Indian
Penal Code. The evidence does not indicate that the appellant lured or coerced the
prosecutrix by means of deception, nor does it demonstrate that her consent was
obtained through fraud or misrepresentation. In that view of the matter, the offence
under Section 376 of the IPC is not made out in the instant case. There is also no
material to suggest that he entered into a relationship with PW1 to exploit or
denigrate PW1 on the basis of her caste or tribe. In that view of the matter, Section
3(2)(v) of Act 33 of 1989 may not have any application. Insofar as Section 366 of the
IPC is concerned, the prosecution has to establish that the accused abducted the
woman with the intent that she may be compelled, or knowing it to be likely that she
will be compelled to marry any person or in order that she may be forced or seduced
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to illicit intercourse or knowing it to be likely that she will be forced or seduced to
illicit intercourse. (See: Kavita Chandrakant Lakhani v. State of Maharashtra7).
In the instant case, there is no evidence to establish the ingredients of the offence
under Section 366 of the IPC as well. In that view of the matter, we are unable to
uphold the judgment passed by the learned Sessions Judge finding the appellant
guilty for the offence under Section 376 of the IPC r/w. Section 3(2)(v) of the
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 and Section
366 of the IPC.
This appeal is allowed. The finding of guilt, conviction and sentence passed
against the appellant in S.C. No. 541 of 2016 on the file of the Special Court for
SC/ST (Prevention of Atrocities) Act Cases, Manjeri will stand set aside and the
appellant/accused is acquitted of all charges. The appellant/accused be set at liberty
forthwith if his continued incarceration is not required in connection with any other
case.
sd/-
RAJA VIJAYARAGHAVAN V,
JUDGE
Sd/-
VIJU ABRAHAM,
JUDGE
PS/9/03/25
(2018) 6 SCC 664
