IMPORTANT POINT
Conviction u/s 376 cannot always be based on the sole evidence of the prosecutrix.

JUDGMENT

K. S. Radhakrishnan, J.

1. Leave granted.

2. This appeal has been filed by the accused who was convicted for an offence punishable under Section 376 IPC and sentenced to undergo Rigorous Imprisonment for seven years. Facts leading to this appeal are as follows:

3. PW2, the prosecutrix, was employed in a Khadi Centre, Kayoor and residing at Arakachal along with her parents, brothers and sisters. According to the prosecution, on 17.9.1997 at about 8.30 AM, when she was proceeding to the Khadi Centre from her house, the accused, a friend of her brother, caught hold of her by hand and forcibly took her to the nearby property of one Karunakaran and committed rape on her, without her consent. She tried to make a hue and cry, but was silenced by the accused by stating that he would marry her. Even after this incident, he had sexual relationship with her on more than one occasions.

4. PW2, later, became pregnant and gave birth to a boy on 24.6.1998 in the Government Hospital, Payyannur. Accused not only not kept his promise to marry her, but even disputed the paternity of the child. PW2 then lodged a complaint on 26.7.1998 before the Assistant Sub-Inspector of Police, Cheemeni Police Station and on the basis of that complaint, police registered Crime No. 64 of 1998. After investigation, the police filed are port charging offences under Sections 376 and 417 IPC against the accused. The case was tried by the Additional Sessions Judge, Kasaragod. From the side of the prosecution, PWs1 to 8 were examined and Exh. P1-P4were marked. When questioned under Section 313 Cr.P.C., the accused denied all incriminating evidence.

5. PW2 deposed that she had previous acquaintance with the accused being his brother's friend. But, on the date of the incident, even though she made a hue and cry, she was threatened and told not to disclose the incident to anybody and also made to believe that he would marry her. PW3,mother of PW2, as well as PW4, the father, deposed that they came to know of the incident only when PW2 became pregnant and only after the delivery of the child they approached the police station to lodge a complaint.

6. The trial Court after appreciating the evidence took the view that subsequent contact of the parties cannot be taken as a ground to infer consent for the incident, which occurred in August 1997. The trial Court also noticed that the accused had spoiled the future of PW2 and disputed the paternity of the child and he cannot escape on the loophole of consent. The trial Court, however, found nothing to attract Section 417 IPC, but convicted the accused under Section 376 IPC and sentenced to him undergo rigorous imprisonment for seven years, together with a fine of Rs.25,000/-with default clause.

7. The accused took up the matter in appeal before the High Court in Criminal Appeal No. 1139 of 2003. The High Court noticed that both in the chief-examination as well as in the cross-examination PW2 has stated that the initial sexual act was without her consent, and though she tried to resist, she was threatened that she would be killed and that the accused promised that he would marry her. PW2, according to the High Court, had no reason or motive to falsify the accused and there is no reason to disbelieve version of PW2 regarding the paternity of the child. The High Court upheld the order of conviction and sentence awarded by the trial Court and dismissed the criminal appeal, against which this appeal has beenfiled.

8. We may indicate that from the reading of the judgments of the Trial Court as well as the High Court, it becomes clear that even as per the version of the prosecutrix, on few occasions there were sexual encounters between the parties, after the first allegd incident in 1997. She accepted that they were consensual and she was a willing party, though she did so on the promise of the appellant that he would marry her. In respect of these subsequent acts between the parties, the appellant was charged with the offence under S