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SUPREME COURT OF INDIA
K.S. RADHAKRISHNAN, VIKRAMAJIT SEN, JJ.
VINOD KUMAR – APPELLANT
Versus
STATE OF KERALA – RESPONDENT
CRIMINAL APPEAL No. OF 2014 [Arising out of SLP(Crl.) No.9014 of 2013]
Decided On : 04 – 04 – 2014
(1976) 4 SCC 233 – Relied upon
Indian Penal Code, 1860 – Section 375 – “Consent” 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 – Prosecutrix having mental maturity of an advanced and unusual scale – Fully well knew that her marriage with appellant was not legal – She also knew that the appellant was married – Appellant neither held out any promise nor misrepresented to the prosecutrix – Held, it was commission of consensual sexual relationship – Appellant not guilty of rape. (Para 9, 10)
(2013) 9 SCC 113; (2005) 1 SCC 88 – Relied upon
Facts of the case:
What began as a telephonic friendship strengthened into close acquaintance between the Appellant and the prosecutrix which later blossomed into love, eventually leading them to elope.
According to the prosecutrix the Appellant had introduced himself as a student of B.C.M. College, Kottayam and after they had daily telephonic conversations, they consented to meet each other in person. On 17.1.2000 she accompanied him to Ponmudi, where he proposed marriage to her and they were in each others’ company from 11.00 a.m. to 4.30 p.m. As the prosecutrix was a Muslim, the appellant was ready for conversion but the Imam of Palayam Mosque told him that conversion is not possible just for marriage and therefore conversion is possible only after a registered marriage.
The appellant and the prosecutrix therefore registered a document believing it to be a marriage certificate. They eloped and lived together and even had children.
As the appellant was already married, the prosecutrix filed a criminal case and the appellant was charged and convicted u/s 376, 417 and 419, IPC.
The High Court acquitted the appellant of the charges u/s 417 and 419 IPC, and reduced the sentence.
Finding of the Court:
Appellant cannot he held guilty of rape.
Based on the provided legal document, the key points are as follows:
The court clarified that consensual sexual relationships, where both parties are aware of each other's circumstances and there is no coercion or deception, cannot be automatically classified as rape (!) (!) .
The age and mental maturity of the prosecutrix are significant; a fully capable adult who understands the nature of her actions and the legal implications cannot be presumed to be a victim of rape solely based on her relationship with the accused (!) .
Knowledge of the accused's marital status by the prosecutrix, coupled with her awareness that the relationship was not legally sanctioned, suggests that her consent was based on her own understanding and not on deception or coercion (!) (!) .
The evidence indicates that there was no misrepresentation or false promise made by the accused, and the sexual relations occurred with the full awareness and consent of the prosecutrix, which points towards a consensual relationship (!) (!) .
The court emphasized the importance of examining whether the prosecutrix was induced or persuaded by false representations to believe she was legally married when she was not, and found that she was aware of the facts and entered into the relationship voluntarily (!) (!) .
The absence of certain witnesses and documentary evidence that could have clarified the circumstances surrounding the relationship and the accused’s marital status was noted as a deficiency in the prosecution's case (!) (!) .
The court highlighted that the prosecutrix's own conduct, her awareness of the situation, and her capacity to understand the nature of her actions led to the conclusion that her consent was voluntary and informed (!) (!) .
Overall, the court determined that the relationship was consensual, and there was no sufficient proof beyond reasonable doubt to establish the offence of rape. Consequently, the conviction was set aside, and the accused was ordered to be released (!) (!) .
In summary, the case underscores that for a conviction of rape, it must be established beyond reasonable doubt that the sexual act was non-consensual or obtained through deception or coercion. Voluntary, informed, and mature consent negates the presumption of rape.
JUDGMENT
VIKRAMAJIT SEN,J. –
1. Leave granted.
2. In this Appeal we are confronted with the concurrent conviction of the Appellant under Section 376 of the Indian Penal Code (IPC), although the findings of the two Courts substantially differ. The High Court has set aside his conviction under Sections 417 and 419 IPC, whereas the Additional District & Sessions Judge, Thiruvanthapuram, had sentenced the Appellant to Rigorous Imprisonment for a period of seven years and a fine of Rs.25,000/ – and in default of payment thereof, to undergo Rigorous Imprisonment for three years. In the Impugned Order the High Court has reduced this sentence to Rigorous Imprisonment for a period of four years but, while maintaining the fine of Rs.25,000/ – , has ordered that in default of its deposit, the Appellant would suffer Rigorous Imprisonment for the reduced period of six months. At the commencement of the impugned Judgment, the learned Judge has aptly observed that what began as a telephonic friendship strengthened into close acquaintance between the Appellant and the prosecutrix (PW2) which later blossomed into love, eventually leading them to elope. Despite arriving at this conclusion, the learned Judge has nevertheless termed PW2 as the victim, which seems to us to be an incongruous factual finding leading to a misconception and consequently a misapplication of the law.
3. So far as the facts are concerned, it is uncontroverted that at the material time PW2 was twenty years old and was studying in College for a Degree and that she appeared in and successfully wrote her last examination on 19.4.2000, the fateful day. Thereafter, when she did not return home from college, her father conducted a search which proved to be futile. Accordingly, on the next day, 20th April, 2000, he lodged the First Information Report, Exhibit P – 1. It transpires that the prosecutrix (PW2) has since got married on 11th March, 2001 and at the time of her deposition had already been blessed with children. It is also not controverted that a document was registered with Sub – Registrar Office Kazhakoottam (SRO) which has been variously nomenclatured, including as a marriage registration. The Appellant’s case is that he had met PW2 in the University College and after some meetings and their getting to know each other better she had threatened to commit suicide if he did not marry her; that he immediately informed her that he was already married and had two children and that he had even given his marriage photographs to her, which she had entrusted to her friend, Fathima; that she asked him to divorce his wife; that she informed him that since her religion permitted a man to marry four times at least some documentation should be prepared to evidence their decision and compact to marry each other. It has been contended by the Appellant that sexual intercourse transpired post 19.4.2000 only and was with the free consent of both persons. The Trial Court had applied the Fourth Explanation to Section 375 and, thereafter, held the Appellant guilty, inter alia, of the commission of rape.
4. After considering the evidence of PW2 the High Court has notably concluded that there was no compulsion from the side of the Appellant at any stage, including when the prosecutrix had accompanied him on earlier occasion on a day trip to Ponmudi, when significantly no room had been booked and they had taken food in KTDC Ponmudi. PW2 has adopted the stand that the Appellant had not disclosed the factum of his being a married man and, contrary to the say of the Appellant, that he had threatened to commit suicide if she refused to marry him. She has deposed that he had told her “that after conversion marriage can be performed” but upon inquiry from the Imam he was told that his conversion was not possible just for marriage, and that conversion was possible only after a registered marriage. The prosecutrix has further testified that on the insistence of the Appellant, she had on the morning of 1
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