IMPORTANT POINTS
The trial court was correct in awarding the maximum sentence of life imprisonment to the accused as he has committed a breach of the trust that the prosecutrix had in him, especially due to the fact that they were related to each other. He thus invaded her person, by indulging in sexual intercourse with her, in order to appease his lust, all the time knowing that he would not marry her. He committed an act of brazen fraud leading her to believe that he would marry her.

JUDGMENT :

Shaffique, J.

The appeal is filed by the accused in SC No.7/2012 of the Additional Sessions Court, Ernakulam challenging judgment dated 29/10/2014 by which he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs.25,000/- for offence u/s 376 of I.P.C. and to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.25,000/- for the offence u/s 366 of I.P.C. Sentences were to run concurrently.

2. The learned counsel for the appellant Sri.Renjith B.Marar argued that this is a case in which the accused along with the victim were residing together as husband and wife though a valid marriage could not be proved. The evidence in the case only discloses a consensual sexual activity and all along the victim had stated that she was 18 years and above. The finding of the Court below that she was a minor girl aged below 16 years is absolutely baseless and without sufficient material. The material relied upon by the Court below was not enough to prove the age of the victim. They were living as husband and wife for quite a long time and when it was felt that there are issues between them, they had to separate and this is not a case where he had kidnapped a minor girl and used her to satisfy his sexual fantasies. On a re-appreciation of the evidence, these facts would be evident and clear and even assuming that an offence is made out, the accused himself was only 19 years at the time when the alleged commission of offence had occurred and therefore, even if it is found that the accused has committed any of the alleged offences, the discretion of this Court should be exercised and a lesser punishment be imposed on the accused. He has already suffered imprisonment since the date of judgment

3. On the other hand, learned Special Public Prosecutor Smt.S.Ambika Devi, argued that there is enough evidence to prove that the girl is a minor and this is a case in which the accused was having sexual intercourse with her which is evident from the fact that she had become pregnant and had given birth to a child. Her consent is immaterial as she was below the age of 16 years at the time when they were admittedly having sexual activity. Hence, this is a case in which a minor girl below the age of 16 was lured on the belief that they are having a love affair, he utilized her for a substantially long period and ultimately when it was found that she was pregnant, he had disowned her. The whole purpose of his association with the young girl was only for the purpose of sexually abusing her and using her. Such persons do not deserve any sympathy and the Court below had while imposing the sentence taken note of all the factual circumstances involved in the matter and there is no reason why this Court should interfere with the finding of guilt as well as the sentence.

4. Let us first scan through the evidence in the case. PW1 is the victim. According to her, she studied upto 10th standard and thereafter she discontinued. Her date of birth is 18/7/1993. She got acquainted with the accused in the year 2007 in a church where he was selling bangles. He collected her phone number and they used to talk to each other. He expressed his liking towards her. Though she did not want to have a relationship with him, he threatened that he will commit suicide. The said information was passed through another person who styled himself as his brother. On 13/7/2008, the accused came to her house by about 9.30 a.m. She alone was there. He came into her bedroom, removed her clothes and raped her. On 15/8/2008, he again came and forcefully took hold of her and again raped her. On 4/1/2009, he called her over telephone and invited her to reside with him. He also offered to marry her. Left with no other alternative, on 5/1/2009, she went along with him. They proceeded to Kattappana in a bus. He took a building on rent from one Rajamma. They stayed together for about 2 months during which time also she was sexually used. On the second day, on