Consent for sexual intercourse is vitiated by misconception of fact, but mutual consent in a relationship does not constitute rape without evidence of malicious intent.

JUDGMENT :

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 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 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 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 was altered to Section 366 of the , 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 on its basis committed rape on her thereby inviting pu