VINOD KUMAR Vs STATE OF KERALA
Bench: K.S. RADHAKRISHNAN,VIKRAMAJIT SEN
Case number: Crl.A. No.-000821-000821 / 2014
Diary number: 28901 / 2013
Advocates: SENTHIL JAGADEESAN Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. OF 2014 [Arising out of SLP(Crl.) No.9014 of 2013]
VINOD KUMAR …..APPELLANT .…..APPELLANT
Versus
STATE OF KERALA …..RESPONDENT
J U D G M E N T
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
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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
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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
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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 19th April, 2000 accompanied him to the
office of the Registrar, where she had signed a paper in the Maruti
Van which was driven by his driver and in which the latter’s wife and
child were also seated, after which she was dropped back to College
where she wrote her last examination, in the event with success. After
the examination, she accompanied by all these persons went to Katela,
where fully appointed and furnished premises had been taken on rent by
the Appellant; and that the next day she departed for Chavra, where the
Appellant and she stayed in Room No.106 in the Mella Lodge. From
there they left for Coimbatore and, thereafter, to Ooty, where they
stayed for two days, i.e. 22nd and 23rd April, 2000; thereafter, they
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stayed in a house belonging to relatives of the Appellant in Neelagiri for
three days. She has deposed that she had sex with the Appellant at all
these places. It was then and there that her uncle Abdul Rasheed and
his auto-rickshah driver chanced upon them when they had gone to the
market to make some purchases. At that juncture her uncle Abdul
Rasheed took out the photograph of the Appellant’s marriage, a verbal
altercation ensued and the Appellant departed in the Maruti Van. The
prosecutrix has testified that “until uncle showed the photograph of
A1’s marriage I never knew that he is already a married person, A1
never told me that he is married. If I had an hint I would not have done
all this. Thinking that I am the legally wedded wife of A1 I used to
have sexual intercourse”. She has testified that she told her friend and
confidant, Fathima, about the Appellant speaking to her on the phone
and equally importantly, that on her elopement she had informed her
that she was safely staying at Katela. As already recorded, the case of
the defence is that the photograph of the Appellant’s marriage was
subsequently entrusted by the prosecutrix to Fathima. Significantly,
Fathima has not been examined by the prosecution and instead, the ill-
founded contention has been articulated by learned State Counsel that
she could and should have been examined by the Appellant. It is her
say that although she had signed a document which was on stamp paper
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of Rs.50/- and had appeared before the Registrar. She was not aware of
its contents. The prosecution case is that PW2, after her initial
reluctance, was persuaded to immediately accompany the Appellant for
the purpose of registration of marriage. It was in these circumstances
that she believed that she was the legally wedded wife of the Appellant.
As already noted physical sexual relations between the couple have not
been denied. She has testified that had she been aware that the
accused was already married, she would not have ventured into the
relationship.
5 Obviously, the statement of PW2 forms the fulcrum of the case.
According to her 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 already noted, the prosecutrix has, inter alia, stated
that - “He told me that after conversion marriage can be performed and
to know about it went to meet Imam of Palayam Mosque who told him
that conversion is not possible just for marriage and therefore
conversion is possible only after a registered marriage. Thus I agreed
for marriage. He told me that the marriage would be registered on
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19th.” In our opinion this statement is indeed telltale. We cannot lose
perspective of the fact that the prosecutrix is a graduate having
exercised exemplary steadfastness, responsibility, resolve and discipline
in appearing in and passing her last examination for graduation on the
very same day when, in the morning she had appeared before the Sub-
Registrar for registration of an agreement for marriage, and, later, she
had proceeded and participated in her elopement.
6 Another significant feature is that PW4, the Sub-Registrar
Kazhakoottam has deposed that he had registered a “marriage
agreement” between the Appellant and the prosecutrix on 19.4.2000 and
that the document was in the handwriting of a deed-writer named
Mohana Chandran Nair (PW5). In cross-examination he has stated that
he had informed the couple that the marriage would not be complete on
the registration of that agreement, which in his opinion had been
executed by them without any hesitation and with their free consent.
So far as PW5 is concerned, we have carefully considered the
statements made by him in Examination-in-Chief, none of which
appears to run contrary to the prosecution case, yet, inexplicably he has
been declared hostile. It will be apposite to recall that in Rabindra
Kumar Dey vs State of Orissa 1976 (4) SCC 233, this Court has opined
that - “… Merely because a witness in an unguarded moment speaks
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the truth which may not suit the prosecution or which may be favourable
to the accused, the discretion to allow the party concerned to cross-
examine its own witness cannot be allowed. In other words a witness
should be regarded as adverse and liable to be cross-examined by the
party calling him only when the court is satisfied that the witness bears
hostile animus against the party for whom he is deposing or that he does
not appear to be willing to tell the truth. In order to ascertain the
intention of the witness or his conduct, the judge concerned may look
into the statements made by the witness before the Investigating Officer
or the previous authorities to find out as to whether or not there is any
indication of the witness making a statement inconsistent on a most
material point with the one which he gave before the previous
authorities. The court must, however, distinguish between a statement
made by the witness by way of an unfriendly act and one which lets out
the truth without any hostile intention”. It is also evident to us that the
cross-examination of PW5 has the effect of weakening the prosecution
case. All too frequently the cross-examiner is oblivious to the danger
that is fraught in asking questions the answers to which are not known
or predictable and which invariably prove to be detrimental to his
interests. It seems to us that details of Sasi, the social worker who was
a witness to the marriage agreement were available and being a relevant
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witness to elucidate the state of mind of the prosecutrix, she ought to
have been examined by the prosecution. To compound it for the
prosecution, it is in the re-examination of PW5 that it has emerged that
his opinion that document of marriage was deficient if not devoid of
legal validity and efficacy was conveyed to the prosecutrix by PW5 on
18.4.2000, i.e. the day previous to the date of registration. We
emphasise that the testimony of PW5 is of importance because he has
stated that both the prosecutrix as well as the Appellant, as also the
social worker named Sasi, had instructed and engaged him on 18.4.2000
with regard to the drafting of the subject Agreement and that he had told
the prosecutrix that the registration would not create a legal marriage.
7 PW12, namely, Chitralekha, is the wife of the accused/Appellant
and her statement is also very damaging for the prosecution inasmuch as
before the subject elopement, in the course of a telephone call she had
informed the speaker that she was the wife of the Appellant and that the
prosecutrix had subsequently in the course of that conversation
disclosed her name and had told PW12 that she would talk to the
Appellant directly. This witness has also been declared hostile; and she
has subsequently tendered the information that she has separated from
the Appellant and is living in her father’s home. Nothing adverse to the
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stance of the Appellant has been elicited by the Public Prosecutor in her
cross-examination.
8 In Kaini Rajan vs State of Kerala (2013) 9 SCC 113, my
esteemed Brother has explained the essentials and parameters of the
offence of rape in the extracted words, which renders idle any further
explanation or elaboration:-
“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 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”.
9 We are fully mindful receptive, conscious and concerned of the
fact that the Appellant has been found guilty and has been punished by
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both the Courts below for the reprehensible crime of the rape of the
prosecutrix. However, we consider that the verdict manifests a
misunderstanding and misapplication of the law and misreading of the
facts unraveled by the examination of the witnesses. Firstly, the
prosecutrix is a graduate and even otherwise is not a gullible women of
feeble intellect as is evident from her conduct in completing her
examination successfully even on the eventful day, i.e. 19.4.2000. In
fact she has displayed mental maturity of an advanced and unusual
scale. We are convinced that she was aware that a legal marriage could
not be performed and, therefore, was content for the time being that an
agreement for marriage be executed. Secondly, the testimony of PW4
and PW5 independently indicates that the prosecutrix had been made
aware by knowledgeable and independent persons that no legally
efficacious marriage had occurred between the couple. Thirdly, this
state of affairs can reasonably be deduced from the fact that, possibly
on the prompting of the prosecutrix, the Appellant had consulted an
Imam, who both the parties were aware, had not recommended the
Appellant’s conversion to Islam, obviously because of his marital status
and the law enunciated by this Court in this context. Palpably, had he
been a bachelor at that time, there would have been no plausible reason
for the Imam’s reluctance to carry out his conversion. Nay, in the
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ordinary course, he would have been welcomed to that faith, as well as
by his prospective wife’s family, making any opposition even by the
latter totally improbable. For reasons recondite, the Imam has also not
been examined by the prosecution. Fourthly, if he was a bachelor there
would have been no impediment whastsoever for them to marry under
the Special Marriage Act. Fifthly, we cannot discount the statement
attributed to the prosecutrix that her faith permitted polygamy; on
extrapolation it would indicate that she was aware that the Appellant
was already married and nevertheless she was willing to enter into a
relationship akin to marriage with the Appellant, albeit, in the
expectation that he may divorce his wife. Sixthly, the prosecution
should have investigated the manner in which the prosecutrix’s uncle
came into possession of the Appellant’s marriage photograph, specially
since it is his defence that he had given the photograph to the
prosecutrix when she had insisted, on the threat of suicide, that they
should marry each other. The Appellant has also stated that this
photograph had been entrusted to Fathima, on the prosecutrix’s own
showing, was her confidant. Again, for reasons that are unfathomable,
the prosecution has not produced these witnesses, leading to the only
inference that had they been produced, the duplicity in professing
ignorance of the Appellant’s marital status would have been exposed.
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The role of the prosecution is to unravel the truth, and to bring to book
the guilty, and not to sentence the innocent. But we are distressed that
this important responsibility has been cast to the winds. In fact, learned
counsel for the State has contended that Fathima could have been
produced by the Appellant, which argument has only to be stated for it
to be stoutly rejected. The Court can fairly deduce from such an
argument that had Fathima been examined she would have spoken in
favour of the Appellant. Seventhly, it has not been controverted by the
prosecutrix that the Appellant had made all arrangements requisite and
necessary for setting up a home with the prosecutrix. The present case
is not one where the Appellant has prevailed on the prosecutrix to have
sexual intercourse with him on the assurance that they were legally
wedded; the prosecutrix was discerning and intelligent enough to know
otherwise. The facts as have emerged are that the couple were
infatuated with each other and wanted to live together in a relationship
as close to matrimony as the circumstances would permit. Eightly, as
already stated, Sasi should have been examined by the prosecution as
she was a material witness and would have testified as to the state of
mind of the prosecutrix. Finally, the law has been succinctly clarified
in Kaini Rajan. The Court is duty bound when assessing the presence
or absence of consent, to satisfy itself that both parties are ad idem on
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essential features; in the case in hand that the prosecutrix was lead to
believe that her marriage to the Appellant had been duly and legally
performed. It is not sufficient that she convinced herself of the
existence of this factual matrix, without the Appellant inducing or
persuading her to arrive at that conclusion. It is not possible to convict
a person who did not hold out any promise or make any misstatement of
facts or law or who presented a false scenario which had the
consequence of inducing the other party into the commission of an act.
There may be cases where one party may, owing to his or her own
hallucinations, believe in the existence of a scenario which is a mirage
and in the creation of which the other party has made no contribution.
If the other party is forthright or honest in endeavouring to present the
correct picture, such party cannot obviously be found culpable. The
following paragraph from Deelip Singh vs State of Bihar 2005 (1) SCC
88, is extracted:
“ 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 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
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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”.
10 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 in 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.
11 The Appellant is not an innocent man inasmuch as he had willy-
nilly entered into a relationship with the prosecutrix, in violation of his
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matrimonial vows and his paternal duties and responsibilities. If he has
suffered incarceration for an offence for which he is not culpable, he
should realise that retribution in another form has duly visited him. It
can only be hoped that his wife Chitralekha will find in herself the
fortitude to forgive so that their family may be united again and may
rediscover happiness, as avowedly the prosecutrix has found.
12 It is in these premises that we allow the Appeal. We set aside
the conviction of the Appellant and direct that he be released forthwith.
............................................ J.
[K.S. RADHAKRISHNAN]
............................................J.
[VIKRAMAJIT SEN] New Delhi April 04, 2014.
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ITEM NO.1B COURT NO.7 SECTION IIB (for Jt.)
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS
Crl.A.No............../2014 Petition(s) for Special Leave to Appeal (Crl) No(s).9014/2013
(From the judgement and order dated 17/07/2013 in CRLA No.1481/2006, of The HIGH COURT OF KERALA AT ERNAKULAM)
VINOD KUMAR Petitioner(s)
VERSUS
STATE OF KERALA Respondent(s)
Date: 04/04/2014 This Petition was called on for pronouncement of judgment today.
For Petitioner(s) Mr. Raghenth Basant,Adv. Mr. Senthil Jagadeesan,Adv.
For Respondent(s) Ms. Bina Madhavan,Adv.
Hon'ble Mr. Justice Vikramajit Sen pronounced
the judgment of the Bench comprising of Hon'ble Mr.
Justice K.S.Radhakrishnan and His Lordship.
Leave granted.
The appeal is allowed setting aside the
conviction of the appellant and directing that he be
released forthwith.
(SUMAN WADHWA) (RENUKA SADANA) AR-cum-PS COURT MASTER
Signed Reportable Judgment is placed on the file.