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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1467  OF 2013 [Arising out of SLP (Crl.) No. 3093 of 2012]

Kaini Rajan ..  Appellant

Versus

State of Kerala .. Respondent

J U D G M E N T

K. S. Radhakrishnan, J.

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:

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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 a report  

charging offences under Sections 376 and 417 IPC against the  

accused.   The case was tried by the Additional Sessions Judge,

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Kasaragod.    From the side of the prosecution, PWs1 to 8 were  

examined and Exh. P1-P4 were 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

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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 been filed.

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

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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 Section 417 IPC but exonerated by the trial  

Court itself.  The conviction is related to the first incident which is  

treated  as  rape,  believing  the  prosecution  version  that  it  was  

forcible and without the consent of the prosecutrix.  Entire case is  

to be examined on this limited aspect.  

9. Shri  E.M.S.  Anam,  learned  counsel  appearing  for  the  

appellant, submitted that it is evident from the FIR as well as the  

evidence of PW2 that grievance of PW2 was mainly against the  

breaking of the promise of marriage alleged to have been made  

by the accused and there is absolutely no independent evidence  

to  show  that  the  alleged  sexual  act,  stated  to  have  been  

committed  on  17.9.1997  was  without  her  consent.   Learned  

counsel also submitted that absence of injuries on PW2 and the

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accused, would rule out forcible intercourse without consent.    If  

she had made any hue and cry, that would have been heard by  

the  neighbours  of  the  locality  and none was examined by  the  

prosecution.   Learned counsel submitted that the very fact that  

no one had seen the incident or heard any hue or cry for help, it  

has  to  be  presumed  that  no  such  incident  had  occurred,  as  

alleged by the prosecution.  Learned counsel also submitted that  

there is a considerable delay in lodging the FIR and also no DNA  

test  was  conducted  even  after  the  accused  had  disputed  the  

paternity of the child.   Learned counsel also submitted that the  

conviction is only based on the testimony of PW2 which cannot be  

relied on in the absence of any corroboration, especially in the  

facts and circumstances of the present case.

10. Shri K. K. Sudheesh, learned counsel appearing for the State,  

on the other hand, contended that there is no reason to disturb  

the  findings  recorded  by  the  trial  Court,  affirmed  by  the  High  

Court.  Learned counsel submitted that, in a case of this nature, it  

is difficult to get any direct evidence or eye-witnesses, especially  

when  PW2  has  stated  that  on  the  date  of  the  incident,  even

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though she tried to resist, she was threatened that she would be  

killed and that the accused had promised to marry her.  Learned  

counsel pointed out that the evidence of PW2 that the first sexual  

act was committed by the accused without her consent, can be  

accepted safely even without any corroboration.

11. We have three crucial witnesses in this case.  The first and  

foremost is the prosecutrix herself.  We have gone through her  

evidence  with  great  care.   She  has  stated  in  her  cross-

examination that the accused used to come to her house to meet  

her elder brother, quite often.   In the cross-examination also, she  

has  deposed  that  the  accused  used  to  come  to  her  house  

frequently  since  two  to  three  years  prior  to  the  date  of  the  

incident and that she used to talk to the accused.  PW3, mother of  

PW2, has also deposed in the cross-examination that the accused  

is her son’s friend.  PW4, father of PW2, has also deposed that the  

accused is the friend of his son.  Evidence of PW2 to PW4 would,  

therefore,  clearly  indicate  that  the  accused  was  having  close  

acquaintance with the family of PW2 and he was not a stranger to  

her on the date of the incident.   

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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

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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. [See State  

v. Mango Ram (2000) 7 SCC 224]

13. We are, in this case, concerned with a situation where the  

incident alleged to have occurred at 8.30 AM in day light and at a  

place near the compound of one Karunakaran, not within the four  

walls of a house or a building.   Accused was not a stranger.  The  

The prosecutrix had previous acquaintance with the accused or  

else  in  all  probability  she  would   have  resisted  forcefully,  

attracting passersby or people from the neighbourhood.   She has  

stated  that  she was  threatened and made to  believe  that  the  

accused  would  marry  her.   She  later  became  pregnant  and  

delivered a child, and the paternity of the child is disputed by the  

accused. FIR was lodged after a period of 10 months from the  

date of incident.    

14. This Court examined the scope of Section 375 IPC in a case  

where the facts have some resemblance with the one in hand.  

Reference may be made to the judgment of this Court in Deelip

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Singh alias Dilip Kumar v. State of Bihar (2005) 1 SCC 88.  In  

that case, this Court examined the meaning and content of the  

expression “without her consent” in Section 375 IPC as well as  

whether  the  consent  given  by  woman  believing  the  man’s  

promise to marry her, is a consent which excludes the offence of  

rape.   This Court endorsed the principle that a misrepresentation  

as regards the intention of the person seeking consent, i.e. the  

accused, could give rise to the misconception of fact.     While  

applying this principle to a case arising under Section 375 IPC,  

this  Court  held  that  the  consent  given  pursuant  to  a  false  

representation  that  the  accused  intends  to  marry,  could  be  

regarded as consent given under misconception of fact.   But a  

promise  to  marry  without  anything  more  will  not  give  rise  to  

“misconception  of  fact”  within  the  meaning  of  Section  90 IPC.  

This Court further held that if, on facts, it is established that at the  

very inception of the making of promise the accused did not really  

entertain the intention of marrying her and the promise to marry  

held out by him was a mere hoax, the consent ostensibly given by  

the victim will be of no avail to the accused to exculpate him from  

the ambit of the second clause of Section 375 IPC.  In the facts of

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that  case,  this  Court  held,  that  the  predominant  reason which  

weighed with her in agreeing for sexual intimacy with the accused  

was the hope generated in her of the prospect of marriage with  

the accused.   The Court held that she came to the decision to  

have a sexual affair only after being convinced that the accused  

would marry her and it is quite clear from her evidence, which is  

in  tune  with  her  earlier  version  given  in  the  first  information  

report.   The Court noticed that she was fully aware of the moral  

quality  of  the  act  and the  inherent  risk  involved and that  she  

considered the pros and cons of the act.

15. In Ramdas and Others v. State of Maharashtra (2007) 2  

SCC 170, this Court held that the conviction in case of rape can be  

based solely on the testimony of the prosecutrix, but that can be  

done  in  a  case  where  the  Court  is  convinced  about  the  

truthfulness of the prosecutrix and there exist no circumstances  

which cast a shadow of doubt over her veracity.    

16. Vijayan v. State of Kerala (2008) 14 SCC 763 was a case  

where  the  complaint  was  made  by  the  prosecutirx  after  the  

alleged commission of rape on her by the accused.  At the time of

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making the case, the prosecutrix was pregnant for about seven  

months.  This Court did not place reliance on the sole testimony  

of the prosecutrix.  The Court noticed that flaw that no DNA test  

was conducted to find out whether the child was born out of the  

said incident and the accused was responsible for the said child.   

17. K. P. Thimmappa Gowda v. State of Karnataka (2011)  

14  SCC 475,  was  a  case  where  the  accused  had  assured  the  

prosecutrix that he would marry her and had sexual affair, which  

was repeated on several occasions as well.  But he did not marry  

and she became pregnant.   That was a case where there was  

delay of eight months in filing the complaint.  The accused was  

given the benefit of doubt holding that it would not be possible to  

conclude that the alleged sexual act was committed without the  

consent of the prosecutrix.   

18. We have already referred to the evidence of PW2 to PW4  

and  that  their  consistent  version  is  that  PW2  had  previous  

acquaintance with the accused being her elder brother’s friend for  

a period of more than two years before the date of incident.  The  

place of the alleged incident and the time is very crucial, so for as

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this case is concerned.  It was early morning at 8.30 AM and the  

place of the alleged incident was on the side of a public road.  If  

she had made any semblance of resistance or made any hue and  

cry  it  would  have  attracted  large  number  of  people  from the  

locality.  Further the first information report, as already indicated,  

was lodged after a period of 10 months of the alleged incident.  

All  these factors cast some shadow of doubt on the version of  

PW2.   

19. Behaviour of  the parents of the prosecutirix  viz.  PW3 and  

PW4 also appears to be strange.  On their evidence they stated  

that they came to know about the relations between the appellant  

and the prosecutrix when they found her pregnant.  Prosecutrix  

had told them that the appellant had agreed to marry her.  They  

knew the appellant and his family already.  However, there is not  

even a whisper that they approached the appellant or his family  

members for marrying the prosecutrix.  They straightaway went  

to the police station to lodge the report, that too after the birth of  

the  child.   All  these  factors  cast  a  doubt  on  the  prosecution  

version.  The version of victim, in rape commands great respect

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and acceptability, but, if there are some circumstances which cast  

some doubt in the mind of the court of the veracity of the victim’s  

evidence, then, it is not safe to rely on the uncorroborated version  

of the victim of rape.

20. The trial Court as well as the High Court has committed an  

error  in  holding  that  the  accused  is  guilty  of  the  offence  

punishable under Section 376 IPC.    In such circumstances, we  

are inclined to allow this appeal and set aside the conviction and  

sentence imposed on the appellant and order accordingly.

………………..……..…J.                                                                    (K.S. Radhakrishnan)

………………………….J.                                 (A.K. Sikri)

New Delhi, September 19, 2013