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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.