Page 1 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

1

Page 2 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, 20

th

April, 2000, he

lodged the First Information Report, Exhibit P-1. It transpires that the

2

Page 3 prosecutrix (PW2) has since got married on 11

th

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

3

Page 4 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 19

th

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. 22

nd

and 23

rd

April, 2000; thereafter, they

4

Page 5 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

5

Page 6 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

6

Page 7 19

th

.” 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

7

Page 8 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

8

Page 9 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

9

Page 10 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

10

Page 11 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

11

Page 12 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.

12

Page 13 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

13

Page 14 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

14

Page 15 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”.

10We 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.

11The Appellant is not an innocent man inasmuch as he had willy-

nilly entered into a relationship with the prosecutrix, in violation of his

15

Page 16 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.

12It 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.

16

Page 17 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.