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Jomon @ Rocky v/s State of Kerala, Represented by The Public Prosecutor, High Court of Kerala, Ernakulam

    CRL.A. No. 147 of 2015

    Decided On, 19 August 2019

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE A.M. SHAFFIQUE & THE HONOURABLE MR. JUSTICE N. ANIL KUMAR

    For the Appellant: Renjith B. Marar, Reshmi Jacob, P.B. Suneer, Advocates. For the Respondent: S. Ambikadevi, Spl. PP.



Judgment Text

Shaffique, J.

1. The appeal is filed by the accused in SC No.7/2012 of the Additional Sessions Court, Ernakulam challenging judgment dated 29/10/2014 by which he was convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 25,000/- for offence u/s 376 of I.P.C. and to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 25,000/- for the offence u/s 366 of I.P.C. Sentences were to run concurrently.

2. The learned counsel for the appellant Sri.Renjith B.Marar argued that this is a case in which the accused along with the victim were residing together as husband and wife though a valid marriage could not be proved. The evidence in the case only discloses a consensual sexual activity and all along the victim had stated that she was 18 years and above. The finding of the Court below that she was a minor girl aged below 16 years is absolutely baseless and without sufficient material. The material relied upon by the Court below was not enough to prove the age of the victim. They were living as husband and wife for quite a long time and when it was felt that there are issues between them, they had to separate and this is not a case where he had kidnapped a minor girl and used her to satisfy his sexual fantasies. On a reappreciation of the evidence, these facts would be evident and clear and even assuming that an offence is made out, the accused himself was only 19 years at the time when the alleged commission of offence had occurred and therefore, even if it is found that the accused has committed any of the alleged offences, the discretion of this Court should be exercised and a lesser punishment be imposed on the accused. He has already suffered imprisonment since the date of judgment

3. On the other hand, learned Special Public Prosecutor Smt.S.Ambika Devi, argued that there is enough evidence to prove that the girl is a minor and this is a case in which the accused was having sexual intercourse with her which is evident from the fact that she had become pregnant and had given birth to a child. Her consent is immaterial as she was below the age of 16 years at the time when they were admittedly having sexual activity. Hence, this is a case in which a minor girl below the age of 16 was lured on the belief that they are having a love affair, he utilized her for a substantially long period and ultimately when it was found that she was pregn

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ant, he had disowned her. The whole purpose of his association with the young girl was only for the purpose of sexually abusing her and using her. Such persons do not deserve any sympathy and the Court below had while imposing the sentence taken note of all the factual circumstances involved in the matter and there is no reason why this Court should interfere with the finding of guilt as well as the sentence.

4. Let us first scan through the evidence in the case. PW1 is the victim. According to her, she studied upto 10th standard and thereafter she discontinued. Her date of birth is 18/7/1993. She got acquainted with the accused in the year 2007 in a church where he was selling bangles. He collected her phone number and they used to talk to each other. He expressed his liking towards her. Though she did not want to have a relationship with him, he threatened that he will commit suicide. The said information was passed through another person who styled himself as his brother. On 13/7/2008, the accused came to her house by about 9.30 a.m. She alone was there. He came into her bedroom, removed her clothes and raped her. On 15/8/2008, he again came and forcefully took hold of her and again raped her. On 4/1/2009, he called her over telephone and invited her to reside with him. He also offered to marry her. Left with no other alternative, on 5/1/2009, she went along with him. They proceeded to Kattappana in a bus. He took a building on rent from one Rajamma. They stayed together for about 2 months during which time also she was sexually used. On the second day, on reaching Kattappana, she called her house and informed that she is residing with the accused at Kattappana. After two months, she was brought back to her house. Her gold ornaments were pledged for the purpose of taking the building on rent and her two bangles were sold and the money was misutilized. On 16/4/2009, the accused took her to Malappuram. There they stayed in the house of the accused. On 25/4/2009, when she went to the hospital, she found that she was pregnant. She was taken to her house to take rest. He also apologized to her father and mother and offered to marry her. In between, he used to come to her house. On 29/11/2009, he called her mother and asked for Rs. 30,000/- and he threatened that she will give birth to a bastard. Her family did not pay the money. She gave birth to a girl child on 25/1/2010. The accused did not come thereafter. She filed a complaint to the police, which is marked as Ext.P1. She also stated that about Rs. 2 lakh was paid by her mother on different occasions. A second hand autorickshaw was also purchased and given to him. During cross-examination, she was asked regarding the omission in Ext.P1 that he forcibly had sexual intercourse with her. According to her, it is only an omission. She further stated that her father and mother had come to Kattappana and they asked her not to come back. She also stated that before going to Kattappana, they had gone to Nedungandam. The aunt of the accused had given a complaint to the police. At the instance of police, father and mother had come to Nedungandam and took her back. The case of the accused in the defence is total denial.

5. PW2 is the mother of PW1. She also stated that her daughter was born on 18/7/1993. She deposed that they had come to know about the eloping of their daughter with the accused after two days when she called from Kattapana. Though they proceeded to Kattappana, her daughter was not willing to come along with them. At that time, the aunt of accused gave a complaint to the police and at the instance of the police, she came back. Again when the accused threatened that he will commit suicide, her daughter had gone with him to Malappuram where she became pregnant and thereafter she was sent home. They came home. He had taken around Rs. 2.5 lakhs from them and he did not care to return it back. During cross-examination, she stated that her daughter had not informed about the incident in which the accused had come to their house.

6. PW8 has given on rent a building to the accused on 6/1/2009. Along with him, his wife Sangeetha was also residing there. Ext.P6 is the rent chit. PW9 is a neighbour of PW8. He identified the accused and stated that he was residing at PW8's house and there was a girl about 20 years old residing along with him. He is a witness to Ext.P7 mahazar prepared by the police. PW10 is another neighbour of PW8. He is a witness to Ext.P8 mahazar by which the rent chit was handed over to the police. PW11 is a person residing at Karuvarakandy, Malappuram District. He knew the accused who was staying in an estate building intended for workers. That was during 2009. There was a girl along with the accused. The police had come and had prepared a mahazar, but he did not sign the same. In crossexamination he stated that accused resided there for two months and the girl was brought by stating that she was his wife.

7. This is a case in which the prosecution alleges that PW1 was raped by the accused on 13/7/2008, 15/8/2008 and thereafter while they resided together from 5/1/2009 until she was sent back to her house some time after 25/4/2009 when it was known that she was pregnant. Thereafter he used to come occasionally and finally on 29/11/2009 onwards, he having demanded Rs. 30,000/- for his sister's marriage which was refused by PW1's parents, he did not come back. The prosecution case is that at the relevant time, she was below the age of 16. Under Section 375 of I.P.C. as it then was, sexual intercourse with a girl under 16 years of age, even consensual, amounts to rape and the punishment provided is of either description for a term which shall not be less than 7 years but which may be for life or for a term which may extend to 10 years and shall also be liable to fine. Proviso indicates that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than 7 years. S.376(2), as it then was, may not apply to the facts of the case. In Ext.P1 complaint, she had stated that on 13/7/2008, he came to her house and they had sexual intercourse. She further stated that he had threatened that he will commit suicide if she does not permit him to have sexual intercourse. Further, he had offered to marry her as well. On 31/8/2008, he again called and threatened that he will kill himself if she does not go with him. On the next day, she went along with him and they stayed at Kattappana in a rented building for some time. It is further stated that the matter was informed to the parents. Accused apologized to her father and there was a settlement and they resided together at Malappuram where she became pregnant.

8. From the evidence of PW1, her FI statement, Ext.P1 and the evidence of PW2, it is rather clear that she was voluntarily residing with the accused as husband and wife. Initially, she permitted to have sexual intercourse when he threatened that he would kill himself. Apparently, they had consensual sex over a period of time. But the question is whether the victim was under 16 years of age at the relevant time. Her oral testimony would show that her date of birth was 18/7/1993. PW12 has been examined to prove the age of the victim. She is the Headmistress of Kothad Higher Secondary School of Jesus. She produced Ext.P9, the school admission register which indicates that the date of birth of the girl was 18/7/1993. The extract of admission register signed by the Headmistress would indicate that the girl was admitted to Standard VIII on 8/5/2006. No other material is available. In fact, the Apex Court in Jarnail Singh v. State of Haryana [(2013) 7 SCC 263] and then in Mahadeo v. State of Maharashtra [(2013) 14 SCC 637] had occasion to consider the relevancy of extract of school records produced in similar cases and has held that the documents which are required to be produced under the provisions of Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007 can be considered for proving the age of the victim. In fact, later by virtue of Section 94(2) of the Juvenile Justice (Care and Protection of Children) Act, 2015, the documents required for proving the age of a child/juvenile has been clearly stated, the relevant portion of which reads as under:-

“94. Presumption and determination of age.

1. ...

2. In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining —

i. the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

ii. the birth certificate given by a corporation or a municipal authority or a panchayat;

iii. and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.”

Of course, the crime under consideration was committed prior to the passing of 2015 Act. Hence, the provision applicable is 2007 Rules.

9. The document produced as Ext.P9, the extract of school admission register which discloses the date of birth of the victim is to be reckoned as her “date of birth certificate from the school” as envisaged under Rule 12(3) of the Juvenile Justice (Care and Protection of Children) Rules, 2007. That apart, though PW1 stated that her date of birth was 18/7/1993, there is no cross-examination on that point. During cross-examination, she stated that she had pledged her ornaments in the name of his mother and the said amount was given to the accused. That was during 2008. It was pledged in a private financing company at Pizhala. When she was asked what her age was when she pledged the gold ornaments, she said she was 16 years. PW2 also stated in her evidence that her daughter's date of birth was 18/7/1993. The cross-examination regarding age is only questioning that at the time of baptism ceremony, a certificate would be given and that normally a person can pledge ornaments only if he/she is a major. During 313, he denied every incriminating evidence against him. He even denied the fact that he knew the victim.

10. Learned Public Prosecutor also placed reliance on the judgment of the Apex Court in State of U.P v. Naushad [(2013) 16 SCC 651]. That was a case in which the accused promised to marry the victim and was having regular sexual intercourse on the said pretext. He continued this for about two years and the girl became pregnant. On the information given to the police, the accused was charge-sheeted for the offence u/s 376 of I.P.C. The trial Court convicted the accused. However, the High Court observed that the girl being a consenting party to the act of the accused, the allegation of forcible sexual intercourse cannot be accepted. Accordingly, the appeal was allowed and the judgment of the trial Court was set aside. The Apex Court having considered the issue in detail, held at paragraphs 16 to 23 as under:-

“16. We will answer Points (i) and (ii) together as they are related to each other.

17. Section 376 IPC prescribes the punishment for the offence of rape. Section 375 IPC defines the offence of rape, and enumerates six descriptions of the offence. The description “secondly” speaks of rape “without her consent”. Thus, sexual intercourse by a man with a woman without her consent will constitute the offence of rape. We have to examine as to whether in the present case, the accused is guilty of the act of sexual intercourse with the prosecutrix “against her consent”. The prosecutrix in this case has deposed on record that the accused promised marriage with her and had sexual intercourse with her on this pretext and when she got pregnant, his family refused to marry him with her on the ground that she is of “bad character”.

18. How is “consent” defined? Section 90 IPC defines consent known to be given under “fear or misconception” which reads as under:

“90. Consent known to be given under fear or misconception.—A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;”

(emphasis supplied)

Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated.

19. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 IPC. Thus, the alleged consent said to have been obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her.

20. In Yedla Srinivasa Rao v. State of A.P., with reference to similar facts, this Court in para 10 held as under: (SCC pp. 620-21)

“10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, being completely misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent.”

Further, in para 17 of the said judgment, this Court held that: (Yedla Srinivasa Rao case, SCC p. 624)

“17. In the present case, in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law. This is more evident from the testimony of PW 1 as well as PW 6 who was functioning as the panchayat where the accused admitted that he had committed sexual intercourse and promised to marry her but he absconded despite the promise made before the panchayat. That shows that the accused had no intention to marry her right from the beginning and committed sexual intercourse totally under the misconception of fact by the prosecutrix that he would marry her.”

Thus, this Court held that the accused in that case was guilty of the offence of rape as he had obtained the consent of the prosecutrix fraudulently, under a misconception of fact.

21. The High Court has gravely erred in fact and in law by reversing the conviction of the accused for the offence of rape and convicting him under Section 376 IPC. It is apparent from the evidence on record that the accused had obtained the consent of the prosecutrix for sexual intercourse under a misconception of fact i.e. that he would marry her and thus made her pregnant. He is thus guilty of rape as defined under Section 375 IPC and is liable to be punished for the offence under Section 376 IPC. The trial court was absolutely correct in appreciating the evidence on record and convicting and sentencing the accused for the offence of rape by holding that the accused had obtained the consent of the prosecutrix under a misconception of fact and this act of his amounts to an offence as the alleged consent is on the basis of misconception, and the accused raped the prosecutrix. He brazenly raped her for two years or more giving her the false assurance that he would marry her, and as a consequence she became pregnant. For the reasons stated supra, we have to uphold the judgment and order of the trial court in convicting and sentencing the accused for the offence of rape, by reversing the judgment and order of the High Court. We find the respondent-accused guilty of the offence of rape as defined under Section 375 IPC.

22. The answer to Point (iii) is pertaining to the question of sentence awarded by the trial court to the accused. The trial court has justified in awarding of maximum sentence of life imprisonment to the accused under Section 376 IPC on the ground that the facts of this case are of a very grave nature. The accused being related to the prosecution used to often visit her house and took undue advantage of this relationship and kept the prosecutrix under the misconception that he would marry her and committed rape on her for more than two years thereby making her pregnant. In such circumstances, the trial court held that it would be justifiable to award the maximum sentence to the accused. We, therefore, hold that the trial court was correct in awarding the maximum sentence of life imprisonment to the accused as he has committed a breach of the trust that the prosecutrix had in him, especially due to the fact that they were related to each other. He thus invaded her person, by indulging in sexual intercourse with her, in order to appease his lust, all the time knowing that he would not marry her. He committed an act of brazen fraud leading her to believe that he would marry her.

23. A woman’s body is not a man’s plaything and he cannot take advantage of it in order to satisfy his lust and desires by fooling a woman into consenting to sexual intercourse simply because he wants to indulge in it. The accused in this case has committed the vile act of rape and deserves to be suitably punished for it”. Accordingly, the judgment of the trial Court was upheld.

11. From the facts of the case, two aspects emerge. First is regarding the age of the victim. Ext.P9 is proof enough to substantiate the age of the victim. That apart, there is no substantial cross-examination of PW1 and PW2 regarding the veracity of their statement and therefore, taking into account the fact that she was born on 18/7/1993, we have to proceed on the basis that she would have attained the age of 16 years only on 18/7/2009 whereas from the evidence it appears that sexual intercourse started much prior to the same. Therefore, even if it is with consent, it amounts to rape as defined u/s 375 of I.P.C. Hence, we do not find any error being committed by the trial Court in finding the accused guilty. The accused was convicted for the offence of kidnapping. The evidence of PW1 itself is sufficient enough to bring in proof of kidnapping. Court below did not commit any error in arriving at the said finding.

12. Now coming back to the question of punishment, from the evidence, it is rather clear that the sexual intercourse was consensual, but still it amounts to rape as the girl was below the age of 16 years. But it could be seen that they were living as husband and wife over a period of time. Going by the judgment of the Apex Court in Naushad (supra), if the consent of the girl is obtained with the promise that he will marry her, it is not a free consent and the consent even if given, is given under a misconception of fact. That was also a case in which the prosecutrix was given a false assurance that he would marry her. We find from the factual aspects involved in the case that the accused had even cheated the victim's parents and had appropriated about Rs. 2.5 lakhs received from them.

13. This is a case in which a girl under the age of 16 had fell into the trap of a youngster who was 19 years of age. He had threatened that if she does not have sexual intercourse with him, he will commit suicide and under such threatening, he even took her and resided with her for quite a long time. To a certain extent, the girl also wished that he would marry her. But, when she became pregnant, he ditched her. He even appropriated substantial amounts from her family.

14. This is a case in which fraud had been played by the accused on the minor victim girl. She will have to suffer the consequences all through her life, which is irreparable. Therefore, despite the arguments of the learned counsel for the appellant, who sought for reduction of sentence, we are not inclined to do so. Appeal is hence dismissed
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