Man acquitted as Consensual sex with difference in opinion turned into Rape Case: Kerala HC 2017

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR. JUSTICE P.UBAID

FRIDAY, THE 13TH DAY OF JANUARY 2017/23RD POUSHA, 1938

CRL.A.No. 578 of 2012 ()
————————-
AGAINST THE JUDGMENT IN SC 125/2010 of ADDL.SESSIONS
COURT (ADHOC)-II, ERNAKULAM DATED 21-04-2012

APPELLANT/ACCUSED :-
———————–

RATHEESH, AGED 31,
S/O. RAMACHANDRAN,
PANAYACKYAPPADAM HOUSE,
KUTHAPPADY TEMPLE,
PONNURUNNI KARA,
PONNURUNNI VILLAGE.
BY ADVS.SRI.C.P.UDAYABHANU
SRI.S.VISHNU (TRIPUNITHURA)

RESPONDENT/COMPLAINANT :-
—————————

STATE OF KERALA, REPRESENTED BY
THE PUBLICE PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
R BY SRI.C.S.HRITHWIK, PUBLIC PROSECUTOR

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13-01-2017, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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P.UBAID, J.
============================
Crl.Appeal No.578 of 2012
============================
Dated this the 13th day of January, 2017

JUDGMENT

The appellant herein challenges the conviction

and sentence against him under Section 376 IPC in

S.C.No.125 of 2010 of the Court of Session, Ernakulam. The

prosecutrix who made complaint in this case is a well

educated lady aged 27 years.

2. The prosecution case is that under a false

promise that he would marry her, the accused enticed the

prosecutrix, took her to a hotel at Ernakulam where he

subjected her to sexual intercourse at a room with force, and

thereafter on three occasions at her residence also he thus

subjected the lady to sexual intercourse on a promise that

he would marry her. It is alleged that when he retracted from

the promise, the prosecutrix made an attempt to commit

suicide on 03.04.2008, and she made complaint alleging

rape on 04.08.2008. The complaint was filed before the

Crl.Appeal No.578 of 2012 2

Judicial First Class Magistrate’s Court-I, Ernakulam. The

learned Magistrate forwarded the complaint for investigation

under Section 156(3) Cr.P.C. The police registered the crime,

and after investigation submitted final report under Sections

420, 376, and 306 IPC.

3. The accused appeared before the learned

Additional Sessions Judge (Adhoc-II), Ernakulam, and pleaded

not guilty to the charge framed against him under Sections

420, 376 and 306 IPC. The prosecution examined eight

witnesses including the prosecutrix, and proved Exts.P1 to

P13 documents. When examined under Section 313 Cr.P.C.,

the accused denied the incriminating circumstances, and

projected a defence that this is a false case foisted against

him due to despair in love. Alternatively, the defence also

projected a defence of consent. No oral evidence was

adduced by the accused in defence, but Exts.D1 to D4 were

proved. These documents include a letter written by the

prosecutrix to one Meera, who was later proposed to the

accused, and also an e-mail communication sent by the

prosecutrix to the accused after the complaint was filed. On

Crl.Appeal No.578 of 2012 3

an appreciation of the entire evidence, the trial court found

the accused guilty under Section 376 IPC. On conviction, he

was sentenced to undergo simple imprisonment for seven

years, and to pay fine of Rs.10,000/- by judgment dated

21.04.2012. Aggrieved by the said judgment of conviction,

the accused has come up in appeal.

4. On hearing both sides, and on a perusal of

the entire materials including the deposition given by the

prosecutrix and also, the Exts.D1 and D4 documents

admitted by her during trial, I find the defence version is

acceptable, that whatever transpired between the

prosecutrix and the accused was purely consensual.

Ofcourse, the prosecutrix examined as PW1 has given

evidence in tune with the allegations made in the Ext.P1

complaint. An analysis of the evidence given by the lady will

show that the lady had intercourse with the accused on

many occasions at her residence. Even a common lady or an

uneducated lady cannot be deceived more than once or

twice on a promise of marriage. PW1 is a well educated lady

having a degree in Engineering. It is quite unbelievable that

Crl.Appeal No.578 of 2012 4

she could be easily deceived on a marriage promise on many

occasions. Admittedly, three or four such instances were at

her residence, when her parents were away. Much probe is

not required in this case to find that the sexual intercourse

which the prosecutrix had with the accused on many

occasions at her house was with her consent.

5. The Ext.D1 is a letter written by the victim to

the lady proposed in marriage to the accused before the

filing of the Ext.P1 complaint. This letter will show clearly

that she had an illicit affair with the accused, and as part of

this affair and unholy union, she had sexual intercourse with

him on many occasions. Consent for sexual intercourse is

well discernible from the Ext.D1 letter admitted by the

prosecutrix. Ext.D4 is the e-mail communication sent by the

prosecutrix to the accused after the filing of the Ext.P1

complaint. During trial she very well admitted the

authorship of the communication, and also the contense

therein. This will show that she was not in fact taken to any

hotel room, as she would allege in the complaint, and that

she happened to make a complaint, and even give statement

Crl.Appeal No.578 of 2012 5

during investigation only as instructed or tutored by her

counsel. The Ext.D4 communication will convincingly and

unearthingly prove that the intimacy or affair between the

prosecutrix and the accused was really illicit and unholy, and

that as part of this affair, she had submitted herself to him

on many occasions with full consent and will. However,

when some difference of opinion cropped up, or when the

accused retracted from the affair for reasons known to them

alone, she made a complaint alleging rape. I am well

satisfied by the Ext.D1 and D4 documents that if at all the

prosecutrix had any sexual union with the accused once, or

more than once, it was with her full consent, as part of her

unholy union with him. It appears that after the accused

retracted, and decided to marry one Meera, the prosecutrix

tried all ways possible to dissuade him and Meera, and when

she failed in her attempt, she made a complaint alleging

rape. In the Ext.D4 communication sent through e-mail she

has even stated that she would come to court and tell the

court that she was not in any manner sexually abused and

exploited by the accused, that she was not at any time taken

Crl.Appeal No.578 of 2012 6

to any hotel, and that her union with him was with full

consent. On an appreciation of the entire evidence including

the Ext.D1 and D4 documents admitted in clear terms by the

prosecutrix, I find that this is a clear case of consent, and

that the sexual intercourse was not at any time vitiated by

any false promise. In the above circumstances, a conviction

under Section 376 IPC is not possible at all. I find that the

accused was wrongly found guilty by the court below.

In the result, this appeal is allowed. The appellant

is found not guilty of the offence under Section 376 IPC, and

accordingly, he is acquitted of the said offence in appeal

under Section 386(b)(i) Cr.P.C. The conviction and sentence

against him in S.C.No.125 of 2010 of the court below will

stand set aside, and the bail bond, if any, executed by him

will stand discharged.
Sd/-
P.UBAID,JUDGE
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//TRUE COPY//
P.A. TO JUDGE
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