IN THE HIGH COURT OF KERALA AT ERNAKULAM
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
RATHEESH, AGED 31,
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:
Crl.Appeal No.578 of 2012
Dated this the 13th day of January, 2017
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 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 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 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 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 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.