IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

MONDAY, THE 19TH DAY OF AUGUST 2019 / 28TH SRAVANA, 1941

CRL.A.No.147 OF 2015

AGAINST THE JUDGMENT IN SC 7/2012 DATED 29-10-2014 OF
ADDITIONAL DISTRICT SESSIONS COURT (FOR THE TRIAL OF CASES
RELATING TO ATROCITIES SEXUAL VIOLENCE AGAINST WOMEN AND
CHILDREN, ERNAKULAM

AGAINST THE ORDER/JUDGMENT IN CP 126/2010 OF JUDICIAL
MAGISTRATE OF FIRST CLASS – I, NORTH PARAVUR

CRIME NO.227/2010 OF Varappuzha Police Station, Ernakulam

APPELLANT/ACCUSED:
JOMON @ ROCKY
AGED 21 YEARS
S/O.THOMAPPAN, KOOTTAKKAL HOUSE, KUNTHALAMPARA
KARA, KATTAPPANA VILLAGE, IDUKKI DISTRICT.

BY ADVS.
SRI.RENJITH B.MARAR
SMT.RESHMI JACOB
SRI.P.B.SUNEER
RESPONDENT/COMPLAINANT:

STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM-682 031.

SMT. S AMBIKADEVI SPL PP FOR ATTROCITIES AGAINST
WOMEN CHILDREN

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-
06-2019, THE COURT ON 19-08-2019 PASSED THE FOLLOWING:
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“C.R.”

JUDGMENT

Shaffique, J.

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 `25,000/- for offence u/s

376 of SectionI.P.C. and to undergo rigorous imprisonment for 7 years

and to pay a fine of `25,000/- for the offence u/s 366 of SectionI.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
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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
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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 pregnant, 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 10 th 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
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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
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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 `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 `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
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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 `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
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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 cross-

examination 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 `30,000/- for his sister’s marriage which was refused

by PW1’s parents, he did not come back. The prosecution case is
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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
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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 SectionJarnail

Singh v. State of Haryana [(2013) 7 SCC 263] and then in

SectionMahadeo v. State of Maharashtra [(2013) 14 SCC 637] had
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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

SectionProtection 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
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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
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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 SectionState 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 SectionI.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
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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)
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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. SectionIn 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
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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
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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
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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”.

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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 SectionI.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
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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 `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
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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.

Sd/-

A.M.SHAFFIQUE

JUDGE

Sd/-

N.ANIL KUMAR

Rp //True Copy// JUDGE

PS to Judge