Rape Case - Consent under fear or misconception is No consent

KERALA HIGH COURT (DB)

Before :- K.A. Abdul Gafoor and R. Basant, JJ.
Crl. A No. 590 of 2000(B). D/d. 20.1.2005.

Joseph @ Baby - Appellants
Versus
S.I. Of Police - Respondent

For the Appellants :- Mr. P.K. Ravisankar, Mr. C. Khalid, Mr. M. Gopinatha Panicker, Mr. P. Viswambharan, Mr. Thomas Mathew (Kottayam), Mr. C.C. Thomas, Mr. B. Raman Pillai, Mr. George Philip, Mr. R. Anil, Mr. Thomas Antony M., Mr. M.N. Sukumaran Nair (Senior), Mr. S. Vijayakumar, Mr. K.P. Dhandapani, Mr. M. Sajgad, Mr. Shaji Thomas Porkattil, Mr. Bichu Kurian Thomas, Mr. Vijayabhanu, Mr. K.C. Peter, Mr. T.A. Shaji, Mr. Dinesh Mathew Murickan, Mr. S. Gopakumaran Nair, Mr. K.A. Hassan, Mr. George Kutty Mathew, Mr. Kennath George, Mr. T.R. Ramachandra Nair, Mr. Dinesh Shenoy and Mr. V.P.K. Panicker, Advocates.
For the Respondents :- Mr. K. Gopalakrishna Kurup, Special Public Prosecutor.
Kerala High Court, Ernakulam Judgments
Cases referred :

Kali Ram v. State of Himachal Pradesh, (1973 SCC (Cri.) 1048).
Deelip Singh @ Dilip Kumar v. State of Bihar, (JT 2004 (9) SC 469).
State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658.
Sudhansu Sekhar Sahoo v. State of Orissa, (2003 Crl.LJ 4920).
Gopi Shanker v. State of Rajasthan, AIR 1967 Rajasthan 159.
Kuldeep K. Mahato v. State of Bihar, (1998) 6 SCC 420.
Jagannivasan v. State of Kerala, (1995 Supp (3) SCC 204).
Jinish Lal Sah v. State of Bihar,
(2003)1 SCC 605.
Vimal Suresh Kamble v. Chaluverapinake Apal S.P., (2003)3 SCC 175.
S.A. Nanjundeswara v. M.S. Varlak Agrotech Pvt. Ltd., AIR 2002 SC 477.
Ashok Kumar v. State of Haryana, AIR 2003 SC 777.
Devendra Das v. State of Bihar, (1999 Crl.LJ 4805).
Jai Bhagwan v. State of Haryana, (1999)3 SCC 102.
State of Orissa v. Arjun Das Agrawal, (1999) 8 SCC 154.
Vemireddy Satyanarayan Reddy v. State of Hyderabad, AIR 1956 SC 379.
Rampal Pithwa Rahidass v. State of Maharashtra, (1994 Crl.LJ 2320).
State of Assam v. Upendra Nath Rajkhowa (1975 Crl.LJ 354).
Arun Kumar Banerjee v. State, AIR 1962 Calcutta 504.
Mani Mohan Ghose v. Emperor, AIR 1931 Calcutta 745.
State of Maharashtra v. Kalu Sivram Jagtap, (1980 SCC(Cri) 946).
State of Punjab v. Ramdev Singh, AIR 2004 SC 1290.
State of Himachal Pradesh v. Shree Kant Shekari, AIR 2004 SC 4404.
Rao Harnarain Singh Sheoji Singh v. State, AIR 1958 Punjab 123.
Uday v. State of Karnataka, AIR 2003 SC 1639.
State of Himachal Pradesh v. Mange Ram, (2000 Crl.LJ 4027).
State of Maharashtra v. Prakash, (1992 Crl.LJ 1924).
Pramod Mahto v. State of Bihar, (1990 SCC (Cri) 206).
Justus v. State of Kerala, (1987(2) KLT 330).
Moijullah alias Puttan v. State of Rajasthan, AIR 2004 SC 3186.
Bhupinder Sharma v. State of Himachal Pradesh, AIR 2003 SC 468.
Bodhisattwa Gautam v. Subhra Chakraborthy (Ms), (1996 SCC(Cri) 133).
Darshan Singh v. State of Punjab, AIR 1983 SC 554.
Vijayabhai Bhanabhai Patel v. Navnitbhai Nathubhai Patel, (2004) SCC(Cri) 2032).
S. Varadarajan v. State of Madras, AIR 1965 SC 942.
Rafiq v. State of U.P., (1980 SCC(Cri) 947).
Surjan v. State of M.P., AIR 2002 SC 476.
Kottaya v. Emperor, AIR 1947 P.C. 67.
Murali v. State of Kerala, 2004(1) R.C.R.(Criminal) 283 : (2003(3) KLT 226).
Sunita Devi v. State of Bihar, AIR 2004 SCW 7116.
Rugmini v. State of Kerala, (1986 KLT 1356).
Noor Khan v. State of Rajasthan, AIR 1964 SC 286.
Shakila Abdul Gafar Khan (Smt.) v. Vasant Raghunath Dhoble, (2003(7) SCC 749).
Dharmarajan v. State of Kerala, 2002(2) KLT 161.
Zahira Habibulla H. Sheikh v. State of Gujarat 2004(4) SCC 158 .

JUDGMENT

Abdul Gafoor, J. - Thirty five accused persons were convicted in S.C. No. 187 of 1999. They have filed the above appeals except Crl.A. No. 877 of 2002. Crl.A. No. 877 of 2002 is by the sole convicted accused in S.C. No. 241 of 2001. At the outset we may mention that the facts relating to both the cases emanate out of the same occurrence of alleged kidnapping, wrongful confining, procuration of a minor girl and rape and gang rape of the victim, PW3, in this case. PW3 was reported missing from 16.1.1996. Initially the case was registered under the caption 'man missing' based on information furnished by PW1, the father of the victim on 16.1.96 itself. For about 40 days, in spite of the investigation conducted by PW82, the local Asst. Sub Inspector, the whereabouts of the girl could not be found out. The girl later appeared in the office of her father PW1 on 26.2.1996. Next day she gave a statement to PW82 revealing information about the commission of cognizable offences including kidnapping, wrongful confinement, procuration of minor girl, rape and gang rape on her. Investigation thereafter proceeded in that line and the investigators came to the conclusion that altogether 45 persons were involved. Two of them could not be traced out. Out of the remaining 43 persons, one was deleted from the array of accused. Two were absconding. Charges were laid against the remaining 40 persons and the case against them was taken on file by the Sessions Court, Kottayam as S.C. No. 187 of 1999. During the trial, the 40th accused died. Accused Nos. 23, 26, 32 and 36 were acquitted. The remaining 35 accused, convicted on different counts of offences have filed the appeals as mentioned, except Crl. A. No. 877 of 2002. During the pendency of these appeals Accused No. 4, the appellant in Crl. A.No. 607 of 2000, committed suicide.
2. After the trial of S.C. No. 187 of 1999 was terminated, one among the absconding accused, viz., Dharmarajan, surrendered. Thereafter his case was also committed. It was tried as S.C. No. 241 of 2001 on the same set of charges. He was also convicted. Crl. A.No. 877 of 2002 is at his instance.
3. In the first case the convicted accused were found guilty of all or any one or more of the offences punishable under Sections 120-B, 363, 365, 366A, 368, 376(1) and 376(2)(g) I.P.C. They have been sentenced to undergo rigorous imprisonment for terms ranging from 4 years to 13 years depending on the offences found proved against them. Sentence of fine and consequent default sentences have also been imposed. Fine, if realised, was directed to be paid to the victim. The appellant in Crl. A. 877 of 2002 was found guilty of the offences punishable under Sections 120-B, 365, 363, 366A, 368, 376(2)(g), 372 and 392 I.P.C. He was sentenced to undergo life imprisonment for the offence punishable under Section 376(2)(g) alone. So, no separate sentence was imposed on any other count.
4. The accused will be described as arrayed in S.C. No. 187 of 1999 and the sole accused in S.C. No. 877 of 2002 will be mentioned by his name Dharmarajan hereafter in this judgment for the sake of convenience. The exhibits, witnesses and MOs, unless otherwise specified, are referred to as in S.C. No. 187 of 1999.
5. The prosecution case is that PW3, as a result of a conspiracy hatched by accused Nos. 1, 2 and Dharmarajan, was persuaded, induced and kidnapped by accused No. 1 from the lawful guardianship of her parents to go away from the school hostel in Munnar to join him at Adimali and thereafter to go along with him to Kothamangalam at about 4.30 P.M.. on 16.1.1996. Before reaching there, he disappeared. In such perplexed situation, late in the evening at about 7.30 P.M. PW3 decided to go from Kothamangalam to her mother's sister's house at Kottayam. She boarded a private bus to Muvattupuzha. She noticed accused No. 2, Usha, in that bus. Thereafter she alighted at Muvattupuzha and went in an autorickshaw to K.S.R.T.C. bus station there, to catch a bus to Kottayam. She boarded a Trivandrum Fast Passenger bus wherein also she noticed the presence of accused No. 2. She got down at Kottayam bus stand. She was frightened to go through the bylanes to reach her aunt there. Therefore she decided to catch a bus to Mundakkayam so as to go to her uncle's house. But there was no bus to Mundakkayam during that night. It was at that time, accused No. 2 approached her calling her name. Later she introduced PW3 to one person by name Sreekumar, whom she later realised as Dharmarajan. He promised to take her to Mundakayam. Thereafter Dharmarajan took her to Metro lodge near the bus stand where, he told her, his mother was staying. With the hope that she would be taken to her uncle's house at Mundakayam, she followed Dharmarajan. But Dharmarajan raped her during that night in the lodge room. On the next day morning she was taken to Ernakulam in a transport bus and thereafter to different places like Kumali, Kambam, Palakkad and Vanimel at Kozhikode, again to Kumali, Muvattupuzha, Aluva, Theni, Kanyakumari, Trivandrum, Kuravilangad, Kottayam, again to Kumali, Muvattupuzha and again to Kottayam, still again to Theni, Kumali, Kambam, again to Kumali, Kottayam and to Muvattupuzha and finally enfreed her on the morning of 26.2.1996. In the meantime she was presented to several persons including the appellants/convicted accused, except accused Nos. 2, 17, 38 and 39, who committed rape or gang rape on her. The said four persons, according to the prosecution, aided others to commit the said offences. They also wrongfully confined her. PW3 had, as admitted by both sides, crossed the age of 16, but had not attained 18 years, at the relevant time.
6. The evidence in the first case consists of the oral testimony of PWs.1 to 97 and Exts.P1 to P182 and MOs.1 to 21 on the side of the prosecution. The defence evidence consists of the oral evidence of DWs 1 to 10 and Exts.D1 to D30. PWs 1 to 57 were examined and Exts.P1 to 102 were marked on the side of the prosecution in the latter case. MOs 1 to 21 were also identified. The defence evidence in that case consists of the oral testimony of DWs 1 to 6 and Exts.D1 to D43, apart from the witnesses' exhibits 1 to 40 and court exhibit C1. The court below considered the evidence on record and convicted the accused as mentioned above.
7. When we scanned through the evidence we could understand that several new materials could be brought out by the accused to strengthen their defence, in the second case. On going through the said evidence we are also convinced that few of such pieces of evidence could be used by the accused in the first case as well, for the purpose of their effective defence. Accordingly, as these cases arise out of the same occurrence, we are of the view that the evidence in both the cases can be considered together for the purpose of finding the truth in this case. Whatever available in these cases in favour of the accused shall be made use of in their favour, irrespective of where it was let in, but not vice versa.
8. It is contended by the appellants that they have been falsely implicated in the case due to political enmity. Few of them are political workers or interested in politics. There are others also who are not involved in politics. Sufficient materials have not been placed by the accused to show that they have been thus falsely implicated with political motive. There is nothing to show that any of the accused was holding any such position of eminence politically or to justify an inference that they were implicated falsely on political considerations.
9. It is submitted by the appellants that no conspiracy is proved in this case. There is no cogent evidence in that regard. On the other hand the letter said to be written by PW3 to DW3 in the second case which has been suppressed by the prosecution will cut at the root of the allegation of conspiracy, it is contended.
10. The other contention raised is that there is no reliable evidence in this case to act upon and enter conviction for serious offences as mentioned above. The only material and vital evidence available is that of PW3, who cannot be reckoned as a trustworthy witness. Her evidence deserves careful scrutiny, because of her past conduct of squandering the amount given by her parents for remitting hostel fees and even daring, admittedly, to pledge her ornaments on 1.1.1996. Certain other aspects were also brought to our notice to elucidate this contention.

11. It is further contended that even if PW3 is found to be believable otherwise, a conjoint reading of her evidence in toto will show that she was not an unwilling partner for intercourse. So far as the accused are concerned, there was no resistance from her part, so that those who approached her could discern that she was not willing for intercourse or there was absence of consent from the part of PW3. Absence of consent on the part of PW3 has not been satisfactorily proved in this case to bring home the guilt of the accused under Section 376(1) or 376(2)(g). It is further contended that the unwillingness now spoken to by PW3 before the court below is really an excuse found out by her to save her face in the family and among the relatives for her long absence of 40 days from her house. It is further submitted that the normal approach adopted for appreciating the evidence of a rape victim cannot be applied in this case, taking into account the incidents occurred in those 40 days. Therefore, the court should always seek corroboration for the evidence of PW3 before finding the accused guilty of the offences under Sections 376(1) or 376(2)(g). In this regard the counsel for the appellants have relied on the decisions reported in Kali Ram v. State of Himachal Pradesh (1973 SCC (Cri.) 1048), Deelip Singh @ Dilip Kumar v. State of Bihar (JT 2004 (9) SC 469), State of Maharashtra v. Chandraprakash Kewalchand Jain, AIR 1990 SC 658, Sudhansu Sekhar Sahoo v. State of Orissa (2003 Crl.LJ 4920), Gopi Shanker and ors. v. State of Rajasthan, AIR 1967 Rajasthan 159, Kuldeep K. Mahato v. State of Bihar (1998) 6 SCC 420), Jagannivasan v. State of Kerala (1995 Supp (3) SCC 204), Jinish Lal Sah v. State of Bihar (2003) 1 SCC 605), Vimal Suresh Kamble v. Chaluverapinake Apal S.P. & anr. (2003) 3 SCC 175) and S.A. Nanjundeswara v. M.S. Varlak Agrotech Pvt. Ltd., AIR 2002 SC 477. The consent is thus discernible from the conduct of PW3; submit the appellants' counsel. No rape punishable under Section 376(1) is proved.
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201. In the fiercely consumerist society that we live in, a young girl child is also exposed to so many temptations that it is difficult for the child which has not been groomed in proper atmosphere with a proper value system inculcated in it, to resist such temptations. Such children can be termed deviants but cannot be merely condemned and left to their fate . They too deserve the sympathy of the system as it is no crime of theirs that they are born and forced to grow up in such atmosphere. It is the duty of the secular state to give the requisite education to instill a proper value system in such future citizens. That must be reckoned as the incident of the constitutional obligation of the State to give free primary education. That obligation cannot be relegated by the State to religious or optional institutions. They too deserve the protection of the law against unintelligent, imprudent and immoral consent being extracted from them at that early age. No one should be permitted by law to rely on such alleged consent given by a minor aged less than 18 years, the fond child of law and equity. I may sum up by stating that raising the age of consent for sexual intercourse to 18 consistent with the stipulations in the saner subsequent enactments appears to be the unavoidable imperative before the system. At least the Kerala Legislature must take bold efforts to bring in suitable local amendments to Section 375 of the Indian Penal Code and give leadership to others.
202. Making of the law in a democratic polity is an agonisingly slow process. The needs of the society have to be perceived by the polity. Opinion makers have to perceive the need. Public opinion has to be generated, Such public opinion must get expressed on the floor of the legislature and must get translated into legislative action. Legislative stipulations have to be enforced by the executive and interpreted by the adjudicators. It is only then that relief is ultimately enjoyed by the polity.
203. Wait, we must. But the process has to start here and now. Such unfortunate incidents like the one in this case, which seem to be too frequent in the Kerala scenario of late, should not be viewed merely as god sent opportunities for improving stakes in the electoral battles to follow. They must make the enlightened polity aware of the need for changes in the law. Meaningful discussions must be aroused. Observations by courts may help to accelerate the pace of the march towards ideal laws. The purpose of this added note is just that.

Order accordingly.
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