KAINI RAJANversusSTATE OF KERALA

                        [2013] 10 S.C.R. 196


A                           KAINI RAJAN
                                  v.
                        STATE OF KERALA
                 (Criminal Appeal No.1467 of 2013)
                       SEPTEMBER 19, 2013
B
         [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

         Penal Code, 1860 - s.376 - Rape - Allegation that
    appellant raped PW2 - PW2 had previous acquaintance with
C   appellant, he being her elder brother's friend - Conviction of
    appellant by Courts below - Propriety - Held: The alleged
    incident occurred early morning at 8.30 AM and the place of
    the alleged incident was on the side of a public road - If PW2
    had made any semblance of resistance or made any hue and
D   cry it would have attracted large number of people from the
    locality - Further the FIR was lodged 10 months after the
    alleged incident- All these factors cast some shadow of doubt
    on the version of PW2 - Further, strange behaviour of the
    parents of PW2 viz. PW3 and PW4 - They stated that they
E   came to know about the relations between the appellant and
    PW2 when they found her pregnant - PW2 had told them that
    appellant had agreed to many her - They knew the appellant
    and his family already, however, they did not approach the
    appellant or his family members formarrying PW2 - Instead
F   they straightaway went to the police station to lodge the report,
    that too after the birth of the child - All these factors cast a
    doubt on the prosecution version - Version of a rape victim
    commands great respect and acceptability, but, if there are
    some circumstances which cast some doubt in the mind of
G   the court about the veracity of the victim's evidence, then, it
    is not safe to rely on the uncorroborated version of the victim
    of rape - Conviction and sentence imposed on the appellant
    accordingly set aside.


H                                 196
          KAINI RAJAN v. STATE OF KERALA                197


     Penal Code, 1860 - s. 375 - Rape - Consent - Meaning      A
of

     According to the prosecution, in the morning when
PW2 was proceeding to the Khadi Centre from her house,
the accused-appellant, a friend of her brother, caught         8
hold of her by hand and forcibly took her to a nearby
compound and committed rape on her, without her
consent. She tried to make a hue and cry, but was
silenced by the accused by stating that he would marry
her. Even after this incident, he had sexual relationship      C
with her 'on more than one occasion. PW2, later, became
pregnant and gave birth to a boy. Appellant not only did
not kept his promise to marry her, but even disputed the
paternity of the child. PW2 then lodged a complaint" in
Police Station.
                                                               D
    PW2 deposed that she had previous acquaintance
with the appellant, he being her brother's friend. As per
her version, on few occasions there were sexual
encounters between the parties, after the first alleged
incident. She accepted that they were consensual and           E
she was a willing party, though she did so on the
promise of the appellant that he would marry her. In
respect of these subsequent acts between the parties,
the appellant was charged with the offence under Section
417 IPC. In regard to the first incident, the appellant was    F
charged under Section 376 IPC, as the prosecution case
was that it was forcible and without the consent of PW2.

       The trial Court acquitted the appellant of the charge
  under Section 417 IPC, but convicted him under Section
  376 IPC and sentenced to him undergo rigorous                G
. imprisonment for seven years. The High Court upheld the
  order of conviction and sentence, and therefore the
  instant appeal.

     Allowing the appeal, the Court                            H
    198     SUPREME COURT REPORTS             [2013] 10 S.C.R.


A      HELD:1. Section 375 IPC defines the expression
  "rape". "Consent", for the purpose of Section 375,
  requires voluntary participation not only after the exercise
  of intelligence based on the knowledge of the
  significance and moral quality of the act but after having
B fully exercised the choice between resistance and assent.
  Whether there was consent or not, is to be ascertained
  only on a careful study of all relevant circumstances.
  [Para 12] [203-F; 204-A-C]

C      State v. Mango Ram (2000) 7 SCC 224: 2000 (2) Suppl.
    SCR 626 - relied on.
       2.1. The consistent version of PW2, her mother
  (PW3), and her father (PW4) is that PW2 had previous
  acquaintance with the accused being her elder brother's
D friend for a period of more than two years before the date
  of incident. The place of the alleged incident and the time
  is very crucial, so for as this case is concerned. It was
  early morning at 8.30 AM and the place of the alleged
  incident was on the side of a public road. If she had made
E any semblance of resistance or made any hue and cry it
  would have attracted large number of people from the
  locality. Further the first information report was lodged
  after a period of 10 months of the alleged incident. All
  these factors cast some shadow of doubt on the version
F of PW2. [Para 18] [206-C-E]

        2.2. Behaviour of the parents of PW2 viz. PW3 and
   PW4 also appears to be strange. On their evidence they
   stated that they came to know about the relations
   between the appellant and PW2 when they found her
-G pregnant. PW2 had told them that the appellant had
   agreed to marry her. They knew the appellant and his
   family already. However, there is not even a whisper that
   they approached the appellant or his family members for
   marrying PW2. They straightaway went to the police
 H station to lodge the report, that too after the birth of the
         KAINI RAJAN v. STATE OF KERALA                  199


child. All these. factors cast a doubt on the prosecution       A
version. The version of victim, in rape commands great
respect and acceptability, but, if there are some
circumstances which cast some doubt in the mind of the
court of the veracity of the victim's evidence, then, it is
not safe to rely on the uncorroborated version of the           B
victim of rape. [Para 19) [206-F-H; 207-A]

      Dee/ip Singh alias Dilip Kumar v. State of Bihar (2005)
 1 SCC 88: 2004 (5) Suppl. SCR 909; Ramdas and Others
 v. State of Maharashtra (2007) 2 SCC 170; Vijayan v. State     C
.of Kera/a (2008) 14 SCC 763; K. P. Thimmappa Gowda v.
 State of Kamataka (2011) 14 SCC 475: 2011 (4) SCR 200 -
 referred to .

   . 3. The trial Court as well as the High Court committed
an error in holding that the accused-appellant is guilty of     D
the offence punishable under Section 376 IPC. In such
circumstances, the conviction and sentence imposed on
the appellant is set aside. [Para 20] [207-A]
                     Case Law Reference:
                                                                E
     2000 (2) Suppl. SCR 626 relied on             Para 12
     2004 (5) Suppl. SCR 909 referred to           Para 14
     (2001) 2 sec 110           referred to        Para 15
                                                                F
     (2008) 14 sec 763          referred to        Para 16
     2011 (4) SCR 200           referred to       Para 17
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1467 of 2013.                                               G
    From the Judgment & Order dated 13.07 .2009 of the High
Court of Kerala at Ernakulam in Crl. Appeal No. 1139/2003.

     E.M.S. Anam for the Appellant.
                                                                H
    200      SUPREME COURT REPORTS               [2013] 10 S.C.R.


A      'K.K. Sudheesh (for Jogy Scaria) for the Respondent.

          The Judgment of the Court was delivered by

          K.S. RADHAKRISHNAN, J. 1. Leave granted.

B       2. This appeal has been filed by the accused who was
    convicted for an offence punishable under Section 376 IPC and
    sentenced to undergo Rigorous Imprisonment for seven years.
    Facts leading to this appeal are as follows:

C        3. PW2, the prosecutrix, was employed in a Khadi Centre,
  . Kayoor and residing at Arakachal along with her parents,
    brothers and sisters. According to the prosecution, on
    17.9.1997 at about 8.30 AM, when she was proceeding to the
    Khadi Centre from her house, the accused, a friend of her
    brother, caught hold of her by hand and forcibly took her to the
D nearby property of one Karunakaran and committed rape on
    her, without her consent. She tried to make a hue and cry, but
    was silenced by the accused by stating that he would marry her.
    Even after this incident, he had sexual relationship with her on
    more than one occasions.
E
         4. PW2, later, became pregnant and gave birth to a boy
    on 24.6.1998 in the Government Hospital, Payyannur. Accused
    not only not kept his promise to marry her, but even disputed
    the paternity of the child. PW2 then lodged a complaint on
F 26. 7.1998 before the Assistant Sub-Inspector of Police,
    Cheemeni Police Station and on the basis of that complaint,
    police registered Crime No, 64of1998. After investigation, the
    police filed a report charging offences under Sections 376 and
    417 IPC against the accused. The case was tried by the
G Additional Sessions Judge, Kasaragod. From the side of the
    prosecution, PWs1 to 8 were examined and Exh. P1-P4 were
    marked. When questioned under Section 313 Cr.P.C., the
    accused denied all incriminating evidence.

       5. PW2 deposed that she had previous acquaintance with
H the accused being his brother's friend. But, on the date of the
         KAIN! RAJAN v. STATE OF KERALA                      201
             [K.S. RADHAKRISHNAN, J.]
incident, even though she made a hue and cry, she was                A
threatened and told not to disclose the incident to anybody and
also made to believe that he would marry her. PW3, mother of
PW2, as well as PW4, the father, deposed that they came to
know of the incident only when PW2 became pregnant and only
after the delivery of the child they approached the police station   B
to lodge a complaint.

     6. The trial Court after appreciating the evidence took the
view that subsequent contact of the parties cannot be taken as
a ground to infer consent for the incident, which occurred in        C
August 1997. The trial Court also noticed that the accused had
spoiled the future of PW2 and disputed the paternity of the child
and he cannot escape on the loophole of consent. The trial
Court, however, found nothing to attract Section 417 IPC, but
convicted the accused under Section 376 IPC and sentenced
to him undergo rigorous imprisonment for seven years, together       D
with a fine of Rs.25,000/- with default clause.

     7. The accused took up the matter in appeal before the
High Court in Criminal Appeal No. 1139 of 2003. The High
Court noticed that both in the chief-examination as well as in       E
the cross-examination PW2 has stated that the initial sexual act
was without her consent, and though she tried to resist, she was
threatened that she would be killed and that the accused
promised that he would marry her. PW2, according to the High
Court, had no reason or motive to falsify the accused and there      F
is no reason to disbelieve version of PW2 regarding the
paternity of the child. The High Court upheld the order of
conviction and sentence awarded by the trial Court and
dismissed the criminal appeal, against which this appeal has
been filed.
                                                                     G
     8. We may indicate that from the reading of the judgments
of the Trial Court as well as the High Court, it becomes clear
that even as per the version of the prosecutrix, on few occasions
there were sexual encounters between the parties, after the first
allegd incident in 1997. She accepted that they were                 H
    202      SUPREME COURT REPORTS               [2013] 10 S.C.R.


A consensual and she was a willing party, though she did so on
  the promise of the appellant that he would marry her. In respect
  of these subsequent acts between the parties, the appellant
  was charged with the offence under Section 417 IPC but
  exonerated by the trial Court itself. The conviction is related to
B the first incident which is treated as rape, believing the
  prosecution version that it was forcible and without the consent
  of the prosecutrix. Entire case is to be examined on this limited
  aspect.

       9. Shri E.M.S. Anam, learned counsel appearing for the
C appellant, submitted that it is evident from the FIR as well as
  the evidence of PW2 that grievance of PW2 was mainly against
  the breaking of the promise of marriage alleged to have been
  made by the accused and there is absolutely no independent
  evidence to show that the alleged sexual act, stated to have
D been committed on 17.9.f997 was without her consent.
  Learned counsel also submitted that absence of injuries on
  PW2 and the accused, would rule out forcible intercourse
  without consent. If she had made any hue and cry, that would
  have been heard by the neighbours of the locality and none was
E examined by the prosecution. Learned counsel submitted that
  the very fact that no one had seen the incident or heard any
  hue or cry for help, it has to be presumed that no such incident
  had occurred, as alleged by the prosecution. Learned counsel
  also submitted that there is a considerable delay in lodging the
F FIR and also no DNA test was conducted even after the
  accused had disputed the paternity of the child. Learned
  counsel also submitted that the conviction is only based on the
  testimony of PW2 which cannot be relied on in the absence of
  any corroboration, especially in the facts and circumstances of
G the present case.

       10. Shri K. K. Sudheesh, learned counsel appearing for
  the State, on the other hand, contended that there is no reason
  to disturb the findings recorded by the trial Court, affirmed by
  the High Court. Learned counsel submitted that, in a case of
H this nature, it is difficult to get any direct evidence or eye-
         KAINI RAJAN v. STATE OF KERALA                      203
             [K.S. RADHAKRISHNAN, J.]
witnesses, especially when PW2 has stated that on the date           A
of the incident, even though she tried to resist, she was
threatened that she would be killed and that the accused had
promised to marry her. Learned counsel pointed out that the
evidence of PW2 that the first sexual act was committed by the
accused without her consent, can be accepted safely even             B
without any corroboration.

      11. We have three crucial witnesses in this case. The first
and foremost is the prosecutrix herself. We have gone through
her evidence with great care. She has stated in her cross-           C
examination that the accused used to come to her house to
meet her elder brother, quite often. In the cross-examination
al_so, she has deposed that the accused used to come to her
house frequently since tWo to three years prior to the date of
the incident and that she used to talk to the accused. PW3,
mother of PW2, has also deposed in the cross-examination that        D
the accused is her son's friend. PW4, father of PW2, has also
deposed that the accused is the friend of his son. Evidence of
PW2 to PW4 would, therefore, clearly indicate that the accused
was having close acquaintance with the family of PW2 and he
was not a stranger to her on the date of the incident.               E

     12. Section 375 IPC defines the expression "rape", which
indicates that the first clause operates, where the woman is in
possession of her senses, and therefore, capable of consenting
but the act is done against her will; and second, where it is done   F
without her consent; the third, fourth and fifth, when there is
consent, but it is not such a consent as excuses the offender,
because it is obtained by putting her on any person in whom
she is interested in fear of death or of hurt. The expression
"against her will" means that the act musfhave been done in          G
spite of the opposition of the woman. An inference as to
consent can be drawn if only based on evidence or probabilities
of the case. "Consent" is also stated to be an act of reason
coupled with deliberation. It denotes an active will in the mind
of a person to permit the doing of an act complained of.
                                                                     H
    204     SUPREME COURT REPORTS                 (2013] 10 S.C.R.


A Section 90 IPC refers to the expression "consent". Section 90,
  though, does not define "consent", but describes what is not
  consent. "Consent", for the purpose of Section 375, requires
  voluntary participation not only after the exercise of intelligence
  based on the knowledge of the significance and moral quality
B of the act but after having fully exercised the choice between
  resistance and assent. Whether there was consent or not, is
  to be ascertained only on a careful study of all relevant
  circumstances. (See State v. Mango Ram (2000) 7 SCC 224]

       13. We are, in this case, concerned with a situation where
C the incident alleged to have occurred at 8.30 AM in day light
  and at a place near the compound of one Karunakaran, not
  within the four walls of a house or a building. Accused was not
  a stranger. The The prosecutrix had previous acquaintance with
  the accused or else in all probability she would have resisted
D forcefully, attracting passersby or people from the
  neighbourhood. She has stated that she was threatened and
  made to believe that the accused would marry her. She later
  became pregnant and delivered a child, and the paternity of the
                                                            a
  child is disputed by the accused. FIR was lodged after period
E of 10 months from the date of incident.

        14. This Court examined the scope of Section 375 IPC in
  a case where the facts have some resemblance with the one
  in hand. Reference may be made to the judgment of this Court
F in Deelip Singh alias Dilip Kumar v. State of Bihar (2005) 1
  sec 88. In that case, this Court examined the meaning and
  content of the expression "without her consent" in Section 375
  IPC as well as whether the consent given by woman believing
  the man's promise to marry her, is a consent which excludes
G the offence of rape. This Court endorsed the principle that a
  misrepresentation as regards the intention of the person
  seeking consent, i.e. the accused, could give rise to the
  misconception of fact. While applying this principle to a case
  arising under Section 375 IPC, this Court held that the consent
  given pursuant to a false representation that the accused
H
         KAINI RAJAN v. STATE OF KERALA                      205
             [K.S. RADHAKRISHNAN, J.]
intends to marry, could be regarded as consent given under           A
misconception of fact. But a promise to marry without anything
more will not give rise to "misconception of fact" within the
meaning of Section 90 IPC. This Court further held that if, on
facts, it is established that at the very inception of the making
of promise the accused did not really entertain the intention of     B
marrying her and the promise to marry held out by him was a
mere hoax, the consent ostensibly given by the victim will be
of no avail to the' accused to exculpate him from the ambit of
the second clause of Section 375 IPC. In the facts of that case,
this Court held, that the predominant reason which weighed with      c
het in agreeing for sexual intimacy with the accused was the
hope generated in her of the prospect of marriage with the
accused. The Court held that she came to the decision to have
a sexual affair only after being convinced that the accused
would marry her and it is quite clear from her evidence, which       0
is in tune with her earlier version given in the first information
report. The Court noticed that she was fully aware of the moral
quality of the act and the inherent risk involved and that she
considered the pros and cons of the act.

     15. In Ramdas and Others v. State of Maharashtra (2007)         E
2 sec 170, this Court held that the conviction in case of rape
can be based solely on the testimony of the prosecutrix, but that
can be done in a case where the Court is convinced about the
truthfulness of the prosecutrix and there exist no circumstances
which cast a shadow of doubt over her veracity.                      F

      16. Vijayan v. State of Kera/a (2008) 14 SCC 763 was a
case where the complaint was made by the prosecutirx after
the alleged commission of rape on her by the accused. At the
time of making the case, the prosecutrix was pregnant for about      G
seven months. This Court did not place reliance on the sole
testimony of the prosecutrix. The Court noticed that flaw that no
DNA test was conducted to find out whether the child was born
out of the said incident and the accused was responsible for
the said child.
                                                                     H
    206      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A      17. K. P. Thimmappa Gowda v. State of Kamataka (2011)
  14 SCC 475, was a case where the accused had assured the
  prosecutrix that he would marry her and had sexual affair, which
  was repeated on several occasions as well. But he did not
  marry and she became pregnant.· That was a case where there
B was delay of eight months in filing the complaint. The accused
  was given the benefit of doubt holding that it would not be
  possible to conclude that the alleged sexual act was committed
  without the consent of the prosecutrix.

C      18. We have already referred to the evidence of PW2 to
  PW4 and that their consistent version is that PW2 had previous
  acquaintance with the accused being her elder brother's friend
  for a period of more than two years before the date of incident.
  The place of the alleged incident and the time is very crucial,
  so for as this case is concerned. It was early morning at 8.30
D AM and the place of the alleged incident was on the side of a
  public road. If she had made any semblance of resistance or
  made any hue and cry it would have attracted large number of
  people from the locality. Further the first information report, as
  already indicated, was lodged after a period of 10 months of
E the alleged incident. All these factors cast some shadow of
  doubt on the version of PW2.

       19. Behaviour of the parents of the prosecutirix viz. PW3
  and PW4 also appears to be strange. On their evidence they
F stated that they came to know about the relations between the
  appellant and the prosecutrix when they found her pregnant.
  Prosecutrix had told them that the appellant had agreed to marry
  her. They knew the appellant and his family already. However,
  there is not even a whisper that they approached the appellant
G or his family members for marrying the prosecutrix. They
  straightaway went to the police station to lodge the report, that
  too after the birth of the child. All these factors cast a doubt on
  the prosecution version. The version of victim, in rape
  commands great respect and acceptability, but, if there are
  some circumstances which cast some doubt in the mind of the
H
          KAINI RAJAN v. STATE OF KERALA                        207
              [K.S. RADHAKRISHNAN, J.]
court of the veracity of the victim's evidence, then, it is not safe   A
to rely on the uncorroborated version of the victim of rape.

     20. The trial Court as well as the High Court has committed
an error in holding that th~ accused is guilty of the offence
punishable under Section 376 IPC. In such circumstances, we
                                                                       8
are inclined to allow this appeal and set aside the conviction
and sentence imposed on the appellant and order accordingly.

B.B.B.                                            Appeal allowed.