Case: Vinod Kumar Vs. State Of Kerala

the Appellant was already married and nevertheless she was willing to enter into a relationship akin to marriage with the Appellant, albeit, in the expectation that he may divorce his wife. Sixthly, the prosecution should have investigated the manner in which the prosecutrixs uncle came into possession of the Appellants marriage photograph, specially since it is his defence that he had given the photograph to the prosecutrix when she had insisted, on the threat of suicide, that they should marry each other. The Appellant has also stated that this photograph had been entrusted to Fathima, on the prosecutrixs own showing, was her confidant. Again, for reasons that are unfathomable, the prosecution has not produced these witnesses, leading to the only inference that had they been produced, the duplicity in professing ignorance of the Appellants marital status would have been exposed. The role of the prosecution is to unravel the truth, and to bring to book the guilty, and not to sentence the innocent. But we are distressed that this important responsibility has been cast to the winds. In fact, learned counsel for the State has contended that Fathima could have been produced by the Appellant, which argument has only to be stated for it to be stoutly rejected. The Court can fairly deduce from such an argument that had Fathima been examined she would have spoken in favour of the Appellant. Seventhly, it has not been controverted by the prosecutrix that the Appellant had made all arrangements requisite and necessary for setting up a home with the prosecutrix. The present case is not one where the Appellant has prevailed on the prosecutrix to have sexual intercourse with him on the assurance that they were legally wedded; the prosecutrix was discerning and intelligent enough to know otherwise. The facts as have emerged are that the couple were infatuated with each other and wanted to live together in a relationship as close to matrimony as the circumstances would permit. Eightly, as already stated, Sasi should have been examined by the prosecution as she was a material witness and would have testified as to the state of mind of the prosecutrix. Finally, the law has been succinctly clarified in Kaini Rajan. The Court is duty bound when assessing the presence or absence of consent, to satisfy itself that both parties are ad idem on essential features; in the case in hand that the prosecutrix was lead to believe that her marriage to the Appellant had been duly and legally performed. It is not sufficient that she convinced herself of the existence of this factual matrix, without the Appellant inducing or persuading her to arrive at that conclusion. It is not possible to convict a person who did not hold out any promise or make any misstatement of facts or law or who presented a false scenario which had the consequence of inducing the other party into the commission of an act. There may be cases where one party may, owing to his or her own hallucinations, believe in the existence of a scenario which is a mirage and in the creation of which the other party has made no contribution. If the other party is forthright or honest in endeavouring to present the correct picture, such party cannot obviously be found culpable. The following paragraph from Deelip Singh vs State of Bihar 2005 (1) SCC 88 , is extracted: 19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology. 10. We are in no manner of doubt that in the conspectus that unfolds itself in the present case, the prosecutrix was aware that the Appellant was already married but, possibly because a polygamous relationship was not anathema to her because of the faith which she adheres to, the prosecutrix was willing to start a home with the Appellant. In these premises, it cannot be concluded beyond reasonable doubt that the Appellant is culpable for the offence of rape; nay, reason relentlessly points to the commission of consensual sexual relationship, which was brought to an abrupt end by the appearance in the scene of the uncle of the prosecutrix. Rape is indeed a reprehensible act and every perpetrator should be punished expeditiously, severally and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt. In our deduction there was no seduction; just two persons fatally in love, their youth blinding them to the futility of their relationship. 11. The Appellant is not an innocent man inasmuch as he had willy-nilly entered into a relationship with the prosecutrix, in violation of his matrimonial vows and his paternal duties and responsibilities. If he has suffered incarceration for an offence for which he is not culpable, he should realise that retribution in another form has duly visited him. It can only be hoped that his wife Chitralekha will find in herself the fortitude to forgive so that their family may be united again and may rediscover happiness, as avowedly the prosecutrix has found.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. We are fully mindful receptive, conscious and concerned of the fact that the Appellant has been found guilty and has been punished by both the Courts below for the reprehensible crime of the rape of the prosecutrix. However, we consider that the verdict manifests a misunderstanding and misapplication of the law and misreading of the facts unraveled by the examination of the witnesses. Firstly, the prosecutrix is a graduate and even otherwise is not a gullible women of feeble intellect as is evident from her conduct in completing her examination successfully even on the eventful day, i.e. 19.4.2000. In fact she has displayed mental maturity of an advanced and unusual scale. We are convinced that she was aware that a legal marriage could not be performed and, therefore, was content for the time being that an agreement for marriage be executed. Secondly, the testimony of PW4 and PW5 independently indicates that the prosecutrix had been made aware by knowledgeable and independent persons that no legally efficacious marriage had occurred between the couple. Thirdly, this state of affairs can reasonably be deduced from the fact that, possibly on the prompting of the prosecutrix, the Appellant had consulted an Imam, who both the parties were aware, had not recommended the Appellants conversion to Islam, obviously because of his marital status and the law enunciated by this Court in this context. Palpably, had he been a bachelor at that time, there would have been no plausible reason for the Imams reluctance to carry out his conversion. Nay, in the ordinary course, he would have been welcomed to that faith, as well as by his prospective wifes family, making any opposition even by the latter totally improbable. For reasons recondite, the Imam has also not been examined by the prosecution. Fourthly, if he was a bachelor there would have been no impediment whastsoever for them to marry under the Special Marriage Act. Fifthly, we cannot discount the statement attributed to the prosecutrix that her faith permitted polygamy; on extrapolation it would indicate that she was aware that the Appellant was already married and nevertheless she was willing to enter into a relationship akin to marriage with the Appellant, albeit, in the expectation that he may divorce his wife. Sixthly, the prosecution should have investigated the manner in which the prosecutrixs uncle came into possession of the Appellants marriage photograph, specially since it is his defence that he had given the photograph to the prosecutrix when she had insisted, on the threat of suicide, that they should marry each other. The Appellant has also stated that this photograph had been entrusted to Fathima, on the prosecutrixs own showing, was her confidant. Again, for reasons that are unfathomable, the prosecution has not produced these witnesses, leading to the only inference that had they been produced, the duplicity in professing ignorance of the Appellants marital status would have been exposed. The role of the prosecution is to unravel the truth, and to bring to book the guilty, and not to sentence the innocent. But we are distressed that this important responsibility has been cast to the winds. In fact, learned counsel for the State has contended that Fathima could have been produced by the Appellant, which argument has only to be stated for it to be stoutly rejected. The Court can fairly deduce from such an argument that had Fathima been examined she would have spoken in favour of the Appellant. Seventhly, it has not been controverted by the prosecutrix that the Appellant had made all arrangements requisite and necessary for setting up a home with the prosecutrix. The present case is not one where the Appellant has prevailed on the prosecutrix to have sexual intercourse with him on the assurance that they were legally wedded; the prosecutrix was discerning and intelligent enough to know otherwise. The facts as have emerged are that the couple were infatuated with each other and wanted to live together in a relationship as close to matrimony as the circumstances would permit. Eightly, as already stated, Sasi should have been examined by the prosecution as she was a material witness and would have testified as to the state of mind of the prosecutrix. Finally, the law has been succinctly clarified in Kaini Rajan. The Court is duty bound when assessing the presence or absence of consent, to satisfy itself that both parties are ad idem on essential features; in the case in hand that the prosecutrix was lead to believe that her marriage to the Appellant had been duly and legally performed. It is not sufficient that she convinced herself of the existence of this factual matrix, without the Appellant inducing or persuading her to arrive at that conclusion. It is not possible to convict a person who did not hold out any promise or make any misstatement of facts or law or who presented a false scenario which had the consequence of inducing the other party into the commission of an act. There may be cases where one party may, owing to his or her own hallucinations, believe in the existence of a scenario which is a mirage and in the creation of which the other party has made no contribution. If the other party is forthright or honest in endeavouring to present the correct picture, such party cannot obviously be found culpable.10. We are in no manner of doubt that in the conspectus that unfolds itself in the present case, the prosecutrix was aware that the Appellant was already married but, possibly because a polygamous relationship was not anathema to her because of the faith which she adheres to, the prosecutrix was willing to start a home with the Appellant. In these premises, it cannot be concluded beyond reasonable doubt that the Appellant is culpable for the offence of rape; nay, reason relentlessly points to the commission of consensual sexual relationship, which was brought to an abrupt end by the appearance in the scene of the uncle of the prosecutrix. Rape is indeed a reprehensible act and every perpetrator should be punished expeditiously, severally and strictly. However, this is only possible when guilt has been proved beyond reasonable doubt. In our deduction there was no seduction; just two persons fatally in love, their youth blinding them to the futility of their relationship11. The Appellant is not an innocent man inasmuch as he had willy-nilly entered into a relationship with the prosecutrix, in violation of his matrimonial vows and his paternal duties and responsibilities. If he has suffered incarceration for an offence for which he is not culpable, he should realise that retribution in another form has duly visited him. It can only be hoped that his wife Chitralekha will find in herself the fortitude to forgive so that their family may be united again and may rediscover happiness, as avowedly the prosecutrix has found.