The Kerala High Court in its recent order observed that a statement from the victim that the accused hugged her without any indication of penetration would not attract the offence of rape under Section 375 IPC.
The petitioner herein was convicted concurrently under Section 376 of IPC and sentenced to undergo rigorous imprisonment for 7-years and to pay a fine of Rs 10,000.Thus this appeal.
Justice Kauser Edappagath of the Kerala High Court observed that a vague statement would not be a substitute for the statutory mandate contained in the said Section. He quoted,
Mere statement by the victim in her evidence ‘the accused hugged and impregnated me’ without indication about penetration aspect is not sufficient to attract the offence of rape.
Case:
The case of the prosecution was that in December 2009, the accused went to the victim’s house, had sex with her and made her pregnant on the false promise of marriage.
The police registered a crime against the accused based on the FIS (First Information Statement) given by the victim three months after the alleged incident. The trial court found him guilty under Section 376 and sentenced him accordingly.
The conviction and sentence were confirmed by the appellate court based mainly on the oral testimonies of the victim and her mother.
According to the prosecution, the accused withdrew from the marriage proposal unilaterally after satisfying his sexual lust, while according to the defence, the victim and her mother withdrew from the marriage proposal since the accused failed to return the gold chain he borrowed from the victim for pledging.
Challenging the conviction of guilt, he approached the High Court again with a revision petition.
Submission by Accused
The petitioner was represented by his own lawyer, State Brief Advocate Sherly S.A was appointed as the Legal Aid Counsel. He alleged that there was no cogent and reliable evidence to show that the accused committed rape on the victim as alleged by the prosecution.
The respondent represented by Public Prosecutor Sanal P. Raj however supported the findings and verdict handed down by the courts below and argued that necessary ingredients of Section 376 of IPC had been established.
Kerala High Court
The Bench examined the matter and remarked that the offence of rape is constituted only if the ingredients under Section 375 are made out. Adding further the high court opined,
Unless the victim states in her evidence about the penetrative non-consensual sexual act by the accused on her, the offence of rape cannot be said to be made out.
The Court noted that the only incriminating part in the victim’s testimony was “the accused hugged and impregnated me“. There was no evidence to suggest penetrative sexual intercourse or to show that she gave birth to a child as alleged.
Victim & Her Mother’s Oral Testimony Sufficient?
Both the courts accepted oral testimonies of the victim and her mother that suggested sexual intercourse between the victim and the accused.
The judge noted that even the slightest penile-vaginal entry will amount to ‘sexual intercourse’, and that precedents had established that ‘penile accessing’ would be sufficient to constitute the ‘penetration’ in the sexual intercourse which is necessary to constitute are under Section 375.
Although the victim’s evidence in a sexual offence is entitled to great weight, the absence of corroboration notwithstanding, even in a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. The high court said,
Penetration being an essential ingredient of the offence of rape, there must be proof of actual penetration or at least penile accessing. The only witness who can prove that is the victim.
But, even on a plain reading of the evidence of the victim, such fact is not revealed. She has not stated anything relating to “penile penetration” or such attempt. She only stated that the accused hugged and impregnated her.
Therefore, the high court ruled out the possibility of the parties engaging in sexual intercourse.
Was the relationship Consensual?
The high court noticed all the evidence and circumstances on record, which indicated that the relationship was not non-consensual.
After referring to a plethora of judgments, the judge laid down that the legal position is that if a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence of rape under Section 376, unless it is established that the consent for such sexual act was obtained by him by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge.
Noting critical facts of the case, the court said,
Coming to the facts of the case, the evidence of the victim would show that on the alleged date of the incident at odd hour, when the accused knocked at the door of her house, she opened it and let the accused in. She also stated that she switched on the light. According to her, thereafter he hugged and made her pregnant.
She has no case that she raised alarm when he hugged her. It has also come out in evidence that she did not make any complaint regarding the said incident against the accused to anybody. She did not even disclose to her mother. There was unexplained delay of more than three months in lodging FIS.
All these factors indicated that if at all there was sexual intercourse between the victim and the accused as alleged by the prosecution, it was a consensual one.
Promise of Marriage
Moreover, the court noted that even according to the prosecution, the promise of marriage was given after the alleged sexual act and not at the initial stage. It said,
Victim and her mother had no case at all during evidence that the girl subjected herself to sex, persuaded or believed by the promise of marriage given by the accused. Even in the FI statement, there was no such case.
On the other hand, what was stated in the FI statement was that the accused seduced her though she protested his advances and after the intercourse, he told him not to reveal the incident to anyone and left the house with a promise to marry her.
Man Acquitted
The high court concluded that the trial courts had committed illegality in holding that the victim gave consent relying upon the false promise of the accused that he will marry her and, therefore, the consent given by her cannot be said to be a consent so as to excuse the accused for the charge of rape under Section 375.
As such, the conviction and sentence passed by the courts below vide the impugned judgments were set aside. The revision petitioner was found not guilty of the offence charged against him and accordingly acquitted.
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