Ker HC | “The accused hugged and impregnated me”; Is mere oral testimony of victim sufficient to attract offence of rape?

Kerala High Court

Kerala High Court: Kauser Edappagath, J., reversed the concurrent findings of Lower Courts, whereby the accused was convicted for the offence of rape. The Bench while acquitting the accused, stated,

“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. Such a vague statement would not be a substitute for the statutory mandate as contained in the Explanation to Section 375.”

Background

The victim and her mother, both illiterate, were working as a coolie. The accused was working at a furniture shop situated near to the house of the victim. Admittedly the victim and the accused got acquainted; they fell in love and eventually, decided to marry. The prosecution case was that one day the accused went to the house of the victim, had sex with her and made her pregnant on false promise of marriage.

Concurrent Findings of Lower Courts

The Trial Court found the accused guilty under Section 376 of IPC, convicted and sentenced him to undergo rigorous imprisonment for 7 years and to pay a fine of `10,000/. In appeal, the appellate Court confirmed the conviction and sentence.

The conviction was based mainly on the oral testimonies of the victim and her mother. The only incriminating part in the testimony of victim was that “the accused hugged and impregnated me”. There was no other evidence to suggest penetrative sexual intercourse or that the victim gave birth to a child as alleged. Admittedly no DNA test was conducted to find out the paternity of the child.

Offence of Rape

A reading of S.375 IPC shows that to commit ‘rape’, a man must have ‘sexual intercourse’ with a woman. Though, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding, however, 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. 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 in the instant case, such fact was not revealed. She only stated that the entered the room, hugged and impregnated her.

False Promise to Marry

The appellate court, after adverting to the evidence of the victim and her mother, observed that the consent was obtained by the accused by making a false promise to marry and such consent is non-est in law.

In Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608, it was observed that for establishing false promise to marry, two propositions must be established:

  • the promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given.
  • the false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.

“If a man retracts his promise to marry a woman, consensual sex they had would not constitute an offence of rape under Section 376 of the IPC 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.”

Therefore, prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from the very inception. The victim had no case at all during evidence that she subjected herself to sex, persuaded or believed by the promise of marriage given by the accused. 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 her not to reveal the incident to anyone and left the house with a promise to marry her. Thus, even according to the prosecution case, the promise of marriage was given after the alleged sexual act and not at the initial stage.

Factual Analysis

Noticeably, on the alleged date of the incident at odd hour, when the accused knocked at the door of victim’s house, she opened it and let the accused in. According to her, thereafter he hugged and made her pregnant. She had no case that she raised alarm when he hugged her. It had also come out in evidence that she did not make any complaint regarding the said incident against the accused to anybody and there was unexplained delay of more than three months in lodging FIS.

The victim had deposed that she and her mother used to sleep together in the same room, she further stated that her mother knew when she switched on the light on the arrival of accused, therefore, the Bench opined,

“The attended circumstances clearly indicated that if at all there was sexual intercourse between the victim and the accused, it was a consensual one, that too with the knowledge of victim’s mother.”

Verdict

In the backdrop of above, the Bench was of the view that the Courts below had committed illegality in holding that the victim gave consent relying upon the false promise of the accused that he would marry her. Accordingly, the conviction and sentence passed by the courts below was set aside and the accused was acquitted. [Ranjith v. State of Kerala, 2021 SCC OnLine Ker 5116, decided on 15-12-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For the Accused: Sherly S.A, Legal Aid Counsel

For the State: Sanal P.Raj, Public Prosecutor

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