{"id":258727,"date":"2021-12-18T09:00:02","date_gmt":"2021-12-18T03:30:02","guid":{"rendered":"https:\/\/www.scconline.com\/blog\/?p=258727"},"modified":"2021-12-24T10:25:45","modified_gmt":"2021-12-24T04:55:45","slug":"the-accused-hugged-and-impregnated-me","status":"publish","type":"post","link":"https:\/\/www.scconline.com\/blog\/post\/2021\/12\/18\/the-accused-hugged-and-impregnated-me\/","title":{"rendered":"Ker HC | \u201cThe accused hugged and impregnated me\u201d; Is mere oral testimony of victim sufficient to attract offence of rape?"},"content":{"rendered":"

Kerala High Court: <\/strong>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,<\/p>\n

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\u201cMere statement by the victim in her evidence \u201cthe accused hugged and impregnated me\u201d 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.\u201d<\/span><\/p>\n<\/blockquote>\n

Background<\/strong><\/span><\/h4>\n

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.<\/p>\n

Concurrent Findings of Lower Courts <\/strong><\/span><\/h4>\n

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.<\/p>\n

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 \u201cthe accused hugged and impregnated me\u201d<\/strong>. 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.<\/p>\n

Offence of Rape<\/strong><\/span><\/h4>\n

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.<\/p>\n

False Promise to Marry<\/strong><\/span><\/h4>\n

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.<\/p>\n

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