VINOD Vs. STATE OF KERALA

JUDGEMENT

(1.) Leave granted.

(2.) In this Appeal we are confronted with the concurrent conviction of the Appellant under Section 376 of the Indian Penal Code (IPC), although the findings of the two Courts substantially differ. The High Court has set aside his conviction under Sections 417 and 419 IPC, whereas the Additional District & Sessions Judge, Thiruvanthapuram, had sentenced the Appellant to Rigorous Imprisonment for a period of seven years and a fine of Rs.25,000/- and in default of payment thereof, to undergo Rigorous Imprisonment for three years. In the Impugned Order the High Court has reduced this sentence to Rigorous Imprisonment for a period of four years but, while maintaining the fine of Rs.25,000/-, has ordered that in default of its deposit, the Appellant would suffer Rigorous Imprisonment for the reduced period of six months. At the commencement of the impugned Judgment, the learned Judge has aptly observed that what began as a telephonic friendship strengthened into close acquaintance between the Appellant and the prosecutrix (PW2) which later blossomed into love, eventually leading them to elope. Despite arriving at this conclusion, the learned Judge has nevertheless termed PW2 as the victim, which seems to us to be an incongruous factual finding leading to a misconception and consequently a misapplication of the law.

(3.) So far as the facts are concerned, it is uncontroverted that at the material time PW2 was twenty years old and was studying in College for a Degree and that she appeared in and successfully wrote her last examination on 19.4.2000, the fateful day. Thereafter, when she did not return home from college, her father conducted a search which proved to be futile. Accordingly, on the next day, 20th April, 2000, he lodged the First Information Report, Exhibit P-1. It transpires that the prosecutrix (PW2) has since got married on 11th March, 2001 and at the time of her deposition had already been blessed with children. It is also not controverted that a document was registered with Sub-Registrar Office Kazhakoottam (SRO) which has been variously nomenclatured, including as a marriage registration. The Appellant's case is that he had met PW2 in the University College and after some meetings and their getting to know each other better she had threatened to commit suicide if he did not marry her; that he immediately informed her that he was already married and had two children and that he had even given his marriage photographs to her, which she had entrusted to her friend, Fathima; that she asked him to divorce his wife; that she informed him that since her religion permitted a man to marry four times at least some documentation should be prepared to evidence their decision and compact to marry each other. It has been contended by the Appellant that sexual intercourse transpired post 19.4.2000 only and was with the free consent of both persons. The Trial Court had applied the Fourth Explanation to Section 375 and, thereafter, held the Appellant guilty, inter alia, of the commission of rape.