VINOD KUMARversusSTATE OF KERALA

                        [2014] 4 S.C.R. 752


A                          VINOD KUMAR
                                  v.
                        STATE OF KERALA
                 (Criminal Appeal No. 821 of 2014)
                          APRIL 04, 2014
8
     [K.S. RADHAKRISHNAN AND VIKRAMAJIT SEN, JJ.]

          PENAL CODE, 1860: s. 376 - Rape - Consent -
    Consensual sexual relationship - Allegation against appellant
C   that he entered into marital relations with the prosecutrix
    without disclosing to her the fact of his being already married
    - Defence case that the prosecutrix was well aware that the
    appellant was married and, still persuaded appellant for
    registration of marriage - Trial court convicted u/s.376 - High
D   Court though noted that friendship between the coup/~
    strengthened into close acquaintance· and eventually leading
    them to elope, still convicted the appellant and treated
    prosecutrix as victim - On appeal, held: Testimony of the Sub-
    registrar and the Deed writer who prepared the agreement of
E   marriage independently indicated that the prosecutrix was
    made aware by knowledgeable and independent persons that
    no legally efficacious marriage had occurred - The Court is
    duty bound when assessing the presence or absence of
    consent, to satisfy itself that both parties are ad idem on
F   essential features - 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 did not present a false scenario which had
    the consequence of inducing the other party into the
    commission of an act - In the instant case, the couple was
G   infatuated with each other and wanted to live together in a
    relationship as close to matrimony as the circumstances
    would permit - Prosecutrix was aware that the appellant was
    already married but, possibly because a polygamous
    relationship was not anathema to her religion, she was willing

H                                752
           VINOD KUMAR v. STATE OF KERALA                      753


  to start a home with the appellant - In these premises, it cannot    A
  be concluded that the appellant was culpable for the offence
  of rape - Prosecutrix was a graduate and even otherwise was
  not a gullible women of feeble intellect as was evident from
  her conduct in completing her examination successfully even
  on day of elopement - She was aware that a legal marriage            B
  could not be performed and, therefore, was content for the
  time with the registration of marriage - The conviction of the
  appellant is set aside.

        WITNESS: Hostile witness - Evidence of - Held: A witness       C
  should be regarded as adverse and liable to be cross-
  examined by the party calling him only when the court is
  satisfied that the witness bore hostile animus against the party
  for whom he is deposing or that he does not appear to be
  willing to tell the truth - In order to ascertain the intention of
  the witness or his conduct, the judge concerned may look into        D
  the statements made by the witness before the Investigating
  Officer or the previous authorities to find out as to whether or
  not there is any indication of the witness making a statement
  inconsistent on a most material point with the one which he
  gave before the previous authorities - The court must,               E
  however, distinguish between a statement made by the witness
  by way of an unfriendly act and one which lets out the truth
  without any hostile intention.                    ·
      The prosecution case was that at the material time,              F
  prosecutrix (PW2) was twenty years old and was
  studying in college. The appellant had introduced himself
  as a student of a college to PW2 and after they had daily
  telephonic conversations, they started meeting each
  other in person. On 17.1.2000, she accompanied him to                G
  Ponmudi, where he proposed marriage to her and they
  were in each others company from 11.00 a.m. to 4.30 p.m.
  On the insistence of the appellant, on the morning of 19th
  April, 2000, she accompanied him to the office of the
  Registrar, where she signed a paper in a van after which
' she was dropped back to college where she wrote her                  H
   754      SUPREME COURT REPORTS            [2014] 4 S.C.R.


A last examination. After the examination, she accompanied
  the appellant and went to several places and had sex with
  the appellant. Her uncle saw them in a market and showed
  the photograph of the appellant's marriage to PW2. A
  verbal altercation ensued and the appellant departed in
B the van. PW2 adopted a stand that the appellant had not
  disclosed the factum of his being married.

       The trial court convicted the appellant under Section
  376 IPC and under Sections 417 and 419 IPC. The High
  Court set aside conviction under Sections 417 and 419
C IPC however upheld conviction under Section 376 IPC.
  Despite arriving at the conclusion that the telephonic
  friendship between the appellant and PW2 strengthened
  into close acquaintance which later blossomed into love
  and eventually leading them to elope, the High Court
D termed PW2 as victim.

       In the instant appeal, it was contended for the
  appellant that he had met PW2 in the University College
  and after some meetings and their getting to know each
E 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, 'F'; that she asked him
F 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; that sexual
  intercourse transpired post 19.4.2000 only and was with
G the free consent of both persons.

         Allowing the appeal, the Court

       HELD: 1. The statement of PW2 formed the fulcrum
  of the case. PW2 inter alia, stated that the appellant had
H told her that after conversion marriage could be
        VINOD KUMAR v. STATE OF KERALA                  755


 performed and to know about it went to meet Imam of           A
 Palayam Mosque who told him that conversion was not
 possible just for marriage and therefore conversion was
possible only after a registered marriage and the
appellant had told her that the marriage would be
registered on 19th. This statement is indeed telltale. PW2     B
was a graduate having exercised exemplary
steadfastness, responsibility, resolve and discipline in
appearing in and passing her last examination for
graduation on the very same day when, in the morning
she had appeared before the Sub-Registrar for                  c
registration of an agreement for marriage, and, later, she
had proceeded and participated in her elopement. PW4,
the Sub-Registrar had deposed that he had registered a
"marriage agreement" between the appellant and PW2 on
19.4.2000 and the document was in the handwriting of a
                                                               0
deed-writer (PW5). In cross-examination, he stated that he
had informed the couple that the marriage would not be
complete on the registration of that agreement, which in
his opinion was executed by them without any hesitation
and with their free consent. The statements made by PW5
in Examination-in-Chief did not appear to run contrary to      E
the prosecution case, yet, inexplicably he was declared
hostile~ A witness should be regarded as adverse and
liable to be cross-examined by the party calling him only
when the court is satisfied that the witness bore hostile
animus against the party for whom he is deposing or that       F
he does not appear to be willing to tell the truth. In order
to ascertain the intention of the witness or his conduct,
the judge concerned may look into the statements made
by the witness before the Investigating Officer or the
previous authorities to find out as to whether or not there    G
1s any indication of the witness making a statement
inconsistent on a most material point with the one which
he gave before the previous authorities. The court must,
however, distinguish between a statement made by the
witness by way of an unfriendly act and one which lets
    756    SUPREME COURT REPORTS             [2014] 4 S.C.R.


A out the truth without any hostile intention. The cross-
  examination of PW5 has the effect of weakening the
  prosecution case. All too frequently the cross-examiner
  is oblivious to the danger that is fraught in asking
  questions the answers to which are not known or
B predictable and which invariably prove to be detrimental
  to his interests. It seemed that details of 'S', the social
  worker who was a witness to the marriag·e agreement
  were available and being a relevant witness to elucidate
  the state of mind of PW2, she ought to have been
c examined by the prosecution. To compound it for the
  prosecution, it was in the re-examination of PW5 that it
  emerged that his opinion that document of marriage was
  deficient if not devoid of legal validity and efficacy was
  conveyed to PW2 by PW5 on 18.4.2000, i.e. the day
D previous to the date of registration. The testimony of PWS
  is of importance because he has stated that both PW2 as
  well as the appellant, as also the social worker named 'S',
  had instructed and engaged him on 18.4.2000 with regard
  to the drafting of the subject agreement and that he had
  told PW2 that the registration would not crea~e a legal
E marriage. [Paras 5, 6) [764-B, C-H; 765-A-B-H; 766-A-B]

        Rabindra Kumar Dey v. State of Orissa 1976 (4) SCC
    233: 1977 (1) SCR 439 - relied on.

F      2. PW12, was the wife of the accused/appellant and
  her statement was also very damaging for the
  prosecution inasmuch as before the subject elopement,
  in the course of a telephone call she had informed the
  speaker that she was the wife of the appellant and that
G PW2 had subsequently in the course of that conversation
  disclosed her name and had told PW12 that she would
  talk to the appellant directly. This witness was also
  declared hostile; and she subsequently tendered the
  information that she has separated from the appellant and
  was living in her father's home. Nothing adverse to the
H
       VINOD KUMAR v. STATE OF KERALA              757


stance of the appellant was elicited by the Public        A
Prosecutor in her cross-examination. [Para 7] [766-B-D]

     Kaini Rajan vs. State of Kera/a (2013) 9 SCC 113 -
relied on.
     3. The appellant was found guilty and was punished B
by both the courts below for the reprehensible crime of
the rape of PW2. However, the verdict manifested a
misunderstanding and misapplication of the law and
misreading of the facts unraveled by the examination of
the witnesses. Firstly, PW2 was a graduate and even C
otherwise was not a gullible women of feeble intellect as
was evident from her conduct in completing her
examination successfully even on the eventful day, i.e.
19.4.2000. In fact she displayed mental maturity of an
advanced and unusual scale. She was aware that a legal D
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 indicated that PW2 was made aware by
knowledgeable and independent persons that no legally E
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 PW2, the
appellant had consulted an Imam, who both the parties
were aware, had not recommended the appellant's F
conversion to Islam, obviously because of his marital
status. Palpably, had he been a bachelor at that time,
there would have been no plausible reason for the
Imam's reluctance to carry out his conversion. Nay, in the
ordinary course, he would have been welcomed to that G
faith, as well as by his prospective wife's family, making
any opposition even by the latter totally improbable. For
reasons recondite, the Imam was also not examined by
the prosecution. Fourthly, if he was a bachelor there
would have been no impediment whatsoever for them to
                                                          H
   758    SUPREME COURT REPORTS             [2014] 4 S.C.R.

A marry under the Special Marriage Act. Fifthly, the
  statement attributed to PW2 that her faith permitted
  polygamy 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
B the appellant, albeit, in the expectation that he may
  divorce his wife. Sixthly, the prosecution should have
  investigated the manner in which PW2's uncle came into
  possession of the appellant's marriage photograph,
  specially since it was his defence that he had given the
c photograph to PW2 when she had insisted, on the threat
  of suicide, that they should marry each other. The
  appellant also stated that this photograph was entrusted
  to 'F' on PW2's own showing, was her confidant. Again,
  for reasons that are unfathomable, the prosecution did
  not produce these witnesses, leading to the only
0
  inference that had they been produced, the duplicity in
  professing ignorance of the appellant's marital status
  would have been exposed. The role of the prosecution
  was to unravel the truth, and to bring to book the guilty,
  and not to sentence the innocent. But this important
E responsibility was cast to the winds. The Court can fairly
  deduce from such an argument that had 'F' been
  examined she would have spoken in favour of the
  appellant. Seventhly, it was not controverted by PW2 that
  the appellant had made all arrangements requisite and
F necessary for setting up a home with PW2. The instant
  case was not one where the appellant has prevailed on
  PW2 to have sexual intercourse with him on the
  assurance that they were legally wedded; PW2 was
  discerning and intelligent enough to know otherwise. The
G facts as 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. Eighthly, 'S' should have been examined by the
  prosecution as she was a material witness and would
H have testified as to the state of mind of PW2. The Court
       VINOD KUMAR v. STATE OF KERALA                  759


is duty bound when assessing the presence or absence          A
of consent, to satisfy itself that both parties are ad idem
on essential features; in the case in hand that PW2 was
laid to believe that her marriage to the appellant had been
duly and legally performed. It was not sufficient that she
convinced herself of the existence of this factual matrix,    B
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            c
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
                                                              0
forthright or honest in endeavouring to. present the
correct picture, such party cannot obviously be found
culpable. [Para 9] [767-C-H; 768-A-H; 769-A-E]
     Deelip Singh vs. State of Bihar 2005 (1) SCC 88: 2004
(5) Suppl. SCR 909 - relied on.                               E

     4. PW2 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, PW2 was willing to start a home         F
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       G
by the appearance in the scene of the uncle of PW2. 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 dou~t. Thus, there was no            H
    760      SUPREME COURT REPORTS               [2014] 4 S.C.R.


A seduction; just two persons fatally in love, their youth
  blinding them to the futility of their relationship. [Para 1O]
  [770-B-E]

       5. The appellant was not an innocent man inasmuch
  as he had willy-nilly entered into a relationship with PW2,
8
  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 will
C find in herself the fortitude to forgive so that their family
  may be united again and may rediscover happiness, as
  avowedly PW2 has found. The conviction of the appellant
  is set aside. [Para 11 and 12] [770-E-G]

D                        Case Law Reference:
      1977 (1) SCR 439              Relied on          Para 6
      (2013) 9 sec 113              Relied on          Para 8
      2004 (5) Suppl. SCR 909       Relied on          Para 9
E
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 821 of 2014.

        From the Judgment and Order dated 17.07.2013 of the
F   High Court of Kerala at Ernakulam in CRLA No. 1481 of 2006.

        Basant R, Raghenth Basant, Adit S. Pujari, Karthik Ashok,
    Hardeep Singh (for Senthil Jagadeesan) for the Appellant.

          Bina Madhavan for the Respondent.
G
          The Judgment of the Court was delivered by

          VIKRAMAJIT SEN, J. 1. Leave granted.

      2. In this Appeal we are confronted with the concurrent
H conviction of the Appellant under Section 376 of the Indian
-

            VINOD KUMAR v. STATE OF KERALA                       761
                   [VIK~AMAJIT SEN, J.]

    Penal Code (IPC), although the findings of the two Courts           A
    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           B
    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                 c
    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,
                                                                        0
    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.
                                                                        E
         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     F
    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     G
    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
                                                                        H
    762     SUPREME COURT REPORTS                    [2014] 4 S.C.R.


A   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
B   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
c   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.
          4. After considering the evidence of PW2 the High Court
D   has notably concluded that there was no compulsion from the
    side of the Appellant at any stage, including when the
    prosecutrix had accompanied him on earlier occasion on a day
    trip to Ponmudi, when significantly no room had been booked
    and they had taken food in KTDC Ponmudi. PW2 has adopted
E   the stand that the Appellant had not disclosed the factum of his
    being a married man and, contrary to the say of the Appellant,
    that he had threatened to commit suicide if she refused to marry
    him. She has deposed that he had told her "that after
    conversion marriage can be performed" but upon inquiry from
F   the Imam he was told that his conversion was not possible just
    for marriage, and that conversion was possible only after a
    registered marriage. The prosecutrix has further testified that
    on the insistence of the Appellant, she had on the morning of
    19th April, 2000 accompanied him to the office of the Registrar,
G   where she had signed a paper in the Maruti Van which was
    driven by his driver and in which the latter's wife and child were
    also seated, after which she was dropped back to College
    where she wrote her last examination, in the event with success.
    After the examination, she accompanied by all these persons·
H   went to Katela, where fully appointed and furnished prem.ises
        VINOD KUMAR v. STATE OF KERALA                    763
               [VIKRAMAJIT SEN, J.]
had been taken on rent by the Appellant; and that the next day A
she departed for Chavra, where the Appellant and she stayed
in Room No.106 in the Mella Lodge. From there they left for
Coimbatore and, thereafter, to Ooty, where they stayed for two
days, i.e. 22nd and 23rd April, 2000; thereafter, they stayed in
a house belonging to relatives of the Appellant in Neelagiri for B
three days. She has deposed that she had sex with the
Appellant at all these places. It was then and there that her
uncle Abdul Rasheed and his auto-rickshah driver chanced
upon them when they had gone to the market to make some
purchases. At that juncture her uncle Abdul Rasheed took out c
the photograph of the Appellant's marriage, a verbal altercation
ensued and the Appellant departed in the Maruti Van. The
prosecutrix has testified that "until uncle showed the photograph
of A 1's marriage I never knew that he is already a married
person, A1 never told me that he is married. If I had an hint I 0
would not have done all this. Thinking that I am the legally
wedded wife of A 1 I used to have sexual intercourse". She has
testified that she told her friend and confidant, Fathima, about
the Appellant speaking to her on the phone and equally
importantly, that on her elopement she had informed her that E
she was safely staying at Katela. As alre~y recorded, the case
of the defence is that the photograph of the Appellant's
marriage was subsequently entrusted by the prosecutrix to
Fathima'.J Significantly, Fathima has not been examined by the
prosecution and instead, the ill-founded contention has been
articulated by learned State Counsel that she could and should F
have been examined by the Appellant. It is her say that although
she. had signed a document which was on stamp paper of
Rs.50/- and had appeared before the Registrar. She was not
aware of its contents. The prosecution case is that PW2, after
her initial reluctance, was persuaded to immediately G
accompany the Appellant for the purpose of registration of
marriage-. It was in these circumstances that she. believed that
she was the legally wedded wife of the Appellant. As already
noted physical sexual relations between the couple have not
been denied. She has testified that had she been aware that H
   764      SUPREME COURT REPORTS                 [2014] 4 S.C.R.


A the accused was already married, she would not have ventured
  into the relationship.
       5. Obviously, the statement of PW2 forms the fulcrum of
  the case. According to her the Appellant had introduced himself
  as a student of B.C.M. College, Kottayam and after they had
8
  daily telephonic conversations, they consented to meet each
  other in person. On 17.1.2000 she accompanied h~ to
  Pcnmudi, where he proposed marriage to her and they ~ere
  in each others company from 11.00 a.m. to 4.30 p.m. As
  already noted, the prosecutrix has, inter alia, stated that - "He
C told me that after conversion marriage can be performed and
  to know about it went to meet Imam of Palayam Mosque who
  told him that conversion is not possible just for marriage and
  therefore conversion is possible only after a registered
  marriage. Thus I agreed for marriage. He told me that the
D marriage would be registered on 19th." In our opinion this
  statement is indeed telltale. We cannot lose perspective of the
  fact that the prosecutrix is a graduate having exercised
  exemplary steadfastness, responsibility, resolve and discipline
  in appearing in and passing her last examination for graduation
E on the very same day when, in the morning she had appeared
  before the Sub-Registrar for registration of an agreement for
  marriage, and, later, she had proceeded and participated in
  her elopement.
       6. Another significant feature is that PW4, the Sub-
F Registrar Kazhakoottam has deposed that he had registered
  a "marriage agreement" between the Appellant and the
  prosecutrix on 19.4.2000 and that the document was in the
  handwriting of a deed-writer named Mohana Chandran Nair
  (PW5). In cross-examination he has stated that he had informed
G the couple that the marriage would not be complete on the
  registration of that agreement, which in his opinion had been
  executed by them without any hesitation and with their free
  consent. So far as PW5 is concerned, we have carefully
  considered the statements made by him in Examination-in-
H Chief, none of which appears to run contrary to the prosecution
        VINOD KUMAR v. STATE OF KERALA                         765
               [VIKRAMAJIT SEN, J.]
case, yet, inexplicably he has been declared hostile. It will be       A
apposite to recall that in Rabindra Kumar Dey vs State of Orissa
1976 (4) SCC 233, this Court has opined that - " ... Merely
because a witness in an unguarded moment speaks the truth
which may not suit the prosecution or which may be favourable
to the accused, the discretion to allow the party concerned to         B
cross-examine its own witness cannot be allowed. In other
words a witness should be regarded as adverse and liable to
be cross-examined by the party calling him only when the court
is satisfied that the witness bears hostile animus against the
party for whom he is deposing or that he does not appear to            c
be willing to tell the truth. In order to ascertain the intention of
the witness or his conduct, the judge concerned may look into
the statements made by the witness before the Investigating
Officer or the previous authorities to find out as to whether or
not there is any indication of the witness making a statement          0
inconsistent on a most material point with the one which he
gave before the previous authorities. The court must, however,
distinguish between a statement made by the witness by way
of an unfriendly act and one which lets out the truth without any
hostile intention". It is also evident to us that the cross-           E
examination of PW5 has the effect of weakening the
prosecution case. All too frequently the cross-examiner is
oblivious to the danger that is fraught in asking questions the
answers to which are not known or predictable and which
invariably prove to be detrimental to his interests. It seems to
us that details of Sasi, the social worker who was a witness to        F
the marriage agreement were available and being a relevant
witness to elucidate the state of mind of the prosecutrix, she
oughtto have been examined by the prosecution. To compound
it for the prosecution, it is in the re-examination of PWS that it
has emerged that his opinion that document of marriage was             G
deficient if not devoid of legal validity and efficacy was
conveyed to the prosecutrix by PWS on 18.4.2000, i.e. the day
previous to the date of registration. We emphasise that the
testimony of PWS is of importance because he has stated that
both the prosecutrix as well as the Appellant, as also the social      H
    766      SUPREME COURT REPORTS                   [2014] 4 S.C.R.


A worker named Sasi, had instructed and engaged him on
  18.4.2000 with regard to the drafting of the subject Agreement
  and that he had told the prosecutrix that the registration would
  not create a legal marriage.
        7. PW12, namely, Chitralekha, is the wife of the accused/
8
  Appellant and her statement is also very damaging for the
  prosecution inasmuch as before the subject elopement, in the
  course of a telephone call she had informed the speaker that
  she was the wife of the Appellant and that the prosecutrix had
  subsequently in the course of that conversation disclosed her
C name and had told PW12 that she would talk to the Appellant
  directly. This witness has also been declared hostile; and she
  has subsequently tendered the information that she has
  separated from the Appellant and is living in her father's home.
  Nothing adverse to the stance of the Appellant has been
D elicited by the Public Prosecutor in her cross-examination.
      8. In Kaini Rajan vs State of Kera/a (2013) 9 SCC 113,
  my esteemed Brother has explained the essentials and
  parameters of the offence of rape in the extracted words, which
E renders idle any further explanation or elaboration:-
          "12. Section 375 IPC defines the expression "rape", which
          indicates that the first clause operates, where the woman
          is in possession of her senses, and therefore, capable of
          consenting but the act is done against her will; and second,
F         where it is done without her consent; the third, fourth and
          fifth, when there is consent, but it is not such a consent as
          excuses the offender, because it is obtained by putting her
          on any person in whom she is interested in fear of death
          or of hurt. The expression "against her will" means that the
G         act must have been done in spite of the opposition of the
          woman. An inference as to consent can be drawn if only
          based on evidence or probabilities of the case. "Consent"
          is also stated to be an act of reason coupled with
          deliberation. It denotes an active will in the mind of a
H         person to permit the doing of an act complained of.
         VINOD KUMAR v. STATE OF KERALA                        767
               [VIKRAMAJIT SEN, J.]
     Section 90 IPC refers to the expression "consent". Section       A
     90, though, does not define "consent", but describes what
     is not consent. "Consent", for the purpose of Section 375,
     requires voluntary participation not only after the exercise
     of intelligence based on the knowledge of the significance
     and moral quality of the act but after having fully exercised    B
     the choice between resistance and assent. Whether there
     was consent or not, is to be ascertained only on a careful
     study of all relevant circumstances".
     9. We are fully mindful receptive, conscious and concerned
of the fact that the Appellant has been found guilty and has been     C
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     D
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
~isplayed mental maturity of an advanced and unusual scale.
We are convinced that she was aware that a legal marriage             E
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          F
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 Appellant's conversion to Islam, obviously because of his         G
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 Imam's 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
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    768     SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A wife's 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
B 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
  inarriage with the Appellant, albeit, in the expectation that he
c may 'div,orce his wife. Sixthly, the prosecution should have
  investigated the manner in which the prosecutrix's uncle came
  into possession of the Appellant's 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
0
  also stated that this photograph had been entrusted to Fathima,
  on the prosecutrix's 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
E Appellant's marital;status would have geen 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
F 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
G 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
H prosecutrix was discerning and intelligent enough to know
        VINOD KUMAR v. STATE OF KERALA                      769
              [VIKRAMAJIT SEN, J.]
otherwise. The facts as have emerged are that the couple were · A
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 B
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 c
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 did not present a false scenario which had the D
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 E
forthright or honest in endeavouring to· present the correct
picture, such party cannot obviously be found culpable. The
following paragraph from Dee/ip Singh vs S(ate of Bihar 2005
(1) sec 88, is extracted:
    " 19. The factors set out in the first part of Section 90 are   F
    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       G
    injury or mrsconception 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
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    770      SUPREME COURT REPORTS                  [2014] 4 S.C.R.


A         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
B
          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
c   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
0   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
E   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
F 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. ft 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
G happiness, as avowedly the prosecutrix has found.

         12. It is in these premises that we allow the Appeal. We
    set aside the conviction of the Appellant and direct that he be
    released forthwith.

H D.G.                                              Appeal allowed.