Vague Statement In Victim's Testimony With No Indication Of Penetration Not Proof Of Rape: Kerala High Court

The Kerala High Court on Wednesday observed that a statement from the victim that the accused hugged her with no indication of penetration would not attract the offence of rape under Section 375 IPC.

Justice Kauser Edappagath observed that a vague statement would not be a substitute for the statutory mandate contained in the said Section:

"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." 

The Bench added that the offence of rape is constituted only if the ingredients under S.375 are made out. 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 evidence given by the victim was found lacking in this aspect since there was no mention or hint of any penetration. As such, the accused who was undergoing imprisonment was acquitted by the Court.

The petitioner herein was convicted concurrently under Section 376 of IPC. The case of the prosecution was that in December 2009 he 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 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. 

Challenging the conviction of guilt, he approached the High Court again with a revision petition. 

Since 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 S.376 of IPC had been established

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.

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. 

Yet both the courts found that the victim and her mother's oral testimony were sufficient to suggest 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.

"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 PW1, 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 possibility of the parties engaging in sexual intercourse was ruled out. 

Further, the Court noticed that the evidence on record and the attending circumstances do not remotely suggest that it was 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.

However, in her testimony, the victim had 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 to anyone including her mother. There was an 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.

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:

"PW1 or PW2 has no case at all during evidence that PW1 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."

As such, the Court found that the Courts below 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.

Case Title: Ranjith v. State of Kerala 

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