VINOD KUMAR versus STATE OF KERALA

Citation: [2014] 4 S.C.R. 752 · Decided: 04-04-2014 · Supreme Court of India · Bench: K.S. RADHAKRISHNAN · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
8 
[2014] 4 S.C.R. 752 
VINOD KUMAR 
v. 
STATE OF KERALA 
(Criminal Appeal No. 821 of 2014) 
APRIL 04, 2014 
[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, 
prosecutrix (PW2) was twenty years old and was 
studying in college. The appellant had introduced himself 
F 
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 Se

Excerpt shown. Read the full judgment & AI analysis in Lexace.