Afsal P. aged v. State of Kerala and Smt T. V. Neema, Public Prosecutor

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944 CRL.MC NO. 5252 OF 2021** **AGAINST THE ORDER/JUDGMENT IN SC 417/2018 OF DISTRICT COURT & SESSIONS COURT,THALASSERY CRIME NO. 729/2018 OF PAYYANNUR POLICE STATION** ## **PETITIONER/SOLE ACCUSED:** AFSAL P AGED 44 YEARS S/O ABDUL RAHMAN HAJI, PERIYANTAKATH HOUSE, ANEESA COTTAGE, CHERUTHAZHAM AMSOM, EZHILODE P.O, KUNHIMANGALAM, KANNUR DISTRICT, PIN-670309. BY ADVS. P.SAMSUDIN M.ANUROOP ## **RESPONDENTS/STATE AND DE FACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 XXX XXX SMT T V NEEMA -SR PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.06.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl. M. C. No. 5252 of 2021 **==> picture [22 x 8] intentionally omitted <==** ## **O R D E R** This Crl.M.C. has been filed to quash all further proceedings in S.C.No.417/2019 on the file of the Principal Sessions Court, Thalassery. 2. The petitioner is the sole accused. He faces trial for the offences punishable under Sections 376(2)(n) of the IPC and Section 3(2) (v) of the SC/ST Act. 3. The prosecution case in short is that the petitioner who is not a member of Scheduled Caste, after giving a false promise of marriage, sexually assaulted the victim/2[nd] respondent, who is a member of a Scheduled Caste, on several occasions and further he received money and gold ornaments from her. 4. I have heard Sri. P. Samsudheen, the learned counsel for the petitioner and Smt. T.V. Neema, the learned Public Prosecutor. Even though notice has been served to the 2[nd] Crl. M. C. No. 5252 of 2021 **==> picture [22 x 9] intentionally omitted <==** respondent, there is no appearance. 5. The learned counsel for the petitioner submitted that, even if the entire allegations in the First Information Statement together with all the materials collected during the investigation are taken at its face value, they do not constitute the offences alleged against the petitioner. 6. I have gone through the FIS given by the victim as well as the connected documents. There is absolutely nothing to attract the basic ingredients of Sections 376(2)(n) of the IPC. A reading of the FIS would show that the 2[nd] respondent was a married woman. The petitioner was also a married person. They fell in love in the year 2016. According to the 2[nd] respondent, she consented for sex persuaded by the false promise of marriage given by the petitioner. All the sexual acts were taken place during the subsistence of marriage of the 2[nd] respondent with her husband. A reading of FIS further would show that they had sexual acts so many times voluntarily at Crl. M. C. No. 5252 of 2021 **==> picture [22 x 8] intentionally omitted <==** different places. 7. There is no case for the 2[nd] respondent that, the sex they had, was forcible one. But, on the other hand, according to the 2[nd] respondent, she consented for sex persuaded by the promise of marriage given by the petitioner. It is settled 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 of the IPC 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. (see **Ranjith v. State of Kerala** [2022 (1) KHC 195]). 8. As stated already, it is a case where the 2[nd] respondent who is a married woman voluntarily had sex with the petitioner. She knew pretty well that she cannot enter into a lawful marriage with the petitioner. This Court in **Anilkumar v. State of Kerala** [2021 (1) KHC 435] has held that the promise Crl. M. C. No. 5252 of 2021 **==> picture [22 x 9] intentionally omitted <==** alleged to have been made by the accused to a married woman that he would marry her is a promise which is not enforceable in law as it is against public policy in view of the mandatory provisions contained in Section 23 of the Indian Contract Act and such an unenforceable and illegal promise cannot be the basis for the prosecution to contend that, the consent of the woman, who had sexual relationship with the accused, was obtained on the basis of misconception of fact as understood in Explanation 2 of Section 376 of the IPC and Section 90 of the IPC. Recently this Court in **xxx v. State of Kerala and Another** (2022 KHC 296) has held that in a case where victim who is a married woman voluntarily having sex with her former lower knowing well that she cannot enter in to lawful marriage, the offence of rape does not get attracted. 9. The Apex Court in **Deepak Gulati v. State of Haryana** [(2013) 7 SCC 675] and in **Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra** [AIR 2019 SC 327], Crl. M. C. No. 5252 of 2021 ..6.. drawing distinction between rape and consensual sex observed that the court must very carefully examine whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust. In drawing distinction between mere breach of a promise and not fulfilling a false promise, it was further observed that, if the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape and that if the accused had any mala fide intention or had clandestine motives, it is a clear case of rape. 10. As stated already, a reading of FIS would show that the sex the petitioner and the 2[nd] respondent had was purely consensual in nature. There is nothing on record to show that the petitioner had made a false promise only to satisfy his lust. No question of promise to marry arises inasmuch as the 2[nd] respondent is a married woman and she knew that a legal Crl. M. C. No. 5252 of 2021 **==> picture [22 x 8] intentionally omitted <==** marriage with the petitioner was not possible under law. The offence of rape cannot be constituted on the basis of the allegations in the FIS and it is apparent that the consent was not given by her on the basis of any misconception. In these circumstances, I am of the view that no purpose will be served in proceeding with the matter further. All further proceedings in S.C.No.417/2019 on the file of the Principal Sessions Court, Thalassery hereby stand quashed. Crl.M.C. is, accordingly, allowed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** RMV/22/06/2022 Crl. M. C. No. 5252 of 2021 ..8.. ## **APPENDIX OF CRL.MC 5252/2021** ## PETITIONER ANNEXURES |Annexure A1|TRUE COPY OF THE FIS AND FIR IN CRIME| |---|---| ||NO.729/2018 OF PAYYANUR POLICE| ||STATION.| |Annexure A2|TRUE COPY OF THE FINAL REPORT IN CRIME| ||NO.729/2018 OF PAYYANUR POLICE| ||STATION.| |Annexure A3|TRUE COPY OF THE COMPLAINT LODGED BY| ||THE PETITIONER BEFORE THE PAYYANUR| ||POLICE STATION DATED 14.02.2018.| |Annexure A4|TRUE COPY OF THE FIS AND FIR IN CRIME| ||NO.1769/2015 OF PAYYANUR POLICE| ||STATION.| |Annexure A5|TRUE COPY OF THE NEWS ITEM REPORTED IN| ||MAKTHAB DAILY DATED 27/08/2018.| |Annexure A6|TRUE COPY OF RTI ACT REPLY AND| ||COMPLAINT FILED BY THE 2ND RESPONDENT.| |Annexure A7|TRUE COPY OF THE COMPLAINT FILED BY| ||KATTOOR ASMA AND RECEIPT ISSUED BY THE| ||SI OF POLICE PAYYANUR DATED| ||19.10.2018.| |Annexure A8|TRUE COPY OF THE JUDGMENT IN CC| ||NO.937/2013 ON THE FILES OF JFCM COURT| ||PAYYANUR DATED 16.03.2017.| |Annexure A9|TRUE COPY OF THE FIS AND FIR IN CRIME| ||NO.1764/2015 OF PAYYANUR POLICE| ||STATION.| |Annexure A10|MARRIAGE PHOTOS OF THE 2ND RESPONDENT.| |Annexure A11|TRUE COPY OF AGREEMENT DATED| ||23.09.2019 EXECUTED BETWEEN 2ND| ||RESPONDENT AND MR.NASEEM @ PRADEEP.| |Annexure A12|TRUE COPY OF THE LAWYER NOTICE DATED| ||18.02.2020.| |Annexure A13|TRUE COPY OF THE PROCEEDINGS OF| ||DISTRICT DEVELOPMENT OFFICER FOR SC,| ||KANNUR DATED 19.07.2019.|