Amal Raj v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942** ## **Crl.MC.No.4858 OF 2014** **CRIME NO.1205/2014 OF Kuruppampady Police Station , Ernakulam** ## **PETITIONER/ACCUSED:** **AMAL RAJ AGED 19 YEARS S/O. MADHAVAN, MARAMPILLY HOUSE, PONJASSERY P.O., MULLANKUNNU, PERUMBAVOOR, ERNAKULAM DISTRICT-683 547.** **BY ADVS. SRI.K.S.ARUN KUMAR SMT.M.N.MAYA** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 DINCY DEVASSY AGED 19 YEARS D/O. DEVASSY, INCHAPADAVIL HOUSE, KORAGATTIL, MANNAMKANDAM P.O., ADIMALI, IDUKKI DISTRICT.** ## **ADVS.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR SMT.RESMI THOMAS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 4858 of 2014 2 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 4858 of 2014 -----------------------------------Dated this the 22[nd] day of December, 2020 ## **O R D E R** The prayer in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of Cr.PC is as follows: _“........to quash Anx.I FIR as against the petitioner in crime No.1205/2014 of Kuruppanpadi Police Station in the interest of justice.”_ 2. Heard Sri.K.S.Arunkumar, learned counsel appearing for the petitioner/accused and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R1 State of Kerala. Though notice has been duly served on contesting respondent No.2 (lady defacto complainant) there is no appearance for that party. 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Anx.I FIR in crime No.1205/2014 of Kuruppanpadi Police Station, Ernakulam District for offences punishable under Secs.376 of the IPC and Secs.3(2) & 3(5) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act, 1989 as amended and also the offence punishable under Secs.3(a) & 4 of the Protection of Children from Sexual Offences Act, 2012. 4. The police after investigation has found that the 2[nd] Crl.M.C No. 4858 of 2014 3 respondent defacto complainant had already attained the majority age of 18 years at the time of the alleged incidents, which commenced from October 2013 onwards and has thereupon filed additional report before the learned Magistrate so as to delete the offences of the POCSO Act, more particularly, Secs.3(a) & 4 thereof. Now the offences alleged against the petitioner are those punishable under Sec.376 of the IPC and Secs.3(2) & 3(5) of SC/ST (POA) Act, 1989. It is stated that the 2[nd] respondent belongs to ullada (scheduled Tribe community) and therefore the provisions contained in the said SC/ST (POA) Act, 1989 would come into play, etc. 5. The brief of the prosecution case is that, the date of birth of the 2[nd] respondent–lady defacto complainant is 28-11-1995 and that of the petitioner/accused is 10-03-1995. Further that both of them were classmates from the childhood days and that the petitioner was one year senior to her in the school and they knew each other for a very long time. Later, when they had grown up a love affair had blossomed between them and that on a day in October, 2013, while she had attended to the hospital in connection with her grandmother’s illness, the 2[nd] respondent had gone along with the petitioner/accused to his house where his grandparents alone were Crl.M.C No. 4858 of 2014 4 there and that on that night both of them stayed together in the petitioner’s house and they had sexual relationship. It is stated that thereupon the petitioner had allegedly promised her that he would marry her. That thereafter they had series of sexual relationships on various occasions and that the petitioner had always assured her that he would marry her. That subsequently much later, on 03-05-2014 the petitioner/accused had come to her residence and told her that he is no longer interested to marry her, etc. Further that in the meanwhile, the 2[nd] respondent become pregnant on account of the said sexual relationship with the petitioner and that she had to suffer abortion, etc. It is on this basis that the impugned criminal proceedings has been set in motion. 6. Later it appears that, the parents of the petitioner had opposed the marriage proposal presumably on account of community differences. Later, it appears that the petitioner and the 2[nd] respondent and their families decided to solemnise the marriage of the petitioner with the 2[nd] respondent and they had entered into Anx.II agreement dated 28-06-2014, stating that both sides have agreed to marry within six months. Thereupon the 2[nd] respondent has also filed Anx.III affidavit dated 21-08-2014 stating that she had Crl.M.C No. 4858 of 2014 5 initially made the allegations in the impugned criminal proceedings are only on the basis of misunderstandings and that later both of them have resolved the disputes and that they have decided to marry and that she has no objection for quashment of the impugned criminal proceedings. Subsequently, it appears that the petitioner has sworn to Anx.V affidavit dated 18-06-2019 wherein he would state about the earlier decision to solemnise their marriage and the execution of Anx.III affidavit and that later the 2[nd] respondent had developed another love affair with one Sumesh and that the marriage of the 2[nd] respondent with such Sumesh has been solemnised on 1906-2016. That since the 2[nd] respondent had dropped the marriage proposal, petitioner had subsequently married one Danya on 13-042019, etc, which is an arrange marriage, etc. 7. It is by now well settled that it may not be right and proper for this Court in exercise of the powers under Sec.482 of Cr.PC, to consider quashment of grave and serious offence of rape as per Sec.376 of the IPC, solely on the ground of settlement between the parties. [see _**Shimbhu v. State of Haryana**_ (2014) 13 SCC 318, _**Parbatbhai Aahir v. State of Gujarat**_ (2017) 9 SCC 641, **Anita Maria Dias v. State of Maharashtra,** (2018) 3 SCC 290, 6 Crl.M.C No. 4858 of 2014 **Sebastian @ Solly v. State of Kerala,** 2015(1) KLJ 384, etc.]. However, this Court has held in various decisions including those in _**Freddy @ Antony Francis & Others v. State of Kerala & Another**_ [2017 KHC 344 = 2018 (1) KLD558 , _**Denu P. Thampi v. Ms.X & Another**_ [2019 (3) KHC 199 = 2019(2) KLT 996], that an exception to the above approach should be made in cases where the petitioner/accused has married the lady defacto complainant and the marriage is voluntary, this Court could consider the quashemnt of the impugned criminal proceedings involving offence as per Sec.376 of the IPC on the ground of such extraneous circumstances more particularly in cases where the allegation is that the consent of the woman was obtained on the basis of promise to marry etc. 8. It appears that in this case though initially the 2[nd] respondent has stated in Anx.II affidavit dated 21-08-2014 that she and the petitioner have decided to solemnise their marriage within six months, the same has not worked out. It appears that the 2[nd] respondent has married someone else. Suffice to say that therefore there is no scope to examine the plea of the petitioner for quashment of the impugned criminal proceedings on the ground of subsequent marriage between the parties. Hence the plea of the petitioner for Crl.M.C No. 4858 of 2014 7 quashment will have to be considered on merits. 9. It will now be pertinent to refer to the legal principles laid down by the Apex Court and various High Courts in the matter of distinction of rape as per Sec.376 I.P.C and consensual sexual relationship between the parties. It is by now well established that there is a fine and substantial distinction between rape as understood in Sec.376 of the IPC and consensual sexual relationship between parties and this has been the subject matter of detailed consideration of various judgments of the Apex Court and various High Courts, including this Court. The said issue is the subject matter of a catena of rulings of the Apex Court in decisions as in _**Uday v. State of Karnataka**_ , reported in (2003) 4 SCC 46 and _**Deelip Singh @ Dilip Kumar v. State of Bihar**_ , reported in (2005) 1 SCC 88, where it has been held that where the woman has voluntarily and consciously consented to have a sexual relationship with the accused, then her consent cannot be said to be in consequence of any misconception of fact as envisaged in Sec.90 of the IPC. In _**Dr.Dhruvaram Murlidhar Sonar v. The State of Maharashtra & Ors.**_ , reported in 2019 (1) SCALE 64, the Apex Court has again highlighted about the substantial distinction between Crl.M.C No. 4858 of 2014 8 rape and consensual sexual relationship. In _**Shivshankar @ Shiva v. State of Karnataka & another**_ (judgment dated 06.04.2018 of the Apex Court in Crl.Appeal No.504/2018), it has been held that it will be rather difficult to hold sexual intercourse in the course of a relationship which was continued for several years is ‘rape’, especially in the face of the complainant’s own allegation that they lived together. In _**Dhruvaram Murlidhar Sonar’s**_ case (supra), the Apex Court had elucidated the principles in that regard and it has laid down the clear distinction between rape and consensual sexual relationship and that the acknowledged consensual physical relationship between the parties would not constitute an offence under Sec.376 of the IPC. It has also been held that breach of promise to marry in such cases will not by itself lead to a scenario, whereby it can be held that the consent of the woman to undergo sexual relationship was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC. 10. The Division Bench of the Calcutta High Court in decision in _**Jayanthi Rani Panda v. State of West Bengal and another**_ (1984 CriLJ, 1535) = (1984 KHC 1148) para No.7 thereof has held that in order to make out a case that the consent of the Crl.M.C No. 4858 of 2014 9 woman to have sexual intercourse is vitiated by misconception of fact as understood in Sec. 90 of the IPC. The prosecution should have strong materials to show that the accused had no intention of keeping the promise right from the commencement of the relationship between the parties and that he has made to promise only with the dishonest intention to enjoy sexual relationship. Further that the mere failure to keep the promise at a future uncertain date due to reasons that may not be very clear does not always amount to misconception of fact at the inception of the fact itself. Further any provision which has been held that in order to come within the meaning of misconception of fact as understood in Sec. 9o of the IPC, the said fact must have an immediate relevance. It has thus been held that in a case where two full grown adults enter into sexual relationship and continue to have the same for quite some time, then in such cases, it may not be proper to call in aid Sec.90 of the IPC so as to contend that the consent of the woman was obtained on the basis of misconception of fact, so as to excuse the conduct of the lady and to fasten criminal liability on the other, unless the Court can be assured that right from the very inception the accused never really intended to marry the lady, etc. Crl.M.C No. 4858 of 2014 10 11. The Apex Court had also laid down the legal principles relating to distinction between rape and consensual relationship in judgments as in the three judge bench decision of the Apex Court in _**Pramod Suryabhan Pawar v. State of Maharashtra and anr.**_ [(2019) 9 SCC 608] = [AIR 2019 SC 4010], _**Maheswar Tigga v. State of Jharkhand**_ [AIR (2020) SC 4535], etc. 12. In the instant case, reading of the impugned criminal proceedings at Anx.I would make it clear that the petitioner and the 2[nd] respondent were known to each other from the childhood days and that the petitioner was one year senior to the 2[nd] respondent in the same school. Indisputably, both of them had completed the majority age of 18 years at the time of alleged incident which commenced on a day in October, 2013. The case of the 2[nd] respondent is that, on a day in October, 2013, she had gone among the petitioner to his house in the night and at that time only his grandparents alone were there and there they had spent the night in his room, where they had sexual relationship and that the petitioner had promised her that he would marry her. That later, both of them had sexual relationship on quite of few occasions and that the petitioner had always promised her that he would marry her. The Crl.M.C No. 4858 of 2014 11 time span of the occurrences of the other incidents after the first incident on a day in October, 2013 is not very clear. Thereafter the allegation is that the petitioner had lost interest in the 2[nd] respondent and presumably on a questioning the petitioner came and informed her on 03-05-2014 that he is no longer interested to marry her, etc. 13. The case of the petitioner is that the alleged sexual incidents have not happened and further that he was willing for the marriage proposal but there was opposition from his community and family members on account of the community difference between the parties, etc. In the instant case, the prosecution has not brought out any materials to show that the petitioner had made the alleged promise with a dishonest intention never to keep the promise right from the commencement of the relationship between the parties. Further the first alleged sexual incident is said to have happened on a day in early part of October, 2013 and subsequent sexual incidents have happened thereafter. The time span of the later incidents are not alleged with any clarity in the materials at Anx.I. Therefore the prosecution has not made out any strong facts and circumstances to show that the alleged facts in relation to the projected misconception of the fact has got immediate relevance and proximity to the alleged Crl.M.C No. 4858 of 2014 12 subsequent incidents, resiling from the alleged promise to marry, etc. Hence on both these counts it cannot be said that the prosecution can take up the plea that the consent of the 2[nd] respondent to have sexual relationship was obtained will stand vitiated on account of misconception of fact as understood in Sec.90 of the IPC on account of the alleged false promise, etc and hence the inevitable conclusion is that, even if it is assumed that the alleged sexual incidents are broadly true, the same could have happened only on the basis of consent of two full grown adults and both the petitioner and the 2[nd] respondent had at the relevant time completed the majority age of 18 years. 14. Moreover, it has also been borne in mind that the parties belong to different communities and in all reasonable likelihood, the petitioner, as a young man, would have been prepared for the marriage proposal but he would have faced stiff resistance from his parents, other family members and community members, in going her with the marriage proposal in view of his young age as well as the community differences, etc and such stiff opposition could conventionally occur in cases of this nature. It cannot be said that the alleged promise of the petitioner to marry for the dishonest right Crl.M.C No. 4858 of 2014 13 from the commencement of the transaction and in a case, where the accused is forced to resile from the promise subsequently due to other circumstances, it cannot be said that the initial promise was false and was made dishonestly fully with the intention to enjoy sexual relationship with the lady victim, etc. 15. Hence in the light of these aspects this Court is constrained to take the view that, even if it is assumed that the allegations in Anx.I are broadly true, then the same cannot be the basis to contend that the consent of the woman to have sexual relationship was vitiated by misconception of fact and so the upshot of the discussion is that, the sexual relationship if true, it would have happened only on the basis of mutual consent of two full grown adults. So none of the vital ingredients of the offence as per Sec.376 of the IPC are made out in this case. So this Court is of the view that the impugned criminal proceedings would deserve interdiction. 16. In the light of these aspects, it is ordered in the interest of justice that the impugned Anx.I FIR in crime No.1205/2014 of Kuruppanpadi police station as against the petitioner/accused and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. Crl.M.C No. 4858 of 2014 14 17. The petitioner will produce certified copies of this order before the Investigating officer concerned as well as before the Judicial First Class Magistrate Court-I, Perumbavoor for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.M.C No. 4858 of 2014 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE I**|**TRUE COPY OF THE FIR IN CRIME**| |---|---| ||**NO.1205/2014 OF KURUPPANPADI POLICE**| ||**STATION.**| |**ANNEXURE II**|**TRUE COPY OF THE AGREEMENT**| ||**DTD.28.6.2014 BETWEEN THE PETITIONER**| ||**AND THE 2ND RESPONDENT.**| |**ANNEXURE III**|**COPY OF THE AFFIDAVIT SWORN BY THE 2ND**| ||**RESPONDENT.**| |**ANNEXURE IV**|**AFFIDAVIT SWORN BY THE PETITIONER**| |**ANNEXURE V**|**TRUE COPY OF THE AFFIDAVIT SWORN BY THE**| ||**PETITIONER**| **RESPONDENT'S/S EXHIBITS: NIL**