Aneesh C. v. The State of Kerala and XXX (De facto complainant)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942** ## **CRL.A.No.824 OF 2020** **AGAINST THE DISMISSAL ORDER IN CRMC 1997/2020 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM CRIME NO.810/2020 OF ALUVA EAST POLICE STATION, ERNAKULAM** ## **APPELLANT/ACCUSED:** **ANEESH.C AGED 25 YEARS, S/O.CHANDRAN T., PUTHUVALPUTHENVEEDU, ARAYANGAMUGAL KARA, NEAR NITHYASAHAYAMATHAVU CHURCH, ATHIYANNOOR VILLAGE, ARALUMOODU PO, NEYYATINKARA, THIRUVANANTHAPURAM-695 123** **BY ADVS. SRI.SAJEEVAN KURUKKUTTIYULLATHIL SRI.S.DILEEP SATHYAN SHRI.VISHNU PRABHAKAR V.S.** ## **RESPONDENTS:STATE AND DE FACTO COMPLAINANT:** **1 THE STATE OF KERALA REP.BY SUB INSPECTOR OF POLICE, ALUVA EAST POLICE STATION THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KEARLA, ERNAKULAM** **2 XXX (NAME AND ADDRESS ENCLOSED IN SEALED COVER)** ## **OTHER PRESENT:** **SMT.AMBIKA DEVI,SPL.GP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A.No.824/2020 (C) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------- Crl.A.No.824 of 2020 ---------------------------------------------Dated this the 30[th] day of November, 2020 ## **J U D G M E N T** The prayer in the aforecaptioned Criminal Appeal is as follows :- _“............to release the Appellant/accused on bail.”_ 2. Heard Sri.Sajeevan Kurukkuttiyullathil, learned counsel appearing for the appellant/accused, Smt.Ambikadevi, learned Public Prosecutor appearing for respondent-State of Kerala. 3. The learned Public Prosecutor would submit that as directed by this Court on 27.10.2020, notice on the 2nd respondent–lady defacto complainant has been duly served by the Station House Officer, Aluva East Police Station and memo to that effect has also been produced. Though notice has thus been duly served on R2, there is no appearance for that party. 4. The appellant herein has been arrayed as the sole accused in the instant FIR in Crime No.810/2020 of Aluva CRL.A.No.824/2020 (C) 3 East Police Station which has been registered for offence punishable under Sec.376(2)(n) of the IPC on the basis of the First Information Statement given by the 2nd respondent-lady _de-facto_ complainant on 6.6.2020 in respect of the alleged incident which happened on 27.5.2019. 5. The appellant has been arrested and remanded in this case on 2.10.2020 and his application for regular bail has been rejected by the Sessions court, Ernakulam as per the impugned Annexure-A1 order dated 22.10.2020 in Crl.M.C. No.1997/2020 filed by the appellant herein. Aggrieved by the impugned Annexure-A1 order, whereby his plea for regular bail has been rejected by the said Sessions Court, the appellant has filed the instant Crl.Appeal under Sec.14A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. As submitted herein, FIS has been lodged as late as on 6.6.2020 in respect of the alleged incident which happened on 27.5.2019 and the appellant has now suffered remand for the last 58 days after his arrest and remand on 2.10.2020. 6. The gist of the prosecution case is that on 27.5.2019 at about 10p.m., the appellant who had assured the 2nd CRL.A.No.824/2020 (C) 4 respondent/ _de-facto_ complainant that he would marry her and obtained her consent accordingly and had sexual intercourse with her in a hotel at Aluva and that the appellant knew that she belongs to scheduled caste community (‘Ullada’), etc. That later, she came to know that the appellant married another lady on 29.9.2020. 7. The appellant has raised a serious contention that there is a long and unexplained delay in lodging of the FIS as late as on 6.6.2020 in respect of the alleged incident which happened on 27.5.2019. Further, the appellant would also strongly urge that the abovesaid allegations are false and further that even if the allegations are assumed to be wholly correct, then the sexual incidents would have happened only on the basis of consent between two full grown adults. Therefore, it will not constitute the ingredients of the offence of rape as per Sec.375 of the IPC. In that regard, the appellant’s counsel would place reliance on various decisions of the Apex Court and of this Court, more particularly, the recent three judge bench decision rendered by the Apex Court in _**Pramod Suryabhan Pawar v. State of Maharashtra & Anr.**_ [2019 (9) SCC CRL.A.No.824/2020 (C) 5 608]. 8. Before dealing with the facts of the case, it will 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) CRL.A.No.824/2020 (C) 6 SCALE 64, the Apex Court has again highlighted about the substantial distinction between 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. 9. The said issue is the subject matter of the catena of CRL.A.No.824/2020 (C) 7 rulings of the Apex Court and various courts in decisions as in the judgment of the Division Bench of the Calcutta High Court in Jayanti Rana Panda v. State of West Bengal and anr. [1984 Crl.RJ 1535] =[1985 KHC 1148] where para No.7 thereof has dealt with the said issue and has held that for making out a case of alleged false promise which was subsequently breached so as to attract misconception of fact as understood in Sec.90 of the IPC to vitiate the consent for the sexual relationship, the prosecution should have a serious case that the accused had no intention of keeping the said promise right from the commencement of the relationship and that the failure to keep the promise to marry at a future uncertain date due to reasons that may not be very clear and by the passage of time may not amount to misconception of fact at the inception of the Act itself and in order to attract the concept of misconception of fact as undrestood in Sec.90 of the IPC, the said fact must have an immediate relevance and should be proximate in time. Further that if two full grown adults consent to enjoy each other’s company including sexual relationship on the alleged promise of marriage and continues to indulge in such activity CRL.A.No.824/2020 (C) 8 for quite some time, then said act needs to be construed essentially as an act made out of passionate desires and the promiscuity of two full grown adults and their desire to enjoy each other’s company including sexual relationship and it cannot that to be seen as an act induced by misconception of fact and that Sec.90 of the IPC cannot be called in aid such a case and unless court can be assured that for the very inception, the accused had never intended to marry her etc. 10. The said issue has also been a subject matter of consideration of a two Judge Bench decision of the Apex Court in Pramod Suryabhan Pawar v. State of Maharashtra [(2019) 9 SCC 608], Maheshwar Tigga v. State of Jharkhand [2020 (2) KLD 589 (SC)] etc. The said issue has been elaborately and exhaustively considered by their Lordships of the Supreme Court in the aforecited Pramod Suryabhan Pawar’s case (supra) [(2019) 9 SCC 608]. 11. It is pointed out that in the instant case, the alleged sexual incidents have happened as early as on 27.5.2019 and the marriage of the appellant with another woman is said to have taken place on 29.9.2020 and the 2nd respondent has no case that the appellant always had the dishonest intention to cheat CRL.A.No.824/2020 (C) 9 her right from the commencement of their relationship and that his assurance to marry her was made by him falsely right from the commencement of the relationship etc. Further that, the time gap between the alleged sexual incident which is said to have happened on 27.5.2019 and the incident of the marriage of the appellant with another woman as well as the lodging of the crime would show that there is no proximity or nexus so as to bring out a case of misconception of fact as understood in Sec.90 of the IPC so as to vitiate the consent. It is urged that it has been held that a mere failure to keep promise to marry on a future day due to reasons that may not be very clear does not amount to misconception of fact, as such misconception of fact should be at the inception of the Act itself etc. 12. It is pointed out that in the instant case, except the allegations of the solitary sexual incident on 27.5.2019, there are no other allegations to show that the consent was vitiated by misconception of fact. Hence, it is pointed out that even if it is assumed that the allegations of sexual incident are assumed to be correct, still the same would have happened only on the basis of consent between the parties. So the ingredients of the CRL.A.No.824/2020 (C) 10 offence of rape is not made out etc. 13. The abovesaid contentions of the appellant are totally disputed by the learned Prosecutor. 14. After hearing both sides, this Court is of the considered view that in view of the abovesaid contentions raised by the appellant, more particularly, about the delay in filing of the FIR as well as the issue regarding the consent and also the crucial fact that the appellant has already suffered remand in this case for 58 long days, the appellant has made out a strong probable case that his continued incarceration may not really be justified for effectuating the proper investigation in this case. The prosecution does not have any case that the appellant is likely to abscond, if he is granted bail or that he has bad antecedents etc. 15. Hence, this Court is of the considered view that discretion will be exercised to order the release of the appellant on regular bail, subject to strict conditions. In that view of the matter, it is ordered that the impugned order dated 22.10.2020 rendered by the Sessions court, Ernakulam in Crl.M.C. No.1997/2020 will stand set aside and it is CRL.A.No.824/2020 (C) 11 ordered that the appellant shall be released on bail on his executing bond for Rs.35,000/- and on his furnishing two solvent sureties for the like sum to the satisfaction of the competent court below, subject to the following conditions:- - 1) The appellant shall appear before the investigating officer on all 2[nd] and 4[th] Saturdays for a further period of 2 months and thereafter, he will appear before the investigating officer as and when directed by him. - 2) The appellant shall fully co-operate with the investigating officer. - 3) The appellant shall not visit or go anywhere near the residence or workplace of the 2[nd] respondent-lady defacto complainant until the conclusion of the trial in this case. - 4) The appellant shall not intimidate or attempt to influence the lady defacto complainant witnesses; nor shall he tamper with the evidence. - 5) The appellant shall not commit any offence while on bail. - 6) If there is any violation of the abovesaid conditions by the appellant, then the jurisdictional court concerned will stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time. CRL.A.No.824/2020 (C) 12 With these observations and directions, the above Criminal Appeal will stand finally disposed of. **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//20112020 CRL.A.No.824/2020 (C) 13 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE A1**|**ORIGINAL ORDER IN CRL.M.C.NO.1997 IN**| |---|---| ||**THE COURT OF SESSION, ERNAKULAM**| ||**DIVISION DATED 22/10/2020**| |**ANNEXURE A2**|**TRUE COPY OF THE MARRIAGE**| ||**CERTIFICATE ISSUED BY THE MARRIAGE**| ||**OFFICER, BALARAMAPURAM DATED 29TH**| ||**SEPTEMBER, 2020**| |**ANNEXURE A3**|**TRUE COPY OF THE MEDICAL CERTIFICATE**| ||**29.9.2020**| **RESPONDENTS' EXHIBITS: NIL**