## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR**
**TUESDAY, THE 08TH DAY OF SEPTEMBER 2020 / 17TH BHADRA, 1942**
**Crl.Rev.Pet.No.1196 OF 2017**
**SC 673/2012 OF PRINCIPAL ASSISTANT SESSIONS COURT, THRISSUR CRIME NO.42/2012 OF GURUVAYOOR POLICE STATION, THRISSUR**
## **REVISION PETITIONER/S:**
**BABU @ NIVAS, AGED 45 YEARS, S/O. SUBRAMANIYAN, ARIKARA VEEDU, VAKKA DESOM, VAKKA P.O., VAZHAMMATTOM, THRISSUR DISTRICT.**
**BY ADVS. SRI.VIPIN NARAYAN SRI.C.JAYAKIRAN SRI.M.REVIKRISHNAN**
## **RESPONDENT/S:**
|**1**|**STATE OF KERALA**|
|---|---|
||**REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF**|
||**KERALA, ERNAKULAM.**|
|**ADDL.**|**USHA**|
|**R2**|**AGED 52 YEARS**|
||**W/O VENUGOPAL, KANDIYUR VEEDU, CHOONDAL DESOM,**|
||**CHOONDAL VILLAGE, THRISSUR DISTRICT-680502.**|
**(ADDL. R2 IS IMPLEADED AS PER ORDER DATED 18.12.2017 IN CRL.M.A.NO.6663/2017). R2 BY ADV. SRI.GRASHIOUS KURIAKOSE SR. R2 BY ADV. SRI.GEORGE MATHEWS R2 BY ADV. SRI.T.T.RAKESH**
## **OTHER PRESENT:**
## **SR.PP.B.JAYASURYA**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19-08-2020, THE COURT ON 08-09-2020 PASSED THE FOLLOWING:**
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## **ORDER**
Dated this the 8[th] day of September, 2020
The revision petitioner is the sole accused in SC No.673/2012 on the file of the Principal Assistant Sessions Court, Thrissur. This case arises from the final report in Crime
No.42/2012 of Guruvayoor Police Station filed by the Circle Inspector of Police, Guruvayoor before the Judicial First Class Magistrate Court, Chavakkad for the offence under Section
376 of the Indian Penal Code (hereinafter
referred to as “IPC”). The crime was
registered on the basis of a complaint filed by the _defacto_ complainant.
2. The prosecution case, in brief, is as
hereunder;
During the period from 26.01.2011 to 31.07.2011, the accused is alleged to have
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taken the _defacto_ complainant to a rented house and he has also deprived her of 80
sovereigns of gold ornaments promising to make
her a partner of his business. Further, the petitioner is alleged to have destroyed the evidence by selling her gold ornaments and thereby, committed the offences punishable under Sections 376, 420 and 201 of the IPC.
3. Heard Sri.Vipin Narayanan, the learned counsel for the revision petitioner, and Sri.B.Jayasurya, the learned Public Prosecutor.
4. The learned counsel for the revision
petitioner, Sri.Vipin Narayanan, submitted that the allegations against the revision petitioner in Annex.B FIR and Annex.C final report in Crime No.42/2012 of the Guruvayoor Police Station are groundless even if the statements of witnesses cited in the final report and the records relied on and produced
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along with the final report are accepted in toto.
5. A perusal of the final report would show that
14 witnesses are cited by the prosecution to prove the charges against the revision
petitioner. The _defacto_ complainant, aged about 49 yrs, married and having two children, is the alleged victim in this case. The _defacto_ complainant, in her First Information Statement, has stated that the petitioner, on 26.01.2011 during day time and on most Sundays
till July 2011, has committed rape in the
house named “Chathanath” near the North Nada,
Guruvayoor temple. The petitioner has also stated that she is running a beauty parlour
and has two children and the elder son is working in Ernakulam after completing MCA and the second son is studying in 10[th] standard. She also stated that her husband has been working in Saudi Arabia for the last 25 years.
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Her further case is that in the pretext of making her a partner in the kuri business, she was taken to a rented house near the North Nada, Guruvayoor temple and the accused committed rape on her. She further stated that
the revision petitioner had telephoned her on most Sundays and asked her to come to the same house and again raped her. According to her, she had handed over some gold ornaments for the purpose of the kuri company and those gold ornaments were neither returned nor was she made a partner in the kuri company.
6. The _defacto_ complainant's mother, uncle, son and husband are cited as charge witnesses 2 to
- 5 respectively. A bare perusal of the
statements of the above witnesses would show that they do not have direct contacts about any of the allegations and whatever spoken to by them is only hearsay information.
7. Charge witness Nos. 6 and 7 are the attesters
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to the scene mahazar and all the other charge witnesses are the official witnesses.
8. The petitioner filed Crl.M.C. No.447/2014 before this Court under Section 482 of the Code of Criminal Procedure seeking to quash Annex.B final report (Annex.C in this revision) and all further proceedings in SC No.673/2012 before the Principal Assistant Sessions Court, Thrissur. By the order dated 09.04.2014, this Court dismissed the Crl.M.C. reserving the liberty of the petitioner to move the appropriate court seeking discharge. Paragraphs 8, 9 and 10 of the judgment read as follows;
“8. True, the allegations contained in Annexure A are insufficient to prima facie attract offence of rape. There is nothing in Annexure A to show that there was forced sexual intercourse. However, the investigation has been conducted into the crime registered on the basis of the complaint filed by the first respondent and final report has also been laid. Going by the dictum laid down in **Jose Thettayil** v. **Station House Officer** (2013(3) K.L.T. 552), there may be some substance in the contention of the learned counsel for the petitioner that on the admitted facts, offence under Section
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376 of I.P.C. may not be attracted.
9. But as rightly pointed out by the learned counsel for the first respondent and the learned Public Prosecutor, if as a matter of fact the petitioner has a case that no offences are made out, the course open to the petitioner is to seek discharge from the court before which the matter is pending.
10. It is well settled that when statutory remedies are available to a person, exercise of power under Section 482 Cr.P.C. may not be proper.”
9. Annexure B FIR would show that there is no
statement by the _defacto_ complainant to the
effect that the alleged sexual acts were without her consent. The victim is aged 49
years, married and having two children. The
_defacto_ complainant stated that she knows the
petitioner and his family. There is nothing to
show, even assuming that there was sexual intercourse between the petitioner and the _defacto_ complainant, that the said act
amounted to rape as contemplated under law. The _defacto_ complainant/additional 2[nd] respondent is a lady aged 49 years with two children and it cannot be presumed that she
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did not know the consequences of going along with the petitioner and staying with him at
several places.
10.There is no statement or allegation to the effect that the petitioner had the intention to cheat the _defacto_ complainant from the inception. The description of the ornaments had not been given by the _defacto_ complainant. No date or period of time is stated as to when the ornaments have been given to the revision petitioner. Further, the gold ornaments have not been recovered by the police to substantiate the case of the _defacto_ complainant.
11.In view of the above facts and circumstances, there is absolutely no material on record to connect the petitioner with any of the offences alleged in the above case. The trial court, by order dated 14.08.2017, dismissed the application for discharge filed by the
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revision petitioner in Crl.M.P. No.161/2016 in SC No. 673/2012. On going through the order, it appears that the learned Assistant Sessions Judge has not taken into consideration Annex.A order of this Court in Crl.M.C. No.447/2014. A fair reading of the entire records of the case would _inter alia_ show that the alleged sexual act committed was one which was consensual and
the allegations in the case are insufficient to attract Sections 376, 420 and 201 of the IPC. Hence, the continuation of the
proceedings as against the revision petitioner will amount to clear abuse of process of court and would result in gross miscarriage of justice.
12.Judged by the above standards, it is only essential and expedient in the interest of justice to allow this Crl.R.P. and set aside the order dated 14.08.2017 in Crl.M.P. No.161/2016 in SC 673/2012 of the Court of the
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Principal Assistant Sessions Judge, Thrissur. Accordingly, the Crl.RP is allowed. The revision petitioner is discharged.
**Sd/-**
**N.ANIL KUMAR**
**JUDGE**
bka/-
