Binu Mathai v. The State of Kerala & Kanchana

Crl.MC No.7967 of 2018 1 IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 14[TH] DAY OF DECEMBER 2021 / 23RD AGRAHAYANA, 1943 CRL.MC NO. 7967 OF 2018 CRIME NO.668/2018 OF Chittar Police Station, Pathanamthitta PETITIONER/SOLE ACCUSED: BINU MATHAI, AGED 47 YEARS S/O MATHAI MATHAI, AGED 47 YEARS, RESIDING AT PATHALIL, PAMPINI, CHITTAR P.O, CHITTAR VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT. BY ADVS. MANU RAMACHANDRAN SRI.M.KIRANLAL SRI.T.S.SARATH SRI.R.RAJESH (VARKALA) ## RESPONDENTS/STATE & DE FACTO COMPLAINANT: 1 THE STATE OF KERALA, THROUGH THE SUB INSPECTOR OF POLICE, CHITTAR POLICE STATION, PATHANAMTHITTA DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 KANCHANA, AGED 42 YEARS, D/O.GOWRI, RESIDING AT VALLIPARAMBIL VEEDU, MEENKUZHI, VAYYATTUPUZHA MURI, CHITTAR VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT, PIN-689663. R1 BY SRI.ARAVIND V. MATHEW, PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.12.2021, THE COURT ON 14.12.2021 PASSED THE FOLLOWING: CRL.MC No.7967 of 2018 2 ## O R D E R The petitioner is the sole accused in Crime No.668/2018 of Chittar Police Station, Pathanamthitta District. The offences alleged against the petitioner are under Sections 376, 420 and 406 of the Indian Penal Code (IPC) and under Section 3(2)(v) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short SC/ST Act). 2. This Criminal Miscellaneous Case is filed to quash Annexure A1 F.I.R. which was registered for the offences mentioned above. 3. The aforesaid crime was registered on the basis of a complaint submitted by the 2[nd] respondent herein which contains the following allegations: The petitioner herein by making false promise to the 2[nd] respondent that he will marry her, had sexual intercourse with her while they were living together in various rental houses for a period of 12 years. It was further stated by the de facto complainant that she belongs to Scheduled Caste CRL.MC No.7967 of 2018 3 community whereas the petitioner belongs to Christian community. It was also contended that he had misappropriated certain amounts which were procured by taking a loan in the name of the defacto complainant and also taken away three sovereigns of gold. It was contended that all these acts were committed by the petitioner under the pretext that he will marry her and later he deserted the de facto complainant and in such circumstances, the above complaint was submitted. It is also discernible from the said statement of the de facto complainant that, at the time when they started residing together, the de facto complainant as well as the petitioner were having subsisting marriages. 4. The case of the petitioner is that none of the offences alleged against him are sustainable. According to him, as regards to the offences alleged against him under Section 376, it cannot be contended that, the sexual intercourse committed by him with the de facto complainant is without her CRL.MC No.7967 of 2018 4 consent. The allegation that the consent was obtained by making a false promise of marriage is not sustainable because as both the parties were already married and the relationship commenced thereafter and there was no scope for any misconception as to a valid marriage being conducted between the parties, on account of already existing marriages of the respective parties. With regard to the allegation under Sections 420 and 406 of IPC, it was contended that they have already resided for a period of 12 years and all the transactions which were mentioned in the statement were occurred during the course of their living-in-relationship. In such circumstances, there was no intention to commit such offence could be gathered from such acts. 5. The learned counsel relies on the judgments reported in Dhruvaram Murlidhar Sonar v. The state of Maharashtra and Ors.[2019(1)KHC 403], Uday v. State of Karnataka [(2003)4 SCC 46], Jinu Thomos v. State of Kerala & Others [2018(3) KHC 263] and CRL.MC No.7967 of 2018 5 Shivashankar @ Shiva v. State of Karnataka & Another [Special Leave to Appeal (Crl)No.454/2017] . 6. Learned Public Prosecutor seriously opposes the said prayer. Even though notice was served upon the 2[nd] respondent, there is no appearance for her. 7. The first contention put forward by the learned counsel is with regard to the sustainability of allegation of the offence under Section 376 of IPC. The learned counsel would point out that the offence of rape would be attracted only if the sexual intercourse was done without the consent of the alleged victim. In this case, the 2[nd] respondent was a matured lady who had already married and was having major children. The learned counsel brought my attention to Section 90 of IPC which reads as follows: _S.90. Consent known to be given under fear or misconception.- A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception.”_ As per the said provision, a consent given by a person under fear of injury or under misconception CRL.MC No.7967 of 2018 6 of fact, cannot be treated as a valid consent. In this case, there are no circumstances which lead to the conclusion that the consent alleged to have been obtained by the petitioner is based on misconception. I find some force in the said contention. The allegation of the 2[nd] respondent is that, the petitioner had made a false promise to the second respondent that he would marry her. As pointed out by the learned counsel for the petitioner, at the relevant time, both the parties were in subsisting marriage with their respective partners, though living separately. There was no scope for a valid marriage being performed between those parties as both of them were not competent to enter into a valid marriage for the second time. In such circumstances, there was no scope for any misconception as to the proposed marriage. In such circumstances, it cannot be concluded that the consent given by the second respondent to have sexual intercourse was under a misconception of fact. CRL.MC No.7967 of 2018 7 8. The above view is fortified because of the long duration of living-in-relationship between the parties. Going by the contents of the statement, it is discernible that both of them have lived together at various residential buildings which they have taken for rent for a period of 12 years. In Uday’s case (supra), the Hon’ble Supreme Court was pleased to observe as follows: _Para.21: It therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them._ _Para.22: xxx xxx xxx xxx_ _Para.23:Keeping in view the approach that the Court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown up girl studying_ CRL.MC No.7967 of 2018 8 _in a college. She was deeply in love with the appellant. She was however aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to it. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily, and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.”_ The said judgment was rendered by the Hon’ble Supreme Court in a case in which the prosecutrix who was aged 19 years, had given consent for sexual intercourse with a person with whom she was deeply in love, on a promise that, he would marry her on a later date. The aforesaid principles were reiterated by the Hon’ble Supreme court in Dhruvaram Murlidhar Sonar’s case(supra). In Shivashankar’s case(supra) the Hon’ble Supreme Court was pleased to hold that the sexual intercourse in the course of a relationship which has continued for 8 years cannot be treated as a CRL.MC No.7967 of 2018 9 rape especially because of the averment that they lived together just like a husband and wife. In this case, the factual scenario is exactly the same as contained in the case of Shivashankar’s case (supra). The only difference is that the period of living-in-together in the said case was 8 years, and the period is much longer in this case ie.12 years. In Jinu Thomos’s case(supra), the learned Single Judge of this Court passed an order quashing the proceedings in a similar case where the parties in a living-in-relationship. Even though the allegation in the said case was that the consent was obtained on the basis of a promise of marriage, it was held that no offence of rape is made out. In the light of the judicial precedents, it is evident that the offence of rape as alleged in this case is not attracted. There are several factors which prompt this court to arrive at the said conclusion ie; _i) The 2[nd] respondent was already married and was a major lady with major children at the time of relationship commenced;_ CRL.MC No.7967 of 2018 10 _ii) Both the parties were already in a subsisting marriages while they started the relationship and hence there was no scope for any misconception as to the alleged proposed marriage;_ _iii) Even according to the 2[nd] respondent_ _they lived together just like a husband and wife for a period of 12 years._ In such circumstances, I have no hesitation to conclude that the offence under Section 376 is not attracted. 9. With regard to offence under the provisions of SC/ST Act i.e Section 3(2)(v), the said offence is attracted only because of the fact that, an offence which is punishable with imprisonment of more than 10 years is alleged against the petitioner and the said offence was allegedly committed by the petitioner with the knowledge that the 2[nd] respondent was a person belongs to SC community. Since I have already found that Section 376 of IPC is not attracted, the aforesaid offence is also to be quashed and I do so. CRL.MC No.7967 of 2018 11 10. Now the remaining offences are under sections 406 and 420 of IPC. The basic allegation which constitute the said offences is that, during the course of their relationship, the 2[nd] respondent was persuaded to take a loan in her name and the same was misappropriated by the petitioner herein. There is also an allegation of misappropriation of gold ornaments as well. Even though the learned counsel for the petitioner vehemently contends that all those transactions took place during the course of living-in relationship between the parties, and the amounts were spent for benefit of both the said parties, I am unable to consider the said contention at this point of time. This is particularly because, it is question of fact, which has to be investigated by police. In this proceeding, the challenge is against the FIR alone and it would be premature to entertain the said challenge at the moment. Further, as there is specific allegation of misappropriation of amounts and cheating, an interference by this court, at CRL.MC No.7967 of 2018 12 this juncture would not be proper, as it would deprive the police and the defacto complainant to produce evidence, if any, in support of the said allegations. On the other hand, the defenses available to the petitioner with respect to the aforesaid offences would still be available to him, even in the further proceedings of the matter. Hence, I am not inclined to entertain the prayer to quash Annexure A1 FIR as regard to the offences under section 420 and 406 of Indian Penal Code. In such circumstances, the Crl.M.C. is partly allowed with the following findings and directions; i) Annexure A1 F.I.R. (Crime No 668/2018 of Chittar Police Station) and all further proceedings pursuant to the same, to the extent of incorporating the offences under section 376 of the Indian Penal Code and also under section 3(2)(v) of Scheduled Caste and Scheduled Tribes(Prevention of Atrocities)Act, 1989, are hereby quashed. ii) The Police shall be entitled to continue the investigation on the Annexure A1 FIR, in CRL.MC No.7967 of 2018 13 respect of the offences under Sections 420 and 406, or any other offences. Sd/ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.7967 of 2018 14 ## APPENDIX OF CRL.MC 7967/2018 PETITIONER’S ANNEXURE: ANNEXURE A1 THE CERTIFIED COPY OF THE FIR IN CRIME NO.668/2018 OF CHITTAR POLICE STATION, PATHANAMTHITTA DISTRICT. //TRUE COPY// Sd/- P.S. to JUDGE