CRL.M.C Nos. 5784/2022, 5759/2022 and 5816/2022 v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH** **FRIDAY, THE 2[ND] DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944** **CRL.MC NO. 5784 OF 2022** **CRIME NO.314/2022 OF Thiruvalla Police Station,** **Pathanamthitta** ## **PETITIONER/ACCUSED:** XXXXXXXXXX BY ADVS.T.P.PRADEEP P.K.SATHEES KUMAR MINIKUMARY M.V., R.K.PRASANTH JIJO JOSEPH ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682031 2 XXXXXXXXXX BY ADV UNNI. K K(EZHUMATTOOR) SRI. P.G. MANU, SR. PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.12.2022, ALONG WITH Crl.MC.5759/2022, 5816/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.Nos. 5784, 5759 & 5816 of 2022 -:2:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 2[ND] DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944 CRL.MC NO. 5759 OF 2022** **CRIME NO.907/2022 OF Thiruvalla Police Station,** ## **Pathanamthitta** ## **PETITIONER/ACCUSED:** XXXXXXXXXX BY ADVS.T.P.PRADEEP P.K.SATHEES KUMAR, MINIKUMARY M.V. R.K.PRASANTH, JIJO JOSEPH ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682031 2 XXXXXXXXXX BY ADV UNNI. K K(EZHUMATTOOR) SMT. T.V. NEEMA, SR. PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.12.2022, ALONG WITH Crl.MC.5784/2022 AND CONNECTED CASE, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.Nos. 5784, 5759 & 5816 of 2022 -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH FRIDAY, THE 2[ND] DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944 CRL.MC NO. 5816 OF 2022** **CRIME NO.2353/2021 OF Thiruvalla Police Station,** ## **Pathanamthitta** ## **PETITIONER/ACCUSED:** XXXXXXXXXX BY ADVS.T.P.PRADEEP P.K.SATHEES KUMAR, MINIKUMARY M.V. R.K.PRASANTH, JIJO JOSEPH ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682031 2 XXXXXXXXXX BY ADV UNNI. K K(EZHUMATTOOR) SRI. P.G. MANU, SR. PP THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.12.2022, ALONG WITH Crl.MC.5784/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.Nos. 5784, 5759 & 5816 of 2022 ## -:4:- ## **O R D E R** Dated this the 2[nd] day of December, 2022 The accused and the victim in all the above three Crl.M.Cs are one and the same. The allegations in all these cases are also identical. All the cases are settled between the parties. Hence, I am disposing of all these cases together. 2. I am referring the parties as the accused and the victim. Admittedly, the accused and the victim are married and having children. Both of them were not in good terms with their respective spouses. Both of them fell in love, visited so many places all over the country, stayed in lodges and also lived together in rental house for months and had consensual sexual intercourse. It appears that, thereafter, the relationship got strained which led to the institution of three crimes which are the subject matter of the above three Crl.M.Cs. 3. Crl.M.C No.5816/2022 pertains to Crime No. Crl.M.C.Nos. 5784, 5759 & 5816 of 2022 -:5:- 2353/2021 of Thiruvalla Police Station. The offences alleged therein are punishable under Sections 366, 376(2) (n), 403 and 420 of IPC. The prosecution allegation therein is that, the accused, after giving false promise of marriage to the victim, conducted a namesake 'Thalikettu' at the temple, had physical relationship with her on several occasions and further obtained gold ornaments and money from her and thereafter, withdrew from the promise and thus cheated her. 4. Crl.M.C.No.5784/2022 pertains to Crime No.314/2022 of Thiruvalla Police Station. The offences alleged are punishable under Sections 450, 341, 323, 376(2)(n), 195A and 506 of IPC. The prosecution allegation therein is that, the accused and his wife trespassed into the hotel room of the victim where she and her children resided and threatened her to withdraw the case registered against the accused and thereafter, the accused committed rape on her, threatened her and obtained signature in an affidavit to withdraw the case. 5. Crl.M.C.No.5759/2022 pertains to Crime No.907/2022 of Thiruvalla Police Station. The offences alleged are punishable Crl.M.C.Nos. 5784, 5759 & 5816 of 2022 -:6:- under Sections 376(2)(n), 323 and 506 of IPC. The prosecution allegation therein is that the accused after giving false promise of marriage to the victim, enticed her to the lodge and committed sexual intercourse and thereafter assaulted her. 6. I have heard Sri. T.P. Pradeep, the learned counsel for the accused, Sri.Unni K.K., the learned counsel for the victim and Smt.T.V. Neema, the learned Senior Public Prosecutor. 7. The victim entered appearance through counsel and an affidavit had been sworn in by her. The averments in the petition as well as the affidavit sworn in by the victim would show that the entire dispute between the parties has been amicably settled and the victim had decided not to proceed with the crime any further. The learned Prosecutor, on instruction, submits that the matter was enquired into through the investigating officer and a statement of the victim was also recorded wherein she reported that the matter was amicably settled. 8. It is true, in all the cases offence under Section 376 is alleged. However, a perusal of the FIS as well as the materials collected would show that the offence punishable under Section Crl.M.C.Nos. 5784, 5759 & 5816 of 2022 -:7:- 376 of IPC is not attracted. As stated already, the accused and the victim are married persons. A reading of the FIS would show that the accused and the victim went to several places, resided together in lodges and had consensual sex. It would further show that both of them lived together in two rented houses for months and had consensual sex. It is true, in one of the cases (Crime No.314/2022) there is an allegation of forceful sex. However, on evaluation of the entire case of the victim and on a reading of the entire records, it would show that the sex the victim had with the accused was purely consensual in nature. She alleges that she consented for sex persuaded by the false promise of marriage given by the accused. Recently, this Court in _**XXX v** ._ _**State of Kerala**_ (2022 KHC 296) has held that the promise 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. Such an unenforceable and illegal promise cannot be a basis for the prosecution under Section 376 of IPC. Here, no question of promise to marry arise, since, the victim is a married woman and the accused is a married man and she knew Crl.M.C.Nos. 5784, 5759 & 5816 of 2022 -:8:- that legal marriage with the petitioner was not possible under the law. Hence, the basic ingredients of Section 376 of IPC are not attracted. That apart, the entire dispute between the parties is already settled. For the reasons stated above, no purpose will be served in proceeding further against the accused. Accordingly, above three Crl.M.Cs are allowed. All further proceedings pursuant to Crime Nos.314/2022, 907/2022 and 2353/2021 of Thiruvalla Police Station hereby stands quashed. **Sd/-** ## **DR. KAUSER EDAPPAGATH** **JUDGE** ## **kp** Crl.M.C.Nos. 5784, 5759 & 5816 of 2022 -:9:- ## **APPENDIX OF CRL.MC 5784/2022** PETITIONER ANNEXURES Annexure A1 THE CERTIFIED COPY OF THE FIR NO.314/22 OF THIRUVALLA POLICE STATION DATED 28/2/2022 Annexure A2 TRUE COPY OF THE AFFIDAVIT SWORN BY THE DEFACTO COMPLAINANT DATED 1/7/2022 Crl.M.C.Nos. 5784, 5759 & 5816 of 2022 -:10:- ## **APPENDIX OF CRL.MC 5759/2022** PETITIONER ANNEXURES Annexure A1 THE CERTIFIED COPY OF THE FIR NO.907/22 OF THIRUVALLA POLICE STATION DATED 15/5/2022 Annexure A2 TRUE COPY OF THE AFFIDAVIT SWORN BY THE DEFACTO COMPLAINANT DATED 1/7/2022 Crl.M.C.Nos. 5784, 5759 & 5816 of 2022 -:11:- ## **APPENDIX OF CRL.MC 5816/2022** PETITIONER ANNEXURES Annexure A1 THE CERTIFIED COPY OF THE FIR NO.2353/22 OF THIRUVALLA POLICE STATION DATED 20/11/2021 Annexure A2 TRUE COPY OF THE AFFIDAVIT SWORN BY THE DEFACTO COMPLAINANT DATED 1/7/2022