Diljith V.B v. State of Kerala and De facto complainant

## **THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** ## **Crl.MC.No.4121 OF 2020(E)** **CRIME NO.25/2020 OF Shornur Police Station , Palakkad** ## **PETITIONER/ACCUSED:** **DILJITH V.B AGED 28 YEARS S/O.BHASKARAN, VADAKKINIYETH HOUSE, CHOLAKKULAM, SHORNUR, PALAKKAD.** **BY ADV. SMT.RAIHANATH T.H.** ## **- RESPONDENTS/STATE AND DE FACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE STATION HOUSE OFFICER, SHORNUR POLICE STATION, PALAKKAD DISTRICT. 2 XXX XXX** **BY ADVS. SRI.SANTHOSH PETER, PUBLIC PROSECUTOR SRI.BASIL PAUL-R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 4121 of 2020 2 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 4121 of 2020 -----------------------------------Dated this the 17[th] 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.A1 FIR and all further proceedings pursuant thereto.”_ 2. Heard Ms.T.H.Raihanath, learned counsel appearing for the petitioner/accused, Sri.Santhosh Peter, learned Public Prosecutor appearing for R1 State of Kerala and Sri.Basil Paul, learned counsel appearing for the respondent No.2 (lady _de facto_ complainant). 3. The petitioner herein has been arrayed as the sole accused in the impugned Anx.A1 FIR in Crime No.25/2020 of Shornur Police Station, which has been registered for offences punishable under Secs. 376(2)(n) and 506(i) of the IPC, on the basis of the First Information Statement given by the 2[nd] respondent–lady _de facto_ complainant on 06-02-2020 at about 5.00 p.m, in respect of the alleged incidents which happened for the period from 08-07-2017 to 08-11-2019. 4. The brief of the prosecution case is that, the Crl.M.C No. 4121 of 2020 3 petitioner/accused then aged about 30 years, who was having a love affair with the 2[nd] respondent lady _de facto_ complainant, then aged about 25 years and that the petitioner had assured her that he would marry her and based on the said assurance, they had sexual relationship for quite a long time at various places including hotel rooms and that he had taken her intimate pictures in the mobile phone and that later he had withdrawn his assurance to marry her, etc. Now it is submitted that the 2[nd] respondent has filed affidavit dated 25-09-2020, stating that the allegation in the impugned FIR was made by her out of the misunderstandings and that there was a love affair between them since they had known each other at Pune and that they had decided to marry with the consent of their parents and that they had sexual relationship based on the consent at various places at Mumbai, Goa, Pune, etc. The plea for quashment on the ground of settlement as made out in the said affidavit cannot be taken into account by this Court. 5. After hearing both sides and after going through the contents of Anx.A1 FIS, it is seen that the relationship was purely consensual in nature and even going by the prosecution case, there Crl.M.C No. 4121 of 2020 4 existed a love affair between the petitioner, who was then aged 30 years and the 2[nd] respondent, who was then aged 25 years and that they had sexual relationship at various places and that the main case of the 2[nd] respondent wherein is that, the petitioner had assured her that he would marry her and on the basis of this assurance she had agreed for the sexual relationship, etc and that later the petitioner had misused the relationship by threatening her, etc. 6. A reading of the FIS would make it clear that the relationship was on the basis of consent between two full grown adults and even if the allegations raised therein are correct, then amount of situation whereby the two full grown adults had entered into sexual relationship to enjoy each other’s company. Of course, there are allegations that the petitioner had threatened her by taking her intimate pictures etc. Further that later she came to know that the petitioner had an affair with some other lady and this is the basis for triggering the present FIS. 7. It will be pertinent to refer to the legal principles laid down by the Apex Court and various High Courts in the matter of substantial distinction between forcible sexual intercourse which Crl.M.C No. 4121 of 2020 5 constitute the offence of rape as per Sec. 375 of the IPC, which is punishable as per Sec.376 thereof, on the one hand 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 rape and consensual sexual relationship. In _**Shivshankar @ Shiva**_ Crl.M.C No. 4121 of 2020 6 _**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. 8. The Division Bench of Calcutta High Court in the decision in J _**ayanti Rani Panda v. State of West Bengal and another**_ . 1984 Crl.LJ 1535 = 1984 KHC 1148 has _inter alia_ held in para No.7 that the consent of the woman to have sexual relationship was Crl.M.C No. 4121 of 2020 7 obtained on the basis of misconception of fact as understood in Sec. 90 of the IPC. The prosecution should bring strong materials to show that the accused had no intention to keep the alleged promise to marry right from the commencement of the relationship and that the 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. That in order to come within the meaning of misconception of fact as understood in Sec. 9o of the IPC, the fact must have an immediate relevance. Further that, where two full grown adults continue to have an affair and have a relationship including sexual relationship for quite some time and indulge with that activity accordingly, it has to be essentially seen as an act out of their passionate affair and their promiscuity and also their desire to enjoy each other’s company and in such a case, criminal culpability cannot be fastened on the ground that the consent was obtained on the basis of misconception of fact pursuant to promise to marry etc, unless the Court can be assured that right from the very inception the accused never really intended to marry her. Crl.M.C No. 4121 of 2020 8 9. Going by the admitted case in Anx.A1 FIS, the sexual relationship was lasted for more than three years and that the alleged promise of marriage is said to have been made by 2016 and the allegation that the petitioner had withdrawn the promise to marry and that he was having a love affair with some other girl, etc is said to have been made three years thereafter. 10. In the instant case, it cannot be said that the consent of the woman to have sex was vitiated by misconception of fact as understood in Sec.90 of IPC. The alleged misconception of fact with regard to the alleged promise to marry does not appear to have proximity in time to the alleged subsequent incidents. 11. The learned Prosecutor was also requested to get instructions and it is submitted that the Investigating Officer conducted the detailed enquiry and the statement of the 2[nd] respondent was also taken therein and she has stated that later she had decided to marry the petitioner etc. 12. In the light of these aspects, this Court is of the considered view that the vital ingredients of the offence of rape are not made out in this case. In that view of the matter it is ordered that the 9 Crl.M.C No. 4121 of 2020 impugned Anx.A1 FIR in crime No.25/2020 of Shornur Police Station as against the petitioner/accused and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. 13. The petitioner will produce certified copy of this order before the Investigating Officer concerned 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. 4121 of 2020 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **CERTIFIED COPY OF CRIME NO.0025/2020 REGISTERED BY THE 1ST RESPONDENT DATED 06.02.2020.** **RESPONDENT'S/S EXHIBITS: NIL**