Eby Benny v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 23[RD] DAY OF FEBRUARY 2023 / 4TH PHALGUNA,** ## **1944** ## **CRL.A NO. 139 OF 2023** **ORDER DATED 12.1.2023 IN CRMC 2894/2022 OF SESSIONS** ## **COURT, ERNAKULAM** ## **APPELLANT/S:** EBY BENNY AGED 30 YEARS ILLICKAL HOUSE, ARUVAPPARA P.O KURUPPANPADI, PERUMBAVOOR ERNAKULAM DISTRICT, PIN - 683545 BY ADVS. ALIAS M.CHERIAN K.M.RAPHY BRISTO S PARIYARAM AJAI ALIAS CHALAPPURAM VIVEK RADHAKRISHNAN ARUN C.S. ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE KURUPPANPADI POLICE STATION, PERUMBAVOOR ERNAKULAM DISTRCIT, PIN - 683545 2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS. PUBLIC PROSECUTOR Shibu Varghese ## **OTHER PRESENT:** ## PP M.C.ASHI **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON** **16.02.2023, THE COURT ON 23.02.2023 DELIVERED THE FOLLOWING:** Crl.Appeal. No.139 of 2023 -2- ## **JUDGMENT** Dated this the 23[rd] day of February, 2023 The appellant is the first accused in Crime No.1009 of 2022 registered at the Kuruppanpadi Police Station for offences under Sections 376, 376(2)(n), 420, 307, 379 and 506 of Indian Penal Code r/w Section 3(2)(v), (3)(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 ('the SC/ST (PoA) Act' for short). The other accused in the crime is the appellant's father. 2. The crime is registered based on a complaint filed by the de facto complainant/second respondent raising the following allegations. The second respondent belongs to the Hindu Pulaya community and the accused persons are Christians. The second respondent is a married lady and had a son. Her husband abandoned her and her son committed Crl.Appeal. No.139 of 2023 -3- suicide. While she was living alone, the appellant befriended her and later had sexual intercourse with her by making a false promise of marriage. The affair continued for more than a year. While so, the second respondent came to know that the appellant is planning to marry another lady and the betrothal ceremony was to be held on 11.09.2022. On being questioned about this, the appellant said that he had consented for the betrothal at the insistence of his parents and the second respondent should come over and inform about their relationship to the proposed bride's family. Accordingly, on 11.09.2022, the second respondent reached the venue and showed some of her intimate photographs with the appellant to the proposed bride's relatives. Thereupon, they withdrew from the engagement. Thereafter, on 26.09.2022 at about 11.00 p.m, the de facto complainant reached the Crl.Appeal. No.139 of 2023 -4- appellant's house with a bottle of poison, since the appellant had told her that they will commit suicide together as his family will not permit them to live together. On the second respondent reaching the appellant's house, he came out and they went and sat near the Periyar Valley Canal. Then, at the instance of the appellant, second respondent took a gulp from the bottle containing poison. When the appellant tried to pour more poison into her mouth, she refused. According to the second respondent, after consuming the poison she was in a semi-conscious state. During that time, the appellant took off her gold bangle and left the place in her scooter. The second respondent somehow managed to reach the appellant's house and fell unconscious in the courtyard. From there, she was taken to the hospital and recovered after a few days. Thereafter, the second respondent went to the Crl.Appeal. No.139 of 2023 -5- police station and lodged the complaint. 3. Learned Counsel for the appellant contended that the allegations raised by the second respondent are patently false and illmotivated. Even if there was consensual sexual relationship between the parties, that cannot be termed as rape. The second respondent being a married lady, cannot allege that she was duped into having sex with the appellant. The Apex Court in _**Naim Ahamad v State (NCT of Delhi) [2023**_ _**SCC OnLine SC 89]**_ has held that it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence of rape. Similar view is taken by this Court in _**xxx v State of Kerala [2022 KHC 296**_ **]** . In _**Tino Thankachan v. State of Kerala [2022 (6) KLT**_ _**832**_ **],** this Court refused to believe the allegation of rape raised by a married lady, whose marriage was in subsistence even at the Crl.Appeal. No.139 of 2023 -6- time of the alleged rape. 4. It is contended that, for the mere reason that the second respondent belongs to Pulaya community, the consensual sex between the parties will not attract offences under SC/ST (PoA) Act. With respect to the offence under Section 307 IPC, the contention is that the medical records belies the claim of the second respondent, of having consumed poison. Reliance is placed on the decision in _**Prithvi Raj Chouhan v. Union of India and others [(2020) 4 SCC 727]**_ to contend that if a complaint does not make out _prima facie_ case, the bar created by Section 18 of the Act will not apply. Finally it is contended that the Sessions Judge had mechanically rejected the application for anticipatory bail, without considering any of the factual and legal contentions urged. 5. Learned Counsel for the second Crl.Appeal. No.139 of 2023 -7- respondent stoutly opposed the prayer for anticipatory bail and contended that the medical records sufficiently proves the veracity of the allegations. It is submitted that, after duping the second respondent into having sex with him, the appellant attempted to do away with her. Moreover, the prosecution having succeeded in making out a _prima facie_ case and the learned Sessions Judge having rightly rejected the bail application, no interference is warranted. 6. Learned Public Prosecutor opposed the prayer for bail, contending that any indulgence shown at this stage will hamper the investigation. Reference is made to Section 18 of the Act to contend that, even if it is possible to grant anticipatory bail, such power should be exercised sparingly and only in exceptional circumstances alone. **==> picture [416 x 42] intentionally omitted <==** Crl.Appeal. No.139 of 2023 -8- incorporation of the offence of rape. Admittedly, the second respondent is a married lady. The relationship between the parties had continued for more than a year, until the appellant consented to a proposal for marriage mooted by his parents. As held in the decisions cited by the appellants, every breach of promise to marry cannot be termed as a false promise, so as to prosecute a person for rape. At the same time, as regards the allegation that the appellant had tried to administer poison to the second respondent, the discharge summary dated 06.10.2022 issued from the Government Medical College, Ernakulam assumes relevance. Going by the discharge summary, the second respondent was admitted on 27.09.2022 and was discharged only on 06.10.2022. The medicines administered to the second respondent also indicate that the second respondent was treated for consumption of Crl.Appeal. No.139 of 2023 -9- poison. Being so, the veracity of the allegation that the appellant had attempted to commit murder by administering poison to the second respondent has to be investigated, for which he will have to be interrogated. Section 3(2)(v) of the SC/ST (PoA) Act is attracted if a person commits any offence punishable with imprisonment for a term of ten years or more. The offence under Section 307 IPC punishable with imprisonment for a term of ten years or more is also included. Hence, it cannot be held that even a prima facie case under the SC/ST (PoA) Act is made out. For the aforementioned reasons, the appeal is dismissed. The appellant shall appear before the investigating officer on 27.02.2023 at 10.30 a.m. The investigating officer shall thereupon interrogate the accused and make arrangements for conducting his potency test at the earliest. After completing all formalities, the appellant Crl.Appeal. No.139 of 2023 **==> picture [23 x 9] intentionally omitted <==** shall be produced before the Sessions Court. On such production, the appellant can move an application for bail before the Sessions Court. Sd/- **V.G.ARUN JUDGE** Scl/ Crl.Appeal. No.139 of 2023 -11- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |ANNEXURE A1|COPY OF THE PHOTOGRAPHS UPLOADED BY THE DE<br>FACTO COMPLAINANT| |---|---| |ANNEXURE A2|COPY OF THE FACEBOOK HOMEPAGE OF THE DE<br>FACTO COMPLAINANT| |ANNEXURE A3|A TRUE COPY OF THE FIRST INFORMATION<br>REPORT NO.1009 OF 2022 DATED 06/12/2022<br>ALONG WITH THE FIRST INFORMATION STATEMENT<br>REGISTERED ON THE FILE OF KURUPPUMPADI<br>POLICE STATION| |ANNEXURE A4|A TRUE COPY OF THE REPORT DATED 6/12/2022<br>IN CRIME NO.1009/2022 SUBMITTED BY THE<br>FIRST RESPONDENT BEFORE THE JUDICIAL FIRST<br>CLASS MAGISTRATE COURT III, PERUMBAVOOR<br>REGISTERED ON THE FILE OF KURUPPUMPADI<br>POLICE STATION| |ANNEXURE A5|A CERTIFIED COPY OF THE ORDER DATED<br>12/01/2023 IN CRL.M.C NO.2894/2022 PASSED<br>BY THE SESSIONS COURT, ERNAKULAM IN CRIME<br>NO.1009/2022 ON THE FILE OF KURUPPANPADI<br>POLICE STATION, ERNAKULAM DISTRICT.|