Georgekutty v. State of Kerala (and de facto complainant)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 28TH DAY OF SEPTEMBER 2020 / 6TH ASWINA, 1942** ## **Crl.MC.No.8856 OF 2019(F)** **CRIME NO.1899/2019 OF KOTTARAKKARA POLICE STATION, KOLLAM** ## **PETITIONER/ACCUSED:** **GEORGEKUTTY, AGED 41 YEARS, S/O. ISAK, VAROOR VEEDU, PERINGALLOOR WARD, AYOOR VILLAGE, EDAMULACKAL, KOLLAM DISTRICT.** **BY ADV. SRI.NIREESH MATHEW** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031.** **2 XXXXXXXXXX (VICTIM) XXXXXXXXXX** **R2 BY ADV. SRI.SEBIN SEBASTIAN** ## **OTHER PRESENT:** **SRI.RAMESH CHAND, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.8856 OF 2019(F) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C. No.8856 of 2019(F) ---------------------------------------------Dated this the 28[th] day of September, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous case filed under Sec.482 of the Code of Criminal Procedure (Cr.P.C.) is as follows:- _"…......... to pass an order quashing all proceedings in Annexure A FIR and all further proceedings in Crime No.1899/2019 of Kottarakkara Police Station, Kollam District, by allowing this Crl.M.C., to secure the ends of justice."_ 2. Heard Sri.Nireesh Mathew, learned counsel appearing for the petitioner (sole accused), Sri.Ramesh Chand, learned Public Prosecutor, appearing for the 1[st] respondentState of Kerala and Sri.Sebin Sebastian, learned Advocate appearing for the contesting respondent No.2 (lady _de facto_ complainant). 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Annexure A FIR in crime No.1899/2019 of Kottarakkara Police Station, which has been Crl.MC.No.8856 OF 2019(F) 3 registered on 27.06.2019 at about 4.45 p.m. on the basis of the First Information Statement given by the 2[nd] respondent (lady _de facto_ complainant) on the same day in respect of the alleged incidents happened for the period from 14.02.2016 to 19.06.2019. It is now apprised this Court that the investigation in this case has not been completed and final report also has not been filed. The learned counsel for the petitioner and the learned counsel for the 2[nd] respondent would submit that the 2[nd] respondent has now filed Annexure B notarized affidavit dated 05.10.2019 stating that the entire disputes between the petitioner and the 2[nd] respondent have been resolved and that the 2[nd] respondent is not interested to continue the impugned criminal proceedings any longer and further that the 2[nd] respondent all through out knew right from the commencement of their relationship that the petitioner was already married and having children, etc. One of the main contentions urged by the petitioner is that even if the entire allegations raised by the 2[nd] respondent in Annexure A FIR and FIS are assumed to be correct, then the alleged sexual incidents would have happened only on the basis of the consent of the parties and therefore, the Crl.MC.No.8856 OF 2019(F) 4 vital offence of forcible sexual intercourse of rape as per Sec.376 of the I.P.C. is not made out in this case, etc. 4. It is by now well settled that it may not be right and proper for this Court to quash serious and grave offence of rape as per Sec.376 of the I.P.C solely on the ground of settlement between the parties [see _**Shimbhu v. State of Haryana**_ (2014) 13 SCC 318, _**Parbatbhai Aahir v. State of Gujarat**_ (2017) 9 SCC 641, **Anita Maria Dias v. State of Maharashtra,** (2018) 3 SCC 290, **Sebastian @ Solly v. State of Kerala,** 2015(1) KLJ 384, etc.]. However, the main ground urged by the petitioner is that even going by the admitted prosecution materials, more particularly, Anx-A FIS given by none other that the lady _de facto_ complainant, it can be seen that the alleged sexual incidents would have happened only on the basis of the consent of the parties and does not constitute the vital ingredient of the offence of rape as per Sec.376 of the I.P.C. 5. In the present factual scenario, it will be pertinent to refer to the legal principles laid down by the Apex Court and various High Courts including this Court in the matter of Crl.MC.No.8856 OF 2019(F) 5 distinction of rape as per Sec.376 I.P.C 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**_ , [(2003) 4 SCC 46] and _**Deelip Singh @Dilip Kumar v. State of Bihar**_ [(2005) 1 SCC 88], wherein 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.**_ , [2019 (1) SCALE 64], the Apex Court has again highlighted about the substantial distinction between rape and consensual sexual relationship. In _**Shivshankar @ Shiva v. State of Karnataka & another**_ (judgment dated Crl.MC.No.8856 OF 2019(F) 6 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. 6. It has also been held by the Division Bench of the Calcutta High Court in the judgment in _**Jayanti Rani Panda v. State of West Bengal & Another**_ [1984 Criminal Law Journal 1535 = 1984 KHC 1148 (para 7)] that even if there is a case of promise said to have been made by the accused to the Crl.MC.No.8856 OF 2019(F) 7 lady to marry her, there has to be strong materials to hold that the accused had no intention of keeping that promise at that time and that the failure to keep the promise to marry at a future uncertain date due to reasons not clear from the materials does not always amount to misconception of fact as per Sec.90 of the I.P.C. at the inception of the act itself. That, in order to come within the meaning of misconception of fact as per Sec.90 of the I.P.C., the said fact must have an immediate relevance that when two full grown adults continue to indulge in sexual activity, it has to be held that it is an act of promiscuity on their part and not an act on the lady by misconception of facts in terms of Sec.90 of the I.P.C. and that Sec.90 of the I.P.C. cannot be called in aid in such a case unless there are materials to hold that from the very inception the accused never really intended to marry her, etc. 7. Now, it is pertinent to refer to the factual aspects projected in Annexure A FIS. The case of the 2[nd] respondent is to the effect that she was then aged about 26years and that she had completed B.Sc. Nursing course and also she was having a job at Bangalore. In the year 2014, while she was studying B.Sc. Crl.MC.No.8856 OF 2019(F) 8 Nursing at Bangalore she became acquainted with and fell in love with the petitioner, who then aged about 38 years, and the petitioner told her that he wants to marry her. That, on 14.02.2016 he had taken her to a church near Kollam and exchanged rings and thereafter the petitioner had taken her to his own house at Vaikom, where they had stayed for 2-3 days and had sexual relationship and later she returned to Bangalore. Thereafter they had sexual relationship on quite a few occasions. Later, she came to know that the petitioner was already married and is having two children and that some small issues had then occurred between them. Thereafter her relationship with the petitioner was broken and the petitioner stopped telephoning her. Later, her parents had proposed her second marriage with another person called Joy and that the petitioner had intervened in the matter. That, the petitioner had them assured her that he would conduct their register marriage and that the petitioner had not kept his promise. That the petitioner later used to intimate photographs and started threatening her. It is also stated that the petitioner had assured her that he would secure divorce from his first wife and then Crl.MC.No.8856 OF 2019(F) 9 marry the 2[nd] respondent, on the basis of which promise they had entered into sexual relationship. Certain incidents regarding alleged threatening of the petitioner by using Youtube picture, etc., are also made therein. 8. From a reading of the FIS it can be seen that according to the 2[nd] respondent, she was taken to a church in Kollam and the petitioner had exchanged rings. An educated lady like the 2[nd] respondent, then aged more than 27 years cannot take the view that through this process, the petitioner had married her, etc. Further, the 2[nd] respondent would state that later she came to know that the petitioner has already married and is having children, etc. and that at that time small issues had occurred between them. The way the case set up in the first page of the FIS would give an impression as if the 2[nd] respondent was thoroughly surprised and felt cheated when she came to know about the fact that the petitioner was already married and is having children. Whereas, it is stated further that though the love affair had continued even after coming to know of the marriage of the petitioner with another lady, later they had again sexual relationship, etc. It is further stated in Crl.MC.No.8856 OF 2019(F) 10 page No.2 of the FIS that the petitioner had assured her that he would divorce his first wife and then marry the 2[nd] respondent and it is on this account that they had sexual relationships constantly. 9. Taking into account these contradictory versions in page Nos.1 & 2 of the FIS, it can be seen that this probablises the case of the petitioner that all through out the 2[nd] respondent knew that the petitioner was a married man and is having children, etc. That apart, even going through the case of the 2[nd] respondent that she was not thoroughly surprised, etc. and felt cheated when she came to know about the first marriage of the petitioner, etc. yet what is stated is that small issues had occurred between them when she came to know about the first marriage of the petitioner. An overall reading of the FIS would give the impression that even after coming to know of the marriage of the petitioner, the 2[nd] respondent has continued to have sexual relationship with the petitioner on the ground that he had assured that he would divorce his first wife and then marry the 2[nd] respondent. Such a promise made by a married man to an unmarried lady that he Crl.MC.No.8856 OF 2019(F) 11 would divorce his first wife and then marry the latter, cannot be said to be a legally enforceable promise and such a promise is also not enforceable as it is against public policy. So, even if the 2[nd] respondent was not aware of the marriage of the petitioner with another lady during the first phase of their relationship, the subsequent admitted conduct of the 2[nd] respondent in having continued their sexual relationship with the petitioner solely on the ground of the alleged promise said to have been made by him that he would divorce his first wife and marry the 2[nd] respondent, etc. cannot be said to be the basis for alleging that the consent of the 2[nd] respondent has been obtained on the basis of misconception of fact as understood in Sec.90 of the I.P.C. On the other hand, the overall conduct of the parties would give rise to a definite view that the alleged sexual incidents, if proved, would have happened predominantly only on the basis of consent of two grown up adults, who have acted upon their passions and out promiscuous relationship. Though, Annexure B affidavit cannot be the basis of quashing the impugned criminal proceedings on the ground of settlement between the parties, one aspect of the matter which is borne out Crl.MC.No.8856 OF 2019(F) 12 from the said affidavit is that the 2[nd] respondent has clearly stated therein that she was aware all through out that the petitioner was married and he had children, etc., at the initial time itself. 10. At this juncture, taking into consideration the totality of the overall factual scenario involved in this case, this Court is constrained to take the view that it cannot be said that the consent of the lady was obtained on the basis of misconception of facts as per Sec.90 of the I.P.C. and the alleged sexual incidents, if proved, would have predominantly happened only on the basis of consent between the parties. Hence the vital ingredients of the offence of rape as per Sec.376 of the I.P.C. are not made out in the instant case. So, the initiation or atleast continuance of the impugned criminal proceedings is an abuse of the process of Court and would amount to wastage of precious time of the courts as well as the prosecution and police missionaries. 11. In the light of all these aspects, it is ordered that the impugned Annexure A FIR in crime No.1899/2019 of Kottarakkara Police Station, Kollam District, in which the Crl.MC.No.8856 OF 2019(F) 13 petitioner herein has been arrayed as the sole accused and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. The petitioner will produce certified copies of this order before the Judicial First Class Magistrate Court-I, Kottarakkara, as well as 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** Skk//14092020 Crl.MC.No.8856 OF 2019(F) 14 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A TRUE PHOTOCOPY OF THE FIRST INFORMATION REPORT DATED 27.06.2019 IN CRIME.NO.1899/2019 OF KOTTARAKKARA POLICE STATION. ANNEXURE B THE NOTARIZED COPY OF THE AFFIDAVIT DATED 05.10.2019 EXECUTED BY THE 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL**