Hariprasad P.R. v. State of Kerala and Snehapriya

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 16TH DAY OF DECEMBER 2019 / 25TH AGRAHAYANA, 1941** ## **Bail Appl..No.8684 OF 2019** **Crime No. 670/2019 of Alangad Police Station, Ernakulam** ## **PETITIONER/S:** **HARIPRASAD P.R. AGED 25 YEARS S/O. RAJENDRAN P.M, PUTHUVALNIKATHIL, MEKKAD P.O, ANGAMALI, ENAKULAM 683589** **BY ADVS. SRI.P.A.MOHAMMED SHAH SRI.SOORAJ T.ELENJICKAL SRI.K.ARJUN VENUGOPAL** ## **RESPONDENT/S:** **1 STATE OF KERALA THROUGH THE STATION HOUSE OFFICER, ALANGAD POLICE STATION, ERNAKULAM DISTRICT, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KEERALA, KOCHI 682 031.** **2 SNEHAPRIYA SOUGHT TO BE IMPLEADED** **R2 BY ADV. K.K.JYOTHILAKSHMY R2 BY ADV. SRI.SUJESH J.MATHEW** ## **OTHER PRESENT:** **SRI.AMJAD ALI, PUBLIC PROSECUTOR, SMT.K.K.JYOTHILAKSHMY FOR THE DEFCTO COMPLAINANT** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 16.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Bail Appl..No.8684 OF 2019** **2** ## **ALEXANDER THOMAS, J.** ## **----------------------------------------B.A. No. 8684 of 2019 ----------------------------------------Dated this the 16[th] day of December, 2019** ## **O R D E R** The petitioner herein has been arrayed as the sole accused in the instant crime No.670/2019 of Aluva West Police Station which has been registered for the offences punishable under Secs. 376(2)(n) and 506 of the IPC. The said crime has been so registered on the basis of the FI statement given by the lady victim aged 27 years on 12.11.2019 at about 12 noon in respect of the alleged incidents which happened for the period from 20.02.2017 onwards. The abovesaid crime was initially registered at Kodungallur Police Station on 12.11.2019 and since most of the incidents are allegedly occurred within the territorial limits of the Aluva West Police Station, the case has been transferred and re-registered as the instant crime No.670/2019 of Aluva West Police Station for the abovesaid offences. 2. The petitioner seeks anticipatory bail application in relation to his involvement in the abovesaid crime. The brief of the prosecution case as disclosed in the FI statement given by the lady victim on 12.11.2019 is to the effect that the petitioner/accused now aged 27 years and the lady victim now aged 27 years were earlier studying in the same college as class mates and that they were having a love affair and that on 20.2.2017, the petitioner **Bail Appl..No.8684 OF 2019** **3** had called her to come to a class room on the 2[nd] floor of the college building at about 4 p.m. and she had gone there and then he had feigned love with her and then had forced her to do oral sex with him. Later, she had gone along with him in his motor cycle to a lonely mountain near Wagamon and where he had touched her body and kissed her and later, had sexual intercourse with her and had also taken her photographs of those intimate scenes. Still later, he had taken her in his car either on 12.12.2018 or on 13.12.2018, where he had forcible sexual intercourse with her inside the car. That she had agreed for the relationship as he had earlier assured her that he would marry her. Now, he had breached his promise and therefore, she felt cheated and has given the instant complaint, which has led to the registration of the instant crime. 3. The learned counsel appearing for the petitioner pointed out that the abovesaid allegations are false and fabricated and that even if it is assumed that the core incidents narrated in the FI statement are correct, then the sexual incidents could have happened only on the basis of consensual sexual relationship and not otherwise and hence, none of the vital ingredients of the offence of rape as per Sec.376 of the IPC are made out. The learned counsel for the petitioner has pointed out various rulings of the Apex Court and this Court in decisions as in _**Dr.Dhruvaram Murlidhar Sonar v.State of Maharashtra**_ [AIR 2019 SC 237]. As cited various decisions of the Apex Court and various High Court including **Bail Appl..No.8684 OF 2019** **4** this Court, wherein it has been held that there is a vital and substantial distinction between rape and consensual sexual relationship between the parties and where a man and a woman continues to have an affair with sexual relationship for quite some time, then it would be rather difficult to make out a case of rape and further that the mere promise said to have been given for marriage etc. cannot be the basis to contend that the consent of the marriage obtained on the basis of misconception of fact as per Sec. 90 of the IPC. 4. The counsel for the petitioner has also placed reliance on the judgment of the Division Bench of the Culcutta High Court in _**Jayanti Rani Panda v. State of West Bengal**_ [1984 Crl.L.J.1535] wherein, it has been held that the failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the Act itself and in order to come within the meaning of misconception of fact as per Sec. 90 of the IPC, the fact must have immediate relevance. That the matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry and we do not know when. If a full grown girl consents to the act of sexual intercourse on the promise of marriage and both of them continues to indulges in the said activity, then it is an act promiscuity on the part of the **Bail Appl..No.8684 OF 2019** **5** parties and such cases cannot be said to be an act induced by the misconception of fact and Sec. 90 may not apply in such a case so as to fasten criminal culpability on the man, unless the court is having materials of unimpeachable quality to be assured that right from the very inception, the accused never really intended to marry the woman, it is urged. 5. The learned counsel for the petitioner also placed reliance on the recent decision of the Apex Court in the cases in **Dr.Dhruvaram's** case (supra), wherein it has been interalia held that there is a substantial distinction between mere breach of promise and not fulfilling the false promise and if the accused had not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such acts would not amount to rape and that there could be very many cases where the prosecutrix agrees to have sexual intercourse on account of love and passion for the accused and not solely on account of misconception created by the accused or where an accused, on account of circumstances, which he could not have foreseen or which were beyond his control, was unable to marry her despite initially having an intention to do so etc. 6. Accordingly, it is urged that this Court may grant anticipatory bail to the petitioner subject to any stringent conditions. The learned Prosecutor as well as Smt. K.K. Jyothylakshmy, learned counsel appearing for the lady defacto complainant has seriously opposed the grant of anticipatory bail. The counsel for the lady defacto complainant would point **Bail Appl..No.8684 OF 2019** **6** out that it is only on account of the promise to marry that she had entered into the relationship with the petitioner. Both the learned Prosecutor and the learned Advocate appearing for the lady defacto complainant would point out that there is every possibility of the petitioner intimidating or influencing the witnesses, including the lady defacto complainant, if he is let out on regular bail. 7. The learned counsel for the petitioner would point out that narration of the three separate incidents would make it clear that if at all the 1[st] incident of alleged oral sex is assumed to be true and that it was without the consent, then it does not appear to any rhyme or reason as to why the lady defacto complainant again allegedly gone along with the petitioner in the motor cycle to a lonely mountain in a distant hilly station, where they had sexual relationship. So also, if the first incidents are assumed to be true, then it does not stand to any logic as to why the lady victim has again gone with him in a car to have sexual relationship and ordinarily it is very difficult to believe that such an incident of forcible sexual intercourse would have taken place in a car. 8. Accordingly, it is urged by the learned counsel for the petitioner that these are all attendant circumstances, which would clearly show that the allegations are false and motivated and if on the other hand, if it is assumed to be broadly correct, then it would have happened only on the basis of consensual sexual relationship between the parties and not **Bail Appl..No.8684 OF 2019** **7** otherwise. Further that, the alleged incidents are said to have taken place initially on a day in 20.02.2017, then on 19.11.2018 and later 13.12.2018 and whereas the FIS and the crime has been lodged only as late as on 12.11.2019. 9. The learned counsel for the lady defacto complainant would point out that her party had initially lodged a complaint on 2.4.2019 before the Vanitha Police Station and later, submitted a petition on 25.05.2019 before the Women’s Commission and yet another petition to Vanitha cell on 21.08.2019. 10. The learned counsel for the petitioner would point out that the delay as between the 1[st] incident (20.02.2017) and the date of lodging of the FIS (12.11.2019) would be about 2 years and 9 months and the delay in respect of the 2[nd] incident would be 1 year and the 3[rd] incident would be 11 months respectively and the delay has not been explained in any manner. The learned counsel for the petitioner would also point out that no materials have been produced by the defacto complainant even to remotely show that any such petitions have been given earlier. Further that, even if it is assumed that the date of the submission of the FIS in this case is said to have been made on 2.4.2019, still there is a delay of 2 years and 2 months, 8 months and 7 months respectively. That the complainant has not given any explanation whatsoever for the long and unexplained delay in lodging of the FIR would vitiate the impugned criminal proceedings, as it affects **Bail Appl..No.8684 OF 2019** **8** the very believability and credibility of the prosecution case. 11. In this regard, the counsel for the petitioner would also place reliance on various decisions of the Apex Court in _**Thulia Kali v. State of Tamil Nadu,** [AIR 1973 SC 501]_ , _**State of Andhra Pradesh v. Madhusudhan Rao** [2008 (15) SCC 582]_ **,** wherein the legal principles relating to the delay in lodging of the FIR has been dealt with and it has been held therein that the delay in lodging FIR will more often than not will result in embellishments and exaggerations which are creations of afterthought and delay of report not only gets bereft of the advantage of spontaneity, but the danger creeps in of introduction of the coloured versions, exaggerated accounts or incidents of concocted story as a result of deliberations and consultations, which creates serious doubts on the very veracity of the prosecution story. Therefore, it has been held that it is highly essential that the delay in lodging of the FIR should be satisfactorily explained by the prosecution. Further that, when the substratum of the case of the complainant is also found to be unreliable, the prosecution will have to be rejected in its entirety. 12. After hearing both sides and after careful evaluation of the facts and circumstances of this case and testing the facts of this case in the light of the judicial precedents which have laid down the vital and substantial distinction between forcible sexual intercourse and the consensual sexual relationship between the parties and also the long delay involved in this **Bail Appl..No.8684 OF 2019** **9** case etc, this Court is inclined to take the view that the petitioner herein has made out a strong probable case that the custodial interrogation of the petitioner may not be necessary or warranted for effectuating fair and smooth conduct of the investigation of this crime. 13. However, taking note of the abovesaid apprehension raised by the prosecution, it is ordered as a safeguard that the petitioner shall not enter into or reside anywhere within the territorial limits of the police Station where the lady defacto complainant is residing until the conclusion of the trial process in this case, subject to certain exceptions which should be dealt with hereinafter. 14. It is brought to the notice of this Court that the petitioner is residing at Angamaly and the lady defacto complainant is residing at Kodungallur and they are residing within the limits of two different police stations. Accordingly, it is ordered that in the event of the petitioner being arrested by police in connection with the abovesaid crime, he shall be released on bail on his executing a bond for Rs.40,000/- (Rupees Forty Thousand only) each and on furnishing two solvent sureties for the likesum, both to the satisfaction of the Investigating Officer (I.O.) concerned. However, the grant of bail will be subject to following conditions. _(1) The petitioner will report before the IO concerned and will appear before him as and when directed by the said officer._ _(2) The petitioner shall not involve in any criminal offences of similar nature_ **Bail Appl..No.8684 OF 2019** **10** _while on bail._ _(3) The petitioner shall fully co-operate with the investigating officer in the conduct of the investigation._ _(4) The petitioner shall fully co-operate with the investigating officer in the conduct of any medical test like the potential test etc. if it is so insisted by the IO. (5) The petitioner shall not influence witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ _(6) The petitioner shall not reside or enter into the territorial limits of the police station where the defacto complainant is residing until the conclusion of trial process, except for the limited purpose of reporting before the Investigating Officer concerned in this crime, or for attending to the Court in relation to this case or any other cases or for contacting his lawyer/advocate concerned. However, if the petitioner has any emergent need to visit the said area, he may do so, but only with the prior permission of the investigating officer concerned._ _(7) If there is any violation of the abovesaid conditions by the petitioner then the jurisdictional court concerned will stand hereby empowered, to consider the plea for cancellation of bail at the appropriate time._ With these observations and directions, the above applications will stand disposed of. Sd/- **ALEXANDER THOMAS, JUDGE** ## **SKS**