Hiran v. Sub Inspector of Police, Nedupuzha Police Station, Thrissur; State of Kerala; VijayaLakshmi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 13TH DAY OF JUNE 2019 / 23RD JYAISHTA, 1941** **Crl.MC.No.3636 of 2019** **CRIME NO.712/2018 OF Nedupuzha Police Station, Thrissur** ## **PETITIONER/S:** **HIRAN, AGED 28 YEARS S/O.JOSE, NELLISSERY HOUSE, VADOOKARA.P.O, THRISSUR-680007. BY ADV. SRI.V.A.VINOD** ## **RESPONDENT/S:** |**1**|**THE SUB INSPECTOR OF POLICE**| |---|---| ||**NEDUPUZHA POLICE STATION, THRISSUR-680007.**| |**2**|**STATE OF KERALA**| ||**REP. BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM-682031**| |**3**|**VIJAYALAAKSHMI, AGED 35 YEARS**| ||**W/O.SHAJI, VAKAYIL HOUSE, NEDUPUZHA DESOM,**| ||**KANIMANGALAM VILLAGE, NEDUPUZHA.P.O,**| ||**THRISSUR-680007**| ||**BY ADV. SRI.S.JAYAPRAKASH (MADAVOOR)**| ## **OTHER PRESENT:** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR FOR R1 AND R2, SRI.S.JAYAPRAKASH (MADAVOOR) FOR R3** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 13.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::2:: **Crl.MC.No.3636 of 2019** ## **ALEXANDER THOMAS, J** . ----------------------------Crl.M.C.No.3636 Of 2019 --------------------------------Dated this the 13[th] day of June, 2019. ## **O R D E R** The petitioner has been arrayed as the sole accused in the impugned Anx-I Crime No.712/2018 of Nedupuzha Police Station, Thrissur District, which has been registered for offences punishable under Secs.376(2)(n), 406 & 420 of the I.P.C, on the basis of the FI statement of the 3[rd] respondent-lady defacto complainant given on 29.12.2018. The main ground urged by the petitioner is that even going by the admitted prosecution materials like Anx-I FIR, more particularly, the FI statement attached thereto, given by none other than the 3[rd] respondent-lady de facto complainant would clearly show that the incidents alleged, if true, would have been happened only on the basis of consent of both parties and therefore the offence of forcible sexual intercourse of rape as per Sec.376 of the I.P.C has not been made out in the instant case. The petitioner is now aged 28 years. Moreover, it is stated that the petitioner and the respondent resolved their disputes and the matter has been settled and the 3[rd] respondent ::3:: ## **Crl.MC.No.3636 of 2019** has no complaint against the petitioner and that she has filed Anx-II affidavit dated 21.5.2019 wherein it is stated that she does not want to prosecute the matter any further. 2. Heard Sri.V.A.Vinod, learned counsel for the petitioner, Smt.Priya Shanavas, learned Prosecutor appearing for respondents 1 & 2 and Sri.S.Jayaprakash (Madavoor), learned counsel appearing for contesting respondent No.3-de facto complainant. 3. 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 FI statement given by none other that the lady defacto complainant, it can be seen that the incidents alleged would have been happened only on the basis of consent of the parties and it does not constitute the vital ingredient of offence of rape as per Sec.376 of the I.P.C. Apart from the main contention it is also urged that though ::4:: ## **Crl.MC.No.3636 of 2019** Anx-II settlement may not be pressed into service for the purpose of quashment of offence of rape as per Sec.376 of the I.P.C, the said settlement as per Anx-II is certainly germane and relevant as the plea for quashing the offences under Secs.406 & 420 of the I.P.C. 4. Before dealing with the facts of the case, it will be pertinent to refer to the legal principles laid down by the Apex Court and various High Courts in the matter of 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,**_ 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 ::5:: ## **Crl.MC.No.3636 of 2019** 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 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. ::6:: **Crl.MC.No.3636 of 2019** 5. Now, it will be pertinent to refer to the nature of the allegations raised by the 3[rd] respondent-de facto complainant in AnxI FIR, more particularly, the FI statement attached thereto. From a reading of the FI statement given by the 3[rd] respondent, it can be seen that it is admitted by her that she is a married lady aged 35 years and has got two minor children and that at the relevant time her husband was working in a foreign country and that she has got acquainted with the petitioner, who is the brother of her friend and they got very intimate close affairs and started an affair and that the petitioner, then aged 23 years, was running a Chicken Farm in Govindapuram, Pollachi and that he had assured that he would secure a job for her and further that he had promised that he would marry her and as requested by him she had gone to his farm in Govindapuram and there he had compelled her to have sexual intercourse on a day in November, 2014 and that the abovesaid incident of sexual relationship had occurred on many occasions. Incidentally, the 3[rd] respondent would allege that the petitioner used to blackmail her that he would disclose the abovesaid incidents and that she continued to have the sexual relationship with the petitioner, that the petitioner had assured that he would marry her and that later she found that the petitioner was seriously considering proposal for marrying another ::7:: ## **Crl.MC.No.3636 of 2019** lady and she has found that he had cheated her. Earlier, the petitioner had also received Rs.5 lakhs from her, etc. From a close reading and analysis of the allegations made by the 3[rd] respondent in Anx-I FI statement, it can be seen that it is admitted by the lady de facto complainant that she is a married woman, aged 35 years and the petitioner is an unmarried man, who was then aged 23 years in November, 2014 and that therefore the alleged promise said to have been made that he would marry the 3[rd] respondent, who is a married lady has no legal efficacy. Further it is clear that it was through the petitioner's sister that the petitioner started the relationship and the illicit affair between them and that she has voluntarily gone with him to his farm house in Govindapuram, Pollachi, where they had sexual relationship. Incidental allegation therein is that after reaching the house, the petitioner had forced to have sex. But it is the indisputable fact that the lady, who is a married lady, travelled all the way from her house in Thrissur District to Pollachi in Tamil Nadu State to the farm house of the petitioner knowing fully well that they will be staying there. Therefore, the allegation that after reaching there, the petitioner had forced her to have sex has to be taken only with the pinch of salt. True, that there are allegations that he had assured to take her to a Gulf country and he would get a job for her in the Gulf ::8:: ## **Crl.MC.No.3636 of 2019** country and that he had obtained Rs.5 lakhs from her. The settlement arrived as per Anx-II affidavit would certainly be relevant and germane as far as offences under Secs.406 & 420 are concerned, as such offences have also been alleged in Anx-I FI statement. 6. Taking note of the totality of the facts and circumstances disclosed from Anx-I FI statement, it can be seen that the alleged incidents, if true, would have happened only with the consent between the parties. Therefore, this Court is of the considered view that the vital ingredients of forcible sexual intercourse of rape as per Sec.376 of the I.P.C has not been made out in the instant case. The promise made by an unmarried man to a married lady that he would marry her, does not have any legal efficacy inasmuch as the 3[rd] respondent has no case that she had secured lawful dissolution of subsisting marriage at the time of commencement of the relationship between the parties. Even now, the marriage of the lady with her husband has not been dissolved. When a married lady, who is then aged about 31 years and having two children gets into an affair with an unmarried man, aged hardly 23 years, it is only to be construed that she has voluntarily entered into such an affair with the man on her own volition and after making her own moral and ethical choices. When a married lady, travelled all the way from her house in Thrissur ::9:: ## **Crl.MC.No.3636 of 2019** District to the farm house of the petitioner at Govindapuram, Pollachi in Tamil Nadu State, she should be imputed with the knowledge that the incidents of the nature of sexual relationship is bound to happen if such state of affairs is voluntarily courted. Such an affair by a married woman with an unmarried man, who is younger to her by about more 7 years should give a clear signal to any intelligent prudent married lady that the so called assurance of promise has no legal efficacy and that ordinarily, an unmarried man, aged 23 years, will not be willing to get in to a marriage with a married lady, who is more than 7 years elder to him even if it is assumed that she would subsequently obtain dissolution of the first marriage. A married lady should have kept distance in her relationship with the brother of her friend, who happens to be an unmarried man and who is about more than 7 years younger to her and if the line is crossed, then any prudent person would know that certain consequences would flow (even to the extent of sexual relationship) and it is only to be inferred in such situation that the lady has voluntarily taken the decision and after making her own moral and ethical choices. In such a situation it cannot be said that the vital ingredients of offence of rape as per Sec.376 of the I.P.C has been made out. Therefore, as mentioned hereinabove, the other offences under Secs.406 & 420 of the I.P.C would certainly be quashed taking into account the settlement ::10:: ## **Crl.MC.No.3636 of 2019** arrived between the petitioner and the lady de facto complainant. In the light of these aspects, further continuation of the impugned proceedings is an abuse of the process of the court as it amounts to mere wastage of precious resources of prosecution machinery as well as judicial forum. Accordingly, it is ordered that the impugned Anx-AI FIR in Crime No.712/2018 of Nedupuzha Police Station, which has been registered against the petitioner and all further proceedings taken in pursuance thereof as against the accused will stand quashed. The petitioner will produce a certified copy of this order before the Investigating Officer as well as the court below concerned for necessary information. The Office of the Advocate General will also forward a copy of this order to the Investigating Officer concerned for necessary information. With these observations and directions, the above Crl.M.C will stand finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::11:: **Crl.MC.No.3636 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.712/2018 OF NEDUPUZHA POLICE STATION, THRISSUR** **ANNEXURE II TRUE COPY OF THE AFFIDAVIT, SWORN IN BY THE 3RD RESPONDENT**