Liju v. State of Kerala and Victim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941** ## **Crl.MC.No. 1961 of 2019** **AGAINST THE ORDER/JUDGMENT IN SC 276/2017 of ADDITIONAL DISTRICT COURT & SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE AG** ## **PETITIONER/S:** **LIJU, AGED 29 YEARS, S/O MANI,M.S.NIVAS,NEAR KANNATTUTHURUTHIKKAVU, THEKKUMBHAGOM,KADAKKAVOOR VILLAGE, THIRUVANANTHAPURAM.** **BY ADV. SRI.SHAJIN S.HAMEED** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **2 VICTIM** ## **OTHER PRESENT:** **SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1, SRI.A.K.RAJESH FOR R2** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 1961 of 2019 ================== Dated this the 6[th] day of June, 2019 **O R D E R** The petitioner has been arrayed as the sole accused in S.C.No. 276/2017 on the file of the Addl. Sessions Court for the trial relating to Atrocities and Sexual Violence against Women and Children, Thiruvananthapuram, which has taken cognizance for offences punishable under Secs.363, 417 and 376 of the I.P.C. 2. The case of the 2[nd] respondent lady defacto complainant/ victim, who is now a major, as set up in her first information statement dated 7.4.2014, which has led to the registration of the instant Anx.A Crime No. 362/2014 of Kadakkavoor Police Station, is that when she was of the age of 15 years, the petitioner and she had developed a love affair with the petitioner accused, who had assured her that he would marry her and on that assurance, parties had sexual intercourse and she had given birth to two children, one when she was aged 16 years and the other child when she was at age of 18 years and that the petitioner's parents did not accept their relationship and so the couple was constrained to live in the residence of the lady victim. But that thereafter the petitioner accused had not cared to solemnize the marriage between them in the manner known to law Crl.M.C.1961/19 - : 3 :- and that he is neglecting her and that now it is clear that the petitioner had given assurance to her that he would marry her, etc. was without any bonafides and was only for the purpose of sexual relationship, etc. It is on the basis of the said allegations raised in Anx. A FIS given on pages 6 to 8 of Anx. A FIR that the abovesaid crime has been registered for the abovesaid offences. From a look at column No.3 and column No.16 of Anx. A FIR it appears that the Police have proceeded on the factual premise as if the parties have commenced their sexual relationship some time in the year 2008. On that premise, the petitioner's counsel would point out that even going by the admitted prosecution allegations, as can be seen from the age and date of birth certificate of the 2[nd] respondent victim relied on by the prosecution as given on internal page 14 of the impugned Anx. B final report/charge sheet, that she was studying for 10 Std. during academic year 2007-08 and her date of birth is 15.5.1991. On that basis, the petitioner would point out that, even going by the prosecution allegation, she had completed the age of 16 years as early as on 15.5.2016. That the POCSO Act had come into force only on 20.6.2012. The age of consent of the lady was enhanced from 16 years to 18 years as per the amended provisions of Sec. 375 of the I.P.C. only w.e.f. 3.2.2013. On that basis, the petitioner would point out that Crl.M.C.1961/19 - : 4 :- it is clear from a reading of the impugned FI statement that the events alleged therein, if true, would have happened only on the basis of the consent of the parties as the 2[nd ] respondent victim would even state that the couple was residing for quite a long time in her residence as the petitioner's parents did not accept the relationship and that this would clearly show that the petitioner was serious about the relationship and that is why, he had gone to the extent of residing with the victim in her own house even though his parents objected to the relationship and that since it was on the basis of consent and the age of consent at that time was 16 years and as the alleged incidents have taken place, much after the victim had completed the age of 16 years, no offence as per Secs. 375 and 376 of I.P.C. are made out in the facts of this case, as, even according to the prosecution, the sexual relationship commenced in the year 2008 and the children were borne after she had completed the age of 16 and 18 years respectively. The learned Prosecutor would point out that the said reference of the year 2008 as mentioned in column No.3 (date of occurrence of the crime) of Anx.A FIR as well as summary of the FIR as given on column No.16 of Anx. A FIR internal page 4 thereof, would have been a mistake as the victim has clearly stated in Anx. A FIS that the sexual relationship commenced when she was at the age of 15 years Crl.M.C.1961/19 - : 5 :- and that even at that time, the age of consent is 16, years etc. and that therefore, the competent age for the lady victim to give consent for sexual relationship at that time was 16 years and that therefore irrespective as to whether there is consent between the parties, the offence is made out. 3. The Police, after investigation has filed the impugned Anx. B final report/charge sheet in Crime No. 362/2014 of Kadakkavur Police Station, which has led to the institution of S.C.No. 276/2017 on the file of the Sessions Court concerned, Thiruvananthapuram. 4. Now it is stated by the learned Advocate appearing for the petitioner accused and the learned Advocate appearing for the 2[nd] respondent lady defacto complainant that the petitioner and the lady victim have now solemnized their marriage on 26.8.2015 as evident from Anx. E marriage certificate The 2[nd] respondent lady victim has also filed Anx. F affidavit dated 11.2.2019 stating before this Court that the entire disputes between the couple have been duly resolved and that the petitioner accused has now married her on 26.8.2015 and that she is no longer interested to continue the prosecution. The learned Advocate appearing for the 2[nd] respondent victim submits that it is only in the interest of the 2[nd] respondent that the impugned criminal proceedings are quashed as otherwise it will detrimentally Crl.M.C.1961/19 - : 6 :- affect her married life , etc. 5. It is by now well settled that grave and serious offences as the one under Sec.376 (rape) of the I.P.C. cannot be the subject matter of quashment of the impugned criminal proceedings on the ground of settlement between the accused and the victim. {see _**Shimbhu & Anr. 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, this Court has held in various decisions including the one as in _**Freddy @ Antony Francis & Ors. v. State of Kerala & Anr**_ . [2017 KHC 344 = 2018 (1) KLD 558) that the exception to the above approach could be in cases where the accused has married the defacto complainant and they have decided to settle all the disputes and for the predominant purpose of the welfare of the defacto complainant/ victim, to ensure her better future life, it is only just and proper that this Court in exercise of the extra ordinary inherent powers under Sec.482 of the Cr.P.C. could quash the impugned criminal proceedings on the ground of settlement between the parties in cases where the accused has married the defacto complainant and the defacto complainant is insisting for quashment of the impugned Crl.M.C.1961/19 - : 7 :- criminal proceedings, etc. 6. In the light of the abovesaid aspects, more particularly in the light of the abovesaid submission made on behalf of the 2[nd] respondent defacto complainant, this Court is inclined to consider the plea for quashment of the impugned of the criminal proceedings, as otherwise it will detrimentally affect the family life of the defacto complainant. Accordingly, it is ordered that the impugned Anx. B final report/charge sheet filed in Anx.A FIR in Crime No. 362/2014 of Kadakkavoor Police Station, and all further proceedings taken in pursuance thereof as against the accused will stand quashed. The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions, the above Crl.M.C. stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** Crl.M.C.1961/19 - : 8 :- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A CERTIFIED COPY OF THE FIR IN CRIME NO.362/2014 OF THE KADAKKAVOOR POLICE STATION.** **ANNEXURE B CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.362/2014 OF THE KADAKKAVOOR POLICE STATION.** - **ANNEXURE C PHOTOCOPY OF THE BIRTH CERTIFICATE DATED 06/11/2008 ISSUED BY TH EREGISTRAR OF BIRTHS AND DEATHS,CORPORATION OF THIRUVANANTHAPURAM.** - **ANNEXURE D PHOTOCOPY OF THE BIRTH CERTIFICATE DATED 03/04/2013 ISSUED BY THE REGISTRAR OF BIRTHS AND DEATHS,CHIRAYINKEEZHU GRA,MA PANCHAYAT.** **ANNEXURE E PHOTOCOPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE MARRIAGE OFFICER,KADAKKAVOOR.** **ANNEXURE F AFFIDAVIT EXECUTED BY THE 2ND RESPONDENT.**