Mohammed Anfas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 19TH DAY OF AUGUST 2019 / 28TH SRAVANA, 1941** ## **Crl.MC.No.5447 OF 2019(A)** **CRIME NO.65/2018 OF Perinthalmanna Police Station , Malappuram** ## **PETITIONER/S:** **MOHAMMED ANFAS, AGED 26 YEARS S/O.ABOOBACKER, VYSYAM VEETTIL, MELEKKALAM, THAZHEKKODE, PERINTHALMANNA, MALAPPURAM DISTRICT.** **BY ADV. SRI.P.SAMSUDIN** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031 (CRIME NO.65/2018 OF PERINTHALMANNA POLICE STATION).** - **2 VICTIM, X** ## **R2 BY ADV. BINU V V VEETTIL VALAPPIL** ## **OTHER PRESENT:** ## **SRI.B.JAYASURYA,PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2.8.2019 THE COURT ON 19.08.2019, PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 5447 of 2019 ================== Dated this the 19[th] day of August, 2019 ## **O R D E R** The petitioner herein has been arrayed as the sole accused in the instant Anx. A-1 Crime No. 65/2018 of Perinthalmanna Police Station, which has been registered for offences punishable under Sec. 376 of the I.P.C. on the basis of the FI statement given by the 2[nd] respondent lady defacto complainant on 10.1.2018 at 1.20 p.m. in respect of the alleged incidents, which had happened for the period from 27.11.2017 to 28.11.2018. It is now submitted by the learned Advocates appearing for the petitioner accused and the learned Advocate appearing for the 2[nd] respondent lady defacto complainant that parties have fully resolved their disputes and that the 2[nd] respondent has married another man and that the 2[nd] respondent is no longer interested to continue the impugned criminal proceedings against the petitioner and that she has no objections in quashment of the impugned criminal proceedings, etc. 2. Heard Sri.P.Samsudin, learned counsel appearing for the petitioner accused, Sri. B.Jayasurya, learned Prosecutor appearing for R-1 State of Kerala and Sri.Binu V.Veettil Valappil, learned counsel Crl.M.C.5447/19 - : 3 :- appearing for the 2[nd] respondent lady defacto complainant. 3. It is by now well established that criminal proceedings involving serious offences as the one as per Sec. 376 of the I.P.C. (rape) may not be amenable for quashment in proceedings under Sec. 482 of the Cr.P.C. mainly on the ground of settlement between the parties. {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, in the instant case, the main ground now urged by the petitioner is that even if it is assumed that the main allegations in the impugned prosecution materials are assumed to be correct, the incidents alleged therein would have happened only on the basis of consensual sexual relationship between the parties and that therefore the vital ingredients of rape as per Sec.376 of the I.P.C. are not made out. 4. It is also 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 Crl.M.C.5447/19 - : 4 :- 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 the 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 06.04.2018 of the Apex Court in Crl.Appeal No.504/2018), it has been held that be rather difficult to hold that the 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 had lived together. In _**Dhruvaram Murlidhar Sonar’s**_ case (supra), the Apex Court has elucidated the principles in that regard and it has been laid down the clear distinction between rape and Crl.M.C.5447/19 - : 5 :- 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 have sexual relationship was obtained on the basis of misconception of facts as understood in Sec.90 of the IPC. 5. Now it will be pertinent to refer to some of the crucial factual aspects involved in this case, as made out in the admitted allegations of the 2[nd] respondent in Anx. A-1 FIS and then to examine the tenability of the plea of the petitioner as to whether the incidents alleged to have happened only on the basis of consensual sexual relationship between the parties. Both sides have elaborately taken to this Court's attention to the FIS given by the 2[nd] respondent lady defacto complainant on 10.1.2018 as given on pages 11 to 13 of the paper book of this Crl.M.C. The prosecution allegation in short is that the 2[nd] respondent lady defacto complainant aged 22 years and the petitioner accused now aged 26 years were college mates in the engineering college and a love affair started between them and they had gone to various places, like Malappuram, Kozhikode, Kozhikode Crl.M.C.5447/19 - : 6 :- beach, Pattambi, etc. frequently. That later, on 27.11.2017, the petitioner had taken her in his car to a resort and they had stayed there and that he had forced to have sexual intercourse there and that he had even unnatural sex with her and that later, the petitioner had gone to his residence and had agreed to marry her. Subsequently the petitioner was not attending to any of the telephone calls made by the 2[nd] respondent and she understood that he had abandoned the proposal and she felt cheated and given the instant FIS/ complaint on 10.1.2018 which has led to the institution of Anx. A-1 Crime. It is also stated that later the 2[nd] respondent has married another man, as evident from Anx. A-2 marriage certificate. 6. From a reading of the abovesaid FIS it can be seen that the petitioner accused and the 2[nd] respondent lady defacto complainant were college mates in an engineering college and that they had developed an intimacy and love affair and they used to frequently travel to many places and that, on the day in question, he had taken her in a car to a resort, where they had stayed for a night and where he had sexual relationship with her. Though the 2[nd] respondent has alleged in Anx. A-1 FIS that the petitioner had forced her to have sex, it can be seen that the 2[nd] respondent had voluntarily Crl.M.C.5447/19 - : 7 :- gone with the petitioner in his car to the resort and stayed there. Therefore, it is only to be inferred that the sexual relationship could have been only on the basis of the consensual relationship between the parties. The 2[nd] respondent was aged more than 22 years and is also an engineering graduate and she should be knowing the consequences of her actions in voluntarily going with a man to a resort and staying there and that in such circumstances, it is quite natural that sexual relationship would occur and hence, in these circumstances it can only be held that the allegations of sexual relationship if proved, would have happened only on the basis of the consent between the parties. Moreover, the 2[nd] respondent has married another person. Going by the dictum laid down by the Apex Court and various High Courts including this Court in various decisions, where a man and woman continue to have intimate relationship for quite some time, then it may be difficult to hold that the case of rape has been made out and mere breach of promise to marry cannot be the basis to contend that the consent was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC 7. In the light of the abovesaid aspects, it is ordered in the Crl.M.C.5447/19 - : 8 :- interest of justice that the impugned Anx. A-1 FIR filed in Crime No. 65/2018 of Perinthalamanna Police Station, and all further proceedings arising therefrom pending 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 Criminal Miscellaneous Case stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** Crl.M.C.5447/19 - : 9 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO.65/2019 OF PERINTHALMANNA POLICE STATION. ANNEXURE A2 TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE LOCAL MOSQUE COMMITTEE. ANNEXURE A3 THE AFFIDAVIT DATED 25/07/2019 SWORN IN BY THE 2ND RESPONDENT (DE-FACTO COMPLAINANT).**