Muhammed Rafi @ Rafeeque @ Manu v. State of Kerala & Sajitha W/o Ismayil

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 17TH DAY OF DECEMBER 2020 / 26TH AGRAHAYANA, 1942** ## **Crl.MC.No.6007 OF 2016** **AGAINST THE ORDER/JUDGMENT IN SC 5/2015 OF ADDITIONAL DISTRICT COURT, MANJERI** **AGAINST THE ORDER/JUDGMENT IN CMP 9013/2015 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TIRUR** **CRIME NO.63/2014 OF KALPAKANCHERY POLICE STATION, MALAPPURAM** ## **PETITIONER/ACCUSED:** **MUHAMMED RAFI @ RAFEEQUE @MANU AGED 34 YEARS, S/O HAMSA (LATE), ACHATH HOUSE, PARAMMALANGADI P.O, PUTHENATHANI, TIRUR TALUK, MALAPPURAM DISTRICT.** **BY ADVS. SHRI.P.VENUGOPAL SRI.M.REVIKRISHNAN** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031.** **2 SAJITHA W/O ISMAYIL, AGED 39 YEARS, ACHATH HOUSE, VALAVANNUR AMSOM, PARAMMALANGADI P.O, TIRUR TALUK, MALAPPURAM DISTRICT, 676 551.** ## **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No.6007 of 2016 2 # **ALEXANDER THOMAS, J.** ## **=========================== Crl.M.C No.6007 of 2016** **===========================** Dated this the 17[th] day of December, 2020 ## **ORDER** The prayer in the aforecaptioned Crl.M.C filed under Sec.482 of the Cr.P.C is as follows : _"............... to allow this Criminal Miscellaneous Case, quash Annexure J Final Report and all further proceedings pursuant thereto initiated against the petitioner/accused in S.C.No.5 of 2015, pending on the files of the Additional District & Sessions Court-I, Manjeri, so as to secure the ends of justice."_ 2. Heard Sri.P.Venugopal, learned counsel appearing for the petitioner (sole accused) and Sri.Santhosh Peter, learned Public Prosecutor appearing for the 1[st] respondent-State of Kerala. Though notice to the contesting respondent No.2 has been duly served as early as on 21.09.2016, there is no appearance for that party. 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Annexure-I First Information Report in Crime No.63/2014 of Kalpakancherry Police Station, Malappuram District, for offences punishable under Secs.392, 511 of Sec.376, 506 (i) of the Indian Penal Code & Sec.66E of the Information Technology Act, 2000, on the Crl.M.C No.6007 of 2016 3 basis of the First Information Statement given by the 2[nd] respondent (lady de facto complainant) on 25.01.2014 at 8.30 p.m., in respect of the alleged incident which happened on 22.01.2014 at about 8 p.m., etc. The police after investigation have filed the impugned Annexure-J final report/charge sheet in Crime No.63/2014 of Kalpakancherry Police Station on 01.10.2014, in which the petitioner herein has been arrayed as the sole accused for offences punishable under Secs.452, 511 of Sec.376 & 506 (i) of the IPC. The case after committal is now pending as sessions case S.C.No.5/2016 on the file of the First Additional Sessions Court, Manjeri. 4. From the materials on record, it appears that this is a second round of impugned criminal proceedings initiated at the behest of the 2[nd] respondent-lady de facto complainant as against the petitioner/accused alleging the very same offence of attempt to commit rape (Sec.511 of Sec.376 of the IPC). Earlier, the petitioner herein was arrayed as the sole accused in Annexure-B Crime No.401/2012 of Kalpakancherry Police Station, Malappuram District, for offences punishable under Secs.384, 450 & Sec.511 of 376 of the IPC, which was registered on 02.08.2012 pursuant to Annexure-A private criminal complaint dated 19.07.2012 filed by the 2[nd] respondent-lady de facto Crl.M.C No.6007 of 2016 4 complainant (in which the learned Magistrate had directed the police to register the FIR and to conduct investigation). The police after investigation had then filed Annexure-B final report/charge sheet on 15.10.2012, in which the petitioner herein has been arrayed as the sole accused, for offences punishable under Secs.384, 450, Sec.511 of Sec.376 of the IPC, etc. This later led to the pendency of sessions case S.C.No.172/2013 on the file of the Additional Sessions Court (Adhoc-II), Manjeri. 5. The brief of the prosecution case arising out of Annexures-A & B proceedings is to the effect that the 2[nd] respondent is a married woman and that the petitioner happens to be her husband’s close relative, who is living in the immediate neighbourhood and that the 2[nd] respondent’s husband was then employed in a Gulf country and that she frequently used the services of the petitioner, who was then gainfully employed as the driver of a vehicle. Further that, on 15.09.2011, the petitioner had trespassed into her residence, when she was alone and had done various acts, so as to attempt to commit rape on her and that he had even stolen away her 5 sovereigns of gold ornaments and also taken her obscene pictures in mobile and that therefore, he had committed the abovesaid offences punishable under Crl.M.C No.6007 of 2016 5 Secs.384, 450 & 511 of Sec.376 of the Indian Penal Code & Sec.66E of the Information Technology Act. The police after investigation have found that the allegations regarding the commission of offence as per Sec.66E of the IT Act are true and then filed Annexure-B final report/charge sheet for the offences mentioned hereinabove. In the meanwhile, it appears that the 2[nd] respondent has executed Annexure-C agreement dated 17.05.2013 with the petitioner, stating that she had earlier borrowed an amount of Rs.19,000/- from the petitioner with the understanding that she would return back an amount of Rs.1 lakh to him and that as per Annexure-C agreement, she would undertake and agree that she would repay the said amount of Rs.1 lakh to the petitioner within six months therefrom, etc. 6. The case of the petitioner is that the 2[nd] respondent used to borrow money from her and when he had taken steps to set in motion litigative proceedings for recovery of the said amount, she has filed the impugned Annexures-A & B proceedings raising absolutely false and malicious allegations against the petitioner. That later, the petitioner has challenged Annexures-A & B proceedings before this Court by filing Annexure-D Crl.M.C No.2520/2013, this Court has rendered Annexure-D final order dated 20.06.2013 in Crl.M.C No.2520/2013, Crl.M.C No.6007 of 2016 6 after hearing the petitioner, prosecution agency as well as the 2[nd] respondent herein and this Court has quashed the impugned criminal proceedings at Annexures-A & B herein. In Annexure-D order, this Court has also recorded to the affidavit filed by the 2[nd] respondent therein, etc. Thereafter, it appears that the 2[nd] respondent did not fulfil her obligations in respect of the abovesaid financial commitments undertaken by her in Annexure-C agreement dated 17.05.2013 and the time in that regard had ran out by 17.11.2013. That the 2[nd] respondent had failed to keep her word and that the petitioner had then insisted that the 2[nd] respondent should pay the amount immediately, upon which she threatened him that he, will be implicated in another false case. Left with no remedy the petitioner had then issued Annexure-E lawyer’s notice dated 13.01.2014 calling upon the 2[nd] respondent to pay the amount covered by Annexure-C agreement. Annexure-E notice dated 13.01.2014 was served on the 2[nd] respondent on 16.01.2014, as can be seen from Annexure-F receipt dated 16.01.2014. That it is thereafter, on being infuriated by the petitioner issuing lawyer’s notice as per Annexures-E & F, etc. on 13.01.2014. That in the meanwhile, the petitioner had filed civil suit against the 2[nd] respondent for realization of the money, in which judgment and decree has been rendered as per Crl.M.C No.6007 of 2016 7 Annexure-G dated 30.07.2014 by the Munsiff’s Court, Tirur in O.S.No.135/2014. Annexure-H is the decree dated 30.07.2014 in O.S No.135/2014 on the file of the Munsiff’s Court, Tirur, in which the petitioner would subsequently get the said decree as against the 2[nd] respondent. The petitioner’s case is that on being infuriated, the 2[nd] respondent has initiated the impugned Annexures-I & J, FIR & FIS, which has resulted in Annexure-J final report/charge sheet and the institution of the impugned sessions case S.C.No.5/2015 on the file of the First Additional Sessions Court, Manjeri for the abovesaid offences of Secs.452, 511 of Sec.376 & 506(i) of the IPC. A reading of AnnexuresI & J, FIR & FIS would make it clear that the allegations raised therein are to the effect that on 22.01.2014 at about 8 p.m., the petitioner had again trespassed into the residence, when she was alone and had grabbed her, when she was lying in the bed and had torn her maxi and that he had “attempted to commit rape on her”. That she tried to wriggle out of the grab of the petitioner and then he kissed her and had taken photographs in mobile and had even taken away her 1 ½ sovereigns of gold chain, etc. Annexure-I would make it clear that apart from the allegations of attempt to commit rape, the police had also registered offence as per Sec.392 (robbery) of the IPC as well as Crl.M.C No.6007 of 2016 8 Sec.66E of the Information Technology Act. After completing the investigation, the police had disbelieved the version of the 2[nd] respondent as regards the allegations of robbery of gold chain and also the commission of the alleged offence as per Sec.66E of the Information Technology Act and had deleted those offences. Now, the offences alleged in Annexure-J final report/charge sheet are those punishable under Sec.511 of Sec.376 (attempt to commit rape), Sec.452 (house trespass) & Sec.506 (i) (criminal intimidation) of the IPC, etc. A reading of Annexures-I & J would make it clear that none of the vital ingredients of offence of attempt to commit rape as per Sec.511 of Sec.376 of the IPC are made out therein. 7. It has been held by the Apex Court in various decisions as in _**Amankumar & anr. v. State of Haryana**_ [AIR (2004) SC 1497] in paragraph No.14 that in order to find an accused guilty of assault with the intention to commit rape, there should be materials to show that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon a person but also that he intended to do so at all events, and notwithstanding any resistance on her part, etc. It will be profitable to refer to paragraph Nos.8 to 14 of the abovesaid decision of the Apex Court in _**Amankumar’s case**_ (supra) [AIR (2004) SC 1497], Crl.M.C No.6007 of 2016 9 ## which read as follows : “8. _The plea relating to applicability of Section 376 read with Section 511, IPC needs careful consideration. In every crime, there is first, intention to commit, secondly preparation to commit it, thirdly, attempt to commit it. If the third stage, that is, attempt is successful, then the crime is complete. If the attempt fails the crime is not complete, but law punishes the person attempting the act. Section 511 is a general provision dealing with attempts to commit offences not made punishable by other specific sections. It makes punishable all attempts to commit offences punishable with imprisonment and not only those punishable with death. An attempt is made punishable, because every attempt, although it falls short of success, must create alarm, which by itself is an injury, and the moral guilt of the offender is the same as if he had succeeded. Moral guilt must be united to injury in order to justify punishment. As the injury is not as great as if the act had been committed, only half the punishment is awarded._ _9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word 'attempt' is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it; and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit_ Crl.M.C No.6007 of 2016 10 _dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater degree of determination in attempt as compared with preparation._ _10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than mere preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt._ _11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events, and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect._ _12. Though the prosecutrix's version in Court was of rape, when it is compared with the one given during investigation, certain irreconcilable discrepancies are noticed. The evidence regarding actual commission of rape is at variance from what was recorded by police during evidence. The evidence of PW-11, the father who according to prosecution made departure from what he allegedly stated during investigation is to the effect that his wife PW-9 told her that the prosecutrix was teased by the accused persons. Merely because he was termed as a hostile witness his entire evidence does not get effected. Significantly, the evidence of prosecutrix and the doctor does not specifically refer to penetration which is sine qua non for the offence of rape._ _13. There is no material to show that the accused were determined to have sexual intercourse in all events. In the aforesaid background,_ Crl.M.C No.6007 of 2016 11 _the offence cannot be said to be an attempt to commit rape to attract culpability under Section 376/511 IPC. But the case is certainly one of indecent assault upon a woman. Essential ingredients of the offence punishable under Section 354 IPC are that the person assaulted must be a woman, and the accused must have used criminal force on her intending thereby to outrage her modesty. What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman, removing her dress coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman, and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'modesty' is not defined in IPC. The Shorter Oxford Dictionary (Third Edn.) defines the word 'modesty' in relation to woman as follows:_ _"Decorous in manner and conduct; not forward or lowe; Shame-fast; Scrupulously chast."_ _14. Modesty can be described as the quality of being modest; and in relation to woman, "womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct." It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod (1876) 7 C&P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her."_ 8. A reading of Annexures-I & J would make it clear that except from alleging that the petitioner had attempted to commit rape on the 2[nd] respondent, it is clearly stated that after he had allegedly grabbed her, he had wriggled out of his grab, etc. Hence, even going by the Crl.M.C No.6007 of 2016 12 allegations raised therein, it cannot be said that the vital ingredients of the serious offence of attempt to commit rape as per Sec.511 of Sec.376 of the IPC are made out. At best, the prosecution can make out a case of outraging the modesty of a woman, the offence of attempt to commit rape as envisaged in Sec.354 of the IPC. The allegations of the petitioner having committed robbery of the gold chain and having committed the offence as per Sec.66E of the Information Technology Act has been disbelieved by the police themselves, who have deleted those offences. The other offences are those punishable under Sec.452 [house trespass] & Sec.506 (i) [intimidation]. It can be seen that Annexures-I & J are the second round of allegations of attempt to commit rape raised by none other than the 2[nd] respondent and that too against the same accused person (the petitioner herein). The previous round of criminal proceedings for the one at Annexures-A & B, which was quashed by this Court as per Annexure-D order. Even going by the admitted case of the 2[nd] respondent, she had entered into various money borrowed transactions with the petitioner, who was her husband’s close relative and after executing Annexure-C agreement, she had refused to honour the said agreement, which resulted in Annexures-G & H judgment and decree of the civil court secured by the petitioner against Crl.M.C No.6007 of 2016 13 her in regard to realization of the monetary dues from her. The 2[nd] respondent herself had filed an affidavit before this Court in Annexure-D Crl.M.C. Therefore, it can be seen that the first round of allegations has been raised by her after fully suppressing about the abovesaid financial transactions and the said impugned criminal proceedings have been quashed by this Court as per Annexure-D. It is thereafter that the petitioner was constrained to initiate civil litigative proceedings against her for having dishonoured Annexure-C agreement. Now again the 2[nd] respondent is making almost similar allegations of attempt to commit rape and snatching away her gold chain, etc. and commission of offence as per the Information Technology Act, etc. The petitioner would point out that the 2[nd] respondent is making the repeated allegations at Annexures-I & J, only after the petitioner had issued Annexures-E & F lawyer’s notices to her to ensure the strict honouring of Annexure-C agreement, even going by the admitted allegations, the serious offence as per Sec.511 of Sec.376 of the IPC are not made out. Going by the totality of the facts and circumstances of the case, this Court is of the view that the petitioner has made out a strong probable case that the abovesaid allegations have been made by the 2[nd] respondent only on account of extraneous and ulterior Crl.M.C No.6007 of 2016 14 considerations. 9. It has been held by the Apex Court in the case **Shakson Belthissor v. State of Kerala & another** reported in (2009) 14 SCC 466 that where a complaint is found to be vexatious or frivolous or oppressive, the power under Sec.482 Cr.P.C could befittingly exercised to quash such impugned criminal proceedings. In the case **State of Orissa through Kumar Raghvendra Singh & others v. Ganesh Chandra Jew** reported in (2004) 8 SCC 40, the Apex Court has held that the impugned criminal proceedings can be quashed where the complaint involves malafides. In the case **Lambodaran Nair v. State of Kerala** reported in 2003 (1) KLT SN 115 Case No.83 (SC) it has been held by the Apex Court that the power under Sec.482 Cr.PC can be exercised where criminal proceedings were manifestly attended with malafides or to wreck personal vengeance. In the case **Om Prakash v. State of Jharkhand** reported in (2012) 12 SCC 72, the Supreme Court has categorically held that if it appears to the trained judicial mind that continuance of a prosecution will lead to abuse of process of law or miscarriage of justice, the power under Sec.482 of Cr.P.C. must be exercised and the proceedings must be quashed. Crl.M.C No.6007 of 2016 15 10. Hence, on an evaluation of the totality of the concept of facts and circumstances of this case, this Court is inclined to take the view that the impugned criminal proceedings at Annexures-I & J could be subject to interdiction by exercise of the inherent powers of this Court saved and preserved as per Sec.482 of the Cr.P.C. In that view of the matter, it is ordered that the impugned Annexure-J final report/charge sheet filed in Annexure-I Crime No.63/2014 of Kalpakancherry Police Station, Malappuram District, which has now led to the pendency of sessions case S.C.No.5/15 on the file of the First Additional Sessions Court, Manjeri as against the petitioner/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 Investigating Officer concerned as well as before the First Additional Sessions Court, Manjeri, who is dealing with S.C.No.5/15, for necessary information. With these observations and directions, the above Crl.M.C will stand disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd Crl.M.C No.6007 of 2016 16 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE PRIVATE COMPLAINT PREFERRED BY THE 2ND RESPONDENT HEREIN BEFORE THE COURT OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS, TIRUR ON 19-07-2012 AGAINST THE PETITIONER HEREIN.** **ANNEXURE B TRUE COPY OF THE FINAL REPORT IN CRIME NO 401/2012 OF KALPAKANCHERRY POLICE STATION, MALAPPURAM DISTRICT.** - **ANNEXURE C TRUE COPY OF THE RECEIPT DATED 17-05-2013 ISSUED BY THE DEFACTO COMPLAINANT TO THE PETITIONER HEREIN.** - **ANNEXURE D TRUE COPY OF THE ORDER PASSED BY THIS HONOURABLE COURT DATED 20-06-2013 IN CRL M.C NO 2520 OF 2013** - **ANNEXURE E TRUE COPY OF THE LAWYER NOTICE DATED 1301-2014 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT HEREIN.** - **ANNEXURE F TRUE COPY OF THE POSTAL ACKNOWLEDGMENT CARD DATED 16-01-2014 EVIDENCING RECEIPT OF OF THE NOTICE OF DEMAND, BY THE 2ND RESPONDENT HEREIN.** - **ANNEXURE G TRUE COPY OF THE JUDGMENT DATED 30-072014 IN O.S NO 135 OF 2014 OF THE MUNSIFF COURT, TIRUR.** - **ANNEXURE H TRUE COPY OF THE DECREE DATED 30-07-2014 IN O.S NO 135 OF 2014 OF MUNSIFF COURT, TIRUR.** - **ANNEXURE I TRUE COPY OF THE F.I.R. IN CRIME NO 63/2014 OF KALPAKANCHERRY POLICE STATION, MALAPPURAM DISTRICT ALONG WITH THE FIRST INFORMATION STATEMENT OF THE 2ND RESPONDENT HEREIN.** Crl.M.C No.6007 of 2016 17 ## **ANNEXURE J** **TRUE COPY OF THE FINAL REPORT IN CRIME NO 63/2014 OF KALPAKANCHERRY POLICE STATION, MALAPPURAM DISTRICT NOW PENDING AS S.C NO 5 OF 2015 ON THE FILES OF THE ADDITIONAL DISTRICT & SESSIONS COURT-I, MANJERI.**