Muhammed Shafeer and Rashe Nasrin v. State of Kerala and Victim

## **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.3282 OF 2019(A)** **CRIME NO.44/2019 OF Mavoor Police Station , Kozhikode** ## **PETITIONER/S:** - **1 MUHAMMED SHAFEER, AGED 30 YEARS S/O.AHMMEDKUTTY, RESIDING AT KAMBALATH HOUSE, MAVOOR.P.O, KOZHIKODE DISTRICT, PIN-673661.** - **2 RASHA NASRIN, AGED 23 YEARS D/O.AHAMMEDKUTTY, RESIDING AT KAMBALATH HOUSE, MAOOR.P.O, KOZHIKODE DISTRICT, PIN-673661.** **BY ADVS. SRI.J.R.PREM NAVAZ SHRI.SUMEEN S.** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** - **2 VICTIM** **R2 BY ADV. AJOY VENU** ## **OTHER PRESENT:** ## **SMT.PRIYA SHANAVAS,PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.7.2019 THE COURT ON 19.08.2019, PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 3282 of 2019 ================== Dated this the 19[th] day of August, 2019 ## **O R D E R** The 1[st] petitioner herein is the brother of the 2[nd] petitioner herein. The two petitioners herein have been arrayed as accused 1 and 2 in the impugned Anx. A-1 Crime No. 44/2019 of Mavoor Police Station, which has been registered for offences punishable under Secs.376(2)(n), 313, 324 and 323 of the I.P.C. on the basis of the FI statement given by the 2[nd] respondent lady defacto complainant on 23.1.2019, at 4 pm in respect of the alleged incidents which had happened from 18.3.2016 to 21.1.2019. It is now stated by the learned Advocates appearing for the petitioners (accused) and the 2[nd] respondent lady defacto complainant that the disputes between the parties have been amicably settled and that the 2[nd] respondent is no longer interested to pursue the impugned prosecution steps and that she has no objection in the quashment of the impugned criminal proceedings. 2. Heard Sri.J.R.Prem Navaz, learned counsel appearing for the petitioners accused, Smt.Priya Shanavas, learned Prosecutor appearing for R-1 State of Kerala and Sri.Ajoy Venu, learned counsel Crl.M.C.3282/19 - : 3 :- appearing for the 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. Hence going by the abovesaid well settled legal position it is may not right and proper for this Court to consider the plea for quashment of the impugned criminal proceedings which include offence as per Sec. 376 of the Cr.P.C. on the ground of settlement Crl.M.C.3282/19 - : 4 :- between the parties. However, learned Advocates appearing for the petitioners would now urge that the main ground for quashment is that even if it is assumed that the main allegations in the impugned prosecution materials are assumed to be correct, then the alleged incidents could have happened only on the basis of the consensual sexual relationship between the parties and that thereafter vital ingredients of rape as per Sec. 376 of the I.P.C. are not made out. 5. 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 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**_ Crl.M.C.3282/19 - : 5 :- _**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 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. 6. Now it is pertinent to advert to some of the crucial factual aspects involved in this case, more particularly as evident from the Crl.M.C.3282/19 - : 6 :- admitted allegations case put forth by the 2[nd] respondent in Anx. A-1 FIS given on pages 17 to 20 of the paper book of this Crl.M.C. and then this Court would examine the tenability of the plea as to whether the incidents alleged therein could have been happened only on the basis of the consensual sexual relationship between the parties. 7. Both sides have elaborately taken to this Court's attention to the contents of Anx. A-1 FIS given on pages 17 to 20 of of the paper book of this petition. The prosecution case as made out in Anx. A-1 is that the 2[nd] respondent lady defacto complainant, aged 29 is a married woman and having two daughters aged 10 years and 7 years and that she has been living separately from her husband for some time. That about 2 years ago, she had met the 1[st] petitioner in a shop and that she had prior acquaintance with the 1[st] petitioner as both of them were school mates during their school days and that they renewed their acquaintanceship and had exchanged their addresses and contact mobile phone number and that later it developed a intense love affair between them. That on 18.2.2016 at about 12 in the mid night, the 1[st] petitioner had gone to her residence, where she was staying with her daughters and he had assured that he would marry her and on that assurance, he had forced to have sexual Crl.M.C.3282/19 - : 7 :- intercourse and later, he used to repeatedly gone to her residence and that since she was having marital discord with her husband, she was also amenable to the proposal to marry the 1[st] petitioner. That later, she discussed the matter with her husband and he had called the 1[st] petitioner and told him that if he is interested to marry the 2[nd] respondent, he may go forward and that the 2[nd] respondent's husband is willing to divorce her so that the petitioner could marry the 2[nd] respondent. That later, on account of the abovesaid sexual relationship between the 1[st] petitioner and 2[nd] respondent, the latter had become pregnant for two times and based on the 1[st] petitioner's request, she has undergone abortion. That later also she became pregnant and she had taken some pills as requested by the 1[st] petitioner, which resulted in abortion. Later the 1[st] petitioner had changed his colours and started neglecting her and was not serious in proceeding with the proposal to marry her and that she insisted that she will insist for marrying the petitioner at any cost. Even after repeatedly trying to contact the 1[st] petitioner through mobile phone, he had not attended mobile telephone calls. Later the 2[nd] respondent had gone to the 1[st] petitioner's residence and then the 2[nd] petitioner who is the sister o the petitioner, had an altercation with the 2[nd] Crl.M.C.3282/19 - : 8 :- respondent and that the 2[nd] petitioner had slapped on the face of the 2[nd] respondent. That later the 1[st] petitioner had abandoned the marriage proposal and the 2[nd] respondent felt cheated and she has given the instant complaint/ FIS to the Police on 23.1.2019, which has led to the institution of the impugned Anx. A-1 crime No.44/2019 of Mavoor Police Station for the abovesaid offences. It appears that the offences alleged as against the 2[nd] petitioner (A-2) are as per Secs.322 and 324 of the I.P.C. 8. After hearing both sides and after careful evaluation of the allegations disclosed in Anx.A-1, it can be seen that the 2[nd] respondent lady defacto complainant is a married lady aged 29 years and though she is living separately from her husband, she does not have any case that she has lawfully obtained divorce from her husband and her only case is that her husband had assured that he is willing to divorce her, if she wants to marry the 1[st] petitioner. The abovesaid allegations in Anx.A-1 would disclose that the parties entered into an intense love affair, which led to frequent sexual relationships and that based on the assurance made by the 1[st] respondent that he would marry the 2[nd] respondent, who is a married lady, the 2[nd] respondent has also consented for sexual relationship Crl.M.C.3282/19 - : 9 :- and it resulted in even pregnancies, which she aborted as requested by the 1[st] petitioner, etc. Therefore, it is evidently clear that two adult persons have voluntarily entered into sexual relationship based on their own moral and ethical choices. The promise said to have been made by the 1[st] petitioner, who is an unmarried man, to the 2[nd] respondent, who is a married lady, that the former would marry the latter, cannot be said to have any legal efficacy as the 2[nd] respondent herself would claim that she is married to another person. As held by the Apex Court in the aforecited judgments, where a man and a woman continues to have sexual relationship for quite some time, then it is very difficult to hold that a case of rape is made out and such incidents could have happened only on the basis of consensual sexual relationship and hence vital ingredients of the offence of rape as per Sec. 376 of the I.P.C. have not been made out. 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 fact as understood in Sec.90 of the IPC. That apart, promise or assurance said to have been made by a unmarried man to a married woman that the former would marry the latter, when the woman has Crl.M.C.3282/19 - : 10 :- not even secured lawful divorce from her husband, cannot be said to have any legal efficacy. The inevitable conclusion is that two grown up adults based on their own moral and ethical choices have voluntarily entered into sexual relationship and therefore, it cannot be said that the vital ingredients of offence of rape as per Sec. 376 of the I.P.C. are made out in the instant case. Though the settlement arrived at between the parties as stated in Anx. A-2 affidavit sworn to by the 2[nd] respondent cannot be the basis to quash the impugned criminal proceedings in respect of the offence as per Sec. 376 of the I.P.C., the said settlement can certainly be looked into as far as quashment of the impugned criminal proceedings for offences as per Secs.323 and 324 as far as the 2[nd] petitioner (sister of the 1[st] petitioner) is concerned. Hence this Court of the considered view that the continuance of the present impugned criminal proceedings based on Anx. A-1 FIR will be an abuse of the process of the court and hence the same could be interdicted in the present proceedings under Sec. 482 of the Cr.P.C. 9. In the light of the abovesaid aspects, it is ordered in the interest of justice that the impugned Anx. A-1 FIR filed in Crime No. 44/2019 of Mavoor Police Station, and all further proceedings arising Crl.M.C.3282/19 - : 11 :- therefrom pending against the accused persons will stand quashed. The petitioners 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.3282/19 - : 12 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**THE CERTIFIED COPY **|**OF THE FIR IN CRIME**| |---|---|---| ||**NO.44/2019 OF MAVOOR POLICE STATION,**|| ||**KOZHIKODE DISTRICT.**|| |**ANNEXURE A2**|**THE AFFIDAVIT, SOLEMNLY AFFIRMED BY THE 2ND**|| ||**RESPONDENT/DEFACTO**|**COMPLAINANT**<br>**DATED**| ||**13.04.2019**||