Prakash Philipose v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 13TH DAY OF DECEMBER 2019 / 22ND AGRAHAYANA, 1941** ## **Crl.MC.No.8197 OF 2019(D)** **AGAINST THE ORDER/JUDGMENT IN CP 43/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS, RANNI** **CRIME NO.816/2019 OF RANNI POLICE STATION, PATHANAMTHITTA** ## **PETITIONER/ACCUSED:** **PRAKASH PHILIPOSE, AGED 45 YEARS S/O. LATE PHILIPOSE, MODAYIL VEEDU, JANDIACKAL, CHERUKULANJI POST, VAADASSARYKKERA, RANNY, PATHANAMTHITTA DISTRICT, PIN 689 673** **BY ADV. SRI.R.VENUGOPAL** ## **RESPONDENTS/DE FACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KERALA PIN 682 031. 2 VICTIM, X 3 SUB INSPECTOR OF POLICE, RANNI POLICE STATION, RANNI, PATHANAMTHITTA DISTRICT, PIN 689 711 R2 BY ADV. JULIE MATHEWS R2 BY ADV. SRI.K.RAJESH SUKUMARAN** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.8197 OF 2019(D)** **2** # **(CR)** # **ALEXANDER THOMAS, J.** # **=========================== Crl.M.C No.8197 of 2019** **===========================** Dated this the 13[th] day of December, 2019 ## **ORDER** The prayers in the above Crl.M.C filed under Sec.482 of the Cr.P.C are as follows: “............. to call for the records leading to Annexure A1 First Information Report and Annexure A2 Final Report and to quash/terminate the prosecution proceedings in C.P.NO.43/2019 pending before the Judicial First Class Magistrate Court Ranni in Crime No 816/2019 of Ranni Police Station.” 2. Heard Sri.R.Venugopal, learned counsel appearing for the petitioner/accused and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for respondents 1 & 3 and Sri.K.Rajesh Sukumaran, learned counsel appearing for the respondent No.2. The petitioner seeks quashment of the impugned criminal proceedings at Annexure-A3 final report/charge sheet filed in Annexure-A1 Crime No.816/2019 of Ranni Police Station, which led to the pendency of committal proceedings C.P.No.43/2019 on the file of the Judicial First Class Magistrate’s Court, Ranni. **Crl.MC.No.8197 OF 2019(D)** **3** 3. The petitioner herein has been arrayed as the sole accused in the instant Annexure-A1 Crime No.816/2019 of Ranny Police Station, which has been registered for offences punishable under Sec.376(2)(f) of the Indian Penal Code, on the basis of the FIS given by the lady de facto complainant on 17.06.2019 at about 6.50 p.m., in respect of the alleged incidents which happened for the period from 01.07.2018 to 07.06.2019. 4. The prosecution case in short is that the petitioner aged 45 years is the father of the lady victim now aged 20 years and that on a day in July, 2018, when she was alone in the house, the petitioner had come there and forced her to lay down on a cot and removed her dresses and had forcible sexual relationship with her and that out fear and shame, she did not disclose this to anybody as she was threatened by her father. Later the petitioner used to constantly harass her by touching her body when she was alone and that on 07.06.2019 he had again committed forcible sexual intercourse on her and out of fear she had earlier not informed the police, etc. 5. The learned counsel for the petitioner would point out that the abovesaid allegations are false and motivated and as a matter of fact, the petitioner being her father had admonished her to stop a love **Crl.MC.No.8197 OF 2019(D)** **4** affair with a young man and it is out of this animosity, the victim has made the false allegations as late as on 17.06.2019 in respect of the alleged incidents which have happened in the year 2018. Further, the counsel for the petitioner would point out that there are no specific allegations that the petitioner has committed sexual intercourse on the victim and all what is alleged in the FIS is “കട�ലലില്‍ കലിടതലി എനന്നെ ബലമമായലി ലലലൈംഗലികമമായലി പപീഡലിപലിചച.” 6. Further it is alleged in the First Information Statement that the last incident was on 7.6.2019. The Doctor has recorded the version of lady victim about the above incidents. However on Page 5 Serial No.9, it is certified by the Doctor that “Hymen:Intact”. In Serial No.12 given on Page 6 of the report in respect of “Vagina”, it is recorded by the Doctor as “Not Seen”. The handwriting of the Doctor in that regard is not legible and it appears that the words used by her are “Not Seen”. It is not known to this Court as to what exactly is the meaning and relevance of said observation. It is also to be noted that the Doctor has not noted any injuries in the genital/vaginal area. In the concluding part the Doctor has recorded in Page 9 of said Report that “As hymen intact vaginal swab and smear not collected”. Further on Page 10 it is **Crl.MC.No.8197 OF 2019(D)** **5** reported by the Doctor that “The injuries on the body could have sustained as alleged”. In the light of the abovesaid details given by the Doctor mentioned herein above this Court is not in a position to appreciate how the Doctor has opined in Page 10 of the Report that her findings of examination are consistent with the history of alleged sexual assault, more particularly as the Doctor has certified that the hymen is intact. 7. This Court as per Annexure-A2 order dated 22.08.2019 in B.A.No.5891/2019 has granted anticipatory bail to the petitioner in relation to this case. As mentioned hereinabove, the offences alleged in the impugned Annexure-A1 FIR in Crime No.816/2019 of Ranni Police Station is the one as per Sec.376 (2)(f) of the Indian Penal Code. Now the Investigating Agency has completed the investigation and has filed the impugned Annexure-A3 final report/charge sheet on 15.10.2019. It appears that after the intense investigation, the Investigating Agency themselves have been fully satisfied that some of the cardinal allegations made by the 2[nd] respondent victim are false and fabricated and the allegations of rape are totally unfounded and hence, now the Investigating Agency has included only the offence as per Sec.511 of Sec.376(2)(f)(n) and Sec.354 of the IPC. In other words, the **Crl.MC.No.8197 OF 2019(D)** **6** Investigating Agency themselves is convinced about the falsity of the main allegations regarding rape and has deleted the offences as per Sec.376(2)(f) of the IPC. From the pleadings and materials on record and more particularly, from the submissions made by the learned Advocate appearing for the petitioner/accused and the learned Advocate appearing for the 2[nd] respondent/victim, it appears that the 2[nd] respondent the lady victim is none other than the daughter of the petitioner/accused and the initial allegation made by her was to the effect that the petitioner/accused has committed the sexual assault on her. Now the police after detailed probe has found that the said allegations are found to be false and the police after investigation has deleted the offence as per Sec.376 of the IPC and substituted the same with the one as per Sec.511 of Sec.376 of the IPC (attempt to commit rape). It is pointed out that there was serious marital discord between the petitioner/accused and his wife, who is the mother of the 2[nd] respondent victim and that it is only out of the said matrimonial disputes that the abovesaid false allegations have been made in the instant crime. 8. Further, on an analysis of the prosecution materials, it is made clear that none of vital ingredients of the offence of attempt to **Crl.MC.No.8197 OF 2019(D)** **7** commit rape as per Sec.511 of Sec.376 of the IPC is made out in this case. It is pertinent to refer to the dictum laid down by the Apex Court in decisions as in _**Amankumar and another v. State of Haryana**_ [AIR (2004) SC 1497] = [(2004) KHC 959 (SC)] paragraph No.11 thereof, wherein the Apex Court has held that in order to find an accused guilty of an attempt with intent to commit a rape, the prosecution has necessarily establish beyond reasonable doubt that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he indended to do so at all events and notwithstanding any resistance on her part. That indecent assaults are often magnified into attempts at rape and 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, convincing materials must certainly exist. Surrounding circumstances may also throw beacon light on that aspect. It will be pertinent to refer the aforecited decision of the Apex Court in _**Amankumar's case**_ (supra) [AIR (2004) SC 1497], paragraph No.11, which reads as follows: “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 **Crl.MC.No.8197 OF 2019(D)** **8** 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 indicating 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.” 9. After hearing both sides and after careful evaluation of the facts and circumstances of this case and after taking into account the pleadings and materials on record, it is clear that there are no objective materials whatsoever or other relevant facts and attendant circumstances which would remotely show that the petitioner/accused was determine to have sexual intercourse with the victim in all events and that aspects highlighted by the prosecution in the final report will not be sufficient to hold that the serious offence of attempt to commit rape as per Sec.511 of Sec.354 of the IPC is made out. At best, the prosecution case would make out a case of Sec.354 of the IPC in regard to the aspects relating to the violation of the modesty of the woman. Therefore, on these grounds the mainly alleged offence of attempt to commit rape as per Sec.511 of Sec.376 of the IPC is only to be quashed in this case and it is so declared and ordered. Then the only remaining offence alleging against the petitioner is the one as per Sec.354 of the **Crl.MC.No.8197 OF 2019(D)** **9** IPC (violating the modesty of the woman). 10. It is now indisputable that the matter has been fully settled in the family and the 2[nd] respondent herself has stated in Annexure-A4 affidavit and has stated that the allegations are falsely made by her at the instigation of her mother and relatives and that she is no longer interested to continue with the impugned criminal proceedings. It is by now well established by a series of rulings of the Apex Court and various High Courts, including this Court in decision as in _**Shimbu v. State of Haryana**_ , [2014 (13) SCC 318] that a serious offence as per Sec.376 of the IPC may not be the subject matter of quashment of the impugned criminal proceedings on the ground of the settlement between the parties. Such a strict approach may not apply in a case involving the offence as per Sec.354 of the IPC, especially when there is a bonafide settlement between the parties. Hence, this Court finds that both on merits and on considering the facts and circumstances of this case and that this Court has sufficient grounds to interdict the impugned criminal proceedings by exercising exercising the inherent powers conferred under Sec.482 of the Cr.P.C or otherwise it may amount to severe miscarriage of justice if the continuance of the abuse of the process of the court is not interfered with. **Crl.MC.No.8197 OF 2019(D)** **10** 11. Sri.Saigi Jacob Palatty, learned Public Prosecutor would now submit on the basis of instructions of the Investigating Officer concerned that the Investigating Officer has conducted a detailed enquiry in the matter and has also recorded the statement of the 2[nd] respondent-victim on 25.11.2019, whereupon she has apprised him that there is a bonafide settlement of all disputes between the victim and the accused, who is her father and that she does not want to proceed the matter any further and that the matter may be quashed in exercise of the powers conferred under Sec.482 of the Cr.P.C. 12. Sri.K.Rajesh Sukumaran, learned counsel appearing for the 2[nd] respondent would also urge on the basis of instructions of his party that since the 2[nd] respondent is a young woman of marriageable age, it will be highly detrimental to her, if the impugned proceedings are allowed to continue and it is her own better interest that this Court may exercise its discretion by taking in force of the inherent powers under Sec.482 of the Cr.P.C for quashment of the impugned criminal proceedings. 13. After hearing all the parties concerned, this Court is of the considered view that the inherent powers conferred on this Court under Sec.482 of the Cr.P.C could be befittingly invoked in the **Crl.MC.No.8197 OF 2019(D)** **11** facts and circumstances of this case. In that view of the matter, it is ordered that the impugned Annexure-A3 final report/charge sheet filed in the impugned Annexure-A1 Crime No.816/2019 of Ranni Police Station, Pathanamthitta, which has now led to the pendency of committal proceedings C.P.No.43/2019 on the file of the Judicial First Class Magistrate’s Court, Ranni (arising out of Crime No.816/2019 of Ranni Police Station) will stand quashed and all further proceedings emanated therefrom against the petitioner/accused will stand quashed. 14. 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 necessary information. With these observations and directions, the above Crl.M.C will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** vgd **Crl.MC.No.8197 OF 2019(D)** **12** ## **APPENDIX** |**PETITIONER'S/S**|**EXHIBITS:**| |---|---| |**ANNEXURE A1**|**CERTIFIED COPY OF THE FIR IN CRIME NO.**| ||**816/19 OF RANNI POLICE STATION.**| |**ANNEXURE A2**|**PHOTOCOPY OF THE ORDER IN BAIL**| ||**APPLICATION NO. 5891/19**| |**ANNEXURE A3**|**CERTIFIED COPY OF THE FINAL REPORT FILED**| ||**IN CRIME NO. 816/19**| |**ANNEXURE A4**|**AFFIDAVIT OF THE SECOND RESPONDENT.**|