Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 30TH DAY OF NOVEMBER 2020 / 9TH AGRAHAYANA, 1942 Crl.MC.No.8398 OF 2019(H)** **AGAINST SC 23/2019 OF DISTRICT COURT & SESSIONS COURT, KALPETTA CRIME NO.148/2018 OF KENICHIRA POLICE STATION, WAYANAD DISTRICT** ## **PETITIONER/ACCUSED:** **RAJAN, AGED 42 YEARS, S/O.GOPALAN, POOTHADI, WAYANAD** **BY ADV. SRI.K.A.SALIL NARAYANAN** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KEALA, ERNAKULAM-682031 2 XXXX (VICTIM)** ## **OTHER PRESENT:** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.8398 OF 2019(H) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C. No.8398 of 2019 ---------------------------------------------Dated this the 30[th] day of November, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous Case filed on 26.11.2019 under Section 482 of the Code of Criminal Procedure (Cr.P.C.), is as follows:- _"….....to call fr the records in SC 23/19 before the Court of Sessions, Kalpetta and quash all further proceedings pursuant thereto.”_ 2. Heard Sri.K.A. Salil Narayanan, learned counsel appearing for the petitioner (sole accused) and Sri.Saigi Jacob Palatty, learned senior Government Pleader appearing for R1State of Kerala. Though notice to contesting respondent No.2 (lady defacto complainant) has been duly served as can be seen from the endorsement made by the Registry as on dated 7.12.2019, the said party has not entered appearance. 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Annexure-A1 FIR in Crime No.148/2018 of Kenichira Police Station, Wayanad district for Crl.MC.No.8398 OF 2019(H) 3 offence punishable under Sec.376 of the IPC on the basis of the First Information Statement given by the 2nd respondent (lady defacto complainant) on 25.5.2018 at about 3.40 pm in respect of the alleged incidents which happened from 2011 onwards. The police after investigation has filed the impugned Annexure- A2 final report/charge sheet on 30.8.2018 in the aforementioned Annexure-A1 crime No.148/2018 of Kenichira Police Station as against the petitioner (sole accused) for the abovesaid offence as per Sec.376 of the IPC. Thereafter, the learned Magistrate has completed the committal as per C.P.No.19/2018 on the file of the Judicial First Class Magistrate Court, Sultan Bathery and thereafter, the case has been duly committed to the Sessions court, Kalpetta, Wayanad district wherein the case has now been numbered as SC No.23/2019. It is this proceedings at Annexure-A2 final report/charge sheet which has now led to the pendency of the abovesaid sessions case SC No.23/2019 on the file of the Sessions court, Kalpetta, Wayanad district that is essentially under challenge in this petition filed under Sec.482 of the Cr.P.C. It appears that charges have not so far been framed in this case. Crl.MC.No.8398 OF 2019(H) 4 4. The main contention urged by the counsel for the petitioner is to the effect that a mere glance of the impugned criminal proceedings, more particularly, Annexure-A1 FIR and the FIS would make it clear like the day light that the alleged incidents therein are said to have happened for the period from 20.2.2011, whereas FIS and the crime has been lodged as late as on 25.9.2018 and no explanation whatsoever has been given either by the lady defacto complainant at the time of registration of Annexure-A1 crime or by the prosecution at the time of submission of Annexure-A2 final report/charge sheet to even remotely explain the reasons for the long delay for registration of the lodgment of the FIR at the registration of the crime and that the long and unexplained delay would fatally and detrimentally affect the impugned criminal proceedings as it goes to the very root of the matter regarding the very believability and credibility of the prosecution case. Further, it is pointed out that the petitioner and the 2nd respondent were then living in the immediate neighbourhood and that the petitioner and some other people of the locality were forced to question the continued questionable living by the 2nd Crl.MC.No.8398 OF 2019(H) 5 respondent in the locality as it created lot of problems to the residents of the locality due to the conduct of the 2[nd] respondent in entertaining male visitors in her house in the night, wherein she was staying alone and that too, in a village locality, which is essentially in the very proximity of an ‘Adivasi’ colony and some of the persons of the residential locality under the guidance of the petitioner had taken recourse to various steps to request the authorities concerned to take effective action against R2 as otherwise continued wayward life of living was causing extremely bad name to the entire residents of the locality and that it is only account of the action taken by some of the persons of the locality under the leadership of the petitioner that the 2[nd] respondent, who had animosity and malice against the petitioner has made instant false allegations. 5. Further that, the petitioner was an unmarried man at the time of the alleged incidents and that later, he got married and that if the 2[nd] respondent had alleged that the incidents had happened only after his marriage, then the defacto complainant could be imputed with the knowledge Crl.MC.No.8398 OF 2019(H) 6 that he is married, as she is living in his immediate neighbourhood and her plea that consent was obtained on the basis of alleged promise to marry would have crumbled to the ground. This is so as promise made by a married man to a lady that the former would marry the latter, is even otherwise unenforceable as it is opposed to public morals and public policy as envisaged in Sec.23 of the Indian Contract Act and further if such promise is fulfilled, it would amount to committing the offence of bigamy as per Sec.494 IPC. So it is sensing these legal hurdles that R-2 has developed her false story that the alleged incidents of promise to marry and sexual incidents have happened in February 2011, long prior to his marriage. This has so done to entrap the petitioner in the criminal proceedings falsely and maliciously on account of the lady’s animosity and malice. 6. Both sides have been heard in extenso. An examination of Annexure-A1 FIS given on internal pages 5 & 6 of Annexure-A1 FIR would make interesting reading. The FIS is lodged as late as on 23.5.2018 at about 5.45 p.m. in the evening. The 2[nd] respondent is said to be a lady aged 42 years Crl.MC.No.8398 OF 2019(H) 7 at that time. Her case is that she has studied upto 10[th] standard and that while she was residing in the said locality, a love affair had developed between the 2[nd] respondent and the petitioner and that both of them belong to the same community and on 20.2.2011 in the night at about 11 p.m., he had gone to her residence, when her other family members were sleeping and he embraced her and had sexual relationship. There is a stray averment therein that the petitioner had forcible sexual relationship with her. But in the same breath, she would also say that the petitioner had given her a promise that he would marry her and it is on this basis, they had sexual relationship. That later, she came to know that the petitioner is planning to marry someone else and she felt cheated as the petitioner had resiled from his promise and hence, she was constrained to approach the police with the abovesaid First Information Statement for registration of the crime etc. No explanation whatsoever has been given either by the 2[nd] respondent-lady defacto complainant or by prosecution in the impugned Annexure-A2 final report to even remotely deal with any reason for the long and substantial delay as Crl.MC.No.8398 OF 2019(H) 8 between the incident which is said to have happened on 20.2.2011 and lodging of the FIR as late as on 23.5.2018. The alleged promise to marry said to have been made by the accused to the 2[nd] respondent sometime before February, 2011, the solitary sexual incident has happened on 20.2.2011. The complaint is made on 23.5.2018, when the 2[nd] respondent allegedly came to know that the petitioner is taking steps to marry another lady. It is by now well settled that there is a fine and substantial distinction between the sexual intercourse so as to constitute the vital ingredients of offence of rape as per sec.375 of the IPC, which is punishable under Sec. 376 thereof on the one hand and the consensual sexual relationship between two full grown adults. 7. Before dealing with the facts of the case, it will be pertinent to refer to the legal principles laid down by the Apex Court and various High Courts in the matter of distinction of rape as per Sec.376 I.P.C and consensual sexual relationship between the parties. It is by now well established that there is a Crl.MC.No.8398 OF 2019(H) 9 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 decisions as in _**Uday v. State of Karnataka,**_ reported in (2003) 4 SCC 46 and _**Deelip Singh @ Dilip Kumar v. State of Bihar,**_ reported in (2005) 1 SCC 88, where 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.,**_ reported in 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 it will be rather difficult to Crl.MC.No.8398 OF 2019(H) 10 hold 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 lived together. In _**Dhruvaram Murlidhar Sonar**_ ’s case (supra), the Apex Court had elucidated the principles in that regard and it has 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 undergo sexual relationship was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC. 8. The said issue is the subject matter of the catena of rulings of the Apex Court in decisions as in the Division Bench of the Calcutta High Court in _**Jayanti Rana Panda v. State of West Bengal and anr.**_ [1984 Crl.RJ 1535] =[1985 KHC 1148] in para No.7 has dealt with the said issue and has held that for making out a case of alleged false promise which was Crl.MC.No.8398 OF 2019(H) 11 subsequently breached so as to attract misconception of fact as understood in Sec.90 of the IPC so as to vitiate the consent for the sexual relationship, the prosecution should have a serious case that the accused had no intention of keeping the said promise right from the commencement of the relationship and that the failure to keep the promise to marry at a future uncertain date due to reasons that may not be very clear and by the passage of time may not amount to misconception of fact at the instance of the Act itself and in order to attract the concept of misconception of fact as administered in Sec.90 of the IPC, the said fact must have an immediate relevance and should be proximate in time. Further that if two full grown adults consent to enjoy each other’s company including sexual relationship on the alleged promise of marriage and continues to indulge in such activity for quite some time, then said act needs to be construed essentially as an act made out of passionate desires and the promiscuity of two full grown adults and their desire to enjoy each other’s company including sexual relationship and it cannot that to be seen as an act induced by misconception of fact and that Sec.90 of the IPC cannot be called in aid such a Crl.MC.No.8398 OF 2019(H) 12 case and unless court can be assured that for the very inception, the accused had never intended to marry her etc. 9. The said issue has also been a subject matter of consideration of a two Judge Bench decision of the Apex Court in _**Pramod Suryabhan Pawar v.State of Maharashtra**_ [(2019) 9 SCC 608], _**Maheshwar Tigga v. State of Jharkhand**_ [2020 (2) KLD 589] (SC) etc. The said issue has been elaborately and exhaustively considered by the lordships of the Supreme Court in the aforecited _**Pramod Suryabhan Pawar’**_ s case (supra) [(2019) 9 SCC 608]. 10. It has been inter alia held in para Nos. 9, 10, 12 & 13 of the abovesaid decision of _**Pramod Suryabhan Pawar’**_ s case (supra) [(2019) 9 SCC 608] that consent with respect to 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed Act and the individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction would consent to such an action. 11. Further that, there is a fine distinction between false Crl.MC.No.8398 OF 2019(H) 13 promise and breach of promise and the necessary fact to establish that consent was vitiated by misconception of fact as understood in Sec.90 of the IPC arising out of a alleged false promise to marry for sexual consent, the promise to marry should be false and intention of the maker at the time of making of the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, then only the question of misconception of fact would arise. On the other hand the breach of promise cannot be said to be a false promise and specifically in the context of promise to marry, and that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith and subsequently not fulfilled. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. That to establish whether the consent was vitiated by misconception of fact arising out of a false promise to marry to two propositions to be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being Crl.MC.No.8398 OF 2019(H) 14 adhered to at the time it was given and the false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act. 12. It will be profitable to refer to para Nos. 14 & 18 of the abovesaid decision of the Apex Court in _**Pramod Suryabhan Pawar’**_ s case (supra) [(2019) 9 SCC 608], which reads as follows:-: _“14. In the present case, the “misconception of fact” alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v. State of Chhattisgarh, this Court held”(SCC para 12)_ _“12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 IPC and can be convicted for the offence under Section 376 IPC.”_ _Similar observations were made by this Court in Deepak Gulati v. State of Haryana (Deepak Gulati): (SCC p.682, para 21)._ _“21..........There is a distinction between the mere breach of promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused;”_ Crl.MC.No.8398 OF 2019(H) 15 _“18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.”_ 13. The said case considered by the Apex Court in Pramod Suryabhan Pawar’s case (supra) [(2019) 9 SCC 608] dealt with a case where allegations of rape were based on alleged false promise to marry and in the said case, the complainant alleged that on false promise of marry her, the appellant established sexual relationship with her on multiple occasions over a period of six years. It was noted by the Apex Court therein the allegations in the FIR did not on their face indicate that the promise by the appellant was false or that the complainant engaged in the sexual relationship on the basis of the said promise or that the appellant had promised to marry the complainant and that it was done in bad faith with the intention to deceive her etc. In the said case, it was found that the accused’s failure in 2016 to fulfil his alleged promise said to Crl.MC.No.8398 OF 2019(H) 16 have been made in the year 2008 cannot be construed to mean the promise itself was false. The allegations therein indicated that the complainant was aware that there existed obstacles to marrying the appellant/accused since 2008, and that she and the appellant/accused continued to engage in sexual relations long after their getting married had become a disputed matter and even thereafter, the complainant travelled to visit and reside with the appellant/accused at his postings and allowed him to spend his weekends at her residence. It was therefore held that the allegations in the FIR itself belie the case that she was deceived by the accused’s promise of marriage and that even taking into account the facts set out in the complainant’s statements are accepted in totality, no offence under Section 375 of the IPC has occurred etc. 14. In the instant case, there is only a bald allegation that some time prior to February 2011 there developed a love affair between the petitioner and the 2nd respondent and that petitioner had given assurance that he would marry her. Thereafter, the case is that on a day (20.2.2011), the petitioner had come to her residence at 11 p.m in the night, when her other Crl.MC.No.8398 OF 2019(H) 17 family members were sleeping in the said house and there they had sexual relationship as petitioner had promised her that he would marry her. The subsequent events are not in any manner stated by her. All what is stated is that sometime before the lodging of the FIR/FIS on 23.5.2018, she came to know that the petitioner may marry another lady and she felt cheated and hence, she has given the abovesaid complaint which resulted in the impugned criminal proceedings. The alleged promise is said to have been made some time prior to February 2011. Then, the breach of promise has occurred, is not in any manner stated with clarity, except to say that sometime before the lodging of the FIS, she came to know that the petitioner is taking steps to marry another lady on 23.5.2018. The alleged sexual incident is said to have happened only on a solitary occasion viz. 20.2.2011. None of the incidents of the relationship between the parties immediately after 20.2.2011 and before 23.5.2018 are even remotely dealt with about become appear. Therefore, even if it is assumed that the allegations in FIS are broadly correct, then there are no materials to hold that the alleged promise made by the petitioner was false right from the commencement of the Crl.MC.No.8398 OF 2019(H) 18 relationship and that he had always intended to deceive her and it is on the basis of this fraudulent act and deception that he could obtain the lady’s consent to have sexual relationship and that too, on a single occasion. Further, there are no precise details as to when the assurance has been made. No details are forthcoming for the period after the occurrence of the alleged solitary sexual incident on 20.2.2011 upto the lodging of the FIR on 23.5.2018 as to order satisfied in their relationship. 15. Therefore, it cannot be said that the alleged promise to marry is either false right from the beginning or that it had any nexus with the proximity of time with the alleged occurrences. Hence, even if it is assumed for the argument sake that the allegations in the impugned criminal materials as alleged by the 2nd respondent are broadly assumed to be correct, then the conclusion is that the solitary sexual incident would have happened on the basis of consent of two born full grown adults. That cannot be the subject matter of criminal culpability and hence, the vital ingredients of offence of rape as per Sec.375 IPC are conspicuously absent in this case. That apart, looking at the extreme brevity of the details in the Crl.MC.No.8398 OF 2019(H) 19 impugned criminal proceedings, there appears to be some strong force in the submission of the petitioner that allegations have been made falsely out of extraneous and ulterior considerations etc. This Court need not make any final determination of such issues as it has already been held that vital ingredients of offence of rape are not made out in this case. Hence, very initiation and continuance of the impugned criminal proceedings is grave abuse of the process of court and it will inevitably lead to the acquittal of the accused and its continuance would be nothing but gross wastage of the precious resources of time and money spend on the judicial organs of the State as well as the prosecution machinery and investigation agency. Hence, the interdiction of the impugned criminal proceedings by resort to the extraordinary inherent powers conferred on the Court under Sec.482 of the Cr.P.C. is called for. 16. Further, as mentioned hereinabove, no explanation whatsoever for the long and unexpected delay in lodging of the FIR. The incident is said to have been occurred in February 2011 and the FIR is lodged as late as on 23.05.2018. It has been held by the Apex Court and various High Courts in various Crl.MC.No.8398 OF 2019(H) 20 decisions as in State of _**Andhra Pradesh v. Madhusuhan Rao**_ [2008 (15) SCC 582] that the delay in lodging FIR will more often than not result in embellishments and exaggerations, which are creations of afterthoughts and delayed report not only gets bereft of the advantage of spontaneity, but the danger of the introduction of coloured versions, exaggerated accounts of the incident or a concocted story as a result of deliberations and consultations, also creeps in, which casts a very serious doubt on its veracity of the prosecution story. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained by the prosecution. Further when the substratum of evidence given by the complainant is found to be unreliable, the prosecution case is to be rejected in its entirety. Admittedly, even remotely no explanation has been given for the delay in the lodging of this case. The very substratum of the case is even otherwise has crumbled down as the vital ingredients of the offence of rape are absent in this case. Hence, the impugned criminal proceedings are liable for quashment, in view of these aspects. 17. Accordingly, it is ordered that the impugned Crl.MC.No.8398 OF 2019(H) 21 Annexure-A2 final report/charge sheet filed in Annexure-A1 crime No.148/2018 of Kenichira Police Station, Wayanad district, which has led to the pendency of sessions case, SC No.23/2019 on the file of the Sessions court, Kalpetta as against the petitioner/accused and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. 18. The petitioner will produce certified copy of the order before the investigating officer concerned as well as before the Sessions court, Kalpetta, who is dealing with SC No.23/2019 for necessary information. With these observations and directions, the above Criminal Miscellaneous case will stand finally disposed of. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** Skk//20112020 Crl.MC.No.8398 OF 2019(H) 22 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 COPY OF THE FIRST INFORMATION REPORT IN CRIME 148/18 OF THE KENICHIRA POLICE STATION ANNEXURE A2 FINAL REPORT IN CRIME NO.148/18 OF THE KENICHIRA POLICE STATION** **RESPONDENTS' EXHIBITS: NIL**