Rajesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 8[TH] DAY OF OCTOBER 2021 / 16TH ASWINA, 1943** **BAIL APPL. NO. 7568 OF 2021** **CRIME NO.1554/2021 OF ADOOR POLICE STATION, PATHANAMTHITTA DISTRICT** **AGAINST THE ORDER/JUDGMENT IN CRL.M.P. 1077/2021 OF JUDICIAL MAGISTRATE OF** **FIRST CLASS , ADOOR, PATHANAMTHITTA** ## **PETITIONER/SOLE ACCUSED:** **RAJESH AGED 40 YEARS S/O. RAGHAVAN, INDIRA SADANAM, NELLIMUKAL, MUNDAPPALLY MURI, PERINGANAD VILLAGE, ADOOR TALUK, PATHANAMTHITTA DISTRICT 691 551 BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH (VARKALA) T.S.SARATH SAMEER M NAIR SABIKH MOHAMMED V.S GEETHU KRISHNAN HARSHA SUSAN SAM** ## **RESPONDENTS/COMPLAINANT/STATE:** **1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 682 031 2 THE STATION HOUSE OFFICER ADOOR POLICE STATION, PATHANAMTHITTA DISTRICT 691 523** ## **OTHER PRESENT:** **PP S.SEETHA** **THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 05.10.2021, THE** **COURT ON 08.10.2021 DELIVERED THE FOLLOWING:** B.A.No.7568 OF 2021 2 ## **ORDER** Petitioner is the sole accused in crime No.1554/2021 of Adoor Police Station, Pathanamthitta, which is registered for the offences punishable under Sections 450, 376(2)(n), 354A(1)(iv) of IPC. 2. It is alleged that the accused with the intention and preparation to have sexual intercourse with the defacto complainant befriended with her husband and on 11.05.2018 at about 8.00 a.m he trespassed into 'Srinandanam' house at Nellimukal, Mundappalli muri in Peringanadu village, where the defacto complainant is residing and committed rape upon her. Thereafter, on several days he sexually assaulted her at her house. On 29.03.2021 he sexually assaulted the defacto complainant at his house at Peringanadu. Subsequently he defamed the defacto complainant by speaking badly against her and caused mental agony to her, thereby accused committed the offences aforementioned. Apprehending arrest, this petition has been filed. 3. Inspector of Police, Adoor Police Station filed report B.A.No.7568 OF 2021 3 along with copy of FIR and FIS and medical examination report. In the report filed by the Inspector, it has been stated that Section 164 Cr.P.C. statement of the defacto complainant has been taken and about which more investigation has to be conducted and potency test has to be conducted. Mobile phone also has to be seized and send to the cybercell to collect scientific evidence. There is possibility of accused influencing or threatening the defacto complainant, who is a lady with two children and residing alone in the house and hence he seeks for dismissal of the petition. The learned Public Prosecutor also strongly opposes in considering the petition in view of the serious nature of the offence alleged to have been committed by the petitioner. 4. According to the learned counsel for the petitioner, even if the entire allegations against the accused are accepted as true, the offence as alleged will not be attracted. It was only a consensual act on the part of the defacto complainant and hence the accused cannot be implicated in a serious offence like 376(2) (n) IPC and other connected offences. 5. In Uday v. State of Karnataka [AIR 2003 SC 1639 : 2003 KHC 943], the Apex Court while dealing with Sections 375 B.A.No.7568 OF 2021 4 and 376 IPC, it has been held that voluntary consent given by the prosecutrix to sexual intercourse with the accused on a promise that he would marry her cannot be taken as a consent given under a misconception of fact. It was also held that a false promise is not a fact within the meaning of the Code. It is relevant in this context to extract paragraph No.21, which reads thus: “It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.” 6. In Dr.Dhruvaram Murlidhar Sonar v. State of B.A.No.7568 OF 2021 5 Maharashtra & Ors. [AIR 2019 SC 327 : 2019 (1) KLD 242], it is held that the acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of IPC. It is relevant in this context to quote paragraph No.20, which reads thus: “20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.” 7. So from the above settled position of law there would not be any doubt to come to a conclusion that the consensual act B.A.No.7568 OF 2021 6 of sexual intercourse by a prosecutrix with a man will never come within the sweep of definition of rape as contemplated under Section 375 IPC. In the present case, the admitted case is that the defacto complainant is a lady having two girl children aged 15 and 13 years respectively and had been living with her husband. The accused, as per her statement, is a friend of her husband and her allegation is that from 2018 May onwards the accused befriended with her and sexually abused her from May 2018 to March 2021. It is also her admitted case that while working in his concern in the name and style 'M.R. Enterprises' accused made an offer of love with her and initially she did not consent. Then there was a contingency arose due to the default of bank loan and house is about to be attached, then she had to consent and he gave the defacto complainant money and she entrusted the money with her husband and that money was paid in the bank and the threat of attachment could be avoided. Further, her allegation is that, in May, 2018 while the husband and children were not in the house at about 8.00 a.m accused sexually abused her for the first time and occasionally when she was alone he used to come and sexually abuse her. Further she categorically stated that after sometime her husband came to B.A.No.7568 OF 2021 7 know about her relationship with the accused and thereafter in 6[th] June, 2020 the husband left the house thereafter also their relationship continued. So even admittedly by the defacto complainant the sexual relationship with the petitioner/accused was a consensual one and without knowledge of her husband and two daughters, aged 15 and 13 years respectively and her husband also had to leave the house, knowing the illicit relationship between her and the petitioner. In such circumstances, prima facie it appears that the ingredients to attract Section 375 IPC is absent. Section 450 IPC also will not attract since admittedly by her he was a friend of her husband and he came there when she was alone in the house and they had sexual relationship for about 3 years. 8. So when the accused alleged to have sexual intercourse with the defacto complainant with her consent prima facie the ingredients of offence under Section 375 IPC will not be attracted. So also, according to her, the first incident took place in May 2018. But the present complaint has been filed on 02.09.2021. So even if the defacto complainant has got a case that the accused had sexual intercourse with a promise to marry her, prima facie that also is not sustainable since admittedly she B.A.No.7568 OF 2021 8 is a married woman and had been living with her husband and two daughters. So legally she cannot marry another man during the subsistence of the present marriage with her husband. So the question of promise to marry also will not be attracted and prima facie at the best the relationship can only be treated as a consensual act whatever may be the reason. 9. True that the learned Public Prosecutor would contend that subsequently he withdraw from the promise and her husband also left her due to this relationship of the defacto complainant with the petitioner and he is also talking badly about the character of the defacto complainant. But that is not a reason to register a crime against the petitioner when the ingredients to attract the offences are primarily absent. So on evaluating the facts and circumstances, I am of the considered view that prima facie there are no material to attract the offences alleged against the petitioner. Hence, the petition allowed on the following conditions: - (i) The petitioner shall be released, in the event of his arrest, on his executing bond for a sum of Rs.75,000/- (Rupees seventy five thousand only) with two solvent sureties for the like sum each. B.A.No.7568 OF 2021 9 - (ii) He shall make himself available for interrogation by the Police Officer as and when required. - (iii) He shall not try to contact or influence the witnesses or tamper with the evidence; - (iv) He shall not involve in any crime during the period on bail. In case of violation of any of the above conditions, the jurisdictional court will be at liberty to cancel the bail in accordance with the law. This bail application is allowed as above. **Sd/-** shg **M.R.ANITHA JUDGE**