Rakesh Ramar v. State of Kerala and Victim X

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941 Crl.MC.No.5181 OF 2019(G)** **AGAINST THE ORDER/JUDGMENT IN CC 2192/2018 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM** **CRIME NO.1555/2018 OF Ernakulam South Police Station , Ernakulam** ## **PETITIONER/S:** **RAKESH RAMAR, AGED 30 YEARS S/O.R.RAMAR, C2/B, HMT QUARTERS, HMT COLONY, KALAMASSERY, ERNAKULAM.** **BY ADVS. SRI.MANU TOM SRI.BALU TOM** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2 VICTIM X R2 BY ADV. K.R.JITHIN R2 BY ADV. SRI.SHAKTHI PRAKASH** ## **OTHER PRESENT:** ## **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 5181 of 2019 ================== Dated this the 10[th] day of December, 2019 **O R D E R** The petitioner has been arrayed as the sole accused in the impugned Anx.A FIR in Crime No.1555/2018 of Ernakulam Town South Police Station, which has been registered for offences punishable under Sec.511 of Sec. 376 of the I.P.C. (attempt to commit rape). The said crime has been registered on the basis of the first information statement given by the 2[nd] respondent lady defacto complainant on 17.9.2018 at about 4.57 p.m. in respect of the alleged incident, which happened on 6.9.2018 at about 1 p.m. The Police, after investigation has filed the impugned Anx.C final report/charge sheet in the abovesaid crime, which has led to the pendency of Calendar Case C.C.No. 2192/2018 on the file of the Addl. Chief Judicial Magistrate's Court (Economic Offences), Ernakulam. The petitioner has already been granted bail in the above case as per Anx.B order dated 19.9.2018 rendered by the Addl. Chief Judicial Magistrate's Court (Economic Offences), Ernakulam. The petitioner seeks quashment of the impugned criminal proceedings on the ground that the entire disputes between the petitioner and the 2[nd] respondent lady defacto complainant have been duly settled and that Crl.M.C.5181/2019 - : 3 :- the 2[nd] respondent has sworn to Anx.D affidavit, wherein she has stated that she is not interested to prosecute the matter any further and that this Court may quash the impugned criminal proceedings on the ground of settlement between the parties. 2. Heard Sri.Babu Tom Cheruvally learned counsel appearing for the petitioner accused, Sri.Santhosh Peter, learned Prosecutor appearing for R-1 State of Kerala and Sri.K.R.Jithin, learned Advocate appearing for the 2[nd] respondent lady defacto complainant. 3. A perusal of the impugned prosecution materials, more particularly Anx.A FIR and Anx.C final report/charge sheet, would show that the 2[nd] respondent lady defacto complainant is the mother -in-law of the petitioner accused herein. The allegation is to the effect that the petitioner was addicted to certain drugs and he was showing some deviant behaviour and he had sent some obscene pictures in the mobile to the 2[nd] respondent's elder daughter, who is the elder sister of the petitioner's wife and that there were disputes between the petitioner and wife's family members. 4. Before getting into the issue of settlement, it will be pertinent to refer to the allegations raised in the impugned Crl.M.C.5181/2019 - : 4 :- prosecution materials to ascertain whether serious offence of attempt to commit to rape as per Sec. 511 of Sec. 376 has been made out in the instant case. A perusal of the materials would make it clear that the allegation is to the effect that, on the day in question, the petitioner had gone to the 2[nd] respondent's house and had grabbed her from behind and had attempted to disrobe her and that it has been done with the intention to commit rape and thereby the petitioner has committed the offence of attempt to commit rape as per Sec. 511 of Sec. 376 of the I.P.C., etc. 5. It is by now well settled by a series of rulings of the Apex Court and various High Courts including this Court, in decisions as in _**Aman Kumar & Anr. v. State of Haryana**_ , (AIR 2004 SC 1497) that in order to establish that an accused is guilty of the serious offence with the intent to commit to rape, the court has to be necessarily satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he also intended to do so at all events, and notwithstanding any reasonable resistance on her part. 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 Crl.M.C.5181/2019 - : 5 :- gratify his passion at all events, and in spite of all resistance, cogent materials must exist. Surrounding circumstances may also many time throw beacon light on that aspect. It will be pertinent to refer to para 11 of above decision of the Apex Court in _**Aman Kumar's case**_ [AIR 2004 SC 1497], which reads as follows: _“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.”_ 6. After hearing both sides and after going through prosecution materials, it is seen that the prosecution has not been successful enough to place any material to satisfy the said standard to establish the vital ingredients of the serious offence to attempt to commit rape. Other than alleging that the accused had caught hold of her body from behind, and then had attempted to remove her dress, which would have been done with the intention to rape her etc., no materials have been made out by the prosecution to show that the accused, when he had caught hold of the lady, had not only desired to gratify his passion upon her person, but also he had intended to do so at all events, notwithstanding any resistance on her part. It is stated Crl.M.C.5181/2019 - : 6 :- by the prosecutrix that immediately after catching hold of her, she had resisted it and the petitioner had to leave the place. That apart, the prosecution materials would also show that there were serious marital discords between the petitioner on the one hand and his wife and family members including her mother (2[nd] respondent) and the petitioner's wife's elder sister. 7. In the light of these aspects, this Court is not in a position to hold that the abovesaid ingredients are seriously disclosed in this case. The upshot of the above discussion is that the prosecution has miserably failed to establish the necessary ingredients of serious offence of attempt to commit to rape as per Sec. 511 of Sec. 376. However, that is not the end of the road of the prosecution story. If it is assumed that the allegations of the prosecution are true, then certainly the prosecution can argue that the offence of violating the modesty of the woman as per Sec. 354 of the I.P.C. may be made out. But such an offence would certainly be amenable for quashment on the ground of settlement between the parties. Now it appears that the petitioner is none other than the son-in-law of the 2[nd] respondent. There were lot of problems in the family and the disputants have resolved their difference of opinion and the 2[nd] respondent has sworn Crl.M.C.5181/2019 - : 7 :- to Anx. D affidavit stating that the allegations were made by her out of misunderstandings and in the light of long standing disputes of the petitioner with her family and that she does not wish to prosecute the matter any further and that this Court may quash the impugned criminal proceedings on the ground of settlement, as otherwise the very marital life of the 2[nd] respondent's daughter with the petitioner accused may be jeopardized. 8. The learned Prosecutor was also requested to get instructions in the matter. Today, when the matter has been taken up for consideration, Sri.Santhosh Peter, learned Prosecutor would submit on the basis of the instructions of the IO concerned that the I.O has conducted an inquiry in the matter and has also recorded the statement of R-2, who has stated that the matter has been settled and that she does not wish to prosecute the matter any further and that this Court may quash the impugned criminal proceedings on the ground of settlement, etc. 9. In a catena of decisions, the Apex Court has held that, in appropriate cases involving even non-compoundable offences, the High Court can quash prosecution by exercise of the powers under Sec.482 of the Cr.P.C., if the parties have really settled the whole Crl.M.C.5181/2019 - : 8 :- dispute or if the continuance of the prosecution will not serve any purpose. Here, this Court finds a real case of settlement between the parties and it is also found that continuance of the prosecution in such a situation will not serve any purpose other than wasting the precious time of the court, when the case ultimately comes before the court. On a perusal of the petition and on a close scrutiny of the investigation materials on record and the affidavit of settlement and taking into account the attendant facts and circumstances of this case, this Court is of the considered opinion that the legal principles laid down by the Apex Court in the cases as in _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303 and _**Narinder Singh and others v. State of Punjab and anr**_ . reported in (2014) 6 SCC 466, more particularly paragraph 29 thereof, could be applied in this case to consider the prayer for quashment. 10. In the light of the abovesaid aspects, this Court is of the view that the impugned criminal proceedings could be quashed on the ground of settlement between the parties. Accordingly, it is ordered in the interest of justice that the impugned Anx.C final report/charge sheet filed in Anx.A FIR in Crime No. 1555/2018 of Crl.M.C.5181/2019 - : 9 :- Ernakulam Town South Police Station, which has led to the pendency of Calendar Case, C.C.No. 2192/2018 on the file of the Addl. Chief Judicial Magistrate's Court (Economic Offences), Ernakulam, and all further proceedings arising therefrom pending against the accused will stand quashed. 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 information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** ## **APPENDIX** |**APPENDIX**|**APPENDIX**| |---|---| |**PETITIONER'S/S EXHIBITS:**|| |**ANNEXURE A**|**THE COPY OF THE FIR IN CRIME NO.1555/18 OF**| ||**ERNAKULAM TOWN SOUTH POLICE STATION.**| |**ANNEXURE B**|**THE CERTIFICATE COPY OF THE BILL ORDER DTD,**| ||**19.9.2018 OF THE COURT OF ACJM(E.O), ERNAKULAM**| |**ANNEXURE C**|**THE CERTIFICATE COPY OF THE CHARGE SHEET IN**| ||**CC.2192/2018 ON THE FILES OF THE COURT OF THE**| ||**ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC**| ||**OFFENCES), ERNAKULAM**| |**ANNEXURE D**|**THE ORIGINAL OF THE AFFIDAVIT SWORN BY THE 2ND**| ||**RESPONDENT/DEFACTO COMPLAINANT ATTESTED BY HER**| ||**COUNSEL**|