Rishad H. v. Sub Inspector of Police, Hemambika Nagar Police Station, Palakkad; State of Kerala; 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.4393 OF 2019(H)** **AGAINST THE ORDER/JUDGMENT IN CP 20/2019 OF JUDICIAL MAGISTRATE OF FIRST CLASS -III,PALAKKAD CRIME NO.919/2018 OF Hemambika Nagar Police Station , Palakkad** ## **PETITIONER/S:** **RISHAD H, AGED 22 YEARS S/O. HUSSAIN, THEKKUMPURAM HOUSE, PUDUPPARIYARAM, KAVILPADU P.O, PALAKKAD-678009. BY ADV. SRI.V.A.VINOD** ## **RESPONDENT/S:** |**1**|**THE SUB INSPECTOR OF POLICE,**| |---|---| ||**HEMAMBIKA NAGAR POLICE STATION, PALAKKAD-678009.**| |**2**|**STATE OF KERALA,**| ||**REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF**| ||**KERALA, ERNAKULAM.682031.**| |**3**|**VICTIM**| ## **R3 BY ADV. SRI.SHAKTHI PRAKASH** ## **OTHER PRESENT:** ## **SRI.T.R.RENJITH,PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.7.2019 THE COURT ON 19.08.2019, PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ## ================== Crl.M.C.No. 4393 of 2019 ================== Dated this the 19[th] day of August, 2019 ## **O R D E R** The petitioner herein is the sole accused in the impugned Anx. I Crime No. 919/2018 of Palakkad Hemambika Nagar Police Station, registered for offences punishable under Secs. 376(1) and 376(2)(n) of the I.P.C. on the basis of the FI statement given by the 3[rd] respondent lady defacto complainant on 3.11.2018 at about 10.30 p.m. in respect of the alleged incidents, which had taken place for the period from 1.7.2017 to 10.9.2018, etc. The Police, after investigation has filed the impugned Anx. II final report/charge sheet in the said Crime No.919/2018 of Palakkad Hemambika Nagar Police Station, for offences punishable under Sec. 376(1) and Sec.376 (2)(n) of the I.P.C., which has led to the pendency of the committal proceedings C.P.No.20/2019 on the file of the Judicial First Class Magistrate's Court-III, Palakkad. 2. The main contention urged by the petitioner is that even if the main allegations raised in the impugned prosecution materials are assumed to be true, then events narrated therein would have happened only on the basis of consensual sexual relationship between - : 3 :- the parties and therefore, the vital ingredients of the offence of forcible sexual intercourse of rape as per Sec. 376 of the I.P.C. are not made out. 3. It appears that the 3[rd] respondent lady defacto complainant has settled the disputes with the petitioner accused and the petitioner had earlier approached this Court by filing Crl.M.C.No. 1076/2019 before this Court and had produced an affidavit sworn to by the 3[rd] respondent herein regarding the factum of settlement of the disputes between the parties and that she has no objection for quashment of the impugned criminal proceedings. Further this Court as per Anx.III order dated 28.3.2019 has disposed of the said Crl.M.C. filed by the petitioner by permitting him to withdraw the said Crl.M.C. with liberty to file a fresh petition to seek quashment of the impugned criminal proceedings on the ground that the ingredients for offence of rape are not made out as the incidents would have happened only on the basis of the consensual sexual relationship between the parties, etc. 4. Heard Sri.V.A.Vinod, learned counsel appearing for the petitioner, Sri.T.R.Renjith, learned Prosecutor appearing for R-1 & R-2 State authorities and Sri.Shakthi Prakash, learned counsel appearing for the 3[rd] respondent (lady defacto complainant). - : 4 :- 5. 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 seemed 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. 6. 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 - : 5 :- 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 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 - : 6 :- 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. 7. Now it will be pertinent to advert to some of the crucial factual aspects involved in this case and then to examine the tenability of the plea as to whether the incidents alleged could have happened only on the basis of the consensual sexual relationship between the parties. The sheet anchor of the case of the prosecution is on the basis of the allegations made by the 3[rd] respondent lady victim in her FI statement attached to Anx. I FIR, which has been given in pages 12 to 17 of the paper book of the above Crl.M.C. That the 3[rd] respondent victim's date of birth is 27.11.1998 and it is seen that she has completed the majority age of 18 years on 27.11.2016. The case set up in the said FI statement given on 3.11.2018 is that the victim was then aged 20 years, and that she is a final year student of B.Sc. Physics course in the Government Victoria College, Palakkad and she became acquainted and developed an intense love affair with the petitioner accused then aged about 23 years, who was an engineering student. That the 3[rd] respondent lady defacto complainant came to know the the petitioner accused for the first - : 7 :- time in December, 2016. That the petitioner accused made her to believe he has already registered their marriage online and that he had taken her to a temple and had taken out the gold chain worn by her and then again put it on her and made her to believe that he has married her. That the 3[rd] respondent had taken the petitioner to her house and introduced to her parents as her friend. That the petitioner's parents also visited her house. That thereafter, for about an year, she and the petitioner used to go to Palakkad fort ground for jogging in Palakkad Synthetic stadium on every day at 5 a.m. in the morning. That she used to go in her two wheeler to Olavakkad and leave it there and then got into the car and then travelled in the car along with the petitioner to the stadium and that they used to stop the car in isolated places and used to frequently have sexual relationship inside the car on most of the days and that the petitioner used condoms and while so, he had even done oral sex on her. That later he had taken her to his house when his parents were not there and in November, 2017, they had sexual intercourse in his bed room. That at least on two times in a month, the petitioner used to take her to his house, where they had sexual relationship and that the 3[rd] respondent consented for the said sexual relationship only as she was made to believe by the petitioner that she is his wife and later when the - : 8 :- petitioner's parents came to know about the love affair, they questioned the petitioner and this was not to the liking of the petitioner. Thereafter the 3[rd] respondent came to know that the petitioner is having another love affair with another lady, named Karishma and that the petitioner and the other lady were found in many other places. That on 3.11.2018, while she was travelling with the petitioner in his car, Karishma also later got into the car and the 3[rd] respondent and the said Karishma started fighting with each other and seeing it, the people of the locality had also gathered and taken all three of them to the Police Station. That all through out she was under the belief that she is his wife. 8. From a close reading and analysis of the impugned Anx. I FIS it can be seen that the victim had completed the age of 18 years on 27.11.2016 and she has met the petitioner for the first time in December, 2016. She was taken to the temple on 15.6.2017 and they started having sexual relationship since July 2017. 9. The main case set up by the lady defacto complainant is that the petitioner had taken her to a temple and had taken her own gold chain worn in her neck and then placed it on her neck and she was made to believe that the petitioner had married her. Further that the petitioner had also made her to believe that their marriage has - : 9 :- been registered online. 10. The case of the 3[rd] respondent is that she was made to believe that the petitioner had registered their marriage online. Further that on 15.6.2019, he had taken her to a temple and then there, he had taken out the gold chain worn by in her neck and had again put it on her neck and made her to believe that he has thus married her. Not even a scrap of paper has been produced by the prosecution to even remotely suggest that the petitioner's marriage has been solemnized in the manner known to law. Even before the 3[rd] respondent had met the petitioner, she had already completed the majority age of 18 years and she was a final year B.Sc. Student of a reputed Government college. No reasonable and prudent woman of her age and educational background would ever believe that the mere act of a man taking the woman to a temple and putting her own gold chain to her neck in the temple premises will amount to solemnization of marriage. When the marriage itself is not solemnized, no woman will believe the version of a man that he has registered their marriage online. A reading of the FIS would clearly indicate that both of them used to go together to the synthetic ground early in the morning and used to stop the car in isolated places and used to have sexual relationship inside the car almost every day and - : 10 :- the accused was using condoms on those days. Both of them have also gone to his house and they had sexual relationship there also for quite a few occasions. It is now by well established by the abovesaid rulings that where a man and a woman consistently have sexual relationship for quite time, then it is rather difficult to take the view that the act of sexual intercourse would amount to rape or that consent was obtained on the basis of misconception of fact. In this case, the 3[rd] respondent has no case that the petitioner had promised her to marry and then had breached his promise. Her case is that by the act of taking her to the temple and putting her own gold chain on her neck would amount to the accused marrying her, which is too far fetched and cannot be accepted by any sensible person. In the facts of this case, it can be seen that both the parties were having an intense love and lust affair and even going by her own admissions, the 3[rd] respondent was having sexual relationship with the accused in the car almost on all days and in the bed room of his house. In these circumstances, it is only to be held that both the parties were knowing the consequences of their actions and decided to have sexual relationship based on their own moral and ethical choices. The learned counsel for the petitioner would point out that as stated in the FIS, the petitioner, the 3[rd] respondent and the other lady named - : 11 :- Karishma, were caught by the Police as the persons in the locality had objected and it is only to wriggle out of the said incidents that the 3[rd] respondent has raised complaint to show as if the sexual relationship occurred only on account of her belief that the petitioner has married her, etc. Be that as it may, from the reading of the abovesaid FIS, the irresistible conclusion that to be made is that if the allegations of sexual intercourse narrated therein are true, then it would have happened only on the basis of the consent of both the parties and the vital requirements of the offence under Sec.376 are not made out. Further continuance of the impugned proceedings therefore would be nothing but an abuse of the process of court. 11. In the light of the abovesaid aspects, it is ordered in the interest of justice that the impugned Anx.II final report/charge sheet filed in Crime No. 919/2018 of Hemambika Nagar Police Station, which has led to the institution of C.P.No.20/2019 on the file of the Judicial First Class Magistrate's Court-III, Palakkad, and all further proceedings arising therefrom pending against the accused will stand quashed. 12. 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 - : 12 :- 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. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** - : 13 :- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.919/2018 OF HEMAMBIKA NAGAR POLICE STATION, PALAKKAD ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT IN C.P.20/2019 ON THE FILES OF HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-III. ANNEXURE III TRUE COPY OF THE JUDGMENT IN CRL.M.C. NO.1076/2019 DATED 28.03.2019.**