Thulaseedharan Nair T.K. v. State of Kerala and Rema

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **TUESDAY, THE 30[TH] DAY OF JULY 2024 / 8TH SRAVANA, 1946** **CRL.MC NO. 7470 OF 2016** **CRIME NO.200/2015 OF VELLATHOOVAL POLICE STATION, IDUKKI AGAINST THE ORDER/JUDGMENT DATED IN CP NO.51 OF 2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS, (MUNSIFF MAGISTRATE COURT) ADIMALI** ## **PETITIONER/ACCUSED:** **THULASEEDHARAN NAIR T.K AGED 52 YEARS, S/O.KUNJIKUTTAN NAIR, THAZHATURUTHEL HOUSE, KURUMBANADAM, MADAPPALLY, CHANGANASSERY, KOTTAYAM DISTRICT.** **BY ADV SRI.M.AJAY** ## **RESPONDENT/STATE/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031.** **2 REMA AGED 45 YEARS, W/O.LATE CHELLAPPAN, ASWATHY BHAVAN, AANACHAL, PALLIVASAL VILLAGE, IDUKKI DISTRICT.** **BY ADVS. SRI.SANGEETHARAJ.N.R, PP SMT.K.S.SANTHI - R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HERAD ON 30.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 ``` CRL.MC NO.7470 OF 2016 ``` **P.V.KUNHIKRISHNAN, J. -----------------------------Crl. M.C. No. 7470 of 2016 ---------------------------------------------Dated this the 30[th] day of July, 2024** ## **O R D E R** The petitioner herein is the accused in CP No. 51/2016 on the file of the Judicial First Class Magistrate Court, Adimaly arising from Crime No. 200/2015 of Vellathooval Police Station. The above case is chargesheeted alleging offence punishable under Sec. 376 IPC. Annexure-A is the final report. 2. The prosecution case is that between 01.07.2012 and 22.01.2013, the petitioner had sexual intercourse with the 2[nd] respondent herein by obtaining her consent by offering her to marry her and later, he withdrawn from his offer and committed offences punishable under Sec. 376 IPC. 3 ``` CRL.MC NO.7470 OF 2016 ``` Annexure-B is the statement given by the 2[nd] respondent. According to the petitioner, even if the entire allegations are accepted, the offence under Sec. 376 IPC is not attracted in this case. It is the case of the petitioner that while he was an employee of Sales Tax Department working at Idukki, he fell in love with the 2[nd] respondent, who was a widow, having a child. He resides in the house of the 2[nd] respondent and had sexual relationship also between them. Twin children were born out of their relationship. In such circumstances, the allegation of rape against the petitioner is absolutely incorrect and the petitioner and the 2[nd] respondent were residing together and there are children also in the wedlock. Hence, it is submitted that the continuation of prosecution against the petitioner is an abuse of process of court. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 4. This Court perused the final report and the statement given by the 2[nd] respondent as evident by 4 ``` CRL.MC NO.7470 OF 2016 ``` ## Annexures B and C. It will be better to extract the relevant ## portion of Annexure-A final report. "പ്രതതികക്ക് 1-ആആം സസാകതിയയെ ബലസാതക്ക് സആംഗആം യചെയക്ക് കസാമസആംതൃപതി വരുത്തണയമന്നുള്ള ഉദദ്ദേശദത്തസാടആം കരുതദലസാടആം കൂടതി പള്ളതിവസാസൽ വതിദല്ലേജതിൽ ആനചസാൽ കരയെതിൽ ടതി ഭസാഗത്തക്ക് ആനചസാൽ ആൽത്തറ ഭസാഗത നതിന്നുആം ആഡതിറക്ക് ഭസാഗദത്തകക്ക് കതിഴക്കുപടതിഞ്ഞറസായെതിരതിക്കുന്ന ആനചസാൽകുഞതിത്തണതി ദറസാഡതിയന്റെ വടക്കുഭസാഗത്തസായെതി കതിഴകക്ക് ദർശനത് ൽ സതിതതി യചെയ്യുന്ന 1-ആആം സസാകതി കുടആംബമസായെതി തസാമസതിചക്ക് വരുന്ന പള്ളതിവസാസൽ ഗസാമപഞസായെത്തക്ക് VIII/34-5 (2011) VIII/101 (2008) എന്നതിങ്ങയന നമ്പർ പതതിചതിട്ടുള്ള വവീടതിയന്റെ വടക്കു പടതിഞ്ഞസാദറ മൂലഭസാഗതള്ള കതിടപ്പുമുറതിയെതിൽ വചക്ക് 1- 7-2012 രസാതതി 8.00 മസാണതിക്കുആം 23.1.13 തവീയെതതിക്കുആം ഇടയ്ക്കുള്ള കസാലയെളവതിൽ വതിവസാഹആം കഴതിച്ചുയകസാള്ളസായമന്നക്ക് പറഞ്ഞക്ക് പ്രദലസാഭതിപതിചക്ക് പ്രതതി 1-ആആം സസാകതിയുമസായെതി പലപ്രസാവശശആം ലലആംഗവീകബന്ധത് ദലർയപടക്ക് 1-ആആം സസാകതി ഗർഭതിണതിയെസാകുന്നതതിനആം ഇരടക്കുടതികയള പ്രസവതിക്കുന്നതതിനആം ഇടയെസാകതിയുആം വതിവസാഹവസാഗസാനത്യചെയതിരതിക്കുന്നു. ” ൽ നതിന്നുആം പതിനസാറതിയുആം പ്രതതി Sec.376 IPC പ്രകസാരആം കുറആം 5. Annexure B statement was given by the 2[nd] respondent on 06.05.2015 at 4.30 pm, before the Sub Inspector of Police, Vellathooval Police Station. According to the 2[nd] respondent, she is a house wife and studied upto Predegree. She belongs to Hindu-Ezhava community. She married one Chellappan on 16.01.1992. and resided together. In the relationship, a girl child born in the year 1994. After ten months of the delivery of the child, the 5 ``` CRL.MC NO.7470 OF 2016 ``` husband-Chellappan was bedridden because of cancer. He died on 14.03.2004. Thereafter, she was doing a temporary job at Pallivasal Panchayat. At that time, she met the petitioner, who was working in Sales Tax Department. It is the case of the 2[nd] respondent that the petitioner informed her that he is residing separately with his wife. Thereafter, it is stated that the 2[nd] respondent and the petitioner used to communicate over phone and it is the case of the 2[nd] respondent that the petitioner assured that once the divorce order is obtained, he will marry the 2[nd] respondent. According to the 2[nd] respondent, on 01.07.2012 at 8 pm, the petitioner reached the house of the 2[nd] respondent. There was sexual relationship between the petitioner and the 2[nd] respondent, promising that he will marry her. The same was continued for several days subsequently is the submission of the 2[nd] respondent. At that time, the girl child was studying in a hostel at Adimali. According to the 2[nd] respondent, because of the relationship with Thulaseedharan Nair, who is the 6 ``` CRL.MC NO.7470 OF 2016 ``` petitioner herein, she became pregnant and she delivered a premature twin girls. After the delivery, the petitioner took her from the hospital and taken her to the house at Anachal. Subsequently, the petitioner left the place. According to the 2[nd] respondent, the petitioner is not ready to contact the 2[nd] respondent. According to the 2[nd] respondent, she gave consent for sexual relationship because the petitioner assured that he will marry her. Thereafter, Annexure-C statement was given by the 2[nd] respondent, which is almost same to Annexure B. 6. From a reading of Annexures-B & C along with Annexure-A final report, I am of the considered opinion that no offence under Sec. 376 IPC is made out in the facts and circumstances of this case. In _**Uday v. State of Karnataka**_ [(2003) 4 SCC 46] _**,**_ the Apex Court observed that in cases in which the sexual intercourse is alleged based on promise to marry and prosecutrix continuing to meet accused and often having sexual intercourse and becoming pregnant, the 7 ``` CRL.MC NO.7470 OF 2016 ``` consent cannot be said to be given under “misconception of fact”. 7. In _**X v. State of Telangana and Another**_ [2018 (16) SCC 511], the Apex Court observed that, if the relationship between the complainant and the accused was intimate for several months, the misconception of fact stating that the sexual relationship was based on a false promise of marriage will not attract any offence. In _**Tilak Raj v. State of Himachal Pradesh**_ [2016 (4)SCC 140] also the Apex Court considered the same in length and observed that, in such situation, no offence is attracted. In _**Deepak Gulati v. State of Haryana**_ [2013 (7) SCC 675], the Apex Court also considered the same principle. A reading of the above said judgments would show that long relationship between the man and woman and in their relationship, if there are children, the allegation that the offence of rape is attracted is rejected by the Apex Court. 8. In the light of the above principle and in the light of 8 ``` CRL.MC NO.7470 OF 2016 ``` the facts and circumstances of the case and also the allegations in the final report and other documents, I am of the considered opinion that the offence under Section 376 of IPC is not made out. Even if the entire allegations are accepted, it is only a sexual intercourse with consent. In such circumstances, the offence under Section 376 IPC is not made out. Therefore, this Criminal Miscellaneous Case is allowed. All further proceedings in C.P. No.51/2016 on the files of Judicial First Class Magistrate Court, Adimaly arising from Crime No.200/2015 of Vellathooval Police Station, Idukki District are quashed. **sd/-** **P.V.KUNHIKRISHNAN JUDGE** SKS/nvj 9 ``` CRL.MC NO.7470 OF 2016 ``` ## **APPENDIX OF CRL.MC 7470/2016** ## **PETITIONER ANNEXURES** ## **ANNEXURE A** **THE CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO 200/2015 OF VELLATHOOVAL POLICE** ## **ANNEXURE B** **THE CERTIFIED COPY OF THE STATEMENT GIVEN BY THE 2ND RESPONDENT ON 6/5/2015 IN CRIME NO 200/2015 OF VELLATHOOVAL POLICE STATION.** ## **ANNEXURE C** **THE CERTIFIED COPY OF THE STATEMENT GIVEN BY THE 2ND RESPONDENT ON 7/5/2015 IN CRIME NO 200/2015 OF VELLATHOOVAL POLICE STATION.** ## **RESPONDENTDS EXHIBITS : NIL** ## **//TRUE COPY//** **PA TO JUDGE**