VICTIM v. STATE OF KERALA & ARUN ARAVIND (Crl.MC No. 2010 of 2018; Crl.MC No. 2973 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** ## **Crl.MC.No. 2010 of 2018** **AGAINST THE ORDER/JUDGMENT IN CRMC 101/2018 of D.C. & SESSIONS COURT,KOLLAM DATED 09-02-2018** **CRIME NO. 25/2018 OF Sooranadu Police Station , Kollam** ## **PETITIONER/DEFACTO COMPLAINANT:** **VICTIM** **….** **BY ADV. SRI.SHARAN SHAHIER** ## **RESPONDENT/DEFACTO COMPLAINANT:** **1 STATE OF KERALA REP. BY THE SUB INSPECTOR OF POLICE, SOORNAD POLICE STATION, KOLLAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 ARUN ARAVIND, AGED 27 YEARS, S/O.ARAVINDKSHAN PILLAI,KOCHUKOYIPURATHU KIZHAKKATHIL, ERAVICHIRA EAST, SOORNAD SOUTH, KOLLAM DISTRICT-690522.** **BY ADVS. SRI.R.ANIL SRI.B.RAMAN PILLAI (SR.) SRI.E.VIJIN KARTHIK SRI.M.SUNILKUMAR SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.THOMAS SABU VADAKEKUT** ## **OTHER PRESENT:** **PP. SRI. RAMESH CHAND** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.9.2018, ALONG WITH Crl.MC.2973/2018, THE COURT ON 16/11/2018 PASSED THE FOLLOWING:** Crl.M.C.No.2010 & 2973/2018 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** **Crl.MC.No. 2973 of 2018** **AGAINST THE ORDER/JUDGMENT IN CRMC 101/2018 of D.C. & SESSIONS COURT,KOLLAM DATED 09-02-2018** **AGAINST THE ORDER/JUDGMENT IN CMP 21/2018 of J.M.F.C., SASTHAMCOTTA** **CRIME NO. 25/2018 OF Sooranadu Police Station , Kollam** ## **PETITIONER/ACCUSED:** **ARUN ARAVIND, AGED 27 YEARS, S/O.ARAVINDAKASHAN PILLAI, KOCHUKOYIPURATHU KIZHAKKATHIL, ERAVICHIRA EAST, SOORANADU SOUTH, KOLLAM DISTRICT, PIN-690 522.** **BY ADVS. SRI.B.RAMAN PILLAI (SR.) SRI.E.VIJIN KARTHIK SRI.M.SUNILKUMAR SRI.R.ANIL SRI.SUJESH MENON V.B. SRI.T.ANIL KUMAR SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.THOMAS SABU VADAKEKUT** ## **RESPONDENT/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 VICTIM.** **...** ## **BY ADV. SRI.SHARAN SHAHIER** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.9.2018, ALONG WITH Crl.MC.2010/2018, THE COURT ON 16/11/2018 PASSED THE FOLLOWING:** Crl.M.C.No.2010 & 2973/2018 3 ## **O R D E R** ## **[ Crl.MC 2010/2018 &Crl.MC.2973/2018 ]** Crl.M.C. 2970/2018 is filed by the accused, who is facing prosecution in Crime No.25/2018 of Sooranadu Police station for offences punishable under section 376 (2) (n) IPC. 2. The second respondent is the defacto complainant. She laid CMP No.2/2018 before JFMC, Sasthamkotta, alleging that, the petitioner herein promised to marry her and, on the basis of the above promise, sexually abused her. Later, he retracted from the promise. According to her, accused got acquaintanted with the defacto complainant in 2014. Both fell in love and the accused herein promised to marry her. Some time in July 2016, she was invited to Delhi where the accused was working as pilot in airlines. After dinner she was given fruit juice and after consuming it, she fell asleep. When she woke up, it was found that the accused had raped her. The petitioner assured that, it was done by him to ensure that she will not leave the accused. 3. Thereafter, the accused started delaying the marriage by stating one reason or other. They stayed thereafter in a hotel at Crl.M.C.No.2010 & 2973/2018 4 Bombay in September 2016 and also on 24[th] and 25th October 2016 . On the basis of re-assurance given by the accused, they had physical relationship. On 17/12/2016, she was invited to the house of the accused at Kollam. She went there and had physical relationship there also. In March, June and October, 2017, they stayed on different dates in the apartment of the accused at Ernakulam and had physical relationship. The relationship continued even thereafter and had stayed together at a hotel in Thiruvananthapurm on 6/4/2017. Both agreed to get married on 8/12/2017 under the Special Marriage Act. Notice was given under the Special Marriage Act. According to the defacto complainant, she waited at Sub Registrar's Office at Chala, Thiruvananthapuram. However, the accused did not turn up. She went to the house of the accused on 11/12/2017. His parents abused her and sent her back asserting that they were not agreeable for the marriage. Complaint was laid by her to the various police officers. According to her, since no action was taken, private complaint was laid on 16/12/2017. Crime was registered as Crime No.25/2018 by Sooranadu Police station on 5/1/2018. 4. Alleging that investigation was not properly and effectively conducted, Crl.M.C.2010/2010 was filed by the defacto complainant. It was contended that, accused had filed an application for pre arrest bail as BA No.101/2018 before the Sessions Court, Kollam. That court granted anticipatory bail to the accused without imposing any Crl.M.C.No.2010 & 2973/2018 5 stringent condition. It was contended that, custodial interrogation of the accused was essential and she sought to cancel the anticipatory bail. 5. In the meanwhile, the accused filed Crl.M.C.No. 2973/2018 to quash the criminal proceedings against him on the premise that offence alleged against him will not survive and that, even assuming that all the allegations are true, it only indicated consensual physical relationship. 6. Pending the proceeding, Crl.M.A.No.6399/2018 was filed by the defacto complainant in Cri.M.C.No.2973/2018. It was stated that, complaint was laid by her under considerable stress and misunderstanding. She stated that, in the meanwhile, with the intervention of elders, all the outstanding disputes between the parties were settled and she does not propose to prosecute the criminal proceedings. She asserted that, she intended to lead her own life. Affidavit dated 11/6/2018 affirmed in support of the above settlement was produced along with Crl.M.A. In the affidavit, it was stated that both the parties were in love and had decided to marry each other. With the passage of time, relationship deteriorated due to various factors due to incompatibility and insensitivity to each other's feelings. Hence, she requested that criminal proceedings may be quashed. 7. Since the allegations were serious and since this court was Crl.M.C.No.2010 & 2973/2018 6 not inclined to quash the criminal proceedings on consent,petitioner was directed to argue the matter on merits. 8. Learned senior counsel for the accused contended that, ingredients of section 376 IPC were not brought out. It was contended that, crux of the allegation was that, there was a false promise to marry. 9. Evidently, parties are well educated. Both of them are now working as pilot in Airlines Companies. Both knew consequences of entering into physical relationship. Materials on record clearly show that, they were in love and the relationship spanned over a long period of four years. It is also on record that both had initially decided to proceed with the marriage. Both had stayed at different hotels in various places and had shared bed room. 10. Evidently, to establish that the accused had given a false promise to marry and the consent was obtained on the basis of a mistake of facts or misconception of facts to attract Section 90 of the Indian Penal Code, it is essential that there should be an allegation that promise was false from the very inception. It is also to be established that, the consent was obtained on the basis of the false promise to marry. In the complaint, there is absolutely no allegation that, promise, that was made, was false from its very inception. Even though there is an allegation that petitioner's first physical relationship in July 2013 was without her consent, when she slept Crl.M.C.No.2010 & 2973/2018 7 after drinking the fruit juice, it seems that even thereafter, they stayed at various hotels and had physical relationship. Each time, the accused allegedly reiterated the promise. It cannot be stated that an adult woman who is well educated and well aware of the consequences can be carried away several times by repeated assurances. 11. It is also brought on record that, once the defacto complainant had gone to the house of the accused wherein, the mother of the accused ridiculed her and asserted that they will not permit the accused to marry her. In spite of this, they continued their physical relationship. It is seen that ultimately both sides fixed the date of marriage under the Special Marriage Act and notice was given. It indicates that both were proceeding as if they agreed to marry. What transpired thereafter is not clear. 12. The facts narrated above and sought to be established through the statement of the victim does not indicate that there was a promise which was false from its very inception to attract section 90 IPC. In **Uday v State of Karnataka(2003) 4 SCC 46)** , it has been reiterated that, misconception of facts under section 90 IPC arises only if there is a false promise and sufficient materials to establish that consent was obtained on the basis of a false promise to marry were produced. Such an ingredient evidently is not available in the case at hand. 13. Having considered the above facts, I am satisfied that Crl.M.C.No.2010 & 2973/2018 8 successful prosecution of the accused is not possible in the case at hand. Hence, I am inclined to invoke the jurisdiction of this court under section 482 Cr.P.C.to quash the criminal proceedings against the petitioner herein. In the result, Crl.M.C.No.2973/2018 is allowed and all further proceedings in Crime No.25/2018 of Sooranadu Police Station stands quashed. Crl.M.C.No.2010/2018 is closed in the above circumstances. **Sd/-** ## **SUNIL THOMAS** dpk **JUDGE** Crl.M.C.No.2010 & 2973/2018 9 ## **APPENDIX OF Crl.MC 2010/2018** ## **PETITIONER'S/S EXHIBITS:** - **ANNEXURE 1** - **A TRUE COPY OF THE ENTRY DATED 24-102016 MADE BY THE PETITIONER AND THE 2ND RESPONDENT DURING THEIR STAY IN ARTUS HOTEL, MUMBAI.** - **ANNEXURE 2 A TRUE COPY OF THE ENTRY DATED 29-092016 MADE BY THE PETITIONER AND THE 2ND RESPONDENT DURING THEIR STAY IN HOTEL STAR SUITE, MUMBAI.** - **ANNEXURE 3 A TRUE COPY OF THE ENTRY DATED 14-032017 MADE BY THE PETITIONER AND THE 2ND RESPONDENT DURING THEIR STAY IN IMPERIAL HOTEL, MUMBAI.** - **ANNEXURE 4 A TRUE COPY OF THE NOTICE NO.P7204148 OF INTENDED MARRIAGE.** - **ANNEXURE 5 COPY OF FIR IN CRIME NO.101/2018 OF SOORANAD POLICE STATION, KOLLAM DISTRICT.** **ANNEXURE 6** **CERTIFIED COPY OF THE ORDER IN ANTICIPATORY BAIL APPLICATION 101/2018 DATED 09-02-2018 BEFORE THE COURT OF SESSIONS JUDGE, KOLLAM.** Crl.M.C.No.2010 & 2973/2018 10 ## **APPENDIX OF Crl.MC 2973/2018** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE-A.**|**THE TRUE COPIES OF WHATS APP MESSAGES RECEIVED**| |---|---| ||**BY THE PETITIONER**| |**ANNEXURE-B.**|**TRUE COPY OF THE PETITION DATED 16/12/2017.**| |**ANNEXURE-C.**|**TRUE COPY OF THE E-MAIL DATED 2/1/2018.**| |**ANNEXURE-D.**|**THE CERTIFIED COPY OF THE FIR IN CRIME**| ||**NO.25/2018 OF SOORANADU POLICE STATION**| |**ANNEXURE-E.**|**THE TRUE COPY OF THE ORDER OF THE SESSIONS**| ||**COURT, KOLLAM IN CRL.MC NO.101/2018.**| |**ANNEXURE-F.**|**THE CERTIFIED COPY OF THE COMPLAINT PREFERRED**| ||**BY THE 2ND RESPONDENT FILED BEFORE THE JFCM-**| ||**SASTHAMCOTTA AS CMP NO.21/2018.**| |**ANNEXURE-G.**|**THE TRUE COPY OF THE REPROT DATED 6/1/2018 OF**| ||**SUB INSPECTOR OF POLICE, SOORANADU POLICE**| ||**STATION.**| |**ANNEXURE-H.**|**TRUE COPY OF THE LAWYER NOTICE DATED 19/3/2018**| |**ANNEXURE-I.**|**TRUE COPY OF THE REPLY NOTICE**| |**ANNEXURE-J.**|**TRUE CERTIFIED COPY OF THE CRL.MC NO.2010/2018**| ||**FILED BY THE 2ND RESPONDENT BEFORE THIS**| ||**HONOURABLE COURT.**| |ANNEXURE R2(A):|THE ORIGINAL OF THE SETTLEMENT AFFIDAVIT DATD 11/6/2018|