Kerala High Court
Rahul Sasi vs State Of Kerala on 19 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
FRIDAY, THE 19TH DAY OF NOVEMBER 2021 / 28TH KARTHIKA, 1943
CRL.MC NO. 8887 OF 2016
CRIME NO.1398/2015 OF Peroorkada Police Station,
Thiruvananthapuram
CP NO.13/2016 PENDING BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE
COURT-XI, THIRUVANANTHAPURAM
PETITIONER/ACCUSED:
RAHUL SASI
AGED 29 YEARS, S/O SASIDHARAN,AISWARYA, NEAR SASTHA
TEMPLE, VAMANAPURAM.
BY ADVS.
SRI.A.RAJASIMHAN
SRI.K.NIRMALAN
RESPONDENTS/STATE AND DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM.
2 XXX XXX XXX
FOR R1 SRI. ARAVIND V. MATHEW, PP
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
10.11.2021, THE COURT ON 19.11.2021 PASSED THE FOLLOWING:
CRL.MC No.8887 of 2016 2
O R D E R
The petitioner is the sole accused in C.P.No.13/2016 pending before the Judicial First Class Magistrate Court-XI, Thiruvananthapuram which arises from Crime No.1398/2015 of Peroorkada Police Station. The offence alleged against the petitioner is under Section 376 of the Indian Penal Code (IPC).
2. The prosecution case is as follows:
The defacto complainant/2nd respondent is a married lady having a daughter aged 11 years and she is a journalist (Her marriage was legally terminated in the year, 2009 and a child born in the said relationship is residing along with her Ex-husband). The allegation is that the petitioner induced the 2nd respondent with a promise to marry her, to have sexual intercourse with her and later he withdrawn from the said promise and thus committed the offence of rape.CRL.MC No.8887 of 2016 3
3. The present petition is filed by the petitioner seeking to quash Annexure-A1 final report submitted by the police after conducting the investigation. According to the petitioner, the contents of Annexure-A1 does not make out an offence of rape and, therefore, this is a fit case where the powers of this Court under Section 482 of the Code of Criminal Procedure (Cr.PC) is to be invoked.
4. Heard Sri.A. Rajasimhan, the learned counsel for the petitioner and Sri. Aravind V. Mathew, the learned Public Prosecutor. Even though a notice was served upon the 2nd respondent, there is no appearance for her.
5. The crucial contention taken by the petitioner is that even going by the allegations contained in Annexure-A1, the sexual intercourse between the petitioner and the 2nd respondent was on the basis of mutual consent and hence the same would not attract the offence of rape. On the other hand, the prosecution case is that the consent of CRL.MC No.8887 of 2016 4 the 2nd respondent was obtained on a false promise to marry her and thereby it is a consent obtained under a misconception.
6. The offence of rape is defined under Section 375 of the IPC. In the said provision, a man is said to commit "rape" if he commits any of the acts mentioned in sub-sections (a) to (d) therein, against the will and consent of a victim. Section 90 of the IPC explains "consent", and it reads as follows:
"90. Consent known to be given under fear or misconception:
A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person: If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child: Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
Thus as per Section 375 r/w. Section 90 of the IPC, a sexual intercourse performed on the basis of a consent which was obtained under a CRL.MC No.8887 of 2016 5 misconception of fact amounts to rape. Thus, the sum and substance of prosecution case is that the sexual intercourse in this case was performed on the basis of a promise of marriage which was later broken by the petitioner and hence it cannot be treated as a sexual intercourse with the consent of the 2nd respondent.
7. In such circumstances, the only point to be considered is whether the consent of the 2 nd respondent was obtained on a misconception of fact or as to whether a sexual intercourse performed on a promise of marriage can be treated as an instance of obtaining consent on misconception of fact.
8. The learned counsel for the petitioner relies on judgments rendered by the Hon'ble Supreme Court in Dhruvaram Muralidhar Sonar (Dr) v. State of Maharashtra & Others [2019(1)KHC 403], Denu P. Thampi v. Ms.X and Another [2019(3)KHC 199], Sonu@ Subhash Kumar v.State of CRL.MC No.8887 of 2016 6 Uttar Pradesh and Another [2021(2) KHC 314 (SC)], Denu.P.Thampi v. Ms.X and another [2019 (3) KHC 199] and Santhosh v. State of Kerala [2021 (1) KLT 552]. By placing reliance upon the said judgments, it is contended that no case of rape is made out as the sexual intercourse was performed in this case on mutual consent.
9. Before proceeding to the discussion of legal principles applicable to the case, the factual position is to be examined. The specific allegation as contained in the statement of the 2nd respondent is as follows:
The 2nd respondent who was a journalist working in a reputed news channel in Thiruvananthapuram, met the petitioner who was working in a neighbouring office. The relationship between them escalated into an affair as the petitioner conveyed to her that, he is intending to marry her. Even though the 2nd respondent informed him that she is a divorcee with a child, the petitioner was prepared to CRL.MC No.8887 of 2016 7 accept the same. Accordingly, on 17.2.2014, both of them together visited Kollur Mookambika temple and the petitioner made a pledge in the temple to marry the 2nd respondent. Thereafter, on 18.2.2014, they resided together in a lodge near the temple and during night they had sexual intercourse. It is stated by her that the petitioner committed the sexual act by force.
However, it is further stated by her that after returning from Kollur Mookambika temple, the 2nd respondent had taken a rented house in Thiruvananthapuram and both of them have resided in the said house for two months as husband and wife. Later, they resided in Bhageeratha East Gate apartment for four months and thereafter at Koottamvilayil until May,2015. Thereafter, the petitioner deserted the 2nd respondent and thus the complaint was submitted by the 2nd respondent with the above allegations. The medical examination report of the 2nd respondent, which forms part of Annexure-A1 final report CRL.MC No.8887 of 2016 8 contains history of the incident which is in the manner as follows:
"According to the survivor, she was cheated by a person named Rahul Shashi, 31 years with whom she was staying together on and off till May 2015 from April 2014"
10. From the factual aspects of the case, it is evident that even though there was an allegation of forceful sexual act from the part of the petitioner at the first instance, it is discernible that after the said incident both of them resided together for about eight months voluntarily and had regular sexual intercourse without exercise of any force by the petitioner. In this factual backdrop, the legal principles have to be examined.
11. In Pramod Suryabhan Pawar v. State of Maharashtra and Another [2019(9)SCC 608], it was observed by the Hon'ble Supreme Court as follows:
"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with CRL.MC No.8887 of 2016 9 respect to S.375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
12. The aforesaid observations were made by the Hon'ble Supreme Court while dealing with a case of similar factual background and the Hon'ble Supreme Court was considering an appeal filed before a High Court dismissing an application submitted by the accused to quash the proceedings by invoking Section 482 Cr.PC. After elaborate discussions, the Hon'ble Supreme Court was pleased to allow the said appeal and quashed the F.I.R impugned therein. In Uday v. State of Karnataka [(2003)4 SCC 46], the Hon'ble Supreme Court was dealing with a case of rape alleged to have been committed on a false CRL.MC No.8887 of 2016 10 promise to marry. In paragraph 21 thereof it was observed as follows:
"21. 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."
13. In Dhruvaram Muralidhar Sonar's case (supra), the Hon'ble Supreme Court considered the challenge against an FIR registered for the CRL.MC No.8887 of 2016 11 offence under Section 376 IPC wherein the allegation was that the consent of the victim was obtained on the basis of a promise to marry. In paragraph 20, it was observed as follows:
"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 S.376 of the IPC."CRL.MC No.8887 of 2016 12
14. The principles that can be deduced from the observations made by the Hon'ble Supreme Court in the above judgments is that, in order to treat a consent as one obtained on a misconception of fact, it should be shown that the accused was not having the intention of marriage, right from the inception and the promise of marriage was made falsely with the intention to induce the victim to the sexual intercourse. So the crucial question to be examined in the factual background of the case is as to whether the petitioner in this case had such a clandestine or malafide motive to persuade the victim under a false promise. While considering this issue, the statements of two independent witnesses cited by the prosecution ie. CW2 and CW3 are relevant. CW2 is a common friend of the petitioner and the 2nd respondent. From her statement, it is evident that she was aware of the relationship between the parties. CRL.MC No.8887 of 2016 13 She has stated that when the petitioner started keeping distance from the 2nd respondent, the 2nd respondent asked CW2 to interfere in the matter and to talk with the petitioner for pursuing him to enter into the marriage. According to CW2, when she talked with the petitioner, he stated that, even though he is interested in marrying the 2nd respondent, his parents are not agreeing for the marriage as the 2nd respondent is a divorcee and a mother. The aforesaid statement of CW2 also reveals that the petitioner had disclosed his intention to marry the 2nd respondent much earlier. Similarly, CW3 is another friend who was also aware of the relationship between the parties. Similar inquiry was made by CW3 with the petitioner to which the petitioner had stated that even though he was interested in marrying the 2nd respondent, his parents are not agreeing. From the statements of CWs.2 and 3 coupled with the CRL.MC No.8887 of 2016 14 contents of statement of the 2nd respondent, it is discernible that the petitioner was actually intending to marry the 2nd respondent, but could not continue the relationship due to the opposition from his family members. In this factual background, the observations made by the Honourable Supreme Court in Dhruvaram Muralidhar Sonar's(supra), which is extracted above, is having relevance. Thus, it cannot be concluded that the petitioner was making a false promise right from the inception. In other words, even going by the statements contained in Annexure-A1 final report, it is evident that the petitioner started the relationship with an intention to perform the marriage with the 2nd respondent. Therefore, at the most, the act of withdrawing himself from the said proposal of marriage would amount to a breach of promise, which situation is distinct from a consent obtained under a misconception of fact. In such circumstances, CRL.MC No.8887 of 2016 15 the principles laid down by the Hon'ble Supreme Court in the judgments aforesaid are clearly applicable, to the facts of this case.
15. It is also relevant to note in this regard that, the 2nd respondent is an educated lady. She is a divorcee with a child and is also an independent professional, capable of looking after herself and to take decisions on her own by understanding the consequences of such actions. The relationship which the 2nd respondent maintained with the petitioner for a period extending to eight months and regular sexual intercourse admittedly performed during such time would clearly indicate that the consent was not obtained under mere misconception. She had the diligence and capacity to understand the consequences of her acts and the relationship she maintained with the petitioner. It is evident that, she voluntarily agreed to enter into the CRL.MC No.8887 of 2016 16 relationship and the sexual intercourse performed during the course of the same was on the basis of consensus between the parties. Under no circumstances, the said consent can be treated as one obtained under misconception of fact as contemplated under Section 375 r/w. Section 90 of the IPC.
16. In such circumstances, I have no hesitation to arrive at the conclusion that, even if the allegations contained in Annexure-A1 final report are accepted in its entirety, for its face value, that would not constitute an offence under Section 376 of IPC and the continuation of proceedings is a clear abuse of process of law. Accordingly, Annexure-A1 final report in Crime No.1398/2015 of Peroorkada Police Station which is now pending before the Judicial First Class Magistrate Court-XI, Thiruvananthapuram as C.P.No.13/2016 and all CRL.MC No.8887 of 2016 17 further proceedings pursuant thereto are hereby quashed.
The Crl.MC is allowed with the above observations.
Sd/-
ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.8887 of 2016 18 APPENDIX OF CRL.MC 8887/2016 PETITIONER'S ANNEXURE ANNEXURE A1 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1398/2015 OF PEROORKADA POLICE STATION.
// TRUE COPY// SD/-
P.S. TO JUDGE