Kerala High Court
Santhosh N.S vs State Of Kerala on 19 February, 2025
2025:KER:13696
Crl.M.C.No.2612/2019
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
WEDNESDAY, THE 19TH DAY OF FEBRUARY 2025 / 30TH MAGHA, 1946
CRL.MC NO. 2612 OF 2019
AGAINST THE FINAL REPORT IN C.P.NO.01/2019 ON THE FILES OF THE
JUDICIAL FIRST CLASS MAGISTRATES COURT, THRISSUR
CRIME NO.1112/2017 OF TOWN EAST POLICE STATION, THRISSUR
PETITIONER/1ST ACCUSED:
SANTHOSH N.S.,
AGED 41 YEARS
S/O. SURENDRAN, NAMBIYATH HOUSE,
KANDASHANGADAVU P.O,KARAMUKKU,
THRISSUR 680 613
BY ADVS. SRI.PAUL JACOB (P)
SRI.LEO LUKOSE
SRI.ENOCH DAVID SIMON JOEL
SRI.RONY JOSE
SRI.GEORGE A.CHERIAN
SRI.JOSEPH FREEMAN
SMT.SUZANNE KURIAN
SHRI.AMAL AMIR ALI
SRI.S.SREEDEV
RESPONDENTS/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
(THROUGH THE STATION HOUSE OFFICER,
THRISSUR EAST POLICE STATION)
2 ASHITHA NADIRA,
AGED 47 YEARS
CHIMMINIYIL HOUSE, KAIRALI NAGAR,
STREET NO. 3, CHEMBUKAVU, THRISSUR 680 020
BY ADV SRI.C.A.CHACKO FOR R2
SRI. SANGEETHARAJ N.R., PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
14.02.2025, THE COURT ON 19.02.2025 PASSED THE FOLLOWING:
2025:KER:13696
Crl.M.C.No.2612/2019
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ORDER
Petitioner is the accused in C.P.No.1/2019 on the files of Judicial First Class Magistrate Court-I, Thrissur. The offence alleged against him are under Sections 376, 376(2)(n), 323, 324 and 420 of the Indian Penal Code, 1860 (in short, 'IPC'). The crime in this regard was registered by the Thrissur East Police on 10.06.2017 on the basis of the first information statement given by the survivor, a lady aged 39 years. 2. The prosecution case is that the petitioner committed rape of the survivor on 29.09.2016 and 01.01.2017 in the hotel rooms at Thrissur and Nedumbassery after fraudulently and dishonestly inducing her to believe that he would marry her. It is the further allegation of the survivor that the petitioner had collected an amount of Rs.2,40,000/- from her on various occasions after making her believe that she would be married by him. Thereafter, on 06.05.2017, the petitioner allegedly inflicted voluntary hurt upon her by hitting with the hands and stabbing with a knife, at her residence at Thrissur. Thus, the petitioner is alleged to have committed the aforesaid offences.
3. After the completion of the investigation, the Inspector of Police, Thrissur East laid the final report before the Jurisdictional 2025:KER:13696 Crl.M.C.No.2612/2019 -:3:- Magistrate, which was taken into files and numbered as C.P.No.1/2019. In the present petition, the petitioner would contend that none of the offences alleged against him are attracted even if the allegations levelled in the final report are accepted in totality. The petitioner would further allege that the de facto complainant is a nymphomaniac who wanted the company of young men to satisfy her sexual needs, and that she often resorted to prefer false complaints against those persons who did not accede to her lascivious demands. According to the petitioner, he retracted from his friendship with the survivor when he realised that the real intention of the survivor was to satiate her carnal desires making use of him. The survivor is thus alleged to have preferred this false complaint, infuriated by the refusal of the petitioner to budge to her demand for leading an amorous life with her. It is the further contention of the petitioner that even going by the admitted case of the second respondent (de facto complainant), it is clear that the sexual intercourse between the petitioner and her was consensual.
4. Heard the learned counsel for the petitioner, the learned Public Prosecutor representing the State of Kerala and the learned counsel for the second respondent.
2025:KER:13696 Crl.M.C.No.2612/2019 -:4:-
5. The copy of the F.I.R registered in this case is produced as Annexure-A8 by the petitioner. The first information statement which resulted in the registration of the crime is contained in the pages Annexure-A8/6 to A8/11. As per the allegations in the above first information statement, the petitioner and the second respondent met for the first time in the month of September, 2016 at Thrissur while both of them were watching the procession known as 'Pulikali'. At that time, the petitioner is said to have saved the second respondent from the harassment of some hooligans. Thereafter, the petitioner allegedly contacted the second respondent through phone and requested her to be his life partner, leading to the friendship between them. The first incident of rape is said to have happened in a room in hotel Elite International at Thrissur on 29.09.2016 where the second respondent voluntarily went along with the petitioner. However, apart from a casual statement that the petitioner sexually harassed her in that hotel room, there is no indication in the first information statement to discern that the petitioner raped her at that time. Thereafter, the petitioner and the second respondent are stated to have lived like husband and wife. The second incident of rape is said to have happened during that time on 2025:KER:13696 Crl.M.C.No.2612/2019 -:5:- 31.12.2016 when both of them went to a hotel room near Nedumbassery Airport for new year celebrations. As per the allegations in the first information statement, the petitioner indulged in forceful sexual intercourse with her that night and physically tortured her when she resisted. The relationship between the petitioner and the second respondent like husband and wife is said to have continued till 06.05.2017, the day when the petitioner allegedly inflicted voluntary hurt upon her, at her residence, by hitting with hands and stabbing with a knife. After the above incident, the petitioner allegedly abandoned the second respondent, and did not care to repay the amount of Rs.2,40,000/- received from her.
6. The learned counsel for the petitioner argued that it is writ large from the first information statement itself that the second respondent was fully aware of the fact that the petitioner is a married man having children, and that she indulged in sexual relationship with him fully knowing that it was not possible for him to marry her. It is also pointed out by the learned counsel for the petitioner that there are indications in the above first information statement that the second respondent was also married to another person at the time when the 2025:KER:13696 Crl.M.C.No.2612/2019 -:6:- alleged relationship with the petitioner continued. Thus, it is contended that the second respondent cannot be heard to say that her consent for the sexual relationship with the petitioner was given under a misconception of facts.
7. Per contra, the learned Public Prosecutor argued that the first information statement as well as the further statements given by the de facto complainant to the Investigating Officer would reveal that the specific incidents of sexual intercourse which took place on 29.09.2016 at a hotel room at Thrissur and on the wee hours of 01.01.2017 in a hotel room at Nedumbassery were without the consent of the de facto complainant, and that the petitioner even physically tortured the de facto complainant when she resisted the sexual acts of the petitioner. It is further pointed out by the learned Public Prosecutor that even if the de facto complainant and the petitioner are said to have involved in a relationship akin to the relationship of spouses, still the forceful intercourse committed by the petitioner on two occasions, without the consent of the de facto complainant, would amount to rape. Thus, it is argued by the learned Public Prosecutor that it would be premature to terminate the prosecution at this stage for the reason that the petitioner 2025:KER:13696 Crl.M.C.No.2612/2019 -:7:- and the de facto complainant had maintained the life like that of husband and wife for a short period.
8. At the outset, it has to be stated that the contention of the de facto complainant about her consent given on misconception of facts, believing the marriage offer of the petitioner, is prima facie unsustainable since it is apparent from the first information statement of the de facto complainant that she was aware of the fact that the petitioner was a married man having children.
9. As already stated above, the first information statement of the de facto complainant does not reveal that the petitioner had forceful sexual intercourse with her without her consent at the hotel room of Thrissur Elite International Hotel on 29.09.2016. On the other hand, there is only a vague statement that the petitioner sexually harassed her at that time without her consent. As regards the incident which is said to have happened during the new year eve of 2017 at the Hotel room in Nedumbassery, the de facto complainant has alleged that the petitioner resorted to forceful sexual intercourse with her against her consent and physically tortured her when she resisted. Thus the allegations in the above regard are capable of showing that the petitioner had raped her 2025:KER:13696 Crl.M.C.No.2612/2019 -:8:- on that occasion. However, both the above incidents mentioned in the first information statement of the de facto complainant cannot be taken in isolation with her subsequent unequivocal affirmation towards the concluding portion of her statement that from the month of October, 2016 onwards, she and the petitioner had been living like husband and wife at her residence and that she indulged in sexual intercourse with the petitioner and gave money to him believing his offer to marry her. It is further stated by her that the above relationship continued till 06.05.2017 when the petitioner physically assaulted her. The relevant portion in the first information statement in vernacular language is extracted hereunder for the sake of easy reference:
"2016 ഒക്ടോബർ മാസം മുതൽ ഞാനും സന്തോഷും ഒരുമിച്ച് എൻ്റെ വീട്ടിൽ ഭാര്യഭർത്താക്കന്മാരെപ്പോലെ ജീവിക്കുക യായിരുന്നു. 06/05/17 തീയതി എന്നെ ഉപദ്രവിച്ചശേഷം സന്തോഷ് എന്നെ വിളിക്കുകയോ എന്നെ കാണാൻ വരികയോ ഉണ്ടായില്ല. എന്നെ വിവഹാം കഴിക്കാമെന്ന് പറഞ്ഞ് വിശ്വസിപ്പിച്ചാണ് സന്തോഷമായി ഞാൻ ശാരീരികബന്ധത്തിൽ ഏർപ്പെടുകയും പണം കൊടുക്കുകയും ചെയ്തിട്ടുള്ളത്. "
10. Thus, it appears from the above statement given by the second respondent that her relationship with the petitioner from October, 2016 till 06.05.2017 was like that of the wife of the petitioner and that the physical contact between them was admittedly consensual. The incident which is said to have happened in a hotel room at 2025:KER:13696 Crl.M.C.No.2612/2019 -:9:- Nedumbassery, where both of them came for celebrating New Year in the night of 31.12.2016, cannot be taken in isolation of the aforesaid admission of the de facto complainant about the nature of the relationship which she maintained with the petitioner from October, 2016 till 06.05.2017. It is not possible to think that when the de facto complainant decided to spend the night of 31.12.2016 in a hotel room at Nedumbassery with the petitioner, she was not under the expectation that the petitioner would resort to sexual intercourse with her. Therefore, the allegation of forceful sexual intercourse perpetrated by the petitioner upon the de facto complainant in the night of 31.12.2016 in a hotel room at Nedumbassery, is prima facie unbelievable. This is especially so, in view of the fact that even according to the de facto complainant, her relationship with the petitioner like that of spouses continued for several months even after the said incident. Had she been really aggrieved by the alleged forceful and violent sexual intercourse perpetrated by the petitioner in the night of 31.12.2016, she cannot be expected to have continued her relationship like the wife of the petitioner even after the said incident. When viewed in the above perspective, it is not possible to accept the argument of the learned Public Prosecutor that the offence 2025:KER:13696 Crl.M.C.No.2612/2019 -:10:- of rape is attracted in respect of the specific incident stated by the de facto complainant as happened in the New Year eve of 2017 in a hotel room at Nedumabassery. As already stated above, the First Information Statement or the subsequent statements given by the second respondent to the Investigating Officer, are not capable of showing that the alleged sexual harassment committed by the petitioner upon the de facto complainant in a hotel room at Thrissur on 29.09.2016, would amount to rape. That apart, the subsequent conduct of the second respondent atoning the above act of the petitioner, and maintaining the relationship, akin to the relationship of spouses, with the petitioner, would in effect obliterate the culpability of the said act. When viewed in the above perspective, it is not possible to say that the two incidents pointed out in the final report as happened on 29.09.2016 and 01.01.2017 would constitute the offence of rape.
11. In this context, it is worth to note that it is not for the first time that the de facto complainant has come up with the allegation of rape on promise of marriage against a person. Annexure-A6 FIR produced by the petitioner would go to show that the de facto complainant had approached the Thrissur Medical College Police Station 2025:KER:13696 Crl.M.C.No.2612/2019 -:11:- with the same allegation against a person by name Biju on 25.04.2016. There also, the accusation was that the above person indulged in sexual relationship with her under the promise of marriage and received an amount of Rs.73,000/- from her. Annexure-A3 referral letter issued by a Counsellor of 'One Stop Crisis Cell' , General Hospital, Thrissur, would go to show that in connection with the aforesaid relationship, the de facto complainant was referred for psychiatric treatment for her abnormal behaviour of extra-marital relationships. It is after the above episode that the events relating to the registration of this crime took place. Thus, it seems that the contentions of the de facto complainant in this case that despite her reluctance, the petitioner insisted and compelled her to have the relationship with him, cannot be accepted on face value. At any rate, it is not possible to conclude that the allegations raised by the de facto complainant in the present case would constitute the offence of rape alleged against the petitioner. The other offences under Sections 323 & 420 IPC are having no independent existence when the substantial offence of rape alleged against the petitioner is found to be prima facie untenable. Therefore, the continuance of the prosecution against the petitioner would amount to an abuse of process of court. Needless to 2025:KER:13696 Crl.M.C.No.2612/2019 -:12:- say that the proceedings against the petitioner are liable to be terminated for the above reason.
In the result, the petition stands allowed. The final report filed in Crime No.1112/2017 of Thrissur Town East Police Station, and the proceedings initiated by the Judicial First Class Magistrate Court-I, Thrissur, as C.P.No.1/2019 against the petitioner herein on the basis of the above final report, are hereby quashed.
(Sd/-) G. GIRISH, JUDGE jsr/DST 2025:KER:13696 Crl.M.C.No.2612/2019 -:13:- APPENDIX PETITIONER ANNEXURES ANNEXURE A1 A TRUE COPY OF THE COMPLAINT DATED 2-6-2017 FILED BEFORE THE SHO ANTHIKAD POLICE STATION ALONG WITH THE ACKNOWLEDGMENT ANNEXURE 2 A TRUE COPY OF THE UNDERTAKING GIVEN BY THE PETITIONER BEFORE THE SUB INSPECTOR OF POLICE, THRISSUR EAST POLICE STATION.
ANNEXURE 2 A READABLE COPY OF ANN. A2
ANNEXURE A3 A TRUE COPY OF THE REFERRAL LETTER DATED 2-3-2016
ISSUED BY THE COUNSELLOR, BHOOMIKA, DISTRICT
HOSPITAL, THRISSUR ALONG WITH THE LEGIBLE COPY. ANNEXURE A4 TRUE COPY OF THE OP TICKET OF THE 2ND RESPONDENT ISSUED BY THE PSYCHIATRIST, GENERAL HOSPITAL, THRISSUR.
ANNEXURE A5 A TRUE COPY OF THE COMPLAINT IN CMP 2507/2016 ON THE FILES OF THE CHIEF JUDICIAL MAGISTRATES COURT, THRISSUR.
ANNEXURE A6 A TRUE COPY OF THE F.I.R IN CRIME NO. 880/2016 OF MEDICAL COLLEGE POLICE STATION, THRISSUR ALONG WITH READABLE COPY OF F.I STATEMENT.
ANNEXURE A7 A TRUE COPY OF THE FINAL REPORT IN C.C 2895 OF 2016 IN CRIME NO. 880/2016 OF MEDICAL COLLEGE POLICE STATION THRISSUR ALONG WITH THE 161 STATEMENTS OF ALLEGED VICTIM AND DR. SUVIN ANAND IN C.C 2895 OF 2016 ANNEXURE A8 CERTIFIED COPY OF THE FIR IN CRIME NO. 1112/2017 OF THRISSUR EAST POLICE STATION.
ANNEXURE A9 CERTIFIED COPY OF THE FINAL REPORT DATED 10-06-2017 IN C.P NO. 01/2019 ON THE FILES JUDICIAL FIRST CLASS MAGISTRATE COURT, THRISSUR. ANNEXURE A10 A CERTIFIED COPY OF THE DEPOSITION OF PW1 IN C. C. NO. 2895/2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, WADAKKANCERY DATED 12.07.2023.
2025:KER:13696 Crl.M.C.No.2612/2019 -:14:- ANNEXURE A11 TRUE COPY OF THE READABLE COPY OF THE DEPOSITION OF PW1 IN C. C. NO. 2895/2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, WADAKKANCERY DATED 12.07.2023 .
ANNEXURE A12 . A CERTIFIED COPY OF THE JUDGMENT IN IN C. C. NO. 2895/2016 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, WADAKKANCERY DATED 13.07.2023.