Rahul Sasi vs State Of Kerala
2021 Latest Caselaw 22552 Ker

                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he withdrawn from the said promise and thus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.

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

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

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], [email protected] Subhash Kumar v.State of

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

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

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

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

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

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."

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.

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

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,

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

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

further proceedings pursuant thereto are hereby

quashed.

The Crl.MC is allowed with the above

observations.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

pkk

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