Kerala High Court
Arjun vs State Of Kerala on 8 April, 2025
2025:KER:30811
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
CRL.MC NO. 9198 OF 2024
CRIME NO.1089/2024 OF PUTHOOR POLICE STATION, Kollam
PETITIONER/ACCUSED:
ARJUN
AGED 23 YEARS
S/O. ANILKUMAR, CHERRIKKAL, EDAKKUNNAM MURI,
MUNDAKKAYAM P.O, KOTTAYAM DISTRICT, PIN - 686513
BY ADVS.
B.RENJITHKUMAR
SUNEESH KUMAR R.
CLARA SHERIN FRANCIS
RESPONDENT/STATE AND DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
PIN - 682031
2 STATION HOUSE OFFICER
PUTHOOR POLICE STATION PUTHOOR, KOLLAM, PIN - 691507
3 XXX
XXX
BY ADVS.
AJITHALAKSHMI SABU
K.P.ABHIRAMI S. LAL
E.C. BINEESH - PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
08.04.2025, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No. 9198 of 2024
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O R D E R
Dated this the 8th day of April, 2025
The petitioner herein is the sole accused in Crime
No.1089/2024 of the Puthoor Police Station, Kollam Rural.
The offences alleged are under Sections 376, 376(2)(n)
and 506 of the Penal Code and also under Section 67(A) of
the Information Technology Act, 2000. The petitioner
seeks quashment of Annexure-1 F.I.R. in the above crime,
as also, all further proceedings thereto, on the premise
that the matter has been amicably settled by and between
the petitioner/accused and the defacto complainant/
victim.
2. The prosecution would allege that the
petitioner/accused, with the necessary animus, got
acquainted with the defacto complainant/victim in the
year 2021 through Instagram and pretended love to her,
besides extending a false promise to marry. Believing the
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petitioner, and acting upon his promise, there was a
physical relationship between the petitioner and the
defacto complainant in October 2021, at a studio at
Puthoor. The petitioner took the nude photos and videos of
the defacto complainant and threatened her that the same
will be aired in the social media. Subsequently, when the
defacto complainant was studying at PES College at Andra
Pradesh, the petitioner had arranged leave for the defacto
complainant and took her to a lodge at Kuppam and
committed rape on her for ten days continuously. On that
occasion also, her nude photos and videos were taken. The
same was repeated in August, 2023 also, at a lodge at
Mavelikkara. It is the further allegation that her photos
were uploaded in the social media, thus committing the
offence enumerated above.
3. Heard the learned counsel for the petitioner, learned
counsel for the 3rd respondent/defacto complainant, and
the learned Public Prosecutor. Perused the records.
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4. It was primarily pointed out by the learned counsel
for the petitioner that the petitioner/accused had married
the defacto complainant/victim on 14.11.2024, after the
registration of the crime and that they are presently
leading a happy married life, as husband and wife. The
marriage certificate issued by the Travancore Devaswom
Board, the marriage invitation card and the marriage photo
are produced. Learned counsel invited the attention of
this Court to Annexure-3 affidavit sworn to by the defacto
complainant/victim, wherein the factum of settlement
between the parties is recorded, besides signifying that
the defacto complainant has no objection in quashing all
further proceedings in the instant crime against the
petitioner. According to the learned counsel, further
prosecution of the matter will not create any result in
favour of the prosecution. Learned counsel would also
submit that the offence canvassed in the instant crime is
not maintainable, inasmuch as the petitioner/accused had
no intention, whatsoever, at the time of extending the
promise, that the same will not be acted upon. Learned
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counsel relied upon the judgment of the Hon'ble Supreme
Court in Shivshankar @ Shiva v. State of Karnataka and
another [(2019) 18 SCC 204], Pramod Suryabhan Pawar v.
The State of Maharashtra and another [(2019) 9 SCC 608]
and Dr.Dhruvaram Mulidhar Sonar v. State of Maharashtra
and others [AIR 2019 SC 327].
5. The factual aspects as regards the marriage between
the petitioner and the defacto complainant etc., are not
denied by the learned Public Prosecutor. Learned Public
Prosecutor would however, caution that serious offences
like the one canvassed in the instant case cannot be
quashed only on the strength of the settlement between the
parties, as held by the three Judges Bench in Gian Singh
v. State of Punjab and another [(2012) 10 SCC 303].
6. Learned counsel for the 3rd respondent/defacto
complainant would fully support the petitioner in the
matter of quashment.
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7. Having heard the learned counsel for the respective
parties, this Court notice that there was an intimate
relationship between the petitioner and the defacto
complainant during the period from 2021 to 2023. The
allegation is that the petitioner/accused had extended a
promise to marry, based upon which there was physical
relationship between the petitioner and the defacto
complainant, for the first time in October 2021. They had
physical relationship at various places, on multiple
occasions. The allegations of rape emerged for the first
time when the petitioner had allegedly withdrawn his
promise to marry. In the said facts, it is difficult to
believe that the consent of the victim was extracted by
giving a false promise to marry. In Shivshankar @ Shiva
(supra), the allegation was of rape on the basis of
pretended love and false promise to marry. The Supreme
Court took stock of the intimate relationship between the
accused and the defacto complainant for about eight years
and held that the sexual intercourse during the course of
that relationship cannot be construed as rape.
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Accordingly, the criminal proceedings were quashed.
8. In Pramod Suryabhan Pawar v. The State of
Maharashtra and another [2019 9 SCC 608], the Hon'ble
Supreme Court distinguished between two different
situations of promise to marry. The first is a case where
the promise is false at the very inception, in the sense
that the intention of the maker of the promise itself was
not to abide by it, but to deceive a woman, so as to
convenience her to engage her in sexual relation. The
second is a case, where a promise to marry was breached
later due to other circumstances. In order to establish a
false promise, the maker of the promise should have no
intention of upholding his word, at the time of giving it.
In such circumstances, the consent of a women, for the
purpose of Section 375, will stand vitiated on the ground
of misconception of fact, in which occasion, such
misconception was the basis for her in choosing to engage
in the objectionable act. The Supreme Court enunciated two
propositions in this regard. The first is that, the
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promise to marry must be a false promise, given in bad
faith, with no intention of adherence to the same, at the
time when it was given. The second one is that the false
promise itself must be of immediate relevance, or bear a
direct nexus, to the women's decision to engage in the
sexual act. The case before the Hon'ble Supreme Court was
also one of intense and intimate relationship between the
accused and the victim for the period from 1998 to 2004;
that they used to travel great distances and had engaged
in sexual intercourse regularly over a period of five
years, that they visited hospital jointly to check whether
the complainant was pregnant; and that, they fall apart
when the accused expressed his reservation in marrying the
complainant. The High Court refused to quash the crime
involving the offence under Section 376. However, the
Supreme Court, in that case, held that the offence under
Section 375 of the Penal Code is not attracted, even if
the facts set out in the complainant's statements are
accepted in toto.
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9. The next decision to be looked into is Dr.Dhruvaram
Mulidhar Sonar v. State of Maharashtra and others [AIR
2019 SC 327]. In that case also, the accused and the
victim were living together sometime at the house of the
victim; and sometime, at the residence of the accused.
They were in a relationship with each other for quite
sometime and enjoyed each other's company. A complaint was
lodged when the victim came to know that the appellant had
married another woman. It was found that she had taken a
conscious decision after active mind application to take
part in the sexual activity; not a case of passive
submission due to any psychological pressure or due to any
misconception of fact. In that case also, the Supreme
Court chose to quash the crime and all further
proceedings.
10. Gauged in the touchstone of the law laid down by the
Hon'ble Supreme Court in the decisions afore-referred, it
cannot be held that the consent of the defacto complainant
for the physical relationship between herself and the
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petitioner is vitiated by a false promise to marry.
11. More importantly, the petitioner and defacto
complainant had thereafter got married, as evidenced from
the marriage certificate. They are presently living
together as husband and wife, happily. Affidavit sworn to
by the defacto complainant would vouch that the defacto
complainant has no grievance, whatsoever, against the
petitioner now and that the issues have been settled
amicably.
12. In the light of the above referred facts, this Court
is of the opinion that the necessary parameters, as culled
out in Narinder Singh and Others v. State of Punjab
[(2014) 6 SCC 466], Madan Mohan Abbot v. State of Punjab
[(2008) 4 SCC 582] and Gian Singh v. State of Punjab and
another [(2012) 10 SCC 303], are fully satisfied. This
Court is convinced that further proceedings against the
petitioner will be a futile exercise, inasmuch as the
disputes have already been settled. There is little
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possibility of any conviction in the crime. Dehors the
settlement arrived at by and between the parties, if they
are compelled to face the criminal proceedings, the same,
in the estimation of this Court, will amount to abuse of
process of Court. The quashment sought for would secure
the ends of justice.
In the circumstances, this Crl.M.C. succeeds and F.I.R.
in Crime No.1089/2024 of Puthoor Police Station, Kollam
Rural, and all further proceedings pursuant thereto, will
stand quashed.
Sd/-
C. JAYACHANDRAN
JUDGE
TR
