Kerala High Court

Rahulraj vs State Of Kerala Represented By The ... on 3 July, 2025

                                                             2025:KER:48518

CRL.MC NO. 9244 OF 2024                 1


                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

                      THE HONOURABLE MR. JUSTICE G.GIRISH

                         RD
          THURSDAY, THE 3   DAY OF JULY 2025 / 12TH ASHADHA, 1947


                            CRL.MC NO. 9244 OF 2024

          CRIME NO.304/2022 OF Kollam West Police Station, Kollam

          AGAINST THE ORDER/JUDGMENT DATED IN SC NO.1868 OF 2022 OF FAST

                           TRACK SPECIAL COURT, KOLLAM

PETITIONER/ACCUSED:

           RAHULRAJ
           AGED 27 YEARS
           S/O RAJAN USHA BHAVANAM CHERIYELA CHERRY, ALUMMOODU PO,
           THRIKKOVILVATTOM VILLAGE KOLLAM (DIST)-, PIN - 691577


           BY ADV SRI.M.RAJESH

RESPONDENT/COMPLAINANTS:

    1      STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH
           COURT OF KERALA
           ERNAKULAM, PIN - 682031

    2      THE INSPECTOR OF POLICE
           KOLLAM WEST POLICE STATION CIVIL STATION PO, KOLLAM
           (DIST)-, PIN - 691013

    3      XXX
           XXX


OTHER PRESENT:

           SMT PUSHPALATHA M.K., SR PP

      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.07.2025,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
                                                            2025:KER:48518

CRL.MC NO. 9244 OF 2024               2


                                    ORDER

The petitioner is the accused in S.C.No.1868/2022 on the files of

the Fast Track Special Court, Kollam. The offence alleged against him is

under Section 376(2)(n) of the Indian Penal Code, 1860.

2. The prosecution case is that the petitioner indulged in sexual

relationship with the defacto complainant by giving the false promise of

marriage to her. It is alleged that in the above relationship, the defacto

complainant got impregnated. The case has been registered by the

Kollam West Police, on the basis of the First Information Statement given

by the defacto complainant. After completion of the investigation, the

Inspector of Police, Kollam West Police Station, filed the Final Report

before the court.

3. In the present petition, the petitioner would contend that the

offence of rape is not attracted in the facts and circumstances of this

case, since the allegations, if at all accepted as such, would reveal that

the relationship between the petitioner and the defacto complainant was

consensual. It is further pointed out that the defacto complainant is a

married lady, having a child also, and that she cannot be expected to

have extended her consent due to misconception of facts about the offer

of the petitioner to marry her.

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4. Heard the learned counsel for the petitioner and the learned

Public Prosecutor representing the State of Kerala.

5. The learned counsel for the petitioner has produced an

Annexure P6 marriage certificate, which would go to show that the

defacto complainant was married to another person as early as on

23.05.2019. Furthermore, the learned counsel for the petitioner pointed

out that Annexure 5 copy of the petition filed by the husband of the

defacto complainant before the Family Court, Kollam, would reveal that

the marriage relationship of the defacto complainant with that person was

subsisting at the time when she is said to have indulged in sexual

relationship with the petitioner. Thus, it is argued that the contention of

the defacto complainant about extending consent for sexual relationship,

believing the false promise of marriage allegedly given by the petitioner,

is prima facie unsustainable.

6. The prosecution records would reveal that the petitioner and

the defacto complainant maintained their relationship for a long period,

and that the sexual relationship between them was the offshoot of their

mutual intimacy. In such cases, it is well settled that the mere promise of

marriage made by the petitioner itself, cannot be termed as a reason to

accept the contention of the defacto complainant about the misconception 2025:KER:48518

of facts. When the defacto complainant is fully aware that she may not be

able to have a lawful marriage with the petitioner, before dissolving her

existing marriage with another person, she is not expected to extend her

consent, believing the promise of marriage by the offender.

7. As far as the present case is concerned, it is not possible to

say that the petitioner managed to obtain the consent of the defacto

complainant by resorting to any acts of deceit.

8. The consent given by the prosecutrix to have 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. A promise to marry without anything more will not give rise

to misconception of fact within the meaning of Section 90 IPC. However,

the position will be different if it is shown that the accused, with a view to

elicit the assent of the victim, gave the false promise of marriage, without

having the intention or inclination to marry her, and made the victim

submit herself to him, and later on, deceived her by backtracking from

the promise of marriage.

9. In Uday v. State of Karnataka [(2003) 4 SCC 46]

the Apex Court, while dealing with this issue, held as follows:

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"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 straitjacket 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."

10. In Deepak Gulati v. State of Haryana [(2013) 7 SCC 675] the

Hon'ble Supreme Court, on the aspect of consent in rape cases, held as follows:

"Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape 2025:KER:48518

and consensual sex and in a case like this, the court must very carefully examine whether the accused 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 latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. 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 misrepresentation made to her by the 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 so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."

11. Again in Dhruvaram Murlidhar Sonar (Dr.) v. State

of Maharashtra and Others [(2019) 18 SCC 191], the Hon'ble

Supreme Court, while interpreting Section 90 IPC and clause 'secondly'

in Section 375 IPC observed as follows:

"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 latter falls within the ambit of cheating or deception.

2025:KER:48518

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 the 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 Section 376 IPC.

12. Very recently, while dealing with a case where a married

woman having three children alleged rape under false promise of

marriage upon a person, the Apex Court held in Naim Ahamed v.

State (NCT of Delhi) [(2023) 15 SCC 385] as follows:

"22. In the instant case, the prosecutrix who herself was a married woman having three children, could not be said to have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have sexual relationship with the appellant. Undisputedly, she continued to have such relationship with him at least for about five years till she gave complaint in the year 2015. Even if the allegations made by her in her deposition before the court, are taken on their face value, 2025:KER:48518

then also to construe such allegations as "rape" by the appellant, would be stretching the case too far. The prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Even otherwise, if her entire conduct during the course of such relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him. She had gone to stay with him during the subsistence of her marriage with her husband, to live a better life with the accused. Till the time she was impregnated by the accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having children also, still she continued to live with the accused at another premises without any grievance. She even obtained divorce from her husband by mutual consent in 2014, leaving her three children with her husband. It was only in the year 2015 when some disputes must have taken place between them, that she filed the present complaint. The accused in his further statement recorded under Section 313 CrPC had stated that she had filed the complaint as he refused to fulfil her demand to pay her huge amount. Thus, having regard to the facts and circumstances of the case, it could not be said 2025:KER:48518

by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375 IPC."

13. Having regard to the settled position of law laid down by the

Apex Court in the aforesaid decisions, I am of the view that the

prosecution records in the instant case, even if accepted as such, are not

sufficient to bring home the offence of rape, under Section 376(2)(n) IPC.

Needless to say that the prayer in this petition to quash the proceedings,

is well founded.

In the result, the petition stands allowed. The proceedings against

the petitioner/accused in S.C.No.1868/2022 on the files of the Fast Track

Special Court, Kollam, are hereby quashed.

sd/

G.GIRISH JUDGE jm/ 2025:KER:48518

PETITIONER ANNEXURES