IMPORTANT POINTS:
A reading of Sec.375 as per the amended process would make it clear that forcible acts of oral sex that may be done by a male accused on a female victim would come now within the ambit of Sec.375 of the IPC with effect from 03-02-2013. Therefore, where the alleged acts of oral sex are said to have been committed by a male accused on a female victim if allegedly done on or after 03-02-2013, then it would come within the ambit of Sec.375 of the IPC and not within Sec.377 of the IPC. Exception No.2 of Sec.375 stipulates that sexual intercourse or sexual acts by a man with is own wife, the wife not being under 15 years of age, is not rape.

ORDER :

1. The prayer in the above Crl.M.C filed under Sec.482 of the Cr. PC is as follows:-

“.......to quash Anx.A2 FIR and all further proceedings in crime No.442/2018 dated 30-03-2018 of Vellarada Police Station, Thiruvananthapuram, on the basis of amicable settlement of the dispute emanating from matrimonial discord.”

2. Heard Sri.Ayyappan Sankar, the learned counsel appearing for the petitioners/accused and Sri.Santhosh Peter, learned Public Prosecutor appearing for respondent Nos.1 & 2. Though respondent No.3 (lady defacto complainant) has been duly served by special messenger, there is no appearance for the said party.

3. The petitioners herein are brothers and 1st the petitioner/A1 is the husband of the 3rd respondent (lady defacto complainant). The petitioners have been arrayed as accused in the impugned Anx.A2 crime No.442/2018 of Vellarada Police Station, Thiruvananthapuram, for offences punishable under Secs.323, 354, 377 and 34 of the Indian Penal Code, on the basis of first information statement given by the 3rd respondent (lady defacto complainant) on 30-03-2018 at about 9.00 a.m, in respect of the alleged incidents happened for the period from December 2015 onwards.

4. The allegation made by the 3rd respondent (lady defacto complainant) in Anx.A2 FIS is to the effect that her marriage with the 1st petitioner herein was solemnized on 13-01-2014 and thereafter, the 1st petitioner has forcibly made her to undergo oral sex and such other activities and that thereby he has committed the offence of forcible carnal intercourse against the order of nature as per Sec.377 of the IPC. Further that he has assaulted her, etc., and that the 2nd petitioner (A-2), who is the brother of A-1, used to occasionally touch her breast while taking his child and he has committed the offence as per Sec.354 of the IPC (violating the modesty of the woman). At the outset, it is to be noted that the marriage between the parties has been solemnized as early as on 13-01-2014. It appears that a series of litigative proceedings have been initiated by the 3rd respondent by filing applications as OP No.696/2016 before the Family Court, Thiruvananthapuram, M.C.No.100/2016 before the Judicial First Class Magistrate Court-III, Neyyanttinkara under Sec.12 of the Domestic Violence Act, etc,. In all those litigative proceedings initiated by the 3rd respondent (lady defacto complainant), she has not made any whisper of allegations, even remotely, regarding the alleged oral sex, which was compelled to be undergone by her at the instance of the 1st petitioner herein, who is her husband. The incidents are said to have happened sometime in December 2015. Whereas the instant Anx.A2 FIS has been made as late as on 30-03-2018, which is after the expiry of the two and half long years. No credible explanation whatsoever has been offered by the prosecution for explaining the long delay in the initiation of the instant case.

5. It is by now too well settled by a series of the rulings of the Apex Court in various decisions as in Thulia Kali v. State of Tamil Nadu (AIR 1973 SC 501 ), State of Andhra Pradesh v. M.Madhusudhan Rao [(2008) 15 SCC 582] etc., that delay in lodging the FIR, more often than not results in embellishment and exaggeration, which is a creation of an afterthought and a delayed report, not only gets bereft of the advantage of spontaneity, but the danger of the introduction of a coloured version, an exaggerated account of incident or a concocted story as a result of deliberations and consultations, also creeps in, thus casting a very serious doubt on its veracity. Therefore, it has been held that it is highly essential that the delay in lodging the FIR should be duly and satisfactorily explained by the prosecution. Resultantly, when the substratum of the prosecution case itself is found to be unreliable, prosecution case has to be rejected in its entirety, etc. In the instant case there is, not only delay of more than two and half long years, but also