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2024 Supreme(Ker) 678
IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
Prabin Raj, S/o.Rajan –Appellant
Versus
The Sub Inspector Of Police – Respondent
Crl.MC No. 1954 of 2018
Decided on : 25-06-2024
Advocate Appeared:
For the Appellant : ADV SRI.RAJESH CHAKYAT
For the Respondent: ADV SRI.N.L.BITTO, SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE
IMPORTANT POINT
Sexual intercourse under the promise of marriage can vitiate consent, establishing grounds for a charge of rape under Section 376 IPC.
Headnote:
CRIMINAL LAW - RAPE - IPC SECTION 376 - The court discussed Section 376 of the Indian Penal Code, which pertains to the punishment for rape. The court interpreted the provision in the context of the allegations made by the defacto complainant, emphasizing that sexual intercourse under the promise of marriage can vitiate consent. The court found that the prima facie evidence presented warranted a trial, as the allegations suggested repeated sexual intercourse under false pretenses, leading to the complainant's pregnancy. This interpretation influenced the court's decision to dismiss the petitioner's request to quash the proceedings and allowed the case to proceed to trial.
Fact of the Case:
The petitioner was accused of rape under Section 376 IPC, alleging that he had sexual intercourse with the defacto complainant under the promise of marriage, which led to her pregnancy. The petitioner contended that he was not in India during the time of the alleged incident, supported by his passport, and sought to quash the final report of the police.
Finding of the Court:
The court found that the allegations made by the defacto complainant were sufficient to establish a prima facie case of rape, as the promise of marriage was used to vitiate consent. The court noted that the petitioner’s claim of being out of the country during the alleged incident was a matter for the trial court to determine.
Issues: Whether the allegations of rape under Section 376 IPC were substantiated enough to warrant a trial, and whether the petitioner's claim of being out of the country during the alleged incident could quash the proceedings.
Ratio Decidendi: The court held that sexual intercourse under the promise of marriage can vitiate consent, and the prima facie evidence presented by the prosecution was sufficient to proceed with the trial. The court emphasized that the determination of facts, such as the petitioner's presence in the country, should be resolved during the trial.
Final Decision: The court dismissed the Criminal Miscellaneous Case, allowing the case to proceed to trial and directed the petitioner to surrender before the Judicial First Class Magistrate Court.
ORDER :
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, with the following prayers:
(i) quash Annexure 3 final report in Crime No.1813/2014 of Pudukad Police Station, which is now pending as L.P.R.No.50/2016 on the files of Judicial First Class Magistrate Court, Irinjalakuda.
(ii) direct the Judicial First Class Magistrate Court, Irinjalakuda to release the petitioner on bail on his surrender in L.P.R.No.50/2016.
Or
(iii) issue any appropriate order or directions as this Hon’ble Court deem fit on considering the facts and circumstances of the case.
2. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor in detail. Perused the relevant documents including Annexure-3 final report, which is under challenge.
3. This crime was registered alleging commission of offence punishable under Section 376 of the Indian Penal Code, by the accused, who is the petitioner herein.
4. The prosecution allegation herein is that the accused herein made relationship with the defacto complainant and offered to marry her. Thereafter, he reached the residence of the defacto complainant on a day during March, 2012, when no-one other than the petitioner was there. After talking for a while he demanded for sexual favour and the defacto complainant resisted the same. Then he repeated the offer of marriage and forcefully had sexual intercourse with her. Then the defacto complainant cried aloud and the accused assured her to marry. Thereafter, the accused subjected the defacto complainant to sexual intercourse, repeatedly assuring marriage. Later she became pregnant and the matter was informed to the accused. But he left abroad for the purpose of job. The matter of pregnancy was informed to the mother of the accused also and the mother also assured marriage with the accused, on return of the accused from abroad. According to the defacto complainant, later the defacto complainant delivered a child and the father of the child is the accused. This is the premise on which the prosecution alleges commission of offence punishable under Section 376 of the Indian Penal Code.
5. While canvassing quashment of this case arising out of crime registered in the year 2014, now pending as L.P.No.50/2016 on the files of the Judicial First Class Magistrate Court, Irinjalakuda, the learned counsel for the petitioner would submit that no materials are available to see, prima facie, commission of the offence of rape, alleged to be committed by the accused. It is also submitted that during the period of commission of rape during March, 2012, the accused was not in India and he came to India only on 10.04.2012. Annexure-4, copy of his passport, has been placed to substantiate the said contentions.
6. Whereas the learned Public Prosecutor would submit that the defacto complainant was subjected to forceful intercourse on the promise of marriage and she became pregnant and a child also was born in the said relationship. The contention raised by the accused that he was not in station, is a matter to be proved before the trial court. Apart from that the learned Public Prosecutor would submit that the case of the defacto complainant started from March, 2012 and thereafter on various occasions she was subjected to rape. Therefore, this case would go for trial.
7. I have perused the F.I statement and relevant documents form part of the case diary.
8. The prosecution case is that the accused herein made relationship with the defacto complainant and offered to marry her. Thereafter, he reached the residence of the defacto complainant on a day during March, 2012, when no-one other than the petitioner was there. After talking for a while he demanded for sexual favour and the defacto complainant resisted the same. Then he repeated the offer of marriage and forcefully had sexual intercourse with her. Then the defacto complainant cried aloud
