Consent obtained under a false promise of marriage, without intention to fulfill it, vitiates consent under Section 90 IPC.

ORDER :

(A. Badharudeen, J.) :

Crl.M.C.No.9538/2023, is one filed under Section 482 of the Code of Criminal Procedure ('Cr.P.C’ for short hereafter), by the petitioner/sole accused, to quash S.C.No.956/2018 on the files of the Special Court for trial of offence against women and children (Protection of Children from Sexual Offences Act (PoCSO Act), Ernakulam, arising out of Crime No.453/2017 of North Paravur Police Station, Ernakulam. Crl.M.C.No.9546/2024 also is at the instance of the same petitioner, where quashment of S.C.No.955/2018, arising out of Crime No.453/2017 of North Paravur Police Station, Ernakulam, sought for. Prayer in Crl.M.C.No.9561/2023 also is for quashment of C.P.No.37/2023 pending before the Judicial First Class Magistrate Court-I, North Paravur, arising out of the above same crime.

2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the prosecution records.

3. The prosecution case in S.C.No.955/2018 is that the accused, who was the driver of a Tempo Van used by the defacto complainant along with family for a tour programme to Kodaikanal, during the month of April, 2005, made intimacy with her through mobile phone and other means and thereafter with intention to commit rape on her at about 3 p.m on 17.07.2005 taken her to the tempo van bearing Registration No.KL 7A 6037 and subjected her to rape on the back seat of the tempo van. In the meanwhile, he also photographed the visuals and thereby her modesty was outraged. Accordingly, the prosecution alleged commission of offences punishable under Sections 376 and 342 of the Indian Penal Code ('IPC’ for short hereafter) as well as 66E of the I.T Act.

4. Coming to S.C.No.956/2018, the same defacto complainant would allege commission of rape by the same accused on 16.11.2011, who took the defacto complainant in a car bearing Registration No.KL32C 1986 to room No.109 of IV Cottage Lodge, Munnar. Repeated rape thereafter also alleged. The same also was recorded by the accused.

5. In C.P.No.37/2023 also the defacto complainant and the accused are one and the same and the allegation is that on 17.10.2015, the accused herein brought her in a car bearing Registration No.KL32C 1986 and subjected her to sexual intercourse by threat at a home stay lodge near Munnar. On 30.09.2016 also the accused took her to a home stay lodge near Marayoor Gramapanchayat and repeated forceful sexual intercourse.

6. The learned counsel for the petitioner argued at length to convince this Court that on no stretch of imagination it could be held that the accused herein committed rape on the defacto complainant in the facts of the given case. It is submitted that initially there was consensual relationship as on 17.07.2005. No complaint lodged till 2011 with regard to this occurrence. After a long gap of 6 years, again in the year 2011 the defacto complainant travelled in a car along with the accused and had sexual intercourse. Similarly, in 2015 also there was sexual intercourse in between the defacto complainant and the accused. According to the learned counsel for the petitioner as the materials would prima facie show that the relationship between the defacto complainant and the petitioner/accused in the above cases was purely consensual, the same would require quashment and the quashment in such cases also is legally permissible in view of the decision in Gian Singh v. State of Punjab and Another reported in [(2012) 10 SCC 303 : 2012 KHC 4530 : 2012 (4) KLT 108 : 2012 (9) SCALE 257 : 2012 CriLJ 4934 ]. Similarly, he has placed another decision Narinder Singh and Ors. v. State of Punjab & anr. [2014 KHC 4195 : 2014 (3) KHC SN 44 : (2014) 6 SCC 466 : 2014 (2) KLD 167 : 2014 (4) SCALE 195 : ILR 2014 (2) Ker. 85 : 2014 (2) KLJ 252 : 2014 CriLJ 2436], to buttress the said point.

7. Whereas the learned Public Prosecutor would submit that whether the relationship is consensual or not is a matter of evidence. Therefore, quashment of the proceedings,