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IN THE HIGH COURT OF KERALA AT ERNAKULAM
C. JAYACHANDRAN, J
SETHU SABU – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 10610/2024
Key Points: - The court quashed the F.I.R. and final report in Crime No. 444/2024, holding that there was a long-term consensual relationship and no deception to vitiate consent. (!) (!) (!) - The relationship lasted five years (2018 to 30-12-2023) with multiple instances of consensual sexual relations, including pregnancies that were aborted; no clear evidence of deception or bad faith in promissory to marry. (!) (!) (!) - The court relied on precedents stating that consent in a long-term relationship cannot be deemed vitiated by a false promise to marry unless proven to be in bad faith. (!) - The court found that the alleged rape could not be established given the long-standing consensual relationship and absence of misperception of fact; consequently, Section 90 and the elements of Section 375 were not satisfied. (!) (!) - The order explicitly allowed the Crl.M.C. and quashed Annexure-3 F.I.R. and Annexure-1 final report in Crime No. 444/2024 and all further proceedings. (!) - The F.I.R. alleged rape based on a false promise to marry and fisting; however, the court did not find substantiation of rape given the ongoing relationship. (!) (!) - References to Supreme Court decisions (Shivshankar v. State of Karnataka, Pramod Suryabhan Pawar, Dr. Dhruvaram Sonar) underpin the judgment’s reasoning on consent and deception. (!) (!) (!)
ORDER
The petitioner herein is the sole accused in Crime no.444/2024 of Mundakayam Police Station. Annexure-3 is the F.I.R. and Annexure-1 is the final report. As per Annexure-1, the offences alleged are under Sections 354 , 323, 376(1), 376(2)(h) and 376(2)(n) of the Penal Code. The petitioner seeks quashment of Annexure-3 F.I.R., Annexure-1 final report and all further proceedings in the crime on the premise that the allegations in the final report, taken on its face value, will not constitute the offences alleged.
2. Heard the learned Counsel for the petitioner and the learned Public Prosecutor. The defacto complainant/victim is the 2nd respondent, to whom notice was issued. Though the same was served on the 2nd respondent, she had not chosen to appear before this Court.
3. The specific allegation of the prosecution is that, the accused person, with the necessary animus to fulfill his lust, extended a false promise to marry the victim/CW1 and committed rape on her at various places, besides fisting her, thus, committing the offences enumerated above.
4. A reference to the F.I.S, forming part of Annexure-3 F.I.R, is profitable. The victim’s version unfurls by stating that she got acquainted with the accused during 2018 and in the month of June 2019, the accused extended a promise to marry, which the victim believed. Acting upon the same, the victim was taken to one ‘Bhaskara Home Stay’, at Elappara during June 2019 and she was raped, against her will. Thereafter, she was taken to the house of the accused at Punchavayal on several occasions and was raped repeatedly. In 2022, the victim was taken to a lodge near Embassy Hotel, Erumeli and committed rape, against her will. Thereafter, both the petitioner/accused and the victim got employment at Thrissur and the accused raped her at Majestic Hotel near K.S.R.T.C. bus stand, Thrissur, pursuant to which, she became pregnant, which was later aborted. Extending the promise that the petitioner/accused will marry the victim, they have started residing at a house near Kottackal, Malappuram from July, 2023 onwards and they were living together. They resided together for six months and she became pregnant again. Knowing the same, the petitioner/accused fisted and kicked her and the pregnancy got aborted. In the meanwhile, the victim got information that the petitioner/accused is maintaining physical relationship with other females. The petitioner/accused and the victim got physical contact finally on 30.12.2023, whereafter the petitioner/accused became indifferent to the victim. A sum of Rs.3,50,000/- has been extracted by the accused. On the day before F.I.S., the victim got information that the petitioner/accused had taken a room at Lucia Hotel with another girl. The victim went there and there was a quarrel between the petitioner/accused and the victim. Accordingly, the First Information Statement was filed.
5. This Court will straight away refer to the statements under Section 161 of the parents of the victim, which forms part of Annexure-1 final report. Suffice to say that, both would specifically speak about the live-in-together relationship of the petitioner/accused and the victim, pursuant to an affair between them, to which, both the parents were against. The parents were given to understand that the petitioner/accused and the victim were married to each other. In this regard, I will also refer to the statement given by one Goutham, who was working with the victim girl. He would also state that the victim was in love with the petitioner/accused and they have decided to marry each other.
6. In the final report, as against the description of the witnesses and the points sought to be proved through them, it is stated that witnesses 2, 3 and 4 are cited to prove the factum of the victim and the accused living together as husband and wife.
7. A perusal of the above referred state of affairs would clearly indicate that there was a long standing relationship between the petitioner/accused an
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