IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS WEDNESDAY, THE 14^TH DAY OF SEPTEMBER 2022 / 23RD BHADRA, 1944 CRL.MC NO. 4040 OF 2013 CRIME NO.150/2012 OF Kollam West Police Station, Kollam PETITIONER:

ANZAR AGED 26 YEARS S/O HUSSAIN, BISMILLA HOUSE, NEAR DH CENTRE, VETTIL VILLAGE, VARKKALA BY ADV SRI.SUNNY ZACHARIA RESPONDENTS:

1 STATE OF KERALA REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

2 ABDUL FAZIM AGED 34 YEARS S/O YUZUF KUNJU, PERUMALIL KOCHU VEETTIL, NEAR VISHANTHUKAVU TEMPLE, THIURMULLAVARM, KOLLAM

3 FATHIMA AGED 20 YEARS D/O SHAHIDA, MALIKA VAYAL, KOCHUTHANGAL NAGAR, 303 PALLIMUIKKU, KOLLAM BY ADVS.

SRI.BINU GEORGE SMT.HEMALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

14.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

BECHU KURIAN THOMAS, J.

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Crl.M.C. No. 4040 of 2013 ----------------------------------------

Dated this the 14th day of September, 2022

ORDER

Petitioner is the 2^nd accused in Crime No.150 of 2012 of Kollam West Police Station. He is indicted for the offences under Section 376, 366, 323, 506(2) r/w Section 34 of the Indian Penal Code, 1860.

2. The 3^rd respondent is the victim, at whose behest the crime was registered, alleging that petitioner and other accused had forcibly raped her from 17-02-2022 onwards. The victim is a married lady who had walked out of the marital home at the behest of the 1^st accused and thereafter, all the accused took her in a car to different places and raped her.

3. Sri. Sunny Zacharia, the learned counsel for the petitioner vehemently contended that the entire prosecution allegations, even if admitted, do not make out any offence against the petitioner. He further contended that, except for a bare mention that the 2^nd accused had committed rape on the victim, there is no other evidence or statement worth its name to prosecute the petitioner. The learned counsel also pointed out that even in the statement given under Section 164 of the Cr.P.C, the victim had not made any allegations against the petitioner. It was also submitted that continuance of the proceedings in the trial court is an abuse of the process of the Court.

4. Sri. Noushad K.A., the learned Public Prosecutor opposed the application and submitted that even though the 1^st accused and the 6th accused have been acquitted after due trial, the same cannot justify quashing of the proceedings as against the petitioner especially since the allegation is of rape. It was further submitted that the trial was only as against A1 and A6 and the victim had not mentioned anything against the other accused in the said trial. Therefore the said acquittal cannot be made use of to quash the proceedings against the petitioner. The learned Public Prosecutor also submitted that, in the statement given by the victim on 27-03-2013 which was after the statement given under Section 164 of the Cr.P.C. the victim had specifically alleged rape committed by the petitioner and therefore quashing the proceedings at this stage, cannot be resorted to.

5. I have considered the rival contentions and I have also perused the case diary.

6. The offence alleged against the petitioner is primarily under Section 376 of the IPC. Though initially, the victim had not stated anything regarding rape committed by the petitioner, subsequently, in the statement given on 27-03-2013, the victim specifically mentioned that the petitioner had also committed rape on her. It is also seen that the victim had on 19-02-2012 jumped out of a moving car in a bid to escape from the clutches of the accused.

7. The contention of the learned counsel for the petitioner that the conduct of the victim indicates an instance of consent for the act of sexual intercourse with the accused is a matter which requires appreciation of evidence at the time of trial. The contention that since the victim allegedly travelled with the accused in a car after the alleg