The deception regarding marriage vitiated consent, resulting in the offense of rape under IPC, supported by the POCSO Act provisions.

O R D E R

The accused in S.C.No.859/2016 on the files of the Special Court for Trial of SC/ST (PoA Act Cases), Thrissur, has filed this petition under Section 482 of the Code of Criminal Procedure , 1973, to quash the proceedings against him in the aforesaid case. The offences alleged against the petitioner are under Section 376 of the Indian Penal Code , 1860, and Section 3 (1)(xi) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act , 1989 (in short, ‘Act’).

2. The prosecution case is that the petitioner/ accused who belonged to the Christian community, committed rape upon the de facto complainant who belonged to the Scheduled Caste/Schedule Tribe community by giving the false promise of marriage. It is alleged that the petitioner resorted to sexual intercourse with the de facto complainant on various occasions in the year 2015 at her residence after making her believe that he would marry her. Thereafter, on 30.03.2016, the petitioner is said to have taken the de facto complainant to a lodge room at Guruvayoor and indulged in sexual relationship with her, after her consent by giving the false promise of marriage. Thereafter, the petitioner allegedly refused to marry the de facto complainant for the reason that she belonged to the Scheduled Caste community. Thus, the petitioner is alleged to have committed the aforesaid offences.

3. In the present petition, the petitioner would contend that he is totally innocent and that a false case has been foisted against him. It is further stated that the allegations levelled in the final report do not constitute any offence as alleged.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

5. The final report and the accompanying records contained clear indications that the petitioner resorted to sexual intercourse with the de facto complainant after deceitfully making her believe that he would marry her. On one occasion, the petitioner is alleged to have taken the de facto complainant to a lodge room at Guruvayoor by giving the false promise of marriage and indulged in sexual relationship with her. Thereafter, he is alleged to have retracted from his offer to have marriage with the de facto complainant. It is apparent from the allegations in the final report and the accompanying records that the petitioner had no intention to marry the de facto complainant right from the very beginning when he started relationship with her. So also, it is manifest from the case records that the offer of marriage was given by the petitioner as a ruse to obtain her consent for sexual intercourse. Thus, it is apparent that the consent given by the de facto complainant for the sexual relationship with the petitioner is vitiated by misconception of facts. That being so, the offence of rape is clearly attracted in the facts and circumstances of the case.

6. The learned counsel for the petitioner argued that the offence under Section 3 (1)(xi) of the Act has no applicability in the case on hand, since there is absolutely nothing on record to show that the petitioner resorted to assault or force with the intent to outrage the modesty of the de facto complainant. It is a matter to be looked into by the Trial Court at the appropriate stage of framing charges. Since it is revealed from the case records that the petitioner, who does not belong to the Scheduled Caste/Schedueld Tribe community, has committed rape upon the de facto complainant who belonged to the Scheduled Caste community, with the knowledge that she belonged to such community, the allegations in the final report would clearly constitute the offence under (2)(v) of the Act. Any way, this is a matter to be dealt with by the Trial Court at the stage of fr