SURESH Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER is accused in Crime No.220 of 2007 of Kodungallur Police Station and S.C.No.171 of 2008 of the court of learned Sessions Judge, Thrissur for offences punishable under Secs.506(1), 442, 447 and 376 of the Penal Code. That case arose on a complaint preferred by the alleged victim before learned Judicial First Class Magistrate,, Kodungallur and forwarded to the police for investigation under Sec.156(3) of the Code of Criminal Procedure (for short, "the Code"). Police after investigation filed final report (Annexure-4) alleging commission of offences as above stated. Case is that on 28.11.2005 at about 9 a.m petitioner trespassed in to the house of the de facto complainant/CW1 and others where they were residing on rental basis, criminally intimidated her with death, she was subjected to forcible sexual intercourse, she conceived from the petitioner and delivered a child on 08.07.2006. Case of petitioner is that himself and the de facto complainant were in love, got married at the residence of the de facto complainant on 28.04.2004 in accordance with the customary rights and in that wedlock the child was born on 08.07.2006. While so, learning that the de facto complainant is in illegal custody of her mother, petitioner filed a petition before the Magistrate concerned under Sec.97 of the Code based on which the mother of the de facto complainant was directed to produce her and the child in court. It is the case of petitioner that it is after getting notice of the said order that under instruction and instigation of the mother the de facto complainant was constrained to file a complaint against petitioner as aforesaid which resulted in Annexure-4, final report. Learned counsel contended that in the circumstance, final report and proceedings against petitioner are nothing but an abuse of process of court and hence interference of this court is required. Learned counsel argued that no document has been produced by the prosecution along with the final report to show age of the alleged victim at the relevant time. I have heard learned Public Prosecutor as well. It is pointed out that there is no reason to interfere with the final report.

(2.) 2. True that petitioner has set up a defence based on alleged love affair and marriage with the de facto complainant on 28.04.2004 and their living together as husband and wife for quite some time and in that wedlock a child being born. But these are defences available to the petitioner. In the complaint the de facto complainant has narrated how according to her the alleged incident occurred. She has stated about the incident on 28.11.2005 at about 9 a.m when petitioner is said to have trespassed into the house of de facto complainant, criminally intimidated her, throttled her and subjected her to rape. She has also spoken about some prior incident when she was going to the school, petitioner allegedly threatened her, persuaded and induced her to have sexual intercourse, her complaining of that matter to her mother and to avoid threat of petitioner, de facto complainant and mother shifting residence to a rented house where the alleged incident occurred on 28.11.2005. Question whether those allegations are correct or not is a matter to be decided by the trial court. Based on the defence set up by petitioner I cannot say that the case against petitioner is absolutely false and is required to be thrown out at the threshold. Petitioner has to face the trial. This criminal miscellaneous case is dismissed.