XXXXXXX Vs. STATE OF KERALA

JUDGEMENT

(1.) This criminal miscellaneous case has been filed under Sec. 482 of the Code of Criminal Procedure, by the accused in S.C.No.1069/2022 on the files of Additional Sessions Court-III, Kollam arising out of Crime No.586 of 2020 of Kulathupuzha Police Station, Kollam, seeking to quash Annexur A1-FIR, Annexure-A2 final report and all further proceedings pursuant thereto.

(2.) The prosecution allegation is that the accused with intention to subject the defacto complainant to sexual intercourse and to satisfy his lust had sexual intercourse with the defacto complainant on a day during March, 2017 at the uncle's house of the accused, against her will. Thereafter threatening disclosure of the said overt act, he repeated the same and thereby committed offences punishable under Ss. 376 and 376(2)(n) of the Indian Penal Code.

(3.) While canvassing quashment of the proceedings, the learned counsel for the petitioner pointed out settlement of the case in between the accused and the defacto complainant referring to Annexure-A3 affidavit sworn by the defacto complainant, dtd. 19/6/2023. Accordingly it is submitted that quashment sought for on the ground of settlement is liable to succeed. Apart from that the learned counsel for the petitioner submitted that if the quashment sought on the ground of settlement could not be allowed, then also the quashment is liable to succeed since the defacto complainant, who is a married woman having 2 children during the subsistence of her legal marriage had developed relationship with the accused and they had a long cohabitation as part of consensual relationship where the petitioner also is a married person. It is also submitted that no promise of marriage would sustain in the facts of this case, since both parties are married during the entire period of their relationship. The learned counsel for the petitioner placed decisions reported in [2022 ICO 2322 : 2022 (6) KLT 832], Tino Thankachan v. State of Kerala and another; [2022 ICO 526], XXX v. State of Kerala and another; [2023 ICO 687], Vishnu and others v. State of Kerala and others and [2012 (4) KLT 108 (SC)], Gian Sing v. State of Punjab to substantiate this contention.