SUMESH Vs. THE STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein is the sole accused in Crime No.789 of 2016 of the Muttom Police Station, registered under Sections 376, 417, 420, 323 and 506(ii) of the Indian Penal Code, and under Section 3(1)(w)(i) of the Schduled Caste and Scheduled Tribe (Prevention of Atrocities) Act. He seeks regular bail under Section 439 of the Code of Criminal Procedure. The application filed by him for regular bail was dismissed by the learned Sessions Judge, Thodupuzha on 26.11.2016. The petitioner has been in judicial custody since 04.11.2016.

(2.) The victim of offence in this case is a lady aged 30 years having two children, aged 11 years and 8 years respectively. She has been residing separately from her husband. After separation, the petitioner herein developed intimacy with her, and made a promise that he would marry her and look after her children. Accordingly, on 10.09.2012, the petitioner took her to his house where he subjected her to sexual intercourse by force and threat, and when she cried he promised that he would marry her. The complaint shows that thereafter, believing the words of the petitioner, she started living with him, and they lived together as man and wife for four years. After four years the petitioner's attitude changed, and he started harassing her. On 11.10.2016, it is alleged, she was severely assaulted by him, and regarding this incident, she made a complaint before the police. At the instance of the police, a compromise was arrived at when the parties felt that it is impossible to live together. As part of the compromise, a cheque for Rs.3,00,000/- was issued by the petitioner to the victim as compensation, but the cheque happened to be bounced. On a perusal of the complaint, I find something to suspect in this case. It is really doubtful whether this is a case of rape. The complaint itself shows that even after the first incident of the alleged rape, the victim lived with the petitioner as his wife for four years, and it is impossible to believe that the lady believed the promise for four years, and waited for four years. What is revealed by the complaint prima facie is that it was in fact a "live in" relationship, but when they found it difficult to continue it, they came to compromise, and as part of the compromise the petitioner paid Rs.3,00,000/- by way of cheque. Probably when the cheque was bounced, she brought a complaint alleging rape. Whether this is actually a case of rape is a matter for decision on trial. The complaint itself shows that all the instances of sexual intercourse between the petitioner and the complainant were in fact consensual. Whether the consent was in any manner vitiated, or whether the story of promise made by the complainant is believable, etc is a matter for decision on trial.

(3.) This application for regular bail is opposed by the learned Public Prosecutor on the ground that investigation is still in progress, and that if the accused is now released, he will definitely obstruct the investigation.