AJAYAKUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) This application is filed by the applicant under section 438 of the Code of Criminal Procedure, 1973 seeking anticipatory bail in connection with the FIR, being Crime No.1374 of 2018, registered with Kayamkulam Police Station, for offence punishable under Section 376 of the Indian Penal Code. He is the sole accused in the said crime.

(2.) The victim, a lady aged 27 years, is married and the mother of two daughters. The applicant is a neighbour and a distant relative. According to the victim, some time in the month of April, 2017, she went to the house of the applicant from making some enquiry. She was taken to the first floor of the building and she was persuaded to have sexual intercourse. According to the victim, it was not consensual. She did not disclose the incident to her husband. According to her, thereafter on multiple occasions, she has had sexual intercourse with the applicant. On 23.4.2018, she was called over phone by the applicant and she was asked to come to his house. While she was having a telephonic conversation, her husband came from behind and snatched the telephone. He overheard the conversation and realised that his wife was having an improper relationship with the applicant. When he questioned, she disclosed about the previous incidents. She also alleges that she used to chat with the applicant in Whatsapp and other chat programmes using the mobile number of her husband.

(3.) The learned Senior Counsel appearing for the applicant vehemently contended that even if the prosecution case is admitted as such, the act of the applicant can be regarded as immoral, but the allegation would not constitute the offence of rape. According to the learned counsel, acknowledged consensual physical relationship between two willing adults would not constitute an offence under Section 376 of the IPC, more so, when the victim was a major on the date of occurrence.