SHEMEER Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner has been arrayed as the sole accused in the instant Crime No.281/2019 of Nenmara Police Station, Palakkad, which has been registered for offences punishable under Secs.354, 376(2)(n) of the IPC on the basis of the FI Statement given by the lady de facto complainant on 17.07.2019 at about 10.30 p.m. in respect of the alleged incidents which have happened for the period from 01.11.2016 onwards. The petitioner has been arrested in relation to the abovesaid crime on 19.07.2019 and has been under detention since then.

(2.) Learned counsel for the petitioner would point out that the abovesaid allegations have been falsely foisted on the petitioner and further that the incidents narrated in the FI Statement given by the lady de facto complainant are to be true, then such incidents should have happened only on the basis of consensual sexual relationship between the parties. Learned counsel for the petitioner has elaborately taken this Court's attention to the contents of the FI Statement made by the lady de facto complainant on 17.07.2019, which is produced as Annexure-II in this bail application, wherein she has stated that the lady is now aged 29 years and that she was having an intense love affair with the petitioner/accused now aged 26 years since the last six years and that they are living in the immediate neighbourhood and that when her marriage with another person was fixed, the petitioner had assured her that he would marry her and had asked her to go along with him in his autorikshaw to an isolated place near Nenmara Pothundy Dam on a day in November, 2016 and that there they had sexual relationship and that later even after her marriage with another person, she had sexual relationship with the petitioner on certain other occasions and as on the basis of the assurance made by the petitioner that he would marry her, etc. Further that, the petitioner had also extracted about Rs.30,600/- from her stating some urgent purposes and that he has not repaid the said amount. That later, the petitioner has not shown any interest in marrying her and she has made the instant complaint, etc.

(3.) On the basis of the contents of the abovesaid FI Statement, Smt.Sanjana Rachel Jose, learned counsel appearing for the petitioner would point out that the abovesaid allegations in the FI Statement would make it clear that the lady had made her own voluntary choice to go with the petitioner and then she had sex with the petitioner on an occasion prior to her marriage and even thereafter and that the promise made by a man to a married woman that he would marry the latter, does not have any legal efficacy and that it has been held in various rulings of the Apex Court and various High Courts and this Court that there is a substantial difference between forcible sexual intercourse of rape as per Sec.376 of the IPC and consensual sexual relationship and that in a case where the woman was maintaining sexual relationship with the man for quite some time, then it is very difficult to hold that the allegations of rape are made out and that even breach of promise to marry cannot be the basis to contend that the consent of the lady was obtained on the basis of misconception of facts as per Sec.90 of the IPC, etc. Further it is pointed out that the continued detention of the petitioner is no longer necessary as he has already been under detention since 19.07.2019.