FIROZ V.A., Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed the sole accused in the instant Crime No.588 of 2019 of Binanipuram Police Station, Ernakulam, registered for the offences punishable under Secs. 376, 376(2)(n), 406 and 420 of the IPC. The said case has been initially registered as crime No.1110/2019 of Mattanchery Police Station for the very same offences on the basis of the F.I Statement given by the lady defacto complainant on 20-09-2019 at 5.00 p.m, in respect of the alleged incidents, which happened for the period from 2016 onwards. Thereafter the said crime has been transferred and re-registered as the abovesaid crime No.588/2019 of Binanipuram Police Station as above stated. As the major incidents happened within the limits of the said Binanipuram Police Station.

(2.) The brief of the prosecution case as stated in the F.I Statement is that the lady defacto complainant in this case aged 39 years, is a divorcee having a daughter aged 16 years and son aged 15 years, and that she developed intimacy with the petitioner/accused and since October 2015 and thereafter in 2016 he had assured and promised her that he would marry her and pursuant to the said promise she started openly living with the petitioner/accused under the same roof for three and half years along with her two children. That misusing the said intimacy the petitioner has taken money from her and purchased a scooter, bullet motor cycle and furniture, and he had also taken moneys from her and later the lady defacto complainant came to know that he has cheated her as he is intending to marry some other woman and that thereby the petitioner has committed the abovesaid offence.

(3.) The learned counsel for the petitioner would point out that the abovesaid allegations of committing forcible sexual intercourse etc., are absolutely wrong and fabricated and further that the lady defacto complainant was extracting money from the petitioner and that the petitioner was constrained to file Anx.A1 complaint dated 11-06-2019 before the SHO, Mattachery, that she had taken huge amounts of personal loan from him and when he later demanded it, she threatened that she is not only repaying but also that she would raise false allegations against him and would ensure that his proposed marriage is also scuttled. That Anx.A2 dated 12-06-2019, is copy of the receipt issued by the Mattanchery Police Station evidencing the receipt of Anx.A1 complaint. Further that the petitioner has also constrained to file Anx.3 civil suit as O.S No.241/2019 before the Muniffs Court, Kochi on 15-06-2019, in which the lady defacto complaiant herein has been arrayed as defendant and the petitioner has sought for injunction against her so as not to obstruct the conduct of the marriage of the petitioner with another lady. That it is only on account of the said action taken by the petitioner as per Anx.A1 and A3 that the lady has now filed the instant FIS as late as on 20-09-2019 raising the false allegations and that too in respect of the events that have taken place more than three years back. Further it is pointed out that the long delay of more than three years has not been explained by the prosecution in any manner and therefore the impugned criminal proceedings are fatally vitiated on account of long and unexplained delay and very credibility and believability of the prosecution case in that stage. Further that even if assume for a moment that the incidents narrated in the FIS are broadly true and that it can be seen that the same would have happened only on the basis of consent and not otherwise as the lady has openly stated that she was openly living with the petitioner that the lady, the divorcee and who belongs to religious community other than that of the petitioner has been openly living with him for the last three and half years under the same roof and that too along with her teenaged children. That therefore the allegations made in FIS that the petitioner/accused had indulged in 'forcible sexual intercourse' without her consent is absolutely unbelievable and lacks credibility and the incidents could have happened only on the basis of consent between the parties and not otherwise. Therefore, none of the vital ingredients of the offence of rape as per Sec.376 of the IPC are made out.