SHAHIN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No. 1253/2019 of Yeroor Police Station which has been registered for offences punishable under Secs. 376(2)(n) and 323 of the IPC on the basis of the FI statement given by the lady defacto complainant on 18.09.2019 at 8.30 pm in respect of the alleged incidents which happened for the period from 18.02.2018 to 12.08.2019. The petitioner in this case has been arrested on 19.09.2019 and after his remand, under detention since then.

(2.) The prosecution case in short is that the lady defacto complainant, how is now aged 24 years is a divorcee having 2 children in her first marriage and the petitioner/accused now aged 23 years started having a love affair, he assured her that he would marry her and they started living together in her house and a child, who is now 10 months old has also been born to her in her relationship with the petitioner. She used to frequently tell the petitioner to formally solemnize the marriage, which he never cared and that when she had again repeated her demand on 12.08.2019 at 7.30 a.m., the petitioner got enraged at that and caught hold of her neck, slapped on her face and hit on her stomach and then left the house and thereby she feels cheated and abandoned and that the petitioner had committed rape on account of the sexual relationship between the parties, which she had agreed only on the basis of the assurance given by the petitioner that he would marry her etc. and that the petitioner has thus committed the abovesaid offences.

(3.) The learned counsel for the petitioner would point out that an intelligent reading of the abovesaid FIS would make it clear that the incidents narrated therein if broadly true, could have happened only on the basis of the consent between the parties and not otherwise and that the lady, who is said to be a divorcee and having 2 children had voluntarily agreed to live together with the petitioner/accused and that they had sexual relationship and that they had a child in that relationship etc. and the subsequent difference of opinion between the couple which may have compelled the man not to marry cannot be said to be the basis to contend that the consent of the woman was obtained on the basis of misconception of fact as envisaged in Sec.90 of the IPC.