AKHIL Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has now been arrayed as the sole accused in the instant Crime No.649/2019 of Ramamangalam Police Station for the offences punishable under Sections 376 and 376(2)(n) of the IPC. The subject case in this case is Crime No.648/2019 of Ramamangalam Police Station, which was initially registered on 24.9.2019 under Section 57 of the Kerala Police Act, 2011 as a person missing case on account of the missing of the lady victim in this case, aged 21 based on the first information/complaint given in that regard by her father. In the said first information conveyed by the victim's father, it is stated that the lady victim was having an affair with the petitioner and that the victim's father suspects that she would have eloped with the petitioner etc. It appears that the Police, thereafter, has traced the lady victim and based on her statement, the offence has been altered as stated above, in which the petitioner has been arrayed as the sole accused.

(2.) The prosecution case in short is that the petitioner, aged 24 years had promised to marry her and had taken away the lady victim, aged 21 years from her parental home at Pambakuda near Piravom on 24.9.2019 and that initially he had taken her to the corridor of the parish hall a church of St.Mary's Cathedral, Piravom and there he had forcible sexual intercourse with her at 2 p.m. on that day. Later, he had taken her to a place near Karunagappally an in a place nearer shop, he had again forcible intercourse with her on the same day at 10.30 p.m. Later, he had taken her to a shunted train in Karunagappally railway station, where he had forcible sexual intercourse with her at 1.30 a.m in the early morning hours of 25.9.2019. Though he had earlier promised to marry the victim, later he had abandoned her and thereby he has committed above said offences.

(3.) Smt. S. Seetha, learned counsel appearing for the petitioner would urge that even going by the admitted allegations of prosecution, it can be seen that the lady victim was having a love affair with the petitioner and that she is a person above the age of 21 years and that she has voluntarily gone along with the petitioner and if the alleged sexual incident is true, then it would have happened only on the basis of consensual sexual relationship between the parties and not otherwise and therefore, the vital ingredients of offence of rape as per Section 375 of IPC are not made out in this case. The learned counsel for the petitioner would also highlight the various decisions of the Apex Court and various High Courts including this Court regarding the substantial and vital distinction between rape and consensual sexual relationship between the parties, wherein it has been held that where a man and a woman have a sexual relationship for a quite some time, then it is really difficult to make out a case of rape and further that mere promise made by the man that he would marry the lady etc. 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. Accordingly, it is urged that the petitioner may be released on regular bail subject to stringent conditions that may be imposed by this Court.