BINU U. Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No.539/2019 of Alakode Police Station, Kannur District, registered for offences punishable under Sec.376(2)(n) of the IPC. The crime has been registered on the basis of the FIS given by the lady defacto complainant now aged 28 years on 25.11.2019 at about 8.20 pm, in respect of the alleged incidents which happened for the period from 1.1.2018 to 4.11.2019. The petitioner has been arrested in this case on 26.11.2019 and after his remand has been under detention since then.

(2.) The brief of the prosecution case is that, the lady defacto complainant now aged 28 years is a divorcee having a daughter and she is staying with her parents. She became acquainted and later intimate with the petitioner accused aged 39 years and it developed into a love affair. The petitioner had assured her that he would marry her and that he had forcible sexual intercourse with her. The petitioner used to come to her residence when she was alone and the sexual incidents had happened on many occasions. Later in July, 2019, it was found that the lady was pregnant and the petitioner had persuaded her to have abortion and taken her to a doctor, but the doctor did not co-operate. Even thereafter the petitioner was maintaining relationship with the lady. Later when the lady and her parents pressed the petitioner to marry her, he was not taking any interest to marry her. Her parents later went to the petitioner's house and then they came to know that the petitioner is already married to another lady and is having two children, etc . It appears that the last sexual incident had happened on 4.11.2019.

(3.) The counsel for the petitioner would point out that the abovesaid allegations are false and baseless, and further that a reading of the FIS would make it clear that the lady knew all the details of the petitioner and the allegation that the petitioner had suppressed that he is already a married man, etc appears to be wrong and false. Further that, even the lady is not legally divorced though she is separated from her husband. It is urged that, even the alleged incidents are broadly taken to be true, then the same would have happened only on the basis of consent between the parties and not otherwise, and hence the vital ingredients of the offence as per Sec.376 of the IPC are not made out in the instant case.