PRAKASH Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner has been arrayed as the sole accused in Crime No.84/2019 of Cherpulassery Police Station which has been registered for offences punishable under Section 376 (1) of the IPC . The petitioner has been arrested in relation to the abovesaid crime on 24.03.2019 and has been under judicial custody since then.

(2.) The learned counsel for the petitioner would point out that the allegations have been falsely foisted on him and that even a mere perusal of the FIS given by the lady defacto complainant would show that there is absolutely no iota of truth or believability about her version and that even if it is assumed that there was a relationship between the parties, the incidents could have occurred only on the basis of consent of the parties and that it will not constitute the offence of rape as per Section 376(1) of the IPC. Sri. C. Dheeraj Rajan, the learned counsel for the petitioner/accused could invite this Court's attention to the various aspects disclosed in FIS given by the lady defacto complainant. The said FIS given by the lady defacto complainant, aged 21 years, would show that she was in friendly relationship with the petitioner/accused who started expressing his love for her and that she was not interested to have any love affair with him and that their common interest was their activity in connection with a political organization and both of them were activists of political youth organization, DYFI and that in connection with her involvement in publication of a college magazine, she had got acquainted with the accused in June, 2018 in the DYFI office at Cherpulassery and that they had gone to various commercial shops to collect their advertisements to be put up in the said college magazine and that on the day in question, he had taken her to an isolated house and when she knew that the house was isolated, she did not even enter into the house and both of them later came back to the DYFI office and both of them were sitting in the office. The petitioner/accused had offered her lemon juice, which she had taken and later, she felt drowsy and went to sleep on the desk. Later, when she woke up at around 2.30 p.m. on that day, she found that she was sleeping in a bench put up in the very same office and except for saying that her churidar shawl was displaced,she has no case that any attempts was made by anyone to remove her clothes to have sexual intercourse etc. and that the case put up in the said FIS is that she suspects that the petitioner had sexual intercourse with her in the said office on that day and that later she left the office and then much later, she found that she was pregnant and she delivered a baby girl in the bathroom of her house etc. Further, it is pointed out that one of the neighbours of the lady had found a baby girl was abandoned in the said locality and it was found out that the child was that of the lady and she had to take back the child.

(3.) The petitioner would point out that since it is only thereafter that the lady had given the FIS raising the abovesaid allegations in relation to the instant crime. After taking this Court's attention to the said FIS, the counsel for the petitioner point out that there are no precise allegations anywhere in the FIS that the petitioner/accused had sexual intercourse with her on the day in question and the only case projected therein is that she suspects the role of the petitioner in that regard. Accordingly, it is pointed out by the petitioner that the FIS given by the lady defacto complainant is not believable and credible. Further that, at any rate, even if it is assumed that there was a relationship between the parties and that the accused is the father of the child etc, then it would only lead to the conclusion that the abovesaid incident would have happened only on the basis of the consent between the parties, and that the incidents would not have happened in the way projected by the lady in the FIS etc. The counsel for the petitioner/accused would also point out that as the petitioner has been under detention for the last 71 days, his continued detention is no longer necessary.