MIDHUN M. Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner has been arrayed as accused in Crime No.411/2019 of Ernakulam Town North Police Station, which has been registered for offences punishable under Secs.376 and 417 of the IPC.

(2.) The prosecution case, as is made out in the FIS given by the lady defacto complainant/victim on 5.3.2019 is that, she is a person of Nepali origin, and that she had come to Cochin and that she was having a live in relationship with her lover, through him a girl child was born, and that later he had deserted her, and that later the petitioner accused and the lady victim got befriended through Whatsapp, and that he had promised to marry her, and that they had sexual relationship during various periods from June, 2016 upto the end of February, 2017, and that later he had abandoned her, and the lady defacto complainant came to know that he had married another lady and that in the course of relationship, he had taken Rupees One Lakh from her, etc.

(3.) Learned counsel appearing for the petitioner would point out that mere reading of the FIS would lead to conclusion that, the alleged incidents would have occurred only on the basis of consensual sexual relationship between the parties, and that the offence of rape has not been made out, and that the allegation that the accused had taken money from the lady victim, etc, have been made only to add extra strength to her case, etc. Learned counsel for the petitioner has cited various decisions of the Apex Court and various High Courts including this Court to hammer home the point that, there is fine distinction between forceful sexual intercourse constituting rape as understood in Sec.376 of the IPC and consensual sexual relationship between the parties, and that even going by the case of the lady she was having a relationship for over a period with the accused and it cannot be said that a consent was obtained on the basis of misconception of fact, and that breach of promise to marry cannot be the basis to contend that the consent was obtained on the basis of misconception of fact as per Sec.90 of the IPC.