SARATH Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No.1901/2019 of Mavelikkara Police Station which has been registered for the offences punishable under Secs.493, 354, 376 and 506 of the IPC . The abovesaid case has been lodged pursuant to the private criminal complaint filed by the lady defacto complainant in which the learned Magistrate has issued under Sec.156(3) of the Cr.P.C . to register a crime and to investigate into the allegations raised in the said complaint. The incidents alleged therein are said to have been happened for the period from 01.03.2016 to 25.03.2019.

(2.) The brief of the prosecution case is that the petitioner now aged 31 years and the lady defacto complainant now aged 38 years were acquainted with each other initially through Facebook and later, the former worked as a driver and the latter worked as a home maid in the residence of a senior citizen. Later, it blossomed into a strong and intense love affair and the petitioner had assured her that he would marry her. Further, according to the lady defacto complainant, the petitioner had taken her to a temple at Palani and he had married her and assured that he would formally conduct the marriage later and then they had sexual relationship on various occasions at various places and she had so agreed on the basis of the assurance made by the petitioner that he would formally conduct the marriage later. Later, the petitioner lost interest in her, abandoned the marriage proposal and she felt cheated and she had given the instant complaint before the Police by way of FIS.

(3.) The learned counsel for the petitioner would point out that the abovesaid allegations are false and baseless. Further that, even if it is assumed that the incidents narrated therein are true, the same could have happened only on the basis of the consensual sexual relationship between the parties and not disclose any of the vital ingredients of the offence of rape as per Sec.376 of the IPC . The learned counsel for the petitioner placed reliance on various rulings of the Apex Court and various High Courts including this Court which have laid down the legal principles relating to the substantial and vital distinction between rape and consensual sexual relationship between the parties. It has been held that where a man and a woman continues to have sexual affair for quite some time, it is rather difficult to make out a case of rape and that the alleged breach of promise to marry cannot be the basis to contend that the consent of the woman was obtained on the basis of the misconception of fact under Sec.90 of the IPC etc. The learned counsel for the petitioner would thus urge that this Court may grant anticipatory bail to the petitioner. The learned Prosecutor has seriously opposed the plea for anticipatory bail and has pointed out that there is a strong possibility of the petitioner intimidating or influencing the witnesses, more particularly the lady defacto complainant, if he is let out on bail.