ABHILASH Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No.870/2019 of Arthunkal Police Station, which has been registered for offences punishable under Sec.376(2)(o) of the IPC, on the basis of FIS given by lady defacto complainant on 27.9.2019 at about 3 pm in respect of the alleged incidents which have happened for the period from November, 2018 to June, 2019.

(2.) The prosecution case in short is that, the petitioner accused now aged 40 years is a married man, and that the lady defacto complainant aged 36 years is also married to another man, and both of them are having their respective family and children, and that they are living in the immediate neighbourhood. On a day in November, 2018, the petitioner had come to her house, and had forcible sexual intercourse with her, and later he threatened her that he would divulge these incidents and had sexual intercourse with her on various occasions till June, 2019. Further that, the petitioner had threatened her that he would kill her husband if she divulge the abovesaid incidents and out of fear and shame she has not earlier reported these incidents and later she has given the FIS on 27.9.2019, which has led to the registration of the instant crime. The petitioner has been arrested in this case on 27.9.2019 and after remand, has been under judicial custody since then.

(3.) The counsel for the petitioner would point out that the abovesaid allegations are false and fabricated, and has also invited this Court's attention to the contents of the FIS dated 27.9.2019 given by the lady and would urge that even it is assumed that incidents narrated therein are true, then it can be easily inferred that the incidents of sexual intercourse could have happened only on the basis of consent between the parties, and that therefore the vital ingredients of offence as per Sec.376 of the IPC are not made out in this case. Further that, the alleged incidents have taken place for the period from November, 2018 to June, 2019, and no credible reasons are given by the lady for the extra ordinary delay in the lodging of FIS in this crime, as the FIS has been given only as late as on 27.9.2019, and the long and unexplained delay would vitiate the entire criminal proceedings, as it goes to the root of prosecution case, and as it affects the very believability and credibility of the prosecution case. The counsel for the petitioner would point out any reasonable person on going through the prosecution case can easily infer that, if the incidents narrated therein are true, then possibly only on the other members of the family coming to know about it, that the lady has come with the story of rape in order to have a stand in the family.