PRASANTH NELSON Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Annexure-A1 Crime No.1453/2019 of Kalamassery Police Station which has been registered for the offence punishable under Sec.376 of the IPC on the basis of the FIS given by the lady defacto complainant on 24.08.2019 at about 6.30 pm in respect of the alleged incidents which happened for the period from 12.04.2018 to 19.03.2019. The petitioner has been arrested on 28.08.2019 and has been under detention since then.

(2.) The case projected in the FIS given by the lady defacto complainant on 24.08.2019 on the basis of which the present Annexure-A1 crime has been registered is that the lady defacto complainant aged 27 years is a married woman and that her divorce proceedings are still pending even as on the date of submission of the FIS on 24.08.2019 and she had advertised in the matrimonial column of the news paper seeking response from the interested persons in respect of her marriage proposal and that the petitioner aged 31 years has responded to the same and that both had contact for some time and became intimate and that he had promised her that he would marry her and that based on the said assurance, she had sexual intercourse with the petitioner on several days for the period between 12.04.2018 to 19.11.2018 in a rented house at Thevara, Ernakulam and later for the period from 20.11.2018 to 19.03.2019 in yet another rented house taken by them near Kalamassery and later the petitioner had shown disinterest in the marriage proposal and that during the period of their staying together, the petitioner had taken Rs. 2 lakhs from her and also her gold ornaments coming to 35 sovereigns and that she has been cheated and that she had given her consent to have sexual intercourse with the petitioner only on the basis of the assurance that he would marry her and that the petitioner has committed the abovesaid offences.

(3.) The learned counsel for the petitioner would point out that as a matter of the fact the lady defacto complainant had secured divorce from her first husband and later she had contracted yet another marriage in respect of which divorce proceedings are still going on and that the fact that she is a married person has been fully suppressed by her from the petitioner and that the petitioner had responded to her matrimonial advertisement only on the clear representation made by her that she is an unmarried woman and that even according to the lady's version, the parents of the petitioner were also residing at the time when she was residing with the petitioner and further that the petitioner came to know that the defacto complainant has married twice, and that she secured divorce only in respect of her first marriage and the divorce proceedings in respect of her second marriage is still going on and that the petitioner came to know about her two marriages and that she is even now a married person and that she has not lawfully secured divorce in respect of her second marriage, it was the petitioner who has been cheated by the lady and therefore, he was forced to withdraw from the marriage proposal. Further the allegations that the petitioner had taken money and gold ornaments from her were absolutely false and fabricated and that on the other hand on various occasions, she has extracted more than Rs.5 lakhs from the petitioner and the petitioner has been advised to initiate separate legal proceedings against the lady for having cheated the petitioner and for recovery of the money from her etc. Further that the lady has clearly admitted in the first sentence of her FIS in this crime that she is a married woman and that her divorce proceedings are still going on and that therefore, the so called assurance or promise said to have been made by the petitioner to the lady defacto complainant, who is a married woman that the former would marry the latter, does not have any legal efficacy in the eye of law at all and therefore, it cannot be even contended for a moment that the consent was obtained on the basis of either fraud or misconception of the fact as envisaged under Sec.90 of the IPC and that going by the admitted allegations of the FIS, if the sexual incidents are assumed to have happened, then the same would have occurred only on the basis of the consent between the parties and not otherwise and that therefore, even the bare ingredients of the offence of forcible sexual intercourse or rape as per Sec.376 of the IPC are not made out in the instant case.