FAISAL K. Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as accused No.1 among the three accused in the instant Crime No.475/2019 of Chokli Police Station, Kannur, which has been registered for offences punishable under Secs.376, 341 and 323 read with Sec.34 of the IPC, on the basis of the FI Statement given by the lady de facto complainant on 09.07.2019 at about 5.30 p.m., in respect of the alleged incident which had happened on 26.06.2019 at 10 a.m.

(2.) The prosecution case in short as revealed from the FI Statement is that the lady de facto complainant aged 22 years is a married woman, who is separated from her husband and that she has not secured dissolution of her marriage and that the petitioner is also a married man and that the petitioner is a close relative of the husband of the lady de facto complainant and that both became intimate and that the petitioner had informed her that he had already divorced her wife and that the petitioner had assured her that he he would marry her and that on 26.06.2019, he had taken her to his house on the pretext that she could meet her parents and when she had reached, there was none else in the house and there he had sexual intercourse with her and later the petitioner's sister and the said sister's husband had arrived there and made a scene and had assaulted the lady de facto complainant, etc. That later, the victim came to know that the petitioner is a married man, who has not secured divorce and that he is not interested to marry her, etc.

(3.) The learned counsel for the petitioner would point out that the abovesaid allegations are false and fabricated and that even if it is assumed for argument sake that the abovesaid incidents as narrated in the FIS has happened, then it could have occurred only on the basis of consent between the parties and not otherwise and that the vital ingredients of the offence of rape as per Sec.375 of the IPC are conspicuously absent in this case. Further it is pointed out that even going by the admitted version of the lady that she is a married woman, who has not so far secured divorce from her husband and therefore, the promise alleged to have been made by the petitioner to the victim, who is a married lady that the former would marry the latter, does not have any legal efficacy in the eye of law and that therefore, it cannot be even contended for a moment that the consent of the woman was obtained either on the basis of fraud or on the basis of misconception of fact as understood in Sec.90 of the IPC.