PRADEEP KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No.1813/2019 of Sasthamcotta Police Station, Kollam District, which has been registered for offences punishable under Sections 323, 324, 376 of IPC on the basis of the First Information Statement given by the lady defacto complainant at about 10 p.m. on 28.9.2019 in respect of the alleged incident which happened on 31.01.2019 onwards. The petitioner has been arrested in this case on 29.9.2019 and after his remand, has been under detention since then.

(2.) The brief of the prosecution as made out in the First Information Statement given by the lady defacto complainant is that the lady defacto complainant, aged 23 years is an unmarried woman and she has been working as an Accountant in a Super Market, wherein the petitioner/accused, aged 42 years is working as a Manager and that the lady and two other women staff have been given accommodation on the top floor portion of the Super Market complex and that on 31.1.2019, the petitioner had asked her to come terrace of the said building at about 12 midnight and that there he had forcible sexual intercourse with her and that he had assured her that he would marry her etc. Later, she came to know that the petitioner is a married man having wife and children and that he asked her whether she is still willing to live with him, as he could not live any further without her. Later, on a day in June, 2019, he had informed her that his wife has gone for attending a funeral elsewhere and asked her to come to his residence and she went there in an autorickshaw at about 10 a. m. on that day to his house, when he alone was then and there he had again forcible sexual intercourse with her. Later on the same month, on one or two occasions, when his wife and children were not there in the house, she had gone to his house, where they had sexual intercourse. That on various such occasions, he had taken video pictures of the intimate scenes and she had broken her mobile and thereafter he had assaulted her. Thereafter, on another day, he had asked her to come to Sasthamcotta and from there, she had gone with him in his bike and stayed in a resort near Monroe Island and had sexual intercourse there. At that time, he had assured her that he would marry her. Later, in the shop, he had bodily relationship with her on quite a few occasions. After the Onam holidays, the hostel was stopped and she had stayed elsewhere and when she insisted that the petitioner should marry her, he evaded from the said issue etc. Further it is seen that in her subsequent statement given to the Police under Section 161 of the Cr.P.C. she has stated about the incident on 31.1.2019 night that he had called her to the terrace and had told her that he would marry her and thereafter, he had forcible sexual intercourse with her etc.

(3.) The learned counsel for the petitioner would point out that a close and intimate reading of the F.I.S and the other statement given by the lady victim would make it clear like the day light that even if it is assumed that the incidents narrated therein are not be true, then it would have happened only on the basis of consensual sexual relationship between the parties and not otherwise. That the lady herself has no case that right from the beginning, the petitioner has at any time earlier represented to her that he is unmarried and that she has clearly stated that, later the petitioner had told her that he is a married man having wife and children etc. and that the alleged promise said to have been made by a married man to an unmarried woman that the former would marry the latter, does not have any legal efficacy and cannot be the basis to content that the consent of the woman was obtained on the basis of the misconception of the fact as envisaged in Section 90 of the IPC etc. The learned counsel for the petitioner has also relied on various decisions of the Apex Court and this Court, which have laid down the vital and substantial distinction between rape and consensual sexual relationship between parties, wherein it has been held that where a man and a woman have a sexual relationship for a quite some time, then it is really difficult to make out a case of rape and further that mere promise made by the man that he would marry the lady etc. cannot be the basis to contend that the consent of the lady was obtained on the basis of misconception of facts as per Sec.90 of the IPC etc. Further, it is urged by the learned counsel for the petitioner that since the petitioner has already suffered detention for the last about a month or so, his continued detention may not be necessary and that he may be released on regular bail subject to stringent conditions.