DHANEESH DEVASY Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner herein has been arrayed as the sole accused in the instant Crime No.716/2019 of Chavakkad Police Station, which has been registered for offences punishable under Sections 376(2)(k) and 376(2)(n) of the IPC. The said crime has been registered on the basis of the F.I. Statement given by the lady de facto complainant on 23.11.2019 at about 4.10 p.m in respect of the alleged incident which happened for the period from 1.2.2017 to 15.10.2019. The petitioner has been arrested in this case on 23.11.2019 and after his remand, has been under detention since then.

(2.) The brief of the prosecution case is that the lady de facto complainant, aged 20 years was earlier employed as a Sales Girl in the Textile Shop run by the petitioner/accused, aged 29 years, who is an unmarried man and that an affair started between them and the petitioner had assured her that he would marry her and for the period from October, 2017 onwards, on various occasions, they had sexual intercourse in a room attached to the petitioner's shop and she had consented for the same only on the basis of assurance given by the petitioner that he would marry her. It appears that the family members of the lady de facto complainant had arranged her marriage with another man and thereupon the petitioner had informed the proposed bridegroom about the affair between the petitioner and the lady de facto complainant and the marriage would not take place. Later, the petitioner had not showing inclination to marry her and out of the said frustration, she had cut her vein in an attempt to commit suicide on 19.9.2019 and had hospitalized. Annexure-A2 statement was then recorded by the Police from the lady de facto complainant, wherein she has inter alia stated that the family members have opposed the marriage proposal between the petitioner/ accused and the lady de facto complainant and that she has no complaint against anybody. The case of the petitioner is that he was all through standing by the promise to marry the lady de facto complainant. But, her family members have strictly opposed it and had brought another proposal and that even the lady victim has stated in her Annexure-A1 statement to the Police on 19.11.2019 that her family members have opposed the marriage proposal between the two and that she does not have any complaint against anyone, presumably thereby that she has no complaint against the petitioner etc.

(3.) The learned counsel for the petitioner would point out that a reading of the F.I.S would make it clear that if the alleged incidents narrated therein are broadly true, then it could have happened only on the basis of the consent between the parties and not otherwise and that therefore, none of the vital ingredients of the offence as per Section 375 of the IPC are not made out in this case. Further the learned counsel for the petitioner has pointed out the various rulings of the Apex Court and various High Courts including this Court, which have laid down the vital and substantial distinction between rape as per Section 375 of IPC and consensual sexual relationship, where a man and a woman continue to have sexual relationship for quite sometime, then it is very difficult to make out a case of rape and that the breach of promise to marry cannot be the basis to contend that the consent of the woman was obtained on the basis of misconception of facts as understood in Section 90 of the IPC etc.