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2013 DIGILAW 970 (KER)

Renjith Raveendran v. State of Kerala

2013-11-08

P.BHAVADASAN

body2013
ORDER : The petitioner, invoking the inherent jurisdiction of this court under Section 482 of the Code of Criminal Procedure, seeks to have Annexure 11 final report in Crime No.977 of 2011 of Gandhi Nagar Police Station taken cognizance of as C.P.4 of 2012 by Judicial Magistrate of First Class, Ettumanoor quashed. 2. The facts necessary for the disposal of this petition are as follows: The petitioner and the third respondent were classmates and at the relevant time, the petitioner was employed with HDFC Bank. The engagement ceremony between the petitioner and the third respondent was held on 16.10.2011 and the marriage was scheduled to be held on 29.1.2012. According to the petitioner, on 21.10.2011, he got a telephone call from the third respondent informing him that she had to convey certain urgent matters to him. She asked the petitioner to come near Ettumanoor temple. The petitioner went there and found the third respondent waiting for him. He also found that the third respondent was in the company of the fourth respondent. The third respondent is alleged to have disclosed that she was in deep love with the fourth respondent and she would like to marry him. Taken aback and shocked, the petitioner was unable to react immediately. Recovering soon, he expressed his anguish in having not disclosed this fact either to the parents of the third respondent or to the petitioner earlier which could have avoided the ceremony held on 16.10.2011. Shattered, the petitioner left the place. The petitioner came to understand later that the third respondent had eloped with the fourth respondent and stayed in a house at Thrissur. Finding that his daughter has not returned home on 21.10.2011, the second respondent, who is the father of the third respondent, laid a complaint before the police who registered crime under Section 57 of the Kerala Police Act for man missing as Crime No.955 of 2011. The statement given by the second respondent, based on which crime was registered, is produced as Annexure 2. Respondents 3 and 4 were located by the first respondent on 22.10.2011. The third respondent gave Annexure 3 statement to the police wherein she disclosed that she was in deep love with the fourth respondent and she had no intention to marry the petitioner. Respondents 3 and 4 were located by the first respondent on 22.10.2011. The third respondent gave Annexure 3 statement to the police wherein she disclosed that she was in deep love with the fourth respondent and she had no intention to marry the petitioner. She was later produced before the JFCM, Ettumanoor and Annexure 4 is the statement said to have been given by her to the Magistrate. 3. While things stood so, to the shock and surprise of the petitioner, since the second respondent was not interested in having his daughter married to the fourth respondent, he wanted the petitioner to marry his daughter. It is alleged that on 24.10.2011, the second respondent and the brother-in-law of the second respondent took the petitioner to the house of the brother-in-law of the second respondent and threatened him that he should marry the daughter of the second respondent. It is stated in the petition that the third respondent was also brought there and she and the petitioner were locked in the same room. However, the third respondent was firm that she would marry only the fourth respondent. Even though an attempt was made to have the marriage between the petitioner and the third respondent registered, it was failed due to technical reasons and the petitioner managed to escape. 4. Annoyed, infuriated and dejected, the second respondent hatched a plan and registered Crime No. 977 of 2011 for the offence under Section 376 of I.P.C. against the petitioner. He managed to have the third respondent to give a statement to the police that while the petitioner and the third respondent were studying for the degree course in K.E. College, Mannanam, they had fallen in love with each other and that on three occasions the third respondent was subjected to sexual intercourse against her will by the petitioner. The three instances were one in August, 2009, another in November, 2009 and the last in the year 2011 and all the three instances alleged to have been taken place inside the car of the petitioner on a public road. Annexure 5 is the relevant FIR. Though the petitioner was initially arrested by the police, he was let off. However, he was re-arrested on 29.10.2011 and was produced before the Magistrate on 31.10.2011 and he was released on bail on the same day. Annexure 5 is the relevant FIR. Though the petitioner was initially arrested by the police, he was let off. However, he was re-arrested on 29.10.2011 and was produced before the Magistrate on 31.10.2011 and he was released on bail on the same day. To the dismay of the petitioner, in the remand application filed by the police, he found that Section 377 of I.P.C. has also been incorporated. According to the petitioner, the second respondent, with ulterior motive, had got another crime registered as Crime No.1168 of 2011 under Section 365 and 376 of I.P.C. against the fourth respondent. The copy of the FIR is produced as Annexure 9. The petitioner had approached this Court for quashing the FIR in Crime No. 977 of 2011. While the case stood posted for instructions, it was submitted that final report has been filed and therefore, the petitioner withdrew his application for quashing the FIR with permission to take such steps as are available to him in law. 5. According to the petitioner, the third respondent has no consistent case and she goes on giving statement after statement to suit her will so as to please her father who is in the police force. Explanation offered for giving Annexures 3 and 4 by the third respondent cannot be accepted. According to the petitioner, the second respondent had knowledge about the relationship between his daughter and the fourth respondent and that would be evident from Annexure 2 FIS statement laid by him which led to the registration of Crime No. 955 of 2011 under Section 57 of the Kerala Police Act. The petitioner would allege that the story of rape and the subsequent registration of crime No. 977 of 2011 are with oblique motive and to force the petitioner to marry the third respondent. The petitioner would also point out that the fifth respondent is even more loyal than the king and he in his wisdom chose to add Section 377 of I.P.C. also. Nowhere in the statement given by the third respondent, she had a case of any such act having been committed by the petitioner which would attract the said provision. It is clear, according to the petitioner, that it was at the instance of the second respondent that the said provision was added. Nowhere in the statement given by the third respondent, she had a case of any such act having been committed by the petitioner which would attract the said provision. It is clear, according to the petitioner, that it was at the instance of the second respondent that the said provision was added. A perusal of the materials would clearly show that the proceedings instituted against the petitioner is repel in mala fides and is ill-motivated. It is inconceivable, according to the petitioner, that the third respondent would have been raped on three occasions in a car on a public road and that itself shows the hollowness of the case put forward by the third respondent. Alleging that the allegations are inherently improbable and are totally false as could be seen from the various Annexures, the petitioner would say that continuance of the proceedings as against him will amount to abuse of process of court and is only just and proper that this Court exercises its inherent powers under Section 482 of Cr.P.C. and put an end to the proceedings. 6. The second and third respondents have filed a counter affidavit. In fact the second respondent has filed an affidavit on behalf of the third respondent also. The engagement ceremony held on 16.10.2011 and the decision to have the marriage conducted on 29.1.2012 are admitted. However, it is pointed out that after the engagement ceremony was over, the family members of the petitioner expressed their displeasure regarding the dowry and that continued to exist even as the date of marriage approached. In the counter affidavit, it is specifically alleged that while things stood so, the petitioner and the fourth respondent conspired together and in furtherance of the conspiracy invited the third respondent on 21.10.2011 for a casual meeting at 10 a.m. near Ettumanooor Siva Temple. When the third respondent reached the place, the petitioner took the third respondent to a nearby shop and they had a glass of fruit juice. While they were taking the fruit juice, the petitioner called the fourth respondent over phone and soon thereafter the fourth respondent reached the place. When the third respondent reached the place, the petitioner took the third respondent to a nearby shop and they had a glass of fruit juice. While they were taking the fruit juice, the petitioner called the fourth respondent over phone and soon thereafter the fourth respondent reached the place. According to this respondent, as planned earlier by the petitioner and the fourth respondent, a quarrel was stage managed between the fourth respondent and the petitioner wherein the fourth respondent claimed that he and the third respondent were in deep love for over a year and the petitioner should back out of the marriage. This unexpected development made the third respondent upset, who shrieked and then it is contended that the petitioner pushed the third respondent aside and left her to the mercy of the fourth respondent and the petitioner left the place. Since this drama was staged in the public and since attention of shop keepers and the by-passers was attracted, the third respondent wanted to escape from the place and taking advantage of the situation, the fourth respondent offered to drop the third respondent in her house. Believing the fourth respondent, the third respondent got into the car. Instead of taking her to her home, he took her to Thrissur though the third respondent protested to the said act of the fourth respondent. It is also claimed that in the car, the third respondent tried to contact the petitioner, but he did not respond. The fourth respondent took the third respondent to a house at Irinjalakuda on 21.10.2011 and on that night, it is alleged that the fourth respondent brutally raped the third respondent twice. The next day morning, i.e., on 22.10.2011, the fourth respondent and the third respondent returned in a car arranged by one Mahesh Krishna, a Police Constable, who is a close friend of the fourth respondent. In the car, it is alleged that the fourth respondent threatened the third respondent with dire consequences if she revealed what had transpired between them and that he would do away with her. It was under those circumstances that Annexures 3 and 4 happened to be given by the third respondent. In the car, it is alleged that the fourth respondent threatened the third respondent with dire consequences if she revealed what had transpired between them and that he would do away with her. It was under those circumstances that Annexures 3 and 4 happened to be given by the third respondent. In Crime No.1168 of 2011 registered by the Ettumanoor Police, statement of the third respondent under Section 164 of Cr.P.C. was taken and there she had explained the circumstances under which Annexures 3 and 4 happened to be given. The third respondent therein had also stated that the petitioner and the third respondent had fallen in love while they were studying in degree course and promising to marry her she was forced to have sexual intercourse with the petitioner. It is also contended that the two crimes namely, Crime Nos. 977 of 2011 and 1168 of 2011 should be simultaneously tried. It is contended that there are no grounds made out to quash the proceedings. 7. Learned Senior Counsel appearing for the petitioner contended that the records are self explanatory and it can be seen that the third respondent has no consistent case. Referring to Annexure 2, learned Senior Counsel pointed out that it came into existence at a point of time when there was no dispute between the parties and it is clear from Annexure 2 that even the second respondent knew the relationship between respondents 3 and 4 and he in no less terms in Annexure 2 has indicated that in all probability his daughter must have gone with the fourth respondent. Learned Senior Counsel appearing for the petitioner also pointed out that the stand taken in the counter affidavit is one of conspiracy between the petitioner and the fourth respondent, but there is no corresponding offence shown in the final report. It is also significant to notice, according to the learned Senior Counsel, that the fourth respondent is not an accused in Crime No.977 of 2011 and if that be so, the story of conspiracy falls to the ground. It is inconceivable, according to the learned Senior Counsel, that on three occasions the third respondent could have been subjected to sexual intercourse in a car and that too in public places. It is inconceivable, according to the learned Senior Counsel, that on three occasions the third respondent could have been subjected to sexual intercourse in a car and that too in public places. The reasons given for Annexures 3 and 4 statements cannot be taken note of because that is clearly an after thought to get over the difficulties created by other documents. It is significant to notice, according to the learned Senior Counsel, that it was long after, that the second respondent thought it proper to have a complaint filed against the fourth respondent. According to the learned Senior Counsel, the facts indicate that the allegations against the petitioner by the third respondent are false and are only cooked up for the purpose of the case. Learned Senior Counsel also pointed out that if at all there was any physical relationship between the two, that was with the consent and volition of the third respondent though the petitioner categorically denies any such relationship. According to the learned Senior Counsel appearing for the petitioner, this is a typical instance of the abuse of process of court and the petitioner has been unnecessarily implicated and is now forced to face the ordeal of a trial. Learned counsel pointed out that this is a fit case where this Court should exercise its power under Section 482 of Cr.P.C. and put an end to the proceedings against the petitioner. 8. Learned counsel appearing for the respondents pointed out that it is not for this Court at this point of time to peruse the evidence that is now available on record and to assess its quality and worthiness. This Court could interfere at this stage only if it is shown that the materials produced along with the final report and the final report as such, taken together do not disclose any offence. The veracity of the allegations or the quality of evidence or the quantity of evidence are not matters to be gone into by this Court at this point of time nor is it competent for this Court to assess the merits and demerits of the materials collected during investigation by the police. May be that the third respondent has given inconsistent statements before various authorities. Those statements of the third respondent may be helpful to the petitioner when the third respondent is examined in the case. May be that the third respondent has given inconsistent statements before various authorities. Those statements of the third respondent may be helpful to the petitioner when the third respondent is examined in the case. It is too early to evaluate the probative value or the veracity of the statements given by the third respondent and that is to be done at the time of trial and not at this stage. It is not the function of this Court exercising its powers under Section 482 of Cr.P.C. at this point of time to probe into the details and to assess the various items of evidence to find out whether a conviction is possible. The test, according to the learned counsel, is to see whether on the evidence now available on record if stands uncontroverted, an offence is made out. If that test is applied, it can be seen that the claim for quashing the proceedings under Section 482 Cr.P.C. cannot succeed. 9. The petitioner has invoked the inherent jurisdiction of this Court to quash the final report and the consequent taking of cognizance by the JFCM, Ettumanoor as C.P.4 of 2012. True, it may look rather incredible that the petitioner had committed rape on the third respondent on three occasions made mention of earlier and that too in a car on a public road. It is contended on behalf of the petitioner that all that is stated in the statement made by the third respondent is that she was subjected to sexual intercourse by the petitioner promising to marry her. That, according to the learned Senior Counsel for the petitioner, is not sufficient to attract the offence of rape. Relying on the decision reported in Jose Thettayil v. Station House Officer ( 2013 (3) K.L.T. 552 ), it was contended that if at all there was any sexual intercourse, it was with the consent of the victim and no offence would lie. Reliance was also placed on the decision reported in Babu v. State of Kerala ( 2013 (2) KHC 526 ) and Uday v. State of Karnataka ( (2003) 4 SCC 46 ). 10. Reliance was also placed on the decision reported in Babu v. State of Kerala ( 2013 (2) KHC 526 ) and Uday v. State of Karnataka ( (2003) 4 SCC 46 ). 10. The contention of the petitioner appears to be that the inconsistent and contradictory versions given by the third respondent is a clear indication of the fact that she had little regard for truth and based on such materials it will be quite contrary to the interests of justice to ask the petitioner to face trial. 11. The third respondent does not disown Annexures 3 and 4. But she has offered an explanation regarding the circumstances under which those statements were made. It is true that the claim made by respondents 2 and 3 in the counter affidavit that there was a conspiracy hatched between the petitioner and the fourth respondent may not be as such acceptable as of now. It is significant to notice that when the second respondent laid complaint on finding his daughter missing, his definite belief was that his daughter must have been taken away by the fourth respondent. May be that the statement given by the third respondent subsequently to the learned Magistrate and to the police officer which forms material in Crime No. 977 of 2011 an after thought. One cannot also omit to note that there is no specific denial in the counter affidavit by the second and third respondent regarding the allegations of the petitioner that the petitioner had been forcibly taken by the second respondent and his brother-in-law. 12. Though the allegations made against the petitioner may look suspicious, can it be a ground to interfere at this stage and quash the final report and proceedings taken pursuant to thereon? This Court will be well justified in interfering in cases when it is convinced on materials that the proceedings amount to an abuse of process of court. At this stage all that is before this Court are a few statements given by various witnesses which would appear to be contradictory and inconsistent. As already noticed, the third respondent offered her explanation and the circumstances under which Annexures 3 and 4 were given by her. Her statements produced as Annexure R2(a) may be open to doubt. At this stage all that is before this Court are a few statements given by various witnesses which would appear to be contradictory and inconsistent. As already noticed, the third respondent offered her explanation and the circumstances under which Annexures 3 and 4 were given by her. Her statements produced as Annexure R2(a) may be open to doubt. But as rightly noticed by the learned counsel for the respondents, this Court may not be justified in probing into the evidentiary value of those statements or the consequences of the third respondent giving inconsistent statements. All that this Court at this point of time needs to ascertain is whether on the materials now available, the offences attributed to the petitioner are made out. There may be considerable force in the submission made by the learned Senior Counsel for the petitioner that the incorporation of Section 377 of I.P.C. is with oblique motive. There seems to be absolutely no material regarding that aspect. 13. The third respondent has given a statement to the Magistrate that the petitioner had sexually assaulted her without her consent and against her will. The question as to whether there is consent or not is a matter to be determined after trial and unlike in the decision reported in Jose Thettayil v. Station House Officer ( 2013 (3) KLT 552 ) it could not be said that on the very face of it consent can be inferred. Whether the allegations made by the third respondent against the petitioner are true or not or whether if at all there were any physical relationship between the petitioner and the third respondent, it was with the consent of the third respondent etc., are matters to be determined during trial. But at any rate, it is not to be gone into at this point of time. 14. It may be that the allegations now made against the petitioner may look suspicious. May be also that the implication of the petitioner may be as a result of an after thought. But it could not be said as of now that there are no materials based on which final report has been laid. 15. 14. It may be that the allegations now made against the petitioner may look suspicious. May be also that the implication of the petitioner may be as a result of an after thought. But it could not be said as of now that there are no materials based on which final report has been laid. 15. At any rate, it will not be proper for this Court to exercise its inherent jurisdiction under Section 482 of Cr.P.C. and quash the final report and the C.P. proceedings merely on the ground that the story put forward by the third respondent is suspicious. This petition is without merits and it is accordingly dismissed. However, the petitioner is at liberty to move the appropriate court seeking discharge.