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2018 DIGILAW 351 (KER)

Sanil Kumar S/o Gamaliyel v. State of Kerala

2018-04-13

SUNIL THOMAS

body2018
ORDER : 1. The sole accused in Crime No. 1220 of 2013 dated 07.10.2013 of Sreekaryam Police Station for offences punishable under sections 376, 377, 420, 496 and 506(2) of the Indian Penal Code is the petitioner herein. 2. It was alleged by the second respondent/defacto complainant that the accused had by paper publication invited matrimonial proposals from suitable brides for him. He represented to be a widower. It was published in a newspaper on 09.06.2013. Second respondent allegedly responded and thereafter, both sides decided to proceed with the marriage. It is stated that the petitioner herein was a Christian. However, he offered to perform the rituals of a marriage by tying a thali in front of a temple on 11.07.2013. Thereafter, he took her to a room and entered into physical relationship, making her believe that he has married her legally. He also committed unnatural offence on her. Thereafter, he abandoned her alleging that, he had not legally married her and his intention was only to satisfy his lust. She laid a complaint alleging that, he cheated and raped on the basis of a false promise to marry. Ultimately, crime was registered and after investigation, final report was laid on 30.07.2016. 3. Petitioner has approached this Court contending that he has not committed any offence as alleged, that, only after living together for some time, petitioner herein came to know that, respondent had married on few occasions earlier and that, her last marriage was subsisting. Hence, he could not perform a legal marriage. It was also stated that the physical relationship, if any, between the parties was only consensual. It was further stated that, after realizing that the complaint was not sustainable, the parties have resolved their dispute among themselves and Crl. M.C. was filed to quash the proceedings. 4. Petitioner relied on Annexure-B affidavit executed by the second respondent reiterating the settlement. Petitioner herein and the learned counsel for the second respondent relied on Annexure-B affidavit and affirmed that the matter has been settled between the parties. Learned counsel for the second respondent submitted that, she has no objection in quashing the proceedings. Learned Public Prosecutor on instructions submitted that the disputes have been resolved and the defacto complainant has given a statement reiterating the settlement. 5. Learned counsel for the second respondent submitted that, she has no objection in quashing the proceedings. Learned Public Prosecutor on instructions submitted that the disputes have been resolved and the defacto complainant has given a statement reiterating the settlement. 5. Since the allegations were serious, this Court was not inclined to quash the criminal proceedings on the basis of a settlement between the parties. Accordingly, parties were directed to argue on merits. 6. Learned counsel for the petitioner vehemently contended that the petitioner herein was earlier married and his wife had died of blood cancer. He contended that the allegation that, he committed rape on defacto complainant was absolutely false. In fact, in the paper publication, he had disclosed that, he was a widower and had invited suitable alliances. It was stated that the second respondent responded to the offer. However, it was represented that she was married once and that, she was living separated from the husband. On an assurance that the marriage did not exist, they lived together for a couple of days. He has not offered to marry her, in the meanwhile. It was later understood that, she had entered into several matrimonial relationships earlier and that, her last marriage was subsisting. It was stated that, he questioned her and she abandoned him. Thereafter, a false complaint was laid to spite him and to prevent him from marrying any other person. 7. In the affidavit filed by the defacto complainant, she had admitted that, she wanted to marry the petitioner herein. It was also asserted by her that, there was some disputes with the petitioner herein and she had no intention to spite him. The complaint was laid by her under the influence of her mother. She has stated that they did not have any physical relationship without her consent. She also asserted that other proposals are being offered and she wants to settle down after a lawful marriage. Hence, she clarified that, she has no objection in quashing the criminal proceedings. Learned Public Prosecutor, on the basis of the revealed facts, opposed the applications. 8. The above averments in the affidavit clearly show that the physical relationship was consensual, contrary to the contention set up in the complaint. Petitioner herein had filed I.A. No. 2875 of 2018 and had produced Annexure-C to E documents. Learned Public Prosecutor, on the basis of the revealed facts, opposed the applications. 8. The above averments in the affidavit clearly show that the physical relationship was consensual, contrary to the contention set up in the complaint. Petitioner herein had filed I.A. No. 2875 of 2018 and had produced Annexure-C to E documents. Annexure-C is the FIR in Crime No. 1655 of 2017 of Sreekaryam police station for offence punishable under section 376 IPC, against one Manoj. The defacto complainant therein is the second respondent in the present Crl. M.C. It was alleged by the defacto complainant in Crime No. 1655 of 2017 that the defacto complainant was married earlier and was separated from her husband. Pursuant to the paper publication inviting marriage proposals by the said Manoj, she had responded to his request and he offered to marry her. They started contacting each other. He offered to visit her, at her house. On 31.10.2017 at 5 a.m. Manoj allegedly came to her house. When they had discussion inside the house, Manoj wanted to see the property offered as dowry. Hence, defacto complainant allegedly took him to the nearby house. After entering the house, he allegedly locked the door from inside and raped her. It was alleged that, he committed unnatural offences also on her. Thereafter, he resiled from the promise to marry and hence, complaint was laid on 21.11.2016. Prima-facie, allegations in the FIR is exactly similar to the allegations which she had raised in Crime No. 1220 of 2013 also. 9. Annexure-D is a complaint dated 19.11.2014 submitted by the defacto complainant herein to the Human Rights Commission. It was against the Circle Inspector of Police, Medical College Hospital Police Station who was the investigating officer in Crime No. 1220 of 2013. She alleged in that complaint that, someday in March 2014, she had gone to the above CI to enquire about the progress in Crime No. 1220 of 2013. While she was sitting in the CI's office, he suddenly pressed her breast and made sexually coloured comments. She allegedly escaped from the office. She claimed that, she had laid a complaint to the Commissioner of Police, it was enquired by policemen who allegedly recorded her statement and made her withdraw the complaint. It was further alleged in her complaint that, on 12.05.2014, she went to the same CI to conduct further enquiry. She allegedly escaped from the office. She claimed that, she had laid a complaint to the Commissioner of Police, it was enquired by policemen who allegedly recorded her statement and made her withdraw the complaint. It was further alleged in her complaint that, on 12.05.2014, she went to the same CI to conduct further enquiry. While so, he repeated the same act, which he had done on the earlier occasion and committed sexual acts on himself, in her presence. She escaped from the office and allegedly laid complaints to various authorities. Since no action was taken, she is claimed to have moved the State Human Rights Commission. 10. Annexure-E is the report submitted by the Superintendent of Police of the Women's Cell of Thiruvananthapuram after conducting an enquiry into the allegations in Annexure-D. It was stated that, the complainant had entered into 5 marriages earlier, including one with the petitioner herein. Enquiry revealed that, an incident as alleged by her in Annexure-D had not happened. It was stated that, the very allegation that, CI initially misbehaved and even after the complaint, she went to the same CI alone itself was highly doubtful. It was also asserted that, enquiry revealed that the mother of the complainant was mentally ill and was under the treatment of a doctor of Cosmopolitan Hospital. It was reported that the mother and daughter were in the habit of lodging frivolous complaints against the former husband's of the defacto complainant as well as against the neighbours. 11. As mentioned earlier, the allegations in Crime No. 1220 of 2013 and that of Annexure-D complaint are exactly similar. This itself is sufficient to cast doubt about the genuineness of allegations in Crime No. 1220 of 2013. This is reinforced by the fact that, she had now come forward stating that, she has no grievance against the petitioner herein. She had even gone to the extent of raising wild allegations against the investigating officer also. Evidently, though she claimed that, she had complained to the police regarding the incident involving a CI, she did not pursue that complaint later. Regarding the second incident, which allegedly happened on 12.05.2014, the complaint was laid only on 19.11.2014. There was huge delay in lodging the complaint. 12. The evaluation of the above facts clearly show that the allegations against the petitioner under section 376 IPC is prima-facie not sustainable. Regarding the second incident, which allegedly happened on 12.05.2014, the complaint was laid only on 19.11.2014. There was huge delay in lodging the complaint. 12. The evaluation of the above facts clearly show that the allegations against the petitioner under section 376 IPC is prima-facie not sustainable. Since her earlier marriage was subsisting, she could not have legitimately expected to have entered into a legal marriage with the petitioner. Hence, her allegation that the petitioner herein made a promise to marry and had physical relationship with her is not legally also sustainable. It is also admitted that, both parties lived together voluntarily. They had also entered into physical relationship, which in the above circumstance, can only be treated as a consensual physical relationship between two persons who had attained the age of majority. She has now admitted that, she has laid a false complaint at the instance of her mother. 13. Her conduct is clear from Annexure-C complaint also. The entire facts beyond doubt shows that the allegation of rape raised by her in Crime No. 1220 of 2013 is nothing but, patent lie. It is clear that she has initiated criminal proceedings based on a false allegation with ulterior motive. The criminal case is liable to be quashed. Evidently, the case is liable to be quashed on merits also. 14. The offence alleged under section 376 IPC by a victim is always treated by the courts seriously as an offence against the society. It is also to be noted that a person can be convicted on the basis of the sole testimony of the victim, if it is found acceptable by the trial court. That being a legal position, a false allegation of rape should also be equally treated with seriousness and should be dealt with sternly. Since the petitioner herein has a propensity to raise any wild allegation against any person, this is a matter, which needs to be investigated and the conduct of the second respondent to be investigated to ascertain whether she, by lodging a false complaint, has committed any of the offence punishable under the IPC. The matter needs to be investigated by a higher official. 15. Hence, Crl. M.C. is liable to be allowed quashing all further proceedings. The matter needs to be investigated by a higher official. 15. Hence, Crl. M.C. is liable to be allowed quashing all further proceedings. The copy of this judgment will be forwarded to the District Police Chief with a copy to the Inspector General of Police in charge of the Thiruvananthapuram district to authorize an officer in the grade of Dy. S.P. to ascertain the entire circumstances leading to the present crime and to register FIR against the second respondent herein, if any offence is made out. This is without prejudice to the right of the petitioner herein to proceed against the second respondent seeking his remedies, if any, available to him including damages for false prosecution. 16. In the result, Crl. M.C. is allowed. The copies of this order shall be forwarded to the District Police Chief, Thiruvananthapuram and Inspector General of Police in charge of Thiruvananthapuram district, for necessary action at their level as expeditiously as possible.