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Sachu.P.Chandran vs State Of Kerala on 28 May, 2019

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941

Crl.MC.No. 1634 of 2019
TO QUASH THE POLICE CHARGE AND ALL FURTHER PROCEEDINGS IN
C.P.NO.5/2019 PENDING ON THE FILE OF JUDICIAL FIRST CLASS
MAGISTRATE COURT, THRIPUNITHURA

CRIME NO. 1185/2018 OF HILL PALACE POLICE STATION , ERNAKULAM

PETITIONER/ACCUSED:

SACHU.P.CHANDRAN
AGED 25 YEARS
S/O CHANDRAN, PUTHUKUDY HOUSE, KANIYAMPUZHA,
EROOR.P.O, THRIPUNITHURA.

BY ADV. SRI.S.NIRMAL KUMAR

RESPONDENTS/COMPLAINANT:

1 STATE OF KERALA
REPRESENTED BY PUBLILC PROSECUTOR,
HIGH COURT OF KERALA,ERNAKULAM.

2 VICTIM

BY ADV. SRI.SUJITH AJAYAN

SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR FOR R1,
SRI.SUJITH AJAYAN FOR R2

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.05.2019,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.1634 of 2019
2

ALEXANDER THOMAS, J.

Crl.M.C.No.1634 of 2019

Dated this the 28th day of May, 2019

ORDER

The petitioner has been arrayed as the sole accused in the

impugned Annexure-A3 FIR in Crime No.611/2018 of Kannamaly

Police Station, Ernakulam, which was registered on 13.07.2018, for

offences punishable under Secs.376, 312 420 of the SectionIPC on the basis

of the First Information Statement/complaint of the

2nd respondent/lady defacto complainant/victim. Later, the said crime

was transferred to Thripunithura Hill Palace Police Station, wherein it

was re-numbered as Crime No.1185/2018. Subsequently, the police

after due investigation has filed the impugned Annexure-A1 final

report/charge sheet in the said Crime No.1185/2018 of Thripunithura

Hill Palace Police Station, which has now led to the pendency of

committal proceedings, C.P.No.5/2019 on the file of the Judicial First

Class Magistrate Court, Thripunithura. The petitioner seeks

quashment of the impugned criminal proceedings mainly on the
Crl.M.C.No.1634 of 2019
3

ground that even going by admitted allegations of the

2nd respondent/lady defacto complainant in her First Information

Statement, etc., it can be seen that the alleged sexual relationship has

happened only on the basis of consent between the parties and that

even according to her, the parties were in love for about 10 years and

that they had into sexual relationship on quite a few occasions and it is

thereafter, that the petitioner had promised her that he would marry

her and that later he had breached his promise, etc.

2. Heard Sri.S.Nirmal Kumar, learned counsel appearing for

the petitioner/accused, Smt.Priya Shanavas, learned Public Prosecutor

appearing for 1st respondent-State and Sri.Sujith Ajayan, learned

counsel appearing for the 2nd respondent/lady defacto complainant.

3. The gist of the prosecution case is that the

petitioner/accused and the 2nd respondent/lady defacto complainant

were working under the same employer, viz., S.D.Lifestyle Glam Saloon

and Spa at Vyttila, Ernakulam and that they were in love for about

10 years and that that parties had entered into sexual relationship and

that later, the petitioner had promised her that he would marry her and

that he had also persuaded her to conduct medical termination of the

pregnancy, which arose out of the said sexual relationship, etc. and that
Crl.M.C.No.1634 of 2019
4

therefore, the petitioner has committed the abovesaid offences. The

2nd respondent has now filed Annexure-A2 affidavit dated 28.02.2019

stating that the said complaint was made by her out of the said

misunderstandings and that the parties had solved the dispute and that

she is no longer interested to pursue the impugned criminal

proceedings and that he has no objection in quashment of the

impugned criminal proceedings.

4. It is by now well established that grave and serious offences,

including those under Sec.376 (rape) of the SectionIPC cannot be the subject

matter of quashment of the impugned criminal proceedings on the

ground of settlement between the accused and the victim. SectionSee

Shimbhu v. State of Haryana [2014(13) SCC 318], SectionParbatbhai

Aahir v. State of Gujarat [2017 (9) SCC 641], SectionAnita Maria Dias

v. State of Maharashtra [2018 (3) SCC 290], SectionSebastian @ Solly

v. State of Kerala [2015(1) KLJ 384], etc. Therefore, the

submissions made by the petitioner/accused and the

2nd respondent/lady de facto complainant that the impugned criminal

proceedings, which mainly includes the offence of rape as per Sec.376

of the SectionIPC be quashed on the basis of settlement between the parties,

cannot be countenanced by this Court. The main sheet-anchor of the
Crl.M.C.No.1634 of 2019
5

case is now argued by Sri.S.Nirmal Kumar, learned Advocate appearing

for the petitioner/accused is that even going by the admitted

allegations of the prosecutrix in the prosecution materials, it can be

seen that the alleged sexual relationship between the parties would

have occurred only on the basis of consensus and volition of the parties

and that even according to her, the parties were in love for quite some

time and later they were working in the same place and that they had

sexual relationship and subsequently that too that the petitioner had

promised her that he would marry her, which was breached by him, etc.

and that he had persuaded her to conduct medical termination of

pregnancy, which arose out of the said relationship. To appreciate this

contention, it will be more pertinent to refer to the entire entirety of the

First Information Statement given by the 2nd respondent/lady defacto

complainant before the police, which triggered the instant

Annexure-A3 Crime No.611/2018 of Kannammaly Police Station

(which was later transferred to the Hill Palace Police Station, wherein it

was re-numbered as the instant Crime No.1185/2018). The said FI

Statement, which has been produced as Annexure-A3 along with

Crl.M.A.No.4/2019, filed in the above Crl.M.C., reads as follows:
Crl.M.C.No.1634 of 2019
6

“CWI ആവലലതതകലരതയടട പഥമ വതവര ടമലഴത (FIS )

കമളങത വതല ജ, കണകടവ കരയതൽ, പനയൽ വ ടതൽ, ലജലസഫ മകൾ 23 വയസള കർമല
ജതസന ഇന (13.07.18) വവകതട 7.30 മണതക കണമലലത ല.ലല സ ല/ഷനതൽ ഹലജരലയത ലരണകലയലട
.റയന ടമലഴത, (829536749)

ഞലൻ ഒര വർഷലതലളമലയത വവറതലയതലള S.D. Life Style Glam Saloon
and Spa കമനതയതൽ Customer Relationship Executive ആയത ലജലലത ട;യ വരന.
ഞലൻ എരരള സച .ത. ;നൻ എന .യനമലയത 10 വർഷലതലളമലയത ഇഷതതലലയതരന. .തന ട സച
എടE വ ടതൽ വന അചലനലട ഞങളടട ബനടതപറത സLസലരതകകയL, എടന വതവലഹL ട;യലതലളലടമന
സച വലഗലനL ട;യകയL ട;യ. ഞലൻ സചവതലനലടടലപL മനലറതലL മറL ല.ലയതടണ. 2016 ടമയമലസL
ഏലതല ഒര ദതവസL സച എടന ഞലൻ തലമസതചതരന ലഹല/ലതൽ നതനL കടതടകലണല.ലകകയL, സചവതടE
വ ടതൽ ടവച ഞങൾ ശലര രതക ബനതതൽ ഏർടപടകയL ട;യ. .തന ട ഞങൾ വയനലടതൽ ടർ ല.ലകകയL
ഞങളടട ഫണതടE ബനവതടE വ ടതൽ മന ദതവസL തലമസതകകയL അവതടട ടവചL ബനതതൽ ഏർടപടകയL
ട;യ. 2017 ൽ ഞലൻ ഗർഭതണതയലകകയL, സചവതടE നതർബനപകലരL മടലല_രതയതലള സLഗ ത
ലഹലസതറലതൽ അലബലർഷൻ ട;യകയL ട;യ. .തന ട ഞങൾ സLസലരതകകയL, എടന സച വതവലഹL
ട;യടമന ഉറപ നൽകകയL ട;യ. 2018 മലർച മലസലതലടട സച എടന ഒഴതവലകലൻ തടങത. എടന
ലഫലൺ ട;യകലയല, കലണകലയല ഒനL ട;യതരനത . .തന ട എനതകL സLശയL ലതലനത. സചവതലനലട
സLസലരതകണL എന .റഞ .തന ട ഏപതൽ മലസL Copt Avenue walkway യതൽ എതകയL
സചവമലയത സLസലരതചലപലൾ സചവതന എടന വതവലഹL കഴതകലൻ തലലരjമതട നL, എനതക ലവണത
കലതതരതലകണ എനL .റഞ. എടE .പല സചവതടന വതളതച സLസലരതകകയL ട;യ. അലപലൾ സചവതടE
.പടയ വതളതചലപലൾ അവരL എതതർപ .റഞ. എടE കയതൽ നതനL .ലലപലഴലയത ഒര ലകതതലധതകL ര.
വലങതയതട എടന വതവലഹL ട;യടമന പത കയതലലണ ഞലൻ ഇതതടന ലL സമതതചത.”

5. The meticulous perusal and analysis of the contents of the

said FI Statement dated 13.07.2018 would reveal that since past one

year, she has been working in “S.D Lifestyle Glam Saloon and

Spa”, Vytilla, Ernakulam as Customer Relationship Executive and that

she has known the petitioner/accused for the last more than 10 years

and that they were having a love affair and that families of both parties

did not like the relationship, as they belong to different religion and

that later, the petitioner had come to her house and talk to her father

and had promised to marry her. That the petitioner and the
Crl.M.C.No.1634 of 2019
7

2nd respondent had gone to Munnar and various other places in May,

2016 and that the petitioner had taken her from her hostel and later

they had sexual relationship in his house and they had also gone to

Wayanad and had stayed in the house of a relative of a friend for three

days and they had sexual relationship. In 2017, she had become

pregnant and that due to the persuasion of the petitioner, she had

undergone medical termination of pregnancy in a hospital at

Mattancherry. That later, the petitioner had assured her that he would

marry her and subsequently from March, 2018 onwards, the petitioner

started neglecting her and stopped his phone conversations and which

raised suspicion in her and she later had detailed discussion with him

and the petitioner reveals that he is no longer interested to marry her

and that she need not wait for him any further and that she had

informed her family members about this and her father had talked to

the petitioner and the petitioner’s father had also opposed the marriage

proposal and that the petitioner has received about Rs.1 lakh from her

on various occasions and that she had given his money on the

expectation that he would marry her, etc.

6. It is by now well established that there is a fine and

substantial distinction between rape as understood in Sec.376 of the
Crl.M.C.No.1634 of 2019
8

SectionIPC and consensual sexual relationship between parties and this has

been the subject matter of detailed consideration of various judgments

of the Apex Court and various High Courts, including this Court. The

said issue is the subject matter of a catena of rulings of the Apex Court

in decisions as in SectionUday v. State of Karnataka [(2003) 4 SCC 46]

and SectionDeelip Singh @ Dilip Kumar v. State of Bihar [(2005) 1

SCC 88], where it has been held that where the woman has voluntarily

and consciously consented to have a sexual relationship with the

accused, then her consent cannot be said to be in consequence of any

misconception of fact as envisaged in Sec.90 of the SectionIPC. SectionIn

Dr.Dhruvaram Murlidhar Sonar v. The State of

Maharashtra Ors. [2019 (1) SCALE 64), the Apex Court has again

highlighted about the substantial distinction between rape and

consensual sexual relationship. SectionIn Shivshankar @ Shiva v. State

of Karnataka another (judgment dated 06.04.2018 of the Apex

Court in Crl.Appeal No.504/2018), it has been held that be rather

difficult to hold sexual intercourse in the course of a relationship which

was continued for several years is ‘rape’, especially in the face of the

complainant’s own allegation that they lived together. In

Dhruvaram Murlidhar Sonar’s case (supra), the Apex Court had
Crl.M.C.No.1634 of 2019
9

elucidated the principles in that regard and it has been laid down the

clear distinction between rape and consensual sexual relationship and

that the acknowledged consensual physical relationship between the

parties would not constitute an offence under Sec.376 of the SectionIPC. It has

also been held that breach of promise to marry in such cases will not by

itself lead to a scenario, whereby it can be held that the consent of the

woman to undergo sexual relationship was obtained on the basis of

misconception of fact as understood in Sec.90 of the SectionIPC.

7. In the instant case, the facts very glaring and clear. The

parties were in love affair since younger days and for more than 10

years even at the time of submission of the First Information Statement

on 13.07.2018 as can be seen from Annexure-A3. It appears that both of

them are working in the same place and they had indulgent sexual

relationship, which can be only on the basis of consent and volition.

Though there is an averment in the first part of Annexure-A3 that the

petitioner had given a promise to her father that he will marry her, the

entire narration of the sequence will make it clear that they are having a

love affair and that both them were gone to Munnar and some time in

May, 2016 and had sexual relationship and had gone to Wayanad and

that stayed there three days and had sexual relationship and that she
Crl.M.C.No.1634 of 2019
10

later became pregnant in the year 2017 and had undergone medical

termination of pregnancy in a hospital at Mattancherry, Ernakulam on

the persuasion of the petitioner. That later, the petitioner had

promised that he would marry her. Subsequently, from March, 2018

onwards the petitioner backtracked and started neglecting her. It is

also stated at the end of the FIS that the petitioner has received about

Rs.1 lakh from her and that he had given that money to him only

because of the love affair and he was promised to marry her. As far as

from the abovesaid narration of the facts had disclosed from the

admitted allegations in Annexure-A3 FIS, it can be seen that the alleged

sexual relationship between the parties would have taken place only on

the basis of consent and volition of the parties. Even the promise to

marry is said to have been given by the petitioner to the 2 nd

respondent/lady de facto complainant much later after she had

undergone the medical termination of pregnancy.

8. In the light of these aspects, it is clear like the blue sky that

the alleged incidents would have taken place only on the basis of

consent between the parties. In the light of the abovesaid legal

principles laid down by the Apex Court and various High Courts as

mentioned in hereinabove, the vital ingredients of forcible sexual
Crl.M.C.No.1634 of 2019
11

intercourse for the offence of rape as understood in Sec.376, are not

attracted and as the incidents occurred or happened only on the basis

of consent of the parties. Of course, there is an allegation that the

petitioner had persuaded her to undergo medical termination of

pregnancy and on that ground, the prosecution has also included the

offence as per Sec.312 of the SectionIPC., which reads as follows:

“312. Causing miscarriage – Whoever voluntarily causes a
woman with child to miscarry, shall, if any miscarriage be not
caused in good faith for the purpose of saving the life of the
woman, be punished with imprisonment of either description for
a term which may extend to three years, or with fine, or with
both; and, if the woman be quick with child, shall be punished
with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to fine.”

9. The statement of one Dr.Geetha S.Prabhu, Gynecologist,

who had conducted the medical termination of pregnancy in the

Mattancherry Hospital, taken by the Investigating Officer in this crime

on 28.07.2018 has been given on pages 26 and 27 of Annexure-A1 final

report/charge sheet. That the 2nd respondent and the petitioner had

approached her stating that both of them are married and that the

2nd respondent informed that she wants to conduct MTP as she is

interested to search some employment abroad and that the doctor

conducted a blood test and she had also conducted a scan and it is

found that her continued pregnancy would be detrimental to her health
Crl.M.C.No.1634 of 2019
12

and that she was asked to come for a scanning on 24.06.2016 and that

after the scanning it was found that the pregnancy was of four weeks

and five days gestation period and that it was not live foetus and it is

found to be in a condition of one sac and that thereupon the doctor had

informed the 2nd respondent that her consent is required and the

consent papers were signed and thereafter the said doctor had given

tablets to the 2nd respondent for effecting the MTP and next medical

review was conducted on 05.07.2016, which reveal that the pregnancy

is negative. Further that she had also given the medical details about

the pregnancy and had stated that the continued pregnancy would have

been detrimental to the health of the 2nd respondent and it was with the

consent of the 2nd respondent that the MTP was done. The abovesaid

statement of the Gynecologist has given on pages 26 27 of

Annexure-A1 final report/charge sheet is the admitted materials of the

prosecution, therein the specific case of the charge witness is that the

scanning had revealed that it was not live foetus and that the

continuation of pregnancy will be detrimental to the her health and

that therefore the MTP was advised and it was in the full consent and

volition of the 2nd respondent that the MTP was conducted by the

doctor, etc. In the light of these aspects, it cannot be said that any of
Crl.M.C.No.1634 of 2019
13

the vital ingredients of Sec.312 of the SectionIPC are made out in the facts and

circumstances of the case.

10. There is yet another allegation that the 2 nd respondent had

given about Rs.1 lakh to the petitioner and that she had given the said

amount on the latter’s promise that he would marry her, etc. It is in the

light of these aspects, the prosecution has included offence under

Sec.420 of the SectionIPC. Going by the admitted prosecution materials, no

strong case to prove the basic aspect that the petitioner had dishonest

and fraudulent intention even right to the commencement of the entire

transaction is not evident. Moreover, the said offence is a

compoundable offence as per Sec.320 of the SectionCr.P.C. Though the

settlement arrived at between the parties cannot be of any avail as far

as the offence as per Sec.376 of the SectionIPC is concerned, the said

settlement certainly can be pressed into service for the offence of

Sec.420 of the SectionIPC. In the cumulative light of all these aspects as it

emerges on the totality of the facts and circumstances of the case, this

Court is of the considered view that the impugned criminal proceedings

are liable to be quashed as the vital offences are not made out and

moreover, any further continuation of impugned criminal proceedings

would be a futility and therefore, wastage of precious time of the police
Crl.M.C.No.1634 of 2019
14

investigation machinery, the prosecution machinery as well as the

judicial fora. So the impugned criminal proceedings deserve to be

interdicted by exercise of the inherent powers conferred under Sec.482

of the Cr.P.C.

11. In the light of these aspects, it is ordered that the impugned

Annexure-A1 final report/charge sheet filed in Crime No.1185/2018 of

Tripunithura Hill Palace Police Station, which has led to the institution

of committal proceedings in C.P.No.5/2019 on the file of the Judicial

First Class Magistrate Court, Tripunithura as against the

petitioner/accused and all further proceedings taken in pursuance

thereof, will stand quashed. The petitioner will forward certified copy

of this order to the Investigating Officer concerned and the abovesaid

trial court concerned. Office of the Advocate General will forward a

certified copy of this order to the Investigating Officer concerned, for

necessary information.

With these observations and directions, the above Crl.M.C will

stand finally disposed of.

Sd/-

ALEXANDER THOMAS
JUDGE
vgd
Crl.M.C.No.1634 of 2019
15

APPENDIX
PETITIONER’S/S EXHIBITS:

ANNEXURE A1 CERTIFIED COPY OF THE CHARGE SHEET

ANNEXURE A2 AFFIDAVIT FILED BY THE DEFACTO
COMPLAINANT.

ANNEXURE A3 FIRST INFORMATION STATEMENT OF DE FACTO
COMPLAINANT

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