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Sree Prasad vs State Of Kerala on 15 October, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

MONDAY ,THE 15TH DAY OF OCTOBER 2018 / 23RD ASWINA, 1940

Crl.MC.No. 5675 of 2018

AGAINST THE ORDER/JUDGMENT IN CP 12/2017 of JMFC – VIII, ERNAKULAM

CRIME NO. 1184/2016 OF Kadavanthra Police Station , Ernakulam

PETITIONER/ACCUSED:

SREE PRASAD,
AGED 50 YEARS,
S/O.SUDHAKARAN,
UTHRADAM HOUSE,
TC. 41/1850(MRA-230),
KURYATHI WARD,
MANACAUD VILLAGE,
THIRUAVANANTHAPURAM

BY ADVS.
SRI.D.KISHORE
SMT.MEERA GOPINATH
SMT.MINI GOPINATH

RESPONDENT/STATE, COMPLAINANT AND DEFACTO COMPLAINANT (VICTIM):
STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM 682031

THE CIRCLE INSPECTOR OF POLICE
ERNAKULAM CENTRAL POLICE STATION,
ERNAKULAM 682031

VICTIM
Crl.M.C.No.5675/2018 2

BY ADV. SRI.R.B.RAJESH

OTHER PRESENT:
PP.SRI. T.R. RENJITH

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.10.2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

O R D E R

The petitioner herein is facing trial in CP No.12/2017 of JFMC-VIII,

Ernakulam arising from Crime No.1184/2016 of Kadavanthra police

station for offences punishable under section 376 IPC read with section

55 (E) of the IT Act.

2. The third respondent defacto complainant alleged that, the

petitioner herein, promising to arrange job abroad and also to take care

of educational expenses of her daughter, had physical relationship with

her during the period from 2007 to 2016. Thereafter, without arranging

the job, he retracted from the promise and thereby committed the

offence of rape. Pursuant to FIS laid by the defacto complainant, crime

was registered and after investigation, final report was laid.

3. Pending the proceedings, the parties are stated to have resolved

their disputes. To substantiate their settlement, the petitioner relied on

Annexure-II affidavit stated to be affirmed by the third respondent.

Learned counsel for the third respondent acknowledged the due execution
Crl.M.C.No.5675/2018 3

of the above affidavit and also submitted that, she does not propose to

pursue the criminal proceedings.

4. Learned Public Prosecutor also submitted that the parties have

settled their disputes and it has been communicated to the investigating

agency.

5. Since the allegation is one under section 376 IPC, this court was

not inclined to quash the criminal proceedings on consent. Learned

counsel for the third respondent chose to argue the matter on merits.

6. Learned counsel for the petitioner invited my attention to the

statement given by the defacto complainant. She had asserted that, both

the parties were married and leading separate matrimonial relation, They

got acquainted each other and were maintaining good family relationship.

The 3rd respondent wanted to go to Gulf to start beauty parlor. The

petitioner herein allegedly promised to help her. On the basis of the above

promise and also assurance to maintain children, he used to take her to

his flat, where they had physical relationship. It was also stated by the

third respondent that, she had financial transaction with the petitioner

also. Thereafter, they fell apart which led to the registration of crime.

7. Crux of the allegation is that, the petitioner herein made promise

and had physical relationship with the defacto complainant. Thereafter,

by not complying with the promise, he committed the offence.

Essentially, contention is based on a premise that her consent was

obtained on the basis of false promise which amounts to misconception of
Crl.M.C.No.5675/2018 4

facts and consequently the consent for rape was obtained on the basis of

misconception of facts as contemplated under section 90 IPC. Learned

counsel for the petitioner points out that, the facts narrated disclose that

they had voluntarily entered into the physical relationship. Even

according to the defacto complainant, though certain promises were

made, the petitioner herein allegedly paid some amounts towards

educational expenses of the daughter. Even assuming that, he could not

help the defacto complainant to set up a business abroad that itself

cannot be considered as a false promise . It was pointed out that even in

the complaint 3rd respondent had not alleged that, promises made by the

petitioner were false from the very inception and consent was obtained on

the basis of a false promise.

8. Learned counsel for the petitioner invited my attention to the

decision reported in Uday v. Statte of Karnataka ((2003) 4 Supreme

Court Cases 46), wherein the court had held that for the application of

section 90 IPC, it must be shown that consent was given under

misconception of facts and it must be proved that the person who

obtained the consent knew or had reason to believe that the consent was

given in consequence of such misconception. Both the ingredients are

absent in the present case. Further, long cohabitation spanning several

years itself militates against the case of the petitioner that the permission

was obtained on the basis of wrong promise to marry.

9. In Deepak Gulati v. State of Haryana ( 2013) (2) KLT
Crl.M.C.No.5675/2018 5

762(SC), the Supreme Court had held that, failure to keep promise with

respect to future uncertain dates due to reason beyond that are not clear

from the evidence available does not always amounts to misconception of

facts. This principle was reiterated by the Division Bench of this Court in

Babu v. State of Kerala (2013 (2) KLT 574) and Jinu Thomas v. State

of Kerala and Others (2018 (3) KHC 263).

10. In Annexure – II affidavit, the third respondent has asserted

that physical relationship was consensual. Having considered the above

facts, I am inclined to hold that allegation of rape is not discernible from

the facts disclosed and having regard to that there is no chance of

successful prosecution of the petitioner. Hence, no purpose will be served

by prosecuting the petitioner herein. Criminal proceeding is liable to be

given quietus.

Accordingly, Crl.M.C.is allowed. All further proceedings pursuant to

Crime No.1184/2016 of Kadavanthra Police station pending as CP No.

12/2017 of the Judicial First Class Magistrate Court – VIII, stand quashed.

Sd/-

SUNIL THOMAS

dpk JUDGE
Crl.M.C.No.5675/2018 6

APPENDIX
PETITIONER’S/S EXHIBITS:

ANNEXURE 1 TRUE COPY OF THE FINAL REPORT IN CRIME
NO.1184/2016 OF KADAVANTHRA POLICE
STATION.

ANNEXURE 2 TRUE COPY OF THE AFFIDAVIT DATED 9.8.2018
EXECUTED BY THE 3RD RESPONDENT BEFORE
NOTARY PUBLIC.

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