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Victim vs State Of Kerala on 16 November, 2018

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940

Crl.MC.No. 2010 of 2018

AGAINST THE ORDER/JUDGMENT IN CRMC 101/2018 of D.C. SESSIONS
COURT,KOLLAM DATED 09-02-2018

CRIME NO. 25/2018 OF Sooranadu Police Station , Kollam

PETITIONER/DEFACTO COMPLAINANT:

VICTIM
….

BY ADV. SRI.SHARAN SHAHIER

RESPONDENT/DEFACTO COMPLAINANT:
1 STATE OF KERALA
REP. BY THE SUB INSPECTOR OF POLICE, SOORNAD POLICE
STATION, KOLLAM, THROUGH THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM-682031.

2 ARUN ARAVIND,
AGED 27 YEARS, S/O.ARAVINDKSHAN PILLAI,KOCHUKOYIPURATHU
KIZHAKKATHIL, ERAVICHIRA EAST, SOORNAD SOUTH, KOLLAM
DISTRICT-690522.

BY ADVS.
SRI.R.ANIL
SRI.B.RAMAN PILLAI (SR.)
SRI.E.VIJIN KARTHIK
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.THOMAS SABU VADAKEKUT

OTHER PRESENT:
PP. SRI. RAMESH CHAND

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.9.2018,
ALONG WITH Crl.MC.2973/2018, THE COURT ON 16/11/2018 PASSED THE
FOLLOWING:
Crl.M.C.No.2010 2973/2018 2

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

THE HONOURABLE MR. JUSTICE SUNIL THOMAS

FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940

Crl.MC.No. 2973 of 2018

AGAINST THE ORDER/JUDGMENT IN CRMC 101/2018 of D.C. SESSIONS
COURT,KOLLAM DATED 09-02-2018

AGAINST THE ORDER/JUDGMENT IN CMP 21/2018 of J.M.F.C., SASTHAMCOTTA

CRIME NO. 25/2018 OF Sooranadu Police Station , Kollam

PETITIONER/ACCUSED:

ARUN ARAVIND,
AGED 27 YEARS, S/O.ARAVINDAKASHAN PILLAI,
KOCHUKOYIPURATHU KIZHAKKATHIL, ERAVICHIRA EAST,
SOORANADU SOUTH, KOLLAM DISTRICT, PIN-690 522.

BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.E.VIJIN KARTHIK
SRI.M.SUNILKUMAR
SRI.R.ANIL
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.THOMAS SABU VADAKEKUT

RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM-682 031.

2 VICTIM.

BY ADV. SRI.SHARAN SHAHIER

THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.9.2018,
ALONG WITH Crl.MC.2010/2018, THE COURT ON 16/11/2018 PASSED THE
FOLLOWING:
Crl.M.C.No.2010 2973/2018 3

O R D E R

[ Crl.MC 2010/2018 Crl.MC.2973/2018 ]

Crl.M.C. 2970/2018 is filed by the accused, who is facing

prosecution in Crime No.25/2018 of Sooranadu Police station for

offences punishable under section 376 (2) (n) IPC.

2. The second respondent is the defacto complainant. She laid

CMP No.2/2018 before JFMC, Sasthamkotta, alleging that, the

petitioner herein promised to marry her and, on the basis of the above

promise, sexually abused her. Later, he retracted from the promise.

According to her, accused got acquaintanted with the defacto

complainant in 2014. Both fell in love and the accused herein promised

to marry her. Some time in July 2016, she was invited to Delhi where

the accused was working as pilot in airlines. After dinner she was

given fruit juice and after consuming it, she fell asleep. When she

woke up, it was found that the accused had raped her. The petitioner

assured that, it was done by him to ensure that she will not leave the

accused.

3. Thereafter, the accused started delaying the marriage by

stating one reason or other. They stayed thereafter in a hotel at
Crl.M.C.No.2010 2973/2018 4

Bombay in September 2016 and also on 24 th and 25th October 2016 .

On the basis of re-assurance given by the accused, they had physical

relationship. On 17/12/2016, she was invited to the house of the

accused at Kollam. She went there and had physical relationship there

also. In March, June and October, 2017, they stayed on different dates

in the apartment of the accused at Ernakulam and had physical

relationship. The relationship continued even thereafter and had

stayed together at a hotel in Thiruvananthapurm on 6/4/2017. Both

agreed to get married on 8/12/2017 under the Special Marriage Act.

Notice was given under the Special Marriage Act. According to the

defacto complainant, she waited at Sub Registrar’s Office at Chala,

Thiruvananthapuram. However, the accused did not turn up. She went

to the house of the accused on 11/12/2017. His parents abused her and

sent her back asserting that they were not agreeable for the

marriage. Complaint was laid by her to the various police officers.

According to her, since no action was taken, private complaint was laid

on 16/12/2017. Crime was registered as Crime No.25/2018 by

Sooranadu Police station on 5/1/2018.

4. Alleging that investigation was not properly and effectively

conducted, Crl.M.C.2010/2010 was filed by the defacto complainant.

It was contended that, accused had filed an application for pre arrest

bail as BA No.101/2018 before the Sessions Court, Kollam. That court

granted anticipatory bail to the accused without imposing any
Crl.M.C.No.2010 2973/2018 5

stringent condition. It was contended that, custodial interrogation of

the accused was essential and she sought to cancel the anticipatory

bail.

5. In the meanwhile, the accused filed Crl.M.C.No. 2973/2018 to

quash the criminal proceedings against him on the premise that

offence alleged against him will not survive and that, even assuming

that all the allegations are true, it only indicated consensual physical

relationship.

6. Pending the proceeding, Crl.M.A.No.6399/2018 was filed by

the defacto complainant in Cri.M.C.No.2973/2018. It was stated that,

complaint was laid by her under considerable stress and

misunderstanding. She stated that, in the meanwhile, with the

intervention of elders, all the outstanding disputes between the parties

were settled and she does not propose to prosecute the criminal

proceedings. She asserted that, she intended to lead her own life.

Affidavit dated 11/6/2018 affirmed in support of the above settlement

was produced along with Crl.M.A. In the affidavit, it was stated that

both the parties were in love and had decided to marry each other.

With the passage of time, relationship deteriorated due to various

factors due to incompatibility and insensitivity to each other’s

feelings. Hence, she requested that criminal proceedings may be

quashed.

7. Since the allegations were serious and since this court was
Crl.M.C.No.2010 2973/2018 6

not inclined to quash the criminal proceedings on consent,petitioner

was directed to argue the matter on merits.

8. Learned senior counsel for the accused contended that,

ingredients of section 376 IPC were not brought out. It was contended

that, crux of the allegation was that, there was a false promise to

marry.

9. Evidently, parties are well educated. Both of them are now

working as pilot in Airlines Companies. Both knew consequences of

entering into physical relationship. Materials on record clearly show

that, they were in love and the relationship spanned over a long period

of four years. It is also on record that both had initially decided to

proceed with the marriage. Both had stayed at different hotels in

various places and had shared bed room.

10. Evidently, to establish that the accused had given a false

promise to marry and the consent was obtained on the basis of a

mistake of facts or misconception of facts to attract Section 90 of the

Indian Penal Code, it is essential that there should be an allegation

that promise was false from the very inception. It is also to be

established that, the consent was obtained on the basis of the false

promise to marry. In the complaint, there is absolutely no allegation

that, promise, that was made, was false from its very inception. Even

though there is an allegation that petitioner’s first physical

relationship in July 2013 was without her consent, when she slept
Crl.M.C.No.2010 2973/2018 7

after drinking the fruit juice, it seems that even thereafter, they stayed

at various hotels and had physical relationship. Each time, the

accused allegedly reiterated the promise. It cannot be stated that an

adult woman who is well educated and well aware of the consequences

can be carried away several times by repeated assurances.

11. It is also brought on record that, once the defacto

complainant had gone to the house of the accused wherein, the mother

of the accused ridiculed her and asserted that they will not permit the

accused to marry her. In spite of this, they continued their physical

relationship. It is seen that ultimately both sides fixed the date of

marriage under the Special Marriage Act and notice was given. It

indicates that both were proceeding as if they agreed to marry. What

transpired thereafter is not clear.

12. The facts narrated above and sought to be established

through the statement of the victim does not indicate that there was a

promise which was false from its very inception to attract section 90

IPC. In Uday v State of Karnataka(2003) 4 SCC 46), it has been

reiterated that, misconception of facts under section 90 IPC arises

only if there is a false promise and sufficient materials to establish that

consent was obtained on the basis of a false promise to marry were

produced. Such an ingredient evidently is not available in the case at

hand.

13. Having considered the above facts, I am satisfied that
Crl.M.C.No.2010 2973/2018 8

successful prosecution of the accused is not possible in the case at

hand. Hence, I am inclined to invoke the jurisdiction of this court

under section 482 Cr.P.C.to quash the criminal proceedings against

the petitioner herein.

In the result, Crl.M.C.No.2973/2018 is allowed and all further

proceedings in Crime No.25/2018 of Sooranadu Police Station stands

quashed. Crl.M.C.No.2010/2018 is closed in the above

circumstances.

Sd/-

SUNIL THOMAS

dpk JUDGE
Crl.M.C.No.2010 2973/2018 9

APPENDIX OF Crl.MC 2010/2018
PETITIONER’S/S EXHIBITS:

ANNEXURE 1 A TRUE COPY OF THE ENTRY DATED 24-10-
2016 MADE BY THE PETITIONER AND THE 2ND
RESPONDENT DURING THEIR STAY IN ARTUS
HOTEL, MUMBAI.

ANNEXURE 2 A TRUE COPY OF THE ENTRY DATED 29-09-
2016 MADE BY THE PETITIONER AND THE 2ND
RESPONDENT DURING THEIR STAY IN HOTEL
STAR SUITE, MUMBAI.

ANNEXURE 3 A TRUE COPY OF THE ENTRY DATED 14-03-
2017 MADE BY THE PETITIONER AND THE 2ND
RESPONDENT DURING THEIR STAY IN IMPERIAL
HOTEL, MUMBAI.

ANNEXURE 4 A TRUE COPY OF THE NOTICE NO.P7204148 OF
INTENDED MARRIAGE.

ANNEXURE 5 COPY OF FIR IN CRIME NO.101/2018 OF
SOORANAD POLICE STATION, KOLLAM
DISTRICT.

ANNEXURE 6 CERTIFIED COPY OF THE ORDER IN
ANTICIPATORY BAIL APPLICATION 101/2018
DATED 09-02-2018 BEFORE THE COURT OF
SESSIONS JUDGE, KOLLAM.
Crl.M.C.No.2010 2973/2018 10

APPENDIX OF Crl.MC 2973/2018
PETITIONER’S/S EXHIBITS:

ANNEXURE-A. THE TRUE COPIES OF WHATS APP MESSAGES RECEIVED
BY THE PETITIONER

ANNEXURE-B. TRUE COPY OF THE PETITION DATED 16/12/2017.

ANNEXURE-C. TRUE COPY OF THE E-MAIL DATED 2/1/2018.

ANNEXURE-D. THE CERTIFIED COPY OF THE FIR IN CRIME
NO.25/2018 OF SOORANADU POLICE STATION

ANNEXURE-E. THE TRUE COPY OF THE ORDER OF THE SESSIONS
COURT, KOLLAM IN CRL.MC NO.101/2018.

ANNEXURE-F. THE CERTIFIED COPY OF THE COMPLAINT PREFERRED

BY THE 2ND RESPONDENT FILED BEFORE THE JFCM-

SASTHAMCOTTA AS CMP NO.21/2018.

ANNEXURE-G. THE TRUE COPY OF THE REPROT DATED 6/1/2018 OF
SUB INSPECTOR OF POLICE, SOORANADU POLICE
STATION.

ANNEXURE-H. TRUE COPY OF THE LAWYER NOTICE DATED 19/3/2018

ANNEXURE-I. TRUE COPY OF THE REPLY NOTICE

ANNEXURE-J. TRUE CERTIFIED COPY OF THE CRL.MC NO.2010/2018
FILED BY THE 2ND RESPONDENT BEFORE THIS
HONOURABLE COURT.
ANNEXURE R2(A): THE ORIGINAL OF THE SETTLEMENT AFFIDAVIT DATD 11/6/2018

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