Prosecution Case Does Not Reveal That Sexual Intercourse Was Outcome Of Misconception Of Fact: Kerala HC Quashes Rape Case

The Kerala High Court quashed proceedings against the rape accused on the ground that the prosecution case did not reveal that the sexual intercourse was the outcome of misconception of fact.

The Court was deciding criminal miscellaneous cases filed by the sole accused seeking quashment of rape cases pending against him.

A Single Bench of Justice A. Badharudeen observed, “… it is discernible from the facts of the case that the defacto complainant initially had sexual intercourse with the accused during 2005 voluntarily with her consent and continued the same during 2011 and 2015 and on no stretch of imagination the prosecution case would reveal that the sexual intercourse is the outcome of misconception of fact, in any manner. Therefore, this is a fit case where this Court has to exercise its powers under Section 482 of Cr.P.C to quash the proceedings.”

The Bench clarified that if the materials would show that the relationship is purely consensual without an element of misconception of fact, the same is not rape.

Advocate C.P. Udayabhanu represented the petitioner while Senior Public Prosecutor Renjit George represented the respondents.

Facts of the Case -

As per the prosecution case, the accused who was the driver of a Tempo Van used by the complainant along with family for a tour programme to Kodaikanal, during the April month of 2005, made intimacy with her through mobile phone and other means. It was alleged that thereafter with an intention to commit rape on her, he took her to the tempo van and subjected her to rape on the back seat. In the meanwhile, he also allegedly photographed the visuals and thereby her modesty was outraged. Accordingly, the prosecution alleged commission of offences punishable under Sections 376 and 342 of the Indian Penal Code (IPC) as well as 66E of the Information Technology Act, 2000 (IT Act).

The complainant alleged commission of rape by the accused in 2011 who took her in a car to a room of Cottage Lodge, and raped her and the same was also recorded by him. It was further alleged that in 2015 and 2016 also, the accused brought her in a car and subjected her to sexual intercourse by threat at home stay lodge and repeated forceful sex. The counsel for the petitioner/accused submitted that the relationship between the two was purely consensual which is legally permissible. On the contrary, the Public Prosecutor contended that whether the relationship is consensual or not is a matter of evidence.

The High Court in the above context of the case noted, “Explanation 2 to Section 375 of IPC provides that consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. … Thus it has to be summarised that when, prima facie, materials would show that the prosecutrix was subjected to sexual intercourse on the promise of marriage without any bona fides under a misconception of fact, then the consent is vitiated.”

The Court said that the question to be considered by a court while considering quashment of the proceedings is, whether at the very inception, there is mutual consent to have sexual intercourse or the same is under a misconception of fact, on the promise of marriage or otherwise. It added that the said aspect depends on the facts of each case and hence, no hard and fast rule to be applied to almost all cases similarly.

“Even though the defacto complainant did not raise any complaint regarding the allegation of rape as on 17.07.2005 for a period of 6 years, her case further is that on 16.11.2021 the accused again subjected her to rape in room No.109 of IV Cottage Lodge, Munnar. Repeated sexual intercourse in this regard also stated in S.C.No.956/2018. Thereafter, as alleged in C.P.No.37/2023, the defacto complainant was alleged to be raped by the accused on 17.10.2015”, it further noted.

Accordingly, the High Court allowed the criminal miscellaneous cases and quashed the proceedings against the accused.

Cause Title- Sujith v. State of Kerala & Anr. (Neutral Citation: 2024:KER:52247)

Appearance:

Petitioner: Advocates C.P. Udayabhanu and Navaneeth N. Nath.

Respondents: Senior PP Renjit George

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