Anshid vs State Of Kerala

The petitioner has been arrayed as the sole accused in Anx-A1 Crime No.1117/2019 of Adoor Police Station, which has been registered for

offence punishable under Secs.376 of the I.P.C. The petitioner has been arrested in relation to this Crime on 7.5.2019 and has been under judicial

custody since then.

Sri.C.Rajendran, learned counsel for the petitioner, would submit that a perusal of Anx-A1 FI statement given by the lady-victim would clearly

show that the entire incidents, if true, would have been occurred only on the basis of the consent of the parties and that the vital ingredients of offence

of forcible sexual intercourse of rape as per Sec.376 of the I.P.C are absent in this case.

The learned Prosecutor has submitted that the following aspects were borne out from FI statement which was given by the lady-victim on

30.4.2019, which has led to the registration of the instant crime.

It is stated that the lady defacto complainant/victim, aged 23 years, got acquainted with the petitioner through social media and that the petitioner-

accused had promised her that he would marry her and they started a love affair and that on 2.2.2017, they had sexual intercourse in a Hotel at Adoor

and later they had sexual intercourse in the DLF flat owned by the petitioner and various other hotels and other places. That later, the petitioner-

accused had started neglected her and stopped his telephonic communications with the lady and that she felt cheated and thus she was constrained to

give complaint to the Police in this case.

The learned counsel for the petitioner has cited various rulings of the Apex Court and various High Courts about the vital and substantial distinction

between the forcible sexual intercourse of rape under Sec.376 of the I.P.C and consensual sexual relationship and would point out breach of promise

to marry cannot be the basis to contend that consent of the lady was given on the basis of misconception as conceived in Sec.90 of the I.P.C and in

cases like this, where for quite some time the parties were having sexual relationship, it cannot be contended that consent was obtained on the basis of

misconception of facts in terms of Sec.90 of the I.P.C and therefore the relationship of such consent cannot be the basis to make out an offence

under Sec.376 of the I.P.C.

The learned Prosecutor has opposed the grant of regular bail and submitted that there is likelihood of the petitioner intimidating and influencing the

witnesses and the victim, if he is let out on bail.

After hearing both sides and testing the facts of this case in the light of the abovesaid judicial precedents regarding the distinction between rape and

consensual sexual relationship, this Court is of the view that continued detention of the petitioner is no longer necessary in this case. The petitioner has

been under judicial custody since 7.5.2019 onwards. The apprehension of the Prosecutor that there is likelihood of the petitioner influencing and

intimidating the witnesses and the victim cannot be ruled out. The said apprehension could be alleviated by directing that the petitioner shall not reside

anywhere near the house of the lady-victim, until the conclusion of the trial.

Accordingly, it is ordered that the petitioner-accused shall be released on bail on his executing a bond for Rs.50,000/-(Rupees Fifty Thousand only)

and on his furnishing 2 solvent sureties for the like sum each to the satisfaction of the competent court concerned. However, the above order shall be

subject to the following conditions:

(i). The petitioner will report before the Investigating Officer concerned at any time between 10:00 a.m. and 12:00 noon on every 2nd and 4th

Saturdays for the next 3 months. Thereafter the petitioner shall report before the Investigating Officer as and when directed by him.

(ii). The petitioner shall not intimidate or attempt to influence the defacto complainant/victim, witnesses; nor shall tamper with the evidence.

(iii). The petitioner shall not commit any similar offence while on bail.

(iv) The petitioner shall not enter into or reside anywhere within the limits of the District where victim-defacto complainant is residing, until the

conclusion of the trial, except for the limited purpose of reporting before the Investigating Officer in this case or in any other crimes and for attending

to the courts in connection with this cases or any other cases or for contacting his advocate/lawyer, etc.

(v) However, if there is any emergent and genuine reasons for the petitioner to go to that District, then he may do so only with the prior permission of

the Investigating Officer concerned.

In case of violation of any of the above conditions, the jurisdictional Court concerned will stand hereby empowered to consider the application for

cancellation of bail, if required, and pass appropriate orders in accordance with the law.

With these observations and directions, the above Application stands allowed.