DR. ANIL KUMAR R vs STATE OF KERALA

This petition is filed under Section 438 of the Code of Criminal Procedure.

The petitioner herein is the accused in Crime No.1314 of 2017 of Hosdurg Police Station, registered alleging offence punishable under Sections

373 and 313 of the IPC.

The victim is a 32 year old lady and the petitioner herein is doing his Post Graduation course in the Medical College Hospital at Kozhikode.

According to the de facto complainant, she has been working as a home nurse for the past 8 years and had been staying with her mother and

sister. In the year 2015, in connection with an ailment she had occasion to go to the Primary Health Center at Ennappara, where the petitioner was

serving as a doctor. She used to frequent the hospital very often. Her casual acquaintance with the petitioner became more personal in course of

time. They exchanged their telephone numbers and used to contact often. In the month of December, 2015 the victim was requested to come to

the house of the petitioner at Athiyampur. When she reached there, she was told that the wife of the petitioner had gone to Kozhikkode and the

petitioner was alone at home. She stayed there for three consecutive days as requested by the petitioner. On 22.12.2015, the petitioner had a long

conversation with the de facto complainant and thereafter persuaded her to have sexual intercourse with him. The same was repeated on another

day as well. In the month of January 2016, the de facto complainant realized that she was pregnant. When this was informed to the petitioner, he

assured that he would marry her. The petitioner is alleged to have taken the victim to a Jewelry shop and purchased a gold chain. On their way to

the Kumbala temple in a car, the petitioner is alleged to have tied the chain on her neck. However, he did not go fulfill his assurance and register

the marriage. On 03.04.2016, the de facto complainant, who was pregnant, was taken to the Mansoor Hospital by the petitioner herein and she

was examined by a Doctor. The Doctor opined that the fetus was not fully developed and suggested that the child be aborted. While she was in

the hospital, the petitioner herein used to bear the expenses for medicine and food. In the month of May, 2016, the petitioner herein joined the

Medical College Hospital, Kozhikkode for his PG course. As directed by the petitioner, the victim went and stayed with him. It is alleged that the

victim was subjected to sexual assault by the petitioner on repeated occasions. She had acceded to his request on the bona fide belief that the

petitioner would marry her. However, from the month of March 2017, the petitioner began to avoid the de facto complainant. He refused to

answer her calls. On 12.11.2017, the victim went to meet the petitioner herein to his residential home and his wife was also present there. The

petitioner became furious and assaulted the victim. On 15.11.2017, she went to the Kanhangad Hospital and secured treatment. However, she did

not disclose that she was assaulted by the de facto complainant to the Doctor who had examined her. According to the victim, on 11.12.2017, she

had given information to the Hosdurg Police Station and based on which the crime was registered.

The learned counsel appearing for the petitioner asserted that the allegations against the petitioner are absolutely untrue. The victim, as is evident

from her statement, was aware that the petitioner was a married man. With full knowledge of this fact, she had worked as a house maid. There has

never been any relationship , either sexual or emotional, between the petitioner and the de facto complainant. It is urged that the petitioner is a

married man, aged 38 years and is now pursuing his post graduate course. The de facto complainant is a divorced woman aged 32 years.

According to the learned counsel, if on these frivolous and extremely belated allegations, the petitioner herein is remanded to custody, he would be

subjected to humiliation and disgrace. The learned counsel emphatically denied that the petitioner had persuaded the victim to have sexual

intercourse with him on a promise of marriage. It is further submitted that the statement of the victim itself would reveal that she was aware of the

fact that the petitioner is a married man and the relationship, if any, between the parties was consensual.

The learned Public Prosecutor opposed the prayer .It is submitted that though there is some delay in setting the law in motion, the allegations are

extremely serious. The victim was given a false assurance by the petitioner and she was sexually exploited.

The de facto complainant entered appearance through her counsel The learned counsel would support the submissions advanced by the learned

public prosecutor. It is submitted that on repeated occasions, she was subjected to rape by the petitioner herein and there is no need to doubt her

version. The learned counsel would further submit that, on 15.11.2017, when the de facto complainant had gone to the house of the petitioner to

persuade him to marry her, he had subjected her to physical abuse. Allegations are extremely grave, according to the learned counsel, and this is

not a fit case for grant of pre-arrest bail to the petitioner.

I have considered the submissions advanced and have gone through the case diary. From the version of the victim, it is evident that she was

aware that the petitioner was married. She had worked as a house maid in his house while his wife was elsewhere. The medical report of the victim

only reveals that she have had sexual intercourse on previous occasions. The question whether the relationship was consensual or not cannot be

adjudicate at this particular stage. The petitioner is now studying his PG course at the Medical College Hospital, Calicut.

At this stage, a detailed evaluation of the allegations raised will not be proper or justified as it is likely to prejudice either of the sides. Consent

for the purpose of Section 375 of the IPC means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal

or nonverbal communication, communicates willingness to participate in the specific sexual act. In other words, it requires voluntary participation

after the exercise of intelligence based on the knowledge of the significance and moral quality of the act and after having fully exercised the choice

between resistance and assent. Whether there was a consent or not has to be ascertained only on an evaluation of all the relevant circumstances. A

woman can be held to have given consent only if she has freely agreed to submit herself while in free and unconstrained possession of her physical

and moral power to act in a manner in which she wanted. Consent may be express or implied, coerced or misguided or obtained willingly or

through deceit. There is a clear distinction between rape and a consensual act and in a case like this, this Court will have to carefully examine

whether a promise has been made to satisfy his lust or whether the consent involved was given after wholly understanding the nature and

consequences of sexual indulgence. It is by now settled that the acknowledged consensual physical relationship between two willing adults would

not constitute an offence under Section 376 of the IPC, especially, when the victim was a major on the date of occurrence.

Having regard to the nature and gravity of the allegations, the materials in support their of, the antecedents of the petitioner and other facts and

circumstance, I am of the view that custodial interrogation of the petitioner in a case of this nature is unwarranted. I am of the view that the

petitioner can be granted pre-arrest bail by imposing appropriate condition so that the interest of the prosecution can also be safeguarded.

i). The petitioner shall appear before the investigation officer within ten days from today and shall undergo interrogation. Thereafter, if he is

proposed to be arrested, he shall be released on bail on he executing a bond for a sum of Rs.40,000/- (Rupees forty thousand only) with two

solvent sureties each for the like sum.

ii)The petitioner shall co-operate with the investigation and shall appear before the Investigating Officer on all Saturdays between 9 a.m. and 10

a.m., for one month or till final report is filed, whichever is earlier. He shall make himself available for any medical test that he may have to be

subjected to.

iii)The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to

dissuade him/ her from disclosing such facts to the court or to any police officer.

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

In case of violation of any of the above conditions, the jurisdictional Court shall be empowered to consider the application for cancellation, if any,

and pass appropriate orders in accordance with the law.