Jasna vs State of Kerala and Rafeeque @ Cheriyappu

M. Sasidharan Nambiar, J.—Petitioner is the de facto complainant, the prosecutrix in C.P. No. 45/2010 on the file of Judicial First Class Magistrate''s Court, Nilambur, taken cognizance for the offence u/s 376 of Indian Penal Code on Annexure-A final report. Second Respondent is the accused. Prosecution case, as seen from Annexure-A final report, is that on 5.4.2010 at about 2.30 a.m., second Respondent committed rape on the Petitioner, making her to believe that he will marry her and disregarding her objection and he thereby committed the offence. This petition is filed by the prosecutrix to quash the proceedings contending that Petitioner and second Respondent were in love and the crime was registered at the instance of the Petitioner due to certain temperamental differences at that time and subsequent to the registration of the crime, second Respondent married the Petitioner on 30.5.2010, evidenced by Annexure-B marriage certificate issued by Hayathul Islam Mahallu Committee, Manimooly and they are now living as husband and wife. Petitioner filed a separate notarized affidavit to the effect that second Respondent has already married her and in view of the marriage, prosecution against her husband/second Respondent is to be quashed.

Learned Counsel appearing for the Petitioner and learned Public Prosecutor were heard.

Learned Public Prosecutor submitted that a signed statement of the Petitioner was recorded, which establishes that she is now living with the second Respondent as his wife after a legal marriage and in such circumstances, appropriate order may he passed.

Though, ordinarily, an offence u/s 376 of Indian Penal Code cannot be quashed based on the settlement arrived at between the accused and the prosecutirx, the facts and circumstances of this case are different. The very prosecution case is that making Petitioner believe that second Respondent will marry her, he had sexual intercourse with her and there by committed the offence. Affidavit filed by the Petitioner establishes that subsequent to the registration of the case, second respondent fulfilled his promise and married her and she is now living cordially with the second Respondent as his wife. In such circumstances, it is not in the interest of justice to continue the prosecution, especially when, there is no likelihood of a successful prosecution, if Petitioner is to depose that second Respondent had sexual intercourse with her consent. If so, there cannot be a conviction for an offence u/s 376 of Indian Penal Code. In such circumstances, the proceedings would not serve any purpose. Hence, it is not in the interest of justice to continue the proceedings.

Petition is allowed C.P. No. 45/2010 on the file of Judicial First Class Magistrate''s Court, Nilambur is quashed.