Sudheesh Babu vs State Of Kerala

Bechu Kurian Thomas, J.

This is an application seeking regular bail filed under Section 439 of the Code of Criminal Procedure, 1973.

Petitioner is the accused in Crime No.746/2022 of Kumily Police Station, Idukki, alleging offences punishable under Section 376(2)(n) of the Indian Penal Code, 1860.

According to the prosecution, the accused and the victim were in a relationship and under a promise of marriage, the accused took the victim to Kumily and had sexual intercourse with her on 11.09.2022 and again on 12.09.2022 at the house of another lady and the accused thereby committed the offences alleged.

Sri.Johnson Gomez, the learned counsel for the petitioner contended that the entire prosecution allegations are false and the incident as alleged had not occurred. It was also submitted that the petitioner belongs to the Scheduled Caste community while the victim belongs to the Scheduled Tribe community and both of them had agreed to marry each other. However, due to certain information that came to the knowledge of the petitioner, he did not want to pursue the relationship further. The learned counsel submitted that merely because the relationship did not fructify into a marriage, the same cannot render the physical relationship between them as a rape since even going by the prosecution case, the relationship was purely consensual. The learned counsel also submitted that in any event, having regard to the date of arrest which is 15.11.2022, further detention of the petitioner ought not to be permitted.

Smt.M.K.Pushpalatha, the learned Public Prosecutor opposed the grant of bail and contended that the allegations are serious and that since the investigation is still going on, petitioner ought not to be released on bail.

I have considered the rival contentions.

Even going by the prosecution case, petitioner and the victim were in a relationship. As submitted by the learned counsel for the petitioner, merely because the relationship did not crystalize into a marriage, it cannot be said that the physical relationship could become a rape as contemplated under law. The Supreme Court had in the decision in Sonu Alias Subhash Kumar v. State of Uttar Pradesh and Another [AIR 2021 SC 1405] and in a series of decisions including Pramod Suryabhan Pawar v. State of Maharashtra and Others [(2019) 9 SCC 608] and Druvaram Murlidhar Sonar v. State of Maharashtra [(2019) 18 SCC 191] held that a subsequent refusal to marry does not by itself attract the offence of rape and unless the consent for sexual intercourse was obtained on the basis of a false promise of marriage, the consent cannot be treated as vitiated.

The circumstances in the case reveal that the petitioner and the victim were in a relationship and that they intended to marry. However, for reasons best known to the parties, the relationship did not end up in a marriage.

Having regard to the period of detention already undergone from 15.11.2022 and taking into reckoning the circumstances mentioned above, I am of the view that the continued detention is not essential.

Accordingly,  I  allow  this  application  on  the  following conditions :-

(a) Petitioner shall be released on bail on him executing a bond for Rs.50,000/- (Rupees fifty thousand only) with two solvent sureties each for the like sum to the satisfaction of the court having jurisdiction.

(b) Petitioner shall appear before the Investigating Officer as and when required.

(c) Petitioner shall not intimidate or attempt to influence the witnesses; nor shall he tamper with the evidence or contact the victim or her family members.

(d) Petitioner shall not commit any similar offences while he is on bail.

(e) Petitioner shall not leave India without the permission of the Court having jurisdiction.

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, notwithstanding the bail having been granted by this Court.