BY AD v. SHIBIN K.F

O R D E R In this revision petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (Code), the petitioner challenges the order of the trial court dated

11.12.2023 dismissing his plea for discharge. Crl.M.P.No.449 of 2023 filed by the petition in that regard was dismissed.

2. The petitioner is the sole accused in S.C.No.1232 of 2022 pending before the Fast Track Special Court, Chalakudy. This case was earlier pending before the Fast Track Special Court, Irinjalakuda, from where it was transferred to the Fast Track Special Court, Chalakudy. The petitioner is charged for the offences punishable under Sections 363, 376, 498A and 506 of the Indian Penal Code, 1860 (IPC). The case of the prosecution is as follows: The petitioner married the 2nd respondent on 16.06.2019. Their marriage engagement was held on 18.10.2018. Their relationship estranged since the 2nd respondent apprehended Crl.Rev.Pet.No.6 of 2024 3 that the petitioner was maintaining an undesirable relationship with another woman. The petitioner on the pretext of clearing that misunderstanding took the 2nd respondent to Krishna Holiday Village at Adat Panchayat on

14.02.2019. At 9.00 a.m. on the said day, the petitioner committed rape on the 2nd respondent in a room. The petitioner took her nude photographs and making use of the same he coerced and intimidated her for the marriage. After the marriage, the 2nd respondent came to know that the petitioner was maintaining an illicit relationship with another woman. The petitioner on many occasions assaulted the 2nd respondent physically and used to harass her mentally demanding more money and gold.

3. The petitioner on entering appearance filed Crl.M.P.No.449 of 2023 before the trial court seeking discharge under Section 227 of the Code. The trial court, after hearing both sides and considering the prosecution records, held that there was a prima facie case to proceed against the petitioner. Accordingly, Crl.M.P.No.449 of 2023 was dismissed as per order dated 11.12.2023. Crl.Rev.Pet.No.6 of 2024 4

4. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel for the 2nd respondent.

5. The learned counsel for the petitioner would submit that there is total dearth of materials to constitute any of the offences alleged against the petitioner. Indisputably, the 2nd respondent was above the age of 18 years. On the basis of the allegation that she was taken from the college where she was studying to the hotel, the petitioner has been charged for the offence punishable under Section 363 of the IPC. The facts of the case would not attract that offence.

6. Only evidence produced to prove rape allegedly committed on 14.02.2019 is the oral testimony of the 2nd respondent. The allegation is that she was taken to a hotel room and sexually abused in that room. No document to show her reaching in that hotel room is produced. The prosecution did not venture to collect any CCTV footage or such other electronic or scientific evidence. Therefore, the allegation concerning the rape is quite unsustainable. In regard to the offences of cruelty and intimidation also, there is no sufficient Crl.Rev.Pet.No.6 of 2024 5 material to proceed against the petitioner. Accordingly, the learned counsel for the petitioner maintains that the order of the trial court dismissing Crl.M.P.No.449 of 2023 is incorrect and liable to be set aside. The learned Counsel cited a slew of decisions to explain the parameters and requirements of law for charging or discharging an accused.

7. The learned Public Prosecutor and the learned counsel for the 2nd respondent, on the other hand, take the stand that the evidence proposed by the prosecution is enough for framing a charge against the petitioner. It is submitted that the 2nd respondent is reliable and the inconsistencies pointed out are concerning ancillary matters alone and her statements about the core of allegations are consistent. When the prosecution can have the aid of presumption under Section 114A of the Evidence Act, 1872 the plea for discharge cannot be entertained, it is urged.

8. The learned Counsel for the petitioner at the outset made a submission based on the law laid down by the Apex Court in Mahmood Ali and others v. State of U.P. and others [Judgment in Crl.Appeal No.2341 of 2023 dated Crl.Rev.Pet.No.6 of 2024 6

08.08.2023] this Court is obliged to consider frivolous nature of the allegations against the petitioner at this stage itself. The Apex Court reminded that if a complainant decides to proceed against the accused with an ulterior motive for wrecking vengeance, he/she would ensure that the complainant is drafted with all the necessary ingredients. Innocent persons implicated in such cases are to be protected against vexatious and unwarranted criminal prosecution and to look into attending circumstances emerging from the averments. If required, the court shall try to read in between lines.

9. Law regulating powers of court to discharge an accused person under Section 227 of the Code is succinct. If the Court finds there is not enough evidence to proceed against the person accused of, after considering the prosecution records and hearing arguments from both the accused and the prosecution, the court shall discharge the accused. Of course, the court must record its reasons for doing so. Crl.Rev.Pet.No.6 of 2024 7

10. In State of Bihar v. Ramesh Singh [AIR 1977 SC 2018] the Apex Court held that at the stage of framing charge, the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage, the truth, veracity and effect of the evidence, which the prosecution proposes to adduce, are not to be meticulously judged. It is also unnecessary to weigh the probable defence of the accused. In Union of India v. Prafulla Kumar Samal and another [(1979) 3 SCC 4] the Apex Court held that where the materials disclosed grave suspicion against the accused, which has not been properly explained, the court would be justified in framing a charge against the accused.

11. The view taken by the Apex Court in Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia and another [(1989) 1 SCC 715] is that the court need not conduct an elaborate enquiry in sifting and weighing of the evidence at the time of framing charge. It is also not necessary to delve into various aspects. All that the court has to consider is whether the evidentiary material on record, if Crl.Rev.Pet.No.6 of 2024 8 generally accepted, would reasonably connect the accused with the crime. In Soma Chakravarty v. State through CBI [(2007) 5 SCC 403] the Apex Court held that when there exists a strong suspicion, a charge can be framed. It was also cautioned that a mere suspicion as distinguished from grave suspicion is not enough to frame a charge.

12. In Vijayan P. v. State of Kerala and another [(2010) 2 SCC 398] the Apex Court deviated a little from the trodden path by holding that the judge who considers a question where a charge is liable to be framed is not a mere Post Office to frame the charge at the behest of the prosecution. The judge is expected to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. Following the said principle of law, this Court in Yohannan M.M. And another v. State of Kerala [2019 (5) KHC 908] held that if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the Crl.Rev.Pet.No.6 of 2024 9 offence, then it is a case of no sufficient ground for proceeding with the trial.

13. In Sanjay Kumar Rai v. State of Uttar Pradesh and another [AIR 2021 SC 2351], the Apex Court dilated the principle further. It was held that a court at the stage of framing charge has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The observation in the above regard is the following:- “It is well settled that the trial court while considering the discharge application is not to act as a mere post office. The Court has to sift through the evidence in order to find out whether there are sufficient grounds to try the suspect. The court has to consider the broad probabilities, total effect of evidence and documents produced and the basic infirmities appearing in the case and so on.”

14. A note of caution is sounded by the Apex Court in State of Gujarat v. Dilipsinh Kishorsinh Rao (MANU/SC/ 1113/2023]. It was held that at the stage of considering an application for discharge, the court shall proceed on the assumption that the material which the prosecution has brought on record is true and evaluate such Crl.Rev.Pet.No.6 of 2024 10 materials to determine whether the facts emerging from the materials taken on its face value disclosed the existence of the ingredients necessary of the offences alleged.

15. The variations in the statements of the 2nd respondent between F.I.statement and subsequent statement are not very conspicuous. They are only marginal variations. Of course, there is delay of about two years from the time when the 2nd respondent left her matrimonial home. But a plea of discharge cannot be accepted on the ground of delay alone, especially when the alleged offences are concerning a matrimonial relationship and the incident transpired prior to the marriage but after the engagement.

16. The marital relationship continued for more than six months. After falling out of the relationship, the 2nd respondent initiated the prosecution. It is submitted by the learned counsel for the petitioner that in such circumstances the allegation of rape that occurred on 14.02.2019 which the prosecution propound based only on the oral testimony of the 2nd respondent, cannot be acted upon. There must have been CCTV footages to prove her presence in the hotel on that day. Crl.Rev.Pet.No.6 of 2024 11 Neither such footages, nor the mobile phone chat between them were collected and produced before the court.

17. Having their engagement been already held, it cannot be said that the petitioner and the 2nd respondent going together to the hotel was unusual. The 2nd respondent went to the hotel and identified the room. That confirms the statement she gave in police describing the details in the hotel room. Subsequent marriage despite reluctance of the 2nd respondent’s parents need to be considered in the light of her version that she was intimidated by the petitioner stating that the petitioner had her nude photographs. Thus the statement of the 2nd respondent regarding the alleged offence of rape stands natural and probable. The marriage took place thereafter and also the delay in launching the prosecution cannot be reasons to discharge the petitioner.

18. The assertion of the 2nd respondent that she was subjected to sexual act on 14.02.2019 without her consent has to be looked upon in the light of Explanation-2 to Section 375 of the IPC, which reads,- “Consent means an unequivocal voluntary agreement Crl.Rev.Pet.No.6 of 2024 12 when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.” Considering the aforementioned aspects in the light of the law, which has been discussed above, the plea of the petitioner for a discharge from the offence punishable under Section 376 of the IPC cannot be countenanced.

19. As stated, the 2nd respondent was aged above 18 years during the relevant time and therefore no offence punishable under Section 363 of the IPC would lie against the petitioner. In regard to the other offences, namely, Sections 498A and 506 of the IPC, the evidence of the 2 nd respondent is supported by versions of her father and mother. In the light of the said materials, it can only be said that there are sufficient materials to proceed against the petitioner for the said offences. His plea based on the law laid down by the Apex Court in State of Andhra Pradesh v. M. Madhusudhana Rao [(2008) 15 SCC 582] is not able to be countenanced in the facts of this case. Crl.Rev.Pet.No.6 of 2024 13

20. Viewed so, the impugned order cannot be said to be incorrect. The petitioner is not entitled for a discharge except for the offence under Section 363 of the IPC. He has to stand trial for the offences under Sections 376, 498A and 506 of the IPC. Accordingly, this revision petition is allowed in part to the extent of discharging him for the offence under Section 363 of the IPC. Sd/- P.G. AJITHKUMAR, JUDGE