The Kerala High Court has quashed the case registered against a lawyer for offences under Section 376(2)(n) and 313 of the Indian Penal Code.

The bench of Justice Kauser Edappagath observed that the allegation of sexual intercourse was so vague.

The prosecution case is that the petitioner-accused by giving a false promise of marriage had sexual intercourse with the complainant-woman. It is further alleged that the petitioner, later on, withdrew from his promise to marry the woman and also made preparation to marry another girl.

It is also alleged that during the course of the investigation it was revealed that the woman was forced to undergo two miscarriages at the instigation of the petitioner.

Senior Advocate Ramesh Chander appeared for the petitioner and Advocate John S.Ralph appeared for the complainant-woman. Senior Public Prosecutor P.G.Manu appeared for the State.

The Court observed that "Explanation 2 to Section 375 of IPC refers to the form of consent. It specifically says that consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non verbal communication, communicates willingness to participate in the specific sexual act. Thus, if the consent as described in Explanation 2 could be made out from the statement of the victim, the offence under Section 375 of IPC cannot be said to be attracted."

The Court noted that "A close reading of the FI statement would show that the allegation of sexual intercourse allegedly the petitioner had with the 2nd respondent is so vague. In the FI statement, the 2 nd respondent stated that she could not say the dates of the alleged sexual intercourse. Admittedly, the petitioner and the 2nd respondent were in consensual relationship for the past four years."

The Court also noted that there is absolutely no specific allegation in the FI statement that the petitioner had given a promise to marry which at the inception was false and based on which the woman was induced into a sexual relationship.

"…the alleged sex between the petitioner and the 2nd respondent can only be termed as one on account of love and passion for the petitioner and not on account of misrepresentation made to her by the petitioner.", the Court observed.

The Court noted that if the facts set out in the FI statement are accepted in totality, no offence under Section 375 of IPC is made out. The Court further observed that offence under Section 313 IPC is also not made out.

The Court further noted that the affidavit sworn in by complainant-woman would show that the entire dispute has been settled and she does not want to proceed with the case further.

Thus, the Court quashed all further proceedings against the petitioner-accused.

Earlier, while granting bail to the accused, another Bench of the Court had held that a subsequent refusal by the accused man to marry the complainant will not constitute rape unless the consent for sex with the complainant was obtained by fraud or misrepresentation.

Cause Title- XXX v. State & Anr.

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