Dismissed

Anzar v. State of Kerala

Kerala HC14 Sept 2022Crl.MC/4040/2013

Case brief

AI extract

What is this about?

The petitioner sought quashing of proceedings for rape under Section 482 CrPC, claiming lack of evidence and consenting conduct. The Court held consent must be determined at trial, distinguished prior acquittal as relating to specific instances not implicating the petitioner, and dismissed the petition.

What did the court decide?

Petition under Section 482 Cr.P.C. dismissed; trial to commence at earliest by jurisdictional Court.

Anzar Vs State of Kerala — Quashing and FIR | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

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WEDNESDAY, THE 14^TH DAY OF SEPTEMBER 2022 / 23RD BHADRA, 1944

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CRL.MC NO. 4040 OF 2013

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CRIME NO.150/2012 OF Kollam West Police Station, Kollam

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PETITIONER:

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ANZAR AGED 26 YEARS S/O HUSSAIN, BISMILLA HOUSE, NEAR DH CENTRE, VETTIL VILLAGE, VARKKALA BY ADV SRI.SUNNY ZACHARIA

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE LEARNED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2 ABDUL FAZIM AGED 34 YEARS S/O YUZUF KUNJU, PERUMALIL KOCHU VEETTIL, NEAR VISHANTHUKAVU TEMPLE, THIURMULLAVARM, KOLLAM 3 FATHIMA AGED 20 YEARS D/O SHAHIDA, MALIKA VAYAL, KOCHUTHANGAL NAGAR, 303 PALLIMUIKKU, KOLLAM BY ADVS. SRI.BINU GEORGE SMT.HEMALATHA

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THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 14.09.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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CRL.MC NO. 4040 OF 2013

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BECHU KURIAN THOMAS, J.

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Crl.M.C. No. 4040 of 2013

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Dated this the 14^th day of September, 2022

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ORDER

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Petitioner is the 2^nd accused in Crime No.150 of 2012 of Kollam West Police Station. He is indicted for the offences under Section 376, 366, 323, 506(2) r/w Section 34 of the Indian Penal Code, 1860.

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The 3^rd respondent is the victim, at whose behest the crime was registered, alleging that petitioner and other accused had forcibly raped her from 17-02-2022 onwards. The victim is a married lady who had walked out of the marital home at the behest of the 1^st accused and thereafter, all the accused took her in a car to different places and raped her.

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Sri. Sunny Zacharia, the learned counsel for the petitioner vehemently contended that the entire prosecution allegations, even if admitted, do not make out any offence against the petitioner. He further contended that, except for a bare mention that the 2^nd accused had committed rape on the victim, there is no other evidence or statement worth its name to prosecute the petitioner.

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The learned counsel also pointed out that even in the statement given under Section 164 of the Cr.P.C, the victim had not made any

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CRL.MC NO. 4040 OF 2013

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allegations against the petitioner. It was also submitted that continuance of the proceedings in the trial court is an abuse of the process of the Court.

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Sri. Noushad K.A., the learned Public Prosecutor opposed the application and submitted that even though the 1^st accused and the 6th accused have been acquitted after due trial, the same cannot justify quashing of the proceedings as against the petitioner especially since the allegation is of rape. It was further submitted that the trial was only as against A1 and A6 and the victim had not mentioned anything against the other accused in the said trial. Therefore the said acquittal cannot be made use of to quash the proceedings against the petitioner. The learned Public Prosecutor also submitted that, in the statement given by the victim on 27-03-2013 which was after the statement given under Section 164 of the Cr.P.C. the victim had specifically alleged rape committed by the petitioner and therefore quashing the proceedings at this stage, cannot be resorted to.

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I have considered the rival contentions and I have also perused the case diary.

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The offence alleged against the petitioner is primarily under Section 376 of the IPC. Though initially, the victim had not stated anything regarding rape committed by the petitioner, subsequently,

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CRL.MC NO. 4040 OF 2013

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in the statement given on 27-03-2013, the victim specifically mentioned that the petitioner had also committed rape on her. It is also seen that the victim had on 19-02-2012 jumped out of a moving car in a bid to escape from the clutches of the accused.

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The contention of the learned counsel for the petitioner that the conduct of the victim indicates an instance of consent for the act of sexual intercourse with the accused is a matter which requires appreciation of evidence at the time of trial. The contention that since the victim allegedly travelled with the accused in a car after the alleged rape, by itself, cannot be taken into reckoning at this stage, to arrive at a conclusion that there was consent, especially when this Court is considering a petition under Section 482 of the Cr.P.C.

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The law is well settled that when the ingredients of the offence of rape are not made out, the proceedings can be quashed under Section 482 (Refer to Shambu Kharwar v. State of Uttar Pradesh & Another AIR 2022 SC 3901 ).

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The contention now raised before this Court is that even going by the prosecution case the victim had consented to the sexual act and hence the prosecution should be quashed. Reliance is also placed on the decision Jose Thettayil v. Station House Officer, 2013 (3) KLT 552. I cannot accept the aforesaid contention for more reasons than one.

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CRL.MC NO. 4040 OF 2013

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Consent is a matter which refers to the state of mind. Various factors go into the making of a valid consent. When the accused is in a position of dominance, yielding to the sexual advances of the accused by itself is not indicative of consent. Similarly, merely because the prosecutrix travelled with the accused in a car is not determinative of her consent to have a physical relationship.

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The factual situation that arose in Jose Thettayil (supra) is wholly different. In the said case the Court found that consent of the prosecutrix was clearly established. However, in the present case the facts are substantially different. The prosecutrix had admittedly jumped out of a moving car to escape the clutches of the accused. Prima facie the said conduct, by itself, is sufficient to indicate a position of dominance and that there was no consent. Anyway, those are all matters to be determined at the time of trial.

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Consent is a matter which has to be appreciated at the time of trial and therefore jumping into a conclusion by this Court at the stage of considering a petition filed under Section 482 Cr.P.C., that too without any specific material to prove or disprove the presence or absence of consent is according to me legally impermissible.

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It is true that as against A1 and A6 the trial court had after due trial, acquitted them on the basis of the deposition of the victim and after finding that there is no evidence to prove the commission of

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CRL.MC NO. 4040 OF 2013

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rape. However, the benefit of the said judgment cannot be availed by the petitioner since each of the instances of rape alleged by the victim were distinct and specifically attributed as against each accused. Therefore merely because A1 and A6 have been acquitted by the trial Court after due trial, petitioner cannot claim the benefit of the said judgment in the peculiar circumstances of the case.

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Accordingly, I dismiss this petition under Section 482 of the Cr.P.C. Having regard to the long delay, I direct the jurisdictional Court to initiate appropriate steps to commence the trial of the matter at the earliest.

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With the above observations this Crl.M.C. is dismissed.

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Sd/BECHU KURIAN THOMAS JUDGE

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AJM/14/9/22

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CRL.MC NO. 4040 OF 2013

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APPENDIX OF CRL.MC 4040/2013

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PETITIONER ANNEXURES

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ANNEXURE 1 CERTIFIED COPY OF THE FIR NO 150/2012 OF KOLLAM WEST POLICE STATION DATED 18-02-2012 ANNEXURE 2 TRUE COPY OF THE STATMENT OF THE DEFACTO COMPLAINANT DATED 18-022012 ANNEXURE 3 TRUE COPY OF THE REPORT DATED NIL FILED BY THE POLICE BEFORE THE MAGISTRATE ANNEXURE 4 RUE COPY OF THE STATEMENT OF FATIMA RECORDED BY THE POLICE DATED 2012-2012 ANNEXURE A5 TRUE COPY OF THE STATEMENT OF THE FATIMA RECORDED BY THE MAGISTRATE DATED 20-02-2012 ANNEXURE 6 LEGIBLE COPY OF THE ANNEXURE 5 ANNEXURE 7 CERTIFIED COPY OF THE REPORT FILED BY THE POLICE, INCORPORATING THE OFFENCES U/S 366,323,506(I),376 R/W 34 IPC, DATED 19-05-2012 ANNEXURE A8 CERTIFIED COPY OF THE REPORT IMPLICATING THE PETITIONER AS THE 2ND ACCUSED DATED 22-01-2013

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//TRUE COPY//

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PA TO JUDGE

Anzar v. State of Kerala

Case brief

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What did the court decide?

Anzar v. State of Kerala

Case brief

What is this about?

What did the court decide?

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