Appellant appealed bail rejection in rape and cheating case involving victim of Scheduled Caste. Court found evidence insufficient for rape if promise of marriage was genuine, not a hoax.
Appellant released on bail with bond of Rs.50,000, sureties, alternate Saturday appearance, passport surrender, and no further offences.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
FRIDAY, THE 17TH DAY OF MARCH 2023 / 26TH PHALGUNA, 1944 CRL.A NO. 327 OF 2023
AGAINST THE ORDER/JUDGMENT CMP 377/2023 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI
APPELLANT/PETITIONER:
MUHAMMED ANSAR AGED 27 YEARS S/O. HAMZA, KANNATH VALAPPIL HOUSE, MADATHUMPURAM ROAD, KOKKOOR P.O., CHANGARAMKULAM, MALAPPURAM DISTRICT, PIN - 679591
BY ADVS. SRUTHY N. BHAT P.M.RAFIQ M.REVIKRISHNAN AJEESH K.SASI RAHUL SUNIL SRUTHY K.K NIKITA J. MENDEZ
RESPONDENTS/RESPONENTS:
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031
2 XXX XXX BY ADV PUBLIC PROSECUTOR
OTHER PRESENT:
PP MAYA ANTHARJANAM
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.03.2023, THE COURT ON 17.03.2023 DELIVERED THE FOLLOWING:
Crl.A. 327/2023
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JUDGMENT
Dated this the 17th day of March, 2023
The appellant is the accused in Crime No. 137 of 2023 registered at the Changaramkulam Police Station for the offences under Sections 366, 376(2)(n) and 506 of IPC and Section 66-E of the Information Technology Act and Sections 3(2)(v) and 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The crime is registered based on the 2nd respondent's complaint that, the appellant had committed rape on her on a day in May, 2017 and thereafter on three or five other occasions, by securing the 2nd respondent's consent on false promise of marriage. Further, the appellant also compelled her to take nude videos during their conversation over mobile phone and threatened to circulate the videos. The appellant later retracted from the promise and his marriage as fixed with a girl from his own community. All these acts were committed by the appellant, a Muslim, knowing fully well that the petitioner belongs to
Crl.A. 327/2023
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Scheduled Caste. The appellant was arrested on 08.02.2023 and his application for bail stands dismissed by the impugned order.
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justification in the continued incarceration of the appellant, even after completion of the investigation.
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sex at the residence of one of appellant's relatives. The affair continued upto 2022 and indulged in sexual intercourse a few more times. In between the appellant secured employment abroad. He later sought the permission of his parents to marry the 2nd respondent. The proposal was not only opposed by the appellant's parents but they even threatened the relatives of the 2nd respondent.
mere hoax. Similar view was expressed in Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra and Others [(2019) 18 SCC 191], para 23 of which reads as under;
“23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his
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lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.”
The latest in the above line of decisions is Naim Ahamed v State (NCT of Delhi) [2023 SCC OnLine SC 89] , wherein the Apex Court observed that it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence of rape. The materials on record are also not sufficient to hold that the appellant had committed the alleged offences with the knowledge and by reason of the the 2nd respondent being a member of the scheduled caste. In any event, major part of the investigation, including potency test of the appellant, being complete, no purpose will be served by the appellant
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continuing in custody.
In the result, the Crl.Appeal is allowed and the impugned order is set aside. Consequently, the court below is directed to release the appellant on bail, subject to the following conditions;
i. The appellant shall execute a bond for Rs.50,000/-
with two solvent sureties for the like amount to the satisfaction of the court below.
ii. The appellant shall appear before the investigating officer on alternate Saturdays between 10 a.m. and 11
a.m. till final report is filed.
iii. The appellant shall surrender his passport before the trial court and shall not leave the State without obtaining permission of the trial court.
iv. The appellant shall not involve in any other offence while on bail.
Sd/-
V.G.ARUN
JUDGE
sb
3 issues framed by the court
Whether alleged rape constituted only consensual sexual relations based on a broken promise of marriage?
Whether facts establish necessary intent for rape under Section 376 IPC?
Whether bail should be granted after investigation completion?
Colour shows how this judgement treated each authority
Mandar Deepak Pawar v. The State of MaharashtraDistinguished¶23
Mandar Deepak Pawar v. The State of Maharashtra (2022 LiveLaw (SC) 649)
Prithvi Raj Chauhan v. Union of IndiaDistinguished¶23
Prithvi Raj Chauhan v. Union of India (AIR 2020 SC 1036) · Who else cites this
Deelip Singh @ Dilip Kumar v. State of BiharRelied on¶33
Deelip Singh @ Dilip Kumar v. State of Bihar [(2005) 1 SCC 88] · Who else cites this
Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra and OthersRelied on¶33
Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra and Others [(2019) 18 SCC 191] · Who else cites this
Naim Ahamed v State (NCT of Delhi)Relied on¶39
Naim Ahamed v State (NCT of Delhi) [2023 SCC OnLine SC 89] · Who else cites this
5 provisions across 3 enactments
Muhammed Ansar
State of Kerala
XXX XXX
V.G. Arun
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
V.G. Arun
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