Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN MONDAY, THE 9TH DAY OF OCTOBER 2023 / 17TH ASWINA, 1945 AGAINST THE JUDGMENT DATED 21/12/2006 IN SC 461/2006 OF ADDL.SESSIONS COURT/SPECIAL COURT (NDPS ACT CASES), THODUPUZHA REVISION PETITIONER/DEFACTO COMPLAINANT: SALOMY, D/O. VARGHESE, VARUGHAT HOUSE, PALLIKARAMURIYIL HOUSE, MARIMANOOR, THODUPUZHA TALUK. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.RENJITH B.MARAR RESPONDENTS/STATE & ACCUSED: 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. 2 JOSE, S/O.MATHECHAN, NEDUMALAYIL HOUSE PALLIMATTOM BHAGAM, PALLIKKAMURI KARA, KAMANNUR VILLAGE, THODUPUZHA. SRI.UNNIKRISHNAN.V.ALAPATT BY ADV. SMT M N MAYA, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR HEARING ON 09.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ORDER
It is against the order of acquittal of accused in a case charge-sheeted by the police for the offence under Section 376 and 312 IPC,
the victim came up in revision. The order of acquittal was passed mainly on the reason that the alleged cohabitation with the victim by the accused was with active consent, by disbelieving the oral testimony of PW6 and medical evidence adduced through PW3, the doctor who conducted medical termination of pregnancy (MTP) on the victim.
2. The legal question came up for
consideration is what actually amounts to consent as defined “sixthly” under the provision, Section 375 IPC. The victim had maintained an illicit relationship with the
accused right from the year 1986 i.e. while she was under the age of sixteen to seventeen. The relationship continued till the year 2003 until she attained the age of 33. The accused was unmarried and got married only in the year 2003. The case of victim is that consent for cohabitation was obtained under the guise of an offer to marry her. She has also admitted that earlier she had delivered a child in the year 1995 and the child was given to an orphanage. It is also admitted by her that the relationship was continued for a long period of fifteen years. Earlier she became pregnant and gave birth to a child in the year 1995. There is no evidence to show that she had raised any demand for marriage at any point of time or in the year
1995. The case advanced by the petitioner that
she did raise a demand to marriage at the time when she became pregnant earlier in the year 1995 cannot be accepted as it has got its own improbability and inconsistency. She had delivered a child and given to an orphanage and continued her relationship with the accused after the delivery of the child till the year
2003. Further, no evidence was adduced to show
that the accused is the father of the child earlier born to her. No document was produced to show any earlier complaint lodged or any
action taken worth the name against the accused or any refusal to marry her. Necessarily, the finding rendered by the trial court acquitting the accused on all charges deserves no interference. The Criminal Revision Petition fails, hence dismissed. Sd/- P.SOMARAJAN JUDGE SPV