the entire materials including the deposition given by the
prosecutrix and also, the Exts.D1 and D4 documents
admitted by her during trial, I find the defence version is
acceptable, that whatever transpired between the
prosecutrix and the accused was purely consensual.
Ofcourse, the prosecutrix examined as PW1 has given
evidence in tune with the allegations made in the Ext.P1
complaint. An analysis of the evidence given by the lady will
show that the lady had intercourse with the accused on
many occasions at her residence. Even a common lady or an
uneducated lady cannot be deceived more than once or
twice on a promise of marriage. PW1 is a well educated lady
having a degree in Engineering. It is quite unbelievable that
she could be easily deceived on a marriage promise on many
occasions. Admittedly, three or four such instances were at
her residence, when her parents were away. Much probe is
not required in this case to find that the sexual intercourse
which the prosecutrix had with the accused on many
occasions at her house was with her consent.
5. The Ext.D1 is a letter written by the victim to
the lady proposed in marriage to the accused before the
filing of the Ext.P1 complaint. This letter will show clearly
that she had an illicit affair with the accused, and as part of
this affair and unholy union, she had sexual intercourse with
him on many occasions. Consent for sexual intercourse is
well discernible from the Ext.D1 letter admitted by the
prosecutrix. Ext.D4 is the e-mail communication sent by the
prosecutrix to the accused after the filing of the Ext.P1
complaint. During trial she very well admitted the
authorship of the communication, and also the contense
therein. This will show that she was not in fact taken to any
hotel room, as she would allege in the complaint, and that
she happened to make a complaint, and even give statement
during investigation only as instructed or tutored by her
counsel. The Ext.D4 communication will convincingly and
unearthingly prove that the intimacy or affair between the
prosecutrix and the accused was really illicit and unholy, and
that as part of this affair, she had submitted herself to him
on many occasions with full consent and will. However,
when some difference of opinion cropped up, or when the
accused retracted from the affair for reasons known to them
alone, she made a complaint alleging rape. I am well
satisfied by the Ext.D1 and D4 documents that if at all the
prosecutrix had any sexual union with the accused once, or
more than once, it was with her full consent, as part of her
unholy union with him. It appears that after the accused
retracted, and decided to marry one Meera, the prosecutrix
tried all ways possible to dissuade him and Meera, and when
she failed in her attempt, she made a complaint alleging
rape. In the Ext.D4 communication sent through e-mail she
has even stated that she would come to court and tell the
court that she was not in any manner sexually abused and
exploited by the accused, that she was not at any time taken
to any hotel, and that her union with him was with full
consent. On an appreciation of the entire evidence including
the Ext.D1 and D4 documents admitted in clear terms by the
prosecutrix, I find that this is a clear case of consent, and
that the sexual intercourse was not at any time vitiated by
any false promise. In the above circumstances, a conviction
under Section 376 IPC is not possible at all. I find that the
accused was wrongly found guilty by the court below.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
MR. JUSTICE P.UBAID
Dated:13TH DAY OF JANUARY 2017
CRL.A.No. 578 of 2012 ()
RATHEESH Vs STATE OF KERALA,
