Non-Disclosure Of Earlier Crime Lodged Against Same Accused By Same Complainant Shows Falsity Of Allegations: Kerala High Court

The high court after examining the records and hearing the arguments noted that even though the de facto complainant has a case that she was subjected to repeated rape by the petitioner during the month of November, 2017 and prior and after that, she however did not file any complaint till 26.12.2018.

"It is most important that she did not raise such allegations even in the earlier crime registered against the petitioner vide crime No.528/2018 on the basis of her statement recorded on 22.12.2018," the court said. 

"No doubt, the parties are close relatives and according to the learned counsel for the petitioner, there is dissatisfaction on the part of the de facto complainant and her husband in the matter of allotment of shares. It is true that in the FIS, the allegation is that during the year 2017, she was subjected to rape and in the final report, the allegations were exaggerated and the same are to the effect that during November 2017 and before and after that she was subjected to rape repeatedly, by the petitioner herein in deviation from her allegation in the first information statement disclosing a solitary incident. Anyhow, the allegation as to commission of rape was alleged for the first time only on 26.12.2018, that too, even not disclosing the same in the First Information Statement given in the earlier cirme, viz., crime No.528/2018, registered at the instance of the de facto complainant against the petitioner herein on the basis of her statement given on 22.12.2018," it added.

The Court emphasized that the allegations of repeated rape were raised for the first time on 26.12.2018 and expanded further in the final report, without providing specific dates or consistency with the initial statements.

The Court referred to the Supreme Court's decision in Batlanki Keshav Kumar Anurag v. State of Telangana , which held that belated and contradictory allegations can constitute an abuse of the process of law. The Apex Court considered non-disclosure of the occurrence in the first FIR and disclosure of the same in the second FIR as fatal to the case of the de facto complainant therein being contradictory.

The court thereafter said:

"Going by the ratio of the above decision, the Apex Court considered non-disclosure of the occurrence in the first FIR No.751/2021 and disclosure of the same in the second FIR No.103/2022 as fatal to the case of the de facto complainant therein being contradictory. Following the ratio of the above, indisputably non-disclosure of a serious offence within a reasonable time or at least when an earlier crime was registered against the same accused at the instance of the same de facto complainant would show falsity of the allegations and making the procedure of law as an abuse. That apart, as pointed out by the learned counsel for the petitioner, similar allegations raised by the de facto complainant against other siblings of the petitioner". 

The court said that though Public Prosecutor had said that the de facto complainant is a deaf and dumb person, however the prosecution records in "no way" suggested so and as per the First Information Statement the only narration is that the de facto complainant is having some hearing loss. The court said that this contention also is of no avail to the prosecution.

"Having found that the allegations are not trustworthy for the reasons already extracted, it could not be held that prima facie offences alleged by the prosecution as per the impugned final report is established, warranting trial. On the contrary, the entire proceedings are abuse of process of court," the court added. 

The counsel for the petitioner argued that there existed animosity between the siblings over the father's property allotment. It was argued that although the alleged incident occurred in 2017, the de facto complainant filed the rape complaint only in 26.12. 2018, despite having filed another complaint against the petitioner on 22.12.2018 that did not mention any sexual assault. The petitioner's counsel highlighted the contradiction in the complainant's statements and argued that the allegations were fabricated to harass the petitioner and his siblings, pointing out multiple similar cases filed against other brothers that ended in acquittal.

The Public Prosecutor opposed the quashing petition, arguing that the materials collected during the investigation prima facie established the allegations, warranting a trial. It was also submitted that the de facto complainant is a deaf and dumb person, a factor that should be considered while assessing the delay and circumstances.

The court thus quashed the FIR.

Counsel for the Petitioner/Accused: Advocates Shri. K.P. Viswambharan, Sri.Nabil Khader

Counsel for the Respondents: Adv. Sheeba Thomas, Public Prosecutor

Case No: CRL.MC NO. 9090 OF 2022

Case Title: Xxx v. Xxx & Anr.

Citation: 2025 LiveLaw (Ker) 325