Karnataka High Court
State Of Karnataka By vs Ramegowda on 7 March, 2025
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NC: 2025:KHC:9749
CRL.RP No. 1031 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL REVISION PETITION NO. 1031 OF 2018
BETWEEN:
STATE OF KARNATAKA BY
CHANDRA LAYOUT POLICE STATION,
BENGALURU.
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING, BANGALORE-1
...PETITIONER
(BY SRI. CHANNAPPA ERAPPA, HCGP)
AND:
RAMEGOWDA
S/O CHANNAIAH,
AGED ABOUT 41 YEARS
R/A TIGULARA THOTA,
Digitally signed by NAYANDANAHALLI,
HARIKRISHNA V
Location: HIGH MYSORE ROAD,
COURT OF BENGALURU-560 039.
KARNATAKA ...RESPONDENT
(BY SRI. K.N SUBBAREDDY, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO ALLOW THE ABOVE CRIMINAL REVISION
PETITION AND SET ASIDE THE AFORESAID ORDER DATED
04.06.2018 IN S.C.NO.1158/2017 ON THE FILE OF THE COURT
OF LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT
BANGALORE (CCH-54).
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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NC: 2025:KHC:9749
CRL.RP No. 1031 of 2018
CORAM: HON'BLE MR JUSTICE RAJESH RAI K
ORAL ORDER
This revision petition is directed against the order dated 04.06.2018 passed in S.C.No.1158/2017 by the LIII Additional City Civil and Sessions Judge, Bengaluru (CCH-54) [hereinafter referred to as 'learned Sessions Judge'], whereby learned Sessions Judge allowed the application filed under Section 227 of Cr.P.C. by the respondent/accused and discharged him in Cr.No.28/2017 for the offence punishable under Sections 376, 354, 504, 506 and 417 of IPC.
2. The abridge facts of the prosecution case are that:
The prosecutrix-CW.1-a married lady with a child was separated from her husband. The accused exploited by taking advantage of her vulnerability and raped her for seven year promising to marry her. Finally, on 24.01.2017 when the victim confronted the accused insisting to visit her only after marrying her, he slapped, raped, threatened and vowed to not marry her. As such, she lodged a complaint before the Chandra Layout Police Station and based on the said complaint, the said police registered a case against the accused for the offences punishable under Sections 504, 506, 420 and 417 of IPC in -3- NC: 2025:KHC:9749 CRL.RP No. 1031 of 2018 Cr.No.28/2017 dated 26.01.2017. Subsequently, the said police investigated the case and laid chargesheet against the accused for the offences punishable under Sections 376, 354, 504, 506 and 417 of IPC before the Committal Court.
3. Subsequently, on committal of the case, the learned Sessions Judge, after securing the presence of the accused, took cognizance of the offences and the accused filed an application under Section 227 of Cr.P.C. to discharge him for the offences.
4. On hearing the learned counsel for the accused, the learned counsel for the public prosecutor and on assessment of the documents available on record, the learned Sessions Judge allowed the application filed by the accused and discharged him in Cr.No.28/2017 vide order dated 04.06.2018. The said order is challenged in this revision petition by the State.
5. I have heard the learned HCGP Sri. Channappa Erappa for the revision petitioner and the learned counsel Sri. K.N.Subbareddy for the respondent and perused the material on record.
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6. The primary contention of the learned HCGP is that the learned Sessions Judge, without appreciating the material placed before her, grossly erred in allowing the discharge application. According to the learned HCGP, the complaint, 164 statement and other materials collected by the Investigating Officer prima facie make out a case against the accused for the offences punishable under Sections 376, 354, 504, 506 and 417 of IPC. Despite this, the learned Sessions Judge discharged the accused without appreciating the materials on record in right perspective. He further contended that the learned Sessions Judge while discharging the accused, relied on the judgment of the Hon'ble Apex Court in the case of Uday v.
State of Karnataka reported in AIR 2003 SC 1639 and held that if on considering the entire prosecution for the sake of argument, even then the offence under Section 376 does not attract in this case. It is categorically stated by the victim in her complaint and 164 statement that the accused insistently remained sexually active with her promising to marry. In such circumstances, an elaborate trial is essential to ascertain the guilt of the accused. Hence, the impugned order passed by the learned Sessions Judge requires to be set-aside. Accordingly, he prays to allow the revision petition.
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7. Per contra, learned counsel for the respondent supports the impugned order passed by the learned Sessions Judge and prays to dismiss the petition.
8. I have given my anxious consideration to the submissions made by the learned HCGP, the learned counsel for the respondent and carefully perused the materials placed before me including the impugned order passed by the learned Sessions Judge.
9. As could be gathered from the records, the complaint was lodged by the victim on 25.01.2017 and an FIR in Cr.No.28/2017 was registered on 26.01.2017 for the offences punishable under Sections 506, 504, 420 and 417 of IPC. In the said complaint, it is stated that on 10.07.2010, the accused and the victim consummated when she was home alone at Chandra Layout, Bengaluru. However, the said complaint was lodged after a lapse of seven years i.e., on 25.01.2017. In her statement before the learned Magistrate under Section 164 of Cr.P.C., she deposed contrary to that of her complaint dated 25.01.2017. On perusal of her 164 statement, she deposed that the accused taking undue -6- NC: 2025:KHC:9749 CRL.RP No. 1031 of 2018 advantage of her vulnerability remained sexually active with her for nearly seven years promising to marry her. Finally on 24.01.2017, he vowed not to marry her. As such, she lodged a complaint. Admittedly, she is a married woman with a child.
Further, according to her statement, it was elicited that she was in good terms with the accused and that he frequently visited her residence for nearly seven years.
10. The learned Sessions Judge, while allowing the application, relied on the judgment of this Court in the case of Anjanappa vs. State of Karnataka in Crl.A.No.1833/2006, wherein the co-ordinate Bench of this Court held that 'Consensual sex between the accused and the victim will not constitute an offence under Section 417 or 376 of IPC'.
11. Further, the Hon'ble Apex Court in the case of Shiv Pratap Singh Rana v. State of M.P., reported in (2024) 8 SCC 313 held as under:
"24. From a perusal and comparison of the two statements of the prosecutrix, one before the police under Section 161CrPC and the other under Section 164CrPC, that too recorded within a span of 24 hours, what is noticeable is that not only are the statements contradictory in themselves, those are -7- NC: 2025:KHC:9749 CRL.RP No. 1031 of 2018 contradictory to each other as well. The fact that the appellant had lodged the FIR two years after the alleged incident is itself suggestive of the consensual nature of the relationship which had gone sour. It is inconceivable that the prosecutrix, who was about 22 years of age at the time of the alleged incident, would accompany the appellant to a temple if she was being threatened by the appellant. She was a major and, therefore, fully conscious of the consequences of her own actions. It is not the case of the prosecutrix that the appellant had forced her to have bath under the waterfall and thereafter took her photographs. The act of the prosecutrix having bath under the waterfall and changing her clothes thereafter in the company of the appellant virtually rules out any threat or coercion by the appellant on the prosecutrix.
25. In the course of the hearing, the Bench had put a pointed query to the learned counsel for the State as to whether the mobile phone of the appellant or the photographs allegedly taken by the appellant of the prosecutrix while she was bathing and changing clothes were recovered to which the reply on instructions was that those were neither recovered nor seized. Further, the stamp paper dated 28-9-2016 as well as the cheque dated 16-6- 2017 have not been seized. The jewellery allegedly given by the prosecutrix to the appellant has also not -8- NC: 2025:KHC:9749 CRL.RP No. 1031 of 2018 been seized. The stamp paper dated 7-7-2017 has not been seized. In the absence of such materials, it would be virtually impossible for the prosecution to prove the charges of rape and intimidation against the appellant.
26. We have carefully gone through the definition of "rape" provided under Section 375IPC. We have also gone through the provisions of Section 376(2)(n)IPC, which deals with the offence of rape committed repeatedly on the same woman. Section 375IPC defines "rape" by a man if he does any of the acts in terms of clauses (a) to (d) under the seven descriptions mentioned therein. As per the second description, a man commits rape if he does any of the acts as mentioned in clauses (a) to (d) without the consent of the woman. Consent has been defined in Explanation 2 to mean an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. However, the proviso thereto clarifies that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.
27. Having regard to the above and in the overall conspectus of the case, we are of the view -9- NC: 2025:KHC:9749 CRL.RP No. 1031 of 2018 that the physical relationship between the prosecutrix and the appellant cannot be said to be against her will and without her consent. On the basis of the available materials, no case of rape or of criminal intimidation is made out.
28. The learned counsel for the respondents had placed considerable reliance on the provisions of Section 90IPC, particularly on the expression "under a misconception of fact". Section 90IPC reads thus:
"90. Consent known to be given under fear or misconception.--A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.--if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.--unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
29. Section 90IPC says that a consent is not such a consent as it is intended by any section of IPC, if the
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NC: 2025:KHC:9749 CRL.RP No. 1031 of 2018 consent is given by a person under the fear of injury or under a misconception of fact.
30. In Dhruvaram Murlidhar Sonar v. State of Maharashtra [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] , this Court after examining Section 90IPC held as follows : (SCC p. 198, para 17) "17. Thus, Section 90 though does not define "consent", but describes what is not "consent". Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances."
31. This Court also examined the interplay between Section 375IPC and Section 90IPC in the context of consent in Pramod Suryabhan Pawar v. State of Maharashtra [Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 : (2019) 3 SCC (Cri) 903] , and held that consent with respect to Section
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NC: 2025:KHC:9749 CRL.RP No. 1031 of 2018 375IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action (or inaction), consents to such action. After deliberating upon the various case laws, this Court summed up the legal position as under : (SCC p. 620, para 18) "18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
32. The learned counsel for the respondents had relied heavily on the expression "misconception of fact". However, according to us, there is no misconception of fact here. Right from the inception, it is the case of the prosecution that while the appellant was insisting on
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NC: 2025:KHC:9749 CRL.RP No. 1031 of 2018 having a relationship with the prosecutrix, the later had turned down the same on the ground that the appellant was the friend of her younger brother and a distant relative of her jijaji. That apart, according to the prosecutrix, the appellant was younger to her. Nonetheless, the prosecutrix had accompanied the appellant to a temple, where she had voluntarily taken bath under a waterfall. Her allegation that the appellant had surreptitiously taken photographs of her while she was bathing and later on changing clothes and was blackmailing her with such photographs remain unfounded in the absence of seizure of such photographs or the mobile phone on which such photographs were taken by the appellant. If, indeed, she was under some kind of threat from the appellant, it defies any logic, when the prosecutrix accompanied the appellant to Gwalior from Dabra, a journey which they had made together by train. On reaching Gwalior, she accompanied the appellant on a scooter to a rented premises at Anupam Nagar, where she alleged that the appellant had forced himself upon her. But she did not raise any alarm or hue and cry at any point of time. Rather, she returned back to Dabra along with the appellant. The relationship did not terminate there. It continued even thereafter. It is the case of the prosecutrix herself that at one point of time the family members of the two had met to discuss about their marriage but nothing final could be reached regarding
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NC: 2025:KHC:9749 CRL.RP No. 1031 of 2018 their marriage. It was only thereafter that the FIR was lodged.
33. As already pointed out above, neither the affidavit nor stamp papers have been recovered or seized by the police; so also the jewellery. The alleged cheque of the prosecutrix's mother given to the appellant or the bank statement to indicate transfer of such money have not been gathered by the police. In the absence of such materials, the entire substratum of the prosecutrix's case collapses. Thus, there is hardly any possibility of conviction of the appellant. As a matter of fact, it is not even a case which can stand trial. It appears to be a case of a consensual relationship which had gone sour leading to lodging of FIR. In the circumstances, the Court is of the view that compelling the appellant to face the criminal trial on these materials would be nothing but an abuse of the process of the court, result of the trial being a foregone conclusion.
34. From the factual matrix of the case, the following relevant features can be culled out:
(i) the relationship between the appellant and the prosecutrix was of a consensual nature;
(ii) the parties were in a relationship for a period of almost two years; and
(iii) though there were talks between the parties and their family members regarding
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NC: 2025:KHC:9749 CRL.RP No. 1031 of 2018 marriage, the same did not fructify leading to lodging of FIR."
12. Applying the principles laid down in the above case to the facts and circumstances of this case and also considering the entire materials on record, I am of the view that the learned Sessions Judge, after meticulously examining the entire material on record, passed a well reasoned order which does not call for any interference by this Court. Against this backdrop, I proceed to pass the following:
ORDER The Revision Petition is dismissed being devoid of merits.
SD/-
(RAJESH RAI K) JUDGE VM List No.: 1 Sl No.: 26