The High Court
Case Details
- 1 - NC: 2025:KHC:13181 CRL.RP No. 1045 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 1045 OF 2018 BETWEEN: STATE OF KARNATAKA BY KENGERI POLICE STATION, BANGALORE. REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE-1. (BY MR. RAJATH SUBRAMANYA, HCGP) …PETITIONER AND: SRINIVASAMURTHY @ PUNITH S/O VENUGOPAL, AGED ABOUT 25 YEARS R/A NO.06, 6TH MAIN, 7TH CROSS, DODDAGOLLARAHATTI, NAGADEVANAHALLI, KENGERI SATELLITE TOWN, BENGALURU. 560 060. Digitally signed by MAYAGAIAH VINUTHA Location: HIGH COURT OF KARNATAKA (RESPONDENT SERVED AND UNREPRESENTED) …RESPONDENT THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO ALLOW THE ABOVE CRL.RP AND SET ASIDE THE AFORESAID ORDER DATED 11.04.2018, IN S.C.NO.864/2017 ON THE FILE OF THE COURT OF LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-54). THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 2 - NC: 2025:KHC:13181 CRL.RP No. 1045 of 2018 CORAM: HON'BLE MR JUSTICE RAJESH RAI K ORAL ORDER The State has preferred this revision petition against the order passed in S.C.No.864/2017 dated 11.04.2018 by the LIII Addl. City Civil and Sessions Judge, Bengaluru (CCH-54) of Cr.P.C. and discharged the respondent/accused in Crime (hereinafter referred to as the 'learned Sessions Judge'), whereby the learned Sessions Judge allowed the discharge application filed by the respondent/accused under Section 227 No.135/2017 for the offences punishable under Sections 376, and 506 of IPC. 2. The factual matrix of the prosecution case is that: On 01.04.2017, the complainant-CW.1 lodged a complaint against the accused alleging that herself and the accused were classmates during their school days. The accused loved and married her younger sister and started residing near her house. She married to a person who was medically unfit for the consummation of the marriage. This fact was within the knowledge of the accused; taking undue advantage of the same, accused entered the house of the complainant and - 3 - NC: 2025:KHC:13181 CRL.RP No. 1045 of 2018 consummated her by threatening her that, if she reveals the same to anybody, he would kill her sister and her husband. Another day, when she was alone in her house, the accused again entered her house and consummated her. Following which, she told the accused that she would lodge the complaint against him; the accused threatened her that he would murder her sister and her spouse. Later, during the month of January 2017, the accused once again insisted the complainant to have sexual intercourse with him and started blackmailing her that he recorded a video of sexual activity with her and if she gives any complaint, he would forward the same to her husband's phone. Against this backdrop, she lodged the complaint against the accused. On the strength of the said complaint, the
Legal Reasoning
complainant-Police registered the FIR and on completion of the investigation, filed charge sheet against the accused for the aforementioned offences. 3. On committal of the case before the learned Sessions Judge, the learned Sessions Judge secured the presence of the respondent/accused and took cognizance of the offence. Following this, the learned counsel for the respondent/accused filed an application under Section 227 of - 4 - NC: 2025:KHC:13181 CRL.RP No. 1045 of 2018 Cr.P.C to discharge and absolve the respondent/accused from the charges leveled against him. 4. The learned Sessions Judge after hearing the counsel for the respondent/accused and the learned Public Prosecutor allowed the application filed by the respondent/accused under Section 227 of Cr.P.C and discharged him for the aforementioned offences. The said order is challenged by the State in this revision petition. 5. I have heard the
Legal Reasoning
learned HCGP Sri. Rajath Subramanyam for the State. Though the respondent served, but remained unrepresented. 6. The primary contention of the learned HCGP is that the Sessions Court has erred while discharging the accused solely on the ground that the offence under Section 375 of IPC does not attract in the case since the sexual act been committed is a consensual act. According to the learned HCGP, this aspect must be proved in an elaborate trail by examining the material witnesses including the victim. Instead, the learned Sessions Judge hastily discharged the accused by allowing the application under Section 227 of Cr.P.C. He further - 5 - NC: 2025:KHC:13181 CRL.RP No. 1045 of 2018 submitted that, the complaint by the victim and the statements of other witnesses prima facie make out a case against the accused/respondent. Accordingly, he prays to allow the revision petition by setting aside the order passed by the learned Sessions Judge. 7. It could be gathered from the records, the accused and the victim are known to each other since the accused had married her sister. Taking undue advantage of the same, he visited the house of the victim and consummated her. Thereafter by putting her in to fear that if she reveals the same he would do away with the life of her sister and her husband. According to victim, the initial incident committed six months prior to the date of lodging the complaint. Despite, she failed to reveal the same either to her husband or to any other person for a period of six months. In between, the accused consummated the victim frequently at her resident. In such circumstances, it could be gathered that the victim was consenting party. Nevertheless, she is a major and she is aware of the consequence of the said act. Further it is case of the prosecution that, the accused threatened the victim that he would forward her sexual video recorded by him to her - 6 - NC: 2025:KHC:13181 CRL.RP No. 1045 of 2018 husband's phone. However, the Police neither seized the mobile phone nor found any such obscene video or photos. In such circumstances, the Hon'ble Apex Court in the case of Shiv Prathap Singh Rana V/s State of Madhya Pradesh and another reported in (2024) 8 SCC 313 held in paragraphs No.26 to 34 as under. through "26. We have carefully gone 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 to mean an in Explanation 2 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. the physical 27. Having regard to the above and in the overall conspectus of the case, we are of the view that 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. relationship between - 7 - NC: 2025:KHC:13181 CRL.RP No. 1045 of 2018 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 a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence or of misconception; or injury, under such fear or of 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 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 - 8 - NC: 2025:KHC:13181 CRL.RP No. 1045 of 2018 or 375 coerced requires is not “consent”. Consent may be express or implied, 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 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.” of consent in Pramod 31. This Court also examined the interplay between Section 375IPC and Section 90IPC in the Suryabhan context 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 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 the proposed act. To establish whether the a “consent” “misconception of fact” arising out of a towards vitiated was by - 9 - NC: 2025:KHC:13181 CRL.RP No. 1045 of 2018 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 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. there. It The relationship did not continued even thereafter. It is the case of the terminate - 10 - NC: 2025:KHC:13181 CRL.RP No. 1045 of 2018 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 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 a relationship for a period of almost two years; and in (iii) though talks between the parties and their family members regarding marriage, the same did not fructify leading to lodging of FIR. there were - 11 - NC: 2025:KHC:13181 CRL.RP No. 1045 of 2018 8. On applying the principles laid down by the Hon'ble Apex Court in the above case to the facts and circumstances of this case, I am of the considered view that the prosecution has failed to make out a case against the respondent/accused for the offences to frame charges. The learned Sessions Judge after meticulously examining the entire materials placed before her passed a well reasoned order and the same does not call for any interference at the hands of this Court. Against this backdrop, the learned Sessions Judge has rightly discharged the respondent/accused for the charges leveled against him. Accordingly, I proceed to pass the following:
Decision
ORDER The Revision Petition is dismissed being devoid of merits. Sd/- (RAJESH RAI K) JUDGE HKV List No.: 1 Sl No.: 19