Karnataka High Court
Mr. Kiran Y vs The State Of Karnataka on 22 June, 2022
Bench: M.Nagaprasanna
-1-
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 2746 OF 2020
C/W
CRIMINAL PETITION NO. 2844 OF 2020
IN CRL.P.2746 OF 2020
BETWEEN:
MR. KIRAN Y
S/O YOGENDRA NAYAK
AGED 29 YEARS
R/AT YENITHADKA HOUSE
KOLLA VILLAGE
K C FARM HOUSE
KADABA HOBLI
Digitally KADABA TALUK
signed by
PADMAVATHI
BK
D K DISTRICT-574221.
Location:
High Court of
Karnataka ...PETITIONER
(BY SHRI S. RAJASHEKAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
KAMAKSHIPALYA POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENGALURU-560001.
-2-
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
2. SMT. YOGASHREE H C
D/O SRI. CHANGAPPA H N
AGED ABOUT 28 YEARS
R/AT NO.77, GANAPATHI TEMPLE ROAD,
SANNAKKIBAILU KAMAKSHIPALYA
BENGALURU-560079.
...RESPONDENTS
(BY SHRI. K.S. ABHIJITH, HCGP FOR R1;
SHRI V. KRISHNAMURTHY, ADVOCATE FOR R2 (ABSENT)
THIS CRIMINAL PETITION FILED UNDER SECTION 482 OF
CR.P.C PRAYING TO QUASH THE ORDER OF TAKING
COGNIZANCE DATED 20TH JANUARY, 2020 PURSUANT TO
FILING OF CHARGE SHEET IN CR.NO.295 OF 2019 OF
KAMAKSHIPALYA POLICE STATION, ON THE FILE OF V
ADDL.C.M.M., BENGALURU FOR THE ALLEGED OFFENCES P/U/S
354C, 506, 376, 504 AND 417 R/W 34 OF IPC BY ALLOWING
THIS PETITION; AND ETC.
IN CRL.P.2844 OF 2020
BETWEEN:
ANAND KUMAR
S/O RAJAN
AGED 38 YEARS
R/AT NO.8, 5TH 'A' CROSS
RMV 2ND STAGE, BOOPASANDRA
BENGALURU -560 094
...PETITIONER
(BY SHRI S. RAJASHEKAR, ADVOCATE)
-3-
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
AND:
1. THE STATE OF KARNATAKA
KAMAKSHIPALYA POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA
BENGALURU-560001.
2. SMT. YOGASHREE H C
D/O SRI CHANGAPPA H N
AGED ABOUT 28 YEARS
R/AT NO.77, GANAPATHI TEMPLE ROAD,
SANNAKKIBAILU KAMAKSHIPALYA
BENGALURU-560079.
...RESPONDENTS
(BY SHRI K.S. ABHIJITH, HCGP FOR R1;
SHRI V. KRISHNAMURTHY, ADVOCATE FOR R2 (ABSENT)
THIS CRIMINAL PETITION FILED UNDER SECTION 482 OF
CR.P.C PRAYING TO QUASH THE ORDER OF TAKING
COGNIZANCE DATED 20TH JANJUARY, 2020 PURSUANT TO
FILING OF CHARGE SHEET IN CR.NO.295 OF 2019 OF
KAMAKSHIPALYA POLICE STATION, ON THE FILE OF V
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE COURT,
BENGALURU FOR THE ALLEGED OFFENCES P/U/S 354C, 506,
376, 504 AND 417 R/W 34 OF IPC BY ALLOWING THIS
PETITION; AND ETC.
THESE PETITIONS COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:
-4-
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
ORDER
Criminal Petition No.2746 of 2020 is filed by the accused
No.1 arising out of Crime No.295 of 2019 for offences
punishable under Section 354C, 506, 376, 504, 417 and 34 of
the Indian Penal Code.
2. Heard Sri S. Rajashekar, learned counsel for the
petitioner and Sri K.S. Abhijith, learned High Court Government
Pleader for respondent No.1.
3. The brief facts leading to the filing of the present
petitions, as projected by the prosecution, are as follows:
4. The second respondent is the complainant. Accused
No.1-petitioner and the second respondent, were in love and
had had a relationship for over five years prior to registration of
the complaint. On an allegation that the petitioner refused to
adhere to the promise of marriage that he had made for all the
five years of relationship and had had physical contact with the
petitioner on such promise of marriage, the complainant
registers a complaint on 17th August, 2019. The complaint
becomes crime in Crime No.295 of 2019 for the afore-quoted
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
offences. The police, after investigation, filed a charge sheet
against the petitioner for offences punishable under Section
354C, 417, 376, 504, 506 and 34 of the Indian Penal Code.
The concerned Court, by an order dated 20th January, 2020,
takes cognizance of the police report/charge sheet filed and
issues summons to the petitioner. It is at that juncture, the
petitioner has knocked the doors of this Court in the subject
criminal petition No.2746 of 2010.
5. Criminal Petition No.2844 of 2020 is filed by accused
No.2 in the same crime. The allegation against the accused
No.2 in the subject petition is that he is the brother-in-law of
the accused No.1-petitioner in the companion petition, and he
had assured the complainant that he would get the accused
No.1 and her married and he has also breached the promise of
marriage and has committed offences that would become
punishable under Sections 417, 354C, 504, 506 and 376 of the
Indian Penal Code. The learned Magistrate takes cognizance of
the offences as is alleged against accused No.1, against the
accused No.2 as well. It is this order of taking cognizance and
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
issuance of summons that drives the petitioner to this Court in
the subject petition.
6. The learned counsel appearing for the petitioner Sri S.
Rajashekar, would contend with vehemence that the allegation
against the accused No.1 is that he has breached the promise
of marriage and had such physical relationship with the
complainant for about six years prior to the registration of
complaint. With this being the allegation, he submits that the
breach of promise of marriage could not be made an offence
punishable under Section 376 or even 417 of the Indian Penal
Code. The learned counsel would place reliance upon the
judgment of the Apex Court in the case of DHRUVARAM
MURLIDHAR SONAR v. THE STATE OF MAHARASHTRA reported
in (2019)18 SCC 191.
7. Counsel for the complainant has remained absent
throughout.
8. This Court, after hearing the learned counsel for the
petitioner, had passed the following order on 15th June, 2022:
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
"Heard Sri S. Rajashekar, learned counsel
appearing for the petitioner.
There is no representation on behalf of respondent
No.2.
As a last chance, awaiting appearance of the
learned counsel for the respondent No.2, list the matter
on 22.06.2022.
In the event, there is no representation on behalf
of respondent No.2, the matter would be taken up and
considered in his absence.
Interim order granted earlier, in
Crl.P.No.2844/2020, is extended till the disposal of the
petition."
9. In the light of the said order, matter is taken up for
consideration in the absence of the learned counsel appearing
for the second respondent, as he has remained absent.
10. The learned High Court Government Pleader would
however, seek to justify the action of registration of crime and
filing of the final report pursuant to the investigation. It is his
contention that there was no intention of the petitioner to ever
marry the complaint and on a false promise of marriage, he has
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
had sexual relationship with the complaint and therefore, the
matter requires trial and seeks dismissal of the petition.
11. I have given my anxious consideration to the
submission made by the respective learned counsel appearing
for the parties and have perused the material on record. Since
the entire issue springs from the complaint so registered by the
complaint, it is germane to notice the preamble of the
complaint itself:
"«µÀAiÀÄ:- £À£ÀߣÀÄß ¸ÀĪÀiÁgÀÄ 5 ªÀµÀðUÀ½AzÀ ¦æÃw¹ ªÀÄzÀĪÉ
ªÀiÁrPÉƼÀÄîvÉÛãÉAzÀÄ £ÀA©¹ £À£Àß eÉÆvÉ zÉÊ»PÀ ¸ÀA§AzsÀªÀ£ÀÄß ¨É¼É¹,
FUÀ eÁwAiÀÄ «ZÁgÀzÀ°è £Á£ÀÄ ªÀÄzÀÄªÉ ªÀiÁrPÉƼÀÄîªÀÅ¢®èªÉAzÀÄ
ºÉý £À£ÀUÉ ªÉÆøÀ ªÀiÁrzÀ QgÀuï ªÉÊ 30 ªÀµÀð ©£ï AiÉÆÃVÃAzÀæ
£ÁAiÀÄÌ ºÁUÀÆ CªÀ£À vÁ¬Ä ¸ÀÄ«ÄvÀæªÀÄä PÉÆÃA AiÉÆÃVÃAzÀæ £ÁAiÀÄÌ
CªÀgÀ ºÀwÛgÀzÀ ¸ÀA§A¢ü D£ÀAzï PÀĪÀiÁgÀ gÀªÀgÀ «gÀÄzÀÞ zÀÆgÀÄ. "
12. The subject of the complaint is that for five years,
the accused No.1 and the complaint were in love and had had
physical relationship on account of being in love and were living
together for some time and finally the accused No.1 has
breached the promise of marriage and therefore, he is to be
proceeded against for offence punishable under Section 376 of
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
Indian Penal Code. The entire narration in the complaint is
against two people. One the accused No.1 with whom the
complainant had a live-in relationship; and the other, the
brother-in-law of the accused No.1, who had promised that he
would get the accused No.1 and the complainant married. Both
of them are alleged to have breached the promise of marriage.
After registration of the complaint, police take up investigation
and have filed final report for the aforestated offences against
the accused No.1 and 2. The learned Magistrate takes
cognizance of offence against both the accused in common.
Therefore, accused No.2 is also now alleged for offences
punishable under Section 376 of the Indian Penal Code. There
cannot be any better illustration for non-application of mind by
the learned Magistrate taking cognizance of offences in a
cavalier manner, even otherwise the issue stands covered by
the judgments of the Apex Court in the case of, 1) PRAMOD
SURYABHAN PAWAR v. STATE OF MAHARASHTRA reported in
(2019)9 SCC 608; and 2) DHRUVARAM MURALIDHAR SONAR v.
STATE OF MAHARASHTRA reported in (2019)18 SCC 191.
- 10 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
The Apex Court, while delineating inter-play between
promise of marriage and allegation of rape, in the case of
PRAMOD SURYABHAN PAWAR (supra), has held as follows:
"14. In the present case, the "misconception of
fact" alleged by the complainant is the appellant's
promise to marry her. Specifically in the context of a
promise to marry, this Court has observed that there is a
distinction between a false promise given on the
understanding by the maker that it will be broken, and
the breach of a promise which is made in good faith but
subsequently not fulfilled. In Anurag Soni v. State of
Chhattisgarh [Anurag Soni v. State of Chhattisgarh,
(2019) 13 SCC 1: 2019 SCC OnLine SC 509], this Court
held:
"12. The sum and substance of the
aforesaid decisions would be that if it is
established and proved that from the inception
the accused who gave the promise to the
prosecutrix to marry, did not have any intention
to marry and the prosecutrix gave the consent for
sexual intercourse on such an assurance by the
accused that he would marry her, such a consent
can be said to be a consent obtained on a
misconception of fact as per Section 90 IPC and,
in such a case, such a consent would not excuse
the offender and such an offender can be said to
have committed the rape as defined under
Sections 375 IPC and can be convicted for the
offence under Section 376 IPC."
- 11 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
Similar observations were made by this Court in Deepak
Gulati v. State of Haryana (2013)7 SCC 675: (2013) 3
SCC (Cri) 660] (Deepak Gulati):
"21. ... There is a distinction between the
mere breach of a promise, and not fulfilling a
false promise. Thus, the court must examine
whether there was made, at an early stage a false
promise of marriage by the accused;"
15. In Yedla Srinivasa Rao v. State of A.P.
(2006)11 SCC 615:(2007) 1 SCC (Cri) 557] the accused
forcibly established sexual relations with the
complainant. When she asked the accused why he
had spoiled her life, he promised to marry her. On
this premise, the accused repeatedly had sexual
intercourse with the complainant. When the
complainant became pregnant, the accused refused to
marry her. When the matter was brought to the
panchayat, the accused admitted to having had sexual
intercourse with the complainant but subsequently
absconded. Given this factual background, the Court
observed:
"10. It appears that the intention of the
accused as per the testimony of PW 1 was, right
from the beginning, not honest and he kept on
promising that he will marry her, till she became
pregnant. This kind of consent obtained by the
accused cannot be said to be any consent because
she was under a misconception of fact that the
accused intends to marry her, therefore, she had
submitted to sexual intercourse with him. This fact
is also admitted by the accused that he had
- 12 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
committed sexual intercourse which is apparent
from the testimony of PWs 1, 2 and 3 and before
the panchayat of elders of the village. It is more
than clear that the accused made a false promise
that he would marry her. Therefore, the intention
of the accused right from the beginning was not
bona fide and the poor girl submitted to the lust of
the accused, completely being misled by the
accused who held out the promise for marriage.
This kind of consent taken by the accused with
clear intention not to fulfil the promise and
persuading the girl to believe that he is going to
marry her and obtained her consent for the sexual
intercourse under total misconception, cannot be
treated to be a consent."
16. Where the promise to marry is false and
the intention of the maker at the time of making the
promise itself was not to abide by it but to deceive
the woman to convince her to engage in sexual
relations, there is a "misconception of fact" that
vitiates the woman's "consent". On the other hand,
a breach of a promise cannot be said to be a false
promise. To establish a false promise, the maker of
the promise should have had no intention of
upholding his word at the time of giving it. The
"consent" of a woman under Section 375 is vitiated
on the ground of a "misconception of fact" where
such misconception was the basis for her choosing
to engage in the said act. In Deepak Gulati [Deepak
Gulati v. State of Haryana, (2013) 7 SCC 675:(2013) 3
SCC (Cri) 660] this Court observed: (SCC pp. 682-84,
paras 21 & 24)
- 13 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
"21. ... There is a distinction between the
mere breach of a promise, and not fulfilling a false
promise. Thus, the court must examine whether
there was made, at an early stage a false promise
of marriage by the accused; and whether the
consent involved was given after wholly
understanding the nature and consequences of
sexual indulgence. There may be a case where the
prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused,
and not solely on account of misrepresentation
made to her by the accused, or where an accused
on account of circumstances which he could not
have foreseen, or which were beyond his control,
was unable to marry her, despite having every
intention to do so. Such cases must be treated
differently.
***
24. Hence, it is evident that there must be
adequate evidence to show that at the relevant
time i.e. at the initial stage itself, the accused had
no intention whatsoever, of keeping his promise to
marry the victim. There may, of course, be
circumstances, when a person having the best of
intentions is unable to marry the victim owing to
various unavoidable circumstances. The "failure to
keep a promise made with respect to a future
uncertain date, due to reasons that are not very
clear from the evidence available, does not always
amount to misconception of fact. In order to come
within the meaning of the term "misconception of
fact", the fact must have an immediate relevance".
Section 90 IPC cannot be called into aid in such a
situation, to pardon the act of a girl in entirety,
and fasten criminal liability on the other, unless
the court is assured of the fact that from the very
- 14 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
beginning, the accused had never really intended
to marry her."
(emphasis supplied)
17. In Uday v. State of Karnataka, (2003) 4
SCC 46 : 2003 SCC (Cri) 775] the complainant was a
college-going student when the accused promised
to marry her. In the complainant's statement, she
admitted that she was aware that there would be
significant opposition from both the complainant's
and accused's families to the proposed marriage.
She engaged in sexual intercourse with the accused
but nonetheless kept the relationship secret from
her family. The Court observed that in these
circumstances the accused's promise to marry the
complainant was not of immediate relevance to the
comp l ain an t' s d ecis ion to en g a ge in s ex u al
intercourse with the accused, which was motivated
by other factors: (SCCp.58, para 25)
"25. There is yet another difficulty
which faces the prosecution in this case. In a
case of this nature two conditions must be
fulfilled for the application of Section 90
IPC. Firstly, it must be shown that the
consent was given under a misconception of
fact. Secondly, it must be proved that the
person who obtained the consent knew, or
had reason to believe that the consent was
given in consequence of such misconception.
We have serious doubts that the promise to
marry induced the prosecutrix to consent to
having sexual intercourse with the appellant.
- 15 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
She knew, as we have observed earlier, that
her marriage with the appellant was difficult
on account of caste considerations. The
proposal was bound to meet with stiff
opposition from members of both families.
There was therefore a distinct possibility, of
which she was clearly conscious, that the
marriage may not take place at all despite the
promise of the appellant. The question still
remains whether even if it were so, the
appellant knew, or had reason to believe,
that the prosecutrix had consented to having
sexual intercourse with him only as a
consequence of her belief, based on his
promise, that they will get married in due
course. There is hardly any evidence to prove
this fact. On the contrary, the circumstances
of the case tend to support the conclusion
that the appellant had reason to believe that
the consent given by the prosecutrix was the
result of their deep love for each other. It is
not disputed that they were deeply in
love. They met often, and it does appear that
the prosecutrix permitted him liberties which,
if at all, are permitted only to a person with
whom one is in deep love. It is also not
without significance that the prosecutrix
stealthily went out with the appellant to a
lonely place at 12 o'clock in the night. It
usually happens in such cases, when two
young persons are madly in love, that they
promise to each other several times that
come what may, they will get married."
(emphasis supplied)
18. To summarise the legal position that
emerges from the above cases, the "consent" of a
- 16 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
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."
13. The Apex Court, a little later in the case of
DHRUVARAM MURLIDHAR SONAR (supra), while following the
earlier judgment of the Apex Court in the case of UDAY v.
STATE OF KARNATAKA reported in (2003)4 SCC 46 and DEELIP
SINGH v. STATE OF BIHAR reported in (2005)1 SCC 88, has
held as follows:
"18. In Uday v. State of Karnataka (2003) 4 SCC
46 : 2003 SCC (Cri) 775, this Court was considering a
case where the prosecutrix, aged about 19 years, had
given consent to sexual intercourse with the accused with
whom she was deeply in love, on a promise that he would
marry her on a later date. The prosecutrix continued to
meet the accused and often had sexual intercourse and
became pregnant. A complaint was lodged on failure of
the accused to marry her. It was held that consent cannot
- 17 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
be said to be given under a misconception of fact. It was
held thus: (SCC pp. 56-57, paras 21 & 23)
"21. It therefore appears that the consensus
of judicial opinion is in favour of the view that the
consent given by the prosecutrix to sexual
intercourse with a person with whom she is deeply
in love on a promise that he would marry her on a
later date, cannot be said to be given under a
misconception of fact. A false promise is not a fact
within the meaning of the Code. We are inclined to
agree with this view, but we must add that there is
no straitjacket formula for determining whether
consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given
under a misconception of fact. In the ultimate
analysis, the tests laid down by the courts provide
at best guidance to the judicial mind while
considering a question of consent, but the court
must, in each case, consider the evidence before it
and the surrounding circumstances, before
reaching a conclusion, because each case has its
own peculiar facts which may have a bearing on
the question whether the consent was voluntary,
or was given under a misconception of fact. It
must also weigh the evidence keeping in view the
fact that the burden is on the prosecution to prove
each and every ingredient of the offence, absence
of consent being one of them.
***
23. Keeping in view the approach that the
court must adopt in such cases, we shall now
proceed to consider the evidence on record. In the
instant case, the prosecutrix was a grown-up girl
studying in a college. She was deeply in love with
the appellant. She was, however, aware of the fact
- 18 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
that since they belonged to different castes,
marriage was not possible. In any event the
proposal for their marriage was bound to be
seriously opposed by their family members. She
admits having told so to the appellant when he
proposed to her the first time. She had sufficient
intelligence to understand the significance and
moral quality of the act she was consenting to.
That is why she kept it a secret as long as she
could. Despite this, she did not resist the overtures
of the appellant, and in fact succumbed to them.
She thus freely exercised a choice between
resistance and assent. She must have known the
consequences of the act, particularly when she
was conscious of the fact that their marriage may
not take place at all on account of caste
considerations. All these circumstances lead us to
the conclusion that she freely, voluntarily and
consciously consented to having sexual intercourse
with the appellant, and her consent was not in
consequence of any misconception of fact."
19. In Deelip Singh v. State of Bihar, (2005)1 SCC
88 : 2005 SCC (Cri) 253] , the Court framed the following
two questions relating to consent : (SCC p. 104, para 30)
(1) Is it a case of passive submission in
the face of psychological pressure exerted or
allurements made by the accused or was it a
conscious decision on the part of the
prosecutrix knowing fully the nature and
consequences of the act she was asked to
indulge in?
(2) Whether the tacit consent given by
the prosecutrix was the result of a
misconception created in her mind as to the
intention of the accused to marry her?
- 19 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
In this case, the girl lodged a complaint with
the police stating that she and the accused were
neighbours and they fell in love with each other.
One day in February 1988, the accused forcibly
raped her and later consoled her by saying that he
would marry her. She succumbed to the entreaties
of the accused to have sexual relations with him, on
account of the promise made by him to marry her,
and therefore continued to have sex on several
occasions. After she became pregnant, she revealed
the matter to her parents. Even thereafter, the
intimacy continued to the knowledge of the parents
and other relations who were under the impression
that the accused would marry the girl, but the
accused avoided marrying her and his father took
him out of the village to thwart the bid to marry.
The efforts made by the father of the girl to
establish the marital tie failed. Therefore, she was
constrained to file the complaint after waiting for
some time.
20. With this factual background, the Court
held that the girl had taken a conscious decision,
after active application of mind to the events that
had transpired. It was further held that at best, it is
a case of breach of promise to marry rather than a
case of false promise to marry, for which the
accused is prima facie accountable for damages
under civil law. It was held thus : (Deelip Singh v. State
- 20 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253] , SCC p.
106, para 35)
"35. The remaining question is whether on
the basis of the evidence on record, it is
reasonably possible to hold that the accused with
the fraudulent intention of inducing her to sexual
intercourse, made a false promise to marry. We
have no doubt that the accused did hold out the
promise to marry her and that was the
predominant reason for the victim girl to agree to
the sexual intimacy with him. PW 12 was also too
keen to marry him as she said so specifically. But
we find no evidence which gives rise to an
inference beyond reasonable doubt that the
accused had no intention to marry her at all from
the inception and that the promise he made was
false to his knowledge. No circumstances emerging
from the prosecution evidence establish this fact.
On the other hand, the statement of PW 12 that
"later on", the accused became ready to marry her
but his father and others took him away from the
village would indicate that the accused might have
been prompted by a genuine intention to marry
which did not materialise on account of the
pressure exerted by his family elders. It seems to
be a case of breach of promise to marry rather
than a case of false promise to marry. On this
aspect also, the observations of this Court in Uday
case [Uday v. State of Karnataka, (2003) 4 SCC
46: 2003 SCC (Cri) 775] at para 24 come to the
aid of the appellant."
21. In Deepak Gulati v. State of Haryana, (2013)7
SCC 675:(2013) 3 SCC (Cri) 660], the Court has drawn a
distinction between rape and consensual sex. This is a
case of a prosecutrix aged 19 years at the time of the
- 21 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
incident. She had an inclination towards the accused. The
accused had been giving her assurances of the fact that
he would get married to her. The prosecutrix, therefore,
left her home voluntarily and of her own free will to go
with the accused to get married to him. She called the
accused on a phone number given to her by him, to ask
him why he had not met her at the place that had been
pre-decided by them. She also waited for him for a long
time, and when he finally arrived, she went with him to a
place called Karna Lake where they indulged in sexual
intercourse. She did not raise any objection at that stage
and made no complaints to anyone. Thereafter, she went
to Kurukshetra with the accused, where she lived with his
relatives. Here too, the prosecutrix voluntarily became
intimate with the accused. She then, for some reason,
went to live in the hostel at Kurukshetra University
illegally, and once again came into contact with the
accused at Birla Mandir there. Thereafter, she even
proceeded with the accused to the old bus-stand in
Kurukshetra, to leave for Ambala so that the two of them
could get married at the court in Ambala. At the bus
station, the accused was arrested by the police. The Court
held that the physical relationship between the parties
had clearly developed with the consent of the prosecutrix
as there was neither a case of any resistance nor had she
raised any complaint anywhere at any time, despite the
fact that she had been living with the accused for several
days and had travelled with him from one place to
another. The Court further held that it is not possible to
- 22 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
apprehend the circumstances in which a charge of
deceit/rape can be levelled against the accused.
****
23. Thus, there is a clear distinction between
rape and consensual sex. The court, in such cases,
must very carefully examine whether the
complainant had actually wanted to marry the
victim or had mala fide motives and had made a
false promise to this effect only to satisfy his lust,
as the latter falls within the ambit of cheating or
deception. There is also a distinction between mere
breach of a promise and not fulfilling a false
promise. If the accused has not made the promise
with the sole intention to seduce the prosecutrix to
indulge in sexual acts, such an act would not
amount to rape. There may be a case where the
prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused and
not solely on account of the misconception created
by accused, or where an accused, on account of
circumstances which he could not have foreseen or
which were beyond his control, was unable to
marry her despite having every intention to do.
Such cases must be treated differently. If the complainant
had any mala fide intention and if he had clandestine
motives, it is a clear case of rape. The acknowledged
consensual physical relationship between the parties
would not constitute an offence under Section 376 IPC.
- 23 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
24. In the instant case, it is an admitted position
that the appellant was serving as a Medical Officer in the
Primary Health Centre and the complainant was working
as an Assistant Nurse in the same health centre and that
she is a widow. It was alleged by her that the appellant
informed her that he is a married man and that he has
differences with his wife. Admittedly, they belong to
different communities. It is also alleged that the
accused/appellant needed a month's time to get their
marriage registered. The complainant further states that
she had fallen in love with the appellant and that she
needed a companion as she was a widow. She has
specifically stated that "as I was also a widow and I
was also in need of a companion, I agreed to his
proposal and since then we were having love affair
and accordingly we started residing together. We
used to reside sometimes at my home whereas
sometimes at his home". Thus, they were living
together, sometimes at her house and sometimes at
the residence of the appellant. They were in a
relationship with each other for quite some time
and enjoyed each other's company. It is also clear
that they had been living as such for quite some
time together. When she came to know that the
appellant had married some other woman, she
lodged the complaint. It is not her case that the
complainant has forcibly raped her. She had taken a
conscious decision after active application of mind
to the things that had happened. It is not a case of
- 24 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
a passive submission in the face of any
psychological pressure exerted and there was a
tacit consent and the tacit consent given by her was
not the result of a misconception created in her
mind. We are of the view that, even if the
allegations made in the complaint are taken at their
face value and accepted in their entirety, they do
not make out a case against the appellant. We are
also of the view that since the complainant has
failed to prima facie show the commission of rape,
the complaint registered under Section 376(2)(b)
cannot be sustained."
14. On the bed rock principles laid down by the Apex
Court, if the case at hand is considered, the unmistakable
inference would be that proceedings against the petitioner for
offences punishable under Section 376 cannot be sustained for
the reason that the petitioner and the respondent/complainant,
as observed hereinabove, were in love and had a live-in
relationship for more than 5 years. The narration in the
complaint is also to the effect that sincere efforts were made
for getting the marriage performed but due to certain caste
equations, the marriage could not take place, the case is thus a
breach of promise of marriage.
- 25 -
CRL.P No. 2746 of 2020
C/W CRL.P No. 2844 of 2020
15. In the light of the uncontroverted facts in case at
hand, the narration in the complaint, the summary of the
charge sheet, or even the statements recorded, would all point
at one instance "a live-in relationship" between the complaint
and the petitioner for over five years and the judgments
rendered by the Apex Court, I deem it appropriate to obliterate
the proceedings against the petitioners in both the petitions,
failing which it would become an abuse of process of law and
result in miscarriage of justice. For the aforesaid reasons, I
pass the following:
ORDER
1. Petitions are allowed;
2. Order dated 20th January, 2020 pursuant to filing
of charge sheet in Crime No.295 of 2019 of
Kamakshipalya Police Station, on the file of
V Addl. C.M.M., Bengaluru is quashed qua the
petitioner.
Sd/-
JUDGE
lnn
