Karnataka High Court

Suresh S/O Late Midachana Channegowda vs State Of Karnataka By on 2 July, 2024

Author: Shivashankar Amarannavar

Bench: Shivashankar Amarannavar

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                                                            NC: 2024:KHC:24786
                                                       CRL.A No. 1187 of 2012




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 2ND DAY OF JULY, 2024

                                             BEFORE
                      THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
                               CRIMINAL APPEAL NO. 1187 OF 2012
                      BETWEEN:



                         SURESH S/O LATE MIDACHANA CHANNEGOWDA
                         @ CHANNEGOWDA @ CHOWDAIAH
                         AGED ABOUT 32 YEARS
                         R/O THAGGAHALLI VILLAGE
Digitally signed by      KOTHATTHI HOBLI, MANDYA TQ.
LAKSHMINARAYANA
MURTHY RAJASHRI                                              ...APPELLANT
Location: HIGH
COURT OF              (BY SRI. M Y SREENIVASAN.,ADVOCATE)
KARNATAKA

                      AND:


                         STATE OF KARNATAKA BY
                         MANDYA RURAL POLICE
                                                                ...RESPONDENT

                      (BY SRI.RANGASWAMY R., HCGP)

                           THIS CRL.A IS FILED U/S.374(2)OF CR.P.C PRAYING
                      THAT THIS HON'BLE COURT MAY BE PLEASED TO SET ASIDE
                      THE ORDER OF CONVICTION DATED 27/9/2012 PASSED IN
                      S.C. No.66/2010 BY THE ADDL. SESSIONS JUDGE, MANDYA -
                      CONVICTING THE APPELLANT - ACCUSED FOR THE OFFENCE
                      P/U/S.417 OF IPC.

                           THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
                      DAY, THE COURT DELIVERED THE FOLLOWING:
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                                        NC: 2024:KHC:24786
                                    CRL.A No. 1187 of 2012




                       JUDGMENT

This appeal under Section 374 of Cr.P.C is directed

against the judgment and order dated 27.09.2012 passed

by the learned Additional District and Sessions Judge,

Mandya in Sessions Case No.66/2010.

2. By the impugned judgment, learned Judge held

the Appellant (hereinafter referred to as 'accused') guilty

of offences punishable under Section 417 of the Indian

Penal Code (hereinafter referred to as 'IPC'). He has been

sentenced to undergo rigorous imprisonment for one year

and to pay fine of Rs.5000/- in default to undergo rigorous

imprisonment for a period of three months.

3. The case of the prosecution in brief is as

under:-

The prosecutrix -P.W.2 had lodged the FIR alleging

that the accused had sexual relationship with her with

promise of marriage. He subsequently declined to marry

her. Based on the FIR at Ex.P1 lodged by the prosecutrix

the crime came to be registered against the accused for

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offences punishable under Sections 376 and 417 of the

IPC.

4. The Police after investigation have filed charge

sheet against the accused for offences punishable under

Sections 376 and 417 of IPC. The accused pleaded not

guilty to the charge and claimed to be tried. The

prosecution in support of its case examined 8 witnesses

and got marked documents as Ex.P1 to 7. The defence of

the accused was of total denial. The learned Judge upon

appreciating and analysing the evidence on recorded

acquitted the accused of offence under Section 376 of the

IPC and held him guilty of the offence under Section 417

of the IPC. Being aggrieved by the conviction and

sentence, the accused has preferred this appeal.

5. Heard learned counsel for the appellant and

learned High Court Government Pleader for the

respondent-State.

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6. I have perused the records and considered the

submissions advanced by the learned counsel for the

respective parties.

7. The evidence of P.W.2- Prosecutrix reveals that

the accused was known to her. She had sexual

relationship with the accused for about one and half years.

Evidence of P.W.1- relative of the accused will also

indicate that accused and victim were moving on motor

cycle, on enquiry with victim she revealed that both are in

love and accused has promised to marry her. The evidence

on record thus indicates that sexual relationship between

the prosecutrix and the accused was consensual. The

accused has been held guilty of offence under Section 417

of the IPC solely for the reason that he refused to marry

the prosecutrix. The question is whether in such

circumstances refusal to marry constitutes an offence of

cheating.

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8. While considering a similar issue, in Sonu @

Subhash Kumar vs. State of Uttar Pradesh and Anr1,

the Hon'ble Supreme Court has observed as under:

"9. In Pramod Suryabhan Pawar vs. State of Maharashtra, (2019) 9 SCC 608, while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations:-

"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..."

10. Further, the Court has observed:

"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

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"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."

9. In Maheshwar Tigga Vs. State of Jharkhand2,

the question before the Hon'ble Supreme Court was

whether the prosecutrix had consented to the physical

relationship under any misconception of fact with regard to

promise of marriage or whether her consent was based on

fraudulent misrepresentation of marriage. The Apex Court

has held that under Section 90 of IPC a consent given

under a misconception of fact is no consent in the eye of

the law. But the misconception of fact has to be in

proximity of time to the occurrence and cannot be spread

over a period of four years. The Apex Court has observed

as under:-

(2020) 10 SCC 108

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"15. In Uday vs. State of Karnataka, (2003 4 SCC 46, the Appellant and the prosecutrix resided in the same neighbourhood. As they belonged to different castes, a matrimonial relationship could not fructify even while physical relations continued between them on the understanding and assurance of marriage.

This Court observed as follows:

"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

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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." "

"20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday are considered relevant :-

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"25...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. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his

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promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.""

10. In the instant case, the evidence on record

indicates that the prosecutrix and the accused were known

to each other. They had indulged in sexual relationship for

a period of one and half years. The evidence of P.W.2-

prosecutrix does not indicate that she had sexual

relationship with the accused under misconception of fact,

with regard to the promise of marriage or that her consent

was based on fraudulent misrepresentation of marriage.

There is no evidence on record to indicate that since the

inception accused did not intend to marry her. In the

absence of evidence to prove that the prosecutrix had

consented for physical relationship on a misconception of