Karnataka High Court

The State Of Karnataka vs Sheik Nawshad @ Nawshad on 21 July, 2025

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                                                          CRL.RP No. 731 of 2018


                      HC-KAR



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                               DATED THIS THE 21ST DAY OF JULY, 2025
                                                BEFORE
                               THE HON'BLE MR. JUSTICE G BASAVARAJA
                          CRIMINAL REVISION PETITION NO.731 OF 2018
                                      (397(Cr.PC) / 438(BNSS))
                      BETWEEN:
                      THE STATE OF KARNATAKA
                      BY VIDYARANYAPURA POLICE STATION,
                      BANGALORE,
                      REP. BY STATE PUBLIC PROSECUTOR,
                      BENGALURU-01.
                                                                   ...PETITIONER
                      (BY SRI. M.R. PATIL, HCGP.)
                      AND:
                      SHEIK NAWSHAD @ NAWSHAD,
                      S/O SHEIK ANWAR
                      AGED ABOUT 28 YEARS,
                      R/AT NO.47, M S PALYA CIRCLE,
                      YALAHANKA MAIN ROAD,
                      VIDYARANYAPURA,
                      BENGALURU - 560097.
Digitally signed by
                                                                  ...RESPONDENT
LAKSHMINARAYAN N
Location: HIGH
                      (BY SRI. HARSHA D. JOSHI, ADV.)
COURT OF
KARNATAKA

                           THIS CRL.RP IS FILED U/S.397 R/W 401 CR.P.C PRAYING
                      TO ALLOW THIS CRL.RP BY SETTING ASIDE THE ORDER DATED
                      13.04.2018 PASSED IN S.C.NO.655/2016, PASSED BY THE LIII
                      ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
                      AND IMPOSE ADEQUATE SENTENCE FOR THE OFFENCE P/U/S
                      376 AND 420 OF IPC.

                           THIS PETITION, COMING ON FOR FINAL HEARING, THIS
                      DAY, ORDER WAS MADE THEREIN AS UNDER:

                      CORAM:    HON'BLE MR. JUSTICE G BASAVARAJA
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                                         NC: 2025:KHC:27237
                                     CRL.RP No. 731 of 2018


HC-KAR



                        ORAL ORDER

The State has preferred this revision petition against

the order dated 13,04.2018 passed on application filed

under Section 227 of Code of Criminal Procedure, 1973

before the LIII Additional City Civil and Sessions Judge,

Bangalore (CCH-54) in SC No.655/2016.

2. For the sake of convenience, the parties in this

revision petition are referred to as per their status and

rank before the Trial Court.

3. The brief facts leading to this Revision Petition

are that the police inspector, Vidyaranyapura Police Station

has submitted the charge sheet against the accused for

the offence punishable under Sections 376, 417 and 420

of Indian Penal Code.

4. It is alleged by the prosecution that the accused

was having love affair with CW.1 since three years and

persuading her that he is going to marry her and made

CW.1 to believe the same thereby entered house of CW.1

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when nobody were at home and committed sexual

intercourse with her. As such, the police has submitted

the charge sheet against the accused for the alleged

commission of offence.

5. After filing of the charge sheet, the case was

registered against accused in C.C.No.28871/2015.

Thereafter, the case was committed to the Court of

Sessions and registered in S.C.No.655/2016. Before the

Sessions Court, application under Section 227 of Code of

Criminal Procedure was filed seeking to discharge the

accused for the alleged commission of offence as there are

no material to attract the alleged commission of offence

punishable under Sections 376, 417 and 420 of Indian

Penal Code. Having heard the arguments on both sides,

the Trial Court has allowed the petition and discharged the

accused for the offence punishable Sections 376 and 420

of Indian Penal Code. Being aggrieved by the impugned

order, the State has preferred this revision petition.

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6. Sri. M R Patil, learned High Court Government

Pleader appearing for State would submit that there is

prima-facie material against the accused to attract the

alleged commission of offence punishable under Sections

376 and 420 of Indian Penal Code. Without recording the

evidence of prosecution witnesses, the Trial Court has

discharged the accused though there is prima-facie

material for the alleged commission of offence.

7. Further, he submits that the Trial Court should

have considered only the charge sheet to ascertain

whether there is any material substantiating framing of

charge under Sections 376 and 420 of Indian Penal Code.

Lastly, he would submit that the Trial Court has failed to

consider that the consent under a misconception of fact, is

not a consent in the eye of law. On all these grounds

sought to allow this revision petition.

8. Having heard the arguments advanced by the

learned High Court Government Pleader and on perusal of

record, the only point that would arise for my

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consideration is Whether the impugned order dated

13.04.2018 passed by the Trial Court is illegal, perverse,

capricious and suffers from legal infirmities?

9. I have carefully examined the material placed

before this Court.

On the basis of the complaint filed by one Ulfath,

Vidyaranyapura Police registered the case in crime

No.241/2015 against the accused for the offence

punishable under Sections 376 and 420 of Indian Penal

Code and submitted the First Information Report to the

Court on 12.06.2015. Thereafter, the police have visited

the spot and conducted spot panchanama and the

statement of witnesses under Section 164 of Code of

Criminal Procedure was also recorded by the concerned

jurisdictional Magistrate. After thorough investigation, the

investigating officer has submitted the charge sheet

against the accused for the offence punishable under

Sections 376, 417 and 420 of Indian Penal Code.

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10. The Trial Court, in the impugned judgment at

paragraph Nos. 7 and 8, has observed thus:

"7. This case came to be initiated against the accused based on complaint given by none other than the complainant CW.1 herself, who is the victim in this case. In her complaint dated 12.06.2015 she has asserted that, she has studied upto PUC and her mother works in garment factory and her elder brother performing tiles laying work. She acquainted with accused since 3 years on the way to her college and he started talking to her and persuaded her to have love affair with him telling that he is going to marry her. She has also stated that on 11.06.2015 at about 8.00 a.m., when her mother and brother went to work accused came to her house around 2.00 p.m., in the afternoon. He came and sat in the bedroom asking for one glass of water. When CW.1 went to bedroom, he dragged her towards bed and committed forcible sexual intercourse with her telling that he is going to marry her and now on this day i.e., 12.06.2015 accused is telling that he is not ready to marry her and hence she requested complainant police to take action against the accused. In pursuance of this

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complaint, the complainant police conducted spot mahazar on the same day near the house of victim, recorded statement of witnesses and victim was also referred to medical examination at M.S.Ramaiah Hospital on 12.06.2015 i.e. on the date of complaint itself. As I have already stated in the complaint, the complainant has categorically stated that on 11.6.2015 when she was alone at home accused entered her house, dragged her to the bedroom and committed forcible sexual intercourse with her around 2.00 p.m, victim was subjected to medical examination on next day between 2.30 to 4.30 p.m. i.e., within a 24 hours of the alleged act of rape. Whereas, opinion of the doctor is that there is no signs of recent sexual activity. However, he has opined that, there is no recent evidence of sexual intercourse. Even concerned doctor has noted down the status of hymen while examining her gentile organs and according to her hymen shows old healed tears 40 and 60 clock position. If victim had subjected to rape within 24 hours from the date of her medical examination, it is probable that doctor, who examined her gentile organs would noticed evidence of such activity or such recent sexual intercourse. Whereas according to his opinion there is absolutely no recent evidence of

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sexual intercourse available. On the other hand, according to concerned doctor, victim is used to an act like that of sexual intercourse. The medical opinion given by concerned doctor from M.S. Ramaiah Hospital is against to the version of complainant stated in her complaint. It is not the case of the complainant that accused and victim were having physical relationship with each other since 3 years. According to her, accused entered her house on

11.6.2015 and at around 2.00 p.m. and forcibly had sexual intercourse with her, whereas on the next day victim subjected to medical examination and there is no said evidence forthcoming. Inspite of such opinion of doctor the concerned investigation officer/CW13 without considering medical report, filed charge sheet against accused for the offence punishable under Section 376, 417 and 420 of IPC. The Hon'ble High Court of Karnataka in a decision reported in 2017(1) KAR LAW Reports 687 observed that promise of marriage, failure to fulfill a promise, where a man promises to marry a woman and even have a physical relationship through, it cannot be said that an offence either under Section 376 or under Section 417 of Indian Penal Code is made out, in such a case liability could only be under civil

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law for damages. Mere failure to fulfill the promise on a subsequent date on account of force factors do not amount to an act of cheating.

8. Even in the case on hand the complainant is asserting that the accused was acquainted with her on promise to marry her and thereby cheated her. These allegations neither attracts ingredients of Section 376 nor Section 420 of IPC. Even according to medical report of victim the doctor have opined that the victim is used to an act that of sexual activity and there is no signs of recent sexual activity on victim. Under such circumstances, these materials on record neither attracts offence of rape nor cheating. Further as rightly canvassed by learned counsel for accused in Uday V/s State of Karnataka the Hon'ble Supreme Court of India observed that if a person develops physical relationship with a woman on the guise of marrying her, later unable to fulfill the promise, will not commit any offence under Section 376 or 417 of IPC. Complainant being adult lady capable of understanding the consequences of her act and also entertaining a male person to her home. It is a simple case of consensual sex, without even looking into the ingredients of Section 376 and

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420 of IPC. Investigating officer CW-13 filed charge sheet casually. Entertaining of this charge sheet only consumes Court's valuable time. Considering these facts and circumstances, I have answered point No.1 in the Negative."

11. Recently, the Hon'ble Supreme Court, in the

recent decision rendered in the case of in the case of

JOTHIRAGAWAN v. STATE REPRESENTED BY INSPECTOR

OF POLICE AND ANOTHER rendered in Special Leave

Petition (Crl.) No.6821 of 2024 decided on 24th March

2025 has observed as under:

"7. We have gone through the First Information Statement made by the complainant and the statement given before the Police which would form the basis of the trial. Unless the ingredients of an offence under Section 376 of the I.P.C. comes forth from these documents; which read together reveal identical statements, there cannot be any continuation of the prosecution. In this context, we also have to notice Prithivirajan from which paragraph 7 is extracted hereunder:

"7. The instant case is one of consensual relationship between the

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appellant and prosecutrix. Even otherwise, it does not appear from the record that the initial promise to marry allegedly made by the appellant was false to begin with. Perusal of FIR itself suggests that the alleged promise to marry could not be fulfilled by the appellant due to intervening circumstances. Consequently, the relationship ended because of which the present FIR came to be registered. Under these circumstances, letting the appellant face trial would be nothing short of an abuse of the process of the Court. This cannot be permitted."

12. Keeping in mind the aforesaid decision and also

considering the facts and circumstances of the case and

the reasons assigned by the trial Court to discharge the

accused, I do not find any error/legal infirmities in the

impugned order passed by the Trial Court. Hence, I answer

point arose for consideration in the negative.

13. In the result, I proceed to pass the following:

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ORDER

i. Criminal revision petition is dismissed.

ii. The order dated 13.04.2018 passed on application filed under Section 227 of Cr.P.C. in S.C.No.655/2016 on the file of the Court of LIII Addl. City Civil and Sessions Judge, Bangalore (CCH-54) is hereby confirmed.