Karnataka High Court

State Of Karnataka By vs Amjad Khan on 10 March, 2025

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                                                          CRL.RP No. 990 of 2018




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                              DATED THIS THE 10TH DAY OF MARCH, 2025

                                               BEFORE

                                THE HON'BLE MR JUSTICE RAJESH RAI K

                            CRIMINAL REVISION PETITION NO. 990 OF 2018

                      BETWEEN:

                            STATE OF KARNATAKA BY
                            PULAKESHINAGAR POLICE STATION
                            BANGALORE
                            REPRESENTED BY
                            STATE PUBLIC PROSECUTOR
                            HIGH COURT BUILDING
                            BANGALORE-1
                                                                   ...PETITIONER
                      (BY SRI. RAJATH SUBRAMANYAM, HCGP)

                      AND:

                      1.    AMJAD KHAN
                            S/O H. JALEEL SAHEB
                            AGED ABOUT 23 YEARS
Digitally signed by
HARIKRISHNA V               NERNIPALLI VILLAGE AND POST
Location: HIGH              V.KOTA MANDAL,
COURT OF                    CHITTOR DISTRICT-514 724
KARNATAKA
                            ANDHRA PRADESH

                      2.    H. JALEEL SAHEB
                            S/O LATE KASIM SAHEB
                            AGED ABOUT 57 YEARS
                            NERLIPALLI VILLAGE,
                            V.KOTA MANDAL
                            CHITTOR DISTRICT-514724,
                            ANDHRA PRADESH

                      3.    YASAR ARAFATH
                            S/O JALEEL SAHEB
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                                            NC: 2025:KHC:10100
                                       CRL.RP No. 990 of 2018




    AGED ABOUT 23 YEARS
    NERNIPALLIL VILLAGE AND POST
    V.KOTA MANDAL,
    CHITTOR DISTRICT-514 724
    ANDHRA PRADESH.
                                               ...RESPONDENTS
(BY SRI. RANGANATH REDDY R, ADVOCATE)

     THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE AFORESAID ORDER DATED
14.06.2018 IN S.C.NO.766/2017 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:

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.766/2017 dated 14.06.2018 by the LIII

Addl. City Civil and Sessions Judge, Bengaluru (CCH-54)

(hereinafter referred to as the 'learned Sessions Judge'),

whereby the learned Sessions Judge allowed the discharge

application filed by the respondents/accused under Section 227

of Cr.P.C. and discharged the respondents/accused in Crime

No.260/2016 and S.C.No.766/2017 for the offences punishable

under Sections 406, 420, 376 r/w Section 34 of IPC.

2. The factual matrix of the prosecution case is that:

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The victim in the instant case was residing with her

parents at Frazer Town, Bangalore. One and a half years prior

to the date of lodging the complaint, the accused No. 1-the

relative of the victim visited her residence along with his

mother, father and brother i.e., accused Nos.2 and 3

respectively seeking marriage proposal. With passage of time

victim and accused No. 1 developed acquaintance and

exchanged messages on WhatsApp. It is further stated that

taking advantage of the said acquaintance in the month of July,

2015 when the victim was home alone, the respondent/accused

No.1 visited her residence and on promising to marry he

consummated with her. Subsequently, the family members of

the accused No.1 demanded dowry of Rs.2,00,000/- from the

victim's family and as they pleaded inability to pay such huge

amount, the accused Nos.1's parents remained silent on the

marriage proposal and sought other bride for their son. When

this was learnt by accused No.1, he conceded to marry another

woman by reneging promise to the victim. As such, the victim

being deceived by the accused No.1, consumed tablet to

commit suicide, however, she was admitted to Bowring Hospital

and was administered treatment, following which a complaint

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was lodged before the jurisdictional Police i.e., Pulakeshinagara

Police Station against the respondents/accused Nos. 1 to 3 and

the same was registered in Crime No.260/2016.

3. On committal of the case before the learned

Sessions Judge, the learned Sessions Judge secured the

presence of the respondents/accused and took cognizance of

the offence. Following this, the learned counsel for the

respondents/accused filed an application under Section 227 of

Cr.P.C to discharge and absolve the respondents/accused from

the charges leveled against them.

4. The learned Sessions Judge on hearing the counsel

for the respondents/accused and the learned PP, allowed the

application filed by the respondents/accused under Section 227

of Cr.P.C and discharged them for the offences charged. The

said order is challenged by the State in this revision petition.

5. I have heard the learned HCGP Sri. Rajath

Subramanyam for the State and the learned counsel Sri.

Ranganath Reddy R., for the respondents/accused.

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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 as the consummation was

consensual. 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 submitted

that, the complaint by the victim and the statements of other

witnesses prima facie make out a case against the

accused/respondents. Accordingly, he prays to allow the

revision petition by setting aside the order passed by the

Sessions Court.

7. Per contra, the learned counsel for the

respondents/accused supported the order passed by the

learned Sessions Judge and submitted that the learned

Sessions Judge on meticulously examining the comprehensive

statement placed before her passed a well-reasoned order

which does not call for any interference by this Court.

Additionally he contended that, it is an admitted case of the

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prosecution that since the victim and the accused were in love

and that they both consensually consummated. In such

circumstances, as per the law laid down by the Hon'ble Apex

Court in catena of judgments, consensual relationship between

the accused/respondent No.1 and the victim does not attract

the offence under Section 375 of IPC which is punishable under

Sections 376 of IPC or Sections 406 and 420 of IPC.

Accordingly, he prays to dismiss the revision petition.

8. It could be gathered from the records, as per the

complaint, that the accused/respondent No.1 visited victim's

house along with his parents and his brother

respondent/accused No.3 seeking marriage proposal. With

passage of time the victim and accused/respondent No.1

exchanged messages on WhatsApp, taking undue advantage of

the said acquaintance, in the month of July, 2015 when the

victim was home alone, the respondent/accused No.1 visited

her residence and on promising to marry consummated with

her. Subsequently, the respondent/accused No.1's parents

called off the marriage proposal and sought a different alliance

for respondent/accused No.1 as the victim's family pleaded

their inability to pay dowry of Rs.2,00,000/-. When this was

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learnt by the respondent/accused No.1, he chose to marry the

new bride sought by his parents by cheating the victim.

Nowhere in the complaint it is established that the

respondent/accused No.1 obtained the victim's consent by

deceiving her or by way of false promise. Further, there is an

inordinate delay of about one year in lodging the complaint.

There are neither documents nor statements forthcoming in

record to prove that the respondent/accused No.1 forcibly

consummated with the victim or that he reneged his promise to

marry. It is the admitted case of the prosecution that the victim

was aged about 20 years and was very much capable of

understanding the consequences of her act. In such

circumstances, the Hon'ble Apex Court in the case of Shiva

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.

"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

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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 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

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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 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 :

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(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 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 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

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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 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

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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: