Karnataka High Court

State Of Karnataka By vs Shovesh Sethi on 10 March, 2025

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                                                           NC: 2025:KHC:10097
                                                       CRL.RP No. 975 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. 975 OF 2018

                      BETWEEN:

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

                      AND:

                         SHOVESH SETHI
                         S/O POORNA CHANDRA SETHI
                         AGED ABOUT 28 YEARS,
Digitally signed by      R/AT NO.5, SRI SAI KRUPA
HARIKRISHNA V
Location: HIGH
                         20TH H CROSS, EJIPURA
COURT OF                 VIVEKNAGAR POST
KARNATAKA                BENGALURU-560 047
                                                               ...RESPONDENT
                      (BY SRI. TEJAS N, 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.872/2017 ON THE FILE OF LIII
                      ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU
                      (CCH-54) AND ALLOW THE ABOVE CRL.RP.

                          THIS PETITION, COMING ON FOR HEARING, THIS DAY,
                      ORDER WAS MADE THEREIN AS UNDER:
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                                                    NC: 2025:KHC:10097
                                                CRL.RP No. 975 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.872/2017 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 respondent/accused under Section 227

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

No.358/2016 and S.C.No.872/2017 for the offences punishable

under Sections 417, 376, 324, 506 and 380 of IPC.

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

The accused/respondent aged about 28 years was

employed at DG Captions India Pvt., Ltd., as Team-Head. The

victim and he were in a live-in-relationship and were living in a

rented home since 2015. It is further enumerated in the

complaint that, owing to such a relationship and upon the

accused promising to marry the victim they were sexually

active. Thereafter, the accused reneged his promise, as such,

the victim was compelled to lodged the complaint before the

jurisdictional Police i.e., Koramangala Police against the

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accused/respondent; the same is registered in Crime

No.358/2016 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

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 PP, allowed

the application filed by the respondent/accused under Section

227 of Cr.P.C and discharged him for the offences he was

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. Tejas

N., for the respondent/accused.

6. The primary contention of the learned HCGP is that

the Sessions Court has erred while discharging the accused

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solely on the ground that the offence under Section 375 of IPC

does not attract in the case since the accused and the victim

were in a live-in-relationship and that the accused

consummated promising to marry her. According to 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/respondent. 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

respondent/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 prosecution that

since the victim and the accused were in love they both were in

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a live-in-relationship and the purported consummation was with

the victim's consent. In such circumstances, as per the law laid

down by the Hon'ble Apex Court in catena of judgments,

consensual relationship between the accused and the victim

does not attract the offence under Section 375 of IPC which is

punishable under Section 376 of IPC or Sections 417 and 409

of IPC. Accordingly, he prays to dismiss the revision petition.

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

complaint, that the victim and the accused were residing

together in a rented house and according to the victim, the

accused promised to marry and thereby consummated with

her. Nowhere in the complaint it is forthcoming that the

accused obtained such a consent by the victim by deceiving her

or by giving false promise. Further, there is an inordinate delay

of 15 days in lodging the complaint. It is also forthcoming on

record that the accused himself lodged the complaint before the

Commissioner of Police alleging that the victim was harassing

him to marry her. There are neither documents nor statements

forthcoming in record that the accused forcibly consummated

with the victim or that he reneged his promise to marry. In

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

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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 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

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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 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

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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 :

(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."

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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. 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

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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: