Karnataka High Court
The State By Vijayanagara P.S vs Vignesh on 25 March, 2025
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CRL.RP No. 1121 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR JUSTICE RAJESH RAI K
CRIMINAL REVISION PETITION NO. 1121 OF 2018
BETWEEN:
THE STATE BY VIJAYANAGARA P.S.,
REPTD. BY STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
BENGALURU - 560 001.
...PETITIONER
(BY MR. RAJAT SUBRAMANYA, HCGP)
AND:
VIGNESH
S/O LATE GANGADHAR,
AGE 25 YEARS,
R/O # NO 400,
8TH 'D' CROSS NETHAJINAGAR,
K.P AGRAHARA
Digitally signed by
MAYAGAIAH MAGADI MAIN ROAD,
VINUTHA BENGALURU - 21
Location: HIGH
COURT OF ...RESPONDENT
KARNATAKA (BY MR. PRAKASH SALMANI, ADVOCATE)
THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED
13.04.2018 PASSED IN S.C.NO.983/2016 BY THE 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
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CRL.RP No. 1121 of 2018
ORAL ORDER
The State has preferred this revision petition against the
order passed in S.C.No.983/2016 dated 13.04.2018 by the LIII
Addl. City Civil and Sessions Judge, Bengaluru (CCH-54)
(hereinafter referred to as '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 thereby discharged the respondent/accused in Crime
No.37/2016 and S.C.No.983/2016 for the offences punishable
under Sections 376 and 420 of IPC.
2. The factual matrix of the prosecution case is that:
The victim/CW.1 lodged a complaint before the
Vijayanagara Police Station on 20.01.2016 alleging that the
respondent/accused was her acquaintance and on 18.01.2016
at about 11:30 a.m., the accused taken her near A2B
Restaurant situated near Silk Board and from there to Chunchi
Falls situated at Kanakapura, since it was late night, the
accused taken her to his residence situated at K.P.Agrahara
and under the pretext of marrying, he consummated with her,
this continued on multiple occasions with her. Thereafter, he
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reneged marrying her. On the strength of the complaint,
Vijayanagara Police registered a case in Crime No.37/2016
dated 20.01.2016 for the offences punishable under Sections
376 and 420 of IPC.
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
against him. Following this, the learned counsel for the
respondent/accused filed an application under Section 227 of
Cr.P.C to discharge the respondent/accused from the charges
leveled against him.
4. Learned Sessions Judge after hearing the counsel
for the respondent 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. Rajat
Subramanya for the State and the learned counsel Sri. Prakash
Salmani for the respondent/accused.
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6. The primary contention of the learned HCGP is that
the Sessions Court has erred while discharging the accused in
allowing the application without appreciating the complaint,
statement of other material witnesses placed by the
prosecution in right perspective. He contended that the victim
has categorically stated in her complaint that the accused
repeatedly consummated falsely promising to marry her. To
that effect, sixteen witnesses were examined by the
Investigating Officer and their statements collectively
corroborated with the testimony/statement of CW.1/victim.
Nevertheless, the prosecution also placed the medical
certificate issued by the Doctor who treated CW.1. In such
circumstances, without a trial, the learned Sessions Judge
ought not to have allowed the application in discharging the
accused from the charges leveled against him. 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
after meticulously examining the entire statement placed
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before him, passed a well reasoned order which does not call
for any interference by this Court. He would further contend
that, the Doctor who examined the victim has opined that there
is no evidence of signs of recent sexual intercourse and victim
is used to do an act like that of sexual intercourse. He also
submits that the accused and the victim were in physical
relationship with each other 3 years prior to filing of the
complaint and nowhere in the complaint the victim asserted
that the accused forcibly taken her to his house and forcibly
consummated against her will. Further, the victim being a
major, the consensual sexual act between the accused and the
victim does not attract Section 376 or Section 420 of IPC.
Accordingly, he prays to dismiss the review petition.
8. Having heard the learned counsel for the parties
and on comprehensive perusal of the materials on record, the
sole point arising for my consideration is:
"Whether the learned Sessions Judge is
justified in allowing the discharge application and
thereby discharging the accused in Crime
No.37/2016 and S.C.No.983/2016 for the offences
punishable under Sections 376 and 420 of IPC?"
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9. As could be gathered, the victim initially lodged a
complaint on 20.01.2016 alleging that, on 18.01.2016 at about
11:30 a.m., the accused taken the complainant near A2B
Restaurant situated near Silk Board and from there to Chunchi
Falls situated at Kanakapura, since it was late night, the
accused taken her to his residence situated at K.P.Agrahara
and on the pretext of marrying, he consummated with her.
Thereafter, this was repeated on multiple occasions, each time
promising to marry her. Further, it could be gathered that, the
victim and the accused were in well acquaintance with each
other and the victim voluntarily accompanied the accused to
Chunchi Falls and stayed in the house of accused. Further, the
accused had not committed any such sexual act forcibly or
against the will of the victim/complainant who was aged about
25 years. In such circumstance, 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
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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
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
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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 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."
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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."
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
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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
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
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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:
(i) the relationship between the
appellant and the prosecutrix was of a
consensual nature;
(ii) the parties were in a relationship
for a period of almost two years; and
(iii) though there were talks between
the parties and their family members
regarding marriage, the same did not
fructify leading to lodging of FIR."
10. Further, The Co-ordinate Bench of this Court in the
case of Anjanappa v. State of Karnataka in
Crl.A.No.1833/2006 has held that consensual sex between the
accused and the complainant will not constitute an offence of
Sections 417 or 376 of IPC. The materials placed before the
Trial Court categorically establishes that the accused had
consensual intercourse with the victim under the pretext of
marrying her. To attract Section 420 of IPC, there must be
dishonest intention on part of the accused and he has to induce
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the victim to commit such an act. On perusal, there is no such
whisper either in the complaint or in 161 statement of any
other witnesses that the accused with dishonest intention
induced the victim by coercing her to consummate. Admittedly,
the victim being a major, the ingredients of Section 375 of IPC
dose not attract. The learned Sessions Judge has rightly
appreciated the said aspect and discharged the accused.
Against this backdrop, I am of the considered view that
interference does not call for in the impugned order.
Accordingly, I answer point raised above in the affirmative and
proceed to pass the following:
ORDER
The Revision Petition is dismissed being devoid of merits.
SD/-
(RAJESH RAI K)
JUDGE
HKV
