Karnataka High Court

State Of Karnataka By vs Shiva H on 28 March, 2025

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                                                            NC: 2025:KHC:13242
                                                      CRL.RP No. 1047 of 2018




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 28TH DAY OF MARCH, 2025

                                             BEFORE

                              THE HON'BLE MR JUSTICE RAJESH RAI K

                         CRIMINAL REVISION PETITION NO. 1047 OF 2018

                      BETWEEN:

                         STATE OF KARNATAKA BY
                         HALASURGATE WOMEN POLICE STATION
                         BANGALORE. REPRESENTED BY
                         STATE PUBLIC PROSECUTOR
                         HIGH COURT BUILDING
                         BANGALORE-1
                                                                 ...PETITIONER
                      (BY MR. RAJATH SUBRAMANYA, HCGP)

                      AND:

                         SHIVA H
                         S/O HANUMANTHAPPA
                         AGED ABOUT 27 YEARS
                         R/A NO.45, 1ST FLOOR
Digitally signed by      BULLET KRISHNAPPA LAYOUT
HARIKRISHNA V
                         TINDLU, VIDYARANYAPURA
Location: HIGH
COURT OF                 BENGALURU-560 097
KARNATAKA                                                       ...RESPONDENT
                      (BY MR. JAGADEESHA GOWDA, ADVOCATE)

                           THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C
                      PRAYING TO ALLOW THE ABOVE CRL.RP AND SET ASIDE THE
                      AFORESAID ORDER DATED 19.06.2018, IN S.C.NO.1476/2017
                      ON THE FILE OF THE OCURT 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:
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                                            NC: 2025:KHC:13242
                                      CRL.RP No. 1047 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.1476/2017 dated 19.06.2018 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.10/2017 for the offences punishable under Sections 376,

420 and 506 of IPC.

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

On 09.02.2017, the complainant-CW.1 lodged a

complaint against the accused alleging that she was studying at

Central College and in the same college accused was also

pursuing his II year M.Com, developed acquaintance with her,

talking to her everyday in a friendly manner, proposed her that

he loves her and going to marry her. With the assurance of love

affair and also marrying, the accused taken complainant to

Shivamogga on 26.12.2012 in VRL bus, during the midnight at

about 12.30 a.m. the accused hold her hands tightly and tied

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the same with her vale, when CW.1 started screaming he also

gagged her mouth by squeezing cloth into her mouth and

committed forcible sexual intercourse with her in the bus itself.

Post committing such act, accused started telling complainant

that, if she informed police or anybody at home he is not going

to marry her and hence taken sometime with CW.1 to marry

her. Again on 10.3.2015, the accused invited CW.1 to his house

on the guise of discussing marriage talks and once again

consummated her by threatening her with dire consequences.

On 18.09.2016, accused taken Rs.35,000/- from complainant

on account of some loan, again on 16.08.2016, took another

30,000/- from CW.1 and insisting her to pay Rs.3,00,000/- for

the purpose of share business and some how taken Rs.50,000/-

from CW.1. Again on 07.01.2017, accused had taken

complainant to Rockline mall on the guise of showing movie

and committed forcible sexual intercourse with her and later

started blackmailing her that he recorded a video of sexual

activity with her and if she give any complaint, he is going to

upload the said video in the social media and thereby started

threatening the complainant. Later, accused started to her

telling that his engagement has been done with his maternal

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uncle's daughter and thereby deceived complainant by refusing

to marry her and hence complainant-police have filed charge

sheet for the offences referred supra.

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 Public

Prosecutor allowed the application filed by the

respondent/accused under Section 227 of Cr.P.C and

discharged him for the aforementioned offences. 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

Jagadeesha Gowda 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

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

does not attract in the case since the accused consummated

promising to marry her. 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/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

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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 420 of IPC. Accordingly, he

prays to dismiss the revision petition.

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

complaint, the accused promised to marry the complainant and

thereby consummated with her. There are neither documents

nor statements forthcoming in record that the accused forcibly

consummated with the victim or that he reneged to marry.

Nevertheless she is a major and she is aware of the

consequence of the said act and there is also an inordinate

delay in lodging in the complaint. Initially the incident occurred

in the year 2012, however the complaint was lodged in the year

2017. In such circumstances, the Hon'ble Apex Court in the

case of Shiv 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.

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"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 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

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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 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

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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."

32. The learned counsel for the respondents had relied heavily on the expression "misconception of fact". However, according to us, there is no

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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 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

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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: