Karnataka High Court

Swamynaika vs State Of Karnataka on 6 November, 2025

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                                                               NC: 2025:KHC:44984
                                                         CRL.A No. 666 of 2018


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                         IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                              DATED THIS THE 6TH DAY OF NOVEMBER, 2025
                                               BEFORE
                                THE HON'BLE MR. JUSTICE G BASAVARAJA
                          CRIMINAL APPEAL NO. 666 OF 2018 (374(Cr.PC) /
                                          415(BNSS))
                       BETWEEN:

                       SWAMYNAIKA
                       AGED ABOUT 31 YEARS,
                       S/O KEMPANAIKA
                       R/AT HATVALU VILLAGE, H D KOTE TALUK,
                       MYSURU DISTRICT-571114
                                                                     ...APPELLANT
                       (BY SRI. P NATARAJU., ADVOCATE)
                       AND:

                       STATE OF KARNATAKA
                       BY H D KOTE POLICE STATION,
                       MYSURU DISTRICT
                       REPRESENTED BY
                       STATE PUBLIC PROSECUTOR
                       HIGH COURT BUILDING
                       BENGALURU-560 001
                                                                   ...RESPONDENT
Digitally signed by
LAKSHMINARAYAN N       (BY MS. ASMA KAUSER, ADDL SPP.)
Location: HIGH COURT
OF KARNATAKA

                            THIS CRL.A. IS FILED U/S.374(2) CR.P.C PRAYING TO
                       SET ASIDE THE JUDGMENT OF CONVICTION DATED
                       22.02.2018 AND SENTENCE DATED 23.02.2018 PASSED BY
                       THE VII ADDITIONAL SESSIONS JUDGE, MYSURU IN
                       S.C.NO.340/2012 - CONVICTING THE APPELLANT/ACCUSED
                       FOR THE OFFENCE P/U/S 376 AND 417 OF IPC.

                            THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
                       DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

                       CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
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                                             NC: 2025:KHC:44984
                                          CRL.A No. 666 of 2018


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                       ORAL JUDGMENT

1. The appellant has preferred this appeal against the

judgment of conviction and order on sentence passed by

the VII Additional Sessions Judge, Mysuru (for short "the

trial Court").

2. For the sake of convenience, the parties herein are

referred to as per their rank and status before the trial

Court.

3. The brief facts leading to this appeal are that,

H.D.Kote Police submitted charge sheet against the

accused for the commission of offence under sections 376,

417 of Indian Penal Code.

4. It is alleged by the prosecution that the Prosecutrix

and the accused are the residents of Hatvalu Village,

H.D.Kote Taluk. The Prosecutrix is not married. She is

the only daughter of CW4-Malligamma. Her husband had

deserted her when the Prosecutrix was about 5 years old.

CW4-Malligamma is aged and short of eye-sight. She and

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her daughter are eking their livelihood by doing coolie

work. The Prosecutrix and the accused belong to the

same caste. Accused is married to one Sakamma,

however they have no issues.

5. The accused had befriended and lured the

Prosecutrix into intimate relationship, promising that he

would marry her. He had told the Prosecutrix that as he

did not have children out of the first marriage, he would

marry her. He also told her that at first they should have

intimate sexual contact and the family members would not

raise any objection thereafter and it would pave way for

their marriage. Believing the words and assurance given

by the accused, the Prosecutrix gave in to wishes of the

accused and both had sex several times. The accused also

used to visit the house of the Prosecutrix. Due to the said

intimate relationship between them, the Prosecutrix

became pregnant and informed the said fact to the

accused. On the assurance given by the accused, she had

not informed the said fact to her mother or other villagers.

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As her mother was short of sight, she has not initially

noticed that her daughter was pregnant. The said fact

was brought to her notice by the neighbors and when

questioned, the Prosecutrix revealed to her mother about

her relationship with the accused and also that he had

assured of marrying her. The accused had thereafter

started avoiding her which forced the Prosecutrix and her

mother to inform the above facts to the village elders and

accordingly panchayat was convened. The accused who

appeared before the panchayat, suspected the paternity of

the child in the womb of prosecutrix and demanded that

the blood samples have to be verified for which the

Prosecutrix had agreed. However, the accused had not

come forward for the said test. The Prosecutrix had

thereafter approached Chamundeshwari Women's

Association, NGO for counseling and reported the matter

to the office bearers. The accused was summoned to the

above office on 25.06.2012 and when enquired, he had

admitted of impregnating the Prosecutrix but however

informed them that his first wife was also carrying and the

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family members had opposed the marriage of accused

with the Prosecutrix. However, on the next day i.e., on

27.06.2012, he had disputed the paternity and sought

DNA examination of the blood samples. Taking note of the

stand taken by the accused in the panchayat, she was

advised to take appropriate action. Therefore, on

17.07.2012, the Prosecutrix approached the H.D.Kote

Police Station and lodged a complaint against the accused.

The Prosecutrix was 8 months pregnant at that time of

lodging the complaint. Thereafter, she had given birth to

a girl child, which later came to be named as 'Neelamma'.

6. Thus, the accused has committed the alleged offence

under sections 376, 417 of Indian Penal Code.

7. After filing the charge sheet, cognizance was taken

by the concerned Magistrate and case was registered in

C.C.No.452/2012 and after committal, the case was

registered in SC No.340/2012.

8. The accused was released on bail and on hearing the

charges, the trial Court has framed the charges against

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the accused for the alleged commission of offences.

Same was read over and explained to the accused.

Having understood the same, accused pleaded not guilty

and claimed to be tried.

9. To prove the case of the prosecution, 20 witnesses

were examined as PW1 to PW20 and 24 documents were

marked as Ex.P1 to P24. On closure of prosecution side

evidence, statement under Section 313 was recorded. The

accused has totally denied the evidence of prosecution

witnesses, but he has not chosen to lead any defense

evidence on his behalf.

10. Having heard on both sides, the trial Court has

convicted the accused and sentenced to undergo Rigorous

Imprisonment for a period of 10 years and pay a fine of

Rs.20,000/- for the offence under section 376 of Indian

Penal Code and further sentenced the accused to undergo

simple imprisonment for a period of 1 year and pay a fine

of Rs.5,000/- for the offence under section 417 of Indian

Penal Code. Being aggrieved by this judgment of

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conviction and order on sentence, the appellant has

preferred this appeal.

11. Learned counsel for the appellant would submit that

since the date of judgment by the trial Court, the accused

is in judicial custody, i.e. for more than 8 years. The

accused has not committed any offence as alleged against

him. The accused is a married man. Same is admitted by

PW1 in her examination-in-chief. However, she has given

consent for sexual intercourse with the accused, on his

promise to marry her. The victim was the major at the

time of alleged incident. The accusation made against this

accused do not come under the definition of 'Rape'. But

the trial Court has failed to appreciate the evidence on

record in accordance with law and facts and accordingly

sought for allowing this appeal.

12. Smt. Asma Kauser, learned Additional SPP would

submit that the trial Court has properly appreciated the

evidence on record and there is no ground to interfere

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with the impugned judgment of conviction and order on

sentence and hence, sought for dismissal of this appeal.

13. Having heard the arguments on both sides and on

perusal of the materials available on record, the points

that would arise for my consideration are:

(1) Whether the appellant has made out grounds to interfere with the impugned judgment of conviction and order on sentence passed by the trial Court.

(2) What order?

14. My answer to the above points are as under:

Point No.1: in the Affirmative;

Point No.2: As per final order.

15. I have examined the materials placed before this

Court. It is the case of the prosecution that, the

Prosecutrix and the accused are the residents of Hatvalu

Village, H.D.Kote Taluk. Prosecutrix is the only daughter of

CW4-Malligamma and is unmarried. Husband of CW4

deserted her when the Prosecutrix was about 5 years old.

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CW4-Malligamma is aged and short of eyesight and they

are eking their livelihood by coolie work. Accused is

married to one Sakamma, but they have no issues. Both

the accused and the prosecutrix belong to the same caste.

The accused lured the Prosecutrix into intimate

relationship, promising that he would marry her. He had

told the Prosecutrix that since he did not have children out

of the first marriage, he would marry her and for that they

should have sexual contact first and then the family

members would not raise any objection for their marriage.

Believing the words and assurance given by the accused,

the Prosecutrix and accused had sex several times. Due to

the said intimate relationship between them, the

Prosecutrix became pregnant and informed the said fact to

the accused. On the assurance given by the accused, she

had not informed the said fact to her mother or other

villagers. As her mother was short of sight, she has not

initially noticed that her daughter was pregnant. The said

fact was brought to her notice by the neighbors and when

questioned, the Prosecutrix had revealed to her mother

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about her relationship with the accused and also that he

had assured of marrying her. The accused had thereafter

started avoiding her which forced the Prosecutrix and her

mother to inform the above facts to the village elders and

convened the panchayat. The accused who appeared

before the panchayat suspected the paternity of the child

and demanded that the blood samples have to be verified

for which the Prosecutrix had agreed, however, the

accused had not come forward for the said test. The

Prosecutrix had thereafter approached Chamundeshwari

Women's Association, an NGO for counseling and reported

the matter to the office bearers. The accused was

summoned to the above office on 25.06.2012 and when

enquired, he had admitted of impregnating the Prosecutrix

but however informed them that his first wife was also

carrying and the family members had opposed the

marriage of accused with the Prosecutrix. However, on

the next day i.e, on 27.06.2012, he had disputed the

paternity and sought DNA examination of the blood

samples. Taking note of the stand taken by the accused in

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the panchayat, she was advised to take appropriate

action, therefore, on 17.07.2012, the Prosecutrix

approached the H.D.Kote Police Station and lodged a

police complaint against the accused and at that time, the

Prosecutrix was 8 months pregnant. Thereafter, she had

given birth to a girl child, which came to be named as

'Neelamma'.

16. To prove the guilt of the accused, prosecution has

examined 20 witnesses as PW1 to PW20 and 24

documents were marked as Ex.P1 to P24.

17. Before examining the material placed before us, it is

necessary to mention here as to the decision of Hon'ble

Supreme Court in the case of JOTHIRAGAWAN vs.

STATE REPRESENTED BY INSPECTOR OF POLICE AND

ANOTHER rendered in Special Leave Petition (Crl.)

No.6821 of 2024 decided on 24th March, 2025. In the said

decision, it is observed as under:

"7. We have gone through the First Information Statement made by the complainant and the

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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 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."

18. The Hon'ble Supreme Court in the case of UDAY vs.

STATE OF KARNATAKA, (2003) 4 SCC 46, has

observed as under:

"21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later

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date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not

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possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact."

19. In the case of AMOL BHAGWAN NEHUL v. STATE

OF MAHARASHTRA reported in 2025 LIVELAW SC 641

it is observed that not every broken promise is a false

promise, nor every failed relationship be criminalized as

rape, as consent rendered and sustained cannot

retroactively be converted into accusation.

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20. In the case on hand, it is admitted that the accused

is married. The marital status of the accused/appellant

renders the very notion "Promise to marry" implausible.

Further, the averments of the complaint itself reveals that

the accused and the complainant were in love with each

other and the accused had promised to marry her.

Therefore, they had sexual intercourse. Believing on

words and assurance given by the accused, the

prosecutrix gave-in to the wishes of the accused and both

had sex several times. Due to the said intimate

relationship between them, the prosecutrix became

pregnant and informed the said fact to the accused.

Thereafter, the accused refused to marry her. Hence, she

lodged a complaint as per Ex.P1.

21. The evidence of PW1 and the contents of Ex.P1

reveals that, PW1 has knowledge as to the first marriage

of accused. However, PW1 has given her consent for

consensual sex. This consensual sex between the accused

and PW1 will not come under the definition of 'Rape' as

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defined under Section 375 of Indian Penal Code. Same is

also substantiated by judgments of Hon'ble Supreme Court

in the decisions referred to supra.

22. Though the DNA report Ex.P19 has confirmed that

accused is the biological father of the girl baby, the alleged

act committed by the accused does not come under the

definition of Rape. Accordingly, the prosecution has failed

to prove the guilt of the accused beyond all these grounds.

Hence, I answer Point No.1 in Affirmative.

Regarding Point No.2

23. For the aforesaid reasons and discussions, I proceed

to pass the following:

ORDER

(i) The Criminal Appeal is allowed.

(ii) The judgment of conviction and order on

sentence passed by the VII Additional

Sessions Judge, Mysuru in S.C.No.340/2012

dated 22.02.2018/23.02.2018 is set aside.

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(iii) The accused/appellant is acquitted for the

offence under sections 376 and 417 of Indian

Penal Code.

(v) Considering the facts and circumstances of

the case, though the accused is acquitted, the

victim is entitled for compensation under the

provisions of Section 357-A of the Code of

Criminal Procedure, 1973 and also 'Victim

Compensation Scheme' issued by the