- 1 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR CRIMINAL APPEAL NO. 820 OF 2013 (C) BETWEEN: A.R. JAYAKUMAR S/O RAJASHEKHARAPPA AGED ABOUT 30 YEARS OCC:AGRICULTURIST & COOLIE R/O ATHIMOGGE VILLAGE TARIKERE TALUKA DISTRICT CHIKAMAGALUR-577 228 …APPELLANT (BY SRI. UMESH P.B, ADVOCATE FOR SRI. RAVINDRA B. DESHPANDE, ADVOCATE) AND: THE STATE OF KARNATAKA BY AJJAMPURA POLICE STATION-577 228 …RESPONDENT (BY SRI. CHANNAPPA ERAPPA, HCGP) THIS CRL.A. IS FILED U/S.374(2) OF CR.P.C PRAYING TO SET-ASIDE CONVICTION AND SENTENCE DATED 26/27.07.2013 PASSED BY THE I ADDL. DIST. & S.J., CHIKMAGALUR IN S.C.NO.126/2009 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 376 AND 417 OF IPC. Digitally signed by SHAKAMBARI Location: High Court of Karnataka - 2 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR ORAL JUDGMENT This appeal is directed against the judgment of conviction dated 26.07.2013 and order on sentence dated 27.07.2013 in Sessions Case No.126/2009 passed by the 1st Additional District and Sessions Judge, Chikmagalur. 2. Brief and relevant facts leading upto this appeal are as under: That the appellant-accused was charge-sheeted by Circle Police Inspector, Tarikere Circle, Chikmagalur District for the offences punishable under Sections 417, 420 and 376 of IPC. It was alleged in the complaint that, appellant-accused is known to victim - PW.3 as both were neighbors residing at Athimogge village in Tarikere Taluk. The accused used to pay frequent visits to the house of PW.2 - Mahadevappa, the father of the victim girl (PW.3). It is stated that, because of this intimacy, love affairs - 3 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 developed between the accused and PW.3 - victim girl as they were of young in age. It is alleged that, taking this situation, accused had forcible sexual intercourse with PW.3 - victim on several occasions with a promise to marry her. Because of this promise; she submitted herself for the sexual intercourse. It is stated that, when PW.3 became pregnant, accused refused to marry and cheated her. Thus, it is alleged in the complaint that, this accused had committed the aforesaid offences. With these allegations a complaint came to be registered and criminal law was set in motion. During the crime stage itself, he was enlarged on bail. On filing the charge-sheet before the Special Court, cognizance of the offence was taken and copies of the police papers were furnished to the accused as contemplated under Section 207 of Cr.P.C. 3. The learned Special Court, on hearing both the side, framed the charges against the accused for the aforesaid offences for which accused pleaded not guilty and claimed to be tried. To prove the case of the - 4 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 prosecution, in all examined 18 witnesses (PW.1 to PW.18) and also got marked Exs.P1 to P28 documents and closed its evidence. During the course of cross-examination, Ex.D1 - copy of receipt of temple came to be marked on behalf of the defence. 4. On closure of the prosecution evidence, accused was questioned under Section 313 of Cr.P.C so as to enable him to answer the incriminating circumstances appearing in the evidence of the prosecution. He denied his complicity in the crime and did not choose to lead any defence evidence. 5. The learned Trial Court on hearing the arguments and on evaluation of the evidence, raised three points for consideration and on appreciation of evidence answered point Nos.1 and 3 in the affirmative and point No.2 in the negative and ultimately found the accused guilty of committing the offences punishable under Sections 376 and 417 of IPC and sentenced him as under: - 5 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 "Accused by name A.R. Jayakumar is sentenced to undergo S.I for a period of 7 years for the offence punishable under Section 376 of IPC and also directed to pay a fine of Rs.20,000/-, in default to pay the fine amount he shall undergo further S.I for a period of 3 months. Accused shall undergo S.I for a period of 6 months U/s.417 of IPC. Both sentences shall run concurrently." 6. Being aggrieved by the said judgment of conviction and order on sentence, now the appellant- accused is before this Court. 7. The learned counsel in addition to narrating the facts of the case, as well as the calendar of events that have taken place, would submit that, the conviction and sentence so passed by the learned Trial Court is contrary to law and evidence. The learned Trial Court has committed a serious error in passing the impugned judgment. The evidence of the complainant as well as the victim is quiet contradictory and unreliable, so also - 6 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 artificial. There is suppression of material facts by the prosecution with regard to the consent to sexual act between accused and victim - PW.3. He would further submit that, in a case of present nature, it is expected by the prosecution to prove its case beyond all reasonable doubt. None of the ingredients of Sections 417 or 376 of IPC are proved by the prosecution. The evidence of complainant -PW.2, victim - PW.3 and her mother PW.5 is full of material contradictions, omissions, and discrepancies. When the learned Trial Court acquitted the accused for the offence punishable under Section 420 of IPC, then it goes to establish that, ingredient of cheating are not attracted. The evidence of PW.3 is not trust worthy. Only when the accused has refused to marry the victim girl, the complainant has fabricated the false story of alleged rape on the person of the victim by the accused. Thus, it is submitted that, as the learned Trial Court has committed a serious error in passing the impugned judgment, it is prayed to set aside the impugned judgment and acquit the accused. - 7 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 8. As against this submission Sri. Channappa Erappa, learned HCGP submits that, in a case of present nature, evidence of victim girl is sufficient to attract the provision of Sections 417 and 376 of IPC. As the accused as well as the victim were the neighbors, because of acquaintance, love affair developed between them. The accused promised her to marry. Therefore, the victim girl submitted herself. He submits that, as the accused failed to comply the promise and refused to marry the victim, by that time, the victim girl had became pregnant. Even there was an abortion at the instance of the accused. This goes to establish the motive of the accused that he wants to commit rape on the person of the victim and enjoy his life with the victim girl. He submits that, in view of evidence of PW.3 - victim as well as corroborative evidence of PW.2 and PW.5, it shows that, accused had really committed the offence in the manner alleged in the complaint. He would submit that, the learned Trial Court has rightly believed the evidence of the witnesses and appreciated the same in proper perspective and rightly - 8 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 convicted and sentenced the accused. In addition to the same, he relied upon the evidence placed on record by the prosecution both oral and documentary. As the appeal lacks merit, he prays to dismiss this appeal. 9. I have given my anxious consideration to the arguments of both the side. Meticulously perused the records. 10. In view of the rival submissions of both the side, the point that would arise for consideration of this Court is: ''Whether the learned Trial Court has committed any illegality or infirmity in passing the impugned judgment and thus, it requires interference of this Court?" 11. It is a specific case of the prosecution that, this accused herein during the month of June and July of 2008 in the house of the complainant - Mahadevappa at Athimogge village, Tarikere Taluk had a sexually intercourse with victim girl, the daughter of the - 9 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 complainant, against her wish and without her consent, so also cheated her dishonestly inducing her to submit herself to satisfy his lust with a false promise to marry her. Thus he has committed the aforesaid offences. 12. In a case of present nature, as rightly submitted by the counsel for the appellant-accused, a heavy burden lies on the prosecution to prove the guilt of the accused beyond all reasonable doubt. To prove the offence of her rape, the prosecution has to prove its ingredients, so also a false promise to satisfy the lust accused had committed the sexual intercourse with victim and thus, he is guilty of the aforesaid offence. Prosecution examined many witnesses in this case. Out of them PW.1 - Hosamane Nijaguna is a witness, who knew about the love affairs between the victim and the accused. But according to his evidence, he has not given the statement before the police and he had deposed complete ignorance with regard to the contents of his statements given by him before the police. He had been declared as a hostile - 10 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 witness, but nothing worth is elicited so as to disbelieve his version given in his examination-in-chief. Therefore, evidence of PW.1 would not help the case of the prosecution. 13. PW.2 - Mahadevappa, is none other than the complainant. According to him, one Savithramma is his wife and he has four children by name Asha, Usha, Basamma and Manjunatha. He stated that, he was residing with all his family members and victim girl was living with them. It is evidence in his examination-in-chief that, prior to 2 to 3 years of filing the complaint, accused and his daughter - victim used to love with each other. According to him, on the previous day of filing this complaint, accused ran away from the village. At that time, victim was 2 months pregnant. It was told to him by the victim that, for the said pregnancy accused is responsible. He further states that having got such information of becoming pregnancy, accused ran away from the village. It is his further evidence that, accused - 11 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 had promised his daughter that, he is going to marry the victim after the marriage of his sister. By saying so, he had sexual intercourse with her. After that the complainant and his people went to the house of the accused and met his parents. At that time, the parents of the accused told that, as he is not in the village they can't do anything. As there was no option for the complainant, he lodged a complaint as per Ex.P3. According to him, after enquiry, police recorded his further statement. Further he states that, as his daughter should not be put to any hardship, there was an abortion. As the accused had cheated his daughter, she had been put to trouble. 14. The cross-examination directed to this PW.2 is worth reading. According to him, he came to know about the said incident of love affairs between the accused and his daughter, when the accused ran away from the village. His daughter never informed him directly about she becoming pregnant because of the love affairs between herself and the accused. This PW.2 came to know about - 12 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 the said fact from one Gudimane Halappa. Thereafter, he sent the elderly members of his village to the house of the accused and at that time, the accused had ran away from the village. It is his evidence that, his daughter was taken to Ajjampura Government Hospital and thereafter to Saibaba Hospital and thereafter to Biruru Hospital for abortion. To show that, they have gone to the Biruru Government Hospital, he had got the documents. According to him, he had not stated in the complaint about visiting the Ajjampura and Biruru Government Hospitals by himself and his victim daughter. He denied a suggestion that, now already the victim had been married with one Sathisha S/o Chandrappa. He denied the suggestion that, the said marriage was performed on 23.11.2011 in between victim and one Sathisha at Veerabadra Swamy Temple, Kallattagiri. He was confronted with Ex.D1 i.e., the receipt for performing certain function in the said temple. He identifies name of Sathisha and his daughter on the said Ex.D1. In para 8 of this cross-examination at page No.5, he stated that, he knew about the physical - 13 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 relationship between accused and complainant for a period of 2 to 3 years, prior to filing of a complaint. When he knew about such relationship in between his daughter and the accused, nothing prevented this PW.2 to take appropriate steps to perform their marriage or atleast to meet the parents of accused and perform the engagement ceremony. No such steps were taken by this PW.2. According to him, the victim girl was sent to Bangalore to work at a Garments Factory for a period of six months. At that time, she was residing in his relatives house. Further, he stated that, the Ex.P3 - complaint was written by the writer of the police station and he cannot depose about the contents of the said complaint. According to him, two complaints were filed by him, one was given to the S.P and I.G etc., and they have issued the endorsement. Only on getting knowledge with regard to the promise to marry by the accused and she becoming pregnant, according to him, he came to know about this fact. The victim is a major girl. Though the complainant was residing with all his family members, it is hard to believe that, only through - 14 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 some other persons, he came to know about the said physical relationship of his daughter with the accused. 15. PW.3 - victim had come before the Trial Court and deposed about his family members, so also her relationship with the accused. According to her evidence, two years prior to filing of a complaint by her father, she had physical relationship with the accused. She stated that, whenever she was alone in the house, accused used to come to her house and forcibly used to have sexual intercourse with her. Even accused used to meet her in the landed property as well as in the hut etc. According to her evidence, accused used to say that, he had to perform the marriage of his sister Mamatha and thereafter promised, that he would marry her. Even he had promised that, if the family members do not agree for the same, they together would move to Bengaluru. Because of this, she submitted herself for physical relationship with the accused. For the first time, she speaks all this evidence in her chief-examination. - 15 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 16. There is no recital either in the complaint or anywhere that, there was a marriage in between PW.3 - victim and accused. But this PW.3 stated that, in the month of July 2009, herself and accused went to Kaduru Eshwara Temple and there, accused tied a turmeric root. Even she had removed the said turmeric root as people would know about the her marriage. She stated that, herself and accused had physical intercourse at the hut, where the cattles being tethered and forcibly the accused used to commit sexual intercourse with her. When she became three months pregnant, she got frustrated and intimated this fact to PW.1 - Hosamane Nijaguna, who has been turned hostile, so also to one Gudimane Halappa. According to her, on getting knowledge with regard to the pregnancy of the victim, accused gave a tablet to her and promised her that, as his sister's marriage has to take place, she should not become pregnant. By saying so, he made the victim to consume the said tablet. According to her, on consumption of the said tablet, there was abortion. She stated that, for the said pregnancy accused - 16 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 is responsible. For this reason, her father lodged a complaint. Further she stated that, the police came to the scene of offence and conducted the spot mahazar as per Exs.P4 and P5, where the offence of alleged rape had taken place, so also where marriage had taken place. She identified Ex.P6, the panchanama prepared by the police where accused had committed rape on her. She had been thoroughly cross-examined by the defence. According to her, on filing the complaint, she was enquired by the police. She had narrated the story that, forcibly accused had physical intercourse with her. Further she stated that, accused used to speak to her with love and she had not stated so before the police to that effect. For the first time, she stated that, when she was in the house, accused came to her and wanted to have a sexual intercourse with her. At that time, she raised objection. But, accused told her that, as 'he has his my eyes on her' by saying so, he spoiled her in spite of resistance by her. This evidence spoken by her in para-7 of her cross-examination is quite contrary to her own examination-in-chief. Further, she - 17 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 stated that, whenever the accused used to have a sexual intercourse with her, she used to tell that, this fact will be informed in the house of the accused. But the accused told her not to tell all these facts and they will go to Bengaluru etc. Even accused with frustration told her that, after performing the marriage of his sister, he will marry her. Therefore, she had not informed the said fact to the elderly members of their family. Further, she stated, that for a period of 2 years, this accused had physical sexual intercourse with her in spite of her resistance. He had not headed her request etc. According to her there was continuous sexual intercourse with her by the accused. She also stated that, if the elderly members did not agree, they will run away to Bengaluru. Believing his words, she kept mum. She further stated that, herself and accused after getting tying of the wedlock went to a cinema and returned to their houses. At the instance of accused only, she had removed the said wedlock. She further stated that, herself and accused used to have sexual intercourse at the cattle shed as well as in their - 18 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 landed properties, whenever they meet there. According to her, this fact had been stated by her, when she gave statement before the police. Further she stated that, when she became three months pregnant, she informed the said fact to PW.1 and Halappa. She stated that, accused had obtained the bail in Crime No.97/2009. Even the Writ Petition was filed before this Court in WP.No.129/2009 seeking Writ of Habeas Corpus and he was brought before the Court at that time. She denied that, she had already married with one Sathisha. 17. On scrupulous reading of the evidence of this PW.3, it goes to establish that, there was a love affair between victim and accused and they had frequent sexual intercourse with each other. The trend of her chief- examination and also the answers spoken by PW.3 in her cross-examination goes to establish that, it was the consensual sex in between accused and this PW.3. Though, it is stated that, he had promised to marry her, but on that ground only, he had sexual intercourse with - 19 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 her. It is not at all properly stated by this PW.3. PW.2 - her father stated that, right from two years prior to filing the complaint, there was physical relationship between accused and his daughter (PW.3). 18. PW.4 - A.V.Nataraj is the person who had taken the photograph as per Ex.P7 and he identified the photographs and speaks about, he putting his signature to the panchanama on Ex.P4. But in the cross-examination he stated that, he does not know the contents of Ex.P4 panchanama. Ex.P4 is the panchanama of the scene of offence. He stated that, Exs.P7 to P9 - photographs were taken in his presence. To the extent of his presence, at the time of taking the photograph, his evidence is to be accepted. 19. PW.5 - Smt. Savithramma, is none other than the mother of the victim and wife of PW.2. According to her evidence, whenever she used to be in the house, PW.3 used to go to the landed property. In the absence of other family members, PW.3 used to be in the house and - 20 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 at that time, accused used to visit her house. Both were having love with each other. According to her, when PW.3 complained about her stomach pain, she was taken to Ajjampura Government Hospital and thereafter to Sai Baba Hospital. PW.3 had suffered a bleeding and at that time, she was taken to Biruru Government Hospital and there they came to know that, she was pregnant. She has stated that, there was an abortion. Further she stated that, on enquiry, this PW.3 told that, she had a sexual intercourse with the accused on the promise that, he will marry her. Thus, PW.5 stated that, this accused had promised to marry her daughter (PW.3) and had a forcible sexual intercourse with her. 20. This PW.5 was cross-examined at length by the defence. She denied a suggestion that, she had not stated before the police that, for a period of two years both victim and accused used to move together. She had not stated any facts to that effect. Even she stated with regard to the filing of the Habeas Corpus petition before - 21 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 this Court by her husband. She speaks about taking of victim to the hospital. She denied other suggestions so directed to her. The trend of evidence spoken by this PW.5 do establish that, it was consensual sex in between PW.3 and the accused. Though this PW.5 knew about this love affair and tells that, whenever PW.3 was alone in the house, accused used to come to the house and used to have a sexual intercourse with her but has not disclosed this fact to any body much less to her own family members. When PW.5 knew about this fact and permitted PW.3 had a love affair with accused, it shows that, this PW.5 is also a consenting party permitting her daughter to have a love affair with the accused. 21. PW.6 - G.S.Mohan Kumar prepared the sketch of the scene of offence as per Ex.P11. The content of this document is not denied by the defence. To the extent of preparing Ex.P11, the evidence of PW.6 is to be accepted. - 22 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 22. PW.7 - S.G.Rathnakar was the pancha to Ex.P6 and he speaks about his presence, when the panchanama was conducted, but stated that, he had no knowledge with regard to the contents of Ex.P6. One thing is clear from the evidence of PW.7 that, in his presence, this panchanama Ex.P6 was prepared by the police. 23. PW.8 - Smt.Manasa was a Nurse at the relevant time at Ajjampura Hospital. According to her, on 09.08.2009 between 3 p.m and 4 p.m, PW.3 was brought to the hospital and she complained of suffering the stomach pain. As the Doctor was not there, she gave a pain killer injunction and gave a tablet and sent back the victim. To the extent of her giving such a treatment, her evidence is to be accepted. Nothing worth is elicited in her cross-examination. 24. PW.9 -Dr. M.Prakash was the Doctor who had clinically examined victim at Ajjampura Hospital. At that time, she was suffering from stomach ache. He gave a - 23 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 treatment to her and thereafter he referred her to Davanagere Hospital for further treatment. To that extent, his evidence is to be accepted. This fact is not denied by the defence. 25. PW.10 - Dr. Dayananda had clinically examined the victim on 11.08.2009 between 1.30 p.m to 2 p.m. At that time, she complained about stomach ache as well as fever. When he examined, he noticed stomach ache and fever. The scanning was done and he advised PW.3 to take the treatment as an inpatient. He identified his report as per Ex.P15 issued at the request of the police. According to his evidence, she was not pregnant at that time. To the extent of issuing Ex.P15, his evidence of PW.10 is to be believed. 26. PW.11 - Dr. Purushotham had medically examined the accused on 07.08.2009 at 2.30 p.m and he had given a certificate that, accused is capable of doing the physical sexual intercourse. This fact is also not denied by the defence. - 24 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 27. PW.12 - Krishnamurthy was the person who had taken PW.3 and accused to Chandramouleshwara temple and in his presence Ex.P5 - panchanama was prepared. Nothing worth is elicited in the cross- examination. He had been declared as a hostile witness by the prosecution. 28. PW.13 - Kariyappa was the person who was also present when Ex.P5 was prepared at Chandramouleshwara temple and he too had been turned hostile. Therefore, evidence of this PW.12 and PW.13 cannot be accepted as truthful evidence. 29. PW.14 - G.B.Mallikarjuna, Secretary of the Gram panchayat, Athimogge, had issued Ex.P18 - the property extract, where the offence had taken place. To that extent, his evidence is to be accepted. He stated that, complainant's family is residing in the said property as shown in Ex.P18. - 25 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 30. PW.15 - Dr. Geetha, the lady medical officer of Ajjampura Government Hospital stated that, on 01.09.2009, the victim was brought to her hospital by the police constable and she had medically examined the victim. She put her questions as per Ex.P20. According to her opinion, there was a sexual intercourse on the person of the victim. According to her, about 2 to 2.5 months back she had taken the tablets for the purpose of abortion. To that effect, she had issued Ex.P21. No cross- examination is directed to this PW.15 by the defence. To the extent of contents of Ex.P21, the evidence of PW.15 is to be accepted. 31. PW.16 - Maheshwarappa, the police constable had assisted the Investigating Officer in arresting the accused and produced him before the P.S.I. To that extent, the evidence of this PW.16 is to be accepted. 32. PW.17 - Ramachandra B. Maledevaru was the Circle Inspector at the relevant time at Tarikere and at his - 26 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 instructions, the accused was produced before the Court. He had conducted the part of the investigation and recorded the statement of the witnesses and had filed a charge sheet. In all criminal cases panchas are the authors of the panchanama. Investigation officers are the supervisors of the investigation. Unless there is connecting corroborative evidence, the evidence of the IO's become formal in nature. To the extent of conducting part of the investigation and filing of a charge sheet, after collecting necessary document, the evidence of this PW.17 is to be accepted. 33. PW.18 - C.Madhusudhan was the Circle police inspector and he registered the crime and set the criminal law in motion. To that extent, the evidence of PW.18 is to be accepted. Both the IO's had been directed with severe cross-examination, but nothing worth is elicited. 34. Sofaras documentary evidence is concerned, though the prosecution relied upon number of documents, but in this case, the main evidence is that of PWs.2, 3 and - 27 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 5. If the evidence of these witnesses are scrupulously perused, the very ingredients of the offences of 376 and 417 of IPC are missing. 35. To prove the offence of present nature following principles are to be proved by the prosecution with regard to consent under the Section 114-A of Indian Evidence Act deals with presumption as to absence of consent in certain prosecution for rape, as well as Section 90 of IPC defines "consent". As per this Section, "consent" known to be given under fear or misconception. No such ingredient is brought on record from the evidence of PW.3. Section 90 of IPC defines "consent" as under: "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 nature and consequence of that to which he gives his consent; or - 28 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 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." 36. The law says that, consent may be express or implied, coerced or misguided, obtained willing or through deceit. In this case, the complainant is not aware about the said incident, though he knew that, there was a physical relationship of his daughter with the accused. On the misconception that, as the accused failed to marry the victim PW.2 filed a complaint after two years of such continuous love affair between his daughter and the accused. Thus, all the while PWs.2, 3 and 5 specifically stated about continuous sexual relationship with the accused and this PW.3. PW.3 stated that, whenever they meet in the landed property or in the hut, where the cattles are tethered, and even in her house, there were sexual intercourses committed by the accused. She simply tells that, though she resisted, but as accused promised to marry her, therefore, she submitted herself to sexual intercourse. But the conduct of the victim girl - 29 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 shows that, she being an aged more than 18 years has given consent for sexual intercourse with the accused with whom she was deeply in love. According to her, on promise that, he would marry her on later days, she submitted herself. The evidence of PW.3 so brought on record show that, this PW.3 had continuous meeting with the accused and often had sexual intercourse at various places stated supra and became pregnant. A complaint was lodged after two years on failure of the accused to marry PW.3. The conduct of this PW.3 itself goes to shows that, this consent cannot be said to be given under misconception of facts. Therefore, it appears that, the consensus of judicial opinion is in favour of the view that, the consent given by the victim to sexually intercourse with whom she was deeply in love on a promise that, he would marry her on later days, cannot be said to be given under misconception of facts. A false promise is not a fact within the meaning of the penal code. Therefore, as held by the Hon'ble Apex Court as well as Co-ordinate Benches of this Court in various judgments that, there is no - 30 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 straight jacket formula for determining, whether consent given by the prosecutrix/victim to sexual intercourse voluntarily, or whether it is given under a misconception of facts. The ultimate analysis would be, the tests laid down by the Courts provide a best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, considering the evidence before it and the surrounding circumstances before reaching a proper conclusion. 37. If this analogy is applied to the facts, it can never be stated that, there was a false promise to marry her as there was a continuous physical relationship in between the PW.3 and the accused. 38. The Hon'ble Apex Court in the judgment of Dr. Dhruvaram Murlidhar Sonar V/s. State of Maharashtra and Others reported in (2019) 18 SCC 191 supra have laid down certain principles with regard to the case of present nature. Para 23 of the aforesaid judgment reads as under: - 31 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 "23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole Intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of Circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC." 39. The above observation in para-23 can be made applicable to the present fact of the case, as it is a clear case that, such a physical relationship between PW.3 and accused never constitute an offence under Section 376 of IPC. 40. Likewise the Hon'ble Apex Court in the judgment of Naim Ahamed V/s. State (NCT of Delhi) reported in (2023) 15 SCC 385 have defined the - 32 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 definition of rape as well as presumption which can be raised under Section 114-A of the Indian Evidence Act. Para-17 of the said judgment reads as under: "17. In Deepak Gulati v. State of Haryana, this Court gave one more dimension of the word "consent" by distinguishing "rape" and "consensual sex" and observed as under: (SCC pp. 682-84, paras 21 & 24) "21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives. 22.-23. - 33 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The 'failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance'. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her." The aforesaid observations and the principles can very well apply to the present facts of the case. 41. Thus, from the evidence of PWs. 2, 3 and 5, it can never be stated that, the ingredients of the offence so made out against the accused are fulfilled by the prosecution with legal evidence. There is a clear evidence spoken by PW.3 that, she herself had submitted herself for sexual intercourse. She was in continuous such relationship for a period of two years prior to filing of the complaint. When accused refused to marry her, then only her father filed a complaint. Even her father knew about - 34 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 the said fact, but did not file any complaint or did not visit the parents of the accused. PW.5 - the mother was not aware about this fact. She also stated that her daughter had love affair with the accused and they used to meet with each other. So if such an evidence is placed on record, it can be stated that, the ingredients as stated supra of the offences, are not duly proved in accordance with law. At the most, it is consensual sexual intercourse in between PW.3 and the accused. No mala fide intention on the part of the accused is established under the provisions of Sections 376 or 417 of IPC. Thus, the prosecution has failed to prove its case with legal evidence. However, believing the evidence of PW.3, the learned Trial Court has come to the conclusion that, accused is guilty of committing the offences. There is no proper appreciation of evidence by the Trial Court in coming to such conclusion. The probability of the case has to be taken into consideration, so also the prosecution is under obligation to prove the guilt of the accused. But in this case, chain of circumstances so brought on record, - 35 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 disprove the case of the prosecution and prove the defence of the accused. The impugned judgment so passed by the Trial Court requires to be interfered and it suffers from legal infirmities and it is without proper appreciation of evidence. Hence, I record my findings in favour of the accused - appellant and against the prosecution. 42. Resultantly, I pass the following: ORDER (i) The Criminal Appeal is allowed. (ii) Impugned judgment of conviction dated 26.07.2013 and order of sentence dated 27.07.2013 passed in S.C No.126/2009 by the I Additional District and Sessions Judge, Chikmagalur is hereby set aside. (iii) Consequentially, the accused is acquitted of the charges under Sections 376 and 417 of IPC. (iv) The bail bonds, if any, stands cancelled and he is set at liberty. - 36 - NC: 2025:KHC:15798 CRL.A No. 820 of 2013 (v) Send back the Trial Court Records along with the copy of this judgment. Sd/- (RAMACHANDRA D. HUDDAR) JUDGE AM List No.: 1 Sl No.: 14