- 1 - NC: 2025:KHC:10099 CRL.RP No. 1043 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. 1043 OF 2018 BETWEEN: STATE OF KARNATAKA BY VIJAYANAGAR POLICE STATION, BANGALORE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE 01 …PETITIONER (BY SRI. RAJATH SUBRAMANYAM, HCGP) AND: A. NATARAJ S/O. A VEERANNA, R/AT NO. 5/1, 1ST FLOOR, 7TH CROSS, S.V.G NAGAR, MUDALAPALYA MAIN ROAD, BENGALURU-560 072. …RESPONDENT (BY SRI. SHREYAS M.B, ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE AFORESAID ORDER DATED 04.06.2018 IN S.C.NO.1223/2017 ON THE FILE OF LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND ALLOW THE ABOVE CRL.RP. THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE RAJESH RAI K Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:10099 CRL.RP No. 1043 of 2018 ORAL ORDER The State has preferred this revision petition against the order passed in S.C.No.1223/2017 dated 04.06.2018 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 thereby discharged the respondent/accused in Crime No.201/2016 and S.C.No.1223/2017 for the offences punishable under Sections 376, 313 and 420 of IPC. 2. The factual matrix of the prosecution case is that: The accused/respondent was acquainted with the victim in this case as both belonged to the same native. They were in courtship and thereafter, the accused promised the victim to marry her. Following such promise, the accused and the victim were sexually active. On 27.02.2015, the accused invited the victim to his house at Mudalapalya and forcibly consummated with her. Further, the accused remained silent and reneged his promise of marrying her. Thereafter, the victim conceived. The accused insisted her to abort the pregnancy and threatened to - 3 - NC: 2025:KHC:10099 CRL.RP No. 1043 of 2018 not marry her should she fail to undergo abortion. Relying on his promise, the victim underwent abortion. Thereafter, the accused failed to honor his promise and snapped contact with the victim. As such, she lodged the complaint before the respondent Police against the accused/respondent and an FIR in Crime No.201/2016 was registered 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 the respondent/accused from the charges leveled against him. 4. The 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. - 4 - NC: 2025:KHC:10099 CRL.RP No. 1043 of 2018 5. I have heard the learned HCGP Sri. Rajath Subramanyam for the State and the learned counsel Sri. Shreyas M. Basareddy, for the respondent/accused. 6. The primary contention of the learned HCGP is that the Sessions Court has erred while discharging the accused/respondent solely on the ground that the offence under Section 375 of IPC does not attract in the case for the reason that the accused and the victim were consensually sexually active. However, this aspect has to be proved by detail trial, instead, the learned Sessions Judge hastily discharged the accused by allowing the application under Section 227 of Cr.P.C. He submitted that, the complaint of the victim and the statement 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 entire statement placed before - 5 - NC: 2025:KHC:10099 CRL.RP No. 1043 of 2018 her, passed a well reasoned order which does not call for any interference by this Court. He further submitted that, it is an admitted case of the prosecution that the victim and the accused were in love and the alleged sexual act was consensual. 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 Sections 376 or Sections 417 and 409 of IPC. The learned Sessions Judge has rightly passed a well reasoned order which does not call for any interference at the hands of this court and accordingly, he prays to dismiss the revision petition. 8. It could be gathered from the records that, neither in the complaint nor in the statements of witnesses, there is no such prima facie materials forthcoming to establish that the accused forcibly consummated with the victim on the pretext of marrying her. It is the admitted case of the prosecution that the victim was aged about 32 years and was very much capable of understanding the consequences of her act. In such circumstances the Hon'ble Apex Court in the case of Shiva - 6 - NC: 2025:KHC:10099 CRL.RP No. 1043 of 2018 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: - 7 - NC: 2025:KHC:10099 CRL.RP No. 1043 of 2018 “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 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 - 8 - NC: 2025:KHC:10099 CRL.RP No. 1043 of 2018 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.” 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 - 9 - NC: 2025:KHC:10099 CRL.RP No. 1043 of 2018 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 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. - 10 - NC: 2025:KHC:10099 CRL.RP No. 1043 of 2018 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 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. 9. Further, applying the principles laid down by the Hon'ble Apex Court in the above case to the facts and circumstances of this case, it is clear that the prosecution has - 11 - NC: 2025:KHC:10099 CRL.RP No. 1043 of 2018 failed to prove that the victim was coerced into consummating with the accused. On perusal of the entire materials placed by the prosecution, I am of the considered view that the learned Sessions Judge has rightly discharged the respondent/accused for the charges leveled against him. In that view of matter, no interference is required in the impugned order passed by the learned Sessions Judge and accordingly, I proceed to pass the following: ORDER The Revision Petition is dismissed being devoid of merits. SD/- (RAJESH RAI K) JUDGE HKV List No.: 1 Sl No.: 28