- 1 - NC: 2025:KHC:17662 CRL.RP No. 918 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 918 OF 2018 BETWEEN: STATE OF KARNATAKA BY BOMMANAHALLI POLICE STATION BANGALORE. REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BANGALORE-01 …PETITIONER (BY SRI. CHANNAPPA ERAPPA, HCGP) AND: RAJU @ NAGARAJ S/O KRISHNAMURTHY AGED ABOUT 27 YEARS, R/AT NO.24/10, 6TH CROSS GOPI'S HOUSE, 7TH MAIN NEW SHANTHI LAYOUT HONGASANDRA BENGALURU-560 068. …RESPONDENT (BY SRI. RAJU- RESPT SD) THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO ALLOW THE ABOVE CRIMINAL RP AND SET ASIDE THE AFORESAID ORDER DATED 04.06.2018, IN S.C.NO.709/2017, ON THE FILE OF THE COURT OF LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, AT BANGALORE (CCH-54). Digitally signed by MAYAGAIAH VINUTHA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:17662 CRL.RP No. 918 of 2018 THIS PETITION, COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: 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.709/2017 dated 04.06.2018 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 field by the respondent/accused under Section 227 of Cr.P.C. and thereby discharged the respondent/accused in Crime No.393/2016 and S.C.No.709/2017 for the offences punishable under Sections 376 and 420 of IPC. 2. The factual matrix of the prosecution case is that: The victim girl is a beautician by profession and she runs a beauty parlour to eke out her living. It is alleged that one Raja Nagaraj i.e. the accused was having a photo studio opposite to her beauty parlour, thereby she became acquainted with the accused and they developed friendship. It is further alleged that the accused proposed her that he was in love with her and believing his words, they exchanged phone numbers - 3 - NC: 2025:KHC:17662 CRL.RP No. 918 of 2018 and they were in touch with each other. It is alleged that on 02.06.2016, he called her to his home and in spite of her resistance, committed sexual act and when the victim questioned him regarding his unruly behaviour, he consoled her that he would marry her and again on 27.02.2016 and 27.07.2016 committed rape on her against her will and wish on the false pretext that he would marry her. It is further alleged that thereafter the accused kept distance and started to avoid her and when the victim requested the accused to marry her, he refused and threatened her with life and said that they do not have any relationship with each other and hence, cheated her. On the said allegation, a case came to be registered on 08.08.2016 before the Jurisdictional Police in Crime No.393/2016 for the offences punishable under Sections 376, 417 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 of the offences under Section 376 and 420 of IPC. Following this, the learned counsel for the respondent/accused filed an application - 4 - NC: 2025:KHC:17662 CRL.RP No. 918 of 2018 under Section 227 of Cr.P.C to discharge the respondent/accused from the charges leveled against him. 4. Learned Sessions Judge on hearing the counsel for the respondent/accused and the learned PP, 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. Channappa Erappa, for the petitioner-State. Respondent is served remained absent. 6. The primary contention of the learned HCGP is that the learned Sessions Judge has erred in discharging the accused by allowing the application solely on the ground that the offence under Section 376 of IPC does not attract in the case since the accused and the victim were in a love affair and that the accused consummated the victim promising to marry her. It is contended that learned Sessions Judge hastily discharged the accused by allowing the application under Section 227 of Cr.P.C without appreciating the complaint, - 5 - NC: 2025:KHC:17662 CRL.RP No. 918 of 2018 statements of material witnesses placed by the prosecution in the right perspective. As such, the allegations against the accused have to be proved in an elaborate trial by examining the material witnesses, including the victim, before the Sessions Court. Accordingly, he prays to allow the revision petition by setting aside the order passed by the Sessions Court. 8. On perusal of the comprehensive records placed before me, it could be gathered that as per the complaint averments, the accused and the victim were sexually active, and the same was with the consent of the victim. Admittedly the victim was major at the time of incident. More over, there is an inordinate delay of two months in lodging the complaint. The said inordinate delay in lodging the complaint is not adequately explained by the complainant. Nevertheless, the prosecution has failed to place the credible documents/statements that such consent was a coerced consent. The prosecution also failed to place any medical report of the victim to substantiate that she had consummated with the accused. In such circumstances, the Hon'ble Apex Court in the case of Shiv Prathap Singh Rana V/s State of Madhya - 6 - NC: 2025:KHC:17662 CRL.RP No. 918 of 2018 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: “90. Consent known to be given under fear or misconception.—A - 7 - NC: 2025:KHC:17662 CRL.RP No. 918 of 2018 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 fact, it is vitiated. Consent for the purpose of Section 375 requires voluntary participation not only - 8 - NC: 2025:KHC:17662 CRL.RP No. 918 of 2018 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 time it was given. The false promise itself must be of immediate relevance, - 9 - NC: 2025:KHC:17662 CRL.RP No. 918 of 2018 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:17662 CRL.RP No. 918 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. On applying the principles laid down by the Hon'ble Apex Court in the above case to the facts and circumstances of this case, I am of the considered view that the prosecution has failed to make out a case against the respondent/accused for - 11 - NC: 2025:KHC:17662 CRL.RP No. 918 of 2018 the offences to frame charges. The learned Sessions Judge after meticulously examining the entire materials placed before her, passed a well reasoned order and the same does not call for any interference at the hands of this Court. Against this backdrop, the learned Sessions Judge has rightly discharged the respondent/accused for the charges leveled against him. Accordingly, I proceed to pass the following: ORDER The Revision Petition is dismissed being devoid of merits. SD/- (RAJESH RAI K) JUDGE KTY* List No.: 1 Sl No.: 26