- 1 - NC: 2025:KHC:9842 CRL.RP No. 1077 of 2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 7TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE RAJESH RAI K CRIMINAL REVISION PETITION NO. 1077 OF 2018 BETWEEN: STATE OF KARNATAKA BY SRIRAMAPURA POLICE STATION, BANGALORE, REPRESENTED BY STATE PUBLIC PROSECUTOR, HIGH COURT BUILDING, BANGALORE- 01 …PETITIONER (BY SRI. CHANNAPPA ERAPPA, HCGP) AND: PILSON S/O. ALEXANDER, AGED ABOUT 30 YEARS, R/AT NO. 4/2, 14TH CROSS, 4TH MAIN, L.N. PURAM, SRIRAMPURA, BENGLAURU-560 021. …RESPONDENT (BY SRI. DILRAJ J ROHIT SEQUEIRA, ADVOCATE) THIS CRL.RP IS FILED U/S.397 R/W 401 OF CR.P.C PRAYING TO SET ASIDE THE AFORESAID ORDER DATED 12.06.2018 PASSED IN S.C.NO.235/2017 ON THE FILE OF THE LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE (CCH-54). THIS PETITION, COMING ON FOR HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by HARIKRISHNA V Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:9842 CRL.RP No. 1077 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.235/2017 dated 12.06.2018 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.334/2015 and S.C.No.235/2017 for the offences punishable under Sections 376 and 420 of IPC. 2. The factual matrix of the prosecution case is that: The victim/CW.1 lodged a complaint before the Malleshwaram Police Station on 24.11.2015 alleging that the respondent/accused was her acquaintance and on 21.10.2014, he taken her to his residence and under the pretext of marrying, he consummated with her, this continued on multiple occasions with her. Thereafter, he reneged marrying her. On the strength of the complaint, Malleshwaram Police registered a - 3 - NC: 2025:KHC:9842 CRL.RP No. 1077 of 2018 case in Crime No.334/2015 dated 24.11.2015 for the offences punishable under Sections 376 and 420 r/w Section 34 of IPC. 3. Subsequently, during the course of investigation, owing to the case falling out of the jurisdictional limits, the said case was transferred to Srirampura Police Station and based on the report filed by the Malleshwaram Police Station, an FIR was registered in Srirampura Police Station in Crime No.229/2015 dated 05.12.2015 for the offences punishable under Sections 376 and 420 r/w Section 34 of IPC against the respondent/accused along with two others. Later, Srirampura Police investigated the case and laid the chargesheet solely against respondent/accused No.1 for the aforesaid offences. 4. On committal of the case before the learned Sessions Judge, the learned Sessions Judge secured the presence of the respondent/accused and took cognizance against him. 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 - NC: 2025:KHC:9842 CRL.RP No. 1077 of 2018 5. Learned Sessions Judge after hearing the counsel for the respondent and the learned SPP, 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. 6. I have heard the learned HCGP Sri. Chanappa Erappa for the State and the learned counsel Sri. Dilraj J. Rohit Sequeira for the respondent/accused. 7. The primary contention of the learned HCGP is that the Sessions Court has erred while discharging the accused in allowing the application without appreciating the complaint, statement and other material witnesses placed by the prosecution in right perspective. He contended that the victim has categorically stated in her complaint that the accused repeatedly consummated falsely promising to marry her. To that effect, eight witnesses were examined by the Investigating Officer and they their statements collectively corroborated with the testimony/statement of CW.1/victim. Nevertheless, the prosecution also placed the medical certificate issued by the Doctor who treated CW.1. In such circumstances, without a - 5 - NC: 2025:KHC:9842 CRL.RP No. 1077 of 2018 trial, the learned Sessions Judge ought not to have allowed the application in discharging the accused from the charges leveled against him. Accordingly, he prays to allow the revision petition by setting aside the order passed by the Sessions Court. 8. 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 after meticulously examining the entire statement placed before him, passed a well reasoned order which does not call for any interference by this Court. Accordingly, he prays to dismiss the review petition. 9. Having heard the learned counsel for the parties and on comprehensive perusal of the materials on record, the sole point arising for my consideration is: "Whether the learned Sessions Judge is justified in allowing the discharge application and thereby discharging the accused in Crime No.334/2015 and S.C.No.235/2017 for the offences punishable under Sections 376 and 420 r/w Section 34 of IPC?" - 6 - NC: 2025:KHC:9842 CRL.RP No. 1077 of 2018 10. As could be gathered, the victim initially lodged a complaint on 27.11.2015 alleging that on 21.10.2014, the respondent/accused took her to his residence and on the pretext of marrying he consummated. Thereafter, this was repeated on multiple occasions, each time promising to marry her. As such, the complaint was lodged by the victim on lapse of 13 months. The said inordinate delay in lodging the complaint is not adequately explained by the complainant. Further, it could be gathered that, the victim and the accused were in relationship and that the accused consummated with the victim on receiving her consent and promising to marry her. In such circumstance, the Hon'ble Apex Court in the case of Shiva 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 - 7 - NC: 2025:KHC:9842 CRL.RP No. 1077 of 2018 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 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 - 8 - NC: 2025:KHC:9842 CRL.RP No. 1077 of 2018 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 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 - 9 - NC: 2025:KHC:9842 CRL.RP No. 1077 of 2018 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 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 - 10 - NC: 2025:KHC:9842 CRL.RP No. 1077 of 2018 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 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 - 11 - NC: 2025:KHC:9842 CRL.RP No. 1077 of 2018 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." 11. Further, The Co-ordinate Bench of this Court in the case of Anjanappa v. State of Karnataka in Crl.A.No.1833/2006 has held that consensual sex between the accused and the complainant will not constitute an offence of Sections 417 or 376 of IPC. The materials placed before the Trial Court categorically establishes that the accused had consensual intercourse with the victim under the pretext of marrying her. To attract Section 420 of IPC, there must be dishonest intention on part of the accused and he has to induce - 12 - NC: 2025:KHC:9842 CRL.RP No. 1077 of 2018 the victim to commit such an act. On perusal, there is no such whisper either in the complaint or in 161 statement of any other witnesses that the accused with dishonest intention induced the victim by coercing her to consummate. Admittedly, the victim being a major, the ingredients of Section 375 of IPC dose not attract. The learned Sessions Judge has rightly appreciated the said aspect and discharged the accused. Against this backdrop, I am of the considered view that interference does not call for in the impugned order. Accordingly, I answer point raised above in the affirmative and 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.: 27