- 1 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 11TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE RAJESH RAI K CRIMINAL APPEAL NO.100396 OF 2017 (A) BETWEEN: STATE OF KARNATAKA REPRESENTED BY THE POLICE INSPECTOR, HONAVAR POLICE STATION, U.K. KARWAR, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH. …APPELLANT (BY SMT. GIRIJA S. HIREMATH, HCGP) AND: KRISHNA NARAYAN GOUDA AGE: 24 YEARS, R/O. KANGOD, HONAVAR, UTTARA KANNADA, DIST. KARWAR. …RESPONDENT (BY SRI. HARSHAVARDHAN PATIL, ADVOCATE FOR SRI. RAMESH I. ZIRALI, ADVOCATE) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378 (1) AND (3) OF CR.P.C., PRAYING TO GRANT LEAVE TO APPEAL AND TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 08.02.2017 PASSED BY THE COURT OF THE DISTRICT AND SESSIONS JUDGE, UTTARA KANNADA, KARWAR IN SESSIONS CASE NO.39 OF 2011 AND TO CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 417, 376, 354 AND 504 OF IPC. YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.07.17 14:30:59 +0530 - 2 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: THE HON'BLE MR. JUSTICE RAJESH RAI K ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE RAJESH RAI K) The State has preferred this appeal against the judgment of acquittal passed in SC No.39/2011, dated 08.02.2017, by the District and Sessions Judge, Uttara Kannada, Karwar1, whereby the learned Sessions Judge acquitted the accused/respondent for the offences punishable under Sections 376, 354, 417 and 506 of IPC. 2. Briefly stated the facts are that, the accused/respondent was an electrician and he used to visit the house of the complainant/victim, as such, they became friends and the said relationship turned into love. Thereafter, the accused promised the victim that he would marry her; accordingly, on 08.12.2009 at about 11:00 p.m., the accused entered the house of the victim through backdoor and committed forcible sexual intercourse on her. Subsequently, 1 Hereinafter referred to as ‘Trial Court’ - 3 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 she became pregnant. Though the accused persuaded her to abort the pregnancy, she refused to do so. As such, she gave birth to a male child. Though the victim requested the accused to marry her, he refused and threatened her that if she insists him to marry, he would kill her. Hence, left with no other option, the victim lodged a complaint before the Honnavara Police on 12.06.2010 as per Ex.P1 against the accused. On the strength of Ex.P1, the said Police registered the case against accused in Crime No.173/2010 for the offences punishable under Sections 376, 417, 506 and 354 of IPC as per Ex.P10- FIR. Subsequently, PW12-Police Inspector of Honnavara Circle Police Station, conducted further investigation and arrested the accused and thereafter, recording the statement of the witnesses and on obtaining necessary documents from the concerned authorities, he laid charge sheet against the accused for the offences punishable under Sections 376, 354, 417 and 506 of IPC before the Committal Court. After committal of the case, the learned Sessions Judge framed charges against the accused for the aforementioned offences, read over the same to him, however, he denied the same and claimed to be tried. - 4 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 3. In order to prove the charges leveled against the accused, the prosecution in total examined 12 witnesses as per PW1 to PW12 and marked 15 documents as Exs.P1 to P15 so also identified 3 material objects as MO1 to MO3. 4. On assessment of oral and documentary evidence, the learned Sessions Judge acquitted the accused for the charges leveled against him. The said judgment of acquittal is challenged by the State in this appeal. 5. I have heard Smt. Girija S Hiremath, learned High Court Govt. Pleader for the appellant/State, so also learned counsel Sri. Harshavardhan M Patil for Sri. Ramesh I Zirali, learned counsel for the respondent/accused. 6. Learned HCGP primarily contended that the trial Court grossly erred while acquitting the accused from the charges leveled against him, despite the prosecution placed sufficient material to prove the charges. She further contended that PW1-victim, PW3 and PW4-neighbours and PW11-sister of the victim supported the case of prosecution. PW1 narrated the incident that despite her objection, the accused committed forcible sexual intercourse by persuading her that he would - 5 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 marry her. As a result, she gave birth to a male child. The prosecution has also placed DNA report as per Ex.P15, which reveals that the victim and accused are the biological parents of the baby. In such circumstance, the prosecution proved charges leveled against the accused beyond reasonable doubt. She further contended that the evidence of PW3 and PW4- neighbours of the victim, clearly corroborates the testimony of PW1 and her sister PW11. Further, the Investigating Officer also deposed about recording the statement of these material witnesses and obtaining DNA report from the concerned authority. These aspects of the matter have not been properly appreciated by the trial Court. As such, the impugned judgment of acquittal passed by the learned Sessions Judge is liable to be set-aside. Thus, she prays to allow the appeal and to convict the accused for the charged offences. 7. Per contra, learned counsel for the respondent/accused submits that the impugned judgment does not suffer from any perversity or illegality, since the learned Sessions Judge has meticulously examined the entire evidence on record and passed a well-reasoned judgment, which does not warrant at the hands of this Court. He contended that, on - 6 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 perusal of the evidence of PW1, she being a major at the time of incident categorically admitted that the alleged sexual act was consensual one. Further, on perusal of the complaint and her evidence, it could be gathered that both the accused and the victim were in love and sexually active before lodging the complaint. Further, PW3 and PW4 are hearsay witnesses; hence, much credence cannot be attached to their evidence. Further, it is well settled position of law by the Hon’ble Apex Court and by this Court in catena of judgments that DNA report cannot be solely relied to prove the guilt of the accused for the offence punishable under Section 376 of IPC without any such corroborative piece of evidence. In such circumstance, the learned Sessions Judge has rightly appreciated the evidence on record and passed the impugned judgment. Thus, he prays to dismiss the appeal. 8. Having heard the learned counsel for the respective parties and on perusal of the evidence available on record, the following point would arise for my consideration: Whether the trial Court is justified in acquitting the accused for the offences punishable under Sections 376, 417, 354 and 506 of IPC? - 7 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 9. I have given my anxious consideration to the arguments advanced by the learned counsel for the respective parties, so also evidence available on record. 10. It could be gathered from records, the incident was caused on 08.12.2009 and PW.1 lodged the complaint-Ex.P1 on 12.06.2010 i.e. after lapse of 6 months. Further she categorically admitted that herself and the accused were sexually active and he used to visit her house frequently. Admittedly, the victim was major at the time of alleged incident. Hence, it is an admitted case of the prosecution that the alleged sexual act was consensual one. Though the victim stated in her evidence that the accused had committed forcible sexual intercourse on her, the said evidence goes quite contrary to her complaint-Ex.P1. 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 that the consensual sexual act of a major without any force or inducement does not attract the provisions of Sections 376 or 417 of IPC. The Hon’ble Apex in the said judgment held in paragraphs No.26 to 34 as under. - 8 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 “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: - 9 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 “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 90 IPC 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 - 10 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 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 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 - 11 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 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 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 - 12 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 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 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. - 13 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 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 Hon’ble Apex Court in the case of Amol Bhagwan Nehul Vs. State of Maharashtra & Another2 at paragraph-9 has held as under: “In our considered view, this is also not a case where there was a false promise to marry to begin with. A consensual relationship turning sour or partners becoming distant cannot be a ground for invoking criminal machinery of the State. Such conduct not only burdens the Courts, but blots the identity of an individual accused of such a heinous offence. This Court has time and again warned against the misuse of the provisions, and has termed it a folly to treat each breach of promise to marry as a 2 2025 SCC Online SC 1230 - 14 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 false promise and prosecute a person for an offence under section 376 IPC.” 12. No doubt, the victim gave birth to a male child and to prove the paternity of the child, the prosecution relied on the DNA report as per Ex.P15. Additionally, the victim also deposed that the accused was the father of child. However that itself cannot be a circumstance to convict the accused for the offence punishable under Section 376 or 417 of IPC. Further, the DNA report cannot be solely relied to convict the accused in case of sexual act. The Co-ordinate Bench of the Gujarat High Court in the case of Premjibhai Bachubhai Khasiya v. State of Gujarat reported in 2009 SCC OnLine Guj 12076 relying the Apex Court judgment in the case Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, reported in (2005) 5 SCC 294 held in Paragraph Nos.24 to 26 as under: “24. It is thus clear that positive DNA report can be of great significance, where there is supporting evidence, depending of course on the strength and quality of that evidence. If the DNA report is the sole piece of evidence, even if it is positive, it cannot conclusively fix the identity of the miscreant, but, if the report is negative, it would conclusively exonerate the accused from the involvement or charge. - 15 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 25. The science of DNA is at a developing stage and when the Random Occurrence Ratio is not available for Indian Society, it would be risky to act solely on a positive DNA report, because only if the DNA profile of the accused matches with the foetus, it cannot be considered as a conclusive proof of paternity. Contrarily, if it is solitary piece of evidence with negative result, it would conclusively exclude the possibility of involvement of the accused in the offence. 26. The DNA Science and Report is founded on probability theory. When the profiles of accused and foetus/child are consistent, it only shows a probability as per Random Occurrence Ratio. Obviously, it cannot be treated as conclusive proof and cannot be made use of as sole basis of conviction in a criminal case, more so when the Random Occurrence Ratio is not available of Indian Society.” 13. The learned HCGP vehemently contended that PW3 and PW4-neighbours supported the case of prosecution, however, both these witnesses are hearsay witnesses and according to them, they learnt about the relationship of the victim and the accused through victim. The evidence of PW.11- sister of the victim also discloses that she is a hearsay witness to the alleged incident. Hence, the testimony of these witnesses cannot be relied to prove the charges leveled against the accused. - 16 - HC-KAR NC: 2025:KHC-D:8637 CRL.A No. 100396 of 2017 14. Applying the findings held by the Hon’ble Apex Court in the judgments cited supra to the facts and circumstances of the case, I am of the considered view that the prosecution failed to establish the guilt of accused beyond reasonable doubt for the offences punishable under Sections 376, 417, 354 and 506 of IPC. The learned Sessions Judge rightly appreciated the evidence on record and passed the impugned judgment, which does not call for interference at the hands of this Court. Accordingly, I answer the point raised in the “affirmative” and proceed to pass the following: ORDER The Criminal Appeal in Crl.A.No.100396/2017 stands dismissed. SD/- (RAJESH RAI K) JUDGE JTR CT:PA LIST NO.: 1 SL NO.: 3