- 1 - NC: 2025:KHC-K:1752 CRL.RP No. 200025 of 2025 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 20TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL REVISION PETITION NO.200025 OF 2025 (397(CR.PC)/438(BNSS)) BETWEEN: SRI OMKAR S/O PRAKASH THAKKA, AGED ABOUT 28 YEARS, OCC: PRIVATE SERVICE, R/O HIREMANUR, TQ: AFZALPUR, DIST: KALABURAGI-585101. …PETITIONER (BY SRI S. S. MAMADAPUR, ADVOCATE) AND: THE STATE OF KARNATAKA, THROUGH PSI, HORTI POLICE STATION, REP. BY ITS ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL’S OFFICE, HIGH COURT BUILDING, KALABURAGI – 585103. …RESPONDENT (BY SRI JAMADAR SHAHABUDDIN, HCGP) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 438 READ WITH SECTION 442 OF BNSS, 2023 PRAYING TO SET ASIDE THE ORDER DATED 18.03.2024 Digitally signed by RENUKA Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:1752 CRL.RP No. 200025 of 2025 PASSED BY THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, VIJAYAPUR IN S.C.NO.38/2023 ON THE APPLICATION FILED BY THE PETITIONER/ACCUSED UNDER SECTION 227 OF CR.P.C. AND CONSEQUENTLY DISCHARGE HIM OF THE ALLEGED OFFENCES. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S RACHAIAH ORAL ORDER (PER: HON'BLE MR. JUSTICE S RACHAIAH) This petition is filed by the accused/petitioner under Section 438 read with Section 442 of BNSS, 2023 seeking to set aside the order dated 18.03.2024, passed by the III Additional District and Sessions Judge, Vijayapur in S.C.No.38/2023 and discharge him of the alleged offences. 2. It is the case of the prosecution that the victim filed a complaint stating that she was staying along with her mother and brother at Benakanahalli village, Indi Taluk. She used to go to the cloth store for her livelihood - 3 - NC: 2025:KHC-K:1752 CRL.RP No. 200025 of 2025 at Tamba village. It is further stated that she often go to Akkalkot, Maharashtra to visit her relatives. She further stated that there she had met the petitioner, who was the neighbour of her relative. Both have developed intimacy. It is further stated that the petitioner promised that he would marry her. 3. Such being the fact, on 16.01.2022, when she was at home around 09.30 p.m., the petitioner went to the house and stated to have committed sexual intercourse on her and thereafter on 15.02.2022, he took her to different places and stated to have committed sexual intercourse. 4. Later, the petitioner refused to marry her and used to avoid her phone calls. Therefore, a complaint came to be registered against him to take suitable action. The respondent-police have registered a case in Crime No.74/2022 initially for the offences under Sections 420 and 376 of IPC. After completing the investigation, the - 4 - NC: 2025:KHC-K:1752 CRL.RP No. 200025 of 2025 provisions under Section 417 of IPC was added by deleting Section 420 of IPC. 5. The petitioner had preferred an application under Section 227 of Cr.P.C. seeking for discharge from the charges under Sections 376(2) (n) and 417 of IPC. However, the Trial Court had dismissed the said application. Being aggrieved by the same, the petitioner approached this Court by filing this petition. 6. Heard Sri S.S. Mamadapur, learned counsel for the petitioner and Sri Jamadar Shahabuddin, learned High Court Government Pleader for the respondent/State. 7. It is the submission of the learned counsel for the petitioner that the Trial Court committed an error in rejecting the application filed by the petitioner and also failed to answer properly to the points raised for consideration. Consequently, the impugned order is passed, which is required to be set aside. - 5 - NC: 2025:KHC-K:1752 CRL.RP No. 200025 of 2025 8. It is further submitted that the ingredients of Sections 417 and 376(2) (n) of IPC are not attracted on the given set of facts of the case. The complainant had stated in her complaint that the petitioner had committed sexual intercourse on 16.01.2022 for the first time and again on 13.03.2022 and 14.03.2022. However, she has lodged a complaint on 22.07.2022. 9. It is further submitted that the Hon’ble Supreme Court in the case of Anurag Soni Vs. State of Chhattisgarh reported in (2019) 13 SCC 1 held that there should be a difference between ‘rape’ and ‘consensual sex’. It is further held that 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. 10. It is further submitted that the victim had not disclosed the alleged rape either to her relatives or to the nearest police immediately after the incident. However, - 6 - NC: 2025:KHC-K:1752 CRL.RP No. 200025 of 2025 she lodges a complaint after lapse of several months when the petitioner refused to marry her. The victim, being a major woman, should have known the consequences of the said sexual act. After reading the complaint, it can be inferred that the victim was a consenting party to the sexual activities and it is a consensual sex. Therefore, the said ingredients would not attract against the petitioner. Hence, the case against the petitioner has to b quashed. 11. Per contra, the learned High Court Government Pleader vehemently submitted that the act of the petitioner in inducing the victim to believe that he would marry her and also committing sexual intercourse with her on several occasions on the promise of marriage and thereafter, refusing to marry would indicate that the petitioner had a deceptive mind from the beginning. Therefore the averments of the complaint would attract the ingredients of the above said provisions. Therefore, it is not appropriate to discharge the petitioner without subjecting him for the trial. - 7 - NC: 2025:KHC-K:1752 CRL.RP No. 200025 of 2025 12. Having heard the learned counsel for the respective parties, it is appropriate to have a cursory look upon the averments of the charge sheet. As per the averments of the charge sheet, the victim was staying along with her mother and brother at Benakanahalli village, Indi Taluk and working in a cloth store at Tamba village. She used to visit her relatives house situated at Akkalkot, Maharashtra. There, she acquainted with the petitioner. The said acquaintance became intimacy. Thereafter, it is stated that she had been subjected to sexual intercourse on several occasions on the promise of marriage. When the petitioner refused to marry her, she lodged a complaint against him. 13. In this context, it is appropriate to refer the judgment of the Hon’ble Supreme Court in the case of Shiv Pratap Singh Rana Vs. State of Madhya Pradesh and Another reported in (2024) 8 SCC 313, wherein the Hon’ble Supreme Court in paragraph Nos.32 to 35 held as under: - 8 - NC: 2025:KHC-K:1752 CRL.RP No. 200025 of 2025 “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, - 9 - NC: 2025:KHC-K:1752 CRL.RP No. 200025 of 2025 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 - 10 - NC: 2025:KHC-K:1752 CRL.RP No. 200025 of 2025 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. 35. That being the position and having regard to the facts and circumstances of the case, we are of the view that it would be in the interest of justice if the proceedings are terminated at this stage itself. Consequently, impugned order of the High Court dated 3-10-2019 and the order of the Sessions Judge dated 24-4-2019 are hereby set aside and quashed.” 14. On careful reading of the above said judgment, it emerges that the “consent” of a woman with respect to Section 375 of IPC must involve an active and reasoned - 11 - NC: 2025:KHC-K:1752 CRL.RP No. 200025 of 2025 deliberation towards the proposed act. The said consent must have been obtained by the petitioner with an ulterior motive to clear only his lust. 15. In the present case, both the petitioner and the victim stated to have maintained the relationship of sexual intercourse on several occasions and also both had decided to marry each other. However, as the matter had gone sour leading to file FIR. Therefore, I am of the considered opinion that, on reading of the averments of the complaint, the ingredients of the provisions stated supra cannot be attracted. Therefore, it is appropriate to quash the proceedings. 16. Hence I proceed to pass the following: ORDER (i) The Criminal Revision Petition is allowed. (ii) The order dated 18.03.2024, passed by the III Additional District and Sessions Judge, Vijayapur in S.C.No.38/2023 is set aside and the accused is discharged from the offences - 12 - NC: 2025:KHC-K:1752 CRL.RP No. 200025 of 2025 punishable under Sections 376(2) (n) and 417 of Indian Penal Code. Sd/- (S RACHAIAH) JUDGE RSP List No.: 1 Sl No.: 24 CT:PK