IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 07TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.218/2018 BETWEEN:
Sri. Ganesh Shetty, Aged about 29 years, S/o. Late. Manjayya Shetty, R/o. Ananthanakodlu, Keradi Pete, Keradi Village, Kundapura Taluk, Udupi District – 572 101 (By Sri.K. Prasanna Shetty, Advocate) ...Petitioner AND:
State by Kundapura Police, Represented by State Public Prosecutor, High Court Buildings, Bengaluru – 560 001. ...Respondent (By Sri. S.T. Naik, HCGP) This Criminal Revision Petition is filed under Section 397 read with Section 401 of Cr.P.C. praying to set aside the order dated 08.12.2017 made in S.C. No.3/2016 and discharge the petitioner for the alleged offence p/u/s 376, 417 of IPC pending on the file of Additional District and Sessions Judge, Udupi (Sitting at Kundapura) Kundapura in S.C. No.3/2016.
This Criminal Revision Petition coming on for Admission, this day, the Court made the following:
O R D E R The present petition has been filed by the petitioner/accused under Section 397 of Cr.P.C., challenging the order passed by the Additional District and Sessions Judge, Udupi (sitting at Kundapura) Kundapura in S.C. No.3/2016 dated 08.12.2017.
2. I have heard the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State. Though this case is posted for admission with the consent of learned counsel for both the parties, it is taken up for final disposal.
3. Gist of the complaint is that victim/complainant used to reside along with her brother and mother’s sister. Two years back, she was studying in Varasiddivinayaka Pre-University College in 2nd year PUC, whenever she used to go to the said college and when she was standing at bus-stop, at that time the petitioner/accused was acquainted, developed intimacy and started loving her. In that context, once he took her to a vacant house by saying that nothing is going to happen, sexually assaulted her and thereafter, three to four times she has been sexually assaulted. Subsequently, he was having physical contact with her. It is further stated that he promised her to marry and took an amount of Rs.50,000/-. When he was in physical contact, she become pregnant. When the same was intimated to the accused, he told that her character is not good and he is not going to marry her. Thereafter, he cheated and had a physical contact with her. In this behalf a complaint has been given on 14.10.2014 and a case has been registered in Crime No.337/2014 for the offences punishable under Sections 376 and 417 of IPC.
4. It is the submission of the learned counsel for the petitioner that he filed an application under Section 379 of Cr.P.C., for discharge of the accused by contending that the victim has concocted the story and filed a compliant after two years i.e., on 14.10.2014. As per the compliant, the alleged incident has taken place during 2012 and the complaint was filed on 14.10.2014. There is inordinate delay in filing a complaint and the said delay has not been explained. It is further submitted that the ingredient of Section 375 of IPC will not attract that there is no forcible sexual intercourse as contemplated under the said Act. Further it is submitted that there is no material to attract the provisions of Section 376 of IPC and also the provisions of Section 417 of IPC. On these grounds, he prayed to allow the petition and to set aside the order passed by the trial Court dated 08.12.2017.
5. Per contra, learned High Court Government Pleader vehemently argued and submitted that the victim, who suffered the sexual assault became pregnant and she has already got delivered a child on 18.10.2014 in Government Hospital. The prosecution papers including the statement of victim clearly go to show that it is the petitioner/accused who sexually assaulted, as a result of the same, the victim become pregnant and has delivered a male child. When that child itself is available, if DNA is conducted, then it is going to substantiate the contention of the complainant. It is further submitted that the Court below after considering the material placed on record, has come to a right conclusion that it is not a case for discharge and charges to be framed. On these grounds, he prayed to dismiss the petition.
6. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
7. On perusal of the records, it appears that a complaint was lodged by the victim alleging that the petitioner/accused under the promise of marriage, he used to have a physical contact with the complainant. As a result of the same, she became pregnant and thereafter the petitioner/accused refused to marry her. Now, she has delivered a male child. When complaint has been filed by the complainant alleging that the petitioner/accused has sexually assaulted, thereafter the investigation has been conducted and a chargesheet has been filed. It is the contention of the learned counsel for the petitioner that there is inordinate delay in filing the complaint. As such, it is a false complaint and it is also a concocted and cooked complaint but the victim after became pregnant and has delivered the male child on 18.10.2014 and the compliant has been filed on 14.10.2014. When the accused petitioner has promised her that he is going to marry her and the complaint also indicates that forcefully, he took her and had a physical contact. Under such circumstance, it can be inferred that against her will, the accused petitioner has sexually assaulted and as a result of the same, she has become pregnant. Though it is contended that there is a delay, under the facts and circumstances of the case, I feel that though there is a delay and if delay has occurred because of proper reasons’ the said explanation can be accepted and only on the ground of delay, it cannot be suspected that no such incident has taken place as contended by the learned counsel for the petitioner, that too, when the victim has became pregnant and delivered the child.
8. As could be seen from Section 375 of IPC, which reads as under:
“375. Rape.- A man is said to commit “rape” if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, Under the circumstances falling under any of the following seven descriptions:-
First.- Against her will. Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly.- With or without her consent, when she is under eighteen years of age.
Seventhly.-When she is unable to communicate consent.
Explanation 1.- For the purposes of this section, “vagina” shall also include labia majora.
Explanation 2.- Consent means 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:
Provided 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.
Exception 1.- A medical procedure or intervention shall not constitute rape.
Exception 2.- Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.”
9. On close reading of Section 375 r/w Section 376 of IPC, that if a man has a sexual intercourse with a woman under the circumstances stated therein, then it amounts to rape. If the said intercourse is under the promise to marry, it constitutes rape only if from initial stage accused had no intention to keep the promise and if the said fact has been established by the prosecution with that intention he has sexual assault on the victim. Then under such circumstances, it can be said that there is some material as against the petitioner/accused to frame the charge. At this juncture, now the mental attitude of the accused and the victim cannot be assessed by the Court so as to discharge the accused for the alleged offences.
10. For framing of the charge the Court has to consider judicially whether consideration of all the materials on record it can be said that the accused has been reasonably connected with the offence alleged against him and there is a reasonable probability or chance of accused being found guilty, then the Court below instead of discharging the accused can frame the charge.
11. In the instant case on hand it is not the case of the petitioner/accused that he had no sexual act with the victim who has given the complaint and admittedly the victim has become pregnant and delivered the child, that itself clearly goes to show that some body has raped. It is the specific contention of the complainant that it is the petitioner/accused who has promised and had a physical contact and as a result of the same she has become pregnant. The question remains whether the accused with that intention to promise falsely has a physical contact and as a result of the same she became pregnant.
12. It is well settled principles of laws that if a strong suspicion is created the Court cannot say that there is no sufficient ground for proceeding against the petitioner/accused and in that light the charge can be framed against the accused on the basis of the strong suspicion.
13. The learned counsel for the petitioner has relied upon the decision of the Hon’ble Apex Court in the case of Dr.Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and others in Criminal Appeal No.1443/2018 arising out of SLP(Crl.) 6532/2018.
14. I have carefully and cautiously gone through the said decision including the paragraph Nos.18 to 21. With all due respects the said decision is not applicable to the present facts of the case on hand and it is also well established principles of law that the ratio has to be seen with reference to the facts and circumstances of this case and the said case is also decided while considering the appeal against the order of conviction. In that light, the said proposition of law will not help the case of the petitioner/accused in this behalf.
15. Looking from any angle there is strong suspicion to show that the accused person is involved in the alleged incident and it is not a fit case to discharge at this juncture. I have carefully and cautiously gone through the order of the trial Court. The trial Court after considering the material placed on record has come to a right conclusion, there is no perversity or illegality while passing the order.
16. The present revision petition is devoid of merits and as such it is not admitted and accordingly dismissed.
The above observation will not come in the way of the trial Court while deciding the case on merits.
In view of dismissal of the petition, IA No.1/2018 does not survive for consideration and the same is accordingly dismissed.
VBS/AP Sd/- JUDGE