IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1190/2018 Between:
State of Karnataka by Chandra Layout Police Station. Bengaluru Represented by State Public Prosecutor High Court Building Bangalore – 01 … Petitioner (By Sri.V.M.Sheelvant, SPP-1) And:
Devanand S/o Puttaswamy D. Aged about 33 years R/a No.153, Old Kavalugundi Bhadravathi Taluk Shimoga District – 577 301 … Respondent (By Sri.Gowthamdev C.Ullal, Advocate) This Criminal Revision Petition is filed under Section 397(1) & 401 of Cr.P.C., pleased to set aside the order dated 02.05.2018, passed by the LIII Additional City Civil and Sessions Judge at Bangalore (CCH-54) in S.C.No.1646/2017.
This Criminal Revision Petition is coming on for final hearing, this day, the Court made the following:
O R D E R This petition has been preferred by the State against the order passed by the LIII Addl. City Civil and Sessions Judge, Bengaluru in S.C.No.1646/2017 dated 02.05.2018.
2. I have heard Sri.V.M.Sheelvant, learned Special Public Prosecutor for the State and Sri Gouthamdev C.Ullal, learned counsel for the respondent.
3. The factual matrix of the case as per the complaint are that the complainant was working in HDFC Bank and she was in love with accused since ten years. There was no contact with the accused since fourteen months and on 05.10.2015, he called and told that he has met with an accident and he will soon come to meet her parents and talk with them. Subsequently, he told that he is staying with his sister and he was not in contact with her, when she contacted his sister Asha Devi through phone, she abused with filthy language and threatened her. As such, she did not call her. Subsequently, on 03.07.2016, the notice has been issued from the advocate alleging that she is threatening the parents and abusing with filthy language and subsequently she should not call her parents and family members. Subsequently on 30.12.2016 along with Indian Daring Ladies Club and media people she went and met the parents of the accused and as such she is having suspicion against them and when she made an enquiry about them, since one year, she has left the house thereafter she got issued notice through a lawyer as such she has been insulted and defamed.
4. It is further alleged that the accused has misused her physically by saying that he is going to marry her. She once tried to commit suicide and the same fact has been informed to the concerned accused and as such she asked to take the cognizance of the said case. On the basis of complaint, a case has been registered in Crime No. 407/2016 and after investigation, the charge sheet has been filed. The Court below took the cognizance and committed the case after following the formalities to the Sessions Court. The Sessions Court took the cognizance and secured the presence of the accused and when the case was posted for hearing before the Court at that time the accused filed application under Section 227 of Cr.P.C. The same came to be allowed and the accused was discharged, challenging the same the State is before this Court.
5. The learned Special Public Prosecutor during the course of the argument submitted that the learned trial Judge has passed the contrary order without taking into consideration of the facts and law of the case. He submitted that after considering the material placed on record, the trial Court has come to a wrong conclusion.
6. It is his further submission that the complainant has made out the case that because of satisfying his lust, the victim has been sexually assaulted and left her without marrying her. It is his further submission that there is no consent and if the consent is obtained fraudulently and suppressing the fact, then under such circumstances that is not considered to be a free consent. It is his further submission that at the time of framing the charge, the Court has to consider whether there is any sufficient ground to proceed against the accused or not. It should not weigh the evidence and material brought before it meticulously.
7. It is his further submission that the trial Court without considering the said facts and circumstances has come to a wrong conclusion and has wrongly discharged the accused.
8. Per Contra, the learned counsel for the respondent-accused vehemently argued and contended that there is an inordinate delay of 10 years in filing the complaint. It is his further contention that the complaint itself clearly goes to show that she is a major and she is a law graduate and she was in love with accused since ten years. The material also clearly goes to show that she has moved freely along with the accused even to the parents house as well as the friends house and even they have attended the public functions jointly. It is his further submission that the entire material if it is looked into, it is nothing but a consensual sex. When she is major and she is a consenting party to the alleged incident, then under such circumstances the Court below has rightly appreciated the said facts and has rightly discharged the accused. It is his further submission that the physical contact with the victim was during 2011-2012 but the complaint was lodged on 31.12.2016. When she is capable of understanding the consequences of her act she has moved freely and she has also taken the photographs along with the accused. All these clearly establishes that it is a consensual sex with the accused then under such circumstances provision of Sections 376, 417 and 420 of IPC are not attracted. In order to substantiate his contention he has relied upon the decision in the case of Uday V/s State of Karnataka reported in (2003)4 SCC 46. On this ground, he prays to dismiss the petition.
9. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
10. The first and foremost contention taken up by the learned counsel for the respondent is that there is an inordinate delay of ten years in filing the complaint. I am conscious of the fact that in case of inordinate delay in lodging the first information report without their being any proper explanation then it is vitiate the entire proceedings and the Court cannot proceed with the matter. But, I am also conscious of the fact that if the delay is satisfactorily explained, the Court has to decide the case on merits without giving much importance to such delay. On going through the contents of the complaint and other material no where the delay of ten years in filing the complaint has not been properly explained by the complainant. In that light the entire case of the prosecution is going to be initiated because of non satisfactory explanation of the delay that too ten years delay in filing the complaint.
11. Be that as it may. I have carefully and cautiously gone through the factual matrix of the case on hand. On going through the factual matrix of the case on hand, it clearly goes to show that it is a consensual sex. Even there is no allegation that the said consent has been obtained under the misconception of the fact and even that there is no material to conclusively prove that the appellant has promised her to marry and thereafter he has fallen back and at the inception itself that the accused was not having any intention to marry. The material which has been produced including the photographs clearly goes to show that it is nothing but a consensual sex. It is well proposed proposition of law that the Court has to apply its mind to the factual matrix of the case and the surrounding circumstances and then it has to come to the conclusion that whether it is a consensual sex or not. On close reading of the entire material placed on record it is clearly goes to show that there is no material to come to the conclusion that it is a false promise or misconception of the fact that the accused had a physical contact with the victim. Even the records show that she has moved to the house of friends, relatives and also attended the function along with the accused to the marriage ceremony. Even as could be seen from the compliant when accused promised to marry the victim? What was his intension at that particular point of time? Whether she was knowing that he is intending to deceive her? All these materials are also absent in the present facts of the case on hand.
12. In that light also the trial Court after considering the said fact has come to a right conclusion. As could be seen from Section 375 of IPC, the legal position emerges that the consent of a woman with respect to Section 375 must involve an active and deliberation towards the proposed act to establish as to whether the consent was misconception of fact arising out of a promise for the marriage. The promise of marriage must have been a false promise given in that way and the false promise itself must be to attract to the woman to engage in the physical contact with the accused. In the instant case, they were having physical contact since more than ten years and in that light, if the material is looked into even if it is a consensual sex, there is no material to come to the conclusion that it is a false promise and with that intention they have been deprived.
13. Looking from any angle the trial Court after considering the factual matrix of the case, has come to a right conclusion and has rightly discharged the accused. There are no good grounds to interfere with the order of the trial Court. The order of the trial Court deserves to be confirmed and accordingly it is confirmed.
The Criminal Revision Petition is devoid of merits and the same is liable to be dismissed and accordingly it is dismissed.
Sd/- JUDGE HB/-