IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.1042 OF 2018 BETWEEN:
State of Karnataka by Adugodi Police Station Bengaluru Represented by State Public Prosecutor High Court Building, Bengaluru-560 001.
(By Sri. V.M. Sheelvanth SPP-1 and Sri. M. Diwakar Maddur, HCGP) AND:
Naveen, S/o Ganapaiah B.H, Aged about 28 years, R/a 15th Cross, Wilson Garden, Lakkasandra, Bengaluru-560 030 (By Sri. B. Lethif, Advocate) ...Petitioner ...Respondent This Criminal Revision Petition is filed under Section 397 read with 401 of Criminal Procedure Code, praying to set aside the order dated 05.05.2018 in S.C.No.48/2018 on the file of LIII Additional City Civil and Sessions Judge, Bengaluru (CCH-54) and allow this Crl.RP.
This Criminal Revision Petition coming on for ‘Dictating Orders, the Court made the following:
ORDER This petition has been filed by the State challenging the order passed by LIII Additional City Civil and Sessions Judge, Bengaluru in S.C.No.48/2018 dated 05.05.2018.
2. I have heard the learned Special Public Prosecutor-I for the State and learned counsel for respondent-accused.
3. The factual matrix of the case as contended by the complainant in brief are that, the victim and accused were having affair for past two years since July 2014. Accused promised to marry her and had a physical contact with her. Believing his words, she submitted herself to the accused. Due to the physical relationship, she became pregnant and subsequently she got aborted. Subsequently, in the first week of July 2016, accused and the victim met at Wilson Garden Layout and again had a physical relationship and again she became pregnant and she got aborted. Subsequently, when the victim requested the accused to marry her and all the efforts were made in this behalf have become in vain and she came to know that the accused have cheated her under a false promise. In that light, complaint was registered.
4. The investigation Agency, after due investigation, filed the charge sheet. The Jurisdictional Magistrate committed the case 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 charge, at that time, the application came to be filed under Section 227 of Cr.P.C for discharge. After considering the same, the Court below has dismissed the said application. Challenging the legality and correctness of the said order, the State is before this Court.
5. The main grounds urged by the learned Special Public Prosecutor are that the impugned order of the Court below is illegal and contrary to law and probabilities of the case and as such, it is liable to be set aside. The Court below has not gone through the entire charge sheet material and intention of the accused. Without looking to the said fact, the order of discharge has been passed that has resulted in miscarriage of justice. It is further submitted that the Court has to ascertain whether the accused had intention to get married with the victim or not at the time they had a physical contact or whether there was no free and valid consent by the victim. Without ascertaining the said fact, the impugned order has been passed. It is further submitted that prima facie, the charge sheet material goes to show that the accused with an intention to cheat the victim had a physical contact and thereafter he has refused to marry her. He further submitted that looking from any angle, order of the trial Court is not sustainable in law. It is further submitted that the decision in the case of UDAY VS. STATE OF KARNATAKA reported in (2003) 4 SCC PAGE – 46 is not applicable to the present facts of the case on hand. In the said decision itself it has been clearly observed that, there is no straitjacket formula to apply the said rule and the case has to be considered on its facts. Considering the evidence and surrounding circumstances, in the instant case, the surrounding circumstances, if they are looked into, it clearly makes it a case that the accused with an intention to cheat, he had physical contact with the victim and thereafter he has refused to marry her. It is further submitted that, at the time of hearing the case under Section 227 of Cr.P.C., the Court can evaluate the material and documents on record for limited purpose. But under such circumstances, the Court below has held a mini trial and thereafter it has passed the impugned order. Shifting of evidence in its entirety was not warranted, at that stage. Court cannot hold a mini trial. On these grounds, he prays to allow the petition and to set aside the impugned order.
6. Per contra, learned counsel for the respondent-accused vehemently argued and contended that the victim is aged about 24 years and both of them were working in wonder la organization. They became friends and acquainted with each other and they had a physical contact with consent of the victim and was also knowing the consequences. It is his further submission that the material and conduct of the accused and victim, if it is taken into consideration, it clearly goes to show that the accused was ever ready and willing to marry the victim and even he has suggested to the parents of the victim. But only because the father of the accused did not agree to the said settlement and as such the marriage has not been held. It is further submitted that conduct of the accused if it is looked into, even he has tried to commit suicide, when the father of the accused refused to get married with the victim. It is further submitted that the trial Court, after considering all the materials placed on record, has come to a right conclusion and has rightly acquitted the accused. It is further submitted that ultimate analysis, considering the question of consent, that the conduct of both the parties if it is looked into, the conduct itself indicates that it was consensual sex. Even as per the content of the complaint, she has become pregnant for two times and she herself got aborted. In that light, if the said factual matrix if they are looked into, then under such circumstances, the said case falls within the premise of the discharge. It is further submitted that the promise of marriage must have been a false promise given in bad faith and no intention of being adhere to at the time it was given. The factual matrix does not support the case. In order to substantiate his arguments he has relied upon the decision in the case of PRAMOD SURYABHAN PAWAR VS STATE OF MAHARASHTRA reported in AIR 2019 SCC 4014. It is further submitted that the material in its entirety, if it is looked into, there is no clear and cogent evidence to bring home the guilt of the accused. On these grounds, he prays to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.
8. On going through the trial Court records, it is specific case of the complainant that the accused and victim were acquainted with each other and they were working in wonder la organization and developed affection towards each other and accused promised to marry her and in that light, they had a physical relationship with each other and thereafter she became pregnant which was also terminated. Entire material if it is looked into, it goes to show that accused himself has also tried to marry her and in the complaint itself it has been mentioned. After she left wonder la organization, they had physical contact and when she had symptoms of pregnancy and asked the accused to speak to his parents regarding their marriage, he tried to convince his father. On 10.08.2016, he had called her father and mentioned that he is going to commit suicide, by stating the reasons that his father denied to agree to fix a marriage as she belongs to Christian religion. Other records also goes to show that, accused had met the parents regarding the marriage and agreed to marry the victim and at that time also accused told the victim as well as her parents that he will convince his father and he is ready to marry her. In that light, if the material, if it is looked into, it clearly goes to show that since from the beginning the accused was intending to marry. In the ultimate analysis the test laid down by the courts provide at best guidance to the judicial mind while considering a question of consent. It is observed by the Hon’ble Apex Court that the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case differs. Even it has been observed in the case of UDAY V. STATE OF KARNATAKA reported in 2003(4) SCC 46 at paragraph No.21 and 23 which reads as under:
“21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has it own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”
“23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.”
Wherein it has been observed that the complaint lodged on failure of appellant to marry her, for such cases, it has been held that the consent cannot be said to be given under misconception of fact. The said factual matrix and the issue laid down in the case of Uday quoted supra are rightly applicable to the present fact of the case on hand. Even it has been observed that in the case of Pramod quoted supra at paragraph No.14, 15 and 18, it has been observed as under:
14. In the present case, the “misconception of fact” alleged by the complainant is the appellant’s promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni V. State of Chhattisgarh, this Court held:
“37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC.”
Similar observations were made by this Court in Deepak Gulati V. State of Haryana reported in (2013) 7 SCC 675.
“21….There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused…”
15. In Yedla Srinivasa Rao v. State of Andhra Pradesh reported in (2006) 11 SCC 615, the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. when the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Giving this factual background, the court observed:
“10. It appears that the intention of the accused as per the testimony of PW1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise of marriage. This kind of consent taken by the accused with clear intention not to fulfill the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception cannot be treated to be a consent…”
18. To summarize 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.
Wherein it has been observed that 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. The factual matrix if they are looked into they clearly goes to show that victim and the accused have moved together and thereafter he has also mentioned the fact of marrying her and even he has tried to convince his father and his father has not agreed to marry with the victim as she belongs to Christian religion. In that light, if factual matrix, if they are taken into consideration, even under such circumstances, there is no any false promise or obtaining false consent, at the time they had physical contact with each other. In that light, if the entire case of the prosecution, if it is looked into, it amounts nothing but consensual and it is not considered to be a false promise. This aspect has also been elaborately discussed in the case of DR. DHRUVARAM MURLIDHAR SONAR V. STATE OF MAHARASHTRA AND OTHERS reported in AIR (2019) SC 327. Keeping in view the ratio laid down in the said decision, the contention taken up by the learned Special Public Prosecutor is not acceptable. The appellant- petitioner has not made out any good grounds, so as to interfere with the order of trial Court and order of the trial Court deserves to be confirmed and criminal revision petition is dismissed as devoid of merits.
Accordingly, criminal revision petition is dismissed.
Sd/- JUDGE ag