IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 31ST DAY OF JANUARY, 2018
:BEFORE:
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA
CRIMINAL PETITION NO. 711/2017
BETWEEN:
1. MR ALOKA KUMAR
S/O GOVINDAPPA,
AGED ABOUT 27 YEARS,
RESIDING AT ALURU,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK-562123.
2. MR GOVINDAPPA
S/O RANGAPPA,
AGED ABOUT 52 YEARS,
RESIDING AT ALURU,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK-562123.
3. MR SRINIVAS
S/O GOVINDAPPA,
AGED ABOUT 29 YEARS,
RESIDING AT ALURU,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK-562123.
4. MRS SUMA
W/O VEERE GOWDA,
AGED ABOUT 31 YEARS,
RESIDING AT BHATTARAHALLI,
KASABA HOBLI,
NELAMANGALA-562123.
5. MR VEERE GOWDA
S/O NAGARAJU,
2
AGED ABOUT 35 YEARS,
RESIDING AT BHATTARAHALLI,
KASABA HOBLI,
NELAMANGALA-562123.
… PETITIONERS
(BY SRI.AMIT DESHPANDE, ADV.)
AND:
1. THE STATE OF KARNATAKA
BY MADANAYAKANAHALLI POLICE STATION.
REP. BY SPP, HCK, BANGALORE-560001.
2. SMT. MUNIRATHNAMMA
W/O LATE NARAYANAPPA,
NO.48, MUDDAHANUMAIAH LAYOUT,
RAJESHWARINAGAR, DOMBARAHALLI,
DASANAPURA HOBLI,
BANGALORE NORTH-562123.
… RESPONDENTS
(BY SRI.S.RACHAIAH,HCGP FOR R1
SRI. RAKSHITH.K.N., ADV. FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER
SECTION 482 CR.P.C PRAYING TO QUASH THE CHARGE
SHEET WHICH IS AT ANNEXURE-D IN
C.C.NO.2010/2016 ON THE FILE OF LEARNED CIVIL
JUDGE AND J.M.F.C., NELAMANGALA FOR THE OFFENCE
P/U/S 143,376,323,504,506,417 R/W 34 OF IPC.
THIS CRIMINAL PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 22.01.2018, COMING
ON FOR ‘PRONOUNCEMENT OF ORDER’, THIS DAY
K.N. PHANEENDRA, J. MADE THE FOLLOWING:
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ORDER
This petition is filed for quashing of the cognizance
taken by the Civil Judge JMFC, Nelamangala and also
for quashing of the charge sheet filed in CC
No.2010/2016 on the file of the learned Civil Judge
JMFC, Nelamangala for the offence punishable under
sections 143, 376, 323, 504, 506, 417 read with Section
34 of IPC.
2. Heard the learned counsel for the petitioners
and the respondent No.2 and also the learned High
Court Government Pleader for respondent No.1.
Perused the records.
3. The learned counsel for the petitioners
strenuously contends that none of the offences are
constituted, even on careful perusal of the entire charge
sheet papers including the statement of the victim girl.
He further contends that on perusal of the charge sheet,
it clearly discloses that it is a consensual sex between
the petitioner No.1 as well as respondent No.2.
Therefore, Section 376 or 417 of IPC are not applicable.
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The victim girl is aged more than 18 years and she
knowing fully well about the consequences, has joined
hands with the petitioner No.1 and have had sexual
activity with each other. Therefore, there was no
question of petitioner persuading her on the guise of
marrying her and to have sexual intercourse with her.
There is long lapse of time for more than seven years in
lodging the complaint from the date of the alleged
offence.
4. The learned counsel relied upon various
decisions in this regard and prayed for quashing of the
entire proceedings.
5. The learned counsel for the petitioners further
contends that there is no allegations of whatsoever so
far as the petitioners 2 to 5 are concerned, who are only
the relatives of the petitioner No.1. No charges can be
leveled against them for the offence punishable under
sections 376 or 417 of IPC.
6. Per contra, the learned counsel for the
respondent No.2 strenuously argued before this court
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that the victim girl has categorically stated about the
persuasion made by petitioner No.1 to have sexual
intercourse with her even though she was not willing.
Because of misconception of fact that he would marry
her, she surrendered to his lust. Therefore, it is too
premature stage to come to any conclusion that,
whether it is a consensual sex or only due to any
misconception of fact, the petitioner has persuaded the
daughter of the second respondent to have sex with her
that he would marry her etc.,
7. In this background, the court has to first
examine the factual aspects of this case and then the
rulings relied upon by the parties and find out whether it
is a fit case to quash the proceedings altogether without
appreciating any materials on record simply accepting
the facts of this case as it is.
8. The brief factual matrix of the case are that
the daughter of the second respondent, who is no other
than the mother of the victim girl has lodged a
complaint stating that accused No.1 (Aloka Kumar
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petitioner No.1 herein), had been in love with her
daughter since six years. The Petitioner No.1 has been
persuading the victim girl and assuring her that he
would marry her for the past three years. On that
assurance, though the victim had no interest or had no
willingness, he forcibly have had intercourse with her
and continued the same. When the second respondent
and his family members have enquired this aspect and
asked the petitioner No.1 and others to marry the victim
girl and he flatly refused for the same on the guise of
the advice by other family members. In this context on
23.3.2016, the victim girl made an attempt to commit
suicide. Thereafter, in fact, she has written a detailed
letter to the Police Inspector, and thereafter the
respondent No.2 and victim girl had been to the Police
Station and lodged a complaint. On the basis of such
complaint, the Police have investigated the matter and
laid charge sheet for the offence punishable under
section 143, 376 and 417 of IPC.
9. During the course of investigation, the Police
have also recorded the statement of the victim girl and
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in fact, she has stated in detail as to how the
relationship developed between herself as well as
petitioner No.1 and how the petitioner No.1 persuaded
her for sexual activity. Though, she was not interested
to have sexual activity with him, on the basis of
misconception that he would marry her, she has co-
operated with petitioner No.1.
10. Apart from the above, the second respondent
has also given her further statement. The Police have
recorded the statement of many number of witnesses in
this regard. In this background, on the basis of the
above said facts, the court has to ascertain, whether it
is a fit case to quash the entire proceedings.
11. Now, let me consider the rulings cited by the
learned counsels on either side.
12. The learned counsel for the petitioners has
relied upon a decision of this court reported in 2017
(6) KAR.LJ 365 between D.S. Karthik Vs. State by RT
Nagar Police Station, Bengaluru, and another, wherein
this court has observed that –
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“Consensual sex between accused and
complainant will not constitute an offence
u/s.417 or 376 of IPC to hold a person
guilty of an offence punishable u/s.417 of
IPC. It must be shown that dishonest
intention of cheating existed at the time of
making promise of marriage. – On facts,
held mere allegation of cheating without
any prima facie material of sexual
exploitation would entitle the complainant
to damages in tort.”
13. The present ruling is not applicable because
the court considering the factual aspect of that case
came to such conclusion that, both the parties have
joined together and it is alleged in the said case, that
the victim was taken by the accused by flight to
Mangaluru on 5.6.2014 and he had taken her to a home
to the petitioner and declared that he has married her
and then he had taken her to the pooja room and tied a
robing thali and on the same night, they had physical
relationship and they have continued the same.
Therefore, considering the age of the girl and as well as
there was no persuasion with regard to the fact that he
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would marry her, but actually according to them, the
marriage had already been taken place. Therefore, they
had joined together. Therefore, the said ruling is not
applicable to the facts of the present case.
14. The other rulings which are cited by the
learned counsel for the petitioners are reported in (1)
2013 (5) KLJ 700 between Anjinappa Vs. State by
Halavagalu Police Station, Davanagere Dist.; (2)
MANU/SC/0948/2004 between Deelip Singh @ Dilip
Kumar Vs. State of Bihar; (3) 2016 Crl.LJ 1136
between Tilakraj Vs. State of Himachal Pradesh. In
these decisions, the Hon’ble Apex Court has observed
that consent taken on the basis of promise of marry will
not attract Section 376 of IPC in any of the
circumstance, but it was also said that it all depends
upon the facts and circumstances of each case.
Further, the learned counsel for the petitioner has relied
upon the decision of the Delhi High Court in Criminal
Appeal No.944/2016 rendered on 25.9.2017 between
Mohmood Farooqui Vs. State (Govt. of NCT of Delhi)
and another decision of this court in Criminal Appeal
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No.3626/2010 between Basavaraj Vs. State of
Karnataka rendered on 11.3.2015.
15. In all these decisions, the Hon’ble Apex Court
and High Courts, though observed that consent taken
on the basis of promise to marry will not attract Section
376 of IPC, but whether promise to marry is in fact
created a mis-conception of fact for the prosecutrix to
surrender herself to the lust of the accused is the moot
question to be decided. In all the above said cases, the
High Court and the Supreme Court have considered the
said aspect on the basis of the entire evidence on
record. In all those matters, the accused was either
convicted or acquitted and thereafter, they went upto
High Court and Supreme Court and both the courts have
had opportunity of appreciating the oral and
documentary evidence on record in order to come to
such conclusion in those cases that, promise to marry
was not a mis-conception of fact.
16. The respondent’s counsel in this regard has
also relied upon a decision of the Hon’ble Apex Court in
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Criminal Appeal No.1369/2004 rendered on 29.9.2006
between Yedla Srinivas Rao Vs. State of AP. In that
case, the Hon’ble Apex Court had an opportunity to the
entire materials on record because it went upto
Supreme Court against the judgment of conviction of
the accused. However, in the said decision, it is said
that if sexual intercourse has been committed by the
accused if it is proved that it was without the consent of
the prosecutrix and she states in her evidence before
the court that she did not consent, the court shall
presume that, she did not consent. Presumption has
been introduced by the legislature in the Evidence Act
looking to atrocities committed against women. In the
instant case as per the statement of PW-1 she re-
iterated and she did not give consent to the accused at
the first instance and in spite of that he has committed
intercourse on the assurance that he would marry her
and continue to satisfy his lust till she became pregnant
etc., Therefore, the court held misconception of fact of
promise to marry has to be tested during the course of
trial.
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17. Now, coming back to the factual aspects of
this matter, as I have already narrated that there is a
specific allegation in the complaint so far as A1 is
concerned that he has promised to marry the victim
lady and thereafter, he had sexual intercourse with her
and ultimately, he refused to marry her and according
to the prosecution, the accused has used her only for
the purpose of his sexual lust not more than anything in
this regard. Therefore, this factual aspect whether she
surrendered herself otherwise than this promise to
marry and the accused had no intention to marry her at
the initial stages and in spite of that, he tried to
persuade her to have his sexual lust satisfied, all these
facts have to be tested during the course of framing of
charges by the Court or at the time of evidence, but this
court cannot add or subtract anything to the statement
of the victim and the charge sheet papers. Even the
court cannot weigh the materials on record, to come to
any conclusion which can be done by the Trial Court at
the time of hearing the matter before framing of
charges.
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18. So far as the other accused persons are
concerned, there is hardly any allegation for the
offence punishable under Section 376 and 417 of IPC
directly applicable to them even to frame charges, but
there are other allegations against them which broadly
attract Section 504 and 506 etc., Therefore in my
opinion, which accused has to be charged under which
provision of law has to be taken care of by the Trial
Court at the time of hearing the matter before framing
of charges. Therefore, under the above said
circumstance, when the allegations broadly sufficient to
constitute the offences alleged, while exercising powers
u/s.482 of Cr.PC., the court should not venture upon to
imagine something and appreciate the materials on
record in order to draw any inference.
19. Considering all the above said decisions as
noted above, again it remains as a fact as to whether
the said lady has surrendered herself to the lust of the
accused or not, or only on the misconception of fact of
marriage or any act done to any other thing, it all
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depends upon her mental capacity, thinking capacity,
surrounding circumstances etc., which have to be
considered by the court at the later stages.
Under the above said circumstances, I do not find
any strong reasons at this stage to quash the entire
proceedings against the accused persons. Hence, the
petition deserves to be dismissed. Accordingly,
dismissed.
Sd/-
JUDGE
PL*