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Mr Aloka Kumar vs The State Of Karnataka on 31 January, 2018

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:
3

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.
4

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
5

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
6

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
7

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 –

8

“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
9

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
10

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
11

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.

12

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.

13

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
14

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*

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