Allowed

Prakash v. the State of Karnataka

Karnataka HC14 Jul 2022CRL.P/2189/2021

Case brief

AI extract

What is this about?

The High Court allowed a petition under Section 482 Cr.P.C. seeking quashing of rape and cheating proceedings. Quashing was granted as the allegations involved a breach of a promise to marry between long-term partners, which the Court held does not constitute a misconception of fact to vitiate consent.

What did the court decide?

The entire proceedings in S.C.No.1987/2019 stand quashed qua the petitioner.

Prakash Vs the State of Karnataka — Murder and Culpable Homicide | Karnataka HC (2022)

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CRL.P No. 2189 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 2189 OF 2021

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BETWEEN:

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PRAKASH S/O MADEVA M AGED 29 YEARS R/AT NO.111 MARUTHINAGAR MAHADESHWARANAGAR MAIN ROAD OX BRIDGE COLLEGE HEROHALLI BENGALURU-560 091

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…PETITIONER

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(BY SRI. S V PRAKASH.,ADVOCATE)

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AND:

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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THE STATE OF KARNATAKA REP BY KEMPAPURA AGRAHARA POLICE STATION VIJAYANAGAR SUB DIVISION BENGALURU - 560040 REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING HON'BLE HIGH COURT OF KARNATAKA

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CRL.P No. 2189 of 2021

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BENGALURU-560 001

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SHRUTHI G D/O SRI GOVINDARAJU AGED ABOUT 28 YEARS RA/T NO.U-73 17TH CROSS K P AGRAHARA MARIYAPPA COMPLEX BHUVANESHWARINAGARA MAGADI ROAD BENGALURU-560 023

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…RESPONDENTS

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[BY SRI. K.S. ABHJITH, HCGP FOR R1; SRI. D.S. MALIPATIL DODDAPPA, ADVOCATE FOR R2 (ABSENT)]

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CRL.P FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONBLE COURT MAY BE PLEASED TO QUASH THE ENTIRE PROCEEDINGS IN S.C.NO.1987/2019 PENDING ON THE FILE OF THE LEARNED LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE PRODUCED AT ANNEXURE-W, AWARD THE COST OF THEIR PROCEEDINGS.

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THIS CRIMINAL PETITION COMING ON FOR FURTHER HEARING THIS DAY, THE COURT MADE THE FOLLOWING:

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CRL.P No. 2189 of 2021

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ORDER

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The petitioner is before this Court calling in question

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the proceedings in S.C.No.1987/2019 registered for offences punishable under Sections 376, 420 read with Section 34 of the IPC.

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Heard the learned counsel, Sri. S.V. Prakash

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appearing for the petitioner and the learned HCGP, Sri. K.S. Abhijith appearing for respondent No.1. Learned

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counsel appearing for respondent No.2 has remained absent throughout. Owing to his absence, this Court has passed the following orders:

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On 13.04.2022:

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"Heard the learned counsel for the

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petitioner.

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Awaiting appearance of the learned counsel for respondent No.2, list this matter on 21.04.2022, for further hearing."

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On 21.04.2022:

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"Heard the learned counsel for the petitioner.

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CRL.P No. 2189 of 2021

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Learned counsel representing respondent

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No.2 has been absent throughout. On 13.04.2022 and even today, there is no representation on behalf of respondent No.2.

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The issue stands covered by the judgment of the Apex Court in the case of DHRUVARAM MURLIDHAR SONAR V. STATE OF MAHARASHTRA reported in (2019) 18 SC 181 .

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Therefore, there shall be an interim order of stay of further proceedings in S.C.No.1987/2019, pending on the file of LXXX Additional City Civil and Sessions Judge, Bengaluru, till the next date of hearing, qua the petitioner.

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List this matter on 02.06.2022".

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On 10.06.2022:

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"Heard the learned counsel for the petitioner.

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Learned counsel for respondent No.2 has remained absent intermittently right from inception. This Court on 13.04.2022 had posted

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the matter for further hearing the learned counsel for the petitioner.

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On 21.04.2022, this Court had passed the following order:

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"Heard the learned counsel for the petitioner.

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Learned counsel representing respondent No.2 has been absent throughout. On 13.04.2022 and even today, there is no representation on behalf of respondent No.2.

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The issue stands covered by the judgment of the Apex Court in the case of DHRUVARAM MURLIDHAR SONAR V. STATE OF MAHARASHTRA reported in (2019) 18 SC 181 .

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List this matter on 02.06.2022."

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CRL.P No. 2189 of 2021

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Even today, there is no representation on behalf of respondent No.2. Awaiting appearance of the learned counsel for respondent No.2, list the matter on 17.06.2022.

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In the event, there is no representation on behalf of respondent No.2, the matter would be taken and considered in his absence.

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Interim order granted earlier, is extended till the next date of hearing."

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On every occasion, when the matter is listed, the learned counsel for respondent No.2 remains absent. Even today, when the matter was listed for further hearing, there is no representation on behalf of the learned counsel appearing for respondent No.2.

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Brief facts that leads to filing of the present petition by the petitioner is that:

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The petitioner and respondent No.2 were

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schoolmates and the petitioner claims that they were in love with each other from the year 2009 and continued to be in the said relationship for 10 years. After about 10

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years, the complainant registers a complaint on 29.06.2019 alleging offences punishable under Sections 376 and 420 read with Section 34 of the IPC.

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On registration of the crime, the police conduct investigation and file a charge sheet against the petitioner for the aforesaid offences. It is filing of the charge sheet before the concerned Court that drives the petitioner to this Court in the subject petition calling in question the entire proceedings in S.C.No.1987/2019.

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Learned counsel appearing for the petitioner would vehemently contend that the entire allegation against the petitioner is untenable as the petitioner and respondent No.2 were in love for the last 10 years and have had physical relationship with each other for more than 5 years and the complainant registers a complaint notwithstanding such relationship and would submit that a consensual act can neither become offence under Section 376 of the IPC nor breach of promise of marriage would

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become an offence of cheating under Section 420 of the IPC.

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Learned HCGP appearing for respondent No.1

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would refute the submission to contend that the complaint does narrate allegations which would touch upon the offences under Sections 376 or 420 of the IPC as the case would be and the police having filed the charge sheet, the petitioner has to face trial and come out clean. He would seek dismissal of the petition.

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The afore-narrated facts are not in dispute. The

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entire issue springs from the complaint so registered by the complainant, it is germane to notice the preamble of the complaint itself:

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«µÀAiÀÄ:- £À£Àß£ÀÄß ¦æÃw¹ £À£ÀUÉ EµÀÖ«®è¢zÀÝgÀÄ £À£Àß C£ÀÄªÀÄw E®è¢zÀÝgÀÄ £À£Àß eÉÆvÉ PÀÆægÀªÁV £À£Àß£ÀÄß vÀÄA¨Á »A¹¸ÀÄvÀÛ, zÉÊ»PÀ ¸ÀA¥ÀPÀð ªÀiÁr ªÀÄzÀÄªÉAiÀiÁUÀÄvÉÃ£ÉAzÀÄ £À£Àß£ÀÄß £ÀA©¹ ªÉÆÃ¸À ªÀiÁrgÀÄªÀ ¥ÀæPÁ±ï JA. vÀAzÉ ªÀÄºÀzÉÃªÀ, vÁ¬Ä gÀvÀßªÀÄä, vÀªÀÄä ²ªÀªÀÄzsÀÄ «gÀÄzÀÞ zÀÆgÀÄ."

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(Emphasis added)

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The narration in the preamble of the complaint

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depicts the petitioner and respondent No.2 being in love

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since 2009 close to 10 years prior to registration of the complaint and have had such physical relationship, which according to the complainant would become offence punishable under Section 376 of the IPC. The relationship between the petitioner and respondent No.2 is not in dispute as even the charge sheet filed after investigation also narrates that the petitioner and respondent No.2 were in love with each other for 10 years. Having been together for 10 years and having indulged in consensual sex, would not amount to an offence of rape under Section 376 of the IPC, is what is held by the Apex Court.

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The Apex Court, while delineating inter-play between promise of marriage and allegation of rape, in the case of PRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA¹ , has held as follows:

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“ 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

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1 (2019) 9 SCC 608

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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 [Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1: 2019 SCC OnLine SC 509], this Court held:

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“ 12. 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 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 Sections 375 IPC and can be convicted for the offence under Section 376 IPC. ”

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Similar observations were made by this Court in Deepak Gulati v. State of Haryana (2013)7 SCC 675: (2013) 3 SCC (Cri) 660] (Deepak Gulati):

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“ 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; ”

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15. In Yedla Srinivasa Rao v. State of A.P. (2006)11 SCC 615:(2007) 1 SCC (Cri) 557] the accused forcibly established sexual relations with the

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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. Given this factual background, the Court observed:

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“10. It appears that the intention of the accused as per the testimony of PW 1 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 for marriage. This kind of consent taken by the accused with clear intention not to fulfil 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. ”

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16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman's “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675:(2013) 3 SCC (Cri) 660] this Court observed: (SCC pp. 682-84, paras 21 & 24)

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“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; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently .

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24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her .”

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(emphasis supplied)

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17. In Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] the complainant was a college-going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The Court observed that in these circumstances the accused's promise to marry the complainant was not of immediate relevance to the

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complainant's decision to engage in sexual intercourse with the accused, which was motivated b y o t h e r f a c t o r s : ( S C C p . 5 8 , p a r a 2 5 )

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“25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in

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love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. ”

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(emphasis supplied)

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18. To summarise 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. ”

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(emphasis supplied)

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In the light of the undisputed facts obtaining in the case at hand and the judgments rendered by the Apex Court in the case of PRAMOD SURYABHAN PAWAR (supra) and DHRUVARAM MURLIDHAR SONAR V. THE

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