Allowed

K T Lingaraja v. the State of Karnataka

Karnataka HC27 Nov 2024CRL.A/875/2013

Case brief

AI extract

What is this about?

This criminal appeal challenged the conviction for rape and cheating arising from a consensual relationship founded on an unfulfilled promise of marriage. The High Court acquitted the appellant, holding that there was no evidence of a false promise made in bad faith or a misconception of fact that vitiates consent under Section 90 IPC.

What did the court decide?

The judgment of conviction and sentence was set aside; the appellant was acquitted of offences under Sections 376 and 417 IPC, and any fine was ordered to be refunded.

K T Lingaraja Vs the State of Karnataka — Cheating and Forgery | Karnataka HC (2024)

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NC: 2024:KHC:48483 CRL.A No. 875 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR CRIMINAL APPEAL No. 875 OF 2013

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BETWEEN:

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K T LINGARAJA S/O THIPPANNA AGED ABOUT 24 YEARS OCC: AGRICULTURIST R/O KALLADEVARAPURA VILLAGE JAGALUR TALUKA DISTRICT DAVANAGERE - 577 528.

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…APPELLANT

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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(BY SRI P B UMESH, ADVOCATE FOR SRI R B DESHPANDE, ADVOCATE)

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AND:

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THE STATE OF KARNATAKA BY CHITRADURGA RURAL POLICE STATION - 577 501.

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…RESPONDENT

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(BY SRI A VENKAT SATHYANARAYANA, HCGP)

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THIS CRL.A. IS FILED UNDER SECTION 374(2) Cr.P.C PRAYING TO SET-ASIDE CONVICTION AND SENTENCE DATED 24/28.08.2013 PASSED BY THE ADDITIONAL DISTRICT & S.J., CHITRADURGA IN S.C.No.95/2010 - CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE PUNISHABLE UNDER SECTION 417, 376 OF IPC AND ETC.,

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THIS APPEAL COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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ORAL JUDGMENT

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This appeal is filed by accused No.1 praying to set aside the judgment of conviction and order on sentence dated 24.08.2023 passed in S.C.No.95/2010 by the Additional District and Sessions Judge, Chitradurga, whereunder the appellant -accused No.1 has been convicted for the offences punishable under Sections 376 and 417 of the Indian Penal Code (hereinafter referred to as “IPC” for brevity) and sentenced to undergo rigorous imprisonment for a period of 07 years and to pay fine of Rs.5,000/- for offence punishable under Section 376 of IPC and sentenced to undergo rigorous imprisonment for a period of 01 year and to pay fine of Rs.3,000/- for offence punishable under Section 417 of IPC. The trial Court has ordered that both sentences to run concurrently.

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The brief facts of the case are that the complainant –victim girl –P.W.1 is resident of Hireguntanuru

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village and the appellant –accused No.1 is her neighbour and they studied together in the same college and their friendship turned to be a love affair, and sine one year from the date of lodging complaint he enjoyed with her. He had also promised before her sister, uncle and other relatives that he would marry her and subsequently refused to marry her. He is preparing to marry another girl. On 25.02.2010 at about 8.00 p.m. when victim girl along with her parents, relatives and villagers had been to the house of the appellant –accused No.1 at Kalledevarapura and asked him to marry her. The appellant –accused No.1 and his relatives

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being accused Nos.2 to 9 abused them in filthy language, accused Nos.1 and 2 have assaulted them with hands and legs and all accused gave life threat to them. Even thereafter, she waited for sometime, hoping that the appellant –accused No.1 may come and marry her but since he did not turn up and she filed complaint. On that basis of the said complaint lodged by the victim girl the case came to be registered against the appellant –accused No.1 and other

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accused persons. The police after investigation have filed change sheet against the appellant –accused No.1 and other accused for offences punishable under Sections 143, 147, 420, 376, 506, 504 and 323 read with Section 149 of IPC.

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The case came to be committed to the Sessions

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Court. The Sessions Court has framed charges for offences punishable under Sections 143, 147, 420, 376, 506, 504 and 323 read with Section 149 of IPC. In order to prove charges,

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the prosecution has examined 13 witnesses as P.W.1 to 13 and got marked documents as Ex.P1 to 11. The statements of accused persons came to be recorded under Section 313 of Cr.P.C. Learned trial Judge after hearing arguments on both sides has formulated points for consideration and passed impugned judgment convicting the appellant – accused No.1 for offences punishable under Sections 376 and 417 of IPC and acquitted accused Nos.2 to 9. The said judgment of conviction and order on sentence has been challenged by the appellant –accused No.1 in this appeal.

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Heard learned counsel for appellant –accused

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No.1 and learned High Court Government Pleader for the respondent –State.

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Learned counsel for the appellant –accused No.1

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would contend that the victim girl was aged 25 years as on the date of offence and she is educated. She had love affair with the appellant –accused No.1 and the alleged act of sexual intercourse is consensual. The complaint came to be filed as the appellant –accused No.1 had refused to marry her. P.W.2 to 7 –relatives of the victim girl have not stated in their chief examination regarding sexual intercourse by this appellant –accused No.1 upon the victim girl –P.W.1. The doctor who examined the victim girl has issued certificate as per Ex.P5 wherein it is opined that there is no recent sexual intercourse and in the history it is noted that rape committed by accused No.1 is one year back. He contends that there is delay in filing complaint and first complaint said to be filed by P.W.1 during January -2010 has been suppressed. P.W.1 –victim girl has filed complaint only

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to see that this appellant –accused No.1 to marry her as he has refused to marry her. He further submits that considering the evidence on record, offences for which the appellant –accused No.1 has been convicted are not attracted. Learned counsel for the appellant –accused No.1 has placed reliance on the following decisions

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1. Suresh S/o Late Midachana Changgegowda Vs State of Karnataka¹

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2. Mandar Deepak Pawar Vs State of Maharashtra &Ant²

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3. Uday Vs State of Karnataka³

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4. Pramod Suryabhan Pawar Vs State of Maharashtra and Another⁴

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On these grounds, he prays to allow the appeal and acquit the appellant –accused No.1 for offences punishable under Sections 376 and 417 of IPC.

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Learned High Court Government Pleader for the

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respondent –State supported the reasons assigned by the

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1 Reported in Crl.A.No.1187/2012 decided on 02.07.2024

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2 Reported in 2022 LiveLaw (SC) 649

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3 Reported in (2003) 4 SCC 46

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4 Reported in (2019) 9 SCC 608

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trial Court in convicting the appellant –accused No.1 for offences charged against him. He further submits that the evidence of P.W.1 itself proves the charge against the appellant –accused No.1. The doctor who examined the victim girl has issued certificate as per Ex.P5 wherein it is noted that hymen of the victim is ruptured. The evidence on record is sufficient to convict the appellant –accused No.1 for offences punishable under Sections 376 and 417 of IPC. There are no grounds for allowing the appeal. With these, he prays for dismissal of the appeal.

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Having heard learned counsels, perusing the impugned judgment, trial Court records and considering the grounds urged, the following point arises for my consideration:

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Whether the Trial Court has erred in convicting the appellant –accused No.1 for the offences punishable under Sections 376 and 417 of IPC?

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My answer to the above point is in Affirmative for the following reasons

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The victim girl who has been examined as P.W.1 was aged 25 years as on the date of the offence. The victim girl and the appellant –accused No.1 were classmates, they became friends and their friendship turned into love affair. This appellant –accused No.1 stated to have promised the victim girl to marry her and under the promise of marriage he had sexual intercourse on her. Thereafter, this appellant –accused No.1 had also sexual intercourse for 04 times on the victim girl. P.W.1 –the victim girl filed complaint against this appellant –accused No.1 and others when the appellant –accused No.1 has refused to marry her. The said act of refusal of the appellant –accused No.1 to marry the victim girl is after 01 year of the alleged sexual intercourse by him upon the victim girl. The victim girl has stated she filed complaint during January -2010 and police secured the appellant –accused No.1 and others whereunder the appellant –accused No.1 agreed to marry the victim girl, at the time of marriage he fell down and he was taken to the hospital. The said aspect is not stated in the complaint filed

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by P.W.1. P.W.2 to 7 who are relatives of the victim girl have not stated in their evidence regarding this appellant – accused No.1 having sexual intercourse with the victim girl. The doctor who has examined the victim girl has issued certificate as per Ex.P5 wherein in the history it is stated that the appellant –accused No.1 has committed rape one year prior to the examination of the victim girl. P.W.9 – Doctor who examined the victim girl has opined that the victim girl might have underwent sexual intercourse but there is no recent evidence of sexual intercourse.

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The victim girl and the appellant –accused No.1 chose to have physical relationship without marriage for considerable period of time and for some reasons they fell apart. The FIR came to be lodged after one year. In a similar case, this Court in the case of Suresh S/o Late Midachana Channegowda Vs State(Supra) has observed as under

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“8. While considering a similar issue, in Sonu @ Subhash Kumar vs. State of Uttar Pradesh and Anr 5 , the Hon’ble Supreme Court has observed as under:

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“9. In Pramod Suryabhan Pawar vs. State of Maharashtra, (2019) 9 SCC 608, while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations:-

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“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…”

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Further, the Court has observed:

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“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

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5 2021 SCC Online SC 181

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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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9. In Maheshwar Tigga Vs. State of Jharkhand 6 , the question before the Hon’ble Supreme Court was whether the prosecutrix had consented to the physical relationship under any misconception of fact with regard to promise of marriage or whether her consent was based on fraudulent misrepresentation of marriage. The Apex Court has held that under Section 90 of IPC a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. The Apex Court has observed as under:-

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“15. In Uday vs. State of Karnataka, (2003 4 SCC 46, the Appellant and the prosecutrix resided

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6 (2020) 10 SCC 108

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in the same neighbourhood. As they belonged to different castes, a matrimonial relationship could not fructify even while physical relations continued between them on the understanding and assurance of marriage. This Court observed as follows:

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“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,

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in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its 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.” ”

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“20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday are considered relevant :-

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“25…It usually happens in such cases, when two young persons are madly in love, that they promise to

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each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented,

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because there were more reasons than

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one for her to consent.””

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10. In the instant case, the evidence on record indicates that the prosecutrix and the accused were known to each other. They had indulged in sexual relationship for a period of one and half years. The evidence of P.W.2-prosecutrix does not indicate that she had sexual relationship with the accused under misconception of fact, with regard to the promise of marriage or that her consent was based on fraudulent misrepresentation of marriage. There is no evidence on record to indicate that since the inception accused did not intend to marry her. In the absence of evidence to prove that the prosecutrix had consented for physical relationship on a misconception of fact, as stipulated under Section 90 of IPC, the mere refusal to marry would not constitute offence under Section 417 of the IPC.”

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In the present case, the evidence on record

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indicates that the victim girl and the appellant –accused No.1 were known to each other. They had indulged in sexual relationship for a period of 01 year. The evidence of P.W.1 – victim girl does not indicate that she had sexual relationship with the appellant –accused No.1 under misconception of fact, with regard to the promise of marriage or that her

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consent was based on fraudulent misrepresentation of marriage. There is no evidence on record to indicate that since the inception the appellant –accused No.1 did not intend to marry her. In the absence of evidence to prove that the victim girl had consented for physical relationship on a misconception of fact, as stipulated under Section 90 of IPC, the mere refusal to marry would not constitute offence under Section 417 of the IPC. As the alleged sexual intercourse is consensual and it does not also attract offence punishable under Section 376 of IPC. Considering the above aspects and evidence on record will not establish ingredients of offences punishable under Section 376 and 417 of IPC.

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Without considering the same, the learned Sessions judge has erred in convicting the appellant – accused No. 1 for the said offences. Considering the said aspects, there are grounds to allow the appeal and acquitting the appellant –accused No.1 for offences punishable under Sections 376 and 417 of IPC.

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11. In the result, the following

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ORDER

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i) The appeal is allowed.

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ii) The judgment of conviction and order on sentence dated 24.08.2023 passed in S.C.No.95/2010 by the Additional District and Sessions Judge, Chitradurga is set aside.

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iii) The appellant –accused No.1 is acquitted for offence punishable under Sections 376 and 417 of IPC.

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iv) The fine, if any paid by this appellant –accused No.1 is ordered to be refunded to him.

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Sd/-

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(SHIVASHANKAR AMARANNAVAR) JUDGE

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DSP

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List No.: 1 Sl No.: 4

K T Lingaraja v. the State of Karnataka

Case brief

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K T Lingaraja v. the State of Karnataka

Case brief

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