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2018 DIGILAW 153 (KAR)

Aloka Kumar v. State of Karnataka

2018-01-31

K.N.PHANEENDRA

body2018
JUDGMENT : 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. 1. 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 C.C. 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. 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 that the victim girl has categorically stated about the persuasion made by petitioner No.1 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. 6. Per contra, the learned counsel for the respondent No.2 strenuously argued before this court that the victim girl has categorically stated about the persuasion made by petitioner No.1 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 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 post 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. 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 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- “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. 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 an robbing shall 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 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 leaned counsel for the petitioners are reported in (1) 2013 (5) KLJ 700 between Anjijappa 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. Stage 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 No.3626/2010 between Basavaraj Vs. State of Karnataka rendered on 11.3.2015. 15. 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 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 misconception 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 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 it 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. 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. 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 list 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 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. 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.P.C., 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 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.