“If It Is Consensual, It Cannot Be Alleged That It Would Become An Ingredient Of Rape Under Section 375 Of The IPC, For It To Become Punishable Under Section 376 Of The IPC.”: Karnataka High Court
The Karnataka High Court on 28th February 2023 has quashed charges of rape levelled against an accused who was booked on the complaint made by the victim, after the accused refused to marry her on being in a relationship with her for over five years. This was in the case of Mallikarjun Desai Goudar v. State of Karnataka & ANR (criminal petition no.4761 of 2022) and this is presided over by a single judge bench of Justice M Nagaprasanna.
FACTS OF THE CASE:
The petitioner is before this Court registered for offences punishable under Sections 376, 376(2)(n), 354, 323, 406, 504, 506 r/w 34 of the IPC pending before the Additional City Civil and Sessions Judge, Bengaluru. The 2nd respondent is the complainant and the petitioner is the accused. The two became acquaintances. The acquaintance turned into relationship and the relationship into sexual relationship. This is said to have gone on for a long period. The allegation is that on the pretext of marriage, the petitioner had sexual intercourse with the 2nd respondent/complainant and has later breached the promise of marriage and, therefore, the contention is that consent of the complainant was obtained by inducement on false promise of marriage.
The learned counsel appearing for the petitioner contended that “it is not one or two, but for five years the petitioner and respondent No.2/complainant were in love, wanted to get married, but in view of caste equations not meeting, the marriage could not take place despite hectic efforts on the part of the petitioner. It is then the complainant turns around and brands the relationship of the petitioner with the 2 nd respondent to be on the false pretext of marriage and alleges that the petitioner had sexual intercourse on several occasions on that pretext and, therefore, it amounts to rape.”
The learned State Public Prosecutor Sri Kiran S. Javali representing the respondent/State would also vehemently oppose the petition to contend that it is a matter of trial for the petitioner to come out clean. The Police have filed a charge sheet for the aforesaid offences and the contents of the charge sheet clearly reveal that sexual intercourse had taken place on account of false promise of marriage.
The bench observed “The narration in the complaint and the statement under Section 164 of the Cr.P.C., if read in juxtaposition, what would unmistakably emerge is, the petitioner and the complainant were in love and have had intercourse on several occasions for years. The statement clearly records that the petitioner had made hectic efforts to get married to the complainant. The family of both the petitioner and the complainant were known to each other. Talks of marriage did take place, but failed.”
Further it said “Though the complaint and the statement narrates that the petitioner has had sexual intercourse with the complainant, initially forcibly, but the said force cannot be seen to continue for five long years. The narration would clearly indicate that the relationship was consensual.”
It added “If it is consensual, it cannot be alleged that it would become an ingredient of rape under Section 375 of the IPC, for it to become punishable under Section 376 of the IPC.”
Accordingly it held “This Court has to step in exercise its jurisdiction under Section 482 of the Cr.P.C., to obliterate the crime registered against the petitioner for the offence of rape under Section 376 of the IPC, failing which, it would become an abuse of the process of law.”
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JUDGEMENT REVIEWED BY PRATIKSHYA P. BEURA