1. This appeal is filed by the State challenging the judgment dated 15.12.2004 parsed by the II Add! Sessions Judge. Mysore in Spl. Case No. 154/ 2001 acquitting the respondent of the offence under Sections 366, 376 and 41.7 of IPC and under Section 3(2)(v) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. It is the ottse of the prosecution that on 29.12.2001 at about 12 noon at Kothegala village of H.D.Kote taluk accused kidnapped CW-1 Savitha with the intention that she may be compelled to illicit intercourse and thereby he is alleged to have committed offence punishable under Section 366 of IPC. It is further alleged that on the above said date and subsequently at different dates, at Mysore and other towns he committed rape on CW-1 Savitha and thereby he is alleged to have committed offence punishable under Section 376 IPC. It is further charged against the accused that he has cheated CW 1 Savitha by having forcible sexual intercourse with her by assuring to marry her and thereby he is alleged to have committed offence punishable under Section 417 IPC. It is also charged against the accused that he being not a member of the Scheduled Caste and Scheduled Tribe and knowing that CW-1 Savitha belongs to Scheduled Caste, he has committed the above acts and thereby he is alleged to be guilty of offence under Section 3(2)(v) of the S.C. and S.T. (PGA) Act. After securing the presence of the accused, the prosecution to prove the case, has examined in all 31 witnesses and got marked Exs.Pl to P28 and produced MOs-l to 3. The defence of the abused was one of total denial and he has got marked Exa.Dl to D3 being the portion of statements of PWs-1, 3 and 8, respectively. After hearing the prosecution and the defence, the learned Sessions Judge was pleased to hold that the prosecution has not proved beyond reasonable doubt that the accused has ccmmitted offence alleged against him and has acquitted him of all the charges, being aggrieved by the same, the State has filed this appeal.
3. The prosecution in this case commenced with the complaint originally filed by one Mahadevaiah S/o Kallaiah who is the uncle of the victim Savitha on 2,1.2002. It is alleged in the complaint that the victim was going to the college at Mallamma Marimallappa Women's Arts and Science College, Mysore and was made to stay in Kothegala in the house of her uncle. On 29.12.2001 she has spoken to him. Thereafter, at about 1.30 p.m. on that day, she has gone out and has never returned. Inspite of search in the houses of all the relatives, her whereabouts were not known and hence, it was requested that she may be traced and secured. On the basis of the said complaint, the Saragur police registered a woman missing case in Crime No. 1/02 on 2.1.2002. On 12.1.2002, the victim was secured in the police station and she has given a statement which is registered as Crime No.3/03 in which she has alleged that the accused by name Manjunath was frequently coining to her bouse arid he was expressing his love towards her. She wae trying to - avoid him because she being the member of Scheduled Caste community and idle accused being a Gowda by caste and that in future there would be trouble if they get married, she was avoiding him. Nevertheless, the accused was repeatedly coming to the college. In this connection, there was seme quarrel which has taken place and the mattei was taken to the police station where be has given an undertaking not to trouble her. It is in her statement that after knowing about this incident, she was asked to disconnect the studies and she was kept in Kothegal village. She has further stated that on 29.1,2001, when there was no one in the house, accused came in a Maruti 800 car and by cheating her he took her to the house of one Akkamma in Mysore, who is the aunt of the accused. In the house of the said Akkamraa, the accused attempted to have physical relationship but she has prevented him from doing so. At that time, she has attempted to commit suicide. Thereafter, he has taken her to the house of one Mani in Kuvempunagar and he has kept her for one day and later on took her to the house of Ganesb. in Gonikoppa. In the said house, he lias promised to marry her and has stated that he has made ell arrangements for the marriage and foapt bjar in that house for five days. She has stated that in the said house, he has shared the pleasure with her and thereafter she was taken to Mysore to the office of one Advocate by name Raioakrishns and with his assistance, she was kept in Devanga hostel at Irwin road in Mysore for two days and thereafter she was kept in the house of Dhanalakshmi, COIJStable in Jalapuri quarters. Thereafter, with the assistance of his father by name Raju and his aunt by name Lakshmi, they contacted another Advocate by name Murthy and they planned to restrain her from going anywhere else and for the marriage of accused with her, they put certain conditions. It was also stated to her that if she were to give any complaint, the accused would be arrested and Bent to jail and thereafter it will be difficult for her to marry. It was forced on her that she should come to Saragur police station and give a false statement showing that she voluntarily came out of "tier house and that she has not been abducted by anybody, otherwise she will not be permitted to marry and that her life is also on peril. Such threat was given by one Lakshmi who is the aunt of the accused. Thereafter, they had separated herself from the accused and on 12.1.2002 they have brought her to the Saragur police station on the promise that marriage will be arranged with the accused within 3-4 days and left there itself. On the basis of the said statement given by the victim, the police had registered the case as aforesaid and after investigation, the charge sheet has been filed. PW 1 is the father of the victim. He has stated regarding the missing of his daughter and subsequently accused abducting her, the victim being secured in the police station and thereafter giving of the statement of victim that she has been sexually assaulted and further when they approached accused for marriage of his daughter With accused, the accused has refused to marry her. PW-2 Harish is the brother of the victim. He has also stated the facts of his sister missing from the house for some days and thereafter her coming back FW-3 Chowdaiah has stated that on one day about 2 years back, the accused had taken the victim in a red colour car from the house of the victim, by force. PW 4 Dhana.'akshmi has turned hostile to the case of the prosecution. PW-5 Srinivasamurthy is the cousin brother of complainant. He states that the victim wae studying in Teresian College in Mysore and at that time she was staying in Mysore in his house. He has further stated that the accused was coming and meeting the victim often. It is stated in his evidence that the accused was requesting the victim to love him and in this connection he was harassing her, In this connection, a complaint has been given in Lashkar police station and enquiry was made against the accused and a bond was taken from him. Thereafter, he has stated regarding the abduction of the victim by the accused by bringing a red colour rnaruti car on the date of the incident. He has further stated that the accused had agreed to marry the victim in the police station. PW-6 Swama and FW-7 Ganesh have turned hostile to the case of the prosecution. PW-8 Savitha is the victim in this case where has stated as per her statement before the police dated 12.1.2002. She has categorically stated that accused has committed sexual intercourse with her by promising to many her, in various places in Mysore and in Goriikoppa She has also further stated that the accused has thereafter not married her. It is in her evidence that after she was secured, they had requested the police to secure the accused and get their marriage celebrated, for which the relatives of the accused have not given permission. Hence, she has stated that she has been cheated by the accused. PW-9 Mahadevaiah is the relative of the victim. FW-10 Charani has turned hostile to the case of the prosecution. PW-11 Doddaraju is a signatory to Ex.P8 which is the spot mahazar. PWs-12 and 13 have turned hostile to the case of the prosecution. PW-16 Dr.Pushparani, Medical Officer at Kote Government Hospital has examined the victim and has issued certificate as per Ex. PI 4. She has stated that though there was no evidence of recent intercourse on the person of victim, the victim is used to the act of sexual intercourse. There are possibilities of other injuries sustained by the victim and if the offence is committed within one month from the date of examination, the sits of injuries would be on the person of the victim and that there are no such signs mentioned by her in Ex.P14. Other witnesses in this case are of formal in nature.
4. From the evidence of these witnesses, the learned Sessions Judge has found that the offence of abduction and rape has not been committed and. has acquitted the respondent of the said offence.
5. Heard SrLBhavani Singh, learned State Public Prosecutor for the State and the learned counsel appearing for the accused.
6. Learned State Public Prosecutor submits that the consent mentioned in Section 90 of IPC is a conditional one and therefore, in this case the consent was given by the victim on the promise of the accused marrying her.
7. Section 90 of IPC states as follows:
" va Concent known to be given under fear or misconception. - A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or
8. Learned S.P.P. submits that since the victim had subjected herself to sexual acts with the accused only on the promise of the accused to marry hkn. such consent was given under misconception and therefore, it is no consent at all. Therefore, he submits that the prosecution has proved the case against the accused that the accused had abducted the victim against her will and without her consent and has subjected her to sexual mtetcourse and therefore, is guilty of offence under Section 365 and 376 of IPC. He has also relied on the ruling cited in YEDLA SRINIVASA RAO v. STATE OF AliDHKA PRADESH reported in (2007) 1 SCC (Crl) 557 and 'DEELIP SINGH ALIAS DILIP KUMAR v. STATE OF BIHAR: reported in 2005 SCC (Crl) 253.
9. Sri.A.H.Bhagwan, learned counsel appearing for the accused has submitted that in this case, the very behavior of the victim in going from place to place indicates that she has consented for going from place to place with the accused. The age of the victim as could be seen from the prosecution papers, is more than 20 years and therefore, she was mature enough to decide regarding the act of accompanying with the accused and remaining with him in various places in Mysore end Madikeri. Had victim not willed to accompany the accused, nothing prevented her from escaping from the houses and come back to her parents8 house. She being a college going girl, the conduct of the victim overwhelmingly proves that she had known the consequences of hex acts and that with full knowledge and consent, she has accompanied the accused. Even from the complaint and her evidence before the Court, no intention can be attributed to the accused regarding the cheating aspect of the case. In fact, it is only the relatives of the accused who had prevented the accused from marrying her and there was absolutely no element of cheating in the mind of the accused from the very inception. From the evidence, it is brought out that the accused was preparing to marry her and had taken her to lawyers and requested them to solemnize their marriage as per law. Under the circumstances, no intention can be imposed on the accused regarding the element of cheating. In that view of the matter, he submits that the order of acquittal passed by the learned Sessions Judge does not merit reversal tie has cited the ruling reported in 2003 SCC (Crl) 775 in the case of *UDAY v. STATE OF KARNATAKA'.
10. Having gone through the evidence on record and the submissions made by either side and also having gone through the citations referred by both the sides, we are of the view that on the first place, the victim was a mature girl and was able to decide herself as to what would be the consequences of her acts. Therefore, contrary to what has been stated in the judgments of the Hon'ble Supreme Court where girls of minor age were lured in the act, in this case, the victim being a college going girl above 20 years, the element of consent as defined in Section 90 of the IPC was present when she voluntarily accompanied the accused to various places. So far as the alleged force used by the accused by bringing the raaruti car near her house, there is no proper evidence. In case there was any force used by the accused to abduct her, at* alleged, nothing prevented her from escaping when she was kept in the house of Mani at Mysore or in the house of Gane.sh at Gonikoppa. It was also the case or the prosecution that for about 8 days, she was kept in the house of his aunt and during that period the accused was approaching certain lawyers in Mysore. Even during that period, she could have tan away from the accused, more particularly, when she was brought out in public to meet the advocates. Under the circumstances, we are of the opinion that the acts committed by the accused with the Vitim was done with full consent of the victim and with full knowledge of the consequences of such acts.
11. Therefore, we hold that the judgment of acquittal passed by the learned Sessions Judge holding that there was element of consent in the entire episode as narrated by the prosecution cannot be held to be unreasonable or capricious. In that view of the matter, after having gone through the judgment and reasoning given by the learned Sessions Judge, we do not find ai:y ground to interfere with the order passed by the learned Sessions Judge,
Therefore, this appeal is liable to be dismissed and accordingly, the appeal is dismissed.