ANJINAPPA Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned counsel appearing for the appellant and the learned additional SPP for the respondent. The appellant seeks to challenge the judgment of the trial Court whereby he has been convicted for the offences punishable under Sections 376 and 417 of Indian Penal Code, 1860 (hereinafter referred to as the, "IPC", for brevity) and has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 30,000/- for the offence punishable under Section 376 IPC and to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 10,000/- for the offence punishable under Section 417 IPC. Out of the fine amount, Rs. 35,000/- was ordered to be paid to the victim as compensation under Section 357 of the Code of Criminal Procedure, 1973.

(2.) The facts of the case are as follows:-

(3.) The learned counsel for the appellant while taking this Court through the record would submit that two aspects would arise for consideration namely, the definition of rape under Section 375 IPC and circumstances prescribed therein which would bring the offence within the scope of that definition would require that firstly the sexual act was against the will of the victim and secondly it was without the consent of the victim. In the present case on hand if the facts are taken into account, it cannot be said that the act was committed against the will of the complainant. According to her own statement sexual acts were committed on several occasions. Therefore, even if, for the first time, it was committed against her will, which is again a disputed question of fact, on subsequent occasions when there was no compulsion on her part to participate or to have sex with the appellant she had willingly taken part. Therefore, to hold that it was against her will would not be possible, on the face of it. Secondly, the question as to whether there was consent, the learned counsel would submit that in the case of Uday vs. State of Karnataka, 2003 SCC(Cri) 775, the Apex Court had occasion to review the entire case law on the subject of consent and what amounts to consent in the context of Section 375 IPC and has laid down as follows:-