Karnataka High Court
Kumar Gaurav S @ Vinu vs The State Of Karnataka on 2 July, 2021
Equivalent citations: AIRONLINE 2021 KAR 1355
Author: H.B.Prabhakara Sastry
Bench: H.B. Prabhakara Sastry
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF JULY, 2021
BEFORE
THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY
CRIMINAL REVISION PETITION No.119 OF 2019
BETWEEN:
KUMAR GAURAV S @ VINU
S/O LATE SHIANANDA SWAMY B.
AGED ABOUT 28 YEARS
R/AT NO.737, 46TH CROSS
B BLOCK, JAYANAGAR
OPP. METRO PILLAR NO.18
BENGALURU - 560 082.
:PETITIONER
(BY SRI. ASIM MALIK AND SRI. AIYAPPA, ADVOCATES)
AND:
1. THE STATE OF KARNATAKA
BY SHESHADRIPURAM PS,
BENGALURU REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
AMBEDKAR VEEDHI, BENGALURU - 560 001.
2. Ms. DEEPIKA Y.G.
D/O LATE YOGANANDA
AGED ABOUT 27 YEARS
R/O NO.327, OLD NO.22/1, 7TH MAIN, GAVIPURA
HANUMANTHANAGARA, BENGALURU - 560 019.
:RESPONDENTS
(BY SMT. K.P. YASHODHA, HCGP FOR R1;
R2 - SERVED)
Crl.RP.119/2019
2
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING
TO SET ASIDE THE ORDER DATED 03.11.2018 PASSED IN S.C.
NO.972/2017 BY LEARNED LIII ADDL. CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-54) AND DISCHARGE THE
PETITIONER FROM THE CASE AND PASS ANY ORDER AS THE
COURT DEEMS FIT, IN THE INTEREST OF JUSTICE.
THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD THROUGH PHYSICAL / VIDEO CONFERENCING HEARING
AND RESERVED FOR ORDERS ON 29.06.2021 COMING ON FOR
PRONOUNCEMENT THROUGH PHYSICAL/ VIDEO CONFERENCING
HEARING THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
The petitioner who is accused No.1 in S.C. No.972/2017 pending on the file of learned LIII Addl. City Civil & Sessions Judge At Bengaluru (for brevity, Sessions Judge's Court) for the offences punishable under Sections 120B, 376, 420, 307, 323, 328, 354 read with Section 34 of the Indian Penal Code (for brevity IPC) has filed this petition seeking to set aside the order dated 03.11.2018 passed by the learned Sessions Judge's Court in said S.C. Crl.RP.119/2019 3 No.972/2017 rejecting his application filed under Section 227 of Code of Criminal Procedure (for brevity, Cr.P.C.).
2. Respondent No.1 State is being represented by learned High Court Government Pleader. Respondent No.2 though served has remained absent.
3. Though this matter is listed for admission, however, with the consent of learned counsels from both side, the matter is taken up for its final disposal.
4. Heard arguments from both side.
5. The only point that arises for my consideration is, whether the impugned order suffers from any illegality, perversity warranting interference at the hands of this Court?
6. The present respondent No.2 is the complainant in Crime No.41/2017 on the file of the first respondent - Police Station which was originally registered for the offences punishable under Sections 120B, 376, 420, 307, 323, 328 and 354 read with Section 34 of IPC. After completing the investigation, the police have filed the Crl.RP.119/2019 4 charge-sheet against two accused wherein the present petitioner is accused No.1.
7. The summary of the allegation made in the charge-sheet is that during February, 2017, through accused No.2 by name Smt. Sudha S. W/o G. Girish, the accused No.1 was introduced to the complainant. Accused No.2 informed accused No.1 that the complainant is a divorcee and is earning from her job, as such, if she is trapped, a lot of money can be made easily. Accordingly, they hatched a conspiracy in which accused No.1 making the complainant to believe that he is loving her and would marry her, forcibly made the complainant to believe the same. On 01.03.2017, accused No.2 took the complainant to her house and gave her some juice to drink. The said juice was mixed with some drug after drinking which the complainant became unconscious. At that time, accused No.1 forcibly raped her. After gaining consciousness the complainant came to know this incident and when questioned, accused No.1 promised that he would marry Crl.RP.119/2019 5 her and applied sindhura on her forehead. Thereafter on few dates the accused made the complainant to go to different places including some resorts wherein also he subjected the complainant to forcible rape. He went on postponing the marriage with the complainant and started giving one or other false reasons. In the meantime by securing the nude photos of the complainant, he started blackmailing the complainant and extracted huge money of not less than Rupees Three Lakhs from her at different intervals. He also started subjecting her to physical assault when she used to resist his act of forcible sexual intercourse. In one such incident on 25.04.2017 at about 6.00 p.m. when the complainant had gone near the office of the accused No.1 to enquire him about their marriage, the accused took the complainant to a nearby place and physically assaulted her inflicting injuries upon her and thus has committed the alleged offences.
8. The contention of the petitioner in the petition and the arguments of the learned counsel for the petitioner Crl.RP.119/2019 6 is that the petitioner (accused No.1) had intention to marry the complainant as such, he has even applied sindhura on her forehead, however, since the petitioner later came to know that the complainant had not yet secured dissolution of her earlier marriage, he could not marry her. Thus there is no cheating played by him. Learned counsel further submitted that the complainant had given her consent for having sexual relationship with her, as such, it was with free consent. He also submitted that the complainant had filed similar complaint against five other persons which shows the conduct of the complainant. In his support, he relied upon few Judgments of the Hon'ble Apex Court which would be referred to at the appropriate stage hereafter.
9. Learned High Court Government Pleader in her brief arguments submitted that the complainant in the instant case is none else than the victim. In her very complaint itself she has given a detailed account of how she was forced to succumb to the sexual harassment and Crl.RP.119/2019 7 acts of the accused. The complainant has clearly stated that by administering drug to her she was made to fall unconscious, at that time she was subjected to rape by the present petitioner and he had also taken her nude photographs and started blackmailing her. It is due to the blackmailing she had to subsequently join him at different places and subject herself for his forcible acts of rape though she was not willing for the same. She submitted that the mere non presence of injuries on the body of the victim itself would not take away the case of the prosecution. She also submitted that it is not a stage where a mini trial can be held to decide the alleged innocence of the accused. On the other hand there are sufficient materials to subject the petitioner / accused for trial.
10. The complainant herself is the victim in this case who is shown to have given a detailed written complaint before the police on 26.04.2017. In her complaint she is shown to have stated that it was through accused No.2 who is also a lady she was introduced to Crl.RP.119/2019 8 accused No.1. The complainant appears to have given the details as to how she was made to go to the house of accused No.2 on 01.03.2017 where she is said to have been administered with some drug in a juice and when she was not fully conscious, she is said to have been subjected to rape by accused No.1 with the connivance of accused No.2. The complainant appears to have stated that it was at that time the accused has taken some of her photographs in nude posture and then started harassing her to join accused No.1 on several occasions and to subject herself for his sexual acts. In the complaint she has also stated that she was forced to send her few more nude photographs at the instance of accused No.1. She has further stated that when questioned at the first date of incident itself, the accused had stated that he would marry her and applied sindhura on her forehead, however, later he started postponing the alleged marriage promise and shown that he is not inclined to marry her rather he started extracting money from her on several occasions. Thus at the very first instance the complainant who claims Crl.RP.119/2019 9 herself to be a victim of the alleged incidents has given a detailed account of the alleged incidents. The charge-sheet papers further go to show that the Investigating Officer after investigation has filed charge-sheet against the accused for the alleged offences however, striking Section 307 from the offences which was originally mentioned in the FIR.
11. Learned counsel for the petitioner in his arguments submitting that the present petitioner (accused No.1) had intention to marry the complainant but he could not fulfil his promise since the complainant was said to have not yet obtained dissolution of her earlier marriage, submitted that the said act of the accused would not amount to cheating, on the other hand the consent given by the complainant is not by any misconception of fact, relied upon the following three Judgments of the Hon'ble Apex Court:
In Dr.Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and Others reported in (2019) 18 SCC Crl.RP.119/2019 10 191, the Hon'ble Apex Court with respect to Sections 375, 90 and 420 of IPC in para 23 of its Judgment was pleased to observe as below:
" 23. Thus, there is a clear distinction between rape and consensual sex. The Court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape."
In Pramod Suryabhan Pawar Vs. State of Maharashtra and Another reported in (2019) 9 SCC 608, with respect to Section 375 of IPC, the Hon'ble Apex Court was pleased to observe at para 14 of its Judgment that there is distinction between a false promise given on Crl.RP.119/2019 11 the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled.
In Maheshwar Tigga Vs. State of Jharkhand reported in (2020) 10 SCC 108, the Hon'ble Apex Court was pleased to observe with respect to Section 90 of IPC that consent given under misconception of fact is no consent in the eye of law but misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years as it was in the said case before the Hon'ble Apex Court.
12. In the instant case according to the complainant, the first instance of alleged rape is said to have taken place on 01.03.2017. The complaint was filed on 26.04.2017 i.e. within a period of two months. However, according to the complainant, there were few more acts of alleged rape upon her by the petitioner in the meantime. It is throughout the case of the complainant that for the first incident of alleged rape upon her which Crl.RP.119/2019 12 was on 01.03.2017, there as no consent from her side either direct or indirect or even a forcible consent. According to her, it was seducing her by administering some drug through some juice she was made to fall unconscious and at that time petitioner (accused No.1) subjected her to rape. Therefore, as at this stage and as could be gathered from the charge-sheet materials, the alleged first incident of rape was devoid of any type of consent from the alleged victim towards the act. However, the alleged subsequent incidents of alleged sexual acts which the complainant has called as the incidents of rape at this stage appears to be by the involvement of the complainant also. However, the complainant has stated in her complaint itself that she was forced to join the accused No.1 to different places including some resorts and hotels since the accused was blackmailing her of publishing her nude photographs in social medias including Youtube. According to the complainant those photographs were taken by the accused when she was for the first time subjected to rape by the accused No.1 after making her Crl.RP.119/2019 13 unconscious by administering some drug. She has also stated, even thereafter also the accused by forcing her and blackmailing her had secured her few more photographs and started blackmailing, as such, she had to join the accused and tolerate all his sexual acts said to have been practised against her. In such a circumstance, at this stage and prima facie, only by going through the charge- sheet papers it cannot be concluded that the complainant was a consenting party to the alleged incidents. The same has to be ascertained only after a full fledged trial.
Further the arguments of the learned counsel for the petitioner that the accused No.1 intended to marry the complainant as promised to her but he could not, since the complainant could not secure divorce from her former husband is also not acceptable for the reason that at this stage there are no materials to show that complainant was waiting for an order of dissolution of her alleged previous marriage with other person and till she filing the complaint, there was no such order in her favour. Crl.RP.119/2019 14 Secondly except an alleged act of application of sindhura by accused No.1 on the forehead of the complainant, there are no other materials to come to a finding at this stage that accused No.1 truly intended to marry the complainant but he could not perform his promise due to unavoidable circumstances.
13. Therefore, with great respect to the above Judgments relied upon by the learned counsel for the petitioner it has to be observed that those Judgments since differ from the facts and circumstances of the present case, would not enure to the benefit of the petitioner at this stage. On the other hand suffice it to say that when the alleged victim herself is the complainant in this case and at the very first inception she has given the details of the alleged incident and also that the Investigating Officer is shown to have collected sufficient incriminating materials to subject the accused for trial, I am of the view that there are sufficient materials to proceed further against the accused in the Trial Court that there are no Crl.RP.119/2019 15 grounds to discharge the present petitioner from the alleged crime. Accordingly, I proceed to pass the following:
ORDER The petition stands dismissed as devoid of merit. Registry to transmit copy of this Order to the concerned Sessions Judge's Court, forthwith.
In view of dismissal of the main petition, I.A.1/2019 seeking stay does not survive for consideration.
Sd/-
JUDGE sac*