Bangalore District Court
Unknown vs Rahul Maheshwari on 14 February, 2018
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 14th DAY OF FEBRUARY, 2018
- : PRESENT : -
SMT.M.LATHA KUMARI, M.A.,LL.M,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
S.C.NO. 253/2015
COMPLAINANT :
The State of Karnataka by
Hennur Police Station,
Bangalore.
[Represented by learned Public Prosecutor,
Bangalore.]
/ VERSUS /
ACCUSED:
Rahul Maheshwari,
S/o. Ashok Kumar Maheshwari,
Aged about 23 years,
R/at Santhosh Apartment,
Ranganath Avenue,
Sylvan Lodge Colony,
Kilpauk, Near Morcharm Talkies
Chennai, Tamilnadu.
[Reptd by Sri.Rajendra Prasad -Advocate]
***
2 S.C 253/15
JUDGMENT
Hennur Police, Bangalore City have charge sheeted the accused for offences punishable under Sections 376, 354(C) & 293 of IPC and Section 66 & 67 of I.T. Act..
2. The prosecution case in nutshell is that, accused having taken the victim to his flat somewhere during August 2012 situated at Besant Nagar, near ChChettenad Vidhalaya School, Chennai and making her to consume some tablets in the car itself and complainant after consuming the tablets became unconscious. Accused taking advantage of the same committed forcible sexual intercourse with her and also committed forcible sexual intercourse with complainant at K.R. Inn Hotel, K.R.Puram on various dates by threatening the victim and recorded the sexual activity in his mobile i-phone and sent the obscene photos of complainant to CW-4 and also her sister's face book mail ID and thereby alleged to have committed offences referred supra.
3. On the basis of complaint given by complainant dated 9.4.2013, complainant-police have registered this case against 3 S.C 253/15 accused for the offences referred supra and forwarded the F.I.R to the court as per Ex.P8. On 13.4.2013, he arrested the accused. Later, sent the prosecutrix as well as the accused for medical examination to Dr. B.R. Ambedkar Medical College, Bengaluru. On 15.4.2013, I.O proceeded to the spot of occurrence, conducted the spot mahazar as per Ex.P6 and P7 and recorded the statement of prosecution witnesses. During the course of investigation, Investigating Officer collected the medical reports of both accused and the prosecutrix. By completing the investigation, laid charge sheet against accused.
4. On the basis of the materials available on record, charges framed against accused for offences punishable under Section 376, 353(C) & 293 of IPC and Section 66 & 67 of I.T. Act.. In proof thereof prosecution examined 10 witnesses as PW-1 to PW-10 and produced in evidence 15 documents which came to be marked as Ex.P1 to P15 and also MO-1 to 3. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 of Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. 4 S.C 253/15
5. I have carefully scrutinized the oral and documentary evidence produced by the prosecution. The learned counsel for accused asserted that victim was aged about 21 years on the date of alleged incident. Though she asserted that accused made her unconscious in his car and committed forcible sexual intercourse with her and recorded the same in his i-phone as per MO-2 available before this court. Victim and accused are in conscious about the act performed by them and that apart subsequent to alleged incident many times accused and CW-1 met each other at Bengaluru, stayed in hotel at K.R.Puram and had physical relationship with each other. These circumstances establishes that victim consented to have physical relationship with accused and it is a case of consensual sex. Accordingly, neither Section 376 of IPC nor other offences alleged against accused are attracted. There is no material placed by prosecution to establish that accused had sent obscene pictures of complainant to facebook account of either CW-4 or her sister's facebook account. These are all unnecessary story created against accused.
5 S.C 253/15On the other hand, the learned Public Prosecutor, asserted that not only the oral testimony of accused and also her family members establishes that the case of prosecution against accused and there was no reason for complainant to create this story of either Section 376 of IPC or any other offences by putting her honour at stake. Hence, prays for convict the accused.
6. With these submission of the learned counsel for accused and the learned Public Prosecutor, the points that arise for my consideration are as under:
1. Whether the prosecution has proved beyond reasonable doubt that during August 2012 accused taken prosecutrix to his house situated at Besant nagar, near Chittinadu Vidyalaya school and making her to consume sedative tablets in the car itself and after consuming the tablets, prosecutrix became unconscious at that time accused had forcible sexual intercourse with prosecutrix against her will and also committed forcible sexual intercourse with prosecutrix at K.R. Inn hotel on 8.9.2012, 19.9.2012, 2.10.2012, 6.11.2012 and on 13.2012 and thereby committed 6 S.C 253/15 offence punishable under Section 376 of I.P.C?
2. Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place accused by making her to consume sedative tablets and after consuming the tablets, prosecutrix became unconscious at that time accused had forcible sexual intercourse with prosecutrix and recorded the sexual activity in his mobile i-phone and thereby committed offence punishable under Section 353(C ) of I.P.C?
3. Whether the prosecution has proved beyond reasonable doubt that on 23.3.3013, accused sent the obscene photographs of prosecutrix to CW-4 and also her sister's fact book mail ID and thereby committed offence punishable under Section 293 of I.P.C?
4. Whether the prosecution has proved beyond reasonable doubt that accused sent the obscene photographs of prosecutrix to CW-4 and also her sister's fact book mail ID by hacking prosecutrix facebook account and 7 S.C 253/15 thereby committed offence punishable under Section 66 & 67 of IT. Act?
5. What order?
7. My findings on the above points are as under:-
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : In the negative
Point No.4 : In the negative
Point No.5 : As per final orders for the
following
REASONS
8. Point No.1 to 4: These four points are taken together for discussions to avoid repetition of acts as they are interconnected to each other.
9. To prove the guilt against accused, complainant CW-1 was examined as PW-1 before this court. In her chief-examination she has stated that, she went to Chennai along with accused in the year 2012 to attend his birth day party to Chennai at Besant nagar in his car itself and accused picked her from her grandmother's house. Since, she had car sickness, accused gave her tablet inside the car 8 S.C 253/15 and after consuming the same, she became unconscious. After she woke up accused shown her a video where herself and accused engaged in sexual act and later by keeping the said video, accused started blackmailing her and asking her to engage in sexual act with him whenever he wants. According to this version of prosecutrix, the first incident of sexual intercourse between herself and accused taken place on the way to Chennai in the car itself. Whereas, in her cross-examination at page 5, PW-1 deposes that herself and accused were sitting on the rear seat of the car and car driver was driving the car by sitting in the front seat. Hence, the driver was driving the car at that time and further PW-1 deposes that in the year 2012 such an incident taken place on her. Whereas, the complaint came to be lodged only on 9.4.2013 i.e., almost after a lapse of one year. No where in this complaint Ex.P1, the complainant has stated that herself and accused were in love with each other and also her parents were aware of the same and consented to perform their marriage. Further, in her cross- examination PW-1 deposes that she is not in a position to identify the said i-phone, if it is shown to her. She deposes that in the year 2012, July she had been to Chennai to see her grandmother and 9 S.C 253/15 admits that accused picked her at Chennai, near the Park Hotel and also admits that accused and prosecutrix were decided to meet each other even on next day and voluntarily stated that since accused invited her to come to his birth day party she said 'OK'. She further admits that on next day, accused and herself had lunch at KFC at Besant nagar and even on that day, car driver drove the car. Accused purchased blackberry mobile phone from Sangeetha Mobile stores, situated near her grandmother's house and gave the same to prosecutrix and on the next day, she returned to Bengaluru. From this cross-examination, it is crystal clear that even after the alleged incident, victim and accused met each other on the next day and had lunch together at KFC and also accused himself purchased blackberry mobile phone to prosecutrix herein. Prosecutrix also admitted that she was talking to accused in the said phone itself, even after she returned to Bengaluru. If accused had actually committed rape on PW-1 by giving some sedative tablets and recorded the same in his i-phone without her knowledge. It is probabl that victim would not have moved with accused on next day and had lunch together with him and also received gift from him since on 3rd day she returned to Bengaluru all alone and in 10 S.C 253/15 Bengaluru her parents were very much available if such an act was actually taken place there was no reason for prosecutrix to maintain herself silent. Further, in her cross-examination, it is elicited that accused gifted PW-1 with Dalmatian dog which was named as Nicky and the said dog died and later accused purchased another dog by name Chance and gave the same to prosecutrix. She also admits that accused himself paid money for the two dogs and also i-phone. Further, denies that he has done so with love and affection which he was having with PW-1. She further admits that during September 18 to 20th of 2012, accused came to Bengaluru in a car along with his driver and on the first day, she herself went to meet accused where he was staying and on second day, she went and meet accused along with her two brothers and also one sister and on 3rd day also she went alone and meet accused. PW-1 further admits that during 2012, Diwali festival accused visited her house and gifted her 21" LG TV and also one Sony mobile phone to her sister. She further admits that accused came to her house on 23.12.2012 again. On 24.12.2012 accused and herself went to her aunt Sabrina's house and accused left the Chennai on 25.12.2012. Accused was going to Chennai along with her. She also admits 11 S.C 253/15 that accused used to sent online certain food items to her and also he used to recharge her mobile phone PW-1 further admits that March 7th was her father's birth day. Accused attended her father's birth day and gifted him with mobile phone. Again he came to Bengaluru during February 13th and 14th for Valentine's day function and stayed in the house of PW-1 on 14th February. During that time, PW-1 also presented accused with Watch as per MO-1 and also certain letters were given to him as per Ex.D1. Ex.D2 is a box containing 54 playing cards on each cards after painting blue ink some writings are made by the prosecutrix herself and she admits the same. She also admits that Ex.D1 and D2 were given to accused by her on the day of Valentine's day. She also admits from 13.3.2013 she started avoiding accused phone calls and her mother also informed accused not to call PW-1. Further in her further cross-examination PW-1 deposes that her nude photos have sent to facebook of more than 100 persons and deposes that many persons informed her about uploading of said photos in the facebook.
10. Father of complainant was examined as PW-2 before this court. In his cross-examination, he admits that accused stayed in 12 S.C 253/15 his house on 7.3.2013 and also gifted him with mobile phone and deposes that he has not seen the nude photos and only came to know through his wife. According to him, his wife and others have seen the said photos uploaded in the internet. However, according to PW-2, he has not seen the same.
11. PW-3 is the aunt of PW-1 herein. According to her, in the year 2013, she has seen photographs of CW-1 on facebook and called her sister-in-law CW-4 around 6 am and informed about the same. This CW-4 was not at all examined before this court.
12. PW-4 is only a mahazar witness. He has not supported the case of prosecution and turned hostile.
13. PW-5 Dr. B.M. Nagaraju speaks about medical report of victim as per Ex.P4 and also medical report of accused as per Ex.P5.
14. PW-6 Rajesh Reddy is a Manager of K.R. Inn hotel who speaks about mahazar drawn in the hostel.
15. PW-7 is a seizer mahazar witness turned hostile. 13 S.C 253/15
16. PW-8 Concerned Investigating Officer who submitted charge sheet and most of the investigation was done by PW-8 in this case. Though PW-8 has seized mobile phone MO-2 only collected the report from Cyber crime as per Ex.P14 stating that said mobile phone belongs to accused mother and it was used from Chennai, but, the contents of mobile phone were not subjected to the report of cyber crime.
17. PW-10 is another mahazar witness. The only material witnesses in this case, prosecutrix by herself and her father and her aunt. Whereas prosecutrix admits in her cross-examination that she and accused were moving around Bengaluru and Chennai for all along for one year, they exchanged gifts, they used to meet in Hotel and also accused came to the house of prosecutrix met her brothers, sister and also given gifts like mobile phone to the brother of prosecutrix and also her father i.e., PW-2 herein. If accused had actually seduced PW-1 by making her to consume some pills in a car and recorded her nude photos, there was no reason for prosecutrix to entertain him to her house and also allowed him to move around with her and also collected not only gifts like LG TV and mobile phones from him, but also online groceries/food items all along from 14 S.C 253/15 Chennai to Bengaluru. All these circumstances admitted by pw-3 in her cross-examination, makes the case of prosecution vague and baseless. If such an act of forcible sexual intercourse taken place in the car by making PW-1 unconscious in the year 2012, it is probable that victim would not have left any stone unturned in bringing the same to the notice of not only to her family members, but also police. It is further case of complainant-police that accused used to blackmail PW-1 and insisting her to have physical relationship with him by showing the said photos Whereas in the cross-examination of PW-1, she admits that she herself voluntarily went to Hotel at K.R. Puram to meet accused during September 2012 when accused was in Bengaluru for 3 to 4 days. All the four days she has met accused 2 days personally and 3rd day, with her brothers and sister. These circumstances establishes that the sexual acts taken place between accused and victim were all consensual in nature. There is absolutely no material placed by prosecution to prove that accused had forcible sexual intercourse with prosecutrix by making her unconscious. The version of PW-1 and 2 recorded on oath makes the entire case of prosecution vague and baseless. Hence, prosecution miserably failed to prove the guilt against accused 15 S.C 253/15 beyond reasonable doubt. Prosecutrix having moved around with accused all along for 1 years and also co-operated with accused by meeting him when he was alone at K.R. Inn Hotel situated at K.R. Puram and had sexual intercourse with him, now cannot say that accused actually raped her by making her unconscious. Even in MO- 2 there is no such circumstances forthcoming pw-1 failed to identify the mobile phone itself. Accordingly, I hold points No.1 to 4 in the negative.
18. Point No.5: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offence punishable under Sections 376, 353(C) & 293 of IPC and Section 66 & 67 of I.T. Act.
(Dictated to the Stenographer online, corrected, signed and then pronounced by me in open court on this the 14th day of February, 2017.) (M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
16 S.C 253/15 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW1 Prosecutrix PW2 Gracious Lawrence PW3 Sabrina PW4 Jayapal PW5 Dr. B.M. Nagaraju PW6 Rajesh Reddy PW7 Sugandar PW8 Lakshminarayan Prasad PW9 Prasheela B.S PW10 Y.K. Thimmaiah LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Complaint Ex.P 1(a) Signature of PW-2 Ex.P 2 Mahazar Ex.P 2(a) Signature of PW-1 Ex.P 3 Letter Ex.P 3(a) Signature of PW-1 Ex.P 4 Medical report of victim Ex.P 4(a) Signature of PW-5 Ex.P 5 Medical report of accused 17 S.C 253/15 Ex.P 5(a) Signature of PW-5 Ex.P 6 Panchanama Ex.P 6(a) Signature of PW-6 Ex.P 7 Panchanama Ex.P 8 F.I.R Ex.P 8(a) Signature of PW-7 Ex.P 9 K.R.Inn hotel lodge slips Ex.P 9(a) Signature of PW-8 Ex.P 10 K.R. Inn lodge slips Ex.P 10(a) Signature of PW-8 Ex.P 11 K.R. Inn lodge slips Ex.P 11(a) Signature of PW-8 Ex.P 12 K.R. Inn hotel lodge slips Ex.P 12(a) Signature of PW-8 LIST OF MATERIAL OBJECTS MARKED MO-1 Watch MO-2 i-phone MO-3 Charager
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(M.LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
18 S.C 253/1514.2.2018 Judgment pronounced in the open court, operative portion of which reads as under:-
Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for the offence punishable under Sections 376, 353(C) & 293 of IPC and Section 66 & 67 of I.T. Act.
(M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.