Bangalore District Court
Bagalagunte Ps vs D.A.Sunil on 3 October, 2024
KABC010087612018
IN THE COURT OF THE LXX ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE,
AT BENGALURU (CCH. No.71)
Dated this the 03rd day of October, 2024.
Present;
Sri. Rajesh Karnam.K, B.Sc., LL.B., LL.M.,
LXIX Addl. City Civil and Sessions Judge and
Special Judge, Bengaluru.
S.C.No.527/2018
COMPLAINANT: The State
Represented by
Bagalagunte Police Station,
Bengaluru.
(By Special Public Prosecutor).
-V/s-
ACCUSED : Sunil.D.A,
S/o Annegowda,
Aged about 26 years,
R/at No.124, Ashraya Layout,
Singapura,
Vidyaranyapura,
Bengaluru.
1. Date of commission of : 04-06-2017 to 04.01.2018
offence
2. Date of report of Offence : 05-01-2018
3. Name of the Complainant : K.Vimala
4. Date of commencement : 23-04-2019
2 S.C.527/2018
of recording of evidence
5. Date of closing of : 22-07-2024
evidence
6. Offences Complained : Under Sections. 376, 354(c),
are 377 of IPC and Section 3(1)
(w), 3(2)(v) of SC/ST(POA) Act.
7. Opinion of the Judge : Accused found guilty for the
offence punishable u/s.354(c)
of IPC and Section 3(1)(w),
3(2)(va) of SC/ST(POA) Act
and acquitted for the offence
punishable under Sections
376 and 377 of IPC.
JUDGMENT
The ACP, Yeshwanthapura Sub-Division, Bengaluru has submitted Charge-sheet against the accused for the offences punishable under Sections 376, 354(c), 377 of IPC and Section 3(1)(w), 3(2)(v) of SC/ST(POA) Act.
2. The brief facts of the prosecution case is that, the complainant has made written complaint on 5.12.2017 which has been taken by the jurisdictional police on 5.1.2018 wherein the complainant has specifically alleged that she is residing with her husband and children in 3 S.C.527/2018 Ramachandrapura of Vidyaranyapura and later shifted to Kammagondanahalli, and presently residing at T Dasarahalli. The complainant has specifically alleged when they were residing in Kammagondanahalli by obtaining a house on rent, the accused was an employee in the adjacent Grocery shop. The accused was belonging to Doddabyagathahalli of Hassan district doing work as a part time worker. The accused was residing with his grand mother. He was belonging to Gowda caste and accused had got acquainted with the victim and her husband. On 4.6.2016 at about 10.30 a.m the accused came to the house of victim in Dasarahalli as the victim was alone, the victim tried to prevent the accused from raping her even then as she was unable to protect herself from the accused, he removed her clothes, against her will forcibly raped her. He then took photograph and even saved videograph of the same. After that accused threatened the victim, if at all she discloses the 4 S.C.527/2018 incident he will use the video for his safety and he will post the same on U-Tube.
3. The victim further complain's the accused threatened the victim always, thereafter accused came to her house and assaulted sexually on her many a time there after. The victim has further complained accused had mentioned till he marries she is his wife and he used to take nude photographs of the victim. If at all she disclose the same, accused threatened will shows the photos to her husband, and the complainant has specifically mentioned in her complaint that accused has mentioned that he not even spared mother, his uncle's daughter of Chikkamangaluru, was administered drugs in soft drinks and he took advantage and raped, The accused told of raping an aunty residing opposite to his house in his village and he will not leave anybody, if he desires and if he identifies any one, as such is a Real Star. And he always used to show pornographic photos, videos, 5 S.C.527/2018 even messages to victim and even different post's of pornography, and as such he destroyed her life.
4. The complainant has complained that accused was talking in good terms with her husband and he has convinced her husband that he will look after their house safely, when they were not in the house, he even got another key, when her children were not present and husband was not there, he even used to bring other ladies to victim's house and used the premises for his illegal activities. The complainant has specifically mentioned even once he brought tali and tied to her and even cut his finger with knife and from that blood, had put the same on her forehead and told he will get divorce of victim from her husband and will marry. Accordingly due to the incident, victim became very much disturbed, she even tried to, decided to commit suicide but as she was suffering from nervous weakness and as such she was depressed due to the misbehaviour of the accused. 6 S.C.527/2018 Accordingly she made report before the jurisdictional police.
5. On the basis of the complaint, the jurisdictional police took up investigation, conducted spot Mahazar, subjected the victim and accused for medical examination, victim has been submitted before the jurisdictional Magistrate for giving her 164 statement, on conclusion of investigation, Investigating Officer has filed charge sheet.
6. After filing of charge sheet this Court took cognizance of the offences and charge sheet copy furnished to the accused as contemplated under Section 207 of Cr.P.C. Heard before the charge. As there was sufficient materials available, charge was framed for the afore said offences, read over and explained to the accused in vernacular language and he pleaded not guilty and claim to be tried. 7 S.C.527/2018
7. To bring home the guilt of accused, the prosecution examined 14 witnesses as PWs.1 to 14 and got exhibited 21 documents as per Ex.P.1 to Ex.P.21 and M.Os.1 and 2, on behalf of defence, got exhibited Exs.D.1 to 8 and matter reserved for recording of statement of the accused as required under Section 313 of Cr.P.C., duly recorded.
8. Heard arguments and perused the documents and other materials available on record.
9. The following points would arise for the determination of this Court are as follows;
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that on 4.6.2016 at 10.30 a.m within the limits of Bagalgunte police station, accused staying in House No.21, Byravi Nilaya, Ist Floor, Near Krishna Bakery, Kalyana Nagar, T.Dasarahalli, went to the house of C.W1 and committed forcible sexual intercourse with her and threatening her that he will put the mobile photos and videos in social media and thereby committed many times 8 S.C.527/2018 sexual intercourse and thereby accused has committed offences punishable u/s 376 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that on aforesaid date, time and place, accused went to the house of C.W.1 and had sexual intercourse with her and took photos and videos and informed her it will be sent in U-
Tube and thereby many times had sexual intercourse with her and thereby outraged her modesty and thereby committed the offence punishable under Section 354(c) of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that on aforesaid date, time and place, accused even after knowing that C.W.1 having Piles problem had forcible sexual intercourse with her and even at the time of mensery period, accused had forcibly committed sexual intercourse with her and thereby committed the offence punishable under Section 377 of IPC?
4. Whether the prosecution proves beyond all reasonable doubt that on the aforesaid date, time and place, the accused not being a member of SC/ST, knowing very well that CW1 belongs to Scheduled Caste forced 9 S.C.527/2018 the C.W.1 to give him happiness as per the video otherwise he will put it in social media and had committed many times sexual intercourse on her and thereby committed offence punishable u/sec 3(1)(w) of SC and ST (Prevention of Atrocities) Act?
5. Whether the prosecution proves beyond all reasonable doubt that the accused is not being the member of SC/ST has committed sexual intercourse with CW1, who belongs to scheduled caste and thereby you have committed offence which is punishable with more than 10 years or imprisonment of life, which is punishable under Section 376 of IPC and thereby you have committed offences punishable under section 3(2)(v) of the SC and ST(Prevention of Atrocities) Act, within cognizance of this court?
6. What order?
10. My findings to the above points are as follows;
Point No.1 : In the Negative
Point No.2 : In the affirmative
Point No.3 : In the Negative
Point No.4 : In the affirmative
Point No.5 : In the affirmative
10 S.C.527/2018
Point No.6 : As per final order,
for the following;
REASONS
11. Point No.2 : The prosecution to prove the ingredients of alleged offence punishable u/s.354 of IPC basically relies on the evidence of complainant P.W.1. The P.W.2 is the husband of the complainant, the PWs.3 to 7 are the persons of Ambedkar Sangha, PWs.8 and 9 are Mahazar witnesses, PWs.10 and 11 are the Medical Officers who conducted medical examination of the victim and the accused. P.W.12 is the Police official who recorded statement of the victim as per the direction of C.W.21 the Investigating Officer as on 5.1.2018 at about 3.45 p.m concerning the Cr.No.9/2018 as per Ex.P.14. The I O who registered crime and I O who investigated are examined.
12. The learned SPP has submitted arguments that the accused has put the victim in fear continuously and committed the offence, as such as per sec.90 of IPC the conduct of the accused 11 S.C.527/2018 amounts to putting the victim under duress to have satisfied his lust. The initial incident is without consent as per the evidence of P.W.1 in her examination in chief in page-3 and 4. In fact there is allegation with regard to the evidence punishable u/s.377 of IPC unnatural at page-5 of the evidence of the complainant. In page-6 the complainant has specifically deposed about the incident. The evidence of the complainant alone is sufficient to consider the accused is guilty. In fact the cross examination of P.W.1 rather supports the prosecution, but the defence is not established. The citation namely Vijay Peinuly V/s. State of Uttarkhand in Crl.A.No.592/2020 dtd:12.8.2021 wherein the observation of Hon'ble Apex Court in the penultimate para the observations definitely come to the aid of the victim, as such accused has committed the alleged offence. In fact as per the decision of Aslam V/s. State of U.P. the Hon'ble Apex Court in his judgment dated:13.2.2013 has specifically observed in para-19 that : 12 S.C.527/2018
"19. In the context of Indian culture, a woman--victim of sexual aggression-- would rather suffer silently than to falsely implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self- respecting woman would put her honour at stake by falsely alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent."
13. The question of false implication of the accused does not arise. Therefore the statement of 13 S.C.527/2018 the victim is to be considered which is a humiliating experience for the victim. As such the accused should not be punished when the evidence of prosecutrix is sufficient to consider the guilt of the accused. Accordingly the observations made therein that any women against her will being at stake will not alleged commission of rape on her. Therefore there is no need for corroborative testimony in such a heinous crime. The evidence of the complainant alone is sufficient in the case on hand, even the P.W.2 husband of the accused has also disclosed before the court that he came to know that accused had assaulted sexually on his wife, she was not in good terms with him, during that period that he enquired about the same, his wife has disclosed that accused is forcing her to leave the company of her husband and she should be with the accused alone. In fact accused had also torn the cloth of the victim and even her photos have been taken by the accused and he has given statement to that effect. In the case on hand, in 14 S.C.527/2018 proof of the alleged offence, the complainant in her examination in chief has specifically deposed in page-2 that while they were residing in Kammagondanahalli rented premises, the accused was working as part time worker in adjacent shop. The accused had came to the birthday party of the child of the victim, after that they became known to each other. The victim deposed she and her husband were having slight difference at that time accused used to act as a well wisher. The witness has deposed when they vacated the premises at Kammagondanahalli and shifted to T.Dasarahalli for the sake of education of their children on 4.6.2016 at about 10.30 to 10.45 a.m while victim was in the rented house at Dasarahalli, she had not used to lock as she is suffering from neurological disease. The accused came directly into the house, he dragged the victim to bedroom. He removed the clothes and when the victim protested accused took nude photos of the victim, he recorded video of the incident in his mobile by placing it at one 15 S.C.527/2018 place, he raped the victim. The victim has specifically deposed till he is going to marry she is his wife and she has to co-operate and he will do whatever she needs otherwise he will share nude photos and video and also show the same to her husband. The husband of the victim will not believe her, which would be disastrous to her life and he gave life threat and accused took nude photographs and video in his mobile. After this victim was very much afraid of accused.
14. The victim further deposed after this on their protest, photo and video accused as mentioned if the same are shown to her husband he will give divorce and by putting under fear, the accused thereafter started abusing the victim sexually, often. The P.W.1 has further deposed accused used to show prone messages and photos of other ladies. The victim has deposed in page-5 that once accused had raped her unnaturally by placing his private part in her rectum. The P.W.1 has deposed 16 S.C.527/2018 about the accused used to assault her sexually thereafter.
15. The P.W.1 deposes on the pretext of photo and video accused even threatened that he will upload them on U-Tube as the victim was married and he even mentioned, she cannot make any complaint since she has no any chastity. In page-6 of her evidence victim has deposed once victim's elder brother's daughter has been similarly photographed by the accused and he even threatened. The victim has specifically deposed once while she was talking with her brother victim has been assaulted by the accused, when she became unconscious, he had assaulted sexually. Further deposed on 23rd March 2017 when she became very much depressed she was admitted to Sapthagiri Institute in Bagalgunte road took treatment for 9 days as inpatient, after this also victim used to be blackmailed by the accused by making whatsapp call and even directed her to answer in a nude manner from bathroom. On 17 S.C.527/2018 14.11.2017 once again accused had assaulted her sexually against her wish. The victim took the same before the Ambedkar Sangha, where accused was also called there he had shown all the video and photograph in his mobile to the members of Ambedkar Sangha and admitted he has assaulted her sexually.
16. The P.W.1 in her further examination in chief on 23.4.2019 has deposed that she gave complaint is admitted and after that police visited the spot and conducted spot Mahazar. This witness deposes she has also handed over the cloth torn by the accused to the police during the course of panchanama as per Ex.P.2. This witness identifies her statement given before the court as per Ex.P.4, identifies her torn cloth as M.O.1 and also Lenovo mobile as per M.O.2. This witness deposes in October 2017 the victim had been videographed by the accused for the last time. The witness has deposed on 23.2.2017 accused had brought ganja he consumed the same and even administered to 18 S.C.527/2018 the victim after she became unconscious he once again assaulted her sexually and then admitted her to hospital. In the cross examination of P.W.1 dated:21.10.2021 this witness deposed by admitting the specific suggestion made that she has given statement before the Magistrate has stated before Ambedkar Sangha and before the Police. This witness admits accused was close since 2014 and he has stood support with their family. This witness admits she had called the accused for the marriage of her brother in the year 2017. This witness admits the photograph shown by the defence as per Exs.D.1 and 2 wherein herself alongwith accused were seen. This witness admits accused alongwith her husband were seen in Ex.D.3. Exs.D.4 and 5 were got marked wherein victim and the accused were seen. The victim has been shown two photos which were stored in a pen- drive as per Ex.D.6 and whatsapp messages shown to the victim are being admitted marked as Ex.D.7. This witness has admitted she had talked with the 19 S.C.527/2018 accused on video. This witness admits she has not reported about the approach made to the Human Rights Commission. This witness deposes she has not given opportunity to report the same before the Magistrate or in the complaint. The witness has admitted she has not reported the documents handed over to Human Rights Commission. This witness deposes she has given complaint before the Ambedkar Sangha which runs 25 pages. This witness deposes to the suggestion that she has committed mistake and she will not henceforth does not commit similar mistake and she will not call the accused and has given written submission there in Ambedkar Sangha is denied that she was forced to sign. This witness admits on 18.11.2017 she had telephonic conversation with the accused and further at about 8.25 a.m she had whatsapp chat with the victim and she had talked upto 11.45 p.m on that day. This witness admits that both have exchanged enquries and well being, for the period 2014 to 2015 and they have enquired about well 20 S.C.527/2018 being of each other. The witness specifically admits in page-20 of her cross examination dtd:2.12.2021 that she was residing from 2013 to 2016 in Kammagondanahalli, from there she started living at Dasarahalli. This witness admits while they were in Kadugondundi their relationship was good. This witness admits accused got marriage proposal and she became angry on the accused. This witness admits after her second son was born in September 2016, she performed birthday on 9th September and neighbours have come to the birthday. This witness deposes on 4.6.2016 when accused came to her house whether she liked it or not she admits she liked it. This witness admits accused had shown video of the sexual act to her. The witness deposes on the same day it has been shown by the accused to her. The witness denies she had liked the video at that time. The P.W.1 further in her cross examination dtd:17.11.2022 deposes her husband is Brahmin, she admits she had sent messages through her mobile to the accused in the year 2017 21 S.C.527/2018 and similarly accused has also sent the messages to her. This witness admits accused from his account had transferred amount to her account is admitted. Similarly witness has admitted that accused has given certain amount to the account of her husband. The witness admits her husband and accused had cordiality. To the specific question whether tried to escape the accused, tried to drag her to bedroom she deposed she tried, but she was unable due to her nervous weakness. This witness admits she has not shouted when accused dragged her to bedroom. The witness volunteers as it will be known to public she remained silent. This witness deposes if she shouts it will lead to a conclusion that she and accused are having relationship. This witness admits in the year 2017 alongwith accused they all have went to Mysuru, the witness admits when her brother's marriage was performed accused was present alongwith their family. P.W.1 admits that her family members and her husband are having good opinion about accused. This 22 S.C.527/2018 witness admits in the year 2016-2017 she has written letters to accused, volunteers whenever accused has asked she has written letter. This witness specifically admits she has given written letter in Ambedkar Sangha, that henceforth they will severe their relationship is admitted. This witness admits she can identify the videos taken by the accused from his mobile. The actual suggestion made and the answers given by the victim are noted as follows:
"ನಾನು ನನ್ನ ಮುಖ್ಯ ವಿಚಾರಣೆಯಲ್ಲಿ ಹೇಳಿದಂತೆ ಆರೋಪಿಯು ತನ್ನ ಮೊಬೈಲ್ ಪೋನ್ ಮೂಲಕ ತೆಗೆದಿದ್ದಾನೆ ಹೇಳುವ ವಿಡಿಯೋಗಳನ್ನು ನೋಡಿದರೆ ಗುರುತಿಸಬಲ್ಲೆ. ಸಾಕ್ಷಿಗೆ ಆರೋಪಿಪರ ವಕೀಲರು ಪೆನ್ ಡ್ರೈವನ್ನು ಲ್ಯಾ ಪ್ ಟ್ಯಾಪಿಗೆ ಜೋಡಿಸಿ ಪೆನ್ ಡ್ರೈವಿನಲ್ಲಿರುವ ವಿಡಿಯೋವನ್ನು ಲ್ಯಾ ಪ್ ಟ್ಯಾಪಿನಲ್ಲಿ ತೋರಿಸಿದಾಗ ಸಾಕ್ಷಿಯು ಸದರಿ ವಿಡಿಯೋವನ್ನು ನೋಡಿ ವಿಡಿಯೋದಲ್ಲಿರುವುದು ನಾನೇ ಎಂದು ಒಪ್ಪು ತ್ತಾರೆ ಮತ್ತು ಸದರಿ ವಿಡಿಯೋದಲ್ಲಿ ಇರುವ ದೃಶ್ಯ ಗಳು ನಾನು ನನ್ನ ಸ್ವ ಇಚ್ಚೆ ಯಿಂದ ಮಾಡಿರುವ ಕ್ರಿಯೆಗಳು ಎಂದರೆ ಸರಿ. ಸದರಿ ವಿಡಿಯೋವನ್ನು 23 S.C.527/2018 ಆರೋಪಿಯೇ ತೆಗೆದಿರುತ್ತಾನೆ ಎಂದು ಸಾಕ್ಷಿ ಒಪ್ಪಿರುತ್ತಾರೆ. ಸಾಕ್ಷಿ ಒಪ್ಪಿರುವ ವಿಡಿಯೋ ಇರುವ ಪೆನ್ಡ್ರೈವನ್ನು ನಿಡಿ 8 ಎಂದು ಗುರುತಿಸಲಾಯಿತು.
ಸಾಕ್ಷಿಗೆ ನಿಡಿ 8 ರ ಪೆನ್ ಡ್ರೆೃವ್ ನಲ್ಲಿರುವ ವಿಡಿಯೋದಲ್ಲಿರುವ ಧ್ವ ನಿಯನ್ನು ಕೇಳಿಸಿ ಸದರಿ ಧ್ವ ನಿ ನಿಮ್ಮ ದೇ ಅಲ್ಲ ವೇ ಎಂದು ಕೇಳಿದಾಗ ಸಾಕ್ಷಿಯು ಧ್ವ ನಿಯನ್ನು ಕೇಳಿಸಿಕೊಂಡು ಅದು ತನ್ನ ದೇ ಧ್ನ ನಿ ಇದೆ ಎಂದು ಒಪ್ಪು ತ್ತಾರೆ. ಸದರಿ ಧ್ವ ನಿಯಲ್ಲಿ ನನ್ನ ಮಕ್ಕ ಳು ಅಮ್ಮ ಎಂದು ಕರೆದಾಗ ನಾನು ಕೆಲಸ ಮಾಡುತ್ತಿದ್ದೇನೆ ಎಂದು ತಮಿಳಿನಲ್ಲಿ ಹೇಳಿದ್ದೇನೆ ಎಂದರೆ ಸರಿ.
ಆರೋಪಿಯು ನನ್ನ ಜೊತೆ ಇರುವಾಗ ನಾನು ಯಾವುದೇ ಬಟ್ಟೆ ಇಲ್ಲ ದೇ ಹೇಗೆ ಹೊರಗೆ ಹೋಗಲಿ ಎಂದು ನುಡಿಯುತ್ತಾರೆ."
17. The victim deposes by admitting in the year 2017 marriage was fixed is admitted after that she became very angry is also admitted. This witness deposes she cannot leave the accused, after that she had given complaint before the Ambedkar Sangha and also before the police is admitted.
24 S.C.527/2018
18. The P.W.2 A.N.Panigopal deposes that his wife belongs to Schedule caste and accused belongs to Gowda community. In the year 2014 they were residing in K.G.Halli. In the milk booth accused was working. As the P.W.2 was going to the shop of the accused, he came to know about him and in the year 2016 they shifted to T.Dasarahalli, there also accused used to visit their house. This witness admits they were of cordial at that time the witness deposes on 6.4.2016 as there was small difference between himself and his wife the victim was not feeling well and she was not willing to speak clearly, as such she enquired then victim had informed about accused, he is raping her and by showing the photographs accused is forcing the victim to be with him. This witness deposes accused had torn the cloth of his wife and she has also informed about the photographs and video being recorded by the accused.
19. In the cross examination of P.W.2 this witness deposes they had gone to Mysuru in the year 2017 he admits Ex.D.3 photographs. This witness admits he has not given statement before the police on 6.4.2016, there 25 S.C.527/2018 was difference between this witness P.W.2 and the victim, has not been stated before the police. This witness admits in the year 2017 certain amount has been transferred by the accused to his account. This witness admits they were all cordial, even with the accused. This witness admits his wife had reported before Ambedkar Sangha came to his knowledge. This witness admits his wife and accused were advised and they have compromised and bond has been got executed is admitted. This witness deposes by pleading ignorance about the accused marriage being fixed, then the wife had objected for the same in Ambedkar Sangha, they were being convinced by the members with regard to the difference between his wife and accused. This witness admits accused raped the victim and harassed her is not mentioned before the Ambedkar Sangha. This witness admits he never saw victim being sexually exploited by the accused and he never came to know personally that victim has been raped by the accused.
26 S.C.527/2018
20. The PW.3 Anu, the P.W.4 Anbu Velu, the P.W.5 Shanthi, the P.W.6 Annapurna and the P.W.7 Mahesh have turned hostile to the prosecution case.
21. The P.W.8 Fayaz who deposed he had signed Ex.P.10 about 5 years back, but for what reason he does not know. This witness admits on the chit of M.O.2 he had put his signature. This witness does not support the prosecution with regard to the seizure of the article under Ex.P.10.
22. The P.W.9 Sunil another signatory Ex.P.10 who has also deposed in presence of Fayaz he had signed at about 3.00 p.m on Ex.P.10 in the year 2018. This witness also deposes he does not know the contents of Ex.P.10.
23. The P.W.10 Dr.Udayashankar.B.S. and the P.W.11 Dr.Nandini are the Medical Officers who conducted physical examination of the accused and the victim, the P.W.12 Mary Shylaja is the Investigating Officer who recorded admission of the victim as per the directions of the Investigating Officer.
27 S.C.527/2018
24. The P.W.13 R.Virupaksha swamy is the Investigating Officer who registered crime as on 5.1.2018 as per Ex.P.1 and the P.W.14 P.Raviprasad is the Investigating Officer who conducted the investigation and filed charge sheet.
25. The learned counsel for the accused has submitted that the alleged offences are punishable u/s.376, 354(c), 377 of IPC and sec.3(1)(w), 3(2)(v) of SC/ST (POA) Act 1989. The date of alleged incident is on 4.6.2016 however, the complainant had reported before the jurisdictional police only after 2 years and FIR is registered only on 5.1.2018. Therefore prima facie case incident happened cannot be taken into consideration. The accused was unmarried as on the date of alleged incident. The victim used to visit the Provision Store where accused was working as part time employee and accused became family friend to the victim. In fact accused was not knowing the caste of the victim. However they both became very close and victim was alone in the house, accused exploited, recorded the 28 S.C.527/2018 incident on phone is the allegation. The accused took nude photos of the victim and blackmailed her and he sexually abused the victim not once but several times and he has threatened that he will upload on web (social media) if victim does not co-operate with him. The allegations have been made in the year 2018 alone before the Ambedkar Sangha wherein on the basis of the reference the jurisdictional police have registered crime on 5.1.2018. In fact the victim has given further statement alongwith C.W.2 statement. The charge sheet has been filed wherein witnesses 22 were cited, however only 14 witnesses have been examined.
26. The learned counsel for the accused submits the P.W.1 has contested the matter wherein the other witnesses namely P.W.2 is only a hearsay witness and PWs.3 to 8 have turned hostile. The PWs.10 and 11 are the Medical Officers who examined the victim and also the accused and issued report to that effect about their potency. In fact the P.W.11 has produced Ex.P.12 medical report which discloses there was no any recent 29 S.C.527/2018 sexual involvement, as alleged by the victim. In the case on hand, the Sec.90 of IPC ingredients are not being made out since there is no any use of force or consent has been obtained by playing fraud. The entire act of having relationship is based on consent only. Under such circumstances corroborative evidence is must to prove the alleged incident. In fact the medical or other witness evidence does not corroborate the prosecution case. There is suppression of material facts by the prosecution, since the date of alleged incident and the date of complaint even for more than one year above time. As such as the victim has given specific admissions in her cross examination, that only when the marriage of the accused was fixed she was perturbed and she does not want to let the accused go and as such she being angry with the accused had attempted to report the same before the Ambedkar Sangha by using her caste. After this, the attempt made by the victim failed to convince the Ambedkar Sangha members, she botched up a story and made false complaint before the jurisdictional police. 30 S.C.527/2018
27. In the case on hand, evidence of the Investigating Officer who has given specific admissions in the cross examination definitely shows none of the offence are being made out. In fact as per Ex.D.3 the victim's husband and accused are seen together. In fact the defence has placed pendrive Ex.D.6 which has been specifically admitted wherein the explicit video of both the victim and the accused were having sexual intercourse is visible. In fact the victim had specifically admitted in her cross examination with regard to the video and she admits Exs.D.1 to 8 which are being marked on consent of the victim itself. Therefore there is no any sexual assault as alleged by the victim however the entire act is a consensual one.
28. In the case on hand, as per the Ex.D.5 even after the alleged incident and Exs.D.1 to 3 being taken after that also victim and accused were having relationship continued. Though victim is having married spouse living. However when the accused marriage was fixed victim was disturbed and she lodged this complaint is 31 S.C.527/2018 specifically admitted in her cross examination. Therefore the cross examination of P.W.1contradicts, deposition in page-3 of her examination in chief, actually contradicts the complainant at one stretch has deposed that accused has recorded her nude photos, but at the same time she further deposes accused without bringing to her knowledge of the victim had placed his mobile in conspicuous place and recorded the incident. In fact in page-25 of cross examination of P.W.1 she has given specific admission with regard to Ex.D.8 and she liked the incident, as such the burden cannot be placed on the accused, so as to convict him for the alleged offence since as per the defence the consent is the main criteria which definitely makes clear that accused is not at all guilty of the alleged offence. Accordingly, seeks to acquit the accused.
29. The learned counsel for the accused placed reliance on the citation (2020)10 SCC 108 in case of Maheshwar Tigga V/s. State of Jarkhand wherein it is held that:
"18. We have given our thoughtful consideration to the facts and circumstances 32 S.C.527/2018 of the present case and are of the considered opinion that the appellant did not make any false promise or intentional misrepresentation of marriage leading to establishment of physical relationship between the parties. The prosecutrix was herself aware of the obstacles in their relationship because of different religious beliefs. An engagement ceremony was also held in the solemn belief that the societal obstacles would be overcome, but unfortunately differences also arose whether the marriage was to solemnised in the Church or in a Temple and ultimately failed. It is not possible to hold on the evidence available that the appellant right from the inception did not intend to marry the prosecutrix ever and had fraudulently misrepresented only in order to establish physical relation with her. The prosecutrix in her letters acknowledged that the appellant's family was always very nice to her.
19. The appellant has been acquitted of the charge under Sections 420 and 504 I.P.C. No appeal has been preferred against the acquittal. There is no medical evidence on record to sustain the conviction under Section 323 I.P.C. No offence is made out against the appellant under Section 341 I.P.C. considering the statement of prosecutrix that she had gone to live with the appellant for 15 days of her own volition.
20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deepseated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love.33 S.C.527/2018
The observations in this regard in Uday (supra) are considered relevant:
"25...It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent."
30. Therefore this observations made by the Hon'ble Apex Court definitely comes to the aid of the present accused, as such the ingredients of alleged offence not made out. In this case as there is no any promise to 34 S.C.527/2018 marry or fraud being played by the accused, accused is innocent of alleged offence.
31. Further as per the citation (2019)18 SCC 191 in case of Dr.Dhruvaram Muralidhar Sonar V/s. State of Maharashtra and others, the Hon'ble Supreme Court of India has made certain observations under what circumstances the conscious decision of victim to be involved in sexual relationship with accused without pressure or misconception on part of accused and relationship not involving passive submission of victim but active participation definitely goes against the victim's allegation. Therefore as observed in para-15 to 25 of the decision, definitely goes to the aid of the accused. As such there is no any alleged offence being committed by the accused. Para-21 read thus:
"21. In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, the Court has drawn a distinction between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused.
The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and 35 S.C.527/2018 of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been pre-
decided by them. She also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that the physical relationship between the parties had clearly developed with the con- sent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be leveled against the accused."
36 S.C.527/2018
32. Further as per the observations of our Hon'ble High Court of Karnataka in Criminal Petn.No.4761/2022 dtd:28.2.2023 in case of Mallikarjun Desai Goudar V/s. State of Karnataka it has been observed . :Para-12 and 13 reads thus:
"12. Insofar as the judgments relied on by the learned counsel for the 2nd respondent seeking to distinguish the afore-quoted judgments are concerned, they would all tumble down, as they are heavily goaded against the submissions made by the learned counsel for the 2nd respondent. Insofar as the judgments in the cases of YEDLA SRINIVASA RAO v. STATE OF A.P.5; STATE OF UTTAR PRADESH v. NAUSHAD6 and ANURAG SONI v. STATE OF CHHATTISGARH7 are concerned they were all rendered on the facts obtaining in the cases therein and a distinction being made that it was a false promise of marriage and not mere promise of marriage or its breach.
Therefore, those judgments are distinguishable without much ado, on the facts obtaining in the cases therein and would not become applicable to the facts obtaining in the case at hand. In the considered view of this Court, the issue stands covered, on all its fours, to the judgments of the Apex Court and the High Court of Kerala, as quoted hereinabove, and not as noted hereinabove, as relied on by the learned counsel for the 2nd respondent. This Court though, would appreciate the sincere effort of the 37 S.C.527/2018 learned counsel for the 2nd respondent to distinguish every judgment by putting up vehement opposition, but in the light of facts being so glaring and the law in favour of the petitioner, permitting further proceedings or continuance of trial would undoubtedly lead to miscarriage of justice qua the offence punishable under Section 376 of the IPC.
13. There are other offences alleged against the petitioner. They are offences punishable under Sections 354, 323, 406, 504, 506 of the IPC. Section 354 would get subsumed to the reasons rendered for obliterating the offence under Section 376 of the IPC. Therefore, invocation of Section 354 also requires to be obliterated. Section 406 which deals with criminal breach of trust has its ingredients in Section 405. The ingredients of Section 405 mandate that there should be a property entrusted from the hands of the victim to the accused and the accused should have used the said property with dishonest intention towards his or her own purpose. There is neither an allegation of the kind nor any ingredient for the said offence. Financial transactions have taken place between the two but that by itself would not become an ingredient of criminal breach of trust. Therefore, the said offence also is to be obliterated. What remains is offences punishable under Sections 323, 504 and 506 of the IPC. The complaint, statement under Section 164 CrPC and summary of the charge sheet clearly indicate the offences punishable under Sections 323, and 506 of the IPC. Therefore, these offences are required to be sustained and 38 S.C.527/2018 offence under Section 504 of the IPC as well requires to be quashed."
Under such circumstances the accused is to be acquitted is the prayer.
33. POINT NO.2: In the case on hand, to consider the ingredients of offence punishable u/s.354(c) of IPC, the provision is as follows:
"Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.
Explanations:
For the purpose of this section, "private act" includes an act of watching carried out in a place which, in the circumstances, would reasonably be 39 S.C.527/2018 expected to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public.
Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section.
34. The ingredients of offence that the accused are the perpetrator should be having the image captured of woman engaging in a private act or he has watching the same and usually have the expectation is that such incident should not have been recorded at any circumstances as it is a reasonable expectation. Therefore the Ex.D.8 placed on record discloses explicit video and photographs of the victim which were being recorded by the accused and he is having possession of the same and it has been placed on record not by the prosecution but the accused only. Therefore to take such photograph or explicit video being recorded by the accused as per the admission of the accused himself 40 S.C.527/2018 there is no any need of corroboration since the admitted facts need not be proved. Under such circumstances the act of the accused specifically having nude photographs of the victim and the victim being in the compromising position with the accused definitely proves certain allegations made by the complainant in her complaint and also in her evidence. In fact the accused is in the habit of defending himself, placed Ex.D.8 the complainant has specifically given the complaint with regard to commission of offence in page-3 of her evidence. The victim has specifically mentioned on 4.6.2016 at about 10.00 to 10.45 a.m while her house was not locked, accused directly came into their house and he dragged her to bed room and he removed her clothes and recorded into photograph in his Lenovo mobile. Recording of the photographs by the accused is an undisputed fact since these nude photos and documents have been placed on record during the course of cross examination of P.W.1 at page-20, seek answer which even the victim also admits being the photographs and video of herself. In fact the PW.2 who 41 S.C.527/2018 has specifically deposed in his examination in chief that on 6.4.2016 he came to know from his wife that she has been forced to have photographs being taken by the accused who had shown the same to her and he did not allowed to avoid him in the sexual act. This piece of evidence of PWs.1 and 2 finds corroboration that the same being produced by the accused which is an undisputed fact. In fact the learned counsel for the accused has specifically put question to PW.14 Investigating Officer in the cross examination whether he had come across any video or photographs being placed on record as specified in Ex.P.15 the Investigating Officer has deposed he has not come across such photographs. However Ex.D.8 specifically placed on record, corroborates the prosecution with regard to the ingredients of the alleged offence punishable u/s.354(c) of IPC. Therefore, this court has no any doubt with regard to the ingredients of offence punishable u/s.354(c) of IPC being established as per the allegations of complainant. Under such circumstances the Point No.2 for consideration is answered in the Affirmative. 42 S.C.527/2018
35. POINT NO.1: In the case on hand, to prove the ingredients of commission of offence punishable u/s.376 of IPC the complainant has specifically deposed in her evidence that accused has forced her to have sexual intercourse as deposed in page-3 of her examination in chief. Further in page-4 she has specifically stated till the accused marries she will be his wife. Unless she does not co-operate, he will put the video and photograph on social media and also send the same to her husband who will not believe victim, rather he(victim's husband) is pleased to believe accused instead of victim and also accused gave life threat to her. The complainant has narrated many facts with regard to the accused forcing her to have the relationship continued for a prolonged period from 2016 to 2017. The victim has specifically mentioned in page-9 of her examination in chief on 14.11.2017 she while having went to Military canteen to purchase certain articles, after returning accused came there, he torn her clothes, even if she protested he did not let her go, but he torn the clothes and forced her to 43 S.C.527/2018 have sexual intercourse and even threatened her that he will upload her video to all the persons. As such the victim went to the Ambedkar Sangha and reported the same as on 23.11.2017 to 26.11.2017 who have guided her to lodge complaint before the jurisdictional police. In the cross examination with regard to the accused having made medical attention to the victim has been specifically admitted by the victim. Further the defence admits namely Ex.D.1 to 8 are being admitted. In fact in page-17 of cross examination of the victim even the mobile number from which the vitim had shared her whatsapp messages which has been got printed and placed on record as per Ex.D.7 has been specifically admitted by the victim. The vicitm has specifically given admissions in page-8 of her cross examination that she has been advised and informed to give complaint by the Human Rights Commission and also DCP as such she complained but she has not specified these facts before Magistrate while giving 164 statement. In this case, the P.W.2 deposes about knowing the accused however this witness in his examination in chief has deposed about 44 S.C.527/2018 accused visiting their house and they are having good relationship. This witness has specifically deposed on 6.4.2016 the mood of his wife was not proper, she was not in talking terms, after few days he questioned, then she disclosed that accused had sexually assaulted her. The victim had expressed that accused is having photographs and by showing the same he has forced her to be with him and accused has instructed to leave the company of her husband, this witness. The witness deposes accused has torn the cloth of his wife and he came to know accused has taken photos and videos of his wife. This witness deposes he had given complaint to that effect. In the cross examination this witness admits about visiting Mysuru in the year 2017 for picnic. This witness admits he has not stated about the mental status of the victim on 6.4.2016 before the police while he gave statement. This witness admits in the year 2017 some amount has been transferred to him in the year 2017 and they were all cordial in the year 2017 is admitted. This witness admits his wife had gone to Ambedkar Sangha and admits their compromise has 45 S.C.527/2018 been arrived and they did executed bond there. This witness pleads ignorance about accused marriage being fixed when his wife had gone to Ambedkar Sangha. This witness specifically denies there was relationship between his wife and accused when they went to Ambedkar Sangha. This witness specifically admits the accused did raped the victim. This witness admits he was not aware about accused committing rape on the victim and the same being specified by the victim in Ambedkar Sangha. This witness admits he was not aware about the fact that accused has committed rape on his wife. The P.W.3 Anu, P.W.4 Anbu velu, P.W.5 Shanthi all these persons are members of DSS. These witnesses have turned hostile with regard to the alleged offence being committed by the accused on the victim. The P.W.3 deposes in examination in chief that complainant had came to the Sangha to get some relief towards the illicit relationship alongwith accused. The PWs.4 and 5 deposed that the victim had come to their Ambedkar Sangha, she has specified that she is having friendship with accused and both are living together and 46 S.C.527/2018 she does not want to continue the same, but she needs compensation for that.
36. The P.W.6 Shanthi deposes about 8 years back complainant was a tenant under her, but this witness does not deposes about seeing the accused at any point of time.
37. The P.W.7 Mahesh deposes about the victim being tenant, by the side of his shop and this witness also turns hostile and deposes he never saw the accused.
38. The P.W.8 Fayaz is one panch witness who deposes accused is his friend, as instructed by police he signed Ex.P.10. This witness deposes he does not know the contents of Ex.P.10 and M.O.2 whether seized in his presence.
39. The P.W.9 Sunil has deposed that Fayaz is his friend, he has signedin the year 2018 to Ex.P.10. This witness deposes police have not shown mobile phone. 47 S.C.527/2018 This witness admits his signature on chit sticked on the mobile phone which is marked as M.O.2(b).
40. These two witnesses PWs.8 and 9 are being subjected to cross examination. They admit they does not know the contents of the Mahazar Ex.P.10 and they have signed as per the directions of the police Officers.
41. The PWs.10 and 11 are the Medical Officers who have deposed about examining the victim and the accused as per Ex.P.11 and 12 which are not disputed by the defence.
42. The P.W.12 Mary Shylaja is the Police Officer who recorded the statement of the victim on 5.1.2018 at about 3.45 pm as per the direction of Investigating Officer as per Ex.P.14.
43. The P.W.13 R.Virupaksha Swamy is the Investigating Officer who took the complaint of the complainant and registered the crime No.9/2018. This 48 S.C.527/2018 witness in cross examination has specifically admits there is one month difference in the date of report and date of registering the crime. However he has not at all noted the delay, his reply is it is the discretion of the Investigating Officer who took up investigation later.
44. The P.W.14 P.Raviprasad is the Investigating Officer who has took up investigation and filed charge sheet. This witness deposes about examining the witnesses and he had seized the articles got prepared spot sketch recorded statement of material witnesses CWs.3 and 4. This witness denies suggestion made by the learned counsel for the accused. This witness deposes he had recorded accused voluntary statement and seized the Lenovo mobile in presence of panchas under Ex.P.10. This witness deposes he has seized the M.O.2 and on medical examination of the accused and obtaining caste report, sent the victim to give statement before the jurisdictional Magistrate for recording 164 statement. This witness deposes on conclusion, he has filed filed charge sheet against the accused. 49 S.C.527/2018
45. In the case on hand, the learned counsel for the accused submits the prosecution has not conducted proper trial. In fact the alleged incident as per Ex.P.1 is of 4.6.2016 at 10.30 a.m. however the complainant had made complaint after 1 ½ years on 5.12.2017 but the same complaint has been taken up registered as crime on 5.1.2018. Therefore the investigation conducted by the Investigating Officer itself is not proper. The 164 statement given by the victim before the jurisdictional magistrate is nothing but reiteration of the complaint. In the 164 statement itself the complainant has specifically mentioned while she met accused in Kammagondanahalli for about 4 years there accused was having co-relationship with their family members, however she has mentioned about the incident on 4.6.2016. The victim has mentioned accused took her to their bed room and he took nude photograph of her and he threatened if she does not co-operate he will upload the same in U-Tube and also to the mobile of her husband and he had committed rape. Further she had 50 S.C.527/2018 stated before the jurisdictional Magistrate that she being helpless accused used to come to the house whenever her husband was not present and he used to place the mobile on the sajja and recorded video and used to assault her sexually. Once again used to threaten he will upload the video to all others. She has narrated the incident that even during the video calls accused used to direct her to send her nude photos through whatsapp. She has specifically mentioned about assault made by the accused often and even during the periods and so on and even accused used to drag to home she can contact as per his directions only it is to be carried and even he insisted not to have relationship with any other person and accused used to upload videos of sexual intercourse and used to make her brother's daughter, if she does not co-operate he will send the same to others is the narration. The complainant has specified accused has also played fraud on many other girls.
51 S.C.527/2018
46. The learned counsel for the accused argues in the complaint, complainant has made allegation that accused did assaulted on her as on 4.6.2016 as per Ex.P.1 and in the complaint it is mentioned many times accused has misused photograph and nude videos and assaulted on her sexually. However in the 164 statement she has improved the same and it is mentioned about misuse made by accused during these period. However in the statement given before the Magistrate she has mentioned on 4.6.2016 accused had came about 11.00 a.m and accused has threatened her that he will share video with her husband if she does not co-operate. However in the examination in chief of P.W.1, she has made certain improvements which are specifically put to Investigating Officer P.W.14 who has specifically admitted such statement has not been given by the complainant before him.
47. There are lot of improvements made by the complainant during her examination in chief which are not at all stated in the complaint or in the 164 52 S.C.527/2018 statement. Therefore the complainant is an unreliable person with regard to the improvements made. As such as per the citations relied in the case on hand admittedly there is no question of promise to marry or any of the ingredients of sec.90 of IPC can be borne so as to incriminate the accused in the offence punishable u/s.375 r/w.90 of IPC. In fact the observations made by the Hon'ble High Court of Karnataka in Crl.Petn.No.4761/2022 definitely comes to the aid of the accused before the court. As such the allegations made with the sec.354 of IPC would get subsumed to the reasons rendered for obliterating the offence u/s.376 of IPC. Therefore invocation of sec.354 also requires to be obliterated as observed in page-39 para-13 of the above Criminal Petition should be considered and accused is to be acquitted. Moreover further admissions of P.W.2 in his cross examination he has stated in his examination in chief that as on 6.4.2016 he and his wife had difference. After few days when the P.W.2 has forced her to give the reason why she is behaving strangely she has mentioned that accused has sexually assaulted and 53 S.C.527/2018 accused by showing her photos has directed to leave the P.W.2 and victim should be with accused alone. However as per the Ex.D.7 which is admitted by P.W.1, in the cross examination the conversations between them has been placed on record. This whatsapp messages discloses the attitude of the victim towards accused. The victim has given threat to the accused and not vice- versa. Moreover the observations made in the citation definitely is to be considered for the defence and accused is to be acquitted.
48. The learned SPP argues as per the citations namely Crl.A.No.2109/2008 in case of Aslam V/s. State of Uttar Pradesh the observations made in as above are to be considered along with the recent citation of Hon'ble Apex Court in Crl.A.No.592/2020 in case of Vijay Peinuly V/s. State of Uttarkhand dated:12.8.2021, the inference can be drawn from the conduct of the accused that he has induced the victim by referring her nude photos as such the presumption is to be drawn and the offence punishable u/s.376 of IPC is to be considered is the 54 S.C.527/2018 prayer. On going through the material on record, the admission of the victim during her course of cross examination in page-25, victim has mentioned that she has agreed to leave the matter there itself and she has given undertaking before the Ambedkar Sangha. Further the victim has admitted she is in the video and she has specifically admitted before the court that she voluntarily participated in the act and she further admitted accused had taken video. Therefore the citations relied by the learned SPP and inference is to be drawn that accused has induced or forced the victim to sent her sexual act is not visible in the Ex.D.8 seems reasonable. Under these circumstances, the benefit of doubt as observed in the citations relied for the defence are to be considered seems reasonable prayer. Under these circumstances, the ingredients of offence punishable u/s.376 of IPC as per the admission of the P.W.1 which are brought to the notice of the court definitely goes against the prosecution seems reasonable prayer. In the case on hand, the learned counsel for the accused argues as per the statement of 55 S.C.527/2018 PWs. 5 and 6 they have specifically mentioned in the examination in chief that victim went to Ambedkar Sangha to have relief with regard to their friendship and they were live in together. Therefore when the complainant is having spouse living, she cannot live in together with any other person. These mention made by the third person clearly shows that complainant was not in good terms as admitted by herself that when marriage of the accused was fixed, she was disturbed and she had made this complaint seems reasonable prayer. Accordingly, this court is satisfied to answer Point for consideration that accused has not committed offence punishable u/s.376 of IPC and this Point No.1 is answered in the Negative.
49. POINT NO.3: In the case on hand, my Predecessor in Office has framed offence punishable u/s.377 of IPC with regard to the proof. The learned SPP brings to the court notice the complaint made by the complainant has not specified having commission of offence with regard to unnatural sexual act being done by the 56 S.C.527/2018 accused against the victim. The 164 statement before the jurisdictional Magistrate on 17.1.2018 the victim has mentioned in page-3 that when the victim was suffering from piles accused once had sexual intercourse with the victim by penetrating the rectum of the victim. However in the evidence of the complainant P.W.1 she has specifically mentioned about the same in page-5 of her examination in chief. Further she has specifically in detail mentioned about unnatural offence committed by the accused.
50. The learned counsel for the accused submits in fact in the complaint there is no mention about unnatural offence being committed by the accused. However victim has specifically stated before the Magistrate as on 17.1.2018, about the commission of unnatural offence. Further in her examination in chief she has elaborated that accused had committed unnatural offence. In her cross examination the admissions given by the PW.1 with regard to the allegations made u/s.376 of IPC being diluted and as she does not specified the date on which 57 S.C.527/2018 the accused committed such unnatural offence. Under such circumstances, in the absence of any specific date or on which year such an offence have been committed to consider such an offence made by the accused independently from that of the entire allegations made in the prosecution case and the evidence and even the whatsapp messages shared by the accused and the victim as per Ex.D.7 such an offence being committing is not forthcoming from the entire materials and as per the observations made in the above Crl.Petn.No.4761/2022 such an inference cannot be drawn of committing unnatural offence seems reasonable. Under such circumstances even to infer such an offence being committed by the accused on the victim, there is no further statement either given by the accused to the victim to that effect. Accordingly this court is satisfied to answer the Point of ingredients of offence punishable u/s.377 of IPC cannot considered being committed by the accused against the victim as per the prosecution case. The material placed as such are not to the point. Moreover, from the complaint, the victim has made 58 S.C.527/2018 certain improvements in her 164 statement and also in her examination in chief much more improvements have been made is established by the defence during the course of cross examination of the Investigating Officer seems reasonable. Under these circumstances this court is satisfied to answer this Point No.3 in the Negative.
51. POINT NO.4: In the case on hand, to prove the ingredients of offence punishable u/s.3(1)(w) of SC/ST (POA) Act 1989, however under which offence punishable u/s.3(1)(w)(i) or (ii) of SC/ST (POA) Act 1989 has not been specified. However in the provisions of the Act, the uses words, acts or gestures of a sexual nature towards a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe is enough to consider such an offence being committed by the accused. In the case on hand, the accused has specifically stated in the 313 statement he does not know the caste of the victim. However the learned SPP argues the accused is knowing the victim for a period of 59 S.C.527/2018 more than 4 years since from 2014 till the date of making complaint, the accused had even gone for the marriage of the brother of the victim. Therefore he does not know the caste of the victim cannot be considered seems reasonable. Therefore the proviso and the explanation to sec.3(1)(w) has not been proved by the defence that accused is not aware of the caste of the victim cannot be inferred as argued by the learned SPP seems reasonable.
52. In the case on hand, even as per the evidence of the material witness P.W.4, he has specifically deposed before this court that victim had questioned about keeping the promise between the victim and the accused and this witness has specifically mentioned no any mention has been made by the victim that she has been deceived by the accused. The P.W.5 has also similarly deposed that they have called the accused also to give compensation to the victim as he is moving away from living together, they have informed the victim to approach the police for suitable relief. In the case on 60 S.C.527/2018 hand, by considering the factum of Ex.D.6 which establishes there is a relationship between the victim and the accused. It is not a matter of fact that accused was not knowing the caste of the victim as on the date of 4.6.2016, however the allegations have been made by the complainant that even after that for several time, the accused had exploited her condition and he had made explicit things and even shown videos and connection between them with regard to which are all sexual in nature. In fact even the admitted fact Ex.D.7 discloses conversation between them is not planned one between third persons. The entire conversation discloses that the comments are not of natural one but having over tunes of sexual in nature. Under such circumstances this court is satisfied to consider the ingredients of offence punishable u/s.3(1)(w) of SC/ST (POA) Act 1989 being established. Accordingly, this court is of firm view that the materials placed on record are sufficient to consider the ingredients of offence punishable u/s.3(1)(w) of SC/ST (POA) Act 1989 61 S.C.527/2018 committed by the accused. Accordingly, I answer this Point No.4 in the Affirmative.
53. POINT NO.5: In the case on hand, on considering the entire materials on record, when the accused has committed a schedule offence as per the schedule-A of Annexure-I the sec.3(2)(va) of SC/ST (POA) Act 1989 gets attracted. However this court has charged the accused for the offence punishable u/s.3(2)(v) only. However considering the schedule offence being committed by the accused punishable u/s.354(c) of IPC the accused is liable to answer punishment provided u/s.3(2)(va) of SC/ST (POA) Act 1989 is my firm view. The punishments provided for the offence punishable u/s.3(2)(va) of SC/ST (POA) Act 1989 is as follows:
"Section 3(2)(va) in The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989:
"(va)commits any offence specified in the Schedule, against a person or property, knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with such punishment as specified under the Indian Penal Code (45 of 1860) for such offences and shall also be liable to fine".62 S.C.527/2018
54. Therefore this court has to award the punishment equivalent to that offence committed by the accused under the provisions of IPC. Accordingly, this court is satisfied that accused has committed the alleged offence punishable u/s.3(2)(va) of SC/ST (POA) Act 1989 though he has been charged for the offence punishable u/s.3(2)
(v) alone.
55. In the case on hand, on going through the entire materials on record, this court on going through the citation of Hon'ble Supreme Court of India K.S.Puttaraju V/s. Union of India and others (2017)10 SCC 1 in para-52 the Hon'ble Apex Court considered its own decision of Suchitra Srivastsvar and another V/s. Chandighar Administrator that the victim has tried to decided with regard to having child or not. As such in the citation (2017)10 SCC 1 in case of K.S.Puttaraju V/s. Union of India wherein it is held about the right to privacy is a fundamental right. The observation are "4. We have carefully perused the impugned judgment dated:8th October, 2023, passed by the Division Bench of the High Court. The issue before the High court was about the legality and validity of the 63 S.C.527/2018 judgment and order dated:19th/20th September, 2022, by which the appellant before it was convicted for the offences punishable u/s.363 and 366 of the Penal code, 1860 as well as Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act).
5. As per the order of the Hon'ble the Chief Justice of India, suo motu writ petition under Article 32 of the Constitution of India has been initiated mainly due to sweeping observations/findings recorded by the Division Bench of the High court of Calcutta in the impugned judgment. Only by way of an illustration, we are reproducing the observations made in paragraph 30.3 as under:
"30.3.It is the duty/obligation of every female adolescent to:
(i) protect her right to integrity of her body;
(ii) protect her dignity and self-worth
(iii) Thrive for overall development of her self transcending gender barriers.
(iv) Control sexual urge/urges as in the eyes of the society she is the looser when she gives into enjoy the sexual pleasure of hardly two minutes of freedom: the freedom to be let alone and the freedom for self-development. The nine primary types of privacy are, according to the above depiction:
(I) bodily privacy which reflects the privacy of the physical body. Implicit in this is the negative freedom of being able to prevent others from violating one's body or from restraining the freedom of bodily movement;
(ii)spatial privacy which is reflected in the privacy of a private space through which access of others can be restricted to the space; intimate relations and family life are an apt illustration of spatial privacy;64 S.C.527/2018
(iii) communicational privacy which is reflected in enabling an individual to restrict access to communications or control the use of information which is communicated to third parties;
(iv) proprietary privacy which is reflected by the interest of a person in utilising property as a means to shield facts, things or information from others;
(v) intellectual privacy which is reflected asn individual interest in the privacy of thought and mind and the development of opinions and beliefs;
(vi) decisional privacy reflected by an ability to make intimate decisions primarily consisting one's sexual or procreative nature and decisions in respect of intimate relations;
(vii) associational privacy which is reflected in the ability of the individual to choose who she wishes to interact with;
(viii) behavioural privacy which recognizes the privacy interests of a person even while conducting publicly visible activities. Behavioural privacy postulates that even when access is granted to others, the individual is entitled to control the extent of access and preserve to herself a measure of freedom from unwanted intrusion; and
(ix) informational privacy which reflects an interest in preventing information about the self from being disseminated and controlling the extent of access to information.(paras 249 and 250) Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing 65 S.C.527/2018 a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.(para 323) The court herein has not embarked upon an exhaustive enumeration or a catalogue of entitlements or interests comprised in the right to privacy.(para 324) The sphere of privacy stretches at one end to those intimate matters to which a reasonable expectation of privacy may attach. It expresses a right to be left alone. A broader connotation which has emerged in a academic literature of a comparatively recent origin is."
56. Further in recent decision of Hon'ble Apex Court 2024 SCC SC 2005 while considering the Crl.A.1451/2024 the right to privacy of Adolescents V/s. State of W.B date of disposal 20.8.2024 the Hon'ble Apex Court has considered the victim has right over her body to decide with regard to what she is entitled to do. Therefore no any person can force her to have sexual intercourse against her wish. Under such circumstances the explicit video being recorded by the accused is a 66 S.C.527/2018 punishable offence. Under such circumstances this court finds substantial material even the defence taken by the accused clearly discloses that accused has definitely violated the privacy of the victim is established. Under such circumstances this court answer the Point No.5 in the Negative.
57. POINT No.6 :- In view of my foregoing reasons, I proceed the pass the following;
ORDER
Acting under Section 235(2) of
Cr.P.C, the accused is hereby
convicted for the offence punishable under Section 354(c), of IPC.
Consequently accused is also found guilty of the offence punishable and Section 3(1)(w), 3(2)(va) of SC/ST(POA) Act.
Acting under Section 235(1) of Cr.P.C, the accused is hereby
acquitted for the offence punishable under Sections 376 and 377 of IPC.
67 S.C.527/2018
To hear on Sentence.
(Dictated to the Stenographer Grade-I, transcription thereof corrected, signed and then pronounced by me in open Court on this the 03 rd day of October, 2024).
(Rajesh Karnam K) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.
Heard on sentence. Learned SPP and
Learned counsel for the accused.
ORDER ON SENTENCE
The police had contacted the complainant through phone No.7760558299. The complainant submitted she is unable to come from Tamil Nadu as on this day itself.
The learned SPP for prosecution submits as per the provisions of sec.354(c) maximum punishment is provided for 3 years for subsequent offence it may extend upto 7 years, as such in the present circumstances maximum sentence is to be imposed with fine.
Further learned SPP submits as per sec.357 of Cr.PC and with Karnataka Amendment Act with 68 S.C.527/2018 effect from 22.7.1987 the accused shall be imposed to pay fine when the matter is involving SC/ST (POA) Act 1989 offences.
The learned counsel for the accused submits accused is a first time offender as per the charge sheet. There is no any criminal records. The entire case record does not disclose any mitigating circumstances so as to impose maximum punishment. The accused may be considered for lenient view.
The learned counsel for the accused submits accused was already in jail for 88 days of imprisonment during the course of trial. The accused recently lost his father and mother is in agony. The accused is the only bread earner of the family having 2 kids. The circumstances may be considered while passing sentence.
Heard both side. This court on considering the punishment provided for offence under sec.354(c) of Cr.PC is specified to sentence accused to undergo imprisonment for a period of 2 69 S.C.527/2018 years.
The accused shall pay fine of Rs.50,000/-. In default accused shall undergone simple imprisonment for 3 months.
This court acting u/s.357(3) of Cr.PC is sentencing the accused to pay compensation of Rs.25,000/- towards victim. The compensation part shall be part of the actual sentence of fine.
The accused as per the provisions of SC/ST (POA) Act 1989 accused is sentenced to undergo imprisonment for the offence punishable u/s.3(1) (w) of SC/ST (POA) Act 1989 to undergo imprisonment for a period of 2 years with fine of Rs.5,000/-.
The accused for the offence punishable u/s.3(2)(va) of SC/ST (POA) Act 1989 is sentenced to undergo imprisonment for a period of 2 years and shall pay fine of Rs.5,000/-.
The accused is sentenced to undergo
imprisonment alongwith has to pay fine of
Rs.60,000/- in all. Out of the fine amount
70 S.C.527/2018
Rs.25,000/- is to be paid as compensation to the complainant.
The sentence of imprisonment shall run concurrently.
M.Os.1 and 2 being worthless are ordered to be destroyed after appeal period is over.
Office to issue conviction warrant.
The learned counsel for the accused has filed application u/s.389(3) of Cr.P.C to suspend the sentence of imprisonment till appeal period is over.
The order of hearing of sentence passed in open court.
Office to provide free copy of the judgment to accused.
(Dictated to the Stenographer Grade-I in open court, transcript thereof is corrected, signed and then pronounced in open court on this the 04th day of October, 2024).
(Rajesh Karnam.K) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.
71 S.C.527/2018ANNEXURE
1. WITNESSES EXAMINED FOR THE PROSECUTION:
P.W.1 K.Vimala P.W.2 A.N.Panigopal P.W.3 Anu P.W.4 Anbu Velu P.W.5 Shanthi P.W.6 Annapoorna P.W.7 Mahesh P.W.8 Fayaz P.W.9 Sunil P.W.10 Dr.Udayshankar P.W.11 Dr.Nandini Hadalagi P.W.12 Smt.Mary Shailaja P.W.13 Virupakshaswamy P.W.14 P.Raviprasad
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 Complaint Ex.P.1(a)(b) Signature of P.W.1 and P.W.13 Ex.P.2 Spot Panchanama Ex.P.2(a)(b) Signature of P.W.1 and P.W.14 72 S.C.527/2018 Ex.P.3 : Consent for medical examination Ex.P.3(a) : Signature of P.W.1 Ex.P.4 : 164 Cr.P.C. statement Ex.P.4(a) to (d) Signature of P.W.1 Ex.P.5 Statement of P.W.3 Ex.P.6 Statement of P.W.4 Ex.P.7 Statement of P.W.5 Ex.P.8 Statement of P.W.6 Ex.P.9 Statement of P.W.7 Ex.P.10 Seizure Mahazar Ex.P.10(a) (b)(c) Signature of P.W.8, 9 and 14 Ex.P.11 Caste report of accused Ex.P.11(a) Signature of P.W.10 Ex.P.11 Consent form Ex.P.11(a) (b) Signature of P.W.16 and 14 Ex.P.12 Medical certificate Ex.P.13 Caste report of complainant Ex.P.13(a) Signature of P.W.14 Ex.P.14 Statement of victim Ex.P.14(a) Signature of P.W.12 Ex.P.15 FIR Ex.P.15(a) Signature of P.W.13 Ex.P.16 Dep Order 73 S.C.527/2018 Ex.P.16(a) Signature of P.W.14 Ex.P.17 PF.No.02/2018 Ex.P.17(a) Signature of P.W.14 Ex.P.18 Rough sketch Ex.P.18(a) Signature of P.W.14 Ex.P.19 Accused statement Ex.P.19(a) Signature of P.W.14 Ex.P.20 P.F.05/2018 Ex.P.20(a) Signature of P.W.14 Ex.P.21 FSL Report
3. WITNESSES EXAMINED FOR THE DEFENCE:
Nil
4. DOCUMENTS MARKED FOR THE DEFENCE:
Ex.D1 to D5 Photo
Ex.D.6 Pendrive
Ex.D.7 25 pages (whatsapp chat)
Ex.D.8 Pendrive
5. LIST OF MATERIAL OBJECTS:
M .O.1 Chudidhar top
74 S.C.527/2018
M.O.2 Lenovo mobile
(Rajesh Karnam K)
LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.