Karnataka High Court
Yogish vs The State By Karkala Police on 23 June, 2022
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF JUNE, 2022
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRIMINAL APPEAL NO.1860 OF 2018
BETWEEN:
YOGISH,
S/O. RAMANANDA MERA,
AGED 30 YEARS,
R/O. KEMARU, NAGI HITTALU HOUSE,
PALADKA VILLAGE, MANGALURU TALUK,
D.K. DISTRICT - 574 104. ... APPELLANT
[BY SRI. P. KARUNAKAR, ADVOCATE]
AND:
THE STATE BY KARKALA POLICE,
KAUP CIRCLE, UDUPI DISTRICT,
REPRESENTED BY ITS SPP.,
HIGH COURT BUILDING, HIGH COURT,
BANGALORE - 560 001. ... RESPONDENT
[BY SRI. KRISHNAKUMAR K.K., HCGP]
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374 (2)
OF CR.P.C., PRAYING TO SET ASIDE THE ORDER OF COURT OF
PRINCIPAL SESSIONS JUDGE, UDUPI DISTRICT, UDUPI, DATED
07.07.2018, PASSED IN S.C. NO.24/2015, CONVICTING THE
APPELLANT FOR OFFENCES PUNISHABLE UNDER SECTIONS 376,
292, 420 AND 506 OF IPC AND SECTION 67A OF I.T. ACT.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
DICTATION, THROUGH VIDEO CONFERENCE/PHYSICAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
This appeal is directed against the Judgment and Order dated 07.07.2018 passed by the Court of Principal Sessions Judge, Udupi in Sessions Case No.24/2015, whereby the appellant/accused was convicted and sentenced for offence punishable under Sections 376, 292, 420 and 506 of IPC and Section 67(A) of the Information Technology Act, 2000 [hereinafter referred to as 'I.T. Act for short].
2. Heard the learned counsel for appellant and the learned HCGP for respondent/State and perused the evidence and material on record.
3. It is the case of prosecution that, the accused who was already married, on a false assurance of marriage, committed sexual intercourse with the victim/P.W.1 against her will and while committing the said act, videographed the act in his mobile phone and transmitted it into a compact disk [CD] and thereafter refused to marry her and 3 also threatened her with dire consequences saying that he will finish her life, if she revealed the matter to others.
To establish the guilt of the accused, the prosecution got examined P.Ws.1 to 12 and got marked Exs.P1 to 17 and M.Os.1 and 2. The defence got marked Ex.D1, a portion of the statement of P.W.2.
The learned Sessions Judge vide impugned Judgment and Order, convicted and sentenced the accused for the charged offences. Hence, this appeal.
4. P.W.1 is the victim who lodged the complaint as per Ex.P1. Her statement recorded under Section 164 of Cr.P.C. is marked as Ex.P3.
5. P.W.2 is the brother of the victim. He is also an attester to the spot mahazar-Ex.P2 and a witness to Ex.P7 under which the mobile phone-M.O.1 of the accused was seized, witness to Ex.P8 i.e, the seizure of CD-M.O.2 and witness to Ex.P4 under which the motorcycle of the accused was seized.
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6. P.W.3 is the doctor, who examined the accused and issued the certificate which is marked as Ex.P9. He has opined that there is nothing to suggest that the accused is incapable of performing sexual intercourse.
7. P.W.4 is the Assistant Engineer, who has prepared the sketch as per Ex.P10, the spot where the accused is alleged to have committed sexual intercourse with the victim.
8. P.W.5 is the Head Mistress, who has issued Ex.P11 with regard to Date of Birth of the accused.
9. P.W.6 is the panch-witness to Ex.P4 under which the Police seized the motorcycle of the accused. Exs.P5 and 6 are the photographs of the motorcycle.
10. P.W.7 is another panch-witness to Exs.P2, 4, 7 and 8.
11. P.W.8 is the WPC., who recorded the further statement of the victim/P.W.1 as per Ex.P14. Further, she took the victim to the hospital for medical examination. 5
12. P.W.9 is the Head Constable, who seized the motorcycle of the accused under Ex.P4.
13. P.W.10 is the Police Inspector, who took over further investigation from C.W.22 [P.W.12]. He received the Medical Report of P.W.1, which is marked as Ex.P13. He sent the mobile phone [M.O.1] of the accused and CD [M.O.2] as well as the pubic hair and nail scrapping to the Forensic Science Laboratory for examination. He has handed over the further investigation to C.W.22 [P.W.12].
14. P.W.11 is the Police Sub-Inspector, who received the written complaint from P.W.1 on 27.03.2011 and registered a case and issued FIR-Ex.P15. He has conducted spot mahazar-Ex.P2 in the presence of P.Ws.2 and 7 and arrested the accused. Further, he seized the mobile phone [M.O.1] of the accused under a mahazar- Ex.P7 and seized CD [M.O.2] from the house of the aunt of the accused under a mahazar Ex.P8. On completion of the investigation, he has filed the charge-sheet for offence punishable under Sections 376, 292 and 506 of IPC. 6
15. P.W.12 is the CPI., who took further investigation from P.W.10. He conducted seizure panchanama of the motorcycle of the accused, received copy of the victim's statement recorded under Section 164 of Cr.P.C. as per Ex.P3, collected RFSL and CFSL Report as per Exs.P16 and 17 etc. He has filed additional charge- sheet against the accused under Sections 376, 292, 420 and 506 of IPC and under Section 67(A) of the I.T. Act.
16. In her complaint, victim has stated that when she was visiting the house of her sister, she came in contact with the accused, a cousin of her brother-in-law. They became close to each other and the accused was insisting her to have physical relationship. She has stated that the accused had taken her picture from his mobile phone and he was threatening her stating that if she did not cooperate, he will publish her pictures. She has further stated that they were in love for the past 7-8 months and on 18.01.2010 at about 12.30p.m., the accused with a false promise of marriage, took her to Chilimbibaradi Cross, Sanuru village and had sexual intercourse with her and 7 without her knowledge, videographed the said act and thereafter, he was insisting her to have sexual intercourse with him repeatedly threatening that he will distribute the CD, if she refused.
17. In her evidence, the victim - P.W.1 has stated that she was visiting the house of her elder sister at Kemaru of Paladka village. The accused is none other than the cousin of her brother-in-law. He had collected her mobile number and used to call on her mobile phone and she was interacting with him in a casual manner. The accused expressed his love towards her and initially she denied. Later he convinced and promised that he will marry her and also told her that he is a bachelor. She has further stated that on 18.01.2010 about 12.30 noon the accused called her to come near Barady Cross, Sanuru Village, from there accused took her in his motorcycle to a lonely place and expressed his desire to have sexual intercourse with her. Though she denied, with a promise of marriage he committed sexual intercourse against her will. She has further stated that after one week accused took 8 her to the same place and had sexual intercourse on two occasions against her will. Later accused started insisting her to have sexual intercourse with him stating that otherwise he would display the photographs to the public and media, that were taken during sexual intercourse he had with her on 18.01.2010, without her knowledge. P.W.1 has further deposed that she removed her sim from the mobile phone. However, the accused was calling on her brother's mobile phone. She was waiting for the accused to marry her but later she came to know that he was already married. Therefore, she informed the entire incident to her brother, who in turn instructed her to lodge a complaint.
18. The medical report of the victim is marked as Ex.P13 through the Investigating Officer. The doctor who conducted the medical examination of the victim has not been examined. As per Ex.P13, the victim was subjected to sexual intercourse. It is stated that no injuries are noticed on her private parts and no other injuries were noticed on her person.
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19. The first incident of sexual assault is alleged to have taken place on 18.01.2010. According to P.W.1, after one week again the accused took her to the same place and had sexual intercourse on two occasions. The complaint came to be lodged on 27.03.2011. P.W.1 has deposed that during 2014, the police took her to Women and Children Hospital, Udupi, where she underwent medical examination by a lady doctor. Hence, if her evidence is carefully examined, her medical examination was conducted four years after the incident occurred. In her evidence, though P.W.1 has alleged that the accused was insisting her to have sexual intercourse with him threatening that otherwise he will display the photographs to the public and media, however, she has not stated that, even after the said threat given to her, he indulged in sexual intercourse with her.
20. P.W.2 i.e, the brother of the victim has deposed that the accused used to call his sister on her mobile phone and his sister used to interact with him in a casual manner. The accused expressed his intention to love P.W.1. Initially 10 P.W.1 denied, but later accused convinced and promised her that he will marry her and stated that he is a bachelor, during 2010. He has further deposed that P.W.1 informed that the accused committed sexual intercourse with her against her will by taking her to a lonely place by promising to marry her. Further, the accused was demanding to have sexual intercourse with her stating that otherwise he would show the photographs to the public and media, that were taken during sexual intercourse committed by him without her knowledge.
21. It is the specific case of the prosecution that the accused had videographed the act of sexual intercourse with the victim and he was threatening her that he will publish the said videograph if she did not cooperate with him and forced her to have sexual intercourse with him. It is also the case of prosecution that by making a false promise of marriage, the accused initially induced the victim to have sexual intercourse with him stating that he is a bachelor. Later, P.W.1 came to know that he was already married.
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22. If the evidence of P.W.1 is carefully perused then, according to her, on 18.01.2010 at about 12.30 noon, the accused took her to a lonely place and committed sexual intercourse by promising that he will marry her. She has stated that after one week, the accused took her to the same place and had sexual intercourse on two occasions against her will. However, she has not alleged that on those occasions the accused had threatened her saying that he has the video or the photographs of her and by threatening her he committed sexual intercourse. According to P.W.1, later the accused started insisting her to have sexual intercourse with him stating that, otherwise he would display the photographs to the public etc, which were taken during the sexual intercourse committed on her on 18.01.2010. As already stated, in her evidence P.W.1 has not stated that even thereafter the accused committed sexual intercourse on her.
23. The Investigation Officer has seized the mobile phone [M.O.1] and CD [M.O.2] under Exs.P7 and P8 12 respectively. P.W.11 has deposed that the accused disclosed on 28.03.2011 that he had recorded the obscene videos in his mobile phone and converted it into CD. The said CD was seized from the house of his aunt under a mahazar Ex.P8. P.W.7 is the panch witness to the seizure mahazar Exs.P7 and 8.
24. PW.2 is another witness to the seizure mahazar Exs.P7 and 8 under which the mobile phone and the CD were seized at the instance of the accused. It can be gathered from his evidence that the CD was displayed in a laptop and obscene video of accused and P.W.1 was found in the said CD. Hence, there is sufficient evidence to show that the accused had videographed certain obscene acts of P.W.1 and himself from his mobile phone and it was transferred to a CD.
25. The learned counsel for appellant has drawn the attention of the Court to the cross-examination of P.W.1 wherein, she has stated that on 18.01.2010, the accused took her passport size photographs in his mobile and apart 13 from the said photographs she has not seen any obscene photos or any nude photos in his mobile phone. She has also admitted in her cross-examination that the accused had no occasion to take her photographs on 18.01.2010. In her chief-examination, P.W.1 has stated that the accused told her that he will display the photographs to the public, which were taken during sexual intercourse he had with her on 18.01.2010. However, in the cross-examination she has stated that she did not see any obscene photos or nude photos in the mobile phone of the accused and on 18.01.2010 there was no occasion for the accused to take her photographs. Hence, from the evidence of P.W.1, it is difficult to come to a conclusion that on 18.01.2010 the accused took any obscene video or photographs. It is not forthcoming as to when the said video which was found in M.O.2 was taken. Further as already noticed, P.W.1 has not deposed in her evidence that after the accused threatened her saying that he will display the obscene videos taken during the time of intercourse, both of them had intercourse and by threatening her, the accused had committed sexual intercourse with her.
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26. P.W.1 has admitted in her cross-examination that the accused was loving her and even she was loving him and prior to the alleged incident, both had been to Barady cross on 2-3 occasions and they used to visit Barady cross once in 2 weeks. According to her, the accused made a false promise of marriage saying that he is not married and later she came to know that he is already married. Admittedly, P.W.1 is a major aged about 21 years at the time of incident in question. Though the learned counsel for the appellant tried to contend that P.W.1 knew about the marriage of the accused even prior to the incident, however, it is not elicited from P.W.1 that she knew even before the first incident that the accused was already married. The material on record would disclose that both the accused and P.W.1 were loving each other. In the cross-examination, P.W.1 has admitted that she was in love with the accused and prior to the alleged incident, both of them went to Barady cross on 2-3 occasions, etc. In her cross-examination, she has further stated that whenever she visited the house of her brother-in-law, she used to interact with the accused very closely and they 15 loved each other. She has also admitted that on 18.01.2010 at 8.00 a.m. the accused called her over her mobile phone and she did not inform this fact to her family members. She did not raise any hue and cry when the accused took her to a solitary place and even though the accused removed her cloths, she did not resist. She has further stated that after the alleged act was committed, both of them immediately left the said place.
27. In the case of Udaya Vs. State of Karnataka reported in [2003]4 Supreme Court Cases 46, it is held that consent given by the prosecutrix to sexual intercourse with accused, with whom she was deeply in love, on a promise that he would marry on a later date and she continuing to meet the accused and often having sexual intercourse, in such a situation, the consent cannot be said to be given under a misconception of fact. It is further held that there is no straitjacket formula and each case has to be decided considering the evidence and surrounding circumstances of that case.
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28. In the case on hand, a careful perusal of the evidence of P.W.1 would indicate that consent given by her is not under misconception of fact. However, the fact remains that the accused was a married man and according to P.W.1, she later came to know that he was already married. The prosecution has also established that the CD [M.O.2] seized from the accused contained some obscene video which is alleged to have taken by the accused in his mobile phone and later it was transferred to the CD. Hence, the material on record though not sufficient to convict the accused for offence punishable under Sections 376 and 506 of IPC, however, the findings recorded by the trial Court for convicting the accused for offence punishable under Sections 292, 420 of IPC and Section 67A of the Information Technology Act, 2000 is in accordance with law. Hence, the following:
ORDER Appeal is partly allowed.
The Judgment and Order dated 07.07.2018 passed by the learned Principal Sessions Judge, Udupi District, Udupi, 17 in Special Case No.24/2015, convicting and sentencing the appellant/accused for offence punishable under Sections 376 and 506 of IPC is hereby set aside.
The conviction and sentence passed against the appellant/accused for offence punishable under Sections 292 and 420 of IPC and under Section 67A of the Information Technology Act, 2000, is hereby confirmed.
The sentence of imprisonment imposed for the above offence shall run concurrently.
The accused is entitled to benefit of set off under Section 428 of Cr.P.C.
Sd/-
JUDGE Ksm*/HB/Ksm*