Kumar Gaurav S @ Vinu vs The State Of Karnataka
2021 Latest Caselaw 2561 Kant

  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 2ND DAY OF JULY, 2021

                        BEFORE

  THE HON'BLE Dr. JUSTICE H.B. PRABHAKARA SASTRY

       CRIMINAL REVISION PETITION No.119 OF 2019

BETWEEN:

KUMAR GAURAV S @ VINU
S/O LATE SHIANANDA SWAMY B.
AGED ABOUT 28 YEARS
R/AT NO.737, 46TH CROSS
B BLOCK, JAYANAGAR
OPP. METRO PILLAR NO.18
BENGALURU - 560 082.
                                              :PETITIONER

(BY SRI. ASIM MALIK AND SRI. AIYAPPA, ADVOCATES)

AND:

1. THE STATE OF KARNATAKA
BY SHESHADRIPURAM PS,
BENGALURU REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
AMBEDKAR VEEDHI, BENGALURU - 560 001.

2. Ms. DEEPIKA Y.G.
D/O LATE YOGANANDA
AGED ABOUT 27 YEARS
R/O NO.327, OLD NO.22/1, 7TH MAIN, GAVIPURA
HANUMANTHANAGARA, BENGALURU - 560 019.

                                          :RESPONDENTS
(BY SMT. K.P. YASHODHA, HCGP FOR R1;
     R2 - SERVED)
                                                    Crl.RP.119/2019
                                  2



     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH SECTION 401 OF CR.P.C. PRAYING
TO SET ASIDE THE ORDER DATED 03.11.2018 PASSED IN S.C.
NO.972/2017    BY   LEARNED       LIII   ADDL.     CITY   CIVIL   AND
SESSIONS JUDGE, BENGALURU (CCH-54) AND DISCHARGE THE
PETITIONER FROM THE CASE AND PASS ANY ORDER AS THE
COURT DEEMS FIT, IN THE INTEREST OF JUSTICE.


     THIS     CRIMINAL     REVISION      PETITION    HAVING       BEEN
HEARD THROUGH PHYSICAL / VIDEO CONFERENCING HEARING
AND RESERVED FOR ORDERS ON 29.06.2021 COMING ON FOR
PRONOUNCEMENT THROUGH PHYSICAL/ VIDEO CONFERENCING
HEARING     THIS    DAY,    THE       COURT   PRONOUNCED           THE
FOLLOWING:


                             ORDER

The petitioner who is accused No.1 in S.C.

No.972/2017 pending on the file of learned LIII Addl. City

Civil & Sessions Judge At Bengaluru (for brevity, Sessions

Judge's Court) for the offences punishable under Sections

120B, 376, 420, 307, 323, 328, 354 read with Section 34

of the Indian Penal Code (for brevity IPC) has filed this

petition seeking to set aside the order dated 03.11.2018

passed by the learned Sessions Judge's Court in said S.C.

Crl.RP.119/2019

No.972/2017 rejecting his application filed under Section

227 of Code of Criminal Procedure (for brevity, Cr.P.C.).

2. Respondent No.1 State is being represented by

learned High Court Government Pleader. Respondent No.2

though served has remained absent.

3. Though this matter is listed for admission,

however, with the consent of learned counsels from both

side, the matter is taken up for its final disposal.

4. Heard arguments from both side.

5. The only point that arises for my consideration

is, whether the impugned order suffers from any illegality,

perversity warranting interference at the hands of this

Court?

6. The present respondent No.2 is the

complainant in Crime No.41/2017 on the file of the first

respondent - Police Station which was originally registered

for the offences punishable under Sections 120B, 376,

420, 307, 323, 328 and 354 read with Section 34 of IPC.

After completing the investigation, the police have filed the Crl.RP.119/2019

charge-sheet against two accused wherein the present

petitioner is accused No.1.

7. The summary of the allegation made in the

charge-sheet is that during February, 2017, through

accused No.2 by name Smt. Sudha S. W/o G. Girish, the

accused No.1 was introduced to the complainant. Accused

No.2 informed accused No.1 that the complainant is a

divorcee and is earning from her job, as such, if she is

trapped, a lot of money can be made easily. Accordingly,

they hatched a conspiracy in which accused No.1 making

the complainant to believe that he is loving her and would

marry her, forcibly made the complainant to believe the

same. On 01.03.2017, accused No.2 took the complainant

to her house and gave her some juice to drink. The said

juice was mixed with some drug after drinking which the

complainant became unconscious. At that time, accused

No.1 forcibly raped her. After gaining consciousness the

complainant came to know this incident and when

questioned, accused No.1 promised that he would marry Crl.RP.119/2019

her and applied sindhura on her forehead. Thereafter on

few dates the accused made the complainant to go to

different places including some resorts wherein also he

subjected the complainant to forcible rape. He went on

postponing the marriage with the complainant and started

giving one or other false reasons. In the meantime by

securing the nude photos of the complainant, he started

blackmailing the complainant and extracted huge money of

not less than Rupees Three Lakhs from her at different

intervals. He also started subjecting her to physical assault

when she used to resist his act of forcible sexual

intercourse. In one such incident on 25.04.2017 at about

6.00 p.m. when the complainant had gone near the office

of the accused No.1 to enquire him about their marriage,

the accused took the complainant to a nearby place and

physically assaulted her inflicting injuries upon her and

thus has committed the alleged offences.

8. The contention of the petitioner in the petition

and the arguments of the learned counsel for the petitioner Crl.RP.119/2019

is that the petitioner (accused No.1) had intention to

marry the complainant as such, he has even applied

sindhura on her forehead, however, since the petitioner

later came to know that the complainant had not yet

secured dissolution of her earlier marriage, he could not

marry her. Thus there is no cheating played by him.

Learned counsel further submitted that the complainant

had given her consent for having sexual relationship with

her, as such, it was with free consent. He also submitted

that the complainant had filed similar complaint against

five other persons which shows the conduct of the

complainant. In his support, he relied upon few Judgments

of the Hon'ble Apex Court which would be referred to at

the appropriate stage hereafter.

9. Learned High Court Government Pleader in her

brief arguments submitted that the complainant in the

instant case is none else than the victim. In her very

complaint itself she has given a detailed account of how

she was forced to succumb to the sexual harassment and Crl.RP.119/2019

acts of the accused. The complainant has clearly stated

that by administering drug to her she was made to fall

unconscious, at that time she was subjected to rape by the

present petitioner and he had also taken her nude

photographs and started blackmailing her. It is due to the

blackmailing she had to subsequently join him at different

places and subject herself for his forcible acts of rape

though she was not willing for the same. She submitted

that the mere non presence of injuries on the body of the

victim itself would not take away the case of the

prosecution. She also submitted that it is not a stage

where a mini trial can be held to decide the alleged

innocence of the accused. On the other hand there are

sufficient materials to subject the petitioner / accused for

trial.

10. The complainant herself is the victim in this

case who is shown to have given a detailed written

complaint before the police on 26.04.2017. In her

complaint she is shown to have stated that it was through

accused No.2 who is also a lady she was introduced to Crl.RP.119/2019

accused No.1. The complainant appears to have given the

details as to how she was made to go to the house of

accused No.2 on 01.03.2017 where she is said to have

been administered with some drug in a juice and when she

was not fully conscious, she is said to have been subjected

to rape by accused No.1 with the connivance of accused

No.2. The complainant appears to have stated that it was

at that time the accused has taken some of her

photographs in nude posture and then started harassing

her to join accused No.1 on several occasions and to

subject herself for his sexual acts. In the complaint she

has also stated that she was forced to send her few more

nude photographs at the instance of accused No.1. She

has further stated that when questioned at the first date of

incident itself, the accused had stated that he would marry

her and applied sindhura on her forehead, however, later

he started postponing the alleged marriage promise and

shown that he is not inclined to marry her rather he

started extracting money from her on several occasions.

Thus at the very first instance the complainant who claims Crl.RP.119/2019

herself to be a victim of the alleged incidents has given a

detailed account of the alleged incidents. The charge-sheet

papers further go to show that the Investigating Officer

after investigation has filed charge-sheet against the

accused for the alleged offences however, striking Section

307 from the offences which was originally mentioned in

the FIR.

11. Learned counsel for the petitioner in his

arguments submitting that the present petitioner (accused

No.1) had intention to marry the complainant but he could

not fulfil his promise since the complainant was said to

have not yet obtained dissolution of her earlier marriage,

submitted that the said act of the accused would not

amount to cheating, on the other hand the consent given

by the complainant is not by any misconception of fact,

relied upon the following three Judgments of the Hon'ble

Apex Court:

In Dr.Dhruvaram Murlidhar Sonar Vs. State of

Maharashtra and Others reported in (2019) 18 SCC Crl.RP.119/2019

191, the Hon'ble Apex Court with respect to Sections 375,

90 and 420 of IPC in para 23 of its Judgment was pleased

to observe as below:

" 23. Thus, there is a clear distinction between rape

and consensual sex. The Court, in such cases, must

very carefully examine whether the complainant had

actually wanted to marry the victim or had mala fide

motives and had made a false promise to this effect

only to satisfy his lust, as the latter falls within the

ambit of cheating or deception. There is also a

distinction between mere breach of a promise and

not fulfilling a false promise. If the accused has not

made the promise with the sole intention to seduce

the prosecutrix to indulge in sexual acts, such an act

would not amount to rape."

In Pramod Suryabhan Pawar Vs. State of

Maharashtra and Another reported in (2019) 9 SCC

608, with respect to Section 375 of IPC, the Hon'ble Apex

Court was pleased to observe at para 14 of its Judgment

that there is distinction between a false promise given on Crl.RP.119/2019

the understanding by the maker that it will be broken, and

the breach of a promise which is made in good faith but

subsequently not fulfilled.

In Maheshwar Tigga Vs. State of Jharkhand

reported in (2020) 10 SCC 108, the Hon'ble Apex Court

was pleased to observe with respect to Section 90 of IPC

that consent given under misconception of fact is no

consent in the eye of law but misconception of fact has to

be in proximity of time to the occurrence and cannot be

spread over a period of four years as it was in the said

case before the Hon'ble Apex Court.

12. In the instant case according to the

complainant, the first instance of alleged rape is said to

have taken place on 01.03.2017. The complaint was filed

on 26.04.2017 i.e. within a period of two months.

However, according to the complainant, there were few

more acts of alleged rape upon her by the petitioner in the

meantime. It is throughout the case of the complainant

that for the first incident of alleged rape upon her which Crl.RP.119/2019

was on 01.03.2017, there as no consent from her side

either direct or indirect or even a forcible consent.

According to her, it was seducing her by administering

some drug through some juice she was made to fall

unconscious and at that time petitioner (accused No.1)

subjected her to rape. Therefore, as at this stage and as

could be gathered from the charge-sheet materials, the

alleged first incident of rape was devoid of any type of

consent from the alleged victim towards the act. However,

the alleged subsequent incidents of alleged sexual acts

which the complainant has called as the incidents of rape

at this stage appears to be by the involvement of the

complainant also. However, the complainant has stated in

her complaint itself that she was forced to join the accused

No.1 to different places including some resorts and hotels

since the accused was blackmailing her of publishing her

nude photographs in social medias including Youtube.

According to the complainant those photographs were

taken by the accused when she was for the first time

subjected to rape by the accused No.1 after making her Crl.RP.119/2019

unconscious by administering some drug. She has also

stated, even thereafter also the accused by forcing her and

blackmailing her had secured her few more photographs

and started blackmailing, as such, she had to join the

accused and tolerate all his sexual acts said to have been

practised against her. In such a circumstance, at this

stage and prima facie, only by going through the charge-

sheet papers it cannot be concluded that the complainant

was a consenting party to the alleged incidents. The same

has to be ascertained only after a full fledged trial.

Further the arguments of the learned counsel for the

petitioner that the accused No.1 intended to marry the

complainant as promised to her but he could not, since the

complainant could not secure divorce from her former

husband is also not acceptable for the reason that at this

stage there are no materials to show that complainant was

waiting for an order of dissolution of her alleged previous

marriage with other person and till she filing the

complaint, there was no such order in her favour.

Crl.RP.119/2019

Secondly except an alleged act of application of sindhura

by accused No.1 on the forehead of the complainant, there

are no other materials to come to a finding at this stage

that accused No.1 truly intended to marry the complainant

but he could not perform his promise due to unavoidable

circumstances.

13. Therefore, with great respect to the above

Judgments relied upon by the learned counsel for the

petitioner it has to be observed that those Judgments since

differ from the facts and circumstances of the present

case, would not enure to the benefit of the petitioner at

this stage. On the other hand suffice it to say that when

the alleged victim herself is the complainant in this case

and at the very first inception she has given the details of

the alleged incident and also that the Investigating Officer

is shown to have collected sufficient incriminating

materials to subject the accused for trial, I am of the view

that there are sufficient materials to proceed further

against the accused in the Trial Court that there are no Crl.RP.119/2019

grounds to discharge the present petitioner from the

alleged crime. Accordingly, I proceed to pass the

following:

ORDER

The petition stands dismissed as devoid of merit.

Registry to transmit copy of this Order to the

concerned Sessions Judge's Court, forthwith.

In view of dismissal of the main petition, I.A.1/2019

seeking stay does not survive for consideration.

Sd/-

JUDGE

sac*