Yogish vs The State By Karkala Police
2022 Latest Caselaw 9425 Kant

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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

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.

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.

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.

     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

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

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.

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

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.

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

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

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.

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

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.

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,

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*