Karnataka High Court
State Of Karnataka vs Kusumadhara on 16 April, 2024
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CRL.A No. 677 of 2018
C/W CRL.A No. 678 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF APRIL, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO.677 OF 2018
C/W
CRIMINAL APPEAL NO.678 OF 2018
In Crl.A.No.677/2018:
BETWEEN:
State of Karnataka
By Sullia Circle,
Represented by SPP
High Court Building,
Bengaluru-01.
...Appellant
(By Sri. M.V.Anoop Kumar, HCGP)
Digitally signed
by SRIDEVI S AND:
Location: HIGH
COURT OF Kusumadhara
KARNATAKA
S/o Narayana Patali,
Age 35 years,
R/At Morangallu Mane,
Aletti Village,
Sullia Taluk-574 239.
...Respondent
(By Sri. V.S.Vinayaka, Adv.(Amicus Curiae))
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CRL.A No. 677 of 2018
C/W CRL.A No. 678 of 2018
This Criminal Appeal field u/s. 377 Cr.P.C., praying to
modify the judgment and order dated 11.08.2017 passed by
the VI Additional District and Sessions Judge, D.K., Mangaluru
in S.C.No.129/2013 and enhance the sentence imposed on the
accused by imposing adequate sentence for the offence p/u/s
292(2)(a) of IPC and section 67A of Information Technology
Act, 2000 etc.
In Crl.A.No.678/2018:
BETWEEN:
State of Karnataka
By Sullia Circle,
Represented by SPP
High Court Building,
Bengaluru-01.
...Appellant
(By Sri. M.V.Anoop Kumar, HCGP)
AND:
Kusumadhara
S/o Narayana Patali,
Age 35 years,
R/At Morangallu Mane,
Aletti Village,
Sullia Taluk-574 239.
...Respondent
(By Sri. V.S.Vinayaka, Adv. for
Sri. T. Hareesh Bhandary, Adv.)
This Criminal Appeal field u/s. 378(1)(3) Cr.P.C., praying
to grant leave to appeal against the judgment and order of
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CRL.A No. 677 of 2018
C/W CRL.A No. 678 of 2018
acquittal passed by the Learned VI Additional District and
Sessions Judge, D.K., Mangalore in S.C.No.129/2013, dated
11.08.2017 in so for as it relates to acquitting
respondent/accused for the charged offences p/u/s 417, 376,
506, 384, 511 of IPC.
These Criminal Appeals, coming on for hearing, this day,
Sreenivas Harish Kumar J., delivered the following:
JUDGMENT
The accused faced trial for the offences
punishable under sections 376, 417, 506, 384, 511
and 292(2)(a) of IPC, and section 67(A) of
Information Technology Act. The trial court, by its
judgment dated 11.08.2017 acquitted him of the
offences punishable under sections 376, 417, 384,
506 and 511 of IPC and convicted for offences
under section 292(2) (a) of IPC and section 67(A)
of Information Technology Act. Hence these two
appeals by the State. Crl.A.No.678/2018 is
against acquittal judgment and Crl.A.No.677/2018
is filed under Section 377 of Cr.P.C., for
enhancement of sentence.
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2. The case has the following factual
background. On 19.06.2013, PW1 the prosecutrix
made a report to the police stating that about two
years before that date, the accused was introduced
to her when she had been to attend a social
function arranged in her relative's house. The
accused collected her telephone number and then
used to call her oftenly. Once he proposed to
marry her, but she conveyed to him that she would
not take any decision without consulting her
elders. Inspite of this, the accused visited her
house around 5.30 p.m. on 20.11.2012 and had to
stay overnight in her house as there was no bus
facility to return to his place. She complained that
the accused, during that time, told her that he
would convince her parents to agree for their
marriage, and stating so, solicited sexual advances
from her. Despite her resistance, he had sexual
intercourse with her and without her knowledge,
he not only video recorded their intimate moments
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but also took her nude photographs. Thereafter
the accused did not stop pestering her with
marriage proposal. Irritated by this, PW1 changed
her SIM cards to avoid him, but somehow he was
able to procure her telephone number and used to
call her. During one such call, on 27.05.2013, the
accused held out a threat to her stating that he
would publish her nude video and photos unless
she would pay him Rs.5,00,000/-. On 17.06.2013,
she came to know from her relatives Mohan and
Harish that the accused had posted the obscene
photos on the face book. This made her approach
the police.
3. Appreciating the evidence of 19
prosecution witnesses, the documents as per
Exs.P1 to P26 and the material objects MO1 to
MO3, the trial court found that the testimony of
PW1 that she was raped by the accused was not
trustworthy. It also found the allegations of
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cheating her and demanding Rs.5,00,000/- from
her to forbear from publishing the photographs
lacked evidence, and in that regard also the
testimony of PW1 is held to be not believable.
However, the trial court found that the evidence of
PW1 about posting of obscene videos and photos
on the face book by the accused is believable, and
her testimony is corroborated by PW2, PW3, PW4
and PW6. The report of PW9, the scientific officer
from Truth Lab, evidence of PW18 - Nodal Officer
from 'Airtel' and the investigation provide evidence
that the posting of obscene pictures was through
the mobile phone of the accused. These are the
main reasons recorded by the trial court for taking
a decision to acquit the accused of some of the
offences and convict him for two offences as
aforementioned.
4. We have heard the argument of Sri.
M.V.Anoop Kumar, learned Government Pleader for
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the State and Sri. V.S. Vinayaka, learned amicus
curiae for the respondent-accused. The argument
of the Government Pleader is that there is no
reason to disbelieve the testimony of PW1 as
regards the motive of the accused to have
intercourse with her on the pretext of marrying
her. Her testimony shows that she did not agree
for intercourse even though accused told that he
would marry her. It was a forcible intercourse,
and he threatened to post the obscene pictures in
the social media if she did not pay him
Rs.5,00,000/-. The evidence of PW1 is very much
believable, and therefore the trial court should
not have held that PW1 was a consenting party.
5. Sri. Vinayaka replied that PW1
approached police eight months after the alleged
incident. She was a major and working in forest
department. She knew the consequences of her
act, her testimony in examination-in-chief that she
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protested is nothing but falsehood, as in the cross
examination she has clearly admitted that she
wouldn't have gone to police station if the accused
had not posted the pictures on social media. This
answer itself is enough to disbelieve her entire
testimony. The text message in regard to
demanding Rs.5,00,000/- has no proof. Therefore
he argued for rejecting the appeal by the State.
6. In regard to offences for which the trial
court has recorded acquittal it may be stated that
the trial court has taken a correct view. PW1 is
the star witness. Though in the examination-in-
chief she stated that the accused had intercourse
despite strong resistance from her, and that the
accused thereafter demanded Rs.5,00,000/- from
her to forbear from publishing the obscene
pictures, her answers in the cross-examination
clearly indicate that there was no resistance from
her. She was working as teacher before joining
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forest department. The accused visited her house
two times. There was no good opinion about the
accused and his family and this was the reason for
the family of PW1 not giving consent for the
marriage. She knew very much that her marriage
could not be performed with the accused, and yet
she would allow the accused stay in her house on
the night of 14.4.2013. All that she has answered
in the cross examination that she offered
resistance when the accused held her is difficult
to be believed. Her one answer is that she
wouldn't have lodged complaint against him with
the police if he had not posted the photos on the
facebook. This answer dislodges credibility in her
testimony about forcible intercourse.
7. As has been rightly held by the trial
court, there is no evidence for demand made by
the accused for Rs.5,00,000/-. She has stated
that she showed the message sent to her by the
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accused demanding for money, but the prosecution
has not produced any proof in that regard. The
allegation in this regard appears to be baseless.
This being the evidence in regard to offences in
respect of which acquittal has been recorded, we
too find it difficult to take a different view in order
to convict the accused.
8. Another appeal is for enhancement of
sentence in regard to offences punishable under
Section 292(2)(a) of IPC and Section 67A of
Information Technology Act. Learned High Court
Government Pleader did not submit the reasons
which necessitate enhancement of sentence for the
said two offences. However in the memorandum of
appeal, it is stated that maximum sentence of
imprisonment ought to have been imposed keeping
in mind the sentencing structure provided in the
two sections. The trial court has sentenced the
accused to undergo simple imprisonment for a
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period of six months and fine of Rs.2,000/- for the
offence under Section 292(2)(a) of IPC and simple
imprisonment for a period of one year and fine of
Rs.10,000/- for the offence under Section 67A of
Information Technology Act, ofcourse with further
imprisonment in case of failure to pay fine.
9. If the sentencing structure is seen for the
offence under Section 292(2)(a) of IPC, if it is first
conviction the imprisonment period may extend
upto two years and fine which may extend upto
Rs.10,000/-. For the offence under Section 67A of
Information Technology Act, if it is first conviction
the imprisonment period may extend upto five
years and fine which may extend upto
Rs.10,00,000/-. It is not the case of the
prosecution that the accused is found guilty of the
said offences for the second time. If that is so the
prosecution ought to have placed materials before
the court about the previous conviction. Therefore
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the accused has suffered conviction for the first
time.
10. Having heard the accused on the
sentence to be imposed, the trial court appears to
have exercised discretion especially with regard to
imposition of fine. Though the law provides for
imposition of imprisonment for a maximum period
of two years in respect of the offence under
Section 292(2)(a) of IPC and five years in respect
of offence under Section 67A of Information
Technology Act, the facts and circumstances
considered by the trial court indicate that the
sentence imposed on him is adequate. We don't
find a good ground to enhance the sentence.
11. Despite our conclusion that the sentence
cannot be enhanced, still what we find is that the
trial court should not have sentenced the accused
for both the offences after recording conviction for
the same. Sentence should have been confined to
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the offence under Section 67A of Information
Technology Act. The language of both the sections
may be different but they appear to be identical
and deal with same kind of offence. In this view
sentence for either of the two would suffice the
situation. Since the Information Technology Act is
a special legislation, accused may be convicted in
accordance with the sentencing structure provided
in Section 67A of Information Technology Act. Sub
clause (iii) of clause (c) of Section 386 of Cr.P.C.,
empowers the appellate court to alter the nature
or the extent, or the nature and extent, of the
sentence so as to enhance or reduce the same.
Sub-clause (e) empowers to make any amendment
or any consequential or incidental order that may
be just or proper. In this view of the matter we
hold that it is enough if the accused is sentenced
for the offence under Section 67A of the
Information Technology Act and we find that the
sentence imposed by the trial court for this offence
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is adequate in the facts and circumstances and
does not warrant enhancement. With this
discussion we proceed to pass the following:
ORDER
Criminal Appeal No.678/2018 is
dismissed.
Criminal Appeal No.677/2018 is
dismissed, however the order on
sentence is modified. The sentence
imposed on the accused for the offence
under section 292(2)(a) of IPC is set
aside and the order on sentence passed
by the trial court for the offence under
section 67A of the Information
Technology Act is confirmed.
The High Court Legal Services
Committee is hereby directed to
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remunerate the amicus curiae Sri
V.S.Vinayaka by a sum of Rs.10,000/-.
Sd/-
JUDGE
Sd/-
JUDGE
SD,KMV
