Consent and dissemination are crucial factors in determining liability under Section 354-C of IPC.

JUDGMENT :

1. This Criminal Appeal is filed by the appellant aggrieved by the judgment in SC No.131 of 2019 dated 10.02.2022 passed by the Special Sessions Judge for Fast-Tracking the Cases relating to Atrocities against women-cum-VIII Additional District and Sessions Judge at Khammam, whereby the appellant was convicted and sentenced to undergo rigorous imprisonment for a period of three years under Section 354-C of IPC. However the appellant was acquitted under Section 376(1) & 506 of IPC.

2. The case of the prosecution is that the victim/P.W.1 was running Vasavi Fancy Store at Enkoor. The appellant was running a photo studio opposite to the shop of the victim. He got acquainted with the victim and she became close and had sexual contact. They used to meet in the photo studio of the appellant. After carrying on her relation for over eight months, afraid of her family members, the victim wanted to change her behavior and kept the appellant away from sexual contact. On 30.07.2016 at about 8.00 p.m., the appellant called her to come to his studio to fulfill his sexual desire and asked why she was avoiding him. He warned her if she would not come that day, he would reveal the videotape to others which were recorded secretly while they had sex. She went to his studio where the accused had intercourse with her forcibly and warned her to come whenever he calls her to fulfill sexual his desire, failing he would reveal the videotape to others. Aggrieved by the conduct of appellant, complaint was filed.

3. The police investigated the case and filed charge sheet for the offences under Sections 354-C, 376 and 506 of IPC and Sections 66 and 67 of Information Technology Act. However, the learned Sessions Judge found that only offence under Section 354-C of IPC was made out on facts and acquitted the appellant for the other offences under Sections 376(1) and 506 of IPC

4. Learned Sessions Judge found that there was extramarital sexual relationship in between P.W.1 and the appellant. The recorded videos were not transmitted in any electronic form. The trial Court further found that though initially PW1 had accepted to video recording the sexual act, later she was not inclined and bluntly refused. However, recording was done by the appellant, for which reason, an offence under Section 354-C of IPC was made out.

5. Learned counsel appearing for the appellant would submit that the prosecution has failed to prove the offence under Section 354-C of IPC since the prosecution failed to prove that the video was taken without her consent. Learned counsel has drawn the attention of this Court to paras 29, 32 and 33 of the judgment to substantiate his argument. He further argued that even the learned Sessions Judge found that P.W.1 knew about filming and she promised to come back to take the video after being well dressed in one of the videos. Further, the learned Sessions Judge found that they were in extramarital relation and both the appellant and victim/P.W.1 knew what was happening and continued the relationship in the name of love. P.W.1 was administering 10 to 13 sleeping pills to her husband every time she wanted to meet the appellant. In the said circumstances, when the victim herself was consenting to the extramarital relation and being filmed, it cannot be said that the offence under Section 354-C of IPC is made out.

6. Learned Sessions Judge further held that P.W.1 had asked the appellant to give her sleeping tablets so that she could give the same to her husband and thereafter meet him, as such, question of any forcible intercourse does not arise.

7. The learned public prosecutor submitted that the DVD’s marked as MO4 were discussed by the trial Court and found that Pw1 was being filmed without her consent as such offence under section 354C is made out.

Section 354-C of IPC reads as follows:

“354-C. Voyeurism:- Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectat