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2024 Supreme(Online)(KAR) 19476
HIGH COURT OF KARNATAKA
MR JUSTICE SREENIVAS HARISH KUMAR, MR JUSTICE S RACHAIAH, JJ
STATE OF KARNATAKA – Appellant
Versus
KUSUMADHARA – Respondent
CRL.A 677/2018
Sri. M.V.Anoop Kumar, HCGP; Sri. V.S.Vinayaka, Adv.(Amicus Curiae); Sri. V.S.Vinayaka, Adv. for Sri. T. Hareesh Bhandary, Adv.
The court upheld the trial court's acquittal of serious charges due to lack of credible evidence while confirming the conviction for posting obscene materials under the Information Technology Act.
Headnote:(A) Indian Penal Code - Sections 376, 417, 506, 384, 511, 292(2)(a) - Information Technology Act - Section 67(A) - Accused acquitted of several charges but convicted under section 292(2)(a) and section 67(A) - The trial court found the testimony of the prosecutrix regarding rape untrustworthy but credible regarding the posting of obscene materials. (Paras 2, 3, 6, 8)
(B) Acquittal - The trial court's decision to acquit was based on lack of credible evidence for key allegations, including force and threats - The cross-examination revealed inconsistencies in the prosecutrix's claims. (Paras 6, 7)
(C) Sentencing - The trial court's discretion in sentencing was upheld, but the appellate court modified the penalties, affirming the conviction under the Information Technology Act only. (Paras 10, 11)
Facts of the case:
The accused was accused of multiple offences including rape and extortion but was acquitted of serious charges while being convicted for posting obscene materials online. (Paras 2, 3)
Findings of Court:
The trial court's finding of lack of credibility in the prosecutrix's account of rape was upheld, while the conviction for posting obscene materials was confirmed. (Paras 3, 6)
Issues: The main issues included the credibility of the prosecutrix's testimony regarding consent and the adequacy of the sentence imposed. (Paras 6, 8)
Ratio Decidendi: The court ruled that the evidence presented did not substantiate the claims of forcible intercourse, and the sentencing was to be confined to the more serious offence under the Information Technology Act. (Paras 10, 11)
Result: Criminal Appeal No.678/2018 is dismissed. Criminal Appeal No.677/2018 is dismissed, but the order on sentence is modified.
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.
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 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 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 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 a
