Very Fact That Victim Used To Video Call Accused In Early Morning Shows Her Consent: Karnataka HC

Coverage of this Article

1. Introduction
- While striking the right chord, we saw how just recently on November 19, 2021, the Dharwad Bench of Karnataka High Court

2. Section 439 of The Code of Criminal Procedure, 1973

3. ORDER
- The petition filed under Section 439 of Cr.P.C. is allowed.

While striking the right chord, we saw how just recently on November 19, 2021, the Dharwad Bench of Karnataka High Court in a learned, laudable, landmark and latest judgment titled Basanagouda @ Basavaraj v State of Karnataka in Criminal Petition No. 102000/2021 has granted bail to a rape accused noting that the victim, a married woman herself, used to make video calls to the accused early in the morning, when the accused had allegedly taken screenshots of her private parts. It must be apprised here that Hon’ble Mr Justice Shivshankar Amarannavar while granting conditional bail to the accused stating that, "The victim was using the mobile phone of her husband to make a video call to the petitioner. The very fact that the victim used to make a video call to the petitioner between 4-5 a.m. shows her consent to the said act." It must be mentioned here that the accused had approached the High Court after his bail application was rejected by the Principal District and Sessions Judge, Koppal, by order dated 07.08.2021.

To start with, the ball is set rolling in para 1 of this brief, brilliant, bold and balanced judgment authored by a single Judge Bench of Hon’ble Mr Justice Shivashankar Amarannavar of Dharwad Bench of Karnataka High Court wherein it is put forth that, "This petition is filed by the sole accused under Section 439 of The Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Cr.P.C.’, for brevity) seeking bail in Crime No.29/2021 o f Yelburga Police Station, registered for the offences punishable under Sections 354C, 506, 376, 450 of The Indian Penal Code (hereinafter referred to as the ‘IPC’, for brevity) and Section 67 of the Information Technology Act, 2000 (hereinafter referred to as ‘I.T. Act’, for brevity)."

To put things in perspective, the Bench then envisages in para 2 that, "The case of the prosecution is that the victim lady has filed a complaint stating that she and the petitioner were from the same village and they are relatives and both fell in love. On 03.12.2018 the petitioner committed sexual intercourse on the complainant in the agriculture field and the petitioner told to the complainant that he will marry her and he will maintain her. Later on again 4-5 times the petitioner went to her house and the land near to her house and had sexual intercourse with her. Apart from it, petitioner took photos of private part of the victim. Later on, the parents of the complainant performed her marriage with another person i.e. CW.5. Thereafter she begot a child. After that the petitioner again had sexual intercourse with the victim and he used to make video calls to her between 4 and 5 a.m. early in the morning regularly and asking her to show her private part and used capture the same in his mobile. As the victim stopped calling the petitioner for 15 days the petitioner sent the photos taken through video call to the husband of victim, thereafter the victim has been sent by her husband to her parents’ house on 05.04.2021 on the date on which he received the photos on his mobile. On the next day victim filed the complaint. The complaint came to be registered in Crime No.29/2021 for the offences referred above. The petitioner came to be arrested on 07.04.2021 and he was remanded to judicial custody. The petitioner filed Crl. Misc. No.245/2021 seeking bail and the same came to be rejected by the Principal District and Sessions Judge Koppal, by order dated 07.08.2021. Therefore, the petitioner is before this Court seeking bail."

Needless to state, the Bench then states in para 3 that, "Heard learned counsel appearing for the petitioner and the learned High Court Government Pleader for the respondent-State."

On the one hand, the Bench then succinctly points out in para 4 that, "It would be the contention of the learned counsel for petitioner that the petitioner and the victim lady were in love affair prior to her marriage with CW.5 and even after marriage the relationship of the petitioner and the victim continued. He submits that the victim is 25 years old and the sexual intercourse between the petitioner and the victim was consensual. He further submits that the very fact that the victim used to make video call to the petitioner in between 4-5 a.m. shows her consent. It is his further submission that the offence alleged against the petitioner is not punishable with death or imprisonment for life and since the charge sheet is filed petitioner is not required for custodial interrogation. With this, he prayed for allowing the petition."

On the other hand, the Bench then enunciates in para 5 that, "Per contra, learned High Court Government Pleader for the respondent-State contended that the offences alleged against the petitioner is heinous offence. He submits that the petitioner sent photos o f the physical acts of petitioner and the victim to the mobile phone of her husband. The mobile phone of her husband has been seized. It is his further submission that charge sheet shows prima facie case against the petitioner and if the petitioner is granted bail he will threatened the complainant and tamper the prosecution witnesses. With this, he prayed to dismiss the petition."

As we see, the Bench then brings out in para 6 that, "Having regard to the submission made by the learned counsel for the petitioner and the learned High Court Government Pleader for respondent-State, this Court has gone through the charge sheet records."

Most essentially, what makes the picture completely clear and which forms the cornerstone also of this learned judgment is then stated most unequivocally in para 7 of this notable judgment wherein it is held that, "On looking to the averments made in the complaint by the victim lady, there was a love affair between the petitioner and the victim prior to her marriage with CW5 and they had consensual sexual intercourse in the land several times. Even after marriage the said relationship between the petitioner and the victim continued. It is alleged that the petitioner used to take screenshots when the victim was showing her private parts through video call. The victim was using the mobile phone of her husband to make video call to the petitioner. The very fact that the victim used to make video call to the petitioner in the early morning between 4-5 a.m. shows her consent to the said act. Petitioner had sent the said photos to the mobile phone of the husband of the victim, who saw the same on 05.04.2021 and sent the victim to her parents’ house. The offences alleged against the petitioner are not punishable with the death of imprisonment for life, but the offence alleged under Section 67 of I.T. Act is punishable with imprisonment for three years and fine of Rs.5.00 Lakhs. Further, whether the victim had given consent under the threat of the petitioner, is a matter of trial. There are no criminal antecedents of the petitioner. The main objection of the prosecution is that in the event of granting bail, the petitioner is likely to cause a threat to the complainant and other prosecution witnesses. The said objection may be met with by imposing stringent conditions."

Finally, the Bench then concludes by holding in the final para 8 that, "In the facts and circumstances of the case and the submission of the counsel, this Court is of the view that there are valid grounds for granting bail subject to certain terms and conditions. Hence, I proceed to pass the following:

ORDER

The petition filed under Section 439 o f Cr.P.C. is allowed. Consequently, the petitioner shall be released on bail in Crime No.29/2021 of respondent Police Station subject to the following conditions:

1. Petitioner shall execute a personal bond for a sum of Rs.1,00,000/- (Rupees One Lakh Only) with one surety for the like sum to the satisfaction of the jurisdictional Court.
2. Petitioner shall not indulge in tampering the prosecution witnesses.
3. Petitioner shall attend the Court on all the dates of hearing unless exempted and co-operate in speedy disposal o f the case.
4. Petitioner shall not visit Guledgudda, Taluk Badami, District Bagalkot till disposal of the case."

All in all, this commendable, cogent, composed, concise and convincing judgment by a single Judge Bench comprising of Hon’ble Mr Justice Shivashankar Amarannavar of Dharwad Bench of Karnataka High Court very rightly grants bail to the rape accused as the victim who is a married woman herself used to make video calls early in the morning between 4-5 am herself to the rape accused which shows her consent to the said act. The Bench was also mindful of the irrefutable fact that there are no criminal antecedents of the petitioner. So as a corollary, we thus see that the single Judge Bench of Justice Shivashankar Amarannavar finds nothing wrong in granting bail to the petitioner. So accordingly the bail is thus very rightly granted to the petitioner. No denying it!