'Very Fact That Victim Used To Video Call Accused In Early Morning Shows Her Consent': Karnataka High Court Grants Bail To Rape Accused

Justice Shivashankar Amarannavar granted conditional bail to the accused Basanagouda @ Basavaraj, stating

"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 in the early morning between 4-5 a.m. shows her consent to the said act."

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. The accused was arrested by the Yelburga Police Station, for the offences under Sections 354C (Voyeurism), 506 (criminal intimidation), 376 (rape), 450 (house-trespass) of the Indian Penal Code and Section 67 (publishing or transmitting obscene material in electronic form) of the Information Technology Act, 2000.

Complaint by the victim:

The accused and victim, belonging to the same village, were in a consensual physical relationship before the latter got married to another man.

After her marriage, the petitioner-accused allegedly had sexual intercourse with the victim and used to make video calls to her between 4 and 5 a.m. early in the morning regularly, asking her to show her private parts and used capture the same in his mobile.

As the victim stopped calling the petitioner-accused for 15 days, he is stated to have sent the photos of the victim's private parts to her husband. Accordingly, a complaint was filed.

Petitioners Submissions:

The petitioner-accused submitted that he and the victim lady were in a love affair prior to her marriage and even after her marriage the relationship continued. It was pointed out that the victim is 25 years old and the sexual intercourse between them was consensual. Further, the very fact that the victim used to make video calls to the petitioner between 4-5 a.m. shows her consent, it was argued.

The prosecution opposed the plea on the grounds that the offence is heinous one. It was further submitted that charge sheet shows prima facie case against the petitioner and if he is granted bail he will threaten the complainant and tamper the prosecution witnesses.

Findings:

The court observed, "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."

Further, it said, "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 a video call to the petitioner. The very fact that the victim used to make a video call to the petitioner in the early morning between 4-5 a.m. shows her consent to the said act."

It cautiously added, "Whether the victim had given consent under the threat of the petitioner, is a matter of trial."

The court also observed that criminal antecedents of the petitioner and the offences alleged against the petitioner are not punishable with death of imprisonment for life, the offence alleged under Section 67 of I.T. Act is punishable with imprisonment for three years and fine of Rs.5.00 Lakhs.

Accordingly, it held that in the facts and circumstances of the case and the submission of the counsel, there are valid grounds for granting bail.

It granted bail on a personal bond for a sum of Rs.1 lakh with one surety for the like sum to the satisfaction of the jurisdictional Court.

The court directed that the petitioner shall not indulge in tampering the prosecution witnesses. He shall attend court on all the dates and cooperate in speedy disposal of the case.

Case Title: Basanagouda @ Basavaraj v. State of Karnataka | Criminal Petition No .102000/2021

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