Bangalore District Court
Unknown vs J. Jerold @ Jerry on 26 September, 2016
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 26th DAY OF SEPTEMBER 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 39/2015
COMPLAINANT :
The State of Karnataka by
Byappanahalli Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
1. J. Jerold @ Jerry,
S/o. John,
Aged about 19 years,
R/a. No.151/1, Church Street,
New Thippasandra,
Bangalore.
[Reptd by Sri K. Narayanaswamy &
Associates- Advs]
***
2 Spl.C.C.39/15
JUDGMENT
Byappanahalli Police, Bangalore City have charge sheeted the accused for offences punishable under Sections 366, 376 of I.P.C and under Section 5 and 6 of Protection of Children from Sexual Offence Act, 2012.
2. The case of the prosecution, in brief, is as under :
CW-2 is the child of PW-4. The accused with intent to marry her had kidnapped her on 12.10.2014 at about 5.00 p.m from her house in the presence of CW-1. He along with juvenile Raghu kidnapped her and he took her to Hosur, thereafter to Chennai. By promising to marry her he had physical relationship with her, they stayed in the house of his friend at Chennai, thereafter they married in Church at Chennai, thereafter they came back to Hosur. When they were waiting for the bus to come to Bangalore on 15.10.2014 at about 3.45 p.m. in Hosur Bus stop CW-9 Kanthamma WPC and other staff apprehended her, accused No.1 and 2 escaped. She
3 Spl.C.C.39/15 was brought to Police Station. In the meanwhile, on 12.10.2014 CW-1 had lodged a complaint against accused. The case was registered by that time. Accused was apprehended, he drew necessary mahazars. Victim and accused were sent to hospital for medical examination. He had recorded the statement of the other prosecution witnesses. By completing investigation, he submitted charge sheet to the Court for the aforesaid offences.
3. The charge sheet was submitted to 50th A.C.C. & S.J Court. Cognizance was taken and registered in Special C. C. On the point of jurisdiction after allocation of the work the case has been transferred to this court. Then learned Presiding Officer after hearing both sides had framed charge for offences punishable under Sections 363, 366-A, 376 of I.P.C and Section 5(l) r/w Section 6 of Protection of Children from Sexual Offence Act, 2012. The same was read over to the accused. He pleaded not guilty and claimed to be tried. Hence, posted for prosecution evidence.
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4. On prosecution side got examined as many as 8 witnesses as P.W.1 to P.W.8 out of 16 charge sheet witnesses and got marked the documents at Ex.P.1 to Ex.P.6. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments on both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under:
1) Whether the prosecution has proved beyond reasonable doubt that accused had kidnapped CW-2, the child of CW-1 on 12.10.2014 at 5.00 p.m., from her house, by keeping away from lawful custody of her parents, without their consent, punishable under Section 363 of I.P.C?
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2) Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place he had kidnapped CW-2 with intent to marry her against her will, punishable under Section 366-A of I.P.C?
3) Whether the prosecution has proved beyond reasonable doubt that after kidnapping CW-2 on the aforesaid date, time and place he took her to Hosur and Chennai and kept her till 15.10.2014 during which period he had committed rape on her, punishable under Section 376 of I.P.C?
4) Whether the prosecution has proved beyond reasonable doubt that after kidnapping CW-2 on the aforesaid date, time and place he had committed penetrative sexual assault on her by promising to marry, punishable under Section 5(l) r/w Section 6 of Protection of Children from Sexual Offence Act, 2012?
5) What order?
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7. My findings on the above points are as under:-
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : In the negative
Point No.4 : In the negative
Point No.5 : As per final orders for the
following
REASONS
8. Point No.1 and 2 :- Point Nos.1 and 2 are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
9. The accused is alleged to have had kidnapped PW-6 the child who was under the age of 18 years on 12.10.2014 at 7.00 pm., from nearby her house no.231, 3rd Cross, M playa on two wheeler, with intent to marry against her will. According to prosecution she was of 16 years as on the date. In view of Section 2(1)(d) of the Act "child" means any person who is under the age of 18 years. The charge against accused is under Section 363 and 366-A of I.P.C. The first charge is that 7 Spl.C.C.39/15 he had taken away the victim girl by keeping out of lawful custody of her parents without their consent and with intent to marry against her will of which falls within the purview of Section 366 of I.P.C. Section 366 of I.P.C. applies in case of minor as well as major child. Since first charge is under Section 363 of I.P.C the age of the victim girl shall have to be determined at the first instance.
10. PW-4 Tangajayam is the complainant and mother of the victim girl. She had lodged a complaint as per Ex.P1 on 12.10.2014 alleging that accused and his friends had kidnapped PW-6 the victim girl. In that complaint she mentioned the age of PW-6 as 16 years. Admittedly no document was annexed to the complaint at that time. Even at the time of trial there is no authenticated document got marked on prosecution side to establish the age of PW-6 under 18 years as on the date of alleged incident. As per prosecution she was studying in I PUC. Irrespective of it the burden is on the prosecution to prove her age below 18 years. Ofcourse in the absence of birth 8 Spl.C.C.39/15 certificate or any certificate equivalent to that, the medical report certifying the age of the victim can be looked into. On this point I have relied upon (2013) 14 SCC 637 (Mahadeo S/o Kerba Maske Vs. State of Maharashtra and another), it has held that:
"Penal Code, 1860 - Ss. 376 and 363 -
Kidnapping and rape - Age of prosecutrix/victim - Determinatin of - Yardstick for - Certificates of age from schools or Local Authorities Vis-à-vis medical evidence - Held, statutory provision in Juvenile Justice (Care and Protection of Children) Rules, 2007, R.12(3) is also applicable to determine age of young prosecutrix/victim - Hence, it should be determined by matriculation or equivalent certificates or date of birth certificates from school first attended or birth certificate by Corporation/Municipal authority or Panchayat and only in absence of such documents medical opinion can be sought for - Therefore, reliance placed upon school certificates to arrive at age of prosecutrix to be below 18 years was perfectly justified - Juvenile Justice (Care and Protection of Children) Rules, 2007 - R.12(3) - Procedure for determination of age of juveniles - Application of, for determination of age of victim/prosecutrix - Criminal Trial - Medical Jurisprudence/Evidence - Age - Juvenile/Child victim - Proof of age - Valid evidence".
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11. In the present case no document is placed on prosecution side with respect to the age of PW-6 the victim. There is medical report only on prosecution side and that can be based to determine her age. Ex.P5 is the medical report issued by Dr. B.M. Nagaraj who subjected her to medical examination, at the same time he certified her age from 16 to 17 years. He has come to the conclusion based on physical development and dental tests. There is no ossification test conducted. The learned counsel for the accused has vehemently argued that the date of birth 5.5.1998 given by the prosecution is not correct date of birth, victim girl has already attained the age of majority, there is no proof to prove her age was under 18 years as on the date.
12. Though Ex.P5 is taken to be based to determine the age of the victim, the said opinion has been given only based on the physical development and dental tests and opined that her age is from 16 to 17 years. Under the circumstance, it is very difficult to base on this Ex.P5 to say that she was under
10 Spl.C.C.39/15 the age of 18 years. In the absence of any authenticity the opinion cannot be formed that she was under 18 years, even it could be above 18 years. Apart from that there is nothing found in the evidence of PW-4, mother of prosecutrix with respect to age of the victim girl. Under the circumstance, prosecution has failed to prove that her age was under 18 years as on the date of occurrence.
13. Now the question arises whether accused had committed the crime under Section 363 as well as 366 of I.P.C. I have already discussed in supra since there is a charge under Section 363, age of the victim plays an important role. When there is no proof on the part of the prosecution that she was under 18 years, there is no question of keeping away the minor out of her lawful custody of her parents. Therefore, Section 363 of I.P.C. is not attracted here. The accused cannot be convicted for offence under Section 363 of I.P.C.
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14. It is the specific case of the prosecution that accused Jerald along with juvenile Raghu had forcibly taken away PW-6 the victim girl on two wheeler when she was with her mother and sister sitting in front of her house, he had the intention of marrying her forcibly. Charge is under Section 366-A I.P.C, but substance of charge under 2nd head attracts Section 366 of I.P.C., hence it does not mislead the accused. There is specifically noted in 2nd head that he had kidnapped victim girl. Hence, keeping in view that if I go through Section 366 of I.P.C, it consists of two parts, one is compelling to marry any person against her will and another is forced or seduced her to illicit intercourse. According to allegation made in the complaint she was forcibly taken away by accused along with juvenile to marry PW-6 against her will. With this background on going through the oral testimony of the material witnesses and the complaint wherein made allegations against the accused the truth can be found out. In order to prove its case the prosecution has got examined as many as 8 witnesses. PW-4 the complainant and mother of the victim, PW-6 the 12 Spl.C.C.39/15 victim girl, PW-5 Mary, senior aunt of victim girl, PW-1 Kanthamma who apprehended the victim and PW-3 Krishna Murthy who registered the case and also PW-8 Dr. B.M.Nagaraj are the material witnesses in the present case on this point.
15. According to prosecution accused used to follow the victim girl while she was going to the college, on being learnt her parents had gone to the house of the accused, advised him not to do so, even otherwise he had not stopped. On 12.10.2014 at about 7 pm while PW-6 along with her mother and sister was sitting in front of her house as it was Sunday, accused along with juvenile came there and called her, PW-4 scolded him to go, after 5 minutes again they came back and dragged her and took her on two wheeler. On the same day at 10.30 p.m., she had lodged a complaint as per Ex.P4. On 15.10.2014 PW-1 Kanthamma, WPC along with other staff had seen the victim girl with accused No.1 and juvenile Raghu in the Hosur bus stop, she took the custody of the victim girl, accused and the juvenile escaped, she produced the victim girl 13 Spl.C.C.39/15 before investigating officer. Thereafter PW-4 was called to the police station, on enquiry PW-6 revealed that she was taken by him with intention to marry her against her will, he had sex with her and he got married at Chennai. This is the case of the prosecution.
16. The part evidence of PW-4, the complainant and the oral testimony of PW-6 coupled with Ex.P1 the complaint is read together, their testimony are suffering from infirmity and material contradictions of which suspects the case of the prosecution itself. Ofcourse PW-1 Kanthamma has stated that she found victim girl with accused in Hosur bus stop along with juvenile Raghu. That itself does not prove the offence under Section 366 of I.P.C or 366-A of I.P.C. Firstly, there is no proof that prosecutrix was under 18 years. Therefore, whether accused had enticing away the victim girl or she joined the accused at her will with intention to marry him shall have to be looked into.
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17. Ex.P1 is the complaint of which would speak that when PW-4 along with her two daughters was sitting in front of her house, 3 persons came there, said that accused Jerald was calling her, PW-4 scolded, they went off. Then again after 5 minutes those three persons came back and dragged the victim girl outside where accused Jerald and juvenile were standing with the scooter, they made her sit on two wheeler, PW-4 made an attempt to take back the victim girl, then one person had shown knife, threatened to kill her, hence she stepped back in fear, they all took away the victim girl, went in two scooters. According to prosecution PW-4 has subsequently given further statement on 16.10.2014 i.e., after tracing the victim girl on 15.10.2014. It is pertinent to note she is the hearsay witness to the charge of Section 376 of I.P.C. and Section 5(l) r/w Section 6 of POSCO Act, but she is an eyewitness to the offence alleged to have been committed by him under Section 366 of I.P.C. She had given the further statement on 15.10.2014 by changing her version from the complaint, she has further stated that persons had not come to 15 Spl.C.C.39/15 her house and had not shown the knife giving threat to her, but it is accused along with juvenile Raghu had come nearby her house and called victim girl, then she scolded them, again within no time they came back and accused No.1 stated that he wanted to talk to PW-6 and forcibly took away. So, the contents of Ex.P1 so far as concerned to the presence of three other persons and threat alleged to have been given is not a true fact, it is only accused with juvenile had come to her house to take away victim girl. Here two versions are found, one is as in Ex.P1 and another is as in her further statement dated 16.10.2014 mentioned in supra. In the backdrop of the oral testimony of PW-4 and the allegations made in Ex.P1, the oral testimony of PW-6 is read together it would give a different picture.
18. As per prosecution PW-6 victim girl had given complaint by way of statement as per Ex.P4 on 15.10.2014 i.e., after she was brought to the police station by PW-1 Kanthamma, WPC. According to her statement in Ex.P4 16 Spl.C.C.39/15 accused is not stranger to her, he is her brother's friend, since one year she knew him, he forced her to love him, when she informed the matter to her parents in the month of September 2014 her parents had gone to his house and advised him not to repeat. Bearing this first part of her statement in Ex.P4, her oral testimony before the court is read together with Ex.P4, the statement on oath before the court stands at another end. In the chief-examination itself she has stated since 3 years she knew the accused, he proposed her to love him, at the first instance she refused, but later started loving him. She used to go with accused from the college, on coming to know that she was not attending the college regularly, her parents warned her not to accompany the accused, even they made her stop even to go out of the house. Then she contacted the accused on mobile by sending the message that her parents were not sending her even to the college and prevented her to go out of the house. This portion of her testimony in the chief-examination itself shows the intimacy developed towards accused. Statement at Ex.P4 would 17 Spl.C.C.39/15 show one version. The aforesaid chief-examination of PW-6 is another version. The complaint at Ex.P1 gives entirely different picture from Ex.P4 and the first part of chief-examination of PW-6. Even the further statement of Pw-4 is also entirely different from the aforesaid all the versions. Thus, the evidence of PW-4 and 6 are suffering from material contradictions of which go to root of the case of the prosecution. Under the circumstance, the evidence of Pw-6 and PW-4 shall have to be scrutinized with utmost care to come to the just conclusion.
19. There is no allegation that accused gave threat to PW-6 and took her. Ofcourse as per Ex.P1, PW-4 made the said allegation in the complaint, subsequently she has resiled from that version while giving further statement on 16.10.2014. But, nowhere, it is found either in Ex.P4 or in first part of the chief-examination of PW-6 with respect to the threat given by the accused.
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20. Later part of chief-examination of PW-6 found at Ex.P2 is gone through, it is not her say that she had given threat to her or induced her that he would marry and on that pretext he had taken away. Ofcourse, she has stated that one of his friends showed knife towards her then she went with the accused. This is not at all the case of the prosecution that there was threaten by the accused. I have already discussed in supra the appearance of three persons in the first scene has been ruled out by further statement of PW-4. She herself gave statement contrary to Ex.P1 there were no persons other than accused and juvenile. But, even Ex.P4 the complaint by way of statement given by PW-6 does not depict the appearance of 3 persons other than the accused and juvenile. Therefore, her say in the later part of the chief-examination one of his friend shows the knife hence, she went with the accused, is far away from the truth.
21. The other circumstance would rule out that there was force in taking her or even in marring the victim girl. In the 19 Spl.C.C.39/15 cross-examination suggestion has been made by the learned counsel for the accused after accused Jerald took her from her house whether she made attempt to contact her parents over phone, she said 'No'. Apart from that it is not the case of the prosecution that PW-6 protested anywhere after she was taken by accused on two wheeler. As per the case of the prosecution she was taken by accused Jerald and juvenile Raghu on two wheeler. For the reason PW-4 has given contradictory statement that PW-6 was dragged by accused and made her sit on two wheeler, the inference cannot safely be drawn PW-6 was forcibly taken away by the accused. The totality of the circumstance and the whole evidence of PW-4 and 6 shall have to be gone through with sensitivity to find out was there any compulsion in taking away the victim girl and in marrying her against her will and without her consent. Except later part of her chief-examination wherein she said that one of his friend shows knife then she went with the accused, there is no other materials forthcoming in her whole evidence to support. The case of the prosecution is that accused enticed away on the 20 Spl.C.C.39/15 pretext of marrying her. From the oral evidence of PW-6 it becomes very clear that she knew accused since several years, the intimacy developed between themselves. Even her statement in Ex.P4 would show that she had the intention of joining the accused. In the second para of Ex.P4 she has stated that when she along with her mother and sister was sitting outside the house, accused and his friend came near the house, Jerald called her, at the time her mother said 'to go', after five minutes again they came near their house, again they called her, but her mother was there, she avoided her to go with him. These words used by her in her narration at Ex.P4 would disclose that there was no compulsion in joining the accused, she was willing to accompany him. Her further version in Ex.P4 "after both Jerald and juvenile Raghu took her on their motorcycle, went to Hosur and she went on narrating the further incident i.e., staying in the relative's house of juvenile. On going through the whole narration made in Ex.P4 would not show that she had been enticed away by the accused. Taking away or inducing is the essential ingredient 21 Spl.C.C.39/15 of Section 366 of I.P.C. For the reason Pw-4 has stated that she was forcibly taken, accused cannot be convicted for alleged charge of kidnapping. Either under Section 366/366-A of I.P.C The cumulative effect of oral version of the PW-4 and the oral testimony of PW-6 shall have to be evaluated. Based on the contradictory statement of PW-4 accused cannot be held guilty for alleged offence of kidnapping.
22. According to the case of the prosecution the victim girl was alleged to have been taken away on two wheeler. It is not the case of the prosecution that threat was given either by accused or his associate to the victim girl while taking her. That itself indicates that victim girl was willing to join the accused. In view of her oral testimony as discussed in supra she herself contacted accused over phone complaining against her parents that they were not allowing her to go to the college and even to come out of the house. This circumstance also would show that victim girl at her own joined the company of accused Jerald. Nowhere, it is found on record that she raised 22 Spl.C.C.39/15 the alarm drawing the attention of the publics while she was taken by accused Jerald from the point of her house till the point of Hosur bus stop from where she was taken to custody by Pw-1 Kanthamma, WPC. Even she did not make any attempt either to seek help from the public or to escape from the accused and even at the time of marriage she did not protest. Even nowhere it is forthcoming that accused married her against her will and without her consent. There is difference between 'against her will' and 'without the consent'. But, no materials are brought by the prosecution to show that accused married her against her will and he compelled her to marry him. Therefore, it does not attract Section 366 or 366-A of I.P.C. For the reason accused Jerald and juvenile Raghu escaped from the Hosur bus stop when they were with victim girl does not lead to draw the inference that victim girl was enticed away with intention to marry against her will and without her consent. According to prosecution they stayed in different houses, firstly in the house of the uncle of juvenile, then in the house of grandfather of juvenile, thereafter in the 23 Spl.C.C.39/15 house of friend of accused Jerald at Chennai. She had the sufficient opportunity to seek the help or to make an attempt to be away from the accused. Viewed from any angle, ingredients of Section 366 or 366-A are not established by the prosecution beyond reasonable doubt. The evidence of PW-4 and even oral evidence of PW-6 are suffering from material contradictions of which cannot be based to convict the accused with alleged charge of kidnapping.
23. PW-5 Mery is another witness examined on prosecution side. According to prosecution she had seen taking away the victim girl by the accused. But that is not referred to either in the complaint or in statement at Ex.P4 by PW-6 or in further statement of PW-4 mother of the victim. Her evidence does not prove the case of the prosecution. The prosecution has failed to prove the charge of kidnapping or even the offence under Section 363 of I.P.C. The benefit of doubt should to the accused. Hence, I hold point Nos. 1 and 2 in the negative.
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24. Point Nos.3 & 4: The prosecution has made allegation against accused that he had committed rape on her when they stayed in the house of his friend at Chennai. On the night of 12.10.2014 they stayed in the house of uncle of juvenile, thereafter they stayed in the house of grand father of juvenile on 13.10.2014, on that night itself they left for Chennai and stayed in the house of friend of accused No.1 at Chennai where accused No.1 had committed rape, they got married at Church at Chennai. They wanted to come back to Bangalore, they were in Hosur bus stop at 3.45 p.m. on 15.10.2014, then they were seen by the police, PW-1 took victim girl to her custody, juvenile and accused no.1 escaped. On next day accused Jerald was apprehended. Victim girl and accused were sent to hospital for medical examination. As per doctor's opinion her hymen is not intact and found some injuries on her body and one injury on body of accused Jerald. Therefore, the charge sheet has been filed for offence of rape under Section 376 of I.P.C and also under Section 5 and 6 of Protection of 25 Spl.C.C.39/15 Children from Sexual Offence Act, 2012. This is the theory of the prosecution so far as concerned to offence of rape.
25. In the cases like this nature, the oral testimony of the victim girl plays vital role. There is no eyewitness to the offence of rape. As per prosecution it was committed within four wall i.e., in the house of friend of accused No.1 in Chennai. It is another version of prosecutrix that they stayed in a room of one lodge at Chennai, there he had committed rape on her. It is pertinent to note the evidence of prosecutrix and the medical evidence are to be seen on this point.
26. PW-8 Dr. B.M. Nagaraj had subjected PW-6 victim girl for medical examination on 15.10.2014 and issued medical report mentioning that some injuries are found on her body. According to prosecution he had also examined the accused and found one injury on his arm and issued medical report as per Ex.P6.
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27. PW-8 opined that within 2 to 3 days she is used to an act like that of sexual intercourse. In Ex.P6 opined that there is nothing to suggest that accused is incapable of performing sexual intercourse. He has also stated that Lugol's Iodine test is positive. According to prosecution medical evidence is in favour of prosecution as hymen is recently torn, there are some injuries found on her body aged about 2 to 3 days. It is pertinent to note as per his oral evidence corresponding to Ex.P5 victim girl had given voluntary statement that accused took her on 12.10.2014 at 7.00 p.m. and promised her to marry and he had physical relationship with her. As per voluntary statement given by victim before him there is absence of force, on the pretext of marrying her he had sex with the prosecutrix. Whether she had given consent under misconception of fact or not is another crucial point to be looked into, but nowhere, it is forthcoming in her evidence on this aspect to come to the conclusion that under that belief only she had given the consent.
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28. At the first instance, whether they had the physical relationship or not is the first and foremost point. Ofcourse, from the medical evidence and oral testimony of the victim girl it is found that they had physical relationship. But now the question arises whether it amounts to rape or not.
29. I have already discussed in supra, that there is no proof to show that she was under 18 years as on the date of incident. There are also no materials on record that she had been forcibly taken by the accused and she had been induced. On this point the evidence of victim girl and PW-4 the complainant is very material.
30. The prosecution has to prove the evidence of rape beyond reasonable doubt. The court must act with sensitivity and evidence in totality of the background of entire case, not in isolation. Ex.P4 is the complaint by way of statement given by the victim girl after she was traced by the police. Nowhere, it is found in Ex.P4 that the physical relationship that they 28 Spl.C.C.39/15 had at Chennai is against her will. Ex.P4 does not disclose the force committed by the accused. Even it does not reveal that she protested or raise alarm, nobody responded to her hue and cry. This is not at all the case of the prosecution that the physical relationship what they had is not by consent. In Ex.P4 she specifically stated that they left Annachetty for Chennai, where they stayed in the house of friend of the accused Jerald, then they had sexual intercourse and they had married in Church at Chennai and they left on the same day, they came back to Hosur. There is no indication in Ex.P4 that she was used by the accused to have the sexual intercourse without her consent. As already mentioned in supra, even as per voluntary statement of the victim girl before PW-8 found in Ex.P5, it is not forceful act. Even as per voluntary statement said to have been given by the accused in Ex.P6 he had the intention of marrying her, with her consent he had sex with her. Nowhere it is forthcoming that victim girl was compelled to have the physical relationship. There is no material to show that she protested. Even there is absence of 29 Spl.C.C.39/15 reluctancy by the victim girl in having the sex with accused. With this background her oral testimony is read in its entirety, it also does not prove that it was against her wish and will. At page No.2 of her chief-examination found the version that she and accused No.1 had gone to Chennai, both of them got married in Church at Chennai, accused had physical contact with her in a room at lodge in Chennai. This portion of her evidence does not reveal the physical contact between them is without her consent. It is pertinent to note her further statement found in page No.4 would show another story. She has stated in her chief-examination at page No.2 as under:-
"In the morning Jerald friend received a phone call from police and police said that parents of the girl accepted and you come back. We believed that, and myself and Jerald came back to Bangalore on 15.10.2014. Police were near Hosur bus stand and took us to Police Station. I refused to go with my parents, so police sent me to Child Welfare Committee. Police forced me to give complaint in writing, I
30 Spl.C.C.39/15 did not write any complaint, but signed the complaint written by the police. Document now shown to me bears my signature. This complaint dated 15.10.2014 is marked at Ex.P4".
From aforesaid portion of her evidence it becomes very clear that she joined the accused on her will only, after they went to Chennai, they were trapped by the police by stating that parents of the victim accepted and wanted them to come back. Believing their version they came back to Hosur bus stand, on receiving this information from accused and the victim girl the police waited for them in Hosur bus stand, not for any other reason. So this circumstance also would speak the sex that they had is consensual act not against her will. When the police took her to the custody and brought her to the police station and called her parents to the police station she revealed that they were trapped by the police. Therefore, she refused to go with her parents, then the police sent her to Child Welfare Committee. She has gone to the extent of stating that 31 Spl.C.C.39/15 the police forced her to give complaint in writing, she did not write the complaint, but they took her signature to Ex.P4 the complaint. I have already discussed in supra at length that it is not at all the case of the prosecution that there was a criminal intimidation committed by the accused at any point of time since from the time of leaving the house of the victim girl and till they were apprehended on 15.10.2014. But, in complaint at Ex.P4 mentioned that the friend of accused had shown the knife and forcibly took her from her house. The charge is not for offence under Section 506 of I.P.C. But, the case of the prosecution is very much contradictory stage by stage, likewise even the oral testimony of PW-4 mother of the victim girl is also inconsistent to existing facts. The oral testimony of the victim girl is completely different from the case of the prosecution. According to her version she has not at all given written complaint as per Ex.P4. From her testimony found in the chief examination and also according to her version accused is not stranger to her, they were in love, she joined the accused and they had consensual physical relationship, they got married.
32 Spl.C.C.39/15 Under these circumstances, the oral testimony of PW-4 who is hearsay witness cannot be based to hold that it amounts to offence of rape.
31. PW-6 has clearly stated in her cross-examination led on defence side that accused is known to her since 3 years. There was no abuse or ill-treatment by him during the said period, he is a good friend of her and he used to come to her house and her parents also were willing to perform her marriage with accused. In later part of her cross-examination she has stated that there was a quarrel between parents of accused and her parents. Ofcourse, another version of PW-6 found in her cross-examination it is false to state that she voluntarily went with accused, accused forced her twice she left. It is pertinent to note whether she joined the accused at her own will or not has to be evaluated from reading of the evidence in its totality. The given facts and circumstance, found on record make it crystal clear the physical relationship that they had is not forceful act. The injuries found on the 33 Spl.C.C.39/15 body is disproved by her evidence, for the reason that it is not her version that sexual act is against her will or it was done by putting her in fear or coercion or even against her will. Ofcourse, she has given some contradictory statement, of which is not at all the case of the prosecution. But, because of that stray statement the other part of her evidence cannot be discarded.
32. During the course of arguments the learned counsel for the accused has submitted that accused and the victim girl are husband and wife and they have been residing together, that is why she refused to go with her parents from the police station and she was kept in Child Welfare Committee. Irrespective of his submission as per materials found on record, the offence of rape is not proved. There must be proper, legal evidence and materials on record to draw the conviction against the accused. In case of rape the onus is always on the prosecution to prove the affirmatively the each ingredient of the offence. Unless the offence of rape is established beyond 34 Spl.C.C.39/15 reasonable doubt on the basis of legal evidence and material on record he cannot be convicted for the same. The charge against the accused is under Section 376 of I.P.C. as well as under Section 5(l) r/w Section 6 of Protection of Children from Sexual Offence Act, 2012. Section 5 of the POSCO Act provides if victim girl under age of 18 years is repeatedly subjected to sexual intercourse, it amounts an offence. Points No.3 and 4 are one and the same. The third charge is under Section 376 of I.P.C. The fourth charge is under Section 5(l) r/w Section 6 of POSCO Act. There is no evidence brought on record that the victim girl had been used repeatedly for sexual intercourse. Even so far as concerned to the physical relationship, once they had but it is by consent not against her will. There is absence of force in that act. That could be gathered from the conduct of the victim girl and also that could be inferred from her oral testimony.
33. Section 29 of the POSCO Act is available to the prosecution only when the victim girl is under the age of 18 35 Spl.C.C.39/15 years. Now there is no proof on this aspect. Apart from that though the presumption is in favour of the prosecution, it can be rebutted by referring the prosecution evidence. However, it does not discharge the prosecution of its duty to first establish and prove the facts, the existence of which only can lead to drawing of any such satisfactory or legal presumption by use of the expression. Here the prosecution has failed to place reliable, convincing, corroborative and satisfactory evidence to attract Section 5(l) r/w Section 5 of POSCO Act as well as Section 376 of I.P.C. As already mentioned in supra the presumption is not available to the prosecution. Therefore, there is no question of rebutting the said presumption.
34. PW-7 Sathish is the spot panch. He has spoken to drawing of mahazar at Ex.P2 in the place of alleged kidnapping. PW-5 Mery is hearsay witness. She is the senior aunt of the victim girl. PW-2 Lakshminarayana is the police constable who apprehended the accused. PW-3 Krishnamurthy, Head Constable registered the case on receiving complaint at Ex.P1 36 Spl.C.C.39/15 and P4. I have already discussed above the existing fact, the allegation made by the prosecution and oral testimony of material witnesses and the inconsistency in the evidence of PW-4 and also PW-6. Under these circumstances, the prosecution has failed to prove its case beyond reasonable doubt. The offence of rape is not proved. Though there are other witnesses examined on prosecution side their evidence does not prove the case of the prosecution beyond doubt. Under these circumstances, the prosecution has failed to prove its case beyond reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold points No.3 and 4 in the negative.
35. Point No.5 : In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for offences punishable under Section 363, 366-A and 376 of I.P.C and Sec. 5(l) r/w 37 Spl.C.C.39/15 Sec.6 of Protection of Children from Sexual Offence Act, 2012.
Award of compensation as in Section 7(2) of POSCO Act, to PW-6 the prosecutrix is hereby recommended to District Legal Services Authority, Bangalore Urban. Submit the copy of the F.I.R., complaint, charge sheet and last day order sheet to D.L.S.A. (Dictated to the Stenographer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 26th day of September, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
PW.1 Kanthamma
PW.2 Lakshminarayana
PW.3 Krishna Murthy
PW.4 Thangajayam
PW.5 Marry
PW.6 Victim
PW.7 Sathish
38 Spl.C.C.39/15
PW.8 Dr. B.M. Nagaraj
LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Complaint Ex.P 1(a) Signature of PW-1 Ex.P 1(b) Signature of PW-3 Ex.P 2 F.I.R Ex.P 3 Mahazar Ex.P 3(a) Signature of PW-4 Ex.P 3(b) Signature of PW-7 Ex.P 4 Statement of victim Ex.P 4(a) Signature of victim Ex.P 5 Medical report of victim Ex.P 5(a) Signature of victim Ex.P 5(b) Signature of victim Ex.P 5(c) Signature of PW-8 Ex.P 6 Medical report of accused Ex.P 6(a) Signature of PW-8 Ex.P 6(b) Cytology report LIST OF MATERIAL OBJECTS MARKED
- NIL -
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
39 Spl.C.C.39/15 *** 40 Spl.C.C.39/15 26.09.2016 Judgment pronounced in the open court, operative portion of which reads as under:-
Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for offences punishable under Section 363, 366 and 376 of I.P.C r/w Sec.
5(l) r/w Sec.6 of Protection of Children from Sexual Offence Act, 2012. (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.