Bangalore District Court
State By Madiwala Police vs Usman Khadri on 25 November, 2016
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS JUDGE AT
BANGALORE CITY (CCH-55)
Dated this the 24th day of November 2016
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY.
Spl.C.C.No.88/2013
COMPLAINANT State by Madiwala Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Usman Khadri,
Son of Khadri,
Aged 42 years,
No.310, Ambedkarnagar,
Bandepalya,
Bangalore-68.
(By Sri.D.A.Sudheer and Sri. R.Keshava Reddy-
Advocates)
1. Date of commission of offence 08.03.2013
2. Date of report of occurrence of 11.03.2013
the offence
3. Date of arrest of accused 13.03.2013
4. Date of release of accused 10.05.2013
[on court bail]
5. Period undergone in custody One Month and 28 days
by the accused
2 Spl. CC No.88/2013
6. Date of commencement of 10.1.2014
evidence
7. Date of closing of evidence 25.10.2016
8. Name of the complainant Smt.Nasima
9. Offences complained of Secs. 506, 377 r/w Sec.511 of
IPC and under Secs.7, 8 of
POCSO Act, 2012
10. Opinion of the Judge The accused is found guilty
of the offence punishable
under Sec.8 of POCSO Act,
2012 Act and under Sec.506 of
IPC.
The accused is acquitted of
the offence punishable under
Sec.377 r/w Sec.511 of IPC.
The accused shall undergo
simple imprisonment for a
period of 3 years and to pay a
fine of Rs.1,000/- for the
offence punishable under
Sec.8 of POCSO Act, 2012. In
default of payment of fine
amount, the accused shall
undergo simple imprisonment
for a period of One Month.
Further, the accused shall
undergo simple imprisonment
for a period of 6 Months for
the offence punishable under
Sec.506 of IPC.
3 Spl. CC No.88/2013
JUDGMENT
Police Inspector, Madiwala Police Station, Bangalore, has submitted charge sheet in Crime No.175/2013 against the accused for the offences punishable Under Secs. 506, 377 r/w Sec.511 of IPC and under Secs.7, 8 of POCSO Act, 2012.
2. The prosecution case briefly stated:
That on 8.3.2013 at about 5-A.M., when the complainant- CW1 had gone to the household work, the accused and the victim boy were in the house. The accused herein being the 2nd husband of the complainant, bolted the doors of the house and asked the victim boy to remove his clothes and the accused also removed his clothes and tried to commit sexual assault on the victim boy, against to the nature and also threatened the victim boy to kill him and his mother, if he [victim boy] revealed the said fact to his mother. Hence, the complaint, as per Ex.P1.
3. On the basis of the said complaint, a case was registered in Cr.No.175/2013 against the accused as per FIR-Ex.P5. Thereafter, criminal law was set in motion. The Investigating Agency commenced the investigation.
4. Thereafter, the police have recorded the statement of the victim boy and taken up further investigation. The victim boy was sent for medical examination and spot mahazar conducted and after completion of the investigation formalities, charge-sheet has been filed.
4 Spl. CC No.88/20135. The accused was secured on 13.3.2013 and he is on court bail. He is represented by the counsel of his choice. After production of the accused, the copies of the prosecution papers [charge-sheet] was given to the counsel on behalf of the accused in- compliance with Sec.207 of Cr.P.C.
6. After hearing the learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in- office has framed the Charge on 17.8.2013 for the offences punishable under Secs.377 r/w Sec.511 of IPC and under Sec.8 of POCSO Act, 2012 and under Sec.506 of IPC and read over to the accused in the language known to him. The accused pleaded not guilty and claimed trial.
7. The prosecution in order to bring home the guilt of the accused has examined in all 7 witnesses as PWs-1 to 7, out of the total witnesses 10 as shown in charge-sheet and another additional witness is examined by the prosecution as PW8 and got marked 6 documents as Exs.P1 to P6. No material objects are marked on behalf of the prosecution.
8. At this stage it is necessary to mention that, though in the charge-sheet, there are 10 witnesses cited, the prosecution examined only 7 witnesses and one Additional witness is examined as PW8. CW3, CW5 and CW6 who are the residents of the same colony where the complainant is residing and supposed to say about the incident are not examined by the prosecution. On 5 Spl. CC No.88/2013 perusal of the order sheet it discloses that on several times, summons and warrants issued to the aforesaid witnesses, the witnesses CW3, CW5 and CW6, vacated the house and their address could not be traced out. Hence, they were not examined and therefore CW3, CW5 and CW6 were dropped vide order dated:
14.3.2016 by rejecting the prayer made by learned Public Prosecutor.
9. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C was recorded. The accused has denied the incriminating evidence found in the evidence of prosecution witnesses. His defence is that of total denial of his involvement in the alleged incident and that he is totally innocent. However, the accused did not choose to lead any evidence in support of his defense.
10. Heard the learned Public Prosecutor and the learned counsel for the accused. Perused the records.
11. As per the Charge leveled against this accused, the following Points do arise for consideration are:
1. Whether the prosecution proves beyond reasonable doubt that on 8.3.2013 at about 5 A.M., in the morning, the accused tried to commit sexual assault on the victim boy against to the nature and thereby committed an offence punishable under Sec.377 r/w Sec.511 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that the accused threatened the victim boy that he would kill him [victim boy] and 6 Spl. CC No.88/2013 his mother if he would reveal the said facts to his mother and thereby committed an offence punishable under Sec.506 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that the accused with sexual intent touched the anus of the victim boy and thereby committed an offence punishable under Sec.8 of POCSO Act, 2012?
4. What Order?
12. My findings on the above points are as under:
Point No.1 :: In the NEGATIVE Point Nos.2 and 3: In the AFFIRMATIVE Point No.4: As per the final order, for the following:
REASONS
13. According to the prosecution, that on 8.3.2013 at about 5. A.M., when the complainant-CW1 had gone to the household work, the accused and the victim boy were in the house. The accused herein being the 2nd husband of the complainant, bolted the doors of the house and asked the victim boy to remove his clothes and the accused also removed his clothes and tried to commit sexual assault on the victim boy, against to the nature and also threatened the victim boy to kill him and his mother, if he [victim boy] reveale the said fact to his mother. Hence, the accused has committed the offences as per the charge leveled against him.
7 Spl. CC No.88/201314. POINT NOS.1 AND 3:- Consideration of these Two Points are based on the same facts and evidence and therefore, to avoid repetition, these Two Points are taken together for discussion.
15. Before taking the aforesaid Two Points for discussion, it is better to state about the prosecution witnesses and glimpse of evidence given by all the prosecution witnesses. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Smt.Nasima-complainant and the mother of the victim boy Pw.2 Victim boy Pw.3 Subramanyam-Head Master of the School where the victim boy studied who deposes about issuing of Certificate certifying the date of birth of the victim boy Pw.4 Susheela neighbour of the complainant's house and who deposes about the alleged incident as stated by the complainant to her Pw.5 Dr.Anuna Sethuraman who deposes about the medical examination of the victim boy Pw.6 Srinivas.G.T.-Sub-Inspector of Police, who deposes about the receipt of complaint, registering of FIR, conducting spot mahazar, arrest of the accused and sending the victim boy and the accused for medical examination Pw.7 Dr.Pradeep Kumar.M.P, who deposes about the medical examination of the accused Pw.8 Meenkashi-Co-ordinator of SJPU, who has done counseling on the victim boy 8 Spl. CC No.88/2013
16. PW1-complainant and the mother of the victim boy deposes that earlier she was married to one Sardar and from him she has 2 children i.e., one daughter and one son, who is the victim boy herein abed 12 years. Thereafter she married the accused herein. At the time of incident, the accused herein, herself and the victim boy are residing in the house at Dr.Ambedkar Nagar, the accused is a lorry driver, she used to go to the household work to other houses at 5 A.M., everyday and she used to return at 6 P.M., to the house. On 8.3.2013 as usual she had gone to the household work, the accused and the victim boy are in the house. When she came to her house at 7 A.M., to take her mobile, the door was locked. She knocked the door for a period of 10-15 minutes and thereafter, the door was opened by the accused. At that time, the accused was in underwear and there was no inner clothes on the victim boy and he was wearing only shirt and he was crying. When she asked the victim boy, he was panicked and did not say anything. The accused himself told that the victim boy was suffering from stomach ace and therefore, he removed his clothes. She asked the accused whether he has beaten the victim boy, the accused said no. Thereafter she went to the household work and at 2 P.M., she came to her house and again asked the victim boy as to what has happened and then in the evening he [victim boy] revealed that, after she [complainant] went to her work, he [victim boy] was washing the utensils, his father called him and asked him to remove his clothes and when he refused to remove the clothes, the accused himself removed the clothes of the victim boy and he also applied oil to the victim on his anus and asked him to sleep and when the victim boy refused to 9 Spl. CC No.88/2013 sleep, the accused himself caught hold and made the victim to sleep on the bed keeping his face down towards the floor and the accused slept on his back and put his penis into the anus of the victim boy and committed sexual assault for a period of 20 minutes. Meanwhile, the complainant came and knocked the door and thereafter the accused by wearing his shirt opened the door.
17. PW1 further deposes that, after hearing the same from the victim boy, she [complainant] gone to the complainant Police Station and lodged a complaint as per Ex.P1. After she lodged the complaint, the police came to her house and conducted spot mahazar as per Ex.P2. Thereafter the victim boy was taken to the Nimhans and Sanjay Gandhi Hospital. At that stage, the learned Public Prosecutor treated this witness as partly hostile to the case of the prosecution because the complaint was not lodged on the same day and the complaint was lodged on 3rd day of the incident. In that regard, she [PW1] was cross-examined by learned Public Prosecutor and during the course of cross-examination, PW1 admitted that she lodged the compliant on the 3rd day after the incident.
18. PW2 -victim boy and PW8-Co-ordinator attached to SJPU in their evidence deposes similar to the deposition of PW1. In order to avoid repetition, the depositions of PWs-2 and 8 are not narrated again.
19. PW3-Subramanyam-Head Master, HPS, Bandepalya [Garve Bavipalya] Bangalore, deposes that, he has issued 10 Spl. CC No.88/2013 Certificate certifying the date of birth of the victim boy as per Ex.P3 and he deposes that, the date of birth of the victim boy is 14.3.2001.
20. PW4-Susheela, is stated to be neighbour of the complainant. She deposed that she knows the complainant and the accused and also the victim boy. In the year 2013, one day, the complainant told her that her husband [accused herein] committed sexual assault on her son. When she had gone to the house of the complainant, people were beating the accused and the accused told sorry for the incident and thereafter it was informed to the police and the victim boy was under fear.
21. PW5-Dr.Aruna Sethuraman deposes that on 12.3.2013 at 12 Noon, Madiwala police brought the victim boy with the history of sexual abuse committed by the husband of the complainant. On medical examination of the victim boy, it revealed that, the victim boy was complaining of abdominal pain and alleged that there was attempt for anus intercourse by the step father. On physical examination, no visible external injuries were found on the body of the victim boy, on anus examination, there was no tear, abrasion, no fissures, genetelia was in-tact and there was no evidence of sexual abuse on anus and she has issued Report as per Ex.P4
22. PW6-Srinivas.G.T.-Sub-Inspector deposes that the complainant has lodged a complaint as per Ex.P1 and he has 11 Spl. CC No.88/2013 registered FIR as per Ex.P5 and conducted spot mahazar as per Ex.P2 and arrested the accused and sent both the accused and the victim boy for medical examination.
23. PW7-Dr.Pradeep Kumar.M.P, deposes that, on 13.3.2013, with the requisition of PSI, Madiwala Police, the accused was produced for medical examination on the history of the sexual assault. He has opined that, there was nothing to suggest that the person is incapable of performing sexual intercourse and he has given Medical Certificate as per Ex.P6.
24. On the basis of the aforesaid oral evidence of PWs-1 to 8 and the documents as per Exs.P1 to P6, learned Public Prosecutor submitted that this court can come to the conclusion that the accused has committed the offence against the victim boy.
25. On the other hand, the learned defence counsel argued that:
the complainant has got illicit relationship with one Ansari, who is the neighbour of her house and intentionally she lodged the complaint by making false allegations against this accused so as to see that the accused cannot come out of jail, there are serious contradictions, omissions and improvements in the evidence of the prosecution witnesses, there is inordinate delay in lodging the complaint of 3 days and which was not properly explained by the complainant and 12 Spl. CC No.88/2013 therefore, this is absolutely a false case deliberately foisted against the accused.
26. In so far as the arguments canvassed by the learned defence Counsel with regard to delay in lodging the complaint, on perusal of evidence of PW1-complainant, she stated that the incident happened on 8.3.2013 in the early morning, but she lodged the complaint on 11.3.2013. During the course of cross-examination of PW1, question is put to her with regard to delay in lodging the complaint, for that, she deposed that, on the same day [8.3.2013] at night she had gone to the Police Station, but, the police did not receive the complaint and further on that day, the leader of Mahila Samaja by name Geetha was not in station, on the next day morning, she [PW1] discussed with said Geetha and further she also discussed with the elders of her community people and thereafter she decided to lodge the complaint and accordingly on 11.3.2013 she lodged the complaint, therefore, there is delay of 3 days in lodging the complaint. The learned defence counsel argued that the complainant has not explained delay in lodging the complaint in the Ex.P1 and only during her evidence she deposes that she had gone to the Police Station on the same day and police did not receive the complaint. I have gone through the Complaint- Ex.P1. It is true that, in Ex.P1 there is no mention about the delay in lodging the complaint. However, on going through the background of the complainant, she belongs to minority community, she is uneducated and she is doing the household works [coolie work], she deserted her 1st husband and she married the accused herein, considering her mitigating 13 Spl. CC No.88/2013 circumstances, she might not have explained the delay in lodging the complaint. But, during the course of cross-examination, she has explained as to why there is delay in lodging the complaint and her explanation may be genuine and appears to be trustworthy without any exaggeration and therefore the reason for delay in lodging the complaint explained by her, can be accepted as true and thereby the arguments canvassed by learned defence counsel that there was delay of 3 days in lodging the complaint and it was not properly explained and therefore, doubt arises with regard to the very incident whether it has happened or not, has no force.
27. In so far as the arguments canvassed by the learned defence Counsel with regard to contradictions is concerned, he argued that evidence of PW4-Susheela being the neighbour of the complainant's house, during her chief examination deposes that there was injury on the victim boy. However on perusal of the medical evidence, there was no sexual abuse on the victim boy and there was no injury and there was no tears, abrasion, therefore the learned defence counsel submitted that incident not at all happened and PW4 is a created witness by the prosecution to support their evidence. It is true that, as per Ex.P4-Medical examination report of the victim boy, there was no injury on the victim boy. It is pertinent to note that after the incident, victim boy took bath. Further during the chief examination of PW5, PW5 deposed that, "If a person who has undergone for sexual abuse has taken bath or washed the said place, there may not be semen stains or blood stains. If there is superficial touch by the penis, there will be no scratches or injury, abrasion etc".
14 Spl. CC No.88/201328. Further, during the course of cross-examination of PW5, she stated that, the mother of the victim and the victim both told that there was an attempt for anus intercourse and further she examined the child after more than 72 hours from the time of the alleged incident, therefore injuries may not be found on the victim boy. Merely because PW4 deposes that there was injury on the victim boy, but, it is not corroborating with the evidence of PW5-Doctor, it cannot be said that the incident not happened at all. Therefore, the arguments canvassed by the learned defence counsel that there is contradiction in the evidence of PW4 and PW5-Doctor and Medical Report with regard to the injury and therefore the story of the prosecution cannot be believed and incident had not at all happened, has no force.
29. Further the learned defence counsel argued that the complainant police in collusion with the complainant created false case. He argued that there is difference in further statement of the complainant and the complaint and therefore the version of the complainant cannot be believable at all. On going through the complaint averments, the complainant has specifically stated that her son-victim boy told her about the alleged incident. In the further statement also, same narration was given by the complainant with little description. The sum and substance of the complaint and the further statement of the complainant are same and connected to each other and there is no exaggeration, improvements, inconsistency in the averments of complaint and further statement of the complainant. Both statements are similar 15 Spl. CC No.88/2013 and not entirely different from each other. Therefore the arguments canvassed by the learned defence counsel that there are difference in the complaint averments and averments in further statement of the complainant, has no force.
30. Further the learned defence counsel argued that PW8 who is stated to be the Co-ordinator with SJPU, deposes that on 11.3.2013 at about 11 A.M., she had gone to Madiwala Police Station and did counseling on the victim boy. However, the complaint is lodged on 11.3.2013 in the evening at 6.15 P.M. Therefore, the learned defence counsel argued that before lodging the complaint itself, PW8 interrogated the victim boy. Therefore, it is an after-thought and after deliberations, they lodged false complaint. However, it is pertinent to note that, according to the complainant, the incident happened on 8.3.2013 itself. The complainant told that the Co-ordinator of Mahila Samaj was not available on the said date and she met her on 10.3.2013 and accordingly on 11.3.2013, there was counseling held. Therefore, the arguments canvassed by the learned defence counsel that, before filing the complaint, PW8 did counseling on the victim boy and therefore the complaint as per Ex.P1, was an after-thought, is not sustainable.
31. In so far as the point raised by the learned defence Counsel with regard to minor discrepancies and contradictions in the evidence of the prosecution witnesses, as discussed under the aforesaid Paragraphs, on going through the evidence of the prosecution witnesses, though there are minor discrepancies and 16 Spl. CC No.88/2013 contradictions in the evidence of prosecution witnesses, much importance cannot be given to such minor discrepancies and contradictions. In that regard, this court has come across the decision of the Hon'ble Supreme Court reported in 1983 Cril.L.J 1096 SC, wherein it is observed that:
"Much importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basis version of the witnesses, therefore, cannot be annexed with undue importance".
32. In so far the point raised by the learned defence Counsel with regard to the complainant had illicit relationship with one Ansari, who is the neighbour of the complainant. That fact came to the knowledge of the accused and therefore, she [complainant] hatched a plan for lodging this complaint so as to see that the accused may be sent behind the bars. During the course of cross-examination of PW1, the learned defence counsel put a suggestion to PW1 with regard to the illicit relationship of her [PW1] with Ansari. The suggestion put to PW1 is that, complainant [PW1] with a deliberate intention to drive-away the accused from her house made false complaint. That suggestion was denied by PW1. However, in so far as the defence of the accused that the complainant was in illicit relationship with one Ansari, who is her neighbour, no proof produced by the accused, except the suggestion in the cross-examination of PW1 to prove that the accused had illicit relationship with Ansari. On going through the evidence of PW1, nothing worth elicited from her evidence to disbelieve her testimony. Therefore, the arguments canvassed by 17 Spl. CC No.88/2013 the learned defence Counsel that the complainant had illicit relationship with one Ansari, cannot be accepted.
33. After hearing the arguments of learned Public Prosecutor and the learned defence Counsel, and on careful reading of the evidence of PWs-1 to 8, the learned Public Prosecutor argued that the accused had made all preparations to have unnatural sex with the victim and if his act completed, then he would have been guilty of the offence punishable under Sec.377 of IPC. Therefore, learned Public Prosecutor submitted that this accused has committed an offence under Sec.377 r/w Sec.511 of IPC.
34. Having gone through the testimony of prosecution witnesses and the materials on record and also considering rival submissions of learned defence Counsel and learned Public Prosecutor, the court has to appreciate the testimony of the witnesses and contentions of parties from probable conduct of reasonable human being in given situation.
35. In that regard, I have gone through the provisions of Sec.377 of IPC. Sec.377 of IPC reads as under:
Sec.377-IPC-Unnatural offences- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine".
Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section".18 Spl. CC No.88/2013
On reading of the aforesaid provision and on reading of the explanation, this court is of the view that so as to say that the accused has committed the offence punishable under Sec.377 of IPC, it requires proof of penetration.
36. Further, I have gone through the Commentary of IPC by Ratanlal and Dhirajlal wherein there is a discussion on this aspect, and it is stated that, to convict the accused under Sec.377 of IPC, some activities on the part of the accused in that particular direction ought to have been proved strictly, atleast the accused caused injury to the victim, he made every preparation to satisfy that lust.
37. Learned Public Prosecutor argued that the accused in this case made all preparations to commit the said offence, as the victim boy took bath after the incident, the injuries and other stains not found on him. Therefore, learned Public Prosecutor argued that the accused in this case has committed an offence punishable under Sec.377 r/w Sec.511 of IPC.
38. However, on going through the evidence of the prosecution witnesses and further on perusal of the Medical Certificate issued by the Doctor, it is stated that there was no penetration, but it was only an attempt to commit the offence. No allegation of penetration, as such, is there which is required for convicting an accused for an offence under Sec.377 IPC, since preparation to commit an offence under Sec.377 IPC, is not an offence, as penetration is required, this court is of the opinion that 19 Spl. CC No.88/2013 the prosecution has failed to prove the guilt of the accused for the offence punishable under Sec.377 r/w Sec.511 of IPC.
39. In this case, there is charge against this accused that he has committed the offence of sexual assault as raised in Point No.3. Learned Public Prosecutor argued that the accused has committed sexual assault on the victim boy aged 12 years by putting his penis into the anus of the victim boy and thereby committed an offence punishable under Sec.8 of POCSO Act, 2012.
40. On the other hand, the learned defence Counsel argued that the accused has not committed an offence of sexual assault on the victim boy. He further argued that the PW1 deliberately lodged the complaint against this accused in order to see that the accused be sent to behind the bars. However his arguments, not accepted by this court, as discussed in the aforesaid Paragraphs.
41. On going through the evidence of PW1 to PW8 more specifically the evidence of PW1-complainant, PW2-victim boy, PW5-Doctor and the Medical Certificate as per Ex.P4 this court is of the opinion that, the accused is found guilty of the offence as defined under Sec.7 of POCSO Act, 2012, punishable under Sec.8 of POCSO Act, 2012 Act. Accordingly, I answer Point No.1 in the Negative and Point No.3 in the Affirmative.
42. POINT NO.2:- Learned Public Prosecutor submitted his arguments stating that PW1-complainant and PW2-victim boy, both 20 Spl. CC No.88/2013 of them stated that the accused threatened the victim boy with dire consequences if he [victim boy] were disclose the incident to his mother. Therefore, the accused has committed an offence under Sec.506 of IPC.
43. On the other hand, the learned defence counsel argued that false complaint is lodged against this accused for the reason that the complainant has got illicit relationship with one Ansari, who is the neighbour of her house and intentionally she [complainant] lodged the complaint by making false allegations against this accused so as to see that the accused cannot come out of the jail and therefore the learned defence counsel submitted his arguments that the accused has not committed any offence, as alleged by the prosecution.
44. On going through the evidence of PW1-Complainant, PW2-victim boy and further this court has come to the conclusion that the accused is found guilty of the offence punishable under the POCSO Act by answering Point No.3 in the Affirmative and further this court also opined that the complainant being the wife of the accused, will not lodge such kind of complaint against her own husband without there being any act of sexual assault committed by her husband on her son-victim boy and any parent would hesitate in reporting the matter to the police so as to avoid any stigma to be attached with the child and also the accused threatened the victim boy that he would kill him [victim boy] if he revealed the said incident to his mother. Therefore this court is of the opinion that the prosecution has proved the guilt of the accused 21 Spl. CC No.88/2013 that he has committed the offence punishable under Sec.506 of IPC. Accordingly I answer Point No.2 in the Affirmative.
45. POINT NO.4: In view of my aforesaid discussions, I proceed to pass the following ORDER In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is found guilty of the offences punishable under Sec. 8 of POCSO Act, 2012 and under Sec.506 of IPC.
The accused is acquitted of the offence punishable under Sec.377 r/w Sec.511 of IPC.
To Hear regarding sentence.
[Dictated to the Stenographer partly and directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 24th day of November 2016).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
25.11.2016 HEARD WITH REGARD TO AWARDING OF SENTENCE.
The accused was produced before me. On hearing the accused personally, he submitted that he is a poor person, 22 Spl. CC No.88/2013 uneducated and suffering from ailments, he is aged 50 plus years, he has old aged mother and therefore, he prays for taking lenient view in imposing the sentence.
On the other hand, the learned Public Prosecutor has submitted that the accused has committed heinous crime against his step-son and he is not deserve any leniency in imposing sentence.
In this case, the accused is convicted for the offences punishable under Sec.8 of POCSO Act, 2012 and under Sec.506 of IPC.
On going through the provisions of Sec.8 of POCSO Act, 2012, it provides that:
"Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than 3 years, but, which may extend to 5 years, and shall also be liable to fine".
Sec.506 of IPC provides that:
"Whoever commits the offence of criminal intimidation, shall be punished with imprisonment of either description for a term which may extend to 2 years or with fine, or with both".23 Spl. CC No.88/2013
In view of the minimum punishment provided under Sec.8 of POCSO Act, 2012, this court cannot take any lenient view in imposing lesser sentence than the minimum sentence prescribed in the provision.
In so far as imposing fine is concerned, the accused himself submitted that he is a poor man having no income or any movable or immovable properties. The prosecution has not produced any documents/materials to show that, the accused is having sufficient income, movable and immovable properties and thereby he is capable of paying huge fine amount and to pay compensation to the victim boy.
Under these circumstances, in the absence of any materials placed with regard to the income of the accused and his capacity to pay the fine and the compensation amount, lenient view is taken in imposing the fine amount.
Considering the background of the accused i.e., his ill-health, his education, his old aged mother and further also considering the crime committed by him against his step-son, I proceed to pass the following:
24 Spl. CC No.88/2013SENTENCE The accused shall undergo simple imprisonment for a period of 3 years and to pay a fine of Rs.1,000/- for the offence punishable under Sec.8 of POCSO Act, 2012. In default of payment of fine amount, the accused shall undergo simple imprisonment for a period of One Month.
Further, the accused shall undergo simple imprisonment for a period of 6 Months for the offence punishable under Sec.506 of IPC.
The period of detention undergone by the accused in judicial custody shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
The substantial sentence shall run concurrently, the sentence in default of payment of fine shall run consecutively.
Office is directed to supply the free copy of this Judgment to the accused forthwith.
So far as victim compensation is concerned, the complainant police is directed to submit a Report with regard to present status of the victim boy before this court within a period of 25 Spl. CC No.88/2013 One Month from this date, so to make recommendation to District Legal Services Authority, Bengaluru.
(Dictated to the Stenographer directly on the computer, corrections carried out and then pronounced by me in the Open Court on this the 25th day of November 2016).
[RAJESHWARI.N.HEGDE] LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Smt.Nasima CW1 10.1.2014
Pw.2 Victim boy CW2 10.1.2014
Pw.3 Subramanyam CW9 20.2.2014
Pw.4 Susheela CW4 22.1.2015
Pw.5 Dr.Anuna Sethuraman CW7 20.1.2016
Pw.6 Srinivas.G.T. CW10 1.2.2016
Pw.7 Dr.Pradeep Kumar.M.P CW8 14.3.2016
Pw.8 Meenkashi Additional witness 4.10.2016
as shown in the
application
dt: 16.4.2016
Documents marked for the prosecution:
Ex.P1 Complaint lodged by PW1
Ex.P1(a) Signature of PW1
Ex.P1(b) Signature of PW6
26 Spl. CC No.88/2013
Ex.P2 Spot Mahazar
Ex.P2(a) Signature of PW1
Ex.P2(b) Signature of PW6
Ex.P3 Certificate issued by the Head Master, Government
School, Garve Palya, Hosur Road, certifying the date of birth of the victim boy Ex.P3(a) Signature of PW3 Ex.P4 Medical certificate of the victim boy Ex.P4(a) Signature of PW5 Ex.P5 FIR Ex.P5(a) Signature of PW6 Ex.P6 Medical certificate of the accused Ex.P6(a) Signature of PW7 Witness examined and documents marked for the accused: NIL LIV Addl., City Civil & Sessions Judge, Bangalore.27 Spl. CC No.88/2013
24.11.2016 Judgment pronounced in open court:
[ Vide separate detailed Judgment] In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is found guilty of the offences punishable under Sec. 8 of POCSO Act, 2012 and under Sec.506 of IPC.
The accused is acquitted of the offence punishable under Sec.377 r/w Sec.511 of IPC.
To Hear regarding sentence.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY 25.11.2016 SENTENCE The accused shall undergo simple imprisonment for a period of 3 years and to pay a fine of Rs.1,000/-
for the offence punishable under Sec.8 of POCSO Act, 2012. In default of payment of fine amount, the accused shall undergo simple imprisonment for a period of One Month.
28 Spl. CC No.88/2013Further, the accused shall undergo simple imprisonment for a period of 6 Months for the offence punishable under Sec.506 of IPC.
The period of detention undergone by the accused in judicial custody shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
The substantial sentence shall run concurrently, the sentence in default of payment of fine shall run consecutively.
Office is directed to supply the free copy of this Judgment to the accused forthwith.
So far as victim compensation is concerned, the complainant police is directed to submit a Report with regard to present status of the victim boy before this court within a period of One Month from this date, so to make recommendation to District Legal Services Authority, Bengaluru.
RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY 29 Spl. CC No.88/2013