Bangalore District Court
The State Of Karnataka vs Saravan @ Vinod on 7 November, 2016
IN THE COURT OF THE L ADDL., CITY CIVIL &
SESSIONS JUDGE, BANGALORE
Dated this the 7th Day of November 2016
- : PRESENT: -
SMT. B.S.REKHA B.A. Law., LL.M.
L Additional City Civil & Sessions Judge,
Bangalore.
SPECIAL.C.C.No.544/2015
COMPLAINANT:
The State of Karnataka,
By Vivek Nagar Police Station,
Bangalore.
[Rep. Public Prosecutor-Bangalore.]
/ VERSUS /
ACCUSED: Saravan @ Vinod
S/o. Madiya Alagan, 24 years,
R/at. No.388, 5th Cross, 6th Main,
Near Mariyamma Temple,
Dayananda Nagar,
Jaya Nagar 1st Block,
Bangalore
[Rep.Sri.B.A.-Advocate.]
1 Date of commission of offence 27-08-2015
2 Date of report of occurrence 28-08-2015
3 Date of arrest of Accused 02-09-2015
Date of release of Accused 15-03-2016
Period undergone in custody 13 days and 05
by Accused months
2 Spl.C.No.544/2015
4 Date of commencement of 09-03-2016
evidence
5 Date of closing of evidence 31-08-2016
6 Name of the complainant Yellamma
7 Offences complained of Section 366, 376 of IPC
r/w. Section 5(l) r/w. 6
of POCSO Act.
8 Opinion of the Judge Accused is acquitted
9 Order of Sentence As per the final order
JUDGMENT
The Police Inspector attached to the Vivek Nagar Police Station, Bangalore City, has filed this charge sheet against the accused for the offences punishable under Section 363, 366-A, 376 of I.P.C and Section 4 of POCSO Act.
2. The brief facts of the prosecution case is that one year prior to 27-08-2015 the accused who was working in Ezipura Main Road, Idea Office, came in contact with the Cw.2-the minor daughter of Cw.1 and resident of No.35, 24th Cross, Nadugadda, Muneshwara Layout, Ezipura, Vivek Nagar and there after they started to love each other and when nobody was there in the 3 Spl.C.No.544/2015 house of the victim, the accused inducing her that he is going to marry her, committed forcible sexual intercourse knowing that she is minor and thereafter when the victim informed him that she is not getting periods, on 27-08-2015 at 01.00 p.m., the accused on the guise of marrying the victim forcibly kidnapped her and thereby committed offences punishable under Section 366, 376 of IPC read with Section 5(1) read with Section 6 of POCSO Act.
3. After submission of charge sheet before this Court, cognizance was taken and registered as Special Case No.544/2015. Accused is on bail. He engaged a counsel for his defense. The copies of the charge sheet were furnished to him. After hearing both sides charge for the above offence was framed, read over and explained to the accused, for which the accused pleaded not guilty and claimed to be tried.
4. On behalf of the prosecution Pw.1 to Pw.13 are examined and Ex.P1 to Ex.P19 are marked. 4 Spl.C.No.544/2015 Thereafter, the accused is examined under Section 313 of Cr.P.C. He denied the evidence, which appeared against him and he has not chosen to lead evidence on his side.
5. Perused the records and heard the arguments.
6. The facts and the evidence on record guided me to formulate the following points for consideration:
1) Whether the prosecution has proved beyond reasonable doubt that one year prior to 27-08-2015 the accused who was working in Ezipura Main Road, Idea Office, came in contact with the Cw.2-the minor daughter of Cw.1 and resident of No.35, 24th Cross, Nadugadda, Muneshwara Layout, Ezipura, Vivek Nagar and there after they started to love each other and when nobody was there in the house of the victim, the accused inducing her that he is going to marry her, committed forcible sexual intercourse knowing that she is minor and thereby committed offence punishable under Section 376 of IPC read with Section 5(1) read with Section 6 of POCSO Act?
2) Whether the prosecution has proved beyond reasonable doubt that when the victim informed the accused that 5 Spl.C.No.544/2015 she is not getting periods, on 27-08-
2015 at 01.00 p.m., he on the guise of marrying the victim forcibly kidnapped her and thereby committed offence punishable under Section 366 of IPC?
3) What Order?
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 As per final orders for the following REASONS
8. Point No.1 and 2:- In order to prove the case the prosecution has examined 13 witnesses.
9. Cw.2-the victim has stated that she is not aware of the accused. Cw.1 is her mother. She is not aware of the complaint lodged by her mother. About six months back she has signed one document in Vivek Nagar Police Station, as she was found missing and her mother had given the complaint. She is not aware of the contents of the document. She went to her relative's 6 Spl.C.No.544/2015 house. As her mother used to tell that she should be in the house, she went to the relative's house and came after three days. She has not given statement to the police. Her date of birth is 19-10-1997.
10. During the course of cross-examination she had denied that she is aware of the accused and they loved. She also denied that the accused had physical contact with her. She denied that on 27-08-2015 when her mother went to purchase articles, the accused forcibly kidnapped her and thereafter he left her at Majestic bus stop on 01-09-2015. She denied that she shown the place of incident.
11. Cw.1-Yellamma, examined as Pw.1 had stated that the victim is her daughter. In August-2015 she went to purchase the articles during evening and when she came and found the victim was not in the house. Thereafter she lodged the complaint. At that time the victim was aged 17 years. She identified her signature on the complaint as per Ex.P3(a). After three days police 7 Spl.C.No.544/2015 came and told that they have brought her daughter. On enquiry her daughter told that she went to the house of their relatives. She is not aware of the accused. She has not given statement to the police. The police have sent the victim with her.
12. During the course of cross-examination she had admitted that when the victim was found missing, she called her mobile and she received as switched off. At that time the victim was failed in S.S.L.C. and she was in the house. She turned hostile to the case of the prosecution in entirety.
13. Cw.3-Manjunath, examined as Pw.3 had stated that the victim is his sister, Pw.2 is his mother. In the year 2015-August, the victim was failed in S.S.L.C. and she was in the house. He is not aware of the accused and he is not aware of this case. He had not given any statement. He admitted that his mother had lodged the complaint. Further he denied the other suggestions.
8 Spl.C.No.544/2015
14. Cw.7-Kumari, examined as Pw.4 had stated that she knows Pw.1 to Pw.3. The police have not called her. She is not aware of this case. She signed the document about four months back when the police came near her house. She is not aware of the reasons and she is not aware of the contents. She turned hostile to the case of the prosecution.
15. Cw.8-Dr.Suresh.V., examined as Pw.5 had stated that on 02-09-2015, the Vivek Nagar Police Inspector-Cw.17 had brought the accused and on examination he found that there was no material to show that the accused is incapable to do sexual intercourse. He had given report as per Ex.P7 and he identified the accused.
16. Cw.4-Muniswamy, examined as Pw.6 has stated that he knows Pw.2-Yellamma. Pw.1 is his elder aunt's daughter. He had not seen the accused. Her elder aunt called him about 8 months back as the victim was found missing and already the complaint was 9 Spl.C.No.544/2015 lodged. He came after 2 to 3 days and police have taken his signature. The victim was aged 16 years at that time. After 15 days the victim was found. He had not enquired the victim. His elder aunt told that the victim had loved some one and went along with him, but he is not aware of the boy. He had not given statement to police.
17. During the course of cross-examination he had stated that his elder uncle is agriculturist in Denkana Kote, Tamil Nadu. He also turned hostile to the case of the prosecution.
18. Cw.5-Jayalakshmi examined as Pw.7 had stated that Pw.2 is her elder aunt and Pw.1 is the victim. She has not seen the accused. Last year the victim was failed in S.S.L.C and she was in the house. On 17-09- 2015 the victim was found missing and her elder aunt called and intimated her. She came to Bangalore and already the complaint was lodged. Thereafter the victim came back. Her elder aunt told that one Vinod had taken her and he had requested the mother of the victim 10 Spl.C.No.544/2015 that he is interested to marry her. Thereafter they have taken the victim to the house and she went to her village. One Vinod had taken the victim for three days. She is not aware as to what he did. She identified the accused.
19. During the course of cross-examination she had admitted that on 27-08-2015 at 12.30 p.m., the accused had taken the victim when the mother of the victim was not in the house. Thereafter the mother of the victim had lodged the complaint. She came to Bangalore on 01-09-2015. The victim told that the accused was known to her and on 27-08-2015 the accused had kidnapped the victim. She received phone call on Thursday. She had not given the statement to the police. She came to know that the accused had kidnapped the victim as per the information given by her elder aunt. There is one peculiar suggestion which reads as " DgÉÆæ ªÀÄvÀÄÛ £ÉÆAzÀ ¨Á®Q J°èUÉ ºÉÆÃVzÀÝgÀÄ ªÀÄvÀÄÛ KPÉ ºÉÆÃVzÀÝgÀÄ JAzÀÄ UÉÆwÛ®è CAzÀgÉ ¸Àj. " 11 Spl.C.No.544/2015
20. Cw.19-H.V.Suresh-P.S.I, examined as Pw.8 had stated that on 28-08-2015 at 09.00 a.m., Pw.2 came to the station and given complaint by saying that Pw.1 found missing from 27-08-2015 as per Ex.P3. He registered the case and submitted FIR to the Court and send the information to other Police Stations. The typed copy of the complaint was given on 29th. He intimated to other Police Station.
21. Cw.20-S.Balachandra Nayak-Police Inspector, examined as Pw.9 had stated that on 01-09-2015 he took up further investigation from Pw.8 and he went to the house of the victim and prepared mahazar as per Ex.P1. He sent the victim to the Bala Mandir. On 02-09- 2015 he sent the victim along with W.P.C-Ayesha Khanum to Bowring Hospital. The accused was produced on the same day. He recorded the voluntary statement of the accused. He recorded the statements of Manjunath, Muniswamy, Jayalakshmi, Durgamma and staff-Police Constable-Ramachandra and further statement of the complainant. On 19-11-2015 he 12 Spl.C.No.544/2015 obtained the age determination certificate of the victim as per Ex.P15. He sent requisition to Court to record 164 Cr.P.C. statement of the victim, but in the mean time she found missing and hence he was unable to get 164 Cr.P.C. statement recorded. On 02-09-2015 he produced the accused. Cw.18 had recorded the statement of the victim. The victim had not agreed for examination of her private parts. On 17-11-2015 he submitted charge sheet.
22. Cw.9-Dr.Arun Dasarahalli examined as Pw.10 had stated that on 02-09-2015, Vivek Nagar police produced Pw.1 for age determination and on examination she found she was aged about 16 to 18 years.
23. Cw.15-Jayamma, Police Constable examined as Pw.11 had stated that on 01-09-2015 she was on duty. She was deputed to bring the victim and they went to Shanti Nagar bus stop, Majestic bus stop and Railway Station and she had taken the photograph of the victim. In Railway Station one girl was sitting and on comparison of the photograph of the victim, they have 13 Spl.C.No.544/2015 taken custody of the girl. On enquiry she had stated her address. On 02-09-2015 she had taken the victim to Bowring Hospital.
24. During the course of cross-examination she had stated that nobody intimated that the victim was in railway station. They have not enquired as to why she was sitting there. Her name is stated as Deepa and nobody was there with her.
25. Cw.11-Sowmya Rao examined as Pw.12 had stated that the victim was studying in their school and Vivek Nagar Police have requested for her date of birth document and they have given her date of birth as 19- 11-1998, based on the document. She was studying in 10th standard.
26. Cw.18-Firoz Mohammad, examined as Pw.13 had stated that on 01-09-2015, W.P.C.-Cw.15 had produced the victim along with the report-Ex.P18. He recorded the statement of the victim and then sent the victim to Government Bala Mandir. On the next day she 14 Spl.C.No.544/2015 was called and he filed requisition to Court to include Section 366-A, 376 of IPC and Section 4 of POCSO Act. There after he sent the victim to Bowring Hospital.
27. The documents relied upon by the prosecution are Ex.P1 is the mahazar, Ex.P2 is the statement of the victim, Ex.P3 is the complaint, Ex.P4 is the statement of the complainant, Ex.P5 is statement of One Manjunath. Ex.P6 is the statement of Kumari, Ex.P7 is the medical report of the accused, Ex.P8 is the statement of Muniswamy, Ex.P9 is the statement of Jayalakshmi, Ex.P10 is the FIR, Ex.P11 is the report, Ex.P12 is the letter written to Bowring Hospital and Ex.P13 is the age estimation certificate of the victim which shows that she was aged between 16 to 18 years, Ex.P14 is the requisition given to the school, Ex.P15 is the age certificate issued by the school. Ex.P16 is the birth certificate of the accused, Ex.P17 is the O.P. Slip, Ex.P18 is the report and Ex.P19 is the requisition.
28. In this case on perusal of the overall oral and 15 Spl.C.No.544/2015 documentary evidence on record it could be seen that including the complainant, the victim, the brother of the victim have turned hostile to the case of the prosecution in entirety. Pw.6 and Pw.7 are the close relatives of the victim. Pw.6 says that he is not aware of the incident, but the mother of the victim told that the victim loved some one and she went with him. However Pw.7 says she went along with the accused and this matter was intimated to her by her elder aunt who is the mother of the victim. However she denied about the sexual assault. She has specifically stated that this accused had taken the victim.
29. Then comes the evidence of Pw.5-the doctor, who had stated that the accused is capable of doing sexual intercourse. In the evidence of Police Inspector, P.S.I., Police Constables, who have categorically stated about the investigation conducted by them. Pw.8 registered the complaint. Pw.9 had prepared the mahazar and he send the victim to the hospital and he 16 Spl.C.No.544/2015 recorded the voluntary statement of the accused and the statement of other witnesses.
30. Pw.10 is the doctor who had conducted only age determination examination of the victim. Pw.11 is the Police Constable who arrested the victim and thereafter she has taken her for medical examination. Pw.12 had stated about the age of the victim based on the document. Pw.13 is the Investigation Officer who conducted part investigation.
31. In this case the victim had specifically stated that the accused has not committed any offence and as she failed in S.S.L.C., her mother forced her to be in the house, she went to her relatives house and came back. In this case the mother also stated that the victim went to her relative's house, but she had given the complaint. Even the brother of the victim turned totally hostile. Even 164 Cr.P.C., statement was not recorded. The victim is not subjected to medical examination, except the age determination, because she had not co-operated. 17 Spl.C.No.544/2015
32. In this case the evidence available on record does not establish that the accused had kidnapped the victim and raped her against her will. The victim has not stated that the accused had committed rape on her prior to the kidnap also. In this case there is no attempt made by the prosecution as to why these witnesses have not supported the case. The accused has stated that they loved and after completion of 18 years they are married.
33. In this case as on the date of the incident, the victim had crossed 16 years of age. The victim had specifically denied about the accused. Though it is suggested to one witness that they are not aware as to why the accused and the victim went, but that suggestion is only may be mistake of the counsel. No much credence could be given to that suggestion, because it is not supported by any other evidence. In this case the complaint, mahazar are not established. The material witnesses have not supported the case of the prosecution. The accused himself says that he married the girl after she attained 18 years of age and earlier he 18 Spl.C.No.544/2015 loved her. Thus in this case the material available on record does not support the allegations made against this accused. Hence, in my opinion the Court has to come to the conclusion that the prosecution has failed to prove the guilt on the part of the accused beyond reasonable doubt. Hence, I answer these points in the Negative.
34. Point No.3:- In the result, I proceed to pass the following:
ORDER Under Section 235(1) of Cr.P.C., the accused is acquitted of the offences punishable under Section 366 and 376 of I.P.C read with section 5 (l) read with Section 6 of POCSO Act.
The bail bond and surety bond of accused stands cancelled.
(Dictated to the Judgment Writer, transcribed by her and also typed directly on computer to my dictation. It is then corrected and pronounced by me in the open court on this the 7 Day of November 2016.) (B.S.REKHA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.19 Spl.C.No.544/2015
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW 1 Deepa-Victim Cw.2 09-03-2016 PW 2 Yellamma Cw.1 09-03-2016 PW 3 Manjunatha Cw.3 09-03-2016 PW 4 Kumari Cw.7 09-03-2016 PW 5 Dr.Suresh Cw.8 21-03-2016 PW 6 Muniswamy Cw.4 21-03-2016 PW 7 Jayalakshmi Cw.5 21-03-2016 PW 8 H.V.Suresh-P.S.I. Cw.19 21-03-2016 PW 9 Balachandra Nayak- Cw.20 21-03-2016 P.I. PW 10 Dr.Arul Das Cw.9 07-04-2016 PW 11 Jayamma Cw.15 01-06-2016 PW 12 Sowmya Rao Cw.11 22-06-2016 PW 13 Firoz Ahamed Cw.18 31-08-2016 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Mahazar Pw.1 09-03-2016 Ex.P 1a Signature of Pw.1 Pw.1 09-03-2016 Ex.P 1b Signature of Pw.4 Pw.4 09-03-2016 Ex.P 2 Statement of victim Pw.1 09-03-2016 Ex.P 3 Complaint Pw.2 09-03-2016 Ex.P 3a Signature of Pw.2 Pw.2 09-03-2016 Ex.P 4 to Statements of Pw.2 09-03-2016 6 to Pw.4 20 Spl.C.No.544/2015 Ex.P 7 Medical report of Pw.5 21-03-2016 accused Ex.P 7a Signature of Pw.5 Pw.5 21-03-2016 Ex.P 8 & Statements of Pw.6 Pw.6 21-03-2016 9 and Pw.7 Pw.7 Ex.P 10 FIR Pw.8 21-03-2016 Ex.P 10a Signature of Pw.8 Pw.8 21-03-2016 Ex.P 3b Signature of Pw.8 Pw.8 21-03-2016 Ex.P 11 Report Pw.9 21-03-2016 Ex.P 11a Signature of Pw.9 Pw.9 21-03-2016 Ex.P 1c Signature of Pw.9 Pw.9 21-03-2016 Ex.P 7b Signature of Pw.9 Pw.9 21-03-2016 Ex.P 12 Report Pw.9 21-03-2016 Ex.P 13 Report of victim Pw.9 21-03-2016 Ex.P 13a Signature of Pw.9 Pw.9 21-03-2016 Ex.P 14 Age certificate Pw.9 21-03-2016 Ex.P 14a Signature of Pw.9 Pw.9 21-03-2016 Ex.P 15 Birth certificate of Pw.9 21-03-2016 victim Ex.P 15a Signature of Pw.9 Pw.9 21-03-2016 Ex.P 16 Birth certificate of Pw.9 21-03-2016 accused Ex.P 16a Signature of Pw.9 Pw.9 21-03-2016 Ex.P 17 O.P. Slip of victim Pw.9 21-03-2016 Ex.P 17a Signature of Pw.9 Pw.9 21-03-2016 Ex.P 13b Signature of Pw.10 Pw.10 07-04-2016 Ex.P 18 Report of Pw.11 Pw.11 01-06-2016 Ex.P 18a Signature of Pw.11 Pw.11 01-06-2016 Ex.P 14b Signature of Pw.12 Pw.12 22-06-2016 Ex.P 15b Signature of Pw.12 Pw.12 22-06-2016 21 Spl.C.No.544/2015 Ex.P 2a Signature of Pw.13 Pw.13 31-08-2016 Ex.P 18b Signature of Pw.13 Pw.13 31-08-2016 Ex.P 19 Report Pw.13 31-08-2016 Ex.P 19a Signature of Pw.13 Pw.13 31-08-2016 LIST OF MATERIAL OBJECTS MARKED
-NIL-
LIST OF WITNESSES EXAMINED, DOCUMENTS MARKED & MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(B.S.REKHA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE