Bangalore District Court
State By Madiwala Police vs Mahesh.N on 18 November, 2017
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the 17th day of November, 2017
Present: SMT.YADAV VANAMALA ANANDRAO., B.Com. LL.B.[Spl.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO.87/2013
COMPLAINANT: State by Madiwala Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Mahesh.N,
Son of Nanjundaiah,
Aged 19 years,
Residing at: House of Smt.Bhagyamma,
2nd Cross, Rotarynagar, Kodichikkanahalli,
Bangalore.
Permanent Resident of:
Madavadi Grama, Talakadu Hobli,
T.Narasipura Taluk, Mysore District.
[By Advocate Sri. Kemparaju]
2 Spl CC No.87/2013
1. Date of commission of offence 11.02.2013
2. Date of report of occurrence of 12.02.2013
the offence
3. Date of arrest of accused 14.2.2013
4. Date of release of accused [bail] Accused is in the judicial
custody from the date of his
arrest i.e., from 14.2.2013 and
on 17.11.2017, he is convicted
and on 18.11.2017, he is
sentenced, as per the final
order.
5. Date of commencement of 12.1.2015
evidence
6. Date of closing of evidence 10.7.2017
7. Name of the complainant Smt.Pavithra-
complainant/mother of the
victim girl
8. Offences complained of Secs. 363,376, 302 and 201 of
IPC and under Secs. 4 and 6 of
[as per the charge-sheet]
POCSO Act, 2012
9. Opinion of the Judge As per the final order
3 Spl CC No.87/2013
JUDGEMENT
The Investigating Officer i.e., the Police Inspector, Madiwala police station has filed charge-sheet against the accused for the offences punishable under Secs. 363,376, 302 and 201 of IPC and under Secs. 4 and 6 of POCSO Act, 2012.
2. Initially this case was before 1st Addl. CC and SJ, which was received crime records from IIIrd ACMM, Bangalore in Crime No. 112/2013. In view of notification dated 17/06/2015 by Hon'ble High Court of Karnataka, Bangalore vide RSB No. 129/2015, this case was transferred to this CCH-55, Bangalore. Nas per the Notification, No. ADM-I (A)/ 614/2017, of the Office of the City Civil Court, Bengaluru, dated:4.8.2017 with effect from the afternoon of 5.8.2017, the case is before this Child Friendly Court, Bengaluru Urban District, for disposal.
3. It is a case of rape and murder, hence name of the victim girl is nowhere shown in the course of Judgment, as mandatory under Sec. 227(a) of Cr.P.C. However, her name is referred to as "Victim girl/Victim child" wherever her reference is necessary.
4. Prosecution case in brief is that:
On 11.2.2013 at about 4 P.M., when the victim girl/ deceased aged 4 years i..e, the daughter of the complainant/CW1 was playing in front of the house of CW9- Smt.Bheemamma, the 4 Spl CC No.87/2013 Rented premises of CW9, known as Vatara, which is located at 2nd Cross Road, Rotary Nagar, Kodichikkanahalli, Bangalore, coming within the limits of Madiwala Police station, at that time, the accused under the guise of giving chocolate took the victim girl by inducing her to his house located in the same Vatara and committed aggravated penetrative sexual assault on the victim girl and killed her by strangulation by hand and kept the dead body in his house and thereafter in the midnight, to screen the dead body, he took it to the nearby open site and threw the same at that place and thereby committed the heinous offences, punishable under the said provisions. The complainant/mother of the victim girl had lodged a complaint and the Investigating Officer has undertaken the investigation. During the course of investigation, the accused was arrested and he was taken to the judicial custody. Since, then the accused is in the judicial custody. The Investigating Officer has conducted investigation and after completion of the investigation, he has filed charge- sheet. Cognizance was taken.
5. After production of the accused, the copies of the prosecution papers [charge-sheet] was furnished to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C. the accused is represented by the counsel of his choice.
6. After hearing the learned Public Prosecutor and the learned counsel for the accused, my Predecessor-in-office has framed the Charge on 12.2.2014 and read over to the accused in 5 Spl CC No.87/2013 the language known to him. The accused pleaded not guilty and claimed the trial.
7. Out of total 27 charge-sheet witnesses, the prosecution has adduced the evidence of PWs-1 to 12 and PWs-15 to 17 and 2 additional witnesses as PWs-13 and 14 and got marked Exs.P1 to P29 and Material Objects at MOs-1 to 9.
Exs.D1 to D3- Photographs are marked during the cross- examination of PW1.
8. Thereafter the statement of the accused under Sec.313 of Cr.P.C has been recorded. The incriminating evidence of the prosecution witnesses against him are specifically denied by the accused and the accused submitted his written statement under Sec.315 of Cr.P.C, but, he has not adduced any evidence, in support of his defence. Accordingly the arguments of the learned counsel for the accused and the learned Public Prosecutor were heard. Perused the oral and documentary evidence and the record on hand. Following Points are formulated for consideration:
1. Whether the prosecution has proved beyond all reasonable doubt that, on 11.2.2013 at about 4 P.M., when the victim girl aged a bout 4 yeas, was playing in front of the house of CW9 by name Smt.Bheemamma, the accused came there and by inducing the victim girl of offering chocolates, took her inside his house and to avoid of her shouting pressed her neck with his hand and committed aggravated penetrative sexual assault/rape on the victim girl and thereby the accused has committed an offence coming within the purview of definition Clause of 6 Spl CC No.87/2013 Sec.5(m) of POCSO Act, 2012, punishable under Sec.6 of POCSO Act, 2012 r/w Sec.376 of IPC?
2. Whether the prosecution has further proved beyond all reasonable doubt that, on the aforesaid date, time and place, the accused while committing aggravated penetrative sexual assault/rape on the victim girl, had murdered the victim girl by strangulating her neck with his hands and thereby the accused has committed an offence punishable under Sec.302 of IPC?
3. Whether the prosecution has further proved beyond reasonable doubt that, after committing the rape and murder of the victim girl, the accused had kept the dead body of the victim girl in his house and thereafter in the midnight, in order to screen the dead body and the offence of murder, the accused took the dead body of the victim girl and threw it in open site situated nearby his house and thereby the accused has committed an offence punishable under Sec.201 of IPC?
4. What Order?
9. My findings on the above points are as under:
POINT NOS.1 TO 3: IN THE AFFIRMATIVE POINT NO.4: As per the final order, for the following:
REASONS
10. POINTS-1 TO 3:- As these Points are inter-linked with each other, hence, they are taken up for common consideration to avoid repetition of facts. The specific case of the prosecution is that, on 11.2.2013, at 4 P.M., when the victim girl aged about 4 years was playing in the "Vatara" belonging to one 7 Spl CC No.87/2013 Bhagymma-PW-8, the accused by inducing the victim girl offering chocolate, took her to his house and committed aggravated penetrative sexual assault and by pressing her neck(manual strangulation) committed the murder of the victim girl. Further, to screen the dead body, he took the dead body in the midnight, to the place where there was heap of soil i.e., open site adjoining to the house of PW-7 and threw the dead body on that heap of soil etc. The entire prosecution case is based no circumstantial evidence, as no one is cited as eyewitness/direct evidence. It is well-settled that, evidence should be weighed and not to be counted.
11. As this case is running around the victim girl child aged about 4 years and the allegation is that, she was subjected to aggravated penetrative sexual assault coming within the definition Claue of Sec.5(m) of POCSO Act, 2012 and as covered under the definition Clause of 2(a) of POCSO Act, 2012, as she [victim girl child falling within the purview of meaning of 'Child' as defined under Sec.2(d) of POCSO Act, 2012 i.e., below the age of 18 years] she was below the age of 12 years and Sec. 375 of IPC, having no worldly knowledge, capacity of knowing things and consequence of that fatal event and specifically she being a human being in the world and citizen of the country and civilian/resident of the said locality, residing with her poor mother and mother's mother, who are doing work for their survival [the family], specifically the children including the victim girl, to lead their day today life. It is further alleged that, the victim girl was not only subjected to rape, but, also she was killed brutally by the culprit amounting to 8 Spl CC No.87/2013 murder, while committing rape on her, which will be as defined under Sec.300 of IPC, attracting the penal provision of Sec.302 of IPC.
12. As the Special Act[ Protection of Children from Sexual Offences Act, 2012] in brief POCSO Act, 2012, come into force to protect the children from the offence of sexual assault, sexual harassment and pornography and provided for establishment of Special Courts for trial of such offences and for matters connected therewith or incidental thereto. It empowers the State to make special provisions for children, as Government of India has acceded to the convention on the Rights of the child, adopted by the General Assembly of the United Nation, which has prescribed a set of standards to be followed by all state parties in securing the best interest of the children and hence, it is necessary to refer the object of the POCSO Act, 2012, which reads thus:
"It is necessary for the proper development of the child that his or her rights to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child".
Further, it is the object and essence of POCSO Act, 2012 that:
"It is imperative that the law operates in manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy, physical, emotional, intellectual and social development of a child".
Sexual exploitation and sexual abuse of children are heinous crimes and needs to effectively addressed and hence, the said 9 Spl CC No.87/2013 Special Act come into force. Because of this prominent object, the Legislature has provided help to the victim child through prosecution agency and the Judiciary to protect the right of the victim child, specifically the prosecution in the form of investigation and to provide the materials for adjudication of matter, is issue under criminal law, to pass the Judgment.
13. The prosecution has come up with the specific case of committing aggravated penetrative sexual assault and murder of the victim girl aged about 4 years, i..e, below the age of 12 years and screening of the offence etc., committed by the accused, in the manner, revealed under the materials collected by the Investigating Officer i.e., the complaint, FIR, spot mahazar, evidence of the witnesses, medical reports of the victim girl and the accused and the investigation process duly proceeded with by the Investigating Officer. Though the charge-sheet witnesses are CWs-1 to 27, but, the prosecution has examined only PWs-1 to 12 and PWs-15 to 17 and 2 additional witnesses as PWs-13 and 14 and relied upon the documents i.e, Ex.P1-Statement/complaint of the complainant/mother of the victim girl/PW1 given before the complainant police; Ex.P2-Statement and Ex.P3-Further statement of PW4 given before the complainant police; Ex.P4-Statement of PW5 given before the complainant police, Ex.P5- Statement and Ex.P6- Statement given by PW6 before the complainant police, Exs.P7 and 8-Photographs of the deceased victim girl, Exs.P-9, 10-Photographs of places of incident, Ex.P11- Statement and Ex.P12- Further statement of PW7 given before the complainant police, Ex.P13-Statement and Ex.P14-Further 10 Spl CC No.87/2013 Statement of PW8 given before the complainant police, Ex.P15-Report given by PW10-Police Constable of the complainant police station regarding taking of FIR and placing it before 3rd ACMM, Bangalore; Ex.P16-Report given by PW11-PSI of complainant police station regarding apprehending of the accused and producing him before the Police Inspector of complainant police station; Ex.P17-FIR; Ex.P18- Inquest Report; Ex.P19-Spot panchanama where the dead body of the victim girl was found; Ex.P20-Post Mortem Report of the deceased victim girl; Ex.P21- Seizure Mahazar; Ex.P22-voluntary statement of the accused; Ex.P23- FSL Report ; Ex.P24-Another FSL Report; Ex.P25-Sample Seal; Ex.P25-Medical Certificate of the accused; Ex.P26- Report given by Sri.R.Ramesh-Police Constable [CW21] of the complainant police station for having taken the articles collected from the deceased victim girl from Victoria hospital and handing over the same to the Police Inspector of the complainant police station; Ex.P27-Acknowlegement given by FSL for having received the articles; Ex.P28-Passport given to PW15-Police constable of complainant police station for taking the sealed articles to the FSL; Ex.P29-Sketch of the house where the alleged incident of sexual assault was taken place. Exs.D1 to D3: Photographs referred to by the defence during the evidence of prosecution side, so as to explain that the place i.e., rented premises(Vatara) as Vatara was consisting of very small houses and a small passage. However, it is not in dispute.
11 Spl CC No.87/201314. The Material objects marked are: MO-1 Frock; MO-2:
Shorts; MO-3: Kacha; MO-4: Vaginal smear; MO-5: Vaginal swab; MO-6: Pubic hair; MO-7: Left hand nail scraping of the accused; MO-8: Right hand nail scraping of the ;; MO-9: Blood on filter paper .
15. Supporting their arguments, both the learned Public Prosecutor and the learned defence counsel have placed reliance on the decisions. i.e., the learned Public Prosecutor has placed reliance on the following decisions:
1) 2015(3) Crimes 84 SC: FIR improvements-Even if there is improvements over FIR, but, this improvement is not going to the core of the mater-then it is not fatal to prosecution.
2) 2015(3) Crimes 194 SC: FIR is neither meant to be an encyclopedia nor expected to contain all the details of the prosecution.
3) 2014(4) Crimes 165 (Bom.H.C) It is tendency of witness to exaggerate or make embellishment in deposition.
4) 2000 Cril.L.J 1417 SC [Ranadhir Babu Vs. State of West Bengal] Giving more details while deposing before Sessions court are not improvements of such a nature as would create any doubt regarding the truthfulness.12 Spl CC No.87/2013
5) 2015(3) Crimes 194 SC Investigation: Investigating Officer is not obliged to anticipate all possible defence and investigate in that angle. Any omission on the part of the Investigating Officer cannot go against the prosecution.
6) 2015 (3) Crimes 271 SC Hostile witness: Evidence of hostile witness is not completely effaced. Conviction can be based on s uch evidence , if corroborated.
7) (2010)2 SCC 445, 2012 (3) SCC (Cri)1200 [Ram Singh @ Chajju V.State of HP] Whether a ground to discredit testimony of victim-Rape case Blood stained clothes allegedly handed over to officer in charge at police station by husband of rape victim not sent for chemical examination-Effect- Held-victim had no control over investigating agency and negligence, if any of Investigating Officer could not effect credibility of appellant, held sustainable-penal code-Under Sec.376
8) 2001 Cri.L.J 2548 [SC] where medical examination clearly revealed that prosecutrix was raped, the plea of injury being caused by fall would not be fatal to the prosecution case.
9) 2006 (4) Crimes SC 57 Official witness: No prohibitates on conviction being recorded on basis of testimony of official witness if they are found to be trustworthy 13 Spl CC No.87/2013
10) (2016) 3 SCC (Cri) 426 B [Ajay Kumar Singh Vs. Flag Officer Commanding-in-chief] Lapse on part of prosecution while proving incriminating evidence-Held, criminal trials should not be made casualty for such lapses in the investigation or prosecution.
11) 2014(4) Crimes 266 (Knt] [M.D.Kohinuddin @ Phohinuddin Vs. State] Evidence of Investigating Officer cannot be suspected merely because he is a police officer or official. On the other hand, official duty performed by the police officer as a public servant bears a presumption under Sec. 114 of evidence Act.
12) AIR 2010 SC 2914 [E] U/Sec. 3 of Evidence Act:
Circumstantial evidence- False plea- can also be taken as circumstance against the accused-False and inconsistent defence taken by the accused charged of murder-Held to be additional circumstance against him strengthening the chain of circumstances already firmly found.
13) 2015(4) Crimes 72 (Patna H.C): Plea of alibi: Once, the defence raises of alibi, then by virtue of Sec.106 of Evidence Act, the defence takes the onus upon itself to prove the same because that is a fact within the special knowledge of the defence.14 Spl CC No.87/2013
14) 2009 Crimes 415 (SC) [Narendra Vs. State of Knt.] Crimes are generally committed in completed secretely inside the house it becomes difficult to the prosecution to lead evidence.
15) 2001 SCC (Cri) 504 [Chandrashekar Bhatt Vs. State of Maharashtra] Marginal variation between th statements of the prosecution witnesses recorded under Sec.161 of Cr.P.C and testimony given in court- cannot be said to be improvements made with any sinister motive and cannot be dubbed. No Public Prosecutor can be nailed to the statement recorded under Sec.161 of Cr.P.C
16) 1971 Cril.L.J 1764 [Mahinder Singh Vs. State of Punjab] Plea of alibi-Where the plea of alibi is set up and it utterly breaks down, it is a strong inference that, if the prisoner was not in fact where he says he was; then in all probability, he was where the prosecution says he was
17) (2017) 1 SCC (Cri.) 678 regarding of Sec.29 of POCSO Act, 2012.
16. On the other hand the learned defence counsel has also relied upon the following decisions reported in:
(A) AIR 1989 Supreme Court 1141; [ Gopal Saran Vs. Satyanarayan] Evidence Act-Secs. 137, 138-Party not subjecting himself for cross-examination in spite of 15 Spl CC No.87/2013 order of court-it is not safe to rely on examination-in chief (B) 2017(1) Crimes 263 (Del) [Vishal Vs State] Last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.
(C) 2016 (1) Crimes 732 (Raj) [State of Rajasthan Vs. Pema Ram] Conviction cannot be recorded where prosecution story is weak on all counts (D) 2015 (4) Crimes 27 (SC) [ Nizam and another Vs. State of Rajasthan] For conviction of accused circumstantial evidence the circumstances should be fully proved and conclusive in nature, complete, forming a chain without any gap, such proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his evidence. (E) 2013 (1) Crimes 108 (Ori) [Jjanmajaya Bhoi Vs. State of Orissa] Suspicion however strong cannot take place of proof"
(F) (2003) 8 Supreme Court Cases 180 [State of Rajasthan Vs. Raja Ram] B-Criminal Trial "Circumstantial e= meaning- conviction solely on the basis of such evidence-held, permissible inference of circumstances 16 Spl CC No.87/2013 are found to be incompatible with the innocence of the accused or the guilt of any other person thus the circumstances have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances".
(G) 1988 Cri.L.J 1453 [Suk Bahadur Subba Vs. State of Sikkim] Evidence Act, S.3-Appreication of evidence Charge under Sec.376 read with S.511 of IPC-Evidence of victim tutored by so called eye witness-Material witness withheld by prosecution-Medical evidence not supporting prosecution case- Eye witness putting undue pressure on victim and victim's father to prosecute accused-Eye witness cannot be said to be independent witness-guilt of accused not proved beyond reasonable doubt-accused acquitted".
(H) 2016(1) Crimes 94 (SC) [Mangu Singh Vs.Dharmendra & Anr.] The defence needs to only establish its case based on probability, whereas the prosecution has to prove the guilt of the accused beyond reasonable doubt.
17. It is material fact that, PW1/ complainant/mother of the victim girl used to take her 2 children in the morning at 9 A.M., to Anganwadi school located in Kodichikkanahalli and go to her work and return back at 4 P.M., and the said school was upto 3 P.M., and hence, the complainant had made arrangements with PW3[CW9] Bhemmamma who was referred as Aayamma who was 17 Spl CC No.87/2013 also going to the Anganwadi school and said Bhemamma used to take care of the children of the complainant by keeping them in her house located in the rented premises belonging to Bhagyamma- PW8 called Vatara and that after returning from the work, the complainant used to bring her children to her house located in 8th Cross of Kodichikkananalli, and that the house of PW3 was located in the Vatara owned said Bhagyamma & Vatara was consisting of 8 rented premises, each having small area. The complainant as PW1(CW1) deposed that she was residing with her elder sister and her sister's husband, who were also going to work outside. As usual, on 11.2.2013, the complainant went to the house of PW3-Bheemamma at 4 P.M., so to bring her children. The 2nd daughter of the complainant was sleeping in the house of Bheemamma. But, the victim girl-elder daughter of the complainant, was not traced in the house of PW3-Bhemamma and Bheemamma told that, the victim girl might be playing outside. Inspite of making efforts, the victim girl did not traced out till 6-7 P.M. During the course of evidence, PW1/complainant has specifically stated that, as her daughter[ victim girl] was not traced out, hence, she went to the police station and the police advised her to bring the photo of the victim girl, so that, they can trace out the missing victim girl. It cannot be an improvement, on the ground that, it was not stated in the complaint. It is rather explanatory and natural. Hence, it is not fatal to the prosecution to disbelieve that, it was a false case, as an improvement. This explanatory facts are admissible in evidence.
18 Spl CC No.87/201318. On the next day early in the morning, the complainant went for search her daughter/victim girl, along with her mother, specifically towards the house of PW3-Bheemamma so that, she can trace out the victim girl, if anybody brought her back to the house of PW3. But, it was not so happened. Thereafter, the complainant went in search of her daughter/victim girl and found the victim girl in an open space adjoining to the house of PW7-Marappa, which is located in 2nd Cross of Kodichikkanahalli area she [PW1] further stated that,, it was under Banyan tree; and she thought that the victim girl was sleeping; and took the victim girl to her house. About the condition of child found, the complainant [PW1] explained that, there was scar marks around the neck of the victim girl and it was bleeding from the private part of the victim girl, and that it was informed to the police and she filed the Complaint as per Ex.P1[ Ex.P1(a) is her [complainant] signature].
19. PW1 further deposed that, the police after her lodging the complaint, came to her house and visited the spot and photographs were taken. The dead body was taken to the Victoria Hospital for post-mortem and thereafter they traced out the accused after 3 to 4 days; and that, she came to know that, the accused inducing the victim girl of giving chocolate, he committed sexual assault and murder of her daughter. She [complainant] saw the accused in the police station. She identified the frock and pant of the victim girl, which are marked at MOs-1 and 2.
19 Spl CC No.87/201320. So, also the mother of the complainant examined as PW2 [CW2] by name Sarojamma. She deposed about the residence of PW1/complainant along with two daughters of PW1 i..e the victim girl and younger daughter. PW1 used to take her children to Anganwadi School and she [PW2] along with PW1 were going to work, and since they were returning back late, hence, ayamma was keeping the children of PW1 in her house and about 1 ½ years back, i..e, on the incident day, when they [PW1 and PW2] returned back form their work place at 4 P.M., they did not find the victim girl and on the date of incident, when PW1 went to bring the victim girl from the house of PW3-Bheemamma, the victim girl was missing and inspite of search, the whereabouts of the victim girl were not traced out; and that they [PW1 and PW2] approached the police; and the police on that day, advised them to bring the photo of the victim girl and that on the next day in the morning; they [PWs-1 and 2] went for searching the victim girl, to the house of PW3 and PW3 also told them that, nobody brought the victim girl. Hence, PW-1 and PW-2 searched for the victim girl nearby and they traced out the child on the heap of soil in the open site. They thought that the child was unconscious. They took the child and saw that there were scar marks on the neck of the child and there was bleeding in the shorts worn by the child and they brought the child to their house at 8th cross and informed the police. Thereafter the police took the dead body. She further deposed that, when they [PW1- and PW-2]used to take the children from PW3, she saw that, the victim girl used to eat the chocolates and on questioning the victim girl, she used to tell that, Mahesh uncle gave her the chocolates and when they asked as to who was 20 Spl CC No.87/2013 Mahesh, the victim girl used to show said Mahesh. The said person [Mahesh] is none other than the accused. PWs-1 and 2 have identified the accused.
21. PW3 [CW9]-Bheemama, is considered to be one of the material witness. She deposed that, she used to go to Anganwadi school to leave the children, and that PW1 was also coming to Anganwadi School to leave her children and she[PW3] used to bring back the children of PW1 from the school to her house and taking care till WP1 returned back from her work place and the children of PW1 were playing staying in vathara and PW1 used to take her children from her [PW3] house after returning back from her work place. On the date of incident, at about 5. 00 P.M., PW1 came to her [Pw3] house and asked for her child and she told that, the victim girl was playing outside Till 8 to 8.30 P.M., the child was not traced out. Therefore, complaint was lodged and she [PW3] came to know that, the child was thrown inside the drain which was located behind her house and Ayyappaswamy temple and it was murdered. PW3 further deposed that, the accused was used to play with the children and also giving meals etc. But, when the case was posted for cross-examination, this witness [PW3] did not turn up and she has been discharged. The learned counsel for the accused has specifically argued that, this witness [PW3] being the material witness has failed to subject herself for cross-examination and her evidence given as chief examination, has to be discarded and it cannot be considered as clinching evidence. It is true that, this PW3 has been discharged. But, admitted facts about her residence in the Vathara and the accused was also had his rented 21 Spl CC No.87/2013 house in that Vathara and manner in which she used to keep the children of PW1 with her till PW1 return back from her work place etc., have not been disproved and other independent witnesses have supported the same.
22. PW4[ CW10] Sahira Banu who is the resident in Bhagyamma Vatara and she turned hostile to the prosecution case in connection with the incident. But, she deposed regarding her residence in the said Vatara and the accused was also residing in a house in the same Vatara and that, PW1 used to take her children to Anganwadi school and that, PW3 was residing in the same Vatara of Bhagyamma and she [Pw3] used to bring back the children of PW1 and used to keep in her house, until PW1 returned from her work. She [PW4] deposed about the residential house and the residence of the accused which is situated at a distance of about 3 to 4 houses from the house of PW4, because of that, she was knowing the accused. She came to know about the incident that, the victim girl was victimized by the accused who committed the said offences and her dead body was thrown at the place of incident where the dead body of the victim girl was found by PW1. it is informed by her [PW4] husband and hence, she [PW4] is not direct witness and she turned hostile to the prosecution case. Her evidence is relevant regarding the stay of the accused in the said locality specifically in one house of Vatara belonging to Bhagyamma[PW8]. But, she [PW4] denied the prosecution case that, "on 11.2.2013, at about 5 P.M., when she was in front of her house, the accused was talking with the victim girl and he was playing with the children. As she [PW4] had to go 22 Spl CC No.87/2013 to her relatives house, hence, by locking her house, she went away and accordingly, she gave Statement before the police as per Ex.P2;. So also on 14.2.2013, the police called her [PW4] to the police station for identification of the accused and she identified the accused in the police station and accordingly, she gave her further statement as per Ex.P3.: Thus, these material facts regarding the last seen of the accused with the victim girl through this PW4, being not supported, cannot be fatal to the prosecution case. But, circumstances brought through this witness are relevant to link the chains.. However, location of her [PW4] house and residence of the accused in the same locality and PW1 arranged to leave her children in the house of PW3 and the place of dead body found etc., are not shaken. Therefore, to that extent, the evidence of PW4 have to be considered as relevant and clinching evidence.
23. It is also notable point that, during the course of cross- examination, it was suggested to her [PW4] by the learned defence counsel that, the accused was having good behaviour, but, this witness gave answer which reads thus:
"DgÉÆæ M¼Éî ¸Àé¨sÁªÀzÀ ªÀåQÛ JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀgÀÄ "M¼ÉîAiÀÄ ¸Àé¨sÁªÀzÀ ªÀåQÛ EgÀ§ºÀÄzÉAzÀÄ CAzÀÄPÀÉÆArzÉݪÀÅ."
The learned Public Prosecutor has rightly argued that, it is not supporting the suggestion stating that, the accused was a person of good behaviour. Thus, such answer was duly supported the prosecution about the mental condition of the accused linking the incident that, the accused was having 23 Spl CC No.87/2013 urge of satisfying his lust. It corroborate the voluntary statement of the accused recorded by Investigating Officer-PW12 about his condition on seeing the victim child, alone in the passage of said Vathara, to use her.
24. Subsequent statement if considered, she [PW4] stated that, the accused was going to his work and returning back and this much is known to her [PW4]; She too was going to her work in the morning at 9 A.M., and returning back at 5.30 P.M in the evening and on the particular day, she came back to the house at 5.45 P.M. Therefore, from this cross-examination, of PW4, nothing can be gathered, as it was rebutted, in connection with the relevant facts brought on record through this witness regarding the residential place of the accused and the manner in which PW1 used to bring her children from PW3, after the school hours by leaving them with PW3 in her house i..e., keeping them with PW3, till she [PW1] returning back from her work place to take back her children to her[PW1] house. She [Pw4] has supported the prosecution case, that the accused was having residence in the rented premises of Bhagyamma Vatara consisting of small houses located in such a way that, it is therefore called as Bhagyamma's Vatara, which is located in 2nd Cross, near Ayyappa Temple, Kodichikkanahalli. Though she [PW4] has turned hostile to the prosecution case, but, the residence of the accused in the same area in the Vatara belonging to Bhagyamma, remained undisturbed. Her evidence is therefore relevant and proved. She [PW4] has not expressed good opinion about the accused with regard to the suggestion put to her. She stated that, the accused 24 Spl CC No.87/2013 was going to work, which supports that, the accused was residing in a rented premises of PW8 [Vathara] as on the date of incident i.e, on 11.2.2013.
25. PW5[CW3] Lalitha, was also working in Garments. She has deposed about the acquaintance with PW3; and that. The accused was residing in a house of Bhagyamma Vatara where, she[PW5] was residing and that, the accused was working in the factory in 3 shifts, but, she shown ignorance about the timings of such shifts. Her evidence is also hear-say evidence. She deposed that, about 2 years back, she came to know that, one day in the morning in between 9 A.M., to 10 A.M., a child was raped and murdered and was thrown in the open space. But, she [PW5] too also turned hostile to the prosecution case specifically the statement recorded by the Investigating Officer during the investigation, under Sec.161 of Cr.P.C that, on the date of incident, the accused was wandering here and there in the said lane with fear and about the behaviour of the accused etc. However, she [PW5] deposed about the residence of the accused i.e, the place where the rape was committed. It was declared her [PW5] as hostile witness. It is disclosed from her evidence that, PW3 was keeping the children of PW1 with her [specifically the victim girl] in the house. This fact was made known to her[PW5] through the daughter-in-law of PW3, as she was going to work along with this witness[PW5]. But, PW5 also turned hostile to the prosecution case regarding the incident dated: 11.2.2013 that, "PW3 had brought the victim girl to her house and at 4 P.M., as the mother of the victim girl came there and the victim girl was 25 Spl CC No.87/2013 missing; on the next day at 6 A.M., there was noise, as the mother of the victim girl and her relatives were weeping; and the dead body of the said victim girl was lying in the open site adjoining to the house of PW7[Marappa]; There were injuries around the neck of the victim girl; and she [PW5] came to know that, the victim girl was killed by throttling [pressing her neck]. Accordingly, she [PW5] gave her Statement in this connection as per Ex.P4'. Thus, though PW5 turned hostile in this regard, but, she gave admission that, the victim girl was taken by PW3 to her house and residence of the accused was in the vatara. Supporting that the accused was there on the date of incident. In connection with the statement recorded further by the police on 14.2.2013 was denied that, "the police had called her [PW5] to the police station for identification of the accused". She has spoken on putting suggestion that, the police have shown the accused on calling her to the police station, . She deposed that, the accused was brought near to the house and it was enquired by the police. Thus, fact admitted is that, on 14.2.2013, the accused was apprehended by the police. While putting suggestion to PW5 regarding the behaivour of the accused, as on the date of the incident that, "the accused was opening and closing the door of his house and wandering here and there and that, he was standing with fear and that such behaviour of the accused was noticed by this witness [PW5]," etc. She [PW5] deposed that the accused was behaving like that always. He always doing like that of wandering here and there and standing nearby the Temple and she further admitted that, on the date of incident, she noticed the accused that, he was standing near the Temple. But,s he did not deny the same. His such behaviour with fear was 26 Spl CC No.87/2013 remained undisputed. It was only after the incident. This evidence of PW5 cannot be an improvement. But, explanatory and it cannot be discarded. So such behaviour of the accused was unnatural, on that date of incident. Thus, the prosecution is able to bring on record that, the accused was there in the place of incident on 11.2.2013 at 4 P.M., and onwards. So, the argument of the learned Public Prosecutor has to be accepted the proof of the abnormal behaviour of the accused leading to the clue of his offence. She [PW5] further admitted that, on the date of incident, she noticed the accused that, he was standing her the Temple; and as he was far away for her [PW5], hence, she cannot say whether the accused was afraid or not. But, her [PW5] evidence is that, "she came to know that the accused by inducing the child, offering chocolate, took her to his house and committed rape and killed her by throttling and during the midnight, he took the dead body of the child and threw it in the open space, nearby his house" . However, in this connection, her [PW5] evidence is hear-say. But, regarding the behaviour of the accused on the particular day after the incident, it is relevant. It is revealed that, she [PW5] has not specifically denied that, "the accused was under fear". . To some extent, her evidence supported about the condition and behavior of the accused on the particular day of incident after 4 P.M., onwards. From her cross-examination made by the learned defence counsel, it is revealed that, she [PW5] used to go to work in the morning at 6 A.M., and return back at 2 P.M. She admitted the defence suggestion that, "as the police informed the incident, she came to know about the incident". But, the relevant facts deposed by her [PW5] about the behaviour of the accused has not been disputed 27 Spl CC No.87/2013 and not duly rebutted by the accused. It supports the prosecution case that, on the date of the incident, after 4 P.M., onwards, the accused was under fear, and present in the place of incident..
26. What is revealed from the evidence of PW6[CW12] Susheela, who was also working in the Garments, is about her residence and the residence of PW3 in the Vatara of Bhagyamma and the accused was also the resident of the same Vatara. However, she has shown ignorance about the deceased. However, her evidence is very relevant that, about 2 years back, she had been to her native place and returned back at 5 P.M., on the date of incident. On the next day, in the morning at 6 A.M., she heard the crying of the mother, sister and grandmother of the victim girl. Hence, she [PW6] went to the spot where the dead body was lying. But, by that time, the child was taken away from that place. This part of her version was not challenged and contraverted by defence side. Thus, she also deposed about the facts that, the dead body was lying on the said spot i.e, the open space adjoining to the house of PW7 and also the residence of the accused and PW3 in the said Vatara. But, she turned hostile in connection with the incident. Of-course, she [PW6] too was hear say witness. She denied the suggestion put to her by the learned Public Prosecutor after she declared as hostile witness, specifically the incident dated: 11.2.2013 that, the accused used to talk with the victim girl and playing with her and he was in fear and closing and opening the doors of his house and standing in front of his house and while asking about his such behaviour, he told nothing; and that she [PW6] noticed " the dead body on the said spot of open 28 Spl CC No.87/2013 site and the injuries caused around her neck etc., and accordingly, she [PW6] gave her statement as per Ex.P5". However, it does not affect the relevant facts as discussed supra. Her evidence to the extent of admitted fact has to be considered and her entire evidence cannot be discarded. Even she has denied further Statement regarding the identification of the accused in the police station on 14.2.2013 and gave her Further Statement as per Ex.P6.
27. During the course of cross-examination by the learned defence counsel, the relevant facts brought on record and they are supporting the prosecution case. It has to be considered as proved facts linking the accused. She [PW6] has explained about the residence of the accused in the said Bhagyamma Vatara by answering the question put to her by the learned defence counsel that, "there were 3 persons residing along with the accused in his house" and she deposed that, prior to the incident, 2 persons left the house of the accused and the accused alone was residing in his house and remaining 2 persons were visiting the house of the accused. But, there is no specific names and addresses of such 2 persons who were visiting the house of the accused etc., and it has not been brought on record. It is therefore, vague suggestion. How it is helpful to the defence, has not been explained. Thus, the fact that the accused was the resident of the said place of incident [house of accused] is the proof that, the accused was residing there, on the date of the incidence. Of course, the said houses are small. It is admitted by PW6 that, if there is galata, the neighbours will hear the sound. But, how it is helpful for the defence, has not been brought on record from this witness or other witnesses. Even 29 Spl CC No.87/2013 question is put to this witness [PW6], whether the shouting sound was heard, she gave answer that, on the date of incident, shouting sound was not heard, which support that, the accused was there in his house at that time of incident. These suggestions very well gave support the manner in which, the accused committed the sexual assault on her [victim girl] person by pressing her neck. It is corroborative to the confessional statement of the accused. How one could guess that, the unfortunate child would cry or shot for help to rescue from the accused.
28. It is not the prosecution case that, there was occasion for the victim girl to shout. But it is the specific case of the prosecution and also the voluntary statement of the accused, that, he induced the victim girl by offering chocolate [as because the victim girl was 4 years child and yielding to inducement, which would be natural for a child]. It cannot be expected that, such a small child by taking the chocolate, would shout, as the accused was known person to the victim girl. So also, it is the further case of the prosecution that, by offering the chocolate to the victim girl, the accused took her inside his house for his lust and thinking that, she would shout, he throttled her neck with his hands and had committed aggravated penetrative sexual assault also. Thus, question of shouting of the victim girl how could be it expected. It is also relevant to observe that, how can one could guess that, there was occasion for unfortunate child to shout, so that, she could get help and rescue from the clutches of such a unhuman assailant, which was cruel assault. Thus, by this suggestion, indirectly, supported the prosecution. It is considered to be 30 Spl CC No.87/2013 admission in favour of the prosecution that, the accused had committed rape on the victim girl and murdered the victim girl, by pressing her neck to satisfy his lust, which discloses the criminal mind of the accused to commit rape and murder of the victim girl. From this also, it is clear that, the accused was with criminal mind, had committed criminal act.
29. Now coming to the evidence of PW7[CW16], by name Marappa, whose house is adjoining to the open site. It was open space, where the dead body of the victim girl was lying. He deposed about the acquaintance with Bhagyamma-PW8 owner of the Vatara. He was also having his house and doing business of retail shop. He had a site located in the 2nd Cross and he constructed 5 sheet houses and he too also let out the said houses to others. The open site where the dead body was lying was adjoining to his house. The said site was consisting of heap of soil and stones and it was unused site. From his evidence, with reference to the place, one can gather that, it is a lonely place and cannot be considered as a public place. So, one cannot go there. It is therefore supported the prosecution that, the accused took that advantage of throwing the dead body of the victim girl.
30. PW7 has further deposed that, he used to attend his work in the shop from 6 A.M., in the morning till 9 P.M., in the night and there would be traffic till 10 to 10.30 P.M., during the night. Thereafter, there will be no traffic on the road. It refers to the said area where the accused was residing i.e., the rented premises of Bhagyamma [Vatara]. There is no cross-examination 31 Spl CC No.87/2013 on this point regarding the traffic on the road upto 10.30 P.M.. It is not disputed. PW7 was returning to his house at 9 P.M., during night. But, he has specifically stated that on the next day of the incident, in the morning at about 7 to 8 A.M., there were talks that, dead body of a girl child was lying on the open site. He went to that place, at that time, public and police were there. He shown ignorance how the child was died. He did not see the dead body at the said spot. Thus, he has turned hostile to the prosecution case. However, his evidence is a hear-say evidence in connection with the incident. He has not identified the photographs at Exs.P7 to P10, nor he has identified the accused in the police station; He denied that, he gave any statement before the police. Hence, he was declared as hostile witness. On putting suggestion by the learned Public Prosecutor, it is secured the admission of PW7 that, "on 12.2.2013, at about 6.15 A.M., the dead body of the girl child was lying on the open site adjoining to his house". But, he denied that, he saw the dead body and the injuries on the victim girl's neck and in that connection, he gave the statement before the police as per Ex.P11 etc. Even he has denied that, "the police called him to the police station on 14.2.2013 and he gave further statement identifying the accused in the police station and that, he[accused] was the person who caused the death of the victim girl by committing rape on her and by manually strangulating her neck and throwing the dead body on the open site". He denied that, "he has given his statement as per Ex.P12", The learned defence counsel has not cross-examined this witness. However, from the evidence of hostile witness, the relevant facts which are supporting the prosecution case are to be considered to be proved 32 Spl CC No.87/2013 facts, through this witness also i..e, about the location of Bhagyamma's rented premises and residence of PW7 in the same locality i.e., 2nd cross road, Kodichikkanahalli and open site which was kept unused having no public access, and busy locality till 10 to 10.30 P.M, and also place of dead body found on the open site at 6.15 A.M., on 12.2.2013 etc. However, rest of things, he denied. Though, his evidence is a hear say evidence, but, these facts are linking factors to the main stream, pointing out the accused that he was involved in committing the said offences.
31. Now coming to the evidence of Bhagyamma- PW8[CW15], who is the landlady of said Vatara. No-doubt, she also turned hostile to the prosecution case in connection with the incident that was caused by the accused by committing rape and murder and throwing the dead body on the open site. However, from her evidence certain material facts are brought on record by the prosecution that, the accused was also residing in one of the rented premises belonging to her [PW8], out of 8 houses, which were leased out to different persons and , specifically it is called as 'Bhagyamma Vatara'. Of course, she was not residing in any of the house, as she was residing in another house in the same locality. She knew PW7, who also constructed houses and let out the same to the tenants and was having retail shop in his house, in the same locality. She further stated that, accused and CWs-9 to 12 were residing in the rented premises belonging to her. Of course at this stage, the defence raised is that, the rented premises are owned by the husband of PW8. But, from the evidence of PW8, it is revealed that, about 7 years back, her husband died. So, it is 33 Spl CC No.87/2013 quite natural, that she [PW8] being his wife might have been succeeded to the property of her husband. Apart from this, she was referred as owner and the land lady. These rented premises belongs to her and she has let out the same to different persons including the accused, are the admitted facts.
32. PW8 evidence is very much important to consider certain facts, as the prosecution has brought on record, which is linking chain of events, though she [PW8] has turned hostile to the prosecution case. The relevant facts are that, Bheemamma [PW3] was residing with her son in one of the tenanted premises of this witness and that, PW3 was going to Anganwadi school for sweeping. She disclosed that, except this, she does not know what were the work/ activities of Bheemamma. However, from her [PW8] evidence, one thing is brought on record that, Bheemamma was going to Anganwadi School, during the month of February-2013 and specifically that, 2 days prior to the incident, the mother of the victim girl was leaving her daughter/victim girl in the house of Bheemamma. She shown ignorance whether PW3-Bheemamma was looking after the victim child in her house, as because, she [PW8] went to her mother's house and she returned back one week after the incident and that she came to know that, the accused had committed the said offences i.e., rape and murder of the victim girl and throwing the dead body of the victim girl on the heap of soil in the open site, screening himself of the offence. She [PW8] admitted that, she gave her statement before the police in this regard. But, she did not went to the spot nor seen the dead body. She was shown the photographs-Ex.P7 and Ex.P8 which are 34 Spl CC No.87/2013 the photographs of the child, she did not deny the identity of the child that was revealed in the said photographs. But, what is disclosed from her evidence is that, she did not see the dead body of the victim girl. However, she has identified the site revealed in Ex.P10, which is nothing, but, the spot where the dead body was found by PW1 and from where PW1 took the dead body to her house. It was on the next date of incident at 6 A.M., and onwards Thus, these certain admitted relevant facts are brought on record through this witness, which are very much supporting the case of the prosecution regarding the residence of the accused in the said rented premises, specifically the place of fatal incident and the manner in which PW3-Bheemamma was receiving the child/victim girl from PW1, in the month of February-2013, i.e., prior to the said incident. After declaring her [Pw8] as partial hostile witness and cross-examining her by the learned Public Prosecutor, she has given material admission that, PW3-Bheemamma was taking her grand-daughter by name Keerthi to Anganwadi school in the morning at 9 A.M., and she was returning back at 2 P.M. So also, PW1 residing in the same area at 8th Cross, was having 2 female children and she was also sending them to Anganwadi School. As she [PW1] was going to work, PW3 used to keep the daughters of PW1 in her house and that after completion of work, PW1 on retuning back, she used to take her children to her house and that, it was told by the very PW3. Thus, it is clear admission regarding the manner in which PW1 used to leave her children with PW3 in her house, after the Anganwadi School hours, till, she[PW1] returns back from her work place. But, she [PW8] denied the facts that were alleged to be known to her, on the date of incident that 35 Spl CC No.87/2013 "on 11.2.2013 that, she [PW8] was in her house only and she went towards the rented premises [Vatara] at 6 P.M., in the evening and by that time, PW1 was there and was asking PW3 about the whereabouts of her daughter i..e, the victim girl and inspite of her search, her daughter/victim girl was not traced out till night and thereafter on the next day that, on 12.2.2013, in the morning at 6 A.M., PW1 was shouting stating that, her daughter/victim girl was lying dead and that she [PW8] went to the open site, where the dead body was lying and she noticed the injuries around the neck of the victim girl" etc. Thus, these suggestions are denied. While putting suggestion to this witness [PW8], that Exs.P7 and P8 are the photographs of the dead body of the deceased victim girl, her answer was that, she did not see. This discloses that, she has not denied the child seen in the photographs, relating to the dead body of the victim girl. Of-course she [PW8] denied the suggestion that, she gave her Statement before the police, as per Ex.P13.
33. It is also tried to bring on record regarding the identification of the accused that, after arresting the accused on 14.2.2013, she [PW8] was called to the police station and she was shown the accused. But, she denied the suggestion in this connection that, she identified the accused in the police station and that "he was the culprit who had committed rape on the victim girl on 11.2.2013 when he was in the Vatara i.e., in the rented premises belonging to her [PW8] and by inducing the child of offering the chocolates, he [accused] took the child inside his house and committed rape on her and pressed her [victim girl] neck with his hands, and commit murder and that he threw the dead 36 Spl CC No.87/2013 body of victim girl in the open site" and accordingly she [PW8] has given her " Statement as per Ex.P14 before the police" etc., However, her [PW8] evidence is also hear-say, but, as per the above referred factors, it is supporting the prosecution case with reference to certain facts, as considered above. It is material to note that, inspite of providing reasonable opportunity, the accused has not availed the opportunity to cross-examine this witness [PW8] through his counsel. The hostile version of PW8 does not fatal to the whole case of prosecution. But, relevant facts are proved the case. The admitted facts remained is undisturbed and they are relevant facts to link the accused towards the offence committed by him, subject to consideration of other relevant material evidence as already discussed above and also with reference to the evidence of official witnesses specifically Investigating Officer-PW12, who has conducted thorough investigation and the medical evidence, which are material to be evaluated with due care.
34. Now, coming to the evidence of the official witnesses specifically PW9 [ CW24] by name Chikkavenkatashetty- Head constable of Bommanahalli police station, PW10[CW20] by name Chandra-head Constable of Madiwala police station and PW11 [CW22] by name Srinivas.G.T., Police Inspector. PWs-9 and 11 have deposed that, on 14.2.2013, as the Investigating Officer-PW12 engaged them to trace out the accused and on credible information, they apprehended the accused at Bommanahalli Circle at 12.30 P.M., and brought him to the police station at 1.30 P.M., and produced him before the Investigating 37 Spl CC No.87/2013 Officer. Thus, the accused was not brought to the police station from his residential place, i.e., one of the rented premises of PW8. PW11 deposed about apprehending the accused and submitted his Report as per Ex.P16, to PW12. PW10 has deposed that, as per the instructions of PW12-Investigating Officer, he submtited the FIR and Complaint to the 3rd ACMM, Bengaluru and given his report as per Ex.P15, to PW12.
35. Now, coming to the evidence of the Investigating Officer- PW12, he has deposed about receiving of the complaint from PW1 on 12.2.2013 and registering the case in Cr.No.112/2013 and he sent the FIR through HC-PW10/CW20 to the court, in turn, who has submitted Report in this regard as per Ex.P15. PW12 being the Investigating Officer has conducted investigation thoroughly and that as he was transferred, he has handed over the charge to CW27. He deposed as PW17 that, on 3.5.2013, since materials are collected by PW12, hence, on verifying the records and materials collected, which are incriminating against the accused, he [PW17] has submitted the charge-sheet to the court, against the accused.
36. PW12 has further deposed that, PWs-9 and 11 have apprehended the accused and produced before him. With due procedure, he [PW12] arrested the accused and subjected to enquiry and that, the accused has given his voluntary statement admitting the incident and gave incriminating statement stating that, he would show the place where from he lifted the victim girl i..,e the house where he sexually assaulted and killed the victim girl and the place where he threw the dead body of the victim girl.
38 Spl CC No.87/2013His [accused] voluntary statement reveals that, he took her from the passage of rented premises[Vatara] and took her inside his house by offering her chocolate and that, as he thought that the victim girl would shout, he pressed the neck of the victim girl and committed aggravated penetrative sexual assault on the victim girl and the unfortunate victim girl was succumbed to death by throttling and that he [accused] kept the dead body of the child in his house till midnight and thereafterwards, in the midnight, he threw it on the heap of soil in the open site and on the next date early morning went to his work [Ist shift] and after his work, he [accused] came to know about police enquiry, he was absconded from the place of occurrence and started to stay outside, specifically in the Hotels and he was apprehended by the police on 14.2.2013, at Bommanahalli Circle. From this it reveals his conduct after the incident, that, he was away from the place of occurrence. His [accused] incriminating Statement is marked at Ex.P22.
37. PW12 has further deposed that as per his direction, Police Constable-PW15 [CW25] submitted 13 articles on 15.3.2013, for FSL examination to FSL Office, Madiwala with Passport as per Ex.P28 in that regard and returned back with Acknowledgement of the FSL Office as per Ex.P27.
38. PW12 has further deposed that, on the same date of registering the case on receiving of complaint i.e., on 12.2.2013, he visited the house of PW1 and conducted inquest on the dead body of the victim girl, as PW1 and her mother-PW2 brought the dead 39 Spl CC No.87/2013 body of the victim girl to their house from the said place where the dead body was found [open site]. PW12 secured panch witnesses i.e., CWs-4 to 6. It is relevant from his evidence that, PWs-1 and 2 explained that, they brought the dead body of the victim girl from the said place to their house. It is rightly argued by the learned Public Prosecutor which is acceptable also and hence, at this juncture, necessary to consider the condition of the mother who lost her daughter and found the dead body of her daughter in such a manner on the open site, it is quite natural that, she might have brought the dead body without knowing the legal consequences of criminal proceedings. It is the natural conduct of a mother and hence, it is not fatal to the prosecution case. However, PW12 being the Investigating Officer has considered conducting of inquest of the dead body. Even PWs-3 to 8 as per the above discussions, in their evidence directly and indirectly, have supported the prosecution case that, the dead body was found on the said open site in such a manner, as that, she was made it to die by cruel treatment.
39. It is at this juncture, necessary to consider that, the panch witnesses-CWs-4 to 6 are not brought on record for recording of their evidence. It is important to note that, my predecessor-in-office has passed the order dropping their evidence, on being given reasonable opportunity. The observation made is that, the prosecution though was given reasonable opportunity, to secure the presence of Inquest Mahazar [Ex.P18] witnesses and their evidence ought to be brought on record, but, failed to examine them. However, by such an order in their absence, it cannot be 40 Spl CC No.87/2013 fatal to the prosecution case. On the basis of the available materials on record, it can be dealt with against the accused. The place where the dead body of the victim girl was found has been proved by the very evidence of complainant and her mother-PW2 and other witnesses, as discussed above. There is no material placed by the defence side to discard the evidence placed by the prosecution side regarding the dead body of the victim girl found on the said open site. PW12 has specifically stated that, in the presence of CWs-4 to 6, he has conducted the inquest of the dead body as per Ex.P18 from morning 9 A.M., to 12.30 P.M. He has spoken about the condition of the dead body of the child, which can be believed. .
40. PW12 has further referred the materials in connection with Ex.P19 i..e, the place shown by PW1 i.e, the open site where the dead body of the victim girl was found. He conducted spot mahazar as per Ex.P19 in the presence of CWs-7 and 8. it is adjoining to the house of PW7. It is also spoken by the very witness-PW7 that the dead body of the victim girl was found at 6 A..M., on 12.2.2013 in the said open site. It is revealed about conduct of PW1 that, thinking that, unknown person threw the dead body of the victim girl by killing and PW1 took the dead body to her house. Therefore at the time of Mahazar-Ex.P19, it was not a public place, where the dead body was found. But, the witnesses as referred above [PWs-3 to 8] have directly and indirectly submitted that, PW1 and her mother-PW2 were there at the said open site in the morning of 12.2.2013, when they found the dead body of the victim girl at the spot and took it to their 41 Spl CC No.87/2013 house. Therefore, non-examination of panc witneses-CW7 and CW8 is not fatal to the prosecution regarding the Spot Mahazar- Ex.P19. PW1 has also supported it and thus, evidence of PW12 is corroborated with the evidence of PW1 regarding the open site where the dead body of the victim girl was found by PWs-1 and 2, and that it was shown by PW1 to the Investigating Officer at the time of Ex.P19.
41. PW12 has deposed further that, he has recorded the statements of witnesses- CWs-2, 3, 13, 15 and 16. However, he has specifically stated that, PW4 has given her statement as per Ex.P2, PW5 has given her statement as per Ex.P4, PW6 has given her statement as per Ex.P5, PW7 has given his statement as per Ex.P11 and PW8 has given her statement as per Ex.P13. Since to that extent, these witnesses have turned hostile to the prosecution case, which is already discussed as above, however, their entire evidence cannot be discarded, as certain material facts are brought through these witnesses on record and they are material to the relevant facts and the fact in issue pertaining to the offence of rape and murder of the victim girl and throwing her dead body on the open site.
42. PW12 has further deposed that, he has received the post mortem report on 14.2.2013, which is marked at Ex.P20 and his specific evidence in this connection was that, as the post mortem report disclosed that the victim girl was died of manual strangulation and rape. Because of this material record i.e., Post Mortem Report, he proceeded with investigation by adding the 42 Spl CC No.87/2013 provisions of Secs. 363, 376, 201 of IPC and Secs. 4 and 6 of POCSO Act, 2012 along with Sec.302 of IPC, as the deceased victim girl was aged about 4 years. He deposed that, on the same date i.e., on 14.2.2013, he deposed that, CW24 and CW22 [PWs-9 and 11 respectively] apprehended the accused. PW11 has reported before PW12 as per Ex.P16. Thereafter, he [PW12] arrested the accused with due procedure and recorded the voluntary statement of the accused, which is incriminating against him, as per Ex.P22. Accordingly, PW12 has further stated, that he secured the panch witnesses and at the instance of the accused, he went to his house on the same date i.e., on 14.2.2013 and conducted mahazar at the 3 places as per Ex.P21 from 4 P.M. to 5.30 P.M. He took the photographs as per Exs.P9 and P10, in which the accused was showing the places i.e., the passage where from he took the victim girl inside his house by offering chocolate and the house, where he has committed the rape and murdered the victim girl and the open space where he had thrown the dead body in heap of soil of the open site. The place shown by the accused. The open site is tallying with the open site referred to in Ex.P19-Spot Mahazar. The accused gave his voluntary statement stating that, he would show the said places and his undergarment [i.e., kacha] MO-3 which was kept in his house in the bathroom; and accordingly, he took the Investigating Officer and the panch witnesses to his house and also to the said open site. Ex.P9 and Ex.P10 are supporting the version of Investigating Officer-PW12, as the accused seen in those photos, was showing the said places..
43 Spl CC No.87/201343. PW12 has further deposed that, he called PW1 and other witnesses i.e., Cws-2, 3, 9 to 16 and recorded their further statements, by keeping the accused for identification in the police station and he also recorded the statements of CWs-21, 23 and 24 on the same day i.e.. on 14.2.2013.
44. PW12 has further deposed that on 15.2.2013, he took the accused to the police custody for medical examination and accordingly, after completion of the procedure of medical examination, he [accused] was taken to the judicial custody on the same day ie., on 15.2.2013.
45. PW12 has further deposed that, on 19.2.2013, he has collected the medical report from the Victoria Hospital in connection with the accused which is at Ex.P25. He also collected the MOs from the said Victoria Hospital pertaining to the victim girl and given Report as per Ex.P26. The articles collected are sent through CW25 to FSL. FSL acknowledgement is at Ex.P27 in this regard. The passport of CW25 is at Ex.P28. On 3.5.2013, he has collected the Xerox copies of the property records of Bhagyamma[PW8] [Pertaining to Vatara -rented premises]. Thus, he [PW12] has conducted thorough investigation and at the end, as he was transferred, the charge of investigation has been handed over to PW-17 for further process. He [PW17] who in turn filed charge-sheet, as the investigation process was completed.
44 Spl CC No.87/201346. It is material to note that, it is the statutory duty casted upon the Investigating Officer [PW12]. Though there may be minor lacunas, and omissions, which are ignorable and they are not so material to discard the evidence of PW12, as it is his thorough investigation and placed materials and deposed on oath. Certain admitted facts are supporting the prosecution case. They are corroborating to the evidence of PWs-1 and 2. Though the circumstantial witnesses have turned hostile to the prosecution case, but, certain materials, as discussed above are being brought on record and they are supporting the prosecution case regarding the address of the accused by virtue of his residence and his stay in the said rented premises belonging to PW8 and the routine event prior to incident i..e, PW1 was making arrangements to leave her children [victim girl and another daughter] with PW3 after Anganwadi school hours and taking them from PW3 to home after returning from her work place and the accused was doing shift work which would be from 6 A.M. to 2 P.M.. These material facts are proved by circumstantial evidence. The above referred material facts i..e, his residence, victim stay with PW3 in Vatara after 2 P.M., Ist shift ended at 2 P.M. etc., are supporting the probabilities that, the accused was very well at the place of Vatara, specifically the passage, where-from the victim girl was taken inside his house on that particular day and the heinous incident was occurred. It is important to note that, there is no any allegation made against PW12 why he could implicate the accused. There is no allegation against PW12-Investigating Officer that, he had falsely apprehended the accused. Nothing is brought on record showing the circumstances, that, the Investigating 45 Spl CC No.87/2013 Officer would create false case against the accused and what was his interest to implicate the accused. Therefore, his [PW12] evidence being of an official witness, done in accordance with statutory duty of investigation. His evidence cannot be discarded entirely. The minor lacunas and irregularities are not so material and they are ignored. Hence, his [PW12] entire evidence appreciated about the collected evidence with due process of law, while discharging his duty as public servant. So testimony of this official witness to be believed as trustworthy.
47. Now coming to the medial evidence, PW13, who is the Scientific Officer of FSL who has deposed that, on 15.3.2013, she received the articles which are pertaining to the materials collected from the dead body of the victim girl and she gave Report as per Ex.P23. The articles are:
(1) Stomach portion of small intestine and its contents; (2) Portion of liver and half of each kidney; (3) Blood;
(4) Preservative used/sodium Fluoride/Sodium Cloride Which were collected at the time of post-mortem examination of the dead body and expressed her opinion that "No poison were detected" as per Ex.P23. This clarifies that, the death of the victim girl was not due to poisoning.
48. PW14- Additional witness is also the scientific officer of FSL, examined the 9 sealed articles, received from the Police Inspector and she gave her Report as per Ex.P24 and the sample 46 Spl CC No.87/2013 seal is at Ex.P25 and on chemical examination, she gave the said Report and opined as under:
1. Blood Stain was detected in article No. 2, 3 and 13 and was stained with human blood.
2. Presence was blood was not detected in Article No. 1, 4, 5, 10, 11 and 12.
3. Item No. 2 and 3 were stained were B-Blood Group
4. The Blood grouping of the Blood stains in item No. 13 could not be determined as the result of the test were inconclusive.
5. Skin was not detected in items No. 11 and 12.
6. Presence was not seminal stains were not detected in item No. 1, 2, 3, 5, 10, 11 and 12.
7. Presence of Spermotozoa were not detected in Article No. 4.
She has opined that, the blood found on Articles-2 and 3 as 'B' blood group of the deceased.
49. Now coming to the evidence of Dr.Venkataraghav PW16 [CW19], who has conducted post mortem on the dead body on 12.2.2013 from 2.45 P.M., to 3.45 P.M,, as the dead body was kept in cold storage. He has deposed that, post mortem staining was present over the back of the body and sand particles were present over the body at places. Dried blood stains were present at places over face, front of abdomen, external genetelia and front of right thigh. Dried whitish stains present over front of middle third of right thigh and front of abdomen, just below the umbilicus. Medial 47 Spl CC No.87/2013 part of right eyelid eaten away by rodents and he noted the external injuries on the dead body as under:
1) Abrasion measuring 1mm X 1mm present over right side of upper part of nose.
2) Multiple abrasion of varying sizes ranging from 1mm X 2 mm to 1mm X 1mm present over the right ala of nose.
3) Abrasion measuring 3 cm X 1 cm present over right part of the cheek, situated 3cm above the angle of mandible.
4) Cresentic Nail scratch abrasion present over left part of cheek measuring 1 cm X 1mm situated 4 cms from left ear lobule.
5) Multiple nail scratch abrasion present over the an area of 11 X 6 cms over front and right side of upper part of neck ranging from 1 cm X 1 mm to 2.2 cm X 1mm.
6) Multiple nail scratch abrasion present over an area of 7 X 4 cm over front and left side of upper part of neck ranging from 1cm X 1mm to 1.5 cm x 1mm.
7) Oval shaped abrasion measuring 1.3 cm X 1cm present over left side of the chin.
8) Abrasion measuring 2.5 X 0.5cm present over upper side of upper part of perineum.
9) Abrasion measuring 2.5 X 0.5cm present over left side of upper part of perineum, situated 1cm left to injury No. 8
10) Contusion measuring 10 X 4 cm present over entire right side of the perineum.
11) Perinial tear measuring 11 cms, extending from Vagina to posterior rectal wall involving Fourchette, vaginal walls, perineal body, anal sphinetu and posterior rectal wall. Margins are irregular and contused. Blood clots present in the tear.
12) Abrasion measuring 3 cm X 1 cm present over back of the neck over bony prominence.
13) Abrasion measuring 2 X 0.5 cm present over middle third, outer aspect of right arm.
14) Abrasion measuring 2 X 1 cm present over middle third, outer aspect of right arm.
15) Abrasion measuring 2 X 1 cm over back of right forearm on its lower third.
16) Abrasion measuring 3 X 2 cm present over back of right hand
17) Abrasion measuring 0.5 X 1 cm over right middle finger at its tip.
48 Spl CC No.87/2013Also, he found features and injuries as under:
1) On reflection of the scalp, blood extravasation present over vertex of head measuring 3 X 2 cms. Skull was intact.
Brain was intact and congested. Cut section shows petichai (small hemorrhage) in white matter.
2) Surface of both lungs and heart showed petichai
3) Cut section of the lungs exudes blood dark in colour and fluidic in nature.
4) Stomach contain 150 ml of rice meal, cream in colour. No unusual smell and Mucosa was normal.
5) External genetelia was already described.
6) Uterus was developed for age. Cavity was empty.
7. On further dissection of the neck, it was observed that tissues underlying showed minimal blood extravasation, 2 X 1 cms, front of neck over thyroid cartilage in sub mandible region. Hyoid bone and thyroid cartilage were intact. Abrasions are bright red in colour, contusion was red in colour.
8. All the injuries were Anti-mortem in nature.
9. Evidence of recent signs of sexual assault are present. Swabs from Vagina, perineal region, stains from thigh and abdomen were taken and sent for chemical analysis. Bolld and Viscera are taken and sent for chemical analysis to FSL. Vaginal smears were sent for presence of spermatozoa to Department of Pathology.
He has also collected the material objects i.e., frock and shorts of the victim girl at MOS-1 and 2. Also he has collected the vaginal smear and vaginal swab as per MOs-4 and 5. He deposed further that,
(a) Injury Nos. 1 to 7 and 12 to 17 described in Ex.P-20, on the body of the deceased lying on the ground, may be caused due to manual strangulations i.e., by pressing her neck by hands.
49 Spl CC No.87/2013(b) Injury Nos. 13 and 14 described in Ex.P-20, found on the body of the deceased may be caused, if somebody holds her arms.
(c) Injury Nos. 17 described in Ex.P-20, could be defence injury.
(d) Injury Nos. 8 to 11 described in Ex.P-20, on the body of the deceased, may be caused due to sexual assault. Specifically injury No. 11 may be caused due to forcible sexual intercourse.
Thus, these are pertaining to the victim girl's dead body.
50. PW16 has also deposed that, on 15/02/2013, he examined the accused as per the requisition from Police Inspector of Madiwala police station from 2.45 PM to 3.45 PM on that day. It very much material to the prosecution case to support that, what criminal act committed on the incident date, has been brought on record through the accused, who had the knowledge under extra-judicial confession. The accused gave history that, "he befriended the victim girl giving her chocolate, lured her and took her inside his house, made her laydown on mat, removed her undergarments and had forcible sexual intercourse". PW16 deposed further that, on physical examination he [accused] was moderately built and nourished as per his age. On examination of external genital, a vertical tear measuring 0.5cm present over posterior aspect of glans penis. 0.5cm away from external urethral opening and genetelia was developed for age. He opined that, there is nothing to suggest that the person is incapable of performing sexual intercourse. He has collected pubic hair, Nails scrapings from both hand fingers, blood on filter paper as per MOs-6 to 9. He has issued Certificate regarding the medical 50 Spl CC No.87/2013 examination of the accused as per Ex.P25. Regarding the injuries mentioned in Ex.P25 noticed on the accused, he deposed that, it was that, "it would be caused due to sexual intercourse only".
51. On perusal of the cross-examination of PW16, nothing has been brought on record, from his mouth, to discard his version, with reference to recording of extra-judicial confession and his opinion expressed on examination of the accused and also the post mortem conducted on the dead body of the victim girl. He deposed that, the victim girl was subjected to sexual assault and also made her to die by throttling. The accused tried to make out case regarding his alleged injury that it was due to allergy. But, nothing has been placed on record to believe this theory. The evidence of PW16 being firm and unshaken disclosed that, the injuries referred to in Ex.P25 was only due to indulging in sexual activities. Apart from this, while examining the accused, PW16 had secured the due consent. It is not seriously disputed that, at that time, Investigating Officer was present while recording extra-judicial confession of the accused and that, it has been illegally obtained by the doctor-PW16. Though it was not the case of the prosecution that, assailant had forcible fall on the victim girl; but, the accused made suggestion through his counsel to PW16 that, "if a person having weight of 40 to 50 kgs had a forcible fall on a child aged about 4 years, there is likelihood of fracture of bones". But, he denied. It is also tried suggesting that, PW16 noticed animal bite injuries on the body of the victim girl, he denied, except inner part of right eye lid. It is strange suggestion that, injuries at Sl.No.s 1 to 4 [on victim 's body] could be caused 51 Spl CC No.87/2013 due to bite by rats, ants etc., as it is referred as rats and question would be why rats would bite? However, PW16's definite opinion is that, except the injury to the right eye lid, other injuries are as explained by him as referred suppra, which links that, it was due to the sexual intercourse and injuries on the neck was only by throttling the neck of the victim girl. It is notable point that, for the particular injuries, different causes were suggested to PW16 that they are caused by and on different occasion, and it was denied that, " Injuries at Sl.Nos. 1 to 4 [Ex.P20] would be caused by animal bite [rats, ants] and injury at Sl.Nos.5 to 7 may be caused due to fall on sharp edge of glass pieces, and injuries at Sl.Nos. 8 to 11 would be caused if a person falls on the iron nails, sharp-edge wooden pieces" etc. This specific denial by expert, these pleas about injuries found on body of victim girl do not help the accused, to disbelieve the evidence of PW16. Such suggestion forming the fact that, those each set of injuries were ought to be at the different times and how those at a time, could occur? Moreover, it is not the case of accused to probabalise that, there could be iron rod/wooden pieces, glass pieces, in the place of incident [Vatara]. There is no admission secured from the complaint/PW1 and other said material witnesses PWS-2 to 8 that, there was such a place that, there were glass pieces, iron rods, wooden pieces and the victim girl used to go to such places to play or otherwise. So, this plea having not established, it is considered a false plea taken by the accused. A prudent man cannot guess that said injuries might have been caused as suggested to PW16. So, the witness-PW16 being Doctor-Expert, denied the same and firm to his opinion that, the respective injuries were caused due to 52 Spl CC No.87/2013 sexual assault and throttling the victim girl. PW16 has explained generalized questions. But, he is firm regarding said injuries found on the victim girl and the accused; specifically genitals, that they were because of forceful sex. The contents of Ex.P25 about consent, the proof is signature of the accused, consenting for his medical test, which is not disputed. When such being the case, the history given by him go against him. It is not challenged as not true. The extra-judicial confession of the accused before the Doctor-PW16 revealed in Ex.P25 is supporting the evidence regarding the guilt of the accused linking that, he had raped the victim girl and also caused her death by throttling. It is also notable point that, defence of alleged skin allergy, the learned Public Prosecutor rightly pointed out that, the accused has not placed materials that, at the earliest point of time, on arrest, he ought to have pressed before the court about his such skin allergy and requested medical treatment through court order, if it was true; nor he was having documents to show that, he had the alleged disease. Even PW16 has denied that, at the time of Ex.P25, the accused had skin infection and that the accused did not give history of his injuries. The accused did not dispute his signature on Ex.P25 and that it was illegally obtained. So, theory of skin allergy and infection are not established by the accused. In the absence of proving defence, discharging onus to prove the defence, it is beneficial to prosecution, to hold that, there was no such disease and this theory was not proved. Then what remains is the case unrebutted and to believe the prosecution specifically to believe evidence of PW16, who deposed about the post-mortem of the dead body [Ex.P20] of the victim girl and 53 Spl CC No.87/2013 Medical Report-Ex.P25 about the accused. PW16 specifically with certainty stated that, as the dead body was kept in cold storage, hence, he could not able to say time since death. He specifically explained that the minute hammaroge [Petechaie] was found in the white matter of brain, surface of hear and lungs and they were due to pressure on the neck. The facts deposed with reference to Ex.P20 are therefore believed and thereby it is proof of victimizing the minor girl for sexual assault and killing the victim girl by throttling while committing rape. So, the learned Public Prosecutor has rightly referred the decision, in which certain facts and law applicable to present case, that the plea of injury caused by fall would not fatal to the prosecution case, if the medical examination revealed that the victim girl was raped [2001 Crl.L.J2548 [SC]. Hence, the evidence of PW16 coupled with Exs.P20 and P25 it is hereby held that, the plea taken by the accused that, the injuries on the deceased victim girl referred in Ex.P20, were caused due to fall on iron rod, wooden pieces, sharp object, etc, does not sustain. Under such circumstances, PW16 being the material witness and authorized expert has examined the accused and gave the Medical Report[ Ex.P25] which is supported the prosecution case to believe that, in all probabilities, the accused is the person who has committed the rape on the victim girl and while doing so, to avoid the shouting or screaming of the child, he caused manual strangulation by pressing the neck of the victim girl with his hands, thereby caused her death in his house.
54 Spl CC No.87/201352. A normal prudent man can thing of and believe that such pressing of neck of a minor girl aged about 4 years, certainly would die. This act itself show that, for his lust, the accused come down to the extent that, for such act of sexual assault, he had committed throttling of victim child, which is nothing, but, murder. Thus, homicidal death that was caused by the accused is amounting to murder. It is the notable factor that, Investigating Officer has stated about the voluntary statement of the accused, who has confessed the manner in which he [accused] committed the offence, and it is disclosed that, the dead body was taken to the said spot i.e, the open site to screen the dead body and threw it at that place, where there was no public access. It is notable point as rightly argued by the learned Public Prosecutor that, the court cannot except the prosecution to produce direct evidence in case of rape/sexual assault of any kind as because, such crimes are committed in complete secrecy. In such case, evidence of the victim girl plays important role in brining home the guilt of the accused. But, in the present case, unfortunate victim girl was no more. So, it is very difficult for the prosecution to adduce evidence to establish the guilt of the accused, if strict principle of circumstantial evidence is insisted upon by the courts. The law does not impose a duty upon the prosecution to lead evidence of such kind, which is almost impossible to place on record and to lead evidence of such character. Therefore, the learned Public Prosecutor has rightly advanced the arguments to assess the evidence on record meticulously and relied upon the case-law reported in 2009 Crimes 45 [SC] pressing upon the difficulty to lead evidence in case of crimes committed in secrecy. Hence, it is excepted that, 55 Spl CC No.87/2013 court shall adopt realistic and pragmatic approach. As already discussed and assessed, the evidence of circumstantial witnesses, and it is proved facts that, there was motive that, the accused on seeing victim girl in the passage, alone, he had lust and wanted to satisfy it and hence he took the innocent child by offering chocolate to her and committed the crime in completely secret place i..e, his house, in which nobody would come, as his two inmates left that house; There is extra-judicial confession by the accused, which can be believed, as it is discussed with reasons, suppra and held that, nothing has been brought on record, why should not believe the evidence of PW12[Investigating Officer] who had discharged his statutory duty and also of the Doctor-PW16, who had conducted Post Mortem examination of the victim girl [Ex.P20] and also examined the accused as per Ex.P25, the Medical report in which [Ex.P25] the accused gave the history, specifically about his criminal act on the victim girl that, he befriended her chocolate, took her inside his house, and committed forcible sexual intercourse. This cannot be discarded. With reference to the last seen, as discussed with reasons, the neighbours and residents of the locality of place of incident, PWs-4 to 8 to the extent of residence and seeing the accused in the Vatara behaving abnormal manner, are the material evidence brought on record to link the chain to the material fatal event, that after his factory work at 2 P.M., on that day, the accused was very well in his house, which shall have to be presumed. The victim is minor girl. Said offence of rape certainly falls within the purview of Sec.5(m) of POCSO Act, 2012, punishable under Sec.6 of POCSO Act, 2012. The statutory presumption is in favour of the victim girl 56 Spl CC No.87/2013 and the prosecution, which is duly referred by the learned Public Prosecutor. He has therefore, referred the decision-2017 (1) SCC (Cri) 678, regarding statutory presumption of guilt, and that general presumption of innocence of the accused not applicable to the cases involving statutory presumption, such as POCSO Act, 2012 [Under Secs. 3, 5, 7 and 9]. It is also duly considered the previous and subsequent conduct of the accused on the basis of available materials, PWs-1 to 8 [evidence] to that extent to be believed [ in case of hostile witnesses] that he was resident of said house and was having work on shift and Ist shift was upto 2 P.M., and his abnormal behaviour after the incident etc., are linking the guilt of the accused. The Investigating Officer has duly conducted mahazars of the spot where the dead body of the victim girl was found and the panchanama of three places the passage of vatara wherefrom he took the victim girl and the place inside his house where he committed sexual assault on her person and throttled her neck while doing so, to avoid the shouting or screaming of the victim girl, to be heard by outsiders and place where he threw the dead body. Thus, it is how the accused got it created a secret place to commit the heinous crime on the person of the victim girl and acted with cruelty. Hence, the arguments of the learned Public Prosecutor with case laws are duly considered which are applicable to the present set of circumstances of the case, that the complaint and FIR are containing information narrated by the informant/complainant. It need not contain all details of prosecution case and therefore, the evidence of witnesses in the court giving details, cannot be the improvement. Even if there is any improvement and it does not disturb the core of the case, it will 57 Spl CC No.87/2013 not fatal to the prosecution case. It may be the exaggeration while giving evidence by the witnesses, which is quite natural. So, though some witnesses turned hostile to the prosecution, their evidence to the extent of supporting the prosecution case has been accepted as truth. The marginal variation in their evidence and statement before the police are considered as not an improvement. So, their testimony has not been doubted entirely, as because their evidence to that extent is corroborative, which has been duly explained and discussed herein before. So, also the medical evidence has been appreciated as proof of prosecution case. So, the plea of the accused about the injuries found on the victim girl [Ex.P20] might be caused by fall of the victim girl from the tree/on the iron rod and wooden pieces or on hard sharp edge surface and in case of accused [Ex.P25], the injuries found on him was because of allergy etc., considered duly and held to be not established by the accused. The said pleas are falsified, by the clear and clinching medical evidence as it has disclosed and proved by adducing evidence of PWs-13, 14 and 16, which revealed that, the victim girl was subjected to sexual assault falling under definition Clause 5(m) of POCSO Act, 2012. So, the said pleas taken by the accused do not fatal to the prosecution case.
53. With reference to official witnesses, specifically, PW12, it is already held that, his testimony cannot be doubted in t his case, as he has done the statutory duty of investigation. Minor lapse of prosecution cannot fatal, as in this case, Investigating Officer-PW12 has performed his duty as a public servant, which can't be presumed, as no materials placed by the accused to discard his 58 Spl CC No.87/2013 evidence for the reason of false implication. It is also acceptable, as argued by the learned Public Prosecutor that, Investigating Officer cannot be excepted that, he should predict and forecast the defence that would be taken by the defence side in future and during the trial and Investigating Officer cannot anticipate the possible defence and investigate in that angle; and placed reliance on the decision reported in 2015(3) Crimes 194 (SC). No doubt the accused submitted his say at the time of recording his statement under Sec.313 of Cr.P.C explaining defence, which are discussed, have not established, as onus is upon him to discharge proving about the events between 2 P.M., on 11.2.2013 till 6 A.M., on 12.2.2013, as he had personal knowledge. So, the defence pressed upon the learned counsel for the accused relying the case laws as referred above that: "(a) no eyewitnesses in this case;
(b) no witnesses stated that, the accused taken the victim girl inside the house; (c) blood group was not matched;
(d) no corroboration in prosecution story; (e) chain link was not proved by the prosecution; (f) FSL Report has not supported the prosecution theory; (g) injuries on the accused was not corroborated the prosecution story; (h) prosecution has not examined star witnesses though they were available [At this stage, it is made it clear that from the materials already discussed above, the prosecution has proved the material facts with cogent and clinching evidence;]. So, non-examination of school [Anganwadi] teacher of staff not fatal to the prosecution case, as the offence was not occurred during the school hours and that it seems that, because of poverty and small children and as PW3 used to wait from commencement of school at ( 9 A.M., till 2 P.M.), and bringing 59 Spl CC No.87/2013 the children and PW1 who was having strained relationship with her husband, and brought to her mother's [PW2] house, etc., might have made arrangements for her [PW1] children with PW3 to take care of her children [including the victim girl]. It is but, natural. So, also the plea that, prosecution has not examined father and sister of the victim girl, which does not sustain. Because, there was some strained relations between PW1 and her husband. It has not placed on record that, he was coming to that area to see his children, through the witnesses PWs-1, 2, 4 to 8. Apart from this, it is suggested that, the husband of PW1 was having affection towards his children. So, it cannot be expected by any prudent man that he [husband of PW1] was there on the date of incident at any of the place in that area of Vatara, caused the fatal incident. So, he [husband of PW1] need not be the material witness to speak about the incident. So, also the minor sister of the victim girl, who was sleeping in the house of PW3, cannot be the material witness to cite her in the charge-sheet. Non-citing of other neighbourers as witnesses, because of they are not so material witness, cannot be fatal to the prosecution case, to disbelieve the facts, asserted and evidence placed on record.
54. Now, with reference to the factory owner of the accused, prosecution rightly has not cited as witness, as because the incident was not happened during the course of factory hours, as it is evident that, the victim girl was brought to the house by PW3 after school hours i.e, 2 P.M., and Ist shift of the accused ended at 2 P.M. So, in all probabilities, the incident was occurred only after 2 P.M., on that day. So, question of citing factory owner [ of the 60 Spl CC No.87/2013 accused] as witness, only for the sake of the avocation of the accused, etc., does not arise. It is not so material fact to prove it, as it is already considered as proved that, the accused was resident of said rented house in the Vatara of PW8 and was going to shift work and Ist shift was from 6 A.M., to 2 P.M. So, non-examination of these witnesses is not fatal to the prosecution case. Question of alleged ration card and gas card etc., as stated by the accused through his learned advocate in the written notes of arguments, does not arise. So, non-collecting of the same by the Investigating Officer cannot make the prosecution case weak. On the other hand prosecution has made the case strong by leading the evidence by placing through the learned Public Prosecutor as discussed above. So, the said defences will not come to the aid of the accused to believe that, he was not at all that place on that day, specifically after 2 P.M., and not committed said offences and that, he was falsely implicated in this case. The accused did not bring on record any material to establish his plea of abili that, he was not there and that the father of the victim girl might have been caused the incident of fall of the victim girl from the tree in that area etc. Hence, the case of the prosecution is not a weak story on all counts and it is the proof conclusive in nature for conviction of the accused. The circumstances as discussed are proved beyond all reasonable doubt, as they are closely connected to link the chain i.e., the principal fact of committing of said offences, which has been appreciated supra. The accused did not establish the probabilities specifically that, he was not at that place and that it might be the father of the victim girl made her fall from tree and also the injuries found at the time of medical examination, as 61 Spl CC No.87/2013 opined by PW16. So, from the evidence placed on record, it is full and conclusive proof, to convict the accused for having committed the crime of aggravated penetrative sexual assault on the victim girl and murder and threw the dead body of the victim girl to screen the offence.
55. It is the mother now victimized to loose her loving child of tender age, in such a way that, it is not a natural death, but, homicidal death amounting to murder while raping her child. So, she has to be recommended for victim compensation under the Government Scheme. Therefore, in all probabilities, as discussed above, it has pointed out the accused that he had committed the offence. The prosecution has brought on record the material facts and proved the guilt of the accused that, the accused by inducing the victim girl of offering chocolate, took her inside his house, committed rape on her and while doing so, and to avoid her shouting, he throttled her neck with his hands and thereby caused her death and to screen the offence, he threw the dead body, on the heap of soil in the open site adjoining to the house of PW7. Thus, the prosecution has proved the guilt of the accused beyond all reasonable doubt. Hence, POINTS-1 TO 3 ARE ANSWERED IN THE AFFIRMATIVE.
56. POINT NO.4:- In the result, I proceed to pass the following:
62 Spl CC No.87/2013ORDER Acting under Sec.235(2) of Cr.P.C, the accused is convicted for the offences punishable under Sec.6 of POCSO Act, 2012 r/w Sec. 376 of IPC and under Secs. 302 and 201 of IPC.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 17th day of November, 2017] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
18.11.2017 HEARD AND ORDER REGARDING SENTENCE:
The accused is present, the learned counsel for the accused is present and the incharge learned Public Prosecutor is present. Heard. The accused and his counsel have specifically submitted that, the accused is coming from poor family and he is the sole bread earner of the family, having old aged parents, he has no criminal antecedents and that, he was holding distinction in ITI and already he is in the judicial custody since from the date of his arrest and pleaded to extent leniency and impose minimum sentence.63 Spl CC No.87/2013
On the other hand, the Incharge. learned Public Prosecutor argued that, the prosecution has proved the case against the accused for the offences punishable under Sec.6 of POCSO Act, 2012 r/w Sec.3767 of IPC and under Secs. 302 and 201 of IPC and punishment is death or imprisonment for life and shall also be liable to fine with reference to the punishment under Sec.302 of IPC, which is coupled with committing of heinous offence punishable under Sec.6 of POCSO Act, 2012 r/w Sec.376 of IPC and submitted that, no leniency shall be extended in imposing punishment to the accused.
However, it is not the rarest of rare cases and the punishment with imprisonment may be awarded. Sec.302 of IPC provides punishment for murder, except in cases where there were extenuating circumstances punishable under this section was death. But, in view of Sec.354(3) of Cr.P.C, new provision introduced to say that, when conviction is for an offence punishable with death or imprisonment for life, it shall be stated the reasons, for sentence awarded and in the case of sentence of death, the special reason for such sentence to be recorded. Therefore, the normal sentence for murder is no longer sentence of death, but, imprisonment for life and only for special reasons to be recorded in awarding sentence of death, in rarest of rare cases. Therefore, as in the present case, on hearing the accused and his counsel and incharge learned Public Prosecutor, it is considered that, this case is not rarest of rare cases in connection with offence of murder under Sec.302 of IPC and it shall be the award of punishment i..e, the accused shall undergo rigorous imprisonment 64 Spl CC No.87/2013 for life and to pay fine of Rs.3,000/- in connection with the offence punishable under Sec.302 of IPC and rigorous imprisonment for a period of 20 years and fine of Rs.3,000/- in connection with the offence punishable under Sec.6 of POCSO Act, 2012 r/w Sec.376 of ICP and with reference to the offence punishable under Sec.201 of IPC, as it involvement of screening of the offender himself from the capital punishment i.e., committing of offence falling under Sec.6 of POCSO Act, 2012, the accused shall undergo imprisonment for a term of 7 years with fine of Rs.1,5000/- for the offence punishable under Sec.201 of IPC.
There shall be recommendation for victim compensation, which shall be paid from the Victim Compensation Fund under the Scheme of Government of Karnataka referred to District Legal Services Authority, Bengaluru Urban district to decide the quantum of compensation to be awarded to the victim sufferer [PW1]. In the present case, the victim girl is dead. The mother of the victim girl/complainant/PW1 has lost her loving child daughter, who was having bright future and it was tender age and on account of cruel act of the accused, the victim girl was murdered. Hence, the mother of the victim girl/PW1 deserves to be compensated by the State Government under this Scheme and it has to be recommended for awarding of compensation through District Legal Services Authority, Bengaluru Urban District by deciding compensation amount, in favour of the mother of the deceased victim girl/complainant/PW1. In the result, I proceed to pass the following:65 Spl CC No.87/2013
ORDER ON SENTENCE The accused shall undergo rigorous imprisonment for Life for the offence punishable under Sec.302 of IPC and he shall pay fine of Rs.3,000/-. In default of payment of fine, he shall undergo Simple Imprisonment for a period of 6 months.
Further, the accused shall undergo Rigorous Imprisonment for a period of 20 Years for the offence punishable under Sec.6 of POCSO Act, 2012 r/w Sec.376 of IPC and he shall pay a fine of Rs.3,000/-. In default of payment of fine, he shall undergo Simple Imprisonment for a period of 6 months.
Further, the accused shall undergo imprisonment for a period of 7 Years for the offence punishable under Sec.201 of IPC and he shall pay fine of Rs.1,500/-. In default of payment of fine, he shall undergo Simple Imprisonment for a period of 3 months.
The sentences awarded for the offences under Sec.302 of IPC and under Sec.6 of POCSO Act, 2012 r/w Sec.376 of IPC and under Sec.201 of IPC shall run concurrently.
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 complainant/PW1/mother of the victim girl by name Smt.Pavithra is entitled to victim Compensation under Karnataka Victim Compensation Scheme, 2011 i.e., as provided under Sec.357(A) of Cr.P.C, Amended Act, 1973. The prosecution 66 Spl CC No.87/2013 shall report about the condition of PW1 for recommendation for victim compensation to District Legal Services Authority, Bangalore Urban District, within 30 days, from the date of this order.
MOs-1 to 9 being worthless shall be destroyed after the appeal period is over.
Copy of this Judgment and order on Sentence shall be supplied to the accused forthwith.
[ Sentence Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the, 18th day of November, 2017] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] Sitting in CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT ANNEXURE Witnesses examined for the prosecution:
Pw.1 Pavithra CW1 12.1.2015
Pw.2 Sarojamma CW2 12.1.2015
Pw.3 Bhemmamma CW9 6.2.2015
Pw4 Sahira Banu CW10 6.2.2015
PW5 Lalitha CW3 6.2.2015
Pw6 Susheela CW12 6.2.2015
PW7 Marappa CW16 22.2.2017
Pw8 Bhagyamma CW15 22.2.2017
67 Spl CC No.87/2013
PW9 Chikkavenkatashetty CW24 23.2.2017
PW10 Chandra CW20 8.3.2017
PW11 Srinivas.G.T CW22 14.3.2017
Pw12 Prashanth CW26 17.3.2017
PW13 Dr.Gundamma Patil Additional 28.3.2017
witness
PW14 Malathi Additional 28.3.2017
witness
PW15 Gangaraju CW25 5.6.2017
PW16 Dr.Venkataraghav CW19 16.6.2017
PW17 Raghavendra.K CW27 10.7.2017
Documents marked for the prosecution:
Ex.P1 Statement/complaint of the complainant/mother of
the victim girl/PW1
Ex.P1(a) Signature of PW1
Ex.P2-Statement of PW4 given before the complainant under Sec.161 of Cr.P.C;
Ex.P3-Further statement of PW4 given before the complainant police; Ex.P4-Statement of PW5 given before the complainant police under Sec.161 of Cr.P.C;
Ex.P5- Statement of PW4 given before the complainant police under Sec.161 of Cr.P.C;
Ex.P6-Further statement of PW4 given before the complainant police;
Exs.P7 to P10-Photographs;
Ex.P11- Statement of PW7 given before the complainant police under Sec.161 of Cr.P.C;
68 Spl CC No.87/2013Ex.P12-Further statement of PW7;
Ex.P13-Statement of PW8 given before the complainant police under Sec.161 of Cr.P.C;
Ex.P14-Further statement of PW8;
Ex.P15-Report given by PW10-Police Constable of the complainant police station regarding taking of FIR and placing it before 3 ACMM, Bangalore;
rd Ex.P15(a)-Signature of PW10 Ex.P15(b)- Signature of PW12 Ex.P16-Report given by PW11-PSI of complainant police station regarding apprehending of the accused and producing him before the Police Inspector of complainant police station; Ex.P16(a)- Signature of PW11 Ex.P16(b)- Signature of PW12 Ex.P17-FIR;
Ex.P17(a)-Signature of PW12 Ex.P18- Inquest Report;
Ex.P18(a)- Signature of PW12 Ex.P19-Spot panchanama of the dead body of the victim girl;
Ex.P19(a)- Signature of PW12 Ex.P20-Post Mortem Report of the deceased victim girl;
Ex.P20(a)-Signature of PW12 Ex.P20(b)- Signatures of PW16 69 Spl CC No.87/2013 Ex.P21-Seizure Mahazar;
Ex.P21(a)-Signature of PW16 Ex.P22-voluntary statement of the accused;
Ex.P22(a)- Signature of PW12 Ex.P22(b)-Signature of the accused Ex.P23- FSL Report ;
Ex.P23(a)- Signature of PW13 Ex.P23(b)-Signature of PW17 Ex.P24-Another FSL Report;
Ex.P24(a)-Signature of PW14 Ex.P24(b)-Signature of PW17 Ex.P25-Sample Seal;
Ex.P25-Medical Certificate of the accused;
Ex.P25(a)-Signature of PW12 Ex.P25(b)-Signatures of PW16 Ex.P26- Report given by Sri.R.Ramesh-Police Constable [CW21] of the complainant police station for having taken the articles collected from the deceased victim girl from Victoria hospital and handing over the same to the Police Inspector of the complainant police station;
Ex.P26(a)- Signature of PW12 Ex.P27-Acknowlegement given by FSL for having received the articles;
Ex.P27(a)- Signature of PW12 70 Spl CC No.87/2013 Ex.P28-Passport given to PW15-Police constable of complainant police station for taking the sealed articles to the FSL;
Ex.P28(a)- Signature of PW12 Ex.P29-Sketch of the house where the alleged incident was taken place.
Ex.P29(a)- Signature of PW12 Exs.D1 to D3: Photographs. [marked during the cross-examination of PW1 on 6.2.2017] Material Objects marked for the prosecution:
MO-1 Frock MO-2: Shorts MO-3: Kacha;
MO-4: Vaginal smear;
MO-5: Vaginal swab;
MO-6: Pubic hairs;
MO-7: Left hand nail scrapings;
MO-8: Right hand nail scrapings MO-9: Blood on filter paper Witness examined, documents and MOs marked for the accused: NIL [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
.71 Spl CC No.87/2013
17.11.17 Accused produced from judicial custody.
Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(2) of Cr.P.C, the accused is convicted for the offences punishable under Sec.6 of POCSO Act, 2012 r/w Sec. 376 of IPC and under Secs. 302 and 201 of IPC.
To hear on Sentence, call on 18.11.2017.
[YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.72 Spl CC No.87/2013
18.11.17 At 3 P.M., the accused/convict is kept present.
Sentence pronounced in the open court:
[vide separate detailed sentence] The accused shall undergo rigorous imprisonment for Life for the offence punishable under Sec.302 of IPC and he shall pay fine of Rs.3,000/-. In default of payment of fine, he shall undergo Simple Imprisonment for a period of 6 months.
Further, the accused shall undergo Rigorous Imprisonment for a period of 20 Years for the offence punishable under Sec.6 of POCSO Act, 2012 r/w Sec.376 of IPC and he shall pay a fine of Rs.3,000/-. In default of payment of fine, he shall undergo Simple Imprisonment for a period of 6 months.
Further, the accused shall undergo imprisonment for a period of 7 Years for the offence punishable under Sec.201 of IPC and he shall pay fine of Rs.1,500/-. In default of payment of fine, he shall undergo Simple Imprisonment for a period of 3 months.
The sentences awarded for the offences under Sec.302 of IPC and, under Sec.6 of POCSO Act, 2012 r/w Sec.376 of IPC and under Sec.201 of IPC shall run concurrently.73 Spl CC No.87/2013
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 complainant/PW1/mother of the victim girl by name Smt.Pavithra is entitled to victim Compensation under Karnataka Victim Compensation Scheme, 2011 i.e., as provided under Sec.357(A) of Cr.P.C, Amended Act, 1973. The prosecution shall report about the condition of PW1 for recommendation for victim compensation to District Legal Services Authority, Bangalore Urban District, within 30 days, from the date of this order.
MOs-1 to 9 being worthless shall be destroyed after the appeal period is over.
Copy of this Judgment and order on Sentence shall be supplied to the accused forthwith.
[YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
74 Spl CC No.87/2013