Bangalore District Court
State By Kamakshipalya Police vs Raju @ Rangaswami on 28 January, 2017
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS JUDGE AT
BENGALURU CITY (CCH-55)
Dated this the 28th day of January 2017
Present: SMT.RAJESHWARI.N.HEGDE.B.Com. LL.B.[Spl.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
SPL.C.C NO.12/2014
COMPLAINANT: State by Kamakshipalya Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED : Raju @ Rangaswami,
Son of Arasaiah,
Aged 33 years,
Residing at Kadaranahalli Grama,
Dasanapura Hobli,
Bangalore North Taluk.
[By Advocate Sri.R.Kothwal]
1. Date of commission of offence 07.06.2013
2. Date of report of occurrence of 07.06.2013
the offence
3. Date of arrest of accused 13.06.2013
4. Date of release of accused 04.06.2014
5. Period undergone in custody 11 Months and 21 Days
by the accused
6. Date of commencement of 13.11.2014
evidence
7. Date of closing of evidence 13.1.2017
2 SPl CC No.12/2014
8. Name of the complainant Smt.Lalithamma
9. Offences complained of Secs. 420, 366(A) and 376 of IPC
and under Sec.4 of POCSO Act,
2012
10. Opinion of the Judge In exercise with the
powers conferred upon me
under Criminal Procedure
Code, the accused is acquitted
of the offences punishable
under Secs. 366 and 376 of
IPC and under Sec.4 of POCSO
Act, 2012. His bail bond and
surety bond obtained earlier
stands cancelled. However,
the bail bond and the surety
bond executed by the accused
on 24.9.2016 in compliance
with Sec.437[A] of Cr.P.C shall
be in force for a period of
6 Months from the date of this
Judgment.
JUDGMENT
Police Inspector, Kamakishipalya Police Station, Bangalore, has submitted charge sheet in Crime No.447/2013 against the accused for the offences punishable under Secs. 420, 366(A) and 376 of IPC and under Sec.4 of POCSO Act, 2012
2. The prosecution case, briefly stated:
The complainant Smt.Lalithamma on 7.6.2013 at about 8.30 P.M., lodged a Complaint-Ex.P5 alleging that, on 7.6.2013 at about 10 A.M., her daughter/victim girl aged 17 years was in 3 SPl CC No.12/2014 the house, at the same time, she [complainant] had been to bring some things from the shop and returned after 5 minutes, her daughter was not in the house, they searched for her but, she did not trace out.
3. On the basis of the said complaint, missing case was registered in Cr.No.447/2013 as per FIR Ex.P11 for the offence under Sec.366 of IPC. Thereafter, criminal law was set in motion. The Investigating Agency commenced the search of the Victim girl. On 13.6.2013 the complainant police traced out the victim girl and the accused at Shimoga and brought her back to Bangalore and recorded her statement. In her statement, the victim girl has stated that, the victim girl came in contact with the accused and she used to call the accused through her mother's mobile and he also used to call her [victim girl], later they started loving each other, the love affair came to the knowledge of the maternal uncle of the victim girl and he scolded both of them and thereafter the family of the victim girl started searching for another boy for getting her married, as she was not liking another boy to get married, she intimated the same to the complainant, that on 7.6.2013 at about 10.30 A.M., the accused called her to come to Kamakshipalya bus stand and on the pretext of marrying her, the accused took her to Shimoga and got married her in Ajjaiah Temple and there they rented a room for 2 to 3 days, and in that room, the accused has committed rape on her against her will. After recording the statement of the victim girl, on the basis of her statement, the Sub-Inspector of Police, has inserted Secs. 366(A), 376 and 420 of IPC and Sec. 4of POCSO Act, 2012 and taken up further 4 SPl CC No.12/2014 investigation. The victim girl was sent for medical examination and spot mahazar conducted both at Bangalore and Shimoga, the accused was arrested on 13.6.2013 and he was also sent for medical examination and after completion of the investigation formalities, charge-sheet has been filed against the accused.
4. The accused is on bail. He is represented by the counsel of his choice. After appearance of the accused, the copies of the prosecution papers [charge-sheet] was given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5. After hearing the learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in- office has framed the Charge on 17.7.2014 for the offences punishable under Secs.366 and 376 of IPC and under Sec.4 of POCSO Act, 2012 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed trial.
6. The prosecution in order to bring home the guilt of the accused has examined in all 14 witnesses as PWs-1 to 14, out of the total 22 witnesses as shown in charge-sheet and one additional witness is examined as PW15 and got marked 21 documents at Exs.P1 to P21. No material objects are marked.
7. At this stage it is necessary to mention that, though in the charge-sheet, there are 22 witnesses cited, the prosecution examined only 14 witnesses and one additional witness is 5 SPl CC No.12/2014 examined as PW15. CW3, CW4, CW6, CW11, CW14, CW17, CW19 and CW20 are not examined by the prosecution. CW3- witness to the spot mahazar, CW4-deposes similarly to CW3, CW6-wife of CW5, CW11-tracing of the accused and the victim girl and producing them before the Investigating Officer, CW14-taking the accused for medical examination to the Victoria Hospital, CW17 and CW19-Investigating Officers who went with the victim girl to Kalasanahalli, Shimoga and CW20 who sent the FIR to the court are not examined by the prosecution. CW6, CW11, CW14, CW17, CW19 and CW20 are given up by the prosecution as repetition. On perusal of the order sheet it discloses that on several times, summons and warrants issued to CW3 and CW4 they did not appear, and therefore CW3 and CW4 were dropped vide order dated: 23.1.2016 by rejecting the prayer made by learned Public Prosecutor.
8. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C was recorded. The accused has denied the incriminating evidence found in the evidence of prosecution witnesses. His defence is that of total denial of his involvement in the alleged incident and that he is totally innocent. Further he has submitted that the complainant's brother Vijaykumar had taken loan of Rs.75,000/- from his [accused] sister Sanjeevamma and when he asked for repayment of the said amount, false complaint is lodged against him [accused]. In support of his defence, the accused has produced 2 documents as per Exs.D1 and D2 i.e., Loan Agreement dated: 27.8.2011 and a Cheque.
6 SPl CC No.12/20149. Heard the learned Public Prosecutor and the learned counsel for the accused. The learned counsel for the accused has also filed written Synopsis and has also relied on the following authorities/decisions in support of his arguments.
(1) AIR 1970 SC 1020 Ram Murti Vs. State of Haryana (2) KCCR 2014(4) SN Kar.329 Saleem alias Mahammed Saleem Vs. State of Karnataka (3) 2014 AIR SCW 6550 Manoharlal Vs. State of M.P (4) 2015 Cri.L.J 1967 Md.Ali alias Guddu Vs. State of U.P (5) 2015(1) AKR 332 Mubarak Vs. State of Karnataka (6) 2010(5) Kar.L.J 687 (DB) State of Karnataka Vs. Vithal Sahadev Kolekar (7) 2011(5) Kar.L.J 439 (SC) A.Shankar Vs. State of Karnataka (8) 2015 AIR SCW 6426 Ram Sunder Sen Vs. Narender alias Bode Singh Patel (9) (2011) ACR 382 Alamelu and another Vs. State (10) (2012) ACR 761 Narender Kumar Vs. Sate (NCT of Delhi) (11) 2012 Cr.R.962 (Kant.) Smt.Lalitha and others Vs. State of Karnataka (12)2012 Cr.R.835 (Kant.) Annaiah S/o. Narayana Vs. State of Karnataka.
(13) (2011) ACR 904 Krishna Kumar Malik Vs. State of Haryana (14) 2012 Cr.R.702 (Kant.) Anil Kumar and others Vs. The State of Karnataka (15) 2010 Crl.L.J 1468 Mohammed Farooq Ahmed Rauf Vs. State of Maharashtra.7 SPl CC No.12/2014
10. After hearing learned Public Prosecutor and the learned defence counsel and as per the Charge leveled against this accused, following Points do arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 7.6.2013 at about 10.30 A.M., the accused kidnapped the victim girl with intent to marry her against her will and thereby committed an offence punishable under Sec.366 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that the accused committed penetrative sexual assault on the victim who is a minor girl without her consent and thereby committed an offence punishable under Sec.376 of IPC and under Sec. 4 of POCSO Act, 2012?
3. What Order?
11. My findings on the above points are as under:
Point Nos.1 and 2: In the NEGATIVE Point No.3: As per the final order, for the following:
REASONS
12. POINT NOS.1 AND 2: Consideration of these two Points are based on the same facts and evidence and therefore, to avoid repetition, these two points are taken together for discussion.
13. According to the prosecution that, on 7.6.2013 at about 10 A.M., her daughter/victim girl aged 17 years was in the house, 8 SPl CC No.12/2014 at the same time, she [complainant] had been to bring some things from the shop and returned after 5 minutes, her daughter was not in the house, they searched for her but, she did not trace out. That on 13.6.2013, the victim girl was traced out and on enquiry, it came to know that, the accused enticed her on the pretext of marrying her and took her to Shimoga and committed rape on the victim girl. Hence, the accused has committed the offences as per the charge leveled against him.
14. The initial burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution has relied upon the evidence of PWs-1 to 15. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Dr.R.Leelavathi deposes about the medical examination conducted on the victim girl Pw.2 Victim girl Pw.3 Lalithamma-complainant as well as the mother of the victim girl Pw.4 Manjunath.M-uncle of the victim girl Pw.5 Vijay Kumar-brother of the complainant Pw.6 P.Nagesh Kumar-then Police Inspector, now Dy.S.P deposes about recording of the statement of the victim girl, sending the victim girl for medical examination, conducting of mahazar as per Ex.P3 Pw.7 Rajanna-Police Constable deposes about taking the victim girl to the place of incident i.e., Sagar Taluk, Kalasanahalli 9 SPl CC No.12/2014 Pw.8 Varalakshmi-WPC deposes about tracing of the accused and the victim girl and taking the victim girl for medical examination PW.9 Prathap.S.-Police Constable deposes about receipt of the medical report of the accused and one brown colour underwear of the accused and producing the same before the Police Inspector PW.10 Lakshman.C-Police Sub-Inspector deposes about receipt of Complaint-Ex.P5, registering of FIR-Ex.P11, sending the victim girl for medical examination, recording of the voluntary statement of the accused and arresting the accused PW11 Venkataswamy.O- then Head constable now Retired Head constable deposes about taking of the accused to Victoria hospital for medical examination PW.12 S.Shivabasappa-Head constable deposes about taking the seized articles to FSL PW.13 Dr.M.P.Pradeep Kumar deposes about the medical examination conducted on the accused PW.14 Nagaraj-Manager of Sigandhur Chowdeshwari Temple, Sagar PW.15 Dakshayini.A deposes about issuing of Certificate attesting the date of birth of the victim girl as 4.7.1996
15. Before appreciating the evidence, it is better to have a glimpse of the evidence given by all witness.
16. PW1-Doctor deposes that on 13.6.2013 the victim girl was brought to the hospital on the history of sexual assault. On 14.6.2013 at about 11.40 A.M., she examined the victim girl and 10 SPl CC No.12/2014 opined that, the hymen of the victim girl was ruptured and she gave Medical Certificate as per Ex.P1. She further deposes that, the victim girl is used to an act like that of sexual intercourse and she has issued MLC Register as per Ex.P17 and OPD Book of the victim girl as per Ex.P18.
17. PW2-victim girl deposes that the accused herein is an auto driver, used to take her aunt in the auto and thereby she [PW2] came in contact with him and they both started loving each other, when the said fact came to know to the family of the victim girl, they scolded her and was making arrangement to fix her marriage with another boy, so, she called the accused and went to Kamakshipalya, from there she and the accused went away, that on 7.6.2013 at about 10.30 A.M., they went to Shimoga and got married in Ajjaiah Temple and made a room and stayed there for 2 to 3 days, thereafter, they went to Dharmasthala and later she telephoned to her uncle and went to Parappana Agrahara, her uncle took them to his house, the police came in search of them, the police enquired as to what happened in the room where they had stayed, she told that something happened, but, she did not tell as to what happened, she was sent to the hospital for medical examination, thereafter her parents took her to their house, the accused has not committed rape on her and she herself voluntarily went with the accused. The victim girl turned hostile to the prosecution case, as such, the prosecution cross-examined her.
11 SPl CC No.12/201418. PW3-complainant as well as the mother of the victim girl deposes that, her daughter/victim girl was studying in SSLC, that on 7.6.2013, when she [PW3] went to the shop and returned to house, at that time, the victim girl was not found in the house, thereafter, she tried to trace out the victim girl, but, the victim girl was not traced out and accordingly, she lodged a complaint as per Ex.P5, after lodging the complaint, she [PW3] came to know that, her daughter/victim girl was in Shimoga and the accused herein took her to Shimoga and committed rape on her.
19. PW4-Uncle of the victim girl deposes that, on 7.6.2013 the victim girl was missing and inspite of they tried to trace out the victim girl, she was not traced, 2-3 days after lodging the complaint, he [PW4] received a telephone call from the victim girl saying that, she was speaking from Majestic, thereafter he told PW3 and the complainant police along with PW3 went there and secured the victim girl and the accused.
20. PW5-maternal uncle of the victim girl deposes that, on 7.6.2013 the victim girl left the house and inspite of they searched, they did not trace out the victim girl and 6 months prior to the date of incident, he warned the accused, as the accused used to give torture to the victim girl when she was going to school.
21. PW6-Dy.S.P- deposes that, he received the complaint from PSI and registered a case and thereafter he arrested the 12 SPl CC No.12/2014 accused and he sent the victim girl and the accused for medical examination and recorded the statement of the victim girl, received the Medical Certificate belonging to the victim girl and the accused, he sent the sealed articles to FSL along with CW12 and the Report given by CW12 is marked as Ex.P6, on 1.7.2013, the Police Constable handed over the underwear of the accused to him and given Report as per Ex.P7, he conducted spot panchanama and after completion of investigation formalities, he filed charge-sheet.
22. PW7-Police Constable deposes that, on 16.7.2013 he along with other police staffs had been to the spot wherein the incident had said to have taken place and the victim girl then took them to Kalasanahalli, Sagar Taluk to Srimata Lodge i.e. Room No.6, wherein the accused had sexual intercourse with the victim girl and drawn Mahazar as per Ex.P3.
23. PW8-WPC deposes that, on 13.6.2013 as per the instructions of the PSI, she along with head constable and other police officials had gone to trace out the victim girl and the accused and the victim girl and the accused were in Manjunath's house at Parappana Agrahara and they secured the victim girl and the accused and brought them and produced them before the PSI. She further deposes that, on the same day i.e., on 13.6.2013 she took the victim girl to K.C.General Hospital for medical examination and thereafter she brought back the victim girl and produced before the PSI and gave her Report as per Ex.P6.
13 SPl CC No.12/201424. PW9-Police Constable deposes that on 1.7.2013 as per the instruction of Police Inspector, he brought the medical report from the hospital and produced along with the Report as per Ex.P7.
25. PW10-Police Sub-Inspector deposes that, on 7.6.2013, at about 8.30 P.M., when he was in the Police Station, the complainant came to the Police Station and lodged a Complaint-Ex.P5, he registered a case in Cr.No.441/2013 and sent FIR as per Ex.P11, that on 13.6.2013, he deputed CW11 and CW12 to trace out the victim girl and the accused and accordingly, they brought the accused and the victim girl from the house of Manjunatha at Parappana Agrahara and produced before him and given Report as per Ex.P12, thereafter, he enquired the victim girl and she has given her Statement as per Ex.P2, he further recorded the statement of the victim girl and on the same day, the victim girl shown the place from where she was kidnapped by the accused and he conducted spot mahazar as per Ex.P4in the presence of CW3 and CW4, Thereafter victim girl was sent for medical examination and he enquired the accused and he [accused] has given voluntary statement before him [PW10] and on 14.6.2013 he sent the accused for medical examination to Victoria Hospital through CW13 and CW14 and after medical examination, they brought back the accused and produced before him and gave Report as per Ex.P13, he sent the FIR through CW20 to the Court and CW20 has given Report as per Ex.P14 and thereafter he has handed over the case records to CW23.
14 SPl CC No.12/201426. PW11- Head Constable deposes that, on 14.6.2013, himself and another head constable were deputed for taking the accused to the medical examination to Victoria Hospital and accordingly they took the accused for medical examination and after medical examination, they brought back the accused and produced before him and given Report as per Ex.P15.
27. PW12-Head Constable deposes that on 5.7.2013 as per the instructions of PSI, he had taken 5 articles for FSL and brought acknowledgement and given Report as per Ex.P9.
28. PW13-Doctor deposes that, on 14.6.2013 the accused by name Raju @ Rangaswamy was produced by Kamakshipalya Police Station, after obtaining consent from the accused, he conducted medical examination on the accused and on genital examination, he opined that, there is nothing to suggest that the person is incapable of performing sexual intercourse and accordingly he has given Report as per Ex.P8.
29. PW14-Manager-Sigandhur Chowdeshwari Temple, Sagar, has not supported the case of the prosecution.
30. PW15- Head Mistress of St.Mira's High School, Bangalore, deposes that, in the month of August-2013, she received Requisition from Kamakshipalya police requesting to furnish certificate pertaining to the victim girl about her date of birth, on 15 SPl CC No.12/2014 the basis of the said Requisition, she issued Certificate as per Ex.P10, as per the Admission Register-Ex.P21, the date of birth of the victim girl is 4.7.1996.
31. On the basis of the aforesaid evidence of the prosecution witnesses, learned Public Prosecutor submitted his arguments he stated that, the prosecution by examining the victim girl, Doctors, victim's parents and her [victim girl] relatives, police officials and further the Head-Mistress of the School, proved that, the accused herein enticed the victim girl , though knowing that she was a minor, had sexual intercourse with her and thereby committed the offences, as charged and hence, he [accused] may be convicted.
32. On the other hand, the defence of the accused is that, though prosecution has examined aforesaid 15 witnesses, but, the prosecution has failed to prove the guilt of the accused that, the victim girl was minor at the time of the commission of the offence and further the prosecution has failed to prove that, the accused herein committed rape on the victim girl, further learned defence counsel would submit:
. the victim girl and the accused were acquainted with each other , as the accused used to come to the house of the victim girl, . the accused did not kidnap the victim girl, . the prosecution utterly failed to prove the age of the victim girl that she was minor at the time of commission of the offence, . there is defective investigation, prosecution has not placed FSL report, 16 SPl CC No.12/2014 .there are many omissions, improvements, contradictions in the evidence of the prosecution witnesses, . the accused has been falsely implicated, . there was hand-loan transaction between PW5 [brother of the complainant] and his [accused] sister Sanjeevamma, .while recording the statement of the victim girl, procedure not duly followed. The statement of the victim girl ought to have been recorded by woman police, not below the rank of Police Inspector, . the Investigating Officer has casually recorded the statement of the victim girl, . the Investigating Officer has not collected any details from the school with regard to the date of birth of the victim girl, the mother of the victim girl deposed that, the victim girl was born in Government hospital, then, Investigating Officer could have collected the documents from the Government Hospital. In so far as date of birth of the victim girl is concerned, the prosecution has not examined the informant who has given the date of birth.
On all these grounds, the learned defence counsel argued that in this case, the Investigating Officer has not properly investigated into the case, there are procedural irregularities, therefore, the evidence of the prosecution witnesses cannot be relied upon and hence, prayed for acquittal of the accused.
33. In the background of the arguments submitted by the learned Public Prosecutor and after hearing the arguments of the learned defence Counsel who submitted that there are many contradictions and omissions in the evidence of the prosecution witnesses, now, it is necessary to scrutinize the evidence of 17 SPl CC No.12/2014 prosecution witnesses by considering their version in the cross-examination before accepting their evidence.
34. First of all, in this case, the accused took the defence, that the victim girl was not a minor at the time of the alleged incident and she was a major. In that regard, the learned defence counsel submitted that, the prosecution has not placed the correct date of birth of the victim girl so as to say that, she was a minor at the time of the alleged incident. In this case the prosecution has examined PW15-Head Mistress of St.Mira's High School, Bangalore who deposed that, in the month of August-2013, Kamakshipalya Police had requested the school authorities to furnish Certificate pertaining to the victim girl-Kumari.Uma.R, about her date of birth and accordingly, she [PW15] issued Certificate marked as Ex.P10 and as per the said Certificate, the date of birth of the victim girl was 4.7.1996.
35. The learned defence counsel argued that though the prosecution examined PW15-Head Mistress to prove the date of birth of the victim girl, during the course of cross-examination of PW15, she admitted that, as per the Admission Register, the victim girl was admitted to the School [St.Mira's High School] while she was studying in 9th standard and on the basis of the Transfer Certificate given by the earlier School, the date of birth of the victim girl mentioned as 4.7.1996. Therefore, the learned defence counsel argued that, the Author who has given the date of birth of the victim girl has not been examined by the prosecution and it is only 18 SPl CC No.12/2014 the hear-say evidence that, the date of birth of the victim girl is 4.7.1996 and therefore, said date of birth cannot be accepted as the date of birth of the victim girl.
36. On the other hand, learned defence counsel argued that, during the course of cross-examination of mother of the victim girl who is examined as PW3, she admitted that the victim girl was born in a Government Hospital at Dasarahalli and she further admitted that there may be birth certificate at Municipality, if that is so, the Investigating Officer could have obtained the Birth certificate of the victim girl from the Municipality, which is the best evidence to prove the date of birth of the victim girl, but, the Investigating Officer has not collected the birth certificate of the victim girl. Further, in this case, the accused filed Memo with Xerox copy of Aadhar Card pertaining to victim girl, wherein the date of birth of the victim girl shown as 4.7.1994. When the accused has produced the document showing the date of birth of the victim girl as 4.7.1994 and when there are 2 documents available with respect to the date of birth of the victim girl i.e. one document showing the date of birth of the victim girl as 4.7.1996 and the another document showing the date of birth of the victim girl as 4.7.1994, then the burden is upon the prosecution to prove the date of birth of the victim girl is 4.7.1996 beyond any reasonable doubt. As argued by the learned defence counsel, the Investigating Officer in this case ought to have obtained the birth certificate of the victim girl from the Municipality, but, he has not made any effort to obtain the birth certificate of the victim girl from the Municipality.
19 SPl CC No.12/201437. The learned defence counsel has relied upon the following 3 decisions in so far question of age of the prosecutrix is concerned:
(1) AIR 1970 SC Page 1020 (2) KCCR 2014 (4) SH Kar Page 329 (3) (2011) ACR SC Page 382.
I have gone through the observations made in the aforesaid 3 decisions. In the 1st decision it is observed that:
"Evidence Act-Sec.35- Age, proof of-Unproved and unexibited school certificate cannot be relied upon".
In the 2nd decision, it is observed that:
"Investigating Officer not made any effort to ascertain age of victim".
In the 3rd decision, it is observed that:
"Evidence Act- Sec.35- Public record-Transfer certificate issued by Government school and duly signed by Headmaster, would be admissible in evidence under Section 35-However, admissibility of such document would be of not much evidentiary value to prove age of girl in absence of material on the basis of which age was recorded-Date of birth mentioned in transfer certificate would have no evidentiary value unless the person, who made the entry or who gave date of birth is examined".
After going through the observations made in the aforesaid decisions and in the present case, as there are 2 documents available with regard to the date of birth of the victim girl and further the Investigating Officer did not make any efforts to obtain the Birth certificate of the victim girl from the Municipality, under 20 SPl CC No.12/2014 these circumstances, this court is of the opinion that, the prosecution has failed to prove the exact date of birth of the victim girl i.e., as 4.7.1996. Therefore, the arguments canvassed by the learned defence counsel that, at the time of alleged incident, the victim girl might have attained the age of majority, has to be accepted.
38. Further, learned defence counsel submitted that, though the victim girl and her parents deposed about the incident that, the accused kidnapped the victim girl and committed rape on her, the evidence of the victim girl cannot be considered, because, there are contradictions in her evidence and thereby, her evidence is not trustworthy to believe. In support of his arguments, the learned defence counsel has drawn the attention of this court with regard to the statement made by the victim girl during the course of her cross-examination. The Victim girl is examined as PW2 in this case. In the chief examination of PW2, she deposed that, the accused did not kidnapped her, she and the accused were loving each other, when her parents intended to perform her marriage with another boy, she telephoned to the accused and went along with him. Further she deposes that, she has not given any statement before the police that the accused kidnapped her and committed rape on her, therefore, the prosecution treated the victim girl-PW2 as hostile to the prosecution case and cross-examined her. Though she [PW2] was cross-examined, nothing worth elicited from her evidence to support the case of the prosecution. Inspite of that, the learned defence counsel cross-examined her [PW2]. During the course of cross-examination, suggestion put to PW2 that, the accused did not 21 SPl CC No.12/2014 take her to Shimoga, wherein she did not have any sexual intercourse with him. That suggestion denied by PW2. Therefore, learned Public Prosecutor argued that, when the learned defence counsel suggested to PW2 that, the accused did not take her to Shimoga and not committed rape on her and when that suggestion denied by PW2, then it amounts to that the accused had sexual intercourse with PW2, after kidnapping her. Therefore, learned Public Prosecutor argued that, the evidence of PW2 can be taken into consideration that, the accused had committed rape on PW2. Further learned Public Prosecutor argued that, Medical Records marked as Exs.P1, P17 and P18 discloses that, the victim girl went to Shimoga with Raju @ Rangaswamy and got married at Ajjaiah Temple at Shimoga and Raju@ Rangaswamy took her to a lodge and had sexual intercourse with her. Further Ex.P17 discloses that the victim girl was referred to Gynecologist examination and also to collect required evidence. Therefore, learned Public Prosecutor submitted that, the accused herein had committed rape on the victim girl and taking into consideration of suggestion put by the learned defence counsel, during the course of cross-examination of PW2 and on the Medical Reports, the accused may be convicted.
39. On the contrary to the arguments canvassed by learned Public Prosecutor, the learned defence counsel submitted that, when the victim girl has given different statements, her evidence cannot be trustworthy to rely upon. In that regard, the learned defence counsel has relied upon the following decisions reported in:
(1) 2014 AIR SCW 6550
(2) 2015 Cri.L.J 1967
22 SPl CC No.12/2014
(3) 2015(1) AKR 332
(4) 2010 (5) Kar.L.J 687 (DB)
(5) 2012 Cr.R. 962 (Kant.)
(6) 2012 Cr.R. 835(Kant.)
(7) 2012 Cr.R. 702 (Kant.)
I have gone through the observations made in all the aforesaid decisions. In the 1st decision it is observed that:
"Sec.376-Rape-Proof-Allegations that accused forcibly took prosecutrix to various places and thereafter to his house and raped her-Sequence of events as narrated would show that she had allegedly accompanied the accused to various places-Sole testimony of prosecutrix improbable and cannot be relied upon to bring home charge against the accused-Accused entitled to benefit of doubt".
In the 2nd decision it is observed that:
" Testimony of prosecutrix that she was taken from one place to the other and remained at various house for almost two months-Only explanation given by her is that she was threatened-No statement by prosecutrix in her testimony that she was confined to one place-Medical evidence showing that there are no injuires on private parts-Testimony of prosecutrix not inspiring confidence- Conviction of accused, not proper".
In the 3rd decision, it is observed that:
"Victim below 18 years of age, was found to be of sufficient understanding, but, she did not raise alarm when she traveled 200 kms, by bus with accused to reach Mysore- Sequence of events showing that victim had willfully accompanied accused to Mysore and stayed 23 SPl CC No.12/2014 overnight at resident of uncle of accused-Further, there was no charge of physical violation of victim against accused-Accused entitled to acquittal".
In the 4th decision, it is observed that:
"Evidence of child witness, who is also prosecutrix, evasive and not implicating accused-Medical evidence inconclusive-Bloodstains on clothing of prosecutrix, not tallying with that of the accused-Conviction liable to be set-aside".
In the 5th decision, it is observed that:
"Victim is a minor girl- She has not come out with the full truth-Evidence placed by the prosecution with regard to the alleged kidnap is not consistent and cogent. It suffers from inherent infirmity-Mere stay in house of accused for five months itself cannot be a ground to come to conclusion that girl had been kidnapped-Conviction and sentence set-aside".
In the 6th decision, it is observed that:
"If evidence of victim does not inspire confidence of court conviction cannot be based on sole evidence of victim- Evidence of victim read in context of long delay in lodging FIR and antecedent possibilities of love affair with accused and victim would suggest that act alleged was result of consent by victim-Victim was aged more than 16 years and she was capable of giving consent- Conviction and sentence set-aside".
In the 7th decision, it is observed that:
"Kidnapping and rape of minor girl- Conviction- Mere abduction is not enough to attract provision of Section 366, IPC-victim made contradictory statements- No explanation for delay in lodging first information-24 SPl CC No.12/2014
Medical evidence totally lacking in present case-Conduct of victim before and after alleged incident would belie her evidence-accused entitled for acquittal".
On going through the observations made in the aforesaid decisions, the learned defence counsel argued that, in the present case, the evidence of the victim girl cannot be relied upon so as to convict the accused.
40. On going through the aforesaid decisions, which are referred by the learned defence counsel, i.e., of the year 2012 are not applicable to the facts of the present case, because the present case is filed under the Special Act i.e. POCSO Act, 2012 which came into effect from 14.11.2012. Therefore, the observations made in the decisions reported in the year 2012 i.e., prior to commencement of POCSO Act, therefore, the said decisions are not applicable to the facts of the case on hand. However, in so far as evidence of the victim girl is concerned, as rightly argued by the learned defence counsel, she has initially turned hostile when the prosecution conducted examination-in-chief and during the course of cross- examination by the learned defence counsel she rightly or wrongly denied the suggestion made by the learned defence counsel that, she was not kidnapped by the accused and not raped by the accused, therefore, it amounts to admission that, the accused kidnapped the victim girl and committed rape on her. Only on the basis of the said admission, it cannot be said that, the evidence of the prosecutrix can be relied upon. Though the Medical Reports 25 SPl CC No.12/2014 i.e., Exs.P1, P17 and P18 and the evidence of the Doctor-PW1 discloses that the hymen was ruptured and she is used to an act like that of sexual intercourse, as the evidence of the victim girl is not trustworthy to believe, because of inconsistencies and irregularities in the statements, the evidence of PW1 and the documents at Exs.P1, P17 and P18 will not help the case of the prosecution.
41. Further, the learned defence counsel argued that, in this case, the Investigating Officer has not produced the FSL Report. In that regard the learned defence counsel has relied upon a decision reported in 2011(5) KLJ 439 (SC), wherein it is observed that:
"Where the recovery said to have been sent for FSL Examination, but, no report of F.S.Laboratory was produced in court to prove identity of weapon-Omission, held, was fatal to case of prosecution".
In the present case, as per the evidence of the Doctor-PW1, she deposed that, she had sent the articles collected by her to FSL during the medical examination of the victim girl i.e., vaginal swab, pubic hair, finger nails and clothes for FSL. However, in the FSL report it is stated that, seminal stains not detected in any of the articles sent for medical examination. But, the Investigating Officer has not placed the FSL Report. As rightly argued by the learned defence counsel that in this case the Investigating Officer has not produced the FSL report in order to say that, seminal stains are 26 SPl CC No.12/2014 found in the articles sent for FSL were belongs to the accused and thereby, the accused was the culprit.
42.. Further, the learned defence counsel argued that, the accused has been falsely implicated in this case. The accused took the defence that the brother of the complainant by name Vijay Kumar took Rs.75,000/- from his [accused] sister and when the sister of the accused asked to repay the said amount, false case has been foisted against him [accused]. During the course of cross-examination of PW3- mother of the victim girl, she has admitted that, her brother Vijay Kumar borrowed a sum of Rs.75,000/- from the sister of the accused, in that regard, the learned defence counsel has produced the document marked as Ex.D1. Ex.D1 is Agreement dated: 27.8.2011 wherein PW3 is a witness to the said document. Her signature is marked as Ex.D1(a), her brother Vijaykumar who is also examined in the present case as PW5, his signature is marked as Ex.D1(b). Further, the accused has also produced the Cheque marked as Ex.D2 for Rs.75,000/- On perusal of documents at Exs.D1 and D2, it discloses that, there was monetary transaction between the brother of the victim girl's mother and the sister of the accused.
43. In so far as false implication is concerned, on going through the evidence of PW3-mother of the victim girl and PW5-Vijayakumar, both of them, admitted that, he [PW5] took the amount from the sister of the accused and further on perusal of the evidence of the victim girl, her mother and her maternal uncle, it discloses that, the accused used to visit the house of the victim girl.
27 SPl CC No.12/2014When the victim girl deposed on oath that, the accused has not committed rape on her and further on perusal of the defence, that there was monetary transaction between the brother of the victim girl's mother and the sister of the accused, there might be chances of false implication of this accused in the present crime in order to avoid repayment of the said loan amount of Rs.75,000/-. Therefore, the arguments canvassed by the learned defence counsel with regard to false implication of the accused, may be accepted as true.
44. To sum up in this case, the arguments of learned Public Prosecutor that, there is medical evidence to show that, the hymen of the victim girl was ruptured, the victim girl admitted the suggestion that the accused kidnapped her and committed rape on her [as suggested by the learned defence counsel], further the mother of the victim girl-PW3, victim's maternal uncle -PW5 and other police officers deposed that the accused has committed the offence and relying on the medical evidence and the evidence of the mother of the victim girl, the accused may be convicted.
45. On the other hand, the learned defence counsel has argued that, there are contradictions, omissions in the evidence of prosecution witnesses and further the Investigating Officer has not properly investigated into the matter and the accused has been falsely implicated in this case because of monetary transaction between the brother of the victim girl's mother and the sister of the accused and therefore, the learned defence counsel prayed for acquittal of the accused.
28 SPl CC No.12/201446. As per the discussions made in the aforesaid Paragraphs of this Judgment, first of all the Investigating Officer has not collected the Birth Certificate of the victim girl from the Municipality and the Investigating Officer ought to have collected the documents from the Municipal Authorities, the document which can be relied upon to prove the date of birth of the victim girl and further the Doctor-PW1 during the course of her cross-examination deposes that, she has referred the victim girl for Radiological and Dental examination, but, she did not see the Report of the Radiological and Dental examination of the victim girl. In this case, the prosecution has not examined the Doctor who conducted the Radiological and Dental examination of the victim girl. Therefore, in this case, the victim girl was a minor at the time of incident, is not proved. Further, the victim girl herself not supported the case of the prosecution and she has given inconsistent statements and therefore, her evidence cannot be taken into consideration, as trustworthy to believe, though the evidence of PW3 and PW5 are available, their evidence also cannot be believable, because of monetary transaction between the brother of the victim girl's mother and the sister of the accused. For all these reasons, this court is of the opinion that, the prosecution has failed to prove the guilt of the accused beyond any reasonable doubt. Giving benefit of doubt to the accused, he [accused] is entitle to an order of acquittal. Accordingly, I answer POINT NOS. 1 AND 2 in the NEGATIVE.
47. POINT NO.3: In view of my aforesaid discussions, I proceed to pass the following 29 SPl CC No.12/2014 ORDER In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is acquitted of the offences punishable under Secs. 366 and 376 of IPC and under Sec.4 of POCSO Act, 2012. His bail bond and surety bond obtained earlier stands cancelled. However, the bail bond and the surety bond executed by the accused on 24.9.2016 in compliance with Sec.437[A] of Cr.P.C shall be in force for a period of 6 Months from the date of this Judgment.
In so far as victim compensation is concerned, in the present case, the victim girl is not entitled for compensation, for the reason that, she turned hostile to the prosecution case and according to her, she was a major at the time of incident and therefore, this court is of the opinion that, the victim girl is not entitled to compensation.
[Dictated to the Stenographer partly and directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 28th day of January 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
30 SPl CC No.12/2014ANNEXURE Witnesses examined for the prosecution:
Pw.1 Dr.R.Leelavathi CW9 13.11.2014
Pw.2 Victim girl CW2 3.12.2014
Pw.3 Lalithamma CW1 3.12.2014
Pw.4 Manjunath.M CW5 3.12.2014
Pw.5 Vijay Kumar CW8 3.12.2014
Pw.6 P.Nagesh Kumar CW22 3.12.2014
Pw.7 Rajanna CW18 22.9.2015
Pw.8 Varalakshmi CW12 14.10.2015
PW.9 Prathap.S. CW16 14.10.2015
PW.10 Lakshman.C CW21 14.10.2015
PW11 Venkataswamy.O CW13 4.1.2016
PW.12 S.Shivabasappa CW15 4.1.2016
PW.13 Dr.M.P.Pradeep Kumar CW10 23.1.2016
PW.14 Nagaraj CW7 15.4.2016
PW.15 Dakshayini.A Additional 13.1.2017
witness
Documents marked for the prosecution:
Ex.P1 Report of Examination of the victim
Ex.P1(a) Signature of PW1
Ex.P1(b) Signature of PW6
Ex.P2 Relevant portion of the Statement of PW2-victim girl
Ex.P3 Spot Mahazar conducted at Sagar, Shimoga District
Ex.P3(a) Signature of PW2-victim girl
Ex.P3(b) Signature of PW6
Ex.P3(c) Signature of PW7
31 SPl CC No.12/2014
Ex.P4 Spot Mahazar conducted at Kamakshiplaya,
Bangalore
Ex.P4(a) Signature of PW2-victim girl
Ex.P4(b) Signature of PW10
Ex.P5 Complaint dated: 7.6.2013
Ex.P5(a) Signature of PW3
Ex.P5(b) Signature of PW10
Ex.P6 Report given by PW8 to the Police Inspector of
complainant Police Station
Ex.P6(a) Signature of PW6
Ex.P6(b) Signature of PW8
Ex.P7 Report given by PW9 to the Police Inspector of
complainant Police Station
Ex.P7(a) Signature of PW6
Ex.P7(b) Signature of PW9
Ex.P8 Medical Certificate of the accused
Ex.P8(a) Signature of PW6
Ex.P8(b) Signature of PW13
Ex.P9 Report given by PW12 to the Police Inspector of
complainant Police Station
Ex.P9(a) Signature of PW6
Ex.P9(b) Signature of PW12
Ex.P10 Study certificate of the victim girl
Ex.P10(a) Signature of PW6
Ex.P10(b) Signature of PW15
Ex.P11 FIR
Ex.P11(a) Signature of PW10
32 SPl CC No.12/2014
Ex.P12 Report given by CW11-Honnaraju-Head constable to
the Police Inspector of complainant Police Station Ex.P12(a) Signature of CW11-Honnaraju Ex.P13 Report given by CW14-M.H.Gangaraju-Head Constable to the PSI of complainant Police Station Ex.P13(a) Signature of PW10 Ex.P14 Report given by CW20-Shivakumar-Police constable to the PSI of complainant Police Station Ex.P14(a) Signature of PW10 Ex.P15 Report given by PW11 to the PSI of complainant Police Station Ex.P15(a) Signature of PW11 Ex.P16 Statement given by PW14 before the complainant police Ex.P17 MLC Register Ex.P17(a) Page No.32 of Ex.P17-MLC Register Ex.P17(b) Endorsement Ex.P18 Out Patient Department Book Ex.P18(a) Page No.6 of Ex.P18-Out Patient Department Book Ex.P19 Original Admission Register of St.Meera's High School, Bangalore, pertaining to the years 2006-07, 2011-12 [Original Admission Register-Ex.P19 is returned to the witness-PW15] Ex.P19(a) Relevant page at No. 83, Sl.No.73 Ex.P20 Attested copy of the relevant entry in Admission Register of St.Meera's High School Ex.P21 Attested copy of Transfer Certificate of the victim girl 33 SPl CC No.12/2014 Witness examined for the accused: NIL Documents marked for the accused:
Ex.D1 Loan Agreement dated: 27.8.2011 Ex.D1(a) Signature of PW3 Ex.D1(b) Signature of PW5 Ex.D2 Cheque Ex.D2(a) Signature of PW5
LIV Addl., City Civil & Sessions Judge, Bangalore.
34 SPl CC No.12/201428.1.17 Accused is present.
Judgment pronounced in open court:
[ Vide separate detailed Judgment] In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is acquitted of the offences punishable under Secs. 366 and 376 of IPC and under Sec.4 of POCSO Act, 2012. His bail bond and surety bond obtained earlier stands cancelled. However, the bail bond and the surety bond executed by the accused on 24.9.2016 in compliance with Sec.437[A] of Cr.P.C shall be in force for a period of 6 Months from the date of this Judgment.
In so far as victim compensation is concerned, in the present case, the victim girl is not entitled for compensation, for the reason that, she turned hostile to the prosecution case and according to her, she was a major at the time of incident and therefore, this court is of the opinion that, the victim girl is not entitled to compensation.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY 35 SPl CC No.12/2014