Bangalore District Court
State By Hebbala Police vs Nos.1 A1: Muniraju.A on 27 February, 2017
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS JUDGE AT
BANGALORE CITY (CCH-55)
Dated this the 27th day of February, 2017.
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY.
Spl.C.C.No.571/2014
COMPLAINANT State by Hebbala Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED NOS.1 A1: Muniraju.A,
AND 2 S/o Anjinappa,
Aged 27 years,
Resident of No.197, Govindapura,
Veerannapalya Main Road,
Arabic College Post,
Bangalore-45.
A2: Karthik Nayak,
Son of Lakshya Nayak,
Aged 19 years,
Resident of Davadabetta Taanda,
Killarala Halli Post,
Pavagada Taluk,
Tumkur.
[A1:By Advocate Sri.Mohammed Pasha.C
A2: By Advocate Sri.Harish.M.T]
2 Spl CC No.571/2014
1. Date of commission of offence 28.08.2014
2. Date of report of occurrence of 28.8.2014
the offence
3. Date of arrest of accused No.1 31.08.2014
4. Date of release of accused No.1 20.02.2015
[on bail]
5. Period undergone by accused 05 Months and 17 Days
No.1 in judicial custody
6. Date of arrest of accused No.2 11.09.2014
7. Date of release of accused No.2 17.01.2015
[on bail]
8. Period undergone by accused 04 Months and 6 Days
No.2 in judicial custody
9. Date of commencement of 01.01.2015
evidence
10. Date of closing of evidence 16.1.2017
11. Name of the complainant Smt.Pramela Balu
12. Offences complained of against Sec.376 of IPC and Sec.5(l), (o)
accused No.1 r/w Sec.6 of POCSO Act, 2012
13. Offences complaint of against Sec.376 of IPC and Secs. 3 and 4
accused No.2 of POCSO Act, 2012
14. Opinion of the Judge ACCUSED NOS. 1 AND 2
ARE ACQUITTED.
3 Spl CC No.571/2014
JUDGMENT
Police Inspector, Hebbala Police Station, Bangalore, has submitted charge sheet in Crime No.205/2014 against accused Nos.1 and 2 for the offences punishable Under Sec.376 of IPC and Sec.5(l), 5(o) r/w Sec.6 of POCSO Act, 2012 against accused No.1 and under Sec.376 of IPC and Sec. 3 r/w Sec. 4 of POCSOAct, 2012 against accused No.2.
2. The prosecution case, briefly stated:
That on 28.8.2014 at about 10.35 P.M., the complainant Smt. Pramela Balu approached the complainant police and filed a Complaint as per Ex.P12 alleging that her sister's daughter/victim girl aged 14 years that on 28.8.2014 at about 9 P.M., left the house to go to school, but she did not return to house. They searched for her but, she did not trace out. Hence a missing complaint was filed.
3. On the basis of the said complaint, missing case was registered in Cr.No.205/2014 as per FIR Ex.P20. Thereafter, criminal law was set in motion. The Investigating Agency commenced the search of the Victim girl. That, on 29.8.2014, the parents of the victim girl brought the victim girl before the complainant Police Station and on counseling, the victim girl stated that, on 28.8.2014 in the morning she left the house for school, one Praveen, Mahesh and Karthik who were earlier known to her came in Maruthi Omni van and told that, Muniraju who is accused No.1 herein is calling her, and as such she sat in the said car and 4 Spl CC No.571/2014 they took her to Yeshwanthapura Railway station, from there, Karthik and Mahesh took her to Tumkur to a house, in that house, a lady aged 30-35 years was there, again from there, they took her to another house, near that house, accused No.1 and Praveen was there, on that night at 7 P.M., said Praveen brought meals and after she had the meals, she was unconscious, when she woke up in the morning, she found that, there were no clothes on her body and came to know that these persons have committed rape on her. Thereafter, these persons sent her back to Bangalore by a train and in the train, she took a mobile phone belonging to someone and called to her mother and asked her mother to come to Majestic and pick up her, as such, her parents came to Majestic and took her home and thereafter they brought her to the complainant Police Station. She further stated that, she knows accused No.1-Muniraj, who was her PT Teacher. Again on 30.8.2014, when the victim girl had undergone counseling she stated that, accused No.1 was touching her body parts and during January and February-2014, the accused No.1 had sexual intercourse with her for 5 times and on 28.8.2014 even accused No.2 also had raped her. Thereafter, the victim girl was sent for medical examination and spot mahazar conducted at Bangalore and Tumkur and accused Nos.1 and 2 were arrested and they were also sent for medical examination and after completion of the investigation formalities, charge-sheet has been filed against these accused persons.
4. Accused Nos. 1 and 2 are on bail. They are represented by the counsels of their choice. After appearance of accused Nos.1 and 2, copies of the prosecution papers [charge-sheet] were given 5 Spl CC No.571/2014 to the counsels on behalf of accused Nos. 1 and 2 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 4.8.2015 for the offences punishable under Secs.376 of IPC and under Secs. 5(l), 5(o) r/w Sec.6 of POCSO Act, 2012 against accused No.1 and under Sec.376 of IPC and under Sec.3 r/w Sec.4 of POCSO Act, 2012 against accused No.2 and read over to the accused Nos.1 and 2 in the language known to them. Accused Nos. 1 and 2 pleaded not guilty and claimed trial.
6. The prosecution in order to bring home the guilt of the accused persons has examined in all 20 witnesses as PWs-1 to 20, out of the total 28 witnesses as shown in charge-sheet and got marked 24 documents at Exs.P1 to P24 and got marked Material objects as MOs-1 to 7.
7. At this stage, it is necessary to mention that, the prosecution has not examined CW7, CW8, CW11, CW12, CW16, CW19, CW22, CW23. On perusal of the order sheet, it discloses that CW11, CW16, CW22 and CW23 were given up as repetition. Inspite of number of times summons taken to CW7, CW8, CW12 and CW19, their presence could not secure. Therefore, prayer made by learned Public Prosecutor for issue of summons once again to these witnesses [CW7, CW8, CW12 and CW19] is rejected 6 Spl CC No.571/2014 and CW7, CW8, CW12 and CW19 are dropped vide Order dated: 4.1.2017.
8. After completion of prosecution evidence, the statements of accused Nos. 1 and 2 as contemplated under Sec.313 of Cr.P.C were recorded. Both the accused persons have denied the incriminating evidence found in the evidence of prosecution witnesses. Their defence is that of total denial of their involvement in the alleged incident. However, accused Nos.1 and 2 did not choose to lead any evidence in support of their defense.
9. Heard the learned Public Prosecutor and the learned counsels for accused Nos.1 and 2. Perused the records.
10. After hearing the arguments of learned Public Prosecutor, learned defence counsel for accused No.1 and learned defence counsel for accused No.2 and as per the Charge leveled against these accused persons, the following Points do arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that accused No.1 being the P.T Master of Young Scholars School, V.Nagenahalli was giving basket ball coaching to the students including the victim minor girl and after closing the coaching class, accused No.1 used to take the victim girl aged 14 years who was one of his students to the room, where the sports articles were kept and had sexual intercourse with the victim girl forcibly, knowing that, the victim girl is a minor and 7 Spl CC No.571/2014 thereby committed an offence punishable under Sec.376 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that accused No.1 committed aggravated penetrative sexual assault on the victim girl repeatedly and thereby committed an offence punishable under Sec. 5(l) r/w Sec. 6 of POCSO Act, 2012?
3. Whether the prosecution further proves that, accused No.1 being the P.T Teacher where the victim girl was studying and providing services to the victim girl, committed penetrative sexual assault on the victim girl and thereby committed an offence punishable under Sec.5(o) r/w Sec.6 of POCSO Act, 2012?
4. Whether the prosecution further proves that, accused No.2 enticed the victim girl, and took her to his residence at Tumkur and committed rape on her knowing that she is a minor and thereby committed an offence punishable under Sec.376 of IPC?
5. Whether the prosecution further proves that, accused No.2 committed penetrative sexual assault on the victim girl, knowing that she is a minor and thereby committed an offence punishable under Sec.3 r/w Sec.4 of POCSO Act, 2012?
6. What Order?
11. My findings on the above points are as under:
Point Nos.1 to 5: In the NEGATIVE Point No.6: As per the final order, for the following:8 Spl CC No.571/2014
REASONS
12. POINT NOS.1 to 5:- Consideration of these Five Points are based on the same facts and evidence and therefore, to avoid repetition, these Five points are taken together for discussion.
13. According to the prosecution, accused No.1 being the P.T.Teacher of the victim girl had sexual intercourse with her repeatedly knowing that she is a minor girl and accused No.2 also enticed the victim girl and committed rape on her. Hence, the accused persons have committed the offences as per the charge leveled against them.
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 20. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Mallikarjuna- P.T Teacher at Young's Scholars Academy wherein the victim girl was studying Pw.2 Kemparaju.A.N- Police constable deposes about tracing of accused No.1 and producing him [accused No.1] before the PSI Pw.3 Dr.B.M.Nagaraj deposes about the medical examination conducted on the victim girl, and also medical examination conducted on accused Nos.1 and 2 Pw.4 Victim girl Pw.5 Sarojamma-grand-mother of the victim girl Pw.6 Yashoda- mother of the victim girl Pw.7 Selvakumar-father of the victim girl 9 Spl CC No.571/2014 Pw.8 Pramila-complainant as well as the aunt of the victim girl PW.9 Bhagyamma-WPC who deposes about taking the victim girl for medical examination to Dr.Ambedkar Medical college PW.10 Sureshbabu-Police Constable who deposes about taking accused No.1 for medical examination to Dr.Ambedkar Medical college PW11 Prasannakumar-Head constable who deposes about taking the seized articles to FSL PW.12 V.Krishnappa-Head constable who deposes about tracing out accused No.2 and producing him before the Police Inspector of complainant police station PW.13 Arogyamma-Co-ordinator, SJPU PW.14 Babaiah- Watchman of Young's Scholars Academy PW.15 N.Munirajaiah-ASI deposes about tracing of accused No.1 and producing him before PSI PW16 C.Kumar- witness to the Spot Mahazar as per Ex.P17 conducted in Young's Scholar School, Bangalore PW17 Sridhar-witness to the Spot Mahazar as per Ex.P18 conducted in a house at Cauvery Nagar, Tumkur PW18 Jayanna-ASI deposes about tracing of accused No.2 and producing him before Police Inspector PW19 Shivaputrapp.T.Magod-Sub-Inspector deposes about receipt of the complaint as per Ex.P12 and registering of FIR as per Ex.P20 PW20 Nagesh.S.Aslar- Police Inspector deposes about conducting of further investigation and submitting charge-sheet.10 Spl CC No.571/2014
15. Before appreciating the evidence, it is better to have a glimpse of the evidence given by all witness.
16. For the convenience reference, first of all, the deposition of the victim girl is taken up. The victim girl is examined as PW4. The sum and substance of her evidence is that, she knew accused No.1, he was her P.T Teacher, she also knew accused No.2, he used to come near her school, she was participating in sports in her school days and accused No.1 used to taught sports, her school was from 9 A.M., to 3.30 P.M., after the school hours, she used to play from 3.30 P.M. to 6 P.M., in her school filed. She further deposes that, she herself went out of the house and stayed in her friend's house, in the meantime, her Aunt lodged the complaint, the police took her statement and sent her to medical examination and also took her to Learned Magistrate for recording the Statement under Sec.164 of Cr.P.C. Further she deposes that, the accused persons did not commit any sexual assault on her. Hence, this witness was treated as hostile to the prosecution case.
17. PW5-grandmother of the victim girl, PW6-mother of the victim girl, PW7-father of the victim girl turned hostile to the case of the prosecution and PW8-Complainant as well as the aunt of the victim girl deposes that, as the victim girl did not return from the school, she lodged the complaint as per Ex.P12.
18. PW1 the P.T.Teacher and the colleague of accused No.1 deposes that, the accused No.1 was Physical education teacher in Young's Scholar Academy as his colleague and he did not say about 11 Spl CC No.571/2014 the incident and thereby he turned hostile to the case of the prosecution.
19. PW2- Police constable and PW15-ASI deposes that, on 31.8.2014 as per the instructions of PSI, they and CW22 went to trace out accused No.1, on the same night at about 8 P.M., as per the information received from the informant, accused No.1 was in his house at Veerannanaplaya and at about 8.50 P.M., they apprehended accused No.1 and at about 9.30 P.M., they produced him [accused No.1] before the PSI and PW15 given Report as per Ex.P15.
20. PW3-Doctor deposes that, on 29.8.2014 as per the requisition of Police Inspector, Hebbala Police Station to examine the victim girl on the history of sexual assault, he [PW3] examined the victim girl and on examination, he opined that, the hymen of the victim girl was torned and not in-tact and he collected the articles belonging to the victim girl as per MOs-1 to 6 and issued Medical Certificate with regard to the victim girl as per Ex.P6. Further he deposes that, on 1.9.2014 at about 12 P.M., as per the requisition of Investigating Officer, he conducted medical examination of accused No.1 and opined that, accused No.1 is not incapable of doing any act like that of sexual intercourse and issued Medical Certificate with regard to accused No.1 as per Ex.P7. Further he deposes that, on 12.9.2014, at about 10.30 A.M. to 11.30 A.M., as per the requisition of the Investigating Officer, he conducted medical examination of accused No.2 and opined that, accused No.2 is not incapable of doing any act like that of sexual 12 Spl CC No.571/2014 intercourse and issued Medical Certificate with regard to accused No.2 as per Ex.P8.
21. PW9-WPC deposes that, on 29.8.2014 as per the instructions of PSI, she took the victim girl for medical examination to Dr.Ambedkar Medical College and after examination, she produced the victim girl before the complainant police.
22. PW10-Police constable deposes that, on 1.9.2014 as per the instructions of PSI, he took accused No.1 for medical examination to Dr.Ambedkar Medical College and after examination, he produced accused No.1 before the complainant police.
23. PW11- Head constable deposes that, on 2.9.2014 as per the instructions of PSI, he took the sealed articles to FSL and produced Acknowledgement issued by the FSL to the Police Inspector and given Report as per Ex.P13.
24. PW12- Head Constable and PW18-ASI deposes that, on 11.9.2014, they were deputed to trace out accused No.2, they went to Tumkur and as per the information given by the informant, they went to Maraluru and apprehended accused No.2 and brought back him [accused No.2] to Bangalore and produced him before the Police Inspector and PW18 has given his Report as per Ex.P19.
25. PW13-Co-ordinator-SJPU deposes that, on 29.8.2014, the Investigating Officer of Hebbal Police Station telephoned to her 13 Spl CC No.571/2014 and requested her to do counseling of the victim girl under the POCSO Act, she went to the Police Station at about 11-11.30 A.M., when she went to the Police Station, the police officers and the victim girl was there, she took the victim girl to a separate room and typed her statement in the computer and gave it to the Investigating Officer. She ]PW13] further deposes that, when she [PW13] enquired the victim girl, the victim girl told that, she was aged 14 years and studying in 9th standard, when she was studying in 7th standard in Malleswaram school, she came in contact with one Praveen, the said fact was came to the knowledge of her parents, they advised her and thereafter they joined her to Young's Scholar Academy school, she was interested in sports, there Muniraj [accused NO.1 herein] was the P.T.Teacher and said Muniraj was very close to her, from the month of December, Muniraju for 4-5 times on every Saturday had sexual intercourse with her, that on 27.8.2014, when her [victim girl] mother had gone to Tamil Nadu, Muniraju took her to Tumkuru, there, Praveen, Mahesh and Karthik took her to a house near Tumkuru Railway station, she was taken to Yeshwanthpura Railway station in one Omni car and from there in the train, she was taken to Tumkur to a house in an auto, in the said house, a lady was there, the victim girl told that, in the said house a lady, Muniraju, Praveen , Mahesh and Karthik were there, the said lady was the sister of Muniraju, thereafter, at about 7-7.30 P.M., she was taken to a different house, in the said house, she was offered meals, after she had meals, she was unconscious, when she woke up on the next day morning, she found that there was no clothes on her, in the said house, herself and Muniraju were only there and as such, Munirjau had committed rape on her, the 14 Spl CC No.571/2014 boys who had accompanied her also had sexual intercourse with her, hence, she became tired, thereafter she wore the clothes and the said boys brought her back to Bangalore and left her at Majestic Railway station, then, the victim girl telephoned to her mother through somebody's mobile and asked her parents to come to Majestic and accordingly, her parents came to Majestic and took her back to home and thereafter produced her before the complainant police. The said Statement of the victim girl was typed in the computer in the Police Station itself and handed over it to the Investigating Officer and after reading the same to the victim girl, she has signed on it.
26. PW13 further deposes that, again on 30.8.2014, the Investigating Officer called her to record the statement of the victim girl, she has again conducted counseling of the victim girl, in her 2nd statement, the victim girl has stated that, when she was studying in 9th standard, she came in-acquaintance with the P.T master Muniraju [accused No.1 herein] and she had told her friends that, she and Muniraju were loving each other , during the month of January-2013, said Muniraju took her to sports room and had sexual intercourse with her, she has not told that the said fact to anyone in her house, since 10 days back, Praveen met her near a shop and she started talking with him, that on 25.8.2014, when she [victim girl] was returning from school, Praveen met her and he got introduced to his friends by names Mahesh and Karthik, she was talking with them as friends, that on 27.8.2014, she, Praveen, Mahesh and Karthik discussed to go for outing, on the next day i.e., on 28.8.2014, the victim girl told her grandmother 15 Spl CC No.571/2014 that she is going to school, there Praveen, Mahesh and Karthik came in a Maruthi omni van and they took her to Ring Road along with the girlfriend of accused No.2 in a van and went to a house wherein they had food and in the night, Praveen and Mahesh both had sexual intercourse with her. On the next day, in the same Maruthi Van, they dropped her at Yeshwanthpura railway station and asked the victim girl to get down at Majestic, the victim girl got down at Majestic and called her mother through phone and asked her mother to take her.
27. Further, PW13 deposes that, on 6.9.2014, she again conducted Counselling of the victim girl as per the requisition of the Police Inspector of Hebbala Police Station. The victim girl stated that, she was loving accused No.2 and in order to safeguard him, she told lie before the police and her parents. On 5.9.2014, the victim girl was taken before the Psychologist, wherein she stated that, she had told her mother that during January, February-2014, the accused No.1 had sexual intercourse with her on 5 to 6 times and thereafter, she has consented for sex with accused No.2 and after recording the statement of the victim girl, she [PW13] handed over the same to the Investigating Officer.
28. PW14-School Watchman of Young's Scholar Academy, deposes that, accused No.1 was working as P.T.Master in the said school and he does not know the victim girl. Learned Public Prosecutor treated this witness as hostile to the case of prosecution.
16 Spl CC No.571/201429. PW16-social worker deposes that, about 1 to 1 ½ years back [this witness was examined on 9.3.2016] the PSI of Hebbala Police Station had called him and CW11 to the Police Station, in the Police Station, the victim girl and her parents were also there, thereafter, they all went to Young's Scholar school, and the victim girl had shown the room in which accused No.1 had committed the offence, the police drawn Spot Mahazar as per Ex.P17 and he [Pw16] signed to the Spot Mahazar.
30. PW17 deposes that, on 13.9.2014, Hebbal Police had called him and CW12 to the Police Station, when they went to the Police Station, accused No.2 was there, they all went with accused No.2 to Tumkur, there, accused No.2 took them to a house at Cauvery Road, where accused No.2 had committed the offence, the police conducted spot Mahazar as per Ex.P18 and obtained his [PW17] signature to Ex.P18.
31. PW19- the then PSI of complainant Police Station deposes that, on 28.8.2014 when he was in the Police Station, night at about 10.35 P.M., the complainant came to the Police Station and given complaint as per Ex.P12, after receipt of the complaint, he registered a case in Cr.No.205/2014 as per FIR-Ex.P20, he sent information to police control room regarding missing of the victim girl, on the next day, the parents of the victim girl at about 10 A.M., came to the Police Station along with the victim girl, the victim girl was sent for counseling and given her statement, that on 29.8.2014, between 3 P.M to 4 P.M., he along with CW10 and CW11 went to Young Scholar's school and conducted the spot 17 Spl CC No.571/2014 mahazar as per Ex.P17 shown by the victim girl, thereafter, he sent the victim girl for Dr.Ambedkar Medical Hospital for medical examination, that on 31.8.2014, he deputed CWs-21, 22 and 26 for tracing out accused No.1, on the same day night at about 9.30 P.M., CWs-21, 22 and 26 apprehended accused No.1 and produced before him, he enquired accused No.1 and arrested him and recorded the voluntary statement of accused No.1, that on 1.9.2014, he sent accused No.1 for medical examination to Dr.Ambedkar Medical Hospital along with CW18 and after examination, CW18 produced accused No.1 before him, he has recorded the statement of the victim girl as per Exs.P21 and P22.
32. PW20- Police Inspector deposes that, he obtained the case records from CW27 and took up further investigation of this case, that on 2.9.2014, he sent the seized articles for FSL examination, that on 6.9.2014, he sent Requisition to Smt.Arogyamma, Co-ordinator, SJPU to conduct counseling on the victim girl, that on 7.9.2014, he deputed his staffs to trace out accused No.2, that on 11.9.2014, accused No.2 was apprehended at 6.30 P.M., and he was produced before him [PW20], he enquired accused No.2 and arrested him and recorded his voluntary statement, that on 12.9.2014, he sent accused No.2 for medical examination to Dr.Ambedkar Medical Hospital along with CW19, after medical examination, CW19 has produced accused No.2 before him [PW20], that on 13.9.2014, he along with panchas and accused No.2 went to Tumkur, Justice Ramajois Nagar, Kauvery Road, House No.201, 1st floor, wherein accused No.2 committed the rape on the victim girl, thereafter, he [PW20] conducted the Spot Mahazar as per 18 Spl CC No.571/2014 Ex.P18 and returned back to the Police Station, that on 14.9.2014, he [PW20] recorded the statements of CW3, CW4 and CW5, after completion of the investigation formalities, he submitted charge-sheet to the court against accused Nos.1 and 2.
33. On the basis of the evidence of the aforesaid witnesses, learned Public Prosecutor submitted his arguments. He argued that thought the victim girl-PW4 has not properly deposed about the fact that, accused Nos.1 and 2 committed sexual assault on her and she has given different contradictory statements, that may be due to the circumstances, the victim girl might have made said different statements. However, on the basis of the medical evidence and Investigating Officer evidence, this court may proceed to convict the accused persons.
34. On the other hand, the learned defence counsel for accused No.1 argued that, there are contradictory versions in the statement of the victim girl-PW4. In the evidence before this court, she [PW4] has not supported the case of prosecution, her parents and aunt also not supported the case of the prosecution and only on the basis of the Doctor evidence and the Investigating Officer evidence, this court cannot convict accused No.1, as the prosecution failed to prove the guilt of accused No.1 beyond all reasonable doubt. Therefore, learned defence counsel for accused No.1 submitted that, he [accused No.1] is entitle to an order of acquittal.
19 Spl CC No.571/201435. On the other hand, learned defence counsel for accused No.2 also argued similarly to the arguments of accused No.1, therefore, prays that, accused No.2 is also entitle to an order of acquittal
36. In the background of the arguments submitted by the learned Public Prosecutor and after hearing the arguments of the learned defence Counsels 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 prosecution witnesses by considering their version in the cross- examination before accepting their evidence.
37. The prosecution case is that, accused No.1 being the P.T. Teacher in a school wherein the victim girl was studying, had sexual intercourse with the victim girl repeatedly since one year prior to the date of present incident. Thereafter, it is the further case of the prosecution that, accused No.2 herein also took the victim girl to Tumkur on 28.8.2014 and on that night itself, he [accused No.2] had sexual intercourse with the victim girl. Therefore, the prosecution contended that, accused Nos. 1 and 2 have committed the offence of rape on the victim girl.
38. On perusal of the evidence placed by the prosecution, the first and foremost evidence is the evidence of victim girl-PW4. At the time of incident she was aged 15 years and at the time of giving evidence i.e., in the year 2015 she was aged 16 years.
20 Spl CC No.571/2014During her chief examination itself, she turned hostile to the prosecution case, she was cross-examined by learned Public Prosecutor, even in the cross-examination and after confronting the statements given by her, she has denied the suggestions put by learned Public Prosecutor, thereby, from the evidence of PW4-victim girl, prosecution has failed to extract any evidence in order to show that, these accused Nos. 1 and 2 have committed the alleged offence. Even the victim girl's grand-mother who is examined as She also not supported the case of the prosecution. She was cross-examined by learned Public Prosecutor, inspite of the same, nothing worth elicited from the evidence of PW5 to support the case of the prosecution. Likewise, PW6- mother of the victim girl and PW7-father of the victim girl have also not supported the case of the prosecution. Inspite of their cross-examinations by learned Public Prosecutor, nothing worth elicited from their evidence to support the case of the prosecution. PW8-Aunt as well as the complainant deposed about lodging of the complaint. Her [PW8] evidence is with regard to missing of the victim girl. She [PW8] did not depose anything about the rape committed by accused Nos. 1 and 2 on the victim girl.
39. The material witnesses in this case are PW1-victim girl her parents and her grandmother who are examined as PW5 to PW7, but they are all turned hostile to the prosecution case.
40. The other witnesses examined by the prosecution are police officers, the Co-ordinator of SJPU, Doctor and Mahazar witnesses. In this case, Doctor who is examined as PW3 who 21 Spl CC No.571/2014 conducted medical examination of the victim girl and accused Nos. 1 and 2, deposed that, on 29.8.2014, he examined the victim girl and given Medical certificate as per Ex.P6, he also examined accused No.1 and given Medical certificate as per Ex.P7 and he also examined accused No.2 and given Medical certificate as per Ex.P8. In his evidence, he deposed that, at the time of examination of the victim girl, he found some stains on her clothes and he collected the said clothes and he also collected vaginal swab and vaginal smear as per MOs-1 to 6. He further deposed that, he has not given any final opinion as he had sent the said articles to FSL for scientific examination and he has not received the FSL Report and till the date of his evidence before the court and therefore, he [PW3] has not given any final opinion.
41. It is true that, in Ex.P6 it is mentioned that, the hymen of the victim girl was ruptured. PW3-Doctor further deposes that, the victim girl was used to sexual act 2 days prior to the medical examination. According to the prosecution case, the victim girl was raped by accused No.1 one year prior to the date of incident and thereafter, that on 28.8.2014, the victim girl was raped by accused No.2. It is pertinent to note that, at the time of medical examination of accused No.2-karthik, the Doctor-PW3 has opined that, accused No.2, since 4 days prior to medical examination, did not involve in sexual activities. Further, it is also pertinent to note that, though the Doctor-PW3 has found some stains in the clothes of the victim girl, but, at the time of her medical examination of accused Nos.1 and 2, he has not collected any specimen samples like pubic hair, nail clippings, spermatozoa of accused Nos.1 and 2, 22 Spl CC No.571/2014 so as to compare the same with the stains found on the clothes of the victim girl. Therefore, though there was medical evidence to show that, the victim girl was used to an act like that of sexual intercourse, only on the basis of the medical evidence, it cannot be said that, these accused Nos. 1 and 2 had committed rape on her. Therefore, the medical evidence will not make any help to the case of the prosecution in the present facts and circumstances of the case.
42. During the course of arguments, the learned defence counsels for accused No.1 and accused No.2 brought to the notice of this court that, the victim girl has given 3 different statements before the Co-ordinator of SJPU, which are marked as Exs.P21 to P23 i..e, Counseling Reports of the victim girl. In the Statement recorded under Sec.164 of Cr.P.C as per Ex.P20, the victim girl has not made any allegation against accused No.2-Karthik, but, she has made the allegations only against accused No.1-Muniraju. However, in her evidence before this court, the victim girl has completely turned hostile to the prosecution and she has not made any allegations against accused No.1 and accused No.2. On going through the Statements made by the victim girl as per Exs.P21 to P23-Counselling Reports, the victim girl has referred to the names of Muniraju [accused No.1 herein], Karthik [accused No.2 herein], Praveen and Mahesh who are the other 2 persons who were not made as accused persons in this case. Though, learned Public Prosecutor argued that, the Doctor evidence is available to show that, the hymen of the victim girl was ruptured, but the evidence of Doctor-PW3 cannot be taken into consideration so as 23 Spl CC No.571/2014 to say that, accused Nos. 1 and 2 had committed the rape on the victim girl. It is also pertinent to note that, the victim girl herself did not make any allegations against accused No.1 and accused No.2 in her evidence before the court.
43. Further the learned defence counsel for accused No.1 brought to the notice of the court that, accused No.1 was the P.T.Teacher wherein the victim girl was studying and the victim girl was loving him and as he refused her proposal, a false complaint has been filed against accused No.1. Further, it was also brought to the notice of the court that, at the time of examination of accused No.1 by the Doctor-PW3 he told that, he [accused No.1] did not have any physical relationship with the victim girl and the Doctor has specifically mentioned in the Medical Certificate of accused No.1 as per Ex.P7 that, accused No.1 told that, he did not have any sexual intercourse with the victim girl. Further it was also brought to the notice of the court that, at the time of producing accused No.1 before the court through Remand Application, this accused No.1 was subjected to ill-treatment by the complainant police and that was pleaded before the Judge and the same has been written in the order sheet dated: 1.9.2014. It was also brought to the notice of the court that, accused No.1 being the P.T.Teacher of the school, wherein the victim girl was studying, he has not committed any act on the victim girl, as alleged against him. Further, the learned defence counsel for accused No.2 also brought to the notice of the court, that accused No.2 is a student and he has also not committed any act on the victim girl, as alleged against him.
24 Spl CC No.571/201444. In this case, it is noticed by the court from the records i..e, during the investigation, the Investigating Officer has written one Phone Number 8867717655 stating that, the victim girl had conversation with the person who had such phone number and the location was at Tumkur. However, the Investigating Officer has not collected the details of the calls and not even collected whether such telephone number belong to accused No.2. Therefore, without producing the evidence to show that, such telephone number belong to accused No.2, the court cannot say that, the victim girl had conversation with accused No.2 and it is accused No.2 who took the victim girl to Tumkur and had sexual intercourse with her. The Investigating Officer ought to have produce the documents to show that the telephone number stands in the name of accused No.2.
45. Further, the prosecution in this case has not placed the FSL Report so as to say that, accused Nos. 1 and 2 were the perpetrators of the crime. As the victim girl has given 3 different versions and she had referred to two other persons by names Praveen and Mahesh, but, they were not arrayed as accused in this case and as the victim girl has not withstand her statements either made before the Learned Magistrate as per Ex.P20 or before the Co-ordinator of SJPU as per Exs.P21 to P23 and further the evidence of the Doctor-PW3 that, accused No.1 and accused No.2 did not involve in sexual activities 2 days prior to the date of medical examination. For all these reasons, this court is of the opinion that, the prosecution has failed to prove the guilt of accused No.1 and accused No.2 beyond any reasonable doubt.
25 Spl CC No.571/2014Therefore, extending benefit of doubt to accused Nos. 1 and 2, they [accused Nos. 1 and 2] are entitle to an order of acquittal. Accordingly, I answer POINT NOS.1 TO 5 IN THE NEGATIVE.
46. POINT NO.6: In view of my aforesaid discussions, I proceed to pass the following:
ORDER In exercise with the powers conferred upon me under Criminal Procedure Code, accused No.1 is acquitted of the offences punishable under Sec.376 of IPC and under Sec.5(l), Sec.5(o) r/w Sec.6 of POCSO Act, 2012. His [accused No.1] bail bond and surety bond obtained earlier stands cancelled. However, the bail bond and the surety bond executed by accused No.1 on 25.1.2017 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.
Further, accused No.2 is also acquitted of the offences punishable under Sec.376 of IPC and Sec. 3 r/w Sec. 4 of POCSO Act, 2012. His [accused No.2] bail bond and surety bond obtained earlier stands cancelled. However, the bail bond and the surety bond executed by the accused No.2 on 25.1.2017 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.26 Spl CC No.571/2014
MOs-1 to 7 being worthless are ordered to be destroyed after the appeal period is over.
[Dictated to the Stenographer partly and directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 27th day of February, 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
27.2.2017: Victim compensation: In so far as victim compensation is concerned, this court opined that, the victim girl is not entitled for any compensation because, she being educated and aged 16 years, she did not support the case of the prosecution. Her parents, grand-parent also not supported the case of the prosecution. Therefore, the victim girl is not entitled for victim compensation.
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Mallikarjuna CW15 1.10.2015
Pw.2 Kemparaju.A.N CW21 13.10.2015
Pw.3 Dr.B.M.Nagaraj CW14 13.10.2015
Pw.4 Victim girl CW2 24.11.2015
Pw.5 Sarojamma CW5 24.11.2015
27 Spl CC No.571/2014
Pw.6 Yashoda CW4 24.11.2015
Pw.7 Selvakumar CW3 24.11.2015
Pw.8 Pramila CW1 21.12.2015
PW.9 Bhagyamma CW17 4.1.2016
PW.10 Sureshbabu CW18 4.1.2016
PW11 Prasannakumar CW20 4.1.2016
PW.12 V.Krishnappa CW24 27.1.2016
PW.13 Arogyamma CW9 9.3.2016
PW.14 Babaiah CW6 9.3.2016
PW.15 N.Munirajaiah CW26 9.3.2016
PW16 C.Kumar CW10 9.3.2016
PW17 Sridhar CW13 9.3.2016
PW18 Jayanna CW25 9.3.2016
PW19 Shivaputrappa.T.Magod CW27 9.3.2016
PW20 Nagesh.S.Aslar CW28 16.1.2017
Documents marked for the prosecution:
Ex.P1 Statement of PW1 before the complainant police
Ex.P2 Letter dated: 7.9.2014 written by Head Mistress,
Young Scholars Academy, Viswanath Nagena Halli, RT Nagar Post, Bangalore, to the Police Inspector, Hebbala Police Station, Bangalore regarding the details of accused No.1 Ex.P3 Appointment Letter issued by Young Scholars Acadamy in respect of accused No.1 Ex.P4 Resignation Letter by accused No.1 to the Young Scholars Academy school Ex.P5 Relieving Letter of accused No.1 from Young Scholars Academy 28 Spl CC No.571/2014 Ex.P6 Medical certificate of the victim girl Ex.P6(a) Signature of PW3 Ex.P6(b) Signature of PW4 Ex.P7 Medical certificate of accused No.1 Ex.P7(a) Signature of PW3 Ex.P7(b) Signature of accused No.1 Ex.P8 Medical certificate of accused No.2 Ex.P8(a) Signature of PW3 Ex.P8(b) Signature of accused No.2 Ex.P8(b) Signature of PW20 Ex.P9 Statement given by PW5 before the complainant police Ex.P10 Statement given by PW6 before the complainant police Ex.P11 Statement given by PW7 before the complainant police Ex.P12 Complaint dated: 28.8.2014 Ex.P12(a) Signature of PW8 Ex.P12(b) Signature of PW19 Ex.P13 Report given by PW11 before the complainant police Ex.P13(a) Signature of PW11 Ex.P13(b) Signature of PW20 Ex.P14 Statement given by PW14 before the complainant police Ex.P15 Report given by PW15 before the complainant police regarding apprehending of accused No.1 and producing him [accused No.1] before the PSI 29 Spl CC No.571/2014 Ex.P15(a) Signature of PW15 Ex.P15(b) Signature of PW19 Ex.P16 Report given by PW15 before the complainant police regarding obtaining of articles belonging to the victim girl and producing the said articles before the PSI Ex.P16(a) Signature of PW15 Ex.P17 Spot Mahazar dated: 29.8.2014 conducted in Young Scholars Academy, V.Nagenahalli, Bangalore, in a room which is outside the basketball ground, where accused No.1 had committed the rape on victim girl Ex.P17(a) Signature of PW16 Ex.P17(b) Signature of PW19 Ex.P17(c) Signature of PW4 Ex.P18 Spot Mahazar dated: 13.9.2014 conducted at Tumkur, Justice Ramjois Nagar, Cauvery Road, House No.201, 1st Floor, wherein accused No.2 committed the rape on the victim girl Ex.P18(a) Signature of PW17 Ex.P18(b) Signature of PW20 Ex.P19 Report given by PW19 before the complainant police regarding tracing of accused No.2 Karthik Ex.P19(a) Signature of PW18 Ex.P20 FIR Ex.P20(a) Signature of PW19 Ex.P20 Statement of the victim girl recorded under Sec.164 of Cr.P.C before the 4th ACMM, Bangalore.
Ex.P20(a) Signature of PW4 Ex.P21 Counselling Report dated: 29.8.2014 of PW4-victim girl before the SJPU Co-ordinator 30 Spl CC No.571/2014 Ex.P22 Counselling Report dated: 30.8.2014 of PW4-victim girl before the SJPU Co-ordinator Ex.P22(a) Relevant portion of Ex.P22 Ex.P22(b) Relevant portion of Ex.P22 Ex.P23 Counselling Report dated: 6.9.2014 of PW4-victim girl before the SJPU Co-ordinator Ex.P23(a) Relevant portion of Ex.P23 Ex.P23(b) Relevant portion of Ex.P23 Ex.P23(c) Relevant portion of Ex.P23 Ex.P23(d) Relevant portion of Ex.P23 Ex.P24 Acknowledgement given FSL for having received the sealed articles from Hebbala Police Station Ex.P24(a) Signature of PW20 Material Objects marked for the prosecution:
MO1 Jeans pant MO2 Black Top MO3 White and pink coloured kacha MO4 Black coloured bra of the victim girl MO5 Banian MO6 Vaginal swab and smear MO7 CD
Witness examined, documents and MOs marked for accused Nos.1 and 2: NIL LIV Addl., City Civil & Sessions Judge, Bangalore.
31 Spl CC No.571/201427.2.2017 Accused Nos. 1 and 2 are present.
Judgment pronounced in open court:[ Vide separate detailed Judgment] In exercise with the powers conferred upon me under Criminal Procedure Code, accused No.1 is acquitted of the offences punishable under Sec.376 of IPC and under Sec.5(l), Sec.5(o) r/w Sec.6 of POCSO Act, 2012. His [accused No.1] bail bond and surety bond obtained earlier stands cancelled. However, the bail bond and the surety bond executed by accused No.1 on 25.1.2017 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.
Further, accused No.2 is also acquitted of the offences punishable under Sec.376 of IPC and Sec. 3 r/w Sec. 4 of POCSO Act, 2012. His [accused No.2] bail bond and surety bond obtained earlier stands cancelled. However, the bail bond and the surety bond executed by the accused No.2 on 25.1.2017 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.
MOs-1 to 7 being worthless are
ordered to be destroyed after the appeal
period is over.
[RAJESHWARI.N.HEGDE]
LIV ADDL., CITY CIVIL &
SESSIONS JUDGE,
BENGALURU CITY
32 Spl CC No.571/2014
27.2.2017
Victim compensation:
In so far as victim compensation is concerned, this court opined that, the victim girl is not entitled for any compensation because, she being educated and aged 16 years, she did not support the case of the prosecution. Her parents, grand-parent also not supported the case of the prosecution. Therefore, the victim girl is not entitled for victim compensation.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY 33 Spl CC No.571/2014