Bangalore District Court
Unknown vs Adeveppa @ Santhosh on 25 April, 2019
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 25th DAY OF APRIL, 2019
: PRESENT :
SMT.SARASWATI V.KOSANDAR, B.Com.,LL.M,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO.895/2018
COMPLAINANT :
The State of Karnataka by
K G Halli Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
Adeveppa @ Santhosh,
S/o. Govindappa Thippannavar,
Aged about 25 years,
R/at: Aralikatte village,
Hirekerur Taluk,
Haveri District.
[Reptd by Mr. SPS.advocate]
***
2
Spl.C C.895/18
1. Date of Commission : 11.12.2017
Of Offence
2. Date of Report :
24.04.2018
Of Offence
3. Date of arrest of accused : 20.09.2018
4 Date of release on Bail 12.3.2019
5 Period undergone in 5 months 22 days
Judicial Custody
6 Name of the complainant : Victim
7. Date of Commencement of :
07.03.2019
recording evidence
8. Date of Closing of Evidence : 07.03.2019
9. Offences complained of : Sec.366, 376, 323 and 504 of IPC
and u/S 5(l) r/w 6 of POCSO
Act, 2012
10. Opinion of the Judge : Accused is found not guilty
11 Order of the Court : As per final order
JUDGMENT
The Police Inspector, Kadugondanahalli, Bangalore City has filed the charge sheet against the accused for offences punishable under Sections 366, 376, 323 and 504 of IPC and u/S 5(l) r/w 6 of POCSO Act, 2012.
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2. In brief, the case of the prosecution reads as under:
It is the case of the prosecution that CW1 - minor victim is the daughter of CW2 & CW3. That on 1.12.2017, the accused called through phone to the victim and made her to come to Bengaluru with an assurance to marry her and on 11.12.2017, the accused called the victim to his room at Nagavara and had forcible sexual intercourse with her and subsequently on 3.4.2018 also accused had forcible sexual intercourse with her at Kunimellahalli village, Haveri taluk, due to which she became two months pregnant. Later he refused to marry her and abused her in filthy language and assaulted the victim girl and thereby it is alleged that the accused has committed offences of kidnapping of minor girl and sexual assault on her, punishable u/s 366, 376, 323 and 504 of IPC and u/S 5(l)(j)(ii) r/w 6 of POCSO Act, 2012 and Sec. 504 & 323 of IPC.
3. The records shows that, on the basis of the complaint given by the victim girl, the Investigating Officer registered a case against the accused in Crime No.98/2018. Investigating Officer visited the spot of occurrence and drawn necessary mahazar, recorded statement of the 4 Spl.C C.895/18 prosecution witnesses. After securing minor victim girl she was sent to Primary Health Center, Rattihalli, Hirekerur taluk, Haveri district for medical examination. Investigating Officer got recorded the 164 statement of victim girl before the learned Addl Sr. Civil Judge & JMFC, Hangal. Accused was arrested. He was also sent to Dr. B. R. Ambedkar Medical College & hospital for medical examination. After collecting necessary documents and by completing investigation I.O has submitted charge sheet against the accused for the offences punishable u/s 366, 376, 323 and 504 of IPC and u/S 5(l) r/w 6 of POCSO Act, 2012.
4. The charge sheet was submitted before this court. Cognizance was taken and a case is registered in Special CC. Copy of the charge sheet were served on the accused in compliance with Section 207 of Cr.P.C
5. After hearing on both sides the charge was framed against accused for offences punishable under Sections 366 and 376 of IPC & u/S 5(l)(j)(ii) r/w 6 of POCSO Act, 2012 and Sec. 504 & 323 of IPC. The charges were read over and explained to the accused in Kannada the language known to him. Accused has pleaded not guilty and 5 Spl.C C.895/18 claimed to be tried. Therefore, the case was posted for evidence of the prosecution.
6. In order to prove the guilt of the accused , the prosecution has examined 3 witnesses as PW1 to PW3 and got marked 8 documents at Ex.P1 to Ex.P6. PW1 is the complainant/victim, PW2 and 3 are the parents of victim girl. PW1 to PW3 have completely turned hostile and failed to support the case of the prosecution. Though the the parents of victim and victim herself not supported the case of prosecution, this court issued summons to remaining witnesses. However, the concerned police returned the process unexecuted and failed to secure and produce the remaining witnesses before the court. Therefore, the prayer of the learned Public Prosecutor to reissue summons against remaining witnesses was rejected and prosecution side evidence was closed. Further, since there was no incriminating evidence against accused, his statement under Section 313 of Cr.P.C has been dispensed with.
7. Heard the arguments of learned Public Prosecutor for State and the learned counsel appearing for accused.
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8. Now, the points that arise for my consideration are as under:
1. Whether the prosecution has proved beyond reasonable doubt that on 1.2.2017, the accused called CW1the victim girl through phone and made her to believe that he would marry her and made her to come from Aravikatte village, Herekerur taluk, Haveri district to Bangalore and on 2.12.2017 the accused kidnapped CW1 with intent to seduce her to illicit intercourse and thereby committed offence punishable under Section 366 of I.P.C?
2. Whether the prosecution has proved beyond reasonable doubt that after kidnapping CW1 the victim girl, the accused took her to his rented house belonging to CW4, situated near Abaya Anjaneya Temple, Old KEB Road, opposite to JMJ hospital, Wad No.6, Nagavara and he had forcible sexual intercourse with her against her wish and will and thereby committed offence punishable u/S 376 of IPC?
3. Whether the prosecution has proved beyond reasonable doubt that after kidnapping CW1 the victim girl, the accused took her to his rented house belonging to CW4, situated near Abaya Anjaneya Temple, Old KEB Road, opposite to JMJ hospital, Wad No.6, Nagavara and he had forcible sexual intercourse with her inspite of her resistance and thereafter also accused took her to the said house weakly once and had forcible sexual intercourse 7 Spl.C C.895/18 with her and thereafter on 3.4.2018 accused took the Victim girl to CW6's house situated at Kunemellalli village, Haveri district and stayed with her in the said house till 9.4.2018 and had forcible sexual intercourse with her and due to which she became pregnant and thereby committed offence penetrative sexual assault, punishable u/S 5(l)(j)(ii) r/w 6 of POCSO Act, 2012 ?
4. Whether the prosecution has proved beyond reasonable doubt that after committing sexual assault on her she became pregnant and thereby when she asked to marry, on 13.4.2018 at about 6 pm the accused refused to marry her and abused her in filthy language and thereby committed offence punishable u/S 504 of IPC ?
5. Whether the prosecution has proved beyond reasonable doubt that the accused not only abused her in filthy language and also assaulted her and caused simple hurt and thereby committed offence punishable u/S 323 of IPC ?
6. What order?
9. My findings on the above points are as under: Point No.1 to 5 : In the negative Point No.6 : As per final orders for the following 8 Spl.C C.895/18 REASONS
10. Points No.1 to 5: These five points are taken up together for discussion to avoid repetition of facts as they are interconnected to each other.
11. It is the case of the prosecution that CW1 - minor victim is the daughter of CW2 & CW3 and resident of Hirekerur Taluk, Haveri District. The accused is also native of Hirekerur taluk and on 1.12.2017 he called the victim girl through phone assured to marry her and made her to come to Bengaluru and made her to work as house maid and on 11.12.2017, the accused called the victim to his rented house situated near Abaya Anjaneya temple, Old KEB road, Opposite to JMG hospital, at Nagavara village belonging to CW4 and had forcible sexual intercourse with her repeatedly and subsequently on 3.4.2018 he took the victim girl to the house of CW6 situated at Kunimellahalli village, Haveri district and had sexual intercourse with her till 9.4.2018, due to which she became two months pregnant. When the victim girl informed about her pregnancy to the accused, he refused to marry her and on 23.4.2018, at 6 pm, at Gangenahalli bus stop the accused abused the victim girl in filthy language and assaulted by means of hands caused simple 9 Spl.C C.895/18 hurt by refusing to marry her and thereby it is alleged that the accused has committed offences of kidnapping of minor girl and sexual assault on her, punishable u/s 366, 376, 323 and 504 of IPC and u/s 5(l)(j)(ii) r/w 6 of POCSO Act, 2012 and Sec. 504 & 323 of IPC.
12. At the outset it is relevant to note here that Section 29 of Protection of Children from Sexual Offence Act, 2012 provides presumptions wherein the Special Court shall presume that the accused has committed or abetted or attempted to commit the offence as the case may be unless the contrary is proved. In this case, as noted above, the charge sheet is filed against the above accused for the offences punishable under Section 366, 376, 323 and 504 of IPC and u/S 5(l) r/w 6 of POCSO Act, 2012, but this court considering entire prosecution papers has framed charges against the accused for the offences punishable under Section 366, 376, 323 and 504 of IPC and u/S 5(l)
(j)(ii) r/w 6 of POCSO Act, 2012.
13. The prosecution in order to prove the charges leveled against the accused, the prosecution has examined the complainant/ victim as PW1 and the parents of the victim girl as PW2 and 3 respectively.
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14. PW1 who is the victim, in her evidence stated that CW2 is her father and CW3 is her mother and she knows the accused. She admitted her signature in the complaint when it is shown to her and same is marked as Ex.P1 and her signature as Ex.P1(a), but she states that she do not know the contents of the complaint. Though she admitted her signature in the spot mahazar and statement recorded under Section 164 of Cr.P.C, marked at Ex.P 2 & 3 respectively, she pleaded ignorance regarding contents of said documents and thereby she has also failed to support the case of prosecution. During crossexamination by the learned Public Prosecutor PW2 has denied that she has given statement against the accused by stating that he kidnapped and committed sexual assault on her .
15. The prosecution has examined the father and mother of victim girl CW2 and CW3 as PW2 and 3 who in their respective evidence, have stated that PW1 is their daughter and they know the accused, but categorically stated that they have not given any statement against the accused and thereby turned hostile to the case of prosecution. During crossexamination by the learned Public Prosecutor PW2 and 3 have denied that they have given statement against the accused as per Ex.P4 and 5 by 11 Spl.C C.895/18 stating that he kidnapped and committed sexual assault on victim girl .
16. On perusal of prosecution papers and both oral and documentary evidence on record it is seen that according to prosecution, the accused herein assured the victim girl to marry her made her to come to Bengaluru and had forcible sexual intercourse with her repeatedly at his rented house at Nagawara and thereafter took her to the house belonging to of CW6 at Kunamalli village at Haveri district kept her there till 9.4.2018 during which he committed sexual intercourse with her against her wish and made her two months pregnant and refused to marry her and abused and assaulted on her when she demanded to marry her and thereby committed offences of kidnapping and penetrative sexual assault on minor victim girl punishable under section 366 & 376 of IPC and Section 5(l) r/w 6 of POCSO Act. As noted above, in order to prove the offences as alleged against the accused though the prosecution examined complainant, victim girl and her father as PW1 to 3, they have all failed to depose anything against the accused. Even during crossexamination these witnesses have denied that the accused herein kidnapped and committed penetrative sexual assault on the victim girl 12 Spl.C C.895/18 and failed to support the very case of the prosecution, Even though these material witnesses resiled from the case of the prosecution, this court issued summons to remaining witnesses, but the concerned police returned the process unexecuted. Considering sufficient opportunity given to the prosecution and also the oral testimony of PW1 to 3, this court rejected the prayer of the learned public prosecutor to reissue process to remaining witnesses.
17. In this case, it is not in dispute that the victim girl is minor aged about 17 years as on the date of alleged offences and same is substantiated by the certificate issued by Head Master, Government High School, Aralikatte, taluk Hirekerur. Though the certificate issued by Head Master is not marked, the age of the victim is not disputed by the accused side. No suggestion is made to PW1 to 3 denying the fact that the victim girl was minor at the time of alleged offences. Further, the medical report of the victim produced along with charge sheet shows that there were ruptures in the hymen of the victim girl and she has been used to an act like that of sexual intercourse, but the prosecution has failed to connect the accused to the said act. Further in the complaint and statement of the victim it 13 Spl.C C.895/18 is alleged that on account of repeated sexual intercourse on the victim girl by the accused, she became two months pregnant and at that time, when she demanded to marry her, the accused refused to marry and abused her and assaulted her. However, as per medical report of the victim girl it is seen that UPT was negative and accordingly, the I.O has filed charge sheet against the accused for the offence punishable u/s 5(l) r/w Sec. 6 of the POCSO Act and not for the offence punishable u/s 5(j)
(ii) of POCSO Act. However, the prosecution has failed to establish and connect the accused with the alleged offences of kidnapping or penetrative sexual assault on the victim girl by him by placing necessary material on record. The oral and documentary evidence on record more particularly the versions of PW1 to 3 makes the entire case of prosecution doubtful and there is no sufficient material to say that accused has committed offences as alleged against him. The prosecution has miserably failed to put forth the cogent and satisfactory evidence to establish the offences and failed to discharge its initial burden to prove the guilt of the accused. Therefore, the benefit of doubt should go to the accused. In the result, I answer points No. 1 to 3 in the negative.
14Spl.C C.895/18
18. Point No.4: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for offences punishable u/Sec. 366 and 376 of IPC & u/S 5(l) r/w 6 of POCSO Act, 2012 and Sec. 504 & 323 of IPC.
(Dictated to the Stenographer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 25th day of April, 2019.) (SARASWATI V.KOSANDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Victim girl PW.2 Shivappa Daler PW.3 Hanumavva Daler LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Complaint Ex.P.1(a) Signature of PW1 Ex.P.2 Panchanama Ex.P.2(a) Signature of victim girl Ex.P.3 164 statement of victim girl Ex.P.3(a) Signature of victim girl 15 Spl.C C.895/18 Ex.P.4 Medical report of accused Ex.P.5 Statement of PW2 Ex.P.6 Statement of PW3 LIST OF MATERIAL OBJECTS MARKED NIL LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE NIL LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE NIL (SARASWATI V.KOSANDAR) LIII A.C.C & S Judge, Bangalore.
*** 16 Spl.C C.895/18 25.4.2019 Judgment pronounced in the open court, operative portion of which reads as under: ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for offences punishable u/Sec. 366 and 376 of IPC & u/S 5(l) r/w 6 of POCSO Act, 2012 and Sec. 504 & 323 of IPC.
(SARASWATI V.KOSANDAR) LIII A.C C & S Judge, Bangalore.
17 Spl.C C.895/18