Bangalore District Court
The State Of Karnataka vs Mohammad Sadiq on 25 September, 2017
IN THE COURT OF THE L ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
Dated this the 25th Day of September 2017
PRESENT
SMT. SUSHEELA B.A. LL.B.,
L Additional City Civil & Sessions Judge,
Bengaluru
SPECIAL C.C.No.291/2015
COMPLAINANT:
The State of Karnataka
By Ashok Nagar Police Station,
Bengaluru
By Public Prosecutor-Bengaluru
/ VERSUS /
ACCUSED:
1. Mohammad Sadiq,
S/o. Mohammad Fazulla, 29 years,
R/at. Ameena Manzil, No.21, 1st Floor,
Palm Grove Road, Victoria Layout,
Austin Town,
Bengaluru.
2. A.W. Azeezulla Khan,
S/o. Abdul Wahab, 68 years,
R/at. Ameena Manzil, No.21, Ground Floor,
Palm Grove Road, Victoria Layout,
Austin Town,
Bengaluru.
By Sri.I.A.K for A-1 & 2-Advocate
2 Spl.C.C.No.291/2015
1 Date of commission of offence 01-05-2014 to
22-11-2014
2 Date of report of occurrence 22-11-2014
3 Date of arrest of Accused No.1 & 2 23-11-2014
Date of release of Accused No.1 & 2 10-12-2014
Period undergone in custody 17 Days
by Accused No.1 & 2
4 Date of commencement of evidence 17-06-2016
5 Date of closing of evidence 09-08-2017
6 Name of the complainant Vani Kantli
7 Offences complained of Sec. 370(5) r/w. 34-
IPC, Sec.23-J.J. Act &
Sec. 354-A-IPC
r/w. Sec. 9(n) (p)
r/w.10-POCSO Act.
8 Opinion of the Judge Accused No.1 and
2 are acquitted
9 Order of Sentence As per the final
order
JUDGMENT
This charge sheet filed by Police Inspector-Ashok Nagar Police Station-Bengaluru, against accused No.1 and 2 for the offences punishable under Section 354-A, 370(3), 370-A of I.P.C., Section 7, 8, 9 (n) (p) read with Section 10, 12 of POCSO Act, 2012 and Section 23 and 24 of Juvenile Justice (Care and Protection of Children) Act, 2000. 3 Spl.C.C.No.291/2015
2. Since it is a case of offence against minor girls, as such the name of the victim girls is no where shown in the course of judgment as mandated under Section 227 (A) of Cr.P.C. However their names are referred to as 'victim girls' wherever their names are necessary.
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
The accused No.1 and 2 are residing at Amina Manzil, 21, Palm Grove Road, Victoria Layout, Austin Town, Bengaluru. Both the accused trafficked Cw.4 to Cw.6-the victim girls through middleman from Bellary District and forcefully kept them for domestic help in their home and they were made to work for more than 12 hours and were forced to convert their religion from Hindu to Muslim, study Arabic and were abused physically for small mistake and not provided proper food. The accused No.1 being son-in-
law of accused No.2, tried to touch them when nobody is around and opens his inner garments in front of the 4 Spl.C.C.No.291/2015 children and tried to use them sexually by hugging and kissing them. The victim girls were panicked by the erotic behaviour of the accused No.1 and were afraid to stay there and ran away from the said house and were found by Child Line in the railway platform and they were admitted to Government Girls Home on Hosur Road. On the basis of said complaint, the complainant/police registered the case against the accused No.1 and 2 for the offences punishable under Section 354-A, 370(3), 370-A of I.P.C., Section 7, 8. 9
(n)(p) read with Section 10, 12 of POCSO Act, 2012 and Section 23 and 24 of Juvenile Justice (Care and Protection of Children) Act, 2000.
4. The Investigating Officer has investigated the same and filed charge sheet against accused No.1 and 2 for the offences punishable under Section 354-A, 370(3), 370- A of I.P.C., Section 7, 8. 9 (n)(p) read with Section 10, 12 of POCSO Act, 2012 and Section 23 and 24 of Juvenile Justice (Care and Protection of Children) Act, 2000. 5 Spl.C.C.No.291/2015 Thereafter, after filing the charge sheet, the copies of charge sheet furnished to accused No.1 and 2.
5. While framing charge against the accused No.1 and 2, my learned predecessor in office framed charge on 17-03-2016 by passing an order in respect of charge for the offence punishable under Section 370(5) read with Section 34 of IPC and section 23 of J.J. Act against the accused No.1 and 2 and under Section 354-A read with section 9(n) and (p) read with section 10 of POCSO Act, against accused No.1 only. Accordingly, the contents of charge read over and explained in Kannada to accused No.1 and 2. The accused No.1 and 2 pleaded not guilty and submit crime to be tried. Thereafter the case against accused No.1 and 2 set down for prosecution evidence.
6. The prosecution in order to establish the guilt of the accused No.1 and 2 has examined as many as 17 witnesses as Pw.1 to Pw.17, got marked as many as 24 documents as Ex.P1 to Ex.P24 and closed its side evidence. 6 Spl.C.C.No.291/2015 As could be seen from the evidence of Pw.1 to Pw.11 and Pw.17-the police officials, doctor and NGOs deposed against accused No.1 and 2. In view of incriminating evidence appeared against accused No.1 and 2, they have been examined under Section 313 of Cr.P.C., by recording their statement. The accused No.1 and 2 denied the alleged incriminating evidence appeared against them. The accused No.1 and 2 have complied the provision of Section 437-A of Cr.P.C. Thereafter arguments heard from both the sides and the matter is set down for judgment.
7. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that arise for my consideration are as under:-
1. 1 ªÀÄvÀÄÛ 2£Éà DgÉÆæUÀ¼ÀÄ PÀæªÀĪÁV C±ÉÆÃPÀ£ÀUÀgÀ ¥Éǰøï oÁuÁ ¸ÀgÀºÀ¢Ý£À «PÉÆÖjÃAiÀiÁ ¯ÉÃOmï, D¹Öãï mË£ï, ¥ÁªÀiï UÉÆæêï gÉÆÃqï£À°ègÀĪÀ C«ÄãÁ ªÀÄAf¯ï, £ÀA.21 gÀ ©°ØAUï£À ªÉÆzÀ® ºÁUÀÆ £É® ªÀĺÀrAiÀÄ°è ªÁ¸ÀªÁVzÀÄÝ, ¢£ÁAPÀB24-11-2014£Éà E¸À«VAvÀ 3 ªÀµÀðUÀ¼À »AzÉ 2£Éà DgÉÆæAiÀÄ ¥Àwß C«Ä£Á ¨ÉÃUÀA gÀªÀgÀ ¥ÀjZÀAiÀÄzÀ ªÀåQÛUÀ¼ÁzÀ ZÁ¸Á-8-
PÀÄzÀÆݸïgÀªÀgÀ C¥Áæ¥ÀÛ ªÀAiÀĹì£À ªÀÄUÀ¼ÀÄ-ZÁ¸Á-4 ªÀÄvÀÄÛ ZÁ¸Á-9-²æêÀÄw.®Qëäà gÀªÀgÀ C¥Áæ¥ÀÛ ªÀAiÀĹì£À ªÀÄPÀ̼ÀÄ- 7 Spl.C.C.No.291/2015 ZÁ¸Á-5 ªÀÄvÀÄÛ ZÁ¸Á-6 gÀªÀgÀÄ ¨ÉAUÀ¼ÀÆjUÉ §gÀ¨ÉÃPÉAzÀÄ EZÉÒ¥ÀnÖzÀÝPÉÌ §¼Áîj¬ÄAzÀ PÀgÉvÀA¢zÀÄÝ, £ÀAvÀgÀ DgÉÆæ-1 ªÀÄvÀÄÛ 2 KPÉÆÃzÉÝñÀ¢AzÀ §®ªÀAvÀªÁV CªÀgÀÄUÀ¼À£ÀÄß ªÀÄ£É PÉ®¸ÀPÉÌ JgÀqÆ À ªÀÄ£ÉUÀ¼À®Æè vÉÆqÀV¹ zÉÊ»PÀ ±ÉÆõÀuÉUÉ M¼À¥Àr¹, ºÀtzÀ D«ÄõÀ MrØ ¸Àé®à ºÀtªÀ£ÀÄß ªÀiÁvÀæ CªÀgÀ vÁAiÀÄA¢jUÉ PÀ¼ÀÄ»¹ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 370(5) ¸ÀºÀªÁdPÀ PÀ®A 34 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s À£ÀÄß J¸ÀVzÁÝgÀÉAzÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªÀgÀÄ ¸ÀA±ÀAiÀiÁwÃvÀÀªÁV gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
2. 1 ªÀÄvÀÄÛ 2£Éà DgÉÆæUÀ¼ÀÄ ¸ÀªÀiÁ£À GzÉÝñÀ¢AzÀ ªÉÄÃ¯É ºÉýzÀ CªÀ¢üAiÀÄ°è vÀªÀÄä ªÀÄ£ÉUÀ¼À°è ZÁ¸Á-4 jAzÀ ZÁ¸Á- 6 gÀªÀjAzÀ CªÀgÀ EZÉÒUÉ «gÀÄzÀÞªÁV C¢üPÀ ªÉÃ¼É PÉ®¸À ªÀiÁr¹PÉÆAqÀÄ, J°èAiÀÄÆ ºÉÆgÀUÉ ºÉÆÃUÀ®Ä ©qÀzÉ PÉ®¸À ªÀiÁqÀĪÀ ¸ÀܼÀz¯ À Éèà G½zÀÄPÉƼÀÄîªÀ ªÀåªÀ¸ÉÜ ªÀiÁr, ¸ÀjAiÀiÁzÀ C£Àß, DºÁgÀ, ªÀ¸Àw, G¥ÀZÁgÀªÀ£ÀÄß ¤ÃqÀzÉ, vÀPÀÌ ¸ÀA¨sÁªÀ£ÉAiÀÄ£ÀÄß ¸ÀºÁ ¤ÃqÀzÉ D ªÀÄPÀ̼ÀÄ ªÀiÁ£À¹PÀªÁV ºÁUÀÆ zÉÊ»PÀªÁV £ÀgÀ¼ÀĪÀAvÉ ªÀiÁr PÀ®A 23 ªÀÄPÀ̼À £ÁåAiÀÄ (DgÉÊPÉ ªÀÄvÀÄÛ gÀPÀëuÉ) PÁAiÉÄÝ 2000 CrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s À£ÀÄß J¸ÀVzÁÝgÀÉAzÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªÀgÀÄ ¸ÀA±ÀAiÀiÁwÃvÀÀªÁV gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
3. 1£Éà DgÉÆæ vÀ£Àß ªÀÄ£ÉAiÀÄ°è AiÀiÁgÀÆ E®èzÀ ¸ÀªÀÄAiÀÄzÀ°è CAzÀgÉ zÀÆgÀÄ PÉÆqÀĪÀÅzÀQÌAvÀ ªÉÆzÀ®Ä 6 wAUÀ¼ÀÄUÀ½AzÀ ZÁ¸Á-4 jAzÀ ZÁ¸Á-6 gÀªÀgÀ ªÉÄÃ¯É ¯ÉÊAVPÀ zËdð£Àå J¸ÀUÀĪÀ GzÉÝñÀ¢AzÀ §®ªÀAvÀªÁV CªÀgÀ ªÉÄÊ-PÉÊUÀ¼À£ÀÄß ªÀÄÄnÖ ªÀiÁvÀ£Ár¸ÀĪÀÅzÀÄ, CªÀgÀ PÉ£ÉßUÉ ªÀÄÄvÀÄÛ PÉÆqÀĪÀÅzÀÄ, vÀ©âPÉƼÀÄîªÀÅzÀÄ, vÀ£Àßä ¥ÁåAl£ÀÄß ©aÑ vÉÆÃj¸ÀĪÀÅzÀÄ ªÀiÁqÀÄvÁÛ ZÁ¸Á 4 jAzÀ ZÁ¸Á-6 gÀªÀjUÉ ¯ÉÊAVPÀ QgÀÄPÀļÀ ¤Ãr ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 354- J ¸À»vÀ ¯ÉÊAVPÀ C¥ÀgÁzÀsUÀ½AzÀ ªÀÄPÀ̼À ¸ÀAgÀPÀëuÁ C¢ü¤AiÀĪÀÄ 2012gÀ PÀ®A 9 (J£ï) ªÀÄvÀÄÛ (¦) ªÀÄvÀÄÛ ¸ÀºÀ PÀ®A 10 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s À£ÀÄß J¸ÀVzÁÝgÀÉAzÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªÀgÀÄ ¸ÀA±ÀAiÀiÁwÃvÀÀªÁV gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgA É iÉÄ?
4. AiÀiÁªÀ DzÉñÀ?
8. My findings on the above points are as under:- 8 Spl.C.C.No.291/2015
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: In the Negative.
Point No.4: As per the final orders for the following:
REASONS
9. Point No.1 to 3:-As these points are interrelated one, hence, I have taken up together for my consideration in order to avoid repetition of reasoning.
10. In order to prove the alleged offences against the accused No.1 and 2, the prosecution has examined in all 17 witnesses as Pw.1 to Pw.17, got marked 24 documents as Ex.P1 to Ex.P24.
11. As per the prosecution case, Pw.1 is the complainant, Pw.2 to Pw.11 and Pw.17 are the police officials, NGOs and doctor witnesses. Pw.12 to Pw.14 are the victim girls, Pw.15 and Pw.16 are the parents of the victim girls. Hence, this Court shall proceed to see whether 9 Spl.C.C.No.291/2015 the available evidence of said witnesses and the evidence of Pw.12 to Pw.16 are sufficient for establishing the alleged offences against accused No.1 and 2.
12. In order to establish the alleged offences against accused No.1 and 2, the prosecution is required to prove that the accused No.1 and 2 are residing at Amina Manzil, 21, Palm Grove Road, Victoria Layout, Austin Town, Bengaluru. Both the accused trafficked Cw.4 to Cw.6-the victim girls through middleman from Bellary District and forcefully kept them for domestic help in their home and they were made to work for more than 12 hours and were forced to convert their religion from Hindu to Muslim, study Arabic and were abused physically for small mistake and not provided proper food. The accused No.1 being son-in- law of accused No.2, tried to touch them when nobody is around and opens his inner garments in front of the children and tried to use them sexually by hugging and kissing them and thereby the accused No.1 and 2 10 Spl.C.C.No.291/2015 committed offences punishable under Section 354-A, 370(3), 370-A of I.P.C., Section 7, 8. 9 (n)(p) read with Section 10, 12 of POCSO Act, 2012 and Section 23 and 24 of Juvenile Justice (Care and Protection of Children) Act, 2000. Hence we shall proceed to see whether the prosecution has succeeded in establishing all the aforesaid ingredients of the alleged offences against accused No.1 and 2 beyond all reasonable doubt.
13. Before venturing to scan the available materials evidence on record, it is necessary to mention the very definition of offences under Section 370(5) read with Section 34 of IPC, Section 23 of J.J. Act and Section 354-A read with Section 9(n), (p) read with section 10 of POCSO Act.
Section 370(5) I.P.C defines that:
Trafficking of person-Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may 11 Spl.C.C.No.291/2015 extend to imprisonment for life, and shall also be liable to fine.
Section 34 of I.P.C defines that:
Acts done by several persons in furtherance of common intention-When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
Section 23 of J.J. Act, defines that:
Punishment for cruelty to juvenile of child:- Whoever, having the actual charge of or control over, a juvenile or the child, assaults, abandons, exposes or willfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.
Section 354-A of I.P.C defines that:
Sexual harassment and punishment for sexual harassment-
(1) A man committing any of the following acts-
(i) physical contact and advances involving
unwelcome and explicit sexual
overtures; or
12 Spl.C.C.No.291/2015
(ii) a demand or request for sexual
favours; or
(iii) showing pornography against the
will of a woman; or
(iv) making sexually coloured remarks,
shall be guilty of the offence of
sexual harassment.
(2) Any man who commits the offence
specified in clause(i) or clause(ii) or clause(iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Section 9(n) of POCSO Act, defines that:
Aggravated Sexual assault-whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child.
Section 9(p) of POCSO Act, defines that:
Aggravated Sexual assault-whoever, being in position of trust or authority of a child, commits sexual assault on the child in an institution or home of the child or any where else.13 Spl.C.C.No.291/2015
Section 10 of POCSO Act, defines that:
Punishment for aggravated Sexual assault- whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
14. By going through the evidence of Pw.1-Vani Kantli-Social Worker and State Co-ordinator of Bachpan Bachao Andolan has deposed in her chief examination favourable to the prosecution in respect of rescuing Cw.4 to Cw.6 who are working at the house of accused No.1 and 2. Through her the prosecution got marked Ex.P1-the complaint and her signature is Ex.P1(a) and Ex.P2-the spot mahazar and her signature is Ex.P2(a) and Ex.P2(b) and she has also identified the accused No.1 and 2.
15. The accused persons cross-examined this witness by eliciting some commission and omission and also elicited that she has not produced any document to show that she was having authority to file the complaint as 14 Spl.C.C.No.291/2015 per Ex.P1, for that it is her evidence that the letter head itself is the authority to file the complaint and to show that she is a co-ordinator in Bachpan Bachao Andolan. At the same time she has admitted that no such entry mentioned in Ex.P1 in respect that she is co-ordinator of Bachpan Bachao Andolan. She has also deposed that in order to lodge complaint the Child Welfare Committee orally directed her and not issued any written direction to her.
16. Here the learned counsel for the accused No.1 and 2 argued that the complaint was lodged after lapse of 20 days from the date of alleged rescue of children by the Child Welfare Committee or by the Bachpan Bachao Andolan. Here on perusal of re-statement of the complainant-Ex.P19 and her signature is Ex.P19(a), she has stated that on 28-10-2014 the BOSCO Child Line taken custody of Cw.4 to Cw.6 and sent them to Balakiyara Bala Mandira and on 18-11-2014, the CWC examined Cw.4 to Cw.6 and came to know the fact that the accused No.1 15 Spl.C.C.No.291/2015 and 2 taken them for domestic work and made them to work for 12 hours every day without giving proper food, cloth and shelter and also the accused No.1 sexually abused them, as a result the CWC directed this witness to lodge complaint against accused No.1 and 2 on 22-11- 2014, accordingly she has lodged complaint as per Ex.P1. But, no such reasons stated for what purpose they caused delay of 20 days in lodging complaint. At this stage this Court feels to observe that, the complainant caused delay of 20 days in lodging complaint against the accused No.1 and 2 and no proper explanation given for delay in lodging complaint. Further, she has admitted that:
"ZÁ.¸Á.4 jAzÀ 6 gÀªg À À ºÉýPÉAiÀÄ ªÉÄÃgÉUÉ ªÀiÁvÀæ CªÀgÀÄ DgÉÆævÀgÀ ªÀÄ£ÉAiÀÄ°è PÉ®¸À ªÀiÁqÀÄwÛzÝÀgÀÄ JAzÀÄ ºÉýzÉÝÃ£É JAzÀgÉ ¸Àj. ¨Á®QAiÀÄgÀÄ DgÉÆævÀgÀ ªÀÄ£ÉAiÀÄ°è PÉ®¸À ªÀiÁqÀÄwÛzÀÝ §UÉÎ £À£ÀUÉ RÄzÁÝV UÉÆwÛ®è JAzÀgÉ ¸Àj. "
The above said evidence clinches the issue unequivocally points out that Cw.4 to Cw.6 stated before CWC only they are working in the house of accused No.1 and 2 and not more than that. This witness also showed 16 Spl.C.C.No.291/2015 her ignorance about alleged activity of accused No.1 and 2 with Cw.4 to Cw.6 personally. Further she has admitted that Cw.4 to Cw.6 given statements when they were in the custody of the Government. If this piece of evidence taken into consideration, at the time of giving statement Cw.4 to Cw.6 were not free from fear and there is a doubt whether they have stated on the say of any person or any organization or they stated voluntarily. Non-production of supporting evidence of Cw.4 to Cw.6, it is absolutely fatal to the case of the prosecution against the accused No.1 and 2. She has also admitted that Bachpan Bachao Andolan not lodged any complaint before railway police immediately after rescuing of the children. According to her, may be the BOSCO organization lodged the complaint, but no such supporting document placed by the prosecution to show that BOSCO originations lodged complaint immediately after rescuing Cw.4 to Cw.6 at railway police.
17. With regard to spot mahazar, she has also 17 Spl.C.C.No.291/2015 admitted that:
"ªÀĺÀdgï£À ¸ÀªÀÄAiÀÄzÀ°è DgÉÆævÀgÀ CPÀÌ¥ÀPÀÌzÀ ªÀÄ£ÉAiÀĪÀgÀ£ÀÄß ¨Á®QAiÀÄgÀÄ DgÉÆævÀgÀ ªÀÄ£ÉAiÀÄ°è PÉ®¸À ªÀiÁqÀÄwÛzÀÝgÉà JAzÀÄ £Á£ÀÄ «ZÁj¹gÀĪÀÅ¢®è. DgÉÆæ ªÀĺÀªÀÄäzï ¸Á¢Pï ¨Á®QAiÀÄjUÉ ¯ÉÊAVPÀ QgÀÄPÀļÀ ¤ÃrzÀ §UÉÎ £À£ÀUÉ RÄzÁÝV UÉÆwÛ®è JAzÀgÉ ¸Àj, ªÀÄPÀ̼À ºÉýPÉAiÀÄAvÉ ºÉýzÉÝãÉ."
Further she has admitted that:
"¥ÀAZÀ£ÁªÉÄAiÀÄ PÁ®zÀ°è ¨Á®QAiÀÄgÀÄ DgÉÆævÀgÀ ªÀÄ£ÉAiÀÄ°è PÉ®¸ÀzÀ°èzÝÀgÃÉ JAzÀÄ CPÀÌ¥ÀPÀÌzÀ ªÀÄ£ÉAiÀĪÀgÀ°è «ZÁj¹ w½zÀÄPÉƼÀî°PÉÌ £À£ÀUÉ vÉÆAzÀgÉ EgÀ°®è JAzÀgÉ ¸Àj. "
The above said evidence points out that even at the time conducting mahazar at the house of accused No.1 and 2, this witness not enquired about the work of Cw.4 to Cw.6 in the house of accused No.1 and 2 and their treatment with Cw.4 to Cw.6 from neighbouring houses. When there is a drastic stand taken by the prosecution, it is its bounden duty to produce the evidence of neighbouring witnesses to believe that the accused No.1 and 2 harassed the victim girls both physically and sexually. Non- production of material evidence, it is absolutely fatal to the case of the prosecution.
18 Spl.C.C.No.291/2015
18. By going through the evidence of Pw.2-Santhosh K. one of the Panchas to Ex.P2, he has deposed that on 24- 11-2014 the police summoned him to participate in the process of conducting mahazar, stating that the accused No.1 and 2 ill-treated Cw.4 to Cw.6, both physically and sexually by engaging them in household work of their houses and conducted mahazar from 04.30 p.m., to 05.30 p.m., and he has signed as Ex.P2(c) and Ex.P2(d).
19. The accused No.1 and 2 cross-examined this witness by eliciting some commission and omission and denied alleged process of conducting mahazar as per Ex.P2 and participation of this witness. He has also admitted that:
"¥ÉÇðøÀgÀÄ £À£ÀUÉ oÁuÉAiÀÄ°è nà PÉÆr¹zÁÝgÉ JAzÀgÉ ¸Àj. C°è «ÄÃnAUï ¸ÀºÀ DVzÉ JAzÀgÉ ¸Àj. ¥ÉÇðøÀgÀ ªÀiÁvÀÄ PÉý, ªÀÄ£ÉAiÀÄ°è ªÀÄPÀ̼À£ÀÄß «ZÁgÀuÉ ªÀiÁrzÀ £ÀAvÀgÀ £Á£ÀÄ ¸À» ªÀiÁrzÉÝãÉ. ªÀÄPÀ̼À §½ £Á£ÀÄ ªÀiÁvÀ£ÁrgÀĪÀÅ¢®è. PÉù£À «ZÁgÀ £À£ÀUÉ UÉÆwÛ®è."
Further he has also admitted that:
"£ÁªÀÅ ºÉÆÃVzÀÝ ªÀÄ£ÉAiÀÄ°è AiÀiÁgÀÄ ªÁ¸À«zÀÝgÄÀ JAzÀÄ 19 Spl.C.C.No.291/2015 UÉÆwÛ®è, £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ EgÀĪÀ DgÉÆævÀgÀ£ÀÄß £Á£ÀÄ £ÉÆÃqÀÄwÛzÉÝãÉ, CªÀgÀ£ÄÀ ß £Á£ÀÄ F »AzÉ £ÉÆÃrgÀĪÀÅ¢®è."
If the above said evidence taken into consideration, there is a doubt about participation of this witness in the alleged process of conducting mahazar as per Ex.P2. Unless and until the prosecution produces corroborate, cogent and oral and documentary evidence, it is not safe to accept the evidence of Pw.2. Even if really Pw.2 had participated in the process of conducting mahazar as per Ex.P2, definitely he could have identified the accused No.1 and 2 before the Court, but his evidence is that he has not seen the accused No.1 and 2 any where except before the Court when he was giving evidence. Viewing from materials evidence of this witness, this Court feels to observe that to some extent admission of signature as per Ex.P2(c) and Ex.P2(d) his evidence has to be taken into consideration, but his evidence is not definite whether he has signed the said signature at the spot or in the police station, as he has deposed in his cross-examination stated supra. 20 Spl.C.C.No.291/2015
20. By going through the evidence of Pw.3-Susan Thomas, she has deposed that on 24-11-2014 in Ashok Nagar Police Station, she has counseled Cw.4 to Cw.6 and Cw.4 to Cw.6 stated before her that the accused No.2 and his wife-Ameena Begum brought them from their village and took domestic work in their house in respect of washing cloths, floor cleaning, vessel washing and bathroom cleaning and also Cw.4 to Cw.6 wanted to do same work at the first floor, where accused No.1 was residing and accused No.1 sexually abused them when no person was in the house.
21. The accused No.1 and 2 cross-examined this witness by eliciting some commission and omission. Except denial suggestion, nothing has been elicited favourable to the defense of accused No.1 and 2. Here unless and until the supporting evidence of Cw.4 to Cw.6 is produced, it is not safe to accept the evidence of this witness to believe the alleged offences against the accused No.1 and 2. 21 Spl.C.C.No.291/2015
22. By going through the evidence of Pw.4- Savithrama, she has deposed that on 01-12-2014, Ashok Nagar Police Station W.P.C., brought Cw.4 to Cw.6 for counseling, she has enquired said children and came to know that accused No.1 and 2 had taken domestic work from them in their house from six months and they used to do the work of cleaning house, washing utensils and they were not given any sufficient food to them and they have to work up to night. The accused No.1 sexually abused them. Further they have stated that if Cw.4 to Cw.6 disclose the said fact before anybody, he is going to kill them, as a result they have left the house of accused No.1 and 2 and standing in railway station. At that time accused No.1 came to railway station and called upon them, but the BOSCO Child Line taken Cw.4 to Cw.6 with them from railway station and thereafter they have produced them before CWC and after that they were subjected to medical examination. Through this witness the prosecution got marked Ex.P3 to Ex.P5 and her signature is Ex.P3(a) to Ex.P5(a). 22 Spl.C.C.No.291/2015
23. The accused No.1 and 2 cross-examined this witness by eliciting some commission and omission and also elicited that:
"£Á£ÀÄ ¨ËjAUï D¸ÀàvÉæAiÀÄ ªÀÄ»¼Á «±ÉõÀ aQvÁì WÀlPÀzÀ°è D¥ÀÛ ¸ÀªÀiÁ¯ÉÆÃZÀQAiÀiÁV PÉ®¸À ªÀiÁqÀÄwÛzÉÝãÉ. £À£ÀUÉ ªÀÄPÀ̼À ºÉýPÉ ªÀiÁrPÉƼÀî®Ä C¢üPÁgÀ EzÉ. £À£ÀUÉ C¢üPÁgÀ EzÉ JAzÀÄ vÉÆÃj¸À®Ä DzÉñÀzÀ £ÀPÀ®£ÀÄß ºÁdgÀÄ¥Àr¸ÀÄvÉÛãÉ. "
Further the accused No.1 and 2 denied the allegation made against them in their chief examination by denial suggestions. The learned counsel for the accused argued that this witness is not competent to record the statement of victim girls as per Ex.P3 to Ex.P5, since under section 26 of POCSO Act, the Police Officer having power to record the children statement, as such the statement as per Ex.P3 to Ex.P5 has no value. Here this Court feels to observe that no doubt it is true that section 24 of POCSO Act is very clear that the statement has to be recorded as per the provisions and this witness has not come in the said list. But at the same time it is just and proper to consider whether the corroborative, cogent and oral and 23 Spl.C.C.No.291/2015 documentary evidence is made available by the prosecution through Cw.4 to Cw.6 has to be looked into.
24. By going through the evidence of Pw.5-Roopa H. Badiger, she has deposed that on 22-11-2014 she has taken Cw.4 to Cw.6 to Bowring Hospital for medical examination of their age and the said direction was issued by P.S.I-Shobha. The medical examination taken place in Bowring Hospital and after examination she brought Cw.4 to Cw.6 and produced them before P.S.I-Shobha.
25. The accused No.1 and 2 cross-examined this witness by eliciting some commission and omission and except denial suggestion nothing has been elicited favourable to the defense taken by the accused No.1 and 2. At this stage this Court feels to observe that the evidence of this witness is a formal one which is taken place during the course of investigation.
26. By going through the evidence of Pw.6- Gangamma, she has deposed that Cw.4 to Cw.6 were 24 Spl.C.C.No.291/2015 produced before her on 02-02-2015. On enquiry she came to know that they were brought to work in the house of the accused No.1 and 2 and she also came to know that the accused No.1 sexually abused them when none of the persons were available in the house, as a result they left the house of accused No.1 and 2 and in the railway station they were rescued and produced to Balakiyara Bala Mandira. At this stage it is not in dispute that Cw.4 to Cw.6 were in Balakiyara Bala Mandir, but the dispute is that the accused No.1 and 2 have committed any criminal act with Cw.4 to Cw.6. At this stage the evidence of this witness is also a formal one, unless and until corroborative, cogent and oral and documentary evidence produced by the prosecution.
27. By going through the evidence of Pw.7-Shantha Malagi-P.O., of Balakiyara Bala Mandira-Bengaluru, deposed that on 28-10-2014 BOCSO Child Line Institution brought three minor girls who are-Cw.4 to Cw.6 and joined 25 Spl.C.C.No.291/2015 to said Mandira. On the next day counseling was taken place and in that counseling it revealed that the Cw.4 to Cw.6 are from Bellary District and their parents left them in Bengaluru for house work, in that house the owner demanded them to read Khuran and talk in Urdu language. The accused No.1 sexually abused them, as a result they left the house of accused No.1 and 2 and went to railway station to go to their places, at that time the BOSCO Child Line rescued them and brought to Balakiyara Bala Mandira. Thereafter as per the orders of CWC the rescued Cw.4 to Cw.6 transferred to Balakiyara Bala Mandir-Bellary on 01-02-2015. Ex.P7 to Ex.P10 are the information regarding Cw.4 to Cw.6.
28. The accused persons tested the veracity of this witness by eliciting some commission and omission and also elicited that:
"D ªÀÄPÀ̼À ºÉ¸ÀgÀÄUÀ¼À£ÀÄß §zÀ®ÁªÀuÉ ªÀiÁrzÀ §UÉÎ £À£ÀUÉ ¸ÀéAvÀ ªÀiÁ»w E®è. £ÁªÀÅ DgÉÆævÀgÀ ªÀÄ£ÉUÉ ºÉÆÃV ¸ÀzÀj ªÀiÁ»w §UÉÎ «ZÁgÀuÉ ªÀiÁr®è. ªÀÄPÀ̼À ºÉýPÉ zÁR°¸ÀĪÁUÀ ¨ÉÃgÉ AiÀiÁgÀÆ EgÀ°®è. D ªÀÄPÀ̼À ºÉýPÉUÀ¼À£ÄÀ ß CªÀgÀ ¥ÉÇõÀPÀgÀ 26 Spl.C.C.No.291/2015 ªÀÄÄAzÉ «ZÁgÀuÉ ªÀiÁr®è."
The above said evidence crystallizes that this witness has not made further enquiry about Cw.4 to Cw.6 with the accused persons and also the parents of Cw.4 to Cw.6. At this stage this Court feels to observe that this witness also not deposed in respect of reasons for causing delay in lodging complaint, but the evidence is very clear that on 28-10-2014 this witness had received Cw.4 to Cw.6 to her custody and on the very next day counseling was made, at that time the victim girl revealed about their work with the accused No.1 and 2, but the authority has not lodged any complaint against the accused No.1 and 2 either on 29-10- 2014 or on 28-10-2014 and it is filed only on 18-11-2014, that too after lapse of 20 days without sufficient reasons. At this stage this Court opines that this witness is a formal one.
29. By going through the evidence of Pw.9- Mookambika-C.D.P.O., she has deposed that on 28-10- 27 Spl.C.C.No.291/2015 2014, the BOSCO Child Line brought Cw.4 to Cw.6 and the CWC sent Cw.4 to Cw.6 to the custody of this witness. She has taken the first information from them and came to know that Cw.4 to Cw.6 are from Bellary and they came to do household work at the house of accused No.2 and the parents of Cw.4 to Cw.6 left them to do the said work in the said house. She has also deposed that she got information about the accused No.1 sexually abused to Cw.4 to Cw.6, as a result they left the house and came to railway station to go to Bellary. The Cw.4 to Cw.6 were stayed in Balakiyara Bala Mandira-Bengaluru from 28-10- 2014 to 02-01-2015 and then sent to Balakiyara Bala Mandira-Bellary.
3O. The accused persons tested the veracity of evidence of this witness by eliciting some commission and omission and except denial suggestion, nothing has been elicited favourable to the defense taken by accused persons. He has also elicited that:
28 Spl.C.C.No.291/2015
"£Á£ÀÄ £À£Àß ºÉýPÉAiÀÄ°è D ªÀÄÆgÀÄ d£À ºÉtÄÚªÀÄPÀ̼À£ÀÄß AiÀiÁgÀÄ PÀgÉ vÀAzÀÄ ºÁdgÀÄ¥Àr¹zÀgÀÄ JA§ÄzÀgÀ «ªÀgÀuÉ ºÁUÀÆ D ªÀÄPÀ̼À£ÀÄß £ÀªÀÄä°èUÉ zÁR°¸À®Ä PÁgÀt ºÁUÀÆ D ªÀÄPÀ̼À §UÉÎ «ªÀgÀuÉ ºÉýgÀĪÀÅ¢®è JAzÀgÉ ¸Àj."
The above said evidence crystallizes that she has not taken any action immediately after the rescued children brought to Balakiyara Bala Mandira-Bengaluru and after getting first information from the children at the same time the complaint was lodged on 18-11-2014, that too after lapse of 20 days. At this stage this Court feels to observe that the evidence of this witness is a formal one.
31. By going through the evidence of Pw.11-Dr.Arun Dasan, he has deposed that on 26-11-2014 the police brought Cw.4 to Cw.6 for examination of their age, as a result he has conducted medical examination through radiological test and came to know that the Munni @ Thaiba and Renuka @ Amreen are aged more than 16 years and below 18 years and Munni @ Shaheen was aged more than 14 years and below 16years. He has issued Ex.P12 to Ex.P14-certificates and his signature is Ex.P12(b) to 29 Spl.C.C.No.291/2015 Ex.P14(b).
32. The accused persons tested the veracity of evidence of this witness by eliciting some commission and omission and also elicited that he has not written about the request made by the police in his report. It is their defense that the victim girls are more than 18 years, but no such supporting documentary evidence placed by the accused No.1 and 2. At this stage this Court feels to observe that this witness is also a formal one.
33. By going through the evidence of Pw.12, who is Cw.4-the victim girl and she has deposed that she doesn't know the accused persons. About 3 years back she came to Bengaluru along with Cw.5 and Cw.6 in rail. When they were in railway station, the police arrested them and sent to remand home, except that she doesn't know anything about the alleged incident and she doesn't know the accused persons and she has not given statement before police. She has not put her LTM on any document. Her 30 Spl.C.C.No.291/2015 mother is Fatima. She doesn't know to read and write Hindi or Kannada. She has not studied in school. Her father's name is Kuddus. Their parents are having 7 children. The Social Workers have not enquired her either at Bengaluru or at Bellary and she has not given any statement before them. The LTMs found in Ex.P2 and Ex.P5 are not her LTMs.
34. The victim girl-Cw.4 turned hostile to the prosecution case. Here she is a material witness, but she has not supported the case of the prosecution and turned hostile to the case of the prosecution. The prosecution cross-examined this witness by treating her as hostile and suggested each and every words of Ex.P20, for that she has clearly denied the same and deposed that no such statement given by her before the police. Further she has not given statement as per Ex.P2 and Ex.P5.
35. By going through the evidence of Pw.13, who is Cw.5-the victim girl and she has deposed that Cw.4 is her 31 Spl.C.C.No.291/2015 friend, Cw.6 is younger her sister. She doesn't know the accused persons and at no point of time she has seen the accused persons. She knows Cw.7 and Cw.8. At no point of time Cw.10 to Cw.18 enquired her and she has not given statement before Cw.19 at any point of time. She has not worked at the house of accused No.1 and 2. She doesn't know the wife of accused No.2. The accused persons have not ill-treated her and she has not given any statement before police stating that the accused No.1 and 2 ill-treated her. Even she has not given any statement before social worker. She has not studied. The LTM found in Ex.P2 is not her LTM, but the LTM found in Ex.P4(b) and Ex.P4(d) are her LTMs. But she doesn't know what had been written in Ex.P4. She has not given any statement before police. She doesn't know anything about the case. At no point of time the police took her for medical examination. The prosecution treated this witness as hostile to the prosecution case and suggested each and every word of Ex.P21, for that she has denied the same. She has also 32 Spl.C.C.No.291/2015 denied the alleged LTM in Ex.P2 and Ex.P4 is her LTM. Through this material witness, the prosecution fails to establish the alleged offences against the accused No.1 and 2 beyond all reasonable doubt.
36. By going through the evidence of Pw.14 who is Cw.6-the victim girl, she has deposed that Cw.4 is her friend, Cw.5 is her elder sister. She has not seen the accused persons and she doesn't know them. She knows Cw.7 and Cw.8. At no point of time Cw.10 to Cw.18 enquired her. She has not given any statement before Cw.19. At no point of time she worked at the house of accused No.1 and 2, they have not ill-treated her. She has not given any statement before police and social workers in respect of accused No.1 and 2 ill-treated her and sexually abused her. She has not studied. The LTM found in Ex.P2 is not her LTM. The LTM founding Ex.P3 is also not her LTM. She doesn't know anything about the case. The police not taken her to the hospital for medical 33 Spl.C.C.No.291/2015 examination. She has not given any statement before police. About three years back she came along with Cw.4 and Cw.5 for work. When they were in railway station, the police taken them to their custody and sent to Mahila Hostel, after 3-4 days they were sent to Bellary. Except that they have not worked in the house of accused No.1 and 2 as maid servant and the accused persons have not ill-treated them and she has not given any statement against accused No.1 and 2 before Cw.12 and Cw.19. The prosecution treated this witness as hostile to the prosecution case and suggested each and every word of Ex.P22, for that she has denied the same and her definite answer is that she has not given any statement before police as per Ex.P22. Further she has denied the LTM found in Ex.P2 and Ex.P3 as her LTM at any point of time she has put her LTM on the said document and she doesn't know anything about the facts and circumstances of the above said document. This witness also turned hostile to the prosecution case and prosecution fails to corroborate 34 Spl.C.C.No.291/2015 the alleged offences against accused No.1 and 2 through the evidence of this witness.
37. By going through the evidence of Pw.15-Fatima, the mother of Cw.4-the victim girl, she has deposed that she doesn't know Ameena Begum and accused persons. She has not kept her daughter as maid servants in the house of Ameena Begum. She has not given any statement before police that the accused No.1 and 2 tortured her daughter both physically and mentally and accused No.1 sexually abused her daughter. The prosecution treated this witness as hostile to the prosecution case and suggested each and every word of Ex.P23, for that she has denied the same. Through this witness the prosecution fails to establish the alleged offences against accused No.1 and 2 beyond all reasonable doubt.
38. By going through the evidence of Pw.16-Lakshmi, the mother of Cw.5 and Cw.6, she has deposed that she doesn't know Ameena Begum and her husband. She 35 Spl.C.C.No.291/2015 doesn't know accused No.1 and 2. At no point of time she has left her daughters-Cw.5 and Cw.6 for work in the house of accused No.1 and 2 and at no point of time the accused No.1 and 2 ill-treated Cw.5 and Cw.6. She has not given any statement before police against accused No.1 and 2 stating that they have given both physical and mental torture to her daughters when they were working in their houses and the accused No.1 sexually abused them. The prosecution treated this witness as hostile to the prosecution case and suggested each and every word of Ex.P24, but she has clearly denied the same and stated that she has not given any statement before police as per Ex.P24. Through this witness also the prosecution fails to establish the alleged offences against accused No.1 and 2.
39. Here it is relevant to note that Pw12 to Pw.16 are material witnesses who are the victim girls and their respective mothers. The prosecution case is that the accused No.1 and 2 caused ill-treatment to the victim girls, 36 Spl.C.C.No.291/2015 and accused No.1 sexually abused the victim girls. But, Pw.12 to Pw.16 have not deposed anything about the alleged ill-treatment and sexual abuse caused by accused No.1 and 2. Even the prosecution treated them as hostile to the prosecution case and suggested each and every words of Ex.P20 to Ex.P24, for that they have clearly denied the same. Unless and until the prosecution produces supporting corroborative and cogent oral evidence of these witnesses, whatever evidence produced by the prosecution through official witnesses who are NGOs, doctors and police personnel, it is not safe to accept their evidence against the accused No.1 and 2 beyond all reasonable doubt.
40. By going through the evidence of Pw.17- Dr.Prathima, she has deposed that she has given medical certificates as per Ex.P15 to Ex.P17, after examining the victim girls-Cw.4 to Cw.6 and she has not found any injuries on the body of Cw.4 to Cw.6 at the time of medical 37 Spl.C.C.No.291/2015 examination and her signature is Ex.P15(b) to Ex.P17(b). This witness evidence remains unassailed and Ex.P15 to Ex.P17 remains unchallenged. When there is a drastic stand taken by the prosecution, it is its bounden duty to produce corroborative, cogent material witness evidence to believe the evidence of official witnesses, but no such evidence produced by the prosecution to prove the alleged offences against accused No.1 and 2. Through the evidence of Pw.17 this Court feels to observe that though the accused No.1 and 2 not cross-examined them, but the said evidence is in no way helpful to the case of the prosecution to believe the alleged offences against accused No.1 and 2 beyond all reasonable doubt.
41. By going through the evidence of Pw.8-Shobha G-Police Inspector, she has deposed that she has received complaint as per Ex.P1 from Cw.1-Vani Katli, State Co- ordinator, Bachpan Bachao Andolan and made shara and signed as per Ex.P1(b). On the basis of said complaint, she 38 Spl.C.C.No.291/2015 has prepared Ex.P11-F.I.R., and her signature is Ex.P11(a). She has also appointed police personnel to produce the accused persons. On 23-11-2014 the police personnel produce the accused before her. She has recorded voluntary statement of the accused No.1 and 2. Thereafter she has produced the accused No.1 and 2 before Court. On 24-11-2014 she has recorded re-statement of complainant and also the counseling was made before Susan Thomas of Cw.4 to Cw.6. Thereafter she went to spot, conducted mahazar from 04.30 p.m., to 05.30 p.m. She has also produced Cw.4 to Cw.6 before the Court to record 164 Cr.P.C, statement. On 25-11-2014 she had given entire report to CWC. On 26-11-2014 she has subjected Cw.4 to Cw.6 for medical examination in Bowring Hospital. On 27- 11-2014 she has produced Cw.4 to Cw.6 before Judge for recording their 164 Cr.P.C, statement.
42. She has further deposed that on 01-12-2014 she has produced Cw.4 to Cw.6 for counseling before Child 39 Spl.C.C.No.291/2015 Special Treatment Unit and thereafter on the same day she has sent the victim girls to Balakiyara Bala Mandira- Bellary. On 02-02-2015 she has recorded the statements of parents of the victim girls and also statement of Ameena Begum-the wife of accused No.1. She has received medical certificates as per Ex.P12 to Ex.P14 from Bowring Hospital on 06-02-2015 and her signature is Ex.P12(a) to Ex.P14(a). On 12-03-2015 the Bowring Hospital doctors examined Cw.4 to Cw.6 and issued medical certificates as per Ex.P15 to Ex.P17 and her signature is Ex.P15(a) to Ex.P17(a). The case sheet is Ex.P18 and her signature is Ex.P18(a), the re- statement of complainant is Ex.P19 and her signature is Ex.P19(b). Thereafter she has handed over the record to the Police Inspector-Rangappa for further investigation.
43. The accused tested the veracity of this witness by eliciting some commission and omission. She has shown her ignorance stating that:
40 Spl.C.C.No.291/2015
"D ªÀÄPÀ̼ÀÄ gÉʯÉéà ¤¯ÁÝtzÀ°è ¹PÀÌ ¢£ÁAPÀ UÉÆwÛ®è. D ªÀÄPÀ̼ÀÄ ¹PÀÌ ¢£ÁAPÀ¢AzÀ zÀÆgÀÄ zÁR¯ÁUÀĪÀªÀgÉUÉ ªÀÄzÀå K£Á¬ÄvÀÄ JAzÀÄ UÉÆwÛ®è."
Further she has admitted that:
"D ªÀÄPÀ̼À ºÉýPÉ ¥ÀæPÁgÀ CzÀÄ ¤dªÉÇà E®èªÉÇà JA§ §UÉÎ £Á£ÀÄ D ªÀÄ£ÉAiÀÄ CPÀÌ¥ÀPÀÌzÀªg À À §½ «ZÁj¹®è. £Á£ÀÄ D ªÀÄPÀ̼ÀÄ ªÀÄvÀÄÛ J£ïfM zÀªÀgÀ ºÉýPÉ ¤dªÉÇà ¸ÀļÉÄÁî JA§ §UÉÎ D ªÀÄ£ÉAiÀÄ CPÀÌ¥ÀPÀÌ ºÉÆÃV ¥Àj²Ã°¹®è."
Again she has deposed that:
"D ªÀÄPÀ̼À ºÉýPÉAiÀÄ£ÀÄß CªÀgÀ ¥ÉÇõÀPg À ÀÄ CxÀªÁ ¨ÉÃgÉAiÀĪÀgÀ ªÀÄÄAzÉ vÉUÉzÀÄPÉƼÀî®Ä £À£ÀUÉ vÉÆAzÀgÉ EgÀ°®è."
She shown her ignorance about what had happened since from 28-10-2014 to 22-11-2014 in respect of children and she doesn't know what had happened to the children during that period. She does not know whether they were subjected to medical examination on 28-10-2014. She has also deposed that:
"D ªÀÄPÀ̼À ªÉÄʪÉÄÃ¯É AiÀiÁªÀÅzÉà UÁAiÀÄUÀ¼ÁV®è JAzÀÄ ªÉÊzÀågÀÄ ªÀgÀ¢ ¤ÃrzÁÝgÉ JAzÀgÉ ¤d. D ªÀgÀ¢AiÀÄ°è ªÀÄPÀ̼À ªÉÄÃ¯É ®ÉÊAVPÀ zËdð£ÀåªÁVzÉ JAzÀÄ £ÀªÀÄÆ¢¹®è JAzÀgÉ ¸Àj. "
Further she has admitted that:
"D ªÀÄPÀ̼À ºÉ¸ÀgÀ£ÀÄß DgÉÆævÀgÀÄ §zÀ¯ÁªÀuÉ ªÀiÁrzÀ 41 Spl.C.C.No.291/2015 §UÉÎ CPÀÌ¥ÀPÀÌzÀªÀgÀ£ÀÄß £Á£ÀÄ «ZÁgÀ ªÀiÁqÀ°®è. £ÉÆAzÀ ¨Á®QAiÀÄgÀÄ CxÀªÁ CªÀgÀ PÀÄlÄA§zÀªÀjAzÀ £ÉÆAzÀ¨Á®QAiÀÄgÀ ºÀÄnÖzÀ ºÉ¸ÀgÀÄ ªÀÄvÀÄÛ CªÀgÀ ªÀÄ£ÉAiÀĪÀgÀÄ PÀgA É iÀÄĪÀ ºÉ¸Àj£À §UÉÎ zÁR¯É ¥ÀqÉzÀÄPÉÆAr®è."
The above said evidence clinches the issue unequivocally points out that being the Investigation Officer, she has not made any efforts to find out whether the alleged incident had happened or not by enquiring the persons who are neighbours of the house of accused No.1 and 2 and the persons who belonged to the victim girls. When there is a drastic stand taken by the prosecution, it is the bounden duty of the prosecution to prove the alleged offences beyond all reasonable doubt against the accused No.1 and 2. But the very admission in cross-examination of Pw.8, who is Investigation officer, it is absolutely fatal to the case of the prosecution to prove the alleged offences against the accused No.1 and 2 beyond all reasonable doubt.
44. By going through the evidence of Pw.12- Rangappa, Police Inspector, he has deposed that after 42 Spl.C.C.No.291/2015 receiving record from Pw.8 who is Cw.19, he verified the said record and filed charge sheet against accused No.1 and 2 on 19-06-2015. The accused persons tested the veracity of evidence of this witness and nothing has been elicited favourable to the defense taken by the accused No.1 and 2. At this stage this Court feels to observe that the evidence of Pw.8 and Pw.10 are formal one.
45. In this case the contention of prosecution that after receiving complaint from Cw.1, the investigation was taken place and as per the information of the complainant in the house of accused No.1 and 2, Cw.4 to Cw.6 were admitted as maid servants by doing domestic work and while doing said work they have ill-treated them as mentioned in the complaint and accused No.1 sexually abused Cw.4 to Cw.6. But, at the same time the prosecution not explained about the delay of 20 days in lodging complaint and filing F.I.R. Further in order to establish the alleged offences against the accused No.1 and 43 Spl.C.C.No.291/2015 2, though the prosecution produces the victim girls and their mothers' evidence, but they turned hostile to the prosecution case and not supported. The other prosecution witnesses are all official witnesses and NGOs of Bachpan Bachao Andolan and police officials. When such being the case, unless and until the prosecution produces corroborative and cogent oral and documentary evidence of material witnesses-Cw.4 to Cw.6 and their parents, it is not safe to accept the alleged offences against the accused No.1 and 2. Further this Court feels to observe that the oral and documentary evidence placed on record by the prosecution is not sufficient to prove the alleged offences against accused No.1 and 2 beyond all reasonable doubt. The defense of the accused No.1 and 2 and the facts and circumstances of the case including materials on record discussed above probablizes the defense of the accused No.1 and 2 rather than the case of the prosecution.
46. In view of aforesaid reasons, I hold that the 44 Spl.C.C.No.291/2015 evidence of Pw.1 to Pw.17 and documentary evidence as per Ex.P1 to Ex.P24, placed on record insufficient to prove that accused No.1 and 2 are residing at Amina Manzil, 21, Palm Grove Road, Victoria Layout, Austin Town, Bengaluru. Both the accused trafficked Cw.4 to Cw.6-the victim girls through middleman from Bellary District and forcefully kept them for domestic help in their home and they were made to work for more than 12 hours and were forced to convert their religion from Hindu to Muslim, study Arabic and were abused physically for small mistake and not provided proper food. The accused No.1 being son-in- law of accused No.2, tried to touch them when nobody is around and opens his inner garments in front of the children and tried to use them sexually by hugging and kissing them and as a result accused No.1 and 2 committed offences punishable under Section 370(5) read with Section 34 of I.P.C and Section 23 Juvenile Justice (Care and Protection of Children) Act, 2015 and section 354-A of IPC read with section 9(n) and (p) read with 45 Spl.C.C.No.291/2015 section 10 of POCSO Act, 2012 against accused No.1 only beyond all reasonable doubt beyond reasonable doubt. Consequently I hold Point No.1 to 3 in the "Negative".
47. Point No.4:- For the above said reasons and discussions on Point No.1 to 3, I hold that the accused No.1 and 2 are entitled for an order of acquittal. Hence, in the final result, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C, the accused No.1 and 2 are hereby acquitted for the offences punishable under Section 370(5) read with Section 34 of I.P.C., and section 23 of J.J. Act and accused No.1 is hereby acquitted for the offence punishable under section 354-A read with Section 9(n) and 9(p) read with section 10 of POCSO Act, and their bail bonds and surety bonds stand cancelled.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open court on this the 25th Day of September 2017.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE 46 Spl.C.C.No.291/2015 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION Pw.1 Vani Kantli Cw.1 17-06-2016 Pw.2 Santhosh K. Cw.2 17-06-2016 Pw.3 Susan Thomas Cw.12 11-08-2016 Pw.4 Savithramma Cw.13 15-09-2016 Pw.5 Roopa H. Badigera Cw.11 23-11-2016 Pw.6 Gangamma Cw.16 24-11-2016 Pw.7 Shantha Malagi Cw.15 23-03-2017 Pw.8 Shobha G. Cw.19 23-03-2017 Pw.9 Mookambika Cw.14 11-04-2017 Pw.10 T.Rangappa Cw.15 11-04-2017 Pw.11 Dr.Arun Dasan Cw.17 25-04-2017 Pw.12 Victim Girl Cw.4 25-07-2017 Pw.13 Victim Girl Cw.5 25-07-2017 Pw.14 Victim Girl Cw.6 25-07-2017 Pw.15 Fatima Cw.7 25-07-2017 Pw.16 Lakshmi Cw.9 25-07-2017 Pw.17 Dr. Prathima Cw.18 09-08-2017 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Complaint Pw.1 17-06-2016 Ex.P 1a Signature of Pw.1 Pw.1 17-06-2016 Ex.P 1b Signature of Pw.8 Pw.8 23-03-2017 47 Spl.C.C.No.291/2015 Ex.P 2 Spot Mahazar Pw.1 17-06-2016 Ex.P 2a Signature of Pw.1 Pw.1 17-06-2016 Ex.P 2b Signature of Pw.1 Pw.1 17-06-2016 Ex.P 2c Signature of Pw.2 Pw.2 17-06-2016 Ex.P 2d Signature of Pw.2 Pw.2 17-06-2016 Ex.P 3 Statement of victim Pw.4 15-09-2016 girl-Pw.14 Ex.P 3a Signature of Pw.4 Pw.4 15-09-2016 Ex.P 4 Statement of victim Pw.4 15-09-2016 girl-Pw.13 Ex.P 4a Signature of Pw.4 Pw.4 15-09-2016 Ex.P 5 Statement of victim Pw.4 15-09-2016 girl-Pw.12 Ex.P 5a Signature of Pw.4 Pw.4 15-09-2016 Ex.P 6 Letter Pw.4 15-09-2016 Ex.P 6a Signature of Pw.4 Pw.4 15-09-2016 Ex.P 7 Report Pw.4 15-09-2016 Ex.P 8-10 Details of victim girls Pw.7 23-03-2017 Ex.P 11 F.I.R. Pw.8 23-03-2017 Ex.P 11a Signature of Pw.8 Pw.8 23-03-2017 Ex.P 12-14 Age certificates of Pw.8 23-03-2017 victim girls Ex.P 12a to Signatures of Pw.8 Pw.8 23-03-2017 14a Ex.P 12b Signatures of Pw.11 Pw.11 25-04-2017 to 14b 48 Spl.C.C.No.291/2015 Ex.P 15 to Medical examination Pw.8 23-03-2017 17 certificates of the victims Ex.P 15a to Signatures of Pw.8 Pw.8 23-03-2017 17a Ex.P 15b Signatures of Pw.17 Pw.17 09-08-2017 to 17b Ex.P 18 MLC Register extract Pw.8 23-03-2017 of victim girls Ex.P 18a Signature of Pw.8 Pw.8 23-03-2017 Ex.P 19 Re-statement of the Pw.8 23-03-2017 complainant Ex.P 19a Signature of Pw.1 Pw.8 23-03-2017 Ex.P 19b Signature of Pw.8 Pw.8 23-03-2017 Ex.P 20 Statement of victim Pw.12 25-07-2017 girl-Pw.12 Ex.P 21 Statement of victim Pw.13 25-07-2017 girl-Pw.13 Ex.P 22 Statement of victim Pw.14 25-07-2017 girl-Pw.14 Ex.P 23 Statement of Pw.15 Pw.15 25-07-2017 Ex.P 24 Statement of Pw.16 Pw.16 25-07-2017 LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION
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LIST OF WITNESSES EXAMINED, DOCUMENTS MARKED & MO.S MARKED ON BEHALF OF DEFENCE
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L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
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