Bangalore District Court
Unknown vs Afroze Pasha @ Arhan on 4 February, 2020
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS SPECIAL JUDGE,
BENGALURU
DATED THIS THE 4th DAY OF FEBRUARY, 2020
-: PRESENT :-
S.H.PUSHPANJALI DEVI, B.A. LL.B.,
LIII Addl. City Civil & Sessions Special Judge,
Bengaluru.
SPECIAL C.C.No. 300/2015
COMPLAINANT :
The State of Karnataka
By Commercial Street Police Station,
Bengaluru.
[Rep. by Public Prosecutor]
/ VERSUS /
ACCUSED:
Afroze Pasha @ Arhan,
S/o V. Mohammed,
Aged about 24 years,
R/at. No. 23, Chandan's House,
Ist Cross, Narayana Pillai Street,
Bharathi Nagara,
Bengaluru City.
[Rep. by Mr. MA - Advocate]
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Spl.C C.300/2015
TABULATION OF EVENTS
1. Date of Commission : 17/2/2015
Of Offence
2. Date of Report :
Of Offence 24/2/2015
3. Date of Arrest of : 6/3/2015
Accused
4. Date of Release on Bail
Accused : 31/8/2015
5 Period undergone in
Judicial Custody by : 5 months 25 days
Accused
6 Name of the Complainant : Minor Victim
7. Date of Commencement :
of recording evidence 11/09/2016
8. Date of Closing of :
11/07/2019
Evidence
9. Charges framed : Sections 383 R/W 384, 506 IPC
and 11(iv) R/W 12 of POCSO
Act, 2012.
10. Opinion of the Judge : As per final Order
(S.H.PUSHPANJALI DEVI)
LIII Addl.City Civil & Sessions Special Judge,
Bangalore.
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Spl.C C.300/2015
JUDGMENT
This Charge Sheet is filed by the Police Inspector of Commercial Street Police Station, Bengaluru City, against the Accused for the offences punishable under Sections 384, 506 of IPC and 11(4) R/W 12, 18 of POCSO Act, 2012.
2. The brief facts of the case of Prosecution are that the Accused in the month of December 2014, came into contact with the Minor Victim through Facebook, after they became friends both of them went to different places of K.F.C, Dominoes, Macdonadls and other Restaurants and take pair photographs in his mobile. Afterwards, the Accused taken advantage of the said photograph and threatened her that he will exhibit the same in the Social Network and kill her parents as well as attempt to use her in the Sexual Act. He was called her on 17-02-2015 at about 8.00 pm to the 4 Spl.C C.300/2015 Commercial Street and Extorted her golden jewelries and blackmailed her subsequently. He is also attempt to commit the offences of Sexual Harassment on the minor victim.
3. The CW1, the minor Victim, gave the Complaint to the Commercial Street Police Station on 24-02-2015 against the Accused and case registered in Crime. No. 54/2015, for the offence under Sections 384 IPC and 66(A) of Information of Technology Act. Subsequently, the police have arrested the Accused on 06-03-2015 and produced before the Court. He was given to Police Custody till 13-03-2015. The Accused was produced from Police Custody and he has been remanded to Judicial Custody. Afterwards, the Accused was represented through the Counsel and Trial Court has granted bail on 19-03-2015.
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Spl.C C.300/2015
4. The Investigating Officer has filed Charge Sheet on 10-06-2015 before this Court for the offence punishable under Sections 384, 506 of IPC and 11(iv) R/W 12, 18 of POCSO Act, 2012. This Court has taken Cognizance the said offences. Afterwards, heard the arguments of learned Public Prosecutor and learned Counsel for Accused before framing Charge. The primafacie materials found against the Accused to proceed with the Case, therefore, framed Charges under Sections 383, 384, 506 IPC and 11(iv) R/W 12 of POCSO Act, 2012., read over and explained to the Accused in the language known to him, he has not pleaded guilty.
5. The Prosecution has examined 6 witnesses, out of 18 witnesses, as Pws 1 to 6. The documents are marked as Ex.P1 to 9, Ex.P1(a), P2(a) (b), P3(a) (b), P7(a), P8(a), P9(a) and the materials are marked as MOs1 to 3. The witnesses Cws 5 to 12, 16 were remained absent, after issuance of bailable warrant 6 Spl.C C.300/2015 on several times. Therefore, the prayer of learned Public Prosecutor for reissue the same has been rejected and evidence of Prosecution taken as closed. The incriminating circumstances in the evidence has been read over to the Accused under Section 313of Cr.P.C. The Accused has denied the entire evidence of Prosecution and not chosen to lead any defense evidence.
6. Subsequently, the learned Public Prosecutor has filed the application under Section 311 of Cr.P.C. to summon the CWs2, 3, 5 to 12, which has been objected on behalf of the Accused. Therefore, after hearing the arguments of both on the said application, it was allowed on 03-09-2019 and giving one more opportunity to the Prosecution to examine the said witnesses.
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Spl.C C.300/2015
7. However, after the summons re-issued to all of the said witnesses, as they remained absent and Prosecution has failed to secure those witnesses, in spite of direction given by this Court to keep present all of them, due to failure of Prosecution to secure them, the evidence of CWs2, 3, 5 to 12 is closed by this Court.
8. Heard, the arguments of learned Public Prosecutor for the State and the learned Counsel for the Accused on merits.
9. The points for my consideration are :
1. Whether the Prosecution proves that the Accused in the month of December 2014 came into contact with the minor victim through Facebook and took her to different places and taken pair photograph with her, misused the said photograph and also threaten the same will be exhibited in the Social Network?8
Spl.C C.300/2015
2. Whether the Prosecution proves that on 17-02-2015 the Accused extorted money and golden jeweleries from the Victim after calling her to Commercial Street and also committed Sexual Harassment on her?
3. Whether the Prosecution proves that the Accused has committed the offences punishable under Sections 383, 384, 506 IPC and 11(iv) R/W 12 of POCSO Act, 2012?
4. What Order?
10. My findings on the above points are as under:-
Point No.1 : In the Negative
Point No.2 : In the Negative
Point No.3 : In the Negative
Point No.4 As per final order
for the following
REASONS
11. Points No. 1 to 3: The Prosecution has placed the evidence of minor Victim to prove the Charge of Sexual Harassment, Extortion and Criminal Intimidation committed on her by the Accused. The 9 Spl.C C.300/2015 Victim, the Complainant is examined as PW1. She has deposed that where she was studying 1 st PUC, on 20-04-2015 got friendship with the Accused through Facebook. Afterwards, both of them were going to many different places and took their pair photograph, which was said to be misused by the him subsequently. He has also blackmailed her that he will upload the said photograph in the Social Network and also kill her parents, if she didn't give cash to him. She has stated that different types of jeweleries, big necklace, small necklace, bangles given to him as he has called her to the Commercial Street on 17-02-2015.
12. However, she has clearly stated that the jeweleries of 40 grams big necklace, 36 grams of small necklace, 48 grams of 4 bangles including 2 coorgie bangles and small drops of 6 grams given to him when she met at Commercial Street. Her mother came to know about missing of jeweleries when she 10 Spl.C C.300/2015 checked in the cupboard. Though the Victim initially has shown the ignorance about the jeweleries when her mother questioned her, but afterwards, disclosed about the jeweleries given to the Accused on 17-02-2015 with her mother. Therefore, she was taken to the Police Station and gave the Complaint, which is marked as Ex.P1 and her signature as Ex.P1(a). After receiving the Complaint, the police visited the Spot and conducted Mahazar in the presence of Panchas as per Ex.P2 and her signature is marked as Ex.P2(a).
13. In the Cross examination, it is elicited that the police did not seize her mobile on 24-02-2017, when she gave complaint in the police station. She has stated that the alleged messages exchanged between herself and the Accused were not available in her mobile as on the said date as she deleted immediately after seeing it.
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14. In her further cross examination, she has stated the Accused had taken their pair photographs, whenever they visited Coffee day, Macdonald, Dominos and other Restaurants. According to her, only due to friendship with Accused, she was agreed and cooperated for taking the pair photographs with him and also moving freely whenever he was taking her to different places.
15. It is an admitted fact that she was continuously meeting him in the Restaurants even after alleged threat caused by him said to be only under the fear of that he will do something against her. However, she has admitted that there were different suppliers in the Hotels, where both of them were meeting each other and no hotels bills were obtained from those hotels. However, she has denied that the jeweleries mentioned in the Complaint were not given to the Accused on 17-02-2015 and also no 12 Spl.C C.300/2015 Spot Mahazar conducted by the police at Ibrahim Street as per Ex.P2.
16. The father of the Victim Sri Babu is examined as PW2. According to him the jeweleries, mini necklace, one pair of plain bangles, two pair of here rings were kept in the cupboard were not found, when his wife searched in the house. Therefore, after came to know from the Victim that those jeweleries were given to the Accused and also the Sexual Harassment caused by him, they took her to Police Station and gave Complaint. Afterwards, the police and visited the spot and conducted the Mahazar as per Ex.P2 and his signature is marked as Ex.P2(b). He has identified the jeweleries which were converted into ingots and he got released from the Court are identified in the photographs Ex.P.4 and P.5 are marked as MOs.1 and 2.
17. In the cross examination, he has stated that the Accused was blackmailing his daughter by 13 Spl.C C.300/2015 keeping the photographs in his mobile, which is not proved by producing either the mobile or those photographs taken by him in his mobile.
18. The Head Mistress of B.M. English High School, Smt. Shamala is examined as PW.3. She has produced the details of Date of birth entered in the Admission Register of the School is marked as Ex.P3 and her signature as Ex.P3(a). According to the said document the Date of birth of the Victim is 14-05-1998, that implies as on the date of incident she was aged about 17 years.
19. The Head Constable Mr. Srirama is examined as PW4. He was deputed on the work of searching the Accused along with ASI on 06-03-2015. Afterwards, both of them searched and traced out the Accused at B.M.T.C. Bus Stand on the information given by the local people and he was brought and produced before Investigating Officer in the police 14 Spl.C C.300/2015 station. He has identified the Accused before the Court.
20. The Police Inspector Mr. Ramesh is examined as PW5. He has conducted Further Investigation after taking the case file from CW.17 and obtained the details of Date of birth of the Victim from the concerned School, the same is marked as Ex.P3 and his signature marked as Ex.P3(b). Afterwards, he has completed the Investigation and filed the Charge Sheet against the Accused.
21. The Police Inspector Mr. R.S.T. Khan is examined as PW-6. He is also conducted Investigation in the case, after taking the case file from CW.16. The Accused was produced before him on 06-03-2015 and he has followed the procedure of his Arrest and recorded the Voluntary Statement of the Accused.
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Spl.C C.300/2015
22. After the Accused given the information of jeweleries received from the Victim were kept in the Pan Broker's Shop at Shivajinagar and relevant portion in the Voluntary Statement which is marked as Ex.P.6. On the information given by the Accused, he has taken him with Panchas to the said jewelery shop, where the owner Mohin Mas Mohemmad with whom those jeweleries were pledged by the Accused, has stated that they were converted in to ingots and produced the golden ingot of 52 grams and it was seized under the mahazar marked at Ex.P.7, his signature is marked as Ex.P.7(a). The said golden ingot is marked as MO.1.
23. PW.6 has further produced the Accused before the Court on the same day 10-03-2015 and sought for his Police Custody for the purpose of further investigation. Subsequently, on 13-03-2015 in the presence of panchas, in the house of Accused in Narayan Pille Street, he has conducted Mahazar 16 Spl.C C.300/2015 under Ex.P.9 and seized 10 grams of golden ingot, his signature is marked as Ex.P.9(a). The said ingot is identified as MO.2. He has further identified both the golden ingots in the photographs Ex.P.4 and P.5. However, those ingots were released in favour of the Complainant on 13-05-2015 as per the Order passed by this Court. Further, on 18-03-2015 he has seized the HTC mobile from his house under Seizer Mahazar Ex.P.8 and his signature is marked as Ex.P8(a). The said mobile is marked as MO.3. He was transferred on 14-05-2015, therefore, handed over the case file to PW.5 for further investigation.
24. In the cross-examination, he has admitted the contents of Complaint and descriptions of golden jeweleries mentioned by the Complainant with details of the designs of those jeweleries. Admittedly, he has not obtained any documents relating to those jeweleries and also receipts for purchasing the same from the jewelery shop. He has 17 Spl.C C.300/2015 also admitted that the witnesses for Mahazars were not given any notices to present at the spot, where he has conducted the Mahazars.
25. The important aspect is he has not seen the pair photographs of Victim and Accused in the Mobile seized from the Accused and also not taken any prints of those photographs from the said Mobile. He has also not verified about whether the said mobile contained the phone number of Victim or her house. He has denied that the ingots seized in the case of theft were used against the Accused in the present case and he did not visit any spots and no Mahazar conducted in the presence of Panchas. Further denied that the Panchas who were said to be put signatures to the Mahazars Ex.P.7 to P.9 are permanent witnesses in the Police Station and they were made witnesses in all the cases. He has also denied that without conducting proper Investigation 18 Spl.C C.300/2015 handed over the case file to PW.5 for further investigation.
26. After going through the above discussed evidence of Prosecution witnesses particularly the evidence of Investigating Officers, no proof collected by them with regard to pair photographs of Victim and Accused taken in his mobile, which were said to be misused by him subsequently, to blackmail the Victim.
27. Further the jeweleries alleged to be Extorted by the Accused from the Victim after blackmailing her and also causing threat of killing her parents is not proved by any supporting materials. The important aspect is the Seizer Mahazar conducted by the Investigating Officer under Ex.P7 to 9 are not proved by examining the concerned Panchas who were present at the different spots of the said Mahazras.
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Spl.C C.300/2015
28. After careful perusal of entire oral and documentary evidence, I come to conclusion that the Prosecution has failed to prove that the Accused after came into contact with the Victim, mis-used the alleged Photographs taken with her and also on 17/2/2015, he has Extorted money and Golden jeweleries from her and committed the offence punishable under Sections 383, 384, 506 IPC and 11
(iv) R/w 12 of POCSO Act 2012. Hence, I answer Point Nos.1 to 3 in Negative.
29. Point No. 4: For the above discussed reasons on Points No. 1 to 3, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. Accused Afroze pasha @ Arhan S/o V Mohammed is hereby acquitted for the offences under Sections 383 R/w 384, 506 of IPC and 11(iv) R/w 12 of POCSO Act, 2012.20
Spl.C C.300/2015 The bail bonds executed by the Accused and Surety under Section 437 (A) Cr.P.C. shall be in force till the completion of Appeal period.
The order of release of golden ingots M.Os 1 & 2 made in favour of Complainant is made absolute.
MO.3 and other Properties if any, seized by Investigating Officer are ordered to be destroyed as worthless and useless, after completion of Appeal period.
(Dictated to the Judgement writer, transcript and computerized by her, corrected, signed and then pronounced by me in the open Court today on 4th day of February , 2020.) (S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.21
Spl.C C.300/2015 ANNEXURE
1) List of witnesses examined for the Prosecution PW.1 Victim PW.2 Babu PW.3 Shyamala PW.4 Shivakumar K.S. PW.5 M. Ramesh PW.6 R.S.T.Khan
2) List of documents marked for the Prosecution Ex.P1 Complaint Ex.P1(a) Signature of PW-1 Ex.P2 Spot Mahazar Ex.P2(a) Signature of PW-1 Ex.P2(b) Signature of PW-2 Ex.P3 Date of Birth Certificate Ex.P3(a) Signature of PW-3 Ex.P3(b) Signature of PW-5 Ex.P4 Photo Ex.P5 Photo Ex.P6 Relevant Portion of Voluntary Statement of Accused Ex.P7 Seizer Mahazar Ex.P7(a) Signature of PW-6 Ex.P8 Seizer Mahazar Ex.P8(a) Signature of PW-6 22 Spl.C C.300/2015 Ex.P9 Seizer Mahazar Ex.P9(a) Signature of PW-6
3) List of Material Objects marked for the Prosecution M.O.1 & 2 Golden ingots M.O.3 HTC Mobile
4) List of witnesses examined for the Accused Nil
5) List of documents marked for the Accused Nil
6) List of Material Objects marked for the Accused Nil (S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.
*** 23 Spl.C C.300/2015 Accused is present.
Judgment pronounced in the open court, (vide separate Judgment ) ORDER Acting under Section 235(1) of Cr.P.C. Accused Afroze pasha @ Arhan S/o V Mohammed is hereby acquitted for the offences under Sections 383 R/w 384, 506 of IPC and 11(iv) R/w 12 of POCSO Act, 2012.
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Spl.C C.300/2015 The bail bonds executed by the Accused and Surety under Section 437 (A) Cr.P.C. shall be in force till the completion of Appeal period.
The order of release of golden ingots M.Os 1 & 2 made in favour of Complainant is made absolute.
MO.3 and other Properties if any, seized by Investigating Officer are ordered to be destroyed as worthless and useless, after completion of Appeal period.
(S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.