Bangalore District Court
Unknown vs Digvijay Thiwari on 28 September, 2016
IN THE COURT OF THE LIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE
DATED THIS THE 28th DAY OF SEPTEMBER 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 585/2014
COMPLAINANT :
The State of Karnataka by
J.P. Nagar Police Station,
Bangalore.
[Represented by learned Public Prosecutor,
Bangalore.]
/ VERSUS /
ACCUSED:
Digvijay Thiwari,
S/o. Chandrapal Thiwari,
Aged about 23 years,
R/o 1st 'C' Main, 16th Cross
J.P. Nagar, 4th Phase,
Bangalore
[Reptd by Sri. Ganesh.G.G. -
advocate]
***
2 Spl.C.C.585/14
JUDGMENT
J.P. Nagar Police, Bangalore City have charge sheeted the accused for offences punishable under Sections 354-A (i), 342 of I.P.C. and under Section 8 of Protection of Children from Sexual Offence Act, 2012.
2. The case of the prosecution, in brief, is as under :
CW-4 is the child of CW-2 and 3. During the year 2014 accused was residing in the opposite house of the victim girl. On 31.5.2014 at about 7.15 p.m., she came back to house after tuition, thereafter disappeared. Then her parents and her uncle searched here and there, the room of the accused was kept open at that time, CW-5 went inside, on seeing the bathroom, being latched, opened it and found victim on Sajja. He brought her back. On next day enquired, then she revealed about the sexual harassment made by him and she was kept on sajja by latching bathroom from outside. CW-1 uncle of victim girl had lodged a complaint. Accused was apprehended.
Investigating Officer recorded the statement of victim girl. Accused and victim girl were sent to hospital for medical examination.
3 Spl.C.C.585/14 Investigating Officer had recorded the statement of other prosecution witnesses and drew necessary mahazars. By completing investigation, he submitted charge sheet to the Court for the aforesaid offences.
3. The charge sheet submitted to this Court. Cognizance was taken and registered in Special C.C. On hearing both sides the charge was framed for offences punishable under Sections 354-A, 342 of I.P.C. and Section 7 r/w Section 8 of Protection of Children from Sexual Offence Act, 2012. The same was read over to the accused. The accused pleaded not guilty and claimed to be tried. Hence, posted for prosecution evidence.
4. On prosecution side got examined as many as 4 witnesses as P.W.1 to 4 out of 17 charge sheet witnesses and got marked the documents at Ex.P.1 to Ex.P.7. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence 4 Spl.C.C.585/14 against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments on both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under:
1. Whether the prosecution has proved beyond reasonable doubt that accused had sexually harassed CW-4, the child of CW-2 on 31.5.2014 at about 7.15 p.m., in his house situated in 16th Cross, 4th Phase, J.P. Nagar, Bangalore, punishable under Section 354-A of I.P.C?
2. Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place accused had wrongfully confined her on the Sajja of bath room of his house, punishable under Section 342 of I.P.C?
3. Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place accused had committed sexual assault on CW-4 with sexual intention, punishable under Section 7 r/w Section 8 of 5 Spl.C.C.585/14 Protection of Children from Sexual Offence Act, 2012?
4. What order?
7. 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 orders for the
following
REASONS
8. Point Nos.1 to 3 :- These three points are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
9. The prosecution made allegations against the accused that he had sexually harassed CW-4 aged about 16 years on 31.5.2014 at about 7.15 p.m., in his house, and he had sexually abused CW-4, with sexual intention he had hugged her in his room, when she protested he kept her on Sajja of the bathroom and latched from outside. The incident occurred after coming into force of Protection 6 Spl.C.C.585/14 of Children from Sexual Offence Act, 2012. In view of Section 2(1)(d) of POSCO Act "child" means any person who is under the age of 18 years. According to prosecution PW-4 was aged about 15 years as on the date of alleged incident. At the time of oral evidence PW-4 has stated that her age was 16 years. Her evidence was recorded on 23.8.2016. On going through the evidence of PW-1 to 4 the age of the victim has not been disputed on otherside. Apart from that the prosecution got certified the age of prosecutrix from the Doctor at KIMS hospital, Bangalore. Accordingly, her age as on the date of incident is between 14 to 16 years based on the physical, dental and radiological examination. This evidence remains unchallenged on defence side. Hence, the age of the victim as on the date of occurrence is very well be concluded that she was under
18 years.
10. Ofcourse, Section 29 of Protection of Children from Sexual Offence Act, 2012 provides presumption in favour of the accused it reads as under:-
7 Spl.C.C.585/14 "Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."
In the present case accused has been prosecuted for offence under Section 7 of POSCO Act to which Section 29 also applies. However, it is the duty of the prosecution first to establish its case beyond reasonable doubt, then it shifts over to the accused to rebut the presumption. Therefore, first the evidence available on prosecution side is to be looked into.
11. There are two charges of which are interconnected to each other. There is charge under Section 354-A of I.P.C. and third head is for offence under Section 7 r/w Section 8 of POSCO Act. Section 354-A (in view of amendment Act 2013) provides sexual harassment and punishment for sexual harassment. Relevant portion reads as under:
"(1) A man committing any of the following acts:
8 Spl.C.C.585/14
i) Physical contact and advances involving unwelcome and explicit sexual overtures; or
ii) A demand or request for sexual favours; or."
On plain reading of aforesaid provision it provides the sexual harassment.
12. Section 7 of POSCO Act deals with sexual assault. It provides as under:
"Sexual Assault - whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault".
On going through the Section 7 of POSCO Act it consists of 3 parts.
a) With sexual intent touches the
vagina, penis, anus or breast of the
child or
9 Spl.C.C.585/14
b) Making the child touch the vagina,
penis, anus or breast of such person
or any other person, or
c) Does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault.
13. Section 354-A and Section 7 are read together both involve physical contact without penetration amounting to sexual assault/harassment. Whereas under Section 7 of POSCO Act, act should be coupled with sexual intention. The offence under Section 354-A and Section 7 of POSCO Act are almost one and the same. So far as concerned to ingredients under Section 7 of POSCO Act there must be sexual intention for the act done as laid down therein. Therefore, there are two crucial points to be looked into.
14. One is sexual harassment/sexual assault and another is sexual intention of the accused. In order to prove its case prosecution has got examined as many as 4 witnesses who are the material witnesses in the present case. According to prosecution accused is not a stranger to the prosecutrix. Accused was residing in 10 Spl.C.C.585/14 the same street i.e., in the opposite room of the house of the victim. They used to talk. Accused is aged about 23 years, prosecutrix as on the date of occurrence is aged about 15 years. According to prosecution PW-4 had gone to the tuition, after her return she was sent to bring the milk, then the accused called her to his room that day was his birth day. She had gone with him to his room, immediately he hugged, when she made an attempt to relieve herself, but he dragged her to bathroom and made her lie on sajja, then she felt giddiness and lied on the sajja. After sometime, she regained consciousness when the water was sprinkled on her face by CW-4 his uncle. She was brought by him to the house, since she was in fear, no enquiry was made. On next day, PW-3 who is her mother enquired, then victim girl revealed the incident that while she was going to bring curds, accused made her and took her to his room by stating that day was his birth day and also she revealed what happened next. Based on her statement PW-1 the paternal uncle of victim girl had lodged a complaint as per Ex.P1 by making allegation against the accused as stated by victim girl. This is the case of the prosecution.
11 Spl.C.C.585/14
15. In order to prove the charge of sexual harassment/assault, the evidence of PW-4 and CW-5 Narismhamurthy is very material. According to prosecution PW-4 is the prosecutrix indulged into sexual harassment/sexual assault. CW-5 is the person who found the prosecutrix on sajja of the bathroom in the room of the accused on the alleged date of the incident and he is the person who brought her to the house. CW-5 is not examined. However, PW-4 is examined on prosecution side. Her version assumes more importance. She is the proper person to speak about the incident. Her oral testimony does not disclose any incriminating statement against the accused. She has not testified against the accused. According to prosecution, she had given the 161 statement as per Ex.P7 on 2.6.2014 reiterating the case of the prosecution. But, before the court she has completely resiled from the statement at Ex.P7. In the absence of support by the prosecutrix herself, it is very difficult to draw inference against the accused, and also to connect the accused with alleged charge of sexual assault or sexual harassment. In order to attract Section 7 of the POSCO Act, the act of sexual assault coupled with sexual intent is very essential. Sexual intention could be gathered from the conduct 12 Spl.C.C.585/14 of the accused and surrounding circumstances. But, here there are no materials on record to show the alleged incident committed by the accused. In the chief-examination itself PW-4 has denied the statement given by her before Investigating Officer as per Ex.P7. Even she has also denied that she had given voluntary statement before the doctor as mentioned in Ex.P5. Under the circumstance, the court shall have to be looked into is there any other materials to hold the guilt of the accused. But, there is no other piece of evidence found on record to convict the accused for the alleged charge of sexual assault or sexual harassment.
16. PW-1 Ravi Subramanya is another material witness. Ofcourse, he is hearsay witness. But, he is the complainant, on being heard from mother of PW-4 about the incident he had lodged a complaint as per Ex.P1 on 1.6.2014 to take action against the accused. According to prosecution Ex.P2 spot mahazar was drawn in his presence on spot. But, the evidence of PW-1 is also of no avail to the prosecution. His evidence does not corroborate the prosecution case. Therefore, the case of the prosecution becomes very feeble to connect the accused with alleged charges.
13 Spl.C.C.585/14
17. PW-2 is the father of the prosecutrix. PW-3 is the mother of the prosecutrix. They are also other material witnesses in the present case. According to prosecution PW-3 enquired prosecutrix on next day of the incident as she was panic on the date of the incident after she was brought home. PW-4 disclosed whole incident before her mother. Therefore, evidence of PW-3 also plays vital role. However, on going through her evidence it does not suggest anything against the accused. Nothing is forthcoming in her cross- examination to connect the accused for alleged charge.
18. PW-2 father of the prosecutrix has also not supported the prosecution case. In the chief examination he has not at all stated anything against the accused. In the cross-examination he flatly denied the suggestions made by the learned Public Prosecutor. He has also denied the statement at Ex.P3 stated to have been given by him before the Investigating Officer on 1.6.2014. His evidence also does not help the prosecution in proving its case.
19. As discussed in supra the evidence of PW-1 to 4 would not suggest either the sexual assault or sexual harassment on the 14 Spl.C.C.585/14 prosecutrix said to have been committed by the accused. In the absence of support by the prosecutrix, in the absence of any other materials the accused cannot be convicted for alleged charge of sexual harassment or sexual assault.
20. Even so far as concerned to wrongful confinement also none of the witnesses has spoken on this aspect. As already discussed in supra either the prosecutrix or the other witnesses have not supported the prosecution. They have totally denied the whole case of the prosecution. In the absence of any evidence on the point of the wrongful confinement the accused cannot be connected with the crime. When the prosecution has at the first time itself failed to prove that prosecutrix was taken away by the accused to his room, question of wrongful confinement of PW-4 does not arise at all. The first and foremost point to be established by the prosecution is; accused had taken her to his room, secondly act of sexual harassment or sexual assault. Thirdly, the wrongful confinement, and fourthly she was traced by CW-5 uncle of the prosecutrix. There is no evidence on prosecution side to establish these aspects. Hence, the prosecution has miserably failed to prove its case beyond 15 Spl.C.C.585/14 reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold points No.1 to 3 in the negative.
21. Point No.3: 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 under Sections 366 and 354-A, 342 of I.P.C. and Section 7 r/w Section 8 of Protection of Children from Sexual Offence Act, 2012.
Items Nos. 1 to 5 in PF No.109/14 (PR No.22/2016) are ordered to be destroyed as worthless after appeal period is over.
Award of compensation as in Section 7(2) of POSCO Act, to PW-4 the prosecutrix is hereby recommended to District Legal Services Authority, Bangalore Urban. Submit 16 Spl.C.C.585/14 the copy of the F.I.R., complaint, charge sheet and last day order sheet to D.L.S.A. (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 28th day of September, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Ravi Subramanya PW.2 Narayanaswamy C PW.3 Vijaya PW.4 Prosecutrix LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Complant Ex.P 1(a) Signature of PW-1 Ex.P 2 Panchanama Ex.P 2(a) Signature of PW-1 Ex.P 3 Statement of PW-2 Ex.P 4 Statement of PW-3 Ex.P 5 Medical report of victim Ex.P 5(a) Signature of victim Ex.P 5(b) Signature of victim Ex.P 6 Age estimation certificate Ex.P 6(a) Signature of victim Ex.P 7 161 statement of victim 17 Spl.C.C.585/14 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-
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
*** 18 Spl.C.C.585/14 28.09.2016 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 under Sections 366 and 354-A, 342 of I.P.C. and Section 7 r/w Section 8 of Protection of Children from Sexual Offence Act, 2012.
Item Nos. 1 to 5 in PF No.109/14 (PR No.22/2016) are ordered to be destroyed as worthless after appeal period is over.
19 Spl.C.C.585/14 Award of compensation as in Section 7(2) of POSCO Act, to PW-4 the prosecutrix is hereby recommended to District Legal Services Authority, Bangalore Urban. Submit the copy of the F.I.R., complaint, charge sheet and last day order sheet to D.L.S.A. (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.