Bangalore District Court
State By Bagalagunte Police vs Sudhakar on 18 September, 2019
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the, 9 th day of , September, 2019.
Present: SMT.R.SHARADA,B.A. M.L
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO. 75/2019
COMPLAINANT: State by Bagalagunte Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Sudhakar,
Son of Srinivas,
Aged 22 years,
Residing at Near Y Max Junction,
Abbigere, Bangalore.
Permanent address:
No.65, 2nd Main Road, Jalahalli,
Bangalore.
[The accused is in the judicial custody ]
[By Advocate Sri.CVG]
1. Date of commission of offence 9.11.2018
2. Date of report of occurrence 10.11.2018
of the offence
3. Date of arrest of accused 16.11.2018.
Since the date of his arrest, the accused is
in the judicial custody
4. Date of commencement of 25.2.2019
evidence
2 Spl CC No.75/2019
5. Date of closing of evidence 3.8.2019
6. Name of the complainant Sri.Narasimhamurthy, complainant as well
as the father of the victim girl
7. Offences complained of Secs. 366, 376 of IPC and Secs. 4, 5(L),
6 of POCSO Act, 2012.
8. Opinion of the Judge A cting under Sec.235(2) of Cr.P.C,
I hereby convict the accused for
the offence punishable under
Sec.363 of IPC.
Acting under Sec.235(1) of Cr.P.C,
I hereby acquit the accused for the
offences punishable under
Sec.376 of IPC and for the offence
as defined under Sec.5(l)
punishable under Sec.6 of POCSO
Act, 2012.
JUDGEMENT
The Police Inspector, Bagalagunte police station has filed charge-sheet against the accused for the offences punishable under Secs. 366, 376 of IPC and Secs. 4, 5(L), 6 of POCSO Act, 2012.
2. The brief facts of the prosecution case is that, the accused knowingly that CW2 was minor in age, enticed her by saying that he is loving her and he will marry her and on 9.11.2018 at 6.30 P.M., in the evening, the accused kidnapped CW2 from her house No.2, Anjaneya Temple Road, 1st Cross, Mallasandra, Bangalore with an intent that CW2 will be compelled to marry the accused and to have illicit intercourse with her and kept her in House No.276, Near Abbigere Y Max Junction, Depo Muniswamappa 3 Spl CC No.75/2019 Layout and on 11.11.2018, in the night at 11 P.M., the accused removed the clothes of CW2 and had forcible sexual intercourse with her and till 16.11.2018, the accused continued the act of aggravated penetrative sexual assault on CW2 repeatedly. Initially on the basis of the missing complaint lodged by the complainant who is none other than the father of the victim girl that, his daughter/ victim girl aged 16 years on 9.11.2018 in the night at 8.00 P.M., went out of the house without informing to anyone, but did not turn up. On the same day in the night at 11 P.M., the victim girl messaged the complainant and told him that she is going with one Suggi. Thereby the complainant requested the complainant police to trace out his daughter. Hence, on the basis of the said complaint, the complainant police have registered a case in Cr.No.452/2018 for the offence punishable under Sec.363 of IPC and commenced investigation. During the course of investigation, the victim girl and the accused were traced out and on the basis of the statement given by the victim girl, the complainant police have inserted Secs. 366, 376 of IPC and Secs. 4, 5(L), 6 of POCSO Act, 2012 and continued with the investigation by arresting the accused. After completion of investigation, the Investigation Officer has filed charge-sheet against the accused for the offences punishable under Secs. 366, 376 of IPC and Secs. 4, 5(L), 6 of POCSO Act, 2012.
3. During the course of investigation the Investigating Officer has arrested the accused on 16.11.2018 thereby he was remanded to the judicial custody. Since the date of his arrest, the accused is in the judicial custody. As per the provisions of 4 Spl CC No.75/2019 Sec.207 of Cr.P.C, copies of the charge-sheet furnished to the accused. Accordingly charge is framed, read over and explained to the accused, he pleaded not guilty, claims to be tried. Accordingly, the trial is fixed, summons issued to the prosecution witnesses.
4. The prosecution has examined totally 17 witnesses as Pws-1 to 17 and got marked 21 documents as Exs.P1 to P21. Thereafter Statement of the accused was recorded under Sec.313 of Cr.P.C. The accused has denied all the incriminating evidence told to him, but he has not examined any witnesses on his behalf and no documents are marked.
5. Heard the arguments of the learned Public Prosecutor and the learned counsel for the accused. On perusal of the oral and documentary evidence, at this stage, following Points arise for my consideration:
1. Whether the prosecution proves that, the accused knowingly that CW2 was minor in age, enticed her by saying that he is loving her and he will marry her and on 9.11.2018 at 6.30 P.M., in the evening, the accused kidnapped CW2 from her house No.2, Anjaneya Temple Road, 1 st Cross, Mallasandra, Bangalore with an intent that CW2 will be compelled to marry the accused and to have illicit intercourse with her and kept her in House No.276, Near Abbigere Y Max Junction, Depo Muniswamappa Layout and kept her in the said house, thereby the accused has committed an offence punishable under Sec.366 of IPC?
2. Whether the prosecution further proves that, on the said date, time and place, the accused not only kidnapped CW2/ victim girl from her house, but, also kept her in House No.276, Near Abbigere Y Max Junction, Depo Muniswamappa Layout and on 11.11.2018, in the night at 5 Spl CC No.75/2019 11 P.M., the accused removed the clothes of CW2 and had forcible sexual intercourse with her and till 16.11.2018, the accused continued the act of aggravated penetrative sexual assault on CW2 repeatedly, thereby the accused has committed the offences punishable under Sec.376 of IPC and for the offence as defined under Sec.5(l) punishable under Sec.6 of POCSO Act, 2012?
3. What Order?
6. My findings on the above points are as under:
Point No.1 In the affirmative for the offence punishable under Sec.363 IPC only.
Point No.2: In the NEGATIVE Point No .3: As per the final order, for the following:
REASONS
7. POINT NOS. 1 AND 2: These Points are inter-linked to each other, hence, they are taken up together for common discussion, in order to avoid repetition of facts.
8. During the course of arguments, the learned Public Prosecutor has submitted that in order to prove the prosecution case totally 17 witnesses are examined as PWs-1 to 17 and 21 documents are marked as Exs.P1 to P21. The PW1 Victim girl and her parents though not supported the case of the prosecution but out of their evidence it could be gathered that the accused had eloped the Victim girl from legal custody of her parents, thereby the accused is liable to be held guilty for the offence punishable under Sec.363 of IPC. Apart from that, the evidence given by the doctor and the police officials as well as the Investigating Officer 6 Spl CC No.75/2019 support the case of the prosecution. With these, the learned Public Prosecutor prays to convict the accused in the interest of justice and equity.
9. Per contra, the learned counsel for the accused submitted that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubts because in the present case the alleged offences are punishable under Sec.366 of IPC and Sec.376 of IPC and Sec.6 of POCSO Act, 2012, but the prosecution has not produce single piece of medical evidence in order to prove the guilt of the accused. The Victim girl and her parents as well as other material witnesses as mahazar witnesses, circumstantial witness have all turned hostile to the prosecution thereby the prosecution has failed to prove the guilt of the accused. The police officers though deposed before the court for having discharged their duties, but their evidence not corroborated with the evidence of the victim girl and her parents, thereby only on the basis of the evidence given by the police officials, the accused cannot be convicted and in the present case, it is the allegation of the prosecution that the accused and the Victim girl were talking though mobile phone, but no mobile phone is seized. Considering all these facts and circumstances as well as the evidence of the prosecution it can be hold that the prosecution has not proved the guilt of the accused thereby he is entitled for acquittal. With this, the learned counsel for the accused prays to acquit the accused in the interest of justice and equity.
7 Spl CC No.75/201910. I have perused the oral and documentary evidence furnished by the prosecution before this court. The prosecution in order to prove its case has examined as many as 17 witnesses, out of them, PW1/CW2 is the victim girl herself. PW2/CW1 is the father of the victim girl. PW3/CW3 is the Mahazar witness to Ex.P6. PW4/CW6 is the Mahazar witness to Ex.P7.
PW5/CW5 is also one of the witness to Mahazar at Ex.P7. PW6/CW7 is the mother of the victim girl. PW7/CW8 is the junior aunt of the victim girl. PW8/CW9 is the grandmother [victim girl's mother's mother] of the victim girl. PW9/CW14 is the Lady Doctor who has physically examined the victim girl and also the accused. PW10/CW10 is the grandmother [victim girl 's father's mother] of the victim girl. PW11/CW11 is the Senior Uncle of the victim girl. PW12/CW13 is the owner of the house wherein the accused was residing as a tenant. PW13/CW17 is the Woman PC who deposed about tracing out the victim girl and the accused and apprehending them and producing them before her higher officer. PW14/CW23 is the Head constable who has deposed about taking the sealed articles seized in this case to the FSL, Madiwala, Bangalore for chemical examination. PW15/CW18 is the Woman PC who has deposed about taking the victim girl of this case to the medical examination. PW16/CW26 is the PSI who has deposed about conducting preliminary investigation of this case and PW17/CW27 is the Final Investigation Officer of this case. In support of its case, the prosecution has also produced the following documents: Ex.P1 is the Statement of the victim girl given before the complainant police under Sec.161 of Cr.P.C. Ex.P2 is the Statement of the victim girl given before the 8 Spl CC No.75/2019 Magistrate under Sec.164 of Cr.P.C. Ex.P3 is the Consent for Examination of the victim girl. Ex.P4 is the Complaint. Ex.P5 is the Further statement of PW2 . Ex.P6 is the Panchanama. Ex.P7 is the Panchanama. Ex.P8 is the Statement of PW6 given before the complainant police under Sec.161 of Cr.P.C. Ex.P9 is the Statement of PW7 given before the complainant police under Sec.161 of Cr.P.C. Ex.P10 is the Statement of PW8 given before the complainant police under Sec.161 of Cr.P.C. Ex.P11 is the Medical Report of the accused. Ex.P12 is the Examination of Victim for Evidence of Sexual Intercourse. Ex.P13 is the Statement of PW10 given before the complainant police under Sec.161 of Cr.P.C.. ExP14 is the Statement of PW11 given before the complainant police under Sec.161 of Cr.P.C. Ex.P15 is the Study Certificate of the victim girl. Ex.P16 is the Report of PW14. Ex.P17 is the Report of PW15. Ex.P18 is the Report. Ex.P19 is the Voluntary statement of the accused. Ex.P20 is the Acknowledgement issued by FSL, Madiwala, Bangalore and Ex.P21 is the FSL Report.
11. Now coming to the detailed evaluation of the prosecution witnesses , firstly I would like to take up the evidence of the victim girl who is examined as PW1 before this court. PW1/ victim girl in her evidence before the court has deposed that, she knows the accused and she has identified the accused in the accused platform located in the court hall. The accused was in talking terms with her and he has not misbehaved with her and he has not caused any trouble to her family members. She had gone to her friend's house and had not informed the same to her mother. The police brought her from Koppala to the police station. Herself 9 Spl CC No.75/2019 and the accused went to Koppal to the house of the friend of the accused by name Ullesh and from there the police brought them. Her parents were also called to the police station. In the police station, her parents did not enquire her, but, when they returned back to the home, her parents enquired with her and she told that herself and the accused went willingly. They both stayed in Koppal for 5 days in the house of Hullesh and there in the said house, she used to sleep with the aunt of Hullesh and the accused used to sleep with his friend Hullesh. She has not given any statement against the accused and she has not stated anything about the rape committed on her. The Statement of the victim girl given before the complainant police under Sec.161 of Cr.P.C is marked as Ex.P1 and her signature is marked as Ex.P1(a). She has identified her signature in her Statement given before the Magistrate under Sec.164 of Cr.P.C and the said Statement is marked as Ex.P2 and her signature is marked as Ex.P2(a). While giving statement before the Magistrate, she had stated that, the accused had told her that he will marry her and they both had decided to marry. The police had sent her to the hospital, but, there the doctor did not examine her. She has identified her signature on the Consent Form for Medical Examination which is marked as Ex.P3 and her signature is marked as Ex.P3(a). She has denied that, while signing Ex.P3, she had given consent to the doctor. When she had been to the doctor, as she had menstruation, the doctor did not examine her. Thereafter she had not given consent for medical examination. At this stage, the learned Public Prosecutor treated this witness as hostile and subjected her for cross-examination. In her cross- examination, this witness has denied the suggestion that, the 10 Spl CC No.75/2019 accused has taken her forcibly despite her refusal in an auto to Abbigere. She has also further denied the suggestion that, the accused took her to his room and kept her in the said room. She also further denied the suggestions that, on 11.11.2018 when she was sleeping, the accused came besides her and touched her body and he also removed her clothes despite her protest and he also committed rape on her. She also further denied the suggestion that, the accused has enticed her and committed rape on her repeatedly. But she has admitted that the police by knowing that they both are there in the said spot, came there and brought them. She has also admitted that, the police had called her father and mother. She has also admitted the suggestions that, she was enquired and she had told the incident and the same was typed and obtained her signatures. But she has denied the suggestion that, she had read over the writings and signed on it. She has admitted the suggestion that, her family members and the family members of the accused are having talks to get her [ victim girl ] married to the accused. But, she has denied the suggestion that, if she deposes truly, she will be put to trouble, so, she is deposing falsely. This witness was not cross-examined by the learned counsel for the accused.
12. PW2-Narasimha Murthy is the complainant as well as the father of the victim girl. In his evidence before the court he has deposed that, CW2/ victim girl is his daughter. He do not know the accused. He has not identified the accused in the accused platform located in the court hall. He has given the complaint. Some 3 to 4 months prior to the date of giving his evidence before 11 Spl CC No.75/2019 the court, his daughter was missing, hence, he had lodged a complaint. At that time, his daughter was studying in 1 st year PUC and she was 16 years of age. Four days after lodging the complaint, his daughter was found. He has identified his signature on the Complaint which is marked as Ex.P4 and his signature is marked as Ex.P4(a). The police had secured his daughter to the police station and himself and his wife[CW7] went to the police station and there his daughter was also there. His daughter was not enquired and she has also not told anything to them. He had seen the accused in the police station. His daughter had told that she will marry the accused only. Other than this, she had not told anything. He has not given any statement to the police. The witness has identified his signature on his further statement which is marked as Ex.P5 and his signature is marked as Ex.P5(a). After lodging the complaint, the police had come near his house and drawn Mahazar as per Ex.P6 and his signature is marked as Ex.P6(a). He has not read the contents of Ex.P6. His daughter was not taken before the Magistrate. He has further deposed that, after his daughter attains 18 years of age, he will perform her marriage with the accused. At this stage, the learned Public Prosecutor treated this witness as hostile and subjected for cross-examination. In his cross-examination, this witness has admitted that, when his daughter went missing from the house on the same day at 11 P.M., in the night, his daughter had telephoned him and told that she is going with one Suggi and not to search her. He has admitted the suggestion that, he is suspecting against one Suggi. He has also admitted the suggestion that, thereafter the police 12 Spl CC No.75/2019 came near his house and conducted mahazar and at that time, Cws-3 and 4 were also present there and the police have conducted panchanama and himself and CWS-3 and 4 have signed on it. But, he has denied the suggestions that, when he enquired with his daughter, his daughter had told him that the accused enticed her and took her along with him and thereafter the accused took his daughter to Abbigere and kept her in his room. Further he has denied the suggestions that his daughter had told him that, on 11.11.2018, when his daughter was sleeping, the accused came besides her and touched her body parts. He has further the denied the suggestion that his daughter had told him that, despite the protest of his daughter, the accused removed her clothes and committed rape on her and like this the accused had continued the act of rape on her repeatedly. He has admitted the suggestion that his daughter had told about the fact that when herself and the accused were in the said spot, she was brought. But, he has denied the suggestion that, his daughter had told all these things to him. He has admitted the suggestion that, there are marriage talks going on in his family to give in marriage his daughter [victim girl] to the accused. He has also admitted that, the parents of the accused have happily agreed his daughter as their daughter-in-law. But, he has denied the suggestion that, if he deposes the true facts, it will cause trouble and for that purpose he is deposing falsely. This witness was cross-examined by the learned counsel for the accused. In his cross-examination, he has stated that, he has not read the panchanama and the police have also not read over the contents of panchanama to him. He has admitted that, by suspicion, he has lodged a complaint. He has 13 Spl CC No.75/2019 also admitted that, the police have not come near his house. He has also admitted that, the accused has not caused any trouble to his daughter. He has also admitted that, his daughter has not told anything about the accused giving her trouble. He also admitted that, the accused has not caused any trouble to his daughter.
13. PW3-Kumar is the witness to the Mahazar as per Ex.P6. In his evidence before the court he has deposed that, he knows CW4. He do not know CW1. Some 3 to 4 months back to the date of giving his evidence before the court, when he had been to the police station for theft of his vehicle, at that time he had signed. The Mahazar at Ex.P6 was confronted to him. He has identified his signature on Ex.P6 as per Ex.P6(a). Other than this he do not know anything. He also do not know the contents of Ex.P6. The police have not read over the contents of Ex.P6. Along with him, CW4 was also present and signed on Ex.P6. At this stage, the learned Public Prosecutor treated this witness as hostile and subjected him for cross-examination. In his cross-examination, this witness has denied the suggestion that, himself and CW4 were secured to House No.2, Mallansandra. He has also denied the suggestion that, CW1 was also present and he was also present. He has also denied the suggestion that, the police wrote the mahazar there. He has also denied the suggestion that, he had read the contents and signed on it. He has also denied the suggestion that, in order to help the accused he is deposing falsely. This witness was not cross-examined by the learned counsel for the accused.
14 Spl CC No.75/201914. PW4-Kumar and PW5- Venkatesh are the witnesses to the Spot Mahazar as per Ex.P7. But they have not supported the case of the prosecution but totally given go-bye evidence except identifying their signatures on Ex.P7 as per Ex.P7(a) and (b) respectively. Though the Learned Public Prosecutor subjected these witnesses for cross-examination by treating them as hostile but nothing is elicited from their mouth a single piece of evidence in favour of the prosecution. These witnesses have denied all the suggestions put by the Learned Public Prosecutor to them. They have also denied the suggestion that, they are deposing falsely in order to help the accused. These witnesses were not cross- examined by the learned counsel for the accused.
15. PW6- Mohan Kumari is the mother of the victim girl. In his evidence before the court she has deposed that CW2 is her daughter. She do not know the accused. She has not identified the accused in the accused platform located in the court hall. Last year ie prior to the date of giving her evidence before the court, her daughter/ victim girl was studying in 1 st year PUC in SRS college and she was aged 17 years. She has further deposed that, during the Last November, her daughter/ victim girl was missing, hence, her husband had lodged a complaint. They searched for the victim girl, but, she was not traced out. One week later after lodging the complaint, her daughter was traced out and she saw her daughter in the police station, she has not enquired with her daughter and her daughter has also not told anything to her. The accused who was present before the court was also there in the police station.
15 Spl CC No.75/2019She has not given any statement to the police. She had accompanied her daughter to Sapthagiri Hospital for medical examination and the doctor did not examine her daughter. Her daughter was also not taken before the Magistrate. Other than this she has nothing to say. At this stage, the learned Public Prosecutor treated this witness as hostile and subjected her for cross-examination. In her cross-examination she has admitted that, on 9.11.2018 her daughter was found missing and herself and her husband searched for their daughter, later on 10.11.2018 they lodged a complaint. She has also admitted the suggestion that, on 16.11.2018, the police secured their daughter. She has denied the suggestions that her daughter had told her that, the accused took her daughter on the pretext of marrying her, but inspite of her daughter refusing, the accused forcibly took her daughter to Abbigere and kept her in a room and on 11.11.2018 in the night at 10 P.M., when her daughter was sleeping, the accused touched the body of her daughter and by telling that he will marry her daughter, the accused committed rape on her daughter repeatedly. She has further denied the suggestion that, all these things were told by her daughter to her and she has told the same to the police. The Statement given by her [PW6] is marked as Ex.P8. She has further denied the suggestion that, the marriage of her daughter/ victim girl is fixed with the accused, because for that purpose, inspite of knowing the contents of Ex.P8, she is deposing falsely as it would affect her daughter's future. This witness was cross-examined by the learned counsel for the accused. In her cross-examination, this witness has admitted that, 16 Spl CC No.75/2019 she has seen the accused only in the court and prior to that she has not seen him.
16. PW7- Lathamani is the junior aunt of the victim girl and younger sister of the mother [CW7] of the victim girl. Last year ie., prior to the date of giving her evidence before the court, the victim girl was studying in 1 st year PUC and she was aged 16 years at that time. Her sister/CW7 had not stated anything about her daughter/ victim girl. She do not know that her brother-in-law/CW1 had given complaint. She do not know the accused. She has not identified the accused in the accused platform located in the court hall. She do not know anything about this case. She has not given any statement to the police. At this stage, the learned Public Prosecutor treated this witness as hostile and subjected her to cross-examination. In her cross- examination she has denied the suggestion that, the accused had committed rape on the victim girl and likewise the victim girl had told her [Pw7] everything. She has also denied that, she has given Statement to the police as per Ex.P9. She has admitted the suggestions that, there is marriage talks in her family to perform the marriage of CW2/ victim girl with the accused and even the accused's family have agreed with the said proposal of marriage between the accused and the victim girl. But she has denied that, because of this reason, she is deposing falsely by concealing the truth before the court. This witness has not been examined by the learned counsel for the accused.
17 Spl CC No.75/201917. PW8-Mangalamma, has deposed before the court that, CW1 is her brother as well as her son-in-law and CW7 is her daughter and CW2 is the daughter of Cws-1 and 7. Last year ie., prior to the date of giving her evidence before the court, the victim girl was studying in 1st year PUC and she was aged 16 years at that time. Her sister/CW7 had not stated anything about her daughter/ victim girl. She do not know that her brother-in-law/CW1 had given complaint. She do not know the accused. She has not identified the accused in the accused platform located in the court hall. She do not know anything about this case. She has not given any statement to the police. At this stage, the learned Public Prosecutor treated this witness as hostile and subjected her to cross-examination. In her cross- examination she has denied the suggestion that, the accused had committed rape on the victim girl and likewise the victim girl had told her [Pw8] everything. She has also denied that, she has given Statement to the police as per Ex.P10. She has admitted the suggestions that, there is marriage talks in her family to perform the marriage of CW2/ victim girl with the accused and even the accused's family have agreed with the said proposal of marriage between the accused and the victim girl. But she has denied that, because of this reason, she is deposing falsely by concealing the truth before the court. The learned counsel for the accused was present before the court and submitted that he has no cross-examination of this witness.
18 Spl CC No.75/201918. PW9-Dr.Sujatha, Assistant Professor, Sapthagiri Hospital, Bangalore has deposed before the court that, on 16.11.2018 in between 1.45 to 2.45 P.M., she has examined the victim girl of this case sent by Bagalgunte police through WPC along with the mother of the victim girl with the history of sexual assault on the victim girl. On that day, she enquired with the victim girl as well as her mother and they agreed for medical examination. Accordingly she has conducted general physical examination of the victim girl on that day and found that the victim girl was developed according to her age. On that day, she could not conduct the genital examination of the victim girl, as the victim girl had menstruation and therefore, she asked the victim girl to come after her menstruation. Accordingly on 22.11.2018, at about 12.30 P.M., the victim girl was brought before her, but the victim girl refused to undergo genital examination and so she could not conduct the genital examination of the victim girl. Accordingly she has given Report which is marked as Ex.P12 and her signature is marked as Ex.P12(a). Further she has deposed that on the same day i.e., on 16.11.2018 in between 3.10 to 4.10 P.M., the accused by name Sudhakar aged 22 years was produced before her through PC of Bagalagunte police station for medical examination. With the consent of the accused, she has examined him. On physical examination, the accused was moderately built and well-nourished. On genital examination, she found that all organs were normal as per his age and intact and opined that, there is nothing to suggest that the person is incapable of performing sexual intercourse. Accordingly she has given the Medical Certificate of the accused which is marked as 19 Spl CC No.75/2019 Ex.P11 and her signature is marked as Ex.P11(a). At the time of examination of the accused, she has collected the articles of the accused. She has identified the accused present before the court. This witness was cross-examined by the learned counsel for the accused. In her cross-examination, she has denied the suggestion that, she has prepared the Report i.e., Ex.P12 as per the request of WPC-17166. She has also further denied the suggestion that, she has prepared the Report ie., Ex.P11 as per the request of PC-17179. She has also further denied the suggestion that, she has not collected any article from the accused.
19. PW10-Venkatalakshmamma is the grandmother of the victim girl and PW11 Venkateshappa is the senior uncle of the Victim girl who are the material witnesses as per the case of the prosecution but not supported through their evidence that, the accused has committed the alleged offences against him. Even they have not identified the accused who was present before the court and further deposed that, they have not given any statement to the Investigating Officer during the course of investigation. Though the Learned Public Prosecutor subjected these witnesses for cross-examination by treating them as hostile but nothing is elicited a single piece of evidence in favour of the prosecution. These witnesses have denied all the suggestions put by the Learned Public Prosecutor to them. They have also denied the suggestion that, they are deposing falsely in order to help the accused. These witnesses were not cross-examined by the learned counsel for the accused.
20 Spl CC No.75/201920. PW12-Mithun, is the owner of the house wherein the accused was residing as a tenant. In his evidence before the court, he has stated that, he knows the accused as the accused was staying in his house as a tenant. He has identified the accused in the accused platform located in the court hall but failed to identify the Victim girl by saying that he did not know her. This evidence is not benefit to the case of the prosecution.
21. Now coming to the evidence of the police witnesses. Out of them, PW13-Thimmarayamma-Woman PC, Bagalagunte police station has deposed before the court that, on 16.11.2018, as per the orders of CW27, she was deputed to trace out the accused and the victim girl of this case. So, she along with Cws- 22 and 23 went at Y Max Junction, Near Abbigere and took information from the public and went near the house of the accused. There the accused and one Shariff were there and the victim girl was also there. Thereafter she brought the victim girl and the accused to the police station and produced them before CW27. The accused is the person who is present before the court. She has given statement in this regard. Thereby, this witness has performed her statutory duty by apprehending the accused and the victim girl . The learned counsel for the accused has cross- examined this witness. In her cross-examination, she has further denied the suggestion that, she has not gone to the spot and she has not taken the custody of the victim girl and the accused. She has further denied the suggestion that, at the instance of CW27, she is deposing falsely in order to trouble the accused.
21 Spl CC No.75/201922. PW14- Mahesh- Head Constable of Bagalagunte police station has deposed before the court that on 10.1.2019 as per the orders of SHO he took the 4 seized articles of this case to FSL, Madiwala, for chemical examination and the FSL have issued Acknowledgement in this regard and accordingly he has given Report. The said Report is marked as Ex.P16 and his signature is marked as Ex.P16(a). Thereby, this witness has performed his statutory duty by handing over the seized articles of this case to FSL, Madiwala, Bangalore for chemical examination. This witness was cross-examined by the learned counsel for the accused. In his cross-examination this witness has stated that, as per the Orders of SHO, they will go out of the station.
23. PW15- Sridevi Chakrasali, Woman PC of Bagalagunte police station has deposed before the court that, on 16.11.2018 as per the orders of CW26, she has taken the victim girl to Sapthagiri Hospital for medical examination. There the victim girl did not agree for medical examination. The victim girl was accompanied by her mother. As the victim girl did not agree for medical examination, she brought back the victim girl to the police station and given Report in this regard. The said Report is marked as Ex.P17 and her signature is marked as Ex.P17(a). Thereby this witness has performed her statutory duty by taking the victim girl of this case for medical examination. The learned counsel for the accused was present in the court hall and submitted that he has no cross-examination of this witness.
22 Spl CC No.75/201924. PW16-Kumar.M., PSI of Bagalagunte police station has deposed before the court that, on 10.11.2018, he received the case file from CW24 and verified it. ON 16.11.2018, he deputed CWS-21, 22 and 16 for tracing out the accused and the victim girl and on the same day, his staff traced out the victim girl and the accused and produced them before him. When he enquired with CW21, CW21 told they traced out the victim girl and the accused from Y Max Junction, Abbigere and brought them. He has taken the victim girl and the accused to his custody and enquired with the victim girl. The victim girl has spoken about the rape committed on her. He has brought all these things to the knowledge of his higher officers. On the same day ie., on 16.11.2018, he sent the victim girl to Sapthagiri Hospital. CW21 has given Report about producing of the accused and the victim girl before him. The Report given by CW21 is marked as PW18 and his signature is marked as Ex.P18(a). Thereafter he handed over the case file to CW27 for further investigation. Thereby this witness has performed his statutory duty by taking up the investigation as preliminary Investigation Officer. This witness has been cross- examined by the learned counsel for the accused. In his cross- examination he has denied the suggestion that, on 16.11.2018, he has not deputed his staff for tracing out the accused and the victim girl. He has also denied the suggestion that, his staff have traced out the victim girl and the accused but they have not produced before him. He has further denied the suggestion that, in order to help the prosecution, he has prepared Ex.P1. He has further denied the suggestion that, in order to help the prosecution, he is deposing falsely in order to trouble the accused.
23 Spl CC No.75/201925. PW17-Shivaswamy.C,V, Police Inspector/ Final Investigation Officer of this case has deposed before the court that, on 16.11.2018 he has received the case file from CW26 and verified it. On the same day, he sent the victim girl for medical examination along with woman police and on the same day, he has recorded the further statement of CW1. On the same day, he has recorded the statements of Cws-7 and 10 and he had deputed CWS-21 and 22 for tracing out the accused and to produce the accused before him. Accordingly Cws-21 and 22 have produced the accused before him and on the same day, he has recorded the voluntary statement of the accused. Further he has deposed that, the accused in his voluntary statement has shown the spot where he had committed rape on the victim girl,, accordingly he [PW17] conducted mahazar as per Ex.P7 and his signature is marked as per Ex.P7(c) and the signature of the accused is marked as Ex.P7(d). The voluntary statement of the accused is marked as Ex.P19 and his signature is marked as Ex.P19(a). On 16.11.2018, he sent the accused to Sapthagiri Hospital for medical examination along with CW20 and after medical examination, he has produced the accused before the court along with Remand application. Further he has deposed that, on 17.11.2018 he has recorded the statements of Cws-12 and 13. On 22.11.2018, he has obtained the Study Certificate of the victim girl. On 24.11.2018, has has obtained the medical report of the victim girl and also obtained the articles from CW14 and subjected them to PF No.169/2018. On the same day, he has obtained the Medical Report of the accused as per Ex.P11 and his signature is marked as 24 Spl CC No.75/2019 Ex.P11(b). on 28.11.2018 has has sent the victim girl along with CW19 before the Magistrate for recording her statement under Sec.164 of CrP.C and on the same day, he has obtained the copy of the said statement. Further he has deposed that, on 14.1.2019, he has sent the articles to FSL and on the same day, by keeping FSL Report pending, he has filed charge-sheet against the accused. He can identify the accused who was present before the court. Thereby, this witness has performed his statutory duty as Final Investigation Officer of this case by filing charge-sheet against the accused. This witness was cross-examined by the learned counsel for the accused. In his cross-examination, he has admitted that, on 16.11.2018, he has received the case file from CW26. But, he has denied the suggestion that, he has not sent the victim girl for medical examination. He has further denied the suggestion that, he has not recorded the statements of Cws-7and 8. He has stated that, on 17.11.2018, he produced the accused before the court. He has denied the suggestion that, he had not deputed his staff for tracing out the accused and his staff had not produced the accused before him and that he has not arrested the accused. He has further denied the suggestion, as he was enquiring about the accused, the accused himself voluntarily appeared before him. He has further denied the suggestion that, he himself has taught the victim girl to depose in the same way before the Magistrate. He has further denied the suggestion that, he with the help of CW1 in order to give trouble to the accused, he has filed false charge-sheet against the accused. He has further denied the suggestion that, the investigation done by him is all false. He has also denied the 25 Spl CC No.75/2019 suggestion that, in order to help the prosecution, he has filed charge-sheet against the accused.
26. As referred to supra, out of 17 witnesses examined by the prosecution before this court, PW1 is the victim girl, PW2 is her father, PW6 is her mother who are the material witnesses to speak to the vital facts of the prosecution case. PWS-13, 16 and 17 are the police officials spoken to the said fact of taking the victim girl and the accused to their custody in the course of investigation and production of the accused before the concerned Judge for taking him into custody besides giving the victim girl to the care of her parents. PW9 is the Doctor but the victim girl did not agree to subject herself to the genital examination, therefore the Report of the Doctor is not helpful to prove the alleged intervention in the private life of the victim girl . The other witnesses are the witnesses to the Mahazar and spoken to some other circumstantial facts which do not call for detail analysis. With the above narrations of the prosecution witnesses this court shall have to find out whether the prosecution has proved the guilt of the accused as per the charges he is facing.
27. On perusal of the evidence of PW1/ victim girl who in her chief examination has only stated that this accused was known to her and he was in talking terms with her and stated that he did not misbehaved with her nor troubled her family members and stated that without informing her mother, she had gone to her friend's house but stated that the police had brought her and the accused from Koppal, where they were staying in the house of one 26 Spl CC No.75/2019 Hullesh, the friend of the accused and categorically sates that the police had brought them to their police station and that the police had secured her parents to the police station and in the cross-examination by the learned Public Prosecutor she has further reiterated admitting that the police after coming to know that herself and the accused were being together were brought to Bangalore and her parents were also secured to the police station. Except this , the victim girl has not whispered anything regarding the accused in any way having had committed any other criminal acts as complained and as charged.
28. PWs-2 and 6 who are the parents of the victim girl/PW1 have also in their evidence before the court denied this accused having had enticed PW1 but they have admitted in having had given a complaint to the police that she [PW1] was missing. PW2 admitted to had given Complaint as per Ex.P4. Again the parents of the victim girl have in the witness box admitted the police had informed them having had brought the victim girl to the police station and they went to the police station , saw their daughter and also the accused in the police station. PW2 further in the cross-examination by the learned Public Prosecutor stated in this PW1 having had told them in that police having had brought her along with the accused to the police station. Similar is the evidence of PW6.
29. In the evidence of these two witnesses also I do not find any supporting evidence to speak about any other criminal acts of the accused against PW1/ victim girl. With this, I have the 27 Spl CC No.75/2019 evidence on record that is the evidence of PW13 who is a Woman PC stated that on 16.11.2018, PW16 had deputed her and another to trace out the accused and the victim girl and they were when on duty at Abbigere in search of the house of the accused, there they saw the victim girl and the accused were there along with a friend of the accused and stated to had brought the victim girl and the accused and produced before PW16. PW16 has deposed in corroboration with the evidence of PW13 in that witness having had brought the victim girl and the accused and produced before him who has also stated to had taken the accused to his custody and recording the statement of the victim girl who has further stated to have had handed over the case papers for further investigation to PW17. PW17 being the Investigation Officer has also stated in his evidence in that PW16 producing the accused before him deposed to had recorded the voluntary statement of the accused and produced the accused before the concerned court who was subjected to the judicial custody. In this way, when I go through the evidence of PWS-1, 2, 6, 13, 16 and 17 which unerringly and corroboratively prove that, the victim girl was in the company of the accused and that they were brought together to the police station and they were then dealt with in accordance with the procedure subjecting the accused to the judicial remand. The learned counsel for the accused has not at all chosen to cross-examine PW1 and stated as if he has no cross-examination. In the cross-examination of PW2, except suggesting PW2 that the accused has not troubled PW1, has not at all questioned PW2 in he having had seen the accused in the custody of the police and in the presence of the victim girl. In the cross-examination of PW6, except the 28 Spl CC No.75/2019 suggesting that PW6 except saying that she has seen the accused in the court on the date of her examination and she had not seen him earlier and the answer of the victim girl in the Affirmative, no other evidence is elicited.
30. Coming to the cross-examination of Pws-13, 16 and 17, no earnest effort in my view is made to contradict them in they having had taken the accused to their custody along with the victim girl/PW1 and having had brought them to the police station and the other follow-up actions taken, except suggesting that, whatever Pws-13, 16 and 17 have deposed as false, nothing concrete contradictions are elicited to impeach them.
31. No doubt there is some inconsistency with regard to the place from where the victim girl and the accused were secured, I find no other materials to support the version of PWs-13, 16 and 17. No doubt, PW1/ victim girl has stated as if herself and the accused were brought from Koppal to Bangalore but, Pws-13 and 16 have stated as if they had found the victim girl and the accused together in the house of the accused at Abbigee, Bangalore. But, in fact that both of them [victim girl and the accused] were found together since has not been impeached the above mentioned discrepancy is of not such a vital contradiction to discard the prosecution case. The case of the prosecution that the victim girl that on the date of her missing and tracing her with the accused she was about 16 years it not at all in dispute, therefore, the unblemished evidence of PWS-1, 2, 6, 13, 16 and 17 unhestatingly points finger to the accused in he having had taken 29 Spl CC No.75/2019 the victim girl who was a minor from the custody of her parents along with him and that they were finally secured by the police, proves the guilt of the accused for the offence punishable under Sec.363 of IPC. But the prosecution since has not adduced any other legal and incriminating evidence against the accused to prove other charges, the accused is entitled for acquittal of those charges.
32. This court has, based on the material facts placed before it had framed Charges against the accused for the offences punishable under Sec.366 of IPC and under Sec.376 of IPC and for the offence as defined under Sec. 5(l) punishable under Sec. 6 of POCSO Act, 2012 , but the prosecution has not produced the ingredients against the accused for the offence punishable under Sec.366 of IPC and the accused since having been charged for major offence punishable under Sec.366 of IPC, can convict him for a minor offence punishable under Sec.363 of IPC without altering the Charge. As such, I answer Point No.1 in the Affirmative holding that the accused is held guilty of the offence punishable under Sec.363 of IPC only, instead of Sec.366 of IPC and I answer Point No.2 in the Negative.
33. POINT NO.3:-:- In view of my findings on the above Points, I proceed to pass the following:
30 Spl CC No.75/2019ORDER Acting under Sec.235(2) of Cr.P.C, I hereby convict the accused for the offence punishable under Sec.363 of IPC.
Acting under Sec.235(1) of Cr.P.C, I hereby acquit the accused for the offences punishable under Sec.376 of IPC and for the offence as defined under Sec.5(l) punishable under Sec.6 of POCSO Act, 2012.
[Dictated to the Stenographer directly on the computer, corrected carried out and then pronounced by me in the open court on this the 9 th day of September, 2019] [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.31 Spl CC No.75/2019
18.9.2019 ORDER ON SENTENCE The accused and his counsel are present. Heard on sentence to be imposed on the accused. The counsel for the accused submitted arguments on behalf of the accused stating that the accused is the only son of his parents, only earning member of his family on whom the parents are depending and the accused is still in his youth being aged about 23 years he has already spent his life as UTP for more than 8 months thereby has prayed for leniency in awarding the sentence. Further the Learned counsel for the accused has relied upon a decision of Delhi High Court rendered in Criminal Appeal No. 389/2013 held between Sheela Vs. State of Delhi.
Considering the submissions made by the Learned counsel for the accused that the offence for which the accused was charged, as the accused had no intention of committing sexual assault on the Victim girl, I find imposing sentence of 11 Months and fine of Rs.5,000/- would meet the ends of justice.
Coming to the question of compensation awarding to the Victim girl in this case, in my view do not appears to be justified for the reason that the Victim girl and her parents have not supported the prosecution case fully and found to have colluded with the accused. With this I pass the following 32 Spl CC No.75/2019 ORDER I hereby sentence the accused to undergo Simple Imprisonment for a period of 11 Months and he shall also pay a fine of Rs.5,000/- for the offence punishable under Sec.363 of IPC. In default of payment of fine amount, the accused shall undergo further simple imprisonment for a period of 3 Months.
Acting under Sec.428 of Cr.P.C, the period undergone by the accused shall be set-off against the period undergone by the accused in the judicial custody.
Copy of this Judgement shall be given to the accused forthwith free of costs.
[Dictated to the Stenographer directly on the computer, corrected carried out and then pronounced by me in the open court on this the 18 th day of September, 2019] [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
ANNEXURES:
Witnesses examined for the prosecution:
PW.1 Victim girl CW2 25.2.2019 PW.2 Narasimha Murthy CW1 28.3.2019 PW.3 Kumar CW3 8.4.2019 33 Spl CC No.75/2019 PW.4 Kumar CW6 8.4.2019 PW.5 Venkatesh CW5 8.4.2019 PW.6 Mohanakumari CW7 8.4.2019 PW.7 Lathamani CW8 12.4.2019 PW.8 Mangalamma CW9 12.4.2019 PW.9 Dr.Sujatha CW14 1.6.2019 PW.10 Venkatalakshamma CW10 1.6.2019 PW.11 Venkateshappa CW11 1.6.2019 PW.12 Mithun CW13 1.6.2019 Pw.13 Thimarayamma CW17 14.6.2019 PW.14 Mahesh CW23 26.6.2019 PW.15 Sridevi Chaktrasali CW18 26.6.2019 PW.16 Kumar.M CW26 11.7.2019 PW.17 Shivaswamy.C.V CW27 3.8.2019 Documents marked for the prosecution: Ex.P1 Statement of the victim girl /PW1 given before the complainant police under Sec.161 of Cr.P.C Ex.P1(a) Signature of the victim girl/PW1 Ex.P1(b) Signature of PW16 Ex.P2 Statement of the victim girl /PW1 given before the Magistrate under Sec.164 of Cr.P.C Ex.P2(a) Signature of the victim girl/PW1 Ex.P2(b) Signature of PW17 Ex.P3 Consent for Examination of the victim girl/PW1 Ex.P3(a) Signature of the victim girl/PW1 Ex.P3(b) Signature of PW9 Ex.P4 Complaint dated: 10.11.2018 lodged by the complainant /PW2/father of the victim girl Ex.P4(a) Signature of PW2 Ex.P5 Statement of PW2 given before the complainant police under Sec.161 of Cr.P.C Ex.P5(a) Signature of PW2 Ex.P6 Panchanama Ex.P6(a) Signature of PW2 Ex.P6(b) Signature of PW3 Ex.P7 Spot Panchanama of the incident Ex.P7(a) Signature of PW4 34 Spl CC No.75/2019 Ex.P7(b) Signature of PW5 Ex.P7(c) Signature of PW17 Ex.P8 Statement of PW6 given before the complainant police under Sec.161 of Cr.P.C Ex.P9 Statement of PW7 given before the complainant police under Sec.161 of Cr.P.C Ex.P10 Statement of PW8 given before the complainant police under Sec.161 of Cr.P.C Ex.P11 Medical Report of the accused [consent marked] Ex.P11(a) Signature of PW9 Ex.P11(b) Signature of PW11 Ex.P12 Examination of Victim for evidence of Sexual Intercourse Ex.P12(a) Signature of PW9 Ex.P13 Statement of PW10 given before the complainant police under Sec.161 of Cr.P.C Ex.P14 Statement of PW11 given before the complainant police under Sec.161 of Cr.P.C Ex.P15 Study Certificate issued by the Principal, Government PU College, Peenya, Bangalore wherein the victim girl/PW1 was studying certifying the date of birth of the victim girl/PW1 as 23.5.2002 [consent marked] Ex.P16 Report given by PW14 to the Police Inspector of the complainant police station regarding
handing over the articles of the accused to the FSL, Madiwala, Bangalore for chemical examination Ex.P16(a) Signature of PW14 Ex.P17 Report given by PW 15 to the PSI of the complainant police station regarding taking the victim girl to the medical examination to Sapthagiri Hospital and bringing her back and producing the victim girl before the PSI of the complainant police station Ex.P17(a) Signature of PW15 35 Spl CC No.75/2019 Ex.P18 Report given by CW22/Eshwar.K. Barki Head Constable regarding apprehending the accused and the victim girl of this case and producing them before the PSI of the complainant police station Ex.P18(a) Signature of PW16 Ex.P19 Voluntary statement of the accused Ex.P19(a) Signature of PW17 Ex.P20 Acknowledgement given by FSL, Madiwala, Bangalore for having received the sealed articles of this case Ex.P20(a) Signature of PW17 Ex.P21 FSL Report [consent marked] Witness examined, documents, marked for the accused: NIL [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.36 Spl CC No.75/2019
9.9.2019 Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(2) of Cr.P.C, I hereby convict the accused for the offence punishable under Sec.363 of IPC.
Acting under Sec.235(1) of Cr.P.C, I hereby acquit the accused for the offences punishable under Sec.376 of IPC and for the offence as defined under Sec.5(l) punishable under Sec.6 of POCSO Act, 2012.
[R.SHARADA]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.37 Spl CC No.75/2019
18.9.2019 Sentence pronounced in open court:
[ Vide separate detailed Sentence ] I hereby sentence the accused to undergo Simple Imprisonment for a period of 11 Months and he shall also pay a fine of Rs.5,000/- for the offence punishable under Sec.363 of IPC. In default of payment of fine amount, the accused shall undergo further simple imprisonment for a period of 3 Months.
Acting under Sec.428 of Cr.P.C, the period undergone by the accused shall be set-off against the period undergone by the accused in the judicial custody.
Copy of this Judgement shall be given to the accused forthwith free of costs.
[R.SHARADA]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
38 Spl CC No.75/2019