Bangalore District Court
State By K.R.Pura Police vs Christian Chidiebere Chukwu on 25 April, 2017
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH-55)
Dated this the 25th day of April, 2017.
Present: SMT.RAJESHWARI.N.HEGDE.,
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
S.C.NO.173/2016
COMPLAINANT State by K.R.Pura Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Christian Chidiebere Chukwu,
Son of Silvernus,
Aged 28 years,
No.22, C/o.Mohamad Yakub,
3rd Cross, Ashirvad Layout,
Maragondahanahalli Main Road,
T.C.Palya, KR Pura,
Bangalore.
Native Address:
Plot No.913, 6th Avenue, Festac Town,
Lagos State, Nigeria.
(By Sri.Mohammed Chand Pasha-
Advocate)
2 SC No.173/2016
1. Date of commission of offence On 23.9.2015 and 1.10.2015
2. Date of report of occurrence 1.10.2015
3. Date of arrest of the accused 2.10.2015
4. Date of release of the accused Accused has been in judicial
custody from 2.10.2015 till
25.4.2017 i.e, for a period of
1 ½ years [18 Months]
5. Date of commencement of 27.1.2017
evidence
6. Date of closing of evidence 21.4.2017
7. Name of the complainant Victim woman
8. Offences complained of Secs.376 and 506 of IPC and
under Sec.14 of Foreigners Act
9. Opinion of the Judge In exercise with the powers
conferred upon me under
Criminal Procedure Code,
the accused is convicted
for the offence punishable
under Sec.14 of Foreigners
Act and the accused is
acquitted of the offences
punishable under Secs.376
and 506 of IPC.
3 SC No.173/2016
JUDGMENT
Charge-sheeted by K.R.Puram police, in Crime No.602/2015 and committed by the X ACMM, Bengaluru City, the accused is before this Court facing trial for the offences punishable under Secs.376 and 506 of IPC and under Sec.14 of Foreigners Act.
2. Prosecution case in brief is that:
The complainant/Victim woman lodged a complaint alleging the sexual assault made by the accused on her on the dates of 23.9.2015 and 1.10.2015 on the pretext of marrying her.
3. On the basis of the said complaint, the complainant police have registered a case in Cr.No.602/2015 [CC No.50190/2016] and criminal law was set in motion. The Investigating Agency commenced the investigation. The police sent the victim for medical examination, that on 2.10.2015 the accused was arrested and his voluntary statement was recorded and he was also sent for medical examination, spot mahazar conducted in the place where the alleged incident had taken place and after completion of the investigation formalities, charge-sheet has been filed.
4. The accused is in judicial custody since the date of his arrest i.e., on 2.10.2015. He is represented by Counsel of his choice. After production of the accused, the copies of the 4 SC No.173/2016 prosecution papers [charge-sheet] were given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5. After hearing learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in-office has framed the Charge on 11.4.2016 for the offences punishable under Secs.376 and 506 of IPC and under Sec.14 of Foreingers Act and read over to the accused in the language known to him i.e., in English Language. The accused pleaded not guilty and claimed trial.
6. The prosecution in order to bring home the guilt of the accused examined in all 5 witnesses as PWs-1 to 5, out of the total 17 witnesses as shown in charge-sheet and got marked 8 documents as per Exs.P1 to P8 and no Material Objects marked.
7. At this stage, it is necessary to mention that, the prosecution has examined 5 witnesses out of 17 witnesses. CW2, CW3, CW7, CW8 and CW10 to CW17 were not examined by the prosecution. CW2 and CW3- witnesses to the Spot Mahazar-Ex.P2, CW7-Doctor who issued Age Estimation certificate of the complainant, CW8-Doctor who examined the complainant and given Provisional Report and MLC Book, CW10-HG881 who collected the articles seized in PF No.98/2015 from the Medical Officer, CW11-WPC who took the complainant to the medical examination, CW12-PC- who took the accused to medical examination, CW13-WHG who took the complainant to the hospital for examination of her age, CW14-PC-who took the seized 5 SC No.173/2016 articles to FSL, Mysore, CW15-HC- who apprehended the accused, CW16- ASI- who received the Memo from CW6 and CW17-Police Inspector who filed charge-sheet after completion of investigation formalities, were not examined by the prosecution. On perusal of the order sheet it discloses that, inspite of issue of summons and warrants to CW2, CW3, CW7, CW8 and CW10 to CW17, they did not turn up. Moreover, the Victim woman and other material witnesses turned hostile and further as per the order of the Hon'ble High Court of Karnataka passed in Cr.P. 7904/2015 dated: 18.2.2016, there is a direction to dispose-off this case, without undue delay. Therefore, considering all these aspects, the prayer made by learned Public Prosecutor for reissue of summons to CW2, CW3, CW7, CW8 and CW10 to CW17 is rejected and CW2, CW3, CW7, CW8 and CW10 to CW17 are dropped vide Order dated: 21.4.2017.
8. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C was recorded. The accused denied the incriminating evidence found in the evidence of prosecution witnesses. His defence is that of total denial of his involvement in the alleged incident. However, he did not chose to lead any evidence in support of his defence. .
9. Heard learned Public Prosecutor and learned counsel for the accused. Perused the records.
10. After hearing the arguments of learned Public Prosecutor and the learned defence counsel and as per the Charge leveled 6 SC No.173/2016 against this accused, the following Points do arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that the accused on the pretext of marrying the Victim woman, had sexual intercourse with her on 23.9.2015 and on 1.10.2015 and thereby the accused committed an offence punishable under Sec.376 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that the accused gave threat to her [Victim woman] life that if she were to disclose the act of rape to anybody, thus, committed criminal intimidation with an intention to cause alarm to her to do an act which she is not legally bound to do in order to avoid execution of such threat and thereby the accused has committed an offence punishable under Sec.506 of IPC?
3. Whether the prosecution further proves beyond reasonable doubt that the accused being a citizen of Nigeria country, continued to stay in India illegally even after expiry of visa, and thereby the accused has committed an offence punishable under Sec.14 of Foreigners Act?
4. What Order?
11. 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 Affirmative Point No.4: As per the final order for the following 7 SC No.173/2016 REASONS
12. POINT NOS. 1 AND 2: Consideration of these Two Points are based on the same facts and evidence and therefore, to avoid repetition, these Two points are taken up together for discussion.
13. According to the prosecution, the accused being the citizen of Nigeria country, remained in India illegally and resided in building No.22, 1st Block, House No.003, 3rd Cross, Maragondanahalli Main Road, TC Palya, Bangalore, and that on 23.9.2015 at about 11 A.M., when CW1 and CW5 came to the house of the accused, the accused introduced himself to the Victim woman [CW1] and thereafter called her to his room by saying that, he wants to talk to her and when she entered the room, the accused raped her forcibly without her consent by closing the door of the room and thereafter again on 1.10.2015, again the accused called the Victim woman to his house by apologizing about the act of rape and induced her that his parents had come and he wants to marry her and on that day, at 10 A.M., the accused made the Victim woman to come to his house and put a ring into the finger of the Victim woman by saying that it is a marriage ring and again raped her forcibly without her consent by saying that the accused is her husband and also threatened her with dire consequences, if she were to disclose the said act to anyone. Hence, the accused has committed the offences as per the charge leveled against him.
8 SC No.173/201614. The initial burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution has relied upon the evidences of PWs-1 to 5. The particulars of the witnesses examined by the prosecution are as under:
Pw.1 Victim woman
Pw.2 Shirin Rose- deposes about the incident
Pw.3 Dr.Anand deposes about the medical examination
conducted on the Victim woman
Pw.4 Mohammed Yakub- owner of the house wherein the
accused stayed on the dates of the alleged incident Pw.5 Dr.B.M.Nagaraj deposes about the medical examination conducted on the accused.
15. Before appreciating the evidence, it is better to have a glance of the evidence given by all witnesses of the prosecution.
16. PW1- Victim woman/complainant deposes that, in the year 2015, she was going for a job at Ramamurthy Nagar, Bengaluru and the accused herein was following her and telling her that he is loving her. She refused his offer. Inspite of it, the accused used to follow her and her uncle asked her to lodge the complaint to the Police Station and accordingly she lodged the complaint as per Ex.P1 before the complainant police. She further deposed that, the accused herein did not commit rape on her nor threatened her. After she lodged the complaint, the complainant police sent her for medical examination. The complainant police took her signature on a document 9 SC No.173/2016 Ex.P2. [Spot Mahazar]. She further deposes that, the complainant police did not record her further Statement. Learned Public Prosecutor treated this witness as hostile witness for the reason that, she did not support the case of the prosecution and she retracted from her earlier statement made in the Complaint and her further Statement-Ex.P3. Though she was cross-examined, by learned Public Prosecutor, during the course of cross-examination, nothing worth elicited from her to support the prosecution case with regard to the alleged incident.
17. PW2- Shirin Rose said to be the witness who suppose to depose about the alleged incident, but, she has also not supported the case of the prosecution saying that, she did not know the alleged rape committed by the accused herein on the victim. She was cross-examined by learned Public Prosecutor. But, nothing worth elicited to support the case of the prosecution. Her Statement before the complainant police marked as Ex.P4.
18. PW3-Dr.Anand, deposes to the effect that, on 28.9.2015, the Victim woman came for medical examination [brought by Balu] with the history of alleged rape on her on the date of 23.9.2015. The Victim woman was referred to Gynecologist and then the Medical officer sent Intimation as per Ex.P5 to K.R Puram police, as it was the case of rape and Outpatient card marked as Ex.P6.
19. PW4- Mohammed Yakub, owner of the house wherein the accused was staying and the alleged rape said to have been committed on the Victim woman. He deposes that, he did not give 10 SC No.173/2016 his house to the accused herein, for rent. On the other hand, he deposes that, he let out the house to one Alex who is not the present accused. He had been to KR Puram Police Station wherein the police shown a person who is the accused herein, but, PW4 denied that, he did not let out the house to the accused. Therefore, learned Public Prosecutor treated this witness as hostile to the prosecution case and cross-examined him. Though he was cross-examined, nothing worth elicited from him to support the version of the prosecution that, he let out his house to the accused wherein the accused has committed rape on the Victim woman. His 161 Statement before the complainant police marked as Ex.P7.
20. PW5-Dr.B.M.Nagaraj deposes that, on 2.10.2015, the accused was brought by K.R. Pura police and he examined the accused and issued Medical Certificate as per Ex.P8 and as per the medical examination of the accused, he opined that, the accused was not incapable of performing an act suggestive of sexual intercourse.
21. On the basis of the aforesaid evidence of the Prosecution witnesses, learned Public Prosecutor submitted his arguments. He argued that, the accused who belong to African Country, residing in India though, his visa was expired and he committed rape on the Victim woman and thereby he may be convicted.
22. On the other hand, learned defence Counsel argued that, in so far as charge of rape and criminal force punishable under Secs.376 and 506 of IPC is concerned, absolutely, the 11 SC No.173/2016 prosecution has not placed any evidence to prove the guilt of the accused. He submitted that, the complainant/Victim woman turned hostile to the case of the prosecution and therefore, her evidence cannot be accepted, to prove the guilt of the accused. Apart from the evidence of PW1-complainant, though the prosecution examined PW2 who is said to be the witness to the alleged incident, she also not supported the case of the prosecution. Though the Doctor-PW3 deposes about the Victim woman came to the hospital and gave the history of alleged rape on her, stating that, one Cristine has committed rape on her as per Ex.P6, as the Victim woman came to the court and on oath deposed that, the accused herein did not commit rape on her, and therefore, the evidence of Doctor-PW3 and Ex.P5 and Ex.P6 are of no use to prove the guilt of the accused. Further according to prosecution, the alleged rape said to have been committed in the house of PW4. But, PW4 did not support the prosecution version and therefore, his evidence also cannot be relied upon. PW5-Doctor who examined the accused and given Medical report stating that, the accused is not incapable of performing sexual act, on the basis of the Doctor-PW5, it cannot be said that, the accused has committed rape on the Victim woman. Therefore, the learned defence Counsel argued that, the evidence of PWs-1 to 5 in so far as alleged rape and threat is concerned, cannot be relied upon and thereby, the accused is entitle to an order of acquittal.
23. On going through the evidence of PW1-Victim woman, PW2 said to be the witness to the alleged incident and PW4 said to be the owner of the house wherein the alleged rape said to have 12 SC No.173/2016 committed by the accused on the Victim woman, were completely turned hostile to the prosecution case and though PW3 and PW5-Doctors deposes about the medical examination, only on the basis of their evidence, conviction cannot be based. Therefore, absolutely there are no evidence available to prove the guilt of the accused that, he has committed the offence punishable under Secs. 376 and 506 of IPC and therefore, the accused is entitle to an acquittal of the offences punishable under Secs. 376 and 506 of IPC. Accordingly, I answer POINTS-1 AND 2 IN THE NEGATIVE.
24. POINT NO.3:- As per the prosecution, the accused being the citizen of African country, came to India and he has been illegally residing in India, even after expiry of visa period. On behalf of the accused, learned defence Counsel filed Memo vide dated: 21.4.2017 stating that, the visa issued to the accused on 28.2.2013 expired on 13.4.2013. Thereby, from 13.4.2013 till the date of his remand to judicial custody [in the present case] on 2.10.2015, he was illegally residing in India even after expiry of visa. Therefore, the accused has committed the offence punishable under Sec.14 of Foreigners Act and hence he [accused] is liable for conviction for the said offence. Accordingly I answer POINT NO.3 IN THE AFFIRMATIVE.
25. POINT NO.4: In view of my aforesaid discussions, I proceed to pass the following :
13 SC No.173/2016ORDER In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is convicted for the offence punishable under Sec.14 of Foreigners Act and the accused is acquitted of the offences punishable under Secs.376 and 506 of IPC.
Heard regarding the quantum of sentence as against the offence punishable under Sec.14 of the Foreigners Act. The accused submitted that, he came to India as a student, but, he has been implicated in the present incident, he is a very poor person, he is Nigeria citizen and his parents are aged and ailing and he has to go back to his country and therefore prays for taking lenient view in imposing the sentence.
I have gone through the provisions of Sec.14 of the Foreigners Act, 1946. Sec.14 of the Act provides penalty for contravention of provisions of the Act, etc.- Whoever-
(a)remains in any area in India for a period exceeding the period for which the visa was issued to him;
(b) does any act in violation of the conditions of the valid visa issued to him for his entry and stay in India or any part thereunder;
(c) contravenes the provisions of this Act or of any order made thereunder or any direction given in pursuance of this Act or such order for which, no specific punishment is provided under this Act, shall be punished with imprisonment for a term which may extend to 5 years and shall also be liable to fine.14 SC No.173/2016
Therefore, there is a discretion given to the court in imposing the punishment.
Looking into the background of the accused and he has been in judicial custody since 2.10.2015, having no avocation and earnings, he being a student, he has to return to his native place- Nigeria country, considering all these aspects, lenient view is taken in imposing the sentence. Accordingly, this court proceeds to pass the following :
SENTENCE The accused is sentenced to undergo simple imprisonment for the days for which he has been detained in judicial custody during the trial period, which is almost 1 ½ Year [18 Months] and shall liable to pay fine of Rs.10,000/-, for the offence punishable under Sec.14 of Foreigners Act. If the accused fails to pay the said sum of Rs.10,000/-, then, he shall undergo simple imprisonment for a further period of 6 Months.
The accused has been in judicial custody since the date of his arrest on 2.10.2015. He is set at liberty for the offences punishable under Secs.376 and 506 of IPC. However, as he has been convicted for the offence punishable under Sec.14 of Foreigners Act, he shall remain in judicial custody till payment of fine amount, after he paid the fine amount, he is set at liberty.
Further, as per the provisions of Sec.437(A) of Cr.P.C., the accused shall execute bail bonds with sureties, to appear before the Higher court, as and when such court issues notice in respect 15 SC No.173/2016 of any appeal or petition filed against the judgment and such bail bonds shall be in force for 6 months.
The accused prays this court that, he is not in a position to furnish surety in person and he is ready to furnish cash security of Rs.5,000/- towards surety. Having regard to the position of the accused, because he is a non-resident of India, this court has considered his request to furnish cash security.
As the accused is convicted for the offence punishable under Sec.14 of Foreigners Act, and now, the accused has submitted that, he will return to his country, an order has to be made for deportation of the accused. Therefore, the complainant police is directed to take requisite steps to deport the accused from India to his country- Nigeria. Further the complainant police is directed to return the Passport to the accused and submit the compliance report after deportation of the accused.
The copies of the orders shall be sent to:
(1) The Foreigners Regional Registration Officer, Bangalore and Commissioner of Police, Infantry Road, Bangalore.
(2) The Immigration Officer, International Airport, Devanahalli, Bangalore.
(3) The SHO, K.R.Puram Police Station, Bangalore for necessary action.16 SC No.173/2016
Unless and until, the compliance of due procedure, regarding deportation of the accused, the Jail Authorities are directed not to release the accused from the judicial custody and further the complainant police is directed to escort the accused from the judicial custody and to produce before The Foreigners Regional Registration Officer, Bangalore and Commissioner of Police, Infantry Road, Bangalore, for taking steps towards deportation of the accused.
In so far as victim compensation is concerned, she being a major woman, and she completely turned hostile to the prosecution case, therefore, the victim is not entitled for any compensation.
Office is directed to furnish free copy of this Judgement to the accused forthwith.
(Dictated to the Stenographer directly on the computer, corrections carried out and then pronounced by me in the Open Court on this the 25th day of April, 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Victim woman CW1 27.1.2017 17 SC No.173/2016 Pw.2 Shirin Rose CW5 27.1.2017 Pw.3 Dr.Anand CW6 14.2.2017 Pw.4 Mohammed Yakub CW4 14.2.2017 Pw.5 Dr.B.M.Nagaraj CW9 21.4.2017 Documents marked for the prosecution: Ex.P1 Complaint dated: 1.10.2015 Ex.P1(a) Signature of Pw.1 Ex.P2 Spot Mahazar Ex.P2(a) Signature of PW1 Ex.P3 Further statement of PW1 Ex.P4 Statement of PW2 under Sec.161 of Cr.P.C given before the complainant police Ex.P5 Intimation given by PW3 to the complainant police regarding rape of the Victim woman Ex.P5(a) Signature of PW5 Ex.P6 Outpatient card of the Victim woman Ex.P7 Statement of PW4 under Sec.161 of Cr.P.C given before the complainant police Ex.P8 Medical Report of the accused Ex.P8(a) Signature of Pw.5
Witness examined and documents marked for the accused : NIL LIV Addl., City Civil & Sessions Judge, Bangalore.
18 SC No.173/201625.4.2017 In this case, today the accused not produced from Judicial custody. Counsel for the accused is present in the open court. The pronouncement of Judgement is conveyed to the accused through V.C and the accused was heard regarding the quantum of sentence.
In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is convicted for the offence punishable under Sec.14 of Foreigners Act and the accused is acquitted of the offences punishable under Secs.376 and 506 of IPC.
ORDER REGARDING SENTENCE The accused is sentenced to undergo simple imprisonment for the days for which he has been detained in judicial custody during the trial period, which is almost 1 ½ Year [18 Months] and shall liable to pay fine of Rs.10,000/-, for the offence punishable under Sec.14 of Foreigners Act. If the accused fails to pay the said sum of Rs.10,000/-, then, he shall undergo simple imprisonment for a further period of 6 Months.
The accused has been in judicial custody since the date of his arrest on 2.10.2015. He is set at liberty for the offences punishable under Secs.376 and 506 of IPC. However, as he has been convicted for the offence punishable under Sec.14 of Foreigners Act, he shall remain in judicial custody till payment of fine amount, after he paid the fine amount, he is set at liberty.
19 SC No.173/2016Further, as per the provisions of Sec.437(A) of Cr.P.C., the accused shall execute bail bonds with sureties, to appear before the Higher court, as and when such court issues notice in respect of any appeal or petition filed against the judgment and such bail bonds shall be in force for 6 months.
The accused prays this court that, he is not in a position to furnish surety in person and he is ready to furnish cash security of Rs.5,000/- towards surety.
Having regard to the position of the accused, because he is a non-resident of India, this court has considered his request to furnish cash security.
As the accused is convicted for the offence punishable under Sec.14 of Foreigners Act, and now, the accused has submitted that, he will return to his country, an order has to be made for deportation of the accused. Therefore, the complainant police is directed to take requisite steps to deport the accused from India to his country-Nigeria. Further the complainant police is directed to return the Passport to the accused and submit the compliance report after deportation of the accused.
The copies of the orders shall be sent to:
(1) The Foreigners Regional Registration Officer, Bangalore and Commissioner of Police, Infantry Road, Bangalore.20 SC No.173/2016
(2) The Immigration Officer, International Airport, Devanahalli, Bangalore.
(3) The SHO, K.R.Puram Police Station, Bangalore for necessary action.
Unless and until, the compliance of due procedure, regarding deportation of the accused, the Jail Authorities are directed not to release the accused from the judicial custody and further the complainant police is directed to escort the accused from the judicial custody and to produce before The Foreigners Regional Registration Officer, Bangalore and Commissioner of Police, Infantry Road, Bangalore, for taking steps towards deportation of the accused.
In so far as victim compensation is concerned, she being a major woman, and she completely turned hostile to the prosecution case, therefore, the victim is not entitled for any compensation.
Office is directed to furnish free copy of this Judgement to the accused forthwith.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
21 SC No.173/2016 22 SC No.173/2016