Bangalore District Court
State By Hulimavu Police vs Siddalingappa.S.C on 30 April, 2018
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the 26th day of April, 2018.
Present: SMT.YADAV VANAMALA ANANDRAO., B.Com. LL.B.[Spl.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO.383/2015
COMPLAINANT: State by Hulimavu Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Siddalingappa.S.C,
Son of Late. Sampangappa
Aged 48 years,
Residing at: House No.53,
Kembathahalli Grama, Gottigere Post,
Bangalore South Taluk,
Bangalore District.
[By Advocate Sri.M.Siddaiah]
1. Date of commission of offence 8.1.2015
2. Date of report of occurrence of 9.1.2015
the offence
3. Date of arrest of accused 09.01.2015
4. Date of release of accused [bail] 22.11.2016
5. Period undergone in custody by 1 year, 10 months , 13 days
the accused
2 Spl CC No.383/2015
6. Date of commencement of 22.3.2016
evidence
7. Date of closing of evidence 24.3.2018
8. Name of the complainant Victim girl
9. Offences complained of Sec. 354(A) of IPC and under
Sec.7 r/w Sec.8 of POCSO Act,
2012
10. Opinion of the Judge The accused is convicted and
sentenced.
JUDGEMENT
The Police Inspector, Hulimavu police station has filed charge-sheet against the accused for the offences punishable under Sec.354(A) of IPC and under Sec.8 of POCSO Act, 2012.
2. Gist of the prosecution case is that:
The accused, on 8.1.2015 at about 8.30 P.M., in his office situated at Survey No.1, Pillaganahalli, Hulimavu, Bangalore, with an intention to outrage the modesty of the victim girl/CW1 who was aged about 16 years, sent his [accused] mother to Muneshwara temple to lit the lamp and when his mother went out of the house, the accused [who is the younger brother of the victim girl's father i.e, uncle] induced her [victim girl] that he will perform her marriage during Mahadeshwara Jatra to be held on 28th of January, 2015 and asked her to co-operate with him for sex, by saying that, he would give Rs.10,000/- to her and told her to remove her clothes and when the victim girl/CW1 refused to do the same, the accused squeezed her breast, thereby had physical 3 Spl CC No.383/2015 contact with her and advances involving unwelcome and explicit sexual overtures and demanded for sexual favours, thereby the accused committed sexual assault on the victim girl/CW1. On the basis of the complaint lodged by the complainant/victim girl herself, a case in Cr.No.27/2015, came to be registered against the accused for the offences punishable under Sec.354(A) of IPC and under Sec.8 of POCSO Act, 2012. During he course of investigation, the Investigating Officer proceeded with the investigation and arrested the accused and subjected him to the judicial custody. After collecting the materials, the Investigating Officer has filed charge-sheet against the accused. Cognizance was taken. The accused was granted with bail.
3. Initially this case was made over to this court CCH:55. As per the Notification, No. ADM-I (A)/ 614/2017, of the Office of the city Civil Court, Bengaluru, dated:4.8.2017 with effect from the afternoon of 5.8.2017, now, the case is before this Child Friendly Court, Bengaluru Urban District, for disposal.
4. The accused was granted with bail. He is represented by the counsel of his choice. After appearance of the accused, the copies of the prosecution papers [charge-sheet] was furnished to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5. After hearing the learned Public Prosecutor and the learned counsel for the accused, this court has framed the Charges on 5.10.2015 and read over to the accused in the 4 Spl CC No.383/2015 language known to him. The accused pleaded not guilty and claimed the trial.
6. To prove the case, the prosecution has examined PWs-1 to 11 witnesses and placed reliance on Exs.P1 to P9 documents and two NCRs as Exs.C1 and C2 one Material object i..e, CD is marked as MO-1. After completion of the evidence of the prosecution witnesses, statement of the accused under Sec.313 of Cr.P.C was recorded. The accused has denied the incriminating evidence available against him, but, he has not chosen to adduce defence evidence on his behalf.
7. Heard the arguments of the learned Public Prosecutor and the learned counsel for the accused. Perused the oral and documentary evidence and the record on hand. Following Points are formulated for consideration:
1. Whether the prosecution has proved beyond all reasonable doubt, the accused on 8.1.2015 at about
8.30 P.M., in his office situated at Survey No.1, Pillaganahalli, Hulimavu, Bangalore, with an intention to outrage the modesty of the victim girl/CW1 who was aged about 16 years, sent his [accused] mother to Muneshwara temple to lit the lamp and when his mother went out of the house, the accused [the paternal uncle of the victim girl] induced her [victim girl] that he will perform her marriage during Mahadeshwara Jatra to be held on 28th of January, 2015 and asked her to co-operate with him for sex, by saying that, he would give Rs.10,000/- to her and told her to remove her clothes and when the victim girl/CW1 refused to do the same, the accused squeezed her breast, thereby had physical contact with her and advances involving unwelcome and explicit sexual overtures and demanded for sexual favours, thereby the 5 Spl CC No.383/2015 accused has committed an offence punishable under Sec.354(A) of IPC ?
2) Whether the prosecution has proved beyond all reasonable doubt that, the accused with a sexual intent has committed sexual assault on the victim girl who was aged about 16 years, on the said date, time and place, he being the uncle of the victim girl by inducing her to perform her marriage after the Mahadeshwara Jatra and asked her to co-operate with him for sex, by saying that, he would give Rs.10,000/- to her and told her to remove her clothes and when the victim girl/CW1 refused to do the same, the accused squeezed her breast, thereby the accused has committed an offence as defined under Sec.7 of POCSO Act, 2012 r/w Sec.8 of POCSO Act, 2012?
3) What Order?
8. My findings on the above points are as under:
Point Nos.1 and 2: In the AFFIRMATIVE Point No.3: As per the final order, for the following:
REASONS
9. POINT NOS.1 AND 2:- As these Points are inter- linked to each other, they are taken up for common discussion to avoid repetition of facts, as Sec.42 of POCSO Act, 2012 shall prevail in connection with the alternative punishment, if the offender i.e, the accused in the present case found guilty of the offences, constituting the offence punishable under Sec.8 of the POCSO Act, 2012 and also under Sec.354A of IPC which is in force and if proved the accused is liable to punishment under IPC or under POCSO Act, 2012, as provided for punishment, which is greater in degree". Initial burden is casted upon the prosecution 6 Spl CC No.383/2015 to prove the guilt of the accused beyond all reasonable doubt, as it has come up with the case that, the accused has committed the offence of sexual harassment coming within the definition Clause of Sec.354(A)(1) (i) and (ii) of IPC and also Sec.7 of POCSO Act, 2012, as the specific allegation is "outraging the modesty of the victim girl, and demanded sexual favour by inducing her [victim girl] on 8.1.2015 at about 8.30 P.M., by sending his [mother] outside the house and closing the door of his office and inducing her to perform her marriage and asked her to co-operate with him for sex and on refusal, he [accused] further induced the victim girl of giving Rs.10,000/- and asking her to remove her clothes and on refusal, he squeezed the breasts of the victim girl and thereby he had physical contact with her and advances involving unwelcome and explicit sexual overtures and demanded for sexual favours". Therefore, if the prosecution discharges the initial burden, then, the court has to raise the presumptions in favour of the victim girl as well as the prosecution under Secs.29 and 30 of POCSO Act, 2012 and then the accused has to rebut the said presumptions, by placing rebuttal evidence and to substantiate the defence of his [accused] innocence, false implication etc. Therefore, considering these legal aspects, it is proceeded to evaluate and discuss the evidence on record placed by the prosecution, whether it has discharged the initial burden and able to bring home the guilt of the accused.
10. It is material to note that, the prosecution has placed the evidence of the very victim girl as PW1[CW1], who deposed 7 Spl CC No.383/2015 stating that, her age as 16 years and narrated the incident that was happened with her on 1.4.2015 at about 8.30 P.M., as contended in the Complaint-Ex.P1. But, she failed to appear before this court to give further evidence and also offer for cross- examination. It is also notable point that, at the first instance, she gave evidence in chief and when it was adjourned for further chief examination, during her evidence, she complained against the accused that, the accused was forcing her to take back the case and attempted to assault her and also her husband (AiÀÄdªÀiÁ£ÀjUÀÆ) and she lodged the complaint on 14.10.2016 and 6.11.2016 against the accused before the complainant police, but, the case was not registered by the police. In this regard, she referred the police receipts at Exs.C1 and C2. Hence, at that juncture, my predecessor-in-office had cancelled the bail and took the accused to the judicial custody, as against his [accused] unsatisfactory explanation that, it was a false case made by the victim girl against him, in order to grab his properties and he too had lodged a complaint, etc. But, he did not placed any materials in that regard on that occasion and therefore, holding it that, "the accused may threaten the victim girl, accordingly, the bail was cancelled" . Of course, at the subsequent stage, the accused has secured bail. At that juncture, the cross-examination was deferred , as the defence counsel prayed time for cross- examination of PW1, after recording of chief examination of other material witnesses. Thus, it was proceeded with for cross-examination and on the subsequent days, neither the victim girl /PW1 nor her sister [CW3] were present; nor the 8 Spl CC No.383/2015 prosecution has secured their presence inspite of issuance of witness summons, warrants and also proclamation as last resort. Thus, it remained the evidence of the victim girl/PW1 un-testified and there is no evidence of CW3-elder sister of the victim girl/PW1. But, it is notable point that, though the accused alleged on that occasion while canceling his bail, he had not placed any alleged materials and even on the subsequent stage of trial, to substantiate that he was innocent and to grab his property, a false case was created and that he had filed the complaint etc. This defence has not been duly proved. So, the version of PW1 to that extent is relevant.
11. However, the evidence of other material witnesses and documents placed on record are also material for evaluation and consideration of the case of the prosecution whether it has proved its case on the basis of circumstantial evidence to bring home the guilt of the accused. Hence, for the reason of statutory requirement under Sec.35(1) and (2) of POCSO Act, 2012, and also unchallenged order of my predecessor-in-office in canceling the bail, the evidence of PW1 is taken as true. If it was not true, the accused ought to have bring on record the relevant materials to rebut the prosecution case. Thus, his defence not substantiated.
12. The facts are that, relationship, death of the parents of the victim girl and age of the victim girl are not seriously disputed. The accused is none other than the paternal uncle of the victim girl [i..e, her father's younger brother] CW2[PW2] is the sister of the accused [i.e, the paternal aunt of the victim girl (CvÉÛÉ)] , CW3 is the 9 Spl CC No.383/2015 elder sister of the victim girl, but, she did not turned up to give evidence. CW4 who deposed as PW8 is the brother of the mother of the victim girl [i.e, maternal uncle of the victim girl].
13. CW2-Lakshmamma-PW2 being the paternal aunt (CvÉÛÉ)] of the victim girl has turned hostile to the prosecution case, though she has stated about the relationship with the accused and the victim girl. She has stated the residence of CW1/victim girl with CW3 in Pillaganahalli Layout and the accused was also residing near the said place called Kembathalli and he was doing coolie work. Her [PW2] mother [grandmother of the victim girl] was living with the accused. She showed ignorance about the age of the victim girl during the year 2015 and specifically stated that, the victim girl was not doing any work about one year back and she used to go out during the night and she was not staying in the house and coming back in the morning. Therefore, the accused assaulted her in that regard. Therefore, the victim girl has filed this false case against him and she was not enquired by the police and she does not know anything about the case.
14. But, on getting declared her as hostile witness with the permission of this court, the learned Public Prosecutor put suggestion to bring on record the statement given by this witness before the police under Sec.161 of Cr.P.C that, "on 8.1.2015 the victim girl was residing in the office premises along with her grandmother [mother of the accused] since 3 months and on the night at about 8.30 P.M., on the said day, the accused had 10 Spl CC No.383/2015 outraged the modesty of the victim girl and also sexually assaulted her by squeezing her breasts and demanded co-operation for sex with him and the victim girl by rescuing from the accused, ran away from that place and intimated it to her grandmother and it was in turn intimated to the sister of the victim girl and she informed it on phone to this witness and she advised the victim girl to lodge a complaint against the accused". etc But, she [PW2] has denied these suggestions. Of course she [PW2] is not an eyewitness . But, denied that, the victim girl informed about the incident to her has been denied. Hence, this suggestion is not supported the prosecution case. She also denied the statement given before the police as per Ex.P4 and gave explanation which is in the form of defence turning hostile to the prosecution case. Said defence was also denied during the cross-examination through the Public Prosecutor by the prosecution. She expressed ignorance as to the 'Association' formed as 'DSP' by the accused; nor she was aware of the age of the victim girl as 16 years during the year 2015. It is also suggested that, the victim girl was good in character and as the accused being the brother of this witness, she is deposing falsely against the victim girl. Of course, she has denied it. Thus, her evidence is shaky evidence. Even she has denied the status of the accused and forming the association. But she never stated about the accused as to his conduct, character and concern to the victim, as daughter of his brother. This witness is material witness-nearest relative of accused and to speak about the behaviour and character of the accused and why the police would record her statement at the time of investigation, disclosing the allegations against the accused U/s 161 of Cr.P.C. However, as 11 Spl CC No.383/2015 rightly argued by learned Public Prosecutor that she being the sister of the accused, deposed against the prosecution and the victim to help the accused etc., are acceptable that this witness is not worth to believe.
15. Another witness is the close relative of the victim girl i.e., CW4-Srinivas-PW8, the maternal uncle of the victim girl. He too also deposed about the relationship, as referred above. He has stated that, the victim girl was residing in her parents house and doing work in the office of the accused who had formed an association and in the year 2015, she [victim girl] was aged about 14 years. The mother of the accused was residing in the office premises along with the victim girl and she was looking after the children. It is material to note that, his evidence is consistent with the statement given before the police under Sec.161 of Cr.P.C that, he received phone call on 8.1.2015, from the sister of the victim girl-CW3 in the evening at about 8 to 8.15 P.M and it was about the incident that, the accused has committed sexual assault on the victim girl by squeezing her[victim girl] breasts and pulled her dress and by screaming the victim girl rescued from him and came out from the premises and informed it to her grandmother and the grandmother send her[victim girl] to the house of CW3 and hence, he [PW8] told the victim girl to file a complaint. The police have taken his statement by making enquiry , at that time, the mother of the accused was died. He identified the accused in the court who was in the accused closed box. His evidence has not been testified, as the accused being present and his counsel being absent and as there was no reasonable ground made out for adjourning the case 12 Spl CC No.383/2015 for cross-examination. Hence, it was recorded as cross- examination nil. Thus the evidence of PW8 is unrebatted and undisturbed and it is corroborating the prosecution case, linking the accused, as because at the subsequent stage, though there was ample opportunity for the accused to get the witness recalled, through his counsel, with due process of law, he has not availed it. By this reason also, the evidence of this independent witness is also relevant. Of course he [PW8] is considered to be a hear-say witness, but, it is the evidence of near relative of the victim girl, from whom he has got informed about the incident i.e. the very sister of the victim girl. The circumstances of the case and the conduct of the accused during the course of trial, has to be considered. It was at the time of recording of evidence of the victim girl, as she was threatened by accused and subsequently she remained absent. Apart from this, it is mandatory provision to be followed, as per Sec.35 of POCSO Act, 2012 as it has contemplated for recording of evidence of the child and to dispose off the case. The evidence of the child shall be recorded within a period of 30 days of the special court, on taking cognizance of the offence and reasons for delay has to be recorded by the special court. It has been referred about the non-appearance of the counsel of the accused and there is no acceptable clarification by the accused to grant time for cross-examination of this witness [PW8]. Thus, no materials are placed by the accused to believe that, the accused is innocent. Therefore, it is corroborating the prosecution case and consistent with the statement in connection with the sexual assault of the accused on the victim girl, in his office when she (victim) was alone, at that time.
13 Spl CC No.383/201516. CW8-Vanajakshi.R., who deposed as PW3 is the School Head Mistress of Government Primary School, Pillaganahalli, Bangalore, wherein the victim girl was studying. She has produced the Certificate supporting the prosecution case in connection with the date of birth of the victim girl, who has produced the document i.e, the Certificate at Ex.P5, certifying the date of birth of the victim girl. Since there is no dispute about the age the victim girl and this document being the school record, has evidentiary value. Hence, it is accepted, as evidence, proving the age of the victim girl. According to Ex.P5 and version of PW3, the date of birth of the victim girl was 20.7.2002. Therefore, on the date of incident, the victim girl was minor i.e, below the age of 18 years and above the age of 12 years.
17. The prosecution has brought on record the evidence of the doctor: Dr.Sahida [CW7] who deposed as PW10, has stated that, she has not medically examined the victim girl/PW1 in this case and she has not issued Ex.P8 and Ex.P8 was issued by Dr.Sridhar(PW-11). She had brought the MLC Register. According to the entry therein, the victim girl was examined on 9.1.2015 at about 7.45 P.M. She was not cross-examine by the learned defence counsel. Therefore, Dr.Sridhar.S.T was examined as Additional Witness he deposed as PW11. He has stated that, on 9.1.2015, at about 7.45 P.M., he has examined the victim girl sent through WPC of Hulimavu police station along with the requisition of Police Inspector, for medical examination with the history of attempt of rape by uncle Siddalingappa. The history was given by the victim girl and he has mentioned the same in MLC Register. With the 14 Spl CC No.383/2015 consent of the victim girl, he has examined her. On physical examination of the victim girl, she was 16 years of age and there were only 4 nail lacerations in the left breast. No other injuries were found. The victim girl did not give the history of intercourse. After examination, he has referred the victim girl for further examination. In this regard, he has issued Wound Certificate as per Ex.P8. He identified his signature as per Ex.P8(a). He opined that, injury No.1 i.e., Four Nail Laceration in left breast noted in Ex.P8, is simple in nature. If a person forcefully squeezes the breasts of the girl child, the injury No.1 noted in Ex.P8 would be caused. During his cross-examination by the learned defence counsel, he has explained the process of conducting of medical examination of the victim girl. It is material to note that PW-11 has denied suggestions that, the injury No.1 noted in Ex.P8 was not at all caused by nail scratching and that, the victim girl came into contact with thorns of small trees at the time of playing at that area and the injury No.1 noted in Ex.P8 has been caused. He has also denied that, at the instance of the police, he has created Ex.P8. Thus he has not supported the defence about the said injury was caused by thorns & not by nail scratching. Hence said defence does not sustain. Hence it is corroborative evidence that at the earliest point of time i.e., disclosed before the said doctor that she was sexually abused by accused, specifically noting his name in Ex.P-8, explaining incident, as history pertaining to injury nail scratching on breast.
15 Spl CC No.383/201518. Now, coming to the evidence of official witnesses, the prosecution has brought on record the evidence of:
(a) CW5-Jagadeesh Patel- the then Police Constable of Hulimavu police station deposed as PW4.. He has stated that, on 9.1.2015 the Police Inspector [CW9], had deputed him for tracing out the accused. He traced out the accused in his house at Kembathahalli and took him to custody and produced him before the Police Inspector. Accordingly, he gave his Report as per Ex.P6.
He has identified the accused before this court stating that, he had taken the custody of the accused on that day. He has assisted the Investigating Officer in the investigating process. He was not cross-examined by the learned defence counsel.
(b) PW6-B.K. Nageshaiah-Additional witness is the PSI of Hulimavu police station. He deposed that, on 10.1.2015, PW1 had come to the police station, he had called Smt.Nagamani, Child Welfare Officer, SJPU, South-East division, Koramangala, to record the statement of the victim girl and the victim girl has given her statement as per Ex.P9. Thereafter, he handed over the case file to PW5 for further investigation. He has done his part of investigation. He was not cross-examined by the learned defence counsel.
(c) Smt.Nagamani-WPSI- Additional witness who deposed as PW7 stating that, as per the requisition of the Investigating Officer- Police Inspector [PW6], on 10.1.2015, she has done counseling of the victim girl and recorded her statement as per Ex.P9 and given it to the Investigating Officer. . She has identified her signature as per 16 Spl CC No.383/2015 Ex.P9(a). She was cross-examined by the learned defence counsel. She has denied that she was not called to the police station for counseling the victim girl and the victim girl has not given any statement before her and she [PW7] has created the false statement. Thus these denial and disputing the counseling of victim, are not fatal to the prosecution to discard her version, PW-7 being WPSI, competent to record the statement of victim by conducting her counseling. Why she(PW7) could create false statement has not been clarified by the defence. Hence her (PW-7) evidence is worth to believe, that she recorded it as per Ex.P-9, wherein the victim girl herself clearly disclosed that the victim was studied upto 7th standard and lost her parents and joined the Job in Petrol bunk near Poultry Farm & whenever she was late, she used to come on the bike of Bharath who was working in that Petrol Bunk. By seeking it her sister scolded the victim and she went to her uncle's (accused) office and was staying with her grand mother-Yellamma and that for some days accused was looking after her well. Thereafter, he had filed a false complainant against the brother-in-law (sister's husband) Manjunath for having mis-behaved with her(victim) and that it was compromised and that on 08/01/2015 during the night at 8.30 P.M when she (PW-1) and her grand mother were in the office, the accused along with his friends had taken drinks and went away and then the accused came into the office and asked her(PW-1) to bring "pan" (J¯É CrPÉ) and she brought it and gave it to him. Then accused sent his mother for lighting the lamp in the Muneswara Temple and that PW-1 was alone. The accused at that time induced her of sexual favours, stating that he would get a job for her and perform her 17 Spl CC No.383/2015 marriage in Madeshwar Jatra(fare) and asked her to remove her cloths. When she asked why, accused went out side to see, whether anybody was there and came inside the office and closed the door of the office, dragged and hugged her and squeezed her breasts, by such an act there was lacerated wound caused on her left chest. She shouted, no body came there to rescue her. Then accused was removing his cloths, the victim-PW-1 rescued from him(accused) and came out of the office and was running. At that time her grand mother was coming towards office. She (PW1) has narrated the incident to her grand mother. She told to intimate the same to her(victim) sister-in-law. The accused went away in the car. Her(PW-1) grand mother by next day morning sent her(PW-1) to the house of her (PW-1) sister-in-law(Lakshmi-PW-2) at Hennagar Village and that she (PW2) had brought her to police station and PW-1 lodged the complaint". Thus the contents of Ex.P-9 also supporting the version of PW-1, about the incident at the office of accused, i.e., place of incident, when the victim(PW-1) was alone in the office premises at that time, and the accused tried to commit sexual assault on her(PW1)
(d) Smt.Savitha Bai-WPC- Hulivamu police station, deposed as PW9 that, on 9.1.2015 as per the direction of the Investigating Officer, she took the victim girl to Jayanagar General Hospital accompanied by the sister of the victim girl. After examination of the victim girl, she [PW9] she has produced the victim girl before the Investigating Officer. She was not cross-examine by the learned defence counsel. She has assisted the Investigating Officer in the investigation process. It is proof that after filing of the complaint, 18 Spl CC No.383/2015 the victim girl/PW1 was subjected to medical examination, with the history of the sexual assault by the accused.
(e) CW9-Ravishankar.C.R- the then Investigating Officer/Police Inspector of Hulimavu Police station, deposed as PW5. He has stated that, on 9.1.2015, at about 6 P.M., he received the written complaint [Ex.P1] of the victim girl. After receipt of the same, he has registered a case in Cr.No.27/2015 and sent the FIR [Ex.P7] to the jurisdictional court and to his higher officers. On the same day, he deputed CW5 for tracing out the accused. CW5 has traced out the accused and produced before him and gave Report as per Ex.P6. After completing the arrest formalities, he has arrested the accused. On 10.1.2015, he has conducted the spot mahazar [Ex.P2] of the office of the accused in between 2 P.M., to 2.45 P.M. in the presence of pancha-CW3. He has recorded the statements of CWs.2 to 4 on the same day. On 14.1.2015, he sent requisition to the Learned Magistrate for recording the statement of the victim girl, under Sec.164 of Cr.P.C. Accordingly, the statement of the victim girl under Sec.164 of Cr.P.C is as per Ex.P3. On 17.3.2015, he obtained the Certificate certifying the date of birth of the victim girl from the Head Mistress of Government School, Pillaganahalli, as per Ex.P5. On 9.1.2015, he sent the victim girl along with the lady police official to medical examination and on 1.4.2015, he obtained the wound certificate of the victim girl as per Ex.P8. On 10.1.2015, he has obtained the statement of the victim girl as per Ex.P9 though the counseling done by the SJPU Co-ordinator. On 18.4.2015, after completing the investigation, he has filed the charge-sheet 19 Spl CC No.383/2015 against the accused. Thus, his evidence is believable, as his evidence is supported by the material witnesses, as discussed above. Hence, his evidence is appreciated that the prosecution is able to prove the guilt of the accused.
19. Therefore, viewed from the evidence of the victim girl, and the conduct of the accused during the trial, as discussed above, and non-securing of victim girl on subsequent stage, in view of the provisions of Sec.35 of POCSO Act, 2012, the evidence of the victim girl has duly considered that, a genuine case has been made out by the prosecution by leading evidence of the victim girl, which is corroborating the evidence of the Investigating Officer and the Doctor, as discussed in the aforesaid paragraphs of this Judgement, as because, unshakened and supporting evidence are indicating the accused that, he has committed sexual assault on the victim girl, in his office when she was alone, by touching the private parts of the victim girl i.e., the breasts of the victim girl and the said offence is certainly falls within the definition clause of Sec.7 of POCSO Act, 2012 which contemplates the nature of the offence defining as sexual assault that, " Whoever with a sexual intent touches the breasts of the child is said to be committed sexual assault on the child". In the present case, it is proved by the prosecution by cogent and clinching evidence as discussed above. Hence, the accused is liable to be punished under Sec.8 of POCSO Act, 2012 for sexual assault on PW1 who was aged about 16 years. Sec.8 of the Act prescribes punishment of imprisonment, with fine. So, also it is defined under 20 Spl CC No.383/2015 Sec. 354(A)(1)(i) of IPC under the head 'Sexual Harassment' and sub-section (2) of Sec.354(A) of IPC provides for punishment for sexual harassment. The nature of the offence, as discussed above committed by the accused on the person of the victim girl, is also coming within the purview of definition clause of the said section 354(1)(i) and (ii) of IPC, i.e., physical contact and the advances involving unwelcome and explicit sexual overtures and demanded for sexual favours. Hence, the prosecution has proved the guilt of the accused by placing clinching and cogent evidence. Even the accused has not proved the defence of his innocence and that he has been falsely implicated in this case and that the victim girl has filed false complaint to grab his property. Therefore, he [accused] is not entitled for acquittal. There is no rebuttal evidence led by the accused, as such, presumptions are available in favour of the prosecution as well as the victim girl, under Secs. 29 and 30 of POCSO Act, 2012, as well as the guilt of the accused has been proved by the prosecution by clinching and corroborative evidence to convict the accused. Thus, the prosecution has proved the guilt of the accused and hence, the accused is liable for punishment under Sec.8 of POCSO Act, 2012 and Sec.354(A)(2) of IPC. Accordingly, POINTS-1 AND 2 are held in the AFFIRMATIVE.
20. POINT NO.3:- In the result, I proceed to pass the following:
21 Spl CC No.383/2015ORDER Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences punishable under Sec.8 of POCSO Act, 2012 and under Sec.354(A)(2) of IPC.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 26th day of April, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
30.4.2018 ORDER ON SENTENCE The accused/convict is produced from the judicial custody. The learned Public Prosecutor is present. But, the learned counsel for the accused is absent. Heard on sentence. The accused submitted that, civil case is pending with reference to his property and false case has been filed and he has not committed the offence; He is having wife and 3 children and he is the only earning member of the family and leniency may be shown.
On the other hand the learned Public Prosecutor has specifically argued that, the accused has committed heinous offence and the prosecution has proved the guilt of the accused and hence, the accused is entitled for maximum punishment.
22 Spl CC No.383/2015In view of the arguments heard on sentence, the prosecution has proved the guilt of the accused and the accused was convicted for the offences punishable under Sec.8 of POCSO Act, 2012 and Sec.354(A)(2) of IPC. Sec.8 of POCSO Act, 2012 provides for imprisonment for a term of not less than 3 years, but, which may extend to 5 years and with fine, whereas, Sec.354(A)(2) of IPC provides for the punishment of a term which may extend to 3 years and with fine. Hence, Sec.42 of POCSO Act, 2012 attracted. Therefore, the punishment awardable under Sec.8 of POCSO Act, 2012 is higher in degree than that of the punishment to be awarded under Sec.354(A)(2) of IPC. Accordingly, I proceed to pass the following:
SENTENCE The accused/convict by name S.C.Siddalingappa shall undergo imprisonment for a period of 3 years and to pay a fine of Rs.5,000/- In default of payment of fine amount, the accused shall further undergo simple imprisonment for a period of 6 Months, for the offence punishable under Sec.8 of POCSO Act, 2012, which is higher in degree than that of the punishment prescribed under Sec.354(A)(2) of IPC.
After deposit of fine amount of Rs.5,000/-, by the accused, shall be confiscated to the State Exchequer, subject to payment of Rs.3,000/- as compensation to be adjusted to the victim compensation, if she [victim girl/PW1] claims the victim compensation under the 'Victim Compensation Scheme'.
23 Spl CC No.383/2015The period of detention undergone by the accused/convict in judicial custody, shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
MO-1 i.e, the CD is ordered to be annexed to Ex.P3 ie., the statement of the victim girl/PW1 recorded by the Learned Magistrate under Sec.164 of Cr.P.C.
Free Copy of this judgment and order on sentence, shall be furnished to the accused forthwith.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 30th day of April, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Victim girl CW1 22.3.2016 Pw.2 Lakshmamma CW2 9.11.2016 PW.3 Vanajakshi.R CW8 24.3.2017 PW.4 Jagadeesh Patel CW5 24.3.2017 24 Spl CC No.383/2015 PW.5 Ravishankar. C.R CW9 13.7.2017 PW.6 B.K.Nageshaiah Addl.Witenss 20.9.2017 PW.7 Nagamani Addl.Witness 6.10.2017 PW8 Srinivas CW4 9.11.2017 PW9 Savitha Bai Addl.Witness 23.1.2018 PW10 Dr.Sahida CW7 14.2.2018 PW11 Dr.Sridhar.S.T Addl.Witness 24.3.2018 Documents marked for the prosecution: Ex.P1 Complaint dated: 9.1.2015 lodged by the victim girl/PW1 Ex.P1(a) Signature of PW1/victim girl Ex.P1(b) Signature of PW5 Ex.P2 Spot mahazar where the incident took place Ex.P2(a) Signature of PW1/victim girl Ex.P2(b) Signature of PW5 Ex.P3 Statement of PW1/victim girl recorded by the Learned Magistrate under Sec.164 of Cr.P.C Ex.P3(a) Signature of PW1/victim girl Ex.P4 Statement of PW2 given before the complainant police as per Sec.161 of Cr.P.C Ex.P5 Certificate issued by the Head Mistress,
Government Primary School, Pillaganahalli, Banngerghatta Road, Gottigere Post, Bangalore, wherein the victim girl was studying, certifying the date of birth of the victim girl as 20.7.2002 Ex.P5(a) Signature of PW3 25 Spl CC No.383/2015 Ex.P6 Report given by PW4 regarding tracing out of the accused and apprehending him and producing him before the Investigating Officer of the complainant police station.
Ex.P6(a) Signature of PW4
Ex.P6(b) Signature of PW5
Ex.P7 FIR
Ex.P7(a) Signature of PW5
Ex.P8 Wound Certificate of the victim girl/PW1
Ex.P8(a) Signature of PW11
Ex.P9 Statement given by PW1/victim girl before the
SJPU Co-ordinator
Ex.P9(a) Signature of PW7
Ex.C1 Original NCR No.1534/2016 dated: 14.10.2016
registered by the complainant-Hulimavu Police station on the complaint lodged by PW1/victim girl against the accused Ex.C2 Original NCR No.1640/2016 dated: 6.11.2016 registered by the complainant-Hulimavu Police station on the complaint lodged by PW1/victim girl against the accused Material Objects marked for the prosecution:
MO-1 CD of Ex.P3 Witness examined, documents and MO marked for the accused: NIL [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
26 Spl CC No.383/201526.4.2018 Accused is present.
Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences punishable under Sec.8 of POCSO Act, 2012 and under Sec.354(A)(2) of IPC.
[YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
30.4.2018
Accu Accused is produced from JC.
Sentence pronounced in open court:
[Vide separate detailed sentence}
The accused/convict by name
S.C.Siddalingappa shall undergo
imprisonment for a period of 3 years and to pay a fine of Rs.5,000/- In default of payment of fine amount, the accused shall further undergo simple imprisonment for a period of 6 Months, for the offence punishable under 27 Spl CC No.383/2015 Sec.8 of POCSO Act, 2012, which is higher in degree than that of the punishment prescribed under Sec.354A(2) of IPC.
After deposit of fine amount of Rs.5,000/-
by the accused, shall be confiscated to the State Exchequer, subject to payment of Rs.3,000/- as compensation to be adjusted to the victim compensation, if she [victim girl/PW1] claims the victim compensation under the 'Victim Compensation Scheme'.
The period of detention undergone by the accused/convict in judicial custody, shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
MO-1 i.e, the CD is ordered to be annexed to Ex.P3 ie., the statement of the victim girl/PW1 recorded by the Learned Magistrate under Sec.164 of Cr.P.C.
Free Copy of this judgment and order on sentence, shall be furnished to the accused forthwith.
28 Spl CC No.383/2015[YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
29 Spl CC No.383/2015