Bangalore District Court
State By Madivala Police vs Rajappa Reddy on 17 March, 2018
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the 14th day of March, 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.227/2015
COMPLAINANT: State by Madivala Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Rajappa Reddy,
Son of Shamanna Reddy,
Aged 58 years,
Residing at: 11th Main, 1st Cross,
Hongasandra, Beguru Road,
Bangalore.
[By Advocate Sri.Narayana Swamy.M]
1. Date of commission of offence 31.3.2015
2. Date of report of occurrence of 01.04.2015
the offence
3. Date of arrest of accused 01.04.2015
4. Date of release of accused [bail] 06.04.2017
5. Period undergone in custody by 2 years 5 days
the accused
6. Date of commencement of 21.11.2015
evidence
2 Spl CC No.227/2015
7. Date of closing of evidence 15.2.2018
8. Name of the complainant Smt.M.Rajeshwari-
complainant as well as the
mother of the victim girl
9. Offences complained of Sec.354(A) of IPC and under
[as per the charge-sheet] Secs.9(m) and 10 of POCSO Act,
2012
10. Opinion of the Judge Accused is convicted and
sentenced
JUDGEMENT
The Police Inspector, Madiwala police station has filed charge-sheet against the accused for the offences punishable under Sec.354(A) of IPC and under Secs.9(m) and 10 of POCSO Act, 2012
2. It is the specific case of the prosecution that, on 31.3.2015 at about 4.30 P.M., when the minor victim girl /CW2 and her friends were seeing TV in the house of CW6 situated near Anjaneya Temple, 11th Main, 1st cross, near Tent bus stop, Hongasandra, Bangalore, at that time, the accused entered the said house on seeing that, there were no elders in the said house, with a sexual intent sat by the side of the victim girl aged 10 years and removed his pant zip and held the hands of the victim girl on his penis, knowingly that she was minor and outraged the modesty of the victim girl and committed an offence punishable under Sec.354(A) of IPC and also committed the offence which is coming within the purview of Sec.9(m) of POCSO Act, 2012 i..e, aggravated sexual assault punishable under Sec.10 of POCSO Act, 2012.
3 Spl CC No.227/2015Hence, on the basis of the complaint lodged a case was registered in Cr.No.602/2015 and the Investigating Officer proceeded with investigation. During the investigation, he arrested the accused and remanded him to the judicial custody. After completing the investigation, charge-sheet has been filed. 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 who is on bail, 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 Charge on 18.9.2015 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed the trial.
6. To prove the case, the prosecution has examined PWs-1 PW-17 witnesses, out of total 19 charge-sheet witnesses and placed reliance on Exs.P1 to P12 documents and Material Objects as per 4 Spl CC No.227/2015 MOs-1 to 18. After completion of the evidence of the prosecution witnesses, the Statement of the accused under Sec.313 of Cr.P.C has been recorded. The accused has denied the incriminating evidence available against him, but, he has not chosen to adduced evidence in support of his defence.
7. Heard the arguments of the learned Public Prosecutor and the learned defence counsel. 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 that, on 31.3.2015 at about 4.30 P.M., when the victim girl/CW2 who was aged about 7 years and her friends were seeing the TV in the house of CW6 situated near Anjaneya Temple, 11th Main, 1st Cross, near Tent bus stop, Honsandra, Bangalore, the accused entered the said house by seeing that no elder persons were present in the house, with a sexual intent sat by the side of CW2/victim girl and removed his pant zip, and held the hands of the victim girl on his penis, knowingly that she was minor and outraged the modesty of the victim girl ,thereby the accused has committed an offence punishable under Sec.354(A) (2) of IPC?
2) Whether the prosecution has proved beyond all reasonable doubt that, on the same date, time and place, when CW2/victim girl was seeing the TV along with her friends in the house of CW6, the accused entered the said house, by observing that no elder persons were present in the said house, with a sexual intent, he sat by the side of CW2/victim girl and removed his pant zip, and held the hands of the victim girl on his penis, knowingly that she was minor, i..e, below the age of 12 years, thereby the accused committed aggravated sexual assault on CW2/victim girl coming within the purview of Sec.9(m) of 5 Spl CC No.227/2015 POCSO Act, 2012, punishable under Sec.10 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. It is the specific case of the prosecution that, "on 31.3.2015 at about 4.30 P.M., when the minor victim girl /CW2 and her friends were seeing TV in the house of CW6 situated near Anjaneya Temple, 11th Main, 1st cross, near Tent bus stop, Hongasandra, Bangalore, at that time, the accused entered the said house on seeing that, there were no elders in the said house, with a sexual intent sat by the side of the victim girl aged 10 years and removed his pant zip and held the hands of the victim girl on his penis, knowingly that she was minor and outraged the modesty of the victim girl and committed an offence punishable under Sec.354(A) (2) of IPC and also committed the offence which is coming within the purview of Sec.9(m) of POCSO Act, 2012 i..e, aggravated sexual assault punishable under Sec.10 of POCSO Act, 2012." Hence, the prosecution has to discharge its initial burden and only when it is discharged, the presumption under Secs.29 and 30 of POCSO Act, 2012 can be raised. Therefore, whether the prosecution is able to discharge its burden is a question to be 6 Spl CC No.227/2015 considered on the basis of the available evidence on record. If the prosecution has discharged the burden, then it would shifts on the accused to rebut these presumptions. So also if the accused is able to rebut the presumptions available under the said provisions and establishes the alleged defence and existence of reasonable doubt against the prosecution case, then he is entitled for benefit of doubt and acquittal.
10. The prosecution has adduced the evidence of the material witness i.e., the very victim girl/CW2 who deposed as PW3. She has narrated the incident consistently, whose evidence is also supported by the direct eye-witnesses i.e., her friends CW4-MuraliMohan who deposed as PW7 and CW5-Yuvaraj who deposed as PW8. They were the minors at the time of incident [my learned Predecessor-in-office recorded the evidence testifying their rationality about the understanding of the questions and to give answers and thus their evidence is on record]. They [PWs-3, 7 and 8] deposed corroborating the prosecution case regarding the manner in which the accused has committed the offence. During their chief examination and during the cross-examination also, they are firm in their versions and the deposed in unequivocal terms that, the victim girl/PW3 being the daughter of the complainant/CW1/mother of the victim girl/PW2; and CW3/father/PW4; and that, CWs-4 and 5 are the children of CW6 and CW7; and that, CW8-Shivanand neighbour deposed as PW5, to whom these child witnesses inclusive of the victim girl intimated the incident immediately and in turn, PW5 went to the house of the complainant and narrated the things and requested to take care of 7 Spl CC No.227/2015 the victim girl and her another daughter. The victim girl too narrated the incident to her mother and thereafter her mother after arrival of her husband i..e, father of the victim girl/CW3/PW4 narrated the incident and then they lodged the complaint in the police station.
11. Another material witness is CW9-Sunand who deposed as PW10. However, her evidence is relevant to the extent that, s he noticed that, the accused was by crossing the compound wall located in between her house and the house of CW7-Partiban when she was standing in front of her house, in between 4 P.M., to 4.30 P.M., on 31.3.2015; and then the accused went inside the house and at that time, the victim girl and the children of CW7 i..e, CWS-4 and 5 were seeing the TV and after sometimes, the children came out from the house by screaming and they intimated the incident to PW5-Shivananda, specifically the victim girl regarding the incident, specifically about his [accused] misbehavour with the victim girl and PW5 went to the house of the victim girl and narrated it to her mother. In turn, PW2 stated that since her husband went for his work and she went to call him on phone and thereafter this witness [PW10] came to know about the filing of complaint and that police have recorded her statement.
12. It is therefore relevant to reproduce the material evidence which has been supported by the other material witnesses, as referred above i.e., of victim girl-PW3. In the chief examination, she [PW3] deposed that:
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Her firm evidence also revealed from the cross-examination by learned defence counsel that:
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¸ÀzÀj CAPÀ®£ÀÄ jªÉÆÃl£ÀÄß QvÀÄPÛ ÉÆAqÀÄ vÀ£Àß ±Ànð£À ªÀÄA¨sÁUÀzÀ ¥ÁPÉmï£À°è ElÄÖPÉÆAqÀ£ÀÄ. £Á£ÀÄ ¸ÀzÀj CAPÀ®¤UÉ jªÉÆÃl£ÀÄß PÉÆr £ÁªÀÅ n« £ÀÉÆÃqÀ¨ÉÃPÀÄ CAvÀ CA¢¯è. ¸ÀzÀj CAPÀ¯ï £ÀªÀÄUÉ ¨ÉÊ¢gÀĪÀÅ¢®è. CAPÀ®£ÀÄ £À£Àß §®UÉÊAiÀÄ£ÀÄß 9 Spl CC No.227/2015 »rzÀÄPÉÆAqÀ£ÉAzÀÄ ¸ÁQë §®PÉÊAiÀÄ£ÀÄß vÉÆÃj¸ÀÄvÁÛ¼É. CªÀ£ÀÄ vÀ£Àß AiÀiÁªÀ PÉʬÄAzÀ £À£Àß PÉÊAiÀÄ£ÀÄß »rzÀÄPÀÉÆAqÀ£ÉAzÀÄ £À£ÀUÉ UÉÆwÛ®è.
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13. The version of PWs-7 and 8 which is corroborative evidence have deposed specifically that, the incident was taken place on 31.3.2015 and they were minors and friends and playing with the victim girl and her sister and Nishanth and that were watching the TV in their house and PW7 specifically stated that, they were watching Pogo channel [in the T.V., Chintu and Pogo channels are the popular programme for the children] and at that time, it was 4 P.M., and the accused came inside their house by jumping the compound wall and that they were sitting on the ground and his father went out for work to run the auto and his mother was not at home, as she went to his grandmother's house and the accused came down from the chair and sat by the side of the victim girl and misbehaved with her by taking the hand of the victim girl and removed his [accused] pant zip and made her to hold his private part penis (GZÉÑ ºÀÄAiÀÄÄåªÀ eÁUÀPÀÉÌ) and the victim girl got rescued from him and came out of the house. Then they also came out of the house and the incident was told by the victim girl to one uncle. However, they are unable to tell the name of that 10 Spl CC No.227/2015 uncle but, the uncle is none other than the neighbour PW5- Shivananda. Apart from this, they [PW7 and PW8] along with the victim girl have identified the accused who was shown to them by removing the slide from the accused platform located in the open court of this Child Friendly Court. Thus, they [PWs-3, 7 and 8] deposed firmly and it is corroborating and clinching evidence supported the prosecution case.
14. The suggestions put to these witnesses [PWs-3, 7 and 8] if considered in its entirety, it is nothing but, mere suggestion and the admission on the part of the accused that, he was very well present at that time and place of incident.
(a) The accused tried to take up the defence that, they [PWs-3, 7 and 8] were seeing the accused for the first time in the court hall, apart from seeing him at the time of the alleged incident, but, they [PWs-3, 7 and 8] are very firm about the acquaintance with the accused, as because, he is the neighbour residing in a house located nearby their houses. Hence, the accused is a known person to them. Hence, question of fearness on account of his arrival in the house of CW7 has no much consideration. It is natural that these child witnesses including the victim girl expressed that, they did not feel fear. It is expected because of his [accused] acquaintance.
(b) PW7 has specifically stated during the cross- examination that, usually they were bolting the door when they were staying the house whenever their parents were outside and not in the house, but, this witness [PW7] specifically explained that, on the date of the incident, they did not bolt the door, but, only closed it.
11 Spl CC No.227/2015It is also supported the prosecution case that, the accused entered the house of CW7 by opening the door and the witnesses PWs-7 and 8 did not oppose for his arrival inside the house to see the TV. But, their reaction as against the misbehavior of the accused was, an act coming out of the house and narrating the incident before the immediate person-PW5 and also narrating it to the parents of the victim girl. They are relevant and corroborating the prosecution case. In this connection, the very material witness is PW5- neighbour, to whom these material child witnesses and the very victim girl narrated the incident and so also the same has been intimated by PW5 to the mother of the victim girl about the incident and apart from this, the very victim girl herself stated the manner in which the incident was taken place in the house of PWs-7 and 8, specifically the misbehaviour of the accused. Even the same has been narrated after arrival of the father of the Victim girl/PW4. PWs-2, 4 and 5 have deposed that, PW3 narrated the incident to them specifically sexual assault by the accused on her.
15. During the cross-examination of the said material witnesses, it is revealed the alleged specific defence which are also pressed upon by the learned defence counsel that:
(a) the accused had drinking habit and quarreling with his wife.
(b) Because of his drink habit and quarrel of the accused, the neighbours got annoyed and beaten him and caused injury.
(c) Due to causing injury, he [accused] was underwent suturing and bandage and was taking rest and as there was noise, 12 Spl CC No.227/2015 he came to the house of PW9 for requesting those children [victim girl and her friends] to reduce the TV sound.
16. It was suggested to PW3/victim girl and her friends that, previous day there was quarrel and the accused was injured and was underwent treatment of suturing and bandage. The Medical record Ex.P1 and evidence of PW1 who examined the accused there was no any material or evidence to show about the alleged theory of injury. He has not produced any medical record on his behalf that because of said injury on that night, the doctor gave such a medical treatment. If it was so, it ought to have suggested to PWs-2 to 5 and PWs-7 to 9 about the physical appearance of the accused that, he was injured and had bandaged his forehead, at that time, when he entered the house [place of incident] and at the time of incident, so also that, he had the same physical condition at the time of the arrival of parents/neighbours and the police, whoever it might be till his arrest which includes preliminary medical test by the Investigating Officer in the hospital and production before the court to take him to the judicial custody. Nowhere he [accused] disclosed the said theory of injury and cause for such injury, etc., so that it can be believed that, he had been to the house of PW9 to tell the children to reduce the sound of the TV programme that was observing . Hence, this defence has not been proved by the accused. So the pleas of injury and request to reduce the sound, are ruled out. The incident was in the house of PW9, which is material fact and all the said material witnesses have supported this fact and corroborated the prosecution case. PW2 stated that, the victim girl told about the incident in their 13 Spl CC No.227/2015 house which was located in the 4th floor of the building and also when she came down from that house located on the 4th floor. However to putting question by the learned counsel for the accused to this PW2, she gave the answer explaining the discrepancy that, the children came to her house, of course inside the house and told about the incident and then she came down from her house to see who was that culprit and at that time also they [children] told it to her. It is but natural answer to believe. No any ambiguity to discard her version to accept the defence of innocence of the accused. It does not aid the accused to rescue from the guilt and conviction.
17. So also it is material that this witness[PW2] did not see the friend of the victim girl by name Nishant the son of the neighbour. Whereas PW3 stated that, Nishant was going to school where she was studying and that Nishant had gone with friends and herself [PW3] to see the T.V in the house of PW9 on that day. PW7 and PW8 have also deposed about the presence of Nishant. The learned counsel for the accused argued that the Investigating Officer has not cited the friend Nishant as witness which is material omission of this witness and doubt would arise which benefits the accused as against avoidance of citing him that, he would tell the truth about innocence of the accused supporting his defences and accused is entitled for benefit of doubt and his acquittal. But as argued by the learned Public Prosecutor, which is reliable and on record that the defence has not made out how Nishant would support the accused, by securing such admissions from PWs-3, 7 and 8, that the accused was not indulged in 14 Spl CC No.227/2015 committing said sexual assault and he came there to tell them [children] to reduce the TV sound and he was an injured and was taking rest in his house and they [children] were making noise with high sound of T.V and that it was disturbed the accused and he came there to get the sound reduced etc. Even it was not at all suggested these alleged defensive facts to the very Investigating Officer that, if he cited him[ Nishant] the said alleged defensive version would come out and during his investigation, he found these facts and same was suppressed by this Investigating Officer- PW15. Hence only suggestion, without proof of alleged defence has no substance. How the said child i.e., Nishant [whose age was not stated and how he can give evidence to believe], competent, etc., has not been substantiated. So, non-citing Nishant as witness by the Investigating Officer does not fatal to the prosecution case to discard as doubtful case is made out. On this count also, this defence fails.
18. It is also pertinent to note that the very statement of accused recorded under Sec.313 of Cr.P.C it has supported the prosecution case, as because, he has not disputed, nor denied specifically the incriminating evidence of material witnesses who deposed that, the accused was there [his presence] in the house of PW9 [neighbour of the victim girl], and that children were also there and were seeing the TV [children's programme] on that date and at that time. The place, time and date being admitted factors, need not be proved. But what is revealed, from his statement and conduct there-from is that, he knew about the family of PW3- victim girl and her parents and about neighbours-PWs-5, 7 to 10 15 Spl CC No.227/2015 and CW7 (But not explained why they tell false things, with due proof, about the said incident); He did not know about PW3 was taken for recording her statement under Sec.164 of Cr.P.C. He pleaded ignorance that, "PW3 intimated about his [accused] misbehaviour [sexual assault] to uncle [PW5] and PW5 intimated it to PW2 [mother of PW3] and that, PW3 told about the incident to the police, doctor in the hospital and the Learned Magistrate who recorded her statement under Sec.164 of Cr.P.C by video also". He admitted location of his house nearby the said witnesses; About the evidence of PW4 the father of the victim girl, the accused stated that, he [PW4] came to his house, he was sleeping and he did not know other facts i.e., PW4 was told about incident after his arrival by his wife and explained that out of fear she did not intimated early to him and he [Pw4] went to the house of the accused and he [accused] was inside the house by locking it inside, and his [PW4] wife PW2 lodged the complaint. These are also admitted facts; Accused pleaded ignorance about the investigation process followed by Investigating Officer-PW15; Accused further gave explanation which is not supported by any cogent and clinching evidence, about his defence that, "he was in the house, as because he had injury to his forehead, one day earlier to the incident date and took treatment [suturing] and they came to his house and made 'galate' and at 6-6.30 P.M., police arrested him". He did not choose to adduce either of his evidence or of other material evidence; nor he placed any material documents to show that he was injured and under rest [medical records suggesting rest and not explained nature of injury]. Hence, on this count also his [accused] defence cannot be believed. These inconsistent pleas of defence and 16 Spl CC No.227/2015 absence of supporting material evidence do not prove his innocent and false implication.
19. The learned counsel for the accused pressed upon the inconsistencies in the evidence of PWs-2 and 10 regarding existence of compound wall between the house of PW10 and the house of PW9. While recording the statement under Sec.313 of Cr.P.C of the accused, referring the incriminating evidence of PW10, he denied that, he by jumping the compound wall, came to the house of PW9. He has denied the incriminating evidence. Though PW10 stated in this regard, Pw2 has not given supporting evidence to PW10 regarding the compound. But, it is not so material discrepancy as because, accused himself admitted his presence in the place of incident on that date. This discrepancy can be ignored. It does come to the aid of the accused to support his alleged defences of "false implication and innocence and his presence in the place of incident to tell them [Children] to reduce the sound of TV and that he did not commit any sexual assault on the victim girl".
20. The evidence on spot mahazar is placed on record by the prosecution. On registering the case, when the Investigating Officer-PW15 [CW19] Police Inspector Nagaraj has undertaken the investigation, he has conducted spot panchanama by securing 2 panch witnesses CWs-10 and 11. CW10 deposed as PW6 supporting the version of the Investigating Officer, as because PW6 supported the case, the prosecution has given up the evidence of another witness-CW11 through the learned Public Prosecutor.
17 Spl CC No.227/2015PW10 deposed that, he was called by the Investigating Officer with notice to be the spot panchanama witness and PW15 i.e., CW19 Nagarj.G, Police Inspector who has received the complaint and registered the case and submitted FIR to the jurisdictional court and copy to the higher authorities and conducted spot mahazar as per Ex.P3. The spot has been shown by the very victim girl along with her mother. It was the hall [room] consisting of a TV and chair i..e, house of PW9 and panchanma was conducted on the next date i.e., on 1.4.2015. PW2 has signed the spot mahazar as per Ex.3(a) and this witness [PW6] has signed therein at Ex.P3(b) and the very Investigating Officer PW15 identified his signature therein as per Ex.P3(c). Thus, the contents of the Spot Mahazar- Ex.P3 are proved by adducing the evidence of panch witness [Pw6] as there is no rebuttal evidence adduced by the defence side to disprove the contents of Ex.P3.
21. Apart from this, the very accused has not disputed the place, time and date of the said incident, as because, of suggestions put to the material witnesses as referred above, are also supported the place of incident. Hence, much discussion is avoided in this connection.
22. The prosecution has adduced the evidence of the School Head Master-CW15 by name Bhanu Prakash who deposed as PW11. He is the Head Master of Brahmagiri Vidya Mandir, Hongasandra, Jayanagar, Bangalore, wherein the victim girl is studying. . He has issued the Certificate as per Ex.P5 showing the date of birth of the victim girl as 19.4.2008 and thus, it is proof of 18 Spl CC No.227/2015 the case of the prosecution that, on the date of the alleged incident, the victim girl was minor and below the age of 12 years. He [PW11] being a competent person has issued the authenticated document. There is no rebuttal evidence to discard Ex.P5 or the version of PW11, on the part of the accused except the suggestion that, it was created document etc. However, there is no serious dispute about the age of the victim girl as minor below the age of 12 years. Hence, much discussion is not necessary.
23. Now coming to the investigation process, PW15 who has proceeded with investigation, by arresting the accused on apprehending him and sending the victim girl and the accused for medical examination. He got recorded the statement of the victim girl through SJPU i..e, CW14 namely Meenakshi who deposed as PW12, being the competent person in that regard. It was with the help of Woman ASI-CW16-Subbalakshmamma who deposed as PW16 [PW16 is retired sub-inspector at the time of her evidence]. Their evidence is corroborative with each other supporting the prosecution case that, the Investigating Officer with a requisition requested them specifically the SJPU-PW12 that on 1.4.2015 to record the statement of the victim girl by counseling her and to PW16 for giving assistance to PW12 in that regard. Hence, both [PWs-12 and 16] went to St.John's hospital where the victim girl was made available along with her mother and WPC-Niyothi Mani. On counseling, PW12 recorded the statement of the victim girl as per Ex.P6 and she put her signature as per Ex.P6(a). Ex.P6(b) is the signature of PW16. These 2 witnesses [PWs-12 and 16] have specifically stated that, the victim girl narrated the incident 19 Spl CC No.227/2015 focusing on the misbehaviour of the accused with her while she was watching the TV in the house of PW9 and that the victim girl by rescuing from the accused, stating that, her sister wanted to sleep and came out of the house along with her sister and other children also came out of the house, giving the reasons and narrated the said incident to CW8/PW5 and in turn it was intimated by the victim girl to her mother etc.
24. Now coming to the medical evidence. The prosecution has adduced the evidence of:
(a) CW12-Dr.G.Babu Rao who deposed as PW1 has stated that, on 1.4.2015, the Madivala police produced one person by name Rajappa Reddy, aged 58 years along with the requisition of Police Inspector for medical examination of the accused.
Accordingly, he [PW1] examined the accused and opined that: 'On local genital examination, there was no evidence of signs of recent sexual intercourse and there is nothing to suggest that the person is incapable of performing sexual intercourse'. In that regard, PW1 has issued Medical Certificate with reference to the accused as per Ex.P1 and his [PW1] signature is as per Ex.P1(a).
(b) PW14-Malathi.D, Scientific Officer, FSL, Madivala, Bangalore has deposed that, on 18.4.2015, she received the articles from Madivala Police station for scientific examination. After examination, she has opined as under:
1) Presence of seminal stain was not detected in item Nos. 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 15 and 16.
2) Blood in item Nos. 5 and 17 was of 'AB' group.20 Spl CC No.227/2015
Accordingly she has submitted the Report as per Ex.P8. The sample seal is as per Ex.P9. This witness identifies the sealed articles and they are marked as: MO-2-Scalp hair; MO-3-Pubic hairs; MO-4 Coronal Swab; MO-5- Urethral swab; MO-6-Blood sample; MO-7-Nail clippings, MO-8- Right thumb swab; MO-9: Right index finger swab; MO-10: Right middle finger swab; MO-11: Right ring finger swab; MO-12: Right little finger swab; MO- 13: Right thumb swab; MO-14: Left index finger swab; MO-15: Left middle finger swab; MO-16: Left ring finger swab; MO-17: Left little finger swab: MO-18: Blood sample.
(c) CW13 Dr.Mohan deposed as PW17 has stated that, on 1.4.2015, at about 11.45 P.M., she has examined the victim girl sent by Madivala Police with the history of sexual assault. On physical examination of the victim girl, she was moderately built and external genetelia appeared normal, no external injuries and hymen was intact. On dental examination, the age of the victim girl was around 7 years. She has collected the specimens with reference to the victim girl and handed over to the concerned police for FSL. She has issued Final Report and opined that, the age of the victim girl was 7 years old and on local genital examination, the evidence of signs of recent sexual intercourse was absent and the individual is not used to sexual intercourse. Accordingly, she has issued the Medical Certificate with reference to the victim girl as per Ex.P12.
21 Spl CC No.227/201525. Now coming to the official witness:
(a) CW17-Shivanna deposed as PW13. He was the then Head constable of Madivala police station. He was promoted as ASI at the time of giving his evidence. He deposed about apprehending of the accused at the instruction and order of the Investigating Officer-PW15 and the place of his taking of custody of the accused by PW13 was Hongasandra Main road. He has given his Report as per Ex.P7. He has performed his official duty as per the instruction of the Investigating Officer-PW15 , in that regard. Hence, answer of accused in 313 Statement that "he was in his house and police took him to the police station" etc., without cogent evidence does not support this defence.
(b) CW19- Nagarj.G- Police Inspector/Investigating Officer deposed as PW15. PW15 has specifically narrated the investigation process from receiving the complaint; registering case in cr.No.602/2015; submitting FIR; conducting spot mahazar;
recording the statement of the victim girl and subsequently taking her to the Learned Magistrate for getting her statement recorded under Sec.164 of Cr.P.C and apprehending the accused and his arrest and sending the victim girl and the accused for medical examination, recording of statements of other witnesses etc., and after completion of investigation, he has submitted charge-sheet. Thus, he [PW15] deposed about the investigation process and it is consistent evidence corroborated by the evidence of other material witnesses, as discussed above. However, minor defects can be ignored and they do not defeat the prosecution case, as the learned Public Prosecutor has advanced his arguments about evidence to 22 Spl CC No.227/2015 be appreciated as its entirety and minor discrepancies and minor defects in the investigation process can be ignored and that the very victim girl and other direct witnesses and the parents of the victim girl and her neighbours have supported the prosecution case. It is proof of guilt of the accused to convict him etc., and the same is acceptable argument.
26. The prosecution has brought on record the criminal act of the accused which forms an offence on the person of the victim girl who was aged about 7 years i.e., below the age of 12 years. The said offence committed in the manner as referred above, is certainly falls within the purview of Sec.9 of POCSO Act, 2012 i..e, aggravated sexual assault, specifically Clause (m) of Sec.9 of POCSO Act, 2012 i.e., "committing sexual assault on a child below the age of 12 years". The definition clause of "sexual assault"
specified in Sec.7 of POCSO Act, 2012, it reads thus:
"Sec.7 of POCSO Act-Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
So also, the prosecution has made out the case that the accused has committed the offence of outraging the modesty of the victim girl, which falls under Sec.354(A) of IPC, i.e., "sexual harassment". It includes punishment for sexual harassment and certainly it comes within the purview of Sec.354(A)(1)(i), which reads thus:
23 Spl CC No.227/2015"Sec.354(A)(1)(i): A man committing any of the following acts-
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii)..................
(iii)..................
(iv)....................
Sub-clause(2) of Sec.354(A) of IPC deals with the punishment clause, it contemplates that:
"Any man who commits the offence specified in clause (i) or clause(ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years or with fine, or with both".
It is important to refer the decision reported in AIR 2004 SC 1677 [Raju Pandurang Mahale Vs. State of Maharashtra], wherein ingredients pertaining to "outrage of modesty of female" is discussed. It reads thus:
"What constitutes an outrage to female modesty is nowhere defined. The essence of a woman's modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a woman removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such outrage alone for its object. As indicated above, the word 'Modesty' is not defined in IPC".
The learned Public Prosecutor pressed upon the corroborative evidence of victim girl, her friends, neighbours and 24 Spl CC No.227/2015 her parents and proving the case beyond the reasonable doubt that, the accused only was present at that place of incident on that day and time and misbehaved with the victim girl, amounting to outraging her modesty, and comes within the purview of sexual harassment under Sec.354A (1)(i) of IPC and aggravated sexual assault under Sec.9(m) of POCSO Act, 2012. He further argued on medical evidence that, the offence of sexual assault/rape is not as that of disease to be explained as "medical term". It is a legal term.
27. Dr/PW1 explained the competency of the accused who examined the accused. Dr/PW17 who examined the victim girl expressed the opinion. But, the allegations against the accused the guilt falling under Sec.9(m) of POCSO Act, 2012 which has been deposed consistently by the very victim girl and her friends PWs- 7 and 8 who were there at that spot of incident and supported the prosecution case, punishable under Sec. 10 of POCSO Act, 2012 which contemplates that:
"Sec.10- POCSO Act-Whoever commits aggravated sexual assault on the victim shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine".
Thus, facts and circumstances and the very act of the accused on the victim girl, forming offence, it does not cause any injury or no signs of sexual assault causing injury to be found, on her {PW3] body. So, evidence of any injury on her body [PW3] was not noted by the Doctor-PW17. So, the evidence of these doctors do support the prosecution case. Hence, it is on this count also, it is proved that, the accused aged person was having competency, came to 25 Spl CC No.227/2015 the house of CW7, where the victim girl and her friends only were observing the TV and there were no elderly persons in that house and he took advantage of such a situation when the children were enjoying their childhood of playing and then seeing of TV, specifically the programme of children and he [accused] violated their right and committed the offence on the victim girl, which is coming within the purview of Sec.9(m) of POCSO Act, 2012. The victim girl is a child below the age of 12 years and subjected to sexual assault by accused. The prosecution has discharged the initial burden in that regard by adducing the evidence of victim girl and her friends, eye witnesses and the persons heard of the act of the accused from the victim girl directly i..e, the person to whom the victim girl and the children immediately approached i.e., the neighbour PW5 and then her parents-PW2 and PW4; whose evidence is higher in rank than the hearsay evidence, believable, coming under Sec.6 of Evidence Act. This court shall presume Secs. 29and 30 of POCSO Act, 2012 which provide the statutory presumption to be raised in connection with the actus-reus and mensrea . Secs.29 and 30 of POCSO Act, 2012, reads thus:
"Sec.29 of POCSO Act, 2012- Presumption as to certain offences:- Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections. 3, 5, 7 and 9 of this Act, the Special Court shall presume that, such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved"
Sec. 30 of POCSO Act, 2012: Presumption of culpable mental state: (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but, it shall be a defence for the accused to prove 26 Spl CC No.227/2015 the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability About the defences tried to bring on record by the accused through his learned counsel i.e., (1) Assault and injury sustained by the accused on the previous day of the incident, as he addicted to drinks.
(2) TV Sound being un-tolerable and he came there only to tell them to reduce the sound of the T.V (3) His habit of drinks and quarrel with his own wife and neighbours annoyance and quarrel and beating him and causing injury to him, etc.
28. But, none of these inconsistent defences have been substantiated by putting suggestions to the said material witnesses to bring on record in that regard, to believe the same as real and strong defence to rebut the prosecution case. Nor he has deposed by contraverting the case of prosecution by rebutting the case that he had no sexual intent and that he did not commit the said sexual act. Even he did not adduce the evidence of material witnesses to support his case proving that he was innocent; he did not commit the said offence, nor he had sexual intent etc., and that he has been falsely implicated in this case. The learned Public Prosecutor rightly pressed on the principles and guidelines having legal force which are acceptable that, "such inconsistent pleas of defence, if not substantiated, discharging the onus by adducing cogent evidence to rebut the prosecution case, by availing an opportunity of defence under Secs. 29 and 30 of POCSO Act, 2012, 27 Spl CC No.227/2015 then benefit shall be given to the prosecution case that, such defeat of non-rebutting the case of prosecution and non-proving the defence" etc., is also one of the circumstances to link the guilt of the accused. So on this count also, the prosecution has proved the guilt of the accused attracting Sec.10 of POCSO Act, 2012 and Sec.354A of IPC. Thus, the accused has not rebutted the case so that benefit of doubt can be extended in his favour. Therefore, viewed from the above discussions, it is clear that, the prosecution has proved the guilt of the accused, beyond all reasonable doubt and the accused is liable for punishment under the said Sections.
Hence, POINT NOS.1 AND 2 are answered in the AFFIRMATIVE.
29. POINT NO.3:- In the result, I proceed to pass following:
ORDER Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences coming with the purview of Sec.9(m) of POCSO Act, 2012, punishable under Sec.10 of POCSO Act, 2012 and 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 14th day of March, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.28 Spl CC No.227/2015
17.3.2018 ORDER REGARDING SENTENCE The accused/convict is produced from the judicial custody.
The learned counsel for the accused and the learned Public Prosecutor are present. Heard further arguments on sentence. The learned counsel for the accused has specifically stated that, there is no evidence placed on record by the prosecution that, due to the incident, how the future of the victim girl would be affected. No materials are placed in that regard about any loss or injury to the victim girl. The accused is aged person more than 60 to 62 years and he has already undergone a longer duration in the prison. He prays, under Sec.354 of IPC, only fine may be imposed and under the POCSO Act, minimum sentence may be awarded and thereby, sought leniency to be extended.
On the other hand the learned Public Prosecutor has specifically argued that, the accused no-doubt aged about 58-60 years, has committed heinous offence, which has been proved about the lust of the accused, by the prosecution beyond all reasonable doubt and it was on the person of the minor victim girl who was aged about 7 years and due to which, the victim girl and her parents had to change their locality, since it was affecting them and their reputation in the society. Hence, the accused is not entitled for any leniency and maximum punishment has to be awarded. So, also, he has further argued that, because of such incident and status of the victim girl as minor, the victim girl is entitled for victim compensation and prayed to award victim compensation to be payable under the Government Scheme.
29 Spl CC No.227/2015Therefore, considering the gravity of the said offences coming within the purview of Sec.9(m) of POCSO Act, 2012 the aggravated sexual assault, Sec.10 of POCSO Act, 2012 attracted, for awarding the punishment and it is applicable, as it is higher in degree than that of punishment to be awarded under Sec.354(A)(2) of IPC, as Sec.354(A)(2) of IPC provides the Rigorous imprisonment for a term which may extend to 3 years. But, Sec. 10 of POCSO Act, 2012 provides for awarding of punishment with imprisonment for a term which shall not be less than 5 years and which may extend to 7 years and also liable for fine. Therefore, Sec.42 of POCSO Act, 2012, shall prevail in this regard. Sec.42 of POCSO Act, 2012 provides for alternative punishment, which reads thus:
" Alternative punishment:- Where an act or omission constitute an offence punishable under this Act and also under Sections 166-A, 354-A, 354-B, 354-C, 354-D, 370, 370-A, 375, 376, 376-A, 376-C, 376-D, 376-E or Section 509 of the Indian penal Code, then, notwithstanding anything contained in any law for the time being in force, the offender found guilt of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree".
Therefore, though conviction order is for the offence under definition clause of Sec.9(m) of POCSO Act, 2012, punishable under Sec.10 of POCSO Act, 2012 and Sec.354(A)(2) of IPC, but, considering the facts and circumstances of the case and Sec.42 of POCSO Act, 2012, prevailing, the accused is liable for imprisonment for minimum period of 5 years with fine of Rs.3,000/-, under Sec.10 of POCSO Act, 2012, which is higher than that of Sec.354(A)(2) of IPC. In the result, I proceed to pass the following:
30 Spl CC No.227/2015SENTENCE The accused/convict shall undergo Imprisonment for a period of 5 years, with fine of Rs.3,000/- under Sec.10 of POCSO Act, 2012, which is higher in degree than that of Sec.354(A)(2) of IPC. In-default of payment of fine amount, the accused shall undergo simple imprisonment for a period of 3 months.
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.
As regards the victim compensation, the authorized police officer/Police Inspector of the complainant- Madivala Police station, is directed to submit the Report regarding the status of the victim girl and her parents/guardian, to recommend the award of compensation for having suffered loss/injury, as a result of the offence, by the victim girl, under Rule 7(2) of POCSO Rules, 2012 r/w Sec. 33(8) of POCSO Act, 2012 and under Sec.357A (2) and (3) of Cr.P.C, within 25 days from the date of this order.
MO-1 i.e., the DVD is ordered to be annexed to Ex.P4 i.e., the Statement of the victim girl/PW3 recorded by the Learned Magistrate under Sec.164 of Cr.P.C.
31 Spl CC No.227/2015The other MOs-2 to 18 being worthless are ordered to be destroyed after the appeal period is over.
Copy of this Judgment and order on Sentence shall be supplied to the accused forthwith.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 17th day of March, 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 Dr.G.Babu Rao CW12 21.11.2015
Pw.2 Rajeshwari CW1 21.1.2016
PW.3 Victim girl CW2 21.1.2016
PW.4 Manjunath.M CW3 26.4.2016
PW.5 Shivananda CW8 14.9.2017
PW.6 Subbanna CW10 14.9.2017
PW.7 Murali Mohan CW4 27.10.2017
PW.8 Yuvaraj CW5 27.10.2017
PW.9 Uma CW6 27.10.2017
PW.10 Sunanda CW9 24.1.2018
PW.11 Bhanu Prakash CW15 24.1.2018
PW.12 Meenkashi CW14 24.1.2018
PW.13 Shivanna.G CW7 30.1.2018
32 Spl CC No.227/2015
PW.14 Malathi.D Additional 5..2.2018
witness
PW15 Nagaraj.G CW19 5.2.2018
PW16 Subbalakshamma CW16 9.2.2018
PW17 Dr.Mohana CW13 15.2.2018
Documents marked for the prosecution:
Ex.P1 Medical Report of the accused
Ex.P1(a) Signature of PW1
Ex.P1(b) Signature of PW15
Ex.P2 Complaint dated: 1.4.2015
Ex.P2(a) Signature of PW2
Ex.P2(b) Signature of PW15
Ex.P3 Spot Mahazar
Ex.P3(a) Signature of PW2
Ex.P3(b) Signature of PW6
Ex,P3(c) Signature of PW15
Ex.P4 Statement of PW3/ victim girl recorded under
Sec.164 of Cr.P.C by the Learned Magistrate
Ex.P4(a) Signatures of PW3/victim girl
Ex.P5 Study Certificate of PW3/victim girl issued by
H.M/ Principal, of Brahmagiri Vidya Mandir, Hongasandra, Bangalore, showing the date of PW3/victim girl as 19.4.2008 Ex.P6 Statement of PW3/victim girl given before the Co-ordinator, SJPU Ex.P6(a) Signature of PW12 Ex.P6(b) Signature of PW16 33 Spl CC No.227/2015 Ex.P7 Report of PW13 given before the Police Inspector of the complainant police station regarding tracing out the accused and producing him before the Police Inspector of the complainant police station Ex.P7(a) Signature of PW13 Ex.P7(b) Signature of PW15 Ex.P8 FSL Report Ex.P8(a) Signature of PW14 Ex.P9 Sample Seal Ex.P9(a) Signature of PW14 Ex.P10 FIR Ex.P10(a) Signature of PW15 Ex.P11 Report given by H.C 3904 Ravindra.K of the complainant police station regarding collecting the articles of the victim girl and the accused from St.John's Hospital and producing the said articles before the Police Inspector of the complainant police station Ex.P11(a) Signature of PW15 Ex.P11(b) Signature of H.C 3904 Ravindra.K Ex.P12 Medical Report of PW3/ victim girl Ex.P12(a) Signature of PW15 Ex.P12(b) Signature of PW17 Material objects marked for the prosecution:
MO-1 DVD
MO-2 Scalp hair
MO-3 Pubic hairs
34 Spl CC No.227/2015
MO-4 Coronal swab
MO-5 Urethral Swab
MO-6 Blood sample
MO-7 Nail clippings
MO-8 Right thumb swab
MO-9 Right index finger swab
MO-10 Right middle finger swab
MO-11 Right ring finger swab
MO-12 Right little finger swab
MO-13 Right thumb swab
MO-14 Left index finger swab
MO-15 Left Middle finger swab
MO-16 Left ring finger swab
MO-17 Left little finger swab
MO-18 Blood sample
Witness examined, documents and MOs marked for the accused: NIL [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
35 Spl CC No.227/201514.3.2018 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 coming with the purview of Sec.9(m) of POCSO Act, 2012, punishable under Sec.10 of POCSO Act, 2012 and 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.
17.3.2018 Accused produced from judicial custody.
Sentence pronounced in open court:
[ Vide separate detailed Sentence] The accused/convict shall undergo Imprisonment for a period of 5 years, with fine of Rs.3,000/- under Sec.10 of POCSO Act, 2012, which is higher in degree than that of Sec.354(A)(2) of IPC. In-default of payment of fine amount, the accused shall undergo simple imprisonment for a period of 3 months.
36 Spl CC No.227/2015
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.
As regards the victim compensation,
the authorized police officer/Police
Inspector of the complainant- Madivala
Police station, is directed to submit the
Report regarding the status of the victim girl and her parents/guardian, to recommend the award of compensation for having suffered loss/injury, as a result of the offence, by the victim girl, under Rule 7(2) of POCSO Rules, 2012 r/w Sec. 33(8) of POCSO Act, 2012 and under Sec.357A (2) and (3) of Cr.P.C, within 25 days from the date of this order.
MO-1 i.e., the DVD is ordered to be annexed to Ex.P4 i.e., the Statement of the victim girl/PW3 recorded by the Learned Magistrate under Sec.164 of Cr.P.C.37 Spl CC No.227/2015
The other MOs-2 to 18 being worthless are ordered to be destroyed after the appeal period is over.
Copy of this Judgment and order on Sentence shall be supplied to the accused forthwith.
[YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.38 Spl CC No.227/2015