Bangalore District Court
SPL.C/256/2014 on 29 September, 2016
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
Dated this the 28th Day of September 2016
- : PRESENT: -
SMT. B.S.REKHA B.A. Law., LL.M.
L Additional City Civil & Sessions Judge,
Bangalore.
SPECIAL C.C.No. 256/2014
COMPLAINANT :
The State of Karnataka
By Byatarayanapura Police Station,
Bangalore.
[Rep. by learned Public Prosecutor,
Bengaluru.]
/ VERSUS /
ACCUSED :
K.S. Ananda,
S/o. Krishnappa, 25 years,
R/at No.76, 4th Main, 10th cross,
Bapujinagar, Mysore Road,
Bengaluru 26.
Rep. Sri.H.V.Subramanya & Asso.]
1 Date of commission of offence 29-11-2010
2 Date of report of occurrence 01-12-2010
3 Date of arrest of Accused 03-12-2010
Date of release of Accused 19-02-2011
Period undergone in custody 16 days & 2 months
by Accused
2 Spl.CC.No.256/2014
4 Date of commencement of 27-06-2011
evidence
5 Date of closing of evidence 07-07-2015
6 Name of the complainant Sunitha Bai
7 Offences complained of Section 366, 376,
343 of IPC
8 Opinion of the Judge Accused is convicted
9 Order of Sentence As per the final order
JUDGMENT
The Police Inspector attached to the Byatarayanapura Police, Bangalore City, has filed this charge sheet against the accused for the offences punishable under Section 366-A, 376, 343 of I.P.C.
2. The case of the prosecution, in brief, is as under :
Cw.2 is the minor daughter of Cw.1-Sunitha Bai.
Cw.2 was of 16 years in the year 2010. On 29-11-2010 at about 6.00a.m., Cw.2 left the house for Vittal Coaching Centre for tuition, in Honda Activa bearing No.KA-01-EJ-6238 to the house of Cw.9-Anantharao Chauhan, the accused had kidnapped her with intent to 3 Spl.CC.No.256/2014 marry her forcibly and seduce her to sexual assault, where he wrongfully confined her till 02-12-2010. In the meanwhile Cw.1 had lodged complaint on 01-12-2010.
During the period of wrongful confinement accused had committed rape on her. On 02-12-2010 when he along with the victim girl was near Ambedkar College, Nagarabhavi Circle, at about 06.00p.m., Byatarayanapura Police traced them and brought them to Police Station and there by the accused committed the aforesaid offences.
3. The charge sheet was submitted to III ACMM Court and learned Magistrate after taking cognizance, committed this case to the Court of Sessions for trial. After registering the case in S.C.No.165/2011, it was entrusted to FTC-VII Court. The Presiding Officer of FTC- VII after following the procedure laid down under law framed charge under Section 366-A, 343 and 376 of IPC and read over to the accused. Accused has pleaded not guilty and claimed to be tried. Hence, posted for evidence on prosecution side. After recording the 4 Spl.CC.No.256/2014 evidence of Pw.1 to Pw.9, as per the orders of the Hon'ble High Court of Karnataka vide notification No.RSB:21/14 dated 14-02-2014 this case is transferred to CCH-55. As per the orders of the Hon'ble High Court of Karnataka vide notification No.RSB:67/14 dated 08-05-2014 this case is with drawn from CCH-55 and transferred to CCH-51 and is registered as Special Criminal Case in No. 256/2014. Subsequently, charge under the first head for offence under Section 366-A has been altered for offence under Section 366 of IPC after hearing on both sides.
4. On prosecution side got examined as many as 13 witnesses as Pw.1 to Pw.13 out of 21 charge sheet witnesses and got marked documents at Ex.P1 to Ex.P14 and MO1 to MO.4 the details of which are given in the annexure of this Judgment. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C, has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not 5 Spl.CC.No.256/2014 chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments on both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused had kidnapped Cw.2 minor daughter of Cw.1-
Sunitha Bai on 29.11.2010 at 06.00a.m. from nearby Vittal Coaching Centre, behind Geetha Ashram, Bapuji Nagar, Mysore Road, Bangalore on his two wheeler Honda Activa bearing Reg.No.KA- 01-EJ-6238 with intent to compel her to marry him and to seduce her to illicit intercourse and thereby committed the offence punishable under Section 366 of I.P.C. ?
2) Whether the prosecution has proved beyond reasonable doubt that accused had wrongfully confined her in the house of Cw.9-Anantharao Chauhan from 29.11.2010 to 02.12.2010 and thereby committed the offence punishable under Section 343 of IPC?
3) Whether the prosecution has proved beyond reasonable doubt that accused had 6 Spl.CC.No.256/2014 committed rape on Cw.2 during the aforesaid period of wrongful confinement and thereby committed the offence punishable under Section 376 of IPC?
4) What order?
7. My findings on the above points are as under:-
Point No.1 : In the Affirmative Point No.2 : In the Affirmative Point No.3 : In the Affirmative Point No.4 : As per final orders for the following REASONS
8. Point No.1 to 3:- In order to prove its case, prosecution has got examined Cw.4-Eshwara as Pw.1 who is the father of the victim had stated that in the year 2010, when they were residing in Bapuji Nagar, the victim was studying in 10th standard used to go to tuition at 06.00a.m till 07.30a.m., and thereafter she used to go to school at 08.30a.m. Generally her friend-Divya used to accompany her to the school daily. On 29-10-2010 his daughter went to the tuition, but she did not return up to 07.30 a.m., thereafter he sent his wife to verify at 7 Spl.CC.No.256/2014 spot, but she came and told that it was locked. Thereafter they went to the tuition and enquired. Then they enquired one Srinivas who is the Class Teacher of the victim. He told that both the victim and Divya have not attended the school.
9. On enquiry they came to know that one boy used to talk with Divya. Thereafter they lodged complaint. On the next day police brought Divya and on enquiry he came to know that one Anand had forcefully taken the victim, even though she requested not to take her. On the next day the police have brought the victim and the accused and the victim told that the accused had taken her to the relative's house. From 29-11-2010 till 01-12-2010 they were in that house, wherein the accused had forceful sexual intercourse. At that time the victim was aged 16 years and thereafter she was given to the custody of parents as per the court order.
10. During the course of cross-examination he had stated that his daughter used to go to school by 8 Spl.CC.No.256/2014 walk along with Divya to St.Michael High School. She was going to tuition at 06.00a.m., with Divya. He denied that four days prior to the incident the school teacher- Wilson called him and informed that the victim was with one guy in park. He shown ignorance that the victim was absent from 23-11-2010 to 06-12-2010. He denied that he wanted to marry his daughter with his sister's son-Deepak. He denied that they have arranged the engagement of the victim with Deepak. He admits that when his daughter came back, she brought a bag.
11. He admits that they are having mobile phone. The victim used the phone when she was in the house. He had not verified about the messages sent and received by the victim in mobile No.9980178980. He admits that his wife is having mobile No.8105322505. The victim used to utilize that phone and also they have not checked the messages. He denied that his daughter loved the accused and used to exchange the messages. He came to know that Divya also escaped with her friend-Manjunath. He came to know that his daughter 9 Spl.CC.No.256/2014 was with the accused when he enquired. The victim did not inform the place where she was kept. He admits that the Magistrate has handed over the victim to the custody of parents. He admits that he had not stated before the police about forceful sexual intercourse by the accused.
12. Cw.1-Sunitha Bai examined as Pw.2 has stated on par with the evidence of Pw.1 in her examination in -chief. She had stated that when she enquired-Divya, she told the incident.
13. During the course of cross-examination, she went to the tuition classes alone and found that it was locked. When she enquired with Teacher-Srinivas, he informed that from that day, Divya also found missing. She talked to the mother of Divya on the same day, but she was not aware of the incident. On 29-11-2010 itself mother of Divya came to the police station. Mother of Divya also lodged missing complaint. When she enquired in the school she came to know that Divya was talking to one Anand. She admits that from 26-11-2010 she did 10 Spl.CC.No.256/2014 not attend the school. According to her, she did not send her to school on 23-11-2010 as she was suffering from Swine flew.
14. They used to go to Gali Anjaneya Temple. She denied that she intimated that the victim was talking with some boy. She denied that Class Teacher-Wilson informed about this to them. She denied that they had decided to perform the marriage of the victim with one Deepak and due to this she left the house. With respect to the messages and use of mobile, similar suggestions are made with that of Pw.1.
15. During the course of cross-examination, she has stated that Cw.9 is not in talking terms with her. She shown ignorance that the victim had given the name as Sweet Mom and Sweet Dad for their mobile number. She admits that the victim was taken to hospital. She denied that they came to know that the accused and the victim loved with each other and for that purpose they wanted to perform the marriage of the victim with one 11 Spl.CC.No.256/2014 Deepak.
16. Cw.2-the victim examined as Pw.3 had stated that Pw.1 and Pw.2 are her parents, Cw.3 is her friend. In the year 2010 they were residing in Bapuji Nagar and studying in St.Michael High School. She used to go to school with her friends. She used to go to tuition between 06.00 to 07.30 a.m., with Divya. According to her, Divya introduced the accused as her brother and she confirmed her that he is her brother. Somebody advised her not to be a friend with Divya.
17. On the date of incident, Divya told that the tuition class will commence 5 minutes early and they will leave 5 minutes early. When they were going to tuition near Geetha Ashram, the accused and two persons were standing with bike. When she enquired she told to talk to them. Then both of them went near them. At that time the accused and Divya discussed and thereafter the accused had forcefully kidnapped her in bike. Divya was shouting, but the accused told that he will be back in 5 12 Spl.CC.No.256/2014 minutes.
18. Thereafter they have taken her to a house but it was locked. The accused had opened with key and nobody were in the house. When she enquired he asked her does Divya did not told anything. Then he told that he loves her and she demanded to leave her. He told that they have to stay there and she started crying. She requested him to hand over the phone, but the accused told that he was not having currency. The accused was demanding her opinion about the marriage. At that time the accused received one phone call and he told that her parents are preparing for their marriage. After 3 days the accused talked to his parents. When they were in that house for 3 days one Kumar, Raghu and Harish came to his house and told the name of accused as Anand.
19. They also told her that the accused loves her and they are going to perform their marriage. At that time she told that she wants to talk to her parents, but they told that they have lodged the complaint and if the 13 Spl.CC.No.256/2014 mobile is given, she will talk to her father and they will locate the mobile place. Then they told that they are going to bring new SIM. At that time she and accused were in the house. After bringing the new SIM, they told her to tell that only after the marriage she will come to house. She called her mother and they were forcing her to say as instructed by them. She told to her mother that somebody had kidnapped her and forcing her to marry. At that time her mother was crying. She told that she is not aware of the place.
20. One Hari was aware of Marathi language and she was talking with her mother in Marathi language and he understood what she said and immediately he snatched the mobile and disconnected. The accused has brought the food. On the next day the three friends of the accused came and the accused called his elder uncle and told that he brought a girl and he loves her and he is going to marry her and when he enquired about the age, the accused told that he is not aware of the age and she told that she is aged 16years. He told that if the girl has 14 Spl.CC.No.256/2014 crossed 18years then they could have performed the marriage. On the same day the elder uncle of the accused came to the house and he enquired her and thereafter he told that they are going to the police station on the next day. He also advised her to tell before the police if they enquire that she voluntarily came. They have also taken the mobile number of her father and called her father.
21. The elder uncle of the accused threatened her and left the place. The accused told that he is going to marry her at any cost. She requested the accused to take her to the home. They have also enquired about the assets of her father. On the next day, the accused told her that he is going to take her to her house and after she got ready, the accused called his elder uncle and they went in Omni car. Harish and Kumar were forcing her to tell that she is not kidnapped and she voluntarily came with the accused. Thereafter they went to near by bus stop and the accused enquired about the phone call. She requested the accused to send her to her house. 15 Spl.CC.No.256/2014 Thereafter the accused took her by walk near Ambedkar College at 06.00p.m., and thereafter the police have taken them to the police station.
22. Her relatives are there in the police station. She told about the incident. She told that she did not voluntarily went with the accused. Thereafter she was taken to medical examination and then to C.W.C. They have produced her to the Court, wherein the judge has enquired and she told that she is going to join her parents. She identified MO1 to MO4 which are her clothes.
23. In that house there was one kitchen, one hall, one room and one toilet in the said house. She was kidnapped from Geetha Ashram by the accused at 06.05a.m., and they reached that house at 07.00a.m. She did not take food on that day. The accused brought the food. When he went to take food he locked the door. According to her he had forcibly raped her. On the next day the friends of the accused came and thereafter they 16 Spl.CC.No.256/2014 took them to bus stop.
24. During the course of cross-examination she has stated that both she and Divya used to go together to the school and to tuition. She used the phone of her parents. She had viral fever before 29-11-2010 and she did not attend the tuition and the school. There are about 80 students in that tuition class. She admitted that she and accused went in the motor cycle. She shown ignorance that Divya went with her friend in the motor cycle. The people watched that they were going in the motor cycle. They traveled for one hour in the motor cycle i.e., about 15-20 kms.
25. They went towards Mysore road. It is suggested to this witness that in the house to which the accused had taken her there was a family. She denied that Harish and his wife were in that house. She denied that the accused, his friend-Harish and his wife and she went in train to Turuvekere and on the next day they returned. She admitted that accused was having mobile. 17 Spl.CC.No.256/2014 She admitted that she called her mother on Thursday from the mobile of the accused. They went to the police station on Thursday evening. She admitted that the elder uncle of the accused talked to her father.
26. She generally will not accompany any unknown persons. When they went to the police station, her uncle-Mahadev and her cousin-Nagesh Rao were in the police station and her parents came after 10 minutes. She denied that when they called her she told them that she loves the accused and she will go with him. She denied that she has sent several messages from her parents mobile. There are some suggestions made to this witness regarding her favourites. She cannot identify the house wherein she was kept. The accused told her to tell to the police that they went to Mangalore. She told that she has stated before the doctor as instructed by the accused.
27. She admitted that she told before the doctor that she loved the accused and she voluntarily stayed 18 Spl.CC.No.256/2014 with him for 2-3days. She admitted that when she went to the hospital, the police and her parents were with her and the accused did not accompany her. She denied the contents of the messages which were read over to her, to which she stated that the said message might have been went to the mobile of the accused. She had stated that she did not send that message. She admitted that there is a word I love you in the message. She admitted that message is sent from her mother's mobile to the mobile of the accused.
28. Even she admitted that from the mobile of her father also messages were sent. She admitted on many occasion she has sent messages from the mobile of her sister also. Further she has stated that looking to the timings and the date of the mobile that she has stated that it is not possible for her to send such messages because at 09.41 a.m., she will be in the class room and at 12.38p.m., the mobile will be with her father. She has categorically stated that there was no possibility of her sending those messages. Her parents are not aware to 19 Spl.CC.No.256/2014 send the message and her sister is not aware of the accused. She denied that she herself has send those messages to the accused. She denied that by knowing this love affair, her parents wanted to perform her marriage with the son of her aunt. There are some omissions suggested to this witness. According to her the accused had taken her on motor bike.
29. Cw.5-Mahadev Rao examined as Pw.4 has stated that he knows Pw.1 to Pw.3. About two years back, when the victim found missing, Pw.1 told that he is going to give the complaint and he came from Ramanagaram and went to Byatarayanapura police station. The police have prepared the mahazar at the spot. As Pw.1 and Pw.2 requested him and as a relative he accompanied them to the police station. The police have not given any written notice to him. The mahazar was prepared between 09.00a.m., to 11.00a.m.
30. Cw.6-Nagesh Rao examined as Pw.5 has stated that Pw.2 is his sister and Pw.1 is his brother-in- 20 Spl.CC.No.256/2014 law. Pw.3 is their daughter. Pw.2 called him and told him about the missing of her daughter. Thereafter they came to Byatarayanapura police station and he is also witness to the mahazar. The police have not given any notice to him.
31. Cw.3-Divya Shree examined as Pw.6 has stated that she was the classmate of the victim and there is a distance of ¼ K.M., between her house and the house of the accused. They used to go to the school and to the tuition together. She knows the accused. However she has stated that she had not seen the accused kidnapping the victim. She admitted that they used to go to Vittal Coaching Centre. She denies that in her presence the accused had kidnapped the victim. However she has stated that she went to the house of one Vasantha, who is her aunt at R.P.C.Layout as she is afraid and thereafter she came back on 30-11-2010. She had stated that the parents of Pw.3 enquired her.
32. Cw.12 Srinivasa Rao S. examined as Pw.7, 21 Spl.CC.No.256/2014 who is the Head Master of St. Michel High School has stated that in the year 2009 the victim was studying in 10th standard in their school. He had given the date of birth document as per Ex.P4. He has produced the Attendance register Extract as per Ex.P5 and Ex.P6. She was absent from the school from 26-11-2011 to 06-12- 2011. He showed ignorance about the reasons for her absence. He had not brought the original documents of Ex.P5 and Ex.P6.
33. Cw.13- Srinivas N is examined as Pw.8 had stated that he know the victim and Divya, who are his students. He is running Vittal Coaching Center, wherein these two are students. They used to attend his classes from 06.00a.m., to 07.30a.m. On 29-11-2010 the victim did not attended his tuition. On the same evening her parents came and enquired him and they told that she left the house at 06.00a.m., but she did not return. On 30-11-2010 he came to know about the filing of the complaint and he had given statement. He had not kept any documents to show about the attendance of the 22 Spl.CC.No.256/2014 tuition classes by the victim.
34. Cw.16-B.R.Venkteshwaralu Naidu examined as Pw.9 had stated that himself and Cw.17 and Cw.18 were deputed to arrest the accused and the victim. On 02-12-2010 they got information that at 06.00p.m., the victim and the accused were in Ambedkar College Bus stop and after arresting them they produced them before the Investigation Officer along with the report as per Ex.P7. He identified the accused. He was also deputed to seize the vehicle and he seized the vehicle and produced before the Investigation Officer along with report as per Ex.P8.
35. On that day he was on day duty between 08.00a.m., till 10.00p.m. No identification materials are given to him about the accused. He searched the accused along with the informants. He cannot say the name of the informants. The vehicle was seized from the house of one Ramanna.
23 Spl.CC.No.256/2014
36. Cw.14-Malathi.D., who is Scientific Officer examined as Pw.10 had stated that on 06-12-2010 she received seven articles with seal and she examined and found that there is no spermatozoa present on those articles. She had given the report as per Ex.P9.
37. Cw.15-Ramaiah examined as Pw.11 has stated that accused is his brother's son. The Honda Activa belongs to him. He had given that vehicle to the accused. He got released the vehicle after three days. He came to know that the accused loves a girl and he kidnapped her and a complaint was lodged in that regard.
38. Cw.9-Anantharao examined as Pw.12 has stated that about 2-3years back when he went to the police station, he saw the accused. The father of the victim is his wife's brother. He shown ignorance that the accused and the victim have come to his house. According to him they have not stayed in his house. He is not aware about the handing over of the key of the house.
24 Spl.CC.No.256/2014
39. Cw.13-R.Mantaiah examined as Pw.20 has stated that on 01-12-2010 Pw.1 had given complaint by saying that Pw.3 is missing along with Pw.6, one Anand had kidnapped her and he registered the case and send the FIR to the Court.
40. The documents relied upon by the prosecution are Ex.P1 is the complaint, Ex.P2 is the mahazar, Ex.P3 is the statement of Pw.6, Ex.P4 is the document relating to the date of birth of the victim, Ex.P5 is the of Register of attendance extract, Ex.P7 and Ex.P8 are the reports, Ex.P9 is the FSL report, Ex.P10 is the statement of K.Ramaiah, Ex.P11 is the photographs of the vehicle, Ex.P12 is the statement of Anantha Rao Chauhan, Ex.P13 is the spot mahazar, Ex.P14 is the FIR.
41. The counsel appearing for the accused had vehemently contended that the sections 342 does not attract to this case because the period of detention alleged is less and as there is messages sent by the girl shows that it is love affair case and hence question of 25 Spl.CC.No.256/2014 kidnapping is also not proved and with respect to rape he contended that there are no materials on record to show the rape as per the medical record and the evidence of the witnesses the court has to consider these aspects.
42. In this case on perusal of the materials available on record it could be seen that the prosecution alleges that this accused had eloped the victim girl when she went to the tuition along with one Divya. According to the victim, her friend-Divya was talking with the accused and she introduced him as her brother. When one day the mother of Divya came to the school along with the accused she came to know that accused is the brother of Divya. Further the mother of the victim used to pick and drop her to the tuition, but whenever Divya came to the house they used to go together to the tuition by walk. It is contended that when they were going near Geetha Ashram, the accused and other two persons were standing with the bike and when she was standing and after discussion between the accused and Divya the 26 Spl.CC.No.256/2014 accused forcibly took her in the motor cycle. It is also contended that the accused took her to a house under lock and he opened the lock and when the victim questioned, he asked whether Divya had not intimated about the love affair.
43. In this case this evidence of the victim clearly shows that the accused had forcibly kidnapped her and also he threatened her with dire consequences. Even she went to the extent of saying that there are three friends of the accused who came and introduced by saying that the accused loves her and also they are going to perform her marriage with him.
44. The main defense of the accused is that the victim used to send messages to him from the mobile of her mother and father and he had also confronted the number of the mobile messages which alleged to have been sent by the victim. However the victim stated that those messages are sent at the time when she was in the class room and they are not true messages. She has 27 Spl.CC.No.256/2014 specifically stated that definitely those messages have been sent from the said mobile, but she has not sent those messages.
45. Further it is questioned that as to why she has not protested the accused when he was eloping her to different places. It is also suggested by the defense that when the parents of the victim questioned her, she told her that she used to love him and she voluntarily accompanied with him. Further in this case medical examination report of the victim is produced shows that when the victim was taken to K.C.General Hospital, Dr.Malathi Bai had written the contents as stated by her. She stated before the doctor that she loved the accused and hence she herself went along with the accused. Further she stated that she told this information as stated by the accused. However at that time the accused was not with her and her parents were with her.
46. In this case on perusal of the mobile messages, it could be seen that those messages were 28 Spl.CC.No.256/2014 sent and exchanged between the lovers only. Further she categorically denied about the sending of those messages. She also stated that when she was not having mobile, there was no question of sending the messages. It is also suggested that the marriage of this victim was fixed with her aunt's son and in that regard she herself has went along with the accused. Even when she is produced before the Magistrate also she told that she is going along with her parents.
47. In this case the father of the victim had stated that when the victim was found missing and when he went to the school and enquired, some people told that the victim is moving with one boy and Divya told the accused had forcibly taken the victim. Even when he enquired with the teacher, he also told the same thing. Even he has stated that the accused had forcible sexual intercourse with the victim. It is undisputed that this victim was using the mobile of her parents and sister whenever she require. She denied about the sending of messages from the mobile of the accused. 29 Spl.CC.No.256/2014
48. Pw.2 who is the mother of the victim also stated on par with the evidence of Pw.1. When she enquired with the mother of Divya, she showed ignorance about this incident. She came to know that the victim used to talk with the accused when she enquired in the school. However they have not intimated the same to the police.
49. Pw.4 and Pw.5 are the witnesses to the mahazar. Pw.7 is the girl who was with the victim when she was kidnapped. Though she had denied about the kidnapping of the victim, but she has stated as she was in fear from the incident she went to her aunt's house. Then remains the evidence of the Investigation Officer and the teachers who conducted tuitions and the teacher who issued the attendance certificate and the age certificate are examined.
50. The counsel appearing for the accused has relied upon the following citations: 30 Spl.CC.No.256/2014
1. AIR 1995 SC 2169-between Shyam & another Vs. State of Maharashtra, wherein it is held that: "prosecutrix not putting up struggle or raising alarm while being taken away by accused-Prosecutrix appearing to be willing party to go with accused on her own-Culpability of accused not established-Conviction set aside".
However in the present case on hand, it could be seen that the victim was kidnapped when she was going to the tuition and even her friend also raised alarm, but the accused had taken away the victim by saying that he will be back in 5 minutes. Naturally when a girl is kidnapped, raising alarm by her cannot be expected because of the circumstances.
2. (2014) 10 SCC 254-between Munna Vs. State of Madhya Pradesh, wherein it is held that: "Section 376 and 450-Rape and house trespass-Inherent infirmities in statement of prosecutrix-veracity of such statement, doubtful-Discrepancies in prosecution version-Benefit of doubt- Entitlement to-Conviction reversed". 31 Spl.CC.No.256/2014 In para-11 it is further held that: "while absence of injuries or absence or raising alarm or delay in FIR may not by itself be enough to disbelieve the version of the prosecutrix, but in that case, it was doubtful".
There are no discrepancies in the evidence of prosecutrix as contended in the citation.
3. (2014) 2 SCC 395-between Hemraj Vs. State of Hariyana, wherein it is held that:
"Section 376-Rape-Evidence of prosecutrix- Evidentiary value of-What is-Looking into other evidence-When required-Duty of court while relying on evidence of prosecutrix- Held, in a case involving charge of rape, evidence of prosecutrix is most vital-If it is found credible, if it inspires total confidence, it can be relied upon even sans corroboration-Court may, however, if it is hesitant to place implicit reliance on it look into other evidence to lend assurance to it, short of corroboration required in case of an accomplice-Such weight is given to prosecutrix's evidence because her evidence 32 Spl.CC.No.256/2014 is on a par with evidence of injured witness, which seldom fails to inspire confidence-Having placed prosecutrix's evidence on such a high pedestal, it is duty of the court to scrutinize it carefully, because in a given case on that lone evidence a man can be sentenced to life imprisonment-Court must, therefore, with its rich experience, evaluate such evidence with care and circumspection, and only after its conscience is satisfied about its creditworthiness, rely upon it".
In the present case on hand, the evidence of prosecutrix is very firm and definite and had no infirmity.
4. 2014 Crl.L.J.641-between Mandan Lal alias Sonu alias Tidu Vs. State of Himachal Pradesh, wherein it is held that: "Sections 366, 375 Abduction and rape-Proof of- Prosecutrix seventeen years and two months old-Prosecutrix knew accused from before-They were having relationship for last one year, which was objected to by her parents-Accused was visiting house of prosecutrix-Letters were exchanged-Telephone calls were made-When 33 Spl.CC.No.256/2014 telephone got disconnected by father of prosecutrix, accused gave her mobile phone-She was not opposed to marrying accused-Parents were objecting to same-She was dressed like a bride at the time of recovery-No marks of injury found on her body but signs of recent sexual intercourse present-Consent present as she stayed with accused for more than ten days without raising alarm-She was not under any psychological pressure, inducement or allurement of any nature-Abduction and rape, not proved".
51. In the present case on hand, the counsel appearing for the accused had vehemently contended that as the girl and the boy were loving each other and also the girl had sent messages, which shows that she was intended to marry him. Even there are suggestions with regard to the mobile messages. The girl had stated that when ever the messages were alleged to have been sent she was in the college and it was in the mid-night and at that time there was no possibility for her to send the messages. It is undisputed that the victim was not 34 Spl.CC.No.256/2014 having her own mobile, but she was using the mobile of her parents and sister. Though she might have sent the messages, but that will not authorize the accused to entice her for the purpose of marriage and rape.
52. In this case the counsel appearing for the accused submitted that as the victim was not in the custody of the accused for 3 or more days, section 342 does not attract. In this case, the victim was abducted on 29-11-2010 and she was secured on 02-12-2010. If these dates are taken into consideration, it will be three or more days. Thus, his submission cannot be accepted.
53. With respect to the allegation of kidnap, the counsel contended that she herself went with him and she did not raise any hue and cry and hence as she was consenting party, question of kidnap does not arise. However the victim had stated that on the date of incident Divya told that the tuition classes will be 5 minutes earlier and by telling her mother, the victim went and when they were on the way to tuition, near 35 Spl.CC.No.256/2014 Geetha Ashram, the accused and two persons were standing with bike, suddenly the accused had forcibly dragged and made her to sit in the bike and taken her to the house. This shows that the accused had left any option to the victim to raise hue and cry. Further during that time chances of movement of public also will be less. Hence, this contention that the victim went with the accused with consent is not established.
54. With respect to the sending of the messages by the victim those messages might or might not have been send by the victim. Further it cannot be expected that parents or sisters of the victim have send the messages. Even if the messages are sent by the victim that will not authorize the accused to entice or kidnap the victim. Further with respect to the vehicle also, the counsel appearing for the accused had stated the allegation of taking the victim on the motor cycle or bike is not properly stated, to which as taking away the girl is undisputed, question of these lapses does not arise. 36 Spl.CC.No.256/2014
55. With respect to the allegation of rape, as the date of birth of victim is 20-07-1995, to the date of incident it will be 15 years, 4months and 9 days and hence, she cannot be considered as consenting party. Even the FSL report though says no symptoms of presence of spermatozoa. The document dated 05-01- 2011 issued by Dr.Parvathi Bai shows that there was sexual assault might have been occurred. The evidence of victim coupled with this document proves the allegation of rape.
56. With respect to the place of incident, the counsel appearing for the accused submitted that the said house belongs to the relative of the victim and hence it cannot be imagined that the said house was given to the accused to particular act. However the witness examined on behalf of the prosecution does not deny that the key was given, but he says that he was not aware of this. Thus, the contention of the accused counsel cannot be accepted.
37 Spl.CC.No.256/2014
57. In this case it could be seen that the contention of the accused is that the victim voluntarily went with him. However if at all the victim would have stated that she herself voluntarily went with him, the matter would have been different. The victim has specifically stated that the accused had forcibly taken her to a house and thereafter they went to different places as his elder uncle and friends wanted to perform their marriage, but due to the young age of the victim they did not perform the marriage. The parents of the victim as well as their relatives have categorically stated that the accused had kidnapped the victim. The victim is firm in her evidence that the accused had kidnapped and raped her. Further the age of the victim as on the date of the incident was below 16years. Hence, she cannot be considered as consenting party, even if the allegations of the accused could be considered. Even he wrongfully restrained her in the house. Thus, in my opinion the materials available on record shows that the act of the accused in committing the offence punishable 38 Spl.CC.No.256/2014 under Section 366, 376 and 343 of IPC. The prosecution has proved beyond all reasonable doubt the offences alleged against the accused. Hence, I hold point No.1 to 3 in the Affirmative.
58. Point No.4:- In view of my foregoing reasons, I proceed to pass the following:
ORDER Under Section 235(2) of Cr.P.C., the accused is found guilty of the offences punishable under Section 366, 343, 376 of I.P.C.
To hear regarding the sentence.
(Dictated to the Judgment Writer, transcribed and typed by her and also computerized to my dictation by her. It is then corrected and pronounced by me in the open Court on this the 28th Day of September 2016.) (B.S.REKHA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.39 Spl.CC.No.256/2014
ORDER ON SENTENCE The accused not produced. The advocate for accused submitted that he will represent on his behalf and the sentence may be pronounced.
Heard the learned Public Prosecutor. The learned Public Prosecutor submitted that as the offence is heinous in nature, the maximum punishment shall be given.
Heard the counsel appearing for the accused. He submitted that both the parents of the accused are handicapped and there are no body to look after the parents and by considering all these aspects lenient view may be taken.
However, the punishment prescribed for offence under Section 376 of IPC in case if the girl is below 16years of age is ten years with fine. The court has to impose S.I., for ten years with fine of Rs.5,000/-, for Section 366 of IPC the accused shall under go S.I., for 40 Spl.CC.No.256/2014 one year and for Section 343 of IPC the accused shall under go S.I.,. for three months.
Thus in my opinion, the Court has to impose sentence of ten years with fine of Rs.5,000/- in default to under go S.I. for three months for Section 376 of IPC and three months for Section 343 of IPC and one year for Section 366 of IPC. The sentence shall run concurrently.
Hence, I proceed to pass the sentence as under:
ORDER Acting under Section 235(2) of Cr.P.C. accused is hereby convicted for the offences punishable;
a)for Section 376 of I.P.C he is sentenced to undergo Simple Imprisonment for a term of 10 years and shall also be liable to fine of Rs.5,000/-, in case of default to pay the fine amount, he shall undergo Simple Imprisonment for a period of three months.
b)for Section 343 of I.P.C he is sentenced to undergo Simple Imprisonment for a term of three months.41 Spl.CC.No.256/2014
c)for Section 366 of I.P.C he is sentenced to undergo Simple Imprisonment for a term of one year.
The J.C. period of accused from 03- 12-2010 to 19-02-2011 (in all 2 months and 16 days) be set off as laid down under Section 428 of Cr.P.C.
After deposit of fine amount, Rs,4,000/- is ordered to be paid to P.W-3, the prosecutrix as compensation after appeal period is over and the remaining amount will be considered as fine to the State.
Issue copy of judgment free of cost to the accused forthwith.
MO1 to MO4 are being worthless, shall be destroyed after expiry of appeal period.
As the victim requires compensation and the accused is not in a position to give compensation, this judgment is to be sent to Karnataka State Legal Service Authority 42 Spl.CC.No.256/2014 to award compensation under Section 357-A of Cr.P.C.
(Computerized to my dictation by the Judgment Writer. It is then corrected and pronounced by me in the open court on this the 29th Day of September 2016.) (B.S.REKHA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW 1 Eshwar Rao Cw.4 27-06-2011 PW 2 Sunitha Bai Cw.1 07-07-2011 PW 3 Sowmya Cw.2 07-07-2011 PW 4 Mahadeva Rao Cw.5 21-09-2011 PW 5 H. Nagesh Rao Cw.6 21-09-2011 PW 6 Kum Divyashree Cw.3 08-11-2011 PW 7 Srinivasa Rao S. Cw.12 18-11-2011 PW 8 Srinivas N Cw.13 18-11-2011 PW 9 B.R. Venkateshwaralu Cw.16 15-12-2011 Naidu PW 10 Malathi D Cw.14 06-02-2015 PW 11 Ramaiah Cw.15 06-02-2015 PW 12 Anantha Rao Cw.9 06-02-2015 PW 13 R. Mantaiah Cw.20 07-07-2015 43 Spl.CC.No.256/2014 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Complaint Pw.2 07-07-2011 Ex.P 1a Signature of PW2 Pw.2 07-07-2011 Ex.P 1b Signature of PW13 Pw.2 07-07-2015 Ex.P 2 Spot Mahazar Pw.4 21-09-2011 Ex.P 2a Signature of PW4 Pw.4 21-09-2011 Ex.P 2b Signature of PW5 Pw.5 21-09-2011 Ex.P 3 Statement of PW6 Pw.6 08-11-2011 Ex.P 4 Date of birth Pw.7 18-11-2011 certificate Ex.P 4a Signature of PW7 Pw.7 18-11-2011 Ex.P 5 Attendance Register Pw.7 18-11-2011 Extract for Nov. 2010 Ex.P 5a Signature of PW7 Pw.7 18-11-2011 Ex.P 6 Attendance Register Pw.7 18-11-2011 Extract for Dec.2010 Ex.P 6a Signature of PW7 Pw.7 18-11-2011 Ex.P 6b Name of prosecutrix Pw.7 18-11-2011 in Ex.P6 Ex.P 7 Report of PW9 Pw.9 15-12-2011 Ex.P 7a Signature of PW9 Pw.9 15-12-2011 Ex.P 8 Report of PW9 Pw.9 15-12-2011 Ex.P 8a Signature of PW9 Pw.9 15-12-2011 Ex.P 9 FSL report Pw.10 06-02-2015 Ex.P 9a Signature of PW10 Pw.10 06-02-2015 Ex.P 10 Statement of PW11 Pw.11 06-02-2015 Ex.P 11 Photos of vehicle Pw.11 06-02-2015 Ex.P 12 Statement of PW12 Pw.12 06-02-2015 Ex.P 13 Mahazar Pw.12 06-02-2015 44 Spl.CC.No.256/2014 Ex.P 14 FIR Pw.13 07-07-2015 Ex.P 14a Signature of PW13 Pw.13 07-07-2015 LIST OF MATERIAL OBJECTS MARKED MO1 Panty Pw.3 07-07-2011 MO2 Chudidar bottom Pw.3 07-07-2011 MO3 Chudidar top Pw.3 07-07-2011 MO4 Chudidar Dupatta Pw.3 07-07-2011 LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE Ex.D1 Portion of Statement Pw.3 18-07-2012 of victim LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
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L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
45 Spl.CC.No.256/2014*** 46 Spl.CC.No.256/2014