Bangalore District Court
State By H.S.R.Layout Police vs Premananda on 23 March, 2017
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS JUDGE AT
BANGALORE CITY (CCH-55)
Dated this the 23rd day of March, 2017
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY.
SPL.C.C.NO.182/2013
COMPLAINANT State by H.S.R.Layout Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Premananda,
Son of Sathyanarayana Roy,
Aged 21 years,
Residing at: Rented house of Ramesh,
Bhoganahalli Grama, Varthur Hobli,
Bangalore.
Permanent Resident of:
Kachari Town, Bogasaara Post,
Singuru Thana, Patna, Bihar.
(By Sri.Mohammed Pasha.C-Advocate)
1. Date of commission of offence 23.06.2013
2. Date of report of occurrence of 24.06.2013
the offence
3. Date of arrest of accused 25.06.2013
4. Date of release of accused Accused is in Judicial custody
from 25.06.2013 to till today i.e.,
till 23.03.2017
2 Spl CC No.182/2013
5. Period undergone in custody 3 Years, 8 Months and 29 Days
by the accused
6. Date of commencement of 17.8.2015
evidence
7. Date of closing of evidence 7.3.2017
8. Name of the complainant Sri.Brijendralal Mishra-father of
the victim girl
9. Offences complained of Sec.376 of IPC and Secs. 3, 4,
and 7 of POCSO Act, 2012.
10. Opinion of the Judge In exercise with the
powers conferred upon me
under Criminal Procedure
Code, the accused is acquitted
of the offences punishable
under Secs.366 and 376 of IPC
and under Sec.5(m) r/w Sec.6
of POCSO Act, 2012.
3 Spl CC No.182/2013
JUDGMENT
Police Inspector, HSR Layout Police Station, Bangalore, has submitted charge sheet in Crime No.334/2013 against the accused for the offences punishable Under Sec.376 of IPC and Secs. 3, 4, and 7 of POCSO Act, 2012.
2. The prosecution case, briefly stated:
That on 24.6.2013 the complainant lodged a Complaint as per Ex.P1 alleging that, on 23.6.2013 at about 3 P.M., he was on duty, his wife who was pregnant and on complaining of labour pain, she was taken to Varthur Hospital by Kamalamma, the owner of his house, later he went to the Hospital to see his wife, at that time, his elder daughter/victim girl herein ed 4 ½ years was not found in the house, and thereafter in the night, he came to know that, his daughter was in his neighbour's house and took her and she complained of pain in her private part, therefore, he took his daughter to Varthur Hospital, wherein they did not see his daughter and he admitted her to Vyedhi Hospital, Whitefield wherein the Doctor of Vyedhi Hospital informed that, his daughter was subjected to sexual assault and handed over the child to him at 6.30 or 7.00 A.M., on 24th June, 2013. Later he went to Varthur Police Station, however due to jurisdiction, the Varthur police advised him to approach HSR Layout police station, on the way to HSR Layout Police Station, he along with a police accompanied enquired about the boy who has committed the sexual assault, they came to know from their neigbhours that, one Premanand [who is the accused herein] has committed the offence.4 Spl CC No.182/2013
Accordingly, Complaint-Ex.P1 filed before the HSR Layout Police Station on 24.6.2013 at 12.00 P.M.
3. On the basis of the said complaint, the complainant police have registered FIR as per Ex.P11 in Cr.No.334/2013 for the offence punishable under Sec.376 of IPC. Thereafter, criminal law was set in motion. The Investigating Agency took up investigation. The victim girl was sent for medical examination and spot mahazar conducted, the accused was arrested on 25.6.2013 and he was also sent for medical examination and the articles seized were sent for FSL examination. After completion of the investigation formalities, at the time of filing the charge-sheet, the Investigating Officer came to know that, the Victim girl was minor, therefore, the alleged offence of rape also comes with the provisions of Secs. 3, 4 and 7 of POCSO Act, 2012 accordingly, those Sections have been included and charge-sheet has been filed against the accused.
4. The accused was secured on 25.6.2013 and since then he has been in judicial custody. He is represented by the counsel of his choice. After production of the accused, the copies of the prosecution papers [charge-sheet] was given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5. At this stage, it is pertinent to note that, this Case earlier was on the file of 50th Addl. City Civil and Sessions Judge, Bengaluru [CCH:51]. It is evident from order sheet that on 17.2.2014, Charge was framed by the Presiding Officer of CCH:51 5 Spl CC No.182/2013 i.e., 50th Addl. City Civil and Sessions Judge, for the offences punishable under Sec.366 and 376 of IPC, Sec.5(m) r/w Sec.6 of POCSO Act, 2012. Later, this Case has been transferred to this court i.e., CCH:55 in view of Notification PPS(CCC) 5/2015 dated: 16.3.2015.. This court after receipt of the records in Spl CC No.182/2013, may be by oversight, again framed the Charge on 10.7.2015 for the offences punishable under Sec. 376 of IPC and Sec.3 r/w Sec.4 of the POCSO Act, 2012 and Sec.7 r/w Sec.8 of the POCSO Act, 2012. The accused pleaded not guilty for both the charges and claimed to be tried.
6. As there are Two different Charges framed against this accused, at the time of hearing the Arguments, this court has brought to the notice of learned Public Prosecutor and learned defence Counsel about two different Charges and clarified that the earlier Charge framed by the court at CCH:51 dated: 17.2.2014 will be taken into consideration while giving findings in the present case. Therefore the Charge framed by this court i.e., CCH:55 [my learned predecessor-in-office] dated: 10.7.2015 will not survive for consideration.
7. The prosecution in order to bring home the guilt of the accused has examined in all 14 witnesses out of 15 witnesses shown in the charge-sheet as PW1 to PW14 and Additional 4 witnesses as PW-15 to PW-18, and got marked 13 documents as Exs.P1 to P13 and got marked Material Objects as MOs-1 to 12.
6 Spl CC No.182/20138. At this stage, it is necessary to mention that, the prosecution has not examined CW9. CW9 is Mahazar witness. On perusal of the order sheet, it discloses that, CW9 is given up as repetition.
9. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C was recorded. The accused has denied the incriminating evidence found in the evidence of prosecution witnesses. His defence is that of total denial of his involvement in the alleged incident and that he is totally innocent. Further the accused has submitted that, a false case is lodged against him and he is not related to the alleged crime, as the neighbouring people asked the complainant to lodge the complaint against him and thereby complainant has filed a false complaint stating that, he [accused] is the culprit, but, he has not committed the alleged crime. However, the accused did not choose to lead any evidence in support of his defense.
10. Heard the learned Public Prosecutor and the learned counsel for the accused. Both sides have relied on the authorities/decisions in support of their arguments. The learned Public Prosecutor has relied upon the following decisions:
(1) 2012 Cr.L.J 3794 [O.M.Baby Vs. State of Kerala] (2) AIR 2006 SC 381 (3) AIR 2006 SC 1267 (4) (2009) 14 SCC 76 [Shekar Vs. State of Knt.] (5) 2009 Cr.L.J 903 (Bom.) (6) 2009 Cr.L.J 4133 [SC] Rajinder Vs. State of H.P. (7) 2011 (4) SRJ 263 (Datter Vs. State of Maharashtra) (8) 2015 (3) Crimes 60 7 Spl CC No.182/2013 (9) 2015(3) Crimes 84 SC (10) 2015 (3) Crimes 194 (11)2015 (3) Crimes 49 SC (12) 2015 (3) Crimes 271 SC (13) 2015 (3) Crimes 154 SC (14) 2015(4) Crimes 408 (SC) (15) 2014 (4) KCCR 3096 (Bikar Barma Vs. State by Hennur Police Station, Bangalore) (16) 1998 Cri.L.J 1947 (Raj.) (17) 2003 Cri.L.J 3548 (SC) & (2014) 2 SCC 455 (18) 2010 Cri.L.J 3880 (SC) (19) (2010) 2 SCC 445 (Ramsingh @ Chhaju Vs. State of H.P) (20) 2006 Cri.L.J 80 (Crimes) (21) Child Witness under Sec.3 of Evidence Act, 1998 Cri.L.J 2428 (Delhi HC) (22) (2016) 3 SCC (Crimes) 426 (Ajay Kumar Singh Vs. Flag Officer-Commanding-in-chief) (23) 2012 Cri.L.J 468 (H.P) (Preetam singh Vs. State by Himachal Pradesh) (24) 2016 (4) Crimes 41 (SC) The learned defence counsel has relied upon the Judgment passed by the Hon'ble Supreme Court of India in Criminal Appeal No.1485/2008 (State of Gujarat Vs. Kishanbhai Etc.]
11. After hearing the arguments of learned Public Prosecutor, learned defence counsel and as per the Charge leveled against this accused, the following Points do arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 23.6.2013 at about 7.30 P.M., when the victim girl aged 4 years, was playing in front of her house situated at Boganahalli Village, the accused with sexual 8 Spl CC No.182/2013 intent kidnapped her and thereby committed an offence punishable under Sec.366 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that the accused by kidnapping the Victim girl took her to Panathur Railway Track to an isolated place i.e., jungle and committed rape on her and thereby committed an offence punishable under Sec.376 of IPC?
3. Whether the prosecution further proves that, the accused committed penetrative sexual assault on the victim girl who is below 12 years and thereby committed an offence punishable under Sec.5(m) r/w Sec.6 of POCSO Act, 2012?
4. What Order?
12. My findings on the above points are as under:
Point Nos.1 to 3: In the NEGATIVE Point No.4: As per the final order, for the following:
REASONS
13. POINT NOS.1 TO 3: Consideration of these Three Points are based on the same facts and evidence and therefore, to avoid repetition, these Three points are taken together for discussion.
14. According to the prosecution, that on 23.6.2013 at about 7.30 P.M., when the victim girl was playing in front of her house situated at Boganahalli Village, within the jurisdiction of HSR Layout Police Station, Bangalore, the accused kidnapped the victim girl and took her with him to the coconut garden, situated 9 Spl CC No.182/2013 near Panattur Railway Track, knowing the victim girl is a minor and committed penetrative sexual assault on her. Hence, the accused has committed the offences as per the charge leveled against him.
15. The initial burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution has relied upon the evidences of PWs-1 to 18. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Victim girl
Pw.2 Bijendra Mishra-father of the victim girl
Pw.3 Dr.Shilpa deposes about the medical examination
conducted on the victim girl
Pw.4 Manjunath witnesses to the alleged incident
Pw.5 Bhanu
Pw.6 Vajrappa
Pw.7 Dr.G.Babu Rao deposes about the medical examination
conducted on the accused
Pw.8 Balaraj-Witness to the spot Mahazar as per Ex.P3
PW.9 Meenakshi-Co-ordinator-SJPU
PW.10 Muniraju-Witness to the spot Mahazar as per Ex.P6
PW11 Nagamma-WPC deposes about collected the sealed articles
from St.Jonh's Hospital and producing the same before PSI of complainant Police Station PW.12 Muralidhar- Witness to the spot Mahazar as per Ex.P3 PW.13 Raghu.B.H- Police Constable deposes about taking the sealed articles to FSL 10 Spl CC No.182/2013 PW.14 SrinivasaReddy-Police Inspector deposes about receipt of complaint, registering of FIR, conducting spot mahazars, arresting the accused, sending the victim girl and the accused to the medical examination and submitting of charge-sheet PW.15 Sanjevarayappa.H-ASI deposes about taking the accused to St.John's Hospital for medical examination PW16 Kirankumar.M.N-Police Constable deposes about apprehending the accused and producing him before the Investigating Officer PW17 Saraswathi.N.R-WPC deposes about taking the victim girl to St.John's Hospital for medical examination PW18 Shehnaz Fathima-Scientific Officer, FSL deposes about conducting scientific examination of the sealed articles and giving Report of FSL as per Ex.P12.
Before appreciating the evidence, it is better to have a glimpse of the evidence given by all the prosecution witnesses.
16. The sum and substance of the evidence of the victim girl-PW1 is that:
She has seen the accused in the year 2013, at that time she was aged 4 years, on the date of incident, her mother was suffering from labour pain and she was playing in front of her house, at that time, the accused came and took her to a jungle, she cried, but, the accused keeping his hand on her mouth was bringing her to his house, at that time, one aunt came in an auto and she slapped the accused and took her [victim girl] to her [aunt] house, which is situated near to her [victim girl] house, at that time, it was 10.30 P.M. The said aunt went to the police station and police 11 Spl CC No.182/2013 came and took the accused along with them, after that, her father came and she was sent by the aunt along with her father and thereafter, her father and she had gone to the hospital, wherein her mother was delivered a baby. Thereafter, she [victim girl] was taken to another hospital, because there was bleeding from her vagina. She further deposes that, as the accused slept on her in the jungle and he inserted his finger into her vagina, there was bleeding. This is the sum and substance of the evidence of PW1-victim girl.
17. The evidence of PW2-father of the Victim girl is that:
In the year 2013, June month, one Sunday, while he was in driving, he received a phone call to his mobile in the evening at about 6.30-7.00 P.M., from his wife complaining that, she was suffering from labour pain and when he came to the house at 9 P.M., his wife was admitted to Varthur Government Hospital, he enquired about his children, but, the neighbourers told that, his children were not to be seen and therefore, he immediately rushed to the hospital as he wanted to see his wife first, thereafter, he came to the house in the night at about 1.30-2.00 A.M.,/early morning and he enquired about his first daughter [who is the victim girl herein] from the neighbour, he came to know that, his daughter was in the house of one Banu-PW3, when he went to the house of PW3, he heard that, his daughter was crying and she complained that, there was pain in her private part, he took her to his house and saw that, there was bleeding and her inner garments was blood-stained, immediately, he had taken motor cycle belonging to the neighbourer and took his child to Vydehi Hospital 12 Spl CC No.182/2013 situated at White Field, Bangalore, at that time, it was 3-4 A.M. The Doctor took the child to the emergency ward. Before that, when he [PW2] was taking the victim girl on the motorbike towards the hospital and when he was proceeding through Railway Track, his daughter [victim girl] told him that, a person took her to the place wherein there were trees near to the Railway track and explained what had happened, that means, the said person committed bad thing on his daughter. The said place is situated 50 meters distance from the railway track. The Doctor at Vydehi hospital told him [PW2] that, there was rape committed on the victim girl and they gave the custody of his daughter at about 7 A.M. to him.
Thereafter, he went to Varthur Police Station and told about the incident and the Varthur Police asked him to go to HSR Layout Police Station and accordingly he gave Complaint in the HSR Layout Police Station at 11-11.30 A.M., as per Ex.P1. He further deposes that, the accused herein has committed rape on his daughter. Further, he deposes that, the victim girl was sent to St.John's Hospital for medical examination by the complainant police and the police seized skirt, top and underwear of his daughter which are marked as MOs-1 to 3 and thereafter, he [PW2] and the victim girl went to the said place of incident along with the police and the victim girl also shown the place from where the accused had enticed her and the police have drawn Mahazar in the said 2 places, as per Ex.P3.
18. PW3-Dr.Shilpa-Gynecologist in St.Jonh's Hospital, Bangalore deposes that, on 24.6.2013 [however in the evidence by oversight it is mentioned as 24.6.2014], at about 4.45 P.M., the 13 Spl CC No.182/2013 HSR Layout police brought the victim girl aged 5 years with the history of alleged sexual assault. On medical examination of the victim girl, it was found that, the hymen was not intact and accordingly she has given Medical Certificate as per Ex.P2. She further deposes that, at the time of examination of the victim girl, she has collected cervical swab, vaginal smear, blood and blood on glass piece, of the victim girl as per MOs-9 to 12.
19. PW4-Manjunath though initially deposed that, on the date of incident at 9 P.M., he saw the accused was taking the victim girl, but, he did not fully supported the case of the prosecution and the prosecution cross-examined him. His Statement under Sec.161 Cr.P.C before the complainant police is marked as Ex.P4.
20. PW5-Bhanu deposes that, she had taken the victim girl to her house on the date of incident in the night. She further deposes that, she has seen the accused was carrying the victim girl.
21. PW6-Vajrappa deposes that, he has seen the accused was carrying the victim girl on the date of the incident.
22. PW7-Dr.G.Babu Rao of St.Jonh's Hospital deposes that, he has conducted the medical examination of the accused and has given Medical Certificate as per Ex.P5 and he has identified the material objects i.e., Pubic hair, scalp hair, urethral swab and coronal swab belonging to the accused marked as MOs-4 to 8.
14 Spl CC No.182/201323. PW8-Balaraju deposes about the spot mahazar drawn near the house of the complainant as per Ex.P3. He has not supported the spot panchanama conducted at the spot in which the victim girl was subjected to rape, as shown by the victim girl i.e., in-continuation of Ex.P3. Prosecution treated this witness as hostile and cross-examined him.
24. PW9- Meenakshi-Co-ordinator of SJPU, deposes that on 24.6.2013, as per the requisition of HSR Layout police, she went to the Police Station for counseling the victim girl aged 4 ½ years. In the Police Station, the victim girl and her father were present. At the time of counseling, the victim girl told that, on the previous night at about 7 P.M., when she was playing, a uncle known to her gave her biscuits and took her to a Jungle near the Railway track and asked her to lay down on glass pieces and kissed her cheeks and lips and removed her underwear and put his finger into her private part (¸ÀƸÀÄ ªÀiÁqÀĪÀ eÁUÀ) and slept on her for 4 to 5 times and there was pain in her private part, then the said person took her and left her near the house of one Suja and went away, said Aunty gave her food and made her [victim girl] to sleep in her [aunt] house and when her [victim girl] father came and took her to the house at that time, she [victim girl] complained of pain in her private part, thereafter, her father brought her to the Police Station.
25. PW10-Muniraju-witness to the Spot Mahazar-Ex.P6 deposes that, the accused came along with the police and shown the place i.e., near the Railway Track wherein he[accused]has 15 Spl CC No.182/2013 committed rape on the Victim girl and the police written the Mahazar as per Ex.P6 in that place.
26. PW11- Nagamma- WPC deposes about taking the sealed articles belonging to the accused and the victim girl collected by the Doctor at the time of medical examination and she has produced the said articles before the Investigating Officer and given her Report as per Ex.P7.
27. PW12-Muralidhar-Witenss to Spot Mahazar as per Ex.P3, deposes that, the police came near the house of the complainant, from there the accused took the Victim girl to the place near to the Railway Track and in both the places, the police did Mahazar in his presence, as per Ex.P3 and he has signed the said Mahazar.
28. PW13-Raghu.B.H- Police Constable deposes about handing over the sealed articles to the FSL and given Report-Ex.P8, his Passport-Ex.P9 and the Acknowledgement of FSL-Ex.P10.
29. PW14- Srinivasreddy-Police Inspector deposes that, on 24.6.2013 at about 12 P.M., when he was in HSR Layout Police Station, the complainant came to the Police Station and lodged a Complaint-Ex.P1, and he registered the case in Cr.No.334/2013 as per FIR-Ex.P11, he recorded the statement of the victim girl and sent the victim girl for medical examination to St.John's Hospital 16 Spl CC No.182/2013 and on the same day i.e., on 24.6.2013, he deputed his staffs to trace out the accused and on the same day, the accused was apprehended and produced before him and after completion of arrest formalities, he arrested the accused, conducted the spot mahazar, recorded the voluntary statement of the accused and on 25.6.2013, he sent the accused for medical examination to St.John's Hospital, he collected the Medical Reports of victim girl and the accused, he sent the sealed articles to FSL and after completion of investigation formalities, he submitted charge-sheet.
30. PW15-Sanjeevarayappa.H- ASI deposes that, on 25.6.2013 as per the directions of Police Inspector, he took the accused to St.John's Hospital for medical examination and after medical examination, he brought back the accused and produced before the Investigating Officer.
31. PW16-Kiran Kumar.M.N-Police Constable deposes that, on 24.6.2013, as per the directions of the Inspector, he secured the accused at Boganahalli, and produced before the Investigating Officer.
32. PW17-Saraswathi.N.R-the then WPC of complainant Police Station deposes that, on 24.6.2013 as per the directions of Inspector, she took the victim girl to St.John's Hospital for medical examination and after medical examination, she brought back the victim girl and produced her before the Investigating Officer.
17 Spl CC No.182/201333. PW18-Shehnaz Fathima-Scientific Officer, FSL deposes that, she conducted chemical examination of the sealed articles sent to her and given her Report as per Ex.P12 and the Sample seal is as per Ex.P13.
34. On the basis of the evidence of the aforesaid prosecution witnesses, learned Public Prosecutor submitted his arguments. In his arguments, he argued that, according to the prosecution, when the victim girl's mother was taken to the hospital, as she was suffering from labour pain, the victim girl was alone in the house, this accused being known to the victim girl, residing in front of her house, had taken her [victim girl] on the pretext of giving biscuits to her and he took her to an area said to be the Jungle and committed rape on her. The accused was seen by PW4-Manjunath, PW5-Bhanu and PW6-Vajrappa. All these three witnesses deposed that, on the date of incident, in the night at about 9 P.M., this accused was carrying the victim girl and therefore, learned Public Prosecutor argued that, it is the accused who has committed the offence. Added to it, learned Public Prosecutor further submitted that, the victim girl examined as PW1, she has also identified the accused stating that, the uncle [accused] was the perpetrator of the crime and she had told the said fact to her father, who is examined as PW2 and further in this case, the Doctor who had examined the victim girl given Report stating that, the victim girl's hymen was not in-tact and she was subjected to recent sexual intercourse and she [PW3] gave Medical Report-Ex.P2. Considering the evidence of victim girl-PW1 herself, her father- PW2 and the evidence of the witnesses-PW4 to PW6 and 18 Spl CC No.182/2013 Medical certificate-Ex.P2 and the evidence of the Doctor-PW3, this court can come to the conclusion that, it is the accused who has committed the alleged crime. Therefore, learned Public Prosecutor submitted that, the accused may be convicted.
35. On the other hand, the learned defence counsel argued that, though the victim girl identified the accused, she being a child aged 5 years at the time of the incident and she is a tutored witness. He further submitted that, there are many contradictions, improvements and omissions in the evidence of Victim girl-PW1, her father-PW2/complainant and eye witnesses-PWs-4 to 6 and therefore, their evidence cannot be relied upon so as to convict the accused. Further, the learned defence counsel argued that, though there is Medical Certificate as per Ex.P2 and the evidence of Doctor-PW3 available on record to show that, the victim girl was subjected to rape, the defence of the accused is that, he has not denied that there was no sexual assault on the child, but, his defence is that, he has not committed the said act. Therefore, the learned defence counsel argued that, though there is Medical evidence with regard to the sexual assault, the accused is not the culprit and therefore the evidence of prosecution witnesses cannot be relied upon and hence, prayed for acquittal of the accused.
36. In the background of the arguments submitted by the learned Public Prosecutor and after hearing the arguments of the learned defence Counsel, now, it is necessary to scrutinize the evidence of prosecution witnesses by considering their version in the cross-examination before accepting their evidence.
19 Spl CC No.182/201337. In this case, at this stage, it is relevant to note that, as the accused has not denied that the victim girl was subjected to rape, then the prosecution need not prove that, there was rape on the victim girl. The prosecution has to prove that, the accused has committed rape on the victim girl. As there is no denial by the accused about the Victim girl subjected to rape and therefore, the Medical Certificate-Ex.P2 and the evidence of the Doctor-PW3, not necessary to scrutinize. The court has to scrutinize the evidence of the remaining prosecution witnesses in order to see that, whether this accused is the perpetrator of the crime.
38. At this stage, it is also relevant to note that, learned Public Prosecutor in the course of arguments, submitted that, when the defence not denied the victim girl was subjected to rape and further the victim girl has deposed before this court that, she has identified the accused that, he [accused] was the culprit who committed rape on her, presumption arises in favour of the prosecution as provided under Sec.29 of POCSO Act, 2012 and therefore, learned Public Prosecutor argued that, prosecution need not produce any further evidence so as to prove that, this is the accused who has committed the alleged offence.
39. I have gone through the provisions of Sec.29 of POCSO Act, 2012. Sec.29 of POCSO Act, 2012 reads as under:
"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 20 Spl CC No.182/2013 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".
In the present case, the accused has been charged for the offences punishable under Secs.366 and 376 of IPC and penetrative sexual assault under Sec.5(m) r/w Sec.6 of POCSO Act, 2012, therefore, presumption is available to the prosecution. When there is presumption available in favour of the prosecution, now, the burden shifts on the defence to prove that, the accused has not committed the alleged offence.
40. In order to prove that, the accused has not committed any offence, though the accused has not produced his defence evidence, during the course of arguments, learned defence Counsel has brought to the notice of this court about the inconsistencies, contradictions, improvements, omissions arose in the evidence of the Victim girl-PW1, her father-PW2/complainant and the eyewitnesses-PW4 to PW6.
41. Firstly, the learned defence Counsel argued that, in this case, PW2 being the Victim girl's father gave Complaint-Ex.P1 before the HSR Layout Police on 24.6.2013 at 12 Noon about the alleged rape said to have been committed by this accused. However, the oral evidence of PW2 before this court is entirely contrary to the contents of Ex.P1-Complaint. Therefore, learned defence Counsel argued that, as there are contradictions in the 21 Spl CC No.182/2013 evidence of PW2, when compared with the contents of complaint, therefore, the evidence of PW2 cannot be trustworthy to believe.
42. In so far as the contents of Complaint-Ex.P1 is concerned, at this stage, this court is of the opinion that, it is necessary to reproduce the contents of Ex.P1 in a nut-shell, which reads as under:
"Sexual assault to his child on the night of 23.6.2013, on that day i.e., on 23.6.2013, while he was on duty, he got a call from his wife who was pregnant and started labour pain and he came to his house, by that time, his wife was taken to Varthur Government Hospital accompanied by his building owner Kamalamma. He enquired about his elder daughter with his neigbhours, they said that, she would be somewhere and they will take care about her. Therefore, he [complainant] went to the Hospital, and his wife had delivered a baby, after he finished all his work in the Hospital, soon he came to home, at that time, it was 12 Midnight and he knocked his neighbour's house, who said that, his daughter was sleeping in the other house and he knocked the other house, one lady came out and told that, his daughter [Victim girl] is sleeping, she got her up the Victim girl and sent before him, he received the child and the child complained about her pain in vagina and also pointing her finger towards private part, he noticed something wrong, as his child was crying due to the pain and also she want to meet her mother. Accordingly, he had taken her in the bike to Varthur Government Hospital, on the way to hospital, while crossing the railway track, his child showed the place where she had been brought by that boy without her consent, and she told the story of sexual assault by that boy, he [PW2/complainant] noticed some area of the pant which the Victim girl was wearing was stained, when he reached the Hospital, he told the Doctor , but, she did not listen at all and thereafter, he took the Victim girl to Vydehi Hospital at Whitefield and the Victim girl was admitted in the Hospital and treated and prepared the Report. At that time, it was 6.30 or 7.00 A.M i.e., on the next day morning on 24.6.2013. He came out of the hospital went straight away to Varthur Police Station and from Varthur Police Station to HSR Layout Police Station accompanied by one police person from Varthur on the 22 Spl CC No.182/2013 way to HSR layout Police Station. Thereafter, when he came to his home, he enquired about the boy who committed this crime in the presence of the police and he heard from his neighbours about the said boy whose name is Premananda and residing by somewhere".
43. The learned defence Counsel pointed out that, as mentioned in Complaint-Ex.P1, the complainant took the Victim girl to Vydehi Hospital, wherein she was treated and Doctor told that, there was sexual assault on the Victim girl and asked him to inform to the police and he had gone to Varthur Police Station. But, the prosecution in this case has not produced the Medical records of Vydehi Hospital, wherein the Victim girl said to have been treated. The learned defence Counsel's arguments is that, if really, the Victim girl had taken to Vydehi Hospital, on the intervening night of 23/24.6.2013, the said document could have been placed by the prosecution. Non-production and withholding of the very important and material document of Vydehi Hospital, this court may presume that, if the said document were produced then, the prosecution story would have been entirely different. The Victim girl might have disclosed about the incident or the name of the culprit before the Vydehi Hospital and as the accused has been falsely implicated in this case, the prosecution has suppressed the said document. Therefore, learned defence Counsel argued that, the lapses on the prosecution for non-production of the said material document of Vydehi Hospital can be taken into consideration.
23 Spl CC No.182/201344. Secondly, the learned defence Counsel further argued that, as per the Complaint-Ex.P1, it is mentioned that, from Varthur Police Station he [PW2] was advised to approach HSR Layout Police Station and one police accompanied with PW2, but, who was that police accompanied with PW2 not disclosed from the prosecution papers. If really, PW2 was accompanied with the police, from Vathur Police Station to HSR Layout Police Station, then, the name of the said police should have been disclosed in the charge-sheet, Therefore, learned defence Counsel argued that, this is also serious lapse on the prosecution.
45. Thirdly, the learned defence Counsel further argued that, as per Complaint-Ex.P1, last sentence it is mentioned on the way to HSR Layout Police Station, they came to his [PW2] house and enquired about the boy who has committed the crime and neighbours told that, he was Premananda residing somewhere else. But, as per the chief examination of PW2, at Page No.5, he [PW2] deposed that, the accused along with his brother are residing in the house situated in front of PW2's house. However, as per Complaint-Ex.P1, the accused was residing somewhere else. If really, this accused has committed the offence, then, in the complaint itself, it would have been mentioned as, the person who is residing in the house situated in front of the house of PW2, but, it was mentioned as the person who committed the crime 'residing somewhere else'. Therefore, there is serious contradiction in the evidence of PW2 and the allegations mentioned in Ex.P1.
24 Spl CC No.182/201346. Fourthly, it is pointed out by the learned defence Counsel that, in the complaint-Ex.P1, it is mentioned that, they i.e., PW2 and the police accompanied with PW2 heard from PW2's neighbours about the boy whose name is Premananda. But, who is that neigbhour not mentioned in the Complaint nor the said neighbour's name is shown in the charge-sheet. Therefore, learned defence Counsel argued that, it is also serious lapses in the investigation.
47. Fifthly, the learned defence Counsel argued that, according to the Complaint-Ex.P1, after the complainant [PW2] received phone call from his wife, he came to his house and by that time, his wife was taken to hospital, he enquired about his elder daughter, neighbours told that, she would be somewhere and they will take care about her. Thereafter, he went to the hospital wherein his wife admitted and he came back from the hospital to his house at 12 midnight on 23/24.6.2013. Learned defence Counsel argued that, when the complainant earlier came to his house, he did not find his elder daughter , till 12 midnight on 23/24.6.2013, he did not bother to inform anybody about the missing of his elder daughter. If at all, on that night, the accused had committed the crime, then, the complainant would have enquired with anybody about the missing of the Victim girl before he came to his house, but, he did not make any attempt to enquire about his daughter soon after he came to know that, his daughter was missing.
25 Spl CC No.182/201348. Sixthly, the learned defence Counsel argued that, according to the prosecution, one of the material witness who is said to have seen the accused on the night of the alleged incident, taking the Victim girl is PW5 by name Bhanu. In her chief examination, she deposed that, in the night 9 P.M., the neighbourers were searching for the Victim girl and she was not traced out till 10 P.M. Therefore, she [PW5] and the auto driver namely Manjunath [PW4] had gone in search of the Victim girl and while they were going in Panattur Road, they saw that, the accused was coming, carrying the Victim girl. She [PW5] further deposes that, immediately she snatched the Victim girl from the hands of the accused and the accused ran away from the spot and he could not catch-hold. The learned defence Counsel 's arguments is that, who asked PW5-Bhanu to search the Victim girl. According to her [PW5], by 9 P.M., on that day, itself she came to know that, Victim girl was missing, then, who told her about the missing of the Victim girl. According to the complainant[PW2], he did not inform anybody about the missing of his daughter-Victim girl, till midnight 12 P.M. Therefore, learned defence Counsel argued that, something missing during the investigation and Investigating Officer has not properly investigated into the case and blindly made this accused as culprit.
49. Seventhly, learned defence Counsel further argued that, as per the evidence of PW5, when she snatched the Victim girl from the accused, she took the Victim girl to her house and when the Victim girl was taking dinner, Victim girl told that, 26 Spl CC No.182/2013 there was pain in her private part and she removed her undergarments and noticed that, there was blood and asked the Victim girl what has happened, the Victim girl told her that, the accused took her to place near Railway gate and he slept on her and did pain to her. The arguments of the learned defence Counsel is that, when PW5 was aware that there was blood on the undergarment of the Victim girl and in her private part, by 10 P.M., itself, when she took the Victim girl to her house, she did not bother to inform the Victim girl's father i.e., the complainant. In the Complaint-Ex.P1, the complainant did not stated that, when he received the Victim girl from PW5, PW5 had informed the complainant about the pain in the private part of the Victim girl. In the chief examination of PW2, he stated that, he enquired with the neighbours and received the Victim girl from PW5-Bhanu and he took the Victim girl to his house. If really PW5 knew about the pain in the private part of the Victim girl and her undergarment was blood stained, then, she should have immediately disclosed to the complainant, when he received the Victim girl from her. Therefore, learned defence Counsel argued that, this is also one of the lapses in the investigation and therefore he argued that, evidence of PW5 cannot be taken into consideration.
50. On going through the evidence of PW5 and the contents of Ex.P1 and the evidence of PW2, it is true that, as rightly argued by the learned defence Counsel, if PW5 really noticed about the pain and the blood in the private part of the Victim girl, then, she should have immediately disclosed to the complainant, but, she 27 Spl CC No.182/2013 did not do so. Therefore, this court is of the opinion that, evidence of PW5 that, she had seen the accused and he was taking the Victim girl on that day at 9 P.M., cannot be trustworthy to believe.
51. Eighthly, learned defence Counsel further argued that, another eyewitness-PW6-Vajrappa, he deposes in his chief examination that, the Victim girl's father [complainant] telephoned him and informed about the missing of the Victim girl, as stated in Page No.2 of his deposition (in chief examination). But, according to the evidence of PW2-complainant, he did not telephoned to anybody about the missing of his child. Therefore, learned defence Counsel argued that, the evidence of PW6 said to be the eyewitnesses who has seen the accused taking the Victim girl, cannot be believable.
52. I have gone through the evidence of PW6. He stated that, the complainant telephoned to him about the missing of the Victim girl by 9 P.M. During the course of cross-examination, he stated that, he did not know the telephone No. of the complainant. Further, in the cross-examination, PW6 stated that, he informed on the same day that, the accused was bringing the Victim girl on that night. If at all, PW6 informed about the accused at that time, i.e., 10 P.M., to the complainant, the complainant immediately, could have lodged the complaint.
53. On going through the evidence of PW6, as there is contradiction about the telephone call made by the complainant to him about the missing of the Victim girl. Added to, it as per the 28 Spl CC No.182/2013 evidence of PW5, PW6-Vajrappa brought the accused. However, PW6 deposed that, the accused ran away. Therefore, as there are contradictions in the evidence of PW5 and PW6 about the securing the accused and further in the evidence of PW6, with regard to he received the telephone from the complainant about the missing of the Victim girl, therefore, this court is of the opinion that, evidence of PW6 is also not trustworthy to believe.
54. Ninthly, learned defence Counsel further argued that, now the evidence is available which is of the PW1-Victim girl. He argued that, even the evidence of PW1-Victim girl cannot be trustworthy to believe because she is a tutored witness. The learned defence Counsel brought to the notice of this court that, PW1-Victim girl in her chief-examination at Page No.3 stated that, the accused did not do anything on her. Further, during the course of cross-examination at Page No.5, PW1-Victim girl stated that, before 3 years of her evidence, where she was residing, she cannot say. Further, she [PW1] also stated that, she could not say who are her neighbours. It is the arguments of the learned defence Counsel that, when the Victim girl could not say who were residing in and around her house at the time of the incident, how can she remembered the name of the accused herein and identified the accused that, he was the culprit. For that, learned Public Prosecutor argued that, the Victim girl deposed her friend's name in her evidence i.e. Mosum ka Mummy, Nagesh uncle, Kittu mummy and therefore, she was remembered the accused name and his identity and her evidence may be accepted so as to convict the accused.
29 Spl CC No.182/201355. As a reply to the said arguments, the learned defence Counsel argued that, though the Victim girl has told names of some persons, her evidence could not be believable because she is a tutored witness and there is lot of ambiguity in her evidence. The learned defence Counsel pointed out that, during the course of cross-examination, the Victim girl deposed that, she used to hear her father's words. Added to it, it is further argued by learned defence Counsel that, in this case, no test identification parade is conducted. According to the Victim girl, the accused was residing in the jungle, but, during the course of cross-examination of Victim girl-PW1, she told that, jungle is behind the back of her house. Further, in Sec.161 Cr.P.C statement recorded by the complainant on 24.6.2013, the Victim girl stated that, the uncle known to her who committed the rape. If really, she knows the accused, then she could have named the accused or could have stated that, where the accused has been residing i.e., in front of her house , but, she has not mentioned the name of the accused at the time of recording the statement under Sec.161 of Cr.P.C. Therefore, there is ambiguity in identification of the accused by the Victim girl. The Victim girl is a child witness, below the age of 7 years at the time of giving evidence, learned defence Counsel argued that, she is tutored by her father to depose like this.
56. On going through the evidence of PW1-Victim girl, it is true that, she has identified the accused and that uncle has committed the rape on her, however, as argued by the learned defence Counsel, looking into the evidence of other witnesses i.e., PW2-complainant, PW4, PW5 and PW6 said to be the eyewitnesses, 30 Spl CC No.182/2013 this court did not accept the evidence of PW2, PW4 to PW6 as trustworthy to believe, because of the contradictions in their evidence as discussed in the aforesaid paragraphs of this judgment. Under these circumstances, as rightly argued by the learned defence Counsel, this PW1-Victim girl may be a tutored witness and her evidence cannot be relied upon to connect the accused in the crime. At this stage, learned Public Prosecutor has relied upon the decisions reported in 2011 (4) SRJ 263 wherein it is held that, "Rape of minor-there is no reason for 10-12 years child to tell a lie".
However, in the present case, looking into the evidence of other witnesses i.e., PW2-complainant, PW4, PW5 and PW6 said to be the eyewitnesses, and the lapses in the investigation, as noticed in the aforesaid paragraphs of this judgement, the evidence of PW1 cannot be accepted, as trustworthy to believe.
57. Tenthly, the learned defence Counsel argued that, in this case the arrest of the accused is also doubtful. There is no clear evidence as to when the accused caught hold. According to the evidence of PW5-Bhanu, it is PW6-Vajrappa brought the accused. But, according to PW6, the accused ran away. Further, during the course of cross-examination PW2, at Page No.17, Para No.6, he has admitted that, when he [PW2] had gone to the Police Station, for lodging the complaint by that time itself, the accused was in the police lock up. The Complaint is lodged on 24.6.2013. But, as per the evidence of PW16, police constable he 31 Spl CC No.182/2013 deposed that, he caught hold the accused on 24.6.2013 at 3 P.M. , but, in the charge-sheet the accused was arrested on 25.6.2013. Therefore, there is no clear evidence about the arrest of the accused.
58. Elevently, the learned defence Counsel in this case brought to the notice about the Spot Mahazar-Ex.P3 conducted near the Railway track, the time is mentioned as 4.00 P.M to 5.30 P.M on 24.6.2013. But, in Ex.P2-Medical Report of the Victim girl, the time was mentioned as 4.45 P.M. As per the Spot Mahazar-Ex.P3, at Para No.2, it is mentioned that, at the time of drawing up of Mahazar, the complainant-PW2 and the Victim girl- PW1 accompanied with the police in between 4.00 P.M to 5.30 P.M. On going through the contents of Ex.P2 and Ex.P3, as rightly argued by the learned defence Counsel, that, at the same time, Ex.P2 and Ex.P3 prepared stating that, at the time of recording Ex.P2 and Ex.P3, the Victim girl was present. It is ridiculous to note that, how could the Victim girl be present at the same time in different places. This is also a serious lapse in the investigation which can be taken note-of.
59. Twelthly, the learned defence Counsel further argued that, the accused was sent to medical examination on 25.6.2013. The Medical Report of the accused is marked as Ex.P5. As per Ex.P5, the doctor has opined that, evidence of signs of recent sexual intercourse absent and further, as per FSL Report i.e., Ex.P12, presence of seminal stains, spermatozoa was not detected. For all these reasons, the learned defence Counsel argued 32 Spl CC No.182/2013 that, though there was rape on the Victim girl, the accused has not committed the said crime.
60. Learned Public Prosecutor submitted that, though there are lapses in the investigation, lapse on part of Investigating Officer, cannot be a ground to acquit the accused. In that regard, he has relied upon the decision reported in 2016 (3) SCC Crimes 426, wherein it is observed that:
"Lapse on part of the prosecution while proving incriminating evidence- Held- criminal trials should not be made casually for such lapses, in the investigation or prosecution.".
Further, learned Public Prosecutor argued that, though there are some contradictions appeared in the evidence of Prosecution witnesses that contradictions are only minor contradictions and thereby, the evidence of the Victim girl-PW1, the complainant-PW2 and the eye witnesses PW4 to PW6 cannot be brushed aside. Therefore learned Public Prosecutor argued that, the evidence of PWs-1, 2, 4 to 6 may be accepted by this court and apart from their evidence, the evidence of the other witnesses, like, spot mahazar witnesses, doctor evidence, Investigating Officer evidence taken together, this court can convict the accused.
61. To sum up in this case, after analyzing the testimonies of material witnesses examined by the prosecution who are PW1-Victim girl, PW2-complainant, PW4 to PW6-said to be the eyewitnesses, if read together, there are apparent contradictions 33 Spl CC No.182/2013 with regard to the identification of the accused, arrest of the accused, non-production of Vyedhi Hospital records by the prosecution, which are material documents, and further the Victim girl in this case is aged 7 years, being a child witness, there is possibility of tutored, which cannot be ruled out, having regard to over-all evidence on record, the defence of the accused i.e., false implication of this accused cannot be likely brushed-aside.
62. Further, in this case it is very pertinent to note that, in Sec.313 Cr.P.C Statement of the accused, he has denied Question No.20 put to him that, he was going along with the child on the night 9 P.M., on that day, and PW4 and PW5 saw him and snatched the child and he ran away from that place. He voluntarily further answered to that question, stating that, on that day, at that time, the Victim girl was going in front of him about 15 feet distance and he was going behind her and at that time, three persons came in an auto and took the Victim girl in that auto. Therefore, if really, the accused did the crime, he could not have answered voluntarily that, he was going behind the back of the Victim girl, he could have totally denied his presence on that day at that time.
63. Further, the accused answered to the Question No.49 in Sec.313 Cr.P.C Statement, i.e., whether he has to say anything about this case, the accused answered that, there is no connection to the alleged crime and him and the persons who were surrounding the complainant, brain-washed the complainant and asked him to lodge the complaint accusing him [accused].
34 Spl CC No.182/2013Therefore, the complainant has given false complaint against him [accused] implicating him in the present case.
64. For all these reasons, this court is of the opinion that, the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Therefore, extending benefit of doubt, the accused is entitled to an acquittal. Accordingly, I answer POINT NOS. 1 TO 3 in the NEGATIVE.
65. POINT NO.4: In view of my aforesaid discussions, I proceed to pass the following ORDER In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is acquitted of the offences punishable under Secs.366 and 376 of IPC and under Sec.5(m) r/w Sec.6 of POCSO Act, 2012.
MOs-1 to 12 being worthless, are ordered to be destroyed after the appeal period is over.
The accused has been in judicial custody since the date of his arrest on 25.6.2013 and therefore, he is set at liberty today i.e., on 23.3.2017.
As per the provisions of Sec.437(A) of Cr.P.C., the accused shall execute bail bonds with sureties, to appear before the Higher court, as and when such court issues notice in respect of 35 Spl CC No.182/2013 any appeal or petition filed against the judgment and such bail bonds shall be in force for 6 months.
In the present case, today, i.e., on 23.3.2017 the accused ordered to be set at liberty, as he has been acquitted of the offences alleged against him in the present case. However, as the accused is required to furnish bail bonds and sureties, till the accused furnishes bail bonds and sureties, he cannot be set at liberty.
In case the accused not furnishes the bail bonds and sureties, then the jail authorities are directed to release the accused and set at liberty after 6 months from today, which will come to an end on 22.9.2017.
In so far as victim compensation is concerned, a separate order has been passed recommending the District Legal Services Authority to pay compensation to the Victim girl of Rs.3,00,000/- [Rupees Three Lakhs only], as per the Schedule.
[Dictated to the Stenographer partly and directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 23rd day of March, 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
36 Spl CC No.182/2013ANNEXURE Witnesses examined for the prosecution:
Pw.1 Victim girl CW2 17.8.2015
Pw.2 Bijendra Mishra CW1 17.8.2015
Pw.3 Dr.Shilpa CW11 2.9.2015
Pw.4 Manjunath CW4 10.12.2015
Pw.5 Bhanu CW3 10.12.2015
Pw.6 Vajrappa CW5 10.12.2015
Pw.7 Dr.G.Babu Rao CW10 29.12.2015
Pw.8 Balaraj CW7 29.12.2015
PW.9 Meenakshi CW12 12.1.2016
PW.10 Muniraju CW8 12.1.2016
PW11 Nagamma CW13 12.1.2016
PW.12 Muralidhar CW6 28.1.2016
PW.13 Raghu.B.H CW14 28.1.2016
PW.14 SrinivasaReddy CW15 28.1.2016
PW.15 Sanjevarayappa.H Additional 20.10.2016
witness
PW16 Kirankumar.M.N Additional 9.1.2017
witness
PW17 Saraswathi.N.R Additional 9.1.2017
witness
PW18 Shehnaz Fathima Additional 7.3.2017
witness
Documents marked for the prosecution:
Ex.P1 Complaint given by PW2 dated: 24.6.2013 to the
complainant police
37 Spl CC No.182/2013
Ex.P1(a) Signature of PW2
Ex.P1(b) Signature of PW14
Ex.P2 Medical Report of the victim girl
Ex.P2(a) Signature of PW3
Ex.P2(b) Signature of PW2
Ex.P3 Spot Mahazar conducted at Boganahalli Grama in
front of Patel's house, 1st Cross Road, In front of Kamalamm's rented houses Ex.P3(a) Signature of PW2 Ex.P3(b) Signature of PW8 Ex.P3(c) Signature of PW12 Ex.P3(d) Signature of PW14 Ex.P4 Statement given by PW4 before the complainant police Ex.P5 Medical Report of the accused Ex.P5(a) Signature of PW7 Ex.P6 Spot Mahazar conducted at Boganahalli Grama in front of Patel's house, 1st Cross Road, In front of Kamalamm's rented houses Ex.P6(a) Signature of PW10 Ex.P6(b) Signature of PW14 Ex.P7 Report given by PW11 before the complainant police Ex.P7(a) Signature of PW11 Ex.P7(b) Signature of PW14 Ex.P8 Report given by PW13 before the complainant police Ex.P8(a) Signature of PW13 Ex.P8(b) Signature of PW14 38 Spl CC No.182/2013 Ex.P9 Passport given to PW13 to take the sealed articles to FSL Ex.P10 Acknowledgement given by FSL for having received the sealed articles from PW13 Ex.P11 FIR Ex.P11(a) Signature of PW14 Ex.P12 FSL Report Ex.P12(a) Signature of PW18 Ex.P13 Sample Seal Documents marked for the prosecution:
MO1 Skirt MO2 Top of the victim girl MO3 Underwear MO4 Pubic hair MO5 Scalp hair MO6 Urethral swab of the accused MO7 Coronal Swab MO8 Blood MO9 Cervical swab MO10 Vaginal smear MO11 Blood of the victim girl MO12 Blood on glass piece
Witness examined, documents and Material Objects marked for the accused: NIL LIV Addl., City Civil & Sessions Judge, Bangalore.
39 Spl CC No.182/201323.3.2017 Accused produced from judicial custody Judgment pronounced in open court:
[ Vide separate detailed Judgment] In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is acquitted of the offences punishable under Secs.366 and 376 of IPC and under Sec.5(m) r/w Sec.6 of POCSO Act, 2012.
MOs-1 to 12 being worthless, are ordered to be destroyed after the appeal period is over.
The accused has been in judicial custody since the date of his arrest on 25.6.2013 and therefore, he is set at liberty today i.e., on 23.3.2017.
As per the provisions of Sec.437(A) of Cr.P.C., the accused shall execute bail bonds with sureties, to appear before the Higher court, as and when such court issues notice in respect of any appeal or petition filed against the judgment and such bail bonds shall be in force for 6 months.
In the present case, today, i.e., on 23.3.2017 the accused ordered to be set at liberty, as he has been acquitted of the offences alleged against him in the present case. However, as the accused is required to furnish bail bonds and sureties, till the accused furnishes bail bonds and sureties, he cannot be set at liberty.
40 Spl CC No.182/2013 In case the accused not furnishes the bail bonds and sureties, then the jail authorities are directed to release the accused and set at liberty after 6 months from today, which will come to an end on 22.9.2017. In so far as victim compensation is concerned, a separate order has been passed recommending the District Legal Services Authority to pay compensation to the Victim girl of Rs.3,00,000/- [Rupees Three Lakhs only], as per the Schedule. [RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY 41 Spl CC No.182/2013