Bangalore District Court
State By Subramanyanagara Police vs Nos.1 A1: Mohan.R on 17 June, 2019
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the, 17th day of June, 2019.
Present: SMT.R.SHARADA,B.A. M.L
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO. 230/2016
COMPLAINANT: State by Subramanyanagara Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED NOS.1 A1: Mohan.R,
TO 4: Son of Late. Raju,
Aged 22 years,
Residing at No.36, Kumar's House,
Near Jayadurga Chatra, 3rd Cross,
Kurubarahalli,
Bangalore.
[Accused No.1 is in the judicial
custody]
A2: Sangeetha,
Wife of Palani,
Aged 19 years,
Residing at No.36, Kumar's House,
Near Jayadurga Chatra, 3rd Cross,
Kurubarahalli, Mahalakshmipuram
Bangalore.
A3: Palani,
Son of Madamma,
Aged 23 years,
Residing at No.36, Kumar's House,
Near Jayadurga Chatra, 3rd Cross,
Kurubarahalli, Mahalakshmipuram
Bangalore.
2 Spl CC No.230/2016
A4: Kamakshamma,
Wife of Narayanappa,
Bin Varadaraju,
Aged 30 years,
Residing at No.22, 4th Main Road,
J.C.Nagar, Kurubarahalli,
Bangalore.
[Accused Nos.2 to 4 are on bail]
[By Advocate Sri. Shankare Gowda.H.N]
1. Date of commission of offence 24.2.2016
2. Date of report of occurrence 25.2.2016
of the offence
3. Date of arrest of accused No.1 07.03.2016
Date of arrest of accused
9.4.2018
Nos. 2 to 4
Date of release of accused
16.07.2016
No.1
25.04.2018
Date of release of accused
Nos. 2 to 4
Period undergone by accused
4 months and 9 days. Since accused
No.1 in the judicial custody No.1 kept absent before this court, NBW
was issued against him and he was
taken to custody and remanded to
judicial custody. Now the accused No.1
is in the judicial custody
Period undergone by accused 16 days.
Nos. 2 to 4 in the judicial
custody
3 Spl CC No.230/2016
4. Date of commencement of 23.11.2018
evidence
5. Date of closing of evidence 5.4.2019
6. Name of the complainant Smt.Nandini, complainant as well as the
mother of the victim girl
7. Offences complained of Secs. 363, 376, 109 r/w Sec.34 of IPC
and Secs.4 and 17 of POCSO Act,
2012
8. Opinion of the Judge Accused Nos. 1 to 4 are acquitted.
JUDGEMENT
The Police Inspector, Subramanyanagar police station has filed charge-sheet against the accused Nos. 1 to 4 for the offences punishable Secs. 363, 376, 109 r/w Sec.34 of IPC and Secs.4 and 17 of POCSO Act, 2012.
2. The brief facts of the prosecution case is that, CW2 being the minor victim girl and also the daughter of CW1 was studying in Panchajanya Vidyapeetha PUC College coming within the jurisdiction of Subramanyanagar police and on 24.2.2016 at 10 A.M., in the morning when CW2/victim girl had come to the college to collect hall ticker, at that time, accused No.1 made her to believe that he is loving her and also told that accused No.4 of this case told him to bring CW2/victim girl to her and by saying so, the accused No.1 took CW2/victim girl forcibly to the house of accused Nos.2 and 3 and accused Nos. 2 to 4 with a common 4 Spl CC No.230/2016 intention inspite of knowing that CW2/victim girl was a minor, with an intention to perform the marriage of CW2/victim girl with accused No.1, and instigated accused No.1 to take the victim girl to Tamil Nadu and to get married her. As stated above, accused Nos. 2 to 4 inspite of knowing that CW2/victim girl was a minor, made accused No.1 to forcible bring her and also instigated accused NO.1 to commit rape on CW2/victim girl , thereby accused NO.1 with the instigation of accused Nos. 2 to 4 inspite of knowing that CW2 is a minor, took her to Tamil Nau and stayed in the house of accused Nos.2 and 3 in Tamil Nadu and stayed there till 6.3.2016 and on the same day i.e., on 6.3.2016, accused No.1 along with CW2/victim girl came back to Bangalore and took her to the house of CW5 situated at Banaswadi and by enticing CW2 that he will marry her, on 6.3.2016 when nobody were in the house, accused No.1 committed rape/penetrative sexual assault on CW2/victim girl. Initially on the basis of the missing complaint lodged by the complainant who is none other than the mother of the victim girl alleging that, her daughter/victim girl who was aged 17 years and was studying in I PUC college at Panchajanya Vidyapeetha, Rajajinagar, Bangalore on 24.2.2016 in the morning at 10 A.M., went out of the house by telling that she will collect the admission ticket, but did not t urn up. Inspite of search, her daughter was not traced out. Hence, the complainant requested Subramanyanagar police to trace out her daughter. On the basis of the said complaint, PSI of the complainant police station has registered a case in Cr.No.33/2016 for the offence punishable under Sec.363 of IPC and commenced investigation. During the course of investigation, the victim girl was traced out and on the 5 Spl CC No.230/2016 basis of the statement of the victim girl, the complainant police have arrested accused Nos. 1 to 4 of this case and after completion of investigation, the Investigating Officer has filed charge-sheet against these accused persons for the offences punishable under Secs. 363, 376, 109 r/w Sec.34 of IPC and Secs.4 and 17 of POCSO Act, 2012.
3. During the course of investigation, accused No.1 was arrested on 07.03.2016 and he was enlarged on bail on 16.07.2016. Since accused No.1 kept absent before this court, NBW was issued against him and he was taken to custody and remanded to judicial custody. Now the accused No.1 is in the judicial custody. Accused Nos. 2 to 4 were arrested on 9.4.2018 and they were released on bail on 25.04.2018. As per the provisions of Sec.207 of Cr.P.C, copies of the charge-sheet furnished to the accused. Accordingly charge is framed, read over and explained to the accused persons, they pleaded not guilty, claims to be tried. Accordingly, the trial is fixed, summons issued to the prosecution witnesses.
4. The prosecution has examined 13 witnesses as PWs-1 to 13 and got marked 18 documents as Exs.P1 to P18, besides marking MO-1. Thereafter Statement of the accused Nos. 1 to 4 recorded under Sec.313 of Cr.P.C. The accused have denied all the incriminating evidence told to them, but they have not examined any witnesses on their behalf and no documents are marked.
6 Spl CC No.230/20165. Heard the arguments of the learned Public Prosecutor and the learned counsel for the accused. On perusal of the oral and documentary evidence, at this stage, following Points arise for my consideration:
1. Whether the prosecution proves that, CW2 being the minor victim girl and also the daughter of CW1 was studying in Panchajanya Vidyapeetha PUC College coming within the jurisdiction of Subramanyanagar police and on 24.2.2016 at 10 A.M., in the morning when CW2/victim girl had come to the college to collect hall ticker, at that time, accused No.1 made her to believe that he is loving her and also told that accused No.4 of this case told him to bring CW2/victim girl to her and by saying so, the accused No.1 took CW2/victim girl forcibly to the house of accused Nos.2 and 3, thereby accused No.1 has committed an offence punishable under Sec.363 of IPC?
2. Whether the prosecution further proves, that on the said date, time and place, accused NO.1 not only took CW2/victim girl along with him to the house of accused Nos. 2 and 3 and accused Nos. 2 to 4 with a common intention inspite of knowing that CW2/victim girl was a minor, with an intention to perform the marriage of CW2/victim girl with accused No.1, instigated accused No.1 to take the victim girl to Tamil Nadu and to get married her, by making accused No.1 forcibly to bring CW2/victim girl from her college and accused Nos.2 to 4 also instigated accused NO.1 to commit rape on CW2/victim girl, thereby accused Nos. 2 to 4 have committed an offence punishable under Sec.109 r/w Sec.34 of IPC and Sec.17 of POCSO Act, 2012?7 Spl CC No.230/2016
3. Whether the prosecution further proves that, on the said date, time and place and also as per the instigation of accused Nos. 2 to 4, accused No.1, took CW2/victim girl inspite of knowing that she was a minor to Tamil Nadu and stayed in the house of accused Nos.2 and 3 in Tamil Nadu and stayed there till 6.3.2016 and on the same day i.e., on 6.3.2016, accused No.1 along with CW2/victim girl came back to Bangalore and took her to the house of CW5 situated at Banaswadi and by enticing CW2 that he will marry her, on 6.3.2016 when nobody were in the house, accused No.1 committed rape/penetrative sexual assault on CW2/victim girl, thereby the accused No.1 has committed an offence punishable under Sec.376 of IPC and Sec.4 of POCSO Act, 2012?
4. What Order?
6. 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
7. POINT NOS.1 TO 3:- As these Points are inter-linked to each other, they are taken up together for common discussion, in order to avoid repetition of facts.
8. During the course of arguments, the learned Public Prosecutor has submitted that in order to prove the prosecution case totally 11 witnesses are examined as PWs-1 to 13 and 18 documents are marked as Exs.P1 to P18, besides marking MO-1. Though the victim girl and her parents have not supported the case of the prosecution but the court has to look into the facts and circumstances of the case along with available 8 Spl CC No.230/2016 evidence of the prosecution to bring home the guilt of the accused. In the present case, the police officials and the Investigating Officer has totally supported the case of the prosecution and he has deposed before the court that, the complainant approached him with a complaint, thereby he has received the same, registered as FIR, taken up investigation, traced out the victim girl as well as the accused recorded statements drawn mahazar finally after completion of investigation, submitted charge-sheet against the accused. This evidence is not contradicted by the counsel for the accused. Even the doctor who has examined the victim girl physically, has opined that the Hymen of the victim girl: Old tears at 4 and 7'o clock. Apart from that, according to Sec.29 of POCSO Act, 2012, there is burden casted upon the accused to prove their innocence, but, the accused have failed to chose to examine any of the witness on his behalf, thereby, the prosecution has proved the guilt of the accused beyond all reasonable doubts and the accused has to be convicted and he prays to convict the accused in the interest of justice and equity.
9. Per contra, the learned counsel for the accused submitted that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. The victim girl and her parents have totally turned hostile to the prosecution case when there were subjected by the cross-examination by the learned Public Prosecutor. These witnesses have denied all the suggestions put to them supporting their chief evidence. When all these material witnesses not supported the case of the prosecution, considering only the evidence of the Medical Officer and the 9 Spl CC No.230/2016 Investigating Officer, the court cannot convict the accused persons for the offences as alleged. Hence, the learned counsel for the accused prays to acquit the accused in the interest of justice and equity.
10. I have perused the oral and documentary evidence furnished by the prosecution before this court. The prosecution in order to prove its case has examined as many as 13 witnesses. PW1/CW2 is the victim girl herself, PW2/CW1 is the complainant/mother of the victim girl, PW3/CW5 is the senior aunt of accused No.1. PW4/CW4 is maternal uncle of the victim girl, PW5/CW11 is the Doctor who has examined accused No.1, PW6/CW9 is the Principal of the College wherein the victim girl was studying, PW7/CW18 is the Police Inspector who conducted part of investigation of this case, PW8/CW3 is the Father of the victim girl, PW9/CW13 is the Head constable who apprehended accused No.1, PW10/CW15 is the Police constable who collected the sealed articles of accused No.1 and produced it before CW20, PW11/CW10 is the Lady Doctor who examined the victim girl and given Report, PW12/CW6 is the SJPU Co-ordinator before whom the victim girl has given statement and PW13/CW19 is the Police Inspector who is the final Investigating Officer who has submitted charge-sheet before this court. In support of the case, the prosecution has also produced the following documents: Ex.P1 is the Spot Panchanama, Ex.P2 is the Statement of PW1/victim girl given before the Learned Magistrate under Sec.164 of Cr.P.C. Ex.P3 is the Statement of PW1/victim girl given before PW12-SJPU Co-ordinator. Ex.P4 is the Further statement of PW1/victim girl.
10 Spl CC No.230/2016Ex.P5 is the Complaint dated: 25.2.2016 lodged by PW2/complainant/mother of the victim girl before the complainant police Ex.P6 is the Spot Panchanama of the alleged incident. Ex.P7 is Statement of PW2 given before the complainant police under Sec.161 of Cr.P.C. Ex.P8 is the Statement of PW3 given before the complainant police under Sec.161 of Cr.P.C. Ex.P9 is the Statement of PW4 given before the complainant police under Sec.161 of Cr.P.C, Ex.P10 is the Requisition given by the Investigating Officer to PW5, PW11 is the Medical Certificate of accused No.1-Mohan, Ex.P12 is the Study Certificate issued by the Principal, PVP Pre-University College for Women, Rajajinagar, Bangalore wherein PW1/victim girl was studying showing the date of birth of PW1/victim girl as 23.7.2000. Ex.P13 is the Transfer Certificate of PW1/victim girl showing the date of birth of PW1/victim girl as 23.7.2000. Ex.P4 is the FIR, Ex.P15 is the Report given by PW10 regarding collecting of the articles pertaining to accused No.1 and producing the said articles before the Police Inspector of the complainant police station. Ex.P16 is the Medical Certificate of PW1/victim girl. Ex.P17 is the Statement of PW8/father of the victim girl given before the complainant police under Sec.161 of Cr.P.C and Ex.P18 is the FSL Report.
11. Now coming to the evaluation of the evidence of the prosecution witnesses, I would like to take up firstly the evidence of the victim girl. PW1-victim girl in her evidence before the court in chief examination has stated that, 1 ½ years back to the date of giving her evidence before the court, her marriage was solemnized 11 Spl CC No.230/2016 with one Shivaraj. She has further deposed that CW1 is her mother and CW3 is her father. She do not know accused Nos. 1 to 4 and she cannot identify them. She is living with her parents and elder sister. She has further deposed that, during the year 2016, she was studying in Panchajanya College in 1st year PUC and she used to go the college by 10.30 A.M., and used to return home by 3.30 P.M. While going to college none were talking to her nor none were following her and no one has taken her to anywhere and she was not kept in any house and she was not enticed of marriage and none have committed rape on her. As she had not studied for her exams, so she had gone to her friend's house. Afraid of this, her mother, had lodged a complaint. On the next day after lodging the complaint, she came back to the house. Her mother took her to the police station, there the police did not ask her anything and did not take her anywhere. She has also not stated anything before the Magistrate about these accused persons, but, she has identified her signature on the Mahazar which is marked as Ex.P1 as per Ex.P1(a). She has also identified her signature on the statement given by her before the Magistrate under Sec.164 of Cr.P.C which is marked as Ex.P2 as per Ex.P2(a). She has not given any statement before the police. Other than this, she do not have anything to say. At this stage, this witness has been treated as hostile and subjected for cross-examination by the learned Public Prosecutor. In her cross-examination also, she has denied the suggestions put to her that, accused NO.1 was following her and was forcing her to love him. She has also further denied the suggestions that, on 24.2.2016, when she had been to the college for collecting her hall ticket, at that time, accused No.1 by 12 Spl CC No.230/2016 telling that accused No.4 was calling her, took her to the house of accused No.2 and there accused No.3 was also there and all of them took her near the Church and after prayers, they all came back to the house of accused No.2. She has also denied the suggestion that, as the key of the house was lost, herself and accused No.2 sat in a park and accused Nos. 1 and 3 were searching for the key at that time, accused NO.4 came there and told that, police have come in search of her [PW1] and accused Nos. 2 to 4 asked her to go to Tamil Nadu along with accused No.1. She has also denied that, in Tamil Nadu she and accused No.1 stayed in the house of the relative of one Karthik. She has also denied the suggestion that, she got frightened that the accused persons will sell her. She has further denied that, on 6.3.2016, accused No.1 brought her to Banaswadi, Bangalore to a house and there accused No.1 offered a juice with intoxication and committed rape on her and later accused No.1 left her in an auto to Kurubarahalli Circle and went away. She has further denied that she has given her statement and further statement in the similar lines as read over to her. The Statement and further statement given by her before the police are marked as Ex.P3 and Ex.P4 respectively. She has further denied by knowing all the facts in the Mahazar-Ex.P1, she has signed on it. She has further denied that, now her marriage has been solemnized with another person and out of the said wedlock, a child is born and if she reveals the truth, her future life will be affected, she is deposing falsely against the accused by compromising with them. The learned defence counsel was present and has stated that he no cross-examination of this witness.
13 Spl CC No.230/201612. PW2-Nandini, is the complainant as well as the mother of the victim girl, who set criminal law into motion by filing the complaint. In her evidence before the court she has stated that, CW2 is her daughter and CW3 is her [PW2] husband. She do not know accused Nos. 1 to 4 and she has not seen them. During the year 2016, her daughter/CW2 was studying in Panchajanya College in I year PUC and she was aged 17 years during that time. She used to go to the college by 9 A.M, and return back home by 3-3.30 P.M. Her [PW2] husband is suffering from Paralysis and he cannot do any work. But, he can walk. About 2 ½ years back to the prior of giving her evidence before the court, her daughter had gone to the college to get her admission ticket, but, she did not turn up. As she was not found inspite of search, she had lodged the complaint. The complaint is marked as Ex.P5 and her signature is marked as Ex.P5(a). She has further deposed that, on the next day of lodging the complaint, the police had secured her to Panchajanya college and conducted Panchanama as per Ex.P6 and her signature is as Ex.P6(a). On the next day of lodging the complaint, her daughter came back to the house. On enquiry with her daughter, she told that she had gone to her friend's house for studying. Other than this, she did not tell anything to her. She herself took her daughter to the police station, but, the police have not enquired her daughter nor they took her to the hospital. The police had enquired her [PW2]. Her daughter has not stated anything against the accused persons. At this stage, this witness has been treated as hostile and subjected for cross-examination by the learned Public Prosecutor. In her cross-examination, this witness has denied all the suggestions put to her that, 14 Spl CC No.230/2016 accused Nos. 2 to 4 in order to perform the marriage of her daughter with accused No.1 had taken her daughter to Tamil Nadu to the house of Palani and on 6.3.2016, all the accused persons brought her daughter to the house of CW5 and when CW5 was in the house, accused No.1 had committed rape on her daughter. On 7.3.2016, accused No.1 brought her daughter back in an auto and left her near Kurubarahalli circle and also threatened her with dire consequences and went away. She has further denied that she has given the further statement which is marked as Ex.P7 before the police. She has further denied that, now the marriage of her daughter has been solemnized with another person and out of the said wedlock, a child is born and if she reveals the truth, the future life of her daughter will be will be affected, so she is deposing falsely against the accused by receiving money from them.
13. PW3- Vasanthamma in her evidence before the court has deposed that, she do not know anything about this case and she has not seen the accused and the police have not enquired with her and she has not given any statement to the police. At this stage, this witness has been treated as hostile and subjected for cross-examination by the learned Public Prosecutor. In her cross- examination she has denied that, she is not related to the accused persons. The accused persons have not brought the victim girl to her house. She has denied that, accused No.1 is the son of her husband's younger brother and accused No.2 is her sister and the other accused persons are her relatives. She has further denied that, accused NO.1 has committed penetrative sexual assault on the victim girl. She has denied that, she has given statement which 15 Spl CC No.230/2016 is marked as Ex.P8 before the police. She has further denied that, as accused No.1 is her brother-in-law's son and the other accused persons are her relatives, inspite of her giving Statement as per Ex.P8 before the police, she is deposing falsely only to help the accused persons. The learned defence counsel was present and stated that he has no cross-examination of this witness.
14. PW4-Manjunath @ Manju is the maternal uncle of the victim girl. In his evidence before the court he has deposed that, CW1 is his elder sister, CW3 is his brother-in-law and CW2 is his sister's daughter. He has not seen the accused persons. He do not know them. He has not identified the accused persons in the accused platform located in the court hall. He do not know anything about this case. About 3 years back to the date of giving his evidence before the court, he had gone to the police station and the police obtained his signature on Mahazar-Ex.P1 and he has identified his signature as Ex.P1(c). He do not know the contents of Ex.P1. He do not know that the accused persons had taken his sister's daughter. He has not given any statement before the police. At this stage, this witness has been treated as hostile and subjected for cross-examination by the learned Public Prosecutor. In his cross-examination he has denied all the suggestions put to him that the accused No.1 has committed rape on the victim girl. He has also denied that, he has given statement which is marked as Ex.P9 before the police. He has also denied that, now the marriage of CW2 has been solemnized with another person and out of the said wedlock, a child is born and she is living happily and if he reveals the truth, the future life of CW2 will be affected, 16 Spl CC No.230/2016 so he is deposing falsely against the accused inspite of knowing all the facts. The learned defence counsel was present and stated that he has no cross-examination of this witness.
15. PW5-Dr.Jayanth.S.H, Assistant Professor, Department of Forensic Medicine, MS Ramaiah Medical College and Hospital, Bangalore has deposed before the court in his chief examination that, on 7.3.2016 at 5.40 p.m., accused NO.1 was produced before him with the Requisition of the Police Inspector for the medical examination and with the consent of accused No.1 by name Mohan, he examined him. He opined that the said person was aged about 22 years and there is nothing to suggest that the person is incapable of performing sexual intercourse. He has identified the Requisition given by the Police Inspector as per Ex.P10. He has issued the Medical Certificate of accused No.1 which is marked as Ex.P11 and his signature is marked as Ex.P11(a). Thereby this witness has discharged his duties by examining the accused No.1. The learned defence counsel was present and stated that he has no cross-examination of this witness.
16. PW6-AhalyaDevi, Principal, PVP PU College, Bangalore has deposed before the court that, on 7.5.2016, the Subramanyanagar Police sent a Requisition to issue Study Certificate of the victim girl of this case. As such, by referring the School Documents, she has given the date of birth of the victim girl as 23.7.2000. The Study Certificate of the victim girl is marked as Ex.P12 and her signature is marked as Ex.P12(a). She has also 17 Spl CC No.230/2016 issued copy of the Transfer Certificate of the victim girl which is marked as Ex.P13. The learned defence counsel was present and stated that he has no cross-examination of this witness.
17. PW7-Sriharsha.K.N- the then PSI of Subramanynagar police station and now Police Inspector of State Intelligence, has deposed before the court that, on 25.2.2016 at about 1 p.m., when he was on station duty, the complainant came to the police station and lodged a complaint. The complaint is marked as Ex.P5 and his signature is marked as Ex.P5(b). After receiving the complaint, he registered a case in Cr.No.33/2016 by preparing FIR which is marked as Ex.P14 and his signature is marked as Ex.P14(a) and sent the FIR to the concerned court and to his higher officers. Further he has deposed on the same day, he conducted spot panchanama and CW1 was present and shown the spot. The said Mahazar is marked as Ex.P6 and his signature is marked as Ex.P6(b). On the same day, he handed over the case file to CW19 for further investigation. Thus, he has performed his statutory duties by receiving the complaint and registering a case and preparing FIR, thereby, this witness has conducted part of investigation of this case. This witness has been cross-examination by the learned defence counsel. In his cross-examination, he has admitted that, he has prepared FIR as per the contents of the complaint. CW1 in her complaint as per Ex.P5 has stated that her daughter went to the school, but, she did not turn up and went missing. Other than this CW1 has not stated anything. He as denied that, he has not conducted mahazar and he is deposing falsely to help the police.
18 Spl CC No.230/201618. PW8- Vijay is the father of the victim girl. In his evidence before the court, he has deposed that CW2 is his daughter and CW1 is his wife. He do not know accused Nos. 1 to 4 and he has not seen them. During they ear 2016, CW2 was studying in 10th standard and she was aged 17 years and she used to go to the school in the morning and return home by evening. His wife had lodged a complaint, as CW2 was found missing. One week after lodging the complaint, his daughter/CW2 came back home. Further he has deposed that, when enquired with his daughter, she told that, she had gone to her friend's house and thereafter his wife had taken CW2 to the police station. His daughter had not told anything against these accused persons. He has also not told anything against the accused persons to the police. At this stage, this witness has been treated as hostile and subjected for cross- examination by the learned Public Prosecutor. In his cross- examination, he has denied that, he has given statement before the police as per Ex.P17. He has also denied that, accused NO.1 has committed rape on his daughter and the other accused persons have assisted him. He has admitted that, as his daughter has been married to some other persons, and she is living with her husband happily. But, he has denied that, for the said reason, he is deposing falsely against the accused persons. The learned defence counsel was present and stated that he has no cross- examination of this witness.
19. PW9-G.Ramachandra, Head Constable of complainant police station during the course of his evidence before the court has deposed that, on 7.3.32016 CW19 had ordered him to trace out 19 Spl CC No.230/2016 accused No.1 of this case, likewise, himself and CW14 went to Peenya 2nd Stage, and caught hold of accused No.1 and produced him before the Police Inspector and given his statement. He has identified accused No.1 who was present before the court as the person whom he had apprehended. Hence, this witness has performed his statutory duties, by apprehending the accused No.1, as per the orders of his higher officer. This witness has been examined by learned defence counsel. In his cross-examination, he has denied that, he has not apprehended accused No.1. He has admitted that he has not given any Report, but he has given the Statement.
20. PW10- Naveen-Police Constable has deposed before this court in his chief examination that, on 3.4.2016, CW20 had instructed him to collect the medical certificate of accused No.1 and also the sealed articles. As per the orders of CW20, he went to M.S.Ramaiah Hospital and collected the Medical Report and one cover and produced them before CW20 and given his Report as per Ex.P15 and his signature is marked as Ex.15(a). Hence, this witness has performed his statutory duties, by collecting the medical record and sealed articles belonging to accused No.1 as per the orders of his higher officer. This witness has been examined by learned defence counsel. In his cross-examination, he has admitted that, as per the orders of CW20, he went to MS Ramaiah Hospital and he has given Report to Police Inspector. Other than this, he do not know anything.
20 Spl CC No.230/201621. PW11- Dr.Urvashi, Assistant Professor, OBG, MS Ramaiah Hospital, Bangalore, has deposed in her evidence before the court that, on7.3.2016, at 6.45 p.m., she has examined the victim girl sent by Subramanyanagar police along with ASI Mala along with her uncle, with the history of sexual assault. She enquired with the victim girl who was aged 17 years and her uncle. After taking the consent of the uncle of the victim girl, she has examined the victim girl. On physical examination, she found that the victim girl was aged above 17 years and below 18 years. No external injuries were found on the body of the victim girl. On genital examination, no external injuries. There was old tear mark at 4'O clock and 7'O clock position on hymen. Accordingly she has issued Medical Certificate of the victim girl which is marked as Ex.P16 and her signature is Ex.P16(a). The signature of the uncle of the victim girl by name Venkatesh is marked as Ex.P16(b) and the signature of ASI- Mala is marked as Ex.P16(c). said reason, he is deposing falsely against the accused persons. Hence, this witness has performed her duties, by medically examining the victim girl. The learned defence counsel was present and stated that he has no cross-examination of this witness.
22. PW12- Arogyamma-SJPU Co-ordinator, in her evidence before the court has deposed that, on 7.3.2016, as per the request of CW19-Investigating Officer, she sent to Subrmanyanagar police station to counsel the victim girl of this case. She conducted the counseling of the victim girl and the victim girl has given her statement before her as per Ex.P3 that, accused No.1 has committed rape on her [victim girl] on 27.2.2016 in a house for 21 Spl CC No.230/2016 3 to 4 times repeatedly. She has recorded the statement of the victim girl as stated by her. This witness has been cross- examined by the learned defence counsel for Accused Nos. 1 and 4. She has denied all the suggestions put to her that, she has not conducted the counseling of the victim girl and the victim girl has not given her statement as per Ex.P3 and she has created Ex.P3 at the instigation of the police. The learned defence counsel for the other accused have adopted the above cross-examination.
23. PW13-Govindaraju.R, is the Police Inspector/Investigating Officer of this case. In his evidence he has deposed to the investigation done by him by sending the accused No.1 and the victim girl to the medical examination, obtaining their medical reports, obtaining the school documents of the victim girl, conducting of spot panchanama, obtaining the statement of the victim girl recorded under Sec.164 of Cr.P.C and after completion of investigation, he has submitted charge-sheet before this court. Hence, this witness has performed his statutory duties by conducting his investigation and submitting charge-sheet before this court. This witness has been cross-examined by the learned defence counsel.
24. Considering the evidence of the prosecution witnesses, particularly, the evidence of the victim girl and her parents all these 3 witness have totally turned hostile to the prosecution case and they have not supported the case of the prosecution to bring home the guilt of the accused beyond all reasonable doubt that, the accused No.1 enticed the victim girl/PW1 on the pretext that he 22 Spl CC No.230/2016 will marry her and at the instigation of other accused persons, he took her to Tamil Nadu and again brought her back to Bangalore and took her to a house at Banaswadi belonging to CW5 and when no one were in the said house, accused No.1 committed aggravated penetrative sexual assault on her repeatedly, knowingly fully well that the victim girl was a minor. Hence, there is no chain to link the accused with the alleged crime. Though the evidence of the Doctor and the police officials are corroborative that, the victim girl was subjected to aggravated penetrative sexual assault by the accused and the victim girl was subjected to medical examination and the accused was arrested, but, they do not come to the aid of the prosecution, as because the victim girl and her parents who are examined as PWs-1, 2 and 8 have totally turned hostile to the prosecution case and they have not supported the prosecution case. Even the circumstantial witness and mahazar witness have also turned hostile to the prosecution case and they have not supported the prosecution case.
25. Even it has come in the evidence of PWs-1, 2, 4 and 8 that, now the victim girl is married with another person and out of the said wedlock, a child is born to them and she is living happy married life. Hence, all these witnesses have turned hostile to the prosecution case. Thereby, I find no necessity to evaluate in detail the evidence given by the Investigating Officer. Under these circumstances I hold that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt. Therefore, for lack of evidence, the accused Nos. 1 to 4 are entitled for an order 23 Spl CC No.230/2016 of acquittal from the hands of this court. Accordingly, I answer Point Nos.1 to 3 in the Negative.
26. POINT NO.4:-:- In view of my findings on Point Nos.1 to 3 above, I proceed to pass the following:
ORDER Acting under Sec.235(1) of Cr.P.C, I hereby acquit accused Nos. 1 to 4 of the offences punishable under Secs.363, 109 r/w Sec.34 of IPC and Sec.17 of POCSO Act, 2012 and Sec. 376 of IPC and Sec.4 of POCSO Act, 2012.Bail bonds and surety bonds of accused Nos. 2
to 4 stands cancelled.
MO-1 i.e., Item No.1 in PF No.30/2016 being
worthless is ordered to be destroyed after the appeal
period is over.
[Dictated to the Stenographer directly on the computer, corrected carried out and then pronounced by me in the open court on this the 17th day of June, 2019] [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
ANNEXURES:
Witnesses examined for the prosecution:
PW.1 Victim girl CW2 23.11.2018 24 Spl CC No.230/2016 PW.2 Nandini CW1 20.12.2018 PW.3 Vasanthamma CW5 4.1.2019 PW.4 Manjunatha @ Manju CW4 13.2.2019 PW.5 Dr.Jayanth.S.H. CW11 21.2.2019 PW.6 Ahalya Devi CW9 21.2.2019 PW.7 Sriharsha.K.N. CW18 12.3.2019 PW.8 Vijay CW3 12.3.2019 PW.9 G.Ramachandra CW13 12.3.2019 PW.10 Naveen CW15 12.3.2019 PW.11 Dr.Urvashi CW10 29.3.2019 PW.12 Arogyamma CW6 29.3.2019 PW.13 Govindaraju.R CW19 5.4.2019 Documents marked for the prosecution: Ex.P1 Spot Panchanama of the incident Ex.P1(a) Signature of PW1/victim girl Ex.P1(b) Signature of PW2 Ex.P1(c) Signature of PW4 Ex.P1(d) Signature of PW13 Ex.P2 Statement of PW1/victim girl given before the Learned Magistrate under Sec.164 of Cr.P.C Ex.P2(a) Signature of PW1/victim girl Ex.P3 Statement of PW1/victim girl given before PW12-SJPU Co-ordinator Ex.P3(a) Signature of PW12 Ex.P4 Further statement of PW1/victim girl Ex.P5 Complaint dated: 25.2.2016 lodged by PW2/complainant/mother of the victim girl before the complainant police 25 Spl CC No.230/2016 Ex.P5(a) Signature of PW2 Ex.P5(b) Signature of PW7 Ex.P6 Spot Panchanama of the alleged incident Ex.P6(a) Signature of PW2 Ex.P6(b) Signature of PW7 Ex.P7 Statement of PW2 given before the complainant police under Sec.161 of Cr.P.C Ex.P8 Statement of PW3 given before the complainant police under Sec.161 of Cr.P.C Ex.P9 Statement of PW4 given before the complainant police under Sec.161 of Cr.P.C Ex.P10 Requisition given by Investigating Officer/PW13
to PW5 for conducting medical examination of accused No.1 Ex.P11 Medical Certificate of accused No.1-Mohan Ex.P11(a) Signature of PW5 Ex.P11(b) Signature of PW13 Ex.P12 Study Certificate issued by the Principal, PVP Pre-University College for Women, Rajajinagar, Bangalore wherein PW1/victim girl was studying showing the date of birth of PW1/victim girl as 23.7.2000 Ex.P12(a) Signature of PW6 Ex.P12(b) Signature of PW13 Ex.P13 Transfer Certificate of PW1/victim girl showing the date of birth of PW1/victim girl as 23.7.2000 Ex.P13(a) Signature of PW13 26 Spl CC No.230/2016 Ex.P14 FIR Ex.P14(a) Signature of PW7 Ex.P15 Report given by PW10 regarding collecting of the articles pertaining to accused No.1 and producing the said articles before the Police Inspector of the complainant police station Ex.P15(a) Signature of PW10 Ex.P16 Medical Certificate of PW1/victim girl Ex.P16(a) Signature of PW11 Ex.P16(b) Signature of victim girl's maternal uncle by name Venkatesh Ex.P16(c) Signature of CW17-Woman ASI- C.S.Mala Ex.P16(d) Signature of PW13 Ex.P17 Statement of PW8/father of the victim girl given before the complainant police under Sec.161 of Cr.P.C Ex.P18 FSL Report [consent marked] Material Object marked for the prosecution:
MO-1 Sealed article [Item No.1 in PF No.30/2016] MO-1(a) Signature of PW13 Witness examined, documents, MO marked for accused Nos. 1 to 4: NIL [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.27 Spl CC No.230/2016
17.6.2019 Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(1) of Cr.P.C, I hereby acquit accused Nos. 1 to 4 of the offences punishable under Secs.363, 109 r/w Sec.34 of IPC and Sec.17 of POCSO Act, 2012 and Sec. 376 of IPC and Sec.4 of POCSO Act, 2012.
Bail bonds and surety bonds of
accused Nos. 2 to 4 stands cancelled.
MO-1 i.e., Item No.1 in PF No.30/2016
being worthless is ordered to be
destroyed after the appeal period is
over.
[R.SHARADA]]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.28 Spl CC No.230/2016