Bangalore District Court
State By Hebbal Police Station vs Deepak Kumar Swain on 21 November, 2020
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the, 21 st day of, November, 2020.
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.1047/2019
COMPLAINANT: State by Hebbal Police Station,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Deepak Kumar Swain,
Son of Ratnakar Swain,
Aged about 21 years,
Snow City, J.C.Nagar Main Road,
Near Funword,
Bengalore.
[By Advocate Sri. T. Sateesha ]
1. Date of commission of offence 18.06.2019
2. Date of report of occurrence 19.06.2019
of the offence
3. Date of arrest of accused 26.06.2019 since the date of his arrest i.e.,
from 26.06.2019 till date the accused is in
the judicial custody.
4. Date of commencement of 17.10.2019
evidence
5. Date of closing of evidence 10.11.2020
2 Spl CC No.1047/2019
6. Name of the complainant Smt Vijaya.S Mother of the Victim girl
7. Offences complained of Under Sec. 363, 366(A), 376 of IPC and
[As per charge-sheet] Sec, 4 and 6 of POCSO Act.
8. Opinion of the Judge The accused is acquitted.
JUDGEMENT
The Police Inspector, Hebbal police station has filed charge-sheet against the accused for the offences punishable Under Secs. 363, 366(A), 376 of IPC and Secs. 4 and 6 of POCSO Act, 2012.
2. The brief facts of the prosecution case is that, the complainant who is none other than the mother of the victim girl, had lodged a missing complaint with the complainant police stating that, her daughter/ victim girl who was aged 16 years that on 18.6.2019 in the afternoon at 3.30 P.M., went out of the house, but did not turn up. Inspite of her search, she was not traced out. The complainant suspected that, the accused herein might have kidnapped her daughter, thereby, she prayed to trace out her daughter. On the basis of the said complaint, the complainant police have registered a case in Cr.No.101/2019 against the accused for the offence punishable under Sec.363 of IPC and commenced investigation. During the course of investigation, on 24.6.2019, the victim girl was traced out and on her enquiry, she revealed that, she came in contact with the accused about 9months 3 Spl CC No.1047/2019 back to the date of giving her statement and he used to talk to her and he told that he is in love with her, but, she told that she is still minor in age and she wants to pursue her studies, but the accused told that they would be good friends and started to roam together. But, the accused was telling that he is in love with her and he will marry her, by heeding to his words, the victim girl also started to love him. By taking the advantage, the accused took her to his friend's room at J.C.Nagar and when one was in the said house, the accused by telling that he will marry her, committed rape/ aggravated penetrative sexual assault on her repeatedly by securing her to the said room. The parents of the victim girl came to know about the love affairs of their daughter with the accused and they scolded her and annoyed by this, she asked the accused to go elsewhere and to get married. So on 18.6.2019, in the afternoon, she came out of the house and reached SultanPalya bus stop and telephoned to the accused that she has left her house, after some time, the accused came to the said Bus stop and took the victim girl along with him to Orissa , but as the accused was not having money, he brought back the victim girl to Bengaluru and asked her to go back to the house. But the accused did not have any sexual intercourse with her during their journey to Orissa in the rail or in the railway station. But he has committed rape/ aggravated penetrative sexual assault on her in his friend's house at J.C.Nagar, Bangalore, under the guise of marrying her, hence, the victim girl has requested the police to take action against the accused. Based on the said statement of the victim girl, the Investigating Officer has inserted 4 Spl CC No.1047/2019 Secs. 366(A), 376 of IPC and Secs. 4 and 6 of POCSO Act and continued with the investigation by arresting the accused on 26.06.2019, taken him to remand and remanded the accused to the judicial custody. Thereafter the Investigating Officer further continued with the investigation by recording the statements of the witnesses and after completion of investigation, he has filed charge- sheet against the accused, which is numbered as Spl CC No.1047/2019. Since the date of his arrest i.e., from 26.06.2019 till date the accused is in the judicial custody.
3. 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, he pleaded not guilty, claims to be tried. Accordingly, the trial is fixed, summons issued to the prosecution witnesses.
4. The prosecution has examined 5 witnesses as PWs-1 to 5 and got marked 18 documents as Exs.P1 to P18. As per Sec.33(2) of POCSO Act 2012, the evidence of the victim girl has been recorded in the presence of her mother. Thereafter Statement of the accused recorded under Sec.313 of Cr.P.C. The accused has denied all the incriminating evidence told to him, but he has not examined any witnesses on his behalf and no documents are marked.
5 Spl CC No.1047/20195. 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/ victim girl aged 16 years being the daughter of CWs-1 and 3 , and residing with her parents, the accused inspite of knowing that CW2/ victim girl was minor in age, by enticing that he is in love with her and that he will marry her about 3 to 4 months prior to the date of giving complaint by CW1 on 18.6.2019, the accused took CW2/ victim girl to the house of CW7 thereby the accused has committed an offence punishable under Sec. 366 of IPC?
2. Whether the prosecution further proves that, on the same day and at the same time and at the same place, the accused not only took CW2/ victim girl to the house of CW7, but committed rape/ aggravated penetrative sexual assault on her repeatedly thereby the accused has committed an offence punishable under Sec.376 of IPC and Sec.6 of POCSO Act 2012 ?
3. What Order?6 Spl CC No.1047/2019
6. My findings on the above points are as under:
Point Nos.1 and 2 In the Negative, Point No .3: As per the final order, for the following:
REASONS
7. POINT NOS.1 AND 2:- These Points are inter-linked to each other, hence, they are taken up together for common discussion in order to avoid repetition of facts and evidence.
8. During the course of arguments, the learned Public Prosecutor has submitted that in order to prove the prosecution case totally 5 witnesses are examined as PWs-1 to 5 and 18 documents are marked as Exs.P1 to P18. Though the victim girl , her parents, her grandmother and the brother-in-law of the victim girl have not supported the case of the prosecution but the court has to look into the facts and circumstances of the case along with chief examination evidence of the prosecution to bring home the guilt of the accused. Apart from that, according to Sec.29 of POCSO Act, 2012, there is burden casted upon the accused to prove his innocence, but, he has 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.
7 Spl CC No.1047/20199. 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, her parents, her grandmother, her brother-in-law have totally turned hostile to the prosecution case when they were subjected to the cross-examination by the learned Public Prosecutor, these witnesses have denied all the suggestions put to them supporting their chief evidence. Even the prosecution has not examined the Lady Doctor who has conducted the physical examination of the victim girl. Besides that, the prosecution has also not examined any of the police officials and the Investigation Officer who has completed the investigation and filed charge-sheet against the accused. When the material prosecution witnesses have turned hostile to the prosecution case, and when the other material prosecution witnesses are not examined before this court by the court, the accused is entitled for an order of acquittal from the hands of this court. With this, 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 5 witnesses, out of them, PW1/CW2 is the victim girl. PW2/CW1 is complainant as well as the mother of the victim girl who deposed to have lodged a missing complaint of her daughter/ victim girl. PW3/CW3 is the father of the victim girl. PW4/CW4 is the grandmother of the victim girl and PW5/CW6 is the brother-in-law of the victim girl.
8 Spl CC No.1047/2019In support of his case, the learned Public Prosecutor has produced as many as 18 documents: Ex.P1 is the Complaint dated:
19.6.2019, Ex.P2 is the Spot Panchanama. Ex.P3 is the Statement of the victim girl given before the complainant police under Sec.161 of Cr.P.C. Exs.P4 and P5 are the Statement of the victim girl given before the Learned Magistrate under Sec.164 of Cr.P.C.
Ex.P6 is the Further statement of the victim girl. Ex.P7 is the statement of PW3 given before the complainant police under Sec.161 of Cr.P.C. Ex.P8 is the statement of PW4 given before the complainant police under Sec.161 of Cr.P.C. Ex.P9 is the statement of PW5 given before the complainant police under Sec.161 of Cr.P.C. Ex.P10 is the PUC Application Form of the victim girl. Ex.P11 is the Medical Report of the accused. Ex.P12 is the FSL Report. Ex.P13 is the Sample seal. Ex.P14 is the Acknowledgement issued by FSL, Madiwala, Bengaluru. Ex.P15 is the Report given by Woman PC 17196 with regard to taking the victim girl to Lady Curzon and Bowring Hospital for medical examination and collecting the sealed articles. Ex.P16 is the Report given by the Head Constable 7376 with regard to tracing out the accused, apprehending him and producing him before the Police Inspector of the complainant police station. Ex.P17 is the Report given by Head constable 6959 with regard to taking the sealed articles of this case and handing it over to FSL, Madiwala, Bangalore for chemical examination and Ex.P18 is the FIR.
9 Spl CC No.1047/201911. Now coming to the evaluation of the evidence given by the above prosecution witnesses , I would like to take up firstly the evidence given by the victim girl who is examined as PW1 before the court. PW1 in her evidence has stated about her family status. Further she has deposed that, she knows the accused and she has identified the accused in the accused platform located in the court hall. At the time of giving her evidence, she was aged 16 years and studying in 1st year PUC. Her mother had lodged the complaint at that time, she was studying in 10 th standard and also going to work in Snow City. The accused was also working in the said Snow City, like that she came in contact with the accused. Herself and the accused were in love with each other from the past 6 months. This fact came to the knowledge of her family. On 18.6.2019, herself and the accused had gone to Odissa by bus and they stayed in a hotel. They both went to Odissa via Vijawada. In Odissa, in the hotel where they were staying, the police came there and brought them back to Bengaluru as her mother had lodged missing complaint so Hebbal Police had come to Odissa. During their stay in Odissa, they did not do anything. Further she has deposed that, when she came to Hebbal police station, her father and mother were there. The police enquired with her. She was sent before the Learned Magistrate who recorded her statement under Sec.164 of Cr.P.C, which is as per Ex.P4 and her signature is as per Ex.P4(a). Another statement under Sec.164 of Cr.P.C is as per Ex.P5 and her signature is as per Ex.P5(a). The learned Public Prosecutor treated this witness as partly hostile and subjected her to cross-examination. In her cross-examination she has admitted 10 Spl CC No.1047/2019 that, the police had sent her to Bowring Hospital, but she has denied that, the doctor has conducted the medical examination on her. Further she has denied that, on 6.7.2019, she has given further statement before the police. She has also denied that, she has given statement that, the accused took her to Odissa and kept her in a hotel and committed rape on her. She has also denied that, likewise she has given further statement to the police as per Ex.P6. She has also denied that, she has compromised with the accused and deposing falsely. She has also denied that, her family members and the family members of the accused are making arrangements to perform their marriage, and for that purpose, she is deposing falsely and if she reveals the truth, her future will be affected. This witness was cross-examined by the learned counsel for the accused. In her cross-examination, she has stated that, her grandmother's house is situated at Vellore, Tamil Nadu, on 18.6.2019, she went to Vellore without informing to anybody in her house and stayed there for 3 to 4 days and she herself came back to the house is admitted by her. In the meantime, her mother had lodged a complaint with the Hebbal police is also admitted by her. Thereafter, her mother took her to Hebbal police and she has stated before the police, that she had gone to her grandmother's house. She has admitted that, she do not know the contents of Exs.P3 and P6, but as the police said, she has put her signatures on those 2 documents. Further she has admitted that, on 18.6.2019, the accused had not taken to Odissa. She has also further admitted that, as stated in her chief examination, she was not taken by the accused from Bangalore to Vijayawada and from there to Odissa.
11 Spl CC No.1047/2019She has also further admitted that, the accused had not kept her in a Hotel in Odissa. She has also admitted that, she had falsely stated that, as her mother had lodged a missing complaint, Hebbal police had come to Odissa. She has also admitted that, she was not brought back from Oddissa to Bangalore. She has also admitted that, the accused did not misbehaved with her and he did not do any sexual assault on her. She has also admitted that, the accused was only her friend and they did not have any physical relationship between them. She has also admitted that, she has not stated anything against the accused before anyone. This witness was re-examined by the learned Public Prosecutor. In her re-examination, she has denied that, after giving her evidence in chief, she has compromised with the accused and deposing falsely.
12. PW2 is the mother of the victim girl. In her evidence before the court she has deposed that, victim girl is her daughter and she is aged 17 years of age. Her daughter was working in a private company and she was going to work from 9 A.M., to 7.30 P.M. One day her daughter was in the house and on that afternoon, she [PW2] had gone to Temple, at that time, her daughter told her [PW2] mother-in-law that she is going to bank and went out of the house, but, her daughter did not turn up. So, being afraid of that, she [PW2] lodged the complaint. The said complaint is as per Ex.P1 and her signature is as per Ex.P1(a). Further she has deposed that, on the date of lodging the complaint, her daughter came back to the home and when she enquired with 12 Spl CC No.1047/2019 her daughter, her daughter had told that she had gone to her grandmother's house, in the meantime, she had lodged a complaint. The police had come near her house and conducted Mahazar which is as per Ex.P2 and her signature is as per Ex.P2(a). She has identified the statement given by her daughter which is as per Ex.P3 and her signature is as per Ex.P3(a). The accused is working along with her daughter. The accused has not caused any trouble neither to her nor to her daughter and she has not given any complaint against the accused and the police have not further enquired with her and she has not stated anything against the accused. This witness was cross-examined by the learned counsel for the accused. In her cross-examination, she has admitted that, she do not know the contents of Ex.P1 and as per the say of the police she has signed on it, likewise, she do not know the contents of Exs.P2 and P3. She has admitted that, the accused has not caused any trouble to her daughter.
13. PW3 is the father of the victim girl. In her evidence before the court, he has deposed that, CW1 is his wife, CW2 is his daughter, CW4 is his mother and CW5 is his brother. He knows the accused and he can identify the accused. His wife had lodged the complaint at that time, his daughter was aged 17 years and she was studying in 1st year PUC, one day his daughter went to the college but, did not turn up for 4 days, inspite of search, his daughter was not traced out, so his wife had lodged the complaint, 4 days after lodging the complaint, his daughter was traced out and when enquired with her, she had told that she had gone to her 13 Spl CC No.1047/2019 grandmother's house at Vellore, he has not given any statement before the police and the accused has not caused any trouble to them. The learned Public Prosecutor treated this witness as hostile and subjected him to cross-examination. In his cross- examination, he has admitted that, after his wife lodged the complaint, his daughter returned to the house on 23.6.2019. He has further admitted that, when he enquired with his daughter, she told that the accused took her along with him and they roamed together. But he has denied the suggestion that, the accused took his daughter to Odissa and kept her in a house and committed rape on his daughter. Further he has denied the suggestion that, likewise, he has given his statement before the police, and the said statement is as per Ex.P7. Further he has denied that, inspite of giving statement as per Ex.P7 that the accused has committed rape on his daughter, he is deposing falsely in order to help the accused. This witness was cross-examined by the learned counsel for the accused. In his cross-examination, he has admitted that, on 18.6.2019, his daughter was in the house of CW4 and at that time, his mother was in Vellore. He has also admitted that, his daughter was in that house for 4 to 5 days. He has also admitted that, his daughter has not told that the accused had taken her along with him.
14. PW4 is the grandmother of the victim girl. In her evidence before the court, she has deposed that, during the year 2018-2019 she was staying in Vellore, CW1 is her daughter-in-law, CW2 is her grand-daughter, she do not know the accused, she has not 14 Spl CC No.1047/2019 identified the accused when shown to her. CW1 had lodged the complaint at that time, her grand-daughter was 17 years of age and she was studying in 1 st year PUC, but one day, her grand-daughter came to Vellore and she stayed in her house for 4 days, so CW1 had lodged a complaint, other than this, she do not know anything. She has not given any statement to the police. The accused has not caused any trouble to her. The learned Public Prosecutor treated this witness as hostile and subjected her to cross-examination. In her cross-examination, she has denied that, after her daughter-in-law lodged the complaint, her grand-daughter came to the house on 23.6.2019, she has also denied that, the accused took her grand-daughter along with him to Oddisa and kept her in a room and committed rape on her grand-daughter. She has also denied that, likewise, she has given her statement to the police. The said Statement is as per Ex.P8 . Further she has denied that, inspite of giving statement as per Ex.P8 that the accused has committed rape on her grand- daughter, she is deposing falsely in order to help the accused. This witness was not cross-examined by the learned counsel for the accused.
15. PW5 is the brother-in-law of the victim girl. In his evidence before the court he has deposed that, CW1 is his mother-in-law and CW3 is his father-in-law. He knows CW2 as she is the daughter of CW1. He do not know the accused and he has not identified the accused when shown to him. The complaint was lodged by CW1 at that time, CW2 was aged 17 years and she was studying in 1st year PUC, one day CW2 had come to his house 15 Spl CC No.1047/2019 ie., to Vellore and stayed there for 4 days, in the meantime, CW1 had lodged a complaint. other than this, he do not know anything. he has not given any statement to the police. The accused has not caused any trouble to him. The learned Public Prosecutor treated this witness as hostile and subjected him to cross-examination. In his cross-examination, he has denied that, after his mother-in-law lodged the complaint, CW2 came to the house on 23.6.2019, he has also denied that, the accused took CW2 along with him to Oddisa and kept her in a room and committed rape on her. He has also denied that, likewise, he has given statement to the police. The said Statement is as per Ex.P9 . Further he has denied that, inspite of giving statement as per Ex.P9 that the accused has committed rape on CW2, he is deposing falsely in order to help the accused. This witness was not cross-examined by the learned counsel for the accused.
16. Considering the evidence of the above prosecution witnesses, all the 5 witnesses 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 eloped the victim girl, took her to Oddissa, kept her in a hotel and committed rape/ aggravated penetrative sexual assault on her repeatedly, knowing fully well that the victim girl was a minor. Hence, there is no chain to link the accused with the alleged crime. Of course, the Victim girl in her chief evidence has stated that, herself and the accused were had been to Oddisa, but in the cross-examination on behalf of the 16 Spl CC No.1047/2019 learned defence counsel, the victim girl has deposed that, she had been to Vellore voluntarily and the accused had not taken her to anywhere. The prosecution to this extent has not confronted the said witness. Thereby, on the basis of the one stray sentence, the accused cannot be convicted for the offence punishable under Sec.366 of IPC. Apart from that, the prosecution has not examined the Lady doctor who has physically examined the victim girl and also the Investigating Officer who has conducted investigation and filed charge-sheet. This is also is fatal to the case of the prosecution. Thereby, I am of the view that the accused is entitled for an order of acquittal from the hands of this court. Of course, the presumption under Sec.29 of POCSO Act, 2012 goes against the accused but, the prosecution has to prove its case by furnishing cogent evidence but it failed to do so, thereby, I hold that, the prosecution has not proved the guilt of the accused and the accused is entitled for an order of acquittal. Accordingly, I answer Point Nos.1 and 2 in the Negative.
17. In the present case, the victim girl was awarded Rs.1,00,000/- as interim compensation. But, now as per the discussions made by me herein above, the victim girl has deposed before the court that, she has not suffered any sexual assault on her from the accused . Further the victim girl has also stated that, her family members and the family members of the accused are making marriage talks to perform her marriage with the accused. Considering these aspects, I find no reasons to award further compensation to the victim girl as per the provisions under Rule 9 17 Spl CC No.1047/2019 of POCSO Rules 2020, as such no compensation is awarded to the victim girl.
18. POINT NO.3:-:- In view of my findings on Point Nos.1 and 2 above, I proceed to pass the following:
ORDER Acting under Sec.235(1) of Cr.P.C, I hereby acquit the accused of the offences punishable under Sec.366 of IPC, Sec.376 of IPC and Sec.6 of POCSO Act 2012.
[Dictated to the Stenographer directly on the computer, corrected carried out and then pronounced by me in the open court on this the 21 st day of November, 2020] [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 CW-2 17.10.2019 PW-2 Vijaya CW-1 13.02.2020 PW-3 Ganesh CW-3 10.11.2020 PW-4 Ponamma CW-4 10.11.2020 PW-5 Anand CW-6 10.11.2020 18 Spl CC No.1047/2019 Documents marked for the prosecution: Ex. P1 Complaint dated: 19.06.2019 lodged by the complainant. Ex.P1(a) Signature of PW-2 Ex.P2 Panchanama Ex.P2(a) Signature of PW-2 Ex.P3 161 Cr.P.C Statement Ex.P3(a) Signature of PW-2 Ex.P4 164 Cr.P.C Statement Ex.P4(a) Signature of PW-1 Ex.P5 164 Cr.P.C Statement Ex.P5(a) Signature of PW-1 Ex.P6 Further statement of PW-1 Ex.P7 Statement of PW-3 Ex.P8 Statement of PW-4 Ex.P9 Statement of PW-5 Ex.P10 College Application Form Ex.P11 Medical Report of Accused Ex.P12 FSL Report (Consent marked) Ex.P13 Sample seal (Consent marked) Ex.P14 Acknowledgement (Consent marked) Ex.P15 Report given by WPC (Consent marked) Ex.P16 Report given by HC (Consent marked) Ex.P17 Report given by HC (Consent marked) Ex.P18 FIR (Consent marked) Witness examined, documents, marked for the accused: NIL [R.SHARADA]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.19 Spl CC No.1047/2019
21.11.2020 Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(1) of Cr.P.C, I hereby acquit the accused of the offences punishable under Sec.366 of IPC, Sec.376 of IPC and Sec.6 of POCSO Act 2012.
[R.SHARADA]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.20 Spl CC No.1047/2019