Bangalore District Court
State By Yeshwanthapura Police vs Narayanaswamy on 31 March, 2017
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS JUDGE AT
BANGALORE CITY (CCH-55)
Dated this the 31st 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.35/2015
COMPLAINANT State by Yeshwanthapura Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Narayanaswamy,
Son of Late. Munithimmaiah,
Aged 35 Years,
Residing at No.166, 8th Cross, 1st Main,
B.K.Nagar, Yeshwanthapura,
Bangalore.
(By Ms.Mamatha.J- Standing counsel]
1. Date of commission of offence 13.6.2014
2. Date of report of occurrence of 8.9.2014
the offence
3. Date of arrest of accused 08.09.2014
4. Date of bail order 31.08.2015
2 Spl.C.C.No.35/2015
5. Period undergone in custody Since the date of arrest, the
accused is in judicial custody
by the accused
[as he has not offered surety]
6. Date of commencement of 16.11.2015
evidence
7. Date of closing of evidence 14.3.2017
8. Name of the complainant Smt.Anju-mother of the victim
girl
9. Offences complained of Secs. 376 and 506 of IPC and
under secs. 8, 5(a) r/w Sec.6 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.376 and 506 of IPC
and under Sec. 5(l) r/w Sec.6 of
POCSO Act, 2012 and under
Sec.8 of POCSO Act, 2012.
3 Spl.C.C.No.35/2015
JUDGMENT
Police Inspector, Yeshwanthapura Police Station, Bangalore, has submitted charge sheet against the accused in Crime No.346/2014 for the offences punishable Under Secs. 376 and 506 of IPC and under secs. 8, 5(a) r/w Sec.6 of POCSO Act, 2012.
2. The prosecution case, briefly stated:
That on 8.9.2014, the complainant/mother of the victim girl lodged a Complaint-Ex.P2 with the complainant Police Station alleging that, she has 2 daughters and a son, her daughter/victim girl is aged 14 years, 3 months prior to lodging of this complaint, she and her son had gone to Bhaktharahalli by leaving her husband[who is the accused herein], her 2 daughters and the daughter of the sister of the accused, she returned to her house on the next day at about 1-1.30 P.M., at that time, her 2 daughters and the daughter of the sister of the accused were crying, her husband was not in the house, then she enquired them as to what happened, the victim girl told that, when she [complainant] had gone to out of the house to her native place, at that time, the accused [being the father of the victim girl] took the victim girl to the Kitchen and committed rape on her, after coming to know the rape committed by her husband [accused] on the victim girl, she [complainant] told the victim girl not to tell the said fact to anybody and she was waiting for the accused to come to the house, but, the accused did not come to the house, but, her husband came to the come on 7.9.2014 at about 11.30 P.M., and knocked the door , she opened the door and saw that her husband was standing 4 Spl.C.C.No.35/2015 outside, by seeing her, he caught hold of her neck, then she started screaming, and the neighbours came to their house, by seeing them, her husband ran away, again by 3.30 A.M., her husband came and knocked the door of the house, she was frightened and telephoned to the police, after some times, the police came to her house, she told the police that her husband done galata and was inside the house, then the police took her husband to the Police Station and thereafter she came to Yeshwanthapura Police Station and lodged the complaint.
3. On the basis of the said complaint, a case was registered against the accused in Cr.No.346/2014 as per FIR-Ex.P16 Thereafter, criminal law was set in motion. The Investigating Agency commenced the investigation. On 08.09.2014 the police arrested the accused and recorded his voluntary statement, sent the accused and the victim girl for medical examination and conducted spot mahazar and after completion of the investigation formalities, charge-sheet has been filed against the accused for the offences punishable under Secs. 376 and 506 of IPC and under secs. 8, 5(a) r/w Sec.6 of POCSO Act, 2012
4. The accused was secured on 8.9.2014, though he was granted bail, as he had not offered surety, he has been in judicial custody since the date of his arrest. 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 Spl.C.C.No.35/20155. After hearing the learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in- office has framed the Charge on 3.9.2015 for the offences punishable under Secs. 376 and 506 of IPC and under Sec.5(l) r/w Sec.6 of POCSO Act, 2012 and under Sec.8 of POCSO Act, 2012 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed trial.
6. The prosecution in order to bring home the guilt of the accused has examined in all 21 witnesses as PWs-1 to 21, out of the total 28 witnesses as shown in charge-sheet and got marked 16 documents at Exs.P1 to P16 and got marked 2 Material Objects as MOs-1 and 2.
7. Now at this stage, it is necessary to mention that, there are 28 witnesses as cited in the charge-sheet and the prosecution has examined only 21 witnesses. CW4, CW5, CW11, CW18, CW20, CW25 and CW28 were not examined by the prosecution. CW4-witness to the spot mahazar-Ex.P1, CW5- mother of the complainant, CW11-neighbour of the complainant's house, CW18-Police constable who apprehended the accused and produced before the complainant police, CW20-Police constable who took the sealed articles to FSL, CW25-PSI who took the victim girl before the Learned Magistrate for recording the statement under Sec.164 of Cr.P.C and CW28-Police Inspector who is the Investigating Officer, were not examined by the prosecution. On perusal of the order sheet, it discloses that, CW4, CW18 and 6 Spl.C.C.No.35/2015 CW25 are given up as repetition. Inspite of summons issued to CW5, CW5 could not be secured for the reason that, CW5 was not in a position to talk and hence CW5 was droped and prayer for issue of summons to CW5 by learned Public Prosecutor was rejected vide Order dated: 7.12.2016. Further on perusal of the order sheet it discloses that, on several times, summons and warrants issued to CW11 and CW20, but, they could not secure. Hence, prayer made by learned Public Prosecutor to reissue summons to CW11 and CW20 was rejected and CW11 and CW20 were dropped vide Order dated: 2.3.2017. Likewise, on many ocassins, summons issued to CW28, but, CW28 could not secure, moreover, the accused has been in judicial custody since 2015, hence, prayer of learned Public Prosecutor to reissue summons to CW8 is rejected and CW25 is dropped vide Order dated: 14.3.2017.
8. 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, as his wife had illicit relationship with another man and as he had seen the same, he had done galata, for that reason, his wife has lodged a false complaint against him. However, the accused did not choose to lead any evidence in support of his defense.
7 Spl.C.C.No.35/20159. Heard the arguments of learned Public Prosecutor. The learned Standing counsel for the accused has filed Written Arguments.
10. As per the Charge leveled against this accused, the prosecution in this case has to prove the following Points:
1. Whether the prosecution proves beyond reasonable doubt that on 13.6.2014 at about 10.30 P.M., at house No.166, 8th Cross, 1st Main, B.K.Nagara, Yeshwanthapura, Bangalore, the accused being the father of the victim girl aged 15 years with an intention to commit rape on her minor daughter, sent his wife and son to their village and when the victim girl was sleeping in the house, the accused took her to the kitchen, closed her mouth and raped her and thereby he has committed an offence punishable under Sec.376 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that the accused committed aggravated penetrative sexual assault on the victim girl and thereby committed an offence punishable under Sec.5(l) r/w Sec.6 of POCSO Act, 2012?
3. Whether the prosecution further proves beyond reasonable doubt that, the accused committed sexual assault on the victim girl by touching her private parts and thereby committed an offence punishable under Sec.8 of POCSO Act, 2012?
4. Whether the prosecution further proves beyond reasonable doubt that, the accused threatened the victim girl who is his elder daughter with life threat if she were to disclose the fact of rape to anybody else, thus committed criminal intimidation with an intent to cause alarm to the 8 Spl.C.C.No.35/2015 victim girl and thereby he has committed the offence punishable under Sec.506 of IPC?
5. What Order?
11. My findings on the above points are as under:
Point Nos.1 to 4: In the NEGATIVE Point No.5: As per the final order, for the following:
REASONS
12. POINT NOS.1 TO 4: Consideration of these Four Points are based on the same facts and evidence and therefore, to avoid repetition, these Four points are taken together for discussion.
13. According to the prosecution, that on 13.6.2014 at about 10.30 P.M., the accused being the father of the victim girl aged 15 years with an intention to commit rape on her minor daughter, sent his wife and son to their village and when the victim girl was sleeping in the house situated at No.166, 8th Cross, 1st Main, B.K.Nagara, Yeshwanthapura, Bangalore,, the accused took her to the kitchen, closed her mouth and committed aggravated penetrative sexual assault on her. Hence, the accused has committed the offences as per the charge leveled against him.
14. 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 evidence of PWs-1 to 21. The nature of the witnesses examined by the prosecution are as under:
9 Spl.C.C.No.35/2015Pw.1 Anthony- Witness to the spot mahazar-Ex.P1 Pw.2 Anju-complainant as well as the mother of victim girl Pw.3 Victim girl Pw.4 Shailaja- Aunt of the victim girl Pw.5 Usha-sister of the victim girl Pw.6 Vedavathi-daughter of the sister of the accused Pw.7 M.Ramesh-Head Master of the school deposes about issuing of certificate attesting the date of birth of the victim girl as 12.4.2000 Pw.8 Dr.Praveen.S deposes about conducting of medical examination of the accused PW.9 Shamshad PW.10 Gracy neighbours of the complainant's house PW11 Mubana PW.12 Yellamma-WHC deposes about taking the victim girl before the Learned Magistrate for recording Statement under Sec.164 of Cr.P.C PW.13 C.R.Mahadevaiah- Head Constable deposes about taking the accused to M.S.Ramaiah Hospital for medical examination PW.14 P.P.Naryanareddy-the then ASI deposes about apprehending of the accused PW.15 Divakara.M -Head constable deposes about submitting of FIR to the court.
PW16 Nagarathnamma.K.S-WPC deposes about taking the victim girl to M.S.Ramaiah Hospital for medical examination PW17 Arogyamma- Co-ordinator, SJPU 10 Spl.C.C.No.35/2015 PW18 Dr.Gayathridevi.S, deposes about conducting the medical examination of the victim girl PW19 Jayarama- ASI deposes about collecting the sealed articles from M.S.Ramaiah hospital belonging to the victim girl PW20 Venkatesh.T- PSI deposes about deputing his police staffs to apprehend the accused PW21 Anjankumar.V- PSI deposes about receipt of the complaint-Ex.P2 and registering of FIR-Ex.P16
15. Before appreciating the evidence, it is better to have a glimpse of the evidence given by all witness.
16. PW1- witness to the Spot Mahazar-Ex.P1 deposes that, one year back [ PW1 was examined on 16.11.2015] the complainant police came to the house of CW1-complainant and conducted mahazar in the place wherein the complainant's husband committed rape on his own daughter and written the Mahazar- Ex.P1 and he has signed on Ex.P1.
17. PW2-complainant as well as the mother of the victim girl. Her evidence in nut-shell is that:
The victim girl is her daughter and in her house, she, her 2 daughters and another girl said to be the daughter of the accused's sister and her [PW2] son in all 5 members are residing in her house, the victim girl was studying in SSLC and she was aged 14 years, in the year 2014 in the month of July, one day, she had gone to her mother's house at Bhakthrahalli along with her son, at 11 Spl.C.C.No.35/2015 that time, her husband [accused herein], her 2 daughters and another girl were in the house and when she [PW2] came back to the house on the next day morning, her daughters complained about the sexual assault made by the accused on the victim girl, she immiedately called the accused over phone, as he had left for his mason work in other place, for a period of 3 months, the accused did not return to the home and after 3 months when the accused returned to the house, she opened the main door, at that time, the accused assaulted her and she telephoned to the complainant police and the police came and caught hold of the accused and took the Police Station wherein, she has lodged a Complaint, as per Ex.P2. The police sent her daughter to the hospital wherein she was medically examined and the Doctor has given the Medical Report of the victim girl as per Ex.P3 and she identified Three Photographs i.e., in one photo herself and her husband, in another photo her daughter and in the 3rd photo her family members marked as Exs.P5 to P7.
18. PW3-victim girl deposes similarly to the evidence of her mother-PW2. The Statement made by her before the Co-ordinator, SJPU is marked as Ex.P4 and she identified her Chudidhar pant marked as MO-1 and her Statement under Sec.164 of Cr.P.C given before the Learned Magistrate is marked as Ex.P8.
19. PW4-sister of PW2 deposes similarly to the evidence of PW2.
12 Spl.C.C.No.35/201520. PW5-sister of the victim girl deposes similarly to the evidence of PW3- victim girl.
21. PW6-another girl [accused's sister daughter] also deposes similarly to the evidence of PW3- victim girl.
22. PW7-Head Master of the school, wherein the victim girl was studying, deposes that, on 8.10.2014, as per the Requisition-Ex.P9 of the Yeshwanthapura police, he [PW7] has given Certificate attesting the date of birth of the victim girl as 12.4.2000 as per Ex.P10.
23. PW8-Dr.Praveen.S, of M.S.Ramaiah Hospital, Bangalore deposes that, on 8.9.2014, as per the requisition of Police Inspector of Yeshwnathapura Police Station, he examined the accused and given Medical Certificate of the accused as per Ex.P11.
24. PW9, PW10 and PW11-Neighbours of the complainant's house deposes about the sexual assault made by the accused on that night i..e, on 7/8.9.2014, but, they did not support the case of the prosecution. Therefore, Learned Public Prosecutor cross-examined them and during the course of their cross- examination, their Sec.161 Statements given before the complainant police are marked as Ex.P12, Ex.P13 and Ex.P14 respectively.
25. PW12-WHC deposes that, on 9.9.2014 as per the instructions of Police Inspector, she took the victim girl from Girls 13 Spl.C.C.No.35/2015 Balamandir to produce her before the 42nd ACMM, Bangalore for recording the Statement under Sec.164 of Cr.P.C and after recording the statement, she handed over the victim girl to her guardian and returned back to the Police Station and given Report.
26. PW13-Head constable deposes that on 8.9.2014 as per the instructions of Police Inspector, he took the accused to M.S.Ramaiah Hospital for medical examination and after medical examination, he brought back the accused and produced before the Police Inspector and given his Report.
27. PW14- the then ASI of complainant Police Station deposes that, on 7.9.2014 as per the instructions of Police Inspector, he went to the house of the complainant situated at No.166, 8th cross, 1st Main, BK Nagar, Bangalore and there, the husband of the complainant was making galata, and he apprehended the husband of the complainant and produced before the SHO and given his statement.
28. PW15-Head Constable deposes that, on 8.9.2014 as per the instructions of Police Inspector, he submitted the FIR before the court.
29. PW16- WPC deposes that, on 8.9.2014 as per the instructions of the Police Inspector, she took the victim girl for medical examination to M.S.Ramaiah Hospital and after medical 14 Spl.C.C.No.35/2015 examination, she produced the victim girl before the Police Inspector and given Report.
30. PW17-Co-ordinator, SJPU deposes that on 8.9.2014, as per the requisition of the Investigating Officer of the complainant Police Station, she recorded the statement of the victim girl as per Ex.P4.
31. PW18-Dr.Gayathridevi. S., deposes that on 8.9.2014 as per the requisition of the PSI of Yeshwanthapura Police Station, she examined the victim girl who was brought before her with the alleged history of sexual abuse. During the medical examination of the victim girl, she [PW18] noticed that, the hymen of the victim girl was not in-tact and completely ruptured and given Medical Certificate as per Ex.P3 and she has identified the pubic hair of the victim girl marked as MO-2.
32. PW19- ASI of complainant Police Station deposes that, on 14.10.2014, he collected the articles pertaining to the victim girl from M.S.Ramaiah Hospital and produced them before the Police Inspector and given his Report as per Ex.P15.
33. PW20-PSI deposes that, on 8.9.2014, he received phone call from PW2-Anju stating that, her husband was making galata and accordingly he [PW20] informed the night beat police to go to the house of PW2.
15 Spl.C.C.No.35/201534. PW21-PSI deposes that, on 8.9.2014, at about 8.45 A.M., he received the complaint as per Ex.P2 and registered the FIR as per Ex.P16.
35. On the basis of the aforesaid evidence of the prosecution witnesses, learned Public Prosecutor submitted his arguments. In his arguments, learned Public Prosecutor submitted that, the victim girl-PW3, her mother-PW2 and PW4 to PW6 deposed about the alleged crime committed by the accused and further the Doctor-PW18 deposes that, the victim girl was used to an act like that of sexual intercourse and she has given evidence to show that, the hymen of the victim girl was ruptured, further the Investigating Officer also deposed about the receipt of the information by PW2 over phone about the alleged galata and the accused was caught hold by the police at the time of galata and thereafter panchanama conducted and all formalities completed and the prosecution witnesses have deposed about the incident which connects the crime committed by the accused on the victim girl. Therefore, learned Public Prosecutor argued that, the prosecution evidence may be accepted and the accused may be convicted.
36. On the other hand, the learned Standing Counsel in the written arguments submitted that, there are contradictions in the evidence of the prosecution witnesses and the complainant filed false complaint with an intention to knock-off the property standing in the name of the accused and therefore, by filing of such false complaint, the accused has been behind the bars without 16 Spl.C.C.No.35/2015 committing any such crime, as alleged by the prosecution. Therefore, the learned Standing counsel prayed for acquittal of the accused.
37. After hearing the arguments advanced by both sides, it is necessary to scrutinize the evidence given by the prosecution witnesses in their cross-examination, so as to say whether the evidence of the prosecution witnesses can be accepted to prove the guilt of the accused. At the cost of repetition, the complainant, the victim girl and other 2 girls who are residing in the house of the complainant and also the sister of the complainant-PW4 have deposed that, the accused has committed the crime on the victim girl. Except these 5 witnesses, other witnesses said to be the neighbourers of the complainant's house who are examined as PW9 to PW11, they did not support the case of the prosecution. Learned Public Prosecutor argued that, when the evidence of the victim girl-PW3 is available and the evidence of the mother of the victim girl-PW2 is available and the medical documents are available, then presumption arise as provided under Sec.29 of POCSO Act, 2012. I have gone through the provisions of Sec.29 of POCSO Act, 2012, which reads as under:
"Sec.29 of the POCSO Act, 2012:- Presumption as to certain offences:- Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections. 3, 5, 7 and 9 of this Act, the Special Court shall presume that, such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved".17 Spl.C.C.No.35/2015
38. The learned Standing counsel argued that, though there is presumption available in favour of the prosecution, as there are contradictions in the evidence of the prosecution witnesses, the accused is able to show that, the evidence of the prosecution witnesses cannot be acceptable for the reason that, there are many contradictions in their evidence. The learned Standing counsel has brought to the notice of this court the following contradictions in the evidence of the prosecution witnesses:
.according to the victim girl-PW3, after the incident [in the night] on the next day, she has gone to school, but, in the Complaint-Ex.P2, it is silent whether on the next day of the incident, the victim girl had gone to school, however, on reading the averments made in the Complaint that, at about 1.30 P.M., her [victim girl] mother came to her house, at that time, the victim girl, her sister and another girl were in the house;
. as per the complaint averments, PW2 stated that she had gone to Kyatasandra at the time of alleged incident, but, in her chief examination she had deposed that, she had gone to Doddaballapura, but, in her cross-examination she has stated that, she had gone to Bhakthrahalli and not to Kyatasandra;
.as per the evidence of PW14-the then ASI of Yeshwanthapura Police Station when he had been to the complainant's house, as per the directions of PSI, at that time, the accused was doing galata and he apprehended the accused and produced before the SHO of complainant Police Station, but, in the evidence of PW2-complainant, she deposes that, before arrival of the police, her husband/accused went inside the house and bolted the door;
18 Spl.C.C.No.35/2015.as per the evidence of PW20-Police Sub-Inspector, he deposed that, he gave his Mobile Number to the public during the Crime Prevention Programme. His Mobile Number is 9632688699, but, during the course of cross-examination of PW3-victim girl, she deposed that, the mobile number was given by the police in the school;
.the Investigating Officer has not complied with the mandatory provisions of Sec.24 of POCSO Act, 2012 while recording the statement of the victim girl, Sec.26 of POCSO Act, 2012 while recording the statement of the victim girl before the Learned Magistrate and Sec.27 of the POCSO Act, 2012 while sending the victim girl for medical examination.;
39. Further, learned Standing counsel submitted that, in this case, a false case has been lodged by the complainant against her own husband [accused herein] with an intention to knock-off the property standing in the name of her husband[accused herein]. She brought to the notice of this court that, while the accused was in judicial custody, the complainant had been to jail and asked the accused to put his signatures on papers on the pretext of she will get release the accused on bail, as such, the accused has signed the papers and later those papers were converted as General Power of Attorney and she [complainant] has sold the present house property standing in the name of the accused and now she left the present house property and she has settled somewhere else. Therefore, learned Standing counsel argued that, the accused has been falsely implicated in this case and he may be acquitted.
19 Spl.C.C.No.35/201540. In the light of the aforesaid contradictions and arguments advanced by learned Standing counsel, I have carefully gone through the evidence of the prosecution witnesses. In so far as Complaint-Ex.P2 is concerned, PW2 being the complainant as well as the mother of the victim girl in the Complaint-Ex.P2 stated that, her husband [accused herein], was doing Mason work and he was in the habit of consuming alcohol and he is a womanizer. But, during the course of cross-examination of PW2, learned Standing counsel put a suggestion to PW2 that, if her husband was not of good character, she would not have left her daughters with her husband in the house on the date of incident, for that, PW2 answered that, the accused forcibly sent her to her mother's house, but, on going through the chief examination of PW2, she deposed that, in the year 2014, July month, her [PW2] mother was not keeping well and she received phone call about the ill-health of her mother, so, she and her son had been to Bhakthrahalli to see her mother. Therefore, it discloses that, the accused did not force PW2 to go to her mother's house on the alleged date of incident and during the course of cross-examination of PW2, she deliberately deposed that, her husband forcibly made her to go to her mother's house.
41. Further, during the course of cross-examination of PW2, it was suggested to PW2 that, if the character of the accused was not good and he is a womanizer, then, the complainant could have lodged a complaint in that regard, for that, PW2 has stated that, she has not lodged any complaint. Further PW2 deposed that, the 20 Spl.C.C.No.35/2015 accused was not looking after her family by providing food and clothes. However, during the course of cross-examination of PW3-victim girl, at Page No.7, she [PW3] deposed that, her father was looking after them in a good manner. "£À£Àß vÀAzÉ £ÀªÀÄä£ÀÄß ZÉ£ÁßV £ÉÆÃrPÉƼÀÄîwÛzÀÝgÀÄ". Thereby, PW3 never stated that, her father/accused is having such bad character i.e. the accused is a womanizer, as deposed by PW2-complainant. Further, on perusal of the evidence of PW2, she deposed that, the accused and she [PW2] were married for the past 18 years, till such time, no complaint made by PW2/complainant against the accused with regard to his bad vices. If at all the accused had such a character, PW2 could have lodged a complaint earlier. Therefore, the evidence of PW2/complainant with regard to the character of the accused, raises doubt about the truthfulness of the statement of PW2.
42. Further, in the light of the defence taken by the accused that, the complainant had illicit relationship with another man [as stated by the accused in the Statement under Sec.313 Cr.P.C] and further the complainant has sold the property belonging to the accused when the accused was in judicial custody, therefore, this court is of the opinion that, the evidence of PW2 is not trustworthy to believe to connect the accused that, he has committed the offence.
43. Further, looking into the evidence of PW3-victim girl, in her chief examination, she deposed that, when her mother [PW2] had been to her [PW2]mother's house, on that night, the accused 21 Spl.C.C.No.35/2015 being her father, committed rape on her. PW3 further deposed that, the accused bite on her private part and on the next day morning, she came to know the said fact when she saw that, her clothes were blood stained and she removed the said clothes and worn new clothes and went to school.
44. It is pertinent to note that, the victim girl was aged 15 years at the time of the alleged incident, all of a sudden if really the accused raped her, then she would have been in a shock, because, she was not aware of such act, as she being a minor. The victim girl being a child of 15 years, it is highly impossible for her to go to school on the next day of the alleged incident without awaiting her mother's arrival.
45. Further, it is pertinent to note that, according to the evidence of PW3-victim girl, the accused bit her private part. If that is so, PW3 would have sustained injuries and when the mother of PW3 arrived, she could have taken PW3 to the hospital, but, on that day, her mother did not take her [PW3] to hospital. Further, it is also pertinent to note that, the complainant has lodged the Complaint-Ex.P2, three months after the alleged incident. The complainant's contention is that, as the accused is her own husband, if the complaint was lodged, then, there will be shame and her family name will be spoiled and therefore, she did not lodge the complaint immediately after the alleged incident. However, after 3 months, when her husband came to her house, she lodged the complaint, because, when she enquired with her husband, he 22 Spl.C.C.No.35/2015 came to assault her by squeezing her neck. Therefore, the complainant lodged the complaint on that day. According to the complainant, the incident had taken place 3 months prior to lodging the Complaint-Ex.P2. The Complaint was lodged on 8.9.2014. It is highly unbelievable that, the victim girl aged 15 years at the time of the alleged incident, if raped by her own father, under that circumstances, the complainant being the mother of the victim girl would not keep quite without taking any action against her own husband, as the alleged crime is very heinous in nature. Any prudent woman and being the mother of a girl, would not keep quite without taking the action against her own husband if her husband commits rape on his own daughter. The contention of the complainant that, if she lodged the complaint, her family name will be spoiled, cannot be believed, because when the accused came to the house after 3 months and when he came to assault his wife [complainant] for that, incident the complainant has lodged the complaint. Therefore, if really the alleged incident had happened, the complainant would have lodged the complaint soon after the alleged incident.
46. Further, there are many variations in the statement of the victim girl-PW3. During the course of cross-examination of PW3, at Page No.10, Para No.10, she has stated that, the Doctor took the clothes of PW3 worn by her on the date of the incident, but, in the chief examination at Page No.4, PW3 identified the Chudidhar pant worn by her [PW3] on that day [at the time of medical examination by the Doctor] and further PW18-Doctor also deposed 23 Spl.C.C.No.35/2015 that, at the time of medical examination of victim girl-PW3, she [PW18] collected the chudidhar pant-MO-1, which was worn by the victim girl on the date of her medical examination. Therefore, the seizure of Chudidhar pant-MO-1, whether it was worn by the victim girl on the date of the alleged incident or on the date of the medical examination of the victim girl, itself, is in doubt.
47. Further, as per the evidence of PW5-sister of the victim girl, in her cross-examination she stated that, her father [accused herein] was looking after them in a good manner, whenever her mother went to her native place. Further, PW5 also deposed that, her father is very close to her [as deposed in Page No.4, Para No.2 of the cross-examination of PW5] and he is in good terms with her [as deposed in Page No.5, Para No.4 of the cross-examination of PW5].
48. Further, PW6-daughter of the sister of the accused also deposed during the course of cross-examination [at Page No.4, Para No.1] that, her uncle [accused herein] was looking after them in a good manner.
49. In this case, on perusal of the evidence of PW2, PW3, PW5 and PW6, there are many variations in their evidence and further, from their evidence it can be gathered that, the accused was looking after his children in a good manner and though there were some small pin-pricks, between the mother of the victim girl and the accused. Till the filing of this complaint, there were no 24 Spl.C.C.No.35/2015 complaints against this accused about his character and further, it is not denied that when the accused was in judicial custody, his wife [complainant] sold the house property belonging to him on the pretext of releasing him [accused] on bail and further there is inordinate delay in lodging the complaint i.e., for about 3 months. Though the medical evidence discloses that, the hymen of the victim girl was ruptured and she was used to an act like that of sexual intercourse, as the victim girl was aged 15 years at the time of the alleged incident and if really her father/accused had committed rape on her, she would have been put in a shock and she would not have gone to the school on the next day morning after the alleged incident. Further, the cloth i.e., Chudidhar Pant-MO-1said to be worn by the victim girl and further subsequent event i.e., during the pendency of this case PW2 sold the house property of belonging to the accused and further the accused in his Statement under Sec.313 of Cr.P.C stated that, his wife [complainant] has got illicit relationship with another man and it came to his knowledge, taking into consideration all these aspects, this court is of the opinion that, there may be chances of false implication of this accused in the alleged crime. Therefore, the prosecution has failed to prove the guilt of the accused beyond any reasonable doubt. Hence, the accused is entitled to an acquittal. Accordingly, I answer POINT NOS. 1 TO 4 IN THE NEGATIVE.
50. POINT NO.5: In view of my aforesaid discussions, I proceed to pass the following 25 Spl.C.C.No.35/2015 ORDER In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is acquitted of the offences punishable under Secs.376 and 506 of IPC and under Sec. 5(l) r/w Sec.6 of POCSO Act, 2012 and under Sec.8 of POCSO Act, 2012.
MOs-1 and 2 being worthless are ordered to be destroyed after the appeal period is over.
In this case, the bail application was allowed by this court filed by the accused vide Order dated: 31.08.2015 with the condition that, the accused has to furnish a surety. However, the accused did not furnish the surety and therefore, he remains in the judicial custody.
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, the accused ordered to be set at liberty, as he has been acquitted of the offences alleged against him. 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.
26 Spl.C.C.No.35/2015In 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 30.9.2017.
In so far as victim compensation is concerned, on perusal of the evidence on record, this court opined that this accused is falsely implicated in this case by filing false complaint against him, therefore, the Victim girl is not entitled to compensation.
[Dictated to the Stenographer partly and directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 31st day of March, 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Anthony CW3 16.11.2015
Pw.2 Anju CW1 20.2.2016
Pw.3 Victim girl CW2 18.4.2016
Pw.4 Shailaja CW6 7.11.2016
Pw.5 Usha CW7 7.11.2016
Pw.6 Vedavathi CW8 7.11.2016
Pw.7 M.Ramesh CW14 7.12.2016
Pw.8 Dr.Praveen.S CW16 11.1.2017
27 Spl.C.C.No.35/2015
PW.9 Shamshad CW9 3.2.2017
PW.10 Gracy CW10 3.2.2017
PW11 Mubana CW12 3.2.2017
PW.12 Yellamma CW22 13.2.2017
PW.13 C.R.Mahadevaiah CW23 13.2.2017
PW.14 P.P.Naryanareddy CW17 2.3.2017
PW.15 Divakara.M CW19 2.3.2017
PW16 Nagarathnamma.K.S CW21 2.3.2017
PW17 Arogyamma CW13 2.3.2017
PW18 Dr.Gayathridevi.S CW15 2.3.2017
PW19 Jayarama CW24 14.3.2017
PW20 Venkatesh.T CW26 14.3.2017
PW21 Anjankumar.V CW27 14.3.2017
Documents marked for the prosecution:
Ex.P1 Spot Mahazar conducted in House No.166, 8th Cross,
1st Main, B.K.Nagar, Yeshwanthapura, Bangalore Ex.P1(a) Signature of PW1 Ex.P1(b) Signature of PW2 Ex.P2 Complaint dated: 8.9.2014 given by PW2/complainant Ex.P2(a) Signature of PW2 Ex.P2(b) Signature of PW21 Ex.P3 Medical certificate of the victim girl Ex.P3(a) Signature of PW2 28 Spl.C.C.No.35/2015 Ex.P3(b) Signature of PW3 Ex.P3(c) Signature of PW18 Ex.P4 Counselling Report dated: 8.9.2014 of the victim girl conducted by Smt.Arogymma, SJPU Co-ordinator Ex.P4(a) Signature of PW3 Ex.P4(b) Signature of PW17 Exs.P5 to P7 Three Photographs Ex.P8 Statement given under Sec.164 of Cr.P.C by the victim girl before the 42nd ACMM, Magistrate.
Ex.P8(a) Signature of PW3 Ex.P9 Requisition letter given by the Police Inspector of
Yeshwanthapura Police Station, Bangalore to the Head Master, of the school wherein the victim girl is studying to issue the certificate of date of birth of the victim girl Ex.P10 Certificate issued by the Head Master, of the school wherein the victim girl is studying attesting the date of birth of the victim girl as 12.4.2000 Ex.P10(a) Signature of PW7 Ex.P11 Medical certificate of the accused Ex.P11(a) Signature of PW8 Ex.P12 Statement given by PW9 under Sec.161 of Cr.P.C before the complainant police Ex.P13 Statement given by PW10 under Sec.161 of Cr.P.C before the complainant police Ex.P14 Statement given by PW11 under Sec.161 of Cr.P.C before the complainant police 29 Spl.C.C.No.35/2015 Ex.P15 Report given by PW19 before the complainant police regarding collecting of the articles belonging to the victim girl from M.S.Ramaiah Hospital, Bangalore Ex.P16 FIR Ex.P16(a) Signature of PW21 Materials Objects marked for the prosecution:
MO-1 Chudidhar pant of the victim girl MO-2 Pubic hair of the victim girl Witness examined, documents and MOs marked for the accused: NIL
LIV Addl., City Civil & Sessions Judge, Bangalore.
30 Spl.C.C.No.35/201531.3.2017 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.376 and 506 of IPC and under Sec. 5(l) r/w Sec.6 of POCSO Act, 2012 and under Sec.8 of POCSO Act, 2012.
MOs-1 and 2 being worthless are ordered to be destroyed after the appeal period is over.
In this case, the bail application was allowed by this court filed by the accused vide Order dated: 31.08.2015 with the condition that, the accused has to furnish a surety. However, the accused did not furnish the surety and therefore, he remains in the judicial custody.
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.31 Spl.C.C.No.35/2015
In the present case, today, the accused ordered to be set at liberty, as he has been acquitted of the offences alleged against him. 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 30.9.2017.
In so far as victim compensation is concerned, on perusal of the evidence on record, this court opined that this accused is falsely implicated in this case by filing false complaint against him, therefore, the Victim girl is not entitled to compensation.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY 32 Spl.C.C.No.35/2015