Bangalore District Court
State By Bommanahalli Police vs Srinivas on 27 August, 2019
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the, 21 st day of August, 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.232/2016
COMPLAINANT: State by Bommanahalli Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Srinivas,
son of Vaddagallaiah,
Aged 26 years,
Residing at No.2/9, 3rd Cross,
2nd Main, Oni Road, Hongasandra,
Bangalore-68.
Permanent Address:
Kulkani Grama, Kirugavalu Hobli,
Malavalli Taluk, Mandya District.
[By Advocate Sri. A.R.Girish Kumar]
1. Date of commission of 23.3.2016
offence
2. Date of report of 23.3.2016
occurrence of the offence
2 Spl CC No. 232/2016
3. Date of arrest of accused 26.3. 2016
Since the date of arrest of the accused, the
accused is in the judicial custody.
4. Date of commencement of 17.1.2018
evidence
5. Date of closing of evidence 1.3.2019
6. Name of the complainant Smt.Nagarathna, complainant as well as the
mother of the victim girl.
7. Offences complained of Secs. 342, 366, 376 of IPC and Secs. 4
and 6 of POCSO Act, 2012.
8. Opinion of the Judge The accused is convicted.
JUDGEMENT
The Police Inspector, Bommanahalli police station has filed charge-sheet against the accused for the offences punishable under Secs. 342, 366, 376 of IPC and Secs. 4 and 6 of POCSO Act, 2012.
2. It is the case of the prosecution that, the accused is the cab driver in Amit Cabs situated in the same building wherein CW1 is residing i.e, in House No.274, 1st Main Road, 8th Cross, Hongasandra, Garvebavipalya Road, Bangalore-68 and CW1 is doing the business of 'Boonda Bajji' in front of her house ad the accused came in acquaintance with CW1 and her family members and he used to talk to CW2 daughter of CW1 who was aged 12 years and that on 23.3.2016 at about 2.15 P.M., when CW2 was near her house, on the pretext of having love affairs and promising of marriage, the accused kidnapped CW2/victim girl from her 3 Spl CC No. 232/2016 house with an intention that she will be compelled to marry the acsued and that she will be forced to have illicit intercourse with him and took her to the house of CW4-Rajesh situated at Hongasandra, 1st Main Road, 1st Cross, House No.3/21 and wrongfully confined her in the said house and despite the protest of CW2/victim girl, the accused committed aggravated penetrate sexual assault on CW2/Victim girl. Initially on the basis of the complaint lodged by the complainant who is none other than the mother of the victim girl, the complainant police have registered a case against the accused in Cr.No.31/2016 and continued with the investigation by arresting the accused and after completion of investigation, the Police Inspector/Investigation Officer has filed charge-sheet against the accused for the offences punishable under Secs. 342, 366, 376 of IPC and Secs. 4 and 6 of POCSO Act, 2012.
3. The accused was arrested on 26.3. 2016 and thereafter he was taken to remand and remanded to the judicial custody. Since the date of arrest of the accused, he is in the judicial custody. Thereafter copies of the charge-sheet were furnished to the accused under Sec.207 of Cr.P.C. Charges were framed and read over and explained to the accused, to which, the accused pleaded not guilty and claims to be tried. Accordingly, summons issued to the charge-sheet witnesses.
4. The prosecution has examined as many as 14 witnesses as PWs-1 to 14 and got marked 23 documents as Exs.P1 to P23 documents, besides marking MOs-1 to 21. Thereafter Statement of the accused recorded under Sec.313 of Cr.P.C. The accused has 4 Spl CC No. 232/2016 denied all the incriminating evidence told to him, but he has not examined any witnesses on his behalf and no documents are marked.
5. 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, the accused is the cab driver in Amit Cabs situated in the same building wherein CW1 is residing i.e, in House No.274, 1st Main Road, 8th Cross, Hongasandra, Garvebavipalya Road, Bangalore-68 and CW1 is doing the business of 'Boonda Bajji' in front of her house ad the accused came in acquintacne with CW1 and her family members and he used to talk to CW2 daughter of CW1 who was aged 12 years and that on 23.3.2016 at about 2.15 P.M., when CW2 was near her house, on the pretext of having love affairs and promising of marriage, the accused kidnapped CW2/victim girl from her house with an intention that she will be compelled to marry the accused and that she will be forced to have illicit intercourse with him, thereby the accused has committed an offence punishable under Sec.366 of IPC?
2) Whether the prosecution further proves that, on the said date, time and place the accused not only kidnapped CW2/victim girl from her house, but, took her to the house of CW4-Rajesh situated at Hongasandra, 1st Main Road, 1st Cross, House No.3/21 and wrongfully confined her in the said house, thereby the accused has committed an offence punishable under Sec.342 of IPC?
5 Spl CC No. 232/20163) Whether the prosecution further proves that, on the said date, time and place the accused knowing that the victim girl is minor committed aggravated penetrative sexual assault on CW2/victim girl despite her protest, thereby the accused has committed an offence punishable under Sec.6 of POCSO Act, 2012 r/w Sec.376(1) of IPC?
(4) What Order?
6. My findings on the above points are as under:
Point Nos.1 to 3: IN THE AFFIRMATIVE Point No .4: As per the final order, for the following:
REASONS
7. POINT NOS.1 TO 3:- Since these Points are interlinked, taken up for common discussion in order to avoid repetition of facts.
8. During the course of arguments, the learned Public Prosecutor submitted that, the prosecution has proved the guilt of the accused beyond all reasonable doubts. It has examined totally 14 witnesses and got marked totally 23 documents apart from Material Objects MOs-1 to 21. though the victim girl has not whole heartedly supported the case of the prosecution but, her chief evidence given before the court in suport of the prosecution case is in corroboration with the evidence of other material witness. Apart from that the accused has not led any defence evidence thereby, presumption under Sec.29 of POCSO Act comes into operation. With this, the learned Public Prosecutor prays to convict the accused in the interest of justice and equity.
6 Spl CC No. 232/20169. During the course of arguments, the learned counsel for the accused submitted that, in the present case the prosecution miserably failed to prove the guilt of the accused beyond allr reasonable doubts. When the prosecution itself failed to bring home the guilt of the accused question of leading defence evidence will not arise. Thereby, the benefit under Sec.29 of POCSO Act cannot be claimed by the prosecution. Here the prosecution has examined totally 14 witnesses out of which the victim PW1 her parents Pws-2 and 3 have totally turned hositle to the prosecution. Likewise, PW5 and PW12 have also not supported the prosecution case. Apart from that the prosecution has not examined CWS-4 and 5 who are material witnesses to the case. Hence, basing on the evidence of official witnesses without having corroboration with the evidence of material witnesses the accused cannot be held to the guilt of the offence. With this, the learned counsel for the accused prays to acquit the accused, in the interest of justice and equity.
10. The prosecution in the course of trial has examined 14 witnesses as PWs-1 to 14 and got marked 23 documents as Exs.P1 to P23 besides marking MOs-1 to 21. The accused has not adduced any defence evidence nor got marked any documents.
11. Before I take up the analyzing the evidence of the prosecution witnesses I would like to evaluate the nature of the evidence given by the prosecution witnesses by bifurcating them 7 Spl CC No. 232/2016 as to what they have spoken as it would be convenient to understand the relevancy of their evidence.
12. PW1 is the victim girl. Pws-2 and 3 are her parents. PW4 is the doctor who has physically examined the victim girl on the next day of the incident. Pws-5 and 12 are the spot mahazar witnesses but have not supported the prosecution case. Pws-6 and 7 are the landlords of Pws-1 to 3 in whose house they were living and PW7 is the employer of the accused. Their evidence also is not supportive of the prosecution case, since they have turned hostile. Pw8 is another doctor deposed to had examined the accused. PW9 is a Police official deposed to had collected the clothings of the victim girl from the hospital and produced them before the Investigation Officer. PW10 is the Scientific officer of FSL. PW11 carried the material objects and submitted to FSL for examination. Pw13 deposed to had apprehended the accused and produced before the Investigation Officer and PW14 is the Investigation Officer.
13. With this, I say that the evidence of Pws-1 to 3, PW4, Pws-8, 10 and 14 is relevant to find out whether the prosecution has proved the guilt of the accused or not.
14. PW1 is the victim girl. In her evidence she has stated that during the year 2016 in which the incident stated to had happened she was 12 years old studying in 6 th standard. Her father and mother who used to go to their work were coming 8 Spl CC No. 232/2016 home late in the night at about 8 P.M. It is her further evidence that she knows the accused who was her neighbor was car driver stated that her mother had given complaint to the police for the reason that she had gone with the accused and stated that the accused had taken her to the room of his friend and she returned house at 3.30 P.M. , for which her parents questioned her as to where she had gone for which this witness stated to had told them that she was taken by the accused for which her parents assaulted her then the parents had secured the accused and entrusted him to the police. She also further stated that, then the police sent her for medical examination to a hospital where she was subjected to medical examination and stated that the doctor took her clothings. The witness has further stated that, she was taken before a Judge who has recorded her statement and also videographed the recordings. The witness has stated that the statement she had given to the Judge is marked as Ex.P1 and she has identified her signature as per Ex..P1(a) and (b). She has also identified the video cassette which is marked as MO-1 and emphasized that, she herself got recorded her statement through the Judge, but stated that, she do not remember at the time of recording what she has stated before the Judge. She has also identified her clothings as Mos-2 to 5. It is her further evidence that the accused told her that he was loving her, told her that he will marry her and instigated her and then hugged her but stated that the accused did not rape her and further continued that, the accused took her to the house of his friend and hugged her telling that he is in love with her. The witness further admitted the playing of CD, she identified her in the CD during the playing 9 Spl CC No. 232/2016 of the CD and stated that CD is containing the recording of her statement before the judge, but when the learned Public Prosecutor asked her whether she can remember what she has stated while videographing, the witness started crying, exhibiting silence and did not like to spell out.
15. When the learned Public Prosecutor treated this witness [pw1] as hostile and subjected her to cross-examination and to the suggestion that the Judge recored her statement as stated by her, as per Ex.P1, the witness has answered in the AFFIRMATIVE. To the further suggestion of the learned Public Prosecutor that though the accused committed sexual assault over her but she is feeling bad about the incident therefore she is not able to tell before the court as to what happened before the court for which also the witness has answered in the AFFIRMATIVE. In her further evidence to the suggestion of the learned Public Prosecutor that she has in her statement as per Ex.P1, has stated that the accused had confined her in a room and that the friend of the accused locked the door from outside, she shouted in the first instance but they did not open the door but for the second shouting they opened the door for which the witness stated to had exhibited silence and started weeping and further deposed that she also given statement to the police and told the doctor the names of her parents.
16. Pws-2 and 3 are the mother and father of the victim girl. PW2 has identified the accused in the open court and stated to had given police complaint regarding the victim girl not turning up 10 Spl CC No. 232/2016 on that day where the victim girl had gone for shopping for quite a long time and on her return when she questioned her, for which her daughter disclosed her in this accused having had taken her with him but stated that PW1 did not disclose furtehr as to what had happened to her. The learned Public Prosecutor has treated this witness as hostile and subjected her to cross-examination. In the cross-examination, PW2 has admitted that on 23.3.2016 PW1/ victim girl had gone out of the house at 2.00 P.M., did not turn up till 3.30 P.M., and she found the PW1 was looking tired but the witness has further stated that the accused having had taken PW1/ victim girl with him but in her further answer to the question of the learned Public Prosecutor, the witness has answered that PW1/ victim girl having had told her that this accused having had taken PW1/ victim girl with him. The witness has also admitted regarding subjecting PW1/ victim girl to medical test.
17. PW3 the father of the victim girl stated that the accused is a driver was the resident of near their house and in corroboration with the evidence of PW2 stated that, on the date of the offence, when PW1 came late to the house, they questioned her, PW1 stated to had told them in this accused having had taken PW1 with him. Even this witness has also been subjected to cross-examination by the learned Public Prosecutor but the witness except telling that PW1 had told them in that accused having had taken her has not spelled out anything more.
11 Spl CC No. 232/201618. Then I take up the evidence of PW4 the doctor who deposed to had examined PW1 on 24.3.2016 at 5.45 P.M., has stated on physical examination she found nail scratch mark over the lips of the victim girl and nail scratch mark measuring 5 cms, below the right TM joint over right stermoclido mastoid, small abrasion over left side of neck, severe tenderness present over both TM joint and neck region, Rt. Breast upper outer aspect nail scratch mark present, nail mark present over medial aspect of left thigh and it is stated by this witness that according to the statement given by the victim girl and also as per the medical examination, the injury No.1 to 4 are caused on the victim girl by her father or the accused, injury No.5 and 6 are caused by the accused. It is her further evidence that, external genetelia appeared normal and no external injuries. Hymen not intact and deposed to the collection of MOs-1 to13 and on local genital examination, she found that recent sexual assault is absent and deposed to had issued Report as per Ex.P5.
19. PW8 a Doctor deposed to had examined the accused on 26.3.2016 and deposed to as many as 5 injuries noticed which are abrasions which are said to be covered with reddish brown scalp and to the suggestion of the learned Public Prosecutor these injuries could be caused while a person causing sexual assault while the victim was struggling to get out of the clutches of the person, witness affirms and stated that there is nothing to suggest that the accused was incapable of performing sexual intercourse. But the evidence of this witness is in no way helpful 12 Spl CC No. 232/2016 to the prosecution to fix the accused for the presence of the seminal stains on MOs-10 and 12 and blood stains as Item Nos. 8 and 12. As the Investigating Agency has not endowed to ask the Scientific Officer to determine that by supplying the samples of sperm and blood.
20. PW14 the Investigation Officer deposed to the investigation as done in this case and filing of the charge-sheet against the accused which will be discussed in detail hereinafter. Before I go into the details of the Investigation done I shall come back to the material evidence of the victim girl and other prosecution witnesses .
21. PW1 when in the cross-examination by the the learned counsel for the accused after about a month after her chief evidence the victim girl has totally given a go-bye to her evidence given in the chief examination and stated to had not seen the accused earlier and she had not gone with him also. With this statement of the victim girl, the learned Public Prosecutor further examined the victim girl/PW1 but even then also she denied the suggestions of the learned Public Prosecutor in she having had implicated the accused for the crime. This court has recorded observation made during recording the evidence of PW1 during which the victim girl having had broke down with crying whenever she was asked to spell out as to what had happened to her when she was in the company of the accused which is in my view is relevant to understand the plight of the victim girl and the agony she underwent. Even Pws-2 and 3 have also in their cross-
13 Spl CC No. 232/2016examination by the learned counsel for the accused have not whole heartedly supported the prosecution case but they have in one voice admitted that the victim girl had told them in this accused having had taken her with him on the date of the offence.
22. Apart from the evidence of Pws-1 to 3, referred to above, I have the statement of the victim girl given before the Magistrate under Sec.164 of Cr.P.C which is marked as Ex.P1 and the Medical Certificate issued by PW4 which contains the history of the incident said to have been given by the victim girl prior to her physical examination which is marked as Ex.P5. Ex.P1 contain the statement said to have been given by the victim girl which discloses that, the accused who was known to the victim girl had told her that he is in love with her, taken her to the house of his friend, kissed her and raped her twice. PW1 in her evidence in chief categorically admitted to have given statement touching the incident to the Magistrate as per Ex.P1 and further stated that the statement was recorded as unfolded by her. Further that PW1 has also stated in her chief evidence that recoding of her statement was videographed and identified the CD as MO-1. In her further evidence the victim girl when CD was played in the court hall, she has identified herself in the video and stated that recording was done when she was giving statement to the Judge. Besides this, PW1 has also stated to have given the statement to the doctor when she was examined but, at the subsequent stage in her evidence in chief she has stated as if she had given the name of her mother, father to the doctor. Ex.P5 [Medical certificate of the victim girl] contains the history shown to have 14 Spl CC No. 232/2016 been given by the victim girl and that the doctor having had recorded the same. Even this history unfolds the statement of the victim girl in she was having had been subjected to aggravated penetrative sexual assault by the accused. The contents of Exs.P1 and P5 go in corroboration with the evidence given by PW1 in her examination in chief which implicates the accused to the crime. When these facts undisputedly come out of the mouth of the victim girl when her earlier part of evidence recorded by this court then the statement given by her before the Magistrate and the history given by her to the Doctor all together go in-consonance with each other and reflect truthfulness of that statement referred to above for which, now, PW1 to PW3 are trying to give a different colour which exposes them of their connivance with the accused. But, it appears later on some developments has taken place by the time PW1 was subjected to cross-examination by the learned counsel for the accused . In the cross-examination by the learned counsel for the accused , in the beginning lines, PW1 the victim girl stated as if she had not seen the accused earlier, did not go with him and that was the first time that she was seeing the accused in the court hall on that day. Nextly, to the suggestion of the the learned counsel for the accused that when she was examined in chief earlier on 2 occasions, she was silent and she was crying for which the witness has answered in the Affirmative. Further to the suggestion of the learned counsel for the accused the accused did not misbehave with her for which also she has answered in the Affirmative. Except this, no other evidence is elicited or 15 Spl CC No. 232/2016 suggestions are made, so also in the cross-examination of Pws-2 and 3.
23. With this minimal of the cross-examination of Pws-1 to 3 made by the the learned counsel for the accused , the defence has not made any attempt to destroy the relevancy or the evidentiary value of the evidence of Pws-1 to 3. With this I say the court has to undertake the burden of evaluating the evidence and the documents in its totality and peel the beans to unearth the truth from the falsehood and to nullify the attempt of Pws-1 to 3 and the defence side in mis-directing the court from its path of doing justice. Here, I say the court as well said, is not to act merely as an umpire between 2 players, but to involve and evolve and use all judicial skills to decide the case appreciating the evidence of the prosecution. With this I say that the evidence given by PW1 in her chief examination, the documents at Ex.P1, Ex.P5 and MO-1 cannot be thrown out from consideration and the material evidence on record since has not been questioned and contradicted by the learned counsel for the accused , because when the statement given by the victim girl on oath before this court cannot be undone or rejected at a later stage without any reasons.
24. Neither PW1 nor the learned counsel for the accused come up before this court to say how, why PW1 has given the evidence against the accused on the earlier part and what made her to give a total go-by to that evidence. It is not the say of PW1 or the defence of the accused that, PW1 was either mislead , 16 Spl CC No. 232/2016 tutored or coerced to give such evidence implicating the accused and that PW1 therefore at a later stage has come up with the truth. Similarly, not even a single suggestion is made to PW1 regarding recording the statement as per Ex.P1 and the history given by PW1 to the doctor and issue of Medical Certificate. Therefore in the absence of any cross-examination or suggestions, the statement of the victim girl given under Sec.164 of Cr.P.C at Ex.P1, the history as found in Ex.P5 cannot be neglected. Thus, the evidence of PW1 given in the course of cross-examination made by the the learned counsel for the accused in my view cannot de-valuate the evidence of PW1 and limited evidence of Pws-2 and 3 and I hold that Pws-1 to 3 have colluded with the accused to mis-direct the court in the course of trial. Added to this the evidence of PW4 the Doctor who examined the victim girl reveals that, the said witness had noticed certain injuries over the body of the victim girl i.e., nail scratch mark over the lips of the victim girl and nail scratch mark measuring 5 cms, below the right TM joint over right stermoclido mastoid, small abrasion over left side of neck, severe tenderness present over both TM joint and neck region, Rt. Breast upper outer aspect nail scratch mark present, nail mark present over medial aspect of left thigh. Besides this, PW4 has also deposed as noted in Ex.P5 the hymen of PW1/ victim girl was not intact and the victim girl was not used to recent sexual intercourse. This apart PW8 who has examined the accused soon after the incident and also deposed to had noticed the following injuries on the body of the accused :
(1) Linear abrasion over right side of neck measuring 2 cm in length.17 Spl CC No. 232/2016
(2) Linear abrasion behind left ear measuring 1.5cm in length.
(3) 3 scratch abrasion over left ear measuring 1 cm, 0.3 cm and 0.5 cm in length.
(4) Scratch abrasion over left jaw measuring 1.7 cm.
(5) Scratch abrasion on the front of right ear measuring 0.5 X 0.2 cm.
These injuries found over the body of PW1 and the accused soon after the incident prove there was struggle from PW1/ victim girl and that the accused despite of her resistance committed aggravated penetrative sexual assault on her. Even these witnesses have not been subjected to the critical cross- examination to contradict those injuries. Regarding the hymen tearness, the the learned counsel for the accused has suggested to PW4 that rupture of the hymen may be for different reasons of course PW4 has agreed to the said suggestion, but nowhere it is elicited that this victim girl/PW1 was just 12 years old then, was either a sports person or was indulged in any such hard work or activities as the result of the hymen might have been missing. According to the doctor's opinion, that the victim girl was not used to sexual intercourse also suggests that PW1 had indulged either regularly or occasionly or frequently had indulged in sexual acts, therefore, considering the date of the offence on 23.3.2016, the date of examination of PW1, all suggests that PW1 suffered rupture of hymen because of the aggravated penetrative sexual assault committed on her by the accused. The doctor though 18 Spl CC No. 232/2016 stated to had noticed slight bleeding, semen and blood stains in the clothings of PW1, but, PW1 having herself stated that she had her periods as on that day cannot be said that bleeding etc, were all of due to aggravated penetrative sexual assault but that apart unquestioned, unrebutted evidence of PW1, the statement at Ex.P1, and the history given by the victim girl to the Doctor, further with the evidence of Pws-2 and 3 that they were told by the victim girl that she had gone with the accused unhestitatingly points finger to the accused and further proves that the accused had committed aggravated penetrative sexual assault on the victim girl and I have no hesitation or reasons to disbelieve the evidence given by PW1, PW4, and the documents that the prosecution has produced before this court and thus the denial of the incident by PW1 in the cross-examination cannot take away the evidentiary value of her earlier evidence given before this court.
25. PW14/ Investigating Officer has deposed before the court that, on 24.3.2016 he received the case papers from CW16 and continued with the further investigation. On the same day, he sent the victim girl to the medical examination with woman police to St.John's Hospital and on the same day, he visited the spot and conducted spot mahazar in the presence of Cws-6 and
7. the said Panchanama is marked as Ex.P3 and his signature is marked as Ex.P3(d). He also sent the victim girl before the Magistrate for recording of her statement under Sec.164 of Cr.P.C. On 26.3.2016, he deputed CW15 for tracing out the accused and on the same day, CW15 produced the accused before him and he took the accused to his custody and recorded his voluntary 19 Spl CC No. 232/2016 statement and sent the accused for medical examination. CW15 had given Report before him while producing the accused before him. The said Report is marked as Ex.P15 and his signature is marked as Ex.P15(a). On 4.4.2016, he has obtained the medical reports of the accused and the victim girl. On 6.4.2016, he sent 20 sealed articles of this case to FSL and continued with the further investigation. After completion of investigation, he has filed charge-sheet against the accused. He has further deposed that, while he was serving in Bommanahalli police station, CW15 was working as PWI. He received the case file from CW15 and verified the records and found that, CW15 had received the complaint from CW1 and he registered a case in Cr.No.31/2016 and prepared FIR and sent the FIR to the jurisdictional court and copy of the same to his higher officer. The complaint is marked as Ex.P2 and the FIR is marked as Ex.P23. This wietnss has been cross-examined by the the learned counsel for the accused. In his cross-examination he has denied that, he has received a false complaint. He has also denied that, he has created false mahazar for the purpose of this case. He has also denied that, he has created a false case against the accused and without any materials, he has submitted false charge-sheet against the accused.
26. On careful consideration of entire developments of this case, unfolds the collusive attempt of the accused and the material prosecution witnesses to somehow get an acquittal to the accused for their own reasons and mutual understanding. But the court while considering the entire case should take each 20 Spl CC No. 232/2016 stage, development and the intention of the parties in order to reach the right conclusion. In that process, I am conscious that the court has to rely upon the evidence of both type on record and to reach the conclusion while doing so, I have considered the blemishless evidence of PW1 given on earlier part, a small evidence of Pws-2 and 3 supporting the victim was being in the company of the accused, the unblemished statement givne by the victim under Sec.164 of Cr.P.C before the Magistrtae and the history given before the Doctor which have remained unimpeached, nails the accused to the crime. With this, I refer to Sec.29 of POCSO Act, which throw burden on the accused to prove that his involvement of the charge but he has failed to discharge the burden and conclude that under the POCSO Act, and the facts and circumstances of the case without even the victim's whole hearted supporting evidence with the other materials avilable on record court can in my view convict the accused on the above referred consisting and linking factual evidence . In this regard, I rely upon the observations and findings of Hon'ble Supreme Court of India in a Judgment delivered in Criminal Appeal No.913/2016 dated: 28.9.2018 held between Hemudan Nanbha Gadhvi Vs. State of Gujarat. Under these circumstances, the statement under Sec.164 of Cr.P.C given by the victim girl before the Judge plays a major role in pointing to the guilt of the accused.
27. Here Sec.29 of POCSO Act, 2012 comes in to operation wherein when the accused is prosecuted for the offence as defined under Sec.5 of POCSO Act, 2012 and when his involvement in the 21 Spl CC No. 232/2016 crime, established burden is on him to disprove the same and therefore, presumption shall also be drawn to have committed the offence as defined under Sec.5(l) of POCSO Act, 2012 and he has not lead any evidence to disprove it. Considering all these facts and circumstances of the case and as per the discussions made by me herein above, and also as per the findings given by the Hon'ble Apex Court referred to supra, I am of the firm opinion that, the prosecution has proved the guilt of the accused beyond all reasonable doubts. Thereby, I hold that the accused is liable to be convicted. Accordingly, I answer POINTS-1 TO 3 in the AFFIRMATIVE.
28. POINT NO.4:- As per my findings on Points-1 to 3 above I proceed to pass the following:
ORDER Acting under Sec.235(2) of Cr.P.C, I hereby convict the accused for the offences punishable under Secs. 366 and 342 of IPC and Sec.6 of POCSO Act, 2012 r/w Sec.376(1) of IPC.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 21 st day of August, 2019] [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.22 Spl CC No. 232/2016
27.8.2019 ORDER ON SENTENCE The accused and his counsel are present. Heard on sentence to be imposed on the accused. The accused submitted that, he is aged about 32 years, having old aged parents who are suffering with age old ailments and nobody is there to take care of them. Further submitted that he was working as a driver earlier to this case and he is in the judicial custody since the date of his arrest. If he is awarded longer sentence, his family interest will be affected, thereby, the accused prayed for leniency in imposing the sentence.
Since this court has held the accused is guilty of the offences punishable under Secs. 366 and 342 of IPC and Sec.6 of POCSO Act, 2012 r/w Sec.376(1) of IPC, minimum sentence is to be provided for the offences punishable under Sec.376 of IPC and Sec.6 of POCSO Act, 2012.
The Amended Section 376(3) of IPC which came to effect from 21.4.2018 through Criminal Law (Amendment) Act, 2018 22 of 2018 provides for imposing minimum sentence of 20 years and also with fine in case where the offence is committed against a woman under the age of 16 years. Whereas under the provision of Sec.6 of POCSO Act, 2012, provides punishment for aggravated penetrative sexual assault with a minimum sentence of 10 years which may extend to life along with fine. The offence under Sec.376(3) of IPC and Sec.6 of POCSO Act, 2012 being the 23 Spl CC No. 232/2016 same, the accused cannot be punished for the same offence twice under 2 different Acts.
In the present case, the victim girl was below the age of 12 years as on the date of the commission of offence. Therefore, as per the provisions under Sec.376(3) of IPC, r/w Sec.6 of POCSO Act, 2012, with a minimum sentence of 20 years Rigorous Imprisonment for the said offences has to be imposed. Apart from that the accused is still at his in the beginning of 30's, this court in order to afford him some margin of reforming himself and then to build up his future after undergoing sentence deems fit to impose only minimum sentence of imprisonment. That being the position this court is of the view has no choice to show any leniency in awarding sentence, but to award the minimum statutory punishment. As such, I pass the following:
SENTENCE
(a) I hereby sentence the accused to undergo Simple Imprisonment for a period of 3 Years and he shall also pay a fine of Rs.5,000/- for the offence punishable under Sec.366 of IPC. In default of payment of the fine amount the accused shall further undergo Simple Imprisonment for a period of 3 Months.
(b) Further, I hereby sentence the accused to undergo Simple Imprisonment for a period of 6 months for the offence punishable under Sec.342 of IPC.24 Spl CC No. 232/2016
(c) Further, I hereby sentence the accused to undergo Rigorous Imprisonment for a period of 20 Years and he shall also pay a fine of Rs.10,000/- for the offences punishable under Sec.376(3) of IPC r/w Sec.6 of POCSO Act, 2012. In default of payment of the fine amount, the accused shall further undergo Simple Imprisonment for a period of One year.
All (a) to (c) sentences shall run concurrently.
Acting under Sec.428 of Cr.P.C, the period of detention undergone by the accused is set-off against the sentence of imprisonment imposed.
MO-1 being the CD(small video casettee player) is ordered to be kept with the other material evidence.
MOs-2 to 21 being worthless are ordered to be destroyed after the appeal period is over.
Copy of this Judgement shall be given to the accused free of cost forthwith.
[ Sentence dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 27 th day of August, 2019] [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
25 Spl CC No. 232/2016ANNEXURES:
Witnesses examined for the prosecution:
PW.1 Victim girl CW2 17.1.2018
PW.2 Nagarathna CW1 13.8.2018
PW.3 Rajashekar CW3 13.8.2018
PW.4 Dr.Kavitha Gonalswas CW10 18.9.2018
PW.5 Ravi CW8 18.9.2018
PW.6 Shantha CW6 1.10.2018
PW.7 Srinivas.H.B CW9 1.10.2018
PW.8 Dr.Betty Allen CW11 6.12.2018
PW.9 Raju.C CW13 6.12.2018
PW.10 Dr.Radha CW12 24.1.2019
PW.11 Parameshwarappa CW14 24.1.2019
PW.12 Hanumanthaiah CW7 16.2.2019
PW.13 Somashekar CW15 16.2.2019
PW.14 D.S.Manjunath CW17 1.3.2019
Documents marked for the prosecution:
Ex.P1 Statement given by PW1/victim girl before the
Magistrate under Sec.164 of Cr.P.C
Ex.P1(a) Signatures of PW1/victim girl
and P1(b)
Ex.P2 Complaint dated: 24.3.2016 lodged by PW2 before
the complainant police
Ex.P2(a) Signature of PW2
Ex.P2(b) Signature of PW14
Ex.P3 Spot Mahazar
Ex.P3(a) Signature of PW2
Ex.P3(b) Signature of PW5
26 Spl CC No. 232/2016
Ex.P3(c) Signature of PW12
Ex.P3(d) Signature of PW14
Ex.P4 Statement given by PW3 before the complainant
police under Sec.161 of Cr.P.C
Ex.P5 Medical Certificate of PW1/victim girl
Ex.P5(a) Signature of PW4
Ex.P5(b) Signature of Pw14
Ex.P6 Statement of PW6 given before the complainant
police under Sec.161 of Cr.P.C
Ex.P7 Letter dated: 26.3.2016 issued by Amith Cabs
which shows that the accused was working as a driver in the said Cabs Ex.P7(a) Signature of Pw7 Ex.P7(b) Signature of PW14 Ex.P8 Statement given by PW7before the complainant police under Sec.161 of Cr.P.C Ex.P9 Medical Certificate of the accused Ex.P9(a) Signature of Pw8 Ex.P9(b) Signature of PW14 Ex.P10 Report given by PW9 to the PI of the complainant police station with regard to collecting of the articles belonging to the victim and the accused Ex.P10(a) Signature of PW9 Ex.P10(b) Signature of PW14 Ex.P11 FSL Report Ex.P11(a) Signature of PW10 Ex.P11(b) Signature of PW14 Ex.P12 Sample seal 27 Spl CC No. 232/2016 Ex.P12(a) Signature of PW10 Ex.P13 Report given by PW11 to the PI of the complainant police station with regard to taking of the sealed articles belonging to the victim and the accused to RFSL, Mysore and producing the acknowledgement Ex.P13(a) Signature of PW11 Ex.P13(b) Signature of PW14 Ex.P14 Acknowledgement issued by RFSL, Mysore. Ex.P14(a) Signature of PW14 Ex.P15 Report given by PW13 regarding apprehending the accused of this case and producing him befroe the PI of the complainant PS Ex.P15(a) Signature of PW13 Ex.P15(b) Signature of PW14 Ex.P16 PF No.9/2016 dated: 4.4.2016 Ex.P16(a) Signature of PW14 Ex.P17 Statement given by CW4 before the Magistrate under Sec.164 of Cr.P.C Ex.P17(a) Signature of PSI Ex.P18 Requisition given by PW14/PI of Complainant PS to the Head Master, Government School, Yelahanka, Bangalore, to issue the study certificate of PW1/victim girl of this case. Ex.P18(a) Signature of PW14 Ex.P19 Requisition given by PW14 to PW4/Dr.Kavitha, OBG, St.John's Medical College and Hospital, Koramangala, Bangalore to examine PW1/victim girl.
Ex.P19(a) Signature of PW14 Ex.P20 Further opinion given by PW4/Dr.Kavitha with regard to the injuries on the body of PW1/victim girl Ex.P20(a) Signature of PW14 Ex.P21 Study Certificate issued by the Head Master, Government School, Yelahanka, Bangalore, wherein PW1/victim was studying certifying the date of birth of PW1/victim as 16.2.2004 28 Spl CC No. 232/2016 Ex.P21(a) Signature of PW14 Ex.P22 Letter issued by the Head Master, Government School, Yelahanka, Bangalore, wherein PW1/victim was studying certifying the date of birth of PW1/victim as 16.2.2004 Ex.P22(a) Signature of PW14 Ex.P23 FIR Ex.P23(a) Signature of PSI/CW16 Francis of Bommanahalli police station Material Objects marked for the prosecution:
MO-1 CD[small video casettee player] MO-2 Lavender colour top MO-3 Lavender colour bottom MO-4 White bra MO-5 Panties MO-6 Vaginal swab MO-7 Nail clippings MO-8 Pubic swab MO-9 High vaginal smear MO-10 High vaginal swab MO-11 Blood MO-12 Low vaginal smear MO-13 Scalp hair MO-14 Articles of the accused to MO- 21 MOs-14(a) Signatures of PW8 to 21(a)
Witness examined, documents and MOs marked for the accused: NIL [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.29 Spl CC No. 232/2016
21.8.2019 Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(2) of Cr.P.C, I hereby convict the accused for the offences punishable under Secs. 366 and 342 of IPC and Sec.6 of POCSO Act, 2012 r/w Sec.376(1) of IPC.
[R.SHARADA]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.30 Spl CC No. 232/2016
27.8.2019 Sentence pronounced in open court:
[ Vide separate detailed Sentence]
(a) I hereby sentence the accused to undergo Simple Imprisonment for a period of 3 Years and he shall also pay a fine of Rs.5,000/- for the offence punishable under Sec.366 of IPC. In default of payment of the fine amount the accused shall further undergo Simple Imprisonment for a period of 3 Months.
(b) Further, I hereby sentence the accused to undergo Simple Imprisonment for a period of 6 months for the offence punishable under Sec.342 of IPC.
(c) Further, I hereby sentence the accused to undergo Rigorous Imprisonment for a period of 20 Years and he shall also pay a fine of Rs.10,000/- for the offences punishable under Sec.376(3) of IPC r/w Sec.6 of POCSO Act, 2012. In default of payment of the fine amount, the accused shall further undergo Simple Imprisonment for a period of One year.31 Spl CC No. 232/2016
All (a) to (c) sentences shall run concurrently.
Acting under Sec.428 of Cr.P.C, the period of detention undergone by the accused is set-off against the sentence of imprisonment imposed.
MO-1 being the CD(small video casettee player) is ordered to be kept with the other material evidence.
MOs-2 to 21 being worthless are ordered to be destroyed after the appeal period is over.
Copy of this Judgement shall be given to the accused free of cost forthwith.
[R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
32 Spl CC No. 232/2016