Bangalore District Court
SPL.C/542/2014 on 23 January, 2016
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 23rd DAY OF JANUARY 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 542 / 2014
COMPLAINANT :
The State of Karnataka by
Hennur Police Station, Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED :
1. Shafiulla Khan son of late
Yousuff Khan, aged 52 years,
residing at No.24/243260/A,
25th cross, 1st stage, HBR Layout,
5th block, Kalyananagara,
Bangalore.
2. Parveen alias Parveen Khan
w/o. Shafiulla Khan, aged 46
years, residing at
No.24/243260/A, 25th cross, 1st
stage, HBR Layout, 5th block,
Kalyananagara, Bangalore.
2 Spl.CC 542/2014
3. Nikitha Vishah alias Nikhitha
Vishak son of V. Vishak, aged 31
years, residing at No.702 "A"
wing, Mansi Plaza, I.C. colony,
Boriwili West, Mumbai.
[Represented by learned
counsel Younous Ali Khan and
Associates, Advocates]
***
JUDGMENT
Hennur Police, Bangalore City have charge sheeted the accused No.1 to 3 for the offences punishable under sections 363, 342, 323, 506, 376, 120(B) of I.P.C.
2. The case of the prosecution in brief, is as under :
CW3-Ayesha is the minor daughter of CW1 Mohammed Yasin and CW2 Fathima. CW3-Ayesha used to go to the house of accused No.1 and 2 to assist accused No.2 in domestic work. CW3 and minor son of accused No.1 and 2 were loving each other which was disliked by accused No.1 and 2. On
3 Spl.CC 542/2014 12.7.2011 when CW3 had gone to the house of accused No.1 and 2 to see their son Ali Khan, she was wrongfully confined in their house by accused No.1 and 2 and also accused No.3 who is the sister of accused No.2 for three days and thereafter for one week in the house of mother of accused No.2 and 3 in R.T. Nagar, Bangalore. Thereafter she had been kidnapped by them to Bombay and kept her in the house of accused No.3. Accused No.1 and 2 returned to Bangalore. Accused No.1 again had been to Bombay where he stayed for three months from the month of October 2011 to December 2011, during which time he had committed rape on CW3 in the absence of accused No.3, he also had given tablets of which caused miscarriage. CW3 on 5.11.2012 informed CW5-Dadu Peer that she was in the house of accused No.3. In the meanwhile CW1 had already lodged a complaint before the Hennur Police. Hennur Police brought CW3 from the house of accused No.3. The I.O., after registering the case 4 Spl.CC 542/2014 drew necessary mahazar. He had recorded statement of the victim CW3-Ayesha and also other prosecution witnesses. He recorded the voluntary statement of the accused. Accused and CW3 were sent to hospital for medical examination. By completing the investigation, he submitted the Charge Sheet to the Court for the aforesaid offences.
3. The charge sheet was submitted to XI ACMM Court, the same was committed to the Sessions Court as it is triable by Sessions Court. After registering the case in Spl.CC, it was entrusted to this Court. After following the procedure laid down under law the charge against accused No.1 to 3 for the offence punishable under Section 344 and 363 R/w. Sec. 34 of I.P.C, and against accused No.3 for the offence punishable under section 376 and 313 of IPC was framed and read over to accused No.1 to 3. They pleaded not guilty and claimed to be tried. Hence, posted for evidence on prosecution side.
5 Spl.CC 542/2014
4. On prosecution side, got examined as many as 11 witnesses out of 25 witnesses, marked Ex.P.1 to Ex.P 21(a) and MO1 on prosecution side, the details of which are given in the annexure of this Judgment. Accused statement under Section 313 Cr.P.C., has been recorded against accused No.1 to
3. They have denied the whole incriminating evidence against them and have not chosen to lead evidence on their side.
4. Heard the arguments on both sides. Perused and posted for Judgment.
5. The points that arise for my consideration are as under :
1) Whether the prosecution has proved beyond reasonable doubt that accused No.1 to 3 in furtherance of their common intention had wrongfully confined CW3-Ayesha, minor daughter of CW1 and 2 in the house of 6 Spl.CC 542/2014 accused No.1 and 2 bearing No. No.24/243(260/A), 25th cross, 1st stage, HBR Layout, 5th block, Kalyananagara, Bangalore, for three days and thereafter wrongfully confined CW3 for one week in the house of mother of accused No.2 and 3 in R.T.Nagar, Bangalore and also in the house of accused No.3 bearing No.702 "A"
wing, Mansi Plaza, I.C. colony, Boriwili West, Mumbai, till 14.11.2012 punishable under section 344 R/w. Sec. 34 of IPC?
2) Whether the prosecution has proved beyond reasonable doubt that accused No.1 to 3 in furtherance of their common intention had kidnapped CW3-
Ayesha, minor, without the consent of CW1 and 2 punishable under section 363 R/w. Sec. 34 of IPC?
3) Whether the prosecution has proved beyond reasonable doubt 7 Spl.CC 542/2014 that accused No.1 had committed rape on CW3-Ayesha, minor, during the period from the month of October, 2011 to December, 2011 in the aforesaid house of accused No.3 at Mumbai punishable under section 376 of IPC?
4) Whether the prosecution has proved beyond reasonable doubt that accused No.1 had caused miscarriage to CW3-Ayesha without her consent, after commission of rape by way of giving tablets punishable under section 313 of IPC?
5) What order?
6. My findings on the above points are as under:-
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : In the negative
Point No.4 : In the negative
8 Spl.CC 542/2014
Point No.5 : As per final orders for the following:
REASONS
7. Point Nos.1 & 2:- These two points are interconnected each other, hence both are taken together for common discussion. There are three accused in the present case. Accused No.1 is the husband of accused No.2. Accused No.3 is the younger sister of accused No.2. Accused No.3 has been residing in Bombay.
8. The prosecution made several allegations against the accused, very particularly common allegations against accused No.1 to 3 that they have kidnapped PW1 Ayesha, minor daughter of PW2 Mohammed Yasin and PW2 Fathima and wrongfully confined in the house of accused No.3 in Bombay. According to the prosecution PW1 was minor as on the date of alleged incident. The alleged incident took place prior to commencement of Protection of 9 Spl.CC 542/2014 Children from Sexual Offences Act, 2012. Hence the said Act does not apply to the present case.
9. On going through the entire evidence on prosecution side there is no denial on defence side with respect to the age of PW1 prosecutrix. According to the prosecution she was aged about 16 years as mentioned in the charge sheet. In the complaint at Ex.P3, PW2 Mohammed Yaseen, father of the prosecutrix mentioned her age as 13 years, as on that date. In view of medical evidence she was above 14 years, below 15 years. It is pertinent to note, in view of medical jurisprudence, two years minus or plus may be there, the benefit of which shall be given to the accused in the absence of any authenticated documents and conclusive proof on the part of the prosecution. The initial burden lies upon the prosecution to establish the age of the prosecutrix is below 18 years. In the present case, there is another serious allegation against accused No.1 that he had committed rape during the period 10 Spl.CC 542/2014 when she was kept under wrongful confinement in the house of accused No.3 and also there was miscarriage. Under the circumstance even whether the prosecutrix was above 16 years or below 16 years is also another material point to be seen in the present case. In view of oral testimony of PW2, PW3 victim is of 16 years. In view of evidence of PW1 she is of 17 years, at present she was studying in SPN school in Nagawara, Bangalore. However, the prosecution has not at all produced the authenticated documents to show her age either under 16 years or under 18 years. Under the circumstance the medical evidence placed on record may be considered by giving the benefit of two years variation. Accordingly age of the prosecutrix could be concluded that she was above 16 years, but below 18 years as on that date.
10. Now the next question arises for my consideration, whether accused No.1 to 3 had kidnapped PW1 the prosecutrix without the consent 11 Spl.CC 542/2014 of her parents and wrongfully confined at the beginning in the house of accused No.1 and 2, thereafter in the house of mother of accused No.2 and 3 at Bangalore, thereafter in the house of accused No.3 in Bombay from 12.7.2011 to 14.11.2012. Accused No.1 to 3 are alleged to have wrongfully confined PW1 on 12.7.2011 in the house of accused No.1 and 2 for three days. PW1 used to visit the house of accused No.1 and 2 to do some domestic work. Her mother also often visited the house of accused No.1 and 2. PW1 to 3 were residing nearby the house of accused No.1 and 2. Accused No.1 and 2 have been residing in HBR extension, Bangalore. According to the prosecution PW1 was loving Ali Khan son of accused No.1 and 2. Ali Khan was also loving her, but it was disliked by accused No.1 to 3. They also protested and warned PW1 not to talk with Ali Khan. But even otherwise PW1 used to visit their house. On 12.7.2011 she left her house to wash the clothes in the house of her 12 Spl.CC 542/2014 aunt Suchithra and since there was no supply of water on that day, she was coming back home. On the way when she visited the house of accused to see Ali Khan, she was wrongfully confined in their house by accused for three days and thereafter for one week in the house of mother of accused No.2 and 3 in R.T. Nagar Bangalore, thereafter she was kidnapped and confined in the house of accused No.3 at D.No.702, "A" wing, Mansi Plaza, I.C. colony, Boriwili West, Mumbai, till 14.11.2012.
11. PW1 had telephoned to PW5 Dadu Peer, maternal uncle of the prosecutrix and conveyed the message that she had been kidnapped by accused No.1 to 3 and kept her in the house of accused No.3. On the basis of this information the Police with complainant i.e., PW2 and PW5 Dadu Peer had gone to Bombay and with the help of the local police traced the house and rescued PW1 from the custody of accused No.3 and produced her before the IO-PW7 H. Lakshmi Narasimha Prasad on 15.11.2012. This 13 Spl.CC 542/2014 is the case of the prosecution concerned to kidnapping and wrongful confinement of PW1 by accused No.1 to 3.
12. In order to prove these aspects, the prosecution got examined material witnesses i.e., PW2 Mohammed Yasin-complainant and father of prosecutrix, PW3-Fathima-mother of prosecutrix, PW1-Ayesha-prosecutrix, PW4-Sadiq brother of prosecutrix, PW5-Dadu Peer-maternal uncle of prosecutrix, PW9 Krishna, then HC in Hennur PS. Taking or enticing away the minor girl is essential ingredient of offence of kidnapping. Charge against accused No.1 to 3 is for the offence under Section 363 of IPC and also Section 343 of IPC. So far as concerned to wrongful confinement, as per the prosecution the reason for kidnapping and wrongful confinement of PW1 by the accused is she was loving Ali Khan, son of accused No.1 and 2. Though they warned her not to visit their house, she used to visit their house to see Ali Khan. In order to avoid 14 Spl.CC 542/2014 continuation of the same they had kidnapped and confined her as noted supra. On going through the evidence of PW1 to 5, I do not find that PW1 and Ali Khan were loving each other. PW1 the prosecutrix herself has not at all whispered anything on this aspect. PW2 is the father, PW3 is the mother, PW4 is the brother and PW5 is the maternal uncle of the prosecutrix. They are all material witnesses to speak out on this point. But their evidence do not suggest that there was love affair between PW1 and Ali Khan. At the first style itself the prosecution has failed to establish this aspect.
13. Now the question arises whether PW1 was wrongfully confined in the house of A1 and 2 and thereafter in the house of mother of accused No.2 and 3. It is also alleged that accused No.1 to 3 had thereafter taken away PW1 victim girl from Bangalore to Bombay and wrongfully confined her in the house of accused No.3 till 14.11.2012. PW1 Ayesha the prosecutrix is the material witness to 15 Spl.CC 542/2014 speak on this aspect. On going through her evidence she has not at all supported the case of the prosecution. Of course, she has stated in her chief examination that she was with accused No.3 in her house, but according to her evidence she had been sent by her mother with accused No.3. Under these circumstances the evidence of PW3 Fathima, mother of the victim shall have to be looked in to. In the chief examination itself PW3 mother of prosecutrix has stated that she herself had sent Ayesha with Accused No.3, she did not reveal this matter before her husband. On going through her entire evidence does not give any incriminating statement against accused No.1 to 3. With this background the evidence of PW2 Mohammed Yasin father of the victim girl is read as a whole also does not incriminate any of the accused. In his chief examination he has stated that he was not in station. On his return he found missing of his daughter. Hence he lodged a complaint. After one 16 Spl.CC 542/2014 year she herself returned, but she did not see anything. In further he has stated that he came to know that she was with the accused in Bombay, brought her back. But he has not at all given statement before the police that accused had taken away victim girl, without their knowledge. He is subjected to cross examination by the learned public prosecutor. But he has denied all the suggestions made by him reiterating the case of the prosecution. He has specifically denied in his cross examination that accused No.1 to 3 had kidnapped victim girl and wrongfully confined her in the respective houses, as already mentioned in supra. Under these circumstances it is very difficult to say that it constitute the offence of kidnapping.
14. PW9 Krishna-Head Constable has been examined on prosecution side. According to prosecution, he alongwith the complainant and PW5 Dadu Peer had gone to Bombay to bring the victim back. He had produced victim girl before PW7 IO 17 Spl.CC 542/2014 with a report at Ex.P19. At the time of taking the victim girl to custody accused No.3 had given a letter as per Ex.P18 on 14.11.2012 that accused No.3 had brought her and she was with her. With this background on going through the evidence of PW5 Dadu Peer, maternal uncle of victim girl, he has also not fully supported the prosecution case. Of course he has stated in his chief examination that one year back the neighbours of accused No.3 had telephoned and informed that there was a child. He informed the complainant. In the cross examination led by the learned counsel for the accused he has stated that he did not speak to the prosecutrix over telephone. The person spoken to him said that he is from Bombay. According to the case of the prosecution on 5.11.2012 he had received the phone call from prosecutrix herself and she informed him that she was with PW3. As per Ex.P4 the further statement stated to have been given by PW2 would speak that the prosecutrix had telephoned on 9.11.2012, 18 Spl.CC 542/2014 thereafter in the further statement of PW2 at Ex.P5 mentioned that the prosecutrix had telephoned to PW5 on 5.11.2012. No telephone call particulars are produced on prosecution side. Keeping in view the oral testimony of PW1 to 3 and 6 and Ex.P4 and 5 the case of the prosecution suffers from material contradictions. PW1 to 3 have not at all supported the prosecution that accused had kidnapped PW1 and kept her in wrongful confinement. Even PW4 Siddiq, who is the brother of the prosecutrix also has turned hostile. His evidence is also not helpful to the case of the prosecution. Under the circumstances, on the sole testimony of PW9 N. Krishna that accused No.3 had given Ex.P18 letter as stated in supra cannot be based to hold the guilt of accused No.1 to 3 for the offence of kidnap and also wrongful confinement. The version of prosecutrix assumes more importance. She is the proper person than any other witnesses to speak out the illegal activities of accused No.1 to 3, But, I do not find any 19 Spl.CC 542/2014 incriminating statements not only in the evidence of the prosecutrix but also in the evidence of PW2 to 5 to convict the accused for the offence of kidnapping and also wrongful confinement.
15. PW6 is then ASI Shivalingaiah, who registered the case based on the complaint given by PW2 Mohmmed Yasin. It is pertinent to note according to prosecution, she was alleged to have been kidnapped by accused No.1 to 3 on 12.7.2011 itself. But same had not been reported on the same day or within a reasonable time. The complaint had been lodged on 7.9.2011 only, reporting missing of prosecutrix. There is inordinate delay in lodging the complaint. No explanation is forthcoming on prosecution side with respect to the cause of delay. Whether PW2 or PW3 has not stated anything about the cause of delay in reporting the missing complaint. That itself doubts the case of the prosecution that the kidnapping occurred. Keeping in view all these facts and also the evidence of 20 Spl.CC 542/2014 PW1to 5 which are not favourable to the prosecution it is not safe to convict accused No.1 to 3 for offence of kidnapping and also for wrongful confinement. The prosecution has failed to establish the ingredients of offence of kidnapping. There is no reliable and cogent evidence to believe the case of the prosecution that prosecutrix had been removed from the lawful custody of her guardian without their consent. If she been really kidnapped, either PW1 or 2 would not have kept silent till 7.9.2011. Viewed from any angle the prosecution has miserably failed to establish its case beyond reasonable doubt for the offence punishable under section 363 and 343 of IPC. Accused No.1 to 3 are entitled to benefit of doubt. Hence, I hold point No.1 and 2 in the negative.
16. Points 3 and 4:- Now the next question arises for my consideration whether accused No.1 had committed rape on PW1 Ayesha. I have already discussed in supra about the evidence with respect 21 Spl.CC 542/2014 to her age. As already discussed in supra, the prosecution has failed to prove her age under 16 years, of course she was under 18 years. The alleged incident took place prior to commencement of Protection of Children from Sexual Offences Act, 2012. As per the allegations made by the prosecution he had committed rape on her during the month of October 2011 to December 2011. When PW1 was in the house of PW3, accused No.1 had gone to Bombay in the year 2011 and he stayed there from October to December 2011, during which period he had committed rape. When he learnt that her menstrual period stopped, he had given pills for abortion, within a week it caused miscarriage. In order to prove this aspect on prosecution side got examined PW1 Ayesha, PW8 Dr. B.M. Nagaraju, PW10 G. Prabhakar-Police Inspector and PW7-H. Lakshminarayana Prasad, who partly investigated in the present case.
22 Spl.CC 542/2014
17. According to prosecution she had been subjected to medical examination. PW8 has opined that there are no signs of having sexual intercourse recently, but there are signs that she is used to act of sexual intercourse. But there are signs of having sexual intercourse often, Hymen is not intact. In view of this fact on going through the evidence of PW1 Ayesha, she has not at all supported the prosecution case. She has specifically denied in the cross examination led by the learned public prosecutor that accused No.1 had committed rape on her and also he had given pills to her to cause miscarriage. In cases of rape we may not find an eye witness. Under these circumstances the evidence of the prosecutrix carries more weight. But no incriminating statement is forthcoming in her evidence to draw the inference against accused No.1. She has turned hostile. PW2 to 5 are heresay witnesses. Even they have also not stated anything on this aspect. They have denied the suggestions 23 Spl.CC 542/2014 made by learned public prosecutor on this aspect. Now, the question arises whether acused can be convicted based on the evidence of PW8. It is pertinent to note according to PW 17 there are no signs of having sexual intercourse recently, but there are signs to have sexual intercourse often prior to that. This is not supported by any other evidence. Firstly, the prosecution has failed to prove that her age as on the date of alleged incident was under 16 years. Secondly, the oral testimony of PW1 to 5 do not support the case of the prosecution. PW1 herself has not at all stated that accused No.1 had committed rape on her. Instead she has totally rejected the suggestion on this aspect. When there is difference between the oral evidence of proselcutrix and medical evidence, the oral evidence prevails and apart from that there is no proof that she was 16 years. Therefore, the evidence of PW10 and 7 IO cannot be based to convict the accused for the offence of rape and miscarriage. PW7 stated that 24 Spl.CC 542/2014 accused No.1 was apprehended after issuing the look out notice and in the Bangalore airport, that is not the ground to convict the accused for the offence of rape and miscarriage. In the absence of reliable and cogent evidence, the prosecution has miserably failed to establish its case. There are no enough materials to convict the accused for the offence of rape. Even for offence under section 313 of IPC the prosecution has miserably failed to establish its case beyond reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold point No.3 and 4 in the negative.
18. Point No.2: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C., accused No.1 to 3 are hereby acquitted for the offence punishable under Section 343 and 363 R/w. Sec. 34 of I.P.C. Accused No.1 is 25 Spl.CC 542/2014 acquitted of the offence punishable under Section 376 and 313 of IPC.
MO1 passport is hereby ordered to be released to Accused No.1 after appeal period is over.
(Dictated to the Judgment Writer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 23rd day of January, 2016.) (SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION P.W.-1 Kum. Ayesha P.W.-2 Mohammed Yaseen P.W.-3 Fatheema P.W.-4 Sadhik P.W.-5 Dadu Pheer P.W.-6 J. Shivalingaiah P.W.-7 H. Lakshminarayan Prasad P.W.-8 Dr. B.M. Nagaraj P.W.-9 N. Krishna P.W-10 G. Prabhakar P.W-11 Madhuraiah 26 Spl.CC 542/2014 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P.1 Mahazar Ex.P.1(a) Signature of PW1 Ex.P1(b) Signature of PW9 Ex.P1(c) Signature of PW10 Ex.P.2 Statement of PW1 Ex.P.3 Complaint Ex.P.3(a) Signature of PW2 Ex.P3(b) Signature of PW6 Ex.P.4 Statement of PW2 Ex.P.5 Statement of PW2 Ex.P.6 Mahazar Ex.P6(a) Signature of PW2 Ex.P.7 Statement of PW3 Ex.P.8 Statement of PW4 Ex.P.9 FIR Ex.P9(a) Signature of PW6 Ex.P.10 ASI Report Ex.P10(a) Signature of PW6 Ex.P11 Look Out Circular (LOC) Ex.P11(a) Statement of PW7 Ex.P12 Mahazar Ex.P12(a) Signature of PW7 Ex.P13 Report Ex.P13(a) Signature of PW7 Ex.P14 Requisition letter Ex.P14(a) Signature of PW7 Ex.P15 T.C. 27 Spl.CC 542/2014 Ex.P15(a) Signature of PW7 Ex.P16 Medical report Ex.P16(a) Signature of PW7 Ex.P16(b) Signature of PW8 Ex.P17 Medical Report Ex.P17(a) Signature of PW8 Ex.P17(b) Signature of PW10 Ex.P18 Report of A3 Ex.P18(a) Signature of PW9 Ex.P19 Report Ex.P19(a) Signature of PW9 Ex.P20 Report Ex.P20(a) Signature of PW10 Ex.P21 Mahazar Ex.P21(a) Signature of PW10 LIST OF MATERIAL OBJECTS MARKED MO1 : One passport LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
-NIL-
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.
*** 28 Spl.CC 542/2014 23.01.2016 State by PP A1 to 3 are on bail - YAK For Judgment Judgment pronounced in the open court, operative portion of which reads as under:-
ORDER Acting under Section 235(1) of Cr.P.C., accused No.1 to 3 are hereby acquitted for the offence punishable under Section 343 and 363 R/w. Sec. 34 of I.P.C. Accused No.1 is acquitted of the offence punishable under Section 376 and 313 of IPC.
MO1 passport is hereby ordered to be released to Accused No.1 after appeal period is over.
(SHUBHA GOWDAR) L Addl.City Civil & Sessions Judge, Bangalore.