Bangalore District Court
Unknown vs Bhupathi.K on 3 February, 2020
IN THE COURT OF THE LIII ADDITIONAL CITY CIVIL &
SESSIONS SPECIAL JUDGE,
BENGALURU
DATED THIS THE 3rd DAY OF FEBRUARY, 2020
-: PRESENT :-
S.H.PUSHPANJALI DEVI, B.A. LL.B.,
LIII Addl. City Civil & Sessions Special Judge,
Bengaluru.
SPECIAL C.C.NO. 539/2018
COMPLAINANT :
The State of Karnataka by
Mahadevapura Police Station,
Bangalore.
[Rep by Public Prosecutor]
/ VERSUS /
ACCUSED:
Bhupathi.K,
S/o R.Karnakaran,
Aged about 21 years,
R/o No.5-8, 16th Main,
Lakkasandra,
Bangalore.
R/at No.87, Bajar Street,
Vadapanthal village,
Arkat Taluk, Veloor District,
Tamilunadu.
[Rep. by Mr. SY- Advocates]
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Spl.C.C. 539/2018
TABULATION OF EVENTS
1. Date of Commission : 29/05/2018
Of Offence
2. Date of Report :
Of Offence 30/05/2018
3. Date of arrest of Accused : 30/05/2018
4 Date of release on Bail 05/12/2018
5 Period undergone in Judicial
Custody 6 months 5 days
6 Name of the Complainant : Sri. Phani Sharma
7. Date of Commencement of :
recording evidence 28/08/2019
8. Date of Closing of Evidence : 25/10/2019
9. Charges framed : Sections 7 R/w 8 of POCSO
Act, 2012.
10. Opinion of the Judge : As per final order
(S.H.PUSHPANJALI DEVI)
LIII Addl.City Civil & Sessions Special Judge,
Bangalore.
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Spl.C.C. 539/2018
JUDGMENT
This Charge Sheet is filed by the Police Inspector of Mahadevapura Police Station, Bangalore City against the Accused for the offences punishable under Section 8 of POCSO Act, 2012.
2. The brief facts of the case of the Prosecution are that, the Accused being the Lift Mechanic on 29/05/2018 at about 10.30 am, when the minor Victim the daughter of Complainant Phani Sharma was going in the Lift to ground floor wearing Swimming dress, he has provoked after seeing her and touched her left side chest from his right hand and committed Sexual Assault on her.
3. Subsequently, Complainant Phani Sharma gave the Complaint to the Mahadevapura Police Station on 30/05/2018 and case is registered in Crime No. 264/2018 for the Offence punishable under section 8 of POCSO Act, 2012.
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Spl.C.C. 539/2018
4. The Accused was arrested on 31/05/2018 and produced before the Court. Subsequently, he was represented through the Counsel and granted bail by the Hon'ble High Court of Karnataka in Criminal Petition No. 6621/2018 on 05/12/2018. But, he was released on 12/12/2018, after furnishing surety before this Court.
5. The Investigating Officer has filed Charge Sheet against the Accused for the offence punishable under Section 8 of POCSO Act, 2012. This Court has taken Cognizance of the said offence and after hearing both learned Public Prosecutor and the learned Counsel for the Accused, framed the Charge for the offence punishable under Section 7 R/w 8 of POCSO Act, 2012. The same is read over and explained to the Accused, he is not pleaded guilty and claims to be tried. 5
Spl.C.C. 539/2018
6. The Prosecution examined 9 witnesses out of 13 witnesses as PWs 1 to 9. The documents are marked as Ex.P1 to 9, Ex.P1(a), 2(a)(b), 4(a), 5(a), 6(a), 7(a)
(b),8(a), 9(a). The Prosecution has given up CWs 5, 7and 11 and closed the evidence of Prosecution.
7. Subsequently, the incriminating circumstances in the evidence of Prosecution witnesses read over and explained to the Accused under Section 313 of Cr.P.C. He has denied the entire evidence and not chosen to lead any defence evidence on his behalf.
8. Heard, the arguments of learned Public Prosecutor for the State and the learned Counsel for the Accused on merits.
9. The points that arise for my consideration are :
1. Whether the Prosecution proves that, the Accused on 29/5/2018 at about 10.30 amwhen the minor Victim aged about 11 years wearing Swimming dress was going in the lift to the ground floor, the Accused who came to repair 6 Spl.C.C. 539/2018 the lift, saw her and by provocation touched her left side chest and committed Sexual Assault punishable under Section 7 R/w 8 of POCSO Act, 2012 ?
2. What Order?
10. My findings on the above points are as under:-
Point No.1 : In the Negative
Point No.2 : As per final order
for the following
REASONS
11. Point No.1: The Complainant, father of the Victim Sri Phani Sharma is examined as PW-1. He has identified the Complaint given against the Accused as per Ex.P-1 after coming to know about the Sexual Assault committed by the Accused on his minor daughter while she was going in Swimming suit to the ground floor in the lift. The Police after receiving the Complainant came to the Spot and conducted the Mahazar as per Ex.P-2 and his signature is marked as Ex.P-2(a). He has also deposed about the Statement of 7 Spl.C.C. 539/2018 his daughter taken by the Women Police Constable and also the Further Statement given by him to the Police.
12. In the Cross-examination, he has admitted as on the date of incident, he returned to home at about 9.15 PM after competing his work. He has also admitted that a CCTV has been installed in front of the lift and he is residing in the same Apartment since 7 years. The incident was disclosed by the victim at about 10 PM, but he did not ask the Manager of Apartment about CCTV Footage. He has denied that the Accused came from Tamilnadu on the same day to work and he was not knowing Kannada Language, he has scolded him for not doing the work of lift properly. Admittedly, his daughter was at home on the said date of incident as she was having holiday for the School. He along with his wife called her many times, when she was at home during day time. He has further stated about the Signature put to the Mahazar as per Ex.P2(a) in the Police Station.
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13. The Mother of the Victim Smt. Sunina is examined as PW-3. She made known about the incident over phone at about 10.30 PM that some body has touched the chest of her daughter when she was going in the lift. Therefore, she along wit her husband consulted the Association of Apartment and gave Complaint to the Mahadevapura Police Station. She has identified the Accused before Court as he came to the Apartment on the date of incident to repair the lift.
14. In the Cross-examination, she has stated about the incident was made known by her husband at about 10.45 PM and she was also called her daughter during day time, when she was at home. Likewise, her husband also talked with the Victim on phone. She has denied that her husband scolded the Accused as the lift become out of order. She has also not taken any CCTV Footage from the Manager of Apartment. Admittedly, her daughter was quite normal and continued her Swimming in the Swimming pool and returned to home 9 Spl.C.C. 539/2018 without any disturbance. She has further admitted that when the Police visited their house, her parents were also with them and the Victim did not disclose anything about the incident with her grand parents. She has further admitted that on the same day other two persons were also came from Johnson Company for repairing the Lift.
15. The Victim aged about 12 years is examined as PW-2. She has denied a false Complaint given against the Accused on the say of her father. However, she has clearly stated she has narrated the incident of Sexual Assault caused by the Accused as a Liftman on 29/05/2018 when she was going to the ground floor by wearing Swimming dress. She has stated about touching of her lift side chest by him, thereafter she went to Swimming pool and returned to home and informed the same to her father during night hours, when he returned from work. Her Statement given 10 Spl.C.C. 539/2018 before the Magistrate under Section 164 Cr.P.C. is marked as Ex.P-3.
16. In the Cross-examination she has admitted that as on the date of incident the person who came to the lift was repairing it, but he was not holding any tools in is hands. She has admitted that the installation of CCTV Camera in the ground floor, from which it can be made out, who will come and go in the lift to the ground floor. She has denied that the Accused did not touch her left chest and not caused any Sexual Assault. She has also stated that after the alleged incident she went near the Swimming pool where other children were also waiting for Swimming, with whom she did not disclose anything about the Sexual Assault by the Accused.
17. The independent witness Anand is examined as PW-4. He is working in the Johnson Company as a Service Manager and the Accused was doing the work of Helper. He has given Training Appointment letter of 11 Spl.C.C. 539/2018 Accused to the Police, which is marked as Ex.P-4. He has admitted that the Accused joined the Company on 02/05/2018 and he was not knowing Kannada as he is Native of Tamilnadu. He do not know anything except producing the said document before the Court.
18. The Medical Officer Dr. Suresh V. is examined as PW-5. He has examined the Accused and gave Medical Report as per Ex.P-5 and his signature is marked as Ex.P-5(a). In the Cross-examination, he has denied a false Medical Report of the Accused issued on the pressure of the Investigating Officer.
19. One of the witness for Mahazar Ex.P-2 Ragavendra Raju is examined as PW-6. He has identified his signature on the Mahazar marked as Ex.P- 2(b). He has stated the contents of the Mahazar written with regard to the Sexual Assault caused with a person on the minor daughter of the Complainant, when she was going in the lift. The Police visited the 12 Spl.C.C. 539/2018 spot of occurrence in the Apartment and drawn Mahazar in presence of another witness Mehar. In the Cross-examination he has denied that no Mahazar conducted by the Police at the lift and he has put his signature to it in the Police Station.
20. The Police constable Mr. Anitha Kumar is examined as PW-7. He was deputed on the work of search of Accused on 30/05/2018 along with CW-12. On the information, both of them went to Jhonson Lift Private Company, where the Accused was working and brought him, produced before the Investigating Officer with a Report marked as Ex.P-7 and his signature as Ex.P-7(a). He has denied for the suggestion that he did not visit Johnson Company and caught hold the Accused, thereafter produced before the Investigating Officer.
21. The Police Sub-Inspector Prashila B.S. is examined as PW-8. She has deposed about receiving of 13 Spl.C.C. 539/2018 the Complaint from the Complainant on 30/05/2018 and case registered in Crime No. 264/2018 for the offence punishable under Section 8 of POCSO Act, 2012. Her signature on the said Complaint is marked as Ex.P1(a) and FIR is marked as Ex.P-8, bears her signature as Ex.P- 8(a). She is also deputed her Subordinates in search of Accused, afterwards the Accused was brought and produced before her under Report Ex.P-7, for which she put her signature is marked as Ex.P-7(b).
22. In the Cross-examination she has admitted that after registering FIR, she visited the spot on 1/6/2018 and conducted Mahazar at Spot near the Lift in the Appointment. She has admitted the instillation of CCTV Camera in front of the lift, verified the same. She has also admitted no photo of the Accused given to the Subordinates while they were deputed on search of Accused. She has denied that the Statement of the Victim not recorded in her presence and no investigation conducted by her.
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23. The Police Inspector Mr. Srinivas T is examied as PW-9. He has conducted further investigation after taking case file from PW-8 and conducted Mahazar as per Ex.P-2, his signature is marked as Ex.P-2(c). He has also sent the Accused for Medical examination to the Bowring Hospital. Thereafter, produced him before the Court and he was remanded to Judicial Custody. The Medical Certificate of the Accused identified under Ex.P-5, bears is signature as Ex.P-5(b). The School Certificate relating to the minor victim obtained under Ex.P-6 bears his signature marked as Ex.P-6(a). He has also obtained the documents relating to the Employment of the Accused from Johnson Company as per Ex.P-4 and his signature is marked as Ex.P4(a). The letter Ex.P-9 obtained from the NCC Herbal Apartment in connection with work of Accused as a lift operator and his signature is marked as Ex.P9(a).
24. In the Cross-examination, he has admitted the FIR registered as per Ex.P-8, time of receiving Complaint 15 Spl.C.C. 539/2018 is mentioned as 7 PM. He did not enquire about the grand parents of the Victim when he visited the Spot at the time of Mahazar. He was also not obtained any CCTV footage from the Manager of the Apartment. He has denied the installation of CCTV Camera near the lift to the floor of 10 feet from the lift in front of it a CCTV Camera has been installed. He has also stated that the capacity of taking CCTV footage from the distance of 100 feet appears on the company of Mega fixel. He has also not admitted that the CCTV footage for the distance of 50 meters can be taken from the Mega fixel. He do not know the capacity of distance of taking CCTV footage, if Mega fixel fixed at in the flat.
25. He has further denied the Statement of the witnesses not recorded by him and not obtained any documents relating to the employment of the Accused. He did not examine the witnesses, who were present near the Swimming pool, for the reason that the alleged incident had taken place inside the lift. He has denied a 16 Spl.C.C. 539/2018 false Chargesheet has been filed against the Accused on the say of the Complainant.
26. I have perused the evidence of the Victim, her parents and other independent witnesses along with Police witnesses. The important point made out from the evidence of the parents of the Victim is that after the alleged incident, the Victim did not inform them with regard to the alleged incident, even after they called her to home and talked many times from their respective working places. Therefore, doubt will certainly arose regarding occurrence of incident. Because, if really the alleged incident had taken place on the Victim in the morning at about 10.30 a.m., while she was going to Swimming pool by wearing Swimming dress in the lift, why she did not inform her parents immediately or when they called her during afternoon, without waiting till 10.30 pm. Another important point is though the Complainant said that seizure of CCTV footage why the same has not been produced by the 17 Spl.C.C. 539/2018 Investigating Officer before the Court. Further the grand parents of the Victim were also resided in the same flat along with her, but she did not inform them also, for the best reasons known to her.
27. The most important point is that the Mahazar said to be conducted at the spot on 30/05/2018 in between 10 to 10.30 a.m. where as the Complaint has been registered at about 5 p.m. on the same day. Therefore, the timings of the Mahazar shown in Ex.P-2 implies that it was drawn before registering of FIR, it certainly gives scope for doubts as to occurrence of the alleged Sexual Assault committed by the Accused on the minor Victim, while repairing the lift in the morning. Further, the Mother of the Victim on the same day saw two other persons from the same Company who were came to Flat for repairing the lift.
28. Therefore, after considering the above important points as pointed out, I come to the 18 Spl.C.C. 539/2018 conclusion that the Prosecution has failed to prove the alleged Sexual Assault committed by the Accused by way of touching the chest of the Victim while she was going in the Swimming dress to the Swimming pool on the ground floor in the lift while he was repairing the lift, punishable under Section 7 R/w 8 of POCSO Act, 2012. Hence, I answer point No.1 in the Negative .
17. Point No.2: In view of my above discussion, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. Accused Bhupathi K S/o R. Karnakaran is hereby acquitted for offences punishable under Section 7 R/w 8 of POCSO Act, 2012.
The bail bonds executed by the Accused earlier stands canceled.19
Spl.C.C. 539/2018 The property seized by the Investigating Officer in this case, if any is ordered to be destroyed as worthless and useless, after completion of Appeal period.
(Dictated to the Judgement writer, transcript and computerized by her, corrected, signed and then pronounced by me in the open Court today on 3rd day of February, 2020.) (S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.
ANNEXURE
1) List of witnesses examined for the Prosecution PW.1 Pani Sharma PW.2 Victim PW.3 Sunaina PW.4 Anand PW.5 Dr. Suresh V. PW.6 Raghavendra Raju PW.7 Anith Kumar PW.8 Prashila B.S. PW.9 Srinivasa T. 20 Spl.C.C. 539/2018
2) List of documents marked for the Prosecutio Ex.P1 Complaint Ex.P1(a) Signature of Victim-PW1 Ex.P2 Mahazar Ex.P2(a) Signature of Victim -PW1 Ex.P2(b) Signature of Victim -PW6 Ex.P2(c) Signature of Victim -PW9 Ex.P3 164 Cr.P.C Statement of Victim Ex.P4 Appointment Letter Ex.P4(a) Signature of Victim -PW9 Ex.P5 Medical Certificate of Accused Ex.P5(a) Signature of Victim -PW5 Ex.P6 Letter Ex.P6(a) Signature of Victim -PW9 Ex.P7 Report Ex.P7(a) Signature of Victim -PW7 Ex.P7(b) Signature of Victim -PW8 Ex.P8 FIR Ex.P8(a) Signature of PW-8 Ex.P9 Work Order Ex.P9(a) Signature of PW-9
4) List of witnesses examined for the Accused
- NIL -21
Spl.C.C. 539/2018
5) List of documents marked for the Accused
- NIL -
6) List of Material Objects marked for the Accused
- NIL -
(S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.
*** 22 Spl.C.C. 539/2018 Judgment pronounced in the open court, operative portion of which reads as under:-
ORDER Acting under Section 235(1) of Cr.P.C. Accused Bhupathi K S/o R. Karnakaran is hereby acquitted for offences punishable under Section 7 R/w 8 of POCSO Act, 2012.23
Spl.C.C. 539/2018 The bail bonds executed by the Accused earlier stands canceled.
The properties seized by the Investigating Officer in this case, if any is ordered to be destroyed as worthless and useless, after completion of Appeal period.
(S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Judge, Bangalore.
24 Spl.C.C. 539/2018