Bangalore District Court
State By Srirampura Police vs Shakthivelu on 26 April, 2018
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the 23rd day of April, 2018.
Present: SMT.YADAV VANAMALA ANANDRAO., B.Com. LL.B.[Spl.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO.389/2017
COMPLAINANT: State by Srirampura Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Shakthivelu,
Son of Madesh,
Aged 36 Years,
Residing at No.110, 4th Cross, Gokul,
Mathikere, Yeshwanthapura,
Bangalore.
[By Advocate Sri. G.Desu Reddy]
1. Date of commission of offence From 2.2.2017 to 20.3.2017
2. Date of report of occurrence of 3.5.2017
the offence
3. Date of arrest of accused 3.5.2017
4. Date of release of accused Since the date of his arrest i..e,
from 3.5.2017, the accused is in
the judicial custody.
5. Date of commencement of 16.10.2017
evidence
2 Spl CC No.389/2017
6. Date of closing of evidence 17.3.2018
7. Name of the complainant Smt.Velli, complainant as well
as the mother of the victim girls
8. Offences complained of Sec.6 of POCSO Act, 2012 r/w
Sec.376(1) of IPC, Sec.10 of
POCSO Act, 2012, Sec. 12 of
POCSO Act, 2012, Secs. 354
and 506 of IPC.
9, Opinion of the Judge The accused is convicted and
sentenced, as per the final
orders.
JUDGEMENT
The Police Inspector, Srirampura police station has filed charge-sheet against the accused for the offences punishable under Secs. 376, 354 and 506 of IPC and Secs.6, 8, 10 and 12 of POCSO Act, 2012.
2. Gist of the prosecution case is that:
The accused, being the step father of the victim girls aged 12 years and 11 years respectively, 2 months prior to 3.5.2017 at about 4 P.M., when CW2/victim girl came out of the school, the accused told her that her mother was in the house and asked him to bring her [Cw2/victim girl] and by saying so, he took CW2/victim girl in his two wheelers to her house and when CW2/victim girl entered the house and asked as to where her mother was, the accused told CW2/victim girl that, her mother has gone to sell ambli [eatables] and took CW2/victim girl to a room and made her to forcibly remove her uniform and when CW2/victim girl tried to 3 Spl CC No.389/2017 shout, the accused gagged her mouth by clothes and tied her hands and committed rape on her, knowing that she was a small child and his step daughter. Again one month prior to 3.5.2017 when CW1/complainant fell ill and she was sleeping, the accused gave her tables and when CW1 was sleeping, and in the midnight, CW2/victim girl screamed loudly; CW3/victim girl woke up and tried to wake up CW1, but, CW1 did not wake up, and saw that, the accused removed his pant and slept on CW2/victim girl and by seeing it, CW3/victim girl got frightened and slept; and that the accused committed aggravated penetrative sexual assault/rape on CW2/victim girl, knowingly that she was minor who was aged 12 years and his step-daughter and that due to fear of killing her moher-CW1 and sister-CW2, she [CW2/victim girl] did not disclosed the incident to anybody; and that after 5 to 6 days of the above stated incident, the accused took CW3/victim girl to the terrace of the house and scratched her left breasts with his nails and outraged her modesty, and committed aggravated sexual assault on CW3/victim girl who was a child of 11 years and his step-daughter and the accused with a criminal intimidation, threatened CW2/victim girl of killing CW1 and CW3/victim girl, if she discloses the said incidents to anybody and also threatened CW3/victim girl that , he would kill her mother-CW1 and her sister-CW2/victim girl, if she discloses the said act committed by him to anybody. A case was registered on the basis of the complaint lodged by the complainant/mother of the victim girls in Cr.No.101/2017. During the course of investigation, the accused was arrested and he was taken to the judicial custody. Since then the accused is in the judicial custody.4 Spl CC No.389/2017
3. After completing the investigation and collecting the materials, the Investigating Officer has filed charge-sheet against the accused. Cognizance was taken. Office was directed to register the case in Spl.CC Register with due conversion of CIS Cr.No.409/2017.
4. Initially this case was made over to this court CCH:55. As per the Notification, No. ADM-I (A)/ 614/2017, of the Office of the city Civil Court, Bengaluru, dated:4.8.2017 with effect from the afternoon of 5.8.2017, now, the case is before this Child Friendly Court, Bengaluru Urban District, for disposal.
5. The accused was represented by the counsel of his choice. After production of the accused, the copies of the prosecution papers [charge-sheet] was furnished to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
6. After hearing the learned Public Prosecutor and the learned counsel for the accused, this court has framed the Charge on 6.9.2017 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed the trial.
7. To prove the case, the prosecution has examined PWs-1 and 16 witnesses, out of total 19 charge-sheet witnesses and placed reliance on Exs.P1 to P19 documents and got marked the Material Objects as MOs-1 to 4. After completion of the evidence of the prosecution witnesses, the statement of the accused under 5 Spl CC No.389/2017 Sec.313 of Cr.P.C has been recorded. He has denied the incriminating evidence available against him. But, he has not adduced defence evidence on his behalf.
8. Heard the arguments of the learned Public Prosecutor and the learned counsel for the accused. Perused the oral and documentary evidence and the record on hand. Following Points are formulated for consideration:
1. Whether the prosecution has proved beyond all reasonable doubt, that the accused, being the step father of the victim girls aged about 12 years and 11 years respectively, that 2 months prior to 3.5.2017 at about 4 P.M., when CW2/victim girl who was aged about 12 years, came out of the school, the accused by giving her impression that, her mother/CW1 asked him to bring her to home, he brought her to home on his two wheelers and when entered the house, she asked for her mother and the accused told the victim girl/ CW2 that, her mother has gone to sell ambli [eatables] and took CW2/victim girl to a room and made her forcibly to remove her uniform and when CW2/victim girl tried to shout, the accused gagged her mouth by clothes and tied her hands and committed aggravated penetrative sexual assault/rape on her, knowingly that she was a small child and his step daughter. Again one month prior to 3.5.2017 when CW1/complainant was sleeping due to ill-health the accused gave her tablets and when CW1 was sleeping, in the midnight, when CW2/victim girl screamed loudly, CW3/victim girl woke up and tried to wake up CW1, but, CW1 did not wake up, at that time, CW3/victim girl saw that, the accused removed his pant and slept on CW2/victim girl, and by seeing it, CW3/victim girl got frightened and slept and on that day, also the accused committed aggravated penetrative sexual assault/ rape on CW2/victim girl, knowingly that she was a minor and she was his step daughter, thereby the accused have 6 Spl CC No.389/2017 committed the offence punishable under Sec. 6 of POCSO Act, 2012 r/w Sec.376(1) of IPC?
2) Whether the prosecution has proved beyond all reasonable doubt that, accused after 5 to 6 days of the above stated alleged incident, he took CW3/victim girl to the terrace of her house and scratched her left breasts with his nails and committed aggravated sexual assault on CW3/victim girl knowingly that she was a child of 11 years and his step-daughter, thereby, the accused has committed aggravated sexual assault on CW3/victim girl for the offence punishable under Sec.10 of POCSO Act, 2012 ?
3) Whether the prosecution has proved beyond all reasonable doubt that, the accused after 5 to 6 days of the above stated alleged incident, took CW3/victim girl to the terrace of her house and scratched her left breasts with his nails, knowingly that she was a child of 11 years and his step-daughter and outraged the modesty of CW3/victim girl, and thereby you the accused have committed an offence punishable under Sec.354 of IPC?
4) Whether the prosecution has proved beyond all reasonable doubt that, the accused criminally intimated by threatening CW2/victim girl of killing CW1 and CW3/victim girl, if she discloses the said offensive act on her person committed by the accused and also by threatening CW3/victim girl that, he would kill her mother/CW1 and her sister-CW2/victim girl, if she would disclose the offensive act committed by the accused on CW2/victim girl, to anybody, thereby the accused have committed an offence punishable under Sec.506 of IPC?
5) What Order?
9. My findings on the above points are as under:
Point Nos.1 to 4: In the AFFIRMATIVE Point No.5: As per the final order, for the following:7 Spl CC No.389/2017
REASONS
10. POINT NOS.1 TO 4:- As these Points are inter-linked to each other, they are taken up for common discussion to avoid repetition of facts. It is the specific case of the prosecution that, "The accused, being the step father of the victim girls aged 12 years and 11 years respectively, 2 months prior to 3.5.2017 at about 4 P.M., when CW2/victim girl came out of the school, the accused told her that her mother was in the house and asked him to bring her [Cw2/victim girl] and by saying so, he took CW2/victim girl in his two wheelers to her house and when CW2/victim girl entered the house and asked as to where her mother was, the accused told CW2/victim girl that, her mother has gone to sell ambli [eatables] and took CW2/victim girl to a room and made her to forcibly remove her uniform and when CW2/victim girl tried to shout, the accused gagged her mouth by clothes and tied her hands and committed rape on her, knowing that she was a small child and his step daughter. Again one month prior to 3.5.2017 when CW1/complainant was sleeping due to ill-health the accused gave her tablets and when CW1 was sleeping, in the midnight, when CW2/victim girl screamed loudly, CW3/victim girl woke up and tried to make CW1 alert, but, CW1 did not wake up, at that time, CW3/victim girl saw that,, the accused removed his pant and slept on CW2/victim girl, and by seeing it, CW3/victim girl got frightened and slept and that, the accused committed aggravated penetrative sexual assault/rape on CW2/victim girl, knowingly that she was minor aged about 12 years and his step-daughter; and due to fear of killing her mother-CW1, and sister-CW3, she [CW2/victim girl] did not disclosed the incident to anybody. After 8 Spl CC No.389/2017 5 to 6 days of the above stated alleged incident, the accused took CW3/victim girl to the terrace of her house and scratched her left breasts with his nails and outraged her modesty, and the accused committed aggravated sexual assault on CW3/victim girl knowingly that she was a child of 11 years and his step-daughter; The accused criminally intimidated CW2/victim girl of killing CW1 and CW3/victim girl, if she discloses the rape committed on her to anybody; and also threatened CW3/victim girl that, he would kill her mother-CW1 and her sister-CW2/victim girl, if she disclose the said act committed by the accused on CW2/victim girl to anybody.".
11. The prosecution has to discharge its initial burden and that, only when it is discharged, then the presumptions under Sec.29 of POCSO Act, 2012 [presumption as to certain offences] and Sec. 30 of POCSO Act, 2012 [presumption of culpable mental state of the accused] can be raised. Therefore, whether the prosecution is able to discharge its burden is a question to be considered on the basis of the available evidence on record. If the prosecution is able to discharge the burden, then it would shifts on the accused to rebut these presumptions and establish his defence version of his innocence and his false implication and that he has not committed any alleged offences against the victim girls/children's etc. If it is established by rebutting the presumptions under Secs. 29 and 30 of POCSO Act, then, he [accused] is entitled for acquittal. Hence, with due consideration of legal aspects, it is proceeded with to evaluate the evidence led by the prosecution whether it is able to prove the guilt of the 9 Spl CC No.389/2017 accused, so as to attract the said penal provisions, for conviction of the accused.
12. The admitted facts are that, the complainant is none other than the wife of the accused and the accused is the step-father of the victim girls/CWs-1 and 2 who were aged about 12 years and 11 years respectively, at the time of the alleged incident. It is brought on record by the Investigating Officer and also during the course of evidence that, CWs-2 and 3 were her [CW1] children born to her [complainant] from her first husband by name Perumal, as her marriage with him was taken place about 14 years back. Her 1st husband died about 11 years back i.e., when she [CW1] was pregnant of the 2nd child i..e, CW3. Thereafter, she [CW1] married the accused about 10 years back. They [CW1 and the accused] were the natives of Paaperpete. After her [CW1] marriage with him [accused] she came to Bangalore and resided with him along with her two daughters i..e, CWs-2 and 3/victim girls at Srirampura, Bangalore. During the time of incident, the accused was residing in Bangalore. Even the accused was also married to some lady prior to her [CW1] marriage and she [first wife of the accused] was also residing in Paaperpete. The accused was doing coolie work and she [CW1] was doing work in a paper shop and CWs-2 and 3/victim girl were going to school at Srirampuram and they [CW1, accused and CWs-2 and 3] lived in a house at Bangalore.
10 Spl CC No.389/201713. It is pertinent to note that, the very victim girls-PWs-1 and 2 in their chief examinations both were tested about their capacity to know the things and gave rational answers and considering that, they are capable of giving rational answers, they are permitted to depose. However, their conduct and behaviour have to be duly considered by the court with due care and caution in this case under POCSO Act. During the chief examination, the learned Public Prosecutor tried to bring on record the specific case of the prosecution. Both these victim girls have specifically spoken to about their relationship with their mother-PW3 and also the accused as their step-father and their genital father was died and their mother-PW3 married the accused and they [PW3 and the accused] were doing paper selling work and they both[PW3 and the accused] were residing at Bangalore along with these victim girls. PWs-1 and 2 were studying at Gandhi Vidya Sagar School at Bengaluru. PW1 was studied 6th standard and PW2 was studied 5th standard in the said school and residing in a house. They have turned hostile stating that, the accused was looking after them well and the accused did not do anything on the person of PWs-1 and 2. But, they [PWs-1 and 3] have further stated that, there was quarrel between PW3 and the accused. They [PWs-1 and 2] have spoken about the accused that, he was looking after their school expenses and that, he had not committed any sexual assault on them and that PW3 has not filed any complaint, but, the complaint was lodged by the neighbours. PWs-1 and 2 were not taken to the hospital for medical examination; nor they gave any statement before the Learned Magistrate under Sec.164 of Cr.P.C. According to them, it was as per the say of the police. The 11 Spl CC No.389/2017 Statements given by PWs-1 and 2 before the Learned Magistrate under Sec.164 of Cr.P.C, are at Ex.P5 and Ex.P6 respectively. Thus, these victim girls [PW1 and PW2] have turned hostile to the prosecution case. It is pertinent to note that, during the chief examination, of PW2, she did not state what was the reason for lodging the complaint, as spoken by PW1 that, there was quarrel between her mother [PW3] and the accused in connection with preparation of food. But, this witness [PW2] never spoken in that regard. Even she has stated that, no complaint was lodged by PW3 and it was lodged by the neighbours. But, after getting these witnesses [PWs-1 and 2] declared as hostile witnesses with due permission of this court, the learned Public Prosecutor has made efforts to bring on record about the alleged guilt of the accused by putting suggestions that, the accused has committed sexual assault on PWs-1 and 2/victim girls in the manner, as per the prosecution case. But, they[PWs-1 and 2] have not given admission in that regard. But, their conduct being children and manner in which they are giving evidence are material to be taken into account.
14. PW3 is the mother of the victim girls, has specifically stated about the relationship of her children and the accused as referred above. She is the second wife of the accused, as the accused had a wife alive residing in his native place at Papperpet and that after her [PW3] marriage with the accused, she along with PWs-1 and 2, came with the accused and residing at Bangalore and PWs-1 and 2 were going to Tamil medium school at Srirampura, Bangalore, while the accused was doing the work in paper 12 Spl CC No.389/2017 godown and this witness was doing work in a paper shop and she has specifically stated that, the accused did not do anything on the person of PWs-1 and 2 and PWs-1 and 2 have not complained anything about the accused nor the accused has committed any sexual assault or sexual harassment on PWs-1 and 2. She has spoken that, there was quarrel between herself and the accused with regard to preparation of food and the neighbours intimated to the police and the police came to their house and took her signatures. It is the complainant which is marked at Ex.P1, but, she did not spoken about the contents of Ex.P1, except stating that, the police took her signature. Even she has not identified the Spot Mahazr-Ex.P2, though she has identified the signature on the spot mahazar as per Ex.P2(a). She showed ignorance about the contents of Ex.P2, but, she has stated that, for conducting mahazar police came to her house. In connection with taking the victim girls to the hospital, she has spoken that, as both the victim girls [PWs-1 and 2] were not keeping well, hence, she alone took them to the hospital, but, the police did not come to the hospital. But, she [PW3] has identified her signatures on Medical Reports at Exs.P3 and P4. But, on perusal of the entire evidence of this PW3, she has not specifically denied about the process undertaken by the Investigating Officer, after filing of the complaint regarding spot mahazar, taking the victim girls[PWs-1 and 2] for medical examination and for taking them for recording the statements before the Learned Magistrate and also the competent lady police officer and SJPU. However, she [PW3] gave certain admissions which are supporting the prosecution case and to that extent, her 13 Spl CC No.389/2017 evidence has to be relied upon, which is going to be considered in the subsequent discussions.
15. The prosecution has examined independent and circumstantial witnesses, who are the near residents of the house of the complainant/PW3:
CW4-Prema deposed as PW5, a neighbour of PW3 and informed the incident by PW3 and she in turn told it to CW5-Vijayalakshmi who deposed as PW6. This [PW6] witness is relative of PW5 and came along with CW6 and CW7[ CW6 the owner of PW6 and mother of CW7] near to the house of PW3. CW6-Manjula deposed as PW7. They have stated on oath that, the complainant/PW3 was their neighbour and the victim girls are the children of PW3. The accused used to come to the house of the complainant once in 2 to 3 days. They [PWs-5 to 7] have identified the accused. During the year 2017, the age of CW2/victim girl was 10-11 years and the age of CW3/victim girl was 8 to 9 years. They both were going to school. But they have turned hostile by deposing that, the police have not taken any statements from them. From their statements given under Sec.161 of Cr.P.C that, they came to know about the incident from PW1 to PW3. But, they denied it during their cross-examination by the learned Public Prosecutor. After declaring these witnesses as hostile with due permission of the court, the learned Public Prosecutor subjected them for cross-examination by putting suggestions that, the accused had committed sexual assault on PW1 and sexually harassed PW2 and that, when these witnesses enquired with PWs-1 and 2, they have not stated anything about 14 Spl CC No.389/2017 the accused that, he has done the said sexual act. These witnesses have also denied that, at that time, they [PWs-5 to 7] decided to lodge the complaint and they got typed the complaint and CW1 went to the police station and lodged the complaint. PWs-5 to 7 have denied their statement given before the Investigating Officer as per Exs.P9, P10 and P11 respectively. Thus, these witnesses have totally turned hostile to the prosecution case and not supported the case of the prosecution that, the accused had committed sexual assault on PW1 and sexual harassment on PW2. Thus, the evidence of these PWs-5 to 7 do not come to the aid of the prosecution about the incident as their evidence is hearsay evidence. It cannot fatal to the prosecution case, as other material and circumstantial evidence are supporting the prosecution case.
16. The prosecution has examined the mahazar witness- CW9-Babu as PW4. He has deposed that, since 7 to 8 months back, when he went to the Sriramapuram police station, he had signed on a written Mahazar as per Ex.p2. He has identified his signature as per Ex.P2(d). He was not called to the spot. The spot mahazar was not conducted in his presence. He do not know the contents of Ex.P2. After declaring this witness as hostile with due permission of this court, the learned Public Prosecutor subjected him for cross-examination. He has denied that, he has given statement before the Investigating Officer as per Ex.P8. Thus, this witness also turned hostile to the prosecution case and not supported the prosecution case. But, PW3 has admitted that the police [Investigating Officer] came to the spot after lodging the 15 Spl CC No.389/2017 complaint. It was corroborated the version of Investigating Officer [PW16], the relevant portion of which is reproduced as under:
"¢£ÁAPÀB 04.05.2017 gÀAzÀÄ ªÀÄzsÁåºÀß 1.30 jAzÀ 2.15 UÀAmÉAiÀÄ ªÀÄzÀsåzÀ CªÀ¢Aü iÀÄ°è PÀÊvÀå £ÀqÉzÀ ¸ÀܼÀPÉÌ ¨sÉÃnPÉÆlÄÖ ZÁ¸Á-8 ªÀÄvÀÄÛ 9 gÀªÀgÀ£ÀÄß ¸ÀܼÀPÉÌ §gÀªÀiÁrPÀÉÆAqÀÄ, ¥Áæ¸Á-1 jAzÀ 3 gÀªÀgÀ vÉÆÃj¹zÀ ¸ÀܼÀªÀ£ÀÄß ¥Àj²Ã°¹ ¤¦-2 gÀAvÉ ªÀĺÀdgï ªÀiÁr, N¢ w½¹, ¸ÀܼÀzÀ°èAiÉÄà CªÀgÉ®ègÀ ¸À»UÀ¼À£ÀÄß ¥ÀqÉ¢gÀÄvÉÛãÀÉ. ¤¦-2 gÀ°ègÀĪÀ ¸ÁQëAiÀÄÄ UÀÄgÀÄw¹zÀÄÝ, CzÀ£ÀÄß ¤¦-2(J¥sï) CAvÀ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ."
The cross-examination of this witness [PW16] is only denial which is not disproving the fact of mahazar-Ex.P2. So, hostile evidence of PW4 does not fatal to the prosecution case, as it has proved through PWs- 3 and 16 and Ex.P2.
17. The prosecution has brought on record the evidence of CW10-the Head Mistress of Gandhi Vidya School, Srirampura who deposed as PW12, with reference to the issuance of certificates of date of birth of the victim girls-PWs-1 and 2, as she received Requisition from the Investigating Officer of the complainant-Srirampura police station. This witness on verifying the school records of PWs-1 and 2 on 1.6.2017 has issued separate Certificates at Ex.P14 pertaining to PW1 and Ex.P15 pertaining to PW2 and she [PW12] identified her signatures at Exs.P14(a) and P15(a). There is no serious dispute about the date of birth of the victim girls as noted in Exs.P14 and P15. The only suggestion to put to this witness is that, the police have not issued any requisition to issue Exs.P14 and P15, but, she has specifically denied. However, the said documents are material school documents to support the age of the victim girls [PWs-1 and 2]. As 16 Spl CC No.389/2017 per Ex.P14, the date of birth of PW1 was 6.9.2005 and as per Ex.P15, the date of birth of PW2 was 30.8.2006. However, as on the date of the incident, certainly both PWs-1 and 2 [victim girls] were minors, less than 12 years. Hence, much discussion is not necessary.
18. CW13-Radha- WHC of complainant police station who deposed as PW8 and her evidence is relevant in connection with taking the victim girls as per the direction of the Investigating Officer with his requisition to KC General Hospital, along with their mother-PW3 for their [PWs-1 and 2] medical examination and also after completion of medical examination, she [PW8] collected the sealed four articles and brought back and produced before the Investigating Officer-PW16[CW19] and submitted Report as per Ex.P12 [Ex.P12(a) is her signature]. What is revealed from the cross-examination of this witness is that, it is mere denial that, she did not take the victim girls to the hospital and did not report in that regard and she was deposing to help the Investigating Officer etc. She has specifically denied the same. But, it is the duty performed by this witness as per the directions of the Investigating Officer and she assisted in the investigation process.
19. PWs-1 to 3 have not specifically denied regarding the examination of PWs-1 and 2 in the hospital. PW3 who is the mother of the victim girls has specifically admitted that, both PWs-1 and 2 were taken to the hospital. In this connection, the evidence of Doctor Amrutha Prabhu-CW11/ PW13 who examined these minor victim girls, has specifically deposed that, the WHC of the 17 Spl CC No.389/2017 complainant-Srirampura police station i..e, PW8 placed the victim girls for medical examination. Hence, these factors are supporting the prosecution case regarding taking of the victim girls to the hospital for medical examination along with their mother-PW3 with requisition of PW16 i.e., the Investigating Officer with the history of sexual assault, by their step-father-Shakthi Velu i..e, the accused. Hence, the evidence of PW8 is relevant and believable, as her evidence was not rebutted, to the effect that, why she speaks false and what are those circumstances that she would tell lie. It is the duty casted upon her [PW8] to assist the Investigating Officer. Her [PW8] evidence cannot be discarded. Hence, the fact of taking the victim girls for medical examination as per the direction of PW16, with requisition to KC General hospital and placing them before the Doctor-PW13 with reference to the sexual assault by the accused, is duly proved. Hence, the evidence in the form of denial by PWs-1 to 3 that the victim girls were not taken to the hospital with the history of sexual assault by the accused and the say of mother-PW3 that, she took PWs-1 and 2 to the hospital as they fell ill etc., do not fatal to the prosecution case. It seems that the mother[PW3] being the wife of the accused might have turned hostile to help the accused which is as suggestion by the learned Public Prosecutor for prosecution in this regard.
20. It is relevant to discuss at this stage about the medical evidence, as the prosecution has brought on record the medical evidence, through:
(a) CW11-Dr.Amrutha Prabhu deposed as PW13. She has stated about the medical examination of the victim girls [PWs-1 18 Spl CC No.389/2017 and 2] on 3.5.2017. They were placed before PW13 by the Investigating Officer [PW16] through PW8, along with the mother [PW3] of the victim girls with the history of sexual assault, by their step-father[accused]. On examining PW1/victim girl, she found that, hymen was not intact. Accordingly, she has issued the Medical Report in respect of PW1/victim girl as per Ex.P3. She has collected the vaginal smear, vaginal swab, cervical smear and swab of PW1/victim girl at MOs-1 to 4.
She [PW13] has also examined PW2/victim girl. PW2 has stated before her, that about one week later of the alleged incident on her sister/PW1/victim girl by the accused, her step-father [accused] took her [Pw2] to the terrace of the house and fondled her breasts. PW13 deposed that, on external examination of PW2, she was alert, conscious and co-operative. No external injury marks found. On examination of genetelia parts, no injuries were found. Hymen was intact. Accordingly, she has issued the MLC Extract copy as per Ex.P4 in respect of the victim girl/PW2.
In her [PW13] cross-examination she has denied that, she has not examined the victim girls [PWs-1 and 2] and that she has issued false medical certificates in respect of the victim girls, which are the denial forms. No rebuttal evidence placed by defence to the effect that, why she [PW13] speaks false, what interest she has in that regard. So, the version of PW13 supported by the contents of Exs.P3 and P4 is proof of her medical examination on PWs-1 and 2 in connection with aggravated penetrative sexual assault on 19 Spl CC No.389/2017 PW1 and sexual assault on PW2 is proved. History disclosed in Exs.P3 and P4 are to be believed as true and proof of the fact stated therein.
(b) Another additional witness Dr.Chandrashekar-FSL Officer deposed as PW14, regarding the subjecting the articles received by him from the Investigating Officer in this case, has issued the Report with his opinion. He [PW14] has opined that, (1) Seminal stain was not detected in item Nos. 1 and 4 (2) Spermatozoa were not detected in item Nos. 2 and 3 Accordingly he [PW14] has issued FSL Report as per Ex.P17. He has identified MOs-1 to 4. There is no cross-examination to this witness since, the opinion is favouring the accused, as it do not disclose seminal stains or spermatozoa on the articles placed before him [PW14], as referred above at Sl.No.1 and 2. However, the evidence of the said witness [PW14] having corroboration, it has to be evaluated and considered.
(c) Another medical witness is CW12- Dr.Pradeep Kumar, who deposed as PW15 that, he examined the accused brought by the Head constable and Police constable of the complainant- Srirampura police station. As per the requisition of the Investigating Officer [PW16], he [PW15] examined the accused at 2.30 P.M., and opined that, there was nothing to suggest that the person is incapable of performing sexual intercourse. Accordingly, he has given the Medical Certificate in respect of the accused as per Ex.P18. There is no cross-examination to this 20 Spl CC No.389/2017 witness. Potency testification by PW15 on the accused is not in dispute. It is proved fact, as to the potentiality of the accused.
21. The official witness CW16 Mohankumar Nayak- Head constable of Srirampura police station, deposed as PW11 regarding apprehension of the accused on 3.5.2017 as per the instructions and directions by the Investigating Officer. He along with CW17-Police constable went to Mathikere Gokul Layout, 4th Cross, and apprehended the accused at 7 P.M., and enquired and getting confirmed that, he was the person, accused in this case and took him and placed before the Investigating Officer [CW19/PW16] at 8 P.M., [since the accused was not brought from the judicial custody, the learned counsel for the accused was having no objections for identification, hence, there is no dispute regarding identification of the accused]. During the cross- examination by the learned counsel for the accused, he[Pw11] denied the suggestion that, he did not go to the said place; nor he took the custody of the accused. Mere denial does not constitute the defence proved. Therefore, much discussion is not necessary, as it is proved fact, as per the directions of the Investigating Officer, during investigation, the accused was apprehended by PW11 and CW17 and placed before the Investigating Officer and Investigating Officer arrested the accused by following the due procedure and subjected him to enquiry and recorded the voluntary statement of the accused and then subjected him to judicial custody. These facts which are part of their duty have been spoken to by the Investigating Officer-PW16. Thus, the 21 Spl CC No.389/2017 apprehending of the accused was with regard to his said offensive acts on PWs-1 and 2 only and it is proved.
22. Another official witness CW15-Manjula as PW9, deposed about her duty that, she was accompanying PWs-1 and 2 along with their mother PW3 as per the direction of the Investigating Officer [PW16] on 4.5.2017 and it was for spot mahazar and she and went to the house No.106, 3rd Floor, in the building located in 3rd Cross, Bhashyamnagar, Srirampura, Bangalore and mahazar was conducted as per Ex.P2 and she identified her signature as per Ex.P2(e) and her evidence is proof of taking PWs-1 and 2 along with their mother/PW3 to the said spot of incident. It is pertinent to note that, PWs-1 to 3 have denied that, spot mahazar-Ex.P2 was conducted. However, PW3 has during the cross-examination by the learned Public Prosecutor after declaring as hostile witness, she deposed that, the police came to the spot for conducting mahazar etc. What is revealed from the cross-examination of PW9 is, the testing of awareness of boundaries of place of incident. Of-course, PW9 stated that, she cannot say the boundaries of the spot. It is further suggested that, the said witness [PW9] did not go to the spot, as security (¨ÉAUÁªÀ®Ä) to PWs-1 and 2 and she has not put her signature on Ex.P2 at the spot, etc. But, she has denied these suggestions. She has done it as per the directions of the Investigating Officer [PW16]. PW16 has deposed in this regard specifically the presence of PWs-1 to 3 through PW9 at the place of incident. Her [Pw9] evidence with reference to taking the victim girls along with their 22 Spl CC No.389/2017 mother/complainant/PW3 to the spot of incident at the time of conducting of mahazar is relevant and it is held to be true that, the Investigating Officer has conducted the spot mahazar at the place of incident during which, PWs-1 to 3 were also present who were brought by PW9 at the spot while conducting the spot mahazar as per Ex.P2. Apart from this, PWs-1 to 3 have admitted their signatures on the said spot mahazar [Ex.P2] [However, taking of signatures of victim girls is considered to be immaterial, as they are minors]. However, PW3 has admitted her signature on Ex.P2-Spot Mahazar conducting of mahazar at the spot. But, she [Pw3] pleaded ignorance about the contents of Ex.P2. PW3 deposed that, she put her signature on Ex.P2-Spot Mahazar in the police station and she does not know the contents of the same. Because of the reason as held above that to help her [PW3] husband-accused, she [PW3] turned hostile, her[PW3] evidence is considered that, she avoided to speak the truth in this regard about Ex.P2.
23. But, PW9 and also the Investigating Officer [PW16] who have conducted the spot mahazar as per Ex.P2, have specifically stated that, on that date i.e., on 4.5.2017, by calling upon the witnesses to the spot and conducted spot mahazar and the victim girls have showed respective place of incident and it was carried out from 1.30 P.M., to 2.15 P.M. What was the interest or why the Investigating Officer and PW9 speak false in connection with the duty casted upon them during the investigation and to create a false case against the accused regarding place of incident. It is also settled law that, "If any rebuttal evidence or incriminating evidence as against the Investigating Officer and the assisting staffs 23 Spl CC No.389/2017 of the police were not brought on record, the prosecution case has to be believed". Therefore, with reference to spot mahazar conducted by the Investigating Officer-PW16, as per Ex.P2-Spot Mahazar, is to be believed, along with the contents of the same. It is therefore relevant to reproduce the admissions of PW3 regarding conducting of spot mahazar-Ex.P2.
"¥ÉÇð¸ÀÀgÀÄ ¸ÀܼÀ ªÀĺÀdgïUÁV £ÀªÀÄä ªÀÄ£ÉUÉ §A¢zÀÝgÀÄ."
She [PW3] has admitted that, after filing of the complaint, on the next day, the police came to the spot and conducted spot mahazar as per Ex.P2 and taken her signature thereon. But, she has stated that, she do not know why her signature was taken on Ex.P2. Thus, it is also her admission regarding conducting of spot mahazar-Ex.P2, though she denied specifically the process of mahazar conducted as per Ex.P2. So, admitted facts need not be proved. On this count also, this circumstantial evidence regarding the spot mahazar in connection with the place of incident where the sexual assault and sexual harassment caused by the accused on PWs-1 and 2 respectively were occurred, are held to be proved by the prosecution, beyond doubt. .
24. Another official witness is CW14-Appasab Vaali who deposed as PW10, who is one of the police personnel assisted the Investigating Officer during the investigation process, that on 5.7.2017, as per the instructions of the Investigating Officer [PW16], he collected the 4 sealed articles and handed over it to the RSFL, Mysore and with Acknowledgement returned back to Bangalore and placed it before the Investigating Officer[PW16].
24 Spl CC No.389/2017The Acknowledgement is at Ex.P13. There is no cross-examination in this connection. The duty undertaken by PW10 for handing over of the four sealed articles to the said FSL office was for chemical analysis, and that by receiving the Acknowledgement from the FSL Office, he produced the same before the Investigating Officer[PW16]. In this connection, PW16 deposed that, he appointed this witness [PW10] for the said duty, as part of investigation for collection of four sealed articles. Hence, much discussion is not necessary.
25. CW19-R.P.Anil- the then Police Inspector/Investigating Officer of the complainant- Srirampuram police station examined as PW16 deposed that, on 3.5.2017, at about 2.15 P.M., the complainant/PW3 came to the police station and lodge a written complaint[Ex.P1] and after receipt of the said complaint, he registered a case in Cr.No.101/2017 and FIR is as per Ex.P19. The complainant/PW3 had come to the police station along with PWs-1 and 2, at that time, he took their statements. He [PW16] explained that, as there was no woman police, and through his higher officers, he called upon CW18-Roopa Tembad-WPSI of Mahalakshmi Layout police station to the complainant police station. CW18 has done counseling of PWs-1 and 2 and recorded their statements. The said statements of PWs-1 and 2 are marked as Exs.P5(b) and P7 respectively. Thereafter, he [PW16]sent PWs-1 and 2 for medical examination. He deputed CWs-16 and 17 to trace out the accused, accordingly, on 3.5.2017, they apprehended the accused and placed before him and after following the due procedure, he arrested the accused. He 25 Spl CC No.389/2017 conducted spot mahazar as per Ex.P2. He sent PWs-1 and 2 to record their statements under Sec.164 of Cr.P.C, by the Learned Magistrate and their statements are as per Exs.P5 and P6 respectively. After completion of the investigation, he filed the charge-sheet against the accused.
26. At this stage, I would like to consider the conduct of PW3. It seems that, PW1 and PW2 tutored by their mother-PW3 who have turned hostile as to the contents of Exs.P5 and P6, stating that, they [PWs-1 and 2] gave such statements as per say of the police. It was not testified. Why the police tutored them [PWs-1 and 2] and what interest they had and to speak the illegal and immoral things, as basically the police wing is considered to be responsible and duty bound wing of the State and specifically for child rights protection and why they could create false case etc., are not explained. Evidence of minors [PWs-1 and 2] being tutored, and that it is the mother-PW3 deposed false to suit her purpose best known to her, to protect the accused instead of her children who are in acute need in all respects during their minority state. Justice warrants that, it shall be curtailed the violation of child right and provide protection by avoiding repetition of criminal acts.
27. It is material to note that, PWs-1 to 3 have avoided to admit the medical examination of PWs-1 and 2, who were subjected by the Investigating Officer during the investigation process placing them before the competent Doctor-PW13. But, it 26 Spl CC No.389/2017 is revealed from the evidence of PW1 at Page No.4, Para No.4, which is reproduced thus:
"¥ÀÉÆð¸ÀgÀÄ £À£ÀߣÀÄß D¸ÀàvÉæUÉ PÀgÀÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ. ¥ÀÉÆð¸ÀgÀÄ ªÀÄvÀÄÛ £À£Àß vÁ¬Ä D¸ÀàvÉæUÉ §A¢zÀÝgÀÄ".
However, she[PW1] says that, "she was not subjected for medical examination in the hospital", during the course of cross-examination by the learned Public Prosecutor. After considering her as hostile witness, her conduct in giving evidence is that, [relevant portion reproduced here]:
"CzÀ£ÀÄß KvÀPÁÌV ¸À» ªÀiÁrzÀÄÝ CAvÀ 2-3 ¸Áj PÉüÀ¯ÁV, CªÀ¼ÀÄ ¸ÀĪÀÄä¤zÀÄÞ , £ÀAvÀgÀ ¸À» ºÁPÀ®Ä ºÉýzÀÝPÉÌ ¸À» ªÀiÁrgÀÄvÉÛÃ£É CAvÀ ºÉüÀÄvÁÛ¼É."
DgÉÆæAiÀÄÄ CvÁåZÁgÀ J¸ÀVzÀ PÁgÀtPÁÌV PÉ.¹.d£ÀgÀ¯ï D¸ÀàvÉæUÉ £À£ÀߣÀÄß ªÀÄvÀÄÛ £À£Àß vÁ¬ÄAiÀÄ£ÀÄß ªÉåzÀÊQÃAiÀÄ vÀ¥Á¸ÀuÉUÁV PÀ¼ÀÄ»¸À¯ÁVvÀÄÛ JAzÀgÀÉ ¸ÁQëAiÀÄÄ D¸ÀàvÉæUÉ PÀ¼ÀÄ»¹zÀÝgÀÄ, KvÁPÁÌV PÀ¼ÀÄ»¹zÀÝgÀÄ CAvÀ UÉÆvÁÛUÀ°®è JAzÀÄ ºÉüÀÄvÁÛ¼É.."
It means PW1 has not denied her medical examination in connection with the sexual assault on her.
28. It is material to note that, with reference to the said evidence of PW1, which is not shaky and supporting the prosecution case that she was subjected to medical examination in connection with the sexual assault. There is no specific suggestion or explanation by the defence side. PW2 too also denied about the medical examination that was done during the course of investigation placing her before the doctor. Whereas her sister/PW1 has admitted that, this PW2 was also taken to the 27 Spl CC No.389/2017 hospital for medical examination. It is also material to note about the competent witness i..e, their mother-PW3 who deposed about the medical examination of the victim girls [PWs-1 and 2]. She deposed during the chief examination that, [relevant portion is reproduced hereunder]:
"£Á£Éà ¥Áæ¸Á-1 ªÀÄvÀÄÛ 2 gÀªÀgÀ£ÀÄß ºÀĵÀj¯Áè CAvÀ D¸ÀàvÉæUÉ PÀgÉzÀÄPÉÄÁAqÀÄ ºÉÆÃVzÉÝ£ÀÄ. ¥ÉÇð¸ÀgÀÄ §A¢gÀ°®èè. FUÀ £ÉÆÃqÀÄwÛgÀĪÀ ¥Áæ¸Á-1 ªÀÄvÀÄÛ 2gÀªÀgÀ ªÉåzÀÊQÃAiÀÄ vÀ¥Á¸ÀuÁ ªÀgÀ¢UÀ¼À ªÉÄÃ¯É £À£Àß ¸À» EzÀÉ. CzÀPÉÌ ¸À»AiÀÄ£ÀÄß J°è ªÀÄÁrzÉÝ CAvÀ £É£À¦¯Áè."
She [PW3] was also declared as hostile witness and during the cross-examination by the learned Public Prosecutor, what is revealed from her evidence is that, [the relevant portion is reproduced hereunder:] "¸ÀzÀj zÀÆgÀ£ÀÄß PÉÆlÖ £ÀAvÀgÀ ¥ÉÇð¸ÀgÀÄ ¥Áæ¸Á-1 ªÀÄvÀÄÛ 2 gÀªÀgÀ£ÀÄß PÉ.¹.d£ÀgÀ¯ï D¸ÀàvÉæUÉ PÀgÉzÉÆAiÀÄÝgÀÄ JAzÀgÉ ¸ÁQë vÁ£Éà ¸ÀévÀB ¥Áæ¸Á-1 ªÀÄvÀÄÛ 2 gÀªÀgÀ£ÀÄß C£ÁgÉÆÃUÀåzÀ ¸ÀA§AzÀs PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÉÝ JAzÀÄ ºÉüÀÄvÁÛ¼É. C°è ªÉÊzÀågÀÄ ¥Áæ¸Á-1 ªÀÄvÀÄÛ 2 gÀªÀgÀ£ÀÄß vÀ¥Á¸ÀuÉ ªÀiÁrzÀÝgÀÄ JAzÀgÉ UÉÆwÛ®è. DgÉÆæAiÉÄà ¥Áæ¸Á-1 ªÀÄvÀÄÛ 2 gÀªÀgÀ ªÉÄÃ¯É ¯ÉåAVPÀ zÀËdð£Àå ªÀÄvÀÄÛ QgÀÄPÀļÀ J¸ÀVzÀÝgÀ §UÀÉÎ ªÀÄvÀÄÛ ªÉåzÀåQÃAiÀÄ ¥ÀjÃPÉëUÁV ¸ÀªÀÄäw ¤ÃrzÉ JAzÀgÉ ¸ÁQëAiÀÄÄ ¤¦-3 ªÀÄvÀÄÛ 4 PÀÉÌ £À£Àß ¸À»AiÀÄ£ÀÄß ªÉåzÀÊgÀi ¥ÀqÉ¢gÀÄvÁÛgÉ ªÀÄvÀÄÛ CªÀÅUÀ¼À£ÀÄß KPÉ ¥ÀqÉzÀgÀÄ CAvÀ £À£ÀUÉ UÉÄÁwÛ®è".
Thus, she [PW3] too gave shaking answers and showed ignorance about Exs.P3 and P4. But, such evidence cannot be considered as fatal to the prosecution case. In this connection, the evidence of the very material evidence i.e., the lady police [PW8] who took the victim girls [PWs-1 and 2] for medical examination. It is supported by clinching and corroborative evidence of the very Doctor [PW13] who has examined them i.e., PWs-1 and 2 and it is 28 Spl CC No.389/2017 relevant to evaluate the evidence of this [PW13] material witness [considered to be circumstantial evidence], she deposed that, both PWs-1 and 2 were brought by PW8, accompanied by the mother of PWs-1 and 2. Dr.Amrutha Prabhu-CW11/PW13 by taking consent of their mother-PW3 subjected PWs-1 and 2 to medical examination and found that, PW1 was aged about 11 years 5 months and she noted the history in the MLC Register and it is very much relevant and important to consider as because at the earliest point of time, the victim girl/PW1 disclosed the incident, which is consistent to the complaint and statement, specifically the prosecution case and also the Investigating Officer-PW16 about materials collected. Relevant portion deposed by PW13 recorded in MLC Register and Medical Report-Ex.P3, is reproduced herein below . History noted of PW1 that:
"Her[PW1] step-father Shakthivelu [accused] took her home from school 2 months back by two wheeler. At home, he told her that, her mother had gone to work, he then took her to room and forcibly removed her uniform, when she shouted and tried to resist, he tied her hands and put a gag on her mouth. He then removed her inner garments and had sexual intercourse. She did not tell to her mother, because accused threatened to kill her, her mother and sister, if she told anyone. Victim also stated that, he has been fondling her breast and touching her private parts, over last one year. According to victim, one month back, she says that her mother was not well and husband Shakthivelu gave sleeping pills to her [mother of victim]. When she passed asleep, he had intercourse with victim -PW1 again".
So, also with reference to the history noted in respect of victim girl/PW2, this witness further deposed that:
"That about 30 days back, her mother was ill, her step-father- accused [Shakthivelu] gave her mother some tablets, because of the same her mother went asleep. PW2 and her sister PW1 were sleeping in the hall. PW2 stated that her step-father-29 Spl CC No.389/2017
accused [Shakthivelu] came to the hall and started fondling her sister-PW1. He took off her [PW1] clothes and undergarments and removed his own undergarments and she further stated that he slept on her sister's PW1's body. PW1 was trying to cry out. But, he stuffed the cloth into her mouth. PW2 stated that she was so scared and she covered herself with the blanket and slept. PW2 further stated that about one week later, her step-father took her to the terrace of the house and he fondled her breasts. He told her that he would kill her mother, her sister-PW1 and herself, if she told anyone what he had done. According to PW2, accused did not kiss her and fondled her private parts or tried to have intercourse with her [PW2]".
(a) About her [PW13] opinion on examination of PW1, which discloses that, on external examination, patient/PW1 was alert, conscious and co-operative. No external injury marks found. On genital examination, she [PW13] found that, hymen was not intact.
Samples were taken. Since the victim girl/PW1 had bath and changed the cloth, clothes were not collected. She collected vaginal smear, vaginal swab, cervical smear and swab from PW1 i.e., MOs-1 to 4 which are identified by her in this connection sent for FSL with due procedure in that regard and she issued Medical certificate as per Ex.P3 with respect to PW1. She received the FSL Report and issued Final report on 26.10.2017 and opined on the basis of the above findings and FSL Report that, "the victim girl/PW1 has been exposed to an act like that of sexual intercourse, but, there is no recent evidence of the act". According to her, she gave explanation about the nature of spermatozoa that, after one week, spermatozoa disappears. Her Final Report is at Ex.P16. and the FSL Report is at Ex.P17 and the sample seal is at Ex.P17(a). Thus, with reference to the examination of PW1, her physical condition has been disclosed specifically that, her [PW1] 30 Spl CC No.389/2017 hymen was not intact. She opined that, the victim girl /PW1 was exposed to an act like that of sexual intercourse. In this connection what is revealed from the cross-examination done by the learned defence counsel is that, PW13 has not noted, who has stated about the history pertaining to the case referred to of PWs-1 and 2. But, Ex.P3 speaks the true state of affairs about the act of the accused.
(b) Regarding PW2-the victim girl, it is not the case of the prosecution that, she was sexually assaulted, which is coming within the purview of Sec.3 or Sec. 5 of POCSO Act, 2012, but, it is only fondling her breasts by the accused and it is only sexual assault. Therefore, question of considering her other physical conditions regarding the genital examination and hence, it is immaterial to consider in detail, but, it is the statement given by PW2 at the time of her examination by PW13, which supports about the prosecution case regarding the acts of the accused with PW1 as well as PW2 on different occasions subjecting them for aggravated penetrative sexual assault and also sexual assault on PWs-1 and 2 respectively.
29. The suggestion made to PW13 was denied that, she has issued Medical Certificates of PWs-1 and 2 i..e, Exs.P3, P4 and P16 without proper examination of PWs-1 and 2 and prepared medical record at the instance of the police. She [PW13] also denied the suggestion that, she has not taken the statement of PWs-1 and 2 regarding the history recorded in MLC Registers. But, there is no rebuttal evidence brought on record by the defence side. It is 31 Spl CC No.389/2017 admitted fact about subjecting the victim girls [PWs-1 and 2] for medical examination conducted by the Doctor-PW13 and also proof of giving statements by PWs-1 and 2 to her [PW13] under the history which has been recorded in the MLC Registers.
30. Therefore, it is relevant and clinching evidence supporting the prosecution case to be believed with reference to the physical condition, specifically of PW1/victim girl as she was subjected to aggravated penetrative sexual assault and hence, it is evident during her medical examination that, her hymen was not in-tact and she was exposed to an act like that of sexual intercourse and the person responsible for that she disclosed in the history i..e, "the very accused, who is none other than the step- father of the victim girls[PWs-1 and 2]..
31. It is also corroborated the evidence of the Investigating Officer/Police Inspector [CW19] PW16 who worked in the complainant-Srirampura police station from October-2015 to July-2017 as he attended this case, as Investigating Officer by receiving the complaint-Ex.P2 on 3.5.2017 when he was on duty at 2.15 P.M. It was registered in Cr.No.101/2017 and FIR[Ex.P19] was submitted to the jurisdictional court. He has deposed on oath that, on the same time, the complainant/PW3 had brought her children PWs-1 and 2 along with her and at that time, as there was no woman police in his station, hence, through his higher officer, he got called upon CW18 for counseling of PWs-1 and 2 to take their statements. However, he [PW16] has stated about the mistake regarding writing of date as 2.5.2016 instead of 3.5.2017 32 Spl CC No.389/2017 and it was through oversight and it has been rectified during the course of his evidence. CW18 the Woman PSI of Mahalakshmi Layout police station who recorded the statements of PWs-1 and 2 and reported it to PW16.
32. At this juncture, it is necessary to consider the admission on the part of PWs-1 to 3 regarding giving of statements by PWs-1 and 2 before the said officer [CW18] and non-citing of CW18 does not fatal to the prosecution case. PW16 has specifically referred the statements recorded by CW18 as per Ex.P5 [of PW1] and Ex.P7 [of PW2] [of-course, these marked portions are denied by PWs-1 and 2 and it is referred to only particular incident], but, what is revealed from the recording of statement of PW1 is that portion of the same is reproduced hereunder:
"£À£Àß ºÉýPÉAiÀÄ£ÀÄß ¥ÀqÉAiÀÄĪÁUÀ ªÀÄ»¼Á ¥ÉÇð¸ï E£ïì¥ÉPÀÖgï EzÀÝgÀÄ. D ªÉüÉAiÀÄ°è £À£Àß vÁ¬Ä PÀÆqÀ EzÀÝgÀÄ ªÀÄvÀÄÛ ªÀÄ£ÉAiÀÄ ¥ÀPÀÌzÀ ªÁ¹AiÀiÁzÀ ZÁ¸Á-4 PÀÆqÁ EzÀÝgÀÄ JAzÀgÉ ¸Àj."
But, she [PW1] has not denied the specific suggestion after declaring her as hostile witness, and putting suggestions at the cost of repetition, it is reproduced below:
"CzÀ£ÀÄß KvÀPÁÌV ¸À» ªÀiÁrzÀÄÝ CAvÀ 2-3 ¸Áj PÉüÀ¯ÁV, CªÀ¼ÀÄ ¸ÀĪÀÄä¤zÀÄÞ , £ÀAvÀgÀ ¸À» ºÁPÀ®Ä ºÉýzÀÝPÉÌ ¸À» ªÀiÁrgÀÄvÉÛÃ£É CAvÀ ºÉüÀÄvÁÛ¼É."
DgÉÆæAiÀÄÄ CvÁåZÁgÀ J¸ÀVzÀ PÁgÀtPÁÌV PÉ.¹.d£ÀgÀ¯ï D¸ÀàvÉæUÉ £À£ÀߣÀÄß ªÀÄvÀÄÛ £À£Àß vÁ¬ÄAiÀÄ£ÀÄß ªÉåzÀÊQÃAiÀÄ vÀ¥Á¸ÀuÉUÁV PÀ¼ÀÄ»¸À¯ÁVvÀÄÛ JAzÀgÀÉ ¸ÁQëAiÀÄÄ D¸ÀàvÉæUÉ PÀ¼ÀÄ»¹zÀÝgÀÄ, KvÁPÁÌV PÀ¼ÀÄ»¹zÀÝgÀÄ CAvÀ UÉÆvÁÛUÀ°®è JAzÀÄ ºÉüÀÄvÁÛ¼É.."
33 Spl CC No.389/2017During the course of her cross-examination by the learned defence counsel, she [PW1] showed ignorance about the contents of Ex.P2 and she put signatures as per the say of the police. The relevant portion is reproduced hereunder:
" ¤¦-2gÀ°è K£ÀÄ §gÉ¢zÉ CAvÀ UÀÉÆwÛ¯Áè. ¥ÉÇð¸ÀgÀÄ ºÉýzÀÝPÉÌ CzÀPÉÌ ¸À» ªÀÄÁrzÉÝÃ£É JAzÀgÉ ¸ÁQë ¸À» ªÀiÁqÀ®Ä ºÉýzÀÝgÀÄ, ¸À» ªÀiÁrzÉÝÃ£É CAvÀ ºÉüÀivÁÛgÉ. £Á£ÀÄ ¥ÉÇð¸ÀgÀ ªÀÄÄAzÉ AiÀiÁªÀÅzÉà ºÉýPÉAiÀÄ£ÀÄß ¤Ãr®è JAzÀgÉ CAvÀzÉãÀ£ÀÄß £Á£ÀÄ ºÉý®è CAvÀ ¸ÁQë ºÉüÀÄvÁÛgÉ."
Therefore, such suggestion does not defeat the prosecution case. In-fact, the said evidence has to be evaluated and to consider the cumulatively circumstances and evidence placed on record by the prosecution. Therefore, it is further relevant to consider the evidence of the Investigating Officer, as there is no any materials placed; nor brought on record during the cross- examination that, why this Investigating Officer would create false case and how he was interested in such a heinous offence alleged in the case of the complainant, to create false case against the accused. Under such circumstances, the materials collected by the Investigating Officer supporting the prosecution case by ignoring minor discrepancies, have to be believed that, he has undertaken the due investigation and collected the materials, wherein the facts supporting his version through PWs-1 to 3, and specifically other official witnesses and medical evidence. Specifically he has stated that, CWs-4 to 6 gave statements as per Exs.P9 to P11. He appointed police personnel's to apprehend the accused and accordingly, secured the accused through CWs-16 and 17 and placed before him and he has arrested the accused and took his 34 Spl CC No.389/2017 voluntary statement. Since, it was night he kept the accused in the police prison. On the next date, the accused was sent to medical examination to Victoria hospital. After his medical examination, the accused was produced before this court and he was taken to judicial custody. He has further stated about subjecting PWs-1 and 2 to medical examination. On 4.5.2017, he conducted the spot mahazar in the presence of panch witnesses-CWs-8 and 9 and PWs-1 to 3 have shown the place of incident and mahazar was conducted as per Ex.P2. He took the school records regarding birth dates of PWs-1 and 2 from CW10 on 9.5.2017. On 18.5.2017, he submitted the sealed articles for FSL analysis through CW14. On 27.5.2017, he had sent PWs-1 and 2 for recording their statements [Exs.P5 and P6] by the Learned Magistrate under Sec.164 of Cr.P.C. On 1.6.2017, he received the school certificates of PWs-1 and 2 from CW10 as per Exs.P!4 and P15. He also received the medical certificates of PWs-1 and 2 as per Exs.P3 and P4 and the accused medical examination report as per Ex.P18. Since FSL was not received, hence, keeping pending, the FSL report, he has scrutinized the records and considering the materials collected, he filed charge-sheet against the accused. He has undertaken the work under the statute regarding investigation with reference to the present case.
33. No doubt there are minor discrepancies which are ignorable, but, his evidence has to be considered with due care, which is supporting the prosecution case. It is with reference to defence that "he has not issued written notices to panch witnesses; no neighoubrs have cited as panch witnesses; not made any 35 Spl CC No.389/2017 enquiry about the owner of the spot, specifically the house in question, non-production of requisitions to secure the school records of PWs-1 and 2; non-production of particulars in connection with the apprehending of the accused; non-citing of school teacher or headmaster of the school from which the victim girl-PW1 was taken by the accused to his house" etc.. For the above discussion and reasons, they do not come to the aid of the accused. In connection with non-citing of class-teacher or Headmaster of the school, the Investigating Officer has specifically explained that, as in the complaint, it has referred that, the victim girl/PW1 came out of the school at 4 P.M., and at that time, her step-father came there and told her that her mother was in the house and called the victim girl/PW1 and he took the victim girl/PW1 to the house etc, which is outside the school. So, it was immaterial to cite them.
34. With regard to the complaint lodged by the neighbours, and not by the mother of the victim girls/PW1 and PW2. . Whereas, PWs-1 and 3 have stated about lodging of complaint, as there was quarrel between the accused and PW3 in connection with preparation of food. It was not spoken by PW2.. These are material contradictions. There is no specific explanation brought on record by the learned defence counsel about the innocence of the accused and he is a person having good behaviour and good to children [PWs-1 and 2] and also to PW3 [ alleged second wife of the accused]. Even if it was so, why PWs-1 to 3 specifically PW3 would file the complaint with such an allegation on character of their children and insisted by neibhours to file such a complaint and 36 Spl CC No.389/2017 that police would assist for such case to be registered. It is notable point that, it has not brought on record why such allegations made by PWs-1 to 3 against the accused, has not been explained by him [accused] during his statement recorded under Sec.313 of Cr.P.C nor he adduced the evidence.
35. It is also material to note that, PWs-1 and 2 did not speak about their ill-health , because of which, PW3 took them to the hospital. Whereas, PW3 stated that, she was taken her children [PWs-1 and 2] to the hospital, as they were suffering from illness and police did not take them [PWs-1 and 2] to the hospital. But, it is therefore material that, the manner in which the evidence given by PWs-1 to 3 cumulatively if considered, it is supported the prosecution case that, PWs-1 and 2 were taken by the police to the hospital during the investigation in this case on account of sexual assault by the accused and PW3 was accompanied to the hospital and PWs-1 and 2 have been subjected to the medical examination and the evidence of the Doctor-PW13 whose evidence being not shaky and corroborated the prosecution case, supported that, the accused had committed aggravated penetrative sexual assault on PW1 and sexual assault on PW2, by squeezing the breasts of PW2. Hence, from these circumstantial and clinching evidence on record, it is enough to bring home the guilt of the accused linking the chain of events.
36. It is also material to note that, there is only suggestion put to PW13 generalized that, if a child having sports activities, as such, hymen was not in-tact etc. But, there is no specific suggestion that, hymen was not in-tact, because of she [PW1] 37 Spl CC No.389/2017 involved in sports activities. Hence, it was not in-tact etc. Even, it was not suggested to PWs-1 to 3 that, PW1 was a sports person or involved in sports activities so that, it can be considered about the hymen was not in-tact etc. Then remains the initial statement given at the appropriate stage before the Doctor-PW13 and the Investigating Officer and SJPU holds acceptable with reference to committing of aggravated penetrative sexual assault and sexual assault on the victim girls/PW1 and PW2 respectively, by none other than the step-father of PW1 and PW2/victim girls i.e., the accused.
37. The prosecution has placed the evidence though the material witnesses PWs-1 to 3 turned hostile and duly proved the guilt of the accused committing sexual assault on PWs-1 and 2 who are children. But, the conduct of PW3 the mother to be viewed. PWs-1 to 3 have referred the accused as earning member of the family and looking after them and there is suggestion made by the learned Public Prosecutor to PW3 that, "as the accused was her husband, hence, to rescue him from the clutches of law, she gave evidence against the real state-of-affairs", which is acceptable. However, it is serious in nature to be viewed against PW3/mother of the victim girls [PWs-1 and 2] who was turned hostile to the prosecution case. It is amounting to violation of child right "to live with dignity and respect with regard to their respective personal status as children. The childhood is valuable as a human beings, specifically the girl children. At this stage, I would like to refer the essence and object of the POCSO Act, 2012, which would contribute to enforcement of right of all children to safety, security 38 Spl CC No.389/2017 and protection from sexual abuse and exploitation. It is expressed that:
"It is necessary for the proper development of the child that his or her rights to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child".
Further, it is the object and essence of POCSO Act, 2012 that:
"It is imperative that the law operates in manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy, physical, emotional, intellectual and social development of a child".
38. I would like to express the object of a welfare universal states in world.
"Article 15 of the Constitution, inter alia, confers upon the State powers to make special provision for children. Further, article 39, inter alia provides that the State shall in particular direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity.
"The United Nations Convention on the Rights of Children, ratified by India on 11th December 1992, requires the State parties to undertake all appropriate national, bilateral and multilateral measures to prevent (a) the inducement or coercion of a child to engage in any unlawful sexual activity; (b) the exploitative use of children in prostitution or other unlawful sexual practices; and (c) the exploitative use of children in pornographic performances and materials"39 Spl CC No.389/2017
"It is also provided for the Special Courts to determine the amount of compensation to be paid to a child who has been sexually abused, so that this money can then be used for the child's medical treatment and rehabilitation. The said Act recognizes almost every known form of sexual abuse against children as punishable offences, and makes the different agencies of the State, such as the police, judiciary and child protection machinery, collaborators in securing justice for a sexually abused child".
"By providing for a child-friendly judicial process, the said Act encourages children who have been victims of sexual abuse to report the offence and seek redress for their suffering, as well as to obtain assistance in overcoming their trauma. In time, the said Act will provide a mans not only to report and punish those who abuse and exploit the innocence of children, but, also prove an effective deterrent in curbing the occurrence of these offences."
"The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the printed media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act. The National Commission for the Protection of Child Rights [NCPCR] and State Commissions for the Protection of Child Rights [SCPCRs] have been made the designated authority to monitor the implementation of the Act".
[NOTE: These are extracted from the book of POCSO Act, 2012, written by Nayan Joshi, Advocate, which has been referred by the learned Public Prosecutor in this case].
Therefore, it is necessary to direct for legal assistance to PWs-1 and 2 as against such parents [accused and PW3] who are having responsibilities and to protect and care the right of the child, to enjoy their childhood and also for recommendation to "State Commissions for the Protection of Child Rights" to take 40 Spl CC No.389/2017 necessary steps against the accused, PW3/mother of the victim girl [PWs-1 and 2] and to provide care and protection to PWs-1 and 2 [victim girls] of this case. Thus, the material evidence, considering the status and conditions of the victim girls [PWs-1 and 2] and irresponsible mother/PW3, it is hereby held that, the prosecution has placed the cogent and clinching evidence of medical officers and Investigating Officer, that, the accused has committed the offences of aggravated penetrative sexual assault on PW1/victim girl and sexual assault on PW2/Victim girl and for giving life threat. Therefore, viewed from all these angles, it is held that, the prosecution has proved the guilt of the accused beyond all reasonable doubt. Accordingly, I answer Point Nos. 1 to 4 in the AFFIRMATIVE.
39. POINT NO.5 :- In the result, I proceed to pass following:
ORDER Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences punishable under Sec.6 of POCSO Act, 2012 and Sec.376(2)(f) (i) of IPC in connection with the victim girl/CW2/PW1 and he [accused] is also convicted under Sec.10 of POCSO Act, 2012 and Sec.354(A)(2) of IPC in connection with the victim girl/CW3/PW2 and also for the offence punishable under Sec.506 of IPC for committing of criminal intimidation giving life threat to the victim girls [PWs-1 and 2].
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 23rd day of April, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.41 Spl CC No.389/2017
26.4.2018 ORDER ON SENTENCE The accused/convict is produced from the judicial custody.
The learned Public Prosecutor and the learned defence counsel are present. Heard on sentence. The accused through his counsel has submitted that, he has 4 children and family and they are entirely depending on his earnings and he is a poor person and the family members will be put to starvation and come on the road, and hence, it is prayed to show leniency.
On the other hand the learned Public Prosecutor has specifically argued that, the accused being responsible person, as step-father of the victim girls had committed heinous offence on the person of the victim girls [PWs-1 and 2] which has been proved by the prosecution. Hence, the accused is not entitled for any leniency and maximum punishment to be awarded.
With due consideration of the arguments put forth by both the sides, it is proceeded to consider the legal aspect pertaining to awarding of sentence, as because the prosecution has proved the guilt of the accused in connection with the offences committed on PWs-1 and 2 punishable under Sec.6 of POCSO Act, 2012 which provides a minimum imprisonment for 10 years. So, also it is equivalent to the IPC provision i.e.,Sec.376(2)(f) and (i) of IPC, as because the accused is none other than the step-father of the victim girls ][PWs-1 and 2] i..e, relative/guardian and committing rape on PW1/victim girl has held above and the victim girls are 42 Spl CC No.389/2017 below the age of 12 years and hence, the penal provisions as referred above are attracting both the provisions of POCSO Act, 2012 and the IPC, minimum sentence attracted is for 10 years and with fine.
So also in connection with the offence committed by the accused on the person of the victim girl/PW2, touching her breasts, it is held to be the guilt proved by the prosecution under Sec.10 of POCSO Act, 2012, which provides the minimum sentence to be awarded is 5 years. So, also the said offence falling under Sec.354(A)(2) of IPC. The minimum sentence of imprisonment to be awarded is 3 years and under both the provisions, there is fine amount to be imposed. Sec.42 of POCSO Act, 2012 applied and held that higher degree punishment under Sec.10 of POCSO Act, 2012 to be awarded.
In connection with the criminal intimidation, proved by the prosecution and the accused had been held liable for the offence punishable under Sec.506 of IPC, the period of imprisonment maximum prescribed is 2 years and fine to be imposed and it is in connection with committing of the offence by threatening PWs-1 and 2.
Regarding the victim compensation, the victim girls/PWs-1 and 2 are sufferers of sexual assault by their step-father i.e, the accused, which is heinous in nature and they have been undergoe trauma. Apart from this, their academic carrier and future will be put into dark, as they have deprived of the protection from the accused as well as their mother/PW3, as PW3 acted irresponsible person during the trial also and hence, considering the same, it is awarded compensation of Rs.2,50,000/- to the victim girl/PW1 and 43 Spl CC No.389/2017 Rs.1,50,000/- to the victim girl/PW2. It is also necessary to recommend the Legal services authority for legal assistance to PWs-1 and 2, requiring the legal services authority, Karnataka State Legal Services Authority for providing legal assistance to PWs-1 and 2 so that they can avail the remedy as their right has been affected, apart from the offence committed on their person by their step-father and even by their mother/PW3 who acted negligently and lodged the complaint and turned hostile to the prosecution case during the trial stage, in connection with the heinous offence and therefore to take necessary and appropriate steps to get the rights of PWs-1 and 2 protected available under the POCSO Act, 2012, as they are in very much need of care and protection. Accordingly, the victim girls [PWs-1 and 2] are entitled for victim compensation to be enforced through the appropriate authority and also to provide legal assistance to victim girls [PWs-1 and 2] as discussed above.
Therefore, considering the arguments and submissions made by the accused himself and through his learned counsel about his family status and conditions, and the learned Public Prosecutor, it is proceeded to pass the following :
SENTENCE The accused by name Shakthivelu is sentenced to undergo Rigorous Imprisonment for a period of 10 Years and to pay a fine of Rs.2,500/- In default of payment of fine amount of Rs.2,500/- the accused shall further undergo simple imprisonment for a term of 6 Months, for the offences punishable under Sec.6 of POCSO Act, 2012 r/w Sec.376(2)(f) and (i) of IPC.44 Spl CC No.389/2017
Further, the accused shall undergo Imprisonment for a period of 5 Years and to pay a fine of Rs.2,500/-. In default of payment of fine amount of Rs.2,500/- the accused shall further undergo simple imprisonment for a term of 6 Months, for the offence punishable under Sec.10 of POCSO Act, 2012, as it is higher in degree than that, of the offence punishable under Sec.354(A)(2) of IPC.
Further, the accused shall undergo imprisonment for a period of 2 Years and to pay a fine of Rs.1,500/-. In default of payment of fine amount of Rs.1,500/- the accused shall further undergo simple imprisonment for a term of 3 Months, for the offence punishable under Sec.506 of IPC.
All these sentences shall run concurrently.
As regards the victim compensation, the victim girl/PW1 is awarded the victim compensation of Rs.2,50,000/-. So also, the victim girl/PW2 is awarded the victim compensation of Rs.1,50,000/- under the "Karnataka Victim Compensation Scheme, 2011". The Government of Karnataka shall pay compensation of Rs.2,50,000/- to PW1 and Rs.1,50,000/- to PW2 from "Victim Compensation Fund" as provided under Section 357(A) of Code of Criminal Procedure (Amended Act) of 1973). So also, the victim girls [PWs-1 and 2] are entitled for legal assistance through Karnataka State Legal Services Authority so as to enforce their legal right for remedy and to take steps against their parents i.e., 45 Spl CC No.389/2017 the accused and PW3/mother of the victim girls, with reference to the protection and rehabilitation and to be recommenced there-from, to "The Commissions for Protection of Child Rights", established under "The Commissions for Protection of Child Right Act, 2005".
In case, the accused deposits fine amount of Rs.6,500/-, as ordered by this court, Rs.5,000/- shall be adjusted towards the victim compensation. The remaining amount of Rs.1,500/- is ordered to be confiscated to the State.
MOs-1 to 4 are ordered to be destroyed after the appeal period is over.
Office is directed to furnish free copy of the Judgment and the order on Sentence to the accused, forthwith.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 26th day of April, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Victim girl CW2 16.10.2017 Pw.2 Victim girl CW3 16.10.2017 PW.3 Velli CW1 16.10.2017 PW.4 Babu CW9 30.12.2017 PW.5 Prema CW4 30.12.2017 46 Spl CC No.389/2017 PW.6 Vijayalakshmi CW5 30.12.2017 PW.7 Manjula CW6 30.12.2017 PW.8 Radha CW13 31.1.2018 PW.9 Manjula CW15 31.1.2018 PW.10 Appasab Vaali CW14 16.2.2018 PW.11 Mohankumar Nayak CW16 16.2.2018 PW.12 P.Revathi CW10 19.2.2018 PW.13 Dr.Amrutha Prabhu CW11 2.3.2018 PW.14 Dr.Chandrashekar Addl. Witness 6.3.2018 PW.15 Dr.Pradeep Kumar CW12 6.3.2018 PW.16 R.P.Anil CW19 17.3.2018 Documents marked for the prosecution: Ex.P1 Complaint dated: 3.5.2017 lodged by PW3 Ex.P1(a) Signature of PW3 Ex.P1(b) Signature of PW16 Ex.P2 Spot Panchanama of the incident Ex.P2(a) Signature of PW3 Ex.P2(b) Signature of PW1/victim girl Ex.P2(c) Signature of PW2/victim girl Ex.P2(d) Signature of PW4 Ex.P2(e) Signature of PW9 Ex.P2(f) Signature of PW16 Ex.P3 MLC of PW1/victim girl Ex.P3(a) Signature of PW3 Ex.P3(b) Signature of PW1/victim girl Ex.P3(c) Signature of PW13 Ex.P3(d) Signature of PW16 Ex.P4 MLC Extract copy of PW2/victim girl 47 Spl CC No.389/2017 Ex.P4(a) Signature of PW3 Ex.P4(b) Signature of PW2/victim girl Ex.P4(c) Signature of PW13 Ex.P4(d) Signature of PW16 Ex.P5 Statement of PW1/victim girl given under Sec.164 of Cr.P.C recorded by the Learned Magistrate Ex.P5(a) Signature of PW1/victim girl Ex.P5(b) Statement of PW1/victim girl given before the complainant police under Sec.161 of Cr.P.C Ex.P6 Statement of PW2/victim girl given under Sec.164 of Cr.P.C recorded by the Learned Magistrate Ex.P6(a) Signature of PW2/victim girl Ex.P7 Statement of PW2/victim girl given before the complainant police under Sec.161 of Cr.P.C Ex.P8 Statement of PW4 given before the complainant police under Sec.161 of Cr.P.C Ex.P9 Statement of PW5 given before the complainant police under Sec.161 of Cr.P.C Ex.P10 Statement of PW6 given before the complainant police under Sec.161 of Cr.P.C Ex.P11 Statement of PW7 given before the complainant police under Sec.161 of Cr.P.C Ex.P12 Report given by PW8 regarding taking of the
victim girls PW1 and PW2 to KC General hospital for medical examination and taking the sealed articles and producing the victim girls and also the articles before the Investigating Officer of the complainant police station 48 Spl CC No.389/2017 Ex.P12(a) Signature of PW8 Ex.P12(b) Signature of PW16 Ex.P13 Acknowledgement issued by FSL for having received the sealed articles in this case Ex.P14 Certificate issued by the Head Mistress, Gandhi Vidya Shala High School, Srirampuram, Bangalore, certifying the date of birth of PW1/victim girl as 6.9.2005 Ex.P14(a) Signature of PW12 Ex.P14(b) Signature of PW16 Ex.P15 Certificate issued by the Head Mistress, Gandhi VidyaShala High School, Srirampuram, Bangalore, certifying the date of birth of PW2/victim girl as 30.8.2006 Ex.P15(a) Signature of PW12 Ex.P15(b) Signature of PW16 Ex.P16 Final medical Report of PW1/victim girl Ex.P16(a) Signature of PW13 Ex.P17 FSL Report Ex.P17(a) Sample seal Ex.P17(b) Signature of PW14 Ex.P17(c) Signature of PW14 in Sample seal [Ex.P17(a) Ex.P18 Medical certificate of the accused Ex.P18(a) Signature of PW15 Ex.P18(b) Signature of PW16 Ex.P19 FIR Ex.P19(a) Signature of PW16 49 Spl CC No.389/2017 Material Object marked for the prosecution:
MO-1 Vaginal smear MO-2 Vaginal swab MO-3 Cervical smear MO-4 Cervical swab
Witness examined, documents and MO marked for the accused: NIL [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.50 Spl CC No.389/2017
23.4.2018 Accused is produced from the judicial custody.
Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences punishable under Sec.6 of POCSO Act, 2012 and Sec.376(2)(f) (i) of IPC in connection with the victim girl/CW2/PW1 and he [accused] is also convicted under Sec.10 of POCSO Act, 2012 and Sec.354(A)(2) of IPC in connection with the victim girl/CW3/PW2 and also for the offence punishable under Sec.506 of IPC for committing of criminal intimidation giving life threat to the victim girls [PWs-1 and 2].
[YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.51 Spl CC No.389/2017
26.4.2018 Sentence pronounced in open court:
[vide separate detailed sentence} The accused by name Shakthivelu is sentenced to undergo Rigorous Imprisonment for a period of 10 Years and to pay a fine of Rs.2,500/- In default of payment of fine amount of Rs.2,500/- the accused shall further undergo simple imprisonment for a term of 6 Months, for the offences punishable under Sec.6 of POCSO Act, 2012 r/w Sec.376(2)(f) and (i) of IPC.
Further, the accused shall undergo Imprisonment for a period of 5 Years and to pay a fine of Rs.2,500/-. In default of payment of fine amount of Rs.2,500/- the accused shall further undergo simple imprisonment for a term of 6 Months, for the offence punishable under Sec.10 of POCSO Act, 2012, as it is higher in degree than that, of the offence punishable under Sec.354(A)(2) of IPC.
Further, the accused shall undergo imprisonment for a period of 2 Years and to pay a fine of Rs.1,500/-. In default of payment of fine amount of Rs.1,500/- the accused shall further undergo simple imprisonment for a term of 3 Months, for the offence punishable under Sec.506 of IPC.
All these sentences shall run concurrently.
52 Spl CC No.389/2017As regards the victim compensation, the victim girl/PW1 is awarded the victim compensation of Rs.2,50,000/-. So also, the victim girl/PW2 is awarded the victim compensation of Rs.1,50,000/- under the "Karnataka Victim Compensation Scheme, 2011". The Government of Karnataka shall pay compensation of Rs.2,50,000/- to PW1 and Rs.1,50,000/- to PW2 from "Victim Compensation Fund" as provided under Section 357(A) of Code of Criminal Procedure (Amended Act) of 1973). So also, the victim girls [PWs-1 and 2] are entitled for legal assistance through Karnataka State Legal Services Authority so as to enforce their legal right for remedy and to take steps against their parents i.e., the accused and PW3/mother of the victim girls, with reference to the protection and rehabilitation and to be recommenced there-from, to "The Commissions for Protection of Child Rights", established under "The Commissions for Protection of Child Right Act, 2005".
In case, the accused deposits fine amount of Rs.6,500/-, as ordered by this court, Rs.5,000/- shall be adjusted towards the victim compensation. The remaining amount of Rs.1,500/- is ordered to be confiscated to the State.
MOs-1 to 4 are ordered to be destroyed after the appeal period is over.
53 Spl CC No.389/2017Office is directed to furnish free copy of the Judgment and the order on Sentence to the accused, forthwith.
YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
54 Spl CC No.389/2017