Bangalore District Court
Unknown vs Prabhu H on 19 November, 2018
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 19th DAY OF NOVEMBER, 2018
- : PRESENT : -
SMT.M.LATHA KUMARI, M.A.,LL.M,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
Spl.C.C.No.70/2017
COMPLAINANT :
The State of Karnataka by
K.R. Puram Police Station, Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
Prabhu H,
S/o. Hanumanthappa,
Aged about 21 years,
R/at C/o Shivareddy's house,
Near Anjinaya temple,
Bilandalli Grama and post,
Chntamani taluk,
Chikkaballapur District.
(accused in judicial custody)
[Reptd by Standing counsel, Smt.J.L ]
2 Spl.C C.70/17
J U DG M EN T
This is a charge sheet laid down by K.R. Puram Police,
Bangalore City against the accused in Crime No.572/2016 for
offences punishable under Sections 366, 376 of I.P.C and 4 of
Protection of Children from Sexual Offences Act, 2012.
2. The brief facts of the prosecution case is that, on
3.11.2016, at abut 11.30 am, accused persuaded minor daughter
of complainant CW-1 on the guise of love affair and also telling
that he is going to marry her and taken her from Chintamani
bus stand along with him and later taken her to his house
situated at Billandahalli on next day, taking advantage of no one
in his house committed forcible sexual intercourse with her and
further restrained her in his house till 8.11.2016 and even
during these period committed repeated penetrative sexual
assault on her and thereby alleged to have committed the
offence punishable u/s 366 of IPC and also section 376 IPC r/w
Section 5(l) r/w 6 of POCSO Act,2012.
3. This case came to be initiated against accused herein in
pursuance of complaint Ex.P1 given by none other than the
victim's father CW-1 on 7.11.2016 about missing of his daughter,
the complainant-police registered a case in Crime No.572/2016
for offence punishable u/s 363 of IPC. On the next day, i.e.,
3 Spl.C C.70/17
8.11.2016 conducted spot mahazar as per Ex.P2 in presence of
witnesses CW-3 and 4. After securing accused and the victim,
complainant-police by adding the some more sections i.e., 376 of
IPC, Section 4 of POCSO Act, subjected minor victim for
medical examination before Bowring & Lady Curzon hospital on
17.11.2016 and also recorded the statement of victim as per
Ex.P3 at Bowring Hospital,, special ward and also recorded the
statement of other witnesses, apprehended the accused
subjected him for medical examination, having opined that
accused has committed the offences referred supra by
collecting the medical reports of accused and victim and also
study certificate pertaining to the age of victim, laid down
charge sheet against accused for the offences referred supra.
4. After taking cognizance, this court framed charges
against accused for the offences punishable under Sections
366 IPC and Section 376 of I.P.C r/w Section 5(l) r/w Section 6
of Protection of Children from Sexual Offences Act 2012.
Considering the materials available on record, since accused
pleaded not guilty and claimed to be tried, called upon the
prosecution to prove the guilt against accused. In the exercise
of proving the guilt against accused, prosecution examined as
many as 4 witnesses as PW-1 to 4 and got marked as many as 8
documents Ex.P1 to P8 on its behalf. However, neither the
4 Spl.C C.70/17
victim nor her father, who is none other than the complainant in
this case nor the relatives of victim, supported the case of
prosecution. Considering the version of these witnesses and
also the failure on the part of prosecution to secure some other
remaining witnesses, this court rejected the prayer of learned
Public Prosecutor who sought for reissue of summons to
remaining witnesses. Since, there was no incriminating evidence,
accused, his statement under Section 313 of Cr.P.C, has been
dispensed with.
5. I have carefully scrutinized the oral and documentary
evidence produced by the prosecution. Heard, the learned
standing counsel appearing for accused and the learned Public
Prosecutor, who has taken this court through the material on
record.
6. Now the points that arise for my consideration are as
under:
1. Whether the prosecution has
proved beyond reasonable doubt
that on 03.11.2016, at about 11.30
am accused abducted CW-2, the
minor daughter of CW-1 from near
Chintamani bus stand with an
intention to seduce her sexually on
the guise of marrying her and
thereby committed offence
5 Spl.C C.70/17
punishable under Section 366 of
IPC?
2. Whether the prosecution has
proved beyond reasonable doubt
that after abducting the CW-2 the
victim girl taken her to his house
situated at Billandahalli on next
day i.e., on 4.11.2016 taking
advantage of none of them in his
house committed forcible sexual
intercourse with her and also
committed repeated penetrative
sexual assault on her by wrongfully
restraining her in his house till
8.11.2016 and thereby committed
offence punishable under Section
376 of IPC r/w Section 5(l) r/w
Section 6 of POCSO Act 2012?
3. What order?
7. My findings on the above points are as under:-
Point No.1 : In the negative
Point No.2 : In the negative
Point No.3 : As per final orders for the
following
6 Spl.C C.70/17
R E A S O N S
8. Point No.1 & 2: These two points are taken together
as they are inter connected with each other and also to avoid
repetition of facts.
9. It is the case of prosecution that, on 3.11.2016, at
abut 11.30 am, accused persuaded minor daughter of
complainant CW-1 on the guise of love affair and also telling
that he is going to marry her and taken her from Chintamani
bus stand along with him with an intention to sexually seduce
her and later taken her to his house situated at Billandahalli on
next day i.e., on 4.11.2016 taking advantage of no one in his
house committed forcible sexual intercourse with her and
further detained her in his house till 8.11.2016 and even during
these period committed repeated penetrative sexual assault on
her. To establish this story, prosecution firstly examined none
other than the complainant who is also father of victim herein.
In his complaint Ex.P1, according to prosecution, he only stated
about missing of her daughter on 3.11.2016. In his chief-
examination by the learned Public Prosecutor complainant
admits that victim CW-2 is his daughter and further states
that he do not know the accused herein and also asserts that
accused neither taken his daughter along with him nor
7 Spl.C C.70/17
committed any sexual abuse on her and he has not given any
statement before the complainant-police in this regard. He
admits contents of Ex.P1 which is only missing complaint and
later denies the spot mahazar Ex.P2, though he admits his
signature on the same. In his cross-examination, he has denied
any statement before complainant-police stating that accused
abducted his daughter and committed forcible sexual
intercourse with her and said statement is marked on behalf of
prosecution as per Ex.P3.
10. Further prosecution examined daughter of
complainant who is also victim in this case. She is an eyewitness
according to prosecution. As on the date of recording her oral
testimony on oath, she has stated her age as 19 years. Even
this witness has not been supported the case of prosecution
and asserted that she is not at all acquainted with accused nor
given any statement against accused. She has pleaded her
ignorance about the contents of mahazar Ex.P4 and also
statement alleged to have been recorded at Bowring Hospital
Special Ward as per Ex.P5 and before the learned Magistrate
i.e., 164 of Cr.P.C statement of victim as per Ex.P6. Even in her
cross-examination, she has denied the version of prosecution
that accused abducted her with an assurance that he is going to
marry her and later committed forcible penetrative sexual
8 Spl.C C.70/17
assault on her. Victim not at all admits the vital documents
Ex.P4 to P7 in her evidence before this court.
11. PW-3 Sharath Babu is relative of complainant. Even he
has not supported the case of prosecution and asserted that
PW-1 is his maternal uncle, victim is his maternal uncle's
daughter. He do not know accused, he has denied execution of
any mahazar in his presence as per Ex.P2. In his cross-
examination by treating this witness as hostile by the learned
Public Prosecutor, he has denied that on 8.11.2016 complainant-
police drawn mahazar as per Ex.P2 in his presence on the place
of occurrence due to missing of victim.
12. PW-4 is brother-in-law of complainant and maternal
uncle of victim herein. Even he has not supported the case of
prosecution. PW-4 deposes that PW-1 is his younger sister's
husband and victim is his younger sister's daughter. He do not
know the accused herein and further asserted that he is not at
all aware of contents of Ex.P4 another mahazar. In his cross-
examination by the learned Public Prosecutor he has denied his
presence at the time of Ex.P4 near the spot i.e, dilapidated
building situated near I.T.I Colony. Neither victim nor the
complainant nor mahazar witnesses who are also relatives of
victim supported the case of prosecution. In missing complaint
Ex.P1, complainant has stated that her daughter found missing
9 Spl.C C.70/17
on 3.11.2016 who went to college around 8.30 am did not return
home. Whereas, complaint came to be lodged on 7.11.2016 i.e.,
after lapse of 4 days. Complainant-police not at all explaining
the delay of 4 days. Considering un-explained delay and the
oral testimony of PW-1 to 4 discussed supra, this court opines
that prosecution fails to discharge its burden in establishing
the case against accused. The learned Public Prosecutor
inspite of vital witnesses turned hostile sought for issuance of
summons to remaining witnesses. On perusing of order sheet, it
appears that CW-1 to 5 were only secured on repeated issuance
of summons and witness warrant. On release of accused on bail,
accused remained absent since 16.10.2017 with no
representation. NBW was issued against accused and later
charge came to be framed on 24.2.2018 by issuing summons to
CW-1 to 5 by fixing the date for trial on 5.4.2018. Whereas, on
5.4.2018 inspite of service of summons on CW-1 to 5 personally
none of the witnesses appeared before the court to depose on
behalf of prosecution. Matter adjourned to 8.5.2018 by issuing
warrant against CW-1 to 5. On that day, accused was present,
so also CW-1, 2, 3 and 5 were present. Whereas, the learned
counsel for accused remained absent, case was again called at
11.25 am, whereas at that time, neither accused nor his counsel
were present. Considering the absence of accused and his
counsel this court bind over the witnesses CW-1, 2, 3 and 5 on
10 Spl.C C.70/17
costs of Rs.5,000/- against each witness and issued NBW
against accused. On 8.5.2018 accused was produced by
complainant-police by executing the warrant. On that day, the
learned counsel for accused Sri.MSG filed no objection
Vakalath and considering the absence of accused and also
violation of bail conditions, accused was remanded to judicial
custody. Later, on 1.10.2018, bail application came to be filed
by the very learned counsel Sri. MSG along with Memo of
Appeaance, whereas said bail application came be to allowed
with a direction to accused to deposit witnesses costs of
Rs.20,000/- by order dated 4.10.2018 and summons were again
issued to CW-1 to 5 for conducting trial on 7.11.2018. Even on
7.11.2018, when victim, witnesses were present the learned
counsel Sri. MSG remained absent. Accused was also not
produced from judicial custody. As per the decision reported in
2011 Cri.L.J (SC) 1690 (Md.Sukur Ali Vs. State of Assam), the
Hon'ble Supreme Court observed that, even if the counsel for
the accused does not appear because of his negligence or
deliberately, even then the court should not decide a criminal
case against the accused in the absence of his counsel, since
accused is in a criminal case should not suffer for the fault of
his counsel and in such a situation the Court should appoint
another counsel as amicus curiae to defend the accused.
Relying upon these principles of the Hon'ble Supreme Court and
11 Spl.C C.70/17
also provisions of Section 273 of Cr.P.C this court appointed
standing counsel Smt. J.L to conduct the case on behalf of
accused. Accordingly, the learned standing counsel conducted
the trial on behalf of accused. As I have already stated
neither victim nor her father nor her relatives supported the
case of prosecution. That apart, there is also delay in lodging
complaint. The version of prosecution witnesses PW-1 to 4 and
also the delay makes the case of prosecution not only vague, but
also doubtful and thereby enables the accused for acquittal.
Accordingly I have answered points No.1 & 2 in the negative.
13. Point No.3: In view of my above discussion and
findings, I proceed to pass the following:
ORDER
Acting under Section 235(1) of Cr.P.C accused is hereby acquitted for the offences punishable under Sections 366 of IPC and also Sec. 376 of I.P.C r/w Section 5(l) r/w Section 6 of POCSO Act 2012.
(Dictated to the Stenographer, transcript corrected, signed and then pronounced by me in open court on this the 19th day of November, 2018.) (M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
12 Spl.C C.70/17 A N N E X U R E LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW1 Ashok PW2 victim girl PW3 Sharath Babu PW4 Muralimohan LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Complaint Ex.P 1(a) Signature of PW-1 Ex.P 2 Spot Mahazar Ex.P 2(a) Signature of PW-1 Ex.P 3 statement of victim girl Ex.P 3(a) Signature of victim girl Ex.P 4 Spot Panchanama Ex.P 4(a) Signature of victim girl Ex.P 4(b) Signature of PW-4 Ex.P 5 Statement of victim at Bowring hospital Spl Ward Ex.P 5(a) Signature of victim girl Ex.P 6 statement of victim u/Sec 164 of Cr.P.C Ex.P 7 Further statement of victim girl Ex.P 8 Age certificate 13 Spl.C C.70/17 LIST OF MATERIAL OBJECTS MARKED
- NIL -
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE NIL LIST OF WITNESSES EXAMINED, AND MO'S MARKED ON BEHALF OF DEFENCE
- NIL -
(M.LATHA KUMARI) LIII A.C C & S Judge,Bangalore. 14 Spl.C C.70/17 19.11.2018 Judgment pronounced in the open court, operative portion of which reads as under:-
ORDER Acting under Section 235(1) of Cr.P.C accused is hereby acquitted for the offences punishable under Sections 366 of IPC and also Sec. 376 of I.P.C r/w Section 5(l) r/w Section 6 of POCSO Act 2012.
Accused shall be set at liberty, if he is not required in any other case.
Intimate jail authority.
(M. LATHA KUMARI) LIII A.C C & S J, Bangalore.
15 Spl.C C.70/17 reported in 2011 Cr.L.J(SC) 1690 Md.Sukur Ali Vs. State of Assam. the citation of the Hon'ble Supreme Court reported in 2011 Cri.L.J (SC) 1690. In this citation, the Hon'ble Supreme Court observed that even if the counsel for the accused does not appear because of his negligence or deliberately, even then the court should not decide a criminal case against the accused in the absence of his counsel, since accused is in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused.