Bangalore District Court
State By - Banasawadi Police Station vs Stephane @ Akenou on 25 April, 2015
IN THE COURT OF THE XI A.C.M.M., AT MAYO HALL UNIT.
Mahatma Gandhi Road, Bangalore City.
Present: Sri. P.SRINIVASA, B.A.L., LL.M.,
XI A.C.M.M., Bangalore City.
Dated: This the 25th day of April 2015.
C.C.No.50251/2015
COMPLAINANT :: State by - Banasawadi Police Station
(State represented by Sr.APP)
Vs.
ACCUSED :: 1. Stephane @ Akenou
Guy Noel Stephane,
S/o. Gnahoua Allouet,
24 years,
5th Cross,
OMBR Layout,
Banasawdi,
Bangalore.
N/o. West Africa,
Ivory Coast Country
2. Smt. Martheloba,
W/o. Gnahoua Guy Dorgeles,
52 years,
Ivory Coast,
West Africa.
(Accused No.1 & 2 represented by
Advocate Smt.Nancy Prince)
*****
2
C.C.NO.50251/2015
1. Date of commission of the offence :: 01-03-2013
2. Date of report of offence :: 13-09-2014
3. Arrest of the accused :
a) Date of arrest of accused :: 14-09-2014 (A1)
b) Release of accused on bail :: A-1-19-09-2014
A-2-11-02-2015
4. Name of the Complainant :: SMT. AMRAME
5. Date of recording evidence :: 11-02-2015
6. Date of closing evidence :: 08-04-2015
7. Offences complained of :: Sec.420 & 506
R/w 34 of IPC.,
& Section 14 of
Foreigners Act,
1946 & Order
7(2) of Foreigners
Order, 1948.
8. Opinion of the Judge :: Accused No.1 &
2 found not
guilty.
XI A.C.M.M., Bangalore.
Judgement
3
C.C.NO.50251/2015
JUDGEMENT
The PI, of Banasawadi Police Station has filed charge sheet against the accused No.1 & 2 for the offence punishable under Sections 420 & 506 R/w 34 of I.P.C., and Section 14 of Foreigners Act, 1946 & Order 7(2) of Foreigners Order, 1948.
2. Brief facts of the prosecution case is as follows; Accused No.1 is the son of accused no.2 herein. Accused no.1 & 2 are Ivory Coast Nationals. Accused No.1 entered India under Student VISA to pursue his education at Bangalore, India. For the past 3 years accused No.1 is residing at Kalyana Nagara, Bangalore. About 1½ year back accused No.1 befriended complainant's daughter (i.e., CW-2) and promised her to marry and both of them started living together as couple and CW-2 became pregnant. When CW-2 demanded accused No.1 to marry her, accused No.1 told her that he will send for his mother and avoided the marriage.
Judgement 4 C.C.NO.50251/2015 Accused No.2 came from Ivory Coast during August 2014 and told CW-2 that she does not like her and she will pay for the delivery and take the child if it is a boy along with them. CW-2 delivered a boy and refused to part with the child. Hence, accused No.1 & 2 ill-treated CW-2 and threatened to kill her if she refused to part with child and drive CW-2 from out of the house. Hence, complainant has lodged complaint before the jurisdictional police.
3. On 14-09-2014, accused No.1 produced before this Court and later he was enlarged on bail. On 11-02-2015, accused No.2 appeared before this Court and later she was enlarged on bail. After filing of the charge sheet against the accused herein, cognizance of the offences was taken by this Court. Copies of the charge sheet and other prosecution papers were furnished to the accused No.1 & 2 as provided under Section 207 of Cr.P.C. Charges were framed and read over and explained to the accused No.1 & 2. The accused No.1 & 2 pleaded not Judgement 5 C.C.NO.50251/2015 guilty. Hence, case was posted for trial. To bring the guilt of the accused, prosecution got examined PW-1 and got marked Ex.P-1 & 2. Complainant has turned hostile and CW-2 is staying aboard and memo filed by accused acknowledging over stay in India hence, no purpose will be served if remaining witnesses are examined. Hence, CW-2 to 14 were dropped. No incriminating evidence adduced against the accused No.1 & 2 herein hence, recording of accused statement is dispensed with.
4. Heard arguments.
5. After analysing oral evidence and materials available on records, points for my determination are as follows;
1. Whether the prosecution proves beyond all reasonable doubt that from 01-03-2013 to 13-09-2014 at Bangalore the accused No.1 & 2 with common intention, accused No.1 promised CW-2 that he will marry her and had sexual intercourse with her and when CW-2 became Judgement 6 C.C.NO.50251/2015 pregnant, accused No.1 and 2 avoided marriage and tried to cheat CW-2 herein and thereby committed an offence punishable U/s.420 R/w 34 of IPC ?
2. Whether the prosecution proves beyond all reasonable doubt that on the above said date, time and place the accused No.1 & 2 herein with common intention threatened CW-2 to kill her if she failed to hand over the child and thereby committed an offence punishable U/s.506 R/w 34 of IPC ?
3. Whether the prosecution proves beyond all reasonable doubt that the accused herein over stayed in India unauthorizedly without further extension of residential permit from concerned authority and thereby committed an offence punishable Section 14 of Foreigners Act, 1946 and Order 7(2) of Foreigners Order, 1948 ?
4. What order ?
Judgement 7 C.C.NO.50251/2015
6. My answers to the above points are as follows;
POINT NO-1 & 2 :: In Negative
POINT NO-3 :: In Affirmative
POINT NO-4 :: As per final order
for the following;
REASONS
7. POINT NOs-1 & 2 :: The burden is on the prosecution to prove that accused herein committed the offences punishable U/s.420 & 506 R/w 34 of I.P.C., In support of the prosecution case, complainant is examined before this Court. In the complaint, the complainant has stated that accused no.1 befriended CW-2 and promised to marry her and had intercourse with her and when CW-2 became pregnant and demanded for marriage, accused No.1 and 2 avoided the marriage and threatened to take away the child and cheated CW-2 herein. Per contra, the complainant in her evidence has stated that the accused No.1 is her son-in-law and she has not lodged any complaint against accused No.1 & 2. Further, Judgement 8 C.C.NO.50251/2015 has stated that there was petty quarrel between her and accused persons. At that time, when she went to police station, the police obtained her signatures on two documents i.e., Ex.P-1 & 2. But, she does not know the contents of the same. The evidence of complainant is contrary to Ex.P-1. PW-1 was treated as hostile witness. Opportunity was given to the prosecution to cross- examine PW-1. But nothing is elicited in the cross- examination of PW-1 herein. Hence the evidence of PW-1 is not helpful to the prosecution case.
8. CW-2 is the complainant's daughter. PW-1 in her evidence has stated that accused No.1 and CW-2 got married on 3-12-2014 at Glory Tabernacle of Jesus church, Bangalore and CW-2 left India and is living at her matrimonial home at Ivory Coast. From the above evidence, it goes to show that complainant and CW-2 have compromised the matter with the accused herein. CW-2 is not staying in India and not available for Judgement 9 C.C.NO.50251/2015 recording evidence hence, CW-2 was dropped. CW-3 to 14 are remaining witnesses. No purpose will be served if the remaining witnesses are examined. Hence, CW-3 to 14 were dropped. The prosecution has failed to produce sufficient evidence before the Court to show that the accused No.1 & 2 herein committed above said offences. Hence, the prosecution has failed to prove the case against accused No.1 & 2 herein. Therefore, benefit of doubt has to be given to the accused No.1 & 2 herein. Hence, I answer Point No.1 & 2 in Negative.
9. POINT NO.3 :- The burden is on the prosecution to prove that accused No.1 & 2 herein committed the offences punishable under Section 14 of Foreigners Act, 1946 & Order 7(2) of Foreigners Order, 1948. Charges against accused nos.1 & 2 is that they have over-stayed in India unauthorizedly without getting residential permit extended from competent authority. Accused have filed Memo before this Court stating that due to pendency of Judgement 10 C.C.NO.50251/2015 the above case, accused No.1 & 2 have over stayed in India and they are unable to leave India and go to their own country and accused No.1 & 2 intend to leave the country immediately after disposal of the case. Advocate for the accused argued that accused no.1 has overstayed in India and accused No.2 recently entered India and due to pendency of above case, accused No.2 could not leave India. Further, argued that both the accused are prepared to leave the country and they may be deported from India to their country. Perused the records. The prosecution has produced xerox copy of VISA of accused No.1 and also report of Asst. Foreigners Regional Registration Officer. From the above said documents it goes to show that, the accused No.1 has overstayed in India. In view of submission made by the advocate for the accused, it clearly goes to show that the accused nos.1 and 2 herein have overstayed in India unauthorizedly. Hence, accused No.1 and 2 have committed offence under Section 14 of Foreigners Act, Judgement 11 C.C.NO.50251/2015 1946 and Order 7(2) of Foreigners Order, 1948. Accordingly, I answer Point No.3 in affirmative.
10. POINT NO-4 :: In the result, I proceed to pass the following;
ORDER Acting under Section 248(1) of Cr.P.C. accused No.1 & 2 are acquitted for the offence punishable under Sections 420 & 506 R/w 34 of I.P.C.
Acting under Section 248(2) of Cr.P.C. accused No.1 & 2 are convicted for the offence punishable under Section 14 of Foreigners Act, 1946 and Order 7(2) of Foreigners Order, 1948 and sentenced to undergo simple imprisonment for one day i.e., till rising of the court and pay fine of Rs.7,000/- each, in default of payment of fine amount the accused shall undergo simple imprisonment for 15 days.
The complainant police are directed to take requisite steps to deport the accused nos.1 and 2 from India. The complainant police are directed to return the passport to Judgement 12 C.C.NO.50251/2015 accused nos.1 and 2, if seized. Police directed to submit the compliance report after deportation.
Office directed to transmit copy of the above judgement to :-
1. The Foreigners Regional Registration Officer and Commissioner of Police, Infantry Road, Bangalore.
2. The Emigration Officer, International Airport, Devanahalli, Bangaloare.
3. The S.H.O., Banasawadi Police Station, Bangalore, for information and necessary action.
(Dictated to the stenographer, transcribed by her, the transcription corrected and then pronounced by me in the open court on this 25th day of April 2015.) (P.SRINIVASA) XI A.C.M.M., Mayo hall, Bangalore.
Judgement 13 C.C.NO.50251/2015 ANNEXURE WITNESSES EXAMINED ON BEHALF OF THE PROSECUTION ::
PW-1 :: J.Amrame
DOCUMENTS EXHIBITED ON BEHALF OF THE
PROSECUTION ::
Ex.P-1 :: Complaint
Ex.P-1(a) :: Signature of complainant Ex.P-2 :: Spot mahazar Ex.P-2 (a) :: Signature of PW-1 WITNESSES EXAMINED ON BEHALF OF THE ACCUSED ::
NIL DOCUMENTS EXHIBITED ON BEHALF OF THE ACCUSED ::
NIL LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION ::
NIL (P.SRINIVASA) XI A.C.M.M., Mayo hall, Bangalore.
Judgement 14 C.C.NO.50251/2015 Judgement