Bangalore District Court
The State By vs Pandiyarajan on 16 November, 2018
IN THE COURT OF THE LXX ADDL. CITY CIVIL
& SESSIONS JUDGE & SPECIAL JUDGE,
BENGALURU CITY (CCH-71)
Dated this the 16th day of November, 2018
:PRESENT:
SRI. MOHAN PRABHU
M.A., L.L.M.,
LXX Addl. City Civil & Sessions & Special Judge,
Bengaluru.
S.C.NO.1234/2015
COMPLAINANT: The State by
Upperpet Police Station,
BENGALURU
(By Special Public Prosecutor)
v/s
ACCUSED: Pandiyarajan,
S/o Late Kumaravelu ,
22 years, Akrakara Street,
Periyanolapai village,
Jenji Taluk,
Vellupuram District,
Tamil Nadu - 604 204.
(By Sri.SN, Advocate)
1. Date of commission of offence: 8.7.2014
2. Date of report of occurrence : 9.7.2014
3. Date of commencement of : 5.4.2018
recording of evidence
4. Date of closing of evidence : 31.8.2018
2 S.C.No.1234/2015
5. Name of the Complainant : Malappa
6. Offences Complained of : Sec.363, 376 IPC &
U/Sec.4 of POCSO Act,
2012 & U/Sec.3(ii)(v) of SC
& ST (POA) Act, 1989.
7. Opinion of the Judge : Accused is acquitted
JUDGMENT
The Assistant Commissioner of Police, Chickpet Sub- Division has filed the charge sheet against the accused for the offences P/U/Secs.363, 376 of IPC and U/Sec.4 of POCSO Act and U/Sec.3(ii)(v) of SC & ST (POA) Act.
2. This case which was pending before 2nd Addl. City Civil and Sessions Court, Bangalore transferred to this court as per order dt:29.7.2017.
3. The case of the prosecution is as under:
That on 8.7.2014 at about 4 p.m. the accused kidnapped CW2/victim aged 17 years from near VHD Home Science College, Sheshadripura Road and took her to the shop no.112, 3 S.C.No.1234/2015 KSRTC bus stand, Bangalore and then he took her to Kattigenahalli, Ambedkarnagar, No:68, 2nd Cross, Bangalore and thereafter he took to Chengi Taluk, Velupuram, Tamilnadu and had forceful sexual intercourse with her from 8.7.2014 to 23.7.2014 and committed rape. The accused knowing very well that CW2 belongs to Schedule Caste committed sexual assault on her by committing sexual intercourse. Based on the missing complaint filed by CW1 father of the victim, on 9.7.2014 Upparpet Police registered the case in Cr.No:230/2014 and sent FIR to the court. It is further case of the prosecution is that on 23.7.2014 on coming to know about the registering the case, the victim and accused came to the police station on 24.7.2014. The Investigating Officer recorded the statements of the victim and added Secs.376, 366A of IPC and U/Sec.4 of POCSO Act and U/Sec.3(ii)(v) of SC & ST (POA) Act. The victim was subjected to medical examination. The Investigating Officer recorded the voluntary statement of the accused. The Investigating Officer recorded the statements of the witnesses.
The Investigating Officer conducted the mahazar. The Investigating Officer after collecting all the materials on 4 S.C.No.1234/2015 completion of investigation has filed the charge sheet against the accused for the aforesaid offences.
4. The accused who is engaged counsel released on bail as per order dt:27.9.2014 by the Hon'ble 50th Addl. City Civil & Sessions Court, Bangalore when the case was pending before that court. This case was transferred to 2nd Addl. City Civil & Sessions Court on the point of jurisdiction. Thereafter after establishing this exclusive special court for SC & ST (POA) Act this case transferred to this court. The charge sheet copies furnished to the accused and thereby the provision U/Sec.207 of Cr.P.C. is duly complied with. After hearing on both sides on 31.10.2017 charges are framed against the accused for the offences P/U/Secs.363, 376 of IPC and U/Sec.4 of POCSO Act and U/Sec.3(ii)(v) of SC & ST (POA) Act, for which the accused pleaded not guilty and claimed to be tried.
5. During trial the prosecution has examined 6 witnesses as PWs.1 to 6 and documents Ex.P1 to P12 are marked. Mos.1 to 8 are marked. Out of 27 witnesses cited in the charge sheet only 6 witnesses are examined by the prosecution. 5 S.C.No.1234/2015
6. On 4.9.2018 the statement of the accused as required U/Sec.313 of Cr.P.C. is recorded by putting all the incriminating circumstances in the prosecution evidence available against the accused to him. The accused has denied all such circumstances and has not led any defence evidence.
7. I have heard the arguments of the learned Special Public Prosecutor and learned counsel for the accused and perused the entire case papers.
8. The following points arise for my consideration:
POINTS
1. Whether the prosecution proves beyond all reasonable doubt that on 8.7.2014 at about 4 p.m. the accused has kidnapped CW2 from near VHD Home Science College, Sheshadri Road with an intention to cause her to be secretly and wrongfully confine and thereby the accused has committed an offence P/U/Sec.363 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that the accused by kidnapping CW2 took her to the shop 6 S.C.No.1234/2015 No:112 of KSRTC Bus stand, Bangalore, then took her to House No:68, 2nd Cross, Ambedkar Nagar, Kattigenahalli, Bangalore and then to Chengi Taluk, Velupuram, Tamilnadu and had forceful sexual intercourse with CW2 and thereby the accused has committed an offence P/U/Sec.376 of IPC?
3. Whether the prosecution proves beyond all reasonable doubt that the accused has committed sexual assault to CW2/victim when she was minor and thereby the accused has committed an offence P/U/Sec.4 of POCSO Act?
4. Whether the prosecution proves beyond all reasonable doubt that the accused has committed an offence P/U/Sec.3(ii)(v) of SC & ST (POA) Act?
5. What order?
9. My findings on the above points are as follows:
Point No.1:- In the negative Point No.2:- In the negative Point No.3:- In the negative 7 S.C.No.1234/2015 Point No.4:- In the negative Point No.5:- As per final order for the following REASONS Point No.1 to 4:
10. Since these points are interlinked with each other, in order to avoid repetition and for convenience I have taken them up together for consideration.
11. PW1 is the complainant. PW1 is the father of PW2. PW2 is the victim. PW3 is the sister of PW2. PW4 Dr.Rameshchandra Reddy who has examined the accused. PW5 Dr.Nirmala Reddy who referred the victim to the Government Dental College & Research Institute, Bangalore. PW6 is the Investigating Officer who has filed the charge sheet against the accused.
12. In this case PWs.1 to 3 are completely turned hostile to the case of the prosecution.
8 S.C.No.1234/2015
13. PW1 has deposed that he belongs to Adi Karnataka community which comes under Schedule Caste. He states that the accused does not know his caste. He states that the accused was residing in the 3rd floor and they were residing in the ground floor of the same building in Sampangi Ramanagar, Bangalore. That on 8.7.2014 his daughter PW2 had gone to college at about 9.30 a.m. and thereafter did not return even up to 3.30 p.m. Hence they enquired with their relatives, neighbors and they did not come to know about her. Hence on the next day on 9.7.2014 he has lodged the missing complaint before the Upparpet police as per Ex.P1. He states that about one week later the police called him to the police station and showed his daughter PW2 and the accused. He states that his daughter PW2 married to accused and they are living together and they have one daughter. He states that he does not know whether the accused has sexually assaulted his daughter and kidnapped her. He states that he has not given any further statement before the police. Having turned hostile to the case of the prosecution the learned Special Public Prosecutor cross- examined PW1 in detail. During the course of his cross- 9 S.C.No.1234/2015 examination PW1 has denied all the suggestions made to him. He has denied the suggestion that the accused kidnapped his daughter PW2 and sexually assaulted her by committing sexual intercourse on 8.7.2014. He has denied of giving any such statement before the police as per ExP2.
14. PW2 Smt.Nalini is the victim in this case. PW2 has deposed that the accused is her husband. She states that her marriage with the accused performed on 11.7.2014 at Tamilnadu. She states that when she was married the accused she was running the age of 18 years. She states that in the year 2014 when she was studying in Ist B.Com at VHD Home Science College, at that time she was residing in the same building where the accused was residing. She states that she and the accused were loving each other and when they said about the same to her parents, they refused to perform the marriage. Hence she and the accused went to Tamilnadu and married. She states that the accused has not kidnapped her any point of time. She states that the accused has not had forceful sexual intercourse with her. She states that she and 10 S.C.No.1234/2015 the accused went to Tamilnadu and after seven days they voluntarily came to police station. She states that the police took her signature on Ex.P3 mahazar in the police station. She has deposed that the police have not took her before the magistrate and she has not given any statement before the magistrate.
15. Having turned hostile to the case of the prosecution the learned Special Public Prosecutor cross-examined PW2 in detail. During the course of her cross-examination by learned Special Public Prosecutor PW2 has denied all the suggestions made to her. She has admitted the suggestion that the accused took her to his uncle's house and also took her to Tamilnadu. She has denied the suggestion that the accused kidnapped her and forcefully had sexual intercourse with her. She has denied the suggestion that the accused has married her on 20.7.2014 at Angala Parameshwari Temple. She has denied the suggestion that the accused has committed forceful sexual intercourse with her and committed rape on her. She has denied the entire contents of the documents Ex.P3 mahazar. 11 S.C.No.1234/2015 She has admitted the suggestion that Mo1 six cloths belongs to her. She has denied of giving any such statement before the magistrate as per Ex.P4. She has denied all the suggestions made to her. Nothing is elicited from the mouth of PW2 to support the case of the prosecution.
16. PW3 is the sister of PW2 also turned hostile to the case of prosecution. PW2 has deposed that on 9.7.2014 when she along with PW2 went to the college thereafter PW2 found missing. Hence her father PW1 lodged the missing complaint. She states that after one month of lodging the complaint the police brought her sister PW2 to the police station. She states that she has not gone to the police station. She has deposed that she do not know anything about where PW2 went. She has deposed that she do not know anything about this case. She states that PW2 has not stated anything before her. Since PW3 has turned hostile to the case of the prosecution, the learned Special Public Prosecutor cross-examined her in detail. During the course of her cross-examination by the learned 12 S.C.No.1234/2015 Special Public Prosecutor PW3 has denied all the suggestions made to her.
17. PW4 Dr:Rameshchandra Reddy has deposed that on 25.7.2014 at about 3.35 p.m. he has examined the accused and collected Mos.2 to 8 and thereafter issued his report as per Ex.P5. He has deposed that after perusal of the RFSL report as the presence of seminal stain was detected in the underwear of the accused, hence he opined that the accused had sexual intercourse with the victim. PW4 has issued his report as per Ex.P5. The oral evidence of PW4 remained unchallenged as the learned counsel for the accused has not cross-examined him.
18. PW5 Dr.Nirmala Reddy has deposed that on 26.7.2014 victim was brought to the KC General Hospital in order to ascertain her age. Since there was no OPG X-ray she sent the victim to the Government Dental College & Research Institution. The oral evidence of PW5 is formal in nature. 13 S.C.No.1234/2015
19. PW6 B.Rajendrakumar has deposed that on 25.7.2014 he took up the case file from CW24 for further investigation. He states that he asked CW26 to take the accused to the police custody. He states that he has also issued memo to CW26 to conduct the mahazar at Tamilnadu. He has deposed that on 29.7.2014 the Sub-Inspector Sharavana has submitted his report as per Ex.P7 for having conducted the mahazar in the place of incident at Tamilnadu. PW6 has deposed that on 30.7.2014 he has recorded the statements of witnesses Yuvaraj, Ashok, Raja, Rajamma and Bhagyamma. On 20.12.2014 he has received the Ex.P8 RFSL report and on 26.7.2014 he has received the document Ex.P5. He states that on 23.12.2014 he has received Ex.P9 report regarding the caste of the victim. On 20.2.2015 he has received the document Ex.P10 medical report of the victim and Ex.P11 examination report of accused. On 17.3.2015 he has received Ex.P12 report regarding the caste of the accused. He after completion of investigation filed the charge sheet against the accused. The oral evidence of PW6 also remained unchallenged 14 S.C.No.1234/2015 as the learned counsel for the accused not cross-examined PW6.
20. Based on the above evidence it is to be examined if the prosecution is successful in bringing home the guilt of the accused beyond all reasonable doubt.
21. PW1 is the father of the victim has not deposed anything against the accused. PW1 has deposed that his daughter PW2 married to accused and they are living together and they have one daughter. PW1 in his examination-chief itself has deposed that he do not know whether the accused has sexually assaulted his daughter and kidnapped her. PW1 has not stated anything against the accused.
22. PW2 is the victim. In her examination-in-chief has deposed that the accused is her husband. She states that her marriage with the accused performed on 11.7.2014. According to PW2 at the time of marriage she was running the age of 18 years. It is the evidence of PW2 is that at no point of time the accused has kidnapped her and forcefully had sexual 15 S.C.No.1234/2015 intercourse with her. PW2 has deposed that she and accused were loving each other and as their love affair came to the knowledge of the parents and when the accused asked her parents to give her in marriage they refused, hence she along with the accused went to Tamilnadu and married. PW1 has deposed that she and the accused came to the police station after coming to know that her father lodged the missing complaint.
23. It is to be noticed that the case of the prosecution is that PW2 was a minor at the relevant point of time. In order to substantiate the contention taken by the prosecution that PW2 was minor as on 8.7.2014 the prosecution has not got marked any school certificate of PW2. PW5 Dr.Nirmala Reddy of KC General Hospital has deposed that when the victim was brought before her in order to ascertain the age as there was no OPG X-ray facility she was sent the victim to the Government Dental College & Research Institution. PW5 has not examined the victim in order to ascertain her age. Since there is no document on the side of the prosecution to show 16 S.C.No.1234/2015 the exact age of PW2 as on 8.7.2014, this court cannot held that PW2 was minor as on 8.7.2014. The Hon'ble Supreme Court in the case of K.P.Thimmappa Gowda Vs State of Karnataka reported in (2011) 14 Supreme Court Cases 475 while setting aside the conviction awarded by our Hon'ble High Court has held as under:
Para-12 "in criminal cases the rule is that the accused is entitled to the benefit of doubt if the court is of the opinion that on the evidence two views are reasonably possible one that the appellant is guilt and the other that he is innocent. Then the benefit of doubt goes in favour of the accused."
Para-13 In the present case the facts are that Rathnamma herself stated in her evidence that she had sex with the appellant on several occasions. It is also an admitted fact that FIR against the appellant was lodged just a few days before the birth of Rathnamma's child which means there is 17 S.C.No.1234/2015 delay of over eight months in lodging the FIR. The finding of the trial court which has not been disturbed by the Hon'ble High Court is that Rathnamma was about 18 years of age at the relevant time. On these facts a view is reasonably possible that Rathnamma had sex with appellant with her consent and hence there was no offence U/Sec.376 of IPC because sex with a woman above 16 years of age with her consent is not rape.
24. The Hon'ble Supreme Court in the case of State of HP Vs Suresh Kumar @ Choota reported in 2008 SAR (Criminal) 835 (SC) while upholding the order of acquittal passed by the Hon'ble High Court has held that the date of birth of the prosecutrix as claimed by the prosecution has had not been established.
25. Thus by applying the principles laid down in the above cases it is noticed that in the present case the prosecution has not got marked any document such as school certificate or birth certificate to show the exact date of birth of 18 S.C.No.1234/2015 PW2. No-doubt PW2 has deposed that when she was married to the accused she was running 18 years of age. That itself is not sufficient to hold that PW2 was not completed 18 years. PW6 the Investigating Officer has not deposed anything about the age of PW2 as on the date of alleged incident. Thus the prosecution has failed to prove beyond reasonable doubt that PW2 was less than 18 years of age at the time of the alleged incident. The oral evidence of PW6 is not supported by any independent witness. PW6 is the Investigating Officer who has conducted part of investigation and filed the charge sheet against the accused. The uncorroborated oral evidence of PW6 which is not supported by any independent witnesses is not sufficient to hold that the accused has committed the offences U/Sec.363, 376 of IPC and U/Sec.4 of POCSO Act and U/Sec.3(ii)(v) of SC & ST (POA) Act. PW4 who has examined the accused and issued Ex.P5 examination report has opined that the accused had sexual intercourse with the victim on perusal of the FSL report. In this case the document Ex.P8 FSL report is marked through PW6. No-doubt in Ex.P8 it is mentioned that seminal stains were detected in item no.11 and 19 S.C.No.1234/2015
16. When PW2 victim herself has deposed that the accused has not committed any sexual assault on her by sexual intercourse, hence the document Ex.P8 and oral evidence of PW4 looses it's value. PW2 is the main witness in this case has not deposed anything against the accused. PW2 has specifically stated that the accused has not kidnapped her and not committed any forceful sexual intercourse with her. Thus on overall assessment and appreciation of evidence on record it cannot be said that the prosecution has proved beyond all reasonable doubt that the accused is guilty of the charges framed against him. Under the circumstances the benefit of doubt shall be given to the accused. Hence the accused is entitled for an order of acquittal for the charges leveled against him. The prosecution has failed to prove the case against the accused for the offences P/U/Secs.363, 376 of IPC and U/Sec.3 of POCSO Act and U/Sec.3(ii)(v) of SC & ST (POA) Act. Hence I answered point no.1 to 4 in the negative. 20 S.C.No.1234/2015 Point No.5:-
26. In view of my findings on point nos.1 to 4 and for the foregoing reasons and discussions, I pass the following:-
ORDER Acting U/Sec.235(1) of Cr.P.C., the accused Pandiyarajan is acquitted for the offences P/U/Secs.363, 376 of IPC & U/Sec. 4 of POCSO Act and U/Sec.3(ii)(v) of The Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.
The bail bonds of the accused and his surety stand cancelled.
The properties seized in this case Mos.1 to 8 being worthless are ordered to be destroyed after completion of appeal period. (Dictated to the Judgment Writer, transcribed by him, transcript corrected, signed and then pronounced by me in open Court on this the 16th day of November 2018) (MOHAN PRABHU) LXX Addl. City Civil & Sessions Judge & Special Judge, Bangalore.
21 S.C.No.1234/2015ANNEXURE
1.WITNESSES EXAMINED FOR THE PROSECUTION:
PW1 Malappa PW2 Smt.Nalini PW3 Kusuma PW4 Dr.Ramachandra Reddy PW5 Dr.Nirmala Reddy PW6 A.B.Rajendra Kumar
2. DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P1 Complaint
Ex.P1(a) Signature of PW1
Ex.P2 Statement of PW1
Ex.P3 Mahazar
Ex.P3(a) Signature of PW2
Ex.P4 164 statement
Ex.P4(a) Signature of PW2
Ex.P5 Medical Report
Ex.P5(a) Signature of PW4
Ex.P5(b) Signature of PW6
Ex.P6 Memo issued by PW6
Ex.P6(a) Signature of PW6
Ex.P7 Report
Ex.P7(a) Signature of PW6
Ex.P8 RFSL Report
Ex.P8(a) Signature of PW6
Ex.P9 Report of Tahsildar regarding caste of victim
Ex.P9(a) Signature of PW6
Ex.P10 Medical Report
Ex.P10(a) Initial of PW6
Ex.P11 Medical report of accused
Ex.P11(a) Initial of PW6
Ex.P12 Report of Tahsildar regarding caste of accused
Ex.P12(a) Signature of PW6
22 S.C.No.1234/2015
3. WITNESSES EXAMINED FOR THE DEFENCE:
Nil
4. DOCUMENTS MARKED FOR THE DEFENCE:
Nil
5. LIST OF MATERIAL OBJECTS:
Mo.1 Cloths of victim (6 items)
(MOHAN PRABHU)
LXX Addl. City Civil & Sessions Judge
& Special Judge, Bangalore.