Bangalore District Court
Unknown vs D.Gangadharappa @ Gandhara on 9 January, 2017
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 9th DAY OF JANUARY 2017
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 595/2014
COMPLAINANT :
The State of Karnataka by
Girinagar Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
D.Gangadharappa @ Gandhara,
S/o. Late Doddappa,
Aged about 62 years,
R/a. No.395, 5th Main,
5th Cross, Nagendra Block,
Bangalore - 50.
[Rep by Sri. N.M. Parameshwara -
advocate]
***
2 Spl.CC.595/14
JUDGMENT
Girinagar Police, Bangalore City have charge sheeted the accused for offences punishable under Sections 354-A, 376 of I.P.C. and under Section 5(m) r/w Section 9(m) r/w Section 10, 11(i)(ii) r/w Section 12 of Protection of Children from Sexual Offence Act, 2012.
2. The case of the prosecution, in brief, is as under :
CW-2 is the minor daughter of CW-1. CW-3 is also the minor paternal grand daughter of CW-6. CW-2 and 3 were studying in 1st standard during the year 2014. Their houses were opposite each other. Accused was working as salesman in Aruna Fashions Cloth Center belonging to ownership of CW-
10 which is in the building abutting to the house of CW-1. On 5.10.2014 CW-2 and 3 were playing in front of the said cloth center. Accused took them inside the cloth center and committed sexual abuse on these two victim girls by way of exhibiting his private organ, touching the private part of CW-3 and also body of CW-2. These two victim girls came running out side in fear and they informed CW-1 and others who were
3 Spl.CC.595/14 in the house of CW-2. On next day they informed the owner of the shop, verified the CCTV footage and lodged a complaint against the accused. Investigating Officer on being registered the case, got recorded the statement of both the victims. He drew necessary mahazars, he had recorded the statement of other prosecution witnesses and also seized CCTV and CD. Accused was apprehended. Victims and accused were sent to hospital for medical examination. By completing investigation, he submitted charge sheet to the Court for the aforesaid offences.
3. The charge sheet submitted to 50th A.C.C. & S.J Court (CCH-51). Cognizance was taken and registered in Special C.C. Subsequently, on the point of jurisdiction, it was transferred to the present court (CCH-54). Then learned Presiding Officer hearing both sides framed the charge against the accused for offences punishable under Sections 354-A, 376 of I.P.C and under Section 5(m) r/w Section 6 and under Section 11(i)(ii) r/w Section 12 and under Section 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 4 Spl.CC.595/14 2012. The same was read over to the accused. The accused pleaded not guilty and claimed to be tried. Hence, posted for prosecution evidence.
4. On prosecution side got examined as many as 7 witnesses as P.W.1 to 7 out of 21 charge sheet witnesses and got marked the documents at Ex.P.1 to Ex.P.8. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under:
1. Whether the prosecution has proved beyond reasonable doubt that accused on 5.10.2014 had taken CW-2 and CW- 3 aged about 6 years inside Aruna Fashions Cloth Center bearing shop No.10, belonging to CW-10 situated in 5 Spl.CC.595/14 80 feet Road, S.B.M.Colony, 1st Phase, Banashankari, Bangalore and committed sexual abuse on them by touching their body, punishable under Section 354-A of I.P.C?
2. Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place accused had committed aggravated sexual assault by touching the private part of CW-3 with his finger, punishable under Section 376 of I.P.C?
3. Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place accused had committed penetrative sexual assault on CW-2 and 3, punishable under Section 5(m) r/w Section 6 of Protection of Children from Sexual Offence Act, 2012?
4. Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place accused had committed sexual harassment on 6 Spl.CC.595/14 CW-2 and 3 by exhibiting his private part and also making obscene gestures to touch his private part, punishable under Section 11(i)(ii) r/w Section 12 of Protection of Children from Sexual Offence Act, 2012?
5. Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place accused had committed aggravated sexual assault on CW-2 and 3, punishable under Section 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012?
6. 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 : In the negative
Point No.4 : In the negative
Point No.5 : In the negative
Point No.6 : As per final orders for the
following
7 Spl.CC.595/14
REASONS
8. Point Nos.2 & 3 :- These two points are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
9. The prosecution made several allegations against the accused that he had sexually exploited PW-2 and 3 aged about 6 years studying in 1st standard. They are studying in different schools. They are residing in opposite houses. PW-1 is the father of PW-2. PW-3 is paternal grand daughter of PW-5. PW-4 is mother of PW-2. CW-5 is the mother of PW-3.
Accused was working as Salesman in Aruna Fashions cloth Center belonging to CW-10 Gopalakrishna. It is in the same building abutting to house of PW-1. On 5.10.2014 PW-2 and 3 were playing in front of the shop. Accused with intent to commit sexual abuse on them took them inside the shop. When they went to the room he brought the outside baby doll, removed the clothes put to the doll, then asked those victims to remove their dress. He made them undressed. He opened his pant zip and exhibited his penis, asked them to 8 Spl.CC.595/14 touch it. They did not do so. He forcibly made PW-3 touch his private part. He also touched the private part of PW-3 with his fingers. He pulled down the bottom of both the victims. He made an attempt to put his private part into the private part of the victim girls. He also expressed the same. Then both victims came running outside in fear. PW-1 with Madhukar son of the owner of his house and his known person by name Chandrashekar was chatting in the house. Then both the victims had been to the house and also they expressed their view that accused is a bad uncle. When PW-1 enquired them they revealed the whole incident. On next day he informed CW-10. Accused did not attend the duty on that day. He had lodged a complaint before the police. Investigating Officer on being registered the case, got recorded the statement of both the victims. He seized the CCTV camera and the DVD to which the footage has been transferred. He also recorded the statement of other witnesses who learnt about the incident from the victims. This is the case of the prosecution.
9 Spl.CC.595/14
10. There are several charges made against the accused not only under the provisions of I.P.C, but also under POSCO Act.
11. There are in all 5 charges. First charge is under Section 354-A of I.P.C that accused touched the body of victims, very particularly touched the private part of PW-3 with his fingers. According to prosecution there involved the physical contact. Fifth charge on this aspect under Section POSCO Act i.e., 5th charge under Section 9(m) r/w Section 10 of POSCO Act. First charge and 5th charge are similar. Section 354-A does not contain the sexual intention. Whereas sexual intention is one of the essential ingredients of the offence under Section 7 of POSCO Act which deals with sexual assault. Section 9(m) is the aggravated form of sexual assault. When sexual assault (Section 7 of POSCO Act) falls under any one of the categories of Section 9 of the Act, then it attracts the said offence.
10 Spl.CC.595/14
12. The second charge is under Section 376 of I.P.C. According to prosecution he touched the vagina of PW-3 with his fingers, accused forcibly made PW-3 touch his penis. He made an attempt to put his private part into vagina of the victims. He expressed his intention to do so. Second charge is under Section 376 of I.P.C. The third charge is under Section 5(m) r/w Section 6 of POSCO Act.
13. The fourth charge is under Section 11(i)(ii) r/w Section 12 of POSCO Act. Section 11 provides sexual harassment. As per the allegations made by the prosecution accused unzipped his pant and showed his penis to the victims with intent to make them touch it and also asked to touch.
14. As mentioned in supra there are in all 5 charges, first and fifth charge are almost one and the same. The second and third charges are one and the same. According to prosecution PW-2 and 3 are aged about 6 years. POSCO Act applies in cases of child only. In view of Section 2(1)(d) of the Act 'child' means any person who is below the age of 11 Spl.CC.595/14 18 years. Therefore, at the first instance, the age of the victims shall have to be looked into.
15. On going through the oral testimony as well as documentary testimony placed on prosecution side and also cross-examination of the prosecution witnesses, the age of the victims is not disputed and un-challenged. Ex.P1 is the complaint lodged by PW-1, father of PW-2, mentioning that age of PW-2 and 3 was 6 years as on the date of occurrence, they were studying in first standard. This aspect also has gone un-challenged. In view of the oral testimony of PW-1 the complainant, 2 and 3 the victims they were at the age of 6 years as on the date of alleged incident. When it is undisputed it can very well be concluded that Pw-2 and 3 are the child, very particularly below the age of 12 years.
16. Ofcourse, Section 29 of the POSCO Act provides the presumption in favour of the prosecution when the accused has been prosecuted for the offences under Section 3, 5, 7 and 9 of POSCO Act. There are charges 12 Spl.CC.595/14 under Section 5 and 9 of the POSCO Act. The presumption is available to the prosecution. However, the burden is on the prosecution to prove its case. Thereafter the burden is shifted over to the accused. If he fails to discharge his burden as laid down under Section 29 of the Act the Special Court shall presume that he has committed the offence. Therefore, what is the evidence available on prosecution side is to be seen first.
17. In order to prove this case prosecution has got examined as many as 7 witnesses. PW-1 is the complainant and also father of PW-2. PW-3 is another victim girl who is the friend of PW-2. PW-4 is the mother of PW-2. PW-5 is the paternal grand mother of PW-4. PW-6 is the doctor who conducted medical examination of PW-2 and 3 the victims. PW-7 is the doctor who subjected the accused to medical examination and issued medical report as per Ex.P8.
18. I have already discussed in supra about the charges levelled against the accused. According to prosecution there 13 Spl.CC.595/14 are several allegations made against him. There are charges under Section 5, 9 and also 11 of POSCO Act along with other charges under I.P.C. Section 3 of POSCO Act is the definition clause. Section 5 is the aggravated form of penetrative sexual assault. When Section 3 falls under any one of the categories in Section 5, it becomes aggravated form of Section 3 offence. According to prosecution PW-2 and 3 are below the age of 12 years. I have already discussed in supra the age of the victims is undisputed fact. But, at the first instance whether the prosecution has proved the ingredients of Section 3 of POSCO Act. Section 3 deals with penetrative sexual assault.
Section 3(b) provides;
"if he inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person."
As per the case of the prosecution accused touched the vagina of PW-3 with his finger. There is no evidence about insertion of the fingers into the vagina. PW-1 the complainant, 14 Spl.CC.595/14 PW-3 the prosecutrix on whom the offence under Section 5(m) is alleged to have been committed are the material witnesses. PW-4 and 5 are the other hear-say witnesses. PW-2 is another victim girl as the accused had also sexually exploited her in another way and PW-2 is the eyewitness to the offence committed by the accused on PW-3. Therefore, the evidence of PW-2 and 3 assumes more importance in the present case. On going through the oral testimony of PW-2 and 3 they have not at all supported the case of the prosecution. In the chief-examination itself they have stated that they do not know the accused, he has not committed any offences on PW-2 and 3. Though they are subjected to cross- examination by the learned Public Prosecutor they have not admitted the suggestions made by him. They have denied the whole case of the prosecution. Under the circumstance, court shall have to look upon the other evidence if any, available on record.
19. PW-1 is the complainant. Based on the disclosure by PW-2 and 3 about the alleged incident he enquired with CW-
15 Spl.CC.595/14 10 owner of the shop and after checking the CCTV footage he had lodged a complaint as per Ex.P1 by making allegations against the accused. Though PW-1 has stated in his chief examination that he has lodged a complaint, he has not stated anything against the incident. His chief examination would not suggest anything about the accused. Even in the cross- examination done on prosecution side he has not at all stated anything against the accused. Nothing is forthcoming in his evidence to show the sexual exploitation stated to have been committed by accused on PW-2 and 3. He has denied the contents of Ex.P1. Under the circumstance, it is very difficult to hold the guilt of the accused for alleged charge under Section 5(m) of POSCO Act and also under Section 376 of I.P.C.
20. PW-4 and 5 are other witnesses. Pw-4 is the mother of PW-2. PW-5 is the paternal grand mother of PW-3 another victim. Even PW-4 and 5 have also has turned hostile. Their evidence also is of no avail to the prosecution.
16 Spl.CC.595/14
21. PW-6 Dr. Roopa who conducted the medical examination on PW-2 and 3 and issued medical reports at Ex.P6 and 7 respectively. The alleged incident took place on 5.10.2014. The complaint has also lodged on 6.10.2014. According to prosecution on the same day they were subjected to medical examination. The oral testimony of PW- 6 does not help the prosecution case. Even Ex.P6 is the medical report pertaining to PW-3 the victim on whom the offence under Section 5(m) of the POSCO Act is sated to have been committed does not reveal anything to hold the guilt of the accused for the said offence. As per Ex.P6 hymen of PW- 3 is intact, no external injures are found on the body. Therefore, the oral testimony of PW-5 and also Ex.P6 does not help the prosecution in any way to convict the accused for the aforesaid charge under Section 5(m) r/w Section 6 of POSCO Act i.e., the third charge.
22. The second and third charges are one and the same. AS already discussed in supra, the essential ingredients of rape/penetrative sexual assault are not established by the 17 Spl.CC.595/14 prosecution. The victims themselves have turned hostile. The complainant has also not supported the case of the prosecution. Even the other hear-say witnesses have also completely resiled from their 161 statement. The another version of the prosecution is I.O has seized the footage of CCTV and footage has been transferred to CD at the time of drawing the mahazar. It is pertinent to note inspite of issuance of summons and also NBW I.O has not been examined on prosecution side. There is also no other evidence to believe the case of the prosecution that there was offence committed under Section either 376 of I.P.C or Section 5(m) of POSCO Act on PW-3. The third charge is also for the offence under Section 5(m) of POSCO Act alleging that accused had also committed the penetrative sexual assault on PW-2. As already mentioned in supra like that of Ex.P6, Ex.P7 the medical report pertaining to PW-2 also does not disclose anything to find guilt of the accused for the aforesaid charge. As per Ex.P7 hymen of PW-2 is also intact, no external injuries found. It does not reveal anything to connect the accused with alleged charges. Under these circumstances, prosecution 18 Spl.CC.595/14 has miserably failed to establish this case for offence under Section 376 of I.P.C. and under Section 5(m) r/w Section 6 of POSCO Act. The prosecution has failed to prove its case beyond reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold points No.2 and 3 in the negative.
23. Point Nos.1 & 5 :- These two points are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
24. The first charge is under Section 354-A of I.P.C. 5th charge is under Section 9(m) r/w Section 10 of POSCO Act. The prosecution has made allegation that accused with sexual intention touched the body of PW-2 and 3, before that he forcibly made them undressed, he unzipped his pant and exhibited his penis to PW-2 and 3 and asked them to touch it. They did not do so. He forcibly made PW-3 touch his penis. Thereafter he made an attempt to touch the private part of PW-2. In order to establish these aspects again the evidence of PW-1 to 3 is very material. But, as I have already 19 Spl.CC.595/14 discussed in supra while discussing points No.2 and 3, PW-3 and the complainant PW-1 have not supported the prosecution. Even PW-4 and 5 the material witnesses have also turned hostile. Even there is nothing found in the medical report at Ex.P6 and 7 to connect the accused with alleged charges. There is also no other evidence to establish the case of the prosecution. Ofcourse there is evidence that PW-2 and 3 are below the age of 12 years. But, mere say of PW-1 that he had lodged a complaint before the police does not establish the case of the prosecution, because except that version there is nothing before the court to hold the guilt of the accused for the aforesaid charges. In the chief- examination itself PW-2 and PW-3 have stated that they do not know the accused and he has not committed any offence on PW-2 and 3. Under the circumstance, the prosecution has utterly failed to establish its case beyond reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold points No.1 and 5 in the negative.
20 Spl.CC.595/14
25. Point No.4: The accused is alleged to have committed the sexual harassment on PW-2 and 3 by exhibiting his private part with sexual intent and also asked them to touch it. Even on this aspect also PW-2 and 3 are the proper persons to speak out. But, PW-1 the complainant, PW-2 and 3 the victims have not at all opened their mouth to speak on this aspect. Nothing is forthcoming in their oral testimony to convict the accused for the alleged charges. Even evidence of PW-4 and 5 is also not helpful to the case of the prosecution as their evidence also does not suggest anything against the accused. Ex.P8 is the medical report issued by PW-7 doctor who conducted the medical examination of accused. It speaks only that there is nothing to suggest accused is incapable of having sex, but, it does not establish in any way the aforesaid charge. There is no evidence brought on record to prove the essential ingredients of the aforesaid charge. Here also prosecution has failed to place believable and satisfactory evidence. There is nothing before the court to hold the guilt of the accused for the charge under Section 11 of POSCO Act. The prosecution has failed to prove its case beyond 21 Spl.CC.595/14 reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold point No.1 in the negative.
26. Point No.6: 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 offences punishable under Sections 354-A, 376 of I.P.C and under Section 5(m) r/w Section 6 and under Section 11(i)(ii) r/w Section 12 and under Section 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012.
Item Nos. 1 and 2 Properties in PF No.197/14 are ordered to be destroyed as worthless after appeal period is over. (Dictated to the Stenographer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 9th day of January, 2017.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
22 Spl.CC.595/14 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Nagapradeep K.S. PW.2 Prosecutrix PW.3 Prosecutrix PW.4 Gayathri PW.5 Nagini Bharana PW.6 Dr. Roopa PW.7 Dr. Naveen Kumar LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Complaint Ex.P 1(a) Signature of PW-1 Ex.P 2 Statement of PW-2 Ex.P 3 Statement of PW-3 Ex.P 4 Statement of PW-4 Ex.P 5 Statement of PW-5 Ex.P 6 Medical report of victim Ex.P 6(a) Signature of PW-6 Ex.P 7 Medical report of victim Ex.P 7(a) Signature of PW-6 Ex.P 8 Medical report of accused Ex.P 8(a) Signature of PW-7 23 Spl.CC.595/14 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-
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
*** 24 Spl.CC.595/14 09.01.2017 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 offences punishable under Sections 354-A, 376 of I.P.C and under Section 5(m) r/w Section 6 and under Section 11(i)(ii) r/w Section 12 and under Section 9(m) r/w Section 10 of 25 Spl.CC.595/14 Protection of Children from Sexual Offence Act, 2012.
Item Nos. 1 and 2 Properties in PF No.197/14 are ordered to be destroyed as worthless after appeal period is over.
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.