Bangalore District Court
State By H.A.L Police vs Eshwar on 22 September, 2016
IN THE COURT OF THE LIV ADDL., CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY (CCH-55)
Dated this the 21st day of September 2016
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
Spl.C.C.No.597/2014
COMPLAINANT State by H.A.L Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Eshwar,
Son of Late. Krishnappa,
Aged 36 years,
Residing at Kere Road,
2nd Cross,
Near Shani Mahatma Temple,
Devara Beesanahalli,
Bangalore City.
(By Sri.Mohammed Pasha.C-Advocate)
1. Date of commission of 27.9.2014
offence
2. Date of report of 29.9.2014
occurrence
3. Date of arrest of accused 30.9.2014
4. Date of release of accused
Accused is in judicial custody
5. Period undergone in One year, 11 months, 22 days
custody by the accused
2 Spl.CC No.597/2014
6. Date of commencement of 29.8.2015
evidence
7. Date of closing of evidence 6.1.2016
8. Name of the complainant Smt.Gowramma
9. Offences complained of Sec.376 of IPC and under
Secs. 5[n] r/w Secs.6 and 18 of
POCSO Act, 2012
10. Opinion of the Judge The accused found guilty for
the offences punishable
u/Sec.376 of IPC and Secs.5[n]
r/w 6 of POCSO Act.
11. Order of sentence For awarding sentence, as per
Sec.42 of POCSO Act, 2012, the
conviction passed for the
offence punishable under
Sec.5[n] r/w Sec.6 of POCSO
Act, 2012 is considered and the
accused shall under go RI for a
period of 10 years+ Rs.2,000/-
fine
3 Spl.CC No.597/2014
JUDGMENT
The Police Inspector, HAL Police Station, Bangalore has submitted charge sheet against the accused for the offences punishable Sec.376 r/w Sec.511 of IPC and under Sec. 5[n] r/w Secs.6 and 18 of POCSO Act, 2012 in Crime No.724/2014.
2. This case originally pending before L Addl. City Civil and Sessions Judge, Bangalore, CCH:51. As per the Notification PPSA (CCC) 5/2015 dated: 16.3.2015, this case been transferred from L Addl. City Civil and Sessions Judge, CCH:51 to this court [CCH:55].
3. The prosecution case, briefly stated that, on the basis of the complaint given by the complainant Smt.Gowamma, Wife of Narasimahaih on 29.9.2014 at 3 P.M., a case is registered in Cr.No.724/2014 for the offences punishable under Sec. 354A of IPC and under Secs. 7, 9[n] of POCSO Act, 2012, the sum and substance of the complaint is as under:
4 Spl.CC No.597/2014
The complainant is residing at 2nd Cross, Near Shanimahatma Temple, Devarabisanalli, Bangalore along with her family and she is doing house-keeping work. Her sister namely Smt.Rukkamma is residing in her mother's house, which is situated by the side of the complainant's house. Said Rukkamma has a daughter by name Manjula who is aged 13 years old. Smt.Rukkamma's husband namely Eshwar was not going for any job. He used to consume alcohol daily. Smt.Rukkamma was going to coolie work and she has been fostering her daughter Manjula. Said Manjula is not going to school and she has been residing in the house. Said Rukkamma, who is the sister of the complainant was bed-ridden two months prior to the date of alleged incident. Said Rukkamma's husband Eswhar did not bother about the ill-health of his wife and he continued with the bad habits of consuming alcohol. That on 27.9.2014, said Manjula [victim girl herein] was in her house, at that time, her father Eshwar [accused herein] told the victim girl that he will marry her and he asked her to sleep with him and by saying so, he forcibly held her. When the victim girl tried to scream, the accused gagged her mouth with clothes. The said incident was brought to the notice of the complainant by the victim girl. Thereafter the 5 Spl.CC No.597/2014 complainant kept the victim girl in her house. That on 28.9.2014 in the morning, the accused came to the house of the complainant and asked the complainant to send the victim girl to his house and accordingly he did galata with the complainant. The complainant by thinking that if the victim girl was sent along with the accused, then the accused may misuse her, the complainant did not send the victim girl with the accused. On the next day i.e., on 29.9.2014 the complainant gave Complaint as per Ex.P1 against the accused with regard to the fact that the accused attempted to rape his own daughter.
4. On receipt of the complaint, the PSI of the HAL Police Station registered the case in Cr.No.724/2014 and sent the FIR as per Ex.P8. Thereafter, the PSI had taken up further investigation. He has visited the spot and conducted spot mahazar as per Ex.P2. He has sent the victim girl for medical examination and he also deputed police staff to secure the accused and the accused was secured on 30.9.2014 and he [accused] was sent to the medical examination. The victim girl was taken before 19th ACMM, Banglaore, wherein she has 6 Spl.CC No.597/2014 given the statement under Sec.164 of Cr.P.C. The clothes of the victim girl were sent to the FSL. The Certificate with regard to the date of birth of the victim girl was secured. The statements of the witnesses i.e., CW7, CW8, CW12 and CW13 were recorded. Thereafter further investigation was conducted by the Police Inspector-CW17. After completion of investigation, he has filed the charge sheet.
5. The accused has been in judicial custody since the date of 30.9.2014. He is represented by the counsel of his choice.
6. After filing of the charge-sheet and after producing the accused before this court, the copies of the prosecution papers [charge-sheet] was given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
7. After hearing the leaned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in- office has framed the Charge on 9.7.2015 against the accused for the offences punishable under Sec.376 r/w Sec.511 of IPC and under Sec.5[n] r/w Secs. 6 and 18 of POCSO Act, 2012 7 Spl.CC No.597/2014 and read over the charge to the accused in the language known to him. The accused pleaded not guilty and claimed trial.
8. The prosecution in order to bring home the guilt of the accused has examined in all 14 witnesses as PWs-1 to 14 out of the total 17 witnesses Plus One FSL Officer cited as CW18 as shown in the charge-sheet and got marked the documents at Exs.P1 to P10. There are no Material Objects marked. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C is recorded. The accused has denied the incriminating evidence found in the evidence of prosecution witnesses and his defence is that of total denial and he claimed that he is innocent and further contended that, the complainant herein filed a false case colluding with Nagesh [PW3], so as to knock-off the property of the accused. However, the accused did not chosen to lead any evidence in support of his defense.
8 Spl.CC No.597/2014
9. Heard the learned Public Prosecutor and the learned counsel for the accused. The learned Public Prosecutor has relied upon the following decisions:
[1] 2009 Cri.L.J 4133 [SC] in case of Rajinder Vs. State of H.P. [2] 2002 Cri.L.J 3149 [Sikkim High Court] in case of MAdan Chettri Vs. State of Sikkim.
[3] 2006 Cri.L.J 139 [SC] in case of State of Himachal Prades Vs. Asha Ram.
[4] 1990 Cri.L.J 1434[ Himachal Pradesh] in case of Jito Vs. State of HP [5] 1998 Cri.L.J 785 in case of S.Krishna Vs. State of Karnataka.
[6] 2010 Cri.L.J 4283 [SC] in case of Satpal Singh Vs. State of Haryana [7] 1983 Cri.L.J 1096[SC] in case of Bhoginbhai Hirjibhai Vs. State of Gujarat [8] 2005 Cri.L.J 4375 [SC] in case of State of M.P Vs. Dayal Sahu [9] 2010 Cri.L.J 1655 [SC] in case of Ram Singh Vs. State of H.P [10] 2008 Cri.L.J 2038 [SC] in case of Animireddy Venkata Ramana and Ors. Vs. Public Prosecutor, H.C of A.P 9 Spl.CC No.597/2014 [11] 2009[1] Crimes 251 [Kar]SN in case of Santhosh Moolya and Anr. Vs. State through Police Circle Inspector.
[12] 2008 Cri.L.J 710 [SC] in case of Rajendra Datta Zarekar Vs. State of Goa.
[13] AIR 2013 SC 3008 in case of Ganga Singh Vs. State of Madhya Pradesh [14] 2015 [3] Crimes 152[SC] in case of Sanjeev Kumar Gupta Vs. State of UP [Now State of Uttarakhand] [15] 2008[1] Crimes 92 [SC] in case of Umar Mohammad & Ors. Vs. State of Rajasthan [16] 2015[3] Crimes 193 [SC] in case of V.K.Mishra & Anr. Vs. State of Uttarkhand & Anr.
[17] Cril.A 1331/15 and CRL.M.B.8338/15-Delhi High Court in case of Yogesh Vs. State [Govt. of NCT] of Delhi dated:4.8.2016.
[18] AIR 2010 SC 1894 in case of Utpal Das Vs. State of West Bengal.
[19] 2013 Cri.L.J 194 in case of State of UP Vs. Munesh [20] 2010[4] Crimes 666 [Calcutta] in case of Sk.Khelafat Moji Vs. State of West Bengal [21] 2012 [1] Crimes 722 [All] Salim alias Karia Vs. State of UP and Anr.
[22] AIR 2013 SC 3077 in case of Md.Iqbal & Anr. Vs. State of Jharkhand 10 Spl.CC No.597/2014 [23]AIR 1996 SC 1393 in case of State of Punjab Vs. Gurmit Singh and others.
[24] AIR 1983 SC 911 in case of Sheikh Zakir Vs. State of Bihar [25] AIR 1952 SC 54 in case of Rameshwar S/o.Kalyan Singh Vs. State of Rajasthan [26] 2007[3] Crimes 115 [SC] in case of Ramkripal S/o Shyamlal Charmakar Vs. State of Madhya Pradesh [27] 2004 Cri.L.J 4123 in case of Syed Pasha Vs. State of Karnataka.
10. As per the Charge leveled against this accused, the prosecution in this case has to prove the following Points:
1. Whether the prosecution proves beyond all reasonable doubt that on 27.9.2014 in the night hours in the house situated near Shanimahathma Temple, Devarabirnahalli, 2nd Cross, the accused being the father of the victim who is a minor girl forced her to sleep with him and thereby attempted to commit rape on her and thereby committed an offence punishable under Sec.376 r/w Sec.511 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that on the same day, time and place, the accused knowing that the victim is a minor girl being his own daughter living with him in the same house, forced her to sleep with him and attempted to commit rape on her 11 Spl.CC No.597/2014 in order to fulfill his sexual desire and thereby attempted to commit aggravated penetrative sexual assault punishable under Sec.5[n] r/w Secs.6 and 18 of POCSO Act, 2012?
3. What Order?
11. My findings on the above points are as under:
Point No.1: In the Affirmative Point No.2: In the Affirmative Point No.3: As per the final order for the following REASONS
12. POINT NOS.1 AND 2: Consideration of these Two Points are based on the same facts and evidence and therefore, to avoid repetition, these two points are taken together for discussion.
13. The prosecution case is that the accused being the father of the victim girl, forced her to sleep with him and thereby he has attempted to fulfill his sexual desire and thereby the accused has committed an offence punishable under Sec.376 r/w Sec.511 of IPC and further the accused has 12 Spl.CC No.597/2014 also committed an offence punishable under Sec.5[n] r/w Secs. 6 and 18 of POCSO Act, 2012.
14. On the other side, the defence of the accused is that, he is innocent and he has not committed any offences, as alleged against him. The complainant who is the Aunt of the victim girl, being the own sister of the wife of the accused, in order to knock-off the property of the accused, has conspired to file false complaint against this accused in connivance with PW3 Nagesh. They intended to see that by filing the complaint of this nature, the accused cannot come out of jail and thereby they can knock-off the property of the accused and accordingly, they filed false complaint against him.
15. The initial burden is on the prosecution to prove the guilt of the accused. The prosecution in order to discharge its burden examined 14 witnesses. The nature of the witnesses examined by the prosecution is as under:
Pw.1 Gowramma is the complainant
Pw.2 Victim girl [Kumari Manjula]
13 Spl.CC No.597/2014
Pw.3 Nagesh who is the brother of the complainant
and maternal uncle of the victim girl.
Pw.4 Shameem Unnisa, Head Mistress who has
issued Birth Certificate of the victim girl.
Pw.5 and Lokesh
PW6 Devraj Spot Mahazar witnesses [Ex.P2].
Pw.7 Dr.Tejaswini who conducted medical
examination of the victim girl
Pw.8 Subramanya.G.Nayak Police constable who
apprehended the accused and produced him before the PSI Pw.9 Savitha- WPC who took the victim girl for medical examination to Bowring Hospital PW10 Guruprasad.G PSI who received the complaint as per Ex.P1 and registered FIR and took up part of the investigation.
Pw.11 Dr.K.V.Sathish who conducted medical examination of the accused.
Pw.12 Ravi.R.Daashyala Police Constable deposed regarding taking of material objects to FSL, Madiwala, Bangalore.
Pw.13 Dr.Chandrashekar, Scientific Officer of FSL, who deposed about the examination of the articles.
14 Spl.CC No.597/2014Pw.14 Ashwathnarayana.C.K Police Inspector of HAL Police Station who conducted remaining part of the investigation and filed charge-sheet
16. CW4 being the son of the complainant, CW5 being the wife of CW4, CW12 and CW13 who are the police constables of HAL Police Station who apprehended the accused were not examined by the prosecution, as repetition of evidence and hence, they [CWs-4, 5, 12 and 13] were given up.
17. The description of the documents marked by the prosecution are as under:
Ex.P1 Complaint dated: 29.9.2014
Ex.P2 Spot Mahazar dated: 29.9.2014
Ex.P3 164 Statement of the victim girl dated: 1.10.2014
Ex.P4 Certificate dated: 21.11.2014 issued by the Head
Mistress regarding the age of the victim girl. Ex.P5 Medical report of the victim girl by Bowring Hospital dated: 12.11.2014 with regard to the examination of the victim girl.
Ex.P6 Certificate of Examination dated: 15.12.2014 of articles i.e., pubic hair, Vaginal Swab and Vaginal Smear [FSL Report] Ex.P7 Report dated: 12.11.2014 by the Woman Constable with regard to brining the medical examination report pertaining to the victim girl. 15 Spl.CC No.597/2014
Ex.P8 FIR dated: 29.9.2014
Ex.P9 Medical Report dated: 30.9.2014 of the accused
issued by Bowring Hospital regarding the physical examination of the accused Ex.P10 Passport pertaining to the police constable with regard to taking of articles to FSL, Madiwala, Bangalore.
18. As per the story of the prosecution, now, it has to be evaluated whether the prosecution has elicited evidence from the aforesaid witnesses to prove the guilt of the accused of the charges framed against him.
19. PW1 is the material witness in the present case being the complainant. She deposed that the victim girl is the daughter of her sister by name Smt.Rukkamma. At the time of the alleged incident, the victim girl was aged 13-14 years. The victim girl was neither going to school nor she was going to any work. The mother of the victim girl was bed-ridden. When the mother of the victim girl was bed-ridden, the victim girl was sent to her house to look after her mother, at that time, the accused herein, who was in inebriated condition, 16 Spl.CC No.597/2014 took the victim girl telling her that he will marry her and forced her to sleep with him. When the victim girl raised hue and cry, he gagged her mouth with clothes. She further deposed that when the accused dragged the victim girl, the victim girl sustained injuries on her back. Further she deposed that the accused took the victim girl to a vacant house situated in front of his house and committed rape on her. The victim girl on the next day morning at about 12 P.M., told the complainant about the rape committed on her by the accused on previous night. Thereafter on the next day morning, she [complainant] lodged a complaint as per Ex.P1. The HAL police took the victim girl to the Bowring Hospital and thereafter they came to the house of the sister of the complainant and conducted Panchanama as per Ex.P2.
20. Prosecution further examined PW2- Victim girl who is a key witness. She deposed that the complainant is her maternal aunt. She has been staying in the house. She is neither going to school nor going to any work. Her mother was 17 Spl.CC No.597/2014 doing household works and her father who is the accused herein was doing mason work. She further deposed that her father who is the accused herein used to consume liquor on everyday and he used to pick up quarrel with her mother. Further the accused told her [PW2] that he wants to marry her and get a child from her. She further deposed that one day in the night at about 1 P.M, the accused gagged her mouth with nighty and dragged her to a vacant house situated in front of his house and committed rape on her and there was injury on her back. Further she deposed that on the next day after she returned to her house, the accused again told her that he want her and he will tie Nupital thread [Tali] to her. She further deposed that she told the said acts done by the accused to her grand-mother. Her grand-mother was blind and she could not see and therefore the victim girl told the said facts to the complainant herein. Thereafter, the complainant took her to the HAL Police Station and to the hospital. Further she deposed that she was also taken to the court wherein she 18 Spl.CC No.597/2014 has given her Statement under Sec.164 of Cr.P.C, as per Ex.P3.
21. The Prosecution further examined PW3-Nagesh. He deposed that the victim girl is his sister Smt.Rukkamma's daughter. Said Rukkamma along with her husband and the victim girl were residing in a house, which belonging to his mother. As his sister Rukkamma is not having house, PW3 has given the said house for her residence. He further deposed that the victim girl was aged 14 years and she was not going to school and she used to stay in the house. The accused herein always used to pick up quarrel in the house by consuming liquor. One day the complainant Gowramma came in the evening at about 6 P.M., to his house and told him that the accused herein committed rape on his own daughter- the victim girl and thereafter PW3 and the complainant went to HAL Police Station and lodged a complaint.
22. The prosecution further examined PW4-Mrs.Shameem Unissa, Head Mistress. She deposed that as per the requisition 19 Spl.CC No.597/2014 of the HAL Police, she has issued Certificate showing the date of birth of the victim girl stating that the date of birth of the victim girl was 6.12.2000, as per the records maintained in the Higher Primary School, Devarabisnahalli, Bangalore.
23. The prosecution further examined PW5-Lokesh. He deposed that about one year back [he was examined on 15.9.2015] in between 2 to 3 P.M., the Police came and took his signature on Mahazar as per Ex.P2, but, he did not depose about the contents of the Mahazar. Therefore, the prosecution has treated this witness as hostile to the prosecution case and cross-examined him. During the course of cross-examination, it is suggested to PW5 that police came near the house of the accused in connection with the rape committed by the accused on the victim girl and conducted the Mahazar as per Ex.P2 and contents of the Mahazar are read over to PW5 and thereafter police taken the signature of PW5 on the said Mahazar. The said suggestion was denied by PW5. 20 Spl.CC No.597/2014
24. The prosecution further examined PW6-Devaraj. He deposed similarly to the evidence of PW5. He is also the signatory to Ex.P2-Spot Mahazar. He did not depose about the contents of Ex.P2. Therefore, the prosecution cross-examined him. During the course of Cross-examination, similar suggestion put to PW5 were also put to PW6. However no evidence is elicited from PW6 with regard to the contents of the Spot Mahazar as per Ex.P2.
25. The prosecution further examined PW7-Dr.Tejaswini. She deposed that on 29.9.2014 at about 6.30 P.M., HAL Police WPC No.6799 produced the victim girl aged 13 years for medical examination on the history of sexual assault by her father. She further deposed that after taking the consent for medical examination from the Aunt of the victim girl, as the victim is a minor girl, she did physical examination of the victim girl. She further deposed that on local general examination of the victim girl, her hymen was not intact and external genitelia appeared normal. Further she 21 Spl.CC No.597/2014 deposed that on local genital examination of the victim girl, evidence of signs of recent sexual intercourse present and the individual is used to an act like that of sexual intercourse. Accordingly she issued Certificate as per Ex.P5. She further deposed that injuries mentioned in Ex.P5 might have been caused if the victim girl has protested the act of the person who tried to have forcible sexual intercourse. She further deposed that she collected the specimens like Pubic hair [Item No.1], Vaginal swab [Item No.2] and Vaginal smear [Item No.3] and sent for FSL examination through police. She further deposed that after seeing the FSL report, the presence of seminal stains was not detected in Item Nos. 1 and 2 and presence of spermatozoa was not detected in Item No.3. The FSL Report is marked as Ex.P6. Further she deposed that spermatozoa and seminal stains will not be remained if the victim has passed the urine or took bath and even at the time of menstrual cycle [MC].
22 Spl.CC No.597/2014
26. The prosecution further examined PW8-Subramanya G.Nayak who is the Police Constable of HAL Police Station. He deposed that on 29.9.2014 as per the direction of PSI, he along with CW12 Ramesh who is also the Police Constable of HAL Police Station had gone to apprehend the accused. When they were in search of the accused in and around the areas of Devarabisanahalli, Kadubisanahalli and Marathahalli, they received an information from the informant and they apprehended the accused in the main road of Devarabisanahalli and brought the accused and produced before PSI at about 4.30 P.M. and gave the statement.
27. The prosecution further examined PW9 by name Smt.Savitha, WPC of HAL Police Station. She deposed that on 29.9.2014 at the instruction of PSI, she took the victim girl to the Bowring Hospital for medical examination and she produced the victim girl in between 5.30- 6 P.M., before the Doctor with requisition. She further deposed that after completion of the medical examination of the victim girl, she 23 Spl.CC No.597/2014 again brought the victim girl to the Police Station and produced her before the PSI. She further deposed that on 12.11.2014 at the instruction of the PSI, she has gone to the Bowring Hospital and she collected the Medical Report of the victim girl and sealed items and produced before the PSI along with her Report as per Ex.P7.
28. The prosecution further examined PW10 by name Guruprasad.G., PSI, of HAL Police Station. He deposed that on 29.9.2014, at about 3 P.M., when he was in the Police Station, CW1 came to the Police Station and filed a computer typed complaint as per Ex.P1. After receipt of the complaint, he registered a case in Cr.No.724/2014 as per Ex.P8 for the offences punishable under Sec.354A of IPC and under Secs. 7 and 9[n] of POCSO Act, 2012 and sent the FIR to the court and also to his higher officers. He further deposed that on the same day, he had gone to the spot shown by the complainant and the victim girl i.e., the house of the accused and he called the panchas CWs-7 and 8 and conducted the spot Mahazar as 24 Spl.CC No.597/2014 per Ex.P2. He further deposed that he has sent the victim girl along with the complainant and CW14 for medical examination to the Bowring Hospital and he deputed his subordinate police for securing the accused. CWs-12 and 13 secured the accused and produced before him. He enquired the accused and arrested him and further he deposed that after completion of medical examination of the victim girl, she was produced before him and he sent the victim girl to Bala Bhavana. He further deposed that on 30.9.2014 he has sent the accused to medical examination along with Police Constable Shivakumar with a requisition letter. After completion of the medical examination, the accused was produced before this court and remanded to judicial custody. Further he deposed that on the same day i.e, on 30.9.2014 he recorded the statements of CWs-3 to 6 and prior to that, he has sent the victim girl before the 19th ACMM Court, Bangalore for recording the statement under Sec.164 of Cr.P.C. He further deposed that on 12.11.2014 CW14 collected the articles belonging to the victim girl and medical examination report from the Bowring hospital 25 Spl.CC No.597/2014 and produced before him as per Ex.P7. He further deposed that on 18.11.2014 he sent CW15 to FSL Office for obtaining the examination of the articles seized in the present case and he has collected the birth certificate of the victim girl from CW15 as per Ex.P4. He further deposed that he has entrusted further investigation to CW17.
29. The prosecution further examined PW11 by name Dr.K.V.Sathish. He deposed that on 30.9.2014 at about 3 P.M., as per the requisition of PSI of HAL Police Station, Bangalore, he examined the accused Eshwar accompanined by Mr.Harish, PC. On physical examination and on genital examination of the accused, he found all organs of the accused were intact. Further he opined that the said person is capable of performing sexual intercourse. He has issued Certificate as per Ex.P9.
30. The prosecution further examined PW12 by name Ravi.R.Daashayal police constable of HAL Police Station. He deposed that on 18.11.2014, as per the instruction of PSI, he 26 Spl.CC No.597/2014 took the articles which were sealed to the FSL for scientific examination. The Passport given to him to go to FSL is marked as Ex.P10.
31. The prosecution further examined PW13 by name Dr.Chandrashekar. He deposed that on 18.11.2014 he examined the 3 articles sent by the Police Inspector of HAL Police Station through CW15. After examination of the articles, he opined that the presence of seminal stain was not detected in Item Nos. 1 and 2 and presence of spermatozoa was not detected in Item No.3. He issued Report as per Ex.P6.
32. The prosecution further examined PW14 by name Ashwathanarayana. C.K., Police Inspector of HAL Police Station. He deposed that on 21.11.2014 he took up the case records from CW16. He has verified the records and the investigation done till that date. He further deposed that he awaited for FSL report. As FSL report was not received and as investigation was completed, he has filed the charge-sheet for the offences punishable under Sec.376 r/w Sec.511 of IPC 27 Spl.CC No.597/2014 and under Sec.5[n] r/w Secs. 6 and 18 of POCSO Act, 2012 based on the medical examination of Dr. Tejaswini [PW7] that the hymen of the victim girl was not intact and sign of recent sexual intercourse was present. Further he deposed that on 26.12.2014 he received FSL report as per Ex.P6 and he requested this court to treat the FSL report as part of the charge-sheet.
33. On the basis of the aforesaid oral evidence led by the prosecution, the learned Public Prosecutor submitted his arguments that, the witnesses PW1 who is complainant, PW2 who is the victim girl and PW3 who is the maternal uncle of the victim girl deposed regarding the alleged incident. PW4 has given Certificate of date of birth which shows that the victim girl is a minor. Doctor-PW7 who examined the victim girl has deposed that there is evidence of signs of recent sexual intercourse present when she examined the victim girl. PW8 has deposed about securing of the accused and PW9 deposed that victim girl was taken to the Bowring hospital for medical 28 Spl.CC No.597/2014 examination, PW10 deposed about the receipt of complaint and registering of FIR, PW11 has deposed about the medical examination of the accused and hence the learned Public Prosecutor submitted that the aforesaid evidences are sufficient to hold that the accused has committed an offence punishable under Sec.376 of IPC and under Secs. 5[n] r/w Sec.6 of POCSO Act, 2012.
34. On the other hand, the learned counsel for the accused has argued that false case has been foisted against this accused by the complainant in collusion with her brother who is PW3, so as to knock-off the property of the accused. He further submitted that the complainant has cooked up false story or sexual assault by the accused and from the evidence of the prosecution witnesses it can be gathered that the witnesses have deposed falsely and thereby evidence of the prosecution witnesses cannot be reliable and also the said evidences not sufficient to convict the accused. The learned counsel for the accused has pointed out the some of the contradictions and 29 Spl.CC No.597/2014 omissions in the evidences of witnesses examined by the prosecution in support of his arguments that the evidences are not reliable, sufficient to base the conviction.
35. First of all, the learned counsel for the accused pointed out the variations in the evidence of PW1. He argued that, according to the complainant, the complaint was lodged on 29.9.2014 at about 3 P.M.. In the complaint it is stated that on 27.9.2014, when the victim girl was in her house, her father who is the accused herein on the pretext of marrying her, forced her to sleep with him and when she raised hue and cry, the accused gagged her mouth with clothes. It is further stated in the complaint that the said fact was informed by the victim girl to the complainant on that day itself. Further the complainant kept the victim girl in her house. That on 29.9.2014 again the accused came to the house of the complainant and asked her to send his daughter with him. The complainant realizing that if the victim girl is sent with that accused, then something wrong would happen, therefore, the 30 Spl.CC No.597/2014 complainant refused to send the victim girl with the accused and thereafter the complainant has lodged the complaint. Therefore, the learned counsel for the accused argued that, as per the contents of the complaint, there was no rape at all and the complainant filed the complaint on the same day i.e., on 27.9.2014, but the endorsement made in the complaint shows that, the complainant lodged complaint on 29.9.2014. Further the learned counsel for the accused argued that, in the evidence of PW1 she has deposed entirely different facts than mentioned in Ex.P1-Complaint. PW1 in her evidence not at all referred to the dates of the incident. She in her chief examination deposed that, she sent the victim girl on Saturday at 6 P.M., to her house to look after her mother, at that time, the accused who was under the influence of liquor, gagged the mouth of the victim girl with clothes and told her that he will marry her and asked her to sleep with him and he dragged her and thereby she sustained injuries on her back and further the accused dragged the victim girl to a vacant house situated in front of his house and committed rape on the victim girl. 31 Spl.CC No.597/2014 On the next day morning at 12 P.M., when the complainant came to her house, after finishing the work, the victim girl told the incident and also told that on the previous night, she was raped by her father. She further deposed that on Monday morning in between 10-10.30 A.M., she lodged a complaint. Therefore, the learned counsel for the accused argued that there is contradictory evidence given by PW1 in her deposition. According to PW1, she lodged the complaint 2 days after the alleged incident in between 10-10.30 A.M., but the endorsement on the complaint it is taken on 3 P.M., on 29.9.2014 and in the complaint there was no whisper about the rape committed by the accused on the victim girl. Therefore, the learned counsel for the accused argued that the complainant has lodged a false complaint against this accused with an intention to knock-off the property of the accused and hence, he submitted that evidence of PW1 cannot be believable.
36. The learned counsel for the accused further brought to the notice of this court that, there are material contradictions in the evidence of PW2 also. He pointed out 32 Spl.CC No.597/2014 that at the time of examination of PW2, the court has observed that, PW2 is not having maturity of mind [£ÉÆAzÀÀ ¨Á®QUÉ 14 ªÀµÀðPÉÌ EgÀ§ºÀÄzÁzÀ ¥Àæ§ÄzÀÞ ªÄ£À¹Üw E®èªÉAzÀÄ C¤¹zÀj Ý Az ]. Therefore, the learned counsel for the accused argued that, the victim girl was not in a position in to give evidence. Further, it is argued by the learned counsel for the accused that, even the statement recorded under Sec.164 of Cr.P.C before the learned Magistrate is also concocted statement as the victim girl is of not normal behaviour. However, in this case, the accused has not placed any evidence to show that, the victim girl was not having presence of mind and she is behaving abnormally or she is lunatic. In the absence of any such evidence placed by the defence, the arguments canvassed by the learned counsel for the accused that the evidence of PW2 cannot be taken into consideration, as she is not having presence of mind and she is a lunatic, cannot be acceptable. On going through the evidence of PW2, she has deposed that, her father asked her that he needs her and also needs a child from her and he dragged her in the night and committed rape on her. Further 33 Spl.CC No.597/2014 she deposed that she sustained injuries on her back. The evidence of PW2 that she sustained injuries on her back is supported with the medical evidence as per Ex.P5. On perusal of Ex.P5, the Doctor [PW7] has mentioned the external injuries found on the victim girl as under:
[1] Abrasion over the right iliac region.
[2] Abrasion over right shoulder [3] Abrasion over the forehead.
The learned counsel for the accused has cross-examined the Doctor-PW7 with regard to the said injuries suggesting that if a person falls on the hard surface, the injuries 1 to 3 mentioned in Ex.P5 may be caused. For that the said suggestion is admitted by the Doctor saying that the above injuries may be caused when a person falls on the hard surface. However, the defence has not placed any supporting evidence with regard to the said defence i.e., injuries sustained by the victim girl was due to her fell on hard surface.
Therefore, in the absence of any materials produced by the defence, this court has to accept that the above said injuries 34 Spl.CC No.597/2014 sustained by the victim girl, as deposed by her, were caused at the time of her father dragged her to a vacant house.
Therefore, the arguments canvassed by the learned counsel for the accused that injuries sustained by the victim girl was not occurred at the time of the alleged incident and it is a false story of the prosecution, is not acceptable and not sustainable.
37. Further the learned counsel for the accused argued that the mother of the victim girl who was alive at the time of the alleged incident was not examined by the prosecution. He further argued that, atleast the Investigating Officer should have mentioned during the course of investigation that the mother of the victim girl was incapable of giving any evidence. Therefore, the learned counsel for the accused argued that the complainant has given false complaint against this accused only with an intention to knock off the property of the accused. As a reply to the said submission, the learned Public Prosecutor argued that, regarding non-examination of the 35 Spl.CC No.597/2014 mother of the victim girl, during the course of evidence of victim girl-PW2 she deposed that:
" CªÀÄä¤UÉÉ ¨Á¬ÄAiÉÄà §gÀÄwÛgÀ°®è. CªÀ½UÉ D ºÁUÀÆ H C£Àß®Æ ¸À»vÀ §gÀÄwÛgÀ°®è.' Therefore, the learned Public Prosecutor submitted that the very deposition given by PW2 itself sufficient to say that mother of the victim girl was bed-ridden at the time of the alleged incident and therefore the Investigating officer has not examined her. On going through the deposition of PW2, the arguments canvassed by the learned counsel for the accused that the Investigating officer would have produced any materials with regard to the in-competency of the mother of the victim girl, is not sustainable and the said arguments of the learned counsel for the accused is not acceptable.
38. Further the learned counsel for the accused tried to bring to the notice of this court that in the evidence of PW3, he deposed that accused always used to pick up quarrel with his wife and therefore PW3 and the complainant thought of lodging 36 Spl.CC No.597/2014 a complaint against the accused. Accordingly they have lodged the complaint against the accused by falsely implicating this accused that he has committed rape on his own daughter. On going through the evidence of PW3, it is true that in the evidence of PW3, he deposed that the accused always used to picked up quarrel with his wife. Apart from the said evidence, PW3 also deposed that the accused committed rape on his own daughter. Therefore, the arguments canvassed by the learned counsel for the accused that as PW3 has deposed that the accused always used to picked up quarrel with his wife, they lodged false complaint against this accused, is not sustainable and therefore the said argument is not acceptable.
39. Further the learned counsel for the accused argued that during the course of cross-examination of PW2, she admitted that she used to hear the words of her Aunt i.e., the complainant. Therefore, the learned counsel for the accused argued that, PW2 is a tutored witness by PW1 and thereby, the 37 Spl.CC No.597/2014 evidence of PW2 cannot be believable. Further, it is argued that, in the FSL Report, it is specifically mentioned that, semen not detected and therefore, the learned counsel for the accused argued that the accused has not at all committed the alleged offences.
40. In so far as the arguments canvassed by the learned counsel for the accused that PW2 is a tutored witness, is concerned, the whole evidence of the prosecution has to be looked into. Though PW2 has deposed that she will hear the words of PW1, that sentence of evidence cannot be taken into consideration and whole evidence has to be evaluated.
41. In so far as contradictions in the evidence of PW1 to PW3 and contents of the complaint-Ex.P1 is concerned, it is true that there are some contradictions in the evidence of PW1 to PW3 and the contents of Ex.P1. It is true that, in the evidence of PW1 is concerned, i..e, in the complaint there is no whisper about rape committed by the accused on the victim girl, but, in her evidence she has stated that the accused 38 Spl.CC No.597/2014 dragged the victim girl to a vacant house situated in front of his house and committed rape on her. The learned Public Prosecutor argued that, though there is discrepancy in the evidence of PW1 that discrepancy cannot be seriously taken note of. The learned Public Prosecutor further argued that as per the Medical Report-Ex.P5 and evidence of the Doctor-PW7, there was recent sexual intercourse on the victim girl. As per the Medical Report, the hymen of the victim girl was not intact. Therefore, the learned Public Prosecutor argued that the victim girl was subjected to sexual intercourse.
42. Moreover, as per Sec.29 of the POCSO Act, 2012 there is presumption available. Sec.29 reads as under:
" Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 9 of this Act, the Special Court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved".39 Spl.CC No.597/2014
43. In this case, as per the Medical Report, the hymen of the victim girl was not intact and further in the evidence the Doctor has deposed that, when she examined the victim girl on genital examination, she found that there was sign of recent sexual intercourse. If that is so, the burden shifts on the accused to prove the rebuttal evidence of the Doctor and further the accused has to prove that he is not the cause for such act. In this case the accused has not placed any rebuttal evidence by examining any witnesses. Though the accused need not examine any independent witness to rebut the evidence of the prosecution, the accused could have elicit the evidence from the evidence of the prosecution witnesses to say that, there was no sexual assault at all and even if there was sexual assault, he is not the man who committed the sexual assault on the victim girl.
44. The sum and substance of the arguments of the learned counsel for the accused that there is delay in lodging the complaint i.e., according to the complainant, the incident had taken place on 27.9.2014, but the complaint is lodged on 40 Spl.CC No.597/2014 29.9.2014 and delay of 2 days in lodging the complaint is not properly explained, the mother of the victim girl is not examined by the Investigating Officer, in the contents of the complaint, there was no whisper about the rape committed by the accused on the victim girl, the grand-mother of the victim girl also not cited as a witness, in the FSL report no semen is detected and further the learned counsel for the accused argued that, PW1 and PW3 had an eye on the property of the accused and when the wife of the accused died, he may marry some other woman and PW1 to get rid of the accused, both PW1 and PW3 hatched a plan and conspired and filed a false complaint against the accused. It is further argued by the learned counsel for the accused that, there are material contradictions and improvements in the evidence of PW1, PW2 and PW3. Therefore, their evidence cannot be believable. Further it is argued by the learned counsel for the accused that, mahazar witnesses PW5 and PW6 they have not supported the case of the prosecution. The learned counsel for the accused has focused on the aforesaid omissions, 41 Spl.CC No.597/2014 contradictions and the inconsistency in the statements and evidences, argued that there are substantial improvements in the depositions of PW1 to PW3 and therefore, no reliance can be placed on their evidences and hence for all these reasons, the learned counsel for the accused argued that, the accused is entitle for acquittal.
45. As reply to the said arguments addressed by the learned counsel for the accused, the learned Public Prosecutor submitted that though there are material contradictions, omissions and improvements in the evidence of PW1 and PW3 in the present case, the victim girl herself examined as PW2 and her evidence is itself sufficient to convict the accused. The learned Public Prosecutor further argued that medical evidence is available and in the Medical Report, it is stated that, there was sign of recent sexual intercourse and that itself is also sufficient to convict the accused. In that regard, the learned Public Prosecutor has relied upon the aforesaid decisions. I have gone through all the decisions placed by the 42 Spl.CC No.597/2014 learned Public Prosecutor. Among those decisions, the most relevant decisions are discussed hereunder:
Regarding testimony of prosecutrix:
In the decision reported in 2009 Cri.L.J 4133, it is observed that:
"testimony of prosecutrix- Sufficient to base conviction- Contradictions not sufficient to disbelieve her evidence".
Similarly, in the case reported in 2010 Cril.L.J 1655, it is observed that:
"Rape-testimony of victim inspires confidence".
Similarly, in the decision reported in AIR 2013 SC 3077, wherein it is observed that:
"Section 376 IPC-Rape- uncorroborated testimony of prosecutrix- can be made basis for conviction".
Regarding discrepancies and contradictions in the evidence:
In the decision reported in 2015[3] Crimes 152 [SC], it is observed that:
"Appreciation of evidence-Statement given in FIR and in court-Discrepancy-Not fatal particularly when the medical evidence supports the prosecution case- such testimony held reliable, without improvement".43 Spl.CC No.597/2014
Similarly in the case reported in 1983 Cril.L.J 1096 [SC], it is observed that:
"Much importance cannot be given to minor discrepancies. Discrepancies which do not go to the root of the matter and shake the basis version of the witnesses, therefore, cannot be annexed with undue importance".
Similarly, in the decision reported in AIR 2010 Supreme Court 1894, wherein it is observed that:
" Statement of the victim in cross-examination which was not stated by her in FIR- cannot be used for contradicting her- Cannot be said that she went on making improvements".
Similarly in the decision reported in 2013 Cri.L.J 194[SC], wherein it is observed that:
"Contradictions in their statement given to police and evidence given in court trivial- rejection of their evidence and acquittal of the accused improper".
Similarly, in the decision reported in 2010 [4] Crimes 666[Cal.], wherein it is observed that:
"A statement of witness recorded under Sec.164 of Code of Criminal Procedure in rape case could not only be used either to contradict or to corroborate the maker thereof".
Regarding contents of FIR:
In the decision reported in 2008 Cri.L.J 2038,[SC], wherein it is observed that:
"Section.154 of Cr.P.C-FIR- need not be encyclopedic- considering effect of some omissions in FIR on part of informant-probable, physical and mental condition of informant, cannot be ignored".44 Spl.CC No.597/2014
Similarly, in the decision reported in 2008[1] Crimes 92 [SC], wherein it is observed that:
"It is well-settled that FIR need not be encyclopedic".
Similarly, in the decision reported in 2015[3] Crimes 193 [SC], wherein it is observed that:
"FIR neither meant to be an encyclopedia nor expected to contain all the details of the prosecution case. Unless there are indications of fabrication, prosecution version cannot be doubted merely on the ground that FIR does not contain the details".
Regarding defects in investigation: In the decision reported in AIR 2013 SC Page 3008, it is observed that:
"Investigation-Sec.376 of IPC-Appreciation of evidence- Defects in investigation-Unless they casts reasonable doubt on the prosecution case-cannot be a ground to acquit the accused".
Similarly, in the decision reported in AIR 1996 SC 1393, wherein it is observed that:
"Section. 376 of IPC-Investigating agency not conducting investigation properly or was negligent -cannot be a ground to discredit testimony of prosecutrix".45 Spl.CC No.597/2014
Regarding delay in filing FIR:
In the decision relied in 2009 [1] Crimes 251 [Karnataka] SN, it is observed that:
"Sec.376, 506 of IPC- conviction based on testimony of prosecutrix. Delay of 42 days in lodging the FIR not fatal- Medical evidence not indicating forcible intercourse, not a serious infirmity in the prosecution case-Both victims depose in their evidence about the manner in which they were subjected to forcible rape-conviction recorded by the trial court held sustainable".
Similarly, in the decision reported in 2010 Cri.L.J 4283 [SC], it is observed that:
"As honour of the family is involved, its members have to decide whether to take the matter to the court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. Ordinarily, the family of the victim would not intend to get a stigma attached to the victim".
Regarding defence of the accused i.e., false case foisted against him:
In the decision reported in 1990 Cri.L.J 1434 Himachala Pradesh High Court wherein it is observed that:
"Parents of a tender age girl cannot, at all, be expected to set up such a false case."46 Spl.CC No.597/2014
Similarly, in the decision reported in 2008 Cri.L.J. 710 [SC], it is observed that:
"Sec.375 IPC-Rape-false implication of accused-normally improbable-Rape leaves a permanent scar and has a serious psychological impact on victim and also her family members- No one would normally concoct a story of rape just to falsely implicate a person".
46. To sum up, in the present case, on consideration of evidence of PW2-victim girl, PW7-Doctor, this court is of the opinion there are no material contradictions in their evidence so as to disbelieve the story of the prosecution. Though there are minor discrepancies in the evidence of prosecutirx-PW2 i.e, her statement before the IO, 164 statement before the Learned Magistrate and the evidence before this court, because the statements were made after some interval and there is bound to be some variance in the statements, it is not fatal to the prosecution case. The testimony of PW2 is trustworthy and there is no reason to disbelieve her testimony.
47. The accused in this case though taken the defence that false case has been foisted against him with an intention 47 Spl.CC No.597/2014 to knock off the property, the accused has failed to discharge his burden and also failed to counter the medical evidence, which proves the commission of the offence. Moreover, in the evidence of PW3, he deposed that the house in which the accused has been residing with his wife and the victim girl belonged to the mother of PW3. If that is so, knock-off the property belonging to the accused by the complainant and PW3 does not arise at all. Apart from that, the accused in this case has not produced any documents to show that he is having properties of his own and these PW1 and PW3 had an eye on the properties of the accused. No materials elicited from the prosecution witnesses to prove that the accused has been falsely implicated.
48. Considering the evidence of victim girl PW2, evidence of Doctor-PW7, the prosecution in this case has proved the charge leveled against the accused beyond reasonable doubt. Further though there are contradictions and omissions and improvements, on going through the principles laid-down in 48 Spl.CC No.597/2014 the aforesaid decisions discussed in Para No.45 of this Judgment, the said contradictions and omissions and improvements cannot be seriously taken note of.
49. This court framed the Charge against the accused for the offences punishable under Sec.376 r/w Sec.511 of IPC, under Sec.5[n]. Secs.6 and 18 of POCSO Act, 2012. However, as per the Medical evidence, it is proved that there was recent sexual intercourse on the victim girl-PW2. Therefore it is found that the accused has committed sexual intercourse with PW2 and therefore the accused is found guilty of the offence of rape as defined under Sec.375 of IPC which is punishable under Sec.376 of IPC and further the accused being the father of the victim child, committed sexual assault on his child below the age of 18 years, and she has been living with him in his house and thereby has committed the offence as defined under Sec. 5[n] of POCSO Act, 2012, which is punishable under Sec. 6 of POCSO Act, 2016. Hence, I answer the above Point Nos.1 and 2 in the Affirmative.
49 Spl.CC No.597/2014
50. POINT NO.3: In view of the above discussion, I proceed to pass the following:
ORDER The accused is convicted for the offences punishable under Sec.376 of IPC and under Sec.5[n] r/w Sec.6 of POCSO Act, 2012.
(Dictated to the Stenographer partly and also directly on the computer, corrections carried out and then pronounced by me in the Open Court on this the 21st day of September 2016).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
Heard with regard to awarding of Sentence.
The accused was produced before me. On hearing the accused personally, he submitted that he is a poor person, uneducated and suffering from heart ailments, his old aged mother is there and she has lost her sight and nobody is there to look after her and therefore, he prays for taking lenient view in imposing the sentence.
50 Spl.CC No.597/2014
On the other hand, the learned Public Prosecutor has submitted that the accused has committed heinous crime against his own daughter and he is not deserve any leniency in imposing sentence. Further he has relied upon decision reported in AIR 2013 Supreme Court 3246 [State of Harayana Vs.Janak Singh] wherein it is observed that:
" Sentence bargaining not permissible in rape cases".
Hence, the learned Public Prosecutor prays for awarding the maximum sentence as contemplated under Sec.6 of POCSO Act, 2012.
In this case, the accused is convicted for the offences punishable under Sec.376 of IPC and under Sec.6 of POCSO Act, 2012.
On going through the provisions of Sec.6 of POCSO Act, 2012, it provides that:
"Whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life and shall also be liable to fine".51 Spl.CC No.597/2014
Though the accused has been convicted for the offences punishable under Sec.376 of IPC and under Sec.5[n] r/w Sec.6 of POCSO Act, 2012, on going through the provisions of Sec.42 of POCSO Act, 2012, which provides alternative punishment i.e., punishment which is greater in degree has to be considered and therefore, in this case, for awarding sentence, the offence under Sec.5[n] r/w Sec.6 of POCSO Act, 2012 is taken into consideration, as the punishment provided for the offence under Sec.5[n] r/w Sec.6 of POCSO Act, 2012 is greater in degree.
In view of the minimum punishment provided under Sec.6 of POCSO Act, 2012, this court cannot take any lenient view in imposing lesser sentence than the minimum sentence prescribed in the provision.
In so far as imposing fine is concerned, the accused himself submitted that he is a poor man having no income or any movable or immovable properties. The prosecution has not produced any documents/materials to show that, the 52 Spl.CC No.597/2014 accused is having sufficient income, movable and immovable properties and thereby he is capable of paying huge fine amount and to pay compensation to the victim girl. Under these circumstances, in the absence of any materials placed with regard to the income of the accused and his capacity to pay the fine and the compensation amount, lenient view is taken in imposing the fine amount.
Considering the background of the accused i.e., his ill-health, his education, his old aged mother and further also considering the crime committed by him against his own daughter, I proceed to pass the following:
SENTENCE The accused shall undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.2,000/- for the offence punishable under Sec.5[n] r/w Sec.6 of POCSO Act, 2012. In default of payment of fine amount, the accused shall undergo simple imprisonment for a period of Two Months.53 Spl.CC No.597/2014
The period of detention undergone by the accused in judicial custody shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
Office is directed to supply the free copy of this Judgment to the accused forthwith.
(Dictated to the Stenographer directly on the computer, corrections carried out and then pronounced by me in the Open Court on this the 22nd day of September 2016).
[RAJESHWARI.N.HEGDE] LIV Addl., City Civil & Sessions Judge, Bangalore.
That on 21.9.2016, the learned Public Prosecutor filed application under Sec.357, 357[A] r/w Rule 7 of POCSO Act, 2012, praying for awarding compensation to the Victim girl. On perusal of the application, the Inspector of Police of HAL Police station he is directed to keep the Victim girl before the court along with the report about the present position of the Victim girl with supporting documents if any so as to consider the victim compensation.
[RAJESHWARI.N.HEGDE] LIV Addl., City Civil & Sessions Judge, Bangalore.54 Spl.CC No.597/2014
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Gowramma CW1 29.8.2015
Pw.2 Victim girl CW2 29.8.2015
[Kumari Manjula]
Pw.3 Nagesh CW3 29.8.2015
Pw.4 Shameem Unnisa CW11 15.9.2015
Pw.5 Lokesh CW7 15.9.2015
Pw.6 Devraj CW8 15.9.2015
Pw.7 Dr.Tejaswini CW9 1.10.2015
Pw.8 Subramanya.G.Nayak CW13 6.11.2015
Pw.9 Savitha CW14 6.11.2015
PW10 Guruprasad.G CW16 6.11.2015
Pw.11 Dr.K.V.Sathish CW10 21.12.2015
Pw.12 Ravi.R.Daashyala CW15 21.11.2015
Pw.13 Dr.Chandrashekar CW18 6.1.2016
Pw.14 Ashwathnarayana.C.K CW17 6.1.2016
Documents marked for the prosecution:
Ex.P1 Complaint PW1 29.8.2015
Ex.P1[a] Signature of PW1 PW1 29.8.2015
Ex.P1[b] Signature of PW10 Pw10 6.11.2015
Ex.P2 Panchanama PW1 29.8.2015
Ex.P2[a] Signature of PW1 PW1 29.8.2015
Ex.P3 164 Statement of the PW2 29.8.2015
victim girl
Ex.P4 Certificate issued by the PW4 15.9.2015
Head Mistress regarding
the date of birth of the
victim girl.
Ex.P4[a] Signature of PW4 PW4 15.9.2015
Ex.P2[b] Signature of PW5 PW5 15.9.2015
55 Spl.CC No.597/2014
Ex.P2[c] Signature of PW6 PW6 15.9.2015
Ex.P2[d] Signature of PW10 PW10 6.11.2015
Ex.P5 Medical report of the PW7 1.10.2015
victim girl
Ex.P5[a] Signature of PW7 PW7 1.10.2015
Ex.P6 FSL Report PW13 6.1.2016
Ex.P6[a] Signature of PW13 PW13 6.1.2016
Ex.P6[b] Sample seal PW13 6.1.2016
Ex.P6[c] Signature of PW14 PW14 6.1.2016
Ex.P7 Report PW10 6.11.2015
Ex.P7 [a] Signature of PW9 PW9 6.11.2015
Ex.P7[b] Signature of PW10 PW10 6.11.2015
Ex.P8 FIR PW10 6.11.2015
Ex.P8 [a] Signature of PW10 PW10 6.11.2015
Ex.P9 Medical Report of the PW11 21.12.2015
accused
Ex.P9[a] Signature of PW11 PW11 21.12.2015
Ex.P10 Passport PW12 21.12.2015
Witness examined and documents marked for the accused:
- Nil -
LIV Addl., City Civil & Sessions Judge, Bangalore.56 Spl.CC No.597/2014
21.9.2016 Accused produced from judicial custody.
Judgment pronounced in open court:[ Vide separate detailed Judgment] The accused is convicted for the offences punishable under Sec.376 of IPC and under Sec.5[n] r/w Sec.6 of POCSO Act, 2012.
To hear regarding quantum of sentence.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
57 Spl.CC No.597/201422.9.2016 Accused produced from judicial custody.
Heard the accused personally and the learned Public Prosecutor on awarding sentence. He has relied upon the decision reported in AIR 2013 Supreme Court 3246. After hearing both sides and after going through the afore said decision, and after going though the provision of law, though the accused is convicted for the offences punishable U/sec.376 of IPC, Sec.5(n) r/w 6 of POCSO Act, as provided U/sec.42 of POCSO Act which provides alternative punishment i.e., punishment which is greater in degree has to be taken into consideration. In this case, punishment provided for the offence U/sec.5(n) r/w sec.6 of POCSO Act is greater in degree and accordingly, I proceed to pass the following:
SENTENCE The accused shall undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.2,000/- for the offence punishable under Sec.5[n] r/w Sec.6 of POCSO Act, 2012. In default of payment of fine amount, the accused shall 58 Spl.CC No.597/2014 undergo simple imprisonment for a period of Two Months.
The period of detention
undergone by the accused in
judicial custody shall be set-off
against the term of imprisonment
imposed on him, and the
accused shall undergo the
remaining sentence as provided
under Sec.428 of Cr.P.C.
Office is directed to supply the
free copy of this Judgment to the
accused forthwith.
[RAJESHWARI.N.HEGDE]
LIV ADDL., CITY CIVIL
& SESSIONS JUDGE,
BENGALURU CITY.
Yesterday i.e., on 21.9.2016, the learned P.P. filed an application U/sec.357, 375(A) r/w rule 7 of POCSO Act and prays for awarding compensation to the victim.
Perused the application. The PI of HAL Police Station is directed to keep the
Victim(Pw.2) before the court along with Report 59 Spl.CC No.597/2014 with regard to her present situation and supporting documents if any, so as to consider the victim compensation.
Call on 27.09.2016.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.