Bangalore District Court
State By Koramangala Police vs Nagesh Prabhu Bamanpad on 22 March, 2018
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the 19th day of March, 2018.
Present: SMT.YADAV VANAMALA ANANDRAO., B.Com. LL.B.[Spl.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO.373/2015
COMPLAINANT: State by Koramangala Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Nagesh Prabhu Bamanpad,
Son of Prabhu,
Aged 26 years,
Residing at No.17/4, 8th Block,
Koramangala, Bangalore.
Permanent Resident of:
Cintrumkeri Tandya,
Near Bus Stop, Shivajinagar Village,,
Mundaragi Taluk,
Gadag District.
[By Advocates Sri. N.R.Naik and
Associates]
1. Date of commission of offence 13.3.2015
2. Date of report of occurrence of 14.3.2015
the offence
2 Spl CC No.373/2015
3. Date of arrest of accused 14.03.2015
4. Date of release of accused [bail] 28.04.2015
5. Period undergone in custody by 1 month, 14 days
the accused
6. Date of commencement of 6.4.2016
evidence
7. Date of closing of evidence 8.2.2018
8. Name of the complainant Victim girl
9. Offences complained of Secs. 323 and 354(A) of IPC
and under Sec.8 of POCSO
[as per the charge-sheet]
Act, 2012
10. Opinion of the Judge As per the final order
JUDGEMENT
The Police Inspector, Madivala Police station has filed charge-sheet against the accused for the offences punishable under Secs. 323 and 354(A) of IPC and under Sec.8 of POCSO Act, 2012
2. Gist of the prosecution case is that:
The complainant/victim girl/CW1/PW3 who was aged about 15 years lodged a complaint alleging that, when she was proceeding on the road at 8th block, Koramanagala, near Indoor Stadium gate, NGV, on 13.3.2015 at about 12.30 Noon, the accused suddenly came there and took up quarrel with her and caused hurt to her by hand and touched her breasts and other parts of the body with a sexual intent and thereby the accused 3 Spl CC No.373/2015 outraged her[victim girl] modesty and committed sexual assault on her and caused simple injuries and hence, the complainant police have registered a case in Cr.No.187/2015 for the offences punishable under Secs. 323 and 354(A) of IPC and under sEc.8 of POCSO Act, 2012. The Investigating Officer has undertaken investigation and collected materials and filed charge-sheet against the accused. Cognizance was taken. After the crime stage itself, accused was granted with bail.
3. Initially this case was made over to this court CCH:55. As per the Notification, No. ADM-I (A)/ 614/2017, of the Office of the city Civil Court, Bengaluru, dated:4.8.2017 with effect from the afternoon of 5.8.2017, now, the case is before this Child Friendly Court, Bengaluru Urban District, for disposal.
4. The accused who is on bail, is represented by the counsel of his choice. After appearance of the accused, the copies of the prosecution papers [charge-sheet] was furnished to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5. After hearing the learned Public Prosecutor and the learned counsel for the accused, this court has framed the Charge on 22.12.2015 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed the trial.
4 Spl CC No.373/20156. To prove the case, the prosecution has examined PWs-1 to 9 witnesses, out of total 13 charge-sheet witnesses and placed reliance on Exs.P1 to P10 documents. After closing of the prosecution side evidence, statement of the accused under Sec.313 of Cr.P.C has been recorded. The accused has denied the incriminating evidence available against him, but, he has not chosen to adduce his defence evidence.
7. Heard the arguments of the learned Public Prosecutor and the learned counsel for the accused. Perused the oral and documentary evidence and the record on hand. Following Points are formulated for consideration:
1. Whether the prosecution has proved beyond all reasonable doubt, on 13.3.2015, at about 12.30 Noon, when the victim girl/CW1/PW3 was proceeding on the road at 8th Block, Koramangala, near Indoor Stadium, NGV, the accused suddenly came there and took up quarrel with the victim girl and caused hurt to her hand and touched her breast and other parts of the body, with a sexual intent, thereby the accused committed sexual assault on the victim girl, for the offence punishable under Sec.8 of POCSO Act, 2012?
2) Whether the prosecution has proved beyond all reasonable doubt that, on the same date, time and place, when the victim girl/CW1 was proceeding on the road, the accused suddenly came there and took up quarrel with the victim girl and caused hut to her hand and touched her breasts and other parts of the body and thereby the accused outraged the modesty of the victim girl and he has committed an offence punishable under Sec. 354(A) of IPC?
5 Spl CC No.373/20153) Whether the prosecution has proved beyond all reasonable doubt that, the accused on the same date, place and time, when the victim girl/CW1 was proceeding on the road, the accused caught hold of her hand and caused simple injuries to the victim girl/CW1, thereby the accused have committed an offence punishable under Sec.323 of IPC?
4) What Order?
8. My findings on the above points are as under:
Point Nos.1 and 2: In the AFFIRMATIVE Point No.3: In the NEGATIVE Point No.4: As per the final order, for the following:
REASONS
9. POINT NOS.1 TO 3- As these Points are inter-linked to each other, they are taken up for common discussion to avoid repetition of facts. It is the specific case of the prosecution that, "the complainant/victim girl/CW1/PW3 who was aged about 15 years, when she was proceeding on the road at 8th block, Koramanagala, near Indoor Stadium gate, NGV, on 13.3.2015 at about 12.30 Noon, the accused suddenly came there and took up quarrel with her and caused hurt to her by hand and touched her breasts and other parts of the body with a sexual intent and thereby the accused outraged her[victim girl] modesty and committed sexual assault on her and caused simple injuries". Hence, the prosecution has to discharge its initial burden and only when it is discharged, the presumption under Secs.29 and 30 of POCSO Act, 2012 can be raised, as it is Special Act governing the 6 Spl CC No.373/2015 sexual assault/sexual harassment against the children below the age of 18 years. In the present case, the age of the victim girl as asserted by the prosecution was 15 years, as on the date of the incident. Therefore, whether the prosecution is able to discharge its burden is a question to be considered on the basis of the available evidence on record. If the prosecution has discharged the burden, then it would shifts on the accused to rebut these presumptions. At this juncture, it is relevant to rely upon the decisions referred by the learned Public Prosecutor regarding:
(a) Presumption under Sec. 29 of POCSO Act, 2012. Hence falling under Sec.7 of POCSO Act, 2012 etc., reported case laws are:
"(2017) 1 SCC (Cri) 678 or (2017) 2 SCC 178 [State of Bihar Vs. Rajbakar Prasad]: Presumption under Sec.29 of POCSO Act, 2012: Exercise of discretion by the Hon'ble High Court.
Relevant consideration- Principles summarized-offences involving statutory presumption of guilt-General presumption of innocence of accused not applicable to cause where there is contrary statutory presumption of his guilt such as when prosecuted under Secs. 3, 5, 7, 8 and 9 of POCSO Act, 2012.
"2017(2) Crimes 15 (Cal) Bijoy @ Gudda das Vs State of West Bengal".Under Secs. 7 and 8 of POCSO Act, 2012: Offence would not only extend to touching of vagina of victim, but, also touching of any part of her body with a sexual intent- Appellant caught victim form behind and touched private parts- PW7 doctor deposed that, victim and her mother-PW2 had reported that appellant had touched her thigh. Evidence of victim and her parents was however consistent that the accused touched vagina of victim- conviction was not to be interfered with appellant who was aged about 19 years and not have any criminal antecedents- Sentence reduced to three years from 5 years.7 Spl CC No.373/2015
(b) With reference to delay in filing the complaint and effect and consequences, reported case law is:
"2017(2) Crimes 149 (A.P.) High court of Judicature at Hyderabad for the state of Telangana and the State of A.P. [Bheemagouda and others Vs. State of A.P]: Delay in lodging the FIR will not be fatal to the case of the prosecution in every case The totality of the fact and circumstances of the case has to be taken into consideration before looking into its consequences to the prosecution.
(c) Regarding appreciation of evidence of victim as sole evidence and evidence of other material witnesses and plea of defence raised by the accused, reported case laws are:
"2003(1) Crimes 357 (Kant) [H.Chandrakantha Vs. State of Karnataka.] If the prosecutrix is believed to be a truthful witness, no further corroboration may be insisted. "
"2014 (1) Crimes 175 (kant.) [State by Jagalpur PS. Vs. Eashappa]. In a rape case, evidence of victim girl stands on higher footing.
"2014(4) Crimes 226 ( Ori) Santhosh Bhai Vs. State of Orissa]. Sexual Assault : In the Indian setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as per rule, is adding insult to injury.
"2016(4) Crimes 41 (SC):- Evidence of the sole witness having a reason to depose falsely against the appellant/accused, should be relied upon.
"2003 Cril.L.J 3548(SC]: Solitary witness:- It is the quality and not the quantity of evidence which is necessary for proving or disproving of fact"8 Spl CC No.373/2015
"2000 Cri.L.j 1417 SC. [Ranadhir Babu Vs. State of West Bengal.] While deposing before the session court, are not improvements of such a nature as would create any doubt- regarding the truthfulness".
"2017 (1) Crimes 13 SC :- .Minor discrepancies in evidence of a witness cannot affect prosecution case "2001 SCC (Cri) 1504 [Chandrashekar Bhat Vs. State of Maharasthra]. Appreciation of evidence: Marginal variation between the statements of the prosecution witnesses recorded under Sec.161 of Cr.P.C and testimony given in court- cannot be said to be improvements-made with any sinister motive and cannot be dubbed. No Public Prosecutor can be nailed to the statement recorded under Sec.161 of Cr.P.C"
"2003(1) Crimes 28, 2003(3) Crimes 272 SC:- Exaggerated devotion for the sake of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that 100 guilty escape than punish an innocent, letting the guilty escape in not doing justice according to law. Prosecution is not required to meet every hypothesis put forward by accused. Proof beyond doubt is a guideline and not a fetish fair doubt based on a common sense".
With due respect to the said decisions, the principles and guidelines are considered in relation to the facts and circumstances of this case.
10. The prosecution has adduced the evidence of victim girl who is the complainant as PW3. The mother of the victim girl-CW4 is reported to be dead. The brother of the victim girl/CW5 deposed as PW2.
9 Spl CC No.373/201511. PW3 in her evidence has stated about the relationship with the accused and her family members that, the accused is her brother-in-law [her sister's husband]. She has specifically stated that, her elder sister Shobha is the wedded wife of the accused and at the time of their marriage, her father was alive and her sister and her brother-in-law[accused] was residing in Bangalore. About her second elder sister by name Shruthi, she [PW3] disclosed that, the accused had taken her [Shruthi] to his house, as his [accused] mother was ill and thereafter, he kept her sister]Shrtuhi] in his house without marrying her and leading marital life with her and in this connection, my learned Predecessor-in-Office has referred the condition of the victim girl while she was deposing in this regard that, she was throbbed (£ÉÆAzÀÄPÉÆAqÀÄ) and was weeping. She [PW3] further deposed that, her brother [PW2] was vegetable seller and she along with her mother, her elder brother [PW2] and her younger brother were residing in Koramangala. She used to go to a house situated in NGV Apartments at Koramangala to take care of a child. Her elder brother used to bring her lunch everyday in the afternoon, but, on the date of incident i..e, on 13.3.2015, since her brother did not bring the lunch, hence, she was coming near NGV Stadium on foothpath by taking her lunch at 12.30 P.M., at that time, the accused came from opposite direction and stopped her and started to abuse her and touched her chests and kissed her and specially she has stated that, he touched her breast portion by showing her hands. She further deposed that, at that time, she shouted loudly and the accused assaulted her with his hands and that the 10 Spl CC No.373/2015 security guards who were there near the NGV gate came to the spot and she was pushing the accused. The security guards rescued her from the accused. Because of shock of that incident, she did not go to the work and stayed back at home and intimated about the act of the accused and his threat of killing her, etc., to her brother and mother and they [her brother and mother] went to the house of the accused and on enquiry in that regard, the accused assaulted them and by showing knife, he gave life threat to them and the same was intimated to her by her brother and mother.
12. About non-filing of the complaint on the same day and also about behaviour of the accused, she [PW3] expressed that, she was afraid because of his [accused] assault on her and touching her private parts and kissing her. She was afraid because, the accused would do as he had done with her sister Shruthi and take her [victim girl/PW3] also to his house and keep her [PW3] as he had kept her sister Shruthi and felt annoyed and she did not go anywhere and stayed in the house only. But, on the next date, she went to Koramangala police station and narrated the incident. As the police directed her to give the complaint in type-written and hence, she has filed the typed complaint, which is identified by her as Ex.P2[ her signature is Ex.P2(a). This explanation has not been rebutted by the accused. She [PW3] is firm about her statement that, due to fear, she did not lodged the complaint on the same day. So also her brother [PW2] supported her version that, on that date of incident, she was under shock 11 Spl CC No.373/2015 (£ÀÉÆAzÀÄPÉÆArzÀ¼Ý ÀÄ). Hence, on the same day, complaint was not filed. So, the plea of the delayed FIR does not sustain.
13. PW3 has stated about investigation process and her assistance that, after filing of the complaint, the police came to the spot of incident and she showed the place of incident. Hence, mahazar was drawn as per Ex.P3 (her signature is as per Ex.P3(a)]. She was also sent to the hospital for medical examination. Apart from this, the police took her to Learned Magistrate for recording of Sec.164 of Cr.P.C, which is marked at Ex.P4 [her signature is at Ex.P4(a)]. After the incident, she has stated what was the condition of her [PW3] family and herself with her mother and younger brother left Bangalore and went to their native place and her brother [PW2] also left the house in Koramangala and shifted to some other place and residing in a room. Thereafter, her mother died and her younger brother is residing with her grandmother and she is residing in her uncle son's house at Hubli. In order to give education to her younger brother, she is attending the house work to earn money. She had intention to continue the education. But, because of these problems, she cannot continue the education etc. But, her alleged avocation spoken to by her was that, she was doing work of looking after the child in an apartment located in NGV, Koramangala which is prior to the said incident and she did not tell that, she was intending to continue her education. In her cross- examination, what is elicited from her mouth is that, her[victim girl] father of died in Goa; Her elder sister's marriage with the 12 Spl CC No.373/2015 accused was done at Goa; It was love marriage; After the death of father of PW3, the accused brought them from Goa to a house at Koramangala [in the given address] to Bangalore; Prior to it, her elder brother and her IInd elder sister Shruthi were already residing in the house of the accused. After their arrival, they came to the said house. After some days, Shruthi went to the house of the accused; She denied the fact that a kidnap case was filed against the accused. But, this fact was admitted by PW2[her brother]. According to her [PW3] it was missing complaint; In that regard, police were called the victim and the accused. She [PW3] said her mother expressed the suspicion and named the accused; At that time, Shruthi was also called upon to police station. It was suggested that, they [Pw3 and her family members] did not take Shruthi along with them, but, she explained that, the accused did not send her [Shruthi] with them and they were ready with tickets to take her to their native place. To the suggestion that, police after conciliation, sent her sister [Shruti] with the accused, PW3 stated that, Shruti did not come with them, hence, police sent her with the accused. It is also revealed from the cross-examination of PW2 about the strained relationship due to stay of their sister Shruti with the accused. It was questioned that, 20 to 25 days prior to this incident, there was a police case and it was compromised, PW2 answered that, as the accused abused at his mother in filthy language and attempted to assault him with a stone. He too attempted so against the accused. It was mixed suggestions made to this witness [PW2] about the police case of said incident due to abusing at mother of PW2 and kidnap case of sister Shruti and the sexual assault of the victim girl, at Page No.3 13 Spl CC No.373/2015 of cross-examination of PW2 and hence, gist of each incident to be considered carefully. It was asked after the incident of abuse of the accused at the mother of PW2, then his mother went to their native Gadag and missing complaint was lodged against the accused; police tried to resolve their dispute about Shruthi's case. They are admitted. But, he [PW2] has specifically answered while putting suggestion that, they did not take Shruti with them on the efforts made by the police that, the accused was blackmailing her and she did not come with them [PW2}. Thus, from these admitted facts, no doubt it is evident that, there was strained relationship between the accused and victim-PW3, her brother [PW2] and her family, with reference to stay of their sister Shruti with the accused in his house. But, the offence was committed. There may be some extent of exaggeration. However, the court has to weigh the evidence on record carefully in criminal case which the child [below the age of 18 years] is involved.
14. PW2 in his evidence has deposed that, CW1 is his sister and CW4 is his mother; the accused is the husband of his elder sister[Shoba] and they are residing in 8th Block at Koarmangala and they [PW2 and his family] are also the residing in the same block near Shiva Theatre and his [PW2] another sister is Shruthi. The accused has taken his sister Shruthi to his house and kept her in his house. The victim girl is his another sister and she used to go to Koramangala, NGV to a house, to look after a child and she used to go for work at 7 A.M., in the morning and used to return by 8 P.M., in the night, which is not in dispute. On 13.3.2015, as usual, he [PW2] had gone to sell the vegetables and 14 Spl CC No.373/2015 came back by 1 P.M. to the house. At that time, his sister/victim girl came weeping to the house, when he enquired with her, she told that, at about 12.30 P.M., when she was proceeding near Indoor Stadium, NGV the accused came there and caught hold of her hands and touched her chests, stomach, back (¨É£ÀÄß) and other parts of the body and abused her in filthy language and the accused tried to commit rape on her, since there were nobody to question him, for about 10 to 15 minutes, the accused dragging her, at that time, she [victim girl] screamed and the security guards who were there came and rescued her and asked her to go to her home. Therefore, his sister/victim girl came to the house and she felt very bad and slept by weeping. So, on the next day, he [PW2], his mother and his sister/victim girl went to the police station and lodged a complaint. The police enquired with him. Next day of lodging the complaint, the accused had come to their house and threatened to kill them. At that time, the age of his sister/victim girl was about 17 years. PW2 has further deposed that, the accused had kept his [PW2] another sister by name Shurti in his house and that he [accused] had told the victim girl at the place of incident that, he will keep her[victim girl] also in the manner as he had kept Shurti and thereafter the accused had given life threat to him and his family after filing of complaint. He has firmly stated about the sexual assault of the accused, as it was narrated by the victim girl to him. So, Sec.6 of Evidence Act is attracted. His evidence regarding assault by the accused, touching the body parts and private parts narrated by PW3 is supporting the prosecution case and Secs. 29 and 30 of POCSO Act, 2012 shall be 15 Spl CC No.373/2015 attracted. Hence, court shall presume under Secs. 29and 30 of POCSO Act, 2012 that, the accused had committed the sexual assault and harassment under Sec.7 of POCSO Act, 2012 and Sec.354A(1)(i) of IPC.
15. The direct witness referred is CW6 who deposed as PW5, but the evidence of the other direct witness CW7 has been dropped. CW6 Jadukumar deposed as PW5. He is the security guard working at NGV front gate, at Koramangala. There are 2 security guards at that place. He has stated about the incident on that day before the police under Sec.161 of Cr.P.C, he deposed that, he had seen the accused and also the victim girl and that, the victim girl was going to work in an apartment. But, he turned hostile and in the chief examination, he deposed that, about one week back at 12.30 P.M., two girls were talking with each other and proceeding through the said gate and went out of the gate. At that time, he was outside the security room; and at that time, the wife of the accused and the victim girl were quarreling with each other and public gathered there; CW7 who is another security guard of that place intimated him [PW5] to pacify the quarrel and send them away from that place; Hence, he [PW5] went there and intimated them not to make galata. Inspite of this, without hearing his words, they continued their quarreling; then the accused came there and asked them about the quarrel and pacified it and took his wife from that place and the victim girl went from that place; and Apart from these things, he [PW5] did not know anything and the police asked him to put his signature and hence, he put his signature on a document.
16 Spl CC No.373/201516. Thus, this witness [PW5] turned hostile to the prosecution case. The learned Public Prosecutor got him declared as hostile witness and put suggestion regarding the incident, as he was there at that time and prosecution arrayed him as an eye-witness. He denied the suggestion that, on the said date of incident, the accused came there and talked with the victim girl and assaulted her with hands and took out quarrel with her and pulled her; and this witness and CW7 pacified the quarrel and the accused went from that place and the victim girl also went away; and in this connection, he gave statement before the police as per Ex.P5. It is suggestion put to this witness that, the said quarrel was in between the accused and the victim girl and he is deposing falsely that, it was not the quarrel in between the victim girl and the wife of the accused. It is pertinent to note that the defence that, the quarrel was between PW3 and Shurti on that incident date, place and time and then the accused came there and pacified it etc., has not at all asked to the victim girl during her evidence, when she spoken specifically about molestation at that isolated place. The accused ought to have given his say at the time of his statement recorded under Sec.313 of Cr.P.C or adduced his rebuttal evidence. He ought to have explained why Shruthi [sister of PWs-2 and 3] was residing with him and what was the reason and relationship between them when he has Ist wife alive, to believe that he was innocent and it was false implication.
17. It is notable point that, it is the specific reference made by the prosecution regarding the status of the accused that he was married and he had kept the sister of his wife and it is stated by 17 Spl CC No.373/2015 the victim girl that he kept her 2nd elder sister Shruthi without marrying her and leading marital life. This has not been denied and rebutted by the accused It is revealed at the time of cross- examination of PW3, which was not suggested to PW2 as one of the defence that, as the elder sister [Shobha] married the accused against the family of the victim and all of them did not go to the marriage of her elder sister and the accused and because her brother [PW2] and the accused were running vegetable shops in the same area in the evening [adjoining to each other] as business rivals, and hence the false complaint was lodged. She denied it. But, this suggestion was not posed to PW2 who was also a competent person to say on this aspect. The accused did not lead evidence, not stated in his statement recroded under Sec.313 of Cr.P.C.
18. Even a single word put to PW3 that the quarrel at that spot was with her sister-Shruti and then the accused pacified it, what is stated by PW3 in her 164 Statement [which is not contradicted to PW3 and that it is not sole piece of evidence], the accused molested her at that place of incident and time, and it was the arrival of the accused, when nobody was there. The relevant portion of Ex.P4 reads thus:
"The accused came near the main gate of NGV and all of a sudden kindled me and pulled my dupatta and touched my breast forcibly and also hold my face and cheek."
It is notable point that in that she has stated further that:
"By that time, my 2nd sister by name Shruthi who is also residing with my elder sister and brother-in-law to the spot. Both of them assaulted me. Because of which , I shouted for 18 Spl CC No.373/2015 help. The security guards at the gate rescued me. Hence, I lodged the present complaint".
But, her [PW3] evidence given on oath in the witness box is corroborated that the accused came and committed the offence at the place of incident being not rebutted by the accused with cogent evidence as discussed above. It supported the prosecution case that, at that particular point of time, PW3 was alone and the accused came and sexually assaulted her, as they both were only there. On this count also, the prosecution has discharged initial burden, presumption shall be raised under Secs. 29 and 30 of POCSO Act, 2012.
19. The spot mahazar witnesses are CWs-2 and 3. CW3 deposed as PW4, so, the evidence of CW2 has been dropped. PW4 has deposed that, he is the relative of the victim girl and also the accused. He [PW4] is doing the business of Bajji-bonda in NGV Complex. When he was going to do his business near Indoor Stadium gate, at 4 P.M., on 14.3.2015, the Koramangala police called upon him and a girl was accompanied them. This witness identified the girl who was present before the court on the date of recording of her evidence on 5.10.2016. He has stated that, the police asked him to be the panch witness to the spot maahzar as one boy had done something on the said girl and the said girl had shown the spot and mahazar was drawn as per Ex.P3 and [PW4] put his signature as per Ex.P3(b). Thereafter, securing permission, the learned Public Prosecutor treated his witness as partial hostile witness in connection with the presence of another 19 Spl CC No.373/2015 panch witness and drawing of mahazar as per Ex.P3. He said spot was shown by the victim girl. He has clearly admitted that, the accused as his relative. The learned defence counsel cross-examined this witness. PW4 has disclosed that, the accused is the grand-son of his uncle and the victim girl is the daughter of his [PW4] own sister. Thus, it is relevant that, he is the close relative of both the victim girl and the accused. During his cross-examination, he has specifically stated that, the police did not give any notice to be as panch witness to Ex.P3. But, the mahazar was conducted in the evening in between 4 p.m., to 5 p.m., and the spot was shown by the victim girl and it was drawn by the Investigating Officer. It is also come on record that, there was no strained relationship between himself PW4] and the accused. Lastly suggestion put to him was that, "he was not at the spot and that he put his signature in the police station". He has denied it. Thus, from the evidence of this witness, it is clear and unequivocal evidence supporting Ex.P3, that the spot mahazar was conducted by the Investigating Officer on that day, as the spot was shown by the victim girl and thus, the contents of Ex.P3, through this witness are duly proved, which has also been deposed by the Investigating Officer i.e., PW9 [CW13] that he had duly conducted it as per Ex.P3.
20. The prosecution has adduced the evidence of CW9/ Head Master of C.S.Patil High School, Gadag as PW7, wherein the victim girl was studying. He [PW7] has issued attested copy of the School Register 2 in numbers as per Exs.P7and P8 and he has identified his signatures at Ex.P7(a) and Ex.P8(a). According to 20 Spl CC No.373/2015 the School Records, the date of birth of the victim girl was 10.6.2000. In this connection, the Investigating Officer has issued Requisition as per Ex.P9 and it was received by this witness and he identified his signature at Ex.P9(a). Much has been made out during the cross-examination of this witness by the learned defence counsel that, the victim girl was admitted to the said school when she was 6th standard and she [victim girl] left the school after completion of 7th standard. The date of birth of the victim girl recorded in the School Record was from the period of receiving the school certificates of the earlier school of the victim girl. Hence, he [PW3] is unable to say what were the documents received b y the earlier school etc. He denied that the documents issued by him declaring the date of birth of the victim girl as 10.6.2000, was not at all the genuine document showing her real date of birth. But, it is only suggestion of the defence that, it was not the proof of date of birth of the victim girl as authenticated documents. Hence, only denial and suggestions in this regard to PW7 do not sustain and it does not come to the aid of the accused to discard the authenticated documents-Ex.P7 and Ex.P8 issued by the competency person-PW7. Hence, it is proof of date of birth of the victim girl showing her age not more than 18 years. Thus, prosecution has proved the status of the victim girl placing reliance on the School Records that, the victim girl is coming within the purview of definition Clause of 'Child' below the age of 18 years.
21 Spl CC No.373/201521. The Doctor-CW8 deposed as PW1 regarding the medical examination of the victim girl. She has stated on oath that, on 14.3.2015 at about 7.50 P.M., the victim girl aged about 17 years accompanied with her mother was referred for medical examination on the history of molestation by her [victim girl] brother-in-law on 13.3.2015 at about 12.30 P.M. On her [victim girl] physical examination, she found single scratch abrasion placed vertically over the middle of chest and opined that, the said injury is simple and fresh and in that regard she has issued Certificate as per Ex.P1. She further opined that, if any person touches the chest of a girl by force such injury may be caused. Fresh injury means it was caused within 12 hours prior to examination of victim girl. It is also pertinent to note that, the incident was taken place on 13.3.2015 at about 12.30 P.M. But, the records of the Doctor-PW1 as referred above, revealed the examination done on the victim girl as per Ex.P1. So, causing the said injury simple in nature, creates doubt whether it was caused at the time of the incident. Hence, it does not come to the aid of prosecution that, the accused had caused hurt to her voluntarily But, at the initial stage when she was sent for medical examination, PW3 specifically disclosed the name of the accused her brother-in-law molested her on 13.3.2015 at 12.30 P.M., at the NGV gate, Koramangala, So, it is relevant about incident and criminal act of the accused. It was not rebutted as false.
22. The prosecution has adduced the evidence of official witnesses:
22 Spl CC No.373/2015(a) CW10-Head constable Manjunath as PW6 and CW11-Police Constable who has traced out the accused and apprehended him and produced him before the Investigating Officer. As CW10 deposed in this regard as PW6, the prosecution has given up the evidence of CW11. In his evidence, PW6 has marked the Report given by him to the Police Inspector/Investigating Officer regarding tracing out of the accused and apprehending him as per Ex.P6. He has done his official duty, as per the direction of the Investigating Officer.
(b) The PSI-Nataraj.D.N., CW12 who was the Investigating Officer conducted part investigation, deposed as PW8. He received the complaint and registered the case and FIR was sent to the jurisdictional court and he has conducted the spot mahazar. He has done his official duty.
(c) CW13-Prashanth Raju is the Police Inspector who has conducted further investigation after receiving the charge from PW8. He deposed as PW9. After completing the investigation, he has filed the charge-sheet against the accused. Thus, he has performed his statutory duty.
Thus, viewed from the evidence placed by the prosecution witnesses, which has been considered with reference to supporting the evidence against the accused regarding committing of the offence, specifically the place of incident, time and date are clearly admitted which is already discussed in detail in this regard and the prosecution has discharge the initial burden. The specific defence 23 Spl CC No.373/2015 tried to bring on record about the locality and presence of public, but, the victim girl has specifically stated that, at that place, during the said time, i..e, specifically 12.30 P.M., there were nobody else and as such, she [victim girl/PW3] gave explanation that, it was as such a time that, there were no persons nearby to get herself rescued. Of-course, the security guards must be at the gate of the NGV Apartment, specifically the front gate. According to PW5, he referred that, two girls were present and talking with each other and went outside through the gate and he was outside the security room and he saw that, the wife of the accused and the victim girl were quarreling with each other, which was not at all stated at the earliest point of time before the police by PW5 regarding the quarrel of the wife of the accused and the victim girl and the public were already gathered etc., He has stated further that, when he [PW5] was noticing the quarrel, CW7 asked him to pacify their galata and to send them away etc. It is therefore, hostility of this witness. However, if it is considered real state of affairs, then he [PW5] ought to have stated about 2 girls proceeded towars the gate by talking with each other and at that time, quarrel took place between the victim girl and the wife of the accused etc., who were these two girls and who was that person referred as wife of the accused, etc, are not explained. In absence of clarification, and his hostility, his [PW5] evidence is not worth to believe. He [PW5] has not mentioned the date or stated about the time, when the alleged wife of the accused and the victim girl were quarreling, from which direction the accused came and what was the reason for their quarrel etc. This vague statement of PW5 does not come to the aid of the accused to accept his defence that, there was galata 24 Spl CC No.373/2015 [quarrel] between the alleged wife of the accused and the victim girl. Thus, the accused has not substantiated this defence. In-turn, non-establishing this defence, rebutting the prosecution case, it comes to the aid of the prosecution case, as clear and genuine case made out about committing of the offence by the accused. Hence, benefit has to be given to the prosecution and the victim girl about proof of incident. Thus, the prosecution on these counts has proved the criminal act of molestation of the accused.
23. In view of the Medical Report and version of PW1 and the doubtful statement of the victim girl regarding the injury explained in Ex.P1 is simple in nature being not proved, so as to attract the guilt of the accused that he has caused voluntarily hurt on the victim girl punishable under Sec.323 of IPC. However, it has supported the prosecution case that, the victim girl was brought to the hospital on the history of molestation by her brother-in-law who is the accused herein. Therefore, the prosecution has not proved the offence punishable under Sec.323 of IPC.
24. The victim girl has stated about the assault of the accused on her person and also touching her breasts and other parts of the body, which is nothing, but, physical contact without penetration. PW3/victim girl has further specifically stated that, she was afraid of such behaviour of the accused, which is considered to be an isolated place at that time that, he [accused] may repeat which has been committed on her IInd elder sister [Shurti]. It is proof that, the accused with a sexual intent touched her body parts and private parts, as 25 Spl CC No.373/2015 referred above of the victim girl and it is nothing but, sexual assault, punishable under Sec.8 of POCSO Act, 2012. The prosecution has brought home the guilt of the accused that, he has committed the offence of sexual assault coming within Sec.7 of POCSO Act, 2012. It is also made out by the prosecution regarding penal provision Sec.354(A) of IPC regarding sexual harassment and punishment for sexual harassment and the said offence proved by the prosecution certainly falls within sub- sec(1)(i) of Sec.354(A) of IPC ie., physical contact and liable for awarding punishment under sub-section(2) of Sec.354A() of IPC. Hence, the accused is liable for conviction under Sec.8 of POCSO Act, 2012 and under Sec.354(A)(2) of IPC. Hence, POINTS-1 AND 2 are answered in the AFFIRAMTIVE and POINT NO.3 is answered in the NEGATIVE.
25. POINT NO.4:- In the result, I proceed to pass following:
ORDER Acting under Sec.235(1) of Cr.P.C, the accused is hereby acquitted of the offence punishable under Sec. 323 of IPC.
Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences punishable under Sec.8 of POCSO Act, 2012, or alternatively under Sec.354(A)(2) of IPC.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 19th day of March, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.26 Spl CC No.373/2015
22.3.2018 ORDER REGARDING SENTENCE The convict/accused is produced from the judicial custody.
The learned defence counsel and the learned Public Prosecutor are present. Heard on sentence further. The accused submitted through his counsel. The learned counsel for the accused referred the hearing on sentence in writing, that, the accused is convicted for the offences punishable Sec.354(A) of IPC regarding the sexual harassment. The punishment clause in this regard applicable is Sec.354(A)(2) of IPC, which contemplates the punishment of imprisonment to be extended for a period of One year with fine or both and that, he was also convicted under Sec.8 of POCSO Act, 2012, which contemplates the imprisonment either description for not less than 3 years and may extend to 5 years and also liable for fine and that the convict/accused is having wife and 3 female children aged about 4 years, 3 years and one year and they are depending on the earnings of the accused and that he is the only person as bread earner and they are all depending on his earnings. The complainant being sister-in-law of the convict/accused is not ready and willing to reside along with the family of accused and that, there is dispute between the sisters and that he is intending to prefer an appeal preserving liberty and considering the provisions of the Act, leniency may be extended and that the accused /convict had attended before this court regularly and tried to prove his innocence. He was on bail during the course of trial and attended before the court.
27 Spl CC No.373/2015On the other hand the learned Public Prosecutor submitted that, the alleged offences are heinous in nature and the prosecution has proved it. Sec.42 of POCSO Act, 2012 shall prevail and it has to be alternatively considered about the section 354(A)(2) of IPC. Hence, the accused is not entitled for leniency and maximum punishment may be awarded.
Therefore, considering the arguments on sentence, the prosecution has proved the guilt of the accused under Sec.8 of POCSO Act, 2012 and also Sec.354(A)(2) of IPC. However, Sec.42 of POCSO Act, 2012 shall prevail and hence, the minimum punishment prescribed under Sec.8 of POCSO Act, 2012 i.e, 3 years of imprisonment with fine of Rs.25,000/- will have to be awarded. There shall be separate consideration regarding the victim compensation for determination and recommendation. Hence alternatively Sec.354(A)(2) of IPC cannot be awarded as it is not higher in degree than as prescribed under Sec.8 of POCSO Act, 2012 under Sec.42 of POCSO Act, 2012. Hence, taking into consideration about his family status, it is hereby proceeded to pass the following:
SENTENCE:
The convict/accused shall undergo Imprisonment for a period of 3 years, with fine of Rs.25,000/-, under Sec.8 of POCSO Act, 2012, which is higher in degree than that of Sec.354(A)(2) of IPC. In-default of payment of fine amount, the accused shall undergo simple imprisonment for a period of 3 months.28 Spl CC No.373/2015
The period of detention undergone by the accused/convict 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.
As regards the victim compensation, the authorized police officer/Police Inspector of the complainant- Koramangala Police station, is directed to submit the Report regarding the status of the victim girl and her parents/guardian, to recommend the award of compensation for having suffered loss/injury, as a result of the offence, by the victim girl, under Rule 7(2) of POCSO Rules, 2012 r/w Sec. 33(8) of POCSO Act, 2012 and under Sec.357A (2) and (3) of Cr.P.C, within 25 days from the date of this order.
After deposit of fine amount, an amount of Rs.3,000/- shall go to Exchequer and remaining balance of Rs.22,000/- shall be paid to the victim girl as compensation. Said amount of Rs.22,000/- can be adjusted to the compensation to be determined under Rule 7(2) of POCSO Rules, 2012 r/w Sec. 33(8) of POCSO Act, 2012 and under Sec.357A (2) and (3) of Cr.P.C.
Copy of this Judgment and order on Sentence shall be supplied to the accused forthwith.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 22nd day of March, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
29 Spl CC No.373/2015ANNEXURE Witnesses examined for the prosecution:
Pw.1 Dr.Betty Alben CW8 6.4.2016
Pw.2 Suresh CW2 18.4.2016
PW3 Victim girl CW1 5.10.2016
PW4 Sanjay Kumar CW3 5.10.2016
PW5 Jadukumar CW6 12.7.2017
PW6 Manjunath CW10 5.1.2018
PW7 Krishnappa Bhajanthri CW9 19.1.2018
PW8 Nataraj.D.N CW12 22.1.2018
PW9 Prashanth Raju CW13 8.2.2018
Documents marked for the prosecution:
Ex.P1 Wound Certificate of the victim girl
Ex.P1(a) Signature of PW1
Ex.P1(b) Signature of PW9
Ex.P2 Complaint dated: 14.3.2015
Ex.P2(a) Signature of PW3/victim girl
Ex.P2(b) Signature of PW8
Ex.P3 Spot Mahazar
Ex.P3(a) Signature of PW3/victim girl
Ex.P3(b) Signature of PW4
Ex.P3(c) Signature of PW8
Ex.P4 Statement of PW3/victim girl given before the
Learned Magistrate under Sec.164 of Cr.P.C Ex.P4(a) Signature of PW3/victim girl Ex.P5 Statement of PW5 given before the complainant police under Sec.161 of Cr.P.C 30 Spl CC No.373/2015 Ex.P6 Report given by PW6 before the Police Inspector of the complainant police station regarding apprehending of the accused and producing the accused before the Police Inspector Ex.P6(a) Signature of PW6 Ex.P7 Admission Register with reference to PW3/victim girl issued by Sri.C.S.Patel High School, Gadag, showing the date of birth of the victim girl as 10.6.2000 Ex.P7(a) Signature of PW7 Ex.P7(b) Signature of PW9 Ex.P8 Transfer Certificate with reference to the victim girl issued by Sri.C.S.Patel High School, Gadag, showing the date of birth of the victim girl as 10.6.2000 Ex.P8(a) Signature of PW7 Ex.P8(b) Signature of PW9 Ex.P9 Requisition given to the Head Master of Sri.C.S.Patel High School, Gadag, requesting to sent the documents of Admission Register and Transfer Certificate of the victim girl Ex.P9(a) Signature of PW7 Ex.P10 FIR Ex.P10(a) Signature of PW8 Witness examined, documents marked for the accused: NIL [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
31 Spl CC No.373/201519.3.2018 Accused is present.
Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(1) of Cr.P.C, the accused is hereby acquitted of the offence punishable under Sec. 323 of IPC.
Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences punishable under Sec.8 of POCSO Act, 2012, or alternatively under Sec.354(A)(2) of IPC. For hearing on sentence, call on [YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
22.3.2018 Convict/Accused is produced from JC.
Sentence pronounced in the open court:
[vide separate detailed sentenc] The convict/accused shall undergo Imprisonment for a period of 3 years, with fine of Rs.25,000/-, under Sec.8 of POCSO Act, 2012, which is higher in degree than that of Sec.354(A)(2) of IPC. In-default of payment of fine amount, the accused shall undergo simple imprisonment for a period of 3 months.32 Spl CC No.373/2015
The period of detention undergone by the accused/convict 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.
As regards the victim compensation, the authorized police officer/Police Inspector of the complainant- Koramangala Police station, is directed to submit the Report regarding the status of the victim girl and her parents/guardian, to recommend the award of compensation for having suffered loss/injury, as a result of the offence, by the victim girl, under Rule 7(2) of POCSO Rules, 2012 r/w Sec. 33(8) of POCSO Act, 2012 and under Sec.357A (2) and (3) of Cr.P.C, within 25 days from the date of this order.
After deposit of fine amount, an amount of Rs.3,000/- shall go to Exchequer and remaining balance of Rs.22,000/- shall be paid to the victim girl as compensation.
Said amount of Rs.22,000/- can be adjusted to the compensation to be determined under Rule 7(2) of POCSO Rules, 2012 r/w Sec. 33(8) of POCSO Act, 2012 and under Sec.357A (2) and (3) of Cr.P.C.
Copy of this Judgment and order on Sentence shall be supplied to the accused forthwith.
[YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
33 Spl CC No.373/2015 34 Spl CC No.373/2015