Bangalore District Court
The State Of Karnataka vs Sanjay.S on 20 March, 2018
IN THE COURT OF THE L ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BANGALORE
Dated this the 16th Day of March 2018
- : PRESENT: -
SMT. SUSHEELA. B.A. LL.B.
L Additional City Civil & Sessions Judge,
Bangalore
SPECIAL C.C. No. 199/2017
COMPLAINANT:
The State of Karnataka
By Vijaya Nagar Police Station,
Bangalore.
[Special Public Prosecutor-Bangalore]
/ VERSUS /
ACCUSED:
1. Sanjay.S, @ Sanju @ Sheesa
S/o.B.S.Satish, 25 years,
2. Smt.Shobha
W/o. B.S.Satish, 25 years,
Accused No.1and 2 are
R/at.No.1510, 7th Main Road,
4th Cross, R.P.C. Layout,
Vijaya Nagar,
Bengaluru.
[By Sri.V.L.K-Advocate.]
1 Date of commission of offence 09-02-2017
2 Spl.C.C.No.199/2017
2 Date of report of occurrence 10-02-2017
3 Date of arrest of Accused No.1 11-02-2017
Date of release of Accused No.1 In J.C. till date
Period undergone in custody
by Accused No.1
Date of arrest of Accused No.2 12-02-2017
Date of release of Accused No.2 13-02-2017
Period undergone in custody 1 Day
by Accused No.2
4 Date of commencement of evidence 03-10-2017
5 Date of closing of evidence 23-02-2018
6 Name of the complainant Smt.Anitha Kumari
7 Offences complained of Section 366, 376-
IPC r/w. 5(L) r/w.6
-POCSO Act.
8 Opinion of the Judge Accused No.1 is
Convicted.
Accused No.2 is
acquitted
9 Order of Sentence As per the
final order
JUDGMENT
This charge sheet filed by Police Inspector, Vijaya Nagar Police Station-Bangalore against the accused No.1 and 2 for the offences punishable under Section 376 of IPC and Section 3, 4, 5(l), 6, 17 of POCSO Act, 2012.
3 Spl.C.C.No.199/2017
2. Since it is a case of rape of minor girl, as such the name of the victim girl is no where shown in the course of judgment as mandated under Section 227(A) of Cr.P.C. However her name is referred to as 'victim girl' wherever her name is necessary.
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
The accused No.1 and 2 are residing at No.1510, 7th Main, 4th Cross, Hampi Nagar, Vijaya Nagar, Bengaluru within the jurisdiction of Vijaya Nagar Police Station and the accused No.2 was running Savan Play Home by taking admission of small children without license. During the academic year of 2015- 2016, the complainant-Anitha Kumari admitted her daughter-
the victim girl, aged about 3½ Years to said play home. The accused No.1 and 2 having common intention on 09-02-2017 from 09.30 a.m., to 12.30 p.m. when the victim girl was at play home the accused No.1 took her to his bed room, tied her hands in a rope, removed her clothes, inserted his finger to her private part and caused sexual abuse on her and afterwards the 4 Spl.C.C.No.199/2017 accused No.1 by seeing obscene scene photos in his mobile No.9742979899 and of his father's mobile No.9845530151 pertains to Apple and Samsung company respectively enraged and removed his pant and raped on the victim girl. The accused No.2 without having license from the concern authority, without fixing CCTV and providing security to the children was running the play home and abated the accused No.1 to touch the body of children through his hands by seeing obscene showing scene photos to the said children through his mobile and this fact made known by Cw.11 and Cw.12 to the accused No.2, but the accused No.2 neglected the same and accommodated the accused No.1 to do the above said act. On the basis of complaint lodged by the complainant, the police registered the case against accused No.1 and 2 for the offences punishable under Section 376 of IPC and Section 3, 4, 5(l), 6, 17 of POCSO Act, 2012.
4. The Investigation Officer has investigated the same and filed charge sheet against accused No.1 and 2 for the offences punishable under Section 376 of IPC and Section 3, 4, 5(l), 6, 17 of POCSO Act, 2012. Earlier this case was registered 5 Spl.C.C.No.199/2017 before CCH-55-Bengaluru and thereafter it was transferred to this Court and during crime stage the accused No.1 was in judicial custody, the accused No.2 is on bail. After filing of charge sheet the accused No.1 was produced before the Court and the accused No.2 appeared before the Court. The copy of charge sheet furnished to them as contemplated under Section 207 of Cr.P.C. Thereafter the learned advocate for accused No.1 and 2 submitted no arguments before framing charge. On perusal of charge sheet there is prima-facie material available on record against accused No.1 and 2, hence the charges were framed for the offences punishable under Section 5(m), 6 read with section 376 of IPC against the accused No.1 and under section 17 of POCSO Act, 2012 The contents of charge read over and explained to the accused No.1 and 2 in Kannada. The accused No.1 and 2 pleaded not guilty and submits crime to be tried. Thereafter, the case against accused No.1 and 2 was set down for prosecution evidence.
5. The prosecution in order to establish the guilt of the accused No.1 and 2, has examined in all 22 witnesses as Pw.1 to Pw.22, got marked 44 documents as Ex.P1 to Ex.P44 and 15 6 Spl.C.C.No.199/2017 material objects as MO1 to MO15 and closed its side evidence. During the course of cross-examination of the accused No.1 and 2 got marked Ex.D1 to D9. In view of available incriminating evidence appeared against accused No.1 and 2, they were examined under Section 313 of Cr.P.C., by recording their statement. They have denied the alleged incriminating evidence appeared against them. Earlier to that the accused No.2 complied the provisions of Section 437-A of Cr.P.C, by executing personal bond and surety. Thereafter arguments heard from both the sides. The learned Special Public Prosecutor relied on the decision reported in 2008 Crl.L.J. Page 4419, (2000) 5 SCC Page 30 and (2001) 6 SCC Page 71. The learned counsel for the accused No.1 and 2 relied on the decision reported in 2016(1) AICLR 350 (SC) and thereafter the matter is set down for judgment.
6. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that arise for my consideration are as under:-
1) Whether the prosecution proves beyond all reasonable doubt that the accused No,1 has committed aggravated 7 Spl.C.C.No.199/2017 penetrative sexual assault on 09-02-2017 in between 09.30 a.m., to 12.30 p.m., in Savan Play Home, run by his mother-the accused No.2 for small children in their house at No.1510, 7th Main Road, 4th Cross, R.P.C. Layout, Vijaya Nagar, Bengaluru, situated within the limits of Vijaya Nagar Police Station, on Cw.2-the victim girl, who was admitted to the said play home and was aged about 3½ years, by taking her to his bed room and tying her two hands with rope and thereafter removed clothes of Cw.2, inserted his finger into her private part and by seeing some obscene photos n his mobile and also in the mobile of his father with sexual desire, removed his pant and illegally had sexual intercourse and committed rape on Cw.2-the victim girl and thereby committed offence punishable under Section 5(m) of POCSO Act, 2012 punishable under section 6 of POCSO Act, 2012 read with section 376 of IPC?
2) Whether the prosecution further proves that during the year 2015-2016 the accused No.2 was funning Savan Play Home for small children in her house at No.1510, 7th Main Road, 4th Cross, R.P.C. Layout, Vijaya Nagar, Bengaluru, situated within the limits of Vijaya Nagar Police Station, without any permission or license and she has not provided any security or CCTV for children and inspite of intimating about misbehaviour of the accused NO.1 within the area of play home, displaying the obscene photos to the children and touching the parts of the body of the children, with a sexual intent, etc., through Cw.11 and Cw.12, she has not taken any precautionary measures and shown negligence and thereby the accused No.1 abated to commit the offence of rape/aggravated penetrative sexual assault on Cw.2- the victim girl and thereby committed offence punishable under Section 17 of POCSO Act, 2012?
3) What order?
7. My findings on the above points are as under:-
Point No.1: In the Affirmative.8 Spl.C.C.No.199/2017
Point No.2: In the Negative.
Point No.3: As per the final orders for the following:
REASONS
8. Point No.1 and 2: As these points are inter-related, hence, I have taken up together for my consideration in order to avoid repetition of reasonings.
9. Perused the entire record, charge sheet, evidence produced both at oral and documentary testimony produced by the prosecution and the accused No.1 and 2 and arguments canvassed by the learned advocate for the accused and the learned Special Public Prosecutor and relied on their respective decisions.
10. In order to prove the alleged offences against the accused No.1 and 2 the prosecution examined in all 22 witnesses as Pw.1 to Pw.22, got marked 44 documents as Ex.P1 to Ex.P44 and 14 material objects as MO1 to MO14 and also the accused No.1 and 2 through the cross-examination of prosecution witnesses got marked Ex.D1 to Ex.D9. As per the prosecution case, Pw.1 is the complainant, Pw.2 is the victim 9 Spl.C.C.No.199/2017 girl, Pw.5, Pw.6 are the grand parents of the victim girl, Pw.7 is the maternal uncle of the victim girl, Pw.8 is the father of the victim girl, Pw.3, Pw.4, Pw.9 to Pw.12 are the independent witnesses, Pw.13 is the owner of the building of the accused No.1 and 2, Pw.14, Pw.15, Pw.17 to Pw.19 and Pw.22 are the police personnel and officials, Pw.16 is the Thasildar, Pw.20 is the social worker, Pw.21 is the Scientific Officer. Hence, this Court shall proceed to see whether the available evidence of said witnesses is sufficient for establishing the alleged offences against the accused No.1 and 2.
11. In order to establish the alleged offences against accused No.1 and 2 the prosecution is required to prove that the accused No.1 and 2 are residing at No.1510, 7th Main, 4th Cross, Hampi Nagar, Vijaya Nagar, Bengaluru within the jurisdiction of Vijaya Nagar Police Station and the accused No.2 was running Savan Play Home by taking admission of small children without license. During the academic year of 2015- 2016, the complainant-Anitha Kumari admitted her daughter- the victim girl, aged about 3½ Years to said play home. The accused No.1 and 2 having common intention on 09-02-2017 10 Spl.C.C.No.199/2017 from 09.30 a.m., to 12.30 p.m. when the victim girl was at play home the accused No.1 took her to his bed room, tied her hands in a rope, removed her clothes, inserted his finger to her private part and caused sexual abuse on her and afterwards the accused No.1 by seeing obscene scene photos in his mobile No.9742979899 and of his father's mobile No.9845530151 pertains to Apple and Samsung company respectively enraged and removed his pant and raped on the victim girl. The accused No.2 without having license from the concern authority, without fixing CCTV and providing security to the children was running the play home and abated the accused No.1 to touch the body of children through his hands by seeing obscene showing scene photos to the said children through his mobile and this fact made known by Cw.11 and Cw.12 to the accused No.2, but the accused No.2 neglected the same and accommodated the accused No.1 to do the above said act and thereby the accused No.1 and 2 committed offences punishable under Section 376 of IPC and section 5(m) and 17 of POCSO Act. Hence, this Court shall proceed to see whether the prosecution has succeeded in establishing all the aforesaid 11 Spl.C.C.No.199/2017 ingredients of the alleged offences against accused No.1 and 2 beyond all reasonable doubt.
12. Before venturing into scan the available materials evidence on record, it is necessary to mention the very definition of offences under Section 376 of IPC and section 5(m) and 17 of POCSO Act.
Section 376 of IPC defines that:
Punishment for rape-(1) Whoever, except in the cases provided for by sub-section(2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,-
(a) being a Police Officer commits rape-
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a Police Officer subordinate to him; or 12 Spl.C.C.No.199/2017
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place or custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant;
or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.
Section 5(m) of POCSO Act defines that:
Aggravated penetrative Sexual assault: Whoever commits penetrative sexual assault on the child below twelve years; or Section 6 of POCSO Act defines that:
Punishment for aggravated penetrative Sexual Assault: Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than ten 13 Spl.C.C.No.199/2017 years but which may extend to imprisonment for life, and shall also be liable to fine.
Section 17 of POCSO Act defines that:
Punishment for abetment: Whoever abets any offence under this Act, if the act abetted is committed in consequence of the abetment, shall be punished with punishment provided for that offence..
13. By going through the facts and circumstances and available evidence on record, it is just and proper to mention the common contentions of the prosecution with regard to the relationship of the victim girl and the complainant and also the admitted facts and circumstances between the parties. By going through the evidence of Pw.1, Pw.2, Pw.5 to Pw.13, it is not in dispute that Pw.1-the complainant is the mother of Pw.2- the victim girl, wife of Pw.8-Gaurv Joshi, daughter of Pw.5 and Pw.6 and sister of Pw.7. It is also not in dispute that the complainant and her husband-Gaurv Joshi along with the victim girl are residing in the matrimonial house of the complainant. It is also not in dispute that Pw.5 to Pw.7 are residing in separate house. It is also not in dispute that Savan Play Home situated at R.P.C. Layout, Vijaya Nagar, which is a baby sitting run by the accused No.2. It is also not in dispute 14 Spl.C.C.No.199/2017 that the victim girl was student of Savan Play Home for the academic year of 2015 to 2016. It is also not in dispute that the play home hour is from 09.30 a.m., to 12.30 p.m.
14. On perusal of evidence of Pw.13-Sohan Lal Vyas, he has deposed that the building where Savan Play Home was running and the accused No.2 is residing along with her family members is belonged to him. The accused No.2 is the tenant of said house, since from five years. He has also deposed that the accused No.2 along with her son-Sanjay and husband-Satish are also residing. The said Sanjay is the accused No.1. He has also deposed that since from 4-5 years the accused No.2 was running play home in her residential house, as such the said play home is play home cum residential house. He doesn't know whether the accused No.2 had obtained permission from the concerned authorities to run said play home. Now the accused No.2 is not running the said play home. He has also admitted Ex.P17-the rental agreement held between himself and the accused No.2. His evidence remains unassailed. Here, as per his evidence and the defense taken by the accused No.1 and 2, it is not in dispute that he is the land lord and the accused 15 Spl.C.C.No.199/2017 No.1 and 2 are the tenants and earlier the accused No.2 was running Savan Play Home in her residence.
15. On perusal of evidence of Pw.9-Vani, an Aya, she has deposed that the accused No.2 was running Savan Play Home in R.P.C. Layout, nearly 28 children coming to that baby sitting, both male and female babies were there in the said baby sitting. She has also deposed that the Savan Play Home working hours is from 09.00 a.m., to 12.30 p.m. The said play home is running in the residence of the accused No.2. It is also not in dispute that along with the accused No.2, her husband and the accused No.1-Sanjay are residing in the said house. It is also not in dispute that the victim girl was also admitted to said Savan Play Home in the last year. It is also the evidence of this witness that the maternal uncle of the victim girl used to drop and pick up from the Savan Play Home.
16. On perusal of evidence of Pw.10-Renuka another Aya, she has also deposed similar facts and circumstances as deposed by Pw.9 with regard to Savan Play Home run by the accused No.2 and the said Savan Play Home was run in the 16 Spl.C.C.No.199/2017 residential house of the accused No.2 from 09.00 a.m., to 12.30 p.m.
17. With these now left with the available material evidence to know whether the accused No.2 obtained permission to run Savan Play Home from the concerned authority and it is compulsory. On perusal of evidence of Pw.22- the Investigation Officer, he has deposed that the accused No.2 was running Savan Play Home without obtaining permission from the competent authority and through him the prosecution got marked Ex.P14-letter issued by B.B.M.P. Health Department on 28-04-2017. On perusal of said document, it discloses that the accused No.2 has not obtained any license from B.B.M.P., to run Savan Play Home. Further on perusal of Ex.P18 marked by consent and issued by B.E.O. of Bangalore South Division-2 on 25-04-2017, wherein in Column No.1 the authority has answered as no such permission is necessary to run play home by admitting the children below the age about 3 years 10 months. In Column No.3 it is stated that no such circular is available in respect of obtaining of permission to run play home is necessary. With regard to column No.5, it is stated that the 17 Spl.C.C.No.199/2017 accused No.2 was not running play home illegally.
18. With these now left with the evidence of Pw.11- Dr.K.R.Komala-Health Officer-B.B.M.P. She has deposed that she has issued Ex.P14 to the police as per their request stating that the accused No.2 has not taken any permission from the Health Department to run Savan Play Home and her signature is Ex.P14(a). The accused tested the veracity of evidence of this witness by eliciting some commission and omission and also elicited that no such rule mandated to issue permission to run play home and she has no powers to issue permission to run play home, as such she has given Ex.P14 to the police.
19. Viewing from the available material evidence as stated supra, it clearly discloses that in order to run play home, there is no need of obtaining permission from the authority and running of Savan Play Home by the accused No.2 earlier to the incident was not an illegal one.
20. With these now left with the available material evidence both at oral and documentary on record to consider whether the accused No.1 and 2 have committed the alleged 18 Spl.C.C.No.199/2017 offences and the prosecution proved the said offences beyond all reasonable doubt or the defense of accused No.1 and 2 probabalises the defense of them have to be looked into.
21. By going through the evidence of Pw.2-the victim girl who knows Hindi language and also little bit English language and the mother tongue is Pahadi language. Whatever she deposed in her baby style this Court has taken as it is. The victim deposed that:
"FUÀ £ÉÆÃrzÀ zÁR¯ÉAiÀÄ°è EgÀĪÀ ¥sÉÆÃmÉÆà ²Ã±Á CAPÀ¯ï£À ¥sÉÆÃmÉÆà DVzÉ. ¸Àzj À zÁR¯É ¥ÉÇøïÖ¥ÉÃAiÀiïØ PÀ¸ÖÀ ªÀÄgï j¯ÉñÀ£ï²¥ï ¥sÁgÀA DVzÀÄÝ CzÀ£ÀÄß ¤.¦.10 JAzÀÄ ¸ÀA§AzÀs¥l À Ö ¥sÆ É ÃmÉƪÀ£ÄÀ ß ¤.¦.10(J) JAzÀÄ UÀÄgÀÄvÀÄ ¥Àr¸À¯Á¬ÄvÀÄ."
Further it is her evidence that:
"FUÀ £ÉÆÃrzÀ ¤.¦.3gÀ°g è ÀĪÀ ¥sÉÆÃmÉÆà bÉÆÃn vÀ¤±À̼ÀzÁÝVzÉ. ¤.¦.4 gÀ ¥sÉÆÃmÉÆÃzÀ°è vÀ£Àå ªÀÄvÀÄÛ j¢Ý EgÀĪÀgÀÄ. D ¥sÆ É ÃmÉÆà ¨ÁèPï ¸ÀÆ̯ï£ÀzÁVzÉ. ¸Àzj À ¨ÁèPï ¸ÀÆÌ¯ï ªÀiÁåªÀiï PÁ WÀgï DVzÉ. ªÀiÁåªÀiï PÁ £ÁªÀiï ªÀiÁåªÀiï xÁ M ©A¢ ®UÁw vÁ CAqï ¸Áj ¥Éº£ À ïwÃw. ²Ã±Á CAPÀ¯ï £À£ÀUÉ EµÀ× E®è G¸ïPÉÆà eÉÊ¯ï ªÉÄ gÀPï£Á ºÉÊ. G£ïPÉÆà eÉʯïªÉÄ gÀPï£Á ºÉÊ E¸ï°AiÉÄ G£É ºÀªÀiïPÉÆà UÀÄeÁ ¤PÁ¯ïvÁ ºÉ JAzÀÄ ºÉý ªÀÄUÀÄ vÀ£Àß PÉʬÄAzÀ ªÀĪÀiÁðAUÀzÀ PÀqÉ vÉÆÃj¹ ºÉývÀÄ. ²Ã±Á CAPÀ¯ï ¸ÀÆxÀ£ï ¤PÁ¯ïvÉvÉ ¦üÃgï UÀÄeÁ ¤ÃPÁ¯ïvÉvÉ (¥ÁåAmï/¥ÉÊeÁªÀÄ ©ZÀÄÑwz Û £ ÀÝ ÀÄ UÀÄeÁ ªÀ£ÀÄß EqÀÄwÛz£ ÀÝ ÀÄ). ªÉÊÄ ¸ÀÆwÃw, ¸ÀÆxÁ£ï ¤PÁ¯ïvÁvÁ M UÀÄeÁ ¤PÁ¯ïvÁvÁ JA§ÄzÁV ºÉý vÀ£Àß PÉÊU½ À AzÀ ¸À£ÉßU¼À £ À ÄÀ ß ªÀiÁqÀĪÀ ªÀÄÄSÁAvÀgÀ vÉÆÃj¹ ºÉýgÀĪÀ¼ÀÄ. vÀ¨ï ªÉÄÊ ¸ÉÆÃww, ²Ã±Á CAPÀ¯ï zÉÆ£ÉÆà GAVè¸É UÀÄeÁ ¤PÁ¯ïvÁvÁ JAzÀÄ ºÉý vÀ£ßÀ JgÀqÄÀ ¨Ég¼ À ÀÄUÀ¼£ À ÀÄß ªÀĪÀiÁðAUÀzÀ PÀqÉ vÉÆÃj¹ ºÉýgÀĪÀ¼ÀÄ. ²Ã±Á CAPÀ¯ï ªÉʸÁ PÀgï£ÉøÉà ªÀÄÄeÉ zÀzïð ºÉÆÃvÁvÁ. J zÀzïðPÉÆà ªÉÄ棃 ªÉÄÃgÉ ¥Á¥Á, ªÉÄÃgÉ ªÀiÁªÀiÁ Ogï ªÉÄÃgÉ zÁzÁ zÁ¢PÉÆà ¨ÉÆïï¢AiÀiÁ. (F ºÀAvÀz° À è £ÉÆAzÀªÀÄUÀÄ«UÉ ±ÉñÁ CAPÀ¯ï EzÉ®ª è £ À ÀÄß J°è ªÀiÁqÀÄwÛzÝÀ JAzÀÄ PÉýzÁUÀ ªÀÄUÀÄ ªÉÄÃgÁ WÀgïªÉÄ JAzÀÄ ºÉý ªÀÄUÀĪÀÅ vÁ£ÀÄ DlªÁqÀĪÀ ªÀÄÆr£À°è EvÀÄ.Û ) ±ÉñÁCAPÀ¯ï D jÃw ªÀiÁqÀĪÁUÀ £À£ÀUÉ §ºÀÄvï zÀzïð ºÉÆÃww 19 Spl.C.C.No.199/2017 JA§ÄzÁV ºÉýzÀ¼ÀÄ. ±ÉñÁ CAPÀ¯ï UÀÄnÖ qÁ¯ïvÁvÁ JA§ÄzÁV ºÉý vÀ£Àß ªÀĪÀiÁðAUÀª£ À ÀÄß PÉʬÄAzÀ ªÀÄUÀÄ vÉÆÃj¹vÀÄ."
The above said evidence deposed in her chief examination is taken into consideration, it clearly discloses about commission of offence by the accused No.1 on her by inserting his fingers on her private part and also he has inserted his penis on her private part. If this piece of evidence is taken into consideration, the prosecution initially establishes the presumption as per section 29 of POCSO Act, 2012 i.e, 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. Now left with to consider the available evidence in cross-examination whether it is contrary proved has to be looked into.
22. By going through the cross-examination of Pw.2 the accused elicited that:
"¤Ã£ÀÄ eÁ¹Û ¸ÀļÀÄî ºÉüÀÄwÛÃAiÀiÁ CxÀªÁ Djñï eÁ¹Û ¸ÀļÀÄî ºÉüÀÄvÁÛ£Á JA§ ¥Àæ±ÉßUÉ £Á£ÀÄ ¸ÀļÀÄî ºÉüÀĪÀÅ¢®è Dj±ï ªÀiÁvÀæ ¸ÀļÀÄî ºÉüÀÄvÁÛ£É JAzÀÄ ºÉüÀÄvÁÛ¼.É "20 Spl.C.C.No.199/2017
If the above said elicitation is taken into consideration, what ever she has stated in her chief examination, she has not deposed falsely. Admittedly the victim girl aged about nearly 4 years, even four years is also not completed. Further she was elicited that:
"²Ã±Á CAPÀ¯ï PÉÆà ¨ÁAzïPÀgïPÉ (PÉÊAiÀÄ£ÀÄß Dr¹ ¸À£ßÉ ªÀiÁr ) eÉÊ¯ï ªÉÄà §gï£Á ºÉÊ JAzÀÄ ªÀÄ«Ää £À£ÀUÉ ºÉýzÀ¼ÀÄ. (J®ègÀÆ D jÃw ºÉýzÀgÀÄ) ¸À¨ï£Éà ¨ÉÆïÁ ¦ügï £Á£Á£Àf © ¨ÉÆïÁ. ²Ã±Á CAPÀ¯ï §ÄgÁ ºÉÊ PÀgïPÉÆà PË£ï ¨ÉÆïÁ JA§ ¥Àæ±ÉßUÉ ¸ÁQë ªÉÄÊ ¨ÉÆïÁ, ªÀÄ«Ää£É ¨ÉÆïÁ £Á£À, £Á¤, UÀÄ®ÄèªÀiÁªÀÄ, §©vÁ ¸À©Ã ¨ÉÆïÁ JAzÀÄ £ÀÄr¢gÀÄvÁÛg.É ªÀÄUÀÄ«UÉ ¥sÉÆÃmÉÆà EgÀĪÀ MAzÀÄ zÁR¯ÉAiÀÄ£ÀÄß vÉÆÃj¹ EzÀÄ AiÀiÁgÉAzÀÄ PÉýzÁUÀ ªÀÄUÀÄ D ¥sÉÆÃmÉÁÄêÀ£ÀÄß £ÉÆÃr ²Ã±Á CAPÀ¯ï JA§ÄzÁV UÀÄgÀÄw¸ÀÄvÁÛg.É ¸Àzj À zÁR¯É JgïmÉ¯ï ¸À¨ï¸ïÌçʧgï jf¸ÉÖæÃmï ¥sÁgÀA£À eÉgÁPïì ¥ÀæwAiÀiÁVzÀÄÝ ªÀiÁ£Àå ¦¦ gÀªg À À vÀPg À ÁjUÉ M¼À¥lÀ ÄÖ ¤.r.4 ¥sÉÆÃmÉÆêÀ£ÀÄß ¤.r.4(J) JAzÀÄ UÀÄgÀÄvÀÄ¥Àr¸À¯Á¬ÄvÀÄ.."
If this piece of evidence coupled with Ex.D4 taken into consideration, the learned advocate for accused argued that the victim girl was not able to identify the accused No.1 and the photo available on Ex.D4 is not the photo of accused No.1. On perusal of Ex.D4-the photo, Ex.D4(a) pertains to one Sanjay, last name-Gagan, date of birth 22-06-1991 and the signature found as Gagan Sanjay. On perusal of photo as per Ex.P10- post paid customer relationship form, Ex.P10(a) is the photo of the accused No.1 which is admitted by the accused No.1 also and no such cross-examination made on this document except 21 Spl.C.C.No.199/2017 denial suggestion. It is mentioned the name-Sanjay.S, father's name mentioned as Sathis.D.S. But no such last name is mentioned. Date of birth mentioned as 08-05-1992. But on perusal of signature no doubt it is mentioned as Sanjay on 09- 11-2016. Whereas Ex.D4 is signed on 06-05-2017 that too after the incident taken place and the part of the signature tally with each other. Even the photo-Ex.P10(a) and Ex.D4(a) is compared, it tallied with each other. Even on perusal of signature of accused No.1 on plea form, it tallied with the part of signature as Sanjay found in Ex.D4. As such it is not safe to accept the arguments canvassed by the learned advocate for accused persons that Ex.P10(a) not pertains to the accused No.1. At the same time when the accused No.1 produces the photo-D4(a) is not the photo of accused No.1, but the victim girl identified he is Sheesha Uncle who is accused No.1, at the same time no such supporting document or oral testimony of the person who is in Ex.D4(a) other than the accused No.1 produced. At the same time Ex.D4 not seized by the Investigation Officer at the time of investigation. On the other hand, Ex.D4 was in the custody of the accused persons and 22 Spl.C.C.No.199/2017 while cross-examining Pw.2-the victim girl, the accused persons themselves produced the same by confronting the same, and the victim girl clearly identified Ex.D4(a) photo as the photo of Shreesha uncle who is none other than the accused No.1 herein. The other contents mentioned in Ex.D4 i.e., date of birth as 21-06-1994, this Court feels to observe that it is an after thought one, that too it was created on 06-05-2017, after the incident took place. If really the accused persons produced the document pertains to earlier to the incident, definitely it is to be accepted, but this document came into existence on 06- 05-2017. As such it is not safe to accept the arguments canvassed by the learned advocate for accused persons that Ex.D4(a) is not the accused No.1. The victim girl identified Ex.D4(a) as Shreesha uncle, as such Shreesha uncle is none other than the accused No.1 and at the same time Ex.P10 came into existence on 09-11-2016 which is earlier to incident and both Ex.P10(a) and Ex.D4(a) are tallied with each other.
23. Further the accused tested the veracity of evidence of this witness and also elicited that:
23 Spl.C.C.No.199/2017
"¥Éº¯ À Á ¸ÀÆ̯ïªÉÄ ¥ÀqïwÃwãÁ M ªÀiÁåªÀiï CZÁá vÁ JA§ ¥Àæ±ÉßUÉ ªÀÄUÀÄ DlªÁqÀÄvÁÛ M ªÀiÁåªÀiï §Æån¥sÀůï w Ogï CZÁá vÁ JA§ÄzÁV £ÀÄr¢gÀÄvÁÛ¼.É ¥ÉºÁ® ¸ÀÆ̯ïªÉÄ vÀĪÀiï PÁåPÀgïwÃw JA§ ¥Àæ±ÉßUÉ ªÀÄUÀÄ M §Æån¥sÀÅ¯ï ªÀiÁåªÀiï ¸ÀÆ̯ïªÉÄà PÉïïwà w , j§â£ï ¨ÁAzïw, UÁ£Á UÁwÃw Ogï n¥À£ s ï PÁåjAiÀÄgï §Azï PÀgïww JA§ÄzÁV £ÀÄr¢gÀÄvÁÛ¼.É "
Again she was elicited that:
"FUÀ ¤Ã£ÀÄ ºÉÆÃUÀÄwÛgÀĪÀ ±Á¯É ZÉ£ÁßVzÉAiÀiÁ JA§ ¥Àæ±ÉßUÉ ªÀÄUÀÄ vÀ£Àß DlªÁqÀĪÀ ªÀÄÆqï£À°è ¸ÁªÀ£ï¥ÉÃè ºÉÆA CZÁá £À»ºÉÊ Ogï «Ã£À¸ï ¸ÀÆ̯ï CZÁá ºÉ JAzÀÄ ºÉüÀÄvÁÛ¼.É ¸ÀÆvÀ£ï PË£ï ¤PÁ¯ïvÁvÁ JA§ ¥Àæ±ÀÉßUÉ ªÀÄUÀĪÀÅ vÁ£ÀÄ DlªÁqÀĪÀ ªÀÄÆqï£À°è ²Ã±Á CAPÀ¯ï ¤ÃPÁ¯ïvÁvÁ JA§ÄzÁV £ÀÄr¢gÀÄvÀÛÁ¼É."
Further she was elicited that:
"²Ã±Á CAPÀ¯ï ¸ÀÆvÀ£ï ¤PÁ¯ïvÁvÁ JʸÁ PË£ï ¨ÉÆïÁ vÀĪÀiïPÉÆà JA§ ¥Àæ±ÉßUÉ ªÀÄUÀÄ vÁ£ÀÄ DlªÁqÀĪÀ ªÀÄÆqï£À°è £Á¤ ¨ÉÆïïwÃw JAzÀÄ £ÀÄr¢gÀÄvÁÛ¼.É PÉÆÃmïðªÉÄ JʸÁ ¨ÉÆïï£Á PË£ï ¨ÉÆïïPÉ ¢AiÀiÁ JA§ ¥Àæ±ÉßUÉ ªÀÄUÀÄ DlªÁqÀÄvÀ¯Û ÃÉ £Á¤ Ogï £Á¤ Ogï £Á¤ JA§ÄzÁV ºÉý ¨ÉÆïïPÉ ¢AiÀiÁ JA§ÄzÁV £ÀÄr¢gÀÄvÁÛ¼.É "
While identifying the accused No.1 and 2 this Court also put some questions to the victim girl, for that the victim girl deposed that:
"£ÁåAiÀÆ®AiÀÄzÀ ¥Àæ±ÉßB vÀĪÀiï ²Ã±Á CAPÀ¯ï Ogï §Æån¥sÅÀ ¯ï ªÀiÁåªÀiïPÉÆà ¥ÀºZ À Á£ï ¸ÀPïvÉúÉÆÃ?
GvÀg Û BÀ ºÁA ªÉÄÊ ¥ÉºZÀ Á£ï ¸ÀPïw ºÀÆA £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ ¤AwgÀĪÀ DgÉÆæ1 ªÀÄvÀÄÛ 2 gÀªg À £ À ÄÀ ß £ÉÆÃr MPË£ï PË£ï ºÉÊ ¥ÉºZ À Á£ï ¸ÀPïvÉúÉÆà JA§ ¥Àæ±ÉßUÉ ¸ÁQë ²Ã±Á CAPÀ¯ï Ogï §Æån¥sÀÅ¯ï ªÀiÁåªÀiï JA§ÄzÁV £ÀÄr¢gÀÄvÁÛg.É "
Further she answered that:
"DgÉÆæ1 gÀªg À £ À ÀÄß vÉÆÃj¹ E¸ïPÁ £ÁªÀiï ²Ã±Á CAPÀ¯ï PË£ï¨ÉÆïÁ JA§ ¥Àæ±ÉßUÉ ªÀÄUÀÄ ¸ÁQë £Á¤ ¨ÉÆïÁ JA§ÄzÁV £ÀÄr¢gÀÄvÁÛg.É "24 Spl.C.C.No.199/2017
No doubt it is true that while in playing mood the victim girl deposed the said fact told her by grand mother or some other person, but at the same time while giving evidence by the victim girl before Court she was answering the questions put forth by the learned advocate for accused, clearly discloses that she deposed voluntarily what ever happened on her and not as tutored witness. Viewing from available material evidence on record this Court has no impediment to coming into conclusion that the prosecution established the alleged offences against accused No.1 beyond all reasonable doubt and accused No.1 and 2 failed to prove the contrary of the offences.
24. Now left with the available material evidence of Pw.1, Pw.5 to Pw.8 who are none other than the mother, grand parents, maternal uncle and father of the victim girl. No doubt it is true that they are not eye-witnesses, but they come to depose what ever the victim girl told to them and what ever they enquired with the accused No.2 about the incident and not more than that. As such it is just and proper to consider whether the prosecution corroborated their evidence to the case of the prosecution or not.
25 Spl.C.C.No.199/2017
25. By going through the evidence of Pw.1-Anitha Kumar, the complainant she deposed that on 09-02-2017 she return to home after closing her work. When she reached home, her mother was crying and her father was in nervous. On enquiry they told that he went to Savan Play Home and brought the victim girl to home at about 12.30 p.m. When the victim girl came to home she refused to change her clothes and to fresh up and also refused to take dinner from her grand mother and she was not talking with them properly. On enquiry with the victim girl and also the grand mother proceeded to change her clothes at that time:
"DUÀ £À£Àß vÀAzÉ vÁ¬Ä DPÉUÉ AiÀiÁPÉ ¤Ã£ÀÄ §mÉÖ §zÀ¯Á¬Ä¸ÀÄwÛ®è, ¤£Àß PÉÊ vÉƼÉAiÀÄÄwÛ®è JAzÀÄ ºÉý £À£Àß vÁ¬Ä DPÉAiÀÄ §mÉÖAiÀÄ£ÀÄß §zÀ¯Á¬Ä¸À®Ä ªÀÄÄAzÁ¬Ä¹zÀgÀÄ. £À£Àß vÁ¬Ä DPÉAiÀÄ §mÉÖAiÀÄ£ÀÄß §zÀ¯Á¬Ä¸À®Ä ªÀÄÄAzÁzÁUÀ £ÉÆAzÀ¨Á®Q D ¸ÀªÀÄAiÀÄzÀ°è ¤AvÀÄPÉÆArzÀÄÝ vÀ£Àß PÁ®ÄUÀ¼£ À ÀÄß PÁæ¸ï ªÀiÁr ¤AvÀÄPÉÆAqÀ¼ÀÄ ºÁUÀÆ DPÉ vÁ£ÀÄ vÉÆnÖzÀÝ §mÉÖAiÀÄ£ÀÄß ©ZÀ® Ñ Ä CªÀPÁ±À PÉÆqÀ°®è. £À£Àß vÁ¬Ä DPÉUÉ AiÀiÁPÉ ¤Ã£ÀÄ §mÉÖ ©ZÀ® Ñ Ä CªÀPÁ±À PÉÆqÀÄwÛ®è JAzÀÄ PÉýzÁUÀ ¤Ã£ÀÄ ¸ÀºÀ ¸ÀAdAiÀiï CAPÀ¯ï jÃwAiÀÄ°è §mÉÖ ©ZÀ® Ñ Ä §AzÀÄ £À£ÀUÉ £ÉÆêÀÅAlÄ ªÀiÁrzÀgÉ £Á£ÀÄ §mÉÖ©ZÀ® Ñ Ä CªÀPÁ±À PÉÆqÀĪÀÅ¢®è JAzÀÄ ºÉýzÀ¼ÉAzÀÄ £À£ßÀ vÁ¬Ä £À£Àß ªÀÄÄAzÉ ºÉýzÀ¼ÀÄ. ¸ÀAdAiÀiï CAzÀgÉ DgÉÆæ1 DvÀ££ À ÄÀ ß ²Ã±Á JA§ÄzÁV ¸ÀºÀ PÀgA É iÀÄÄwÛzÀÄÝ £À£Àß ªÀÄUÀ¼ÀÄ DvÀ££À ÀÄß ²Ã±Á CAPÀ¯ï JA§ÄzÁV ¸ÀºÀ PÀÆUÀÄwÛz¼ ÀÝ ÀÄ."
Further he has told to her that when her mother changed her clothes and taken her to bath room for urinals, at that time 26 Spl.C.C.No.199/2017 she cried that she is not able to pass urinals and she is having pain. At that time her mother enquired about the same, the victim girl told to her that:
"£ÉÆAzÀ¨Á®Q £À£Àß vÁ¬ÄAiÀÄ §½ ºÉýgÀĪÀ «µÀAiÀĪÉAzÀgÉ DgÉÆæ1 £ÉÆAzÀ¨Á®QAiÀÄ£ÀÄß gÀÆ«Ä£À M¼ÀUÉ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃV DPÉAiÀÄ PÉÊAiÀÄ£ÀÄß PÀnÖ DPÉAiÀÄ §mÉÖAiÀÄ£ÀÄß ©aÑ ºÁUÀÆ DPÉ vÉÆnÖzÀÝ ¥ÉÊeÁªÀÄ ªÀÄvÀÄÛ CAqÀgïªÉÃgï£ÀÄß ¸ÀºÀ ©aÑ DPÉAiÀÄ£ÀÄß PɼÀUÉ ªÀÄ®V¹ £ÀAvÀgÀ DgÉÆæAiÀÄÆ ¸ÀºÀ vÀ£Àß §mÉÖUÀ¼£ À É߯Áè ©aÑ vÀ£Àß PÉʨg É ¼À £ À ÀÄß DPÉAiÀÄ ªÀĪÀiÁðAUÀzÀ M¼ÀUÉ vÀÆj¹ £ÉÄÁêÀÅAlÄ ªÀiÁrzÀ£A É zÀÄ F jÃwAiÀiÁV ¸ÀĪÀiÁgÀÄ ¨Áj ªÀiÁrzÀ£A É zÀÄ DUÀ DPÉUÉ £ÉÆêÁV DPÉ QgÀÄaPÉÆAqÀÄ CvÀ¼ Û A É zÀÄ w½¹ (¸ÁQëAiÀÄÄ vÀ£Àß ªÀÄUÀ¼ÀÄ vÀ£ÀUÉ PÉʨg É ¼ À £ À ÀÄß AiÀÄÁªÀ jÃw DgÉÆæ1 DPÉAiÀÄ ªÀĪÀiÁðAUÀPÉÌ vÀÆj¹zÀ£A É §ÄzÀgÀ §UÉÎ ¸À£Éß ªÀiÁr w½¹zÀÄzÀgÀ §UÉÎ ¸ÁQë PÀlPÀmA É iÀÄ°è C¼ÀÄvÁÛ £ÀÄr¢gÀĪÀgÀÄ). £ÉÆAzÀ¨Á®Q CªÀgÀ ªÀiÁvÀȨsÁµÉAiÀÄ°è (¥ÀºÁr ¨sÁµÉ) vÀ£Àß vÁ¬ÄAiÀÄ §½ ºÉýzÀ «µÀAiÀĪÉAzÀgÉ £À£ßÀ vÁ¬Ä £À£Àß §½ ºÉýzÀÄÝ CzÀÄ DgÉÆæ1 vÀ£Àß UÀÄdÓ ( WORM) DPÉAiÀÄ ªÀĪÀiÁðAUÀzÉƼÀUÉ ElÄÖ C£ÉÃPÀ ¨Áj D jÃw vÀÆj¹zÀ£A É zÀÄ ºÉýzÀ¼A É zÀÄ £À£Àß vÁ¬Ä ºÉýzÀ¼ÀÄ. £ÉÆAzÀ¨Á®Q D ¸ÀªÀÄAiÀÄzÀ°è £ÉÆë¤AzÀ £Àg¼À ÀÄwÛz¼ ÀÝ ÀÄ, £À£Àß vÁ¬ÄAiÀÄÆ ¸ÀºÀ D ªÀĪÀiÁðAUÀzÀ §½ ¥Àj²Ã°¹zÁUÀ CzÀÄ HvÀ §A¢zÀÄÝ PÉA¥ÀÅ «Ä²ævÀ PÀAzÀÄ §tÚ¢AzÀ PÀÆrvÀÄ.Û £ÉÆAzÀ¨Á®QAiÀÄÄ £À£Àß vÀAzÉ vÁ¬ÄAiÀÄ §½ DgÉÆæ1 £À£U À É ZÁPÀ¯ÃÉ mï£ÀÄß PÉÆlÖ£ÉAzÀÄ ¸ÀºÀ ºÉýzÀ¼A É zÀÄ w½¹zÀgÀÄ. E¢µÀÄÖ «µÀAiÀĪÀ£ÀÄß £À£Àß vÀAzÉvÁ¬Ä £Á£ÀÄ PÉ®¸À¢AzÀ §AzÁUÀ £À£ÀUÉ w½¹zÀgÀÄ."
When she herself seen about the private part of the victim girl, it was reddish and having smell and she was suffering with pain. Thereafter she went to Savan Play Home along with her parents and husband to enquire about the incident with the accused No.2. When she reached the Savan Play Home, the time was 09.00 p.m. On enquire the accused No.2 denied the alleged incidents stating that no such incident taken place in Savan Play Home. Further she has told that her son went outside and 27 Spl.C.C.No.199/2017 gone to college, when such being the case, no such incident was taken place. No doubt it is true that through this witness the prosecution marked Ex.P5-the Admission Form, Ex.P4-group photo of the play home children, Ex.P5-birth certificate, Ex.P6- further complaint given by her, Ex.P7 is the statement given by the victim girl before P.S.I. Kathyani and social worker.
26. On perusal of chief examination of Pw.1 she has corroborated her evidence with regard to the contents of Ex.P1 and Ex.P6-complaint and further complaint. No doubt it is true that she was not an eye-witness to the incident, she is an hear say witness. But the evidence of victim girl is very clear about the commission of offence by the accused No.1 on her and what ever the victim girl has stated to this witness, she has deposed in her chief examination. As such it is not safe to disbelieve the evidence of Pw.1 in order to believe the commission of offence by the accused No.1 on the victim girl. By producing the evidence of this witness the prosecution discharged its initial burden of presumption of commission of offences by the accused No.1. 28 Spl.C.C.No.199/2017
27. By going through the cross-examination of Pw.1 the accused persons tested the veracity of evidence of this witness with regard to the relationship of complainant, victim girl and Pw.5 to Pw.7, their working hours, their family life and also who used to pick and drop the victim girl to Savan Play Home. But nothing has been elicited favourable to the defense of the accused persons on the above said facts and circumstances. Further the accused persons tested the veracity of the evidence of this witness in respect of that:
"¢£ÁAPÀB09.02.2017 gÀAzÀÄ £Á£ÀÄ £À£Àß CvÉÛ ªÀiÁªÀ£À ªÀÄ£ÉUÉ ¸Àj¸ÀĪÀiÁgÀÄ ¸ÀAeÉ 7.00 UÀAmÉUÉ §A¢zÉÃÝ £É. D ¢£À £À£ßÀ vÀAzÉvÁ¬Ä £À£Àß ªÀÄUÀ¼£À ÀÄß CªÀgÀ ªÀģɬÄAzÀ £ÀªÀÄä ªÀÄ£ÉUÉ PÀgv É A À zÀgÀÄ. D ¢£À £Á£ÀÄ £À£Àß PÀbÃÉ j¬ÄAzÀ ¸ÀAeÉ £À£Àß ªÀÄUÀ¼£ À ÀÄßPgÀ v É g À ® À Ä £À£Àß vÀAzÉvÁ¬Ä ªÀÄ£ÉUÉ ºÉÆÃVgÀ°®è £Á£ÀÄ £ÉÃgÀªÁV £À£Àß Cvɪ Û ÀiÁªÀ£À ªÀÄ£ÉUÉ §A¢zÉ.Ý £À£Àß UÀAqÀ £À£Àß ªÀÄUÀ¼£À ÀÄß £À£Àß vÀAzÉvÁ¬Ä ªÀģɬÄAzÀ PÀgv É g À ®À Ä ºÉÆgÀnzÀgÝ ÄÀ DzÀgÉ D ªÉüÉUÁUÀ¯ÃÉ £À£Àß vÁAzÉvÁ¬ÄAiÉÄà £À£Àß ªÀÄUÀ¼£ À ÀÄß ªÀÄ£ÉUÉ PÀgvÉ A À zÀgÄÀ . D ¢£À £À£Àß vÀAzÉvÁ¬Ä £À£Àß ªÀÄUÀ¼ÉÆA¢UÉ £À£Àß ªÀÄ£ÉUÉ §AzÀAvÀºÀ ¸ÀAzÀ¨ð sÀ zÀ°è £À£Àß vÀAzÉvÁ¬ÄAiÀÄ ªÀÄÄR JA¢£ÀAvÀÉ £ÀUÀĪÀÄÄRzÀ°g è ° À ®è ºÁUÀÆ CªÀgÄÀ vÀÄA¨Á aAvÁPÁæAvÀz° À z è ÀÄÝ £À£Àß vÁ¬Ä CwÛgÀĪÀ jÃwAiÀÄ°è PÀAqÀÄ §AzÀgÀÄ DPÁgÀt £Á£ÀÄ CªÀgÀ D ¹ÜwAiÀÄ£ÀÄß £ÉÆÃr £Á£Éà £À£Àß vÀAzÉvÁ¬ÄAiÀÄ£ÀÄß D §UÉÎ «ZÁj¹zÉ."
Further she was elicited that:
"£Á£ÀÄ £À£Àß vÀAzÉvÁ¬ÄAiÀÄ£ÀÄß D §UÉÎ «ZÁj¹zÁUÀ £À£ßÀ vÁ¬Ä £À£Àß §½ £À£Àß ªÀÄUÀ½UÁzÀ ¹ÜwAiÀÄ£ÀÄß ºÉüÀ®Ä ±ÀÄgÀĪÀiÁrzÀ¼ÀÄ, MªÉÆäªÉÄä DPÉ C¼ÀÄvÁÛ ºÉüÀĪÀÅzÀ£ÀÄß ¤°è¹zÁUÀ £À£Àß vÀAzÉ D §UÉÎ ºÉüÀÄvÁÛ ªÀÄÄAzÀĪÀj¹zÀgÀÄ, D ¸ÀªÀÄAiÀÄzÀ°è ªÀÄzÀså ªÀÄzÀså £Á£ÀÄ ¸ÀºÀ £À£ßÀ ªÀÄUÀ½UÉ K£Á¬ÄvÀÄ JA§ §UÉÎ «ZÁj¹ CªÀ¼ÀÄ ºÉýzÀ£ Ý ÀÄß ¸ÀºÀ PÉý «ZÁj¸ÀÄwÛz.ÉÝ £À£Àß ªÀÄUÀ¼ÀÄ £ÉÆAzÀ¨Á®QAiÀÄÄ ¸ÀºÀ vÁ£ÀÄ ºÉüÀĪÁUÀ ¨ÉÆæPÀ£ï ¯ÁAUÉéÃeï£À°è ºÉüÀÄvÁÛ ¸À£Éß ªÀiÁrAiÀÄÆ ¸ÀºÀ vÉÆÃj¹ ºÉýzÀ¼ÀÄ. D ¸ÀªÀÄAiÀÄzÀ°è £À£Àß vÀAzÉvÁ¬Ä ºÁUÀÆ £À£Àß ªÀÄUÀ¼À §½ AiÀiÁgÀÄ F jÃw ªÀiÁrzÀgÀÄ JAzÀÄ PÉýzÁUÀ £À£Àß ªÀÄUÀ¼ÀÄ £À£Àß §½ D jÃw AiÀiÁgÀÄ ªÀiÁrzÀgA É zÀÄ £À£ÀUÉ ºÉýzÀ¼ÀÄ. £À£Àß ªÀÄUÀ¼ÀÄ £À£Àß §½ vÀ£U À ÁzÀ PÀÈvÀåzÀ §UÉÎ 29 Spl.C.C.No.199/2017 ºÉýzÁUÀ PÀÆqÀ¯ÃÉ £Á£ÀÄ £À£Àß ªÀÄUÀ¼À SÁ¸ÀVà CAUÀU¼ À £ À ÄÀ ß ¥ÀjÃQë¹zÁUÀ DPÉAiÀÄ UÀÄ¥ÁÛAUÀ HvÀ¢AzÀ PÀÆr PÉA¥ÀŧtÚ¢AzÀ EvÀÄ.Û £À£ßÀ vÀAzÉvÁ¬Ä ªÀÄvÀÄÛ £À£Àß ªÀÄUÀ¼ÀÄ £À£Àß §½ ºÉýzÀ «µÀAiÀĪÀ£ÀÄß PÉý ºÁUÀÆ £À£Àß ªÀÄUÀ¼À UÀÄ¥ÁÛAUÀ HvÀ¢AzÀ , PÉA¥ÀÅ §tÚ¢AzÀ PÀÆrzÀ£ Ý ÀÄß £ÉÆÃr £À£ÀUÉ D ¸ÀªÀÄAiÀÄzÀ°è ±ÁPï D¬ÄvÀÄ ªÀÄvÀÄÛ F §UÉÎ DgÉÆæ2 ªÉÄÃqÀA §½ PÉüÀ¨ÉÃPÉAzÀÄ £Á£ÀÄ ¸ÁªÀ£ï ¥ÉèúÉÆAUÉ £À£Àß vÀAzÉ vÁ¬Ä, £À£ßÀ ªÀÄUÀ¼ÀÄ ºÁUÀÆ £À£Àß UÀAqÀ£À eÉÆvÉ §AzÉ."
Having elicited the said fact, no such denial suggestion suggested to this witness in respect of above said facts and circumstances. Further she was tested her veracity in respect of work style in Savan Play Home and got admission and also obtained answer that she has not enquired with the other children and their parents with regard to the alleged incident. Here it is relevant to note that the children who are below the age of 3½ years have no thinking capacity, if anything happened to them and what they have to do. They are always with playing mood. When such being the case, question of considering non enquiring with the other children and their parents in respect of the alleged incident is fatal to the case of prosecution doesn't arise.
28. Further she was elicited that:
"F ¥ÀæPÀgÀtzÀ WÀl£ÉAiÀÄ £ÀAvÀgÀ £À£Àß ªÀÄUÀ¼ÄÀ vÀÄA¨Á ºÉzjÀ PÉƼÀÄîwz Û ¼ ÀÝ ÀÄ DUÀ CªÀ½UÉ zsÉÊAiÀÄð vÀÄA§ÄªÀ ¸À®ÄªÁV F WÀl£ÉÉUÉ PÁgÀt£ÁzÀ DgÉÆæ1 gÀªg À £ À ÀÄß eÉÊ°£À°è EnÖgÀĪÀ PÁgÀt DvÀ §AzÀÄ 30 Spl.C.C.No.199/2017 ¤£ÀUÀÉãÀÄ ªÀiÁqÀĪÀÅ¢®è JAzÀÄ £ÁªÉà DPÉUÉ ºÉýzÁUÀ eÉÊ°£À ¥ÀzÀ DPÉUÉ w½¬ÄvÀÄ."
It is the defense of the accused person that the victim girl was tutored about the incident and she has stated same in her evidence of the alleged commission of evidence, but if this piece of evidence is taken into consideration, it is not safe to accept the alleged defense to believe the accused No.1 is an innocent. Further she was tested and elicited that:
"¢£ÁAPÀ B09.02.2017 PÉÌ ªÉÆzÀ®Ä ²Ã±Á JA§ ªÀåQÛAiÀÄ ºÉ¸j À £À §UÉÎ £Á£ÀÄ PÉýgÀ°®è JAzÀgÉ ¸ÀjAiÀÄ®è ¸ÁQë ¸ÀévBÀ D ¢£ÀPÉÌ ªÉÆzÀ®Æ ¸ÀºÀ ¥Àæw¢£À £À£Àß ªÀÄUÀ¼£ À ÀÄß ±Á¯ÉAiÀÄ°è £ÀqA É iÀÄÄwÛzÀÝ «µÀAiÀÄzÀ §UÉÎ PÉüÀÄwÛzÁÝUÀ ²Ã±Á CAPÀ¯ï JA§ ºÉ¸g À £ À ÀÄß ¸ÀºÀ DPÉ ºÉüÀÄwÛzÀÝ PÁgÀt D ºÉ¸g À £ À ÀÄß £Á£ÀÄ D ¢£ÀPÉÌ ªÉÆzÀ®ÃÉ PÉýzÉÝãÉ. £Á£ÀÄ ²Ã±Á JA§ ºÉ¸j À £À ªÀåQÛAiÀÄ£ÀÄß AiÀiÁgÀÄ JAzÀÄ ªÉÊAiÀÄQÛPª À ÁV £ÉÆÃrgÀ°®è JAzÀgÉ ¸Àj. ²Ã±Á JA§ ºÉ¸j À £À ªÀåQÛ AiÀiÁgÀÄ, J°è ªÁ¸À«gÀĪÀ£ÉA§ÄzÀgÀ §UÉÎ £À£ÀUÀÉ w½¢gÀ°®è JAzÀgÉÀ ¸ÁQë £À£Àß ªÀÄUÀ¼ÀÄ £À£Àß §½ ºÉýzÀ ¥ÀæPÁgÀ ²Ã±Á CAPÀ¯ï ¸ÁªÀ£ï¥Éº è ÉÆA£À¯Éèà EgÀĪÀAvÀºÀ ªÀåQÛAiÀiÁVgÀĪÀ£ÀÄ. £Á£ÀÄ ªÉÊAiÀÄQÛPªÀ ÁV ¸Àzj À ²Ã±Á JA§ ºÉ¸j À £À ªÀåQÛ ¸ÁªÀ£ï ¥ÉèúÉÆA£À°è EgÀĪÀ£Á CxÀªÁ E®èªÁ JA§ÄzÀgÀ §UÉÎ ¥Àj²Ã°¹gÀĪÀÅ¢®è JAzÀgÉ ¸Àj. "
Here it is relevant to note that when the victim girl identified the accused No.1 before the Court stating that he is Shreesha Uncle, question of disbelieving the stand taken by the prosecution that the accused No.1 is the Shreesha Uncle does not arise and it is not fatal to the case of prosecution even though this witness not enquired about the person called Shreesha Uncle is there in Savan Play Home or not. 31 Spl.C.C.No.199/2017
The accused also elicited that:
¢£ÁAPÀB10.02.2017 gÀAzÀÄ £Á£ÀÄ ¥ÉÇðøÀgj À UÉ zÀÆgÀÄ PÉÆlÖ £ÀAvÀgÀ £À£Àß ªÀÄUÀ¼ÀÄ £ÉÆAzÀ¨Á®QUÉ DgÉÆæ1 ²Ã±Á CAPÀ¯ï£À£ÀÄß £ÉÆÃrgÀĪÀÅ¢®è JAzÀgÉ ¸ÁQë zÀÆgÀÄ PÉÆlÖ £ÀAvÀgÀ £À£Àß ªÀÄUÀ¼ÀÄ £ÉÄÁAzÀ¨Á®Q DgÉÆæ1 ²Ã±ÁCAPÀ¯ï£À£ÀÄß £ÉÆÃrgÀĪÀÅ¢®è DzÀgÉ CzÀQÌAvÀ ªÉÆzÀ®Ä CzÉà ¢£À £À£Àß vÀªÀÄä ¢üÃgÀeï PÀĪÀiÁgï £À£Àß ªÀÄUÀ¼À£ÀÄß PÀgz É ÀÄPÉÆAqÀÄ PÀÈvÀåzÀ §UÉÎ «ZÁj¸À®Ä ¸ÁªÀ£ï¥ÉÃè ºÉÆAUÀÉ ºÉÆÃzÀAvÀºÀ ¸ÀAzÀ¨ð Às zÀ°è UÉÃmï£À M¼À DªÀgÀtzÀ°è DgÉÆæ1 EzÀz Ý £ ÀÝ ÀÄß £À£Àß ªÀÄUÀ¼ÀÄ £ÉÆÃr £À£Àß vÀªÄÀ ä¤UÉ vÉÆÃj¹gÀĪÀ¼A É zÀÄ ¸ÁPÀëå£ÀÄr¢gÀÄvÁÛg.É D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß UÀAqÀ ¸ÀºÀ ¥ÉèúÉÆÃA£À M¼ÀUÉ ºÉÆÃUÀĪÁUÀ DgÉÆæ1 M¼ÀV¤AzÀ ºÉÆgÀUÉ §gÀÄwÛzÄÀ z Ý £ ÝÀ ÄÀ ß £ÁªÀÅ ¸ÀºÀ £ÉÆÃrzÉÃÝ ªÉAzÀÄ GvÀj Û ¹gÀÄvÁÛg.É £ÁªÀÅ ¸ÁªÀ£ï¥ÉèºÆ É ÃAUÉ ºÉÆÃzÀAvÀºÀ ¸ÀAzÀ¨ð Às zÀ°è EvÀgÉ ªÀÄPÀ̼ÀÄUÀ¼ÀÄ AiÀiÁgÀÆ C°èg° À ®è. EzÀgÀ CxÀð £ÁªÀÅ D ¢£À ¨É¼ÀUÉÎ 9.00 UÀAmÉAiÀÄ M¼ÀUÉ C°èUÉ ºÉÆÃVzÉÃÝ ªÉ JA§ ¥Àæ±ÉßUÉ ¸ÁQë ¤RgÀªÁzÀ ¸ÀªÀÄAiÀÄ ºÉüÀ®Ä DUÀĪÀÅ¢®è DzÀgÉ ¨É¼ÀV£À ¸ÀªÄÀ AiÀÄzÀ°è D ¸À¼ Ü P À ÉÌ ºÉÆÃVgÀÄvÉÃÛ ªÀÉ JAzÀÄ £ÀÄr¢gÀÄvÁÛg.É "
Further the accused No.1 and 2 also elicited that:
"£Á£ÀÄ zÀÆgÀÄ PÉÆlÖ £ÀAvÀgÀ ¥ÉÇðøÀgÀÄ DgÉÆæ1 gÀªg À £À ÄÀ ß UÀÄgÀÄvÀÄ¥Àr¸ÀĪÀ ¸À®ÄªÁV ¤ªÀÄä ªÀÄUÀ¼ÀÄ £ÉÆAzÀ¨Á®QUÉ DgÉÆæ1 gÀªg À £À ÀÄß vÉÆÃj¹gÀĪÀgÁ JA§ ¥Àæ±ÉßUÉ ¸ÁQë £À£Àß ªÀÄUÀ½UÉ DgÀÉÆæ1 gÀªg À £À ÀÄß ªÉÊAiÀÄQÛPª À ÁV vÉÆÃj¹gÀĪÀÅ¢®è DzÀgÉ ¥ÉÇðøÀgÀÄ DgÉÆæ1 ªÀÄvÀÄÛ DvÀ£À vÀAzÉAiÀÄ ¥sÉÆmÉÆÃUÀ¼£ À ÀÄß vÉUzÉ ÀÄPÉÆAqÀÄ £À£Àß ªÀÄUÀ½UÉ vÉÆÃj¹zÁUÀ DgÉÆæ1 gÀªgÀ À ¥sÉÆmÉÆêÀ£ÀÄß £ÉÆÃr ºÉýzÀ¼A É zÀÄ GvÀj Û ¹gÀÄvÁÛg.É £À£Àß UÀAqÀ UËgÀªï eÉÆògÀªg À ÀÄ ¸ÀºÀ DgÉÆæ1 ªÀÄvÀÄÛ DvÀ£À vÀAzÉAiÀÄ ¥sÉÆÃmÉÆêÀ£ÀÄß CªÀgÀ ªÉƨÉʯï£À°è ¥Àqz É ÀÄPÉÆArgÀĪÀgÀÄ JAzÀgÉ ¸Àj."
The above said elicitation also confirms that the victim girl identified the accused No.1 to believe he has committed the offence.
29. No doubt it is true that the accused No.1 tested the veracity of evidence of Pw.1 in respect of medical evidence. But at this stage this Court feels to observe that mere non- availability of medical evidence is not a ground to disbelieve the 32 Spl.C.C.No.199/2017 offences alleged against accused No.1. It is the evidence of Pw.1 that:
"DPÀÉUÉ DUÀÄwÛzÀÝ £ÉÆëUÉ ¹Pïì ¨Ávï CAzÀgÉ ©¹¤Ãj£À l¨ï£À°è £À£Àß ªÀÄUÀ¼£ À ÀÄß PÀÆj¹ ¸ÁߣÀ ªÀiÁr¹zÉÃÝ £É JAzÀÄ £ÀÄr¢gÀÄvÁÛg.É £ÀªÀÄä ¨sÁµÀÉ CAzÀgÉ ¥ÀºÁr ¨sÁ¥ÉëAiÀÄ°è UÀÄnÖ JAzÀgÉ »A¢ ¨sÁµÉëAiÀÄ°è CAUÀÄÁn JAzÀÄ ªÀÄvÀÄÛ PÀ£Àßqz À °À è ¨Ég¼ À ÀÄ JA§ÄzÁVzÉ. "
If this piece of evidence is taken into consideration, it is quite natural that at the time of examination of the doctor she has deposed no such signs of commission of sexual activity finds place. But the victim girl clearly deposed about the act of the accused No.1 on her and she has received pain on her private part and as per the evidence of Pw.1, Pw.5 to Pw.8 the said private part was reddish in colour having pain while passing urine.
30. The accused No.1 and 2 also tested the veracity of evidence of this witness with regard to pet name of the accused No.1 as Shreesha, but nothing has been elicited to disbelieve the case of the prosecution in respect of the pet name of the accused No.1 was Shreesha. Further she was tested in respect of victim girl's hands not in reddish and no such marks of rope found in the said hands. Here it is relevant to note the 33 Spl.C.C.No.199/2017 symptoms and marks depend upon what type of knots made on the hands through rope. Merely because no such marks found on the hands of the victim girl, is not a ground to disbelieve the evidence of Pw.1 and the victim girl as Pw.2 with regard to the occurrence of alleged incident. Further the accused persons tested the veracity of the evidence of this witness in respect of Ex.P6, but nothing has been elicited favourable to the defense taken by the accused persons. Viewing from available material evidence on record, this Court feels to observe that whatever the complainant heard from her parents and what ever she has seen on the private part of the victim girl and what ever the victim girl told to her, she has clearly deposed by supporting the case of the prosecution. As such question of disbelieving her evidence at this stage doesn't arise and through the evidence of this witness the prosecution proved the alleged offences against accused No.1 beyond all reasonable doubt.
31. By going through the evidence of Pw.5-Baldev Singh Koundal-the grand father of the victim girl, in his chief examination he has given evidence by supporting the case of the prosecution and also he has clearly stated that on 09-02-2017 34 Spl.C.C.No.199/2017 he brought the victim girl from the Savan Play Home at about 12.30 p.m., and his grand daughter was silent and was not talking much with him. On enquiry she has not stated anything and simply kept quite. Further he has also deposed that his wife also enquired the victim girl and she informed about the incident occurred on her caused by the accused No.1. Further he has deposed that:
"EzÁzÀ ¸Àé®à ºÉÆwÛ£À £ÀAvÀgÀ £À£ÀߺA É qÀw £À£Àß ªÉƪÀÄäU½ À UÉ ¤Ã£ÀÄ §mÉÖAiÀÄ£ÀÄß §zÀ¯Á¬Ä¸À¨ÃÉ PÀÄ ºÁUÀÆ ¸Àé®à ºÉÆmÉÖUÉ Hl ªÀiÁqÀ¨ÃÉ PÀÄ JAzÀÄ §®ªÀAvÀ ªÀiÁrzÁUÀ £À£Àß ªÉƪÀÄäU¼ À ÀÄ §mÉÖAiÀÄ£ÀÄß §zÀ¯Á¬Ä¸À®Ä PÉÆqÀzÉ vÀ£Àß PÁ°£À ªÉÄÃ¯É PÁ®Ä ºÁQPÉÆAqÀÄ PÀĽvÀÄ©lÖ¼ÀÄ. £À£Àß ºÉAqÀw ¥ÀÅ£ÀB £À£Àß ªÉƪÀÄäU½ À UÉ AiÀiÁPÉ ¤Ã£ÀÄ §mÉÖ §zÀ¯Á¬Ä¸À®Ä ©qÀÄwÛ®è JAzÀÄ ºÉýzÁUÀ £À£Àß ªÀÉÄÁªÀÄäU¼ À ÀÄ £À£Àß ºÉAqÀwUÉ ¤Ã£ÀÄ ¸ÀºÀ ²Ã±Á CAPÀ¯ï vÀgÀ £ÉÆêÀÅ ªÀiÁqÀÄwÛÃAiÀiÁ JAzÀÄ PÉýzÀ¼ÀÄ. D ¥Àæ±ÉßUÉ £À£Àß ºÉAqÀw £Á£ÀÄ ¤£Àß CfÓ ¤£ÀUÃÉ PÉ £Á£ÀÄ £ÉÆêÀÅ ªÀiÁqÀ° ²Ã±Á CAPÀ¯ï K£ÀÄ £ÉÆêÀÅ ªÀiÁrzÀ JA§ÄzÁV £À£Àß ªÉƪÀÄäU½ À UÉ PÉýzÀ¼ÀÄ. DUÀ £À£Àß ªÀiÁªÀÄäU¼ À ÄÀ £À£ßÀ ºÉAqÀwUÉ ²Ã±Á CAPÀ¯ï £À£ÀߣÀÄß gÀÆ«ÄUÉ PÀgz É ÀÄPÀÉÆAqÀÄ ºÉÆÃzÀ£ÄÀ , DPÉAiÀÄ ¥ÁåAmï ªÀÄvÀÄÛ M¼ÀGqÀÄ¥À£ÀÄß ©aÑz£ À ÀÄ, DPÉAiÀÄ PÉÊAiÀÄ£ÀÄß PÀnÖzÀ£ÄÀ , DvÀ£ÀÄ vÀ£Àß ¥ÁåAmï ªÀÄvÀÄÛ M¼ÀGqÀÄ¥À£ÀÄß ©aÑz£ À ÀÉAzÀÄ ºÉüÀÄvÁÛ DvÀ£À ¨Ég¼ À À£ÀÄß vÀ£Àß UÀÄ¥ÁÛAUÀPÉÌ ElÖ£ÉAzÀÄ vÀ£Àß ¨Ég¼ À £ À ÀÄß UÀÄ¥ÁÛAUÀzÀ PÀqÉ vÉÆÃj¹ ºÉýzÀ¼ÀÄ. £ÀAvÀgÀ vÀ£Àß UÀÄdÓªÀ£ÀÄß (CAzÀgÉ ²Ã±Á CAPÀ¯ï£À UÀÄ¥ÁÛAUÀPÌÉ DPÉ UÀÄeÁÓ JAzÀÄ ºÉýzÀ¼ÀÄ) £À£Àß UÀÄ¥ÁÛAUÀPÉÌ ElÖ£ÉAzÀÄ ºÉüÀÄvÁÛ vÀ£Àß ¨Ég¼ À £ À ÀÄß UÀÄ¥ÁÛAUÀzÀ PÀqÉ vÉÆÃj¹ ºÉýzÀ¼ÀÄ, ºÁUÀÆ CvÀ¼ Û ÀÄ. D ¸ÀªÀÄAiÀÄzÀ°è ±ÉÆèsÁ ªÉÄÃqÀA ªÀÄvÀÄÛ vÀ£Àß ¸ÀÉßûvÉ jvÀ£Àå¼À£ÀÄß PÀÆVzÀgÀÆ CªÀgÁågÀÄ C°èUÉ §gÀ°®è JAzÀÄ ºÉýzÀ¼ÀÄ. £À£ÀߣÀÄß ©qÀÄ JAzÀÄ D ¸ÀªÀÄAiÀÄzÀ°è ²Ã±Á CAPÀ¯ïUÉ ºÉýzÉ DzÀgÉ DvÀ £À£ÀߣÀÄß ©qÀ°®èªA É zÀÄ ºÉýzÀ¼ÀÄ. EzÁzÀ £ÀAvÀgÀ MAzÀÄ ZÁPÀ¯ÃÉ mï£ÀÄß PÉÆlÄÖ DPÉAiÀÄ£ÀÄß ©lÖ£ÉAzÀÄ £À£Àß ªÉƪÀÄäU¼ À ÄÀ £ÀªÀÄä §½ ºÉýzÀ¼ÀÄ. F J¯Áè «µÀAiÀĪÀ£ÀÄß £À£Àß ºÉAqÀw £À£Àß ªÉƪÀÄäU½ À AzÀ PÉýzÀ PÀÆqÀ¯ÃÉ £À£Àß ºÉAqÀw £ÉÆAzÀ¨Á®QAiÀÄ §mÉÖAiÀÄ£ÀÄß ©aÑz¼ À ÄÀ . £ÀAvÀgÀ £À£Àß ªÉƪÀÄäU¼ À À UÀÄ¥ÁÛAUÀª£À ÀÄß £À£Àß ºÉAqÀw £ÉÆÃr £À£ßÀ ªÀÆ É ªÀÄäU¼ À À UÀÄ¥ÁÛAUÀªÀÅ HvÀ¢AzÀ PÀÆrzÀÄÝ PÀAzÀÄ §tÚ¢AzÀ PÀÆrvÉA ÛÉ zÀÄ ºÉýzÀ¼ÄÀ . DPÉ ªÀÄÆvÀ櫸Àdð£É ªÀiÁqÀ®Ä DUÀzÉ Gj¬ÄAzÀ CvÀ¼ Û ÀÄ, DUÀ £À£ßÀ ºÉAqÀw DPÉUÉ E£ÀÆß ¸Àé®à ¤ÃgÀÄ PÉÆlÄÖ PÀÄrAiÀÄ®Ä ºÉýzÁUÀ DPÉ ¤ÃgÀÄ PÀÄrzÀÄ ªÀÄÆvÀæ «¸Àdð£É ªÀiÁrzÀ¼ÀÄ. DPÉUÉ ¸Àé®à DºÁgÀª£ À ÀÄß w£Àß®Ä PÉÆmÁÖUÀ DPÉ ¸Àé®à wAzÀÄ ¸ÀĪÀÄä£ÁzÀ¼ÀÄ."35 Spl.C.C.No.199/2017
No doubt it is true, this witness is an hear say witness; he heard the incident through the victim girl, when such being the case question of disbelieving the said evidence doesn't arise. He has also deposed in respect of taking the victim girl to the clinic, but the doctor refused to give treatment, because it is a criminal case and he has instructed them to go to Government hospital. Thereafter this witness along with the Pw.1, Pw.6 to Pw.8 went to Savan Play Home, met the accused No.2, but she refused the alleged incident. The accused persons tested his veracity by eliciting some commission and omission and except denial suggestion, nothing has been elicited favourable to the defense of the accused persons with regard to the alleged incident. Viewing from the available material evidence on record produced by the prosecution through this witness, this Court feels to observe that the prosecution establishes the alleged offences against accused No.1 beyond all reasonable doubt.
32. By going through the evidence of Pw.6-Savithri, the mother of the complainant, the grand mother of the victim girl, she has also deposed in her chief examination by supporting the case of the prosecution and what ever the statement given 36 Spl.C.C.No.199/2017 before the police. No doubt it is true that this witness is also an hear say witness and what ever the victim girl stated to her she has deposed. Further her evidence is very clear in respect of that:
"DPÉ ªÀÄ£ÉUÉ §AzÀ ¸ÀªÀÄAiÀÄzÀ°è PÉÆÃ¥À¢AzÀ EzÀ¼ Ý ÀÄ, £Á£ÀÄ DPÉUÉ §mÉÖ §zÀ¯Á¬Ä¸À®Ä ºÉÆÃzÁUÀ £À£ÀߣÀÄß ªÀÄÄlÖ¨ÉÃqÀ £À£Àß §mÉÖ §zÀ¯Á¬Ä¸À¨ÃÉ qÀ JAzÀÄ ºÉýzÀ¼ÀÄ. £Á£ÀÄ DPÉAiÀÄ£ÀÄß JwÛPÆ É AqÀÄ ªÀÄr°£À°è PÀÆj¹PÉÆAqÀgÀÆ ¸ÀºÀ DPÉ §mÉÖ §zÀ¯Á¬Ä¸À®Ä M¥Àà°®è, ¸ÀĪÀiÁgÀÄ MAzÀÄ UÀAmÉU¼ À À PÁ® EzÉÃjÃw ¸ÀvÁ¬Ä¹zÀ¼ÀÄ. £Á£ÀÄ DPÉUÉ Hl ªÀiÁqÀÄ ¤ÃgÀÄ PÀÄr JAzÀÄ ºÉýzÁUÀ®Æ ¸ÀºÀ £À£ÀUÃÉ £ÀÄ ¨ÉÃqÀ £À£ßÀ £ÀÄß ªÀiÁvÀæ PɼÀUÉ E½¸À¨ÃÉ qÀ JAzÀÄ ºÉýzÀ¼ÀÄ. £Á£ÀÄ ¸ÀªÀÄAiÀĪÁUÀÄwÛzÉ §mÉÖ §zÀ¯Á¬Ä¸ÀÄ Hl ªÀiÁqÀÄ JAzÀÄ ºÉýzÁUÀ®Æ ¸ÀºÀ ¤Ã£ÀÄ ªÀiÁvÀæ £À£ßÀ §mÉÖ ©ZÀ¨ Ñ ÉÃqÀ, ²Ã±Á CAPÀ¯ï ¸ÀºÀ £À£Àß §mÉÖ ©aÑ £À£Àß UÀÄ¥ÁÛAUÀPÉÌ vÀ£ßÀ ¨Ég¼ À ÄÀ UÀ¼£ À ÀÄß ElÖ JAzÀÄ ºÉüÀĪÀ jÃwAiÀÄ°è vÀ£Àß PÉʨg É ¼ À £ À ÀÄß vÀ£Àß UÀÄ¥ÁÛAUÀzÀ PÀqÉ vÉÆÃj¹ ¸À£Éß ªÀÄÄSÉãÀ ºÉýzÀ¼ÀÄ. £ÀAvÀgÀ DvÀ vÀ£Àß UÀÄ¥ÁÛAUÀª£ À ÀÄß £À£Àß UÀÄ¥ÁÛAUÀPÉÌ ElÖ£ÉAzÀÄ (UÀÄdÓª£ À ÀÄß ElÖ£ÉAzÀÄ vÉÆÃj¹ vÀ£Àß PÉÊAiÀÄ£ÀÄß vÀ£ßÀ UÀÄ¥ÁÛAUÀzÀ PÀqÉ vÉÆÃj¹) ºÉýzÀ¼ÀÄ. £Á£ÀÄ ±ÉÆèsÁ ªÉÄÃqÀA ±ÉÆèsÁ ªÉÄAqÀA JAzÀÄ PÀÆVzÀgÀÄ AiÀiÁgÀÄ §gÀ°®è, PÉÆ£ÉUÉ ZÁPÀ¯ÃÉ mï PÉÆlÄÖ PÀ¼ÄÀ »¹zÀ£A É zÀÄ £À£Àß §½ ºÉýzÀ¼ÀÄ. EzɯÁè ªÀiÁqÀĪÀÅzÀPÉÌ ªÉÆzÀ®Ä DvÀ£ÀÄ ºÀU¢ ÎÀ AzÀ £À£Àß ªÉƪÀÄäU¼À À PÉÊAiÀÄ£ÀÄß PÀnÖzÀ£ Ý ÉAzÀÄ ºÉýzÀ¼ÀÄ."
If this piece of evidence is taken into consideration it corroborates with the evidence given by the victim girl. On perusal of cross-examination of this witness by the accused persons, they have tested the veracity of evidence by eliciting some commission and omission and nothing has been elicited favourable to the defense of the accused persons with regard to the alleged incident. Viewing from the available material evidence on record, this Court has no impediment in arriving 37 Spl.C.C.No.199/2017 into conclusion that the prosecution establishes the alleged offences against accused No.1 beyond all reasonable doubt.
33. By going through the evidence of Pw.7-Dheeraj Kumar, the son of Pw.5 and Pw.6, brother of complainant and maternal uncle of the victim girl, he has given evidence by supporting the case of the prosecution. Here it is relevant to note that he is not an eye-witness, he is an hear say witness and what ever the victim girl told to him he has deposed. Hence, question of disbelieving the evidence of this witness doesn't arise. The accused persons tested the veracity of evidence of this witness by eliciting some commission and omission. Except denial suggestion, nothing has been elicited favourable to the defense taken by them. Viewing from the available material evidence on record through this witness, this Court feels to observe that the prosecution establishes the offences against accused No.1 beyond all reasonable doubt.
34. By going through the evidence of Pw.8-Gaurav R.Joshi, the father of the victim girl, husband of complainant, son-in-law of Pw.5 and Pw.6 and brother-in-law of Pw.7, he has 38 Spl.C.C.No.199/2017 also deposed in his chief examination by corroborating the evidence of the victim girl. No doubt it is true that he is also an hear say witness and stated what ever he has heard from the victim girl and his in-laws he has deposed and on enquiry with the victim girl and also saw the victim girl was inactive. Further he has deposed that:
"£ÉÆAzÀ ¨Á®Q ®ªÀ®«PɬÄAzÀ EgÀzÉ ªÀÄAPÁVzÀ¼ Ý ÄÀ , CªÀ½UÉ PÀµÀÖ¥ÀÅlÄÖ Hl ªÀiÁr¹ ªÀÄ®V¹zɪÀÅ. "
Further he has deposed that at about 12.00 hours in the mid-night his brother-in-law came to house and told all the incident, what ever he has heard and both went to the police station to lodge the complaint, but the police not properly advised them and directed them to go to POCSO Office, but as the time was night, they return to home and on the next day his brother-in-law came to his house, but the victim girl thinking that he come to take her to play home, she refused to accompany with him to play home stating that there is bad uncle. At that time his brother-in-law taken her to Savan Play Home to show who is the bad uncle in the Savan Play Home, she has shown the accused No.1 stating that he is the bad uncle. If the above said evidence is taken into consideration, it 39 Spl.C.C.No.199/2017 is very clear that this witness also supported to the case of the prosecution. The accused persons tested the veracity of the evidence of this witness by eliciting some commission and omission and except denial suggestion, nothing has been elicited favourable to the defense taken by the accused persons.
35. Viewing from the available material evidence on record by the prosecution through Pw.1, Pw.2, Pw.5 to Pw.8, no doubt it is true that Pw.1, Pw.5 to Pw.8 are not eye-witnesses, they are hear say witnesses, but Pw.2 who is the victim girl clearly deposed that what had happened on her which is caused by the accused No.1. When such being the case, it is not safe to disbelieve hear say witness evidence who are the mother, father, grand parents and maternal uncle. Further while cross-examining Pw.1, Pw.5 to Pw.8 the accused persons not elicited anything about the complainant and other witnesses having ill-will with Savan Play Home and under that grudge they have lodged a false complaint against them. At the same time this Court feels to observe that even if there is any will-will with the Savan Play Home, but no parents will bid the modesty of their daughter to fulfill the alleged ill-will with the accused 40 Spl.C.C.No.199/2017 persons. With these, now left with the available material evidence in respect of Ex.P7 produced by the prosecution and its genuinity of existence.
36. By going through the evidence of Pw.14-P.S.I.- Kathyani Alva, she has deposed that she was summoned by DCP to get statement of the victim girl of the case registered in Vijaya Nagar Police Station, since she is the only lady P.S.I., in that division. Accordingly she went to Vijaya Nagar Police Station on 10-02-2017 and taken the victim girl to Vani Vilas Hospital along with her father for medical check-up. Thereafter on 11-02-2017 she has recorded the statement of the victim girl in her house in the presence of SJPU social worker-Kavitha, the parents and grand parents of the victim girl. The victim girl has given statement in Hindi, since this witness knew Hindi, she put the questions in Hindi and got the answer in Hindi and translated the same to Kannada as per Ex.P7.
37. On perusal of Ex.P-7 it is true that it is in the form of questions and answers which is recorded by this witness and at the same time it is also true that no such Shara mentioned 41 Spl.C.C.No.199/2017 about the victim girl know only Hindi language and having knowledge of little bit English and not knowing Kannada, as such she has translated the same from Hindi to Kannada. While cross-examining this witness the accused persons tested her veracity and also elicited the same, but when the victim girl deposed before the Court about the alleged offences caused by the accused No.1 on her, question of considering mere non- mentioning of shara is a fatal to the case of the prosecution does not arise.
38. The learned advocate for accused persons argued and high lighted with regard to the above question and answers. Here it is relevant to note that this witness questioning the victim girl in respect of Savan Play Home, while answering the victim girl has answered as in that room by showing her finger and it refers to the house of complainant and not Savan Play Home. But here it is relevant to note that this witness questioning the victim girl about Savan Play Home and getting answer from her. No doubt it is true that she has mentioned the victim girl pointing her finger and shown the room. But at the same time this Court feels to observe that the feeling of the 42 Spl.C.C.No.199/2017 victim girl in her face seen by this witness and other person who were assembled there at that time not either accused persons or the advocate of the accused persons to consider the said answer pertains to complaint's house and not Savan Play Home. May be the victim girl thinking that room belonged to Savan Play Home and pointed her finger, that doesn't mean it is fatal to the case of the prosecution. The contents of Ex.P7 is very clear that the victim girl again and again deposing the very same thing what ever happened on her even after lapse of 8 months of recording of statement, before the Court also she has deposed the very same thing what ever she has stated before this witness as per Ex.P7. As such the cross-examination made by the learned advocate for accused persons to this witness is no way helpful to the defense taken by the accused No.1 and 2 herein. The prosecution in order to support the evidence of this witness and the contents of Ex.P7 it has produced the evidence of Pw.20-Kavitha.
39. By going through the evidence of Pw.20-Kavitha, she has deposed that on 10-02-2017 she was summoned by Vijaya Nagar Police and on their request she went to Vijaya Nagar 43 Spl.C.C.No.199/2017 police station on 11-02-2017 at about 06.00 p.m., thereafter she went along with Pw.14-P.S.I. Kathyani to the house of the victim girl. In the house along with the victim girl her parents and grand parents were assembled. She has made counseling to the victim girl. According to her the victim girl has stated as per Ex.P7 and her signature is Ex.P7(d). She has also made report as per Ex.P29 and her signature is Ex.P29(a). Further she has deposed that the P.S.I.-Kathyani showed the photo in the mobile and the said photo pertains to the accused No.1 and she has also identified the accused No.1. No doubt it is true that the accused persons tested veracity of this witness by eliciting some commission and omission and also whatever cross-examination made on Pw.14 also the cross-examination in the same line of Ex.P7, but nothing has been elicited through this witness to disbelieve the alleged offences against accused No.1. Viewing from the material evidence of Pw.14 and Pw.20 this Court has no impediment in coming to the conclusion that what ever the victim girl stated before them, having written in Ex.P7 and not more than that. Mere pointing towards a room in the house of complainant is not a ground to discard the 44 Spl.C.C.No.199/2017 evidence of these two witnesses and the contents of Ex.P7 to disbelieve offence against accused No.1.
40. Further Pw.14 deposed that she went along with the victim girl and her mother to the Central Jail in order to participate in Test Identification Parade of the accused No.1, for that the prosecution produces the evidence of Pw.15- V.Hanumantharayappa-the Thashildar. He has deposed that on 06-03-2017 he has conducted Test Identification Parade in Parappana Agrahara Central Jail. He has taken the case worker along with him and at that time the victim girl and her mother were also present. In the Test Identification Parade the victim girl identified the accused No.1 stating that he is the Shreesha uncle. He has also deposed that his case worker was knowing Hindi language and he has translated from Hindi to Kannada and from Kannada to Hindi and he has given report as per Ex.P24. Through this witness the prosecution got marked Ex.P22, Ex.P23 and Ex.P25 also.
41. The accused persons cross-examined this witness by eliciting some commission and omission and denied the process 45 Spl.C.C.No.199/2017 of conducting Test Identification Parade of the accused No.1, for that he has denied the same. He was also tested his veracity with regard to the accused No.1's photo shown by the parents of the victim girl stored in their mobile. No doubt it is true that he has shown ignorance about the same, but at the same time the victim girl since from the begaining she has stated the act done on her by Shreesha uncle in Savan Play Home, who is none other than the accused No.1. Viewing from the available material evidence on record produced through Pw.14, Pw.20 and Pw.15, this Court feels to observe that even before the police, social worker, the victim girl stated what ever she has stated before the Court and nothing more than that. Even at the time of identification of the accused No.1, she has identified the accused No.1 before Pw.15. When such being the case, it is not safe to disbelieve the alleged offences against accused No.1. With these now left with the available material evidence produced by the prosecution of Pw.12-Dr. Shashikala B. Patil.
42. By going through the evidence of Pw.12- Dr.Shashikala B. Patil, she has deposed that she has received requisition from Vijaya Nagar Police on 10-02-2017 and on the 46 Spl.C.C.No.199/2017 very same day she has examined the victim girl at about 05.00 p.m, who was accompanied with her father and P.S.I. Kathyani and she made medical check up and found no such external injury on her body, her stomach was soft in nature, no external injuries at genital area, no redness, hymen was intact. But she has recorded statement in Ex.P15 stating that father of the victim girl in respect on 09-02-2017 at about 12.30 p.m., the victim girl was brought to her grand parent's house, taken to bath room, she started crying while passing urine, when her grand mother was taking out her pant and undergarment child told no, child started telling one of the uncle at play home (his name Sanjay) took her to a room at play home tied her hands with a rope, took out her pant and panty, inserted his finger in the genital area. A fat worm like structured was passed in the area of passing urine. After some time he left her out. After this incidence child has become dull and not sleeping properly. Genital area has been washed since the time of act, clothes have been changed.
43. Further she has deposed that she has collected vaginal swab, rectal swab, clothes and sent to F.S.L. After 47 Spl.C.C.No.199/2017 receiving report from F.S.L., she has given report as per Ex.P16 stating that no suggestive of an act like that of sexual intercourse are absent. No doubt it is true that the accused not cross-examined this witness, because of final opinion given by the doctor as per Ex.P16. Here it is not in dispute as per the evidence of complainant, she has washed the genital part of the victim girl in a hot water, since the victim girl was suffering from pain and she was unable to pass urine. The father of the victim girl also told about washing of genital part of the victim girl before the doctor. When such being the case, it is quite natural the doctor has given the opinion as per Ex.P16. At the same time since from the beginning the victim girl stated the act done by the accused No.1 before her parents, grand parents, maternal uncle and also before woman P.S.I and the social worker. She has also stated before the above said persons what ever act done by the accused No.1, question of disbelieving the act of the accused No.1 at this stage does not arise only on the ground that the opinion as stated in Ex.P16 by the doctor.
44. With regard to the character of the accused No.1, in order to prove the character of accused No.1, the prosecution 48 Spl.C.C.No.199/2017 also produced the evidence of Pw.21-Dr.Kumuda Rani-Assistant Director of F.S.L. She has deposed that she has received sealed cover on 28-03-2017 from H.C. Shiva Kumar in respect of mobile phones-Apple I Phone Model No.A1 778 and IMEI No. 353778080272838, in that mobile Airtel SIM card was fixed. Further she has also deposed that she has given identity mark as D1a and D1b. Another sealed cover opened by her and found Samsung mobile phone of model No.SM-A510 FD and IMEI No. 358005/07/D15727/3 and another IMEI No. 358006/ 07/D15727/1, wherein JIO SIM card inserted. She has marked the said mobile as D2a and SIM Card as D2b. She has inserted the said mobiles in the available instrument of FSL viz., UFED physical Analyzer and extracted data of both the mobiles through the said instrument. She has also identified MO9 and MO10-both mobiles. She has also given her opinion as per Ex.P30 and model seal as per Ex.D31. She has identified the pen drives and also extracted the said data by inserting the pen drive to the laptop before the Court and also she has deposed that in Appel I phone there were 39 obscene photos, 14 obscene videos as per annexure-A1 and A2 and there were 24638 photos 49 Spl.C.C.No.199/2017 and 321 videos in the said mobile and the same was marked as annexure-A3, but no such photos pertains to child. She has also given web history of Apple mobile as per Annexure-4. Here while answering the question as per prosecution case under section 313 of Cr.P.C., the accused No.1 stated that the Appel I Phone belongs to him and he does not know the Samsung mobile phone belongs to whom, but the data of Samsung mobile phone is also very clear that no such obscene photos and videos in the said phone. If the said statement and the photos and videos available in the pen drive as per Ex.P11 is taken into consideration, it is very clear that the accused No.1 was having such type of character.
45. The accused cross-examined this witness by eliciting some commission and omission with regard to the repetition photos and videos and also suggested the said phones were seized on 10-02-2017 at about 04.35 to 05.00 p.m. and sealed the same and also suggested that item No.1was opened earlier to 02-11-2017. Here it is relevant to note that it is not in dispute that the phones were seized on 10-02-2017. In order to know whether any obscene photos or videos found the said 50 Spl.C.C.No.199/2017 mobiles, may be it was opened and found the said scenes and also in order to get confirmation it was sent to FSL on 02-11- 2017. Merely the phones are opened earlier to 02-11-2017 is not a fatal to the case of the prosecution in respect of commission of offence by the accused No.1 on the victim girl. Through this witness the prosecution establishes the act of the accused No.1 that he has seen the obscene photos and videos and it is the case of the prosecution also that on seeing the same he has enraged and committed the act on the victim girl as stated in the complaint.
46. At this state it is worthwhile to emphasis on the decision reported in:
1. 2008 Crl.L.J Page 710 S.C in Rajendra Datta Zarekar Vs. State of Goa, wherein it had been observed that:
"To constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of law."51 Spl.C.C.No.199/2017
2. 2010 Crl.L.J. Page 517 (SC) in Wahid Khan Vs. State of Madhya Pradesh, wherein it had been observed that:
"Slightest penetration sufficient-Even slightest penetration is sufficient to make out an offence of rape and depth of penetration is immaterial. Expl.1 to old Section 376 IPC."
3. 2010(4) Kar.L.J. Page 412 (SC) in Santhosh Moolya and another Vs. State of Karnataka, wherein it had been observed that:
"Rape-Sufficiency of oral evidence of prosecurtrix to base conviction for Rape is such humiliating experience for woman that she would rather suffer silently than to disclose incident to falsely implicate somebody asking for corroboration of her statement for relying upon it amounts to adding insult to injury-Evidence of prosecurtrix is on par with evidence of injury witness and to an extent even more reliable conviction can be based on sole testimony of prosecurtrix except in cases of high improbability."
4. 2009 Crl.L.J. Page 393 (SC) in State of U.P. Vs. Munshi, wherein it had been observed that:
"Conviction can be recorded on the sole evidence of the prosecurtrix-It is well settled that a prosecurtrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the Court of facts finds it difficult to accept the version of the prosecurtrix on its face value, it may search for evidence, direct or circumstantial, which 52 Spl.C.C.No.199/2017 would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice would do."
5. (2015) 2 SCC (Cri) Page 744- in Deepak Vs. State of Haryana, wherein it had been observed that:
"Penal Code, 1860-S.376-Rape Victim-Credibility- Principles summarized-Failure of investigating agency to seize corroborative evidence-Effect-Held, testimony of prosecurtrix is vital and unless there are compelling reasons, which necessitate looking for corroboration of her statement or where there are compelling reasons for rejecting of her testimony, there is no justification on part of court to reject her testimony-In present case there were no such compelling reasons, and remaining evidence corroborated testimony of prosecurtrix- Conviction confirmed."
47. The learned Special Public Prosecutor has also relied on the following decisions reported in:
1. 2008 Crl.L.J Page 4410 in Ratan Acharjee Vs. State of Tripura, wherein it had been observed that:
"Penal Code (45 of 1860).S.376-Rape-Even an attempt to penetrate penis into the vagina by force with mere vulval penetration without rupture of hymen-is sufficient to hold accused guilty for offence or rape."
2. (2000) 5 SCC Page 30 in State of Rajasthan Vs. N.K. wherein it had been observed that:
53 Spl.C.C.No.199/2017
"Penal Code, 1860-S.375-Rape-Evidence- Testimony of prosecurtrix-should be appreciated on the basis of probabilities like testimony of any other winess and conviction can be based solely on such testimony-But if court finds it difficult to accept her testimony, it may seek assurance to her testimony, which may be short or corroboration, form other evidence.
Criminal Trial-Witness-Related witness-Father of prosecurtrix would not ordinarily subscribe to false story of rape on his daughter and thereby invite ignominy."
3. (2001) 6 SCC Page 71) in State of H.P. Vs. Gian Chand, wherein it had been observed that:
"Medical jurisprudence-Rape-Examination of victim-External marks on victim's body-Age of victim- Held, such external marks need not be present on the body of a child who is incapable of offering any resistance-Penal Code, 1860, Ss.375 and 376.
Medical Jurisprudence-Rape-Examination of accused-External marks on the body of accused-Age of victim and delay as factors-Held, such marks need not be present when the victim was a girl of age of 5 years 6 months-Besides, nearly two days had already passed when medico-legal examination was conducted on the accused in the present case- Penal Code, 1860, Ss.375 and 376."
48. Here no doubt it is true that the learned advocate for accused persons argued that no such medical evidence available on record to believe the alleged act of the accused No.1 on the victim girl, but at the same time the sole evidence of the victim girl itself is sufficient to believe that the accused No.1 has 54 Spl.C.C.No.199/2017 committed rape on her as stated by her. Though the facts and circumstances of above case decisions and facts and circumstances of the case on hand are different one, but the ratio of principle is clearly applicable to the present case on hand. The learned advocate for accused persons relied on the decision reported in 2016(1) AICLR 350 (S.C.) and submitted the ratio of principle is applicable to the present case on hand. But with due respect to the learned advocate for accused persons, this Court feels to observe that the facts and circumstances of above case decision and facts and circumstances of the case on hand are different one, and the ratio of principle of above said decision is not applicable to the present case on hand. With these now left with the available other material evidence on record produced by the prosecution.
49. By going through the evidence of Pw.22-H.Krishna Murthy-Police Inspector, he has deposed that on 10-02-2017 at about 01.45 p.m., the complainant came and lodged complaint as per Ex.P1 and he has received the same and on the basis of said complaint registered the case in Crime No.67/2017 under section 376 of IPC and section 3, 4, 5(L) and 6 of POCSO Act, 55 Spl.C.C.No.199/2017 2012. He made shara and signed as per Ex.P1(a) and he has prepared FIR as per Ex.P32 and his signature is Ex.P32(a).
50. Here the prosecution by producing the evidence of the complainant established the guilt of the accused beyond all reasonable doubt. Further Pw.22 conducted investigation and requested the assistance of woman P.S.I., to the D.C.P., accordingly Pw.14-P.S.I. Kathyani Alva was entrusted to assist to the investigation, since the victim is a child. He has further deposed that Cw.31 had taken the victim girl for medical examination at Vani Vilas Hospital along with H.C. Thereafter, the accused No.1 was sent for medical examination through escort of H.C.5724-Srinivas Murthy, H.C.6883-Umesh, H.C.7088-Yeshwanth and Constable-4474-Santhosh. On the very same day he has conducted spot mahazar as per Ex.P2 from 03.00 p.m., to 03.45 pm., and his signature is Ex.P2(c). At the time of spot mahazar he has seized Ex.P3, Ex.P4, Ex.P8 and Ex.P9 documents and his signature is Ex.P3(a), Ex.P4(a) and the said documents were subjected to P.F.No.28/2017. On the very same day he has entrusted the police personnel to trace out the accused No.1 and the police personnel brought the 56 Spl.C.C.No.199/2017 accused No.1 and given report as per Ex.P33 and his signature is Ex.P33(a).
51. In order to prove the process of conducting of mahazar, the prosecution produces the evidence of Pw.3-Pavan @ Pavan Kumar. He has deposed that on 10-02-2017 at about 3.30 hours he was on the way towards Vijaya Nagar, R.P.C. Layout, 7th Cross, he saw some crowd assembled at Savan Play Home. He went to see the same as to what had happened, at that time the Police Inspector summoned him to act as Pancha for spot mahazar and also told that an incident has taken place against a child of sexual abuse. He has consented to act as Pancha and thereafter the spot Panchanama was taken place as per Ex.P2 and also seized Ex.P3, Ex.P4, Ex.P8 and Ex.P9 and the police written the spot Panchanama there itself before him. At that time one Chandrasekhar was also present. Further he has deposed that on 12-02-2017 again the police summoned him to the station. He went to station at about 09.45 a.m., the police taken him to Savan Play Home and seized Samsung mobile and thread used by the accused No.1. The thread was marked as MO1 and also mahazar was drawn as per Ex.P11 57 Spl.C.C.No.199/2017 and his signature is Ex.P11(b). The accused tested the veracity of evidence of this witness, except denial suggestion nothing has been elicited favourable to the defense taken by the accused persons.
52. By going through the evidence of Pw.4- Chandrashekar, he has also given evidence as that of Pw.3 and told that on that day at about 04.00 p.m., he was on the way to meet his friends, at R.P.C. Layout, 7th Cross, he saw some crowd assembled and he went there to see as to what was happened. At that time the police requested him to act as Pancha stating that in Savan Play Home, a child was sexually abused. He has consented, accordingly the spot Panchanama was conducted as per Ex.P2 and police seized Ex.P3, Ex.P4, Ex.P8 and Ex.P9. Again on 12-02-2017 he was summoned to police station and conducted mahazar as per Ex.P11 at about 09.30 a.m., to 10.00 a.m., and seized MO1 and one Samsung mobile produced by the accused No.2. He has also identified MO10-Samsung mobile. The accused tested the veracity of evidence of this witness by eliciting some commission and omission, except denial suggestion nothing has been elicited 58 Spl.C.C.No.199/2017 favourable to the defense taken by the accused herein. Through the evidence of Pw.3 and Pw.4 the prosecution has established the process of conducting mahazar as per Ex.P2 and Ex.P11 by the Pw.22.
53. Pw.22 further deposed that he has arrested the accused No.1 by following 11 points of guideline and recorded the voluntary statement of accused No.1. He has admitted about sexual intercourse and harassment caused to the victim girl and he is ready to show the spot and ready to produce the thread used for tying the victim girl hands and also ready to produce his mobile and the said voluntary statement marked as Ex.P34 and his signature is Ex.P34(a) and Investigation Officer's signature marked as Ex.P34(b).
54. On perusal of signature of the accused No.1 as per Ex.P34(b) it tallied with the part signature found in Ex.P10. Further Pw.22 deposed that on the file of voluntary statement as per Ex.P34 the accused No.1 produced Apple I Phone and the same was seized as per Ex.P28 and his signature is Ex.P28(b) and the same was subjected to P.F.No.28/2017 and he has also 59 Spl.C.C.No.199/2017 identified MO9-Appal I Phone. This phone is not disputed by the accused No.1 also.
55. In order to establish the alleged process of recovery of MO9, the prosecution produced the evidence of Pw.18. He has deposed that on 10-02-2017 the police summoned him to the station stating that the accused No.1 is producing MO9 and he has used the said MO9 to abuse the victim girl sexually. Accordingly the process of mahazar conducted from 04.30 p.m., to 05.30 p.m., as per Ex.P28 and his signature is Ex.P28(a). He has also identified MO9 and his signature is MO9(a). In the cross-examination except denial suggestion nothing has been elicited favourable to the stand taken by accused persons. At this stage this Court feels to observe that the prosecution establishes the seizure of mobile as per MO9 by conducting mahazar as per Ex.P28.
56. Pw.22 further deposed that he has sent the accused No.1 for medical examination to Victoria Hospital with escort and recorded the statement of Cw.5 and Cw.6. He has also recorded the statement of Cw.27 to Cw.31. On 11-02-2017 he 60 Spl.C.C.No.199/2017 has sent the victim girl for medical examination to Vani Vilas Hospital and on the very same day he has produced the accused No.1 before Court with remand application through the escort and taken him for police custody for three days. On that day he has recorded the statement of Cw.7 to Cw.10. Cw.11 stated before him as per Ex.P2, statement of Cw.12 is as per Ex.P13.
57. On perusal of the evidence of Pw.9 who is Cw.11 herein viz., Vani-Aya of the Savan Play Home she turned hostile to the case of prosecution and also stated that she has not given any statement as per Ex.p12 and also she came to know only about the sexual abuse has taken place in Savan Play Home. The accused also tested the veracity of the evidence of this witness and elicited that she has not seen Gaurav R. Johsi and when she reported to duty at about 09.00 a.m., on 09-02-2017 the accused No.1 was not in the home. Here it is relevant to note that the accused No.2 is master to this witness. It is quite natural to assist the defense of the accused No.2. As such the evidence of this witness is no way helpful to the defense taken by the accused No.1 and 2 herein.
61 Spl.C.C.No.199/2017
58. By going through the evidence of Pw.10-Renuka, she has also turned hostile to the case of the prosecution and deposed that she has not given statement as per Ex.P13 before police. Further the accused No.1 and 2 also cross-examined this witness by eliciting some commission and omission. Similar contention taken to this witness as that of Pw.9. Here also she is an Aya of Savan Play Home and working under the accused No.2. It is quite natural that she has to support the defense of the Master, as such whatever she stated in her evidence is not acceptable to believe the alleged defense of the accused No.1 and 2, when the victim girl aged about 3½ years has clearly deposed about the incident caused on her by the accused No.1.
59. Further Pw.22 deposed that he has requested Pw.14 to record the victim girl's statement in front of her parents and also SJPU Social worker as per Ex.P7 and his signature is Ex.P7(b) Here it is relevant to note that Pw.14 and Pw.20 while giving their evidence they have supported to the case of the prosecution and there is no such evidence elicited through 62 Spl.C.C.No.199/2017 Pw.14 and Pw.20 to disbelieve the case of the prosecution by the accused No.1 and 2. He has also received report of Pw.20 as per Ex.P29 and his signature is Ex.P29(b).
60. Pw.22 further deposed that on 12-02-2017 he has recorded voluntary statement of the accused No.1. Here it is relevant to note that through voluntary statement of the accused No.1 this witness seized the thread-MO1 and also mobile phones as per MO9 and MO10 and the process of seizure mahazar proved by the prosecution through the evidence of Pw.3, Pw.4 and Pw.18. No doubt it is true the accused persons cross-examined the said witness by eliciting some commission and omission, but nothing has been elicited favourable to the defense taken by the accused No.1 and 2. He has also recorded voluntary statement of the accused No.1 and 2 as per Ex.P34 and Ex.P35. He has conducted mahazar as per Ex.P11 and his signature is Ex.P11(b). He has also identified MO1 and MO10. He has also received further complaint of the complainant as per Ex.P6 on 12-02-2017 and his signature is Ex.P6(b).
63 Spl.C.C.No.199/2017
61. He has further deposed that on 12-02-2017 the W.P.C.1312 brought the accused No.2 to the station and produced before him. In order to substantiate the said stand, the prosecution examined Pw.19-Mamatha.M. She has deposed that she has taken the custody of accused No.2 on 12-02-2017 from her house and produced before the Investigation Officer and also identified the accused No.2. Her evidence remains unassailed.
62. Pw.17-Mohan-P.C.No.13366 deposed that on 10-02- 2017 he has taken the accused No.1 to Victoria Hospital for medical examination and after examination again he has produced the accused No.1 before the Investigation Officer and also identified the accused No.1 before the Court. His evidence also remains unassailed.
63. Further Pw.22 deposed that in order to run Savan Play Home the accused No.2 has not obtained permission from concern authority and security purpose she has not fixed CCTV cameras in that school. He has taken report from Cw.24, recorded the voluntary statement of accused No.2 and then 64 Spl.C.C.No.199/2017 produced her before the Court along with remand warrant. He has also deposed that on 13-02-2017 he has produced the accused No.1 before the Court and also he has given requisition for recording the statement of the victim girl under section 164 of Cr.P.C., by the Magistrate.
64. On perusal of Ex.P36-the statement of the victim girl, it was recorded by the learned 21st Additional Chief Metropolitan Magistrate on 15-02-2017. There also the victim girl stated in the school one uncle tied her hands, made her to lie down. He put his finger to her private part. It pained a lot. He removed her pants. He removed his pants and put his worm to her private part. He bet her with both the hands. No one should do like that as it pains a lot. It pains while passing urine. The said uncle's name is Sheesha. I do not want to go to school. The victim girl also deposed the same before this Court. Hence, the question of disbelieving the alleged offences against by the accused No.1 does not arise at this stage arises.
65. Pw.22 further deposed that he has collected MO12 to MO15 and also collected birth certificate as per Ex.P5 and his 65 Spl.C.C.No.199/2017 signature is Ex.P5(a). He has also collected the medical certificate of accused No.1 as per Ex.P21 and his signature is Ex.P21(a). Further on 16-02-2017 he has requested permission for Test Identification Parade of the accused No.1 and obtained order on 17-02-2017 and requested the Thasildar to conduct Test Identification Parade as per Ex.P25 and his signature is Ex.P25(a). The Thasildar also conducted Test Identification Parade and submitted his report. For that also Pw.15 deposed about conducting of Test Identification Parade of the accused No.1 and the victim girl identified the accused No.1. Pw.22 also deposed that he has seized articles as per MO2 to MO8 and also sent the same for chemical examination to Mysore-R.F.S.L. He has also obtained data of both MO9 and MO10 from Assistant Director who is Pw.21 and also obtained acknowledgement from RFSL as per Ex.P37 and Ex.P36. He has also recorded the statement of father of the accused and obtained rental agreement as per Ex.P17. He has also received the birth certificate of the victim girl from B.B.M.P., on 24-04-2017 as per Ex.P39. He has also obtained documents from Health Department-B.B.M.P. on 28-04-2017 as per Ex.P14 and then he 66 Spl.C.C.No.199/2017 has received information as per Ex.P18. He has also received C.D.R. as per Ex.P40 and his signature is Ex.P40(a). He has completed investigation on 15-02-2017 and kept aside of receiving of FSL report he has filed the charge sheet. After that he has received Ex.P42 to Ex.P44 and also marked his signature. He has also received the pen drive in respect of Ex.P30. He has identified the accused No.1 and 2
66. No doubt it is true that the learned advocate for accused persons cross-examined this witness by eliciting some commission and omission and also elicited about Ex.P44-F.S.L. report and Ex.P1 and suggested no such rape caused on the victim girl. When the victim girl clearly deposed before the Court, question of considering this piece of evidence at this stage does not arise. Further he has also admitted about the Provisional opinion given by the doctor as per Ex.P16. When the victim girl aged about 3½ years deposed before the Court about sexual abuse caused on her, question of considering this piece of admission at this stage does not arises. Further he was tested in respect of Ex.P41 stating that:
67 Spl.C.C.No.199/2017
"¤.¦.41 gÀ zÁR¯ÉAiÀÄ ¥ÀæPÁgÀ ¢B 09.02.2017 gÀAzÀÄ ¨É¼U À ÉÎ 10.15.25 ¸ÉPA É r£À°è ªÉƨÉÊ¯ï ¸ÀASÉå 9742979899 PÉÌ 9538957384 ªÉƨÉʯï¤AzÀ §AzÀAvÀºÀ ªÀiÁ»wAiÀiÁVzÀÄÝ 9742979899 gÀ lªÀgï ¯ÉÆPÉñÀ£ï ¢ªÁ£ÀgÀ ¥Á¼Àå ¨ÉAUÀ¼ÀÆgÀÄ JA§ÄzÁVzÀÄÝ CzÉÃjÃw 10.21.28 ¸ÉAPÉArUÉ DgïJA« ¸ÉPA É qï ¸ÉÖÃeï EzÀÄÝ 10.30.41 ¸ÉPA É rUÉ DgïJA« ¸ÉPA É qï ¸ÉÖÃeï JA§ÄzÁVzÀÄÝ 12.41.57 ¸ÉPA É rUÉ J£ï/J JA§ÄzÁVzÀÄÝ 12.47.13 ¸ÉPA É r£À°è EAqÀ¸ïlªÀgï AiÀÄ®ºÀAPÁ ¨ÉAUÀ¼ÀÆgÀÄ JA§ÄzÁV vÉÆÃj¹zÉ JAzÀgÉ ¸Àj. ¸ÀzjÀ CA±Àª£À ÀÄß ¤.r.9 JAzÀÄ UÀÄgÀÄvÀÄ¥Àr¸À¯Á¬ÄvÀÄ."
Further he was elicited that:
"¤.r.9 gÀ ¥ÀæPÁgÀ DgÉÆæ1 ¢B 09.02.2017 gÀAzÀÄ ¨É¼ÀUÎÉ 10.15 ¤«ÄµÀ¢AzÀ 12.47 ¤«ÄµÀzª À gÀ É«UÀÄ ¸ÁªÀ£ï¥Éº è ÉÆÃA¤AzÀ ¸ÀĪÀiÁgÀÄ 30 jAzÀ 35 Q«Äà zÀÆgÀz° À z è £ ÀÝ A É zÀgÉ ¸ÁQë CzÀgÀ ¥ÀæPÁgÀ D §UÉÎ PÀAqÀħgÀÄvÀz Û A É zÀÄ £ÀÄr¢gÀÄvÁÛg.É "
The above said admitted evidence and Ex.P41 show the fact of mobile location. But at the same time the accused No.1 not placed any supporting documents to show from 09.30 a.m., to 10.35 a.m., where he was and for what purpose his mobile location was there not explained. Whether he was on duty at that time or he went to College on that day at that time not stated, when such being the case question of believing the accused No.1 was absent from 09.30 a.m., to 12.30 p.m. on that day doesn't arise. Further, the accused No.1 tested the veracity of evidence of this witness by eliciting some commission and omission, except denial suggestion, nothing has been elicited favourable to the defense taken by the accused No.1 and 68 Spl.C.C.No.199/2017
2. Viewing from available material evidence produced by the prosecution through this witness, this Court feels to observe that the prosecution establishes the alleged offences against accused No.1 beyond all reasonable doubt.
67. The oral and documentary evidence placed on record by the prosecution is sufficient to prove the alleged offence against accused No.1 beyond all reasonable doubt since the victim girl who is aged 3½ years to 4 years at the time of giving evidence before the Court, she has clearly deposed what had happened on her by showing hand signals and also deposed in Hindi mixed with English language through her childish language. As such it clearly establishes the alleged offences against accused No.1. Further what ever the victim girl stated before the 21st A.C.M.M Magistrate, remains unchallenged. Even before that Magistrate also the victim girl stated as that of evidence given before this Court. The victim girl also stated her statement before Pw.14-the Woman P.S.I. Kathayani and Pw.20- S.J.P.U Social Worker-Kavitha as it is as what she has stated before the Court.
69 Spl.C.C.No.199/2017
68. No doubt it is true that the learned advocate for the accused No.1 taken defense in respect of Ex.P7. At the same time the evidence given by the victim girl before this Court and also 164 Cr.P.C., statement corroborates the contents of Ex.P7. When such being the case, question of disbelieving the alleged offence against accused No.1 does not arise. Further the learned advocate for accused persons also tested the veracity of evidence of Pw.1, Pw.5 to Pw.8 who are the parents, grand parents and maternal uncle of the victim girl. No doubt it is true that there is some discrepancies and some inconsistent evidence stated by them. But at the same time whatever the victim girl told to them remains unshaken. When such being the case, question of disbelieving their evidence though they are hear say witnesses does not arise.
69. Further the accused No.1 taken defense by cross- examining the Investigation Officer-Pw.22 with regard to the location of the accused No.1 away from the place of Savan Play Home. But at the same time the accused No.1 has not produced any corroborative, cogent oral and documentary evidence to show at relevant point of time he was not present in Savan Play 70 Spl.C.C.No.199/2017 Home, he was some where else by doing his work or attending his office or attending the college. When ample opportunity available to the accused No.1 to establish the said fact and circumstances, except testing the veracity of the prosecution witness evidence, nothing has been placed corroborative and cogent oral and documentary evidence to that effect which is absolutely fatal to the defense of the accused No.1.
70. On perusal of Section 30-Presumption of culpable mental state.-(1) In any prosecution for any offence under this Act which requires a 'culpable mental state' on the part of the accused, the Special Court shall presume the existence of such mental state, but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purpose of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. Here also as stated supra, the accused No.1 failed to prove his defence even though ample opportunity available to him. On the other hand the prosecution establishes the facts 71 Spl.C.C.No.199/2017 and circumstances of commission of offence by the accused No.1 by producing the evidence of Pw.21-Scientific Officer coupled with Ex.P37 and Ex.P36 and MO11 in respect of culple mental state of accused No.1
71. It is settled proposition of law that, in a case of circumstantial evidence, accused being the Master of crime, alone knows circumstances which lead to the commission of offence. Section 106 of Evidence Act mandates that facts which are within the exclusive knowledge of the accused shall be explained by him alone. Non-explanation of incriminating circumstances lead to an inference that accused and accused alone is the author of crime. In the instant case, this Court after recording the evidence of prosecution witnesses, examined the accused No.1 and 2 under Section 313 of Cr.P.C., and put to accused No.1 and 2 as many as 68 questions. The accused No.1 except denial answer of incriminating circumstance, saying false and he doesn't know, no other answer given by him at relevant point of time he was not at Savan Play Home and he was else where. He has stated that Apple I Phone belongs to him 72 Spl.C.C.No.199/2017 and Samsung phone not belongs to him. But as per the evidence of Pw.21 the date of Apple I Phone is alone very clear that he was having a habit of seeing absence photos and videos. The case of the prosecution is that by seeing absence photos and videos he has enraged and committed the offence on the victim girl. His presence or absence at Savan Play Home at relevant point of time, he has not explained and he became silent.
72. Right to silence is no more a good Law. Law enjoins duty on the accused to explain each of the circumstances put to him. At this juncture it is worthwhile to emphasis on the decision reported in (2012)3 SCC (Cri) Page 271, wherein it has been observed that:
"Criminal Procedure Code, 1973-S.313-Statement of accused under-Duty of accused while making such statement- Failure to discharge such duty-Effect of-Held, it is duty of accused while making statement under S.313, to explain incriminating circumstances proved against him-Keeping silent and not furnishing any explanation for such circumstance is an additional link in the chain or circumstances to sustain charges against him-Criminal Trial-Circumstantial Evidence-Failure to explain incriminating circumstances."
Failure on the part of the accused No.1 to explain or to offer false explanation is one of the additional links in the chain 73 Spl.C.C.No.199/2017 or circumstances to sustain charge against him. Though the facts and circumstances of above case decision and facts and circumstances of the case on hand are different one, but the ratio of principle is clearly applicable to the present case on hand.
73. In view of the above said oral and documentary, I hold that the evidence of Pw.1 to Pw.22 and documentary evidence placed on record in respect of alleged offences is sufficient to prove that the accused No.1 has committed aggravated penetrative sexual assault on 09-02-2017 in between 09.30 a.m., to 12.30 p.m., in Savan Play Home, run by his mother-the accused No.2 for small children in their house at No.1510, 7th Main Road, 4th Cross, R.P.C. Layout, Vijaya Nagar, Bengaluru, situated within the limits of Vijaya Nagar Police Station, on Cw.2-the victim girl, who was admitted to the said play home and was aged about 3½ years, by taking her to his bed room and tying her two hands with rope and thereafter removed clothes of Cw.2, inserted his finger into her private part and by seeing some 74 Spl.C.C.No.199/2017 obscene photos n his mobile and also in the mobile of his father with sexual desire, removed his pant and illegally had sexual intercourse and committed rape on Cw.2-the victim girl and thereby committed offence punishable under Section 5(m) of POCSO Act, 2012 punishable under section 6 of POCSO Act, 2012 read with section 376 of IPC beyond all reasonable doubt. Consequently, I hold Point No.1 in the "Affirmative".
74. The above said both oral and documentary evidence placed on record by the prosecution is not sufficient to prove that during the year 2015-2016 the accused No.2 was funning Savan Play Home for small children in her house at No.1510, 7th Main Road, 4th Cross, R.P.C. Layout, Vijaya Nagar, Bengaluru, situated within the limits of Vijaya Nagar Police Station, without any permission or license and she has not provided any security or CCTV for children and inspite of intimating about misbehaviour of the accused No.1 within the area of play home, displaying the obscene photos to the children and touching the parts of the body of the children, with a sexual intent, etc., 75 Spl.C.C.No.199/2017 through Cw.11 and Cw.12, she has not taken any precautionary measures and shown negligence and thereby the accused No.2 abated to commit the offence of rape/aggravated penetrative sexual assault on Cw.2-the victim girl and thereby the accused No.2 committed offence punishable under Section 17 of POCSO Act, 2012 beyond all reasonable doubt. Consequently, I hold Point No.2 in the "Negative".
75. Point No.3:- For the above said reasons and discussions on Point No.1 and 2, I hold that the accused No.1 is entitled for an order of conviction and the accused No.2 is entitled for an order of acquittal. Hence, in the final result, I proceed to pass the following:
ORDER Acting under Section 235(2) of Cr.P.C., the accused No.1-Sanjay.S. @ Sanju @ Sheesha is found guilty and convicted for the offence under Section 5(m) of POCSO Act, 2012 and punishable under section 6 of POCSO Act, 2012 and under section 376 of I.P.C.76 Spl.C.C.No.199/2017
Acting under Section 235(1) of Cr.P.C, the accused No.2-Shobha is hereby acquitted for the offence punishable under Section 17 of POCSO Act, 2012. The bail bond and surety bond of the accused No.2 stands cancelled.
To hear regarding sentence.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open court on this the 16th Day of March 2018) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE ORDER ON SENTENCE Heard the arguments from the learned counsel for accused No.1 and the learned Special Public Prosecutor regarding sentence.
2. The accused No.1 submits that he is only son of his parents and young aged one. He has not committed any offences and requested to take lenient view in respect of imposing sentence on him. On the other hand the learned Special Public Prosecutor submitted that looking to the facts of the case, lenient view should not be taken regarding sentence.77 Spl.C.C.No.199/2017
3. It is not in dispute that the accused No.1 committed rape on the victim girl in Savan Play Home at his room. This fact is deposed by Pw.1, Pw.2 and Pw.5 to Pw.8. When such being the case, I feel the ends of justice will be met by imposing the minimum sentence to accused No.1 for the offences punishable section 5(m) and section 6 of POCSO Act. 2012 and under Section 376 of I.P.C. Further though the charges framed as read with, but both offences are distinct in nature.
4. The punishment for the offence under Section 376 of I.P.C., fixed rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life and shall also be liable to fine. Further in respect of offence under Section 5(m) read with Section 6 of POCSPO Act, 2012, the punishment prescribed-whoever commits aggravated sexual assault, the punishment is rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life and shall also liable to fine.
Here the accused No.1 since from his arrest till this day is in judicial custody. Thus in my opinion, if the Court has to impose sentence of rigorous imprisonment of ten years with fine of Rs.25,000/- and in default of payment of fine, to under go Simple imprisonment for a period of four months in respect of offence under Section 376 of I.P.C., fixed to accused No.1 and rigorous imprisonment of ten years with fine of Rs.25,000/- and in default of payment of fine, to under go Simple imprisonment 78 Spl.C.C.No.199/2017 for a period of four months in respect of offence under Section 5(m) read with Section 6 of POCSO Act is fixed to the accused No.1, no impediments will be caused to him. Hence, I proceed to pass the sentence as under:
ORDER The accused No.1 is sentenced to under go rigorous Imprisonment for a period of ten years and to pay a fine of Rs.25,000/- for the offence under Section 376 of I.P.C., and in default of payment of fine, he shall further under go Simple Imprisonment for a period of four months.
The accused No.1 is sentenced to under go rigorous Imprisonment for a period of ten years and to pay a fine of Rs.25,000/- for the offence under Section 5(m) read with Section 6 of POCSO Act, and in default of payment of fine, he shall further under go Simple Imprisonment for a period of four months.
The above two sentences of accused No.1 shall run concurrently.
Pw.2-the victim girl is entitled to compensation of Rs.1,00,000/-under the"'Karnataka Victim Compensation Scheme, 2011". The Government of Karnataka shall pay compensation of Rs.1,00,000/-79 Spl.C.C.No.199/2017
to Pw.2-the victim girl from 'Victim Compensation Fund', as provided under Section 357(A) of Code of Criminal Procedure (Amended Act) of 1973).
In case, the accused No.1 deposits fine amount of Rs.50,000/- as ordered by this Court, the same shall be adjusted towards the compensation.
The accused No.1 is entitled for benefit of set off for the period for which he has already undergone imprisonment as under trial prisoner during the course of trial as provided under Section 428 of Cr.P.C.
MO-1 to MO-8, MO12 to MO15 are treated as worthless properties, office is directed to destroy MO-1 to MO-8, MO12 to MO15 in accordance with law after appeal period is over. If an appeal is preferred, after disposal of appeal in accordance with law.
MO9-Apple I Phone, MO10-Samsung Mobile are treated as worth properties, office is directed to forfeit MO9 and MO10 to the Government in accordance with law after appeal period is over and, if an appeal is preferred, after the disposal of the appeal, in accordance with law.80 Spl.C.C.No.199/2017
MO11 is part and parcel of the exhibited prosecution side document, as such no order is passed in respect of MO11.
Issue conviction warrant against accused No.1 in accordance with law.
Furnish free copy of judgment and order of sentence to the accused No.1 forth with.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open court on this the 20th Day of March 2018) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
Pw.1 Anitha Kumari Cw.1 03-10-2017
Pw.2 Victim Cw.2 07-10-2017
Pw.3 Pavan @ Pavan Cw.3 04-11-2017
Kumar
Pw.4 Chandrasekhar Cw.4 04-11-2017
Pw.5 Baldev Singh Koundal Cw.9 21-12-2017
Pw.6 Savithri C.10 21-12-2017
Pw.7 Dheeraj Kumar Cw.8 28-12-2017
81 Spl.C.C.No.199/2017
Pw.8 Gaurav R. Joshi Cw.7 04-01-2018
Pw.9 Vani Cw.11 04-01-2018
Pw.10 Renuka Cw.12 04-01-2018
Pw.11 Dr.K.R.Komala Cw.16 09-01-2018
Pw.12 Dr.Shashikala B. Patil Cw.19 09-01-2018
Pw.13 Sohan Lal Vyas Cw.13 09-01-2018
Pw.14 Kathyani Alva Cw.32 18-01-2018
Pw.15 Hanumantharayappa Cw.21 22-01-2018
V.
Pw.16 R.Shivakumr Cw.25 22-01-2018
Pw.17 Mohan Cw.29 22-01-2018
Pw.18 Vinod Kumar Cw.5 30-01-2018
Pw.19 Mamatha.M. Cw.24 30-01-2018
Pw.20 Kavitha Pw.20 03-02-2018
Pw.21 Dr.Kumudha Rani Pw.21 12-02-2018
Pw.22 H.Krishna Murthy Pw.22 19-02-2018
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION
Ex.P 1 Complaint Pw.1 03-10-2017
Ex.P 1a Signature of Pw.1 Pw.1 03-10-2017
Ex.P 1b Signature of Pw.22 Pw.22 19-02-2018
Ex.P 2 Mahazar Pw.1 03-10-2017
Ex.P 2a Signature of Pw.1 Pw.1 03-10-2017
Ex.P 2b Signature of Pw.3 Pw.3 04-11-2017
Ex.P 2c Signature of Pw.4 Pw.4 04-11-2017
Ex.P 3 Admission application Pw.1 03-10-2017
Ex.P 3a Signature of Pw.22 Pw.22 19-02-2018
82 Spl.C.C.No.199/2017
Ex.P 4 Group photo of Savan Pw.1 03-10-2017
Play Home
Ex.P 4a Signature of Pw.22 Pw.22 19-02-2018
Ex.P 5 Date of birth Pw.1 03-10-2017
certificate of victim
Ex.P 5a Signature of Pw.22 Pw.22 19-02-2018
Ex.P 6 Further complaint Pw.1 03-10-2017
Ex.P 6a Signature of Pw.1 Pw.1 03-10-2017
Ex.P 6b Signature of Pw.22 Pw.22 19-02-2018
Ex.P 7 Statement of victim Pw.1 03-10-2017
before SJPU
Ex.P 7a Signature of Pw.1 Pw.1 03-10-2017
Ex.P 7b Signature of Pw.8 Pw.8 04-01-2018
Ex.P 7c Signature of Pw.14 Pw.14 18-01-2018
Ex.P 7d Signature of Pw.20 Pw.20 03-02-2018
Ex.P 7b Signature of Pw.22 Pw.22 19-02-2018
Ex.P 8 Admission register of Pw.1 07-10-2017
Savan Play Home
Ex.P 8a Signature of Pw.1 Pw.1 07-10-2017
Ex.P 9 Receipt book of Savan Pw.1 07-10-2017
Play Home
Ex.P 9a to Receipts Pw.1 07-10-2017
9c
Ex.P 10 Postpaid customer Pw.2 07-10-2017
relationship form
Ex.P 10a Photo of accused Pw.2 07-10-2017
Ex.P 11 Seizure mahazar Pw.3 19-02-2018
Ex.P 11a Signature of Pw.4 Pw.4 04-11-2017
Ex.P 11b Signature of Pw.3 Pw.3 19-02-2018
Ex.P 11b Signature of Pw.22 Pw.22 19-02-2018
83 Spl.C.C.No.199/2017
Ex.P 12 Statement of Pw.9 Pw.9 04-01-2018
Ex.P 13 Statement of Pw.10 Pw.10 04-01-2018
Ex.P 14 Letter Pw.11 09-01-2018
Ex.P 14a Signature of Pw.11 Pw.11 09-01-2018
Ex.P 14b Signature of Pw.22 Pw.22 19-02-2018
Ex.P 15 Provision report Pw.12 09-01-2018
Ex.P 15a Signature of Pw.12 Pw.12 09-01-2018
Ex.P 15b Signature of Pw.22 Pw.22 19-02-2018
Ex.P 16 Final opinion Pw.12 09-01-2018
Ex.P 16a Signature of Pw.12 Pw.12 09-01-2018
Ex.P 17 Copy of rental Pw.13 09-01-2018
agreement
Ex.P 17a Signature of Pw.22 Pw.22 19-02-2018
Ex.P 18 Reply from BDO- By 09-01-2018
Bangalore South consent
Ex.P 19 Letter By 09-01-2018
consent
Ex.P 20 Requisition By 09-01-2018
consent
Ex.P 21 Medical examination By 09-01-2018
report of accused consent
Ex.P 21a Signature of Pw.22 Pw.22 19-02-2018
Ex.P 22 Requisition to Court Pw.15 22-01-2018
Ex.P 22a Signature of Pw.15 Pw.15 22-01-2018
Ex.P 23 Test Identification Pw.15 22-01-2018
Report
Ex.P 23a Signature of Pw.15 Pw.15 22-01-2018
Ex.P 24 Test Identification Pw.15 22-01-2018
Report
Ex.P 24a Signature of Pw.15 Pw.15 22-01-2018
Ex.P 25 Requisition Pw.15 22-01-2018
84 Spl.C.C.No.199/2017
Ex.P 25a Signature of Pw.15 Pw.15 22-01-2018
Ex.P 25b Signature of Pw.22 Pw.22 19-02-2018
Ex.P 26 Report of Pw.16 Pw.16 22-01-2018
Ex.P 26a Signature of Pw.16 Pw.16 22-01-2018
Ex.P 26b Original of Ex.P.26 Pw.16 22-01-2018
Ex.P 27 Original requisition Pw.16 22-01-2018
Ex.P 28 Seizure Mahazar Pw.18 30-01-2018
Ex.P 28a Signature of Pw.18 Pw.18 30-01-2018
Ex.P 28b Signature of Pw.22 Pw.22 19-02-2018
Ex.P 29 Report of Pw.20 Pw.20 03-02-2018
Ex.P 29a Signature of Pw.20 Pw.20 03-02-2018
Ex.P 30 FSL Report Pw.21 12-02-2018
Ex.P 30a Signature of Pw.21 Pw.21 12-02-2018
Ex.P 31 FSL Seal Pw.21 12-02-2018
Ex.P 31a Signature of Pw.21 Pw.21 12-02-2018
Ex.P 32 FIR Pw.22 19-02-2018
Ex.P 32a Signature of Pw.22 Pw.22 19-02-2018
Ex.P 33 Report of Cw.26 Pw.22 19-02-2018
Ex.P 33a Signature of Pw.22 Pw.22 19-02-2018
Ex.P 33b Signature of Cw.26 Pw.22 19-02-2018
Ex.P 34 Voluntary statement Pw.22 19-02-2018
of accused No.1
Ex.P 34a Signature of Pw.22 Pw.22 19-02-2018
Ex.P 34b Signature of accused Pw.22 19-02-2018
No.1
Ex.P 35 Further voluntary Pw.22 19-02-2018
statement of accused
No.1
Ex.P 35a Signature of Pw.22 Pw.22 19-02-2018
85 Spl.C.C.No.199/2017
Ex.P 35b Signature of accused Pw.22 19-02-2018
No.1
Ex.P 37 FSL Pw.22 19-02-2018
Acknowledgement
Ex.P 37a Signature of Pw.22 Pw.22 19-02-2018
Ex.P 38 FSL Pw.22 19-02-2018
Acknowledgement
Ex.P 38a Signature of Pw.22 Pw.22 19-02-2018
Ex.P 39 Date of birth Pw.22 19-02-2018
certificate of victim
Ex.P 40 Certificate from Airtel Pw.22 19-02-2018
U/s.65-B of IEA
Ex.P 40a Signature of Pw.22 Pw.22 19-02-2018
Ex.P 41 CDR of Mobile Pw.22 19-02-2018
No.9742979899
Ex.P 42 RFSL report Pw.22 19-02-2018
Ex.P 42a Signature of Pw.22 Pw.22 19-02-2018
Ex.P 43 RFSL seal Pw.22 19-02-2018
Ex.P 44 Final opinion on FSL Pw.22 19-02-2018
examination
LIST OF MATERIAL OBJECTS MARKED ON
BEHALF OF PROSECUTION
MO 1 Rope Pw.3 04-11-2017
MO 2 Vaginal swab Pw.12 09-01-2018
MO 3 Rectal swab Pw.12 09-01-2018
MO 4 Cream colour under Pw.12 09-01-2018
garment
MO 5 White colour under Pw.12 09-01-2018
garment
86 Spl.C.C.No.199/2017
MO 6 Green colour T-shirt Pw.12 09-01-2018
MO 7 Blue Jeans skirt Pw.12 09-01-2018
MO 8 Block legging Pw.12 09-01-2018
MO 9 Mobile Pw.21 12-02-2018
MO 9a Grey colour cover
with signature
MO 10 Samsung mobile Pw.3 19-02-2018
MO 11 Pen drive Pw.21 12-02-2018
MO 12 Under wear Pw.22 19-02-2018
MO 13 Pubic swab Pw.22 19-02-2018
MO 14 Cornel Swab Pw.22 19-02-2018
MO 15 Blood sample Pw.22 19-02-2018
LIST OF DOCUMENTS MARKED ON BEHALF OF
DEFENCE
Ex.D1 Attendance Register Pw.1 11-10-2017
Ex.D2 Progress Report of Pw.1 11-10-2017
victim
Ex.D3 Marked portion in Pw.1 16-10-2017
Ex.P8
Ex.D4 Airtel Registration Pw.2 21-10-2017
Form
Ex.D4a Photo Pw.2 21-10-2017
Ex.D5 Marked portion in Pw.5 21-12-2017
statement of Pw.5
Ex.D6 Marked portion in Pw.5 21-12-2017
statement of Pw.5
Ex.D7 Marked portion in Pw.5 21-12-2017
statement of Pw.6
87 Spl.C.C.No.199/2017
Ex.D8 Marked portion in Pw.5 21-12-2017
statement of Pw.6
Ex.D9 Mobile tower location Pw.22 19-02-2018
LIST OF WITNESSES EXAMINED & MATERIAL OBJECTS MAKED ON BEHALF OF DEFENCE NIL L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE