Bangalore District Court
Unknown vs Kiran Kumar @ Kiran on 25 August, 2016
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 25th DAY OF AUGUST 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 187/2015
COMPLAINANT :
The State of Karnataka by
Banaswadi Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
Kiran Kumar @ Kiran ,
S/o. Kannan,
Aged about 20 years,
R/at No.5, Kullappa House,
Near Muneshwara Temple,
R.S. Palya,
Bangalore City.
[Reptd by Sri S.V. and associates
-advocates]
2 Spl.C.C.187/15
JUDGMENT
Banaswadi Police, Bangalore City have charge sheeted the accused for offences punishable under Sections 509, 506 of I.P.C and Sec. 11(iv) of Protection of Children from Sexual Offence Act, 2012.
2. The case of the prosecution, in brief, is as under :
CW-2 the prosecutrix aged about 16 years in the year 2014 was studying in I P.U.C. She was residing in the house of CW-3 Smt. Gayathri Das, her maternal aunt. The accused follows her makes obscene gesture calling her towards him. On 12.12.2014 at P.N.S. Layout again accused had come nearby by her house and also given threat to her by making obscene gesture that he would publish her photos in the Face book of which would tarnish her reputation. Hence, because of fear she had taken the pills to commit suicide. She was admitted to Specialist Hospital immediately and survived. CW-1 Manjunath father of the prosecutrix had lodged a complaint on 13.12.2014. I.O registered the case, drew necessary mahazars,
3 Spl.C.C.187/15 her statement and also statement of other prosecution witnesses were recorded. By completing the investigation Investigating Officer submitted charge sheet to the court for the aforesaid offences.
3. The charge sheet was submitted to this Court and the same was registered in Spl.C.C. by taking cognizance. Then Presiding Officer on hearing on both sides has framed the charge for offences punishable under Sections 509, 506 of I.P.C and under Section 11(iv) of Protection of Children from Sexual Offence Act, 2012 and read over to the accused. Accused pleaded not guilty and claimed to be tried. Hence, posted for evidence on prosecution side.
4. On prosecution side got examined as many as 3 witnesses as P.W.1 to P.W.3 out of 12 charge sheet witnesses and got marked the documents at Ex.P.1 to Ex.P.5. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole 4 Spl.C.C.187/15 incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments on both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under :
1. Whether the prosecution has proved beyond reasonable doubt that accused had made gesture on 12.12.2014 at 5.00 p.m., in front of her house No.21, P.N.S. Layout, Subbaiahnapalya, with intent to insult the modesty of CW-2, punishable under Section 509 of I.P.C?
2. Whether the prosecution has proved beyond reasonable doubt that accused on the aforesaid date, time and place had given threat to publish her photos in the Face book to tarnish her image, punishable under Section 506 of I.P.C?
5 Spl.C.C.187/15
3. Whether the prosecution has proved beyond reasonable doubt that accused had committed sexual harassment on CW-2 by following her repeatedly, by making gesture, punishable under Section 11(iv) of Protection of Children from Sexual Offence Act, 2012?
4. What order?
7. My findings on the above points are as under:-
Points No.1 : In the negative to 3 Points No.4 : As per final orders for the following REASONS
8. Points No.1 and 3:- These Points are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
9. The accused is alleged to have had committed sexual harassment on PW-1 the minor daughter of PW-2 B.S. Manjunath, prior to 12.12.2014 by following her repeatedly with intention of causing sexual harassment and on 12.12.2014 6 Spl.C.C.187/15 in front of her house made obscene gesture asking her to come towards him. As per prosecution PW-1 the prosecutrix was minor as on the date of alleged incident. She was studying in I P.U.C. during the year 2014. In view of Section 2(1)(d) of POSCO Act "child" means any person below the age of 18 years. Hence, at the first instance, the age of the prosecutrix shall have to be determined. According to prosecution Pw-1 was of 17 years as on the date of alleged incident. In order to prove her age no piece of document is placed on prosecution side. PW-2 B.S. Manjunath is the complainant. PW-1 is the prosecutrix.
10. In view of Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007 it should be determined by matriculation or equivalent certificates or date of birth certificates from school first attended or birth certificate by Corporation/Municipal authority or Panchyat and only in the absence of such documents medical opinion can be sought for. On this point I have relied upon (2013) 14 SCC 637 7 Spl.C.C.187/15 (Mahadeo S/o Kerba Maske Vs. State of Maharashtra and another), it has held that:
"Penal Code, 1860 - Ss. 376 and 363 - Kidnapping and rape - Age of prosecutrix/victim - Determinatin of - Yardstick for - Certificates of age from schools or Local Authorities Vis-à-vis medical evidence - Held, statutory provision in Juvenile Justice (Care and Protection of Children) Rules, 2007, R.12(3) is also applicable to determine age of young prosecutrix/victim - Hence, it should be determined by matriculation or equivalent certificates or date of birth certificates from school first attended or birth certificate by Corporation/Municipal authority or Panchayat and only in absence of such documents medical opinion can be sought for - Therefore, reliance placed upon school certificates to arrive at age of prosecutrix to be below 18 years was perfectly justified - Juvenile Justice (Care and Protection of Children) Rules, 2007 - R.12(3) - Procedure for determination of age of juveniles - Application of, for determination of age of victim/prosecutrix - Criminal Trial - Medical Jurisprudence/Evidence - Age - Juvenile/Child victim - Proof of age - Valid evidence".
In the present case, no piece of document is available to prove her age under 18 years. The prosecution has failed to establish that PW-1 was the child as on the date of alleged occurrence.
8 Spl.C.C.187/15
11. Presumption laid down under Section 29 of Protection of Children from Sexual Offence Act, 2012 is not available to the prosecution for the reason accused has been prosecuted for offence under Section 11 of Protection of Children from Sexual Offences Act for which Section 29 of the Act has no application.
12. Now, the question arises whether the prosecution has proved beyond reasonable doubt that accused had committed sexual harassment on PW-1 and he had insulted her with intent to outrage her modesty. PW-1 prosecutrix was residing in the house of PW-3 Gayathri Das at Subbaiahnapalya. Her father was residing in Kalasipalya, Bangalore. Pw-3 Gathri Das is the paternal aunt of PW-1. According to prosecution accused is the brother of one Manoj, the classmate of PW-1 the prosecutrix. Thus she came in contact with the accused. He repeatedly follows her, makes obscene gesture calling her towards him. He was doing the same while she was going on the street and subsequently nearby her college. He use to send the messages to PW-1 through her friends. On coming to know this fact PW- 3 warned the accused not to repeat. However, on 12.12.2014 9 Spl.C.C.187/15 at 5.00 p.m., he came in front of the house of the prosecutrix, he made gesture of which causes outraging modesty of the woman. He also made gesture that he would publish her photos in the Facebook to lower her reputation. Because of this prosecutrix has taken the pills to commit suicide, she was immediately admitted to Specialist Hospital and survived. On next day, PW-2 B.S. Manjunath - father of the prosecutrix had lodged a complaint before the police making all these allegations. This is the case of the prosecution.
13. In order to prove its case prosecution has got examined 3 material witnesses. PW-1 is the prosecutrix who is the proper person to narrate about the incident. PW-2 B.S. Manjunath is the complainant and he is the father of the prosecutrix. PW-3 Gayathri Das is the paternal aunt of victim. The burden is on the prosecution to prove its case beyond reasonable doubt.
14. There are in all 3 charges against the accused. First Point is relating to the charge for offence punishable under 10 Spl.C.C.187/15 Section 509 of I.P.C. and the second point is relating to charge for offence punishable under Section 11(iv) of Protection of Children from Sexual Offence Act, 2012. Section 509 of I.P.C. provides word, gesture or act intending to insult the modesty of a woman. It reads as under:
"Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both".
Section 11(iv) of POSCO Act provides :-
Sexual harassment - A person is said to commit sexual harassment upon a child when such person with sexual intent, repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means.
The explanation to Section 11 of POSCO Act provides "any question which involves sexual intent shall be a question of fact". The sexual intention shall be gathered from the conduct and also surrounding circumstances. According to
11 Spl.C.C.187/15 prosecution Pw-1 had given the 164 statement as per Ex.P1. On going through the contents of Ex.P1 she has stated "that accused is the elder brother of her classmate Manoj, accused follows her, on coming to know this fact her parents warn them by approaching him his house then he starts approaching her nearby her college and use to send message through her friends. After some days, he sends message through her friend to talk with him. After some days she starts talking with him. It comes to the knowledge of her family members, they scold. Accused tries to talk with her, she tries to avoid him. Because of the pressure from both sides from accused as well as from her family member she takes sleeping pills on 12.12.2014 in order to come out of this situation". On plain reading of this 164 statement, there is absence of obscene gesture. The sum and substance of this 164 statement is he tried to talk with her for which he was following. There is absence of sexual intention and there is absence of obscene gesture. Apart from that the oral testimony of PW-1 does not suggest anything on this aspect. Nowhere she has stated in her evidence that 12 Spl.C.C.187/15 accused was following her repeatedly with sexual intention making obscene gesture. Under the circumstance, it is not safe to base Ex.P1 to connect the accused with alleged offence. The heavy burden is on the prosecution to prove this case beyond reasonable doubt.
15. In order to attract Section 11(iv) of POSCO Act 2012 the intention of committing sexual harassment is must, if with that intention he consequently or repeatedly follows or contacts either directly or through any other means, it attracts offence under Section 11 (iv) of POSCO Act 2012. I have already discussed in supra nothing is brought on record to prove these aspects to believe the case of the prosecution. According to prosecution there is no eyewitness. PW-1 is the material witness on this aspect. But, PW-1 has totally denied the entire case of the prosecution. Even nothing has been extracted from her mouth in the cross-examination led by learned Public Prosecutor. In the absence of support by PW-1 herself it is very difficult to believe the case of the prosecution to connect with the alleged charges.
13 Spl.C.C.187/15
16. PW-2 B.S.Manjunath is another material witness on this point. He is the father of PW-1. He is the complainant. According to prosecution he had warned the accused on coming to know the conduct of the accused from PW-1. But, oral testimony of the PW-2 does not reveal anything to hold the guilt of the accused. He has also not supported the prosecution case.
17. PW-3 Gayathri Das who is the paternal aunt of the victim is another material witness. Her evidence also is not helpful to the prosecution in proving its case. Victim was residing in her house, oncoming to know the obscene gesture being made by the accused she and others warned him not to follow her, not to make gesture. But, her evidence also does not throw any light upon the case of the prosecution. Even oral evidence of PW-1 to 3 does not speak out that PW-1 was taken to Specialist Hospital as she had taken the sleeping pills to come out of the mental pressure. There is no satisfactory and convincing evidence found on record to draw the presumption against the accused for the alleged charges.
14 Spl.C.C.187/15
18. In order to attract Section 509 of I.P.C. it requires the intention to insult the modesty of a woman, secondly the insult must be caused by uttering any words or making gesture or that gesture shall be seen by such woman. This section provides intention to insult the modesty of a woman, the essential ingredient of the offence. It does not require the woman whose modesty is intended to insult, should have either heard the word or seen the action. The evidence on record doesn't disclose the necessary intention of the accused to insult the modesty of the woman and for that he had done something. It doesn't attract Section 509 of I.P.C. As already discussed in supra while discussing Section 11 (iv) of POSCO Act there is absence of intention to cause sexual harassment. There is absence of intention to insult the modesty of a woman. Above all there is no evidence on record to show the conduct of the accused that he was following her repeatedly, making obscene gesture. Under these circumstances, accused cannot be held guilty for charges under Section 509 of I.P.C. or under Section 11(iv) of POSCO Act 2012. The prosecution has 15 Spl.C.C.187/15 miserably failed to place reliable, satisfactory evidence to prove the conduct of the accused, the intention of the accused to commit sexual harassment or insult the modesty of a woman. The oral testimony of PW-1 to 3 does not reveal anything on these aspects. In the absence of materials on record, he cannot be punished for alleged charges. The prosecution has miserably failed to prove the offence under Section 509 of I.P.C and also under Section 11(iv) of POSCO Act 2012. The benefit of doubt should go to the accused. Hence, I hold point Nos. 1 and 3 in the Negative.
19. Point No.2:- The prosecution made allegation against the accused that he had given threat to cause injury to her image in the society. He is alleged to have had made gesture on 12.12.2014 at 5.00 p.m., in front of the house of the PW-1 that he would publish her photos in Face book. Section 503 of I.P.C. is attracted when a person gives threat to another with any injury of his reputation. The essential ingredient of this section is threatening a person with any injury to his reputation and another is to cause that person to do any 16 Spl.C.C.187/15 act which he is not legally bound to do so. The accused allegedly given threat to her to cause injury to her image in the society by publishing her photo in the Face book. But, on this aspect I do not found any piece of evidence that he made such gesture to PW-1. According to prosecution there is no eyewitness to this offence. PW-1 is the proper person to reveal this aspect. Nowhere, it is found in Ex.P1 the 164 statement of PW-1. Ofcourse she has stated before the court that she had not given the 164 statement. Even for a while it is taken that she has given such a statement, there is absence of such gestures made by the accused showing his intention to cause injury to her reputation. Even the oral testimony of PW-1 does not support the prosecution. It does not suggest anything on this aspect. Even, either in the evidence of PW-1 or in the evidence of PW-3 nothing is found on this aspect. Here also prosecution has failed to prove its case beyond reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold point No.2 in the Negative.
17 Spl.C.C.187/15
20. Point No.4: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for offences punishable under Sections 509, 506 of Indian Penal Code and Section 11 (4) of Protection of Children from Sexual Offence Act, 2012.
(Dictated to the Stenographer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 25th day of August, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Prosecutrix PW.2 B.S. Manjunath PW.3 Gayathri Das 18 Spl.C.C.187/15 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 The 164 Statement of the victim Ex.P 1(a) Signature of victim Ex.P 2 Complaint Ex.P 2(a) Signature of PW-2 Ex.P 3 Mahazar Ex.P 3(a) Signature of PW-2 Ex.P 4 Further statement of PW-2 Ex.P 5 Statement of PW-3 LIST OF MATERIAL OBJECTS MARKED
- NIL -
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
*** 19 Spl.C.C.187/15 25.08.2016 Judgment pronounced in the open court, operative portion of which reads as under:-
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for offences punishable under Sections 509, 506 of Indian Penal Code and Section 11 (iv) of Protection of Children from Sexual Offence Act, 2012.
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.