Bangalore District Court
Unknown vs Suresh Kumar on 6 August, 2016
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 6th DAY OF AUGUST 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 220/2013
COMPLAINANT :
The State of Karnataka by
Mahadevapura Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
Suresh Kumar,
S/o. Ramananjanappa,
Aged about 25 years,
R/at Govindappa Residence,
7th Cross, Near Jim,
Nellura Halli,White Filed,
Bangalore City.
[Represented by learned counsel Sri
K.Shiva Reddy and associates]
***
2 Spl C.C.220/13
JUDGMENT
Mahadevapura Police, Bangalore City have charge sheeted the accused for offences punishable under Sections 376, 366(A), 363, 343 of Indian Penal Code r/w Section 4 of Protection of Children from Sexual Offence Act, 2012.
2. The case of the prosecution, in brief, is as under :
CW1 was of 17 years during the year 2013 accused had kidnapped her on 12.7.2013 from nearby S.M.P. Facility Managements Company on Graphite India Company Road, Bangalore by inducing to go to temple where he had forcibly tied Tali and forcibly took her to house of one Ananda known to him, Varthur, Bangalore and he had kept her from 12.7.2013 to 15.7.2013 during which period he had forcibly physical relationship with her. In the meanwhile CW-2 Ramachandrappa -father of the victim girl have filed a complaint before Mahadevapura Police. On 15.7.2013, CW-2 to 5 got the information that victim girl was with accused in the house of Ananda, Varthur, they found them in that house and
3 Spl C.C.220/13 brought them to police station, where I.O had recorded the statement of the victim girl. Investigating Officer drew necessary mahazars and recorded the statement of prosecution witnesses. Accused and the victim girl were sent to hospital for medical examination. After completing investigation, Investigating Officer submitted charge sheet to the Court for the aforesaid offences.
3. The charge sheet was submitted to 50th A.C.C & S.J. On the point of jurisdiction after allocation of the work the case has been transferred to this court. Then Presiding Officer of this court had framed charge sheet for offences punishable under Sections 363, 366(A), 343, 376 of I.P.C and under Section 3 r/w 4 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 4 witnesses as P.W.1 to P.W.6 out of 16 charge sheet witnesses 4 Spl C.C.220/13 and got marked the documents at Ex.P.1 to Ex.P.9. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments 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 kidnapped CW-1, the child on 12.7.2013 at 10.00 a.m., from nearby S.M.P. Facility Management Company on Graphite India Company Road, Bangalore by keeping away from the lawful custody of her parents CW-2 and CW-3, punishable under Section 363 of I.P.C?
5 Spl C.C.220/13 2 Whether the prosecution has proved beyond reasonable doubt that accused on the aforesaid date, time and place had kidnapped CW-1 with intent to marry her against her will, punishable under Section 366(A) of I.P.C?
3 Whether the prosecution has proved beyond reasonable doubt that accused had wrongfully confined CW-1 in the house of Anand in Varthur from 12.7.2013 to 15.7.2013, punishable under Section 343 of I.P.C 4 Whether the prosecution has proved beyond reasonable doubt that accused had committed rape on CW-1 in the house of CW-7 during the period of wrongful confinement, punishable under Section 376 of I.P.C and Section 3 r/w Section 4 of Protection of Children from Sexual Offence Act, 2012 ?
5 What order?
7. My findings on the above points are as under:-
6 Spl C.C.220/13 Points No.1 : In the negative to 4 Points No.5 : As per final orders for the following REASONS
8. Points No.1 ro 4:- 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 kidnapped CW-6 the prosecutrix aged about 17 years as on that date, on 12.7.2013 at about 10.00 a.m., from nearby S.M.P. Facility Managements Company, wherein she was working as housekeeping, Graphite India Company Road, Bangalore by inducing of taking her to temple.
10. According to prosecution PW-6 was the child as on the date of occurrence. Incident took place after coming into Protection of Children from Sexual Offence Act, 2012. Therefore, the age of the prosecutrix has to be determined at the first instance.
7 Spl C.C.220/13
11. The prosecution took the contention that Pw-6 was aged about 17 years as on the date of the alleged incident. Ex.P3 is the complaint wherein made allegation of kidnapping by the accused by mentioning that PW-6 was of 17 years only. PW-2 Ramachandrappa is the father of the prosecutrix. PW-3 is the mother of the prosecutrix. PW-6 Krishnaveni is the prosecutrix.
12. Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007) is applicable to determine the age of prosecutrix/victim. 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 (Mahadeo S/o Kerba Maske Vs. State of Maharashtra and another), it has held that:
8 Spl C.C.220/13 "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".
13. In the present case there is no document showing the age of prosecutrix on prosecution side. Ofcourse, the medical opinion was sought. Therefore, the medical report at Ex.P1 can be based to assess the age of the victim. PW-1 Dr. B.M. Nagaraj who had subjected her to medical examination to certify her age and also to give his opinion as to the use of the girl for sexual intercourse or not. In Ex.P1 he certified that the 9 Spl C.C.220/13 age of PW-6 was from 17 to 18 years. In view of the medical jurisprudence 2 years may be at variance. Accordingly the prosecution has miserably failed to establish its case that PW-6 is the child as on the date of alleged incident. In view of Section 2(1)(d) of POSCO Act "child" means any person below the age of 18 years. But, as per the medical information she was from 17 - 18 years. As discussed in supra there is no convincing evidence that she was below 18 years. Hence, at the first style itself the prosecution has failed to establish that PW-6 was child. Consequently, presumption under Section 29 of the Act is not available to the prosecution
14. Now, the question arises whether the prosecution has proved beyond reasonable doubt the offence of kidnapping by the accused with intent to marry her against her will and committed rape on her by wrongfully confining her in the house of CW-7 Anand in Varthur, Bangalore from 13.7.2013 to 15.7.2013.
10 Spl C.C.220/13
15. According to the case of the prosecution family of PW-6 is belonged to Andhra Pradesh. They came down to Arasikere for their livelihood. One year before the incident they came to Bangalore for their work. PW-6 was working in S.M.P. Facility Managements Company, which is at Graphite India Company Road, Bangalore. She was doing housekeeping work therein. Accused is not the stranger to her. He was also doing work at the same place. On 12.7.2013 he induced her that he would take her to Sri Chamundeshwari Temple at Kundalahalli, where he expressed that he would love her, he forcibly tied Tali. Thereafter he took her to the house of CW-7 Anand, Varthur, Bangalore. Both of them stayed in a room of that house from 12.7.2013 to 15.7.2013. During night on 12.7.2013 he had forcibly physical relationship with PW-6 though she protested. Even after 2 days also he had sex with her against her will, he did not allow her to go outside. She was wrongfully confined therein. In the meanwhile PW-2 Ramachandrappa father of the prosecutrix got the information that the victim girl with the accused was in the house of CW-7. Pw-2 to 5 had 11 Spl C.C.220/13 found both of them and brought them to police station. This is the case of the prosecution. Her statement had been recorded where she stated that accused tied Tali forcibly, wrongfully confined her and committed rape on her. Both of them were sent for medical examination. Her hymen is found not intact. Based on this the charge sheet has been filed against the accused by alleging that he had committed offence of rape and other offences. This is the case of the prosecution.
16. In order to prove its case prosecution has got examined as many as 6 witnesses, out of which PW-2 is the father, PW-3 Rathnamma is the mother. PW-4 Varalakshmamma is the aunt of PW-6. PW-5 Ramesh is the husband of PW-4. They are all the material witnesses in the present case. Ramesh is also another material witness in the present cast.
17. The charge against the accused under 5 heads had been framed by the then Presiding Officer. The charges under 4th and 5th heads are one and the same. Hence, 4th and 5th 12 Spl C.C.220/13 have been taken in one point as they are related to offence of rape only none else.
18. In the case of rape evidence of prosecutrix is very material. Eyewitness may not be available in the cases like this nature. Therefore, the oral testimony of prosecutrix assumes more importance. On going through the whole evidence of Pw- 6 she has not at all supported the case of the prosecution. She has totally denied. In the chief-examination she has stated that she does not know accused, he had never taken out anywhere. In the cross-examination led by the learned Public Prosecutor she denied all the suggestions made by him reiterating the case of the prosecution. The oral testimony of the Pw-6 would not suggest any incriminating statements against the accused.
19. PW-2 Ramachandrappa is the father of the prosecutrix. According to prosecution, he had lodged a complaint as per Ex.P3 on 15.7.2013. According to prosecution accused and the victim girl were traced by PW-2 to 5 in the 13 Spl C.C.220/13 house of CW7 at Varthur on 15.7.2013. It is pertinent to note Ex.P3 the complaint is very much contrary on this aspect. Ex.P3 speaks that accused and victim girl were traced by her family members on 14.7.2013. But, contrary to this subsequently the prosecution took the contention that they were traced on 15.7.2013. According to prosecution Pw-2 had given the further statement as per Ex.P4 by rectifying the date of 14.7.2013 as 15.7.2013. The complaint at Ex.P3 is dated 15.7.2013. It is the primary document of which would throw light upon the case of the prosecution. But, the contents therein is very much contrary to the case of the prosecution itself. Though it is the case of the prosecution that PW-2 had given further statement as per Ex.P4, on going through the oral testimony of PW-2 he has not at all supported either Ex.P3 or P4. He has not spoken to the contents therein. He has completely resiled from Ex.P3 and P.4. As per his version the prosecutrix complained that one guy was eve teasing her, regarding that matter he is lodged a complaint. However, the evidence of PW-2 to 6 is very material as they are the 14 Spl C.C.220/13 witnesses who found victim girl and accused in the house of CW-7 as per prosecution. But, evidence of PW-2 is not helpful to the case of the prosecution as no incriminating evidence is forthcoming in his evidence.
20. PW-3 Rathnamma is the mother of the prosecutrix, even she has also not given corroborative evidence to prove the case of the prosecution. She has also denied all the suggestion made by the learned Public Prosecutor in the cross- examination. She has not accepted the prosecution case.
21. PW-4 Varalakshmamma is another material witness in the present case. Even Pw-5 Ramesh -husband of PW-4 is also an important witness in the present case. But, their oral testimony and also evidence has not come to the aid to the prosecution in proving its case beyond reasonable doubt. Nothing is forthcoming in their oral testimony to prove the charges levelled against the accused. There is absolutely no material brought on record to connect the accused to alleged charges.
15 Spl C.C.220/13
22. Is there any other evidence to connect accused with alleged charges is to be seen. PW-1 is the doctor who had subjected the victim girl to medical examination. Ex.P1 is the medical report issued by him by opining that the victim girl is used to act like that of sexual intercourse within 4 days from the date of examination. As per his evidence he has also subjected the accused to medical examination and issued Ex.P2 that there is nothing to suggest he is incapable of having sexual intercourse and there are also signs for having sexual intercourse within 4 days from the date of medical examination. It is also the case of the prosecution that they had given the voluntary statement before him that they loved each other, they got married, they had the sex by consent. As already mentioned in supra the prosecution has failed to prove that the victim girl was the child as on the date of occurrence. In view of oral testimony of PW-1 accused and victim girl had sex by consent. As per his oral testimony there was no compulsion in having sex by accused with the victim girl. At the first instance there is no supportive evidence or convincing evidence found 16 Spl C.C.220/13 on record to connect the accused with offence of rape. Accused has failed to establish that he enticed away the victim girl and wrongfully confined her in the house of CW-7. Questioning of offence of rape itself does not arise at all. It is not at all support by PW-6 prosecutrix herself. In the absence of support by the prosecutrix and also in the absence of supported by other material witnesses it is not safe to convict the accused for alleged charges. Merely because PW-1 opined in Ex.P1 that hymen of the victim girl was found torn accused cannot be connected to offence of rape. Firstly as per version of the Pw-6 herself he has not committed rape on her. Secondly as per oral testimony of Pw-1 himself it is consensual act. Even as per Ex.P1 and 2 no external injuries found on the body of either prosecutrix or the accused. Viewed from any angle the prosecution has failed to place satisfactory, reliable and convincing evidence. There is no evidence on record to connect the accused for alleged charges against him. The prosecution has failed to establish its case beyond reasonable doubt. The 17 Spl C.C.220/13 benefit of doubt should go to the accused Hence, I hold Points No.1 to 4 in the negative.
23. Point No.5: 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 363, 366A, 343, 376 of Indian Penal Code r/w Section 3 r/w Section 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 6th day of August, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
18 Spl C.C.220/13 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Dr.B.M. Nagaraj PW.2 Ramachandrappa PW.3 Rathnamma PW.4 Varalaksmamma PW.5 Ramesh PW.6 Prosecutrix LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Medical report of victim Ex.P 1(a) Signature of PW-1 Ex.P 1(b) Signature of victim Ex.P 1(c) Signature of victim Ex.P 2 Medical report of accused Ex.P 2(a) Signature of PW-1 Ex.P 2(b) Signature of accused Ex.P 2(c) Signature of accused Ex.P 3 Complaint Ex.P 3(a) Signature of PW-2 Ex.P 4 Statement of PW-2 Ex.P 5 Statement of PW-3 Ex.P 6 Statement of PW-4 Ex.P 7 Statement of Pw-5 Ex.P 8 Spot mahazar 19 Spl C.C.220/13 Ex.P8(a) Signature of victim Ex.P9 Statement of victim Ex.P9(a) Signature of victim 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.
*** 20 Spl C.C.220/13 6.08.2016 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 363, 366A, 343, 376 of Indian Penal Code r/w Section 3 r/w Section 4 of Protection of Children from Sexual Offence Act, 2012.
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, 21 Spl C.C.220/13 Bangalore.