Bangalore District Court
SPL.C/359/2017 on 15 February, 2018
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 15th DAY OF FEBRUARY, 2018
- : PRESENT : -
SMT.M.LATHA KUMARI, M.A.,LL.M,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL.CC. NO. 359/2017
Complainant :
The State of Karnataka by
Banaswadi Police Station, Bangalore.
[Rep. by learned Public Prosecutor,
Bangalore.]
/ VERSUS /
Accused :
Christopher Jaswanth Raj @ Christopher,
S/o Jayaraj Bernard,
Aged about 35 years,
R/at No.3134, 6th 'C' Main,
13th Cross, Indiranagar,
HAL II Stage,
Bangalore 560 038.
(By Sri.V.Anand - Advocate)
****
2 Spl.C.C.359/17
JUDGMENT
This is a charge sheet laid by Banaswadi Police station against accused for the offences punishable under Section 376 of I.P.C and Section 4, 6 & 8 of Protection of Children from Sexual Offence Act, 2012.
2. This charge sheet reveals the sad story of a girl who was aged only 15½ years at the relevant time and who was allegedly subjected to sexual abuse, rape multiple times by accused who was dance teacher, at his dance academy and also in the 2nd floor vacant house (residential) situated above the academy.
The prosecution case in nutshell as per the complaint allegation is that, during April 2016, the victim had joined dance class in Attitude Counts Dance Academy of which the accused was a director. Initially the accused was close and friendly with her leading her to open up with him about the problems at home and school. During the month of September, the accused proposed and behaving inappropriately with her. One morning, when the accused 3 Spl.C.C.359/17 and victim were alone in the dance class, the accused began talking to her romantically and kissed her lips, which was objected by victim. The accused also used to attempt to influence the personal and academic life of victim by advising her to take dance as full time carrier, join open school, don't talk much with parents, family members, friends, stay in paying guest, if there is any obstructions from parents etc. On 17.12.2016, the dance academy had annual day function 'infinity'. After that, one morning, when the victim had gone to dance class, the accused started behaving badly with her in the lobby and thereafter, the accused pulled down the shutter, went near the victim, kissed on her lips and touched her private parts. The victim got frightened and was unable to respond. Even though she expressed that she was too young and lacks maturity to indulge in such activity, the accused forced her to have sex and in the process, he had removed clothes worn by both of them and had sex with her. Thereafter, the accused told her not to inform anybody about the incident as they would get into trouble. Subsequently, the accused had done same 4 Spl.C.C.359/17 thing for more than 5 times and she stopped going to class from 1st of April. On 2nd of April, mother of CW-4/PW-3 had called father of victim i.e.,PW-1 and informed that accused has badly behaved with her daughter and they are going to lodge complaint against accused . On the same day, evening victim told PW-3 what and all happened between herself and accused. On advice of PW-3, she decided to inform about the same to her parents and later on 8.4.2017, came along with her father (PW1) and lodged complaint as per Ex.P2 against accused. The Police Sub Inspector (PW8) received the complaint of victim at 14.05 hours registered F.I.R against accused as per Ex.P8 for the offences referred supra, conducted spot mahazar as per Ex.P1 at Attitude Counts Dance Academy of accused, subjected victim for medical examination. Further, investigation was conducted by Munikrishna.D.H, PI (PW9) by obtaining records pertaining to this case from PW-8 on 10.4.2017. On the same day, since this accused was in judicial custody in view of complaint lodge by PW-3 with similar allegation of sexual abuse and rape on her by 5 Spl.C.C.359/17 accused, PW-9 sought issuance of Body Warrant by this court, collected the articles of victim from Bowring Hospital, recorded the statement of CW2, CW3 and given requisition before learned Magistrate on 11.4.2017 requesting for recording victim's statement under Section 164 of Cr.P.C On 19.4.2017 learned Magistrate recorded statement of victim. Secured accused under Body Warrant taken him for police custody from 25.4.2017 to 27.4.2017 recorded his voluntary statement, conducted mahazar as per Ex.P7, seized licence pertaining to dance class, attendance register Xerox copy under Ex.P7. Recorded statement of punch witnesses CW7, 8, 11 also owner of building CW6, received F.S.L report as per Ex.p9, on 19.4.2017 collected victim's medical report as per Ex.P3, on 26.4.2017 subjected accused for medical examination at Dr. B.R Ambedkar Medical College & Hospital, collected his medical report as per Ex.P10. After completing the investigation, PW-9 laid charge sheet against accused on 2.7.2017.
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3. On receipt of the charge sheet, this court took cognizance of the offence and consequent thereto, charges were framed on 19.12.2017 under Section 376 of IPC r/w Section 5(l) of Protection of Children from Sexual Offences Act 2012 and Section 506 of IPC.
4. To prove the aforesaid charges, the prosecution has examined as many as 11 witnesses including the official witnesses as PW-1 to PW-11 and also produced some documents which have been exhibited as Ex.P1 to P10. On being prosecution evidence closed, the accused was examined under Section 313 of Cr.P.C , though accused not chosen to lead initially any defence evidence and only got marked certain documents Ex.D1 to D35. Later got examined 3 witnesses DW-1 to DW-3 on his behalf by reopening the case. His defence as put forth by him while cross-examining prosecution witnesses and also while answering question No. 71 of his 313 statement and by oral testimony of DW1-DW3 is that, his dance class was his dream. On 1st of April, he called CW-1,CW4 and told them 7 Spl.C.C.359/17 that, he has got meeting at Frazer town and only back by evening and asked to handle all the classes. He returned to his dance academy at 3.45 pm and found CW-1 standing on stairs with two boys standing on either side of her and CW- 4 sitting on the stairs with two boys sitting behind her and one boy sitting in front of her and all of them smoking Ganja, by seeing him one boy ran away. He blasted and shouted at them really badly. CW-1 said sorry and all of them went away running down the stairs. CW-4 started crying and saying she is sorry and begging accused to forgive her. He told CW4 that sitting in front of Jesus Christ placed in school , she has parted with dirty thing and she is spoiling CW1 and he told CW4 that he is removing her and inform parents of CW1, CW4. At that time CW4 started holding his legs and hold that, her father will beat her to death, if he get to know and she will be thrown out of house and she will have no option, but to commit suicide, accused asked her to leave the premises telling that he don't care. Then she has filed a complaint against accused and on the ill-advice of CW-4, CW1 has filed this complaint with an 8 Spl.C.C.359/17 intention to tarnish the image of accused. Nothing as alleged in the complaint has happened.
5. It is the contention of accused counsel that from a perusal of the entire materials so also section 164 statement given by the victim before learned Magistrate and her version before this court and the allegations made in the complaint . it is seen that there is no consistency Through out she has stated that she do not remember the date and time of alleged incident and once she says accused had sex with her more than 5 times, and then says more than 6 times, later says more than 7 times. Victim was out of dance class during January 2017 itself, how can she go in February and March 2017. Except oral testimony, there is no cogent materials placed by prosecution. According to victim, one day, she went early to dance academy, she called landline of accused Academy from her mobile to confirm class times. Investigating Officer would have secured the call details of landline of victim's mobile phone. Pw-9 not questioned about 4 months delay in 9 Spl.C.C.359/17 lodging complaint. Victim not enquired by doctor in accordance with medical jurisprudence and hence pray for acquittal of accused.
6. Per contra, the learned Public Prosecutor submitted that the girl is 15½ years. She is minor and from the allegation made in the complaint and in the statement of victim got recorded under Section 164 of Cr.P.C and on oath before this court the victim girl has stated in detail about the sexual act done by the accused on her, which is serious offence both under IPC as well as under provisions of the POCSO Act. Apart from victim, other materials witnesses PW-1, 3, Mahazar witness and also concerned doctor in all 11 witnesses examined by prosecution supported the case of prosecution. In the cross examination of these prosecution witnesses, nothing has been brought out to doubt their veracity to suggest as to why victim or her parents would falsely implicate accused by putting victim's own reputation on stake. Prosecution has discharged its initial burden as required under Section 10 Spl.C.C.359/17 29 of POCSO Act and accused on the contrary failed to place the materials to prove his innocence and hence pray for accused conviction on the charges levelled against him.
7. Considering the evidence available and hearing the arguments placed by the learned counsel for the parties, the following points that arise for the consideration of this court:
1. Whether the prosecution has proved that accused during April 2016, when the victim girl had joined dance class in Attitude Counts Dance Academy situated at No.2C-707, 1st Block, 2nd Cross, 7th Main, behind Om shakthi temple, HRBR Layout, of which the accused was a director. Initially the accused was close and friendly with her leading her to open up with him about the problems at home and school. During the month of September, the accused proposed and behaving inappropriately with victim girl. One morning, when the 11 Spl.C.C.359/17 accused and victim were alone in the dance class, the accused began talking to her romantically and kissed her lips, which was objected by victim. From September 2016 to March 2017 accused had forcible sexual intercourse with victim girl repeatedly and thereby committed offence punishable under Section 376 of I.P.C r/w Section 5(l) r/w Section 6 of Protection of Children from Sexual Offences Act 2012 ?
2. Whether the prosecution has proved that in the aforesaid date, time and place, accused threatened her life with dire consequences, if disclosed the above said incidents to anybody and thereby committed offence punishable under Section 506 of IPC?
3. What order?
8. My findings on the above points are as under:-
Point No.1 : In the affirmative
Point No.2 : In the affirmative
Point No.3 : As per final orders for the
12 Spl.C.C.359/17
following
REASONS
9. Points No.1 & 2: These two points are taken up for consideration together to avoid repetition of facts and circumstances.
10. As I have already stated, prosecution examined 11 witnesses in its behalf.
11. PW-1 is the father of victim girl. In his examination- in-chief he has stated that, his daughter was studying in 9th standard during 2016. Since she was having interest in Western dance, during her holidays, himself and his wife got admitted her to accused, dance Academy. Victim used to go to said dance class during holidays and started continuing the dance class during evening hours when once her school started. After few months they noticed change in the attitude of victim and she was also started loosing interest in academics. Observing this attitude of victim, PW-1 personally met accused during January 2017 and 13 Spl.C.C.359/17 informed him that, he put his daughter to dance class considering that she is having interest and he don't want her to become professional dancer and he want his daughter to concentrate on studies and she is not at all showing any interest in her studies. PW-1 also stated that, during holidays accused used to call his daughter and asked her to teach dance to sub-junior batch on the guise of encouraging her and made her to spend more time in his academy. He questioned accused even in this regard and also advised victim to concentrate more on her studies and academics. One day, victim started telling that, she is not interested to pursue her studies in the regular school which she has been already attending and she will take up studies in open school and concentrate more on her dance and if she would be forced to continue her academic in the same school, she will leave the house and stay in paying guest house. According to PW-1, victim brain washed to this level by accused himself. When things were going on like this, one day during April 2017 mother of PW-3 met him and told that accused has done bad thing with her daughter who 14 Spl.C.C.359/17 was initially student of accused dance academy and later got appointed as the instructor/teacher in the same academy. They also informed them about changes noticed in their daughter behaviour. PW-3's mother also told that, they are going to lodge complaint against accused with police. After two days from this discussion victim informed with her mother that, accused has done similar thing with her also i.e., he had sexually abused her and threatened her and also told her that she should behave according to his tune. Later they informed mother of PW-3 and also concerned police. PW-1 in his chief examination has deposed further that accused being married man having two children had forcible sexual intercourse with his daughter aged about 15 years 9 months and he has done all those sexual acts with victim, which will be done on an adult women. Having came to know that accused has all sought of sexual activity on victim child like that of an adult women, he informed police and later police conducted mahazar as per Ex.P1 at accused dance academy and his signature is as per Ex.P1(a).
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12. In his cross examination, it is suggested that concerned school authorities removed victim from school considering that her behaviour is not good. PW-1 denying the same stated that since victim was feeling discomfort in that school, he has changed her school. PW-1 admits that by obtaining promotion certificate from that school, victim was put to another school, since she would have been felt discomfort, if she failed in her academic during that year and continued in the same class and school. He has denied the suggestion that one can view the dance class lobby and reception even by standing near ground floor and PW-1 states that, there is no such opportunity since sign board fixed to dance class windows. He admits that, if one stands in lobby, they have view of dance class hall. At page 7 of his cross-examination, he is specifically questioned that victim attended only two days in December and 3 classes in January 2017, for which PW-1 answered that, his daughter is the better person to throw light upon the same. PW-1 states that victim is not having any boyfriends and only school friends are her friends. He pleads his ignorance 16 Spl.C.C.359/17 about one Abishek Savanth, Joseph, Shan , Gurmen Mehta. It is also suggested that victim's photo with these boys still available in the instagram and PW-1 states that may be and he has not personally checked her social media sites like instagram account. He further states that accused has brain washed victim. He denies that victim is having habit of smoking and deposes that, having came to know about sexual abuse on his daughter he was thinking like any other father, whether to take the matter to police, the consequence of legal procedure etc and he discussed the same with his family member and later informed police. He also denied the suggestion that, complaint lodged at the instance of PW-3 and states that, having came to know the sufferings committed against victim he himself informed police. Pw-1 also states that probably Pw-3 and her family member having came to know about acts committed on victim by accused, they came to meet him. PW-1 has also stated in his evidence that after came to know about sexual abuse on victim through accused, he could not meet him, since he was already in jail as per the similar complaint 17 Spl.C.C.359/17 given by PW-3. He also states that victim has stated before learned magistrate about the sufferings undergone by her in dance academy and she was not tutored in this regard by PW-3. PW-1 admits that PW-3 was present at that time and even today at his request, since victim will have to wait alone outside the court otherwise, he also deposes that his daughter being minor not capable enough to judge what is right and wrong and victim has been brainwashed by accused. Further statesthat, Persons like accused can brainwash victim easily. To sum up, PW-1 has deposed on oath about his daughter's trauma, reason for delay in lodging the complaint , changes in attitude of victim, location of dance class, attitude of accused towards victim, how he utilized her in the guise of bringing her up in dance also told her that he will exclusively open one dance class for her etc.
13. The victim girl was examined as PW-2. She narrated all the incidents in detail. The victim has clearly stated in her examination-in-chief that, one day she went to accused 18 Spl.C.C.359/17 dance academy very early during morning hours. Accused told her to wait telling that others will come little late. She was accordingly sitting in the lobby. Accused was also sitting and talking to her in the lobby. Accused all of a sudden came and sat next to her, she felt awkward. Accused started kissing victim and also started behaving with her forcefully inspite of her telling that, what he is doing is not correct and the accused removed her clothes also his clothes and had sexual intercourse with her. Though she was thoroughly cross examined, there is no suggestion in the cross-examination on the part of the accused to the aforesaid statement of the victim that the accused did not remove her clothes. On the other hand, at page 17 of her cross-examination, it is elicited that, when accused was removing her clothes by holding her tightly "she was crying loudly".
14. The victim girl narrated in her evidence as PW-2 the various events which took place from the day she joined accused dance academy i.e., April 2016 to the day she 19 Spl.C.C.359/17 stopped to going to dance class i.e., 1st of April 2017. As mentioned earlier, she was raped by accused in the dance class and also she has taken to 2nd floor house which was vacant and accused was holding the keys of said house. She narrated about the incident in her complaint Ex.P2, before learned Magistrate as per Ex.P5, before doctor as per Ex.P3 and before this court as PW-1. The learned counsel for accused submitted that the version of victim girl with the number of times accused had sexual intercourse with her is vague. In complaint she says 5 times, before doctor she says 6 times, before Magistrate she states that once in lobby and one or two times in 2nd floor house situated above the dance academy. She also not given exact date and times and only says she do not remember the date and time. It is also submitted that if accused committed such act on victim during December 2016 after infinity programme, victim girl was free to take her own decision to stop going to dance class and also could have informed her parents and victim continued to attend dance class also not informed her family members and that it 20 Spl.C.C.359/17 would indicate that there was no such act committed by accused. I am not inclined to accept this contention. The victim herein is an adolescent girl, there is no reason why she should falsely implicate the accused. There is no case for the defence that the victim had any axe to grind with the accused, that too by putting her dignity at risk. It is the defence of accused that on 1st of April 2017, he told PW-2, 3 to take care of class and he has got some meeting at Frazer town, when he returned around 3.45 pm, he found both of them with other boys, sitting near stairs and smoking Ganja. He blasted them and also told PW-3 that he will inform the parents of both. Whereas accused neither informed parents of PW-3 nor PW-1 victim father. Nor it is the case of accused that after blasting them, he informed the same to dW-1 and DW-2 other instructor.
15. DW-1 and 2 deposes that on 1st of April they were in the dance class as usuall and went for lunch during afternoon returned around 4 to 4.30 pm and accused told that PW-2, PW-3 with other outside boys found sitting and 21 Spl.C.C.359/17 smoking and he chased them out. These two defence witnesses who were brought to scean subsequently by reopening the case, not stated before this court that, accused had meeting at Frazer town and left early on that day. It is also not their version that accused while going so informed PW-2, PW-3 to take care of classes. According to accused it happened on 1.4.2017. If victim stopped attending her dance class during January 2017 itself, where was the scope for him to inform victim and PW-3 to take care of class during April 2017. This version of accused establishes that victim was coming to his dance academy till April 1st 2017 and she was also taking care of classes. It is the exact version of victim and her father PW-1 that accused put her to teach sub junior batch and made her spend more time in the academy in the guise of encouraging her. Further, accused counsel also submitted that, in the cross-examination of PW-1 and PW-2, it was brought out that some of the details regarding the incident of alleged sexual intercourse were not stated to the Investigating Officer PW-9 and PW-2 deposes that one day 22 Spl.C.C.359/17 she was asked to come from back door of the dance academy and there is no such back entry and also 2nd floor owner's son and his family were residing till recently and question of accused access to said house is not possible and these details were not mentioned in her complaint also not mentioned in the statements given to any of Investigating Officer i.e., PW-8 and 9. It is to be noted that, in Ex P2, victim stated that after December 17th infinity programme, when she went to dance class, accused talking to her in the lobby came and sat next to her and while talking only he had sex with her and after this incident till the month end of March he has done the same thing to her more than 5 times and she stopped going to class from 1.4.2017. Further before learned Magistrate, she has stated that, she was also taken to 2nd floor vacant house situated above the dance class and had sex with her. This omissions were not in respect of any incidents of sexual intercourse over the period of 4 months, but those were in respect of finer details of the same and it cannot be said that there was only omissions, PW-9 since victim was 23 Spl.C.C.359/17 minor gave requisition to learned Magistrate requesting to record statement of victim under Section 164 of Cr.P.C and learned magistrate recorded her statement. Since he was investigating this case against accused not only under Section 376 of IPC, but also under POCSO Act, it is obvious that he has to follow the procedure contemplated under Section 24 to 26 of POCSO Act. When victim was made to give her statement before PW-8 by way of Ex.P2, before doctor as per Ex.P3, before Magistrate as per Ex.P5, it cannot be said that victim shall exactly remember and reproduce her statement before all these officials. Furhter, it is not forthcoming in the evidence of PW-8 and PW-9 that any one of them have individually recorded the statement of victim under Section 161 of Cr.P.C When proper investigation was conducted, the necessary details regarding the incident were recorded in the statement of the victim under Section 161 of Criminal Procedure Code Where as in this case, none of the Investigating Officer recorded her statement as regard to the details which were unable to be given to any of the Investigating Officer.
24 Spl.C.C.359/17 Victim provided those details to this court and in my view those details are finer details of the incident and this would not really constitute omissions.
16. From the perusal of the entire materials so also section 164 of Cr.P.C statement given by the victim girl before the learned Magistrate and the allegations made in the complaint Ex.P2 and her version recorded on oath before this court, it is seen that there is consistency in so far as sexual intercourse done by the accused on victim is concerned. Victim is a young girl of 15 ½ years. Even if she stated in her complaint , she stated that after advice of PW-3, she decided to tell her parents and file the complaint, it appears natural and the entire version of the PW-2 cannot be brushed aside by the court. PW-1 deposed before this court that, probably PW-3 parents came to know about sexual act done by the accused on the victim girl they approached him and informed about their daughter's (PW3) story of sexual abuse. Minute omission would not make the evidence of material witnesses like PW-1 and victim PW-2 25 Spl.C.C.359/17 untrustworthy. Further, much was canvassed about absence of back door entry. I.O /PW-9 inspite of victim statement as per Ex.P5 before learned Magistrate that she was taken to 2nd floor and accused had intercourse with her in that house, Investigating Officer not chosen to inspect said house and conduct mahazar in that house. It is not the contention of PW-8, 9 Police officials that they thoroughly inspected/seen in and around the place of occurrence. On the other hand, though various photographs produced on behalf of defence, building actual plan not produced. In a case of this nature, it is humanly impossible to expect the victim girl to give exactly the topography of location and to narrate all the details with regard to the incident. It is sufficient if the incident as such are mentioned in the statements given to Investigating Officer or other officials. Infact when DW1-dw2 asked about other gate by the side of main stairs from ground floor ,they pleaded that they do not know and they have not exactly denied it. The evidence of victim girl runs about 26 pages and she had narrated about various acts of 26 Spl.C.C.359/17 accused, how he was friendly with her in the beginning and she started sharing with him about her problems and also narrated about several incidents of sexual intercourse which took place at dance academy and also 2nd floor house according to PW-8 and 9 said house was vacant. Though it is the defence of accused that to reach said house there are two gates, one near his dance class and another gate was in front of main door, these two gates always kept under lock and keys were with the owner. Where as according to PW-2 and 3 one gate situated near dance class was usually kept unlocked and keys pertaining to said house and gate situated in front of the house were with accused. The version of victim that other gate to reach said house kept open always has been established in the photograph Ex.D6 produced by accused himself and in this photo itself said gate kept open and not under lock. When it is the specific contention of accused that 2nd floor house was in the occupation of owner son and his family, it is for him to establish the same. Oral testimony of CW9/PW6 who is owner of the house and also DW1, 2 will not help accused 27 Spl.C.C.359/17 since these witnesses being interested witnesses of accused who are certifying that accused is basically good person of good character. That apart DW1-DW2 have stated that they have not observed and one says daughter and other witness says son or somebody. When such being their oral testimony accused would have produced gas connection bill or telephone bill or Aadhar card of owner's son etc to establish that he was staying in the said house with his family members. It is obvious that if son and his family of PW-6 is staying in that house, they will be having LPG connection and in a case like this it is inevitable for accused to produce such positive evidence in support of his defence. PW-8 and 9 stated before this court that, said house was vacant according to their investigation and Ex D6 substantiate not only the version of IO, but also victim. That apart accused failed to produce cogent materials to establish his defence that said house was in occupation of owner's son and his family. Apart from PW-1 and PW-2, prosecution examined another material witness PW-3 who was earlier student of accused and who later joined accused 28 Spl.C.C.359/17 academy as instructor. Even she has supported the case of prosecution and deposed that she has seen, accused calling victim to 2nd floor during her practice time. That apart it is come in the evidence of PW-2 and PW-3 that they told each other about the problem caused by accused to them and PW-2 as per the advise of PW-3 informed her parents. Hence PW-3 came to know about the incident from PW-2. The learned Senior counsel Sri. V.A appearing for the accused submitted that the oral evidence of PW2/victim is not believable and reliable and she is only acting to the tune of PW-3 who was present all along with PW-2 right from time of complaint to taking her to hospital, before learned Magistrate and also this court during her evidence. This submission has been answered by PW-1 during his cross examination by deposing that, at his request thinking that his daughter will be alone, she accompanied her. Pw-3 also stated that PW-2 stopped coming to class from January 2017. Accused did not liked the same and asked PW-2 to attend weekend crew classes and whenever PW-2 use to come for such weekend 29 Spl.C.C.359/17 /Saturday, Sunday classes, accused used to take her to 2nd floor house without allowing her to learn dance. In her cross-examination, it is suggested that parents of PW3 are not residing together. It is also elicited in her evidence that accused used to share with them about his wife's problem and PW-3, DW-1, one Anju, Shruthi used to console accused. It is also elicited in her class examination that accused removed DW-1 from his Dance academy stating that he has misappropriated the funds and also stolen the jacket of students. DW-1 also admits the same in his cross- examination by the learned Public Prosecutor. Further it is suggested that accused removed DW-1, since PW3 complained that he is misbehaving with her and PW-3 has deny the same. However, accused himself while answering question No.40 during recording his statement under Section 313 of Cr.P.C answers that in the middle of January due to misunderstanding of accounts some of the trainers quit and some of the dance classes assigned to her. Further, it is elicited that PW-2 is also crew member and crew member team consisting of dancers and only practice 30 Spl.C.C.359/17 for any dance programme. At page 13, para 7 of cross- examination of PW-3, it is elicited that accused used to take PW-2 in between dance class to said house situated on the top floor of dance class and she has not noticed what she used to do after returning from said house. According to the evidence stated by PW-3, PW-2 used to take lot of time whenever she used to go with accused and by the time she returns, PW-3 used to be busy with sub-juniors batch and thereby unable to notice what she use to do later.
17. Further learned counsel for accused stressed much upon version of PW-3 at page 15 of her cross-examination, wherein she has stated that when she went to the house of PW-1 along with her parents, she told in front of them what happened to her from accused and at the same time PW-2 also told the same i.e., about her incident to all. It is the contention of learned counsel for accused that, according to PW-2, as per her complaint Ex.P2 she told to PW-3 the same day evening over the phone then, thereafter as per PW-3 advise she decided to tell her parents and there is lot 31 Spl.C.C.359/17 of discrepancies in the version of PW-2 and PW-3. In this regard it is necessary to go through the principles laid down by the Hon'ble Supreme Court. In State of Punjab Vs Gurmit Singh and others (AIR 1996 SC 1393) The Hon'ble Supreme Court held that:
"The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking
32 Spl.C.C.359/17 for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable, just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual 33 Spl.C.C.359/17 offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity least that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Court cannot cling to a fossil formula and insist upon corroboration even it, taken as a whole, the case spoken of by the victim of sex crime strike the judicial mid as probable"
34 Spl.C.C.359/17 As I have already stated there is consistency in so far as the sexual intercourse done by accused on victim, in the evidence of PW-1, 2 and 3 it is also elicited in the cross- examination of PW-3 that during 2016 and 17 no one were residing in the said house at 2nd floor.
18. PW-4, 5 are mahazar witnesses. PW-6 is owner of the building. According to her, in her second floor house, her son and daughter-in-law were residing. Whereas in the cross-examination of DW-1, he deposes that water pump motor switch was kept in the 2nd floor house. Further, if PW-6 son and daughter-in-law were staying in that house, defence would have produced gas connection slip or land line telephone bill or any such authenticated documents. The version of DW-1 and DW-2 in this regard is contradictory to version of PW-6.
19. PW-7 Police Constable speaks about accompany victim to Bowring Hospital.
35 Spl.C.C.359/17
20. PW-8 PSI speaks about receipt of complaint as per Ex.P2 and drawing of mahazar in the dance class as per Ex.P1. In her evidence it is elicited that 2nd floor house was vacant and there is only little visibility of dance hall from lobby.
21. PW-9 is the Investigating Officer and he deposes that apart from oral testimony of victim, there exists Ex P3 medical report of victim and also opinion of doctor to establish about the incident.
22. Doctor who examined accused was examined as PW-
10. In his chief-examination, PW-10 deposes that, during examination of accused, he gave self statement and he recorded the same as per Ex.P10(d) and accused put his signature for his statement as per Ex.P10(c ). Accused ahs not denied his examination with PW-10 when he was questioned during his statement under Section 313 of Cr.P.C, so also his signature on Ex.P10. In his cross- examination, it is elicited that accused gave his statement in Hindi and English language. It is also elicited that 36 Spl.C.C.359/17 accused was unable to read Kannada and further PW-10 has stated that he himself read over the same to accused. PW-10 denied the suggestion that accused has not given any such statement before him and he recorded Ex.P10(d) based on police requisition history.
23. PW-11 evidence is quit vital in this case. She is the doctor who has examined the victim. According to her evidence, the hymen was absent when she examined genital organ of victim and it admits easily two fingers. Further it is elicited that as per her report Ex.P3 victim is used to sexual act and if one is very active in sexual activity there is chances of such person becoming pregnant and PW-11 deposes that it depends and if the sexual intercourse takes place in safe period, there is no chances of one becoming pregnant. PW-11 stated that victim has given statement before her stating that accused had sexual intercourse with her 6 times. She admits that, she has not enquired about boyfriends of victim. Further she was questioned at length about chances of injuries on genital 37 Spl.C.C.359/17 area in cases of forcible intercourses. Whereas in the case on hand, PW-2 deposed that accused while talking only he had sex with her and said won't she feel good. Discovery of spermatozoa in the private part of the victim or injuries on her private parts or any parts of her body is not a must to consider it as rape or aggravated penetrative sexual assault. Even slight penetration of penis into vagina without rupturing the hymen can constitute rape. While answering to court question PW-11 stated that if girl subjected to sexual activity for 6 times, her hymen easily admits two fingers. Accused is not disputing that victim is used to sexual activity as per the opinion of doctor. His defence is that he is not responsible for same.
24. Prosecution by examining as many as 11 witnesses including victim, her father (PW-2), friend (PW3), doctor PW-11 established before this court that accused has committed sexual abuse on victim being her dance teacher. Apart from PW-1 to 3, what actually transpired on the fateful days should have been within the exclusive 38 Spl.C.C.359/17 knowledge of the accused and the accused alone. Accused got marked attendance register of victim and stated that victim only attended his class for 3 days during January 2017 and later she did not came to his dance academy. Where as while recording his statement under Section 313 of Criminal Procedure Code, while answering question No.71 - accused stated before this court that on 1st April he left the academy early asking CW-1 and 4 to take care of classes. This version establishes that CW-1 attended the classes till 1st of April and she was not only learning dance but also taking care of accused dance classes. It is the evidence of PW-1, 2 that accused put victim to teach other students in his dance academy.
25. With these evidence in background, it is now time to discus the provision of Section 29 of the POCSO Act 2012. Since, accused has been tried before this Special Court for offences punishable under Section 5(l) of POCSO Act. Apart from 376 of IPC.
Section 29 of POCSO Act reads as under:
39 Spl.C.C.359/17 "Presumption as to certain offences - 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".
The use expression "shall presume" has been defined in Section 4 of the Indian Evidence Act 1872 and connotes legal presumption or compulsory presumption. Thus, as per Section 29, if a person is prosecuted for committing or abetting or attempting to commit any offence under Section 3, 5, 7, 9 of POCSO Act, the special court shall presume that such person has committed or abated or attempted to commit the said offence as the case may be unless the contrary is proved. The learned counsel for accused argued that Section 29 is highly arbitrary and unreasonable and violates the provision of Article 14 and 20(3) of the Constitution. At this stage, it is necessary to rely upon the analogy of the principles laid down by the Hon'ble High Court in Harikumar Vs. State of Karnataka reported in ILR 1993 Kar 3035. In this citation Hon'ble High Court held that presumption contemplated under Section 8-A of 40 Spl.C.C.359/17 the Dowry Prohibition Act could be directed only after the initial burden for offences punishable under Section 3 and 4 of D.P. Act is effectively discharged. Relying upon these principles, this court opines that the initial burden is on the prosecution to prove that the accused committed aggravated penetrative sexual assault multiple times on victim as defined in section 5(l) of POCSO Act and discharge of such initial burden, the burden shifts on accused to prove the contrary. Prosecution by examining victim, her father, friend, mahazar witnesses, IO and doctor by producing as many as 10 documents discharged its initial burden of proof and now the burden shifts on accused and it is for his to establish the contrary.
26. Accused can discharge his burden in two ways. Firstly, the accused can point out in the evidence led by the prosecution that either the very ingredients of the offence for which he is being prosecuted does not stand proved or that evidence of prosecution witnesses examined is not cogent, convincing and reliable. This he can achieve only by 41 Spl.C.C.359/17 way of cross-examination of the prosecution witnesses. Secondly, the accused can lead evidence in his defence and such evidence can only be 'positive' evidence. The word 'positive' signifies the nature of evidence which could make the commission of the offence in question by the accused improbably. In this exercise, after arguing the case at length on explanation of Section 29 by this court, learned counsel for accused, got reopened the matter which was posted for judgment and led the evidence of 3 witnesses on his behalf as DW-1 to DW-3.
26. Wherein by examining DW-1 to DW-3 accused has discharged his burden and able to prove himself innocent is a point to be considered at this stage. DW-1 and 2 deposes that on 1st April both of them had been out for lunch and shopping, returned to dance class around 4 to 4.30 pm accused told them that CW-1, 4 were sitting only with some boys near stairs and smoking and he chassed them out. Where as DW-1 admits in his cross examination that, he was removed from job by accused on allegation of 42 Spl.C.C.359/17 misappropriation of funds and stolen jacket somewhere during January 2017 itself. Further accused himself while recording his 313 statement has stated that due to misunderstanding in accounts some of the trainers quit by themselves and some were removed during middle of January 2017. Further, DW-1 and DW-2 are not aware about who actually residing on second floor house. According to accused, it is not his defence that after chasing CW-1, 4, he informed DW-1 and 2. According to him he told CW-1 & 4 to take care of classes and left for meeting at Frazer town. If DW-1 and 2 were actually available in dance studio at that time, there was no reason for accused to ask CW-1 and 4 to take care of classes. This version of accused recorded during his examination under Section 313 of Criminal Procedure Code establishes that DW-1 and 2 were not at all working with accused at that time, nor they were present at that point of time. Further, it is not the case of accused that, he later informed about the same to DW-1 and 2. Under such circumstances, the evidence of DW-1 and 2 is not of any help to accused. DW- 3 is father 43 Spl.C.C.359/17 of one Manisha, child aged about 6 years and student of dance academy. He speaks good about accused. Accused also placed one CD and appreciation letter given by the Police Commissioner. None of these documents/exhibits establishes the contrary. It is not the version of victim that she was subjected to sexual assault by accused in presence of every one including DW-1 and 2. According to her accused was very friendly with her and she started discussing her problems related to home and academic and accused used to listen to her and talking to her and one day when she went early, accused alone was in the studio and while talking to her, inspite of her telling that what he is done is wrong and had sex with by removing her clothes and also his clothes. PW-1 deposed that accused brain washed his daughter. PW-3 has stated that accused felt bad by knowing that victim stopped coming to dance class from January 2017 and called her and asked her to attend weekend classes. According to accused even on 1st of April, CW-1 was present in his studio. While canvassing arguments, learned accused counsel submitted that there 44 Spl.C.C.359/17 are improvements, omission and contradictions in the oral testimony of PW-1 to 3.
In Matadin and others Vs State of U.P (AIR 1979 SC 1234) the Hon'ble Supreme Court held that "the statements given by the witnesses before the police are meant to be brief statements and could not take the place of evidence in court. Where the omissions are vital they merit consideration, but mere small omissions will not justify a finding by a court that the witnesses concerned are self contained liars "
27. On a reading of the evidence of the victim girl (PW-
2) and her father PW-1 discussed supra, this court is of the view that their evidence is reliable and acceptable. There is a ring of truth in their evidence. There is no reason why they should falsely implicate the accused. In this court, the evidence of the victim girl is not the solitary piece of evidence to connect the accused with the crime. The evidence of the victim girl is corroborated in material particulars by other mateials in the court. The actual act of
45 Spl.C.C.359/17 rape normally would not be witnessed by any person. Therefore, it is unthinkable that there would be corroboration of the evidence of the victim girl on the aspect. According to the victim girl, she was asked to attend weekend classes by accused when her father PW-1 met accused and informed that his daughter will no more come to dance classes. The statement of accused that on 1st of Aril he asked CW-1, 4 to take care of classes, indicate that accused made her to come to his dance studio. Further, accused admits that victim's father met him during January 2017 and told that his daughter will not come to dance class. PW-3 instructor in the accused academy states that accused called victim and asked her to come to weekend classes. Further, PW-11 doctor deposes that, victim has been used to sexual activity. In the cross- examination of PW-1 it is suggested that victim removed from school for her misbehavior. Whereas prosecution has produced bonafide/study certificate of victim as per Ex.P10. This document came to be marked with consent and in this certificate it is certified that victim is a bonafide student 46 Spl.C.C.359/17 of the institution (school name available in Ex.P10) Statement of accused recorded under Section 313 of Cr.P.C enables this court to explain incriminating circumstances appearing against him in prosecution evidence and it is not a mere formality. It has a salutary purpose. It enables the court to be apprised of what the indicted person has to say about the circumstances pitted against him by the prosecution accused offered some explanation while answering question No.71 and this court got the advantage of knowing his version and there by effectively appreciate and evaluate the evidence in this case. No doubt, accused can keep silent when he is examined, but if the accused make the statement supporting the prosecution case, in his examinatin, such statement can be used against him as per the citation of Hon'ble Supreme Court reported in AIR 2012 SC 1357.
28. Accused while answering question No.71 given detail explanation stating that, CW-1 and 4 were found smoking ganja and he chased them by telling that he will inform to 47 Spl.C.C.359/17 their parents. Whether accused has discharged his obligation towards his students, whether he has informed the parents of CW-1, 4/PW2 and 3. Accused has not informed them. He also stated that his dance academy is like a church for him. Probably his students are like mother merry for him. If such being the case, as a responsible director of the academy accused would have informed PW-1 atleast, whom he met during January 2017 and thereby acquainted with him. Whereas accused neither informed PW-1 nor parents of PW-3. This silence on part of accused establishes before this court that accused is a liar and not worth trusting his statement. Further accused not produced any positive materials to show that 2nd floor house was under the occupation of owner's son and daughter-in-law. PW-8 and 9 deposes that said house was vacant. Pw-3 deposes that house was vacant and accused used to take PW-2 to said house. PW-2 deposes that accused took her to 2nd floor house and had sex with her. In the absence of positive evidence, there is no reason to disbelieve the oral testimony of interested witnesses. In a 48 Spl.C.C.359/17 case like this apart from victim, it is the accused who is actually aware of what has happened. Under such circumstances, accused instead of examining DW-1 to 3 who are no way connected to the incident, would have examined himself and subjected himself for cross examination, so as to put forth the truth in his knowledge. While cross examining DW-1 and 2 learned Public Prosecutor suggested that accused is not in good terms with his wife and his wife has filed harassment case against him and also divorce petition. Whereas DW-1 and 2 pleads their ignorance about personal life of accused and DW-2 deposes that he will not interfere in personal life of others. Then it is probable that he is not aware of personal acts committed by accused against victim. If accused examined himself on his behalf, prosecution would have got an opportunity to elicit about the conduct of accused. It is the version of victim that accused threatened her telling that, if she reveal about the incident both of them will be put to risk and he is a don in the locality. PW-1 deposed that accused brain washed her. PW-1 in her deposition has 49 Spl.C.C.359/17 been categorical, clear and unequivocal that the accused committed sexual intercourse with her multiple times somewhere from December 2016 to end of March 2017. It is true that in her statement before learned Magistrate as per Ex.P5, she has stated that accused informed her that he is don in the area and already taken the life of some persons and thereby threatened her accordingly having frightened with accused she kept quite and this aspect was neither stated in the FIR nor before doctor. But, this contradiction does not make her evidence unreliable. As I have already stated there was no reason for victim to falsely implicate accused. There is also no case of the defence that the victim girl had any exe to grind with accused. Under such circumstances, this court opines that it would be safe to rely on her evidence which is also supported by PW-1 and PW-3.
29. Now, it is time to answer the quarries of defence. The learned counsel for accused Sri. V.A asserted that, there is inordinate delay in lodging the FIR by the victim to 50 Spl.C.C.359/17 the police and even according to oral testimony of PW-1, after discussing with police officers and family members and parents of PW-3 FIR came to be lodged before complainant-police. Since, the offence of rape or abusing the child sexually is a grave offence, Hon'ble Supreme Court in Gurmit Singh's case referred supra observed that, any delay in lodging the FIR by the victim or the parents of the victim to the police should not be blown out of proportion to doubt the veracity of the victim in a rape case. Further, the reluctance to face interrogation by the investigating agency, to face the court, to face the cross- examination of the counsel for the culprit and the risk of being disbelieved act as a deterrent and in view of the same, usually there will be delay in reporting the matter to concerned police. That apart, PW-1 stated before this court that after came to know about the act done by accused on her daughter, he discussed with his wife and family members about the legal procedure and other aspects and then lodged the complaint. Under such 51 Spl.C.C.359/17 circumstances, the delay in lodging the complaint is not at all fatal to the case of prosecution.
30. The learned counsel contended that medical examination of victim not conducted in accordance with medical jurisprudence. As per Section 27 of the POCSO Act, medical examination of the child has to be conducted by a women doctor in accordance with Sec 164 of Cr.P.C that too in the presence of the parents or any other person in whom child reposes trust or confidence. PW-11 lady doctor has examined the victim in presence of her guardian and natural father PW-1 and recorded the statement of victim as stated by her during her examination and submitted the report as per Ex.P10. When such being the case, there is no stuff in the contention raised by the learned counsel for accused. It is also contended that there is absence of proper medical evidence to connect the allegations of rape. As I have already stated according to PW-11 on genital examination of victim, she found hymen absent which admits easily two fingers. This is good 52 Spl.C.C.359/17 evidence in regard to the offences of rape or sexual abuse of a child. At this stage itself, it is necessary to define the word 'child' as defined in Section 2(d) of the POCSO Act 2012. A child means any person below the age of 18 years. The victim herein admittedly is a 15½ years child at the time of incident. From her oral testimony before this court and also as per her complaint Ex.P2 and her statement before learned magistrate as per Ex.P5, it is evident that victim only succumbed to the act of accused and she was unable to resists. Under such circumstances, some scratch marks or any injury on her genital part cannot be expected. That apart, on behalf of defence some photographs of victim produced before this court taken from instagram and also tried to canvas that victim was having boy friends. Whereas, accused not placed cogent material to establish that victim has been subjected sexual activity by somebody else. At this stage, it is necessary to make it clear that there is absolutely no material to come to the conclusion that victim had sexual intercourse with a large number of persons to satisfy her lust. How could anybody can imagine 53 Spl.C.C.359/17 that a girl aged about 15½ years of age would roam around boys, have sexual intercourse with them to satisfy her lust. This thinking of accused itself establishes that he is not a man of good conduct with good thinking. Further, it is also asserted that no weightage can be given to the oral testimony of PW-3 and she is only a hear-say evidence. In this regard, it is necessary to rely upon the Section 6 of the Evidence Act, which deals with res-geste and requires to be considered in proper perspective. PW-2 has stated in her first information that she called PW-3 and told about the incident, who in turn advised her to inform her parents. Hence, the evidence deposed by PW-3 with regard to incident is the version of the victim told to her immediately without an interval for fabrication and thereby oral testimony of PW-3 comes within the ambit of Section 6 of the Evidence Act and thereby admissible in this case. Further, with regard to Section 29 of the POCSO Act learned accused counsel also relied upon various unreported citations of the Hon'ble High Court of Delhi, Calcutta and Bombay. Since, the learned counsel for fairly concedes that 54 Spl.C.C.359/17 the said citations are no binding effect being unreported Judgments, not discussed herewith. On appraisal of the evidence discussed supra and on considering the various arguments raised by learned counsel for the accused this court opines that, there is absolutely no reason to disbelieve the case of complainant. Prosecution successfully established the guilt against accused for the offences punishable under Section 376 of IPC r/w Section 5(l) or POCSO Act and also Section 506 of IPC. On the contrary, accused failed to discharge his burden as required under Section 29 of the POCSO Act 2012. Accordingly, I hold points No.1 & 2 in the Affirmative.
31. POINT NO.3: In view of my above discussion and findings, I proceed to pass the following:
ORDER Accused is found guilty of the offence punishable under Section 376 of I P C r/w Section 5(l) r/w 6 of Protection of Children from Sexual Offence Act and also Sec 506 of IPC.
55 Spl.C.C.359/17 To hear regarding sentence.
(Typed by the Stenographer as per hand written copy of P.O and corrected by P.O and then print out taken by him and signed and then pronounced by me in open court on this the 15th day of February, 2018.) (M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
ORDER ON SENTENCE Heard the learned Public Prosecutor and also the learned counsel for accused regarding the sentence. The accused counsel pray for minimum punishment and a lenient view stating that accused has got aged parents, wife and young children as his dependents.
2. The learned Public Prosecutor has submitted that Protection of Children from Sexual Offences Act 2012 being special enactment came into existence to protect sexual exploitation and sexual abuse of children effectively and no leniency can be shown to accused.
3. Accused was aged about 32 years as on the date of occurrence. He has committed heinous offences like rape 56 Spl.C.C.359/17 on a child aged about 15½ years. The offence is inhuman. To show leniency in the case of this nature amounts to dealing with heinous offence casually. Sexual offence against helpless minor leaves behind her a traumatic experience and pushes her into deep emotional crisis. Such an act is also violative of the victim's most cherished right not only of her childhood, but also right to life which is a fundamental right. The Hon'ble Supreme Court in Ravji @ Ramachandra Vs. State of Rajasthan observed that "the court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong". Hon'ble Supreme court also observed that, it is the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. The courts must not only keep in view the rights of the victim of the crime, but also the society at large while considering the imposition of appropriate punishment. Accused has exploited the helplessness of 57 Spl.C.C.359/17 victim girl and also her adolescence. He stooped to the level of an adventurer in sex, trapped a minor girl and put her to untold misery and hardship. It does not deserve any sympathy. Showing leniency in awarding sentence in a case like this makes intention of legislature itself stale, which considered rape to be such a heinous as to attract imprisonment up to life. Further, showing any mercy to culprit amounts to giving licence to those who keep on looking for opportunities to exploit the sentiments and vulnerability of Indian minor girls. Taking into account the nature of offence committed and the plight of the victim who had been subjected to such offence multiple times, this court feel that no leniency need be shown to on accused herein. Taking into account all these circumstances, more particularly the effect of crime against CW-1 in particular and the society at large, it is necessary to impose maximum sentence of imprisonment, i.e., sentence of imprisonment for life for the offence committed by accused under Section 376 of IPC r/w Section 5(l) for which Section 6 of Protection of Children from Sexual Offence Act is the penal clause. In 58 Spl.C.C.359/17 view of the same, no separate punishment need be imposed on the accused for other offence i.e., 506 of IPC. Accordingly, I proceed to pass the following ORDER Acting under Section 235(2) of Cr.P.C. accused is hereby convicted with a sentence of imprisonment for life for the offence under Section 376 of I.P.C r/w Section 5(l) of Protection of Children from Sexual Offences Act 2012 and shall also be liable to pay a fine of Rs.1,00,000/- and no separate punishment need be imposed on the accused for other offence i.e., Section 506 of IPC for which he is convicted.
Relying upon the provisions of Rule 7(2) and Rule 7(4) of POCSO Act, considering the gravity of the offence and the severity of the mental and physical harm suffered by the child and also Government Order No:HD 1 PCB 2011, Bangalore, dated 19.9.2013, a sum of Rs.3,00,000/- by way of compensation to victim is awarded. The same shall be made over to the victim by the State Legal Services Authority, (S.L.S.A). Copy of this judgment be sent to the Member Secretary, S.L.S.A forthwith for information and compliance.
Bail bond of the accused stands
cancelled.
59 Spl.C.C.359/17
Free copy of this Judgment to be
supplied to the accused.
(Typed by the Stenographer as per hand written copy of P.O and corrected by P.O and then print out taken by him and signed and then pronounced by me in open court on this the 15th day of February, 2018.) (M.LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Rajesh B Sondagar PW.2 Victim girl PW.3 Karishma Singh PW.4 Sini PW.5 Vijay PW.6 V.R. Choodamani PW.7 Smt. Ramya PW.8 Prasheela B A PW.9 Munikrishna D H PW.10 Dr. B.M. Nagaraju PW.11 Dr. Thejaswini LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Spot panchanama Ex.P 1(a) Signature of PW-1 60 Spl.C.C.359/17 Ex.P 2 Complaint Ex.P 2(a) Signature of victim Ex.P 3 Medical report of victim Ex.P 3(a) Signature of victim Ex.P 4 Statement of victim Ex.P 4(a) Signature of victim Ex.P 5 Statement of victim u/Sec 164 of Cr.P.C Ex.P 5(a) Signature of victim Ex.P 6 Attendance register Ex.P 7 Spot mahazar Ex.P 7(a) Signature of PW-5 Ex.P 8 F.I.R Ex.P8(a) Signature of PW-8 Ex.P9 FSL report report Ex.P10 Medical report of accused Ex.P10(a) Signature of PW-8 LIST OF MATERIAL OBJECTS MARKED Nil LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE Ex.D.1 to Photos 29 Ex.D30 Visiting card of DW-1 Ex.D 31 Time table photo Ex.D32 to Photographs 33 Ex.D34 Visiting card of DW-2 Ex.D 35 Photographs to 38 Ex.D39 C.D 61 Spl.C.C.359/17 Ex.D40 Register extract consisting the name of Manisha daughter of DW-3 LIST OF WITNESSES EXAMINED, ON BEHALF OF DEFENCE DW-1 Michel Aravind DW-2 Christi DW-3 Sendil Kumar LIST OF MO.S MARKED ON BEHALF OF DEFENCE NIL (M.LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
*** 62 Spl.C.C.359/17 15.02.2018 Judgment pronounced in the open court, operative portion of which reads as under:-
ORDER Accused is found guilty of the offence punishable under Section 376 of I P C r/w Section 5(l) r/w 6 of Protection of Children from Sexual Offence Act and also Sec 506 of IPC.
To hear regarding sentence.
(M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
63 Spl.C.C.359/17 Orders on Sentence pronounced in the open court, operative portion of which reads as under:-
ORDER Acting under Section 235(2) of Cr.P.C.
accused is hereby convicted with a sentence of imprisonment for life for the offence under Section 376 of I.P.C r/w Section 5(l) of Protection of Children from Sexual Offences Act 2012 and shall also be liable to pay a fine of Rs.1,00,000/- and no separate punishment need be imposed on the accused for other offence i.e., Section 506 of IPC for which he is convicted.
Relying upon the provisions of Rule 7(2) and Rule 7(4) of POCSO Act, considering the gravity of the offence and the severity of the mental and physical harm suffered by the child and also Government Order No:HD 1 PCB 2011, Bangalore, dated 19.9.2013, a sum of Rs.3,00,000/- by way of compensation to victim is awarded. The same shall be made over to the victim by the State Legal 64 Spl.C.C.359/17 Services Authority, (S.L.S.A). Copy of this judgment be sent to the Member Secretary, S.L.S.A forthwith for information and compliance.
Bail bond of the accused stands cancelled.
Free copy of this Judgment to be supplied to the accused.
Office to keep typed version of answer given by accused to question No.71 while recording his 313 statement along with handwritten sheet recorded by this court.
(M.LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
65 Spl.C.C.359/17 Government of Karnataka FORM No.34 Warrant of Commitment on a sentence of imprisonment Or fine if passed by a Magistrate (See Section 248 and 255) To, The Officer incharge of the Jail at Bangalore. Whereas on the 15th day of February, 2018 (Name of Prisoner) Christopher Jaswanth Raj @ Christopher, S/o Jayaraj Bernard, Aged about 32 years, (the 1st ,2nd ,3rd as the case may be). R/at No.3134, 6th 'C' Main, 13th Cross, Indiranagar, HAL II Stage, Bangalore 560 038, prisoner in Case Spl.C.C.No.359/2017 (of the calendar for 2018), is convicted before me (name and official designation) Smt. M.Latha Kumari, LIII Addl.City Civil Court, Bangalore for the offences of (mention the offence or offences concisely) under Section 376 IPC r/w Section 5(l) of Protection of Children from Sexual Offences Act 2012 and Section 506 of I.P.C (or Section of the Indian Penal Code) or of.........................................Act.......................), and is sentenced to (state the punishment fully and distinctly) P.T.O. This is to authorize and require you to receive the said (Prisoner's name) Christopher Jaswanth Raj @ Christopher, S/o Jayaraj Bernard, into your custody in 66 Spl.C.C.359/17 the said jail, together with this warrant, and thereby carry the aforesaid sentence into execution according to law.
Dated, this 15th day of February, 2018.
(M. LATHA KUMARI) LIII Addl.City Civil & Session Judge, Bangalore.
ORDER Acting under Section 235(2) of Cr.P.C. accused is hereby convicted with a sentence of imprisonment for life for the offence under Section 376 of I.P.C r/w Section 5(l) of Protection of Children from Sexual Offences Act 2012 and shall also be liable to pay a fine of Rs.1,00,000/- and no separate punishment need be imposed on the accused for other offence i.e., Section 506 of IPC for which he is convicted.
Relying upon the provisions of Rule 7(2) and Rule 7(4) of POCSO Act, considering the gravity of the offence and the severity of the mental and physical harm suffered by the child and also Government Order No:HD 1 PCB 2011, Bangalore, dated 19.9.2013, a sum of Rs.3,00,000/- by way of compensation to victim is awarded. The same shall be made over to the victim by the State Legal Services Authority, (S.L.S.A). Copy of 67 Spl.C.C.359/17 this judgment be sent to the Member Secretary, S.L.S.A forthwith for information and compliance.
Bail bond of the accused stands
cancelled.
Free copy of this Judgment to be
supplied to the accused.
(M.LATHA KUMARI)
LIII Addl.City Civil & Sessions Judge, Bangalore.