Bangalore District Court
The State Of Karnataka vs No.1 Michel @ Mike on 28 July, 2018
IN THE COURT OF THE L ADDITIONAL CITY CIVIL &
SESSIONS JUDGE, BENGALURU
Dated this the 28th Day of July 2018
- : PRESENT: -
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
BENGALURU
SPECIAL C.C. No. 153/2016
COMPLAINANT The State of Karnataka,
By Wilson Garden Police station,
Bengaluru
Special Public Prosecutor-Bangalore
/ VERSUS /
ACCUSED No.1 Michel @ Mike
S/o. Velayudan, 22 years
ACCUSED No.2 Muniyamma,
W/o. Velayudan, 48 years,
Both accused are residing at
No.137, In front of Naryanapura Mosque
7th Cross, Wilson Garden,
Bengaluru
Sri.M.C.P.-Advocate
1 Date of commission of offence 06-01-2016
2 Date of report of occurrence 18-01-2016
3 Date of arrest of Accused No.1 22-01-2016
Date of release of Accused No.1 06-09-2016
Period undergone in custody 14 days &
by Accused No.1 7 months
2 Spl.C.C.No.153/2016
3 Date of arrest of Accused No.2 22-01-2016
Date of release of Accused No.2 29-01-2016
Period undergone in custody 07 days
by Accused No.2
4 Date of commencement of evidence 03-12-2016
5 Date of closing of evidence 01-03-2018
6 Name of the complainant Joseph
7 Offences complained of Sec.366, 376, 109
r/w. 34-IPC &
Sec. 3 & 4-POCSO
Act
8 Opinion of the Judge Accused No.1 and 2
are convicted
9 Order of Sentence As per the final
order
JUDGMENT
This charge sheet filed by Police Inspector, Wilson Garden Police Station-Bengaluru, against accused No.1 and 2 for the offences punishable under Section 366, 376, 109 of I.P.C., Section 4 and 6 of POCSO Act, 2012.
2. Since it is a case of kidnap and rape of minor girl, as such the name of the victim girl is no where shown in the course of judgment as mandated under Section 227(A) of Cr.P.C. However her name is referred to as 'victim girl' wherever her name is necessary.
3 Spl.C.C.No.153/2016
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
The accused No.1 and 2 with common intention in order to marry the victim girl by the accused No.1, on 06-01-2016 at about 09.00 a.m., within the jurisdiction of Wilson Garden Police Station, kidnapped her in front of her house bearing No.59/A, 12th Cross, Narayanapura, taken her to Tukawadi Village-Chengum Taluk, Thriruvannamallai District of Tamil Nadu, kept in the house of Cw.7-Chennamma, and also again kept her in the house of Cw.6-
Ramaraju at Malawadi Village from 07-01-2016 to 20-01-2016 and the accused No.1 continuously raped the victim girl knowing fully well that she was minor. The accused No.2 came to that village and gave money to accused No.1, encouraged him to do the said act. Thereafter, after coming to know the police searching the accused No.1, accused No.2 and the victim girl, brought her to Bengaluru and left her near her house. On the basis of complaint lodged by the complainant-the father of the victim, the police registered the case against the accused No.1 and 2 for the offence punishable under Section 363 of IPC.
4 Spl.C.C.No.153/2016
4. The Investigating Officer has investigated the same and filed charge sheet against accused No.1 and 2 for the offences punishable under Section 366, 376, 109 of I.P.C., Section 4 and 6 of POCSO Act, 2012. Thereafter, after filing the charge sheet, the summons was issued to the accused No.1 and 2, they were appeared before the Court and the copy of charge sheet furnished to them as contemplated under Section 207 of Cr.P.C. Thereafter the learned advocate for accused submitted that there is no argument before framing charge and requested to frame charge. On perusal of charge sheet, the learned predecessor in office framed charge on 19-09-2016 for the offences punishable under Section 366, 376, 109 read with section 34 of I.P.C, Section 3 and 4 of POCSO Act, 2012. The contents of charge read over and explained in Kannada to the accused No.1 and 2, they pleaded not guilty and submit crime to be tried. Thereafter the case against accused No.1 and 2 set down for prosecution evidence.
5. The prosecution in order to establish the guilt of the accused has examined 11 witnesses as Pw.1 to Pw.11, got marked as many as 21 documents as Ex.P1 to Ex.P21, nine material objects as MO1 to MO9 and closed his side evidence. As could be 5 Spl.C.C.No.153/2016 seen from the evidence of Pw.1 to Pw.11, they have supported the case of prosecution to some extent. In view of incriminating evidence appeared against accused No.1 and 2, they were examined under Section 313 of Cr.P.C., by recording their statement. The accused No.1 and 2 denied the alleged incriminating evidence appeared against them as false. Earlier to that the accused No.1 and 2 had complied the provisions of Section 437-A of Cr.P.C., The accused No.1 and 2 produced the evidence of Dw.1 as their defense evidence and closed their side evidence. Thereafter arguments heard from both the sides. The learned advocate for accused No.1 and 2 relied on the decisions reported in AIR 1970 SC Page 1020, 1972 Crl.L.J Page 824, 1979 Crl.L.J. 867, AIR 1995 SC 2169, 1995 Crl.L.J. 614, 1995 Crl.L.J. 3387, 1996 Crl.L.J.1829, 1997 Crl.L.J. 2641, 2001 Crl.L.J. 1953, 2001 Crl.L.J. 3812, 2002 Crl.L.J. 3346, 2002 Crl.L.J. 752, 2003 Crl.L.J. 1891, 2003 AIR SCW 4779, 2005 Crl.L.J. 2457, 2006 Crl.L.J. 2034 and 2014 Crl.L.J. 4286 and the matter is set down for judgment.
6. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that arise for my consideration are as under:-
6 Spl.C.C.No.153/2016
1. DgÉÆæ-1 ªÀÄvÀÄÛ DgÉÆæ-2 ¸ÀªÀiÁ£À GzÉÃÝ ±À¢AzÀ ¢£ÁAPÀB 06.01.2016 gÀAzÀÄ ¨É½UÉÎ 9.00 UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è «®ì£ïUÁqÀð£ï ¥ÉÇðøïoÁuÉAiÀÄ ¸ÀgºÀ ¢ À £ Ý À £ÁgÁAiÀÄt¥ÀÅgÀ, 12£Éà PÁæ¸ï, ªÀÄ£É £ÀA.59/J gÀ ªÀģɬÄAzÀ ¸ÁQë-1 gÀªg À À ªÀÄUÀ¼ÁzÀ ¸ÁQë-2 gÀªg À £À ÀÄß ªÀÄzÀĪÉAiÀiÁUÉÆÃt JAzÀÄ ºÉý ¥ÀŸÀ¯Á¬Ä¹ C¥Àgº À t À ªÀiÁrPÉÆAqÀÄ ºÉÆÃV ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ 366 ¸Àºª À ÁZÀPÀ 34 gÀrAiÀÄ°è PÀ®A.323gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
2. DgÉÆæ-1 ªÀÄvÀÄÛ DgÉÆæ-2 ¸ÀªÀiÁ£À GzÉÃÝ ±À¢AzÀ ªÉÄÃ¯É ºÉýzÀ ¢£ÁAPÀ, ¸ÀªÀÄAiÀÄ ºÁUÀÆ ¸ÀAzÀ¨ð Às zÀ°è ¸ÁQë-2 gÀªg À £ À ÀÄß ªÀÄzÀĪÉAiÀiÁUÀĪÀ GzÉÃÝ ±À¢AzÀ DPÉAiÀÄ£ÀÄß C¥Àºg À t À ªÀiÁrPÉÆAqÀÄ vÀ«Ä¼ÀÄ£Ár£À wgÀĪÀuÁÚªÀįÉÊ f¯ÉAè iÀÄ ZÀAUÀA vÁ®ÆèPÀÄ, vÀÄÁPÀªÁr JA§ UÁæªÀÄzÀ°£ è À ¸ÁQë-7 gÀªg À À ªÀÄ£ÉAiÀÄ°è ¢£ÁAPÀB07-01-2016 jAzÀ ¢£ÁAPÀB20-01-2016 gÀªg À UÉ É Ej¹PÉÆAqÀÄ DPÉ C¥Áæ¥ÀÛ ªÀAiÀĹì£Àª¼ À ÀÄ JAzÀÄ w½¢zÀg Ý Æ À ¸ÀºÀ DPÉAiÀÄ ªÉÄÃ¯É ¤gÀAvÀgª À ÁV CvÁåZÁgÀª¸ É V À ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ 376 ¸ÀºªÀ ÁZÀPÀ 34 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £À ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
3. DgÉÆæ-1 ªÀÄvÀÄÛ DgÉÆæ-2 ¸ÀªÀiÁ£À GzÉÃÝ ±À¢AzÀ ªÉÄÃ¯É ºÉýzÀ ¢£ÁAPÀ, ¸ÀªÀÄAiÀÄ ºÁUÀÆ ¸ÀAzÀ¨ð Às zÀ°è ¸ÁQë-2 gÀªg À À£ÀÄß 2£Éà DgÉÆæAiÀÄ zÀĵÀàÉæÃgÀuA É iÀÄ ªÉÄÃgÉUÉ DPÉAiÀÄ ªÀģɬÄAzÀ ªÀÄzÀĪÉAiÀiÁUÀĪÀ GzÉÃÝ ±À¢AzÀ C¥Àºg À t À ªÀiÁrPÉÆAqÀÄ ºÉÆÃzÀ PÁgÀt ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 109 ¸Àºª À ÁZÀPÀ 34 gÀrAiÀÄ°è²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s À£ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀªÀ ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
4. DgÉÆæ-1 ªÀÄvÀÄÛ DgÉÆæ-2 ¸ÀªÀiÁ£À GzÉÃÝ ±À¢AzÀ ªÉÄÃ¯É ºÉýzÀ ¢£ÁAPÀ, ¸ÀªÀÄAiÀÄ ºÁUÀÆ ¸ÀAzÀ¨ð Às zÀ°è ¸ÁQë-2 gÀªg À £ À ÀÄß C¥Àºg À tÀ ªÀiÁrPÉÆAqÀÄ ºÉÆÃV ¢£ÁAPÀB07.01.2016 jAzÀ ¢£ÁAPÀB20.01.2016 gÀªg À U É É ¤ªÀÄä §½ Ej¹PÉÆAqÀÄ DPÉ C¥Áæ¥ÀÛ ªÀAiÀĹì£Àª¼ À ÁVzÀg Ý ÀÆ DPÉAiÀÄ ªÉÄÃ¯É ¤gÀAvÀªÁV ¯ÉÊAVPÀzËdð£Àå J¸ÀV CvÁåZÁgÀ ªÀiÁrzÀ PÁgÀt PÀ®A 3 ªÀÄvÀÄÛ 4 ¥ÉÇÃPÉÆìPÁ¬ÄzÉAiÀÄr ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀªÀ ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
5. AiÀiÁªÀ DzÉñÀ?
7. My findings on the above points are as under:-
Point No.1: In the Affirmative.
Point No.2: In the Affirmative.
Point No.3: In the Affirmative.7 Spl.C.C.No.153/2016
Point No.4: In the Affirmative.
Point No.5: As per the final orders for following:
REASONS
8. Point No.1 to 4:- As these points are inter-related, hence I have taken up together for my consideration in order to avoid repetition of reasons.
9. Perused the entire record, charge sheet, evidence produced both at oral and documentary and arguments canvassed by the learned advocate for the accused and the learned Special Public Prosecutor and also relied on decisions by the learned advocate for accused No.1 and 2.
10. In order to prove the alleged offences against the accused No.1 and 2, the prosecution examined 11 witnesses as Pw.1 to Pw.11, got marked as many as 21 documents as Ex.P1 to Ex.P21, nine material objects as MO1 to MO9 and with regard to the defense side, the accused No.1 and 2 examined-Dw.1. As per the prosecution case, Pw.1 is the complainant, Pw.2 is the mother of victim and wife of complainant, Pw.3 is the victim girl, Pw.5 is the doctor, Pw.4, Pw.7, Pw.9 to Pw.11 are the police personnel and 8 Spl.C.C.No.153/2016 Investigation Officer, Pw.6 is the Vice Principal, Pw.8 is the Panch Mahazar witness. Hence, this Court shall proceed to see whether the evidence of said witnesses is sufficient for establishing the alleged offences against accused No.1 and 2.
11. In order to establish the alleged offences against accused No.1 and 2, the prosecution is required to prove that the accused No.1 and 2 with common intention in order to marry the victim girl by the accused No.1, on 06-01-2016 at about 09.00 a.m., within the jurisdiction of Wilson Garden Police Station, kidnapped her in front of her house bearing No.59/A, 12th Cross, Narayanapura, taken her to Tukawadi Village-Chengum Taluk, Thriruvannamallai District of Tamil Nadu, kept in the house of Cw.7-Chennamma, and also again kept her in the house of Cw.6- Ramaraju at Malawadi Village from 07-01-2016 to 20-01-2016 and the accused No.1 continuously raped the victim girl knowing fully well that she was minor. The accused No.2 came to that village and gave money to accused No.1, encouraged him to do the said act and thereby committed offences punishable under Section 366, 376, 109 read with section 34 of I.P.C., Section 3 and 4 of POCSO Act, 2012. Hence this Court shall proceed to see whether the 9 Spl.C.C.No.153/2016 prosecution has succeeded in establishing all the above said ingredients of the alleged offences against the accused beyond all reasonable doubt.
12. Before venturing into scan the available material evidence on record, it is necessary to mention the very definition of offences under Section 366, 376, 109 read with section 34 of I.P.C, Section 3 and 4 of POCSO Act, 2012.
Section 366 of I.P. C defines that:
"Kidnapping, abducting or inducing woman to compel her marriage, etc-Whoever, kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority to any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall also be punishable as foresaid."
Section 376 of IPC defines that:
Punishment for rape-(1) Whoever, except in the cases provided for by sub-section(2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the woman raped is his own wife and is not under twelve years of age, in which case, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:10 Spl.C.C.No.153/2016
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.
(2) Whoever,-
(a) being a Police Officer commits rape-
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a Police Officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place or custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.11 Spl.C.C.No.153/2016
Section 109 of IPC defines that:
Punishment of abetment, if the act abetted is committed in consequence and where no express provision is made for its punishment.-Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.
Section 3 of POCSO Act defines that:
Penetrative Sexual Assault: A person is said to commit Penetrative sexual assault if
(a) he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person or'
(b) He inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of the child or makes the child to do so with him or any other person; or
(c) He manipulates any part of the body of the child so as to cause penetration into the vagina, urethra, anus or any part of body of the child or makes th child to do so with him or any other person; or
(d) He applies his mouth to the penis, vagina, anus urethra of the child or makes the child to do so to such person or any other person.
Section 4 of POCSO Act defines that:
Punishment for penetrative Sexual Assault: Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine.
With these observations, now left with available material evidence produced by the prosecution to consider whether the prosecution proved the alleged offences against accused No.1 and 2 12 Spl.C.C.No.153/2016 beyond all reasonable doubt or not or it probablise the defense of the accused No.1 and 2.
13. It is the defense of accused No.1 and 2 that as on the date of alleged incident the victim was not minor, but she was major. As such it is just and proper to see whether the victim girl was minor or major as on the date of alleged incident and the prosecution produced supporting documents to believe the same has to be looked into.
14. By going through the evidence of Pw.1-the complainant, father of victim girl and husband of Pw.2, he has deposed that on the date of incident, the victim gilr was studying at 10th Standard in Netaji School and her date of birth was 10-01-2000. In the cross-examination the accused No.1 and 2 tested his veracity and elicited that he is doing Carpentry work and he is residing at Wilson Garden in his own house since from 45 years. His wife- Mary-the mother of victim, earlier to she marrying him, married her mother's brother and she got a female baby through him and she has deserted him, but he doesn't know whether she has taken divorce from him or not. At the same time he loved Mary very 13 Spl.C.C.No.153/2016 much and their marriage was taken place. Through their wed-lock they got a son by name Thomas, who was born on 11-08-1999 and he is aged 18 years, he is residing along with his wife. After birth of Thomas, the victim girl was born, but he cannot remember after how many years of birth of Thomas the victim girl was born, but the date of birth of victim girl is available, she was born in a hospital at Hosur Road. If this piece of evidence is taken into consideration, as on the date of evidence i.e., 03-03-2017 if his son's age as 18 years is taken into consideration, since the accused No.1 and 2 are not confident about the said age, as on the date of incident his age was 17 years and the victim girl being younger sister to him, definitely her age was 15 or 16 years. With this observation, now left with the evidence of Pw.2-Mary the wife of complainant and mother of victim girl
15. Pw.2 deposed that as on the date of incident, the victim girl was studying in 10th standard and her age was 15 years. In the cross-examination, the accused No.1 and 2 tested her veracity and also elicited that earlier she married her mother's brother, through the said wed-lock she got a female baby and she is married. After that she married the complainant and through their 14 Spl.C.C.No.153/2016 wed-lock she got two children i.e., a son and the victim girl is her younger child and she was born in a hospital situated at Hosur Road. The above said evidence also clinches the issue unequivocally points out that as on the date of alleged incident the victim was minor. Now left with the material evidence of Pw.6- Sujatha-Vice Principal.
16. Pw.6 deposed that the Wilson Garden police sent a requisition to give school certificate of victim girl to know about the date of birth of victim girl. As per the request of the police and based on the documents available in the school, she has given Ex.P7-birth certificate along with letter as per Ex.P8 and her signatures are Ex.P7(a) and Ex.P8(a). In the cross-examination the accused No.1 and 2 tested her veracity by eliciting some commission and omission, except denial suggestion, nothing has been elicited favourable to the defense taken by the accused. On perusal of Ex.P7 and Ex.P8, it discloses that Ex.P7 is the birth certificate of victim girl who was born 10-01-2000 at Vinayaka Hospital-Channakeshava Nagar. Ex.P8 is the letter written by Principal giving the details of victim girl, wherein her date of birth is mentioned as 10-01-2001. If the said document is taken into 15 Spl.C.C.No.153/2016 consideration, as on the date of alleged incident she was aged about 15 years. Here the prosecution not only produced oral testimony of Pw.1 to Pw.3-the complainant, his wife and the victim girl, but also supporting authenticated documentary evidence coupled with oral evidence of Pw.6 to prove as on the date of the incident the victim girl was minor. Having taken defense by the accused No.1 and 2, they have not produced any corroborative and cogent supporting document with evidence to establish as on the date of the incident the victim was not minor and she was major.
17. At this stage this Court feels to observe that though the learned counsel for accused persons relied on the decisions reported in AIR 1970 SC Page 1020-Head Note-A, 1995 Crl.L.J. 3387-Head Note-A, 2003 Crl.L.J. 1891-Head Note-A, 2005 Crl.L.J. 2457 and 2006 Crl.L.J. 2034. The learned advocate of accused No.1 and 2 relied on above said decisions with regard to age of victim girl not proved and the ratio of principle is applicable to the present case on hand. Here on perusal of evidence of Pw.1 to Pw.3 coupled with school documents produced along with the evidence of Head Mistress of the school. With due respect to the learned advocate for accused No.1 and 2, the facts and circumstances of 16 Spl.C.C.No.153/2016 the above case decisions and the facts and circumstances of the case on hand are different one and the ratio of principle of the said decisions is not applicable to the present case on hand. With these, now left with the available material evidence on record to know whether the accused persons committed the offences or not.
18. Before venturing into scan, the available materials on record, it is necessary to consider the defense taken by the accused No.1 and 2 in respect of delay in lodging complaint. Perused Ex.P1-complaint lodged by the complainant-Pw.1 on 18-01-2016 at about 05.00 p.m., stating that the victim girl was missing on 06- 01-2016, he has searched every where including with relatives and friends, but she was not traced, as such he has lodged complaint belatedly. Again Pw.1 given restatement as per Ex.P2 on 21-01- 2016 stating that his daughter-the victim girl return to house, on enquiry with her she has stated that on 06-01-2016 the accused No.1 inducing her taken her to a village near Thiruvannamalai at Tamil Nadu, kept her in a house, raped on her several times on the instigation of his mother-the accused No.2 herein and after coming to know about the search of accused No.1 and the victim, the accused No.2 came there, brought them to Bengaluru and left her 17 Spl.C.C.No.153/2016 near her house.
19. Coupled with this piece of Ex.P1 and Ex.P2, on perusal of evidence of Pw.1, he has also deposed that on 06-01-2016 his daughter went to work in garments and his wife not accompanied her, she left her house at about 08.30 a.m., but she didn't return in the evening. He has searched every where, but she didn't traced, he has not given complaint on that day. After that he came to know about the fact that near K.S.R.T.C. quarters, Wilson Garden, the accused No.1 and 2 and the sister of accused No.1 kidnapped the victim girl, taken her to Koramangala and then to Thiruvannamalai of Tamil Nadu and said fact came to his knowledge on 18-01-2016, as such he has lodged complaint on the very same day as per Ex.P1 and he came to know the facts and circumstances as per Ex.P2 through his daughter.
20. The accused No.1 and 2 tested the veracity of evidence of this witness in respect of delay in lodging complaint. It is the elicitation from this witness that his daughter left on 06-01-2016 and the complaint was lodged on 18-01-2016. It is the suggestion that being the parents of the victim, he has to lodge the complaint 18 Spl.C.C.No.153/2016 immediately, but he has not lodged complaint immediately, for that it is his answer that he has made efforts to trace out on all those 12 days. Initially he was unable to know the whereabouts of the victim girl, after that he came to know about the accused persons and the sister of the accused No.1 kidnapped his daughter and on the very same day, he has lodged complaint. Except that nothing has been taken as defense about the said complaint causing delay with an intention to harass the accused persons and even the complainant having knowledge of the incident earlier to that the accused persons have taken the victim girl along with them, but he has not lodged any complaint. Non-taking specific defense about delay in lodging complaint by the accused persons, it is not safe to accept the said defense at this stage. Viewing from the available materials on record, this Court has no impediment in accepting that the prosecution has produced sufficient reasons about causing delay in lodging complaint and it is to be accepted for consideration.
21. Now left with the available materials evidence to know whether the prosecution establishes initial burden of proving alleged offences against accused persons since enactment of POCSO Act is victim oriented and as per Section 29, the 19 Spl.C.C.No.153/2016 presumption is very clear whatever stated by the victim girl, unless and until rebutted, the very presumption is to be accepted against accused for consideration.
22. By going through the evidence of Pw.3-the victim girl, she has deposed the admitted facts between the parties and also deposed the accused persons are residing near by her house, but she doesn't know what work the accused persons are doing. Initially she has stated that she doesn't know the accused persons, but again she has deposed that the accused No.2 came near her mother and requested to celebrate her marriage with the accused No.1, at that time her mother was working in Shiva Kumar's factory, at Sudhama Nagar and the said work was garments work. She used to accompany with her mother to the garments, but on 06-01-2016 her mother has not accompanied with her, she alone went to the work. In the morning when she was on the way to work, at that time, the sister of accused No.1 viz., Bharathi called upon her and told she has to marry her younger brother-the accused No.1 herein, for that she has refused her request. Further, she has told to this witness to run away along with accused No.1 and if anything happens and even the police come, she is going to 20 Spl.C.C.No.153/2016 look after the same. Thereafter, she has taken this witness to the house of accused No.2, wherein the accused No.2 demanded her to marry the accused No.1, but she refused the same, after that they have given coffee to her, after taking coffee, she doesn't know what had happened on her.
23. Pw.3 further deposed that the accused No.1 and 2 taken her to Chengum village of Tamil Nadu, left her at the house of grand mother of accused No.1 along with him and the accused No.2 return to Bengaluru, nearly one week they stayed in the grandmother's house of accused No.1, thereafter the neighbours of grand mother of accused No.1 beaten her, as a result the accused No.1 taken her to Katukoli village, where they stayed for 2-3 days. After that the accused No.1 taken her to Malawadi of Thiruvannamalai, kept her there for one night, when she refused to stay there and demanded the accused No.1 to take back her to her home town, on the next day the accused No.1 brought her to Bengaluru and the sister of accused No.1-Bharathi and Panja taken her to the police station, where her parents also came to the said station, thereafter the police sent her along with her parents. She has given statement as per Ex.P3 and her signature is 21 Spl.C.C.No.153/2016 Ex.P3(a), at that time this witness refused to accompany with her mother to go to home, since while bringing her to Bengaluru, the accused persons threatened and instructed her that she has to refuse to accompany with her parents after coming to Bengaluru, hence at that time she has refused to accompany with her mother to the house, when she refused to accompany with her parents to the house, the police taken her to the hostel i.e., remand home, after that her mother brought her to home.
24. Pw.3 further deposed that she has told each and every word to her mother about the demand and act of the accused persons. Thereafter the police taken her to the places where the accused persons hidden her and also conducted mahazar as per Ex.P4 and her signature is Ex.P4(a). She was produced before the Judge, where she has given statement as per Ex.P5 and her signature is Ex.P5(a). Further she has stated that at Chengum the accused raped on her twice and at Malawadi also he has raped on her once. He had given artificial leg chain, ear-ring and neck chain at Malawadi. The accused No.1 by consuming Ganja, used to ill- treat her. She has not stated the above said facts before the Magistrate also.
22 Spl.C.C.No.153/2016
25. Pw.3 further deposed that in order to avoid unbearable ill-treatment of the accused No.1 on 02-05-2016, she has married one Appu of K.S. Garden in front of Annamma Temple, the said fact was not told to her parents, at that time the age of Appu was 27 years and he was doing driving work of Tata Ace vehicle, he has no parents and now she is residing at Thiruvannamalai of Tamil Nadu in a rented house and she begotten a child on 16-09-2016, since from 10 months she is residing along with Appu. When she was studying at 9th standard, the said Appu used to come near her house in Tata Ace for unloading, from that time onwards both Appu and herself loving with each other, thereafter said Appu came and started to reside in a rented house in front of her house, both decided to tell the fact of their love with their parents, but the same was not told to them. One Murthy had taken her to jail to talk with the accused No.1, where she talked with the accused No.1 for 10 minutes, due to threat of accused persons she went there.
26. This witness deposed partly hostile and the prosecution treated her as hostile witness and suggested that she has told before the Magistrate that the accused was her friend and the accused demanded her to marry the accused No.1, the accused 23 Spl.C.C.No.153/2016 No.2 also paid money to accused No.1 for their expenses at Tamil Nadu, they were at Tamil Nadu for one week. He has also raped her twice by threatening, she was also kept for three days at Katukoli, on 21-06-2016 the sisters of accused No.1 brought her to the police station, due to fear she has not gone to her house. The accused No.1 with an intention to marry her, had taken her by enticing her. The accused No.2 instigated him for that act. With these chief examination, now left with the available material documentary evidence to know whether the contents of said document corroborates with the evidence of this witness.
27. On perusal of Ex.P3-the statement of victim recorded by police on 21-01-2016 and the same was marked through her, wherein she has stated about her educational qualification, reasons for not going to school, going along with her mother to the garments. The accused persons are residents of the same area, the accused No.2 came to her house and asked to give her in marriage to her son-the accused No.1, for that her parents told that they will decide after attaining of majority by their daughter and will decide about the marriage. Thereafter the accused No.1 started to talk with her and used to accompany her to the Church and told that 24 Spl.C.C.No.153/2016 he was having an intention to marry her. Further she has stated that on 06-01-2016 due to ill health, her mother not gone to work in garments, she alone went to work. When she left the house at that time the accused No.1 was standing near by the shop of her house at about 09.00 a.m., enticed her, taken her to his house, where his mother-the accused No.2 was there and told her inspite of request made by her, parents of this witness are not willing for marriage, hence advised them to go to Thiruvannamalai, stay there for some time and after that her parents are going to give consent for the marriage sent both of them. The accused No.1 took her in a bus to Thiruvannamalai, where they stayed in a village near by Thiruvannamalai and the said house belongs to grand mother of accused No.1. On that night the accused by enticing her committed rape on her, he kept her in that house for 2-3 days, every day he used to commit rape on her, after 4-5 days the accused No.1 took her to a temple near Thiruvannamalai, tied turmeric thread to her neck. She had demanded accused No.1 to give phone to talk with her parents, but he refused for the same and he also restrained her to go out of the house.
28. Pw.3 further in her statement stated that after 8 days of 25 Spl.C.C.No.153/2016 the said incident the accused No.2 came there, before her she has expressed that she wants to talk with her parents and also requested her to take her back by crying, at that time the accused No.2 told her to stay with her son for some more days and thereafter her parents are going to give consent for her marriage with the accused No.1 and also given money to accused No.1 and return from that place. Thereafter, the accused No.1 for some days took her to places in and around Thiruvannamalai and used to commit rape on her. As she was crying every day by requesting accused No.1, some of the residents of the said village came and scolded accused No.1 and also advised him to take back to her parents house. On 20-01-2016 the accused No.1 and 2 brought her back to Bengaluru, left her near house and told her not to inform about the incident to any body and after few days he is going to marry her.
29. Here on perusal statement given by victim as Ex.P3 and the evidence given by her in her chief examination, the same corroborates with each other. Now left with the contents of Ex.P5- the statement given by the victim before Magistrate as per section 164 of Cr.P.C., wherein also she has stated on the date of the 26 Spl.C.C.No.153/2016 alleged incident she has not accompanied with her mother to work, she alone went to work, at that time the sister of accused No.1 took her and told that her to marry her brother and they are going to look after her well, for that she refused the same, thereafter she took her to her mother's house, there also her mother demanded her to marry her son-the accused No.1 and whatever consequences takes place, they are going to look after the same, thereafter they sent her along with accused No.1 to Chengum of Tamil Nadu, where the grand mother of accused No.1 was staying, at that time the accused No.2 also accompanied them and she left them at Chengum and return to Bengaluru, while leaving that place, she has given money to accused No.1 for expenses.
30. Pw.3 further stated in the house of grand mother of accused No.1, she was kept nearly for one week, after two days the accused No.1 inspite of refusal by her he has committed rape on her, on 4th day also by threatening he has raped on her, on 11th or 12th day again the accused No.2 came there, by that time the neighbours made galata on the grand mother of accused No.1, as such they have taken her to Katukoli and kept her in a house, thereafter she was taken to Malawadi at Thiruvannamalai and kept 27 Spl.C.C.No.153/2016 her there for some time, they stayed there for three days. Thereafter on 19-01-2016 the sisters of accused No.1 came and taken them to Chengum and got celebrated her marriage with the accused No.1 and brought her to police station on 20-01-2016 and police sent her to house. Thereafter on 21-06-2016 she again brought to police station and stated the facts and circumstances what are all happened on her before the police, the police sent her to the hospital for medical check up.
31. No doubt it is true that even before Magistrate also the victim girl stated about kidnap and rape done by the accused No.1 on her in Chengum, Katukoli and Malawadi Villages, the same also corroborates with the statement given by her before the police as per Ex.P3 and the evidence given by her as Pw.3 before this Court. With these corroborated evidence, now left with the available material evidence produced by the accused persons whether they have rebutted the evidence of victim girl or not.
32. By going through the cross-examination of Pw.3, the accused persons elicited some commission and omission and also elicited the admitted fact in respect of relationship of the 28 Spl.C.C.No.153/2016 complainant and her studies, but her definite answer is that the accused No.1 is the route cause for her leaving Netaji school, where she was studying 10th standard. She has also admitted in respect of Principals of said three schools called upon her parents and given transfer certificates. Here, in order to prove the conduct of victim girl, no doubt it is true the accused No.1 and 2 cross- examined her in this regard, but at the same time it is not the ground to believe the accused No.1 and 2 are innocent of the alleged offences caused against the victim girl. Further the accused persons not summoned the teachers-Salma and Rama Mani to prove the alleged conduct of the victim girl while she was studying. As such, it is not safe to accept whatever the defense taken by the accused No.1 and 2 with regard her studies and her conduct during her student life.
33. Here it is relevant to note that the victim girl has admitted having a friend by name-Shilpa. According to accused No.1 and 2 the victim girl herself introduced said Shilpa to the accused No.1, for that she has denied the same. If this piece of suggestion is taken into consideration, it is quite clear that the accused No.1 is not a stranger to the victim girl, on the other hand, 29 Spl.C.C.No.153/2016 she knew the accused No.1 as per the statement given by her and as stated in her chief examination. Further it is her evidence that the accused No.1 himself voluntarily became friend of said Shilpa and not through her. She has also admitted that said Shilpa was loving the accused No.1, at the same time she has shown her ignorance about the same not known to accused No.1. Here whatever the elicitation made through this witness by the accused No.1 and 2, it is very clear the accused No.1 and 2 are not strangers to the victim and her family members.
34. Again the accused No.1 and 2 taken contention that one boy by name Tony was residing in the same area and he is her brother's friend, he has put Tattoos on his body. According to accused No.1 and 2 as the victim girl and said Tony loved, he has put her name by Tattoo on his body, but she shown her ignorance stating that she doesn't know about the said fact. Further it is the defense of accused No.1 and 2 that she loved Tony and supported, but her evidence is that she loved Appu and not Tony. Here it is relevant to note that after the incident due to harassment of accused No.1 she has married said Appu and now she is living along with Appu and having a child, as such whatever defense 30 Spl.C.C.No.153/2016 taken by the accused No.1 and 2 with regard to the love affair between Appu and victim girl is not acceptable as a defense of the accused No.1 and 2 with regard to the alleged incident. Further it is the defense of accused No.1 and 2 that when her parents started to search a boy to perform her marriage, one Keralian boy parents approached her parents, at that time she contacted the accused No.1 stating that she is not interested to marry the said Keralian boy and sought his help. No doubt it is true she has admitted the said fact. If this fact is also taken into consideration, this Court has no impediment to accept the accused No.1 and 2 are known persons to victim and her family members and not strangers as per the defense of accused No.1 and 2.
35. The accused No.1 and 2 further taken defense about non-giving statement in respect of sister of accused No.1 taking her to the house of accused persons, given a cup of coffee and after consuming the same she fell unconscious and regained consciousness near Krishnagiri. Here it is relevant to note that it is not the defense of the accused No.1 and 2 that what ever the places shown by the victim to the police stating that the accused No.1 and 2 kept her in that places and the accused No.1 raped on her at that 31 Spl.C.C.No.153/2016 places and all the places are not known by accused No.1. On the other hand the accused No.1 and 2 silent about the places shown by the victim girl in respect of the incident. Further it is not the defense of the accused No.1 and 2 that the places shown by the victim to the police are the places very much known by the victim and her family members and they are originally residing at that places, as such she has shown that places easily to the police and the accused No.1 and 2 are not knowing those places and they are strangers to those places. When such being the case, it is not safe to disbelieve whatever the evidence given by the victim in respect of accused No.1 raped on her in the said places.
36. Further the accused No.1 and 2 elicited that:
"DgÉÆæAiÀÄ eÉÆvÉ D ªÀÄÆgÀÄ HgÀÄUÀ¼° À è EzÁÝUÀ £Á£ÀÄ DvÀ ªÀÄ®VzÁÝUÀ vÀ¦à¹PÉƼÀÄîªÀ ¥ÀæAiÀÄvÀß ªÀiÁqÀ°®è, PÁgÀt £À£ßÀ §½ ºÀt EgÀ°®è. DgÉÆæAiÀÄ CfÓAiÀÄ ªÀÄ£ÉAiÀÄ°èzÁÝUÀ CPÀÌ¥ÀPÀÌzÀªg À À ¸ÀºÁAiÀĪÀ£ÄÀ ß £Á£ÀÄ PÉüÀ°®è ªÀÄvÀÄÛ ¸ÀºÁAiÀÄ PÉüÀ®Ä vÉÆAzÀgÉ EgÀ°®è. §¸ï£À°è £ÀªÄÀ ä eÉÆvÉ JgÀq£ À Éà DgÉÆæ ¸ÀºÀ EzÀg Ý ÀÄ. JgÀq£ À ÃÉ DgÉÆæ £ÀªÀÄä£ÀÄß ZÀAUÀA £À°è ©lÄÖ ºÁUÉà ªÁ¥À¸ÀÄì §AzÀgÀÄ."
She was also elicited that:
"£À£ÀUÉ §¸ï£À°è JZÀj Ñ PÉ DzÁUÀ JµÀÄÖ UÀAmÉ DVvÀÄÛ JAzÀÄ £À£ÀUÉ UÉÆwÛ®.è DUÀ ¸Àé®à PÀv¯ ÀÛ ÁVvÀÄ.Û ¸ÀªÀÄAiÀÄ ¸ÀĪÀiÁgÀÄ 5.00 UÀAmÉ EgÀ§ºÀÄzÀÄ. ZÀAUÀAUÉ 8.30 jAzÀ 9.00 UÀAmÉAiÀÄ M¼ÀUÉ ºÉÆÃzɪÀÅ. D PÁ®PÉÌ £À£ßÀ vÀAzÉ vÁ¬Ä §½ ªÉƨÉÊ¯ï ¥sÉÆãï EvÀÄ.Û £Á£ÀÄ £À£Àß vÀAzÉ vÁ¬Ä UÉ ¥sÉÆÃ£ï ªÀiÁr DgÉÆæ £À£ÀߣÀÄß EAvÀºÀ PÀqÉ ElÄÖPÉÆArzÁÝ£É JAzÀÄ ºÉüÀ°®è. DgÉÆæ £À£ÀߣÀÄß ªÀÄÆgÀÄ HgÀÄUÀ½UÉ ºÉÆÃUÀĪÁUÀ, §¸ï ¸ÁÖ¥ï£À°è ¥ÉǰøÀgÀÄ EzÀg Ý ÀÄ CAzÀgÉ ¸Àj. £Á£ÀÄ ¥ÉǰøÀgÀ ¸ÀºÁAiÀĪÀ£ÀÄß PÉüÀ°®è."32 Spl.C.C.No.153/2016
If the above said evidence is taken into consideration and the victim not made any efforts to escape from the clutches of accused No.1 and 2 knowing fully well the victim was minor at that time, what was duty of accused No.1 and 2 not stated. If at all the accused No.1 and 2 are not having any malafide intention they would have brought her to the house and handed over her to the custody of her parents, but they have not done so, as such it is not safe to accept the defense taken by them as stated supra.
37. Further she was elicited that after coming to Bengaluru, the accused persons taken her to their house, called upon her father-in-law, produced her before the police, by that time she was knowing about lodging of complaint by her parents, in the police station the accused No.2, her daughters and son-in-laws and also father-in-law-Muragesh were present, some talks were taken place and requested not to lodge complaint against the accused for that it is the answer of victim that the accused persons threatened her with dire consequences with regard to her parents, as such she has told the above said statement. Here, it is the defense of accused persons that the said facts and act of accused persons and the victim are recorded in CCTV camera, as such they have not 33 Spl.C.C.No.153/2016 committed any offences, but in order to prove the said facts and circumstances, the accused persons have not taken any steps for production of said CCTV camera footage for bringing their defense. Unless and until produces supporting any corroborative, cogent evidence, it is not safe to accept the defense of accused No.1 and 2 herein.
38. Further, it is the defense of accused persons that the victim herself, her brother and sister-in-law went to jail and talked with accused No.1, but her answer is that one Murthy forced and instructed her to go and talk with the accused No.1 in jail; as such she went to jail and not as voluntarily. After accused No.1 went to jail she went to the house of accused persons and stated that her parents have arranged to marry her to a Keralian boy and requested them to make some help to her, for that it is the suggestion of accused persons that:
"DUÀ DPÉ £ÀªÀÄä fêÀ£ª À £À ÀÄß ºÁ¼ÀÄ ªÀiÁrzÉ, £ÀªÀÄäzÃÉ £ÀÆ vÀ¦® à ¢ è zÀg Ý ÀÆ, ¤Ã£ÀÄ ºÁ¼ÁUÀÄ JAzÀÄ £À£ÀUÉ ±Á¥À ºÁQzÀgÀÄ CAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ C¥ÀÅà J£ÀÄߪª À £ À À£ÀÄß ªÀÄzÀĪÉAiÀiÁUÀ¨ÃÉ PÉAzÀÄ DvÀ££ À ÀÄß gÀPÀëuÉ ªÀiÁqÀ¨ÃÉ PÉAzÀÄ DgÉÆæ £À£ÀߣÀÄß J¯É° è èUÉÆà PÀgzÉ ÀÄPÉÆAqÀÄ ºÉÆÃzÀ JAzÀÄ ¸ÀļÀÄî ºÉüÀÄwÛzÃÉÝ £É CAzÀgÉ ¸ÀjAiÀÄ®è."
39. The very suggestion of accused persons creates doubt that this incident was taken place earlier to the incident or after 34 Spl.C.C.No.153/2016 returning of the accused No.1 from the jail, but no such believable explanation given by the accused persons to believe that they are innocent of the offences alleged against them. She has also deposed that she traveled in a bus, at that time she came to know the route of those places, as such she has shown those places to the police. At Chengum the grand mother of accused signed, but she can't say who has signed at Malawadi. Here in order to prove the said fact the grand mother of accused has not stepped into the witness box. It is the suggestion of accused persons and elicitation that:
"DgÉÆæAiÀÄ CfÓ ªÀÄ£É ²Ãmï ªÀÄ£É DVzÀÄÝ, CPÀÌ¥ÀPÌÀ zÀ°è UÀÄr¸À®Ä ªÀÄ£ÉU¼ À ÀÄ EzÀÄÝ, »A¨sÁUÀz° À è ²Ãmï ªÀÄ£É EzÉ. ªÀÄ®ªÁrAiÀÄ ªÀÄ£É ¸ÀºÀ ²Ãmï ªÀÄ£É. D ªÀÄ£ÉAiÀÄ ¥ÀPÀÌ MAzÀÄ ªÀÄ£É EzÀÄÝ, G½zÀ PÀqÉ VqÀU¼ À ÄÀ EªÉ. D ªÀÄ£ÉAiÀÄ ¸ÀÄvÀª Û ÀÄÄvÀÛ ªÀÄ£ÉU¼ À ÀÄ EªÉ. AiÀiÁgÀ AiÀiÁgÀ ªÀÄ£É JAzÀÄ UÉÆwÛ®.è ªÉÆzÀ®£Éà ¨Áj £À£Àß vÀAzÉvÁ¬Ä ªÀÄvÀÄÛ DgÉÆævÀgÀÄ ªÀÄvÀÄÛ ¥ÉǰøÀgÄÀ D ªÀÄÆgÀÄ ¸À¼ Ü ÀU½ À UÉ ºÉÆÃV §A¢zÀÄÝ, £ÀAvÀgÀ ªÀÄvÉƪ Û ÉÄä £À£ÀߣÀÄß PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃzÀgÄÀ "
40. Having elicited the said fact, but no such denial suggestion made to this witness by the accused persons. If this fact taken into consideration, it is very clear that the accused No.1 and 2 taken her to the house of grand mother of accused No.1 and then to Malawadi, at that same time it is not their defense that the said places are strange places to them, as such there is no connection with that places and them and they have not committed 35 Spl.C.C.No.153/2016 any offences as alleged by the prosecution. Viewing from the available material evidence produced through the victim girl by the prosecution and the evidence elicited at the cross-examination of the accused persons and the defense taken by them, this Court feels to observe that the prosecution establishes the alleged offences against accused No.1 and 2 through the evidence of victim-Pw.3 beyond all reasonable doubt. Now left with the medical evidence produced by the prosecution to know whether the victim girl was subjected to rape and the said rape done by the accused No.1 as per the case of the prosecution.
41. By going through evidence of Pw.4-Dr.C.N.Sumangala, she has deposed that on 21-01-2016 she has examined accused No.1 on the request of Wilson Garden police and issued report as per Ex.P6 and her signature is Ex.P6(a). On perusal of Ex.P6, she has stated that from the examination of accused, there is nothing to suggest that the person is incapable of performing sexual intercourse. As per the evidence of doctor, it is very clear the accused No.1 is capable of performing sexual intercourse. The accused persons tested the veracity of evidence of this witness by eliciting some commission and omission and elicited that she has 36 Spl.C.C.No.153/2016 not recorded any statement of the accused No.1 with regard to the incident and also she has admitted that she has not found any signs of recent sexual intercourse by the accused No.1. Here, as per the case of the prosecution, the accused No.1 had kidnapped the victim on 06-01-2016 and after lapse of two weeks she was brought back to Bengaluru that too on 20-01-2016. When such being the case, it is quite natural, no such signs of sexual act present on the genital part of accused No.1. At this stage this Court feels to observe that the evidence of this witness is there is nothing to suggest that the accused No.1 is incapable of performing sexual intercourse and not more that too he was examined on 21-01-2016. No doubt it is true that the doctor who had examined the victim has not stepped into the witness box to give evidence, whether she was raped or not.
42. Here the prosecution cited Cw.10-Dr.Priyanka.S., as the doctor who examined the victim girl and inspite of issuance of NBW, the police have not secured her presence before the Court. At the same time the prosecution produced medical certificates of victim girl as per Ex.P20 and Ex.P21 through the evidence of 37 Spl.C.C.No.153/2016 Pw.11-B. Bore Gowda-Police Inspector and Investigation Officer of this case.
43. On perusal of Ex.P20 issued by Vani Vilas Hospital- Senior Specialist-Dr.Priyanka.S., it is mentioned hymen was not intact and the opinion of the doctor is that she is exposed to an act like that of coitus. Further after receiving FSL report also she has issued Ex.P21-Medical certificate stating that the victim was exposed to an act like that of vaginal coitus, but as per the FSL report, there is no recent evidence. Admittedly as per Ex.P20 the victim was examined on 21-01-2016, at that time her age was 15 years, she was accompanied with her mother and WPC to the hospital. She has also stated that she was too terrified, does so and also changed her cloths soon after the act and took bath soon after the act. When such being the case, it is quite natural, there is no recent evidence. At the same time it is not in dispute that she was subjected to sexual harassment that too as per the available evidence produced by the prosecution through the accused No.1 and on the instigation of accused No.2.
44. On perusal of cross-examination of Pw.1 in respect of 38 Spl.C.C.No.153/2016 Ex.P20 and Ex.P21, there is no whisper of denial suggestion of disputing the genuinty of existence of Ex.P20 and Ex.P21. When such being the case, it is not safe to disbelieve genuinty of existence of Ex.P20 and Ex.P21. With these observations, now left with the further evidence of Pw.9 and also with regard to the incident from hear say witnesses.
45. By going through the further evidence of Pw.1, he has further deposed that after lodging of complaint, he himself made attempt to trace out the victim and went to Thiruvannamallai, but the victim and the accused No.1 not traced, he return and again went along with the police, after two days of search the victim and the accused No.1 came to police station, the accused No.2 was also in the police station. On enquiry with his daughter, she told the accused No.1 forcibly taken her with dire consequences; as such she went along with the accused No.1. Further his daughter informed in front of temple, the accused No.1 tied turmeric thread on her neck and then raped on her. Thereafter the police sent his daughter to Balakiyara Bala Mandira, where she stayed for one week, she was also subjected to medical examination, after that he has brought his daughter to the house, now she is in Tamil Nadu 39 Spl.C.C.No.153/2016 in the house of mother of his wife. He has also given re-statement as per Ex.P2 and his signature is Ex.P2(a). He has also deposed as per the say of his daughter, the accused No.1 had taken her to a village near Thiruvannamallai. No doubt it is true through the evidence of this witness except the fact that his daughter on 06-01- 2016 in the morning at 08.30 went for work at garments, but she didn't return to home. After that what are all the incidence happened on the victim, he has stated only after hearing about the same from the victim and he is not an eye-witness with regard to the incident occurred on the victim.
46. The accused persons tested his veracity by eliciting some commission and omission and also elicited with regard to background of his family and family members. At the same time he was elicited that the accused persons are residing within a distance of 250 feet from his house, but he doesn't know them personally. Further he was elicited that:
"£À£Àß ªÀÄUÀ¼ÀÄ PÁuÉAiÀiÁUÀĪÀ ªÉÆzÀ®Ä ±Á¯É ©lÄÖ ªÀÄ£ÉAiÀÄ°èz¼ÀÝ ÀÄ JAzÀgÉ ¸Àj. D PÁ®PÉÌ £À£Àß ºÉAqÀw UÁªÉÄðAmïìUÉ PÉ®¸ÀPÉÌ ºÉÆÃUÀÄwÛz¼ ÝÀ ÄÀ JAzÀgÉ ¸Àj. D UÁªÉÄðAmïì £ÀªÀÄä ªÀģɬÄAzÀ MAzÀƪÉgÉ Q¯ÉÆëÄÃlgï zÀÆgÀz° À z è É JAzÀgÉ ¸Àj. CzÉà UÁªÀÉÄðAmïìUÉ £À£Àß ªÀÄUÀ¼ÄÀ £À£ßÀ ºÉAqÀw eÉÆvÉ ªÀÄ£ÉAiÀÄ°èg® À Ä ¨ÉÃeÁgÀÄ JAzÀÄ ºÉÆÃUÀÄwÛz¼ ÀÝ ÀÄ.."40 Spl.C.C.No.153/2016
The above elicitation also supports the case of the prosecution in respect of the victim girl and she was going to garments for work along with her mother. Though the accused persons made suggestion about Auto driver-Tony and Appu, for that he has clearly denied the same. He has admitted about the persons from Kerala came to his house and requested to give the victim girl in marriage to their boy, but he has refused the same stating that she is minor, but at the same time he has denied that the victim girl was not given in marriage, since the victim not accepted the offer made by said person. Further he was elicited that:
"£À£Àß ºÉAqÀw DgÉÆævÀgÀ ªÀÄ£ÉUÉ ºÉÆÃV «ZÁgÀ ªÀiÁrzÀ¼ Ý ÄÀ . zÀÆgÀÄ PÉÆqÀĪÀ ªÉÆzÀ®Ä CxÀªÁ £ÀAvÀgª À ÉÇà UÉÆwÛ®.è £À£Àß ºÉAqÀw DgÉÆævÀgÀ ªÀÄ£ÉUÉ ºÉÆÃV «ZÁgÀ ªÀiÁrzÀ §UÉÎ £À£ÀUÉ ºÉüÀ°®è. zÀÆgÀÄ PÉÆlÖ JgÀqÀĪÀÄÆgÀÄ ¢£ÀPÉÌ £À£Àß ªÀÄUÀ¼ÀÄ ¹PÀ̼ÀÄ. ªÉÆzÀ®Ä wgÀĪÀuÁÚªÀįÉÊ£° À è EzÁÝgA É zÀÄ £ÀªÀÄUÉ UÉÆvÁÛVzÀÄÝ £ÁªÀÅ ªÁºÀ£À ªÀiÁrPÉÆAqÀÄ ºÉÆÃV £ÉÆÃrzÁUÀ C°è ¹UÀ°®è. ªÀÄvÉƪ Û ÉÄä £ÁªÀÅ ¥ÉÇðøÀgÀ eÉÆvÉ wgÀĪÀuÁÚªÀÄ®ÉÊUÉ ºÉÆÃzÁUÀ DUÀ®Æ ¸ÀºÀ CªÀgÀÄ ¹UÀ°®è. £À£Àß ºÉAqÀw £ÀªÀÄä ªÀÄUÀ¼ÄÀ wgÀĪÀuÁÚ ªÀįÉÊ£° À è EzÁݼA É zÀÄ ªÀiÁ»w PÉÆlÖ¼ÀÄ. CªÀjUÉ AiÀiÁgÀÄ ºÉýzÀg Ý ÄÀ JAzÀÄ UÉÆwÛ®.è 2£Éà ¨Áj ºÉÆÃV §AzÀ £ÀAvÀgÀ ¥ÉÇðøÀg£ À ÀÄß ºÀÄqÀÄPÀĪÀAvÉ £ÁªÀÅ MvÁÛAiÀÄ ªÀiÁrzÀj Ý AzÀ ªÀiÁgÀ£É ¢£À gÁwæ ¥ÉÇðøÀgÃÉ PÀgv É A À zÀgÄÀ . ¥ÉÇðøÀgÀÄ £ÀªÀÄUÉ PÀgv É A À zÀ §UÉÎ ªÀÄÁ»w PÉÆlÖ £ÀAvÀgÀ £ÁªÀÅ D gÁwæ oÁtÉUÉ ºÉÆÃzɪÅÀ ."
47. Having elicited the above said fact, but no such denial suggestion made by the accused persons that the accused No.1 not kidnapped the victim girl and not raped on her by denial 41 Spl.C.C.No.153/2016 suggestion. At the same time, the said elicitation clinches the issue unequivocally points out about inducing of victim by the accused persons as per the case of the prosecution. It is also evident that he himself, his wife, his son and his friend-Kutti went to Police station and the time was 07.30 p.m., but the police not allowed them to talk with the victim, on the next day he talked with the victim, at remand home, but he has not requested the police to send the victim to home. At the same time the victim also due to fear not asked the police to send her to the house. At the same time in the police station his wife enquired with the victim about her missing and what had happed on her. Further he was elicited that on enquiry with his daughter, she stated that she went to work, on the way near quarters, the accused persons came, threatened her that if she refuses to accompany with them, they are going to murder her father and forcibly taken her to Koramangala and then to Thiruvannamallai and at Thiruvannamallai they have assaulted her. Having elicited the said fact, the accused persons not denied the said fact by denial suggestion.
42 Spl.C.C.No.153/2016
48. Further he has deposed that one of the police personnel by name-Murthy told him if he forcibly takes the victim to his house, she is going to lose her life, as such he has accepted to send the victim girl to remand home. After taking to his custody, he and his wife not took the victim girl any where. Viewing from available material evidence of Pw.1, this Court has no impediment in arriving into conclusion the prosecution establishes the presumption of kidnap of victim girl, rape on her by accused No.1 and abatement of accused No.2, at the same time the accused persons fails to rebut the same by taking their own defense against the prosecution. Through the evidence of this witness though he is a circumstantial witness and also hear say witness, this Court feels to observe that the prosecution proved the alleged offences against the accused No.1 and 2 beyond all reasonable doubt.
49. Now left with the available evidence of Pw.2-Mary the mother of victim. She has deposed in her chief examination in respect of admitted facts of her family background, the age of victim and her educational qualification. Further she has deposed that on 06-01-2016 she has not gone for work and the victim alone went to work, but she didn't return to home in the evening. She 43 Spl.C.C.No.153/2016 made efforts to trace out the victim, but the victim not traced. She has searched every where including in her relatives, friends of victim girl. On 18-01-2016 she lodged complaint. Initially the police not taken the complaint, but on the say of Commissioner's Officer they have received the complaint and registered the case.
50. No doubt it is true there is delay in lodging complaint by the husband of this witness, but at the same time, in order to safeguard the life of the victim, they made delay in lodging of complaint, till then they have also made efforts to trace out the victim girl. It is also her evidence that two hours after lodging of complaint, the sister of accused No.1 came to her house and asked whey they have not lodged complaint even though her daughter was found missing. 2-3 days after lodging of complaint, sister and mother of accused No.1 came to her and told that the accused No.1 along with the victim are at Tamil Nadu and their marriage is being celebrated in a Panchyath. Immediately after receiving the said information, this witness and her husband went to the police station and informed about the said fact to the police. Thereafter she herself, her husband along with police went to Tamil Nadu, but the victim and the accused were not found and they return to 44 Spl.C.C.No.153/2016 Bengaluru. Two days after of this incident, the accused No.2 called her stating that the victim girl came to her house, immediately she went to the house of accused persons along with her husband and police brought the victim girl to the police. On enquiry with her daughter she told that she has not committed any mistake, the sister of accused No.1 had taken her to their house, where the accused No.2 then her to Tamil Nadu and forced her to marry the accused No.1 and thereafter they celebrated her marriage with the accused No.1 and earlier to that also the accused No.1 raped on her.
51. Here it is relevant to note, up to missing of victim girl, the evidence of this witness is having of personal knowledge, after missing, she has stated on the say of victim as to what ever happened on the victim girl from the accused No.1 and she came to know it as hear say evidence. At the same time she heard the incident from her daughter only and not any other person. The said facts and circumstances also corroborates with the incident taken place on victim from the accused No.1.
52. The accused persons tested the veracity of evidence of 45 Spl.C.C.No.153/2016 this witness by eliciting some commission and omission and also elicited the admitted fact of family back ground of this witness, family members, victim girl, studies of victim girl and working of the victim girl, for that even the prosecution also not disturbed. At the same time having taken defense about the character assassination of the victim girl by the accused persons, no such supporting corroborative, cogent, oral and documentary evidence placed by the accused persons to prove the victim girl is such type of girl and the accused No.1 has not committed any offences as alleged against him. In the cross-examination itself she has deposed that recently the accused No.1 demanded her to give the victim in marriage and he has also harassed the victim. Further she was elicited that:
"£À£Àß ªÀÄUÀ¼ÀÄ 10£Éà vÀgÀUÀwAiÀÄ°è NzÀÄwÛzÁÝUÀ DgÉÆæ vÉÆAzÀgÉ PÉÆqÀÄwÛzÁÝ£A É zÀÄ ºÉýzÀj Ý AzÀ £Á£ÀÄ ±Á¯ÉUÉ PÀ¼ÀÄ»¸À°®è. DgÉÆæ vÉÆAzÀgÉ PÉÆqÀÄwÛzÁÝ£A É zÀÄ £Á£ÀÄ ¥ÉÇðøÀjUÀÉ zÀÆgÀÄ PÉÆqÀ°®è."
53. Having elicited the said information against the accused persons, the accused persons have not denied the same by denial suggestion. Viewing from the available material evidence produced through prosecution witnesses, this Court has no impediment in arriving into conclusion that the prosecution proved the alleged 46 Spl.C.C.No.153/2016 incident through the evidence of this witness against accused persons beyond all reasonable doubt.
54. Now left with the evidence of Pw.8-Kutty. He has deposed that he has signed Ex.P8 and Ex.P8(b) is his signature and he has signed the same in the police station in respect of the accused No.1 taking the victim along with him. On 30-01-2017 he accompanied with the police to Chengum Taluk, brought the victim, at that time the accused No.1 was not with the victim. The prosecution treated this witness as hostile to prosecution case and suggested that he has accompanied with the police to Thokawadi of Changum, Thiruvannamallai District in respect of conducting mahazar stating that the accused No.1 kept the victim in the house of Chennamma and the said place was shown by the victim stating that from 08-01-2016 to 13-01-2016 the accused No.1 kept her there and raped on her. Further from 14-01-2016 to 16-01-2016 the accused No.1 kept the victim girl at the house of Ramaraju and raped on her. The said places were also shown by the victim girl to the police and at that places Ex.P4 was written and he has signed the same. He has accepted conducting of mahazar with regard to Thokawadi, but he has shown his ignorance about conducting of 47 Spl.C.C.No.153/2016 mahazar at the house of Ramaraju.
55. The accused persons tested the veracity of evidence of this witness by eliciting some commission and omission, except denial suggestion nothing has been elicited favourable to the defence taken by him. At this stage this Court feels to observe the evidence of this witness is a formal one. With these observations, now left with the evidence of other witnesses produced by the prosecution in respect of investigation and arrest of accused persons by the police personnel.
56. By going through the evidence of Pw.4-Kavitha.H.P. WPC-12752, she has deposed that on 21-01-2016 when she went to the station for duty, at that time the P.S.I., entrusted her the work of tracing out of accused persons along with Gururaj Jelle and Sachidananda, accordingly they have searched and received information from Bathmidars and came to Sarjapura Road, caught hold the accused persons, brought them to station and she has given statement before the SHO. No doubt it is true with regard to arrest of accused No.1, it is not in dispute and the evidence of this witness is a formal one. The accused persons tested her veracity by 48 Spl.C.C.No.153/2016 eliciting some commission and omission and also elicited the place where they caught hold the accused No.1 and 2, brought them to the police station and nothing has been elicited favourable to the defense taken by the accused No.1 and 2. At this stage this Court feels to observe that the evidence of this witness is a formal one.
57. By going through the evidence of Pw.7-Sachidananda- H.C.8580, who was also accompanied with Pw.6 to trace out the accused persons and according to him they went for searching the accused persons in a Tata Sumo and came to know from Bathmidars are at Sarjapura Road, immediately they went there, searched and caught hold the accused persons and brought them to the station and given report as per Ex.P9 and his signature is Ex.P9(a). The accused persons tested his veracity by eliciting some commission and omission and except denial suggestion, nothing has been elicited favourable to the defense taken by the accused persons. At this stage regarding caught hold of accused persons is not in dispute, even no such supporting defense is taken by the accused persons that they themselves appeared before the SHO and at that time the police arrested them. At this stage this Court feels to observe that the evidence of this witness is a formal one. 49 Spl.C.C.No.153/2016
58. By going through the evidence of Pw.10-Puttaswami Gowda-A.S.I. he has deposed that on 18-01-2016 the complainant came and lodged complaint as per Ex.P1 and he has perused the same and registered the case in Crime No.17/2016 for the offence punishable under section 363 of IPC. He has prepared FIR as per Ex.P14 and her signature is Ex.P14(a). The accused persons tested the veracity of this witness and also elicited that earlier to registering the case he had not went to garments factory to ascertain about the work of the victim, except that no such defence taken by the accused persons while cross-examining this witness. Further this witness also deposed that on 22-01-2016 he has sent the accused persons for medical examination to Victoria Hospital through escort-H.C.8777 and WPC-12752. This piece of evidence is not challenged by the accused persons. Through the evidence of this witness the prosecution produced evidence in respect of registering of case against accused persons on the complaint of complainant as per Ex.P1 beyond all reasonable doubt. Now left with the available evidence produced by the prosecution through Pw.9.
59. By going through the evidence of Pw.9-Murthy-P.S.I., he 50 Spl.C.C.No.153/2016 has deposed that on 21-01-2016 the parents of victim came and told that their daughter came to house and brought her to the station and produced before him and at that time he has recorded the restatement of the complainant as per Ex.P2 and his signature is Ex.P2(b). Here with regard to Ex.P2, Pw.1 corroborated his evidence. He has also recorded the statement of the victim as per Ex.P3. Here the victim also while giving her evidence corroborated the contents of Ex.P3. On the basis of Ex.P2 and Ex.P3 he has requested the Court to insert the offences under Section 3, 4 and 5 of POCSO Act and section 363, 376, 109 read with section 34 of IPC and obtained permission from the Court, his request is at Ex.P10.
60. Further he has deposed that on the very same day he has sent the victim girl for medical examination along with her mother, through escort of WPC and also entrusted the work of tracing of accused persons and also submitted requisition as per Ex.P11 for transfer of case to POCSO Court. On the same day he has given requisition to the School authorities to furnish the birth certificate of the victim. On the very same day at about 01.00 p.m., Cw.13 and Cw.14 and Gururaja Jelly brought the accused persons 51 Spl.C.C.No.153/2016 to the station, Cw.13 given report as per Ex.P9 and his signature is Ex.P9(b). Thereafter he has arrested the accused persons and also sent the accused No.1 for medical examination, after that he has received medial report of accused No.1 as per Ex.P12 and also sent requisition as per Ex.P13 to examine the victim girl and his signature is Ex.P13(a). He has also recorded voluntary statement of accused No.1 and he has stated that with an intention to marry the victim girl he had taken her on 06-01-2016 near her house by way of kidnap, kept her in a villages near by Thiruvannamallai and also raped on her several times. Further he has stated that to do the said act, the accused No.2 instigated him and submitted that he is going to show the places where he has kept the victim and committed rape on her. After recording voluntary statement of accused No.1, as the offences are heinous in nature on 22-01-2016 he has handed over the record and the accused persons to Cw.19.
61. Pw.9 further deposed that on 29-01-2016 Cw.19 issued a memo to conduct mahazar at the places where the victim girl was kept and raped, accordingly on 30-01-2016 he has taken Cw.1 to Cw.3, Panchas and police personnel, went to Tamil Nadu, Thiruvannamalli District, Chengum Taluk, Tukawadi Village, where 52 Spl.C.C.No.153/2016 the victim girl shown the house of Chennamma stating that the accused No.1 kept her in that house and raped on her. Accordingly he has conducted mahazar as per Ex.P4. Thereafter he has also conducted mahazar at House No.469/228 and it is his evidence that the accused No.1 kept the victim there from 08-01-2016 to 13- 01-2016 in that house of Chennamma and from 14-01-2016 to 16- 01-2016 at the house of Ramaraju and he has raped on the victim at both the places. He has also conducted mahazar as per Ex.P4 and his signature is Ex.P4(c). He has also recorded the statement of Chennamma, but she has not stepped into the witness box to give evidence either in favour of the accused persons or in favour of the prosecution.
62. The accused persons tested the veracity of evidence of this witness by eliciting some commission and omission, except denial suggestion, nothing has been elicited favourable to the defense taken by them. At the same time he has admitted that no such supporting document obtained from Cw.6 and Cw.7 to believe that the said houses belonged to them. When the victim girl shown the places where she was kept by the accused No.1 and 2 and while cross-examining Pw.1 to Pw.3 they have not disputed the 53 Spl.C.C.No.153/2016 houses of Chennamma as the house of grand mother of accused No.1 and the house of Ramaraju is their relatives house, question of disbelieving the process of conducting mahazar by this witness doesn't arises. At this stage, this Court feels to observe that with regard to conducting of process of investigation by this witness, the prosecution proved beyond reasonable doubt.
63. By going through the evidence of Pw.11-B.Boregowda- Retired Police Inspector, he has deposed that he has received record from Cw.18 on 28-01-2016, conducted further investigation. He has received articles from the doctor sent through WPC-1381, made it subjected to P.F.No.6/2016 and also received report as per Ex.P15 and his signature is Ex.P15(1). Thereafter he has sent those articles to RFSL-Mysore for chemical examination. He has also received medical report as per Ex.P6 in respect of the accused No.1 and his signature is Ex.P6(b). He has also received acknowledgement from RFSL as per Ex.P16 and his signature is Ex.P 16(a). He has also identified MO4 to MO9-articles sent to RFSL-Mysore for chemical examination. He has also received RFSL report as per Ex.P17, model seal as per Ex.P18 and Ex.P17(a) and Ex.P18(a) are his signatures. He has also received statement given 54 Spl.C.C.No.153/2016 before Magistrate by the victim recorded under section 164 of Cr.P.C., as per Ex.p5. He has also received documents with regard to birth certificate and study certificate of victim as per Ex.P7 and Ex.P8 from school and his signature is Ex.P7(b) and ex.P8(b), the requisition sent to school is at Ex.P19 and his signature is Ex.P19(a). He has also received Ex.P20 and Ex.P21-medical report and medical certificate of the victim girl. He has sent the accused through escort and remand application to the Court. He has also arrested the accused No.2 and released her on bail. After investigation and as the commission of offences confirmed, as such he has field charge sheet against accused No.1 and 2.
64. The accused persons tested the veracity of evidence of this witness by eliciting some commission and omission in his cross-examination, except denial suggestion, nothing has been elicited favourable to the defense taken by the accused persons. He has admitted at the time of recording of victim girl's statement no such witnesses were present, but at the same time it is very clear the POCSO Act doesn't give permission to record the victim' s statement in the presence of witnesses, at the same time it give permission to record victim girl's statement before her parents. 55 Spl.C.C.No.153/2016 Here in the present case on hand, the mother of the victim girl was present at the time recording of her statement.
65. Further with regard to Ex.P4, he has admitted that he has not obtained signature of grand mother of accused No.1. If really the said house not belonged to the grand mother of accused No.1, definitely the accused persons going to examine her as their defense witness, instead of producing the evidence of Dw.1-the sister of accused No.1 who is an interested witness. There is a suggestion of conducting mahazar as per Ex.P4 in front of house of Chennamma at Tokawadi and at house of Ramaraju at Malawadi. At the same time it is the defense of accused persons that no such separate mahazar drawn at both the places. Here Ex.p4 is a continuous process of conducting of investigation, as such the Investigation Officer prepared mahazar as per Ex.P4. He has also admitted that in order to establish the house of grand mother of accused No.1 belonged to her at Tokawadi, no such documents collected by the Investigation Officer, but non-collection of documents pertaining to the house of grand mother of accused No.1, is not a fatal to the case of prosecution. At this stage, this Court feels to observe that the material witnesses-Pw.1 to Pw.3 and 56 Spl.C.C.No.153/2016 Pw.8-Independent witness supported to the case of the prosecution, question of disbelieving the evidence of this witness doesn't arises.
66. The accused persons produced the evidence of Dw.1- Bharathi-the sister of accused No.1 and daughter of accused No.2. She has deposed favourable to the defense taken by the accused No.1 and 2. But in the cross-examination, the learned Special Public Prosecutor denied the evidence given by her by denial suggestion, but nothing has been elicited favourable to the prosecution. At this stage, this Court feels to observe that the evidence of Dw.1 is no way helpful to the accused No.1 and 2 to believe their defense.
67. The learned advocate for accused No.1 and 2 relied on the decisions reported in AIR 1970 SC Page 1020-Head Note-(D), (E), 1972 Crl.L.J Page 824, 1979 Crl.L.J. 867, AIR 1995 SC 2169, 1995 Crl.L.J. 3387-Head Note-B, 1996 Cri.L.J.1829, 1997 Crl.L.J. 2641, 2001 Crl.L.J. 1953, 2001 Crl.L.J. 3812, 2002 Crl.L.J. 3346, 2002 Crl.L.J. 752, 2003 Crl.L.J. 1891-Head Not3(B) & (C), 2003 AIR SCW 4779-Head Note-D and 2014 Crl.L.J. 4286. But with due respect to the learned advocate for accused No.1 and 2 the 57 Spl.C.C.No.153/2016 facts and circumstances of the above case decisions and the facts and circumstances of the case on hand are different one and the ratio of principle of the said decisions is not applicable to the present case on hand.
68. Here on perusal of entire prosecution evidence placed on record and the case of the prosecution in this case, acquaintance of the accused No.1 and 2 with the victim is not in dispute and the prosecution established the same. It is also not in dispute that the accused persons were asked the parents of the victim to give her in marriage to the accused No.1 and the parents of victim refused for the same, since she was minor. Further it is the defense of the accused persons the victim herself went to their house for help when a Keralian boy parents came to her house, but no such supporting documentary evidence produced by the accused persons to establish their defense. Even the defense taken with regard to the character of the victim in respect of Tony and Appu, but no suc supporting evidence placed by the accused persons to establish their defense. At the same time the evidence of victim girl and the medical evidence clearly establish rape was committed by accused No.1 on her. The available evidence also 58 Spl.C.C.No.153/2016 discloses the accused No.1 with the help of accused No.2 forcibly taken the victim to a village near Thiruvannamallai, where his grand mother house was situated and kept her there for some days and raped on her. It is also evidence that the accused No.1 shifted the victim to Malawadi, kept her in the house of Ramaraju, there also he has raped on the victim. After lodging of complaint by the parents of victim and after coming to know about the same the accused No.2 went to said village, given some amount to accused No.1 and encouraged the act of the accused No.1 on the victim, as such as per section 29 of POCSO Act, the prosecution successfully establishes the presumption of commission of offence on the victim girl by the accused persons beyond all reasonable doubt and the POCSO Act meant for victim girl oriented Act. At the same time the accused persons fails to rebut their defense against the prosecution as per Section 30 of POCSO Act, in order to disbelieve the alleged offences against accused No.1 and 2 beyond reasonable defense.
69. The oral and documentary evidence placed on record by the prosecution is sufficient to prove the alleged offences against the accused beyond all reasonable doubt. The defense of the 59 Spl.C.C.No.153/2016 accused persons not established by them through the cross- examination of Pw.1 to Pw.11. The facts and circumstances of the case including materials on record discussed above probablise the case of the prosecution rather than the defense of the accused persons.
70. In view of aforesaid reasons, I hold that the evidence of Pw.1 to Pw.11 and documentary evidence as per Ex.P1 to Ex.P21 and MO1 to MO9 and also the evidence of Dw.1 placed on record in respect of alleged offences is sufficient to prove that the accused No.1 and 2 with common intention in order to marry the victim girl by the accused No.1, on 06-01-2016 at about 09.00 a.m., within the jurisdiction of Wilson Garden Police Station, kidnapped her in front of her house bearing No.59/A, 12th Cross, Narayanapura, taken her to Tukawadi Village-Chengum Taluk, Thiruvannamallai District of Tamil Nadu, kept in the house of Cw.7-Chenamma, and also again kept her in the house of Cw.6-Ramaraju at Malawadi Village from 07-01-2016 to 20-01-2016, the accused No.1 continuously raped the victim girl knowing fully well that she was minor, the accused No.2 came to that village and gave money to accused No.1, encouraged him to do the said act and thereby committed offences 60 Spl.C.C.No.153/2016 punishable under Section 366, 376, 109 read with section 34 of I.P.C., Section 3 and 4 of POCSO Act, 2012 beyond all reasonable doubt. Consequently I hold Point No.1 to 4 in the "Affirmative".
71. Point No.5:- For the above said reasons and discussions on Point No.1 to 4, I hold that the accused persons are entitled for an order of conviction. Hence, in the final result, I proceed to pass the following:
ORDER Acting under Section 235(2) of Cr.P.C., the accused No.1 is found guilty and convicted for the offences punishable under Section 366, 376 read with section 34 of I.P.C., Section 3 and 4 of POCSO Act, 2012 and accused No.2 is found guilty and convicted for the offence punishable under Section 109 read with section 34 of I.P.C.
The bail bonds and surety bonds of accused No.1 and 2 stands cancelled and taken to Court custody and remanded to jail.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open Court on this the 28th Day of July 2018) (SUSHEELA) L ADDL., CITY CIVIL & SESSIONS JUDGE, BANGALORE 61 Spl.C.C.No.153/2016 ORDER ON SENTENCE Heard the arguments from the learned counsel for accused No.1 and 2 and the learned Special Public Prosecutor absent, The regular Public Prosecutor argued regarding sentence.
2. The accused No.1 and 2 submits that they are the only earning members in their family. The accused No.1 is having aged father and the accused No.2 is having aged husband, who is suffering from paralytic stroke and also produced medical documents to that effect for perusal and they have to look after him and requested to take lenient view in respect of imposing sentence on them. On the other hand the learned regular Public Prosecutor submitted that looking to the facts of the case, lenient view should not be taken regarding sentence.
3. It is not in dispute that the accused No.1 with the support of accused No.2 forcibly took the victim girl to Tamil Nadu with an intention to marry her, kept her in his grand mother's house and at relatives house from 06-01-2016 to 20-01-2016 and raped on her. This fact is deposed by Pw.1 to Pw.3 and Pw.8. The medical evidence also supports the rape committed on the victim girl. When such being the case, I feel the ends of justice will be met by imposing the minimum sentence to accused No.1 for the offences punishable under section 366, 376 of IPC and section 3 and 4 of POCSO Act, 2012 and also minimum sentence to accused No.2 for the offence punishable under section 109 of IPC. 62 Spl.C.C.No.153/2016
4. Further, in respect of offence under Section 366 of I.P.C., punishment for Procuration of a girl, forced intercourse, the punishment is imprisonment for a term which may extend to ten years and shall also be liable to fine. Further in respect of offence under section 376 of I.P.C., fixed rigorous imprisonment for a term which shall not be less than seven years, but which may extend to imprisonment for life and fine. In respect of offence under Section 3 read with Section 4 of POCSPO Act, 2012, the punishment prescribed is imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
5. Here the accused No.1 kidnapped the victim from her lawful guardian and raped on her. Thus in my opinion, the Court has to impose sentence of rigorous imprisonment of seven years with fine of Rs.10,000/- and in default of payment of fine, to under go simple imprisonment for a period of four months in respect of offence under Section 376 of I.P.C., fixed to accused No.1, simple imprisonment of three years with fine of Rs.5,000/- and in default of payment of fine, to under go simple imprisonment for a period of two months in respect of offence under Section 366 of IPC fixed to accused No.1 and simple imprisonment of seven years with fine of Rs.10,000/- and in default of payment of fine, to under go simple imprisonment for a period of four months in respect of offence Section 3 read with section 4 of POCSO Act, 2012 is fixed to the accused No.1 no impediments will be caused to him. 63 Spl.C.C.No.153/2016
6. Further in respect of offence under Section 109 of I.P.C- punishment of abetment, if the act abetted is committed in consequence of the abetment be punished with punishment provided for the offence. Here, the accused No.2 abetted the accused No.1 to entice the victim girl and to commit rape on her as per section 366 and 376 of IPC and also under section 3 read with section 4 of POCSO Act, 2012, as such, imprisonment of two years with fine of Rs.2,000/- and in default of payment of fine, to under go simple imprisonment for a period of one month in respect of offence Section 109 of IPC is fixed to the accused No.2 no impediments will be caused to her. Hence, I proceed to pass the sentence as under:
ORDER The accused No.1 is sentenced to under go rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000/- for the offence under Section 376 of I.P.C., and in default of payment of fine, he shall further under go simple imprisonment for a period of four months.
The accused No.1 is sentenced to under go imprisonment for a period of three years and to pay a fine of Rs.5,000/- for the offence under Section 366 of IPC, and in default of payment of fine, he shall further under go simple imprisonment for a period of two months.
64 Spl.C.C.No.153/2016The accused No.1 is sentenced to under go imprisonment for a period of seven years and to pay a fine of Rs.10,000/- for the offence under Section 3 read with section 4 of POCSO Act, 2012, and in default of payment of fine, he shall further under go simple imprisonment for a period of four months.
The accused No.2 is sentenced to under go imprisonment for a period of two years and to pay a fine of Rs.2,000/- for the offence under Section 109 of IPC, and in default of payment of fine, she shall further under go simple imprisonment for a period of one month.
All the above three sentences of accused No.1 shall run concurrently.
The accused No.1 and 2 are entitled for benefit of set off for the period for which they have already undergone imprisonment as under trial prisoners during the course of trial as provided under Section 428 of Cr.P.C.
Office is directed to return MO-1 to MO-3-articles to the victim girl. M04 to MO9 are treated as worthless properties. Office is directed to destroy the said articles in accordance with law after appeal period is over and if an appeal is preferred, after disposal of appeal and as per its result.
65 Spl.C.C.No.153/2016
Issue conviction warrant against accused No.1 and 2 in accordance with law.
Furnish free copy of judgment and order of sentence to the accused No.1 and 2 forth with.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open court on this the 1st Day of August 2018) (SUSHEELA) L ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION Pw.1 Joseph Thomas Cw.1 03-12-2016 Pw.2 Marry Cw.3 09-01-2017 Pw.3 Victim Cw.2 06-02-2017 Pw.4 Kavitha.H.P. Cw.14 21-07-2017 Pw.5 Dr.C.N.Sumangala Cw.11 31-08-2017 Pw.6 Sujatha Cw.12 31-08-2017 Pw.7 Sachidananda Cw.13 31-08-2017 Pw.8 Kutti Cw.5 31-08-2017 Pw.9 Murthy Cw.18 31-08-2017 Pw.10 Puttaswamy Gowda Cw.17 15-09-2017 Pw.11 B.Bore Gowda Cw.19 09-10-2017 66 Spl.C.C.No.153/2016 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Complaint Pw.1 03-12-2016 Ex.P 1a Signature of Pw.1 Pw.1 03-12-2016 Ex.P 1b Signature of Pw.10 Pw.10 15-09-2017 Ex.P 2 Re-statement of Pw.1 Pw.1 03-12-2016 Ex.P 2a Signature of Pw.1 Pw.1 03-12-2016 Ex.P 2b Signature of Pw.9 Pw.9 31-08-2017 Ex.P 3 Statement of Pw.3 Pw.3 06-02-2017 Ex.P 3a Signature of Pw.3 Pw.3 06-02-2017 Ex.P 3b Signature of Pw.9 Pw.9 31-08-2017 Ex.P 4 Mahazar Pw.3 06-02-2017 Ex.P 4a Signature of Pw.3 Pw.3 06-02-2017 Ex.P 4b Signature of Pw.8 Pw.8 31-08-2017 Ex.P 4c Signature of Pw.9 Pw.9 31-08-2017 Ex.P 5 Statement recorded Pw.3 06-02-2017 u/s. 164 of Cr.P.C.
Ex.P 5a Signature of Pw.3 Pw.3 06-02-2017
Ex.P 6 Medical examination Pw.5 31-08-2017
report of accused
Ex.P 6a Signature of Pw.5 Pw.5 31-08-2017
Ex.P 7 Birth certificate of Pw.6 31-08-2017
victim
Ex.P 7a Signature of Pw.6 Pw.6 31-08-2017
Ex.P 7b Signature of Pw.11 Pw.11 09-10-2017
Ex.P 8 Report containing Pw.6 31-08-2017
details of victim
Ex.P 8a Signature of Pw.6 Pw.6 31-08-2017
Ex.P 8b Signature of Pw.11 Pw.11 09-10-2017
Ex.P 9 Report Pw.7 31-08-2017
67 Spl.C.C.No.153/2016
Ex.P 9a Signature of Pw.7 Pw.7 31-08-2017
Ex.P 9b Signature of Pw.9 Pw.9 31-08-2017
Ex.P 10 Requisition Pw.9 31-08-2017
Ex.P 10a Signature of Pw.9 Pw.9 31-08-2017
Ex.P 11 Requisition Pw.9 31-08-2017
Ex.P 11a Signature of Pw.9 Pw.9 31-08-2017
Ex.P 12 Requisition Pw.9 31-08-2017
Ex.P 12a Signature of Pw.9 Pw.9 31-08-2017
Ex.P 13 Requisition Pw.9 31-08-2017
Ex.P 13a Signature of Pw.9 Pw.9 31-08-2017
Ex.P 14 FIR Pw.10 15-09-2017
Ex.P 14a Signature of Pw.10 Pw.10 15-09-2017
Ex.P 15 Report of Cw.15 Pw.11 09-10-2017
Ex.P 15a Signature of Pw.11 Pw.11 09-10-2017
Ex.P 15b Signature of Cw.15 Pw.11 09-10-2017
Ex.P 16 Report of Cw.16 Pw.11 09-10-2017
Ex.P 16a Signature of Pw.11 Pw.11 09-10-2017
Ex.P 16b Signature of Cw.16 Pw.11 09-10-2017
Ex.P 17 RFSL Report Pw.11 09-10-2017
Ex.P 17a Signature of Pw.11 Pw.11 09-10-2017
Ex.P 18 Model seal Pw.11 09-10-2017
Ex.P 19 Requisition Pw.11 09-10-2017
Ex.P 19a Signature of Pw.11 Pw.11 09-10-2017
Ex.P 20 Medical examination Pw.11 09-10-2017
report of victim
Ex.P 21 Medical certificate Pw.11 09-10-2017
Ex.P 21a Signature of Pw.8 Pw.11 09-10-2017
68 Spl.C.C.No.153/2016
LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF
PROSECUTION
MO1 Chain Pw.3 06-02-2017
MO2 Ear-ring Pw.3 06-02-2017
MO3 Anklet Pw.3 06-02-2017
MO4 Nail Clippings Pw.11 09-10-2017
MO5 Pubic Hair Pw.11 09-10-2017
MO6 Vaginal Swab Pw.11 09-10-2017
MO7 Vaginal Smear Pw.11 09-10-2017
MO8 Cervical Smear Pw.11 09-10-2017
MO9 Cervical Swab Pw.11 09-10-2017
LIST OF WITNESSES EXAMINED ON BEHALF OF DEFENCE Dw.1 Bharathi 23-02-2018 LIST OF DOCUMENTS & MATERIAL OBJECTS MARKED ON BEHALF OF DEFENCE NIL L ADDL. CITY CIVIL & SESSIONS JUDGE BANGALORE