Bangalore District Court
State By Peenya Police vs Pinto Singh on 14 December, 2016
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH-55)
Dated this the 14th day of December 2016
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
Spl.C.C.No.263/2013
COMPLAINANT State by Peenya Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Pinto Singh,
Son of N.P.Singh @ Naveen Prasad Singh,
Aged 40 years,
Residing at No.5/F, Austin Garden,
Near 8th Mile, Hessaraghatta Main Road,
Bangalore-57.
(By Sri.M.T.Nanaiah-Advocate)
1. Date of commission of From 17.07.2013 to 10.08.2013
offence
2. Date of report of occurrence 26.08.2013
3. Date of arrest of accused 27.08.2013
4. Date of release of accused 10.02.2014
[bail]
5. Period undergone in custody 11 Months, 05 Days
by the accused
6. Date of commencement of 6.8.2014
evidence
2 Spl CC No.263/2013
7. Date of closing of evidence 29.11.2016
8. Name of the complainant Kumari.Varsha Singh @ Pallabi
9. Offences complained of Sec.376(2) (c) of IPC and Secs. 4,
5(n), 6 of POCSO Act, 2012
10. Opinion of the Judge Accused is acquitted of the
offences punishable under
Sec.376(2) (c) of IPC and Secs. 4,
5 (l) (n), 6 of POCSO Act, 2012
JUDGMENT
Police Inspector, Peenya Police Station, Bangalore has submitted charge sheet in Crime No.550/2013against the accused for the offences punishable Under Sec.376(2) (c) of IPC and Secs. 4, 5(n), 6 of POCSO Act, 2012 .
2. The prosecution case briefly stated that:
The complainant-victim girl being the daughter of the accused was residing with her grand-parents in Karanja Village, Bihar State, 3 months prior to the incident reported, the accused brought the victim girl to Bangalore to his Flat No.5/F, Austin Garden, Near 8th Mile, Hesharaghatta Main Road, Bangalore with an intention to join her to a college. But, he did not join her to a college, when the victim girl enquired the accused to join her to college, he [accused] told that, he likes the victim girl very much, so he brought her to his house, thereafter, when she [victim girl] was 3 Spl CC No.263/2013 alone in the house, the accused used to touch her private parts, inspite of requests made by her to the accused not to do so, he continued doing the same thing, on 17.7.2013 at about 2 P.M., when the victim girl was alone in the house, the accused sent away the servant from the house to bring laptop at 6 P.M., and thereafter he came near the victim girl and touched her private parts and took her to the bedroom, removed her clothes and committed rape on her under threat, further during the 1st week of August-2013, the accused took her [victim girl] to Shobha Apartments, 3rd Block, 8th Floor situated in Tumkur Road, Nagasandra Colony and committed rape on her against her will. Hence, the complaint as per Ex.P10.
3. As per the Statement given by the victim girl, the complainant Police Station have registered a case against the accused in Cr.No.550/2013 as per FIR marked as Ex.P11 for the offences punishable under Sec.376(2)(c) of IPC and under Secs. 4, 5(n), 6 of POCSO Act, 2012. Thereafter Investigating Agency commenced the investigation. The victim girl was sent for medical examination, statement of the witnesses recorded and the accused was secured on 27.8.2013. He was also sent for medical examination and the articles seized during the medical examination were sent to the FSL. After completion of the investigation formalities, charge-sheet has been filed against the accused for the offences punishable under Sec.376(2)(c) of IPC and under Secs. 4, 5(n), 6 of POCSO Act, 2012.
4 Spl CC No.263/20134. The accused is on bail and he is represented by the counsel of his choice. After appearance of the accused before this court, the copies of the prosecution papers [charge-sheet] was given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5. After hearing the learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in- office has framed the Charge on 18.2.2014 against the accused for the offences punishable under Sec.376(2) (c) of IPC and under Secs.5(l), (n) r/w Sec.6 of POCSO Act, 2012 and read over the charge to the accused in the language known to him. The accused pleaded not guilty and claimed trial.
6. The prosecution in order to bring home the guilt of the accused has examined in all 7 witnesses as PWs-1 to 7 out of the total 18 witnesses as shown in the charge-sheet and got marked 12 documents at Exs.P1 to P12. There are no Material Objects marked.
7. Now at this stage, it is necessary to mention that, in the charge-sheet total 18 witnesses are shown and only 7 witnesses are examined by the prosecution. The prosecution has not examined CWs-1 to 4, CWs-8 to 10, CWs-13, 14, 17 and 18. CW1-victim girl, CW2- working in the house of the accused, CW3-mother of the victim girl, CW4- relative of the victim girl, CW8-security guard wherein the accused and the victim girl were residing, CW9 and CW10- witnesses to the spot mahazar, CW13- Police Constable who 5 Spl CC No.263/2013 secured the accused before the PSI, CW14- Police Constable who took the articles of victim girl and the accused after medical examination and produced the same before the Police and issued a Report to that effect, CW17-Police Inspector who received the case file from PSI and took up further investigation and sent the victim girl and the accused for medical examination, went to the place of the incident and collected the articles and CW18-Police Inspector who received the Case File from CW17 and took up further investigation and recorded the further statement of CW2 and submitted charge-sheet before this court, are not examined by the prosecution. On perusal of the order sheet, it discloses that, CW1 to CW4 are the residents of Bihar and the summons and warrants issued as many as 10 times even through DCP, but, their presence could not be secured. Under these circumstances, the prayer made by the learned Public Prosecutor to reissue summons and warrants to CW1 to CW4 is rejected and CW1 to CW4 are dropped. CW13 is given up as repetition, CW14 is given up, as Report of CW14 regarding brining the articles from the hospital is marked as Ex.P9, with consent of accused counsel, CW14 is given up. Moreover as the victim girl herself turned hostile, examination of CWs-8 to 10, 17 and 18 witnesses are dropped by rejecting the prayer made by the learned Public Prosecutor.
8. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C is recorded. The accused has denied the incriminating evidence found in the evidence of prosecution witnesses and his defence is that of total 6 Spl CC No.263/2013 denial and he claimed that he is innocent and further stated that there is matrimonial dispute between him and his 1st wife, at Bihar, there is property dispute and there is also criminal shooting on his brother by his father-in-law. However, the accused did not choose to lead any evidence in support of his defense.
9. Heard the learned Public Prosecutor and the learned counsel for the accused. Perused the records.
10. After hearing the arguments of the learned Public Prosecutor and the learned defence counsel and as per the Charge leveled against this accused, following Points do arise for my consideration are:
1. Whether the prosecution proves beyond reasonable doubt that on 17.7.2013 at about 2.00 P.M, the accused herein being the father of the victim girl, knowing that the victim girl is a minor, committed rape and aggravated penetrative sexual assault on the victim girl repeatedly and thereby committed an offence punishable under Sec.376(2)(c) of IPC and under Secs. 5(l), (n) r/w Sec.6 of POCSO Act, 2012 ?
2. What Order?
11. My findings on the above points are as under:
Point No.1 : In the NEGATIVE Point No.2: As per the final order, for the following:7 Spl CC No.263/2013
REASONS
12. According to the prosecution, that on 17.7.2013 at about 2 P.M., when the victim girl was alone in the house, the accused herein being her father committed rape on her under threat and against her will. Hence, the accused has committed the offences as per the charge leveled against him.
13. The burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution has relied on the evidence of PWs-1 to 7. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Rajesh Pandiyan
Pw.2 Bhaskar are the neighbourers of the
accused in Austen Garden
Apartment
Pw.3 M.D.Kannan
Pw.4 Santhosh.S.Jampal-Police Inspector deposes about
taking the seized articles to FSL,Madivala, Bengaluru Pw.5 Dr.Dineshrao-Professor of FSL deposes about the medical examination conducted on the Victim girl.
Pw.6 Arogyamma.B- Co-ordinator of SJPU Pw.7 B.N.Lohith- Police Inspector who deposes about
registering of FIR, apprehending of the accused
14. Before appreciating the evidence, it is better to have a glimpse of the evidence given by all witness.
8 Spl CC No.263/201315. PW1-Rajesh Pandiyan, PW2- Bhaskar and PW3-M.D.Kannan who are the neighbourers of the accused in Austen Garden Apartment depose that, they knew the accused, who has been residing in the same apartment, but, they did not say anything about the incident. PW2 and PW3 were treated as hostile witnesses and cross-examined by the prosecution. Inspite of cross-examination, nothing worth elicited from them [PW2 and PW3] with regard to the incident.
16. PW4-Santhosh.S.Jampal-Police Constable deposes that as per the instructions of the SHO, he took the box said to be containing the articles pertaining to the Crime No.550/2013, to FSL, his passport marked as per Ex.P3 and Acknowledgement given by FSL is marked as per Ex.P4.
17. PW5-Dr.Dineshrao-Professor of FSL, Madiwala, Bengaluru deposes that, on 27.8.2013 Peenya police brought the victim girl aged 16 years old for medical examination alleging history of sexual assault, he referred the victim girl to OBG and Dr.Sowmya and Dr.Padmashree examined the victim girl, after examining the genital organs, it reveled that, the hymen was not in-tact, but, it is stated that, there was no evidence of Sexual intercourse and there was no evidence of previous forcible penetrative sexual assault, Examination Report is marked as per Ex.P5 and consent form is marked as per Ex.P6.
9 Spl CC No.263/201318. PW6-Arogyamma.B, Co-ordinator of SJPU, deposes that, on 26.8.2013, she had gone to Peenya Police Station in the evening about 6 P.M., to 6.30 P.M., as per the request made by Peenya Police, wherein the victim girl was there and she did counseling of the victim girl, the victim girl knew only Hindi language and she questioned her in Hindi language and the victim girl has given statement, which was translated by WPC into Kannada Language and the statement of the victim girl is marked as per Ex.P10, during the counseling, the victim girl stated that, since 3 to 4 months, she [Victim girl] has been residing at Austin Garden Flat along with her father, step-mother and step-brother and sister, her father had 2 wives, her mother by name Reena Singh is the 1st wife, as there was no understanding between her father and her mother, her mother has been residing in her parents house, thereafter, her father married 2nd wife, she studied upto 10th standard at her grand-parents house, her own brother and sister have been residing with her grand-parents, 3 months prior to the date of incident, the accused brought her to Bengaluru assuring her that he will admit her to college, but, he did not admit her to college, when she enquired with her father, he told her that he has no interest to send her to college and he is more interested on her body, he used to touch her private parts, inspite of her requested not to do like-so, he would not listen to her, that on 17.7.2013 when her step-mother went to the office, she and maid servant were alone in the house, her step-brother and sister had been to school, her father asked the servant to go to the office and bring the laptop by 6 P.M., when the servant had gone, the accused being her father, came near to her and inserted his hand in her 10 Spl CC No.263/2013 private part and took her to bedroom and threatened her that he will kill if she won't listen to him and saying so, her father committed rape on her, further on some other day, he took her to Shobha Apartment and again committed rape on her, at that time, her servant was also there.
19. PW6 further deposes that on 26.8.2013, the Victim girl was sent to the Sapthagiri Hospital for medical examination through WPC and as that was night, medical examination cannot be conduct, on the next day morning, medical examination of the Victim girl was conducted. At that time, PW6 was present because Victim girl had no parents or guardian. She further deposes that, after medical examination, the Victim girl took her to the spot which is Austin Garden Apartment, Door No.5/F, at 5th Floor and she shown the bedroom, and told that, on that bed her father committed rape on her. She further deposes that, Mahazar drawn in the said place and at the time of mahazar, police collected bed spread and bed cover. She further deposes that, thereafter Victim girl took them to Shobha Apartments, 3rd Block, 8th Floor and that house was vacant, wherein Victim girl shown a room and in the said room, there was a carpet, Victim girl told that, on that carpet, the accused committed rape on her and on that carpet there were hairs, which were long hairs and Victim girl identified that the said hairs were of her and police collected the said hairs and carpet and drawn the mahazar. She further deposes that, thereafter the Victim girl was sent to children's home.
11 Spl CC No.263/201320. PW7- B.N.Lohith- Police Inspector deposes that 20.6.2013, when he was in Police Station, the complainant/Victim girl came to the Police Station and as the complainant was minor, he called SJPU Coordinator-Arogyamma-PW6, for counseling the Victim girl and Victim girl gave statement in Hindi Language, which was translated by PW6 written by WPC and the said statement is treated as Complaint as per Ex.P10 and on the basis of the said complaint, he registered a case in Cr.No.550/2013 and sent FIR as per Ex.P11. He further deposes that, the Victim girl was sent to Children's Home i.e., Paraspara Trust and on the same day, he secured the accused and produced before the PI and given Report as per Ex.P12.
21. On the basis of the evidence of the aforesaid witnesses, learned Public Prosecutor submitted his arguments. He argued that the accused herein who is the father of the Victim girl committed rape on her and considering the evidence of the Prosecution witnesses he may be convicted.
22. On the other hand, the learned defence counsel argued that, the material witnesses in the present case are the victim girl, her maid servant and they are not examined by the prosecution. Moreover, even in the evidence of the Doctor, though it is mentioned that, hymen was not in-tact, it was mentioned that there was no penetrative sexual assault on the Victim girl and there was no recent sexual intercourse. Therefore, it is argued that prosecution has failed to prove the guilt of the accused. Further, it 12 Spl CC No.263/2013 is also argued that, this accused has been falsely implicated for the reason that there was matrimonial dispute between his 1st wife who is none other than the mother of the Victim girl and further there is criminal case against his father-in-law, who is the grandfather of the Victim girl and thereby, false complaint is filed against this accused. Hence, learned defence Counsel submitted that, the accused is entitled to an acquittal.
23. After going through the submissions of the learned Public Prosecutor and learned defence Counsel and on perusal of the evidence led by the prosecution, in this case, it discloses that, except the evidence of police officials, Doctor and co-ordinator of SJPU, the prosecution has not examined the Victim girl. Though the neighbourers of the accused were examined, they did not support the prosecution case. On analyzing the evidence of the prosecution witnesses, as rightly argued by the learned defence Counsel that the Victim girl herself not examined in this case, even the medical report of the Victim girl, it is mentioned that no penetrative sexual assault on the victim girl, though the prosecution examined the witnesses PWs-1 to 7, as the Victim girl herself not stepped into the witness box and deposed with regard to the incident that the accused committed rape on her, in the absence of evidence of the Victim girl, which is material to prove the guilt of the accused, only on the basis of evidence of PWs-1 to 7, conviction cannot be based. For all these reasons, this court is of the opinion, the prosecution has failed to prove the guilt of the 13 Spl CC No.263/2013 accused beyond any reasonable doubt. Accordingly, I answer Point No.1 in the Negative.
24. POINT NO.2: In view of my aforesaid discussions, I proceed to pass the following ORDER In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is acquitted of the offences punishable under Sec.376(2)(c) of IPC and under Secs. 5(l), (n) r/w Sec.6 of POCSO Act, 2012. His bail bond and surety bond obtained earlier stands cancelled. However, the bail bond and the surety bond executed by the accused on 6.12.2016 in compliance with Sec.437[A] of Cr.P.C shall be in force for a period of 6 Months from the date of this Judgment.
[Dictated to the Stenographer partly and directly on the compute, corrections carried out then pronounced by me in the Open Court on this the 14th day of December 2016).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Rajesh Pandiyan CW6 6.8.2014 Pw.2 Bhaskar CW7 6.8.2014 14 Spl CC No.263/2013 Pw.3 M.D.Kannan CW5 10.5.2016 Pw.4 Santhosh.S.Jampal CW12 27.10.2016 Pw.5 Dineshrao CW15 16.11.2016 Pw.6 Arogyamma.B CW11 16.11.2016 Pw.7 B.N.Lohith CW16 29.11.2016 Documents marked for the prosecution: Ex.P1 Statement of PW2 Ex.P1[a] Relevant portion of Ex.P1 Ex.P2 Statement of PW3 Ex.P3 Passport given to PW4 to go to FSL for giving the seized articles Ex.P4 Acknowledgement given by FSL to PW4 for having received the seized articles Ex.P5 Examination of victim Ex.P5(a) Signature of PW5 Ex.P6 Victim Estimation-Consent Form Ex.P7 Examination of accused Ex.P7(a) Signature of PW5 Ex.P8 Accused examination-Consent Form Ex.P9 Report given by Deepak Kumar-Police constable [Ex.P9 marked with consent] Ex.P10 Statement of the victim girl before the complainant Police Station Ex.P10(a) Signature of PW6 Ex.P10(b) Signature of the victim girl Ex.P10(c) Signature of PW7 Ex.P11 FIR 15 Spl CC No.263/2013 Ex.P11(a) Signature of PW7 Ex.P12 Report given by PW7 Ex.P12(a) Signature of PW7
Witness examined and documents marked for the accused: NIL.
LIV Addl., City Civil & Sessions Judge, Bangalore.
16 Spl CC No.263/201314.12.2016 Accused present.
Judgment pronounced in open court:[ Vide separate detailed Judgment] In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is acquitted of the offences punishable under Sec.376(2)(c) of IPC and under Secs. 5(l), (n) r/w Sec.6 of POCSO Act, 2012. His bail bond and surety bond obtained earlier stands cancelled. However, the bail bond and the surety bond executed by the accused on 6.12.2016 in compliance with Sec.437[A] of Cr.P.C shall be in force for a period of 6 Months from the date of this Judgment.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
17 Spl CC No.263/2013