Bangalore District Court
State By R.T.Nagar Police Station vs Amjad Pasha on 5 February, 2018
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the 31st day of January, 2018
Present: SMT.YADAV VANAMALA ANANDRAO., B.Com. LL.B.[Spl.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO.464/2014
COMPLAINANT: State by R.T.Nagar Police Station,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Amjad Pasha
Son of late Pyaru Bhai @ Yusuf Khan
Aged about 35 years
Residing at No.883, 3rd Cross
Dasappa Garden
Appanna Block,
Chamundinagara
Bangalore-32.
[By Advocate Sri. L.B.Ramesh]]
1. Date of commission of offence 16.08.2014
2. Date of report of occurrence of the 21.08.2014
offence
3. Date of arrest of accused 21.08.2014
4. Date of release of accused [on bail] 26.11.2014
5. Period undergone by the accused in 05 Days and 3 Months
the judicial custody.
2 Spl CC No.464/2014
[On 31.1.2018, on the date of
judgment, the accused was taken
to the judicial custody, as he was
convicted for the offence coming
under the definition clause of
Sec.11 of POCSO Act, 2012,
punishable under Sec.12 of POCSO
Act, 2012 and on 5.2.18 sentenced
under Sec.12 of POCSO Act, 2012]
6. Date of commencement of evidence 18.12.2017
7. Date of closing of evidence 08.01.2018
8. Name of the complainant Kaleem Pasha, complainant as well
as the maternal uncle of the victim
girl
9.. Offences complained of Secs. 376, 506 of IPC and under
[as per the charge-sheet] Secs. 5(n) r/w 6 of POCSO Act,
2012
10. Opinion of the Judge The accused is convicted for the
offence coming under the definition
clause of Sec.11 of POCSO Act,
2012, punishable under Sec.12 of
POCSO Act, 2012 and sentenced
under Sec.12 of POCSO Act, 2012.
JUDGEMENT
The Police Inspector, R.T.Nagar police station has filed charge-sheet against the accused for the offences punishable under Secs. 376 and 506 of IPC and under Secs.5(n) r/w 6 of POCSO Act.
2. The prosecution case in brief is that:
During the year 2014 the Victim girl/CW2 whose parents (father and mother) were dead, was residing with her grand mother (father's mother) and the accused who is the brother of father of the victim girl with his family was also residing with his mother i.e., the victim girl's grandmother and taking care of the family and victim/CW2 in House No.882 (883), 3rd Cross, Dasappa Garden, Appanna Block, Chamundinagara, Bangalore and on 3 Spl CC No.464/2014 16-08-2014 when nobody else were there in the house except victim/CW2 at 11.30 p.m., the accused took her in to the room laid her on the cot, removing her clothes, forcibly had committed aggravated penetrative sexual assault on her knowingly that she was minor and against her will and also committed criminal intimidation by giving her life threat if she discloses the said act to anybody else and on the next day in the morning also threatened her of said dire consequences and left her near the house of CW1(complainant) by taking her on the two wheeler. The Investigating Officer has collected the materials and filed the charge sheet against the accused. The Investigating Officer has undertaken investigation and arrested the accused and recorded the statement of the victim girl and collected materials and filed charge-sheet against the accused. Cognizance was taken. The accused was granted with bail.
3. Initially this case was made over to this court CCH:55. As per the Notification, No. ADM-I (A)/ 614/2017, of the Office of the city Civil Court, Bengaluru, dated:4.8.2017, with effect from the afternoon of 5.8.2017, now, the case is before this Child Friendly Court, Bengaluru Urban District, for disposal.
4. The accused is represented by the counsel of his choice. After appearance of the accused, the copies of the prosecution papers [charge-sheet] was furnished to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
4 Spl CC No.464/20145. After hearing the learned Public Prosecutor and the learned counsel for the accused, this court has framed the Charge on 23.04.2016 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed the trial.
6. To prove the case, the prosecution has examined PWs-1 to 6 witnesses, out of total 15 charge-sheet witnesses and placed reliance on Exs.P1 to P13 documents and Material Objects as per MOs-1 to 3. After recording the evidence of the prosecution witnesses, the statement of the accused under Sec.313 of Cr.P.C. has been recorded. The accused has denied all the incriminating evidence available against him, but he has not adduced evidence.
7. Accordingly the arguments of the learned Public Prosecutor and the learned counsel for the accused Perused the oral and documentary evidence and the record on hand. Following Points are formulated for consideration:
1. Whether the prosecution has proved beyond all reasonable doubt that the accused being the uncle of victim minor girl on 16-08-2014 at about 11.30 p.m., when she was alone in the house, the accused took her inside the room and forcibly committed rape on her by remove her clothes having knowledge that she was minor girl and you the accused was her uncle residing in the same house and thereby, the accused has committed an offence of aggravated penetrative sexual assault on the victim girl coming within the definition Clause of Sec.5(n) of POCSO Act, 2012 punishable under Sec.6 of POCSO Act, 2012 r/w Sec.376 of IPC?5 Spl CC No.464/2014
2. Whether the prosecution has further proved beyond all reasonable doubt that on the same date, time and place, the accused has committed rape on minor girl and gave life threat if she discloses the same fact to anybody else he would kill her and thereby the accused has committed an offence punishable under Sec.506 of IPC?
3. What Order?
On the basis of the materials placed on record and the evidence on record, it is in the interest of justice, as it warrants to formulate, the following Additional Point No.1 is formulated:
"Additional Point NO.1: "Whether the prosecution has proved that, the accused has committed the offence of sexual harassment against the victim girl in his house located in 3rd Cross, House No.883, Dasappa Garden, Appanna Block, Chamundinagar, Bangalore on 16.8.2014 during the night and earlier to it and left the victim girl near the house of PW4/CW3-the maternal grandmother of the victim girl, on 17.8.2014 during the morning hours, thereby committed the offence coming with the purview of Sec.11 of POCSO Act, 2012 and punishable under Sec.12 of POCSO Act, 2012"?
8. My findings on the above points are as under:
Point No.1 and 2: In the NEGATIVE Additional Point No.1: In the AFFIRMATIVE Point No.3: As per the final order, for the following:
REASONS
9. POINTS-1 AND 2 AND ADDITIONAL POINT NO.1:- As these Points are inter-linked with each other, hence, they are taken 6 Spl CC No.464/2014 up for common consideration to avoid repetition of facts and circumstances to be discussed. It is the specific allegation that "during the year 2014 the Victim girl/CW2 whose parents (father and mother) were dead, was residing with her grand mother (father's mother) CW3 and the accused who is the brother of father of viz., uncle) with his family was also residing with CW3 and taking care of the family and victim/CW2 was residing with them in House No.882 (883), 3rd Cross, Dasappa Garden, Appanna Block, Chamundinagara, Bangalore - 32 and on 16-08-2014 the accused left his wife to her parental house on account of spraying of bedbug medicine (wUÀuÉ OµÀ¢ü), on the same day he left his mother (grandmother of victim girl) at 10.00 p.m., to her sister's house as she was ailing and the victim girl was alone in the house and not anybody else and the accused return to the house at 11.30 p.m., the accused took her in to the room laid her on the cot, removing her clothes, forcibly had committed penetrative sexual assault on her knowingly that she was minor and against her will and also committed crime intimidation by giving her life threat if she discloses the said act to anybody else and on the next day in the morning also threatened her of said dire consequences and left her near the house of CW1(complainant) by taking her on the two wheeler".
10. The initial burden is casted upon the prosecution to prove the case alleged against the accused. Only when the prosecution discharges the initial burden then the court shall arise the statutory presumption as contemplated u/Sections. 29 and 30 of POCSO Act; with reference to the present case on hand; "(a) the 7 Spl CC No.464/2014 offence coming within the definition Section 5 of the Act, and presume that the person has committed the offence charged against him unless contrary is proved, as per Section 29 of POCSO Act, 2012;
(b) and also regarding the presumption of culpable mental state is that, the court has to presumption the existence of such mental stage of the accused and which shall be subject to a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as offence in that prosecution". Hence, the court has to evaluate the materials placed by the prosecution as to the proof of guilt of the accused beyond all reasonable doubt.
11. In proof of the material facts, the prosecution has adduced the evidence of PW1[CW2] who is none other than the victim girl; PW2[CW5] who is the sister of the complainant/CW1; PW3[CW1] is the maternal uncle of the victim girl who is none other than the complainant; PW3[CW3] is the grandmother of the victim girl i.e., the mother's mother of the victim girl; PW5[CW4] is the brother of the complainant i..e, maternal uncle of the victim girl and PW6 [CW15] is the Investigating Officer who has conducted the investigation and filed the charge-sheet after completing the investigation. He also placed reliance on the documents i.e. Ex.P1- Statement of the victim girl under Sec.164 of Cr.P.C given before the Learned Magistrate; Ex.P2-Statement of PW1, Ex.P3- Statement of PW2, Ex.P4- Complaint dated: 21.8.2014 lodged by the complainant; Ex.P5- Xerox copy of the spot mahazar; Ex.P6- Marked portion of statement of PW4; Ex.P7-Marked Portion of statement of PW5; Ex.P8-FIR; Ex.P9-Original spot Mahazar; Ex.P10-Report given by the Head constable of the complainant police station to the 8 Spl CC No.464/2014 Investigating Officer; Ex.P11- Medical Report of the victim girl; Ex.P12-Medical Report of the accused and Ex.P13-Certificate issued by Certificate issued by Subhash Memorial Engineering High School where the victim girl is studying showing her date of birth as 15.7.2001.
12. There is no dispute regarding the relationship between the victim girl and the accused i.e., the accused is the younger brother of the victim girl's father and the relationship of PWs-2 to 5 with the victim girl-PW1 as referred above is admitted. It is also not in dispute that, during the year 2014, as the mother and father [parents of the victim girl] died, she was residing in her grand- mother's house i.e., the mother of her father and that, the brother of the victim girl was residing along with CW3 [PW3] i..e, the mother's mother of the victim girl and that the victim girl was under
the care and custody of the accused, as the mother of the accused took the victim girl to the house of the accused and thus, there is also no dispute that the victim girl was under the care and custody of the accused.
13. But, with reference to the prosecution case regarding the material issue that, the accused had committed the offence falling within the purview of Sec.5(n) of the POCSO Act, 2012 that, "in the absence of his mother and wife in his house, on the date of the incident during the night, after he returning back to his house, after leaving his mother at 11.30 P.M., he [accused] took the victim girl inside his room and committed penetrative sexual assault on her, which is in aggravated form". As because Sec.5(n) of POCSO Act, 9 Spl CC No.464/2014 2012 refers to the offence committed by a person on the child [penetrative sexual assault] whoever being the relative of the child through blood or guardianship or having domestic relationship with the child or who is living in the same or staying at the household of the child etc. As the accused being the brother of the father of the victim girl and the allegation is about committing of rape on the victim girl and he [accused] stands on the footing of guardianship, as the victim girl was taken to his house through his mother and taking care.
14. But, it is pertinent to note that, though the case is on the allegation of sexual assault on the victim girl, by the accused, the very victim girl/PW1 has not supported the prosecution case and she turned hostile to the material fact coming within the purview of definition Clause of Sec.5(n) of POCSO Act, 2012 as she [victim girl] has denied that, the accused has committed rape on her under such situation on the said date of incident. Even during the cross-examination also, she denied the suggestion of learned Public Prosecutor in this regard.
15. So also PWs-2 to 5 have also totally turned hostile to the prosecution case in connection with the alleged offences coming within the purview of definition Clause of Sec.5(n) of POCSO Act, 2012, as referred above, as these witnesses have not supported the prosecution case and denied the suggestion, after they being declared as hostile witnesses on the prayer of the learned Public Prosecutor and on putting suggestion by him regarding the facts narrated during the course of investigation by these witnesses, i.e., 10 Spl CC No.464/2014 regarding committing of rape on the victim girl, they [PWs-2 to 5] have specifically denied that, the accused has committed such an act on the victim girl. Thus, these material witnesses [PWs-1 to 5] have not supported the case of the prosecution in connection with the offence committed by the accused on the victim girl. Even they have specifically denied the contents of their respective statements leading to the guilt of the accused.
16. PW1/victim girl though stated about the statement given by her before the Learned Magistrate under Sec.164 of Cr.P.C, as per Ex.P1, but, the victim girl denied the contents of Ex.P1, as she had no remembrance what she had stated before the Learned Magistrate, but, she stated that, it was given as per the say of the police. Therefore, the contents of Ex.P1 have not been supported by the victim girl that, she herself gave such statement before the Learned Magistrate. Ex.P2 is the portion of statement of the victim girl given before the Investigating Officer. But, she denied that such a statement given before the Investigating Officer, during the course of her cross-examination treating her [PW1] as hostile witness. Thus, the contents of Ex.P2 with reference to the alleged rape on her person by the accused has not been supported.
17. PW3 being the complainant, has admitted his signature on the complaint which is at Ex.P4. But, he has turned hostile to the prosecution case regarding the incident narrated to by the victim girl that, the accused has committed rape on PW1/victim girl as revealed in the complaint as per Ex.P4. In this connection, his [PW3] version which is not rebutted by the defence side, has 11 Spl CC No.464/2014 some relevancy to appreciate his evidence with reference to the behaviour of the accused with the victim girl, though he [PW3] has not supported the material fact of committing of rape on the victim girl. It is also notable point that, this witness was signatory to the mahazar as per Ex.P5. But, he [PW3] denied that his signature on Mahazar-Ex.P5 was taken in the police station. Since the original copy of the Mahazar was not made available in the file and as the advocate for the accused having no objections to mark the Xerox attested copy of the mahazar, it was marked at Ex.P5. However, this witness has deposed that, after filing of the compliant, the police took him to the house of the accused in connection with the spot mahazar. But, he denied that, spot mahazar was done by the Investigating Officer in his presence at the house of the accused. In this connection, he [PW3] turned hostile to the prosecution case regarding the place of committing of sexual assault on the victim girl.
18. Now it is pertinent to note the evidence of PW6 i..e, the Investigating Officer. He has spoken to about conducting of investigation with due procedure and performed his duty on receiving the complaint-Ex.P4 and registering case in Cr.No.225/2014 and he has sent the FIR to the jurisdictional court and it is at Ex.P8. He has conducted the mahazar of the spot in the presence of CWs-7 and 8 and mahazar is at Ex.P5. He recovered the material objects from the place of incident as per MOs-1 to 3. During the course of investigation of the Investigating Officer, as the original Mahazar was made available, the same is marked as Ex.P9. He [Pw6] sent the victim girl with the staff for medical 12 Spl CC No.464/2014 examination to Dr.Ambedkar Medical Hospital. He deputed his staffs CWs-10 to 12 for apprehending the accused. They [CWs-10 to 12] apprehended the accused and produced before him [PW6] and he took the custody of the accused by following the due procedure and CW10 gave his Report as per Ex.P10. He [PW6] has identified the accused before the court during his evidence. He has recorded the statements of CWs-11 and 12. He recorded the statement of the victim girl as per Ex.P2 and CW5 gave statement as per Ex.P3 and he recorded the statement of CW14 for having subjected the victim girl for medical examination. He sent the accused along with CW13-the police staff for medical examination. He[CW13] took the accused to Ambedkar Medical Hospital and after completing the medication examination, he [CW13] brought back the accused to the police station and produced before him [Pw6]. Thereafter, the accused was produced before the court and he was taken to the judicial custody. On 23.8.2014, he [PW6] recorded the statement of CW3 as per Ex.P6. On 28.8.2014, with due permission of the court, he [PW6] subjected the victim girl for recording of her statement before the Learned Magistrate under Sec.164 of Cr.P.C. He also secured materials in connection with the date of birth of the victim girl from CW6 by sending requisition to Subhash Memorial English School where the victim girl was studying. On 1.9.2014, he received the medical reports of the victim girl and the accused. The medical report of the victim girl is marked as per Ex.P11 and that of the accused is marked as Ex.P12. He has received the school records of the victim girl as per Ex.P13. On 16.10.2014, as the investigation was completed, he filed charge-sheet against the accused.
13 Spl CC No.464/201419. Thus, PW6 has spoken about his investigation process till filing of the charge-sheet with reference to the materials collected. But, as the very material witnesses [PWs-1 to 5] have turned hostile to the prosecution regarding the material fact of committing of rape by the accused on the victim girl, therefore, without corroboration, his [PW6] evidence with reference to committing of rape, has no consideration, as the defence counsel has denied the material allegations regarding the statements of PWs-1 to 5 and the documents referred above with reference to committing of rape by the accused on the person of the victim girl, so also with reference to the recording of statement before the Learned Magistrate of the victim girl, as it has been created etc. So, his [PW6] evidence about investigation process regarding alleged rape, do not support the prosecution case.
20. At this stage, it is relevant to consider the gist of the prosecution case as the victim girl and PWs-2 to 5 have specifically stated about the torture amounting to sexual harassment during the stay of the victim girl in the house of the accused on the earlier days and on the alleged date of incident during the night. The fact that, the accused was also in his house as he returned back to his house after leaving his mother to the house of the sister of his mother on the ground of illness of his mother's sister and his[accused] wife had gone to her parents house and there were only the victim girl and the accused, in the house of the accused. The evidence was placed on record at the time of trial through the mouth of these witnesses [ PWs-1 to 5] that, the accused forcing 14 Spl CC No.464/2014 the victim girl to do the household work and beating her and the victim girl was left by the accused nearby the house of CW3 i.e., on the road and she came to the house of PW4[CW3], which refers to the arrival of the victim girl to the house of PW4 on 17.8.2014, in the morning hours. Therefore, the relevant portions of the evidence of the respective witnesses and the victim girl are reproduced and they are relevant. As these facts are not seriously disputed nor rebutted by the defence and therefore, they are relevant to consider that, though the prosecution has not proved the case against the accused about committing of rape by the accused on the victim girl with cogent evidence; but, these materials in the form of evidence on oath brought on record, certainly supports the prosecution case in connection with the sexual harassment on the victim girl by the guardian[accused] of the victim girl, under whose custody the victim girl was taken care of, which falls within the purview of definition Clause of Sec.11 of POCSO Act, 2012 punishable under Sec.12 of POCSO Act, 2012.
21. The relevant portions of evidence of each of these [Pws-1 to 4] witnesses are reproduced here for consideration:
PW1/victim girl in her evidence during her chief examination has stated thus:
"FUÀÉÎ 3 ªÀµÀðUÀ¼À »AzÉ DgÉÆæ ªÀÄvÀÄÛ DgÉÆæAiÀÄ ºÉAqÀw CfÓAiÀÄ ªÀÄ£ÉAiÀÄ°è £À£ÀUÉ ºÉaÑ£À PÉ®¸À ªÀiÁqÀ®Ä ºÉüÀÄwÛzÀÝgÀÄ, F «µÀAiÀĪÀ£ÀÄß £Á£ÀÄ £À£Àß vÁ¬ÄAiÀÄ vÁ¬ÄUÉ w½¹zÉ£ÀÄ. CªÀgÀÄ £À£ÀߣÀÄß ¥ÉÇÃ. oÁuÉUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ. C°è £Á£ÀÄ F «µÀAiÀĪÀ£ÀÄß w½¹zÉ£ÀÄ."15 Spl CC No.464/2014
"£Á£ÀÄ £ÁåAiÀiÁ¢üñÀgÀ ªÀÄÄAzÉ K£ÀÄ ºÉýPÉ ¤ÃrzÉÝ CAvÀ £É£À¦®è. ¥ÉÇð¸ÀgÀÄ ºÉÉýPÉÆlÖ ºÁUÉ ªÀiÁ£Àå £ÁåAiÀiÁ¢üñÀgÀ ªÀÄÄAzÉ ºÉýPÉ ¤ÃrgÀÄvÉÛãÉ, »ÃUÁV K£ÀÄ ºÉýzÉ CAvÀ FUÀ £É£À¦®è. ¥ÉÇÃ. oÁuÉAiÀÄ°è £À£Àß «ZÁgÀuÉ ªÀiÁr §gÉzÀÄPÉÆArzÁÝgÉ. DgÉÆæAiÀÄÄ £À£Àß ªÉÄÃ¯É ¯ÉÊAVPÀ zÀËdð£Àå J¸ÀV®è ªÀÄvÀÄÛ ¥ÀÁæt ¨ÉzÀjPÉ ºÁQ®è. DgÉÆæAiÀÄ£ÀÄß £ÉÆÃrzÀgÉ UÀÄgÀÄw¸ÀÄvÉÛãÉ. F ºÀAvÀzÀ°è ªÀÄÄZÀÑ®èlÖ PÀlPÀmÉAiÀÄ°è DgÉÆæAiÀÄÄ EzÀÄÝ, CzÀgÀ ¸ÉèÊqï£ÀÄß ¸Àj¹ ¸ÁQëUÉ vÉÆÃj¸ÀĪÁUÀ ¸ÁQëAiÀÄÄ ¨ÉÃqÀ CAvÀ C¼ÀÄvÁÛ¼É, ªÀÄvÀÄÛ £ÉÆÃr UÀÄgÀÄw¸ÀÄvÁÛ¼É. F ºÀAvÀzÀ°è £ÉÆAzÀ¨Á®QAiÀÄÄ zÀÄBRvÀ¥ÀÛ¼ÁV vÀ£Àß £ÉgÀ«UÉ ZÁ¸Á-5 CAzÀgÉ £ÉÆAzÀ¨Á®QAiÀÄ vÁ¬ÄAiÀÄ vÀAVAiÀÄ£ÀÄß PÀgÉAiÀÄ®Ä PÉÆÃgÀÄvÁÛ¼É. DzÀÝjAzÀ ZÁ¸Á-5 gÀªÀgÀ£ÀÄß CªÀ¼À £ÉgÀ«UÉ PÀj¸À¯Á¬ÄvÀÄ."
During her cross-examination on treating her hostile witness on request and putting suggestions by the learned Public Prosecutor, she gave crucial admission that:
"¢B 16.08.2014 gÀAzÀÄ DgÉÆæAiÀÄÄ wUÀuÉ OµÀ¢ü ºÉÆqÉAiÀĨÉÃPÉAzÀÄ ºÉý DgÉÆæAiÀÄ ºÉAqÀw-aPÀ̪ÀÄä CªÀg£À ÀÄß CªÀgÀ vÀAzÉAiÀÄ ªÀÄ£ÉUÉ ©lÄÖ §AzÀgÀÄ, CzÉà ¢£À gÁwæ 10 UÀAmÉUÉ £À£Àß CfÓAiÀÄ vÀAVUÉ ºÀĵÁj®è JAzÀÄ CªÀgÀ vÀAVAiÀÄ ªÀÄ£ÉUÉ ©lÄÖ §AzÀgÀÄ, D ¢£À £Á£ÀÄ ªÀÄvÀÄÛ DgÉÆæ E§âgÉà ªÀÄ£ÉAiÀÄ°è EzÉݪÀÅ JAzÀgÉ ¸Àj. "
PW2 in her evidence during her chief examination has stated thus:
"CªÀ¼À vÀAzÉ vÁ¬Ä wÃjPÉÆAqÀ £ÀAvÀgÀ £ÉÆAzÀ¨Á®Q £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è EzÀݼÀÄ. £ÀAvÀgÀ £ÉÆAzÀ¨Á®QAiÀÄ£ÀÄß DgÉÆæAiÀÄ vÁ¬Ä vÀ£Àß ªÀÄ£ÉUÉ( DgÉÆæAiÀÄ ªÀÄ£ÉUÉ ) PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ."
£ÉÆAzÀ¨Á®QUÉ DgÉÆæ ªÀÄvÀÄÛ DvÀ£À ºÉAqÀw PÉ®¸À ªÀiÁqÀÄ CAvÀ MvÁÛAiÀÄ ªÀiÁqÀÄwÛzÀÝgÀÄ, PÀÉ®¸À ªÀiÁqÀ¢zÀÝgÉ ºÉÆqÉzÀÄ UÀzÀj¸ÀÄwÛzÀÝgÀÄ. »ÃUÁV £ÉÆAzÀ¨Á®Q-¥Áæ¸Á-1 ZÁ¸Á-3 gÀªÀgÀ ªÀÄ£ÉUÉ §AzÀÄ F «µÀAiÀÄ w½¹zÀ¼ÀÄ."
16 Spl CC No.464/2014During her cross-examination on treating her hostile witness on request and putting suggestions by the learned Public Prosecutor, she gave answer thus:
"F §UÉÎ £Á£ÀÄ ¢B 22.08.2014 gÀAzÀÄ £À£Àß ºÉýPÉÉAiÀÄ£ÀÄß vÀ¤SÁ¢üPÁjAiÀÄ ªÀÄÄAzÉ ¤¦-2 gÀAvÉ ¤ÃrgÀÄvÉÛB£É JAzÀgÉ ¸ÀjAiÀÄ®è. (F ºÀAvÀzÀ°è ¤¦-2 gÀ «µÀAiÀĪÀ£ÀÄß ¸ÁQëUÉ ¥Ánà ¸ÀªÁ°£À°è PÉüÀĪÁUÀ ¸ÁQë zÀÄBRvÀ¥ÀÛ¼ÁUÀÄvÁÛ¼É ªÀÄvÀÄÛ £ÁåAiÀiÁ®AiÀÄ¢AzÀ ¨ÉÃUÀ ºÉÆgÀUÀqÉ PÀ¼ÀÄ»¸À®Ä «£ÀAw¹PÉƼÀÄîvÁÛ¼É). "
PW3 in his evidence during chief examination has stated thus:
"£À£Àß vÀAzÉ CPÀÌ CAzÀgÉ DgÉÆæAiÀÄ vÁ¬Ä £ÉÆAzÀ¨Á®Q ªÀÄvÀÄÛ CªÀ¼À ¸ÀºÉÆÃzÀgÀ£À£ÀÄß vÀ£ÉÆßA¢UÉ CªÀgÀ ¥Á®PÀgÀÄ wÃjPÉÆAqÀ £ÀAvÀgÀ PÀgzÉ ÀÄPÉÆAqÀÄ vÀ£Àß ªÀÄ£ÉAiÀÄ°è ElÄÖPÉÆArzÀݼÀÄ. DgÉÆæAiÀÄÄ vÀ£Àß vÁ¬ÄAiÉÆA¢UÉ PÀÄlÄA§ ¸ÀªÉÄÃvÀ ªÁ¸ÀªÁVzÀÝ£ÀÄ. CªÀgɯÁè ªÀÄPÀ̼À ¥Á®£É ¥ÉÇõÀuÉ ªÀiÁqÀÄwÛzÀÝgÀÄ.
2014 gÀ°è £À£ÀUÉ wAUÀ¼ÀÄ £É£À¦®è MAzÀÄ ¢£À £ÉÆAzÀ¨Á®QAiÀÄ£ÀÄß DgÉÆæ ¸ÀĪÀiÁgÀÄ ¨É¼ÀV£À 10 - 11 UÀAmÉUÉ £ÀªÀÄä ªÀÄ£ÉAiÀÄ ºÀwÛgÀ vÀAzÀÄ ©lÄÖ ºÉÄÁÃzÀ. DgÉÆæAiÀÄÄ JAzÀÆ D jÃw PÀ¼ÀÄ»¹PÉÆqÀzÀ ªÀåQ,Û FUÀ §AzÀÄ F jÃw KPÉ ©lÄÖ ºÉÆÃzÀ CAvÀ D±ÀÑAiÀÄð D¬ÄvÀÄ. £ÁªÀÅ £ÉÆAzÀ¨Á®QAiÀÄ£ÀÄß «ZÁj¸À¯ÁV DgÉÆæAiÀÄÄ ¥Àæw ¢£À vÀ£U À É mÁZÀðgï PÉÆqÀÄvÁÛ£É CAvÀ ºÉýzÀ¼ÀÄ. mÁZïðgï CAzÀgÉ PÉ®¸À ºÉaU Ñ É ªÀiÁqÀ®Ä MvÁ۬ĸÀÄwÛzÀÝ£ÀÄ JAzÀÄ ºÉýzÀ¼ÀÄ. F §UÉÎ £ÁªÉ¯Áè ªÀÄ£ÉAiÀÄ°è ZÀað¹ Dgï n £ÀUÀgÀ oÁuÉUÉ ºÉÆÃV zÀÄÁgÀ£ÀÄß ¸À°è¹zɪÀÅ.
In his cross-examination by the learned defence counsel, he has stated thus:
"£ÉÆAzÀ¨Á®QAiÀÄ vÀAzÉ vÁ¬ÄUÀ¼ÀÄ wÃjPÉÆAqÀ £ÀAvÀgÀ DgÉÆæ ªÀÄvÀÄÛ DvÀ£À ªÀÄ£ÉvÀ£Àzª À ÀgÀÄ £ÉÆAzÀ¨Á®Q ªÀÄvÀÄÛ CªÀ¼À CtÚ¤UÉ D¹ÛPÉÆnÖ®è JAzÀgÉ ¸Àj. DgÉÆæAiÀÄÄ £ÉÆAzÀ¨Á®QUÉ JAzÀÆ mÁZÀðgï ªÀiÁr®è JAzÀgÉ ¸ÀjAiÀÄ®è. £Á£ÀÄ DgÉÆæAiÀÄÄ £ÉÆAzÀ¨Á®QUÉ mÁZÀðgï PÉÆnÖzÁÝ£É JAzÀÄ ¸ÀļÀÄî ¸ÁQë ºÉüÀÄwÛzÉÝÃ£É JAzÀgÉ ¸ÀjAiÀÄ®è".17 Spl CC No.464/2014
PW4 in her evidence during the chief-examination, which is undisputed by cross-examination as the defence that there is no cross-examination. Therefore, it is material to reproduce here which reads thus:
"DgÉÆæAiÀÄÄ PÉ®¸ÀzÀ ¸ÀA§AzÀszÀ°è £ÉÆAzÀ¨Á®QUÉ »A¹¸ÀÄwÛzÀÝ CAvÀ ºÉýzÀ¼Ài. EzÀgÀ ºÉÆgÀvÁV £À£ÀUÉãÀÆ ªÀiÁ»w E®è".
22. Thus, it is material to note that, the victim girl and the other material witnesses [PWs-1 to 5] have specifically spoken in unequivocal terms that, the accused was torturing the victim girl and forcing her to do the household work and he used to beat her and also threatening the victim girl under whom she was taken care. Because of that, the victim girl came to the house of her maternal grandmother [PW4/CW3]. The manner in which these witnesses [PWs-1 to 5] have deposed as referred above, are much relevant and there is no rebuttal evidence in connection with the act of the accused, forming an offence which is lower than that of the allegations made against the accused about the sexual assault on the victim girl during investigation. Therefore, it is considered to be a proved fact, which is amounting to sexual harassment. By, considering these materials on record, with reference to attracting the provision of definition Clause of Sec.11 of POCSO Act, 2012 punishable under Sec.12 of POCSO Act, 2012, the material Point has to be framed with reference to this offence also. Accordingly, it is formulated at Page No.5, Para No.7 of this Judgment. Hence, it is held that the prosecution has failed to prove the guilt of the accused in connection with committing of rape, as the point formulated 18 Spl CC No.464/2014 under Sec.6 of POCSO Act, 2012 r/w Sec.376 of IPC. But, it is necessary to consider the Additional Point as prosecution has placed relevant materials which are duly considered, whether it has proved that, the accused has committed the offence of sexual harassment against the victim girl in his house located in 3rd Cross, House No.883, Dasappa Garden, Appanna Block, Chamundinagar, Bangalore on the particular date and earlier to it and hence, the victim girl came to the house of PW4/CW3-the maternal grandmother on 17.8.2014 during the morning hours. In this regard, it is further evaluated, as because these facts are not challenged and disputed to disbelieve the same. Nor defence side has rebutted the same.
23. It is therefore, pertinent to note that, though the victim girl did not disclosed inspite of asking and putting suggestions that on that particular date of incident in the night, the accused [her uncle] had committed penetrative sexual assault on her. However, she [victim girl] denied it specifically. But, her evidence as reproduced above and her conduct and mental state while giving evidence would speak much more that, she was tortured by the accused, his wife and his mother by forcing her to do the work [ the victim girl was minor having no father and mother and was brought by them, under the guise of taking care], she [victim girl] told the same to her grandmother [CW3] and CW3 told about lodging of complaint and she was taken to the police station. The mental condition and conduct of the victim girl as seen by this court while recording the evidence which has been recorded on 18.12.2017 which was natural [as because the defence side did not 19 Spl CC No.464/2014 cross-examined her on any of the portions of her evidence] that, she did not want to see the accused while he was shown to her by removing the slide of the accused covered platform in the court hall. The victim girl wept saying that, let him[accused] not to show to her. However, she identified the accused and she requested her mother's sister [CW5] to be with her for her support at that juncture and CW5 was called inside the court hall. The victim girl was extremely emotional and weeping. On treating her hostile at the request of the learned Public Prosecutor, the specific and un-rebutted evidence of PW1/victim girl was brought on record that, she was alone in the house on 16.8.2014 during night at 10 P.M., and onwards. Thus, the victim girl/PW1 and the accused were only in the house on that day. From the evidence of PWs.2- to 5, it is undisputedly evident that, PW1/victim girl was under the care and custody of the accused in his house, as PW1/victim girl was taken by her father's mother to the house of the accused, after the death of her [PW1/victim girl] parents. It is also evident from the evidence of PWs-2 to 4 that, the accused was torturing PW1/victim girl.
24. PW2- the younger sister of the mother of PW1/victim girl deposed which was not rebutted that, the accused took PW1/victim girl to the house of the accused and stated about the threat and torture and that the victim girl/PW1 came to the house of CW3 and narrated it. It is also notable point about the conduct of this witness-PW2 on treating her hostile that, she denied the suggestions put to her by the learned Public Prosecutor that, "She gave statement as per Ex.P2", but, this denial was with sadness 20 Spl CC No.464/2014 and she requested to send her out earlier. Her such conduct and mental condition supported that, the accused gave harassment to PW1/victim girl on that night and that he [accused] was torturing her [PW1] earlier days prior to the incident.
25. PW3-the complainant [brother of the mother of PW1/victim girl] stated specifically, why PW1/victim girl came to the house of CW3 [PW4/grandmother] and what was her condition and how she came there, [It is also crucial aspect to consider the circumstance and the facts relevant leading to the guilt of the accused] that, "One day during the year 2014 was the event (which referred to the day and date and time of incident and fact of leaving her [PW1/victim girl] on the road near the house of CW3[PW4] and hence PW3 expressed the suspicion), that the accused left PW1/victim girl near their house in the morning at about 10 A.M., on 17.8.2014 who [accused] was not expected that, he would do so and why he left her in that manner and he[PW3] and his family members felt wonder and on enquiry, PW1/victim girl disclosed that, he [accused] was torturing her every day. Of-course, he referred the torture that, as per the say of the Victim girl/PW1, that he [accused] was forcing her to do more work in the house and after having discussions, they lodged a complaint. From his [PW3] evidence, the abnormal behaviour of the accused was proved, as because, it has not been rebutted by the defence side stating that, either he did not tortured PW1/victim girl everyday or that, he did not do so or that on that day morning, he did not leave the victim girl/PW1 near the house of PW4[CW3] etc. There is no explanation why he did so, on that day morning; and what was forced him to 21 Spl CC No.464/2014 leave the victim girl/PW1 in the morning at 10 -11 A.M., etc. , as there is no rebuttal and in the absence of explanation, it is supported that, the accused admitted his harassment to the victim girl/PW1. But PW1/victim girl denied the sexual assault. It is therefore, the accused has to explain why he left her near the house of PW4 though he was taking care of the victim girl/PW1. It is also clearly admitted that, the accused and his family members did not give property to the victim girl/PW1 and her brother after the death of her [PW1/victim girl] parents. But, how it comes to the aid of the accused has not disclosed. Nothing can be gathered only from this suggestion to disbelieve that the accused was not harassing the victim girl/PW1. PW4/grandmother's evidence is that, the accused was torturing the victim girl/PW1. PW5 the maternal uncle of PW1/victim girl turned hostile to the prosecution case.
26. This is one of the peculiar case and the court has to consider minutely the crucial aspects, as these material witnesses [PWs-1 to 5] have turned hostile to the prosecution case against the accused about sexual assault on PW1/victim girl; Even they did not explained the exact event on that night i.e., on 16.8.2014. But, from their [PWs-1 to 5] conduct and the manner in which they gave evidence specifically PWs-1 to 4, it is supported the fact of harassment by the accused. It is the PW1/victim girl and the accused to explain when they were alone in the house on that night, as the Medical Report [Ex.P11] dated: 21.8.2014 does not disclose that, the victim girl/PW1 was sexually assaulted. The contents of Ex.P11 reveals that, the victim girl had external 22 Spl CC No.464/2014 injuries, but, she [PW1/victim girl] avoided to give the history to the Doctor, and Cytology Report disclosed "No spermatozoa seen in the smear studied and Hymen was not ruptured or teared". " On local Genital examination, the evidence of signs of recent and prior to it, sexual intercourse is absent and the individual is not used to an act like that of sexual intercourse". Ex.P12 is the Medical Report of the accused. It does not support the prosecution case that, he had committed rape on PW1/victim girl. These documents-Exs.P11 and P12 do not aid the prosecution to hold the accused guilty of the offence of penetrative sexual assault on the victim girl/PW1.
27. But, from the above discussions and evaluating the evidence of PWs-1 to 4, and the circumstances etc., the things themselves speak about sexual intent of the accused apart from torturing PW1/victim girl by forcing her of doing more work that, he took the advantage of loneliness of PW1/victim girl on that day and that on the next day morning, he [accused] took PW1/victim girl and left her near the house of CW3[PW4]. The condition and mental effect of PW1/victim girl which was disclosed at the time of her evidence in the court avoiding to see the accused and her sadness and weeping, itself indicate the pressurization not to disclose as to what had happened on that night. Her [PW1/victim girl] such behaviour coupled with the evidence of harassment earlier days of the accused and leaving PW1/victim girl near the house of CW3[PW4] on the next day morning of the incident, it is nothing but, it was with sexual intent, he [accused] made the victim girl/PW1 stay alone in the house and on the next day morning, he[accused] left her [PW1/victim girl] near the house of 23 Spl CC No.464/2014 CW3[PW4]. From the conduct and condition of PW1/victim girl during her evidence was not normal, but, she was a sadly person and she wept. Even when the accused left her [PW1/victim girl] at the place and she went to the house of PW4, her condition was not that of healthy child. She was harassed by the accused. The circumstances and the things of that date of 16.8.2014 i.e., keeping such child [PW1/victim girl] aged about 13 to 14 years who had lost her parents and was alone during the night and that he [accused] being alone, being such a person of not good to the child, who had to take due care, and that his conduct that, on the next day leaving PW1/victim girl to the house of CW3[PW4] etc., and such acts of the accused, gave implication that, he had sexual intent and hence he made to stay PW1/victim girl in his house during that night. So, it is proved by his [accused] subsequent behaviour of leaving PW1 near the house of CW3[PW4] on the next day morning. If he [accused] did not have sexual intent, he would not have behaved like that, which was expressed by PW3. The accused ought to have disproved that he was not harassing PW1/victim girl . The accused did not disproved the same by rebutting that, he did not harass her [Pw1/victim girl] with sexual intent.
28. So the circumstances and manner in which the evidence placed by the prosecution, though PWs-1 to 5 do not support the case of rape etc., it has abled to prove the lower offence committed by the accused falling within the purview of Sec.11 of the POCSO Act, 2012, i.e., proof of criminal act of "harassment" i.e, (abusing, beating, forcing to do more work and making the girl child [PW1/victim girl] under such an atmosphere of torture, during the 24 Spl CC No.464/2014 night by a man i..e, accused) and the culpable mental state of the accused is evidenced from the proved fact that, the victim girl/PW1 was made to stay alone in the house of the accused on that night. Hence, these facts are established by the prosecution which amounts to sexual harassment, punishable under Sec.12 of POCSO Act, 2012. Hence, the accused is liable to be convicted for the offence coming within the purview of definition Clause No.11 of POCSO Act, 2012 punishable under Sec.12 of POCSO Act, 2012. Accordingly, by answering the Additional Point NO.1 in the Affirmative.
29. POINT NO.3: In the result, I proceed to pass the following:
ORDER Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offence coming within the purview of definition Clause of Sec.11 of POCSO Act, 2012, punishable under Sec.12 of POCSO Act, 2012.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 31st day of January, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.25 Spl CC No.464/2014
5.2.2018 HEARD AND ORDER REGARDING SENTENCE The accused/convict is produced from the judicial custody.
The learned counsel for the accused and the learned Public Prosecutor are present. Heard the learned counsel for the accused and the learned Public Prosecutor on the Sentence. The accused through his learned counsel submitted that, he is having wife and small children, who are depending on him and hence, prayed that, leniency may be shown in imposing the sentence.
On the other hand the learned Public Prosecutor submitted that, the guilt of the accused has been proved and it is heinous in nature committed against the person of the victim girl, who is minor aged about 13 to 14 years and the accused being the care taker of the victim girl, is not entitled for any leniency and maximum sentence and fine has to be imposed.
Therefore, considering the proving of guilt of the accused under the definition Clause of Sec.11 of POCSO Act, 2012 and he is liable for punishment under Sec.12 of POCSO Act, 2012 and considering the arguments of the learned counsel for the accused, it has to be awarded the punishment that, the accused/convict shall undergo imprisonment for a term of 2 years from the date of this order for committing sexual harassment upon the victim girl, who is minor in age, and with fine of Rs.1,05,000/- for the offence punishable under Sec.12 of POCSO Act, 2012. Therefore, I proceed to pass the following:
26 Spl CC No.464/2014SENTENCE The accused/convict shall undergo imprisonment for a term of 2 years and to pay a fine of Rs.1,05,000/- for the offence punishable under Sec.12 of POCSO Act, 2012. In default of payment of fine amount, the accused shall undergo Simple Imprisonment for a term of 3 Months.
After payment of the fine amount of Rs.1,05,000/- by the accused, it is ordered to pay Rs.1,00,000/- to the victim girl as victim compensation and remaining amount of Rs.5,000/- shall be confiscated to the State.
The period of detention undergone by the accused/convict in judicial custody shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
MOs-1 to 3 being worthless are ordered to be destroyed after the appeal period is over.
Copy of this Judgment and order on Sentence shall be supplied to the accused forthwith.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 5th day of February, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.27 Spl CC No.464/2014
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Victim girl CW2 18.12.2017
Pw.2 Salma CW5 18.12.2017
PW.3 Kaleem Pasha CW1 06.01.2018
Pw.4 Ashraf Unnisa CW3 06.01.2018
PW.5 Nadeem Pasha CW4 06.01.2018
PW.6 Raghupathi S M CW15 08.01.2018
Documents marked for the prosecution:
Ex.P1 164 Cr.P.C. Statement
Ex.P1(a) Signature of PW1/victim girl
Ex.P2 Statement of PW1
Ex.P3 Statement of PW2
Ex.P4 Complaint dated: 21.8.2014
Ex.P4(a) Signature of PW3
Ex.P4(b) Signature of PW6
Ex.P5 Xerox copy of the Spot Mahazar
Ex.P5(a) Signature of PW6
Ex.P6 Marked portion of Statement of PW4
Ex.P7 Marked portion of Statement of PW5
Ex.P8 FIR
Ex.P8(a) Signature of PW6
Ex.P9 Original Spot Mahazar
Ex.P9(a) Signature of PW6
Ex.P10 Report of HC 5039
Ex.P10(a) Signature of PW6
Ex.P11 Medical report of the victim girl
Ex.P11(a) Signature of PW6
Ex.P12 Medical Report of the accused
Ex.P12(a) Signature of PW6
Ex.P13 Certificate issued by Subhash Memorial
Engineering High School where the victim girl is studying showing her date of birth as 15.7.2001 Ex.P13(a) Signature of PW6 28 Spl CC No.464/2014 Material Objects marked for the prosecution:
MO-1 Chudidhar Top MO-2 Chudihar Pant of the victim girl/PW1 MO-3 Veil
Witness examined, documents and MOs marked for the accused: NIL [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.29 Spl CC No.464/2014
31.01.2018 Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offence coming within the purview of definition Clause of Sec.11 of POCSO Act, 2012, punishable under Sec.12 of POCSO Act, 2012.
[YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55], SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.30 Spl CC No.464/2014
5.2.2018 Accused produced from judicial custody.
The accused/convict shall undergo imprisonment for a term of 2 years and to pay a fine of Rs.1,05,000/- for the offence punishable under Sec.12 of POCSO Act, 2012.. In default of payment of fine amount, the accused shall undergo Simple Imprisonment for a term of 3 Months.
After payment of the fine amount of Rs.1,05,000/- by the accused, it is ordered to pay Rs.1,00,000/- to the victim girl as victim compensation and remaining amount of Rs.5,000/- shall be confiscated to the State.
The period of detention
undergone by the accused/convict in
judicial custody shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
MOs-1 to 3 being worthless are
ordered to be destroyed after the appeal
period is over.
31 Spl CC No.464/2014
Copy of this Judgment and order on
Sentence shall be supplied to the accused
forthwith.
[YADAV VANAMALA ANANDRAO]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
[CCH:55], SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.