Bangalore District Court
State By J.C.Nagar Police vs Dharmaveer Singh on 12 January, 2017
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH-55)
Dated this the 12th day of January, 2017
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
Spl.C.C.No.154/2014
COMPLAINANT State by J.C.Nagar Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Dharmaveer Singh,
Son of Satvan Singh,
Aged 34 years,
Employee No.13624296-A,
Permanent Address:
Nagalalaka Grama, Pacchwar Anche,
Mahavan Taluk, Mathura District,
Uttara Pradesh State.
Presently residing at:
CHQ, PRTC Quarters,
J.C.Nagara, Bangalore-560 006.
(By Sri.Shaik Saoud -Advocate)
1. Date of commission of offence 25.01.2014
2. Date of report of occurrence 26.01.2014
3. Date of arrest of accused 27.01.2014
2 Spl CC No.154/2014
4. Date of release of accused Judicial custody till today i.e.,
12.1.2017
5. Period undergone in custody 2 years, 11 months and 16 days
by the accused
6. Date of commencement of 30.7.2014
evidence
7. Date of closing of evidence 21.11.2016
8. Name of the complainant Sri.Kom.D.S-father of victim girl
9. Offences complained of Sec.376 of IPC and under Secs. 3
and 4 of POCSO Act, 2012
10. Opinion of the Judge In exercise with the powers
conferred upon me under
Criminal Procedure Code, the
accused is acquitted of the
offences punishable under
Sec.376 of IPC and under
Sec.5(m) r/w Sec.6 of POCSO Act,
2012.
JUDGMENT
Police Inspector, J.C.Nagara Police Station, Bangalore has submitted charge sheet in Crime No.16/2014 against the accused for the offences punishable Under Sec.376 of IPC and under Secs. 3 and 4 of POCSO Act, 2012
2. The prosecution case briefly stated that:
The complainant Sri.D.S.Kom lodged a complaint as per Ex.P6 alleging that, on 25.1.2014 while he was on official duty at PRTC RP Gate, Bengaluru around 18.30 Hours, his wife left his 3 Spl CC No.154/2014 daughter/victim child with him and went to buy vegetables at near by shop on J.C.Nagar, Bengaluru, he had to deposit visitors book and reception keys to night guard commander at gate, so he being in uniform handed over his child to the accused and went to deposit the keys and after he returned, he noticed that, his daughter/victim child was crying and terrified and the child quickly grabbed on him seeing the face of the accused, meanwhile, his wife returned from shopping and took the child from him and noticed blood on the private parts of the victim child, she undressed the child to examine and noticed that the child was bleeding from her genitals, he [complainant] argued with the accused as to how the child is bleeding, meanwhile, Havaldar Ravi Das came there and noticed blood stains on the accused shirt and also blood stains on his left index finger, immediately Army Ambulance was called and the victim child was taken to Baptist Hospital, Hebbal for first aid treatment to the child, while giving treatment to the child, the duty Medical Officer suspected sexual assault on the victim child and sent intimation to the PSI of Hebbal Police Station at Ex.P7. The police came to Baptist Hospital and recorded the statement of the mother of the victim child as per Ex.P8. As there was no complaint against any person and it is stated by the mother of the victim child that, the child sustained injury while playing and hence police given NCR No.30/2014. After first aid treatment at Baptist Hospital, the victim child was brought to Commando Hospital, wherein the child was given further treatment as per Ex.P5, thereafter while the child was taking treatment, the father of the victim child given Complaint to J.C.Nagar police as per Ex.P6 4 Spl CC No.154/2014
3. On the basis of the said complaint, the complainant Police have registered a case in Cr.No.16/2014 as per FIR-Ex.P17 for the offences punishable under Sec.376 of IPC and under Secs.3 and 4 of POCSO Act, 2012. Thereafter Investigating Agency commenced the investigation. The victim child was sent for medical examination, statement of the witnesses recorded and the accused was secured on 27.1.2014, the accused was also sent for medical examination and the articles seized were sent to FSL. After completion of the investigation formalities, charge-sheet has been filed for the offences punishable under Sec.376 of IPC and under Secs.3 and 4 of POCSO Act, 2012.
4. The accused is in judicial custody since 27.1.2014 and he is represented by the counsel of his choice. After production 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 learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in-office has framed the Charge on 17.6.2014 against the accused for the offences punishable under Sec.376 of IPC and under Sec.5(m) 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 20 witnesses as PW1 to PW20 and got 5 Spl CC No.154/2014 marked 32 documents as Exs.P1 to P32 and also got marked the Material objects as MOs-1 to 5.
7. Now at this stage, it is necessary to mention that, the prosecution has not examined CW3, CW5 and CW18. CW3 is the victim child is given up, because, the child being aged less than two years and further the doctor has given certificate Ex.P15 stating that the mind-stones of speech not developed at that stage and she has not attained complete speech development. CW5-spot mahazar witness is not examined by the prosecution and CW18 reported to be dead. On perusal of the order sheet, many times prosecution took summons, warrants and also proclamation against this CW5, but, his presence could not be secured and hence, the prayer made by learned Public Prosecutor for issue of warrant against CW5 once again, is rejected.
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 denial and he claimed that he is innocent. Further he has filed written submission which is part and parcel of Sec. 313 Cr.P.C statement wherein he has stated that he is about to promote for higher post and his colleagues did not like therefore, they did conspiracy and implicated him in the alleged incident. But, the accused did not choose to lead any evidence in support of his defense.
6 Spl CC No.154/20149. Heard the learned Public Prosecutor and the learned counsel for the accused. The learned defence counsel has also filed Written Submission. Learned Public Prosecutor has relied on the following decisions in support of his arguments:
(1) 2007 Crl.L.J 1642 Ramsingh Vs. Sonia (2) (2013) 3 SCC (Crimes) 759-D (3) 2013 (3) SCC (Crimes) 911 2013 (9) SCC 283 Ravindra Laxmaiah Vs. State of A.P. (4) (2010) 2 SCC 9 (Relied on) 2014 (1) Crimes 170 SC Parminder @ Ladka Pola Vs. State of Delhi (5) AIR 1973 SC 447 (6) 2003 Crl.L.J 2056 [All] Ranjath Vs. State of U.P (7) AIR 2002 SC 2235 State of Rajasthan Vs. Om Prakash (8) 1995 (5) Scale 376 Sakshi Vs. Union of India & Others. (9) 2006 (3) Crimes 87 (Calcutta High Court) (10) 2006 Crl.L.J 2913 (SC) Om Prakash Vs. State of U.P. (11) 2016 (2) Crimes 134 SC
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 25.1.2014 around 6.30 P.M., the accused inserting his finger into the vagina of the victim child aged 14 months and thereby has committed an offence punishable under Sec.376 of IPC?7 Spl CC No.154/2014
2. Whether the prosecution further proves beyond reasonable doubt that the accused by inserting his finger into the vagina of the victim child below the age of 12 years has committed penetrative sexual assault and thereby has committed an offence punishable under Sec.5(m) r/w Sec.6 of POCSO Act, 2012?
3. What Order?
11. My findings on the above points are as under:
Point Nos.1 and 2 : In the NEGATIVE Point No.3: As per the final order, for the following:
REASONS
12. POINT NOS. 1 AND 2:- Consideration of these two Points are based on the same facts and evidence and therefore, to avoid repetition, these two points are taken together for discussion.
13. According to the prosecution, that on 25.1.2014 around 6.30 P.M., the accused by inserting his finger into the vagina of the victim child below the age of 12 years, has committed rape punishable under Sec.376 of IPC and further he [accused] has committed penetrative sexual assault punishable under Sec.6 of POCSO Act, 2012.
14. The burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution 8 Spl CC No.154/2014 has relied on the evidence of PWs-1 to 20 witnesses. The nature of the witnesses examined by the prosecution are as under:
PW1 Rushikesh Khandge- Lt.Colonel, PRTC, deposes about handing over of the accused to the complainant police and also issue of Duty Certificate to both the complainant and the accused
----- Poonam Harish- Court witness is the translator PW2 Dr.Sujatha Dutta-Medical Officer, Command Airforce, Bangalore, deposes about the medical examination conducted on the victim child PW3 Tangip Chang- Mother of the victim child PW4 D.S.Kom- Father of the victim child PW5 B.R.Manjunath-ASI deposes about recording of the statement of the mother of the victim child PW6 Dr.Leelashree deposes about the medical examination conducted on the victim child PW7 Dr.Suresh.V deposes about the medical examination conducted on the accused PW8 Dr.Deepashree.G.N deposes about the medical examination conducted on the victim child PW9 C.Ramakrishnaiah-Retired Sub-Inspector deposes about taking the accused to Bowring Hospital for medical examination PW10 Ku.D.S.Dilshaad-WPC deposes about taking the victim child for medical examination to the Commando Hospital and Bowring and Lady Curzon Hospital PW11 Venkatesh Murthy-Head Constable deposes about taking the accused to Bowring Hospital for medical examination 9 Spl CC No.154/2014 PW12 Nacharit Singh- Regiment Police deposes about conducting of spot mahazar by the complainant police PW13 Dr.Lakshmi-Assistant Professor-Bowring Hospital, Bangalore deposes about the issuance of Certificate with regard to the victim child stating that, the victim child is not in a position to give her statement PW14 K.Venkatachalamurthy-Police Inspector-Hebbal Police Station deposes about sending of MLC of the victim child to the complainant police station on the ground of jurisdiction.
PW15 Vedavathi.K- Sub-Inspector deposes about taking the victim child to Bowring Hospital for medical examination PW16 Tapasdas- Witness to Spot Mahazar -Ex.P13 and Ex.P14 PW17 Ravidas- Witness to Spot Mahazar-Ex.P13 PW18 S.Ramesh Kumar-Police Inspector deposes about receipt of the complaint, registering of FIR, conducting of spot mahazar as per Exs.P13, P14 and P18, arresting the accused, sending the victim girl and the accused for medical examination PW19 Shahnaz Fathima-Scientific Officer-FSL deposes about issuing of FSL Report PW20 Jaydev-Witness to the Spot Mahazar as per Ex.P18 Before appreciating the evidence, it is better to have a glimpse of the evidence given by all witness.
15. PW1-Lt.Colonel, PRTC deposes that, the complainant as well as the accused are employees of PRTC, on 27.1.2014, the complainant police requested him to hand-over the accused, as 10 Spl CC No.154/2014 such, he has handed over the accused to complainant police, he has issued Duty Certificates in respect of the complainant as well as the accused as per Exs.P1 and P2, the complainant police has given Requisition as per Ex.P3 to him to hand over the accused to them, he has issued true copy of the Birth Certificate as per Ex.P4 attesting the date of birth of the victim child as 27.11.2012.
16. PW2-Doctor deposes that, on 26.1.2014 at about 4.10 A.M., [early morning] the victim child was brought to the Commando Hospital by her parents for medical examination, she examined the victim child and opined that Genital Trauma and gave Report as per Ex.P5.
17. PW3-Mother of the victim child deposes on 25.1.2014 she had gone to bring vegetables and had left her daughter with her husband, when she returned from the market, she found that her daughter was crying repeatedly, when she examined the child, she found that the child was bleeding from her private parts, when she and her husband came near the main gate and asked the accused as to what he has done to the child, as the accused was also present near the main gate, the accused told that he has not done anything to the child, but, the child was frightened and crying by seeing the accused, when she asked the accused if he did not do anything, why the child is crying, at that time, she found that there were blood stains in the left index finger and shirt of the accused, for that, the accused told that he rubbed his finger on his hands and as such, it is bleeding, by that time, some personnel along with 11 Spl CC No.154/2014 Ravidas-PW17 came there and they told the parents of the victim child to take the child to the hospital, as such, they took the victim child to Baptist hospital, the Doctors in the Baptist hospital told them to take the victim child to Commando Hospital, there the Doctors by seeing the victim child told them to inform the police, as such, on 26.1.2014, they lodged a complaint.
18. PW4-Father of the victim child deposes that, he is working in PRTC Main Gate, on 25.1.2014 around 5.30 to 5.45 P.M., his wife told that, she has to go to market and get vegetables and to take care of their daughter/victim child, as his duty was about to over, he had to hand over the Register and keys to the night duty worker, he had gone to the main counter, which is situated 100 feet away from the Reception gate, the accused who was near the Reception counter asked him [PW4] to give the child and he will look after the child, therefore, he [PW4] handed over the child to the accused, 2 minutes later, he [PW4] returned back and noticed that, the child was crying, he asked the accused what happened, but, the accused said he does not know, the child was frightened and crying, soon after his wife came and she took the child and noticed that, blood was oozing from the private part of the child and they enquired with the accused, who did the said injuries, the accused told that, he did nothing to the child, in that connection there was some quarrel between the accused and PW4 and at that time, Havaldar Ravidas came to the spot, he noticed that, the finger of the accused was blood stained and there were blood stains on the shirt of the accused, Ravidas sent the child to 12 Spl CC No.154/2014 Baptist Hospital along with CW4, wherein first aid treatment was done and the Doctor told that this may be the case of rape and asked them to go to Hebbal Police Station and thereafter the victim was brought to Commando Hospital, the doctor of Commando Hospital told that, somebody did injury to the private part of the victim child, otherwise, this kind of injury cannot be sustained by the child and informed the police and JC Nagara Police came to Commando Hospital and obtained the statement of PW4 as per Ex.P6, thereafter, in the Commando Hospital, the child was treated.
19. PW5-ASI deposed that, on 25.1.2014 at about 11.20 P.M., he received information from Hebbal Police stating that, there is a Memo with regard to the medical treatment given to the child as per Ex.P7, he took the said Memo and had been to Baptist Hospital, wherein the victim child-CW3 and her mother were there, the Doctor recorded the statement of the mother of the victim child in his [PW5] presence as per Ex.P8, thereafter he came to the Police Station and registered NCR No.30/2014. Further he deposed that, he enquired with the mother of the victim child, she told that, the accused and her husband-PW4 were working in the same Department and in case, any statement made against the accused, that may lead to trouble to the accused and therefore, she did not say anything against the accused.
20. PW6-Doctor deposes that, on 26.1.2014 in the night at about 10 P.M., the victim child was brought by her parents along 13 Spl CC No.154/2014 with the PSI alleging the history of sexual assault on the victim child on 25.1.2014, she examined the victim child and noticed that, private part of the victim child was red in colour and swollen and hymen was torn and she opined that the child was used for an act like that of sexual intercourse and she gave Certificate as per Ex.P9.
21. PW7-Doctor deposes that, on 27.1.2014, at about 2.00 P.M., he examined the accused and given Certificate and opined that, the accused is capable of doing an act like that of sexual intercourse.
22. PW8-Doctor deposes that, on 4.3.2014 in the night in between 8.30 to 10 P.M., the victim child was brought to Baptist Hospital by her parents and her private part i.e., vagina was full of blood, she enquired with the mother of the victim child, she told that, the victim child fell down when she was playing, on genital examination, she [PW8] noticed that, sexual assault might have been done on the victim child and therefore, she told the parents of the victim child for conducting detail examination, but, they did not agree, the parents of the victim child took her to Commando Hospital, she [PW8] has given Report as per Ex.P10.
23. PW9-Retired Sub-Inspector deposes that, on 27.1.2014 he took the accused along with Head constable and police constable to Bowring Hospital for medical examination and after examination 14 Spl CC No.154/2014 over, the accused was brought back and produced before the Police Inspector.
24. PW10- WPC deposes that she brought the victim child from Commando Hospital and produced before the Police Inspector and thereafter on the same day, she took the victim child to Bowring Hospital for further medical examination. She further deposed that, on 17.2.2014, as per the direction of the Police Inspector, she took the sealed articles to FSL, her Passport is Ex.P11.
25. PW11-Head Constable deposes similarly to the evidence of PW9.
26. PW12-Regiment Police deposes that, he knows the accused, the accused is working with him for 2 years as a soldier, he also knows the complainant and he [complainant] is a Regiment police, that on 1.2.2014 J.C Nagar Police called and accordingly, he along with CWs-6 and 7 gone to J.C.Nagar Police station at about 3 P.M., wherein CW7 came to J.C.Nagar Police Station to hand over the clothes of the victim child, he handed over the frock [CAV] and the nicker of the victim child, the nicker of the victim child was blood stained, but, the frock was not blood stained, the police sent the said clothes and written Mahazar as per Ex.P14 and he identified the pant and nicker of the victim child as MO-1. He further deposes that on 27.2.2014 again JC Nagar police called him and accordingly he [PW12] had gone to the Police Station along 15 Spl CC No.154/2014 with CWs-6 and 7 and Ravidas handed over the clothes belonging to the accused i.e., pant and shirt and the shirt of the accused was blood stained, the police seized the clothes and written Mahazar as per Ex.P13. He [PW12] identified the said clothes i.e., Pant and Shirt as MOs-2 and 3.
27. PW13-Doctor deposes that, on 2.4.2013, the victim child was produced along with her mother by JC Nagar police, to say whether the child is able to give its statement, she tested the child and found the normal development, speech not developed at that stage, she opined t hat, the victim child is not in a position to give her statement in view of her age, accordingly, she issued Certificate as per Ex.P15.
28. PW14-Police Inspector, Hebbal Police Station, deposes that, on 25.1.2014, in the night when he was in the Police Station at about 11.15 P.M., he received a Memo- MLC from Baptist Hospital and as Baptist Hospital is coming within the jurisdiction of JC Nagara Police Station, he called JC Nagara Police and intimated about the information, accordingly, the police constable of JC Nagara Police Station [CW17] came to Hebbal Police Station at 1.20 A.M., took the Memo, which is marked as Ex.P7.
29. PW15-Sub-Inspector, Hebbal Police Station deposes that, on 26.1.2014, ACP of JC Nagara Police called her and instructed her to take the victim child to the Bowring Hospital, because, 16 Spl CC No.154/2014 at JC Nagara Police Station, there was no woman constable and she came to JC Nagara Police station and took the victim child for medical examination, after medical examination of the victim child, she brought back the victim child and produced before the Police Inspector in the night at 12 P.M.
30. PW16-Seizure mahazar witness to Exs.P13 and P14 deposes that he knows the accused and the complainant and also wife of the complainant. That on 27.1.2014 in between 4 P.M. to 5 P.M., J.C.Nagar Police conducted Panchanama as per Ex.P13 and he signed on Ex.P13, at that time, along with him, Ravidas and Naksthra Singh were present and the accused and the complainant and his wife were also there, at that time, the accused handed over one black pant and one striped shirt and the said clothes were seized and packed separately, he identified the pant and shirt as MOs-2 and 3, he also deposed that, he has signed on another Mahazar-Ex.P14 and he identified the pant of the victim child as MO-1.
31. PW17 deposes similarly to the evidence of PW4.
32. PW18-Police Inspector deposes that, on 26.1.2014, he received MLC from the Commando Hospital and he had gone to Commando Hospital and enquired with the mother of the victim child, the victim was 14 months old child, the complainant filed written complaint-Ex.P6, he received the complaint and registered a case in Cr.No.16/2014 and sent the FIR, at that time, the child was 17 Spl CC No.154/2014 taking treatment in the Commando Hospital. He further deposes that, he sent the victim child along with WPC [Vedavathi] for further medical examination to Bowring Hospital, that on 27.1.2014, he had gone to the place of incident wherein he has conducted Panchanama in the presence of CWs-4 and 5 from 9 A.M, to 10 A.M., as per Ex.P18, he requested the Commandant, PRTC to hand over the accused, on the same day, the accused was handed over to the custody of PW18, he enquired the accused and arrested him, the accused has given voluntary statement, Ravidas [CW7] produced the clothes belonging to the accused, in the presence of CW6 and CW8, he conducted seizure mahazar between 4 P.M to 5 P.M., as per Ex.P13, he identified the pant and shirt belonging to the accused as MOs-2 and 3, further he deposed that, there were blood stains on the clothes, he sent the accused for medical examination to Bowring Hospital along with CWs-11 and 12 and after medical examination, CWs-11 and 12 produced the accused before him along with blood samples, he recorded the further statement of the complainant, thereafter, he also recorded the statements of CWs-4 to 14, the victim child was 14 months old and thereby, she could not speak, he further deposed that on 27.1.2014, the accused was in the Police Station, at that time, the victim child and her parents were also in the Police Station and the victim child after seeing the accused hold her mother, thereafter, the accused was sent for medical examination , on 1.2.2014, Ravidas handed over the clothes of the accused along with Six Photographs and CD, the Photographs marked as Exs.P19 to P24 and CD as Ex.P25, he further deposed that, in Exs.P22 to P24, blood stains can be seen, he further deposes that on 25.1.2014, the 18 Spl CC No.154/2014 complainant produced the pant of the victim child, he seized the said cloth of the victim child in the presence of CWs-6 and 8 between 12.45 P.M, to 1.45 P.M. as per Ex.P14, he identified the pant of the victim child as MO-1, he further deposes that, on 10.2.2014, he collected the blood samples of the victim child, on 17.2.2014, he has sent all the articles to FSL for examination, he submitted Requisition as per Ex.P27 and collected the duty certificates of the accused and the complainant as per Exs.P1 and P2, he also collected the birth certificate of the victim child as per Ex.P4, on 11.3.2014 he also collected medical certificate of the victim child as per Ex.P10 from Baptist hospital, that on 17.3.2014. he collected the medical certificate of the victim child from Commando Hospital as per Ex.P5, that on 1.4.2014 he sent Requisition letter as per Ex.P28 to Bowring Hospital as to whether the victim child is able to give statement, he sent the seized articles of the accused and the victim child to FSL for medical examination as per the Acknowledgment Ex.P29, that on 8.9.2014 he collected the FSL Report as per Ex.P30, he also collected the medical certificate of the accused as per Ex.P31.
33. PW19-Scientific Officer, FSL deposes that, on 17.2.2014, J.C.Nagar Police had sent 5 sealed articles along with WPC for scientific examination, after examination of the said sealed articles, she has given Report as per Ex.P30.
19 Spl CC No.154/201434. PW20 deposes that, he is working in PRTC Centre at Bengaluru as Nayak Post, he knows the complainant and the accused and all the three are working together. He further deposes that, on 27.1.2014, in the morning at 9 A.M., the Police Inspector came in front of PRTC Gate No.1 along with the complainant in connection with the sexual assault made on his daughter at that time, he, complainant [CW1] and CW5- Gwalal Singha [not examined] were present along with 2 constables and CW1 shown the reception room wherein the incident had take place and the Police Inspector conducted mahazar as per Ex.P18 and he has put his signature on Ex.P18
35. In this case, the accused has been charged for the offences punishable under Sec.376 of IPC and under Sec.5(m) r/w Sec.6 of POCSO Act, 2012. The burden is on the prosecution to prove the charge against the accused beyond reasonable doubt. In order to prove the charge leveled against the accused, the prosecution has relied upon the aforesaid witnesses-PW1 to PW20, document at Exs.P1 to P32 and Material Objects at MO-1 to MO-5.
36. On the basis of the aforesaid witnesses of the prosecution, Learned Public Prosecutor submitted his arguments that, the accused and the complainant-PW4 were working in the same department and on the date of incident i.e., on 25.1.2014, the complainant was in the duty at Main gate and his duty ended at 5.30/5.45 P.M., at that time, his wife-PW3 came with his daughter and told the complainant to look after her [daughter], as she has to 20 Spl CC No.154/2014 go to the market to purchase vegetables, at that time, the complainant had to give keys and Register at Reception Counter and at that time, the accused herein was present at that place and he told the complainant that he will look after the child and thereby, the complainant handed over the child to the accused and went inside and when he came back, the child was crying and soon after, the wife of the complainant came and she noticed that, the child's clothes were wet and blood was oozing from the child's vagina and the child was frightened. Therefore, learned Public Prosecutor argued that, when the child was with the custody of the accused, the child sustained the said injuries, it is the accused who committed the said crime and learned Public Prosecutor further submitted that, the complainant-PW4 deposed to that effect, his evidence is corroborated with the evidence of his wife-PW3 and further when PW3 and PW4 were enquiring with the accused, PW17 by name Ravidas who is also working in the same department as PRTC security came there after heard the galata and he noticed that the right hand index finger of the accused was blood stained and also there was blood on the shirt of the accused, near chest, and said Ravidas has deposed before this court and therefore, learned Public Prosecutor submitted that, the evidences of PWs-3, 4 and 17 discloses that the accused has committed the offence.
37. It is further argued by learned Public Prosecutor that, PW1-Lt.Colonel deposes that, the accused and the complainant were working in the same department and their duty certificates marked as Exs.P1 and P2. Further it is argued by learned Public 21 Spl CC No.154/2014 Prosecutor that, the Medical Officer of the Commando Hospital examined as PW2 deposes about the injuries sustained by the victim child and the Medical document marked as Ex.P5 discloses the injuries sustained by the victim child. Further the Doctor [PW8] of Bowring Hospital also deposes about the injuries sustained by the victim child and Medical documents as Exs.P7and P10 discloses that, the victim child was subjected to sexual assault. Further, learned Public Prosecutor argued that, the Scientific Officer-PW19 deposes that, the clothes were blood stained and the blood stains on the clothes were human blood and belonged to 'A' group and the accused blood group is also 'A' group and therefore, learned Public Prosecutor argued that, all the evidence of the prosecution are corroborated each other and prosecution by examining the complainant, eyewitnesses, Doctors proved that, it is the accused who committed the offence. Therefore, learned Public Prosecutor argued t hat, if the accused denied that, he is not the culprit, then burden shifts on the accused to prove that, he is not the culprit, as provided under Sec.106 of Evidence Act. Further, learned Public Prosecutor argued that, the accused in this case in order to disprove the evidence of the prosecution witnesses and to discharge his burden that he is not the culprit not placed any evidence. Therefore, learned Public Prosecutor argued that, the prosecution proved the guilt of the accused beyond all reasonable doubt and hence, the accused may be convicted.
38. Further learned Public Prosecutor has relied upon the aforesaid decisions. I have gone through the said decisions.
22 Spl CC No.154/2014In the 1st decision reported in 2007 Crl.L.J 164 it is observed that:
"Finding of blood stains on shalwar of accused matching with the blood group of deceased strengthened the case of prosecution".
In the 2nd decision reported in (2013) 3 SCC (Crimes) 759-D, it is observed that:
"Incident especially within the knowledge of accused under Secs.106 and 114 of Evidence Act".
In the 3rd decision reported in 2013 (3) SCC (Crimes) 911, it is observed that:
" Failure to explain or fake explanation would create a strong suspicion about guilt of the accused"
In the 4th decision reported in (2010) 2 SCC 9 it is observed that:
"Blood and human semen found on underwear of prosecutrix- Accused rightly held guilty of rape- Non-penetration or non-rupture of hymen is immaterial."
In the 5th decision reported in AIR 1973 SC 447, it is observed that:
"All details given in his statement before the court by the complainant need not necessarily find a place in the FIR".
In the 6th decision reported in 2003 Crl.L.J 2056 it is observed that:
"The statement of medical officer proves beyond doubt that the girl who was less than one year was subjected to rape by the appellant. There is absolutely no reason to discard the prosecution case 23 Spl CC No.154/2014 and the learned court below was fully justified in believing the prosecution, convicting the appellant".
In the 7th decision reported in AIR 2002 SC 2235 and in the 8th decision reported in 1995 (5) Scale 376 it is observed that:
"Obligation of courts in cases of child rape-Here is a case of rape alleged to have been committed on a child aged about 4 to 5 years. While deciding such cases, a duty is cast on the court to have utmost sensitivity and it is necessary to appreciate the evidence in its totality, keeping in view the background of the entire case, and not in isolation".
In the 9th decision reported in 2006 (3) Crimes 87, it is observed that:
"Non-examination of a child witness of tender age does not affect prosecution case when there is evidence of other witnesses sufficient to prove guilt of accused".
In the 10th decision reported in 2006 Crl.L.J 2913 (SC), it is observed that:
"Indian women has tendency to conceal such offence because it involves her prestige as well as prestige of her family".
In the 11th decision reported in 2016 (2) Crimes 134 SC, it is observed that:
"If the accused do not disclose special
circumstances within their exclusive
24 Spl CC No.154/2014
knowledge, adverse inference may be drawn against accused".
On the basis of the observations made in the aforesaid decisions, learned Public Prosecutor categorically argued that, in the present case, the prosecution has produced all relevant evidence by examining the complainant, his wife, eyewitness PW17, Doctors and the Investigating Officer and the prosecution also produced all the Material objects and the documents which are corroborated each other and further the accused in the statement recorded under Sec.313 of Cr.P.C admitted that, the victim child was brought by the wife of the complainant at the reception gate on 25.1.2014 around 5.30 P.M., and he was not at the reception gate and if the accused denies his complicity in the said crime and the accused knowing that, what happened to the child, then it is the duty of the accused to place evidence that, he is not the culprit and somebody was the culprit and the accused did not produce any evidence to discharge his burden. Therefore, learned Public Prosecutor submitted that, adverse inference may be drawn against the accused stating that, he[accused] has exclusive knowledge about the circumstances as to what happened and when he did not reveal that, he is a culprit, therefore he [accused] may be convicted.
39. In this case, learned defence Counsel filed Written Arguments. I have gone through the Written Arguments submitted by the learned defence Counsel.
25 Spl CC No.154/201440. After hearing the learned Public Prosecutor and written arguments submitted by learned defence Counsel, now, it is necessary to scrutinize the evidences of the prosecution witnesses cautiously by considering their version in the cross-examination.
41. According to the prosecution, the incident had taken place on 25.1.2014, around 6.30 P.M ., in the place at PRTC RP Gate, Reception Centre. On going through the evidence of prosecution witnesses, the PW17 [Ravidas] said to have witnessed that, at the time of incident, the accused was present at reception centre and finger of the accused, shirt of the accused were blood-stained. Therefore, according to the prosecution, the accused had committed the crime. In that regard, I have gone through the evidence of PW17 who is the prime witness in the present case. PW17 in his examination-in- chief deposed that, on 25.1.2014, his duty was from 1.00 P.M., to 6.00 P.M., as Centry at PRTC, Bengaluru. In between 5.45 P.M., to 6. 00 P.M., the wife of the complainant [PW3] came to Reception Centre and had handed over the child to the complainant-PW4 and she went to bring vegetables. After sometime, PW17 heard the galata and came there and found that, the complainant-PW4, his wife-PW3, the accused were in the Reception Centre. The child was crying and there was injury on her private part and there was blood on the pant worn by the victim child. PW17 [Ravidas] further deposes that, he noticed that, the right hand index finger of the accused was blood-stained and the shirt worn by the accused was also blood-stained on his chest part. He [PW17] further deposes that, he sent the victim child 26 Spl CC No.154/2014 along with PW3 and PW4 to the hospital in Army Ambulance and deposes that, later he took the accused before his higher officer and his higher officer enquired the accused. However, the Investigating Officer has not cited the name of the said higher officer with whom PW17 took the accused. If really, PW17 took the accused before the higher officer, then, the higher officer would be the material witness, so as to say about the incident. Further, it is pertinent to note that, PW17 deposed that, his higher officer enquired the accused. If that is so, the higher officer would have immediately lodged the complaint before the police, but, no complaint is registered against the accused on that day i.e., on 25.1.2014. Learned Public Prosecutor argued that, as per the evidence of PW3 and PW4, the deliberations held to save the accused from the alleged crime, because, PW4 and the accused are colleagues and working in the same department and therefore, they did not lodge the complaint immediately, however, the doctor who examined the victim child at Baptist hospital sent Memo to Hebbal Police Station with regard to the sexual assault on the victim child. Therefore, on the date of incident itself, no complaint lodged against the accused. Even if the arguments of learned Public Prosecutor is accepted, atleast during the course of investigation, the said higher officer would have been enquired and he would have been cited as a witness. Non-enquiring of the higher officer of PRTC, as deposed by PW17, by the Investigating Officer clouds a doubt in the mind of the court the presence of PW17 at that time and his notice about the blood-stains to the finger and the shirt of the accused.
27 Spl CC No.154/201442. Further it is pertinent to note that, according to PW17 the right hand index finger of the accused was blood-stained, but, PW3-wife of the complainant deposed that, left hand finger of the accused was blood-stained. This variation in the evidence of PW3 and PW17 with regard to identification of right hand finger or left hand finger is a serious contradiction to be taken note-of and the prosecution has not clarified whether it is right hand finger or left hand finger. This is another point to be taken note-of with regard to the involvement of the accused in this crime.
43. Another point to be taken note of is PW3 mother of the victim child deposed that, when the Hebabal Police came to Baptist hospital, she stated before the police that, her daughter sustained the injuries in an accident, because, if she disclosed the true facts, then it may spoil future of her daughter. She [PW3] has not stated that, in order to save the accused, she did not disclose the true facts. But, PW4-complainant during the course of cross-examination stated that, with an intention to save the accused, the people of Army brought pressure to him and therefore, he did not disclose the true fact. If really, the complainant and his wife intended to save the accused and therefore not lodged the complaint, then, PW3 in her evidence would have deposed similar to the statement made by PW4 i.e., in order to save the accused, she did not depose the truth, but she deposed that, keeping in mind the future of her daughter, she did not depose the truth.
28 Spl CC No.154/201444. Further another point to be taken note-of is that, the prosecution has produced the documents i.e., Exs.P19 to P24-Photographs, wherein the accused was showing his hands before one person. The prosecution has not elicited who is that person before whom the accused has been showing his hands. Further it is very pertinent to note that, the prosecution has produced one letter said to be written by PW17-Ravidas to the Police Inspector to J.C Nagar Police Station dated 1.2.2014 submitting CD and Photographs of the accused said to have taken on 25.1.2014 in PRTC Military Area. The contents of said CD not deposed by anyone of the prosecution witnesses and further who has taken those photographs and who has videographed the said taking of photographs and the accused showing his hands, not examined by the prosecution. No receipts produced by the prosecution with regard to taking of those photographs. Therefore, the photographs at Exs.P19 to P24, CD-Ex.P25 cannot be looked into. Suspicion arises in the mind of the court with regard to photographing the accused on 25.1.2014 itself. If really, the photographs of the accused as per Exs.P19 to P24 and the CD-Ex.P25 had taken on 25.1.2014 itself, then the said Ravidas- Pw17 could have produced the said photographs before the police at the time of complaint or on the next day i.e. on 27.1.2014 when the police came to the spot for conducting the mahazar. Therefore, the said photographs cannot be believable at all and no reliance can be placed on the said documents.
29 Spl CC No.154/201445. Further another point to be taken note-of is that, production of the clothes of the accused and the victim child before the complainant police. PW12 by name Nacharit Singh he is Regiment Police deposed that, on 1. 2.2014 J.C.Nagr police called him before the Police Station, he, CW6 [PW16-Tapas Das], CW7 [PW17-Ravidas] had gone to J.C.Nagar Police Station along with CW1. PW12 further deposes that, CW7 handed over the clothes of the victim child to the J.C.Nagar police i.e., child's frock [Angi in kannada] and Nicker to the complainant police. He deposes that on the Nicker, there was blood stains, but, on the Shirt (CAV) there was no blood stains, because the clothes were washed. The complainant police seized the said clothes by drawing Mahazar as per Ex.P14. However, it is pertinent to note that during the course of cross-examination of PW4, he deposed that, the clothes worn by the victim child at the time of incident, was kept by PW4 in Polythene bag. If that is so, the clothes of the victim child could have seized by the complainant police in the hospital itself at the time of recording of the Statement/Complaint as per Ex.P6 at Commando Hospital. The suspicion arise in the mind of the court how PW17 [CW7] Ravidas had interest to keep the clothes belonging to the victim child and to produce before the court. Likewise, in so far as production of clothes belonging to the accused i.e., pant and shirt, again PW12 deposes that, on 27.1.2014 the complainant police called him to the Police Station and on that day also, he had gone to the Police Station along with CWs-6 and 7, who are none other than the aforesaid Tapas Das and Ravidas. The clothes of the accused produced by said Ravidas-PW17 to the 30 Spl CC No.154/2014 complainant police and the police seized the said clothes by drawing up of Mahazar as Ex.P13. At this stage, it is relevant to mention that, this court has noticed the mistake committed while recording the evidence of PW12. Ex.P13 Mahazar is pertaining to the seizure of clothes of the accused, but, in the evidence of PW12, it is wrongly mentioned as belonged to victim child, likewise, there is a mistake in the evidence of PW12 i.e., date mentioned as 27.2.2014 instead of mentioned as 27.1.2014, further, the Mahazar instead of mentioning as Ex.P14 it is mentioned as Ex.P13. Ex.P14 belonging to the seizure of the clothes of the victim child. It is pertinent to note that, if at all the clothes of the accused blood-stained, the complainant police could have seized the said clothes at the time of drawing up of Mahazar in the place of incident on 27.1.2014. But, CW7-Ravidas took the said clothes to the complainant Police Station. Further it is pertinent to note that Mahazar witnesses to Exs.P13 and P14are one and the same persons and it is also pertinent to note that on both dates i.e., 27.1.2014 and 1.2.2014, CW6, CW7 and CW8 had gone to the complainant Police Station. CW6 examined as PW16 by name Tapas Das. He is a person of Army, CW7 examined as PW17 by name Ravidas , he is also person of Army and CW8 -PW12 is also person of Army. All the three persons belong to the same Department, no independent witness called upon while conducting Mahazars Exs.P13 and P14. This doubts about the genuineness of the documents Exs.P13 and P14.
46. In this case, it is pertinent to note that, while recording of Sec.313 of Cr.P.C Statement the accused admitted that, the wife of 31 Spl CC No.154/2014 the complainant-PW3 came and handed over the child to PW4, but, he has denied the statement that, PW4 handed over the child to his hands. The accused has completely denied that, he was holding the child on that day i.e., 25.1.2014 around 6.00 to 6.30 P.M. Further the accused admitted on that day, he worn black pant, but, explained that, his black pant not seized by the complainant police. Further he has also denied that, his photographs were taken on 25.1.2014. If at all, the accused really had committed the offence, then, he could have stated that he did not see the child at all and the mother of the child did not bring the child to the reception centre and handed over to PW4. He[accused] fairly stated that, the child was brought by PW3 and handed over to PW4 and he denied that, PW4 in turn handed over the child to him. Further the accused submitted that, he is about to promote in his courier and his senior officer did not like his promotion and in order to see that, he could not get promotion, they hatched up a plan and they targeted him by false implication in the present case. Further the accused denied any sexual injuries on the victim child at that time, when he saw the child on 25.1.2014 at 6.30 P.M, he further stated that, there was no blood oozing from the vagina of the victim child at that time.
47. Learned Public Prosecutor further argued that, the prosecution has examined FSL Officer as PW19 and as per FSL Report marked as Ex.P30, the FSL Officer has opined that, the presence of blood was detected in Item Nos. 1, 2 and 4 [One shirt, One pant- Item Nos. 1 and 2 belonged to the accused] and another 32 Spl CC No.154/2014 One Pant-Item No.4 belonged to victim child] and those were human blood. Further she deposes that, Item No.3 i.e., blood sample belonged to the accused was of 'A' group and Item No.5 i.e. blood sample belonged to the victim child was 'O' group. Further, PW19 deposes that, Items-1, 2 and 4 were stained with 'O' group of blood, therefore, learned Public Prosecutor submitted that, the pant and shirt of the accused, were stained with 'O' group that belonged to the victim child and therefore, he [accused] is the person who has committed sexual assault on the victim child. However, the accused during the course of recording of Sec.313 Statement stated that, his pant was not seized by the complainant police. It is also pertinent to note that as per the evidence of Ravidas-PW17 and PW3 both deposed that, the shirt of the accused was blood-stained, they did not say his pant was also blood-stained, if the shirt and pant were both blood-stained then PW3 and PW17 could have deposed the accused's pant and shirt were blood stained. Further it is pertinent to note that as already stated that, the production of blood-stained clothes was made by PW17-Ravidas. The complainant police did not seize the said blood stained clothes directly from the accused, according to the Investigating Officer, on 27.1.2014, he requested Lt.Colonel-PW1 to hand over the accused, accordingly PW1 handed over the accused to the complainant police. The complainant police could have seized the clothes from the accused directly if really the clothes of the accused were blood stained. The doubt arises in the mind of the court how PW17 was in possession of the clothes belonging to the accused so as to handover to the J.C. Nagar Police Station on 27.1.2014. Therefore, only on the basis of the evidence of PW19, it 33 Spl CC No.154/2014 cannot be said that, because the blood-stained belonged to 'O' group i.e., the victim child blood found on the clothes of the accused, the accused has committed the offence. When the clothes of the accused not directly seized by the Investigating Officer from the accused, and the clothes were handed over by PW17 to the complainant Police Station, there may be chances of tampering the evidence. Therefore, on the basis of the evidence of PW19 and on the basis of FSL Report-Ex.P29 and Ex.P30 including Sample Seal-Ex.P31 the accused cannot be convicted.
48. Learned Public Prosecutor has further argued that, the accused admitted his presence on the date, time and place of the incident and PW17-Ravidas he witnessed the blood stains on the finger and on the shirt of the accused and therefore, the accused had the special knowledge what transpired and the burden is upon him to prove how he sustained blood stains and who was the culprit, as per the provisions of Sec.106 of the Evidence Act.
49. However, in the present case this court has not accepted the evidence of PW17-Ravidas, as trustworthy and therefore, the evidence of PW17 is not believable with respect to the blood stains on the finger and shirt of the accused. This court has noticed many infirmities in the evidence of PW3 [wife of the complainant], PW4-complainant and the evidence of PW17-Ravidas. Because of serious infirmities, contradictions in their evidence, this court has not considered their evidence as trustworthy to believe. Further this court also doubted about the seizure Mahazars-Exs.P13 and 34 Spl CC No.154/2014 P14 and opined that, the said mahazars cannot be accepted as there was possibility of tampering, because the clothes which were seized under Exs.P13 and P14 were produced by PW17, therefore, Exs.P13 and P14 cannot be believable. When this court has opined that, the evidence of PW3, PW4 and PW17 are not trustworthy to believe and also no reliance can be placed on Exs.P13 and P14, no other evidence of the prosecution would connect the accused with the crime that he has committed. When the prosecution has initially failed to establish that the accused had committed the offence, then the accused need not produce any evidence as argued by learned Public Prosecutor invoking the provision under Sec.106 of Evidence Act.
50. To sum up in this case though the prosecution relied upon the evidence of PW3-wife of the complainant, PW4-the complainant, PW17- said to be the eyewitness, PW19-Scientific Officer so as to prove that the accused had committed the offence, for the discussions made supra, their evidence are not accepted by this court, as trustworthy to believe, as this court found serious infirmities and contradictions and therefore, the prosecution has failed to prove the guilt of the accused, beyond reasonable doubt. Under these circumstances, the accused is entitled to an acquittal, extending benefit of doubt. Accordingly, I answer POINT NOS.1 AND 2 IN THE NEGATIVE.
35 Spl CC No.154/201451. POINT NO.3: 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 of IPC and under Sec.5(m) r/w Sec.6 of POCSO Act, 2012.
The accused was arrested on 27.1. 2014 and since then has been in judicial custody and he is set at liberty on today i.e., on 12.1.2017.
As per the provisions of Sec.437(A) of Cr.P.C., the accused shall execute bail bonds with sureties, to appear before the Higher court, as and when such court issues notice in respect of any appeal or petition filed against the judgment and such bail bonds shall be in force for 6 months.
In the present case, today, the accused ordered to be set at liberty, as he has been acquitted of the offences alleged against him. The accused has to comply the provisions of Sec.437(A) of Cr.P.C. Until the accused comply with the provisions of Sec.437(A) of Cr.P.C, he has to be remain in judicial custody.
36 Spl CC No.154/2014In case the accused not furnishes the bail bonds and sureties, then the jail authorities are directed to release the accused and set at liberty after 6 months from today, which will come to an end on 12.7.2017.
MOs-1 to 5 being worthless are ordered to be destroyed after the appeal period is over.
[Dictated to the Stenographer partly and directly on the compute, corrections carried out then pronounced by me in the Open Court on this the 12th day of January, 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURES List of witnesses examined for the prosecution:
PW1 Rushikesh Khandge CW9 30.7.2014
----- Poonam Harish Court witness 9.10.2014
PW2 Dr.Sujatha Dutta CW22 31.7.2014
PW3 Tangip Chang CW2 16.9.2014
PW4 D.S.Kom CW1 9.10.2014
PW5 B.R.Manjunath CW16 26.11.2014
PW6 Dr.Leelashree CW20 2.12.2014
PW7 Dr.Suresh.V CW18 27.12.2014
PW8 Dr.Deepashree.G.N CW15 6.2.2015
37 Spl CC No.154/2014
PW9 C.Ramakrishnaiah CW11 1.9.2015
PW10 Ku.D.S.Dilshaad CW10 1.9.2015
PW11 Venkatesh Murthy CW12 1.9.2015
PW12 Nacharit Singh CW8 20.10.2015
PW13 Dr.Lakshmi CW21 6.11.2015
PW14 K.Venkatachalamurthy CW16 6.11.2015
PW15 Vedavathi.K CW14 6.11.2015
PW16 Tapasdas CW6 18.12.2015
PW17 Ravidas CW7 18.12.2015
PW18 S.Ramesh Kumar CW23 10.3.2016
PW19 Shahnaz Fathima CW24 1.9.2016
PW20 Jaydev CW13 1.9.2016
Documents marked for prosecution:
Ex.P1 Duty Certificate of PW4
Ex.P1(a) Signature of PW1
Ex.P2 Duty Certificate of the accused
Ex.P2(a) Signature of PW1
Ex.P3 Requisition received from complainant police
to hand over the accused to them
Ex.P3(a) Signature of PW1
Ex.P4 True copy of Birth certificate attesting the
date of birth of the victim child as 27.11.2012 Ex.P4(a) Signature of PW1 Ex.P5 Wound certificate of the victim child Ex.P5(a) Signature of PW2 Ex.P5(b) Signature of PW18 38 Spl CC No.154/2014 Ex.P6 Complaint dated: 26.1.2014 Ex.P6(a) Signature of PW4 Ex.P6(b) Signature of PW18 Ex.P7 Medical Memo of Bangalore Baptist Hospital, with regard to the victim child Ex.P7(a) Signature of PW5 Ex.P7(b) Signature of PW8 Ex.P7(c) Signature of PW14 Ex.P8 Statement of PW3 dated: 26.1.2014 before the complainant Police Station Ex.P8(a) Signature of PW5 Ex.P9 Medical report of the victim girl child issued by Bowring and Lady Curzon Hospital, Bangalore Ex.P9(a) Signature of PW6 Ex.P9(b) Signature of PW18 Ex.P10 Medical Report of the victim girl child issued by Bangalore Baptist Letter Ex.P10(a) Signature of PW6 Ex.P10(b) Signature of PW18 Ex.P11 Passport issued in favour of PW10 for taking the sealed articles and records to FSL, Madiwala, Bangalore Ex.P12 Report given by PW11 to Police Inspector Ex.P12(a) Signature of PW11 Ex.P13 Mahazar dt: 27.1.2014 drawn in Bangalore, in the quarters of the complainant 39 Spl CC No.154/2014 Ex.P13(a) Signature of PW12 Ex.P13(b) Signature of PW16 Ex.P13(c) Signature of PW17 Ex.P13(d) Signature of PW18 Ex.P14 Mahazar dt: 1.2.2014 drawn in Bangalore in the quarters of the complainant Ex.P14(a) Signature of PW12 Ex.P14(b) Signature of PW16 Ex.P14(c) Signature of PW18 Ex.P15 Certificate given by PW13 regarding the victim is not in a position to give her statement Ex.P15(a) Signature of PW13 Ex.P15(b) Signature of PW18 Ex.P16 MLC No.27/01/2014 dt: 26.1.2014 Ex.P17 FIR Ex.P17(a) Signature of PW18 Ex.P18 Spot Mahazar conducted at PRTC Gate Ex.P18(a) Signature of PW18 Ex.P18(b) Signature of PW20 Ex.P18(c) Signature of CW5 Exs.P19 Photographs to P24 Ex.P25 CD Ex.P26 Submission of one CD and photos of the accused for the investigation purpose by PW18 40 Spl CC No.154/2014 Ex.P26(a) Signature of PW18 Ex.P27 Duty Certificates of the accused and the complainant Ex.P27(a) Signature of PW18 Ex.P28 Letter dated: 1.4.2014 written by PW18 to the RMO, Bowring and Lady Curzon Hospital, Bengaluru requesting the RMO to issue medical certificate of the victim child Ex.P28(a) Signature of PW18 Ex.P29 Acknowledgement issued by FSL for having received the seized articles Ex.P29(a) Signature of PW18 Ex.P30 FSL Report Ex.P30(a) Signature of PW18 Ex.P30(b) Signature of PW19 Ex.P31 Sample seal Ex.P31(a) Signature of PW19 Ex.P32 Medical certificate of the accused Material objects marked for the prosecution:
MO1 Pant of the victim child
MO2 Black colour Pant of the accused
MO3 Shirt of the accused
MO4 2 tubes [accused blood sample]
MO5 2 tubes [ victim girl blood sample]
Witness examined, documents and Material Objects marked for the accused: NIL.
LIV Addl., City Civil & Sessions Judge, Bangalore.
41 Spl CC No.154/2014 42 Spl CC No.154/201411.1.2017 While going through the records in order to dictate Judgment, it is noticed by me that, CW5 by name Gwalal Singh, working in PRTC was not examined by the prosecution. On going through the order sheet, many times prosecution took summons, warrants and also proclamation against this CW5, but, his presence could not be secured. On previous dates of hearing, this court has not passed any order with regard to dropping CW5 from examination by over-sight and therefore, today, it is taken that, CW5 dropped for the reason that inspite of issue of summons, warrants and also proclamation to him, he could not secure and hence, the prayer made by learned Public Prosecutor for issue of warrant against CW5 once again, is rejected.
43 Spl CC No.154/201412.1.2017 Accused produced before me from judicial custody.
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 of IPC and under Sec.5(m) r/w Sec.6 of POCSO Act, 2012.
The accused was arrested on 27.1.
2014 and since then has been in judicial
custody and he is set at liberty on today
i.e., on 12.1.2017
As per the provisions of Sec.437(A) of
Cr.P.C., the accused shall execute bail
bonds with sureties, to appear before the
Higher court, as and when such court
issues notice in respect of any appeal or
petition filed against the judgment and
such bail bonds shall be in force for
6 months.
In the present case, today, the
accused ordered to be set at liberty, as he
44 Spl CC No.154/2014
has been acquitted of the offences alleged against him. The accused has to comply the provisions of Sec.437(A) of Cr.P.C. Until the accused comply with the provisions of Sec.437(A) of Cr.P.C, he has to be remain in judicial custody.
In case the accused not furnishes the
bail bonds and sureties, then the jail
authorities are directed to release the
accused and set at liberty after 6 months
from today, which will come to an end on
12.7.2017.
MOs-1 to 5 being worthless are
ordered to be destroyed after the appeal
period is over.
[RAJESHWARI.N.HEGDE]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BENGALURU CITY.
Office is directed to write a letter to the
Hon'ble High Court of Karnataka, Bangalore, intimating that, order of the Hon'ble High Court of Karnataka to dispose-off this case expeditiously, has been complied with.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
45 Spl CC No.154/2014 46 Spl CC No.154/2014