Bangalore District Court
SPL.C/190/2017 on 4 September, 2018
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 4th DAY OF SEPTEMBER, 2018
- : PRESENT : -
SMT.M.LATHA KUMARI, M.A.,LL.M,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL.CC. NO.190/2017
Complainant :
The State of Karnataka by
D.J.Halli Police Station, Bangalore.
[Rep. by learned Public Prosecutor,
Bangalore.]
/ VERSUS /
Accused :
1. Noor Sharieff,
S/o Fakruddin,
Aged about 41 years,
R/at Near Vinayaka Theatre,
Muniyappa Block,
D.J. Halli,
Bengaluru - 560 045.
(By Sri. K.S.Haneef, Advocate)
2. Smt. Jabeen Taj
W/o Noor Sharieff
(absconding)
****
2 Spl.C.C 190/17
J U D G M E N T
This is a charge sheet laid down by D.J.Halli Police, Bangalore City against accused in Cr.No.26/2017 for offences punishable under Section 120 (B) & 376 r/w 34 of IPC and also Section 5(l) and 6 of Protection of Children from Sexual Offences Act 2012.
2. The story of the prosecution case as per the complaint Ex.P1 is that, victim aged about 15 years was residing along with her mother and also her mother's second husband i.e., accused-1 herein and her younger sister. Six months prior to 20.1.2017, she was residing in the house of her grandmother and came to her mother's house i.e., accused No.2 and started residing with them. When she was returned to her mother's house, the accused No.1 being step father started insisting her not to go to school and stopped her from going to school. Accordingly, she used to stay at home doing household works. Her step father used to harass her physically and also sexually. When she has informed about the same to accused No.2, accused No.1 assaulted her and also her mother. One day, when her mother, accused No.1 was not at home, accused No.1 insisted her to marry him. When she refused to marry accused No.1 stating that whether any daughter will marry father, accused No.1 had forcible sexual intercourse with her. Since accused No.1 used 3 Spl.C.C 190/17 to have forcible sexual intercourse with her repeatedly, she suffered and hurted severely and thereby tried to ran away from the house, by seeing her mother accused No.2 she kept quite. It is further stated that since 4 months, accused No.1 has committed forcible sexual intercourse with her once in every month and also started telling that once a day in a month is not sufficient and insisted her to have such physical relationship at least two days in a month and also started telling that, if she got marry with some one else, victim shall have physical relationship with him, failing which, accused No.1 asked her to get out from the house. On 6.1.2017, when victim was undergoing menstrual cycle, accused No.1 started pressurizing the victim to come to room to have physical relationship with him. Since, victim was suffering from severe stomach pain, due to her periods she got frightened and went to "mother's home"
situated at R.T. Nagar, from there she has been taken to Paraspara trust and from there, she came to R.T. Nagar Police station and also D.J. Halli police station and her statement came to be recorded on 20.1.2017 around 9 pm. Victim has also stated that she is not ready to stay with her parents and also not interested to see their face. If she returned to house again accused No.1 will hurt her by having physical relationship with her and hence expressed her willingness to stay in any of the state home/samsthe and to proceed with her studies.
4 Spl.C.C 190/17
3. In pursuance of this complaint, the complainant-police conducted spot mahazar on the next day as per Ex.P2. Victim statement came to be recorded by the learned Magistrate as per Ex.P3 which is also in accordance with her statement Ex.P1. She has been subjected to medical examination at Bowring hospital as per Ex.P6 and the Investigating Officer after securing accused and also subjecting him for medical examination as per Ex.P4 collected the study certificate of victim and secured FSL report and laid charge sheet against accused for the offences referred supra.
4. After receiving the charge sheet, this court on taking cognizance, framed Charges against the accused No.1 for the offences punishable under Section 376 of IPC r/w Section 5(l) r/w Section 6 of POSCO Act, 2012. Since the accused No.1 pleaded not guilty the prosecution was called upon to prove the guilt against the accused No.1. In this exercise, prosecution examined as many as 8 witnesses PW-1 to 8 and got marked as many as 10 documents Ex.P1 to P.10 and also three documents were marked on behalf of accused No.1 as per Ex.D1, D1(c) and D2 and no witnesses examined on behalf of defence. Accused No.1 statement under Section 313 Cr.P.C came to be recorded by explaining the incriminating evidence available against him 5 Spl.C.C 190/17 and as many as 32 questions were put to accused No.1. His answers and explanation has been recorded by this court on 18.8.2018 and the defence of the accused as per his explanation by way of answering to question No.31 put to him is that he is not at all having strength even to do with his wife, so also he don't have any strength to commit rape.
5. I have scrutinized the entire records placed before me. Heard arguments and also perused written arguments filed by the learned counsel for accused No.1.
6. With these submissions of both the parties, the points that arise for my consideration are as under:
1. Whether the prosecution has proved that CW-1 the victim girl was residing with accused No.1 step father and accused No.2 her natural mother and younger sister, the accused No.1 being step father used to harass her physically and also sexually and one day, accused had forcible sexual intercourse with her and since 4 months prior to 6.1.2017, accused has committed forcible sexual intercourse with her once in every month and also started telling that once a day in a month is not sufficient and insisted her to have such physical relationship 6 Spl.C.C 190/17 at least two days in a month and also started telling that, if she got marry with some one else, victim shall have physical relationship with him, failed which, accused asked her to get out from the house and thereby committed the offence punishable under Section 376 of IPC r/w Section 5(l) r/w Section 6 of Protection of Children from Sexual Offence Act, 2012?
2. What Order?
7. My findings on the above points are as under:-
Point No.1 : In the affirmative
Point No.2 : As per final orders for the
following
R E A S O N S
8. Point No.1: Prosecution to discharge its initial burden
firstly examined none other than the victim, complainant CW-1 as PW-1 before this court. In her chief-examination, victim has stated that accused No.1 is her step father. Absconding accused No.2 is her mother. Since her natural father Shabbir died, from the beginning she was residing in her grandmother's house. When she attained menarche, her mother i.e., accused No.2 brought her back to her house. At the beginning herself and her mother were residing in a house situated at Modi Road. Since her grand father died, they shifted their house and came 7 Spl.C.C 190/17 near Vinayaka Theater by taking a rented house. Everything was fine initially in the said house situated near Vinayaka Theater. Later accused no.1 started coming and sit next to her, when she was sleeping accused No.1 kissed her. She informed the same to her mother accused No.2 in this regard, there was quarrel taken place between accused No.1 and 2. Inspite of the same, accused No.1 continued to abuse PW-1 sexually. Her mother told her to question accused No.1 whenever he continuous to do such acts and also tell him that she is his daughter. One night when accused No.1 was sitting in the house, she questioned him stating that why he is behaving with her in such a manner. At that time, accused No.1 informed her that it is the mistake of victim who has considered him as her father and he always felt victim as his wife. PW-1 further states that, accused No.1 and 2 stopped her from going to school and made her to go for work. One day, when she was sitting at home without going for work, accused No.1 came to house and asked her to come to room, at that time, accused No.2 herself made the victim to go to the accused No.1's room. When she went to the room of accused No.1, he told victim that whenever she will go for work, before going to work she should kiss him everytime. When victim questioned why she should give kiss to him, accused No.2 made her to give kiss to him and made her to go to work after giving kiss to accused No.1. If victim failed to give kiss to 8 Spl.C.C 190/17 accused No.1 while going for work, on her return accused No.1 used to beat her. This was going on like for sometime. When accused No.1 was in the room, accused No.2 assaulted her and sent her to go to his room. Accused No.1 was holding her two hands, accused No.2 herself removed her pant/ bottom and also assaulted her with screw driver. Having noticed that her sister may come, both of them left her. Both accused persons behaved in similar manner on 3 to 4 occasions. She tried to get away from her house, but could not do it. One day, when herself and her younger sister were going to buy vegetables, she went to her grandmother's house and informed her about accused No.1 and 2. At that time, accused No.2 called victim's grandmother enquiring about victim. At that time, grandmother questioned accused No.2 about their attitude towards victim. At that time, accused No.2 came there and assaulted her and again taken her to her house and also informed accused No.1 when he returned house during night time. Accused No.1 in turn forcibly had sexual intercourse with her. Initially he used to do once in a month and later started insisting her to have two days in a month telling that one day is not sufficient. One day, during night time, accused No.1 by recording Nikha in his phone, made victim to listen to the same and also taken her signature on one form and told victim that as long as victim stay in the said house, victim shall cooperate with him. Even if she married 9 Spl.C.C 190/17 some other boy, she shall continue to do the same. Having annoyed by all this, victim left her house and ran away to an organization called 'mother's home' situated at R.T. Nagar, there she met one aunty and informed about her sufferings. She in turn brought her to R.T. Nagar Police station who enquired her and later she was sent to Paraspara Trust and also later she was brought before D.J. Halli police station and woman police enquired her and sent to state home and also recorded her statement as per Ex.P1. Police also conducted mahazar in her presence as per Ex.P2 near Vinayaka Theater house and later she was taken before the learned Judge, wherein her statement came to be recorded as per Ex.P3 and her signature marked as per Ex.P3(a). Later she has been subjected to medical examination at Bowring hospital. Victim further states that, accused No.1 used to remove her dress and used to sleep with her and used to do some thing by putting his private part into her private part. Victim PW-1 has been treated hostile only with regard to spot mahazar Ex.P2 and according to this victim, she has given address of her house situated near Vinayaka Theater and not present at the time of spot mahazar and only put her signature on the same. Victim has been cross-examined at length by then learned counsel for accused Sri.Syed Ummer, who is the counsel for accused even before the Hon'ble High Court of Karnataka while considering 10 Spl.C.C 190/17 the bail application of accused in Criminal Petition No.8328/2017. In her cross-examination, it is elicited that when victim's natural father died, victim was too young. After 12 to 13 years from the date of death of her father, victim again came to stay along with her mother accused No.2. She do not know when accused No.1 married accused no.2. She admits that since her childhood she was residing with her grand parents. She also deposes that, when she was in her grand parent's house, accused No.1 came there, but she did not talk to him. Her mother used to visit victim now and then in the house of her grand parents. She admits that she was unhappy with second marriage of her mother accused No.2 with accused No.1. She has denied the suggestion that whenever accused No.2 visited the grandparents house of victim, there used to be quarrel between accused No.2 and her mother i.e., grandmother of victim with regard to her second marriage. It is further elicited that victim's grandfather died on 23.7.2016. 4 to 5 months prior to the death of her grand father, victim came to her mother's house and started residing with them and she was studying in 6th standard at that time, later she joined Government school for 8th standard. Even in that school her mother did not allow her to study and made her to go to her grandmother's house by discontinuing her studies and later she has been taken to her mother's house by her mother herself.
11 Spl.C.C 190/17 It is also suggested that when victim was studying in 6th standard, accused No.1 himself has met her education expenses. PW-1 has denied the same. It is further elicited that, when she was studying in Government school her mother found one key chain in her bag, which was given to victim by her friend. Accused No.2 thinking that victim is having friendship with boys, discontinued her studies. Victim has denied the suggestion that in the same area, she developed love affair with one boy. She has also denied the suggestion that in view of the same, first accused himself assaulted her and made her to stop going to school. It is further elicited that in the house near Vinayaka Theater, there existed one room, hall kitchen and bath room and it was in the second floor. Victim admits that there existed some other residential houses by the side of said house and it is the busiest place. She also admits that, there existed furniture shop by the side of her house. She pleads ignorance about one Yasseen. She also deposes that at that time she is having one mobile phone and her mother only gave the said phone to her to make use of the same since, she was working as a telecalling, mobile phone was necessary for her work. She further states that she used to go for job from 10 am to 6 pm, some times 6.30 pm. She used to go by bus to work. Victim further states that herself and her younger sister used to sleep in the hall, accused No.1 and 2 were sleeping in room.
12 Spl.C.C 190/17 Accused No.1 used to return to house late night around 11 pm or 12 midnight, some times even 1 am. She has denied the suggestion that accused No.1 and 2 never available together for the victim. She admits that she was not liking accused No.1 and her mother used to like accused No.1 very much. She has denied the suggestion that since her mother used to like accused No.1 she was also not liking her father i.e., accused No.1 herein. She has denied any galata taken place between accused No.1 and her mother frequently. In her cross- examination the learned counsel for accused No.1 got marked three documents in the handwriting of victim as per Ex.D1, D1(c) and D2. She has stated that she do not know the date, when she has written Ex.D1, D1(c) and D2. She admits that in Ex.D2 there is discussion about victim marrying one Yaseen. She has denied the suggestion that in the said document Ex.D2 victim has also stated that she is not getting proper food and she is not interested to stay in the house and also stated that she do not like accused No.1 and hence she is going to her grandmother's house. In her further cross-examination, PW-1 deposes that she do not know the timings when she went to D.J. Halli police station along with N.G.O and further states that she did not go to D.J. Halli police station and went to R.T. Nagar police station. At the time of going to D.J. Halli police station she did not taken any written complaint with her and having 13 Spl.C.C 190/17 reached police station she has given the complaint. According to her, she herself prepared the complaint in writing at the police station, whereas, Ex.P1 the complaint appears to be like a printed one and she do not know who has written Ex.P1 and also where the said complaint has been written. She also admits that with regard to alleged incident when she reached police station, police asked her to put signature at Ex.P1, accordingly, she put the signature. Victim further deposes that while she was returning from school, she used to see the 'mother's home trust'. Accordingly, she was knowing about the same. She further states that in the said 'mother's home' one aunty taken her to R.T. Nagar police station and along with R.T. Nagar police, she reached D.J. Halli police. She do not remember the date of visiting D.J. Halli police station. She do not even know the date when he was taken to hospital for medical checkup and at that time one Lakshmi madam and also WPC present along with her. She do not know the name of doctor who examined her. She do not remember, at the time of her examination whether concerned doctor enquired her about the incident. Police have not collected her inner garments. She has denied the suggestion that after returning from hospital, victim is making allegation against accused No.2 and not prior to that. She has denied any love affair between herself and one Yaseen Carpenter by profession. She also denied the suggestion that in 14 Spl.C.C 190/17 view of the said love affair, accused No.1 assaulted her and stopped her from going to school. Victim deposes that the contents of Ex.D1 and D2 are prepared at the instructions of her mother. It is also elicited that whenever accused No.1 used to commit rape on minor victim, she used to scream. At that time, accused No.2 used to come and assaulted victim. Victim admits that if anybody talks loudly in her house, her neighbourers can hear. She pleads her ignorance that if anybody talks in her neighbourers house, they can hear the same. She admits that, at the time of alleged incident, her younger sister aged about 11 years also residing with her. She has denied the suggestion that no such incident taken place on her and she deposing before the court falsely. She has denied further that with regard to her love affair with one Yaseen a false complaint has been given against this accused No.1. Victim admits that a missing complaint came to be lodged against her by her mother at D.J. Halli police station itself. It is further elicited that when her mother married accused No.1, she left her mother's house and went to her grandmother's house and again she was brought back by her mother and later she went to 'mother's home trust'. She has categorically stated that she is not at all having any illwill in her mind against accused No.1.
15 Spl.C.C 190/17
9. CW2 mahazar witness was examined as PW-2 before this court. He has supported the case of prosecution. In his cross- examination, it is elicited that at the time of Ex.P2 victim came to the spot.
10. PW-3 Dr. Nagaraju speaks about examination of accused No.1. In his chief-examination he has deposed that, at the time of his examination of accused No.1 he has given self statement before him stating that since victim's father died, this accused with an intention to support victim's family, he was willing to marry victim and with her consent maintained physical relationship with victim frequently. Medical report of accused No.1 is as per Ex.P4. In his cross-examination, it is elicited that the hand writing available in Ex.P4 is handwriting of PW-4. It is also elicited that as per Lugol's Iodine Test, he has expressed his opinion in Ex.P4. He has denied the suggestion that inspite of involving in sexual activity, if such person takes bath, Lugol's Iodine Test will be negative. It is also elicited that accused himself has given his self statement before him as narrated in Ex.P4. It is further elicited that, witness himself has explained the contents of Ex.P4 and he has given his explanation in Kannada. He was speaking in Kannada language at that time.
11. PW-4 Munikrishna, the Police Inspector speaks about investigation done by him. The learned counsel for accused 16 Spl.C.C 190/17 Sri.S.U failed to crossexamine this witness inspite of providing an opportunity.
12. PW-5 the councilor from Woman and Child Welfare Department was examined as PW-5. Even she has supported the case of prosecution and deposed about statement of victim recorded by her at Bowring hospital special room as per Ex.P9. She has also stated that, victim in her statement recorded by her has stated that accused No.2 being her stepfather used to subject minor victim for sexual violence by putting his finger into her vagina and also he has committed forcible sexual intercourse on her four times, once in a month continuously for four months. Ex.P9 is in accordance with the statement of victim recorded by the learned Magistrate as per Ex.P3 and also complaint Ex.P1.
13. PW-6 is the doctor who examined victim. This witness speaks about her report as per Ex.P5 and also stated that during her examination, victim has stated before her, telling that her stepfather had sexual intercourse with her and inspite of her mother was aware about the same, insisted victim to cooperate with accused No.1. As on the date of examination, according to the oral testimony of this witness, victim was aged about 15 years, hymen was not intact at that time. She also noticed that there are some evidence of victim having 17 Spl.C.C 190/17 subjected to sexual activity recently and also some injuries on her both knees and right wrist.
14. PW-7 Woman Police Constable deposes that victim has been taken to Bowring hospital for medical examination.
15. PW-8 Anjanamurthy Constable speaks about arrest of accused near D.J. Halli Vinayaka Theater in this case.
16. Accused was initially represented by the learned Advocate Sri.Syed Ummer, who also represented the accused before the Hon'ble High Court. Later on 16.3.2018, Sri.S.U filed retirement Memo and accused prays for some time to engage counsel of his choice and on 11.4.2018, Sri. K.S.H filed Memo of Appearance along with orders of the Hon'ble High Court .
17. However, Sri. K.S.H, the learned counsel for accused who came on record at subsequent stage failed to cross- examine PW-4 to 8 before this court inspite of providing sufficient opportunity. From the cross-examination of PW-1 and also from the documents Ex.D1, D1(c ) and D2, the defence of accused No.1 is that, victim had love affair with one Yaseen, carpenter, since accused No.1 assaulted victim in this regard and made her to stop going to school, a false case has been 18 Spl.C.C 190/17 created against him. Accused No.1 statement came to be recorded on 18.8.2018. Accused No.1 by denying the entire case of prosecution while answering question No.31 stated that he is not at all having so much strength even to do the same with his wife. He is not even having strength to rape victim. Victim's grand mother brought victim to his house. He having taken care of providing food and other needs of victim admitted her to school, whereas victim used to talk to some boys. Later he put her on work on two different places. Even there victim used to talk to some other boys. Accordingly, his wife used to beat victim. He himself made arrangements to perform the marriage of victim with some other boy. For all these reasons, victim is doing with her in this manner. The victim before this court has deposed that accused No.1 used to assault her sexually and asked her to cooperate with him for physical relationship and also had sexual intercourse with her monthly once. Even before doctor, CW-6 victim has stated that her step father i.e, accused No.1 committed rape on her. Even the doctor who examined accused i.e., PW-4 has stated before this court that accused No.1 has given self statement before him stating that with an intention to support victim and her family, he was desirous of marry her and with her consent he was having physical relationship with her. Though victim PW-1, doctor PW- 3 having cross-examined at length by then counsel for accused 19 Spl.C.C 190/17 Sri.S.U nothing much has been elicited so as to disbelieve the version of victim. In the chief-examination of victim, she has stated that she was not present at the time of spot mahazar Ex.P2. Though she admits her signature on Ex.P2 which is as per Ex.P2(a). Whereas, in the cross-examination of PW-2 mahazar witness, the learned counsel for accused himself elicited that victim was also very much present at the time of spot mahazar as per Ex.P2.
18. It is the explanation of accused that, he is not at all having strength to rape the victim and he cannot carryout such activity even with his own wife, due to lack of strength. Whereas, according to his medical report, which is as per Ex.P4, the expert i.e., PW-3 has opined that accused No.1 is capable enough to carryout sexual activity. The self statement available in Ex.P4 and also the statement of victim available in Ex.P1 to P3 and her medical report Ex.P6 and her oral testimony before this court establishes that accused No.1 by taking advantage of the situation committed repeated forcible sexual intercourse with victim. By producing Ex.D1, D1(c ) and D2, then learned counsel for accused Sri.S.U contended that victim was having an affair with one Yaseen. In this regard, now let me go through the document produced on behalf of defence, more particularly Ex.D1 (c). This document though written in 20 Spl.C.C 190/17 English, the language narrated is Hindi. This court is having knowledge of Hindi and scrutinized the documents carefully. In the first para of this document, victim has stated that she is writing said letter according to her own wish and same is not within the knowledge of anyone. In the second para she has stated that "on the moonlight day her mother's husband called her mother and asked victim to give in marriage to him. On that day, she was not at home and 9 pm she left to her grandmother's house. Her mother called her grand mother through phone and asked her to come to her house, so also her mother's mother-in-law. When her grandmother and also mother-in-law of accused No.2 came to her house, they made the victim to go out of the house and they themselves were quarreling in the house. She do not know the reason for said quarrel. Later she was called inside the house and they were talking that even they were willing to get the victim's marriage done and her family members though not liking accused No.1, they were scared to inform the same that they are liking him. Victim further states that she will marry him, so that he will take care of the family members". In this letter as I have already stated the person referred was accused No.1 as narrated in second para of the letter. Whereas, the word ammi ke husband has been strike off and shown as Yaseen, which is in different ink, so also at 19th line in para No.2. From this 21 Spl.C.C 190/17 document Ex.D1 (c ) produced and relied upon by the accused it is crystal clear that accused No.1 discussed with accused no.2 to marry victim and also asked accused No.2 to give her daughter to him. This version narrated in admitted document Ex.D1 (c ) produced by accused No.1 himself is also forthcoming in the medical report Ex.P4 and PW-3 has stated that accused No.1 in his self statement stated before him that he was desirous of marrying victim and thereby had sexual intercourse with her, with her consent. If this letter was not within the knowledge of the accused No.1 and not written in his presence, how accused No.1 came in possession of these documents is not explained by him. PW-1 in her cross-examination has stated that, she prepared Ex.D1, D1(c) & D2 at the instance of her mother i.e, accused No.2. It is the case of prosecution that, accused No.2 insisted victim to co-operate with accused No.1 and thereby allow him to have sexual intercourse with victim. This is forthcoming even in the medical report of victim which is as per Ex.P6. The age of victim is shown as 15 years in Ex.P6 and also as per Ex.P7 as on the date of incident. She is a child according to Section 2(d) of POCSO Act, 2012. She has narrated the manner of occurrence in detail during her oral examination before this court and her version has not been shaken by accused inspite of victim subjected to lengthy cross examination by making the victim to appear before this court on 22 Spl.C.C 190/17 two occasions i.e., 28.8.2017 and also on 30.8.2017. As per medical reports hymen of victim is also not intact. Accused in his statement under Section 313 Cr.P.C only stated that victim was talking to other boys. Accordingly, he thought of performing the marriage of victim with some other person. It is not the contention of accused No.1 that victim has been subjected to sexual activity by some other person. Further, no contrary material produced in this regard as required under Section 29 of POCSO Act, 2012. Victim PW-1, spot mahzar witness PW-2, counselor PW-5 gave the same description of the incident. PW-2 has denied the suggestion in his cross- examination that victim was always residing at her grandmother's place and never visited the house of accused No.1 and 2. On the other hand, accused No.1 himself states in his statement that he brought the victim to his house and admitted her to school and also provided food, shelter etc. According to PW-6, hymen of victim was not intact and she is of the opinion that victim is used to an act like that of sexual activity. Considering these oral and documentary evidence discussed supra in its entirety, the same will establishes that accused No.1 taking advantage of the tender age of victim exploited her sexually and committed repeated sexual intercourse with her. If accused No.1 and 2 had taken care of victim like that of her parents, there was no reason for victim 23 Spl.C.C 190/17 to ran away from home and to take the shelter in an organization like 'mother's home' and later at 'Paraspara Trust' . The oral testimony of PW-1 recorded on oath depicts the violence, frustration undergone by victim in the hands of accused No.1 and 2, more particularly, accused No.1. Under such circumstances, there is no reason to disbelieve the oral and documentary evidence relied upon by the prosecution. Accordingly, I hold point No.1 in the Affirmative.
14. POINT NO.2: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(2) of Cr.P.C Accused is found guilty of the offence punishable under Section 376 of IPC r/w Section 5(l) r/w Section 6 of POCSO Act 2012.
To hear regarding sentence.
(Dictated to the Stenographer, transcript corrected and then pronounced by me in open court on this the 4th day of September, 2018.) (M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
24 Spl.C.C 190/17 ORDER ON SENTENCE Heard accused and learned Public Prosecutor regarding the sentence.
2. The accused submits that the he is having aged mother and two children and only bread earner in the family and prays for leniency.
3. The learned Public Prosecutor has submitted that Prevention of Children from Sexual Offences Act 2012 being special enactment came into existence to protect sexual exploitation and sexual abuse of children effectively. The accused herein is a step farther of victim herein, has become nightmare for victim. No leniency can be shown to accused.
4. Accused was aged about 41 years as on the date of occurrence. He has committed heinous offences like rape on his step daughter aged about 12 years when she was residing with him. The Hon'ble Supreme Court in a citation reported in 2014 Crl. L J 3246 Sumer Sing Vs. Suraj Bansing and others observed that "it is the duty of court to impose adequate sentence, for one of the purposes of imposition of requisite sentence is protection of the society and a legitimate response to the collective conscience. The paramount principles that should be guiding laser beam is that the punishment should be 25 Spl.C.C 190/17 proportionate. It is the answer of law to the social conscience.
In a way, it is an obligation to the society which has reposed faith in the court of law to curtile the evil while imposing the sentence it is the court's accountability to remind itself about its role and the reverence of rule of law". Relying upon these principles laid down by the Hon'ble Supreme court and the gravity of the offences and its impact on minor girl aged about 12 years, the cause of justice would be met if the accused is sentenced to undergo imprisonment for life apart from the fine of Rs.50,000/- for the offences Section 376 r/w Section 5(l) r/w Section 6 of POCSO Act 2012.
5. Further, relying upon the provisions of Rule 7(2) and Rule 7(4) of POCSO Act, considering the gravity of the offence and the severity of the mental and physical harm suffered by the victim girl and also poor economical status of the victim forthcoming in her medical report Ex.P6, as per the notification No. HD 1 PCB 2011 dated 22.2.2012 Rs.3,00,000/- by way of compensation to victim is awarded. The same shall be made over to the victim by the Karnataka State Legal Services Authority.
6. Considering these facts and circumstances, I proceed to pass the following ORDER Acting under Section 235(2) of Cr.P.C.
accused is hereby convicted for offences punishable under Section 376 of I.P.C r/w 26 Spl.C.C 190/17 Section 5(l) r/w 6 POCSO Act 2012 and sentenced to undergo imprisonment for life and he shall also pay a fine of 50,000/-, in case of default to pay the fine amount, he shall undergo Simple Imprisonment of another one year.
Relying upon the provisions of Rule 7(2) and Rule 7(4) of POCSO Act, considering the gravity of the offence and the severity of the mental and physical harm suffered by the child and also poor economical status of the victim forthcoming in her medical report, as per the notification No. HD 1 PCB 2011 dated 22.2.2012 Rs.3,00,000/-
by way of compensation to victim is awarded. The same shall be made over to the victim by the Karnataka State Legal Services Authority, (K.S.L.S.A).
In case accused deposit fine amount of Rs.50,000/- as ordered by this court, the same shall be adjusted towards the compensation.
Accused is entitled for set off as per the provisions of Section 428 of Cr.P.C.
Office is directed to send copy of this judgment be sent to the Member Secretary, K.S.L.S.A forthwith for information and compliance.
Bail bond of the accused stands cancelled.
27 Spl.C.C 190/17 Free copy of this Judgment to be supplied to the accused.
(Dictated to the Stenographer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 4th day of September,2018.) (M.LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
A N N E X U R E
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
PW.1 Victim girl
PW.2 Syed Yasin
PW.3 B.M. Nagaraju
PW.4 Munikrishna
PW.5 Smt. Lakshmidevi
PW.6 Dr. Spandana
PW.7 Mahadevakka B
PW.8 Anjanamurthy
LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Complaint Ex.P 1(a) Signature of PW-1 Ex.P2 Spot panchanama Ex.P 2(a) Signature of victim Ex.P3 Statement of victim u/Sec 164 of Cr.P.C Ex.P 3(a) Signature of victim Ex.P4 Medical report of accused 28 Spl.C.C 190/17 Ex.P4(a) Signature of PW-3 Ex.P4(b) Signature of accused Ex.P5 F.I.R Ex.P5(a) Signature of PW-4 Ex.P6 Medical report of victim Ex.P6(a) Signature of PW-4 Ex.P7 T.C. Ex.P7(a) Signature of PW-4 Ex.P8 F.S.L report Ex.P8(a) Signature of PW-4 Ex.P9 Report of councilor Ex.P9(a) Signature of PW-5 Ex.P10 Report given by PW-7 Ex.P10(a) Signature of PW-7 LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE Ex.D1 Xerox copy of letter Ex.D1(a) Signature of victim Ex.D1(b) Signature of victim Ex.D1(c ) Original letter Ex.D2 Letter LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-Nil -
(M.LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
29 Spl.C.C 190/17 *** 30 Spl.C.C 190/17 04.09.2018 Judgment pronounced in the open court, operative portion of which reads as under:-
ORDER Acting under Section 235(2) of Cr.P.C Accused is found guilty of the offence punishable under Section 376 of IPC r/w Section 5(l) r/w Section 6 of POCSO Act 2012.
To hear regarding sentence.
(M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
Orders on Sentence pronounced in the open court, operative portion of which reads as under:-
ORDER Acting under Section 235(2) of Cr.P.C. accused is hereby convicted for offences punishable under Section 376 of I.P.C r/w Section 5(l) r/w 6 POCSO Act 2012 and sentenced to undergo imprisonment for life and he shall also pay a fine of 50,000/-, in case of default to pay the fine amount, he shall undergo Simple Imprisonment of another one year.
31 Spl.C.C 190/17 Relying upon the provisions of Rule 7(2) and Rule 7(4) of POCSO Act, considering the gravity of the offence and the severity of the mental and physical harm suffered by the child and also poor economical status of the victim forthcoming in her medical report, as per the notification No. HD 1 PCB 2011 dated 22.2.2012 Rs.3,00,000/-
by way of compensation to victim is awarded. The same shall be made over to the victim by the Karnataka State Legal Services Authority, (K.S.L.S.A).
In case accused deposit fine amount of Rs.50,000/- as ordered by this court, the same shall be adjusted towards the compensation.
Accused is entitled for set off as per the provisions of Section 428 of Cr.P.C.
Office is directed to send copy of this judgment be sent to the Member Secretary, K.S.L.S.A forthwith for information and compliance.
Bail bond of the accused stands cancelled. Free copy of this Judgment to be supplied to the accused.
(M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
32 Spl.C.C 190/17 Government of Karnataka FORM No.34 Warrant of Commitment on a sentence of imprisonment Or fine if passed by a Magistrate (See Section 248 and 255) To, The Officer incharge of the Jail at Bangalore. Whereas on the 4th day of September , 2018 (Name of Prisoner) Noor Sharieff, S/o Fakruddin, Aged about 41 years, (the 1st ,2nd ,3rd as the case may be). R/at Near Vinayaka Theatree, Muniyappa Block, D.J. Halli, Bengaluru 560 045, prisoner in Case Spl.C.C.No.190/2017 (of the calendar for 2018), is convicted before me (name and official designation) Smt. M.Latha Kumari, LIII Addl.City Civil Court, Bangalore for the offences of (mention the offence or offences concisely) under Section 376 of IPC r/w Section 5(l) r/w Sec. 6 of Protection of Children from Sexual Offence Act, 2012 (or Section of the Indian Penal Code) or of.........................................Act.......................), and is sentenced to (state the punishment fully and distinctly) P.T.O. This is to authorize and require you to receive the said (Prisoner's name) Noor Sharieff, S/o Fakruddin, into your custody in the said jail, together with this warrant, and thereby carry the aforesaid sentence into execution according to law.
Dated, this THE 4TH day of September , 2018.
33 Spl.C.C 190/17 (M. LATHA KUMARI) LIII Addl.City Civil & Session Judge, ORDER Acting under Section 235(2) of Cr.P.C.
accused is hereby convicted for offences punishable under Section 376 of I.P.C r/w Section 5(l) r/w 6 POCSO Act 2012 and sentenced to undergo imprisonment for life and he shall also pay a fine of 50,000/-, in case of default to pay the fine amount, he shall undergo Simple Imprisonment of another one year.
Relying upon the provisions of Rule 7(2) and Rule 7(4) of POCSO Act, considering the gravity of the offence and the severity of the mental and physical harm suffered by the child and also poor economical status of the victim forthcoming in her medical report, as per the notification No. HD 1 PCB 2011 dated 22.2.2012 Rs.3,00,000/-
by way of compensation to victim is awarded. The same shall be made over to the victim by the Karnataka State Legal Services Authority, (K.S.L.S.A).
In case accused deposit fine amount of Rs.50,000/- as ordered by this court, the same shall be adjusted towards the compensation.
Accused is entitled for set off as per the provisions of Section 428 of Cr.P.C.
Office is directed to send copy of this judgment be sent to the Member 34 Spl.C.C 190/17 Secretary, K.S.L.S.A forthwith for information and compliance.
Bail bond of the accused stands cancelled. Free copy of this Judgment to be supplied to the accused.
(M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.