Bangalore District Court
State By Byatarayanapura Police vs Abdul Khadar @ Rafiq on 26 September, 2019
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the, 25 th day of September, 2019.
Present: SMT.R.SHARADA,B.A. M.L
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO. 30/2016
COMPLAINANT: State by Byatarayanapura Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Abdul Khadar @ Rafiq,
son of Late. Usman Sab,
Aged 45 years,
Residing at: Near Aahat Medical,
3rd Cross, 7th Main Road, Shammanna
Garden, Bangalore City.
[The accused is in the judicial custody ]
[By Advocates Sri.P.R.Bhat,
Ms.Jayanthi, Ms.JyothiLakshmi.N.K]
1. Date of commission of From 13.9.2014 to 20.9.2015
offence
2. Date of report of 13.10.2015
occurrence of the offence
3. Date of arrest of accused 13.10.2015
Since the date of his arrest, the accused is in
the judicial custody till date.
4. Date of commencement of 19.1.2017
evidence
2 Spl CC No. 30/2016
5. Date of closing of evidence 17.9.2019
6. Name of the complainant Smt.Ruksana Taj complainant as well as the
mother of the victim girl
7. Offences complained of Secs. 376, 506(B) of IPC and Secs. 4, 6
and 8 of POCSO Act, 2012.
8. Opinion of the Judge The accused is convicted for the offences
punishable under Sec.376 of IPC and
Sec. 6 of POCSO Act, 2012 and
Sec.506(B) of IPC..
JUDGEMENT
The Police Inspector, Byatarayanapura police station has filed charge-sheet against the accused for the offences punishable under Secs. 376, 506(B) of IPC and Secs. 4, 6 and 8 of POCSO Act, 2012.
2. It is the case of the prosecution that, the accused being the step-father of CW2/ victim girl aged 14 yeas, residing in the house bearing No.6, Ground Floor, 7th Cross, 3rd Main Road, Shamanna Garden, Mysore Road, coming within the jurisdiction of Byatarayanapura police station, since one year prior to 13.10.2015 continuously committed sexual intercourse with her and further that on 20.9.2015, when CW1 had gone to Tumkur to bring ration on that day at night, the accused forced CW2 and had sexual intercourse with her by showing knife. Thereafter the accused also threatened CW2/ victim girl that he would kill her if she discloses the said sexual assault committed by him on her to anyone. Thereby, the accused has committed the offences punishable under Secs. 376, 506(B) of IPC and Secs. 4, 6 and 8 of POCSO Act, 2012.
3 Spl CC No. 30/2016Initially on the basis of the complaint lodged by the complainant who is none other than the mother of the victim girl stating that her daughter/ victim girl was aged 14 years born to her out of the wedlock from her first husband. The accused herein is the 2 nd husband of the complainant and whenever she [ complainant] was out of the house, the accused used to have sexual intercourse with the victim girl forcibly by showing knife and keeping her under threat. Hence, the complainant requested the complainant police to take action against the accused. On the basis of the said complaint, the complainant police have registered a case in Cr.No.528/2015 against the accused for the offences punishable under Sec.376, 506(B) of IPC and Secs. 3, 4, 5, 6, 7, 8 of POCSO Act, 2012 and commenced investigation. During the course of investigation, the complainant police have arrested the accused and after completion of investigation, the Investigation Officer has filed charge-sheet against the accused for the offences punishable under Secs. 376, 506(B) of IPC and Secs. 4, 6 and 8 of POCSO Act, 2012.
3. During the course of investigation, the accused was arrested on 13.10.2015 and he was taken to remand and remanded to judicial custody. Since the date of his arrest, till date, the accused is in the judicial custody. Copies of the charge-sheet were furnised to the accused under Sec.207 of Cr.P.C. Thereafter Charges are framed and read over and explained to the accused, to which, the accused pleaded not guilty and claims to be tried. Accordingly, summons issued to the charge-sheet witnesses.
4 Spl CC No. 30/20164. The prosecution has examined as many as 20 witnesses as PWs-1 to 20 and got marked Exs.P1 to P13 documents, besides marking MO-1. Thereafter Statement of the accused recorded under Sec.313 of Cr.P.C. The accused has denied all the incriminating evidence told to him. He has examined one witness as DW1 but no documents are marked on his behalf.
5. Heard the arguments of the learned Public Prosecutor and the learned counsel for the accused. Considering the facts of the case and the acts of the accused the offence falls under Sec.376 of IPC and under Sec.6 of POCSO Act, 2012, but my learned Predecessor has charged the accused for the offences punishable under Secs. 4 and 8 of POCSO Act, 2012 which also fall within the ambit of Sec.6 of POCSO Act, 2012 and the offences are comparatively minor offences, as such, the accused is dealt with the offence as defined under Sec.5 of POCSO Act, 2012 punishable under Sec.6 of the said Act. Thereby, the following Points would arise for my consideration:
1. Whether the prosecution proves that, the accused being the step-father of CW2/ victim girl aged 14 yeas, residing in the house bearing No.6, Ground Floor, 7th Cross, 3rd Main Road, Shamanna Garden, Mysore Road, coming within the jurisdiction of Byatarayanapura police station, since one year prior to 13.10.2015 continuously committed sexual intercourse with her and further that on 20.9.2015, when CW1 had gone to Tumkur to bring ration on that day at night, the accused forced CW2 and had sexual intercourse with her by showing knife.
thereby the accused has committed the offence of rape/ aggravated penetrative sexual assault on the 5 Spl CC No. 30/2016 victim girl, punishable under Sec.376 of IPC and Sec. 6 of POCSO Act, 2012?
2) Whether the prosecution further proves that, on the said date, time and place the accused being the step- father of the victim girl committed the offence of rape/ aggravated penetrative sexual assault on her repeatedly, as stated above and also put her life threat by showing a knife, thereby the accused has committed an offence punishable under Sec.506(B) of IPC?
3) What Order?
6. My findings on the above points are as under:
Point Nos.1 and 2 : In the AFFIRMATIVE Point No .3: As per the final order, for the following:
REASONS
7. POINT NOS.1 AND 2:- Since these Points are interlinked, taken up for common discussion in order to avoid repetition of facts.
8. During the course of arguments, the learned Public Prosecutor during the course of arguments submitted that, the prosecution has proved the guilt of the accused beyond all reasonable doubts. The Victim girl is none other than the step-daughter of the accused who was residing with her mother and also the accused under same roof despite the accused without taking into consideration the relationship between himself and the Victim girl has committed the offence of aggravated penetrative sexual assault on the Victim girl which is heinous in nature. The evidence given by the Victim girl herself and her mother and her 6 Spl CC No. 30/2016 aunts and maternal uncles sufficiently proves the guilt of the accused. Further the defence has not led any evidence as required under Sec.29 of POCSO Act, 2012. With this the learned Public Prosecutor prays to convict the accused for the alleged offences, in the interest of justice and equity.
9. Per contra, the the learned counsel for the accused during the course of arguments submitted that, the prosecution has not proved the guilt of the accused as alleged against him beyond all reasonable doubts. There is no any independent witnesses examined by the prosecution in the above case. PW3 is none other than the mother of the Victim girl , PW2 and PW4 are the sisters of PW3, PW7 and PW9 are the brothers of PW3, hence, it is very natural all these witnesses support the Victim girl. Thereby their evidence has to be scrutinized carefully . The other witnesses who are none other than the police officials, Medical Officers, Assistant Engineer and Investigating Officer have deposed before the court according to the duties discharged by them. Hence, only on the basis of their evidence the accused cannot be convicted. Further the Learned counsel for the accused is aged about 45 years and he is the second husband of PW3 having 4 children from her such being the situation, it cannot be believed that the accused has committed aggravated penetrative sexual assault on the Victim girl who is his step-daughter. Further he submitted that after PW3 got married with this accused and after begotten children, through him, she developed extra-marital relationship with another person. When this was questioned by the accused, then she colluded her sisters and brothers, thereby, implicated the accused in this false 7 Spl CC No. 30/2016 case. Even the accused has also narrated the same before the court when his statement under Sec.313 of Cr.P.C recorded. With all these, the learned counsel for the accused prays to acquit the accused from the alleged offences, in the interest of justice and equity.
10. In the course of trial of this case, the prosecution in all has examined 20 witnesses as PWs-1 to 20 and got marked 13 documents as Exs.P1 to P13 and MO-1. The accused has not lead any defence evidence. But, in the statement under Sec.313 of Cr.P.C the accused has stated as if his wife/PW3 had developed extra-marital affairs with another person and when objected for it, she has given a false complaint against him.
11. In order to understand the nature of the evidence given by the prosecution witnesses, I would like to bifurcate the witnesses for convenience of understanding the relevancy of their evidence in two parts. The first part consists of Pws-1, 2, 3, 4, 7 9 and 18 and 2nd part consists the rest of the witnesses.
12. PW1 is the victim girl, Pws-2 and 4 are her senior aunty, PW3 is the mother of the victim girl, Pws-7 and 9 are the maternal uncles of PW1. The evidence of these witnesses is relevant to know the worthiness of the prosecution allegations. PW5 is a witness to the spot mahazar. Pws-6 and 8 are the witnesses to the seizure mahazar under which MO-1 was seized. PW10 is the Doctor who examined the accused. PW11, PW12, PW13 , PW15, PW16, PW17, PW18 are the police officials, PW20 is the Investigation Officer of 8 Spl CC No. 30/2016 this case. PW14 is the Assistant Engineer to prepared the sketch of the spot of occurrence and PW19 is the Doctor who has issued the C/C of MLC Register pertaining to the victim girl.
13. With this birds view, I shall now take up the evidence of the material witnesses referred to above for assessment.
14. PW1 is the victim girl who has in her evidence stated hat PW3 is her mother and the accused is her step-father. That her mother married this accused after the death of her father when she was yet a child and that his mother got 4 children through this accused and they were all living together. It is her further evidence that, PWs-2 and 4 are her senior aunts and PWs-7 and 9 are her maternal uncles living separately in the same area. That she was for sometime staying with her maternal grandmother thereafter her mother brought her back to her house and she was studying in 9th standard during the year 2015. When it was so, her mother used to go to Tumkur for buying provision through the Ratio Card issued by the Government since the accused had maintained the Ration Card of his mother at Tumkur. Whenever her mother used to go to Tumkur for purchasing provisions she used to stay one night there and return to Bangalore on the next day as per the instructions of the accused. The accused in the absence of her mother during such absence of her mother started abusing her for sexual assault by threatening her with a knife that if she do not co- operate he will kill her and also her mother and stated that the victim girl shall not disclose that sexual abuse to anybody and specifically stated that on 20.9.2015, the accused committed rape 9 Spl CC No. 30/2016 on her by giving life threat and similarly he had committed rape on her for about one year and stated that because of the threat given by the accused, she did not disclose the said act to her mother [PW3] but she had told the same to her senior aunts and her maternal uncles when she was taken to the house of her senior aunt CW11/PW2. The witness further stated that when she was in the house of PW2, her mother thinking that she may be in the house of PW7 went in search of her and after knowing that she was not there and was in the house of PW2, her mother called her to go with her but she refused to go. When they all questioned her, she stated to had revealed the sexual assault committed by the accused against her.
15. The witness further stated that her mother, her senior aunts and her maternal uncles took her to the police station and her mother gave a complaint to the police and stated to had been referred to Hospital and recording of her statement by a Magistrate and stated that her statement given before the Magistrate was also video recorded and referring the accused in the witness box refused to look at the accused during the course of recording her evidence.
16. PWs-2, 4, 7 and 9 who are the senior aunts and maternal uncles of PW1 have with corroboration deposed stating that they after having come to know the agony of sexual assault committed by the accused while she was in her house in the absence of her mother, questioned the accused but he did not respond to them and when PW1 was in the house of PW2, the 10 Spl CC No. 30/2016 accused compelled them to send her back, they refused to send her after having come to know this accused abusing PW1 for sexual acts. The evidence of this PWS-4, 2, 7 and 9 so far as the act of the sexual assault committed by the accused stands consistent and corroborative.
17. No doubt there is some discrepancies in the evidence of PWS-2, 7 and 9 who have stated as if that PW2 came to know from PW3 that the accused was in the habit of putting his hands on the breasts of the victim girl and PWS-7 and 9 had observed the similar acts by themselves and that is not supported by WP3 but the evidence of these witnesses gets corroboration from the evidence of PW1 with regard to the fact that PW1 had told all of them regarding this accused repeatedly committing rape on this victim girl.
18. PW3 the mother of the victim girl in her evidence had stated that when she was going to Tumkur to buy provisions through Ration Card the accused was telling her to stay back at night in Tumkur and to return to Bengaluru on the next day and she was following the same. She has further stated that her elder brother-PW7 was talking about the marriage of PW1, took her to his house for showing the victim girl to the proposed boy, but the accused refused to send her and objected for keeping the victim girl in the house of PW9 and was insisting her to bring PW1 back by telling as if he cannot live without PW1 and therefore stated hat she came to know from PW1 that this accused committing 11 Spl CC No. 30/2016 aggravated penetrative sexual assault on PW1 during her absence in the house.
19. PW1 is examined in chief on 19.1.2017. PWS-2 to 4 were examined in chief on 8.2.2017. PWS-7 and 9 were examined on 11.3.2017 and 17.3.2017 respectively. Thereafter, after lapse of long time, PW1 was cross-examined on 30.8.2017, PW2 has been cross-examined on 28.6.2019, PW3 was cross-examined n 25.9.2017. PW4 was cross-examined on 28.6.2019. PWS-7 and 9 are not at all subjected to cross-examination by the learned defence counsel. In the cross-examination of PWS-1 to 4, except making certain suggestions, the learned counsel for the accused has not at all put any suggestions or questions to contradict them from what has been told by them about the accused committing repeated rape on the victim girl by posing threat to the life of PWS-1 and 3. It is even in the cross-examination of PW1, the learned defence counsel suggested as if her senior uncles quarreled with the accused and when they pushed the accused, he fell and suffered a fracture for which this witness denied and stated that Pws-7 and 9 had assaulted the accused on account of he having had committed rape on her. Further in the cross-examination of PWS-3 and 4, suggested as if PW3 had some extra-marital relationship with another person and therefore, she has given a false complaint. That suggestion is denied by the witness. Thus, the evidence of Pws-1 to 4 with regard to the overt-acts of the accused has remained un-impeached and I find no worthful evidence elicited in their cross-examination to discard their testimony. With this, I shall 12 Spl CC No. 30/2016 now go to the evidence of PW10 who is a Doctor appeared before this court and produced the MLC Extract of Vani Vilas Hospital where the victim girl was examined by the Doctor by name Dr.Veena, as the Doctor said to have gone abroad and she could not be secured. The MLC Report of the victim girl is marked as Ex.P11. On perusal of this document-Ex.P11, clearly points to the examination of PW1/ victim girl and on examination her "Hymen of the victim girl not in-tact, 2 fingers could be inserted freely in her vagina". The history said to have been given by the mother naming the accused for the crime. The learned defence counsel has not cross-examined PW19 nor questioned the correctness of the entries in Ex.P11. Therefore, the material evidence that PW1 was subjected to sexual assault remained un-questioned.
20. Ex.P13 is the Study Certificate of the victim girl issued by the School wherein the victim girl was studying and the date of birth of the victim girl is shown as 9.6.2000 which clarifies tha thte victim girl was about 15 years during the period that PW1 was subjected to aggravated penetrative sexual assault and this document has also not been questioned.
21. PW5 is the witness to spot mahazar. PWs6 and 8 are the seizure mahazar witness to the knife. The spot of occurrence is not in dispute. Seizure of the MO-1 it was used by the accused for threatening the victim girl has also not been disputed since those witnesses are not subjected to cross-examination.
13 Spl CC No. 30/201622. Now coming to the evidence of the police officials, out of them PW11-Woman PC has deposed before the court that, on 13.10.2015, as per the orders of CW27 she took the victim girl accompanied by her mother to Vani Vilas Hospital for medical examination and after medical examination, she brought back the victim girl and produced before the PI and given report. She has further deposed that, on 30.10.2015, she has collected the articles pertaining to the victim girl from Vani Vilas hospital and produced the same before CW28 and given Report which is the xerox copy. Thereby this witness has performed her statutory duty by taking the victim girl to the hospital for medical examination. This witness was cross-examined by the learned counsel for the accused. In her cross-examination, she has denied the suggestion that on 13.10.2015 she has not taken the victim girl to the hospital for medical examination. She has also denied the suggestion that, at the instance of her higher officers, she is deposing falsely.
23. PW12 is the ASI who deposed before the court that on 13.10.2015, as per the orders of CW27 he took the accused to Victoria Hospital for medical examination and after medical examination, he brought back the accused and produced before the PI and given Statement. Thereby this witness has performed his statutory duty by taking the accused to the hospital for medical examination. This witness was cross-examined by the learned counsel for the accused. In his cross-examination, he has denied the suggestion that on 13.10.2015 he has not taken the accused to the hospital for medical examination. He has also denied the 14 Spl CC No. 30/2016 suggestion that, at the instance of his higher officers, he is deposing falsely.
24. PW13- Head Constable has deposed before the court that on 23.11.2015, as per the orders of CW28, he took the Assistant Engineer-CW18 to the spot of occurrence, so he took CW18 to the house of accused bearing No.6, Ground Floor, 3 rd Main road, 7th Cross, Shamanna Garden, Mysore Road, Bangalore and CW18 prepared the sketch of the spot of occurrence. He has given statement before the Investigation Officer in this regard. Thereby this witness has performed his statutory duty by showing the spot of occurrence to CW18 for drawing sketch. This witness was cross-examined by the learned counsel for the accused. In his cross-examination, he has denied the suggestion that he has not shown the spot of occurrence to CW18. He has also denied the suggestion that, at the instance of his higher officers, he is deposing falsely.
25. PW15- PSI of Byatarayanapura police station and also one of the Preliminary Investigation Officer has deposed before the court that, on 13.10.2015, when he was incharge of the station, in the morning at 4.30 A.M., CW1 appeared before him with a complaint, he received the complaint which is marked as Ex.P3 and his signature is marked as Ex.P3(a). He prepared FIR as per Ex.P7 and registered a case in Cr.No.528/2015 and sent the FIR to the jurisdictional court and also copy of the same to his higher officers. He has identified his signature on Ex.P7 as Ex.P7(a). On the same day at 5.30 A.M., CW21-Krishnachari produced the accused 15 Spl CC No. 30/2016 before him and he arrested the accused and on the same day, he sent the accused to medical examination along with CW20. On that day, the victim girl had also accompanied CW1. The victim girl was sent to the hospital for medical examination. He has identified the accused in the accused platform located in the court hall. He has handed over the case file to CW27 for further investigation. Thereby this witness has performed his statutory duties as one of the Preliminary Investigation Officer of this case. This witness was cross-examined by the learned counsel for the accused. In his cross-examination, he has denied the suggestion that, he has joined with CW1 and received a false complaint. Further he has denied the suggestion that, inspite of the accused having no connection with this case, he has created false case against the accused.
26. PW16 is the Police Inspector and also one of the Investigation Officer of this case. On 13.10.2015, he has received the case file from CW26 and verified it and continued with the investigation by conducting spot mahazar. He has also conducted seizure mahazar as per Ex.P4. Further he has deposed that, on 14.10.2015, he has recorded the statements of CWs-5 to 9, 11 and 12. On 15.10.2015, he has recorded the statement of CW15. On 30.10.2015, he has obtained the medical report of the victim girl. Thereafter he has handed over the case file to CW28 for further investigation. He has He has identified the accused in the accused platform located in the court hall. He has handed over the case file to CW27 for further investigation. Thereby this witness has performed his statutory duties as the Investigation Officer of 16 Spl CC No. 30/2016 this case. This witness was cross-examined by the learned counsel for the accused. In his cross-examination, he has denied the suggestion that, he has created false case against the accused. He has also denied the suggestion that, he has not done spot mahazar. He has also denied the suggestion, he has heeded to the words of CW1 and created false case against the accused.
27. PW17- Police constable has deposed before the court that, he knows the victim girl. The victim girl was not knowing kannada language but she was knowing only urdu language. He knows both kannada and urdu languages. On 13.10.2015, CW25 had come to his station along with the victim girl and her mother and CW25 asked him to translate the statement given by the victim girl in Urdu language to Kannada language. As such, he has translated the statement of the victim girl into Kannada language and read over it to the victim girl. The said Statement is marked as Ex.P10 and his signature is marked as Ex.P10(a). This witness was cross-examined by the learned counsel for the accused. In his cross-examination he has denied that, he has not translated the statement of the victim girl and the victim girl has not given any statement before him. He has also denied the suggestion that, at the instance of his higher officers, he is deposing falsely.
28. PW18-Woman PSI has deposed before the court that, on 13.10.2015, she has recorded the statement of the victim girl in Byatarayanpura police station as per the orders of ACP. The victim girl was accompanied by her mother. In her statement the victim girl told that her step-father was committing rape on her for the 17 Spl CC No. 30/2016 past 2 years and he had also threatened the victim girl not to disclose the said act to anyone by showing knife. The victim girl further stated that, whenever her mother used to bring ration from Tumkur, at that time, the accused used to commit rape on her. On 20.9.2015, the accused committed rape on her when her mother had gone to Tumkur to bring ration. The said statement of the victim girl is marked as Ex.P10 and the signature of this witness is marked as Ex.P10(b) and the signatures of the victim girl and her mother are marked as Ex.P10(c) and Ex.P10(d) respectively. Thereby this witness has performed her statutory duty by recording the statement of the victim girl. This witness was cross-examined by the learned counsel for the accused. In her cross-examination, she has denied that, the victim girl has not given any statement before her as per Ex.P10. She has also denied the suggestion that, the victim girl is married. She has also denied the suggestion that, the accused has not committed any wrong act.
29. PW20 is the Final Investigation Officer of this case. In his evidence before the court he has deposed that on 9.11.2015, he received the case papers pertaining to this case from CW27 and verified it. On the same day, he continued with the investigation by obtaining the study certificate from the school wherein the victim girl was studying. The said Study Certificate of the victim girl is marked as Ex.P13 and her signature is marked as Ex.P13(a). On 2.12.2015, he received the sketch of the spot of occurrence and the said sketch is marked as Ex.P6. After completion of investigation, as there was materials against the accused, he has submitted charge-sheet against the accused. Thereby, this 18 Spl CC No. 30/2016 witness has performed his statutory duty as final Investigation Officer of this case. This witness was cross-examined by the learned counsel for the accused. In his cross-examination, he has denied that, he has created Exs.P13 and P6 for the purpose of this case. He has also denied the suggestion that, even without any materials against the accused, he has filed false charge-sheet against the accused.
30. PW14 is the Assistant Engineer working in Office No.7, Buildings Sub-division, K.R.Circle, Bangalore. In his evidence before the court he has deposed that, on 20.11.2015, the PSI of Byatarayanapura Police station, sent a Requisition to him to prepare sketch of spot of occurrence, so on 23.11.2015, he went to the spot along with Devaraj-Head Constable and verified the spot and prepared a sketch and on 25.11.2015, he has handed over the sketch to the Investigation Officer. The said Sketch is marked as Ex.P6 and his signature is marked as Ex.P6(a) and the spot of occurrence is marked as 'X' . Thereby this witness has discharged his statutory duties. This witness was cross-examined by the learned counsel for the accused. In his cross-examination, he has denied the suggestion that he has not visited the spot and not prepared any sketch as per Ex.P6. He has also denied the suggestion that, he has prepared Ex.P6 in his office only. He has also denied the suggestion that, he co-operated with the police and prepared a false sketch. He has also denied the suggestion that, he is deposing falsely.
19 Spl CC No. 30/201631. Now having gone through and narrated the evidence supra and having held that the evidence of PWS-1 to 4, 7 and 9 is corroborative and remained uncontraverted. Here I wanted to refer Ex.P2 ie., the statement given by PW1 before the Magistrate. In her evidence PW1 has referred to the Statement made by her to a Magistrate and the contents of which go in consonance with the evidence of that witness and correctness of the contents of Ex.P2 has also not been questioned by the learned defence counsel. Therefore that statement can be made use for corroboration of the testimony of the Victim girl. This court will have to consider whether there was or there is any motive for the complainant and the other witnesses to to falsely implicate the accused in the crime. No doubt PW2 in her cross-examination stated the PW3 the mother of the victim girl has subsequently married another person namely one Sharieff. But the learned defence counsel has not at all suggested to PW3 in she having had married another peson and has not even suggested that she has given a false complaint against the accused for any other reason or with any other motive, except making a bald suggestion of filing a false complaint. This defence of the accused found to be improbable because PW3 having had lost her husband in her early age after giving birth to PW1/ victim girl later married the accused got 4 children through him and having no other source of livelihood would not have falsely implicated the accused that too in a crime of aggravated penetrative sexual assault by her husband on her own daughter born through her first husband which in my view appear as improbable. The defence has not substantiated any motive for concoction of a false case against the accused that too accusing him of this kind of crime.
20 Spl CC No. 30/2016Thus, the evidence of PW3 in my view remained blemishless. Similarly coming to the evidence of Pws-1 to 4, besides the fact that their evidence has withstood the test of cross-examination, I find that no other suggestions are made to them attributing any motive to falsely implicate the accused as the result, the defence has not at all come before this court to prove that the accused has been falsely implicated in the crime. Hence, on going through the prosecution evidence in its totality, I find no hesitation in holding that the prosecution has proved the guilt of the accused and the accused is liable to be convicted for the offence he has been charged for. Accordingly I answer Point Nos. 1 and 2 in the AFFIRMATIVE.
32. POINT NO.3:- In view of my findings on Point Nos. 1 and 2 above, I proceed to pass the following:
ORDER Acting under Sec.235(2) of Cr.P.C, I hereby convict the accused for the offences punishable under Sec.376 of IPC and Sec. 6 of POCSO Act, 2012 and Sec.506(B) of IPC.
[Dictated to the Stenographer directly on the computer, corrections carried out and then then pronounced by me in the open court on this the 25 th day of September, 2019].
[R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.21 Spl CC No. 30/2016
26.9.2019 ORDER ON SENTENCE The accused and his counsel are present. Heard regarding the sentence to be imposed on the accused. The learned counsel for the accused submitted that, the accused is aged 55 years old, having 4 children and having mother to be looked after, and the accused already spent 4 years in Judicial custody as UTP, thereby, he prayed for taking lenient view in imposing the sentence against the accused.
The accused was held guilty for the offences punishable under Sec.376 of IPC and under Sec.6 of POCSO Act, 2012 and Sec.506(B) of IPC. The Amended Section 376(3) of IPC which came to effect from 21.4.2018 through Criminal Law (Amendment) Act, 2018 22 of 2018 provides for imposing minimum sentence of 20 years and also with fine in case where the offence is committed against a woman under the age of 16 years. Whereas under the provision of Sec.6 of POCSO Act, 2012, provides punishment for aggravated penetrative sexual assault with a minimum sentence of 10 years which may extend to life along with fine. The offence under Sec.376(3) of IPC and Sec.6 of POCSO Act, 2012 being the same, the accused cannot be punished for the same offence twice under 2 different Acts.
In the present case, the victim girl was aged 14 years as on the date of the commission of offence. Therefore, as per the 22 Spl CC No. 30/2016 provisions under Sec.376(3) of IPC, r/w Sec.6 of POCSO Act, 2012, with a minimum sentence of 20 years Rigorous Imprisonment for the said offences has to be imposed. That being the position this court is of the view has no choice to show any leniency in awarding sentence, but to award the minimum statutory punishment. As such, I pass the following:
SENTENCE
(a) I hereby sentence the accused to undergo Rigorous Imprisonment for a period of 20 Years and he shall also pay a fine of Rs.5,000/- for the offences punishable under Sec.376(3) of IPC r/w Sec.6 of POCSO Act, 2012.
In default of payment of the fine amount, the accused shall further undergo Simple Imprisonment for a period of 15 days.
(b) Further, I hereby sentence the accused to undergo Simple Imprisonment for a period of 2 years for the offence punishable under Sec.506(B) of IPC.
Both (a) and (b) sentences shall run concurrently.
If the fine amount of Rs.5,000/- is deposited by the accused, the same shall be payable to the Victim girl/PW1 by way of compensation.
Acting under Sec.428 of Cr.P.C, the period of detention undergone by the accused is set-off against the sentence of imprisonment imposed.
23 Spl CC No. 30/2016MO-1 ie., the Knife shall be confiscated to the State after the appeal period is over.
Copy of this Judgement shall be furnished to the accused forthwith free of costs.
[Dictated to the Stenographer directly on the computer, corrections carried out and then then pronounced by me in the open court on this the 26 th day of September, 2019].
[R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
ANNEXURES:
Witnesses examined for the prosecution:
PW.1 Victim girl CW2 19.1.2017
PW.2 Farhana Taj CW11 8.2.2017
PW.3 Ruksana Taj CW1 8.2.2017
PW.4 Sultana Taj CW12 8.2.2017
PW.5 Abbas CW3 1.3.2017
PW.6 Jameel Ahamed CW13 1.3.2017
PW.7 Kabeer Ahmed @ Khadar CW9 1.3.2017
PW.8 Shabeer Ullah Khan CW10 17.3.2017
PW.9 Shabeer Ahamad CW8 17.3.2017
PW.10 Dr.Dilip Kumar. K.B CW16 30.5.2017
PW.11 Suma.N CW19 30.5.2017
PW.12 Malleshi CW20 30.5.2017
PW.13 Devaraju CW24 30.5.2017
PW.14 H.Shivakumar CW18 31.5.2018
PW.15 Lakshmana.C CW26 29.6.2018
24 Spl CC No. 30/2016
PW.16 Lingaraju CW27 29.6.2018
PW.17 Khajasab Tamboli CW23 13.7.2018
PW.18 Roopa Thembad CW25 7.8.2018
PW.19 Dr.Ashok Kumar 17.9.2019
PW.20 R.Hemanth Kumar CW28 17.9.2019
Documents marked for the prosecution:
Ex.P1 Spot Panchanama
Ex.P1(a) Signature of PW1/ victim girl
Ex.P1(b) Signature of PW3
Ex.P1(c) Signature pf PW5
Ex.P1(d) Signature of P16
Ex.P2 Statement of PW1/ victim girl given before the
Magistrate under Sec.164 of Cr.P.C
Ex.P2(a) Signature of Pw1/ victim girl
Ex.P3 Complaint/Statement of PW3 given before the
complainant police under Sec.161 of Cr.P.C Ex.P3(a) Signature of PW3 Ex.P3(b) Signature of PW15 Ex.P4 Seizure Panchanama Ex.P4(a) Signature of PW6 Ex.P4(b) Signature of PW8 Ex.P4(c) Signature of PW16 Ex.P5 Medical Certificate of the accused Ex.P5(a) Signature of PW10 Ex.P6 Sketch Ex.P6(a) Signature of PW14 Ex.P7 FIR Ex.P7(a) Signature of PW15 Ex.P8 Report given by Krishnachari ASI/CW21 to the complainant police regarding out the accused and producing him before the PSI of the complainant police station Ex.P8(a) Signature of PW15 Ex.P9 Voluntary statement of the accused Ex.P9(a) Signature of PW16 Ex.P10 Report given by PW11 regarding collecting of the articles pertaining to the victim girl of this 25 Spl CC No. 30/2016 case to the complainant police Ex.P10(a) Signature of PW16 Ex.P10 Statement of PW1/ victim girl given before the complainant police under Sec.161 of Cr.P.C Ex.P10(a) Signature of PW17 Ex.P10(b) Signature of PW18 Ex.P10(c) Signature of PW1/ victim girl Ex.P10(d) Signature of PW3 Ex.P11 Medical Report of PW1/ victim girl Ex.P12 Attested copies of Consent for examination Ex.P13 Study Certificate of PW1/ victim girl issued by Head Mistress, CMA Girls High School, Bangalore showing the date of birth of PW1/ victim girl as 9.6.2000 Ex.P13(a) Signature of PW20 Material Objects marked for the prosecution:
MO-1 Knife Witness examined for the accused DW1 Inayath 17.1.2019
Documents and MO marked for the accused: NIL [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.26 Spl CC No. 30/2016
25.9.2019 Judgement pronounced in the open court:
[vide separate detailed Judgment] Acting under Sec.235(2) of Cr.P.C, I hereby convict the accused for the offences punishable under Sec.376 of IPC and Sec.6 of POCSO Act, 2012 and Sec.506(B) of IPC.
[R.SHARADA]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.27 Spl CC No. 30/2016
26.9.2019 Sentence pronounced in the open court:
[vide separate detailed Sentence]
(a) I hereby sentence the accused to undergo Rigorous Imprisonment for a period of 20 Years and he shall also pay a fine of Rs.5,000/- for the offences punishable under Sec.376(3) of IPC r/w Sec.6 of POCSO Act, 2012. In default of payment of the fine amount, the accused shall further undergo Simple Imprisonment for a period of 15 days.
(b) Further, I hereby sentence the accused to undergo Simple Imprisonment for a period of 2 years for the offence punishable under Sec.506(B) of IPC.
Both (a) and (b) sentences shall run concurrently.
If the fine amount of Rs.5,000/- is deposited by the accused, the same shall be payable to the Victim girl/PW1 by way of compensation.
28 Spl CC No. 30/2016Acting under Sec.428 of Cr.P.C, the period of detention undergone by the accused is set-off against the sentence of imprisonment imposed.
MO-1 ie., the Knife shall be confiscated to the State after the appeal period is over.
Copy of this Judgement shall be furnished to the accused forthwith free of costs.
[R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
29 Spl CC No. 30/2016