Bangalore District Court
The State Of Karnataka vs Chandan @ Chandu on 29 November, 2018
IN THE COURT OF THE L ADDITIONAL CITY CIVIL
& SESSIONS JUDGE, BANGALORE
Dated this the 29th Day of November 2018
- : PRESENT: -
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
Bangalore
SPECIAL C.C. No.501/2017
COMPLAINANT:
The State of Karnataka
By Konanakunte Police Station,
Bangalore.
[Public Prosecutor-Bangalore]
/ VERSUS /
ACCUSED:
Chandan @ Chandu,
S/o. Rajashekar, 20 years,
R/at. Somanna Building, 3rd Floor,
Opposite to Gangamma Temple,
Anjanapura,
Bengaluru-62.
[Sri.M.E.M-Advocate.]
1 Date of commission of offence 14-01-2017
2 Date of report of occurrence 14-01-2017
3 Date of arrest of Accused 13-02-2017
Date of release of Accused 04-03-2017
Period undergone in custody 19 days
by Accused
2 Spl.C.C.No.501/2017
4 Date of commencement of evidence 01-02-2018
5 Date of closing of evidence 06-09-2018
6 Name of the complainant Victim
7 Offences complained of Section 366, 354 of IPC
8 Opinion of the Judge Accused is acquitted
9 Order of Sentence As per the final order
JUDGMENT
This charge sheet filed by the Police Sub-Inspector, Konanakunte Police Station-Bengaluru, against the accused for the offences punishable under Section 366 and 354 of I.P.C.
2. Since it is a case of kidnap and sexual abuse of minor girl, as such the name of the victim girl is no where shown in the course of judgment as mandated under Section 227(A) of Cr.P.C. However her name is referred to as 'victim girl' wherever her name is necessary.
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
About two months back as on 14-01-2017, the accused met the victim girl-Cw.1 at tuition class through Cw.8- 3 Spl.C.C.No.501/2017 Harshitha. Thereafter, he started to sexually abuse her and was always following her. On 14-01-2017 in the afternoon at about 12.00 hours, when the victim girl and her sister-Cw.2 went out of village house to purchase bangles, near Gottigere bus stop, on Konakunte Main Road the accused induced the victim and forcibly taken her along with Cw.2 to Bannerughatta Hills in car bearing No. KA-05-AE-8891, brought the victim to car parking area of Bannerughatta temple, with an intention to outrage her modesty hugged her and while returning to home when the victim girl was sitting in the front seat of the car, the accused by putting his hand to her waist tried to outrage her modesty and also he has given mobile to the victim girl to contact him over phone. On the basis of complaint lodged by the complainant, the police registered the case in Crime No.61/2017 for the offence punishable under Section 366 and 354 of IPC.
4. The Investigation Officer has investigated the same and filed charge sheet against accused for the offences punishable under Section 366 and 354 of I.P.C. Thereafter, after filing charge sheet as usual the accused appeared before the Court, the committal Court furnished copy of charge sheet to 4 Spl.C.C.No.501/2017 him accused as contemplated under Section 207 of Cr.P.C. Since the victim girl is minor, the committal Court passed an order for committing the case to the Hon'ble Principal City Civil and Sessions Judge, Bengaluru, for further proceedings. In turn the said case was made over to this Court.
5. After receiving the record by this Court, as usual the summons was issued to accused, he appeared before the Court and was enlarged on bail by executing personal bond and producing surety. Thereafter, the learned advocate for the accused submitted no arguments before framing charge. There is prima-facie material appeared against accused for the offences under section 366 and 354 of IPC. Hence, this Court framed charge against accused. The contents of the charge read over and explained to accused in Kannada. He pleaded not guilty and submits crime to be tried. Thereafter the case against accused set down for prosecution evidence.
6. The prosecution in order to establish the guilt of the accused has examined in all 12 witnesses as Pw.1 to Pw.12, got marked 16 documents as Ex.P1 to Ex.P16 and two material 5 Spl.C.C.No.501/2017 objects as MO1 and MO2 and closed its side evidence. In view of available incriminating evidence appeared against the accused, he was examined under Section 313 of Cr.P.C., by recording his statement. He denied the alleged incriminating evidence appeared against him as false. Earlier to that he has complied the provisions of Section 437-A of Cr.P.C, by executing personal bond and producing surety. Thereafter arguments heard from both the sides and the matter is set down for judgment.
7. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that arise for my consideration are as under:-
1. DgÉÆæAiÀÄÄ ¢£ÁAPÀB14-01-2017QÌAvÀ JgÀqÀÄ wAUÀ¼À »AzÉ ¸ÁQë-1
-£ÉÆAzÀ¨Á®QAiÀÄ£ÀÄß DPÉAiÀÄÄ lÆå±À£ï PÁè¸ïUÉ ºÉÆÃUÀĪÁUÀ ¸ÁQë-8gÀªg À À ¸ÀºÁAiÀÄ¢AzÀ ¥ÀjZÀAiÀÄ ªÀiÁrPÉÆAqÀÄ DPÉUÉ ¯ÉÊAVPÀ QgÀÄPÀļÀ ¤ÃqÀ®Ä ¸ÀªÀÄAiÀÄPÁÌV PÁAiÀÄÄvÁÛ, L¸ïQæAUÀ¼£ À ÄÀ ß PÉÆr¸ÀÄvÁÛ, »A¨Á°¸ÀÄvÁÛ ¢£ÁAPÀB14-01-2017 gÀAzÀÄ ªÀÄzsÁåºÀß 12.00 UÀAmɬÄAzÀ ¸ÀAeÉ 05.00 UÀAmÉ £ÀqÀÄªÉ PÉÆÃt£ÀPÄÀ AmÉ ¥ÉÇðøï oÁuÁ ¸Àgº À ¢ À UÝ É ¸ÉÃjzÀ §£ÉßÃgÀÄWÀlÖ ªÀÄÄRågÀ¸A ÉÛÀ iÀÄ UÉÆnÖUÉgÉ §¸ï ¤¯ÁÝtzÀ°è ¤AwzÀÝ ¸ÁQë-1 ªÀÄvÀÄÛ ¸ÁQë-2 gÀªg À ÄÀ -
C¥Áæ¥À¨ Û Á®QAiÀÄgÉAzÀÄ w½¢zÀg Ý ÀÆ ¸ÀºÀ CªÀg£ À ÀÄß ¥ÀŸÀ¯Á¬Ä¹ §®ªÀAvÀªÁV PÀĽîj¹PÉÆAqÀÄ ¸ÁQë-1¼À£ÀÄß ªÀÄzÀÄªÉ ªÀiÁr PÉƼÀÄîvÃÉÛ £ÉAzÀÄ ¥ÀŸÀ¯Á¬Ä¹ §£ÉßÃgÀÄWÀlÖPÉÌ C¥Àºg À t À ªÀiÁr PÉÆAqÀÄ ºÉÆÃV ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 366 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s À£ÀÄß J¸ÀVzÁÝgAÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªgÀ ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
2. DgÉÆæAiÀÄÄ, ªÉÄÃ¯É ºÉýzÀ ¢£ÁAPÀ, ¸ÀªÀÄAiÀÄ, ¸ÀAzÀ¨ð Às zÀ°è ¸ÁQë-1 ªÀÄvÀÄÛ 2 C¥Áæ¥ÀÛ ¨Á®QAiÀÄgÀ£ÀÄß zÀÄgÀÄzÉÃÝ ±À¢AzÀ PÉJ-05- JE-8891 PÁj£À°è §£ÉßÃgÀÄWÀlÖPÉÌ PÀgzÉ ÀÄPÀÉÆAqÀÄ ºÉÆÃV ¨ÉlÖzÀ ªÉÄÃ¯É vÉÆÃj¸ÀĪÀÅzÁV ºÉý PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃV PÁj£À Qà 6 Spl.C.C.No.501/2017 PÀ¼z É ÀĺÉÆÃVzÉ JA§ £É¥z À ° À è ªÀÄvÉÛ ªÁ¥À¸ï PÀgz É ÀÄPÉÆAqÀÄ §gÀĪÁUÀ ¸ÁQë-1¼À PÉÊ»rzÀÄPÉÆArzÀÄÝ £ÀAvÀgÀ PÁgï ¥ÁQðAUï §½ ¸ÁQë-1¼À£ÀÄß vÀ©P â ÉÆAqÀÄ ªÀiÁ£À¨A Às UÀ ªÀiÁqÀ®Ä ¥ÀæAiÀÄwß¹ ¥ÀÅ£ÀB PÁj£À°è ªÁ¥À¸ï §gÀĪÁUÀ ªÀÄÄA¨sÁUÀzÀ ¹Ãn£À°è PÀĽwzÀÝ ¸ÁQë-1 gÀªg À À ¸ÉÆAlPÉÌ PÉÊ ºÁQ ªÀiÁ£À¨ÀA s UÀ ªÀiÁqÀ®Ä ¥ÀæAiÀÄwß¹ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 354gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgÀÉAzÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPëÀ zÀªg À ÄÀ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
3. AiÀiÁªÀ DzÉñÀ?
8. My findings on the above points are as under:-
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: As per final orders for the following:
REASONS
9. Point No.1 and 2:- As these points are inter-related, hence I have taken up together for my consideration in order to avoid repetition of reasons.
10. Perused the entire record, charge sheet, evidence produced both at oral and documentary and the arguments canvassed by the learned advocate for accused and the learned Public Prosecutor.
11. In order to prove the alleged offences against the accused the prosecution examined in all 12 witnesses as Pw.1 to 7 Spl.C.C.No.501/2017 Pw.12, got marked 16 documents as Ex.P1 to Ex.P16 and two material objects as MO1 and MO2 and this Court perused the same. As per the prosecution case, Pw.1 is the victim girl, Pw.2 Pw.7 and Pw.8 are eye witnesses, Pw.3, Pw.5 are the circumstantial witnesses, Pw.4 is the mother of victim girl, Pw.6 and Pw.12 are the Panch witnesses, Pw.9 is the Head Master. Pw.10 and Pw.11 are the police personnel and Investigation Officer. Out of the above said witnesses, Pw.7 and Pw.8 turned hostile to the case of prosecution. Hence, this Court shall proceed to see whether the available evidence of said witnesses is sufficient to establish the alleged offences against accused.
12. In order to establish the alleged offences against accused the prosecution is required to prove that about two months back as on 14-01-2017, the accused met the victim girl- Cw.1 at tuition class through Cw.8-Harshitha, thereafter, he started to sexually abuse her and was always following her, on 14-01-2017 in the afternoon at about 12.00 hours, when the victim girl and her sister-Cw.2 went out of village house to purchase bangles, near Gottigere bus stop, on Konakunte Main Road the accused induced the victim and forcibly taken her 8 Spl.C.C.No.501/2017 along with Cw.2 to Bannerughatta Hills in car bearing No. KA- 05-AE-8891, brought the victim to car parking area of Bannerughatta temple, with an intention to outrage her modesty hugged her and while returning to home when the victim girl was sitting in the front seat of the car, the accused by putting his hand to her waist tried to outrage her modesty and also he has given mobile to the victim girl to contact him over phone and thereby committed offences punishable under section 366 and 354 of I.P.C. Hence, this Court shall proceed to see whether the prosecution has succeeded in establishing all the aforesaid ingredients of the alleged offence against the accused beyond all reasonable doubt.
13. Before venturing into scan the available materials produced by the prosecution and the defense taken by the accused, it is necessary to mention the very definition of offences under Section 366 and 354 IPC.
Section 366 of IPC defines that:
Kidnapping, abducting or inducing woman to compel her marriage, etc-Whoever, kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit 9 Spl.C.C.No.501/2017 intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority to any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall also be punishable as foresaid.
Section 354 of I.P.C defines that:
Assault or use of Criminal force to woman with intent to disrobe her modesty -Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty shall be punished with imprisonment of either description for a term which may extend two years or with fine or with both.
14. By going through the facts, circumstances and materials available on record, it is just and proper to mention the common contentions of the prosecution with regard to the relationship of the victim girl and other witnesses. As per the evidence of Pw.1 to Pw.6, there is children institution viz., S.O.S. Village, in that institution orphan and other poor girls were maintained by providing food, clothing, shelter and also education to them. Here, the victim girl is genetic daughter of Pw.4-Mangala Gowri, but she has admitted her to S.O.S. Institute and in that institute there are 16 houses, wherein 8 to 10 Spl.C.C.No.501/2017 10 children are residing in each of the houses having House Mother. Here, Pw.3-Anuradha is the House Mother of the victim girl and Pw.2-Shashikala in the said village, as such the children of the house represented as sisters and daughters of house mother. Here, Pw.1 and Pw.2 are not genetic sisters. In view of they are members of said house, they are called as sisters and accordingly the evidence is also given to that effect. Pw.5 is the Assistant Village Director of SOS Institute.
15. Further it is the stand of Pw.1 to Pw.6 that on 14-01- 2017 the incident was taken place, earlier to that Pw.3-the mother of 8 children taken them to Meenakshi Temple at Banashankari, after returning to S.O.S. Institute, the victim girl and Pw.2-Shashikala with permission came out from Institute to purchase bangles in bangles shop. With these common observations, now left with the available evidence produced by the prosecution to consider whether the prosecution proved the alleged offences against accused beyond all reasonable doubt or it probablises the defense of the accused.
16. Here the prosecution's case is that the alleged 11 Spl.C.C.No.501/2017 incident was taken place from 12.00 hours in the noon to 05.00 p.m., on 14-01-2017, whereas the complaint lodged by the victim girl is on 11-02-2017, that too after lapse of 27 days of the alleged incident. As such it is necessary to consider whether proper reasons given by the prosecution for delay caused in lodging complaint has to be looked into. On perusal of Ex.P1- complaint, there is no mentioning as to when the authorities came to know about the alleged incident, as such there was delay in lodging complaint. Non-mentioning of specific date, it is absolutely fatal to the case of the prosecution herein. With these observations, on perusal of evidence of Pw.1-the victim girl, who was student of 10th standard at the time of alleged incident, it is her evidence in her chief examination that after returning from Bannerughatta temple to the SOS Institute, the accused had given a mobile phone to her with force even though she refused to receive the same, after that she was talking with him for two days and return the said mobile phone to him. Therafter, again he sent mobile phone to her through his friend and when she kept the same for charging, at that time the mother came to know about she having of mobile phone, 12 Spl.C.C.No.501/2017 enquired her about the same and produced before the authority of SOS Institute. The authority wanted her to return the same to her friend, but she has not return the same, as such the authority directed her to lodge complaint and she has lodged complaint as per Ex.P1 and her signature is Ex.P1(a). Even in the chief examination itself, the prosecution has not produced the evidence for delay in lodging of complaint by this witness.
17. By going through the evidence of Pw.2-Shashikala, she has also not whispered about the reasons for delay of 27 days in lodging complaint. On perusal of evidence of Pw.3- Anuradha-the mother of the complainant of SOS Children Institute and the victim girl is under her care and custody, she has also not whispered any reasons about causing delay of 27 days in lodging complaint and its reasons. On perusal of evidence of Pw.4-Mangala Gowri-the genetic mother of the victim girl, she has deposed that she came to know about the alleged incident on 12-02-2017, not earlier to that. Through this witness also no such reasons produced by the prosecution for the delay in lodging complaint. On perusal of evidence of Pw.5- Vishwanatha Reddy-Assistant Village Director, he came to know 13 Spl.C.C.No.501/2017 about the alleged incident on 11-02-2017 when he found mobile phone in the hand of the victim girl, after enquiry with her he came to know about the incident, as such the complaint was lodged by him through the victim girl, admittedly this witness not lodged complaint personnel. If really the alleged incident was taken place, definitely the victim girl stated the same before this witness and Pw.3, on the very same day itself and the complaint came to be lodged through the victim girl, but no such act taken place on the fatal day of the incident. The victim girl lodged complaint after lapse of 27 days of the alleged incident, as such it is not safe to accept about the commission of offence by the accused and also the prosecution fails to establish the alleged offences against accused beyond all reasonable doubt.
18. Now left with the available evidence to consider whether the prosecution proves as on the date of alleged incident, whether the victim girl was minor or not. On perusal of evidence of Pw.1, she has deposed that she was born on 30- 01-2001, on the date of alleged incident she was studying S.S.L.C., as on the date of giving evidence, she was studying in 14 Spl.C.C.No.501/2017 1st PUC. On perusal of cross-examination of Pw.1, no such defense taken by the accused about the age of the victim as per the case of the prosecution, even he has not denied about the age of the victim by denial suggestion. On perusal of evidence of Pw.2-Shashikala, who was studying in 6th standard as on the date of the alleged incident and student of 7th standard as on the date of giving evidence, she has also deposed that she was born on 22-12-2004. Both Pw.1 and Pw.2 are studying in the same school. In the cross-examination, no such admission made by the accused about the age this witness.
19. By going through the evidence of Pw.3-Anuradha-the mother of SOS Children Village, she has deposed in the year 2017, Pw.1 was studying in 10th standard. In the cross- examination this witness was not denied by the accused. On perusal of evidence of Pw.4-Mangala Gowri-the mother of the victim girl, she has deposed that since she was suffering from ill-health, she has left the victim to SOS Institute, except that no such evidence produced by the prosecution with regard to the age of the victim. On perusal of evidence of Pw.5-Vishwanath 15 Spl.C.C.No.501/2017 Reddy, no such evidence placed on record by the prosecution with regard to the age of the Pw.1 and Pw.2.
20. By going through the evidence of Pw.9-D.V.Aravind- Principal of Sri. Sarathi English School, he has deposed that he has received requisition from Konakunte Police and as per the said requisition, he has issued Ex.P7 showing that the victim girl-Pw.1 was born on 31-01-2001 and Pw.2 was born on 03-03- 2004 and as on the year 2017, Pw.1 was studying in 10th standard and Pw.2 was studying in 6th standard. If the above said evidence is taken into consideration, as on the date of alleged incident, the victim girl was aged about 16 years and Pw.2 was aged about 13 years.
21. The accused cross-examined this witness by eliciting some commission and omission, except denial suggestion, nothing has been elicited favourable to the defense taken by him. If the above said evidence of prosecution witnesses is taken into consideration and also Ex.P8 and Ex.P9 also crystallizes that as on the date of alleged incident, the victim girl was aged about 16 years and Pw.2 was aged about 13 years and 16 Spl.C.C.No.501/2017 both were minors. With these evidence, now left with the available material evidence to consider whether the prosecution establishes whether the accused kidnapped by inducing the victim girl and compelled her to marry him, knowing fully well that she was minor at that time or he has kidnapped the victim girl in order that she may be forced or seduced to illicit intercourse with the victim girl and also made criminal force on her with an intention outrage her modesty in the public beyond all reasonable doubt.
22. By going through the evidence of Pw.1-the victim girl she has deposed that she know the accused, she came in contact with him through her friend-Harshita. During the year 2015-16 she was studying in S.S.L.C. The accused used to talk with her when she was going to school and to tuition. She has deposed that on 14-01-2017 he had taken herself along with Pw.2-Shashikala and his friend in a car to Bannerughatta Temple, after worship the God they went to hill at Bannerughatta, on the way the accused lost his car key, as such they got down from the hill, the accused called his friend over 17 Spl.C.C.No.501/2017 phone and get another key, at that time they were waiting near car parking place.
23. She has further deposed that the accused purchased ice-cream and given to her, he has put his hand on her shoulder, but she pushed his hand and thereafter the friend of accused brought the car key and while all of them were returning to their destination in the car, she was sitting in the front seat along with Pw.2-Shasikala, at that time the accused attempted to touch her thigh, but she pushed his hand. She has further deposed that after returning from Bannerughatta temple the accused had given mobile phone to her, she has used the same for one or two days and return the same. He has also sent mobile to her through his friend, she received the same, when she kept the same for charge, the mother of SOS Institution came to know about she having said mobile, enquired with her and she revealed about the incident. Further she has deposed that:
" EzÁzÀ £ÀAvÀgÀ DgÉÆæ ªÀÄvÀÄÛ £Á£ÀÄ AiÀiÁªÀÅzÉà jÃwAiÀÄ°è ¨sÃÉ nAiÀiÁVgÀĪÀÅ¢®è. CA¢¤AzÀ £Á£ÀÄ DvÀ££ À ÀÄß £ÉÆÃrgÀĪÀÅ¢®è, DvÀ£ÀÆ ¸ÀºÀ £À£ÀߣÀÄß £ÉÆÃrgÀĪÀÅ¢®è. DgÉÆæ¬ÄAzÀ £À£ÀUÁåªÀÅzÉà vÉÆAzÀgÉ DVgÀĪÀÅ¢®è."18 Spl.C.C.No.501/2017
Further it is her evidence that she has given complaint as per Ex.P1 and her signature is Ex.P1(a). She has shown the spot, where the accused taken herself and Pw.2 in a car i.e., Gottigere bus stop, the police conducted mahazar as per Ex.P2 and her signature is Ex.P2(a). She has also identified mobile- MO1 before the Court.
24. Further she has deposed that she has given statement before Magistrate as per Ex.P3 and her signature is Ex.P3(a). Here the evidence of this witness is very clear that she has not deposed in her chief examination itself that the accused kidnapped her with an intention to marry her and also he has tried to outrage her modesty in public. At this stage the evidence of this witness discloses that the accused has not done anything on her except that he has put his hand on her shoulder and thigh, at that time she has pushed his hand.
25. With these observations on perusal of contents of Ex.P1, it discloses about enticement of victim and her friend by the accused to go to Bannerughatta temple, but she has not stated anything in her chief examination. Further it is 19 Spl.C.C.No.501/2017 mentioned that the accused having malafide intention hugged her near car parking, but in the chief examination, she has not stated anything about the same. At this stage, this Court feels to observe that through the evidence of Pw.1, in her chief examination, the prosecution fails to establish the malafide intention of the accused to do alleged act against the victim girl.
26. The accused tested the veracity of evidence of this witness by eliciting some commission and omission and also elicited that:
"£ÀªÀÄä ¸ÀA¸ÉA Ü iÀÄ°è £ÁªÀÅ ºÉÆgÀUÉ ºÉÆÃzÀ ¸ÀªÀÄAiÀÄ ªÀÄvÀÄÛ D ¸ÀA¸ÉA Ü iÀÄ M¼ÀUÉ §AzÀ ¸ÀªÀÄAiÀĪÀ£ÀÄß MAzÀÄ jf¸ÀÖgï£À°è §gÉ¢qÀÄvÁÛg.É £ÀªÀÄä ¸ÀA¸ÉA Ü iÀÄ°è £ÁªÀÅ AiÀiÁªÀÅzÉà ªÀÄPÀ̼À ¥ÉÊQ ºÉÆgÀUÉ ºÉÆÃUÀĪÀ ¸ÀAzÀ¨ð Às §AzÀgÉ M¨ÉÆâ§g â £ À Éßà PÀ¼ÀÄ»¸ÀĪÀÅ¢®è. £ÀªÄÀ ä ¸ÀA¸É¬Ü ÄAzÀ PÁ¯ÉÃeïUÉ CxÀªÁ lÆå±À£ïUÀ½UÉ ªÀÄPÀ̼ÀÄ ºÉÆÃUÀĪÀªj À zÀg Ý É CªÀjUÉ EAvÀºz À ÃÉ ¤¢ðµÀ× ¸ÀªÀÄAiÀÄzÀ°è PÁ¯ÉÃeïUÉ lÆå±À£ïUÉ ºÉÆÃUÀ¨ÃÉ PÀÄ ºÁUÀÆ ªÀÄÄVzÀ PÀÆqÀ¯ÃÉ EAwµÉÖà CªÀ¢A ü iÀÄ°è ¸ÀA¸ÉA Ü iÀÄ M¼ÀUÉ §gÀ¨ÃÉ PÉAzÀÄ ¤UÀ¢¥Àr¸ÀÄvÁÛgA É zÀgÉ ¸Àj.'' Here, no such register produced by the prosecution to believe that the victim girl and her friend went outside the village house as its case. Further she was elicited that when she was going to tuition, Harshita got introduced the accused to her, but she cannot remember when she introduced the accused to her.
If this piece of evidence is taken into consideration, as per the chief examination she came to know the accused about two 20 Spl.C.C.No.501/2017 months back as on the date of alleged incident cannot be believable one. Further it is her evidence that:
"£Á£ÀÄ ªÀÄvÀÄÛ D ªÀÄÆgÀÄ d£ÀgÀÄ MnÖUÉ eÉÆvÉAiÀÄ°è ¸ÀÆ̯ïUÉ ªÀÄvÀÄÛ lÆå±À£ïUÉ ºÉÆÃV§AzÀÄ ªÀiÁqÀÄwÛzª ÉÝ ÀÅ, £Á£ÀÄ £Á®ÄÌ d£ÀgÀÄ £ÀªÀÄä «¯ÉÃeï ªÁå£ï£À°è ºÉÆÃV «¯ÉÃeïªÁå£ï£À¯ÉÃè ªÁ¥À¸ï §gÀÄwÛzªÉÝ ÀÅ. £Á£ÀÄ ºÉÆUÀÄwÛzÀÝ «¯ÉÃeï ªÁå£ï£À°è 20 d£ÀgÄÀ EgÀÄwÛzÀÄÝ lÆå±À£ïUÉ ºÉÆÃUÀĪÀ ¸ÀªÀÄAiÀÄzÀ°è 3 d£À ªÀÄPÀ̼ÀÄ EgÀÄwÛzg ÝÀ ÄÀ . D «¯ÉÃeï ªÁå£ï£À°è ZÁ®PÀ ªÀÄvÀÄÛ ªÀÄPÀ̼À£ÀÄß £ÉÆÃrPÀÆ É ¼ÀîªÀ ªÉÄðéZÀÁgÀPg À ÀÄ EzÀg Ý ÀÄ JAzÀgÉ ¸Àj."
Here it is relevant to note if this piece of admission is taken into consideration, the prosecution fails to produce the evidence of Varalakshmi, Mangala Gowri and Swathi, to believe that Harshita introduced the accused to the victim girl. Further the driver of the SOS Village is also not examined to believe that the accused always used to follow the victim girl while she was going to the school and to the tuition. Even when she went to the school and tuition by walk along with her friends-Varalakshmi, Mangala Gowri and Swathi, if the accused followed her, in order to prove the same, the above said three friends of victim girl, who are material witnesses, the prosecution not produced their evidence, even the Investigation Officer not enquired the said friends of victim girl.
21 Spl.C.C.No.501/2017
27. Further it is her admission that:
"lÆåmÉÆÃjAiÀįïì §½ £ÁªÀÅ lÆåmÉÆÃjAiÀįïìUÉ ºÉÆÃUÀĪÀ «zÁåyðUÀ¼£À ÀÄß ºÉÆgÀvÀÄ¥Àr¹ EvÀgÉ C¥ÀjavÀ ªÀåQÛU¼ À ÀÄ AiÀiÁgÁzÀgÀÄ C°è §gÀĪÀ ºÁVgÀ°®è JAzÀgÀÉ ¸Àj."
If this piece of evidence is taken into consideration, it is highly not believable one that the accused came near tuition, forced her to love him. Further it is her evidence that:
"D PÁj£À°è DgÉÆæAiÀÄ®èzÉ DvÀ£À ªÀÄÆgÀÄ d£À ¸ÉßûvÀgÀÄ EzÀg ÝÀ ÀÄ. CªÀgÀÄUÀ¼£ À ÀÄß D ªÉÆzÀ®Ä £Á£ÀÄ £ÉÆÃrgÀ°®è ºÁUÀÆ CªÀgÄÀ AiÀiÁgÉAzÀÄ ºÉüÀ®Ä £À£U À É UÉÆwÛ®.è D PÁj£À°è MlÄÖ LzÀÄ d£À PÀĽvÀÄ ºÉÆUÀ§ºÀÄzÁVvÀÄ.Û £Á£ÀÄ D PÁj£À ªÀÄÄA¨sÁUÀzÀ ZÁ®PÀ£À ¥ÀPÀÌzÀ ¹Ãn£À°è PÀĽwzÉÝ £À£Àß vÀAV ±À²PÀ¯Á £À£Àß ªÉÄÃ¯É PÀĽwzÀ¼ Ý ÀÄ."
Again she has deposed that:
"DgÉÆæAiÀÄÄ £À£Àß vÉÆqÉAiÀÄ£ÀÄß ªÀÄÄlÖ®Ä §A¢gÀ°®è JAzÀgÉ ¸ÁQë ªÀÄÄlÖ®Ä §gÀÄwÛzÀÝ £Á£ÀÄ PÉÊAiÀÄ£ÀÄß CqÀØ »rzÀÄ CzÀ£ÄÀ ß vÀqz É É JAzÀÄ £ÀÄr¢gÀÄvÁÛg.É "
If the above said evidence is taken into consideration, the Investigation Officer has not enquired the other three students who used accompany with the victim girl to the tuition and also alleged eye-witnesses to the incident. Non-production of their evidence, it is absolutely fatal to the case of prosecution to prove the alleged offences against accused.
28. Further she has deposed that she has not stated anything about the incident on the alleged date before the village 22 Spl.C.C.No.501/2017 mother. The accused had given mobile phone forcibly to her, if this piece of evidence is taken into consideration, whatever defense taken by the accused, about giving mobile phone forcibly to the victim, cannot be accepted as true. Through the evidence of Pw.1-the prosecution fails to prove the accused with an intention to marry the victim girl, kidnapped her and also tried to outrage her modesty in the public, beyond all reasonable doubt.
29. By going through the evidence of Pw.2, she has deposed she accompanied with the victim girl to Bannerughatta Temple along with the accused. As per the prosecution she has deposed last year on Shankranthi festival day, the mother of Village taken herself along with the victim girl to Meenakshi Temple, after returning from Meenakshi Temple when they were returning to Village, the victim girl told to mother that she wants to purchase ear-ring and also taken her to road side and the village mother went to the village house. Here it is relevant to note according to the victim, she went to purchase bangles, hence there is contradiction between their evidence. Further she has deposed the victim girl had taken her to left side of the 23 Spl.C.C.No.501/2017 road, when they were walking on the road, she told to the victim that they are getting late and she wants to go to village and they boarded the bus and on the way they got down from the bus. Here it is relevant to note as per the case of prosecution the victim girl taken this witness to purchase bangles.
30. Further evidence of this witness is that:
"£ÀAvÀgÀ £À£ÀߣÀÄß ¥Áæ.¸Á.1 CPÀÌ DgÉÆæAiÀÄ PÁjUÉ ºÀw¹ Û PÉÆAqÀ¼ÀÄ. £ÀAvÀgÀ CPÀÌ £À£ÀߣÀÄß zÉêÀ¸ÁÜ£P À ÉÌ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃzÀ¼ÀÄ."
If this piece of evidence is taken into consideration, it is not the accused forcibly taken them to Bannerughatta Temple, on the other as per the evidence of this witness, the victim girl herself along with this witness boarded the car of the accused and taken her to the temple. Further it is her evidence that:
"zÉêÀgÀ zÀ±ð À £À ªÀiÁr zÉêÀ¸ÁÜ£z À °À è ¥ÀÇeÉ ªÀiÁr¹zɪÅÀ . £ÀAvÀgÀ zɪÃÀ ¸ÁÜ£¢ À AzÀ ¨ÉlÖzÀ ªÉÄÃ¯É ºÉÆÃUÀÄwÛzÁÝUÀ PÁj£À Qà PÀ¼z É ÀÄ PÉƬÄvÀÄ. DgÉÆæAiÀÄÄ vÀ£Àß ¸ÉßûvÀ¤UÉ ¥sÉÆÃ£ï ªÀiÁr PÁgÀÄ Qà vÀj¹zÀ£Ý ÀÄ. PÁgÀÄ Qà vÀAzÀÄPÉÆqÀĪÀªg À « É UÀÄÁ £Á£ÀÄ ªÀÄvÀÄÛ ¥Áæ.¸Á.1 CPÀÌ MAzÀÄ ¥ÀPÀÌPÁÌzÀAvÉ PÀĽwzÉªÝ ÀÅ. ¸ÀĪÀÀiÁgÀÄ CzÀð s UÀAmÉ M¼ÀUÉ DgÉÆæAiÀÄ ¸ÉßûvÀ PÁgÀÄ QÃAiÀÄ£ÀÄß vÀAzÀÄ PÉÆlÖ£ÀÄ. PÁj£À°è ¥Áæ.¸Á.1 CPÀÌ DgÉÆæAiÀÄ ¨ÀsÄdzÀ ªÉÄÃ¯É PÉʺÁQ ¨ÀsÄdªÀ£ÀÄß MgÀVPÉÆAqÀÄ ªÀÄ®VzÀ¼ Ý ÀÄ. DgÉÆæAiÀÄÄ ¥Áæ.¸Á.1 CPÀÌ£À vÉÆqÉAiÀÄ ªÉÄÃ¯É PÉʺÁQzÀ£ÄÀ , DUÀ ¥Áæ.¸Á.1 CPÀÌ DvÀ£À PÉʪÉÄÃ¯É ºÉÆqÉzÀÄ DvÀ£À PÉÊAiÀÄ£ÀÄß vÉUz É ¼ À ÀÄ. £ÀAvÀgÀ «¯ÉÃeïUÉ §AzÀÄ £ÀªÀÄä£ÀÄß PÁj¤AzÀ CªÀgÀÄ E½¹ ºÉÆgÀlĺÉÆÃzÀgÀÄ."
If this piece of evidence is taken into consideration, the prosecution fails to establish the alleged intention of the accused. When he has not kidnapped the victim girl, when he 24 Spl.C.C.No.501/2017 has no intention to outrage her modest, the prosecution fails to establish the alleged offences against accused.
31. The learned Public Prosecutor treated this witness as hostile to prosecution and suggested each and every word of Ex.P4, for that she has denied the same. Through the eye- witness, the prosecution fails to establish the alleged offences against accused beyond all reasonable doubt.
Further it is her evidence that:
" ¥Áæ.¸Á.1 CPÀÌ £À£U À É C¯ÉÆA è zÀÄ PÁjzÉ JAzÀÄ ºÉý ªÀÄzÀsåzÀ°è §¸ï¤AzÀ E½¹PÉÆAqÀ¼ÀÄ. D PÁgÀÄ C°èzÀÝ «µÀAiÀÄ ¥Áæ.¸Á.1 gÀªj À UÉ UÉÆwÛvÀÄ.Û CPÀÌ£Éà £À£ÀߣÀÄß D PÁjUÉ ºÀw¹ Û PÉÆAqÀ¼ÀÄ, CPÀÌ£À£ÄÀ ß DgÉÆæAiÀÄÄ PÁjUÉ ºÀw¹ Û PÉÆAqÀ¼ÀÄ. D PÁgÀ£ÀÄß ¥Áæ.¸Á.1 gÀªg À ÃÉ ºÀwP Û Æ É AqÀgÄÀ . Qà PÀ¼zÉ ÀÄ ºÉÆÃzÀ £ÀAvÀgÀ ¨ÉlÖ¢AzÀ E½zÀÄ ¥ÁQðAUï ¥Éèøï£À°è £Á£ÀÄ CPÀÌ MAzÀÄ PÀqU É ÁzÀAvÉ PÀĽvÀÄPÉÆAqɪÀÅ, DgÉÆæ ªÀÄvÀÄÛ DvÀ£À ¸ÉßûvÀgÀÄ ªÀÄvÉÆA Û zÀÄ ¥ÀPÀÌzÀ°è PÀĽvÀÄPÉÆAqÀgÀÄ. DgÉÆæ £À£U À ÃÉ £ÀÄ ªÀiÁrgÀĪÀÅ¢®è. ¥Áæ.¸Á.1 CPÀ̤UÉ DgÉÆæ ªÀÄwÛ£ÉßãÀ£ÀÄß ªÀiÁrgÀĪÀÅ¢®è, D §UÉÎ £Á£ÀÄ ¥ÉÅÁðøÀgÀ ªÀÄÄAzÉ ºÉýPÉ PÉÆnÖgÀĪÀÅ¢®è. "
If the above said evidence is taken into consideration, the prosecution fails to establish the alleged offences against accused beyond all reasonable doubt. The accused tested the veracity of evidence of this witness and also elicited that:
"£À£Àß CPÀÌ ¥Áæ.¸Á.1 £À£ÀߣÀÄß DgÉÆæ §½UÉ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃzÀ¼ÀÄ. DgÉÆæAiÀÄ §½ ¥Áæ¸Á1 £À£ÀߣÀÄß PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃUÀĪÁUÀ DPÉ £À£U À É K£À£ÀÆß ºÉüÀ°®è. £ÁªÀÅ DgÉÆæ §½ ºÉÄÃzÁUÀ D ¸ÀªÀÄAiÀÄzÀ°è DvÀ£À eÉÆvÉ E§âgÀÄ CxÀªÁ ªÀÄÆgÀÄ d£À EzÀg Ý ÄÀ . PÁj£À°è £Á£ÀÄ ¥Áæ.¸Á.1 gÀªg À À vÉÆqÉ ªÉÄÃ¯É PÀĽwzÉ.Ý £Á£ÀÄ ¥Áæ.¸Á.1 gÀªg À À §½ DgÉÆæ £À£U À É UÉÆwÛ®è DvÀ£À eÉÆvÉ §gÀĪÀÅ¢®èªA É zÀÄ ºÉý ¥Áæ.¸Á.1 CPÀ̤UÉ ºÉüÀ°®è. zÉêÀ¸ÁÜ£P À ÉÌ ºÉÆÃV ªÁ¥À¸ï ªÀÄ£ÉUÉ §AzÀ ¸ÀªÄÀ AiÀÄzÀ°è 25 Spl.C.C.No.501/2017 ¥Àæ.¸Á.1 CPÀÌ £À£ÀߣÀÄß DgÉÆæAiÀÄ §½ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃV C°èAzÀ DgÉÆæ £ÀªÀÄä£ÀÄß §£ÉßÃgÀÄWÀlÖ zÉêÀ¸ÁÜ£P À ÉÌ PÀgzÉ ÀÄPÉÆAqÀÄ ºÉÆÃzÀ£A É § «µÀAiÀĪÀ£ÀÄß CªÀÄä¤UÉ D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ºÉüÀ°®è."
32. Further she has admitted that:
"§£ÉßÃgÀÄWÀlÖ zÉêÀ¸ÁÜ£ÀzÀ §½ DgÉÆæAiÀÄÄ £Á£ÀÄ ªÀÄÄRå«ZÁgÀuA É iÀÄ°è ºÉýgÀĪÀ jÃwAiÀÄ°è £À£Àß CPÀ̤UÉ vÉÆAzÀgÉ PÉÆlÖ£ÉA§ «µÀAiÀÄ C°èzÀÝ ¸ÁªÀðd¤PÀgÀ §½ £Á£ÀÄ ºÉý®è. CzÉà jÃw CªÀÄä£À §½AiÀÄÆ£ £ÁªÀÅ ªÀÄ£ÉUÉ ªÁ¥À¸ï §AzÀ ¸ÀªÄÀ AiÀÄzÀ°è £Á£ÀÄ ºÉüÀ°®è."
Again she has admitted that:
"£Á£ÀÄ £À£Àß ªÀÄÄRå«ZÁgÀuA É iÀÄ°è ºÉýgÀĪÀ jÃwAiÀÄ°è ºÉüÀ¨ÃÉ PÉAzÀÄ ºÉý £ÀªÀÄä¸A À ¸ÉA Ü iÀĪÀgÀÄ £À£ÀߣÀÄß ¥ÉÇðøï oÁuÉUÉ PÀgz É ÀÄPÀÉÆAqÀÄ ºÉÆÃVzÀg Ý ÀÄ JAzÀgÉ ¸Àj."
If the above said evidence is taken into consideration, the victim girl voluntarily accompanied with the accused and not accused kidnapped her. Further this witness deposed only on the say of Institution, not voluntarily. She has further deposed that:
"£ÁªÀÅ §£ÉßÃgÀÄWÀl zÉêÀ¸ÁÜ£¢ À AzÀ ªÁ¥À¸ï§gÀĪÁUÀ®Ä £Á£ÀÄ ¥Áæ.¸Á.1 CPÀÌ£À vÉÆqÉAiÀÄ ªÉÄÃ¯É PÀĽwzÉ.Ý "
If this situation is taken into consideration, question of accused outraging the modesty of the victim girl doesn't arises. Through the evidence of Pw.2 also, the prosecution fails to establish the alleged offences against accused beyond all reasonable doubt.
26 Spl.C.C.No.501/2017
33. Now, left with the available material evidence of Pw.7- Harshita, the friend of the victim girl. She has deposed that the victim girl is her friend when she was studying S.S.L.C. at Sarathy School, both were going to tuition at tutorials in the evening, situated at Harihara Nagar, but no such incident taken place earlier. She has not given any statement before police, at no point of time the accused had taken the victim girl to any where in his car and to Bannerughatta. She doesn't know Pw.2, she doesn't know anything about the incident. The material witness who introduced the accused to the victim girl as per the case of the prosecution turned hostile to prosecution case. The prosecution suggested each and every word of Ex.P5, for that she has denied the same.
34. By going through the evidence of Pw.8-R.Manjunath, as per the case of prosecution, he accompanied with the accused on the date of the alleged incident, but his evidence is that the accused is his close friend, but he doesn't anything about the alleged incident, he doesn't know what case is registered against accused. He has not given any statement before the Court stating that the accused has taken the victim girl in his car to 27 Spl.C.C.No.501/2017 Bannerughatta temple and misbehaved with her. The prosecution treated this witness as hostile to prosecution case and suggested each and every word of Ex.P6, for that he has denied the same, through the evidence of Pw.7 and Pw.8, the prosecution fails to establish the alleged offences against accused beyond all reasonable doubt.
35. Now, left with the circumstantial witness evidence. The prosecution produces the evidence of Pw.3-Anuradha, who is also hear say witness and mother in SOS Children's Village. In her chief examination, she has deposed that after returning from Meenakshi Temple on 14-01-2017, the victim girl told her that she wants to purchase ear-ring and also she wants to take Pw.2 along with her, for that she has permitted them and also warned them to come as early as possible, by that time the timings was 11.30 a.m., or 12.00 noon. Further it is her evidence that the victim girl and Pw.2 return within one or two hours to the house and when she enquired about the ear-ring, the victim girl told she has handed over the same to her friend. If this piece of evidence is taken into consideration, it is not safe to accept the evidence of Pw.1 and Pw.2 and the prosecution 28 Spl.C.C.No.501/2017 that the alleged incident taken place from 12.00 noon to 05.00 p.m.
36. Further she has deposed that on that day the Director-Madhusudan called upon Pw.1 and Pw.2 and other children and enquired them as to where Pw.1 and Pw.2 had gone, Pw.1 and Pw.2 answered about where they have gone, as such he has lodged complaint through Pw.1. If this piece of evidence is taken into consideration, as per the evidence of this witness on the same day the complaint was lodged, but Ex.P1 was lodged on 11-02-2017 at 15.00 hours. She has also deposed that she has not seen the accused any where. She has identified MO1-mobile which was with the victim at the time of enquiry by Cw.5-Madhusudan, she doesn't know about having of mobile by the victim girl. Here it is relevant to note, as per the evidence of Pw.1, having of mobile came to know by the mother of SOS, she had informed about the same to higher authority, then only they made enquiry about the mobile. If this piece of evidence is taken into consideration, there is lot of contradictions with regard to having of MO1 by the victim girl and the same was noticed by this witness.
29 Spl.C.C.No.501/2017
37. The prosecution treated this witness as hostile to the case of prosecution and suggested each and every word of her statement, for that she has admitted the same. The accused tested veracity of evidence of this witness by eliciting some commission and omission and also elicited that she has not given any report to the Director of the institution in respect of the alleged incident on the victim girl, even she has not given any written report to the police. She has also admitted that she has not given movement register extract of the Institution on that day. She herself took the victim girl, Pw.2 and other children to Meenakshi temple and return from the temple. Further she has admitted that she has not informed the late coming of the victim girl and Pw.2 to higher authorities, since she didn't know about the same on that day. Further it is her evidence that she doesn't know directly that the victim girl and Pw.2 went to Bannerughatta and she came to know the same through the other children on the next day when they were talking about the same. She had no problem to lodge complaint immediately after hearing about the incident to the police. Further she has admitted that:
30 Spl.C.C.No.501/2017
"£Á£ÀÄ ¥ÉÇðøÀgÀ ªÀÄÄAzÉ ºÉýPÉ PÉÆqÀĪÀ ªÉÆzÀ®Ä £ÀªÄÀ ä ªÉÄïÁ¢üPÁjUÀ¼ÀÄ ªÀÄvÀÄÛ ¤zÉðñÀPgÀ À eÉÆvÉ ZÀZð É ªÀiÁr CzÉà jÃwAiÀÄ°è ºÉýPÉ PÉÆnÖzÉÃÝ £É JgÀAzÉ ¸Àj. £Á£ÀÄ F ¢£ÀªÀÇ £À£Àß ¸ÁPÀëå £ÀÄrAiÀÄ®Ä £À£Àß ªÉÄïÁ¢üPÁjUÀ¼À ªÀiÁvÀÄ PÉý §A¢zÉÃÝ £É JAzÀgÉ ¸Àj."
If the above said admission is taken into consideration, she is a tutored witness and in order to support the case of prosecution she came to depose falsely against accused. At this stage, this Court feels to observe that the evidence of this witness cannot be believable one to believe alleged offences against accused beyond all reasonable doubt.
38. By going through the evidence of Pw.5-Vishwanatha Reddy-The Assistant Village Director of SOS, he has deposed that on 14-01-2017 he and others along with Cw.3 searched for Cw.1 and Cw.2 every where, but the evidence of Pw.3 is that she doesn't know about the late coming of Cw.1 and Cw.2 and she has not complained about the same to this witness. If this piece of evidence is taken into consideration, it contradicts with each other. Further he has deposed on the very same day, the victim girl returns to home, but he has not enquired about their late coming and about their whereabouts and where they had gone. If really a prudent officer, when there any children went outside 31 Spl.C.C.No.501/2017 and not return in time, definitely he is going to enquire them, but he has not done so, as such it is not safe to accept the evidence of this witness to believe the alleged offences against accused. Further he has deposed in his chief examination about recovery of mobile phone from the victim girl and came to know about the chat made by her with the accused, the victim girl told the accused had taken her to Bannerughatta along with Pw.2 in his car and committed misbehaviour with her and that misbehaviour is nothing but sexual abuse, as such he has lodged complaint through the victim girl against accused.
39. The accused tested the veracity of evidence of this witness by eliciting some commission and omission and elicited that he cannot remember at what time Cw.3 along with children went to Meenakshi Temple on 14-01-2017 and at what time they return to the village house. Further it is his evidence that he has not made efforts to trace the victim girl and Pw.2 who are gone with Pw.3-Anuradha. Further he has not enquired personally with the victim girl and Pw.2 on 11-02-2017 about the incident. If the above said evidence is taken into consideration, this Court feels to observe that he doesn't know 32 Spl.C.C.No.501/2017 anything about the alleged incident. In order to safeguard the prestige of the Institution, he came to depose falsely against accused and the prosecution fails to establish alleged offences against accused beyond all reasonable doubt through Pw.5.
40. By going through the evidence of Pw.4-Mangala Gowri-the genetic mother of the victim girl, she has deposed that she came to know about the alleged incident on 12-02- 2017 over phone from SOS Institution, immediately she came to the Institution enquired with the victim girl and also beaten with advice. In the cross-examination she has clearly deposed that she came to know about the alleged incident only through SOS Institution. At this stage, the evidence of this witness is hear say evidence and in order to prove the alleged offences against accused, her evidence is in no way helpful to the prosecution.
41. By going through the evidence of Pw.10-Chowdappa- Head Constable-3717, he has deposed that on 11-02-2017 at about 03.00 p.m., he has received the complaint as per Ex.P1, registered the same in Crime No.61/2017 for the offences punishable under Section 363 of IPC and section 8, 11(4) of 33 Spl.C.C.No.501/2017 POCSO Act. He has entered Shara on the complaint and prepared FIR as per Ex.P10 and his signature is Ex.P10(a). The accused tested veracity of evidence of this witness, except denial suggestion, nothing has been elicited favourable to the defense taken by him. At this stage, the evidence of this witness is a formal one.
42. By going through the evidence of Pw.11- G.M.Kavitha-P.S.I.-Investigation Officer, she has deposed that she has received record from Cw.20, conducted further investigation, went to the spot and conducted mahazar as per Ex.P2 from 04.00 p.m., to 06.00 p.m. at B.G.Road, Gottigere Bus stop, near Someshwara Temple before Panch witnesses.
43. On perusal of evidence of Pw.6-Ravi.M., he has deposed that on 11-02-2017 the police conducted mahazar at B.G.Road, Gottigere Bus stop, near Someshwara temple, the spot was shown by the victim girl and Ex.P2(b) is his signature. He has identified MO1 produced by the victim girl. Here the accused tested the veracity of evidence of this witness by eliciting some commission and omission and also elicited that 34 Spl.C.C.No.501/2017 he doesn't know what had written in Ex.P2 and the same was written by P.S.I-Kavitha in her own hand writing, except that he doesn't know anything about process of conducting mahazar. Further he has deposed that the mobile was taken from the spot itself. Here it is the case of prosecution that the mobile was not seized at the spot, whereas it was produced before the P.S.I., in the station. Further it is his evidence that "¥ÉÇð¸ÀgÀÄ £À£ÀߣÀÄß ªÉƨÉÊ¯ï ©zÀÝ ¸À¼ Ü PÀ ÉÌ ºÁUÀÆ DgÉÆæ C¸À¨ÀsåªÁV ªÀwð¹zÀ ¸À¼ Ü À JA§ ¸À¼ Ü P À ÉÌ £À£ÀߣÀÄß PÀgzÉ ÀÄPÉÆAqÀÄ ºÉÆVgÀ°®è ºÁUÀÆ £À£Àß ¸ÀªÀÄPÀëªÀÄ AiÀiÁªÀÅzÉà ¥ÀAZÀ£ÁªÉÄ dgÀÄV¹gÀĪÀÅ¢®è ºÁUÀÆ ¤.¦.2 ¥ÀAZÀ£ÁªÉÄAiÀÄ£ÀÄß oÁuÉAiÀÄ°è PÀĽvÀÄ vÀAiÀiÁgÀÄ ªÀiÁrzÀÄÝ ¥ÉÇðøï oÁuÉAiÀÄ°è D zÁR¯ÉUÉ ¸À» ªÀiÁrzÉÃÝ £É JAzÀgÉ ¸Àj." If the above said evidence is taken into consideration, it is not safe to accept the evidence of this witness and he being the van driver of the SOS Children Village, is an interested witness and it is quite natural to support to the case of prosecution.
44. Further Pw.11 deposed that on 12-02-2017 she has entrusted Cw.17 and Cw.18 to trace out the accused and also recorded statement of Cw.2 to Cw.7, whereas Harshita and Manjunath turned hostile to the case of prosecution and their evidence contradicts with each other. She has also deposed that on the same day the accused was produced before her along 35 Spl.C.C.No.501/2017 with Tata Indica Car bearing No.KA-05-AE-8891 by Cw.17 along with his report-Ex.P11. She has arrested the accused and recorded his voluntary statement as per Ex.P12 and also seized car through seizure mahazar as per Ex.P13. She has also identified the mobile phone as MO2. Here the Panch witness of Ex.P13 not stepped into the witness box to give evidence. On 13-02-2017 the accused had taken her near Bannerughatta Champakadhama Swamy temple, showed the car parking place, where she has conducted spot mahazar as per Ex.P15 at about 10.30 a.m., to 11.30 a.m.
45. In order to prove the said process of conducting mahazar, the prosecution produces the evidence of Pw.12- Gopal, he has deposed that he has not seen the accused earlier, the police not taken him to any where, the accused has not shown car parking place at Bannerughatta Champakadhama Swamy temple, towards northern side, before him no such mahazar was conducted as per Ex.P15, but Ex.P15(c) is his signature and the police obtained the same when he went to Konanakunte Police station to ascertain about his brother's quarrel due to alcoholic state of mind. He doesn't know what 36 Spl.C.C.No.501/2017 had written in Ex.P15, the police also not read over its contents. The prosecution treated this witness as hostile to prosecution case and suggested each and every word of Ex.P15, for that he has denied the same. Through the evidence of Pw.12, the prosecution fails to establish the alleged process of conducting mahazar as per Ex.P15.
46. Further Pw.11 deposed that she has collected Ex.P7, Ex.P8, Ex.P9 and Ex.P16-study certificate, admission register extracts and transfer certificate. She has sent the victim to give her evidence before the Magistrate. She has also recorded statement of Cw.8 and Cw.9. She has received Ex.P3-statement of victim girl given before Magistrate. After closing of investigation, she has filed charge sheet against accused. Here on perusal of Ex.P3 also there is no such statement given by the victim girl, except stating that the accused touched on her shoulder and thigh through his hand and lightly hugged her and nothing has been stated before the Magistrate also in order to attract the offence under section 366 and 354 of IPC. The accused tested the veracity of evidence of this witness by eliciting some commission and omission, except denial 37 Spl.C.C.No.501/2017 suggestion, nothing has been elicited favourable to the defense taken by him. At this stage this Court feels to observe that the evidence of this witness is a formal one.
47. The oral and documentary evidence placed on record by the prosecution is not sufficient to prove the alleged offences against the accused beyond all reasonable doubt. The defense of the accused and the facts and circumstances of the case including materials on record discussed above probablise the defense of the accused rather than the case of the prosecution.
48. In view of aforesaid reasons, I hold that the evidence of Pw.1 to Pw.12 and documentary evidence as per Ex.P1 to Ex.P16 and MO1 and MO2, placed on record in respect of alleged offence is insufficient to prove that about two months back as on 14-01-2017, the accused met the victim girl-Cw.1 at tuition class through Cw.8-Harshitha. Thereafter, he started to sexually abuse her and was always following her. On 14-01- 2017 in the afternoon at about 12.00 hours, when the victim girl and her sister-Cw.2 went out of village house to purchase bangles, near Gottigere bus stop, on Konakunte Main Road the 38 Spl.C.C.No.501/2017 accused induced the victim and forcibly taken her along with Cw.2 to Bannerughatta Hills in car bearing No. KA-05-AE-8891, brought the victim to car parking area of Bannerughatta temple, with an intention to outrage her modesty hugged her and while returning to home when the victim girl was sitting in the front seat of the car, the accused by putting his hand to her waist tried to outrage her modesty and also he has given mobile to the victim girl to contact him over phone and thereby the accused committed offence punishable under section 366 and 354 of I.P.C., beyond all reasonable doubt. Consequently I hold Point No.1 in the "Negative".
49. Point No.3:- For the above said reasons and discussions on Point No.1 and 2, I hold that the accused is entitled for an order of acquittal. Hence, in the final result, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. the accused is hereby acquitted for the offences punishable under section 366 and 354 of IPC. His bail bond and surety bond stand cancelled.39 Spl.C.C.No.501/2017
MO1 and MO2 treated as worth properties. Office is directed to forfeit MO1 and MO2 to the Government in accordance with law after appeal period is over and if an appeal is preferred, after disposal of said appeal and as per its result. Further the interim custody of car bearing registration No.KA- 05-AE-8891 is made absolute.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open Court on this the 29th Day of November 2018) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION Pw.1 Victim Cw.1 01-02-2018 Pw.2 Shasikala Cw.2 01-02-2018 Pw.3 Anuradha Cw.3 01-02-2018 Pw.4 Mangala Gowri Cw.4 10-04-2018 Pw.5 Vishwanatha Reddy Cw.6 10-04-2018 Pw.6 Ravi.M. Cw.10 10-04-2018 Pw.7 Harshita Cw.8 20-07-2018 Pw.8 R.Manjunath Cw.9 20-07-2018 Pw.9 D.V. Aravind Cw.19 21-08-2018 Pw.10 D.Chowdappa Cw.20 21-08-2018 40 Spl.C.C.No.501/2017 Pw.11 G.M.Kavitha Cw.21 21-08-2018 Pw.12 Gopal Cw.14 06-09-2018 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Complaint Pw.1 01-02-2018 Ex.P 1a Signature of Pw.1 Pw.1 01-02-2018 Ex.P 2 Mahazar Pw.1 01-02-2018 Ex.P 2a Signature of Pw.1 Pw.1 01-02-2018 Ex.P 2b Signature of Pw.6 Pw.6 10-04-2018 Ex.P 2c Signature of Pw.11 Pw.11 06-07-2018 Ex.P 3 Statement of victim Pw.1 01-02-2018 before Magistrate Ex.P 3a Signature of Pw.1 Pw.1 01-02-2018 Ex.P 4 Statement of Pw.2 Pw.2 01-02-2018 Ex.P 4a Marked portion Pw.2 01-02-2018 Ex.P 5 Statement of Pw.7 Pw.7 20-07-2018 Ex.P 6 Statement of Pw.8 Pw.8 20-07-2018 Ex.P 7 Letter Pw.9 21-08-2018 Ex.P 7a Signature of Pw.9 Pw.9 21-08-2018 Ex.P 7b Signature of accused Pw.11 06-09-2018 Ex.P 8 Admission Register Pw.9 21-08-2018 Extract Ex.P 8a Signature of Pw.9 Pw.9 21-08-2018 Ex.P 8b Signature of accused Pw.11 06-09-2018 Ex.P 9 Admission Register Pw.9 21-08-2018 Extract Ex.P 9a Signature of Pw.9 Pw.9 21-08-2018 Ex.P 9b Signature of accused Pw.11 06-09-2018 41 Spl.C.C.No.501/2017 Ex.P 10 FIR Pw.10 21-08-2018 Ex.P 10a Signature of Pw.10 Pw.10 21-08-2018 Ex.P 11 Report of Cw.27 Pw.11 06-09-2018 Ex.P 11a Signature of Pw.11 Pw.11 06-09-2018 Ex.P 11b Signature of Cw.27 Pw.11 06-09-2018 Ex.P 12 Voluntary statement Pw.11 06-09-2018 of accused Ex.P 12a Signature of Pw.11 Pw.11 06-09-2018 Ex.P 12b Signature of accused Pw.11 06-09-2018 Ex.P 13 Mahazar Pw.11 06-09-2018 Ex.P 13a Signature of Pw.11 Pw.11 06-09-2018 Ex.P 13b Signature of accused Pw.11 06-09-2018 Ex.P 14 Photo of seized vehicle Pw.11 06-09-2018 Ex.P 15 Mahazar Pw.11 06-09-2018 Ex.P 15a Signature of Pw.11 Pw.11 06-09-2018 Ex.P 15b Signature of accused Pw.11 06-09-2018 Ex.P 15c Signature of Pw.12 Pw.12 06-09-2018 Ex.P 16 Copy of T.C. of Pw.11 06-09-2018 accused Ex.P 16a Signature of Pw.11 Pw.11 06-09-2018 LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION MO1 Mobile phone Pw.1 01-02-2018 MO2 Black colour Nokia Pw.11 06-09-2018 mobile phone 42 Spl.C.C.No.501/2017 LIST OF WITNESSES EXAMINED, DOCUMENTS MARKED & MO.S MARKED ON BEHALF OF DEFENCE NIL L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE