Bangalore District Court
The State Of Karnataka vs Madhu on 16 November, 2017
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
Dated this the 21st Day of October 2017
- : PRESENT: -
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
Bangalore
SPECIAL C.C. No. 466/2014
COMPLAINANT:
The State of Karnataka,
By MICO Layout Police Station,
Bangalore.
[Public Prosecutor-Bangalore]
/ VERSUS /
ACCUSED:
Madhu,
S/o. Parashuram, 20 years,
R/at. Near Bhuvaneshwari Temple,
18th Cross, 7th Main, N.S. Palya,
B.T.M. Layout 2nd Stage,
Bengaluru.
[By Sri.M.M.D-Advocate.]
1 Date of commission of offence 29-03-2012
2 Date of report of occurrence 29-03-2012
2 Spl.C.C.No.466/2014
3 Date of arrest of Accused 17-05-2012
Date of release of Accused 07-11-2016
Date of arrest of Accused 15-09-2017
Period undergone in custody 26days, 6 months
by Accused & 4 years
4 Date of commencement of evidence 26-11-2013
5 Date of closing of evidence 17-08-2017
6 Name of the complainant Muniyellappa
7 Offences complained of Section 363, 344,
366, 376 of IPC
8 Opinion of the Judge Accused is
convicted
9 Order of Sentence As per the
final order
JUDGMENT
This charge sheet filed by Police Inspector, MICO Layout Police Station-Bangalore against the accused for the offences punishable under Section 363, 344, 366-A. 376 of I.P.C.
2. Since it is a case of kidnap 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 Spl.C.C.No.466/2014
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
That on 29-03-2012 at about 12 noon when the victim girl, aged about 16 years, was going to the shop situated at 18th Cross, 7th Main, B.T.M. Layout, N.S. Palya, Bangalore, within the limits of MICO Layout Police Station, the accused being the resident of the same locality forcibly kidnapped her by engaging an auto rickshaw from lawful guardianship of Cw.1-Sri.Muniyellappa, the complainant herein and taken her to the Tamil Nadu State, engaged house of Cw.6-Jai Ganesha, S/o. Mohan Swamy, on rent basis bearing No.3/96, situated at Koil Street, Mayapillar, Teacher's Colony, Kadar Pet, wrongfully confined minor girl Cw.2-Rukmini for 42 days with an intention that she might be compelled or knowing it to be likely that she would be compelled to marry him or that she might be forced or seduced to illicit intercourse and also committed rape on her against her will and thereby committed offences 4 Spl.C.C.No.466/2014 punishable under Section 363, 344, 366-A and 376 of IPC.
4. The Investigation Officer has investigated the same and filed charge sheet against accused for the offences punishable under Section 363, 344, 366-A and 376 of IPC. Thereafter, after filing charge sheet, the summons was issued to the accused. The copy of charge sheet furnished to the 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.
5. Initially the case was made over to FTC-XIV for disposal. Thereafter as per notification No.RSP/18114 dated 09-10-2014 of Hon'ble High Court of Karnataka, Bengaluru S.C.No.975/2012 transferred to L Additional City Civil and Sessions Judge/CCH-51 from CCH-52 i.e., to this Court.
5 Spl.C.C.No.466/2014
6. After receiving the record by this Court, the accused was in judicial custody and he was produced from judicial custody under warrant. Thereafter, the learned predecessor in office framed charge against the accused in respect of section 363, 344, 366 and 376 of IPC and not under Section 366-A of IPC. The learned advocate for the accused submitted no arguments before framing charge. As a result, the contents of the charge read over and explained to the accused in Kannada. The accused pleaded not guilty and submits crime to be tried. Thereafter the case against accused set down for prosecution evidence.
7. The prosecution in order to establish the guilt of the accused has examined in all 15 witnesses as Pw.1 to Pw.15, got marked 20 documents as Ex.P1 to Ex.P20 and also marked 4 material objects as MO1 to MO4 and closed its side evidence. As could be seen from the evidence of Pw.1 to Pw.15-the police officials and doctors deposed against the accused. The victim girl and her father who is 6 Spl.C.C.No.466/2014 complainant initially supported to the case of prosecution and turned hostile to the prosecution case. In view of available incriminating evidence appeared against the accused, he was examined under Section 313 of Cr.P.C., by recording his statement. The accused denied the alleged incriminating evidence appeared against him. During the course of cross-examination, the accused got marked Ex.D1 to Ex.D3 in the cross-examination of Pw1, but no defense evidence is produced. Thereafter arguments heard from both the sides and the matter is set down for judgment.
8. 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. Whether the prosecution has proved beyond all reasonable doubt that on 29-03-2012 at about 12 noon when Cw.2-the victim girl, aged about 16 years, was going to the shop situated at 18th Cross, 7th Main, B.T.M. Layout, N.S. Palya, Bangalore, within the limits of MICO Layout Police Station, the accused being the resident of the same locality forcibly kidnapped her by engaging an auto rickshaw from lawful guardianship 7 Spl.C.C.No.466/2014 of Cw.1-Sri.Muniyellappa, S/o. Late Muniyappa and thereby committed the offence punishable under Section 363 of I.P.C?
2. Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time, place and circumstances after kidnapping 16 years old Cw.2-the victim girl from her lawful Guardianship took her to the Tamil Nadu State, engaged house of Cw.6-Jai Ganesha, S/o. Mohan Swamy, on rent basis bearing No.3/96, situated at Koil Street, Mayapillar, Teacher's Colony, Kadar Pet, wrongfully confined minor girl Cw.2-Rukmini for 42 days and thereby committed the offence punishable under section 344 of IPC?
3. Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time, place and circumstances, the accused after kidnapping minor girl Cw.2-the victim girl, D/o.
Muniyellappa with intent that she might be compelled or knowing it to be likely that she would be compelled or knowing it to be likely that she would be compelled to marry him or that she might be forced or seduced to illicit intercourse and thereby committed the offence punishable under section 366 of IPC?
4. Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time, place and circumstances, the accused after kidnapping minor girl-Cw.2-the victim girl, D/o. Muniyellappa with intent that she might be compelled or knowing it to be likely that she would be compelled to marry him or that she might be forced or seduced to illicit intercourse took her to Tamil Nadu State engaged house of Cw.6-Jai Ganesh bearing No.3/96, Koil Street, Mayapillar, Teacher's Colony, Kadar Pet, confined Cw.2-the victim girl for 42 days and committed rape on her against her will and thereby committed the offence punishable under section 376 of IPC?
5. What Order?
8 Spl.C.C.No.466/2014
9. My findings on the above points are as under:-
Point No.1: In the Affirmative.
Point No.2: In the Affirmative.
Point No.3: In the Affirmative.
Point No.4: In the Affirmative.
Point No.5: As per the final orders for the following:
REASONS
10. Point No.1 to 4: As these points are inter- related, hence, I have taken up together for my consideration in order to avoid repetition of facts.
11. Perused the entire record, exhibited documents, oral testimony and arguments canvassed by the learned advocate for the accused and the learned Public Prosecutor.
12. In order to prove the alleged offence against the accused the prosecution examined in all 15 witnesses as Pw.1 to Pw.15 got marked 20 documents as Ex.P1 to Ex.P20 and MO1 to MO4 with Ex.D1 to Ex.D3 and this Court perused the same.
9 Spl.C.C.No.466/2014
13. As per the prosecution case, Pw.2 is the complainant, Pw.1 is the victim girl, Pw.3 is the mother of victim girl, Pw.4 and Pw.5 are the witnesses who had given statement, Pw.6 and Pw.13 are the doctors, Pw.7 to Pw.12, Pw.14 and Pw.15 are the police officials and other staff of police. Hence, this Court shall proceed to see whether the available evidence of said witnesses are sufficient for establishing the alleged offences against the accused.
14. In order to establish the alleged offence against accused the prosecution is required to prove that on 29-03- 2012 at about 12 noon when the victim girl, aged about 16 years, was going to the shop situated at 18th Cross, 7th Main, B.T.M. Layout, N.S. Palya, Bangalore, within the limits of MICO Layout Police Station, the accused being the resident of the same locality forcibly kidnapped her by engaging an auto rickshaw from lawful guardianship of Cw.1-Sri.Muniyellappa, the complainant herein and taken her to the Tamil Nadu State, engaged house of Cw.6-Jai 10 Spl.C.C.No.466/2014 Ganesha, S/o. Mohan Swamy, on rent basis bearing No.3/96, situated at Koil Street, Mayapillar, Teacher's Colony, Kadar Pet, wrongfully confined minor girl Cw.2- Rukmini for 42 days with an intention that she might be compelled or knowing it to be likely that she would be compelled to marry him or that she might be forced or seduced to illicit intercourse and also committed rape on her against her will and thereby committed offence punishable under section 363, 344, 366 and 376 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.
15. Before venturing into scan the available materials evidence on record, it is necessary to mention the very definition of offences under Section 363, 344, 366 and 376 of IPC.
11 Spl.C.C.No.466/2014Section 363 of IPC defines that:
Punishment for kidnapping-whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to 7 years and shall also be liable to fine.
Section 344 of IPC defines that:
Wrongful confinement for ten or more days.- Whoever wrongfully confines any person for ten days, or more, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
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 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 aforesaid.
Section 376 of IPC defines that:
Punishment for rape-(1)Whoever, except cases provided for by sub-section (2), commits rape shall be punished with rigorous imprisonment of either description 12 Spl.C.C.No.466/2014 for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine, With these observations now left with available material evidence produced by the prosecution to consider whether the prosecution proved the alleged offences against the accused beyond all reasonable doubt or not or the defense to probabalises the defense of the accused.
16. By going through the evidence of Pw.1-the victim girl in her chief examination she has supported the case of the prosecution that while she was on the way towards school, the accused followed her and harassing her stating that he is loving her and she should love him, for that she has refused the same and the said fact was told to her parents, her parents have also advised him, but he has not heeded to their advise, as a result her parents decided to vacate the said house and to take a house on lease in some other area. The said fact came to know by the accused.
On 29-03-2012 when her father went to deposit school fee, 13 Spl.C.C.No.466/2014 her mother went for her work and her brother also went to college, in that house herself and her grand mother was available, at that time at about 12.00 noon she went to provision shop, at that time the accused came and called upon her that he wants to talk with her, for that she refused for the same, as a result she was forcibly taken into an auto and the said auto went towards Silk Board and at Silk Board she has boarded in Tamil Nadu bus and he had taken her to his home town. Due to life threat she has not screamed at the relevant point of time when he forcibly taken her into auto and boarded to Tamil Nadu bus. After that he had taken a rented house in his village and kept her in that village. On 30-03-2012 itself in the night he has raped her. Even she has requested not to do such things. He has kept her there for 40 days by locking the room and on all the 40 days he has raped her every day. On 07-05-2012 the accused taken her to K.G.F, in that place some body asked her in respect of her parents and place, at that time the accused left her there. She has 14 Spl.C.C.No.466/2014 received phone from some body and called to her parents. On 08-05-2012 her parents came and taken to their custody. On 11-05-2012 she was taken before police, the police taken her Jaya Nagar Hospital for medical examination. Then only she came to know about lodging of complaint by her. She has identified the accused who kidnapped and raped her. Her date of birth was 04-02- 1996. When this piece of evidence is taken into consideration in her chief examination she has supported the case of prosecution.
17. The accused tested the veracity of evidence of this witness, but nothing has been elicited favourable to the defense taken by him. On the other hand, she has clearly deposed that the accused was not known person to her, but he was residing in a neighbouring house. As such she knows the accused. She was also elicited that:
"DgÉÆæ ªÀÄzÀsÄ«UÀÆ ºÁUÀÆ £À£Àß vÀAzÉUÀÆ MAzÉgÀqÀÄ ¨Áj UÀ¯ÁmÉUÀ¼ÁVzÀݪÀÅ JAzÀgÉ ¸Àj. ¸ÀzÀj UÀ¯ÁmÉUÀ¼ÀÄ LzÁgÀÄ ¨Áj CVzÀݪÀÅ JAzÀgÉ ¸ÁQë JgÀqÀÄ ¨Áj ªÀiÁvÀæ UÀ¯ÁmÉUÀ¼ÁVzÀݪÀÅ JAzÀÄ £ÀÄr¢zÁÝgÉ."15 Spl.C.C.No.466/2014
Here it is not in dispute of harassing the victim girl by accused as deposed in her chief examination. The elicitation of this piece of evidence also corroborates the harassment caused by the accused to the victim girl. Further she was elicited that:
"£ÀªÀÄä ªÀÄ£ÉAiÀÄ »A¨sÁUÀzÀ¯Éèà CgÉÆæAiÀÄ ªÀÄ£É E¢ÝvÀÄÛ. £ÁªÀÅ J£ï.J¸ï.¥Á¼Àå ªÀÄ£ÉUÉ ºÉÆÃzÀ ¸Àé®è ¢£ÀUÀ¼À £ÀAvÀgÀ¢AzÀ CgÉÆæ £À£ÀߣÀÄß »A¨Á°¸À®Ä ¥ÁægÀA©¹zÀ. D §UÉÎ ¥ÉǰøÀjUÉ zÀÆgÀÄ PÉÆnÖgÁ JAzÀgÉ, ¸ÁQë ¸ÀzÀj «ZÁgÀª£ À ÀÄß £Á£ÀÄ £À£Àß vÀAzÉ- vÁ¬ÄUÉ ºÉýzÉ."
She has also deposed that:
"£Á£ÀÄ CgÉÆæUÉ JAzÀÆ ¥ÉæêÀÄ¥ÀvÀæ §gÉ¢gÀĪÀÅ¢®è."
Further she was elicited that she cannot remember the date when the accused has proposed his love with her and she used to accompany with one friend to go to school, but in the evening she alone returned to home. Further she was elicited that:
"£Á£ÀÄ D ¢£À ªÀģɬÄAzÀ ºÉÆgÀUÉ §AzÁUÀ ªÀÄzsÁåºÀß 12 UÀAmÉAiÀiÁVvÀÄÛ. £ÀªÀÄä ªÀģɬÄAzÀ CAUÀr JµÀÄÖ zÀÆgÀzÀ°è EzÉ JAzÀÄ £À£ÀUÉ ¤RgÀªÁV ºÉüÀ®Ä DUÀĪÀÅ¢®è. £ÀªÀÄä ªÀģɬÄAzÀ ¸Àé®à zÀÆgÀzÀ°è ªÀÄÄRågÀ¸ÉÛAiÀÄ°è ¸ÀzÀj CAUÀr EvÀÄÛ. ¸ÀzÀj CAUÀrAiÀÄ §½ d£À ¸ÀAzÀtô E¢ÝvÀÄÛ. D ¸ÀªÀÄAiÀÄzÀ°è DgÉÆæ-ªÀÄzÀsÄ DmÉÆÃzÀ°è §AzÀ£ÀÄ. £Á£ÀÄ CAUÀrUÉ ºÉÆÃzÀ JµÀÄÖ ¸ÀªÀÄAiÀÄzÀ £ÀAvÀgÀ DgÉÆæ DmÉÆÃzÀ°è CAUÀrAiÀÄ §½ §AzÀ£ÀÄ JAzÀÄ £À£ÀUÉ ºÉüÀ®Ä DUÀĪÀÅ¢®è.16 Spl.C.C.No.466/2014
DgÉÆæ £À£ÀUÉ ¨ÉzÀjPÉ ºÁQzÀÝjAzÀ £À£ÀUÉ PÀÆUÀ®Ä DUÀ°®è. ¹¯ïÌ ¨ÉÆÃqïðªÀgÉUÀÆ £Á£ÀÄ DmÉÆÃzÀ°è ¥ÀæAiÀiÁt ªÀiÁrzÉ."
Again the suggestion made to this witness is that:
"J£ï.J¸ï.¥Á¼Àå¢AzÀ ¹¯ïÌ ¨ÉÆÃqï𠧸ïì ¤¯ÁÝtzÀªÀgÉUÀÆ É ÀÄPÉÆAqÀÄ §AzÀ£ÀÄ JAzÀgÉ ¸Àj."
DgÉÆæ £À£ÀߣÀÄß CmÉÆÃzÀ°è PÀgz If this piece of suggestion taken into consideration the accused accepted the fact of taking the victim girl in an auto from N.S.Palya to Silk Board bus stop and then he has boarded Tamil Nadu bus along with the victim girl.
18. Further the accused suggested that:
"¸ÀzÀj CmÉÆÃzÀ £ÀA§gï £À£ÀUÉ ºÉüÀ®Ä DUÀĪÀÅ¢®è. DgÉÆæ DmÉÆêÀ£ÀÄß qÉçÊªï ªÀiÁqÀÄwÛgÀ°®è. DgÉÆæAiÀÄ ¸ÉßûvÀ DmÉÆêÀ£ÀÄß qÉçÊªï ªÀiÁqÀÄwÛzÀÝ. ¹¯ïÌ ¨ÉÆÃqï𠧸ïì ¤¯ÁÝtzÀ°è d£À ¸ÀAzÀtô E¢ÝvÀÄÛ JAzÀgÉ ¸Àj. ¨ÉAUÀ¼ÀÆj¤AzÀ vÀ«Ä¼ÀÄ £Ár£Àªg À ÉUÀÆ £Á£ÀÄ JµÀÄÖ UÀAmÉUÀ¼À PÁ® CgÉÆæAiÉÆA¢UÉ ¥ÀæAiÀiÁt ªÀiÁrzÉ JAzÀÄ £À£ÀUÉ ºÉüÀ®Ä £É£À¦®è. D jÃw ¥ÀæAiÀiÁt ªÀiÁqÀÄwÛzÁÝUÀ £À£ÀUÉ ¥ÀæeÉÕ E¢ÝvÀÄÛ. £ÁªÀÅ ¥ÀæAiÀiÁt ªÀiÁqÀÄwÛzÀÝ §¹ì£À°è ¸Àj¸ÀĪÀiÁgÀÄ d£ÀgÀÄ EzÀÝgÀÄ JAzÀgÉ ¸Àj."
If this piece of evidence is taken into consideration the accused himself accepted of taking the victim girl in an auto and the said auto belonged to the friend of the accused and his friend was driving said auto. Further the suggestion is also very clear that the accused had taken the victim girl in 17 Spl.C.C.No.466/2014 Tamil Nadu bus and the defense is that she has not screamed by alerting the passengers of Tamil Nadu bus. But her defense is that the accused threatened her with dire consequences, as a result she has not screamed and altered the public. Though the victim girl denied the suggestion, but the suggestion is very clear that:
"DUÀ®Æ £Á£ÀÄ PÀÆVPÉƼÀî°®è. DgÉÆæ ªÀÄzÀsÄ £À£ÀߣÀÄß GzÉÃÝ ±À¥ÀǪÀðPÀªÁV PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV®è ºÁUÀÆ £Á£Éà CgÉÆæAiÉÆA¢UÉ ºÉÆÃzÉ JAzÀgÉ ¸ÀjAiÀÄ®è."
If the said suggestion taken into consideration, the accused indirectly admitted taking of victim girl to his village and keeping her there for 40 days in a rented house and he has also raped her in that house. Further she was elicited that:
"£ÁªÀÅ ¸ÀĪÀiÁgÀÄ 10 UÀAmÉ PÁ® ¥ÀæAiÀiÁt ªÀiÁrgÀ§ºÀÄzÀÄ JAzÀgÉ EgÀ§ºÀÄzÀÄ KPÉAzÀgÉ ¸ÀAeÉAiÀiÁVvÀÄÛ JAzÀÄ ¸ÁQë £ÀÄr¢gÀÄvÁÛgÉ. ¸ÀzÀj 10 UÀAmÉ CªÀ¢üAiÀÄ°è CgÉÆæ-ªÀÄzÀsÄ £À£ÀߣÀÄß ©lÄÖ ºÉÆgÀUÉ J®Æè ºÉÆÃUÀ°®è. §¹ì£À°è CgÉÆæ £À£ÉÆßA¢UÉ ªÀiÁvÀ£ÁqÀÄwÛzÀÝ£ÀÄ JAzÀgÉ ¸ÀjAiÀÄ®è."
She was elicited that:
"ªÀiÁUÀð ªÀÄzsÉå £Á£ÀÄ §¹ì¤AzÀ MAzÀÄ ¨ÁjAiÀÄÆ E½AiÀÄ°®è. ¸ÁQë ¸ÀévÀB £ÀÀÄrAiÀÄĪÀÅzÉãÉAzÀgÉ £À£ÀߣÀÄß E½AiÀÄ®Ä ©qÀ°®è."18 Spl.C.C.No.466/2014
She has also deposed that:
"¸ÀzÀj CªÀ¢üAiÀÄ°è £Á£ÀÄ MAzÀÄ ¨ÁjAiÀÄÆ PÀÆUÀ°®è. ¸ÁQë ¸ÀévBÀ £ÀÄrAiÀÄĪÀÅzÉãÉAzÀgÉ £À£ÀUÉ ¨ÉzÀjPÉ ºÁPÀ¯ÁVvÀÄÛ."
Further she was elicited that:
"¢£ÁAPÀ 29 gÀAzÀÄ ¸ÀAeÉAiÉÄà £ÁªÀÅ vÀ«Ä¼ÀÄ£ÁqÀÄ vÀ®Ä¦zɪÀÅ. vÀ«Ä¼ÀÄ£Ár£À°è gÀƪÀiï ªÀiÁrzÀÝgÀÄ. £ÁªÀÅ C°è vÀAVzɪÀÅ. vÀ«Ä¼ÀÄ£Ár£À°è gÀƪÀiï£ÀÄß ªÉÆzÀ¯ÃÉ ªÀiÁrzÀÝgÀÄ. £ÁªÀÅ 29gÀ ¸ÀAeÉ gÀÆ«ÄUÉ ºÉÆÃV vÀAVzɪÀÅ. D ¢£À ¸ÀAeÉ JµÀÄÖ UÀAmÉAiÀiÁVvÀÄÛ JAzÀÄ £À£ÀUÉ £É£À¦®è. ªÉÄlÖ®Ä ºÀwÛ £ÁªÀÅ gÀÆ«ÄUÉ ºÉÆÃzɪÀÅ. ¸ÀzÀj gÀÆ«Ä£À CPÀÌ-¥ÀPÀÌ ªÀÄ£ÉUÀ¼ÀÄ EzÀݪÀÅ JAzÀgÉ ¸Àj. 30£Éà vÁjÃT£ÀªÀgÉUÀÆ ªÀÄzÀsÄ £À£ÉÆßA¢UÉ EzÀÝ£ÀÄ. ªÀÄgÀÄ¢£À ªÀÄzÀsÄ £À£ÀUÉ Hl vÀAzÀÄ PÉÆlÖ£ÀÄ. ªÀÄzÀsÄ Hl vÀgÀ®Ä ºÉÆgÀUÉ ºÉÆÃzÀ£ÀÄ JAzÀgÉ ¸Àj. ¸ÀĪÀiÁgÀÄ 10 ¤«ÄµÀUÀ¼À PÁ® Hl vÀgÀ®Ä ªÀÄzÀsÄ ºÉÆgÀUÉ ºÉÆÃVzÀÝ£ÀÄ. Hl vÀgÀĪÀAvÉ £Á£ÀÄ ªÀÄzÀsĪÀ£ÀÄß PÉüÀ°®è. DvÀ£Éà Hl vÀAzÀÄ PÉÆlÖ£ÀÄ. ¸ÀzÀj Hl ªÀÄzsÁåºÀߣÀzÀ HlªÁVvÀÄÛ JAzÀgÉ ¸Àj. D£ÀAvÀgÀ CgÉÆæ ªÀÄzÀsÄ £À£ÀUÉ ¥ÀÅ£ÀB gÁwAiÀÄ Hl vÀAzÀÄ PÉÆlÖ£ÀÄ JAzÀgÉ ¸Àj. D ¸ÀªÀÄAiÀÄzÀ°è ¸ÀºÀ ªÀÄzÀsÄ gÀÆ«Ä£À°è £À£ÉÆߧâ¼À£Éßà ©lÄÖ ºÉÆÃVzÀÝ£ÀÄ JAzÀgÉ ¸Àj. ªÀÄzÀsÄ gÀƫĤAzÀ ºÉÆgÀUÉ ºÉÆÃUÀĪÁUÀ ¨ÉzÀjPÉ ºÁQzÀÝjAzÀ £À£ÀUÉ ªÀÄzÀsÄ ºÉÆgÀUÉ ºÉÆÃzÁUÀ ¸ÀºÀ PÀÆVPÉƼÀî®Ä DUÀ°®è."
If the above said suggestion taken into consideration, it indirectly strengthen the case of the prosecution in the defense of the accused. She has admitted the photo-Ex.D1. But on perusal of said photo on what event it was taken is not explained by the accused as his defense. On the other hand the said photo is half torn portion and unless and until it produces its negative and another portion, it is not 19 Spl.C.C.No.466/2014 safe to accept its genuinity, even though the victim girl admitted the photo is her photo. Further the accused produced Ex.D2-Note book. No doubt it is true that in that note book her birth date is mentioned and it is mentioned she loves Madhu. But that doesn't mean the accused has to take minor girl and have sexual contact with her.
19. Viewing from available material evidence this Court has no impediment in arriving into conclusion that the prosecution established the alleged guilt of the accused through the evidence of the victim girl beyond all reasonable doubt. But at the same time on 09-04-2014 again the accused person recalled the victim girl and cross- examined her and in that cross-examination she was elicited that on 29-03-2012 she herself accompanied with the accused and the accused has not raped on her on 30- 03-2012. It is also elicited that in respect that on that day at 09.30 p.m., she wore her dress. Further she was tested the veracity of the evidence in respect of dated 07-05-2012 20 Spl.C.C.No.466/2014 when she was in K.G.F. On 21-01-2016 again this witness was re-called by the accused person and elicited that her father had given false complaint and the facts and circumstances as stated in the complaint are false. There is ill-will between her father and the accused, as a result he has given such type of complaint. The accused has not taken her to any where and there was no relationship between her and the accused. He has not taken her to any village or town and he has not raped her. There is no relationship between her and also the accused. No doubt it is true that the prosecution again examined her, in her re- examination and suggested the facts and circumstances as stated by her in her chief examination, for that again she has admitted the chief examination stated by her in her cross-examination. Again the accused cross-examined her, again she has stated the evidence that she has given statement by force and the accused was not following her when she was going to school and going to home and he had not taken her to any where in an auto and not resided 21 Spl.C.C.No.466/2014 at Tamil Nadu for 40 days. Here no doubt it is true that after lapse of 2½ years of recording of evidence of the victim girl, the accused re-called the evidence of victim girl and elicited the above stated evidence which is against to the prosecution. But at this stage this Court feels to observe that whatever the evidence given at first by the victim girl has to be accepted and not the later admission given by her, that too after lapse of 2½ years or recording of evidence. Viewing from available material evidence on record this Court feels to observe that through the evidence of Pw.1, the prosecution proved the offence against the accused beyond all reasonable doubt.
20. By gong through the evidence of Pw.2- Muniyellappa, the father of victim girl, he has supported to the case of prosecution in his chief examination and he has also lodged complaint against the accused on 29-03-2012 as per Ex.P1 and his signature is Ex.P1(a). The victim girl was rescued on 07-05-2012 and he went to police station of 22 Spl.C.C.No.466/2014 K.G.F. on 08-05-2012 and taken custody of his daughter. On enquiry with his daughter, she has told that the accused forcibly taken her in an auto and then in Tamil Nadu bus, went to his village, taken a room for rent and kept her in that room for 40 days and every day he used to rape her. Further he has deposed that the police conducted mahazar as per Ex.P2. He has put his LTM.
21. The accused tested the veracity of evidence of this witness by eliciting some commission and omission and except denial suggestion, nothing has been elicited favourable to the defense taken by the accused. He was elicited about 10 days back of the alleged incident, the quarrel was taken place between himself and the accused. When he decided to vacate the house, where he and his family resided at N.S.Palya and the said fact came to know by the accused, he has forcibly taken his daughter to Tamil Nadu. This witness was also once again cross-examined on 21-09-2016 further and admitted about the accused has 23 Spl.C.C.No.466/2014 not taken his daughter any where and he has given false complaint to the police. He went to the extent of deposing that the accused has not raped her daughter and he has not given any statement before police. Again the prosecution re-examined this witness and also elicited that the case of prosecution in respect of lodging complaint against the accused and the accused and her daughter are known with each other and he was used to talk with her daughter. He himself and his wife advised the accused and not to do such things, but rest of the things deposed that he has not given false complaint and false statement before police. When earlier this witness supported the case of prosecution even in the cross-examination also all of a sudden after lapse of 2½ years of giving evidence by him, he has deposed favourable to the accused which is not acceptable. On the other hand the prosecution is entitled to take action against this witness in respect of perjury. Viewing from earlier evidence of this witness both at chief examination and cross-examination this Court feels to 24 Spl.C.C.No.466/2014 observe that the prosecution has proved the alleged offences against the accused beyond all reasonable doubt.
22. Pw.3-Susheela-the mother of victim girl and wife of Pw.2-Muni Yellappa, deposed that the accused was residing at the neighbouring house of her house at N.S. Palya, for that he is known to her. Her daughter-the victim girl told to her that the accused always kindling her, for that she has advised him not to do like that, at that time he has quarreled with her. After that she and her husband vacated their house and shifted to other place. The said fact came to know by the accused. On 29-03-2012 when she went to her work and her husband went to deposit fee to the school, her son went to college, at that time her daughter and her mother were there in the house. She had returned to house at 01.30 p.m., and came to know that her daughter was not in the house and on enquiry with her mother she told that her daughter went to shop, but she did not return home, after that the family members 25 Spl.C.C.No.466/2014 searched, but she was found missing, as a result her husband lodged complaint to the police. On 08-05-2012 at K.G.F., they secured the victim girl, at that time she came to know that the accused left the victim girl in K.G.F. On enquiry with her daughter she told that the accused forcibly took her in a bus towards K.G.F. and there after he had taken her to some other place in Andhra Pradesh and got a room for rent at Venkatapur and detained her in that room for 40 days. He has also raped her on the next day when she left the house i.e., on 30-03-2012. Thereafter he has raped her every day. The said fact stated before police by this witness and the police conducted mahazar at the spot. The police taken her for medical examination, she identified the accused.
23. But in her cross-examination she has turned hostile to the prosecution case and deposed that on 29-09- 2012 her daughter was in the house and she had not been to any where and the accused also not taken her to any 26 Spl.C.C.No.466/2014 where, her daughter not went to Tamil Nadu and K.G.F., and she has not given any statement before police, the police have not taken her daughter any where for medical check up, the accused has not raped her daughter. The prosecution in re-examination examined her and she has admitted that the accused was the neighbouring and her daughter was studying in 10th standard at relevant point of time. She has admitted that:
"¢£ÁAPÀB29.03.2012 gÀAzÀÄ £Á£ÀÄ, £À£Àß ªÀÄUÀ ªÀÄvÀÄÛ £À£Àß UÀAqÀ ªÀÄ£ÉAiÀÄ°è E®èzÀ ¸ÀªÀÄAiÀÄzÀ°è DgÉÆæ £À£Àß ªÀÄUÀ¼£ À ÀÄß DmÉÆÃzÀ°è PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV £ÀAvÀgÀ §¸ï£À°è vÀ«Ä¼ÀÄ£ÁrUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV C°è 40 ¢£ÀUÀ¼À PÁ® DPÉAiÀÄ ªÉÄÃ¯É CvÁåZÁgÀ J¸ÀVzÀ JAzÀÄ £Á£ÀÄ ªÀÄÄRå «ZÁgÀuÉAiÀÄ°è ºÉýzÉÝ. £À£Àß ªÀÄUÀ¼ÀÄ PÁuÉAiÀiÁzÁUÀ £À£Àß AiÀÄdªÀiÁ£ÀgÀÄ zÀÆgÀÄ PÉÆnÖzÀÝgÀÄ JAzÀgÉ ¸Àj. £À£Àß ªÀÄUÀ¼ÀÄ PÁuÉAiÀiÁzÀ 40 ¢£ÀUÀ¼À £ÀAvÀgÀ DPÀÉ PÉfJ¥sï£À°è ¹QÌzÀݼÀÄ JAzÀÄ ¥ÉÇðøÀgÀÄ £ÀªÀÄUÉ ºÉýzÀgÝ ÀÄ JAzÀÄ ªÀÄÄRå «ZÁgÀuÉAiÀÄ°è ºÉýzÉÝÃ£É JAzÀgÉ ¸Àj."
Viewing from available material evidence produced through Pw.3, who is the mother of victim girl, though she has accepted the suggestions made by the advocate for accused in her cross-examination, at the same time again she has supported the case of prosecution in her re- examination. Under these circumstances it is not safe to 27 Spl.C.C.No.466/2014 believe the evidence of Pw.3, whatever deposed by her in her cross-examination and it is to be accepted, the evidence deposed in her chief examination and her re-examination and prosecution proved the offences against the accused beyond all reasonable doubt.
24. By going through the evidence of Pw.4- Kuppuswamy, who accompanied with Pw.2-Muniyellappa to lodge complaint and also to bring the victim girl from K.G.F. He has also deposed that the police came near the house of complainant about two years back and obtained his signature on Ex.P1. Here Ex.P1 is the mahazar, and his signature is marked as Ex.P1(b). The accused cross- examined this witness by eliciting some commission and omission, except denial suggestion, nothing has been elicited favourable to the defense of the accused.
25. By going through the evidence of Pw.5-Kiran Kumar, the brother of victim girl, he has deposed that the victim girl is his sister, her age is 20 years now. In the year 28 Spl.C.C.No.466/2014 2012 she was studying 10th Standard at BTM School. Her father was Luggage auto driver, his mother is house wife. He doesn't know the accused, he doesn't know what had happened and what was done by accused. In the month of March-2012 no matter happened with his sister, the police not enquired him and he has not given any statement before police. The prosecution treated this witness as hostile to the prosecution case and suggested each and every contents of Ex.P3, for that he has denied the same. No doubt it is trued that he being the brother of victim girl has not supported the prosecution case, but the material witnesses-Pw.1 to Pw.3 supported to the case of prosecution in respect of commission of offence by the accused.
26. By going through the evidence of Pw.6- Dr.C.N.Sumangala, who examined the accused on 13-05- 2012, she has deposed that she has examined the accused and issued Ex.P4-Medical report stating that there is nothing to suggest that the person is in-capable to perform 29 Spl.C.C.No.466/2014 sexual intercourse and she has collected MO1 to MO4 from him and handed over the same to the police. Here the prosecution marked material objects as Ex.P5 to Ex.P8 and her signature is Ex.P5(a) to Ex.P8(a) the affixed on MO1 to MO4. The accused tested the veracity of evidence of this witness, but nothing has been elicited favourable to the defense taken by him in respect of medical examination. Through this witness it is very clear that as on the date of incident, the accused was capable of performing sexual intercourse.
27. By going through the evidence of Pw.7- Shwetha.C.K. she has deposed that on 11-05-2015 she has taken the victim girl for medical examination at Jaya Nagar General Hospital and the victim girl was subjected to medical examination, after that she had returned to police station along with the victim girl and handed over the requisition as per Ex.P9 and medical report as per Ex.P10. The accused tested the veracity of evidence of this witness 30 Spl.C.C.No.466/2014 and suggested that she has not taken the victim girl for medical examination and she has not returned and handed over the requisition to Investigation Officer, for that she had denied the same. At this stage this Court opines that the evidence of this witness is a formal one.
28. By going through the evidence of Pw.8-Ramaiah- P.S.I., he has deposed that on 14-05-2015 on the direction of Police Inspector he went to Tamil Nadu, the place of accused within the limits of Vanambadi Police Station, Mayapillal Koyal Street, House No.3/1996 pertaining to Jai Ganesh and he has conducted mahazar as per Ex.P11 before Panchas from 03.00 p.m., to 04.00 p.m., on that day and his signature is Ex.P11(a). 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 the accused in respect of accused not taking the victim girl, but when there is drastic stand taken by the accused with regard to his 31 Spl.C.C.No.466/2014 defense, he has to establish his defense by his own way, not by way of cross-examining Pw.8, who is a formal witness with regard to Ex.P11.
29. By going through the evidence of Pw.9-Shoukath Ali-A.S.I., he has deposed that on 13-05-2012 he went along with A.S.I. Ramegowda and accused to Vanmbadi, Teacher's colony, at the house of Jai Ganesh conducted mahazar as per Ex.P11 and his signature is Ex.P11(b). The accused tested the veracity of this witness by eliciting some commission and omission. In the cross-examination of Pw.8, nothing has been elicited favourable to the defense taken by him. At this stage this Court opines that the evidence of this witness is formal one.
30. By going through the evidence of Pw.10-Daleen Jophlet-Head Mistress of Green Pastures School, N.S. Palya, Bengaluru, she has deposed that the victim girl studied up to 10th standard in said school and her date of birth was 04- 02-1996 as per the records available in her school and she 32 Spl.C.C.No.466/2014 had given Ex.P12-certificate and her signature is Ex.P12(c). The accused tested the veracity of this witness in respect of who had been to the school to get certificate and she had colluded with the police and given false certificate. At this stage this Court feels to observe that with regard to the age of the victim girl is not in dispute at this stage.
31. By going through the evidence of Pw.11- Narasimhamurthy-Head Constable, he has deposed that on 29-03-2012 at 07.30 p.m., he was SHO of MICO Layout Police Station. The complainant came and lodged complaint as per Ex.P2 and his signature is Ex.P2(a). On the basis of said complaint, he has registered FIR-Ex.P13 and his signature is Ex.P13(a). This witness was also cross- examined by the accused by eliciting some commission and omission and tested the veracity of this witness except denial suggestion nothing has been elicited favourable to the defense of the accused. He has also admitted that Ex.P2 is in his hand-writing but that does not mean to 33 Spl.C.C.No.466/2014 disbelieve the case of the prosecution against the accused, since the complainant very much admitted about lodging of complaint against the accused.
32. By going through the evidence of Pw.12- B.S.Mohan Kumar-Dy.S.P., he has deposed that on 11-05- 2012 the victim girl was brought by her father the complainant and gave her statement as per Ex.P14 and his signature is Ex.P14(a) and signature of victim girl is Ex.P14(b). Since the victim girl told about the rape done by the accused on her, he has sent requisition to Court as per Ex.P15 to include Section 376 of IPC and his signature is Ex.P15(a). He has also conducted mahazar as per Ex.P1 and his signature is Ex.P1(c) and thereafter he has recorded statements of Muniyellappa, Susheela, Kiran Kumar, Venktalakshmamma, Jayashree and Biju. Thereafter he has sent the victim girl along with WPC-Sweatha to Jaya Nagar General Hospital for medical examination and after medical examination the police brought the victim girl. He 34 Spl.C.C.No.466/2014 has also recorded the voluntary statement of accused as per Ex.P16 and his signature is Ex.P16(a) and signature of accused is Ex.P16(b). The accused orally admitted that he will show the place where he raped the victim girl. He had sent the accused for medical examination and after medical examination the doctor issued certificate as per Ex.P17 and his signature is Ex.P17(a). He has also sent the police personnel at the place where the victim girl was kept by the accused and raped by accused and after conducting mahazar the said police personnel given report as per Ex.P11 and his signature is Ex.P11(c). He has also received articles collected by the doctor at the time examination from accused and his medical report as per Ex.P4 and his signature is Ex.P4(b) and also subjected the articles to Malupatti No. 112/2012 as per Ex.P18. He received the age certificate of victim girl as per Ex.P12 and his signature is Ex.P12(b). He has also obtained medical certificate of victim girl as per Ex.P10 and his signature is Ex.P10(a). He has also received acknowledgement from FSL as per Ex.P19. 35 Spl.C.C.No.466/2014 The accused tested the veracity of this witness by eliciting some commission and omission and except denial suggestion, nothing has been elicited favourable to the defense of accused with regard to filing of charge sheet after closing of the investigation. At this stage this Court opines the evidence of this witness is a formal one. But this Court accepted the evidence of Pw.1 to Pw.3 to believe commission of offences against accused beyond all reasonable doubt.
33. Pw.13-Dr.Jayamma, she has deposed that on 11- 05-2012 at about 12.30 p.m., she has examined the victim girl. As per the information given by the victim girl from 29- 03-2012 to 11-05-2012 the accused kept her in his custody and also he has sexually inter-coursed her every day. On examination it is found that:
"DPÉAiÀÄ£ÀÄß ¥ÀjÃPÉë ªÀiÁr £ÉÆÃrzÁUÀ PÀ£Áå¥ÉÇgÉ ºÀj¢zÀÄÝ JgÀqÀÄ ¨ÉgÀ¼ÀÄUÀ¼ÀÄ M¼ÀUÉ ºÉÆÃUÀÄwÛzÀݪÀÅ. DPÉAiÀÄ d£À£ÁAUÀzÀ°è AiÀiÁªÀÅzÉà ºÉÆgÀUÁAiÀÄUÀ¼ÀÄ PÀAqÀÄ §gÀ°®è ªÀÄvÀÄÛ AiÀiÁªÀÅzÉà PÀ¯ÉUÀ¼ÀÄ PÀAqÀħgÀ°®è. £À£Àß C©ü¥ÁæAiÀÄzÀ°è DPÉ ªÉÆzÀ®Ä ¯ÉÊAVPÀ QæAiÉÄAiÀÄ°è vÉÆqÀVzÀÄÝ EwÛÃZÉUÉ ¯ÉÊAVPÀ QæAiÉÄAiÀÄ°è vÉÆqÀVzÀ §UÉÎ UÀÄgÀÄvÀÄUÀ¼ÀÄ PÀAqÀÄ §A¢gÀĪÀÅ¢®è."36 Spl.C.C.No.466/2014
If this piece of evidence taken into consideration, admittedly the victim girl was examined on 11-05-2012. It is the case of prosecution and the information of victim girl that from 29-03-2012 to 07-05-2012 the accused had kept the victim girl in his custody and raped her. If really the victim girl was not taken by the accused, how the signs of sexual intercourse found on victim girl not explained by way of defense in cross-examination of the victim girl and the parents of victim girl. After closing of cross-examination of all the three persons, after lapse of 2½ years again the accused recalled and the victim girl and her parents and cross-examined further and elicited contrary to the earlier evidence. Unless and until supported material corroborative, cogent defense produced, it is not safe to accept whatever defense taken by the accused. At this stage the accused tested the veracity of evidence of this witness by eliciting some commission and omission and also elicited that:
37 Spl.C.C.No.466/2014
"£ÉÄÁAzÀ ¨Á®QAiÀÄ£ÀÄß ¥ÀjÃPÉëUÁV £À£Àß §½UÉ ¢B 12.05.2012 gÀAzÀÄ PÀ¼ÀÄ»¹ PÉÆnÖzÁÝgÉ. £ÉÆAzÀ¨Á®QAiÀÄ£ÀÄß £Á£ÀÄ ¥ÀjÃQë¹zÀ ¸ÀªÀÄAiÀÄzÀ°è £À£Àß ¸ÀºÁAiÀÄPÀgÁV D ¸ÀªÀÄAiÀÄzÀ°è ¸ÀA§AzÀs¥lÀ Ö ¹§âA¢ ªÀUÀð £À£Àß eÉÆvÉ EvÀÄÛ. £À£Àß §½UÉ £ÉÆAzÀ¨Á®QAiÀÄ£ÀÄß ¥ÀjÃQë¸À®Ä AiÀiÁªÀ «µÀAiÀÄPÉÌ ¥ÉÇðøÀgÀÄ PÀgv É ÀA¢zÀÝgÀÄ JA§ÄzÀgÀ «µÀAiÀÄ £À£ÀUÉ w½¢vÀÄÛ. ¨Á®QAiÀÄ£ÀÄß £Á£ÀÄ ªÉÊzÀåQÃAiÀÄ vÀ¥Á¸ÀuÉUÉ M¼À¥Àr¹zÉÝãÀÉ JAzÀgÉ ¸Àj. £Á£ÀÄ £ÉÆAzÀ¨Á®QAiÀÄ PÀ£ÀåvÀézÀ ¥ÀjÃPÉëAiÀÄ£ÀÄß ªÀiÁrzÉÃÝ £É. D ¸ÀªÀÄAiÀÄzÀ°è £ÉÆAzÀ¨Á®QAiÀÄÄ £À£Àß §½ ºÉýzÀ ¥ÀæPÁgÀ DPÉ ¢B 29.03.2012 jAzÀ 07.05.2012 gÀªg À ÉUÉ DgÉÆæAiÀÄ eÉÆvÉ EzÀÄÝ D ¢£ÀUÀ¼À°è DgÉÆæAiÀÄÄ DPÉAiÀÄ eÉÆvÉ ¯ÉÊAVPÀ ¸ÀA¥ÀPÀðªÉÃ¥ÀðnÖvÀÄÛ JAzÀÄ ºÉýgÀĪÀ¼ÀÄ."
Again she was elicited that:
"F CªÀ¢üAiÀÄ°è £ÉÆAzÀ¨Á®QAiÀÄ PÀ£ÀåvÀé ºÀgÀtªÁVvÀÄÛ JAzÀÄ £À£ÀUÉ ¤RgÀªÁV ºÉüÀ®Ä DUÀĪÀÅ¢®è DzÀgÉ DPÀÉAiÀÄ PÀ£ÀåvÀé ºÀgÀtªÀÅ ªÉÄÃ¯É ºÉýzÀ CªÀ¢üUÉ ªÉÆzÀ¯ÁzÀgÀÆ DVgÀ§ºÀÄzÀÄ CxÀªÁ £À£Àß §½ ¥ÀjÃPÉëUÉ vÀgÀĪÀ ªÀÄÄ£ÀߪÁzÀgÀÆ DVgÀ§ºÀÄzÀÄ."
The above said elicitation also supports the case of prosecution in respect of sexual intercourse caused by the accused with the victim girl.
No doubt it is true that the accused elicited that:
"¸ÁªÀiÁ£ÀåªÁV MAzÀÄ ºÉtô£ Ú À PÀ£ÀåvÀé ¥ÀzÀgª À ÀÅ D ºÉtÄÚ ¨ÉʹPÀ¯ï ºÉÆqÉzÁUÀ, Nl¢AzÀ, FdĪÀÅzÀjAzÀ ºÁUÀÆ D ºÉtÄÚ vÀ£ÀßµÀÖPÉÌ vÁ£Éà PÁªÀÄ¥ÀæZÉÆÃzÀ£ÉUÉ M¼À¥ÀlÄÖ vÁ£Éà ¸ÀéAiÀÄA¥ÉæÃjvÀªÁV D MAzÀÄ ¸ÀA¥ÀPÀðªÀ£ÀÄß ºÉÆA¢zÁUÀ PÀ£ÀåvÀézÀ ¥ÉÇgÉAiÀÄÄ ºÀjAiÀÄĪÀ ¸ÁzÀsåvÉ EzÉ JA§ ¥Àæ±ÉßUÉ ¸ÁQë EgÀ§ºÀÄzÀÄ JAzÀÄ GvÀÛgÀ PÉÆnÖgÀÄvÁÛgÉ."
But that doesn't mean the accused not inter-coursed with the victim girl. Even no such supporting defense taken by 38 Spl.C.C.No.466/2014 the accused that some other person having contact with the victim girl, through that person she had intercourse and not by the accused. On the other hand, the cross-examination of the victim girl and her parents is also very clear that the accused was known person to them and he had taken the victim girl to his village and detained her for some time and raped her. It is not the case of the prosecution also the victim girl received injury on her body to consider further cross-examination of this witness by the accused. Viewing from available material evidence placed on record through the evidence of Pw.13 there is no ground made out by the accused to disbelieve the evidence of this witness favourable to the prosecution. On the other hand the evidence of doctor also supports the case of prosecution.
34. By going through the evidence of Pw.14- Prashanth, he is police personnel, he was appointed to trace out the accused on 12-05-2012. He has arrested the accused at N.S.Palya and produced him before SHO by 39 Spl.C.C.No.466/2014 giving report as per Ex.P20 and his signature is Ex.P20(a). The accused tested the veracity of this witness, except denial suggestion nothing has been elicited favourable to the defense of the accused. At this stage, this Court opines that the evidence of this witness is formal one.
35. By going through the evidence of Pw.15-Cheluva Murthy, he is police personnel, he has deposed that on 13- 05-2012 as usual he has reported to his day duty and the SHO directed him and Cw.15 to take the accused for medical examination at Victoria Hospital, as a result he has taken the accused along with Cw.15 to Victoria Hospital and produced him before doctor and got him medical check- up and after examination he has produced the accused before Investigation Officer and reported the same as per report-Ex.P17 and his signature is Ex.P17(b). The evidence of this witness remains unassailed. But this Court opines the evidence of this witness is also a formal one.
36. Here on perusal entire prosecution witnesses 40 Spl.C.C.No.466/2014 evidence placed on record and case of prosecution in this case, acquaintance of accused with the victim girl is not disputed and the prosecution established the same. It is also not in dispute that the accused was residing behind the house of the victim girl. The available evidence also discloses the accused forcibly taken the victim girl in an auto up to Silk Board and then boarded her in Tamil Nadu bus and went to his village and kept her in a rented room for 42 days and thereafter he has raped her every day.
37. The oral and documentary evidence placed on record by the prosecution is sufficient to prove the alleged offences against the accused beyond all reasonable doubt. The defense of the accused not established by him through cross-examination of Pw.1 to Pw.15. The facts and circumstances of the case including materials on record discussed above probabalises the case of the prosecution rather than the defense of the accused.
38. In view of the above said reasons, I hold that the 41 Spl.C.C.No.466/2014 evidence of Pw.1 to Pw.15 and documentary evidence of Ex.P1 to Ex.P20, MO1 to MO4 with Ex.D1 to Ex.D3 placed on record in respect of alleged offences is sufficient to prove that, on 29-03-2012 at about 12 noon when the victim girl, aged about 16 years, was going to the shop situated at 18th Cross, 7th Main, B.T.M. Layout, N.S. Palya, Bangalore, within the limits of MICO Layout Police Station, the accused being the resident of the same locality forcibly kidnapped her by engaging an auto rickshaw from lawful guardianship of Cw.1-Sri.Muniyellappa, the complainant herein and taken her to the Tamil Nadu State, engaged house of Cw.6- Jai Ganesha, S/o. Mohan Swamy, on rent basis bearing No.3/96, situated at Koil Street, Mayapillar, Teacher's Colony, Kadar Pet, wrongfully confined minor girl Cw.2- Rukmini for 42 days with an intention that she might be compelled or knowing it to be likely that she would be compelled to marry him or that she might be forced or seduced to illicit intercourse and also committed rape on her against her will and thereby the accused committed 42 Spl.C.C.No.466/2014 offences punishable under Section 363, 344, 366 and 376 of I.P.C., beyond all reasonable doubt. Consequently, I hold Point No.1 to 4 in the "Affirmative".
39. Point No.5:- For the above said reasons and discussions on Point No.1 to 4, I hold that the accused is entitled for an order of conviction. Hence, in the final result, I proceed to pass the following:
ORDER Acting under Section 235(2) of Cr.P.C., the accused is found guilty and convicted for the offences punishable under Section 363, 344, 366 and 376 of I.P.C.
(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 21st Day of October 2017.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.43 Spl.C.C.No.466/2014
ORDER ON SENTENCE Heard the arguments from the learned counsel for the accused and the learned Public Prosecutor regarding sentence.
2. The accused submits that the accused is only earning member in his family, he is having aged parents and younger brother and he has to look after them and requested to take lenient view in respect of imposing sentence on him. On the other hand the learned Public Prosecutor submits that looking to the facts of the case, lenient view should not be taken regarding sentence.
3. It is not in dispute that the accused forcibly took the victim girl to his home place and detained her for 42 days in a rented house and raped her. This fact is deposed by Pw.1 to Pw.3. When such being the case, I feel the ends of justice will be met by imposing the minimum sentence to accused for the offences punishable under Section 363, 344, 366 and 376 of I.P.C.
4. Further punishment for the offence under Section 376 of I.P.C., fixed rigorous imprisonment for a term which shall not be less than seven years, but which 44 Spl.C.C.No.466/2014 may extend to imprisonment for life and fine. In respect of Section 366 of I.P.C., the punishment prescribed of Procuration of girl, forced intercourse, the punishment is imprisonment which may extend to 10 years and shall also be liable to fine. Further in respect of Section 344 of I.P.C., whoever wrongfully confines any person for ten days, or more shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine. Here the accused kept the victim girl for 42 days in a rented house by confining her and raped her. In respect of Section 363 of IPC whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. Here the accused kidnapped the victim from her lawful guardianship. Thus in my opinion if the Court has to impose sentence of rigorous imprisonment of seven years with fine of Rs.5,000/- and in default of payment of fine, to under go Simple imprisonment for a period of four months in respect of offence under Section 376 of I.P.C., against accused, simple imprisonment of three years with fine of Rs.3,000/-
and in default of payment of fine to under go simple imprisonment for a period three months in respect of offence under Section 363 of I.P.C., simple imprisonment of 45 Spl.C.C.No.466/2014 two years with fine of Rs.2,000/- and in default of payment of fine to under go simple imprisonment for a period two months in respect of offence under Section 344 of I.P.C., simple imprisonment of one year with fine of Rs.1,000/- and in default of payment of fine to under go simple imprisonment for a period one month in respect of offence under Section 366 of I.P.C., fixed to accused no impediment will be caused to him. Hence, I proceed to pass the sentence as under:
ORDER Accused is sentenced to under go rigorous Imprisonment for a period of seven years and to pay a fine of Rs.5,000/- for the offence under Section 376 of I.P.C., and in default of payment of fine, he shall further under go Simple Imprisonment for a period of four months.
Accused is sentenced to under go simple imprisonment for a period of three years and to pay a fine of Rs.3,000/- for the offence punishable under Section 363 of I.P.C. and in default for payment of fine he shall further undergo simple imprisonment for a period of three months.46 Spl.C.C.No.466/2014
Accused is sentenced to under go simple imprisonment for a period of two years and to pay a fine of Rs.2,000/- for the offence punishable under Section 344 of I.P.C. and in default for payment of fine he shall further undergo simple imprisonment for a period of two months.
Accused is sentenced to under go simple imprisonment for a period of one year and to pay a fine of Rs.1,000/- for the offence punishable under Section 366 of I.P.C. and in default for payment of fine he shall further undergo simple imprisonment for a period of one month.
All the four sentences of accused shall run concurrently.
The accused is entitled for benefit of set off for the period for which he has already undergone imprisonment as under trial prisoner during the course of trial as provided under Section 428 of Cr.P.C.
MO1 to MO4 are treated as worthless properties. Office is directed to destroy MO1 to MO4 in accordance with law after appeal period 47 Spl.C.C.No.466/2014 is over, if an appeal is preferred, after the disposal of the appeal in accordance with law.
Issue conviction warrant to jail authorities.
Furnish free copy of judgment and order of sentence to the accused persons forth with.
(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 21st Day of October 2017.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
Pw.1 Rukmini Cw.1 26-11-2013
Pw.2 Muniyellappa Cw.2 26-11-2013
Pw.3 Susheela Cw.7 26-11-2013
Pw.4 Kuppuswamy Cw.3 26-11-2013
Pw.5 Kiran Kumar Cw.8 07-10-2016
Pw.6 Dr.C.N.Sumangala Cw.19 21-11-2016
Pw.7 Swetha C.K. Cw.13 21-11-2016
Pw.8 Ramaiah Cw.16 07-12-2016
Pw.9 Shoukath Ali Cw.17 12-01-2017
Pw.10 J.Daleen Jophlet Cw.21 31-01-2017
48 Spl.C.C.No.466/2014
Pw.11 Narasimha Murthy Cw.22 31-01-2017
Pw.12 B.S. Mohan Kumar Cw.23 27-02-2017
Pw.13 Dr.Jayamma Cw.20 09-03-2017
Pw.14 Prasahanth Cw.12 24-03-2017
Pw.15 Cheluva Murthy Cw.14 17-06-2017
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION
Ex.P 1 Mahazar Pw.2 26-11-2013
Ex.P 1a Signature of Pw.2 Pw.2 26-11-2013
Ex.P 1b Signature of Pw.4 Pw.4 26-11-2013
Ex.P 1c Signature of Pw.12 Pw.12 27-02-2017
Ex.P 2 Complaint Pw.2 26-11-2013
Ex.P 2a Signature of Pw.11 Pw.11 31-01-2017
Ex.P 3 Statement of Pw.5 Pw.5 07-10-2016
Ex.P 4 Medical report of Pw.6 21-11-2016
accused
Ex.P 4a Signature of Pw.6 Pw.6 21-11-2016
Ex.P 4b Signature of Pw.12 Pw.12 27-02-2017
Ex.P 5 to MO1 to MO4 Pw.6 21-11-2016
8
Ex.P 5a Signature of Pw.6 Pw.6 21-11-2016
to
8a
Ex.P 9 Report of Pw.7 Pw.7 21-11-2016
Ex.P 9a Signature of Pw.7 Pw.7 21-11-2016
Ex.P 10 Medical report of Pw.7 21-11-2016
victim girl
49 Spl.C.C.No.466/2014
Ex.P 10a Signature of Pw.7 Pw.7 21-11-2016
Ex.P 10b Signature of Pw.13 Pw.13 09-03-2017
Ex.P 11 Mahazar Pw.8 07-12-2016
Ex.P 11a Signature of Pw.8 Pw.8 07-12-2016
Ex.P 11b Signature of Pw.9 Pw.9 12-01-2017
Ex.P 11c Signature of Pw.12 Pw.12 27-02-2017
Ex.P 12 School certificate Pw.10 31-01-2017
Ex.P 12a Signature of Pw.10 Pw.10 31-01-2017
Ex.P 12b Signature of Pw.12 Pw.12 27-02-2017
Ex.P 13 F.I.R. Pw.11 31-01-2017
Ex.P 13a Signature of Pw.11 Pw.11 31-01-2017
Ex.P 14 Statement of victim Pw.12 27-02-2017
girl
Ex.P 14a Signature of Pw.12 Pw.12 27-02-2017
Ex.P 14b Signature of victim Pw.12 27-02-2017
girl
Ex.P 15 Requisition to Court Pw.12 27-02-2017
Ex.P 15a Signature of Pw.12 Pw.12 27-02-2017
Ex.P 16 Voluntary statement Pw.12 27-02-2017
of accused
Ex.P 16a Signature of Pw.12 Pw.12 27-02-2017
Ex.P 16b Signature of Pw.12 27-02-2017
accused
Ex.P 17 Medical report of Pw.12 27-02-2017
victim girl
Ex.P 17a Signature of Pw.12 Pw.12 27-02-2017
Ex.P 17b Signature of Pw.15 Pw.15 17-06-2017
Ex.P 18 P.F.No.112/2012 Pw.12 27-02-2017
50 Spl.C.C.No.466/2014
Ex.P 19 FSL Acknowledge- Pw.12 27-02-2017
ment
Ex.P 20 Report Pw.14 24-03-2017
Ex.P 20a Signature of Pw.14 Pw.14 24-03-2017
LIST OF MATERIAL OBJECTS MARKED ON
BEHALF OF PROSECUTION
MO 1 Jeans Pant Pw.6 21-11-2016
MO 2 White colour shirt Pw.6 21-11-2016
MO 3 Underwear Pw.6 21-11-2016
MO 4 Pubic hair Pw.6 21-11-2016
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION
Ex.D 1 Photo Pw.1 15-03-2014
Ex.D 2 Note Book Pw.1 15-03-2014
Ex.D 3 Document (one sheet) Pw.1 15-03-2014
LIST OF WITNESSES EXAMINED & MO.S
MARKED ON BEHALF OF DEFENCE
NIL
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE