Bangalore District Court
State By Malleshwaram Police vs Lakshmi Narayana on 27 June, 2019
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the, 27th day of June, 2019.
Present: SMT.R.SHARADA,B.A. M.L
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO.740 /2018
COMPLAINANT: State by Malleshwaram Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Lakshmi Narayana,
Son of Narayana,
Aged 29 Years,
Residing at No.2/2, S.C.Coloney,
Taadipatri Road, Battalapalli,
Dharmavaram, Ananthapura District,
Andhra Pradesh.
[By Advocates Sri. N.Revanna and
Sri.K.Srinivas]
1. Date of commission of offence From 20.7.2018 to 21.7.2018
2. Date of report of occurrence 21.7.2018
of the offence
3. Date of arrest of accused 04.08.2018
Date on which the accused
14.01.2019
was released on bail
Period undergone by the 5 Months and 14 days
accused in the judicial
custody
2 Spl CC No.740/2018
4. Date of commencement of 19.11.2018
evidence
5. Date of closing of evidence 12.6.2019
6. Name of the complainant Sri.Adithya, complainant as well as the
paternal uncle of the victim girl
7. Offences complained of Secs. 363 and 376 of IPC and Secs. 4
and 6 of POCSO Act, 2012.
8. Opinion of the Judge The accused is acquitted
JUDGEMENT
The Police Inspector, Malleswaram police station has filed charge-sheet against the accused for the offences punishable under Secs. 363 and 376 of IPC and Secs. 4 and 6 of POCSO Act, 2012.
2. The brief facts of the prosecution case is that, CW2/ minor victim girl being the daughter of the elder brother of CW1 and the accused also being the maternal uncle (aPÀÌ¥Àà) of CW2 used to talk with CW2, when the things stood like thins, the accused in order to have physical relationship with CW2, enticed her and on 20.7.2018 in the morning at 9.30 A.M., the accused went near the house of CW2 situated at BWSSB Quarters, 19th Cross, Malleswaram, Bangalore and without informing anybody in the house, the accused took CW2/victim girl along with him to Tirupathi and on 21.7.2018 the accused got married with CW2/victim girl at a small Temple at Tirupathi and brought her to Chintalavenu Grama, Chittor District, Tirupati Taluk, to a 3 Spl CC No.740/2018 rented house belonging to CW11 and kept CW2/victim girl in the said house, and on 30.7.2018, at 10 P.M., in the night, despite the protest of CW2/victim girl, the accused by telling that he has married CW2, committed aggravated penetrative sexual assault on her for 2 to 3 times. Hence, the accused has committed the offences punishable under Secs.363, 376 of IPC and Secs. 4 and 6 of POCSO Act, 2012. Initially the complainant who is none other than the another maternal uncle (aPÀÌ¥Àà) of CW2/victim girl had lodged a complaint with the complainant police alleging that, CW2/victim girl who was aged 19 years on 20.7.2018 in the morning at 9.30 A.M., left the house by telling that she wants to talk to her friend but did not turn up. Inspite of search, the victim girl was not found. The complainant suspected that the accused herein might have kidnapped the victim girl. Hence, the complainant prayed the complainant police to trace out the victim girl. On the basis of the complaint, the complainant police have registered a case in Cr.No.150/2018 and continued with the investigation. During the course of investigation, the victim girl and the accused were traced out and on the basis of the statement given by the victim girl, the accused was arrested and the Investigating Officer continued with the investigation and after completion of investigation, he has filed charge-sheet against the accused for the offences punishable under Secs. 363 and 376 of IPC and Secs. 4 and 6 of POCSO Act, 2012.
4 Spl CC No.740/20183. During the course of investigation the Investigating Officer has arrested the accused on 04.08.2018. Thereafter the accused was remanded to the judicial custody. As per the orders of this court on 14.01.2019, the accused was released on bail. As per the provisions of Sec.207 of Cr.P.C, copies of the charge-sheet furnished to the accused. Accordingly charge is framed, read over and explained to the accused, he pleaded not guilty, claims to be tried. Accordingly, the trial is fixed, summons issued to the prosecution witnesses.
4. The prosecution has examined 15 witnesses as PWs-1 to 15 and got marked 23 documents as Exs.P1 to P23, besides marking MO-1. Thereafter Statement of the accused recorded under Sec.313 of Cr.P.C. The accused has denied all the incriminating evidence told to him, but he has not examined any witnesses on his behalf and no documents are marked.
5. Heard the arguments of the learned Public Prosecutor and the learned counsel for the accused. On perusal of the oral and documentary evidence, at this stage, following Points arise for my consideration:
1. Whether the prosecution proves that, CW2/ minor victim girl being the daughter of the elder brother of CW1 and the accused also being the maternal uncle (aPÀÌ¥Àà) of CW2 used to talk with CW2, when the things stood like thins, the accused in order to have physical relationship with CW2, enticed her and on 20.7.2018 in the morning at 9.30 A.M., the accused went near the house of CW2 situated at BWSSB Quarters, 19 Cross, Malleswaram, Bangalore and th without informing anybody in the house, the accused took CW2/victim girl along with him to Tirupathi, thereby the 5 Spl CC No.740/2018 accused has committed an offence punishable under Sec.363 of IPC?
2. Whether the prosecution has further proved that, the accused on the above said date, time and place not only took CW2/minor victim girl along with him but on 21.7.2018 the accused got married with CW2/victim girl at a small Temple at Tirupathi and brought her to Chintalavenu Grama, Chittor District, Tirupati Taluk, to a rented house belonging to CW11 and kept CW2/victim girl in the said house, and on 30.7.2018, at 10 P.M., in the night, despite the protest of CW2/victim girl, the accused by telling that he has married CW2, committed aggravated penetrative sexual assault on her for 2 to 3 times, thereby the accused has committed the offences punishable under Sec.376 of IPC and under Secs. 4 and 6 of POCSO Act, 2012?
3. What Order?
6. My findings on the above points are as under:
Point Nos.1 and 2: In the Negative, Point No.3: As per the final order, for the following:
REASONS
7. POINT NOS.1 AND 2:- These Two Points are inter-
linked to each other, hence, they are taken up together for common discussion, in order to avoid repetition of facts.
8. During the course of arguments, the learned Public Prosecutor has submitted that in order to prove the prosecution case totally 15 witnesses are examined as PWs-1 to 15 and got marked 23 documents are marked as Exs.P1 to P23, besides marking MO.1 Though the victim girl and other material witnesses have not supported the case of the prosecution but the 6 Spl CC No.740/2018 court has to look into the facts and circumstances of the case along with available evidence of the prosecution to bring home the guilt of the accused. In the present case, the Investigating Officer has totally supported the case of the prosecution and he has deposed before the court that, the complainant approached him with a complaint, thereby he has received the same, registered as FIR, taken up investigation, traced out the victim girl as well as the accused recorded statements drawn mahazar finally after completion of investigation, submitted charge-sheet against the accused. This evidence is not contradicted by the counsel for the accused. Apart from that, according to Sec.29 of POCSO Act, 2012, there is burden casted upon the accused to prove his innocence, but, he has failed to chose to examine any of the witness on his behalf, thereby, the prosecution has proved the guilt of the accused beyond all reasonable doubts and the accused has to be convicted and he prays to convict the accused in the interest of justice and equity.
9. Per contra, the learned counsel for the accused submitted that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt. The victim girl and her parents have totally turned hostile to the prosecution case when there were subjected by the cross-examination by the learned Public Prosecutor. These witnesses have denied all the suggestions put to them supporting their chief evidence. When all these material witnesses not supported the case of the prosecution, considering only the evidence of the police officials and the Investigating Officer, the court cannot convict the accused for the 7 Spl CC No.740/2018 offences as alleged. Even the victim girl has not given consent for medical examination when she was sent to the doctor. Even the Doctor has written letter to the Police Inspector of the complainant police station that the victim girl and her mother have not consented for medical examination. When the material witnesses including the victim girl have not supported the prosecution case, the accused may be acquitted. Hence, the learned counsel for the accused prays to acquit the accused in the interest of justice and equity.
10. I have perused the oral and documentary evidence furnished by the prosecution before this court. The prosecution in order to prove its case has examined as many as 15 witnesses, out of them, PW1/CW2 is the victim girl, PW2/CW1 is the complainant of this case as well as the maternal uncle of the victim girl, who set criminal law into motion by filing a missing complaint of the victim girl. PW3/CW3 is the far relative of the accused. PW4/CW8 is the witness to the copy of the Seizure Mahazar-Ex.P5. PW5/CW12 is the father of the victim girl, PW6/CW13 is the mother of the victim girl, PW7/CW14 is the grandmother of the victim girl. PW8/CW15 is the friend of the victim girl. PW9/CW19 is the Lady doctor. PW10/CW18 is another Lady Doctor. PW11/CW21 is the Pediatrician. PW12/CW23 is the Head Constable who has traced out and apprehended the accused and the victim girl. PW13/CW26 is the Woman PSI who has conducted part of investigation. PW14/CW25 who has also done part of investigation by receiving the complaint and registering the FIR. PW15/CW27 is the Final Investigating Officer 8 Spl CC No.740/2018 of this case. In support of its case, the prosecution has also produced the following documents: Ex.P1 is the Statement of the victim girl given before the Magistrate under Sec.164 of Cr.P.C. Ex.P2 is the letter dated: 6.8.2018 written by the victim girl to the Police Inspector of the complainant police station. Ex.P3 is the Complaint dated: 21.7.2018. Ex.P4 is the Panchanama. Ex.P5 is the Copy of the Seizure Mahazar. Ex.P6 is the Statement of PW5 given before the complainant police under Sec.161 of Cr.P.C. Ex.P7 is the Statement of PW6 given before the complainant police under Sec.161 of Cr.P.C. Ex.P8 is the Statement of PW7 given before the complainant police under Sec.161 of Cr.P.C. Ex.P9 is the Statement of PW8 given before the complainant police under Sec.161 of Cr.P.C. Ex.P10 is the Statement of PW1/victim girl given before the complainant police under Sec.161 of Cr.P.C. Ex.P11 is the Statement of PW2 given before the complainant police under Sec.161 of Cr.P.C. Ex.P12 is the MLC Record of PW1/victim girl. Ex.P13 is the Letter written by PW10 to the Police Inspector of the complainant police station. Ex.P14 is the Out Patient Record of PW1/victim girl. Ex.P15 is the Certificate issued by PW11 on the back side of Ex.P12. Ex.P16 is the Medical Certificate of the accused. Ex.P17 is the Seizure Panchanama. Ex.P18 is the Panchanama. Ex.P19 is the photograph. Ex.P20 is the Bill. Ex.P21 is the Official Memorandum. Ex.P22 is the Report given by PW12 to the PSI of complainant police station and Ex.P23 is the FIR.
9 Spl CC No.740/201811. Now coming to the evaluation of the prosecution witnesses, firstly, I would like to take up the evidence of the victim girl who is examined as PW1. PW1/victim girl in her evidence before the court in chief examination has deposed that, she knows the accused and she has identified the accused in the accused platform located in the court hall. The accused is her relative i.e., her paternal uncle (aPÀÌ¥Àà). CW1 is also her paternal uncle (aPÀÌ¥Àà) and he is the elder brother of the accused. She knows that CW1 had lodged a complaint. At that time, she was aged 18 years and she was staying in the house only. She had gone to Tirupthi with the accused, so being afraid of that, a complaint was lodged. She is residing along with her parents and grandparents. As her family was not sending her to Tirupathi, she had asked the accused to take her to Tirupathi and as such, the accused had taken her to Tirupahi. Two days after, the police had come to Tirupathi and brought her and the accused to Bengaluru. She has stated these things before the police as well as before the Magistrate. She has identified her signature on Ex.P1- Sec.164 Statement given by her before the Magistrate and her signature is marked as Ex.P1(a). She has also identified a Letter dated: 6.8.2018 written by her as per Ex.P2 and her signature is Ex.P2(a). She has not given her consent for her medical examination. Other than this, she do not have anything to say. The accused has not caused any trouble to her. She was cross-examined by the learned counsel for the accused. In her cross-examination, she has admitted that, the accused has not caused any trouble to her. Herself and the accused had gone to Tirupathi, other than this, nothing has happened i.e., other than 10 Spl CC No.740/2018 Ex.P1 she has not given any statement before anybody. This witness was again recalled and in her further examination in chief by the learned Public Prosecutor, she has deposed that, she has not given any statement against the accused either before the police or before the Magistrate. At this stage, this witness has been treated as hostile and subjected for cross-examination by the learned Public Prosecutor. In her cross-examination by the learned Public Prosecutor, she has denied the suggestions put to her that, the accused was staying in her house and he was talking to her and when nobody were used to be in the house, the accused used to take her to cinema and the accused was loving her are all denied. She has also denied that, on 27.7.2018, in the morning at 9.30 A.M., the accused took her to Tirupathi and forced her for marriage and got married with her and had physical contact with her. She has denied that she has given her statement before the complainant police as per Ex.P10 and her signature is marked as Ex.P10(a). She has admitted that the accused is her close relative. Because of this reason, by compromising with the accused at the instance of her parents, she is deposing falsely in order to help the accused.
12. PW2-Adithya, is the complainant as well as the maternal uncle (aP˴ˈ) of the victim girl. In his evidence before the court in the chief examination, he has deposed that, he knows the accused and he has identified the accused in the accused platform located in the court hall. The accused is none other than his younger brother and he is uncle to the victim girl. Now the victim girl is 11 Spl CC No.740/2018 aged 19 years. Three and half months back to the giving his evidence before the court, he had lodged a missing complaint of the victim girl. He has identified the Complaint given by him which is marked as Ex.P3 and his signature on it as per Ex.P3(a). One day, PW1 was found missing. Being afraid of that, he had lodged a complaint. After lodging the complaint, the police had come near his house and conducted Mahazar as per Ex.P4 and his signature is marked as Ex.P4(a). Two to three days after lodging the complaint, the accused and the victim girl had returned back. They had told that they had gone to a temple. He has not given any further statement. He do not know the contents of Exs.P3 and P4. The accused has not given any trouble to CW2. Other than this, he has nothing to say. He has been cross- examined by the learned counsel for the accused. In his cross- examination, he has admitted that, the police had obtained his signatures on Exs.P3 and P4 in the police station. This witness was again recalled and subjected to further chief examination by the learned Public Prosecutor. In his further cross-examination, he has admitted that the accused is his own younger brother. The father of the victim girl is his cousin brother. He has also admitted that, during the year 2017, the accused was residing in the house of the victim girl. At that time, the victim girl might have been 16 to 17 years. At the time of lodging the complaint, the victim girl was aged 18 years 6 months. The victim girl has not stated anything about the accused and he [PW2] has not given any further statement. At this stage, this witness has been treated as hostile and subjected for cross-examination by the learned Public Prosecutor. In his cross-examination by the learned Public 12 Spl CC No.740/2018 Prosecutor, he has admitted that, before lodging the complaint, the accused was residing in the house of the victim girl. But, he has denied the suggestions put to him that, the accused talking to her and when nobody were used to be in the house, the accused used to take the victim girl to cinema and the accused was loving the victim girl. He has also denied that, on 27.7.2018, in the morning at 9.30 A.M., the accused took the victim girl to Tirupathi and forced her for marriage and got married with her and had physical contact with her. He has also denied that he has given further statement before the complainant police as per Ex.P11. He has also denied that, he knows all the things. But he has admitted that, the accused is his younger brother. But denied that, because of this reason, at the instance of his family members, he is deposing falsely to help the accused.
13. PW3-Ramanji, is a witness to Ex.P4- Mahazar. In his evidence before the court, when Ex.P4 was confronted to him, he has identified his signature on it as Ex.P4(b). About 3 months back to the date of his giving his evidence before the court, when he had gone to the police station for some other work, the police had obtained his signature. Other than this he do not know anything. He knows the accused. The accused is his far relative. He do not know the contents of Ex.P4. The learned counsel for the accused was present and submitted no cross-examination of this witness. Again this witness was recalled and he was examined in chief by the learned Public Prosecutor. In his chief examination by the learned Public Prosecutor, he has deposed that, himself and the accused are residing in the same area and as such, he has 13 Spl CC No.740/2018 acquaintance with the accused. He do not know the contents of Ex.P4. At this stage, this witness has been treated as hostile and subjected for cross-examination by the learned Public Prosecutor. In his cross-examination, by the learned Public Prosecutor, this witness has denied the suggestions that, on 27.7.2018, the police had come near the house of the accused after lodging the complaint and CW1 was also present there. He has also denied he has signed on the Mahazar by knowing all its contents. He has also denied that, in order to help the accused, he is deposing falsely before the court.
14. PW4-Narayanaswamy is the witness to the Seizure Mahazar-Ex.P5. In his evidence before the court he has deposed that, he do not know the accused and he also do not know CW6 and CW7. He has not identified the accused in the accused platform located in the court hall. He do not know anything about this case and no mahazar was conducted in his presence. At this stage, this witness has been treated as hostile and subjected for cross-examination by the learned Public Prosecutor. In his cross- examination, he has denied that, on 3.8.2018 himself and other panchas were taken to Andhra Pradesh and there the accused had shown that he had given his Samsung mobile to one Sridhar. The police had not seized the said Mobile in his presence. He has identified the signature on Ex.P5 as per Ex.P5(a). He has denied, that he knows the contents of Ex.P5. He has also denied that, in order to help the accused he is deposing falsely before the court.
14 Spl CC No.740/201815. PW5-Srinivasamurthy, is the father of the victim girl PW6- Nagaveni is the mother of the victim girl and PW7-Narayanamma is the grandmother of the victim girl. In their evidence before the court, these witnesses have deposed that, about their family status. Further they have deposed that, the victim girl is the daughter of PWs-5 and 6 and grand-daughter of PW7. They can identify the accused. They have identified the accused in the closed accused platform located in the court hall. The accused is the brother of PW5 and brother-in-law of PW6 and the son of the younger brother of PW7. The victim girl is going to attain the age of majority in short span of time. The victim girl was studying in MLA School, at Malleswaram and as she failed in SSLC, she stopped her studies and was staying in the house. Earlier the accused was residing with them in their house. After getting a job, the accused was staying in P.G. At that time, the accused was not coming to their house. The accused has not caused any trouble to the victim girl.. The accused has not misbehaved with the victim girl and they have not given any statements before the police. They do not know why CW1 had lodged a complaint. As the victim girl was found missing, CW1 had lodged a complaint. The accused had taken the victim girl to a Temple. Other than this, they do not know anything. At this stage, these witnesses have been treated as hostile and subjected for cross-examination by the learned Public Prosecutor. In their cross-examination, these witnesses have denied that, when they used to go to the work, the accused used to come to their house and he was liberal with the victim girl. They have also denied that, the accused enticed the victim girl and got married her and 15 Spl CC No.740/2018 under threat, he had physical contact with the victim girl. The victim girl had told them that herself [victim girl] and the accused had gone to Tirupathi. They have denied that, they have given statements before the police. The Statement of PW5 is marked as Ex.P6, the statement of PW6 is marked as Ex.P7 and the Statement of PW7 is marked as Ex.P8. They have denied that, as the accused is their relative, they have hidden the true facts and deposing falsely before the court in order to help the accused. The learned counsel for the accused who was present before the court, has stated that he has no cross-examination of these witnesses.
16. PW8-Yashaswini is the friend of the victim girl. In her evidence before the court she has deposed that, she knows CW1 and CWs-13 to 15. CW2/victim girl is her friend and they were learning computer in one place. She also knows the accused and the accused used to come near the computer call and he used to take the victim girl along with him. Three months prior to the date of her giving evidence before the court, one day in the afternoon CWs-13 and 14 had come to her house and enquired about CW2. She told that she do not know anything.
Thereafterwards what happened she do not know. She has not given any statement to the police. At this stage, this witness has been treated as hostile and subjected for cross-examination by the learned Public Prosecutor. In her cross-examination she as admitted that, the accused took CW2 along with him to Tirupathi. But, she has denied that, the accused had forcible physical contact with the victim girl. She has denied that, the said fact came to her knowledge from the parents of the victim girl and likewise, she 16 Spl CC No.740/2018 has given her statement. The said Statement given by her before the complainant police is marked as Ex.P9. She has also denied that, as the victim girl is her friend and as per the say of the parents of the victim girl, she is deposing falsely in order to help the accused.
17. PW9-Dr.Suma, has deposed in her evidence before the court in her chief examination that, on 4.8.2018, at 1.45 P.M., she has examined the victim girl sent by Malleswaram police through WPC along with her mother with the history of sexual assault. She enquired with the victim girl and her mother and after taking consent, she has examined the victim girl aged about 17 years. On physical examination of the victim girl, she found that, the victim girl was developed according to her age and no external injuries were found on the body of the victim girl. She has issued OP records of the victim girl and the same is marked as Ex.P12 and her signature is marked as Ex.P12(a). Thus, this witness has discharged her statutory duty by examining the victim girl physically. This witness was cross-examined by the learned counsel for the accused. In her cross-examination, she has denied that, the victim girl and her mother have not given consent for medical examination of the victim girl and that she has not examined the victim girl. She has also denied that, she is giving false evidence.
17 Spl CC No.740/201818. PW10-Dr.Shashikala, another Lady Doctor who is examined before the court has deposed that, on 4.8.2018 in the evening hours, the victim girl was sent by Malleswaram Police through WPC along with her mother for examination with the history of sexual assault. She enquired with the victim girl and her mother, before commencing the examination, but they have not given the consent for physical examination. Likewise, she has given OP Record of the victim girl which is marked as Ex.P13 and her signature is marked as Ex.P13(a). Thereafterwards, she has sent Ex.P13 to the concerned police with covering letter and the said covering letter is marked as Ex.P14 and her signature is marked as Ex.P14(a). This witness has discharged her statutory duties by issuing OP Record. The learned counsel for the accused was present before the court and submitted that he has no cross-examination of this witness.
19. PW11-Dr.Lakshmipathi.S.R- Pediatrician, KC General Hospital, Bangalore has deposed in his evidence before the court that, on 4.8.2018, at about 4 P.M., the victim girl was referred to him for general physical examination from casualty. The victim girl was accompanied by Malleswaram Police through WPC with the history of sexual assault. He has not taken specific consent from the child or the police, before starting his medical examination. The witness volunteers that the child was co-operating well and answering all the questions put to her, thereby he has given treatment to her. On examination of the child, he found that the child was conscious, alert and active oriented. He referred the child to the Department of Gynecology 18 Spl CC No.740/2018 for further examination. At the time of examination, I have not found any injuries and accordingly he has issued the Certificate as per Ex.P15 and his signature is marked as Ex.15(a). He has issued the Certificate on the back-sheet of Ex.P12. Thus, this witness has performed his statutory duties by issuing Certificate as per Ex.P15. The learned counsel for the accused was present before the court and submitted that he has no cross-examination of this witness.
20. PW12- Prakash.G- Head constable of the Malleswaram Police station has deposed that, on 3.8.2018, CW26 had deputed him and CW24 for tracing out the accused and the victim girl of this case. On enquiry with the phone call details of the accused, he came to know that, the accused was in Tirupathi. Likewise, on 3.8.2018, they went to Tirupathi. As per the information given by the informant, they went to Naidu Mobile shop and enquired with one Sridhar who was the owner of that shop. Said Sridhar told that about 2 days back, one boy and one girl had come to his shop and gave the old mobile and purchased a new mobile and also purchased a sim card. As per the said sim details, the address shown was Keshava Chintaala Shene and with the help of the informant, he [PW12] reached there and enquired one Keshava. Said Keshava told that, the said persons who were as tenants for the last one week, went to another street. The informant took him to the next street and showed a house. In the said house, the victim girl and the accused were together. He secured the panchas and conducted mahazar as per Ex.P17 and his [PW12] signature is marked as Ex.P17(a) and he also seized one Samsung 19 Spl CC No.740/2018 Mobile phone under seizure mahazar and the said Samsung Mobile phone is marked as MO-1. He also took the photo while conducting mahazar as per Ex.P17 and the said photo is marked as Ex.P19 and the bill is marked as Ex.P20. In Ex.P20, the name of the accused is appearing. The official memorandum given to him by the PSI to trace out the accused and the victim girl is marked as Ex.P21 and his signature is marked as Ex.P21(a). The Report given by him to PSI is marked as Ex.P22 and his signature is marked as Ex.P22(a). He can identify the accused before the court as the person whom he had apprehended. Thus, this witness has discharged his statutory duty by tracing out the victim girl and the accused and apprehending them and bringing them back to Bangalore and then to the complainant police station. This witness has been cross-examined by the learned counsel for the accused. In his cross-examination, he has admitted that on 3.8.2018, CW26 sent him to Tirupathi to trace out the victim girl and the accused and to bring them back to Bangalore. But, he has denied that, CW1 had not accompanied him. He has denied that, he has not gone to the Tirupathi and he has not conducted Mahazar in Naidu Shop as per Ex.P17 and that he has created Ex.P17 for the purpose of this case. He has also denied that, he has brought some other person other than the victim girl and the accused of this case who were in the house at Tirupathi. He has also denied that, he has given a false Report.
21. PW13-Renuka.P, Woman PSI, has deposed before the court that, on 3.8.2018, she has taken the case file of this case from CW25 and verified it and continued with the investigation by 20 Spl CC No.740/2018 deputing CWs-23 and 24 for tracing out the victim girl. On 4.8.2018, CWs-23 and 24 have traced out the victim girl and the accused and produced before her and also produced the Mobile before her. Thereafter she recorded the statement of the victim girl. She also obtained the study certificate of the victim girl wherein the victim girl was studying by giving Requisition to the school authorities. Thereafter she has arrested the accused and recorded his voluntary statement and sent him for medical examination and after his medical examination, she produced the accused before the court. On the same day, she sent the victim girl for recording her statement under Sec.164 of Cr.P.C. Later she recoded the statements of the witnesses and also sent the victim girl along with her mother for medical examination. But, the victim girl has not given her consent for medical examination. Thus, this witness has discharged her statutory duty by conducting part of investigation of this case. This witness has been cross-examined by the learned counsel for the accused. In her cross-examination, she has admitted that, she has not issued any Passport to CWs-23 and 24 to go out of the State for investigation. But, she has denied that, CW1 has not given any further statement before her and even the victim girl has not given any statement before her. She has even denied that, the accused and the victim girl were not produced before her after they were secured from Tirupathi.
22. PW14-Jayaramu.M.V- ASI in his evidence before the court has deposed that, on 21.7.2018 in the evening at 4.30 P.M., when he was incharge of the police station, CW1/complainant of this case came to the police station and lodged a complaint that 21 Spl CC No.740/2018 his elder's brother daughter was missing. He received the Complaint which is marked as Ex.P3 and his signature is marked as Ex.P3(b). Thereafter, he prepared FIR as per Ex.P23 and his signature is marked as Ex.P23(a) and thereafter he registered a case in Cr.No.150/2018 and sent FIR to the concerned court and also the copy to his higher officers. Later he handed over the case papers to CW26 for further investigation. Thereby he has discharged his statutory duties by receiving the Complaint and registering FIR. This witness has been cross-examined by the learned counsel for the accused. In his cross-examination, he has denied that, he has lodged a false missing complaint and he is deposing falsely before the court.
23. PW15- K.R.Prasad is the Final Investigating Officer of this case. In his evidence before the court he has deposed that, on 8.8.2018, he received the case papers from CW26 and verified the records. After completion of investigation, as he found that there was accusation against this accused, he submitted charge-sheet against this accused. Thereby he has discharged his statutory duties as Investigating Officer by submitting the charge-sheet against the accused before the court. This witness has been cross-examined by the learned counsel for the accused. In his cross-examination, he has denied that, without conducting any investigation, he has filed false charge-sheet against the accused.
24. Considering the evidence of the prosecution witnesses, particularly, the evidence of PWs-1, 2, 5, 6, 7 and 8, are the material witnesses of the prosecution have been examined to prove 22 Spl CC No.740/2018 the guilt of the accused, but none these witnesses supported the prosecution case to establish that the accused had eloped the victim girl from the legal custody of her parents and thereafter committed aggravated penetrative sexual assault on her. Despite the learned Public Prosecutor treating these witnesses as hostile and subjected them to cross-examination, but he has not been successful in eliciting any incriminating evidence against the accused. Even the contents of the Complaint- Ex.P3, the complainant except stating that the victim girl who had gone out on 20.7.2018 at 9.30 A.M., has not returned home and thereby, a missing complaint had been filed. No allegations are made against this accused. However, in the evidence of PWs-1, 2, 5, 6, 7 and 8 it has come that, the accused who is the cousin of PW5/father of the victim girl, stayed in the house of CW5 for sometimes, thereafter he secured a job and he shifted to Paying Guest house and that that evidence reveal that the accused is a close relative of the victim girl. The victim girl in her evidence has stated that, she had not gone to Tirupathi and that she was interested to go to Tirupathi and therefore she requested the accused to take her to Tirupathi, and accordingly the accused had taken her to Tirupathi. Considering the admissions of the material witnesses that the accused is the cousin of the father of the victim girl and that the accused was staying in the house of the father of the victim girl, for sometimes and taking the liberty, the accused stated to had taken the victim girl with him to Tirupathi. But, none of the material witnesses in their evidence have stated in the accused having had taken the victim girl illegally, without their approval. Therefore, the act of the accused under these circumstances cannot 23 Spl CC No.740/2018 be construed as eloping the victim girl from the legal custody of her parents. Even the victim girl after the alleged incident, when she was sent to medical examination she has not given her consent for medical examination. This shows that the victim girl was not interested to undergo any medical examination. Thus, in this regard also, the prosecution has failed to bring home the guilt of the accused that, the accused had subjected the victim girl for aggravated penetrative sexual assault. Even the prosecution has failed to examine the Magistrate before whom the victim girl had given her statement under Sec.164 of Cr.P.C, to bring home the guilt of the accused. Though the evidence of the police officials and the Investigating Officer are corroborative that, the victim girl and the accused were traced out, that the mobile phone was seized from the shop where the accused had sold his old mobile phone and purchased a new mobile phone and that the accused was arrested, and charge-sheet was submitted against the accused for his alleged accusations, but, they do not come to the aid of the prosecution, as because the material witnesses specifically the victim girl has totally turned hostile to the prosecution case and she has not supported the prosecution case. Even the circumstantial witness and mahazar witnesses have also turned hostile to the prosecution case and they have not supported the prosecution case. Under these circumstances I hold that due to lack of evidence against the accused, the accused is entitled for an order of acquittal from the hands of this court. With these observations, I answer Point Nos.1 and 2 in the Negative.
24 Spl CC No.740/201825. POINT NO.3:-:- In view of my findings on Point Nos.1 and 2 above, I proceed to pass the following:
ORDER Acting under Sec.235(1) of Cr.P.C, I hereby acquit the accused of the offences punishable under Sec.363 of IPC and Sec.376 of IPC and Secs. 4 and 6 of POCSO Act, 2012.
The bail bond and surety bond of the accused stands cancelled.
MO-1 is ordered to be confiscated to the State, after appeal period is over.
[Dictated to the Stenographer directly on the computer, corrected carried out and then pronounced by me in the open court on this the 27th day of June, 2019].
[R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
ANNEXURES:
Witnesses examined for the prosecution:
PW.1 Victim girl CW2 19.11.2018
PW.2 Adhithya CW1 19.11.2018
PW.3 Ramanji CW3 19.11.2018
PW.4 Narayanaswami CW8 3.12.2018
PW.5 Srinivasamurthy CW12 13.12.2018
PW.6 Nagaveni CW13 13.12.2018
25 Spl CC No.740/2018
PW.7 Naryanamma CW14 13.12.2018
PW.8 Yashaswini CW15 13.12.2018
PW.9 Dr.Suma CW19 16.3.2019
PW.10 Dr.Shashikala CW18 16.3.2019
PW.11 Dr.Lakshmipathi.S.R. CW21 16.3.2019
PW.12 Prakash.G CW23 9.4.2019
PW.13 Renuka.P CW26 23.4.2019
PW.14 Jayaramu.M.V CW25 1.6.2019
PW.15 K.R.Prasad CW27 12.6.2019
Documents marked for the prosecution:
Ex.P1 Statement of PW1/victim girl given before the
Magistrate under Sec.164 of Cr.P.C
Ex.P1(a) Signature of PW1/victim girl
Ex.P2 Letter dated: 6.8.2018 written by PW1/victim
girl to the Police Inspector of Malleswaram
police station
Ex.P2(a) Signature of PW1/victim girl
Ex.P2(b) Signature of PW13
Ex.P3 Complaint dated: 21.7.2018 lodged by the
complainant/PW2 before the complainant police Ex.P3(a) Signature of PW2 Ex.P3(b) Signature of PW14 Ex.P4 Panchanama Ex.P4(a) Signature of PW2 Ex.P4(b) Signature of PW3 Ex.P5 Copy of Panchanama [consent marked] Ex.P5(a) Signature of PW4 26 Spl CC No.740/2018 Ex.P6 Statement of PW5 given before the complainant police under Sec.161 of Cr.P.C Ex.P7 Statement of PW6 given before the complainant police under Sec.161 of Cr.P.C Ex.P8 Statement of PW7 given before the complainant police under Sec.161 of Cr.P.C Ex.P9 Statement of PW8 given before the complainant police under Sec.161 of Cr.P.C Ex.P10 Statement of PW1/victim girl given before the complainant police under Sec.161 of Cr.P.C Ex.P10(a) Signature of PW1/victim girl Ex.P10(b) Signature of PW13 Ex.P11 Statement of PW2 given before the complainant police under Sec.161 of Cr.P.C Ex.P12 MLC Report of PW1/victim girl Ex.P12(a) Signature of PW9 Ex.P12(b) Signature of PW13 Ex.P13 Letter dated: 18.9.2018 written by PW10 to the Police Inspector of Malleswaram police station, Bangalore regarding not giving consent by PW1/victim girl and her mother for physical examination of PW1/victim girl Ex.P13(a) Signature of PW10 Ex.P13(b) Signature of PW13 Ex.P14 Out patient record of PW1/victim girl regarding not giving consent by PW1/victim girl and her mother for physical examination of PW1/victim girl Ex.P14(a) Signature of PW10 27 Spl CC No.740/2018 Ex.P14(b) Signature of PW13 Ex.P15 Certificate issued by PW11 with regard to the examination of PW1/victim girl [Ex.P15 is issued on the back sheet of Ex.P12] Ex.P15(a) Signature of PW11 Ex.P16 Medical Certificate of the accused [consent marked] Ex.P16(a) Signature of PW13 Ex.P17 Seizure Panchanama Ex.P17(a) Signature of PW12 Ex.P18 Panchanama Ex.P18(a) Signature of PW12 Ex.P19 One photograph Ex.P19(a) Signature of PW13 Ex.P20 Duplicate Bill issued by Naidu Communications, Tirupati.
Ex.P20(a) Signature of PW13 Ex.P21 Official Memorandum Ex.P21(a) Signature of PW12 Ex.P22 Report given by PW12 regarding tracing out the victim girl and the accused and apprehending them and producing them before the PSI of the complainant police station Ex.P22(a) Signature of PW12 Ex.P23 FIR Ex.P23(a) Signature of PW14 28 Spl CC No.740/2018 Material Objects marked for the prosecution:
MO-1 Samsung Mobile Witness examined, documents, MOs marked for the accused: NIL [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.29 Spl CC No.740/2018
27.6.2019 Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(1) of Cr.P.C, I hereby acquit the accused of the offences punishable under Sec.363 of IPC and Sec.376 of IPC and Secs. 4 and 6 of POCSO Act, 2012.
The bail bond and surety bond of the accused stands cancelled.
MO-1 is ordered to be confiscated
to the State, after appeal period is
over.
[R.SHARADA]]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.30 Spl CC No.740/2018