Bangalore District Court
State By Yeshwanthapura Police vs Nos.1 A1: Kiran Naik on 19 November, 2018
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the, 15th day of November, 2018.
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.140/2015
COMPLAINANT: State by Yeshwanthapura Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED NOS.1 A1: Kiran Naik,
Son of Ravi Naik,
AND 2:
Aged 20 years,
Lachappa Colony, 2nd Cross,
B.K. Nagar, Yeshwanthapura,
Bangalore.
A2: Prasad,
Son of Late. Penchalaiah,
Aged 19 years,
Behind LCR School Gate, B.K.Nagar,
Yeshwanthapura,
Bangalore.
[By Advocate Sri. Aswathanarayana
Naik.N]
1. Date of commission of offence 11.11.2014
2. Date of report of occurrence 11.11.2014
of the offence
3. Date of arrest of accused 16.11.2014
Nos. 1 and 2
2 Spl CC No.140/2015
4. Date of release of accused A1 was released on bail on
Nos.1 and 2 [on bail] 15.5.2015.
A2 was released on bail on
11.2.2015. As accused No.2
stood absconded accordingly
warrant issued against him. In
consequence to the warrant, the
police have produced him before
the court on 11.1.2016
accordingly, the accused No.2 is
in the judicial custody since
11.1.2016
5. Period undergone by the A1 was in the judicial custody for
accused in the judicial a period of 5 Months and 29 days.
custody
A2 was in the judicial custody for
a period of 2 months and
23 days. As accused No.2 stood
absconded accordingly warrant
issued against him. In
consequence to the warrant, the
police have produced him before
the court on 11.1.2016
accordingly, the accused No.2 is
in the judicial custody since
11.1.2016
6. Date of commencement of 7.1.2016
evidence
7. Date of closing of evidence 24.9.2018
8. Name of the complainant Smt.Vijaya, complainant as well as
the mother of the victim girl
9. Offences complained of Secs. 363, 366, 366(A), 376 r/w
Sec.34 of IPC and under Sec.3 r/w
Sec.4 of POCSO Act, 2012
10. Opinion of the Judge As per the final orders.
3 Spl CC No.140/2015
JUDGEMENT
The Police Inspector, Yeshwanthapura police station has filed charge-sheet against the accused Nos. 1 and 2 for the offences punishable under Secs. 363, 366, 366(A) and 376 r/w Sec.34 of IPC and under Sec.3 r/w Sec.4 of POCSO Act, 2012.
2. The brief facts of the prosecution case is that, accused Nos. 1 and 2 with a common intention on 11.11.2014 at about 5.30 P.M., kidnapped the victim girl who was aged about 13 years near Oxford School, situated at LCR School Road, Bangalore forcibly in a Tata S vehicle with an intention that the victim girl may be compelled to marry accused No.1 and seduce her to illicit intercourse and accused No.2 has helped accused No.1 to kidnap the victim girl and when accused Nos. 1 and 2 while going near 28 milestone near Raichuti District, Kadapa, Andhrapradesh on 12.11.2014, the vehicle was under repair and accused No.2 had gone to bring the mechanic, at that time, accused No.1 committed rape/penetrative sexual assault on the victim girl in the said vehicle only. Hence, on the basis of the complaint lodged by the complainant/mother of the victim girl, the Investigating Officer has registered a case in Cr.No.449/2014 for the offence punishable under Sec.363 of IPC. Thereafter, the Investigating Officer has secured the victim girl and on the basis of her statement he has inserted Secs. 366, 366(A) and 376 r/w Sec.34 of IPC and under Sec.3 r/w Sec.4 of POCSO Act, 2012.
4 Spl CC No.140/20153. During the course of investigation the Investigating Officer has arrested the accused Nos. 1 and 2 on 16.11.2014 thereby they both were remanded to the judicial custody. Thereafterwards the accused No.1 was released on bail on 15.5.2015 and accused No.2 was released on bail on 11.2.2015. As per the provisions of Sec.207 of Cr.P.C, copies of the charge-sheet were furnished to the accused persons. Accordingly charge is framed, read over and explained to the accused, and they pleaded not guilty, claims to be tried. Accordingly, the trial is fixed, summons issued to the prosecution witnesses. At that stage, accused No.2 failed to appear before the court and stood absconded accordingly non-bailable warrant issued against him. In consequence to the warrant, the police have arrested and produced accused No.2 before the court on 11.1.2016 accordingly, the accused No.2 is in the judicial custody since 11.1.2016.
4. The prosecution has examined in all 20 witnesses as PWs-1 to 20 and got marked 19 documents as per Exs.P1 to P19 besides marking MOs-1 to 5. Thereafter Statement of the accused persons was recorded under Sec.313 of Cr.P.C. The accused have denied all the incriminating evidence told to them, but they have 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 defence. On perusal of the oral and documentary evidence, at this stage, following Points arise for my consideration:
5 Spl CC No.140/20151. Whether the prosecution proves that, on 11.11.2014 at about 5.30 P.M., accused Nos.1 and 2 with a common intention kidnapped the victim girl who was aged about 13 years from Oxford School, situated at LCR School Road, Bangalore in a Tata S vehicle from the lawful guardianship of her parents, without the consent of such guardian, thereby accused Nos. 1 and 2 have committed the offence punishable under Sec.363 of IPC?
2. Whether the prosecution proves that, during the same period, time and place, accused No.1 kidnapped the victim girl who was a minor girl with an intent that she may be compelled to marry accused No.1 against her will or in order to force her or seduce her to illicit intercourse, thereby accused No.1 has committed an offence punishable under Sec.366 of IPC?
3. Whether the prosecution proves that, during the same period, time and place, accused No.2 helped accused No.1 to kidnap the victim girl who was minor with an intent that she may be forced or seduced to illicit intercourse with accused No.1, thereby accused No.2 has committed the offence punishable Sec.366(A) of IPC?
4. Whether the prosecution proves that, accused No.1 during the same period, time and place knowing that the victim girl was minor, kidnapped her from her lawful guardian with the help of accused No.2 in Tata S vehicle, when going near 28 milestone near Raichuti District, Kadapa, Andhrapradesh on 12.11.2014, the vehicle was under repair and accused No.2 had gone to bring the mechanic, at that time, accused No.1 committed rape on the victim girl in the said vehicle only, thereby accused No.1 has committed an offence punishable under Sec.376 of IPC?6 Spl CC No.140/2015
5. Whether the prosecution proves that, accused No.1 during the same period, time and place knowing that the victim girl was minor, kidnapped her from her lawful guardian with the help of accused No.2 in Tata S vehicle, when going near 28 milestone near Raichuti District, Kadapa, Andhrapradesh on 12.11.2014, the vehicle was under repair and accused No.2 had gone to bring the mechanic, at that time, accused No.1 committed penetrative sexual assault on the victim girl in the said vehicle only, without her consent, thereby accused No.1 has committed an offence punishable under Sec.3 r/w Sec.4 of POCSO Act, 2012?
6. What Order?
6. My findings on the above points are as under:
Point No.1: In the Affirmative against accused No.1 Point No.2: In the affirmative Point No.3: In the negative Point No.4: In the affirmative Point No.5: In the affirmative Point No.6: As per the final order, for the following:
REASONS
7. POINT NOS.1 to 5:- As these Points are inter-linked to each other, 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 20 witnesses are examined. Out of them, PWs-1 to 5 are the official witnesses i.e., PW1 is the head mistress of the 7 Spl CC No.140/2015 school in which the victim girl has studied, PW2 is the social worker working with SJPU and recorded the statement of the victim girl, PW3 is the head constable who has deposed before the court about the part of investigation conduced by him, likewise PW4 is the WPC who has deposed about got medically examined the victim girl and receiving of medical report as per Ex.P4 and PW5 is another WPC who had taken the victim girl before the Learned Magistrate for the purpose of recording the statement of the victim girl under Sec.164 of Cr.P.C All these witnesses have supported the case of the prosecution. No doubt the learned counsel for the accused subjected some of these witnesses for cross-examination but failed to contradict their chief evidence. Pw6 is the mother of the victim girl, Pw8 is the victim girl herself, PW9 is the father of the victim girl. Of course they have not supported the case of the prosecution and turned hostile but to certain extent, they have given evidence which goes in corroboration with the evidence of PWs-1 to 5 and other official witnesses. PW7 is the Doctor who has examined the accused no.1 and given Report as per Ex.P5. This witness also supported the case of the prosecution. PW18 is the police of Yeshwanthapura police station who has deposed before the court stating that he had been to Raichooti a place in Andhra Pradesh and deposing about taking the accused No.1 to the place where he kept the victim girl and further deposed about drawing of mahazar and given statement before the Investigating Officer accordingly. PW19 andPW20 are the Investigating Officers who have deposed before the court about their duties discharged and also filing of charge-sheet. All these wtiensses supported the case of the prosecution. Of course, some of the witnesses turned 8 Spl CC No.140/2015 totally hostile to the prosecution but the evidence in these types of cases has to be weighed but not counted. Considering all the materials placed before the court and also taking into consideration the presumption available under Sec.29 of POCSO Act, 2012, the prosecution has successfully proved the guilt of the accused, thereby, 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 material witnesses i.e, the victim girl and her parents totally turned hostile to the prosecution case and they have not supported the case of the prosecution, to link the accused persons to the alleged crime. With these the prosecution failed to prove the guilt of the accused beyond all reasonable doubt, thereby the accused persons are entitled for acquittal. Hence, the learned counsel for the accused prays to acquit the accused persons in the interest of justice and equity.
10. As narrated in brief, law is set into motion by the mother of the victim girl stating that on 11.11.2014, in the evening she has lodged a complaint to the jurisdictional police alleging that, her daughter/victim girl who was minor was missing and thereby, the complainant suspected this accused No.1 in he having had been the reason for missing of the victim girl. The Investigating agency after taking up the investigation located the victim girl and accused No.1 at Baddavelu near Rayachooti, Kadapa District, 9 Spl CC No.140/2015 Andhra Pradesh and after bringing them to Bangalore took up the investigation and filed charge-sheet against both of the accused for the offences mentioned above.
11. In the course of trial of this case, the prosecution has examined as many as 20 witnesses as PWs-1 to 20 and got marked 19 documents as per Exs.P1 to P19. The defence of the accused is nothing but denial of the prosecution case, but, the accused have not led any evidence. Out of 20 witnesses examined by the prosecution, I wish to divide these witnesses into 2 groups for the convenience of understanding the nature of the evidence given by them and reliability of such evidence in order to conclude whether on the basis of such evidence, the accused persons are liable to be convicted or they are entitled for acquittal.
12. PW1 to PW5 are the official witnesses who have spoken to the circumstance after accused No.1 and the victim girl taken to the police custody under the process of investigation. PW7 is the doctor who examined accused No.1 after he was arrested by the police. PWs-18 to 20 are the police officials deposed about part of their investigation. These are witnesses as of the first part.
13. The second part consists of PW6 who is the mother of the victim girl, PW8 is the victim girl herself and PW9 is the father of the victim girl, PWs-10 to 17 are all the relatives of the complainant-PW6. All these witnesses of the second part have turned hostile to the prosecution case. However, certain statements with regard to the incident to had been traced in the 10 Spl CC No.140/2015 evidence of the complainant-PW6, victim girl-PW8 and her father-PW9, whereas the other witnesses of this part is in no way helpful to the prosecution case. Therefore, I do not wish to go to the details of that relative witnesses.
14. After dissecting the role of witnesses into 2 parts, as stated above, I would like to gather or segregate certain statements in the form of their evidence in the witness box, which is linking to this case.
15. Now coming to the evidence of PW6-complainant and mother of the victim girl, though she has turned hostile, this witness in her evidence in chief examination has admitted that, her daughter/victim girl was missing from her house. However has stated as if the victim girl had gone to her senior aunt's house, but continued to say that, she [Pw6] has given complaint to the police as her daughter/victim girl could not be traced out after missing and that accused No.1 who was their neighbour was in talking terms with the victim girl and therefore, she suspected accused No.1 for missing of her daughter/victim girl and accordingly she gave Complaint as per Ex.P6. This witness has further stated that, after 3 days after giving the complaint to the police, the police secured them to the police station along with her husband. There in the police station, they saw their daughter/victim girl and this accused No.1 and accused No.2 as they were shown to them by the police and deposed to had identified them. She [PW6] has further stated to the question put by the learned Public Prosecutor that she do not remember whether 11 Spl CC No.140/2015 she had gone to the Hospital for medical examination of her daughter/victim girl on the same day. This witness on seeing the Medical Certificate shown to her has identified the Medical Certificate as pertaining to her daughter/victim girl as per Ex.P4 and also her signature as per Ex.P4(b).
16. PW8 is the victim girl in the witness box has identified accused No.1 after he was shown to her and the Presiding Judge has recorded that the victim girl after seeing accused No.1 started weeping. She has also further admitted that, on 6.2.2014, accused No.1 went to their house and gave a proposal to marry her [victim girl] and also suggested that he will speak to her parents for which this witness said to had told him to give her some time, but, stated that, accused No.1 thereafter did not disturb her. The victim girl [PW8] in her evidence admitted to had given statement to the complainant police and also given statement before few other persons, but, stated that she do not know who they are. She elaborated that, she was sent to the hospital along with the lady police official and she was subjected to medical examination by a doctor in M.S.Ramaiah Hospital, thereafter, she was taken back to the police station and sent her back to home. She also further stated that, she was taken before the Learned Magistrate before whom she also given a statement and when that statement recorded under Sec.164 of Cr.P.C was shown to her, she has disputed her signature and thereafter denied all the suggestions of the learned Public Prosecutor made to implicate accused No.1 to crime, but, however, in the cross-examination by the learned Public Prosecutor after considering her as hostile, she admitted that, the 12 Spl CC No.140/2015 Judge who recorded her statement, put certain questions to her and the Judge before recording her statement told her that, without carrying any pressure or influence, she should give statement and denied stating that, she do not know whether the Judge recorded her statement as given by her. The Statement recorded under Sec.164 of Cr.P.C is marked as Ex.P11 and her signature is at Ex.P11(a).
17. Now coming to the evidence of the father of the victim girl-PW9 he has by denying the prosecution case in the cross- examination by the learned Public Prosecutor he has admitted to have decided to give his daughter/victim girl in marriage with accused No.1 after the victim girl attains the age of 18 years. With these admissions of these 3 material witnesses, I wish to go to the evidence of PWs-1 to 5.
18. PW1 is the Head Mistress of the school where the victim girl/PW8 was studying and this witness has only stated that, in the year 2014, the victim girl was studying in 8th standard and her date of birth as found is 5.10.2001 in the school records and given Certificate as per Ex.P1.
19. PW2 is the Co-ordinator of SJPU has stated that on 16.11.2014, the PSI of Yeshwanthapura Police station called her to the police station to record the statement of the victim girl/PW8, where this witness stated to had enquired the victim girl/PW8 and recorded the statement of the victim girl/Pw8 on Laptop with the assistance of PW4. PW2 in her evidence before the court has 13 Spl CC No.140/2015 stated that, the victim girl/PW8 narrated before her stating that on 11.11.2014 when she went out of the house to bring some vegetables, she saw that accused No.1 standing near Oxford school with Tata S vehicle and after meeting her, he told her that, he [accused No.1] despite telling her that, he wants to talk to her regarding his marriage proposal with her, she had not responded and he [accused No.1] by telling so, took her [victim girl/Pw8] in his vehicle telling that, they will go around in that vehicle to talk about their marriage proposal and after taking some round around Bangalore city, when accused No.1 proceeded towards Hebbal, victim girl/PW8 said to had told accused No.1 that her mother is waiting for her and there is any delay in she reaching home, her mother will scold her, but, accused No.1 without heeding to the request of the victim girl/PW8 took her towards Hosakote and after the vehicle crossed Hosakote, the vehicle developed certain defects and stopped, then it was 10 P.M. Then accused No.1 telephoned to his friend accused No.2 to come to the spot who repaired the vehicle and thereafter taking food, proceeded towards Madanapalli. There also the vehicle went out of order and when accused No.2 went to secure a mechanic, this accused No.1 committed penetrative sexual assault on the victim girl in the body of the vehicle and after the vehicle was got repaired, the victim girl was taken by accused No.1 towards Raichut and when the vehicle again developed defect, they stopped the vehicle near at a place of Raichut, then the police went there and took them to their custody.
14 Spl CC No.140/201520. PW4 is a lady police official deposed that on instructions of her higher officers, she typed the statement of the victim girl as elicited by PW2 in a computer.
21. PW3 is a police official deposed that on 14.11.2014, he was along with another official were deputed to trace out the victim girl and accused No.1 and on suspicious information they got on the basis of the call details of accused No.1, they found mobile calls of accused No.1 was pointing to Madanapalli area and they traced the accused No.1 at Baddavelu, took the custody of accused No.1 and accused No.2 and brought them along with the victim girl on 16.11.2014 to Bengaluru and produced before the Investigating Officer of the complainant police station. This witness further stated that on 17.11.2014, he participated in drawing spot mahazar seizing the vehicle of accused No.1 used for commission of crime under Mahazar Ex.P2.
22. PW5 is another lady police official deposed that, on 17.11.2014, on order of the Police Inspector, she took the victim girl/PW8 to the CMM Court and gave a requisition for recording the statement of the victim girl under Sec.164 of Cr.P.C and stated that after getting the statement recorded, she brought back the victim girl to the police station.
23. Now having referred above the brief material evidence of PWs-1 to 5, I shall now come to the part of the cross- examination done by the learned defence counsel. In the cross- examination of PW1, except the learned defence counsel 15 Spl CC No.140/2015 suggesting that PW1 was not taking class of PW8/victim girl, he has not denied the genuineness of the school certificate which is marked as Ex.P1 to dispute the age of the victim girl.
24. Coming to the cross-examination of PW2, suggestions of the learned defence counsel that, this witness was not knowing the victim girl she has admitted and stated that, she only came to know the victim girl when she [victim girl] gave her statement on 16.11.2014 and further to the suggestion of learned defence counsel, except that, she [Pw2] recorded the statement of the victim girl as given by her, she do not know the other matters of the victim girl. Therefore, the evidence of PW2 that the victim girl/Pw8 narrated her history of the incident and she recorded accordingly has not at all been questioned and disputed. On the contrary, this witness proved to have recorded what was given to her by the victim girl and spoken to in the witness box. Therefore, I do not find any cross-examination with regard to the history revealed by the victim girl to this witness and this witness having so deposed in the witness box.
25. PW4 though subjected to cross-examination, nothing is elicited to discredit her and to the suggestions of the learned defence counsel that, she has discharged her duty as entrusted by her senior. This witness has admitted in the 'Affirmative'. Similarly, the evidence of PW4 that she also taken the victim girl/PW8 to the hospital and got her medically examined and obtained the medical report of the victim girl, has got the Medical report marked as Ex.P4. Therefore, the evidence of PW4 that on 16 Spl CC No.140/2015 the same day after securing the victim girl and arresting accused Nos. 1 and 2 on 16.11.2014 and subjected the victim girl to medical test, is not at all questioned in the cross-examination. So also, the medical examination report of the victim girl as per Ex.P4 has not at all been questioned and denied.
26. Then the evidence of PW3 that he along with another official apprehended accused Nos. 1 and 2 and brought the victim girl to Bangalore and they were produced before the Investigating Officer has not been contraverted in the cross-examination. On the other hand the learned defence counsel has suggested to PW3 as if that accused Nos. 1 and 2 after coming to know of police complaint given in this regard, themselves brought the victim girl to the police station in their vehicle. It is at that time, these police people created the documents has been denied by this witness by reiterating that it is they who brought the accused Nos. 1 and 2 and the victim girl to the police station from Andhra Pradesh. This suggestion of the learned defence counsel itself suggests that, accused Nos. 1 and 2 had taken the victim girl with them in their vehicle and they themselves coming to know about the police complaint filed as if surrendered in the police station, which goes unsayingly that accused Nos. 1 and 2 had taken the victim girl with them in the seized vehicle.
27. The prosecution has not examined the lady medical officer, who had physically examined the victim girl/Pw8 on 16.11.2014 on the date when she was brought from Andhra Pradesh, on the ground that, the lady medical officer could not be 17 Spl CC No.140/2015 traced. However, the prosecution has got marked the Medical Certificate of the victim girl as per Ex.P4 through PW4 and the Investigating Officer-Pw20. On seeing the Medical Certificate- Ex.P4, it discloses that, the victim girl/Pw8 was used to an act like that of sexual intercourse and her hymen had teared. However, there is noting that, there is no evidence of recent sexual intercourse. That means, the victim girl/PW8 was subjected to penetrative sexual assault. Even here also, the learned defence counsel has not made any attempts to raise his voice regarding the correctness of the Medical Report of the victim girl/PW8 and the particulars recorded in Ex.P4 either in the cross-examination of PW4 or in the cross-examination of PW20. The learned defence counsel has also not challenged the prosecution evidence that the victim girl having had subjected to medical test. Therefore, the evidence of the prosecution that the victim girl was brought to Bangalore particularly in the company of accused No.2 without any loss of time, she was subjected to medical test and found that she was subjected to penetrative sexual assault and it remained unchallenged. At this stage, I refer to the evidence of PW6- mother of the victim girl who has also admitted to had gone to the police station after 3 days after giving the complaint, there she saw the victim girl and accused Nos. 1 and 2 in the police station and she found to had accompanied her daughter/victim girl to the hospital for medical examination and PW6 has identified her signature in Ex.P4 as Ex.P4(b). With this, the evidence of PWs-2, 3 and 4 remained unchallenged.
18 Spl CC No.140/201528. Coming to the prosecution case that they got the statement of the victim girl recorded under Sec.164 of Cr.P.C PW5 has stated to had taken the victim girl and got recorded her statement through JMFC. PW8/victim girl also admitted to had given the statement before the JMFC, but, she [Pw8/victim girl] has stated that her signature found in Ex.P11 is not her signature, but, she admitted that, she was told by the JMFC to give statement without any fear or pressure and accordingly, she [PW8/victim girl] has stated before the JMFC. This statement of the victim girl given under Sec.164 of Cr.P.C is marked as Ex.P11. PW8 also in her evidence admitted that she was subjected to medical test through PW4 and she has not raised any grievance against the medical test nor denied the result of the medical test. Ex.P11-Statement recorded by the JMFC under Sec.164 of Cr.P.C clearly reveals the history of the victim girl in corroboration with the statement she has given before the complainant police upon to until she was taken towards Hosakote by accused No.1 and further stated that, when they reached Hosakote, accused No.1 secured accused No.2 and they she was taken towards Madanapalli and while they were roaming in that area, the police went and caught them and stated that accused No.1 while they were near Madanapalli, accused No.1 against her [victim girl] will committed penetrative sexual assault on her. This statement of the victim girl recorded by the JMFC under Sec.164 of Cr.P.C goes in corroboration with the statement recorded by and spoken to PW2 and got support of the medical report of the victim girl-Ex.P4.
19 Spl CC No.140/201529. Further, learned defence counsel has not at all questioned PWs-6 and 8 with regard to certain statements that were made in the witness box with regard to accused No.1 invading in the personal life of the victim girl/PW8. Besides this, even the learned defence counsel in the cross-examination of PW3 suggested as if Accused Nos.1 and 2 after coming to know of the complaint filed by PW6, as per Ex.P6, they themselves brought the victim girl to the complainant-Yeshwanthapura police station.
30. Coming to the evidence of PWs-19 and 20, who are the police officers. Among them, Pw19 deposed to have taken accused No.1 on 17.11.2014 to the place of occurrence as pointed out by accused No.1, seized the vehicle under Mahazar-Ex.P3 and this witness [PW19] has stated that, accused No.1 got the vehicle used for the crime released to his custody. Further in the cross-examination of this witness [PW19] the learned defence counsel made suggestion stating as if accused No.1 had taken the victim girl/Pw8 to a temple, for this, this witness stated to have no knowledge. This suggestion clearly and impliedly proves and goes in support of the prosecution case that accused No.1 had eloped PW8 a minor victim girl who was aged about 13 years old as on 11.11.2014 and she was located by the police at Andhra Pradesh and she was brought back to Bengaluru on 16.11.2014 and subjected to medical test she was sexually assaulted. Accused No.1 was even subjected to medical test through PW7, who has opined that, accused No.1 is fit for sexual action. PW20 the Investigating Officer has deposed to the investigation done and 20 Spl CC No.140/2015 further speaking to securing of many documents particularly Exs.P4 and P11 and has spoken to submission of the charge-sheet.
31. Further the evidence of PWs-8 and 9 as in the cross-examination stated that, they have thought of conducting the marriage of the victim girl/PW8 with accused No.1 and therefore, it appears that, there is collusion and conspiracy between accused No.1 a major contributer with the parents of the victim girl somehow to get away from the clutches of law and it is because of that, connivance by accused No.1, the victim girl and her parents and all other relatives have not come openly to support the prosecution case, but, the law has its own course to deal with the situation. This court has found that there is abundant evidence to prove that accused No.1 had eloped the victim girl/Pw8 on 11.11.2014, took around Bangalore and around Madanapalli, Raichoot of Andhra Pradesh and had committed penetrative sexual assault against the will of the victim girl and they were caught by the police and tagged on to the scope of law that this accused No.1 has even got released his vehicle used for the crime.
32. As referred to above, the suggestions made by the learned counsel for the accused in the cross-examination of these 2 prosecution witnesses [PWs-8 and 9] suggested that accused No.1 had taken the victim girl to a temple. In the cross- examination, of another witness [PW4] it is suggested that accused No.1 after coming to know the police complaint, given against him, brought the victim girl to Yeshwanthpura police station and they themselves had voluntarily came to the police station and the 21 Spl CC No.140/2015 police did not bring them from Andhra Pradesh, which means it is the case of accused No.1 that, he had taken the victim girl with him to a temple and brought her back and produced before the police which unerringly proves the admission of accused No.1 that he had taken the victim girl from the custody of her parents on 11.11.2014 and when the complaint was filed to the police on the same day the accused No.1 after coming to the knowledge this, he brought the victim girl to the police station of Yeshwanthapura police which by itself establishes the guilt of accused No.1 and nothing remains to be placed before the court to connect accused No.1 to the crime, but even then there is evidence of PWs-2 to 4 that statement given under Sec.164 of Cr.P.C supports the prosecution case to implicate accused No.1 with this affirmative evidence, the presumption under Sec.29 of POCSO Act, 2012 comes into operation calling the accused No.1 to prove that, he is innocent of the alleged offence but, he has not at all made any attempt to rebut the presumption arising under that section. At this stage, I would also find relevant to refer to the statement given by the victim girl under Sec.164 of Cr.P.C which speaks that, between 11.11.2014 to 16.11.2014, the accused No.1 committed the penetrative sexual assault on her. With this, I conclude that the prosecution has proved the guilt of accused No.1 beyond all reasonable doubts.
33. It is found that unfortunate accused No.2 has been imaginarily without evidence is implicated in this case by the Investigating Officer without applying his mind to the investigating papers and made accused No.2 to behind the bars during the 22 Spl CC No.140/2015 period i.e., from 16.11.2014 to 11.2.2015 and right from the date i.e. 11.1.2016 till this date. As scanned from the investigating papers and evidence on record, accused No.2 was not at all in picture when accused No.1 and the victim girl first met, and accused No.1 took the victim girl in his vehicle towards Hosakote. It is only when the vehicle went out of order at about 10.00 P.M., accused No.1 secured accused No.2 to help him in getting the vehicle repaired. Accused No.2 without any knowledge of the kidnap or intention of accused No.1 helped accused No.1 in repairing the vehicle and it appears that accused No.2 had gone with accused No.1 and the victim girl to Madanapalli where again the vehicle went out of order and when accused No.2 went in search of a mechanic and in his absence, accused No.1 committed penetrative sexual assault on the victim girl in the body of the said vehicle. Even PW8/victim girl stated that, accused No.2 advised accused No.1 to send the victim girl back by further advising accused No.1. Except this allegation, no other allegations are made against accused No.2 in he having had taken any role in the crime with the knowledge and intention. Therefore, accused No.2 against whom there is no evidence absolutely, is entitled for acquittal from the alleged offences.
34. As per the discussions made herein above, and under the circumstances of the case, accused No.1 has failed to discharge the burden casted on him under Sec.29 of POCSO Act, 2012, which speaks of presumption of certain offences. Accordingly, accused No.1 who is prosecuted and against whom there is evidence in he having had committed the offence against him and therefore, the 23 Spl CC No.140/2015 court has no option but to believe the evidence as referred to above and presume that, accused No.1 has committed the said offences and he having not proved the contrary and he is liable to be convicted for the above said offences. In the present case, accused No.1 is charged for the offences punishable under Secs. 363, 366, 366(A), 376 r/w Sec.34 of IPC and under Sec.3 r/w Sec.4 of POCSO Act, 2012 by my learned predecessor. But on finding the evidence on record and the overt-acts committed by accused No.1, I find that, the accused No.1 is liable to be convicted for the offences punishable under Sec. 366 of IPC, therefore, the minor offence that the accused No.1 is charged under Sec.363 of IPC do not attract for imposing punishment. Similarly, accused No.1 has been charged for the offences under Sec.366(A) of IPC, also not attracted. Under these circumstances of the case, I hold the accused No.1 is acquitted for the offences punishable under Sec.366(A) of IPC and further I found that the accused No.1 is guilty of the offences punishable under Sec.366 and 376 of IPC and under Sec.3, 4 of POCSO Act, 2012. In support of my appreciation of evidence of the prosecution, and findings given I rely upon the Judgment of the Hon'ble Apex Court in Criminal Appeal No.913/2016 between Hemudan Nanbha Gadhvi Vs. State of Gujarat dated: 28.9.2018, which is aptly applicable to the case on hand. With these observations, I answer Point No.1 in the Affirmative against accused No.1, Point No.2 in the Affirmative, Point No.3 in the Negative, Point No.4 in the Affirmative, Point No.5 in the Affirmative.
24 Spl CC No.140/201535. POINT NO.6:-In view of the above discussions on Point Nos. 1 to 5, I proceed to pass the following:
ORDER Acting under Sec.235(2) of Cr.P.C, I hereby convict accused No.1 for the offences punishable under Secs. 366 and 376 of IPC and under Secs.3 and 4 of POCSO Act, 2012.
Further, I hereby acquit Accused No.1 for the offence punishable under Sec.366(A) of IPC only.
Further, Acting under Sec.235(1) of Cr.P.C, I hereby acquit accused No.2 of the offences punishable under Secs.363, 366, 366(A) and 376 r/w Sec.34 of IPC and under Sec.3 r/w Sec.4 of POCSO Act, 2012.
The bail bond and surety bond of accused No.1 stand cancelled.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 15th day of November, 2018] [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.25 Spl CC No.140/2015
19.11.2018 ORDER ON SENTENCE AGAINST ACCUSED NO.1 The learned counsel for the accused No.1 is present, Incharge Public Prosecutor is not present before the court. Heard accused No.1 regarding sentence to be imposed against him.
Accused No.1 has been held guilty of the offences punishable under Secs. 366 and 376 of IPC and under Secs.3 and 4 of POCSO Act, 2012.
The amended Section to 376(c)(3) of IPC of Criminal Law (Amendment) Act, 2018, states as follows:
"Whoever commits rape on a women under 16 years of age, shall be punished with rigorous imprisonment for a term which shall not less than 20 years, but, which may extend to imprisonment for life, it shall mean imprisonment for the remainder of that person's natural life and shall also liable to fine".
In the case on hand, the victim girl was 14 years old as on the date of the offence.
The learned counsel for the accused No.1 submitted that, the accused No.1 has spent 5 Months and 29 days in the judicial custody and he is still at young age i.e, 21 years; he is the only bread earner of his family and he has to take care of his old aged parents, thereby, submitted for leniency in imposing the sentence.
26 Spl CC No.140/2015On perusal of the records, it appears that, the accused No.1 has spent more than 5 months in judicial custody and he is in the age of 20's. But only on these grounds, the submission made by the learned counsel for the accused No.1 cannot be accepted. However considering his future prospectus and also family responsibilities that he has to take care of his parents, I feel just to impose minimum sentence of 20 years of rigorous imprisonment with small amount of fine, which would meet the ends of justice. With these observations, I proceed to pass the following:
SENTENCE
(a) I hereby sentence Accused No.1 to undergo Simple Imprisonment for a period of One year and he shall also pay fine of Rs.1,000/- for the offence punishable under Sec.366 of IPC. In default of payment of fine amount, accused No.1 shall undergo simple imprisonment for a further period of 2 Months.
(b) Further, I herby sentence accused No.1 to undergo Rigorous Imprisonment for a period of 20 Years and he shall also pay fine of Rs.10,000/- for the offences punishable under Sec.4 of POCSO Act, 2012 r/w Sec.376 of IPC. In default of payment of fine amount, accused No.1 shall undergo simple imprisonment for a further period of 3 Months.
Both (a) and (b) sentences shall run concurrently.
Acting under Sec.428 of Cr.P.C, the period of detention undergone by the accused No.1 is set-off against the sentence of imprisonment imposed.
MOs-1 to 5 being worthless are ordered to be destroyed after the appeal period is over.
27 Spl CC No.140/2015Copy of this Judgement shall be given to the accused No.1 free of cost forthwith.
[Sentence Dictated to the Stenographer directly on the computer, corrections carried out and then pronounced by me in the open court on this the, 19th day of November, 2018] [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 Arunakumari CW16 7.1.2016
PW.2 Arogya Mari CW15 7.1.2016
PW.3 Nataraja.B.N CW18 7.1.2016
PW.4 Tara CW23 7.1.2016
PW.5 Sowbhagya CW27 7.1.2016
PW.6 Vijaya CW1 8.2.2016
PW.7 Dr.Praveen.S CW14 8.2.2017
PW.8 Victim girl CW2 3.2.2018
PW.9 Raja CW7 18.6.2018
PW.10 Vikky CW12 17.7.2018
PW.11 Vignesh CW11 17.7.2018
PW.12 Vivek CW3 17.7.2018
PW.13 Sundar CW8 17.7.2018
PW.14 Smt.Indira CW9 17.7.2018
28 Spl CC No.140/2015
PW.15 Raju CW4 17.7.2018
PW.16 Lohith Kumar CW5 17.7.2018
PW.17 Madhusudhan CW6 17.7.2018
PW.18 N.K.Shivakumar CW29 6.8.2018
PW.19 Venkatesh CW28 14.8.2018
PW.20 Krishna CW31 24.9.2018
Documents marked for the prosecution:
Ex.P1 Study certificate issued by the Head Mistress,
Rajarajeshwari English Medium High School, Yeshwanthapura, Bangalore wherein the victim girl was studying certifying the date of birth of the victim girl as 5.10.2001 Ex.P1(a) Signature of PW1 Ex.P1(b) Signature of PW20 Ex.P2 Spot mahazar of the alleged incident Ex.P2(a) Signature of PW3 Ex.P2(b) Signature of PW16 Ex.P2(c) Signature of PW17 Ex.P2(d) Signature of PW19 Ex.P3 Photo of the vehicle Ex.P3(a) Signature of PW20 Ex.P4 Medical report of the victim girl Ex.P4(a) Signature of PW4 Ex.P4(b) Signature of PW6 Ex.P4(c) Signature of PW20 Ex.P5 Medical report of accused No.1 Ex.P5(a) Signature of PW7 Ex.P5(b) Signature of Pw20 29 Spl CC No.140/2015 Ex.P6 Complaint lodged by PW6/complainant/mother of the victim girl dated: 11.11.2014 Ex.P6(a) Signature of Pw6 Ex.P7 Panchanama Ex.P7(a) Signature of Pw6 Ex.P7(b) Signature of PW12 Ex.P8 Statement of PW6 given before the complainant police under Sec.161 of Cr.P.C Ex.P9 Signature of PW8/victim girl on a blank white paper Ex.P10 Statement of PW8/victim girl given before the SJPU Ex.P11 Statement of PW8/victim girl recorded under Sec.164 of Cr.P.C by the Learned Magistrate Ex.P12 Statement of PW9 given before the complainant police under Sec.161 of Cr.P.C Ex.P13 Statement of PW10 given before the complainant police under Sec.161 of Cr.P.C Ex.P14 Statement of PW11 given before the complainant police under Sec.161 of Cr.P.C Ex.P15 Statement of PW12 given before the complainant police under Sec.161 of Cr.P.C Ex.P16 Statement of PW13 given before the complainant police under Sec.161 of Cr.P.C Ex.P17 Statement of PW14 given before the complainant police under Sec.161 of Cr.P.C Ex.P18 Voluntary statement of accused No.1 30 Spl CC No.140/2015 Ex.P18(a) Signature of PW20 Ex.P19 Voluntary Statement of accused No.2 Ex.P19(a) Signature of PW20 Material Objects marked for the prosecution:
MO-1 Red brown and white colour full sleeve shirt MO-2 White colour sando Banian MO-3 Brown colour Underwear of accused No.1 MO-4 Blue colour Jeans pant MO-5 Vacutainer [blood] Witness examined, documents and MOs marked for the accused: NIL [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.31 Spl CC No.140/2015
15.11.18 Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(2) of Cr.P.C, I hereby convict accused No.1 for the offences punishable under Secs. 366 and 376 of IPC and under Secs.3 and 4 of POCSO Act, 2012.
Further, I hereby acquit Accused No.1 for the offence punishable under Sec.366(A) of IPC only.
Further, Acting under Sec.235(1) of Cr.P.C, I hereby acquit accused No.2 of the offences punishable under Secs.363, 366, 366(A) and 376 r/w Sec.34 of IPC and under Sec.3 r/w Sec.4 of POCSO Act, 2012.
The bail bond and surety bond of accused No.1 stand cancelled.
[R.SHARADA]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
32 Spl CC No.140/201519.11.2018 Sentence pronounced in the open court:
[Vide separate detailed Sentence]
(a) I hereby sentence Accused No.1 to undergo Simple Imprisonment for a period of One year and he shall also pay fine of Rs.1,000/- for the offence punishable under Sec.366 of IPC. In default of payment of fine amount, accused No.1 shall undergo simple imprisonment for a further period of 2 Months.
(b) Further, I herby sentence accused No.1 to undergo Rigorous Imprisonment for a period of 20 Years and he shall also pay fine of Rs.10,000/- for the offences punishable under Sec.4 of POCSO Act, 2012 r/w Sec.376 of IPC. In default of payment of fine amount, accused No.1 shall undergo simple imprisonment for a further period of 3 Months.
Both (a) and (b) sentences shall run
concurrently.
Acting under Sec.428 of Cr.P.C, the period of detention undergone by the accused No.1 is set-off against the sentence of imprisonment imposed.
MOs-1 to 5 being worthless are ordered to be destroyed after the appeal period is over.
Copy of this Judgement shall be given to the accused No.1 free of cost forthwith.
R.SHARADA]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
33 Spl CC No.140/2015 34 Spl CC No.140/2015