Bangalore District Court
State By Kengeri Police vs Imran Pasha on 7 October, 2020
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the, 7 th day of , October, 2020.
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.890/2019
COMPLAINANT: State by Kengeri Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Imran Pasha,
Son of Mohammed Yousuff,
Aged 26 years,
Residing at Firdush's Rented House,
Central Jail Road, Meenakshi Layout,
Kasavanahalli, Bangalore.
[By Advocate Sri.M.N.Krishna ]
1. Date of commission of offence From 2.1.2019 to 2.2.2019
2. Date of report of occurrence 19.5.2019
of the offence
3. Date of arrest of accused 20.5.2019, since the date of his arrest ie.,
from 20.5.2019 till date, the accused is in
the judicial custody.
4. Date of commencement of 6.11.2019
evidence
5. Date of closing of evidence 3.10.2020
6. Name of the complainant Smt.Kauser, complainant as well as the mother of the
victim girl
2 Spl CC No.890/2019
7. Offences complained of Sec.376 of IPC and Secs. 4, 5(l), 6 of
[As per charge-sheet] POCSO Act 2012
8. Opinion of the Judge The accused is acquitted.
JUDGEMENT
The Police Inspector, Kengeri police station has filed charge-sheet against the accused for the offences punishable under Sec.376 of IPC and Secs. 4, 5(l), 6 of POCSO Act 2012.
2. The brief facts of the prosecution case is that, the mother of the victim girl who is none other than the complainant of this case had lodged a complaint before the complainant police stating that, her daughter/ victim girl who was aged 17 years was residing with her and the victim girl is her 3 rd daughter. The complainant has given her 1st daughter in marriage to one Mushraff and she has given her 2 nd daughter in marriage to this accused and this accused is the 2 nd son-in-law of the complainant. During the month of December-2018, when the complainant and her 2nd daughter and herself went out the house, at that time this victim girl was alone in the house and this accused committed rape on her and also threatened her that if she discloses the said incident to anyone, he will leave off her sister, so, the victim girl had not disclosed the said incident to anyone. Again the accused came to the house of the complainant and committed rape on her daughter/ victim girl. The complainant changed her house from Arundhati Nagar to Vinayak Nagar and when the victim girl was 3 Spl CC No.890/2019 sitting alone by thinking something, at that time, the complainant enquired with her and the victim girl told that this accused has committed rape/ aggravated penetrative sexual assault on her despite her protest. Thereby, the complainant has requested to take action against the accused. On the basis of the said complaint, the complainant police have registered a case in Cr.No.132/2019 for the offences punishable under Sec.376 of IPC and Secs. 4, 5(l), 6 of POCSO Act 2012 and commenced investigation. During the course of investigation, the Investigating Officer has recorded the statement of the victim girl and on that basis he has arrested the accused on 20.5.2019, taken him to remand and remanded the accused to the judicial custody and further continued with the investigation, by recording the statements of the witnesses and finally the Investigating Officer has submitted charge-sheet against the accused which is numbered as Spl CC No.890/2019. Since the date of his arrest ie., from 20.5.2019 till date, the accused is in the judicial custody.
3. 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 Spl CC No.890/20194. The prosecution has examined 8 witnesses as PWs-1 to 8 and got marked 11 documents as Exs.P1 to P11. As per Sec.33(2) of POCSO Act 2012, the evidence of the victim girl has been recorded in the presence of her mother. 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/ victim girl aged 17 years being the daughter of CW1, the accused being the brother-in-law of the victim girl during the month of January-2019, came to the house of CW1 and at that time, CW2 was alone in her house, despite knowing that CW2 was a minor girl, the accused touched her body, gagged her mouth and took her to the room and committed rape on her forcibly and also threatened her that if she discloses the said incident to anyone, he will leave off her sister. Again during the year February-2019, when CW2/ victim girl was alone in her house the accused came to her house and by threatening her that he will leave-off her sister, committed rape/ aggravated penetrative sexual assault on the victim girl, thereby the accused has committed an offence punishable under Sec. 376 of IPC and Sec.6 of POCSO Act 2012
2. What Order?5 Spl CC No.890/2019
6. My findings on the above points are as under:
Point No.1 : In the Negative, Point No .2: As per the final order, for the following:
REASONS
7. POINT NO.1 :- During the course of arguments, the learned Public Prosecutor has submitted that in order to prove the prosecution case totally 8 witnesses are examined as PWs-1 to 8 and 11 documents are marked as Exs.P1 to 11. Though the victim girl and her mother have not supported the case of the prosecution but the 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 police officials have totally supported the case of the prosecution the complainant approached the police with a complaint, 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. Even the doctor who has conducted physical examination of the victim girl has supported the case of the prosecution that the victim girl was subjected to sexual assault by the accused. The evidence of prosecution witnesses 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 6 Spl CC No.890/2019 reasonable doubts and the accused has to be convicted and he prays to convict the accused in the interest of justice and equity.
8. 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 mother and the other material witnesses have totally turned hostile to the prosecution case when they were subjected to 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 Lady Doctor who physically examined the victim girl and the evidence of the police officials the court cannot convict the accused for the offences as alleged. Hence, the learned counsel for the accused prays to acquit the accused in the interest of justice and equity.
9. 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 8 witnesses, out of them, PW1 /CW2 is the victim girl, PW2/CW1 is the mother of the victim girl, PW3/CW3 is the witness to the spot Mahzar as per Ex.P2. PW4/CW4 is also one of the witness to the spot Mahzar as per Ex.P2. PW5/CW14 is the Police Inspector who has deposed about conducting of preliminary investigation of this case. PW6/CW5 is the Lady doctor who has examined the victim girl.
7 Spl CC No.890/2019PW7/CW15 is the Final Investigating Officer of this case and PW8/CW7 is the Woman PSI who has deposed about recording the statement of the victim girl . In support of its case, the prosecution has also produced the following documents: Ex.P1 is the statement of the victim girl given to the complainant police under Sec.161 of Cr.P.C. Ex.P2 is Panchanama. Ex.P3 is the statement of the victim girl given before the Learned Magistrate under Sec.164 of Cr.P.C. Ex.P4 is the Complaint. Ex.P5 is the Requisition. Ex.P6 is the Acknowledgement issued by FSL, Madiwala, Bengaluru . Ex.P7 is the Report. Ex.P8 is also the Report Ex.P9 is also the Report. Ex.P10 is the Medical Report of the victim girl and Ex.P11 is the FIR.
10. Now coming to the evaluation of the evidence given by the above prosecution witnesses , I would like to take up firstly the evidence given by the victim girl who is examined as PW1 before this court. PW1 in her evidence has deposed that, CW1 is her mother. She knows the accused and she has identified the accused in the accused platform located in the court hall as the accused is her brother-in-law and he is the husband of her elder sister. She has further deposed that, her elder sister and the accused were quarreling, so, her mother went to the police station at that time, she has also gone to the police station and there the police had asked her to sign and she signed. She has not stated anything about this case. When her statement under Sec.161 of Cr.P.C was confronted to her she has identified her signature on it. The said Statement is as per Ex.P1 and her signature is as per Ex.P1(a).
8 Spl CC No.890/2019The Mahazar is as per Ex.P2 and her signature is as per Ex.P2(a). The Statement given by her before the Learned Magistrate is as per Ex.P3 and her signature is as per Ex.P3(a). She has further deposed that as per the say of the police, she has given her statement before the Learned Magistrate. She do not know the contents of Exs.P1 and P2. She has studied upto 10 th standard. The accused has not caused any trouble to her. The learned Public Prosecutor treated this witness as hostile and subjected her to cross-examination. In her cross-examination, she has admitted that, when she gave the statement before the police she has stated that, the accused was given in marriage with her 2 nd sister . But she has denied that, the accused has committed rape/ aggravated penetrative sexual assault on her . She has further denied all the suggestions put to her and finally she denied that, she knows all the things, but in order to help the accused, she is deposing falsely before the court. This witness was cross-examined by the learned counsel for the accused. In her cross-examination, she has admitted that, she has put her signatures on Ex.P1 and Ex.P2 in the police station. She has also admitted that, she do not know the contents of Ex.P1 and Ex.P2.
11. PW2 is the complainant as well as the mother of the victim girl. In her evidence before the court, she has deposed that, CW2 is her younger daughter and she is aged 17 years. The accused is her son-in-law ie., the husband of her elder daughter. She had lodged a complaint about one year back to the date of giving her evidence on the ground that the accused and her elder 9 Spl CC No.890/2019 brother were quarelling with each other and she has not made any allegations against the accused. The said complaint is as per Ex.P4 and her signature on it is as per Ex.P4(a). She has not stated anything against this accused. The learned Public Prosecutor treated this witness as hostile and subjected her to cross-examination. In her cross-examination, she has denied that, the accused committed rape/ aggravated penetrative sexual assault on her daughter/ victim girl. She as also denied that, she is deposing falsely before this court, as the accused is her son-in-law and she has compromised with him.
12. PW3 and PW4 are the witnesses to the Mahazar-Ex.P2. In their evidence before the court, when Ex.P2-Mahazar was confronted to them, they have identified their signatures on it as per Ex.P2(b) and Ex.P2(c) respectively. About one year back to the date of giving their evidence before the court, they have put their signatures. They do not know anything about this case. The learned Public Prosecutor treated these 2 witnesses as hostile and subjected them to cross-examination. In their cross-examination, they have denied that, on 20.5.2019, the police have drawn Mahazar as per Ex.P2 near the house bearing No.157 ie., the house of CW2. They have also denied that, after knowing the contents of Ex.P2, they have put their signatures. They have also denied that, they are deposing falsely before this court.
10 Spl CC No.890/201913. Now coming to the evidence given by the Medical Officer, PW6 is the Lady Doctor who has examined the victim girl. In her evidence before the court, she has deposed that, on 20.5.2019 at 12.00 P.M., she has examined the victim girl brought by Kengeri police with the history of sexual assault by this accused. The age of the victim girl was 17 years of age at the time of her medical examination. She has taken the consent of the mother of the victim girl and the victim girl for medical examination. Upon examination, she found that the victim girl was developed according to her age, she was conscious and oriented. On genital examination, the hymen of the victim girl was not intact and she has collected articles from the victim girl. Accordingly she has issued the Medical Certificate which is as per Ex.P10 and the signature of this witness is as per Ex.P10(a) and the signature of the mother of the victim girl is as per Ex.P10(b). Thereby, this witness has performed her statutory duty. This witness was cross- examined by the learned counsel for the accused. In her cross- examination, she has denied that she has not examined the victim girl. She has also denied that, she has given false Report as per Ex.P10 at the request of the police.
14. Next coming to the evidence given by the police officials, I would like to take up firstly the evidence given by PW8- Woman PSI. In her evidence before the court, she has deposed that, on 20.5.2019 as per the requisition of Police Inspector of Kengeri police station, she has recorded the statement of the victim girl . The said Statement is as per Ex.P1 and her signature is as per 11 Spl CC No.890/2019 Ex.P1(b). The signature of the victim girl is as per Ex.P1(a). Thereby, this witness has performed her statutory duty. This witness was cross-examined by the learned counsel for the accused. In her cross-examination she has denied that she has not recorded the statement of the victim girl as per Ex.P1. She has also denied that, she is deposing falsely before this court.
15. PW5 is the Police Inspector who has deposed about conducting of preliminary investigation of this case .In his evidence before the court he has deposed that, on 20.5.2019, he has received the case file of this case from CW13 and verified it. On the same day, he has recorded the statement of the victim girl through CW7 and thereafter sent the victim girl to medical examination to Rajarajeshwarinagar Hospital. Thereafter he has conducted mahazar of the spot as shown by the victim girl. The said Mahazar is as per Ex.P2 and his signature is as per Ex.P2(d). On the same day, he has deputed his staffs Cws-8 and 9 for tracing out the accused and they have traced out the accused and produced before him and in this regard, Report is as per Ex.P9 and his signature is as per Ex.P9(a). Further he has deposed that, on 21.5.2019, he has sent the accused for medical examination to Rajarajeshwari Nagar Hospital. On the same day, he has sent the victim girl along with CW12 for recording of her statement before the concerned court. Further he has deposed that, on 4.6.2019, he has obtained 2 articles belonging to the accused and subjected it to PF NO.68/2019. He has also obtained 7 articles belonging to the victim girl and subjected it to PF No.69/2019. Thereafter he 12 Spl CC No.890/2019 has recorded the statements of CWS-8 to 13. On 17.6.2019, as he was transferred he has handed over the case papers of this case to CW15 for further investigation. Thereby, this witness has performed his statutory duty. This witness was cross-examined by the learned counsel for the accused. In his cross-examination, he has denied that, he has created documents for the purpose of this case .
16. PW7 is the Police Inspector/ Final Investigating Officer of this case. In his evidence before the court, he has deposed that, on 17.6.2019, he has received the case file of this case from CW14 and verified it and submitted charge-sheet against the accused. This witness was cross-examined by the learned counsel for the accused. In his cross-examination, he has denied that, he has filed false charge-sheet against the accused.
17. Considering the evidence of the above prosecution witnesses, particularly, the evidence of the victim girl and her mother both these witnesses have totally turned hostile to the prosecution case and they have not supported the case of the prosecution to bring home the guilt of the accused beyond all reasonable doubt that, the accused committed rape/ aggravated penetrative sexual assault on her repeatedly, knowing fully well that the victim girl was a minor. Hence, there is no chain to link the accused with the alleged crime. Though the evidence of the police officials are corroborative that, the victim girl was subjected to sexual assault by the accused and the victim girl was subjected 13 Spl CC No.890/2019 to medical examination and the accused was arrested, but, they do not come to the aid of the prosecution, as because PWs-1 and 2 have totally turned hostile to the prosecution case and they have not supported the prosecution case. Even the Mahazar witnesses except by admitting their signatures on Ex.P2, they have not supported the case of the prosecution to link the accused with the crime. Even the Lady doctor who has physically examined the victim girl and given the Medical Report and opined that, the hymen of the victim girl was not in-tact, but this evidence also do not come to the aid of the prosecution, as the victim girl herself has not supported the prosecution case. Though the Woman PSI who has been examined before the court as PW8, who has recorded the statement of the victim girl as told by the victim girl to her, but this witness is only a hear-say witness as told to her by the victim girl. When the victim girl herself has not supported the case of the prosecution that the accused has committed rape/ aggravated penetrative sexual assault on her, even she has been subjected to cross-examination by the Learned Public Prosecutor at length but the prosecution miserably failed to elicit any single piece of evidence from the mouth of this witness. The Victim girl except identifying her signatures nothing has deposed against the accused to hold that the accused has committed the offence as alleged against him. Thereby, I am of the view that the accused is entitled for an order of acquittal from the hands of this court. Of course, the presumption under Sec.29 of POCSO Act, 2012 goes against the accused but, the prosecution has to prove its case by furnishing cogent evidence but it failed to do so, thereby, I hold 14 Spl CC No.890/2019 that, the prosecution has not proved the guilt of the accused and the accused is entitled for an order of acquittal. Accordingly, I answer Point No.1 in the Negative.
18. In the present case, as per the discussions made by me herein above, the victim girl has deposed before the court that, she has not suffered any sexual assault on her from the accused . Considering these aspects, I find no reasons to award compensation to the victim girl as per the provisions under Rule 7 of POCSO Rules 2012, as such no compensation is awarded to the victim girl.
19. POINT NO.2:-:- In view of my findings on Point Nos.1 to 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.376 of IPC and Sec.6 of POCSO Act 2012.
[Dictated to the Stenographer directly on the computer, corrected carried out and then pronounced by me in the open court on this the 7 th day of October, 2020] [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.15 Spl CC No.890/2019
ANNEXURES:
Witnesses examined for the prosecution:
PW1 Victim girl CW2 6.11.2019
PW2 Kauser CW1 28.8.2020
PW3 Mushtafa CW3 28.8.2020
PW4 Sameer CW4 28.8.2020
PW5 Jagadeesh CW14 7.9.2020
PW6 Dr.Sowmya CW5 7.9.2020
PW7 Ramappa Guther CW15 18.9.2020
PW8 Geetha Lakshmi CW7 3.10.2020
Documents marked for the prosecution:
Ex.P1 Statement of PW1/ victim girl given before the
complainant police under Sec.161 of Cr.P.C Ex.P1(a) Signature of PW1/ victim girl Ex.P1(b) Signature of PW8 Ex.P2 Panchanama Ex.P2(a) Signature of PW1/ victim girl Ex.P2(b) Signature of PW3 Ex.P2(c) Signature of PW4 Ex.P2(d) Signature of PW5 Ex.P3 Statement of PW1/ victim girl given before the Learned Magistrate under Sec.164 of Cr.P.C Ex.P3(a) Signature of PW1/ victim girl Ex.P3(b) Signature of PW2 Ex.P4 Complaint dated: 19.5.2019 lodged by the complainant/ PW2/ mother of the victim girl to the complainant police Ex.P4(a) Signature of PW2 Ex.P5 Requisition dated: 21.5.2019 [consent marked] Ex.P6 Acknowledgement Ex.P7 Report given by CW11-Head constable regarding collecting the Medical Report of the accused and also the articles collected from the accused and handing over it to the Police Inspector of the complainant police station [consent marked] 16 Spl CC No.890/2019 Ex.P8 Report given by CW12-Woman PC regarding collecting the Medical Report of the victim girl and also the articles collected from the victim girl and handing over it to the Police Inspector of the complainant police station [consent marked] Ex.P9 Report given CW8- Head constable to the Police Inspector regrading tracing of the accused and producing the accused before the Police Inspector of the complainant police station Ex.P10 Medical report of PW1/ victim girl Ex.P10(a) Signature of PW2 Ex.P10(b) Signature of PW6 Ex.P11 FIR [by consent] Witness examined, documents, marked for the accused: NIL [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.17 Spl CC No.890/2019
7.10.2020 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.376 of IPC and Sec.6 of POCSO Act 2012.
[R.SHARADA]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.18 Spl CC No.890/2019