Bangalore District Court
Unknown vs Ramesh @ Sodu on 31 August, 2016
IN THE COURT OF THE LIII ADDL.CITY CIVIL & SESSIONS
JUDGE, BANGALORE
DATED THIS THE 31st DAY OF AUGUST 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 546/2014
COMPLAINANT :
The State of Karnataka by
Hanumanthanagar Police Station,
Bangalore.
[Represented by learned Public Prosecutor,
Bangalore.]
/ VERSUS /
ACCUSED:
1. Ramesh @ Sodu,
S/o. Shivarudra,
Aged about 22 years,
R/at No.41, 1st Cross,
Kalidasa Layout,
Srinagar,
Bangalore City.
2. Puttaswamy @ Putta,
S/o Guligowda,
Aged about 22 years,
R/at Adjacent to Radhakrishna School,
Maruthi Block, Guttepradesha,
2 Spl C.C.546/2014
Srinagara,
Bangalore City.
[Reptd by Sri K.M.Mahesh -advocate]
JUDGMENT
Hanumanthanagar Police, Bangalore City have charge sheeted the accused Nos. 1 and 2 for offences punishable under Sections 342, 376, 506 of Indian Penal Code and under Section 3 & 4 of Protection of Children from Sexual Offence Act, 2012.
2. The case of the prosecution, in brief, is as under :
CW-1 is the minor daughter of CW-2 Nagaraja and CW-3 Gowramma. She was studying in II PUC during the year 2014-15 by taking readmission. Accused No.1 is the friend of CW-1. When she had gone to her friend CW-4 Ranjitha's house on 18.7.2014 for notes, at Srinagar bus stop accused No.1 had taken away her on his two wheeler to his outhouse No.41, Kalidasa extension, Srinagar, where he made her to drink Fanta of which caused some giddiness to her, accused No.1 had committed rape on her and left her at 4.00 p.m. on the same day near Hosakere halli Ring Road, he had given threat to her not to disclose, otherwise he would finish off his family
3 Spl C.C.546/2014 members. In fear she did not go to her house, but went to her friend CW-4's house where she spent whole night, on next day she returned home. When she revealed this incident over phone to accused No.2, he also gave threat to her life not to disclose the incident. After revealing the incident before her parents, she had lodged a complaint. Investigating Officer registered the case, drew necessary mahazars and recorded the statement of other prosecution witnesses. Accused No.1 and 2 were apprehended. Accused persons and also the victim girl were sent to hospital for medical examination. By completing the investigation he submitted charge sheet to the court for the aforesaid offences.
3. The charge sheet was submitted to 50th A.C.C. & S.J Court and the same was registered in Spl.C.C. by taking cognizance. Thereafter on the point of jurisdiction it was transferred to this court. Then P.O heard on both sides framed charge against accused No.1 for offences punishable under Sections 376, 342, 506 of I.P.C and for offences punishable under Section 3 r/w 4 of Protection of Children from Sexual Offence Act, 2012 and against accused No.2 for offences punishable under Section 506 of I.P.C and read over to 4 Spl C.C.546/2014 the accused. Accused pleaded not guilty and claimed to be tried. Hence, posted for evidence on prosecution side.
4. On prosecution side got examined as many as 13 witnesses as P.W.1 to P.W.13 out of 23 charge sheet witnesses and got marked the documents at Ex.P.1 to Ex.P.10 and material objects at M.O.1 to 7, the details of which are given in the annexure of this Judgment. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C have been recorded against accused No.1 and 2. Accused have denied the whole incriminating evidence against them and they have not chosen to lead evidence on their side. It was posted for arguments.
5. Heard the arguments on both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under :
1. Whether the prosecution has proved beyond reasonable doubt that accused No.1 on 18.7.2014 had committed rape on CW-1 the child of CW-2 and 3 at 12.00 p.m., in his 5 Spl C.C.546/2014 house No.41, I Cross, Kalidasa Extension Srinagara, punishable under Section 376 of I.P.C?
2. Whether the prosecution has proved beyond reasonable doubt that accused No.1 had committed rape on the aforesaid date, time and place, punishable under Section 3 r/w Section 4 of Protection of Children from Sexual Offence Act, 2012?
3. Whether the prosecution has proved beyond reasonable doubt that accused No.1 had wrongfully confined CW-1 in his outhouse on 18.7.2014, punishable under Section 342 of I.P.C?
4. Whether the prosecution has proved beyond reasonable doubt that accused No.1 on 18.7.2014 after committing rape given threat to her family members that incident should not be disclosed to others, punishable under Section 506 of I.P.C?
5. Whether the prosecution has proved beyond reasonable doubt that accused No.2 had given threat to life of CW-1 that she should 6 Spl C.C.546/2014 not disclose to anybody when she reveals the incident of rape occurred on 18.7.2014, over phone, punishable under Section 506 of I.P.C?
6. What order?
7. My findings on the above points are as under:-
Point No.1 : In the negative Point No.2 : In the negative Point No.3 : In the negative Point No.4 : In the negative Point No.5 : In the negative Point No.6 : As per final orders for the following REASONS
8. Points No.1 to 4: These points are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
9. The prosecution has made serious allegations against accused No.1 that he had committed rape on PW-1, the child on
7 Spl C.C.546/2014 18.7.2014 in his house at 12.00 p.m. According to prosecution she was of 17 years as on the date of alleged incident. The incident took place after POSCO Act came into force. Hence, the said Act applies to present case.
10. In view of Section 2(1)(d) of POSCO Act "child" means any person who is under the age of 18 years. According to prosecution PW-3 is the child as on the date of occurrence.
11. Section 29 of Protection of Children from Sexual Offence Act, 2012 provides presumption as to certain offences:-
"Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."
Therefore, at the first instance the age of the prosecutrix shall have to be determined. On this point the prosecution has placed evidence of PW-3, the prosecutrix, PW-5 Nagaraj, father of victim, PW-4 Rithu Sharma the Principal of the College in which she was 8 Spl C.C.546/2014 studying during that time. Ex.P6 is the certificate issued by PW-4 based on college records.
12. In view of Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007) age should be determined by matriculation or equivalent certificates or date of birth certificates from school first attended or birth certificate by Corporation/Municipal authority or Panchyat and only in the absence of such documents medical opinion can be sought for. On this point I have relied upon (2013) 14 SCC 637 (Mahadeo S/o Kerba Maske Vs. State of Maharashtra and another), it has held that:
"Penal Code, 1860 - Ss. 376 and 363 - Kidnapping and rape - Age of prosecutrix/victim - Determinatin of
- Yardstick for - Certificates of age from schools or Local Authorities Vis-à-vis medical evidence - Held, statutory provision in Juvenile Justice (Care and Protection of Children) Rules, 2007, R.12(3) is also applicable to determine age of young prosecutrix/victim - Hence, it should be determined by matriculation or equivalent certificates or date of birth certificates from school first attended or birth certificate by Corporation/Municipal authority or Panchayat and only in absence of such documents medical opinion can be sought for - Therefore, reliance 9 Spl C.C.546/2014 placed upon school certificates to arrive at age of prosecutrix to be below 18 years was perfectly justified
- Juvenile Justice (Care and Protection of Children) Rules, 2007 - R.12(3) - Procedure for determination of age of juveniles - Application of, for determination of age of victim/prosecutrix - Criminal Trial - Medical Jurisprudence/Evidence - Age - Juvenile/Child victim - Proof of age - Valid evidence".
In view of oral testimony of PW-3 and PW-5 the victim girl was under the age of 18 years. Same is also supported by oral evidence of PW-4, the Principal. It is strengthened by Ex.P6, the certificate issued by her certifying her date of birth is 9.3.1997. The date of incident is 18.7.2014. Accordingly she was of 17 years 4 months at that time. There is no other evidence to contradict the same. The age of the victim can very well determined that she was the child as on the date of the incident.
13. Now, the question arises whether accused No.1 had committed rape on Pw-3 in his house on 18.7.2014 at 12.00 p.m. Accused is not stranger to PW-3. He is her friend. According to prosecution Pw-3 came in contact with accused No.1 through accused No.2. PW-3 and accused No.1 had phone contacts. They became friends. On 18.7.2014 she left the house to collect notes 10 Spl C.C.546/2014 from her friend CW-6 Ranjitha. House of CW-6 Ranjitha is in 12th Main, Srinagara. After collecting notes from her again Pw-3 came back to Srinagara bus stop from where she made a phone call to accused No.1 who took her on his two wheeler from that bus stop to his outhouse bearing No.41, I Cross, Kalidasa Extension, Srinagara, Bangalore. While he was taking her on his two wheeler in Kalidasa circle, PW-6 Kushappa, who is known person to the family of PW-3 had seen them. He made her to drink Fanta of which caused some giddiness to her, accused No.1 forcibly held her and committed rape against her will despite her protest and shouting. Though she requested him, did not allow her to go outside the house, but confined her in the house. By that time CW-5 Santhosh cousin brother of accused No.1 returned to house from school and had seen PW-3 who was pale. When he questioned accused No.1 about her condition, he disclosed the incident and also requested him not to disclose to his parents. Hence CW-5 kept quite. Thereafter, accused No.1 took her in auto and left her nearby Hosakere Halli Ring Road and also had given threat not to disclose the incident to her parents, otherwise he would finish them. Because of apprehension she did not 11 Spl C.C.546/2014 go to her house, but she stayed in her friend Ranjitha's house that night, on next day, in the afternoon returned to her house and disclosed the incident to her parents. When she contacted accused No.2 over phone intimating the incident, accused No.2 had also given threat to her life if she disclosed to anybody. This is the case of the prosecution.
14. The charges against accused No.1 are under Section 376 of I.P.C, under Section 3 r/w 4 of Protection of Children from Sexual Offence Act, 2012. The charge under first head and under 4th head are one and the same. The first head is relating under Section 376 of I.P.C. The 4th head is relating to the commission of rape which is punishable under the provision of POSCO Act. Though under distinct heads framed, they are the one and the same not distinct offences. Hence, 1st head and 4th head in charge are taken them as point No.1 and 2 as they are related to commission of rape.
Section 42 of POSCO Act provides:-
"Alternative punishment - Where an act or omission constitute an offence punishable under this Act and also under any other law for the time being in 12 Spl C.C.546/2014 force, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment only under such law or this Act as provides for punishment which is greater in degree".
15. Therefore, if offence is proved for offence under Section 376 of I.P.C which is also an offence under Section 3 r/w Section 4 of POSCO Act 2012 then he shall be punished under the said Act with imprisonment of which is greater in degree. Therefore, points No.1 and 2 are one and the same, not distinctive offences.
16. The another charge against accused No.1 is wrongful confinement, punishable under Section 342 of I.P.C. According to the allegation immediately after commission of rape he did not allow her to come outside the house. The another charge is criminal intimidation committed by him at 4.00 p.m., when he left her in auto near Hosakere Halli Ring Road he gave threat to her not to disclose to anybody otherwise he would finish off her family members.
17. Mainly there are aforesaid 3 charges against accused No.1. Ofcourse the presumption laid down under Section 29 of the Act is available to the prosecution concerned to offence of rape as accused 13 Spl C.C.546/2014 has been prosecuted in the present case for offence under Section 3 r/w 4 of POSCO Act. But, it is rebutable presumption. The accused can also rebut the same by placing reliance on the evidence available on prosecution side. Hence, it is essential to have a look upon the evidence placed on prosecution side.
18. In order to prove its case prosecution has got examined as many as 13 witnesses. PW-3 is the prosecutrix. PW-5 Nagaraja is the father of the prosecutrix. PW-2 Gowramma is the mother of the prosecutrix. PW-7 Santhosh is the first person who had seen Pw-3 in the house of accused No.1 immediately after commission of rape. Pw-6 Kushappa is another eyewitness who had seen accused No.1 taking away PW-3 on two wheeler to his house. PW-1 Dr. Soumya had examined PW-3 and based on local examination submitted medical report as per Ex.P1 by giving her final opinion. PW-11 Dr. Pradeep Kumar had subjected accused to medical examination and issued medical report as per Ex.P9. These are all the material witnesses on the point of commission of rape.
14 Spl C.C.546/2014
19. On going through the oral testimony of PW-3 she has to some extent supported the case of the prosecution. PW-5 Nagaraja, father of the victim has partly supported the prosecutrix. PW-2 Gowramma, mother of the victim has not at all supported the prosecution. Pw-3 was studying in II PUC at the time of alleged incident. According to her complaint at Ex.P3 dated 19.7.2014 she left the house to collect notes from her friend CW-4 Ranjitha who was residing in 12th Main, Srinagara. As per prosecution she after collecting the notes she came back to Srinagara bus stop, from that place accused No.1 took her to his house. On this point the evidence of PW-2, 3 and 5 is very material whether PW-3 had left the house on 18.7.2014 for the purpose of collecting notes from CW-4.
20. As already mentioned in supra Pw-2 Gowramma has not at all supported the prosecution case. She is the material witness in the present case. But, her oral testimony does not help the prosecution in proving its case in anyway. As per prosecution Pw-3 had disclosed the incident on next day afternoon, thereafter PW-3 had lodged a complaint, accordingly PW-2 Gowramma had given statement as per Ex.P2. Though PW-2 is subjected to cross-examination by the 15 Spl C.C.546/2014 learned Public Prosecutor nothing more has been extracted from her mouth in the cross-examination led on prosecution side. Her evidence is of no avail to prosecution.
21. PW-5 Nagaraja is the father of PW-3. As per prosecution he is the hearsay witness like PW-2. In the chief-examination itself he has stated that his daughter was then studying in I PUC of which is very much contrary to prosecution. In page No.2 of his chief- examination he has stated that his wife informed him over phone "that when PW-3 had been to her friend's house accused No.1 who is the neighbour of CW-4 made PW-3 to drink cool drinks, after she lost conscious he fell on her". As per prosecution accused No.1 is not known to CW-4 and he is not the neighbour of CW-4. House bearing No.35 of CW-4 is in 12th Main, Srinagara. Accused No.1 was residing with his uncle and aunt in outhouse No.41 in I Cross, Kalidasa Extension, Srinagara. The oral testimony of PW-5 on this aspect is very much inconsistent with that of the prosecution case. As discussed in supra PW-2 has not at all spelt out even a single word against accused No.1 16 Spl C.C.546/2014
22. On going through the other portion of chief-examination of PW-5 he has categorically stated he got the information from the college that PW-3 was not attending the college regularly, he restricted her to go to the college, thereafter he allowed her to go to the college because of her adamancy. He has further stated that one year back about 8.00 a.m she left the house to go to her friend's house to get notes, then she returned home on next day. PW-5 has supported the prosecution to the extent of PW-3 left the house in the morning and returned on next day afternoon. In view of oral testimony of PW-3 she has also stated in her chief-examination when she was in Srinagara bus stop on 18.7.2014 accused No.1 took her to his house between 11.45 a.m., and 12.00 p.m. She has not stated in her chief examination anything for what purpose she left the house and whether she had been to her friend's house and collected the notes from her. She is subjected to cross examination on defence side on all these aspects, she has given contradictory statement. In first para at page No.5 she has stated that she had gone to Srinagara bus stop from her house in auto, Ranjitha's house is nearby Srinagara bus stop. In further she has stated CW-4 was not at 17 Spl C.C.546/2014 home, she had gone to the college, her house was kept locked. She has also in further given a strange statement of which doubts the case of the prosecution itself. She has stated in the same para that she and CW-4 Ranjitha were studying in different standards, PW-3 discontinued her studies for one year. As per the case of the prosecution she left the house to take notes from CW-4. As per Ex.P3 complaint given by the PW-3 herself she collected the notes from CW-4 and she came back to Srinagara bus stop, then accused No.1 took her. But, her statement in the cross-examination led on defence side does not corroborate the prosecution on this aspect. As per her own statement in page No.5 Ranjitha was not at home her house was kept locked. In other words she did not collect the notes from CW-4. This instance makes prosecution case suspicion. Her further statement that both of them were studying in different classes also makes the prosecution case doubtful that she left the house with intent to collect notes from CW-4. In page No.6, para No.2 of her cross-examination she has maintained another version that she had telephoned to the house of CW-4 before she left the house, mother of the CW-4 informed that Ranjitha had been to the 18 Spl C.C.546/2014 college, she was not at home. There is specific suggestion made by the learned counsel for the accused though she knew that CW-4 was not at home she had gone to her house then, she stated 'yes'. But, this is very much contrary to the case of the prosecution. According to her complaint at Ex.P3 she went to CW-4's house, she collected the notes and came back to Srinagara bus stop. It is evident from Ex.P3 and the oral testimony of PW-3 that her testimony is found to be unreliable. There is no convincing evidence that PW-3 left the house on 18.7.2014 with intent to collect notes from CW-4. At the first style itself the case of the prosecution is found to be suspicious.
23. According to prosecution accused No.1 took her on two wheeler from Srinagara bus stop after she contacted him over phone. It is not the case of the prosecution that accused No.1 voluntarily approached her in Srinagara bus stop. As per prosecution PW-6 Kushappa had seen the accused taking PW-3 on his two wheeler in Kalidasa circle. PW-6 had gone to that place for his work, while he was going by walk he had seen PW-3 with accused No.1. According to prosecution PW-6 is known person to father of PW-3. He had also acquaintance with PW-3. Even according to prosecution accused 19 Spl C.C.546/2014 No.1 who is from Kalidasa Extension, Srinagara area is not stranger to PW-6. Therefore the evidence of PW-6 is very material in the present case. But, on going through his whole evidence would not suggest anything about taking away the victim girl by the accused No.1 in his two wheeler on 18.7.2014. His evidence does not corroborate prosecution. There is no material on record to show that accused No.1 took her on his two wheeler from Srinagara bus stop.
24. As per prosecution there is another material witness who had seen PW-3 in the house of accused No.1. PW-7 Santhosh is none other than the cousin brother of accused No.1. He, his parents and accused No.1 were residing in the outhouse bearing No.41. After accused No.1 committed rape on Pw-3, PW-7 returned home from the school, on being seen the condition of PW-3 he questioned accused No.1, he revealed the incident to PW-7 and also restricted him not to reveal anybody, hence he did not disclose. But, the oral testimony of PW-7 does not help the prosecution in anyway in establishing either the presence of PW-3 or the involvement of accused No.1. PW-7 is stated to be the first person who had seen PW-3 in his house immediately after the incident. PW-6 is the first 20 Spl C.C.546/2014 person who had seen the accused taking away PW-3 on his two wheeler. PW-7 is the second person who had seen PW-3 in the company of accused No.1. But, their evidence would not suggest anything on this aspect. Ofcoruse PW-7 is the cousin brother of accused No.1. Even for a while it is taken that PW-7 may be lying in order to help accused No.1, is there any other evidence to convince the case of the prosecution is to be seen. PW-6 is an independent witness. But, his evidence is not helpful to the prosecution. The another material witness is mother of PW-3. She has totally denied the case of the prosecution. The evidence of PW-3 victim girl is not trustworthy as she goes on changing colour of her version. Even the oral testimony of Pw-5 father of the victim girl also does not corroborate the prosecution and his evidence suffers from material contradictions. Even the oral evidence of PW-3 also is suffering from not only the material contradictions, but also serious omissions. There is lot of improvements in her evidence. I have already discussed in supra in detail that according to prosecution her friend was not at home on that day. Another version of PW-3 is her house was kept locked. But, according to prosecution she collected notes 21 Spl C.C.546/2014 from her friend, thereafter she returned to Srinagara bus stop. Thus her evidence suffers from material contradictions of which go to very root of the case of the prosecution.
25. According to prosecution after the alleged incident accused No.1 had left Pw-3 near Hosakere Halli Ring Road at 4.00 p.m., this was not seen by any other person, PW-3 did not return home on the same day, but stayed in the house of CW-4 and on next day afternoon she had come back home. On this aspect evidence of CW- 4 is very important. At the same time evidence of Pw-2 Gowramma, mother, PW-5 Nagaraja, father of victim girl is also very material. Inspite of issuance of NBW number of times CW-4 is not secured on prosecution side. Non-examination of CW-4 is fatal to the case of prosecution. Evidence of other witnesses does not prove the guilt of the accused i.e., charge of offence of rape, even offence of criminal intimidation and also wrongful confinement. PW-2 Gowramma has not opened her mouth she has not stated anything about the case of the prosecution. Pw-5 has not at all stated anything bout her stay in the house of CW-4 during night on 18.7.2014. Ofcourse he has stated that she left the house for book to be borrowed from CW-4, 22 Spl C.C.546/2014 but she returned home on next day afternoon. Therefore, Pw-3 is sole witness who has to speak the truth about the alleged incident. According to prosecution though there are number of witnesses who had seen Pw-3 in the company of the accused and other circumstantial witnesses, no satisfactory and clinching evidence is forthcoming in their evidence.
26. The cross-examination PW-5 gave a different story. PW-3 was in the habit of not returning home after college hours, but coming back on next day, he did not cross question her. That itself shows was irregular to the college. He has gone to the extent of admitting that PW-3 was lying before parents, without informing she was going elsewhere, he did not check it and also did not get any clarification from her. It is evident from the evidence of PW-5 and non-support by PW-2 mother of the victim that parents of Pw-3 might have been frustrated from her behaviour. So far as concerned to the present case there is no believable evidence on record that she had left the house for the purpose of collecting book from CW-4 and also she stayed in her house during that night. Under the circumstance, the oral testimony of PW-3 that she had gone to her 23 Spl C.C.546/2014 friend's house on that day and she stayed in her house during that night is very difficult to be believed.
27. According to case of the prosecution itself PW-3 contacted accused No.1 over phone, thereafter he had come and taken her from Srinagara bus stop to his house. It is not the case of the prosecution that the outhouse of accused No.1 is located in remote area. As per prosecution it is the outhouse, naturally the main house is in front of the outhouse. It is not the case of the prosecution that the said house is not surrounded by other residential houses. Say of PW-3 that she shouted and protested but he raped her against her will, is far away from the truth for the reason there is no piece of evidence to show her version is found to be reliable. Except the contradictory version of Pw-3 there is no other evidence to prove the case of the prosecution.
28. Another circumstance found on record makes the version of PW-3 unbelievable. As per prosecution accused No.1 had committed rape on her despite of her protest and shouting. Under the circumstance, naturally the injuries would have been caused 24 Spl C.C.546/2014 either on body of the person or at least in and around the genitalia. But, there is no supportive medical evidence available to prosecution. In order to put forth its case the prosecution has made best efforts to bring the materials on record. But, it does not prove its case, but doubts the case of the prosecution itself. PW-1 Dr. Soumya is another material witness in the present case. In the cases of rape the medical evidence also placed an important role in determining the commission of rape. Ex.P1 is the medical report issued by PW-1 stating that she had examined Pw-3 on 20.7.2014. The alleged incident occurred on 18.7.2014 at about 12.00p.m. PW-1 subjected her to necessary tests to assess whether she was used to act like that of sexual intercourse. Based on the medical examination she opined as under:
i. Signs of recent sexual act absent, ii. Hymen - intact, iii. Labia Majora - normal, iv. Labia Minora - normal,
25 Spl C.C.546/2014 v. Clitoris - normal, vi. No external injuries found.
Under these circumstances, inconsistent, un-reliable version of PW-3 cannot be solely based to convict the accused for offence of rape. Ofcourse in the cases like this nature eyewitness may not be available, but that could be proved from reliable, oral testimony of victim girl and from other circumstantial evidence. As already mentioned in supra though there are eyewitness, their evidence does not prove the case of the prosecution that victim was in the company of the accused before commission of offence and even after offence of alleged rape. The evidence of those material witnesses i.e., PW-6 and 7 are of no avail to prosecution to prove that aspect. Even there is no evidence of CW-4 to prove that Pw-3 had been to her house to collect book and stayed in her house during that night.
29. There is no bar to convict the accused for offence of rape based on evidence of the victim girl provided her evidence is found reliable and trustworthy. Otherwise the court shall have to look for corroboration. In the present case the evidence of PW-3 is not 26 Spl C.C.546/2014 credible, her oral testimony is very difficult to be believed due to the reason assigned in supra and even there is no supportive medical evidence which is another substantive evidence to prove the offence of rape.
30. Though the prosecution made allegation that accused No.1 did not allow PW-3 to come out of house after the commission of rape. PW-3 has not at all whispered on this aspect. She is the sole witness who has to speak about this illegal act of the accused. But, nowhere it is found either in her chief-examination or in the cross examination. Her statement in the chief-examination is entirely different from the case of the prosecution. In page No.2 she has stated "that though she requested him and crying, he did not have, she became unconscious, after regaining the conscious she was in the room, accused No.1 had threatened her not to disclose this to her parents. Later she had gone to the house of CW-4 where she stayed whole night". This is not at all the case of the prosecution that she was unconscious and accused No.1 had given threat to her life in his house itself and PW-3 on her own had gone to the house of CW-4. As per the prosecution accused No.1 himself took her in 27 Spl C.C.546/2014 auto and left her in Hosakere Halli Ring Road, thereafter she had gone to the house of CW-4. On each and every aspect PW-3 goes on changing her versions of which cannot be based to hold the guilt of accused No.1 for alleged charges of rape, wrongful confinement and even criminal intimidation. There is no other piece of evidence to substantiate the version of PW-3. As per prosecution there are number of witnesses to speak about the alleged incident. But, no single witness has supported the case of the prosecution. Ofcourse her father only has partly supported the case of the prosecution, but he is only hearsay witness and even his oral testimony is not sufficient to gather the version of PW-3 is found reliable. His oral testimony itself would reveal that PW-3 was in the habit of lying before her parents, not disclosed her movements, even after attending the classes not returning home some days, but, only on next day. Under these circumstances, unreliable oral testimony of PW-3 and incredible evidence of PW-5 father of PW-3 can not be based in the absence of support by medical evidence to hold the guilt of accused No.1 for alleged charges of offences of rape, wrongful confinement and the criminal intimidation.
28 Spl C.C.546/2014
31. PW-12 Radha is then Police Sub Inspector who has registered the case based on Ex.P3, the complaint given by Pw-3. Ofcourse she reiterates the case of the prosecution. But, in the absence of medical evidence the case of the prosecution requires the strong and reliable evidence to believe the case of the prosecution. It is pertinent to note ofcourse Section 29 of the POSCO Act provides the presumption in favour of the prosecution. But, there is no supportive medical evidence to prove that the rape has been committed on her. In the absence of any other materials on record solely based on untrustworthy evidence of PW-3 accused cannot be convicted for the alleged charges. The evidence placed on prosecution side itself rebuts the presumption laid down under Section 29 of the Act. The material point to be noted here is though Pw-3 was under the age of 18 years, 8 months only was less to complete 18 years. She was capable of understanding the pros and cons of her acts and movements. Under these circumstances, viewed from any angle accused cannot be connected to alleged charges.
29 Spl C.C.546/2014
32. PW-8 Ningaraju is the spot panch to Ex.P1 said to have been drawn in his presence in the house of accused No.1 in respect of commission of offence of rape and wrongful confinement. PW-9 Nagappa is also another spot panch. But, they have not supported the prosecution. PW-10 Madesh is one of the seizure panch as to clothes of the victim girl collected by drawing mahazar as per Ex.P5 in the house of victim girl and PW-10 is also seizure panch to Ex.P9 under which mobile phones from accused No.1 and 2 are said to have been sized from them in the police station on 21.7.2014. But, seizure of clothes and mobile phones does not prove the case of the prosecution itself. Ofcourse the evidence of PW-10 does not support the prosecution. PW-11 Dr. Pradeep Kumar has stated that he has examined the accused. He had issued report as per Ex.P9 that there is nothing to suggest that the accused is in capable of performing sexual intercourse. But, it does not help the prosecution in anyway when Ex.P1 the medical report issued by PW-1 would speak that no external injuries on the body of the victim girl, hymen intact, there is absence of recent sexual intercourse. The presumption under Section 29 of the Act is rebutable, accused has rebutted the same. The 30 Spl C.C.546/2014 prosecution has failed to prove its case beyond reasonable doubt. There is no reliable, satisfactory and convincing evidence on record to believe its story. The prosecution has failed to prove its case beyond reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold points No.1 to 4 in the negative.
33. Point No.5: The prosecution has also made allegation against accused No.2 that he had given threat to the life of PW-3 when she revealed the incident of rape occurred on 18.7.2014 over phone. But, the oral testimony of PW-3 would not specifically suggest that he had committed offence of criminal intimidation. She gave contradictory evidence on this point. On one breath she says that accused No.2 did not do anything to her, on other breath she says that he gave threat to her over phone. As per prosecution he had committed criminal intimidation over phone only. It requires the details of call register of his cell phone and cell phone of PW-3. Investigating Officer produced the Xerox copy of which does not bear the signature and seal of the concerned authority who is empowered to issue such document. Under the circumstance, the evidence of the prosecutrix is vital. But, as mentioned in supra, she has given 31 Spl C.C.546/2014 two different versions of which is very difficult to be relied to connect accused No.2 with alleged offence under Section 506 of I.P.C.
34. PW-2 Gowramma mother and PW-5 Nagaraja father of the prosecutrix are hearsay witnesses on this point. But, nothing is found in the evidence of Pw-5 though he has partly supported the prosecution. PW-2 has totally denied whole case of the prosecution. Under the circumstance, it is not safe to place reliance on inconsistent evidence of Pw-3. Apart from that as already discussed in supra there is no credible, reliable and convincing evidence that accused No.1 had committed rape on her or even wrongfully confined her and gave threat to her life. Under the circumstance, accused No.2 also cannot be held guilty for offence under Section 506 of I.P.C. Viewed from any angle the prosecution has failed to prove its case beyond reasonable doubt to convict the accused No.2. Accused No.2 is entitled for the benefit of doubt. Hence, I hold point No.5 in the negative.
35. Point No.6: In view of my above discussion and findings, I proceed to pass the following:
32 Spl C.C.546/2014 ORDER Acting under Section 235(1) of Cr.P.C. accused No.1 is hereby acquitted for offences punishable under Sections 376, 342 and 506 of Indian Penal Code and Section 3 r/w Section 4 of Protection of Children from Sexual Offence Act, 2012 and accused No.2 is hereby acquitted for the offence punishable under Section 506 of I.P.C.
MO.1 and 2 mobiles (in PF No. 71/2014 PR 520/15). They are ordered to be confiscated to state after appeal period is over.
MO.3 to 5 (items No.1 to 3 in PF No.70/2014 PR 520/2015), MO 6 and 7 (Items No.1 and 2 in PF No.76/2014 PR 520/2015) and Items No.1 to 4 in PF NO.69/2014 PR No.520/2015 are ordered to destroyed as worthless after appeal period is over.
(Dictated to the Stenographer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 31st day of August, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
33 Spl C.C.546/2014
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
PW.1 Dr. Soumya K
PW.2 Gowramma
PW.3 Prosecutrix
PW.4 Rithu Sharma
PW.5 Nagaraj
PW.6 Kushappa
PW.7 Santhosh
PW.8 Ningaraju
PW.9 Nagappa
PW.10 Madesh
PW.11 Dr. Pradeep Kumar.M.P.
PW.12 Radha S
PW.13 M. Gopalakrishnegowda
LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Medical report of victim Ex.P 1(a) Signature of PW-1 Ex.P 1(b) Signature of victim Ex.P 2 Statement of Pw-2 Ex.P 3 Complaint Ex.P 3(a) Signature of PW-3 Ex.P 4 Mahazar Ex.P 4(a) Signature of PW-3 Ex.P 4(b) Signature of PW-8 34 Spl C.C.546/2014 Ex.P 4(c) Signature of Pw-9 Ex.P4(d) Signature of PW-12 Ex.P5 Spot Mahazar Ex.P5(a) Signature of victim Ex.P5(b) Signature of PW-10 Ex.P5(c ) Signature of PW-13 Ex.P6 Letter issued to school by the Investigating Officer Ex.P6(a) Signature of PW-4 Ex.P6(b) Signature of PW-13 Ex.P7 Statement of PW-6 Ex.P8 Statement of PW-7 Ex.P9 Mahazar Ex.P9(a) Signature of PW-10 Ex.P9(b) Signature of PW-13 Ex.P9 Medical report of accused No.1 Ex.P9(a) Signature of PW-11 Ex.P10 First Information Report Ex.P.10(a) Signature of PW-12 LIST OF MATERIAL OBJECTS MARKED MO.1 Samsung Mobile MO 2 Nokia mobile MO 3 Yellow top MO 4 Yellow pant MO 5 Black petty coat slip MO 6 Under wear 35 Spl C.C.546/2014 MO 7 Pubic hair LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
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LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
*** 36 Spl C.C.546/2014 31.08.2016 Judgment pronounced in the open court, operative portion of which reads as under:-
ORDER Acting under Section 235(1) of Cr.P.C. accused No.1 is hereby acquitted for offences punishable under Sections 376, 342 and 506 of Indian Penal Code and Section 3 r/w Section 4 of Protection of Children from Sexual Offence Act, 2012 and accused No.2 is hereby acquitted for the offence punishable under Section 506 of I.P.C.
MO.1 and 2 mobiles (in PF No. 71/2014 PR 520/15). They are ordered to be confiscated to state after appeal period is over.
MO.3 to 5 (items No.1 to 3 in PF No.70/2014 PR 520/2015), MO 6 and 7 (Items No.1 and 2 in PF No.76/2014 PR 520/2015) and Items No.1 to 4 in PF 37 Spl C.C.546/2014 NO.69/2014 PR No.520/2015 are ordered to destroyed as worthless after appeal period is over.
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
38 Spl C.C.546/2014 MO.1 and 2 mobiles (in PF No. 71/2014 PR 520/15) are not claimed by any person. They are ordered to be confiscated to state after appeal period is over.
MO.3 to 5 (items No.1 to 3 in PF No.70/2014 PR 520/2015), MO 6 and 7 (Items No.1 and 2 in PF No.76/2014 PR 520/2015) and Items No.1 to 4 in PF NO.69/2014 PR No.520/2015 are ordered to destroyed as worthless after appeal period is over.