Bangalore District Court
State By Peenya Police vs A.S.Suresh on 26 December, 2016
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH-55)
Dated this the 26th day of December, 2016
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
Spl.C.C.No.232/2014
COMPLAINANT State by Peenya Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED A.S.Suresh,
Son of Anthony,
Aged 37 years,
No.18, Lakshminarayappa Building,
Anjandri Nagar, Near Eshwara Temple,
A.Y.R Layout, Shettihalli,
Bangalore-15.
(By Sri.Cockoo Delhi -Advocate)
1. Date of commission of offence 3.4.2014
2. Date of report of occurrence 9.4.2014
3. Date of arrest of accused 10.04.2014
4. Date of release of accused 06.09.2014
[bail]
5. Period undergone in custody 04 Months, 26 Days
by the accused
2 Spl CC No.232/2014
6. Date of commencement of 21.7.2015
evidence
7. Date of closing of evidence 25.11.2016
8. Name of the complainant Sri.Chandragupta Kumar-father of
the victim girl
9. Offences complained of Sec.354 of IPC and under
Secs. 5(m) r/w Sec.6 of POCSO
Act, 2012
10. Opinion of the Judge The accused is found guilty of
the offences punishable under
Sec.354 of IPC and under
Sec.5(m) r/w Sec.6 of POCSO
Act, 2012.
The accused shall undergo
rigorous imprisonment for a
period of 10 years and to pay a
fine of Rs.5,000/- for the offence
punishable under Sec.6 of
POCSO Act, 2012. In default of
payment of fine amount, the
accused shall undergo simple
imprisonment for a period of
Three Months.
The sentence imposed in lieu
of default of payment of fine
shall run consecutively.
3 Spl CC No.232/2014
JUDGMENT
Police Inspector, Peenya Police Station, Bangalore has submitted charge sheet in Crime No.256/2014 against the accused for the offences punishable Under Sec.354 of IPC and under Sec.5(m) r/w Sec.6 of POCSO Act, 2012.
2. The prosecution case briefly stated that:
The complainant by name Sri.Chandraguptha Kumar lodged a complaint as per Ex.P1 alleging that, his daughter-victim girl aged 4 years used to go for Tuition to the house of the accused wherein the wife of the accused by name Princy was giving tuition to the children. Accordingly on 3.4.2014, the Victim girl had gone to the tuition and on that day, the accused being the husband of Princy, took the Victim girl to Bedroom and by removing her clothes, molested her, inserted his finger into her genitals and thereby committed the sexual assault on the Victim girl. Hence, the complaint.
3. On the basis of the said complaint, the complainant Police have registered a case in Cr.No.256/2014 as per FIR-Ex.P7 for the offences punishable under Sec.354 of IPC and under Sec.8 of POCSO Act, 2012. Thereafter Investigating Agency commenced the investigation. The victim girl was sent for medical examination, statement of the witnesses recorded and the accused was secured on 10.4.2014. After completion of the investigation formalities, 4 Spl CC No.232/2014 charge-sheet has been filed for the offences punishable under Sec.354 of IPC and under Sec.5(m) r/w Sec.6 of POCSO Act, 2012.
4. The accused is on bail and he is represented by the counsel of his choice. After appearance of the accused before this court, the copies of the prosecution papers [charge-sheet] was given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5. After hearing learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in-office has framed the Charge on 9.8.2015 against the accused for the offences punishable under Sec.354 of IPC and under Sec.5(m) r/w Sec.6 of POCSO Act, 2012 and read over the charge to the accused in the language known to him. The accused pleaded not guilty and claimed trial.
6. The prosecution in order to bring home the guilt of the accused has examined 8 witnesses as PW1 to PW8 and got marked 8 documents as Exs.P1 to P8. No material objects are marked.
7. Now at this stage, it is necessary to mention that, the prosecution has not examined CW-5 and CW6 who are said to be the witnesses to the spot mahazar. This court has issued summons , warrants to CWs-5 and 6 and the summons and warrants returned with shara as "Addresses not traced out".
5 Spl CC No.232/2014Hence, they were not examined and dropped, by rejecting the prayer made by learned Public Prosecutor. Further, the prosecution examined 2 Additional witnesses who were not listed in the charge-sheet.
8. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C is recorded. The accused has denied the incriminating evidence found in the evidence of prosecution witnesses and his defence is that of total denial and he claimed that he is innocent and further stated that he does not know that the victim child comes to his house for tuition and further stated that he was not arrested near Shettihalli Bus stand, but, the complainant police telephoned him to come to the Police Station, so, he went to the Police Station and further stated that a false complaint has been lodged against him. But, the accused did not choose to lead any evidence in support of his defense.
9. Heard the learned Public Prosecutor and the learned counsel for the accused. Learned Public Prosecutor has relied on the following decisions:
(1) 2010 Crl.L.J 4283 [SC] Satpal Singh Vs. State of Haryana (2) 2009 Crl.L.J 4133 [SC] Rajinder Vs. State of H.P. (3) 2010 Crl.L.J 1655 [SC] Ram Singh Vs. State of H.P (4) AIR 2013 SC 3077 Md.Iqbal & Anr. Vs. State of Jharkhand (5) 2013 Crl.L.J 194 State of UP Vs. Munesh 6 Spl CC No.232/2014 (6) AIR 1996 SC 1393 State of Punjab Vs. Gurmit Singh and others.
(7) 2015 (3) Crimes 194 SC Rahul Mishra Vs. State of Uttarkhand and another.
(8) 2015(4) Crimes 246(SC) at Relevant Page No.248 Jodhan Vs. State of M.P (9) 2015(1) KCCR 513 (DB) High Court of Karnataka represented by The Registrar General Vs. Syed Mohammed Ibrahim (10) 1992 Crl.L.J 372 (Gujarat) Ramchit Rajbhar Vs. State of West Bengal.
(11) 1998 Crl.L.J 1947 Kajod Vs. State of Rajasthan (12) 2016(2) Crimes 134 (SC) Chaman and another Vs. State of Uttarkhand (13) (2003) 6 SCC 380 Thaman Kumar Vs. State of Union Territory of Chandigarh (14) AIR 2013 SC 3008 Ganga Singh Vs. State of Madhya Pradesh (15) AIR 2010 SC 1894 Utpal Das Vs. State of West Bengal.
(16) (2016) 3 SCC (Cri) 426 Ajay Kumar Singh Vs. Flag Officer, Commanding-in-chief and others.
(17) 2001 Crl.L.J 2548 (SC) or AIR 2001 SC 2075 State of Himachal Pradesh Vs.Gian Chand (18) 2012 Crl.L.J 3794 O.M.Baby [Dead] by LRs Vs. State of Kerala.
(19) 2006 SC 381 State of Himachal Pradesh Vs. Asha Ram.7 Spl CC No.232/2014
10. After hearing the arguments of the learned Public Prosecutor and the learned defence counsel and as per the Charge leveled against this accused, following Points do arise for my consideration are:
1. Whether the prosecution proves beyond reasonable doubt that on 3.4.2014 in between 5 P.M to 7.30 P.M., the accused by removing the clothes of the Victim girl, with an intention to commit sexual assault and thereby outraged her modesty and hence committed an offence punishable under Sec.354 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that the accused by inserting his finger into the vagina of the Victim girl, who is below the age of 12 years and thereby committed aggravated penetrative sexual assault and hence committed an offence punishable under Sec.5(m) r/w Sec.6 of POCSO Act, 2012?
3. What Order?
11. My findings on the above points are as under:
Point Nos.1 and 2 : In the AFFIRMATIVE Point No.3: As per the final order, for the following:
REASONS
12. POINT NOS. 1 AND 2:- Consideration of these two Points are based on the same facts and evidence and therefore, to avoid repetition, these two points are taken together for discussion.
8 Spl CC No.232/201413. According to the prosecution, that on 3.4.2014 in between 5 P.M., to 7.30 P.M., when the victim girl went to the house of the accused for tuition, the accused took her to bedroom, removed her inner wear and put his finger into her vagina and thereby committed aggravated penetrative sexual assault on the victim child. Hence, the accused has committed the offences as per the charge leveled against him.
14. The burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution has relied on the evidence of PWs-1 to 8. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Chandragupta Kumar-father of the victim girl Pw.2 Victim girl Pw.3 Hansukumari-mother of the victim girl Pw.4 Dr.Jnaneshwari who deposes about the medical examination conducted on the victim girl Pw.5 Arogyamma-Co-ordinator of SJPU, who deposes about the counseling done to the victim girl Pw.6 Dr.Urvashi who deposes about the medical examination conducted on the victim girl Pw.7 Dr.Femin who deposes about the medical examination conducted on the victim girl PW.8 Yathiraj.V.R-Police Inspector who deposes about the receipt of the complaint and further investigation into the matter.
Before appreciating the evidence, it is better to have a glimpse of the evidence given by all witness.9 Spl CC No.232/2014
15. PW1-complainant as well as the father of the victim girl deposes that, he knew the accused, the wife of the accused by name Princy used to conduct tuitions, as such, he[complainant] was also sending his daughter-victim girl to the tuition, at that time he has seen the accused, that on 4.4.2014, when he was in Gijani on his work, his wife telephoned him and told that, their daughter had pain in her genital area and when his wife enquired his daughter, his daughter told her that, the accused inserted his finger into the genital area of his daughter and caused pain, he told his wife to take her to the doctor, as such, his wife took his daughter to Eskay Health Care, after examination of his daughter, the doctor told that the genital area was red, that on 9.4.2014, he came back from Jigani and went to the Police Station and gave the complaint as per Ex.P1, on the next day morning at about 10-10.30 A.M., he[complainant] showed the house of the accused to the police and the accused was inside the house, he [complainant] showed the bedroom and the police conducted spot mahazar as per Ex.P2, thereafter the victim girl was sent for medical examination to Sapthagiri Hospital.
16. PW2-Victim girl and PW3- mother of the Victim girl deposes about the alleged incident, which are similar to the evidence of PW1.
10 Spl CC No.232/201417. PW4- Assistant Professor, Sapthagiri Institute of Medical Sciences and Research Centre Hospital, Bangalore deposes that on 10.4.2014, she received requisition from Police Inspector of Peenya Police Station through WPC for examination of the victim girl aged about 4 years, she was accompanied with her mother and was brought for medical examination on the history that somebody has put the fingers in her [victim girl] private part, on physical examination of the victim girl, there was no external injuries found on her body and there were no signs of recent forced sexual intercourse, in that regard, she has issued Certificate as per Ex.P4.
18. PW5-Co-ordinator, SJPU deposes that on 10.4.2014, the Peenya Police telephoned her and asked her to do counseling of the victim girl, she went to the Peenya Police Station, wherein, the victim girl and her mother were there, and in the presence of WPC, she did counseling of the victim girl, the victim girl told that, she used to go to the house of the accused, where his wife used to conduct tuition, there the accused took her to the bedroom and made her sleep and removed her inner wear and inserted his finger into her private part, at that time, the wife of the accused came there and she slapped on the accused, thereafter her tuition teacher consoled her and her mother came and took her from the said tuition class, again when she [PW5] questioned the victim girl, the victim girl removed her inner wear and shown the place where the accused had inserted his finger, she recorded the statement of the victim girl, the WPC has typed the statement made given by the Victim girl on computer, as per Ex.P5.
11 Spl CC No.232/201419. PW6- Doctor deposes that on 4.4.2014, she examined the victim girl aged about 3 years 11 months in Eskay Hospital, Bangalore, she was called by Dr.Femine, Pediatrician in Eskay Hospital, she went there and examined the victim girl with the history of Trauma Genitals, on examination of the lower part of the vagina of the victim girl, there was a red abrasion.
20. PW7-Doctor deposes that, on 4.4.2014, at about 5 P.M., the victim girl was brought by her mother with alleged history of trauma to genital by a stranger, happened twice over the last one week, as reported by her mother, 2nd episode was happened on the previous day , the child was complaining of burning sensation over the genital area, child was referred to Dr.Urvashi, she has given medical report that there was vaginal abrasion. She [PW7] has written the same in the prescription, marked as Ex.P3, that on 6.4.2016 at the request of the Police Inspector of Peenya Police Station, she has issued Medical certificate with regard the examination of the victim girl, as per Ex.P6.
21. PW8-Police Inspector deposes that, on 9.4.2014, at about 4 P.M., the complainant came to the Peenya Police Station and lodged written complaint, said complaint is registered in Cr.No.256/2014 as per FIR Ex.P7, he arrested the accused from Shettihalli Bus Stop and produced before the court, he conducted spot mahazar as per Ex.P2, he called Arogyamma- Co-ordinator, SJPU to the Police Station to do the counseling of the victim girl, 12 Spl CC No.232/2014 and he sent the victim girl for medical examination to Sapthagiri Hospital and obtained the medical report of the victim girl, obtained the birth certificate of the victim girl from the Eskay Hospital, after completion of investigation, he filed charge-sheet.
22. On the basis of the evidence of the aforesaid witnesses, learned Public Prosecutor submitted his arguments. He argued that the accused has committed the offences, as per the charge leveled against him and therefore learned Public Prosecutor submitted that the accused may be convicted.
23. On the other hand, the learned defence counsel argued that, there are many contradictions, omissions, improvements in the evidence of the prosecution witnesses and therefore their evidence cannot to be relied upon. Hence, learned defence Counsel submitted that, the accused is entitled to an acquittal.
24. After hearing the arguments of learned Public Prosecutor and learned defence Counsel, now it is necessary to scrutinize the evidence of the prosecution witness cautiously by considering their version in the cross-examination.
25. In this case, the learned defence Counsel would submit that:
. the allegations does not constitute the offences as alleged and the aggravated sexual assault does not attract at all, 13 Spl CC No.232/2014 . in the FIR, the case is registered under Sec.8 of POCSO Act, 2012 and under Sec.354 of IPC and at that time of filing the charge-sheet, Sec.6 of POCSO Act, 2012 included, . the IO has not properly done the investigation, as the children who comes for tuition not at all enquired by the IO and they were not made as witness, .the incident happened on 3.4.2014, but, complaint given on 9.4.2014, thereby there is delay in lodging the complaint, .the mandatory provisions i.e., Sec.24 of POCSO Act, 2012 i.e., recording of statement of a child not properly followed by the IO and thereby the recording of the statement of the child is hit by Sec.24 of the Act, .Ex.P3-Medical document not collected by the IO and it is directly produced before the court, . the history of sexual assault given at the time of medical examination by PW4 that somebody put the fingers i.e., stranger, . the accused used to go to his work in the morning and comes in the evening and IO has not collected any information about the timings of the work of the accused, 14 Spl CC No.232/2014 . further, the wife of the accused scold and slapped the victim girl as she did not do the homework and thereby accused has been falsely implicated.
26. On the aforesaid contradictions, inconsistencies, omissions, pointed out by learned defence Counsel, learned defence Counsel submitted that, the prosecution has not proved the guilt of the accused beyond reasonable doubt that the accused has committed the alleged offence.
27. On the other hand, learned Public Prosecutor argued that, in this case, the victim girl herself given evidence stating that, it is the accused who has committed the sexual assault on her by inserting his finger into her vagina. The evidence of the victim girl itself is sufficient to convict the accused. Further learned Public Prosecutor submitted that, there is presumption available under Sec.29 of the POCSO Act, 2012 and therefore, in view of the said presumption available, this court can hold that the accused has committed sexual assault on the victim girl.
28. I have gone through the provisions of Sec.29 of POCSO Act, 2012, which reads as under:
" Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections 3, 5, 7 and 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".15 Spl CC No.232/2014
29. Now, this court has to analyze the evidence of the victim girl and her version in the cross-examination, so as to accept her evidence as provided under Sec.29 of the Act. The sum and substance of the deposition of PW2 is that:
"She [PW2]used to go to the tuition in the evening at 5 P.M., to the house of Princy Miss and returning to her home by 7 P.M. The accused [she called as Suresh uncle] being the husband of Princy teacher took her to his bedroom, made her to sleep and removed her pant and he inserted his finger into her recesses organ and thereby she sustained pain and she wept, her Princy miss was in the hall teaching to children, when she [victim girl] cried, Princy miss came inside the bedroom and slapped the accused and thereafter in the evening her mother came and took her to the house, as she was suffering from pain in her urinary organ, she told her mother and her mother took her to Doctor".
30. The learned defence counsel during the course of arguments drawn the attention of this court with regard to the contradictions in the evidence of the victim girl-PW2. His arguments is that, the incident happened on 3.4.2014, but the complaint lodged on 9.4.2014 [Ex.P1]. As per the evidence of PW2, on the date of incident, she revealed to her mother about the incident, but, on the same day, neither complaint was lodged nor the victim girl was taken to the hospital. The victim girl was taken to the hospital on the next day i.e., on 4.4.2014. As per the Medical document- Ex.P3, history was given that, the victim was complaining of trauma to genital by a stranger, as reported by the mother of the victim girl. If this accused had committed said sexual assault, then, 16 Spl CC No.232/2014 the mother of the victim girl could have revealed the history before the Doctor that the accused has committed sexual assault on the victim girl, but, it is mentioned that, a stranger has committed the sexual assault. Therefore the learned defence counsel argued that, the evidence of PW2-victim girl cannot be taken into consideration, so as to convict the accused.
31. As a reply to the said arguments, learned Public Prosecutor argued that, it is true that in Ex.P3, it is mentioned about the history of sexual assault by a stranger. Only because the name of the accused is not revealed before the Doctor, it cannot be said that the accused has not committed the said act. In that regard learned Public Prosecutor has relied upon a decision reported in 1992 Cri.L.J 372, wherein it is observed that:
"Penal Code-Sec.376- Rape-Evidence and proof- Prosecutrix aged about 9-10 years disclosing name of accused in FIR lodged by her and to her parents- Medical evidence proving sexual act- Non-disclosure of name of accused before Doctors, is not fatal to prosecution.".
It is true, as submitted by the learned defence Counsel that the prosecutrix had not disclosed the name of the culprit before the Doctor. In the present case, the Victim girl was a tender aged girl or 4 years. She disclosed the name of the accused to her mother.
17 Spl CC No.232/201432. Having gone through the observations made in the aforesaid decision, which is squarely applicable to the present case. Though in the Medical document-Ex.P3, it is stated that, stranger has committed the offence, that cannot be considered as fatal to the case of the prosecution, in view of the observation made in the aforesaid decision. Thereby, the arguments canvassed by the learned defence counsel that, name of the accused not mentioned in Ex.P3, therefore, the accused has not committed any offence, is not sustainable.
33. Further learned defence counsel also argued that during the investigation, the Investigating Officer has not collected said Ex.P3, it is only during the course of trial, the complainant directly produced the said document before this court, therefore, the said document cannot be taken into consideration.
34. On the other hand, learned Public Prosecutor submitted that, though Investigating Officer has not collected said document during the investigation, as provided under Secs. 230 and 231 of Cr.P.C, the prosecution can make an application for summoning or production of any document or other things and the court shall proceed to take all such evidence, as may be produced in support of the prosecution.
18 Spl CC No.232/201435. In that regard, the learned Public Prosecutor has also relied upon a decision reported in 2015 (1) KCCR 513. I have gone through the said decision wherein it is observed that:
"Sec.230-Cr.P.C dealing with fixing the date for prosecution evidence enables the prosecution to compel the attendance of any witness or the production of any document or other thing. In other words, by virtue of this provision, the prosecution can even examine a witness who is not cited in the charge-sheet and produce a document, which is not furnished along with the police papers, for the first time, before the court during the trial. The said power is to be harmonized along with the provision contained in Secs.173(8) and 173(5) as well as Sec.209 (c) of Cr.P.C".
Therefore, the arguments canvassed by learned defence counsel that Ex.P3 was directly produced before this court, without collecting the same during the course of investigation and thereby no reliance can be made on the said document[Ex.P3] cannot be sustainable.
36. Further learned defence counsel brought to the notice of this court with regard to the very important aspect of non- compliance of Sec.24 of POCSO Act, 2012. Sec.24 of the Act deals with the procedures for recording the statement of the child. Sec.24(2) of the said Act provides that:
"Police officer while recording the statement of the child, should not be in uniform"19 Spl CC No.232/2014
The learned defence Counsel argued that, in the present case, the police officer who was in uniform present at the time of recording the evidence of the victim girl and therefore, the Investigating Officer has violated the very important provision of law and thereby, the statement of the victim girl cannot be considered. Further, the learned defence counsel pointed out the preamble of the victim girl, wherein it is clearly mentioned that:
"¦Ãtå ¥Éǰøï oÁuÉ ¦.L.²æÃ.©.Dgï.AiÀÄwgÁdÄ DzÀ £Á£ÀÄ £ÉÆAzÀ ¨Á¯Q ¥ÁæaPÀĪÀiÁj JA§ÄªÀªÀ¼À ºÉýPÉAiÀÄ£ÀÄß ºÀiqÀÄVAiÀÄ ¥ÉÇõÀPÀgÀÄ ªÀÄvÀÄÛ «±ÉõÀ ªÀÄPÀ̼À ¥ÉÇ°Ã¸ï ¥ÀsÉlPÀzÀ ¸ÀªÀiÁd ¸ÉêÀPgÀ ÁzÀ ²æêÀÄw DgÉÆÃUÀåªÀÄä gÀªÀgÀ ¸ÀªÀÄPÀëªÀĦÃtå ¥Éǰøï oÁuÉAiÀÄ°è PÀA¥ÀÇålgï£À°è ¢£ÁAPÀB 10/04/2014 gÀAzÀÄ zÁR°¹zÀ ºÉýPÉ".
37. As a reply to the said arguments, learned Public Prosecutor submitted that, Sec.24 of POCSO Act, 2012, it is only a procedural aspect, and even if the Investigating Officer, not complied the due procedure, while recording the statement of the victim child, benefit of violation cannot be given to the accused. Further learned Public Prosecutor argued that, lapses on part of prosecution, in criminal trials should not be seriously taken note-of so as to giving benefit of doubt to the accused.
38. In that regard, learned Public Prosecutor has relied upon the following aforesaid 2 decisions reported in, (1) 2015 (3) Crimes 193 (2) (2016) 3 SCC Crimes 426 20 Spl CC No.232/2014 I have gone through the said 2 decisions. In the 1st decision, it is observed that:
"Criminal trial-Investigation-Any omission on the part of the Investigating Officer cannot go against the prosecution.
In the 2nd decision, it is observed that:
"Criminal Trials-Prosecution- defective prosecution- lapse on the part of prosecution while proving incriminating evidence-Held, criminal trials should not be made casualty for such lapses in the investigation or prosecution".
Therefore the arguments canvassed by the learned defence counsel that the Investigating Officer violated the procedural aspect of Sec.24 of POCSO Act, 2012, cannot be considered and thereby the statement [Ex.P5] of PW2 cannot be relied upon, is not sustainable.
39. Further learned defence counsel submitted that there is delay in lodging the compliant. The incident happened on 3.4.2014, but, the complaint is given on 9.4.2014. As per Ex.P3, the mother of the victim girl disclosed the sexual assault, then the Doctor could have intimated the police immediately, but, the complaint was lodged on 9.4.2014. In that regard, during the course of cross- examination of PW1, question was put to him regarding delay in 21 Spl CC No.232/2014 lodging the complaint. PW1 deposes that, he was in building construction company at Jigani and he used to come to the house once in a week, that on 4.4.2014, when he was in his office, his wife telephoned to him, however, as there was prohibition in the company to take mobile inside the premises, he has seen missed call in the evening, immediately, he spoken to his wife and she disclosed the sexual assault on his daughter and he directed his wife to take her to the hospital and accordingly, his wife took the victim to Eskay Health care, the doctor in Eskay Health Care told that, parents are advised to report to the Police Station and lodge complaint against the alleged perpetrator and further, they told that report will come in 4 days later, he returned to Bangalore from Jigani on 9.4.2014 and thereafter he lodged the complaint.
40. Now the question is whether the said inordinate delay of 7 days suspects the doubt of the prosecution case?
41. Learned Public Prosecutor argued that delay in lodging the complaint will not affect the prosecution case. In that regard, he has relied upon the aforesaid following 3 decisions:
(1) 2010 Crl.L.J 4283 (2) 2001 Crl.L.J 2548 (3) AIR 2010 SC 1894 I have gone through the aforesaid 3 decisions. The sum and substance of the aforesaid 3 decisions are:22 Spl CC No.232/2014
"Delay in lodging FIR has to be considered with different yardstick- Delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the Police Station to lodge a complaint, In a tradition bound society prevalent in India, it would be quite unsafe to throw-out the prosecution case merely on the ground that, there is some delay in lodging the FIR".
And further as held in the decision reported in AIR 2010 SC 1894, "FIR does not constitute substantive evidence."
42. On going through Ex.P3-Medical Document, it is specifically mentioned that, abrasion over the genitals, burning sensation over the genitals and vaginal abrasion and parents advised to report to the Police Station. With regard to the delay in lodging the complaint, PW1 has clearly explained that, he was not in the house for the whole week i.e., from 3.4.2014 to 9.4.2014, when he returned to house he lodged the complaint. After going through the observations made in the aforesaid decisions, which are squarely applicable to the case on hand i.e., it is a case of sexual assault, under these circumstances, the explanation submitted by PW1 appears to be true and genuine and hence, the same is accepted and accordingly, the arguments canvassed by the learned defence counsel that there is delay in lodging the complaint 23 Spl CC No.232/2014 and this accused has not committed any offence, cannot be sustainable.
43. Further, learned defence counsel argued that, in this case, the Investigating Officer has not examined the witnesses who come to the tuition about 10 to 15 children. In that regard, learned Public Prosecutor has argued that, non-examination of children who attended the tuition will not affect the case of the prosecution. In that regard, he has relied upon the following aforesaid 2 decisions reported in (1) 2015 (3) Crimes 193 (2) (2016) 3 SCC Crimes 426 In so far as the observations aforesaid 2 decisions is concerned, already discussed in Para No. 38 of this Judgement and the same principles are also applicable in this context i.e., "Criminal trial-Investigation-Any omission on the part of the Investigating Officer cannot go against the prosecution"
AND "Criminal Trials-Prosecution- defective prosecution- lapse on the part of prosecution while proving incriminating evidence-Held, criminal trials should not be made casualty for such lapses in the investigation or prosecution".
.
24 Spl CC No.232/201444. Apart from that learned Public Prosecutor has brought to the notice of this court with regard to the evidence of victim girl-PW2. During the course of cross-examination of PW2, suggestion is put to her that, whenever she had been to tuition, all the days the accused would not be in the house. That suggestion is admitted by PW2. It is further suggested to her that, on the day when Princy Miss assaulted her, the accused was not in the house. That suggestion is denied by her. Further she has denied the suggestion that on the date of incident, the accused was not in the house and she also denied the suggestion that the accused did not do anything on her. It is further denied by PW2 that, as her mother tutored her to say that the accused committed sexual assault on her, she is deposing falsely before the court. Thereby on going through the evidence of PW2, during her cross-examination, she withstood her evidence deposed in her chief examination. Therefore, the arguments canvassed by the learned defence counsel that, the Investigating Officer has not examined those children to collect the evidence regarding, whether the accused was present on the date of incident in the house so as to commit the offence on the victim girl and it is serious omission on the part of the Investigating Officer, is not sustainable.
45. Further learned defence counsel argued that as the Princy teacher assaulted the victim girl, as she was not correctly doing her homework, false case is foisted against the accused.
25 Spl CC No.232/201446. As a reply to the said arguments, learned Public Prosecutor submitted that if at all the arguments canvassed by learned defence counsel taken into consideration that, the teacher Princy Miss beaten up the victim girl, then, the parents of the victim girl could have lodged complaint against the Princy teacher only, there was no occasion for the parents of the victim girl to file false case against this accused, who is the husband of said Princy teacher. Thereby, learned Public Prosecutor submitted that, absolutely there is no false implication of this accused in the present case. If really the complaint lodged due to the assault made by the Princy Miss, then the complaint would be against her only. The allegations of sexual assault can also be filed against a female. Therefore, learned Public Prosecutor argued that, in this case, there is no false implication of the accused by the prosecution. In that regard, learned Public Prosecutor relied upon the decision reported 1998 Crl.L.J 1947. I have gone through the said decision, wherein it is observed that:
"Sec.376-IPC- Rape-Sentence- Plea of false implication by accused- Untenable since parents of an unmarried minor girl would never implicate accused at the cost of honour of their daughter."
Therefore, the arguments canvassed by the learned defence counsel that, because Princy miss beaten the victim girl, false case is foisted against this accused, cannot be believable.
26 Spl CC No.232/201447. Further, the learned defence counsel argued that, there was dispute between the complainant and the accused with regard to a site and therefore, false complaint is lodged against the accused. In so far as dispute with regard to the site is concerned, no evidence is placed by learned defence counsel. Therefore, the said argument cannot be accepted.
48. Further, learned defence counsel argued that, the Investigating Officer during the course of investigation not examined the neighbourers wherein the accused is doing his work. According to the defence, the accused is a dhobi and he used to go to his work in the morning and he used to come in the evening. Therefore, the learned defence counsel argued that, the Investigating Officer had to enquire the neighbourers wherein the accused was doing his work to collect the evidence as to whether the accused had attended to his work or not on the date of the incident.
49. However, it is pertinent to note that as the accused took the defence that he was not in the house at the time of incident i.e., plea of alibi, it is on the part of the accused to prove the said aspect of plea of alibi. However, the accused has not placed any evidence to show that, as on the date and time of the alleged incident, he was not at all in the house and he was somewhere else. Moreover, as already discussed above, the victim girl has completely denied the 27 Spl CC No.232/2014 suggestion put to her that, on the date of incident, the accused was not in the house.
50. Now the question is whether the testimony of Victim girl-PW2 can be accepted by this court in the light of the arguments canvassed by the learned defence Counsel that, there is inordinate delay in lodging the complaint, before the Doctor, name of the culprit not disclosed, the IO has not properly conducted the investigation and was negligent?
51. In the present case on going through the deposition of the Victim girl, she was aged 4 years at the time of the alleged incident. She stepped into the witness box before this court and deposed abut the presence of the accused in the house on the date of the incident.
52. In so far as testimony of prosecutix is concerned, learned Public Prosecutor has relied upon the following aforesaid 8 decisions:
(1) 2009 Cri.L.J 4133 (2) 2010 Cri.L.J 1655 (3) 2013 SC 3077 (4) AIR 1996 SC 1393 (5) AIR 2013 SC 3008 28 Spl CC No.232/2014 (6) 2012 Cri.L.J 3794 (7) 2006 SC 381 (8) 2012 Crl.L.J 3794 I have gone through all the aforesaid 8 decisions. The sum and substance of all the aforesaid 8 decisions are:
"Testimony of prosecutrix- Inspires confidence- Sufficient to base conviction-Contradictions not sufficient to disbelieve her evidence".
Further, in the decision of AIR 1996 SC 1393, wherein it is observed that:
"Testimony of prosecutrix-Reliability-Investigating Agency not conducting the investigation properly or was negligent-cannot be a ground to discredit testimony of prosecutrix".
Further it is observed that:
"The prosecutrix had no control over the
Investigating Agency and the negligence of an
Investigating Officer could not affect the credibility of the statement of the prosecutrix".
53. On going through the evidence of the Victim girl-PW2, though she was cross-examined, nothing contrary is elicited during her cross-examination to discard or disbelieve her evidence. She categorically deposed that on the date of the incident, the accused was very much present in his house. Relying on the observations made in the aforesaid decisions and taking into 29 Spl CC No.232/2014 consideration the evidence of PW2-Victim girl, this court is of the opinion that, the evidence of PW2 can be accepted as trustworthy to believe. Therefore, the arguments canvassed by the learned defence Counsel that, the evidence of PW2 cannot be taken into consideration, is not sustainable.
54. Further the learned defence counsel argued that, in this case, the prosecution has not examined the woman police constable said to have typed the statement of the victim girl on computer. Therefore, learned defence counsel argued that, the statement of the victim girl is concocted by the Investigating Officer and the victim girl has not at all given any statement, which is marked as Ex.P5.
55. In this case, prosecution has examined PW5-Arogyamma, Co-ordinator of SJPU. She has given evidence that, she examined the victim girl and the woman police constable Smt.Shalini has recorded the said statement in computer. PW5 was cross-examined by the learned defence counsel. During the course of cross- examination, number of questions put to PW5, but, nothing worth elicited from the evidence of PW5 so as to disbelieve her evidence. In so far as the arguments canvassed by the learned defence Counsel that the woman police constable who typed the statement of the victim girl on computer, not examined by the prosecution is concerned, learned Public Prosecutor has relied upon the decision reported in 2016 (5) Crimes 134. I have gone through the said decision, wherein it is observed that:
30 Spl CC No.232/2014"Non-examination of writer of the FIR is of no significance".
PW5 being the Co-ordinator of SJPU recorded the statement of the victim girl as per the directions of the Police Inspector, as no contrary evidence elicited from the cross-examination of PW5, there is nothing to discard her evidence and therefore the evidence of PW5 is accepted with regard to the recording of statement of victim girl as per Ex.P5. Thereby, though the writer of the statement of the Victim girl as argued by learned Public Prosecutor and as observed in the aforesaid decision, is not fatal to the case of the prosecution.
56. Further the learned defence counsel argued that, in the evidence of PW4- Doctor Gnaneshwari who examined the victim girl on 10.4.2014, at the time of examination of the victim girl, the Victim girl had no external injuries, therefore, the learned defence counsel argued that, there was no external injuries found on the body of the victim girl and there was no infection on the genital area and further, she [PW4] admitted that there is possibility of infection, if anybody used the toilet, which is not that of hygiene and therefore, the learned defence counsel argued that, there is possibility that the victim girl sustained the vaginal infection due to using of unhygienic toilet. However the learned defence counsel has not elicited any evidence from the parents of the victim girl as also from the victim girl i.e., PWs-1 to 3 that the victim girl used unhygienic toilet and thereby she sustained injuries on her private 31 Spl CC No.232/2014 part and further it is also pertinent to note that during the course of cross-examination of PW2, suggestion is put to her that, there is toilet in the Princy Miss house and whenever there was urgency, the victim girl used the said toilet and said toilet is cleanly maintained, that suggestion is admitted by PW2. From the said suggestion, it discloses that, the toilet of Princy Miss house is cleanly maintained and further no evidence elicited that, the victim girl used unhygienic toilet and therefore the arguments canvassed by the learned defence counsel that the victim girl sustained injuries on her private part by using unhygienic toilet is not sustainable.
57. Further the learned defence counsel argued that no reliance can be placed on Ex.P3 and so also the evidence of PW7-Dr. Femin. His argument is that, when the Doctor of Eskay Health Care examined the victim girl on 4.4.2014, he could have informed the police, but, he did not inform the police. Further, Calpol Tablet prescribed for 3 days and in Ex.P3 it is written as no external injuries. Therefore, learned defence Counsel argued that, Ex.P3 cannot be believable. However on going through Ex.P3, it is written, "Abrasion over the genital area", therefore, the arguments of the learned defence counsel that, Ex.P3 cannot be relied upon, is not sustainable.
58. Further, the learned defence Counsel brought to the notice of this court with regard to the document marked as 32 Spl CC No.232/2014 Ex.P3(b). His argument is that, in Ex.P3(b), the injuries are not mentioned. It is true that, in Ex.P3(b), injuries not mentioned, but, it is written that, referred to Pediatric opinion and thereafter the Pediatrician examined the victim girl and Pediatrician referred the victim girl for Gynecological examination and after Gynecological examination, the doctor has written Ex.P3. Therefore, there is no contradictions in the evidence of PW7 so as to discard his evidence.
59. In this case, on going through the evidence of the complainant-PW1-father of the victim girl, he deposes about the incident, though he was cross-examined, nothing contrary elicited to disbelieve his evidence. The victim girl examined as PW2, her testimony is worthy to believe for the reasons discussed above, PW3-mother of the victim girl also deposed about the incident and she was also cross-examined, but, nothing worth is elicited to disbelieve her evidence. Further the prosecution examined PW4-Doctor who has deposed about the medical examination conducted on the victim girl, PW5-Co-ordinator of SJPU, PW6-Dr.Urvashi who has examined the victim girl on 4.4.2014 wherein PW6 has noticed that, there was vaginal injury i.e., red abrasion and she informed the mother of the victim girl to report the same to the police, PW7-Dr.Femin who also deposed about the examination of the victim girl by him on 4.4.2014 and further prosecution also examined PW8-Investigating Officer.
33 Spl CC No.232/201460. On going through the over-all evidence of PW1 to PW8, they categorically deposed about the prosecution case and supported the case of the prosecution. Nothing worth elicited from their cross-examination to discard their testimony and their evidence can be accepted so as to convict the accused.
61. Learned Public Prosecutor has submitted that, though there are some contradictions appeared in the evidences of the prosecution witnesses, those contradictions cannot be a ground to discard the evidence of Prosecution witnesses. In that regard, he has relied upon the decisions reported in (1) 2006 SC 381 (2) 2015(4) Crimes 246.
I have gone through the aforesaid 2 decisions, wherein it is observed that:
"The evidence of the prosecutrix is more reliable. Even minor contradictions are insignificant discrepancies in the statement of the prosecutrix, immaterial".
62. Further, in this case, though the accused had taken plea of alibi that, at the time of incident, he was not present in the house, further there is false implication due to the Princy Miss who is his wife beaten up the victim girl, as the victim girl was a school drop-out student and she was not doing her home work properly, 34 Spl CC No.232/2014 further, there was dispute with regard to the site between the accused family and the complainant and therefore, the accused has been falsely implicated in the present case, but, no evidence placed by the accused to prove his defence or else to disprove the story of the prosecution, therefore, the defence of the accused that he has been falsely implicated in the present case, cannot be accepted.
63. Learned Public Prosecutor further brought to the notice of this court to a decision reported in 2013 Cril.L.J 194. I have gone through the said decision, wherein it is observed that:
"Sec.376-IPC- It is violation of women's privacy which not only leads to physiological trauma but also attaches social stigma to victim-rape victims need special care-Rape cannot be treated only as a sexual crime, but it should be viewed as a crime involving aggression, which leads to the domination of prosecutrix".
64. On going through the evidence of PW1 to PW3, more particularly the evidence of PW2, she herself deposes that, the accused had committed the sexual assault on her and her evidence is accepted by this court, as trustworthy. The doctors have given evidence that, there was vaginal abrasion, PW5-Co-ordinator of SJPU deposes with regard to the statement of the victim girl, PW8-Investigating Officer deposes that, he received the complaint and conducted part of the investigation, sending FIR and therefore, their evidence are corroborated to each other and their evidence is 35 Spl CC No.232/2014 trustworthy to believe. Considering and accepting the evidence of the prosecution witnesses, the presumption available under Sec.29 of POCSO Act, 2012, which is not rebutted, this court is of the opinion that, the prosecution proved the guilt of the accused beyond all reasonable doubt that the accused has committed the offence as per the charge leveled against him. Accordingly, I answer POINT NOS.1 AND 2 IN THE AFFIRMATIVE.
65. POINT NO.3: In view of my aforesaid discussions, I proceed to pass the following ORDER The accused is found guilty of the offences punishable under Sec.354 of IPC and under Sec.5(m) r/w Sec.6 of POCSO Act, 2012.
[Dictated to the Stenographer partly and directly on the compute, corrections carried out then pronounced by me in the Open Court on this the 26th day of December, 2016).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
26.12.2016 HEARD REGARDING SENTENCE The accused is present. His counsel is also present. Learned Public Prosecutor is present. On hearing the accused personally, he submitted that he has two children and he 36 Spl CC No.232/2014 is the only bread earner in the family, he is having poor background, doing ironing job and therefore, he prays for taking lenient view in imposing the sentence.
On the other hand, the learned Public Prosecutor has submitted that the accused has committed heinous crime against a small child and he does not deserve any leniency in imposing sentence. Further he has relied upon the decision reported in AIR 2013 Supreme Court 3246 [State of Harayana Vs.Janak Singh] wherein it is observed that:
"Sentence bargaining not permissible in rape cases".
Hence, the learned Public Prosecutor prays for awarding the maximum sentence as contemplated under Sec.6 of POCSO Act, 2012".
Learned Public Prosecutor has also relied upon another decision reported in 2013 SC 2997, wherein it is observed that:
"Cases of this nature, the court has to look into not only the life of the victim of crime, but, also the society at large while considering the imposing of appropriate sentence"
In this case, the accused is found guilty of the offences punishable under Sec.354 of IPC and under Sec.5(m) r/w Sec.6 of POCSO Act, 2012.
On going through the provisions of Sec.6 of POCSO Act, 2012, it provides that:
37 Spl CC No.232/2014"Whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life and shall also be liable to fine".
Though the accused has been found guilty of the offences punishable under Sec.354 of IPC and under Sec.5[m] r/w Sec.6 of POCSO Act, 2012, on going through the provisions of Sec.42 of POCSO Act, 2012, which provides alternative punishment i.e., punishment which is greater in degree has to be considered and therefore, in this case, for awarding sentence, the offence under Sec.6 of POCSO Act, 2012 is taken into consideration, as the punishment provided for the offence under Sec.6 of POCSO Act, 2012 is greater in degree.
In view of the minimum punishment provided under Sec.6 of POCSO Act, 2012, this court cannot take any lenient view in imposing lesser sentence than the minimum sentence prescribed in the provision.
In so far as imposing fine is concerned, the accused himself submitted that he is a poor man having no income or any movable or immovable properties. The prosecution has not produced any documents/materials to show that, the accused is having sufficient income, movable and immovable properties and thereby he is capable of paying huge fine amount and to pay compensation to 38 Spl CC No.232/2014 the victim girl. Under these circumstances, in the absence of any materials placed with regard to the income of the accused and his capacity to pay the fine and the compensation amount, lenient view is taken in imposing the fine amount.
Considering the background of the accused i.e., he is poor and he is the only bread earner of the family, having 2 children, I proceed to pass the following:
SENTENCE The accused shall undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.5,000/- for the offence punishable under Sec.6 of POCSO Act, 2012. In default of payment of fine amount, the accused shall undergo simple imprisonment for a period of Three Months.
The sentence imposed in lieu of default of payment of fine shall run consecutively.
The period of detention undergone by the accused in judicial custody shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
Further, in so far as victim compensation, as provided under Sec.357A of Cr.P.C and Rule 7 of POCSO Act, 2012, is concerned, office is directed to call for Report from the complainant police with regard to the present status of the Victim 39 Spl CC No.232/2014 girl so as to recommend to the District Legal Service Authority, Bengaluru, for awarding compensation to the victim girl.
Office is directed to supply the free copy of this Judgment to the accused forthwith.
(Dictated to the Stenographer in the open court, corrections carried out and then signed by me on this the 26th day of December 2016).
[RAJESHWARI.N.HEGDE] LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Chandragupta Kumar CW1 21.7.2015
Pw.2 Prachi Kumari CW3 21.7.2015
Pw.3 Hansukumari CW2 21.7.2015
Pw.4 Dr.Jnaneshwari CW7 21.8.2015
Pw.5 Arogyamma CW4 8.10.2015
Pw.6 Dr.Urvashi Additional 13.1.2016
witness
Pw.7 Dr.Femin Additional 21.10.2016
witness
Pw.8 Yathiraj.V.R CW8 25.11.2016
Documents marked for the prosecution:
Ex.P1 Complaint dated: 9.4.2014
Ex.P1[a] Signature of PW1
40 Spl CC No.232/2014
Ex.P1(b) Signature of PW8
Ex.P2 Spot Mahazar
Ex.P2(a) Signature of PW1
Ex.P2(b) Signature of PW8
Ex.P3 Prescription of Eskay Health Care with regard to the
victim child dated: 4.4.2014 and 8.4.2014 Ex.P3(a) and Signatures of PW7 P3(c) Ex.P3(b) Second document affixed to Ex.P3 Ex.P4 Examination of victim Ex.P4(a) Signature of PW4 Ex.P4(b) Signature of PW8 Ex.P5 Counselling done by PW5 with regard to the victim child Ex.P5(a) Signature of PW5 Ex.P5(b) Signature of PW8 Ex.P6 Medical certificate of the victim child Ex.P6(a) Signature of PW7 Ex.P7 FIR Ex.P7(a) Signature of PW8 Ex.P8 Certified copy of the Birth Certificate of victim child Witness examined and documents marked for the accused: NIL.
LIV Addl., City Civil & Sessions Judge, Bangalore.41 Spl CC No.232/2014
26.12.16 Accused is present.
Judgment pronounced in open court:[ Vide separate detailed Judgment] The accused is found guilty of the offences punishable under Sec.354 of IPC and under Sec.5(m) r/w Sec.6 of POCSO Act, 2012.
Heard regarding sentence.
Sentence dictated in open court:[Vide separate detailed sentence] The accused shall undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.5,000/- for the offence punishable under Sec.6 of POCSO Act, 2012. In default of payment of fine amount, the accused shall undergo simple imprisonment for a period of Three Months.
The sentence imposed in lieu of default of payment of fine shall run consecutively.
The period of detention
undergone by the accused in
judicial custody shall be set-off
against the term of imprisonment
imposed on him, and the accused
shall undergo the remaining
sentence as provided under Sec.428
of Cr.P.C.
42 Spl CC No.232/2014
Further, in so far as victim
compensation, as provided under
Sec.357A of Cr.P.C and Rule 7 of
POCSO Act, 2012, is concerned,
office is directed to call for Report
from the complainant police with
regard to the present status of the
Victim girl so as to recommend to
the District Legal Service
Authority, Bengaluru, for awarding
compensation to the victim girl.
Office is directed to supply the
free copy of this Judgment to the
accused forthwith.
[RAJESHWARI.N.HEGDE]
LIV ADDL., CITY CIVIL
& SESSIONS JUDGE,
BENGALURU CITY.
43 Spl CC No.232/2014