Bangalore District Court
State By Mahalakshmi Layout Police vs Manojkumar.M on 13 June, 2019
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the, 11th day of June, 2019.
Present: SMT.R.SHARADA,B.A. M.L
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO.46/2014
COMPLAINANT: State by Mahalakshmi Layout Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: ManojKumar.M,
Son of Manjunath,
Aged 20 years,
Residing at No.30/4,
Sneha Nandini Apartments,
Dollar Colony Scheme,
Nandini Layout, Bangalore-96.
[By Advocate Sri. Tony Sebastian]
[The accused is in the judicial custody]
1. Date of commission of 5.11.2013
offence
2. Date of report of 05.11.2013
occurrence of the offence
2 Spl CC No.46/2014
3. Date of arrest of accused 06.11.2013. Since the date of his arrest i.e.,
from 6.11.2013 till date, the accused is in
the judicial custody
4. Date of commencement of 20.1.2016
evidence
5. Date of closing of evidence 9.3.2018
6. Name of the complainant Sri.Shanthkumar, complainant as well as
the father of the victim girl
7. Offences complained of Secs.376, 306 and 201 of IPC and
Secs. 5(l) and 6 of POCSO Act, 2012.
8. Opinion of the Judge Acting under Sec.235(1) of
Cr.P.C, I hereby acquit the
accused for the offence
punishable under Sec.201 of IPC.
Acting under Sec.235(2) of
Cr.P.C, I hereby convict the
accused for the offences
punishable under Sec.376 of IPC
and Sec.6 of POCSO Act, 2012,
Sec.306 of IPC.
3 Spl CC No.46/2014
JUDGEMENT
The Police Inspector, Mahalakshmi Layout police station has filed charge-sheet against the accused for the offences punishable under Secs.376, 306 and 201 of IPC and Secs. 5(l) and 6 of POCSO Act, 2012
2. It is the case of the prosecution that, the accused herein having Email ID introduced himself to the deceased [victim girl] of this case aged 14 years through Internet and Facebook, chatted with her, developed friendship with her by contacting her through Internet, Face Book and mobile phone, induced her that the accused was in love with the deceased, calling her as Darling, Sweet Heart etc., pretending that he was in deep love with her and on 4.10.2013 between 6 pm to 8.30 pm., the accused made the deceased to come to his residence situated at No.30/4, Sneha Nandini Apartment, Dollar Colony Scheme, Nandini Layout, Bangalore and committed rape/aggravated penetrative sexual assault on the deceased repeatedly knowingly that she was a minor and thereafter neglected her by saying the deceased that the accused was not loving her and he used her sexually for his sexual enjoyment, refused to marry her due to which the deceased was mentally disturbed and on 5.11.2013 at about 5.15 P.M., in her residence bearing No.655, 2nd floor, 4th cross, Mahalakshmi Layout, coming with the jurisdiction of Mahalakshmi Layout police station, because of the abatement caused by the accused, the deceased committed suicide. Thereafter the accused after coming to know that the deceased committed suicide by hanging herself, knowing that he [accused] was the reason for the suicide of deceased, made 4 Spl CC No.46/2014 the messages exchanged between himself and the deceased in the face book and mobile phone and also the phone calls to disappear with an intention of screening himself [accused] from the legal punishment. Hence, initially the complainant who is none other than the father of the deceased/victim girl, lodged a complaint with the complainant police as stated above and on the basis of the said complaint, the complainant police have registered a case against the accused in Cr.No.354/2013 for the offences punishable under Secs. 376, 306 and 201 of IPC and Sec.4 of POCSO Act, 2012 and continued with the investigation. During the course of investigation, the accused was arrested, statements of the witnesses were recorded and after completion of all the investigation formalities, the Investigating Officer has filed charge- sheet against the accused which is numbered as Spl CC No.46/2014 for the offences punishable under Secs.376, 306 and 201 of IPC and Secs. 5(l) and 6 of POCSO Act, 2012.
3. During the course of investigation, the accused was arrested on 06.11.2013 and he was remanded to the judicial custody. Since the date of his arrest i.e., from 6.11.2013 till date, the accused is in the judicial custody. Thereafter copies of the charge-sheet were furnished to the accused under Sec.207 of Cr.P.C, Charges were framed and read over and explained to the accused, to which, the accused pleaded not guilty and claims to be tried. Accordingly, summons issued to the charge-sheet witnesses.
5 Spl CC No.46/20144. The prosecution has examined as many as 31 witnesses as PWs-1 to 31 and got marked as many as 93 Exs.P1 to P93 documents, besides marking MOs-1 to 11. Thereafter Statement of the accused recorded under Sec.313 of Cr.P.C. The accused has denied all the incriminating evidence told to him and he has got examined 2 witnesses as DWs-1 and 2 and got marked Exs.D1 to D3 on his behalf.
5. Heard the arguments of the learned Public Prosecutor and the learned counsel for the accused. The learned counsel who is assisting to the prosecution has submitted List of Authorities in support of the arguments addressed by the learned Public Prosecutor. The learned counsel for the accused has also submitted written-arguments along with Memo of Citations. On perusal of the oral and documentary evidence, at this stage, following Points arise for my consideration:
1. Whether the prosecution proves that, the accused herein having Email ID introduced himself to the deceased [victim girl] of this case aged 14 years through Internet and Facebook, chatted with her, developed friendship with her by contacting her through Internet, Face Book and mobile phone, induced her that the accused was in love with the deceased, calling her as Darling, Sweet Heart etc., pretending that he was in deep love with her and on 4.10.2013 between 6 pm to 8.30 pm., the accused made the deceased to come to his residence situated at No.30/4, Sneha Nandini Apartment, Dollar Colony Scheme, Nandini Layout, Bangalore and committed rape/aggravated penetrative sexual assault on the deceased repeatedly knowingly that she was a minor, thereby the accused has committed the offences punishable under Sec.376 of IPC and 6 Spl CC No.46/2014 for the offence as defined under Sec.5(l) r/w Sec.6 of POCSO Act, 2012?
2) Whether the prosecution further proves that, on the above said date time and place committed rape/aggravated penetrative sexual assault on the deceased /victim girl and thereafter the accused neglected the deceased by saying the deceased that the accused was not loving her and he used her sexually for his sexual enjoyment, refused to marry her due to which the deceased was mentally disturbed and on 5.11.2013 at about 5.15 P.M., in her residence bearing No.655, 2nd floor, 4th cross, Mahalakshmi Layout, coming with the jurisdiction of Mahalakshmi Layout police station, the accused abetted the deceased to commit suicide and she committed suicide, thereby the accused has committed an offence punishable under Sec.306 of IPC?
3) Whether the prosecution further proves that, on the said date, time and place, after abetting the deceased/victim girl to commit suicide and the deceased committed suicide and thereafter the accused came to know that he [accused] was the reason for the suicide of deceased, made the messages exchanged between himself and the deceased in the face book and mobile phone and also the phone calls to disappear with an intention of screening himself [accused] from the legal punishment, thereby the accused has committed an offence punishable under Sec.201 of IIPC?
4) What Order?
6. My findings on the above points are as under:
Point Nos.1 and 2: IN THE AFFIRMATIVE Point No.3: IN THE NEGATIVE Point No.4: As per the final order, for the following:7 Spl CC No.46/2014
REASONS
7. POINT NOS.1 AND 2:- Since these Points are interlinked, taken up for common discussion in order to avoid repetition of facts.
8. The learned Public Prosecutor during the course of arguments submitted, the prosecution has proved the case against the accused beyond all reasonable doubt. Further submtie that, the prosecution has totally examined 31 witnesses, out of them, the evidence of PW1/complainant/father of the deceased, the evidence of the mother of the deceased who is examined as PW2 and the evidence of PWs- 3, 4, and 5 who are the relatives and known persons to PW1 have supported the prosecution case. Likewise, PWs-7 and 8 who are the brothers-in-law of PW1 also supported the evidence of PW1 with regard to committing of suicide by the deceased. It is also the submission that, PW9 though partially turned hostile to the prosecution case, but at the time of cross-examination he has clearly stated that, he has seen the accused in the company of the deceased/victim girl who eloped the victim girl by telling that he [accused] loves her and committed the offence of rape on her. Likewise, the evidence of other witnesses i.,e Medical Officer who has examined the accused and who conducted post-mortem on the dead-body of the deceased, the evidence of police personnel, technical witnesses and also the evidence of the Investigating Officer supports the case of the prosecution. Of course, some of the witnesses though have totally turned hostile to the prosecution case and even they failed to identify the accused who was present before the court, but, only on 8 Spl CC No.46/2014 that ground, the entire evidence of the prosecution cannot be brushed-aside. The counsel who was assisting the learned Public Prosecutor as per the orders of this court, with the permission of the court has submitted List of Authorities before this court in support of the arguments addressed by the learned Public Prosecutor, which are as follows:
(1) AIR 2017 Supreme Court 2161 held between Mukesh and another Vs. State of NCT of Delhi and Vinay sharma and another Vs. State of NCT of Delhi.
(2) (2013) 16 Supreme Court cases 640 held between Rajiv Kumar Vs. State of Haryana.
(3) 2013 Crl.L.J 2595 Supreme Court held between Shankar Krishnarao Khade Vs. State of Maharashtra.
(4) 2012 (1) G.L.H 695 held between State of Gujarat Vs. Piyush Mohanlal Gandhi.
(5) 2012 Crl.Law Journal 3068-SC held between Munna Kumar Udaya Alias Munna Udaya Vs. State of A.P. (6) AIR 2011 SC 3056 held between Arun Kumar Agarwal Vs. State of M.P and others.
(7) AIR 2006 SC 2568 held between State of Tamil Nadu vs. Ravi alias Nehru.
(8) 2005 Crl.L.J 4365 held between State of M.P Vs. Parasram.
(9) (2004) 3 SC Cases 106 held between Dastagiri Sab and others Vs. State of Karnataka, (10) (2003) Crl.L.J 4920 held between Sudansu Shekar Sahoo Vs. State of Orissa.9 Spl CC No.46/2014
(11) 2012 Crl.L.J 259 held between Sucha Singh Vs. State of Hariyana.
(12) 2012 Crl.L.J 65 held between Bombay High Court Vasant Bagawati Patil Vs. State of Maharashtra.
(13) 2007 Crl.L.J 803 held between Delhi High Court Mohammad Alam Vs. State of NCT of Delhi.
(14) 2006 Crl.L.J 353 held between Uttarkhand/Uttaranchal High Court-Rupa Singh-Vs. State of Uttaranchal.
(15) 2006 Crl.L.J 4454 held between Madhyapradesh High Court-State of M.P-Vs. Kalyan Singh.
(16) 2006 Cri.L.J 3528- Chattish Garh High Court-Chandan Swamy Vs. State of Chattish Garh.
(17) 2006 Crl.L.J 3491 held between Rajasthan High Court-
Dhani Ram and another Vs. State of Rajasthan.
(18) 2006 Crl.L.J 202 held between Bombay High Court- Vajjnath Vs. State of Maharashathra (19) 2005 Crl.L.J 307 Jammu and Kashmir High court held between Mohamman Yaseen Vs. State.
(20) APH 2004 818-State of Andhra Pradesh-Sheik Ibraham Vs. State of A.P. (21) 1999 Crl.L.H 4525-Delhi High Court-C.P.Mallik & others Vs. State.
9. The learned Public Prosecutor further referring to the defence evidence including the documentary evidence and points raised by the defence in their arguments concluded that, the evidence adduced by the prosecution has not been impeached and the defence has failed to rebut the evidence of the prosecution 10 Spl CC No.46/2014 witnesses and presumption that arose under Sec.29 of the POCSO Act, 2012, and further argued that, the prosecution evidence withstood the challenge of the test of cross-examination of the defence and further submitted the decisions relied by the prosecution are aptly applicable to the case on hand, thereby the accused has to be convicted. With all these, the learned Public Prosecutor submitted to convict the accused for the offences punishable under Secs. 376, 306 and 201 of IPC and Secs. 5(l) and 6 of POCSO Act, 2012 for which he has been charged in the interest of justice and equity.
10. During the course of arguments, the learned defence counsel submitted that, the prosecution has failed to prove the guilt of the accused beyond all reasonable doubts for the alleged offence punishable under Secs. 376, 306 and 201 of IPC and Secs. 5(l) and 6 of POCSO Act, 2012, because there are no eyewitnesses to the alleged incident and the prosecution miserably failed to prove the place of occurrence as per charge-sheet filed by it. This is the grave lacuna on the part of the prosecution, only on this ground, the accused is entitled for acquittal. Further he submitted that, PW1 and PW2 are the parents of the deceased/ victim girl PW1 has lodged a complaint before the police as per Ex.P1 but the evidence given by him do not tally with the contents of Ex.P1, though PW2 has supported the evidence of PW1 before the court, but both are hear-say witnesses thereby their evidence cannot be totally relied upon to bring home the guilt of the accused. PWs-3, 7 and 8 are the relatives of PW1 they have deposed only about the suicide committed by the deceased/victim 11 Spl CC No.46/2014 girl hence their evidence do not have much consideration. PWs-4, 5 and 15 are the tenants. PW15 is the wife of PW4 they are also hear say witnesses, thereby the evidence given by them do not come to the aid of the prosecution to bring home the guilt of the accused. However, their evidence supports that they have seen the Death Note of the deceased which is marked as Ex.P11. Pw6 is the witness to the Mahazar -Ex.P18 but this witness totally turned hostile to the prosecution case the evidence of this witness did not serve any purpose to the case of the prosecution. PW10 is the witness to maahzar-Ex.P34, who deposed about the seizure of MOs-9 and 10 under Ex.P34. PWs-11 and 12 are the circumstantial witnesses and PW13 is the friend of the accused and PWs-17 to 19 are the friends of the deceased/victim girl they have totally turned hostile to the prosecution case. Hence, looking into the evidence of PWs-11, 12, 13, 17 to 19, it is clear that, it will not helpful to bring home the guilt of the accused. Pw14 is the Principal of the College in which the accused was studying, PW21 is the Head Mistress of the School, in which the deceased/victim girl was studying, but this witness failed to identify the hand writing in Ex.P11 i.e, the Death Note . PW22 is the Doctor who conducted Autopsy on the dead body of the deceased and also deposed about the physical, medical examination conducted on the accused. Pw23 is the owner of the house in which PWs-1 and 2 were residing. The evidence of these witnesses also not sufficient to link the accused to the alleged crime. PWs-16, 24, 25 and 26 are the police constables who have deposed about the duties discharged by them. The evidence given by these witnesses are mechanical, hence, this evidence cannot be linked to the crime 12 Spl CC No.46/2014 allegedly committed by the accused. PW29 is the Investigating Officer, PW27 is the technical person and their evidence is to be carefully analyzed because these are the prime witnesses on which the prosecution has depended upon very much to connect the accused to the alleged crime. PWs-30 and 31 are the formal witnesses. Considering the facts and circumstances of the case and also the evidence produced before the court, it is clear that the prosecution has miserably failed to bring home the guilt of the accused beyond all reasonable doubt. Apart from t hat, the defence has examined 2 witnesses as DWs-1 and 2 and got marked 3 documents as Exs.D1 to D3. On perusal of the evidence of DWs-1 and 2, it is clear that, on the alleged date of incident, the family members of the accused have not gone out of the house and they were very much present in the house. Such being the situation, as per the allegations made by the prosecution that the accused invited the deceased/victim girl to his house and committed aggravated penetrative sexual assault on her, cannot be believed. Further in support of the arguments, the learned defence counsel relied upon the following decisions reported in:
(1) Rajesh Vs. State of Haryana dated: 18.1.2019 in Criminal Appeal No.93/2019 arising out of SLP (Cri.) No.8667/2016.
(2) Chithresh Kumar Chopra Vs. State [Government of NCT Of Delhi], reported in (2009) 16 SCC 605.
(3) Ramesh Kumar Vs State of Chhattishgar reported in (2001) 9 SCC 618.13 Spl CC No.46/2014
And submitted that, according to the prosecution, Ex.P11 is the Death Note upon which it is alleged against the accused that, he had abetted the deceased/victim girl to commit suicide. But conviction under Sec.306 of IPC is not sustainable only on the allegation of harassment without there being any positive action proximate to the time of occurrence on the part of accused, which led or completed the person to commit suicide. A person who is said to have abetted commission to suicide must have played an active role by an act of instigating or by doing certain acts to facilitate the commission of suicide. Because as per the provisions under Sec.306 of IPC, essential ingredient is instigation and in furtherance of instigation, the deceased/victim have got abetted to commit suicide himself/herself. Question as to what is the cause of a suicide has no easy answer, because, suicidal ideation and behaviors in human beings are complex and multifaceted. Different individuals in the same situation react and behave differently because of the personal meaning they add to each event, thus amounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Thereby each of these essentials are to be carefully scrutinized.
11. Further, the learned defence counsel continuing his arguments regarding offences punishable under Sec.201 of IPC relied upon the other decisions in support of his arguments referred to the decisions are herein under:
(1) Dinesh Kumar Kalidas Patel Vs. State of Gujara reported in (2018) 3 SCC 313.14 Spl CC No.46/2014
(2) Sukhram Vs. State of Maharashtra reported in (2007) 7 SCC 502.
(3) V.L.Tresa Vs. State of Kerala reported in (2001) 3 SCC 549.
And submitted that, mere suspicion is not sufficient to bring him the guilt of the accused for the offence punishable under Sec.201 of IPC. Because, the said provision is an independent provision thereby the prosecution has to prove that the offence was committed, person charged with offence had knowledge or reason to believe that offence was committed, said person has caused disappearance of evidence and such act of disappearance was done with intention of screening offender from legal punishment, thereby mere suspicion is not sufficient, it must be proved. But, in the case on hand, the prosecution has miserably failed to prove the essential ingredients of Sec.201 of IPC and there is no iota of evidence to bring home the guilt of the accused to connect the offence under Sec.201 of IPC. With these, the learned defence counsel prays to take into consideration of all the evidence placed before the court both oral and documentary and also proposition of law and to acquit the accused, in the interest of justice and equity.
12. With this arguments of the learned Public Prosecutor and the learned defence counsel, I shall now take up the prosecution evidence in order to evaluate the same to find out whether the prosecution has proved the guilt of the accused or 15 Spl CC No.46/2014 not in this regard, the prosecution in proof of its case has in all examined 31 witnesses as PWs-1 to 31 and got marked 93 documents as per Exs.P1 to P93 besides marking MOS-1 to 11. The accused in his defence examined 2 witnesses as DWs-1 and 2 and got marked 3 documents as Exs.D1 to D3. The defence of the accused besides being total denial of the prosecution case has also set up a theory that it was one Manojkumar Chiranthan who had contact with the deceased/victim girl that the deceased/victim girl was in continuous touch with that Manojkumar Chiranthan and that the prosecution exonerating that Manojkumar Chiranthan have implicated the present accused.
13. In order to understand the process of trial and to know the nature of the evidence given by each of these witnesses and its relevancy to bring home the guilt of the accused, I would like to note in brief the nature of evidence spoken to by the prosecution witnesses PWs-1 and 2 are the parents of the decease/victim girl. PWs-3, 7 and 8 are the relatives of PWs-1 and 2. PWs-4 and 5 are the tenants of the same building where PWs-1 and 2 were residing at the time of the incident. PW6 is the witness deposed to had taken facebook copies and given to the Investigating agency. PW9 is the friend of the accused. PW10 is the witness to the seizure mahazar Ex.P34 wherein under Ex.P34, certain material objects including the mobiles, a Note book as per Ex.P10 were seized said to be at the instance of the accused. PWs-11 and 12 are the circumstantial witnesses who have turned hostile to the prosecution case. PW13 is the aunty of 16 Spl CC No.46/2014 the accused with whom he was residing. PW14 is the Principal of the College wherein the accused was studying, PW21 is the Head Mistress of the school wherein the deceased/victim girl was studying. PW15 is the wife of PW4 was residing in the building where PWs-1 and 2 stayed. PW16 is a police official deposed to had carried the seized articles seized in this case to FSL Lab, Hyderabad. PWs-17 to 19 are the classmates of the deceased/victim girl have turned hostile. PW20 is the Hand writing expert deposed to had examined the admitted and disputed handwritings and given the opinion. PW22 is a doctor deposed to had conducted post mortem over the dead body of the deceased/victim girl and also physical examination of the accused. PW23 is the owner of the building where the victim girl had committed suicide. Pw24 is a police official is a formal witness. PW25 is another police official deposed to had traced the accused and produced before the Investigating Officer. PW26 another police official spoken to had carried the FIR. PW27 is a computer operator deposed to had taken the copies of MOs-2 and 10. PW28 is an Assistant Government Examiner-cum- Scientist deposed to had subjected MOs-2 and 10 the mobiles to test for retrieving the messages. PW30 is an Engineer deposed to had prepared a spot sketch as per Ex.P35. PW31 is another police official stated that at the instance of the Investigating Officer, he had obtained certain documents like examination answer paper of the deceased/victim girl and submitted to the Investigating Officer. PW29 is the Investigating Officer of this case.
17 Spl CC No.46/201414. The prosecution has also produced the following documents in support of its case: Ex.P1 is the complaint dated 5.11.2013 lodged by the complainant/PW1 who is none other than the father of the deceased/victim girl, Ex.P2 to P9 are the photos, Ex.P10 is the Note book of the deceased, Ex.P11 is the Death note of the deceased, Ex.P12 is the Note book of the accused, Ex.P13 is the Notice given to Panchas, Ex.P14 is the Spot Mahazar, Ex.P15 is the seizure Mahazar, Ex.P16 is the notice to panchas, Ex.P17 is the Post Mortem Report of the deceased/victim girl, Ex.P18 is the Seizure Mahazar, Ex.P19 is the sample seal, Ex.P20 is the Notice to Panchas, Ex.P21 is Green colour parcel cover, Ex.P22 to P29 are the Face Book printouts, Ex.P30 is the phone message printout, Ex.P31 is the Statement of PW6, Ex.P32 is the statement of PW9, Ex.P33 is the notice to panchas, Ex.P34 is the Seizure Mahazar of property, Ex.P35 is the Statement of PW11, Ex.P36 is the Statement of PW12, Ex.P37 and Ex.P38 are the Mobile Sim applications, Ex.P39 is the copy of Photo ID PW13, Ex.P40 is the Relevant portion of statement of PW13, Ex.P41 is the Police requisition letter, Ex.P42 is the Letter written to the police inspector from Principal, Sheshadripuram commerce college enclosing 4 documents, Ex.P43 is the Study certificate of the accused, Exs.P44 to P47 are the attendance details of the accused, Ex.P48 is the Character certificate of the accused, Ex.P49 is the Statement of PW15, Ex.P40 is the Relevant statement of PW15, Ex.P51 is the Acknowledgement issued from CFSL, Ex. P52 is the Report of PW16, Ex.P53 is the Passport issued to PW16, Ex.P54 is the statement of WP17, Ex.P55 is the statement of PW18, Ex.P56 is the Statement of 18 Spl CC No.46/2014 PW19, Ex.P57 is the FSL Report, Ex.P58 is the opinion report of PW20, Ex.P59 is the Sample seal, Ex.P60 is the study certificate of the deceased/victim girl, Ex.P61 to P63 are the attendance certificate of the deceased/victim girl, Exs.P64 and P65 are the Answer sheets pertaining to the deceased/victim girl, Ex.P66 is the relevant portion of statement of PW21, Ex.P67 is the FSL Report, Ex.P68 is the Sample Seal, Ex.P69 is the Post Mortem Report of the deceased/victim girl, Ex.P70 is the Medical Report of the accused, Exs.P71 and P72 are the Reports of PW24, Ex.P73 is the Passport, Exs.P74 and P75 are the Acknowledgements issued by FSL, Ex.P76 is the Report of PW25, Ex.P77 is the Passport, Ex.P78 is the Certificate of CFSL dated: 18.5.2017, Ex.P79 is the Examination Report issued by CFSL, Ex.P80 is the CD, Ex.P80 is the Report given by PW31 regarding collecting of the documents containing the writing of the deceased, Ex.P81 is the FIR, Ex.P82 is the Acknowledgement for having handed over the dead body of the deceased, Ex.P83 is the voluntary statement of the accused, Ex.P84 is the Call details record of the deceased/victim girl, Ex.P85 is the Key Plan, Ex.P86 is the Letter written to PW29 from Vodafone South Limited, Ex.P87 is the Report given by Prakash, HC, 3542 for collecting over the articles from FSL, Hyderaabad, Andhra Pradesh State, Ex.P88 is the passport, Ex.P89 is the Requisition given to the Head Mistress of Little Lillys English High School, Mahalakshmi Layout, Bangalore wherein the deceased was studying, Ex.P90 is the Requisition given by PW29 to the Assistant Executive Engineer, PWD for preparing the plan of the alleged place of incident wherein the deceased committed suicide, 19 Spl CC No.46/2014 Ex.P91 is the Official Memorandum, Ex.P92 is the Report given by PW24 for having taken the sealed articles of this case to FSL, Madivala, Bangalore for chemical examination and Ex.P93 is the Letter dated: 3.1.2014 written by Assistant Executive Engineer, PWD, Bangalore for having prepared the plan. [Exs.P90 to P93 are re-marked as per the Order dated: 3.5.2019]
15. On the other hand, the learned defence counsel in support of his defence has examined 2 witnesses as DWs-1 and 2. DWs-1 and 2 who are none other than the uncle and nephew of the accused respectively and got marked 3 documents as Exs.D1 to D3. Ex.D1 and Ex.D2 are the Phone call details and Ex.D3 is the Rental Agreement.
16. With this back ground of the evidence given by the above witnesses, I shall take up the evidence of each of these witnesses to evaluate the same to find out the merits of the prosecution case.
17. PW1 as stated above is the father of the deceased/victim girl deposing to his family history in brief given a complaint to the police as per Ex.P1. On 5.11.2013 on the day when his daughter/victim girl committed suicide was aged about 14 years and plus, was studying in 9th standard in a school nearby his residence stated that on 1.11.2013, his daughter/victim girl was in a depressed mood when he questioned her the victim girl stated to had told him that one person by name Manoj Kumar was contacting her through 20 Spl CC No.46/2014 Face Book for which he had advised her not to respond and ignore it and in the witness box he has stated that on 5.11.2013 when he had been to his duties, his wife who was also an employee had left their daughter/victim girl and her son in the house of their relatives after having got them treated for some ailment, but on that day evening he [PW1] received a phone call from his wife that their daughter/victim girl had committed suicide and he immediately rushed to his house by 7.15 p.m., and found that his daughter was got released from the hanging hook was laid on the cot and she was found dead. It is further stated that, he found a death note written by his daughter/victim girl by her side and on going through the same, he found that one Manoj Kumar who had developed intimacy with his daughter/victim girl sexually abused the victim girl on more than one occasion and therefore that Manoj Kumar since cheated the victim girl of neglecting her, his [PW1] daughter/victim girl has committed suicide. This witness spoken to in detail in the witness box repeating the contents of the Death Note which is marked as Ex.P11. The witness further deposed to the police seizing certain books containing the handwritings of the deceased/victim girl, seizure of the death note of the deceased/victim girl.
18. PW2 is the mother of the deceased/victim girl has also in her evidence has stated that, on the date of death of her daughter, her husband/PW1 had gone to his work on that day the deceased/victim girl had complained of her ill-health. Therefore, she[PW2] got medicines to her, then she took the deceased/victim girl and their son to their relatives house, left them and gone to 21 Spl CC No.46/2014 her duty. On that day on 5.11.2013, in the evening when she returned home she found that the door of their house was closed from inside despite knocking the door not opened. Then herself and the neighbours force opened the door and she found that her daughter had committed suicide by hanging. She [PW2] also stated that they got the body of the deceased down and she also noticed a Death Note left behind by her daughter as per Ex.P11 and the witness also stated that the victim girl on 1.11.2013 was upset when questioned her, she had told them about one Manoj Kumar attempted to contact her through Face Book. With this, the witness further spoken to the contents of Death Note- Ex.P11 which I do not wish to elaborate in length as the Death Note itself will be taken into consideration in the following paragraphs.
19. PW3 is the brother-in-law of PW1. PW7 is the elder brother of PW2 and brother-in-law of PW1. PW8 is another elder brother of PW1 and brother-in-law of PW1. PWs-3 and 8 have stated that on 5.11.2013, they received information about the death of the victim girl and on that information, they have deposed to had gone to the house of PWs-1 and 2 and found that the victim girl had committed suicide with a Death Note and stated to the further process of investigation by the police. PW8 in his further evidence has stated as if his sister-PW2, 20 days prior to this incident had told him that one Manoj Kumar was in contact with the victim girl in connection of which he had advised the victim girl not to have such attitude. But, in the cross-examination he has stated that his sister had not said so 22 Spl CC No.46/2014 prior to the death of the victim girl, but given the name of Manoj Kumar for the first time in the Hospital. Even this witness in his cross-examination has admitted that he had not stated so, in his statement given to the police. Similarly PW7 though deposed to had come to know of the victim girl with Manoj Kumar but he has not fully supported the prosecution case as such he has been treated as hostile by the learned Public Prosecutor and subjected for cross-examination. But the witness has stated that, he was informed by PW2 about the victim girl being in touch with Manoj Kumar in the month of September-2013. Thus, on going through the evidence of PWs-3, 7 and 8 it is not possible to concur with the prosecution that those 3 witnesses had come to know about the alleged relationship between the deceased/victim girl and the accused. Their evidence make it clear that they only on the death of the victim girl after having received the death message and the death note, they came to know the relationship of the victim girl and the accused. Thus the evidence of these 3 witnesses except for the fact that they saw the suicide of the victim girl and realized about the death note had no knowledge with regard to the friendship of victim girl and the accused.
20. PWs-4, 5 and 15 are the co-tenants of PWs-1 and 2 during the relevant period. PW15 is the wife of PW4. This PWs-4 and 15 have deposed before the court having residing in the same building where the incident had taken place have also stated about the suicide of the victim girl after having come to know the incident in the evening. These two witnesses have further stated as if they had come to know that this accused used 23 Spl CC No.46/2014 to visit the house of PWs-1 and 2 in their absence and when the victim girl was in the house. They further stated that the victim girl during evenings used to talk to somebody through the mobile phone of her mother. It is their further evidence that they after seeing a boy moving with the victim girl, they questioned the victim girl about that boy for which the victim girl alleged to had told them that his name was Manoj Kumar.
21. PW5 is another co-tenant of PWs-1 and 2, but, this witness has only spoken to the death of the victim girl by committing suicide in the house and the further developments took place. This witness has further identified the Death Note- Ex.P11 seized by the police along with Pen as per MO-1 and has identified the signature marked on Ex.P11 in the process of investigation. He has also stated that his wife prior to the date of the incident had seen this accused visiting the house of PWs-1 and 2 along with the victim girl, but, his wife who had seen the accused moving with the victim girl though is available as on the days of investigation and she having not been taken as a witness to speak to that fact. The Hearsay of this witness regarding the accused visiting the deceased/victim girl in her house cannot be believed. Therefore, the evidence of this witness also may have to be considered to speak about the death of the victim girl by committing suicide leaving behind a Death Note as per Ex.P11.
22. PW6 is a witness to Mahazar-Ex.P18 said to had been prepared in the police station while the Investigating Officer getting the Face Book account pertaining to this case was being 24 Spl CC No.46/2014 down loaded from a system. But, this witness has not supported the prosecution case and denied his knowledge of seizure. Despite this witness subjected to the cross-examination by treating him as hostile, the learned Public Prosecutor has not been able to elicit any useful evidence to speak about the related processing of Face book account.
23. PW9 is one of the friends of the accused. This witness has stated that himself and the accused were studying in II B.Com in Sheshadripuram college, Bangalore, in the year 2013 and they were friends. But denied the accused having had introduced the deceased/victim girl to him as his friend. The learned Public Prosecutor has treated this witness as hostile and subjected him to cross-examination. The suggestions by the learned Public Prosecutor that the accused had contact with the girl and he used to miss classes on account of this, is denied by this witness. This witness has admitted that the accused had possessed a mobile phone, but denied the suggestion that, two months prior to 7.11.2013 while coming in a bus, the accused was chatting with a girl telling that he is in love with her. This witness further in his cross-examination by the learned Public Prosecutor has admitted that he came to know through a friend about the Death Note left by the deceased/victim girl. The witness to another question of the learned Public Prosecutor has made an admission that he after having come to know that Manoj Kumar who was responsible for the death of the victim girl was arrested, then he [PW9] went to Mahalakshmi layout police station, saw the accused in the police custody and admitted to 25 Spl CC No.46/2014 have given statement to the police stating that, it was that Manoj Kumar who was in the police custody who had attracted the victim girl in the guise of love, had physical contact with her and committed sexual atrocity and given statement to the police accordingly. The evidence of this witness that he was the classmate of the accused, they were friends and that he came to know the figuring the name of the accused in the Death Note of the victim girl, then his conduct and statement that, even he went to the police station, found this accused in the custody of the police and his further evidence that he identified the accused as the culprit of having had meddled with the chastity of the victim girl and he also gave a statement to the police in this behalf establishes the link that this accused had with the victim girl. This witness has also in his further cross-examination by the learned Public Prosecutor has stated that on 5.11.2013 at about 6.00 p.m., one of his friends even informed him that the victim girl has committed suicide by hanging herself in her house. This statement of the witness has also points to a fact that he had knowledge about the deceased Chandana. Because the deceased was not the student of the college where this witness was studying, nor she was residing nearby his house or in the area of the house of this witness. Then how did he [PW9] come to know this Chandana and what was the reason for his friend to inform him about the death of Chandana and his interest in going to the police station and giving statement before the police is not forth-coming. Similarly, what was his [PW9] interest, or curiosity to know about the death of Chandana/victim girl is not explicit. Then his further admission that he after coming to know 26 Spl CC No.46/2014 the arrest of this accused by the police, went to the police station to see him all convey that he had knowledge about the friendship of the accused and the victim girl and that he also gave a statement to that effect to the police, has not at all been questioned or contradicted in the cross-examination by the learned defence counsel. Therefore, the evidence of this PW9 supports the contents of the Death Note-Ex.P11 to unfold the relationship between the victim girl and the accused.
24. PW10 is a witness to the Seizure Mahazar-Ex.P34 has in his evidence stated that, he was secured by the police of this case to the police station. There he saw a boy in the police custody who took him and the police to a room of his house then the police had seized a data card [MO9], Samsung mobile [MO10] and a Note book [Ex.P12] under Ex.P34 [Seizure Mahazar] and identified the data card as MO9, Exercise Note book as Ex.P12 and Mobile as MO10. This witness has been subjected to the cross-examination by the learned defence counsel. But, nothing worth has been elicited to discredit him regarding his participation in seizure of the Material objects referred to above. However this witness has stated as if the Mahazar-Ex.P34 was prepared in the police station. But, in the cross-examination by the learned Public Prosecutor, he has admitted that Seizure Mahazar was drawn in the house where the articles were seized and he signed there along. Then the seizure of a Mobile Phone as per MO10 and a note book on the information of the accused, from his house remained unpeached. Here, I emphasis the seizure of Ex.P12-Note Book and MO-10 [Samsung mobile] are material to 27 Spl CC No.46/2014 relate the accused to the crime which shall be discussed in detail in the coming paragraphs.
25. PWs-11 and 12 are examined by the prosecution to supplement the prosecution theory that the victim girl was moving with the accused but PW11 has turned hostile by stating that he had not seen the victim girl moving with the accused and also taking with him. PW12 has also been examined to prove as if he had seen the victim girl was moving with a boy by name Manoj Kumar. But the witness except stating that he had seen the victim girl was talking through a mobile, but he denied having had knowledge and seen the victim girl moving or talking with this accused. Therefore, the evidence of PWs-11 and 12 is of no use to the prosecution.
26. PW13 is the aunt of the accused. This witness has stated that the accused is the son of her elder sister was residing with them and was studying in B.Com in Sheshadripuram College, Bangalore. But, she has denied her knowledge about the friendship of the accused and the deceased/victim girl. But stated that she had a mobile phone and all the members of the family including the accused were using that mobile and identified her mobile which has been seized under Ex.P34 and marked as MO-
10. In the cross-examination by the learned Public Prosecutor, this witness has admitted that the accused has also purchased a mobile phone. But she do not remember its SIM Card is 8050667289. She further admitted that, the accused had got the SIM Card changed to Voda Phone. This witness has further 28 Spl CC No.46/2014 deposed to the arresting of the accused. But denied her knowledge about the Death Note. In the cross-examination by the learned defence counsel, she has stated that, the accused was using her phone with her permission. This witness has further denied that, there was any chance for the accused to take any girl to their house. Thus, the evidence of this witness that the accused was using his own mobile phone and was also using her phone with her permission becomes relevant to the issue in this case and not more than that.
27. PW14 is the Principal of the college where the accused was studying and PW21 is the Head Mistress of the school where the victim girl/deceased was studying. PW14 stated that on the request of the concerned police, he has issued in all four documents to the police under his Letter-Ex.P42 and stated to had given the Birth Certificate, Attendance Register extract and other related documents relating to the studying of the accused in their college. Since that fact is not in dispute the learned defence counsel has not cross-examined PW14 and I do not wish to discuss about that in detail.
28. PW21 spoken to the fact that the victim girl was studying in 9th standard about 3 years back prior to her deposition and admitted to had issued a Study Certificate as per Ex.P16, Attendance Register, 2 Answer sheets pertaining to English subject of the victim girl as per Exs.P64 and P65 and stated that she can identify the handwriting of the deceased/victim girl but when confronted the Death Note-Ex.P11 29 Spl CC No.46/2014 she has failed to identify it. But denied the knowledge of the friendship of the accused with the victim girl and having given statement to the police as per Ex.P66. The case of the prosecution that the victim girl was as on 5.11.2013 was studying in 9th standard was 13 years 9 months old since has not been disputed by the defence, the evidence of PW21 to that effect gets corroboration. Therefore, the minority of the girl and her age during the period of the sexual act and the death by suicide cannot be disputed.
29. PW16 is a police official spoken to had carried the Seized articles to FSL need no discussion as the said fact is not in dispute.
30. PWs-17 to 19 are classmates of the deceased/victim girl have turned hostile regarding the friendship of the victim girl and the accused which calls for no comments.
31. PW20 is an handwriting expert was working in FSL deposed, that on the request of the Investigating Officer, pertaining to this case examined the Death note marked as Ex.P11, stated to had got marked the handwriting for his examination as D1 to D4 identified his signature as Ex.P11(c) also deposed to had examined an Exercise note book -Ex.P12 wherein the relevant handwritings are marked by him as Q1 to Q36 and identified his signature as Ex.12(a). He has further deposed to had examined the writings found in 2 answer papers [Exs.P64 and P65] and a Note book which are marked by him S1 30 Spl CC No.46/2014 to S7 and S8 to S121 which are admitted handwritings of the deceased/victim girl The witness has further stated that he examined the Note Book Ex.P10 of the Little Lilly Education Society where the victim girl was studying and the handwritings are marked by him as S8 to S121. It is his further evidence that, after examining the admitted handwritings scientifically, has stated that the handwritings marked as S1 to S121 are the admitted handwritings and the person who has written S1 to S121 has written the contents marked as D1 to D4 and Q1 to Q36 which are the disputed handwritings and got marked the Report he has given as Ex.P57 and his signature as Ex.P57(a) with his Opinion marked as Ex.P58 and deposed to had given his Reports to the concerned Investigating Officer. Further this witness referred to two answer papers which were in the handwritings of the victim girl marked as Exs.P64 and P65 and this witness has stated that the handwritings are the admitted handwritings of the victim girl. The learned defence counsel has not cross-examined this witness and submitted to have no cross-examination.
32. PW22 is the Doctor deposed to had done autopsy over the dead body of the deceased/victim girl and also physically examined the accused, has stated that on conducting the autopsy he had determined the age of the victim girl as 14 years found the symptoms of death by hanging and the related injuries including the ligature marks etc. On genital examination, the witness has stated that the hymen of the deceased/victim girl shown old multiple tears of different sizes and opined that the deceased/victim girl used to an act like that of sexual intercourse 31 Spl CC No.46/2014 and stated that the cause of death was due to asphyxia as a result of hanging and issued Post Mortem report which is marked as Ex.P69 and handing over of the clothings MOs-3 to 6. The witness has also deposed to the physical examination of the accused and stated that the accused was normal built and there is nothing to suggest that he [accused] is incapable of involving in the sexual acts and further given 3 opinions as under:
(1) It cannot be opined regarding his participation in the sexual act.
(2) From the physical and genital examination of Manoj Kumar, I am of the opinion that he is capable of performing an act like that of sexual intercourse.
(3) By the local genital examination of the
accused, there is no evidence of his
participation in sexual act.
And stated to have issued Medical Certificate as per Ex.P70 with the clothings as per MOs-8 to 10. The doctor further stated as there was smegma present over the penis of the accused, no spermatozoa was detected in the vaginal swab of the victim girl.
Then he came to the Third opinion that, there was no evidence of the accused participation in the sexual act. The Witness has further stated to have mentioned in his Report Ex.P70 that, prepuce is intact. If there is partial penetration then the prepuce may be intact and smegma may be present. With this, the witness tried to suggest as if the accused had not participated in the 32 Spl CC No.46/2014 sexual acts. The evidence of this witness will be taken for evaluation on merits in the coming paragraphs.
33. PW23 is the owner of the building where PWs-1 and 2 were tenants during that period which is not material to this case. PW24 is the police official deputed for bringing back the dead body of the deceased and the material objects collected during the autopsy which is also not calling for much evaluation. PW25 spoken to had traced the accused and produced before the Investigating Officer. PW26 deposed to had submitted FIR to the concerned court. These 4 witnesses have not been cross-examined by the learned defence counsel is also not relevant.
34. PW27 is another police official deposed to had taken out the printings of the Face book messages from the monitor through Internet connection relating to the messages exchanged between the victim girl and the accused. The witness stated to had taken the message prints of 8 pages and given to the Investigating Officer, has also stated that he took out the message prints from the Samsung and MTS mobiles and identified the said mobiles that MTS as MO2 and Samsung mobile as MO10 and got marked the Messages as per Exs.P22 to P30. In the cross- examination of the learned defence counsel to the suggestion that the contents of Exs.P22 to P29 are pertaining to the year 2012. In the re-examination by the learned Public Prosecutor, the witness stated that in Ex.P27 the message was sent in the year 2013 and Ex.P28 also which leads us to October 25th also relating to 2013 and even stated that Ex.P29 also relating to year 2013 and not to 33 Spl CC No.46/2014 the year 2012. The witness in the cross-examination of the learned defence counsel has stated to the messages found in Ex.P25 sent by the deceased/victim girl and the accused has not sent his reply. Accordingly further stated that, the victim girl to the question put by the learned defence counsel as per Ex.P29 the victim girl had chatted with one Anjan Kumar and that the accused has not sent any messages to the victim girl. These documents are pertaining to Facebook account of the accused and that the accused had chatted with the victim girl also as per the entries found in Exs.P25 to P29. Therefore, these documents suggest that the accused had chatted with the victim girl through his face book.
35. PW28 is the Assistant Government Examiner cum scientist of Hyderabad deposed to had conducted the digital forensic analysis of 3 articles which include 2 mobile phones and an assembled CPU containing disk. The witness detailing the test he made stated that, he could not perform the needed forensic analysis of two mobile phones marked as MOS-2 and 10 for want of required tools. Therefore opined and answered in the cross- examination by the learned defence counsel that MO2 has not been analysed as such no data was retrieved and that evidence suggests that the witness stated even that another mobile phone MO10 has also not been analysed as such no data is retrieved from it. Accordingly the evidence of this witness points that the needed analysis of the data contained in mobile phones marked as MOs-2 and 10 could not be done.
34 Spl CC No.46/201436. PW29 is the Investigating Officer during the course of evidence has stated that, on 5.11.2013 when he was on the station duty in the evening at 6.30 P.M., as per the information received that a minor girl has committed suicide at 4th Cross, Mahalakshmi Layout, he went to the said spot i.e., No.655:A, 2nd floor, 4th cross, Mahalakshmi Layout and saw one door of the said house was broke-open and inside the said room a half cut veil was found hanging in the hook of the ceiling fan and one dead body of a girl was lying on the cot. Besides the dead body, a Death Note containing 4 pages and a pen were there. The parents of the deceased were near the dead body. He [PW29] enquired with them and CW1 gave a written complaint on the spot itself. He received the said complaint at 8.30 P.M., returned back to the police station and registered a case in Cr.No.354/2013 and sent the FIR to the concerned court and a copy to his higher officers. The said complaint is already marked as Ex.P1 and his signature is marked as Ex.P1(b). The FIR is marked as Ex.P81 and his signature is marked as Ex.P81(a). Further he has submitted that, he has conducted spot panachanama on the same day i.e., on 5.11.2013. During the time of conducting spot panchanama, PW1 told that his daughter was aged 14 yeas and she was studying in 9th standard and on the alleged date of incident, when the wife of CW1 came to the house, the main door was bolted from inside and with the help of neighbours, the wife of PW1 broke open the door of the house and the room of the deceased was bolted from inside and when the said door was not opened, the said door was also opened with the help of neighbours, the wife of PW1 saw that her 35 Spl CC No.46/2014 daughter/decease had committed suicide by hanging from the ceiling fan with the help of chudidhar veil around her neck. The people who had assembled there thought that the victim girl was alive and they brought her down and made her to sleep, but, by that time, the victim girl had already been dead and beside the dead body of the deceased, there was a Death Note containing 4 Pages with a pen and the deceased/victim girl had written that the cause of her death was because of the accused . Besides the cot, there were 4 blue colour plastic chairs and the deceased had put 4 chairs on them and then she had committed suicide by hanging from her veil . He [PW29] conducted the panchanama of the dead body of the deceased as per Ex.P14. He can identity the Death Note and pen. The said Death Note is already marked as Ex.P11 and the Pen is marked as MO-1. Later he sent the dead body for further needful to MS Ramaiah Hospital and he deputed his staffs for tracing out the accused. The Photos of the deceased are marked as Exs.P2 to P9.
37. PW29 has further deposed that, on 6.11.2013, he took the statement of PC 11684 who submitted the FIR to the court. On the same day, he visited MS Ramaiah Hospital and conducted the Inquest on the dead body of the deceased as per Ex.P17 and his signature is marked as Ex.P17(a). Thereafrter he handed over the body to the Hospital authorities for Post Mortem. Thereafter he arrested the accused . Thereafter he recorded the voluntary statement of the accused. Later he sent the accused for medical examination. PW29 has further deposed that, the accused took him to Sneha Nandini Apartment, 3rd floor, No.30:4, 36 Spl CC No.46/2014 and the accused shown the said spot where he committed forcible sexual intercourse with the deceased/victim girl. Thereafter he has seized the note book of the accused wherein the handwriting of the deceased/victim girl is seen and the said Note Book of the accused is marked as Ex.P12 and he also seized mobile phone of the accused under Ex.P34 and he has also seized the CPU as per MO-8, Data Card as per MO-9, Samsung Mobile phone as per MO-10. Thereafter he brought back the accused to the police station and kept him in the custody and on the same day i.e., on 6.11.2013, he has recorded the statements of the witnesses. PW29 has further deposed that on 8.11.2013, CW43 has produced the Call details of the deceased/victim girl's phone and the said phone calls were made from the Mobile phone of the deceased/victim girl to the mobile phone of the accused. On 11.11.2013, he [PW29] received the Medical Report of the accused as per Ex.P70 and his signature is marked as Ex.P70(a). On 12.11.2013, he submitted Requisitions to the School where the deceased/victim girl was studying i.e., Little Lilly school, Mahalakshmi Layout seeking the education certificate attendance register of September, October and November-2013, age certificate, recent written test papers/answer papers of the deceased and he also submitted Requisition to Sheshadripuram College i.e, where the accused was studying, seeking the education certificate attendance register of September, October and November-2013, age certificate, recent written test papers/answer papers and also character certificate of the accused and he has received the same from the said educational institutions in that regard. On 13.11.2013, he received college 37 Spl CC No.46/2014 documents pertaining to accused as per Exs.P41 to P48. On 20.11.2013, he has recorded the statements of PW13, CW29 and CW30.
38. PW29 has further deposed that, on 21.11.2013, he obtained the Post Mortem Report of the deceased/victim girl as per Ex.P69 and his signature is marked as Ex.P69(a). On 22.11.2013, he obtained the answer sheets from the school of the deceased/victim girl. On 25.11.2013, he obtained the Attendance details and character certificate of the accused from the college where the accused was studying. On the same day i.e, on 25.11.2013, he sent Requisition to the PWD Officers to prepare plan of the alleged spot of incident. On 2.12.2013, he sent the sealed articles to CFSL, Hyderabad. On 16.12.2013, sent the seized articles i.e., the Death Note, one long note, English note book and English and science test answer papers to the FSL, Madiwala for scientific examination. On 3.1.2014, he obtained the FSL Report with regard to clothings as per Ex.P67. On 4.1.2014, he obtained the FSL Report from Madiwala as per Ex.P57 regarding the handwritings . On 5.1.2014, he obtained the Plan as per Ex.P84 of the spot of incident from PWD Department. On 7.1.2014, he secured the Nodal Officer, Vodafone, with regard to the sim card used by the accused. Finally on 22.1.2014, after completion of all the investigation formalities, he [PW29] has filed charge-sheet against the accused. He can identify the accused. Hence, he has performed his statutory duties by filing the charge-sheet against the accused. This witness has been cross-examined by the learned defence 38 Spl CC No.46/2014 counsel. In his cross-examination he has denied that the accused has not given any voluntary statement before him as per Ex.P83. He has also denied that, the accused had not taken him to the alleged spot of incident. He has also denied the suggestions put to him and denied that, he has filed false charge-sheet against the accused, even though there was no evidence against him.
39. PWs-30 and 31 are the formal witnesses whose evidence do not call for evaluation.
40. Having narrated in brief the evidence of the prosecution witnesses and the documents produced by the prosecution, I find that the evidence of PWs-1 and 2 relating to the complaint allegations and regarding death note and the evidence of PWs-3 to 5, 7 and 8 relating to the seizure of the death note-Ex.P11, the evidence of PW10 regarding seizure of the mobile phone, note book from the possession of the accused, then the evidence of PW9 partially speaks of the relationship between the accused and the victim girl, then the evidence of PW20 Handwriting expert, PW22 the Doctor, the evidence of PW27-Police constable and PW29 who is the Investigating Officer would become material to find out whether the prosecution has been successful in bringing home the guilt of the accused.
41. The oral evidence of PW1 and PW2 and other circumstantial witnesses as referred to above in my view do not carry any weight nor is impressive of the court's mind to establish 39 Spl CC No.46/2014 that they were aware of the friendship between the accused and the victim girl until they came across the death note found beside the body of the deceased/victim girl on 5.11.2013. No doubt PWs-1 and 2 have in the witness box have stated that the victim girl on 1.11.2013 was in upset mood and when they questioned her for the reason, the victim girl stated to had told them that she was disturbed with this accused through messages and stated to had given the phone number to the accused. This say has not been very seriously contested and contradicted by the learned defence counsel in the cross-examination. With this, this court has to look into the vital documents. According to the prosecution, the death note left behind by the deceased/victim girl marked as Ex.P11, PW29 has deposed and examined the witness regarding taking possession of the death note in the presence of PWs-1 and 2 and the other relatives of PWs-1 and 2 referred to above.
42. PWs-1 and 2 have in their evidence reproduced the contents of Ex.P11. Ex.P11 reveals that the victim girl on 29.10.2012 joined the Face book met few friends through Face book and she on 18.9.2013 got a message from Manoj Kumar who had requested her to send a request and she then initially did not show interest, but on his insistence, she sent a request and got verified with that boy who gave his name as Manoj studying in II year B.Com, Sheshadripuram college, staying in his aunt's house, and he is from Chitraduga and it further reveals that, then they became close, chatting continuously and that Manoj Kumar gave his Mobile Number as 8050667289 and while they were chatting, 40 Spl CC No.46/2014 the accused stated to had developed such intimacy calling the victim girl as Darling and Sweet heart, then that victim girl felt that she was in relationship with that boy, then the victim girl on 4.10.2013 came in physical relationship with the accused and became still more closure. Then on 18.10.2013 on the request of the accused, she wrote academy notes in the book of the accused and gave him, then the accused took her closeness with him for granted and was in physical relationship with her, then he treated her like use and through pen, then she was not allowed in her house to use Face book and the phone and her parents became very strict, but still she was in relationship with the accused and told the accused that if he wants to say anything to her to tell through her friend, but, the accused started collecting more particulars of her friend, then she suspected the accused and her friend on 4.11.2013 told her to forget the accused and concentrate on her studies. It is further stated in the Death Note when she questioned the accused whether he was really in relationship with her for which the accused told her that he had never proposed her and he was just her close friend and when questioned , then why did he have physical relationship with her for which the accused told her that he had physical relationship for fun and to excuse him. When she insisted upon whether he could love her, for which he replied that his parents will not agree especially his father Manjunath and he has promised his parents to marry the girl shown by them and she was extremely depressed did not want to cheat anyone else and decided to take extreme step to end her life, requesting the Authorities concerned to give the accused a right punishment and written that she had 41 Spl CC No.46/2014 told her friends about one Chirantan, but it was lie that she did not know any person like that and forget about that Chirantan.
43. On perusal of the cross-examination of PWs-1 to 8, I do not find an iota of evidence denying the Death Note-Ex.P11 and any attempt to contradict or question the contents of Ex.P11. Therefore, Ex.P11 remained unchallenged. The contents of Ex.P11 reveals that the person who was responsible for sexual act over the victim girl and resulted in suicide because of depression was Manoj Kumar, son of Manjunath, who was residing in Bengaluru with his aunt studying in II year B.Com in Sheshadripuram College, Bangalore was using a Mobile phone which has been referred to above. These facts, particulars and identity of the accused has also not been subjected to the test of cross- examination. Thus, the whole contents of Ex.P11 remained unimpeached.
44. Further to this I refer to the seizure mahazar of Mobile Phone-MO-10 and seizure of Note book marked as Ex.P12 under Ex.P34 speaks of fact of taking possession of those materials at the instance of the accused in the presence of the witness-PW10. The prosecution has produced the mobile call particulars as Ex.P84, which contain innumerable numbers of entries indicating calls from the mobile phone of the victim girl which is marked as MO-2 to the mobile phone of the accused marked as MO-10 which are also not in contradiction which also prove the prosecution case that the accused and the deceased/victim girl were in continuous touch with each other. Similarly Exs.P22 42 Spl CC No.46/2014 to P29 prove that several messages have gone from the facebook account of the accused to the victim girl which further strengthens the prosecution case about the close association of the accused with the victim girl. Then, I take up the documents i.e., the Death Note-Ex.P11 of the victim girl, Note book-Ex.P12 of the accused, Note books of the deceased/victim girl at Ex.P10, Answer Papers Exs.P64 and P65 of the victim girl and the evidence of handwriting expert-PW20. The Investigating Officer PW29 deposed to had seized the death note which has not been questioned. The seizure of the Note Book of the accused from his room as per Ex.P12, the note book of the victim girl as per Ex.P10, the Examination answer papers of the victim girl as per Exs.P64 and P65 which are in the handwritings of the deceased/victim girl obtained from her school authorities are marked as Exs.P64 and P65.
45. PW20 deposed to had marked the disputed handwriting of the deceased/victim girl i.e., contents of D1 to D4, then he has referred to the Note Book belonging to the victim girl marked as Ex.P10 and the Answer Papers of the victim girl marked as Exs.P64 and P65. The handwriting found in Ex.P10 marked by this witness as S1 to S7 and the contents of the Answer Papers marked as Exs.P64 and P65 are marked by this witness as S8 to S121 which are the admitted handwritings of the victim girl. He has also by referring to examination of the handwritings found in the Death Note-Ex.P11 deposed to have marked in as D1 to D4 and Q1 to Q36 which are shown as disputed handwritings and stated that, the person who has written S1 to S121 himself has 43 Spl CC No.46/2014 written the disputed handwritings marked as D1 to D4 [Q1 to Q36] . The learned defence counsel who was present submitted to have no cross-examination of PW20 as such PW20 has not subjected to the cross-examination. As such the evidence of PW20 remained unquestioned, which proves the fact that Death Note-Ex.P11 was written by the victim girl prior to committing suicide and she has also written the notes in the notebook which is marked as Ex.P12 belonging to the accused and that the handwriting is marked as Q1 to Q36 by the expert and the evidence of PW20 proves it was the deceased/victim girl who had written the notes in the notebook of the accused marked as Ex.P12 [Q1 to Q36] on the request of the accused and this fact of the accused getting the notes written through the victim girl in the Note book as per Ex.P12 stands established and goes in corroboration with the Death Note-Ex.P11 which fact placed before the court as stated above remained unquestioned and further proves the contents of the Death Note-Ex.P11 to arrive to a unfettered conclusion.
46. Then coming to the evidence of PW22- the Doctor, who conducted autopsy of the deceased/victim girl, has stated that on examination of genetelia, he found multiple old tears of hymen of different sizes and the victim girl was used to an act of sexual intercourse, which supports the prosecution case that a minor girl was subjected to aggressive penetrative sexual assault and that opinion by PW22 is not tested in the cross-examination. But PW22 after examining the accused physically has even given 3 opinions as referred to above already and stated that prepuce 44 Spl CC No.46/2014 of the accused was intact, therefore, there is no evidence of the accused participation in sexual act and stated if there is partial penetration, then the prepuce may be intact and spegma may be present. The evidence of this material witness [PW22] found to be controversial and not free from strong doubts because he has stated when he examined the accused on his local genital examination, he found presence of smegma and stated if that person has involved in recent sexual activities, smegma will disappear. He also stated that smegma re-collets again another 18 to 24 hours. It is not the case of the prosecution that the accused had sex with the deceased/victim girl either on the date of his medical examination or 18 to 24 hours earlier to his examination to speak about presence or absence of smegma. The witness has also stated that, he found smegma present over the penis of the accused, no spermatozoa was detected in the vaginal swab of the victim girl, therefore, he came to the 3rd opinion that there was no evidence of the accused participation in the sexual acts. The case of the prosecution and the story of the victim girl is that, the victim girl was subjected to sexual assault by the accused somewhere in the month of October-2013 and earlier to that. The Post Mortem report of the deceased/victim girl and the physical examination of the accused was made by him [PW22] on 6.11.2013. That being so, finding spermatozoa in the vaginal swab of the victim girl cannot be expected and that his [PW22] opinion that there is no evidence of the accused participation in the sexual act is absurd and looks irrelevant because of the gap between the actual sexual assault and physical examination of the victim girl and the accused. The 45 Spl CC No.46/2014 Doctor-PW22 has further opined that the prepuce of the accused was intact. If that prepuce is intact it speaks of the accused not having performed the sexual assault and if there is partial penetration, then the prepuce may be intact and smegma may be present. Hence, again the opinion of the doctor-PW22 found to be unscientific and is bereft of reason. The doctor-PW22 who has stated because of the intact of the prepuce the accused has not participated in the sexual act with the victim girl. The opinion of the doctor-PW22 because of the intactness of the prepuce, a person cannot be said to had not participated in penetrative sexual assault. It depends upon person to person and the number of times that the person participated in the sexual act. Considering the evidence of PW22 that on examination of the genital part of the victim girl, he found that the hymen had ruptured irregularly and opined she was used for act of sexual intercourse and that the victim girl when under the verge of death tells that Manoj Kumar has used her for his pleasure, committed sexual act and treated her as use and through pen, how can the evidence of this doctor that because of intactness of the prepuce of the accused that he has not participated in sexual act be believed. Therefore, such opinion of the doctor in my view do not impress the consciousness of the court. The opinion cannot be taken in general and do not impress upon the court. Even otherwise, the evidence of PW22 if there is partial penetration then the prepuce may be intact suggests sexual assault as defined under Sec.3 of POCSO Act, 2012. Therefore, the opinion of the doctor-PW22 taken with the last statement of the victim girl together unerringly suggests that the victim girl had suffered 46 Spl CC No.46/2014 aggravated penetrative sexual assault and this conclusion in my view is irresistible and inevitable which points to the guilt of the accused.
47. PW29 has spoken to the procedure of investigation and nothing is elicited in his cross-examination by the learned defence counsel to suggest any artificiality or contradictions except certain contradictions found in the evidence of PWs-1 and 2 elicited through him. No doubt, PW29 admitted that PWs-1 and 2 had not made certain statements before him while recording the statements, as deposed in the witness box. Even taking into consideration these contradictions they do not in my view discredit the prosecution case to doubt the evidence that has been given by PWs-1 and 2 before this court. As on considering the foregoing oral evidence and documents are referred to above, proves the involvement of the accused in the life of the victim girl which led the victim girl to end her life.
48. The learned defence counsel in defence to their case have examined 2 witnesses as DWs-1 and 2 who are none other than the uncle and nephew of the accused respectively and got marked 3 documents as Exs.D1 to D3. DW1 in his evidence stated that himself, his wife, his younger brother and his wife with his son and this accused were residing together in their house and that the said house has got 2 bedrooms and a small room and stated that his family and his brother's family occupied one bed room each, then his son and this accused who were using the small room for reading and they were sleeping in the hall and 47 Spl CC No.46/2014 there is no scope for anything happening in their house and particularly on 4.10.2013 they never stepped out of the house. This evidence is got elicited from DW1 to show as if the victim girl had stated that the accused had sex with her in his house on 4.10.2013. That is not the say of the victim girl, she has not in her Death Note-Ex.P11 said that the accused had sex with her on 4.10.2013 in his house. That being so, the evidence of DW1 has became redundant. The learned defence counsel during the course of his arguments argued that the prosecution has failed to prove the place of sexual assault by relying upon the evidence of the relative witness of the accused stating that, on 4.10.2013, was a festival day, they had not stepped out of the house and there was no scope for the accused committing such a crime in his house and therefore on that ground alone, the prosecution case has to be thrashed. I fail to understand the substance of the arguments of the learned defence counsel, because the deceased in her Death Note which is marked as Ex.P11 has not at all stated that, she was subjected to sexual assault on 4.10.2013 and 18.10.2013 in the house of the accused. No doubt my learned predecessor while framing Charge in the Charge column stated as if the sexual assault has been committed in the house of the accused which is mistake but, that does not mean because of that mistake, we should also read the last words of the deceased in that mistaken way. Merely because that the victim girl has not referred to the place where she was subjected to sexual assault, her further statement of the same and the reliable and legal evidence adduced before the court when support the prosecution case, the agony of the victim girl cannot be believed and the 48 Spl CC No.46/2014 whole case has to be thrown out of the legal scrutiny. I therefore find no merits in the said contention of the learned defence counsel.
49. DW2 is the son of DW1, attempted to tell to the court that while he was studying in the college, he had come in contact with Manoj Kumar Chiranthan in the play ground and he was telling him that he has told that the victim girl was his friend and had introduced her to him [Dw2] through phone and this witness was also talking to the victim girl through phone and thereby tried to show to the court that Manoj Kumar Chirantan may be the person who is responsible for the agony and death of the victim girl. But, the evidence of DW2 appears to be superfluous because when DW2 knew that Manoj Kumar Chiranthan who had contact with the deceased/victim girl and introduced the victim girl to him [DW2], he could have substantiated the same before this court. Even his evidence that Manoj Kumar Chiranthan was secured to the police station and was let-off by the police is not impressive. Exs.D1 and D2 are the typed copies of the telephone calls made from the Mobile Phone No.8453255467 to Mobile Phone No.8951212938 and to another phone No.8050667289. These 2 documents points to the calls made by the victim girl through her phone not only to the accused but also to another phone number. But, the accused cannot deny these calls between himself and the victim girl and by pointing to calls made by the victim girl to another person avoid his implication in commission of this crime.
49 Spl CC No.46/201450. No doubt the victim girl at the end of her Death Note in the last lines conveyed to her friends having had told them about Chiranthan but it was a lie and she do not know any person like that and requested her friends to just forget about that. This statement of the victim girl cannot be mistaken to connect someone to the crime. The defence it seems to have taken that statement to connect one Chiranthan to the crime and get the accused exonerated and in that behalf have examined DW2. Here we should understand the situation the victim girl who had fell in love with a person had come to the notice of her friends and it appears when such friends asked her she had in order to misguide them given the name of this accused as Chiranthan instead of giving his correct name with a view to avoid future complications or identity. Therefore, the victim girl has clarified that point making her mind clear. That these facts in my view cannot be used to link some unknown person for the tragic end of the victim girl who was in her youth.
51. This apart the question that arises is when the Death Note-Ex.P11 written by the victim girl is proved and the affair between the victim girl and the accused is proved, and the proving of notes written by the victim girl in the Note book of the accused marked as Ex.P12, all goes in true spirit and genuniness of the Death Note-Ex.P11. That apart why should a girl who was in her teen age who had decided to end her life exonerate the real culprit and falsely implicate an innocent person. When that victim girl took a drastic decision of ending her life for the reason of her sufferings, she never spare the person who is responsible for her 50 Spl CC No.46/2014 plight and victimize an innocent person. In this case, it is hard to believe the defence story that it was one Manoj Kumar Chiranthan who is responsible for the plight of the victim girl and this accused who is innocent has been victimized. Thus, I hold that the defence has no substance for sustaining their stand and the same is liable to be rejected. In this regard, the decisions relied by the learned defence counsel in: (1) Rajesh Vs. State of Haryana dated: 18.1.2019 in Criminal Appeal No.93/2019 arising out of SLP (Cri.) No.8667/2016. (2) Chithresh Kumar Chopra Vs. State [Government of NCT Of Delhi], reported in (2009) 16 SCC 605. (3) Ramesh Kumar Vs State of Chhattishgar reported in (2001) 9 SCC 618, have no relevancy to the facts of this case. Hence, I hold that the prosecution has proved the guilt of the accused beyond all reasonable doubts, thereby, the accused is liable to be convicted for the offences punishable under Sec.376 of IPC and Sec.6 of POCSO Act, 2012, Sec.306 of IPC. Hence, I answer Point Nos. 1 and 2 in the AFFIRMATIVE.
52. POINT NO.3:- The accused has been charged for the offence punishable under Sec.201 of IPC on the ground that he had deleted the messages sent by him through his mobile and Face Book to the victim girl with an intention to screening himself from legal punishment. Except this allegation against this accused in the prosecution papers absolutely none of the prosecution witnesses have spoken to these facts and proved the deletion of the messages that were exchanged between the accused and the deceased. Absolutely I find no evidence in proof of the said charge and the accused is therefore entitled for 51 Spl CC No.46/2014 acquittal under Sec.201 of IPC. In this regard, the learned defence counsel has relied upon the decisions reported in:
(1) Dinesh Kumar Kalidas Patel Vs. State of Gujara reported in (2018) 3 SCC 313, (2) Sukhram Vs. State of Maharashtra reported in (2007) 7 SCC 502 and (3) V.L.Tresa Vs. State of Kerala reported in (2001) 3 SCC 549 which are aptly applicable to the case on hand Accordingly I answer Point No.3 in the NEGATIVE.
53. POINT NO.4:- In view of my findings on Point Nos. 1 to 3 as referred above, I proceed to pass the following:
ORDER Acting under Sec.235(1) of Cr.P.C, I hereby acquit the accused for the offence punishable under Sec.201 of IPC.
Acting under Sec.235(2) of Cr.P.C, I hereby convict the accused for the offences punishable under Sec.376 of IPC and Sec.6 of POCSO Act, 2012, Sec.306 of IPC.
[Dictated to the Stenographer directly on the computer, corrections carried out and then pronounced by me in the open court on this the 11th day of June, 2019] [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.52 Spl CC No.46/2014
13.6.2019 ORDER ON SENTENCE The accused is present. He is heard regarding the sentence to be imposed on him. The learned counsel for the accused submitted on behalf of the accused that, the accused as on the period of commission of the offence was just 19 ½ years old and he is now aged about 26 years, has dependent aged parents, are to be looked after and if the accused is sentenced for larger period his future would be affected and submitted for awarding lesser punishment.
Of course, on examining the material facts of the case, it is found that, the accused was during the period of commission of the offence was at his teen age and he is now said to be 26 years old. Undoubtedly he would have had good and long future if he had maintained such career. But considering the facts of the case, and the reasons I have assigned the accused has been held guilty of the offences punishable under Sec.306 of IPC and heinous offence punishable under Sec.376 of IPC and under Sec.6 of POCSO Act, 2012. Further considering the fact that the victim girl was also at her teen age, i.e., was about 13 years 9 months had been misguided and subjected to aggravated penetrative sexual assault more than once and because of the abetment committed by the accused that victim girl ended her life by committing the suicide depressed by the attitude of the accused who said to had adopted the tendency of use and throw as told by the victim girl herself in her Death Note. Having regard to these facts, and the 53 Spl CC No.46/2014 conclusion, this court has reached the accused cannot escape from being sentenced with higher punishment.
The Amended Section 376(3) of IPC which came to effect from 21.4.2018 through Criminal Law (Amendment) Act, 2018 22 of 2018 provides for imposing minimum sentence of 20 years and also with fine in case where the offence is committed against a woman under the age of 16 years. Whereas under the provision of Sec.6 of POCSO Act, 2012, provides punishment for aggravated penetrative sexual assault with a minimum sentence of 10 years which may extend to life along with fine. The offence under Sec.376(3) of IPC and Sec.6 of POCSO Act, 2012 being the same, the accused cannot be punished for the same offence twice under 2 different Acts.
In the present case, the deceased was below the age of 16 years as on the date of the alleged commission of offence. Therefore, as per the provisions under Sec.376(3) of IPC, r/w Sec.6 of POCSO Act, 2012, with a minimum sentence of 20 years Rigorous Imprisonment for the said offences has to be imposed. That being the position this court is of the view has no choice to show any leniency in awarding sentence, but to award the minimum statutory punishment. As such, I pass the following:
SENTENCE
(a) I hereby sentence the accused to undergo Simple Imprisonment for a period of 3 Years and he shall also pay a fine of Rs.15,000/- for the offence punishable 54 Spl CC No.46/2014 under Sec.306 of IPC. In default of payment of the fine amount the accused shall further undergo Simple Imprisonment for a period of 3 Months.
(b) Further, I hereby sentence the accused to undergo Rigorous Imprisonment for a period of 20 Years and he shall also pay a fine of Rs.25,000/- for the offences punishable under Sec.376(3) of IPC r/w Sec.6 of POCSO Act, 2012. In default of payment of the fine amount, the accused shall further undergo Simple Imprisonment for a period of One year.
Both (a) and (b) sentences shall run concurrently.
The entire fine amount collected, shall be given to the complainant/father of the deceased by way of compensation.
Acting under Sec.428 of Cr.P.C, the period of detention undergone by the accused is set-off against the sentence of imprisonment imposed.
MOs-1, 3, 4, 5, 6, 7, 8(a), 9(a), 10(a) being worthless ordered to be destroyed after the appeal period is over.
MOs-2 and 10 are ordered to be confiscated to the State after the appeal period is over.
55 Spl CC No.46/2014MOs-2(a), 8, 9, 10(A) 10(B), 11 being the material evidence are ordered to be kept along with other evidence.
Copy of this Judgement shall be given to the accused free of cost forthwith.
[ Sentence dictated to the Stenographer directly on the computer, corrections carried out and then pronounced by me in the open court on this the 13th day of June, 2019] [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
ANNEXURES:
Witnesses examined for the prosecution:
PW.1 Shanthakumar CW1 20.1.2016 PW.2 Sunitha CW12 13.4.2016 PW.3 Eshwaraprasad CW14 23.4.2016 PW.4 Ananthkumar CW2 26.4.2016 PW.5 ManjunathaBhatta.K.V CW3 26.4.2016 PW.6 G.Manjunath CW7 5.11.2016 PW.7 Subramanya CW18 22.11.2016 PW.8 Ramarathna CW13 1.12.2016 PW.9 Bharath CW22 1.12.2016 PW.10 Sunilkumar.E CW4 15.12.2016 PW.11 Kemparaju CW24 15.12.2016 PW.12 J.N.Dharanikumar CW25 15.12.2016 PW.13 Kavitha CW28 23.1.2017 56 Spl CC No.46/2014 PW.14 Mahalakshmi CW32 24.1.2017 PW.15 Sunitha CW26 3.2.2017 PW.16 A.R.Sudheendra CW40 3.2.2017 PW.17 Chaithanya CW19 17.2.2017 PW.18 Madhumita CW20 17.2.2017 PW.19 Nikhitha CW21 17.2.2017 PW.20 Sayyed Asgar Imam CW38 20.2.2017 PW.21 Geetha Pawar CW31 7.3.2017 PW.22 Dr.Pradeep.K.S CW37 7.3.2017 PW.23 BipinkumarRaj CW30 17.3.2017 PW.24 Basavaraju CW41 17.3.2017 PW.25 Ashok Kumar.B.N. CW42 17.3.2017 PW.26 Bheemappa CW44 17.3.2017 PW.27 Anil Kumar.G. CW45 28.3.2017 PW.28 C.H.E.Sai Prasad 18.5.2017 PW.29 Kumaraswamy.T.R. CW46 6.10.2017 PW.30 Gangadhara.S.C Addl. 5.2.2018 Witness PW.31 V.N.Nagaraj Addl. 9.3.2018 Witness Documents marked for the prosecution: Ex-P-1 Complaint dt. 05/11/2013 Ex-P-1(a) Signature of PW-1 Ex-P-1(b) Signature of PW-29 Ex.P-2 to 9 Photos Ex.P-10 Note Book(deceased) 57 Spl CC No.46/2014 Ex.P-11 Death Note of the deceased Ex.P-11(a) Xerox copy of the Death Note Ex.P-11(b) Signature of PW-4 Ex.P-11(c) Signature of PW20 Ex.P-12 Note Book(accused) Q1 to Q36 Handwriting of the deceased Ex.P12(a) Signature of Pw20 Ex-P-13 Notice given to Panchas Ex-P-13(a) Signature of PW-4 Ex-P-13(b) Signature of PW-5 Ex-P-13(c) Signature of PW-29 Ex.P-14 Spot Mahazar Ex.P-14(a) Signature of PW-4 Ex.P-14(b) Signature of PW-5 Ex.-P-14(c) Signature of PW-29 Ex.P-15 Seizure Mahazar Ex.P-15(a) Signature of PW-4 Ex.P15(b) Signature of PW29 Ex.P-16 Notice to Panchas Ex.P-16(a) Signature of PW-4 Ex.P16(b) Signature of PW29 Ex.P-17 Post Mortem Report of the victim girl [marked with consent] Ex.P-17(a) Signature of CW10 Ex.P17(a) Signature of Pw29 Ex.P-18 Seizure Mahazar Ex.P-18(a) Signature of PW-6 58 Spl CC No.46/2014 Ex.P-18(b) Signature of PW-27 Ex.P18(c) Signature of PW29 Ex.P-19 Sample Seal Ex.P-19(a) Signature of PW-6 Ex.P19(b) Signature of Pw29 Ex.P-20 Notice to Panchas Ex.P-20(a) Signature of PW-6 Ex.P20(b) Signature of PW29 Ex.P-21 Green Colour Parcel Cover Ex.P-21(a) Signature of PW-6 Ex.P-22 to 29 Face Book Printout (8 pages) Ex.P-30 Phone Message Printout-1 Page Ex.P-31 Statement of PW-6 Ex.P-32 Statement of PW-9 Ex.P-33 Notice to Panchas Ex.P-33(a) Signature of PW-10 Ex.P33(b) Signature of PW29 Ex.P-34 Seizure Mahazar of property Ex.P-34(a) Signature of PW-10 Ex.P34(b) Signature of PW29 Ex.P34(c) Signature of the accused Ex.P-35 Statement of PW-11 Ex.P-36 Statement of PW-12 Ex.P-36(a) Relevant Portion Ex.P-36(b) Relevant Portion Ex.P-37 Mobile Sim Application Ex.P-38 Mobile Sim Application Ex.P-39 Copy of Photo ID PW-13 59 Spl CC No.46/2014 Ex.P-40 Relevant Portion of statement of PW-13 Ex.P-41 Police Requisition Letter Ex.P41(a) Signature of PW29 Ex.P-42 Letter written to Police Inspector from Principal, Sheshadripuram Commerce college- enclosing 4 documents Ex.P-42(a) Signature of PW-14 Ex.P-43 Study certificate of the accused Ex.P-43(a) Signature of PW-14 Ex.P-44 Attendance details of accused Ex.P-44(a) Signature of PW-14 Ex.P-45 Attendance Data of accused Ex.P-45(a) Signature of PW-14 Ex.P-46 Attendance Data of accused Ex.P-46(a) Signature of PW-14 Ex.P-47 Attendance Report of accused Ex.P-47(a) Signature of PW-14 Ex.P-48 Character certificate of the accused Ex.P-49 Statement of PW-15 Ex.P-49(a)to(e) Relevant portions Ex.P-50 Relevant portion of statement of PW-15 Ex.P-51 Acknowledgement issued from CFSL Ex.P51(a) Signature of PW29 Ex.P-52 Report of PW-16 Ex.P52(a) Signature of PW16 Ex.P52(b) Signature of PW29 Ex.P-53 Passport issued to PW-16 60 Spl CC No.46/2014 Ex.P-54 Statement of PW-17 Ex.P-55 Statement of PW-18 Ex.P-56 Statement of PW-19 Ex.P-57 FSL Report Ex.P-57(a) Signature of PW-20 Ex.P-58 Opinion Report of PW-20 Ex.P-58(a) Signature of PW-20 Ex.P-59 Sample Seal Ex.P-59(a) Signature of PW-20 Ex.P-60 Study Certificate of deceased Ex.P-60(a) Signature of PW-21 Ex.P-61 to 63 Attendance Certificate of deceased Ex.P-61,62,63 Signatures of PW-21 (a)
Ex.P-64 and 65 Answer Sheets pertaining to deceased Ex.P-64(a) and Signatures of PW-21 65(a) Ex.P-66 Relevant portion of statement of PW-21 Ex.P-66(a) and Relevant portions of statement of PW-21
(b) Ex.P-67 FSL Report Ex.P67(a) Signature of PW29 Ex.P-68 Sample Seal Ex.P-69 Post mortem Report of deceased Ex.P69(a) Signature of Pw22 Ex.P69(b) Signature of PW29 Ex.P-70 Medical Report of accused Ex.P-70(a) Signature of PW-22 Ex.P70(b) Signature of PW29 Ex.P-71 Report of PW-24 61 Spl CC No.46/2014 Ex.P-71(a) Signature of PW-24 Ex.P-72 Report of PW-24 Ex.P72(a) Signature of Pw24 Ex.P72(b) Signature of Pw29 Ex.P-73 Passport Ex.P-74 Acknowledgement issued by FSL dt.
16/12/2013 Ex.P-75 Acknowledgement issued by FSL dt.
17/12/2013
Ex.P-76 Report of PW-25
Ex.P-76(a) Signature of PW-25
Ex.P76(b) Signature of Pw29
Ex.P-77 Passport
Ex.P-78 Certificate of CFSL dt. 18/05/2017
Ex.P79 Examination Report issued by CFSL
Ex.P79(a) Signature of PW28
Ex.P79(b) Signature of PW29
Ex.P80 CD
Ex.P80 Report given by PW31 regarding
collecting of the documents containing the writings of the deceased Ex.P80(a) Report given by PW31 regarding collecting of the documents containing the writings of the deceased Ex.P80(b) Signature of PW29 Ex.P80(c) Signature of PW31 Ex.P81 FIR 62 Spl CC No.46/2014 Ex.P81(a) Signature of PW29 Ex.P82 Acknowledgement for having handed over the dead body of the deceased Ex.P83 Voluntary statement of the accused Ex.P83(a) Signature of PW29 Ex.P83(b) Signature of the accused Ex.P84 Call Details Record of the deceased[total 10 pages] Ex.P85 Key plan Ex.P85(a) Signature of Pw29 Ex.P85(b) Signature of PW30 Ex.P86 Letter written to PW29 from Vodafone South Limited.
Ex.P86(a) Signature of Pw29 Ex.P86(b) Call details Ex.P86(c) Call details Ex.P86(d) Call details Ex.P87 Report given by Prakash.H.C 3542 for collecting over the articles from FSL, Hyderabad, Andhra Pradesh State Ex.P87(a) Signature of PW29 Ex.P88 Passport Ex.P88(a) Signature of PW29 Ex.P89 Requisition given by PW29 to the Principal, Little Lillys English High School, Mahalakshmi Layout, Bangalore wherein the deceased was studying 63 Spl CC No.46/2014 Ex.P89(a) Signature of PW29 Ex.P90 Requisition given by PW29 to the Assistant Executive Engineer, PWD for preparing the plan of the alleged place of incident wherein the deceased committed suicide Ex.P90(a) Signature of Pw29 Ex.P91 Official Memorandum Ex.P91(a) Signature of Pw29 Ex.P92 Report given by PW24 for having taking the sealed articles of this case to FSL, Madiwala for chemical examination Ex.P92(a) Signature of Pw29 Ex.P92(b) Signature of PW24 Ex.P93 Letter dated: 3.1.2014 written by Assistant Executive Engineer, PWD, Bengaluru for having prepared the plan Ex.P93(a) Signature of PW29 Material Objects marked for the prosecution:
MO-1 Orange colour ball pen
MO-2 MTS mobile
MO-2A Sim card
MO-3 Cotton T-Shirt of the deceased/victim girl
64 Spl CC No.46/2014
MO-4 Pant of the deceased/victim girl
MO-5 White colour bra of the deceased/victim girl
MO-6 Green colour underwear of the deceased/victim girl
MO-7 Veil of the deceased/victim girl
MO-8 CPU
MO-9 Data card
MO-10 Samsung mobile phone
MO-10(A) Sim card
MO-10(B) Memory card
MO-8(a) One shirt of the accused.
MO-9(a) One half pant of the accused
MO-10(a) One underwear of the accused
MO-11 Hard disc
Witness examined for the accused:
DW1 Jayasimha 18.6.2018
DW2 Varun.J.Kaushik 18.6.2018
Documents marked for the accused:
Ex.D1 Phone Call details record
Ex.D2 Phone call details record
Ex.D3 Rental Agreement dated: 10.4.2013 executed
between the owner and DW1
[R.SHARADA]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
65 Spl CC No.46/201411.6.2019 Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(1) of Cr.P.C, I hereby acquit the accused for the offence punishable under Sec.201 of IPC.
Acting under Sec.235(2) of Cr.P.C, I hereby convict the accused for the offences punishable under Sec.376 of IPC and Sec.6 of POCSO Act, 2012, Sec.306 of IPC.
[R.SHARADA]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.66 Spl CC No.46/2014
13.6.2019 Sentence pronounced in open court:
[ Vide separate detailed Sentence]
(a) I hereby sentence the accused to undergo Simple Imprisonment for a period of 3 Years and he shall also pay a fine of Rs.15,000/- for the offence punishable under Sec.306 of IPC. In default of payment of the fine amount the accused shall further undergo Simple Imprisonment for a period of 3 Months.
(b) Further, I hereby sentence the accused to undergo Rigorous Imprisonment for a period of 20 Years and he shall also pay a fine of Rs.25,000/- for the offences punishable under Sec.376(3) of IPC r/w Sec.6 of POCSO Act, 2012. In default of payment of the fine amount, the accused shall further undergo Simple Imprisonment for a period of One year.
Both (a) and (b) sentences shall run concurrently.67 Spl CC No.46/2014
The entire fine amount collected, shall be given to the complainant/father of the deceased by way of compensation.
Acting under Sec.428 of Cr.P.C, the period of detention undergone by the accused is set-off against the sentence of imprisonment imposed.
MOs-1, 3, 4, 5, 6, 7, 8(a), 9(a), 10(a) being worthless ordered to be destroyed after the appeal period is over.
MOs-2 and 10 are ordered to be confiscated to the State after the appeal period is over.
MOs-2(a), 8, 9, 10(A) 10(B), 11 being the material evidence are ordered to be kept along with other evidence.
Copy of this Judgement shall be given to the accused free of cost forthwith.
[R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.68 Spl CC No.46/2014 69 Spl CC No.46/2014