Bangalore District Court
State By Srirampura Police vs Murugan.P on 29 November, 2016
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS JUDGE AT
BANGALORE CITY (CCH-55)
Dated this the 26th day of November 2016
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY.
SPL.C.C.NO.274/2013
COMPLAINANT State by Srirampura Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Murugan.P,
Son of Late.Parashuram,
Aged 49 years,
Residing at No.113, Besides Mosque Road,
Lakshmanapuri,
Sheshadripuram,
Bangalore-20.
(By Sri. K.Srinivas and Associates-Advocates)
1. Date of commission of offence 07.09.2013
2. Date of report of occurrence of 12.09.2013
the offence
3. Date of arrest of accused 12.09.2013
4. Date of release of accused 13.03.2014
[on bail]
2 SPl CC No.274/2013
5. Period undergone in custody 6 Months and one day
by the accused
6. Date of commencement of 19.4.2014
evidence
7. Date of closing of evidence 21.3.2016
Name of the complainant Kumari.Ramya.P
9. Offences complained of Sec.376 of IPC and Secs. 3, 4, 7
and 8 of POCSO Act, 2012
10. Opinion of the Judge The accused is found guilty of
the offences punishable under
Sec.376 of IPC and under Sec.4
of POCSO Act, 2012.
The accused shall undergo
rigorous imprisonment for a
period of 10 years for the
offence punishable under Sec.4
of POCSO Act, 2012 and to pay
a fine of Rs.20,000/-. In
default of payment of fine
amount, the accused shall
undergo simple imprisonment
for a period of One Year. If
the fine amount of Rs.20,000/-
is recovered, a sum of
Rs.15,000/- shall be paid to the
victim girl towards
compensation.
3 SPl CC No.274/2013
JUDGMENT
Police Inspector, Srirampura Police Station, Bangalore, has submitted charge sheet in Crime No.193/2013 for the offences punishable Under Sec.376 of IPC and Secs. 3, 4, 7 and 8 of POCSO Act, 2012.
2. The prosecution case, briefly stated:
That on 7.9.2013 at about 12.45 P.M., the complainant-victim girl came from school, removed her uniform and wore nighty and opened the doors of her house, the accused herein was standing in front of her house, asked for water, the victim girl gave water in a tumbler and the accused by taking the tumbler went near the bathroom pretending to clean his mouth. The accused stood near the bathroom and asked her [victim girl] to take the tumbler and when she went to take the tumbler, the accused caught her and dragged her inside the bathroom and forcibly took out her nighty and committed sexual intercourse on her without her consent and also threatened her not to reveal the said facts to anyone. On 11.9.2013, she informed the act committed by the accused to her aunt, and herself and her aunt approached the Police Station and lodged the complaint, as per Ex.P1.
3. On the basis of the said complaint, the complainant police registered a case in Cr.No.193/2013 for the offences punishable under Sec. 376 of IPC and under Secs, 3, 4, 7 and 8 of POCSO Act, 2012 as per FIR-Ex.P13 and took up investigation. Thereafter the 4 SPl CC No.274/2013 victim girl was sent for medical examination and spot mahazar conducted, accused also sent for medical examination after his arrest, after completion of the investigation formalities, charge- sheet has been filed.
4. The accused was arrested on 12.9.2013 and he is on bail. He is represented by the counsel of his choice. After production of the accused, the copies of the prosecution papers [charge-sheet] was given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5. After hearing the learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in- office has framed the Charge on 12.12.2014 for the offences punishable under Sec.376 of IPC and under Sec.4 of POCSO Act, 2012 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed trial.
6. The prosecution in order to bring home the guilt of the accused has examined in all 21 witnesses as PWs-1 to 21 out of the total 25 witnesses as shown in charge-sheet and got marked 16 documents as per Exs.P1 to P16 and got marked the Material Objects as per MOs-1 to 6.
7. At this stage it is necessary to mention that, though in the charge-sheet, there are 25 witnesses cited, the prosecution examined only 21 witnesses. CW8, CW18, CW19 and CW25 are 5 SPl CC No.274/2013 not examined by the prosecution. On perusal of the order sheet it discloses that CW18 is dead. CW19-ASI who traced the accused and produced him [accused] before the Sub-Inspector is given up. CW8 is the owner of the shop where the victim girl was residing and deposes about the rape committed on the victim girl and CW25- Smt.Jayanthi Police Inspector who had taken up further investigation of this case from CW24 [PW21] were not examined by the prosecution. Inspite of summons and warrants issued to CW8, CW8 had vacated the address and was not present before the court and CW25 was transferred to COD and she was on Maternity Leave, hence, CW8 and CW25 were dropped vide order dated: 6.4.2016 by rejecting the prayer made by learned Public Prosecutor.
8. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C was recorded. The accused has denied the incriminating evidence found in the evidence of prosecution witnesses. His defence is that of total denial of his involvement in the alleged incident and that he is totally innocent. However, the accused did not choose to lead any evidence in support of his defense.
9. Heard learned Public Prosecutor and the learned counsel for the accused. Learned Public Prosecutor has relied upon the authorities/decisions in support of his arguments.
(1) AIR 2004 SC 4404 [State of Himachal Pradesh Vs. Shree Kant Shekari] 6 SPl CC No.274/2013 (2) (1998) 8 Supreme Court Cases 635 [Ranjit Hazarika Vs. State of Assam] (3)1998 Cri.L.J 1597 [Mahesh Kumar and another Vs. State of Rajasthan] (4) (2003) 8 Supreme Court Cases 551 [Bhupinder Sharma Vs. State of Himachal Pradesh]
10. As per the Charge leveled against this accused, the following Points do arise for consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 7.9.2013 the accused committed rape on the Victim girl knowing that the victim is a minor girl and thereby committed the offence punishable under Sec.376 of IPC and under Sec.4 of POCSO Act, 2012?
2. What Order?
11. My findings on the above points are as under:
Point No.1 : In the AFFIRMATIVE Point No.2: As per the final order, for the following:
REASONS
12. POINT NO.1: . According to the prosecution, that on 7.9.2013 at about 12.45 P.M., the accused came to the house of the victim girl and asked for water and when the victim girl gave the water in a tumbler, the accused pretending to clean his mouth went to the bathroom and asked the victim girl to take the tumbler and when the victim girl went near the bathroom, the accused caught and dragged her inside the bathroom and committed rape 7 SPl CC No.274/2013 on her without her consent, knowing that the victim is a minor girl. Hence, the accused has committed the offences as per the charge leveled against him.
13. The initial burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution has relied upon the evidence of PWs-1 to 21. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Victim girl-complainant Pw.2 Prakash-father of the victim girl Pw.3 Dr.Chandrashekar who deposes about the medical
examination of the sealed articles and issuing of FSL Report Pw.4 Dr.Preya Kumar who deposes about the Radiological examination conducted on the victim girl to know about the age of the victim girl.
Pw.5 Indira-Aunt of the victim girl
Pw.6 Govindamma-grandmother of the victim girl deposes
about the alleged incident
Pw.7 Dr.Jagadish Siddappa Ganagi deposes about referring
the victim girl for medical examination to Gynecologist Pw.8 Janakamma-Teacher-R.G.Iyer High School, Srirampura, has issued certificate certifying the age of the victim girl.
PW.9 Chandrashekar-owner of the house where the victim
girl is residing and friend of the accused
PW.10 Ramesh- neighbour of the victim girl's house
PW11 Palani- witness to the spot mahazar
PW.12 Sridhar.M-Head constable who deposes about
apprehending the accused
8 SPl CC No.274/2013
PW.13 Dr.Dileep Kumar.K.B-Assistant Professor, Bangalore
Medical college and hospital, who has conducted medical examination of the accused PW.14 Shivashankarappa-Police Constable who deposes about taking the sealed articles to FSL, Madiwala PW.15 Dr.Parvathibai- Gynecologist, KCG Hospital, who deposes about the medical examination conducted on the victim girl.
PW16 Sumithra-spot mahazar witness PW17 Kamakshi-Relative of the victim girl PW18 Meenakshi- Maternal Aunt of the victim girl PW19 C.Sampath Kumar-Dy.S.P who deposes about the
receipt of complaint, registering of FIR, conducting of spot mahazar and arresting the accused PW20 Sureshbabu-Police Constable who deposes about taking the FIR to the court.
PW21 Janardhan.B.L- Police Inspector who deposes about conducting of further investigation.
14. Before appreciating the evidence, it is better to have a glimpse of the evidence given by all witness.
15. P.W1-Victim girl-complainant, deposes that in the year 2013 she had been studying in 9th standard. Her mother died 10 years prior to 2013. Her father contacted second marriage and her father and her aunt residing in separate house and she has been residing in her grand mother's house at Sriramapura, her grand mother is going to Insence Sticks factory, her grand mother has been residing in a Vatara consisting of 7 houses, in front of her house, the accused is residing and he was running welding 9 SPl CC No.274/2013 workshop, the owner of the house of the Victim girl and the accused are friends, she further deposed that there are three bath rooms in the said Vatara and are being used by the persons residing in the said seven houses, she used to call the accused as uncle and he always used to speak with her asking her whether she had meals, that on 7.9.2013 she came to house at 12.30 P.M., from school, at that time her grand mother had gone to work, she changed her dress, at that time, the accused came and asked her to give water and accordingly, she gave water in a tumbler, the accused went inside the bath room and asked her to take the tumbler, when she had gone to take the tumbler from the accused, he dragged her inside the bath room and closed her mouth and inspite she asked him to leave her, he did not leave her and locked the door and after lifting her nighty, he removed her tights and he also unzipped his pant and kissed on her mouth and squeezed her chest, thereafter, he inserted his penis in her vagina and after white discharged, he asked her to go out side. She did not reveal the said incident to anybody because of fear and she removed her nighty and worn other cloth and nighty was washed on the next day. Thereafter, on 11.09.2013 she informed the said incident to her aunt C.W3, and she took her to police station and before the police she told about the incident and accordingly, the complaint lodged as per Ex.P1. She further deposes that two days after lodging the complaint, the police came to her house and asked her to show bath room and accordingly, she shown the place of incident and the police took her signature in a paper i.e., mahazar Ex.P2. Further, she deposes that she was taken for medical examination 10 SPl CC No.274/2013 and she also identified the accused, who stood before the court during the evidence.
16. P.W2 by name Prakash deposes that the P.W1 victim is his daughter, through his first wife and she told her aunt about the incident, i.e., the accused removed her clothes and committed rape on her and he has identified the accused, who was standing in the court and the accused is running workshop.
17. P.W3 by name Chandarashekhar the officer of FSL deposes that on 25.9.2013 the complainant police sent six articles through PC Shivashankarappa for FSL, he received the same which are nail clipping, pubic hair, vaginal swab, chudidar top and also one pantee, which are subjected to examination and after examination it was returned to the police along with report, which is marked as Ex.P6 along with specimen seal marked as Ex.P4.
18. P.W4 Dr. Preya Kumar Radiologist deposes that on 13.9.2013 the victim was sent to radiological examination to ascertain her age, accordingly he examined her and given certificate as per Ex.P5 stating that the victim was aged between 12 to 15 years.
19. P.W5 Indira deposes that the victim is her sister's daughter, her sister died 10 years back, that on 12.4.2013 victim had gone to school and she came from school at 12.45 P.M., at that time the accused came and asked for water and when she gave 11 SPl CC No.274/2013 water tumbler to the accused, he dragged her to bath room and committed rape on the Victim girl.
20. P.W6 Govindamma, grand mother of the victim also deposes that the victim is her grand daughter, the accused is running workshop in the house situated in front of her house, that on 07.09.2013, the victim told about the incident to her aunt, thereby she came to know about the incident.
21. P.W7 Dr. Jagadeesh deposes that on 13.9.2013 the victim was brought with the history of sexual assault on her by the accused on 7.9.2013 and he conducted general examination, thereafter sent her to Gynecological examination.
22. P.W8 Janakamma Head Mistress deposes that she has issued certificate attesting the date of birth of the victim as per admission register Ex.P6 whereby the victim's date of birth is 9.3.2000.
23. P.W9 Chandrashekhar deposes that he knows the accused, he [PW9] is the owner of the house where victim girl-CW1 and her father-CW2 is residing in one portion of the house as a tenant and further the accused herein running a welding shop in front of the said building, in September-2013, one day at about 7.30 P.M., the grandmother of the victim girl told him that the accused on the pretext of asking water from the victim girl, dragged her to the bathroom and committed rape on her.
12 SPl CC No.274/201324. PW10-Ramesh-neighbour of the victim girl's house deposes that he is staying in one of the houses situated at the said Vathara belonging to PW9-Chandrashekar, victim girl also residing in one of the portions in the said building, one day, the complainant police asked him to come to the house of PW1 and asked him to sign on a document, he did not know the accused and also not known about the alleged incident. Hence, the prosecution has treated this witness as hostile and cross-examined him. He [PW10] has given his statement before the complainant police as per Ex.P7.
25. PW11-Palani is a witness to the spot Mahazar as per Ex.P2. He deposed similarly to the evidence of PW10. His signature to Spot Mahazar is as per Ex.P2(b). He admitted his signature. He does not know what is written in Ex.P2. Hence, the prosecution has treated this witness as hostile and cross-examined him. He [PW11] has given his statement before the complainant police as per Ex.P9.
26. PW12-Sridhar.M- Head Constable deposes about securing of the accused from his house on 12.9.2013.
27. PW13-Dr.Dileep Kumar.K.B., deposes about the medical examination conducted on the accused and given Report as per Ex.P10.
28. PW14-Shivashankarappa- Head Constable deposes regarding taking of articles to FSL for medical examination.
13 SPl CC No.274/201329. PW15-Dr.Parvathibai-Gynecologist, K.C.General Hospital, Mallehswaram, Bangalore deposes that on 12.9.2013 at about 10.30. P.M., the victim girl aged 13 years was brought by the WASI [Woman Assistant Sub-Inspector] of Srirampuram Police Station on the history of rape on 7.9.2013 and she examined her and OPD Card is marked as per Ex.P11 and Opinion of the Doctor is marked as per Ex.P12.
30. PW16-Sumithra-witness to spot mahazar and also friend of the victim girl's Aunt and a hearsay witness deposes that, CW3 told her about the incident regarding the accused committed rape on the victim girl and accordingly, she had gone to the house of the victim girl, wherein the complainant police conducted Spot mahazar as per Ex.P2 and she has signed on the mahazar as per Ex.P2(c).
31. PW17-Kamakshi-friend of the victim girl's aunt and also hearsay witness deposes that CW3 informed about the act committed by the accused on the victim girl and the complainant police enquired her and she has given her statement before the complainant police.
32. PW18-Meenakshi-Maternal Aunt of the victim girl deposes that the victim girl is her maternal aunt's (£À£Àß CvÉÛAiÀÄ ªÀÄUÀ½gÀÄvÁÛ¼É). The victim girl lost her mother. She has been residing in her grandmother's house situated at Srirampuram.. In the year, 2013, the victim girl was studying in 7th Standard at Srirampuram Government School,, that on 12.9.2013, when she was in her 14 SPl CC No.274/2013 house, the victim girl's grandmother telephoned to her [PW18] and told that, the accused had committed rape on the victim girl. Thereafter, she enquired with the victim girl and they gone to the complainant Police Station to lodge the complaint.
33. PW19-C.Sampath Kumar-Dy.S.P, Karnataka Lokayuktha, Bangalore deposes that on 12.9.2013, the victim girl in between 3 P.M., to 3.30 P.M., came to the complainant Police Station and lodged the complaint as per Ex.P1, after receipt of the complaint, he registered a case in Cr.No.193/2013 and sent the FIR as per Ex.P13, he sent the victim girl to K.C.General Hospital, Malleshwaram, Bangalore for medical examination along with woman assistant sub-inspector of police, he deputed ASI[CW19] and CW20 Sridhar.M., to secure the accused, on the same day, he recorded the statements of the witnesses who are CWs-2 to 5 and on the same day, evening at about 7.30 P.M., the accused was produced before him by CWs-19 and 20, he arrested the accused and recorded his voluntary statement and as it was night, he kept the accused in police station, after the medical examination, the victim girl was produced before him, thereafter she went to her aunt's house, on 13.9.2013, the accused was sent to Victoria Hospital for medical examination, after the medical examination, again the accused was produced before him and thereafter the accused was produced before this court, he issued notices to CW10 and CW11 calling them to stand as panch witnesses and on the same day i.e., on 13.9.2013, he had gone to the place shown by the victim girl in between 3.30 P.M., to 4.30 P.M., and conducted mahaer as per Ex.P2, he recorded the statements of CWs-6 to 9 15 SPl CC No.274/2013 and CW7 given statement before him as per Ex.P7, he received the birth certificate of the victim girl from her school as per Exs.P14 and P15, he also received articles seized by the Doctor at the time of examination of the victim girl from Woman Assistant Sub-Inspector of Police, as per MOs-1 to 6, CW11 has given statement before him as per Ex.P9, he also identified the accused.
34. PW20- Sureshbabu-Police Constable deposes about the submission of the FIR to the court.
35. PW21-Janardhan.B.L. deposes about the receipt of the record from CW21 [PW19] on 27.9.2013, on 3.10.2013, he received Radiological Report as per Ex.P5 from WASI [Woman Assistant Sub-Inspector] and he kept it in file, thereafter he handed over the further investigation to CW25 for further investigation.
36. On the basis of the evidence of aforesaid witnesses, learned Public Prosecutor submitted his arguments that the accused has committed the offence and this court can rely on the evidence of the prosecution witness to convict the accused.
37. On the other hand, the learned defence counsel submitted that there are many contradictions, inconsistencies, omissions in the evidence of the prosecution witnesses and therefore this court cannot rely upon the evidence of the prosecution witnesses, so as to base conviction against this accused.
16 SPl CC No.274/201338. Further the learned defence counsel would submit:
. there is delay of 5 days in lodging the complaint, .there are no injuries on the victim girl, as per the Doctor evidence, the hymen of the victim girl is in-tact, thereby there was no rape at all, .Investigating Officer not examined by the prosecution, .the bathroom is measures 2 feet X 3 feet and therefore, absolutely it cannot be possible for the accused to commit such kind of offence in the said small place, .the owner of the entire building by name Chandrashekar, who is examined as PW9, he instigated the complainant to lodge this kind of false complaint against this accused, as there was dispute between the accused and the said Chandrashekar-PW9 with regard to the monetary transactions and therefore instigated the complainant to lodge false complaint against the accused, it is PW9-Chandrashekar who committed rape on the victim girl, however, he [PW9] has shifted his commission of offence on this accused stating that this accused has committed rape on the victim girl.
. MOs-1 to 3 not identified by the Victim girl . if really the incident had happened, the Victim girl could have raise hue and cry.
39. After hearing the arguments of the learned Public Prosecutor and the learned defence Counsel, now it is necessary to scrutinize the evidence of prosecution witnesses cautiously by considering their version in the cross-examination.
17 SPl CC No.274/201340. First-of-all, the learned defence counsel argued that there is inordinate delay of 5 days in lodging the complaint and the said delay of 5 days is not explained by the prosecution. In so far as this Point is concerned, I have gone through the evidence of PW1. According to PW1-victim girl, the incident happened on 7.9.2013, but, she did not say about the incident to any person and she told her Aunt on 11.9.2013, thereby there is 3 days delay to inform about the incident by the victim girl to her aunt. The complaint is registered on 12.9.2013 in between 3 P.M., to 3.30 P.M. It is true that there is delay in lodging the complaint. During the course of cross-examination of PW1, a question is put to PW1 that whether she was having knowledge to inform the police about the said incident, for that, she [PW1] told that she had knowledge to inform the police, but she feared about the incident and she did not inform the police. Further, another question is put to PW1 that, whether she told the incident to her friends, for that, she [PW1] told that she informed the said incident to her friend by name Pooja, when Pooja asked her [PW1] why she was weeping. The learned defence counsel argued that though the victim girl told the said incident to Pooja, said Pooja was not cited by the prosecution as Investigating Officer as prosecution witness and therefore it is argued that the incident not at all happened.
41. As reply to the said arguments, Learned Public Prosecutor argued that, though the said Pooja were cited as a witness and examined by the prosecution, nothing would have happened to the case. Said Pooja is said to be hearsay witness. Further the learned Public Prosecutor argued that though there is 18 SPl CC No.274/2013 delay in lodging the complaint, strict yardsticks should not be attached in rape cases of this nature. In support of his arguments, the learned Public Prosecutor relied on the decision reported in AIR 2004 Supreme Court 4404, it is pertaining to delay in lodging the FIR, wherein it is observed that:
"Delay in lodging FIR, per se is not a mitigating circumstance for accused when there was accusation of rape-Mere delay in lodging FIR does not render prosecution version brittle".
Thereby though there is delay in lodging the complaint of 5 days and though it is not properly explained by the prosecution, it will not fatal to the case of the prosecution, because on going through the position of the victim girl that she was living with her grandmother, she lost her mother, her father married another woman and residing somewhere else, under such situation, she has become the victim of the circumstances. Therefore, the arguments canvassed by the learned defence counsel that there is delay of 5 days in lodging the complaint, which creates doubt about the prosecution story and therefore it is not to be believed, cannot be accepted.
42. Second argument of the learned defence counsel that by looking into the size of the room in which the alleged incident had happened it is only 2' X 3'. Therefore, there was no possibility of incident happened in that area of 2' X 3' place i.e., bathroom. In that regard, the learned Public Prosecutor submitted that, the accused has committed rape on the victim girl in standing position and therefore, place i.e., 2'X 3' bathroom is sufficient to commit the said offence. Therefore, the arguments canvassed by the 19 SPl CC No.274/2013 learned defence counsel that the place i.e., bathroom is not sufficient to commit the said offence, cannot be acceptable.
43. The third argument of the learned defence counsel that as per the evidence of the Doctor, no external injuries on the victim girl and further hymen was intact and therefore the accused has not committed the rape on the victim girl and the incident has not at all happened. In that regard the learned defence counsel during the course of his arguments brought to the notice of this court with regard to the evidence of the Doctor-PW15 and Opinion given by PW15 as per Ex.P12. PW15 deposed that on genital examination of the victim girl, her hymen was in-tact and the organs were normal and further as per Ex.P12-Medical Certificate it is mentioned that the Doctor is of the opinion that no act of sexual intercourse has been occurred. Therefore, the learned defence counsel submitted that the incident not at all happened.
44. On the other hand, learned Public Prosecutor argued that though the Doctor deposed that there was no sexual intercourse and hymen was intact, but, in the present case, the accused has not completely inserted his penis into the vagina of the victim girl, there was no complete penetration and therefore, rupture of hymen was not necessary. In that regard, learned Public Prosecutor brought to the notice of this court, the evidence elicited from PW15 by putting questions to her. PW15 deposed that in case of Molestation, rupture of hymen is not necessary and in case of complete penetration, rupture of hymen will be occurred. Further 20 SPl CC No.274/2013 she [PW15] deposed that if the accused touches the vagina of the victim girl or not entered his penis in depth and there was no complete penetration, rupture of hymen not necessary. In that regard, the learned Public Prosecutor has relied upon a decision reported in (1998) 8 Supreme Court Cases 635, wherein it is observed t hat:
" Non-rupture of hymen or absence of injury on the victim's private part-Held, to constitute rape, penetration, however slight is sufficient- Prosecutrix subjected to sexual intercourse in a standing posture indicating absence of any injury on her private parts Opinion of doctor that no rape was committed cannot throw-out an otherwise cogent and trustworthy evidence of the prosecutrix".
In another decision relied by learned Public Prosecutor reported in 1998 Cril.L.J 1597, wherein it is observed that:
"Penal Code-S.376-Rape-Proof-Even slight degree of penetration is sufficient to constitute offence under S.376- Unruptured hymen do not always lead to inference that no rape was committed.
Therefore, learned Public Prosecutor argued that in the present case as per the evidence of PW1 she deposed that, the accused not inserted his penis completely into her vagina. For better understanding, the evidence of PW1 is reproduced as under:
"DgÀÉÆæAiÀÄÄ vÀ£Àß MAzÁ ªÀiÁqÀĪÁ eÁUÀªÀ£ÀÄß £À£Àß MAzÁ ªÀiÁqÀĪÁ eÁUÀPÉÌ ElÄÖ ªÀiÁrzÀÄÝ CAzÀgÉ ªÉÄÃ¯É ªÀiÁvÀæ ElÄÖ ªÀiÁqÀÄwÛzÝÀ£ÀÄ, M¼À¨sÁUÀPÉÌãÀÄ ¥ÀÇtðªÁV EnÖgÀ°®è JAzÀÄ ¸ÁQëzÁgÀ¼ÀÄ ºÉýgÀÄvÁÛ¼É. ¸ÁQëzÁgÀ¼ÀÄ ªÀÄÄAzÀĪÀgÉzÀÄ CAzÀgÉ D eÁUÀPÉÌ ElÄÖ E¯Áèr¸ÀÄwÛzÀÝ£ÉAzÀÄ ºÉýgÀÄvÁÛ¼É."
Therefore, there may not be chances of rupture of hymen and accordingly, the arguments canvassed by the learned defence 21 SPl CC No.274/2013 counsel that there was no rupture of hymen of the victim girl and hence the incident was not at all happed, cannot be acceptable.
45. The fourth and foremost arguments canvassed by learned defence Counsel is pertaining to false implication of this accused at the instigation of PW9-Chandrashekar who had an enmity against this accused in a financial matter. He argued that PW9 by name Chandrashekar threatened the victim girl to lodge complaint against Murugan [accused herein] with regard to the rape and as PW9 threatened her [PW1] she lodged the complaint on 11.9. 2013. PW1 has admitted the said suggestion made by the learned defence counsel and answer given by her that she lodged the complaint because PW9 threatened her to lodge the complaint. Further she also admitted that there were discussions in the house how to lodge complaint and at that time, PW9 was also present in the house and she also admitted that PW9 asked them to lodge complaint against Murugan. Therefore, the learned defence counsel argued that as per the statement made by PW1 during the course of her cross-examination, she consistently stated that, because of PW9 threatened her to lodge the complaint, she lodged the complaint against this accused, therefore, the learned defence counsel argued that, this is a false complaint given by PW1 at the instigation of PW9-Chandrashekar and therefore, the accused has not committed any offence against the victim girl.
46. In the statement recorded under Sec.313 of Cr.P.C the accused has answered that, there was financial transaction between the accused and PW9 and PW9 had to give Rs.1,80,000/-
22 SPl CC No.274/2013to him [accused] and when he [accused] asked PW9, PW9 refused to give the same and therefore, PW9 instigated the victim girl to lodge the complaint against the accused. However, it is pertinent to note that the accused except the said statement has not placed any evidence to show that there was financial transaction between himself and PW9-Chandrashekar. Even during the course of cross-examination of PW9, no specific suggestion is put to PW9 that he had taken a sum of Rs.1,80,000/- from the accused and when the accused asked him [PW9] to repay the said sum, he instigated the victim girl to lodge the complaint against the accused
47. During the course of cross-examination of PW1-victim girl, suggestion is put to her that, galata had taken place between the accused and PW9-Chandrashekar, for that, PW1 stated that she did not know. Further it is suggested to her [PW1] that with regard to the galata took place between the accused and PW9, whole vatara people knew about the incident. However, none of them are examined by the accused to prove his defence.
48. On perusal of the deposition of PW1, it is true that PW1 stated that at the instigation of PW9, she lodged the complaint, but further she has denied the suggestion put to her that, the accused has not at all committed rape on her. Therefore, the arguments canvassed by the learned defence counsel that because of enmity between the accused and PW9, false complaint has been lodged by the victim girl against the accused, cannot be accepted.
23 SPl CC No.274/201349. Further the learned defence counsel argued that the incident said to have happened in the vatara at the time of incident, the victim girl is not alone in the house. If at all such incident had happened then the neighbouring residents would have known about the said fact. In that regard, the learned Public Prosecutor submitted that, the incident happed when the victim girl came from school at 12.30 P.M., on the date of incident at that time, her grandmother had gone to her work and the neighours were also not there. During the course of cross-examination of PW1, she specifically deposes that at the time of incident, there were no persons in vatara, she tried to cry, but, the accused hold her mouth and did not allow her to cry. Therefore, the arguments canvassed by the learned defence counsel that because the victim girl did not raise any alarm, at the time of incident and further no neighbour came to help the victim girl and thereby the incident had not at all happened, cannot be sustainable.
50. Further the learned defence counsel argued that, the clothes seized in this case were worn by the victim girl. In her cross-examination PW1 deposes that the clothes MOS-1 to 3 in this case were not worn by her during the incident. It is pertinent to note that the said clothes were taken by the Doctor at the time of medical examination on 13.9.2013 and the incident happened on 7.9.2013. Therefore, she [PW1] rightly answered that, she did not wear the said clothes MOs-1 to 3 on the date of incident. If at all PW1 deliberately making false allegations against this accused, then she would have answered that, she wore the said clothes MOs-1 to 3 on the date of the incident. Therefore, the arguments 24 SPl CC No.274/2013 canvassed by the learned defence counsel that the victim girl did not worn MOs-1 to 3 clothes at the time of incident, cannot be a ground to reject the evidence of PW1 to say that the incident not happened.
51. Further, the learned defence counsel argued that, the Investigating Officer not examined by the prosecution. On perusal of the evidence of prosecution, the prosecution examined PW19. He is one of the Investigating Officer. He deposed with regard to the receipt of the complaint, registering of FIR, conducting spot mahazar and sending the victim girl to the medical examination, securing the accused and sending him to the medical examination and recording the statements of CWs-2 to 11 and CWs-19 and 20. Therefore, the arguments canvassed by the learned defence counsel that the Investigating Officer not examined, is not sustainable.
52. Learned Public Prosecutor argued that, as per Sec.29 of the provisions of POCSO Act, 2012 Act, there is a presumption that:
"Sec.29-POCSO Act, 2012 Act: Where a person is prosecuted for committing or abetting or attempting to commit any offence under Secs. 3, 5,7 and 9 of the Act, the Special court shall presume that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved".
In this case, the prosecution by examining the victim girl, aunt of the victim girl, police officials with regard to the investigation, has proved that the accused has committed the 25 SPl CC No.274/2013 offence. If the accused contended that, he has not committed the offence, then he has to place the contrary evidence to disprove the evidence of prosecution. In this case, the accused has not placed any contrary evidence to prove that, he [accused] has not committed any offence. Therefore, the learned Public Prosecutor submitted that, the evidence of the prosecution can be accepted to convict the accused. In that regard, learned Public Prosecutor has relied on a decision reported in (2003) 8 Supreme Court cases 552 wherein it is observed that:
"Evidence of victim-Corroboration-Requirement of-Held, corroboration is not the sine qua non for conviction in rape cases-An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes the judicial mind as probable- Thus plea raised regarding lack of corroboration in the instant case, held, liable to be rejected."
Further, it is held that:
"The fact that sweeping changes were introduced reflects the legislative intent to curb with an iron hand, the offence of rape which affects the dignity of a woman. When a woman is ravished, what is inflicted is not merely physical injury but a deep sense of some deathless shame".
53. On analyzing the evidence of PWs-1 to 21 witnesses, more specifically the evidence of PW1, the evidence of Doctor-PW15, aunt of the victim girl-PW5, the evidences are corroborated each other and their evidence trustworthy to believe. Considering and accepting the evidence of the prosecution witnesses, this court is of the opinion that the prosecution has proved the guilt of the accused that he [accused] has committed the offences punishable under 26 SPl CC No.274/2013 Sec.376 of IPC and under Sec.4 of POCSO Act, 2012 Act. Accordingly, I answer Point No.1 in the Affirmative.
54. During the course of appreciation of the evidence of PW1- Victim girl, it has come to the notice of this court that, at Page No.7 of evidence of PW1, to the suggestion made by the learned defence Counsel, PW1 has answered that, PW9 by name Chandrashekar has also committed rape on her, she lodged the complaint in the same Police Station i.e., Srirampura Police Station in that regard, the medical examination also conducted, the said Chandrashekar one month prior to the present incident [7.9.2013], committed rape on her, she did not tell the same in her house, as the said Chandrashekar threatened her.
55. In order to better appreciation, it is necessary to reproduce the deposition of PW1:
"£ÀªÀÄä ªÀÄ£É EgÀĪÀ ªÀoÁgÀzÀ°è MlÄÖ 7 ªÀÄ£ÉUÀ½ªÉ. J¯Áè ªÀÄ£ÉU¼ À ÀÄ ¥ÀPÀÌ ¥ÀPÀÌ EªÉ. D ªÀÄ£ÉUÀ¼°è E§âgÀÄ CxÀªÁ ªÀÄÆgÀÄ d£À EgÀÄvÁÛg.É F ªÀÄ£ÉU¼ À À ªÀiÁ°ÃPÀ ZÀAzÀæ±ÉÃRgï. ªÀÄ£É j¥ÉÃj ªÀiÁr¸À®Ä, PÉƼÁ¬Ä j¥ÉÃj ªÀiÁr¸À®Ä ZÀAzÀæ±ÉÃRgï £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀÄ ºÉÆÃUÀÄwÛzÀÝgÀÄ C£ÀÄߪÀÅzÀÄ ¸Àj. CªÀgÀ ¥ÀjZÀAiÀÄ £À£ÀUÀÄÁ EzÉ C£ÀÄߪÀÅzÀÄ ¸Àj . DgÉÆæAiÀÄ «gÀÄzÀÞ zÀÆgÄ PÉÆlÖ £ÀAvÀgÀ ªÀÄ£É ªÀiÁ°ÃPÀgÁzÀ ZÀAzÀæ±ÉÃRgï «gÀÄzÀÞ ¸ÀºÁ CªÀgÀÄ £À£ÀUÉ CvÁåZÁgÀ ªÀiÁrzÁÝgÉAzÀÄ EzÉà ¥Éưøï oÁuÉAiÀÄ°è zÀÆgÀÄ PÉÆmÉÖ£ÀÄ C£ÀÄߪÀÅzÀÄ ¸Àj. CªÀgÀ «gÀÄzÀÞ F vÀgÀºz À À PÉøï PÉÆmÁÖUÀ DUÀ®Æ ¸ÀºÁ £À£ÀߣÀÄß D¸ÀàvÉæUÉ ªÉåzÀåQÃAiÀÄ ¥ÀjÃPÉëUÉAzÀÄ PÀgÉzÉÆÃAiÀÄÝgÀÄ C£ÀÄߪÀÅzÀÄ ¸Àj.
¢£ÁAPÀB 07-09-2013 gÀAzÀÄ ZÀAzÀæ±ÉÃRgï £À£U À ÃÉ CvÁåZÁgÀ ªÀiÁrzÀÄÝ C£ÀÄߪÀÅzÀÄ ¸ÀjAiÀÄ®è. AiÀiÁªÀ ¢£À ZÀAzÀæ±ÉÃRgï ¤ªÀÄUÉ CvÁåZÁgÀ ªÀiÁrzÀÄÝ JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀ¼ÀÄ ªÀÄÄgÀÄUÀ£ï WÀl£É £ÀqÀÉAiÀÄĪÀÅzÀQÌAvÀ MAzÀÄ wAUÀ¼À ªÉÆzÀ®Ä CvÁåZÁgÀ ªÀiÁrzÉÝAzÀi ºÉýgÀÄvÁÛgÀÉ. ZÀAzÀæ±ÉÃRgï £À£Àß ªÉÄÃ¯É CvÁåZÁgÀ ªÀiÁrzÀ §UÉÎ £Á£ÀÄ 27 SPl CC No.274/2013 ªÀÄ£ÉAiÀÄ°è AiÀiÁjUÀÄÁ ºÉüÀ°®è. ZÁPÀÄ vÉÆÃj¹ ZÀAzÀæ±ÉÃRgï £À£ÀUÉ ¨ÀsAiÀÄ ¥Àr¹zÀj Ý AzÀ £Á£ÀÄ CªÀgÀ §UÉÎ zÀÆgÀÄ PÉÆnÖgÀ°®è."
56. On perusal of the aforesaid evidence of PW1 and in exercise with the provisions under Sec.19 of POCSO Act, 2012, this court opined that it is just and proper to inform the IO of the complainant Police Station to take action against PW9-Chandrashekar with regard to the offence committed by him against this Victim girl.
Sec.19 of POCSO Act, 2012, provides that:
"Reporting of offences: Notwithstanding any contained in the Code of Criminal Procedure, 1973, any person, who has apprehension that an offence under this Act is likely to be committed or has knowledge that such an offence has been committed, he shall provide such information to the:
(a) Juvenile Police Unit or
(b) The local police".
57. POINT NO.2: In view of my aforesaid discussions, I proceed to pass the following ORDER In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is found guilty of the offences punishable under Sec.376 of IPC and under Sec.4 of POCSO Act, 2012.
MOs-1 to 6 being worthless are ordered to be destroyed after the appeal period is over.
28 SPl CC No.274/2013To hear regarding sentence.
[Dictated to the Stenographer partly and directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 26th day of November 2016).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
29.11.2016 HEARD REGARDING THE SENTENCE:
The accused was produced before me. On hearing the accused personally, he submitted that he is doing welding business, he is having wife and children, his daughter is suffering from nasal bone ailments [he has produced medical certificate in that regard], he is eking out his livelihood by running the welding shop and he has meager income and therefore, he prays for taking lenient view in imposing the sentence.
On the other hand, learned Public Prosecutor submitted that the accused in this case has committed the offences against the victim girl aged 13 years by taking advantage of her situation. Further the accused had knowledge that PW9-Chandrashekar had committed similar offence against this victim girl one month prior to the present date of incident and if that being so, it is his [accused] boundened duty to report the matter to the police and instead of reporting the matter to the police, he himself committed the offence against the victim girl, by misusing her helplessness and haplessness situation, because her mother died and her father 29 SPl CC No.274/2013 contacted second marriage. She [victim girl] was living with her grand-parents. Her grand-mother is going to work in a factory and her grand-father is bed-ridden and therefore, learned Public Prosecutor submitted that maximum punishment has to be awarded against him (accused), if not, the accused will misuse the position of the child like that of the victim girl to fulfill his lust.
Further learned Public Prosecutor filed an Application on 28.11.2016 under Sec.19 of POCSO Act, 2012, to take action against PW9-Chandrashekar.
In this case, the accused is convicted for the offences punishable under Sec.376 of IPC and under Sec.4 of POCSO Act, 2012.
As per the Criminal Law Amendment Act, 2013, the offence punishable under Sec.376 of IPC reads:
" (1) Whoever, except in the cases provided for by sub-section(2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine".
In the present case, the offence committed by the accused comes within the purview of sub-section(1) of Sec.376 of IPC.
30 SPl CC No.274/2013Sec.4 of POCSO Act, 2012, provides punishment for penetrative sexual assault, which reads:
"Whoever commits penetrative sexual assault shall be punishable with imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life, and shall also be liable to fine".
On reading of the provisions of Sec.376(1) of IPC and Sec.4 of POCSO Act, 2012, both the provisions provides similar punishment.
However Sec.42 of POCSO Act, 2012, which provides alternative punishment reads:
"Where an act or omission constitute an offence punishable under this Act and also under Secs. ....375, 376 IPC, then, not withstanding anything contained in any law, for the time being in force, the offender found guilty of such offence, shall be liable to punishment under this Act or under the Indian Penal Code, as provides for punishment which is greater in degree".
In this case, the accused is found guilty under Sec.376 of IPC and under Sec.4 of POCSO Act, 2012. Looking into the act committed by the accused against the victim girl who was a minor, for imposing the punishment, the offence committed by the accused punishable under Sec.4 of POCSO Act, 2012, is taken into consideration.
As rightly submitted by learned Public Prosecutor, in the present case, the accused misused the helplessness and haplessness situation of the victim girl and committed rape on her, 31 SPl CC No.274/2013 further, he had the knowledge that PW9-Chandrashekar also committed rape on the Victim girl, without informing the said crime committed by PW9, he [accused] also committed rape on the Victim girl by taking advantage of her situation, therefore, this court is of the opinion that, the accused has to be awarded with higher degree of punishment and no lenient view can be taken in favour of the accused.
Considering the background of the accused i.e., he is having wife and children and his daughter is suffering from ailments and further also considering the crime committed by him against the victim girl who is minor in age, I proceed to pass the following:
SENTENCE The accused shall undergo rigorous imprisonment for a period of 10 years for the offence punishable under Sec.4 of POCSO Act, 2012 and to pay a fine of Rs.20,000/-. In default of payment of fine amount, the accused shall undergo simple imprisonment for a period of One Year. If the fine amount of Rs.20,000/- is recovered, a sum of Rs.15,000/- shall be paid to the victim girl towards compensation.
The period of detention undergone by the accused in judicial custody shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.32 SPl CC No.274/2013
Further, in so far as additional victim compensation, as provided under Sec.357A of Cr.P.C and Rule 7 of POCSO Act, 2012, is concerned, office is directed to call for Report from the complainant police with regard to the present status of the Victim girl so as to recommend to the District Legal Service Authority, Bengaluru, for awarding further compensation to the victim girl.
Further the Police Inspector of the complainant Police Station is directed to file FIR against PW9-Chandrashekar and register the case, if not already registered earlier, with regard to the rape committed by him on the victim girl of this case, as deposed by her during her course of evidence before this court and further after registering the case, the Police Inspector is directed to investigate into the matter afresh.
Copy of deposition at Page No.7 of PW1 is sent herewith and the Police Inspector of the complainant Police Station is directed to treat that evidence of PW1 as information so as to register case against PW9-Chandrashekar.
Office is directed to supply the free copy of this Judgment to the accused forthwith.
(Sentence Dictated to the Stenographer in the open court, transcript thereof is corrected and then signed by me in the Open Court on this the 29th day of November 2016).
[RAJESHWARI.N.HEGDE] LIV Addl., City Civil & Sessions Judge, Bangalore.33 SPl CC No.274/2013
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Victim girl CW1 19.4.2014
Pw.2 Prakash CW2 11.8.2014
Pw.3 Dr.Chandrashekar CW17 25.9.2014
Pw.4 Dr.Preya Kumar CW14 25.9.2014
Pw.5 Indira CW3 9.12.2014
Pw.6 Govindamma CW6 9.12.2014
Pw.7 Dr.Jagadish Siddappa Ganagi CW13 17.1.2015
Pw.8 Janakamma CW12 17.1.2015
PW.9 Chandrashekar CW9 17.1.2015
PW.10 Ramesh CW7 10.2.2015
PW11 Palani CW11 19.10.2015
PW.12 Sridhar.M CW20 20.10.2015
PW.13 Dr.Dileep Kumar.K.B CW16 6.11.2015
PW.14 Shivashankarappa CW21 6.11.2015
PW.15 Dr.Parvathibai CW15 11.12.2015
PW16 Sumithra CW10 11.12.2015
PW17 Kamakshi CW5 11.12.2015
PW18 Meenakshi CW4 11.12.2015
PW19 C.Sampath Kumar CW23 2.1.2016
PW20 Sureshbabu CW22 23.1.2016
PW21 Janardhan.B.L CW24 21.3.2016
Documents marked for the prosecution:
Ex.P1 Complaint
Ex.P1(a) Signature of PW1
34 SPl CC No.274/2013
Ex.P1(b) Signature of PW19
Ex.P2 Mahazar
Ex.P2(a) Signature of PW1
Ex.P2(b) Signature of PW11
Ex.P2(c) Signature of PW16
Ex.P2(d) Signature of PW19
Ex.P3 FSL Report
Ex.P3(a) Signature of PW3
Ex.P4 Sample seal
Ex.P4(a) Signature of PW3
Ex.P5 Radiological Age Estimation Certificate of the victim
girl
Ex.P5(a) Signature of PW4
Ex.P5(b) Signature of PW21
Ex.P6 Certificate issued by the Head Mistress, R.G.Iyer
High School, Srirampuram certifying the date of birth of the victim girl Ex.P6(a) Signature of PW8 Ex.P7 Statement of Sri.Ramesh-PW10 given before the complainant Police Station Ex.P8 Police Notice Ex.P8(a) Signature of PW11 Ex.P8(b) Signature of PW19 Ex.P9 Statement of Palani.K-PW11 given before the complainant Police Station Ex.P10 Medical certificate of the accused Ex.P10(a) Signature of PW13 35 SPl CC No.274/2013 Ex.P10(b) Signature of the accused Ex.P11 OPD card Ex.P11(a) Relevant portion in the said card Ex.P12 Gynecological opinion regarding the victim girl Ex.P12(a) Signature of PW15 Ex.P13 FIR Ex.P13(a) Signature of PW19 Ex.P14 Admission Register of the victim girl Ex.P15 Transfer certificate of the victim girl Ex.P16 Report given by Woman ASI Lakshmidevamma.H.N of the complainant Police Station Ex.P16(a) Signature of PW19 Ex.P16(b) Signature of Lakshmidevamma Material Objects marked for the prosecution:
MO1 Chudidhar Top MO2 Chudidhar Bottom MO3 Panty MO4 Nail clippings MO5 Pubic hairs MO6 Vaginal swab
Witness examined and documents marked for the accused: NIL LIV Addl., City Civil & Sessions Judge, Bangalore.36 SPl CC No.274/2013
26.11.2016 Judgment pronounced in open court:
[ Vide separate detailed Judgment] In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is found guilty of the offences punishable under Sec.376 of IPC and under Sec.4 of POCSO Act, 2012.
MOs-1 to 6 being worthless are
ordered to be destroyed after the appeal
period is over.
To hear regarding sentence.
[RAJESHWARI.N.HEGDE]
LIV ADDL., CITY CIVIL &
SESSIONS JUDGE,
BENGALURU CITY
37 SPl CC No.274/2013
29.11.2016 Sentence
[ Vide separate detailed Sentence]
The accused shall undergo
rigorous imprisonment for a period of
10 years for the offence punishable
under Sec.4 of POCSO Act, 2012 and
to pay a fine of Rs.20,000/-. In
default of payment of fine amount, the
accused shall undergo simple
imprisonment for a period of
One Year. If the fine amount of
Rs.20,000/- is recovered, a sum of
Rs.15,000/- shall be paid to the
victim girl towards compensation.
The period of detention undergone
by the accused in judicial custody
shall be set-off against the term of
imprisonment imposed on him, and
the accused shall undergo the
remaining sentence as provided under
Sec.428 of Cr.P.C.
Further, in so far as additional
victim compensation, as provided
under Sec.357A of Cr.P.C and Rule 7
of POCSO Act, 2012, is concerned,
office is directed to call for Report
from the complainant police with
regard to the present status of the
Victim girl so as to recommend to the
District Legal Service Authority,
Bengaluru, for awarding further
compensation to the victim girl.
38 SPl CC No.274/2013
Further the Police Inspector of the
complainant Police Station is directed
to file FIR against
PW9-Chandrashekar and register the
case, if not already registered earlier,
with regard to the rape committed by
him on the victim girl of this case, as
deposed by her during her course of
evidence before this court and further
after registering the case, the Police
Inspector is directed to investigate
into the matter afresh.
Copy of deposition at Page No.7 of
PW1 is sent herewith and the Police
Inspector of the complainant Police
Station is directed to treat that
evidence of PW1 as information so as
to register case against PW9-
Chandrashekar.
Office is directed to supply the free
copy of this Judgment to the accused
forthwith.
[RAJESHWARI.N.HEGDE]
LIV ADDL., CITY CIVIL &
SESSIONS JUDGE,
BENGALURU CITY
39 SPl CC No.274/2013