Bangalore District Court
State By R.T.Nagar Police vs Durgesh Kumar Goad on 30 January, 2016
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH-55)
Dated this the 30th day of January 2016
Present: SMT.VIJAYALAXMI S.UPANAL, M.A., LL.M.,
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
Spl.C.C.No.144/2015
COMPLAINANT State by R.T.Nagar Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Durgesh Kumar Goad,
S/o.Haricharan Goad, 21yrs,
R/at.1st Cross, Vinayaka Nagar,
Near Hosur Gate,
Bommanahalli,
Bangalore.
Permanent resident of:
Pachouli Village,
Mandala Police Station jurisdiction,
Karoli District, Rajasthan.
(By Sri.M.C.P., Advocate)
1. Date of commission of 27-01-2014
offence
2. Date of report of occurrence 28-01-2014
3. Date of arrest of Accused 12-01-2015
Date of release of Accused 11-03-2015
Period undergone in custody 01month-29days
by Accused
2 Spl.C.C.No.144/2015
4. Date of commencement of 22-12-2015
evidence
5. Date of closing of evidence 14-01-2016
6. Name of the complainant Hari Mohan Sharma
7. Offences complained of Sections 363, 354, 506 of
IPC & Section 11 r/w.12
of POCSO Act
8. Opinion of the Judge Accused found not guilty.
9. Order of sentence As per the final order
JUDGMENT
The Police Inspector, R.T.Nagar Police Station, Bangalore has submitted charge sheet against the accused for the offences punishable under Section 363, 354, 506 of IPC and Section 11 read with Section 12 of POCSO Act, 2012 in Crime No.33/ 2014.
2. The brief facts of the prosecution case are as under:
On 27-01-2014 at about 12.30noon, within the jurisdiction of R.T.Nagar, Bangalore, when the victim girl was moving towards Ganga Nagar on her two wheeler vehicle, the accused came on the way of victim girl, made her to stop her vehicle, kidnapped her, took her to the house of his friend situated at Chamundi Nagar, forcibly removed her clothes and 3 Spl.C.C.No.144/2015 took naked photos of the victim minor girl, thereafter kept her under threat of life, if she has disclosed the said incident to anybody else. Hence, this charge sheet.
3. On the basis of the complaint lodged by the complainant-Cw.1 the case is registered against accused for the offences punishable under Section 363, 354, 506 of IPC and Section 11 read with Section 12 of POCSO Act, 2012 in Crime No.33/2014.
4. After completion of investigation, the investigation Officer has submitted charge sheet against the accused for the offences punishable under Section 363, 354, 506 of IPC and Section 11 read with Section 12 of POCSO Act, 2012.
5. After receiving the charge sheet, cognizance was taken and registered in Special Criminal Case. By securing the presence of accused before the Court, the copies of charge sheet and other prosecution papers were supplied to the accused.
6. After hearing both parties on the charge to be framed against the accused this Court has framed charge against the accused for the offences punishable under Section 363, 354, 506 of IPC and Section 11 read with Section 12 of 4 Spl.C.C.No.144/2015 POCSO Act, 2012 in Crime No.33/2014.
7. The charge was framed, read over and explained to the accused in the language known to him. The accused has pleaded not guilty and claimed to be tried. Hence, prosecution was called upon to lead evidence on its side to prove the guilt of the accused.
8. In order to prove the guilt of the accused, the prosecution has examined in all Pw.1 to Pw.5 and got marked Ex.P1 to Ex.P8 and MO1.
9. After recording the evidence adduced by the prosecution, the statement of the accused under Section 313 of Cr.P.C has been recorded. All the incriminating subsistence appearing against him in the evidence of the prosecution witnesses has been read over and explained to the accused in the language known to him. The accused has totally denied the same. Total denial is the defense of accused.
10. Heard argument.
11. The points that arise for my consideration are as under:
1. Whether the prosecution has proved beyond all reasonable doubt that on 27-1-2014 at 5 Spl.C.C.No.144/2015
12.30noon within the jurisdiction of R.T.Nagar Police Station, Bangalore, when the victim-girl was going on her two-wheeler vehicle towards Ganga Nagar, the accused wrongfully restrained her near Mamatha School and kidnapped her forcibly, took her to his friend's room situated at Chamundi Nagar, Bangalore, thereby kidnapped her from the custody of her lawful guardian without the consent of such guardian thereby committed an offence punishable under Section 363 of IPC?
2. Whether the prosecution has proved beyond all reasonable doubt that during the same period, time and place, the accused with an intention to outrage the modesty of Cw.2-minor victim girl, he has wrongfully restrained her from moving further near Mamatha School, kidnapped her, took her to his friend's room, forcibly removed her clothes and took her naked photos, thereby committed an offence punishable under Section 354 of IPC?
3. Whether the prosecution has proved beyond all reasonable doubt that during the same period, time and place, after kidnapping the minor victim girl, the accused forcibly took her to his friend's room, removed her clothes, took her naked photos, outraged her modesty and gave her life threat that if she disclosed the said fact to anybody else, thus committed criminal intimidation with intent to cause alarm to victim-girl and committed an offence punishable under Section 506 of IPC?
4. Whether the prosecution has proved beyond all reasonable doubt that during the same period, time and place, the accused having knowledge that the victim girl is minor, with sexual intent kidnapped her, forcibly took her to his friend's 6 Spl.C.C.No.144/2015 room, made her naked, took her naked photos and thus harassed the minor victim girl sexually, thereby committed an offence punishable under Section 11 read with Section 12 of POCSO Act, 2012?
5. What Order?
12. My findings on the above points are as under:
Point No.1: In the Negative Point No.2: In the Negative Point No.3: In the Negative Point No.4: In the Negative Point No.5: As per the final order for the following REASONS
13. POINT Nos.1 to 4: All these points are inter- connected with each other. To avoid repetition of discussion, all these points are taken together for consideration.
14. It is for the prosecution to prove the guilt of the accused beyond all reasonable doubt and the prosecution has to prove the following facts:
◄ That on 27-01-2014 at about 12.30noon when the victim-girl was moving on her two wheeler vehicle towards Ganga Nagar, the accused came, wrongfully 7 Spl.C.C.No.144/2015 restrained her near Mamatha School and forcibly kidnapped her, took her to his friend's room.
◄ That the accused in his friend's room forcibly made the victim-girl naked and took her naked photos by keeping her under threat of life.
◄ That the accused after taking her naked photos gave life threat that if she disclosed the said incident to anybody else, he will kill her and gave alarm to her. ◄ That the accused during the relevant period having knowledge that the victim-girl is minor with sexual intent kidnapped her, took her to his friend's room, took her naked photos and sexually harassed her.
15. The prosecution in order to bring home the guilt of the accused, it has examined totally five witnesses viz., Pw.1 to Pw.5. Pw.1-Hari Mohan Sharma-the father of victim-girl, Pw.2- victim girl, Pw.3-Imthiyaz Beig and Pw.4-Riyaz - Panchas to seizure Mahazar marked at Ex.P7 and Pw.5-Arogyamma- S.J.P.U.Social Worker.
16. The prosecution in support of its case has produced Ex.P1 to Ex.P8. Ex.P1-Medical examination report relating to accused, Ex.P2-the complaint, Ex.P3-Mahazar, Ex.P4-requisition 8 Spl.C.C.No.144/2015 by Investigating Officer, Ex.P5-Statement of Pw.1, Ex.P6- Statement of victim-girl and Ex.P7-Seizure Mahazar and MO1- Camera.
17. Relying on these oral and documentary evidence, the Prosecution has submitted that accused has committed the offences alleged against him.
18. Before proceeding to appreciate the evidence available on record, it is proper to see the contents of the complaint lodged by Pw.1.
19. Ex.P2 is the complaint dated 28-01-2014. The complainant has alleged that on 27-01-2014 his daughter- victim-girl aged about 17years had left the house at 12.30p.m., in order to purchase some articles and gone towards Ganga Nagar on her two wheeler vehical. When she was going near Mamatha School, Manjunatha Layout, at about 12.45p.m., one Durgesh took his daughter forcibly to his friend's room near Chamundi Nagar, then he removed her clothes and took naked photos also, His daughter screamed and ran away from the said place, informed him about the incident. Later on he came to know that on that day along with said Durgesh some other 9 Spl.C.C.No.144/2015 persons were also present and they all threatened his daughter that if she told the same to anybody else they will kill her. Hence this complaint.
20. Keeping in mind the contents of the complaint, if we see the evidence of Pw.1, he has deposed that the victim-girl is his daughter, aged about 17years. The accused was residing in the neighbouring house. His daughter told him that since two years the accused is harassing her. Therefore, the complainant has lodged the complaint. He came to know through his daughter that the accused was calling her daughter through phone. He has identified his signature on complaint and said complaint is marked at Ex.P2 and his signature is marked at Ex.P2(a). He has shown his ignorance as to what is written in the complaint and denied that after lodging the complaint the police came to the spot of offence and drawn mahazar as per Ex.P3 on the spot shown by the victim-girl. He admits that he has refused to send his daughter for medical examination and the letter issued by Police Inspector is at Ex.P4. As this witness has not deposed as per the contents of the complaint, he is treated as hostile witness by the prosecution. 10 Spl.C.C.No.144/2015
21. In the cross-examination of Pw.1 by the learned Public Prosecutor he has denied that on 27-01-2014 at 12.30p.m., his daughter had been to Ganga Nagar to purchase some articles. He has denied that when his daughter was going near Mamatha School, the accused took his daughter forcibly towards Chamundi Nagar, kept his daughter in the room of his friend, removed her clothes and took the naked photos of the victim-girl. He has denied that thereafter his daughter started to scream and ran away from the spot and informed the same to her father. Further it is denied that the accused threatened the victim-girl that if she told about the incident to anybody else, he will kill her and in that regard he has lodged complaint as per Ex.P2.
22. Further Pw.1 has denied that on 28-01-2014 in between 04.00p.m., to 05.30p.m., the police came near Mamatha School and on the spot of offence they have drawn Mahazar as per Ex.P3. He has denied that on 29-01-2014 he gave his further statement that at the time of alleged incident, except the accused no other persons were present. He has denied that even though he has got knowledge about the 11 Spl.C.C.No.144/2015 incident and lodged complaint in that regard, in order to help the accused, he is deposing falsely. He has denied that he gave his further statement before police as per Ex.P5.
23. Pw.2 is the daughter of Pw.1, who is victim-girl aged about 17years. As per the prosecution records and the statement of victim-girl on 27-01-2014 in the afternoon when she was moving towards Ganga Nagar on her two wheeler, at about 12.45p.m., near Mamatha School the accused came on the way of victim-girl and made her to stop her vehicle. The accused called her to come with him, but she refused to go with him. However, the accused forcibly took her to the room of his friend situated at Chamundi Nagar, forcibly removed her cloths, took her naked photos . The victim-girl started to scream and ran away from the spot. At that time the accused gave life threat to her. She has returned to her house and informed the incident to her father. When she was in the house, one S.J.P.U. North Social Worker-Smt.Arogya Mary, visited to her house and recorded her statement as per Ex.P6. Further the camera seized in this case is the camera which was used by the accused to take naked photos of her.
12 Spl.C.C.No.144/2015
24. Keeping in mind the contents of statement of victim girl, if we go through the evidence of Pw.2, she has deposed that the accused was residing near her house and they both used to visit their respective houses and there was close friendship between them. Her parents asked her not to talk with him. She has deposed that the accused has not harassed her in any manner and he has not taken her any where else and even he has not taken her photos. As this witness has not supported the case of the prosecution she is treated as hostile witness by the prosecution. In her cross-examination by learned Public Prosecutor she has totally denied all the contents mentioned in her statement marked at Ex.P6. She has denied that her father has lodged complaint in that regard as per Ex.P2.
25. Pw.3-Imthiyaz Beig and Pw.4-Riyaz are Panchas to seizure Mahazar at Ex.P7. According to the prosecution on 12- 01-2015 in between 11.00a.m., to 12.00noon, the police called both these persons to the Police Station. At the instance of the accused, they and police had gone with the accused and the accused took them to his house and produced Casino camera in the presence of these two witnesses, as used by him to take the 13 Spl.C.C.No.144/2015 naked photos of the victim girl and police have drawn mahazar as per Ex.P7.
26. Pw.3 and Pw.4 both have denied the seizure of camera marked at MO1 and the drawing of the mahazar marked at Ex.P7. Therefore they are treated as hostile witnesses against the accused and in their cross-examination they both have denied the contents of Ex.P7.
27. Pw.5-Arogyamma-S.J.P.U.Social Worker has deposed that on 30-01-2014 when she was in the Office of S.P., on the phone call of Investigating Officer-R.T.Nagar Police Station, Bangalore she had gone to the said Police Station, wherein the victim-girl, her sister and other persons were present. She called the victim-girl separately and talked with her, enquired her. The victim-girl gave her statement that on 27-01-2014 at 12.45p.m., when she was going on her two wheeler near Manjunatha Layout, the accused came on the way, stopped the victim-girl, forcibly took her to his friend's room at Chamundi Nagar, forcibly removed her clothes and took her naked photos, when she started to scream, the accused gave her life threat. She has recorded the said statement and handed over the same 14 Spl.C.C.No.144/2015 to the Investigation Officer.
28. In the cross-examination of Pw.5, the suggestion is made that Pw.5 has not recorded the statement of victim-girl and she is deposing falsely at the instance of police. The said suggestion is denied by P.W.5.
29. Now, we have to see whether the statement recorded by Pw.5 is supported or corroborated by other available evidence on record.
30. As discussed above, Pw.3 and Pw.4 are Panchas to Ex.P7 and the seizure of MO1-Camera alleged to be used by the accused to take the naked photos of victim-girl. But these two witnesses are turned hostile and not supported the case of prosecution. Therefore the contents of Ex.P7 are not supported by the evidence of Pw.3 and Pw.4 and it is not useful to the prosecution to rely on Ex.P7.
31. Pw.2 is the victim-girl, on the basis of her say Pw.1 has lodged the complaint as per Ex.P2. But Pw.1 and Pw.2 being father and daughter both are turned hostile and in their cross-examination by learned Public Prosecutor they have totally denied the case of prosecution and the contents of complaint 15 Spl.C.C.No.144/2015 and their statements marked at Ex.P5 and Ex.P6 respectively. Therefore the evidence of Pw.1 and Pw.2 is not in accordance with the prosecution case, and they have not supported the case of prosecution.
32. Ex.P1 is the medical report relating to the accused and it is reported that there is nothing to suggest that the accused is incapable of performing the sexual intercourse. As per prosecution records, the date of birth of victim-girl is 04-05- 1997 and she was minor at the time of alleged incident.
33. Even though as per Ex.P1 the accused is capable of performing sexual intercourse, the report is not helpful to the prosecution in the absence of cogent and convincing evidence about the alleged incident. The material witnesses-Pw.1 and Pw.2 both are turned hostile against the accused and they have not supported the case of prosecution. However, several opportunities have been given to the prosecution to examine other witnesses mentioned in the charge sheet, but the prosecution has failed to keep them present before the Court and to lead their evidence. Cw.10 and Cw.11 are given up by the prosecution and Cw.3 to Cw.7, Cw.13 to Cw.15 are dropped. 16 Spl.C.C.No.144/2015 In the absence of cogent and convincing evidence, I am of the opinion that the prosecution has utterly failed to prove the guilt of accused beyond all reasonable doubt and the benefit of doubt goes to the accused. Hence, I answer above Points accordingly.
34. POINT No.5: In view of the above discussion, I proceed to pass the following:
ORDER Acting under the power conferred by Section 235(1) of Cr.P.C, the accused is acquitted for the offences punishable under Sections 363, 354, 506 of IPC and Section 11 read with Section 12, of POCSO Act 2012.
The bail bonds of accused and surety bond shall stand cancelled.
MO1-Camera shall be forfeited to the
Government.
(Dictated to the Judgment Writer, transcribed and typed by her and also computerized to my dictation by her. It is then corrected, revised and pronounced by me in the Open Court on this the 30th Day of January 2016).
(VIJAYALAXMI S.UPANAL) LIV Addl., City Civil & Sessions Judge, Bangalore.17 Spl.C.C.No.144/2015
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Hari Mohan Sharma Cw.1 22-12-2015
Pw.2 Swapna Cw.2 "
Pw.3 Imtiyaz Beig Cw.8 "
Pw.4 Riyaz Cw.9 "
Pw.5 Arogyamma Cw.12 14-01-2015
Documents marked for the prosecution:
Ex.P1 Medical examination With 22-12-2015
report of accused consent
Ex.P2 Complaint Pw.1 "
Ex.P2a Signature of Pw.1 Pw.1 "
Ex.P3 Mahazar Pw.1 "
Ex.P3a Signature of Pw.1 Pw.1 "
Ex.P4 Letter Pw.1 "
Ex.P4a Signature of Pw.1 Pw.1 "
Ex.P5 Statement of Pw.1 Pw.1 "
Ex.P6 Statement of Pw.2 Pw.2 "
Ex.P7 Mahazar Pw.3 "
Ex.P7a Signature of Pw.3 Pw.3 "
Ex.P7b Signature of Pw.4 Pw.4 "
Ex.P8 Study certificate With "
consent
Material objects marked for the prosecution:
MO1 Camera Pw.3 22-12-2015 18 Spl.C.C.No.144/2015 Witness examined, documents marked and material objects marked for the accused:
- Nil -
LIV Addl., City Civil & Sessions Judge, Bangalore.