Bangalore District Court
The State Of Karnataka vs Dilip @ Dilip Kumar @ Kaka on 15 June, 2019
IN THE COURT OF THE L ADDITIONAL CITY
CIVIL & SESSIONS JUDGE, BANGALORE
Dated this the 15th Day of June 2019
- : PRESENT: -
SMT. SUSHEELA. B.A. LL.B.
L Additional City Civil & Sessions Judge,
Bangalore
SPECIAL C.C. No. 539/2017
COMPLAINANT:
The State of Karnataka
By High Ground Police Station,
Bangalore. [Public Prosecutor-Bangalore]
/ VERSUS /
ACCUSED:
Dilip @ Dilip Kumar @ Kaka,
S/o. Ravivarma, 20 years,
R/at. No.76, Gowramma Building,
Behind Anjaneya Temple,
J.C. Nagar Main Road, J.C. Nagar,
Bengaluru-06. By Sri.R.V.R-Advocate]
1 Date of commission of offence 02-10-2017
2 Date of report of occurrence 03-10-2017
3 Date of arrest of Accused 04-10-2017
Date of release of Accused 08-11-2017
Period undergone in custody 4 Days & 1 month
by Accused
4 Date of commencement of evidence 24-01-2018
2 Spl.C.C.No.539/2017
5 Date of closing of evidence 03-11-2018
6 Name of the complainant Victim girl
7 Offences complained of Section 354 IPC
8-POCSO Act
8 Opinion of the Judge Accused is Acquitted
9 Order of Sentence As per the final order
JUDGMENT
This charge sheet filed by Sub-Inspector of Police, High Ground Police Station-Bangalore, against the accused for the offences punishable under Section 354 of IPC and Section 8 of POCSO Act, 2012.
2. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
On 02-10-2017 at about 08.10 p.m., to 08.17 p.m., when the victim girl-Cw.1 had been to grocery shop for purchase at 1st 'A' Main, 8th 'A' Cross, opposite to Ganesha Temple, near Public Library, the accused dragged her and tried to kiss her, when she ran away to P.G., he followed her and near P.G., and tried to touch her, she was saved by the watchman. On the basis of complaint lodged by the complainant, the police registered the case against the accused in Crime No.176/2017 under Section 3 Spl.C.C.No.539/2017 354 of IPC and Section 8 of POCSO Act, 2012.
3. The Investigation Officer has investigated the same and filed charge sheet against accused for the offences punishable under Section 354 of IPC and Section 8 of POCSO Act, 2012. Thereafter, after filing charge sheet, as usual the accused appeared before the Court and the copy of charge sheet furnished to the accused as contemplated under Section 207 of Cr.P.C. Thereafter, the learned counsel for accused submitted no arguments before framing charge. On perusal of charge sheet, there is prima-facie material available on record to frame charge against accused, hence charges framed under section 354 of IPC and Section 8 of POCSO Act. The contents of charge read over and explained to the accused in Kannada. The accused pleaded not guilty and submits crime to be tried. Thereafter the case against accused was set down for prosecution evidence.
4. The prosecution in order to establish the guilt of the accused has examined in all 7 witnesses as Pw.1 to Pw.7, got marked 6 documents as Ex.P1 to Ex.P6 and closed its side 4 Spl.C.C.No.539/2017 evidence. In view of available incriminating evidence appeared against the accused, he was examined under Section 313 of Cr.P.C., by recording his statement. He denied the alleged incriminating evidence appeared against him as false. Earlier to that he has complied the provisions of Section 437-A of Cr.P.C, by executing personal bond and surety. Thereafter arguments heard from both the sides and the matter is set down for judgment.
5. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that arise for my consideration are as under:-
1. DgÉÆæAiÀÄÄ ¢£ÁAPÀB02-10-2017gÀAzÀÄ ¸ÀAeÉ 8.10 jAzÀ 8.17gÀ £ÀqÀÄªÉ ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgz À À ºÉÊUËæAqï ¥ÉÇðøï oÁuÁ ªÁå¦ÛAiÀÄ ªÀ¸A À vÀ£UÀ g À ,À 1£Éà J ªÉÄãï, 8£Éà J PÁæ¸ï, gÀ¸A ÛÉ iÀÄ UÀuÃÉ ±À zÉêÀ¸ÁÜ£z À À JzÀÄgÀÄ ¥À©P è ï ¯Éʧæj ¥ÀPÀÌzÀ°£ è À QgÁtô ¸ÁªÀiÁ£ÀÄ vÀg® À Ä CAUÀrUÉ ºÉÆÃUÀÄwÛzÀÝ ¸ÁQë-1 C¥Áæ¥ÀÛ ªÀAiÀĹì£À ¨Á®QAiÀÄ£ÀÄß CvÁåZÁgÀ ªÀiÁqÀĪÀ GzÉÃÝ ±À¢AzÀ DPÉAiÀÄ£ÀÄß vÀ©â PÉÆAqÀÄ DPÉAiÀÄ C£ÀĪÀÄw E®èzÃÉ §®ªÀAvÀªÁV DPÉAiÀÄ£ÀÄß J¼ÉzÀÄPÉÆAqÀÄ DPÉAiÀÄ ¸ÀÛ£z À À ªÉÄÃ¯É ¸À² à ð¹ §¯ÁvÁÌgÀªÁV ªÀÄÄvÀÄÛ PÉÆqÀ®Ä ¥ÀæAiÀÄwß¹zÀÄ,Ý DPÉ UÁ§j¬ÄAzÀ DPÉ ªÁ¸ÀªÁVzÀÝ ¦fUÉ Nr ºÉÆÃzÀgÀÆ PÀÆqÀ ¤Ã£ÀÄ C°èUÀÆ »A¨Á°¹PÉÆAqÀÄ ºÉÆÃV DPÉAiÀÄ£ÀÄß ªÀÄvÉÛ ªÀÄÄlÖ®Ä ¥ÀæAiÀÄwß¹ vÀ«Ä½£À°è "¤£ÀߣÄÀ ß ºÉÃUÁzÀgÀÆ ªÀiÁr £Á£ÀÄ ªÀÄzÀÄªÉ ªÀiÁrPÉƼÀÄîvÃÉÛ £É" JAzÀÄ ºÉý C¥ÀgÁ¢üPÀ §® ¥ÀæAiÉÆÃUÀ ªÀiÁr ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A.354gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £À ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀªÀ ÁV gÀÄdĪÁvÀÄ ¥Àr¹gÀĪÀgÃÉ ?
2. DgÉÆæAiÀÄÄ ªÉÄÃ¯É ºÉýzÀ ¢£ÁAPÀ, ¸À¼ Þ ,À ªÀÄvÀÄÛ ¸ÀªÀÄAiÀÄzÀ°è C¥Áæ¥Àª Û A À iÀĸÀ̼ÁzÀ ¸ÁQë-1gÀªg À À ªÉÄÃ¯É CvÁåZÁgÀ ªÀiÁqÀĪÀ 5 Spl.C.C.No.539/2017 GzÉÃÝ ±À¢AzÀ C¥ÀgÁ¢üPÀ §®¥ÀæAiÀÉÆÃUÀ ªÀiÁrzÀÄ,Ý DPÉAiÀÄ£ÀÄß §®ªÀAvÀªÁV J¼ÉzÀÄPÉÆAqÀÄ DPÉAiÀÄ ¸À£ Û ª À £ À ÀÄß ¸Àà²ð¹, vÀ©â PÉÆAqÀÄ ªÀÄÄvÀÄP Û ÉÆqÀ®Ä ¥ÀæAiÀÄwß¹ DPÉAiÀÄ ªÉÄÃ¯É ¯ÉÊAVPÀ zËdð£ÀåªÉ¸V À PÀ®A.8gÀ ¯ÉÊAVPÀ C¥ÀgÁzÀU s ½À AzÀ ªÀÄPÀ̼À ¸ÀAgÀPÀëuÁ C¢ü¤AiÀĪÀÄ, 2012gÀ CrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £À ÀÄß J¸ÀVzÁÝgAÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¹gÀĪÀgÃÉ ?
3. AiÀiÁªÀ DzÉñÀ?
6. My findings on the above points are as under:-
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: As per the final orders for the following:
REASONS
7. Point No.1 and 2: As these points are inter-related, hence, I have taken up together for my consideration in order to avoid repetition of reasonings.
8. Perused the entire record, charge sheet, evidence produced both at oral and documentary and arguments canvassed from both the sides.
9. In order to prove the alleged offences against the accused the prosecution examined in all 7 witnesses as Pw.1 to Pw.7, got marked 6 documents as Ex.P1 to Ex.P6 and this 6 Spl.C.C.No.539/2017 Court perused the same. As per the prosecution case, Pw.1 is the complainant and the victim, Pw.2 is the hear say witness, Pw.3 is the circumstantial witness, Pw.4 and Pw.5 are the Panch witnesses, Pw.6 and Pw.7 are the police personnel and Investigation Officer. Hence, this Court shall proceed to see whether the available evidence of said witnesses is sufficient for establishing the alleged offences against the accused.
10. In order to establish the alleged offences against accused the prosecution is required to prove that on 02-10- 2017 at about 08.10 p.m., to 08.17 p.m., when the victim girl- Cw.1 had been to grocery shop for purchase at 1st 'A' Main, 8th 'A' Cross, opposite to Ganesha Temple, near Public Library, the accused dragged her and tried to kiss her, when she ran away to P.G., he followed her and near P.G., and tried to touch her and thereby the accused committed offences punishable under Section 354 of IPC and section 8 of POCSO Act. Hence, this Court shall proceed to see whether the prosecution has succeeded in establishing all the aforesaid ingredients of the alleged offences against the accused beyond all reasonable doubt.
7 Spl.C.C.No.539/2017
11. Before venturing into scan the available materials evidence on record, it is necessary to mention the very definition of offences under Section 354 of IPC and Section 8 of POCSO Act.
Section 354 of I.P.C defines that Assault or use of Criminal force to woman with intent to disrobe her modesty -Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty shall be punished with imprisonment of either description for a term which may extend two years or with fine or with both. Section 8 of POCSO Act defines that:
Punishment for sexual assault.-Whoever, commits sexual assault, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to five years, and shall also be liable to fine.
With these now left with the available material evidence to consider whether the facts and circumstances of the case and given evidence attracts the definitions of above said sections to believe alleged offences against accused has to be looked into.
At the same time it is just and proper to mention the admitted facts between prosecution and the accused as per prosecution witnesses' evidence.8 Spl.C.C.No.539/2017
12. Here in order to consider the alleged offences against accused, whether the prosecution establishes at the time of alleged incident, the victim girl was minor by producing corroborative, authenticated document has to be looked into. As per the case of the prosecution, at the time of alleged incident, the victim girl as per the charge sheet is aged about 16 years. In order to prove the said age of the victim girl the prosecution produces the evidence of victim girl as Pw.1.
13. In her evidence she has deposed that her native place is Nag Land, she was born on 04-06-2001, studied up to 9th standard and since from 2017 she is residing in Bengaluru in her sister's house at Jayamahal-Bengaluru. To substantiate the said stand she has produced Ex.P4-Identity card issued by the Government of Nag Land for civilians only in the name of Nag Land, wherein her date of birth is mentioned as 04-06- 2001, but the said I.D. card was issued on 03-02-2018 and it is valid up to 03-02-2019. Admittedly the alleged incident was taken place on 02-10-2017 in the evening. At the same time she has not produced any authenticated identity card to show as on the date of alleged incident she was having valid identity 9 Spl.C.C.No.539/2017 card. Moreover the authority who issued said I.D. card also not stepped into the witness box to believe the genuinty of existence of Ex.P4.
14. In the cross-examination the accused tested the veracity of evidence of this witness and also elicited that:
"£Á£ÀÄ £ÁUÁ¯ÁåAqï gÁdåzÀ nªÀiÁ¥ÀÅgï£À°è ºÀÄnÖ ¨É¼¢ É zÉÃÝ £É. £Á£ÀÄ nªÀiÁ¥ÀÅgï£À°è ±Á¯ÉUÉ ¸ÉÃjzÉ.Ý £À£Àß vÀAzÉ vÁ¬Ä £À£ßÀ £ÄÀ ß D Hj£À°è ±Á¯ÉUÉ ¸ÉÃj¹zÀÝgÀÄ. D ±Á¯ÉAiÀÄ ºÉ¸g À ÀÄ ¸ÉÃAmï eÁ£ï ±Á¯ÉAiÀiÁVzÉ. D Hj£À°è D ±Á¯ÉAiÀÄ°è £Á£ÀÄ 9£Éà vÀgU À w À ªÀg«É UÀÄÁ «zsÁå¨sÁå¸À ªÀiÁrzÉÃÝ £É. £Á£ÀÄ D ±Á¯ÉAiÀÄ£ÀÄß ©lÄÖ JµÀÄÖ ªÀµðÀ UÀ¼Á¬ÄvÉAzÀÄ ºÉüÀ®Ä £À£U À É UÉÆwÛgÀĪÀÅ¢®è. £Á£ÀÄ 9£Éà vÀgU À wÀ AiÀÄ£ÀÄß ªÀÄÄV¹ FUÉÎ 7-8 ªÀµÀðUÀ¼ÁVªÉ. £Á£ÀÄ 9£Éà vÀgU À wÀ «zsÁå¨sÁå¸À ªÀÄÄV¹ £ÀAvÀgÀ AiÀiÁªÀÅzÉà PÉ®¸ÀPÉÌ ºÉÆÃV®è ªÀÄ£ÉAiÀįÉÃè EzÉ.Ý nªÀiÁ¥ÀÅgï£À°è FUÀ®Æ ¸ÀºÀ £Á£ÀÄ N¢zÀAvÀºÀ ±Á¯É ¸ÉAmïeÁ£ï ±Á¯É EzÉ".
If the above said evidence of Pw.1 is taken into consideration, there is ample opportunity to the Investigation Officer to collect authenticated and valid document with regard to the date of birth of the victim girl from her school and also the study certificate and to produce the same in this case, but no such document collected and produced by the Investigation Officer for perusal. Even Ex.P4 also is not collected by the Investigation Officer, but the same was produced by the victim girl only and the said I.D. Card obtained by her subsequently 10 Spl.C.C.No.539/2017 after the incident. When such being the case, it is not safe to accept the genuinty of existence of Ex.P4 at the time of alleged incident to believe the date of birth of victim girl as deposed by her and she was minor at the time of the alleged incident.
15. On perusal of evidence of Pw.2-Rajesh, he has deposed that the complainant is the relative of his wife, she came from Nag land, his wife also belonged to Nag land. Since his wife was pregnant at that time to assist her the victim girl came to his house, she was in the PG and the said PG was run by his wife. During the month of August-2017, the victim girl came to his house, at that time her age was 17 years. Having deposed the same, in respect of the age of victim girl at that time of incident no such supporting document placed by him to believe the same.
16. The accused tested his veracity by eliciting some commission and omission and also suggested that he has not given statement before police stating the age of victim girl as 17 years at that time. Through the evidence of this witness also, no such corroborative evidence produced to believe at the time 11 Spl.C.C.No.539/2017 of alleged incident the victim girl was minor. Viewing from the available material evidence of Pw.1 and Pw.2 and also the evidence of Pw.7-the Investigation Officer that in the complaint as per Ex.P1, the complainant had not written her date of birth as 04-06-2001, this Court feels to observe that the prosecution fails to establish that at the time of alleged incident the victim girl was minor by producing corroborative and cogent documentary evidence beyond all reasonable doubt.
17. Now left with the available evidence in respect of delay in lodging the complaint. It is the evidence of Pw.1 that on 02-10-2017 in the evening she went to shop to purchase milk from the P.G., when she was near the shop the accused touched her chest and also told that he is going to marry her and kissed her before the public, immediately she pushed him and return to P.G., from another road, but he followed her up to P.G., she had also called the watchman of P.G. for her help and thereafter informed about the incident to her cousin-Lisa and she in turn informed the same to her husband over phone, her cousin's husband is Rajesh. Thereafter said Rajesh came near the P.G., and called the police, the police came there and 12 Spl.C.C.No.539/2017 searched for the boy who teased her and on the next day i.e., on 03-10-2017 she has lodged the complaint as per Ex.P1 and her signature is Ex.P1(a). Further she has given statement before police, the police also conducted mahazar as per Ex.P2 and her signature is Ex.P2(a). She has given statement before the Magistrate as per Ex.P3 and her signature is Ex.P3(a).
18. No doubt it is true as per the evidence of this witness in her chief examination on the date of alleged incident, Pw.2 informed to the police and police came to the spot and searched the said boy, if this evidence is taken into consideration, the police received information on 02-10-2017, but the complaint was lodged on 03-10-2017 at about 04.30 p.m., causing delay of 18-20 hours, but no such sufficient reasons given by the prosecution through the evidence of this witness about the reasons for causing delay in lodging the complaint. In the cross-examination the accused tested the veracity of evidence of this witness and denied about lodging of complaint on 03-10-2017 at about 04.30 p.m. Further she was elicited that:
13 Spl.C.C.No.539/2017
"WÀl£É £Àqz É À ¢£ÀzAÀ zÉà £Á£ÀÄ ¥ÉÇðøÀjUÉ zÀÆgÀÄ PÉÆnÖzÉÃÝ £É. £À£Àß CPÀÌ£À UÀAqÀ gÁeÉÃ±ï ¦fAiÀÄ §½ §AzÀ £ÀAvÀgÀ ¥ÉÇðøï oÁuÉUÉ ºÉÆÃVzÁÝgÉ DzÀgÉ JµÀÄÖ UÀAmÉUÉ ºÉÆÃVzÁÝgA É zÀÄ ºÉüÀ®Ä DUÀĪÀÅ¢®è. D gÁwæ £Á£ÀÄ ¥ÉÇðøï oÁuÉUÉ ºÉÆÃUÀ°®è ¥ÉǰøÀgÃÉ ¦fAiÀÄ §½ §A¢zÀg Ý ÀÄ. ¥ÉÇðøÀgÀÄ D gÁwæ ¦fAiÀÄ §½ §AzÁUÀ £À£ÀߣÄÀ ß «ZÁgÀuÉ ªÀiÁrgÀĪÀÅ¢®è. ZÁ.¸Á.3gÀªg À ÃÉ ¥ÉÆðøÀg£À ÀÄß ¦fAiÀħ½ PÀgÉ vÀA¢zÀg Ý ÀÄ. ¥ÉÇðøÀgÀÄ D gÁwæ £À£Àß eÉÆvÉ ªÀiÁvÀ£ÁrzÀgÀÄ. D gÁwæ PÀA¥ÉA è mïUÉ £À£Àß ¸À» vÉUzÉ ÀÄPÉÆAqÀgÁ JA§ÄzÀgÀ §UÉÎ ºÉüÀ®Ä £É£¦ À gÀĪÀÅ¢®è.".
19. Further she was elicited that:
"¥ÉÇðøÀgÀÄ D gÁwæ ¸ÀĪÀiÁgÀÄ ºÉÆvÀÄÛ ¦fAiÀÄ §½AiÉÄà EzÀg Ý ÄÀ JAzÀgÉ ¸Àj".
Further she was elicited that:
"D ¢£À ¥ÉÇðøÀgÀÄ gÁwæ 12.00 UÀAmɪg À «É UÀÄ EzÀÝgÀÄ JAzÀgÉ ¸ÁQë ¥ÉÇðøÀg£ À ÀÄß £Á£ÀÄ gÁwæ 10.00 UÀAmɪg À UÉ É £ÉÆÃrzÉ £ÀAvÀgzÀ À ¸ÀªÀÄAiÀÄzÀ §UÉÎ ºÉüÀ®Ä £À£U À É UÉÆwÛ®è JAzÀÄ £ÀÄr¢gÀÄvÁÛg.É D gÁwæ ZÁ.¸Á.3 gÀªg À ÀÄ ¥ÉÇðøÀgÀ eÉÆvÉAiÀįÉÃè EzÀg Ý ÀÄ JAzÀgÉ ¸Àj".
If the above said evidence is taken into consideration, after the alleged incident, immediately the incident was made known to the police, immediately they have also came near the P.G., and enquired as stated supra, but earlier to that the complaint was not registered. This shows without registering the complaint the police enquired the alleged incident.
Further she was elicited that:
"ªÀÄÁgÀ£É ¢£À ¨É¼UÀ ÉÎ 10.00 UÀAmÉ ¸ÀĪÀiÁjUÉ £Á£ÀÄ ¥ÉÇðøï oÁuÉUÉ ºÉÆÃVzÉÃÝ £É. ¤.¦.1 ¤£Àß PÉʧgÀtU ô A É iÀÄ°è®è JA§ ¥Àæ±ÉßUÉ ¸ÁQë £Á£ÀÄ ºÉýzÉ ZÁ.¸Á.3 gÀªg À ÀÄ §gÉzg À ÀÄ JAzÀÄ £ÀÄr¢gÀÄvÁÛg.É ¤.¦.1 £ÀÄß ¥ÉÇðøï oÁuÉAiÀÄ°è §gÉ¢gÀĪÀgÀÄ. »A¢£À gÁwæ £Á£ÀÄ PÉÆlÖAvÀºÀ zÀÆgÀÄ K£Á¬ÄvÉAzÀÄ ºÉüÀ®Ä £À£U À É UÉÆwÛ®.è ªÀiÁgÀ£É ¢£À £Á£ÀÄ 14 Spl.C.C.No.539/2017 ¥ÉÇðøï oÁuÉUÉ ¨É¼U À ÉÎ 10.00 UÀAmÉUÉ ºÉÆÃzÀ £ÀAvÀgÀ ¸ÀAeÉ ¸ÀĪÀiÁgÀÄ 5.00 UÀAmɪg À U É É EzÉ£ Ý A É zÀgÉ ¸Àj. ¤.¦.1 zÀÆjUÉ £Á£ÀÄ ¸À» ªÀiÁrzÉ DzÀgÀÉ JµÀÄÖ UÀAmÉUÉ ¸À» ªÀiÁrzÉ JA§ÄzÀgÀ §UÉÎ ¸ÀªÀÄAiÀĪÀ£ÄÀ ß ºÉüÀ®Ä £À£UÀ É DUÀĪÀÅ¢®è. ¦fAiÀÄ CPÀÌ¥ÀPÀÌzÀ°è ºÁUÀÆ £À£ßÀ CPÀÌ£À ªÀÄ£ÉAiÀÄ CPÀÌ¥ÀPÀÌzÀ°g è ÀĪÀAvÀºÀ CAUÀrUÀ¼À ªÀiÁ°ÃPÀgÀ ºÉ¸j À £À §UÉÎ £À£U À É w½¢®è".
If the above said evidence is taken into consideration there is a delay in lodging the complaint and it is not sufficient to believe the alleged offences against accused as per the case of the prosecution. Further the accused elicited some omissions which are not stated in the statement, but she has stated in her chief examination and the accused denied the same. Now left with the evidence of Pw.2.
20. By going through the evidence of Pw.2 he has deposed that he has received information from his wife to his phone at about 08.00 p.m., or 08.15 p.m., on 02-10-2017 in respect of alleged incident on the victim girl. He also went near P.G., at that time he saw the accused who was present showing his finger towards P.G., by that time he had informed the same to the police, immediately the police also came there, on seeing the police the accused ran away from that place. On enquiry with the complainant she was crying and told that when she 15 Spl.C.C.No.539/2017 went to shop to bring milk, at that time the accused came behind her, caught hold her, touched her chest and told that he is going to marry her, immediately she managed to escape from his hands and ran away towards P.G., from another road which was running behind the shop. She has also immediately informed the same to her sister, in turn her sister called him over phone and told about the incident. Immediately he came to the spot, enquired about the incident and also informed to the police. He has shown the CCTV footage and also told about the security by name Tatappa, the said Tatappa also told that the accused came inside the compound of P.G. and scolded him in Tamil language. Here also before lodging any complaint this witness informed about the incident to the police, the police in turn without registering the case proceeded to conduct further investigation and the same is in violation of section 154 of Cr.P.C. With these observation, now left with the cross- examination of this witness. Admittedly the information was given to him by his wife as per the case of prosecution, but his wife is not made as one of the prosecution witness and produced her evidence by corroborating the case of prosecution. Non- 16 Spl.C.C.No.539/2017 production of evidence of wife of this witness, it is absolutely fatal to the case of prosecution.
21. Pw.2 further tested by the accused in respect of distance between his residence and the P.G is about 3 KMs. The permanent residence of the victim girl was his house and she also used to go to P.G. often and often. When he reached the P.G., the time was 08.20 p.m., or 08.30 p.m., by that time the police had not come near P.G. He had informed to the police about the incident even prior to the reaching to P.G., at that time he has not stated anything about his identification, but simply stated about the incident. Here it is relevant to note that the complainant deposed about one unknown person teased her and also committed the alleged offence. Further he was also elicited that:
"£Á¤zÀÝ ¸À¼ Ü ¢ À AzÀ ¥Éǰøï oÁuÉAiÀÄÄ ¸ÀĪÀiÁgÀÄ 1.0 CxÀªÁ 1.50 QÃ«Ä CAvÀgz À ° À v è ÀÄ.Û ¦f EgÀĪÀ ºÀwgÛ zÀ À ¸À¼ Ü zÀ À°è ºÉÊUËæAqï Omï ¥ÉÇøïÖ ¥ÉÇðøï oÁuÉ EzÉ. £Á£ÀÄ ªÀ¸A À vÀ£UÀ gÀ zÀ ° À è ºÀÄnÖ ¨É¼z É z À ÀÄ,Ý FUÉÎ LzÀÄ ªÀµð À UÀ½AzÀ dAiÀĪÀĺÀ¯ï£À PÀqU É ¼À °À è NqÁrPÉÆArzÉÃÝ £É. ¦f EgÀĪÀ ¸À¼ Ü ¢ À AzÀ ¸ÀĪÀiÁgÀÄ CzÀðs Q.«Äà CAvÀgz À ° À è ºÉÊUËæAqï ¦J¸ï EzÉ. £Á£ÀÄ ¥ÉÇðøÀjUÉ ¥sÉÆ£ï ªÀiÁr «µÀAiÀÄ w½¹zÁUÀ PÉ®ªÀÅ ¥ÉÇðøÀgÀÄ ¦fAiÀÄ §½ §A¢zÀg Ý ÀÄ. ¥ÉÇðøÀgÄÀ ¦f §½ §gÀĪÀÅzÀPÉÌ ªÉÆzÀ¯ÃÉ £Á£ÀÄ ¦f §½ ºÉÆÃVzÉÝ DzÀgÉ £Á£ÀÄ ºÉÆÃzÀ JµÀÄÖ ¸ÀªÀÄAiÀÄPÉÌ ¦f §½ §AzÀgÀÄ JAzÀgÉ ¸ÀªÀÄAiÀÄzÀ §UÉÎ £É£¦ À ®è".
If the above said evidence is also taken into consideration, 17 Spl.C.C.No.539/2017 earlier to lodging of complaint, the police are having no knowledge of the incident, but no such case was registered at that time. Further he has deposed that when he came near P.G., the victim girl was not standing in front of P.G., but she was in her room, as such he has not contacted her at that time and even after coming of the police to the P.G, at that time also he has not talked with her. Further he has deposed that thereafter the police summoned the victim girl to living room and enquired about the incident. This piece of evidence also crystallizes that before lodging of complaint, the incident was not within the knowledge of the police and no such case was registered immediately.
22. Further he has also admitted that:
"¹¹ n« ¥sÉÆÃmÉÃeï£ÀÄß £ÉÆÃrzÀ £ÀAvÀgÀ CzÉà ¢£À £Á£ÀÄ ¥ÉÇðøÀjUÉ ¦üAiÀiÁðzÀ£ÀÄß PÉÆqÀ°®è. £Á£ÀÄ ¥ÉÆðøï oÁuÉUÉ CzÉà ¢£À gÁwæ 9.00 UÀAmÉUÉ ºÉÆÃVzÉ,Ý ¸ÀĪÀÄÁgÀÄ 20 ¤«ÄµÀU¼ À À PÁ® C°èz,ÉÝ D ¸ÀªÀÄAiÀÄzÀ°è ¥ÉÇðøÀgÀÄ oÁuÉAiÀįÉÃè EzÀg Ý ÀÄ".
If this piece of evidence is taken into consideration, it is quite clear the complaint is lodged through the victim girl is an after thought one. Further it is his evidence that on the next day at about 04.30 p.m., he went to the police station and 18 Spl.C.C.No.539/2017 lodged the complaint and at that time the victim girl also accompanied with him, after giving his statement the FIR was registered, whereas the case was registered on the basis of the complaint lodged by the victim girl, but not on the statement of this witness.
23. Further some omission also elicited through this witness. No doubt it is true he has denied the same, but in the cross-examination of Pw.7-Investigation Officer-Rajesh Batagarki, he has admitted that:
"¥Áæ¸Á.2 gÁeÉÃ±ï £À£Àß ªÀÄÄAzÉ ºÉýPÉ PÉÆqÀĪÁUÀ ¢£ÁAPÀB02- 10-2017gÀAzÀÄ gÁwæ 08.00 CxÀªÁ 08.15gÀ ¸ÀªÀÄAiÀÄzÀ°è £À£Àß ºÉAqÀw £À£U À É ¥sÉÆÃ£ï ªÀiÁr ¦üAiÀiÁð¢AiÀÄ UËgÀªP À ÉÌ zÀP s ÉÌ §gÀĪÀ jÃwAiÀÄ°è WÀl£É £Àq¢É zÉ JAzÀÄ ºÉý ¦.f.AiÀÄ §½ ºÉÆÃV £ÉÆÃr JAzÀÄ w½¹zÀ¼A É zÀÄ, £Á£ÀÄ ¦fAiÀÄ §½ ºÉÆÃzÀAvÀºÀ ¸ÀªÀÄAiÀÄzÀ°è F ¢£À £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ ¤AwgÀĪÀ DgÉÆæ ¦fAiÀÄ PÀqÉ ¨ÉlÄÖ ªÀiÁr vÉÆÃj¸ÀÄvÁÛ ¤AwzÀ£ Ý AÉ zÀÄ, D ªÉüÉUÁUÀ¯ÃÉ £Á£ÀÄ ¦AiÀiÁð¢Ai ªÉÄÃ¯É DzÀAvÀºÀ WÀl£É §UÉÎ ¥ÉǰøÀjUÉ w½¹zÉÞ D ªÉüÉUÁUÀ¯ÃÉ ¥ÉǰøÀgÀÄ C°èUÉ §AzÀgÀÄ, CªÀg£ À ÀÄß £ÉÆÃrzÀ PÀÆqÀ¯ÃÉ CgÉÆæAiÀÄÄ NqÀ®Ä ¥ÁægÀA©ü¹zÀ£A É zÀÄ, £Á£ÀÄ ¦fAiÀÄ §½ §AzÁUÀ ¦üAiÀiÁð¢AiÀÄ£ÀÄß «ZÁj¹zÉ D ¸ÀªÄÀ AiÀÄzÀ°è CªÀ¼ÀÄ C¼ÀÄwÛz¼ ÀÝ AÉ zÀÄ CPÉ £À£Àß §½ £Á£ÀÄ CAUÀrUÉ ºÁ®£ÀÄß vÀg® À Ä ºÉÆÃzÁUÀ DgÉÆæAiÀÄÄ »A¢¤AzÀ §AzÀÄ £À£ÀߣÀÄß »rzÀÄPÉÆAqÀÄ £À£Àß JzÉAiÀÄ ¨sÁUÀª£ À ÀÄß ªÀÄÄnÖ £À£U À É ªÀÄÄvÀÄÛ PÉÆlÄÖ £À£ÀߣÀÄß ªÀÄzÀĪÉAiÀiÁUÀÄvÉ£ Û ÉAzÀÄ ºÉýzÀ£A É zÀÄ, £ÀAvÀgÀ DvÀ¤AzÀ ©r¹PÉÆAqÀÄ CAUÀrAiÀÄ »A¨sÁUÀzÀ gÀ¸¬ ÉÛ ÄAzÀ NrPÉÆAqÀÄ §AzÀÄ ¦fAiÀÄ §½ §AzÀ¼A É zÀÄ £ÀAvÀgÀ CPÉ £À£Àß ºÉAqÀwUÉ ¥sÉÆÃ£ï ªÀiÁr w½¹zÉ£A É zÀÄ ºÉýzÀ¼A É zÀÄ £À£U À É ¥sÉÆÃ£ï ªÀiÁ»w §AzÀ PÀÆqÀ¯ÃÉ £Á£ÀÄ ¸À¼ Þ P À ÌÉ §AzÀÄ WÀl£É §UÉÎ «ZÁj¹zÉ, £ÀAvÀgÀ ¥ÉǰøÀjUÉ «µÀAiÀÄ w½¹zÉ, ¥ÉǰøÀjUÉ ¹¹n« ¥ÀÇmÉÃeï£ÀÄß vÉÆÃj¹zÉ£A É zÀÄ £ÀªÀÄä ¦fAiÀÄ°è PÁªÀ®ÄUÁgÀ££ À ÀÄß EnÖzɪ Ý A É zÀÄ D ¢£À EzÀA Ý vÀºÀ ªÀåQÛAiÀÄ ºÉ¸g À ÀÄ vÁvÀ¥Àà JA§ÄzÁVzÉAiÉÄAzÀÄ CzÀgÉ DvÀ£À ¸ÀA¥ÀÇtð ºÉ¸g À ÀÄ K£ÉAzÀÄ ºÉüÀ®Ä DUÀĪÀÅ¢®èªA É zÀÄ ¸Àzj À vÁvÀ¥£ Àà ÀÄ DgÉÆæAiÀÄÄ ¦fAiÀÄ PÁA¥ËAqï M¼ÀUq À É §AzÀÄ vÀ«Ä½£À°è ¨ÉÊzz À £ÀÝ ÀÄß £ÉÆÃrzÉ£ Ý A É zÀÄ £À£ßÀ ¸ÀªÄÀ PÀëªÀÄ ºÉýPÉ PÉÆnÖgÀĪÀÅ¢®è JAzÀgÉ ¸Àj".19 Spl.C.C.No.539/2017
If the above said admission is taken into consideration, it is very clearly about that there is a doubt in respect of commission of offence by the accused. If the available material evidence produced through Pw.2 is taken into consideration, there is doubt about commission of offence by the accused beyond all reasonable doubt. Admittedly near the place of alleged incident the Ganesha Temple, few shops and Public Library are situated, but the police have not recorded statement of the witnesses who were present at that place to believe the alleged offences against accused. When such being the case, there is a doubt of commission of offense by the accused.
24. Now left with the available evidence of Pw.3- Nagaraju @ Tatappa, the security of V-One P.G., and paid servant of Pw.2-Rajesh, in his chief examination he has deposed that the victim girl went to the shop to bring groceries, where as the evidence of the victim girl is that she went to the shop to bring milk and it was 08.00 p.m. When she was purchasing groceries, at that place some 3-4 persons eve-teased her and the accused was also one of such person. He has further deposed that after purchasing the groceries when the victim 20 Spl.C.C.No.539/2017 girl was returning towards P.G., at that time the accused caught hold her, kissed her and told that he is going to marry her, for that she was afraid and ran away towards the P.G., the accused also followed her towards the P.G. When he enquired with the victim girl told him as to what had happened, she told the above said fact and ran inside the P.G. At that time the accused was standing near B.P., he asked the accused as to why he came and also questioned about his act, for that the accused scolded him in Tamil language and went away. The victim girl called the owner over phone, the owner was Rajesh Sundaram, immediately the owner came near the P.G., enquired about the incident and on the next day the complaint was lodged. He has further deposed that after lodging of complaint the police summoned him to the station, he has told the incident, thereafter the accused was traced by the police, he has also identified him and in the CCTV footage also the photo of the accused is available and thereafter he has given statement and restatement before the police.
25. Here it is relevant to note, as per the evidence of victim girl after purchase of milk she return to P.G., at that time 21 Spl.C.C.No.539/2017 one boy touched her chest and told that he is going to marry her, kissed her before public. Except that she has also stated that the accused was very much present at that place. Pw.3 was also present and saw the incident. On the other hand the evidence of Pw.3 discloses that he was not very much present at the place of incident. This piece of evidence contradicts with each other. As per the evidence of Pw.1, she has informed about the incident to her sister-Lisa, in turn said Lisa informed to her husband, whereas the evidence of Pw.3 is that the victim girl informed about the incident to the owner of P.G.-Rajesh Sundaram and immediately he came near P.G., and also informed to the police. But the evidence of Pw.2 is that as soon as he received the information, immediately he informed the same to the police and rushed towards the P.G., by that time the police also came near the P.G. If this piece of evidence is taken into consideration, there is contradiction with each other. It is also very clear this witness being a paid servant of Pw.2, he has supported the case of prosecution in his evidence. When the Investigation Officer having ample opportunities of securing witnesses near by the incident spot, even the shop owner also 22 Spl.C.C.No.539/2017 not made as witness to prove the alleged offences against the accused beyond all reasonable doubt.
26. Further with regard to identification of the accused, the victim girl deposed she doesn't know the name of the person who committed the act on her and it is also her evidence that:
" ¢£ÁAPÀB 02.10.2017 gÀAzÀÄ £Á£ÀÄ ¦f¬ÄAzÀ ºÉÆgÀUÉ ºÁ®Ä vÀg® À Ä ºÉÆÃVzÉ.Ý DUÀ ¸ÀªÀÄAiÀÄ gÁwæ ªÉüÉAiÀiÁVvÀÄ.Û D ¸ÀªÀÄAiÀÄzÀ°è £Á£ÀÄ ºÉÆÃUÀÄwÛzÀÝ ¸À¼ Ü ªÀ ÀÅ PÀv¯ ÀÛ E É vÀÄ,Û ¸ÁQë ¸ÀévBÀ 8.00 UÀAmÉ AiÀiÁVvÉA Û zÀÄ ºÉýgÀÄvÁÛg.É ¦f¬ÄAzÀ ºÁ®Ä vÀg® À Ä ºÉÆÃUÀĪÀ CAUÀrAiÀÄÄ EzÀA Ý vÀºÀ ¸À¼ Þ À ºÀwg Û zÀ ¯À Éèà EvÀÄÛ ºÁUÀÆ PÁ®ßrUÉAiÀÄ°è ºÉÆÃzÀgÉ MAzÀÄ ¤«ÄµÀ »rAiÀÄÄwÛvÀÄ.Û £Á£ÀÄ ºÁ®Ä vÀg® À Ä ºÉÆÃzÀ CAUÀrAiÀÄ ªÀiÁ°ÃPÀ£À ºÉ¸g À ÀÄ ºÁUÀÆ CAUÀrAiÀÄ ºÉ¸g À ÀÄ ºÉüÀ®Ä £À£U À É DUÀĪÀÅ¢®è. £Á£ÀÄ D CAUÀrUÉ ºÉÆÃUÀĪÁUÀ JzÀÄgÀÄUÀqÉ ªÀÄÆgÀÄ d£À ºÀÄqÀÄUÀgÄÀ §AzÀgÄÀ . D ªÀÄÆgÀÄ d£À ºÀÄqÀÄUÀgÀÄ £À£Àß ªÀÄÄAzÉAiÉÄà §AzÀgÀÄ. D ªÀÄÆgÀÄ d£À ºÀÄqÀÄUÀgÀÄ §gÀÄwÛzÀÝ ¸À¼ Ü À CAUÀrAiÀÄ ºÀwg Û z À ¯ À ÃÉè EvÀÄ.Û D ªÀÄÆgÀÄ d£À ºÀÄqÀÄUÀg£ À ÀÄß £Á£ÀÄ D ¢£ÀªÃÉ ¥ÀæxÀªÀĨÁjUÉ £ÉÆÃrzÉÃÝ £É. D ºÀÄqÀÄUÀg£ À ÀÄß £Á£ÀÄ £ÉÆÃrzÁUÀ JµÀÄÖ ¸ÉPA É qïUÀ¼ÄÀ »r¬ÄvÉAzÀÄ ºÉüÀ®Ä DUÀĪÀÅ¢®è. £Á£ÀÄ D ºÀÄqÀÄUÀg£ À ÀÄß 5-10 ¸ÉPA É qïìUÀ¼ª À g À U É É £ÉÆÃrzÉ JA§ ¥Àæ±ÉßUÉ ¸ÁQë EgÀ§ºÀÄzÀÄ DzÀgÉ ¤RgÀªÁV ºÉüÀ®Ä DUÀĪÀÅ¢®è JAzÀÄ £ÀÄr¢gÀÄvÁÛg.É D ªÀÄÆgÀÄ d£Àg£ À ÀÄß £ÉÆÃr £Á£ÀÄ ºÉzj À ¦fAiÀÄ M¼ÀUÉ NrzÉ JAzÀgÉ ¸ÁQë D ªÀÄÆgÀÄ d£ÀgÀ ¥ÉÊQ M§â ºÀÄqÀÄUÀ £À£Àß JzÉAiÀÄ£ÀÄß ªÀÄÄnÖzÀ PÁgÀt £Á£ÀÄ ¦fAiÀÄ M¼ÀUÉ MrzÉ JAzÀÄ ºÉýgÀÄvÁÛg"É .
Further she has deposed that:
"D ºÀÄqÀÄUÀ £À£ÀߣÀÄß ªÀÄÄnÖzÀ £ÀAvÀgÀ £Á£ÀÄ CAUÀrUÉ ºÉÆÃV ºÁ®Ä vÉUz É ÀÄPÉÆAqÀÄ ¨ÉÃgÉ gÀ¸A ÉÛ iÀÄ°è ¦fUÉ §AzÀÄ©mÉÖ".
Again she has deposed that:
"ªÀiÁgÀ£É ¢£À £Á£ÀÄ ¨É¼UÀ ÉÎ 10.00 UÀAmÉUÉ oÁuÉUÉ ºÉÆÃzÀ £ÀAvÀgÀ ¸ÀAeÉ 5.00 UÀAmÉUÉ ¥ÉÇðøÀgÀÄ £À£U À É £À£ÀߣÀÄß ªÀÄÄnÖzÀAvÀºÀ ªÀåQÛ ¢°Ã¥À JAzÀÄ ºÉýzÀgÀÄ JAzÀgÉ ¸Àj. ¥ÉÇðøÀgÀÄ ¢°Ã¥À£À ºÉ¸g À ÄÀ ºÉÃÉ ½ £ÀAvÀgÀ £À£Àß ¨ÁªÀ ZÁ.¸Á.3 gÀªg À ÀÄ ¤.¦.1 zÀÆgÀ£ÀÄß §gÉzÄÀ PÉÆlÖgÀÄ JAzÀgÉ ¸Àj".23 Spl.C.C.No.539/2017
If the above said evidence is taken into consideration, at the time of alleged incident she has not seen the accused, only on the say of the police she came to know that the accused has committed the offence on her. When such being the case, question of seeing the accused by this witness and the Pw.3 at that time doesn't arises.
27. The accused cross-examined Pw.3 by eliciting some commission and omission and also denied the evidence given by this witness by denial suggestion. At the same time he has also admitted that:
"D ¢£À DgÉÆæAiÀÄ£ÀÄß £Á£ÀÄ £ÉÆÃrzÀÄÝ ©lÖgÉ D »A¢£À ¢£ÀU¼ À ° À è DvÀ££ À ÀÄß £Á£ÀÄ J°èAiÀÄÆ £ÉÆÃrgÀĪÀÅ¢®è ºÁUÀÆ CzÉà ¢£À ªÉÆlÖ ªÉÆzÀ® ¨ÁjUÉ DvÀ££ À ÀÄß £ÉÆÃrzÉÃÝ £É. £Á£ÀÄ £À£Àß ºÉýPÉAiÀÄ°è ¥Àæ²ßvÀ ºÀÄqÀÄUÀ£À ZÀºgÀ A É iÀÄ «ªÀguÀ A É iÀÄ£ÀÄß ºÉýgÀĪÀÅ¢®è JAzÀgÉÀ ¸Àj".
If the above said evidence is taken into consideration, there is a doubt of seeing the alleged incident by this witness. With regard to CCTV footage and about the accused, the evidence of Pw.7-the Investigation Officer is also very clear and he has also deposed that:
"¥Áæ¸Á.3-£ÁUÀgÁeï C°AiÀiÁ¸ï vÁvÀ¥Àà £À£Àß ¸ÀªÀÄPÀëªÀÄ ¦üAiÀiÁð¢ CAUÀrUÉ ¸ÁªÀiÁ£ÀÄ vÀg® À Ä ºÉÆÃVzÀ¼ Ý ÀÄ, DUÀ ¸ÀªÄÀ AiÀÄ 08.00 UÀAmÉAiÀiÁVvÉA Û zÀÄ, CPÉUÉ CPÉ ¸ÁªÀiÁ£ÀÄ vÉUz É ÀÄPÉƼÀÄîªÀ ¸À¼ Þ z À ° À è ªÀiÆgÀÄ-
£Á®ÄÌ d£ÀgÀÄ ZÀÄqÁ¬Ä¹zÀÄÝ CªÀgÀ ¥ÉÊQ F CgÉÆæ ¸ÀºÀ EzÀ£ Ý A É zÀÄ, £ÀAvÀgÀ D ºÀÄqÀÄV ¸ÁªÀiÁ£À£ÀÄß vÉUz É ÀÄPÉÆAqÀÄ E£ÉÆßAzÀÄ gÀ¸A ÛÉ iÀÄ°è 24 Spl.C.C.No.539/2017 ¦fAiÀÄ §½UÉ §AzÀ¼A É zÀÄ, ¦üAiÀiÁð¢AiÀÄ£ÀÄß CgÉÆæAiÀÄÄ »rzÀÄPÉÆAqÀÄ ªÀÄÄvÀÄÛ PÉÆqÀ®Ä ºÉÆÃV ¤£ÀߣÀÄß ®UÀߪÁUÀÄvÉÃÛ £ÉAzÀÄ ºÉý »rzÀÄ PÉÆAqÁUÀ CPÉ UÁ§j¬ÄAzÀ ©r¹PÉÆAqÀÄ ¦fAiÀÄ PÀqÉ Nr §AzÀ¼ÀÄ, CPÉAiÀÄ£ÀÄß »A¨Á°¹PÉÆAqÀÄ CgÉÆæAiÀÄÄ ¸ÀºÀ ¦fAiÀÄ PÀqÉ §AzÀ£A É zÀÄ, £Á£ÀÄ D ºÀÄqÀÄVAiÀÄ£ÀÄß £ÉÆÃr K£Á¬ÄvÉUA À zÀÄ PÉýzÁUÀ F «µÀAiÀĪÀ£ÀÄß ºÉý ¦fAiÀÄ M¼ÀUÉ Nr ºÉÆÃzÀ¼A É zÀÄ ºÉýPÉ PÉÆnÖgÀĪÀÅ¢®è. ¥Áæ¸Á.3, £À£Àß ¸ÀªÀÄPÀëªÀÄ DUÀ CgÉÆæ £À£ßÀ £ÄÀ ß vÀ«Ä¼ÀÄ£À°è ¨ÉÊzÀÄ C°èAzÀ ºÉÆgÀlÄ ºÉÆÃzÀ£A É §ÄzÁV ºÉýPÉ PÉÆnÖgÀĪÀÅ¢®è JAzÀgÉ ¸Àj".
If the above said evidence is taken into consideration, Pw.3 in his chief examination deposed whatever he has not stated before the Investigation Officer. At this stage this Court opines Pw.3 is an interested witness and also paid servant of Pw.2, hence it is not safe to accept his evidence to believe the alleged offences against accused.
28. Further Pw.7 admitted that:
"¦f ºÁ¸ÀÖ¯ï ªÀÄÄAzÉ MAzÀÄ ¹¹n« PÁåªÀÄgÁ EzÉ JAzÀgÉ ¸Àj. £À£Àß vÀ¤SÁ PÁ®zÀ°è ¸Àzj À ¹¹n« PÁåªÀÄgÁzÀ r«Cgï C£ÀÄß £Á£ÀÄ d¥ÀÅÛ ªÀiÁrPÉÆArgÀĪÀÅ¢®è".
If the above said evidence is taken into consideration, as per the evidence of Pw.3, presence of accused before the P.G. was recorded in the CCTV camera fixed to the P.G., but what impediment caused to the Investigation Officer in non-taking CCTV footage and its production before the Court is not explained by the prosecution, as such there is a doubt of 25 Spl.C.C.No.539/2017 commission of offence by the accused.
29. Now left with the evidence of Pw.4-Babaji, he has deposed that the police conducted mahazar as per Ex.P2 near P.G., and obtained his signature as per Ex.P2(b) on 03-10-2017 in respect of the alleged incident. Here as per the complainant and the evidence of complainant-the victim girl, the incident was taken place near the shop when she went to purchase the milk, but his evidence is that the police conducted mahazar and obtained his signature near P.G. On perusal of Ex.P2, it was conducted at 8th "A" Cross, In front of Ganapathi Temple, 1st 'A' main road, 10 feet road from left to right, Vasantha Nagar. Admittedly this witness is working as plumber and was doing plumbing work in P.G., and in the cross-examination he has admitted that Pw.2 himself called him over phone to the P.G. After he came near P.G., the police conducted mahazar and written Ex.P2 in the corridor of P.G, i.e., the basement of P.G. When such being the case, it is not safe to believe the evidence of this witness in respect of process of conducting mahazar as per Ex.P2.
26 Spl.C.C.No.539/2017
30. By going through the evidence of Pw.5-Pradeep Kumar.V., he has deposed that Ex.P2(c) is his signature, he has signed the same in High Ground Police Station about four months back when he went to near the station to park his car, at that time the said signature was obtained by the police. The prosecution treated this witness as hostile to the case of prosecution and suggested each and every word of Ex.P2, for that he has denied the same. Through the evidence of Pw.5, the prosecution fails to establish the process of conducting mahazar as per Ex.P2 beyond all reasonable doubt.
31. By going through the evidence of Pw.6- T.Govindaraju-H.C.6759, he has deposed that on 03-10-2017 he was entrusted to trace the accused, accordingly he was on Gastu and traced the accused at about 05.00 p.m., on 03-10- 2017 near vegetable vending shop of his mother, caught hold him, brought to the station, given report as per Ex.P5 and his signature is Ex.P5(a). He has also identified the accused before Court. In the cross-examination he has admitted the accused was old MOV of the station. If this piece of evidence is taken into consideration, there is a doubt of fixing the case against 27 Spl.C.C.No.539/2017 accused by the police, knowing fully well that the victim girl has not stated anything in her complaint about the accused and she has stated only unknown person and in her evidence as unknown boy. At this stage, this Court feels to observe that the evidence of this witness is a formal one.
32. By going through the evidence of Pw.7-Rajesh Batagurki-P.S.I., he has deposed that on 03-10-2017 at about 04.30 p.m., he has received complaint as per Ex.P1 and registered the case in Crime No.170/2017 for the offences punishable under Section 8 of POCSO Act, entered Shara and signed as per Ex.P1(b). He has prepared FIR as per Ex.P6 and his signature is Ex.P6(a). Here on perusal of Ex.P1, the complainant stated one boy aged around 20 years, except that she has not stated anything about the identification of the accused. When such being the case, it is not safe to accept that the accused was taken to custody at about 05.00 p.m., on that day and produced before SHO at about 05.15 p.m.
33. Pw.7 further deposed that he went to the spot at about 05.30 p.m., conducted mahazar as per Ex.P2 up to 06.00 28 Spl.C.C.No.539/2017 p.m., whereas the independent Panch witness not supported the process of conducting mahazar by this witness. He has recorded the voluntary statement of the accused, but unless and until supporting evidence produced, it is not safe to accept the contents of voluntary statement of Cw.2 and Cw.3 who are interested witnesses and no such independent witness evidence recorded, even though near by the alleged place of incident, Ganapathi Temple, grocery shop and public library are all situated, where there was availability of independent witnesses. He has produced the victim girl before the Magistrate on 01-01- 2018 and filed charge sheet against accused.
34. In the cross-examination the accused tested his veracity by denial suggestion, but nothing has been elicited favourable to the defense taken by him. In the cross- examination he has also admitted that:
"WÀl£É £Àq¬ É ÄvÉAzÀÄ ºÉüÀĪÀ ¸À¼ Þ À ¸ÁªÀðd¤PÀ gÀ¸A ÉÛ iÀiÁVzÀÄÝ CzÀgÀ ¥ÀPÀÌzÀ°è MAzÀÄ zÉêÀ¸ÁÜ£,À MAzÀÄ ¢£À¹ CAUÀr EzÀ.É ¢£À¹ CAUÀr ªÀÄvÀÄÛ zÉêÀ¸ÁÜ£À CPÀÌ-¥ÀPÀÌzÀ°z è É JAzÀgÉ ¸Àj. ¦f ºÁ¸ÀÖ¯ïUÀÆ ¢£À¹ CAUÀrUÀÆ £ÀqÀÄªÉ ¸ÀĪÀiÁgÀÄ 50 «ÄÃlgï CAvÀg« À zÉ. £Á£ÀÄ ¸À¼ Þ ,À PÉÌ ¨sÃÉ n PÉÆlÖ ¸ÀªÀÄAiÀÄzÀ°è ¢£À¹ CAUÀrAiÀÄ°èzÀÝ ªÀåQÛU¼ À £ À ÁßU° À ºÁUÀÆ zÉêÀ¸ÁÜ£zÀ ° À z è A ÀÝ vÀºÀ d£ÀjUÁUÀ° WÀl£É §UÉÎ «ZÁj¹gÀĪÀÅ¢®è.
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29 Spl.C.C.No.539/2017
When ample witnesses are available near by the incident spot, why Pw.2 called upon known persons as Panch witness, not explained and it creates doubt about the commission of offence by the accused. Further the accused elicited that:
"¢£ÁAPÀB03-10-2017gÀAzÀÄ ¦üAiÀiÁ¢ð ªÀÄvÀÄÛ DgÉÆæ C¥ÀjavÀgÀÄ JAzÀgÉ ¸ÁQë CªÀj§âgÀ ªÀÄÄR ¥ÀjZÀAiÀÄ«vÀÄÛ JAzÀÄ ºÉýgÀÄvÁÛg.É ¸ÁªÀðd¤PÀgÀÄ PÀÈvÀåªÉ¸V À zÀ ªÀåQÛAiÀÄ ºÉ¸g À ÀÄ ¢°Ã¥À JAzÀÄ ºÉýzÀ PÁgÀt ¢°Ã¥À JA§ ºÉ¸g À £À ÀÄß ¤.¦.1gÀ°è £ÀªÀÄÆzÀ£É ªÀiÁrzÉÃÝ £ÉAzÀÄ ºÉýgÀĪÀ¼ÀÄ JAzÀgÉ ¸Àj. ¤.¦.1 ªÀÄvÀÄÛ ¥Àæ.ªÀ.ªÀg¢ À AiÀÄ ¥ÀæPÁgÀ DgÉÆæ ªÀÄvÀÄÛ £ÉÆAzÀ ¨Á®Q C¥ÀjavÀgÀÄ JA§ÄzÁV PÀAqÀÄ §gÀÄvÀÛzÉ JAzÀgÉ ¸Àj. DgÉÆæAiÀÄ£ÀÄß UÀÄgÀÄw¸ÀĪÀ §UÉÎ UÀÄgÀÄvÀÄ PÀªÁAiÀÄvÀ£ÄÀ ß £Á£ÀÄ ªÀiÁr¹gÀĪÀÅ¢®è. UÀÄgÀÄvÀÄ PÀªÁAiÀÄvÀÄÛ ªÀiÁr¸À®Ä £À£U À ÁåªÀÅzÉà CqÀZu À É EgÀ°®è JAzÀgÉ ¸Àj".
If this piece of admission is taken into consideration, it also creates doubt about the commission of offence by the accused. In view of non-production of corroborative and cogent witnesses evidence, it is not safe to accept the evidence of this witness beyond all reasonable doubt.
35. The oral and documentary evidence placed on record by the prosecution is not sufficient to prove the alleged offences against accused beyond all reasonable doubt. The defense of the accused and the facts and circumstances of the case including materials on record discussed above probablise the defense of the accused rather than the case of the prosecution. 30 Spl.C.C.No.539/2017
36. In view of aforesaid reasons, I hold that the evidence of Pw.1 to Pw.7 and documentary evidence as per Ex.P1 to Ex.P6, placed on record in respect of alleged offences is insufficient to prove that on 02-10-2017 at about 08.10 p.m., to 08.17 p.m., when the victim girl-Cw.1had been to grocery shop for purchase at 1st 'A' Main, 8th 'A' Cross, opposite to Ganesha Temple, near Public Library, the accused dragged her and tried to kiss her, when she ran away to P.G., he followed her and near P.G., and tried to touch her, she was saved by the watchman and thereby committed offences punishable under section 354 of I.P.C., and section 8 of POCSO Act, 2012 beyond all reasonable doubt. Consequently I hold Point No.1 and 2 in the "Negative".
37. Point No.3:- For the above said reasons and discussions on Point No.1 and 2, I hold that the accused is entitled for an order of acquittal. Hence, in the final result, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C, the accused is hereby acquitted for the offences 31 Spl.C.C.No.539/2017 punishable under Section 354 of IPC and Section 8 of POCSO Act, 2012. His bail bond and surety bond stands cancelled.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open Court on this the 15th Day of June 2019.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION Pw.1 Victim girl Cw.1 24-01-2018 Pw.2 Rajesh Cw.3 24-01-2018 Pw.3 Nagaraju @ Tatappa Cw.2 28-02-2018 Pw.4 Babaji (Balaji) Cw.4 28-02-2018 Pw.5 Pradeep Kumar.V. Cw.5 06-04-2018 Pw.6 T.Govindaraju Cw.6 06-06-2018 Pw.7 Rajesh Batagarki Cw.4 05-05-2018 LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P 1 Complaint Pw.1 24-01-2018 Ex.P 1a Signature of Pw.1 Pw.1 24-01-2018 Ex.P 1b Signature of Pw.7 Pw.7 15-08-2018 Ex.P 2 Mahazar Pw.1 24-01-2018 Ex.P 2a Signature of Pw.1 Pw.1 24-01-2018 32 Spl.C.C.No.539/2017 Ex.P 2b Signature of Pw.4 Pw.4 28-02-2018 Ex.P 2c Signature of Pw.5 Pw.5 06-04-2018 Ex.P 2d Signature of Pw.7 Pw.7 15-06-2018 Ex.P 3 Statement of victim Pw.1 24-01-2018 Ex.P 3a, Signatures of Pw.1 Pw.1 24-01-2018 3b Ex.P 4 Identity card of victim Pw.1 24-01-2018 Ex.P 5 Report Pw.6 07-06-2018 Ex.P 5a Signature of Pw.6 Pw.6 07-06-2018 Ex.P 5b Signature of Pw.7 Pw.7 15-06-2018 Ex.P 6 FIR Pw.7 15-06-2018 Ex.P 6a Signature of Pw.7 Pw.7 15-06-2018 LIST OF MATERIAL OBJECTS MARKED ON BEHALF OF PROSECUTION NIL LIST OF WITNESSES EXAMINED, DOCUMENTS MARKED & MATERIAL OBJECTS MAKED ON BEHALF OF DEFENCE NIL L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE