Bangalore District Court
Unknown vs Gunashekar on 31 December, 2016
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 31st DAY OF DECEMBER 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 286/2015
COMPLAINANT :
The State of Karnataka by
Subramanyapura Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
Gunashekar,
S/o. Murugesh,
Aged about 25 years,
R/of C/o Murthy
Adjacent to Shanimahatma
Temple Road,
Bhuvaneshwarinagar,
Gubbalala Main Road,
Bangalore City.
[Reptd by Sri. A.Rangappa -
Advocate]
***
2 Spl.C.C.286/15
JUDGMENT
Subramanyapura Police, Bangalore City have charge sheeted the accused for offences punishable under Sections 354-A of I.P.C. under Section 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012.
2. The case of the prosecution, in brief, is as under :
CW-2 the prosecutrix is the child of CW-1 and CW-3. She was of 6 years only. She was going to the school in Hanumagiri extension. CW-1 and 3 engaged the van bearing registration No.KA-09-M-3941 to pickup the child from the school to the house, after dropping the other children she was to be dropped in the last stop. On30.3.2015, at about 3.30 p.m., after dropping other children to respective stops, on the way to last stop the accused with intent to commit sexual assault/harassment opened his pant zip and exhibited his private part to the victim girl and asked her to touch it. She refused to do so. Thereafter he dropped her in the last stop.
After she disclosed this incident before her mother, she
3 Spl.C.C.286/15 immediately informed her husband CW-1, thereafter CW-4 contacted the owner of the vehicle and asked him to bring the driver to the school, where public gathered had assaulted the accused. Thereafter, CW-1 and 4 took the accused to Subramanyapura Police Station and handed over the accused and lodged a complaint. Investigating Officer registered the case, got recorded the statement of CW-2 and 3 through CW-
13. Investigating Officer recorded the statement of the other prosecution witnesses, drew necessary mahazars, seized the vehicle. Accused was sent to hospital for medical examination. By completing investigation, he submitted charge sheet to the Court for the aforesaid offences.
3. After submitting charge sheet to this court cognizance was taken and registered in Special C.C. On hearing both sides the charge was framed for offences punishable under Sections 354-A of I.P.C. and under Section 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012. The same was read over to the accused. The accused pleaded 4 Spl.C.C.286/15 not guilty and claimed to be tried. Hence, posted for prosecution evidence.
4. On prosecution side got examined as many as 9 witnesses as P.W.1 to 9 out of 15 charge sheet witnesses and got marked the documents at Ex.P.1 to Ex.P.10. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments both sides. Perused and posted for Judgment.
6. At later stage, hearing both sides, the charge has been altered and framed charge for offences punishable under Sections 9(m) r/w Section 10 r/w Section 18 of POSCO Act and under Section 11 r/w 12 of Protection of Children from Sexual Offence Act, 2012 against accused. The same was 5 Spl.C.C.286/15 read over to the accused. He has pleaded not guilty and claimed to be tried. On both sides submitted no further evidence and no further arguments.
7. The points that arise for my consideration are as under:
1. Whether the prosecution has proved beyond reasonable doubt that accused had committed sexual abuse on CW-2 the child of CW-1 in Van bearing No.KA-09-M-3941 on 30.3.2015 in between 3.30 and 4.00 p.m on the way to last stop, by way of asking her to touch his private part, punishable under Section 354-A of I.P.C?
2. Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place accused had made an attempt to commit aggravated sexual harassment on CW-
2, punishable under Section 9(m) r/w Section 10 r/w 18 of Protection of 6 Spl.C.C.286/15 Children from Sexual Offence Act, 2012?
3. Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place accused had committed sexual harassment on CW-2, with sexual intention by exhibiting his private part to the victim girl, punishable under Section 11 r/w Section 12 r/w 18 of Protection of Children from Sexual Offence Act, 2012?
4. What order?
8. 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 affirmative
Point No.4 As per final orders for the
following
7 Spl.C.C.286/15
REASONS
9. Points No.1 to 3 :- These three points are taken together for common discussion to avoid repetition of facts as they are interconnected to each other.
10. The prosecution made serious allegations against the accused that he made an attempt to commit aggravated sexual assault, committed sexual harassment on PW-2, the prosecutrix aged about 6 years only, on 30.3.2015 between 3.30 and 4.00 p.m. before arriving last stop where she had to be dropped. There are 3 charges against the accused. One is under Section 354-A of I.P.C. Another is under Section 9(m) r/w Section 10 r/w Section 18 of Protection of Children from Sexual Offence Act, 2012. Thirdly, under Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012.
11. According to prosecution, PW-1 father of PW-2 prosecutrix used to drop her to the school in the morning, in the evening after the school hours she was coming by private 8 Spl.C.C.286/15 van belonging to PW-5 Gopal who appointed accused as a driver to that van. At about 3.30 p.m. her school was closed. About by 4.00 p.m. accused used to pick the school children in the van and after dropping other children, he used to drop PW-2 in the last stop. By taking this advantage, on 30.3.3015 after dropping other children in the respective stops and before reaching the last stop he stopped the van and un- zipped his pant, exhibited his penis to PW-2 and asked her to touch it. She refused to do so and said that she would tell her mother. Then, he dropped PW-2 in the respective last stop. After PW-2 had gone to the house she immediately disclosed the incident before her mother PW-3. PW-3 informed the same to her husband PW-1 who was outside at that time. On coming to know this fact he and his friend PW- 7 had gone to the school taking PW-2 and 3 and also asked PW-5 to bring the driver to the school. Publics gathered assaulted the accused, thereafter he was taken by PW-1 and PW-7 to the police station where PW-1 handed over the accused to police and also lodged a complaint as per Ex.P1 9 Spl.C.C.286/15 making the allegation against him as stated by his wife. On being registered the case arrested the accused by PW-9 S.K. Malathesh then P.I and immediately called PW-6 Kavitha, W.P.S.I for the purpose of recording the statement of victim girl. On the same day both of them had gone to the house of the victim and PW-6 recorded the statement of PW-2 prosecutrix as per Ex.P2 and also recorded the statement of PW-3 mother of prosecutrix as per Ex.P3. Accused was sent to hospital for treatment as he was assaulted by the public. Thereafter he was also sent to hospital for medical examination and PW-9 received the medical report of the accused as per Ex.P9. He had also recorded the voluntary statement at Ex.P8 relating to recovery of vehicle used for commission of offence. It was seized by PW-9 by drawing seizure mahazar in presence of panchas. Investigating Officer also recorded the statement of PW-5 owner of vehicle who has spoken that accused was the driver to that vehicle on the date of incident. This is the case of the prosecution.
10 Spl.C.C.286/15
12. As mentioned in supra there is one charge under provision of I.P.C and two charges under POSCO Act. Section 29 of the Act provides the presumption in favour of the prosecution. As per Section 29 of the Act when a person has been prosecuted for any one of the offences including Section 9 of the Act the Special Court shall presume that he has committed the same unless contrary is proved. The POSCO provisions apply in case of the child victim. In view of Section 2(1)(d) of POSCO Act "child" means any person who is under the age of 18 years. According to prosecution the victim girl is under the age of 18 years. Very particularly, she is below the age of 12 years as on the date of occurrence. Hence, the charge sheet was submitted for the offence punishable under Section 9(m) r/w 10 of POSCO Act. The second charge is under Section 9(m) r/w Section 10 r/w Section 18 of POSCO Act. Section 18 of the POSCO Act deals with attempt to commit any offences under POSCO Act. I have already discussed in supra about the allegation made by the prosecution against the accused. The main allegation made 11 Spl.C.C.286/15 against him is he had exhibited his private organ to the child victim having an intention to make her touch it, in-other words with sexual intention by unzipping his pant and showing his private organ, he asked her to touch his private organ. Ofcourse, the provision of I.P.C applies in case of woman of which denotes the word 'woman' means girl of any age. Whereas the other charges are concerned to POSCO Act which applies in case of the child victim only. Therefore, at the first instance the age of the prosecutrix shall have to be looked into.
13. In order to prove the age of PW-2 prosecutrix, the prosecution has got examined PW-1 father of prosecutrix, PW- 3 mother of prosecutrix and PW-2 prosecutrix and PW-9 S.K. Malathesh, P.I. Investigating officer in the present case. At the time of recording the evidence of these witnesses they have stated that the age of prosecutrix was 6 years as on the date of incident. PW-9 has collected the documentary testimony from the school in which PW-2 was studying. Ex.P10 is the study certificate of which contains the date of 12 Spl.C.C.286/15 birth of PW-2. Accordingly, her date of birth is 15.8.2008. The date of incident is 20.3.2015. This documentary testimony and also the oral testimony of PW-1 to 3 and 9 has gone unchallenged. Apart from that in view of Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007) age should be determined by matriculation or equivalent certificates or date of birth certificates from school first attended or birth certificate by Corporation/Municipal authority or Panchyat and only in the absence of such documents medical opinion can be sought for. On this point I have relied upon (2013) 14 SCC 637 (Mahadeo S/o Kerba Maske Vs. State of Maharashtra and another).
14. Ex.P10 is the certificate issued by the school authorities of which would speak that age of PW-2 is below 12 years as on the date of incident. There is no dispute on this aspect. It is not disputed on defence side. PW-2 was studying in first standard at that time. This fact also remains un-challenged. The prosecution has proved the age of PW-2 is below 18 years, as on the date of occurrence she was below 12 years.
13 Spl.C.C.286/15 Section 9(m) applies in case of the offence committed on the victim below 12 years.
15. The learned Public Prosecutor has argued that the presumption laid down under Section 29 of the POSCO Act is in favour of the prosecution, accordingly the Special Court shall presume that accused has committed the offence punishable under Section 9(m) r/w Section 10 r/w Section 18 of POSCO Act unless contrary is proved by the accused. There is nothing brought on record on accused side to rebut the case of the prosecution. Hence, the prosecution has proved the sexual assault committed by him on the victim girl as the presumption is in favour of the prosecution.
16. The learned counsel for the accused has argued that mother of the prosecutrix and the prosecutrix who are the material witnesses have not supported the prosecution case, hence the evidence of complainant cannot be taken into consideration. It is also further argued by him there are no documents seized by Investigating Officer to show that 14 Spl.C.C.286/15 accused was driver of the said vehicle and he is the driver by profession, no Driving Licence of accused has been seized by Investigating Officer and even whether the vehicle seized by Investigating Officer was used on that day to drop the victim child is not proved by the prosecution. Each vehicle shall have the female servant while picking and dropping the school children. There is no convincing evidence to believe the case of the prosecution. There is no eyewitness to the incident, the contradictions are found in the evidence of prosecution witnesses, chain of link is missing as the mother of the prosecutrix and the prosecutrix have not testified against the accused. The question of rebutting the presumption laid down under Section 29 of the Act does not arise as no offence is proved by the prosecution.
17. It is pertinent to note, ofcourse there is a presumption under Section 29 of the Act. When a person has been prosecuted for any one of the offences laid down therein the Special court shall presume that he has committed the offence unless contrary is proved. The second charge for offence 15 Spl.C.C.286/15 under Section 9 is one of the offences under Section 29 of the Act. However, the initial burden is on the prosecution to establish its case beyond reasonable doubt, then onus shifts over to accused to rebut the same. On his failure to rebut then he is found guilty of the offence. Hence, at the first instance, what is the evidence placed on prosecution side is to be looked into.
18. In order to prove its case prosecution has got examined as many as 9 witnesses. PW-1 Ramesh is father of PW-2 prosecutrix. PW-2 is the prosecutrix aged about 7 years then studying in first standard. PW-3 is the mother of the prosecutrix. PW-7 Jayaprakash is the friend of PW-1 and his child also was going to the same school by the same van. PW-5 Gopal is the owner of the vehicle in which PW-2 and son of PW-7 were being picked from the school. PW-4 Annnappa is the spot panch to mahazar at Ex.P4. PW-8 Venkatesh. B is one of the seizure panch to Ex.P5 with respect to seizure of the vehicle used for commission of offence. PW-6 Kavitha, WPSI recorded the statement of prosecutrix and mother of the 16 Spl.C.C.286/15 prosecutrix on the date of the incident itself. PW-9 S.K.Malatheesh, then P.I. is the Investigating Officer. All these witnesses are the material witnesses in the present case.
19. I have already discussed in supra about the case of the prosecution, what are the allegations made against the accused. There are in all 3 charges against the accused. First and second charge are almost one and the same. The sexual intention is one of the ingredients of the second charge under Section 9(m) r/w Section 10 of POSCO Act. The first and foremost ingredient of the first charge under Section 354-A is physical contact and advances involving unwelcome and explicit sexual overtures. Whereas to attract the offence under Section 7 dealing with sexual assault of POSCO Act, the physical contact shall be coupled the sexual intention. Section 7 is the definition clause of sexual assault. Section 9 deals with aggravated sexual assault. When the sexual assault falls under any one of the categories mentioned in Section 9 of the Act then it attracts Section 9 of the Act.
17 Spl.C.C.286/15
20. As per the prosecution accused had taken PW-2, the prosecutrix from the school on 13.3.2015, in the afternoon and after dropping other school children in their respective stops he had to drop PW-2 in the last stop, before reaching the last stop he had made an attempt to commit aggravated sexual assault and committed sexual harassment by way of showing his private organ after unzipping his pant. Ofcourse PW-2 the prosecutrix is the material witness. She has to speak out on this aspect. Even she has to say who was the driver of the vehicle in which she was picked up on that day. Merely because PW-2 has not stated anything before the court against the accused and she has not identified him, the whole case of the prosecution cannot be thrown away at the threshold itself. Even PW-3 mother of the prosecutrix has also not testified against the accused. As per the arguments addressed by the learned counsel for the accused when these two material witnesses have not supported, the identity of the accused is not proved and also commission of sexual assault 18 Spl.C.C.286/15 or sexual harassment does not arise at all and even that is also not established by the prosecution.
21. With this background, if I go through the oral testimony of PW-1, the complainant, PW-2 the prosecutrix, PW-3 the mother of prosecutrix, PW-7 Jayaprakash, PW-5 Gopal and PW-6 Kavitha.G.M who recorded the statement of PW-2 and 3, and also very particularly the conduct of PW-2 and 3 in the open court during the course of recording their evidence clearly establishes that PW-2 and 3 are won over by the other side. Except PW-2 and 3 other witnesses mentioned in supra have fully supported the prosecution. So far as concerned to the identity of the accused there is no doubt on this aspect.
22. At the first instance, if I takeup the identity of the driver of the vehicle used on the date of the incident to pickup the school children, there is no doubt about the identity of the accused. Because PW-5 Gopal the owner of the said Omni bearing No. KA-09-M-3941 has stated before the court on oath 19 Spl.C.C.286/15 that accused was an employee under him, he was working as a driver to that vehicle, even on the date of the incident he had gone to pick up the school children in that vehicle and even after the incident, he was called over phone by PW-7 Jayaprakash friend of the complainant to bring the driver of the vehicle, accordingly he brought the accused to the school where he was assaulted by the public on coming to know the incident. Assault on the accused by the public in the school premises itself is admitted by the accused during the course of his 313 statement. There is nothing found on record that there is an enmity between PW-5 Gopal and accused. Why should he lie and why should he want to fix him unnecessarily in the cases like this nature. PW-5 is the material witness with respect to identity of the driver of the vehicle. Though it is denied on defence side that he was not the driver of the said vehicle on that day, there is nothing found on record to disbelieve the oral testimony of PW-5 who appointed the accused as driver and as usual on the date of the incident also accused had taken the said vehicle at Ex.P6. Accused was the 20 Spl.C.C.286/15 regular driver of the said vehicle. Merely because prosecutrix had not identified who was the driver of the said vehicle on that day does not take away the case of the prosecution and the presumption cannot be drawn that other person was the driver of the vehicle at Ex.P6 on the date of the incident. Above all it is an admitted fact that accused had been assaulted by the public in the school premises and thereafter he was handed over the police by the complainant and his friend PW-7, and PW-1 lodged a complaint on the same day.
23. On going through the oral evidence of PW-2, ofcoruse she has stated in her chief-examination that she does not know Gunashekar, and even the accused behind the curtain in the open court. At the same time other part of her chief examination is taken into consideration indicates that she hesitated to speak out the aforesaid statement. At the time of the evidence her father was allowed to be with her, he was just beside the witness box while recording the evidence of PW-2. When the learned Public Prosecutor put the said question and it was put to the child by the court, first she said 21 Spl.C.C.286/15 'yes' after few seconds she resiled by saying 'no'. The relevant portion is " DgÉÆæAiÀÄ PÀqÉUÉ PÉÊ vÉÆÃj¹ ¥ÉǰøÀjUÉ DvÀ£À «gÀÄzÀÞ K£ÁzÀgÀÆ ºÉý¢gÁ JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀgÀÄ ªÉÆzÀ®Ä 'ºËzÀÄ' JAzÀÄ ºÉý PÉ®ªÀÅ ¸ÉPÉAqïUÀ¼À £ÀAvÀgÀ 'E¯Áè' JAzÀÄ ºÉýgÀÄvÁÛgÉ." This portion of her evidence would show that she was tutored not to say against the accused. In other words won over by the otherside.
24. In the backdrop of aforesaid aspect oral testimony of PW-3 mother of the prosecutrix is also taken into consideration, there also finds something fishy in her behaviour while giving statement before the court. Her chief- examination is as under:-
" ¥Áæ¸Á 1 gÀªÉÄÃ±ï £À£Àß ¥Àw. ¥Áæ¸Á 2 £ÉÆAzÀ ¨Á®Q £À£Àß ªÀÄUÀ¼ÀÄ. £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ EgÀĪÀ DgÉÆæ EªÀgÀÄ UÉÆvÁÛ JAzÀÄ PÉýzÀ ¥Àæ±ÉßUÉ ¸ÁQëzÁgÀgÀÄ GvÀÛgÀªÀ£ÀÄß ºÉüÀ®Ä ¸ÀªÀÄAiÀÄ vÉUz É ÀÄPÉÆArzÀÄÝ, ¥ÀÅ£ÀB CzÉà ¥Àæ±ÉßAiÀÄ£ÀÄß 22 Spl.C.C.286/15 PÉüÀ¯ÁV UÉÆwÛ®è JAzÀÄ ºÉýgÀÄvÁÛgÉ. ¥ÉǰøÀgÀÄ £À£ÀߣÀÄß «ZÁgÀuÉ ªÀiÁr ºÉýPÉ ¥ÀqÉzÀÄPÉÆAr®è."
When the third question "whether she knows the accused"
was put to her, then she took sometime, when again the same question was put to her then she said 'No'. This also clearly shows she was in dilemma to speak the truth and she was reluctant to speak against the accused. That itself indicates that PW-3 was also won over by otherside. Testimony of Pw-
1 and 3 during the course of their evidence before the court would suggest that their version in their chief-examination is found to be unreliable. Under the circumstance, straightaway the case of the prosecution cannot be thrown away. Ofcourse both are subjected to cross-examination by the learned Public Prosecutor and they denied the suggestions. But, there is other strong piece of evidence and circumstantial evidence to connect the accused with alleged offence.
25. Firstly, identity of the accused is very material, then the commission of the offence and the nature of the offence. I 23 Spl.C.C.286/15 have already discussed about the oral testimony of PW-5 Gopal, the owner of the vehicle who is the proper person to speak about aspect of who was the driver of the said vehicle and who picked the school children on the date of the incident. His evidence is also supported by PW-6 Kavitha G.M., then WPSI who was called by PW-9 P.I who was Investigating Officer for recording of statement of prosecutrix and mother of the prosecutrix. On the same day evening of the incident PW-6 along with PW-9 I.O had been to the house of prosecutrix and recorded her statement and also her mother's statement as per Ex.P2 and 3 respectively. Therefore, though PW-2 and 3 have not stated about the driver of the vehicle, there is nothing to disbelieve the version of either PW-5 or PW-6. PW-5 is proper person to speak about who was the driver of the said vehicle. Because the said vehicle was used for commission of the offence belonging to PW-5. He had appointed accused as the driver. As per his evidence he had two vehicles only. One was being used by him, for another vehicle accused was appointed as driver to 24 Spl.C.C.286/15 pick up the school children. On the date of the incident also as usual the accused taking the said vehicle at Ex.P6 had gone to the school to pickup the children. It is also further stated by him immediately after the incident when he was called by PW-7 Jayaprakash friend of the complainant to bring the driver of the said vehicle, he brought the accused to the school. Bringing of the accused by PW-5 to the school after the incident is an admitted fact and even assault by the public gathered there to the accused in the school premises is an admitted fact. Handing over the accused by PW-1 and 7 to the police station is also an admitted fact. This is a strong piece of circumstantial evidence with respect to identification of driver of the vehicle.
26. There is also oral testimony of PW-7 Jayaprakash. After PW-3 mother of the prosecutrix contacted her husband PW-1 and reported the incident, PW-7 who was with PW-1 at that time, immediately contacted PW-5 and asked him to bring the driver of the vehicle to the school premises. Accordingly PW-5 brought the accused to the school premises where PW-2 25 Spl.C.C.286/15 identified the driver. Under the circumstance, there is no doubt about the identity of the driver of the vehicle, he is none else rather than the accused, who had gone to the school taking the said vehicle to pickup the school children including the prosecutrix. PW-7 is not a stranger. His son was also going by the same vehicle to the school. Therefore, he is the probable witness and his version cannot be brushed asile. Ofcourse PW-2 has not supported prosecution case, but other materials brought on record establish that accused was driver of the said vehicle.
27. PW-1 Ramesh the complainant father of the prosecutrix has also spoken as PW-7 as stated. The oral testimony of PW-7 is corroborated by PW-1. When that is so, it becomes very clear that PW-2 and 3 were subsequently won over by the otherside and they have not supported the prosecution case. PW-1 was examined at the earliest point of time. He has fully supported the case of the prosecution. Ofcourse, PW-7 has been subsequently examined, but he has also corroborated the prosecution case. At the same time, 26 Spl.C.C.286/15 there is also no difference or enmity found between PW-1 and the accused or between PW-7 and accused or PW-5 and accused. Why should they unnecessarily indulge accused. Therefore, though PW-2 and 3 have not stated that accused by name Gunashekar was the driver of the said vehicle on that day does not defeat the case of the prosecution. It is pertinent to note Pw-3 is not the witness who had seen the vehicle on that day. But, she is the first person who learnt from PW-2 that Gunashekar was the driver of the said vehicle and he is the usual driver to the said vehicle. Ofcourse Pw-2 is the material witness. But, I have already discussed about her evidence how and why her evidence is found unreliable. PW-3 has immediately informed her husband PW-1 about the accused and his illegal act. That is stated by PW-1 in his oral evidence. Therefore, there is no other evidence brought on record to discard the oral testimony of PW-1, 5, 6 and also PW-7
28. On defence side also took another contention that the vehicle at Ex.P6 is not the vehicle used to pick up the school 27 Spl.C.C.286/15 children on that day. Except the bare defence there is nothing on record to support their contention. As already discussed in supra, the oral testimony of PW-5 is very clear about the use of the said vehicle at Ex.P6 by the accused to pick up the school children from the school.
29. There is also another witness, who has spoken about seizure of vehicle at Ex.P6 on 31.3.2015 i.e., on next day of the incident. PW-8 is one of the seizure panchas to Ex.P5. According to prosecution accused had given voluntary statement as per Ex.P.8 (the relevant portion), he had shown the place of vehicle to PW-9 Investigating Officer and the seizure panchas, PW-9 seized the vehicle at Ex.P6 by drawing seizure mahazar as per Ex.P5. The same is also stated by PW-9 and also supported by PW-8. Ex.P8 is with respect to discovery of fact. It is the accused who gave information as to place of parking of vehicle at Ex.P6 which was used on the date of incident to pickup school children. It attracts Section 27 of Indian Evidence Act. According to the oral testimony of PW-5, the owner of the vehicle accused was the driver of the 28 Spl.C.C.286/15 said vehicle on that day, after dropping the school children he parked the vehicle nearby his house Bhuvaneshwarinagar. Accused had shown the vehicle parked in front of one Murthy in whose house he was then residing. It is in Bhuvaneshwarinagar. Accused had shown the place and the said vehicle was seized by Investigating Officer. Therefore, the oral testimony of PW-8 and 9 also establishes the seizure of vehicle used on the date of the incident by the accused. The finding of vehicle in the place shown by the accused establishes that he was the driver of the said vehicle on the date of the incident. Thus, the prosecution has succeeded in establishing the identity of the driver of the vehicle and he is none else rather than the accused, no other person. Merely because PW-3 has not supported the prosecution other materials found on record cannot be thrown in wind. There is abundant and strong piece of evidence to prove the identity of the driver of the vehicle. The prosecution succeeded in proving its case, i.e. identity of the driver.
29 Spl.C.C.286/15
30. Now, the next question arises whether the accused had committed the alleged offences. There are three charges levelled against him. First charge is under Section 354-A of I.P.C. The second charge is under Section 9(m) r/w Section 10 r/w Section 18 of POSCO Act. Thirdly, under Section 11 r/w Section 12 of POSCO Act. Again on all these aspects PW- 2 the prosecutrix is the material witness to speak. I have already discussed at length in supra. PW-2 and her mother PW-3 have not supported the prosecution as they were won over by the otherside. That is emanated from their evidence also. However, PW-6 W.P.S.I who had recorded statement of PW-2 immediately after the incident, has clearly stated about the statement given by PW-2 and PW-3 narrating about the illegal act of the accused. She has stated whatever Pw-2 and 3 stated before her same has been noted down in Ex.P2 and 3 respectively. Apart from that, her oral testimony is also supported by PW-1, the complainant who is none other than the father of the prosecutrix. He is the first witness examined on prosecution side. PW-3, PW-7 are the hearsay witnesses.
30 Spl.C.C.286/15 According to prosecution whatever PW-2 disclosed before PW- 3 in turn PW-3 reported the same to PW-1, PW-7 who was with him at that time learnt the same from PW-1. Therefore, the say of PW-1 and 7 is also material like that of PW-3. Though PW3 has not supported, PW-1 and 7 have corroborated the case of the prosecution with respect to the commission of the sexual abuse by the accused. PW-1 in his very chief-examination has stated about the report from PW-
3. The relevant portion of his chief-examination is as under:
" DgÉÆæAiÀÄÄ ¸ÀzÀj ªÁºÀ£ÀzÀ ZÁ®PÀ£ÁVzÀÝ ¸ÀÆÌ¯ï ªÁå£ï£À°è ªÁ¥À¸ï £ÀªÀÄä ªÀÄUÀ¼ÀÄ ªÀÄ£ÉUÉ §gÀĪÁUÀ PÉÆÃmïð£À ªÀÄÄA¢gÀĪÀ DgÉÆæ ¥ÁåAmï£À f¥ï ©aÑ vÀ£Àß UÀÄ¥ÁÛAUÀªÀ£ÀÄß £À£Àß ªÀÄUÀ½UÉ vÉÆÃj¹ CzÀ£ÀÄß ªÀÄÄlÄÖ CAvÀ £ÉÆA¢vÀ½UÉ ºÉüÀÄwÛzÀÝ£ÀAvÉ. £À£Àß ªÀÄUÀ¼ÀÄ ªÀÄ£ÉUÉ §AzÀ£ÀAvÀgÀ CAzÉà £À£Àß ºÉAqÀw JzÀÄjUÉ F «µÀAiÀĪÀ£ÀÄß ºÉýzÀݼÀÄ. £À£Àß ºÉAqÀw £À£ÀUÉ ¥sÉÆÃ£ï ªÀiÁr©lÄÖ F vÀgÀ ¸ÀÆÌ¯ï ªÁå£À ZÁ®PÀ ªÀÄUÀ½UÉ F vÀgÀºÀ vÀ£Àß UÀÄ¥ÁÛAUÀ vÉÆÃj¹ ªÀÄÄlÄÖ CAvÀ ºÉüÀÄwÛzÀÝ£ÀÄ CAvÀ w½¹zÀ¼ÀÄ."
31 Spl.C.C.286/15 PW-1 has reiterated the case of the prosecution. He has stated in his chief-examination whatever his wife has informed him about the incident. On going through his cross- examination nothing is found to disbelieve his statement in the chief-examination. On defence side took the contention for statistical purpose at the instance of school authorities a false case has been registered against the accused. He has denied the same. Though PW-3 wife of PW-1 has not supported the prosecution does not make its case doubtful as PW-1 one who learnt from PW-3 about the incident has narrated about the incident in clear terms. There is nothing brought on record to disbelieve his version.
31. PW-7 is another material witness who speaks about the incident taken place on 30.3.2015. PW-7 knows the accused as his son was going to the school by the same van. Therefore, he has acquaintance with accused. According to prosecution immediately after he learnt from PW-1 he contacted PW-5 to bring the driver to the school premises. In his chief-examination he has stated that accused has 32 Spl.C.C.286/15 committed sexual harassment on PW-2 by unzipping his pant and did something. In page 2 also he has further stated that he learnt that accused had shown his private part to the victim and asked her to touch it. He is subjected to cross- examination on defence side, but no material is found in his cross-examination to discard his statement in his chief- examination.
32. PW-5 Gopal the owner of the vehicle is another hearsay witness. After he brought the accused to the school he learnt in detail about the incident, i.e., accused misbehaved with the victim girl. Under the circumstance, the non support by PW-2 and 3 does not make the prosecution case suspicious.
33. PW-4 Annappa is spot pancha to Ex.P4 drawn in the place of incident. Ofcoruse, he has not supported the prosecution case. But, non support by PW-4 does not takeaway the whole case of the prosecution when there is other evidence of which convinces the court and also the 33 Spl.C.C.286/15 evidence of PW-2 and 3 are found to be trustworthy. PW-9 is the Investigating Officer. He has reiterated the case of the prosecution. On receiving the complaint from PW-1 he registered the case, he arrested the accused handed over by PW-1 and 7. He has also spoken that PW-6 was taken by him to the house of the victim girl for recording of statement of PW-2 and her mother, and accordingly after recording their statement PW-6 handed over Ex.P2 and 3. Thus the prosecution has put forth satisfactory, believable and convincing evidence to show misbehave of the accused with prosecutrix.
34. Now, lastly, the question arises whether misbehave of the accused falls under the aforesaid 3 charges. Whether prosecution has proved all the 3 charges framed against him. The first charge is under Section 354-A of I.P.C. The second charge is under Section 9(m) r/w Section 10 r/w Section 18 of POSCO Act. According to allegation he made an attempt to commit aggravated sexual assault on the prosecutrix. The prosecution has made allegation that before dropping her in 34 Spl.C.C.286/15 her respective stop, with sexual intent he stopped the vehicle and unzipped his pant, exhibited his private organ and asked prosecutrix to touch it, she refused, she started crying, then in fear he dropped in her respective stop. In order to prove the offence under POSCO provisions the prosecution shall have to establish first the ingredients of the Section 7 of the PSCO Act. There are 3 categories of sexual abuse as mentioned in POSCO Act. They are Penetrative sexual assault (Section
3), sexual assault (Section 7) and sexual harassment (Section 11).
35. It is better to go through the ingredients of Section 7 of the POSCO Act. Section 7 reads as under:
" Sexual Assault- Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault."
35 Spl.C.C.286/15 In view of aforesaid section the first and foremost ingredient is sexual intention. Secondly touching the private parts i.e., vagina, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration.
36. On going through the aforesaid section 7, there are two crucial points to be looked into here. Whether he had sexual intention and another is whether there was involvement of physical contact without penetration either by way of touching the private parts or make the child touch private parts or does any other act as noted in Section 7 of the Act.
37. According to prosecution as discussed in supra he exhibited his private organ with sexual intention and asked her to touch, but when she refused and started crying he left there itself. The intention of the accused could be gathered from his act and also the circumstances prevailed therein.
36 Spl.C.C.286/15 The exhibition of his private organ by unzipping his pant and by showing his private organ asked prosecutrix to touch it itself establishes the sexual intention of the accused. But, when the prosecutrix started crying, he dropped to continue his act because of apprehension that he had, itself shows that he did not continue. In other words he did not make an attempt to complete the process of sexual assault as in Section 7. Mere having sexual intention does not attract Section 7, but there must be physical contact involved without penetration. There is absence of physical contact. Mere expressing his intention to make the child touch the private organ does not complete the commission of offence under Section 7 of POSCO Act.
38. Ofcourse charge under Section 9(m) r/w Section 18 of POSCO Act has been framed. But, even when the accused did not force her to touch his private organ or did not attempt to make the child touch his private organ, it does not attract Section 9 r/w Section 18 of POSCO Act. Offence under Section 18 is not the substantive offence. Therefore, the 37 Spl.C.C.286/15 ingredients of Section 7 shall have to be established at the first instance. In order to fall within the ambit of Section 9(m) the child must be under the age of 12 years. As already stated in supra the prosecutrix is below 12 years, whereas the prosecution has failed to establish the ingredients of Section 7. The mere establishing the sexual intention accused cannot be held guilty under Section 9 r/w 18 of POSCO Act.
39. Even so far as concerned to Section 354-A of I.P.C also the prosecution has to prove the physical contact and advances involving unwelcome and explicit sexual overtures. As already mentioned in supra, there are no materials to show the physical contact and advances as laid down under Section 354-A of I.P.C. Here also the prosecution fails to establish the charge under Section 354-A of I.P.C.
40. The last charge is under Section 11 r/w Section 12 of POSCO Act. Section 11 provides sexual harassment. Section 11(i) of the Act reads as under:
38 Spl.C.C.286/15 "Sexual harassment - A person is said to commit sexual harassment upon a child when such person with sexual intent,-
(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child."
In order to fall within the purview of Section 11 the prosecution has to make out three essential ingredients i.e.,
(i) sexual intention
(ii) exhibits any object or part of body
(iii) shall be seen by the child.
41. As discussed at length in supra, accused had the sexual intention. That is established from his own conduct.
39 Spl.C.C.286/15 The exhibition of his private organ and it was seen by the child should be established by the prosecution. There is a specific allegation against the accused that he had opened his pant zip and exhibited his private organ and he asked her to touch his private organ, then she started crying. In other words it was seen by the child and she started crying in fear then he stopped his act, he did not continue, he dropped the child in her respective stop. The movement he exhibited his private organ by unzipping his pant and it was seen by the child, the offence under Section 11 of POSCO Act is complete. It amounts sexual harassment. Though, it does not attract the ingredients of Section 7 of the Act and even the ingredients of Section 354-A of I.P.C, it falls within purview of Section 11 of the Act.
42. In order to attract first and second charge involvement of physical contact is very material. Ofcourse, prosecution has failed to establish the charges under Section 354-A of I.P.C and under Section 9(m) r/w 10 r/w 18 of POSCO Act, but placed sufficient and believable evidence to establish the 40 Spl.C.C.286/15 offence under Section 11 r/w 12 of POSCO Act. The sexual intention of the accused can very well be gathered from his own conduct. Merely because prosecutrix and mother of the prosecutrix has not supported accused cannot be held not guilty for the aforesaid charge when there is abundant, trustworthy and convincing evidence on the part of the prosecution. I have already discussed about the evidence of other material witnesses i.e. PW-1, 5, 6, 7 and 9. PW-1 had lodged a complaint disclosing the whole incident as reported by his wife. The statement of PW-1 carries the same weight like that of the 161 statement of PW-3. It is also corroborated by PW-6 who recorded the statement of prosecutrix and her mother immediately after the incident and she has stated on oath before the court about the statement given by PW-2 and 3 as per Ex.P2 and P3 respectively. The oral testimony of PW- 1 and 6 also corroborates the evidence of PW-7 who is another material witness. There is also corroborative evidence of PW-5 owner of the vehicle and also PW-9 the Investigating Officer. There is no missing of link to complete the chain. I 41 Spl.C.C.286/15 do not find any force in the arguments addressed by the learned counsel for the accused. I have already discussed in supra at the beginning that there is no enmity between the accused and any one of the aforesaid witnesses in respect of any aspect. Under these circumstances, the oral testimony of PW-1, 5, 6, 7 and 9 and also the recovery of the vehicle establishes the offence committed by the accused under Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012. Though the presumption under Section 29 of the Act is not available for offence under Section 11 r/w 12 of the Act, the prosecution has succeeded in proving its case beyond reasonable doubt. The accused is found guilty for offence under Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012. Hence, I hold points No.1 and 2 in the Negative and point No.3 in the Affirmative.
43. POINT NO.4: In view of my above discussion and findings, I proceed to pass the following:
42 Spl.C.C.286/15 ORDER Accused is found guilty of the offence punishable under Section punishable under Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012.
To hear regarding sentence.
(Dictated to the Stenographer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 31st day of December, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
43 Spl.C.C.286/15 ORDER ON SENTENCE Heard both the sides regarding the sentence. The learned counsel for the accused and also the accused have submitted that he has wife and children who are depending on his earnings. The sentence may kindly be reduced.
2. The learned Public Prosecutor has submitted that the maximum punishment may kindly be imposed as the offence like this nature are being hiked in the society now a days, and it should be curbed.
3. Accused was aged about 25 years as on the date of incident on 30.03.2015, now he is in 26 years.
4. According to me it is not a fit case even to extend the benefit laid down under Section 4 P.O Act. He is found guilty for the aforesaid offences. In recent years crime against school going children are on the rise. The crimes are affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against mandate 44 Spl.C.C.286/15 of the legislature not only is an injustice to the victim of the crime in particular and the society as a whole in general but also at times encourages a criminal.
5. Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012 shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
6. On accused side assigned some reasons to reduce the sentence that he has wife and children they are fully depending on him. These reasons could not be relevant or germane for taking a lenient view. Such reasons could be available in each and every case. The court is equally bound to see the atrocity and heinous crime and ill-effects of which on the victim and her family members. While it is true that justice should be tempered with mercy, undue mercy is harmful to the cause of Justice. The ends of justice would be met by imposing the minimum sentence under Section 11 r/w 45 Spl.C.C.286/15 Section 12 of Protection of Children from Sexual Offence Act, 2012. Accordingly, I proceed to pass the following:
ORDER Acting under Section 235(2) of Cr.P.C. accused is hereby convicted for offences punishable under Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012 and sentenced to undergo Simple Imprisonment of three years and shall also pay fine of Rs.2,000/, in case of default to pay the fine amount, he shall undergo Simple Imprisonment of another eight months, of which shall run consecutively.
The J.C. period of accused from 31.3.2015 to 2.7.2015 (totally 3 months 2 days), be setoff as laid down under Section 428 of Cr.P.C.
Award of compensation as in Section 7(2) of POSCO Act, to PW-2 the prosecutrix is hereby recommended to District Legal Services Authority, Bangalore Urban, to be computed. Submit the copy of charge sheet and last day order sheet to D.L.S.A. 46 Spl.C.C.286/15 Maruthi Van bearing registration No.KA-
09-M-3941 seized under PF No.64/2015 is hereby ordered to be given to custody of PW-5 Gopal owner of the vehicle after appeal period is over.
Free copy of this Judgment to be supplied to the accused.
(Dictated to the Stenographer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 31st day of December, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
PW.1 Ramesh
PW.2 Prosecutrix
PW.3 Radhika
PW.4 Annappa
PW.5 Gopal
PW.6 Kavitha G.M
PW.7 Jayaprakash
PW.8 B. Venkatesh
PW.9 S.K. Malathish
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION
Ex.P1 Complaint
47 Spl.C.C.286/15
Ex.P 1(a) Signature of PW-1
Ex.P 2 Statement of PW-2
Ex.P 2(a) Signature of PW-2
Ex.P 3 Statement of PW-3
Ex.P3(a) Signature of PW-6
Ex.P4 Mahazar
Ex.P4(a) Signature of PW-4
Ex.P.4(b) Signature of PW-9
Ex.P5 Seizure mahazar
Ex.P5(a) Signature of CW-6
Ex.P(b) Signature of PW-9
Ex.P6 Photo of the maruthi van
Ex.P7 F.I.R.
Ex.P7(a) Signature of PW-9
Ex.P8 Portion of accused statement
Ex.P9 Medical report of accused
Ex.P10 Study certificate
Ex.P10(a) Signature of PW-9
LIST OF MATERIAL OBJECTS MARKED
- NIL -
LIST OF DOCUMENTS MARKED ON BEHALF OF
DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED,
AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR)
LIII Addl.City Civil & Sessions Judge,
Bangalore.
48 Spl.C.C.286/15
31.12.2016
Accused present.
Judgment pronounced in the open
court, operative portion of which
reads as under:-
ORDER
Accused is found guilty of the
offence punishable under Section
11 r/w Section 12 of Protection of
Children from Sexual Offence Act,
2012.
To hear regarding sentence.
(SHUBHA GOWDAR)
LIII Addl.City Civil & Sessions Judge,
Bangalore.
49 Spl.C.C.286/15