Bangalore District Court
Unknown vs Mosin Khan on 7 November, 2019
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS SPECIAL JUDGE,
BENGALURU
DATED THIS THE 7th DAY OF NOVEMBER, 2019
-: PRESENT :-
S.H.PUSHPANJALI DEVI, B.A. LL.B.,
LIII Addl. City Civil & Sessions Special Judge,
Bengaluru.
SPECIAL C.C.No. 385/2014
COMPLAINANT :
The State of Karnataka
By Bharathi Nagara Police
Station, Bengaluru.
[Rep. by Public Prosecutor]
/ VERSUS /
ACCUSED:
Mosin Khan
S/o. Ajmal Khan,
Aged about 21 years,
R/at. No.188, Makhan
Compound, Near Police
line Masjid, Bharathi Nagara,
Bengaluru.
[Rep. by Mr.G.K. - Advocate]
2
Spl.C C.385/2014
TABULATION OF EVENTS
1. Date of Commission : 16/05/2014
Of Offence
2. Date of Report :
Of Offence 21/5/2014
3. Date of arrest of :
Accused 21/5/2014
4. Date of release on Bail
Accused : 24/7/2014
5 Period undergone in
Judicial Custody by : 2 months 3 days
Accused
6 Name of the complainant : Smt. Yasmin
7. Date of Commencement :
of recording evidence 14/08/2019
8. Date of Closing of :
21/08/2019
Evidence
9. Charges framed : Sections 366, 376, 114 IPC
and Sections 3 r/w 4 of
POCSO Act, 2012.
10. Opinion of the Judge : As per final Order
(S.H.PUSHPANJALI DEVI)
LIII Addl.City Civil & Sessions Special Judge,
Bangalore.
3
Spl.C C.385/2014
JUDGMENT
This Charge Sheet is filed by the Police Inspector of Bharathi nagar Police Station, Bengaluru City against the Accused for the offences punishable under Sections 366, 376 of IPC and Section 4 of POCSO Act, 2012.
2. The brief facts of the case of the Prosecution are that on 16/5/2014 at about 2 PM, the Accused has kidnapped the Vitim with an intention to marry her and took her to Cubbon park and committed Rape and Penetrative Sexual Assault on her.
3. Subsequently, the complainant gave the complaint on 21/5/2014 and case registered against the Accused in Crime No. 165/2014 for the offence punishable under Sections 363 IPC. The Accused was arrested on 4 Spl.C C.385/2014 22/5/2014 and remanded to judicial custody. Thereafter he was represented through the counsel and released on bail under Section 167 (2)Cr.P.C. on 24/7/2014. Subsequently on 12/8/2014 the Original Complaint, FIR and other documents transferred to CCH-51. Thereafter the case has been assigned to this Court for final disposal.
4. Afterwards the I.O. has conducted investigation and filed charge sheet against the Accused for the offences punishable under Sections 366, 376 of IPC and Section 4 of POCSO Act, 2012. This Court has taken cognizance of the said offences and heard, arguments of both learned Public prosecutor for the State and the learned Counsel for the Accused. The prima-facie materials produced to proceed against the Accused, therefore, charges framed under Sections 366, 376 of IPC and Section 3 R/w Section 4 of POCSO Act, 2012 5 Spl.C C.385/2014 the same is read over and explained to the Accused, they are not pleaded guilty and claims to be tried.
5. The prosecution has examined 8 witnesses out of 17 witnesses as PWs 1 to 8. The documents are marked as Ex.P-1 to 12, P-1(a)(b)(c), 2(a), 5(a)(b)(c), 6(a)(b), 10(a). The CW's 7,16 and 17 are remained absent in spite of issuance of BW. Therefore, the prayer of learned Public Prosecutor to reissue the same has been rejected and the evidence of prosecution taken has closed.
6. Subsequently, the incriminating circumstances in the evidence of the prosecution witnesses read over and explained to the accused. He has denied the evidence and not chosen to lead any defence evidence on his behalf.
6
Spl.C C.385/2014
7. Heard, the arguments of learned Public Prosecutor for the State and the learned Counsel for the Accused on merits.
8. The points for my consideration are :
1. Whether the Prosecution proves that the Accused with an intention to marry the Victim kidnapped her, taken to Cubbon park and committed Rape and Penetrative Sexual Assault punishable under Sections 366, 376 IPC and Section 3 r/w 4 of POCSO Act, 2012?
2 What Order?
9. My findings on the above points are as under:-
Point No.1 : In the Negative
Point No.2 : As per final order
for the following
REASONS
10. Point No.1 : The allegations made against the
Accused in respect of Kidnap, Rape and Penetrative 7 Spl.C C.385/2014 Sexual Assault on Victim. In proof of the said allegations the prosecution has produced the evidence through the Victim, her parents and others. The important point is except the Medical Officer, other witnesses are turned hostile.
11. The Complainant Yasmin is examined as PW-1. She has identified the complaint marked as Ex.P-1 and her signature as Ex.P-1(a). The Mahazar is identified under Ex.P-2 and her signature marked as Ex.P-2(a). She has denied the statement given against the Accused and shown ignorance about contents of Ex.P-1 and 2. Therefore treated hostile and cross-examined. In the cross-examined she has denied her statement given as per Ex.P-3 stating that the Accused has kidnapped her daughter on promise to marry her. Further denied the Statement given under Ex.P-4 with respect to Accused had forcibly had Sexual Intercourse with her daughter in the Cubbon Park. She has not supported the prosecution and denied the contents of Ex.P-1 to 4. 8
Spl.C C.385/2014
12. The Victim is examined as Pw-2. She is aged about 21 years and identified her signatures in the Mahazar, Ex.P-5 and Medical Report Ex.P-6 are marked as Ex.P-5(a) and 6(). She also turned hostile and deposed against Statements given as per Ex.P-7 with regard to Accused after promising her to marry kidnapped and committed Rape on her. She has also denied Further Statement given as per Ex.P-8 with regard to the same incident.
13. It is important to point out that the Victim has admitted that the Accused has married her subsequently and now she is having two children. Therefore, She has deposed contrary to the contents of Ex. P-5 to 8.
14. The witness for Spot Mahazar Sabina is examined as Pw-3. She has identified her signature in Ex.P-2 9 Spl.C C.385/2014 marked as Ex.P-2(b). Another witness Yashma Begam is examined has PW-4 . Her signature in Ex. P-2 is marked as Ex.P-2(c). Both of them turned hostile and shown ignorance about the contents of the Mahazar.
15. The witness Sulthana is examined as Pw-5. She has identified her signature in Ex.P-5 marked as Ex. P-5(b). Another witness Sania is examined has PW-6 . Her signature in Ex. P-5 is marked as Ex.P5(c). Both of them turned hostile and shown ignorance about the contents of the Mahazar.
16. The independent witness Seema is examined as PW-7. She being the neighbour of Pws 1 to 6 has admitted that Accused is husband of the Victim. She has denied her Statement given against the Accused as per Ex.P-9 And turned hostile.
17. The Medical Officer Dr. B.M.Nagaraju is examined as PW-8. He has examined both the Accused and the 10 Spl.C C.385/2014 Victim. The Medical Reports given as per Ex.P-10 and P-6, bears his signatures are marked as Ex.P-10(a) and 6(b) respectively.
18. The prosecution has not produced supporting evidence in proof of the Kidnap, Rape and Penetrative Sexual Assault committed by the Accused on the minor Victim on 16/5/2014. The Victim, Complainant and Mahazar witnesses turned hostile and their evidence is contrary to the contents of the documents produced before the Court. Therefore, in absence of the corroboration in proof of the allegations made against the Accused I come to conclusion that prosecution has failed to prove that the Accused with an intention to marry the Victim kidnapped her, taken to Cubbon park and committed Rape and Penetrative Sexual Assault punishable under Sections 366, 376 IPC and Section 3 r/w 4 of POCSO Act, 2012. Hence, I answer Point No.1 in Negative.
11
Spl.C C.385/2014
19. Point No.2: In view of my above discussion, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. Accused Mosin Khan S/o. Ajmath khan is hereby acquitted for offences under Sections 366, 376 of IPC and Sections 3 r/w 4 of POCSO Act, 2012.
The bail bonds executed by the Accused and surety under Section 437 (A) Cr.P.C. shall be in force till the completion of appeal period.
(Dictated to the Judgement writer, transcript and computerized by her, corrected, signed and then pronounced by me in the open Court today on 7th day of November, 2019.) (S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.12
Spl.C C.385/2014 ANNEXURE
1) List of witnesses examined for the Prosecution PW.1 Yasmin PW.2 Victim PW.3 Shabina PW.4 Reshma Begum PW.5 Sultana PW.6 Sania PW.7 Seema PW.8 Dr.B.M.Nagaraja PW.9 Jayaram PW.10 Sahana PW.11 Dr. Raksha M PW.12 Seetharam
2) List of documents marked for the Prosecution Ex.P1 Complaint Ex.P1(a) Signature of PW-1 Ex.P1(b) Signature of PW-3 Ex.P1(c) Signature of PW-4 Ex.P2 Spot Mahazar 13 Spl.C C.385/2014 Signature of PW-1 Ex.P2(a) Ex.P2(b) Signature of PW-3 Ex.P2(c) Signature of PW-4 Ex.P3 Statement of PW-1 Ex.P4 Further Statement Ex.P5 Spot Mahazar Ex.P5(a) Signature of Victim Ex.P5(b) Signature of PW-5 Ex.P5(c) Signature of PW-6 Ex.P6 Medical Report of Victim Ex.P-6(a) Signature of witness Ex.P-6(b) Signature of PW-8 Ex.P7 Statement of PW-2 Ex.P8 Further Statement Ex.P9 Statement Ex.P10 Report Ex.P-10(a) Signature of PW-10 Ex.P-11 Request for Certified copy of Transfer Certificate Ex.P12 Certified copy of Transfer Certificate
3) List of Material Objects marked for the Prosecution Nil 14 Spl.C C.385/2014
4) List of witnesses examined for the Accused Nil
5) List of documents marked for the Accused Nil
6) List of Material Objects marked for the Accused Nil (S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.
*** 15 Spl.C C.385/2014 Judgment pronounced in the open court, (vide separate Judgment ) ORDER Acting under Section 235(1) of Cr.P.C. Accused Mosin Khan S/o. Ajmath khan is hereby acquitted for offences under Sections 366, 376 of IPC and Sections 3 r/w 4 of POCSO Act, 2012.
The bail bonds executed by the Accused and surety under Section 437 (A) Cr.P.C. shall be in force till the completion of appeal period.
(S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.