Bangalore District Court
State By Peenya Police vs Nos.1 & 2 A1:Ananth on 21 January, 2017
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH-55)
Dated this the 20th day of January 2017.
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
SPL.C.C.NO.142/2015
COMPLAINANT State by Peenya Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED NOS.1 & 2 A1:Ananth,
Son of Mudalappa,
Aged 25 years,
Kuntappa Building,
Near Chamundeshwari Temple,
ReddiKatte, Mysore Lamps Layout,
Nagasandra Anche,
Bangalore-73.
A2: Nagaraju,
Son of Thippelingappa,
Aged 32 years,
Residing at No.82, Church Road,
ReddiKatte, Near Muneshwara
Temple, ReddiKatte,
Mysore Lamps Layout,
Nagasandra Anche,
Bangalore-73.
[Accused No.1 By Advocate
Sri.H.Jagadeesha and
Accused No.2: By Advocate
Sri.S.Shankarachar]
2 Spl CC No.142/2015
1. Date of commission of offence 22.01.2015
2. Date of report of occurrence of 22.01.2015
the offence
3. Date of arrest of accused Nos.1 24.01.2015
and 2
4. Date of release of accused No.1 31.03.2015
and accused No.2 [bail]
5. Period undergone in custody by 2 Months and 7 days
the accused Nos. 1 and 2
6. Again accused No.1 is in judicial 17.2.2016
custody under body warrant
7. Date of commencement of 18.8.2015
evidence
8. Date of closing of evidence 15.11.2016
9. Name of the complainant Ramesh
10. Offences complained of against Secs. 448, 354, 506 and
509 r/w Sec.34 of IPC and
accused
under Sec.12 of POCSO Act,
2012
11. Opinion of the Judge Accused No. 1 is found
guilty of the offences
punishable under Secs.354,
448, 506 and 509 of IPC and
under Sec.12 of POCSO Act,
2012.
In so far as Accused No.2
is concerned, he [accused No.2]
is acquitted of the offences
3 Spl CC No.142/2015
punishable under Secs.354,
448, 506 and 509 of IPC and
under Sec.12 of POCSO Act,
2012.
The accused No.1 shall
undergo simple imprisonment
for a period of One Year each
for the offences punishable
under Secs.354, 448, 506 and
509 of IPC.
Further, accused No.1
shall undergo Rigorous
Imprisonment for a period of
2 years and he shall also pay
fine of Rs.10,000/-. In default
of payment of fine amount,
accused No.1 shall undergo
Simple Imprisonment for
6 months.
JUDGMENT
Police Inspector, Peenya Police Station, Bangalore, has submitted charge sheet against the accused persons in Crime No.107/2015 for the offences punishable Under Secs. 448, 354, 506 and 509 r/w Sec.34 of IPC and under Sec.12 of POCSO Act, 2012.
2. The prosecution case briefly stated that:
The complainant Sri.Ramesh, father of the victim girl lodged the complaint as per Ex.P5 alleging that, the accused No.1 herein used to follow the complainant's daughter/victim girl whenever 4 Spl CC No.142/2015 she used to go to school and used to ask her to talk with him, accused No.2 joined accused No.1 and used to threaten the victim girl to talk with accused No.1, that, on 18.1.2015 at about 2.45 A.M., early in the morning accused No.1 trespassed into the house of the victim girl and knocked the window of the room of the victim girl and when the complainant and his wife came out of the house, accused No.1 fled away.
3. On the basis of the complaint lodged by the complainant, the complainant police registered a case in Cr.No.107/2015 against accused Nos. 1 and 2 for the offences punishable under Secs. 448, 504, 506 r/w Sec.34 of IPC and under Sec.11 of POCSO Act, 2012 and took up investigation. The Statement of the victim girl was recorded under Sec.164 of Cr.P.C before the Learned Magistrate, spot mahazar conducted, statement of the witnesses were recorded, the accused Nos. 1 and 2 were arrested on 24.1.2015 and after completion of the investigation formalities, charge-sheet has been filed against the accused persons for the offences punishable under Secs.448, 354, 506 and 509 r/w Sec.34 of IPC and under Sec.12 of POCSO Act, 2012 .
4. Accused No.1 is in judicial custody under body warrant and accused No.2 is on bail. After appearance of the accused, the copies of the prosecution papers [charge-sheet] was given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.5 Spl CC No.142/2015
5. After hearing the learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in-
office has framed the Charge on 9.6.2015 for the offences punishable under Secs. 354, 448, 506 and 509 r/w Sec.34 of IPC and under Sec.12 of POCSO Act, 2012 and read over to the accused in the language known to them. The accused pleaded not guilty and claimed trial.
6. The prosecution in order to bring home the guilt of the accused has examined in all 10 witnesses as PW1 to PW10 out of 13 witnesses as shown in the charge-sheet and one Additional witness is examined as PW11 and got marked 9 documents as per Exs.P1 to P9 and no material objects are marked on behalf of the prosecution.
7. At this stage it is necessary to mention that, though in the charge-sheet, there are 13 witnesses cited, the prosecution examined only 10 witnesses and one Additional Witness is examined as PW11. CW7, CW10 and CW11 are not examined by the prosecution. CW7-Witness to the spot mahazar, CW10-Assistant Kandaya Officer and CW11-Learned Magistrate who recorded the statement of the victim girl under Sec.164 of Cr.P.C are not examined by the prosecution. CW7 given up as repetition. Learned Public Prosecutor prayed to issue summons to CWs-10 and 11. The prayer of the learned Public Prosecutor was rejected as sufficient opportunity granted and the documents issued by CW10 and the Statement recorded by CW11 are already 6 Spl CC No.142/2015 marked. Hence, CWs-10 and 11 were dropped, vide order dated: 20.4.2016
8. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C is recorded. The accused Nos. 1 and 2 have denied the incriminating evidence found in the evidence of prosecution witnesses and their defence is that of total denial. Further accused No.1 has admitted that, his sister and brother-in-law were residing in the 1st floor of the building belonging to Ramesh-complainant. Accused No.1 has got marked one document as Ex.D1 in support of his defense.
9. Heard the learned Public Prosecutor and the learned counsels for the accused. Perused the records.
10. After hearing the arguments of learned Public Prosecutor and the learned defence counsel and as per the Charge leveled against this accused, following Points do arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that accused No.1 along with accused No. 2 with a common intention to outrage the modesty of CW2-victim girl used to follow her in the bike of accused No.1 when she was going to school and thereby committed an offence punishable under Sec.354 r/w Sec.34 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that on 18.1.2015 at about 2.45 A.M., accused No.1 trespassed into the house 7 Spl CC No.142/2015 of the victim girl and knocked the doors of the window of the room where the victim girl was sleeping with an intention to commit an offence or to insult or annoy the victim girl and her father and thereby committed an offence punishable under Sec.448 of IPC?
3. Whether the prosecution further proves beyond reasonable doubt that the accused No.1 along with accused No.2 threatened the victim girl by saying that, they would cause something wrong to her father, thus committed criminal intimidation thereby committed an offence punishable under Sec.506 of IPC?
4. Whether the prosecution further proves beyond reasonable doubt that accused Nos.1 and 2 tried to outrage the modesty of the victim girl by making some sound or gestures with an intention that the same shall be heard by the victim girl and accused No.2 supported the accused No.1, thereby committed an offence punishable under Sec.509 r/w Sec. 34 of IPC?
5. Whether the prosecution further proves beyond reasonable doubt that accused No.1 with sexual intent prevented the victim girl from going somewhere else, thereby committed an offence punishable under Sec.12 of POCSO Act, 2012?
6. What Order?
11. My findings on the above points are as under:
Point No.1: In the AFFIRMATIVE against
accused No.1 and in the NEGATIVE against
accused No.2
8 Spl CC No.142/2015
Point No.2: In the AFFIRMATIVE against
accused No.1
Point No.3: In the AFFIRMATIVE against accused No.1 and in the NEGATIVE against accused No.2 Point No.4: In the AFFIRMATIVE against accused No.1 and in the NEGATIVE against accused No.2 Point No.5: In the AFFIRMATIVE against accused No.1 Point No.6: As per the final order, for the following:
REASONS
12. POINT NOS.1 TO 5:- Consideration of these Five Points are based on the same facts and evidence and therefore, to avoid repetition, these Five points are taken together for discussion
13. According to prosecution accused No.1 herein used to follow the complainant's daughter/victim girl whenever she used to go to school and used to ask her to talk with him, accused No.2 joined accused No.1 and used to threaten the victim girl to talk with accused No.1, and accordingly that, on 18.1.2015 at about 2.45 A.M., early in the morning accused No.1 trespassed into the house of the victim girl and knocked the window of the room of the victim girl and when the complainant and his wife came out of the house, accused No.1 fled away. Hence, the accused Nos.1 and 2 have committed the offences as per the charge leveled against them.
9 Spl CC No.142/201514. The burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution has relied upon the evidence of PWs-1 to 11. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Krishna.N.Deshpande-Head Master of Scholars Academy deposes about issuing of birth certificate certifying the date of birth of the victim girl as 29.1.2000 Pw.2 Jayaram-Witness to the spot mahazar Pw.3 Eshwar Pw.4 Lakshmikantha eyewitnesses to the alleged incident Pw.5 Ramesh-Father of the victim girl as well as the complainant Pw.6 Varalakshmi-mother of the victim girl Pw.7 Victim girl Pw.8 G.Krishnappa-ASI deposes about receipt of the complaint-Ex.P5 and registering of FIR-Ex.P8 Pw.9 P.R.Yathiraj-Police Inspector deposes about conducting of Spot Mahazar-Ex.P2, arresting of accused Nos.1 and 2, sending the victim girl for recording the statement under Sec.164 of Cr.P.C, obtaining the birth certificate of the victim girl Pw.10 Chandrakala.M.A- Sub-Inspector deposes about recording the statement of the victim girl Pw.11 AnilKumar.P- Police constable depose about apprehending of accused No.2 10 Spl CC No.142/2015 Before appreciating the evidence, it is better to have a glimpse of the evidence given by all prosecution witness.
15. PW1-Head Master of Scholar's Academy, Tumkur deposes about issuing of Certificate of date of birth-Ex.P1 of the victim girl at the request of the complainant police certifying her date of birth as 29.1.2000.
16. PW2-Witness to the Spot Mahazar-Ex.P2 deposes that, on 23.1.2015 at about 11 A.M., the complainant police visited the house of Ramesh and conduced mahazar as per Ex.P2 and he was present at that time and signed the mahazar.
17. PW3 said to be the eyewitness to the alleged incident deposes that, he knows the complainant-Ramesh, he is a tenant in the house of the complainant since 9 years, he also knows accused Nos. 1 an 2, aAccused No.1 was staying along with his sister in the house in the complainant's building as a tenant, one year prior to the date of incident, the sister of accused No.1 vacated the house of the complainant, thereafter in the year 2014, one day, when he [PW3] was sitting in front of his house, accused Nos. 1 and 2 came in a bike and they were wandering in front of the house of the complainant. Further he deposes that, on 18.1.2014 when he was sleeping, at about 2.45 A.M., i..e, early morning, he heard noise and he came out of the house and saw that, the complainant, his wife and his daughter were there, he questioned them what 11 Spl CC No.142/2015 happened, they told that accused No.1 came inside the gate of the complainant's house and he escaped, when they woke up.
18. PW4 is also said to be the eyewitness to the alleged incident, deposes similarly to the evidence of PW3.
19. PW5-complainant deposes that, the victim girl is his daughter, he has 2 floors house, in the ground floor portion, he has been running provision store and he is also running auto, at the date of complaint, his daughter was studying in 9th standard and aged 15 years, she used to go to school by 8.45 A.M., by walk and used to return home by 4 P.M., sometimes he used to drop her, he knows accused Nos. 1 and 2, the sister and brother-in-law of accused No.1 was staying in the 1st floor of the complainant's building on lease and at that time, accused No.1 used to stay along with his sister and brother-in-law and once accused No.1 tortured a girl going to Sriram Public School and parents of that girl came and bet accused No.1 and after coming to know the said fact, the complainant asked the sister of accused No.1 to vacate the house and accordingly, they vacated the house and thereafter, in the month of December-2014 accused No.1 hold the hands of the complainant's daughter when she was going to school stating that he will drop her to school in bike, but, that incident was not told by the victim girl to him [PW5] because accused No.1 had threatened her if she were to disclose the said incident, he will kill her father. Further he [PW5] deposes that, on 18.1.2015 in the early morning at 2.42 A.M., when the complainant and his wife were sleeping in 12 Spl CC No.142/2015 one room and the victim girl was sleeping in another room, accused No.1 came near the window of the said room of the victim girl and knocked the window and thereafter she screamed and the complainant and his wife woke up and came outside and saw that accused No.1 jumped from the compound wall by climbing the gate and CW4 and CW5 also woke up and came there and he [PW5] narrated the incident to them, on the said date, he did not lodge the complaint, because his daughter's future will be spoiled, therefore, he called the sister and brother-in-law of accused No.1 and narrated about the incident, they sought 2 days time to set right the incident and after 2 days, the sister and brother-in-law of the accused No.1 came to the house of the complainant and told that, accused No.1 is not listening to their words and he[complainant] may proceed and accordingly he [PW5] lodged the complaint on 22.1.2015 as per Ex.P5 and further he deposes that, accused No.2 is also residing in the same area and he was present at the time of the incident along with accused No.1 on his bike.
20. PW6-mother of the victim girl deposes similarly to the evidence of PW5.
21. PW7-victim girl also deposes similarly to the evidence of PW5.
22. PW8-ASI deposes that, on 22.1.2015 when he was on duty in the night at about 10 P.M., the complainant came to the complainant Police Station and gave written complaint, on the 13 Spl CC No.142/2015 basis of the said complaint, he [PW8]registered a case in Cr.No.107/2015 and sent FIR-Ex.P8 and handed over the case records to CW13 for further investigation.
23. PW9-Police Inspector deposes that, he took the case records from CW12 on 23.1.2015 and on the same day, he visited the spot and he conducted panchanama as perEx.P2 in the place shown by the complainant in the presence of CW6 and CW7, thereafter he deputed his police staff to trace out the accused persons, accordingly, on 24.1.2015 his staff secured accused Nos. 1 and 2 and produced them before him at 1.45 P.M in the Police Station, he enquired accused Nos. 1 and 2 and arrested them and produced before the court. He further deposes that, he has recorded the statement of CW1 and also deputed the woman police to record the statement of the victim girl and CW3 and CW4 stated before him as per Ex.P6 and Ex.P3, the victim girl has given her statement before the Learned Magistrate as provided under Sec.164 of Cr.P.C, he sent requisition to the school in which the victim girl was studying for issue of Certificate attesting the date of birth of the victim girl, after completion of investigation formalities, he filed charge-sheet.
24. PW10-Sub-Inspector deposes that on 25.1.2015 as per the oral instruction of the complainant police, she has recorded the statement of the victim girl.
25. PW11-Police Constable deposes that on 24.1.2015 he along with another police constable were deputed by the Police 14 Spl CC No.142/2015 Inspector to trace out the accused persons in the present case, as per the information given by the informant, accused No.2 was apprehended and produced before the Police Inspector.
26. On the basis of the evidence of the aforesaid prosecution witnesses, learned Public Prosecutor submitted his arguments. In his arguments, learned Public Prosecutor submitted that, accused Nos. 1 and 2 have committed the offence as per the charge leveled against them and Therefore, learned Public Prosecutor submitted that, the accused persons may be convicted.
27. On the other hand, the learned defence counsels for accused Nos.1 and 2 argued that, there are contradictions, omissions, improvements in the evidence of prosecution witnesses and therefore, their evidence cannot be relied upon. Hence, they submitted that, the accused are entitled to an acquittal.
28. After hearing the arguments of learned Public Prosecutor and learned defence counsels for accused No.1 and accused No.2, now it is necessary to scrutinize the prosecution witnesses cautiously by considering their versions in the cross-examination.
29. In this case, the learned defence counsel for accused No.1 would submit:
. there are contradictions in the complaint, evidence of the complainant and his further statement, all the said statements are not in-confirmity with each other;15 Spl CC No.142/2015
. the prosecution has not produced any evidence to show that accused No.1 has earlier tortured a girl of Sriram Public School and in that respect, no complaint lodged by the parents of that girl or any other persons as witnesses to the said incident;
. present incident said to had happened on 18.1.2015, but, the complaint lodged on 22.1.2015, there is delay of 5 days, in the complaint, delay is not explained;
. as per the evidence of the prosecution witnesses, according to the victim girl, accused No.1 told her that, he will come to her house prior to 15 days to the date of the incident, if that is so, the victim girl could have lodged the complaint immediately;
. there was love affair between the victim girl and accused No.1 and parents of the victim girl did not like their love affair and therefore they lodged a false complaint against accused No.1.
.PW3 and PW4 are the tenants in the house of the complainant and they are tutored witnesses and therefore, their evidence cannot be relied upon.
Therefore the prosecution has failed to prove the guilt of accused No.1 that he has committed the alleged offence.
30. The learned defence counsel for accused No.2 would submit:
. none of the prosecution witnesses deposed about the involvement of accused No.2 in the alleged offence ;
. merely because, accused No.2 wandering with accused No.1, it cannot be said that, accused No.2 also abetted the crime.16 Spl CC No.142/2015
Therefore the prosecution has failed to prove the guilt of accused No.2 that he has committed the alleged offence.
31. On the basis of the aforesaid contradictions, inconsistencies, omissions pointed out by the learned defence counsels for accused No.1 and accused No.2, they submitted that, the prosecution has not proved the guilt of the accused persons beyond reasonable doubt that, the accused Nos. 1 and 2 have committed the alleged offences and hence, they prayed for an order of acquittal of accused Nos. 1 and 2.
32. On the other hand, learned Public Prosecutor argued that, in this case, it is admitted fact that, accused No.1 was residing along with his sister and brother-in-law in the house belonging to the complainant prior to the date of incident. Further, the accused have not denied the age of the victim girl that, she is below the age of 18 years, the prosecution witnesss-PW3 and PW4 deposed that, they witnessed the incident and they are the eyewitnesses. Further learned Public Prosecutor submitted that, the prosecution has placed evidence of PW1 so as to say that, the date of birth of the victim girl is 29.1.2000 as per Ex.P1, drawing up of Mahazar as per Ex.P2 is proved by the prosecution by examining PW2-Jayaram and further in so far as incident happened is concerned, the prosecution examined the eyewitness PW3, though PW3 partly turned hostile, he deposes that, he is residing in the building belonging to the complainant and he also deposes that, 17 Spl CC No.142/2015 accused No.1 was wandering in front of the house of the complainant and that in the month of January-2015 [there is correction in the year, it is not 2014, but it is 2015] one day, when he was sleeping in his house at 2.45 A.M., he heard the galata and came out from his house and he saw that, the complainant, his wife and his daughter were near the gate and they told that, accused No.1 came inside the gate and afterwards he [accused No.1] jumped out from the gate. Further another witness-PW4 though he turned partly hostile to the prosecution case, he also deposed similarly to the evidence of PW3 stating that, accused No.1 was earlier residing in the same building along with his sister and brother-in-law and on 18.1.2015, early morning at about 2.45 P.M., there was a galata and he came outside from his house and the complainant told that, accused No.1 came inside the compound wall and thereafter jumped out of the compound wall.
33. Further learned Public Prosecutor submitted that, PW5-father of the victim girl, PW6-mother of the victim girl and PW7-victim girl herself categorically deposed about the incident, the evidence of PWs-5, 6 and 7 are corroborated to each other and therefore their evidence can be accepted so as to convict the accused persons. Further, it is submitted that, sole testimony of the victim girl can be relied upon.
34. Further learned Public Prosecutor submitted that, the police ofifical-PW8 deposes about the receipt of the complaint as per Ex.P5 and registering of case in FIR as per Ex.P8 and further 18 Spl CC No.142/2015 PW9-Investigating Officer deposes about conducting of spot mahazar as per Ex.P2, arresting the accused persons, recording the statements of the witnesses and further the victim girl also given her statement before the Learned Magistrate, PW10 deposed that, she recorded the statement of the victim girl, PW11 deposes about securing of accused No.2 . Therefore, learned Public Prosecutor submitted that, in this case, prosecution by examining all the aforesaid witnesses proved the guilt of the accused Nos. 1 and 2 and nothing worth elicited from their cross-examination so as to disbelieve their evidence and therefore, the evidence of the prosecution witnesses may be accepted.
35. On the other hand, learned defence counsel for accused No.1 during the course of arguments drawn the attention of this court with regard to the contradictions in the evidence of the complainant. He argued that, the incident said to have taken place on 18.1.2015, but the complaint is lodged on 22.1.2015, as per Ex.P5. He argued that, in Ex.P5, the complainant has not explained why there is delay in lodging the complaint.
36. Further during the course of evidence of PW5, he deposed that, delay in lodging the complaint is that, he informed the sister and brother-in-law of accused No.1 to advice accused No.1 not to do such act in future and therefore he waited for 2 to 3 days and thereafter, the sister and brother-in-law of accused No.1 told the complainant that, accused No.1 will not mend his ways and he has not listened to their words and therefore, they told the 19 Spl CC No.142/2015 complainant to take action against accused No.1. Hence, there is delay in lodging the complaint. During the course of cross-examination of PW5, it is suggested to PW5 that, he did not approach the sister and brother-in-law of accused No.1 and he [PW5] is saying lie before this court, that suggestion is denied by PW5. Further, it is suggested to PW5 in the cross-examination that, there was dispute between the complainant and sister and brother- in-law of accused No.1 with regard to taking the house for lease and in that regard, there was enmity between the complainant and the sister and brother-in-law of accused No.1 and therefore, the present case is filed making false allegations against accused No.1, that suggestion put to PW5 was denied. In so far as arguments addressed by the learned defence counsel for accused No.1 is concerned that, there was enmity between the complainant and the sister and brother-in-law of accused No.1, if that is true, on behalf of accused No.1, his sister and brother-in-law would have been examined by accused No.1, but, they are not examined by accused No.1, they are material witness with regard to this allegation made against accused No.1., but, as the learned defence counsel for accused No.1 did not choose to cross-examine the sister and brother-in-law of accused No.1, adverse inference can be drawn against accused No.1 of his plea that, false complaint is lodged against him, because of the enmity with regard to taking of the house of the complainant for lease, cannot be accepted.
37. In so far as delay in lodging the complaint is concerned, it is properly explained by the complainant, though it is not 20 Spl CC No.142/2015 mentioned in Ex.P5, during the course of evidence, PW5 has deposed that, he tried to advise accused No.1 through his [accused No.1] sister and brother-in-law, but, accused No.1 did not correct himself and therefore, he [PW5] lodged the complaint. That explanation appears to be genuine explanation and it may be accepted with regard to delay in lodging the complaint. Therefore, the first and foremost argument addressed by the learned defence counsel for accused No.1 with regard to delay in lodging the complaint, is not sustainable.
38. Further learned defence counsel for accused No.1 argued that, there was love affair between the victim girl and accused No.1, as the parents of the victim girl did not like the said love affair, they lodged false complaint against accused No.1. In so far as this allegation is concerned, accused No.1 has not placed any proof. PW3 and PW4 who are the eyewitnesses stated to be residing in the building belonging to the complainant, if there was any love affair between the victim girl and accused No.1, then, during the course of cross-examination of PW3 and PW4 on behalf of accused No.1, suggestion would have been put to them that, there was love affair between the victim girl and the accused No.1. Absolutely no such suggestion put to them. Further PW3 and PW4 being the eyewitnesses to the alleged incident deposed that, Accused No.1 was residing in the building of the complainant along with his sister and brother-in-law and they also deposed that, accused No.1 used to wander in front of the house of 21 Spl CC No.142/2015 the complainant even after his sister vacated the house. On perusal of cross-examination of PW3 and PW4 absolutely there are no evidence elicited from them so as to deny that no incident had taken place on that day. Suggestion put to PW3 and PW4 that, on that day i.e., on 18.1.2015, no incident had taken place was denied by them [PW3 and PW4]. So, it cannot be said that, on 18.1.2015 the incident had not taken place and it is pertinent to note that, PW3 and PW4 had no enmity against accused No.1. Learned defence counsel for accused No.1 argued that, the complainant forced PW3 and PW4 to depose as such, because they are the tenants in the house of the complainant. It is also pertinent to note that, because PW3 and PW4 are the tenants in the house of the complainant, it cannot be said that, they deposed in favour of the complainant, if really they [PW3 and PW4] are the tutored witnesses by the complainant, then they would not have been treated as partly hostile witnesses by the prosecution, they would have completely depose in favour of the prosecution, supporting the case of the prosecution. Therefore, the arguments canvassed by the learned defence counsel for accused No.1 that, PW3 and PW4 are tutored witnesses, is not sustainable.
39. Further learned defence Counsel for accused No.1 argued that, as per the evidence of PW5-complainant, he admitted that, the school in which the Victim girl was studying is very near to the house of the complainant. At Page No.7 of cross-examination of PW5 he deposed that, the school of the Victim girl situated about 3/4th Kilometers from his house and she used to go to school by 22 Spl CC No.142/2015 walk, it is deposed by PW5 that, previous to the date of incident, the accused No.1 used to follow his daughter, if really, accused No.1 followed his daughter while she was going to school, then she should have disclosed the said fact to her parents and further when the school is situated very near to the house of the complainant, then, the complainant could have also noticed about the conduct of accused No.1. Further, learned defence Counsel for accused No.1 argued that, at Page No.8 of cross-examination of PW5, he admitted that, all parents would watch their wards and they will be very careful about the behaviour of their children. Further PW5 also admitted that, if anybody comes and tells to any girl that, he will come to his house in the night hours, then, the said girl will be very afraid. If that is so, in the present case, the complainant's case is that, the accused No.1 told his daughter that he [accused] will come to his house 15 days prior to the date of incident and if really the accused No.1 told her, then, she would have been very afraid and she would inform to her parents. But, she did not inform her parents about the said incident. Therefore, learned defence Counsel for accused No.1 argued the incident has not at all happened and the complainant only with an intention to separate the Victim girl and the accused No.1 who were loving each other, filed this false complaint.
40. As a reply to the said arguments, learned Public Prosecutor brought to the notice of this court that, during the course of cross-examination of PW5, at Page No.11, it is suggested by learned defence Counsel for accused No.1 that, accused No.1 23 Spl CC No.142/2015 hold the hands of the Victim girl and dragged her towards his motor cycle and by doing so, he took her on his motor cycle. The very suggestion put by the learned defence Counsel for accused No.1 itself shows that, the accused No.1 tried to make sexual harassment on the Victim girl. Further, it is pertinent to note that, the Victim girl who is examined as PW7 deposed about the incident. She [PW7] was cross-examined in length. She has denied the suggestions put to her that, the accused No.1 that on 18.1.2015 did not come to her house and has not committed any offence. Further she has also denied that, she has not given statement before the Learned Magistrate as provided under Sec.164 of Cr.P.C. Therefore, learned Public Prosecutor argued that, the evidence of the victim girl may be relied upon.
41. I have gone through the evidence of PW7-victim girl. She narrated what had happened. Her evidence is exactly similar to the evidence of PW5 and PW6. Though she was cross-examined in length, nothing worth elicited to disbelieve her creditworthiness. In this regard, learned Public Prosecutor has referred to a decision reported in 2015 (4) Crimes 246 [Jodhan Vs. State of M.P], it is observed that:
"The evidence of prosecutrix is more reliable. Even minor contradictions are insignificant, discrepancies in the statement of the prosecutrix immaterial".
Though in this case, accused No.1 took the defence that there was love affair between himself and the Victim girl, during the course of cross-examination of PW7-Victim girl, no suggestion put 24 Spl CC No.142/2015 to her that there was love affair between her and accused No.1. Absolutely there are no materials to disbelieve her evidence. Therefore, in the present case on accepting the evidence of PW5, PW6 and especially the evidence of PW7-Victim girl, the prosecution has proved the guilt of accused No.1 beyond all reasonable doubt.
42. In so far as accused No.2 is concerned, though it is stated that, he instigated accused No.1 to commit the said offence, on perusal of the evidence of the Prosecution witnesses, the prosecution failed to elicit the evidence from the witnesses that, the accused No.2 had the mens-rea to abet accused No.1 to do such an act. Merely because accused No.2 was with accused No.1, it cannot be said that, he [accused No.2] abetted the accused No.1 to do such offence. Therefore, so far as accused No.2 is concerned, the prosecution has failed to prove the guilt of accused No.2 beyond reasonable doubt. Accordingly, accused No.2 is entitled to an acquittal.
43. To sum up in this case, the charges made against accused No.1 is punishable under Secs. 354, 448, 506 and 509 of IPC and under Sec.12 of POCSO Act, 2012. In so far as Sec.354 of IPC is concerned, accused No.1 while the victim girl was going to the school by dragging and pulling her hands tried to outrage her modesty, further accused No.1 on 18.1.2015 by entering into the compound of the victim girl's house without their permission had trespassed and hence committed the offence punishable 25 Spl CC No.142/2015 under Sec.448 of IPC, further accused No.1 threatened the victim girl with dire consequences that if she were to disclose that the accused No.1 used to follow the victim girl and harassing her, thereby committed the offence punishable under Sec.506 of IPC, and further the accused No.1 that on 18.1.2015 in the nigh hours i.e., early morning at 2.45 P.M., by entering into the house of the victim girl and by knocking down of the window of the room wherein the victim girl was sleeping intended to insult the modesty of a woman, thereby committed the offence punishable under Sec.509 of IPC, further the accused by doing such acts committed sexual harassment as defined under Sec.11 of POCSO Act, 2012, punishable under Sec.12 of POCSO Act, 2012. The prosecution prove the guilt of accused No.1 as per the discussions and reasons assigned under the aforesaid Paragraphs. However, the prosecution failed to prove the guilt of accused No.2 that he abetted accused No.1 to commit such an act. Accordingly, I answer Point Nos.1 to 5 in the AFFIRMATIVE against accused No.1 and Point Nos.1, 3 and 4 in the NEGATIVE against accused No.2.
44. POINT NO.6: In view of my aforesaid discussions, I proceed to pass the following:
ORDER Accused No. 1 is found guilty of the offences punishable under Secs.354, 448, 506 and 509 of IPC and under Sec.12 of POCSO Act, 2012.26 Spl CC No.142/2015
In so far as Accused No.2 is concerned, he [accused No.2] is acquitted of the offences punishable under Secs.354, 448, 506 and 509 of IPC and under Sec.12 of POCSO Act, 2012.
To hear regarding sentence as against accused No.1 by 21.1.2017.
[Dictated to the Stenographer partly and directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 20th day of January, 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
21.1.2017 ORDER REGARDING THE SENTENCE Accused No.1 produced from judicial custody, the learned defence counsel for accused No.1 also present and learned Public Prosecutor also present. Heard accused No.1 personally and the learned defence counsel for accused No.1 also addressed his arguments on quantum of sentence and also heard learned Public Prosecutor.
Accused No.1 submitted that, he has not committed the alleged offence, he is of poor background, the victim girl was in love with him, his brother is blind person, his father is suffering from illness, his mother is the only woman to look after his father and brother, there is no avocation for her to earn livelihood, h is an electrician and earning livelihood, he is the only bread earner in 27 Spl CC No.142/2015 his family and he is having whole responsibility of his family and therefore, he requested for taking lenient view in imposing the sentence.
Further the learned defence counsel for accused NO.1 also addressed the arguments on quantum of sentence. He submitted that as submitted by accused No.1 himself that, accused No.1 is of poor background, due to his bad luck, he involved in the present case, accused No.1 has been in judicial custody since 1 year 3 months, though he was on bail, now he has been in judicial custody under Body warrant as he is involved in another case pertaining to the present love affair with the victim girl and himself. Therefore, the learned defence counsel for accused No.1 submitted that, lenient view may be taken in imposing sentence and further he submitted that, accused No.1 may be sentenced to imprisonment for the days already undergone by him i.e., 1 year 3 months and by giving set- off for those days, he may be released.
On the other hand, learned Public Prosecutor submitted that, no lenient view may be taken in imposing the sentence because accused NO.1 has committed another offence subsequent to this offence i.e. he kidnapped the victim girl when he was on bail and by threatening her, he had sexual intercourse with her and thereby committed the offences punishable under Secs. 366(A), 506 and 376 of IPC r/w Sec.4 of POCSO Act, 2012 and charge-sheet has already been filed against him in Cr.No.2/2016 28 Spl CC No.142/2015 pending before another Sessions court and therefore, learned Public Prosecutor submitted that, no lenient view can be taken in imposing sentence against accused No.1 and whatever punishment prescribed under aforesaid provisions of law, i..e, for which accused NO.1 has been convicted in the present case, may be awarded. Further learned Public Prosecutor submitted that, victim girl may be given compensation as provided under Sec.357(A) of Cr.P.C directing the accused No.1 to pay compensation to the victim girl.
In this case, accused No.1 has been found guilty for the offences punishable under Secs.354, 448, 506 and 509 of IPC and under Sec.12 of POCSO Act, 2012.
Sec.354 of IPC provides for imprisonment for 2 years or fine or both.
Sec.448 of IPC provides for imprisonment for 1 year or fine of Rs.1,000/- or both.
Sec.506 of IPC provides for imprisonment for 2 years or fine or both.
Sec.509 of IPC provides for Simple Imprisonment for 1 year or fine or both.
Sec.12 of POCSO Act, 2012 provides imprisonment of either description for a term which may extend to 3 years and shall also be liable to fine.
29 Spl CC No.142/2015In this case, the prosecution has placed materials i.e., charge-sheet to show that, this accused No.1 is involved in another Crime [Cr.No.2/2016] for the offences punishable under Secs. 366(A), 506 and 376 of IPC r/w Sec.4 of POCSO Act, 2012 against the same victim girl under threat, though he was knowing that, there was case already pending.
Considering the submissions made by the accused No.1 himself that, he was in love affair with the victim girl and he is of poor background, he is having blind brother and ailing father and his mother alone has to look after the family, further the prosecution has not placed any materials to show that, accused No.1 is financially well, he has capacity to pay the fine amount and also to pay the compensation to the victim girl. In the absence of any materials placed by the prosecution, with regard to economic status of accused No.1, considering all these factors, I proceed to pass the following:
SENTENCE The accused No.1 shall undergo simple imprisonment for a period of One Year each for the offences punishable under Secs.354, 448, 506 and 509 of IPC.
Further, accused No.1 shall undergo Rigorous Imprisonment for a period of 2 years and he shall also pay fine of Rs.10,000/-. In default of payment of fine amount, 30 Spl CC No.142/2015 accused No.1 shall undergo Simple Imprisonment for 6 months.
If the fine amount of Rs.10,000/- is recovered, a sum of Rs.8,000/- shall be paid as compensation to the victim girl.
The period of detention undergone by the accused No.1 in judicial custody shall be set-off against the term of imprisonment imposed on him, and the accused No.1 shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
All the said sentences shall run concurrently. The sentence of imprisonment imposed in default of payment of fine amount shall run consecutively.
In so far as providing an additional compensation for the victim girl other than the compensation awarded by this court i.e., Rs.8,000/-, the complainant police is directed to file a Report with regard to the present status of the Victim girl before this court within a period of One Month from this date, so as to make recommendation to District Legal Services Authority, Bengaluru Urban District.
31 Spl CC No.142/2015Office is directed to supply the free copy of this Judgment to the accused No.1 forthwith.
(Dictated to the Stenographer in the open court, transcript corrected and then pronounced by me in the Open Court on this the 21st day of January 2017).
[RAJESHWARI.N.HEGDE] LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Krishna.N.Deshpande CW8 18.8.2015
Pw.2 Jayaram CW6 18.8.2015
Pw.3 Eshwar CW4 18.8.2015
Pw.4 Lakshmikantha CW5 18.8.2015
Pw.5 Ramesh CW1 18.8.2015
Pw.6 Varalakshmi CW3 18.8.2015
Pw.7 Tejashree CW2 18.8.2015
Pw.8 G.Krishnappa CW11 29.1.2016
Pw.9 P.R.Yathiraj CW13 23.3.2016
Pw.10 Chandrakala.M.A CW9 23.3.2016
Pw.11 AnilKumar.P Additional 15.11.2016
witness
Documents marked for the prosecution:
Ex.P1 Certificate issued by the Head Master of the
School certifying the date of birth of the victim girl as 29.1.2000 Ex.P1(a) Signature of PW1 32 Spl CC No.142/2015 Ex.P2 Spot Mahazar Ex.P2(a) Signature of PW2 Ex.P2(b) Signature of PW5 Ex.P2(c) Signature of PW9 Ex.P3 Statement given by PW3 before the complainant police Ex.P4 Statement given by PW4 before the complainant police Ex.P4(a) Relevant portion Ex.P5 Complaint dated: 22.1.2015 Ex.P5(a) Signature of PW5 Ex.P5(b) Signature of PW8 Ex.P6 Relevant portion of Statement given by PW6 before the complainant police Ex.P7 Statement given under Sec.164 of Cr.P.C before the Learned Magistrate by the victim girl Ex.P7(a) Signature of PW7 Ex.P8 FIR Ex.P8(a) Signature of PW8 Ex.P9 Letter issued by BBMP dated: 10.3.2015 to the complainant police Witness examined for the accused: NIL.
Documents marked for the accused:
Ex.D1 Relevant portion of the Statement given by PW5 before the complainant police LIV Addl., City Civil & Sessions Judge, Bangalore.33 Spl CC No.142/2015
20.1.17 Accused No.1 not produced from judicial custody. Accused No.2 is present.
Judgment pronounced in open court and informed to Accused No.1 through V.C:
[Vide separate detailed Judgment] Accused No. 1 is found guilty of the offences punishable under Secs.354, 448, 506 and 509 of IPC and under Sec.12 of POCSO Act, 2012.
In so far as Accused No.2 is concerned, he [accused No.2] is acquitted of the offences punishable under Secs.354, 448, 506 and 509 of IPC and under Sec.12 of POCSO Act, 2012.
To hear regarding sentence as against accused No.1 by 21.1.2017 LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
34 Spl CC No.142/201521.1.17 Accused No.1 produced from judicial custody. The learned counsel for the accused No.1 is present and learned Public Prosecutor is also present. Heard regarding the sentence.
Sentence pronounced in open court:
[vide separate detailed sentence] The accused No.1 shall undergo simple imprisonment for a period of One Year each for the offences punishable under Secs.354, 448, 506 and 509 of IPC.
Further, accused No.1 shall undergo Rigorous Imprisonment for a period of 2 years and he shall also pay fine of Rs.10,000/-. In default of payment of fine amount, accused No.1 shall undergo Simple Imprisonment for 6 months.
If the fine amount of Rs.10,000/- is recovered, a sum of Rs.8,000/- shall be paid as compensation to the victim girl.
The period of detention undergone
by the accused No.1 in judicial custody
shall be set-off against the term of
imprisonment imposed on him, and the
accused No.1 shall undergo the
remaining sentence as provided under
Sec.428 of Cr.P.C.
35 Spl CC No.142/2015
All the said sentences shall run
concurrently. The sentence of
imprisonment imposed in default of
payment of fine amount shall run
consecutively.
In so far as providing an additional
compensation for the victim girl other
than the compensation awarded by this
court i.e., Rs.8,000/-, the complainant
police is directed to file a Report with
regard to the present status of the Victim
girl before this court within a period of
One Month from this date, so as to
make recommendation to District Legal
Services Authority, Bengaluru Urban
District.
Office is directed to supply the free
copy of this Judgment to the
accused No.1 forthwith.
[RAJESHWARI.N.HEGDE]
LIV ADDL., CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY.
36 Spl CC No.142/2015