Bangalore District Court
Unknown vs Sardhar on 17 December, 2016
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 17th DAY OF DECEMBER 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 539/2014
COMPLAINANT :
The State of Karnataka by
K.R.Puram Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
Sardhar,
S/o. Jabbar,
Aged about 69 years,
R/at No.102, Rajiv Gandhinagr slum,
Venkateshwara Theater road,
Devasandra, K.R. Puram,
Bangalore - 36.
[Reptd by Sri.Mohammed Pasha.C
-Advocate]
***
2 Spl.C.C.539/14
JUDGMENT
K.R. Puram Police, Bangalore City have charge sheeted the accused for offences punishable under Sections 376, 511 of I.P.C. and 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 aged about 7 years in the year 2014 is the daughter of CW-1, the complainant. Accused, the distant relative of the complainant was residing nearby their house. On 31.8.2014 at about 11.30 a.m. while she was playing in front of her house nearby Ganesha Temple, Rajiv Gandhi Nagar accused took away the victim girl to his house by offering the chocolate.
After taking her to his house closed the door, removed the clothes of CW-2, touched her breast and pressed her vagina, he was removing his clothes, then CW-2 was afraid of it and shouted. CW-4 Jameela, the relative of the prosecutrix heard the shout of CW-2, knocked at the door of the accused, on being opened the door, she found the victim in the nude, she
3 Spl.C.C.539/14 dressed her up and brought her home and informed CW-1. On coming to know CW-1 had lodged a complaint on the same day afternoon. Investigating Officer registered the case, recorded the statement of prosecutrix and drew necessary mahazars. Accused was apprehended. Accused and the victim girl were sent to hospital for medical examination. By completing the investigation, he submitted charge sheet to the Court for the aforesaid offences.
3. The charge sheet submitted to 50th A.C.C. & S.J Court. Cognizance was taken and registered in Special C.C. Thereafter, on the point of jurisdiction, it was transferred to the present court. On hearing both sides the charge was framed for offences punishable under Sections 376 r/w 511 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 not guilty and claimed to be tried. Hence, posted for prosecution evidence.
4 Spl.C.C.539/14
4. On prosecution side got examined as many as 7 witnesses as P.W.1 to 7 out of 14 charge sheet witnesses and got marked the documents at Ex.P.1 to Ex.P.7. 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. The points that arise for my consideration are as under:
1. Whether the prosecution has proved beyond reasonable doubt that accused had made an attempt to commit rape on CW-2 aged about 7 years on 31.8.2014 at 11.30 a.m in his house situated nearby Ganesha Temple, Venkateshwara Tent Road, Devsandra, 5 Spl.C.C.539/14 Bangalore, punishable under Section 376 r/w 511 of I.P.C
2. Whether the prosecution has proved beyond reasonable doubt that accused had committed aggravated sexual assault on CW-2 on the aforesaid date, time and place by touching her private parts, punishable under Section 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012?
3. What order?
7. My findings on the above points are as under:-
Point No.1 : In the affirmative
Point No.2 : In the affirmative
Point No.3 : As per final orders for the
following
REASONS
8. Points No.1 & 2: These two points are taken
together for discussion to avoid repetition of facts as they are interconnected to each other.
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9. The prosecution has made allegations against the accused that he had made an attempt to commit rape on PW- 4, the prosecutrix aged about 7 years, on 31.8.2014 at about 11.30 a.m. in his house situated nearby Ganesha temple, Venkateshwara tent road, Rajiv Gandhinagar, Bangalore and also committed aggravated sexual assault on her by touching her private parts. There are two charges against the accused. One is for attempt to rape, another is for aggravated sexual assault.
10. 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 PW-4 was of 7 years as on the date of occurrence. POSCO Act applies in case of child.
11. Section 29 of Protection of Children from Sexual Offence Act, 2012 provides presumption in favour of the prosecution, it reads as under:-
"Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and 7 Spl.C.C.539/14 section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."
Therefore, at the first instance, the age of the prosecutrix shall have to be looked into. There is also charge under provision of POSCO Act. In order to prove the age of PW-4, the prosecution has got examined PW-3 complainant who is mother of the prosecutrix, PW-4, the prosecutrix and PW-1 Thimmegowda, Head Master of the school in which she was studying. According to prosecution PW-1 had issued school certificate as per Ex.P1 mentioning her date of birth is 10.8.2006. PW-1 has also testified inconsonance with Ex.P1. The date of birth mentioned in Ex.P1 has not been disputed in the cross-examination led on defence side. The oral testimony of PW-1 is also corroborated by PW-3 and 4. Even in the cross-examination of Pw-3 and 4, the age of prosecutrix is not disputed on defence side. As per Ex.P1, the age of PW- 4 was of 8 years as on the date of alleged incident.
8 Spl.C.C.539/14
12. 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). Accordingly, the age of PW-4 was under 18 years very particularly below 12 years. As mentioned in supra, the second charge is under Section 9(m) r/w Section 10 of POSCO Act. Section 9(m) deals with the offence committed against the child below 5 years. Hence, whether the age of prosecutrix was below 12 years or not as on the date of occurrence is also very material. In view of oral as well as documentary testimony placed on prosecution side, the age of PW-4 can very well be concluded that she was below 12 years as on the date of alleged incident.
9 Spl.C.C.539/14
13. Now, the question arises whether accused had sexually exploited PW-4 by making attempt to commit rape, committed aggravated sexual assault on her by touching her private parts. According to prosecution accused was residing nearby the house of PW-4. On 31.8.2014, prosecutrix was playing at about 11.30 a.m. in front of her house, then she was taken by accused to his house by offering chocolate. She went with him. He closed the door. He removed her clothes. He touched her breast, pressed her vagina. He was removing his clothes, she was afraid of it and shouted. By that time, PW-5 Jameela, the sister-in-law of PW-3 heard the shout of PW-4, she knocked on the door of accused, she found no clothes on prosecutrix, she dressed her up and brought her outside and informed PW-3. On coming to know this incident PW-3 had lodged a complaint as per Ex.P4 on the same day at about 2.05 p.m. Thereafter, Investigating Officer recorded the 161 statement of prosecutrix on the same day. He also got recorded 164 statement as per Ex.P7 on 2.9.2014. Accused was apprehended on the same day from his house.
10 Spl.C.C.539/14 Accused and the prosecutrix were sent to hospital for medical examination. This is the case of the prosecution.
14. The learned Public Prosecutor has argued that the presumption under Section 29 of the Act is in favour of the prosecution, accordingly the burden is on the accused to establish contrary to case of the prosecution. It is pertinent to note, ofcourse as the presumption laid down under Section 29 of the Act, when a person has been prosecuted for any one of the offences the Special Court shall presume that he has committed said offence unless contrary is proved. However, the burden is always on the prosecution to prove its case beyond reasonable doubt. Then, the burden is shifted to accused to rebut the same. Therefore, what is the evidence placed on prosecution side is to be seen at first instance.
15. In order to prove its case, prosecution has got examined as many as 7 witnesses. PW-3 the complainant and mother of the prosecutrix, PW-4 the victim girl, PW-5 Jameela, 11 Spl.C.C.539/14 sister-in-law of Pw-3, PW-6 and 7 are the material witnesses in the present case.
16. PW-3 is the mother of the prosecutrix. She came to know about the incident from Pw-5 Jameela. On an enquiry also Pw-4 disclosed the incident before her. Then PW-3 had lodged a complaint as per Ex.P4. Ex.P4 was lodged on 31.8.2014 at 2.05 p.m. As per Ex.P4 she made allegation against the accused as already mentioned in supra. Relevant portion of Ex.P4 reads as under:-
"£Á£ÀÄ K£Á¬ÄvÉAzÀÄ PÉýzÁUÀ D¥ï (¸ÀzÁðgï) gÀªÀgÀÄ £À£ÀUÉ ZÁPÀ¯ÉÃmï PÉÆqÀÄvÉÛãÉAzÀÄ ªÀÄ£ÉAiÀÉƼÀUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃV ¨ÁV®Ä ºÁQPÉÆAqÀi £À£Àß §mÉÖUÀ¼À£ÀÄß ©aÑ £À£Àß JzÉUÀ¼À£ÀÄß PÉÊUÀ½AzÀ CzÀÄ«ÄzÀgÀÄ £Á£ÀÄ ¨ÉÃqÀªÉAzÁUÀ ¤£ÀUÉ ZÁPÀ¯ÉÃmï PÉÆqÀÄvÉÛãÉAzÀÄ ¸ÀĪÀÄä¤gÀĪÀAvÉ ºÉý, ªÀÄvÉÛ JzÉUÀ¼À£ÀÄß, GZÉÑ ªÀiÁqÀĪÀ eÁUÀªÀ£ÀÄß eÉÆÃgÁV CzÀÄ«ÄzÀgÀÄ DUÀ £À£ÀUÉ £ÉÆêÀÅ D¬ÄvÀÄ, £ÀAvÀgÀ D¥sï (¸ÀzÁðgï) gÀªÀgÀÄ CªÀgÀ ¥ÁåAmï vÉUz É ÀgÀÄ DUÀ £À£ÀUÉ ¨ÀAs iÀĪÁV eÉÆÃgÁV QgÀÄaPÉÆAqÉ JAzÀÄ ºÉýzÀ¼ÀÄ "
PW-3 has also testified the same as in Ex.P4. In the chief-examination itself PW-3 has stated prosecutrix and the children of her brother were playing in front of the house as 12 Spl.C.C.539/14 they had holiday on that day. That was Sunday at about 11.30 a.m. PW-5 Jameela at that time had gone to bring firewood. PW-3 also has stated in further that PW-5 Jameela heard the shout of PW-4 and got the door opened and found PW-4 was disrobed and she informed the same to her. Her oral testimony corroborates Ex.P4. Ofcourse, PW-3 has stated "on being checked the private part found the redness. Ofcourse, this is an exaggeration made by PW-3. Merely because of this reason the other part of her chief-examination cannot be discarded. It is quite natural that some discrepancy may arise in the statement of prosecution witnesses. It may be because of the time gap from the date of occurrence and the date of examination or due to lapse of little memory. Whether it amounts material contradictions of which goes to root of the prosecution is the crucial point. But, the aforesaid exaggeration made by PW-3 does not take away whole case of the prosecution and her statement cannot be said to be unbelievable.
13 Spl.C.C.539/14
17. PW-4 is another material witness in the present case. She is the proper person to speak about the incident taken place. In the cases like this nature the eyewitnesses may not be available. So also in the present case there is no other eyewitness witnessing the incident taken place. Therefore, the version of the PW-4 carries more weight. Whether her evidence is found reliable or not is to be seen.
18. PW-4 is aged about 8 years as on the date of alleged incident. In her chief-examination itself she has narrated the whole incident taken place in the house of the accused. She has stated she had no school on Ganesha festival day. She was playing in front of the house. Then the accused offered the chocolate and took her to his house, he asked her to remove her dress, she refused, then he himself unclothed her, touched her vagina and also whole body, then she shouted, then PW-5 Jameela the paternal aunt heard her shout, got opened the door, then she was put on the dress and took her to the house, by that time her mother came. The relevant portion of her oral testimony is better to reproduce as under:
14 Spl.C.C.539/14 "DUÀ ¸ÀzÁðgï ZÁPÀ¯ÉÃmï PÉÆqÀÄvÉÛÃ£É ¨Á JAzÀÄ £À£ÀߣÀÄß PÀgÉzÀÄPÉÆAqÀÄ CªÀgÀ ªÀÄ£ÉUÉ ºÉÆÃzÀgÀÄ. ¸ÀzÁðgï £À£Àß §mÉÖAiÀÄ£ÀÄß ©ZÀÄÑ JAzÀÄ ºÉýzÀgÀÄ. £Á£ÀÄ ©ZÀĪ Ñ ÀÅ¢®è JAzÀÄ ºÉýzÀÝPÉÌ CªÀ£Éà ©aÑzÀ£ÀÄ. £Á£ÀÄ mÁAiÉÄèmïUÉ ºÉÆÃUÀĪÀ eÁUÀªÀ£ÀÄß ºÁUÀÆ ªÉÄÊAiÉįÁè ªÀÄÄnÖzÀ£ÀÄ. £Á£ÀÄ eÉÆÃgÁV QgÀÄaPÉÆAqÉ£ÀÄ. £ÀªÀÄä CvÉÛ ZÁ¸Á 4 gÀªÀgÀÄ ¸ËzÉ PÀrØAiÀÄ£ÀÄß vÉUÉzÀÄPÉÆAqÀÄ §gÀÄwÛzÀÄÝ £Á£ÀÄ QgÀÄaPÉÆAqÀ ±À§Ý PÉý ¨ÁV°£À §½ §AzÀÄ ¨ÁV®£ÀÄß vÉUÉ, vÉUÉAiÀÄ¢zÀÝgÉ ¥Éǰøï oÁuÉUÉ w½¸ÀÄvÉÛÉÃ£É JAzÀÄ ºÉýzÀgÀÄ. ¸ÀzÁðgï ¨ÁV®£ÀÄß vÉUÉzÀ £À£Àß CvÉÛ ZÁ¸Á 4 gÀªÀgÀÄ £À£ÀUÉ §mÉÖAiÀÄ£ÀÄß ºÁQ £ÀªÀÄä ªÀÄ£ÉUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ. "
The aforesaid relevant portion of her oral testimony would disclose the sexual exploitation committed by the accused on her. According to case of the prosecution she has also given 161 statement before the police. Even she has also stated the same thing in her oral evidence. Ex.P7 is her 164 statement recorded by the learned Magistrate on 2.9.2014. Her oral testimony corroborates Ex.P7 164 statement also. Her evidence is corroborated by oral testimony of PW-3. Ofcourse, PW-4 has stated in her chief-examination while she 15 Spl.C.C.539/14 was playing in front of her house it was 7.00 a.m. According to prosecution it was the time of 11.30 a.m. Merely because of variation in the timings does not make the case of the prosecution unbelievable when there is other strong piece of evidence to establish the case of the prosecution. There is also evidence corroborating her other part of version. Under the circumstance, merely because the variation found in her statement as to timings does not make the prosecution case suspicious.
19. PW-4 is also subjected to cross-examination on defence side. The learned counsel for the accused has strenuously argued that PW-4 has stated in her cross-examination that she was playing with other two children Afrin and Shamreen, Investigating Officer has not enquired these children and not recorded the statement of these children, they are the material witnesses, non-making an enquiry of these children itself doubts the case of the prosecution. PW-4 has clearly stated in her chief examination itself that he took her, not other children. According to prosecution there is also another 16 Spl.C.C.539/14 witness who found the victim girl in the nude at the time of the incident. Above all there is no suspicion found in the oral testimony of PW-4. Ofcourse, she was of 8 years old as on the date of the incident. Accused is not a strange person to her. On going through her whole oral testimony, her evidence is found to be reliable and inspires confidence. Under the circumstance, I do not find any force in the arguments addressed by the learned counsel for the defence. Even if relevant portion of the aforesaid cross-examination is taken into consideration as stated by the learned counsel for the accused, according to PW-4 accused did not take other two children with her to his house, when he offered the chocolate to her Afrin and Shamreen went their home, accused took her to his house and closed the door. There is also found another discrepancy in her cross-examination that day was the Monday. It is pertinent to note in the chief examination itself she has stated that she has no school on that day. According to prosecution it was Sunday she was playing in front of the house then the accused offered the chocolate and took her to his house. It is quite natural that some 17 Spl.C.C.539/14 discrepancy may arise in the evidence of the witnesses very particularly in case of child witness. Therefore, the oral testimony of the child witness shall have to be looked into with utmost care. But, on going through chief as well as cross-examination of PW-4 her evidence cannot be said to be unreliable. In the cross-examination, the learned counsel for the accused made a suggestion that there was a galata between the daughter of the accused and the son of her uncle. According to the defence taken on accused, daughter of the accused is given in marriage to the son of elder sister of mother of the prosecutrix. There is difference between the family of the sister of PW-3, the complainant and the family of the accused in respect of non-sending his daughter to the parents' house. It is pertinent to note this is the problem between the family of the accused and the family of the elder sister of the complainant. Even otherwise, PW-4 has also un- hesitatingly denied the said suggestion made by the learned counsel for the accused. It is an admitted fact that the daughter of accused married the son of her uncle. The minor discrepancy appeared in her oral testimony does not make her 18 Spl.C.C.539/14 entire evidence unbelievable. It does not go to the root of the case of the prosecution.
20. PW-5 Jameela is another material witness in the present case. According to prosecution she had gone to bring firewood, then she heard the shout of PW-4 and got opened the door of the accused and found the victim girl without dress on body. Her oral testimony plays an important role in the present case. On going through her chief-examination she has partly supported the case of the prosecution. Whereas in the cross-examination made by the learned Public Prosecutor she has admitted whole case of the prosecution. Thereafter, she was cross-examined on defence side, wherein nothing contrary is extracted from her mouth to disbelieve her admission in the cross-examination led by the learned Public Prosecutor and also the part of her chief-examination which corroborates the case of the prosecution.
21. In the chief-examination, PW-5 has stated about 3 months back there was a galata nearby the house of the 19 Spl.C.C.539/14 accused that was the day of Sunday. She had gone to bring firewood she came back at 2.00 p.m then, she asked her daughter for water by that time PW-4 came in front of her house and fell down. On an enquiry, she came to know that accused offered chocolate and touched her body, she shouted. Then, she was treated as partly hostile and subjected to cross- examination on prosecution side, wherein she admitted that she heard the cry of PW-4 and got opened the door and found the prosecutrix undressed, on an enquiry she disclosed that accused offered the chocolate, took her to his house, closed the door and touched her private parts. She has also further admitted that she has stated like this before the police. The incident took place on 31.8.2014. She was cross-examined on 21.7.2015. According to her chief-examination she has not denied the case of the prosecution. According to her statement in the chief-examination that galata took place in front of the house of the accused that was the day of Sunday, she had also gone to bring firewood. This part of her evidence supports the prosecution case. When she was put to cross-examination refreshing her memory, then she admitted 20 Spl.C.C.539/14 the same as mentioned in supra. Though she is subjected to cross-examination on defence side nothing contrary is found to disbelieve the case of the prosecution. She has also admitted in her cross-examination done on defence side that the daughter of the accused married the son of Haseena, her elder sister-in-law. According to her statement in the cross- examination Haseena and accused are very cordial. Under the circumstance, there is nothing found on record to disbelieve the version of PW-5.
22. PW-6 Melvin Francis is then P.S.I. who received the complaint at Ex.P4 from PW-3. There is one suggestion made in the cross-examination by the learned counsel for the accused that no explanation is forthcoming in the complaint as to delay in reporting to the police. He has stated that since complainant waited for her husband there was delay as per the information given by her. He further admits that the same is not mentioned in the complaint or F.I.R. It is pertinent to note the incident took place at about 11.30 a.m. the complaint was lodged at 2.05 p.m. This is the case of 21 Spl.C.C.539/14 aggravated sexual assault on the kid of 8 years old. At the time of incident, the father of the child was not at home. That is found on record. Under the circumstance, the delay of few hours in lodging a complaint is not fatal to the case of the prosecution. From the evidence of PW-3 to 5 and also PW-6 the prosecution established that the incident took place on 31.8.2014 when she was playing in front of the house and he took her to inside the house and committed sexual assault. Whether it falls either within the provision of Section 376 r/w Section 511 of I.P.C. and Section 7 r/w 8 or any other provision will be discussed little later. At the first instance, was there any such incident taken place is to be seen. From the aforesaid materials it becomes very clear that the accused had taken the prosecutrix to his house by offering the chocolate and committed sexual abuse.
23. Now, the question arises whether the prosecution has established the charges under Section 376 r/w Section 511 of I.P.C. There are two charges, one is attempted to commit rape punishable under Section 376 r/w Section 511 of I.P.C.
22 Spl.C.C.539/14 and another is aggravated sexual assault punishable under Section 10 of Protection of Children from Sexual Offence Act, 2012. I have already discussed in supra about the oral testimony of the prosecutrix, complainant and also 164 statement of prosecutrix and the contents of the complaint. Section 376 of I.P.C provides the rape. Section 511 of I.P.C deals with punishment for attempting to commit any offences punishable with imprisonment for life or other imprisonment. As per the case of the prosecution accused touched her breast, pressed the vagina of the prosecutrix. He removed her dress, he was removing his dress then PW-4 shouted. This situation would reveal that there was no attempt to commit rape, but it falls within the ambit of Section 354-A of I.P.C. The relevant portion of Section 354-A (1) (i) (ii) reads as under:
(1) A man committing any of the following acts :-
(i) physical contact and advances involving unwelcome and explicit sexual overtures;
(ii) a demand or request for sexual favours.
23 Spl.C.C.539/14 On plain reading of Section 354-A, the age of the victim is not restricted, in other words it applies in cases of woman of any age. Section 10 of I.P.C. the word "woman" denotes a female human being of any age.
24. As alleged by the prosecution it does not attract the ingredients of Section 376 r/w Section 511 of I.P.C. But, Section 354-A of I.P.C. It is established beyond reasonable doubt by the prosecution by putting forth oral testimony of material witnesses of PW-3 to 5 and PW-6.
25. The Protection of Children from Sexual Offence Act, 2012 Whereas POSCO Act 2012 applies in case of offence committed against the child. 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 prosecutrix is of 8 years old as on the date of incident. The charge is also under Section 9(m) r/w Section 10 of POSCO Act. There is also another charge under Section 9(m) r/w Section 10 of POSCO Act 2012.
24 Spl.C.C.539/14
26. There are three main categories of offences found in POSCO Act Namely, (i) penetrative sexual assault (Section 3).
(ii) Sexual assault (Section 7) &
(iii) sexual harassment (Section 11).
According to the allegation made by the prosecution accused had committed sexual assault on the victim who is under the age of 12 years. Hence, the charge is under Section 9(m) of POSCO Act.
27. Section 7 defines Sexual Assault. It 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.
25 Spl.C.C.539/14 Section 9 reads as under:
Aggravated Sexual Assault - (m) whoever commits sexual assault on a child below 12 years.
On plain reading of Section 354-A of I.P.C (i) it provides physical contact and advances involving unwelcome and explicit sexual overtures; As per Section 9 also there must be sexual assault.
28. There are three essential ingredients for offences under Section 9(m) of the Act.
(1) Sexual intention (2) touching the private parts involving physical contact without penetration.
(3) Victim must be under the age of 12 years. The aforesaid ingredients of provisions and the oral testimony of PW-3 to 5 are read together, it clearly falls within the square of Section 354-A of I.P.C. as well as under Section 9(m) r/w Section 10 of POSCO Act 2012. In view of the discussion made in supra the prosecution has proved that the 26 Spl.C.C.539/14 child is under the age of 12 years as on the date of occurrence. There are materials brought on record that accused touched her private parts i.e., breast as well as the vagina of PW-4 by taking her to his house offering the chocolate. Why the accused has been unnecessarily fixed in the present case is another question. Nothing is found on record to disbelieve the version of the prosecutrix and the complainant. Though the defence is taken on defence side that there is a dispute between the family of the accused and the elder sister of the complainant there is no believable evidence on this aspect. During the course of recording 313 statement accused has stated that the prosecutrix was pelting the stone at the door of his house, since he scolded he has been falsely fixed in the present case. According to the cross- examination on defence side there is ill-will between the family of the sister of the complainant and the family of the accused, according to the say of accused while recording the 313 statement he is diabetic patient while he was sleeping at home, the prosecutrix often pelted the stone at him and also at the door, another version is there was galata often taken 27 Spl.C.C.539/14 place between the sister of the complainant and himself. As already discussed in supra there is no evidence on record to show the ill-will between the family of the accused and the family of the sister of the complainant. Merely because it was admitted that his daughter was given in marriage to son of the sister of the complainant, it cannot be assumed that there is a galata between two families. This is the case of sexual assault on the victim girl who was of 8 years as on the date of alleged occurrence. Therefore, it is unimaginable that accused has been falsely fixed at the future of the female kid. It is very difficult to believe the say of the accused. Apart from that it is found on record that he is only the person residing in the family none else. Therefore, there is no question of sending his daughter to his house. His wife has been separately residing. Under this circumstance, there is no force in the contention taken on accused side.
29. PW-7 is then P.I., who partly conducted the investigation and submitted charge sheet to the court. His evidence corroborates the case of the prosecution. There is 28 Spl.C.C.539/14 nothing found in his evidence which doubts the case of the prosecution. PW-2 is the doctor who examined the prosecutrix and also the accused and issued the medical report as per Ex.P2 and 3. Ofcourse, as per Ex.P2 hymen of the victim is intact. As already mentioned in supra this is not the case of rape. There are two charges, one is attempt to commit rape and another is committed aggravated sexual assault by touching her private part. This is not the case of the penetration, but touching the private parts only. Therefore, the mentioning of hymen intact does not take away the case of the prosecution. As per Ex.P3 there is nothing to suggest that accused is incapable of having a sexual intercourse. It speaks about the capability of the accused in the aspect of sexual activities. It favours the case of the prosecution. Because, as per prosecution he had the sexual intention due to which he offered the chocolate and took away the victim girl to his house and exploited her sexually as mentioned in supra. In order to attract ingredients of Section 7 of POSCO Act the sexual intention of accused is also very material. It is one of the ingredients. As per evidence 29 Spl.C.C.539/14 brought on record, the victim girl is below 12 years. Another ingredient is sexual exploitation. That is also established by the prosecution by putting forth the believable, corroborative and convincing evidence by examining PW-1, 3 to 5. The last ingredient of the aforesaid section is the sexual intention of the accused. That can be inferred from the conduct of accused and the situation established by the prosecution. Offering the chocolate, taking away the victim girl to his house, removing of clothes would clearly show the intention of the accused. More particularly touching her private parts shows his sexual intention. Hence, the prosecution has also proved beyond reasonable doubt the sexual intention of the accused. Thus, the prosecution has put forth the reliable and trustworthy evidence with respect to commission of aggravated sexual assault on the prosecutrix. It falls within the ambit of Section 354-A as well as under Section 9(m) r/w Section 10 of POSCO Act 2012. Now the burden is shifted to the accused.
30 Spl.C.C.539/14
31. As discussed in supra, the presumption laid down under Section 29 of the Act is available to the prosecution. Accused has been prosecuted for offence punishable under Section 9(m) r/w Section 10 of POSCO Act. In view of the said provision when the person has been prosecuted for any one of the Sections therein (Section 9 is also there), the special court shall presume that he has committed such offence unless contrary is proved. I have already discussed in supra that on accused side not produced any piece of materials to believe that there is ill-will between his family and the family of the sister of the complainant and because of that reason he has been falsely implicated. Bare averments of the accused which is not supported by any piece of evidence and also which is not supported by any materials on record cannot be believed that there is enmity between two families and they have gone to the extent of fixing the accused at the cost of the character of the female girl. There must be some reason to falsely implicate any person into the cases like this nature. There is sufficient, strong piece of evidence on the part of the prosecution. The prosecution has proved its case beyond 31 Spl.C.C.539/14 reasonable doubt. Accused has failed to rebut the same. He is found guilty of the offence punishable under Section 354-A as well as under Section 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012. Hence, I hold points No.1 and 2 in the Affirmative.
32. POINT NO.3: In view of my above discussion and findings, I proceed to pass the following:
ORDER Accused is found guilty of the offence punishable under Section punishable under Section 354-A of I.P.C. and under Section 9(m) r/w Section 10 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 17th day of December, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
32 Spl.C.C.539/14 22.12.2016 ORDER ON SENTENCE Heard both the sides regarding the sentence. The learned counsel for the accused and also the accused have submitted that he is aged person. He is from poor family.
There is none to take his responsibility. The leniency may be shown.
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 is aged about 69 years as on the date of incident on 31.08.2014. Section 3 of P.O Act does not apply as the offence committed by the accused is punishable under Section 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012 and also under Section 354-A of I.P.C. Section 3 of P.O. Act applies to cases where offence is punishable under Section 379 or Section 380 or Section 404 or 33 Spl.C.C.539/14 Section 420 of I.P.C. or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under I.P.C. or any other law.
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 women are on the rise. The crimes are affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against mandate 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 354-A shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
6. Section 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012 shall be punished with imprisonment of either description for a 34 Spl.C.C.539/14 term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.
7. Section 42 of Protection of Children from Sexual Offence Act, 2012 provides;
Alternate punishment- Where an act or omission constitutes an offence punishable under this Act and also under Sections 1661, 354A, 354B, 354C, 354D, 370, 370A, 375, 376, 376A, 376D, 376E or Section 509 of the Indian Penal Code (45 of 1860) then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punishment under this Act or under the Indian Penal Code as provides for punishment which is greater in degree.
8. In the present case, the punishment prescribed for offence punishable under Section 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012 is higher in degree of which should be taken. The minimum sentence has been prescribed by the legislature making five years 35 Spl.C.C.539/14 imprisonment is statutory mandate, unless court records adequate and special reasons for reduction in terms of acceptance. On accused side assigned some reasons to reduce the sentence that he is from poor family, he is aged of 70 years, he has none to take his responsibility even to pay fine. 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 9(m) r/w Section 10 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 9(m) r/w Section 10 of Protection of Children from
36 Spl.C.C.539/14 Sexual Offence Act, 2012 and sentenced to undergo Simple Imprisonment of five 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 1.9.2014 to till date (totally 2 years 3 months 20 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-4 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. 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 22nd day of December, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
37 Spl.C.C.539/14 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Thimmegowda PW.2 Dr. Nagaraj PW.3 Narseen Taj PW.4 Prosecutrix PW.5 Jameela PW.6 Melvin Francis PW.7 Sanjeevarayappa LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 School certificate Ex.P 1(a) Signature of PW-1 Ex.P 2 Medical report Ex.P 2(a) Signature of PW-2 Ex.P 2(b) Signature of PW-7 Ex.P 3 Accused medical report Ex.P 3(a) Signature of PW-2 Ex.P 3(b) Signature of accused Ex.P3 (c ) Signature of PW-7 Ex.P 4 Complaint Ex.P 4(a) Signature of PW-3 Ex.P 4(b) Signature of PW-6 Ex.P 5 Mahazar Ex.P 5(a) Signature of PW-3 38 Spl.C.C.539/14 Ex.P 5(b) Signature of PW-2 Ex.P 5(c) Signature of PW-6 Ex.P 6 F.I.R.
Ex.P 6(a) Signature of PW-6
Ex.P7 164 statement
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.
*** 39 Spl.C.C.539/14 17.12.2016 40 Spl.C.C.539/14 Judgment pronounced in the open court, operative portion of which reads as under:-
ORDER Accused is found guilty of the offence punishable under Section 354-A of I.P.C. and under Section 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012.
To hear regarding sentence.
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.