Bangalore District Court
State By Parappana Agrahara Police vs Kumara on 13 April, 2018
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the 13th day of April, 2018.
Present: SMT.YADAV VANAMALA ANANDRAO., B.Com. LL.B.[Spl.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO.21/2017
COMPLAINANT: State by Parappana Agrahara Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Kumara,
Son of Late. Aswathappa,
Aged about 26 years,
Residing at No.79, 8th Cross,
Near Old Muneswhara Temple,
Hosapalya,
Bangalore-68.
[By Advocate Sri. Mohammed Pasha.C]
1. Date of commission of offence From 15.5.2015 to 2.7.2015
2. Date of report of occurrence of 2.7.2015
the offence
3. Date of arrest of accused 03.07.2015
4. Date of release of accused [bail] 13.08.2015
5. Period undergone in custody by 1 Month, 10 days
the accused
2 Spl CC No.21/2017
6. Date of commencement of 27.3.2018
evidence
7. Date of closing of evidence 10.4.2018
8. Name of the complainant Sri.Ambrej Pasha, complainant
as well as the father of the
victim girl
9. Offences complained of Sec.366 of IPC and Sec.6 of
POCSO Act, 2012 r/w Sec.376
of IPC and under Secs.9 and 10
of Prohibition of Child Marriage
Act, 2006
10. Opinion of the Judge The accused is acquitted
JUDGEMENT
The Police Inspector, Parappana Agrahara police station has filed charge-sheet against the accused for the offences punishable under Secs. 366, 376 of IPC and Secs. 4, 6 of POCSO Act, 2012 and Secs. 9, 10 of Prohibition of Child Marriage Act, 2006.
2. Gist of the prosecution case is that:
The accused, in between 15.5.2015 to 2.7.2015 under the guise of love affairs and roaming around CW2/Victim girl aged 16 years, who is the minor daughter of CW1 and CW3 and inspite of sending CW2 on coming to know about the love affairs to Bommasandra, Mulabagilu Taluk, Kolar District i..e, the place of grand mother of CW2, the accused without stopping it, came to the house of the grandmother of CW2 and kidnapped her from her 3 Spl CC No.21/2017 legal guardian and induced CW2 of marriage with him with an intent that she would be seduced or forced to have illicit sexual intercourse with the accused and took her [CW2/victim girl] to the building belonging to CW7-Shekar Reddy, located at 4th Floor in Naganathapura, Bangalore, by taking it on rent and kept CW2/victim girl in the said house and got her marriage, with a sexual intent, knowing that she was 16 years of age and a child after getting her married, the accused committed rape/aggravated penetrative sexual assault/ on her repeatedly, knowingly that she was a minor and against her will. Hence, on the basis of the complaint lodged by the complainant/father of the victim girl, a case in Cr.No.260/2015 was came to be registered against the accused. During the course of investigation, after tracing out the victim girl, and on enquiring and recording of her statement about the incident, the accused was arrested and he was taken to the judicial custody. After collecting the materials, the Investigating Officer has filed charge-sheet against the accused. Cognizance was taken. The accused was granted with bail.
3. Initially this case was made over to this court CCH:55. As per the Notification, No. ADM-I (A)/ 614/2017, of the Office of the city Civil Court, Bengaluru, dated:4.8.2017 with effect from the afternoon of 5.8.2017, now, the case is before this Child Friendly Court, Bengaluru Urban District, for disposal.
4. The accused was granted with bail. He is represented by the counsel of his choice. After appearance of the accused, copies 4 Spl CC No.21/2017 of the prosecution papers [charge-sheet] was furnished to the counsel on behalf of accused in-compliance with Sec.207 of Cr.P.C.
5. After hearing the learned Public Prosecutor and the learned counsel for the accused, this court has framed the Charge on 15.9.2017 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed the trial.
6. To prove the case, the prosecution has examined PWs-1 to 3 witnesses, out of total 20 charge-sheet witnesses and placed reliance on Exs.P1 to P5 documents. Since the material witnesses PWs-1 to 3 have turned hostile to the prosecution case and there was no incriminating evidence deposed against the accused, recording of statement of the accused under Sec.313 of Cr.P.C was dispensed with The accused has not chosen to adduce defence evidence on his behalf.
7. Heard the arguments of the learned Public Prosecutor and the learned counsel for the accused. Perused the oral and documentary evidence and the record on hand. Following Points are formulated for consideration:
1. Whether the prosecution has proved beyond all reasonable doubt, the accused, in between 15.5.2015 to 2.7.2015 under the guise of love affairs and roaming around CW2/Victim girl aged 16 years, who was the minor daughter of CW1 and CW3 and inspite of sending CW2 on coming to know about the love affairs to Bommasandra, Mulabagilu Taluk, Kolar District i..e, the place of grand mother of CW2, you the accused without stopping it, 5 Spl CC No.21/2017 came to the house of the grandmother of CW2 and kidnapped her from her legal guardian and induced CW2 of marriage with him with an intent that she would be seduced or forced to have illicit sexual intercourse with him, thereby the accused have committed an offence punishable under Sec.366 of IPC?
2) Whether the prosecution has proved beyond all reasonable doubt that, the accused on the same date, time and place after kidnapping CW2/victim girl, took her to the building belonging to CW7-Shekar Reddy, located at 4th Floor in Naganathapura, Bangalore, by taking it on rent and kept CW2 in the said house and got marriage with her, with a sexual intent, knowing that she was 16 years of age and a child, thereby the accused have committed an offence punishable under Sec. 10 of Prohibition of Child Marriage Act, 2006 ?
3) Whether the prosecution has proved beyond all reasonable doubt that, the accused on the same date, time and place after kidnapping CW2/victim girl, took her to accused after kidnapping CW2, took her to the building belonging to CW7-Shekar Reddy, located at 4th Floor in Naganathapura, Bangalore, by taking it on rent and kept CW2/victim girl in the said house and got marriage with her, with a sexual intent, knowing that she was 16 years of age and a child, and after getting married, the accused committed rape on her, against her will, thereby the accused has committed an offence punishable under Sec.376 of IPC?
4) Whether the prosecution has proved beyond all reasonable doubt that, the accused on the same date, time and place after kidnapping CW2/victim girl, took her to accused after kidnapping CW2, took her to the building belonging to CW7-Shekar Reddy, located at 4th Floor in Naganathapura, Bangalore, by taking it on rent and kept CW2/victim girl in the said house and got marriage with her, with a sexual intent, knowing that she was 16 years of age and a child, and after getting married, the accused 6 Spl CC No.21/2017 committed aggravated penetrative sexual assault on her, repeatedly, against her will, thereby, the accused has committed an offence as defined under Sec.5(l) of POCSO Act, 2012 and punishable under Sec.6 of POCSO Act, 2012?
5) What Order?
8. My findings on the above points are as under:
Point Nos.1 to 4: In the NEGATIVE Point No.5: As per the final order, for the following:
REASONS
9. POINT NOS.1 TO 4:- As these Points are inter- linked to each other, they are taken up for common discussion to avoid repetition of facts. It is the specific case of the prosecution that, "The accused, in between 15.5.2015 to 2.7.2015 under the guise of love affairs and roaming around CW2/Victim girl aged 16 years, who is the minor daughter of CW1 and CW3 and inspite of sending CW2/victim girl to Bommasandra, Mulabagilu Taluk, Kolar District i..e, the place of grand mother of CW2, on coming to know about the love affairs to the accused without stopping it, came to the house of the grandmother of CW2 and kidnapped her from her legal guardian and induced CW2 of marriage with him with an intent that she would be seduced or forced to have illicit sexual intercourse with the accused and took her [CW2/victim girl] to the building belonging to CW7-Shekar Reddy, located at 4th Floor in Naganathapura, Bangalore, by taking it on rent and kept CW2/victim girl in the said house and got her marriage, with a sexual intent, knowing that she was 16 years of age and a child 7 Spl CC No.21/2017 after getting her married, the accused committed rape/aggravated penetrative sexual assault/ on her repeatedly knowingly that she was minor and against her will". Hence, the prosecution has to discharge its initial burden and only when it is discharged, the presumption under Secs.29 and 30 of POCSO Act, 2012 can be raised. Therefore, whether the prosecution is able to discharge its burden is a question to be considered on the basis of the available evidence on record. If the prosecution is able to discharge the burden, then the onus shifts on the accused to rebut these presumptions that, he is innocent and he has been falsely implicated. Hence, it is proceeded to consider and evaluate the evidence placed on record by the prosecution whether the prosecution is able to discharge the initial burden to convict the accused.
10. The prosecution has adduced the evidence of the very victim girl [CW2] as PW1 and her father/complainant/[CW1] as PW2 and her mother [CW3] as PW3. All these material witnesses t have spoken about their relationship inter-se between them. PW1/victim girl was studied upto 8th standard and she was aged about 18 years during the year 2015 and she was failed in the 8th standard and her[victim girl] father/CW1/PW2 was car driver and going was going out of the house at 7.30 A.M., and he was retuning back to house in between 9 to 9.30 P.M., in the night and her mother/CW3/PW3 was going to household works and they are residing in their own house. They have identified the accused as, they were residing in the rented house [rented premises] owned by the accused about 8 years back. Hence, they 8 Spl CC No.21/2017 have acquaintance with the accused. They have specifically stated during their chief examination that, during the year 2015, as there was school vacation, the victim girl/Pw1 went to Bommasandra, Mulabagilu Taluk, the native of the mother of PW2. It is specifically stated by PW1 that, she failed in her exams, and her parents-PWs-2 and 3 scolded her and getting disappointed, she went to her grandmother's house at Bommasandra, Mulabagilu and resided there for 2 to 3 days and returned back to her house and her grandmother did not intimated her stay to PWs-2 to 3. After returning back, she [PW1/victim girl] came to know that, her parents had lodged a complaint. Hence, she was taken to the police station. She [PW1/victim girl] stated about her stay at her grandmother's house, because her father and mother scolded her etc. Thereafter, she was taken to the hospital for medical examination and also placed before the Learned Magistrate for recording of her statement under Sec.164 of Cr.P.C She gave the statement as per the say of the police, before the Learned Magistrate. Her [PW1/victim girl] statement recorded by the Learned Magistrate under Sec.164 of Cr.P.C, is at Ex.P1. She denied that she gave statement before the SJPU as per Ex.P2 stating that, "the accused had kidnapped her, and got her marriage and committed rape/aggravated penetrative sexual assault on her, knowingly that she was minor" etc.
11. So, also her [PW1] father [PW2] deposed in connection with the disappearance of his daughter[PW1/victim girl] during the year 2015, as there was school holidays, the victim girl went to 9 Spl CC No.21/2017 his[PW2] mother's house at Bommasandra, Mulabagilu and it was learnt that, from there, she [PW1/victim girl] was missing and complaint was lodged as per Ex.P3. Thereafter, the victim girl intimated about her stay in the house of her friend at Byapalli also. Hence, he [PW2] went there and brought her [PW1] back to his house and enquired the victim girl. The victim girl intimated that, as they [PWs-2 and 3] scolded her and her grandmother also scolded, hence, without intimation, she went away from the house, etc. He has identified his signature on Ex.P4. It is the Spot Mahazar. But, he denied the contents of the same.
12. So, also her [PW1] mother[PW3] has spoken that, the accused had not committed any offence of kidnap of the victim girl; nor he had any physical contact with her [victim girl]. PW3 has also denied that, she has given statement under Sec.161 of Cr.P.C as per Ex.P5 that the accused had committed the offence of kidnap and that he had physical contact with her daughter/ victim girl.
13. PWs-1 to 3 have specifically deposed that, the accused did not commit the offence of kidnap of the victim girl; nor he had marriage and physical contact with her [victim girl]. Hence, these witnesses have totally turned hostile to the prosecution case. But, specifically on their own, PWs-1 to 3 have deposed that, PWs-2 and 3 have performed the marriage of the victim girl with the accused after attaining the age of majority by the victim girl and she is leading martial life with the accused and they [victim girl and the accused] are having a 7 months male child and the accused is 10 Spl CC No.21/2017 looking after the victim girl with due care. These three witnesses are declared as hostile witnesses with due permission of this court, the learned Public Prosecutor put suggestions that, "the accused having acquaintance with the victim girl, kidnapped her and got her marriage and that he committed rape/aggravated penetrative sexual assault on her [victim girl], knowingly that she was a minor" etc. but, they have denied the said suggestions.
14. Therefore, viewed from the materials placed on record, as discussed above, the very victim girl[PW1] and her parents/PWs-2 and 3] have not supported the prosecution case regarding the guilt of the accused that, "he [accused] had kidnapped the victim girl with an intent to compel her for marriage and to have illicit intercourse with her and got her marriage and committed rape/aggravated penetrative sexual assault on her, repeatedly, knowingly that she was minor" etc. Therefore, there is no corroborative and clinching evidence to attract the penal provisions of POCSO Act, 2012 and IPC, against the accused, so as to convict him. Since the material witnesses [PWs-1 to 3] have totally turned hostile to the prosecution case, issuance of summons, warrants to the other charge-sheet witnesses to give their evidence, no purpose would be served. Hence, the evidence of the other charge-sheet witnesses was dispensed with and they were dropped. Thus, the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubt. by discharging the initial burden. Hence, presumption under Secs.29 and 30 of POCSO Act, 2012 to be raised, does not arise. Therefore, benefit of doubt has to be extended in favour of the accused and he is 11 Spl CC No.21/2017 entitled for an order of acquittal. Hence, Point Nos.1 to 4 are answered in the Negative.
15 . The victim girl [PW1] and her parents [PW2 and PW3] have totally turned hostile and not supported the prosecution case. It has come on record that, after attaining the age of majority by the victim girl, the parents of the victim girl have performed the marriage of the victim girl with the accused and they are leading marital life and they both [victim girl and the accused] are having 7 months male child. For this reason, the victim girl and her parents [PWs-1 to 3] have totally turned hostile to the prosecution case and not supported the case of the prosecution. Hence, the victim girl is not entitled for any victim compensation, as provided under law.
16. POINT NO.5:- In the result, I proceed to pass following:
ORDER Acting under Sec.235(1) of Cr.P.C, the accused is hereby acquitted of the offences punishable under Sec.6 of POCSO Act, 2012 and under Sec.376 of IPC and under Sec.366 of IPC and under Sec. 9 of Prohibition of Child Marriage Act.
His bail bond and surety bond stand cancelled.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 13th day of April, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.12 Spl CC No.21/2017
ANNEXURES Witnesses examined for the prosecution:
Pw.1 Victim girl CW2 27.3.2018
Pw.2 Ambrez Pasha CW1 9.4.2018
PW.3 Akila CW3 10.4.2018
Documents marked for the prosecution:
Ex.P1 Statement of PW1/victim girl recorded by the
Learned Magistrate under Sec.164 of Cr.P.C Ex.P1(a) and Signatures of PW1/victim girl P1(b) Ex.P2 Statement of PW1/victim girl given before the SJPU Co-ordinator Ex.P3 Complaint date: 2.7.2015 lodged by PW2 Ex.P3(a) Signature of PW2 Ex.P4(a) Spot Mahazar conducted in the place of the alleged incident Ex.P4(a) Signature of PW2 Ex.P5 Statement of PW3 given before the complainant police under Sec.161 of Cr.P.C Witness examined, documents marked for the accused: NIL [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.13 Spl CC No.21/2017
13.4.18 Accused is present.
Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(1) of Cr.P.C, the accused is hereby acquitted of the offences punishable under Sec.6 of POCSO Act, 2012 and under Sec.376 of IPC and under Sec.366 of IPC and under Sec. 9 of Prohibition of Child Marriage Act.
His bail bond and surety bond stand
cancelled.
[YADAV VANAMALA ANANDRAO]]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.14 Spl CC No.21/2017