Bangalore District Court
The State Of Karnataka vs B.P. Khadar Mohiddin on 5 March, 2020
IN THE COURT OF THE LIII ADDITIONAL CITY CIVIL &
SESSIONS SPECIAL JUDGE
BENGALURU
DATED THIS THE 5th DAY OF MARCH, 2020
-: PRESENT :-
S.H.PUSHPANJALI DEVI, B.A. LL.B.,
LIII Addl. City Civil & Sessions Special Judge,
Bengaluru.
SPECIAL C.C. No. 455/2018
COMPLAINANT : The State of Karnataka
By Ramamurthy Nagar Police Station,
Bengaluru.
[Rep. by Public Prosecutor]
/ VERSUS /
ACCUSED: B.P. Khadar Mohiddin,
S/o Late Pacha Mohiddin,
Aged about 60 years,
R/at Flat No.5, Ist Floor,
H.S.R.Grand Apartment,
Ramamurthy Nagar,
Bengaluru.
[ In Judicial Custody ]
[Rep. by Mr. MCP - Advocate]
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Spl.C C. 455/2018
TABULATION OF EVENTS
1. Date of Commission : 09-11-2017
of Offence
2. Date of Report
: 10-11-2017
of Offence
3. Date of Arrest of : 21-05-2018
Accused
4. Date of Release of
Accused on Bail : Accused is in Judicial Custody
5. Period undergone in
Judicial Custody by : -
Accused
6. Name of the Complainant : Mr. Ganesh.
7. Date of Commencement :
of recording evidence 08-01-2019
8. Date of Closing of :
19-02-2020
Evidence
9. Charges framed : Sections 7 R/w 8 of POCSO
Act, 2012.
10. Opinion of the Judge : As per final Order
(S.H. PUSHPANJALI DEVI)
LIII Addl.City Civil & Sessions Special Judge,
Bangalore.
3
Spl.C C. 455/2018
JUDGMENT
This Charge Sheet is filed by the Police Inspector of Ramamurthy Nagara Police Station, Bengaluru City, against the Accused for the offences punishable under Sections 7 and 8 of POCSO Act, 2012.
2. The brief facts of the case of the Prosecution are that, the Accused was residing in the Flat No. 5 of HSR Grand Apartment near Baldwin School, Ramamurthynagara, Main Road and the minor Victim along with her parents was residing in the Security Room at ground Floor of the same Apartment.
3. On 09-11-2017 at about 8 PM, when the CW1 Ganesh was sleeping in his Room, the minor Victim with other children was playing in the parking area of the Apartment. At that time the Accused came near the minor Victim and touched her Back, Stomach and forcibly kissed her Cheek for 2 to 3 times by way of Sexual Harassment, from which, the minor Victim suffered pain.
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Spl.C C. 455/2018
4. The Complainant is residing in the Basement Room of HSR Grand Apartment, near Baldwin School, Ramamurthy Nagara. The Accused also residing in the same apartment at Flat No.5. On 9/11/2017, when Complainant was sleeping in the house and his daughter CW2 playing along with other children in the parking place. At that time, the Accused came near CW-2, holding her tightly, put his hand into the stomach and back of CW-2, then kissed on her cheek 2 to 3 times and caused Sexual Assault on the minor Victim.
5. Subsequently, on 10-11-2017 CW-1, the father of the minor Victim Sri. Ganesh gave Complaint to Ramamurthy Nagara Police Station against the Accused and case registered in Crime No. 515/2017, for the offence punishable under Section 12 of POCSO Act, 2012.
6. The Accused was arrested by the Police on 22-05-2018, produced before this Court and remanded to Judicial Custody. He was represented by the Counsel.
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Spl.C C. 455/2018
7. The Investigating Officer has conducted investigation and filed Chargesheet against the Accused for the offence punishable under Section 7 R/w 8 of POCSO Act, 2012. This court has taken Cognizance of the said offence and after hearing the arguments of both sides, as primafacie materials are placed against the Accused, proceeded further and Charge has been framed for the offence punishable under Section 7 R/w 8 of POCSO Act, 2012. The same was read over and explained to the Accused, he has not pleaded guilty and claims to be tried.
8. The Prosecution has examined only 3 witnesses out of 10 witnesses, as PWs 1 to 3. The documents are marked as Ex.P-1 to 4, P-1(a) and 2(a) are marked. The learned Public Prosecutor has given up CW 7 and prays for issue of summons to other witnesses. But, considering the evidence of Victim and her parents as they turned hostile, even though other witnesses are examined, it will not serve any purpose, 6 Spl.C C. 455/2018 therefore this Court has rejected the prayer of Public Prosecutor and closed the evidence of Prosecution.
9. Since no Incriminating evidence deposed against the Accused, this Court has dispensed with the Statement under Section 313 of Cr.P.C.
10. Heard, the arguments of learned Public Prosecutor for the State and the learned Counsel for the Accused on merits.
11. The points for my consideration are :
1. Whether the Prosecution proves that on 09-11-2017 at about 8 pm, when minor Victim was playing with other children, the Accused with an intention to cause Sexual Assault touched her Stomach, Back, forcibly kissed her and committed offence punishable under Section 7 R/w 8 of POCSO Act, 2012?
2. What Order?
12. My findings on the above points are as under:-
Point No.1 : In the Negative
Point No.2 : As per final order
for the following
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Spl.C C. 455/2018
REASONS
13. Point No. 1: The Prosecution case alleged against the Accused is Sexual Harassment committed on the minor Victim CW-2 aged about 8 years on 09-11- 2017, when she was playing with Children in the parking area of HSR Grand Apartment. In proof of the said Sexual Harassment, Prosecution is relied on the evidence of Victim is examined as PW-1. She being aged about 10 years, examined before the Court without Oath has deposed relationship with Complainant as a father and CW-3 is her mother. She has explained how a person touched her Stomach and Back and forcibly kissed for 2 to 3 times, when she was playing with Children at parking area at about 8 pm in the month of November of 2017. But, she is clearly said that not able to identify the face of the said person.
14. In the Cross-examination she has deposed on the date of incident, a person came in the Blue Color 8 Spl.C C. 455/2018 Bike, who was not residing in the said Apartment and she had seen him the first time and not aware of about other persons known to him. She had disclosed the incident with his mother at about 9 pm on the same day. According to her, the person who touched and kissed her went away to his house and she do not know who is that person.
15. The Complainant Sri. Ganesh is examined as PW-2. He has admitted the Victim in his daughter and do not know the Accused as well as no Complaint given against to him. But, the Complaint given by him is marked as Ex.P1 and his signature as Ex.P1(a). The Spot Mahazar conducted as per Ex.P2 and his signature is marked as Ex.P2(a). He has shown ignorance about contents of both the Complaint and Mahazar, therefore treated hostile.
16. In the Cross-examination he has denied the Complaint given against the Accused as per Ex.P1 and 9 Spl.C C. 455/2018 Mahazar conducted by the Police at the spot as per Ex.P2.
17. The mother of the Complainant Smt. Sunitha is examined as PW3. She has admitted the Victim is her daughter and the Complainant is her husband, but shown ignorance about the Accused, when shown before the Court and denied Statement given against to him. Therefore, she is also treated hostile and Cross- examined on behalf of Prosecution. In the Cross- examination, she has denied the Sexual Assault caused by the Accused on her minor daughter, as stated before the Police in the Statement marked as Ex.P3.
18. The Prosecution though has alleged Sexual Assault committed by the Accused on the minor Victim, not produced any credible evidence in the proof of the said allegations. The minor Victim who was said to be undergone Sexual Assault by the Accused has not identified him, when shown before the Court. The parents of the Victim also not supported the 10 Spl.C C. 455/2018 Prosecution with respect to the identification of the Accused and also Sexual Assault caused by him on their daughter.
19. The age of the Victim to prove that, she was minor shown in the details of the Date of Birth of Victim issued by the School is marked with Consent as Ex.P4. But, the evidence of Victim itself is creates doubt in proof of Sexual Assault committed by the Accused on her as on 09-11-2017 at about 8 pm. Therefore, the Accused must be given benefit of doubt as Prosecution failed to prove the offence committed by the Accused punishable under Section 7 R/w 8 of POCSO Act 2012. Hence, I answer point No: 1 in the Negative .
20. Point No. 2: In the result, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. Accused B.P. Khadhar Mohiddin S/o late. Pacha Mohiddin is hereby acquitted for offences 11 Spl.C C. 455/2018 punishable under Section 7 R/w 8 of POCSO Act, 2012 .
The bail bonds executed earlier by the Accused and Surety are stands cancelled.
(Dictated to the Stenographer, transcript and computerized by her, corrected, signed and then pronounced by me in the open Court today on 5th day of March, 2020.) (S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.
ANNEXURE
1) List of witnesses examined for the Prosecution :
PW.1 Victim PW.2 Ganesha PW.3 Suneetha
2) List of documents marked for the Prosecution:
Ex.P1 Complaint
Ex.P1(a) Signature of PW-2
Ex.P2 Spot Mahazar
Ex.P2(a) Signature of PW-2
Ex.P3 Statement of PW-3
Ex.P4 Details of Date of Birth of Victim given by the
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Spl.C C. 455/2018
School
3) List of Material Objects marked for the Prosecution :
Nil
4) List of witnesses examined for the Accused:
Nil
5) List of documents marked for the Accused :
Nil
6) List of Material Objects marked for the Accused:
Nil (S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.
*** 13 Spl.C C. 455/2018 Accused in Judicial Custody Judgment pronounced in the open court, (vide separate Judgment ) ORDER Acting under Section 235(1) of Cr.P.C. Accused B.P. Khadhar Mohiddin S/o late. Pacha Mohiddin is hereby acquitted for offences punishable under Section 7 R/w 8 of POCSO Act, 2012 .
The bail bonds executed earlier by the Accused and Surety are stands cancelled.
(S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.