Bangalore District Court
State By Kamakshipalya Police vs No.1:- Siddalingappa @ Jayasurya on 25 April, 2019
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the, 25th day of April, 2019.
Present: SMT.R.SHARADA,B.A. M.L
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO.376/2016
COMPLAINANT: State by Kamakshipalya Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED NO.1:- Siddalingappa @ Jayasurya,,
Son of Siddalingayya,
Aged 38 years,
Residing at No.20/1, 2nd Main Road,
Papaiah Garden, Behind Homeopathy Hospital,
K.H.B.Colony, Basaveshwaranagar,
Bangalore-79.
ACCUSED NO.2:- Nagaraju,
Son of Moodalagiriyappa,
Aged 48 years,
Residing at No.100, 5th Cross Road,
In front of Church, Meenakshinagar,
Kamakshipalaya, Bangalore-560079.
[Accused No.1 By Advocate Sri. Suresh.I.
Mugalakki]
[Accused No.2 By Advocate Sri.Pradeep.C.S]
[Accused Nos. 1 and 2 are in the judicial custody]
2 Spl CC No.376/2016
1. Date of commission of From 1.8.2015 to 1.6.2016
offence
2. Date of report of 1.6.2016
occurrence of the offence
3. Date of arrest of accused 02.06.2016. Since the date of their
Nos. 1 and 2
arrest i.e, from 2.6.2016 till the
date, accused Nos. 1 and 2 are in
the judicial custody.
4. Date of commencement of 20.3.2018
evidence
5. Date of closing of 28.1.2019
evidence
6. Name of the complainant Victim girl
7. Offences complained of Secs. 366(A), 376(D) 506 r/w
Sec.34 of IPC and Secs. 4, 5(l), 5(g),
5(j)(ii), 6 of POCSO Act, 2012.
8. Opinion of the Judge Both accused Nos. 1 and 2 are
acquitted.
3 Spl CC No.376/2016
JUDGEMENT
The Police Inspector, Kamakshipalya police station has filed charge-sheet against the accused Nos. 1 and 2 for the offences punishable under Secs. 366(A), 376(D) 506 r/w Sec.34 of IPC and Secs. 4, 5(l), 5(g), 5(j)(ii), 6 of POCSO Act, 2012.
2. The brief facts of the prosecution case is that, accused Nos. 1 and 2, with common intention, have kidnapped the victim girl/CW1 aged 15 years, by persuading her to provide a job to her, prior to 9 to 10 months to 1.6.2016, from the place Basaveshwaranagar, Thimmaih Road, Carmel School, with an intent that she will be compelled or seduced her to illicit intercourse and took her to house NO.100, located in front of Church, 5th Cross Road, Meenakshi Nagar, coming within the limits of Kamakshipalya police station, and committed gang rape on her against her will and also threatened her by giving life threat, if she discloses the said incident to anybody. Thereafter also the accused Nos. 1 and 2 committed gang rape on her on 7 to 8 occasion as a consequence of which she became pregnant of 7 months. Hence, on the basis of the complaint lodged by the complainant who is none other than the victim girl herself, the complainant police have registered a case in Cr.No.264/2016 for the offences punishable under Sec.376D of IPC and Secs. 4 and 6 of IPC and arrested the accused persons and after completion of the investigation, the Investigating Officer has filed charge-sheet against these accused persons for the offences 4 Spl CC No.376/2016 punishable under Secs. 366(A), 376(D) 506 r/w Sec.34 of IPC and Secs. 4, 5(l), 5(g), 5(j)(ii), 6 of POCSO Act, 2012.
3. During the course of investigation the Investigating Officer has arrested the accused Nos. 1 and 2 on 02.06.2016 thereby he was remanded to the judicial custody. Since the date of their remand, the accused Nos. 1 and 2 are in the judicial custody. As per the provisions of Sec.207 of Cr.P.C, copies of the charge-sheet furnished to the accused. Accordingly charge is framed, read over and explained to the accused Nos. 1 and 2, they pleaded not guilty, claims to be tried. Accordingly, the trial is fixed, summons issued to the prosecution witnesses.
4. The prosecution has examined 12 witnesses as PWs-1 to 12 and got marked 18 documents as Exs.P1 to P18, besides marking MO-1 to MO-6. Thereafter Statement of the accused Nos. 1 and 2 recorded under Sec.313 of Cr.P.C. The accused have denied all the incriminating evidence told to them, but they have not examined any witnesses on their behalf and no documents are marked.
5. Heard the arguments of the learned Public Prosecutor and the learned counsels for accused Nos. 1 and 2. On perusal of the oral and documentary evidence, at this stage, following Points arise for my consideration:
1. Whether the prosecution proves that, accused Nos. 1 and 2, with a common intention, have kidnapped the victim girl/CW1 aged 15 years, by persuading her to provide a job to her, prior to 9 to 10 months to 1.6.2016, from the place Basaveshwaranagar, Thimmaih Road, 5 Spl CC No.376/2016 Carmel School, with an intent that she will be compelled or seduced her to illicit intercourse, thereby accused Nos. 1 and 2 have committed the offence punishable under Sec.366 r/w Sec.34 of IPC?
2. Whether the prosecution further proves that, accused Nos. 1 and 2 with a common intention by kidnapping CW1/victim girl from the said place by persuading her to provide a job to her, prior to 9 to 10 months to 1.6.2016, from the place Basaveshwaranagar, Thimmaih Road, Carmel School, with an intent that she will be compelled or seduced her to illicit intercourse and took her to house NO.100, located in front of Church, 5th Cross Road, Meenakshi Nagar, coming within the limits of Kamakshipalya police station, and committed gang rape on her against her will, and thereafter also the accused Nos. 1 and 2 committed gang rape on her on 7 to 8 occasion as a consequence of which she became pregnant of 7 months.
thereby accused Nos. 1 and 2 have committed the offence punishable under Sec.6 of POCSO Act, 2012 r/w Sec.376(D) r/w Sec.34 of IPC?
3. Whether the prosecution further proves that, accused Nos. 1 and 2 threatened CW1/victim girl by giving life threat, if she discloses the alleged incident of gang rape on her, to anybody and thereby the accused Nos. 1 and 2 have committed an offence punishable under Sec.506 r/w Sec.34 of IPC?
4. What Order?
6. My findings on the above points are as under:
Point Nos.1 to 3: In the NEGATIVE Point No.4: As per the final order, for the following:6 Spl CC No.376/2016
REASONS
7. POINT NOS.1 TO 3:- All these Points are inter-linked to each other, hence, they are taken up together for common discussion in order to avoid repetition of facts.
8. During the course of arguments, the learned Public Prosecutor has submitted it has proved the guilt of the accused persons beyond all reasons, because the Magistrate who has recorded the statement of the victim girl under Sec.164 of Cr.P.C has been examined as PW12 before this court and she clearly deposed that, she is having had recorded the statement of the victim girl and she identified the statement as per Ex.P14. Further the doctors who have physically examined the victim girl also supported the case of the prosecution by stating that, they have examined the victim girl and found that, the victim girl was pregnant of about 28 to 32 weeks at the time of her medical examination. PW11 is the Investigating Officer who has taken up the investigation, recorded the statements of the witnesses and finally submitted charge-sheet. The evidence given by these witnesses are very much sufficient to prove the guilt of the accused persons. Of course, in this case, the victim girl has not been secured by the prosecution, but, only on this ground, the other evidence of the prosecution cannot be neglected. With this, the learned Public Prosecutor prays to convict the accused Nos. 1 and 2 in the interest of justice and equity.
7 Spl CC No.376/20169. Per contra, the learned counsels for the accused Nos.1 and 2 submitted that the prosecution has miserably failed to prove the guilt of the accused beyond all reasonable doubt, because CW1 who is the complainant as well as the victim girl of this case has not been traced out by the prosecution till date, thereby her evidence is not yet recorded before the court. The circumstantial witnesses i.e., CWs-6, 7 and 8 have also not secured by the prosecution and their evidence not recorded in this case before this court. Only on this count, the court can come to the conclusion that, the prosecution has failed to prove the guilt of the accused persons, thereby can pass acquittal judgement. Further the learned counsels submitted that, some of the witnesses examined by the prosecution i..,e PWs-1, 2, 3 and 4 are the spot mahazar and seizure mahazar witnesses who have not all supported the case of the prosecution except recognizing their signatures on the Spot Mahazar as per Ex.P1 and Seizure Mahazar as per Ex.P3. Therefore, their evidence is no way helpful to the prosecution case. The doctors who have examined the accused persons as well as the victim girl have deposed before the court according to their duties discharged. PW11 is the Investigating Officer who deposed before the court with regard to the investigation done by him and also filing of the final report, but, this witness has not given any proper explanation for having misquoted the vehicle number in the Seizure Mahazar as per Ex.P3. The contents of Ex.P3-Seizure Mahazar and also the photographs furnished by the prosecution as per Exs.P16 and 17 are not tally with each other, thereby the seizure of the vehicle allegedly taken by the accused persons along with the victim girl to 8 Spl CC No.376/2016 the alleged spot of incident is not proved by the prosecution beyond all reasonable doubt. On this count also, the accused persons are entitled for acquittal. Further the learned counsels submitted that, PW12 is the Learned Magistrate who recorded the statement of the victim girl as per Ex.P14, but, it is settled position of law that, the statement recorded under Sec.164 of Cr.P.C is not substantive evidence and it can be used only to corroborate or contradict that evidence. In the present case on hand, since the prosecution has failed to secure the presence of the victim girl before this court as well as material circumstantial witnesses, no corroborative evidence can be found as required under Law. In this context, the learned counsels relied on the decisions reported in 2006 Cri.L.J4813 held in between T.Diwakara and Ors. Vs. State of Karnataka and AIR 1960 Supreme Court 490 held in between State of Delhi Vs. Shri Ram Lohia. Basing on these decisions as well as the evidence placed before this court, the learned counsel for the accused persons submitted that, the prosecution has failed to bring home the guilt of the accused Nos. 1 and 2 and hence, the accused persons are entitled for acquittal. With this, the learned counsels for the accused Nos. 1 and 2 pray to acquit the accused persons in the interest of justice and equity.
10. I have perused the oral and documentary evidence furnished by the prosecution before this court. The prosecution in order to prove its case has examined as many as 12 witnesses, out of PW1 is the panch witness to Ex.P2. PW2 is the witness to Seizure mahazar as per Ex.P3, PW3 is also witness to the seizure mahazar as per Ex.P3, PW4 is witness to the spot mahazar as per 9 Spl CC No.376/2016 Ex.P2, PW5 is the doctor who examined the accused Nos. 1 and 2 of this case, PW6 is the Head constable, PW7 is the WPC, PW8 is the lady doctor who examined the victim girl, PW9 is the PSI, Pw10 is also the lady doctor who conducted Radiology examination of the victim girl, PW11 is the Investigating Officer of this case and PW12 is the Learned Magistrate before whom the victim girl of this case has given her statement under Sec.164 of Cr. P.C.
11. Now coming to the evaluation of the evidence given by the prosecution witnesses, I would like to take up the evidence of PW1- Jagadish. In his evidence before the court during his chief examination evidence, he has deposed that, the police had not called him for panchanama. As accused No.2 of this case is his friend and he came to know that accused No.2 was arrested, he himself went to the police station. There the police have obtained his signature. This witness has identified his signatures on Exs.P1 and P2 which are the Notice and Spot Mahazar respectively, as per Exs.P1(a) and P2(a). The police had called him to the spot, and they have not conduced the mahazar of the spot as shown by the victim girl. He do not know the contents of Ex.P2. At this stage, the learned Public Prosecutor prayed this court to treat this witness as hostile and to subject him for cross-examination. In his cross- examination, this witness has denied all the suggestions put to him that, on 1.6.2016 in between 12.30 to 1.45 P.M., the Investigating Officer called him to Meenkashinagar, 5th Cross, to house No.100, ground floor, situated in front of the Church and to be pancha and he agreed for the same and on the spot the police have given Notice as per Ex.P1 and as per the spot shown by the victim girl, 10 Spl CC No.376/2016 the Investigating Officer has conducted spot maahzar as per Ex.P2 and he has put his signatures. Further he has also denied that, even though the Investigating Officer has conducted spot mahazar in his presence, but he is deposing against to Exs.P1 and 2.
12. PW2-Dinesh and PW3-Rakshit are the witnesses to Seizure Mahazar. In their evidence before the court during their chief examination evidence, Seizure Mahazar was confronted to them and they have identified their signatures on the Seizure Mahazar which is marked as Ex.P3 and their signatures are marked as Ex.P3(a) and Ex.P3(b) respectively. About 2 years back to the date of these witnesses giving evidence before the court that when they had gone to Basaveshwara police, at that time, the police have obtained their signatures on Ex.P3. They do not know the contents of Ex.P3 and these witnesses were not shown any victim. They have not seen the accused persons. They have not identified the accused persons in the accused platform located in the court hall. At this stage, the learned Public Prosecutor prayed this court to treat these witnesses as hostile and to subject them for cross-examination. In their cross-examination, these witnesses have denied all the suggestions put to them that, on 3.6.2016, KHB Colony, Homeopathy colony, 2nd Main Road, Near House No.20:1, the police have conducted Mahazar and these 2 witnesses were also present there and the accused persons were also present, and the vehicle bearing Registration No.KA-02-JH-9374 TVS Excel was shown to him and the said vehicle was seized by the police and they have signed on Ex.P3. They have further denied that, although they knew all the facts, they are deposing falsely as they have 11 Spl CC No.376/2016 compromised with the accused persons. They have also further denied that, though they have seen the accused, but, they are deposing falsely before the court that they do not know the accused.
13. PW4-Nagarajshetty, is a witness to the spot mahazar as per Ex.P2. In his evidence before the court during his chief examination evidence, he was confronted with Ex.P2-Spot Mahazar and he has identified his signature on Ex.P2 as per Ex.P2(b). About 2 years back to the date of giving his evidence, when he had gone to Basaveshwaranagar police station, the police have obtained his signature on Ex.P2, but, he do not know the contents of Ex.P2 and no maahzar was conducted in his presence and he do not know anything about this case. At this stage, the learned Public Prosecutor prayed this court to treat this witness as hostile and to subject him for cross-examination. In his cross- examination, this witness has denied all the suggestions put to him that, on 1.6.2016, the police have conducted Mahazar as per Ex.P2 at Meenkashinagar, 5th Cross, to house No.100, ground floor. He has also denied that there the victim girl and Jagadish were also present and the victim girl had shown the spot. Even he has denied, by knowing the contents of Ex.P2, he had signed to Ex.P2. Further he has denied that, inspite of knowing all the facts, he has compromised with the accused and he is deposing falsely before the court.
12 Spl CC No.376/201614. On perusal of evidence of PW-1 to 4, there is no whisper against the accused that he having had committed the offences leveled against him. Though the learned Public Prosecutor subjected these witnesses for lengthy cross-examination but failed to elicit any single evidence from these witnesses in his favour. Of course, these witnesses are not cross-examined by the defence counsel. But considering the chief evidence of the prosecution I hold the prosecution failed to elicit any evidence so that to prove the guilt of the accused hence, I find the evidence of these witnesses is not helpful to the prosecution to link the accused with the alleged crime.
15. PW5-Dr.Dileep Kimar.K, Asst. Professor, Dept. of Forensic Medicine, Victoria Hospital, Bangalore. In his evidence before the court during his chief examination evidence, he has deposed that, on 3.6.2016 on request of Basaveshwaranagar police inspector, he has examined accused Nos. 1 and 2. He has taken consent from accused Nos. 1 and 2 before examination. On genital examination, he found that, accused Nos. 1 and 2 are capable to have sexual intercourse and he has collected the articles from both accused Nos. 1 and 2 and they are marked as MOs-1 to 6. He has issued Medical Certificates of accused Nos. 1 and 2 as Exs.P4 and P5 respectively and his signatures as Exs.P4(a) and P5(a). He has identified accused Nos.1 and 2 in the court hall. This witness has been examined by the learned counsel for the accused No.1. In his cross-examination, this witness has denied that, accused Nos. 1 and 2 were not produced before him, as stated by him in the chief examination. He has also denied that, he created Exs.P4 and P5 13 Spl CC No.376/2016 upon the instigation of the police officer and handed over to him. He has also denied that, he has not collected MOS-1 to 6 as stated by him in the chief examination. He has also denied that, he is deposing falsely against the accused in order to help the police officer. The accused No.2 has adopted the cross-examination of learned counsel for the accused No.1. Hence, this witness has performed his statutory duties by conducting medical examination of accused Nos. 1 and 2 and issuing Medical Reports in that regard.
16. PW6-Chandra is the Head Constable who deposed about the court that, on 2.6.2016, the Police Inspector had instructed him and CW17 to trace out 2 accused persons. Accordingly, he along with CW17 went to Kamakshipalya, Sharada Colony, Meenakshinagar and searched for the accused. He knows accused No.2 earlier as because accused No.2 had kept a Paanipur shop in Basaveshwara nagar, Sharada Colony. Likewise, accused No.1 had also kept a Bhelpuri shop near Carmel School. He apprehended accused No.2 in Sharada Colony and accused No.1 in Papaiah Garden and produced both accused Nos. 1 and 2 before the Police Inspector and CW17 has given Report in this regard. He has given statement. He has identified the accused persons before the court as the persons whom he had apprehended. This witness was cross-examined by the learned counsel for the accused No.1. In his cross-examination, this witness has stated that, Police Inspector had not given the photos of the accused, because, he was knowing the accused persons. In this case he has not 14 Spl CC No.376/2016 given any Report but the ASI has given the Report. He has denied the suggestion that, he has not apprehended accused No.1. He has also denied that, as per the say of the Police Inspector, he is deposing against the accused persons. In his cross-examination on behalf of the learned counsel for the accused No.2, this witness has denied that, he has apprehended the accused No.2 only because he was knowing accused No.2 and produced him before the Police Inspector. Hence, this witness has performed his statutory duties by apprehending accused Nos. 1 and 2 of this case and producing them before the Police Inspector of the complainant police station.
17. PW7-Kavitha Bai, is the WPC who deposed before the court that, on 7.6.2016, as per the instruction of the Police Inspector, she went to KC General Hospital and collected the sealed articles pertaining to the victim girl and brought them and produced before the Police Inspector. Accordingly she has given Report in that regard as per Ex.P6 and her signature is as per Ex.P6(a). She had seen the victim girl in the police station. This witness has been examined by the learned counsel for the accused No.1. In her cross-examination, she has denied that, she had seen the victim girl in the police station and that she had not gone to the hospital and collected the sealed articles. She has also denied by listening to the words of the Investigating Officer, she is deposing falsely and given a false Report. Hence, this witness has performed her statutory duties by collecting the sealed articles of the victim girl of this case from the concerned hospital and 15 Spl CC No.376/2016 producing them before the Police Inspector of the complainant police station.
18. PW8-Dr.Amrutha Prabhu, Consultant, OBG, KC General Hospital, Bangalore has deposed before this court that on 1.6.2016 at 4.45 P.M., she has examined the victim girl sent by Basaveshwarangar police sent through WPC with the history of kidnap ad rape by one Jayasurya and also his friend by name Nagaraj repeatedly, putting her under threat. The victim girl has stated that her parents expired in Gas exposure and her grandmother is bed ridden, thereby she has taken the consent of the victim girl for medical examination. She examined the victim girl and found that the victim girl was conscious, alert and oriented. On general examination, the victim girl found normal and no external injuries or mark. Further on genital examination, the victim girl was pregnant for about 28 to 32 weeks. Featel heart sound was heard. Hymen was not intact. She collected the specimens of the victim girl. She sent the victim girl for age estimation for the Radiologist and Dentist. According to the examination, the victim girl was aged around 15 years. The Radiological Report of the victim girl is marked as Ex.P7 and the letter given to the Police Inspector dated: 15.6.2016 is marked as Ex.P8 and her signature is marked as Ex.P8(a). This witness has been cross-examined by the learned counsel for the accused No.1. In her cross-examination, she has admitted that, Ex.P7 do not bear her signature. She has denied the suggestion that, the police have not brought the victim girl before her for any kind of examination. She has further denied that, as the request/say of 16 Spl CC No.376/2016 the police, she is deposing falsely against the accused. Hence, this witness has performed her statutory duties by examining the victim girl .
19. PW9-Y.V.Siddalingaiah,PSI has deposed before the court that, on 2.6.2016, CW18 had instructed him to trace out and apprehend the accused persons of this case, accordingly, himself and CW16 went in search of accused persons and after getting information that the accused persons were at house No.100, Meenakshinagar, Kamakshipalya, they went to the said house and apprehend the accused persons and produced them before the Police Inspector and he has given Report in that regard as per Ex.P9 and his signature is marked as per Ex.P9(a). He has identified the accused persons before the court as the persons whom he had apprehended. This witness was cross-examined by the learned counsel for the accused No.1. In his cross- examination, this witness has stated that, Police Inspector had not given the photos of the accused, because, he was knowing the accused persons. He has denied the suggestion that, he has not apprehended accused No.1. He has also denied that, there is no connection between accused No.1 and this case. In his cross- examination on behalf of the learned counsel for the accused No.2, this witness has denied that, even though there is no connection between accused No.2 and this case, he has apprehended the accused No.2 at the instance of his higher officers. Hence, this witness has performed his statutory duties by apprehending accused Nos. 1 and 2 of this case and producing them before the Police Inspector of the complainant police station.
17 Spl CC No.376/201620. PW10-Dr.Vijayalakshmi, Professor and HOD, Oral Medicine and Radiology, Victoria Hospital, Bangalore, has deposed before the court that, on 3.6.2016, she has examined the victim girl sent by Kamakshipalya police through WPC for age estimation of the victim girl. Ono clinical examination, she has examined the victim girl and opined that, the victim girl is aged 14 plus or minus two years as on the date of examination of the victim girl. Accordingly she has issued Radiological Report of the victim girl as per Ex.P18 and her signature is marked as Ex.P18(a). This witness has been cross-examined by the learned counsel for the accused. In her cross-examination, she has denied that, she has not examined the victim girl and that the police have not brought the victim girl before her for age determination and that she has issued false age certificate of the victim girl. She has also denied that, she is giving false evidence only on the say of the police. Thereby, this witness has performed her statutory duty, by conducting examination for estimating the age of the victim girl and issuing Certificate in that regard.
21. PW11-Kallappa.S.Kharat, Preliminary Investigating Officer-Basaveshwaranagar police station. He has deposed before the court that, on 1.6.2016 at about 11 A.M., in the morning, when he was incharge of the station, at that time, Vijayangar Woman PSI brought the statement of the victim girl and given to him and the same is considered as complaint and he registered it as Cr.No.198/2016 and sent the FIR to the concerned court and to his higher officers. The Complaint is marked as Ex.P10 and his signature is Ex.P10(a). The FIR is marked as Ex.P11 and his 18 Spl CC No.376/2016 signature is Ex.P11(a). After receiving the compliant, he had enquired the victim girl. On the same day, he conducted spot mahazar as per Ex.P2 and his signature is as per Ex.P2(b). On the same day, he sent the victim girl for medical examination and thereafter he sent the victim girl for recording her statement under Sec.164 of Cr.P.C. On 2.6.2016, he deputed CWs-16 and 17 for tracing out the accused Nos. 1 and 2 and on the same day, CWs-16 and 17 traced out the accused persons and produced them before him. Thereafter he took accused Nos. 1 and 2 to his custody and recorded their voluntary statements and conducted seizure mahazar of the vehicle in which they had taken the victim girl. The said seizure maahzar is marked as Ex.P3 and his signature is Ex.P3(c). On the same day, he recorded the statements of Rakshit and Dinesh. He sent the accused Nos. 1 and 2 for medical examination on the same day and after the medical examination, he produced accused Nos. 1 and 2 before this court. He has further recorded the further statement of the victim girl on identification of accused Nos. 1 and 2 by the victim girl. He has identified the material objects. He has identified the accused Nos. 1 and 2 before the court as the persons whom he had arrested. Further he has deposed in his chief examination about his further investigation conducted by collecting the statement of the victim girl recorded under Sec.164 of Cr.P.C as per Ex.P14. As this case was not coming within his jurisdiction, as per the orders of the court, he has transferred this case to Kamakshipalya police station. He has identified the photos of the seized vehicle as per Exs.P16 and P17. This witness has been cross-examined by the learned counsel for the accused No.1. In his cross-examination, 19 Spl CC No.376/2016 this witness has deposed that, CW1/victim girl was not accompanied by her parents at the time of lodging the complaint. As the parents of the victim girl had expired, she was residing with her grandmother. He has not enquired with the grandmother of the victim girl, as her grandmother was in the house. The victim girl had left her school. Further in his cross-examination, by the learned counsel for the accused No.1, this witness has stated that, he has not enquired with the owner of the house wherein the victim girl was working. He has denied that, the victim girl has not given any statement before him. He has also denied that, he has not conducted spot maahzar as per Ex.P2 and that he has created Ex.P2 for the purpose of this case. He has also denied that, inspite of no any criminal act committed by the accused No.1 he has registered a false FIR against accused No.1. Further he has denied that, accused No.1 was running a panipuri shop near the road side and some inimical persons used to demand him to give money, and the accused No.1 had also complained orally. He has also denied that, accused Nos. 1 and 2 are not responsible for the cause of pregnancy of CW1. This witness is also cross- examined by the learned counsel for the accused No.2. In his cross- examination, he has denied that, inspite of no any criminal act committed by accused No.2, he has registered a false FIR against this accused No.2. He has further denied that, as there was requirement of 2 accused persons for this case, he has implicated these 2 accused persons for this case. He has also denied that, the documents annexed to the charge-sheet are all created. Thereby, this witness has performed his statutory duty by conducting preliminary investigation by receiving the complaint, 20 Spl CC No.376/2016 and registering FIR and sending the victim girl to the medical examination, arresting accused Nos. 1 and 2, seizing of the vehicle used for the offence, obtaining the medical reports and transferring of this case file to Kamakshipalya police station.
22. PW12- Smt.Panchakshari, the then Learned Magistrate has deposed before this court stating about the victim girl giving statement before her under Sec.164 of Cr.P.C as per Ex.P14.
23. Considering the evidence of the prosecution witnesses, the prosecution has failed to secure the victim girl and the other circumstantial witnesses like CWs-6, 7 and 8 who found the victim girl having had conceived due to the rape alleged to have been committed by the accused Nos. 1 and 2, was sitting at a place crying, having heard about the agony that she suffered had taken the victim girl to the police station with the assistance of Ganesh-CW8 on the ground that, all those three have left the given address and their whereabouts were not known. Because of this reason, the prosecution is lacking the advantage of the evidence of the victim girl and other circumstantial witnesses in order to bring home the guilt of the accused persons. The court also finds that the vital evidence of the victim girl is deprived of and therefore Under these circumstances it has to look into the evidence of the witnesses examined before the court. The other witnesses I had referred to above are none other than 2 witnesses of the spot mahazar and 2 witnesses of seizure mahazar, police personnel for the reason he had been deputed who traced and produced the 21 Spl CC No.376/2016 accused Nos. 1 and 2 before the Investigating Officer and the evidence of the medical officers and the evidence of the Magistrate who recorded the statement of the victim girl under Sec.164 of Cr.P.C. Out of these witnesses, the evidence of the Medical Officers, the evidence of the Magistrate and the evidence of the Investigating Officer calls for evaluation to the extent that is required. PW8 is the Medical Officer. In her evidence before the court, she deposed to had examined the victim girl on 1.6.2016 and found that the victim girl was pregnant of about 28 to 32 weeks and further stated that, she was given the history that victim girl was in scapegoat of the criminal acts of one Jayasurya and his friend. But, this witness has not stated as to who gave the names of these accused persons as offenders. Even this witness in her Medical Report as per Ex.P8 also has not stated as to who gave the name of accused No.2, because the victim girl knew only the name of accused No.1 and referred the other offender only as a friend of accused No.1 who also committed crime against the victim girl. However, the evidence proves that the victim girl was subjected to aggravated penetrative sexual assault by 2 persons.
24. PW12 was the Magistrate before whom the victim girl stated to had made statement under Sec.164 of Cr.P.C. In the evidence of this witness, she deposed to had recorded the statement of the victim girl as per Ex.P14 after following the procedure under Sec.164 of Cr.P.C. In the statement also, I find that the victim girl stated to had revealed that this accused No.1 by making some false promise subjected her to aggravated penetrative 22 Spl CC No.376/2016 sexual assault and that accused No.2 also committed the similar sexual assault as a result of which the victim girl became pregnant.
25. PW11 is the Investigating Officer deposed to the registering of the crime and filing of the charge-sheet after completion of the investigation.
26. Though the evidence of the Doctor and the Magistrate disclose that, the victim girl had made statement before them connecting these two accused about the sexual assault she underwent, but in the absence of the evidence of the victim girl herself, the hearsay evidence of the Medical Officer and the Magistrate cannot be read as substantive evidence without corroboration of the evidence of the victim girl and without subjecting the victim girl to the test of cross-examination to ascertain as to what she has made before the Doctor and the Magistrate were true version or not. Without this, I find that there is no need for saying in detail to the evidence of the Investigating Officer and hold that the prosecution has failed to prove the guilt of the accused persons beyond all reasonable doubt. Therefore, in the decisions relied upon by the learned counsel for the accused reported in 2006 Cri.L.J4813 held in between T.Diwakara and Ors. Vs. State of Karnataka and AIR 1960 Supreme Court 490 held in between State of Delhi Vs. Shri Ram Lohia are aptly applicable to the facts of the case on hand. Under these circumstances and due to lack of evidence and also as per the discussions made by me herein above, I hold that, 23 Spl CC No.376/2016 accused Nos. 1 and 2 are entitled for an order of acquittal. With these observations, I answer Point Nos.1 to 3 in the Negative.
27. POINT NO.4:-:- In view of my findings on Point Nos.1 to 3 above, I proceed to pass the following:
ORDER Acting under Sec.235(1) of Cr.P.C, I hereby acquit accused Nos. 1 and 2 of the offences punishable under Sec.366 r/w Sec.34 of IPC, Sec.6 of POCSO Act, 2012 r/w Sec.376(D) of IPC r/w Sec.34 of IPC and Sec.506 r/w Sec.34 of IPC.
MOs-1 to 6 being worthless are ordered to be destroyed after the appeal period is over.
[Dictated to the Stenographer directly on the computer, corrected carried out and then pronounced by me in the open court on this the 25th day of, April 2019] [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.24 Spl CC No.376/2016
ANNEXURES:
Witnesses examined for the prosecution:
PW.1 Jagadish CW3 20.3.2018
PW.2 Dinesh CW5 29.6.2018
PW.3 Rakshit CW4 29.6.2018
PW.4 Nagarajshetty CW2 29.6.2018
PW.5 Dr.Dileep Kumar.K CW11 23.7.2018
PW.6 Chandra CW16 18.8.2018
PW.7 Kavitha Bai CW13 29.9.2018
PW.8 Dr.Amrutha Prabhu CW10 11.10.2018
PW.9 Y.V.Siddalingaiah CW17 20.12.2018
PW.10 Dr.Vijayalakshmi CW12 21.1.2019
PW.11 Kalappa.S.Kharat CW18 28.1.2019
PW.12 Smt.Panchakshari Addl. 8.4.2019
Witness
Documents marked for the prosecution:
Ex.P1 Notice to Panchayatadars
Ex..P1(a) Signature of PW1
Ex.P1(b) Signature of PW11
Ex.P2 Spot Panchanama
Ex.P2(a) Signature of PW1
Ex.P2(b) Signature of PW4
Ex.P2(c) Signature of Pw11
Ex.P3 Seizure Panchanama
Ex.P3(a) Signature of PW2
Ex.P3(b) Signature of PW3
Ex.P3(c) Signature of PW11
25 Spl CC No.376/2016
Ex.P4 Medical Certificate of accused No.1
Ex.P4(a) Signature of Pw5
Ex.P4(b) Signature of PW11
Ex.P5 Medical Certificate of accused No.2
Ex.P5(a) Signature of Pw5
Ex.P5(b) Signature of PW11
Ex.P6 Report given by PW7 regarding collecting of the
sealed articles of the victim girl and producing them before the Police Inspector of the complainant police station Ex.P6(a) Signature of PW7 Ex.P7 MLC Report of the victim girl/CW1 Ex.P8 Letter to the Police Inspector of the complainant police station Ex.P8(a) Signature of PW8 Ex.P8(b) Signature of PW11 Ex.P9 Report given by PW9 regarding apprehending of the accused Nos. 1 and 2 and producing them before the Investigating Officer of the complainant police station Ex.P9(a) Signature of PW9 Ex.P9(b) Signature of Pw11 Ex.P10 Complaint given by the complainant/victim girl/CW1 dated: 1.6.2016 to the complainant police Ex.P10(a) Signature of Pw11 Ex.P11 FIR Ex.P11(a) Signature of PW11 Ex.P12 Voluntary statement of accused No.1 26 Spl CC No.376/2016 Ex.P12(a) Signature of PW11 Ex.P13 One Photograph Ex.P14 Statement of the victim girl/CW1 given before the Learned Magistrate under Sec.164 of Cr.P.C Ex.P14(a) Signature of PW11 Ex.P15 Report given by CW15-Hanumanthappa-Police constable Ex.P15(a) Signature of CW15 Ex.P15(b) Signature of PW11 Exs.P16 & P17 2 photos of the vehicle Ex.P18 Radiology Report of the victim girl Ex.P18(a) Signature of PW10 Material Objects marked for the prosecution:
MO-1 Green colour Underwear MO-2 Pubic hair of accused No.1 MO-3 Blood sample MO-4 Blue colour Underwear MO-5 Pubic hair of accused No..2 MO-6 Blood sample
Witness examined, documents, MOs marked for accused Nos. 1 and 2: NIL [R.SHARADA] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.27 Spl CC No.376/2016
25.4.2019 Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(1) of Cr.P.C, I hereby acquit accused Nos. 1 and 2 of the offences punishable under Sec.366 r/w Sec.34 of IPC, Sec.6 of POCSO Act, 2012 r/w Sec.376(D) of IPC r/w Sec.34 of IPC and Sec.506 r/w Sec.34 of IPC.
MOs-1 to 6 being worthless are
ordered to be destroyed after the
appeal period is over.
[R.SHARADA]]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.28 Spl CC No.376/2016