Bangalore District Court
The State Of Karnataka vs Vinoda on 11 December, 2017
IN THE COURT OF THE L ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
Dated this the 11th Day of December 2017
- : PRESENT: -
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
Bangalore
SPECIAL C.C. No. 379/2014
COMPLAINANT:
The State of Karnataka,
By Malleshwaram Police Station,
Bangalore.
[Public Prosecutor-Bangalore]
/VERSUS /
ACCUSED:
Vinoda,
S/o. Late Manjunath @ Ramaiah, 21 years,
R/at. Near Jnana Teja School,
Mathikere, Yeswanthapura,
Bengaluru.
[By Sri.M.C.P.-Advocate]
1 Date of commission of offence 13-03-2012
2 Date of report of occurrence 15-03-2012
3 Date of arrest of Accused 26-03-2012
Date of release of Accused 04-08-2012
Period undergone in custody 08 days, 4 months
by Accused
2 Spl.C.C.No.379/2014
4 Date of commencement of evidence 08-11-2012
5 Date of closing of evidence 14-06-2017
6 Name of the complainant Leelavathi
7 Offences complained of Section 366-A, 343
& 376 of IPC
8 Opinion of the Judge Accused is
acquitted
9 Order of Sentence As per the
final order
JUDGMENT
This charge sheet filed by Police Inspector, Malleshwaram Police Station-Bangalore against the accused for the offences punishable under Section 363, 343, and 376 of I.P.C.
2. Since it is a case of kidnap of minor girl, as such the name of the victim girl is no where shown in the course of judgment as mandated under Section 227(A) of Cr.P.C. However her name is referred to as ' victim girl ' wherever her name is necessary.
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
The accused is the resident of Jnana Teja School, Matthikere, Yeswanthapura, Bengaluru, the victim girl is the resident of 5th Cross, 5th Main, Malleshwaram, Bengaluru and 3 Spl.C.C.No.379/2014 was studying in 2nd PUC at Maharani Lakshmi Ammanni College, Malleshwaram and was aged about 17 years. The accused always used follow the victim girl near her college and near her tuition. On 13-03-2012 at about 01.30 p.m., the accused induced the minor victim girl-Cw.3 over phone No. 9741551487 through mobile phone No.9620157512 and called her to 5th Cross, Malleshwaram near play ground, when she came there, he kidnapped her and taken her to Hosur at Tamil Nadu and kept her in a hotel-Mothers Residency Lodge at Hosur by way of wrongful confinement and on 14-03-2017 he has taken her to Krishnagiri town at Tamil Nadu and confined her till 18-03-2012 at M.G.M. Palace Lodge-Krishnagiri and thereafter again he took the victim girl to M.G.M. Palace Lodge at Krishnagiri, Tamil Nadu and kept her there on 20-03-2012 and 21-03-2012 and committed forcible sexual intercourse with the victim girl against her will and wish and thereafter brought her to Bengaluru, left her near her house. Due to missing of victim girl, her mother lodged complaint and expressed her doubt against the accused. The police registered case against accused on the basis of complaint lodged by Cw.1-the mother of 4 Spl.C.C.No.379/2014 victim girl for the offence punishable under Section 363 of IPC, after recording the statement of victim girl, the police inserted the offences punishable under section 343 and 376 of IPC against accused.
4. The Investigation Officer has investigated the same and filed charge sheet against accused for the offences punishable under Section 363, 343 and 376 of IPC. Thereafter, after filing charge sheet, as usual the accused appeared before the Court. The committal Court furnished copy of charge sheet to him as contemplated under Section 207 of Cr.P.C. Since the victim girl is minor, the committal Court passed an order for committing the case to the Hon'ble Principal City Civil and Sessions Judge, Bengaluru, for further proceedings.
5. Initially this case was registered as S.C.No.991/2012 and made over to FTC-XI for disposal. Thereafter this case was transferred to C.C.H-55 and then it was transferred to this Court and registered as Spl.C.C.No.379/2014.
6. After receiving of the record by this Court, as usual the summons was issued to the accused, he has appeared 5 Spl.C.C.No.379/2014 before the Court and was enlarged on bail by executing personal bond and also produced surety. Thereafter, the learned advocate for the accused submitted no arguments before framing charge. On perusal of charge sheet, the learned predecessor in office framed charge in respect of section 366-A, 343 and 376 of IPC, but the facts and circumstances attracts only in respect of office under section 366 of IPC and not under section 366-A of IPC. Hence, the contents of the charge read over and explained to the accused in Kannada. The accused pleaded not guilty and submits crime to be tried. Thereafter the case against accused set down for prosecution evidence.
7. The prosecution in order to establish the guilt of the accused has examined in all 15 witnesses as Pw.1 to Pw.15, got marked 29 documents as Ex.P1 to Ex.P29 and one material object is marked as MO1 and closed its side evidence. In view of available incriminating evidence appeared against the accused, he was examined under Section 313 of Cr.P.C., by recording his statement. The accused denied the alleged incriminating evidence appeared against him. Earlier to that he has complied the provision of section 437-A of Cr.P.C., by 6 Spl.C.C.No.379/2014 executing personal and surety bond. Thereafter arguments heard from both the sides. The learned advocate for the accused relied on the decisions reported in (1) 2005 Cri.L. J. Page 808, (2) 2006 Cri.L. J. Page 2034, (3) 2005 Cri.L. J. Page 2777, (4) 1998 Cri.L. J. Page 1360, (5) 2002 Cri.L. J. Page 3346 and also produced copy of judgment in S.C.No.425/2013 passed by LIII Additional City Civil & Sessions Judge, Bengaluru and the matter is set down for judgment.
8. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that arise for my consideration are as under:-
1. Whether the prosecution has proved beyond all reasonable doubt that on 13-03-2012 at about 01.30 p.m., the accused induced minor victim girl-Cw.3 and kidnapped her at 5th Cross, Malleshwaram, Bengaluru and took her to Hosur at Tamil Nadu and thereby committed the offence punishable under Section 366-A of I.P.C?
2. Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time, place the accused induced Cw.3-the minor victim girl and wrongfully confined her at Hotel Mother Residency Lodge at Hosur, Tamil Nadu and on 14-03-2012 took her to Krishnagiri Town at Tamil Nadu and confined her till 18-
03-2012 at MGM Palace Lodge at Krishnagiri and thereby committed the offence punishable under section 343 of IPC?
7 Spl.C.C.No.379/2014
3. Whether the prosecution has proved beyond all reasonable doubt that on the above said date, time, place, the accused kidnapped Cw.3-the minor victim girl and took her to MGM Palace Lodge at Krishnagiri Town, Tamil Nadu and from 20-03-2012 till 21-03-2012 and committed forcible sexual intercourse with Cw.3-the minor victim girl against her will and wish and thereby committed the offence punishable under section 376 of IPC?
4. What Order?
9. My findings on the above points are as under:-
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: In the Negative.
Point No.4: As per the final orders for the following:
REASONS
10. Point No.1 to 3: As these points are inter-related, hence, I have taken up together for my consideration in order to avoid repetition of facts.
11. Perused the entire record, charge sheet, evidence produced both at oral and documentary and arguments canvassed by the learned advocate for the accused and the learned Public Prosecutor, coupled with relied on decisions. 8 Spl.C.C.No.379/2014
12. In order to prove the alleged offence against the accused the prosecution examined in all 15 witnesses as Pw.1 to Pw.15 got marked 29 documents as Ex.P1 to Ex.P29 and one material object is marked as MO1 and this Court perused the same.
13. As per the prosecution case, Pw.1 is the mother of the victim girl, Pw.2 is the father of the victim girl, Pw.3 is the brother of the victim girl and Pw.10 is the victim girl, Pw.4 to Pw.9 are the Hotel and Lodge Managers, Suppliers and Room Boys, Pw.11 and Pw.12 are the Police personnel, Pw.13 is also an independent witness and Manager of MGM Lodge, Pw.14 and Pw.15 are the doctors. Hence, this Court shall proceed to see whether the available evidence of said witnesses is sufficient for establishing the alleged offences against the accused.
14. In order to establish the alleged offences against accused the prosecution is required to prove that the accused is the resident of Jnana Teja School, Matthikere, Yeswanthapura, Bengaluru, the victim girl is the resident of 5th Cross, 5th Main, Malleshwaram, Bengaluru and was studying in 2nd PUC at 9 Spl.C.C.No.379/2014 Maharani Lakshmi Ammanni College, Malleshwaram and was aged about 17 years. The accused always used follow the victim girl near her college and near her tuition. On 13-03-2012 at about 01.30 p.m., the accused induced the minor victim girl- Cw.3 over phone No. 9741551487 through mobile phone No.9620157512 and called her to 5th Cross, Malleshwaram near play ground, when she came there, he kidnapped her and taken her to Hosur at Tamil Nadu and kept her in a hotel-Mothers Residency Lodge at Hosur by way of wrongful confinement and on 14-03-2017 he has taken her to Krishnagiri town at Tamil Nadu and confined her till 18-03-2012 at M.G.M. Palace Lodge- Krishnagiri and thereafter again he took the victim girl to M.G.M. Palace Lodge at Krishnagiri, Tamil Nadu and kept her there on 20-03-2012 and 21-03-2012 and committed forcible sexual intercourse with the victim girl against her will and wish and thereby committed offences punishable under section 366, 343 and 376 of I.P.C. Hence, this Court shall proceed to see whether the prosecution has succeeded in establishing all the aforesaid ingredients of the alleged offences against the accused beyond all reasonable doubt.
10 Spl.C.C.No.379/2014
15. Before venturing into scan the available materials evidence on record, it is necessary to mention the very definition of offences under Section 366, 366-A, 343 and 376 of IPC.
Section 366 of IPC defines that:
Kidnapping, abducting or inducing woman to compel her marriage, etc-Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, (and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority to any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.
Section 366-A of I.P.C defines that:
Procuration of minor girl-Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine.
Section 343 of IPC defines that:
Wrongful confinement for three or more days.- Whoever wrongfully confines any person for three days, or more, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.11 Spl.C.C.No.379/2014
Section 376 of IPC defines that:
Punishment for rape-(1)Whoever, except cases provided for by sub-section (2), commits rape shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
16. By going through the facts and circumstances, it is just and proper to mention the common contentions of the prosecution with regard to the relationship of victim girl and the complainant. It is not in dispute that Pw.1 and Pw.2 are the parents, Pw.3 is the younger brother of the victim girl. It is also not in dispute that the victim girl was studying 2nd PUC at Maharani Lakshmi Ammanni College-Malleshwaram, at the time of alleged incident. It is also not in dispute that the victim girl and the accused were talking with each other and having knowledge of parents-Pw.1 and Pw.2. With these observations now left with available material evidence on record to consider whether the prosecution proved the alleged offences against the accused beyond all reasonable doubt or not or the defense to probabalises the defense of the accused.
17. By going through the evidence of Pw.1-Leelavathi-the mother of the victim girl, she has deposed in her chief 12 Spl.C.C.No.379/2014 examination that the victim girl is her daughter having age of 17 years at the time of the incident and she is also having one male child by name-Santhosh. The victim girl was studying in 2nd PUC at Lakshmi Maharani Ammanni College, now she is studying at residential school. She came to know that her daughter was having friendship with the accused and she always mingle with her, after coming to know about the said fact, she has advised her daughter not to do such things. On 16-03-2012 the 2nd PUC examination was declared and the college given holidays for study purpose. On 13-03-2012 the victim girl left the house, in order to ascertain her whereabouts, the complainant made a call to her, for that the victim girl told that Vinod is suffering from ill-health and was admitted to hospital, as such she went to see him, but she didn't return home till 04.30 p.m. Again this witness contacted the victim girl over phone, at that time she told that Vinod is in ICU and she will come afterwards, but she didn't return home. After that this witness again tried to contact the victim girl, but her mobile phone was switched off. After that herself and her husband along with her son searched for the victim girl every 13 Spl.C.C.No.379/2014 where, but the victim girl was not traced. On 15-03-2012 she went to the police station and lodged complaint against accused stating that the accused has induced her daughter, who is minor and kidnapped her as per Ex.P1 and her signature is Ex.P1(a). Thereafter the police came to the house, conducted mahazar as per Ex.P2 and her signature is Ex.P2(a). Her husband's friend-Shivaprakash signed the said mahazar. On 26-03-2012 at about 07.30 a.m, the victim girl called this witness over phone and return to home at about 08.00 a.m., and she told that the accused forcibly kidnapped her, confined her in a lodge and raped her. He had taken her in a motor bike to Hosur and thereafter to Krishnagiri and Vellur and kept her in a lodge. But in her cross-examination she clearly turned hostile to the case of prosecution.
18. The accused cross-examined this witness by eliciting some commission and omission and also elicited favourable to the defense stating that she has deposed in her chief examination as tutored by the police and she has also admitted that:
14 Spl.C.C.No.379/2014
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¢£ÁAPÀB13.03.2012 gÀAzÀÄ £À£Àß ªÀÄUÀ¼ÀÄ £ÉÆAzÀ¨Á®Q ªÀÄ£É ©lÄÖ ºÉÆÃVzÀÄÝ DPÉ J°è ºÉÆÃVzÀ¼ Ý ÀÄ JA§ §UÉÎ £À£ÀUÁåªÀÅzÉà «µÀAiÀÄ w½¢gÀ°®è JAzÀgÀÉ ¸Àj. D PÁgÀt £Á£ÀÄ ¥ÉÇðøï oÁuÉUÉ ºÉÆÃV £À£Àß ªÀÄUÀļÀÄ ªÀÄ£É ©lÄÖ ºÉÆÃVzÁÝ¼É CªÀ¼À£ÀÄß ºÀÄqÀÄQ PÉÆr JAzÀÄ PÉýzÉ JAzÀgÉ ¸Àj. £Á£ÀÄ ¥ÉǰøÀjUÉ zÀÆgÀÄ PÉÆqÀĪÁUÀ D zÀÆjUÉ ¸À» ªÀiÁvÀæ ºÁQ PÉÆnÖzÉÃÝ £É. CzÀg° À è K£ÀÄ §gÉ¢gÀĪÀgÀÄ JA§ §UÉÎ w½¢gÀ°®è."
Further she has stated that after lodging of complaint, the police not came near her house and not conducted mahazar and also she has not signed any documents near her house. Further she has deposed that:
"£Á£ÀÄ zÀÆgÀÄ PÉÆlÖ ¸Àé®à ¢£ÀzÀ £ÀAvÀgÀ £À£Àß ªÀÄUÀ¼ÄÀ ªÀÄ£ÉUÉ ªÁ¥À¸ï §A¢zÀÄÝ £Á£ÀÄ DPÉAiÀÄ£ÀÄß «ZÁj¹zÁUÀ ªÀÄ£À¹ìUÉ ¨ÉÃeÁgÁV ¸ÉßûvÉAiÀÄ ªÀÄ£ÉUÉ ºÉÆÃVzÉÝ JAzÀÄ ºÉýzÀ¼ÀÄ. DgÉÆæ £À£ßÀ ªÀÄUÀ¼ÀÄ £ÉÆAzÀ ¨Á®QUÉ AiÀiÁªÀvÀÄÛ J°èUÀÆ MvÁÛAiÀÄ ªÀiÁr PÀgz É ÄPÉÆAqÀÄ ºÉÆÃVgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. DgÉÆæAiÀÄÄ £À£Àß ªÀÄUÀ½UÉ AiÀiÁªÀvÀÆÛ AiÀiÁªÀÅzÉà ¯ÉÊAVPÀ QgÀÄPÀļÀ ªÀiÁrgÀĪÀÅ¢®è ºÁUÀÆ AiÀiÁªÀÅzÉà vÉÆAzÀgÉ PÉÆnÖgÀĪÀÅ¢®è JAzÀgÉ ¸Àj, £À£Àß ªÀÄUÀ¼ÀÄ ªÁ¥À¸ï ªÀÄ£ÉUÉ §AzÀ£ÀAvÀgÀ DPÉAiÀÄ£ÀÄß AiÀĪÀÇzÉà D¸Àv à ÉæUÉ ¥ÀjÃPÉëUÁV PÀgz É ÀÄ PÉÆAqÀÄ ºÉÆÃVgÀĪÀÅ¢®è.
£À£Àß ªÀÄUÀ½UÉ DgÉÆæAiÀÄ ¥ÀjZÀAiÀÄ EgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. £Á£ÀÄ AiÀiÁªÀvÀÆÛ DgÉÆæAiÀÄ ªÉÄÃ¯É ¸ÀA±ÀAiÀÄ ¥ÀlÄÖ AiÀiÁªÀÅzÉà zÀÆgÀ£ÀÄß ¥ÉÇðøÀjUÉ PÉÆnÖgÀĪÀÅ¢®è JAzÀgÉ ¸Àj ."
The above said admission clinches the issue unequivocally points out that whatever she has stated in her chief examination, it is quite contradicts with each other, but no such re-examination made by the prosecution to elicit which is true fact from the mouth of the complainant. Non-elicitation through 15 Spl.C.C.No.379/2014 this witness by the prosecution in the re-examination is absolutely fatal to the case of the prosecution.
19. By going through the evidence of Pw.2-Gururaj, the father of the victim girl, he has also deposed in his chief examination in respect of his daughter-the victim girl went away along with the accused from 13-03-2012 to 26-03-2012 and the complaint was lodged by his wife and on enquiry with his daughter, she has told that the accused has taken her in a bike to Hosur, Krishnagiri and Vellur and wrongfully confined her in Hotel and Lodge and also forcibly had sexual intercourse with her with an intention to marry her. Thereafter she was taken to hospital for medical examination. He has also given letter as per Ex.P3 and his signature is Ex.P3(a). The accused by blackmailing the victim girl that if she refuses to accompany him, he is going to commit suicide and taken her with him.
20. He has also deposed that as per the say of the police he has stated before the Court in his chief examination. Further he has admitted that:
" F zÀÆgÀÄ PÉÆqÀĪÀÅzÀPÉÌ ªÀÄÄ£Àß £À£Àß ªÀÄUÀ¼ÀÄ PÁ¯ÉÃeï£À°è ZÉ£ÁßV NzÀzÃÉ EzÀÝ PÁgÀt £Á£ÀÄ £À£Àß ºÉAqÀw DPÉUÉ ZÉ£ÁßV ¨ÉÊ¢zɪ Ý ÀÅ JAzÀgÉ ¸Àj.16 Spl.C.C.No.379/2014
£ÁªÀÅ £ÀªÀÄä ªÀÄUÀ½UÉ DUÁUÉÎ N¢£À «µÀAiÀÄzÀ°è ¨ÉÊAiÀÄÄwÛzÀÝ PÁgÀt DPÉ vÀÄA¨Á ¨ÉÃeÁgÀÄ ªÀiÁrPÉƼÀÄîwzÀ¼Ý A É zÀgÉ ¸Àj. ¢£ÁAPÀB13.03.2012 gÀAzÀÄ £À£Àß ºÉAqÀw £À£ÀUÉ ¥sÉÆÃ£ï ªÀiÁr £À£Àß ªÀÄUÀ¼ÀÄ ªÀģɩlÄÖ ºÉÆÃVgÀĪÀ «µÀAiÀÄ £À£ÀUÉ w½¹gÀĪÀÅ¢®è. D ¢£À £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß PÀÄlÄA§zÀªg À ÄÀ DgÉÆæ ªÀÄ£É §½ ºÉÆÃV £À£Àß ªÀÄUÀ¼À §UÉÎ AiÀiÁªÀÅzÉà «ZÁgÀ ªÀiÁrgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß ºÉAqÀw ¥ÉÇðøï oÁuÉUÉ ºÉÄÁÃV £À£Àß ªÀÄUÀ¼£ À ÀÄß ºÀÄqÀÄQPÉÆr JAzÀÄ zÀÆgÀÄ ªÀiÁvÀæ PÉÆmïÖzɪ Ý ÀÅ CzÀ£ÀÄß ©lÄÖ AiÀiÁªÀÅzÉà «µÀAiÀÄ ºÉýgÀ°®è. "
Further he has deposed that he has not signed any documents near his house and the police obtained his signature in the police station. He has also admitted that:
"£ÁªÀÅ zÀÆgÀÄ PÉÆlÖ ¸Àé®à ¢£ÀzÀ £ÀAvÀgÀ £ÀªÀÄä ªÀÄUÀ¼ÄÀ ªÀÄ£ÉUÉ ªÁ¥À¸ï §AzÀ¼ÀÄ JAzÀgÉ ¸Àj. DPÉ ªÀģɩlÄÖ ºÉÆÃzÀ PÁgÀtªÀ£ÀÄß £Á£ÀÄ «ZÁj¹zÁUÀ N¢£À «µÀAiÀÄzÀ°è £ÁªÀÅ DPÉUÉ DUÁUÀ ¨ÉÊAiÀÄÄwÛzÝÀ PÁgÀt DPÉ ¨ÉÃeÁgÁV ªÀģɩlÄÖ ºÉÆÃV ¸ÉßûvÉAiÀÄ ªÀÄ£ÉAiÀÄ°èz¼ ÝÀ A É zÀÄ £À£ÀUÉ w½¹zÀ¼A É zÀgÉ ¸Àj. £À£Àß ªÀÄUÀ¼ÀÄ ªÀÄ£ÉUÉ §AzÀ £ÀAvÀgÀ DPÉAiÀÄ£ÀÄß AiÀiÁªÀÅzÉà D¸Àv à ÉæUÉ AiÀiÁgÀÆ PÀgzÉ ÀÄPÉÆAqÀÄ ºÉÆÃVgÀĪÀÅ¢®è. £À£Àß ªÀÄUÀ¼ÀÄ £ÉÆAzÀ ¨Á®QUÉ DgÉÆæ AiÀiÁªÀvÀÆÛ AiÀiÁªÀÅzÉà jÃwAiÀÄ ¥sÉÆÃ£ï ªÀiÁr AiÀiÁªÀÅzÉà vÉÆAzÀgÉ PÉÆnÖgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. oÁuÉAiÀÄ°è £Á£ÀÄ ªÀÄvÀÄÛ £À£ßÀ ºÉAqÀw DgÉÆæ «gÀÄzÀÝ AiÀiÁªÀÅzÉà zÀÆgÀ£ÀÄß PÉÆnÖgÀĪÀÅ¢®è. F ¥ÀæPÀgt À zÀ°è £Á£ÀÄ ¥ÉÇðøÀgÀ ªÀÄÄAzÉ AiÀiÁªÀÅzÉà jÃwAiÀÄ ºÉýPÉ PÉÆnÖgÀĪÀÅ¢®è."
The above said evidence clinches the issue unequivocally points out that it is supported to the defense of the accused and not to the prosecution. Inspite of opportunity given to the prosecution, it has not re-examined this witness to know the truth, whether the evidence given in chief examination is the correct one or the evidence given in the cross-examination is correct one. Non-eliciting the true facts through the mouth of this witness by the prosecution in his re-examination, it is 17 Spl.C.C.No.379/2014 absolutely fatal to the case of the prosecution.
21. By going through the evidence of Pw.3-Santhosh, the brother of the victim girl, he has also deposed that by reiterating the evidence of Pw.1 and Pw.2 in respect of the victim girl leaving the house and her mobile was switched off, they went to the house of accused and enquired with the mother of the accused about the accused and the victim girl and came to know that the accused by receiving the motor bike of one Suresh, taken the victim girl in a bike. He has also deposed that the accused by threatening the victim girl that if she refuse to marry him, he is going to commit suicide and taken her with him.
22. The accused tested the veracity of evidence of evidence of this by eliciting some commission and omission and elicited his defense stating that he has also deposed in his chief examination what ever the police stated him. Further he has deposed that:
" F zÀÆgÀÄ PÉÆqÀĪÀÅzÀPÉÌ ªÉÆzÀ®Ä £À£Àß vÀAzÉ vÁ¬Ä £À£Àß vÀAV £ÉÆAzÀ ¨Á®QUÉ DPÉ ¸ÀjAiÀiÁV NzÀzÃÉ EzÀÝ PÁgÀt AiÀiÁªÁUÀ®Æ ¨ÉÊAiÀÄÄwÛzg ÀÝ ÀÄ JAzÀgÉ ¸Àj. D jÃw ¨ÉÊAiÀÄÄwÛzÀÝ PÁgÀt DPÉ ªÀÄ£ÉAiÀÄ°è AiÀiÁªÁUÀ®Ä ¨ÉÃeÁj¤AzÀ¯ÃÉ EgÀÄwÛz¼ ÀÝ ÀÄ JAzÀgÉ ¸Àj. DPÉ ¨ÉÃeÁj£À°z è ÀÝ PÁgÀt ¢£ÁAPÀB 13.03.2012 gÀAzÀÄ ªÀģɩlÄÖ £À£Àß vÀAV ºÉÆgÀlÄ 18 Spl.C.C.No.379/2014 ºÉÆÃVzÀ¼ Ý A É zÀgÉ ¸Àj. £À£Àß vÀAV ªÀģɩlÄÖ ºÉÆÃzÀ £ÀAvÀgÀ £Á£ÀÄ DPÉAiÀÄ §UÉÎ AiÀiÁgÀ §½AiÀÄÆ «ZÁj¹gÀĪÀÅ¢®è. £À£Àß vÀAV ªÀÄ£É ©lÄÖ ºÉÆÃVzÀÝ PÁgÀt £À£Àß vÀAzÉvÁ¬Ä ¥ÉÇðøï oÁuÉUÉ ºÉÆÃV £À£Àß ªÀÄUÀ¼£ À ÄÀ ß ºÀÄqÀÄQ PÉÆr JAzÀÄ PÉýPÉÆArzÀÝgÀÄ JAzÀgÉ ¸Àj. "
Further he has shown his ignorance about the victim girl that whether she has left the house on her own will or she was forcibly taken by some body. Further it is his evidence that:
"EzÁzÀ ¸Àé®à ¢£ÀzÀ £ÀAvÀgÀ £À£Àß vÀAV ªÀÄ£ÉUÉ ªÁ¥À¸ï §A¢zÀÄÝ £Á£ÀÄ DPÉAiÀÄ£ÀÄß «ZÁj¹zÁUÀ ªÀÄ£ÉAiÀÄ°è ¨ÉÃeÁgÁVvÀÄÛ D PÁgÀt ¸ÉßûvÉAiÀÄ ªÀÄ£ÉUÉ ºÉÆÃzÉ JAzÀÄ ºÉýzÀ¼ÀÄ. DgÉÆæ £À£U À É AiÀiÁªÀvÆÀ Û AiÀiÁªÀÅzÉà jÃwAiÀÄ vÉÆAzÀgÉ PÉÆnÖgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. F ¥ÀæPÀgt À zÀ°è £Á£ÀÄ ¥ÉÇðøÀgÀ ªÀÄÄAzÀÉ AiÀiÁªÀÅzÉà ºÉýPÉ PÉÆnÖgÀĪÀÅ¢®è."
If the above said admitted evidence is taken into consideration, this Court feels to observe that the accused has not committed any offences as alleged against him. Here also the prosecution has not taken any steps to elicit the true facts as to whether the evidence given in his chief examination is correct or the evidence given in his cross-examination is correct by way of re-examination. Non explaining the ambiguity by the prosecution through the mouth of this witness, it is absolutely fatal to the case of prosecution.
23. By going through the evidence of Pw.10-the victim girl, she has deposed that in her chief examination that during 19 Spl.C.C.No.379/2014 the year 2012 she was studying 2nd PUC at Maharani Ammanni College and she used to go to tuition at Vyallikaval. While she was going for tuition, the accused used to follow her and taken her mobile phone number and started to call her often and often through his mobile. He also used to give missed call to her. She has told him that not to disturb her, since she wants to study, even she warned him, but the accused has not stopped calling her over mobile. She has informed the said fact to her parents. Again the accused came near her college and told her that he is loving her. At that time she has told him stating that it is disturbing to her education, but the accused has not stopped demanding her and not stopped to come to college. On 13-03- 2012 at about 01.30 p.m, the accused called her over phone stating that he wants to talk to her urgently, when she went near the accused, he had taken her in a bike stating that within 10 minutes they will return back, but she had taken her towards Hosur side and kept in Mother Residency Lodge and taken her from there on 14-03-2012 to Krishnagiri, where for four days he kept her in a lodge viz., M.G.M. Lodge. On 18-03- 2012 taken her to Velur and kept her there up to 20-03-2012 20 Spl.C.C.No.379/2014 in a farm house and on 20-03-2012 again he brought her to Krishnagiri-M.G.M. Palace at about 06.00 p.m, and on 21-03- 2012 he had taken her to Bengaluru at about 10.30 p.m., every day he had sexual intercourse with her. On 21-03-2012 he had kept her in his friend's house at Hebbal. At that time she forced him to call her mother over phone. The accused while leaving Bengaluru, he has removed the SIM Card from her mobile. On 26-03-2012 he had left her near her house and went away. She came to her house and stated all the facts and circumstances to her parents. She was born on 18-04-1994. The police also seized MO1.
24. The accused tested the veracity of the evidence of this witness by eliciting some commission and omission and also elicited that she has admitted that whatever she has stated in her chief examination only on the say of police and not on her own. Further she has admitted that:
" £Á£ÀÄ ªÀģɩlÄÖ ºÉÆÃUÀĪÀÅzÀPÉÌ ªÀÄÄ£Àß £À£Àß vÀAzÉ-vÁ¬Ä ZÉ£ÁßV «zÁå¨Áå¸À ªÀiÁqÀÄwÛ®è JA§ÄzÁV DUÁUÉÎ ¨ÉÊAiÀÄÄwÛzÀÝgÄÀ . D PÁgÀt CªÀgÀÄ £À£ÀUÉ ¨ÉÊzÁUÀ¯¯ É Áè ªÀÄ£À¹ìUÉ £ÉÆêÁV ¨ÉÃeÁgÁUÀÄwÛvÀÄÛ JAzÀgÉ ¸Àj. D PÁgÀt ¢£ÁAPÀB13.03.2012 gÀAzÀÄ £Á£ÀÄ ªÀģɩlÄÖ £À£Àß ¸ÉßûvÉAiÀÄ ªÀÄ£ÉUÉ ºÉÆÃVzÉÝ JAzÀgÉ ¸Àj. £Á£ÀÄ ªÀģɩlÄÖ ºÉÆÃUÀÄwÛgÀĪÀ «ZÁgÀ £À£Àß vÀAzÉ- vÁ¬ÄUÁUÀ°, ªÀÄ£ÉAiÀÄ°è EvÀgj À UÉ ºÉüÀzÃÉ ºÉÆÃVzÉ.Ý DgÉÆæAiÀÄÄ £À£ÀUÉ ¥sÉÆÃ£ï ªÀiÁr £À£ÀߣÀÄß AiÀiÁªÀvÀÆÛ J°èAiÀÄÆ PÀgz É ÄÀ PÀÉÆAqÀÄ ºÉÆÃVgÀĪÀÅ¢®è.21 Spl.C.C.No.379/2014
¸Àé®à ¢£ÀzÀ £ÀAvÀgÀ £Á£ÀÄ ªÀÄ£ÉUÉ ªÁ¥À¸ï §AzÉ£A É zÀgÉ ¸Àj. £Á£ÀÄ ªÀÄ£ÉUÉ §AzÀ £ÀAvÀgÀ AiÀiÁgÀ §½AiÀÄÆ AiÀiÁªÀÅzÉà «µÀAiÀĪÀ£ÀÄß ºÉýgÀĪÀÅ¢®è,"
Further it is her evidence that the police had not taken her any where for medical examination and she has not given any statement before police. The police also not took her any where. She has also not deposed that she has stated before police that no such criminal act done on her by the accused. Further it is her evidence that:
"£Á£ÀÄ ¥ÉÇðøÀgÀ ªÀÄÄAzÉ DgÉÆæAiÀÄÄ £À£ÀߣÀÄß J°èUÀÆ PÀgzÉ ÀÄPÉÆAqÀÄ ºÉÆÃVgÀĪÀÅ¢®è ºÁUÀÆ DvÀ¤AzÀ £À£U À ÁåªÀÅzÉà vÉÆAzÀgÉ DVgÀĪÀÅ¢®è JAzÀÄ ºÉýzÉ£ Ý A É iÉÄà ºÉÆgÀvÀÄ ªÀÄvÁåªÀÅzÉà «µÀAiÀĪÀ£ÀÄß CªÀgÀ ªÀÄÄAzÉAiÀiÁUÀ° CxÀªÁ £À£Àß vÀAzÉvÁ¬ÄAiÀÄ ªÀÄÄAzÁUÀ° DgÉÆæAiÀÄ «gÀÄzÀÝ AiÀiÁªÀÅzÉà «µÀAiÀÄ £Á£ÀÄ ºÉýgÀĪÀÅ¢®è. ¥ÉÇðøÀgÀÄ £À¤ßAzÀ AiÀiÁªÀÅzÉà ªÀ¸ÀÄÛU¼À £ À ÀÄß d¥sÀÅÛ ªÀiÁrPÉÆArgÀĪÀÅ¢®è. F ¥ÀæPÀgÀt £Àq¬ É ÄvÉAzÀÄ ºÉüÀ¯ÁzÀ ¸ÀªÀÄAiÀÄzÀ°è £À£Àß §½ AiÀiÁªÀÅzÉà ªÉƨÉʯï EgÀ°®è. DgÉÆæAiÀÄÄ £À£ÀߣÀÄß AiÀiÁªÀvÀÄÛ J°èUÀÆ PÀgz É ÀÄ PÉÆAqÀÄ ºÉÆÃVgÀĪÀÅ¢®è, £À£ÀUÉ K£À£ÀÆß ªÀiÁrgÀĪÀÅ¢®è, DvÀ¤AzÀ £À£ÀUÁåªÀÅzÉà vÉÆAzÀgÉ DVgÀĪÀÅ¢®è JAzÀgÉ ¸Àj."
The above said evidence clinches the issue unequivocally points out she has turned hostile to the prosecution in her cross-examination, but the prosecution fails to elicit that whether the evidence given in her examination in chief is correct or in her cross-examination is correct by way of re-examination. Non-elicitation of true facts giving of clarity of ambiguity arises both at chief and cross-examination, it is absolutely fatal to the case of prosecution.
22 Spl.C.C.No.379/2014
25. Here it is worthwhile to emphasis on the decision relied on by the learned advocate for accused reported in 2005 Cri.L.J. Page 808, wherein it is observed that:
"Evidence Act (1 of 1872), Ss.136, 138-Examination of witnesses-Witnesses taking diametrically opposite stand in the cross-examination from what they had stated in examination-in chief-No efforts made by the prosecution to bring on record, by cross-examining them. The facts showing that their statements made in examination-in-chief should be preferred-Their statements made in examination-in-chief cannot be preferred.
Penal Code (45 of 1860), S.304, Par II-Culpable homicide- Proof-Allegations that deceased was wrongfully confined in police station and assaulted by three police constables-He going home on next day-Death after admitted in hospital-Evidence of other police personnel not reliable as they stating exactly opposite in cross-examination to what they had stated in examination-to what they had stated in examination-in-chief-No reliable evidence to show that accused in question wrongfully confined him and caused any specific injury to him-No evidence showing common intention or motive-Accused entitled to acquittal."
Here also no effort is made by the prosecution to bring on record by cross-examination them in respect of witnesses taking diametrically opposite stand in the cross-examination from what they had stated in examination-in chief. Though the facts and circumstances of the above case decision and the facts and circumstances of the case on hand are different one, but the ratio of principles is clearly applicable to the present case on hand. Now left with the available other material evidence on 23 Spl.C.C.No.379/2014 record produced by the prosecution.
26. By going through the evidence of Pw.4- Mahadeshwaran-Room Boy of Krishnagiri-M.G.M. Lodge, he has deposed that in the 3rd month of the same year, the accused came along with a girl to his lodge and taken Room No.24 twice for rent, this witness supplied meals to the accused and he has identified the accused. In the cross-examination the accused tested the veracity of evidence of this witness by eliciting some commission and omission and except denial suggestion, nothing has been elicited favourable to the defense taken by the accused herein. Here if this piece of evidence is taken into consideration, but the prosecution has slept over on producing the victim girl for identification whether the accused accompanied with the victim girl or any other girl. Non making identification through this witness about the victim girl, it is absolutely fatal to the case of the prosecution herein.
27. By going through the evidence of Pw.5-Rajendran- Manager of M.G.M. Palace Lodge, he has also deposed about the accused had taken a room on 14-03-2012 and he stayed there 24 Spl.C.C.No.379/2014 for four days along with a girl, again he had taken the room on 20-03-2012 and stayed for one day in the same room No.24. He has deposed that he is going to identify the girl, but the prosecution through him got produced Ex.P4 to Ex.P7-the documents in respect of Ledger Extract, Receipts pertaining to room taken for rent by the accused. In the cross-examination the accused tested the veracity of evidence of this witness by eliciting some commission and omission, except denial suggestion nothing has been elicited favourable to the defense taken by the accused herein.
28. By going through the evidence of Pw.6-Gopal- Manager of M.G.M.Palace Lodge, he has also deposed about room taken by the accused for rent and vacated on 18-03-2012, again he had taken the room on 20-03-2012 and vacated on 21- 03-2012. He was also accompanied with a girl. Through him Ex.P4 to Ex.P7 are identified and his signature are at Ex.P4(a), Ex.P5(b), Ex.P6(a) and Ex.P7(b). The accused tested the veracity of evidence of this witness by eliciting some commission and some omission, except denial suggestion, nothing has been elicited favourable to the defense taken by the accused herein. 25 Spl.C.C.No.379/2014
29. By going through the evidence of Pw.8-Vinod Babu- Manager-Mothers Residency, he has deposed that on 14-03- 2012 the accused accompanying a girl came to Mothers Residency Hotel and taken room for rent. He has shown his I.D. card, as such they have given room for rent and he had vacated the said room at 06.30 p.m. He has given statement before police. On 27-03-2012 the police along with the accused came to his Hotel and he ad given Hotel Register Extract and receipt as per Ex.P8 and Ex.P9 and his signatures are Ex.P8((a) and Ex.P9(a). The accused tested the veracity of evidence of this witness by eliciting some commission and some omission, except denial suggestion, nothing has been elicited favourable to the defense taken by the accused herein.
30. By going through the evidence of Pw.13-N.Jaya Kumar-Manager-M.G.M. Lodge, he has deposed that the accused came to his lodge-M.G.M., along with a girl and stayed there. He has also given his I.D. card and as such they have given room for rent. He has shown and introduced the said girl as his wife and thereafter the police came and seized Ex.P4 and his signature is Ex.P4(a). The accused tested the veracity of 26 Spl.C.C.No.379/2014 evidence of this witness by eliciting some commission and some omission, except denial suggestion, nothing has been elicited favourable to the defense taken by the accused herein. No doubt it is true that Pw.4 to Pw.6, Pw.8 and Pw.11 who are lodge owners, Mangers, suppliers and room boys of M.G.M. Lodge and Hotel Mothers Residency and identified of the accused that he was accompanied with the girl. But here the complainant and other witnesses denied about the allegations made against accused and turned hostile to the prosecution case. As such, it is the duty of the prosecution to summon the victim girl and identify her through the above said witnesses, whether the victim girl accompanied with the accused or not. Non-making identification of the victim girl through the above said witnesses, it is absolutely fatal to the case of the prosecution herein. Whatever the evidence given by the above said witnesses, it is a formal one and the same is not supported the case of prosecution.
31. By going through the evidence of Pw.7-T.Shiva Prakash, he has deposed that his signature is Ex.P2(c). The police have conducted mahazar at the place, where the accused 27 Spl.C.C.No.379/2014 alleged to have kept the victim girl. In the cross-examination he has admitted that the father of victim girl is his friend. If this piece of evidence is taken into consideration, this Court feels to observe that he is an interested witness and it is quite natural that he has deposed favourable to the father of the victim girl. At this stage this Court feels to observe that the evidence of this witness is a formal one.
32. By going through the evidence of Pw.9-Nikhil Kothari, he has deposed that He is Vodaphone prepaid customer. He has applied for SIM card of Vodaphone. He has also given driving license along with his application. He has identified Ex.P10-driving license and his signature is Ex.P10(a). He came in contact with the victim girl through his friend- Shruthi, said Shruthi is also student of Ammanni Collage, since the victim girl was not having address proof, requested him to give address proof to get a SIM card, for that he has given the same. The accused tested the veracity of evidence of this witness by eliciting some commission and omission. Except denial suggestion, nothing has been elicited favourable to the stand taken by the accused. At this stage, the evidence of this 28 Spl.C.C.No.379/2014 witness is a formal one.
33. By going through the evidence of Pw.14-Dr.Dilip Kumar.K.B., he has deposed that he has issued medical report as per Ex.P19 stating that there is nothing to suggest that the accused is incapable of performing sexual intercourse. His evidence remains unchallenged.
34. By going through the evidence of Pw.15- Dr.R.Leelavathi, she has deposed that she has examined the victim girl on 27-3-2012, collected the articles as per Ex.P26 and her signature is Ex.P 26(a). She has also given final report as per Ex.P27 and her signature is Ex.P27(a), the MLC register extract is Ex.P18 and her signature is Ex.P18(a). In her report she has stated that:
"On examination of the victim girl I found 1) Her external gentile was in normal growth. 2) There was no perinea tear. 3) There was no vaginal tear 4) Hymen was completely rupture 5) No bite marks found on thigh 6) I have collected following specimens 1) Finger nails, 2) Pubic Hairs, 3) Vaginal Swab 4) Orange color panties Sealed the same as per law and sent the same to the police along with my report through WPC 6950 of Malleshwaram P.S."
In her cross-examination except denial suggestion, nothing has been elicited favourable to the defense taken by the 29 Spl.C.C.No.379/2014 accused herein.
35. Further in respect of age factor of the victim girl, on perusal of Ex.P18-the medical report of the victim girl, no such test conducted by the doctor to fix the age of the victim girl as 17 years. Even Ex.P26 only mentioning the age as 17 years, no such test conducted in respect of radiological and ossification examination and dental examination. The accused tested the veracity of evidence of this witness by eliciting some commission and omission and also elicited that in order to fix the age of the victim girl, she has not conducted the above said examinations. Even she has not mentioned how many day was elapsed in respect of hymen tear. According to her 10 days earlier the hymen was torn. At the same time she has admitted that if a girl or a woman does swimming, riding bicycle, playing skating or by gym practice, hymen will automatically torn. Admittedly no such documents placed fro fixing the age of the victim girl as on the date of the alleged incident. The doctor's report does not support to consider the age of the victim girl.
36. The learned advocate for the accused relied on the 30 Spl.C.C.No.379/2014 decision reported in 2006 Crl.L.J. 2034, wherein it had been observed that:
"Penal Code (45 of 1860), Ss. 363, 366-Kidnapping minor-Conviction challenged-Radiological examination confirming age of victim to be 17-Plus, minus 1 year-Evidence revealing that victim had love affair with accused-Difference in statement of father of victim girl and victim about duration of alleged kidnapping/elopement-Victim contradicting about 8 parts of her police statements-Contradictory version of father and daughter-Fact that victim was about 18 years of age and in absence of any other credible evidence, accused entitled to acquittal."
Further in 2003 Crl.L.J.2777, wherein it had been observed that:
"Penal Code (45 of 1860), Ss. 363, 376-Kidnaping and Rape-Proof-Age of prosecurtrix-Determination-Allegations that accused came to house of prosecurtrix in midnight and took her to another place and committed rape against her will- Ossification tests report proving prosecurtrix was more than 18 years of age-But school certificate showing that she was below 16 years of age-No evidence showing as to on what basis and at whose instance the date of birth was written in the school register-Also non-production of original school register in Court- Failure on part of prosecution to prove that prosecurtrix was below 18 years of age-Conviction of accused, not proper."
and also submitted that the ratio of principle is clearly applicable to the case on hand. Perused the decisions cited by the learned advocate for accused and also the facts and circumstances of the case on hand, at this stage this Court feels to observe that the facts and circumstances of the above case decisions and the facts and circumstances of the case on hand 31 Spl.C.C.No.379/2014 are different one, but the ratio of principle is clearly applicable to the present case on hand.
37. Now left with the available material evidence produced by the prosecution through the police personnel by going through the evidence of Pw.11-Srinivas V.T-A.S.I., he has deposed that on 15-03-2012 the complainant came at about 01.30 p.m., and lodged complaint as per Ex.P1 and his signature is Ex.P1(b). On the basis of said complaint, he has prepared FIR as per Ex. P11 and his signature is Ex.P11(a) and submitted to the Court and also to his higher officers. On the same day he went to the spot where the incident took place and conducted mahazar as per Ex.P2 before the father of the victim girl and his friend-Shiva Prakash from 03.00 p.m., to 04.00 p.m., and his signature is Ex.P2(d). Thereafter he has recorded the statement of Pw.2 and Pw.3 and also received Xerox copy of S.S.L.C. Marks card. On 17-03-2012 he recorded the statement of Shruthi.G.S and then appointed Cw.21 and Cw.22 for tracing out of the victim girl and the accused. He has also recorded statement of Cw.5. On 26-03-2012 Cw.21 and Cw.22 produced the accused before station, he has arrested him as per rule, and 32 Spl.C.C.No.379/2014 recorded his voluntary statement. He has also given requisition to the doctor as per Ex.P12 and his signature is Ex.P12(a). He has received two articles sent by the doctor and subjected the same in P.F.No.23/2012. On the basis of statement of the accused, he left the victim girl near her house. The father of the victim girl brought her to station on 26-03-2012 and he has recorded statement of the victim girl and sent her for medical examination along with requisition as per Ex.P13 and his signature is Ex.P13(a). Thereafter he has received four articles from the doctor and subjected the same to Malupatti. Thereafter he has obtained the accused to police custody and taken to Tamil Nadu, Krishnagiri-M.G.M. Palace Lodge, where the incident took place and conducted spot mahazar in front of Cw.14 and Cw.15 as per Ex.P14 and his signature is Ex.P14(a). He has also recorded statement of Managers, suppliers, room boys and owners of said lodge and received Ex.P4 to Ex.P7-the Register Extracts. Then he has taken the accused to Hosur, near Mothers Residency Hotel, where the accused and the victim girl stayed and received receipt as per Ex.P8 and his signature is Ex.P8(b). He has also recorded statement of Pw.8- 33 Spl.C.C.No.379/2014 Vinod Babu, Cw.11-Shiva Kumar and Cw.12-Lokesh. He has sent the articles for chemical examination to the FSL. After conducting medical examination of the victim girl, he has received the medical report as per Ex.P16, OPD card as per Ex.P17 and Ex.P18. He has also received medical report of the accused as per Ex.P19 and also recorded statements of Pw.9 and Cw.12. He has also taken CDR of mobile call details in respect of SIM Used by the victim girl standing in the name of Pw.9. Ex.P10 is the prepaid customers invoice. Ex.P20 is the SIM details and Ex.P21 is the covering letter. He has also received election I.D. of Cw.17 and Ex.P22 is the said document. He has also taken documents as per Ex.P23 to Ex.P25 in respect of CDR, thereafter the investigation was continued by Cw.24. The accused tested the veracity of evidence of this witness by way of denial suggestions and nothing has been elicited favourable to the stand taken by the accused herein. At the same time the victim girl and her parents and brother turned hostile to the case of the prosecution at the time of their cross-examination. At this stage, this Court feels to observe that the evidence of this witness is a formal one. 34 Spl.C.C.No.379/2014
38. By going through the evidence of Pw.12-Sridhar.S. Police Inspector he has also deposed that he has received the record from Pw.11 for further investigation. He has received F.S.L report on 22-06-2012. He has also obtained opinion from Cw.19-Dr.R.Leelavathi, after receiving FSL report on 12-07- 2012 and after closing of investigation, he has filed charge sheet against accused. No doubt it is true that the accused has not cross-examined this witness.
39. Here the prosecution has not produced corroborative and cogent oral and documentary evidence of Pw.1 to Pw.3 and Pw.10, no independent witness stepped into the witness box to depose against accused. The lodge owner, Managers, suppliers and room boys identified the accused in their evidence, but the prosecution failed to identify the victim girl through them who was alleged to have accompanied with the accused. Non- identifying of the victim girl through said witnesses, it is absolutely fatal to the case of the prosecution herein. The learned advocate for accused also relied on the decision reported in 1998 Cri.L. J. Page 1360 and 2002 Cri.L. J. Page 35 Spl.C.C.No.379/2014 3346 in order to arrive to just conclusion. This Court also followed the ratio of principles of the above cited decisions.
40. Viewing from material evidence on record both at oral and documentary produced by the prosecution is not sufficient to prove the alleged offences against the accused beyond all reasonable doubt. The defense of the accused and the facts and circumstances of the case including materials on record discussed above probablizes the defense of the accused rather than the case of the prosecution.
41. In view of aforesaid reasons, I hold that the evidence of Pw.1 to Pw.15 and documentary evidence as per Ex.P1 to Ex.P29 and MO1 placed on record in respect of alleged offences is insufficient to prove that the accused is the resident of Jnana Teja School, Matthikere, Yeswanthapura, Bengaluru, the victim girl is the resident of 5th Cross, 5th Main, Malleshwaram, Bengaluru and was studying in 2nd PUC at Maharani Lakshmi Ammanni College, Malleshwaram and was aged about 17 years. The accused always used follow the victim girl near her college and near her tuition. On 13-03-2012 at about 01.30 p.m., the 36 Spl.C.C.No.379/2014 accused induced the minor victim girl-Cw.3 over phone No. 9741551487 through mobile phone No.9620157512 and called her to 5th Cross, Malleshwaram near play ground, when she came there, he kidnapped her and taken her to Hosur at Tamil Nadu and kept her in a hotel-Mothers Residency Lodge at Hosur by way of wrongful confinement and on 14-03-2017 he has taken her to Krishnagiri town at Tamil Nadu and confined her till 18-03-2012 at M.G.M. Palace Lodge-Krishnagiri and thereafter again he took the victim girl to M.G.M. Palace Lodge at Krishnagiri, Tamil Nadu and kept her there on 20-03-2012 and 21-03-2012 and committed forcible sexual intercourse with the victim girl against her will and wish and thereby committed offences punishable under section 366-A, 343 and 376 of I.P.C., beyond all reasonable doubt. Consequently I hold Point No.1 to 3 in the "Negative".
42. Point No.4:- For the above said reasons and discussions on Point No.1 to 3, I hold that the accused is entitled for an order of acquittal. Hence, in the final result, I proceed to pass the following:
37 Spl.C.C.No.379/2014
ORDER Acting under Section 235(1) of Cr.P.C. the accused is hereby acquitted for the offences punishable under section 366-A, 343 and 376 of IPC. His bail bond and surety bond stand cancelled.
MO-1 is treated as worthless property. Office is directed to destroy MO-1 in accordance with law after appeal period is over and, if an appeal is preferred, after the disposal of the appeal, subject to the result of said appeal.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open court on this the 11th Day of December 2017.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
Pw.1 Leelavathi Cw.1 08-11-2012
Pw.2 Gururaj Cw.2 08-11-2012
Pw.3 Santhosh Cw.4 26-11-2012
Pw.4 Mahadeshwaran Cw.6 20-12-2012
Pw.5 Rajendran Cw.7 20-12-2012
Pw.6 Gopal Cw.9 20-12-2012
38 Spl.C.C.No.379/2014
Pw.7 T.Shiva Prakash Cw.13 29-01-2013
Pw.8 Vinod Babu Cw.10 25-02-2013
Pw.9 Nikhil Kothari Cw.16 21-03-2013
Pw.10 Victim Cw.3 17-05-2013
Pw.11 Srinivas V.T. Cw.23 22-12-2015
Pw.12 Sridhar.S. Cw.24 22-12-2015
Pw.13 Jayskumst Cw.14 03-01-2017
Pw.14 Dr.Dilip Kumar.K.B. Cw.16 14-06-2017
Pw.15 Dr.Leelavathi Cw.19 14-06-2017
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION
Ex.P 1 Complaint Pw.1 08-11-2012
Ex.P 1a Signature of Pw.1 Pw.1 08-11-2012
Ex.P 1b Signature of Pw.11 Pw.11 22-12-2015
Ex.P 2 Mahazar Pw.1 08-11-2012
Ex.P 2a Signature of Pw.1 Pw.1 08-11-2012
Ex.P 2d Signature of Pw.11 Pw.11 22-12-2015
Ex.P 3 Letter Pw.1 08-11-2012
Ex.P 3a Signature of Pw.1 Pw.1 08-11-2012
Ex.P 4 to MGM Palace register Pw.5 20-12-2012
7 extract
Ex.P 4b Signature of Pw.11 Pw.11 22-12-2015
Ex.P 4c Signature of Pw.13 Pw.13 03-01-2017
Ex.P 5a & Signatures of Pw.5 Pw.5 20-12-2012
7a
Ex.P 4a, Signatures of Pw.6 Pw.6 20-12-2012
5b,
6a,
39 Spl.C.C.No.379/2014
7b
Ex.P 8 Hotel Mothers Pw.8 25-02-2013
Residency receipt
Ex.P 8a Signature of Pw.8 Pw.8 25-02-2013
Ex.P 9 Hotel Mothers Pw.8 25-02-2013
Residency receipt
Ex.P 9a Signature of Pw.8 Pw.8 25-02-2013
Ex.P 10 Prepaid customer Pw.11 22-12-2015
information
Ex.P 10a Signature of Pw.11 Pw.11 22-12-2015
Ex.P 10b Signature of Pw.11 Pw.11 22-12-2015
Ex.P 11 FIR Pw.11 22-12-2015
Ex.P 11a Signature of Pw.11 Pw.11 22-12-2015
Ex.P 12 Requisition Pw.11 22-12-2015
Ex.P 12a Signature of Pw.11 Pw.11 22-12-2015
Ex.P 13 Requisition Pw.11 22-12-2015
Ex.P 13a Signature of Pw.11 Pw.11 22-12-2015
Ex.P 14 Mahazar Pw.11 22-12-2015
Ex.P 14a Signature of Pw.11 Pw.11 22-12-2015
Ex.P 14b Signature of Pw.13 Pw.13 03-01-2017
Ex.P 15 Voluntary statement Pw.11 22-12-2015
of accused
Ex.P 15a Marked portion Pw.11 22-12-2015
Ex.P 16 Report of WPC-6950 Pw.11 22-12-2015
Ex.P 16a Signature of Pw.11 Pw.11 22-12-2015
Ex.P 17 OPD card of accused Pw.11 22-12-2015
Ex.P 18 OPD card of victim Pw.11 22-12-2015
Ex.P 19 Medical report of Pw.11 22-12-2015
accused
Ex.P 19a Signature of Pw.11 Pw.11 22-12-2015
40 Spl.C.C.No.379/2014
Ex.P 19b Signature of Pw.14 Pw.14 14-06-2017
Ex.P 20 Prepaid customer Pw.11 22-12-2015
information form
Ex.P 21 Letter Pw.11 22-12-2015
Ex.P 21a Signature of Pw.11 Pw.11 22-12-2015
Ex.P 22 Copy of Election I.D. Pw.11 22-12-2015
card
Ex.P 23 Copy of Driving Pw.11 22-12-2015
license
Ex.P 24, Call Detail List Pw.11 22-12-2015
25
Ex.P 26 Letter Pw.15 14-06-2017
Ex.P 27 Opinion of doctor Pw.15 14-06-2017
Ex.P 27a Signature of Pw.15 Pw.15 14-06-2017
Ex.P 28 FSL report By 14-06-2017
consent
Ex.P 29 Model Seal By 14-06-2017
consent
LIST OF MATERIAL OBJECTS MARKED ON
BEHALF OF PROSECUTION
MO 1 Panty Pw.10 17-05-2013
LIST OF WITNESSES EXAMINED DOCUMENTS MARKED & MO.S MARKED ON BEHALF OF DEFENCE NIL L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE