Bangalore District Court
State By Rajagopalanagara Police vs Keshava @ Kaku on 2 May, 2018
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the 28th day of April, 2018.
Present: SMT.YADAV VANAMALA ANANDRAO., B.Com. LL.B.[Spl.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO.288/2014
COMPLAINANT: State by Rajagopalanagara Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Keshava @ Kaku,
Son of Krishnappa,
Aged 28 years,
Residing at No.21, Nanjappa Building,
3rd Cross, Near Raghavendra School,
Kasturi Badavane, Rajagopalanagara,
Bangalore City.
Permanent Resident of:
Tippusultan Circle, Near Anjaneya
Temple, Bedibase Area,
Sindhanoor Town,
Sindhanoor, Raichur District.
[By Mrs.Mamatha.J, Standing Counsel]
1. Date of commission of offence 2.4.2014
2. Date of report of occurrence of 3.4.2014
the offence
3. Date of arrest of accused 05.04.2014
2 Spl CC No.288/2014
4. Period undergone in custody by The accused is in the judicial
custody since the date of this
the accused
arrest
5. Date of commencement of 30.6.2015
evidence
6. Date of closing of evidence 27.3.2018
7. Name of the complainant Smt.Lakshmi, complainant as
well as the mother of the victim
girl.
8. Offences complained of Secs.376, 323 and 506 of IPC,
Secs. 5(m) r/w Sec.6 of POCSO
Act, 2012, Sec.9(m) r/w Sec.10
of POCSO Act, 2012 and Sec.9(i)
r/w Sec.10 of POCSO Act, 2012
9. Opinion of the Judge The accused is convicted and
sentenced, as per the final order
JUDGEMENT
The Police Inspector, Rajagopalanagara police station has filed charge-sheet against the accused for the offences punishable under Secs. 323, 506 and 376 of IPC and under Secs. 5(m), 6, 9 (m)(i) r/w Sec.10 of POCSO Act, 2012.
2. Gist of the prosecution case is that:
The accused on 2.4.2014 at about 10.30 A.M., when the victim girl/CW2 who was aged about 11 years, who alone in the house No.20, 3rd Cross, Near Raghavendra School, Kasturi Layout, Rajagopalanagar, Bangalore, entered into her house, closed the doors, and forcibly took her to the bed, hugged her, 3 Spl CC No.288/2014 kissed her and bite her both the breasts and caused injuries, when the victim girl started to cry, the accused closed her mouth by hand and committed sexual intercourse on her knowingly that she was minor by pressing his penis on the vagina of the victim girl and thereby committed rape and aggravated sexual assault on the person of the victim girl, when she screamed loudly, the accused gagged her mouth and gave life threat if she discloses the fact of his act on her person to anybody else and thereby committed the said offences. Hence, on the basis of the complaint lodged by the complainant/mother of the victim girl, the complainant police have registered a case in Cr.No.209/2014. During the course of investigation, the accused was arrested and he was taken to the judicial custody. Since the date of his arrest, the accused is in the judicial custody. After collecting the materials, the Investigating Officer has filed charge-sheet against the accused. Cognizance was taken and the case is listed as Spl CC No.288/2014.
3. Initially this case was made over to this court CCH:55. As per the Notification, No. ADM-I (A)/ 614/2017, of the Office of the city Civil Court, Bengaluru, dated:4.8.2017 with effect from the afternoon of 5.8.2017, now, the case is before this Child Friendly Court, Bengaluru Urban District, for disposal.
4. The accused is represented by the counsel of his choice. After production of the accused, the copies of the prosecution papers [charge-sheet] was furnished to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
4 Spl CC No.288/20145. After hearing the learned Public Prosecutor and the learned counsel for the accused, this court has framed the Charge on 13.4.2015 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed the trial.
6. To prove the case, the prosecution has examined PWs-1 to 13 witnesses, out of total 19 charge-sheet witnesses and placed reliance on Exs.P1 to P17 documents and Material objects are marked as MOs-1 to 5. After completion of the evidence of the prosecution witnesses, statement of the accused under Sec.313 of Cr.P.C was recorded. The accused has denied the incriminating evidence available against him, but, he has not chosen to adduce defence evidence on his behalf.
7. Heard the arguments of the learned Public Prosecutor and the learned defence counsel. The learned defence counsel has filed written arguments. Perused the oral and documentary evidence and the record on hand. Following Points are formulated for consideration:
1. Whether the prosecution has proved beyond all reasonable doubt, the accused on 2.4.2014 at about 10.30 A.M., when the victim girl/CW2 who was aged about 11 years, who alone in the house No.20, 3rd Cross, Near Raghavendra School, Kasturi Layout, Rajagopalanagar, Bangalore, entered into her house, closed the doors, and forcibly took her to the bed, hugged her, kissed her and bite her both the breasts by causing injuries, when the victim girl started to scream, the accused closed her mouth by hand and committed sexual 5 Spl CC No.288/2014 intercourse on her knowingly that she was minor by pressing his penis on the vagina of the victim girl and committed aggravated penetrative sexual assault on the person of the victim girl, thereby the accused has committed the offence as defined under Sec.5(m) of POCSO Act, 2012 punishable under Sec.6 of POCSO Act, 2012?
2) Whether the prosecution has proved beyond all reasonable doubt that, the accused on the same date, time and place took the victim girl aged about 11 years, by taking her forcibly to bed and hugged her and kissed her and when she screamed, the accused closed her mouth and had committed rape/sexual intercourse with her, thereby, the accused has committed an offence punishable under Sec.376 of IPC?
3) Whether the prosecution has proved beyond all reasonable doubt that, the accused on the same date, time and place with a sexual intent hugged the victim girl, kissed her, touched her private parts, bite her breasts, involving physical contact with her and had committees aggravated sexual assault causing bodily harm and injury to sexual organs of the victim girl, thereby the accused has committed the offence coming within the purview of Sec.9(m) and Sec.9(i) of POCSO Act, 2012 punishable under Sec.10 of POCSO Act, 2012?
4) Whether the prosecution has proved beyond all reasonable doubt that, the accused on the same date, time and place, had sexually assaulted the victim girl by biting her both breasts on opposing the sexual assault by the accused, thereby, the accused caused voluntarily hurt on the person of the victim girl, thereby, the accused has committed an offence punishable under Sec.323 of IPC?
6 Spl CC No.288/20145) Whether the prosecution has proved beyond all reasonable doubt that, the accused on the same date, time and place, after committing rape/aggravated penetrative sexual assault on the victim girl, he [accused] put the victim girl under life threat, if she discloses the fact of his act to anybody else and criminally intimidated with an intent to cause alarm to the victim girl, thereby the accused has committed an offence punishable under Sec.506 of IPC?
In view of proving the guilt of the accused regarding attempt to commit rape, as the offence coming under Sec.376(2) r/w Sec.511 of IPC, following further point is formulated that:
6) Whether the prosecution has proved beyond all reasonable doubt that, the accused attempted to commit rape on the victim girl/CW2 who was aged 11 years, thereby the accused has committed the offence punishable under Sec.376(2) r/w Sec.511 of IPC?
7) What Order?
8. 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 Affirmative Point No.4: In the Affirmative Point No.5: In the Affirmative Point No.6: In the Affirmative Point No.7: As per the final order, for the following:7 Spl CC No.288/2014
REASONS
9. POINT NOS.1 TO 6:- As these Points are inter- linked to each other, they are taken up for common discussion to avoid repetition of facts. It is the specific case of the prosecution that, "The accused on 2.4.2014 at about 10.30 A.M., when the victim girl/CW2 who was aged about 11 years, who alone in the house No.20, 3rd Cross, Near Raghavendra School, Kasturi Layout, Rajagopalanagar, Bangalore, entered into her house, closed the doors, and forcibly took her to the bed, hugged her, kissed her and bite her both the breasts and caused injuries and , when the victim girl started to cry, the accused closed her mouth by hand and committed sexual intercourse on her knowingly that she was minor by pressing his penis on the vagina of the victim girl and thereby committed rape/aggravated penetrative sexual assault on the person of the victim girl, when she screamed loudly, the accused gagged her mouth and gave life threat if she discloses the fact of his act on her person to anybody else". Hence, the prosecution has to discharge its initial burden and that, only when it is discharged, then the presumptions under Sec.29 of POCSO Act, 2012 [presumption as to certain offences] and Sec. 30 of POCSO Act, 2012 [presumption of culpable mental state of the accused] can be raised. Therefore, whether the prosecution is able to discharge its burden is a question to be considered on the basis of the available evidence on record. If the prosecution is not able to discharge the burden, then it would shifts on the accused to rebut these presumptions and establish his defence version of his innocence and his false implication and that he 8 Spl CC No.288/2014 has not committed any alleged offences against the victim girl, etc. If it is established by rebutting the presumptions under Secs. 29 and 30 of POCSO Act, then, he [accused] is entitled for acquittal. Hence, with due consideration of legal aspects, it is proceeded with to evaluate the evidence led by the prosecution whether it is able to prove the guilt of the accused, so as to attract the said penal provisions, for conviction of the accused.
10. There is no dispute regarding the relationship between the victim girl, CW1, CW5 and CW6 and acquaintance with the accused that, CW1/complainant is the mother of the victim girl who deposed as PW1 and she was doing the tailoring work during the period of incident i.e., in the year 2014. She was residing in a rented premises in Kasturi Layout, Rajagopalanagar, along with her 2 children i.e, one son and the victim girl who was the younger daughter and that her [PW1] husband was residing in a village doing the agricultural work and he was coming to the said place[the house of CW1] once or twice a week and that,CW-5 who is the mother of the complainant was residing in the second road of her house and she is the grandmother of the victim girl. So also CW-6 sister of the complainant was residing in the house on the third road and her sister was residing with her husband. She is the maternal aunt of the victim girl. The accused was the resident of the house nearby the house of the complainant. He was residing with his wife. It is brought on record about the routine of the victim girl and her family, specifically her mother, her brother that, her mother/PW1 was attending her work as tailor and was going out the house in 9 Spl CC No.288/2014 the morning and the victim girl and her brother were school going children and during the lunch hours of the school, the victim girl used to came back to the house for taking food and that the mother of the victim girl i.e., the complainant used to give the key of the house to her sister-CW6 who deposed as PW3 and the victim girl used to receive the key from her aunt and take her food in her house and returning back to the school and after the school hours, the victim girl and her brother sometimes used to go to their grandmother's house or sometimes to their maternal aunt's [PW3] house.
11. The victim girl specifically deposed as PW2 regarding the incident that was taken place on 2.4.2014 that, the accused had committed aggravated penetrative sexual assault and aggravated sexual assault by biting both breasts of he victim girl in her house by bolting the door at about 10.30 A.M. PW1 deposed that, it was brought to her notice when she returned back from the work place on the said date of incident when her sister [PW3] informed the incident and also this complainant/PW1 enquired about the injury on the breasts of the victim girl, she disclosed the incident that, it was bite injuries caused by the accused and PW3 stated that the victim girl disclosed the incident when she was taking the victim girl for bath and noticed the bite marks on the breasts and on enquiry she disclosed the incident. Thus, PWs-1 and 3 have stated about the incident. The evidence of PWs-1 and 3 are considered to be relevant evidence under Sec.6 of Evidence Act as because from the evidence of PWs-1 and 3, it discloses that, they informed by the victim girl 10 Spl CC No.288/2014 on 24.2.2014, when the victim girl was in the house at 10 A.M., at that time, the accused came inside her house, bolted the door of the house, laid down the victim girl on the cot and he laid down on her and had caused sexual assault by touching penis on her private parts and when the victim girl cried and tried to run away, again the accused caught hold of her and had bitten her both breasts and caused injuries. The victim girl shouted loudly and the accused gagged her mouth with his hands and gave life threat to her that he would kill her, if she discloses the said incident to anybody else. On the next day i.e., on 3.4.2014, when the maternal aunt i..e, PW3 took the victim girl for giving her [victim girl] bath, in the morning, she noticed the injuries caused to her [victim girl] breast and asked how it was happened. PW2[victim girl] explained the incident that, it was caused by the accused on the last day i.e., on 2.4.2014 in her house in the manner, as referred above. In this connection, PW1 specifically stated that it was told by her sister [PW3] and also on enquiry with the victim girl, she [PW2] disclosed the incident. There is no dispute regarding acquaintance of the accused, who was residing nearby the house of the complainant, along with his wife.
12. It is also revealed that, after getting the incident informed by PW1 by both her sister and the victim girl [PWs-3 and 2], they took the victim girl to ESI Hospital and the victim girl informed about the incident to the Doctors and on examining the victim girl, the Doctors have informed the incident to the police by stating that, they have to face the consequences by getting the case filed against the accused and they agreed in that 11 Spl CC No.288/2014 regard and the intimation was issued to the Police [DCP] on phone. PW1 further deposed that, thereafter they took the victim girl to ESI Hospital and gave treatment and they received phone from the police and they intimated the police that, if they attended the house, it will be suspected. Hence, this PW1 informed the police that they would come to the police station. The police told that they were not coming in the uniform and on that day, the police came to the house of PW1 at 9 P.M., and enquired about the incident and it was informed in detail. The police also enquired the victim girl after sending all the members of the family outside. It is counseling of the victim girl and the ACP told them to take the victim girl for medical examination and the police took the victim girl to a hospital at Malleswaram for medical examination. The complaint was taken by the police near her house and the complaint is at Ex.P1 [Ex.P1(a) is the signature of PW1]. Again after filing of the complaint, the victim girl was taken to the hospital. The articles i..e, the clothes were collected in the hospital. She [PW1] identified the clothes of the victim girl which were taken in the hospital. Since this [PW1] witness partially turned hostile to the prosecution case, hence, getting declared her as hostile witness, by the learned Public Prosecutor by putting suggestions, has secured the admissions that, "on 4.4.2014 in between 9 A.M., to 10 A.M., the Investigating Officer came to the spot with panch witnesses and herself and the victim girl were present at the place of incident and they showed the place of incident and the Investigating Officer has conducted the mahazar of the spot in her house as per Ex.P2 and she identified her signature as per Ex.P2(a).
12 Spl CC No.288/201413. CW7- Chethan Kumar deposed as PW7 is nearby resident in the area of PWs-1 and 2. It is his hearsay evidence as he went to the spot on seeing the galata in the house of the complainant, when he was proceeding nearby the place of incident and he was informed about the incident and thereafter, he went along with the police to the house of the accused and they made enquiry in that regard, etc., as disclosed in Ex.P7, the Statement recorded by the police under Sec.161 of Cr.P.C. But, he has totally hostile to the prosecution case. Hence, much discussions has been avoided.
14. CW11-Shankaramma- Head Mistress of Sri.GuruRaghavendra Higher Primary School, Rajagopalanagara, Bangalore deposed as PW5. She has stated that during the year 2014, the Rajagopalangara Police sent a requisition to her to issue Certificate regarding the date of birth of the victim girl. Accordingly, on 5.4.2014, she has issued the Certificate as per Ex.P5 certifying the date of birth of the victim girl as 19.11.2003. She has not been cross-examined the learned defence counsel. Hence, her evidence is undisputed regarding the date of birth of the victim girl as 19.11.2003 that the victim girl was aged 10 years 3 months approximately, on the date of incident i..e, on 2.4.2014.
15. Regarding Ex.P2- Spot Mahazar, th Investigating Officer and PW1 supported the conducting of spot mahazar as PW1 admitted it during the cross-examination after treating her as 13 Spl CC No.288/2014 hostile witness. The Investigating Officer[PW11] deposed in this regard and his evidence is corroborated with the version of PW1. Hence, contents of Ex.P2-Spot Mahazar has been proved.
16. The prosecution has brought on record the medical evidence of Doctors which are relevant:
(a) CW12-Dr.Jagadeesh, Casualty Medical Officer, ESI, peenya, Bangalore, deposed as PW6. He has stated that, on 3.4.2014 at about 5.30 P.M., the victim girl aged about 11 years was brought by her mother with the history of molestation by the neighbour at 10 A.M., on 2.4.2014 in her own residence and came with the complaints of injuries over the chests of the victim girl.
He did local examination of the victim girl and found bite marks over both the breasts. As he was not expert in forensic medicine and gynecological problems, hence, he informed Dr.Prathiba [PW4] and Dr.Kiran for further evaluation and management. He registered MLC and intimated the same through his hospital to the concerned police. The police intimation in connection with the history of victim girl and examination particulars to the concerned police on 3.4.2014 is marked a Ex.P6. He has admitted that, the chest injuries noted in Ex.P6 may be caused due to human bite. The chest injuries cause on both the breasts of the victim girl. He was not cross- examined by the learned defence counsel. It is clear proof of sexual assault on PW2/victim girl, as because the act of bite itself is criminal act. The manner in which it was happened as disclosed by PW2/victim girl herself is clear evidence of mental state of the accused that he done so on her sex organs [chest].
14 Spl CC No.288/2014When there is no cross-examination then, it shall be the admission on the part of the accused that the said injury was due to his heinous criminal act, with sexual intent, at that place, when nobody were therein the house.
(b) CW13-Dr.Prathiba.J.S, Senior Resident at ESI Hospital, Peenya, Bangalore on contract basis, who deposed as PW4. She has stated that, on 3.4.2014 in the evening at about 5.30 P.M., the victim girl aged about 11 years, along with her mother appeared before her [PW4] She enquired the mother about the history, she told that her child was abused and molested by her neighbour on the previous day at around in the morning. Further mother told that she had seen bite marks on the chest of the child. She examined the victim girl after taking consent from the mother. She saw the bite marks on both sides of the chest. On local examination, the hymen of the victim girl appeared in-tact. Thereafter, she called Dr.Kiran, Specialist in OBG and he told that, as further facility is not available in the hospital, he referred ESI, Rajajinagar. She has issued MLC/OPD Slip as per Ex.P4. She was not cross-examine by the learned defence counsel. It is referred in Ex.P4 that, the victim girl was subjected to molestation. But, there is no reference that, it was rape case. Thus, it is sexual assault case without insertion of penis. However, it was by accused only. So, it is nothing but proof of attempt of rape/penetrative sexual assault on her, and not penetrative sexual assault as defined under Sec.3 of POCSO Act, 2012, but, it comes within the purview of attempt to commit rape punishable under Sec.376(2) R/w Sec.511 of IPC. Because the 15 Spl CC No.288/2014 very victim girl deposed that the accused by laying on her pressed his penis on her sex organ and also discharged urinal and thereby he done bad thing. Thus, it is not insertion as contemplated either under Sec.3(a) of POCSO Act, 2012, penetrating penis to any extent into vagina i.e., penetrative sexual assault as in case of rape as defined under Sec.375(a) of IPC. So, it is clear proof of attempt to rape.
(c) CW14-Dr.M.P.Pradeep Kumar-Assistant Professor, Department of Forensic Medicine, Victoria Hospital, deposed as PW8. He has stated that, on 5.4.2014 at about 3 P.M., on receiving requisition from PSI of Rajagopalanagar police station, for medical examination of the accused, he has examined the accused. On physical examination, he was moderately build and well nourished. On local genital examination, he found that all genital are normal. Based on the same, he has opined that, there is nothing to suggest that, the person is incapable of performing sexual intercourse. In that regard, he has issued Medical Certificate of the accused as per Ex.P8 and his signature is as per Ex.P8(a). He is not cross-examined by the learned defence counsel.
17. The prosecution has brought on record the evidence of the official witnesses:
(a) CW15-Narasamma.R, WHC deposed as PW9. She has stated that, on 5.4.2014 as per the direction of CW18, she took the victim girl to the KC General hospital for medical examination and after medical examination, she collected five sealed articles 16 Spl CC No.288/2014 and produced the same along with the victim girl before CW18 and gave Report as per Ex.P9. She was not cross-examined by the learned defence counsel. Hence, her evidence that, she took the victim girl for medical examination, remains undisputed. She has done her duty during the investigation by assisting the Investigating Officer.
(b) CW16-Siddappa-Head constable, deposed as PW10. He has stated that, on 5.4.2014, CW18 deputed him [PW10] and CW17 for tracing out the accused. They contacted the complainant and enquired about the accused. As per the information given by the informant, they came to Peenya 2nd stage bus stop at 9 A.M., and the informant told that, the person whom they were searching was standing in the bus stop. They called out his name and asked about the address, the said person told that his name was Keshava @ Kaka and told his address.
They came to know that the said person is the accused of this case and apprehended the accused and produced before CW18 at 9.30 A.M., and accordingly, PW10 reported in that regard as per Ex.P10. He was not cross-examined by the learned defence counsel. Hence, his evidence that, he apprehended the accused and produced before CW18, remains undisputed. He has done his duty during the investigation by assisting the Investigating Officer.
(c) The prosecution has brought on record the evidence of PW13-Arogyamma.V- SJPU Co-ordinator. She has stated that, on 4.4.2014, she was called by CW18-Investigating Officer, 17 Spl CC No.288/2014 Rajagopalanagar Police station to do the counseling of the victim girl. She went to the police station and done counseling on the victim girl and the victim girl has given her statement as per Ex.P3. In her statement, the victim girl has stated that, the accused has committed sexual assault on her and keeping her under fear/threat of life, and that he committed sexual assault on her more than once. Cross-examination is only in the form of denial that, she [PW13] has not done counseling of the victim girl and she has not recorded the statement of the victim girl as per the say of the victim girl, as per Ex.P3.
(d) CW18- Girish.B.P., Police Inspector/Investigating Officer deposed as PW11. He has stated that, on 3.4.2014 when he was on duty, at about 10.30 P.M., in the night, the complainant/CW1 came to the police station and lodged a complaint as per Ex.P1. Accordingly, he registered a case in Cr.No.209/2014 and sent the FIR[Ex.P11] to the court and to his higher officers. On the same day, at night, he visited the house of PW1, sent the victim girl/PW2 to KC General Hospital for medical examination along with PW9- WPC. On the same day, he received the MLC intimation from ESI Hospital, Peenya which is marked as per Ex.P4. On 4.4.2014, he visited the spot along with panch witnesses, PW1 showed the place i.e., house No.20, near Raghavendra School, 3rd Cross, Kasturi Layout, and PW1 and the victim girl were present and PW2/victim girl has shown the place of incident. He has conducted the spot mahazar as per Ex.P2 in between 9 A.M., to 10 A.M. On 6.4.2014, he has recorded the statement of the victim girl by calling SJPU Co-ordinator and the 18 Spl CC No.288/2014 statement of the victim girl is as per Ex.P3. After registering the case, he deputed PW10 and CW17 for tracing out the accused and on 5.4.2014, the accused was traced out and he was produced before him [PW11] and PW10 gave Report as per Ex.P10. After following the due procedure, he has arrested the accused and recorded his voluntary statement. He has conducted seizure panchanama at the instance of the accused as per Ex.P12, as the accused volunteers that, he would give the clothes which were worn by him at the time of the incident, which were kept in his house and led the Investigating Officer and the panch witnesses and accordingly, the clothes of the accused were seized. Thus, the material objects recovered at the instance of the accused, has been proved. Thereafter, he sent the accused for medical examination and obtained the medical certificate as per Ex.P8. On 5.4.2014, he obtained the certificate regarding the date of birth of the victim girl as per Ex.P5. On 8.4.2014, he sent the victim girl for recording of the statement under Sec.164 of Cr.P.C by the Learned Magistrate. The statement of the victim girl recorded under Sec.164 of Cr.P.C is as per Ex.P14. On 6.5.2014, he sent the sealed articles with regard to the victim girl and the accused, to FSL and the acknowledgement issued by the FSL for having received the said sealed articles is as per Ex.P15. On 7.4.2014, he has obtained the medical report of the victim girl as per Ex.P17. It is notable point that, the medical report as opined and as per FSL Report, there was no seminal stains. It does not support that there was actual sexual intercourse on the victim girl. However, it has to be held that, such an act was proof of attempt to commit rape. PW11 has undertaken part of 19 Spl CC No.288/2014 investigation. He has not been cross-examined by the learned defence counsel. So, his [PW11] evidence now considered to be material and clinching corroborated with evidence of other witnesses.
(e) CW19-R.Manjunath- the then Police Inspector of Rajagopalanagar police station deposed as PW12. He has stated that, on20.5.2014, he received the case file of this case from PW11. After completing of the investigation, he has filed charge- sheet against the accused. Cross-examination is only in the form of denial.
18. The relevant portion of incriminating evidence deposed by the victim girl[PW2] and her mother [PW1] and her maternal uncle[PW3] and material evidence and statement recorded by SJPU and also contents of Ex.P1 disclosing that, "accused had bitten the chest of the victim girl/PW2". The Mahazar-Ex.P2 pertaining to the spot and it was done in view of Ex.P1 i..e, "the place [house of PW1] where the accused bitten on PW2/victim girl and caused hurt [injury] and threatened of her life", Ex.P3, the statement recorded by PW13-SJPU on counseling, revealing that "When PW2/victim girl about to take key to lock her house after taking her meals at her house, the accused entered that house and bolted the door and took her to the room by holding her both hands and inspite of request to leave her, he removed her dress and laid her on cot and pressed her by hugging her and bitten on her breasts and gagged her mouth, and slept on her and he made his genital to touch her sexual organ and discharged urinals and 20 Spl CC No.288/2014 he wiped it by her cloth and while asking why he done so, he by abusing her told her to wear the clothes and beaten her and made her to wear the clothes and also gave life threat, if she disclosed the said act to anybody else and went away from the house" and that she disclosed the incident to her maternal aunt-PW3 and mother-PW1 at the time of taking her to bath by PW3 and that "Nobody did so, except the accused and that the accused was doing so earlier also whenever her mother was not at house". Exs.P4, P6, P16 and P17 are revealing only molestation by accused [i.e, bite marks over breasts], medically reported that hymen was intact; Ex.P14-Statement recorded under Sec.164 of Cr.P.C wherein she [victim girl] disclosed that, the accused had put his genital organ on her genital organ. So, also she [victim girl/PW2] spoken to this effect during her evidence in the witness box. So, also she deposed about discharging of urinals and biting on her chest and gave life threat, if same was disclosed to anybody and the accused went away from the place of incident, etc. [At this juncture, it is necessary to disclose the manner in which the cross-examination was done and it has been recorded about unhealthy suggestions put to the victim girl, which is somewhat irritating to the child and my predecessor-in-office has recorded the same.] However, the collective effect of giving statement by the victim girl on different occasions before said authorized persons [ parents, Investigating Officer, Doctors, SJPU. Learned Magistrate and before this court], it is nothing but, proof of attempt of rape on the victim girl and it was by the very accused in the manner as discussed above and it is heinous in nature.
21 Spl CC No.288/201419. It is also necessary to appreciate the evidence of the Investigating Officer who has collected the materials to bring home the guilt of the accused. The Investigating Officer no doubt has collected the materials and the learned Public Prosecutor placed the evidence of the said material witnesses with relevant documents and able to bring on record the criminal/heinous act of the accused i.e., the sexual assault on the victim girl/PW2 a minor aged about 10 years 3 months on the date of incident, at that place i..e, the room in the house of PW1/complainant, at that time, when there were none else in that house and the accused took the disadvantage of such lonely place that was created at that time and it is proof of his misdeeds/lust and with sexual intent. The accused has not proved his defence of innocence and that he was falsely implicated in the case. Even he did not whisper as to the cause why he had falsely implicated and the circumstances showing that he was innocent, at the time of recording of his statement under Sec.313 of Cr.P.C; nor adduced evidence in that regard; nor got admission from the prosecution witnesses, specifically the victim girl and her mother etc., about the said defence, so that such defence can be appreciated. So, in the absence of these defence of being proved, the arguments on alleged defence by the learned counsel for the accused do not sustain.
20. The learned counsel for the accused pressed upon the defence and put forth the arguments that, "Complainant is only regarding bite marks on the breast of the victim. There is no medical examination regarding the same nor the denture marks of the accused is examined by way of special 22 Spl CC No.288/2014 examination and compared with the mark on the breast of the victim".
"Though the complaint is only regarding bite marks, the victim explains in the cross examination regarding penetration into her vagina by the accused. The said evidence is clear and has occurred again and again. It shows that the victim is having knowledge about the same. However the medical examination clearly states that, no occurrence of "sexual intercourse" therefore it is clear that the entire evidence is false and it is made only with malicious intension in collusion with the parents and other relatives of the victim".
But, as because holding guilty of the accused, as discussed above, the said argument does not sustain. She has further argued that, "Entire case of the prosecution, no where "Penetrative Sexual Assault" has been established or proved. Requirement of section 3 of the POCSO Act therefore has not be established. It is not a case under Section 5 of POCSO Act. Inspite of the same section 5 has been included."
But, prosecution has proved the guilt of the accused for the offence of attempt to commit rape/penetrative sexual assault on the victim girl. Therefore, the said argument does not come to the aid of the accused. She has further argued that:
"The prosecution has totally failed to establish that, the statement of the victim has been recorded in the residence of the child and the statement has been recorded by women police. The prosecution has totally failed to establish that the police officer while recording the evidence was not in the uniform. Therefore requirement under section 24 of POCSO Act has not been fulfilled. It is therefore clear that the entire story is created by the complainant in collusion with the police. The statement of the victim is clear that, it has been made in the police station and in the presence of male police officer which is against to the applicable provisions. The requirement under Section 26 is also not established. There is no 23 Spl CC No.288/2014 materials to show that the statement recorded by the police officer is in accordance with the statement as spoken by the child".
"The prosecution has totally failed to establish requirement under section 27 of POCSO Act. It is not established that, the examination of the child was conducted in the presence of the mother of the child or in the presence of the any other person in whom the child reposes trust. The medical examination is also not done in the presence of a women nominated by head of medical institution. As seen in the medical examination has been done as per the history of the alleged case given by the police".
But, it is rightly pressed upon by the learned Public Prosecutor that, procedural defect is ignorable which is not material to the case and that the court has to see the entire evidence placed by the prosecution and evaluate carefully in POCSO cases, wherein the crime against the minor is involved. Therefore, the minor defects and technical defects are ignorable in this case. Hence, the said arguments does not sustain.
21. The learned counsel for the accused further argued:
"Even though under section 29 presumption is available to the prosecution, the entire circumstances, such as uncertainty with respect to the time of the alleged incident, denial by the owner of the shed house that, any such persons are in tenants. Medical examination that, no seaman or injury was found on the body of the victim and failure of the prosecution to establish that the recording of statement of child was made in her house and made by women police officer without uniform and failure of the prosecution to establish penetration or establishing or touching of private parts of the victim by the accused creates reasonable doubt on the entire story of the prosecution and therefore the presumption is not available to the prosecution. The entire story which clearly shows that, it is created story by the prosecution. The prosecution has totally failed to establish the case and therefore the presumption under Act cannot be made available to the prosecution".24 Spl CC No.288/2014
The legal consequence with reference to Sec.29 of POCSO Act, 2012 though it is true, but, in this particular case as discussed above, the entire evidence placed by the prosecution not being rebutted by the accused by adducing his evidence and also not disputing the gist narrated to him about the incriminating evidence of material witnesses. It is crystal clear that, the prosecution proved the guilt of the accused that he has committed the offence of attempt of rape and also aggravated sexual assault, causing hurt and giving life threat on the victim girl on that day. Therefore, it cannot be material defect to doubt the prosecution case. The accused has failed to rebut the presumptions available under Sec.29 and also Sec.30 of POCSO Act, 2012.
22. Therefore, viewed from all angels, it is clear that, the prosecution has proved the guilt of the accused beyond all reasonable doubt by placing clinching and cogent evidence that, the accused has attempted to commit rape and also committed the aggravated sexual assault on the victim girl in the manner, as discussed above. On the other hand, the accused has not rebutted the evidence placed on record by the prosecution. At the initial stage itself, the prosecution has discharged the presumption and therefore, the court shall have to raise the presumption under Secs. 29 and 30 of POCSO Act, 2012, whereas the accused has not rebutted the presumption availed by the prosecution by placing evidence supporting his defence version that, he is innocent and he has been falsely implicated in this case etc. Therefore, it is clear proof and bringing of said guilt of the accused on record by the prosecution about attempt to commit rape and aggravated sexual assault and caused injury on 25 Spl CC No.288/2014 the victim girl's chest and gave life threat to the minor victim girl aged about 10 years 3 months, which has attracted Secs.376(2) r/w Secs.511, 323, 506 of IPC and under Sec.10 of POCSO Act, 2012. But, the prosecution materials as discussed above do not support the alleged offence charged against the accused punishable under Sec.376(2) of IPC and Sec.6 of POCSO Act, 2012 and the accused cannot be made liable under that penal provisions. Therefore, POINT NOS.1 and 2 are answered in the Negative and POINTS-3 TO 6 are answered in the Affirmative .
23. POINT NO.7:- In the result, I proceed to pass following:
ORDER Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences punishable under Sec.10 of POCSO Act, 2012, Sec.376(2) r/w Sec.511 of IPC and under Secs. 323 and 506 of IPC.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 28th day of April, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.26 Spl CC No.288/2014
2.5.2018 ORDER ON SENTENCE The accused is produced from the judicial custody. The learned counsel for the accused is present and the learned Public Prosecutor is also present. Heard on sentence. The accused through his counsel submitted that, 15 prior to this incident, his marriage was solemnized and he has aged parents [mother and father] and his father was bed-ridden due to fall in the bathroom and suffering from ailments. His mother is also aged person and suffering from ailments and he is the only earning member of his family and there are dependents on his earnings and he is poor having no any properties and he has undergone already in the judicial custody and prays to show lenient view while awarding the punishment.
On the other hand the learned Public Prosecutor specifically argued that, the accused has committed heinous offence on the person of the victim girl who is minor aged about 11 years and it is sexual assault and it has been held that, the accused had committed rape and he is not entitled for any plea bargaining in this heinous offence and further submitted that, the accused has not made out any grounds to award minimum quantum of punishment. Hence, without extending leniency, the accused may be awarded maximum punishment and relied upon the decisions reported in AIR 2013 SC 3246 (C), with reference to the plea bargaining which is not available to the person who has committed the heinous offence on the victims i.e., aggravated penetrative sexual assault/rape and another ruling is AIR 2013 SC 2997, wherein it is considered about the imposing of maximum punishment, as the court has to consider the condition 27 Spl CC No.288/2014 of victim girl who was subjected to the sexual assault/rape and the society at large.
With due consideration of arguments put forth by the learned Public Prosecutor and the learned counsel for the accused and also the accused with reference to his family and status and poverty and earning source etc., it is proceeded to refer the penal provisions and as because the prosecution has proved the guilt of the accused beyond all reasonable doubt about the committing of sexual assault on the minor victim girl aged about 11 years by the accused, he has been convicted for the offences punishable under Sec.10 of POCSO Act, 2012 and also under Sec.376(2) r/w Sec.511 of IPC and under Secs. 323 and 506 of IPC, as because the accused has also caused bodily injury and gave life threat to the victim girl amounting to criminal intimidation. Hence, the offences are heinous in nature and if at all, the accused had committed the rape/ aggravated penetrative sexual assault[ as the victim girl was aged 11 years at the time of incident i.e., below the age of 12 years], it would have been imposed maximum sentence, which has been proved for punishment under Sec.6 of POCSO Act, 2012 and also under Sec.376(2) of IPC and maximum punishment prescribed is life imprisonment. But, it is attempted to commit rape on the minor victim girl falling within the purview of Sec.376(2) r/w Sec.511 of IPC. If committed it would have been imposed for 20 years imprisonment. But, ½ of the same would comes to 10 years. The nature of offence falling within the purview of Sec.9 of POCSO Act, 2012 i.e., aggravated sexual assault and punishment clause is under 28 Spl CC No.288/2014 Sec.10 of POCSO Act, 2012, prescribing the minimum imprisonment for Five years, which may extend to Seven years. Therefore, considering in the present case, it is held to be just and proper to award the imprisonment ½ of the expected punishment of 20 years, if the accused had committed the offence. As such, in that regard, ½ of 20 years imprisonment comes to 10 years and hence, it is proceeded to pass the following:
SENTENCE The accused/convict by name Keshava @ Kaku is sentenced to undergo Rigorous Imprisonment for a period of 10 Years and to pay a fine of Rs.5,000/-. In default of payment of fine amount, of Rs.5,000/- the accused shall further undergo simple imprisonment for a term of One year, for the offences punishable under Sec.376(2) Read with Sec.511 of IPC.
Further, the accused shall undergo Imprisonment for a period of 7 Years and to pay a fine of Rs.5,000/-. In default of payment of fine amount of Rs.5,000/- the accused shall further undergo simple imprisonment for a term of One year for the offence punishable under Sec.10 of POCSO Act, 2012.
Further, the accused shall undergo imprisonment for a period of One Year and to pay a fine of Rs.500/-. In default of payment of fine amount of Rs.500/- the accused shall further undergo simple imprisonment for a term of One Month, for the offence punishable under Sec.323 of IPC.29 Spl CC No.288/2014
Further, the accused shall undergo imprisonment for a period of 2 Years and to pay a fine of Rs.1,500/-. In default of payment of fine amount of Rs.1,500/- the accused shall further undergo simple imprisonment for a term of 3 Months, for the offence punishable under Sec.506 of IPC.
All these sentences shall run concurrently.
The period of detention undergone by the accused/convict in judicial custody shall be set-off again the terms of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
As regards the victim compensation, the victim girl/PW2 is awarded the victim compensation of Rs.1,50,000/-. under the "Karnataka Victim Compensation Scheme, 2011". The Government of Karnataka shall pay compensation of Rs.1,50,000/- to the victim girl/PW2 from "Victim Compensation Fund" as provided under Section 357(A) of Code of Criminal Procedure (Amended Act) of 1973) under Sec.33 of POCSO Act, 2012 and under Rule 7 of POCSO Rules, 2012 through District Legal Services Authority, Bengaluru Urban District, Bengaluru..
In case, the accused deposits total fine amount of Rs.12,000/-, as ordered by this court, Rs.10,000/- shall be adjusted towards the victim compensation amount and the remaining amount of Rs.2,000/- is ordered to be confiscated to the State Exchequer.
30 Spl CC No.288/2014MOs-1 to 5 being worthless are ordered to be destroyed after the appeal period is over.
Office is directed to supply the free copy of this Judgement and order on sentence to the accused forthwith.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 2nd day of May, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Lakshmi CW1 30.6.2015
Pw.2 Victim girl CW2 12.8.2015
PW.3 Mangala CW6 12.8.2015
PW.4 Dr.Prathiba.J.S CW13 15.3.2017
PW.5 Shankaramma CW11 24.4.2017
PW.6 Dr.Jagadish CW12 8.6.2017
PW.7 Chethan Kumar CW7 30.8.2017
PW.8 Dr.M.P.Pradeep Kumar CW14 16.9.2017
PW.9 Narasamma.R CW15 12.1.2018
PW.10 Siddappa CW16 12.1.2018
PW.11 Girish.B.P CW18 3.3.2018
31 Spl CC No.288/2014
PW.12 R.Manjunath CW19 22.3.2018
PW.13 Arogyamma.V Addl.Witness 27.3.2018
Documents marked for the prosecution:
Ex.P1 Complaint dated: 3.4.2014 lodged by PW1
Ex.P1(a) Signature of PW1
Ex.P1(b) Signature of PW11
Ex.P2 Spot Panchanama conducted in the place of the
alleged incident i.e, the house of the complainant Ex.P2(a) Signature of PW2 Ex.P2(b) Signature of PW11 Ex.P3 Statement of the victim girl/PW2 given before the Co-ordinator, SJPU Ex.P3(a) Signature of PW1 Ex.P3(b) Signature of PW11 Ex.P3(c) Signature of PW13 Ex.P4 MLC/OPD Slip of the victim girl/PW2 Ex.P4(a) Endorsement issued by PW4 Ex.P4(b) Signature of PW4 Ex.P5 Certificate issued by Head Mistress, Sri.GuruRaghavendra School, Rajagopalanagara, Peenya 2nd Stage, Bangalore, certifying the date of birth of the victim girl/PW2 as 19.11.2003 Ex.P5(a) Signature of PW5 Ex.P5(b) Signature of PW11 Ex.P6 Medical Certificate of the victim girl/PW2 Ex.P6(a) Signature of PW6 32 Spl CC No.288/2014 Ex.P7 Statement given by PW7 before the complainant police under Sec.161 of Cr.P.C Ex.P8 Medical certificate of the accused Ex.P8(a) Signature of PW8 Ex.P8(b) Signature of PW11 Ex.P9 Report given by PW9 regarding taking the victim girl to KC General hospital for medical examination and collecting the sealed articles from the Doctor of KC General Hospital and producing the same before the Police Inspector of the complainant police station.
E.P9(a) Signature of PW9 Ex.P9(b) Signature of PW11 Ex.P10 Report given by PW10 regarding tracing of the
accused and apprehending him and producing him before the Police Inspector of the complainant police station Ex.P10(a) Signature of PW10 Ex.P10(b) Signature of PW11 Ex.P11 FIR Ex.P11(a) Signature of PW11 Ex.P12 Seizure mahazar Ex.P12(a) Signature of PW11 Ex.P13 Voluntary statement of the accused Ex.P13(a) Signature of PW11 Ex.P13(b) LTM of the accused Ex.P14 Statement of the victim girl/PW2 recorded by the Learned Magistrate under Sec.164 of Cr.P.C Ex.P15 Acknowledgement issued by FSL for receiving the sealed articles 33 Spl CC No.288/2014 Ex.P15(a) Signature of PW11 Ex.P16 Medical Examination receipt of the victim girl issued by ESI, Bangalore Ex.P16(a) Signature of PW11 Ex.P17 Medical report of the victim girl Ex.P17(a) Signature of PW11 Material Objects marked for the prosecution:
MO-1 Shirt MO-2 Jeans pant MO-3 Kacha MO-4 One shirt MO-5 One small Leggins
Witness examined, documents and MOs marked for the accused:
NIL [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.34 Spl CC No.288/2014
28.4.2018 Accused is produced from the judicial custody.
Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences punishable under Sec.10 of POCSO Act, 2012, Sec.376(2) r/w Sec.511 of IPC and under Secs. 323 and 506 of IPC.
[YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.35 Spl CC No.288/2014
2.5.2018 Accused is produced from the JC.
Sentence pronounced in open court:
[ Vide separate detailed Sentence] The accused/convict by name Keshava @ Kaku is sentenced to undergo Rigorous Imprisonment for a period of 10 Years and to pay a fine of Rs.5,000/-. In default of payment of fine amount, of Rs.5,000/- the accused shall further undergo simple imprisonment for a term of One year, for the offences punishable under Sec.376(2) Read with Sec.511 of IPC.
Further, the accused shall undergo Imprisonment for a period of 7 Years and to pay a fine of Rs.5,000/-. In default of payment of fine amount of Rs.5,000/- the accused shall further undergo simple imprisonment for a term of One year for the offence punishable under Sec.10 of POCSO Act, 2012.
Further, the accused shall undergo
imprisonment for a period of One Year and to
pay a fine of Rs.500/-. In default of payment of fine amount of Rs.500/- the accused shall further undergo simple imprisonment for a term of One Month, for the offence punishable under Sec.323 of IPC.36 Spl CC No.288/2014
Further, the accused shall undergo imprisonment for a period of 2 Years and to pay a fine of Rs.1,500/-. In default of payment of fine amount of Rs.1,500/- the accused shall further undergo simple imprisonment for a term of 3 Months, for the offence punishable under Sec.506 of IPC.
All these sentences shall run concurrently.
The period of detention undergone by the accused/convict in judicial custody shall be set- off again the terms of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
As regards the victim compensation, the victim girl/PW2 is awarded the victim compensation of Rs.1,50,000/-. under the "Karnataka Victim Compensation Scheme, 2011". The Government of Karnataka shall pay compensation of Rs.1,50,000/- to the
victim girl/PW2 from "Victim Compensation Fund" as provided under Section 357(A) of Code of Criminal Procedure (Amended Act) of 1973) under Sec.33 of POCSO Act, 2012 and 37 Spl CC No.288/2014 under Rule 7 of POCSO Rules, 2012 through District Legal Services Authority, Bengaluru Urban District, Bengaluru..
In case, the accused deposits total fine amount of Rs.12,000/-, as ordered by this court, Rs.10,000/- shall be adjusted towards the victim compensation amount and the remaining amount of Rs.2,000/- is ordered to be confiscated to the State Exchequer.
MOs-1 to 5 being worthless are ordered to be destroyed after the appeal period is over.
Office is directed to supply the free copy of this Judgement and order on sentence to the accused forthwith.
[YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
38 Spl CC No.288/2014