Bangalore District Court
Unknown vs Krishna on 23 September, 2016
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 23rd DAY OF SEPTEMBER 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 80/2015
COMPLAINANT :
The State of Karnataka by
Kumaraswamy Layout Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
Krishna ,
S/o. Swamy Kannan,
Aged about 24 years,
R/at No.5, 5th Main,
6th Cross, Bikasipura,
Bangalore City.
[Reptd by Sri M.Girish and associates
-advocates]
2 Spl.C.C.80/15
JUDGMENT
Kumaraswamy Layout Police, Bangalore City have charge sheeted the accused for offences punishable under Section 354-A of Indian Penal Code and under Section 9(m) and 10 of Protection of Children from Sexual Offence Act, 2012.
2. The case of the prosecution, in brief, is as under :
CW-4 aged about 10 years studying in 3rd standard was standing in front of her house on 22.11.2014 at about 3.30 p.m. The accused with intent to commit sexual abuse on her took her to deserted building under construction by stating that he wanted to take measurement of her clothes for the purpose of her daughter. Inside the building he placed his hands all over her body, victim slipped from him by stating that she would ask her mother. After intimating her father and mother took them to the spot where she had shown him to her mother and also publics who gathered by that time, publics assailed him. CW-1 and CW-5 parents of the victim girl took her to police station and lodged a complaint at 4.45 p.m. The case
3 Spl.C.C.80/15 was registered. PW-7 Raju.T.D. Investigating Officer immediately had sent his staff and apprehended the accused and produced before him. He got recorded the statement of the victim girl through women staff. Accused and victim girl were sent to hospital for medical examination on the same day. He drew necessary mahazars and recorded the statement of prosecution witnesses. By completing the investigation Investigating Officer submitted charge sheet to the court for the aforesaid offences.
3. The charge sheet was submitted to 50th A.C.C & S.J. Court. Cognizance was taken and registered in Special CC. On the point of jurisdiction after allocation of the work the case has been transferred to this court. On hearing both sides the charge was framed for offences punishable under Sections 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012 and under Section 354-A of Indian Penal Code and read over to the accused. Accused pleaded not guilty 4 Spl.C.C.80/15 and claimed to be tried. Hence, posted for evidence on prosecution side.
4. On prosecution side got examined as many as 7 witnesses as P.W.1 to P.W.7 out of 11 charge sheet witnesses and got marked the documents at Ex.P.1 to Ex.P.5. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole incriminating evidence against him and he has not chosen to adduce evidence on his side. It was posted for arguments.
5. Heard the arguments both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under :
1. Whether the prosecution has proved beyond reasonable doubt that accused had committed aggravated sexual assault on CW-4 aged about 10 years on 22.11.2014 5 Spl.C.C.80/15 at 3.30 p.m., in the building under construction bearing No.127 situated in 3rd cross, Ramaiah Nagar, Kumaraswamy Layout, by touching all over her body, punishable under Section 9(m) r/w 10 of Protection of Children from Sexual Offence Act, 2012?
2. Whether the prosecution has proved beyond reasonable doubt that on the aforesaid date, time and place he had committed sexual abuse on her by touching her body, punishable under Section 354-A of I.P.C?
3. What order?
7. My findings on the above points are as under:-
Point No.1 : In the affirmative
Point No.2 : In the affirmative
Point No.3 : As per final orders for the
following
6 Spl.C.C.80/15
REASONS
8. Points No.1 and 2:- These two points are taken together for discussion to avoid repetition of facts as they are interconnected to each other.
9. The prosecution made allegation against accused that he had committed aggravated sexual assault on PW-6 aged about 10 years at about 3.30 p.m., in the building under construction bearing No.127, situated in 3rd cross, Ramaiah Nagar within the jurisdiction of Kumaraswamy Layout, by placing his hands all over her body with sexual intention. The incident took place on 22.11.2014. The POSCO Act came in force on 14.11.2012. According to prosecution the victim girl was aged about 10 years as on the date of the occurrence. After coming into force of POSCO Act this incident occurred. Therefore, the age of the victim at the first instance shall have to be determined.
7 Spl.C.C.80/15
10. In view of Section 2(1)(d) of POSCO Act "child" means any person below the age of 18 years. In the present case as per prosecution PW-6 the victim girl was of 10 years as on the date of alleged occurrence. On this aspect, the prosecution has produced documentary as well as oral evidence. Ex.P8 is the covering letter issued by the Secretary of the school in which the victim girl was studying at the time of the incident. As per Ex.P8 photo copy of birth certificate (attested) was enclosed. Ex.P9 is the Xerox copy bearing the original seal of the school. At the time of the recording evidence of PW-7 the Investigating Officer, the learned Public Prosecutor had shown these documents. The learned counsel for the accused submits that there is no dispute with respect to the age of the victim girl. Apart from that Ex.P8 is the covering letter signed by the Secretary of the school with the seal and Ex.P9 was annexed to Ex.P8. On these two grounds Ex.P9 was permitted to be marked in the chief-examination of PW-7. Therefore, Ex.P9 is an undisputed document. Apart from that the same is supported by oral testimony of PW-3 Afzal Pasha, 8 Spl.C.C.80/15 father of the victim girl, PW-4 Nageena mother of the victim girl and PW-6 the prosecutrix. PW-7 Investigating Officer has also corroborated the same.
11. In view of Rule 12(3) of Juvenile Justice (Care and Protection of Children) Rules, 2007) is applicable to determine the age of prosecutrix/victim. It should be determined by matriculation or equivalent certificates or date of birth certificates from school first attended or birth certificate by Corporation/Municipal authority or Panchyat and only in the absence of such documents medical opinion can be sought for. On this point I have relied upon (2013) 14 SCC 637 (Mahadeo S/o Kerba Maske Vs. State of Maharashtra and another), it has held that:
"Penal Code, 1860 - Ss. 376 and 363 -
Kidnapping and rape - Age of prosecutrix/victim
- Determinatin of - Yardstick for - Certificates of age from schools or Local Authorities Vis-à-vis medical evidence - Held, statutory provision in Juvenile Justice (Care and Protection of Children) Rules, 2007, R.12(3) is also applicable to determine age of young prosecutrix/victim - Hence, it should be determined by matriculation 9 Spl.C.C.80/15 or equivalent certificates or date of birth certificates from school first attended or birth certificate by Corporation/Municipal authority or Panchayat and only in absence of such documents medical opinion can be sought for -
Therefore, reliance placed upon school certificates to arrive at age of prosecutrix to be below 18 years was perfectly justified - Juvenile Justice (Care and Protection of Children) Rules, 2007 - R.12(3) - Procedure for determination of age of juveniles - Application of, for determination of age of victim/prosecutrix - Criminal Trial - Medical Jurisprudence/Evidence - Age - Juvenile/Child victim - Proof of age - Valid evidence".
Therefore, from the documentary testimony as well as oral testimony on prosecution side the age of victim girl can be very well concluded that she was of 10 years as on the date of alleged occurrence.
12. Section 29 of Protection of Children from Sexual Offence Act, 2012 provides presumption as to certain offences:-
"Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to 10 Spl.C.C.80/15 commit the offence, as the case may be, unless the contrary is proved."
In the present case the accused has been prosecuted for offence punishable under Section 9 of POSCO Act. When the person has been prosecuted for offence under Section 9 of this Act the special court shall presume that he has committed that offence unless contrary is proved. The presumption is available to the prosecution. However, it is the settled principle of law that accused can rebut the presumption based on the evidence placed on prosecution side also. What is the evidence available on prosecution side shall have to be looked into.
13. According to prosecution PW-6 studying in 3rd standard during that time, was standing in front of her house. Accused had come to Gana Apartment which is near her house. There was none on the street at that time. That was the time of 3.30 p.m. on 22.11.2014. His wife has delivered a baby one week back. He had intention of having the sex with someone. On being seen the girl standing alone and there was none on the street at that time, he took her by holding her hands by 11 Spl.C.C.80/15 stating that he wanted to take measurement of her clothes for the dress of his daughter and he took her to inside the deserted building under construction situated in 3rd cross, which is nearby her house. Inside the building he placed his hands all over the body, then she escaped from him by stating that she would ask her mother, came home and revealed the incident to her mother. Immediately she took her to the said building, the publics also gathered questioning what happened. On being disclosed the incident entered inside the building. Victim girl had identified and shown the accused who was inside the building, publics assailed him. PW-3 Afzal Pasha -father of the victim girl, PW-4 Nageena -mother of the victim girl with PW-6 the victim girl had gone to the police station and lodged a complaint as per Ex.P2 at 4.45 pm. Immediately PW-7 set the law into motion and had sent his staff, they apprehended the accused while he was going near Gana Apartment and produced him before PW-7 at 5.50 pm., accused was arrested. The 161 statement of the victim girl has been recorded through PW-2 Sunitha Kumari, W.P.C. Accused and victim girl were 12 Spl.C.C.80/15 sent to hospital for medical examination. The 164 statement of victim girl had also been recorded by the learned Magistrate as per Ex.P4. This is the case of the prosecution.
14. In order to prove its case prosecution has got examined as many as 7 witnesses out of 11 charge sheet witnesses. PW-6 the prosecutrix, PW-3 the complainant and also father of the victim, PW-4 the mother of the victim girl, PW-2 Sunitha Kumari, WPC who recorded the 161 statement of the victim at the instruction of Investigating Officer, PW-1 Dr. Jagannath who examined the accused and issued report as per Ex.P1 and PW-7 the Investigating Officer are the material witnesses in the present case.
15. As already discussed in supra there is no dispute with respect to age of the victim girl. The POSCO Act applies to the present case. The presumption under Section 29 of the Act is available to the prosecution. With this background, on going through the case of the prosecution stage by stage and if evidence of the material witnesses is evaluated, the truth will 13 Spl.C.C.80/15 come out. At the first instance, the presence of the accused on spot is the crucial point in the present case. Secondly, identity of the accused is another material point. Thirdly the aggravated sexual assault committed by the accused on PW-6, of which also involves the sexual intention of the accused.
16. With respect to the presence of the accused on spot, the evidence of PW-4 the mother of the victim, PW-6 the victim girl is very material. According to prosecution there is also another witness, i.e., CW-6 who had seen the accused on spot. He is not examined on prosecution side. Is there any material as to the presence of the accused on spot which is essential to connect him with alleged charges. PW-6 is the first person who has to speak about the presence of the accused on spot. Thereafter, PW-4 mother of the victim girl had seen the accused on spot after PW-6 had shown him by identifying this is the person who committed aggravated sexual assault on her.
17. The learned counsel for the accused has vehemently argued that the oral testimony of PW-4, 6 and also PW-3 the 14 Spl.C.C.80/15 complainant are contradictory to case of the prosecution with respect to the place of occurrence. It is also further argued by him that as per prosecution accused was caught red handed, but if a person has really committed the criminal act, immediately he would disappear from spot. It is also further argued by him that there is no clarity in the case of the prosecution that with respect to the apprehension of the accused whether he was handed over by the complainant and publics to the police or by the staff of Kumaraswamy Layout Police Station appointed by PW-7. This makes the case of the prosecution suspicious. This is the sum and substance of arguments on accused side.
18. It is quite natural that stereo type recorded evidence cannot be anticipated that too from the child witness aged about 10 years. PW-6 victim has unequivocally stated before the court that was the afternoon, one uncle called her stating that he wanted to take measurements of her clothes and touched her whole body, he was taking by holding her hands, 15 Spl.C.C.80/15 then she came running back by shouting. She is subjected to cross-examination on defence side. In the cross also she has clearly stated "when she was nearby her house, he took her and she escaped from him by shouting, after she came near her house, she had seen him near the building under construction speaking to someone on cell phone. At page No.3 of her cross-examination the learned counsel for the accused made specific suggestion that accused had not been to nearby her house, she has flatly denied this suggestion. Her oral testimony corroborates the prosecution with respect to the presence of the accused on spot at the time of the incident. At the time of her evidence she has recognized the accused.
19. PW-4 is another material witness to speak about the presence of the accused on spot. Even she has also stated after she came to know about the incident from Pw-6 she asked her to show him, then PW-6 took her to the building under construction, publics gathered, she contacted CW-6 Sayed Babu who is her relative, the publics and CW-6 went 16 Spl.C.C.80/15 inside, he was brought out side, then PW-6 identified him he is the person none else. PW-6 also identified the accused behind the screen shown to her during trial.
20. There is also other supportive evidence to the oral testimony of PW-4 and 6. As per case of the prosecution PW-3 was also at home at that time, immediately after the incident PW-3 with PW-4 was taken by PW-6 to the building. But, as per PW-3, 4 and 6 he had come to the spot at the end. But, there are other materials available on record to show the presence of the accused on spot at the time of the incident. As per prosecution he was assailed by the publics when he was caught hold from the building under construction and identified by the victim girl. This aspect is admitted by accused during the course of recording the 313 statement. Question No.7 is that victim had shown him who was in the building, CW-6 and the publics brought him outside, victim girl had identified him, then the publics started assailing him. When this question was put to him he has stated "¸ÁªÀðd¤PÀgÀÄ £À£ÀUÉ ºÉÆqÉzÀgÀÄ, £À£ÀßzÉãÀÆ 17 Spl.C.C.80/15 vÀ¦à®è, G½zÀzÀÄÝ ¸ÀļÀÄî" This admission of the accused would clearly evidence his presence on spot at that time. According to him he was assailed by the publics, but there was no fault on his part. Whether he had committed the offence or not is to be seen later. At the first instance, his presence on spot is very material. So from his own admission his presence on spot is also established by the prosecution.
21. There is also another material aspect of which proves his presence on spot. According to prosecution and also as per the admission of the accused publics assailed him after victim girl had shown him. He suffers some injuries due to the assault. As per the prosecution he was arrested at 5.15 p.m., he was also sent to hospital for medical examination on the same day evening. As per Ex.P1, the medical report issued by PW-1 Dr. Jagananth he was examined at 7.00 p.m., on 22.11.2014. He received the requisition at 6.45 p.m., from the Police Inspector, one K.S. Suresh, Head Constable accompanied the accused. As per oral testimony of PW-1 and also as per 18 Spl.C.C.80/15 Ex.P1 the medical report, two injuries are found on the body of the accused. One is abrasion over back of right elbow 3 x 2 cms, another is abrasion over back of left elbow 2 x 1 cms. There is specifically mentioned "these injures are fresh and ante-mortem in nature". I have already mentioned in supra about the timings of the incident, reporting the incident to the police, timings of the arrest of the accused and also timings of examination of the accused. Ex.P1 is corroborated by admission of the accused that he was assailed by the publics. It is not at all the defence on accused side that he was assailed by the publics elsewhere, not on spot. No such suggestion has been made in the evidence of any prosecution witnesses. Ofcourse, there are two defence taken on accused side. One is total denial and another is in order to escape from making payment of two months salary to accused who was employee under PW-3. There is nothing found on record to substantiate this aspect. However, I will discuss on this point at later stage. From the aforesaid oral evidence of PW-1, 4 and 6, from Ex.P1 and the admission by accused it is 19 Spl.C.C.80/15 established beyond reasonable doubt that accused was on spot at the time of occurrence.
22. Now, the next question arises as to identity of the accused. As narrated in supra PW-6 had identified the accused who was behind the screen in open court. During the course of her evidence before the court she recognized him. As per her oral testimony she herself had shown the accused who was in the building under construction, to PW-4 and others. She had identified him immediately after the incident. There was no time gap. Even he was immediately arrested. Ofcourse, there is little discrepancy found in the evidence of PW-3 and 4 with respect to handingover the accused by the publics to the police or apprehension of the accused by the police. As per prosecution the incident was immediately reported to the police. PW-7 says that police station is not far away from the place of occurrence. PW-4 has also identified the accused. She had also seen the accused immediately after the incident when PW-6 had shown him. Therefore, there is no necessity of 20 Spl.C.C.80/15 conducting the identification parade. Even before the court PW-4 and 6 have firmly identified the accused that he is the person who committed the sexual assault. Even it is also corroborated by PW-2 Sunitha Kuamri, WPC who recorded the 161 statement of PW-6. As per case of the prosecution by that time accused was brought to the police station. That is found in her evidence. PW-7 also reiterated the same. It is not the defence that it is not accused who committed the aggravated sexual assault. Their defence is as mentioned in supra. However, PW-6 the victim girl and PW-4 mother of the victim girl had identified the offender, who is said to have committed aggravated sexual assault. PW-6 is not 3 - 5 years girl, but 10 years old, at that time she was studying in 3rd standard. Therefore, there is nothing found to disbelieve her version with respect to identity of the accused.
23. Now, the question arises whether accused had committed aggravated sexual assault on PW-6 with sexual intention. Though there are two charges they are one and the 21 Spl.C.C.80/15 same. One is aggravated sexual assault punishable under Section 9(m) r/w Section 10 of POSCO Act. Another is under Section 354-A of I.P.C.
Section 7 of POSCO Act provides the definition of sexual assault. It is better to reproduce as under:
"Sexual Assault - Whoever, with sexual intent touches the vagina, penis, anus or breast of the child or makes the child touch the vagina, penis, anus or breast of such person or any other person, or does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault".
Section 9 of POSCO Act provides aggravated sexual assault.
24. When the offence laid down under Section 7 of POSCO Act has been committed on the child below 12 years of age it attracts Section 9(m) of the Act as it becomes aggravated sexual assault.
22 Spl.C.C.80/15 "Section 9(m) provides when sexual assault is committed on the child below 12 years".
25. Section 354-A of I.P.C. provides sexual harassment and punishment for sexual harassment. The relevant portion of Section 354-A pertaining to the present case reads as under:
"Section 354-A a man committing any of the following acts.
i) Physical contact and advances
involving unwelcome and explicit sexual
overtures; or
ii) A demand or request for sexual
favours; or."
26. On the plain reading of Section 7 of POSCO Act and Section 354-A of I.P.C there involved the physical contact without penetration, with sexual intention. In order to attract these offences at the first instance whether the ingredient of offence under POSCO Act is made out is to be looked into. In order to attract Section 9(m) r/w Section 10 of POSCO Act, the sexual assault by the accused on the victim girl is the first and foremost point. As per the prosecution accused was touching 23 Spl.C.C.80/15 all over the body of the victim. That is found in the oral testimony of victim girl and also in the evidence of her mother.
In the present case there is no eyewitness to the offence of sexual assault committed by the accused. The eyewitness account could only be rendered by victim and none else.
However, she testified the sexual assault by the accused. With this background her entire evidence is read as a whole would clearly disclose the commission of sexual violation on the victim. In the chief-examination itself, she has stated "DUÀ ªÀÄzsÁåºÀßzÀ ¸ÀªÀÄAiÀĪÁVvÀÄÛ , DUÀ M§â CAPÀ¯ï §AzÀÄ £À£ÀߣÀÄß PÀgÉzÀ£ÀÄ. §mÉÖAiÀÄ ªÉĵÀgïªÉÄAl£ÀÄß vÉUÉzÀÄPÉƼÀî®Ä ªÉÄʪÉÄïɯÁè PÉÊAiÀiÁr¹zÀ£ÀÄ. £À£Àß PÉÊAiÀÄ£ÀÄß »rzÀÄPÉÆAqÀÄ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃUÀÄwÛzÀÝ£ÀÄ."
27. In the cross-examination the suggestion was made on defence side whether accused touched her head, she has clearly stated he did not touch her head, but her body. At page No.4 of her cross-examination specific question was put by the 24 Spl.C.C.80/15 learned counsel for the accused and same was answered by the victim in clear terms. It is better to reproduce here.
"¥Àæ±ÉßB D CAPÀ¯ï ¤ªÀÄä ªÉÄÊAiÀÄ£ÀÄß AiÀiÁªÀ eÁUÀzÀ°è ªÀÄÄnÖzÀÝ?
¸ÁQë GvÀÛgÀB £ÉÃZÀgïPÁ¯ï ªÀiÁqÀĪÀ eÁUÀª£À ÀÄß PÉʬÄAzÀ ªÀÄÄnÖ vÉÆÃj¸ÀÄvÁÛg.É £À£Àß §mÉÖ ªÉÄðAzÀ¯Éà ªÀÄÄnÖgÀÄvÁÛ£É."
The aforesaid relevant portion of her chief and also the cross examination evidences the sexual violation committed by the accused on the victim girl. Ofcourse, the minor discrepancies found in her evidence. As per the case of the prosecution he was touching her body inside the building under construction. Ofcourse, victim girl has stated "that there was none on the street, she was standing in front of her house i.e., nearby the steps in the ground floor. Her house is in the first floor, then accused came there, started touching her whole body by stating that he would take measurement of her clothes for his daughter, holding the hands he was taking her towards the building under construction, when they were in front of the 25 Spl.C.C.80/15 building she escaped from him". In the chief-examination she has stated he touched her body by stating to take measurement of her clothes in front of her house. In the cross-examination she has clearly stated that he touched her vagina on the dress. As per the case of the prosecution she has also stated before the learned Magistrate while recording her 164 statement "that accused touched her vagina". Now the question arises whether it attracts Section 9(m) r/w Section 10 of POSCO Act. As already stated in supra the learned counsel for the accused has argued that touching the vagina is not found either in First Information Report or in the complaint, but it is exaggerated by the victim while giving the 164 statement and also evidence before the court. I do not find any substance in the arguments addressed by the learned counsel for the accused. For the simple reason that contents of her 164 statement were never put to the victim. It is needless to state that the 161 statement does not constitute substantive evidence. It can only be used as previous statement for the purpose of either corroborating its maker or for contradicting 26 Spl.C.C.80/15 him and in such case the previous statement cannot be used unless the attention of the witness has first been drawn to those parts by which it is proposed to contradict the witness. Likewise the statement recorded under Section 164 of Cr.P.C. by the learned Magistrate also cannot be referred to PW-6 for contradiction. It can also be used for contradiction and corroboration of witness who made it. But, that was not referred to witness. Under the circumstance, it cannot be stated that victim went on making improvements. On this point I have relied ruling reported in AIR 2010 SC 1894 (Utpal Das and another Vs. State of West Bengal), wherein the Hon'ble Apex Court has held :
"(A) Criminal P.C. (2 of 1974), Ss. 154, 164 - Evidence Act (1 of 1872), S.3 Penal Code (45 of 1860), S. 376 FIR - Does not constitute substantive evidence - However, can only be used as a previous statement for purposes of either corroborating its maker or for contradicting him - And in such a case, previous statement cannot be used unless attention of witness has first been drawn to those parts by which it is proposed to contradict the witness -
Attention of witness victim of rape not drawn to contents of FIR which were not in conformity with her evidence - Statement of victim in cross-
27 Spl.C.C.80/15 examination which was not stated by her in FIR - Cannot be used for contradicting her - Cannot be said that she wet on making improvements."
Therein the Hon'ble Supreme Court held statement of victim in cross-examination which was not stated by her in First Information Report cannot be used for contradicting her and cannot be said that she went on making improvements.
28. In the present case, victim girl has specifically stated before the Magistrate that accused touched her vagina and even before the court at the time of trial she has reiterated the same thing. Merely because she has not specifically stated while giving the 161 statement that he touched her vagina does not tantamount improvements made either in the 164 statement or in oral evidence before the court. She has stated in the 161 statement that accused was touching her whole body. She has clearly referred to act of the accused that he was extending his hands on her whole body. When her version is very specific in the 164 statement and also in the 28 Spl.C.C.80/15 verbal statement before the court such statement of the victim cannot be discarded for the reasons that:
Section 7 of POSCO Act recognizes "any other act with sexual intention which involves physical contact without penetration is to be sexual assault".
Section 7 consists of 3 parts as below:
i) The first part of Section 7 deals with "touching the vagina, penis, anus or breast of the child".
ii) The second part; "makes the child touch the vagina, penis, anus or breast of such person or any other person" and
iii) The third part; "does any other act with sexual intent which involves physical contact without penetration".
As per Section 161 statement of PW-6 and as per complaint at Ex.P2, it falls within purview of later part of Section 7 (3rd part). As per 164 statement and her verbal statement before the court at the time of trial falls within the square of first part of Section 7 of POSCO Act. As already stated in supra that her oral testimony before the court and her 29 Spl.C.C.80/15 statement in 164 statement recorded by the learned Magistrate to the extent of accused touched her vagina does not amount to improvements made by her. Therefore, viewed from any angle it falls within the purview of Section 7 of POSCO Act which is relating to definition of sexual assault. Ofcourse, before jumping to the conclusion that it attracts Section 7, it is necessary to look into, intention of the accused in touching the body of the victim. The manner in which he behaved is already discussed. The touching of body is of two ways. One is with affection, or another is in sexual way. It is necessary to look into the conduct and surrounding circumstances.
29. The sexual intention of the accused can be gathered from his conduct and surrounding circumstances. As per the defence taken on accused side, he was employee under PW-3 father of the victim girl, since PW-3 had to make the payment of 2 months salary to him, he has been falsely implicated in the present case. But, nowhere it is found on record to 30 Spl.C.C.80/15 substantiate that accused was employee under PW-3 at any point of time.
30. As per the prosecution case he had been to that area on that day to take his wages from Mason near Gana Apartments. There is also no piece of evidence to show that accused knows the carpentry work. PW-3 is Timber Merchant which makes it very clear that accused is stranger either to victim or to family of PW-3. The same suggestion was put to PW-3 and PW-4, they have out rightly rejected that accused was employee under PW-3. PW-5 Mehaboob Nawaz is one of the employees working under PW-3 as could be seen from his oral evidence. In his evidence also that suggestion was made, he also denies the same. There is no piece of evidence to show that he was working under PW-3.. Under the circumstance, there was no scope for him to show affection towards victim girl by touching her body. As already discussed in supra on defence side the learned counsel made specific suggestion whether accused touched her head, she said 'No', 31 Spl.C.C.80/15 but her vagina. This is one of the strong piece of evidence to draw inference about the intention of the accused.
31. It is not defence on accused side that accused is a tailor by profession. By stating to take measurement of her clothes he was touching the body of the victim. That is the case of the prosecution. According to prosecution his wife gave birth to baby one week back prior to the incident. He had no daughter of the victim's age. Then, question of taking measurement of the cloth of the victim girl does not arise at all. Because of his sexual intention he touched her body by placing his hands on all over the body. Ofcourse, the preponderance of probability is to be seen. Victim girl has clearly stated there was none on the road at that time he was taking her towards building under construction by holding her hands. The conduct of the accused itself depicts his intention to have committed the sexual assault on her. I am not finding any improbability from the statement of the victim. Her testimony is supported by her mother. Merely because she has stated that he touched her 32 Spl.C.C.80/15 body when she was in front of her house in the ground floor and thereafter he was taking her towards building under construction by holding her hands does not amount to major contradiction of which go to root of the matter. She is the child witness of 10 years old. The evidence of child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny. The children may be vulnerable and susceptible to be swayed by what others tell and the child witness is an easy pray to tutoring and therefore their evidence must be evaluated carefully and with greater circumspection. It is equally well settled that if satisfied that the testimony of the child witness is a voluntary expression of what transpired and is an accurate impression of the same, no corroboration of the testimony is required. The Supreme Court has repeatedly ruled that there is no rule of practice that the evidence of a child witness needs corroboration and stated that conviction can be based on it. It is only as a rule of caution and prudence that the court may require that it would be desirable to have corroboration from 33 Spl.C.C.80/15 other dependable evidence. Trivial discrepancies found in oral evidence cannot be read in isolation. From oral statement of victim very particularly her verbal statement in cross- examination led on defence side, her 164 statement which is corroborated by her verbal evidence is sufficient to connect the accused with alleged charges. No material is on record that she had been tutored. In this aspect suggestion was made on defence side, but she negated.
32. The oral testimony of PW-6 so far as concerned to sexual violation by the accused is corroborated by PW-4. The learned counsel for the accused has argued that the building under construction is in 3rd Cross, house of the accused is in 2nd Cross. It does not discredit the testimony of PW-6 or PW-4. As per the say of victim girl also he was taking her towards building under construction. PW-4 in her cross-examination at page No.3 as stated that in two minutes she can go to that place from her house. She has also specifically stated in her chief-examination that the victim girl had taken her to the 34 Spl.C.C.80/15 building and had shown the place where the accused was. The evidence of PW-4 and 6 is enough to gather the sexual intention of the accused. It can also be inferred from the conduct of the accused and surrounding circumstances. In cross-examination at page No.3 PW-6 has specifically stated nobody was in front of her house. In the ground floor nobody was residing. Under the circumstances, the minor contradictions of which are quite natural in the evidence of the child witness does not defeat the case of the prosecution. Ofcourse, PW-3 has stated that he did not directly enquire his daughter, but learnt from his wife. It is also not fatal to the case of the prosecution case.
33. The evidence of PW-6 is corroborated by PW-2 WPC who recorded her 161 statement. She reiterated the case of the prosecution. She has stated the victim stated before her that accused took her by stating that he wanted to take the measurement of her clothes, he touched all over the body. Her evidence also corroborates the prosecution that accused 35 Spl.C.C.80/15 sexually exploited the victim girl by way of touching her whole body. The learned counsel for accused has argued that recording of 161 statement by PW-2, WPC who is below the rank of Police Sub Inspector violates Section 24 (1) of POSCO Act, so that cannot be based. It is pertinent to note the defect in investigation does not discard the statement/testimony of victim girl. It does not take away the prosecution case. I do not find any force in that contention.
34. PW-5 Mehaboob, ofcourse has admitted in his cross examination that for the last two years he has been working under PW-3. That is not the ground to reject his whole evidence that he had signed Ex.P3 near the building under construction in the 3rd Cross. As per his evidence on receiving the message about the incident he rushed to the spot. The police drew the mahazar and took his signatures. His evidence also corroborates the case of the prosecution.
35. I have already discussed about the charge under Section 9(m) r/w Section 10 of POSCO Act. In order to attract 36 Spl.C.C.80/15 offence of sexual assault, sexual intention is the essential ingredient and physical contact without penetration is another ingredient of Section 7. I have discussed in supra about the 3 parts of Section 7 of POSCO Act. The latter part "if any other person does any other act with sexual intent which involves physical contact without penetration is said to commit sexual assault".
Physical contact without penetration
means
i) with bodily contact; involving a
lot of bodily contact or
aggression
ii) involving touching; tending to
touch people or involving
touching, especially in an
affectionate or sexual way.
Here is no affection, of which could be gathered from the conduct and surrounding circumstances, but it is only with the sexual intent.
37 Spl.C.C.80/15
36. Section 354-A also involves the physical contact and advances involving unwelcome and explicit sexually overtures amounting to sexual harassment. The testimony of victim girl is found to be credible. It is also corroborated by evidence of her mother PW-4. Same is also strengthened by the evidence of PW-2 and PW-7 the official witness. Testimony of victim girl is found to be reliable and inspires confidence.
37. In the cross-examination of PW-7 on defence side made one suggestion to the accused at page No.5:
i) "that it is the complainant who assailed accused, accused had been to the police station to lodge a complaint against the complainant. But a false case has been registered against accused".
There is also another suggestion made:
ii) "that complainant had to pay two months salary to the accused".
38 Spl.C.C.80/15 PW-7 has specifically denied that accused was working under the complainant and also he denies the aforesaid suggestions made by the learned counsel for the accused. The aforesaid 1st suggestion has not at all been made in the cross- examination of other witnesses.
38. From the evidence of victim girl, her mother Pw-4, her father PW-3, PW-2 who recorded her 161 statement, the 164 statement at Ex.P4, Ex.P1 the medical report relating to accused, the medical report at Ex.P7 with respect to victim girl taken to hospital for medical examination with an history of sexual assault by the accused, it becomes very clear that accused had touched her body with sexual intention. It falls not only in latter part of Section 7 (does any other act with sexual intent which involves physical contact without penetration), but also in the first part of Section 7 (with sexual intent touches the vagina). Section 7 is the definition clause of sexual assault. Section 9 is aggravated form of offence under Section 8 (punishment for sexual assault under Section 7 ). It 39 Spl.C.C.80/15 is an undisputed fact that the victim girl is below 12 years then it attracts Section 9(m) of POSCO Act. The charges under Section 354-A also involves the same ingredients (physical contact involving explicit sexual overtures) of which could be gathered from various circumstances. The admission by accused that he was assailed by publics, injury marks on him also establishes his presence on spot. From these circumstances and testimony of PW-2, 4, 6 and 7 the charge against the accused is proved by prosecution. There is nothing to implicate the accused unnecessarily for the case like this nature. Though there are some discrepancies found in the evidence of prosecution witnesses they are not material contradictions of which defeats whole case of the prosecution. From the evidence of the aforesaid prosecution witnesses, conduct of the accused and surrounding circumstances the prosecution has established the guilt of the accused for charges of aggravated sexual assault.
40 Spl.C.C.80/15
39. As discussed in supra, Section 29 of the Act provides presumption as to offences under Section 7 and also Section 9 of this Act. Though the presumption is in favour of prosecution, it can be rebutted by referring to prosecution evidence and there is no requirement for the accused to present any independent evidence to rebut presumption. Whenever any law prescribes that the court shall presume the existence of culpable mandatory stage or to draw a presumption regarding commission of any offence, unless contrary is proved, the onus to prove the contrary undoubtedly shifts upon the accused. However, it does not discharge the prosecution of its duty to first establish and prove the facts, the existence of which can only lead to drawing of any such compulsory presumption or legal presumption by the use of the expression "shall presume". The prosecution in the present case has put forth convincing, reliable, corroborative and satisfactory evidence. The ingredients of Section 7 are established by prosecution. As the victim girl is under 12 years of age it attracts Section 9(m) r/w Section 10 of POSCO Act 41 Spl.C.C.80/15 which is aggravated form of Section 7 r/w Section 8 of POSCO Act and it also attracts Section 354-A of I.P.C. Now onus is shifted upon accused to rebut presumption under Section 29 of Act. But, no iota of evidence is brought on record by accused to rebut the presumption. The accused defended by stating that he has been falsely implicated by PW-3 to escape from making payment of two months salary. But, bald defence has not been established. The accused has failed to prove on record to suggest that he did not commit the act complained of. Accused is found guilty of offence under Section 9(m) r/w Section 10 of Protection of Children from Sexual Offence Act, 2012 and also under Section 354-A of I.P.C. Hence, I hold point No.1 in the Affirmative.
40. POINT NO.2: In view of my above discussion and findings, I proceed to pass the following:
ORDER Accused is found guilty of the offence punishable under Section punishable under Sections 9(m) r/w 42 Spl.C.C.80/15 Section 10 of Protection of Children from Sexual Offence Act, 2012 and under Section 354-A of Indian Penal Code.
To hear regarding sentence.
(Dictated to the Stenographer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 23rd day of September, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.