Bangalore District Court
State By Malleshwaram Police vs Karthik on 2 December, 2016
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH-55)
Dated this the 29th day of November 2016
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
SPL.C.C.NO.549/2014
COMPLAINANT State by Malleshwaram Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Karthik,
Son of Thangavelu,
Aged 21 years,
Residing at No.34, 1st Cross, 1st Main,
Sanjeevappa Colony, Mathikere,
Bangalore.
(By Sri.N.Viswanatha and Sri.Shankar Naik-Advocates)
1. Date of commission of offence 02.09.2014
2. Date of report of occurrence of 02.09.2014
the offence
3. Date of arrest of accused 07.09.2014
4. Date of release of accused 19.11.2014
[court bail]
2 Spl CC No.549/2014
5. Period undergone in custody 2 Months and 12 days
by the accused
6. Date of commencement of 6.5.2015
evidence
7. Date of closing of evidence 11.4.2016
8. Name of the complainant Ramachandra Rao
9. Offences complained of against Secs. 363, 366, 376 of IPC and
accused Sec.5(L) r/w Sec.6 of POCSO Act,
2012
10. Opinion of the Judge The accused is found guilty
of the offences punishable under
Sec.376 of IPC and under
Sec.6 of POCSO Act, 2012.
The accused is acquitted of
the offence punishable under
Sec.366(A) of IPC.
The accused shall undergo
rigorous imprisonment for a
period of 10 years and to pay a
fine of Rs.2,000/- for the offence
punishable under Sec.6 of
POCSO Act, 2012. In default of
payment of fine amount, the
accused shall undergo simple
imprisonment for a period of
Two Months.
The sentence of
imprisonment imposed in default
of payment of fine amount shall
run consecutively.
3 Spl CC No.549/2014
JUDGMENT
Police Inspector, Malleswaram Police Station, Bangalore, has submitted charge sheet in Crime No.224/2014 for the offences punishable Under Secs.363, 366 and 376 of IPC and under Sec.5(L) r/w Sec.6 of POCSO Act, 2012
2. The prosecution case briefly stated that:
The complainant Sri.Ramachandra Rao-father of the victim girl filed the complaint as per Ex.P18 [copy marked as Ex.P9] on 2.9.2014 before the Yeshwanthapura Police Station alleging that, on 2.9.2014 at about 8 A.M., his daughter-victim girl who was studying in Vidya Mandir College, Malleswaram left the house for going to college, but, did not return. Inspite of efforts made by them, they did not trace-out the whereabouts of the Victim girl.
3. On the basis of the complaint lodged by the complainant about the missing of his daughter- victim girl in Yeswhanthapura Police Station, the Yeshwanthapura Police have registered a case in Cr.No.336/2014 as per FIR-Ex.P19 for the offence punishable under Sec.363 of IPC. Thereafter, that on 6.9.2014, the accused and the Victim girl traced out at Tamilnadu and produced before the PI of Yeshwanthapura Police Station as per Ex.P21, later, the PI of Yeshwanthapura Police Station has inserted Secs.366(A) and 376 of IPC and Secs.3, 4, 7 and 8 of POCSO Act, 2012 against the accused and thereafter, on the ground of jurisdiction, the said case was transferred to Malleswaram Police Station. The Police Inspector of Malleswaram Police Station, Bangalore, after receipt of the case 4 Spl CC No.549/2014 file from Yeshwanthapura Police, again registered a case in Cr.No.224/2014 as per FIR-Ex.P22 against the accused for the offences punishable under Secs. 363, 366(A) and 376 of IPC and under Secs.3, 4, 7 and 8 of POCSO Act, 2012. Thereafter, criminal law was set in motion. The Investigating Agency commenced the investigation. The police recorded the statement of the victim girl, she was sent for medical examination and also her Statement recorded under Sec.164 of Cr.P.C before the Learned Magistrate, spot mahazar conducted in two places, the accused was also sent for medical examination, statement of the witnesses were recorded, articles were sent to FSL and after completion of the investigation formalities, charge-sheet has been filed.
4. The accused is on bail and he is represented by the counsel of his choice. After appearance of the accused, the copies of the prosecution papers [charge-sheet] was given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5. After hearing the learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in-
office has framed the Charge on 1.4.2015 for the offences punishable under Secs. 366(A) and 376 of IPC and under Sec.5(L) r/w Sec.6 of POCSO Act, 2012 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed trial.
6. The prosecution in order to bring home the guilt of the accused has examined in all 19 witnesses as PWs-1 to 19 out of 5 Spl CC No.549/2014 the total 24 witnesses as shown in charge-sheet and got marked 24 documents as per Exs.P1 to P24. Material objects are marked as per MOs-1 to12.
7. At this stage it is necessary to mention that, though in the charge-sheet, there are 24 witnesses cited, the prosecution examined only 19 witnesses. On perusal of the order sheet it discloses that CW14 and CW17- police officials who went to Tamil Nadu State, Mavanandal Grama and conducted the spot mahazar and CW16-Police constable who took the accused to M.S.Ramaiah Hospital for medical examination and therefore these 3 witnesses . were given up by the prosecution as repetition. CW5 and CW8 are the residents of Tamil Nadu. Inspite of repeated issue of summons and warrants to them they could not be secured. My learned predecessor-in-office has rejected the prayer made by learned Public Prosecutor to give one more opportunity to secure the aforesaid witnesses (CWs-5 and 8) and dropped CWs-5 and 8.
8. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C is recorded. The accused has denied the incriminating evidence found in the evidence of prosecution witnesses and his defence is that of total denial and he claimed that he is innocent and further stated that he and the Victim girl were friends and both of them are talking each other, he belonged to Christian community and she is Hindu and therefore, her father not liked both of them talking together and in order to separate them, false complaint lodged, further it is stated that he did not commit sexual intercourse with her.
6 Spl CC No.549/2014However, the accused did not choose to lead any evidence in support of his defense.
9. Heard the learned Public Prosecutor and the learned counsel for the accused. Perused the records. Both sides have relied upon the authorities/decisions in support of their arguments. The learned Public Prosecutor has relied upon the following decisions:
(1) 2009(1) Crimes 111 (SC) State of UP vs. Manojkumar. (2) 2006 (4) Crimes 281 (SC) Yadla Srinivas Rao Vs.State of Andhrapradesh.
(3) 2008 (3) Crimes 5 (SC) Nehru @ Jawahar Vs. State of Chattishgarh.
(4) AIR 2010 Supreme Court 1894 Utpal Das & Anr. Vs. State of West Bengal.
(5) AIR 2013 Supreme Court 3077 Md.Iqbal & Anr. Vs. State of Jharkhand.
(6) 2013 Cril.L.J 194 State of U.P Vs. Munesh (7) AIR 1996 Supreme Court 1393 State of Punjab Vs. Gurmit Singh and others.
(8) 2007 (3) Crimes 115 (SC) Ramkripal S/o Shyamlal Charmakar Vs. State of Madhya Pradesh.
(9) 2010 Cri.L.J 1655 Ram Singh Vs. State of HP. (10) 2010 Cri.L.J 4282 Satpal Singh Vs. State of Haryana (11) 2009 Cri.L.J 4133 (SC) Rajinder Vs. State of HP.7 Spl CC No.549/2014
The learned defence counsel has relied on the following decisions:
(1) 2014 (5) KCCR 528 Mohamed Naveed Ahmed Vs. State by Kalasipalya Police Station, Bangalore (2) AIR 2011 Supreme Court 715 Alamelu and another Vs. State-Represented by Inspector of Police
10. After hearing the arguments of learned Public Prosecutor and the learned defence counsel and as per the Charge leveled against this accused, following Points do arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 2.9.2014, the accused with an intention to seduce the victim girl-PW4 to have illegal intercourse with another person and induced her to come with him and thereby committed an offence punishable under Sec.366(A) of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that accused on 3.9.2014 knowing that the victim is a minor girl had sexual intercourse with her forcibly without her consent and thereby committed an offence punishable under Sec.376 of IPC?
3. Whether the prosecution further proves beyond reasonable doubt that the accused having had sexual intercourse committed aggravated penetrative sexual assault repeatedly on the victim girl knowing that the victim girl is a minor, repeatedly and thereby committed an offence as defined under Sec.5(L) of POCSO Act, 2012 and punishable under Sec.6 of POCSO Act, 2012?
4. What Order?8 Spl CC No.549/2014
11. My findings on the above points are as under:
Point No.1: In the NEGATIVE Point Nos. 2 and 3: In the AFFIRMATIVE Point No.4: As per the final order, for the following:
REASONS
12. According to the prosecution, that on 2.9.2014 at about 3 P.M., at 8th cross bus stop, Malleswaram, Bangalore, when the victim girl came to meet the accused, the accused with an intention to seduce to have illicit intercourse with her, took her to Kanyakumari and on 3.9.2014 the accused by tying the yellow thread to the victim girl and on that night the accused had sexual intercourse on three times with her knowing that she was a minor girl without her consent and thereby the accused has committed the offence of rape as also aggravated penetrative sexual assault. Hence, the accused has committed the offences as per the charge leveled against him.
13. The burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution has relied upon the evidence of PWs-1 to 19. The nature of the witnesses examined by the prosecution are as under:
Pw.1 A.Srinivasa Rao- witness to the Spot mahazar drawn at Bengaluru from where the victim girl was kidnapped.
Pw.2 Dr.Basappa.S.Hugar who deposes about the medical examination conducted on the accused 9 Spl CC No.549/2014 Pw.3 Srinivas Prasad-Police constable deposes about taking of the seized articles for medical examination to FSL.
Pw.4 Victim girl Pw.5 Ramachandra Rao-father of the victim girl Pw.6 Pushpa-mother of the victim girl Pw.7 Bharathi Babu Doraiswamy- Principal of Vidya Mandir,
Independent Pre-University College, Bengaluru deposes about the issuing of Certificate certifying the date of birth of the victim girl.
Pw.8 Shravani-classmate of the victim girl Pw.9 Byrappa-Head Constable who deposes about the tracing of the accused and the victim girl at Tamilnadu State, Mavanandal Grama.
Pw.10 Dr.Mamtha who deposes about the medical examination conducted on the victim girl.
Pw.11 Soubhagya.H-Woman Police Constable who deposes about taking the victim girl to M.S.Ramaiah Hospital, Bangalore for medical examination PW.12 Ranganath- witness to the Spot mahazar drawn at Tamil Nadu state from where the accused and the victim girl were traced PW.13 Bavitha.N.M-Sub-Inspector of Police who deposes about receipt of the copy of the complaint as per Ex.P9 and the original complaint as per Ex.P18 PW.14 Nijalingappa-ASI- deposes about taking the accused for medical examination to M.S.Ramaiah Hospital PW.15 Venkatesh.T-PSI- deposes about producing the accused before the court and taking the accused to Velur District, Jinji Taluk, Mavanandal Grama where the accused has committed the offence 10 Spl CC No.549/2014 PW.16 Chidambaram- Uncle of the accused deposes about the accused and the victim girl staying in his house at Sindhe Grama, Tamil Nadu PW.17 Nagaraj-Circle Inspector-SBC Police Station, Bangalore, deposes about registering of FIR as per Ex.P22 and conducting further investigation PW.18 K.L.Krishna- Police Inspector deposes about the apprehending of the accused PW.19 Shehnaz Fatima-Scientific officer-FSL-Bangalore deposes about medical examination of the seized articles and issuing of FSL Report.
14. In this case, the defence attacked the prosecution case mainly on the following 3 grounds so as to say that the story of the prosecution is false:
(1) victim girl is not a minor and she was major at the time of incident;
(2) there is no abduction from the accused and the Victim girl herself went with the accused;
(3) there was consensual sexual intercourse from the victim girl and thereby neither Sec.376 of IPC nor Sec.6 of POCSO Act, 2012, attracted.
15. As the accused has disputed the age of the victim girl, this court has to see whether the prosecution has proved the age of the victim girl is below 18 years.
In so far as age of the victim girl is concerned, the prosecution has relied upon the evidence of PW7 and the document 11 Spl CC No.549/2014 Ex.P10. Learned Public Prosecutor submitted that, in this case, PW7 namely Bharathi Babu Doriaswamy being the Principal of Vidya Mandir College, Malleshwaram, Bangalore deposed that at the request of the Letter of the Police, she issued Certificate attesting the date of birth of the victim girl is 12.3.1997, as per Ex.P10. Therefore, learned Public Prosecutor submitted that evidence of PW7 and Ex.P10 may be relied upon to accept the Victim girl was a minor. I have gone through the evidence of PW7 and Ex.P10. On going through Ex.P10, it is the Letter issued by the Principal-PW7 stating that as per the entry made in their College Records, the date of birth of the victim girl is 12.3.1997.
16. On the other hand, the learned defence counsel argued that said School Records cannot be looked into, because Ex.P10 is not authenticated document and it was written in the school while taking admission of the candidate. Therefore he argued that the said evidence cannot be accepted to determine the age of the victim girl. During the course of cross-examination of PW7, the learned defence counsel put suggestion to her that the office staff will write records when the students get admission in the college. That suggestion is admitted by PW7. The learned defence counsel categorically contended that in this case the prosecution has not produced the cogent evidence to prove the age of the victim girl to show that she was a minor at the time of incident and therefore, he argued that the victim girl is a major. In that regard, the learned defence counsel has relied upon the decision reported in AIR 2011 Supreme Court 715, wherein it is observed that:
12 Spl CC No.549/2014"Date of birth mentioned in transfer certificate would have no evidentiary value unless person, who made entry or who gave date of birth is examined".
17. It is true that on perusal of the evidence of the prosecution, the prosecution except by producing the evidence of PW7 and the document Ex.P10, has not produced any other authenticated document to show the age of the victim girl.
18. In so far as determination of the age of the victim girl is concerned, Sec.34(2) of POCSO Act, 2012 provides that:
"If any question arises in any proceeding before the Special Court whether a person is a child or not, such question shall be determined by the Special Court after satisfying itself about the age of such person and it shall record in writing its reasons for such determination".
In this case, the defence at the time of submission of arguments on merits, brought to the notice of this court that the prosecution has not proved that the age of the victim girl is below 18 years. Before framing the charge i.e., when the stage of HBC, the said point regarding age of the Victim girl not raised. Whatever it be, in so far as determination of age of the victim girl is concerned, Rule 12 of Juvenile Justice Act (Care and Protection of Children) Rules, 2007 provides procedure to be followed in determination of age of the rape victim. Rule 12(3) of the said Act reads as under:
"In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or. as the case may be, the Committee by seeking evidence by obtaining-
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;13 Spl CC No.549/2014
(ii)The date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a Corporation or a Municipal authority or a panchayat".
In the present case, the birth certificate of the victim girl obtained from the College i.e., from the Principal of the College produced by the prosecution. Moreover, during the course of arguments, the learned Public Prosecutor submitted that, the Xerox copy of the SSLC Marks card of the victim girl is available in the records and it may be taken note of by this court.
19. To the said arguments, the learned defence counsel submitted that the said document is only Xerox copy and the prosecution did not make any efforts to get the original of the said document and mark the same as an exhibit and therefore the said document cannot be reliable. As reply to the said arguments, learned Public Prosecutor submitted that, SSLC Marks card is a public document and the court can take note of the same. I have gone through the said document i.e., SSLC Marks card of the victim girl. The date of birth of the victim girl is 12.3.1997, PW7 issued Certificate Ex.P10 wherein the date of birth of the victim girl is shown as 12.3.1997 and the incident happened on 2.9.2014 and thereby, on the date of incident, the victim girl was aged 17 years 5 Months i.e., below the age of 18 years.
14 Spl CC No.549/201420. This court has come across the following decisions while reading the Journals with regard to the proof of age of the rape victims:
(i) State of Madhya Pradesh Vs. Anoop Singh (Cril.Appeal No.442/2010), wherein it is observed that:
"To resolve the controversy over the age of a rape victim in the event of a discrepancy in the birth certificate and the school certificate, Hon'ble Supreme Court held that:
"Rule 12(3) of the Juvenile Justice Act (Care and Protection of Children) Rules, 2007 is applicable in determining the age of the victim of rape".
(ii) In Mahadeo S/o Kerba Maske Vs. State of Maharashtra and another (2013) 14 SCC 367, wherein it was held that, "Rule 12(3) of Juvenile Justice Act (Care and Protection of Children) Rules, 2007 is applicable in determining the age of the victim of rape".
(iii) Ashwani Kumar Saxena Vs. State of M.P AIR 2013 SC 554, the Hon'ble Supreme Court categorically stated that:
"Courts cannot look into the correctness of the documents adduced, but must accept them at face value".
21. In the present case, the school record is very much available and PW7- Principal, Vidya Mandir College, Malleshwaram, Bengaluru has deposed regarding the date of birth of the victim girl and issued Certificate Ex.P10 and further there is no 2nd document available/placed on record differing the date of birth of the victim girl from the 1st document to say that there is 15 Spl CC No.549/2014 discrepancy in the date of birth of the victim girl and therefore, this court has relied upon the evidence of PW7 and Ex.P10. Further, also taking note of the Xerox copy of the SSLC Marks card of the victim girl, which was taken by the Investigating Officer during the course of investigation, available on record.
22. On going through the provisions of Sec.12(3) of Juvenile Justice Act (Care and Protection of Children) Rules, 2007, observations made in the aforesaid three decisions, this court by accepting the evidence of PW7 and Ex.P10, is of the opinion that the age of the victim girl was below 18 years at the time of the alleged incident and accordingly the point raised by the defence that the victim girl was major at the time of incident, turned down and rejected.
23. POINT NO.1:- This court has framed charge against the accused for the offence punishable under Sec.366(A) of IPC. I have gone through the provisions of Sec.366(A) of IPC, Sec.366(A) of IPC reads as under:
"Procuration of minor girl-Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine".
In the present case, the prosecution has not placed any evidence to show that the accused enticed the Victim girl to force 16 Spl CC No.549/2014 her to illicit intercourse with another person. In the absence of materials to show that, the victim girl was subjected to illicit intercourse with another person, except the accused, Sec.366(A) of IPC will not attract. Therefore, this court is of the opinion that the prosecution has failed to prove the guilt of the accused that he has committed the offence punishable under Sec.366(A) of IPC. Accordingly, I answer POINT NO.1 IN THE NEGATIVE.
24. POINT NOS.2 AND 3: Consideration of these Points are based on the same facts and evidence and therefore, to avoid repetition, these Points are taken together for discussion.
25. According to the prosecution, the accused knowing fully well that the Victim girl was a minor, enticed her and had taken her to Tamilnadu and kept in his grandfather's house and committed rape on her more than once. Therefore, prosecution contended that, the accused has committed the offences punishable under Sec.376 of IPC and under Sec.6 of POCSO Act, 2012. In order to prove the charge leveled against this accused, the prosecution has relied upon the evidence of PW1 to PW19 and documents as per Exs.P1 to P24 and MOs-1 to 12.
26. Before appreciating the evidence, it is better to have a glimpse of the evidence given by all prosecution witness. For the convenience reference, the evidence of the complainant-PW5, Victim girl-PW4 and her mother PW6 taken up.
17 Spl CC No.549/201427. PW5-[CW1]Ramachandra Rao father of the victim girl deposes that he scolded his daughter PW4 with regard to talking with the accused at the time of immersion of Ganesh Idol. On the next day morning, he came to know that his daughter did not return to the house and inspite of search for her, she was not traced-out, and accordingly, he gone to Yeshwanthapura Police Station and lodged the complaint on 2.9.2014 as per Ex.P9. Thereafter on 6.9.2014, Yeshwanthapura police told him that his daughter traced out and accordingly, he along with his family members went to Yeshwanthapura Police Station wherein, his daughter and the accused were there and on enquiry, his daughter told that, on 2.9.2014, the accused enticed her and took her to Tamilnadu Temple and married her under threat and later he took her to his grand-father's house, wherein he committed rape on her against her will, later the accused threatened her not to disclose the said fact to anybody and asked her to write a letter that she herself voluntarily went with the accused, thereafter the victim girl is taken to the hospital for medical examination.
28. PW4-[CW2] victim girl deposes that her house is situated at Mathikere, Bengaluru and in her house, herself, her brother Naveen, her father and her mother are residing, in the year 2014, she was studying in Vidya Mandir College, Malleshwaram, Bengaluru in I PUC, at the time her age was 17 years, she knows Karthik-accused herein, when she was studying in 9th standard in M.S.Ramaiah School at M.S.Ramaiah Nagar, she used to come to her friend's house namely Jhanvi so as to learn Maths from her and when she was going by walk to her house, the accused used to 18 Spl CC No.549/2014 follow her, he is living in the said colony, accordingly she come in-acquaintance with the accused, one day, the accused called her and expressed his intention to talk with her and he told her that he is in love with her and out of fear, she [PW4] did not disclose the same in her house and the accused always used to come near M.S.Ramaiah School and he gave his mobile number, she used to call him and she completed her 10th standard and in the year 2014, she joined PUC in Malleswaram Vidya Mandir College and at that time also, the accused always informed her to report the college activities to him and he used to come near the college everyday and he used to accompany her till Matikere bus stop, in the year 2014, August 31st, they [PW4 and others] intended to immerse the Ganesh idol, at that time, the accused helped them, when the accused was talking with her, her father saw and later her father enquired with her and warned her, that on 2.9.2014 she informed the accused that, her father doubted about her conduct, therefore, the accused told her, if she were to go to her house, then her parents will scold her and therefore, she went with the accused, after seeing the picture at Mantri Mall, the accused brought her to Majestic and from Majestic, the accused took her to Kanyakumari, on the next day morning, they reached Kanyakumari and in Chowdeshwari Temple, the accused tied Yellow Thread to her, inspite of her resistence and thereafter the accused took her to his grand-father's house and on the said night, the accused forcibly committed rape on her on three times and on the next day morning, the accused took her to his friend's house and that on 5.9.2014 the uncle of the accused came to the accused friend's house and took them to Bangalore, the uncle of the accused and 19 Spl CC No.549/2014 the accused both of them threatened her to write a letter stating that, she herself went with the accused, thereafter, the accused brought her to Bangalore and left her near Church, Yeshwanthapura police came there and took her and the accused to Police Station and enquired her in the Police Station and thereafter they sent her [PW4] to M.S.Ramaiah Hospital for medical examination and the police asked her to show all the places wherever the accused had taken her and accordingly, she took the police to 8th Cross, Malleswaram Bus Stop, wherein the police conducted mahazar and thereafter on 10.9.2014, she was produced before the Magistrate wherein she has given her statement.
29. PW6- [CW7] Pushpa-mother of the victim girl deposes similar to the evidence of PW5.
30. PW1-[CW3] A.Srinivas Rao who is an independent witness deposes that, on 6.9.2014 in the evening at about 6.30 P.M., he and another Srinivsa Rao were called by Yeshwanthpura Police with regard to conducting mahazar in connection with the rape committed by the accused on the victim girl. Accordingly, the victim girl took the police along with PW1 and another witness to the place of incident i.e., BMTC Bus Stop footpath, 8th Cross, Malleswaram, the police did mahazar in the said place as per Ex.P1 and also taken the photographs of the said place as per Exs.P2 and P3.
31. PW2 [CW12]-Dr.Basappa.S.Hugar deposes that on 6.9.2014 in between 2.15 P.M. to 3.15 P.M., he conducted medical 20 Spl CC No.549/2014 examination of the accused and given Report as per Ex.P4 and during the course of his medical examination, he has seized the articles i.e., the clothes of the accused as per MOs-1 to 6 as per Articles Invoice Ex.P5 and sample seal as per Ex.P6.
32. PW3-[CW19] Srinivas Prasad- Police Constable deposes that, on 29.9.2014, as per the instructions of the Police Inspector, he collected the clothes of the victim girl and the accused and the articles taken by the Doctor during the course of medical examination of the victim girl and the accused and produced them before the Police Inspector along with the Report as per Ex.P7.
33. PW8-[CW9] Shravani friend of the victim girl deposes that on 2.9.2014 at about 2.15 P.M., the victim girl told her that, she has to purchase books and accordingly she [PW8] went away and in the evening, the parents of the victim girl came to her house and enquired about the victim girl did not return to the house from the college and she came to know that, her [victim girl] father lodged a complaint.
34. PW9-[CW18] Byrappa-Head Constable, deposed that on 7.9.2014 as per the instruction of the Police Inspector, himself, PSI, CW22, CW14 and CW17 had gone to the place where the accused took the victim girl i.e., Mavandal Village, Tamilnadu State along with the accused wherein the accused took them to his grand-father's (Keshavan's) Govindana's house and told that, he kept the victim girl in the said house and the police prepared 21 Spl CC No.549/2014 mahazar as per Ex.P11 and also took the photographs as per Exs.P8, P12 and P13.
35. PW10-[CW11] Dr.Mamtha deposes that on 6.9.2014 at about 2 P.M., WPC Soubhagya brought the victim girl aged 17 years with a requisition and with history of sexual assault on the victim girl, she examined the victim girl and gave Report as per Ex.P17, during the medical examination, she collected the articles of the victim girl and also other articles i.e., vaginal swab, vaginal smear, pubic hairs and sent them for FSL examination as per Article invoice Ex.P15 and sample seal as per Ex.P16, she identified the articles which are marked as per MOS-7 to 12, after medical examination of the victim girl, she opined that, there is evidence of recent sexual intercourse.
36. PW11-[CW15] Soughabya.H-WPC deposes that on 6.9.2014, as per the directions of the Police Inspector, she took the victim girl along with her mother to M.S.Ramaiah Hospital, Bengaluru for medical examination and after completion of the medical examination, she brought back the victim girl and produced before the Police Inspector.
37. PW12- [CW6] Ranganath said to be the witness to the mahazar at Tamilnadu as per Ex.P11. PW12 turned hostile to the case of the prosecution and was cross-examined by the prosecution. In the cross-examination, nothing worth is elicited from PW12 to support the case of the prosecution.
22 Spl CC No.549/201438. PW13- [CW21] Bhavitha.N.M-Sub-Inspector deposes that on 2.9.2014, in the night at 9 P.M., the complainant Ramachandra Rao came to Yeshwanthapura Police Station and lodged a complaint as per Ex.P9, original complaint is marked as Ex.P18. On the basis of the said complaint, she registered a case and sent FIR as per Ex.P19, she recorded the statement of Shravani-friend of the victim girl, she deputed her subordinate staffs for tracing out the victim girl, that on 6.9.2014, uncle of the accused produced the accused and the victim girl before the Police Station and as per the oral instructions of Police Inspector, she recorded the statement of the victim girl, on the same day night, she gone to the place i.e., 8th Cross, Malleswaram Bus Stop, Bengaluru, from which place the accused kidnapped the victim girl and conducted mahazar in the presence of CWs-3 and 4 as per Ex.P1 and thereafter, she handed over the case records to CW23 for further investigation.
39. PW14-[CW20] Nijalingappa-ASI, deposes that on 7.9.2014, at the instructions of the Police Inspector, he had taken the accused to M.S.Ramaiah Hospital for medical examination and thereafter he brought back the accused and produced before the Police Inspector.
40. PW15- [CW22] Venkatesh.T, PSI, deposes that, on 7.9.2014, as per the instructions of Police Inspector, himself, CW17, CW18 and CW14 took the accused to police custody for 5 days from the court and on the same day, they had taken the accused to Tamil Nadu i..e, Mavandal Village, Velur District, 23 Spl CC No.549/2014 wherein the accused shown his grandfather's house wherein he had sexual intercourse with the victim girl and accordingly mahazar was conducted in the presence of CW5 and CW6 as per Ex.P11 and took the photographs as per Exs.P8, P12 and P13 and thereafter the accused was brought back to Bangalore and produced before the Police Inspector with the Report as per Ex.P20.
41. PW16-[CW10] Chidambaram, uncle of the accused turned hostile. However, one document is marked, as he has admitted, i.e., Ex.P21 i.e., his requisition to Police Inspector regarding production of accused.
42. PW18-[CW23] K.L.Krishna-Police Inspector deposes that on 6.9.2014 after receipt of the records, he sent requisition to the Court to include the offence of POCSO Act, 2012 and thereafter he took up further investigation. He sent the victim girl to medical examination to M.S.Ramaiah Hospital along with requisition, on the same day, uncle of the accused namely CW10-Chidambaram brought the accused and produced before him, he arrested the accused and recorded his voluntary statement, in his voluntary statement, the accused told that, he committed sexual intercourse with the victim girl and the accused was sent for medical examination through CW20 and CW16 to M.S.Ramaiah Hospital along with the requisition, CW21 after examination of the victim girl, produced her before him and he directed CW21 to conduct spot mahazar in the place from where the accused kidnapped the victim girl, accordingly, CW21 conducted spot mahazar as per Ex.P1, after completion of the medical examination, the accused 24 Spl CC No.549/2014 produced before him, he sent the victim girl to record the statement under Sec.164 of Cr.P.C, on 7.9.2014, he recorded the statements of CW20, CW15 and CW16, thereafter the accused was taken for 5 days police custody, as per the voluntary statement of the accused, the accused took to Mavandal Village to his grandfather's house wherein Mahazar was conducted and on the same day, he [PW18] recorded the statements of CWS-14, 16 and 17, the victim girl refused to go along with her parents, therefore, she was went to Children's Home and thereafter, the case records was handed over to Malleswaram Police Station, as the offence comes within the jurisdiction of Malleswaram Police Station.
43. PW17-[CW24] Nagaraj- CPI, deposes that, he took the case records from CW23 as the case has been transferred from Yeshwanthpura Police Station to Malleswaram Police Station on the ground of jurisdiction, he registered the case in Cr.No.224/2014 and sent FIR as per Ex.P22, on 26.9.2014, he recorded the statements of CWs-1 and 7, on 30.9.2014, he sent the articles to FSL through CW19 and he received report as per Ex.P7, he collected the certificate of date of birth from the Principal of the College, where the victim girl was studying, as per Ex.P10, as investigation completed, keeping the production of FSL report, he filed charge-sheet.
44. PW19- Shehnaz Fatima-Scientific Officer, FSL, Bengaluru, deposes that on 10.10.2014, she has examined the articles as per MOs-1 to 12 and given Report as per Ex.P24.
25 Spl CC No.549/201445. On the basis of the evidence of the aforesaid prosecution witnesses PW1 to PW19, documents as per Exs.P1 to P24 and MOS-1 to 12, learned Public Prosecutor submitted his arguments that, the accused has committed the offences and this court can rely on the evidence of the Prosecution witnesses to convict the accused.
46. On the other hand, the learned defence counsel argued that, there are contradictions, inconsistencies, omissions and improvements in the evidence of the prosecution witnesses and they cannot be relied upon so as to base conviction. Further the learned defence counsel would submit:
.the Victim girl was not forcibly abducted by the accused, she herself went with the accused, she had consensual sexual intercourse with the accused;
. if the accused forcibly abducted the Victim girl, then she would have gone along with her parents after she secured, but, she refused to go along with her parents;
. the prosecution has not examined the grandfather of the accused-in the house of the grandfather, the accused said to have had sexual intercourse;
. FSL report as per Ex.P24, seminal stains not detected in the articles i.e., Material objects.
47. After hearing the arguments of the learned Public Prosecutor and the learned defence Counsel, now it is necessary to 26 Spl CC No.549/2014 scrutinize the evidence of the Prosecution witnesses cautiously by considering their version in the cross-examination.
48. In this case, the arguments of the learned defence counsel is that:
. the accused has not committed any offence of sexual intercourse with the victim girl.
. the prosecution, in this case has not proved the guilt of the accused beyond reasonable doubt, for the reason that, the victim girl herself voluntarily went with the accused, as per her own evidence before this court.
. the Spot Mahazar- Ex.P11 also not proved by the prosecution so as to say that the accused took the victim girl to his grandfather namely Keshavan's house i.e., at Tamilnadu and therein committed rape on the victim girl.
. if at all the accused had committed rape on the Victim girl, in his grandfather's house namely Keshavan, who is cited as CW8 in the charge sheet, the prosecution would have examined said CW8-Keshavan, but, the prosecution has not examined him, . even in the Medical evidence, no semen or spermatozoa detected in the articles seized during the investigation . even if there was sexual intercourse, it was only with the consent of the victim girl.
Therefore, the learned defence Counsel argued that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt that, he has committed the alleged offence.27 Spl CC No.549/2014
49. On the other hand, learned Public Prosecutor argued that in this case the victim girl herself given evidence stating that, it is the accused who has committed sexual intercourse with her and therefore, the evidence of the victim girl itself is sufficient to convict the accused. Learned Public Prosecutor further submitted that there is presumption available under Sec.29 of POCSO Act, 2012 and therefore, invoking the said presumption available, this court can hold that the accused has committed the sexual assault on the victim girl. I have gone through the provisions of Sec.29 of POCSO Act, 2012, which reads as under:
"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 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be unless the contrary is proved".
50. Now the court has to analyze the evidence of PW4-victim girl and her version in the cross-examination so as to accept her evidence to draw presumption as provided under Sec.29 of POCSO Act, 2012. The sum and substance of her [PW4] deposition is that, while she was going to school, the accused acquainted with her and he lured her and took her to Tamilnadu and committed rape on her.
51. Further, there is evidence on record to show that, the Victim girl has given her statement as provided under Sec.164 of Cr.P.C, wherein she has categorically stated before the Learned Magistrate that, the accused has committed rape on her.
28 Spl CC No.549/201452. The learned defence counsel during the course of arguments drawn the attention of this court with regard to several admissions in the evidence of PW4-Victim girl. He argued that, during the course of cross-examination, PW4 admitted that, the accused and herself were friends, further she admitted that, she used to telephone to the accused through her brother's mobile, further she admitted that her friendship with the accused was not liked by her parents, she also admitted that, she was not inclined to go with her parents and therefore, she [PW4] was sent to Children's Home, further she admitted that, she used to send message to the accused. Therefore, the learned defence counsel argued that, the victim girl herself went with the accused and she was not forced by the accused and she is a consenting party to the incident and therefore, the learned defence Counsel argued that the evidence of the victim girl cannot be taken into consideration so as to base the conviction.
53. Learned Public Prosecutor submitted that in this case, the Victim girl before this court and before the Learned Magistrate [Sec.164 of Cr.P.C Statement] stated that, the accused had sexual intercourse with her and the testimony of the prosecutrix can be made basis for conviction. In that regard, he has relied upon the decision reported in AIR 2013 Supreme Court 3077, wherein it is observed that:
"Uncorroborated testimony of prosecutrix- can be made basis for conviction".29 Spl CC No.549/2014
In another decision reported in AIR 1996 Supreme Court 1393, wherein it is observed that:
"Testimony of prosecutrix-Reliability- Investigating Agency not conducting investigation properly or was negligent- Cannot be a ground to discredit testimony of prosecutrix".
Further, learned Public Prosecutor has relied upon yet another decision reported in 2013 Cril.L.J 194, wherein it is observed that:
"The primary concern about devastating increase in incident of rape-Court need to be more cautious in appreciating evidence-Accused not to be let free on flimsy grounds".
54. Further in this case, the evidence of Victim girl PW4 corroborated with the evidence of her parents PW5 and PW6. Relying on the observations made in the aforesaid decisions placed by learned Public Prosecutor, this court is of the opinion that the sole testimony of the prosecutrix can be accepted to say that the accused had sexual intercourse with her.
55. In the present case, the offences complained against this accused is punishable under Sec.5(L) of POCSO Act, 2012. Therefore, presumption is available to the prosecution. When there is presumption, it is the burden of the accused to rebut the said presumption by producing contrary evidence. However in the present case, the accused has not at all produced any contrary evidence to disprove the evidence of the prosecution witnesses.
30 Spl CC No.549/201456. Further, the learned defence counsel argued that in this case, as per the medical evidence, there was no spermatozoa or semen found on the clothes of neither the victim girl nor the accused. Therefore, he submitted that, when there is absence of medical evidence i.e., detection of spermatozoa or semen on the seized articles, it cannot be said that the accused had committed the rape on the Victim girl. However, it is pertinent to note that, presence of spermatozoa or semen is not at all necessary to say that the accused had committed rape on the Victim girl, when the Victim girl is a credible witness and her evidence is trustworthy to believe. Therefore, the arguments canvassed by the learned defence Counsel that, because neither semen nor spermatozoa detected in the seized articles, the accused had not committed rape on the Victim girl, is not sustainable.
57. Further the learned defence counsel argued that, the uncle of the accused examined as PW16 not supported the case of the prosecution. PW16 is the material witness in the present case and according to prosecution, it is who [PW16] secured the Victim girl and the accused from Tamilnadu and brought to Bangalore. But, he turned hostile to the prosecution case stating that, he does not know about the securing of the accused and the Victim girl from Tamilnadu. However, on perusal of evidence of PW16, though he has not supported the case of the prosecution, during the course of evidence, he deposed that, 2 years back, he had gone to the Police Station having heard that the accused produced before the police. This shows that the accused along with the Victim girl produced before the police. Further PW16 admitted Ex.P8 and in 31 Spl CC No.549/2014 Ex.P8, he identified the accused. Ex.P8 is the photograph said to have been taken at the time of mahazar-Ex.P11 at Tamilnadu, wherein the accused had sexual intercourse with the Victim girl and PW16 identified the accused in the said photograp-Ex.P8. Further he also admitted his signature in Ex.P21 i.e., requisition letter.
58. Further the learned defence Counsel argued that, in this case, if at all the accused had committed rape on the Victim girl, in his grandfather's house namely Keshavan, who is cited as CW8 in the charge sheet, the prosecution would have examined said CW8-Keshavan, but, the prosecution has not examined him. In reply to the said arguments, learned Public Prosecutor submitted that CW8 is a resident of Tamilnadu and attempts made to secure him before the court for giving evidence , but he could not secure. Moreover, in this case, though CW8 not examined, the conducting of Mahazar-Ex.P11 in the house of CW8 are deposed by police witnesses namely PW9-Byrappa- Head Constable, PW15-Venkatesh-PSI. At this stage, it is also pertinent to note that, the prosecution examined independent witness by name Ranganath-PW12 as a witness to Mahazar to Ex.P11. Though he has not supported the prosecution case, he identified his photograph in Exs.P12, P13 and P8 said to have been taken during drawing up of Mahazar as per Ex.P11 and PW12 admitted his signature on Ex.P11. Therefore, even though the prosecution not examined CW8, it is not fatal to the case of the prosecution. Therefore, the arguments of the learned defence Counsel that CW8 not examined by the prosecution and therefore, the story of the 32 Spl CC No.549/2014 prosecution that, the accused had sexual intercourse in the house of CW8 cannot be believed, has no force.
59. Further the learned defence Counsel argued that, even if there was sexual intercourse, it was only with the consent of the victim girl. In that regard, the learned defence Counsel brought to the notice of this court with regard to the admissions of PW4 during her cross-examination. She admitted several suggestions put to her as discussed above in Para No.52 of this Judgment. However, it is pertinent to note that, the victim girl was a minor at the time of the incident. The allegation made against this accused is that, he has committed rape on the victim girl, when she was a minor. Whether the victim girl had consented for sexual intercourse or not, is not relevant and therefore, the arguments canvassed by the learned defence Counsel that the Victim girl herself had consented for sexual intercourse, cannot be acceptable. The decision relied upon by the learned defence Counsel reported in 2014 (5) KCCR 528, is in connection with the offence committed by the accused under Sec.376 of IPC. However, in the present case, the accused has been charge sheeted for the offence punishable under the POCSO Act, 2012. Therefore, the principles laid-down in the aforesaid decision i.e., the victim under the age of 16 years to 17 years, and thereby, the conviction cannot be sustainable and accordingly, the said decision will not make any help to the accused in the present case.
33 Spl CC No.549/201460. To sum up in this case, according to the prosecution case, the accused has committed the offence of rape and to prove the said offence, the prosecution has produced the evidence of Victim girl and this court has accepted her testimony which is also corroborated with the evidence of her parents-PW5 and PW6 and she also given statement under Sec.164 of Cr.P.C before the Learned Magistrate and further presumption is available to the prosecution as provided under Sec.29 of POCSO Act, 2012. Though the accused took the defence that he has not committed sexual intercourse with Victim girl, and further she herself consented for the said act, his defence cannot be accepted, because, the Victim girl is a minor and giving of consent or not is immaterial. Further the accused in this case has not placed any evidence to show that he has been falsely implicated. Though it is argued that the Victim girl and the accused were loving each other, the accused is a Christian and the Victim girl is a Hindu, her parents did not like the friendship of the Victim girl and the accused, thereby, false complaint lodged against the accused, that was not proved by the accused by placing evidence. Moreover, the Victim girl herself deposed that the accused had committed the rape and her evidence is accepted by this court, as trustworthy and further, the Doctor has given evidence that, there was recent sexual intercourse and the Victim girl deposed that, the accused has committed sexual intercourse. Therefore, the defence of the accused that he has been falsely implicated in this case, cannot be accepted.
34 Spl CC No.549/201461. On analyzing the evidence of PW-4 Victim girl, PW5 and PW6- parents of the Victim girl, evidence of Doctor-PW10 and evidence of police officials with regard to the conducting of mahazar, securing the accused, the evidences are corroborated each other and their evidence trustworthy to believe. Further, considering and accepting the evidence of prosecution witnesses, the presumption available under Sec.29 of POCSO Act, 2012, this court is of the opinion that the prosecution has proved the guilt of the accused beyond reasonable doubt that, he has committed the offences punishable under Sec.376 of IPC and under Sec.6 of POCSO Act, 2012. Accordingly, I answer POINT NOS. 2 AND 3 IN THE AFFIRMATIVE.
62. POINT NO.4: In view of my aforesaid discussions, I proceed to pass the following ORDER The accused is found guilty of the offences punishable under Sec.376 of IPC and under Sec.6 of POCSO Act, 2012 Act.
The accused is acquitted of the offence punishable under Sec.366(A) of IPC.
MOs-1 to 12 being worthless are ordered to be destroyed after the appeal period is over.
To hear regarding sentence adjourned to tomorrow i.e., on 30.11.2016 at the request of the accused.
Further, as the offence under Sec.376 of IPC and under Sec. 6 of POCSO Act, 2012, are punishable with imprisonment for more than three years, the accused hitherto on bail now taken to judicial custody and remanded.
35 Spl CC No.549/2014To hear regarding sentence by 30.11.2016.
[Dictated to the Stenographer partly and directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 29th day of November 2016).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
30.11.2016 Accused produced before me.
On behalf of the accused written submission along with copy of marks card of the accused produced and also copy of one letter said to have been written by the victim is produced.
When this court inclined to invoke provisions of Probation of Offenders Act in order to extend benefit to the accused, after hearing Learned PP, he submitted that benefit under PO Act cannot be extended to the accused, according to Section 4 of PO Act and further also relied on the principle laid down in the decision reported 2015 AIR SCW 3293= 2015(4) Crimes 257 SC in the case of State of Rajasthan Vs. Sri.Chand.
For further hearing on sentence by 2.12.2012 and further remanded to J.C 2/12/16.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
36 Spl CC No.549/20142.12.2016 Accused produced before me. The learned counsel for the accused is present and he addressed further arguments regarding imposing of sentence and produced Three decisions.
02.12.2016 ORDER REGARDING THE SENTENCE On 30.11.2016, the accused was produced before me, his father, mother, sisters are also present before this court, his advocate is also present before this court. The accused has filed written submission with regard to taking lenient view in imposing sentence on him and also produced copy of the letter said to have written by the Victim girl to him on 2.9.2014 and also produced of his copy of SSLC Marks card.
On going through the letter submitted by the accused while questioning him with regard to imposing sentence, wherein it is stated that, the parents of the accused have 3 daughters, he is the only son. One of his sister got married and the other 2 sisters have to be married, another sister's marriage had fixed, however, because the accused is involved in the present case, her marriage was broken. Now, they are in difficulty and they have no avocation to lead their life and the accused is the only person looking after their family and now if he were to be sent to jail, they will be put into miserable life.
The accused further submitted that at the time of incident, he was aged 19 years, Victim girl herself went with him, as she 37 Spl CC No.549/2014 was loving him, in that regard she has also written letter to him on 2.9.2014, because he belonged to Christian community and she is a Hindu, her parents disliked their friendship and false complaint is lodged against him. Under these circumstances, the accused prayed for taking lenient view in imposing the sentence.
On the other hand, the learned Public Prosecutor submitted that the accused has committed heinous crime on the Victim girl and doesn't deserve any leniency in imposing sentence.
After hearing the accused himself and on perusal of the SSLC Marks card of the accused, his date of birth is 29.12.1994, the incident had happened on 2.9.2014 and at that time he was aged 19 years 9 Months and not completed even 20 years and further on going through the Xerox copy of the letter dated: 2.9.2014 written by the Victim girl to the accused, and further on reading the file to dictate the Judgment, this court also noticed that the Victim girl admitted that she was in friendship with the accused since 2011 i.e., when she was studying in 9th Standard i.e., friendship of 3 years and further she also admitted that, she belonged to Hindu community and the accused belonged to Christian community.
After hearing the accused and looking into the documents produced by him and further some of the admissions made by the Victim girl with regard to her friendship with the accused and further the Victim girl at the time of the incident was aged 38 Spl CC No.549/2014 17 years and nearing to the age of 18 years, and thereby she was in the verge of attaining the age of majority, earlier to the alleged incident, the Victim girl and the accused were meeting with each other, talking with each other, under these circumstances, a thought come to the mind of this court whether the accused can be extended benefit of probation under the provisions of Probation of Offenders Act.
In so far as extending benefit of probation under the provisions of Probation of Offenders Act, to the accused, I have further heard learned Public Prosecutor. He submitted that as the present case is coming under the purview of crime against woman, benefit of probation under the provisions of Probation of Offenders Act cannot be extended to the accused.
In that regard, learned Public Prosecutor has brought to the notice of this court to a decision reported in 2015 AIR SCW 3293 [State of Rajasthan Vs. Sri.Chand]. I have gone through the said decision. In the said decision, the fact is that, the accused had committed rape on the victim aged 12 years and he was charge- sheeted for the offences punishable under Sec.376 r/w Secs.511 and 354 of IPC and it is observed that:
"Offence is heinous in nature and there is no reason for granting benefit of probation under the provisions of Probation of Offenders Act".
And further it is also observed that:
39 Spl CC No.549/2014"Any offence like outraging the modesty of a woman, benefit of probation under the provisions of Probation of Offenders Act, cannot be granted".
On the other hand, the learned defence Counsel has relied upon the following 3 decisions:
(1) AIR 2010 Supreme Court 698 Md. Monir Alam Vs. State of Bihar.
(2) AIR 2011 Supreme Court 1231 Baldev Singh and others Vs. State of Punjab.
(3) 2012 (2) Crimes 269 Radhakrishnan Vs. Inspector of Police, Villupuram.
On the basis of the observations made in the aforesaid 3 decisions, learned defence Counsel submitted that, this court can extend benefit under PO Act to the accused.
However, as per the recent decision referred to by the learned Public Prosecutor, as stated supra on this Point i.e., benefit of probation under the provisions of Probation of Offenders Act, cannot be granted to the accused involved in the cases of crime against woman, the decisions referred to by the learned defence Counsel which are all previous to 2015 decisions as referred to by the learned Public Prosecutor, cannot be taken into consideration. Therefore, this court cannot extend benefit of probation under the provisions of Probation of Offenders Act against the accused herein.
40 Spl CC No.549/2014In this case, the accused is found guilty of the offences punishable under Sec.376 of IPC and under Sec. 6 of POCSO Act, 2012.
As per the Criminal Law Amendment Act, 2013, Sec.376 of IPC, provides punishment for rape:
"(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine".
Further, on going through the provisions of Sec.6 of POCSO Act, 2012, it provides that:
"Whoever commits aggravated penetrative sexual assault, shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life and shall also be liable to fine".
Though the accused has been convicted for the offences punishable under Sec.376 of IPC and under Sec.6 of POCSO Act, 2012, on going through the provisions of Sec.42 of POCSO Act, 2012, which provides alternative punishment i.e., punishment which is greater in degree has to be considered and therefore, in this case, for awarding sentence, the offence under Sec..6 of POCSO Act, 2012 is taken into consideration, as the punishment 41 Spl CC No.549/2014 provided for the offence under Sec.6 of POCSO Act, 2012 is greater in degree.
In view of the minimum punishment provided under Sec.6 of POCSO Act, 2012, this court cannot take any lenient view in imposing lesser sentence than the minimum sentence prescribed in the provision.
However in so far as imposing fine amount is concerned, this court has taken lenient view after taking into consideration of the mitigating circumstances i.e., the accused is aged 20 years, this is his first offence, he has family background i.e., his family not having any source of income, the prosecution has not produced any documents/materials to show that, the accused is having sufficient income, movable and immovable properties and thereby he is capable of paying huge fine amount and to pay compensation to the victim girl. Under these circumstances, in the absence of any materials placed with regard to the income of the accused and his capacity to pay the huge fine amount and to pay the compensation to the Victim girl, lenient view is taken in imposing the fine amount. In the result, I proceed to pass the following:
SENTENCE The accused shall undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.2,000/- for the offence punishable under Sec.6 of POCSO Act, 2012. In default of payment of fine amount, the accused shall undergo simple imprisonment for a period of Two Months.42 Spl CC No.549/2014
The period of detention undergone by the accused in judicial custody shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
The sentence of imprisonment imposed in default of payment of fine amount shall run consecutively.
In so far as victim compensation is concerned, the complainant police is directed to file a Report with regard to the present status of the Victim girl before this court within a period of One Month from this date, so as to make recommendation to District Legal Services Authority, Bengaluru Urban District.
Office is directed to supply the free copy of this Judgment to the accused forthwith.
(Dictated to the Stenographer partly and directly on the computer, corrections carried out and then pronounced by me in the Open Court on this the 2nd day of December 2016).
[RAJESHWARI.N.HEGDE] LIV Addl., City Civil & Sessions Judge, Bangalore.43 Spl CC No.549/2014
ANNEXURE Witnesses examined for the prosecution:
Pw.1 A.Sreenivasa Rao CW3 6.5.2015
Pw.2 Dr.Basappa S Hugar CW12 12.5.2015
Pw.3 Srinivas Prasad CW19 13.5.2015
Pw.4 Likitha CW2 30.6.2015
Pw.5 Ramachandra Rao CW1 27.7.2015
Pw.6 Pushpa CW7 27.7.2015
Pw.7 Bharathi Babu Doraiswamy CW13 14.10.2015
Pw.8 Shravani CW9 6.11.2015
Pw.9 Byrappa CW18 6.11.2015
Pw.10 Dr.Mamtha CW11 1.12.2015
Pw.11 Soubhagya.H CW15 1.12.2015
Pw.12 Ranganath CW6 1.12.2015
Pw.13 Bavitha.N.M CW21 18.12.2015
Pw.14 Nijalingappa CW20 18.12.2015
PW.15 Venkatesh.T. CW22 18.12.2015
Pw.16 Chidambaram CW10 27.1.2016
Pw.17 Nagaraj CW24 27.1.2016
Pw.18 K.L.Krishna CW23 18.2.2016
Pw.19 Shehnaz Fathima CW 11.4.2016
Documents marked for the prosecution:
Ex.P1 Spot Mahazar drawn in Bangalore
Ex.P1(a) Signature of PW1
Ex.P1(b) Signature of PW13
Exs.P2 and P3 photographs
44 Spl CC No.549/2014
Ex.P4 Medical certificate of the accused
Ex.P4(a) Signature of PW2
Ex.P4(b) Signature of the accused
Ex.P5 Article Invoice
Ex.P5(a) Signature of PW2
Ex.P6 Sample seal
Ex.P6(a) Signature of PW2
Ex.P7 Report given by PW3 to the Police Inspector
regarding taking of the seized articles for medical examination Ex.P7(a) Signature of PW3 Ex.P7(b) Signature of PW17 Ex.P8 Photograph Ex.P9 Copy of the Complaint Ex.P9(a) Signature of PW5 Ex.P10 Certificate issued by the Principal, Vidya Mandir Ind.Pre- University College, Bengaluru, certifying the date of birth of the victim girl Ex.P10(a) Signature of PW7 Ex.P11 Spot Mahazar drawn in Tamil Nadu State, Mavanandal Grama.
Ex.P11(a) Signature of PW9
Ex.P11(b) Signature of PW12
Ex.P11(c) Signature of PW15
Exs.P12 and P13 Photographs
Ex.P14 Requisition sent by the PSI, Yeshwanthpura
45 Spl CC No.549/2014
Police Station, Bengaluru to PW10 to examine
the victim girl
Ex.P14(a) Signature of PW10
Exs.P15 and P16 Two sample seals
Exs.P15(a) and Signatures of PW10
P16(a)
Ex.P17 Medical certificate of the victim girl
Ex.P17(a) Signature of PW10
Ex.P17(b) Signature of PW4
Ex.P18 Original Complaint
Ex.P18(a) Signature of PW13
Ex.P19 FIR registered in Yeshwanthapura Police Station
in Cr.No.336/2014
Ex.P19(a) Signature of PW13
Ex.P20 Report given by PW15 regarding producing of
the accused
Ex.P20(a) Signature of PW15
Ex.P21 Report given by PW16
Ex.P21(a) Signature of PW16
Ex.P22 FIR registered in Malleswaram Police Station in
Cr.No.224/2014
Ex.P22(a) Signature of PW17
Ex.P23 Letter dated: 10.9.2014 regarding transfer of
the case file from Yeshwanthapura Police Station to Malleswaram Police Station on the ground of jurisdiction Ex.P23(a) Signature of PW17 Ex.P24 FSL Report dated: 9.12.2014 46 Spl CC No.549/2014 Ex.P24(a) Signature of PW19 Material objects marked for the prosecution:
MO1 Blue coloured full sleeve shirt MO2 One blue colour jeans pant MO3 One green colour short of the accused MO4 Pubic hair MO5 Swab MO6 Blood MO7 One duppatta MO8 Chudihar Top MO9 Chudidhar Bottom MO10 Panty of the victim girl MO11 Bra MO12 Pubic hair
Witness examined and documents marked for the accused: NIL.
LIV Addl., City Civil & Sessions Judge, Bangalore.47 Spl CC No.549/2014
29.11.2016 Accused is present. Heard learned P.P. with regard to clarification about Sec.366(A) of IPC.
Judgment by 3 pm. Accused is again present.
Judgment pronounced in open court:
[Vide separate detailed Judgment] The accused is found guilty of the offences punishable under Sec.376 of IPC and under Sec.6 of POCSO Act, 2012 Act.
The accused is acquitted of the offence punishable under Sec.366(A) of IPC.
MOs-1 to 12 being worthless are ordered to be destroyed after the appeal period is over.
To hear regarding sentence adjourned to tomorrow i.e., on 30.11.2016 at the request of the accused.
Further, as the offence under Sec.376 of IPC and under Sec. 6 of POCSO Act, 2012, are punishable with imprisonment for more than three years, the accused hitherto on bail now taken to judicial custody and remanded.
To hear regarding sentence by 30.11.2016.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.48 Spl CC No.549/2014
30.11.2016 Accused produced before me.
On behalf of the accused written submission along with copy of marks card of the accused produced and also copy of one letter said to have been written by the victim is produced.
When this court inclined to invoke provisions of Probation of Offenders Act in order to extend benefit to the accused, after hearing Learned PP, he submitted that benefit under PO Act cannot be extended to the accused, according to Section 4 of PO Act and further also relied on the principle laid down in the decision reported 2015 AIR SCW 3293= 2015(4) Crimes 257 SC in the case of State of Rajasthan Vs. Sri.Chand.
For further hearing on sentence by 2.12.2012 and further remanded to J.C 2/12/16.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
49 Spl CC No.549/2014 2.12.2016 Accused produced before me. The learned counsel for the accused is present and he addressed further arguments regarding imposing of sentence and produced Three Decisions. Sentence pronounced in open court: [vide separate detailed sentence] The accused shall undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.2,000/- for the offence punishable under Sec.6 of POCSO Act, 2012. In default of payment of fine amount, the accused shall undergo simple imprisonment for a period of Two Months. The period of detention undergone by the accused in judicial
custody shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
50 Spl CC No.549/2014 The sentence of imprisonment
imposed in default of payment of fine
amount shall run consecutively.
In so far as victim compensation is
concerned, the complainant police is
directed to file a Report with regard to
the present status of the Victim girl
before this court within a period of
One Month from this date, so as to
make recommendation to District Legal
Services Authority, Bengaluru Urban
District.
Office is directed to supply the free
copy of this Judgment to the accused
forthwith.
[RAJESHWARI.N.HEGDE]
LIV ADDL., CITY CIVIL &
SESSIONS JUDGE, BENGALURU CITY.
51 Spl CC No.549/2014