Bangalore District Court
Unknown vs Nagaraj on 28 July, 2016
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 28th DAY OF JULY 2016
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 580/2014
COMPLAINANT :
The State of Karnataka by
Mahadevapura Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
1. Nagaraj,
S/o. Late Neelakanthachari,
Aged about 23 years,
2. Chalapathi
S/o. Late Neelakanthachari,
Aged about 20 years,
Both are residing at
No.548, 4th Cross,
Near Chowdeshwari Temple,
2 Spl.C.C.580/2014
Kaverinagar,
Bangalore City.
[Represented by learned counsel Sri
B.Sunder,]
***
JUDGMENT
Mahadevapura Police, Bangalore City have charge sheeted the accused No.1 and 2 for offences punishable under Sections 354, 354(D) of I.P.C r/w Sec. 7 and 11 of Protection of Children from Sexual Offence Act, 2012.
2. The case of the prosecution, in brief, is as under :
CW2- and CW-3 were children under the age of 18 years in the year 2014. Accused No.1 and 2 were also residing in the same area. While CW-2 and 3 were going to the school, while CW-3 was going to the tuition also, accused No.1 and 2 used to follow them, insisting to talk with them, they had given their cell numbers, compelled to call them. On 1.9.2014 CW-2 was coming home, then accused No.1 induced for sweets, took her to his house and committed sexual assault on her by placing his hands on her breast and also on her waist. When CW-2
3 Spl.C.C.580/2014 shouted he left her and went out. CW-2 and 3 did not disclose before their parents earlier. After CW-1 father of the CW-2 insisted about her late coming from the school and also her dullness she disclosed this fact. Even on enquiry CW-3 also revealed the same. Then CW-1 had lodged a complaint against the accused No.1 and 2. On registering the case I.O drew necessary mahazars, recorded the statement of the prosecution witnesses. Accused No.1 and 2 were apprehended. After completing investigation, Investigating Officer submitted charge sheet to the Court for the aforesaid offences.
3. The charge sheet was submitted before L ACC&S Judge (CCH-51) against accused No.1 and 2. After receiving the charge sheet cognizance was taken. Thereafter, on the point of jurisdiction, it was transferred to this court. After hearing on both the sides, then Learned Presiding Officer of this court had framed the charge against accused No.1 and 2 for offences under Section 354, 354(D) of IPC and under Section 7 r/w Section 8 Protection of Children from Sexual Offence Act, 2012 and Section 11 r/w Section 12 of Protection of Children from 4 Spl.C.C.580/2014 Sexual Offence Act, 2012. Same was read over to the accused No.1 and 2. The accused persons pleaded not guilty and claimed to be tried. Hence, posted for prosecution evidence.
4. On prosecution side got examined as many as 7 witnesses as P.W.1 to P.W.7 out of 13 charge sheet witnesses and got marked the documents at Ex.P.1 to Ex.P.8. 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 No.1 and 2. Accused No.1 and 2 have denied the whole incriminating evidence against them and they have not chosen to lead evidence on their side. It was posted for arguments.
5. Heard the arguments on 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 prior to
5 Spl.C.C.580/2014
1.9.2014 accused No.1 and 2 had followed CW-2 and 3 the children while they were going to their school and also to the tuition and compelled them to contact over phone by giving cell phone number, punishable under Section 354(D) of I.P.C r/w Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012?
2) Whether the prosecution has proved beyond reasonable doubt that on 1.9.2014 at about 9.00 a.m., while she was going to her friend's house in front of Sri Krishna Temple, Cauvery Nagar, Bangalore accused No.1 forcibly took her to his house and committed sexual assault on her by placing his hands on her breast and also on her waist, punishable under Section 354 of I.P.C. r/w Section 7 r/w Section 8 of Protection of Children from Sexual Offence Act, 2012?
3) What order?
7. My findings on the above points are as under:-
6 Spl.C.C.580/2014 Point No.1) : In the negative Point No.2) : In the negative Point No.4) : As per final orders for the following REASONS
8. Point No.1:- There are two accused. As per allegation made by the prosecution there are also two victims. Accused No.1 is alleged to have had followed PW-2 while going to school. Like wise accused No.2 was also consistently following PW-7 while going to her school and also to the tuition. Accused No.1 and 2 had the intention of sexual harassment to be committed on those children. PW-2 and PW-7 are aged about 12 years as on the date of alleged incident.
9. At the first instance, the age of the victims is very material. In view of Section 2(1)(d) of the Act "Child" means any person below the age of 18 years. On going through the evidence led on prosecution side and cross-examination done on accused side there is no dispute with respect to age of PW-2 and PW-7 that they were below the age of 18 years as on the 7 Spl.C.C.580/2014 date of alleged incident. The incident occurred in the year 2014. The evidence of PW-2 was recorded on 11.1.2016. She has stated that her age was 12 years. Evidence of PW-7 was recorded on 11.7.2016. As on that date her age was 18 years. PW-4 H.R.Doreswamy- Head Master of the school in which the victims were studying during the year 2014 had issued certificate noting the date of birth only as per Ex.P5 relating to PW-2 - 1st victim, Ex.P6 relating to PW-7- another victim. As per Ex.P5 date of birth of PW-2 is 5.4.2002, as per Ex.P6 date of birth of PW-7 - 2nd victim is 19.5.2001. Accordingly they were below the age of 18 years as on the date of alleged incident. Hence, the POCSO Act applies to the case on hand. Their evidence remains unchallenged. The prosecution establishes that PW-2 and PW-7 were under the age of 18 years as on the date of occurrence.
10. Now the question arises whether presumption under Section 29 of the Act comes into play. So far as concerned to this charge levelled against accused No.1 and 2 the presumption is not available to the prosecution. Because mainly 8 Spl.C.C.580/2014 the charge has been framed under four heads, charge under first head and under fourth head are related to stalking /following the child. So that charge under two different heads for offence under Section 354 D and under Section 11 r/w Section 12 of POCSO Act have been framed separately, they are one and the same. In view of Section 42 of POCSO Act, which reads as under:-
"where an act or omission constitute an offence punishable under this Act and also under Sections 354A, 354 Bangalore 354C, 354D, then, notwithstanding anything contained in any law for the time being in force, the offender found guilty of such offence shall be liable to punish only under Section 354 of I.P.C as provides for punishment which is greater in degree"
Therefore, first and fourth charges are taken together as one point against accused No.1 and 2.
11. With this background on going through Section 29 of Protection of Children from Sexual Offence Act, 2012 it provides presumption as to certain offences:-
"Where a person is prosecuted for committing or abetting or attempting to commit 9 Spl.C.C.580/2014 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 commit the offence, as the case may be, unless the contrary is proved."
12. The first point relating to the offence alleged to have been committed by accused No.1 and 2 on PW-2 and PW-7 respectively are offences punishable under Section 354D of I.P.C r/w Section 11 r/w Section 12 of POCSO Act. In view of aforesaid Section 29 of POCSO Act the presumption laid down therein is available to prosecution when a person is prosecuted for offence under Section 3, 5, 7 and 9 of this Act. But the first point is relating to offence under Section 11 r/w Section 12 of POCSO Act. Therefore, so far as concerned to this offence the presumption does not come into play.
13. Now, the question arises whether the prosecution has proved beyond reasonable doubt that accused No.1 and 2 have committed sexual harassment on PW-2 and PW-7 respectively by way of following them repeatedly, compelling them to contact over phone, while going to school and also to the tuition.
10 Spl.C.C.580/2014
14. In order to prove its case the prosecution has got examined as many as 6 material witnesses. PW-1 Eshwar is the complainant and the father of PW-2 - the first victim. PW-2 is the daughter of Pw-1. PW-3 is the mother of PW-2.
15. PW-7 is another victim. PW-6 is the father of PW-7, PW-5 is the mother of PW-7. So far as concerned to offence alleged to have committed by accused No.1 on PW-2, evidence of PW-1 and also offence alleged to have committed by accused No.2 on PW-7, evidence of the aforesaid witnesses is very material.
16. PW-1 Eshwar is the friend of PW-6 Jafar Ali. PW-6 Jafar Ali is doing centering work. PW-1 Eshwar is doing coolie work. The house of PW-6 is nearby the house of PW-1. PW-2 daughter of PW-1, PW-7 daughter of PW-6 were going to the same school and they were going together. As per the allegation of the prosecution accused No.1 was following PW-2, accused No.2 was following PW-7. Accused No.2 insisted PW-7 to call him, he had given his number to PW-7. On this point as 11 Spl.C.C.580/2014 already mentioned in supra, the evidence of PW-1 to 6 is very material.
17. As per prosecution PW-1 Eshwar - father of PW-2 had lodged a complaint as per Ex.P1 on 8.9.2014 with respect to alleged incident taken place on 1.9.2014 and also before 1.9.2014. As per complaint accused No.1 was following PW-2 while going to the school, accused No.2 was also following PW- 7 while going to the school and also while going to the tuition. They also contacted them near the school. Accused No.1 compelled PW-2 to come to his house and he was offering sweets. PW-2 was coming late to the house from the school and also found some difference in her behaviour. By doubting the same PW-1 questioned PW-2, then she disclosed about the incident taken place on 1.9.2014 and also before 1.9.2014. Even on enquiry of PW-7 she also disclosed the same. With this back ground on going through the evidence of PW-1 he has not supported the case of the prosecution. In the chief- examination he has stated that PW-2 was studying in 7th standard during the year 2014, her daughter stated whiel they 12 Spl.C.C.580/2014 were going galata took place, whereas he got lodged a complaint. He has also further stated while PW-2 and PW-7 were coming from the school the accused were eve teasing, and they also held their hands. In the cross-examination led by the learned Public Prosecutor he went on admitting the suggestions made by him reiterating the case of the prosecution. Again in the cross-examination done on defence side he has given the statement which is very much contrary to his earlier statement. He has gone to the extent of stating in his cross-examination done on defence side he does not know the accused, who is Nagaraja, who is Chalapathi. He has categorically stated that his daughter was coming home from tuition at right time, the galata took place near school not relating to his daughter personally, but there was a mass galata taken place, he has further stated that no galata regarding personal matter of his daughter taken place. The inconsistent evidence of PW-1 is very difficult to be based to hold the guilt of the accused. I have already discussed in supra the presumption under Section 29 of the Act is not available to the prosecution so far as concerned to offence relating to point 13 Spl.C.C.580/2014 No.1 The initial burden lies upon the prosecution to establish beyond reasonable doubt. But, the evidence of complainant itself does not corroborate the prosecution case. Untrustworthy evidence of complainant is not safe to be relied upon to hold the guilt of the accused.
18. PW-2 the daughter of Pw-1 is the first victim. Her oral testimony also does not disclose anything to connect accused No.1 with alleged charge levelled against him. In her chief examination itself she has stated that she does not know the accused No.1 and 2, her signature was taken by the police, she does not know the contents therein. Though she admits the signature in the statement at Ex.P3, she does not admit her version therein. It is pertinent to note in the absence of any other materials solely based on Ex.P3 the conviction cannot be given to the accused. The oral testimony of the complainant is not corroborative. The prosecutrix has not supported the prosecution case. Even on going through the evidence of other witnesses also does not help the prosecution case as they have also not supported the prosecution. I will discuss the evidence 14 Spl.C.C.580/2014 of those witnesses in the next para itself. Under these circumstances, merely because the prosecution has put forth its case that there is statement of the victim at Ex.P3, solely based on that ground accused No.1 cannot be convicted for alleged offence.
19. Though PW-2 is subjected to cross-examination by the learned Public Prosecutor no favourable statement has been extracted from her mouth. Even the evidence of PW-3 Prabhavathi - mother of PW-2 does not suggest any incriminating statement against the accused No.1 In the chief- examination itself she has stated that she does not know the accused No.1 and 2, she has not given the statement to the police that accused no.1 and 2 had sexually harassed her daughter. In the cross-examination held by the learned Public Prosecutor she has denied all the suggestions made by him. Therefore, her evidence also does not help the prosecution in proving its case satisfactorily.
15 Spl.C.C.580/2014
20. PW-7 is another material witness to speak about the sexual activity of the accused No.1 alleged to have been committed on PW-2. PW-7 has totally denied the case of the prosecution. As per prosecution she accompanies PW-2 while going to the school and also coming from the school, during that time accused No.1 and 2 have committed the sexual harassment as mentioned in supra. But, oral testimony of PW- 7 does not reveal anything against accused No.1 and 2 to believe the case of the prosecution. Her evidence is also not helpful to the prosecution.
21. Even on going through the oral testimony of PW-5 Hajeera and PW-6 Jafar Ali parents of PW-7 their evidence also have not come to the aid of the prosecution to prove its case beyond reasonable doubt. Though PW-5 has stated in her chief-examination that she knows the accused, while PW-7 was going to the school one year back the galata took place that some one was talking to her, she had been to the house of accused No.2. Except this she has not stated about the sexual harassment said to have been committed by accused No.1 on 16 Spl.C.C.580/2014 PW-2. In the cross-examination led by the learned Public Prosecutor she has stated her daughter disclosed that accused were following her and PW-2 while coming from the school, she has denied all other suggestions made by the learned Public Prosecutor. But, in the cross-examination done on defence side she has given the statement of which is completely varied from her earlier statement. Her statement in chief-examination does not disclose the sexual harassment committed by accused No.1 on PW-2. Though she has given a stray statement in the cross- examination done by the learned Public Prosecutor concerned to the offence stated to have been committed by accused No.1 on PW-2, again in the cross-examination she has given contrary statement. She has gone to the extent of stating that since accused are from the same area since childhood she had seen them, she also used to go to their house on festival days, they also used to come to their house, accused never misbehaved with PW-2 and PW-7. Under these circumstances, the oral testimony of PW-5 also does not prove the case of the prosecution beyond reasonable doubt.
17 Spl.C.C.580/2014
22. PW-6 Jafar Ali is the father of PW-7 and friend of PW- 1 the complainant. In the chief-examination he has stated in his evidence "he does not know the accused, 6 months back one of the accused had given the cell phone number to PW-2 and PW-7, regarding that matter he had been to the house of the accused for which they made galata, hence he had lodged a complaint, but he does not know what steps were taken by the police. He has not given any statement before the police". His statement in the chief-examination suffers from material contradictions. With this background on going through his cross-examination done by the learned Public Prosecutor he has admitted that accused were following PW-2 and CW-3 while going to the school. Again in the cross-examination done by defence counsel he has given inconsistent statement of which is repugnant to the case of the prosecution. The oral testimony of PW-6 suffers from material contradictions. It does not corroborate the case of the prosecution. His contradictory statement is not safe to be believed to convict the accused No.1 that he had committed sexual harassment on her as alleged by the prosecution. The case of the prosecution is very 18 Spl.C.C.580/2014 feeble. There is no satisfactory and believable evidence. PW-2 victim herself has not supported the case of the prosecution. Even there is no other reliable evidence to believe the case of the prosecution. Under these circumstances, it is very hard to convict the accused No.1 for charges under Section 354D r/w Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012.
23. So far as concerned to accused No.2 also the same thing is found on record as in the case of accused No.1 As already stated in supra PW-2 and PW-7 the victims are the material witnesses and their evidence carry more weight. But, neither PW-2 nor PW-7 has supported the prosecution case. They have gone to the extent of stating that accused had never committed sexual harassment on them. Even on going through the oral testimony of PW-1, PW-3, PW-5 and PW-6 also I do not find the corroborative and believable evidence to draw the conviction against accused No.2 also. So far as concerned to the offence alleged to have been committed on PW-7, evidence of PW-2, evidence of PW-5 and PW-6 is very material. PW-5 19 Spl.C.C.580/2014 and PW-6 are parents of PW-7. As already discussed in supra they have not fully supported the case of the prosecution. PW-6 is stated one thing in the chief-examination, another thing in the cross-examination done by the learned Public Prosecutor and has given entirely different statement in the cross- examination of defence side of which itself would show PW-6 has not trustworthy witness. Evidence of PW-5 is not helpful to the prosecution in anyway concerned to the offence alleged to have been committed by accused No.2 on PW-7. PW-1, PW-3, Pw-5 and Pw-6 are the hearsay witnesses. PW-2 and PW-7 are the material witnesses. In the case like this nature oral testimony of victims is essential and they carry more importance than any other evidence. But, there is no support by the victims so far as concerned to the first charge levelled against accused No.1 and 2. Thus the prosecution has miserably failed to place credible, reliable and satisfactory evidence to hold guilt of the accused No.1 and 2 for offence under Section 354D of I.P.C r/w Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012. The 20 Spl.C.C.580/2014 benefit of doubt should go the accused No.1 and I hold point No.1 in the negative.
24. Point No.2:- The another charge against accused No.1 is he had committed offence under Section 354 I.P.C r/w Section 7 r/w Section 8 of Protection of Children from Sexual Offence Act, 2012.
25. There is charge framed against him under two heads one is under Section 354 of I.P.C that he had the intention to outrage the modesty of PW-2, knowingly he took away PW-2 on 1.9.2014 at about 9.00 a.m. while she was going to her friend's house, he outraged her modesty in his house by touching her breast and also waist. With this background on going through the Section 7 of Protection of Children from Sexual Offence Act, 2012 it provides sexual assault. Section 7 reads as under:
"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 21 Spl.C.C.580/2014 contact without penetration is said to commit sexual assault."
26. The charge under first head and also fourth head also one of the same as there is an allegation that accused had sexual intention, with that intention he took away PW-2 to his house by offering the sweets and placed his hands on her breast of which amounting to sexual assault/outraged her modesty. Therefore, the charges under two heads are taken in second point. I have already discussed in supra about Section 42 of POCSO Act while discussing point No.1. As per Section 42 where an act or omission constitutes an offence punishable under this Act and also under I.P.C so far as concerned to offence laid down therein, if the offender is found guilty of such offence shall be liable to be punished only under this Act or under I.P.C whichever is greater in degree. Therefore, they are taken together in second point concerned to accused No.1.
27. According to prosecution after he took way PW-2 to his house, his grand mother was in the house he had forcibly sent her outside, he touched her breast and also waist, then 22 Spl.C.C.580/2014 PW-2 shouted, he left her and went off. PW-2 is the material witness to speak on this aspect. But, she has totally denied the case of the prosecution. There is no piece of evidence on this aspect to connect the accused with alleged crime. Ofcourse, the presumption under Section 29 of the Act comes into play. This charge against accused No.1 only. He is prosecuted for offence under Section 7 of POCSO Act. Special Court shall presume under Section 29 of the Act any person who is prosecuted for offence under Section 7 of the Act has committed the offence unless the contrary is proved. It is pertinent to note this presumption is rebuttable. Hence, what is the evidence brought on record on prosecution side is also to be looked into. It is settled principle of law that accused need not to have stepped into the witness box, he can rebut the same based on the evidence on prosecution side. As mentioned in supra there is no substantive evidence on prosecution side to believe the story of the prosecution. In the cases like this nature the oral testimony of victim girl assumes more importance. The other witnesses are the hearsay witnesses. Even on going through the evidence of PW-1 to 3, 23 Spl.C.C.580/2014 PW-5 to PW-7 no satisfactory and believable evidence is forthcoming. PW-2 has denied drawing of mahazar by Police in the house of the accused No.1 and she had shown the place to the police on 9.9.2014. As already stated in supra concerned to the Ex.P3 the statement given by her, in the absence of any other evidence based on Ex.P3 only the accused cannot be convicted for offence under Section 354 of I.P.C r/w Section 7 r/w Section 8 of Protection of Children from Sexual Offence Act, 2012. There is no clinching evidence on record to show that accused had committed sexual assault on PW-2 amounting to outrage her modesty. PW-1 is complainant has not at all stated on this aspect in his chief-examination. Ofcourse in the cross- examination led by the learned Public Prosecutor he has admitted the same. Again in the cross-examination done on accused side he has given statement which is completely varied from his statement in the cross-examination led by the learned Public Prosecutor. In the cross-examination led by the learned Public Prosecutor is very much contrary to his earlier statement given in the chief examination and later statement given in the cross-examination led on defence side. Such kind of contrary 24 Spl.C.C.580/2014 statement is not safe to be based to hold the guilt of the accused No.1 for offence of sexual assault. The evidence of PW-3 Prabhavathi - mother of the victim girl does not disclose anything on this aspect. She has not supported the case of the prosecution on this aspect. Even PW-5, PW-6 and PW-7 are the hearsay witnesses. On this aspect also it does not suggest any incriminating statement against the accused No.1 to connect with alleged charge. The accused has rebutted the presumption based on the evidence available on prosecution side. In the absence of any materials accused cannot be convicted for alleged charge levelled against him. The prosecution has miserably failed to prove its case beyond reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold Point No.2 in the negative.
28. Point No.3: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused No.1 and 2 are hereby acquitted for the offence punishable under Section 354(D) of I.P.C r/w 25 Spl.C.C.580/2014 Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012.
Accused No.1 is also acquitted for the offence punishable under Section 354 of I.P.C r/w Sec. 7 r/w Section 8 of Protection of Children from Sexual Offence Act, 2012.
(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 28th day of July, 2016.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
PW.1 Eshwar
PW.2 Prosecutrix
PW.3 Prabhavathi
PW.4 H.R. Doreswamy
PW.5 Hajeera
PW.6 Jafar Ali
PW.7 Prosecutrix
26 Spl.C.C.580/2014
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION
Ex.P1 Complaint
Ex.P 1(a) Signature of PW-1
Ex.P 2 Mahazar
Ex.P 2(a) Signature of PW-2
Ex.P 3 Statement of victim u/s 164 Cr.P.C
Ex.P 4 Statement of PW-3
Ex.P 5 Birth certificate of CW-2
Ex.P 5(a) Signature of PW-4
Ex.P 6 Birth certificate of CW-3
Ex.P 7 Statement of PW-5
Ex.P 8 Statement of PW-6
LIST OF MATERIAL OBJECTS MARKED
- NIL -
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
*** 27 Spl.C.C.580/2014 28.07.2016 Judgment pronounced in the open court, operative portion of which reads as under:-
Acting under Section 235(1) of Cr.P.C. accused No.1 and 2 are hereby acquitted for the offence punishable under Section 354(D) of I.P.C r/w Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012.
Accused No.1 is also acquitted for the offence punishable under Section 354 of I.P.C r/w Sec. 7 r/w Section 8 of Protection of Children from Sexual Offence Act, 2012.
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.