Bangalore District Court
State By Vidyaranyapura Police vs Shaikh Irfan on 27 March, 2017
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS JUDGE AT
BANGALORE CITY (CCH-55)
Dated this the 27th day of March, 2017
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY.
SPL.C.C.NO.391/2014
COMPLAINANT State by Vidyaranyapura Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Shaikh Irfan,
Son of Shaik Pyaru,
Aged 20 Years,
Residing at No.42, Yelahanka Main Road,
Besides Jalli Mission,
Near Gas Bunk,
M.S.Palya, Vidyaranuapura,
Bengaluru-97.
(By Sri.A.John Bosco-Advocate)
1. Date of commission of offence 16.7.2014
2. Date of report of occurrence of 16.7.2014
the offence
3. Date of arrest of accused 17.07.2014
Date of release of accused 19.08.2014
[bail]
4. Period undergone in custody 1 Month and 2 days
by the accused
2 Spl CC No.391/2014
5. Date of commencement of 27.1.2015
evidence
6. Date of closing of evidence 23.3.2017
7. Name of the complainant Smt.Shameem Javeed-Mother of
the victim girl
8 Offences complained of Secs.506, 366, 342 and 376 of IPC
and under Sec.3 r/w Sec.4 of
POCSO Act, 2012
9. Opinion of the Judge In exercise with the powers
conferred upon me under
Criminal Procedure Code, the
accused is acquitted of the
offences punishable under
Secs. 366, 342, 376 and 506 of
IPC and under Sec.5 r/w Sec.6 of
POCSO Act, 2012
His bail bond and surety
bond obtained earlier stands
cancelled. However, the bail
bond and the surety bond
executed by the accused on
25.3.2017 in compliance with
Sec.437[A] of Cr.P.C shall be in
force for a period of 6 Months
from the date of this Judgment.
3 Spl CC No.391/2014
JUDGMENT
Police Inspector, Vidyaranyapura Police Station Bangalore, has submitted charge sheet against the accused in Crime No.209/2014 for the offences punishable Secs.506, 366, 342 and 376 of IPC and under Sec.3 r/w Sec.4 of POCSO Act, 2012.
2. The prosecution case, briefly stated:
The complainant/mother of the victim girl has lodged a Complaint-Ex.P2 dated: 16.7.2014 alleging that, her daughter/victim girl aged 17 years on that day i.e., 16.7.2014 at about 11 A.M., went out of the house, but, she did not return, the accused herein might have kidnapped her. Hence, the complaint.
3. On the basis of the said complaint, a case was registered by the complainant police in Cr.No. 209/2014 for the offence punishable under Sec.366 of IPC and under Sec.4 of POCSO Act, 2012, as per the FIR. Thereafter, criminal law was set in motion. The Investigating Agency commenced the investigation. That on 17.7.2014 the victim girl and the accused were traced out in House No.42, Yelahanka Main Road, Besides Jalli Mission, Near Gas Bunk, M.S.Palya, Vidyaranyapura, Bangalore. On enquiry, the victim girl stated that, on 16.7.2014, at about 11 A.M., the accused came near her house and called her, she went out of the house, the accused told that he will marry her, when she refused and returning back to her house, the accused dragged her and threatened her that he would kill her and her family members and saying so, took her in a bike towards Byalkere, Balaji Layout and 4 Spl CC No.391/2014 kept her in his friend's house by name Jakir and had sexual intercourse with her. After recording the statement of the victim girl, the complainant police arrested the accused on 17.7.2014. The victim girl was sent for medical examination, spot mahazar conducted at the places i.e., the factory from where the victim girl was found missing and the place i.e, Byalkere, Balaji Layout where the accused had sexual intercourse with her, the accused was also sent for medical examination and after completion of the investigation formalities, charge-sheet has been filed against the accused for the offences punishable under Secs. 366, 342, 376 and 506 of IPC and under Sec.3 r/w Sec.4 of POCSO Act, 2012.
4. The accused is on bail 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 9.12.2014 for the offences punishable under Secs. 366, 342, 376 and 506 of IPC and Sec.5 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.
5 Spl CC No.391/20146. The prosecution in order to bring home the guilt of the accused has examined in all 11 witnesses as PWs-1 to 11, out of the total 18 witnesses as shown in charge-sheet and got marked 21 documents at Exs.P1 to P21 and no Material Objects are marked.
7. At this stage it is necessary to mention that, though in the charge-sheet, there are 18 witnesses cited, the prosecution examined only 11 witnesses. CW5 to CW8, CW14, CW17 and CW18 are not examined by the prosecution. CW5-PSI who received the complaint, CW6-Head constable who traced out the victim girl and the accused, CW7-WPC who traced out the victim girl and the accused and who took the victim girl to M.S.Ramaiah Hospital for medical examination, CW8-Police constable who took the accused to M.S.Ramaiah Hospital for medical examination, CW14-Doctor who conducted medical examination of the accused, CW17-Prinicipal, of Sambhram Pre-University college, Vidyaranypura, Bengaluru, who has issued Certificate attesting the date of birth of the victim girl and CW18-Investigating Officer, were not examined by the prosecution. On perusal of the order sheet, it discloses that, inspite of issue of summons to CW5 to CW8, CW14, CW17 and CW18, they could not be secured. Therefore, learned Public Prosecutor prayed for reissue of summons to CW5 to CW8, CW14, CW17 and CW18. However, as all the prosecution witnesses turned hostile including the victim girl, therefore, summoning CW5 to CW8, CW14, CW17 and CW18 would serve no purpose and hence, prayer made by learned Public Prosecutor is rejected and 6 Spl CC No.391/2014 CW5 to CW8, CW14, CW17 and CW18 are dropped vide order dated: 23.3.2017.
8. On perusal of the prosecution evidence i..e, PWs-1 to 11, none of the prosecution witnesses deposed any incriminating evidence against the accused. Therefore, recording of Statement of the accused under Sec.313 of Cr.P.C does not arise. Hence, Statement of the accused under Sec.313 of Cr.P.C is dispensed herewith.
9. Heard the learned Public Prosecutor and the learned counsel for the accused. Perused the records
10. After hearing the arguments of learned Public Prosecutor and the learned defence counsel and as per the Charge leveled against this accused, the following Points do arise for consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 16.7.2014 the accused kidnapped the victim girl from her house and from her lawful guardianship with an intent to marry her and to have illicit intercourse or seduced her to have illicit intercourse with him and thereby committed an offence punishable under Sec.366 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that the accused by kidnapping the victim girl that on 17.7.2014 took her to the house of his friend and kept her in wrongful confinement and thereby committed an offence punishable under Sec.342 of IPC?7 Spl CC No.391/2014
3. Whether the prosecution further proves beyond reasonable doubt that the accused after wrongful confinement of the victim girl had sexual intercourse with her knowing that she is a minor and thereby committed an offence punishable under Sec.376 of IPC r/w Sec.5 r/w Sec.6 of POCSO Act, 2012?
4. Whether the prosecution proves beyond reasonable doubt that the accused threatened the victim girl with dire consequences that he would kill her and her family members, if she were to disclose the said fact to anybody and thereby committed the offence punishable under Sec.506 of IPC?
5. What Order?
11. My findings on the above points are as under:
Point Nos.1 to 4 : In the NEGATIVE Point No.5: As per the final order, for the following:
REASONS
12. POINT NOS.1 TO 4: Consideration of these Four Points are based on the same facts and evidence and therefore, to avoid repetition, these Four points are taken together for discussion.
13. According to the prosecution, that on 16.7.2014 at about 11 A.M., the accused by kidnapping the victim girl took her to his friend's house and wrongfully confined her in the said house and had sexual intercourse with her against her will and thereby he [accused] committed the offences as per the charge leveled against him.
8 Spl CC No.391/201414. The initial 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 evidences of PWs-1 to 11. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Victim girl
Pw.2 Shameem Javeed- complainant as well as the Mother of
the victim girl
Pw.3 Mohammed Javeed Altaf-Father of the victim girl
Pw.4 Shukurbaba- witnesses to Spot Mahazar-Ex.P5
Pw.5 Nadeem
Pw.6 Wasim- Witnesses to spot Mahazar-Ex.P8
Pw.7 Syed Muheeb
Pw.8 Mohammed Israq Altaf- Brother of the victim girl
Pw.9 Mubasira- Maid working in the house of the victim girl
PW.10 Jagadish Singh Bayal-owner of House No.197, Byalakere,
Balaji Layout, the place where the accused brought the victim girl and had sexual intercourse with her PW.11 Mohammed Abeed- Tenant in the house No.197, Byalakere, Balaji Layout.
15. Before appreciating the evidence, it is better to have a glimpse of the evidence given by all witnesses of the prosecution..
16. The sum and substance of the evidence of PW1-victim girl is that:
The accused herein was her college-mate in PUC, her date of birth is 27.11.1996, last year i.e., 2014 [PW1 has given 9 Spl CC No.391/2014 evidence on 27.1.2015] during the Ramzan Month i.e., July, one day, she had been to her friend's house without informing her parents and returned late night to her house, in the meanwhile her parents lodged a complaint-Ex.P2. She further deposes that, the accused herein had never taken her on his motor cycle to Balaji Layout and he had not confined her in the house of Jakir and he did not commit rape on her. Therefore, prosecution treated this witness as hostile and cross-examined her. During the course of cross-examination, her Statement is marked as Ex.P1.
17. PW2-complainant as well as the mother of the victim girl deposes that, on 16.7.2014, during Ramzan, her daughter/victim girl went out of the house and did not return, so she [PW2] lodged a Complaint-Ex.P2, after lodging the complaint, the victim girl came late in the night to the house, so on the next day, she [PW2] went to the Police Station and informed the police that her daughter arrived to home, when the police questioned her [PW2] as to whether she has doubt on anybody, she told the name of the accused, but, she has not given any statement before the police, hence, learned Public Prosecutor treated this witness as hostile and cross-examined her. During the course of cross-examination, her Statement is marked as Ex.P3.
18. PW3- Father of the Victim girl deposes similar to the evidence of PW2. He also turned hostile to the prosecution case, During the course of cross-examination, his Statement is marked as Ex.P21.
10 Spl CC No.391/201419. PW4 and PW5- Mahazar Witnesses suppose to depose about drawing up of Mahazar in the place wherein the Victim girl was kidnapped. They turned hostile to the prosecution case. Through them Notices issued by the police to stand as panchas marked as Ex.P4 and Ex.P6 and Spot Mahazar marked as Ex.P5.
20. PW6 and PW7- Mahazar witnesses suppose to depose about drawing up of Mahazar in the place wherein the accused is said to have committed rape on the Victim girl. They turned hostile to the prosecution case. Through them Notices issued by the police to stand as panchas marked as Exs.P7 and P9 and Spot Mahazar marked as Ex.P8.
21. PW8- brother of the Victim girl suppose to depose about the alleged incident, but, he did not support the case of the prosecution. His Statement under Sec. 161 Cr.P.C before the complainant police is marked as Ex.P.11 and Form No.29 executed by him is marked as Ex.P10 and his Further Statement marked as Ex.P16 and Form No.29 executed by him is marked as Ex.P17.
22. PW9 was the maid in the house of the Victim girl. She suppose to depose about the alleged incident. She also turned hostile to the case of the prosecution. Her Statement under Sec.161 Cr.P.C is marked as Ex.P13 and Form No.29 executed by her is marked as Ex.P12 and her Further Statement marked as Ex.P14 and Form No.29 executed by her marked as Ex.P15.
11 Spl CC No.391/201423. PW10- Owner of the house in which the alleged rape had taken place. He [PW10] has stated that, he did not let out the house to CW16-Mohamed Abeed. Thereby, he turned hostile to the prosecution case. His Statement is marked as Ex.P19 and Form No.29 executed by him marked as Ex.P18.
24. PW11- Mohammed Abeed said to be the tenant in the house of PW10, but, he also turned hostile to the case of the prosecution, his Statement marked as Ex.P20.
25. In this case, on perusal of the prosecution witnesses, none of the witnesses, including the Victim girl and the parents of the Victim girl supported the case of the prosecution. Absolutely there are no evidence available so as to say that, the accused had committed the alleged offence. Therefore, the accused is entitled to an acquittal. Accordingly, I answer POINT NOS. 1 TO 4 IN THE NEGATIVE.
26. POINT NO.5: In view of my aforesaid discussions, I proceed to pass the following ORDER In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is acquitted of the offences punishable under Secs. 366, 342, 376 and 506 of IPC and under Sec.5 r/w Sec.6 of POCSO Act, 2012 12 Spl CC No.391/2014 His bail bond and surety bond obtained earlier stands cancelled. However, the bail bond and the surety bond executed by the accused on 25.3.2017 in compliance with Sec.437[A] of Cr.P.C shall be in force for a period of 6 Months from the date of this Judgment.
In so far as victim compensation is concerned, as the Victim girl and her parents completely turned hostile to the case of the prosecution, this court is of the opinion that, she [Victim girl] is not entitled to victim compensation.
[Dictated to the Stenographer directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 27th day of March, 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Victim girl CW4 27.1.2015
Pw.2 Shameem Javeed CW1 27.1.2015
Pw.3 Mohammed Javeed Altaf CW11 27.1.2015
Pw.4 Shukurbaba CW2 22.3.2017
Pw.5 Nadeem CW3 23.3.2017
Pw.6 Wasim CW9 23.3.2017
Pw.7 Syed Muheeb CW10 23.3.2017
13 Spl CC No.391/2014
Pw.8 Mohammed Israq Altaf Cw12 23.3.2017
Pw.9 Mubasira CW13 23.3.2017
PW.10 Jagadish Singh Bayal CW15 23.3.2017
PW.11 Mohammed Abeed CW16 23.3.2017
Documents marked for the prosecution:
Ex.P1 Statement given by the victim girl before the complainant police under sec.161 of Cr.P.C Ex.P2 Complaint dated: 16.7.2014 given by PW2 Ex.P2(a) Signature of PW2 Ex.P3 Further statement of PW2 before the complainant police dated: 30.7.2014 Ex.P4 Police notice dated: 17.7.2014 to PW4 Ex.P4(a) Signature of PW4 Ex.P5 Spot Mahazar conducted in the house of the complainant situated at House No.52, Adithya Nagar, 9th Main road, 9th Cross, Vidyaranyapura, Bangalore Ex.P5(a) Signature of PW4 Ex.P5(b) Signature of PW5 Ex.P6 Police Notice dated: 17.7.2014 to PW5 Ex.P6(a) Signature of PW5 Ex.P7 Police Notice dated: 18.7.2014 to PW6 Ex.P7(a) Signature of PW6 Ex.P8 Spot Mahazar conducted in House No.197, Soladevanahhalli, Byalkere, Balaji Layout, 6th Cross, Bangalore, belonging to CW15 14 Spl CC No.391/2014 Ex.P8(a) Signature of PW6 Ex.P8(b) Signature of PW7 Ex.P9 Police Notice dated: 18.7.2014 given to PW7 Ex.P9(a) Signature of PW7 Ex.P10 Form No.29 under Sec.170 0f Cr.P.C dated: 18.7.2014 to give evidence by PW8 in the court Ex.P10(a) Signature of PW8 Ex.P11 Statement dated: 18.7.2014 given by PW8 before the complainant police under Sec.161 of Cr.P.C Ex.P12 Form No.29 under Sec.170 0f Cr.P.C dated: 18.7.2014 to give evidence by PW9 in the court Ex.P12(a) Signature of PW9 Ex.P13 Statement dated: 18.7.2014 given by PW9 before the complainant police under Sec.161 of Cr.P.C Ex.P14 Further statement dated: 30.7.2014 given by PW9 before the complainant police Ex.P15 Form No.29 under Sec.170 0f Cr.P.C dated: 30.7.2014 to give evidence by PW9 in the court Ex.P15(a) Signature of PW9 Ex.P16 Further Statement of PW8 dated: 30.7.2014 given before the complainant police Ex.P17 Form No.29 under Sec.170 0f Cr.P.C dated: 30.7.2014 to give evidence by PW8 in the court Ex.P17(a) Signature of PW8 Ex.P18 Form No.29 under Sec.170 0f Cr.P.C dated: 6.8.2014 to give evidence by PW10 in the court Ex.P18(a) Signature of PW10 15 Spl CC No.391/2014 Ex.P19 Statement of PW10 dated: 6.8.2014 under Sec.161 of Cr.P.C before the complainant police Ex.P20 Statement of PW11 dated: 6.8.2014 given under Sec.161 of Cr.P.C before the complainant police Ex.P21 Statement of PW3 dated:18.7.2014 given under Sec.161 of Cr.P.C before the complainant police Witness examined and documents marked for the accused: NIL LIV Addl., City Civil & Sessions Judge, Bangalore.16 Spl CC No.391/2014
27.3.2017 While reading the file on 27.3.2017 for dictating the Judgment, it is noticed that, though Ex.P4 marked on 27.1.2015, the bench clerk did not prepared the list of Exhibits and therefore, in the evidence of PW4 again Ex.P4 marked. Therefore, the Ex.P4 previously marked is now marked as Ex.P21.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
Accused is present.
Judgment pronounced in open court:
[ Vide separate detailed Judgment] In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is acquitted of the offences punishable under Secs. 366, 342, 376 and 506 of IPC and under Sec.5 r/w Sec.6 of POCSO Act, 2012 His bail bond and surety bond obtained earlier stands cancelled. However, the bail bond and the surety bond executed by the accused on 25.3.2017 in compliance with Sec.437[A] of Cr.P.C shall be in force for a period of 6 Months from the date of this Judgment.17 Spl CC No.391/2014
In so far as victim compensation is concerned, as the Victim girl and her parents completely turned hostile to the case of the prosecution, this court is of the opinion that, she [Victim girl] is not entitled to victim compensation.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.18 Spl CC No.391/2014