Bangalore District Court
State By Madivala Police vs Gajendra on 22 October, 2016
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS JUDGE
AT BANGALORE CITY (CCH-55)
Dated this the 21st day of October 2016
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
Spl.C.C.No.81/2015
COMPLAINANT State by Madivala Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Gajendra,
Son of Gangadharappa,
Aged 21 years,
Residing at Anjanappa Compound,
12th Cross, Teachers Colony,
Venkatapura,
Bangalore.
Permanent address at:
Nagaraghatta Village,
Eachaghatta Post,
Talya Hobli, Hlalkere Taluk,
Chitradurga District.
(By Sri.M.Girish-Advocate)
1. Date of commission of offence 5.11.2014
2. Date of report of occurrence of 8.11.2014
the offence
2 Spl.CC No.81/2015
3. Date of arrest of accused 10.11.2014
4. Date of release of accused 01.04.2015
[ court bail]
5. Period undergone in custody 4 months and 21 days
by the accused
6. Date of commencement of 6.10.2015
evidence
7. Date of closing of evidence 20.2.2016
26.9.2016
8. Name of the complainant Smt.Sudha Ganesh
9. Offences complained of Sec.376 of IPC and Secs. 5(m), 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.5(m] r/w Sec.6 of POCSO
Act, 2012.
The accused is sentenced to
undergo Rigorous imprisonment
for a period of 10 years and
fine of Rs.5,000/-.
3 Spl.CC No.81/2015
JUDGMENT
Police Inspector, Madiwala Police Station, Bangalore, has submitted charge sheet in Crime No. 1563/2014 against the accused for the offences punishable under Sec.376 of IPC and Secs. 5(m), 6 of POCSO Act, 2012
2. Prosecution case briefly stated that:
The complainant Smt.Sudha Ganesh filed a complaint on 8.11.2014 as per Ex.P5 alleging that she is working as staff nurse in Narayana Hrudalaya Hospital. Her husband is also working as a security supervisor in the same hospital. They have 2 children i.e., a daughter by name Preethi aged 4 ½ years and a boy aged one year. Since they were busy in their work, she was not able to comminite with her daughter. That on 7.11.2014 at about 9.30 P.M., after food, she sat with her daughter to talk about her school and friends. While she was talking about her food Noodles which she like very much, she told that not to leave her alone and go to shop for buying noodles, because 3 days before when she went to the shop to buy noodles, at that time, her neighbour Gajendra Anna came inside her house and forced the child to keep his penis inside her mouth and also kept his penis inside her mouth. She told her [complainant] not to leave her alone again and the said fact was informed to the husband of the complainant and finally they filed the complaint to take necessary action against the said person.4 Spl.CC No.81/2015
3. After filing the complaint on 8.11.2014, a case was registered in Cr.No.1563/2014 for the offences punishable under Secs. 3, 4 of POCSO Act, 2012 and Sec.376 IPC and thereafter Investigating Agency commenced the investigatin. The victim girl was sent for medical examination, spot mahazar conducted, statement of the witnesses recorded and the accused was secured on 10.11.2014. He was also sent for medical examination and the articles seized during the medical examination were sent to the FSL. After obtaining FSL report and after completion of the investigation formalities, charge-sheet has been filed against the accused for the offences punishable under Sec.376 IPC and under Secs. 5(m), 6 of POCSO Act, 2012.
4. The accused is on court 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 Charge on 24.7.2015 for the offences punishable under Sec.376 of IPC and under Secs. 5(m) 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.81/20156. The prosecution in order to bring home the guilt of the accused has examined in all 6 witnesses as PWs-1 to 6 out of the total 13 witnesses as shown in charge-sheet and got marked the documents at Exs.P1 to P11 and also got marked the Material Objects as MOs-1 to 14.
7. 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. However, the accused did not choose to lead any evidence in support of his defense.
8. Heard the learned Public Prosecutor and the learned counsel for the accused. Perused the records.
9. As per the Charge leveled against this accused, the prosecution in this case has to prove the following:
Points:
1. Whether the prosecution proves beyond reasonable doubt that on 5.11.2014 at 8.30 A.M., the accused trespassed into the house of the complainant, put his penis into the mouth of the minor victim girl CW2 aged 4 years against her will and thereby committed an offence defined under Sec.375(a) of IPC punishable under Sec.376 of IPC?6 Spl.CC No.81/2015
2. Whether the prosecution further proves beyond reasonable doubt that the accused by putting his penis into the mouth of the minor victim girl aged 4 years without her consent and thereby committed aggravated penetrative sexual assault as defined under Sec.5(m) of POCSO Act, 2012 punishable under Sec.6 of POCSO Act, 2012?
3. What Order?
10. My findings on the above points are as under:
Point Nos.1 and 2: In the Affirmative Point No.3: As per the final order, for the following:
REASONS
11. POINT NOS.1 AND 2: Consideration of these two Points are based on the same facts and evidence and therefore, to avoid repetition, these two points are taken together for discussion.
12. According to prosecution, the accused herein being the neighbour of the complainant, when the complainant and her husband had gone for their work that on 5.11.2014 at about 8.30 A.M., trespassed into the house of the complainant, forced the victim girl-CW2, who is a child, aged 4 years to put his penis into the mouth of the child and thereby committed an act of rape on her. Hence, the accused has committed the offences as per the charge leveled against 7 Spl.CC No.81/2015 him punishable under Sec.376 IPC and under Sec.6 of POCSO Act, 2012.
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 6. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Dr.G.Babu Rao deposes about the medical examination of the accused Pw.2 Dr.Sripriya deposes about the medical examination of the victim girl Pw.3 Saleem Pasha-Police Constable deposes about securing of the accused Pw.4 Smt.Sudha Ganesh- mother of the victim girl and the complainant Pw.5 Ganesh- father of the victim girl Pw.6 Victim girl
14. At this stage it is necessary to mention that, though in the charge-sheet, there are 13 witnesses cited, the prosecution examined only 6 witnesses. The other witnesses i..e, CW3, CW5, CW8, CW11, CW12 and CW13 are not examined and CW10 given up. On perusal of the order sheet it disclosed that, inspite of issue of repeated summons and warrants to CW3, CW5, CW8, CW11 to CW13, their presence could not be secured before this court. My learned 8 Spl.CC No.81/2015 Predecessor-in-office on 21.4.2016 has written in the order sheet that sufficient opportunities were given to the prosecution to keep the witnesses present, but, the prosecution failed to keep the witnesses present, moreover, material witnesses are turned hostile and therefore, CW3, CW5, CW8, CW11 to CW13 are dropped from examination by rejecting the prayer made by the learned Public Prosecutor.
15. Before appreciating the evidence, it is better to have a glimpse of the evidence given by all prosecution witness.
16. PW1-Dr.G.Babu Rao deposed that on 10.11.2014 he received a requisition from the PSI, Madiwala Police Station to examine the accused aged 20 years with the history of sexual assault. Accordingly he examined him at 12.00 Noon on 10.11.2014. He further deposed that on genital examination, the accused is capable of performing sexual intercourse. He collected all material objects i.e.., scalp hair, pubic hair, coronal swab, urethral swab and blood relating to the accused and handed over them to the police for FSL Examination. He issued Medical Report as per Ex.P1. He further deposed that on examination, he has not found any illness on the accused and in that regard, he has issued Certificate as per Ex.P2.
17. PW2- Dr.Sripriya deposed that on 9.11.2014 as per the requisition from PSI, Madiwala Police Station, she has examined the victim girl aged 4 ½ years with the history of 9 Spl.CC No.81/2015 sexual assault and the victim girl was accompanied with her mother Smt.Sudha and on the same day i.e., on 9.11.2014 at 5 P.M., she examined the minor victim girl after taking consent from her mother. She further deposed that on physical examination of the victim girl, no external injuries found on the body of the victim girl, on genital examination, hymen is intact, evidence of signs of sexual intercourse was absent, the victim girl is not used to sexual , intercourse, she has collected material objects i.e., scalp hair, nail clipping, buccal swab, buccal smear, vaginal swab, vaginal smear, anal swab, anal smear and blood relating to the victim girl for FSL examination. She issued Certificate with regard to the Medical examination of the victim girl as per Ex.P3.
18. PW3-Saleem Pasha-Police Constable deposed that, as per the order of the PSI that on 9.11.2014 he and another police constable by name Suresh went to trace out the accused. On the basis of the information given by the informant on the same day i.e., on 9.11.2014 at 7.30 P.M., the accused apprehended and brought and produced before the PSI along with the Report as per Ex.P4.
19. PW4-Smt.Sudha Ganesh-mother of the victim girl as well as the complainant deposed that, she is working as staff nurse in Narayana Hrudalaya Hospital. Her husband is also working as a security supervisor in the same hospital. They have 2 children by name Preethi aged 4 ½ years and a boy aged one year. Since they were busy in their work, she was 10 Spl.CC No.81/2015 not able to comminite with her daughter. That on 7.11.2014 at about 9.30 P.M., after food, she sat with her daughter to talk about her school and friends. While she was talking about her food Noodles which she like very much, she told that not to leave her alone and go to shop for buying noodles, because 3 days before when she went to the shop to buy noodles, at that time, her neighbour Gajendra Anna came inside her house and forced the child to keep his penis inside her mouth and also kept his penis inside her mouth. The victim girl told her [complainant] not to leave her alone again and the said fact was informed to the husband of the complainant and finally they filed the complaint as per Ex.P5 to take action against the said person. She further deposed that, after she lodged the complaint as per Ex.P5, the Madiwala Police came to her house and conducted Spot Mahazar as per Ex.P6. The police enquired her daughter and took her statement. Thereafter her daughter was taken for medical examination. She further deposed that her daughter was taken before the Magistrate wherein her daughter has given statement. During her cross-examination by the learned defence counsel, PW4 not withstand her evidence made in the chief examination and therefore learned Public Prosecutor treated PW4 as hostile to the prosecution case. During the course of her (PW4) cross-examination made by the learned Public Prosecutor, statements recorded under Sec.164 of Cr.P.C of PW4 and the Victim girl PW6 marked as Exs.P10 and P11.
11 Spl.CC No.81/201520. PW5-Ganesh-father of the victim girl deposed that, since 2014, he is working at Narayana Hrudalaya Hospital as security supervisor and his wife-the complainant herein is working as staff nurse in the same hospital, his eldest daughter aged 4 years and studying in LKG, he was going to work in night shift and his wife was going to work in day shift. That on 7.11.2014 in the night at about 10-10.15 P.M., his wife telephoned to him and informed that, one Gajendra kept his penis inside the mouth of their daughter. On the next day morning, they went to the Police Station and asked the police to investigate into the matter. But, the police told unless complaint is not lodged, they will not investigate into the matter. Hence, his wife lodged the complaint. Before lodging the complaint, he has not enquired his daughter about the alleged incident. Thereafter they changed their house. Therefore learned Public Prosecutor treated this witness as partly hostile and cross-examined him. The statement given by PW5 before the police is marked as Ex.P7.
21. PW6-Victim girl could not depose anything about the incident. Her parents who were present before this court at the time of examination told the court that now the victim girl was not in a position to give evidence.
22. In this case, FSL Report and Specimen seal are marked as Exs.P8 and P9 with the consent of the accused counsel vide order dated: 7.9.2016.
12 Spl.CC No.81/201523. On the basis of the aforesaid evidence of the prosecution, the learned Public Prosecutor addressed his arguments. He argued that though PW4 who is the mother of the victim girl turned hostile during cross-examination, she supported the case of the prosecution in chief examination, PW5 father of the victim girl though not fully supported the case of the prosecution, he deposed to the fact that his wife telephoned to him and informed about the incident, and further the parents of the victim girl who are PW4 and PW5 withhold the victim girl-PW6 not to depose about the incident, the victim girl and her mother have given statements before the learned Magistrate under Sec.164 of Cr.P.C as per Exs.P10 and P11 and therefore, considering the materials on record, though PW4 and PW5 not supported the case of the prosecution and though the Investigating Officer not examined by the prosecution, it will not fatal to the prosecution case and therefore, learned Public Prosecutor argued that looking into the sum and substance of the evidence led by the prosecution, the accused may be convicted.
24. On the other hand, the learned defence counsel submitted his arguments that the material witnesses examined by the prosecution who are the victim girl and her parents-PW4 and PW5 they themselves not supported the case of the prosecution and further even the Investigating Officer not examined by the prosecution and absolutely there are no materials against this accused so as to say that he has committed the offence. Further it is argued that even in the 13 Spl.CC No.81/2015 medical evidence, no external injuries are found on the victim girl. Therefore, it is argued that false case has been foisted against this accused and hence the accused may by acquitted.
25. In the background of the arguments addressed by the learned Public Prosecutor and the learned defence counsel, now it is necessary to scrutinize the evidence of the prosecution witnesses by considering their version in the cross-examination before accepting their evidence.
26. PW4 who is the complainant and the mother of the victim girl and a material witness in her chief examination deposed that she is working as staff nurse in Narayana Hrudalaya Hospital. Her husband is also working as a security supervisor in the same hospital. They have 2 children a daughter by name Preethi aged 4 ½ years and a boy aged one year. Since they were busy in their work, she was not able to comminite with her daughter. That on 7.11.2014 at about 9.30 P.M., after food, she sat with her daughter to talk about her school and friends. While she was talking about her food Noodles which she like very much, she told that not to leave her alone and go to shop for buying noodles, because 3 days before when she went to the shop to buy noodles, at that time, her neighbour Gajendra Anna came inside her house and forced the child to keep his penis inside her mouth and also kept his penis inside her mouth. She 14 Spl.CC No.81/2015 told her [complainant] not to leave her alone again and the said fact was informed to the husband of the complainant and finally they filed the complaint as per Ex.P5 to take necessary action against the said person. However during the course of cross-examination made by the learned defence counsel she admitted the suggestion put to her that there are 7 to 8 persons by name Gajendra near to their house, the victim girl did not say the name of the person as Gajendra. She further admitted that on suspicion she lodged a complaint against the accused. She further admitted that the persons of the age of the accused used to talk with the victim girl. She put signature in Ex.P6 (i.e., Spot Mahazar) in the Police Station. She further admitted that the police told her that she has to written the complaint as per Ex.P5, then only, they will register the case and accordingly, as per the instructions of the police, she lodged complaint as per Ex.P5. Further she admitted that the Victim girl did not say that the accused put his penis into her mouth. Thereby the complainant-PW4 completely made go-bye to her statement as deposed in her chief examination.
27. As PW4 deposed in her cross-examination contrary to her evidence in examination in chief, as to the facts, learned Public Prosecutor sought permission of this court to treat PW4 as hostile to the case of prosecution and also sought permission to cross-examine her. This court permitted prosecution to treat PW4 as hostile to the prosecution case and the learned Public Prosecutor has cross-examined PW4.
15 Spl.CC No.81/2015During the course of cross-examination by learned Public Prosecutor though the prosecution could not able to elicit evidence from PW4 in favour of prosecution case, it is suggested to her that, she deposed in her cross-examination contrary to her evidence in examination in chief under threat by the accused. Said suggestion is denied by PW4.
28. It is true that the PW4-complainant as well as the mother of the victim girl turned hostile during her cross-examination by learned defence counsel. During the course of arguments learned Public Prosecutor submitted that though PW4 turned hostile, her evidence in examination in chief cannot be brushed aside. In that regard, learned Public Prosecutor referred to a decision reported in 2010 CRI.L.J 1515 in Krishna Vs. State of Karnataka. I have gone through the said decision. In the said decision, it is observed that:
"Section.3 of Evidence Act-Hostile witness- Where a witness fully supports prosecution case in his examination-in-chief as to any material and relevant fact- But turns hostile to prosecution in his cross-examination made on behalf of accused on a later date and states contrary to his evidence in his examination-in-chief as to the said fact-Evidence of such hostile witness in his examination-in-chief has to be accepted as true if it is not shown that what he stated in his examination-in-chief was not stated by him at the earliest opportunity, in his statement recorded under Section 161 of Cr.P.C by Investigation Officer".
Further it is observed that:
"Witnesses were won over by the accused, they stated in their evidence in cross-examination contrary to their own evidence in examination-in-chief as to certain facts and 16 Spl.CC No.81/2015 therefore their evidence in their examination-in-chief has to be accepted".
Therefore learned Public Prosecutor argued that the evidence of PW4 may be believed so as to convict the accused. At this stage it is pertinent to note that court has also came across the following 3 decisions reported in:
(1) (2012) 5 Supreme Court Cases 777 (Ramesh Harijan Vs. State of UttarPradesh) (2) 2012 Crl.L.J 1926 (SC) (Bajju @ Karan Singh Vs. State of M.P) (3) AIR 2001 Supreme Court 330 (Gura Singh Vs. State of Rajasthan) In all the aforesaid 3 decisions, the ratio laid-down is :
"It is settled law that evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed-off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if, corroborated by other reliable evidence".
In that back-ground, I have gone through the evidence of PW4. As rightly argued by learned Public Prosecutor, PW4 in her evidence has deposed to facts as stated by her in the complaint as per Ex.P5. Ex.P5 is written complaint by PW4-complainant. The written complaint was received by PSI of Madivala Police Station. During the course of cross-examination of PW4, it is suggested to her that as per 17 Spl.CC No.81/2015 the instructions of the police, she has written the complaint as per Ex.P5. However it is pertinent to note that the defence has not placed any materials on record to show that how and in what way the police has got interest in the present case so as to instruct the complainant-PW4 to lodge the complaint, as per Ex.P5. It is also pertinent to note that the complainant in this case is a responsible woman being Staff Nurse working in Narayana Hrudalaya Hospital. Looking to the position of PW4, it is highly unbelievable that the responsible woman will write the complaint at the instructions of the police as per Ex.P5. Therefore the arguments advanced by learned defence counsel that the complainant has written the Complaint, as per Ex.P5 at the instructions of the police, cannot be accepted and the contents of Ex.P5 is taken into consideration that the mother of the victim girl-PW4 has voluntarily herself at her own will written the complaint. When this court has accepted the contents of the Complaint as per Ex.P5, which is written by the complainant-PW4 herself and further she deposed to the facts with regard to the complaint in her examination-in-chief, when prosecution examined her and thereafter she turned hostile, applying the principles observed in the aforesaid decisions, in the present case also, the court has to take note of the fact that PW4 deposed in her cross-examination contrary to the evidence deposed in her examination-in-chief, because of threat and future consequences on her. Admittedly, PW4 is a working woman, she has to nurture her baby girl aged 4 years and she has also to think over of the future of said baby girl. Under that circumstances, she (PW4) 18 Spl.CC No.81/2015 might have deposed contrary to her examination-in-chief in her cross-examination. Therefore this court accepts the evidence of PW4 to base the conviction.
29. In so far as corroboration of the evidence of this PW4 is concerned, it is true that no other independent witnesses cited by the prosecution not examined by the prosecution. On perusal of the charge sheet, CW3 being the neighbour of PW4, CW5 being the owner of the house of PW4, did not secure before the court, as they were not available when the summons and warrants issued to them as many as 9 times. Similarly, the prosecution could not secure CW8 being a person of SJPU, CW11-PSI who registered the complaint and conducted spot mahazar, CW12 and CW13 being the police officers who conducted further investigation inspite of taking summons and warrants as many as 7 times. Because of these police officers and the independent witnesses not examined by the prosecution, the evidence of PW4 could not corroborated with the evidence of the other independent witnesses and police witnesses.
30. However, the prosecution has examined PW3-Saleem Pasha. He deposed regarding apprehending the accused and producing him before the PSI (CW11). Further the prosecution has got marked Ex.P4-Report with regard to apprehending the accused and further Spot Mahazar marked as Ex.P6, statement of PW5 marked as Ex.P7, FSL certificate 19 Spl.CC No.81/2015 and seal are marked as Exs.P8 and P9.
Therefore, under the present facts and circumstances of the case, non-examination of the Investigating Officer is not fatal to prosecution case.
31. The learned defence Counsel argued that the victim girl herself not deposed against the accused before the court. It is true that the victim girl who is examined as PW6 not deposed against the accused before the court. However, the victim girl and her mother-PW4 both of them have given their Statements before the Learned Magistrate under Sec.164 of Cr.P.C. In so far as Statement of PW4 under Sec.164 of Cr.P.C is concerned, it corroborates her evidence deposed in her examination-in-chief. Further it is also pertinent to note that the defence has not elicited any evidence from PW4 and PW5 that they are having enmity against this accused so as to lodge false complaint of this nature. Even in Sec.313 of Cr.P.C Statement the accused has not stated that, he is not the person who has committed the offence and there are many persons by name Gajendra in the locality where the victim girl is residing. Further the accused has also not placed any evidence to show that there are other persons by name Gajendra in the said locality.
32. Relying on the evidence of PW4-mother of the victim girl as well as the complainant and complaint as per Ex.P5 and taking into consideration that, child sexual abuse being 20 Spl.CC No.81/2015 one of the most serious and damaging criminal offence, though in this case, the Investigating Officer is not examined, this court by accepting the evidence of PW4 alone, hold that the accused who has committed the offence.
33. On scrutinizing the entire statement of the mother of the victim girl-PW4, though there are discrepancies or infirmities and she could not withstand her evidence deposed by her in her cross-examination, this court finds that there was no ulterior motive on the part of PW4 being the mother of the victim girl aged 4 years having onerous responsibility and further there was no enmity against this accused so as to lodge false complaint against this accused. The victim girl is a child of 4 years and neither the victim girl nor her mother was not going to be benefited by making so serious imputations against this accused. It is also unbelievable that PW4 would use her own daughter who is the victim girl-PW6 to lodge a false complaint against this accused. By ignoring minor discrepancies and contradictions that do not go to the root of the case, this court is of the opinion that the accused has committed the offence as alleged against him and therefore, he is liable to be convicted. Accordingly, I answer Point Nos. 1 and 2 in the Affirmative.
34. At this stage, this court feels that it is necessary to say with regard to the conduct of the police officials. In the present case, CW11 to CW13 being the police officials, inspite of taking summons as many as 7 times, they did not 21 Spl.CC No.81/2015 care to appear before this court. The summons sent to them return with shara 'Transferred, Bandobast duty, there was no time to serve the summons, intimated in the office etc.'. The police officials who registered the case, conducted the investigation, they have to take interest in the matter and to follow up the case and shall have to appear before the court in a case like this nature of children sexual abuse. Therefore, it is necessary to send the copy of this judgment to the Superintendent of Police to look into the matter.
35. POINT NO.3: 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.5(m] r/w Sec.6 of POCSO Act, 2012.
MOs-1 to 14 being worthless are ordered to be destroyed after the appeal period is over.
[Dictated to the Stenographer partly and directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 21st day of October 2016).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
22 Spl.CC No.81/201522-10-2016 Heard with regard to awarding of sentence.
The accused was produced before me today at 1.15 P.M. On hearing the accused personally, he submitted that, he is aged 23 years and doing painting work and studied 8th standard only. He is having parents, a sister aged 18 years. His father's kidney failed and his father is under medication. He is the only bread-earner in the family and he is having more responsibility to look after his ailing father, mother and his 18 years old sister who is also not going to school, because of this case filed against him. Therefore, he prays for taking lenient view in imposing the sentence.
On the other hand, the learned Public Prosecutor has submitted that the accused has committed heinous crime against a child of 4 years and he does not deserve any leniency in imposing sentence. Further he has relied upon decision reported in AIR 2013 Supreme Court 3246 [State of Harayana Vs.Janak Singh] wherein it is observed that:
" Sentence bargaining not permissible in rape cases".
Hence, the learned Public Prosecutor prays for awarding the maximum sentence as contemplated under Sec.6 of POCSO Act, 2012.
23 Spl.CC No.81/2015In this case, the accused is found guilty of the offences punishable under Sec.376 IPC and under Sec.6 of POCSO Act, 2012.
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".
On going through the provisions of Sec.376 of IPC, it provides punishment for rape-
"Whoever, except in the cases provided for by sub-section(2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than 7 years, but, which may be for life or for a term which may extend to 10 years 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.5[m] r/w 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.5[m] r/w Sec.6 of POCSO Act, 2012 is taken into consideration, as the 24 Spl.CC No.81/2015 punishment provided for the offence under Sec.5[m] r/w 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.
In so far as imposing fine is concerned, the accused himself submitted that he is a poor man having no income or any movable or immovable properties. 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 fine and the compensation amount, lenient view is taken in imposing the fine amount.
Considering the background of the accused i.e., his father's ill-health, his education, his mother and his sister, further also considering the crime committed by him against a child, 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.5,000/- for the offence punishable under Sec.5[m] r/w Sec.6 of POCSO Act, 2012. In default of payment of fine amount, the 25 Spl.CC No.81/2015 accused shall undergo simple imprisonment for a period of Three 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.
Office is directed to supply the free copy of this Judgment to the accused forthwith.
Further the office is directed to send the copy of this Judgment to the Superintendent of Police, for taking necessary steps in the cases of this nature.
(Dictated to the Stenographer directly on the computer, corrections carried out and then pronounced by me in the Open Court on this the 22nd day of October 2016).
[RAJESHWARI.N.HEGDE] LIV Addl., City Civil & Sessions Judge, Bangalore.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Dr.G.Babu Rao CW7 6.10.2015
Pw.2 Dr.Sripriya CW6 6.10.2015
Pw.3 Saleem Pasha CW3 5.1.2016
Pw.4 Sudha Ganesh CW1 28.1.2016
Pw.5 Ganesh CW4 28.1.2016
26 Spl.CC No.81/2015
Pw.6 Preethi CW2 20.2.2016
Documents marked for the prosecution:
Ex.P1 Certificate issued by PW1 for sending the material
objects of the accused for FSL Examination.
Ex.P1[a] Signature of PW1
Ex.P2 Medical certificate issued by PW1 regarding the
medical fitness of the accused
Ex.P2(a) Signature of PW1
Ex.P3 Certificate issued by PW2 regarding the medical
examination of the victim girl.
Ex.P3(a) Signature of PW2
Ex.P3(b) Signature of PW4
Ex.P4 Report given by PW3
Ex.P4(a) Signature of PW3
Ex.P5 Complaint dated: 8.11.2014
Ex.P5(a) Signature of PW4
Ex.P6 Spot Mahazar dated: 9.11.2014
Ex.P6(a) Signature of PW4
Ex.P7 Statement of Ganesh
Ex.P8 FSL Report marked with consent
Ex.P9 Specimen seal marked with consent
Ex.P10 Statement under Sec.164 of Cr.P.C of complainant
Ex.P10(a) Signature of PW4
Ex.P11 Statement under Sec.164 of Cr.P.C of victim girl
27 Spl.CC No.81/2015
Material Objects marked for the prosecution:
MO1 Scalp hair MO1 CD MO2 Nail clippings MO3 Buccal swab MO4 Buccal smear MO5 Vaginal swab of the victim girl MO6 Vaginal smear MO7 Anal swab MO8 Anal smear MO9 Blood MO10 Scalp hair MO11 Pubic hair MO12 Coronal swab of the accused MO13 Urethral swab MO14 Blood
NOTE: MO1 marked twice as Scalp hair and CD.
Witness examined, documents and MOs marked for the accused: NIL.
LIV Addl., City Civil & Sessions Judge, Bangalore.28 Spl.CC No.81/2015
21.10.2016 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.5(m] r/w Sec.6 of POCSO Act, 2012.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY 29 Spl.CC No.81/2015 22.10.2016 Accused produced from judicial custody.
Heard regarding the sentence.
Sentence is passed vide separate Order:
SENTENCE The accused shall undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.5,000/- for the offence punishable under Sec.5[m] r/w Sec.6 of POCSO Act, 2012. In default of payment of fine amount, the accused shall undergo simple imprisonment for a period of Three 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.
Office is directed to supply the free copy of this Judgment to the accused forthwith.
Further the office is directed to send the copy of this Judgment to the Superintendent of Police, for taking necessary steps in the cases of this nature.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY 30 Spl.CC No.81/2015 31 Spl.CC No.81/2015