Bangalore District Court
State By Chandra Layout Police vs John on 19 February, 2018
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the 14th day of February, 2018.
Present: SMT.YADAV VANAMALA ANANDRAO., B.Com. LL.B.[Spl.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO.596/2014
COMPLAINANT: State by Chandra Layout Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: John,
Son of Late. Aruldas,
Aged 47 years,
Residing at: Near Ganesh Temple,
Nayandanahalli,
Bangalore-39.
[By Advocate Ms.Priya.K]
1. Date of commission of offence 18.11.2014
2. Date of report of occurrence of 18.11.2014
the offence
3. Date of arrest of accused 18.11.2014
2 Spl CC No.596/2014
4. Date of release of accused [bail] The accused was released o bail
on 11.02.2015.
On the date of judgment i..e,
on 14.2.2018, the accused
was convicted for the offences
coming within the purview of
Sec.9(m) of POCSO Act, 2012
and punishable under Sec.10
of POCSO Act, 2012 and
Sec.354 of IPC.
.
5. Period undergone in custody by 02 Months and 21 Days
the accused
6. Date of commencement of 14.10.2015
evidence
7. Date of closing of evidence 16.1.2018
8. Name of the complainant Smt.Rathna, complainant as
well as the mother of the victim
girl
9. Offences complained of Sec.354 of IPC r/w Secs. 9(m)
and 10 of POCSO Act, 2012
[as per the charge-sheet]
10. Opinion of the Judge The accused was convicted
for the offences coming within
the purview of Sec.9(m) of
POCSO Act, 2012 and
punishable under Sec.10 of
POCSO Act, 2012 and Sec.354
of IPC and he was sentenced
for the offence punishable
under Sec. 10 of POCSO Act,
2012 and under Sec.354
of IPC.
3 Spl CC No.596/2014
JUDGEMENT
The Police Inspector, Chandra Layout police station has filed charge-sheet against the accused for the offences punishable under Sec.354 of IPC r/w Secs. 9(m) and 10 of POCSO Act, 2012.
2. Gist of the prosecution case is that:
"The accused with a sexual intent has outraged the modesty of the victim girl/CW2 who was aged about 6 years on 18.11.2014 at about 7.30 P.M., when the victim girl was playing in the parking area of apartment building No.84/57/A, situated near Ganesh Temple, Nayandanahalli, Garden Road, coming within the limits of Chandra Layout police station, by lifting her [victim girl/CW2] clothes and pressed her both breasts with a sexual intent using criminal force and even one day prior to the said incident, similar criminal act was committed by the accused, knowing that the victim girl/CW2 was minor and committed aggravated sexual assault upon her person" and hence, complaint was lodged and case was registered against the accused in Cr.No.351/2014. During the course of investigation, the accused was arrested and initially he was not granted bail. Cognizance was taken. After filing of the charge-sheet, the accused was granted with bail.
3. Initially this case was made over to this court CCH:55. As per the Notification, No. ADM-I (A)/ 614/2017, of the Office of the city Civil Court, Bengaluru, dated:4.8.2017 with effect from the afternoon of 5.8.2017, now, the case is before this Child Friendly Court, Bengaluru Urban District, for disposal.
4 Spl CC No.596/20144. The accused who is on bail, is represented by the counsel of his choice. After appearance of the accused, the copies of the prosecution papers [charge-sheet] was furnished 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, this court has framed the Charge on 13.7.2015 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed the trial.
6. To prove the case, the prosecution has examined PWs-1 to 16 witnesses, out of total 16 charge-sheet witnesses and placed reliance on Exs.P1 to 12 documents and one C.D i.e., Material Object is marked as MO-1 After completion of the evidence of the prosecution witnesses, Statement under Sec.313 of Cr.P.C by the accused was recorded. The accused denied the incriminating evidence available against him. But, he [accused] has not led any evidence in support of his defence.
7. Heard the arguments of the learned Public Prosecutor. The learned counsel for the accused being absent all the while, has not submitted any oral or written arguments on behalf of the accused. Perused the oral and documentary evidence and the record on hand.
5 Spl CC No.596/20148. Following Points are formulated for consideration:
1. Whether the prosecution has proved beyond all reasonable doubt that, on 18.11.2014 at about 7.30 P.M., when CW2/victim girl who was aged about 6 years, was playing the parking place of building No.84/57/A, situated near Ganesha Temple, Garden Road, Nayandanahalli, Bengaluru, the accused called her [victim girl] and lifted her clothes and pressed her both sides breast and caused pain to her, by using criminal force, and even one day prior to the said incident, similar criminal act was committed by the accused, knowingly that she[victim girl] was minor, thereby the accused has outraged the modesty of CW2/victim girl and committed an offence punishable under Sec.354 of IPC?
2. Whether the prosecution has proved beyond all reasonable doubt that, on the same date, time and place, the accused with a sexual intent called her [victim girl] and lifted her clothes and pressed her both sides breast and caused pain to her, by using criminal force, and even one day prior to the said incident, similar criminal act was committed by the accused, knowingly that she[victim girl] was aged about 6 years, i.e., below the age of 12 years, and committed aggravated sexual assault on the victim girl, thereby the accused has committed an offence coming within the purview of Sec.9(m) of POCSO Act, 2012 and punishable under Sec.10 of POCSO Act, 2012?
3. What Order?
9. 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:6 Spl CC No.596/2014
REASONS
10. POINT NOS.1 AND 2:- As these Points are inter-linked to each other, hence, they are taken up together for common discussion, to avoid repetition of facts. It is the specific case of the prosecution that, "the accused with a sexual intent has outraged the modesty of the victim girl/CW2 who was aged about 6 years on 18.11.2014 at about 7.30 P.M., when the victim girl was playing in the parking area of apartment building No.84/57/A, situated near Ganesh Temple, Nayandanahalli, coming within the limits of Chandra Layout police station, by lifting her [victim girl/CW2] clothes and pressed her both breasts and caused pain, with a sexual intent by, using criminal force and even one day prior to the said incident, similar criminal act was committed by the accused, knowingly that the victim girl/CW2 was minor and committed aggravated sexual assault upon her person" . Hence, the prosecution has to discharge its initial burden and only when it is discharged, the presumption under Secs.29 and 30 of POCSO Act, 2012 can be raised. Therefore, whether the prosecution is able to discharge its burden is a question to be considered along with the evidence on record.
11. The prosecution has adduced the evidence of the material witnesses. The very victim girl[CW2] has deposed as PW5. It is therefore relevant to reproduce her evidence, which is material to be considered. It reads thus:
"18.11.2014gÀAzÀÄ ±Á¯É ©lÄÖ §AzÀ £ÀAvÀgÀ DlªÁqÀÄwÛzÝÉãÀÄ. ¸ÀĪÀiÁgÀÄ 7UÀAmÉAiÀÄ £ÀAvÀgÀ £ÀªÀÄä ªÀÄ£ÉAiÀÄ ¥ÀPÀÌzÀ°ègÀĪÀ ªÉÄnÖ°£À ºÀwÛgÀ £Á£ÀÄ DlªÁqÀÄwÛzÉÝãÀÄ. DUÀ eÁ£ï CAPÀ¯ï C°èUÉ §AzÀ£ÀÄ. CªÀ£ÀÄ £À£ÀߣÀÄß ªÉÄnÖ®ÄUÀ¼À ºÀwÛgÀ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃV £À£ßÀ 7 Spl CC No.596/2014 §mÉÖAiÀÄ£ÀÄß JwÛ JzÉAiÀÄ£ÀÄß »ZÀÄQzÀ£ÀÄ. (¸ÁQëAiÀÄÄ vÀ£Àß PÉÊUÀ½AzÀ JzÉAiÀÄ ¨sÁUÀU¼ À £ À ÄÀ ß ªÀÄÄnÖ vÉÆÃj¸ÀÄvÁÛ¼.É ) CªÀ£ÀÄ C¯Éè¯Áè ¥Àga À ©lÄÖ £À£U À É £ÉÆêÀÅ ªÀiÁrzÀ£ÀÄ. DUÀ £Á£ÀÄ QgÀÄZÀÄvÁÛ C¼ÀÄvÁÛ ªÀÄ£ÉAiÀÄ PÀqU É É Nr §AzÉ£ÀÄ. ¸Àzj À ¢£ÀzÀ »A¢£À ¢£ÀªÇ À ¸À»vÀ CªÀ£ÀÄ £À£U À É »ÃUÉAiÉÄà ªÀiÁrzÀÝ£ÀÄ. eÁ£ï CAPÀ¯ï ªÀÄ£ÉAiÀÄÄ £ÀªÀÄä ªÀÄ£ÉAiÀÄ ºÀwÛgz À À ªÉÄnÖ®ÄUÀ¼À ¥ÀPÀÌzÀ°è §gÀÄvÀÛz,É ¸ÀzjÀ eÁ£ï CAPÀ¯ï£À£ÀÄß FUÀ £ÉÆÃqÀÄwÛzÄÀ Ý CªÀ££ À ÀÄß UÀÄgÀÄw¸ÀÄvÉÛãÉ. (¥Àgz À AÉ iÀÄ£ÀÄß ¸Àj¹ ¸ÁQëUÉ DgÉÆæAiÀÄ£ÀÄß vÉÆÃj¸À¯Á¬ÄvÀÄ.) ¸ÁAiÀÄAPÁ® 7.30gÀ £ÀAvÀgÀ £À£Àß C¥Àà CªÀÄä ªÀÄ£ÉUÉ §AzÀgÀÄ. £Á£ÀÄ eÁ£ï CAPÀ¯ï £À£U À É ªÀiÁrzÀÝ£ÀÄß £À£Àß C¥Àà CªÀÄä¤UÉ ºÉýzÉ£ÀÄ."
"DgÉÆæAiÀÄÄ £À£Àß JzÉ ¨sÁUÀªÀ£ÀÄß »¸ÀÄQzÁUÀ, £À£ÀUÉ UÁAiÀĪÁVgÀ°®è(¸ÁQë JzÉ ¨sÁUÀªÀ£ÀÄß PÉÊ ¸À£Éß ªÀÄÆ®PÀ vÉÆÃj¸ÀÄvÁÛ¼ÀÉ). DgÉÆæAiÀÄÄ D jÃw £À£Àß JzÉ ¨sÁUÀªÀ£ÀÄß »¸ÀÄQzÁUÀ £À£ÀUÉ £ÉÆêÁ¬ÄvÀÄ. CzÀÄ PÉlÖ ªÀvÀð£É DVgÀÄvÀÛzÉ( bad touch) DVgÀÄvÀÛzÉ."
12. So, also the complainant/mother of the victim girl/ CW1 who deposed as PW4, so, also the father of the victim girl/CW5 who deposed as PW6 have supported the version of the victim girl/PW5. The sister of the father of the victim girl/CW6 who deposed as PW3, she too also corroborated the version of the victim girl. The victim narrated the incident to these persons (PW 3, 4 & 6) Hence, PWs-3, 4 and 6 are material witnesses.
13. PW1/CW8-Smt.Susheelamma is the school teacher has referred the letter in the form of certificate issued on the basis of the school records of the victim girl supporting the date of birth of the victim girl and deposed that, as per the School Records, the date of birth of the victim girl is 21.5.2008 and the said Certificate was issued on 20.11.2014. Therefore, at the time of the alleged incident, the age of the victim girl was below the age of 6 years. There is no cross-examination to this witness [PW1] on the part of the accused. Therefore, it is proved fact that, the victim girl was 8 Spl CC No.596/2014 below the age of 12 years and she was minor. Much discussion is therefore avoided.
14. It is also pertinent to note that, there is no dispute regarding relationship of the victim girl with her parents and sister of the father of the victim girl i..e, PWs-3 to 6 inter-se between them. From their evidence it is revealed that, the complainant/PW4 and her husband-PW6 were having 2 children and the victim girl was their 2nd child. The victim girl was aged about 6 years during the incident date and she was going to school and the complainant was going to work in the garments and the father of the victim girl was going for private work (PÀA© PÉ®¸À) and the victim girl/PW5 was having the school from 9.30 A.M., to 4.30 P.M., and both the complainant and her husband were coming late after their completion of work i.e., only after 6 P.M., in the evening. In between the duration, the minor victim girl was in the house after school hours. It is the specific case that, the house of the accused was located behind the house of the complainant and they were having acquaintance with the accused.
15. PW4/complainant has specifically stated that, one day when she returned from the work place at 7.30 P.M., at that time, her husband PW6 was in the house and her daughter/victim girl was weeping and on enquiry, the victim girl disclosed that, the accused took her [victim girl] down the stairs situated next to the passage of her house and lifted her shirt and squeezed her breasts and pricked by his nails, at that time, victim girl screamed and 9 Spl CC No.596/2014 came running. It is relevant to reproduce her [PW4] evidence, which is material to be considered. It reads thus:
"£Á£ÀÄ £À£Àß ªÀÄUÀ¼£ À ÀÄß KPÉ C¼ÀÄwÛgÀÄªÉ CAvÀ ¥Àæ²ß¹zÉ£ÀÄ. CzÀPÉÌ £À£Àß ªÀÄUÀ¼ÀÄ eÁ£ï CAPÀ®£ÀÄ vÀ£ÀߣÀÄß £ÀªÀÄä ªÀÄ£ÉAiÀÄ ¥ÀPÀÌzÀ ¸ÀA¢£À°è ªÉÄnÖ®ÄUÀ¼À PɼU À É PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃV vÀ£Àß CAVAiÀÄ£ÀÄß JwÛ CªÀ¼À JzÉU¼ À £À ÀÄß »ZÀÄQzÀ£AÉ zÀÄ ºÉýzÀ¼ÀÄ. GUÀÄj¤AzÀ VÃjzÀ£AÉ zÀÄ, £À£Àß ªÀÄUÀ¼ÄÀ QgÀÄaPÉÆAqÀÄ C°èAzÀ Nr§AzÉ£AÉ zÀÄ ºÉýzÀ¼ÀÄ. CzÀPÀÆÌ ªÉÆzÀ¯ÉƪÉÄä EzÉà jÃw eÁ£ï CAPÀ¯ï vÀ£U À É »ÃUÉAiÉÄà ªÀiÁrzÀÝ£AÉ zÀÄ w½¹zÀ¼ÀÄ. DUÀ £ÁªÀÅ ¸Àzj À «µÀAiÀĪÀ£ÄÀ ß ZÁ¸Á.6£ÉÃAiÀĪÀ½UÉ ¥sÉÆÃ£ï ªÀÄÄSÁAvÀgÀ w½¹zɪÀÅ. DUÀ £À£Àß £Á¢¤ ZÁ¸Á.6 £ÀªÀÄä ªÀÄ£ÉUÉ §AzÀ¼ÀÄ. £ÁªÀÅ eÁ£À£À ªÀÄ£ÉAiÀÄ ºÀwÛgÀ ºÉÆÃzɪÀÅ. CªÀ££ À ÀÄß ¨ÉÊzÀÄ £ÀAvÀgÀ ¥ÉÇ°Ã¸ï ¦üAiÀiÁðzÀ£ÀÄß PÉÆmÉÖªÀÅ."
16. So, also the father of the victim girl/ PW6 deposed that, on the date of incident, he returned to home and his wife[PW4] also returned to home after their respective work from the working place. His daughter/ victim girl came from his neighbour's house and she was weeping and on enquiry, she [victim girl] narrated the said incident, as referred above, as the accused has committed sexual assault, as referred above. His [PW6] version is also supported that, the victim girl has narrated the incident on that occasion. This witness [PW6] phoned to his sister/CW6 [PW3] and intimated the said incident. It is also supported by the version of PW3, as she has deposed that, on receiving the phone call from her brother [PW6], she came to the house of her brother [PW6] and on enquiry, the victim girl narrated the said incident and both of them [PWs-3 and 6] went to the house of the accused and scolded and beaten them and then lodged the complaint to the police. It is also brought on record that, after filing of the complaint as per Ex.P3, by the complainant/PW4, the Investigating Officer has registered the case and came to the spot and conducted spot mahazar as per Ex.P4. The evidence of these 10 Spl CC No.596/2014 witnesses [PWs-3 and 6] is on getting intimated through the victim girl. Hence, Sec.6 of the Evidence Act is attracted and their evidence is believable as clinching evidence.
17. The victim girl/PW5 stated about taking her for medical examination to the hospital. So also she was taken to the Learned Magistrate and her statement was recorded under Sec.164 of Cr.P.C, which is as per Ex.P10. It is material to note that, during the evidence of PW5, CD was marked as MO-1. It is also important to note that, during the course of evidence, PW5 has specifically deposed by her hand gestures about the sexual assault committed by the accused, by squeezing her breast part of her body. Thus, the victim girl/PW5 has specifically and consistently given Statement before the complainant police and also before the Learned Magistrate and also before this court that the accused has committed sexual assault on her. Thus, the evidence of PW5 do support the case of the prosecution regarding committing of sexual assault on the victim girl by the accused.
18. It is also material to note that, the accused has not chosen to cross-examine PWs-3 to 6 witnesses inspite of giving reasonable time and through his counsel also. Apart from this, at the time of recording of his [accused] statement under Sec.313 of Cr.P.C, the accused has not disputed the place of incident, time and his act of touching the breasts of the victim girl and hence, it is relevant to consider such conduct of the accused, who has stated that "he has only touched the breasts of the victim girl and not done anything". It is therefore, clear and unequivocal admission on 11 Spl CC No.596/2014 the part of the accused, which supports the case of the prosecution. Thus, only on this ground, the initial burden therefore considered to be discharged by the prosecution and hence, this court shall raise presumption under Secs. 29 and 30 of POCSO Act, 2012, committing of said offence and culpable mental state of the accused, respectively.
19. It is also notable point that, the neighbour of the complainant- Smt.Ammayamma-CW5 who deposed as PW12. But, she has totally turned hostile to the prosecution case. Even after declaring her as hostile witness, PW12 did not support the prosecution case and even she has denied the contents of her statement given before the police under Sec.161 of Cr.P.C i..e, as per Ex.P7. Though, she [PW12] is the resident of nearby house of the accused and the complainant, but, she has not admitted about the acquaintance of the accused. However, she [PW12] has stated that one day in the year 2014, when she was in the house taking rest at about 5 to 6 P.M., the police came to the house of the complainant, but, she does not know why the police came to the complainant's house and the police took her [PW12] signature. But, she did not know what had happened and she also did not know that the accused had committed sexual assault on the victim girl. After declaring her hostile by the learned Public Prosecutor with permission, suggestions were put to her, she has denied the same. So her evidence does not assist the prosecution as clinching evidence.
12 Spl CC No.596/201420. The circumstantial witnesses i.e. the panch witnesses CW3-Robert who deposed as PW10 and CW4-Babu who deposed as PW11 have totally turned hostile to the prosecution case with reference to the spot mahazar as per Ex.P4. But, the complainant/PW4 being the material witness supported it that, the Investigating Officer had duly conducted the spot mahazar about the place of incident as per Ex.P4, as shown by her [complainant/PW4] It has not been rebutted by cross-examining her by the accused. Thus contents of Ex.P4 is proved through this complainant/PW4
21. Now coming to the Medical evidence, the prosecution has examined:
(a) CW9-Dr.R. Leelavathi-Senior Specialist, K.C. General Hospital, Bengaluru, deposed as PW7. She has stated on oath that, on 19.11.2014, on requisition of Police Inspector of Chandra Layout police station, she has examined the victim girl aged about 6 years in this case, who was before by the WPC on the history of sexual assault on the victim girl and specifically referred the name of the accused that, he has pinched her breast. On physical examination of the victim girl, "there were no external injuries seen on the body and the victim girl was conscious". On examination of genitalia, "no injuries were seen on the vulva and hymen was intact". She has given Provisional Medical Certificate of the victim girl, as per Ex.P5. Further, she has submitted Final opinion in connection with Ex.P5 and it is marked as Ex.P11. In her Final Opinion, she [PW7] has opined that, "if a child aged about 6 years 13 Spl CC No.596/2014 was subjected to sexual assault by pressing the chest area, there would be no chance of evidence of injury marks, found on the chest area of such victim."
(b) CW10-Dr.Lakshmipathy-Pediatrician, K.C.General Hospital, Bangalore, deposed as PW8. He has stated on oath that, on 20.11.2014, on the reference made by the Gynecologist Dr.R.Leelavathi, he examined the victim girl aged 6 years on the history of alleged sexual assault. On examination, the child was conscious and oriented. All whitals and system were normal. He opined that, "clinically no abnormally detected in the child" and he has given his opinion as per Ex.P5(c).
(c) CW11-Dr.Bheemappa Havanur-Professor and Head of the Department of Forensic Medicine, Bangalore Medical College, Bangalore, deposed as PW13. He has stated on oath that, on 19.11.2014, between 12.15 P.M., to 1 P.M., he examined the person by name John, 47 years, produced by CW13 of Chandra Layout police station along with the requisition of Police Inspector, with the history of sexual assault. On physical examination of the accused, he was moderately built and well nourished. On local general examination, all his [accused] organs were developed as per his age. He opined that, "there is nothing to suggest that the said person is incapable of performing sexual intercourse". In that regard, he [PW13] has issued Medical Certificate with reference to the accused as per Ex.P8.
14 Spl CC No.596/2014The evidence of these material witnesses being not rebutted is relevant and held to be clinching evidence. There is no cross-examination of these[Doctors] witnesses to disprove their evidence and the contents of the said medical reports. These are corroborating the version of the material witness PW5[victim girl] that, she was subjected to sexual assault by the accused.
22. Now coming to the police officials witnesses, the prosecution has examined:
(a) CW13-Hanumamurthy- Police constable of Chandra Layout police station deposed as PW2. He has stated that, on 19.11.2014 as per the orders of the Police Inspector, he has taken the accused to the Victoria Hospital for medical examination and after completion of his examination, he[PW2] brought back the accused and produced before the Police Inspector and gave Report as per Ex.P2. He has performed his official duty, as per the order of the Investigating Officer.
(b) CW12-Poornima-WPC of Chandra Layout police station, deposed as PW9. She has stated on oath that on 19.11.2014, as per the order of the Police Inspector, she has taken the victim girl of this case who was aged about 6 years to KC General Hospital for medical examination. As per the advise of the Lady Doctor, she [PW9] took the victim girl to the Pediatrician. As the Pediatrician was not available on that day, she brought back the victim girl and produced her before the Police Inspector. On 20.11.2014, as per the orders of the Police Inspector, she[PW9] again took the victim girl to K.C.General Hospital. After her 15 Spl CC No.596/2014 [victim girl] medical examination, PW9 brought the victim girl and produced before the Police Inspector. Again the Police Inspector ordered her [PW9] to take the victim girl before the Child Welfare Committee and per the advise of Chair-Person of the said Child Welfare Committee, she [PW9] took the victim girl to Nimhans Hospital. The doctors in the Nimhans hospital done counseling of the victim girl and after the counseling, she [PW9] brought back the victim girl and produced before the Police Inspector and gave Report as per Ex.P6. She has performed her official duty, as per the order of the Investigating Officer.
(c) CW15-Soumya-the then WPSI of Cottonpet police station deposed as PW14. She has stated on oath that, on 19.11.2014, as per the oral instructions and directions of the Police Inspector of Cottonpet police station, she went to Chandra Layout police station and the Police Inspector of Chandra Layout police station instructed her to go to the house of the victim girl. Accordingly, she [CW14] went to the house of the victim girl. There in the house, the victim girl and her mother were present and she [PW14]recorded the statement of the victim girl in the presence of her mother and came back to the police station and reported orally to the Police Inspector. The Statement of the victim girl recorded by her [PW14] is as per Ex.P9. She has also performed her official duty, as per the order of the Investigating Officer.
(d) CW14- Venkatesh-Head Constable of Chandra Layout police station deposed as PW15. He has stated on oath that, on 18.11.2014, when he was on night duty, the Police Inspector got 16 Spl CC No.596/2014 information that, the accused in this case was in Nayandahalli and as the Police Inspector asked him [CW15] to come along with him, at about 10 to 10.30 P.M., they both [PW15 and the Police Inspector] went to the house of the accused situated at Garden Road, Nayandahalli and at that time, complainant's husband-CW5 was along with them and he [CW5] identified the accused, at that time it was 11 P.M., in the night, they took the accused to their custody and brought him to the police station by 11.30 P.M.,. he [PW15] can identify the accused who was produced before the court. He has also performed his official duty, as per the orders of the Investigating Officer.
(e) CW16-Sudarshan.P.S- the then Police Inspector and the Investigating Officer, Chandra Layout police station, deposed as PW16. He has stated on oath that, on 11.11.2014 at about 9 P.M., when he was in the police station, CW1 along with the victim girl came to the police station and given complaint and on the basis of the complaint, he registered a case in Cr.No.351/2014 and sent the FIR to the Jurisdictional court and his higher officers. The Complaint is already marked as per Ex.P3. The FIR is marked as Ex.P12. As it was midnight, he did not send the victim girl to the medical examination, but, he sent the victim girl along with CW1 and asked them to come on the next day morning; On the same day i..e, on 18.11.2014, he deputed CW14 to trace out the accused and on information received by him [PW16] he along with CW14 went to the house of the accused situated near Ganesh Temple, Nayandahalli and took him to the custody at 11 P.M., and brought him [accused] to the police station at about 11.30 P.M., 17 Spl CC No.596/2014 and enquired with him and arrested the accused by complying the arrest formalities. He[ PW16] can identify the accused before the court; On 19.11.2014, he recorded the voluntary statement of the accused and went to the incident spot by calling CWs-3 and 4 as panchas. CWs-1 and 2 were also present at the spot and showed the incident spot, accordingly, he [PW16] conducted Spot Mahazar as per Ex.P4 in between 8.30 A.M., to 9.15 A.M., and obtained the signatures of panchas and CW1; the alleged spot of incident is, Cement Katte, situated below the staircase of parking area of Building belonging to HMT Basanna, located near No.84:57(A), Nayandahalli Garden Road, besides Ganesha Temple. Thereafter, he has recorded the statements of CWs-5, 6 and 7. CW7 has given her statement as per Ex.P7 before him. Thereafter, he [PW16] sent the accused for medical examination to Victoria hospital with a requisition. Likewise, he sent the victim girl to KC General Hospital for medical examination with a requisition. After the medical examination of the victim girl and the accused, the concerned police officials were present before him and CW13 gave Report as per Ex.P2 with reference to taking the accused to the medical examination; As there were no Woman PSI, in his police station, he called CW15 to the police station and sent her to the house of the victim girl to record her statement. Accordingly, CW15 went to the house of the victim girl and recorded her statement as per Ex.P9; on 19.11.2014, he sent the victim girl to KC General Hospital along with his staffs, there the doctors done some medical test and told that some tests are to done and asked to bring the victim girl on the next day, accordingly, on 20.11.2014 he sent the victim girl along with his staff to KC General Hospital 18 Spl CC No.596/2014 and after her medical examination, the concerned staff brought back the victim girl and produced before him and gave report as per Ex.P6; On 20.11.2014, he sent a Requisition to CW8 to issue Age proof certificate of the victim girl, accordingly, CW8 issued the Certificate as per Ex.P1 and on the same day, he received the Medical certificate of the victim girl as per Ex.P5; On 24.11.2014, he received the Medical certificate of the accused as per Ex.P8; On 27.11.2014, he sent the victim girl for getting recorded her statement under Sec.164 of Cr.P.C before the Learned Magistrate and the said Statement of the victim girl given under Sec.164 of Cr.P.C. is as per Ex.P10; On 30.11.2014, after collecting the materials, he filed charge-sheet before the court. Thus, he [PW16] has performed his statutory duty of investigation and his evidence is corroborated with the said witnesses, specifically the victim and other material witnesses that, the accused had committed the sexual assault on the victim girl.
23. From the evidence of the material witnesses i.e., the victim girl, her father, mother and her father's sister gave the clinching evidence. The admission on the part of the accused himself is clear and unequivocal, who has stated during his Statement recorded under Sec.313 of Cr.P.C about his touching of her ]victim girl] breast. The accused did not cross-examine the material witnesses i..e, PWs-3, 4, 6, 7, 14, 15 and 16 and the important witness PW5-victim girl. It is clear admission, by not cross-examining them, about his guilt. These witnesses during their evidence supported the prosecution case. It is proof of the incident, inclusive of date, time and place. From his[accused] 19 Spl CC No.596/2014 statement under Sec.313 of Cr.P.C, it is admission about the place of incident and the commission of offence by lifting the clothes of the victim girl and touching her breasts, which is considered to be the private part of the victim girl, she was aged about 6 years during the said incident coming within the purview of "Child" below the age of 12 years under POCSO Act. According to him[accused] as per his statement under Sec.313 of Cr.P.C, while reading out the incriminating evidence of the witnesses, he has stated that, "he touched only the chests, but, he has not committed the alleged offence". Thus, on explaining the circumstances appearing in the evidence against him [accused] for the purpose of enabling the accused personally and thereby examined the accused under Sec.313 of Cr.P.C. He answered to the incriminating evidence about the touching of breasts of the victim girl that, he did it, but, was not with sexual intent. He [accused] did not chose to lead evidence to support his defence that, he had no sexual intent. Nor submitted his written-statement, to prove the same with cogent evidence. However the evidence of the very victim girl being direct evidence and the complainant[PW4] and the material witnesses [PWs-3 and 6] and the very place of incident which was under the staircase of the building, the place which was an isolated area, during that period. The accused touched the breasts of the victim girl amounting to committing of offence with sexual intent. Thus, by placing clinching and corroborative evidence specifically the evidence of the victim girl-PW5 and material witnesses [PWs-3, 4 and 6] coupled with the doctor's evidence [PW7] and the official witnesses PWs-14, 15 and 16 and the clear admission of the accused during recording his statement under Sec.313 of Cr.P.C, 20 Spl CC No.596/2014 the prosecution has proved the guilt of the accused, as because, the very circumstance, time, place of incident themselves indicate that, normal and prudent person did not take a child whose parents were outside and not nearer to child and to that place [under the staircase of the building, which is expected to be an isolated place] and doing such an act [his such physical conduct] touching chests. As per his admission and as per clinching evidence of victim girl that, he [accused] squeezed the breasts of the victim girl and scratched and she felt pain, which is natural to be suffered by such a teen aged child of 6 years. The act of the accused touching the breasts of PW5/victim girl with a sexual intent is amounting to aggravated sexual assault on the person of the victim girl [PW5], below the age of 12 years. It is also outraging the modesty of the victim girl/PW5. I would like to refer the object of the POCSO Act, 2012 and the provisions enshrined in the Constitution. The provisions enshrined in the Constitution reads thus:
"The interest of the child, both as a victim as well as a witness, need to be protected. It is felt that offences against children need o be defined explicitly and countered through commensurate penalties as an effective deterrence".
"Article 15 of the Constitution confers upon the State powers to make special provision for children. Article 39 provides that the State shall, in particular, direct its policy towards securing that the tender age of children are not abused and their childhood and youth are protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity".21 Spl CC No.596/2014
The object and essence of Special Act [POCSO Act, 2012] reads thus:
"It is necessary for the proper development of the child that his or her rights to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child."
Further, it is the object and essence of the said Act that:
"It is imperative that the law operates in manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy, physical, emotional, intellectual and social development of a child".
24. Hence, it is held that, the accused had performed the illegal sex act [sexual abuse/sexual assault] on the victim girl under Sec.9(m) of POCSO Act, 2012, as PW5/victim girl was aged about 6 years [below 12 years of age] and was subjected to sexual assault by the accused. It has also attracted the provision of Sec.354 of IPC, i..e, outraging the modesty of the victim girl. Hence, the accused is liable for conviction under Sec.354 of IPC and Sec.10 of POCSO Act, 2012, as he has committed the offence of aggravated sexual assault on the victim girl. Hence, POINTS-1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE.
25. POINT NO.3:- In the result, I proceed to pass the following:
22 Spl CC No.596/2014ORDER Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences coming within the purview of Sec.9(m) of POCSO Act, 2012 and punishable under Sec.10 of POCSO Act, 2012 and Sec.354 of IPC.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 14th day of February, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
19.2.2018 ORDER REGARDING SENTENCE The accused/convict is produced from the judicial custody. . The learned counsel for the accused is absent. The learned Public Prosecutor is present. Heard on sentence. The accused submitted that, "He has not committed any offence, he is a poor person, having low income and his wife was also doing work for their family and he has 4 children. Hence, the accused prayed for taking lenient view in imposing the sentence".
On the other hand the learned Public Prosecutor submitted that, the offence proved to be committed by the accused is heinous in nature and coming within the purview of Sec.9(m) of POCSO Act, 2012 which was against the minor victim girl below the age of 12 years and Sec.10 of POCSO Act, 2012 is 23 Spl CC No.596/2014 attracting. Even Sec.354 of IPC is also attracting, as the accused has outraged the modesty of the victim girl. Hence, the accused is not entitled for any leniency to be extended and maximum sentence to be awarded.
Considering the submission made by the learned Public Prosecutor, and the accused on award of sentence, it is held about the guilt of the accused which is heinous in nature and it was on the victim girl below the age of 12 years; Sec.10 of POCSO Act, 2012 is attracted, and it is aggravated sexual assault. Hence, the accused shall be punished with imprisonment as prescribed under Sec.10 of POCSO Act, 2012. The description of imprisonment is for a term which shall not be less than 5 years, but, which may extend to 7 years and he shall be liable to fine also. So also the accused is liable for the offence of outraging of the modesty of PW5/victim girl punishable under Sec.354 of IPC which prescribed minimum of One Year Imprisonment. Therefore, considering the submission of the accused about his family condition and the gravity of the offence, it is proceeded to pass the following:
SENTENCE
(a) The accused/convict shall undergo imprisonment for a period of 5 Years for the offence punishable under Sec.10 of POCSO Act, 2012 and he shall pay a fine of Rs. 20,000/-.
In default of payment of fine amount, the accused shall undergo Simple Imprisonment for a period of 3 Months.
24 Spl CC No.596/2014(b) Further, the accused/convict shall undergo imprisonment for a period of One Year for the offence punishable under Sec.354 of IPC and he shall pay a fine of Rs. 5,000/-. In default of payment of fine amount, the accused shall undergo Simple Imprisonment for a period of One Month.
Both (a) and (b) sentences shall run concurrently.
After payment of total fine amount of Rs. 25,000/- by the accused, it is ordered to pay Rs. 22,000/- to the victim girl as victim compensation and remaining amount of Rs.3,000/- shall be confiscated to the State.
The period of detention undergone by the accused/convict 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.
MO-1 i.e., the CD is ordered to be annexed to Ex.P10, which is the Statement of the victim girl recorded under Sec.164 of Cr.P.C by the Learned Magistrate.
Call for Report for victim compensation from the concerned Police Inspector.
25 Spl CC No.596/2014Copy of this Judgment and order on Sentence shall be supplied to the accused forthwith.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 19th day of February, 2018] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Susheelamma CW8 14.10.2015
Pw.2 Hanumamurthy CW13 14.10.2105
PW.3 Sanjeevamma CW6 14.10.2015
Pw.4 Rathna CW1 14.10.2015
Pw.5 Victim girl CW2 14.10.2015
Pw.6 Muniyelappa CW5 14.10.2015
Pw.7 Dr.R.Leelavathi CW9 25.11.2015
Pw.8 Dr.Lakshmipathy CW10 25.11.2015
Pw.9 Poornima CW12 19.3.2016
Pw.10 Robert CW3 24.3.2016
Pw.11 Babu CW4 24.3.2016
Pw.12 Ammayamma CW5 24.3.2016
Pw.13 Dr.Bheemappa Havanur CW11 12.4.2016
Pw.14 Soumya CW15 7.11.2017
26 Spl CC No.596/2014
PW.15 Venkatesh CW14 5.1.2018
PW.16 Sudarshan.P.S CW16 16.1.2018
Documents marked for the prosecution:
Ex.P1 Certificate issued by PW1- Head Mistress,
Government School, Nayandahalli, Mysore Road, Bangalore, certifying the date of birth of the victim girl/PW5 as 21.5.2008 Ex.P1(a) Signature of PW1 Ex.P1(b) Signature of Pw16 Ex.P2 Report given by PW2regarding taking the accused to the Victoria Hospital for medical examination and after his medical examination, producing the accused before the Police Inspector Ex.P2(a) Signature of PW2 Ex.P2(b) Signature of PW16 Ex.P3 Statement/complaint of PW4 given before the complainant police Ex.P3(a) Signature of PW4 Ex.P3(b) Signature of PW16 Ex.P4 Spot Mahazar dated: 19.11.2014 of the incident Ex.P4(a) Signature of PW4 Ex.P4(b) Signature of PW10 Ex.P4(c) Signature of PW11 Ex.P5 MLC Out patient Record of PW5/victim girl Ex.P5(a) Relevant portion of Ex.P5 Ex.P5(b) Signature of PW7 Ex.P5(c) Relevant portion of Ex.P5 27 Spl CC No.596/2014 Ex.P5(d) Signature of PW8 Ex.P5(e) Signature of PW16 Ex.P6 Report given by PW9-WPC- complainant police station regarding taking the victim girl to the K.C.General Hospital for medical examination and after her examination, producing the victim girl before the Police Inspector of the complainant police station Ex.P6(a) Signature of PW9 Ex.P6(b) Signature of PW16 Ex.P7 Statement of PW12 given before the complainant police station under Sec.161 of Cr.P.C Ex.P8 Medical Report of the accused Ex.P8(a) Signature of PW13 Ex.P9 Statement of PW5/victim girl given before PW14-WPSI Ex.P9(a) Signature of PW14 Ex.P9(b) Signature of PW4 Ex.P9(c) Signature of PW16 Ex.P10 Statement of PW5/victim girl given before the Learned Magistrate under Sec.164 of Cr.P.C Ex.P11 Final Opinion in connection with Ex.P5 with reference to PW5/ victim girl Ex.P11(a) Signature of PW7 Ex.P12 FIR Ex.P12(a) Signature of PW16 28 Spl CC No.596/2014 Material Objects marked for the prosecution:
MO-1 CD of Ex.P10 Witensses examined, documents and MO marked for the accused: NIL [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
.
29 Spl CC No.596/201414.2.2018 Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences coming within the purview of Sec.9(m) of POCSO Act, 2012 and punishable under Sec.10 of POCSO Act, 2012 and Sec.354 of IPC.
To hear regarding quantum of Sentence by Apart from this, the accused has not complied the provisions of Sec.437(A) of Cr.P.C. Hence, the complainant police are directed to take custody of the accused.
[YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.30 Spl CC No.596/2014
19.2.2018 Sentence pronounced in the open court [vide separate detailed sentence]
(a) The accused/convict shall undergo imprisonment for a period of 5 Years for the offence punishable under Sec.10 of POCSO Act, 2012 and he shall pay a fine of Rs. 20,000/-. In default of payment of fine amount, the accused shall undergo Simple Imprisonment for a period of 3 Months.
(b) Further, the accused/convict shall undergo imprisonment for a period of One Year for the offence punishable under Sec.354 of IPC and he shall pay a fine of Rs. 5,000/-. In default of payment of fine amount, the accused shall undergo Simple Imprisonment for a period of One Month.
Both (a) and (b) sentences shall run concurrently.
After payment of total fine amount of Rs. 25,000/- by the accused, it is ordered to pay Rs.22,000/- to the victim girl as victim compensation and remaining amount 31 Spl CC No.596/2014 of Rs.3,000/- shall be confiscated to the State.
The period of detention undergone by
the accused/convict 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.
MO-1 i.e., the CD is ordered to be
annexed to Ex.P10, which is the
Statement of the victim girl recorded
under Sec.164 of Cr.P.C by the Learned
Magistrate.
Call for Report for victim
compensation from the concerned Police
Inspector.
Copy of this Judgment and order on
Sentence shall be supplied to the accused
forthwith.
[YADAV VANAMALA ANANDRAO]]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
32 Spl CC No.596/2014 33 Spl CC No.596/2014