Bangalore District Court
The State Of Karnataka vs Appu on 23 July, 2018
IN THE COURT OF THE L ADDITIONAL CITY
CIVIL & SESSIONS JUDGE, BENGALURU
Dated this the 23rd Day of July 2018
- : PRESENT: -
SMT. SUSHEELA B.A. LL.B.
L Additional City Civil & Sessions Judge,
BENGALURU
SPECIAL C.C. No. 261/2016
COMPLAINANT The State of Karnataka,
By Adugodi Police Station,
Bengaluru
Special Public Prosecutor-Bangalore
/ VERSUS /
ACCUSED Appu,
Swamiyappa, 22 years,
R/at. No.54/69, 1st Main,
Near Anjeneya Temple,
Rajendra Nagar,
Koramangala,
Bengaluru
Sri.N.S.-Advocate
1 Date of commission of offence 22-03-2016
2 Date of report of occurrence 22-03-2016
3 Date of arrest of Accused 24-03-2016
Date of release of Accused 03-05-2016
Date of arrest of accused under 25-04-2017
body warrant 7days, 4 months
Period undergone in custody and 1 year
by Accused
4 Date of commencement of evidence 09-12-2016
2 Spl.C.C.No.261/2016
5 Date of closing of evidence 06-07-2018
6 Name of the complainant Sameena Taj
7 Offences complained of Sec.323, 377, 506,
201-IPC & Sec. 3
(a), 4, 6-POCSO
Act, 23-J.J.Act
8 Opinion of the Judge Accused is
acquitted
9 Order of Sentence As per the final
order
JUDGMENT
This charge sheet filed by Police Inspector, Adugodi Police Station-Bengaluru, against accused for the offences punishable under Section 377, 323, 506, 201 of I.P.C., Section 3(a), 4 and 6 of POCSO Act, 2012 and Section 75 of J.J. Act, 2015.
2. The charge sheet discloses as per column No.12 and 13 is filed against accused No.1-Appu, S/o. Swamiayyappa and accused No.2-Kalu, but no such complete address of accused No.2-Kalu finds a place. As per the Shara mentioned in the charge sheet at note in column No.1, the FIR filed by mentioning accused's name-Kalu, but he is the victim viz., Imran @ Kalu and his name mentioned in charge 3 Spl.C.C.No.261/2016 sheet column No.15, as such the charge sheet filed against accused No.1 only, and this Court also proceeded against accused No.1 only.
3. The case of the prosecution in brief, as per the prosecution papers, is stated as follows:
The accused-Appu is resident of Rajendra Nagar of Koramangala. On 22-03-2016 at about 09.00 p.m., the accused took Cw.2 to Cw.5-the minor boys, who were playing at Rajendra Nagar Circle, enticing them that he is going to get Biryani to them, took them behind National Games Village, Hemavathi Block of Koramangala, near the compound at vacant place by showing blade towards them threatened with dire consequences and sexually abused them by removing their clothes, when they refused for the said act, at that time the accused assaulted Cw.2 to Cw.5 through his hands and thereafter sexually abused on them by putting his private part into their mouth forcibly and further threatened them if they disclose the said act to anybody he is going to kill them by assaulting with blade and bear bottle. On the basis of complaint lodged by the complainant-being mother of one 4 Spl.C.C.No.261/2016 of the victim, the police registered the case against the accused for the offences punishable under Section 506 read with Section 34 of I.P.C., Section 3(a), 4 of POCSO Act and Section 23 of J.J. Act.
4. The Investigating Officer has investigated the same and filed charge sheet against accused for the offences punishable under Section 377, 323, 506, 201 of I.P.C., Section 3(a), 4 and 6 of POCSO Act, 2012 and Section 23 of J.J. Act, 2015. Earlier to that, on 23-03-2016 the accused was arrested and produced before Court and remand judicial custody. Thereafter, after filing the charge sheet, as usual the accused was produced before the Court. The copy of charge sheet furnished to him as contemplated under Section 207 of Cr.P.C. Thereafter the learned advocate for accused submitted that there is no argument before framing charge and requested to frame charge. On perusal of charge sheet, the learned predecessor in office framed charge on 07-10-2016 for the offences punishable under Section 323, 377, 506, 201 of IPC, Section 3(a), 4 and 6 of POCSO Act and Section 23 of J.J. Act. The contents of charge read over and explained in 5 Spl.C.C.No.261/2016 Kannada to the accused, he pleaded not guilty and submits crime to be tried. Thereafter the case against accused set down for prosecution evidence.
5. The prosecution in order to establish the guilt of the accused has examined 14 witnesses as Pw.1 to Pw.14, got marked as many as 35 documents as Ex.P1 to Ex.P35, nine material objects as MO1 to MO9 and closed his side evidence. In view of incriminating evidence appeared against accused, he was examined under Section 313 of Cr.P.C., by recording his statement. The accused denied the alleged incriminating evidence appeared against him as false. Thereafter arguments heard from both the sides and the matter is set down for judgment.
6. Having regard to the facts, circumstances and arguments submitted by both the sides, the following points that arise for my consideration are as under:-
1. DgÉÆæAiÀÄÄ PÉÆÃgÀªÀÄAUÀ®zÀ gÁeÉÃAzÀæ£ÀUg À zÀ À ¤ªÁ¹AiÀiÁVzÀÄÝ ¢£ÁAPÀB22-03-2016gÀAzÀÄ gÁwæ-09.00UÀAmÉ ¸ÀªÀÄAiÀÄzÀ°è DqÀÄUÉÆÃr ¥ÉÇðøï oÁuÁ ¸Àgº À À¢£ Ý À gÁeÉÃAzÀæ£ÀUgÀ À ¸ÀPÀð¯ï §½ DlªÁqÀÄwÛzÀÝ C¥Áæ¥Àª Û AÀ iÀĸÀÌgÁzÀ ¸ÁQë-2 jAzÀ ¸ÁQë-5 gÀªg À ÀÄ UÀ¼£ À ÀÄß CAUÀr¬ÄAzÀ ©jAiÀiÁ¤ PÀÉÆr¸ÀĪÀÅzÁV ¥ÀŸÀ¯Á¬Ä¹ vÀ£Àß eÉÆvÉ PÉÆÃgÀªÀÄAUÀ®zÀ gÁ¶ÖçÃAiÀÄ QæÃqÁ UÁæªÀÄ, J£ïf«zÀ dÄår²AiÀÄ¯ï ¨ÁèPï »A¨sÁUÀzÀ ºÉêÀiÁªÀw ¨ÁèPï ºÀwg Û zÀ À 6 Spl.C.C.No.261/2016 PÀA¥ÀËAqï §½ ¤dð£À ¥ÀæzÉñÀPÉÌ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃV, vÀ£Àß eÉÆvÉ ¯ÉAVPÀ QæAiÉÄUÉ ¸ÀºP À j À ¸À¢zÀg Ý É ¸Á¬Ä¸ÀĪÀÅzÁV ºÉzj À ¹ MvÁÛAiÀÄ¥ÀǪÀðPÀªÁV CªÀgÀ §mÉÖUÀ¼£ À ÀÄß ©aѹ CªÀgÄÀ ¯ÉÊAVPÀ QæAiÉÄUÉ M¥Àà¢zÁÝUÀ CªÀgÀ ªÉÄÃ¯É PÉÊU½ À AzÀ ºÀ¯èÉ ªÀiÁr ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A.323gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgAÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï¥ÀPÀëzÀªgÀ ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
2. DgÉÆæAiÀÄÄ ªÉÄÃ¯É ºÉýzÀ ¢£ÁAPÀ, ¸ÀªÀÄAiÀÄ ºÁUÀÆ ¸ÀAzÀ¨ð Às zÀ°è vÀ£Àß PÀÈvÀåªÀ£ÀÄß ªÀÄÄAzÀĪÀj¹ ¸ÁQë-2 ºÁUÀÆ ¸ÁQë-5 gÀªjÀ UÉ M§âgÀ £ÀAvÀgÀ M§âgÀ ¨Á¬ÄUÉ ªÀÄvÀÄÛ UÀÄzÀzÁégP À ÌÉ vÀ£ßÀ ²±Àߪ£À ÀÄß MvÁÛAiÀÄ¥ÀǪÀðPÀªÁV ºÁQ ¯ÉÊAVPÀQæAiÉÄ £ÀqɹzÀÄÝ, ¸ÁQë- 3 ªÀÄvÀÄÛ ¸ÁQë-4gÀªg À À ¨Á¬ÄUÉ vÀ£Àß ²±Àߪ£ À ÀÄß MvÁÛAiÀÄ ¥ÀǪÀðPÀªÁV ºÁQ C£ÉʸÀVðPÀ ¯ÉÊAVPÀQæAiÉÄ £Àqɹ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A 377 ªÀÄvÀÄÛ PÀ®A 3(J), 4 ªÀÄvÀÄÛ 6 ¥ÉÇPÉÆìà PÁ¬ÄzÉ ºÁUÀÆ PÀ®A.23 eÉeÉ DPïÖ 2015 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgÀÉAzÀÄ ¥Áæ¹PÀÆåµÀ£ï ¥ÀPÀëzÀªgÀ ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ¥Àr¸ÀÄvÁÛgA É iÉÄ?
3. DgÉÆæAiÀÄÄ CzÉà ¢£ÁAPÀ, ¸À¼ Ü À ºÁUÀÆ ¸ÀªÀÄAiÀÄzÀ°è vÀ£ßÀ PÀÈvÀåªÀ£ÀÄß ªÀÄÄAzÀĪÀj¹ ¸Àzj À «ZÁgÀª£ À ÀÄß AiÀiÁjUÁzÀgÆ À ºÉýzÀgÉ ¨ÉÃè qï ªÀÄvÀÄÛ ©AiÀÄgï ¨Ál¯ï¤AzÀ ºÉÆqÉzÀÄ PÉÆ¯É ªÀiÁqÀĪÀÅzÁV ¥Áæt¨Ézj À PÉ ºÁQ ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A.506 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï¥ÀPÀëzÀªgÀ ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgA É iÉÄ?
4. DgÉÆæAiÀÄÄ CzÉà ¢£ÁAPÀ, ¸À¼ Ü À ºÁUÀÆ ¸ÀªÀÄAiÀÄzÀ°è vÀ£Àß PÀÈvÀåªÀ£ÀÄß ªÀÄÄAzÀĪÀj¹ ZÁ.¸Á.2 jAzÀ ZÁ¸Á.5 gÀªg À £ À ÄÀ ß ºÉzj À ¸À®Ä §¼À¹zÀÝ ¨ÉÃè qï£ÀÄß J¯ÉÆÃè ©¸Ár ¸ÁPÀëå £Á±À ªÀiÁr ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÀÉ PÀ®A 201 gÀrAiÀÄ°è ²PÁëºÀðªÁzÀ C¥ÀgÁzÀª s £ À ÀÄß J¸ÀVzÁÝgA ÀÉ zÀÄ ¥Áæ¹PÀÆåµÀ£ï¥ÀPÀëzÀªg À ÀÄ ¸ÀA±ÀAiÀiÁwÃvÀª À ÁV gÀÄdĪÁvÀÄ ¥Àr¸ÀÄvÁÛgA É iÉÄ?
5. AiÀiÁªÀ DzÉñÀ?
7. My findings on the above points are as under:-
Point No.1: In the Negative.
Point No.2: In the Negative.
Point No.3: In the Negative.7 Spl.C.C.No.261/2016
Point No.4: In the Negative.
Point No.5: As per the final orders for following:
REASONS
8. Point No.1 to 4:- As these points are inter- related, hence I have taken up together for my consideration in order to avoid repetition of reasons.
9. Perused the entire record, charge sheet, evidence produced both at oral and documentary and arguments canvassed by the learned advocate for the accused and the learned Special Public Prosecutor.
10. In order to prove the alleged offences against the accused, the prosecution examined 14 witnesses as Pw.1 to Pw.14, got marked as many as 35 documents as Ex.P1 to Ex.P35, nine material objects as MO1 to MO9. As per the prosecution case, Pw.1 to Pw.3 and Pw.8 are the victim boys, Pw.4 is the complainant, Pw.5 to Pw.7 and Pw.11 are the relatives of victim boys, Pw.9 and Pw.10 are the doctors, Pw.14 is the Panch witness, Pw.12 and Pw.13 are the police personnel and Investigation Officer. Hence, this Court shall 8 Spl.C.C.No.261/2016 proceed to see whether the evidence of said witnesses is sufficient for establishing the alleged offences against accused.
11. In order to establish the alleged offences against accused, the prosecution is required to prove that the accused-Appu who is resident of Rajendra Nagar of Koramangala, on 22-03-2016 at about 09.00 p.m., took Cw.2 to Cw.5-the minor boys, who were playing at Rajendra Nagar Circle, by enticing them that he is going to get Biryani, took them behind to National Games Village, Hemavathi Block of Koramangala, near the compound at vacant place by showing blade towards them threatened with dire consequences and sexually abused them by removing their clothes, when they refused for the said act, he assaulted Cw.2 to Cw.5 through his hands and thereafter sexually abused on them by putting his private part into their mouth forcibly, further threatened them if they disclose the said act to anybody he is going to kill them by assaulting with blade and bear bottle and thereby committed offences punishable under Section 377, 323, 506, 201 of I.P.C., Section 3(a), 4 and 6 of POCSO Act, 2012 and 9 Spl.C.C.No.261/2016 Section 75 of J.J. Act, 2015. Hence this Court shall proceed to see whether the prosecution has succeeded in establishing all the above said ingredients of the alleged offences against the accused beyond all reasonable doubt.
12. Before venturing into scan the available material evidence on record, it is necessary to mention the very definition of offences under Section 377, 323, 506, 201 of I.P.C., Section 3(a), 4 and 6 of POCSO Act, 2012 and Section 23 of J.J. Act, 2015.
Section 377 of IPC defines that:
Unnatural offences.-Whoever. Voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Section 323 of IPC defines that:
Punishment for voluntarily causing hurt.- Whoever. Except in the case provided for by section 334, voluntarily causes hurt shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 506 of IPC defines that:
Punishment for criminal intimidation-Whoever commits the offence or criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.10 Spl.C.C.No.261/2016
Section 201 of IPC defines that:
Causing disappearance of evidence of offence, or giving false information to screen offender.- Whoever knowing or having reason to believe, that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment or with that intention gives any information respecting the offence which he knows or believes to be false.
If a Capital offence.-Shall if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
If punishable with imprisonment for life.-And if the offence is punishable with (Imprisonment for life), or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.
If punishable with less than ten years' imprisonment- And if the offence is punishable with imprisonment for any term not extending ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.
Section 3(A) of POCSO Act defines that:
Penetrative Sexual Assault: A person is said to commit Penetrative sexual assault if he penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a child or makes the child to do so with him or any other person.
Section 4 of POCSO Act defines that:
Punishment for penetrative Sexual Assault: Whoever commits penetrative sexual assault shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may 11 Spl.C.C.No.261/2016 extend to imprisonment for life, and shall also be liable to fine.
Section 6 of POCSO Act defines that:
Punishment for aggravated penetrative Sexual Assault: Whoever commits aggravated penetrative sexual assault shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine.
Section 23 of J.J. Act, defines that:
Punishment for cruelty to juvenile of child:- Whoever, having the actual charge of or control over, a juvenile or the child, assaults, abandons, exposes or willfully neglects the juvenile or causes or procures him to be assaulted, abandoned, exposed or neglected in a manner likely to cause such juvenile or the child unnecessary mental or physical suffering shall be punishable with imprisonment for a term which may extend to six months, or fine, or with both.
13. By going through the facts and circumstances it is just and proper to mention the presumption as per section 29 of POCSO Act, wherein it is defined that: "Presumption as to certain offences- Where a person is prosecuted for committing or abetting to attempting to commit any offence under Sections 3, 5, 7 and 9 of this Act, the Special Court shall presume, that such person has committed or abetted to attempted to commit the offence, as the case may be unless the contrary is proved."
With these observations, now left with available material evidence produced by the prosecution to consider whether the 12 Spl.C.C.No.261/2016 prosecution proved the alleged offences against accused beyond all reasonable doubt or not or it probablise the defense of the accused as per Section 30 of POCSO Act in respect of POCSO Offences i.e., Section 30 of POCSO Act, 2012. It defines that: "Presumption of culpable mental state.-
(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as on offence in that prosecution.(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability." Now left with the evidence of Pw.4-the complainant and mother of Cw.2-the victim boy-Yasir.
14. By going through the evidence of Pw.4-Sameena Taj, she has deposed that on 22-03-2016 her son-Yasir went out of the house at about 08.30 p.m., but didn't return even though the time was 09.00 p.m., as such she started to 13 Spl.C.C.No.261/2016 search for him, at about 10.30 p.m., her son-Yasir and his friends-Toefeeq, Faizal and Kalu came by crying. By that time she had contacted her brother-Irfran over phone stating that Yasir went out of the house and not yet returned, immediately her brother-Irfran came and brought her son along with his friends to the house. The cheek of her son was swollen, on enquiry he told that Kalu told taken him along with his three other friends stating that he is going get Biryani, inside NGV Complex and left them with a person who is the accused herein. The accused assaulted her son over neck through blade and also with bottle. The accused also passed urine and kept his private part into the mouth of Cw.2 to Cw.4 and scolded them in filthy language by threatening them to bring money with dire consequences. After hearing the same, she lodged complaint as per Ex.P4 and her signature is Ex.P4(a) and the said complaint was lodged at 10.30 p.m., on the very same day. On the next day morning the police came to the spot, conducted mahazar as per Ex.P5 and her signature is Ex.P5(a), she has also identified the accused before the Court. The police conducted spot mahazar on 23-03-2016. 14 Spl.C.C.No.261/2016
15. No doubt it is true that she has supported the case of the prosecution initially in her chief examination, but in her cross-examination the accused tested her veracity by eliciting some commission and omission and also elicited that she doesn't know read and write Kannada, she has seen MO1-bottle near NGV complex, she has lodged complaint as per Ex.P4, MO1 is not broken bottle, the police not obtained her signature on MO1, she cannot say any special identification mark to identify MO1 which is said to have been seized by the police. Further she has stated that MO1 was seized at about 10.30 a.m., as per Ex.P5, near NGV- Koramangala. Further she has deposed that she cannot say on which place the incident taken place, she cannot say who had written Ex.P5, the said mahazar was written on 22-03- 2016, whereas Ex.P5 discloses that the said document was written on 23-03-2016, except writing that the accused had taken her children and committed offences, none of the facts and circumstances has been written in Ex.P5, Irfran also signed the said document. She cannot say where the accused was residing. Pw.1 to Pw.3 is residing in the same area. She 15 Spl.C.C.No.261/2016 has stated about missing of her son and other children to her brother only after returning of the children at about 10.30 p.m., whereas in her chief examination, she has stated about missing of her son earlier to he came to her house told to her brother, which contradicts with each other. Her brother demanded Rs.1 Lakhs from the accused, but the accused expressed his inability to give the same, for that this false complaint was lodged, for that it is her answer that she has not asked, but her brother asked said amount when the wife of accused came to her house asking them to take back the complaint lodged by this witness against her husband. However, the accused denied each and every word which is contradicts to his defense, for that she has denied the same.
16. It is the defense of the accused that he is residing nearby the residence of this witness and near by their house Anjaneya Temple is situated, in respect of performing of rituals in the temple, there was galata between the accused and this witness family members and due to vengeance she has lodged false complaint against accused, for that she has denied the same. Further it is the defense of the accused that 16 Spl.C.C.No.261/2016 Cw.2 to Cw.4 having the habit of consuming Whitener and the same came to the knowledge of Kalu and he advised them not to consume the same, for that a galata was taken place and he brought Cw.2 to Cw.4 to their respective houses and he has not committed any offences as alleged against him, for that she has denied the same. No doubt it is true the complainant even at her cross-examination supported to the case of prosecution, whether her evidence is supported by other corroborative and cogent evidence of victim boys has to be taken into consideration to believe the alleged offences against accused.
17. On perusal of Ex.P4-complaint, she has lodged said complaint on 22-03-2016 at about 11.30 p.m., the compliant is in English, written by some other person, except signing of the same, no such Shara written as to who had written the same. It is mentioned the accused taken the victim boys and sexually harassed them, but no such details as to which minor is sexually harassed by the accused in the complaint. On perusal of MO1, it is not broken bottle, it is a new green bottle. With these observation, now left with the 17 Spl.C.C.No.261/2016 available material evidence of Pw.1-Syed Yasir, one of the victim boy.
18. By going through the evidence of Pw.1, he has deposed that Toefeeq and Faizal are his friends, they are residing in nearby houses, Imran is his father-in-law. On 02- 03-2016 the accused at about 08.00 p.m., called him to come near NGV, when he went there the accused slapped on his left cheek, kept the broken bottle on his neck and also by showing blade demanded him to bring Rs.500/- from his mother, otherwise he is going to cut his neck, immediately he ran away towards his house, after that his mother intimated the said fact to police and the police came and taken the bottle and blade from that spot and he went to house. Here in his chief examination itself he has stated that the incident was taken place on 02-03-2016 at about 08.00 p.m., whereas as per the case of the prosecution the incident taken place on 22-03-2016. Pw.1 further deposed that the police took him to Court, but he can't remember the date, he has given his statement in the Court and at that time his mother also 18 Spl.C.C.No.261/2016 accompanied with him, Ex.P1 is his statement and his signature is Ex.P1(a).
19. On perusal of Ex.P1 it is the statement recorded by the Magistrate under section 164 of Cr.P.C., wherein he has stated that himself, Toefeeq were eating Batani, at that time the accused came there, took them near Passport Office stating that he is going to get Biryani to them, where the accused removed his pant, assaulted on his cheek, broken a bottle and kept on the neck of this witness demanded him to bring Rs.1,000/-, otherwise he is going to cut neck of all his family members, at that time a girl came there, the accused assaulted her and escaped from that spot by jumping the compound wall of Passport Office, thereafter the said girl taken this witness to the house. Here the statement given by this witness is otherwise to the chief examination.
20. As Pw.1 also stated about the statement recorded by the Investigation Officer, the accused cross-examined this witness by eliciting some commission and omission and also elicited that he doesn't know the accused, where he is 19 Spl.C.C.No.261/2016 residing, he doesn't know his friends-Toefeeq and Faizal and in which school they are studying, he has seen the accused today itself that too before the Court and not earlier to that, he doesn't know for what purpose he has come to the Court, he doesn't know Police Inspector-Hemavathi, he doesn't know the name of Police Madam, he doesn't know what she has asked to him, he doesn't know in which station his mother lodged the complaint, in his presence the police not seized blade and bottle and for what purpose they have taken the said articles he doesn't know.
21. Further he has deposed that:
"£Á£ÀÄ ¥ÉÇðøÀjUÉ ¨ÉÃè qï ªÀÄvÀÄÛ ¨Ál¯ï §UÉÎ ºÉý®è. D ¢£À £À£Àß PÀÄwÛUÉUÉ EnÖzÀÝ ¨Ál¯ï MqÉ¢zÀÄÝ £ÁåAiÀiÁ®AiÀÄzÀ°gè ÀĪÀ ¨Ál¯ï CzÀ®.è "
Further he has deposed that he doesn't know where Imran @ Kalu is studying. He has admitted that Imran @ Kalu was consuming Whitener solution on that day and fell unconscious. Further he has admitted that consuming of Whitener solution is a bad habit, the house of accused is situated far away from his house. He has also admitted there is no cordiality between the family members of this witness 20 Spl.C.C.No.261/2016 and Appu and his house is situated near Anjaneya temple. He has also admitted that:
" D zÉêÀ¸ÁÜ£z À À ¥ÀÇeÉAiÀÄ «µÀAiÀÄzÀ°è £ÀªÀÄä ªÀÄ£ÉAiÀĪÀjUÀÄÁ CªÀgÀ ªÀÄ£ÉAiÀĪÀjUÀÄÁ dUÀ¼ªÀ ÁUÀÄwÛvÀÄÛ JAzÀgÉ ¸Àj. D PÁgÀt¢AzÀ DgÉÆæAiÀÄ ªÀÄ£ÉAiÀĪÀgÀ eÉÆvÉ £ÀªÀÄä ªÀÄ£ÉAiÀĪÀgÀÄ ªÀiÁvÀ£ÁqÀÄwÛg° À ®è JAzÀgÉ ¸Àj."
Further he has shown his ignorance what was written in Ex.P1, except signing the same, he doesn't know the contents of Ex.P1.Further he has deposed that:
"D ¢£À £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß ¸ÉßûvÀgÀÄ ºÉÆÃVzÀÝ ¸À¼ Ü Àz° À è d£ÀgÄÀ EzÀgÝ ÀÄ CªÀgÀ ºÉ¸gÀ ÀÄ UÉÆwÛ®.è £À£Àß vÁ¬Ä 8.0 UÀAmÉ £ÀAvÀgÀ J®Æè ºÉÆÃUÀ¨ÁgÀzÀÄ JAzÀÄ PÀqÁØAiÀĪÁV ºÉýzÁÝgÉ JAzÀgÉ ¸Àj. ¥Á¸ï ¥ÉÇÃmïð PÀbÃÉ j J£ïf«¬ÄAzÀ zÀÆgÀz° À z è .É £Á£ÀÄ £À£ÀߣÀÄß ¥Á¸ï ¥ÉÇÃmïð PÀbÃÉ jAiÀÄ §½ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃzÀgÀÄ JAzÀÄ J®Æè ºÉý®è. £Á£ÀÄ ªÀÄ£ÉAiÀÄ°èAiÉÄà ºÉZÁÑV 7.00 UÀAmÉ £ÀAvÀgÀ NzÀ®Ä ±ÀÄgÀÄ ªÀiÁqÀÄvÉÃÛ £É."
He has also admitted that:
"D ¢£À PÁ®Ä ¸À®Æå±À£ï£À£ÀÄß PÀÄrAiÀÄÄwÛzÀÄÝ CzÀ£ÀÄß £ÉÆÃrzÀ d£À D jÃw ªÀiÁqÀ¨ÃÉ qÀ JAzÀÄ DvÀ¤UÉ ºÉÆqÉ¢zÀÄÝ ºÉzj À ¹zÀj Ý AzÀ £ÁªÉ®g è ÀÆ ªÀÄ£ÉUÉ NrzɪÀÅ JAzÀgÉ ¸Àj."
If the above said statement is taken into consideration, that too as elicited by accused through this witness, there is a doubt of involvement of the accused by causing alleged offences against the victim boys. When there arises discrepancy in the evidence of Pw.1 and no corroborated and cogent evidence placed on record through him by the 21 Spl.C.C.No.261/2016 prosecution, it is not safe to accept the alleged offences against accused beyond all reasonable doubt.
22. By going through the evidence of Pw.2-Faizal @ Ali, he has deposed that he has seen the accused, on 22nd Monday night at 08.30 p.m., the accused took him near N.G.V. compound, at that time Yasir, Palat @ Imran also accompanied with them. Again he has stated at that time they were purchasing Batani near N.G.V. Gate, at that time the accused came and did bad thing on them. He has put his private part on the mouth of this witness, like wise he has also made such act on his brother Toefeeq, he put his private part on Yasir and Palat @ Imran's anus. Further the accused by keeping the broken bottle piece on his neck threatened him with dire consequences stating not to disclose this act to anybody or to police and also scolded him in filthy language not only to him, but also to his mother. Due to the act of accused he has received bleeding injury on his mouth and also he has passed urine on him. On seeing the maternal uncle of Yasir near auto they informed about the incident to him and thereafter informed the same to the father of Yasir, 22 Spl.C.C.No.261/2016 at that time, the time was 10.30 p.m., and on the next day the complaint was lodged, the police enquired him and recorded his statement and he has given his statement before police as per Ex.P2 and his signatures are Ex.P2(a) and Ex.P2(b).
23. On perusal of Ex.P2-the victim's statement given before Magistrate, he has stated that on that day he was near Double Stores, eating Batani, at that time the accused came there, called him that he is going to get Biryani, took him near NGV, there he removed his pant and did bad thing, when he refused he assaulted him with bottle and also with stone. He has scolded his mother and demanded him to bring money to him, otherwise he is going to cut the neck of all his family members and thereafter the accused ran away from that spot by jumping across the wall, at that time the father- in-law of this witness was on the way at that place and he had taken him and brought to the house and he has stated all the things to his mother and thereafter he was taken to the doctor for medical examination.
24. Here, on perusal of chief examination of this 23 Spl.C.C.No.261/2016 witness and the statement given before the Magistrate as per Ex.p2, there is no doubt corroboration to some extent and some discrepancies with regard to the alleged incident, as such it is just and proper to look into whether in the cross- examination of this witness he stick on to his chief examination or to the statement given before the police or to the statement given before the Magistrate to consider about the guilt of the accused.
25. By going through the cross-examination of Pw.2, the accused tested the veracity of evidence of this witness by eliciting some commission and omission and also elicited that he has not seen the accused earlier, on the fatal date of the incident at Koramangala slum at 08.30p.m., there was darkness and no electric light, the accused has not taken him to anywhere. He has admitted that due to darkness, he has not gone anywhere to purchase Batani He has deposed that:
"DgÉÆæAiÀÄÄ £À£ÀUÉ vÀ£Àß §Ä¯Á誣 À ÀÄß £À£Àß ¨Á¬ÄAiÀÄ M¼ÀUÉ ºÁUÀÄ £À£Àß CtÚ v˦üP£ À À ¨Á¬ÄAiÀÄ M¼ÀUÉ ºÁQgÀĪÀÅ¢®è. CzÉÃjÃw DgÉÆæAiÀÄÄ AiÀiÁ¹gï ªÀÄvÀÄÛ ¥À®mï£À UÀÄzÀzÁégP À ÉÌ vÀ£ßÀ §Ä¯Á誣 À ÀÄß EnÖgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. DgÀÉÆæAiÀÄÄ ¨Ál¯ï MqÉzÄÀ CzÀgÀ UÁf£À ZÀÆgÀ£ÀÄß £À£Àß PÀÄwÛUÉ ªÉÄÃ¯É EnÖgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. £À£Àß vÁ¬ÄAiÀÄ §UÉÎ AiÀiÁgÀÆ PÉlÖzÁV ¨ÉÊ¢gÀĪÀÅ¢®è. DgÉÆæAiÀÄÄ £À£ßÀ ¨Á¬ÄUÉ ªÀÄÆvÀ櫸Àdð£É ªÀÆrgÀĪÀÅ¢®è, £À£Àß ¨Á¬Ä¬ÄAzÀ gÀPÛÀ §A¢gÀĪÀÅ¢®è.24 Spl.C.C.No.261/2016
£Á£ÀÄ WÀl£É §UÉÎ AiÀiÁ¹Ãgï vÀAzÉUÁUÀ° ºÁUÀÆ EvÀgj À UÁUÀ° ºÉýgÀĪÀÅ¢®è JAzÀgÉ ¸Àj.."
Further he has deposed that he has given his evidence and statement on the say of the police, except that he doesn't know anything about the incident. He has not given any statement before police, he has put his signature on blank paper, the police not seized his cloths and not taken him to the doctor for medical examination. He has also admitted that:
"DgÉÆæAiÀÄÄ £À£Àß ªÉÄÃ¯É AiÀiÁªÀÅzÉà PÉlÖ PÉ®¸À ªÀiÁrgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. D ¢£À D ¸ÀªÀÄAiÀÄzÀ°è £À£Àß eÉÆvÉ AiÀiÁ¹gï ªÀÄvÀÄÛ ¥À®mï EgÀ°®è JAzÀgÉ ¸Àj. £Á£ÀÄ £À£Àß vÀAzÉvÁ¬ÄAiÀÄ §½ AiÀiÁªÀÅzÉà «µÀAiÀĪÀ£ÀÄß F ¥ÀæPÀgÀtzÀ §UÉÎ ºÉýgÀĪÀÅ¢®è JAzÀgÉ ¸Àj.."
If the above said admission is taken into consideration, it is not safe to accept whatever the evidence stated by this witness in his chief examination and whatever he has stated before police and his statement before Magistrate as per Ex.P2. Through this witness also the prosecution fails to prove the alleged offences against accused beyond all reasonable doubt.
26. By going through the evidence of Pw.3-Toefeq, he has deposed that when he was playing along with Faizal, Yasir and Kalu, the accused called and took them near 25 Spl.C.C.No.261/2016 Koramangala NGV Gate Bathroom, at that time it was 08.30 p.m. The accused assaulted them with empty bottle, put his private part on their mouth and put his private to the anus of this witness. He also put his private part to the anus of Yasir, Kalu and Imran. When this witness along with other tried to escape, the accused caught hold them, assaulted with bottle and demanded them to bring money from their house, otherwise he is going to murder them and their family members. He has also identified M01. Thereafter he has stated the alleged incident to his parents and they lodged complaint. He has given statement before police and also before the Magistrate as per Ex.P3 and his signatures are Ex.P3(a) and Ex.P3(b).
27. On perusal of Ex.P3-the victim's statement given before Magistrate, he has stated on Saturday himself and his friends were playing near Double Stores, at that time the accused came there, called him stating that he is going to get Biryani and took them inside NGV Gate, assaulted them with bottle, when this witness along with others tried to escape, the accused again caught hold them, put knife on his neck 26 Spl.C.C.No.261/2016 and questioned about the things with his mother, demanded him to bring money to him, otherwise he is going murder him. The accused also thrown stone towards this witness and he sustained injuries, by that time the uncle of Yasir came there and he brought them to the house.
28. On perusal of statement of Pw.3 before Magistrate and the evidence given by this witness in his chief examination and the statement given before police, they contradict with each other and also there is some discrepancies. If the above said evidence is taken into consideration, it is just and proper to know what this witness stated in his cross-examination is to be considered or what he has stated in the statement before police as per Ex.P3 is to considered to prove the guilt of the accused.
29. The accused cross-examined this witness by eliciting some commission and omission and also elicited that:
"F ¢£À £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ ºÁdjgÀĪÀ DgÉÆæAiÀÄ£ÀÄß £Á£ÀÄ F »AzÉ £ÉÆÃrgÀĪÀÅ¢®è. DgÉÆæAiÀÄÄ £À£ßÀ £ÄÀ ß J£ïf« UÉÃmï£À §½ EgÀĪÀ ¨ÁvïgÀÆA£À §½ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃVgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. DgÉÆæAiÀÄÄ £ÀªÀÄä £Á®ÄÌd£ÀjUÀÄ SÁ° ¨Ál¯ï£À°è 27 Spl.C.C.No.261/2016 ºÉÆqÉ¢gÀĪÀÅ¢®è JAzÀgÉ ¸Àj. D ¢£À D ¸ÀªÀÄAiÀÄ PÀv¯ ÛÀ ¬É ÄAzÀ PÀÆrvÀÄÛ «zÀÄåvï ¨É¼P À ÀÄ EgÀ°®è. DgÀÉÆæAiÀÄÄ vÀ£Àß §Ä¯Á誣 À ÄÀ ß £À£ßÀ ¨Á¬ÄAiÀÄ M¼ÀUÉ ºÁQgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. D ¢£À £À£Àß eÉÆvÉ AiÀiÁ¹Ãgï, ¥sÊÉ d¯ï ªÀÄvÀÄÛ EªÀiÁæ£ï £À£Àß eÉÆvÉ gÀ°®è JAzÀgÉ ¸Àj. PÁ®Ä ªÀÄvÀÄÛ EªÀiÁæ£ï JAzÀgÉ AiÀiÁgÉA§ÄzÀgÀ §UÉÎ ºÉüÀ®Ä £À£ÀUÉ UÉÆwÛ®è JAzÀgÉ ¸Àj. ªÀÄÄ.ªÀiÁ®Ä1 ¨Ál¯ï¤AzÀ DgÉÆæ £À£ÀߣÀÄß CnÖ¹PÉÆAqÀÄ §AzÀÄ £À£ÀUÉ ºÉÆqÉ¢gÀĪÀÅ¢®è JAzÀgÉ ¸Àj. F ¢£À £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ ºÁdgÀÄ ¥Àr¹gÀĪÀ ªÀÄÄ.ªÀiÁ.1 ¨Ál¯ï£ÀÄß £Á£ÀÄ F »AzÉ £ÉÆÃrgÀĪÀÅ¢®è. DgÀÉÆæAiÀÄÄ £À£ÀUÉ ªÀģɬÄAzÀ ºÀt vÉUz É ÀÄPÉÆAqÀÄ ¨Á E®è¢zÀg Ý É PÉÆ¯É ªÀiÁqÀÄvÉBÛ £ÉAzÀÄ ºÉý ¨ÉzjÀ PÉ ºÁQgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. £À£Àß ªÉÄÃ¯É AiÀiÁgÁzÀgÀÄ PÉlÖPÉ®¸À ªÀiÁr ºÉÆqÉzg À ÀÄ JAzÀÄ ºÉý £Á£ÀÄ £À£Àß vÀAzÉvÁ¬Ä §½ ºÉýgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. ¥ÉÇðøÀgÀ ªÀÄÄAzÉ WÀl£É §UÉÎ £Á£ÀÄ AiÀiÁªÀÅzÉà ºÉýPÉ PÉÆnÖgÀĪÀÅ¢®è. £Á£ÀÄ F »AzÉ AiÀiÁªÀÅzÉà £ÁåAiÀiÁ¢üñÀgÀ ªÀÄÄAzÉ ºÉýPÉ PÉÆnÖgÀĪÀÅ¢®è JAzÀgÉ ¸Àj"
Further it is his evidence that on the say of police, he has deposed in his chief examination. He has also deposed that:
"DgÉÆæAiÀÄ£ÀÄß £Á£ÀÄ F ¢£ÀªÃÉ £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ £ÉÆÃqÀÄwÛgÀĪÀÅzÀÄ JAzÀgÉ ¸Àj. £À£Àß ªÉÄʪÉÄÃ¯É AiÀiÁªÀÅzÉà jÃwAiÀÄ UÁAiÀÄUÀ¼ÁVgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. DgÉÆæAiÀÄÄ AiÀiÁ¹gïUÉ, PÁ®ÄUÉ ªÀÄvÀÄÛ EªÀiÁæ£ï£À UÀÄzÀzÁégP À ÉÌ vÀ£Àß §Ä¯Á誣 À ÀÄß EnÖgÀĪÀÅ¢®è JAzÀgÉ ¸Àj."
If the above said admitted evidence taken into consideration, there is a doubt of commission of offence by the accused as stated by this witness before police, before Magistrate and in his chief examination. When there is discrepancy arouse in the evidence of this witness, definitely the benefit of doubt should be given to the accused in respect of the alleged commission of offence. At this stage, this Court feels to observe the evidence of this witness is no where 28 Spl.C.C.No.261/2016 helpful to the prosecution to prove the alleged offences against accused beyond all reasonable doubt.
30. By going through the evidence of Pw.8-Imran Basha @ Kalu, he has deposed that he doesn't know Cw.2 to Cw.4, he has not seen the accused earlier. During holidays, he used to play in the vacant space situated by the side of his house, at no point of time no such incident taken place either on him or on his friends, no such persons called upon him that he is going to get Biriyani to him about a year back. He has not given statement before Magistrate. The police not enquired anything about the alleged incident. The prosecution treated this witness as hostile to the case of prosecution and suggested each and every word of Ex.P7 and Ex.P8, for that he has denied the same and it is his definite answer that he has not given any statement as per Ex.P7 and Ex.P8 before Police and before the Magistrate. Through this witness also the prosecution fails to establish the alleged offences against the accused beyond all reasonable doubt.
31. By going through the evidence of Pw.5-Jabeena, 29 Spl.C.C.No.261/2016 she has deposed that Toefeeq is her son, he was born on 17- 11-2006 and studying at 5th Standard in Urdu School. Cw.2, Cw.3 and Cw.5 are her neighbours, she has not seen the accused, she doesn't know his name, he has not committed any act on her son, even her son also not stated anything about the alleged incident and she has not given statement before police. The prosecution treated this witness as hostile to the case of prosecution and suggested each and every word of Ex.P6, for that she has denied the same. Through this witness also the prosecution fails to establish the alleged offences against the accused beyond all reasonable doubt.
32. By going through the evidence of Pw.6-Nazeem, she has deposed that Faizal is her son, she has given Talak to her husband and she is a divorcee, she got two children, Faizal is her eldest son, having age of 12 years, he is going to Public School, studying in 5th Standard. Cw.2, Cw.3, Cw.5 are her neighbours and they are playing near by her house. At no point of time from nobody no such problem arouse to them. She doesn't know the case of the prosecution, she has not given any statement before police, she has not seen the 30 Spl.C.C.No.261/2016 accused earlier and she doesn't know his name. This witness being mother of Faizal-Cw.3-the victim turned hostile to the case of prosecution. The prosecution suggested each and every word of Ex.P7, for that she has denied the same and her definite answer is that she has not given any statement as per Ex.P7 before the police. Through this witness also the prosecution fails to establish the alleged offences against the accused beyond all reasonable doubt.
33. By going through the evidence of Pw.7-Mohammad Ali, he has deposed that he has studied up to 5th standard, Ex.P5(b) is his signature and he has signed the same on 23- 03-2016 near Koramangala Park, at that place Irfan, Police and mother of victim and also some children were assembled. On enquiry with the police, they told the facts of the case and shown the bottle and also seized the same was seized by the police. He has also identified MO1 before Court. The accused tested the veracity of evidence of this witness by eliciting some commission and omission and also elicited that he has not received any notice from police to become Panch of seizure mahazar, he came in contact with the complainant 31 Spl.C.C.No.261/2016 and victim boy only after conducting of mahazar at the spot. He doesn't know the names of said children, he doesn't know who had written Ex.P5, he has signed Ex.P5 only on the say of police. He doesn't know what was written on MO1. The said bottle was shown by the children and then police taken to their custody and also denied the process of conducting mahazar by the police before this witness and obtaining of his signature on Ex.P5 and MO1, for that he has denied the same. No doubt it is true he has supported the case of prosecution, but the material witnesses turned hostile to the case of prosecution, hence the question of believing the process of conducting mahazar before this witness doesn't arises and this Court opines the evidence of this witness is a formal one.
34. By going through the evidence of Pw.9-Dr.S.R. Jagannath, he has deposed that he has examined the accused on the request of police on 24-03-2016 at about 11.30 a.m., to 12.00 noon with the consent of accused and also issued Ex.P10- the medical report and through this witness the requisition is marked as Ex.P9. Further he has 32 Spl.C.C.No.261/2016 stated that he has given final opinion stating there is nothing to suggest that the accused is incapable of performing sexual intercourse. His evidence remains unassailed. At this stage it is not in dispute about the health of accused and also it is not the case of accused that he is impotent. At this stage the evidence of this witness is a formal one.
35. By going through the evidence of Pw.11- Sirajunnisa, she has deposed that Imran is her 5th son, she got five children, Imran is studying in 4th standard at the relevant point of time of the alleged incident. She knew Cw.2 to Cw.4, they are residing near her house, they are playing in the vacant space near by her house, she doesn't know the alleged incident, no such sexual abuse was taken place against her son, she has not given any statement before police, she has not taken her son to Magistrate to give statement. At no point of time the accused given trouble to her family members, she has not seen the accused even today. The learned Special Public Prosecutor treated this witness as hostile to the prosecution case and suggested each and every word of Ex.P16, for that she has denied the same. 33 Spl.C.C.No.261/2016 At this Stage this Court opines through one of the victim boy's mother-Pw.11, the prosecution fails to establish the alleged offences against accused beyond all reasonable doubt.
36. By going through the evidence of Pw.14-Arun Kumar, he has deposed that his signature is Ex.P35(b). He has signed the same about two years back at Adugodi Police station when he went to said station for his personal work. It is his evidence that he ha snot read out the contents Ex.P35 before signing the same, even the police also not read out the same, only told him to put his signature and he has signed the same, even he has not seen the accused before anywhere, the police have not seized any property before him. The prosecution treated this witness as hostile to prosecution case and suggested each and every word of Ex.P35 that police seized and packed the dress of victims, put seal and conducted seizure mahazar as per Ex.P35 and obtained the signature of this witness, for that he has denied the same. Through the evidence of this witness also the prosecution fails to establish the process of conducting mahazar as per Ex.P35.
34 Spl.C.C.No.261/2016
37. By going the evidence of Pw.10-Dr.Saldanha, she has deposed that on 23-03-2016, Adugodi police brought four victims stating that the accused sexually assaulted them at about 09.00 p.m., on 22-03-2016 and on examining them, she has issued certificates as per Ex.P12 to Ex.P15, by mentioning the injuries found on them. The accused tested the veracity of evidence of this witness by eliciting some commission and omission and also elicited that the victim boys not stated either before the Court or by giving statement under section 164 of Cr.P.C., stating that the accused sexually harassed them, for that she has denied the same. Further she was tested with regard to Ex.P12-statement given by mother of victim-Yasir and she has not stated whether the said boy taken treatment earlier to treatment given by this witness. Here it is relevant to note the victim boys at the cross-examination turned hostile to the case of prosecution, even at the statement recorded by the police and statement recorded by the Magistrate, evidence given by them before the Court are not corroborated and having discrepancies. During cross-examination, they turned hostile to the case of 35 Spl.C.C.No.261/2016 prosecution. When such being the case, the evidence of this witness, though she has issued injury certificate as per Ex.P12 to Ex.P15, it is not safe to accept the alleged offences against accused beyond all reasonable doubt. At this stage, the evidence of this witness is a formal one.
38. By going through the evidence of Pw.13- Hemalatha.R-Police Inspector, she has deposed that on 22- 03-2016, she has received written complaint from Pw.4 as per Ex.P4 and she has registered the case in Crime No.65/2016 for the offences punishable under section 3, 4 of POCSO Act, Section 23 of J.J. Act and Section 506 read with Section 34 of IPC and her signature is Ex.P4(b). On the basis of said complaint she has prepared FIR as per Ex.P33 and her signature is Ex.P33(a). On the next day she went to spot and conducted mahazar as per Ex.P5 and her signature is Ex.P5(c), she has also seized Mo1 shown by the children. Here, the victims have turned hostile to prosecution case stating facts, circumstances and on their cross-examination. 36 Spl.C.C.No.261/2016
39. Pw.13 further deposed that she has also conducted counseling to the victim children through BOSCO- NGO Basavaraj. Thereafter, she has sent the victims for medical check up by giving requisition as per Ex.P11 and her signature is Ex.P11(b). The doctor issued medical certificates as per Ex.P12 to Ex.P15 and her signatures are at Ex.P12(c) to Ex.P15(c). She has recorded the statement of victims and also recorded statement of witnesses. Jabeena given statement as per Ex.P6, Nazeema given statement as per Ex.P7, Imran Basha @ Kalu given statement as per Ex.P7 and Sirajunnissa given statement as per Ex.P16, on the same day he has recorded statement of Cw.11 and Cw.12.
40. Pw.13 further deposed that Cw.17 and Cw.18 traced the accused and produced before her along with their report as per Ex.P34. She has arrested the accused, recorded his voluntary statement. She has seized the clothes of the victims produced by the parents of victim by conducting seizure mahazar as per Ex.p35 and MO2 to MO9 are clothes of victims. Thereafter, she has sent the accused to KIMS Hospital, for medical examination and thereafter produced 37 Spl.C.C.No.261/2016 the accused before Magistrate along with remand application. The further investigation is conducted by Cw.22. The accused tested the veracity of evidence of this witness by eliciting some commission and omission and also denied the process of conduction investigation, for that she has denied the same. She has also denied that she has not sent Mo2 to Mo9 for examination to RFSL. She has admitted that near by the incident spot there are houses and club. At this stage, this Court feels to observe when the victim boys and their parents turned hostile to prosecution case, question of believing the evidence of this witness doesn't arise and her evidence is a formal one. Now left with the available material evidence produced by the prosecution through Pw.12.
41. By going through the evidence of Pw.12- M.S.Boletin, he has deposed that he has received record from Cw.21 on 26-03-2016 and conducted further investigation. He has produced the victims before Magistrate for recording their statement under section 164 of Cr.P.C. He has also received medical certificate of accused as per Ex.P10 from KIMS Hospital and also received articles and subjected the 38 Spl.C.C.No.261/2016 same in P.F. No.27/1926 and obtained permission for the same from the Court and his signature is Ex.P10(c). He has also received report as per Ex.P16 and his signature is Ex.P16(a). He has sent the articles for chemical examination to RFSL and received acknowledgement as per Ex.P17 and his signature is Ex.P17(a). Thereafter, he has filed charge sheet against accused and after that he has received report from RFSL as per Ex.p18 and school documents are marked as per Ex.P19 to Ex.P32. The accused tested the veracity of evidence of this witness by eliciting some commission and omission, except denial suggestion, nothing has been elicited favourable to the defense of the accused. At this stage this Court feels to observe that the evidence of this witness is a formal one.
42. The oral and documentary evidence placed on record by the prosecution, no doubt it is true initially four victim boys and complainant in their chief examination supported to the case of prosecution by giving their evidence and it has to be treated as presumption as per Section 29 of POCSO Act, in respect of offence under section 3(a) read with 39 Spl.C.C.No.261/2016 section 4 of POCSO Act, but at the same time, while cross- examining them by the accused, they turned hostile to the case of prosecution and denied the alleged act done on them by the accused, as such this Court feels to observe that the evidence produced by the prosecution is insufficient to prove the alleged offences against accused beyond all reasonable doubt and the accused rebutted the said presumption through cross-examination of victim boys and this Court feels to observe that it probablizes the defense of the accused rather than the case of the prosecution.
43. In view of aforesaid reasons, I hold that the evidence of Pw.1 to Pw.14 and documentary evidence as per Ex.P1 to Ex.P35 and MO1 to MO9, placed on record in respect of alleged offences, is insufficient to prove that the accused-Appu who is resident of Rajendra Nagar of Koramangala, on 22-03-2016 at about 09.00 p.m., took Cw.2 to Cw.5-the minor boys, who were playing at Rajendra Nagar Circle, by enticing them that he is going to get Biryani, behind National Games Village, Hemavathi Block of Koramangala, near the compound at vacant place by showing 40 Spl.C.C.No.261/2016 blade towards them threatened with dire consequences and sexually abused them by removing their clothes, when they refused for the said act, he assaulted Cw.2 to Cw.5 through his hands and thereafter sexually abused on them by putting his private part into their mouth forcibly, further threatened them if they disclose the said act to anybody he is going to kill them by assaulting with blade and bear bottle and thereby committed offences punishable under Section 323, 377, 506, 201 of IPC, section 3(A), 4 and 6 of POCSO Act and Section 23 of J.J. Act, beyond all reasonable doubt. Consequently, I hold Point No.1 to 4 in the "Negative".
44. Point No.5:- For the above said reasons and discussions on Point No.1 to 4, I hold that the accused is entitled for an order of acquittal. Hence, in the final result, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C., the accused is hereby acquitted for the offences punishable under section 323, 377, 506, 201 of 41 Spl.C.C.No.261/2016 IPC, section 3(A), 4 and 6 of POCSO Act and Section 23 of J.J. Act.
The accused is in J.C. Office is directed to intimate the jail authority to release the accused forthwith if he is not required in any other criminal case.
MO1 to 9 is treated as worthless. Office is directed to destroy the same after appeal period is over and if appeal is preferred, after disposal of the appeal and as per the result of the appeal.
(Dictated to the Judgment Writer, transcribed and typed by her. It is then corrected, signed and pronounced by me in open court on this the 23rd Day of July 2018.) (SUSHEELA) L ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE.
ANNEXURE
LIST OF WITNESSES EXAMINED ON BEHALF OF
PROSECUTION
Pw.1 Syed Yasir Cw.2 09-12-2016
Pw.2 Faizal @ Ali Cw.3 31-10-2017
Pw.3 Toefeeq Cw.4 31-10-2017
Pw.4 Sameena Taj Cw.1 31-10-2017
Pw.5 Jabeena Cw.6 03-03-2018
Pw.6 Nazeema Cw.5 28-07-2016
42 Spl.C.C.No.261/2016
Pw.7 Mohammad Ali Cw.9 16-03-2018
Pw.8 Imran Basha @ Kalu Cw.5 05-04-2018
Pw.9 Dr.S.R.Jagannath Cw.15 05-04-2018
Pw.10 Dr.Saldana Cw.14 20-04-2018
Pw.11 Sirajunnisa Cw.8 20-04-2018
Pw.12 Bolettina Cw.22 14-06-2018
Pw.13 Hemalatha.R. Cw.21 14-06-2018
Pw.14 Arun Kumar Cw.11 06-07-2018
LIST OF DOCUMENTS MARKED ON BEHALF OF
PROSECUTION
Ex.P 1 Statement of Pw.1 Pw.1 09-12-2016
Ex.P 1a Signature of Pw.1 Pw.1 09-12-2016
Ex.P 2 Statement of Pw.2 Pw.2 31-10-2017
Ex.P 2a Signature of Pw.2 Pw.2 31-10-2017
Ex.P 3 Statement of Pw.3 Pw.3 31-10-2017
Ex.P 3a, 3b Signatures of Pw.3 Pw.3 31-10-2017
Ex.P 4 Complaint Pw.4 31-10-2017
Ex.P 4a Signature of Pw.4 Pw.4 31-10-2017
Ex.P 4b Signature of Pw.21 Pw.21 14-06-2018
Ex.P 5 Mahazar Pw.4 31-10-2017
Ex.P 5a Signature of Pw.4 Pw.4 31-10-2017
Ex.P 5b Signature of Pw.7 Pw.7 16-03-2018
Ex.P 5c Signature of Pw.13 Pw.13 14-06-2018
Ex.P 6 Marked portion of Pw.5 03-03-2018
statement of Pw.5
Ex.P 7 Marked portion of Pw.6 03-03-2018
statement of Pw.6
43 Spl.C.C.No.261/2016
Ex.P 7 Marked portion of Pw.8 05-04-2018
statement of Pw.8
Ex.P 8 Statement of Pw.8 Pw.8 05-04-2018
Ex.P 9 Requisition Pw.9 05-04-2018
Ex.P 9a Signature of Pw.9 Pw.9 05-04-2018
Ex.P 10 Medical examination Pw.9 05-04-2018
report of accused
Ex.P 10a, Signatures of Pw.9 Pw.9 05-04-2018
10 b
Ex.P 10c Signature of Pw.12 Pw.12 14-06-2018
Ex.P 11 Requisition Pw.10 20-04-2018
Ex.P 11a Signature of Pw.10 Pw.10 20-04-2018
Ex.P 11b Signature of Pw.13 Pw.13 14-06-2018
Ex.P 12 Medical examination Pw.10 20-04-2018
report of Pw.1
Ex.P 12a Signature of Pw.10 Pw.10 20-04-2018
Ex.P 12b Signature of Pw.4 Pw.10 20-04-2018
Ex.P 12c Signature of Pw.13 Pw.13 14-06-2018
Ex.P 13 Medical examination Pw.10 20-04-2018
report of Pw.3
Ex.P 13a Signature of Pw.10 Pw.10 20-04-2018
Ex.P 13b Signature of Pw.5 Pw.10 20-04-2018
Ex.P 13c Signature of Pw.13 Pw.13 14-06-2018
Ex.P 14 Medical examination Pw.10 20-04-2018
report of Pw.2
Ex.P 14a Signature of Pw.10 Pw.10 20-04-2018
Ex.P 14b Signature of Pw.6 Pw.10 20-04-2018
Ex.P 14c Signature of Pw.13 Pw.13 14-06-2018
Ex.P 15 Medical examination Pw.10 20-04-2018
report of Pw.8
44 Spl.C.C.No.261/2016
Ex.P 15a Signature of Pw.10 Pw.10 20-04-2018
Ex.P 15b Signature of Pw.11 Pw.10 20-04-2018
Ex.P 15c Signature of Pw.13 Pw.13 14-06-2018
Ex.P 16 Statement of Pw.11 Pw.11 20-04-2018
Ex.P 16 Requisition Pw.12 14-06-2018
Ex.P 16a Signature of Pw.12 Pw.12 14-06-2018
Ex.P 16b Signature of Cw.19 Pw.12 14-06-2018
Ex.P 17 Acknowledgement of Pw.12 14-06-2018
RFSL-Mysore
Ex.P 17a Signature of Pw.12 Pw.12 14-06-2018
Ex.P 18 Report of RFSL-Mysore Pw.12 14-06-2018
Ex.P 18a Signature of Pw.12 Pw.12 14-06-2018
Ex.P 19 Requisition Pw.12 14-06-2018
Ex.P 20 Certificate of age of Pw.12 14-06-2018
Pw.2
Ex.P 20a Signature of Pw.12 Pw.12 14-06-2018
Ex.P 21 Copy Admission Pw.12 14-06-2018
Register Extract of
Pw.2
Ex.P 22 Requisition Pw.12 14-06-2018
Ex.P 23 Certificate of age of Pw.12 14-06-2018
Pw.8
Ex.P 24 Copy Admission Pw.12 14-06-2018
Register Extract of
Pw.8
Ex.P 25 Copy dropout extract of Pw.12 14-06-2018
Pw.8
Ex.P 26 Requisition Pw.12 14-06-2018
Ex.P 27 Certificate of age of Pw.12 14-06-2018
Pw.1
45 Spl.C.C.No.261/2016
Ex.P 28, 29 Copy Admission Pw.12 14-06-2018
Register Extracts of
Pw.1
Ex.P 30 Requisition Pw.12 14-06-2018
Ex.P 31 Certificate of age of Pw.12 14-06-2018
Pw.2
Ex.P 32 Copy T.C. of Pw.2 Pw.12 14-06-2018
Ex.P 33 FIR Pw.13 14-06-2018
Ex.P 33a Signature of Pw.13 Pw.13 14-06-2018
Ex.P 34 Requisition Pw.13 14-06-2018
Ex.P 34a Signature of Pw.13 Pw.13 14-06-2018
Ex.P 34b Signature of Cw.17 Pw.13 14-06-2018
Ex.P 35 Seizure mahazar Pw.13 14-06-2018
Ex.P 35a Signature of Pw.13 Pw.13 14-06-2018
Ex.P 35b Signature of Pw.14 Pw.14 06-07-2018
LIST OF MATERIAL OBJECTS MARKED ON
BEHALF OF PROSECUTION
MO1 Bottle Pw.7 16-03-2018
MO2 Shirt Pw.13 14-06-2018
MO3 Pant Pw.13 14-06-2018
MO4 Shirt Pw.13 14-06-2018
MO5 Pant Pw.13 14-06-2018
MO6 Shirt Pw.13 14-06-2018
MO7 Pant Pw.13 14-06-2018
MO8 Shirt Pw.13 14-06-2018
MO9 Knicker Pw.13 14-06-2018
46 Spl.C.C.No.261/2016
LIST OF DOCUMENTS MARKED, WITNESSES
EXAMINED & MO.S MARKED ON BEHALF OF
DEFENCE
-NIL-
L ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE