Bangalore District Court
Unknown vs G.A.Dwarakanath on 6 December, 2019
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS SPECIAL JUDGE,
BENGALURU
DATED THIS THE 3rd DAY OF DECEMBER, 2019
-: PRESENT :-
S.H.PUSHPANJALI DEVI, B.A. LL.B.,
LIII Addl. City Civil & Sessions Special Judge,
Bengaluru.
SPECIAL C.C.No. 480/2017
COMPLAINANT :
The State of Karnataka
By Konanakunte Police Station,
Bengaluru.
[Rep. by Public Prosecutor]
/ VERSUS /
ACCUSED:
G.A.Dwarakanath,
S/o. L.S. Ramachandrarao,
Aged about 68 years,
R/at. No.204, 2ne Floor,
Amma Nana Apartment,
Soudhamini Layout,
Konanakunte,
Bengaluru.62.
[Rep. by Mr. M.E.M. -
Advocate]
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Spl.C C.480/2017
TABULATION OF EVENTS
1. Date of Commission : From 21/01/2017 to
Of Offence 13/02/2017
2. Date of Report :
Of Offence 13/02/2017
3. Date of arrest of :
Accused 14/02/2017
4. Date of release on Bail
Accused : 25/2/2017
5 Period undergone in
Judicial Custody by :
Accused
6 Name of the complainant : Mir Faizan Ahmed Khuraishi
7. Date of Commencement :
of recording evidence 03/11/2018
8. Date of Closing of :
26/09/2019
Evidence
9. Charges framed : Section 354-A IPC and
Sections 8 and 11(i)(iv)(vi) of
POCSO Act, 2012.
10. Opinion of the Judge : As per final Order
(S.H.PUSHPANJALI DEVI)
LIII Addl.City Civil & Sessions Special Judge,
Bangalore.
3
Spl.C C.480/2017
JUDGMENT
This Charge Sheet is filed by the Police Sub- Inspector of Konanakunte Police Station, Bengaluru City against the Accused for the offences punishable under Section 354-A (i) (ii) of IPC and Sections 8, 11(i) (iv)
(vi) of POCSO Act, 2012.
2. The brief facts of the case of the Prosecution are that the minor Victim is the sister of CW-1 Mir Faizan Ahamed Khuraishi. She was taking Tuition under the Accused, who was giving Tuition in his house No. 19-A in the ground floor, situated at Soudhamini Layout Main Road. During that period, during night hours at about 9 PM to 10 PM, the Accused from 25/1/2017 to 13/2/2017, called the Victim from his mobile No. 9980516647 to her mobile No. 9844803443 and used abusive language and caused Sexual Harassment, explicited Sexual Overtures and demanded Sexual 4 Spl.C C.480/2017 favours. Afterwards, on 1/2/2017 when she came to the Tuition, the Accused had shown the Wall paper of naked pictures, with an intention to have sex with her expressed to have Sexual intercourse and also touched her private parts.
3. Afterwards, the brother of the Victim, the Complainant gave Complaint to Konanakunte Police Station on 13/2/2017 and case registered in Crime No. 64/2017 for the offenes punishable under Section 354(A)(i)(ii) of IPC and Sections 8,11(i)(iv)(vi) of POCSO Act, 2012. The Accused was arrested on 14/2/2017 and remanded to Judicial Custody. He was represented through the Counsel and released on bail on 25/2/2017.
4. The Investigating Officer has collected materials and recorded the Statements of many witnesses and filed the Chargesheet against the Accused for the offences punishable under Section 354(A)(i)(ii) and 5 Spl.C C.480/2017 Sections 8,11(i)(iv)(vi) of POCSO Act, 2012. This Court has taken Cognizance of the said offences and heard, arguments of both learned Public prosecutor and the learned Counsel for the Accused before framing Charge. This Court has found prima-facie materials against the Accused and proceeded to frame the charges under Section 354(A)(i)(ii) of IPC and Sections 8,11,(i)(iv)(vi) of POCSO Act, 2012. The same read over and explained to the Accused, he has denied the Charges and claims to be tried.
5. The Prosecution has examined 7 witnesses out of 11 witnesses as PWs 1 to 7. The documents are marked as Ex. P-1 to 8, P-1(a)(b), 2(a)(b), 3(a), 4(a), 5(a) to
(i), 6(a),8(a). The CW's 6 and 7 remained absent, even after issuance of Proclamation. Hence, prayer of learned Public Prosecutor for reissue the same is rejected and the evidence of Prosecution taken as closed. The incriminating circumstances in the evidence 6 Spl.C C.480/2017 of Prosecution witnesses is read over under Section 313 Cr.P.C. He has denied the same and not chosen to lead any defence evidence on his behalf.
6. Heard, the arguments of learned Public Prosecutor for the State and the learned Counsel for the Accused on merits.
7 . The points for my consideration are :
1. Whether the Prosecution proves that the Accused from 25/1/2017 to 13/2/2017 at about 9 to 10 P.M. called the minor Victim from his mobile to her mobile repeatedly and expressed his intention to have Sexual Intercourse with her and caused Sexual harassment and committed the offences punishable under Sections 354(A) of IPC and Sections 8 and 11 (i) (iv)( vi) of POCSO Act, 2012.?
2. What Order?7
Spl.C C.480/2017
8. My findings on the above points are as under:-
Point No.1 : In the Affirmative
Point No.2 As per final order
for the following
REASONS
9. Point No. 1 : The prosecution has alleged the
Sexual Harassment, which was caused on the minor Victim when she was going to the Tuition under him while studying in 10th Standard and II PUC. In proof of the same relied on the evidence of the Complainant and others. The Complainant Mir Faizan Ahemd Khuraishi is examined as PW.1 He has deposed that the minor Victim is his sister, she was studying in II PUC in the year 2017, she was taking tuition under the Accused for subject of Mathematics. The Accused was giving Tuition to the students in one of the rooms of the building opposite to his house. Afterwards, in the same year his sister stopped going for Tuition, thereafter, he 8 Spl.C C.480/2017 questioned why she is not going, she told that she will not feeling comfortable with the Accused to take Tuition, if she gets any doubts will be clarifying the same with him.
10. He has further deposed that the Victim informed that when she went to Tuition, the Accused had expressed his intention to have Sexual intercourse with her, since his wife was not allowed him to touch her. He was further made known that the Accused called to her mobile phone, asked to come to his house as he was alone, he wants her, also ready to pick up from the house, for that she had refused to go to his house.
11. Therefore, after coming to know the Sexual Harassment by the Accused, he along with his wife and Victim, went to the house of the Accused to ask him, but he did not come out of the house. Therefore, he 9 Spl.C C.480/2017 gave Complaint to the Police as per Ex.P-1 and his signature is marked as Ex.P-1(a).
12. In the Cross-examination, he has stated that when his sister was studying in Xth Standard going for Tuition under the Accused, again while studying in II PUC joined for Tuition. The timings of the Tuition when she was studying in 10 th Standard was from 5 PM to 6 PM or 6 PM to 7 PM and he was leaving her for Tuition had noticed some other 4-5 Students were coming to the Tuition. However, when she joined Ist PUC, the Victim herself wanted to take Tuition from the Accused, thereafter in the II PUC, she has stayed at home. He was not aware of the Tuition fee paid to the Accused as it was paid by his mother.
13. However he came to know about the Sexual Harassment caused by the Accused on the date of giving Complaint, prior to that the Victim has disclosed the same with her friend. He has specifically stated that 10 Spl.C C.480/2017 the Accused on 12/2/2017, the Accused called Victim and asked her to come to his home as no body there in the home. Therefore on the next day he gave Complaint to the police.
14. The suggestion put to him that since his sister, the Victim was not going to the Tuition properly, the Accused was complaining about the same and also the Tuition fee was not paying properly demanded by him.
15. The Victim is examined as PW.2. She has clearly stated how the Accused caused Sexual Harassment when she was taking Maths Tuition, while studying in II PUC in the year 2017. She has clearly stated that the Accused used to call to her mobile phone during night hours, but after 9 pm., she did not pick up his call. Further the Accused used to talk over the phone initially about the Tuition, later, he was telling that he wants and needs her, therefore at that time, she used to dis-connect the call and never picked up his call after 11 Spl.C C.480/2017 9 PM. However, one day at about 8 P.M. when she received call from the Accused, he talked about Tuition, afterwards again repeated the same as he wants and needs her. When she asked what it means, he told that he needs her nipple. On the next day, when she went to the Tuition asked about the said incident, for which, Accused expressed that he did not remember as he was drunk.
16. She has further stated that on 1/2/2017 when she went to Tuition, the Accused shown a Wall paper of naked woman from English Movie, told his personal life and also expressed everything saying that he has addicted to drinks as he did not get anything from his wife after 1983, therefore he needs her. He has also told about the intention to rub her privater parts and expressed to have Sexual Intercourse with her. The Accused was repeatedly calling her and saying that he wants her and asked her to come to home as no one is there. Therefore, she called her friend CW-5 and told 12 Spl.C C.480/2017 the intention of the Accused, however, the Accused asked both of them to come to his house. The Accused used to talk vulgarly over phone and whenever the Victim used to ask him on the next day, he was telling not remembered. Therefore, she told with her brother that did not like the Accused as he is speaking vulgarly. She has identified her signature with Mahazar Ex.P-2 is marked as Ex.P-2(a). She also identified her signature in the Statement recorded under Section 164 Cr.P.C. marked as Ex.P-3 and her signature as Ex.P-3(a).
17. In the Cross-examination, she has admitted that when she was going to the Tuition under the Accused, there were 3 students , afterwards another student was joined, all of hem were girls. Her friend CW-5 was also studying in 10 th standard, when she was taking Tuition from the Accused. Though she is not able to say the exact month of joining the Tuition, during X standard she was going to the Tuition regularly and after X standard she dis-continued the Tuition. The 13 Spl.C C.480/2017 Tuition fee was about Rs. 5-6,000/-, used to be paid by her mother. She has denied due to the non-payment of Tuition fee, she has dis-continued the Tuition. Further, she has voluntarily stated the Tuition was dis-continued due to health problem. She has admitted that again joined for tuition in the II PUC and from the month of December not going regularly to the Tuition and also to the college regularly due to her health problem.
18. She has not informed about the calls made by the Accused during night hours with any body, except her friend CW-5, who was not studying in her college. However, even though after the said incident, she continued the Tuition subsequently. She do not know the exact date of stopped going to Tuition , but before 12/2/2017, she visited the Accused for Tuition only for 5-6 days. She has denied that the Accused never called to her mobile and talked to her and Sexually abused either through phone or personally. Though She did not inform the Sexual Harassment by Accused from 14 Spl.C C.480/2017 25/1/2017 till 13/2/2017, but told in detail to her friend. She has also denied false things deposed by her against the Accused to degrade his reputation in the Society.
19. The mother of the Victim Smt. Shahida Banu is examined as PW-3. She has deposed that when the Victim was studying SSLC, she was taking Tuition from the Accused, afterwards again she went to Tuition of the Accused in the month of January 2017. However, during the second week of February 2017 she has stated the Sexual Harassment caused by the Accused, therefore, stopped from going to Tuition. She has clearly stated that the Victim was crying when she asked for reason why she did not want to take Tuition from the Accused. After forcing her, she had disclosed about the Accused used to call her during night hours and whenever she went to the Tuition, he was touching her private parts, showing naked pictures and describing about the physical appearance of his wife, complained against her and also expressing his intention that he 15 Spl.C C.480/2017 needs her. Thereafter, a call from the Accused, as her daughter did not pick up the phone, she received it and she asked why he called her during night hours, he asked her to come to the Tuition. Therefore she gave Complaint to the police after taking the Victim along with her son.
20. In the Cross-examination, suggestion put to her that they were not paying Tuition fee properly and also the Victim was not attending the Tuition regularly, therefore as the Accused demanded Tuition fee and asked her to attend regularly, a false Complaint has been filed against him. However, she has denied the said suggestion and affirmed about the Sexual Harassment caused by the Accused when her daughter was going to Tuition in the year 2017, while studying in II PUC.
21. The friend of Victim Twinkle Chitaria is examined as PW-5. She has also stated that she was 16 Spl.C C.480/2017 going for Tuition along with Victim while she was studying in X standard. Thereafter while studying in I PUC, due to clarify some doubt, she went to clarify the same after giving information to the Accused in the month of January and February 2017. The Victim was residing with her mother in her house, at that time Accused called her during night hours and asked to come to his house. He had also spoken vulgarly as he needs her and he wanted to touch her. After that time as she was also with the Victim, the Accused asked both of them to come to his house. Afterwards one day when she was sitting outside the Tuition hall, the Victim came out by running told that Accused was showing obscene pictures from his phone. Afterwards the brother of the Victim gave the Complaint to the Police.
22. In the cross-examination, she has stated that the distance of the house of Victim from her house was about 200-300 feet and the house of Accused was 500 meters away from her house. She was also taking 17 Spl.C C.480/2017 Tuition from the Accused for the subjects of Science and Maths. But she do not know how many Batches were taking Tuition under him. She has also deposed that on the basis of the number of Batches, he was fixing the timings in the morning hours and during evening. She has affirmed that, on the date of alleged incident, Accused mis-behaved with Victim by speaking vulgarly and no body were at that time, except herself and Victim. She has also denied the suggestion that the Accused never misbehaved with the Victim and not called her during night hours. She affirmed that she heard the voice of Accused causing Sexual Harassment over the phone to the Victim through the speaker.
23. The Head Constable C.S. Chikka Kempaiah is examined as PW-4. On 13/2/2017 he was deputed in search of Accused along with CW-9. Afterwards at about 10.30 am. near Soudhamini Marriage Choulty, in front of Amma Nana Apartment, the Accused was traced out and after enquiry he was caught hold and 18 Spl.C C.480/2017 produced before the SHO with a Report, marked as Ex.P-4 and his signature as Ex.P-4(a). In the cross- examination he has denied the Accused was not caught hold from that place and no Report given by him.
24. The Police Sub-Inspector Smt. Kavitha is examined as PW-6. She has taken the case file from CW-10 the A.S.I. and continued further investigation. The Accused was produced under Report and she has recorded the Voluntary Statement after his arrest. She has also conducted the Mahazar as per Ex.P-2 and her signature is marked as Ex.P-2(b). The details of copies of the CDR in respect of the call details of the mobiles of the Accused and Victim are marked as Ex.P-5 and her signatures are marked as Ex.P-5(a) to (I). The letter and Admission Register Extract of the Date of Birth of the Victim are marked as Ex.P-6 and 7 and her signature is marked as Ex.P-6(a). Afterwards, she has filed the Charge Sheet against the Accused. She has denied as no Spot Mahazar conducted at the Spot and Accused 19 Spl.C C.480/2017 never given Voluntary Statement as well as Statements of other witnesses not recorded by her.
25. The A.S.I. Jayaramiah is examined as PW-7. He has deposed about Complaint received from the Complainant on 13/2/2017 and case registered for the offence under Section 354-A and Section 8 and 11 of POCSO Act. He has identified his signature in the Complaint Ex.P-1 is marked as Ex.P-1(b). The FIR is marked as Ex.P-8 and his signature as Ex.P-8(a). In the cross-examination, he has stated that the brother of the Victim was accompanied the Complainant while giving the Complaint in the Police Station. She has denied a false case registered against the Accused.
26. This Court has perused the evidence of all the witnesses and gone through the Call details of the Mobiles of Accused and Victim. Those call details are produced to prove the calls made by the Accused to the mobile of Victim during night hours, which are marked 20 Spl.C C.480/2017 under Ex.P-5. At this stage it is important to point out the duration of conversation of calls between them. The learned Counsel for Accused also pointed out the relevant entries and duration of Calls from which it is not possible to believe the Sexual Harassment committed by Accused as deposed by the Victim.
27. However, the evidence of Victim, her mother as Complainant and her friend Corroborates each other, in proof of the Sexual Harassment caused by the Accused with an intention to have Sexual intercourse with the Victim. It is true, the suggestion put to them with regard to non-payment of Tuition fee and also not attending the Tuition regularly by the Victim are denied by them. However, those reasons cannot be believable and also acceptable. Because no other strong reason made out by Accused for giving such type of evidence by the Victim, which was only disclosed with her friend, particularly stated how the Accused causing Sexual Harassment by calling her during night hours and also 21 Spl.C C.480/2017 expressing his intention to have Sexual Intercourse with her.
28. Another important Point is to be taken is, only for the alleged reasons that the Accused was demanded Tuition fee and also asking her to attend Tuition properly, no mother will make false allegations of Sexual Harassment in the manner described by the Victim and also her friend, by degrading her teacher. The mother of the Victim has expressed the same, when the similar suggestions put to her and she was almost cried in the witness box as noted in the deposition. Therefore, the Accused has failed to prove the alleged false allegation of Sexual Harassment made against him with any supporting strong and reliable reasons.
29. The most important point is the Statement of the Victim given before the concerned Magistrate under Section 164 of Cr.P.C. on 4/3/2017 clearly 22 Spl.C C.480/2017 discloses about when she was studying in Xth Standard has explained the types of Sexual Harassment by the Accused. Therefore, it can be fairly said that no student of X standard will say the illegal acts of the Accused being an aged person and also her Tuition Teacher, who behaved in such a manner of saying vulgar things, which ought not to do with any students, when the Teacher are treated as "Gurus". Therefore, even in the present Society, Teachers are having more respect, for the reason, that they will make the students to reach different fields at Peak level and bring good name to both their Parents and Teachers, who taught them to reach such a peak position.
30. Therefore, considering all these aspects, as no materials produced in proof of defence of Accused to disprove the act of Sexual Harassment on the Victim, I am of the opinion that the Prosecution has proved the offence of Sexual Harassment caused by the Accused 23 Spl.C C.480/2017 punishable under Section 354-A IPC and Sections 8 and 11(i)(iv)(vi) of POCSO Act, 2012. Hence, I answer Point No.1 in the Affirmative .
31. Point No.2: In the result, I proceed to pass the following:
ORDER Acting under Section 235(2) of Cr.P.C. Accused namely, G. A. Dwarakanath S/o L.S. Ramachandra Rao is hereby convicted for offences punishable under Section 354-A IPC and Sections 8 and 11(i)(iv)(vi) of POCSO Act, 2012.
To hear regarding sentence. (Dictated to the Judgement writer, transcript and computerized by her, corrected, signed and then pronounced by me in the open Court today on 3rd day of December, 2019.) (S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.24
Spl.C C.480/2017 6/12/2019 ORDER ON SENTENCE Heard, the arguments of the learned Public Prosecutor, the learned Counsel appeared for the Accused and Accused in person on Sentence.
2. The learned Public Prosecutor has submitted to pass Maximum Sentence against the Accused.
3. The Accused in person has submitted that he has not committed any offence.
4. The learned counsel for the Accused has submitted that the Accused is aged about 78 years and suffering from Diabetes, B.P. and Lever problem and he has no Criminal antecedents. Therefore leniency should be shown. while passing Sentence for the offences under Sections 354-A IPC, 8 and 11 of POCSO Act, 2012, which are punishable with imprisonment of 3 years. For the 25 Spl.C C.480/2017 said reasons, prayed to award minimum Sentence against the Accused in the interest of justice.
5. The learned counsel has further produced the copies of Medical prescriptions and treatment taken by the Accused in the different hospitals for different diseases, including the high Blood Pressure.
6. I have perused the offences proved against the Accused are punishable under Sections 354-A IPC, 8 and 11 (i)(iv)(vi) of POCSO Act, 2012 .
7. The punishment of imprisonment prescribed for offence under Section 354-A IPC, shall be punishable for a term which may extend to 3 years or with fine or with both. However, the offences specified in Clause (i) or Clause (ii) of sub section (1) shall be punishable with Rigorous imprisonment for a term which may extent to 3 years or with fine or with both. 26
Spl.C C.480/2017
8. The punishment imprisonment prescribed for offence under Section 8 of POCSO Act, 2012, shall be for a term not less than three years, but may extend to five years and shall also liable to fine.
9. The punishment of imprisonment prescribed for offence under Section 11(i)(iv)(vi) of POCSO Act, 2012, shall be a term may extend to three years and shall also be liable to fine.
10. After going through the punishment prescribed for the offences proved against the Accused along with the documents of his illness, who is aged about 78 years as well as the gravity of the offences, if the maximum Sentence imposed, it will definitely meets the ends of justice. Hence, I proceed to pass the following:
ORDER 27 Spl.C C.480/2017 The Accused - G. A. Dwarakanath is sentenced to undergo Simple Imprisonment of Three years and shall pay fine of Rs. 10,000/- for the offence under Section 354-A of IPC. In default to pay fine, he shall further undergo Simple Imprisonment for one year.
The Accused shall undergo Simple Imprisonment of Three years and pay fine of Rs.10,000/- for the offence under Section 8 of POCSO Act, 2012, In default, to pay fine, he shall further undergo Simple Imprisonment for one year.
The Accused shall undergo Imprisonment for three years and pay fine of Rs.10,000/- for the offence under Section 11(i)(iv)(vi) of POCSO Act, 2012. In default to pay fine, he shall further undergo, imprisonment of one year.
All the Sentences shall run concurrently. 28
Spl.C C.480/2017 The Bail bonds executed earlier by the Accused and surety under Section 437-A Cr.P.C. in force till the Appeal period is over.
The total fine amount shall be paid to the Victim, after due identification.
Supply free copy of this Judgment to the Accused immediately.
(Dictated to the Judgement writer, transcript and computerized by her, corrected, signed and then pronounced by me in the open Court today on 6th day of December, 2019.) (S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.
ANNEXURE
1) List of witnesses examined for the Prosecution PW.1 Meer Faizan PW.2 Victim PW.3 Shahida Banu 29 Spl.C C.480/2017 PW.4 Chikka Kempaiah C.S. PW.5 Twinkle Chitaria PW.6 Kavitha G.M. PW.7 Jayaramiah
2) List of documents marked for the Prosecution Ex.P1 Complaint Ex.P1(a) Signature of PW-1 Ex.P1(b) Signature of PW-7 Ex.P2 Spot Mahazar Ex.P2(a) Signature of Pw-1 Ex.P2(b) Signature of PW-6 Ex.P3 164 Cr.P.C. Statement of PW-2 Ex.P3(a) Signature of PW-1 Ex.P4 Report Ex.P4(a) Signature of PW-4 Ex.P5 Mobile Calls CDR Ex.P5(a) Signature of PW-7 Ex.P5(b) Signature of PW-7 Ex.P6 Date of Birth Certificate Ex.P6(a) Signature of PW-6 Ex.P7 Admission Register Extract Ex.P8 FIR Ex.P8(a) Signature of PW-7 30 Spl.C C.480/2017
3) List of Material Objects marked for the Prosecution Nil
4) List of witnesses examined for the Accused Nil
5) List of documents marked for the Accused Nil
6) List of Material Objects marked for the Accused Nil (S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.
*** 31 Spl.C C.480/2017 Judgment pronounced in the open court, (vide separate Judgment ) ORDER The Accused - G. A. Dwarakanath is sentenced to undergo Simple Imprisonment of Three years and shall pay fine of Rs. 10,000/- for the offence under Section 354-A of IPC. In default to pay fine, he shall further undergo Simple Imprisonment for one year. 32
Spl.C C.480/2017 The Accused shall undergo Simple Imprisonment of Three years and pay fine of Rs.10,000/- for the offence under Section 8 of POCSO Act, 2012, In default, to pay fine, he shall further undergo Simple Imprisonment for one year.
The Accused shall undergo Imprisonment for three years and pay fine of Rs.10,000/- for the offence under Section 11(i)(iv)(vi) of POCSO Act, 2012. In default to pay fine, he shall further undergo, imprisonment of one year.
All the Sentences shall run concurrently. The Bail bonds executed earlier by the Accused and surety under Section 437-A Cr.P.C. in force till the Appeal period is over.
The total fine amount shall be paid to the Victim, after due identification.
Supply free copy of this Judgment to the Accused immediately.
33
Spl.C C.480/2017 (S.H.PUSHPANJALI DEVI) LIII Addl.City Civil & Sessions Special Judge, Bangalore.