Bangalore District Court
State By Madiwala Police vs Israel on 17 January, 2017
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS JUDGE AT
BANGALORE CITY (CCH-55)
Dated this the 17th day of January 2017
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY.
SPL.C.C.NO.319/2015
COMPLAINANT State by Madiwala Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Israel,
Son of Samuel,
Aged 41 years,
Residing at 5th Cross,
Near Venkateshwara Temple, Balaji Layout,
Hongasandra,
Bangalore.
(By Sri.M.R.Harish Kumar-Advocate)
1. Date of commission of offence 11.04.2015
2. Date of report of occurrence of 12.04.2015
the offence
3. Date of arrest of accused 13.04.2015
Date of release of accused 15.05.2015
[bail]
4. Period undergone in custody 1 Month and 2 Days
by the accused
2 Spl CC No.319/2015
7. Date of commencement of 23.12.2015
evidence
7. Date of closing of evidence 5.1.2017
8. Name of the complainant Smt.Lyla
9. Offences complained of Secs. 354(A), 376 of IPC and under
Secs. 5(m), 6, 9(m) and 10 of
POCSO Act, 2012
10. Opinion of the Judge In exercise with the
powers conferred upon me
under Criminal Procedure Code,
the accused is acquitted of the
offences punishable under
Secs. 354(A), 376 of IPC and
under Secs. 5(m) r/w Sec.6 of
POCSO Act, 2012 and under
Sec.9(m) r/w Sec. 10 of POCSO
Act, 2012.
JUDGMENT
Police Inspector, Madiwala Police Station Bangalore, has submitted charge sheet in Crime No.673/2015 for the offences punishable Under Secs. 354(A), 376 of IPC and under Secs. 5(m), 6, 9(m) and 10 of POCSO Act, 2012.
2. The prosecution case, briefly stated:
That the grand-mother of one of the Victim girl [CW2] lodged a Complaint as per Ex.P10 alleging that, on 11.4.2015 at about 10.30 A.M., when CWs-2 to 4 minor girls were playing in front of 3 Spl CC No.319/2015 her [complainant] house, the accused by giving chocolates to them and took CWs-2 and 3 inside his house bearing No.27/1, situated at 5th Cross, 6th Main, Balaji Layout, Bengaluru and showed them obscene videos in his mobile, removed the clothes of CW2 pressed her breasts, put his finger into the vagina of CW2, thereafter pressed the waist and breasts of CW3 and shown his penis to the girls, knowing that CWs-2 and 3 are minor girls and committed sexual assault on them. Hence, the complaint
3. On the basis of the said complaint, case was registered by the complainant police in Cr.No.673/2015 for the offence punishable under Secs, 354 and 376 of IPC and under Secs. 4, 6, 8 and 12 of POCSO Act, 2012. Thereafter, criminal law was set in motion. The Investigating Agency commenced the investigation. On 13.4.2015 the accused was arrested. The victim girls CW2 and CW3 were sent for medical examination, spot mahazar conducted, the accused was also sent for medical examination and the articles seized were sent for FSL and after completion of the investigation formalities, charge-sheet has been filed against the accused for the offences punishable under Secs. 354(A), 376 of IPC and under Secs. 5(m), 6, 9(m) and 10 of POCSO Act, 2012.
4. The accused is on bail He is represented by the counsel of his choice. After appearance of the accused, the copies of the prosecution papers [charge-sheet] was given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
4 Spl CC No.319/20155. After hearing the learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in- office has framed the Charge on 30.10.2015 for the offences punishable under Secs. 354(A), 376 of IPC and under Secs. 5(m) r/w Sec.6 of POCSO Act, 2012 and under Sec. 9(m) r/w Sec.10 of POCSO Act, 2012 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed trial.
6. The prosecution in order to bring home the guilt of the accused has examined in all 10 witnesses as PWs-1 to 10, out of the total 22 witnesses as shown in charge-sheet and got marked 12 documents at Exs.P1 to P12 and Material Objects at MOs-1 to 22.
7. At this stage it is necessary to mention that, though in the charge-sheet, there are 22 witnesses cited, the prosecution examined only 10 witnesses. CW4, CW5, CW7, CWs-11 to 15 and CWs-19 to 22 are not examined by the prosecution. CW4-eye witness to the alleged incident, CW5-mother of the victim girl-Bindu, CW7-mother of CW4 [who was present along with CWs-2 and 3 while playing], CW-11 to CW14- Mahazar witnesses, CW15- Head Master of the school who attested the date of birth of CW2 and CW3, CW19 and CW20-Police officials who took the accused before the Police Inspector, CW21-Head constable who obtained the medical reports of the victim girls and taking of the seized articles to the FSL and CW22-Police Inspector who is the Investigating Officer of this case, were not examined by the prosecution. On perusal of the order sheet it discloses that, CW19 5 Spl CC No.319/2015 and CW20 were given up as repetition. On several times, summons and warrants were issued to CW4, CW5, CW7, CWs-11 to 15 and CWs-21 and 22, inspite of issuance of repeated summons and warrants to them, they were not secured and the victim girls turned hostile, therefore the said witnesses [CW4, CW5, CW7, CWs-11 to 15 and CWs-21 and 22 ] were dropped by this court vide order dated: 5.1.2017 and 11.1.2017 by rejecting the prayer made by learned Public Prosecutor.
8. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C was recorded. The accused has denied the incriminating evidence found in the evidence of prosecution witnesses. His defence is that of total denial of his involvement in the alleged incident and that he is totally innocent. Further he has stated that, when he was having his meals in Andhra Hotel, run by the complainant, he told that the meals was not good and so the complainant picked up a quarrel with him and falsely implicated him in this case. However, the accused did not choose to lead any evidence in support of his defense.
9. Heard the learned Public Prosecutor and the learned counsel for the accused. Perused the records
10. After hearing the arguments of learned Public Prosecutor and the learned defence counsel and as per the Charge leveled 6 Spl CC No.319/2015 against this accused, the following Points do arise for consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 11.4.2015 at about 10.30 A.M., when the victim girls-CW2 and CW3 were playing near their house, the accused took CW2 and CW3 to his house and shown obscene videos and removed the clothes of CW2 and pressed her breasts and also pressed the waist and breasts of CW3 and shown his penis to the victim girls and thereby committed an offence punishable under Sec.345(A) of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that the accused knowing that the victim girl-CW2 is a minor inserted his finger into her vagina and hence raped her, thereby committed an offence punishable under Sec.376 of IPC?
3. Whether the prosecution further proves beyond reasonable doubt that the accused by inserting his finger into the vagina of Victim girl-CW2 who is aged below 12 years has committed aggravated penetrative sexual assault on CW2 thereby committed the offence punishable under Sec.5(m) r/w Sec.6 of POCSO Act, 2012?
4. Whether the prosecution further proves beyond reasonable doubt that, the accused with sexual intent pressed the waist and breasts of the Victim girl-CW3 who is aged below 12 years and committed aggravated sexual assault thereby committed the offence punishable under Sec.9(m) r/w Sec.10 of POCSO Act, 2012?
5. What Order?7 Spl CC No.319/2015
11. My findings on the above points are as under:
Point Nos.1 to 4 : In the NEGATIVE Point No.5: As per the final order, for the following:
REASONS
12. POINT NOS.1 TO 4: Consideration of these Four Points are based on the same facts and evidence and therefore, to avoid repetition, these Four points are taken together for discussion.
13. According to the prosecution, that on 11.4.2015 at about 10.30 A.M., when CWs-2 to 4 minor girls were playing in front of complainant's house, the accused by giving chocolates to them and took CWs-2 and 3 inside his house bearing No.27/1, situated at 5th Cross, 6th Main, Balaji Layout, Bengaluru and showed them obscene videos in his mobile, removed the clothes of CW2 pressed her breasts, put his finger into the vagina of CW2, thereafter pressed the waist and breasts of CW2 and shown his penis to the girls, knowing that CWs-2 and 3 are minor girls and committed sexual assault on them. Hence, the accused has committed the offences as per the charge leveled against him.
14. The initial burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution has relied upon the evidence of PWs-1 to 10. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Dr.Mohana deposes about the medical examination conducted on the victim girls-CW2 and CW3 8 Spl CC No.319/2015 Pw.2 Dr.G.Babu Rao deposes about the medical examination conducted on the accused Pw.3 Victim girl Pw.4 Jyotsna-mother of the victim girl-PW3 Pw.5 Victim girl Pw.6 Kusuma-mother of the victim girl-PW5 Pw.7 Raju-father of the victim girl-PW5 Pw.8 Lyla Srinivas-Grand mother of victim girl-PW3 PW.9 Kishore-Father of the victim girl-PW3 Pw10 Jameer Hussain-ASI deposes about rescuing the accused from the public persons and handing over him [accused] to the Police Inspector.
15. Before appreciating the evidence, it is better to have a glimpse of the evidence given by all witnesses of the prosecution..
16. PW1- Doctor deposes that, on 13.4.2015 at about 1.45 A.M., examined the victim girl-CW2. On medical examination it was found that, hymen was in-tact and no external injuries were found, she opined that, the individual is not used to sexual intercourse and collected the material objects of CW2 as MOs-1 to 8 and gave Medical Certificate as per Ex.P1. Further she deposes that, on the same i.e., on 13.4.2015 after examination of the victim girl-CW2, she examined another victim girl-CW3. On medical examination it was found that, hymen was in-tact and no external injuries were found, she opined that, the individual is not used to sexual intercourse and collected the material objects of CW3 as MOs-9 to 15 and gave Medical Certificate as per Ex.P2.
9 Spl CC No.319/201517. PW2-Doctor deposes that, on 13.4.2015, Madiwala police produced the accused by name Israel with requisition for medical examination about recent sexual intercourse and accordingly, he examined the accused and found no external injuries and on genital examination, there was no evidence of signs of recent sexual intercourse and there is nothing to suggest that, person is incapable of performing sexual intercourse. He collected the articles during the examination which are marked as MOs-16 to 20 and he issued Medical Certificate as per Ex.P3.
18. PW3- Victim girl she has not supported the case of the prosecution and she deposed that, the accused herein did not do any sexual assault on her, she has not given statement before the learned Magistrate. Therefore, prosecution has treated this witness as hostile and cross-examined her. Though she was cross-examined, nothing elicited from her to support the prosecution case. Her Statements before the SJPU Co-ordinator and before the Learned Magistrate as Exs.P4 and P5. The CDs said to have recorded by the Learned Magistrate while taking Statement of the Victim girl under Sec.164 of Cr.P.C are marked as MOs-21 and 22.
19. PW4 and PW9-mother and the father of the Victim girl-CW2/PW3, they also not supported the case of the prosecution. Though they were cross-examined by the prosecution, nothing worth elicited from them. Statements of PW4 and PW9 before the complainant police marked as Ex.P6 and Ex.P12 respectively.
10 Spl CC No.319/201520. PW5-Victim girl- she also not supported the case of the prosecution and she deposed that, the accused herein did not do any sexual assault on her, she has not given statement before the learned Magistrate. Therefore, prosecution has treated this witness as hostile and cross-examined her. Though she was cross-examined, nothing elicited from her to support the prosecution case. Her Statements before the SJPU Co-ordinator is marked as Ex.P7.
21. PW6 and PW7-mother and father of Victim girl-PW5 [CW3], they have not supported the case of the prosecution. Though they were cross-examined by the prosecution, nothing worth elicited from them. Statements of PW6 and PW7 before the complainant police are marked as Ex.P8 and Ex.P9 respectively.
22. PW8-Grand mother of Victim girl-PW3/CW2, also turned hostile to the prosecution case. She admitted her signature in Ex.P10 i.e., the Complaint and she also admitted her signature in Ex.P11 i.e., Spot Mahazar, but, she denied the contents of Exs.P10 and P11, though she was cross-examined by the prosecution, nothing worth elicited to support the prosecution case.
23. PW10-ASI deposes that, on 12.4.2015, he along with CW19 were deputed for patrolling duty, while they were on their duty at Hongasandra Balaji Layout, at 9.30 P.M., there was galata at 5th Cross, and the publics were beating a person and immediately, they rushed to the spot and rescued the said person 11 Spl CC No.319/2015 from beating by the public and informed their Inspector through Walkie-Talkie and within 10-15 minutes, their Inspector came to the spot and they hand over the said person to the Inspector, the person they hand over is the accused in the present case.
24. On the basis of the evidence of the aforesaid witnesses, learned Public Prosecutor submitted his arguments. He argued that the accused committed the heinous offence on the victim girls who are below the age of 12 years and therefore, he [accused] may be convicted.
25. On the other hand, the defence of the accused is that, he [accused] has not committed any sexual assault on the victim girls and he has been falsely implicated in this case and therefore prayed for acquittal.
26.. After going through the submissions of learned Public Prosecutor and learned defence Counsel and on analyzing the evidence of the prosecution witnesses, in the case the material witnesses i.e., the Victim girls and their parents turned hostile to the prosecution case, even in the medical report of the Victim girls, it is mentioned that hymen was intact. Absolutely there are no evidence available to say that, the accused has committed the alleged offence. Under these circumstances, in the opinion of this court, the prosecution has failed to prove the charge leveled against the accused beyond all reasonable doubt. Therefore, the accused is 12 Spl CC No.319/2015 entitled to an acquittal. Accordingly, I answer POINT NOS. 1 TO 4 IN THE NEGATIVE.
27. POINT NO.5: In view of my aforesaid discussions, I proceed to pass the following ORDER In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is acquitted of the offences punishable under Secs. 354(A), 376 of IPC and under Secs. 5(m) r/w Sec.6 of POCSO Act, 2012 and under Sec.9(m) r/w Sec. 10 of POCSO Act, 2012. His bail bond and surety bond obtained earlier stands cancelled. However, the bail bond and the surety bond executed by the accused on 13.1.2017 in compliance with Sec.437[A] of Cr.P.C shall be in force for a period of 6 Months from the date of this Judgment.
MOs-1 to 22 being worthless are ordered to be destroyed after the appeal period is over.
[Dictated to the Stenographer directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 17th day of January 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
13 Spl CC No.319/2015ANNEXURE Witnesses examined for the prosecution:
Pw.1 Dr.Mohana CW16 23.12.2015 Pw.2 Dr.G.Babu Rao CW17 23.12.2015 Pw.3 Lahiri CW2 20.4.2016 Pw.4 Jyotsna CW4 20.4.2016 Pw.5 Bindu CW3 20.4.2016 Pw.6 Kusuma CW8 20.4.2016 Pw.7 Raju CW9 20.4.2016 Pw.8 Lyla Srinivas CW1 18.10.2016 PW.9 Kishore CW10 18.10.2016 Pw10 Jameer Hussain CW18 5.1.2017
Documents marked for the prosecution:
Ex.P1 Medical certificate of the victim girl-PW3 Ex.P1(a) Signature of PW1 Ex.P2 Medical certificate of the victim girl-PW5 Ex.P2(a) Signature of PW1 Ex.P3 Medical certificate of the accused Ex.P3(a) Signature of PW2 Ex.P4 Statement of the victim girl-PW3 given before the Co-ordinator of SJPU Ex.P5 Sec.164 of Cr.P.C Statement of PW3 before the Learned Magistrate, Bangalore Ex.P5(a) Signature of PW3 Ex.P6 Statement of PW4 given before the complainant police 14 Spl CC No.319/2015 Ex.P7 Statement of victim girl- PW5 given before the Co-ordinator of SJPU Ex.P7(a) Signature of PW5 Ex.P8 Statement of PW6 given before the complainant police Ex.P9 Statement of PW7 given before the complainant police Ex.P10 Complaint dated: 12.4.2015 Ex.P10(a) Signature of PW8 Ex.P11 Spot Mahazar Ex.P11(a) Signature of PW8 Ex.P12 Statement of PW9 given before the complainant police Material Objects marked for the prosecution:
MO-1 Scalp hair
MO-2 Nail clippings
MO-3 Buccal smear
MO-4 Hymenal swab
MO-5 Hymenal Smear of the victim girl- CW2
MO-6 Perianal swab
MO-7 Perianal smear
MO-8 Blood
MO-9 Scalp hair
MO-10 Nail clippings
MO-11 Buccal smear
MO-12 Hymenal swab
MO-13 Hymenal Smear of the victim girl- CW3
MO-14 Perianal swab
MO-15 Perianal smear
15 Spl CC No.319/2015
MO-16 Scalp hair
MO-17 Pubic hair
MO-18 Coronal swab of the accused
MO-19 Urethral swab
MO-20 Blood
MO-21 and Two CDs [marked in the evidence of PW3/CW2] MO-22 Witness examined, documents and Material Objects marked for the accused: NIL LIV Addl., City Civil & Sessions Judge, Bangalore.16 Spl CC No.319/2015
17.1.17 Accused is present.
Judgment pronounced in open court:[ Vide separate detailed Judgment] In exercise with the powers conferred upon me under Criminal Procedure Code, the accused is acquitted of the offences punishable under Secs. 354(A), 376 of IPC and under Secs. 5(m) r/w Sec.6 of POCSO Act, 2012 and under Sec.9(m) r/w Sec. 10 of POCSO Act, 2012. His bail bond and surety bond obtained earlier stands cancelled. However, the bail bond and the surety bond executed by the accused on 13.1.2017 in compliance with Sec.437[A] of Cr.P.C shall be in force for a period of 6 Months from the date of this Judgment.
MOs-1 to 22 being worthless are ordered to be destroyed after the appeal period is over.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY 17 Spl CC No.319/2015