Bangalore District Court
SPL.C/295/2015 on 31 May, 2018
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 31st DAY OF MAY, 2018
- : PRESENT : -
SMT.M.LATHA KUMARI, M.A.,LL.M,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL.CC. NO. 295/2015
Complainant :
The State of Karnataka by
D.J.Halli Police Station, Bangalore.
[Rep. by learned Public Prosecutor,
Bangalore.]
/ VERSUS /
Accused :
1. Hariprasad,
S/o Raghuraj,
Aged about 32 years,
2. Gowramma
W/o Hariprasad,
Aged about 28 years,
A1 and A2 are
R/at No.79/1, II Cross,
Lakshminivas,
Ajjappa Block,
Dinnur Main Road,
R.T. Nagar Post,
Bangalore - 32.
2 Spl.C.C 295/15
3. Bhavana
W/o Srinivas
Aged about 39 years,
R/at No.27, Rayakote Road,
Vahab Nagar, Krishnagiri,
Tamilnadu.
4. Sathish,
S/o Kalaiah,
Aged about 26 years,
R/at No.30, Kodigehalli,
6th Main Road, 9th Cross,
Bengaluru.
(Reptd by Thyagaraju K.T & Associates,
- Advocates)
****
JUDGMENT
This is a charge sheet laid down by D.J.Halli Police, Bangalore City against accused No.1 to 4 in Cr.No.118/2015 for offences punishable under Section 366(A), 370, 370(A), 373 IPC & 3, 4, 5, 6, 7 & 9 of I.T.P Act and Section 3, 4, 7, 8, 17 of POCSO Act 2012.
2. The brief facts of the prosecution case as per the complaint of complainant Police Inspector CW-1 dated 24.3.2015 is that, accused No.3 being mother of the victim CW-9 persuaded her daughter to involve in the prostitution.
3 Spl.C.C 295/15 Accused No.1 and 2 in turn persuaded accused No.3 on the guise of making more money by involving in such activities through CW-9 and all of them detained the victim girl in the rented premises of accused No.1 and 2 situated at Chinnanna layout, R.T. Nagar post and caught by CW-1 when victim was with accused No.4 involved in sex affair and thereby CW-1 rescued the victim/CW9 who has been detained in the said house by accused No.1 to 3 for the purpose of immoral trafficking, conducted mahazar in presence of panch witnesses by recording the reason and handed over the accused No.1 to 4 and also the seized articles to the complainant-police along with mahazar Ex.P5 and thereby lodged complaint/report as per Ex.P6. In pursuance of said complaint dated 24.3.2015 which came to be received around 8.45 pm, CW-12 recorded the statement of land lord of the said house which was used as a brothel. Collected rental agreement, subjected the victim for medical examination, collected medical report of victim as per Ex.P1 and filed charge sheet against accused persons. As per the direction of this court CW-12 later 4 Spl.C.C 295/15 collected school records pertaining to victim as per Ex.P9 to 11 and her Aadhar card as per Ex.P12 and school ID as per Ex.P13.
3. After receiving the charge sheet, this court on taking cognizance, framed Charges against the accused persons for the offences punishable under Sec.366(A), 370, 373 of IPC and Section 3, 4, 5, 7, 9 of Immoral Traffic (Prevention) Act, 1956 (herein after referred to as I.T.P Act) and Section 7 r/w 8 and Section 17 r/w 18 of POSCO Act, 2012. Since, accused persons pleaded not guilty the prosecution was called upon to prove the guilt against the accused persons initially.
4. To prove the guilt against accused persons prosecution examined as many as 6 witnesses PW-1 to 6 and got marked as many as 13 documents Ex.P1 to P.13 and also got marked material objects MO-1 to 6. Accused statement under Section 313 Cr.P.C has been recorded, though all accused persons denied the incriminating 5 Spl.C.C 295/15 evidence read over and explained to them not chosen to lead any evidence on their behalf.
5. The learned counsel for accused asserted that except the police officials, none of the witnesses have supported the case of prosecution including the victim. It is a suvo-moto complaint by cW-1 for no reason. No independent witnesses examined on behalf of prosecution to establish any such case of trafficking and prays for acquittal of accused persons.
6. The learned Public Prosecutor, on the other hand submits that there is no reason to disbelieve the oral testimony of complainant CW-1 who has conducted the raid in accordance with the law by preparing record of reasons and victim was rescued from the hands of accused No.1 to
4. CW-1 who has been examined as PW-4 narrated the manner of occurrence in detail in his chief examination. Nothing has been elicited in the cross-examination of CW-1 so as to disbelieve the version of CW-1/PW-4. Even victim girl in her cross-examination admits that she has given 6 Spl.C.C 295/15 statement before learned Magistrate as per Ex.P2 and hence prays for conviction of accused persons.
7. Now, the points that arise for my consideration are as under:
1. Whether the prosecution has proved beyond reasonable doubt that, accused No.1 induced CW-9 aged about 16 years, the minor victim girl to illicit intercourse with another person by persuading accused No.3 with payment of money and thereby induced CW-9 for immoral trafficking and thereby committed an offence punishable under Sec.366(A) of IPC?
2. Whether the prosecution has proved beyond reasonable doubt that, accused No.1 to 3 seduced CW-9 the minor victim girl for immoral trafficking by detaining her in a rented house of accused No.1 and 2 situated at No.5, Kala Nilaya, Chinnanna Layout, R.T. Nagar, Bengaluru and thereby committed the 7 Spl.C.C 295/15 offence punishable under Sec.370 of IPC?
3. Whether the prosecution has proved beyond reasonable doubt that, accused No.1 to 3 forcibly induced CW-9 the minor victim girl for immoral trafficking by engaging her for sexual exploitation and thereby committed the offence punishable under Sec.370(A) of IPC?
4. Whether the prosecution has proved beyond reasonable doubt that, accused No.1 & 2 obtained possession of CW-9, the minor victim girl for immoral trafficking by offering monitory payments to accused No.3 and used CW-9 for the purpose of prostitution and thereby committed the offence punishable under Sec.373 of IPC?
5. Whether the prosecution has proved that, accused No.1 & 2 used the rented house No.5 of Kala Nilaya building No. 870/1, Chinnanna
8 Spl.C.C 295/15 Layout, R.T. Nagar, Bengaluru for immoral trafficking/brothel and thereby committed the offence punishable under Sec.3 of I.T.P. Act?
6. Whether the prosecution has proved that, accused No.1 to 3 using the earnings of the CW-9 by exploiting her sexually for their livelihood and thereby committed the offence punishable under Section 4 of I.T.P Act?
7. Whether the prosecution has proved that, accused No.3 inspite of knowing that the CW-9 is minor girl, she detained CW9 in the house of accused No.1 and 2 and induced her to immoral trafficking for making easy money and thereby committed an offence punishable under Sec.5 of ITP Act?
8. Whether the prosecution has proved that, accused No.1 to 3 engaged in sexual activity within the stipulated distance of public place and thereby 9 Spl.C.C 295/15 committed an offence punishable under Sec.7 of ITP Act?
9. Whether the prosecution has proved that, accused 3 induced the CW-9 the minor victim for immoral trafficking so as to live on earnings of prostitution and thereby committed the offence punishable under Sec.9 of ITP Act?
10. Whether the prosecution has proved that, accused No.4 committed penetrative sexual assault on CW-9 the minor victim and thereby committed the offence punishable under Sec.3 r/w 4 of POCSO Act 2012?
11. Whether the prosecution has proved that, accused No.4 committed sexual assault on CW-9 the minor victim and thereby committed the offence punishable under Sec.7 r/w 8 of POCSO Act 2012?
12. Whether the prosecution has proved that, accused No.1 & 2 inducing 10 Spl.C.C 295/15 accused No.3 by offering payments, sexually exploited CW-9 and thereby committed the offence punishable under Sec.17 r/w 18 of POCSO Act 2012?
13. What Order?
8. My findings on the above points are as under:-
Point No.1 to 4 : In the affirmative Point No.5 to 9 : In the affirmative Point No.10 : In the negative Point No.11 : In the affirmative Point No.12 : In the affirmative Point No.13 : As per final orders for the following REASONS
9. Points No.1 to 4: These four points are taken together for common discussion to avoid repetition of facts as they are interconnected to each other and punishable under the provisions of I.P.C.
10. It is the definite case of the prosecution that, accused No.1 to 3 by detaining the victim girl in the rented premises of accused No.1 and 2 situated at Kala Nilaya, 11 Spl.C.C 295/15 Chinnanna layout, R.T. Nagar, Bengaluru subjected the victim girl for Immoral trafficking and thereby exploited her sexually. All these persons induced the minor girl CW-9 and forced her to have illicit intercourse with accused No.4 in the said house for the purpose of living on earnings of prostitution and thereby exploited CW-9. It is not in dispute that victim who was in the custody of state home initially has been given to the custody of her father. At the time of entertaining petition under Section 17(2) of I.T.P Act, the oral testimony of victim's father has been recorded by this court and he was cross-examined by the learned Public Prosecutor. In his cross-examination victim's father has stated that victim's mother has been residing separately from him since 4 to 5 months from the date of his examination. He further stated that he is residing in his mother's house. After conducting this necessary enquiry, custody of victim girl has been given to her father. Victim was examined as PW-1 before this court on 29.8.2016. In her chief-examination, she admits that accused No.3 is her mother and deposed that she has not given any statement 12 Spl.C.C 295/15 before the learned Magistrate against accused persons and also states that her signatures has been obtained on Ex.P1 & P2 near her house i.e., Ex.P1 is the medical report of victim, Ex.P2 is the statement of victim recorded under Section 164 of Cr.P.C by the learned Magistrate. This witness was treated as hostile by the learned Public Prosecutor. She was subjected to cross-examination by the learned Public Prosecutor. In her cross-examination, victim deposed that she was very panic at that time, thinking that she will be sent to remand home she has given statement as stated in Ex.P2. This version of victim elicited in the cross-examination by the prosecution establishes that victim's statement has been recorded by the learned Magistrate as per Ex.P2. Inspite of such statement elicited in her cross-examination by the prosecution, the learned counsel for accused persons submitted that there is no cross-examination on behalf of accused No.1 to 4. This oral testimony of victim accordingly remained unchallenged, who deposed before this court on oath that, she has given statement before the learned Magistrate. Whether PW-1 13 Spl.C.C 295/15 was actually panic at that time or not is a point to be considered at this stage. In this regard now let me go through the statement of victim recorded under Section 164 of Cr.P.C, which is as per Ex.P2. The learned Magistrate before recording the statement of victim has put some questions to her. While answering such questions victim has stated her name, her home town, her education aspects and also stated that she has been brought before the Magistrate by the complainant-police from Ashrama. She further while answering question No.5 at the time of her statement has stated that she informed to police about the incident and while answering question No.7 stated that she has not been threatened by anybody insisting her to depose in accordance with their tune. Hence, at the time of recording her statement under Ex.P2 victim was aged about 16 years who had already completed SSLC when she had brought from state home for the purpose of recording her statement, there was no reason for her to get panic and give statement before the learned Magistrate. That apart, the learned Magistrate by posing such questions and by 14 Spl.C.C 295/15 conducting preliminary enquiry has created comfort zone to the victim before recording her statement under Section 164 of Cr.P.C. It is not the version of victim before this court that she has not given any statement before the learned Magistrate as per Ex.P2. According to her she gave such statement since she was under panic. Whereas, the answers given by her before the learned Magistrate during preliminary enquiry establishes that she was not panic and she was very much comfortable. That apart, the learned Magistrate has specifically asked victim under question NO.7 that whether she has been threatened by any persons and this victim answered that there is no such threat on her. It is also asked that before brining the victim before the learned Magistrate whether she has been detained by anybody, anywhere and this witness has been answered that there is no such detention. These answers available in Ex.P2 establishes that victim has narrated the incident before the learned Magistrate after understanding the questions put to her and she was not under any pressure or threat or under panic state. When such being the case, 15 Spl.C.C 295/15 Ex.P2 being unchallenged document, since victim has not been subjected to cross examination by accused No.1 to 4, inspite of giving an opportunity, can be relied upon by this court without any hesitation. As per Ex.P2, victim has stated in her statement before the learned Magistrate that accused No.3 Smt. Bhavana is her mother, she herself brought her to the house of accused No.2 Gowramma and her father is a tiles worker. Accused No.3 was having some financial difficulties, she asked victim's father to give some amount telling that same is required to clear finance installments and victim's father refused to give any amount to accused No.3. Since victim unable to search any job at that time, she came to the house of accused No.2. At that time, one person came to the house of accused No.2, when she was coming out of the house by finishing her work with that person, police came there and brought her to the police station. According to this version, on 24th when she was in the house of accused No.2 police came there and brought her to the police station.
16 Spl.C.C 295/15
11. CW-7 is the land lord of said house. She deposed in her chief-examination when she was examined as PW-3 that she had let-out the house to accused No.1 and 2. She came to know that accused No.1 and 2 were using her house as a brothel, she was not aware of the same earlier and came to know the same through police. In her cross- examination, it was suggested that accused No.1 and 2 were working elsewhere. PW-3 however pleaded her ignorance about the same and deposed that she is residing on the other side road of the said house and thereby she is not aware of the same. She has further denied the suggestion that she is deposing falsely before this court to assist complainant-police.
12. The complainant-police inspector CW-1 was examined as PW-4 before this court. In his cross- examination, he has stated that on 24.3.2015 at about 2 pm when he was on duty he received information that at Chinnanna Layout in one of the house some persons are involved in prostitution. Accordingly, after obtaining 17 Spl.C.C 295/15 necessary permission from his higher authorities at about 2.30 pm along with CW-4 to 6 he left his CCB office and reached the spot around 4 pm. Wherein, he requested CW2 and 3 to assist them as a panch witness, prepared record of reasons as required under Section 15 of I.T.P Act as per Ex.P8 and conducted search in the house No.5 situated at Chinnanna Layout and rescued the victim. He has taken custody of accused No.1 to 4, seized articles MO- 1 to 6 from accused persons, conducted spot mahazar as per Ex.P5 between 5 pm to 7.30 pm and later, accused persons who were taken to custody were handed over to complainant-police along with MO-1 to 6 and his report as per Ex.P6. In his chief-examination he has also identified the notice issued to CW-2 and 3 as per Ex.P7 and record of reason as per Ex.P8. In his cross-examination it is suggested that before conducting the necessary search in the house No.5 situated at Chinnanna Layout inhabitance of locality were not made as a witness. Further it is suggested that accused No.1 to 4 were not at all present at the spot and MO-1 to 6 were not seized from them. It is also 18 Spl.C.C 295/15 suggested that victim was also not present in the said house at that time and this case has been created against accused persons. PW-4 herein is a police officer working for CCB at that time. According to his oral testimony as per the information received he had reasonable grounds for believing that the offence under I.T.P Act has been committed in respect of particular person that is the victim herein and thereby he conducted search of the said premises taken the persons who are available in the said house i.e., accused No.1 to 4 and seized MO-1 to 6 and thereby rescued the victim from the hands of accused No.1 to 4. In his cross-examination except suggesting that a false case has been created against these accused nothing much has been elicited by accused counsel. There is absolutely no materials placed before this court to show that PW-4 had any animosity against these accused persons. There is no reason for PW-4 to falsely implicate these persons. Apart from the version of PW-4, the victim in her oral testimony before this court, admits that she has given statement before the learned Magistrate as per Ex.P2.
19 Spl.C.C 295/15 Even in her statement she has stated that her mother i.e., accused No.3 brought her to the house of accused No.2. It is not in dispute that accused No.1 & 2 are husband and wife and accused No.3 is mother of the victim. When she was involved with one customer, police came there and brought her to police station. This version of victim available in Ex.P2 corroborates with the oral testimony of CW-1 herein. As I have already stated it is not the case of accused persons that PW-4 had any animosity or ill-will against these persons. Under such circumstances, there is no reason to disbelieve the oral testimony of complainant- police officer who conducted search as required under Section 15 of I.T. P Act and rescued the victim. Further, the IT P Act is a social welfare legislation to abolish the commercial sex activity carried on by the brothel keepers by using innocent girls and also to remove the evil for the good of the society. Whether, a particular woman/man running a brothel in their house, need not necessarily be proved by direct evidence i.e., by the testimony of persons who had direct dealings with such woman/man. However, 20 Spl.C.C 295/15 the evidence adduced should be of clear and convincing nature.
13. PW-5 is another police official who deposes in accordance with the oral testimony of PW-4. She is the police official who accompanied PW-4 at the time of necessary search of the premises situated at Chinnanna Layout, which was used as a brothel by accused No1 to 3 herein.
14. PW-6 H.T. Kulkarni Police inspector is the Investigating Officer who subjected the victim for medical examination, received the medical report as per Ex.P1, recorded the statement of land lord of the house i.e., PW-3, collected documents pertaining to said house and laid the charge sheet against these accused persons. The victim has stated in her chief-examination that, she has put her signature on Ex.P1 which is her own medical report and victim statement recorded under Section 164 of Cr.P.C, i.e., Ex.P2 in her residence. Whereas, in her own cross- examination by the learned Public Prosecutor it is elicited 21 Spl.C.C 295/15 that she has actually given statement before the learned Magistrate as per Ex.P2. Under such circumstances, the version of victim that she has put her signature on Ex.P1 and P2 near her house holds no water. In her statement under Ex.P2 victim has categorically stated that her mother i.e., accused No.3 had financial difficulties and hence she brought her to the house of accused No.2. Wherein she was involved with one of the customer and at that time police came there and brought her to the police station. This statement in Ex.P2 is supported by the complainant- police officer PW-4. Owner of the said house PW-3 deposes that through police she came to know that accused No.1 and 2 who are her tenants were using her premises for the purpose of prostitution. Another police constable PW-5 deposes that she accompanied PW-4 at the time of search. In her cross-examination, it is suggested that accused persons are in no way connected with MO-1 to 6. Further in the cross-examination of Investigating Officer PW-6 it is suggested that victim was never subjected to medical examination. As I have already stated victim was examined 22 Spl.C.C 295/15 as PW-1 before this court. None of the accused persons nor their respective counsels cross-examined victim. If victim was never subjected for medical examination and victim was not present in the said house, victim will be the better person to speak about the same. Whereas, no such question was put to victim by accused persons. In the absence of examining the victim with regard to her medical report Ex.P1 and statement Ex.P2, the suggestion put to Investigating Officer in this regard appears vague and baseless. It is also suggested that false case has been created against these accused persons. As I have already stated there is no reason either for PW-4 the complainant- police officer or for PW-6 the Investigating Officer to falsely implicate accused persons before this court. Apart from oral testimony of these witnesses prosecution has also placed MO-1 to 6 before this court. PW-4 at the time of conducting mahazar as per Ex.P5 recovered amount of Rs.2,000/- from accused No.1 as per MO-2. Accused No.3 was not residing with her husband i.e., father of victim since 3 to 4 months prior to the incident. This has been 23 Spl.C.C 295/15 established before this court while considering the application filed under Section 17(2) of I.T.P Act by victim's father. At the time of recording statement of these accused persons under Section 313 of Cr.P.C, accused No.1 and 2 admits that they have taken house No.5 at Chinnanna layout from PW-3 for lease. They were tenants under PW-3 is not in dispute. Victim has stated in her statement before the learned Magistrate that her mother i.e., accused No.3 had taken her to the house of accused NO.2 i.e., the place of incident. PW-6 the Investigating Officer has also produced study certificate and other school documents of the victim herein as per Ex.P9 to 13. These documents establishes that victim was a minor at that time, with regard to the age of victim there is no dispute. Accused No.2 categorically stated before this court while recording her statement that she is not at all acquainted with victim herein. Whereas, victim identified the accused No.2 by specifically taking her name before the learned Magistrate. Accused No.1 while answering the question No.5 admits that PW-4 came to his house on 24.3.2015 around 4 pm. 24 Spl.C.C 295/15 He also admits that himself and his wife accused No.2 were residing in the said house No.5. Victim was taken to the custody of PW-4 from the said house No.5 itself. All these circumstances establishes that accused No.1 to 3 induced the minor victim seduced to illicit intercourse with accused No.4 and also induced her for payments by harboring her at house No.5 and thereby exploited her by engaging her knowing that she is a minor for sexual exploitation. These accused persons exploited her sexually and living on earnings from prostitution. The victim's hymen being torn and there being evidence to indicates that she was habituated to sexual intercourse, Accused No.1 to 3 cannot take 'U' turn by suggesting that Ex.P1 i.e., medical report of the victim is a created document. On the other hand, prosecution examined the medical expert CW-10 as PW-2 before this court. PW-2 in his chief-examination narrated about the status of labia majora, fourchette and also hymen tare of victim. In his cross-examination, he has denied the suggestion that after attaining the age of 10 years in a girl child naturally labia majora will be apart. Though it is 25 Spl.C.C 295/15 suggested to the Investigating Officer PW-6 that victim was never subjected for medical examination, same was not suggested to this witness, who examined the victim and submitted the report as per Ex.P1. This is a clear case of protector becoming the violator, which the criminal law of this country seriously frowns upon. The attitude of accused No.3 towards her daughter/victim are unthinkable. Considering these materials, more particularly there is material that the victim was infact subjected to sexual activity as per Ex.P1. I have answered points No.1 to 4 in the affirmative.
15. POINTS No.5 to 9:- These four points are taken together for common discussion to avoid repetition of facts as they are interconnected to each other and punishable under Immoral Traffic (Prevention Act 1956). The statement of victim before the learned Magistrate available in Ex.P2 establishes that she was taken to the house of accused No.2 i.e., house No.5, Kala nilaya, for the purpose of sexual exploitation and she was brought to 26 Spl.C.C 295/15 police station by concerned police when she was came out by attending her customer in the said house. She has also stated that her mother had some financial problems. Victim could not get any job, hurriedly and hence she was involved in such act. According to Ex.P1 the opinion of expert is that victim has been used to an act like that of sexual activity, nothing much has been elicited in the cross-examination of doctor who was examined as PW-2 before this court. PW-2 has clearly narrated about the observation made during examination of the victim, more particularly her genital organ. If accused No.1 to 3 not exploited the victim herein, it is for them to establish that who are the persons beyond victim who subjected her for sexual activity. As I have already stated except suggesting to the prosecution witnesses that false case has been created against accused persons nothing much has been elicited on behalf of accused persons. PW-4 has deposed about compliance of Section 15 of I.T.P Act, search conducted by him and also conducting of mahazar as per Ex.P5 and reported the same to the complainant-police as per Ex.P6. He has also stated 27 Spl.C.C 295/15 that at the time of Ex.P6 he handed over all accused persons and MO-1 to 6 and also original mahazar Ex.P5 to the complainant-police and rescued victim. Victim specifically stated in Ex.P2 that she was taken to the house of accused No.2 by her mother. It is not in dispute that house No.5 was situated in residential area i.e., R.T. Nagar just opposite to Ambedkar Medical college. It is not in dispute that victim was a minor at that time. She has pleaded financial difficulties of her mother accused No.3 which establishes that accused No.3 persuaded minor girl to involve in such activity like immoral trafficking for the purpose of making money. There is no reason to disbelieve the oral testimony of complainant-police officer PW-4 and other prosecution witnesses. PW-3 categorically stated that she came to know that her house has been used by accused No.1 & 2 for the purpose of prostitution. Accused No.1 admits the presence of complainant on 24.3.2015 at 4 pm in his house, i.e, house No.5. There is absolutely no material available to disbelieve the oral testimony of prosecution witnesses, there is no reason for 28 Spl.C.C 295/15 complainant-police officer or the Investigating Officer to falsely implicate these accused persons. Admittedly accused No.3 is not residing with her husband. The ITP Act is a social welfare legislation came into existence to remove the evil for the good of the society. As I have already stated whether a particular person running a brothel in their house, need not necessarily be proved by direct evidence i.e., by the testimony of persons who had direct dealing with such persons of the brothel. The evidence of PW-4 is clear and convincing, accused No.1 to 3 knowing that victim was minor exploited her sexually and living on earnings of prostitution. In a case like this, the court has first to aeecess the trustworthyness of the evidence adduced and available on record. If such evidence adduced and available on record to be of worthy of being relied upon then the testimony has to bse accepted and acted upon though there may be other witnesses i.e., panch witnesses availaale who could not secured and examined. There is no material placed by accused No.1 to 3 with regard to their avocation for their livelihood. The house of PW-3 i.e., place of 29 Spl.C.C 295/15 incident is situated opposite to medical college and accused No1. to 3 used the same as a brothel. Accused No.3 being mother of victim seduced her for prostitution and she personally taken victim to the house of accused No.1 and 2 for the sake of prostitution. Medical report establishes that the victim hymen is torn and she has been habituated to sexual intercourse. The attitude of accused No.1 to 3 towards victim are unpardonable in law. It is not difficult for accused persons like this to meddle with the prosecution witnesses and thereby to see that victim shall turn hostile. Considering the same and also oral testimony of victim elicited by the learned Public Prosecutor in her cross- examination and the facts and circumstances discussed supra I have answered points No.5 to 9 in the affirmative.
16. POINT NO.10 & 11:- These two points are taken together for common discussion to avoid repetition of facts as they are interconnected to each other. It is the case of prosecution that this accused No.4 had penetrative sexual assault with minor victim and he was 30 Spl.C.C 295/15 taken to custody by PW-4 along with accused No.1 to 3 and at the time of necessary search he also seized mobile phone from this accused. Victim admits that she has been produced before the learned Magistrate and her statement was recorded by the learned Magistrate. In her statement she has categorically stated that immediately after her activity with one of the customer when she came out, police came there and taken her to police station. As per mahazar Ex.P5 and the report Ex.P6 available before this court, this accused involved with victim minor girl at the time of necessary search in house No.5. Insptie of, this accused has been specifically charged for offence punishable under Section 3 r/w 4 of POCSO Act, 2012 and also Section 7 r/w Section 8 of POCSO Act. He has not made any effort to rebut the case of prosecution. In a case like this unless the contrary is proved, it shall be presumed that prosecution has proved its case. If he was in no way connected with this case what made the complainant-police to array him as accused No.4 is again not explained by this accused inspite of giving sufficient opportunity by this court at the time of 31 Spl.C.C 295/15 recording statement under Section 313 of Cr.P.C. From the answers given by this accused the defence of accused No.4 is one of the denial. As per Ex.P1, there is no material that the victim was infact subjected to penetrative sexual assault within one or two days from the date of her examination. According to prosecution victim was rescued on 24.3.2015 and on the same day she was subjected to medical examination. Whereas, the opinion of PW-2, concerned doctor is that on local genital examination of victim, evidence of signs of recent sexual intercourse absent. Even victim in her statement before the learned Magistrate only stated that when she came out after attending the customer police came there and brought her to police station. There is no material that victim was infact subjected to penetrative sexual assault by accused N.4 though it there is material that accused No.4 was present with victim at the time of search. As I have already stated unless the contrary is proved it shall be presumed that prosecution has proved the case against this accused since he has been charge sheeted for the offence punishable 32 Spl.C.C 295/15 under Section 3, 7 r/w Section 4 and 8 of POCSO Act, 2012. Ex.P1 establishes that accused No.4 has not committed any penetrative sexual assault. Non-availability of contrary materials on behalf this accused establishes that prosecution has proved its case against this accused for offences punishable under Section 7 r/w 8 of POCSO Act. In the absence of contrary materials there is no reason to disbelieve the documentary evidence Ex.P5, P6 and also MO-6 Samsung mobile phone seized by PW-4 from this accused. Accordingly, I have answered point No.10 in the negative and point No.11 in the affirmative.
17. POINT NO.12:- Accused No.1 to 3 knowing that victim was minor exploited her sexually and living on earnings of prostitution. The statement of victim available under Ex.P2 and also the oral testimony of PW- 2 to 6 establishes that these accused persons being protectors turned as violators and allowed accused No.4 to commit sexual assault on this minor victim and thereby abetted accused No.4 to commit an offence under Section 7 of 33 Spl.C.C 295/15 POCSO Act. Accordingly, this point also answered accordingly.
18. POINT NO.13: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(2) of Cr.P.C Accused 1 to 4 are found guilty of the offence punishable as under:-
Accused 1 is found guilty of the offence punishable under Section 366(A), 370, 370(A), 373 of IPC and Under Section 3, 4 and 7 of I.T.P. Act and under Section 17 of POCSO Act 2012.
Accused 2 is found guilty of the offence punishable under Section 370, 370(A), 373 of IPC and Section 3, 4 & 7 of ITP Act and under Section 17 of POCSO Act 2012 Accused 3 is found guilty of the offence punishable under Section. 370, 370(A), of IPC and under Section 4, 5, 7 and 9 of ITP Act and under Section 17 of POCSO Act 2012.
34 Spl.C.C 295/15 Accused 4 is found guilty of the offence punishable under Section 7 r/w 8 of POCSO Act 2012.
To hear regarding sentence.
(Dictated to the Stenographer, transcript corrected and then pronounced by me in open court on this the 31st day of May, 2018.) (M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
ORDER ON SENTENCE Heard learned counsel for accused persons and learned Public Prosecutor regarding the sentence.
2. The learned counsel for accused persons submits that the accused persons are all young and this is thee first offence alleged against them. Accused No.4 is a married man, married recently six months back and also having family and prays for leniency.
3. The learned Public Prosecutor has submitted that accused persons knowing that victim girl herein is a minor child not only played with her life but also exploited her sexually and it is not a fit case to show any leniency to the 35 Spl.C.C 295/15 accused persons hence pray for maximum punishment for accused persons.
The accused persons have exploited the childhood of minor victim girl who has not seen the light of the day for money and lust. Hence, I pass the following, ORDER • Accused No.1 is ordered to undergo imprisonment for 10 years and pay fine of Rs.50,000/- for offence under Section 366(A) of IPC, in default of payment of fine, the accused No.1 shall undergo simple imprisonment for a period of one year. Further, accused No.1 is ordered to under go Rigorous imprisonment of 10 years and pay a fine of Rs.50,000/- For offence under Section 370 of IPC, in default of payment of fine, the accused No.1 shall undergo simple imprisonment for another one year. For offence under Section 373 of IPC this accused No.1 is ordered to under to imprisonment of 10 years, and pay a fine of Rs.50,000/-, in default of payment of fine, the accused No.1 shall undergo simple imprisonment for a period of one year, which shall run consecutively.
• In view of this order, no separate punishment are imposed for offences punishable under Section 370(A) of IPC and Under Section 3, 4 and 7 of 36 Spl.C.C 295/15 I.T.P. Act and under Section 17 of POCSO Act 2012.
• The Accused 2 is ordered to undergo Rigorous imprisonment of 10 years and pay a fine of Rs.50,000/-, for the offence under Section 370 of IPC, in default of payment of fine, the accused No.2 shall undergo simple imprisonment for a period of one year. Accused No.2 is further ordered to undergo imprisonment of 10 years, and pay a fine of Rs.50,000/-, for offence punishable under Section 373 of IPC, in default of payment of fine, the accused No.2 shall undergo simple imprisonment for a period of one year, which shall run consecutively.
• In view of this order, no separate punishments are imposed for offences punishable under Section 370(A) of IPC and Under Section 3, 4 and 7 of I.T.P. Act and under Section 17 of POCSO Act 2012.
• The Accused 3 is ordered to undergo imprisonment for life and pay a fine of Rs.50,000/- for offences punishable under Section 9 of ITP Act, in default of payment of fine, the accused No.3 shall undergo simple imprisonment for a period of one year.
• In view of this order against accused No.3, no separate punishment are imposed for offences punishable under Section 370, 370(A) of IPC and Under 37 Spl.C.C 295/15 Section 4, 5 and 7 of I.T.P. Act and Section 17 of POCSO Act 2012.
• Accused 4 is order to undergo imprisonment for five years and pay a fine of Rs.50,000/- for the offence punishable under Section 7 r/w 8 of POCSO Act 2012, in default of payment of fine amount, the accused No.4 shall undergo Simple Imprisonment of a period of one year.
• MO-1, 2, 3, 5 & 6 are ordered to be forfeited to state and MO-4 being worthless is ordered to be destroyed after appeal period is over and if appeal is filed, after disposal of appeal. • The entire fine amount is ordered to be paid to the victim CW-9/PW-1 as compensation under Section 357 of Cr.P.C.
• The Accused No.1 to 4 are entitled to set off under Section 428 of Cr.P.C. • Bail bond of the accused persons stands cancelled.
• Free copy of this Judgment to be supplied to the accused persons.
(Dictated to the Stenographer, transcript computerized and print out taken by him and after correction signed and then pronounced by me in open court on this the 31st day of May, 2018.) (M.LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
38 Spl.C.C 295/15 ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Srinivas @ Venkatesh under Section 17(2) of ITP Act PW.1 victim girl PW.2 B.M. Nagaraju PW.3 Nimitha PW.4 K.S. Thanveer PW.5 Shobha PW.6 H.T. Kulakarni LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Achievement record Ex.P 2 Study certificate Ex.P 1 Medical report of victim girl Ex.P1(a) Signature of victim Ex.P 1(b) Signature of PW-2 Ex.P2 Statement of victim u/Sec statement of victim u/Sec statement of victim u/Sec 164 of Cr.P.C of Cr.P.C of Cr.P.C Ex.P 2(a) Signature of victim Ex.P4 D.L Ex.P5 Panchanama Ex.P5(a) Signature of PW-4 Ex.P5(b) Signature of Ex.P6 Complaint Ex.P6(a) Statement of PW-4 39 Spl.C.C 295/15 Ex.P7 Notice to witness Ex.P7(a) Signature of PW-4 Ex.P8 Record of reason u/ Sec 15 of ITP Act Ex.P8(a) Signature of PW-4 Ex.P9 Victim's study details Ex.P10 Certified Copy of T.C Ex.P11 certified Copy of Application for admission Ex.P12 Aadhar card copy of Victim Ex.P13 Certified copy of I D card of victim LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE NIL LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE MO-1 Mobile phone MO-2 Cash of Rs.2000/- (500/- 3 notes, 100/- 5 notes) MO-3 Samsung mobile phone MO-4 Verna condom MO-5 Zen mobile phone MO-6 Samsung mobile phone (M.LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
*** 40 Spl.C.C 295/15 31.05.2018 Judgment pronounced in the open court, operative portion of which reads as under:-
ORDER Acting under Section 235(2) of Cr.P.C Accused 1 to 4 are found guilty of the offence punishable as under:-
Accused 1 is found guilty of the offence punishable under Section 366(A), 370, 370(A), 373 of IPC and Under Section 3, 4 and 7 of I.T.P. Act and under Section 17 of POCSO Act 2012.
Accused 2 is found guilty of the offence punishable under Section 370, 370(A), 373 of IPC and Section 3, 4 & 7 of ITP Act and under Section 17 of POCSO Act 2012 41 Spl.C.C 295/15 Accused 3 is found guilty of the offence punishable under Section. 370, 370(A), of IPC and under Section 4, 5, 7 and 9 of ITP Act and under Section 17 of POCSO Act 2012.
Accused 4 is found guilty of the offence punishable under Section 7 r/w 8 of POCSO Act 2012.
To hear regarding sentence.
(M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
42 Spl.C.C 295/15 Orders on Sentence pronounced in the open court, operative portion of which reads as under:-
ORDER ON SENTENCE • Accused No.1 is ordered to undergo imprisonment for 10 years and pay fine of Rs.50,000/- for offence under Section 366(A) of IPC, in default of payment of fine, the accused No.1 shall undergo simple imprisonment for a period of one year. Further, accused No.1 is ordered to under go Rigorous imprisonment of 10 years and pay a fine of Rs.50,000/- For offence under Section 370 of IPC, in default of payment of fine, the accused No.1 shall undergo simple imprisonment for another one year. For offence under Section 373 of IPC this accused No.1 is ordered to under to imprisonment of 10 years, and pay a fine of Rs.50,000/-, in default of payment of fine, the accused No.1 shall undergo simple imprisonment for a period of one year, which shall run consecutively.
• In view of this order, no separate punishment are imposed for offences punishable under Section 370(A) of IPC and Under Section 3, 4 and 7 of I.T.P. Act and under Section 17 of POCSO Act 2012.
• The Accused 2 is ordered to undergo Rigorous imprisonment of 10 years and pay a fine of Rs.50,000/-, for the offence under Section 370 of IPC, in 43 Spl.C.C 295/15 default of payment of fine, the accused No.2 shall undergo simple imprisonment for a period of one year. Accused No.2 is further ordered to undergo imprisonment of 10 years, and pay a fine of Rs.50,000/-, for offence punishable under Section 373 of IPC, in default of payment of fine, the accused No.2 shall undergo simple imprisonment for a period of one year, which shall run consecutively.
• In view of this order, no separate punishments are imposed for offences punishable under Section 370(A) of IPC and Under Section 3, 4 and 7 of I.T.P. Act and under Section 17 of POCSO Act 2012.
• The Accused 3 is ordered to undergo imprisonment for life and pay a fine of Rs.50,000/- for offences punishable under Section 9 of ITP Act, in default of payment of fine, the accused No.3 shall undergo simple imprisonment for a period of one year.
• In view of this order against accused No.3, no separate punishment are imposed for offences punishable under Section 370, 370(A) of IPC and Under Section 4, 5 and 7 of I.T.P. Act and Section 17 of POCSO Act 2012.
• Accused 4 is order to undergo imprisonment for five years and pay a fine of Rs.50,000/- for the offence punishable under Section 7 r/w 8 of POCSO Act 2012, in default of payment 44 Spl.C.C 295/15 of fine amount, the accused No.4 shall undergo Simple Imprisonment of a period of one year.
• MO-1, 2, 3, 5 & 6 are ordered to be forfeited to state and MO-4 being worthless is ordered to be destroyed after appeal period is over and if appeal is filed, after disposal of appeal. • The entire fine amount is ordered to be paid to the victim CW-9/PW-1 as compensation under Section 357 of Cr.P.C.
• The Accused No.1 to 4 are entitled to set off under Section 428 of Cr.P.C. • Bail bond of the accused persons stands cancelled.
• Free copy of this Judgment to be supplied to the accused persons.
(M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.
45 Spl.C.C 295/15 Government of Karnataka FORM No.34 Warrant of Commitment on a sentence of imprisonment Or fine if passed by a Magistrate (See Section 248 and 255) To, The Officer incharge of the Jail at Bangalore. Whereas on the 31st day of May, 2018 (Name of Prisoners) A1. Hariprasad, S/o Raghuraj, Aged about 32 years, A2. Gowramma W/o Hariprasad, Aged about 28 years, both are R/at No.79/1, II Cross, Lakshminivas, Ajjappa Block, Dinnur Main Road, R.T. Nagar Post, Bangalore - 32. A3. Bhavana, W/o Srinivas, Aged about 39 years, R/at No.27, Rayakote Road, Vahab Nagar, Krishnagiri, Tamilnadu. A4. Sathish, S/o Kalaiah, Aged about 26 years, R/at No.30, Kodigehalli, 6th Main Road, 9th Cross, Bengaluru. prisoners in Case Spl.C.C.No.295/2015 (of the calendar for 2018), is convicted before me (name and official designation) Smt. M.Latha Kumari, LIII Addl.City Civil Court, Bangalore for the offences of (mention the offence or offences concisely) Accused 1 is found guilty of the offence punishable under Section 366(A), 370, 370(A), 373 of IPC and Under Section 3, 4 and 7 of I.T.P. Act and under Section 17 of POCSO Act 2012. Accused 2 is found guilty of the offence punishable under Section 370, 370(A), 373 of IPC and Section 3, 4 & 7 of ITP Act and under Section 17 of POCSO Act 2012. Accused 3 is found guilty of the offence punishable under Section. 370, 370(A), of IPC and under Section 4, 5, 7 and 9 of ITP Act and under Section 17 of POCSO 46 Spl.C.C 295/15 Act 2012. Accused 4 is found guilty of the offence punishable under Section 7 r/w 8 of POCSO Act 2012. (or Section of the Indian Penal Code) or of.........................................Act.......................), and is sentenced to (state the punishment fully and distinctly) P.T.O. This is to authorize and require you to receive the said (Prisoner's name) A1. Hariprasad, S/o Raghuraj, A2. Gowramma W/o Hariprasad. A3. Bhavana, W/o Srinivas. A4. Sathish, S/o Kalaiah, into your custody in the said jail, together with this warrant, and thereby carry the aforesaid sentence into execution according to law.
Dated, this 31st day of May, 2018.
(M. LATHA KUMARI) LIII Addl.City Civil & Session Judge, Bangalore.
ORDER • Accused No.1 is ordered to undergo imprisonment for 10 years and pay fine of Rs.50,000/- for offence under Section 366(A) of IPC, in default of payment of fine, the accused No.1 shall undergo simple imprisonment for a period of one year. Further, accused No.1 is ordered to under go Rigorous imprisonment of 10 years and pay a fine of Rs.50,000/- For offence under Section 370 of IPC, in default of payment of fine, the accused No.1 47 Spl.C.C 295/15 shall undergo simple imprisonment for another one year. For offence under Section 373 of IPC this accused No.1 is ordered to under to imprisonment of 10 years, and pay a fine of Rs.50,000/-, in default of payment of fine, the accused No.1 shall undergo simple imprisonment for a period of one year, which shall run consecutively.
• In view of this order, no separate punishment are imposed for offences punishable under Section 370(A) of IPC and Under Section 3, 4 and 7 of I.T.P. Act and under Section 17 of POCSO Act 2012.
• The Accused 2 is ordered to undergo Rigorous imprisonment of 10 years and pay a fine of Rs.50,000/-, for the offence under Section 370 of IPC, in default of payment of fine, the accused No.2 shall undergo simple imprisonment for a period of one year. Accused No.2 is further ordered to undergo imprisonment of 10 years, and pay a fine of Rs.50,000/-, for offence punishable under Section 373 of IPC, in default of payment of fine, the accused No.2 shall undergo simple imprisonment for a period of one year, which shall run consecutively.
• In view of this order, no separate punishments are imposed for offences punishable under Section 370(A) of IPC and Under Section 3, 4 and 7 of I.T.P. Act and under Section 17 of POCSO Act 2012.
48 Spl.C.C 295/15 • The Accused 3 is ordered to undergo imprisonment for life and pay a fine of Rs.50,000/- for offences punishable under Section 9 of ITP Act, in default of payment of fine, the accused No.3 shall undergo simple imprisonment for a period of one year.
• In view of this order against accused No.3, no separate punishment are imposed for offences punishable under Section 370, 370(A) of IPC and Under Section 4, 5 and 7 of I.T.P. Act and Section 17 of POCSO Act 2012.
• Accused 4 is order to undergo imprisonment for five years and pay a fine of Rs.50,000/- for the offence punishable under Section 7 r/w 8 of POCSO Act 2012, in default of payment of fine amount, the accused No.4 shall undergo Simple Imprisonment of a period of one year.
• MO-1, 2, 3, 5 & 6 are ordered to be forfeited to state and MO-4 being worthless is ordered to be destroyed after appeal period is over and if appeal is filed, after disposal of appeal. • The entire fine amount is ordered to be paid to the victim CW-9/PW-1 as compensation under Section 357 of Cr.P.C.
• The Accused No.1 to 4 are entitled to set off under Section 428 of Cr.P.C.
49 Spl.C.C 295/15 • Bail bond of the accused persons stands cancelled.
• Free copy of this Judgment to be supplied to the accused persons.
(M. LATHA KUMARI) LIII Addl.City Civil & Sessions Judge, Bangalore.