Bangalore District Court
Unknown vs Prateek Rana on 23 April, 2019
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 23rd DAY OF APRIL, 2019
: PRESENT :
SMT.SARASWATI V.KOSANDAR, B.Com.,LL.M,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 19/2018
COMPLAINANT :
The State of Karnataka by
Mahadevapura Police Station,
Bangalore.
[Reptd by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
Prateek Rana,
S/o Poornachandra Rana,
Aged about 26 years,
R/at No.220, Swarna Silicon
Castle Apartment,
Basavanna Nagar Main Road,
2
Spl.C C.19/18
Hoodi, Bengaluru City.
[Reptd by Mr. RBN & Associates
advocate]
***
1. Date of Commission : 2.10.2017
Of Offence
2. Date of Report :
03.18.2017
Of Offence
3. Date of arrest of accused : 03.10.2017
4 Date of release on Bail 31.10.2017
5 Period undergone in
Judicial Custody
6 Name of the complainant : Jitendra Jain
7. Date of Commencement :
06.09.2018
of recording evidence
8. Date of Closing of :
14.02.2019
Evidence
9. Offences complained of : Sec.8 & 12 of POCSO Act,
2012.
10. Opinion of the Judge : Accused is found guilty
11 Order of the Court : As per final order
JUDGMENT
The Police Inspector, Mahadevapura P.S, Bangalore City has filed the charge sheet against the accused for 3 Spl.C C.19/18 offences punishable under Sections 8 & 12 of POCSO Act, 2012.
2. In brief, the case of the prosecution reads as under:
It is the case of the prosecution that CW2 - the victim girl aged about 13 years is the daughter of CW 1 & 3. That victim girl is residing with her parents, at Swarna Silicon Castle Minos Apartment, Hoodi, Basavannanagar, Bangalore. The accused is also residing in the same apartment. It is alleged that the accused knowing fully well that CW2 is a minor girl has committed sexual assault on her by pulling her inside the Apartment lift and hugged and smooched her two times in the month of September 2017. It is also alleged that on 2.10.2017 at about 8 pm when CW2 was at the basement of their apartment, accused forcibly pulled her inside the lift and hugged and also smooched her and thereby it is alleged that the accused has committed the offences punishable u/s 8 & 12 of POCSO Act.4
Spl.C C.19/18
3. The records shows that the father of victim girl lodged complaint on 03.10.2017 against the accused and on the basis of the said complaint the Investigating Officer registered a case against the accused in Crime No.522/2017 for the offences punishable u/s 8 & 12 of POCSO Act. Investigating Officer visited the spot of occurrence and drawn necessary mahazars, recorded statement of the prosecution witnesses. Accused was arrested. He was also sent to Bowring & Lady Curzon hospital for medical examination. After collecting necessary documents and by completing investigation the IO has submitted charge sheet against the accused for the offences punishable u/s 8 & 12 of POCSO Act, 2012.
4. The charge sheet was submitted before this court. Cognizance was taken and a case is registered in Special CC. Copy of the charge sheet was served on the accused in compliance with Section 207 of Cr.P.C
5. After hearing on both sides and perusing prosecution papers, my learned predecessor in the 5 Spl.C C.19/18 office has framed charge against the accused only for offence punishable under Section 8 of POCSO Act, 2012. The charge was read over and explained to the accused in English, the language known to him. Accused has pleaded not guilty and claimed to be tried. Therefore, the case was posted for evidence of the prosecution. At the time of arguments, this court heard the learned counsel for accused as well as the Learned Public Prosecutor regarding non framing of charge u/s 12 of POCSO Act wherein, the learned counsel for accused submitted that there are no any material to frame charge u/s 12 of POCSO Act and said argument has not been disputed by the Learned Public Prosecutor.
6. In order to prove the guilt of the accused, the prosecution has examined 8 witnesses as P.W.1 to P.W.8 and got marked 11 documents at Ex.P.1 to Ex.P.11. PW1 is the mahazar witness, PW2 is the complainant/father of victim, PW3 is the victim girl, PW4 is the ASI, who registered the case, PW6 is the PSI, who recorded the statement of victim girl and 6 Spl.C C.19/18 PW7 is the eyewitness. The order sheet shows that CW3 and CW6 to 11 are given up by the Learned Public Prosecutor and after examining the Investigating officers as PW5 & 8, prosecution side evidence was closed.
7. Thereafter, accused has been examined u/s 313 of Cr.P.C. Accused denied the entire incriminating circumstances appearing against him and filed his written submission and stated no defence evidence on his side.
8. Heard the arguments of learned Public Prosecutor for State and the learned counsel appearing for accused.
9. Now, the points that arise for my consideration are as under:
1. Whether the prosecution has proved beyond all reasonable doubt that in the month of September 2017, the accused hugged and smooched the CW2the minor victim girl,for two times in the lift at Swarna Silicon Castle Apartment situated at Hoodi Basavannanagar Main Road, Bengaluru and again on 2.10.2017 7 Spl.C C.19/18 at about 8 pm when CW2 was at the basement of their apartment accused again forcibly pulled her inside the above lift and hugged and also smooched her against her wish and will and thereby committed offence punishable under Section 7 & 8 of POCSO Act?
2. What order?
10. My findings on the above points are as under: Point No.1 : In the Affirmative Point No.2 : As per final orders for the following REASONS
11. Points No.1: It is the case of prosecution that, CW2 - the minor girl aged about 13 years is the daughter of CW1 and 3 and residing with her parents in Swarna Silicon Castle Menos Apartment situated at Hoodi, Basavannanagara, Main Road, Bengaluru. That the accused Prateek Rana, aged 26 years was also residing in the said apartment. It is alleged that during the year 2017 in the month of September, the accused knowing fully well that CW2 the victim girl is minor, 8 Spl.C C.19/18 had forcibly pulled her inside the lift in the above Apartment, hugged and smooched her by closing the lift door for two times. It is also the further case of the prosecution that on 02102017 at 800 pm when the victim girl was in the basement of the apartment near the lift, the accused had again taken her inside lift by holding her hands tightly, closed the lift door, touched her body, hugged and smooched her against her wish and therefore she informed the same to her parents and on 3.10.2017 the father of victim girl lodged complaint against the accused.
12. PW4 A.Lakshman, A.S.I received the complaint and registered the case in Cr.No.522/2017 and handed over investigation to PW5 Police Inspector. On the same day accused was arrested and produced before PW5. Accused was subjected to interrogation. Thereafter he was sent to Bowering hospital for medical examination and then he was produced before the court. On 04102017 PW5 visited the spot and conducted spot mahazar as per Ex.P.1. On the same day he got recorded the statement of victim girl 9 Spl.C C.19/18 through women PSI Smt. Prasheela. The parents of victim girl have not consented for medical examination of victim girl, however I.O has reported the incident to Women and Child Welfare Department, Special branch at Bowering hospital wherein the statement of victim girl has been recorded by the counselor as per Ex.P.4. I.O got recorded 164 statement of victim girl before the learned Magistrate, obtained date of birth certificate from Sri.Chaithanya Techno School and on his transfer handed over file to PW8 who in turn verified the file and material on record and filed charge sheet against the accused alleging commission of offence of sexual assault on the minor girl punishable u/s 7 & 8 of POCSO Act.
13. In order to prove the offence u/s 7 of POCSO Act, the prosecution has to establish the following ingredients.
i. Touching of any part of body of child.
ii. Such act on the part of accused with sexual intent.
iii. Such physical contact must be without penetration.
10Spl.C C.19/18
14. In this case it is alleged that accused has committed sexual assault on CW2 knowing fully well that she is minor aged about 13 years, therefore first it has to be find out whether the victim girl was minor as on the date of alleged incident. In order to prove the age, the prosecution has relied upon complaint marked at Ex.P.2 and date of birth certificate marked at Ex.P.5 issued by Principal, Sri Chaithanya Techno School, K.R.Puram, Bangalore. According to this certificate the date of birth of victim is 10092004. It is relevant to note here that, this certificate is marked as per Ex.P5 with consent by the accused side. In the complaint the age of the victim is mentioned as 13 years. Since the date of birth certificate of victim issued by school is not disputed by the accused and since said document is marked with consent by accused side, there is no difficulty to arrive at a conclusion that CW2 was minor at the time of alleged incident.
15. Now let me consider the oral evidence adduced by the prosecution to prove the offence. As noted 11 Spl.C C.19/18 above in this case it is the definite case of prosecution that, the accused herein during the month of September 2017 has hugged and smooched victim girl for 2 times by touching her in the Apartment lift and again on 02102017 he forcibly took the victim girl in the lift, touched her body and smooched her and during that time, lift reached the basement and when it was opened the watchman saw them and accused left the lift and went away. In order to prove the same the prosecution has examined the victim girl as PW3 and the security who witnessed the alleged incident as PW7. PW7 Ramu Reddy who was the Security in Swarna Castle Apartment, in his evidence, has deposed that during the year 201617 he was working as security in Swarna Silicon Castle Apartment and he knows the complainant, victim girl as well as accused. However he has stated that he has not given any statement against the accused and thereby he has turned hostile to the prosecution case. During cross examination by the Learned Public Prosecutor he has denied that he has given statement before police as per Ex.P11 by stating that he had seen the accused herein 12 Spl.C C.19/18 moving with victim girl in the apartment lift and on 2.10.2017, at 8 pm accused had smooched the victim girl and harassed her sexually and thereby he has failed to support the case of the prosecution.
16. The prosecution has examined the victim girl as PW3 and father of victim girl as PW2. It is relevant to note that, at the first instance the prosecution has examined the Manager of Swarna Silicon Castle Minos Apartment who is cited as CW5 in the charge sheet, as PW1. In his evidence PW1 has stated that he has worked as manager in Swarna Silicon Castle Minos apartment from March 2017 to February 2018. He has stated that on 04102017 police had visited the apartment and drawn mahazar as per Ex.P.1 near lift in the said apartment and he has signed in it. He got marked his signature as per Ex.P.1(a). He stated that the police had prepared Ex.P.1 mahazar near lift in the above Apartment in the background of sexual assault on the victim girl by the accused herein. During cross examination he admitted that the police had not given him any written notice 13 Spl.C C.19/18 and he do not know the name of police who had written the mahazar. He states that he has not seen the accused committing sexual assault on the victim girl personally. However denied that he was not present at the spot during mahazar proceedings and has signed in Ex.P.1 in the police station.
17. The father of the victim girl PW2, in his evidence has deposed that on 02102017 when he was coming back to his house, his wife had called him and stated that, the apartment security had called her and informed that somebody had committed sexual assault on the victim girl. When he reached the house, his daughter was playing in the basement. When he was thinking of meeting the security his daughter came to his room and started crying and said that she want to tell something to him and further stated that from last 3 months one boy is harassing her. When he asked her specifically, she said that from many days she wanted to tell something to him, but it was not possible as she thought that he will scold her. When he made her to sit and embraced her, she said that a 14 Spl.C C.19/18 person by name Prateek Rana resident of flat No.220 in the same apartment is sexually harassing her. He states that, his daughter also informed him that on 02102017 when she was skipping with her friends the accused had called her from 2 nd floor and kissed her by holding her hands. When she resisted he informed her that it has happened in flow. He has also done the same thing with her for 2 to 3 times. When his daughter informed these things to him he re collected that the victim girl was dull for about 1 month because of these incidents. When he enquired with the victim girl as to how she came in contact with the accused, she stated that during summer holidays when she was cycling with her friends, the accused came and got created acquaintance with her. In the month of September, also he met her and behaved indecently. After coming to know of all these things he went to security and enquired about the incident. At that time the security also informed him that he had seen the accused taking the victim girl in the lift from bottom to top and top to bottom and also observed him roaming behind her. When he asked about the 15 Spl.C C.19/18 accused, the security informed him that accused is working in night shift and he will be available in the morning. Therefore on the next day morning he took leave and approached the apartment builder and informed him about the incident. On the same day in the after noon he went to police station and lodged complaint against the accused. He got marked complaint lodged by him as per Ex.P.2 and his signature as Ex.P.2(a). He also stated that thereafter police summoned the accused and enquired him. The accused admitted the guilt before the police. Thereafter the police also enquired the victim and she informed about the incident that took place in the lift. Thereafter police visited the apartment and enquired with CW4 and CW5. At that time, CW5, was the security in the apartment, he also stated that the police prepared mahazar as per Ex.P1, near the lift and took his signature.
18. During crossexamination PW2 admitted that his flat is in fourth floor and the accused was in 2 nd floor. There are two lifts, one in front portion and 16 Spl.C C.19/18 another is at backside. He denied that they are using only front side lift and pleads ignorance that accused was using back side lift only. He denied that victim girl used to wish the accused whenever he was in his balcony. He also denied that his daughter used to wish the accused whenever he used to go out and both of them used to meet and talk with each other in the ground floor. He pleads ignorance that victim girl had voluntarily introduced with the accused. He pleads ignorance that the accused is B.E. graduate. But denied that his daughter used to get clarification from the accused for some doubt in her subjects. He denied that accused used to treat victim girl as his sister.
19. PW2 denied the suggestion that the accused had given the complaint against CW4 regarding missing of shoes kept near his flat and in that respect CW5 had taken action against CW4 and due to which CW4 had illwill against the accused and created a scene when he saw the accused and victim girl in the lift. He denied that CW4 has informed a created story to his wife by making false allegation against the accused.
17Spl.C C.19/18 The witness volunteers that he has lodged the complaint against the accused after enquiring with the victim girl. He denied that on 2.10.2017, the victim girl had called the accused inside the lift. He admitted that there are security persons to both the lifts. He admitted that now CW4 is not working as security in their apartment. He denied that when CW4 created a scene, he has lodged a false complaint in order to avoid bad impression on his daughter from the inmates of the apartment. But, he states that he has lodged complaint against the accused to avoid such sexual assault on other children.
20. The victim girl who is examined as PW3, in her evidence has stated that CW1 is her father and CW3 is her mother. She knows the accused. During 2017, summer vacation she used to go for playing and at that time, accused generally used to see her. One day, when she was doing cycling in her apartment basement, accused had wished her "Hi". In turn, she also wished him by saying "Hello" After few days, accused asked her name, since she was not knowing 18 Spl.C C.19/18 him she did not disclose her name to him. When accused asked her age, she also asked his age. When, she was cycling accused asked her as to whether they can go out for a walk and she said no. As usual when she had gone for cycling accused used to wish her and one day, he helped her to take her cycle till II floor as she was unable to take cycle by herself. During September 2017, when she was returning from her friend's house accused was standing in his balcony and made some gesture through his fingers. She was unable to understand what he was saying then accused called her to his floor. Accused told that let us not talk here, as somebody will see them and let us go to lift and talk there. Accused told her that he is leaving on 15th October, when she asked why, he did not say anything, but suddenly hugged her and smooched her. When, his floor came he left her.
21. PW3 further deposed that on the next day again, when she was doing cycling accused came and said sorry and she said it is OK. Next day, her mother had left her near Apartment frontlift and she was 19 Spl.C C.19/18 waiting for the lift. When she entered the lift accused also entered the lift and again smooched her. On the next day, when she was with her friends, accused came out to his balcony and called her. She went to his floor and then accused said that they can talk in lift as there are some persons who are keeping eye on them. She said I can not do anything. Again in the lift, accused smooched her and during that time, lift reached the basement and when it was opened the watchman saw them and accused just left the lift and went away. Since, she did not like it and as she was not comfortable with the actions of the accused, she went and informed the same to her father. Later, her father informed the same to the police.
22. PW3 has also stated that on 3.11.2017, she has given statement before the Judge and got marked the 164 statement as per Ex.P3 and her signature therein as per Ex.P3(a). She also stated that on 4.11.2017, she has given her statement before the police. The police had taken her to Government hospital and in the hospital, during her check up she 20 Spl.C C.19/18 has informed the doctors regarding whatever happened to her. She has also got marked the statement recorded by the concerned authority in the hospital as per Ex.P4 and identified her signature therein marked at Ex.P4(a).
23. During crossexamination PW3, has admitted that their flat is situated in fourth floor and the accused flat is at second floor, but denied that their house is visible from the balcony of accused flat. But, she can see accused flat from the other corner corridor of the fourth floor. She denied that whenever accused used to come to his balcony she used to wish him by saying "Hi". She denied that she used to wish the accused even from the playground. She volunteers that first accused used to wish her "Hi" and she used to reply him. She has denied that she used to go to second floor and roam there and stated that she used to go there whenever accused used to call her not otherwise. She denied that whenever accused used to go out she used to ask him where he is going and when he is coming back. She stated that herself and 21 Spl.C C.19/18 accused used to talk each other whenever they used to meet in playground, but denied that accused used to advise her to study well for board exams and she used to discuss with accused about her subjects. However, she admitted that while giving statement before the Magistrate as per Ex.P3 she has stated that accused advised her to focus on her studies by saying that she was younger to him and made her to think that he was a good person.
24. For a suggestion that whenever, they meet each other, accused used to treat her cordially like his sister, PW3 has replied that first accused used to act like that but, later he did all mischief with her. She denied that accused did not take her inside the lift at all. But, she has admitted that on that day, accused did not forced her to enter the lift. But, accused called her and she went inside the lift. At that time, accused and herself were going up and down in the lift and when his floor was about to come he smooched her and went way. She states that she did not inform about the same to her parents or friends as she was scared.
22Spl.C C.19/18 She denied that as no such incident taken place, she has not informed her parents. She states that on the next day accused asked her sorry. She states that on 1.10.2017, when she was waiting near the front lift, accused came outside and both of them went together in the first lift and even at that time, he smooched her. She has stated that it was second time, the accused did like this and when he did the same for 3 rd time on 2.10.2017, she informed her father. She do not know whether she informed her father before watchman informed her mother. She states that as soon as she went home she informed her father. She do not know about watchman informing her mother, but she informed her father as soon as she entered home. She denied that on 2.10.2017, she only called accused near lift to inquire him about when he is leaving the flat. But, she has admitted that at that time, lift was in second floor and from there it reached ground floor. She denied that in the lift accused and herself were talking to each other and accused did not do anything to her. She states that accused smooched her. She states that in the ground floor, when lift door 23 Spl.C C.19/18 opened she saw the watchman. When watchman saw them, accused was standing in the center of the lift and she was in different corner. Security did not tell anything to her or accused when the lift opened, and accused ran away and she was only available in lift. She did not talk to watchman and just went home.
25. She has denied that the accused had once informed her that the watchman is having enmity against him, but states that accused had informed her that some people are keeping eye on them and may be it is the manager of their apartment. However, she is not aware about the theft of cycle and shoes of accused friend and the complaint made by accused to the Manager and also about the action taken by Manager against the watchman. She states that she do not know about any enmity between the accused and watchman and about watch man creating scene in the apartment even though no incident occurred as alleged against the accused and states that she has informed her father about the incident. She denied that based on the false information of watchman her 24 Spl.C C.19/18 father has lodged false complaint against the accused. She has denied that if accused misbehaved with her she would have avoided him. She has denied that the accused never misbehaved with her and she is deposing falsely against him at the instance of her parents.
26. PW4 A Lakshman is the ASI who has registered the case upon receipt of complaint, from PW2. In his evidence, PW4 has deposed that on 3.10.2017, after receipt of Ex.P2, complaint, he registered the case and submitted FIR as per Ex.P7. He got marked his signature in the FIR as Ex.P7(a). His evidence is not seriously challenged, but it is elicited that in FIR marked at Ex.P7 no reasons are mentioned in column No.3(c) regarding delay in lodging the complaint. However, he states that the complainant informed that he lodged complaint after waiting for a day.
27. PW5 V. Ramachandrappa is Police Inspector, who has conducted the investigation partly. In his evidence, PW5 has deposed that on 03.10.2017, after receiving the file from PW4, he started the 25 Spl.C C.19/18 investigation and appointed the staff for search of the accused. On the same day, CW10 and 11 apprehended the accused and produced the accused before him. He enquired the accused and recorded the statement of CW10 and 11. On 4.10.2017, he visited the spot and prepared spot mahazar as per Ex.P1 in the place shown by PW1 in the presence of mahazar witnesses. He got marked his signature in the Ex.P1 mahazar as per Ex.P1(c). On the same day, he requested CW13, PSI to record the statement of victim girl and accordingly CW13 Woman PSI recorded the statement of victim girl and produced the same before him. Thereafter he subjected the accused for medical examination and obtained medical report pertaining to him marked at Ex.P6. He states that since the parents of the victim girl did not intend to subject the victim girl to medical examination, same was not done. He reported the incident to CW6 and on 5.10.2017, he has recorded the statement of parents of the victim girl. Later on 6.10.2017, he obtained the age proof certificate pertaining to victim girl marked at Ex.P5. Thereafter he send the requisition to the court to 26 Spl.C C.19/18 obtain the 164 statement of the victim girl and received the 164 statement of the victim girl from the court on 3.11.2017. Later, since he was transferred he handed over the file to CW15.
28. This witness has been thoroughly cross examined by the learned counsel for accused. During crossexamination of this witness, it is elicited that he has not recorded the statements of the inmates of the apartment. However, he states that he has enquired the watchman, who has stated about the watching of incident. PW5 has admitted that in Ex.P7 and 11, they have mentioned a word as sexual assault. He states that since, the case is registered in respect of sexual assault they have mentioned said word in the statements. He denied that Ex.P7 and8 have been prepared and created for the purpose of this case against the facts of the case. He denied that the word hugging and kissing have not been used by the complainant or victim girl and he has inserted used them in the statements. He denied that accused do 27 Spl.C C.19/18 not understand the Kannada language and his voluntary statement has been created by him
29. PW6 Smt. Prasheela PSI has recorded the statement of victim girl. In her evidence, PW6 has deposed that on 4.10.2017, on the requisition of PW5 Police Inspector she has recorded the statement of victim girl as per Ex.P9. She got marked her signature in the said statement as per Ex.P9(a). She has deposed that the victim girl stated before her that the accused by name Pratheek Rana aged about 26 years resident of her apartment had hugged, touched her body and kissed her and thereby harassed her sexually. During crossexamination PW6 has admitted that the victim girl does not know the Kannada language and when she visited Mahadevapura Police Station no translator was summoned. However,she states that she knows the English language and she has recorded the statement of the victim by talking with her in English. However,she denied that since victim girl does not know Kannada language, she has created Ex.P9 as per 28 Spl.C C.19/18 the say of I.O. She denied that victim girl has not given any statement before her.
30. PW8 Srinivas T is the Police Inspector, who has completed the investigation and filed the charge sheet before the court. In his evidence, PW8 has stated that after receiving the file for further investigation, he included the 164 statement of victim girl to the file and after verifying all the documents, filed charge sheet before the court. During cross examination he has admitted that he has not sent victim girl to court for recording 164 statement. He has not recorded the statement of any witnesses, but denied that without verifying the file he has filed false charge sheet against the accused.
31. The Learned Public Prosecutor in his arguments, submitted that the victim and her father have supported the prosecution case and the evidence given by the prosecution witnesses establishes the truth of the case. The act of accused in taking the girl in the lift and smooched her repeatedly shows that the accused has committed said act with an intention to 29 Spl.C C.19/18 commit sexual assault on the minor victim girl and therefore, prayed to convict him.
32. On the other hand, the learned counsel for accused argued that there is a delay of more than 24 hours in filing the complaint. The police official i.e., ASI who has registered the above case against the accused admits that there is no explanation for delay in lodging the complaint. Though according to prosecution witnesses the alleged incident have taken place in the month of September, there was no complaint. PW3 the victim girl has made many improvements while giving her evidence before the court. There are many discrepancies in her statement recorded by the learned Magistrate with that of the evidence given by her before the court. If really, the alleged incident had taken place, the victim should not have gone to him as it is quite natural that children will not go to such persons. According to prosecution CW1 lodged complaint based on the information given by his wife and wife had given information based on the information given by security guard. But, security 30 Spl.C C.19/18 guard has not supported the said version of prosecution. No dates or timings are referred in respect of alleged acts. If the victim girl was scared about the accused she would not have gone to accused after alleged first or second incident. PW2 is the hear say witness and only on the basis of evidence of the victim girl, accused cannot be convicted. On entire perusal of prosecution material there is nothing to attract the provisions of Sec.7 & 8 of POCSO Act and accordingly prayed to release the accused on bail.
33. Sec. 7 of POCSO Act provides that touching of any sensitive parts of child with sexual intent or making the child to do so amounts to sexual assault. Further, the section explicitly provides that doing of any other act with sexual intent which involves physical contact without penetration amounts to sexual assault. Section. 29 of the POCSO Act contains legislative mandate wherein the court shall presume commission of offences by the accused unless, the contrary is proved. Section 29 provides that when a person is prosecuted for committing an offence u/s 7 31 Spl.C C.19/18 of the Act, the court shall presume that such person has committed the offence unless the contrary is proved. It is well established principle of law that the court must take care not to apply this presumption without adverting to essential facts as the same would result in injustice. The statutory presumption would get attracted only if the prosecution proves the essential basic facts. If the accused is able to create serious doubt on the veracity of the prosecution case, or the accused bring on record materials which would render the prosecution version, highly improbable, the presumption would get weakened.
34. It is relevant to note here, that the POCSO Act, 2012 is a legislation to prevent sexual abuse and exploitation of the children. The scheme of this legislation immensely emphasis the dignity of the children. By keeping in mind the same, let me see whether in this case the prosecution has established the essential facts so as to level charge against the accused u/s 7 of POCSO Act.
32Spl.C C.19/18
35. In this case it is not in dispute that the accused and victim were residing in same apartment and used to talk with each other. According to accused he used to treat the victim girl as his sister, whereas according to prosecution the accused by taking advantage of minority of the victim girl has committed sexual assault on her. As discussed above, the offence of sexual assault requires that the accused must have committed some act against the victim with sexual intent. In this case, the prosecution in order to prove the same has examined the victim as PW3 and her father who is a complainant as PW2. As noted above, in their respective evidence both PW2 and 3 have deposed that the accused took the victim girl in the lift and smooched her. They have deposed about the repetition of the same thing by the accused for three times. No doubt PW2 is a hearsay witness and PW3 is child witness, looking to the entire evidence of these two witnesses along with other evidence on record and the fact that accused has repeatedly done the same act, it can be presumed that there was sexual intent on the part of accused. As provided under section 8 of Indian 33 Spl.C C.19/18 Evidence Act, intent or motive is an impelling power behind the act concerned and it cannot be directly proved. It can be established only by the peculiar circumstances of the case.
36. It is the defence of the accused herein that himself and victim used to talk with each other in the presence of her friends and residents of Apartment and he used to tell her to study heard, he treated her like his sister as she is aged 15 years old and at no point of time he misbehaved with her. It is the specific defence of the accused that security guard created some scene on 2nd October 2017 as the victim girl shouted on him, and the parents of the victim girl misunderstood him and lodged complaint after lapse of 25 hours. The learned counsel for accused also submits that IO has filed charge sheet against the accused alleging sexual assault without there being any such material against the accused and there is inordinate delay in lodging the complaint and therefore benefit should go to accused.
34Spl.C C.19/18
37. It is relevant to note here that in a decision reported in 2000 SCC (Cri) 989 between State of Rajasthan Vs. NK the Hon'be Supreme Court while dealing with the delay in lodging the first information report has held that a mere delay in lodging the first information report cannot be a ground by itself for throwing the entire prosecution case overboard. The court has to seek an explanation for delay and test the truthfulness and plausibility of the reason assigned. If the delay is explained to the satisfaction of the court, it cannot be counted against the prosecution.
38. In this case, the incident is said to have taken place at 8 pm on 2.10.2017 and complaint has been lodged on 3.10.2017 at 21.50 hours. PW2 the complainant in his evidence has stated that on 2.10.2017 after his duty, when he was returning home, his wife informed him about the incident and after coming to house when he was thinking to meet security guard, the victim girl herself informed him about the incident and thereafter, he enquired about the same with security who also informed him about 35 Spl.C C.19/18 the conduct of the accused and also informed that the accused will be available on the next day morning. Therefore, on the next day, he applied for leave and met apartment builder and thereafter went to police station and lodged the complaint. PW3 also in her evidence has stated that after the first incident, the accused had asked sorry and she was also scared to inform it to her parents and when the accused did the same thing for third time, she informed the same to her father. These explanations deposed by both PW2 and 3 during the examination and crossexamination are material explanations in respect of delay in lodging the complaint and there is nothing to disbelieve the same. Therefore, in my view the delay if any in lodging the complaint is not fatal to the case of prosecution.
39. The learned counsel for accused pointed out certain discrepancies and improvements in the evidence of victim girl and submitted that no conviction can be based on such evidence. It is true that PW3 is aged 14 years at the time of giving her 36 Spl.C C.19/18 evidence and therefore, her evidence has to be scrutinized very carefully. I am aware that the child can be tutored and hence court will have to find out whether she is a tutored witness or speaking the truth. As pointed out by the learned counsel for accused in her 164 statement marked at Ex.P3 the victim girl has stated that accused used to advise her to focus on her studies which made her to think that he was a good person, but she has also stated that while they were speaking and going in the lift accused kissed her. In her statement marked at Ex.P4 also she states that accused had only hugged and kissed her. In her evidence recorded before the court, she has stated about all the 3 instances and specifically stated that accused had hugged and smooched her. No doubt, there are certain minor discrepancies and improvements in the evidence of PW3 with that of her statements marked at Ex.P3 and 4, however this witness being a very young, the court cannot expect that the witness should speak verbatim as mentioned in complaint or in her 164 statement recorded by the learned Magistrate. On the overall scrutiny of her 37 Spl.C C.19/18 evidence and after her crossexamination it is clear that she has withstood the crossexamination and nothing is brought out to show that she has been tutored witness or that she is speaking false before the court.
40. As noted above the accused has taken a specific stand that the security guard created some scene and on the basis of false information given by him the father of the victim girl lodged a false complaint against him. During crossexamination suggestions are also made to PW2 and 3 that the security guard had some vengeance against the accused as action was taken against him based on the complaint given by this accused. However, except making suggestions during the crossexamination, the accused has not placed any iota of material to accept the said contention. Absolutely nothing has been placed to show that there was any previous enmity or illwill between the accused and security guard and based on the same a false complaint has been lodged against the accused.
38Spl.C C.19/18
41. It is settled law that in the cases of this nature, the victim's testimony can be believed without corroboration. Her testimony has to be appreciated on the principles of probabilities. In the instant case, the victim is a minor girl aged about 14 years and her testimony given before the court is corroborated with the evidence of the complainant and other evidences on record. As noted above, u/Sec. 29 of POCSO Act the court shall presume guilt of the accused once the essential facts are established by the prosecution. Once,the prosecution establishes the essential facts, the owns shifts to the accused to rebut this presumption. In the instant case, to rebut the presumption and to prove that he had no guilty state of mind the accused has made unsuccessful attempt during crossexamination of victim girl and her father, by making a suggestion that he used to treat victim as his sister. However, said suggestion is rejected by both the witnesses and the victim girl has gone a step ahead and deposed that initially the accused used to treat her so, but later he behaved otherwise and indecently. The accused has failed to brought on record any patent 39 Spl.C C.19/18 or inherent infirmities or improbabilities in the prosecution version it may lead to an irresistible inference of falsehood in the prosecution case. If the evidence of victim does not suffer from any basic infirmities and the probabilities factor does not render it unworthy of credence, as a general rule there is no reason to insist on corroboration, except medical evidence. The facts of the present case are such that it is highly unreasonable to insist for corroboration in the form of medical evidence. The act of smooch, touch, etc without penetration for fairly long time in the past cannot be expected to be found through medical evidence. Hence, requiring corroboration is not a prudent idea in the cases of this type.
42. It is a well established principle that in cases of sexual assault, the sole testimony of victim is sufficient to convict the accused. This is for the reason that the sexual offeneces are committed mostly when the victim alone is present. Hence, it is unreasonable to expect any other direct witnesses to account for the happening of acts like sexual assault. In the instant 40 Spl.C C.19/18 case, only the victim girl has spoken directly about the alleged act of the accused. Rest are circumstantial or official witnesses who cannot be expected to give direct account of the sexual assault. However, the versions of victim girl being supported by the complainant's deposition is sufficient to inspire the court to proceed with the conviction. Even though, the prosecution witnesses have not deposed regarding exact date and timings of the previous acts of the accused, same is not fatal to the prosecution case. Further, even though PW3 has admitted that accused had not forced her to enter it, but she states that she went inside the lift whenever accused called her and said version has not been disproved by the accused. Hence, looking to the entire evidence on record, I am of the considered opinion that there are no serious lacuna or latches which can cut the very root of the prosecution case, and evidence of PW1 to 6 and 8 clearly establishes the guilt of the accused beyond all reasonable doubt. The entire evidence on record, shows the involvement of accused in the commission of offence as alleged. For all the reasons stated above, 41 Spl.C C.19/18 I am of the opinion that the prosecution has proved its case beyond all reasonable doubt. Accordingly, I answer point No. 1 in the affirmative.
43. Point No.2: From the above discussions and findings on the above point No.1 in the affirmative, I hold that the accused is found guilty of the offnence punishable u/s 8 of POCSO Act and hence he is liable to be convicted for the same. In the result,I pass the following, ORDER Acting under Section 235(2) of Cr.P.C. accused is hereby convicted for the offence punishable u/S 8 of POCSO Act, 2012.
To hear regarding quantum of sentence.
(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 23rd day of April, 2019.) (SARASWATI V.KOSANDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
42Spl.C C.19/18 ORDER ON SENTENCE Heard accused and learned Public Prosecutor regarding the sentence. The learned counsel for accused submitted that accused is aged about 26 years and there are no criminal antecedents against the accused. Accused is married, therefore, if he is sentenced to imprisonment his family will be put to much hardship and accordingly prays for lenient view and lesser punishment.
2. The learned Public Prosecutor has submitted that the accused having committed serious offence against minor girl aged about 13 years, should be given maximum sentence as provided u/s 8 of POCSO Act, 2012.
3. I have given my anxious consideration to the submission made by either side. In this case, accused is aged about 26 years and the prosecution has not shown any material to show that he has got any criminal antecedents. However, in the present case, the accused has been convicted for commission of sexual assault on a minor girl punishable u/s 8 of POCSO Act, 2012. The punishment prescribed u/s 8 of POCSO Act is R.I for not less than 3 years, which may extent to 5 years and also liable for fine. Since, the legislatures have introduced and enacted the POCSO Act to protect the interest of the 43 Spl.C C.19/18 minors, it is not necessary to show leniency or to award lesser sentence than the prescribed sentence under the Act. Hence, considering the facts and circumstances, the age and family background of the accused and since accused is not previously convicted by any courts of law, I proceed to pass the following ORDER Acting under Section 235(2) of Cr.P.C. accused is hereby convicted for the offence punishable under Section 8 of Prevention of Children from Sexual Offences Act 2012 and sentenced to undergo R.I. for a period of 3 years and he shall also pay fine of 60,000/, in case of default to pay the fine amount, he shall undergo Simple Imprisonment of another 3 months, of which shall run consecutively.
The records shows that the accused has already deposited Rs.50,000/ in the name of victim as interim compensation and same is treated as part of this fine amount. After the deposit of remaining fine amount of Rs.10,000/ by the accused, the sum of Rs.5,000/ and the amount of Rs.50,000/ already deposited in the name of victim girl shall be paid to her as compensation and remaining 44 Spl.C C.19/18 fine amount of Rs.5,000/ shall be confiscated to the State.
The benefit of set off shall be extended to accused as provided u/s 428 of Cr.P.C.
Bail bond of the accused stands canceled.
Free copy of this Judgment to be supplied to the accused.
(SARASWATI V.KOSANDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
*** ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Guruprasad PW.2 Jitendra Kumar Jain PW.3 Victim girl PW.4 A Lakshman PW.5 V. Ramachandrappa 45 Spl.C C.19/18 PW.6 Prasheela PW.7 Ramu Reddy PW.8 Srinivas T LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Mahazar Ex.P1(a) Signature of PW1 Ex.P2 Complaint Ex.P2(a) Signature of PW2 Ex.P3 164 statement of victim girl Ex.P3(a) Signature of victim girl Ex.P4 Statement of victim before C.W.C Ex.P4(a) Signature of victim girl Ex.P5 Study certificate Ex.P6 Medical report of accused Ex.P7 FIR Ex.P7(a) Signature of PW4 Ex.P8 Statement of CW10 Ex.P9 Statement of victim girl Ex.P10 Requisition of IO Ex.P11 Statement of CW4 LIST OF MATERIAL OBJECTS MARKED NIL 46 Spl.C C.19/18 LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE NIL LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE NIL (SARASWATI V.KOSANDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
*** 47 Spl.C C.19/18 23.4.2019 Judgment pronounced in the open court, operative portion of which reads as under: ORDER Acting under Section 235(2) of Cr.P.C. accused is hereby convicted for the offence punishable u/S 8 of POCSO Act, 2012.
To hear regarding quantum of sentence.
(SARASWATI V.KOSANDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
48Spl.C C.19/18 Orders on Sentence pronounced in the open court, operative portion of which reads as under: ORDER ON SENTENCE Heard accused and learned Public Prosecutor regarding the sentence. The learned counsel for accused submitted that accused is aged about 26 years and there are no criminal antecedents against the accused. Accused is married, therefore, if he is sentenced to imprisonment his family will be put to much hardship and accordingly prays for lenient view and lesser punishment.
2. The learned Public Prosecutor has submitted that the accused having committed serious offence against minor girl aged about 13 years, should be given maximum sentence as provided u/s 8 of POCSO Act, 2012.
3. I have given my anxious consideration to the submission made by either side. In this case, accused is aged about 26 years and the prosecution has not shown any material to show that he has got any criminal antecedents. However, in the present case, the accused has been convicted for commission of sexual assault on a 49 Spl.C C.19/18 minor girl punishable u/s 8 of POCSO Act, 2012. The punishment prescribed u/s 8 of POCSO Act is R.I for not less than 3 years, which may extent to 5 years and also liable for fine. Since, the legislatures have introduced and enacted the POCSO Act to protect the interest of the minors, it is not necessary to show leniency or to award less sentence than the prescribed sentence under the Act. Hence, considering the facts and circumstances, the age and family background of the accused and since accused is not previously convicted by any courts of law, I proceed to pass the following ORDER Acting under Section 235(2) of Cr.P.C. accused is hereby convicted for the offence punishable under Section 8 of Prevention of Children from Sexual Offences Act 2012 and sentenced to undergo R.I. for a period of 3 years and he shall also pay fine of 60,000/, in case of default to pay the fine amount, he shall undergo Simple Imprisonment of another 3 months, of which shall run consecutively.
The records shows that the accused has already deposited Rs.50,000/ in the name of victim as interim compensation and same is treated as 50 Spl.C C.19/18 part of this fine amount. After the deposit of remaining fine amount of Rs.10,000/ by the accused, the sum of Rs.5,000/ and the amount of Rs.50,000/ already deposited in the name of victim girl shall be paid to her as compensation and remaining fine amount of Rs.5,000/ shall be confiscated to the State.
The benefit of set off shall be extended to accused as provided u/s 428 of Cr.P.C.
Bail bond of the accused stands canceled.
Free copy of this Judgment to be supplied to the accused.
(SARASWATI V.KOSANDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
The counsel for accused filed application u/s 389(3) of Cr.P.C seeking an order to suspend the order of sentence passed by this court.
The copy of the application is served on the Learned Public Prosecutor.
51Spl.C C.19/18 Heard on application and perused the contents of application. Looking to the submissions made and grounds urged I proceed to pass the following, ORDER Application filed u/s 389(3) of Cr.P.C is allowed.
The order of sentence is suspended till appeal period is over with a condition to deposit fine amount and furnish surety.
The accused is released on execution of personal bond for a sum of Rs.1,00,000/ with one surety for like sum.
The counsel for accused filed surety affidavit along with enclosures.
Surety by name Neha Rana w/o Pratheek Rana, aged about 25 years resident of No.5, II floor, II Cross, Bommanahali, Hosur Road, Bangalore is present and produced letter of appointment, salary slip, copies of ID card and Aadhar card.
Heard the surety and perused the
documents furnished by her. Said
surety is accepted.
Office to take bond accordingly.
(SARASWATI V.KOSANDAR)
LIII Addl.City Civil & Sessions Judge, Bangalore.
52 Spl.C C.19/18