Bangalore District Court
State By Kengeri Police vs Ravi @ Ravikumar on 7 January, 2017
IN THE COURT OF THE LIV ADDL., CITY CIVIL & SESSIONS
JUDGE AT BANGALORE CITY (CCH-55)
Dated this the 7th day of January 2017.
Present: SMT.RAJESHWARI.N.HEGDE, B.COM.LL.B[SPL.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE,
BANGLORE CITY
Spl.C.C.No.504/2014
COMPLAINANT State by Kengeri Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED Ravi @ Ravikumar,
Son of Mariyaiah @ Bangimariyaiah,
Aged 28 years,
Residing at Kudluru Grama,
Near Water Tank, Maluru Hobli,
Channapatna Taluk,
Ramanagara District.
(By Sri.Vijay Raj Urs-Advocate)
1. Date of commission of 20.6.2014
offence
2. Date of report of occurrence 22.06.2014
3. Date of arrest of accused 25.06.2014
4. Date of release of accused 07.11.2014
[bail]
5. Period undergone in custody 4 Months and 12 days
by the accused
2 Spl CC No.504/2014
6. Date of commencement of 9.10.2015
evidence
7. Date of closing of evidence 18.11.2016
8. Name of the complainant Smt.Rathnamma
9. Offences complained of Secs. 366, 343 and 506 of IPC and
under Secs. 11(iv)(v)(vi) of POCSO
Act, 2012
10. Opinion of the Judge The accused is found
guilty of the offences punishable
under Secs.366 and 343 of IPC.
The accused is acquitted
of the offences punishable under
Sec.506 of IPC and under
Sec.12 of POCSO Act, 2012.
The accused is sentenced to
undergo Simple Imprisonment
for a period of 4 Months
12 Days [i.e., period already
spent by him in judicial custody]
and he shall be liable to pay
fine of Rs.1,000/- for the offence
punishable under Sec.366 of
IPC. In default to pay fine of
Rs.1,000/-, he shall undergo
further Simple Imprisonment
for a period of 2 Months.
Further, the accused is
sentenced to pay a fine of
Rs.1,000/- for the offence
punishable under Sec.343 of
IPC. In default to pay fine of
Rs.1,000/-, he shall undergo
Simple Imprisonment for a
period of 2 Months.
3 Spl CC No.504/2014
The sentence in default of
payment of fine amount shall run
consecutively.
JUDGMENT
Police Inspector, Kengeri Police Station, Bangalore has submitted charge sheet in Crime No.171/2014 against the accused for the offences punishable under Secs. 366, 343 and 506 of IPC and under Sec. 11(iv),(v),(vi) of POCSO Act, 2012.
2. The prosecution case briefly stated that:
That on 22.6.2014 at about 18.30 Hours, the complainant Smt.Rathnamma filed a complaint as per Ex.P1 alleging that, her daughter-victim girl aged 16 years studying in 10th Standard in JSS School, that, on 20.6.2014 at about 9 A.M., in the morning went to school, but she did not return to house. They searched for her, but, her whereabouts not known.
3. On the basis of the said complaint, a missing case was registered in Cr.No.171/2014 as per FIR Ex.P11 under Sec.363 of IPC. Thereafter, criminal law was set in motion. The Investigating Agency commenced the search of the Victim girl. The victim girl was traced out in Channapatna on 25.6.2014 and she was brought back to Bangalore and was produced before the Kengeri Police. On enquiry, she [victim girl] told that, she came in contact with the accused when he was beating drums and at that time, he gave his telephone and asked her [victim girl] to call him and she used to talk to him, that on 20.6.2014 when she was 4 Spl CC No.504/2014 going to school at 9 A.M., the accused came near the bus stop of her school and asked her to come with him, when she refused, he threatened her and thereafter he took her to Kengeri on the pretext of marrying her and from Kengeri he took her to Kudlur to his house and for 2 to 3 days he confined her in the said house and one day when the accused was not in the house, she escaped from there and telephoned to her parents from coin booth that she is in Channapatna and asked them to take her from there. Thereafter her parents brought her back to Bangalore and took her before Kengeri Police Station, after recording her statement, on the basis of her statement, the Sub-Inspector of Police, has included Secs. 366, 343 and 506 of IPC and Secs. 11(iv)(v)(vi)) of POCSO Act, 2012 and taken up further investigation. The victim girl was sent for medical examination and spot mahazar conducted in Bengaluru as well as in Kudlur Village which is the house of the accused, the accused was secured on 25.6.2014 and he was also sent for medical examination and the articles seized during the medical examination were sent to the FSL and after completion of the investigation formalities, charge-sheet has been filed.
4. The accused is on bail and he is represented by the counsel of his choice. After appearance of the accused before this court, the copies of the prosecution papers [charge-sheet] was given to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5 Spl CC No.504/20145. After hearing the learned Public Prosecutor and the learned counsel for the accused, my learned Predecessor-in- office has framed the Charge on 2.7.2015 against the accused for the offences punishable under Secs. 343, 366 and 506 of IPC and under Sec.11 r/w Sec.12 of POCSO Act, 2012 and read over the charge to the accused in the language known to him. The accused pleaded not guilty and claimed trial.
6. The prosecution in order to bring home the guilt of the accused has examined in all 15 witnesses PWs-1 to 15 out of total 18 witness as shown in the charge-sheet and the prosecution examined one Additional witness as PW16 and got marked 13 documents as per Exs.P1 to P13 and also got marked Three Material objects as per MOs-1 to 3.
7. Now at this stage, it is necessary to mention that, in the charge-sheet total 18 witnesses are shown and only 15 witnesses are examined. PW16 is an Additional witness. CWs-6, 7 and 9 witnesses are not examined by the prosecution. CWs-6 and 7 are said to be the spot mahazar witnesses to Ex.P2 and CW9 is also said to be the spot mahazar witness to Ex.P8 conducted in the house of the accused where CW2 was kept in confinement. Learned Public Prosecutor sought one more time to secure CWs-6, 7 and 9. On perusal of the order sheet, it discloses that, on 9 times, summons, warrants and NBW issued to CWs-6, 7 and 9, their presence could not secure, hence, prayer made by learned Public Prosecutor is rejected and CWs-6, 7 and 9 are dropped.
6 Spl CC No.504/20148. After completion of prosecution evidence, the statement of the accused as contemplated under Sec.313 of Cr.P.C is recorded. The accused has denied the incriminating evidence found in the evidence of prosecution witnesses and his defence is that of total denial and he claimed that he is innocent of the alleged offences and in the Sec.313 Cr.P.C statement he stated that he does not know as to why the complaint is filed against him. However, the accused did not choose to lead any evidence in support of his defense.
9. Heard the learned Public Prosecutor and the learned counsel for the accused. Perused the records.
10. After hearing the arguments of the learned Public Prosecutor and the learned defence counsel and as per the Charge leveled against the accused, following Points do arise for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that on 20.6.2014 at about 9 A.M., the accused kidnapped the victim girl who is a minor with an intention to compel her to marry him against her will, or in order that she may be forced or seduced to illicit intercourse, thereby committed an offence punishable under Sec.366 of IPC?
2. Whether the prosecution further proves beyond reasonable doubt that the accused on the aforesaid date, time and place, after kidnapping the victim minor girl, took her to Kudlur Village, Malur Hobli, Channapatna Taluk, Ramanagar District and kept her in confinement in his house from 20.6.2014 to 25.6.2014 and thereby committed an offence punishable under Sec.343 of IPC?7 Spl CC No.504/2014
3. Whether the prosecution further proves beyond reasonable doubt that the accused herein threatened the victim girl if she were to disclose her kidnap to anybody and thus committed criminal intimidation, thereby committed an offence punishable under Sec.506 of IPC?
4. Whether the prosecution further proves beyond reasonable doubt that the accused repeatedly followed a child by making conversation with her through mobile i.e., electronic media and threatened her to involve in a sexual act and thereby committed an offence defined under Sec.11(iv), (v) (vi) punishable under Sec 12 of POCSO Act, 2012 ?
5. What Order?
11. My findings on the above points are as under:
Point No.1 : In the AFFIRMATIVE Point NO.2: In the AFFIRMATIVE Point Nos.3 and 4: In the NEGATIVE Point No.5: As per the final order, for the following:
REASONS
12. According to the prosecution, that on 20.6.2014 at about 9 A.M., when the victim girl was going to school, the accused kidnapped her with an intention to compel her to marry him against her will and took her to Kudlur Village, by keeping her in 8 Spl CC No.504/2014 confinement she victim is a minor girl. Hence, the accused has committed the offences as per the charge leveled against him.
13. The burden is upon the prosecution to prove the guilt of the accused. In order to discharge the said burden, the prosecution has relied on the evidence of PWs-1 to 16. The nature of the witnesses examined by the prosecution are as under:
Pw.1 Rathnamma the mother of the victim girl and the complainant of this case Pw.2 Victim girl Pw.3 Dr.Nisar Ahmed deposes about the medical examination conducted on the accused Pw.4 Chandranath Pw.5 Pramod Are the residents of Kudlur Village, deposes about that the accused brought the victim girl and kept her in his house for 3 to 4 days Pw.6 Vaikuntha Pw.7 Lakshmi-WPC deposes about taking the victim girl for medical examination Pw.8 Manikantha-witness to Spot Mahazar- Ex.P8 conducted in the house of the accused at Kudlur Pw.9 Mahadevappa-Head Master, JSS High School, deposes about issuing of birth certificate of the victim girl.
Pw.10 P.Chowdaraju- Police Constable deposes about apprehending of the accused 9 Spl CC No.504/2014 Pw.11 Lokesh.P.S- Police Constable deposes about taking the accused for medical examination Pw.12 Jagannath-Retired ASI deposes about receipt of the complaint and registering FIR Pw.13 Lakkanna- PSI deposes about conducting of further investigation, recording of the statements of the victim girl and her mother, arresting the accused, sending the victim girl and the accused for medical examination, conducting spot mahazars and sending the sealed articles to FSL PW.14 M.Mallikarjuna-PSI deposes about further investigation PW.15 Dr.Nirmala.C-Associate Professor, OBG, Rajarajeshwari Medical College deposes about the medical examination conducted on the victim girl PW.16 Narayanagowda.K-ASI deposes about obtaining the birth certificate of the victim girl from JSS School
14. Before appreciating the evidence, it is better to have a glimpse of the evidence given by all witnesses of the prosecution.
15. PW1-Rathnamma-mother of the victim girl and the complainant deposes that, in the year 2014, the victim girl was aged 17 years and studying in 10th standard in JSS School, in her house, she, her 3 children are residing, she has been working in JSS Engineering College Girls Hostel as house keeping, her duty hours is from 9 A.M to 6 P.M, her husband is going to mason work, the victim girl's school timings is from 9 A.M., to 4.30 P.M., that on 20.6.2014, she had gone to her duty, her daughter-victim girl had gone to school, but, her daughter did not return to house and she 10 Spl CC No.504/2014 enquired with the neighbours and she also enquired in tuition class, she searched for her daughter, but, her daughter did not secure and therefore she lodged a complaint on 22.6.2014 as per Ex.P1, that on 25.6.2014, her daughter telephoned to her [PW1] husband mobile stating that, she has been in Channapatna bus stop and asked him to come and take her, accordingly, she and her husband had gone to Channapatna and brought the victim girl back and thereafter took her to Kengeri Police Station, when she enquired the victim girl, she [victim girl] told that, on that day [20.6.2014] one Ravikumar, the accused herein forcibly took her to his village Kudlur and he asked her to marry him, as he has been loving her and when the victim girl refused to marry him, he confined her in his house and when he went out of the house, she escaped from there and came to Channapatna bus stop, thereafter the victim girl was sent to medical examination, Kengeri police came near the house and school of the victim girl and drawn mahazar in the place shown by the victim girl as per Ex.P2.
16. PW2-victim girl deposes that in the year 2014 she was aged 16 years and studying in 10th standard in JSS School, her school timings is from 9.30 A.M to 4.30 P.M, her mother has been doing house keeping work in JSS college, she came in contact with the accused when he had come to her village for drum beating and that time, the accused gave his telephone number to her and forcing her to talk with him over the phone and further he also told her that he will marry her and she told that she learn nursing and she refused to marry him and at that time the accused was telling her 11 Spl CC No.504/2014 that if she did not agree to marry him, then he will enticed her, that on 20.6.2014 at 9 A.M., when she was going to school, the accused came near the bus stop and threatened to come along with him and accordingly, he took her to Channapatna in bus, from there he took her to Kudlur Village to his [accused] house and he asked her to marry him, but, she did not agree, therefore, he kept her in his house for 2 to 3 days and one day, she escaped from the said house and came to Channapatna and from coin booth she telephoned to her father and asked her father and mother to come to Channapatna and accordingly, her parents brought her back to Bangalore and thereafter they took her[victim girl] to the Kengeri Police Station and she narrated the incident, accordingly, the Kengeri Police recorded her [victim girl] statement, that on 25.6.2014, the complainant police asked her to show the place from where the accused enticed her, she has shown the place i.e., Srinivas Nagar, wherein the police drawn Mahazar as per Ex.P2, thereafter she was sent to Rajarajeshwari Medical College for medical examination and she also identified the accused at the time of her evidence.
17. PW3-Dr.Nisar Ahmed-FSL deposes that on 26.6.2014, at about 12.30 P.M., at the request of the Kengeri Police, he conducted medical examination on the accused by name Ravikumar with the history of sexual assault and he has given Medical Report as per Ex.P3 and he opined that the accused is not incapable of doing any act like that of Sexual intercourse.
12 Spl CC No.504/201418. PW4-Chandranath, PW5-Pramod and PW6-Vaikuntha said to be the residents of Kudlur village, wherein the accused is residing, depose that they have been that the accused brought the victim girl and kept her in his[accused] house for 3 to 4 days, but, these witnesses turned hostile and not supported the case of the prosecution. The statement of PW4 is marked as per Ex.P4, statement of PW5 is marked as per Ex.P5 and statement of PW6 is marked as per Ex.P6.
19. PW7-Lakshmi-WPC deposes that on 26.6.2014, as per the instructions of the PSI, she took the victim girl to Rajarajeshwari Medical college for medical examination and after medical examination, she brought back the victim girl and produced her before the PSI, that on 28.6.2014, she again at the instructions of the PSI, she had gone to Rajarajeshwari Medical College and hospital and brought the articles which were seized by the Doctor at the time of medical examination of the victim girl and she has given Report as per Ex.P7.
20. PW8-Manikanta said to be the witness to Mahazar as per Ex.P8 [Mahazar drawn in the house of the accused at Kudlur Village] deposes that, on 30.6.2014, Kengeri police called him to the Police Station, accordingly, he had gone to Kengeri Police Station at 11 A.M., police took him and another person by name Raghu to Mariayya's house at Channapatna, in the said ho use, the accused and the victim girl were there, police enquired them and took the 13 Spl CC No.504/2014 signature on a paper, i.e., Ex.P8, as this witness deposed that he did not know anything, the prosecution cross-examined him.
21. PW9-Mahadevappa-Head Master JSS School deposes that at the request of Kengeri Police he issued Certificate attesting the date of birth of the victim girl is 4.12.1998 as per Ex.P9.
22. PW10-P.Chowdaraju deposes that on 25.6.2014 he was deputed for duty to secure the accused in the present case, accordingly, he contacted the informant and as per the information, he came to know that the accused has been in Uttarahalli Road, Srinivasapura and accordingly he went there by 8.00 P.M., and the accused after seeing him, tried to escape and he followed the accused and enquired him, after confirming that he is the same person, who is the accused in the present case and accordingly he brought to the Police Station and produced before the Investigating Officer.
23. PW11- Lokesh.P.S- deposes that he took the accused to medical examination to Rajarajeshwari Medical College and Hospital and after examination, he brought back the accused and produced before the Investigating Officer and he also brought the sealed articles given by the Doctor and given Report as per Ex.P10.
24. PW12-Jagannath-ASI deposes that when he was in the Police Station, the complainant came and given complaint as per 14 Spl CC No.504/2014 Ex.P1, he registered a case in Cr.No.171/2014 and sent FIR as per Ex.P11.
25. PW13-Lakkanna-PSI, deposes that on 25.6.2014 he has received the case records from CW16 and on the same day, at 6.30 P.M., he enquired the victim girl and her mother and he deputed CW13 for securing the accused, he secured the certificate pertaining to date of birth of the Victim girl and as he noticed that Victim girl is a minor, he secured the permission of the court to add Secs.366A, 343 and 506 of IPC in the FIR, on the same day, accused was produced before him and he arrested the accused, on 26.6.2014, the Victim girl and her mother came to the Police Station and he recorded the further statement of the mother of the Victim girl and he sent the Victim girl to Rajarajeshwari Hospital for medical examination and he also sent the accused to the said hospital, he received the seized articles as per Ex.P10 i.e. Report, he recorded the statement of CW14, on the same day, he visited the spot i.e., road in front of JSS School and conducted Mahazar as per Ex.P2, further he deposes that, on 30.6.2014, he again called the Victim girl and her mother to the Police Station and Victim girl took to Channapatna, Kudlur Village, wherein the Victim girl shown the house and he conducted Mahazar as per Ex.P8 and recorded the statements of the witnesses i.e., CW3 to CW5 and further he deposed that he has sent seized articles to FSL as per Acknowledgement Ex.P13.
15 Spl CC No.504/201426. PW14-M.Mallikarjuna-PSI deposes that, he received the case file from CW17 and that on 13.8.2014 he secured the attested certificate regarding date of birth of the Victim girl as per Ex.P9 and after completion of the investigation, he filed the charge-sheet against the accused.
27. PW15-Dr.Nirmala.C, deposes on 26.6.2014 at the request of the Kengeri Police, she conducted medical examination on the Victim girl and has given Medical Report as per Ex.P12 and further deposes that there was no sexual intercourse.
28. PW16-Narayana Gowda.K- ASI deposes that, as per the instruction of PSI, he visited the JSS school and gave requisition to the Head Master for furnishing the attested document with regard to date of birth of the Victim girl and accordingly the Head Master gave certificate as per Ex.P9.
29. On the basis of the evidence of the aforesaid witnesses, learned Public Prosecutor submitted his arguments. He argued that the accused has kidnapped the Victim minor girl, kept her in confinement, committed sexual harassment on the victim girl and considering the evidence of the Prosecution witnesses, he may be convicted.
30. On the other hand, the learned defence counsel argued that, the accused is innocent, he has not at all committed any offence as alleged by the prosecution, there are contradictions and 16 Spl CC No.504/2014 omissions in the evidence of the prosecution witnesses and hence, learned defence Counsel submitted that, the accused is entitled to an acquittal.
31. After hearing the arguments of learned Public Prosecutor and learned defence Counsel, now I will take up Points, which are raised in this case for consideration, for discussion.
32. POINT NO.1:- According to the prosecution, this accused had gone to the village i.e., Srinivasapura Colony, Bengaluru for beating drums wherein, he acquainted with the victim girl. The accused with an intention to marry the victim girl knowing full well that, she was a minor persuaded her to have talk with him and thereafter, he used to talk with her over phone and gradually he gained intimacy from her with him and accordingly that on 20.6.2014 when she was going to school, the accused came and persuaded her to come along with him and without informing her parents, he enticed her. Therefore, the prosecution contended that, the accused has committed the offence punishable under Sec.366 of IPC.
33. In order to prove, that the accused without the knowledge of the parents of the victim girl, kidnapped the victim girl with an intention to marry her, though knowing fully well that, she was a minor, the prosecution has relied upon the evidence of PW1-mother of the victim girl and PW2-victim girl herself.
17 Spl CC No.504/201434. On the other hand, the learned defence counsel argued that, though the prosecution examined PW1 and PW2 to say that, the accused kidnapped the victim girl, he argued that, their evidence cannot be reliable, as there are material contradictions, omissions and improvements in their evidence and therefore, their evidence is not trustworthy to believe and hence, the learned defence counsel argued that, the accused has not committed any offence of kidnap of the victim girl and thereby, the accused is entitled to an acquittal of the offence punishable under Sec.366 of IPC.
35. In the light of the arguments addressed by learned Public Prosecutor and the learned defence counsel, now, it is necessary to scrutinize the evidence of the prosecution witnesses cautiously of their versions in their cross-examination.
36. Learned Public Prosecutor argued that, PW1-mother of the victim girl and complainant, in her evidence deposes that, on 20.6.2014, she had gone to the work and the victim girl had gone to school, but, she [victim girl] did not return, they searched for her and when she did not trace-out, on 22.6.2014, complaint was lodged. She further deposed that, on 25.6.2014, victim girl telephoned to her father's mobile and told that, she was in Channapatna bus-stand and asked him to come and take her. She further deposed that, she and her husband came to Channapatan and brought back their daughter [victim girl] to Bangalore and produced her before Kengeri Police Station and on enquiry, the 18 Spl CC No.504/2014 victim girl revealed that, the accused kidnapped her alleging that, he was loving her.
37. PW2-victim girl similarly deposed to the evidence of PW1. Therefore, learned Public Prosecutor submitted that the evidence of victim girl and her mother itself is sufficient to prove that, the accused kidnapped the victim girl.
38. On the other hand, the learned defence counsel argued that, though the victim girl said to have telephoned to her father, but, the Investigating Officer has not recorded the statement of the father of the victim girl and further in the statement of PW1, she stated that, her daughter telephoned to her. Therefore, there is a controversy in the statement of the PW1 in her further statement and in her evidence and the evidence of PW2 with regard to telephone call made by the victim girl. Therefore, the learned defence counsel argued that, there is controversy in the evidence of PW1 and PW2.
39. Further learned defence counsel has brought to the notice of this court with regard to the contradictions in the evidence of PW1 and PW2. He argued that, victim girl was missing on 20.6.2014, complaint was lodged on 22.6.2014 i.e., 2 days delay in lodging the complaint, further this accused did not kidnapped the victim girl, in that regard, the learned defence counsel has brought to the notice of this court with regard to the admissions by PW1 and 19 Spl CC No.504/2014 PW2 in their cross-examination. According to PW1, the victim girl telephoned to her father sating that she was in Channapatna bus stand, but, PW2-victim girl in her cross-examination stated that, she telephoned to her father through coin booth that she was in Kudlur Village. Therefore, learned defence counsel argued that, there are 2 versions in the evidence of PW1 and PW2 with regard to tracing out the victim girl. Therefore, learned defence counsel argued that, doubt arises with regard to tracing out the victim girl and therefore the evidence of PW1 and PW2 cannot be relied upon in so far as tracing out the victim girl at Channapata and hence, he argued that, the accused did not kidnap the victim girl.
40. However it is pertinent to note that during the course of cross-examination of PW2, she deposed that she telephoned her father from coin booth, which is situated at Kudlur village, but, during her chief examination, she specifically stated that, after she escaped from the house of the accused, she came to Channapatna bus stand and she telephoned to her father. Therefore, though during the course of cross-examination the victim girl stated that, she telephoned to her father through coin booth, situated at Kudlur Village that is not material contradiction to disbelieve the evidence of PW2. PW2 being the victim girl deposed that, the accused took her and further there is no enmity or other considerations to lodge false complaint against this accused, her evidence can be believed as trustworthy.
20 Spl CC No.504/201441. Further learned defence counsel brought to the notice of this court that during the course of cross-examination of PW2, she stated that, on that date i.e., on 25.6.2014, she and her parents gone to Kengeri Police Station at 10 A.M., but, PW1-mother of the victim girl in her cross-examination stated that, on that day, she and her husband with the victim girl gone to Kengeri Police Station in the afternoon, but, in the Remand Application, it is mentioned that, in the evening i.e., at 6.30 P.M., on 25.6.2014, the victim girl along with her parents had gone to Kengeri Police Station. Therefore, learned defence counsel argued that, there are 3 versions with regard to securing the victim girl i.e., according to PW1, it is in afternoon, according to PW2 it is in the morning and according to the Remand Application it is in the evening. Therefore, learned defence counsel argued that, doubt arises about kidnapping of the victim girl by the accused.
42. It is true that, PW1 during the course of cross-examination deposed that, when she along with the victim girl had gone to Kengeri Police Station, it was afternoon and the victim girl-PW2 stated t at it was 10 A.M., in the morning as per the Remand Application it is mentioned as 6.30 P.M., but, because of the variation in timings deposed by PWs-1 and 2, only on that ground, it cannot be said that, the PWs-1 and 2 have deposed falsely and the incident had not at all taken place. The incident happened in the year 2014, PWs-1 and 2 deposed in the year 2015 i.e., one year after the incident, there may be chances of forgetting the time and therefore, there are variations in timings. Therefore, 21 Spl CC No.504/2014 the said arguments of the learned defence counsel that, because there are variations in the timings further there is contradictions in the evidence with regard to the place from which the victim girl telephoned to her father i.e., whether from Channapata or from Kudlur village, therefore, their evidence cannot be believed, is not sustainable.
43. On going through the evidence of PW1- mother of the victim girl more specifically the evidence of the victim girl, both of them deposed about taking of the victim girl by the accused with an intention to marry her, though he knew that, the victim girl was a minor. As there was no enmity against this accused, this court believed the evidence of the victim girl-PW2 in order to say that, the accused has kidnapped her with an intention to marry her. Therefore, the prosecution has proved the guilt of the accused that, he has committed the offence under Sec.366 of IPC. Accordingly, I answer Point No.1 in the Affirmative.
44. POINT NO.2:- It is the further case of the prosecution that, the accused after kidnapping the victim girl kept her in his house at Kudlur Village under confinement from the date of 20.6.2014 to 25.6.2014 for a period of 4 days. Therefore, learned Public Prosecutor submitted that the accused has committed the offence punishable under Sec.343 of IPC. Further learned Public Prosecutor submitted that in so far as this Charge is concerned, the complainant PW1 and victim girl-PW2 have deposed with regard to the confinement of the victim girl in the house of the accused. I 22 Spl CC No.504/2014 have gone through the evidence of PW1-mother of the victim girl. She deposed that, her daughter was missing since 20.6.2014, they searched for her, but, she did not trace out and on 25.6.2014, the victim girl herself telephoned to her husband's mobile and told that, she [PW2] was in Channapatna and the accused forcibly kidnapped her and took her to Kudlur Village stating that, he was loving her and he intended to marry her. Likewise, PW2-victim girl also deposed that, on 20.6.2014, while she was going to school at 9 A.M., the accused came and asked her to come with him and if she did not come with him, he threatened her to tell everybody in her school and in her house and by saying so, he took her to Channapatna in bus and thereafter, from Channapatna, he took her to Kudlur village to his house, wherein he told her that, he will marry her, for that, she did not agree and therefore, he kept her in his house for 2 to 3 days and on the 4th day, she escaped from his house and telephoned to her father. Therefore, learned Public Prosecutor submitted that the evidence of PWs-1 and 2 sufficient to say that, the accused kept the victim girl under confinement and therefore, committed the offence, as per the charge leveled against him.
45. On the other hand, learned defence counsel argued that the evidence of PW1 and PW2 cannot be believed. If at all the accused really confined her, she could have escaped from his house on the same day, but, she did not escape on that day itself. Therefore, the learned defence counsel argued that, evidence of PW1 and PW2 cannot be believed.
23 Spl CC No.504/201446. However, it is pertinent to note that, on perusal of the cross-examination of PW2, learned defence counsel put question to her:
"DgÉÆæUÉ ªÀÄzÀĪÉAiÀiÁVzÉ MAzÀÄ UÀÀAqÀÄ ªÀiUÀÄ EzÉ JAzÀÄ £À£U À É UÉÆwÛzÉ. DgÉÆæAiÀÄ ºÉAqÀw wÃjPÉÆArzÁÝ¼É JAzÀgÉ ¤d. PÀÄqÀÆèj£À ªÀÄ£ÉUÉ ºÉÆÃzÀ £ÀAvÀgÀ C°èègÀĪÀ CfÓ F «µÀAiÀĪÀ£ÀÄß £À£UÀ É w½¹zÀ¼ÀÄ."
This itself shows that, the accused took the victim girl to Kudlur village and confined her. Further in so far as tracing out the victim girl in the house of the accused at Kudlur Village is concerned, learned Public Prosecutor examined PW8 [Ex.P8]. Though PW8 turned hostile to the case of the prosecution, in the chief examination he deposed that, on 30.6.2014, he was taken to Mariyamma's house at Channapatna Taluk by Kengeri police, wherein the accused and the victim girl were in their house. Therefore, it discloses that Kengeri Police took the witness [PW8] for drawing up of Mahazar at tKudlur Village to the house of the accused. Though learned defence counsel argued that, the accused has not confined the victim girl in his house, from the suggestions put to PW2 during the course of cross-examination as stated above which is Kannada language, itself sufficient to accept the evidence of the victim girl. The sole testimony of the victim girl in cases of this nature, when there was no enmity against this accused, can be accepted. Believing the evidence of PWs-1 and 2, this court is of the opinion that, the accused wrongly confined the victim girl in his house for a period of 3 days. Therefore, the prosecution has proved the guilt of the accused that he has committed the offence under 24 Spl CC No.504/2014 Sec.343 of IPC. Accordingly, I answer Point No.2 in the Affirmative.
47. POINT NO.3:- There is charge leveled against this accused for the offence punishable under Sec.506 of IPC that, he has threatened the victim girl and made criminal force while kidnapping her and also he persuaded her to marry him.
48. However in so far as threatening the victim girl by this accused is concerned, this court opined that the prosecution has failed to prove the said charge against the accused, because, during the course of cross-examination of PW2, she admitted that, she came in contact with the accused when he had come to her village during Jatra time and the accused gave his phone number and since then she used to spoke with him through mobile. Therefore, when she was known the accused prior to the incident, then, there was no necessity for the accused to threaten the victim girl and use criminal force. Therefore, prosecution has failed to prove the guilt of the accused that, he has committed the offence punishable under Sec.506 of IPC. Accordingly, I answer Point No.3 in the Negative.
49. POINT NO.4:- In this case, the accused has been charged for the offence punishable under Sec.11(iv),(v),(vi) r/w Sec.12 of POCSO Act, 2012. On going through the ingredients of Sec.11(iv) of the Act it provides that:
25 Spl CC No.504/2014" A person repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means" or.
Sec.11(v) of the Act provides that:
"Threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act" or Sec.11(vi) of the Act provides that:
"Entices a child for pornographic purposes or gives gratification therefor".
Therefore, on seeing the ingredients of the aforesaid provisions, in the present case, the accused had no intention to use the victim girl for any pornographic purpose or for involvement of the victim girl in sexual act. The complainant and more specifically the victim girl did not depose that the accused has committed any sexual assault on her [victim girl]. Further the medical evidence i.e. the evidence of PW15, she deposed that, the hymen of the victim girl was in-tact and there was no sexual intercourse. Further PW2-victim girl during the course of cross-examination admitted that, when she stayed in the house of the accused, the grandmother of the accused was present and further the accused did not do any sexual assault on her. Therefore, the prosecution has failed to prove that, the accused 26 Spl CC No.504/2014 has committed the offence punishable under Sec.12 of POCSO Act, 2012. Accordingly, I answer Point No.4 in the Negative.
50. POINT NO.5: In view of my aforesaid discussions, I proceed to pass the following ORDER The accused is found guilty of the offences punishable under Secs.366 and 343 of IPC.
The accused is acquitted of the offences punishable under Sec.506 of IPC and under Sec.12 of POCSO Act, 2012.
MOs-1 to 3 being worthless are ordered to be destroyed after the appeal period is over.
To hear regarding Sentence.
[Dictated to the Stenographer partly and directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 7th day of January 2017).
(RAJESHWARI.N.HEGDE) LIV Addl., City Civil & Sessions Judge, Bangalore.
7.1.2017 ORDER REGARDING SENTENCE Accused is present before me, the learned defence counsel also present before me and learned Public Prosecutor is also present before me. The accused has submitted that, he has not forced the victim girl to come along with him. She voluntarily came with him, both of them were loving each other and when she came to know that, he was already married and has a son, she 27 Spl CC No.504/2014 did not want to marry him and therefore, the mother of the victim girl lodged the complaint that, her daughter was missing. Further he submitted that, he is a poor man, has to look after his aged mother and his son, he lost his previous wife and therefore to take lenient view in imposing the sentence.
On the other hand, learned Public Prosecutor submitted that, the accused has committed the offence on minor girl and while imposing sentence, no lenient view can be taken and whatever punishment prescribed, that has to be awarded. Further he has relied upon the decision reported in AIR 2013 Supreme Court 3246 [State of Harayana Vs.Janak Singh] wherein it is observed that:
"Sentence bargaining not permissible in rape cases".
Hence, the learned Public Prosecutor prays for awarding the maximum sentence as contemplated under Sec.6 of POCSO Act, 2012".
On going through the provisions of Sec.366 of IPC, no minimum punishment is prescribed, it provides that:
"Whoever kidnaps or abducts any woman with intent that she may be compelled to marry any person against her will or in order that she may be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine".
Therefore, there is discretion given to the court to impose punishment which may extend to a period of 10 years.
28 Spl CC No.504/2014In so far as Sec.343 of IPC is concerned, punishment prescribed is:
"Whoever wrongfully confines any person for three days or more, shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both".
Here also no minimum punishment is prescribed. The punishment may extend to 2 years.
In this case, on going through the evidence and circumstances of this case i.e., the victim girl and the accused were loving each other, she used to telephone to the accused and had conversation over the phone for one year and when she had gone to the house of the accused, she came to know that, the accused already married and therefore, she did not want to marry him and in the meantime, the mother of the victim girl lodged the complaint that, her daughter was missing and therefore, the complainant police took up the investigation and came to know that, the victim girl was a minor and thereafter the complainant police conducted further investigation and filed charge-sheet against this accused that, he has committed the offence under POCSO Act, 2012.
Further in this case, the accused though kidnapped the victim girl and took her to his village and confined her, he did not do any sexual act on her, if the accused had an intention to force her [victim girl] to sexual act, then he would have committed sexual assault on her. Considering all these facts, this court is of the opinion that, the period undergone by the accused in judicial 29 Spl CC No.504/2014 custody during the trial i.e., 4 months and 12 days itself is sufficient to punish him. Therefore, I proceed to pass the following Sentence:
SENTENCE The accused is sentenced to undergo Simple Imprisonment for a period of 4 Months 12 Days [i.e., period already spent by him in judicial custody] and he shall be liable to pay fine of Rs.1,000/- for the offence punishable under Sec.366 of IPC. In default to pay fine of Rs.1,000/-, he shall undergo further Simple Imprisonment for a period of 2 Months.
Further, the accused is sentenced to pay a fine of Rs.1,000/- for the offence punishable under Sec.343 of IPC. In default to pay fine of Rs.1,000/-, he shall undergo Simple Imprisonment for a period of 2 Months.
The sentence in default of payment of fine amount shall run consecutively.
Office is directed to supply free copy to the accused. [Dictated to the Stenographer partly and directly on the computer, corrections carried out then pronounced by me in the Open Court on this the 7th day of January 2017).
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.30 Spl CC No.504/2014
The accused is ready to pay fine amount in all Rs.2,000/- today.
In view of the sentence passed by this court and the sentence already undergone by the accused and the accused has also deposited fine amount, his bail bond and surety bond obtained earlier stands cancelled. He is set at liberty. However, the bail bond and the surety bond executed by the accused on 3.12.2016 in compliance with Sec.437[A] of Cr.P.C shall be in force for a period of 6 Months from the date of this Judgment.
[RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY.
ANNEXURE Witnesses examined for the prosecution:
Pw.1 Rathnamma CW1 9.10.2015
Pw.2 Ashwini CW2 9.10.2015
Pw.3 Dr.Nisar Ahmed CW11 21.3.2016
Pw.4 Chandranath CW3 21.3.2016
Pw.5 Pramod CW4 21.3.2016
Pw.6 Vaikuntha CW5 21.3.2016
Pw.7 Lakshmi CW15 15.4.2016
Pw.8 Manikantha CW8 15.4.2016
Pw.9 Mahadevappa CW15 6.5.2016
Pw.10 P.Chowdaraju CW13 6.5.2016
Pw.11 Lokesh.P.S CW14 6.5.2016
31 Spl CC No.504/2014
Pw.12 Jagannath CW16 6.5.2016
Pw.13 Lakkanna CW17 6.5.2016
PW.14 M.Mallikarjuna CW18 6.5.2016
PW.15 Dr.Nirmala.C CW10 29.9.2016
PW.16 Narayanagowda.K Additional witness 18.11.2016
Documents marked for the prosecution:
Ex.P1 Complaint dated: 22.6.2014
Ex.P1[a] Signature of PW1
Ex.P1(b) Signature of PW12
Ex.P2 Spot Mahazar conducted in Bengaluru
Ex.P2(a) Signature of PW1
Ex.P2(b) Signature of PW2
Ex.P2(c ) Signature of PW13
Ex.P3 Medical report of the accused
Ex.P3(a) Signature of PW3
Ex.P4 Statement of PW4 before the complainant Police
Station
Ex.P5 Statement of PW5 before the complainant Police
Station
Ex.P6 Statement of PW6 before the complainant Police
Station
Ex.P7 Report given by PW7
Ex.P7(a) Signature of PW7
Ex.P7(b) Signature of PW13
Ex.P8 Spot Mahazar conducted in the house of the accused
situated at Channapatna Taluk, Kudlur Village, Ramangar District 32 Spl CC No.504/2014 Ex.P8(a) Signature of PW8 Ex.P8(b) Signature of PW13 Ex.P9 Certificate issued by PW9-Headmaster, JSS High School, attesting the date of birth of the victim girl is 4.12.1998 Ex.P9(a) Signature of PW9 Ex.P10 Report given by PW11 to the PSI, Kengeri Police Station Ex.P10(a) Signature of PW11 Ex.P10(b) Signature of PW13 Ex.P11 FIR in Cr.No.171/2014 Ex.P11(a) Signature of PW12 Ex.P12 Medical Report of the victim girl Ex.P12(a) Signature of PW15 Ex.P13 Acknowledgement issued by the FSL for receiving the sealed articles sent by the Kengeri Police Station in Cr.No.171/2014 Material Objects marked for the prosecution:
MO1 Pubic hair MO2 Kacha of the accused MO3 Banian
Witness examined, documents and MOs marked for the accused:
NIL.
LIV Addl., City Civil & Sessions Judge, Bangalore.33 Spl CC No.504/2014
7.1.2017 Accused present.
Judgment pronounced in open court:[ Vide separate detailed Judgment] The accused is found guilty of the offences punishable under Secs.366 and 343 of IPC.
The accused is acquitted of
the offences punishable under
Sec.506 of IPC and under
Sec.12 of POCSO Act, 2012.
MOs-1 to 3 being worthless are
ordered to be destroyed after the
appeal period is over.
To hear regarding Sentence.
[RAJESHWARI.N.HEGDE]
LIV ADDL., CITY CIVIL
& SESSIONS JUDGE,
BENGALURU CITY.
Heard regarding sentence.
Sentence pronounced in the open
court: [vide separate detailed sentence] The accused is sentenced to undergo Simple Imprisonment for a period of 4 Months 12 Days [i.e., period already spent by him in judicial 34 Spl CC No.504/2014 custody] and he shall be liable to pay fine of Rs.1,000/- for the offence punishable under Sec.366 of IPC. In default to pay fine of Rs.1,000/-, he shall undergo further Simple Imprisonment for a period of 2 Months.
Further, the accused is sentenced to pay a fine of Rs.1,000/- for the offence punishable under Sec.343 of IPC. In default to pay fine of Rs.1,000/-, he shall undergo Simple Imprisonment for a period of 2 Months. The sentence in default of payment of fine amount shall run consecutively. Office is directed to supply free copy to the accused. [RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY. The accused is ready to pay fine amount in all Rs.2,000/- today. Therefore the office is directed to receive the sum of Rs.2,000/-. LIV ACC & SJ, Bangalore. 35 Spl CC No.504/2014 In view of the sentence passed by this court and the sentence already undergone by the accused and the accused has also deposited fine amount, his bail bond and surety bond obtained earlier stands cancelled. He is set at liberty. However, the bail bond and the surety bond executed by the accused on 3.12.2016 in compliance with Sec.437[A] of Cr.P.C shall be in force for a period of 6 Months from the date of this Judgment. [RAJESHWARI.N.HEGDE] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, BENGALURU CITY. 36 Spl CC No.504/2014