Bangalore District Court
Unknown vs M.K.Fazaluddin on 3 January, 2017
IN THE COURT OF THE LIII ADDL.CITY CIVIL &
SESSIONS JUDGE, BANGALORE
DATED THIS THE 3rd DAY OF JANUARY, 2017
- : PRESENT : -
SMT.SHUBHA GOWDAR, B.A.LL.B,
LIII ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE.
SPECIAL C.C.NO. 593/2015
COMPLAINANT :
The State of Karnataka by
Yelahanka Upanagar Police Station,
Bangalore.
[Represented by learned Public
Prosecutor, Bangalore.]
/ VERSUS /
ACCUSED:
M.K.Fazaluddin,
S/o. Mohamed Kunju,
Aged about 63 years,
R/at No. 116, Chikkabettahalli,
Near old Car Showroom,
Yalahanka Road,
Vidyaranyapura Post,
Bangalore
Native place:
Perukujji village,
Kundara post,
2 Spl.C.C.593/15
Kullam District
Kerala State.
[Reptd by Sri. K.Elangovan -
Advocate]
***
JUDGMENT
Yalahanka Upanagar Police, Bangalore City have charge sheeted the accused for offences punishable under Sections 354-A of I.P.C and under Section 11 of Protection of Children from Sexual Offence Act, 2012.
2. The case of the prosecution, in brief, is as under :
CW-1 and the accused were residing together in Adhityanagar as husband and wife since 3 years prior to lodging of a complaint and also they have two years female baby. Since 1/ 1½ months accused was sexually exploiting two years child in the absence of CW-1. On coming to know this fact the sister of CW-1 advised her to lodge a complaint against the accused, so on 5.11.2015 lodged a complaint to take an action against accused. On being registered the case Investigating Officer drew necessary mahazars. He
3 Spl.C.C.593/15 apprehended the accused. Accused and the victim girl were sent to hospital for medical examination. He had recorded the statement of prosecution witnesses. By completing investigation, he submitted charge sheet to the Court for the aforesaid offences.
3. After submitting charge sheet to this court cognizance was taken and registered in Special C.C. On hearing both sides the charge was framed for offences punishable under Sections 354-A r/w Section 11 and 12 of Protection of Children from Sexual Offence Act, 2012. The same was read over to the accused. The accused pleaded not guilty and claimed to be tried. Hence, posted for prosecution evidence.
4. On prosecution side got examined as many as 5 witnesses as P.W.1 to 5 out of 11 charge sheet witnesses and got marked the documents at Ex.P.1 to Ex.P.5. On closure of evidence on prosecution side, it was posted for accused statement. Accused statement under Section 313 Cr.P.C has been recorded against accused. Accused has denied the whole 4 Spl.C.C.593/15 incriminating evidence against him and he has not chosen to lead evidence on his side. It was posted for arguments.
5. Heard the arguments both sides. Perused and posted for Judgment.
6. The points that arise for my consideration are as under:
1. Whether the prosecution has proved beyond reasonable doubt that accused had sexually abused the female child of CW-1 and the accused, in house No.116, Yelahanka Main Road, Chikkabettahalli village since 1½ months prior to 5.11.2015, punishable under Section 354-A r/w Section 11 r/w 12 of Protection of Children from Sexual Offence Act, 2012?
2. What order?
7. My findings on the above points are as under:-
5 Spl.C.C.593/15 Point No.1 : In the negative Point No.2 : As per final orders for the following REASONS
8. Point No.1 The prosecution made allegation against the accused that he being the father of the victim child aged about 2 years, had sexually abused her since 1½ months prior to 5.11.2015. CW-1 earlier got married one Tangadorai in the year 2004, they had one male baby. About 5 years before lodging of this complaint he left her and male child was also with him. PW-2 the complainant has been working as security in Embassy Hebetate in Vasanthnagar. One Jalaluddin, brother of accused was working as service care manager in the same Embassy Hebetate. Thus both of them came in contact. Once he was admitted to Tamilnadu hospital and he was in Coma stage. Then, she was contacting him over phone enquiring his health, then accused was introduced to Pw-2. Thereafter, both of them continued the contact. He got Pw-2 to Coimbatore and asked her to be with him as he will look after very well. She agreed and both of them started residing 6 Spl.C.C.593/15 as husband and wife in Adhithyanagar, M.S. Palya for a period of 3 years, thereafter, they shifted the house to Bettahalli. As a result they have one female baby. As on the date of alleged incident the said child is aged about 2 years. Since 1 ½ months he was sexually abusing her. He committed rape on her. Because of the apprehension of being lowered her family reputation she did not lodge a complaint immediately. When her sister had, coming to know this fact, advised her to lodge a complaint to avoid further illegal activities. Then she lodged a complaint on 5.11.2015. After registering a case accused was apprehended. Accused and the victim girl were sent to hospital for medical examination. This is the case of the prosecution.
9. The charge against the accused under Section 354-A of I.P.C. r/w Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012. In view of Section 2(1)(d) of POSCO Act "child" means any person who is under the age of 18 years. According to prosecution the victim girl is aged about 2 years. On this point, there is no dispute. On 7 Spl.C.C.593/15 defence side not disputed this aspect. Ofcourse, no document is got exhibited with respect to age of child. However, there is medical report at Ex.P3 of which would speak that she is aged about 3 years. Ofcourse her age was not certified based on necessary tests. Irrespective of it is an undisputed fact. Hence, it can very well be concluded that victim girl is aged about 2 years as on the date of alleged incident.
10. Section 29 of Protection of Children from Sexual Offence Act, 2012 provides presumption in favour of the accused, it reads as under:-
"Where a person is prosecuted for committing or abetting or attempting to commit any offence under sections 3, 5, 7 and section 9 of this Act, the Special Court shall presume, that such person has committed or abetted or attempted to commit the offence, as the case may be, unless the contrary is proved."
In view of Section 29 of the Act if any person has been prosecuted for any one of the offences laid down therein the Special Court shall presume that he has committed the offence unless contrary is proved. It is pertinent to note the 8 Spl.C.C.593/15 Sections mentioned therein are 3, 5, 7 and 9 of the Act. The charge is under Section 11 r/w Section 12 of POSCO Act for which this presumption is not available to prosecution and the heavy burden is on the prosecution to establish its case beyond reasonable doubt. The charge is for offence under Section 354-A r/w Section 11 r/w Section 12 of POCO Act. In order to prove its case, the prosecution has got examined as many as 5 witnesses out of 11 witnesses.
11. PW-2 Salma is the complainant and mother of the victim child aged about 2 years. PW-1 is WPC who took the child to hospital for medical examination. PW-3 is Dr. Vandana.S who had subjected the victim child to medical examination including the local examination and issued medical report at Ex.P3. PW-4 is Dr. B.M. Nagaraju who examined the accused and issued medical report as per Ex.P4. PW-5 V.S. Shivakumar, P.I. is the Investigating Officer.
12. PW-2, 3, 4 and 5 are the material witnesses in the present case. I have already mentioned in supra about the 9 Spl.C.C.593/15 case of the prosecution, in other words the allegation made by the prosecution against the accused. Accused is none else rather than the father of the victim child. PW-2 and the accused started living together as husband and wife, consequently they have one female baby i.e., victim child. As per the allegation accused had been sexually exploiting two years female baby since 1 and 1 ½ months prior to lodging the complaint. Ex.P1 is the complaint lodged by PW-2 on 5.11.2015. As per the allegation in the complaint she did not lodge a complaint immediately after the incident for the reason if reported to the police would lower the reputation of her family in the society as accused being the father had sexually exploited two years child. But when her sister had, coming to know this incident, advised her to lodge a complaint, she had lodged a complaint on 5.11.2015. Hence, PW-2 is the proper person to speak on all these aspects. But, there is nothing found in her evidence to prove the case of the prosecution. She is the mother of the victim child and also she is the wife of the accused. But, her oral testimony does not suggest anything against the accused.
10 Spl.C.C.593/15
13. In Ex.P1, specifically mentioned that accused had committed rape on 2 years female baby for the last one month prior to 5.11.2015. Under the circumstance, the medical evidence also placed vital role. Hence, the evidence of doctor is also very material. Pw-3 Dr. Vandana.S had examined the victim child and found her hymen intact, she opined that victim child is not used for sexual activities. Accordingly she has issued Ex.P3, the medical report. There is no favourable medical evidence to prove the prosecution case. Merely because PW-4 Doctor who examined accused and issued medical report as per Ex.P4 that there is nothing to suggest that he is incapable of having sexual intercourse, there is absence of recent sexual intercourse, but, he had earlier, does not establish the case of the prosecution because accused is the husband of PW-2. They were living as husband and wife. Under the circumstance, Ex.P3, the medical report and oral testimony of PW-3 and also PW-2 is material to find out whether victim child had been sexually abused as alleged in the complaint. When the victim child is of 2 years only, if she has been sexually exploited there could have been 11 Spl.C.C.593/15 something to show, but there is absence of injuries or even nothing has been damaged as per the medical evidence, under the circumstance it is very difficult to believe that accused had sexually abused his two years child.
14. Ofcourse, PW-5 Investigating Officer has reiterated the case of the prosecution. He has also spoken about the lodging of complaint by PW-2 as per Ex.P1 and also drawing of mahazar as per Ex.P2 in the place of occurrence and also subjected accused and victim child to medical examination. In the absence of any piece of evidence with respect to sexual abuse on the victim child and also in the absence of support by medical evidence it is not safe to convict the accused for alleged charge.
15. Section 354-A of I.P.C. provides the sexual harassment involving the physical contact. Section 11 r/w 12 of POSCO Act provides the sexual harassment. There is absolutely nothing brought on record to prove either the ingredients of Section 354-A or Section 11 of POSCO Act. PW-2 has not at all 12 Spl.C.C.593/15 supported the case of the prosecution. At the same time, the prosecution case is not supported by the medical evidence. In the absence of favourable medical report the case of the prosecution itself is doubtful. The prosecution has miserably failed to establish the charges levelled against the accused to prove the sexual exploitation on the victim child as alleged in Ex.P1. The prosecution has failed to prove its case beyond reasonable doubt. The benefit of doubt should go to the accused. Hence, I hold point No.2 in the negative.
16. Point No.2: In view of my above discussion and findings, I proceed to pass the following:
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for offences punishable under Sections 354-A r/w Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012.
Award of compensation as in Section 7(2) of POSCO Act, to 2 years victim child of PW-2 is hereby recommended to District Legal 13 Spl.C.C.593/15 Services Authority, Bangalore Urban. Submit the copy of the F.I.R., complaint, charge sheet and last day order sheet to D.L.S.A. (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 3rd day of January, 2017.) (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE LIST OF WITNESSES EXAMINED ON BEHALF OF PROSECUTION PW.1 Uma PW.2 Salma PW.3 Dr. Vandana .S PW.4 B.M. Nagaraju PW.5 V.S. Shivakumar LIST OF DOCUMENTS MARKED ON BEHALF OF PROSECUTION Ex.P1 Statement of PW-2 Ex.P 1(a) Signature of PW-2 Ex.P 1(b) Signature of PW-5 Ex.P 2 Spot panchanama Ex.P 2(a) Signature of PW-2 Ex.P 2(b) Signature of PW-5 14 Spl.C.C.593/15 Ex.P 3 Medical report of victim Ex.P3(a) Signature of PW-3 Ex.P 4 Medical report of accused Ex.P 4(a) Signature of PW-4 Ex.P 5 F.I.R.
Ex.P5(a) Signature of PW-5.
LIST OF MATERIAL OBJECTS MARKED
- NIL -
LIST OF DOCUMENTS MARKED ON BEHALF OF DEFENCE
- NIL -
LIST OF WITNESSES EXAMINED, AND MO.S MARKED ON BEHALF OF DEFENCE
-NIL-
(SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
*** 15 Spl.C.C.593/15 3.1.2017 Judgment pronounced in the open court, operative portion of which reads as under:-
ORDER Acting under Section 235(1) of Cr.P.C. accused is hereby acquitted for offences punishable under Sections 354-A r/w Section 11 r/w Section 12 of Protection of Children from Sexual Offence Act, 2012.
Award of compensation as in Section 7(2) of POSCO Act, to 2 years victim child of PW-2 is hereby recommended to District Legal Services Authority, Bangalore Urban. Submit the copy of the F.I.R., complaint, charge sheet and last day order sheet to D.L.S.A. (SHUBHA GOWDAR) LIII Addl.City Civil & Sessions Judge, Bangalore.
16 Spl.C.C.593/15