Bangalore District Court
State By Hal Police vs Rathandas on 30 January, 2018
BEFORE THE CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
Dated this the 20th day of January, 2018
Present: SMT.YADAV VANAMALA ANANDRAO., B.Com. LL.B.[Spl.]
LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55]
SITTING IN CHILD FRIENDLY COURT,
BENGALURU URBAN DISTRICT.
SPL CC NO.219/2015
COMPLAINANT: State by HAL Police,
Bangalore City.
(By Learned Public Prosecutor)
-Vs -
ACCUSED: Rathandas,
Son of NithyaHaridas,
Aged about 30 years,
Residing at: Elethota Krishnappa
labour shed, Kalappa Layout,
Basava Nagar, HAL, Bangalore.
Permanent resident of:
Sipoor Village,
Dharmanagar Thana,
Tripura.
[By Advocate/Standing Counsel for the
accused: Smt.Mamatha.J].
2 Spl CC No.219/2015
1. Date of commission of offence 18.2.2015
2. Date of report of occurrence of 18.2.2015
the offence
3. Date of arrest of accused 18.2.2015
4. Date of release of accused [bail] Accused is in the judicial
custody since the date of his
arrest i.e., from 18.2.2015
5. Date of commencement of 7.1.2016
evidence
6. Date of closing of evidence 28.9.2017
7. Name of the complainant Smt.Suma-complainant as well
as the mother of the victim girl
8. Offences complained of Secs. 376 and 506 of IPC and
[as per the charge-sheet] under Secs. 5(m), 5(l) r/w Sec.6
of POCSO Act, 2012
9. Opinion of the Judge Accused is convicted and
sentenced
3 Spl CC No.219/2015
JUDGEMENT
The Police Inspector, HAL police station as Investigating Officer has filed the charge-sheet against the accused for the offences punishable under Secs. 376 and 506 of IPC and under Secs. 5(m), 5(l) r/w Sec.6 of POCSO Act, 2012.
2. Gist of the prosecution case is that:
The accused on 18.2.2015 at about 2 p.m., when CW2/victim girl who was aged about 10 years, was alone in her house situated at Elethota Krishnappa Labour Shed, Kalappa Layout, Basavanagar, HAL, Bangalore, called her to his house with sexual intent, removed her clothes and committed aggravated penetrative sexual assault/rape on the victim girl. Earlier also i.e., two months prior to 18.2.2015, the accused had committed aggravated penetrative sexual assault/rape on the victim girl repeatedly, by calling her to house, knowingly that she was minor and the accused had also criminally intimated the victim girl not to disclose the said incident to anyone, by giving life threat and when the victim girl screamed, neighobour-CW5 who was residing in the opposite house of the victim girl came and rescued her and the public gathered and they all assaulted the accused on his person causing bleeding injuries. Thereafter, they phoned to the police station and the police came and took the victim girl, the accused and CW5 to the police station. The mother of the victim girl along with her sister, younger son and husband of her sister went to Mulabagilu on account of death of her relative and on the incident day they returned back and came to know about 4 Spl CC No.219/2015 the incident from the neigbours, the mother of the victim girl came to the police station and got it narrated the incident and lodged a complaint. Hence, on the basis of the said complaint, a case in Cr.No.138/2015 came to be registered and the Investigating Officer has undertaken the investigation and collected materials and filed charge-sheet against the accused. Cognizance was taken. Since the date of his arrest, the accused has been in the judicial custody.
3. Initially this case was made over to this court CCH:55. Since as per the Notification, No. ADM-I (A)/ 614/2017, of the Office of the city Civil Court, Bengaluru, dated: 4.8.2017, with effect from the afternoon of 5.8.2017, now, the case is before this Child Friendly Court, Bengaluru Urban District, for disposal.
4. After production of the accused, the copies of the prosecution papers [charge-sheet] was furnished to the counsel on behalf of the accused in-compliance with Sec.207 of Cr.P.C.
5. After hearing the learned Public Prosecutor and the learned counsel for the accused, this court has framed the Charge on 18.9.2015 and read over to the accused in the language known to him. The accused pleaded not guilty and claimed the trial.
5 Spl CC No.219/20156. To prove the case, the prosecution has examined PWs-1 and 17 witnesses and one additional witness is examined as PW18, out of total 20 charge-sheet witnesses and placed reliance on Exs.P1 to P12 documents and Exs.D1 to D3 documents are marked in the cross-examination of PW5 and Exs.D1 and D2 documents are marked in the cross-examination of PW8 and PW9 respectively. After recording the evidence of the prosecution witnesses, the statement of the accused under Sec.313 of Cr.P.C has been recorded. The accused has denied all the incriminating evidence available against him, but, he has not adduced his evidence.
7. Accordingly the arguments of the learned Public Prosecutor was heard. The learned counsel for the accused has filed written arguments. Perused the oral and documentary evidence and the record on hand. Following Points are formulated for consideration:
1. Whether the prosecution has proved beyond all reasonable doubt that, on 18.2.2015 at about 2 P.M., when the victim girl who was aged about 10 years was alone in her house i.e., in labour shed belonging to Elethota Krishnappa, Kalappa Layout, Basava Nagara, HAL, Bangalore, the accused with a sexual intent called the victim girl to his house removed her clothes and committed aggravated penetrative sexual assault on her and even the accused had committed the penetrative sexual assault on the victim girl several times within a period of 2 months prior to 18.2.2015, by calling her to his house, knowingly that she was minor below the age of 12 years and thereby the accused has committed an offence coming under 6 Spl CC No.219/2015 the definition Clause of Sec.5(l), Sec.5(m) of POCSO Act, 2012 punishable under Sec.6 of POCSO Act, 2012 and r/w Sec.376 of IPC?
2. Whether the prosecution has further proved beyond all reasonable doubt that, on the said date, time and place the accused criminally intimidated the victim girl under life threat not to disclose the said act of sexual assault on her and thereby the accused has committed an offence punishable under Sec.506 of IPC?
3. What Order?
8. My findings on the above points are as under:
Point Nos.1 and 2: In the AFFIRMATIVE Point No.3: As per the final order, for the following:
REASONS
9. POINTS-1 AND 2:- As these Points are inter-linked with each other, hence, they are taken up for common consideration to avoid repetition of facts. The prosecution has came with a case that, the accused has committed aggravated penetrative sexual assault on the victim girl aged about 10 years, on 18.2.2015 at about 2 P.M., in the labour shed wherein the accused was residing as a tenant, belonging to Elethota Krishnappa, Kalappa Layout, Basavanagar, HAL, Bangalore, by luring her and calling her to his house with sexual intent, and by removing her clothes and earlier to it, the accused used the victim girl for his lust several times within a period of 2 months prior to 18.2.2015, by giving some money, and also on the said date of incident, he had committed aggravated penetrative sexual assault 7 Spl CC No.219/2015 on the victim girl. He had criminally intimidated the victim girl if she discloses the said incident to anybody else, he would take away her life.
10. The prosecution has adduced the evidence of the material witnesses i.e, the very victim girl as PW2 and her mother/complainant [CW1] as PW1 and her uncle [CW3] as PW8 and her aunt [CW4] who deposed as PW9. The direct and independent witnesses arrayed by the prosecution are also the material witnesses i.e., CW5-Mohammed Yusuf deposed as PW5 and his son CW6-Saddam Hussain deposed as PW11. CW7-Nanjundappa as PW13 has deposed that, he was the landlord of sheet houses constructed by him for labours and security guards in Kalappa layout, for rental of Rs.1,000/- to Rs.2,000/- for each of such houses and that the accused was residing in the rented premises, belonging to this witness, on rent. His ]PW13] evidence is reliable about the residence of the accused in a sheet house of PW13, as a tenant. However, he [PW13] turned hostile to the fact that he knew the incident. However, he is the hear say witness regarding the incident and his hostility does not make it a weak case, but, it supports certain material facts that he was resident of the same locality where the victim girl and her mother and her other relatives were residing. Thus, it is proved the place of incident i.e., residence of the accused.
8 Spl CC No.219/201511. The panch witnesses to the spot i.e, CW8-Sri.Janaki Ram Reddy and CW9-Sri.Vasu have not been examined by the prosecution. The prosecution has failed to adduce the evidence of these witnesses [CWs-8 and 9] inspite of giving reasonable time and inspite of issuance of witness warrants also. However, PW1 who is a material witness had shown the spot where the incident was taken place i.e, the house of the accused. She [PW1] supported the case of the prosecution regarding conducting of spot mahazar. The Investigating Officer-PW17 has deposed that, "it was drawn with due procedure, [the spot mahazar is at Ex.P2] and on the basis of the spot shown by PWs-1 and 2 and in the presence of CWs-8 and 9" which was not shakened. Hence, the non-examination of these witnesses [CWs-8 and 9] by dropping their evidence is not fatal to the prosecution case, and it is not so much of material defect to disbelieve the case of the prosecution.
12. CW12- Sheela.R is the Headmistress of the Government Primary School, Vibhuthipura, Bangalore, has issued the Certificate regarding the date of birth of the victim girl. She has deposed as PW4. There is no much dispute about the age of the victim girl. As per the document at Ex.P3,-Study Certificate, the date of birth of the victim girl is 19.7.2005. Therefore, it is proof of the age of the victim girl that, she was below the age of 18 years, specifically below the age of 12 years, which is relevant regarding the gravity and seriousness of the offence committed on the person of the victim girl by the accused.
9 Spl CC No.219/201513 . CW13- Smt.Meenakshi who deposed as PW3 is the Co-ordinator of SJPU, has deposed about recording the statement of the victim girl, as per the requisition of the Investigating Officer. She went to the police station and recorded the statement of PW2, narrated by her about the said fatal incident occurred on that day and also such sexual assault on her, earlier to that incident, by luring her and giving money to her. During this process of investigation, Woman ASI was present. She deposed as PW18 [additional witness Smt.Sagai Mari] She [PW18] supported the version of PW3 that on 18.2.2015, the statement of the victim girl was recorded by the Co-ordinator of SJPU-PW3 in her [PW18] presence and the victim girl stated in her statement that, the accused had committed sexual assault on her. In this connection, the very victim girl has stated that, she gave statement before PW3- Co-ordinator, SJPU and in the presence of the lady police officer. She[victim girl] was enquired in the police station wherein PW3 recorded her statement. There is no cross-examination rebutting the evidence about recording of statement by PW3, in connection with the said incident of the victim girl. Therefore, in connection with recording of statement by PW3, in the presence of PW18, in the police station in connection with the said incident, is initially, the proved fact. The version of PWs-3 and 18 are not shaky and that they spoke firmly. Hence, what has been stated by PW2 was duly recorded by PW3 in the presence of PW18, which is forming part of the investigation process.
10 Spl CC No.219/201514. The medical evidence is the version of CW10- Dr.K.V.Sathish who deposed as PW12, who has medically examined the accused with due procedure and with consent of the accused, who deposed about the potentiality of the accused and opined that, " There is nothing to suggest that the person is incapable of performing an act like that of sexual intercourse".
Further he [PW12] opined that: "At the time of physical examination of the accused, he noted the following injuries on the body of the accused:
i. Contusion over left side shoulder over an area 10 x 6 cm.
ii. Contusion right side back of chest over an area 10 x 6 cm.
iii. Contusion over right side face over an area 9 x 4.5 cm.
Contusion were reddish blue in colour.
The aforesaid injuries may be occurred if the person was assaulted by the public".
15. It is also material to note that the prosecution has not secured the presence of CW11-Dr.Deepa, to give evidence who has medically examined the victim girl. The learned Public Prosecutor specifically argued that, the Certificate issued by CW11-Dr.Deepa has been taken and got marked at the time of evidence of the Investigating Officer. He further pressed upon the legal position that, it is settled principle that, the Medical Certificate is not a sole piece of evidence. Direct evidence is the best evidence to believe the prosecution case. The prosecution case has to be 11 Spl CC No.219/2015 weighed on the basis of all available materials on record and appreciate the direct and circumstantial evidence. The Medical report regarding the victim girl got marked during the evidence of the Investigating Officer-PW17 which is available and it is at Ex.P12. The version of PW17 about marking of the document [Ex.P12] and its contents are not disputed, nor contrary has been proved by the defence. These material evidence being proved facts are supported the prosecution case to link the guilt of the accused that the victim girl was subjected to sexual assault by the accused. The public, including PW5 had beaten the accused and gave him to police because of said incident.
16. The official witnesses are:-
(a) Srinivas Reddy-ASI-CW14 who deposed as PW7 and Suresh Baloorgi-Head Constable-CW15 who deposed as PW6, are the material witnesses who have apprehended the accused. On perusal of their [PWs-6 and 7] chief examination, it is evident that on 18.2.2015, when they were on duty, they on receiving message from PSI [PW13] that in the Kalappa Layout, near Elekrishnappa's house, there was galata and public were beating a person to bring him, they went there and found that, the accused was beaten by the public on the ground that, the accused had committed sexual assault on the victim girl-PW2. The accused was taken to the police station and produced before the Investigating Officer and thus, they have deposed about their duty in that connection during the investigation under the Investigating Officer. In this connection, the version of PW17 is corroborating the case of the 12 Spl CC No.219/2015 prosecution that, said PWs-6 and 7 have produced the accused before him [PW17] and that he has recorded the voluntary statement of the accused after taking the custody of the accused and on enquiry in that regard. The accused confessed the guilt by giving voluntary statement and that he [PW17] has received the report from PW7 and recorded the statement of PW6 with reference to the apprehending of the accused from the said place and producing the accused before him [PW17]. No doubt there is some variation about the time factor, while they [PWs-6, 7 and 17] deposing about the time factor, as PW6 stated as per the direction of PW17, they [PWs-6 and 7] went to the spot, whereas PW7 deposed that they received the message at 3 P.M., about galata and they went to the spot. PW17 deposed that, PWs-6 and 7 apprehended the accused from the said place of incident and placed before him at 4 P.M. These are relevant facts though there are some variations about exact time factor. But, the court has to look into the entire case of the prosecution.
(b) Police Constable-Rajendra.P.S- CW16, deposed as PW14 and supported the prosecution case that, he has performed the duty of giving the FIR to the court having jurisdiction, which needs no much discussion.
(c) Another official witness is Police Constable-Bangarappa-
CW15 as PW15 has deposed about handing over the articles collected to FSL Office for expert opinion, as per the instruction of the Investigating Officer.
13 Spl CC No.219/2015(d) The WPC-Jyothi CW15 as PW10 has deposed that she took the victim girl for medical examination, which is part of her duty, as per the instruction of the Investigating Officer. The medical report of the victim girl was marked as Ex.P12, during the evidence of PW17, undisputedly.
(e) The PSI-Gurupradas.G- CW19 as Investigating Officer deposed as CW17. He has undertaken the whole investigation process and lastly the Police Inspector-Ashwanthnarayan-CW20 who deposed as PW16 has submitted charge-sheet after collecting the materials on taking charge from PW17, by considering the materials indicating the accused that, he has committed the offence on the person of the victim girl.
17. It is relevant to reproduce the material evidence of the victim child/PW2, which has supported the prosecution case about the incident, as she has narrated and also specifically explained under what circumstances she was yielded to the lust of the accused. Apart from this, her evidence is corroborated with the other material witnesses before whom she has narrated the same facts and also the eyewitnesses PWs-5 and 11 have deposed supporting the version of PW2/victim girl. There is consistency in the evidence of PW2 and her mother-PW1 and other witnesses PWs-5 to 9 and 11. It is therefore material to consider the firm and clinching evidence of PW2. The relevant portions of the evidence of PW2, are reproduced as under:
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18. The witnesses i.e., the mother and uncle and aunt of the victim girl seems to be not so educated to know the legal consequences with reference to the time of the incident. The victim girl was child cannot be expected that she would give accurate time. This defence because of the said reason does not have legal force. It is also notable point that there is no dispute, nor it was duly rebutted the facts deposed by PWs-1, 2, 5, 8, 9 and 11 16 Spl CC No.219/2015 that, mother, uncle and aunt of the victim girl [PWs-1, 8 and 9] were out of their house as they went to attend the death ceremony of their relative, hence, they were not in the house on the date of incident and returned back afternoon. The victim girl stated that at 1 P.M., on that day, [date of incident], when she went near water tank, the accused called her by hand signal [by clapping etc., ZÀ¥Áî¼É vnÖ, anPÉ ºÉÆqÀÉzÀÄ) and took her inside his house and committed sexual assault on her and PW5 rescued her and on intimation police came to the spot and took the accused and victim girl to the police station. If the evidence of PWs-1, 2, 5, 8 and 9 is perused, the common thing is unrebutted that PWs-1, 8 and 9 came to the house after attending funeral of their relative only after the incident and after taking the accused and victim child to the police station only the independent witnesses PWs-5 and 11 and other local public were present at the spot after that incident and PWs-5 and 11 have apprehended the accused and held him red-handedly at the place of incident i..e, the sheet house of the accused, which was rented premises of PW13. PW13 stated in the chief examination that, the accused was his tenant. It is in respect of the very premises where he [accused] had committed the said offence, which was at that time, lonely place, having nobody else and by taking the victim girl by inducing of giving chocolates. The child spoken which is already duly considered. How the child was subjected to the lust of the accused, i.e., payment of money and she was using it to purchase eatables and for her education [to purchase book and pencil]. This direct evidence of PW2-the very victim girl is unshaken and explanatory and it is not improvement 17 Spl CC No.219/2015 or contradictory to her own statement or to the statements of material witnesses PWs-5 and 11, specifically PW5 who had rescued the victim girl and caught hold the accused red-handedly. The Investigating Officer-PW17 had done investigation and collected the material evidence, specifically arrest of the accused from the place of incident, after registering the complaint of PW1; and drawn the mahazar of the spot [Ex.P2] collected the age proof of the victim girl/PW2, which showed that the age of the victim girl was below the age of 12 years; recorded witness statements, subjected the victim girl [PW2] and the accused to medical examination; send the articles to FSL for experts opinion, recording of voluntary statement of the accused; and ultimately filing of charge-sheet was by the Investigating Officer i..e, CW20. It is well- settled that, when there is direct evidence on record, the weak and no so material defective circumstantial evidence have no force of defence of innocence of the accused. The learned Public Prosecutor specifically pressed upon this settled principle and argued that, the direct evidence of PWs-2, 5 and 11 shall prevail over the circumstantial evidence of other witnesses. Even, specifically the evidence of panch witnesses, medical evidence, FSL report and experts evidence and the evidence of official witnesses and the Investigating Officer. Therefore, the material evidence of victim girl/PW2, shall be considered self-explanatory about the incident. It is the best evidence and thus prosecution has established the guilt of the accused.
18 Spl CC No.219/201519. Thus materials are placed by the prosecution on record. The prosecution by leading the evidence as referred above , has discharged the initial burden. Therefore, presumption under Secs. 29 and 30 of POCSO Act, 2012 certainly attracted in this case. At this juncture, I would like to refer the said provisions, which are touching the core of the case regarding the fact in issue that, the accused had culpable mental state and committed sexual assault on the victim girl and gave her life threat. Secs.29 and 30 of POCSO Act, 2012 reads thus:
"Sec.29 of POCSO Act, 2012: Presumption as to certain offences:- Where a person is prosecuted for committing or abetting or attempting to commit any offence under Sections. 3, 5, 7 and 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".
Sec. 30 of POCSO Act, 2012: Presumption of culpable mental state: (1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the Special Court shall presume the existence of such mental state but, it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
(2) For the purposes of this section, a fact is said to be proved only when the Special Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability".
Hence, the arguments advanced by the learned Public Prosecutor on legal aspect is acceptable that, provisions of Secs. 29 and 30 of POCSO Act, 2012 now attracted and the court 19 Spl CC No.219/2015 shall presume as to certain offences, specifically in this particular case, committing of aggravated penetrative sexual assault/rape, coming within the purview of Sec.5(m) of POCSO Act, 2012 punishable under Sec.6 of POCSO Act, 2012 and presumption of culpable mental state, this court shall presume the existence of such mental state of the accused to commit the aggravated penetrative sexual assault. Therefore, the accused to prove the fact that he had no such mental state with respect to the said act of sexual assault charged against him as an offence and the accused has to rebut the presumption of certain act coming within the definition clause of Sec.5(m) of POCSO Act, 2012, as referred above by proving the contrary to it. Therefore, whether the accused has rebutted the said presumption, is now for consideration.
20. The learned counsel for the accused has argued in this regard. The written arguments submitted by the learned counsel for the accused has been duly considered. It is in connection with the general defence of innocence of the accused. She has pressed upon that, there are material discrepancies, omissions and improvements etc., and that they are created reasonable doubts to disbelieve the prosecution case and that benefit of doubt to be given to the accused; and she has mainly focused on the points as follows:
(1) The time of the alleged incident has not been established; (2) The residence of the accused and the complainant's house are doubtful;
(3) Provisional medical report, FSL report and the entire case of the prosecution is doubtful, as witnesses have not supported the material fact.20 Spl CC No.219/2015
21. The defence of innocence of the accused is now ruled out, as because the prosecution has discharged the initial burden. Therefore, it is the accused to rebut the materials placed on record by the prosecution. In the written arguments it is high-lighted the contradictions, omissions and improvements etc., and the learned counsel for the accused specifically argued that, because of said material contradictions and improvements supporting the defence of the innocence of the accused and his false implication, the accused is entitled for acquittal.
22. It is material to note about the evidence on record with reference to the contradictions and discrepancies pressed upon by the learned counsel for the accused whether they rescue the accused or not. She referred the statement of the victim girl recorded under Sec.164 of Cr.P.C by the learned 42nd ACMM, Bangalore on 20.2.2015. In the said statement, the victim girl has stated and the relevant portion is reproduced as under:
"Even earlier whenever I used to go to his [accused] house to see TV, he misbehaved with me in a similar manner on three occasions. Whenever he used to do like this, he used to give Rs.10/- to me and used to threaten me stating that, not to inform about the same to anyone. However, I told about this with my elder sister and she informed my mother about the same. My mother scolded me and also burnt my hand with mosquito coil and warned me not to go to his house to see T.V. Hence, I stopped going to his house. That day he only called me and forcibly did all this to me".
(a) PW1/mother of the victim girl in connection with the time factor deposed that, "she went to attend the death ceremony of her relative in Mulbagulu at afternoon 2'0 clock and returned by next 21 Spl CC No.219/2015 date after 2'0 clock and during her cross-examination, regarding the time factor, she has stated that, she gone to her native place after 5'0 clock in the afternoon and she shown the house of the accused to the police between 4 to 5'0 clock in the evening".
(b) The victim girl/PW2 during her chief examination stated that, "the accused had called her by clapping and by hand signal in the afternoon when she had gone to see whether there was water in the sump and the accused misbehaved with her and she shouted because of pain and then the neighbours came and rescued her and the accused was assaulted and prior to the said incident, the accused had also committed rape on her 3 times. During the course of cross-examination, she [victim girl] has stated that, she used to go to the school at 9 A.M., and returning back at 3.30 P.M., and she knows the accused". However, she has submitted that the accused was not coming to her house; nor he was known to her mother.
(c) It is also referred to the evidence of PW3, Co-ordinator of SJPU who was asked by the Investigating Officer for counseling, the victim girl who was aged 10 years on 18.2.2015. She recorded the statement of the victim girl. During the cross-examination, this witness stated that, "the Investigating Officer called her at afternoon at 2'0 clock over phone; She stated that, the victim girl did not say the date of incident, but, it as happened on Wednesday;. In the police station, it was stated that, the date of incident was on 18.2.2015; The victim girl had not stated about the misbehaviour of the accused with her and he used to pay 22 Spl CC No.219/2015 Rs.5/- to the brother of the victim girl and Rs.10/- to the victim girl". But, it is material to note that, she [PW3] specifically denied that, she [PW3] has stated so on assumption.
(d) Regarding the evidence of material witness-PW5, it is tried to highlight about the alleged contradictions. About the contradictions and improvements, the learned counsel for the accused further argued that, "during his [PW5] cross-examination, he deposed that, "he [PW5] did not hear any screaming sound of the victim prior to that incident on any day. He also admitted that, he has not stated in the statement before police that, accused was calling the children to show T.V., in his house. It is also admitted by him that, the accused had forcibly taken the girl to his house".
(e) Regarding the evidence of PWs-8 and 9, it is argued that, PW8 is the brother of the father of the victim girl and his evidence was recorded on 28.3.2016. He [PW8] states that, "he had come back with the mother of the victim from the native place on 18.2.2015 in between 10 to 11 a.m". He also stated that, "when they came back, Mohamed had stated that, the victim was raped by the accused". He stated that, "thereafter at 3 '0' clock, he went to the police station and enquired with the victim girl. The victim stated that, when she had gone to check water in the sump, the accused had called her stating that he would give chocolate. When she went near him he did not give chocolate but he forcibly carried her to his room and misbehaved with her". In his cross-examination, PW8 has stated that, "the incident occurred on 18.2.2015". He admits 23 Spl CC No.219/2015 that "he had informed the police that, the accused had called the victim stating that he would give chocolate". He has further stated that "he has not stated before the police that the accused had called the victim to show T.V in his house".
(f) PW9 is the wife of PW8. She was examined on 28.3.2016. She stated that, "they had come back from Mulabagilu the next day of death of their grandmother at 2.00 p.m. when they came back from Muslim person who was residing by the side of their house stated that, the accused had raped the victim". She stated that "in the station when the victim was asked what happened she stated that, the accused had taken her to his house and misbehaved with her and when she shouted in pain, Muslim uncle came and rescued her and the accused had taken the victim to show T.V., in the house". During her cross-examination, PW9 stated that, "as soon as they came from native place and coming to know about the incident they have gone to the police station". She has stated on her own that, " the children never went to the house of the accused to watch the T.V, and had gone only on the said day to watch the T.V." She has denied that , "she has not given the statement before the police that Rathan Das was taking the victim to his room for past two months and had earlier also misbehaved with her".
23. However, PWs-8 and 9 are hear-say witnesses and they are supporting the prosecution case with reference to the incident that they came to know the incident through the victim girl, who narrated the incident. Principle of 'Res-gestae' under Sec.8 of the 24 Spl CC No.219/2015 Evidence Act, is attracted and their [PWs-8 and 9] evidence has to be believed, they got it informed the incident from the victim girl at the police station after their arrival, from Mulabagilu [Shiddanahalli]
24. Regarding the time factor, it is highlighted by the learned counsel for the accused that::
a. In the complaint, it is stated that the mother of the victim girl had come back from Mulbagilu at 2'0 clock at afternoon on 18.2.2015 and by the said time the accused and the victim were taken to the police station.
b. In the FIR, it is stated that, the mother of the victim girl had come to their house, back from Mulabagilu at 2.30 and they came to know that the accused and the victim were taken to police station and thereafter they had met the victim in the police station at about 3'0 clock in the evening.
c. in evidence of PW-1 dated 7.1.2014 it is stated that the mother of the victim had come at 2'0 clock in the afternoon on the date of the incident and by the said time the victim and the accused was in police station.
d. PW-2 the victim stated that the incident happened at 1'0 clock and has not stated any date and only says that, "one day last year". The evidence of PW-3 SJP coordinator state that the child was enquired from 3.50 to 7.00 on 18.2.2015.
e. PW-5 Mohamed Yusoof states that he heard the sound of a girl screaming in the afternoon and he stated that it was bout 10 to 11 months ago.25 Spl CC No.219/2015
f. The evidence of PW-6 head constable states that, he had gone to arrest the accused at 4'0 clock in the evening on 18.2.2015. [But, the specific words are to be considered and it is generalized statement during the chief examination. But, he has specifically stated in his cross-examination that:
"PÁ¼À¥Àà ¯ÉÃOmï£À°è ¸ÁªÀðd¤PÀgÀÄ M§â ªÀåQÛAiÀÄ£ÀÄß ºÉÆqÉAiÀÄÄwÛzÁÝgAÉ zÀÄ £ÀªÀÄUÉ ¦J¸ïLgÀªg À ÀÄ ªÀiÁ»w PÉÆlÖgÀÄ. CªÀgÃÉ £ÀªÀÄUÉ ¸Àzj À ªÀåQÛAiÀÄ£ÀÄß »rzÀÄPÉÆAqÀÄ §gÀ®Ä DzÉñÀ¹zÁÝg.É ¸ÀzjÀ DzÉñÀª£ À ÀÄß ¥sÉÆä£À°è ªÀiËTPÀªÁV ªÀiÁrzÁÝg.É D ¢£À £À£U À É ºÀU® À Ä PÀvðÀ ªÀåz° À èzÀÄ,Ý ¥ÉmÉÆæðAUï PÉ®¸Àz°À èzÉÝãÀÄ. C°è §ºÀ¼µ À ÀÄÖ d£ÀgÀÄ ¸ÉÃjzÀÄÝ, £ÁªÀÅ DgÉÆæAiÀÄ ºÉ¸g À £ À ÀÄß «ZÁj¹, CªÀ££ À ÀÄß d£ÀgÀÄ ºÉÆqÉAiÀÄÄwÛzÀÄz Ý jÀ AzÀ CªÀ££ À ÀÄß ©r¹ vÀAzÀÄ oÁuÉUÉ ºÁdgÀÄ ¥Àr¹zÉÝêÉ. DgÉÆæAiÀÄ£ÀÄß £ÁªÀÅ oÁuÉUÉ PÀgz É ÀÄPÉÆAqÀÄ ºÉÆÃzÁUÀ ¸ÀAeÉ 4UÀAmÉ DVgÀ§ºÀÄzÀÄ. £ÀªÀÄUÉ ¥sÉÆãÀÄ §AzÁUÀ ªÀÄzsÁåºÀßzÀ ¸ÀªÀÄAiÀÄ«zÀÄÝ ªÉÃ¼É £É£¦ À ®è." ] g. PW-7 the ASI states that he got information of the incident at 3.00 p.m., on 18.2.2015.
h. PW-8 Venkatesh who alleges to have gone to the native place along with the mother of the victim and had come back along with her states that, he had come back on 18.2.2015 morning in between 10 to 11 a,m., and by the said time, the police had taken the victim and accused. [But his entire evidence has to be evaluated, because, his evidence is under isolated form and it should be read conjointly. He stated that they returned back on that day in the morning 10-11 a.m., from their native (£ÁªÀÅ Hj¤AzÀ ªÀÄgÀ½ §AzÀª É À Å) and at that stage, PW5 intimated the incident and police took the accused and victim girl to the police station. The relevant portion is reproduced as under:
" ¥ÉÇð¸ÀgÀÄ C°èUÉ §AzÀÄ DgÉÆæAiÀÄ£ÀÄß ¥ÉÇð¸ïoÁuÉUÉ PÀgÉzÀÄPÉÆAqÀÄ ºÉÆÃVzÁÝgÉAzÀiÀ ºÉýzÀ£ÀÄ. DzÀÝjAzÀ £Á£Ài, £À£Àß ºÉAqÀw ªÀÄvÀÄÛ £À£Àß CwÛUÉ ¥ÉÇð¸ïoÁuÉUÉ ºÉÆÃzɪÀÅ. DUÀ ªÀÄzsÁåºÀß ¸ÀĪÀiÁgÀÄ 3 UÀAmÉ DVgÀ§ºÀÄzÀÄ. oÁuÉAiÀÄ°è DgÉÆæ ªÀÄvÀÄÛ £ÉÆAzÀ ¨Á®Q EzÀÝgÀÄ. DUÀ 26 Spl CC No.219/2015 £ÁªÀÅ £ÉÆAzÀ ¨Á®QAiÀÄ£ÀÄß F §UÉÎ «ZÁj¹zɪÀÅ." Thus, it refers to their arrival only after 2 P.M.] i. PW-9 wife of PW-8 states that, they had come home at 2.00 p.m., and by the time the police had taken the accused and the victim.
Thus referring the portions of the evidence of these witnesses, the learned counsel for the accused argued that, there was no consciences regarding the time of the alleged incident and the presence of said witnesses. Therefore, there is considerable doubt with respect to the time of the alleged incident. On the contrary, the learned Public Prosecutor advanced arguments to meet out these discrepancies stating that, "they are not so material and entire gist of the prosecution case has to be weighed", which is acceptable. On due perusal of the said aspect, these discrepancies are considered to be not so material as because there is no cross-examination to rebut the version of PW17. There is no effective cross-examination of PWs-6 and 7 to disbelieve their version about apprehension of the accused on the specific direction of PW17 on that day and at the place of incident. From the evidence of the victim girl [material witness] and also PWs-5 and 11, it is revealed that, the fatal incident was prior to 2.30 P.M., and also prior to arrival of PWs-1, 8 and 9 from Mulabailu and that prior to their [PWs-1, 8 and 9] arrival, the victim girl and the accused were taken to the police station. PW-2/victim girl during her cross- examination spoken that her sister was not at home as she went of the house for her work. These material aspects were not rebutted 27 Spl CC No.219/2015 and not disputed also. These facts are corroborating the prosecution case that, the incident was taken place prior to 2.30 P.M., on that place of incident on that day. It is well-settled that, the evidence of the witnesses and the materials placed shall be scrutinized and evaluated, considering its entirety. When these facts are not disputed and unrebutted, they have legal force to believe the case of the prosecution that, the accused was very well present with the victim girl at the place of the incident on that day much prior to 2.30 P.M., and PWs-1, 8 and 9 were not in the house and the sister of the victim girl was not at home and hence the accused took the advantage of the age of the child [PW2] of 10 years of age who was not having mind maturity and the accused by luring her had committed the offence of aggravated penetrative sexual assault on her in his sheet house and it was only prior to 2.30 P.M., on that day. PW17 followed the arrest formality on his [accused] apprehension on that date and it was only after 2.30 P.M., PWs-1, 8 and 9 came back to their house on that day of incident only, when the child[PW2] and the accused were taken to the police station. Hence, the defence of 'time factor' that "there was no consistency in stating of time of the incident, as it was doubtful, because of evidence of PWs-1, 2, 5 to 9, 11 and 17" etc., do not sustain, to raise reasonable doubt and to disbelieve the prosecution case, for acquittal of the accused. Hence, this defence on time factor is ruled out. Therefore, the prosecution story on its entire evaluation it is held that, the prosecution has proved the case beyond reasonable doubt.28 Spl CC No.219/2015
25. It is specifically argued by the learned counsel for the accused regarding the residence of the accused, contents of Medical Report and FSL Report and submitted that, "the accused, victim resided in the sheet house at Kalappa Layout, Basavangara, Bangalore. It is also stated that, Mohamed Yusoof resides in a sheet house in the same place and it was he who rescue the victim from the accused. PW-13 Nanjundappa states that he has not given sheet house on rent either to the accused or to the family of the victim and he also states that, he also does not know who is Mohammed Yusoof and he has not given any shed on rent to them. Therefore the place of alleged incident and their inmates itself are doubtful and the prosecution has not been successful in establishing the same." But, the material issue is the place of incident. PW13 specifically in his statement during his chief examination has stated that: "gÀvÀ£ïzÁ¸ï CAzÀgÉ DgÉÆæUÉ £ÀªÀÄä ªÀÄ£ÉAiÀÄ°è ¨ÁrUÉUÉ PÉÆnÖzÉ" and that he had constructed sheet houses in that layout for labours and security guards. The accused admittedly is working as a security guard. His [accused] apprehension by PWs-5 and 11 and public and handing over him to the police (PWs-6, 7 and 17) was also from that place only. Spot mahazar as per Ex.P3 is having evidentiary value as PWs-1 and 17 gave evidence about the place of occurrence, which is of rented house of the accused only. The material witnesses PWs-1, 5 to 9 and 11 specifically the victim girl/PW2 have stated the very sheet house of the accused i.e., the place of incident. Hence, it is clear proof of 29 Spl CC No.219/2015 place of incident. Said defence does not sustain. The prosecution has successfully established the place of incident.
26. The learned counsel for the accused further argued that, "from the evidence of PW-2 the victim it is clear that, none of the members of the house of the victim know the accused. The evidence of the owner of the shed house if considered it is clear that, neither the victim nor the accused were residing in the said house. Therefore, the entire incident is a story created on assumption and presumption with some enmity with the accused". To this the learned Public Prosecutor has met with the same by advancing the arguments, which is acceptable that, it is not the case of the prosecution that, the accused was known to the family members of PW-2/victim girl. But, material fact is that, PW2/victim girl had acquaintance with the accused, as he [accused] used to call her by clapping and hand signal and she was not aware of the complete Hindi Language which was known to the accused and that he [accused] was inducing and luring her [victim girl] by offering eatables [chocolates] and money, for which such a girl child [whose mother alone looking after her children including PW2/victim girl by doing work as earning source, outside the house], would easily yielding to such inducement, for her childhood nature to have eatable things, and school requirement, which cannot be ignored and discarded. Hence, the defence that, "the accused was unknown to the family of PW2/victim girl and that the owner [PW13] of the house of the accused was not aware of the victim girl/PW2 and her family members" etc., has no legal 30 Spl CC No.219/2015 force to reject the evidence of PW2/victim girl and her family members. But, the prosecution has proved the fact that, PW2/victim girl had acquaintance with the accused which was revealed from the evidence of the very victim girl/PW2 and her mother-PW1 and others PWs-5 to 11, which is sufficient to hold that, the accused had such an acquaintance, only with the victim girl/PW2. Hence, the requirement of acquaintance of other family members of the victim girl such as her mother, uncle and aunt, as contended by the accused, through his counsel as one of the defence does not sustain to acquit the accused.
27. The learned defence counsel has further argued that, "the prosecution has totally failed to establish that the statement of the victim has been recorded in the residence of the child and the statement has been recorded by women police. The prosecution has totally failed to establish that the police officer while recording the evidence was not in the uniform. Therefore requirement under Sec.24 of the POCSO Act, 2012 has not been fulfilled. It is therefore clear that the entire story is created by the complainant in collusion with the police. The statement of the victim is clear that, it has been made in the police station and in the presence of male police officer which is against to the applicable provisions. The requirement under Sec.26 is also not established. There is no material to show that the statement recorded by the police officer is in accordance with the statement as spoken by the child". But, as rightly argued by the learned Public Prosecutor that the evidence led in case of POCSO Act, the object of the Act and the evidence of its entirety to be 31 Spl CC No.219/2015 evaluated, and that minor defects, being ignorable, do not affect the prosecution case and it cannot be the weapon in the hands of the culprit to escape from his guilt, to defend his so-called innocence.
28. It is further specifically argued by the learned counsel for the accused that, "the medical report and evidence of the doctor clearly establishes that, any alleged act was consensual the victim was used to such sexual intercourse. Therefore the victim had the knowledge about the same and she has stated about the alleged incident at the instigation of her mother". But, it is duly clarified with cogent evidence of PW2/victim girl herself that, the accused had threatened her, not to disclose it. Apart from this, consent of minor has no legal force that the accused can make use of it. Apart from this, the evidence of PW2/victim girl in her cross-examination deposed that, she was not aware of that she should not go near to the accused whenever he called her, which is natural, as because, she [victim girl] was minor of below the age of 12 years. Hence, this defence about the alleged knowledge does not sustain under law.
29. It is further specifically argued by the learned counsel for the accused that, "the prosecution has totally failed to establish requirement under Sec.27 of POCSO Act, 2012. It is not established that, the examination of the child was conducted in the presence of the mother of the child or in the presence of any other person in whom the child reposes trust. The medical examination is also not 32 Spl CC No.219/2015 done in the presence of a women nominated by head of medical institution. As seen in the medical report, it is clear that, the medical examination has been done as per the history of the alleged case given by the police." But it is material to note that, there is no cross-examination of material witness-Ex.P17-Investigating Officer and Ex.P12 was marked during his evidence. No doubt Ex.P12 reveals, no external injury appeared; no discharge seen; and the Doctor reserved opinion till the FSL Report would come. The Doctor who examined PW2 is not examined. But, it is not fatal to the case of the prosecution. As because, Ex.P12 marked without raising any objection. It is therefore notable that, the history given by PW2-victim girl is material. Hence, this defence does not sustain to raise doubt about the prosecution case. Apart from this, the undisputed contents of Ex.P12, about history given by PW2/victim girl is material that, supported the prosecution case; it is reproduced that:
" As per the victim, she knew a neighbour named Ratan Das aged about 30 years, from 3 months. He took the victim to his house on 18.2.2015 at 1 P.M., and pressed her breasts and kissed her lips and touched her vaginal region and inserted his penis into vagina. She screamed for help. She has not taken bath or changed clothes".
Thus the victim girl gave this statement at the relevant point of time after the incident before the Doctor, at the earliest stage. It has evidentiary value to believe the prosecution case regarding the sexual assault by the accused on her person in the manner , as referred above in her statement given before the Doctor also.
33 Spl CC No.219/201530. The learned defence counsel referring Ex.P12 has argued that, "provision medical report given by the medical officer of Bowring and Lady Curzon Hospital states that there is no external injury anywhere in the body of the victim". She further argued that, "entire case of the prosecution, nowhere 'Penetrative Sexual Assault' has been established or proved. The requirement of Section 3 of the POCSO Act, therefore, has not been established. It is not a case under Sec.5 of POCSO Act. Inspite of the same, Section 5 has been included". She referred Ex.P12 that, From local examination, it is stated that the "external genitalia has no injuries. No discharge is found. Most importantly hymen was found intact. Therefore the matter was referred to further examination to FSL stating that opinion regarding sexual intercourse can only be given after obtaining report from FSL". And also she further argued referring the State FSL Report [Ex.P8] the certification of examination dated: 16.5.2015. In the said FSL Report, it was opined as follows:
1. Presence of seminal stain was not detected in item Nos. 1, 3, 4 and 6.
2. Presence of spermatozoa was not detected in item Nos. 2 and 5.
Item No. 1, 3, 4 and 6 is Nail Clippings, vaginal swab, hymenal swab and frock.
Item No.2 and 5 is vaginal smear and hymenal smear.
34 Spl CC No.219/201531. She further argued that, "Therefore the story of the victim herself that, there was penetration etc., and that, she bleeded etc., are all false and imaginary. No case has been made out as prosecution regarding any molestation or misbehaviour by the accused with the victim" etc. But, the Law itself made it clear about the ingredients of penetrative sexual assault/aggravated penetrative sexual assault; the definition in the Statute about the meaning to attract Sec.6 of POCSO Act, 2012. It is under Sec.3 of the POCSO Act, 2012. PW2/victim girl being below the age of 12 years, the offence falls under definition of Sec.5(m) of the POCSO Act, 2012 and punishable under Sec.6 of POCSO Act, 2012. The prosecution case is that, the accused luring her/inducing her [victim girl] by offering eatables/money, so that she could be induced for his lust, had committed sexual assault on her, which indicate that consent of minor on inducement. It is settled that, there need not be presence of injury or hymen rupture, as argued by the learned Public Prosecutor, which is acceptable.
32. Apart from this, the accused did not made it clear with cogent evidence even during his statement recorded under Sec.313 of Cr.P.C, while reading out the incrimination evidence spoken to by material witnesses. Why the accused was in his house with PW-2/victim girl at that time; How she [victim girl] came there and why PW2/victim girl was there and why PWs-5 and 11 would speak lie against him [accused] about the said fatal incident and caught hold of him while he was indulged in committing of said criminal heinous act on the victim girl [PW2] in his house. Thus, in 35 Spl CC No.219/2015 the absence of these facts being clarified, it is amounting to failure on the part of the accused to discharge his onus to rebut the presumption and establish the defence of innocence. The accused failed to rebut the evidence placed by the prosecution on record. So, as it is settled, as argued by the learned Public Prosecutor, that the medical reports, FSL Reports are not substantive evidence and when PWs-2/victim girl and PW-5 gave primary evidence, the discrepancies as argued the learned counsel for the accused as referred above, do not sustain, to discard the prosecution case and the evidence of PWs-1 and 5 as direct evidence shall believe that, the accused has committed aggravated penetrative sexual assault on PW2/victim girl knowingly that she was a minor, below the age of 12 years, misusing her childhood and violated her child-right to live with dignity and gave threat not to disclose the act committed on her, which was dire in nature for a child, in this case as she [PW2/victim girl] was minor. Thereby, the accused committed criminal intimidation, which is punishable under Sec.506 of IPC.
33. This Special Court shall keep in mind the object of the Statute i.e., POCSO Act, 2012 as it provides for protection of children from the offences of sexual assault, and safeguard the interest and well-being of child at every stage of the judicial process. It is relevant to reproduce the object and essence of the POCSO Act, 2012, which reads thus:
"It is necessary for the proper development of the child that his or her rights to privacy and confidentiality be protected and 36 Spl CC No.219/2015 respected by every person by all means and through all stages of a judicial process involving the child."
Further, it is the object and essence of the said Act that:
"It is imperative that the law operates in manner that the best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy, physical, emotional, intellectual and social development of a child".
34. Because of the above discussions and conclusion, arrived at on the material placed on record to hold the guilt of the accused, the arguments of the learned counsel for the accused that, "even though under Sec.29 of POCSO Act, presumption is available to the prosecution, the entire circumstances, such as uncertainty with respect to the time of the alleged incident, denial by the owner of the shed house that, any such persons are his tenants. Medical examination that, no semen or injury was found on the body of the victim and failure of the prosecution to establish that the recording of statement of child was made in her house and made by women police officer without uniform and failure of the prosecution to establish penetration or establishing of touching of private parts of the victim by the accused creates reasonable doubt on the entire story of the prosecution and therefore, the presumption is not available to the prosecution. The entire story which clearly shows that, it is created story by the prosecution. The prosecution has totally failed to establish the case and therefore, the presumption under the Act cannot be made available to the prosecution" etc., do not sustain.
37 Spl CC No.219/201535. Thus, as per the above discussions, the said material evidence specifically the evidence of the victim girl and the independent eyewitnesses clearly supported the prosecution case that, the accused has committed aggravated penetrative sexual assault on the victim girl which falls under the purview of Sec.5(m) of POCSO Act, 2012, as the victim girl was below the age of 12 years by luring her with the chocolates and also giving money to her, which is also duly considered while discussing the evidence of the very victim girl how she has explained the situation on the date of incident and prior to incident, about the misbehaviour of the accused, and committing of offence falling within the purview of Sec.5(m) of POCSO Act, 2012 punishable under Sec.6 of POCSO Act, 2012 r/w Sec.376(2) of IPC and she [PW2/victim girl] was given threat of dire consequences if she discloses the act of the accused on her person, to anybody else. There is no rebuttal evidence placed by the accused to prove his alleged innocence and that he had not committed the offence and he had no culpable mental status, as available under Secs. 29 and 30 of POCSO Act, 2012. Thus, prosecution proved the guilt of the accused beyond all reasonable doubt and he [accused] is liable for conviction under Sec.6 of POCSO Act, 2012 and Sec.376 of IPC and Sec.506 of IPC.
Hence, POINTS- 1 AND 2 ARE ANSWERED IN THE AFFIRMATIVE
36. POINT NO.3:- In the result, I proceed to pass the following:
38 Spl CC No.219/2015ORDER Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences as defined under Sec.5(l), 5(m) of POCSO Act, 2012 punishable under Sec.6 of POCSO Act, 2012 and Sec.376 of IPC and under Sec.506 of IPC.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 20th day of January, 2018 ] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
30.1.2018: HEARD AND ORDER REGARDING THE SENTENCE:
The accused/convict is produced before me. The learned counsel for the accused and the learned Public Prosecutor are present. Heard the learned counsel for the accused and the learned Public Prosecutor, on Sentence. The accused/convict through his counsel submitted that, he is a poor person and his entire family is depending on his income and prayed to show leniency in awarding the sentence.
On the other hand the learned Public Prosecutor submitted that, the prosecution has proved the guilt of the accused, which is heinous in nature, who has committed the aggravated penetrative sexual assault on the victim girl, who is below the age of 12 years 39 Spl CC No.219/2015 and hence, the accused/convict is not entitled for any leniency and maximum punishment has to be awarded.
Considering the submissions made by the learned counsel for the accused and the learned Public Prosecutor, as prosecution has proved the guilt of the accused, which is heinous in nature and Sec.6 of POCSO Act, 2012 provides for awarding sentence for not less than 10 years of imprisonment, with fine. So, also Sec.376(2) of IPC is also referring to the imprisonment for a term not less than 10 years, with reference to the offence committed on the victim girl who is below the age of 12 years. Sec.42 of POCSO Act, 2012 shall have to be considered as the provisions of both the said penal laws provides for imprisonment which is minimum being not greater in degree and it is not less than 10 years and which may extend to for life imprisonment. So also for the offence punishable under Sec.506 of IPC, it provides for awarding of imprisonment upto 2 years, as it applicable to the present case on hand, as it is mere threat given to the victim girl and fine.
In so far as victim compensation is concerned, the victim girl being the sufferer and subjected to sexual assault by the accused, is entitled for victim compensation. In the result, I proceed to pass the following:
SENTENCE
(a) The accused shall undergo Rigorous Imprisonment for a period of 10 Years and to pay a fine of Rs.4,000/-, for the offences punishable under Sec.6 of POCSO Act, 2012 and Sec.376 of IPC. In default of payment of fine amount, the 40 Spl CC No.219/2015 accused shall undergo Simple Imprisonment for a period of 3 Months.
(b) Further, the accused shall undergo Imprisonment for a period of 2 Years and to pay a fine of Rs.1,000/-, for the offence punishable under Sec.506 of IPC. In default of payment of fine amount, the accused shall undergo Simple Imprisonment for a period of 3 Months.
Both these (a) and (b) sentences shall run concurrently.
The period of detention undergone by the accused/convict in judicial custody shall be set-off against the term of imprisonment imposed on him, and the accused shall undergo the remaining sentence as provided under Sec.428 of Cr.P.C.
So far as the victim compensation is concerned, it is directed to the complainant-HAL police to file a Report with regard to the present status of the victim girl-PW2 before this court within a period of 15 Days from this day so as to make recommendation to the District Legal Services Authority, Bengaluru Urban District, Bengaluru, to pay the same, as determined by this court.
Copy of this Judgment and order on Sentence shall be supplied to the accused forthwith.
[Dictated to the Stenographer, transcript thereby corrected and then pronounced by me in the open court on this the 30th day of, January, 2018 ] [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
41 Spl CC No.219/2015ANNEXURE Witnesses examined for the prosecution:
Pw.1 Suma CW1 7.1.2016
Pw.2 Victim girl CW2 7.1.2016
PW.3 Meenakshi CW13 22.1.2016
Pw.4 Sheela.R CW12 22.1.2016
Pw.5 Mohammed Yusuf CW5 22.1.2016
Pw.6 Suresh Baloorgi CW15 22.1.2016
Pw.7 Srinivas Reddy CW14 28.3.2016
PW.8 Venkatesh CW3 28.3.2016
Pw.9 Bhagya CW4 28.3.2016
PW.10 Jyothi CW15 29.4.2016
Pw.11 Saddam Hussain CW6 18.11.2016
Pw.12 Dr.K.V.Satish CW10 7.12.2016
PW.13 Nanjundappa CW7 7.12.2016
PW.14 Rajendra.P.S CW16 7.12.2016
PW.15 Bangarappa CW17 8.3.2017
PW.16 Ashwathanarayana CW20 16.9.2017
PW.17 Guruprasad.G CW19 22.9.2017
PW.18 Sagayi Mari Additional 28.9.2017
witness
Documents marked for the prosecution:
Ex.P1 Statement given by PW1/Complaint lodged by PW1
dated: 18.2.2015
Ex.P1(a) Signature of PW1
Ex.P1(b) Signature of PW17
Ex.P2 Panchanama
42 Spl CC No.219/2015
Ex.P2(a) Signature of Pw1
Ex.P2(b) Signature of PW17
Ex.P3 Study Certificate issued by PW4-Head Mistress,
Government School, Vibhuthipura, certifying the date of birth of the victim girl as 19.7.2005, wherein the victim girl was studying Ex.P3(a) Signature of PW4 Ex.P3(b) Signature of PW17 Ex.P4 Report given by PW10 regarding collecting of the sealed articles pertaining to the victim girl from Bowring and Lady Curzon hospital and producing the same before the Police Inspector of the complainant police station Ex.P4(a) Signature of PW10 Ex.P4(b) Signature of PW16 Ex.P5 Medical Report of the accused Ex.P5(a) Signature of PW12 Ex.P5(b) Signature of the accused Ex.P5(c) Signature of PW17 Ex.P6 Statement given by PW13 under Sec.161 of Cr.P.C before the complainant police Ex.P7 Passport given to PW15 to take the sealed articles to FSL, Madiwala, Bangalore Ex.P8 FSL Report [consent marked] Ex.P9 Sample seal [consent marked] Ex.P10 Statement of the victim girl given under Sec.164 of Cr.P.C before the Learned Magistrate 43 Spl CC No.219/2015 Ex.P11 FIR Ex.P11(a) Signature of PW17 Ex.P12 Provisional Medical examination report of the victim girl Ex.D1 Relevant portion of the statement of PW5 given before the complainant police Ex.D2 Relevant portion of the statement of PW5 given before the complainant police Ex.D3 Relevant portion of the statement of PW5 given before the complainant police Ex.D1 Relevant portion of the statement of PW8 given before the complainant police Ex.D2 Relevant portion of the statement of PW9 given before the complainant police Witness examined, documents marked for the accused: NIL [YADAV VANAMALA ANANDRAO] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
.
44 Spl CC No.219/201520.1.2018 Judgment pronounced in open court:
[ Vide separate detailed Judgment] Acting under Sec.235(2) of Cr.P.C, the accused is hereby convicted for the offences as defined under Sec.5(l), 5(m) of POCSO Act, 2012 punishable under Sec.6 of POCSO Act, 2012 and Sec.376 of IPC and under Sec.506 of IPC.
[YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.45 Spl CC No.219/2015
30.1.2018 Sentence pronounced in open court:
[ Vide separate detailed Sentence]
(a) The accused shall undergo Rigorous Imprisonment for a period of 10 Years and to pay a fine of Rs.4,000/-, for the offences punishable under Sec.6 of POCSO Act, 2012 and Sec.376 of IPC. In default of payment of fine amount, the accused shall undergo Simple Imprisonment for a period of 3 Months.
(b) Further, the accused shall undergo Imprisonment for a period of 2 Years and to pay a fine of Rs.1,000/-, for the offence punishable under Sec.506 of IPC. In default of payment of fine amount, the accused shall undergo Simple Imprisonment for a period of 3 Months.
Both these (a) and (b) sentences shall run concurrently.
The period of detention undergone by
the accused/convict in judicial custody
shall be set-off against the term of
imprisonment imposed on him, and the
accused shall undergo the remaining
sentence as provided under Sec.428 of
Cr.P.C.
46 Spl CC No.219/2015
So far as the victim compensation is
concerned, it is directed to the
complainant-HAL police to file a Report with regard to the present status of the victim girl-
PW2 before this court within a period of 15 Days from this day so as to make recommendation to the District Legal Services Authority, Bengaluru Urban District, Bengaluru, to pay the same, as determined by this court.
Copy of this Judgment and order on Sentence shall be supplied to the accused forthwith.
[YADAV VANAMALA ANANDRAO]] LIV ADDL., CITY CIVIL & SESSIONS JUDGE, [CCH:55] SITTING IN CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT.
47 Spl CC No.219/2015