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The Police Inspector, Parappana Agrahara police station has filed charge-sheet against the accused for the offences punishable under Secs. 366, 376 of IPC and Secs. 4, 6 of POCSO Act, 2012 and Secs. 9, 10 of Prohibition of Child Marriage Act, 2006.

2. Gist of the prosecution case is that:

The accused, in between 15.5.2015 to 2.7.2015 under the guise of love affairs and roaming around CW2/Victim girl aged 16 years, who is the minor daughter of CW1 and CW3 and inspite of sending CW2 on coming to know about the love affairs to Bommasandra, Mulabagilu Taluk, Kolar District i..e, the place of grand mother of CW2, the accused without stopping it, came to the house of the grandmother of CW2 and kidnapped her from her legal guardian and induced CW2 of marriage with him with an intent that she would be seduced or forced to have illicit sexual intercourse with the accused and took her [CW2/victim girl] to the building belonging to CW7-Shekar Reddy, located at 4th Floor in Naganathapura, Bangalore, by taking it on rent and kept CW2/victim girl in the said house and got her marriage, with a sexual intent, knowing that she was 16 years of age and a child after getting her married, the accused committed rape/aggravated penetrative sexual assault/ on her repeatedly, knowingly that she was a minor and against her will. Hence, on the basis of the complaint lodged by the complainant/father of the victim girl, a case in Cr.No.260/2015 was came to be registered against the accused. During the course of investigation, after tracing out the victim girl, and on enquiring and recording of her statement about the incident, the accused was arrested and he was taken to the judicial custody. After collecting the materials, the Investigating Officer has filed charge-sheet against the accused. Cognizance was taken. The accused was granted with bail.

5) What Order?

8. My findings on the above points are as under:

Point Nos.1 to 4: In the NEGATIVE Point No.5: As per the final order, for the following:

REASONS

9. POINT NOS.1 TO 4:- As these Points are inter- linked to each other, they are taken up for common discussion to avoid repetition of facts. It is the specific case of the prosecution that, "The accused, in between 15.5.2015 to 2.7.2015 under the guise of love affairs and roaming around CW2/Victim girl aged 16 years, who is the minor daughter of CW1 and CW3 and inspite of sending CW2/victim girl to Bommasandra, Mulabagilu Taluk, Kolar District i..e, the place of grand mother of CW2, on coming to know about the love affairs to the accused without stopping it, came to the house of the grandmother of CW2 and kidnapped her from her legal guardian and induced CW2 of marriage with him with an intent that she would be seduced or forced to have illicit sexual intercourse with the accused and took her [CW2/victim girl] to the building belonging to CW7-Shekar Reddy, located at 4th Floor in Naganathapura, Bangalore, by taking it on rent and kept CW2/victim girl in the said house and got her marriage, with a sexual intent, knowing that she was 16 years of age and a child after getting her married, the accused committed rape/aggravated penetrative sexual assault/ on her repeatedly knowingly that she was minor and against her will". Hence, the prosecution has to discharge its initial burden and only when it is discharged, the presumption under Secs.29 and 30 of POCSO Act, 2012 can be raised. Therefore, whether the prosecution is able to discharge its burden is a question to be considered on the basis of the available evidence on record. If the prosecution is able to discharge the burden, then the onus shifts on the accused to rebut these presumptions that, he is innocent and he has been falsely implicated. Hence, it is proceeded to consider and evaluate the evidence placed on record by the prosecution whether the prosecution is able to discharge the initial burden to convict the accused.

10. The prosecution has adduced the evidence of the very victim girl [CW2] as PW1 and her father/complainant/[CW1] as PW2 and her mother [CW3] as PW3. All these material witnesses t have spoken about their relationship inter-se between them. PW1/victim girl was studied upto 8th standard and she was aged about 18 years during the year 2015 and she was failed in the 8th standard and her[victim girl] father/CW1/PW2 was car driver and going was going out of the house at 7.30 A.M., and he was retuning back to house in between 9 to 9.30 P.M., in the night and her mother/CW3/PW3 was going to household works and they are residing in their own house. They have identified the accused as, they were residing in the rented house [rented premises] owned by the accused about 8 years back. Hence, they have acquaintance with the accused. They have specifically stated during their chief examination that, during the year 2015, as there was school vacation, the victim girl/Pw1 went to Bommasandra, Mulabagilu Taluk, the native of the mother of PW2. It is specifically stated by PW1 that, she failed in her exams, and her parents-PWs-2 and 3 scolded her and getting disappointed, she went to her grandmother's house at Bommasandra, Mulabagilu and resided there for 2 to 3 days and returned back to her house and her grandmother did not intimated her stay to PWs-2 to 3. After returning back, she [PW1/victim girl] came to know that, her parents had lodged a complaint. Hence, she was taken to the police station. She [PW1/victim girl] stated about her stay at her grandmother's house, because her father and mother scolded her etc. Thereafter, she was taken to the hospital for medical examination and also placed before the Learned Magistrate for recording of her statement under Sec.164 of Cr.P.C She gave the statement as per the say of the police, before the Learned Magistrate. Her [PW1/victim girl] statement recorded by the Learned Magistrate under Sec.164 of Cr.P.C, is at Ex.P1. She denied that she gave statement before the SJPU as per Ex.P2 stating that, "the accused had kidnapped her, and got her marriage and committed rape/aggravated penetrative sexual assault on her, knowingly that she was minor" etc.

12. So, also her [PW1] mother[PW3] has spoken that, the accused had not committed any offence of kidnap of the victim girl; nor he had any physical contact with her [victim girl]. PW3 has also denied that, she has given statement under Sec.161 of Cr.P.C as per Ex.P5 that the accused had committed the offence of kidnap and that he had physical contact with her daughter/ victim girl.

13. PWs-1 to 3 have specifically deposed that, the accused did not commit the offence of kidnap of the victim girl; nor he had marriage and physical contact with her [victim girl]. Hence, these witnesses have totally turned hostile to the prosecution case. But, specifically on their own, PWs-1 to 3 have deposed that, PWs-2 and 3 have performed the marriage of the victim girl with the accused after attaining the age of majority by the victim girl and she is leading martial life with the accused and they [victim girl and the accused] are having a 7 months male child and the accused is looking after the victim girl with due care. These three witnesses are declared as hostile witnesses with due permission of this court, the learned Public Prosecutor put suggestions that, "the accused having acquaintance with the victim girl, kidnapped her and got her marriage and that he committed rape/aggravated penetrative sexual assault on her [victim girl], knowingly that she was a minor" etc. but, they have denied the said suggestions.