IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.1044/2019 BETWEEN:
1. SRI. MUNIRAJU S/O SHIVASHANKARAPPA AGED ABOUT 21 YEARS.
2. OBAPPA S/O BENGALURU MUNIYAPPA AGED ABOUT 51 YEARS.
3. DORESWAMY S/O OBALAPPPA AGED ABOUT 48 YEARS.
4. LAKSHMIDEVAMMA W/O OBAPPA AGED ABOUT 45 YEARS.
5. ASHWINI W/O DORESWAMY AGED ABOUT 30 YEARS.
6. PADMAMMA W/O SHIVASHANKARAPPA AGED ABOUT 43 YEARS.
ALL ARE RESIDENCE OF BETTAGEREHALLI VILLAGE MULABAGAL TALUK KOLAR DISTRICT – 536 131.
(BY SRI. M. RAMASWAMY., ADVOCATE) ... PETITIONERS AND:
STATE OF KARNATAKA BY MULBAGAL RURAL POLICE KOLAR DISTRICT – 563 131 REPRESENTED BY SPECIAL PUBLIC PROSECUTOR IN THE HIGH COURT OF KARNATAKA BANGALORE – 560 001.
(BY SRI. S. RACHAIAH., HCGP) ... RESPONDENT THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO SET ASIDE THE DISMISSAL ORDER DATED:02.02.2019, S.C.NO.1/2018 IN II ADDITIONAL DISTRICT AND SESSIONS JUDGE (SPECIAL COURT), KOLAR AND ALLOW THE APPLICATION OF THE PETITIONERS FILED U/S 311 OF CRPC, BY ALLOWING THIS CRL.P.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard Sri Ramaswamy, learned Advocate appearing for petitioner and Sri S Rachaiah, learned HCGP appearing for respondent.
2. When the matter was set down for arguments before learned trial Judge in Special Case No.1/2018 registered for the offence punishable under Sections 143, 376, 307 read with 149 IPC, an application under Section 311 Cr.P.C. came to be filed by the accused which has since been dismissed by impugned order dated 02.02.2019. Being aggrieved by said order, petitioner is before this Court.
3. As could be seen from the application, petitioner is seeking for recall of P.Ws.1, 3 to 5, 10, 12 & 15 to 17. Since P.W.1 expired, question of recall of P.W.1 does not arise. Reason which has been assigned for recall of other witnesses is on the ground that victim girl was recalled on 22.11.2018 and she has now revealed the truth and as such, deposition of P.W.2 requires to be confronted to remaining prosecution witnesses inasmuch as, there is likelihood of trial court relying upon deposition of other witnesses only to convict the accused. On perusal of deposition of P.W.2 recorded on 22.11.2018 would disclose she has reiterated her statement made before the jurisdictional Magistrate namely, statement recorded under Section 164 Cr.P.C. as also her deposition tendered before Court. In other words, she has reiterated allegations made by her in the complaint – Ex.P-1. It is trite law that prosecution will have to prove those facts alleged against the accused and on the basis of hear say evidence which may not be corroborated by the victim, it cannot be gain said by the prosecution that accused deserves to be convicted for the offences alleged. Thus, it would be open for the trial Court to evaluate the evidence tendered by the prosecution and also take into consideration deposition of P.W.2 which has since been recorded on 22.11.2018 and proceed to adjudicate keeping in mind the judicial precedents. Hence, question of recalling P.Ws.3 to 5, 10, 12 & 15 to 17 does not arise. Reasons assigned by the learned trial Judge to reject the prayer would not call for interference as it is based on sound appreciation of facts and law. No other good ground is made out to entertain this petition. Hence, it is rejected.
SD/- JUDGE *sp