IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.746 OF 2019 BETWEEN:
Srinivasa, S/o Late Gangappa, Aged about 41 years, Agriculturist, R/at Gowdagere village, Manchenahalli Hobli, Gauribidanur Taluk, Chikkaballapura District-562 101 (By Sri. Kalyan R, Advocate) AND:
State of Karnataka, Represented by Circle Inspector of Police, Gauribidanur, Manchenahalli Police Station, Manchenahalli, Gauribidnur Taluk, Chikkaballapura District-562 101 Represented by State Public Prosecutor Hon’ble High Court of Karnataka Bengaluru-560 001.
(By Sri. M. Diwakar Maddur – HCGP) ...Appellant ...Respondent This Criminal appeal is filed under Section 374(2) of Criminal Procedure Code, praying to set aside the impugned judgment and sentence dated 09.01.2019, passed by the I Additional District and Sessions Judge, Chikkaballapura in Spl.S.C.No.80/2018, convicting the appellant/accused for the offence punishable under Section 377 of IPC and Section 4 and 7 of POCSO Act.
This Criminal appeal coming on for Orders, this day, the Court delivered the following:
JUDGMENT This appeal has been preferred by the appellant- accused challenging the legality and correctness of the judgment passed by I Additional District and Sessions Judge, Chikkaballapura in Spl.SC.No.80/2018 dated 09.01.2019.
2. I have heard the learned counsel for the appellant and learned High Court Government pleader for respondent-State.
3. The gist of the case as per the case of the prosecution is that, victim was four years at the time of alleged incident and was residing at Gowdagere Village.
On 04.11.2018, at about 12.30 p.m., when the victim was playing in front of the house of CW4, accused under the guise of providing chocolates took her to his land bearing Sy.No.145/4 and committed unnatural sexual offence in the cattle shed by putting his private part in her mouth and even in her private part and committed the penetrative sexual assault by touching her vagina, breast indecently and thereby committed the aforesaid offences.
4. On the basis of the complaint, the case was registered in Cr.No.227/2018 and after investigation, charge sheet has been filed. The Special Court took cognizance and secured the presence of the accused and after hearing both the sides charge was framed and read over and explained to accused. Accused pleaded not guilty and claimed to be tried and trial was fixed. In order to prove the case, prosecution got examined all the 17 witnesses and got marked 15 documents.
Thereafter, the statement of the accused was recorded. Accused has not lead any evidence, in order to get marked any documents.
5. After hearing learned counsel appearing for the parties, accused was convicted and sentenced for the alleged offence. The main grounds urged by the learned counsel for the appellant is that, Court below without following the procedure laid down in the law, hurriedly disposed the case, without giving any proper opportunity. Though PW2 has been examined and has supported the case of the prosecution, but the cross examination is taken as nil and opportunity was not given to the accused for cross examination. In that light, a prejudice and injustice has been caused to him. It is his further submission that, the alleged incident is not punishable with death. But the trial court while passing the sentence has observed that in rarest of the rare cases accused is convicted for death sentence. It is his further submission that though the alleged incident has taken place on 04.11.2018, but the complaint has been registered belatedly after four days i.e., 08.11.2018, that itself, clearly goes to show that after deliberations and discussions, the said complaint has been registered. It is further submitted that earlier the case was registered for the offence punishable under Sections 4 and 12 of POCSO Act, 2012 and also under Section 376 of IPC. But subsequently at the time of filing of the charge sheet, offence punishable under Section 377 of IPC and under SectionS 4 and 7 of the POCSO Act, have been incorporated only to see that punishment which is going to be imposed must be 20 years. Though there is no material to convict the accused for alleged offence. It is further submitted that learned counsel who has appeared on behalf of appellant-accused has not properly cross-examined all the witnesses and in that light, he requests to remit back the case for fresh disposal in accordance with law.
On these grounds, he prays to allow the appeal and to set aside the judgment of conviction and order of sentence.
6. It is the submission of learned High Court Government Pleader for respondent-State that the appellant-accused took the minor victim girl and sexually assaulted her. The victim girl has been examined as PW2. She has also supported the case of the prosecution. It is further submitted that there is ample material to connect the accused to the alleged crime. It is his further submission that the accused under the guise of giving chocolates, committed unnatural sexual offence, which is considered to be serious on the eye of the law, that no lenience should be shown. It is his further submission that, there are no good grounds to interfere with the judgment of the trial Court. On these grounds, he prays to dismiss the application.
7. I have carefully and cautiously gone through the submissions made by the counsel appearing for the parties and perused the records.
8. In order to prove the case of the prosecution, prosecution got examined in all 17 witnesses. PW-1 is the complainant. On the say of the victim, complainant has lodged the complaint as per Ex.P1. He is also witness to the spot mahazar Ex.P2. During the course of cross examination, nothing has been elicited so as to discard the evidence. PW2 is the victim; she has also supported the case of the prosecution. But unfortunately, the said witness has not been cross- examined for the reasons best known to learned counsel who was appearing for the accused. PW3 – mother of the victim, she has also reiterated the evidence of PW1. PW4 is the neighbour and father of the friend of the victim. His evidence also corroborates with the evidence of PW1 and PW3. PW5 is the spot
who examined the victim. In his evidence, he has deposed that he examined victim on 09.11.2018 at about 11.00 am with history of sexual assault by the accused. During the course of cross examination, nothing has been elicited from the mouth of this witness. PW8 is also the doctor, who examined the accused and issued a certificate as per Ex.P5 and P6. PW9 is also the doctor, who assessed the age of the victim and issued a certificate as per Ex.P8 and Ex.P8(b). PW10 is also the doctor, who helped in arriving to the conclusion of the age determination of PW2. PW11 is the Shirastedar, who has issued property extract as per Ex.P9 to Ex.P11. PW12 is the head constable, who has apprehended the accused and gave report as per Ex.P12. PW13 is the women constable, who took the victim after the Mahazar at Ex.P2 to the hospital. PW14, who has assisted in drawing the panchanama/mahazar at Ex.P2. PW15 is women ASI, who has recorded the statement of the victim at Ex.P13. PW16 is the CPI, who investigated the case and filed the charge sheet as against the accused. PW17 is PSI, who received complaint and registered the case and issued FIR as per Ex.P15.
9. The main contention of the learned counsel for the appellant is that no full opportunity has been given to the accused and his counsel to put forth his case and fully cross examine the witnesses and the said judgment has been passed hurriedly. On going through the order sheet of the trial Court, it indicates that after filing of the charge sheet, case was taken up on the board on 01.01.2019 and after securing the presence of the accused, a counsel was appointed, who is a panel advocate to defend the accused. Thereafter, after hearing both the sides, charge was framed and immediately the case was fixed for trial and on 04.01.2019 PW Nos.1 to 6 is examined and on 05.01.2019 PW Nos. 7 to 12 witnesses has been examined and on 07.01.2019 PW Nos.13 to 17 witnesses has been examined and the case was posted for statement of accused on 08.01.2019. Even on 08.01.2019, statement was recorded and the arguments were also heard and it was posted for judgment. On 9.01.2019, the judgment was delivered.
10. On going through the order sheet and other materials, it indicates that, the accused has not been given full opportunity to defend himself properly by engaging an able and eligible advocate to represent. Without discussing anything much on the matter and by going through the evidence of PW2, it indicates that, the victim has supported the case of the prosecution and the same has been recorded for the reasons best known to the counsel that he has submitted the cross examination as nil. Record shows that learned counsel, who was appearing for the accused has not applied his mind and has not properly and effectively conducted the trial in accordance with law. The appellant counsel has not realized that the life and death of accused is involved in such a serious offence that it is punishable upto 20 years. The manner in which the case has been conducted, that itself shows that the learned counsel, who was appearing on behalf of the accused has taken the case in a casual manner and has not properly represented and not effectively cross examined all the witnesses. In that light, liberty is to be given to the accused to defend properly. No doubt, the Court has appointed the counsel on the panel, but the way, in which the case has been conducted, it creates a doubt whether learned counsel, who was appearing on behalf of the accused, was knowing the magnitude and the effect of the case and its consequences. In that light also, matter requires to be remitted back to the court below.
11. In the light of the discussion made by the learned counsel, appeal is allowed and the judgment passed by I Additional District and Sessions Judge, Chikkaballapur in Spl.SC.No.80/2018 dated 09.01.2019 is set aside and matter is remitted back to the Court below, with a direction that the appellant, if he is willing to appoint the counsel of his choice, he may be given the liberty to appoint. If he is unable to appoint, then under such circumstances, an able and eligible counsel may be appointed on behalf of the accused to represent properly and after giving full opportunity to cross examine all the witnesses once again, a legal order may be passed in accordance with law.
Registry is directed to send back the lower court records forthwith.
In view of disposal of the main petition, I.A.No.2/2019 does not survive for consideration, accordingly, IA.No.2/2019 is disposed off.
Sd/-
JUDGE ag