Karnataka High Court
State By Superintendent Of Police vs Manjunath on 25 July, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2024:KHC:29278
CRL.A No. 1655 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
CRIMINAL APPEAL No. 1655 OF 2018
BETWEEN:
STATE BY SUPERINTENDENT OF POLICE
KUMARASWAMY LAYOUT POLICE STATION
BENGALURU.
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BENGALURU -1.
...APPELLANT
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI (BY SRI B LAKSHMAN, HCGP)
Location: HIGH
COURT OF
KARNATAKA AND:
MANJUNATH
AGED ABOUT 51 YEARS
R/AT No.360, MASJID ROAD
SARABANDEPALYA, BSK II STAGE
BENGALURU - 560 070.
...RESPONDENT
(BY SRI LOKESHA K, ADVOCATE)
THIS CRL.A. IS FILED U/S.378(1) AND (3) Cr.P.C
PRAYING TO GRANT LEAVE TO FILE AN APPEAL AGAINST THE
JUDGEMENT AND ORDER DATED 27.04.2018 IN
SPL.C.C.No.88/2017 PASSED BY THE LIII ADDITIONAL CITY
CIVIL AND SESSIONS JUDGE, BENGALURU ACQUITTING THE
RESPONDENT FOR THE OFFENCE P/U/S 354-A OF IPC R/W
SECTION 9(m) R/W SECTION 10 OF POCSO ACT, 2012 AND
ETC.,
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NC: 2024:KHC:29278
CRL.A No. 1655 of 2018
THIS APPEAL COMING ON FOR DICTATING JUDGMENT
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR)
1. This appeal is filed by the State challenging the judgment of acquittal dated 27.04.2018 passed in Special C.C.No.88/2017 by the LIII Additional City Civil and Sessions Judge, Bengaluru, whereunder, the respondent - accused has been acquitted of the offence punishable under Section 354A of the Indian Penal Code, 1860 (for short hereinafter referred to as 'IPC') r/w Section 9m r/w Section 10 of the Protection of Children from Sexual Offences Act, 2012 (for short hereinafter referred to as 'POCSO Act')
2. The factual matrix of the prosecution case is that; PW1 - complainant went along with her daughter, the victim girl to a clinic to show the blood report of her husband. After attending the clinic, she went to the house -3- NC: 2024:KHC:29278 CRL.A No. 1655 of 2018 of her brother-in-law Sri.Gosh Khan which is situated near Sarabandepalya along with her daughter ie., the victim girl. After some time, when she was talking to her sister- in-law, she found her daughter - the victim girl was missing and started searching for her near his house. At that time, the victim girl came from the house of the respondent - accused which is situated above the house of her brother-in-law, complaining pain in her private part. On an enquiry with her daughter, the victim girl told that the respondent - accused, by removing her pant and also removing his pant tried to insert his private part into the private part of the victim girl and she also noticed bruises on her private part and thereby, lodged a complaint against the respondent - accused on the same day ie., on 29.11.2016, as per Ex.P1. On receipt of the said complaint, a case came to be registered. After investigation, charge sheet has been filed against the respondent - accused for the aforesaid offences. The Sessions Court has framed the charges for the offence -4- NC: 2024:KHC:29278 CRL.A No. 1655 of 2018 under Section 354A of IPC, r/w Section 9m r/w Section 10 of the POCSO Act.
3. In order to prove the charge, the prosecution has examined PWs.1 to 12 and got marked Exs.P1 to P6 and MOs.1 and 2. The statement of the respondent - accused has been recorded as required under Section 313 of Cr.P.C. The Trial Court after hearing the arguments on both sides, has formulated the points for consideration and after appreciating the evidence on record has passed the judgment of acquittal which is challenged in this appeal.
4. Heard the arguments learned High Court Government Pleader for the appellant - complainant and learned counsel for the respondent - accused.
5. As the respondent - accused did not engage any counsel, this Court has directed High Court Legal Services Committee to appoint a counsel to represent the respondent - accused and the counsel who is on record -5- NC: 2024:KHC:29278 CRL.A No. 1655 of 2018 now, has been appointed by High Court Legal Services Committee to represent the respondent - accused.
6. Learned High Court Government Pleader for the appellant - complainant would contend that the Trial Court has pointed out the minor discrepancies and the contradictions in the evidence of PWs.1, 4 and non examination of CW6. The evidence of PW4 - victim girl coupled with the evidence of PW1 itself establish the charge. He further submitted the articles collected by the doctor - PW9 at the time of examination of the victim girl, have been handed over to the police which were sent to the Forensic Science Laboratory (for short hereinafter referred to as 'F.S.L') for examination. The F.S.L report has been received and it is produced to the Trial Court when the case was posted for recording statement of the respondent - accused under Section 313 of Cr.P.C. But, the Trial Court did not take into consideration the said requisition filed by the Investigating Officer to examine the Author of F.S.L report, to mark the F.S.L report. The said -6- NC: 2024:KHC:29278 CRL.A No. 1655 of 2018 aspect has caused prejudice to the case of the prosecution. The said F.S.L report is a material document to establish the case of the prosecution as seminal stain was detected in the undergarment of the victim girl. He contends that the Head Constable Sri.K.T.Krishnaiah (CW15) has carried those articles given by the Investigating Officer and handed over them to the F.S.L on 19.01.2017. Therefore, he prays for remand of the matter for recording the evidence of CW15 - the Head Constable Sri.K.T.Krishnaiah and Dr.Chandrashekar, Assistant Director, Biology Section, Regional Forensic Science Laboratory (for short hereinafter referred to as 'R.F.S.L'), Mysuru.
7. Learned counsel for the respondent - accused would contend that the Trial Court has rightly appreciated the evidence of PW4 - the victim girl and her mother and considering the evidence of PW9 - doctor, has rightly acquitted the respondent - accused. He has supported the reasoning assigned by the Trial Court. He contends that -7- NC: 2024:KHC:29278 CRL.A No. 1655 of 2018 the said articles collected by PW9 - doctor were handed over to the police and there is a delay in sending the said articles for examination to R.F.S.L. If the matter is remanded, it will cause prejudice to the respondent - accused as he has already undergone imprisonment for more than four years. With this, he prayed to dismiss the appeal. Learned counsel for the respondent - accused further contended that chain of custody of the articles handed over by the doctor, the Investigating Officer and to the R.F.S.L is not established.
8. Having heard the learned counsels, considering the points urged and on perusal of records, the following point arises for my consideration;
"Whether the matter requires to be remanded to lead evidence of the Assistant Director, R.F.S.L, Mysuru who has issued Certificate of Examination?"
9. My answer to the above point is in the affirmative for the following reasons;
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NC: 2024:KHC:29278 CRL.A No. 1655 of 2018 The victim girl who was aged four and half years as on the date of the incident was examined as PW4. Mother of the victim girl has been examined as PW1. PW1 - mother of the victim girl has filed a complaint as per Ex.P1. The date of incident was 29.11.2016 and the complaint has been filed on the same day. The victim girl has been sent for examination to the hospital and PW9 - doctor has examined her. PW4 - the victim girl was taken to the hospital by the Woman Police Constable ie., PW7 - Smt.Vedavathi. PW9 - doctor has examined the victim girl and she gave the report as per Ex.P2. PW9 - doctor who collected the nail clipping, vaginal smear, vaginal swab and undergarment of the victim girl and handed over the same to the Woman Police Constable - Smt.Vedavathi (PW7). The said Woman Police Constable - Smt.Vedavathi had handed over the said articles to the Investigating Officer. The Investigating Officer has handed over the said articles along with two other articles collected by the doctor who has examined the respondent - accused to CW15 - Sri.Krishnaiah, Head Constable No.4786. The said -9- NC: 2024:KHC:29278 CRL.A No. 1655 of 2018 Head Constable has handed over the said six articles to R.F.S.L, Mysuru on 19.01.2017. The acknowledgment has been issued on 19.01.2017 by R.F.S.L, acknowledging the receipt of six articles. Even though the said acknowledgment is part of the charge sheet, has not been marked and the said Sri.K.T.Krishnaiah, Head Constable has also not been examined. At the time of filing the charge sheet, the F.S.L report has not been received. The F.S.L report which was received subsequently, has been produced along with the requisition dated 29.03.2018 to the Court. There is an entry in the order sheet dated 02.04.2018 for having received the said F.S.L report along with the requisition. On that day ie., 02.04.2018, the stage of the case was for recording the statement of the respondent - accused under Section 313 of Cr.P.C. Inspite of producing the said requisition seeking examination of Dr.Chandrashekar, Assistant Director, Biology Section, R.F.S.L, Mysuru with R.F.S.L report, the Trial Court did not consider the said requisition and did not issue any witness summons to the witnesses named in the
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NC: 2024:KHC:29278 CRL.A No. 1655 of 2018 requisition and proceeded to record statement of the respondent - accused under Section 313 of Cr.P.C.
10. On perusal of the said F.S.L report dated 01.04.2017, seminal stain was detected in Item No.4 ie., undergarment of the victim. Therefore, R.F.S.L report is a material document for the prosecution to prove its case. As the said document is not marked by examining its Author, it has caused prejudice to the case of the prosecution. Therefore, the matter requires to be remanded to the Trial Court for examining the concerned witnesses namely CW15 - Sri.K.T.Krishnaiah, Head Constable and Dr.Chandrashekar, Assistant Director, Biology Section, R.F.S.L, Mysuru. As the respondent - accused was in judicial custody for more than four years, it will be considered for bail when the Trial Court considers the matter to examine the above said witnesses. In the result, the following;
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NC: 2024:KHC:29278 CRL.A No. 1655 of 2018 ORDER The appeal is allowed in part. The impugned judgment of acquittal dated 27.04.2018 passed in Special C.C.No.88/2017 by the LIII Additional City Civil and Sessions Judge, Bengaluru is set-aside. The matter is remanded to the Trial Court to the limited extent of examining CW15 - Sri.K.T.Krishnaiah, Head Constable and Dr.Chandrashekar, Assistant Director, Biology Section, R.F.S.L, Mysuru and dispose of the case afresh. The Trial Court shall secure the respondent - accused and release him on bail on he executing personal bond for a sum of Rs.50,000/-.
Sd/-
(SHIVASHANKAR AMARANNAVAR) JUDGE GH List No.: 1 Sl No.: 24