State Of Karnataka vs Janardhan Devu Marathi
2021 Latest Caselaw 5432 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

      DATED THIS THE 4TH DAY OF DECEMBER, 2021

                        PRESENT

 THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
                          AND
        THE HON'BLE MS. JUSTICE J.M.KHAZI

           CRIMINAL APPEAL No.100140/2019

BETWEEN:

STATE OF KARNATAKA
REPRESENTED BY THE
POLICE SUB-INISPECTOR,
SIRSI RURAL POLICE STATION,
UTTARA KANNADA DISTRICT, KARWAR,
THROUGH THE ADDL.
STATE PUBLIC PROSECUTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
                                            ...APPELLANT
(BY SRI.V.M.BANAKAR, ADDL. SPP)

AND

JANARDHAN DEVU MARATHI
AGE: 32 YEARS, R/O: BAILGADDE,
POST: DANALLI, SIRSI TALUK
PINCODE 581401
                                          ...RESPONDENT
(BY SRI.VISHWANATH HEGDE, ADVOCATE)

      THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER OF ACQUITTAL DATED 15.03.2018
                              2


PASSED BY THE SPECIAL JUDGE, UTTARA KANNADA, KARWAR, IN
SPL. CASE NO.22/2017; B) TO SET ASIDE THE JUDGMENT AND
ORDER OF ACQUITTAL DATED 15.03.2018 PASSED BY THE
SPECIAL JUDGE, UTTARA KANNADA, KARWAR, IN SPL. CASE
NO.22/2017; AND C) CONVICT THE RESPONDENT/ACCUSED FOR
THE OFFENCES P/U/S 376 OF IPC & U/S 4 & 6 OF POCSO ACT,
2012.

    THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
SURAJ GOVINDARAJ J., DELIVERED THE FOLLOWING:

                       JUDGMENT

1. The State is on appeal aggrieved by the judgment of

the Special Judge, Uttara Kannada, Karwar (for brevity

'trial Court') dated 15.03.2018 passed in Spl.Case

No.22/2017.

2. The said proceedings in Spl.Case No.22/2017 had been

initiated subsequent to the Sirsi Rural Police having

filed the charge sheet against the accused alleging

commission of the offence punishable under Section

376 of Indian Penal Code (for brevity 'IPC') and

Sections 4 and 6 of Protection of Children from Sexual

Offences, Act 2012 (for brevity 'POCSO' Act).

3. Upon trial being held, the trial Court has acquitted the

accused.

4. Though Sri.V.M. Banakar, learned Additional SPP would

submit that the said judgment itself is bad in law, he

points out that:

4.1. State was not given an opportunity to prosecute

the matter in a proper and required manner,

inasmuch as after the evidence of the

complainant witnesses were led, the prayer of

the prosecutor to issue summons to other

witnesses named in the charge sheet was refused

on the ground that no useful purpose will be

served by examining the remaining witnesses

even though the DNA report is positive, since the

victim has herself turned hostile to her

pregnancy.

4.2. Upon such rejection, the prosecutor also filed an

application under Section 311 of Cr.P.C. to

examine the DNA expert and for recalling CWs.16

to 21, 23, 28 to 30 being the official and scientific

witnesses. On 01.03.2018, the said application

came to be again dismissed by referring to the

decision of this Court reported in 2016 (2)

KCCR 1401 in the case of Devappa Halageri

vs. State of Karnataka, Koppal Rural Police

and the decision of the Hon'ble Kerala High Court

reported in 2013 CLJ 4286 in the case of Babu

vs. State of Kerala.

4.3. He therefore submits that solely on this ground

the Appeal needs to be allowed and the matter

remitted for fresh Trial.

5. Per Contra Shri Vishwanath Hegde, learned counsel for

the Respondent accused supported the orders of the

Trial court and submitted that the Appeal is required to

be dismissed

6. Heard the counsel for both parties and perused the

records.

7. A perusal of the orders above indicates that the trial

Court was of the opinion that since the victim and all

other material witnesses have turned hostile to the

prosecution story, no useful purpose will be served by

examining the DNA expert and other official witnesses.

8. In the present case, the allegations made against the

accused are as regards the offence under the POCSO

Act, meaning thereby that the accused had committed

sexual assault on the minor victim leading to her

pregnancy.

9. A perusal of the trial Court records which have been

secured would indicate that there is a report of the

Forensic Science Laboratory, DNA Centre, Bengaluru

dated 14.03.2017 stating that the victim is the

biological mother and the accused is the biological

father of the male baby fetus. The fetus having expired

in the womb of the victim, which was found out during

the course of carrying out an ultrasound scan in the

course of pregnancy, in pursuance of which the doctors

carried out the termination of the pregnancy and the

fetus was preserved.

10. The decision of the Hon'ble Kerala High Court reported

in 2013 CLJ 4286 (supra) is also out of a proceeding

initiated for offences under Sections 376 and 417 of

IPC. The prosecutrix therein being a major of age had

alleged that the accused on the false promise of

marriage had sex with her thereby amounting to rape.

It is in such circumstances that the Hon'ble Kerala High

Court held that there was a voluntary participation of

the prosecutrix and as such there was no offence made

out under Section 375 of IPC. It is in that background

that the Hon'ble Kerala High Court held that there was

no purpose which would be served by examining PW.4

therein who had issued the certificate after conducting

the DNA test.

11. In our considered opinion, the said decision would not

be applicable in the present facts. More so, for the

reason that these are proceedings initiated under the

POCSO Act. The consent or otherwise of the minor

victim would have no bearing on the prosecution.

12. The other decision relied upon by the trial Court is one

rendered by this Court reported in 2016 (2) KCCR

1401 (supra). That was a case where the accused

had contested an application moved by the Public

Prosecutor seeking permission to conduct the DNA

examination of the victim, child delivered by the victim

as also the accused in order to demonstrate the

parentage and proving that the child is born on account

of the accused impregnating the victim.

13. This Court taking into account the objection of the

accused to such an examination, being of the

considered opinion that the DNA analysis would amount

to self-incrimination and thereby being in violation of

Article 20(3) of the Constitution of India, allowed the

application and prohibited the prosecution from relying

upon any DNA test.

14. In the present matter, firstly there is no objection by

the accused. Hence, the said decision would not apply.

15. In the famous decision of State of Bombay V/s Kathi

Kalu Oghad reported in AIR 1961 SC Page 1808,

(paragraph 10, 11, 12, 13 and 16) a 11 judge bench of

the Supreme Court of India held as under:

10. "To be a witness" may be equivalent to "furnishing evidence" in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. "Furnishing evidence" in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that -- though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject -- they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of Law and the law courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the Constitution-makers were aware of the existing Law, for example, Section 73 of the Evidence Act or Sections 5 and 6 of the Identification of Prisoners Act (33 of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so: "Measurements" include finger impressions and foot-print impressions. If any such person who is directed by a Magistrate, under Section 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the

taking of the measurements or photographs, it has been declared lawful by Section 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly, Section 73 of the Evidence Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison.

11. The matter may be looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not "to be a witness". "To be a witness" means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said "to be a witness" to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma case [(1954) SCR 1077] that the prohibition in clause (3) of Article 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of Section 139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and

therefore, he cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in Court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observations of this Court in Sharma case [(1954) SCR 1077] that Section 139 of the Evidence Act has no bearing on the connotation of the word "witness" is not entirely well-founded in Law. It is well established that clause (3) of Article 20 is directed against self-incrimination by an accused person. Self- incrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in Court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a "personal testimony". The giving of a "personal testimony" must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression "to be a witness".

12. In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion

of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based an other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of "testimony".

13. Similarly, during the investigation of a crime by the police, if an accused person were to point out the place where the corpus delicti was lying concealed and in pursuance of such an information being given by an accused person, discovery is made within the meaning of Section 27 of the Evidence Act, such information and the discovery made as a result of the information may be proved in evidence even though it may tend to incriminate the person giving the information, while in police custody. Unless it is held that the provisions of Section 27 of the Evidence Act, insofar as they make it admissible evidence which has the tendency to incriminate the giver of the information, are unconstitutional as coming within the prohibition of clause (3) of Article 20, such information would amount to furnishing evidence. This Court in Sharma case was not concerned with pronouncing upon the constitutionality of the provisions of Section 27 of the Evidence Act. It could not, therefore, be said to have laid it down that such evidence could not be adduced by the prosecution at the trial of the giver of the information for an alleged crime. The question whether Section 27 of the Evidence Act was unconstitutional because it offended Article 14 of the Constitution was considered by this Court in the case of State of Uttar Pradesh v. Deomen

Upadhyaya. It was held by this Court that Section 27 of the Evidence Act did not offend Article 14 of the Constitution and was, therefore, intra vires. But the question whether it was unconstitutional because it contravened the provisions of clause (3) of Article 20 was not considered in that case. That question may, therefore, be treated as an open one. The question has been raised in one of the cases before us and has, therefore, to be decided. The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of clause (3) of Article 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of Section 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion had been used in obtaining the information.

16. In view of these considerations, we have come to the following conclusions:

(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of Law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

(2) The mere questioning of an accused person by a

police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not "compulsion".

(3) "To be a witness" is not equivalent to "furnishing evidence" in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.

(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression "to be a witness".

(5) "To be a witness" means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

(6) "To be a witness" in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.

(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.

16. The XI Judge Bench of the Apex Court has categorically

held that providing of a thumb impression or

impression of the palm or foot or fingers or specimen in

writing or exposing a part of the body of an accused

person for the purpose of identification would not

amount to testimonial compulsion.

17. The Apex court has categorically distinguished between

the incriminating testimony and evidence collected

during the course of the investigation and has held that

it is only the testimony which is a testimonial

compulsion that would come within the ambit and

purview of Article 20(3) of the Constitution of India and

not evidence collected including voice samples, blood

samples, etc.

18. Such being the case, the collection of samples for

conducting a DNA test is also a normal investigative

methodology adopted by the investigating agencies.

Though of course such scientific or forensic reports on

the basis of said samples would not alone be sufficient

to convict or acquit an accused. The same corroborated

by surrounding facts could be a ground for acceptance

of such scientific reports.

19. In view of the above background, both the decisions

which have been relied upon by the trial Court for

rejecting the request for issuance of summons to the

official and scientific witnesses as also rejection of the

application under Section 311 of Cr.P.C. for recall of

the witnesses, is not sustainable.

20. In the above circumstances, it would be required for

this Court to remand the matter for the trial Court with

a direction to the trial Court to issue summons to all

the remaining witnesses and to expeditiously conduct

the trial taking into account that this is a matter of the

year 2017.

21. Needless to say that the accused would be at liberty to

cross-examine any of the witnesses summoned by the

prosecution.

22. Hence, we pass the following order:

22.1. The judgment dated 15.03.2018 passed by the

Special Judge, Uttara Kannada, Karwar in

Spl.Case No.22/2017 is set aside.

22.2. The application filed by the prosecution under

Section 311 of Cr.P.C. on 01.03.2018 is allowed.

22.3. CWs.16 to 21, 23, 28 to 30 are recalled. The trial

Court is directed to issue summons to the said

witnesses at the earliest and conduct the

proceedings.

22.4. The appeal is allowed.

Sd/-

JUDGE

Sd/-

JUDGE

sh