State Of Karnataka vs Somanna
2022 Latest Caselaw 3563 Kant

                               1



      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 3RD DAY OF MARCH, 2022

                          BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

             CRIMINAL PETITION No.8167/2020

BETWEEN

STATE OF KARNATAKA,
THROUGH CHAMARAJANAGAR EAST
POLICE STATION
REPRESENTED BY
STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
                                              ... PETITIONER

[BY SRI. SHANKAR H.S., HCGP]


AND

1.    SOMANNA,
      S/O DODDASHETTY,
      AGE: 27 YEARS,

2.    DODDARAJU,
      S/O LATE NANJASHETTY,
      AGE: 47 YEARS,

3.    CHIKKATAYAMMA,
      W/O DODDARAJU,
      AGE: 39 YEARS,

4.    DODDATAYAMMA,
      W/O
                             2



      AGE: 51 YEARS,

5.    MALLIKARJUNA,
      S/O LATE SUBBASHETTY,
      AGE: 41 YEARS,

6.    MAHESH,
      S/O LATE DODDASHETTY,
      AGE: 30 YEARS,

7.    MAHESHI,
      W/O MAHESH,
      AGE: 22 YEARS,

8.    JYOTHI,
      W/O MALLIKARJUNA,
      AGE: 27 YEARS,

9.    VENKATAMMA,
      W/O MUDDAKAMASHETTY,
      AGE: 56 YEARS,

10.   MADEGOWDA,
      S/O LATE MUDDEGOWDA,
      AGE: 66 YEARS,

      [ACCUSED/RESPONDENTS NOS.1 TO 10
      ARE THE R/O HONGANURU VILLAGE,
      CHAMARAJANAGAR TALUK & DISTRICT- 571 440].
                                          ... RESPONDENTS

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 16.09.2019 IN
SPL.CASE NO.184/2019 PASSED BY THE PRL. DISTRICT AND
SESSIONS JUDGE, CHAMARAJANAGAR FOR THE OFFENCE P/U/S
376(n) OF IPC READ WITH 34 OF IPC AND SECTIONS 4, 6, 8, 12, 17
OF POCSO ACT AND SECTIONS 9, 10, 11 OF THE CHILD MARRIAGE
PROHIBITION ACT.
                                  3



     THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS
DAY, THE COURT MADE THE FOLLOWING:

                               ORDER

The State is before this Court in the subject petition calling

in question order dated 16-09-2019 passed by the Principal

District and Sessions Judge, Chamarajnagar in Special Case

No.184 of 2019, whereby the learned Sessions Judge declined to

permit the State to cross-examine the victim on her turning

hostile in a case arising out of the provisions of the Protection of

Children from Sexual Offences Act, 2012 ('POSCO Act' for short)

and Sections 9, 10 and 11 of the Prohibition of Child Marriage

Act, 2006.

2. Sans details, facts in brief, are as follows:-

A complaint is registered 29-04-2019 in Crime No.115 of

2019 for offences punishable under Section 376(n) read with

Section 34 of the IPC, Sections 4, 6, 8, 12 and 17 of the POSCO

Act and Sections 9, 10 and 11 of the Prohibition of Child

Marriage Act. The complaint was registered for an offence that

was committed on 02-12-2018. The allegation was that accused

Nos.2 to 10 having knowledge that the victim girl was minor got

her marriage with accused No.1 on 02-12-2018 and accused

No.1 knowing full well that the victim was a minor girl had

committed sexual assault on her many a times. In the trial,

recording of evidence of prosecution witnesses commenced on

16-09-2019 on which day the victim turns hostile. On her

turning hostile, the State seeks permission of the learned

Sessions Judge to cross-examine the witness. The learned

Sessions Judge having declined such cross-examination drives

the State to this Court in the subject petition.

3. Sri. Shankar H.S., learned High Court Government

Pleader representing the State would vehemently submit that

the order passed on 16-09-2019 runs counter to law as once the

witness turns hostile cross-examination is a right. Merely

because the proceedings are under the POSCO Act, the right of

cross-examination cannot be taken away as the very Act itself

permits such cross-examination and submits that the same be

allowed and the State be permitted to cross-examine the victim.

4. The only issue that falls for my consideration is

whether the victim under the POSCO Act can be permitted to be

cross-examined once she turns hostile. Before considering the

issue, I deem it appropriate to notice the provisions of the

POSCO Act which deals with the procedure and powers of the

Special Court. Section 33 of the POSCO Act reads as follows:

"33. Procedure and powers of Special Court.- (1) A Special Court may take cognizance of any offence, without the accused being committed to it for trial, upon receiving a complaint of facts which constitute such offence, or upon a police report of such facts.

(2) The Special Public Prosecutor, or as the case may be, the counsel appearing for the accused shall, while recording the examination-in-chief, cross- examination or re-examination of the child, communicate the questions to be put to the child to the Special Court which shall in turn put those questions to the child.

(3) The Special Court may, if it considers necessary, permit frequent breaks for the child during the trial.

(4) The Special Court shall create a child- friendly atmosphere by allowing a family member, a guardian, a friend or relative, in whom the child has trust or confidence, to be present in the court.

(5) The Special Court shall ensure that the child is not called repeatedly to testify in the court.

(6) The Special Court shall not permit aggressive questioning or character assassination of the child and ensure that dignity of the child is maintained at all times during the trial.

(7) The Special Court shall ensure that the identity of the child is not disclosed at any time during the course of investigation or trial:

PROVIDED that for reasons to be recorded in writing, the Special Court may permit such disclosure, if in its opinion such disclosure is in the interest of the child.

Explanation: For the purposes of this sub-section, the identity of the child shall include the identity of the child's family, school, relatives, neighbourhood or any other information by which the identity of the child may be revealed.

(8) In appropriate cases, the Special Court may, in addition to the punishment, direct payment of such compensation as may be prescribed to the child for any physical or mental trauma caused to him or for immediate rehabilitation of such child.

(9) Subject to the provisions of the Act, a Special Court shall, for the purpose of the trial of any offence under this Act, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session and as far as may be, in accordance with the procedure specified in the Code of Criminal Procedure, 1973 (2 of 1974) for trial before a Court of Session."

In terms of sub-section (2) of Section 33 of the POCSO Act,

the Special Public Prosecutor or as the case would be, the

counsel appearing for the accused shall, while recording

examination-in-chief, cross-examination or re-examination of

the child communicates the questions to be put to the child to

the Special Court which shall in turn put those questions to the

child. Therefore, the victim is permitted to be cross-examined

under the POSCO Act itself on her turning hostile which would

also cover the situation under sub-section (2) of Section 33 of

the POCSO Act. The Apex Court in the case of NIPUN SAXENA

v. UNION OF INDIA1 while interpreting Section 33 of the POSCO

Act has held as follows:

"47. Any litigant who enters the court feels intimidated by the atmosphere of the court. Children and women, especially those who have been subjected to sexual assault are virtually overwhelmed by the atmosphere in the courts. They are scared. They are so nervous that they, sometimes, are not even able to describe the nature of the crime accurately. When they are cross-examined in a hostile and intimidatory manner then the nervousness increases and the truth does not come out.

48. It is, therefore, imperative that we should have courts which are child-friendly. Section 33(4) POCSO enjoins on the Special Court to ensure that there is child-friendly atmosphere in court. Section 36 lays down that the child should see the accused at the time of testifying. This is to ensure that the child does not get scared on seeing the alleged perpetrator of the crime. As noted above, trials are to be conducted in camera. Therefore, there is a need to have courts which are specially designed to be child-friendly and meet the needs of child victims and the law."

(2019) 2 SCC 703

The Apex Court delineates importance of having a court

room and the atmosphere in such court room to be child

friendly. A Division Bench of this Court following the said

judgment of the Apex Court in DOULA v. THE STATE2 has held

as follows:

"45. To constitute the offence of either rape under Section 375 of IPC or penetrative sexual assault as defined under Section 5 of the POCSO Act, the victim is not required to explain in detail before the court, the horrifying act. Sexual violence is not only a dehumanising act but also intrudes into the victim's right of privacy and sanctity. Expecting the victim to explain step by step as to how the accused violated her, degrades and humiliates her. Where the victim is a helpless child or a minor, it leaves behind a traumatic experience. The courts must be sensitive towards the plight of the victim of such offence. Under the guise of eliciting evidence, she cannot be compelled to reproduce minute details of the horrendous act.

46. Probably keeping in mid the tendency of posing all kinds of questions to humiliate the victimin a bid to deal a blow to her honour and to make her relive the horror while in the witness box, Section 33 (2) of the POCSO Act is enacted to safeguard and insulate the minor victim from the same. It mandates that while recording the evidence of the child, the Special P.P or as the case may be the counsel for the accuse to communicate to the special court, the question to be put to the victim and the court shall in turn put it to the victim. Further, Section 33(6) of the POCSO Act mandates the Court not to permit aggressive

Criminal Appeal No.100260/2016 decided on 22-07-2020

questioning or character assassination of the child and to ensure maintaining the dignity of the child at all times during the trial.

47. Position of law regarding appreciation of the evidence of the child witness is well settled. A child witness, if found competent to depose to the facts and if her version is reliable, such evidence could be the basis of conviction. The only precaution which is to be taken by the court while appreciating such evidence is to rule out any possibility of tutoring. If the Court is satisfied that the evidence of the child is not the tutored version and if it is found reliable, the same can be the sole basis for conviction."

Later this Court in the case of GOUTAM AND OTHERS v.

THE STATE OF KARNATAKA3 has held as follows:

"6. The Protection of Children from Sexual Offences Act, 2012 is a special enactment. Section 31 of the POCSO Act states that the provisions of the Code of Criminal Procedure applies to the proceedings before the Special Court except as otherwise provided in the said Act. Section 33 of the POCSO Act provides for procedure and powers of the special court in conducting trial.

7. Section 33(2) of the POCSO Act states that the Special Public Prosecutor or the defence counsel while recording the evidence to the child witness shall communicate the questions to be put to the child to the Special Court and in turn, the Special Court shall put such questions to the child. That means the defence or the prosecution has no right of direct examination or cross-examination of the victim child.

8. Section 33(5) of the POCSO Act, states that the Special Court shall ensure that the child is not called repeatedly to testify in the Court. Even to recall

Criminal Petition No.200908of 2019 decided on 04-09-2019

the child witness or any other witness in a trial, the accused has to explain his lapses and touching which matter he wants to further cross-examine or examine the witnesses. In the case on hand, the application is as bald as possible."

On the touchstone of the judgments rendered by the Apex

Court, Division Bench and coordinate Bench of this Court, the

order impugned will have to be considered. The order dated

16.09.2019 which declines cross-examination of the victim by

the State on her turning hostile reads as follows:

"(J¸ï.¦¦gÀªÀgÀÄ ¸ÁQëAiÀÄ£ÀÄß ¥ÀæwPÀÆ® ¸ÁQë JAzÀÄ ¥ÀjVt¹

¥Ánà ¸ÀªÁ®Ä ªÀiÁqÀ®Ä C£ÀĪÀÄw PÉýzÀgÀÄ. C©üAiÉÆÃd£ÉAiÀÄ ¨sÁ zÀA

¸ÀA PÀ®A.376 gÀ CrAiÀÄ°è ¸ÁQë £ÀÄrAiÀÄzÀ PÁgÀt, F ¸ÁQëAiÀÄ£ÀÄß

¥ÀæwPÀÆ® ¸ÁQë JAzÀÄ ¥ÀjUÀt¹PÉÆAqÀÄ ¥Ánà ¸ÀªÁ®Ä ªÀiÁqÀ®Ä

CªÀPÁ±À PÉÆqÀ¨ÉÃPÀÄ ºÁUÀÄ ¥ÉÆÃPÉÆìà PÁAiÉÄÝ PÀ®A 33(6) EzÀPÉÌ

C£ÀéAiÀÄ DUÀĪÀÅ¢®è JAzÀÄ ªÁ¢¹zÁÝgÉ. ¥ÉÆÃPÉÆìà PÁAiÉÄÝ 2012 gÀ

PÀ®A 33(6) gÀ ¥ÀæPÁgÀ ªÀÄUÀÄ«£À ZÁjvÀæöåPÉÌ ªÀÄvÀÄÛ CªÀgÀ WÀ£ÀvÉUÉ zsÀPÉÌ

§gÀĪÀAvÀºÀ ¥Àæ±ÉßAiÀÄ£ÀÄß PÉüÀĪÀAw®è ¥ÀæwPÀÆ® ¸ÁQë AiÀiÁV ªÀiÁqÀ®Ä

C£ÀĪÀÄw ¤ÃrzÀ°è, zÀAqÀ ¥ÀæQæAiÀiÁ ¸ÀA»vÉ PÀ®A 161 gÀ CrAiÀÄ°è

vÀ¤SÁ¢üPÁj §gÉzÀÄPÉÆArgÀĪÀ JGÁè ¸ÀAUÀwUÀ¼À£ÀÄß ªÀÄvÀÄÛ CªÀgÀÄ

¥Ánà ¸ÀªÁ®Ä ªÀiÁr ¥Àæ²ß¸ÀĪÀÅzÀjAzÀ CzÀÄ ªÀÄUÀÄ«£À UËgÀªÀPÉÌ

zsÀPÉÌAiÀiÁV ªÀÄvÀÄÛ ªÀiÁ£À¹PÀªÁV CªÀgÀ ªÉÄÃGÉ zÀĵÀàjuÁªÀÄ ©ÃgÀÄvÀÛzÉ.

EzÀ®èzÉ zÀAqÀ ¥ÀæQæAiÀiÁ ¸ÀA»vÉ PÀ®A 164 (5) gÀrAiÀÄ°è £ÉÆAqÀ

¨Á®Q ¤ÃrgÀĪÀ ¤¦:10 ºÉýPÉ C©üAiÉÆÃd£ÉAiÀÄ ¥ÀæPÀgÀtPÉÌ

¥ÀæwPÀÆ®ªÁVgÀĪÀÅzÀjAzÀ ¥ÉÆÃPÉÆìà PÁAiÉÄÝAiÀÄ PÀ®A 33(6) gÀAvÉ

«±ÉõÀ £ÁåAiÀiÁ®AiÀĪÀÅ ªÀÄUÀÄ«£À ZÁjvÀæöåPÉÌ zsÀPÉÌ vÀgÀĪÀAxÀ ¥Àæ±ÉßUÀ¼À£ÀÄß

PÉüÀ®Ä CªÀPÁ±À ¤ÃqÀ¨ÁgÀzÀÄ ªÀÄvÀÄÛ «ZÁgÀuÁ ¸ÀªÀÄAiÀÄzÀ°è JGÁè

jÃw¬ÄAzÀ®Æ ªÀÄUÀÄ«£À UËgÀªÀªÀ£ÀÄß PÁ¥ÁqÀvÀPÀÌzÁÝVgÀÄvÀÛzÉ.

¸ÁQëzÁgÀgÀ£ÀÄß ¥ÀæwPÀÆ® ¸ÁQëAiÀÄ£ÁßV ªÀiÁqÀĪÀÅzÀÄ £ÁåAiÀiÁ®AiÀÄzÀ

«ªÉÃZÀ£ÉUÉ ©lÖzÁÝVgÀÄvÀÛzÉ. ¥ÀæwAiÉÆAzÀÄ ¥ÀæPÀgÀtzÀ®Æè C©üAiÉÆÃd£ÉAiÀÄ

¥ÀæPÀgÀtPÉÌ ¸ÁQë £ÀÄrAiÀÄĪÀ PÁgÀtPÉÌ CAvÀºÀ ¸ÁQëUÀ¼À£ÀÄß ¥ÀæwPÀÆ® ¸ÁQë

JAzÀÄ ¥ÀjUÀt¸ÀGÉà ¨ÉÃPÀVgÀĪÀÅ¢®è, F ¥ÀæPÀgÀtzÀ ªÀ¸ÀÄÛ¹Üw ºÁUÀÄ

¸ÀAzsÀ¨sÀðªÀ£ÀÄß UÀªÀĤ¹ ¥ÉÆÃPÉÆìà PÁAiÉÄÝ PÀ®A 33(6) ªÀÄvÀÄÛ PÀ®A

22(2) £ÀÄß UÀªÀÄ£ÀzÀ°èj¹PÉÆAqÀÄ £ÁåAiÉÆÃavÀªÁV £ÁåAiÀiÁ®AiÀÄzÀ

«ªÉÃZÀ£ÉAiÀÄ ªÉÄÃgÉUÉ ªÀiÁ£Àå «±ÉõÀ ¸ÁªÀðd¤PÀ C©üAiÉÆÃdPÀgÀ

PÉÆÃjPÉAiÀÄ£ÀÄß ¥ÀjUÀt¸À®Ä DUÀĪÀÅ¢®è JAzÀÄ wêÀiÁ𤹠ªÀiÁ£Àå

J¸ï ¦ ¦ AiÀĪÀgÀ PÉÆÃjPÉAiÀÄ£ÀÄß wgÀ¸ÀÌj¸ÀGÁVzÉ)"

What would unmistakably emerge from a perusal of the

impugned order is that it runs counter to Section 33 of the

POSCO Act, judgments rendered by the Apex Court and that of

this Court and resultantly becomes unsustainable. Therefore,

the State is to be permitted to cross-examine the victim. But,

such cross-examination can be only in terms of Section 33 of the

POSCO Act which mandates that while cross-examination

questions shall be put to the Court and the Court in turn to put

the same questions to the victim. The learned Sessions Judge

shall take such care and caution in transmitting the questions

to the victim to be in strict consonance with the provisions of the

POSCO Act.

5. For the aforesaid reasons, I pass the following:

ORDER

(i) Criminal Petition is allowed and the order dated 16.09.2019 passed by the Principal District and Sessions Judge, Chamarajnagar in Special Case No.184 of 2019, stands quashed.

(ii) The matter is remitted back to the hands of the learned Sessions Judge dealing with the matter to

permit cross-examination of the victim strictly in accordance with Section 33 of the POSCO Act.

Sd/-

JUDGE

SJK