Karnataka High Court
State By Superintendent Of Police vs Manjunath on 25 July, 2024
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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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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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
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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
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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
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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
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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
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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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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
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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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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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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
