Karnataka High Court
The State Of Karnataka vs Dharmaveer Singh on 30 May, 2024
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CRL.A No. 975 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL
CRIMINAL APPEAL NO.975 OF 2017
BETWEEN:
The State of Karnataka
By J.C.Nagar P.S.,
Rep. by State Public Prosecutor,
High Court Building,
Bengaluru.
...Appellant
(By Sri B.N.Jagadish, Addl. SPP)
AND:
1. Dharmaveer Singh
Digitally S/o Sathwan Singh,
signed by
SRIDEVI S Aged 36 Years
Location: Employee No.13624296-A,
HIGH COURT
OF
KARNATAKA
Present Address:
CHQ, PRTC Quarters,
J.C.Nagar, Bengaluru-560 006.
Permanent Address:
Nagalalaka Village,
Pachwar Post,
Mahavan Taluk,
Mathura District,
U.P.State - 281 001.
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CRL.A No. 975 of 2017
2. Kom D.S.
F/o D.Lengratsong Kom
Aged about 36 years,
R/a No.22/02, PRTC Quarters,
J.C.Nagar, Bengaluru - 560 006.
...Respondents
(By Sri. Shaikh Saoud, Adv. for R1 &
Smt. K.M.Archana, Adv. appointed as Amicus-Curiae for R2)
This Criminal Appeal filed u/s. 378(1) & (3) Cr.P.C.,
praying to grant leave to file an appeal against the judgment
and order dated 12.01.2017 passed by the LIV Addl. City Civil
and Sessions Judge, Bangalore in Spl.C.C.No.154/2014
acquitting the respondent/accused for the offence p/u/s 376 of
IPC and sec. 5(m) r/w 6 of POCSO Act, 2012.
Date on which the appeal was 05.04.2024
reserved for judgment
Date on which the judgment was 30.05.2024
pronounced
This Criminal Appeal having been heard & reserved,
coming on for pronouncement this day, Sreenivas Harish
Kumar J., pronounced the following:
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CRL.A No. 975 of 2017
JUDGMENT
The State has preferred this appeal
challenging the judgment dated 12.01.2017 in
Spl.C.C.No.154/2014 on the file of the LIV
Additional City Civil and Sessions Judge,
Bengaluru, acquitting the accused of the offences
punishable under Section 376 of IPC and Section
5(m) read with Section 6 of the Protection of
Children from Sexual Offences Act ('POCSO Act' for
short).
2. The prosecution case is about sexual
assault on a 14 months old girl child. PW3 is the
mother and PW4 is the father of the child. On
25.01.2014, PW3, while going to market, gave the
child to her husband PW4 who was on sentry duty
at the main gate of Para Regiment Training Centre.
As shift duty of PW4 was about to be closed on
that day and he was to hand over the register and
the keys at reception counter, the accused who
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was near the reception counter asked PW4 to give
the child to him. Then PW4 handed over the child
to the accused and went to deposit the keys. After
depositing the keys PW4 came back and saw his
child crying. He asked the accused as to what
happened to the child to which the accused feigned
ignorance. By that time PW3 returned from
market and took the child in her arms and noticed
bleeding in the genital of the child. Hawaldar
Ravidas came to that place. They all noticed blood
on the shirt and finger of the accused. Thereafter
child was taken to hospital. Registration of FIR led
to investigation and accused being charge sheeted.
3. The prosecution examined 20 witnesses
and got marked the documents Exs.P1 to P32 and
five material objects. The trial court is of the
opinion that the evidence placed before it by the
prosecution does not appear to be trustworthy.
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According to it there are serious infirmities in the
evidence.
4. We have heard the arguments of Sri
B.N.Jagadish, learned Addl. SPP for the appellant/
State, Smt. K.M.Archana, learned Amicus Curiae
for respondent No.2 i.e., PW4 and Sri Shaikh
Saoud, learned counsel for respondent
No.1/accused.
5. Sri B.N.Jagadish argued that the trial
court has erroneously acquitted the accused
despite the fact that the prosecution has been able
to prove its case beyond reasonable doubt. He
would argue that the accused did not dispute
handing over of child to him; there were no
injuries when the child was given to him; the child
suffered injuries on its genitals thereafter; the
medical evidence is supporting; and PW17
corroborates the testimonies of PW3 and PW4. The
Child's blood group is 'O' and the blood stains
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found on the shirt of the accused was also of 'O'
group. Ignoring this kind of evidence, the trial
court acquitted the accused giving importance to
some minor contradictions. Therefore appeal
deserves to be allowed and the accused convicted.
6. Smt. K.M.Archana supported the
argument of Sri B.N.Jagadish, and submitted that
the trial court has not properly appreciated the
medical evidence. The medical evidence
corroborates the evidence of PW3, PW4 and PW17.
This being the factual position, the accused should
not have been acquitted.
7. On the contrary, Sri Shaikh Saoud would
argue that, since this is an appeal against acquittal
judgment this court cannot convict the accused
even though another view in favour of the
prosecution can be taken. He argued that PW3
and PW4 while giving history in the hospital did
not state about sexual assault, they gave a
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different history. This itself is sufficient to doubt
the prosecution case. The police did not seize
from the accused his blood stained clothes, rather
it was PW17 who handed over the clothes. This is
another aspect that would favour accused. His
further argument was that PW1, PW2, PW3, PW4,
PW6 and PW7 were examined in the absence of
accused violating the mandate under Section 273
of Cr.P.C. On many dates, the accused was not
produced from custody, inspite of that evidence
was recorded. Hence this has resulted in serious
prejudice to the accused. He has also filed an
application under Section 273 read with Section
482 of Cr.P.C., for remanding the case to the trial
court in order to record the evidence of those
witnesses in the presence of the accused.
8. Sri B.N.Jagadish replied that the interest
of the accused has not been prejudiced as
prominent witnesses were cross examined by the
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defence counsel even though accused was not
produced from custody on some hearing dates.
9. We have perused the evidence and the
impugned judgment. At the outset it may be
stated that the reasons recorded by the trial court
do not appear to be convincing. It is not
necessary to point out in detail as to where and
how the trial court has gone wrong. As has been
pointed out by Sri Shaikh Saoud, on many dates of
hearing accused was not produced before the court
from custody.
10. Though it is forthcoming that the counsel
for the accused cross examined some of the
witnesses, he was absent when some other
witnesses were examined, for instance, the
deposition of PW6 shows that defence counsel was
absent and the trial court had to hold the cross
examination 'nil' after PW6 was further examined
in chief on 01.12.2016. Since the accused was in
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custody, any occasion to dispense with his
personal attendance would not have arisen. PW3
and PW4 are the main witnesses, and if their
evidence was recorded in the absence of accused it
was violative of Section 273 of Cr.P.C. It also
appears that the trial court closed recording of
some of the witnesses noticing absence of defence
counsel as there was direction by this court for
early disposal of the case. This being the position
we find it difficult to take a view different from
what the trial court has expressed. In a situation
like this, the only course open is to direct retrial of
the accused in accordance with Section 386(a) of
Cr.P.C., insofar as it relates to recording the
evidence of PW1, PW2, PW3, PW4 and PW7 and
further examination in chief of PW6 excluding her
earlier part of evidence dated 02.12.2014.
11. For this reason the impugned judgment
requires to be set-aside. Now the following:
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ORDER
i) Appeal is allowed. The judgment
dated 12.01.2017 in Spl.C.C.
No.154/2014 on the file of LIV
Additional City Civil and Sessions
Judge, Bengaluru is set-aside, and
the trial court is directed to record
the evidence of PW1, PW2, PW3,
PW4 and PW7 and further
examination of PW6 in the presence
of accused;
ii) The accused shall appear before the
trial court on all the dates of hearing
without fail, and shall execute a bail
bond with two sureties for a sum of
Rs.1,00,000/- to the satisfaction of
the trial court to assure his regular
appearance before trial court till the
case is decided on merits. The trial
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court shall impose such conditions as
it may deem necessary while
obtaining bail bond from the
accused.
iii) In case the accused fails to execute
the bond, he shall be taken to
custody.
iv) Since the case is considerably old,
the trial court shall expedite the
decision on merits afresh after
recording the evidence of aforesaid
witnesses and hearing arguments.
v) The accused is hereby directed to
appear before the trial court on
20.06.2024.
vi) I.A.No.1/2024 stands disposed of.
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vii) Send back the trial court records
forthwith with a copy of this
judgment.
The High Court Legal Services Committee is
hereby directed to pay a sum of Rs.10,000/- to
Smt. K.M.Archana, who rendered her services as
Amicus Curiae.
Sd/-
JUDGE
Sd/-
JUDGE
KMV
