Karnataka High Court
Ningappa S/O Shivasharanappa Kountagi vs The State Of Karnataka on 13 November, 2024
Author: R.Devdas
Bench: R.Devdas
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CRL.A No.200023 of 2021
C/W CRL.A No.200020 of 2021
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO.200023 OF 2021
C/W
CRIMINAL APPEAL NO.200020 OF 2021
IN CRIMINAL APPEAL NO.200023 OF 2021:
BETWEEN:
NINGAPPA
S/O SHIVASHARANAPPA KOUNTAGI,
AGE: 27 YEARS,
OCC: AGRICULTURE,
R/O: GOUNALLI VILLAGE,
Digitally signed
by VARSHA N TQ: JEWARGI,
RASALKAR DIST: KALABURAGI - 585 310.
Location: HIGH ...APPELLANT
COURT OF (BY SRI R.S. LAGALI, ADVOCATE)
KARNATAKA
AND:
THE STATE OF KARNATAKA,
BY THE S.H.O., JEWARGI PS,
REP. BY THE ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH.
...RESPONDENT
(BY SRI SIDDALING P. PATIL, Addl. S.P.P.)
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CRL.A No.200023 of 2021
C/W CRL.A No.200020 of 2021
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO ADMIT THIS APPEAL, CALL
FOR THE RECORDS FROM THE COURT BELOW, ALLOW THIS
APPEAL AND THEREBY SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION DATED 29.09.2020 PASSED BY THE II
ADDITIONAL SESSIONS JUDGE / SPECIAL JUDGE, KALABURAGI
IN SPECIAL CASE (POCSO) NO.25/2019 AND ACQUIT THE
APPELLANT OF ALL THE CHARGES, IN THE INTEREST OF
JUSTICE.
IN CRIMINAL APPEAL NO.200020 OF 2021:
BETWEEN:
ARJUN
S/O SHIVASHARANAPPA KOUNTAGI,
AGE: 29 YEARS,
OCC: AGRICULTURE,
R/O: GOUNALLI VILLAGE,
TQ: JEWARGI,
DIST: KALABURAGI - 585 310.
...APPELLANT
(BY SRI R.S. LAGALI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
BY THE S.H.O., JEWARGI PS,
REP. BY THE ADDL. STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
KALABURAGI BENCH - 585 310.
...RESPONDENT
(BY SRI SIDDALING P. PATIL, ADDL. S.P.P.)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., PRAYING TO ADMIT THIS APPEAL, CALL
FOR THE RECORDS FROM THE COURT BELOW, ALLOW THIS
APPEAL AND THEREBY SET ASIDE THE JUDGMENT AND ORDER
OF CONVICTION DATED 18.12.2020 PASSED BY THE II
ADDITIONAL SESSIONS JUDGE / SPECIAL JUDGE, KALABURAGI
IN SPECIAL CASE (POCSO) NO.27/2019 AND ACQUIT THE
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CRL.A No.200023 of 2021
C/W CRL.A No.200020 of 2021
APPELLANT OF ALL THE CHARGES, IN THE INTEREST OF
JUSTICE.
THESE CRIMINAL APPEALS COMING ON FOR ADMISSION,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE R.DEVDAS
AND
HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE G BASAVARAJA)
The Criminal Appeal No.200023/2021 arise out of
Special Case (POCSO) No.25/2019 dated 29.09.2020 and
Criminal Appeal No.200020/2021 arise out of Special Case
(POCSO)No.27/2019 dated 18.12.2020.
2. The parties to these appeals are referred to as
per their rank before the trial Court.
3. The brief facts leading to filing these two
appeals are that, the Circle Inspector of Police, Jewargi
has filed charge-sheet against the accused Nos.1 and 2
alleging commission of offences punishable under Sections
366(A), 376(2)(i)&(n), 109 r/w Section 34 of Indian Penal
Code (for short, 'IPC') and Sections 4, 6 and 17 of the
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Protection of Children from Sexual Offences Act, 2012 (for
short, 'POCSO Act, 2012'). It is alleged that since 3-4
months, accused No.1 was giving hand signal to P.W.1
victim, a minor girl aged about 17 years, was promising to
marry her and was teasing her. On 08.12.2018, at about
5.00 p.m. when the victim was returning home from her
land near Rasanagi old road near Gounalli village, the
accused No.1 came near her, called her and proposed his
love to her and promised to marry her stating that he
cannot live without her, she refused his proposal.
Thereafter, he put cloth into her mouth, dragged her
towards bushes, then accused No.2 came on a motorcycle
bearing Reg.No.KA-32/ED-6422, the accused Nos.1 and 2
took her on the motorcycle to the land bearing Sy.No.10/B
belongs to C.W.7 situated within the limits of Mandarwad
village. Thereafter, accused No.2 left the accused No.1
and the victim to said place and went back. On the same
day, accused No.1 committed rape on her. On 09.12.2018,
accused No.2 brought the food to them on his motorcycle
to the land, during night hours, the accused Nos.1 and 2
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took her upto Farhatabad. The accused No.2 left the
accused No.1 and victim there and went back along with
motorcycle. Thereafter, from there accused No.1 took her
to Kalbauragi Railway Station, from there to Bengaluru by
train, they reached on 10.12.2018, he took her to a room,
where C.Ws.4 and 5 were residing. Thereafter, again he
took the victim to Shrinivaspur area and Kottanur area,
kept her in the shed, during the night hours, he committed
rape on her repeatedly against her will. Thus, the accused
Nos.1 and 2 have committed the aforesaid alleged
offences.
4. After filing of the charge-sheet, the Special
Court took cognizance of the offences and registered the
case in Special Case No.25/2019. The Special Court has
issued NBW to secure the accused No.2. Despite the same,
the concerned Police have failed to secure accused No.2.
Therefore, case was separated from the charge-sheet
against the accused No.2 and separate case number was
assigned as Special Case No.27/2019.
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5. On hearing the charges, the Special Court has
framed charges for the alleged commission of offences.
The charges were read over and explained to the accused
No.1, who pleaded not guilty and claimed to be tried.
Since the date of arrest i.e., 09.01.2019, the accused No.1
is in judicial custody.
6. To prove the guilt of the accused No.1, in all 18
witnesses were examined as P.Ws.1 to 18. Forty five
documents are marked on behalf of prosecution as Exs.P.1
to 45. Seven material objects are marked as M.Os.1 to 7.
During the pendency of the Special Case(POCSO)
No.25/2019, accused No.2 was secured and was produced
before the Court on 10.10.2019. In Special Case (POCSO)
No.27/2019, the prosecution has examined 16 witnesses
as P.Ws.1 to 16. Forty eight documents are marked on
behalf of prosecution as Exs.P.1 to 48. Seven common
material objects are marked as M.Os.1 to 7.
7. After closure of prosecution side evidence, the
statement of accused persons as required under Section
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313 of Cr.P.C. was recorded. Both the accused totally
denied the evidence appearing against them but they have
not chosen to lead any evidence on their behalf.
8. On hearing the arguments of both sides, the
trial Court has convicted the accused No.1 - Ningappa in
Special Case (POCSO) No.25/2019 for the commission of
offences punishable under Section 6 of POCSO Act, 2012
r/w Section 376(2)(i)&(n) of IPC and sentenced to
undergo rigorous imprisonment for life and fine of
Rs.50,000/-. In default of payment of fine, the accused
No.1 shall undergo simple imprisonment for a period of
two years. Accused No.1 is also convicted for the
commission of offence punishable under Section 366(A) of
IPC and sentenced to undergo simple imprisonment for a
period of ten years and pay fine of Rs.50,000/-. In default
of payment of fine, the accused No.1 shall undergo simple
imprisonment for a period of two years. It was ordered
that both the sentences shall run concurrently.
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9. The Special Court has also convicted the
accused No.2 for the commission of offence punishable
under Section 6 read with Section 17 of POCSO Act,2012
and Section 376(2)(n) r/w Section 109 of IPC and
sentenced to undergo rigorous imprisonment for life and
pay fine of Rs.50,000/-. In default of payment of fine, the
accused No.2 shall undergo simple imprisonment for a
period of two years; further, the accused No.2 is also
convicted for the commission of offence punishable under
Section 366(A) r/w Section 34 of IPC and sentenced to
undergo simple imprisonment for a period of ten years
and pay fine of Rs.50,000/-. In default of payment of fine,
the accused No.2 shall undergo simple imprisonment for a
period of two years.
10. Being aggrieved by both judgments of
conviction and order of sentence, the appellants have
preferred these separate appeals in
Crl.A.Nos.200023/2021 and Crl.A.No.200020/2021. After
registration of these appeals, notice was duly served on
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the respondent. P.W.2, the father of the victim is also
present before the Court.
11. The learned counsel Sri R.S. Lagali appearing
for both appellants in these appeals reiterated the
averments made in the memorandum of appeals and
further he has vehemently submitted that P.W.1, the
minor victim girl as well his father (PW.2) were not cross-
examined by accused No.1. He would submit that
P.W.1(victim) and P.W.2(father of the victim) were
examined before the Court on 03.04.2019. On that day,
the advocate for accused No.1 was not present. Hence,
the trial Court has recorded that the cross-examination of
P.W.1 and 2 was taken as nil. Thereafter, an application
was filed under Section 311 of Cr.P.C. seeking recall of
P.Ws.1 and 2 for their cross-examination. The said
application was partly allowed whereby P.W.2 is recalled
for cross-examination by accused No.1 but rejected the
application insofar as recalling of P.W.1 for cross-
examination by the accused No.1. Therefore, the learned
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counsel strenuously argued that the Special Court has not
provided an opportunity to the accused No.1 taking note
that he is in judicial custody which is in violation of
personal liberty as mandated/guaranteed under Article 21
of the Constitution of India. Even the Special Court has
not appointed any standing counsel to prosecute the case
on behalf of the accused No.1 as he was in judicial
custody.
12. The next limb of argument canvassed by the
learned counsel is that though the trial Court has secured
the presence of accused No.2 during the pendency of the
Special Case (POCSO) No.25/2019 which proceedings was
prosecuting against accused No.1, the trial Court has not
clubbed both the cases and passed a common judgment
though it was alleged by the prosecution that with the
common object, the accused Nos.1 and 2 have committed
the alleged offences. On these grounds, the learned
counsel sought for remand of the matter to the Special
Court for fresh disposal in accordance with law.
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13. To substantiate his argument, learned counsel
for the appellants relies on a decision of co-ordinate Bench
of this Court in the case of Bettakurubara M. Suresha
Vs. State of Karnataka [Crl.A.No.516/2019, disposed of
on 17.03.2022].
14. As against these submissions, Sri Siddaling P.
Patil, learned Addl. State Public Prosecutor would support
the impugned judgment of conviction and order of
sentence passed by the Special Court and further he would
submit that P.W.1, the victim girl is already married and
now residing in Maharashtra State. That being the
position, if the victim is again recalled by the Special Court
for giving evidence, it will cause much mental pain and
agony to the victim and also it may affect her matrimonial
life. He further submits that, the accused No.1 has not
challenged the partial negative order passed by the
Special Court on the application filed by him under Section
311 of Cr.P.C, therefore he would contend that now the
appellants have no locus standi to say that no opportunity
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has been given to the accused No.1 to cross-examine
P.W.1. On all these grounds sought for dismissal of both
appeals.
15. Having heard the arguments of both sides and
examined the materials placed before this Court, the
following points arise for our consideration:
Point No.1: Whether the appellants have made out
grounds to remand the appeals by
providing opportunity to the accused
No.1 to cross-examine P.W.1 as
sought for?
Point No.2: What order?
16. Our findings to the above points are as under:
Point No.1 : In the Affirmative
Point No.2: As per final order for the following:
REASONS
17. Point No.1: Before appreciating the materials
placed on record, it is appropriate to mention as to the
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judgment referred to above rendered by the Co-ordinate
Bench of this Court which has followed by the decision of
the Apex Court in Para No.23. The co-ordinate Bench has
observed relying on the judgment of the Apex Court in the
case of P. Ramesh Vs. State represented by Inspector
of Police reported in (2019) 20 SCC 593, wherein at
Para Nos.21 and 22 it was held as under;
"21. The power of an appellate court to order a
retrial on the limited point of re-recording
statements of witnesses was recently discussed in
Atma Ram v. State of Rajasthan [(2019) 20 SCC
481], where the trial court had convicted the
accused persons of the offences under Sections
302, 307, 452, 447, 323, 147, 148 and 149 IPC
and sentenced them to death. During the trial, the
court had recorded the evidence of twelve
witnesses in the absence of the accused persons.
In an appeal against conviction preferred by the
accused persons, the High Court [State v. Aatma
Ram, 2018 SCC OnLine Raj 2509 : (2019) 1 RLW
135] exercised its powers under Section 386(b)
CrPC to quash and set aside the judgment of the
trial court and remanded the matter back to trial
court to the extent of recording statements of the
twelve witnesses afresh after securing presence of
the accused in the court. The High Court held
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[State v. Aatma Ram, 2018 SCC OnLine Raj 2509 :
(2019) 1 RLW 135] in the following terms:
"19. In view of the discussion
made hereinabove and looking to the
glaring facts of the case at hand, we
feel that in order to do complete justice
to the accused as well as to the victims,
the entire case cannot be thrown out by
holding the proceedings to be vitiated
on account of the mistakes committed
by the trial Judge or the prison
authorities concerned. A fresh trial/de
novo has to be ordered by directing the
trial court to lawfully re-record
statements of the witnesses indicated
above whose evidence was recorded in
the first round without ensuring
presence of the accused in the court."
The accused persons preferred a special leave
petition before this Court, challenging the High
Court's order of a de novo trial for re-recording of
statements of witnesses. Affirming the view taken by
the High Court, this Court held thus: (Atma Ram case
[Atma Ram v. State of Rajasthan, (2019) 20 SCC
481] , SCC pp. 499-500, para 22)
"22. ... Section 386 then
enumerates powers of the appellate
court which inter alia includes the
power to "reverse the finding and
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sentence and acquit or discharge the
accused, or order him to be re-tried by
a court of competent jurisdiction
subordinate to such appellate court or
committed for trial". The powers of
appellate court are equally wide. The
High Court in the present case was
exercising powers both under Chapters
XXVIII and XXIX of the Code. If the
power can go to the extent of ordering
a complete retrial, the exercise of power
to a lesser extent, namely, ordering de
novo examination of twelve witnesses
with further directions as the High Court
has imposed in the present matter, was
certainly within the powers of the High
Court. There is, thus, no infraction or
jurisdictional error on the part of the
High Court.
****
25. ... If there was an infraction,
which otherwise does not vitiate the
trial by itself, the attempt must be to
remedy the situation to the extent
possible, so that the interests of the
accused as well as societal interest are
adequately safeguarded. The very same
witnesses were directed to be de novo
examined which would ensure that the
interest of the prosecution is subserved
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and at the same time the accused will
have every right and opportunity to
watch the witnesses deposing against
them, watch their demeanour and
instruct their counsel properly so that
said witnesses can be effectively cross-
examined. In the process, the interest
of the accused would also stand
protected. On the other hand, if we
were to accept the submission that the
proceedings stood vitiated and,
therefore, the High Court was powerless
to order de novo examination of the
witnesses concerned, it would result in
great miscarriage of justice. The
persons who are accused of committing
four murders would not effectively be
tried. The evidence against them would
not be read for a technical infraction
resulting in great miscarriage. Viewed
thus, the order and directions passed by
the High Court completely ensure that a
fair procedure is adopted and the
depositions of the witnesses, after due
distillation from their cross-examination
can be read in evidence."
22. In the present case, the High Court in the
considered exercise of its appellate jurisdiction has
remanded the proceedings back to the trial court
to assess objectively the capacity of the two child
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witnesses and if the evidence is recorded, to
furnish an opportunity to the accused to offer
evidence in rebuttal. The accused will also be
entitled to cross-examine them. We have taken
due note of the submissions which have been
made on the part of the appellant in regard to the
fact that there has been some lapse of time. As on
date, though a little over four years have elapsed
since the exclusion of their evidence by the trial
Judge, both the witnesses continue to be minors.
Hence, the High Court has issued necessary
directions to the learned trial Judge to assess
objectively the capacity of the two child witnesses
before recording their evidence."
18. In the above case, it was held that the learned
Sessions Judge while discharging the duties and dealing
with the matters pertaining to major offences like offence
under Section 376 of IPC and POCSO cases, during trial
when the accused counsel was absent, by recording that
counsel was absent, closes the cross-examination of the
defence as nil and proceed to pass the judgment of
conviction and order on sentence against the accused. It is
against the fundamental rights guaranteed to the accused
persons under Articles 21, 22 and 39A of the Constitution
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of India as well as provisions under Sections 303 and 304
of Cr.P.C.
19. In the case on hand, a perusal of the records
reveals that the Special Court has recorded the chief-
examination evidence of the victim on 03.04.2019 and the
Special Court has also recorded that the counsel for
accused No.1 was absent and taken the cross-examination
of P.W.1 as nil. It is not in dispute that accused No.1 was
in judicial custody at the time of recording evidence and
even now also the accused No.1 is in judicial custody. The
Special Court has not provided an opportunity to the
accused No.1 to engage another counsel or offered legal
aid counsel through concerned Legal Services Authority.
Accordingly, the Special Court has failed to provide free
legal assistance to the accused No.1 by appointing some
other advocate who are on the panel of Legal Services
Authority. Though the accused No.2 counsel has cross-
examined P.W.1 that itself is not sufficient to come to the
conclusion that fair opportunity was given to the accused
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No.1 as required under Article 21 of the Constitution of
India and Sections 303 and 304 of Cr.P.C. The cross-
examination on behalf of accused No.2 is also not binding
on the accused No.1 who is in judicial custody.
20. Having regard to the facts and circumstances of
the case in totality and also keeping in mind the aforesaid
decision of the Hon'ble Apex Court which is being
consistently followed by the co-ordinate Bench of this
Court, we are of the considered view that the trial Court
has not provided sufficient opportunity to the accused
No.1 to cross-examine P.W.1, the material witness.
Accordingly, the appellants have made out a ground to
remand the case to the Special Court for providing an
opportunity to accused No.1 to cross-examine P.W.1.
Hence, we answer point No.1 in the Affirmative.
21. Point No.2: For the aforesaid reasons, we
proceed to pass the following:
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ORDER
i) The Crl.A.No.200023/2021 filed by accused
No.1 and Crl.A. No.200020/2021 filed by
accused No.2 are allowed. The impugned
judgment of conviction and order of
sentence in Special Case (POCSO)
No.25/2019 dated 29.09.2020 and in
Special Case (POCSO) No.27/2019 dated
18.12.2020 are hereby set aside.
ii) The matter is remanded back to the trial
Court with a direction to the learned Special
Judge to provide an opportunity to the
appellant/accused No.1 to cross-examine
P.W.1 and dispose of the matter after
providing fair trial and strictly in accordance
with law.
iii) Having regard to the submission made by
learned Addl. State Public Prosecutor since
P.W.1 (victim) is a married woman and
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residing at Maharashtra State, it is
appropriate to fix the date for subjecting
P.W.1 for cross-examination, as requested
by learned Addl. State Public Prosecutor.
Accordingly, we have fixed the date i.e.,
17.01.2025. On that day, the prosecution
shall ensure P.W.1 is present before the
Court and counsel for accused No.1 shall
cross-examine P.W.1 without seeking any
unnecessary adjournments.
iv) As the crime is of the year 2018, the
Special Court is directed to take up the
matter on day-to-day basis without any
unnecessary adjournments and shall make
endeavour to dispose of the matter within
three months from the date of completion
of recording of cross-examination of P.W.1.
v) It is made clear that we have not expressed
any opinion on the merits or demerits of
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the case. The Special Court shall dispose of
the matter on merits without being
influenced by any of the observations and
ensure justice to be done in accordance
with law.
vi) The Special Court is directed to club both
the special cases together and pass a
common judgment in accordance with law.
vii) Accused No.2 is on bail, same shall be in
force till disposal of the case.
viii) Accused No.1 is in judicial custody from the
date of his arrest i.e., 09.01.2019 and no
bail is granted to accused No.1 and he shall
continue to be in judicial custody till
disposal of the case as this Court has
remanded the case only on technical
grounds to enable accused No.1 to cross-
examine P.W.1.
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ix) After receipt of the records, the Special
Court is directed to ensure that accused
No.1 is produced before the Court on
17.01.2025 without fail by giving necessary
directions to the concerned jail authorities.
In view of disposal of appeals, I.A.No.1/2021 filed for
suspension of sentence and for bail in
Crl.A.No.200023/2021 does not survive for consideration,
accordingly same shall stand disposed of.
Sd/-
(R.DEVDAS)
JUDGE
Sd/-
(G BASAVARAJA)
JUDGE
BL
