Karnataka High Court
Arjun 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 -4- NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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 -5- NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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. -6-
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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 -7- NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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. -8-
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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 -9- NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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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NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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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NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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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NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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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NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 [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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NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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.
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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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NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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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NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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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NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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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NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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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NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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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NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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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NC: 2024:KHC-K:8434-DB CRL.A No.200023 of 2021 C/W CRL.A No.200020 of 2021 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 List No.: 1 Sl No.: 34