Karnataka High Court
Ningappa S/O. Chikkappa Gejjiyavar vs The State Of Karnataka By on 16 July, 2020
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 16TH DAY OF JULY 2020
PRESENT
THE HON'BLE MR.JUSTICE B.A.PATIL
AND
THE HON'BLE MRS.JUSTICE M.G.UMA
CRIMINAL APPEAL NO.100312/2017
BETWEEN:
NINGAPPA S/O. CHIKKAPPA GEJJIYAVAR,
AGE: 40 YEARS, OCC: COOLIE,
R/O: BHARADI, TQ & DIST: HAVERI.
... APPELLANT
(By SRI. GIRISH S. HULAMANI, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REP. BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, DHARWAD
THROUGH GUTTAL POLICE STATION,
HAVERI, DIST: HAVERI.
... RESPONDENT
(By SRI.V.M.BANAKAR, ADDL SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF CR.P.C., SEEKING TO ALLOW THE PRESENT
APPEAL BY SETTING ASIDE THE JUDGMENT DATED
17.06.2017 PASSED BY THE COURT OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE AND SPECIAL JUDGE AT
HAVERI IN SPL.S.C.NO.27/2014 PUNISHABLE UNDER
SECTIONS 498(A), 376, 376(2)(F)(I), 506, 201 READ WITH
SECTION 34 OF IPC AND UNDER SECTION 4, 7 AND 10 OF
POCSO ACT, 2012.
:2:
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, B.A.PATIL J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal has been preferred by the appellant/accused No.1 against the judgment of
conviction and order of sentence passed by the Principal District and Sessions Judge, Haveri in Spl.S.C.No.27/2014 dated 17.06.2017.
2. We have heard the learned counsel Sri. Girish S. Hulamani, who has been appointed by the High Court Legal Service Committee to conduct the appeal, by virtual hearing and we have also heard the learned Addl. SPP Sri. V. M. Banakar for the respondent-State.
3. It is alleged in the complaint that accused No.1, who is the husband of the complainant, and their children Ranjitha and Raju were living in Bharadi village. The husband of the complainant was addicted to bad vices and every day he used to consume alcohol and used to subject the complainant to cruelty :3: both physically and mentally by abusing and assaulting her. In that light, on 04.03.2014 at about 12.00 midnight, accused No.1 knowing fully well that his daughter Ranjitha is minor, with an intention to have sex with his own daughter, showed sickle to the complainant and committed criminal intimidation by threatening the complainant to finish her off and had sexual intercourse with her daughter. It is further alleged that on 29.08.2014, accused No.1 took his daughter Ranjita to Harihar by saying that he will provide treatment to his daughter for jaundice. During that time, he repeated sexual intercourse with his own daughter many dates in many places and committed aggravated sexual assault on her. It is further alleged that, accused No.2 supported the act of accused No.1 and requested the complainant not to file any complaint against accused No.1 with an intention to cause disappearance of the evidence. It is further alleged that, because of the sexual act of accused No.1, the minor victim girl sustained injuries :4: on her private parts. After coming to know about this fact, the woman helpline got admitted the victim to the hospital and subsequently the complainant has lodged the complaint. On the basis of the complaint, a case has been registered in Crime No.129/2014. Thereafter after investigation charge sheet came to be filed.
4. On receipt of the charge sheet, the Special Court took cognizance and by securing the presence of the accused and after hearing the learned counsel appearing for the parties, the charge was framed, read over and explained to the accused. Accused pleaded not guilty and they claimed to be tried. As such, trial was fixed.
5. To prove the case of the prosecution, it got examined 21 witnesses and got marked 43 documents and also 15 material objects. Thereafter, statement of the accused was recorded by putting incriminating material as against him and accused has not led any :5: defence evidence nor got marked any documents. Accused No.1 has been found guilty and convicted for the offences punishable under Sections 498-A, 506 of IPC, Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as 'the POCSO Act', for short) r/w. Section 376(2)(f)(1) of IPC and also under Sections 7 and 10 of the POCSO Act. Accused No.2 has been found guilty and convicted for the offence punishable under Section 201 r/w. Section 34 of IPC. Being aggrieved by the same, appellant/accused No.1 is before this Court.
6. The main grounds urged by the learned counsel for the appellant/accused No.1 is that, the judgment of the learned Sessions Judge is contrary to law and materials placed on record. It is his further submission that, though the accused has not committed any offence, the appellant/accused No.1 has been falsely implicated by the complainant by lodging the complaint on 30.08.2014. It is his further :6: submission that there is inordinate delay in filing the complaint and the same has not been explained by the prosecution. It is his further submission that there are so many contradictions, omissions in the case of the prosecution. It is his further submission that, after concluding of the evidence, the learned Sessions Judge without giving any opportunity to the learned counsel for the accused to put forth his arguments, has proceeded to pass the impugned judgment. It is his further submission that no full opportunity of hearing has been given to the accused/appellant to put forth his case and thereby his right of hearing and right to get a fair justice has been affected. On these grounds, he prayed to allow the appeal and to set aside the impugned judgment of conviction and order of sentence and to acquit the appellant/accused No.1.
7. Per contra, learned Addl. SPP vehemently argued and submitted that there is ample material as :7: against the appellant/accused No.1. The complainant is none other than the wife of the accused. She has categorically deposed that by threatening her the accused had sexually assaulted on the minor victim girl. It is his further submission that, even the victim has also been examined as PW4 and the learned JMFC Haveri has recorded the statement of the victim under Section 164 Cr.P.C and the said statement corroborates with the evidence of PW5, the learned Magistrate who recorded the statement of the victim. It is his further submission that the material produced by the prosecution clearly goes to show that the accused has sexually assaulted the victim many times. It is his further submission that the appellant/accused No.1 has not made out any good grounds so as to interfere with the judgment of the trial Court. The judgment of the trial Court deserves to be confirmed. On these grounds he prayed to dismiss the appeal. :8:
8. We have carefully and cautiously gone through the submission made by the learned counsel appearing for the parties and perused the records including the trial Court records.
9. Though the learned counsel for the appellant/accused No.1 urged many more grounds, but one such ground is that, appellant has not been given any opportunity of hearing and thereby his rights have been deprived. On perusal of the judgment of the trial Court, at para No.2 it has been observed as under:
"2. Sri. M. S. Pujar and Sri. V. F. Kattegoudar, learned counsels have appeared for accused No.1 and 2 respectively. But when the same is posted for arguments on several occasions they have taken adjournments and on 8.6.2017 advocates of Haveri Bar without any intimation or resolution abstained from attending the Court proceeding of Haveri courts on the issue of their welfare fund and from 9.6.2017 they have continued their boycotting the court proceedings without any intimation or resolution given to the courts stating that they have not been provided :9: with Advocates' Association Building at Haveri by hoisting banner of indefinite boycott inside the court premises infront of the C.J.M. court hall and efforts made by me as the Principal District and Sessions Judge by showing to the bar members all the records with the office about sending proposals to the Hon'ble High Court, approval of the same by the building committee and sending the same to the P.W.D. Department, Vikas Soudha, Bangalore for allocation of funds and also showing a letter addressed by Registrar Infrastructure on 3.6.2017 for allotment of 1/3rd amount for starting the work. The local advocates are not appearing before this court to conduct the proceedings. In pursuance of such of their stand, Sri.M.S.Pujar and Sri. V.F.Kattegoudar, learned counsels for the accused have not appeared and addressed their arguments and even inspite of giving opportunity, they have not filed the written submissions, therefore as per the decision of the Hon'ble Supreme Court of India in Ex. Captain Harish Uppale vs. Union of India in W.P.(C) No.394/1993, 821/1990, 320/1993 and 406/2020 Dtd. 17.12.2002, this court has noted in the order sheet that accused and advocates for accused have not addressed their arguments and on hearing the learned : 10 : Special Public Prosecutor appearing for the State, this Court has proceeded with this judgment."
10. On going through the above paragraph, the learned Sessions Judge after referring to the decision of the Hon'ble Supreme Court, by noting in the order sheet that accused and Advocate for accused have not addressed their arguments, heard the learned Special Public Prosecutor appearing for the State and proceeded to pass the impugned judgment.
11. On perusal of the records, when the advocate on record has not been heard on behalf of the accused and only the learned public prosecutor has been heard and on the basis of such arguments, the learned Sessions Judge has proceeded to pass the impugned judgment, that itself appears to be violation of principles of natural justice i.e., "audi alteram partem", no man should be condemned unheard. When it has been mentioned in paragraph 2 of the impugned judgment that the advocates of the Haveri : 11 : Bar Association have boycotted the Court premises indefinitely, then the learned Sessions Judge ought to have postponed the hearing of the arguments and after hearing the learned counsel appearing for the accused, he could have passed the impugned order. Even if the case could have been adjourned for some time till the boycott is recalled or whenever they resume for work, without waiting, the learned Sessions Judge has proceeded hurriedly to pass the impugned judgment.
12. We are conscious of the fact that, if an opportunity of hearing is not given to the appellant/accused, his right to fair trial and justice is also going to be affected. Looking from any angle, we are of the considered opinion that an opportunity ought to have been given to the accused and the same has been deprived. In that light, the accused has to be given an opportunity of hearing and the matter requires to be remitted back to the trial Court : 12 : to hear the learned counsel for the appellant and thereafter to pass an appropriate legal order.
13. We are conscious of the fact that remand is an exception. This court can hear and dispose of the case on merits, but the right of the appellant of filing an appeal is going to be deprived. In that light it requires remand.
In the light of the discussion held by us above, the appeal is allowed. The judgment of conviction and order of sentence dated 17.06.2017 passed by the Principal District and Sessions Judge and Special Judge, Haveri in Special SC No.27/2014 is set aside as against accused No.1 and the matter is remitted back to the trial Court with a direction that the learned Principal District and Sessions Judge and Special Judge has to give full opportunity from the stage of hearing arguments and thereafter hear the arguments and pass an appropriate order in accordance with law. : 13 :
Registry is directed to send back the lower court records forthwith. As this case is pertaining to the year 2014, the learned Sessions Judge is also directed to give priority to dispose of this case expeditiously.
High Court Legal Service Authority is hereby directed to make necessary payment to the learned counsel for the appellant in accordance with the rules provided therein.
Sd/-
JUDGE Sd/-
JUDGE KGK/gab