Irregularities In Reasoning & Appreciation Of Evidence By Trial Court: Karnataka High Court Sets Aside Death Penalty Of 62 Yr Old In POCSO Case

A division bench of Justice G Narender and Justice M I Arun, while partly allowing the appeal filed by accused Venkateshappa, set aside the judgment of conviction and sentence and remitted the matter back for partial re-trial.

It observed,

"The reasoning adopted by the trial court to impose the death penalty, we would limit our comments to stating that it shocks our judicial mind and also reflects a lack of judicial temperament in the author of the judgment."

"We also record our displeasure in the manner in which the Trial Court has proceeded in concluding the trial and appreciation of evidence and more particularly, the imposition of the sentence of capital punishment."

It has ordered the Trial Court to conclude the partial re-trial within a period of six months, failing which the accused shall be entitled to seek bail.

Background

The complainant, mother of the victim, had alleged that when she returned from work, she found the victim locked inside the bathroom of their house. On breaking it open, she found the accused rearranging his clothes and immediately she proceeded to observe the clothes of the victim and found that her pant and undergarment had been removed. On inquiring from the victim, it came to her knowledge that the accused had slept on the top of the victim and had done something in the place where she passes urine.

Accordingly, the police registered a case for the offences punishable under Section 376 of Indian Penal Code, 1860 and Sections 4 and 6 of Protection of Children from Sexual Offences Act, 2012. The accused was arrested on the next day i.e., on 02.05.2018 and he continues to remain in custody from the date of his arrest.

The prosecution examined 19 witnesses to bring home the guilt of the accused and the court by its order dated 17 January 2020 convicted the accused and sentence the accused to death for commission of offence punishable under Section 376 of IPC. He was also convicted for offences punishable under Sections 4 (penetrative sexual assault) and 6 (aggravated penetrative sexual assault) of POCSO Act.

Submission of the Accused:

Firstly the counsel contended that the judgment of the Trial Court stands vitiated on account of rejection of the application for examining the author of Ex.P.12 – DNA report.

Another application under Section 45 of the Evidence Act, 1872 requesting the Court that the accused would give fresh blood samples and semen etc. for DNA examination as he doubts the sanctity of the report at Ex.P.12, was also rejected stating that there is no requirement to summon the expert who has given the DNA report. That in respect of trial for the offences under POCSO Act, there is no scope for lengthy cross-examination of witnesses.

The Special Public Prosecutor admitted that the reasoning of the Trial Court would not stand legal scrutiny and that the Trial Court ought to have given a full opportunity to the accused and thereby ensured a fair trial.

However, it was submitted that the accused cannot take advantage of the glitch to seek a de novo trial. He would submit that the right to fair trial is a right vested in the accused and it is the duty of the prosecution and the Court to ensure that the right of the accused to a fair trial is not embellished. The matter be remanded to a limited extent of summoning the author of Ex.P12 and that the application under Section 45 of the Indian Evidence Act merit dismissal.

Findings

Firstly the court said, "From a reading of the reasoning set out by the Trial Court to reject the applications, it can be firmly inferred that the Trial Court has pre-judged the evidence that would have been given by the witness, who was proposed to be summoned i.e., the author of Ex.P12."

The court then noted,

"Section 45 of the Indian Evidence Act, 1872, deals with 'opinions of experts'. If the same is read in conjunction with Section 60 of the Indian Evidence Act, which deals with 'oral evidence', more particularly, the Proviso, we are of the opinion that the reliance on Ex.P12 without the author of the document being made available for cross-examination, in our opinion, amounts to the denial of a fair trial and vitiates the finding of guilt and consequent conviction of the appellant."

It added, "The prosecution having deemed it fit and necessary for referring the material for examination and opinion by expert in the subject of DNA and the prosecution having received such Report and the Report having formed a part of charge sheet and the report having been marked through PW10, who is not the expert and who is not the author of Ex.P12 and the Court having placed reliance on the said evidence, the request of the accused ought to have been acceded to, by the Court in order to not only render justice but also as stated and restated that it must appear that justice is also been done."

It also opined that "There has been a serious infraction of right to privacy of accused in the matter of prosecution having ventured to draw blood for the purpose of conducting DNA tests."

Further, the court said, "It causes consternation to us that the Trial Court has thrown to the winds all caution in this regard and further proceeded to reject the application by the accused himself, offering to subject himself for DNA analysis. That apart, even on merits of the case, it does not support the conclusions drawn by the Trial Court holding the accused guilty of the offence punishable under Sections 4 and 6 of the POCSO Act."

On perusing evidence, the court said, "Prima facie, appraisal of the material evidence does not convince us of penetrative sexual assault much less any aggravated sexual assault. That apart, it is claimed that the child is 12 years and the provisions of Section 9 (m) of the POCSO Act, refers to sexual assault on a child below 12 years. This crucial aspect has also not been properly appreciated by the Trial Court. In fact, the appreciation of evidence by the Trial Court leaves much to be desired. The evidence at the most suggests the commission of the offence as defined and stipulated under Sections 7 or 9 of POCSO Act, punishable under Sections 8 and 10 of the POCSO Act respectively."

The court concluded by saying,

 "We decline to form any opinion with regard to the guilt or the commission of the offence in view of the fact that this Court has decided to remit the matter back."

Accordingly, it ordered,  "The application under Section 293 of Cr.P.C. filed for issuing summons to the DNA expert to lead evidence deserves to be allowed and is accordingly allowed. The accused is entitled to summon the author of Ex.P12. Consequently, the Trial Court shall take appropriate steps to have the author of Ex.P12 examined-in-chief and permit his cross-examination by or on behalf of the accused. Further, cross-examination of PWs1 to 3 as prayed under the application under Section 311 of Cr.P.C. shall only be to the extent as permissible and limited to contents and conclusions of Ex.P12. The remand shall enable the parties to make submissions afresh in the matter and the Trial Court shall endeavour to conclude the trial and render a judgment within a period of six months from today."

Case Title: Venkateshappa v. State Of Karnataka

Case No: Criminal Appeal No.227/2020

Date Of Order: September 3, 2021.

Appearance: Advocate Veerann G.Tigadi For Appellant; Special Public Prosecutor V.M.Sheelavant, A/W Advocate Vijaya Kumar Majage For Respondent.