'Guilt Of Accused Can Be Established Only After Examination Of All Witnesses': Karnataka High Court Directs Retrial Of Rape Case

A division bench of Justice G Narendar and Justice M I Arun, while allowing the appeal filed by the state government said, "The matter stands remanded back to the trial court to continue the trial with liberty being given to the prosecution to adduce necessary evidence."

The accused Santosh was acquitted of the charges under 376(2)(n) of IPC and Sections 5(j)(ii) and 6 of  POCSO ACT. The prosecution in its appeal contended that to prove its case, it had requested the permission of the court to examine other witnesses mentioned in the charge sheet. However, the trial court, on the ground that the victim and other material witnesses have turned hostile has rejected the prayer of the prosecution to examine other witnesses and has acquitted the accused.

Further, it was contended that the DNA test of the child and the accused has not been conducted and the trial Court has erred in not permitting the other witnesses to be examined by the prosecution including the Doctor, who has examined the victim.

However, the court on going through the record noted that the prosecution had not made the necessary application before the trial Court to have a DNA test conducted for relating the child with the accused. It said, "They cannot now turn around and argue that the trial court committed an error in not permitting the required DNA test."

Further, it said,

"Normally, it is obligatory on the part of the trial Court to permit the prosecution to examine the witnesses mentioned in the charge sheet to prove its case. However, in the instant case, as the victim girl, her father, mother, brother and sister have not supported the case of the prosecution, the trial Court on the ground that all the material witnesses have turned hostile has not permitted further examination of the witnesses and has acquitted the accused."

Taking note of the submissions of the prosecution that it has a good case on merits and that it would make necessary applications to have the DNA test conducted in respect of the accused and the child which will prove the case of the prosecution, the bench said,

"The guilt of the accused can be established only after examination of all the witnesses as desired by the prosecution. It is a specific case of the prosecution that it has the necessary evidence to prove the guilt of the accused and it is desirous of making the necessary application to have a DNA test conducted and that the material witnesses have turned hostile only on the false promise of the accused."

Considering the submission made by the prosecution and under the peculiar facts and circumstances of the case, the Court added, "the trial court clearly erred in not permitting the prosecution to lead necessary evidence to prove the guilt of the accused."

Case Background:

On 29.04.2019, the father of the victim lodged a complaint with the police stating that the accused made his 16-year old daughter believe that he would marry her and when no one was there in the house, he came and had forcible sexual intercourse with her. It was alleged that the accused then fled to his native place without telling anybody.

Case Title: The State Of Karnataka v. Santhosh

Case No: Criminal Appeal No.414 Of 2021

Date Of Order: September 3, 2021

Appearance: Advocate Vijaya Kumar Majage, A/W Advocate Rashmi Jadhav, For Petitioner; Advocate N. R. Ravikumar For Respondent