Man Accused Of Raping Wife & Minor Daughter - Special Court Can Try Offences Under S.376 IPC & POCSO : Karnataka High Court

"The designated Court hearing cases relating to offences under the POCSO Act can try the offences under the IPC as well, in the facts of the case."

The Court held that the exception 2 to Section 375 IPC - which exempts marital rape from rape offence - is not applicable to the petitioner as no exception can be absolute.

It was contended on behalf of the petitioner that the case is being tried before the specially designated Court under the Act, which Court is not empowered to consider the offences under the Code and therefore, the trial has to be segregated. The IPC offences should be tried by the designated Court and the POSCO offences by the special Court.

The bench said, "This submission is unacceptable in the peculiar facts of this case. The mother and the child both are victims of brutal acts on the part of the petitioner. It is the mother who has complained against the petitioner for the offences committed by him both on herself and her daughter. The mother is also privy to what is narrated in the complaint. Both the cases are triable only by the Sessions Court and the Judge who is now to try both the cases is the Sessions Judge."

Further the court said ,"In several cases two special enactments come into play for a particular offence – one under the Code and the other under the SC/ST (Prevention of Atrocities) Act, both of which are triable by the Sessions Court. One may involve a child and the other may involve the offences under Atrocities Act. Therefore, if the Court does not have jurisdiction itself to try the offences that are now alleged, it would have been a different circumstance altogether and the trial ought to have been segregated."

The court relied on the Supreme Court judgement in the case of Vivek Gupta V. CBI (2003) 8 SCC 628 and said, "in the light of the judgement of the Apex Court and the provisions of the Act, I am of the considered view that the trial that is now sought to be held before the POSCO Court by the Sessions Judge can also try the offences alleged under the Code."

Prosecution cannot rest its case on preponderance of probability, under Section 29, 30 of POCSO Act.

The court relied on judgements of the Apex Court and High Court and said, "Notwithstanding the presumption available against the accused in favour of the prosecution in terms of Sections 29 and 30 of the Act, proving of foundational facts by the prosecution beyond all reasonable doubt is imperative."

It held, "The prosecution cannot, on the basis of preponderance of probability, rest its case on the ground that proving of innocence is shifted on the accused in the light of Sections 29 and 30 of the Act."

It added, "The prosecution has to prove the foundational facts beyond all reasonable doubt and cannot rest its case on preponderance of probability, merely because the statute imposes reverse burden upon the accused on proving innocence in place of the prosecution proving the guilt."

Victim told to approach the trial court with regard to social security and compensation.

The court said, "It is open to the petitioner-victim to file any such application before the competent Court where the trial would begin and be in progress.

Also from the judgment : Husband Raping A Wife Is Amenable To Punishment Under Section 376 IPC: Karnataka High Court On Marital Rape

Case Title: Hrishikesh Sahoo V State Of Karnataka

Case No: Writ Petition No.48367 Of 2018

Citation: 2022 Livelaw (Kar) 89

Date Of Order: 23rd Day Of March, 2022

Appearance: Senior Advocate Hashmath Pasha, A/W Advocate Ranjan Kumar, P For Petitioner

Advocate Namitha Mahesh B.G., Aga A/W Sri R.D Renukaradhya, For R1

Advocate Madanan Pillai R For R2 A.D.Ramananda, For R3

Assistant Solicitor General Of India Shanthi Bhushan Represented The Central Government

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