[Rape] Kar HC | Guilt of the accused can be established only after examination of all the witnesses as desired by the prosecution; Matter remitted back to adduce necessary evidence

Karnataka High Court:  A Division Bench of G I Narendar and M I Arun JJ. allowed the appeal and set aside the order of acquittal.

The facts of the case are such that complainant filed a complaint that his daughter/victim and the accused Santhosh who were both working in a coffee estate fell in love with each other. The accused made his daughter believe that he would marry her and when no one was there in the house, he came and had forcible sexual intercourse with his daughter and that from past 20 days he has gone away to his native without telling anybody. Presently, his daughter Preethi is seven months pregnant and accordingly, he has sought for initiating criminal proceedings against the accused Santhosh. The instant criminal appeal was filed under Section 378(1) and (3) Criminal Procedure Code i.e. Cr. PC praying to grant leave to filed an appeal against the judgment and order of acquittal dated 01-02-2020 passed by Additional Sessions and Special Judge Chikkamagaluru acquitting the respondent accused for the offence punishable under Section 376 (2) (n) Penal Code, 1860 i.e. IPC and Section 5 (j) (ii) and of Prevention of Children from Sexual Offences Act, 2012 i.e. POCSO Act.

The investigation was conducted and statement of the victim was taken on record. The Trial Court acquitted the accused as he found that all the material witnesses turned hostile and thus did not permit further examination of the witnesses.

The main issue to be dealt in the instant matter is whether the trial Court has erred in not directing conduct of DNA test of the child and the accused, whether it erred in not permitting the prosecution to examine other witnesses.

Counsel appearing for the accused submitted that presently, the accused and the victim are married and are leading a happy married life. Counsel for the victim submitted that pursuant to the said acquittal, the accused has abandoned her and the child and is untraceable.

The Court after perusing all the documents placed on record and production of witnesses observed that 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 necessary evidence to prove the guilt of the accused and it is desirous of making necessary application to have DNA test conducted and that the material witnesses have turned hostile only on the false promise of the accused.

The Court thus held “trial Court clearly erred in not permitting the prosecution to lead necessary evidence to prove the guilt of the accused.”

[State of Karnataka v. Santhosh, Criminal Appeal No. 414 of 2021, decided on 03-09-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Appellants: Mr. Vijaya Kumar Magaje and Ms. Rashmi Jadhav

For Respondents: Mr. N R Ravikumar

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