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1
R

IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH

DATED THIS THE 15TH DAY OF JULY, 2021

PRESENT

THE HON’BLE MR. JUSTICE R.DEVDAS

AND

THE HON’BLE MS. JUSTICE J.M.KHAZI

CRIMINAL APPEAL NO.100126/2018
C/W
CRIMINAL APPEAL NO.100231/2018

In Crl.A.No.100126/2018:

Between:

Santosh S/o. Govind Kerur,
Age: 24 Years, Occ: Auto Driver,
R/o. Krishnapur Oni, 2nd Cross,
Behind Manjunath Temple, Old Hubballi,
(now in judicial custody)
(now undergoing sentence)
…Appellant
(By Sri.T.R.PATIL, Adv.)

And:

1. The State of Karnataka,
(Old Hubballi Police Station, Hubballi)
Rep. by its State Public Prosecutor,
High Court of Karnataka,
Dharwad Bench.
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2. Ku.Rajeshwari D/o. Ishwar Doddamani,
Occ.Household work,
R/o.Old Hubballi, Krishnapur Oni,
1st Cross, Hubballi, Tq. Hubballi,
Dist.Dharwad
…Respondents
(By Sri.T.R.Patil, Adv.)

Cr.P.C., seeking to allow the appeal and call for records and to

set aside the judgment and order of conviction passed in Spl.

SC/ST No.10/2016, dated 27.02.2018 and sentence dated

09.03.2018 passed by the II Addl. District and Sessions and

Spl. Judge, Dharwad and consequently acquit the appellant

who is arrayed as accused No.1 for the offences punishable

under Section 6 of POCSO Act by allowing this criminal appeal.

In Crl.A.No.100231/2018:

Between:

State of Karnataka,
Rep. by the Police Sub Inspector,
Old Hubballi Police Station, Hubballi,
Through the Additional State
Public Prosecutor,
State Public Prosecutor,
Advocate General Office,
High Court of Karnataka, Dharwad Bench.
…Appellant
(By Sri.V.M.Banakar, Addl.S.P.P.)
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AND:

1. Santosh S/o.Govind Kerur,
Age: 24 years, Occ. Auto Driver,
R/o.Krishnapur Oni, 2nd Cross,
Behind Manjunath Temple,
Old Hubballi, Dist. Dharwad.

2. Ku.Rajeshwari D/o.Ishwar Doddamani,
Age: 26 years, Occ. Household,
R/o. Old Hubballi, Krishnapur Oni,
1st Cross, Hubballi, Dist. Dharwad.
…Respondents

(By Sri.T.R.Patil, Adv. for R1,
R2 served)

seeking to call for records and to set aside the judgment and

order in Spl. SC/ST No.10/2016, dated 27.02.2018 on the file

of II Addl. District and Sessions and Spl. Judge, Dharwad, so

far it relates to imposition of inadequacy sentence to the

respondent/accused and to sentence the respondent/accused

as provided under law.

These criminal appeals having been heard and reserved

for judgment on 07.07.2021, coming on for pronouncement of

judgment this day, J.M.Khazi J., delivered the following:
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JUDGMENT

These two appeals arise out of the judgment and order

dated 27.02.2018 in Spl.SCST No.10/2016 on the file of the II

Additional District and Sessions and Special Judge at Dharwad.

While Criminal Appeal No.100126/2018 is filed by accused

No.1 challenging his conviction and sentence of the offence

punishable under Section 6 of POCSO Act, 2012, the State has

filed Criminal Appeal No.100231/2018 seeking enhancement

of the punishment.

2. For the sake of convenience, the appellant in

Criminal Appeal No.100126/2018, who is respondent No.1 in

Criminal Appeal No.100231/2018 is referred to as “accused

No.1” and the State of Karnataka, who is appellant in Criminal

Appeal No.100231/2018 and respondent No.1 in the other

appeal is referred to as “prosecution”.

3. The allegations against accused Nos.1 to 3 are

that the prosecutrix belong to Samagara community and

accused Nos.1 to 3 knowing fully well that she belong to the

said community coming under the Schedule Caste category,

on 11.03.2013 at around 12:30 p.m., while the prosecutrix
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after completing the SSLC supplementary exam alongwith her

friend CW.17 Vaishnavi, accused Nos.1 and 2 came in an

autorickshaw and forcibly took the prosecutrix and her friend

in the said autorickshaw. While accused No.2 was driving the

autorickshaw, accused No.1 with the prosecutrix and her

friend sat in the back seat and directed accused No.2 to take

them to old bus stand. When prosecutrix requested him to

allow her to get down from the autorickshaw saying that her

father will be angry, accused No.1 slapped on her cheek. After

getting down from the autorickshaw, accused No.1 forcibly

took the prosecutrix to Mundagod by travelling in the bus and

when she refused to accompany him, he gave threat to her

saying that if she does not accompany him, he is going to

pour acid on her. From Mundagod accused No.1 took the

prosecutrix in a passenger auto to Kyasanakeri and alongwith

accused No.3 kept the prosecutrix in the house of CW.20

Manjula W/o. Shankar Ramanakoppa. Without informing

CWs.20 and 21 about the truth of having brought the

prosecutrix forcibly, accused No.1 kept the prosecutrix in the

house of CW.20 and saying that he is going to marry her,

accused No.1 had forcible sexual intercourse with the
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prosecutrix and for a total period of 20 days, accused No.1

wrongfully confined the prosecutrix and during this period, five

times he had forcible sexual intercourse with the prosecutrix.

The allegations against accused No.3 is that whenever the

prosecutrix told him that she wanted to go back, accused No.3

used to force her to stay on the pretext that accused No.1

would marry her and thereby accused Nos.1 to 3 have

4. After conducting detail investigation, the

Investigating Officer filed charge sheet against accused Nos.1

to 3 in Special SCST CC No.24/2013. All the accused persons

were on bail. After framing charge, a detail trial was held

against accused Nos.1 to 3, wherein 27 witnesses were

examined and Exs.P-1 to P-25 and MOs.1 and 2 were marked

for the prosecution. Till 21 witnesses were examined, accused

No.1 participated in the said proceedings and fully cross-

examined the witnesses. However, after the examination of
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accused No.1, he remained absconding and ultimately charge

against him came to be split up and the trial was proceeded

against accused Nos.2 and 3. Ultimately by judgment and

order dated 29.07.2015, the learned II Addl. District and

Sessions and Special Judge, Dharwad acquitted accused Nos.2

and 3. The split up case against accused No.1 was registered

as Special SCST CC No.10/2016. When non-bailable warrant

was issued against accused No.1, on 27.09.2016 he has

surrendered before the Court and he was taken to judicial

custody. Later on, his application for bail was rejected by the

learned Special Judge. On 29.06.2017 charge is framed

against accused No.1. He has pleaded not guilty and claimed

to be tried. Once again a full fledged trial was held against

accused No.1, wherein 22 witnesses are examined as PWs.1 to

22 and Exs.P-1 to 29 and MOs.1 and 2 are marked.

5. The learned Special Judge has recorded the

putting incriminating evidence arising in Special SCST CC

No.10/2016 and he has denied the incriminating material

against him. He has not chosen to lead defence evidence on

his behalf. By the impugned judgment dated 27.02.2018, the
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learned Special Judge has found accused No.1 guilty of the

However, accused No.1 is acquitted of the offence punishable

6. Being aggrieved by his conviction and sentence of

imprisonment, accused No.1 has filed Criminal Appeal

No.100126/2018 and seeking enhancement of the

punishment, the State has filed Criminal Appeal

No.100231/2018.

7. We have heard the learned counsel representing

accused No.1 as well as the Additional State Public Prosecutor

for the State and perused the records.

8. The learned counsel representing accused No.1

argued and submitted that the impugned judgment and order

of conviction is not only erroneous, but it is perverse,

capricious and contrary to the settled principles of law and

liable to be set aside. The Trial Court ought to have accepted

the evidence on oath by the victim girl in the second trial,
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wherein she has deposed on oath under what circumstances

she has given evidence in the earlier case i.e., Special SC/ST

CC No.24/2013.

9. He submitted that the Trial Court ought to have

accepted the best and the acceptable, plausible evidence

which is beneficial to the accused. The prosecutrix has

categorically deposed that accused No.1 never kidnapped and

he never committed any sexual assault on her and despite,

the Trial Court has wrongly come to the conclusion that the

earlier evidence on record is the best evidence and based on it

has rendered the judgment of conviction against accused No.1

and it is against the provisions of law.

10. He further submitted that the Trial Court should

have appreciated and extended the benefit of doubt to

accused No.1, when there is contradictory evidence on record

and there is no evidence to prove the allegations against

accused No.1. The medical evidence placed on record is

contrary to the allegations made against accused No.1. He

submitted that the prosecution story that the victim girl was

made to travel from place to place and stay in different places
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and at no point of time, prosecutrix has raised any alarm, is

not believable. The impugned order is based on assumptions,

presumptions, conjunctures and imaginary grounds.

11. The learned counsel further submitted that the

the Indian Evidence Act and held that the evidence recorded in

the earlier case is applicable and accused cannot raise

objections for the same. Accused No.1 never requested the

Trial Court to hold fresh trial or a de novo trial. It was the

prosecution which requested the Court to hold fresh enquiry in

support of its case, but failed to prove the charges against

accused No.1. Looking from any angle, in the impugned

judgment is not sustainable and prays to allow the appeal.

12. On the other hand, the learned Additional S.P.P.

submitted that the judgment and order of sentence passed by

the Trial Court so far as it relates to imposition of lesser

sentence/inadequacy of sentence is against the facts, law and

evidence on record and as such, liable to be set aside. The

learned Trial Judge has convicted accused No.1 for the

offences punishable under Sections 323, 344, 376 and 506
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imposing the sentence, the learned Sessions Judge has passed

order of sentence only for the offence punishable under

Section 6 of the POCSO Act and has not passed any order

regarding the sentence as against the other offences. The

same is perverse and not sustainable in the eye of law. He

would submit that it is well settled principles of law that a

separate sentence has to be passed as against each of the

offences, but the same is not done in the present case and

hence, it calls for intervention by this Court.

13. He would further submit that it is established that

accused No.1 has committed heinous offence of rape and

sexual assault on the prosecutrix, who belonged to SC/ST

Act is life imprisonment. Therefore, the Trial Court ought to

have sentenced the accused No.1 with life imprisonment and

failure to impose the same would result in miscarriage of

justice. The prosecution has proved that accused No.1 has

Penal Code and these offences prescribe punishment for not

less than ten years. The Trial Court has not imposed the

No.1 had no intention to take revenge against the prosecutrix

belonging to particular community and his act comes under

the category of private affairs and it is not proved that

accused No.1 having any such intention of taking revenge on

the members of particular community. By giving the said

reason, the Trial Court has not imposed the punishment of

imprisonment for life and thereby imposed only sentence

under Section 6 of the POCSO Act, stating that the other

offences merged with Section 6 of the POCSO Act. The said

reasoning assigned by the Trial Court is contrary to the facts

and evidence placed on record and therefore it is not

sustainable.

14. He submits that the Trial Court ought to have

imposed life imprisonment on accused No.1, as he has

committed grave offences against the prosecutrix, who was a

minor girl belonging to SC/ST community. This aspect of the

matter has not been properly considered by the Trial Court
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and thereby erred in imposing lesser sentence and prays to

allow the appeal.

15. The learned counsel appearing for the appellant/

accused No.1 further submitted that, even though after

arresting accused No.1, a de novo trial was conducted against

him and 22 witnesses were examined, out of which PWs. 1, 2,

4, 9, 11 to 21 and 22 are common witnesses, after finding

that, except official witnesses, the other witnesses including

the complainant and prosecutrix have turned hostile, the trial

Court has relied upon the evidence of the witnesses who have

supported the prosecution case in the earlier case i.e., Special

S.C.24/2013 and based on their evidence, has convicted

accused No.1 and it is prima facie illegal. He further

Cr.P.C. the evidence of the witnesses who have supported the

prosecution case in the earlier case i.e., Special S.C.24/2013

are not at all put to accused No.1 and as such, the trial court

could not have relied upon the evidence of those witnesses

and he further submitted that accused No.1 was taken by

surprise by so relying upon the evidence of the earlier case

and not referring to their evidence in the statement u/s. 313
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vitiated and accused is entitled for acquittal.

16. Before going to the merits of the case, it is

Procedure Code, which mandates that, the evidence is to be

taken in the presence of the accused. It reads as follows:

“273. Evidence to be taken in presence of
accused.

Except as otherwise expressly provided, all
evidence taken in the course of the trial or other
proceeding shall be taken in the presence of the
accused, or, when his personal attendance is
dispensed with, in the presence of his pleader.”

evident that, whatever evidence the court wants to rely upon,

it is to be recorded in the presence of the accused, and only

when his personal attendance is exempted, it can be recorded

in the absence of the accused, but his counsel will be present

and he will cross-examine the witness in the absence of the

accused and while seeking exemption, the learned counsel

representing the accused must specifically state that he will
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not dispute the identity of the accused. It means that in the

absence of the accused, the witness may not be in a position

to identify the accused and therefore, the counsel should give

an undertaking that he is not going to dispute the identity of

the accused.

18. Now coming to the subsequent proceedings

conducted against accused No.1. As rightly pointed out by

learned counsel representing accused No.1, in the earlier

proceedings, all the three accused persons participated in the

trial and in fact accused No.1 has also cross-examined PWs.1

to 21 and after the evidence of PW.21, he has absconded.

After making unsuccessful attempts to trace him, the learned

Special Judge has decided to split up the case as against

accused No.1 and after directing filing of spilt up charge sheet

against him, he has proceeded with the trial against accused

No.2 and 3 and ultimately acquitted them. Immediately after

the disposal of the earlier case resulting in acquittal of accused

No.2 and 3, accused No.1 has surrendered before the Court

and though his application for bail came to be rejected and the

trial was conducted against him afresh by summoning all the

witnesses, all the material witnesses except the official
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witnesses, including the complainant, prosecutrix, her friend

who was accompanied her in the auto rickshaw to some

distance have turned hostile to the prosecution. In spite of

they being treated as hostile and cross-examined by the

prosecution, nothing worthy is elicited to connect their

evidence to the complicity of accused No.1.

19. As rightly argued by the learned counsel

representing accused No.1, in the 313 statement, the learned

Special Judge has referred to the oral testimony of the

witnesses, who are examined in the subsequent trial, who

have all turned hostile. However, while addressing the

argument, the learned Public Prosecutor has made a

submission that, since PWs. 1 to 21 were examined in the

presence of accused No.1 and he has actively participated in

the trial and has also cross-examined them, their evidence

could be relied upon and based on such submissions, the

Special Judge has chosen to consider the evidence of those

witnesses in the earlier trial and relying upon their evidence,

the special Judge has come to the conclusion that the charges

against accused No.1 are proved.

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20. For this the learned Special Judge has relied upon

the interpretation clause defines the term ‘Evidence’ –

‘Evidence’ means and includes -,

(1) all statements which the court permits or

requires to be made before it by witnesses, in

relation to matters of fact under enquiry,

such statements are called oral evidence;

(2) all documents including electronic records

produced for the inspection of the court,

Such documents are called documentary

evidence.

21. Therefore, the statement of witnesses, which, in

order to consider as evidence should be required to be made

before the Court by the witnesses. Therefore, statements in

the earlier proceedings cannot be relied upon as evidence of

Evidence Act, which is an exception to the general rule that

the evidence of the witnesses should be direct.

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relevancy of certain evidence for proving, in subsequent

proceedings, the truth of fact therein stated. It reads as

follows:

“33. Relevancy of certain evidence for proving, in
subsequent proceeding, the truth of facts therein
stated.–

Evidence given by a witness in a judicial
proceeding, or before any person authorized by law to
take it, is relevant for the purpose of proving, in a
subsequent judicial proceeding, or in a later stage of the
same judicial proceeding, the truth of the facts which it
states, when the witness is dead or cannot be found, or
is incapable of giving evidence, or is kept out of the way
by the adverse party, or if his presence cannot be
obtained without an amount of delay or expense which,
under the circumstances of the case, the Court
considers unreasonable:

Provided– that the proceeding was between the
same parties or their representatives in interest; that
the adverse party in the first proceeding had the right
and opportunity to cross-examine; that the questions in
issue were substantially the same in the first as in the
second proceeding.”

23. The learned Special Judge has relied upon the

the evidence of those witnesses who have turned hostile in the
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present trial, but have supported the prosecution case in the

earlier proceedings. As the provisions of the Section state,

the evidence of such witnesses can be relied upon only when

the witness is dead, or cannot be found or incapable of giving

evidence or is kept out of the way by the adverse party or if

his presence cannot be obtained without an amount of delay

or expenses, which, under the circumstances of the case, the

court considers unreasonable. Even though the subsequent

conditions i.e., the proceedings were between the same

parties and the adverse party i.e., accused No.1 in this case,

in the first proceedings had the right and opportunity to cross-

examine and the question in issue was substantially one and

the same in both the proceedings satisfy, the main condition

that the witnesses who are examined in the earlier

proceedings were not able to be examined in the subsequent

proceedings for the reason that the witnesses are dead or they

cannot be found or they have become incapable of giving

evidence or the adverse party has kept them out of the way or

the presence of the witnesses cannot be obtained without an

amount of delay or expenses in securing their presence is not

and the evidence recorded in the earlier proceedings could be

relied upon. However, in the present case, the very fact that

all these witnesses were secured and they were able to

examine before the Court, makes it clear that the provisions of

24. Therefore, the learned Special Judge was in error

in relying upon the evidence of the witnesses who were

examined in the earlier proceedings and who have supported

the prosecution case, but have not supported the prosecution

case in the present proceedings and they are treated as

hostile.

25. The common witnesses who are examined for the

prosecution in both cases are PWs. 1, 2, 4, 9, 11 to 21 and

22. Out of them, except PWs.16 to 21, the rest of the

witnesses have not supported the prosecution case including

the complainant, prosecutrix and her friend CW.17 Vaishnavi,

who accompanied her in the autorickshaw to some distance

when the prosecutrix was being kidnapped by accused Nos.1

and 2. However, this will not give authority to the learned
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Special Judge to refer to the evidence of these witnesses who

have turned hostile in the present case, but have supported

the prosecution in the earlier proceedings and rely upon such

evidence, especially when a de novo trial was conducted.

provision for recording the evidence in the absence of the

accused. Provision is made to safeguard the evidence of the

witnesses who may not be available due to efflux of time, for

various reasons. There may be cases where the accused may

abscond till the prosecution witnesses are either dead or

incapable of giving evidence or cannot be found or their

presence cannot be procured without an amount of delay,

expense or inconvenience, which under the circumstances of

the case would be unreasonable and after taking advantage of

the absence of the witnesses, he may surrender and in that

event, the prosecution may not be in a position to get a

conviction against the accused.

27. Therefore, in the cases where the accused has

absconded and after making all the efforts to secure his

presence, if the prosecution is unable to keep the accused
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present before the Court, then it may request the Court to

record the evidence of all those witnesses or at least all the

material witnesses and keep their testimony intact to be used

in future after the accused is secured. Even in such cases,

subsequent to the securing the presence of the accused, once

again the prosecution is required to secure the presence of the

witnesses who are all available and are capable of giving

evidence and the court is required to record their evidence in

the presence of the accused after providing of an opportunity

to cross-examine such witnesses. Only those witnesses who

are dead or incapable of giving evidence or cannot be found or

their presence cannot be procured without an amount of

delay, expense or inconvenience, the evidence of such

be relied upon.

28. In the present case, even though in the earlier

proceedings, the evidence of PWs. 1 to 21 were recorded in

the presence of the accused No.1 and he also had the

opportunity to cross-examine them and in fact he has cross-

examined them, still having regard to the fact that charge

against him came to be split up and he was removed from the
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earlier proceedings and the trial was proceeded with against

accused Nos. 2 and 3 only, the earlier evidence cannot be

relied upon by the prosecution or the Court to convict accused

No.1. For this reason only, a fresh trial was conducted against

accused No.1 and all those witnesses who were available were

examined. However, unfortunately, this time, the witnesses

who had supported the prosecution case in the earlier

proceedings have turned hostile. The learned Public

Prosecutor who has cross-examined them has not made any

attempt to place their testimony i.e., certified copies of their

testimony recorded in the earlier proceedings on record and

refer and get them marked. In that way he could have

brought on record their testimony in the earlier proceedings

and thereafter cross-examined them. In that event, the

evidence in the earlier proceedings could have been relied

upon. In the absence of the said exercise, the learned special

judge has erred in relying upon the evidence of those

witnesses in the earlier proceedings, that too without putting

the said evidence in the statement of accused No.1 under

arguments, the Special Judge has thought about relying upon
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the evidence of those witnesses, who have supported the

prosecution case in the earlier proceedings and based on their

evidence, the learned special judge has proceeded to convict

accused No.1. When the evidence of all those witnesses who

have supported the prosecution case in the earlier proceedings

cannot be used against him.

29. In this regard, the learned counsel representing

accused No.1 has relied upon the following decisions, wherein

the Hon’ble Supreme Court has discussed the significance of

and in case of failure, the Court cannot rely upon such

evidence which is not specifically put to the accused. These

decisions are aptly applicable to the case on hand. Since the

trial Court has failed to refer to the accused in his statement

recorded in the earlier trial, it was not open to the trial Court

to rely upon it, to hold that the charges levelled against

accused No.1 are proved. On this ground also the impugned

judgment is not sustainable.

i. (2006) 12 SCC 306
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(Vikramjit Singh @ Vicky Vs. State of
Punjab)

ii. (1984) 4 SCC 116
(Sharad Birdhichant Sarda Vs. State of
Maharashtra)

iii. 1993 SCC (Crl.) 824
(Usha K. Pillai Vs. Raj K. Srinivas and
Others)

30. Insofar as the merits of the case is concerned,

admittedly, all the material witnesses have not supported the

prosecution case including the prosecutrix, her father, who

has filed the complaint as well as her friend, who accompanied

her in the autorickshaw for some distance. Except the

evidence of official witnesses, there is no material to connect

the accused No.1 to the charges leveled against him. For this

reason only, the learned trial Judge has ventured to rely upon

the evidence of those witnesses in the earlier case. Therefore,

based upon the evidence of these witnesses, who have turned

hostile, we hold that the prosecution has failed to prove the

allegation against accused No.1. He is the main accused and

the allegations against accused No.2 and 3 are that, they

helped accused No.1 in kidnapping the prosecutrix and that he

raped her while wrongfully confining her. When in spite of

having the material witnesses supporting the prosecution
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case, the trial against accused Nos. 2 and 3 has ended in

acquittal, in the absence of evidence of material witnesses, we

hold that accused No.1 is also entitled for the benefit of

acquittal.

31. Thus from the above discussion, we are of the

opinion that the impugned judgment and order of conviction of

accused No.1 based on the evidence recorded in the earlier

proceedings is not sustainable. Consequently, the Criminal

Appeal No.100126/2018 filed by accused No.1 deserves to be

allowed, while Criminal Appeal No.100231/2018 filed by State

for enhancement of the punishment is liable to be dismissed

and accordingly, we proceed to pass the following:

ORDER

i) Criminal Appeal No.100126/2018 filed by
accused No.1 is allowed. The judgment
and order of conviction dated 27.02.2018
in Spl.SCST No.10/2016 on the file of the
II Additional District and Sessions and
Special Judge at Dharwad is set aside.

Accused No.1 is acquitted of all the
charges. He is undergoing sentence. He
shall be released forthwith, if his presence
is not required in any other case.

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ii) Office is directed to send intimation to the
concerned jail authorities.

iii) Consequently, Criminal Appeal
No.100231/2018 filed by the State for
enhancement of sentence is dismissed.

Sd/-
JUDGE

Sd/-
JUDGE
Rsh/gab