Guilt of the accused can be ascertained only after the examination of all the witnesses as desired by the prosecution: Karnataka High Court

In the case of The State of Karnataka v. Santosh (2021) CRL.A. 414/ 2021, a two-judge bench of Justice G. Narendar and Justice M. I. Arun of Karnataka High Court heard the appeal against the judgement and order of acquittal dated February 02, 2020, by the Additional Sessions and Special Judge, Chikkamagaluru.

On April 29, 2019, the complainant filed a complaint at the Aldur Police Station against the respondent for engaging in sexual intercourse with the complainant’s daughter, wherein the victim was studying in grade 10 at the time of the complaint. The complainant and his family live and work in a coffee estate, wherein the respondent arrived at the estate for work in 2018. The respondent and the victim allegedly fell in love, wherein the respondent allegedly promised the victim that he would marry her. The respondent allegedly arrived at the house of the complainant when the victim was allegedly alone; subsequently, the respondent allegedly had forcible sexual intercourse with the victim. The victim allegedly fell pregnant from one of the incidents. In the course of the investigation by the police, the victim reiterated the aforementioned facts to the police while the victim was subjected to medico-legal examination, wherein the said examination affirmed the sexual violence against the victim whilst affirming the seven-month pregnancy of the victim at the time of the complaint.

The trial court charged the respondent, aged 19 at the time of the complaint, under Section 376, Sub-Section 2, Clause N of the Indian Penal Code, 1860 (Commits rape repeatedly on the same woman). The court charged the respondent under Section 5, Clause J (ii) (Penetrative Sexual Assault on a child making the child pregnant as a consequence of the sexual assault) owing to the minor age of the victim. After the examination of the witnesses and pieces of evidence by the prosecution, the trial court acquitted the respondent of all charges.

It is worth noting that during the hearing at the trial court, the witnesses to the alleged offence (father, mother, brother and sister of the victim (victim)) turned hostile against the prosecution, wherein the contents of the complaint were denied by the complainant (the father of the victim), wherein the victim denied her statements made by her before the Aldur police station at the time of filing the complaint during the trial. The trial court denied the alleged forcible nature of the sexual intercourse. The hostility of the witnesses provoked the trial court to acquit the respondent based on the existing pieces of evidence: no evidence to prove that the pregnancy was caused by the respondent.

The appellant in the appeal content that a DNA test of the unborn foetus and the respondent were not conducted by the trial court; additionally, the appellant contends that the trial court did not give the prosecution the opportunity to examine other witnesses, including the examining doctor since the doctor examined the victim at the time of the complaint.

The bench held that no application was made by the appellant before the trial court for a DNA test; hence, the bench held that the claim of the appellant that the trial court had erred in not ordering a DNA test is wrong. The bench added that the refusal of the trial court to let the prosecution examine the doctor rests on the fact that the victim and the father, mother, brother and sister of the victim (material witnesses) turned hostile against the prosecution in the course of the trial. The counsel for the accused submitted that after the acquittal by the trial court, the accused has abandoned the victim and the alleged child.

The bench held that the guilt of the accused can be ascertained only after the examination of all the witnesses as desired by the prosecution while adding that the hostility of the material witnesses was an outcome of the false promise of the respondent. In a nutshell, the bench upheld the appeal in stating that the trial court truly erred in not allowing the prosecution to prove the guilt of the accused by examining all the witnesses available to the prosecution. The order of acquittal was set aside by the bench and the case has been submitted to the trial court to continue the trial against the respondent with liberty being given to the prosecution to adduce necessary evidence.

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