The death sentence imposed by Trial Court out of an unfair trial is a judicial shock and a displeasure to the High Court: Justice G. Narendar

A mother of two children: an elder son named Sunil, aged 15 years and a younger daughter, aged 12 years, lived along with her husband, a mason by profession, in Byrandahalli village, wherein the woman worked as a coolie. The daughter, a student in grade 6, was allegedly sexually assaulted by the accused, Mr Venkateshappa. The accused lived in a house close to the house of the victim, wherein the accused developed a close relationship with the victim’s mother and her family; subsequently, the accused often visited the victim’s home to play with the two children, wherein the children addressed the accused as a grandfather. The facts of the case are as follows:

  1. That on May 01, 2018, the parents of the victim left the house for work, such that their children were left alone in the house.
  2. That at 01:00 A.M. the mother returned house to see the door of the house to be locked; consequently, the mother called out for her children, wherein her son responded from inside the house.
  3. That the son informed his mother about the door being locked from the outside; subsequently, the mother opened the door and asked  her son about the whereabouts of the victim.
  4. That the son said that he does not know about the whereabouts of his sister.
  5. That the mother called out for the victim, wherein the mother heard the voice of the victim coming from the direction of the bathroom of the house.
  6. That the mother found the door of the bathroom to be allegedly locked from inside, wherein she forcibly pushed against the said door; subsequently, the accused stepped outside from inside the bathroom, wherein the mother took a peep inside the bathroom.
  7. That the mother saw the accused rearranging her clothes. The mother observed that the pant and undergarment of the victim were removed; consequently, the mother inquired into the situation with the victim.
  8. That the victim said that the accused had removed her pant, undergarment and had slept on top of her whilst doing “something” to her private parts. It is worth noting that the accused had left the house of the victim by this time.
  9. That the victim waited for her husband to return from work; subsequently, she told her husband about the predicament of the victim, wherein the two proceeded to the Vemgal Police Station where they registered a complaint against the accused under Section 376 of the Indian Penal Code, 1860 and Section 4 and 6 of the Protection Of Children from Sexual Offences (POCSO) Act, 2012.
  10. That at 09:45 P.M. the accused was arrested.

Smt. B. S. Rekha of the District and Sessions Court, Kolar charged the accused on January 07, 201, with the offence of rape and aggravated penetrative sexual offence on the victim. The accused denied all allegations against him. The court sentenced the accused on the following counts: a) Death Penalty with a fine of Rs. 25,000/- for the offence punishable under Section 376 of the Indian Penal Code, 1860, b) Rigorous Imprisonment for 7 years with a fine of Rs, 10,000/- (in default to undergo simple imprisonment for 2 months) for the offence under Section 4 of the POCSO Act, 2012 (Aggravated Penetrative Sexual Assault), and c) Rigorous Imprisonment for 10 years with a fine of Rs. 10,000/- (in default to undergo simple imprisonment for 2 months). The court ordered the aforementioned sentences to run concurrently.

The doctor-on-record of the case examined the victim with the consent of the victim and her mother at 10:30 A.M. on May 02, 2015, and the doctor revealed that the victim was taken to the bathroom for an hour, wherein the doctor noted white seminal stains on the clothes of the victim whilst noting that the victim’s hymen was intact with no visible signs of external injuries. The doctor opined that there was no sexual penetration on the victim, wherein the doctor held that the accused attempted to rape the victim with unsuccessful sexual penetration. The counsel for the accused claimed that the DNA analysis of the supposed seminal stains and blood on the clothes of the victim without the express consent of the accused is a violation of the right to privacy of the accused. It is worth noting that the vaginal smear turned out to be negative for the DNA of the accused, wherein the DNA analysis was limited to the seminal stains on  the clothes of the victim. The court held that the unfair examination of the material pieces of evidence by the trial court convinced the two-judge bench of Justice of G. Narendar and Justice M. I. Arun of the Karnataka High Court to hold that it is unconvinced about the existence of neither aggravated sexual assault nor penetrative sexual assault. It is worth noting that the victim is 12 years of age; however, Section 9, Clause M refers to the application “sexual assault” of POCSO Act, 2012 to children under the age of 12. The bench pointed out that the trial court failed to consider the aforementioned fact whilst declaring its charge on the accused. The counsel for the accused held that the accused was not given a fair opportunity to explain himself in the trial court, wherein the counsel held that the trial court pre-judged the material evidence without giving any chance to the defence to cross-examine the evidence whilst allowing the prosecution to establish the guilt of the accused based on the said evidence.

The accused asked for a retrial (de novo trial) on three preliminary grounds: a) The application by the accused to examine the author of the said DNA report of the clothes of the victim was rejected by the trial court in bad faith, b) The application to resubmit the blood and semen samples of the accused for re-examination of DNA owing to the doubt by the accused over the validity of the original DNA report was rejected by the trial court, which is an alleged violation of Section 45 of the Indian Evidence Act, 1872, and c) The rejection of the trial court to summon the author of the said DNA report and the victim.

The bench held that the rejection of the aforementioned applications deprived the accused of an opportunity to defend himself in a court of law; additionally, the bench opined that Section 45 of the Indian Evidence Act, 1872 talks about the ‘opinions of experts,’ wherein the examination of the DNA report under Section 45 without summoning the author of the said document for cross-examination was held as unfair per the bench whilst downplaying on the reliance on the said evidence by the trial court to establish the guilt of the accused.

It is worth noting that the prosecution marked the DNA report through the aforementioned doctor and not through the author of the DNA report (Assistant Director of State Forensic Science Laboratory) whilst the trial court did not summon the latter because it relied on the iteration of the said report by the former doctor by reasoning that POCSO trials have no room for extended cross-examination of witnesses (the alleged incident took place in 2018 and it was yet to be concluded even after the conclusion of one year from the incident, which was opined by the trial court as unreasonable in the face of prima facie evidence). The bench held that the trial court erred in not examining if the doctor was competent to testify instead of the original author, wherein the bench called the said doctor as not a subject expert even though the individual is an academician and a medical doctor; consequently, the bench held the doctor as incompetent to dispose of the DNA report while holding the act of the trial court in treating the doctor as an expert (as expected under Section 45 of the Indian Evidence Act, 1872) as wrong since the doctor was not a subject expert per the bench.

The act of rejecting the applications of the accused and abrogation of the accused’s right to privacy by the trial court whilst ignoring the conclusive evidence of the vaginal smear of the victim raised doubts in the mind of the bench. The High Court upheld the appeal of a re-trial of the accused due to lack of judicial temperament in the judgement of the trial court. The sentence of the death penalty given by the trial court was deemed as judicially shocking by the High Court.

The bench ordered the following:

  1. The accused is entitled to summon the author of the DNA report for cross-examination either by it or on its behalf.
  2. Cross-examination of the witnesses (especially the parents of the victim) asked by the accused within the permissible limits of the contents and conclusions of the DNA report.
  3. The Trial Court must convene a re-trial and deliver a judgement within a period of six months from September 03, 2021, whilst the accused stays in custody; however, if the judgement fails to come within the said period, then the accused can claim for enlargement of bail (entitled to seek bail) under Section 436A of the Code of Criminal Procedure, 1973 (Maximum period for which an undertrial prisoner can be detained).
  4. The judgement of the Trial Court be placed before the Administrative Committee of the High Court owing to the displeasure of the bench surrounding the imposition of the sentence of capital punishment on the accused by the trial court.
  5. The death sentence of the trial court on the accused has been quashed by the bench of Justice G. Narendar and Justice M. I. Arun of the Karnataka High Court.

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