Extracted from the PDF above. The PDF is authoritative.
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HC-KAR NC: 2025:KHC:42063 CRL.A No. 1497 of 2024 C/W CRL.A No. 1400 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO. 1497 OF 2024 (C) C/W CRIMINAL APPEAL NO. 1400 OF 2024
IN CRL.A No. 1497/2024 BETWEEN:
SRI VENKATESH @ VENKI S/O NAGARAJU AGED ABOUT 23 YEARS, R/AT NO.136, 5TH MAIN , 6TH CROSS, BALAJI NAGAR, ITI LAYOUT, BSK 3RD STAGE, BENGALURU - 560 085. …APPELLANT (BY SRI. BHAIRAV G V.,ADVOCATE) AND:
1.
STATE OF KARNATAKA BY CHANNAMANAKERE, ACHUKATTU POLICE STATION, REPRESENTED BY ITS STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU-560 001.
2.
SMT. BHARATHI A., W/O RAMESH AGED ABOUT 46 YEARS R/AT NO.85, AYYAPPA SWAMI TEMPLE
Digitally signed by LAKSHMINARAYAN N Location: HIGH COURT OF KARNATAKA
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BACK GATE, BSK 3RD MAIN BANGALORE - 560 085.
…RESPONDENTS (BY SRI. B. LAKSHMAN, HCGP FOR R1;
SRI. TEJAS N., ADVOCATE FOR R2)
THIS CRL.A IS FILED U/S 374(2)OF CR.PC BY THE ADVOCATE FOR THE APPELLANT PRAYING TO SET ASIDE THE
JUDGMENT OF CONVICTION DATED 08.12.2023 AND ORDER OF SENTENCE DATED 20.12.2023 IN SPL.C.C.NO.1591/2022 BE DISMISSED ACQUITTING THE APPELLANT OF ALL THE CHARGES MADE AGAINST HIM FOR THE OFFENCE P/U/S 363, 366, 376 OF IPC AND SEC.4,5(L),6 OF POCSO ACT AND SEC.9 OF PROHIBITION OF CHILD MARRIAGE ACT AND ETC.
IN CRL.A NO. 1400/2024 BETWEEN:
SRI VENKATESH @ VENKI S/O NAGARAJU AGED ABOUT 23 YEARS R/AT NO.136, 5TH MAIN 6TH CROSS BALAJI NAGAR ITI LAYOUT BSK, 3RD STAGE BENGALURU - 560 085
PERMANENT ADDRESS KALLIKERE GOLLAPALLI VILLAGE POST PENUMANU TALUK CHITTUR, ANDRA PRADESH. ...APPELLANT (BY SRI. BHAIRAV G V.,ADVOCATE) AND:
1.
STATE OF KARNATAKA BY CHANNAMANAKERE ACHUKATTU PLS REP BY ITS PUBLIC PROSECUTOR HIGH COURT OF
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KARNATAKA
2. BHARATHI.A W/O RAMESH AGED ABOUT 46 YEARS R/AT NO.85 AYYAPPA SWAMI TEMPLE BACK GATE B.S.K III MAIN BENGALURU 560 085 ...RESPONDENTS (BY SRI. LAKSHMAN, HCGP FOR R1;
SRI. TEJAS N., ADVOCATE FOR R2)
THIS CRL.A IS FILED U/S 374(2) CR.PC PRAYING TO SET ASIDE THE JUDGMENT PRONOUNCED OF CONVICTION DATED 08.12.2023 AND ORDER OF SENTENCE DATED 20.12.2023, SPL.C.C.NO.1779/2021 BE DISMISSED ACQUITTING THE APPELLANT OF ALL THE CHARGE MADE AGAINST HIM AND ETC.
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
ORAL JUDGMENT
Crl.A No.1400/2024:
In this appeal, the appellant is challenging the
judgment of conviction and order on sentence dated 08.12.2023 passed by the Addl. City Civil and Sessions Judge-FTSC-III, Bengaluru in Spl.C.C. No.1779/2021. - 4 -
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2. The brief facts leading to this appeal are that, the Inspector of Police, Channammanakere Achukattu submitted charge sheet against accused for the offence punishable under Sections 363, 366, 376 and 506 IPC and Sections 4, 5(l) and 6 of POCSO Act. It is alleged by the prosecution that CW2-victim girl aged about 16 years being the daughter of CW1 and CW3 was residing along with her parents at Door No. 85, 1st floor, near Ayyappaswamy Temple, Banashankari III Stage, and pursuing her studies. The accused came in contact with this victim girl, while she was going to college and he started inducing her that he is in love with her and insisting her to make love with him and thus he was roaming around her. The accused started threatening the victim girl that if she refused his love proposal, he will kill her and also kill her parents and forcibly made the victim girl to make love with him.
That on 31.08.2021 at about 10.00 a.m the accused went near the house of CW2 and putting her under life threat by showing a knife, he has
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forcibly kidnapped the victim her from the custody of her parents with an intention to marry her, having full knowledge that the victim is a minor and has forcefully taken her along with him in an autorickshaw in the market area and from there he has taken her to Thavanapalli Village, Chittoor District, Andhrapradesh in a bus and taken her to Gottapalli Village and at Gottapalli Village, the accused kept the victim girl in a newly constructed cattle shed belonged to CW4 and on 02.09.2021 at about 09.00 a.m. the accused, in spite of repeated refusal of victim, also having full knowledge that victim girl is a minor, has forcibly committed penetrated sexual assault on her and till 05.09.2021 the accused, in the very same place, on many occasions, has repeatedly committed sexual assault on her and thereby committed the offence punishable under Sections 363, 366, 376 and 506 and Sections 4, 5(1) and 6 of POCSO Act. 3. The trial Court has framed the charges. The accused was enlarged on bail and appeared through his
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counsel. The charges were framed by the trial Court for the aforesaid offences. The same was read over and explained to the accused. Having understood the same, the accused pleaded not guilty and claimed to be tried. 4. To bring home the guilt of the accused, the prosecution got examined 12 witnesses as PW1 to PW12 and got marked 25 documents as Exhibit P1 to P25 and marked 9 material objects as MO1 to 9 and closed its evidence. 5.
The statement of accused under Section 313 of Cr.P.C. was recorded. The accused has totally denied the evidence of prosecution witnesses. However, the accused has not adduced any defence evidence on his behalf. 6. Having heard the arguments on both sides the trial Court has convicted the accused for the offences under Sections 363, 366, 376 and 506 of Indian Penal Code and Sections 4, 5(1) and 6 of POCSO Act and also passed sentence. - 7 -
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7. Being aggrieved by this judgment of conviction and order on sentence, the appellant has preferred this appeal. 8. The learned counsel for the appellant would submit that the trial Court has not properly appreciated the evidence on record. Though there are material omissions and contradictions in the evidence of victim and further statement recorded by the Investigating Officer, the trial Court has not considered the same. The trial Court has not provided sufficient opportunity to cross- examine the prosecution witnesses. The trial Court has also not properly appreciated the evidence on record as to the age of the victim. It is submitted that the victim was not minor at the time of alleged commission of offence. The counsel for the accused has filed an application under Section 311 of Cr.P.C. The same was allowed by the trial Court on 21.08.2023 with cost of Rs.1,000/-. Thereafter, summons was issued to PW3 and PW4 and the case was posted to 05.09.2023. On that day, counsel for the
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accused sought time to cross-examine, but the trial Court has dismissed the prayer of the counsel for the accused and cross-examination of PW3 and PW4 was taken as nil.
That on 08.12.2023, Application was filed under Section 311 of Cr.P.C to recall PW1 and PW2 for further cross- examination. The same was rejected by the trial Court. The trial Court has not assigned proper reasons to reject the application filed under Section 311 of Cr.P.C. Hence, he seeks to remand the case to the trial Court with a direction to provide opportunity to the appellant to cross- examine the prosecution witnesses and also for further cross-examination of PW1 and PW2. 9. As against this, Sri Tejas N., learned counsel for respondent No.2 would submit that the trial Court has provided sufficient opportunity to the accused to cross- examine. However, the accused has not cross-examined the prosecution witnesses. The trial Court has properly appreciated the evidence on record in accordance with law and facts. Absolutely, there are no materials to remand
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the case to the trial Court. Hence, he sought for dismissal of the appeal. 10. Learned HCGP appearing for the respondent- State, fairly submits that the matter may be remanded to the trial Court for cross-examination of prosecution witnesses. However, he submits that the accused shall not be released on bail as there are possibilities of accused threatening/tampering the prosecution witnesses. 11. Having heard the arguments on both sides, the following points would arise for my consideration in these appeals:
1. Whether the appellant has made out a ground to remand the matters to the trial Court with a direction to provide opportunity to the accused to cross-examine the prosecution witnesses? 2. What order? - 10 -
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Regarding Point No.1:
12. Before appreciating the materials on record, it is essential to consider the judgment of the Hon'ble Apex Court in the case of Sovaran Singh Prajapati Vs. State of Uttar Pradesh, reported in 2025 SCC OnLine SC
351.
In this decision, the Hon'ble Apex Court discussed the right to a fair trial guaranteed under Article 21 of the Constitution of India. The Court also followed the three- judge Bench decision in Vinubhai Haribhai Malaviya Vs. State of Gujarat (2019)17 SCC 1 and referenced other landmark rulings such as Zahira Habibulla H. Sheikh Vs. State of Gujarat ("Best Bakery Case") (2004)4 SCC 158; Sidhartha Vashisht Vs. State (NCT of Delhi) (2010)6 SCC 1; J. Jayalalithaa Vs. State of Karnataka (2014)2 SCC 401; and Asha Ranjan Vs. State of Bihar (2017)4 SCC 397, at paragraph 10.6 of the judgment, the Hon'ble Apex Court has laid down the following principles on the meaning and significance of a fair trial:
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"10.6. From a studied analysis of the above decisions, the following principles as to the meaning and import of fair trial, can be illustratively deduced: (1) Fair and Just investigation is the starting point of the fair trial process. (2) This process is a triangulation of the rights of the accused, the victim and the community that acts through the state and prosecuting agencies. (3) Process of investigation and trial must be completed with promptitude. (4) The trial Judge has to play an active role in the search for truth, which a trial, undoubtedly has to be. (5) Bias of all nature, against the accused, the victim, the witnesses; or the cause of/at trial, has to be eliminated. (6) The process of fair trial is to be done to maintain public confidence & uphold the majesty of law. (7) The atmosphere in which a trial is to be conducted in a fair manner has to be in an atmosphere of ‘judicial calm’. (8) Unfair prolongation of trial is an affront to the ideal of fair trial.
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(9) The ideal of fair trial has protection in the Constitution and in the international legal framework, as a basic human right. (10) The centripodal purpose of fair trial is to ensure that injustice is avoided as far as possible, but equally ‘fair trial’ is not leveraged to a point which would hinder the established procedure of Cr. P.C. In other words, the command of the Code cannot be ignored at the behest of the prosecution or defence, in the name of fair trial."
13. It is also relevant to mention here as to the directions regarding the role of Public Prosecutors and appointments of counsel through legal process. In this regard, Hon’ble Apex Court, in the case of Ashok V. State of Uttar Pradesh reported in (2025)2 SCC 381, has pointed out as to the role of the Public Prosecutors and appointments of counsel through legal aid processes. In the course of judgment at paragraphs 38 to 38.9, it is observed thus:
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“38. Our conclusions and directions regarding the role of the Public Prosecutor and appointment of legal aid lawyers are as follows:
38.1. It is the duty of the Court to ensure that proper legal aid is provided to an accused;
38.2. When an accused is not represented by an advocate, it is the duty of every Public Prosecutor to point out to the Court the requirement of providing him free legal aid. The reason is that it is the duty of the Public Prosecutor to ensure that the trial is conducted fairly and lawfully;
38.3.
Even if the Court is inclined to frame charges or record examination-in-chief of the prosecution witnesses in a case where the accused has not engaged any advocate, it is incumbent upon the Public Prosecutor to request the Court not to proceed without offering legal aid to the accused;
38.4. It is the duty of the Public Prosecutor to assist the Trial Court in recording the statement of the accused under Section 313 of the CrPC. If the Court omits to put any material circumstance brought on record against the accused, the Public Prosecutor must bring it to the notice of the Court while the examination of the accused is being recorded. He must assist the Court in framing the questions to be
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put to the accused. As it is the duty of the Public Prosecutor to ensure that those who are guilty of the commission of offence must be punished, it is also his duty to ensure that there are no infirmities in the conduct of the trial which will cause prejudice to the accused;
38.5. An accused who is not represented by an advocate is entitled to free legal aid at all material stages starting from remand. Every accused has the right to get legal aid, even to file bail petitions;
38.6. At all material stages, including the stage of framing the charge, recording the evidence, etc., it is the duty of the Court to make the accused aware of his right to get free legal aid. If the accused expresses that he needs legal aid, the Trial Court must ensure that a legal aid advocate is appointed to represent the accused;
38.7.
As held in the case of Anokhilal5, in all the cases where there is a possibility of a life sentence or death sentence, only those learned advocates who have put in a minimum of ten years of practice on the criminal side should be considered to be appointed as amicus curiae or as a legal aid advocate. Even in the cases not covered by the categories mentioned above, the accused is entitled to a legal aid advocate who has good knowledge of
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the law and has an experience of conducting trials on the criminal side. It would be ideal if the Legal Services Authorities at all levels give proper training to the newly appointed legal aid advocates not only by conducting lectures but also by allowing the newly appointed legal aid advocates to work with senior members of the Bar in a requisite number of trials;
38.8. The State Legal Services Authorities shall issue directions to the Legal Services Authorities at all levels to monitor the work of the legal aid advocate and shall ensure that the legal aid advocates attend the court regularly and punctually when the cases entrusted to them are fixed;
38.9. It is necessary to ensure that the same legal aid advocate is continued throughout the trial unless there are compelling reasons to do so or unless the accused appoints an advocate of his choice."
14. As regards appreciation of evidence in Crl.A. No.1400/2024 is concerned, a perusal of the evidence of PW3 makes it clear that the trial Court has recorded the evidence of PW3 on 06.08.2022. On that day, cross- examination of PW3 deferred at the request of counsel for the accused and the case was posted to 22.08.2022.
That
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on 22.08.2022, the accused was produced from Judicial Custody in Special Case No.1593/2022. On that day, PW3 was absent, PW4 was present and NBW was issued against PW3. Then the case was listed on 03.09.2022. On 03.09.2022 the accused was not produced from judicial custody. Hence, case was posted to 16.09.2022. That on 16.09.2022, PW1 remained absent hence case was posted to 06.10.2022. On 06.10.2022 accused absent and he was in the judicial custody in UTP No.4735/2022. Hence, body warrant was issued against him and case was posted to 18.10.2022. On 18.10.2022, the accused was produced under body warrant. On that day also, PW3 was absent and case was posted to 03.11.2022. That on 03.11.2022, the accused who was in judicial custody was produced through video conference and the counsel for the accused was absent. Hence, cross of PW3 and PW7 was taken as nil. Thereafter, case was posted from time to time and the counsel for the accused has filed application to recall PW3 and PW4 and same was allowed by the trial court on
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21.08.2023 and case was posted to 05.09.2023. That on 05.09.2023, the counsel for the accused sought time for cross-examination. The trial Court has rejected the prayer of the counsel for the accused and prosecution side evidence was taken as nil. On the same day, trial Court has recorded the statement under Section 313 of Cr.P.C.
15. A perusal of the deposition of PW4, reveals that trial Court has recorded the evidence on 20.08.2022. On that day, counsel for the accused filed retirement memo and in the deposition of PW4, it is mentioned as under:
”¥ÁnøÀªÁ®Ä ªÀiÁqÀ®Ä DgÉÆÃ¦ ºÁdjzÀÄÝ DgÉÆÃ¦ ¥ÀgÀ ªÀQîgÀÄ vÁªÀÅ DgÉÆÃ¦AiÀÄ ¥ÀæPÀgÀt £ÀqɸÀĪÀÅ¢®è JAzÀÄ jmÉÊgïªÉÄAmï ªÉÄªÉÆÃ ¤ÃrgÀÄvÁÛgÉ . DgÉÆÃ¦AiÀÄ£ÀÄß PÉüÀ¯ÁV £À¤ßAzÀ ¥ÁnøÀªÁ®Ä E®è JAzÀÄ ºÉýgÀÄvÁÛgÉ. ¥Ánà ¸ÀªÁ®Ä ªÀÄÄAzÀÆqÀ®Ä AiÀiÁªÀÅzÉà ¸ÀPÁgÀtUÀ½®è DzÀÝjAzÀ ¥ÁnøÀªÁ®Ä E®è JAzÀÄ ¥ÀjUÀt¸À¯Á¬ÄvÀÄ.”
16.
The trial Court has not passed any order on retirement memo. A perusal of deposition of PW5, PW6, PW7, PW9, PW10 and PW12, reveals that though the Court has recorded that the counsel for the accused seeks time
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for cross-examination, but has rejected the prayer of the counsel that there are no grounds to adjourn the case. While recording the evidence of prosecution witnesses, the accused was in judicial custody. When the accused is in judicial custody and if the counsel for the accused has not prosecuted the case, it is the duty of the Court to appoint amicus curiae to prosecute the case on behalf of the accused. At least, the Court has to intimate the accused as to the legal consequences of non-cross examination of prosecution witness. However, the trial Court has not followed this procedure. When the counsel for the accused is not ready to cross-examine the prosecution witnesses, and moreover when the counsel for the accused has filed retirement memo, the trial Court has not passed any order on the retirement memo recorded the statement of prosecution witnesses without providing sufficient opportunity to the accused. When the offences alleged are heinous in nature, it is the bounden duty of the Court to
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conduct fair trial as guaranteed under Articles 20 and 21 of the Constitution of India. Crl.A No.1497/2024
17. This appeal is pertaining to C.C No.1591/2022. The trial Court has commenced the trial on 23.11.2022. On 23.11.2022, the trial Court recorded statements of PWs1 and 2, in presence of the accused through video conference. On that day learned counsel for the accused sought time for cross-examination. The trial Court granted time with cost of Rs.1,500/- to each witness. Then case was posted to 24.11.2022.
On that day, accused was produced from the judicial custody and witnesses were not present. Hence, summons was issued to CW1 and CW2 and NBW was issued to CW4 to CW6 and the case was posted to 07.12.2022. On 07.12.2022, PW1 and PW2 were present. Learned counsel for the accused prayed time for cross-examination as his Senior is held up in some other case. The trial Court has passed an order that no grounds made out to adjourn the case for cross-
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examination. Hence, cross-examination of PW1 and PW2 taken as nil, by rejecting the prayer by the learned counsel for the accused. ,Witnesses discharged. Then the Court has issued NBW CW4 to CW6 and issued summons to CW7 to CW9 and posted the case on 21.12.2022., On 21.12.2022, accused was produced from the judicial custody. CW8 and CW9 were present and examined as PW3 and PW4 and then the case was posted to
05.01.2023. That on 05.01.2023, the accused produced from judicial custody and proclamation warrant was issued against CW4 to CW6 and NBW was reissued to CW7 and case was posted to 13.01.2023. That on 05.01.2023 the accused was released on bail in view of the order passed in Crl.Misc No.9250/2022 on the file of FTSC-III. Then case was posted to 05.01.2023. That on 08.02.2023 CW4, CW7 and CW19 are examined as PW5, PW6 and PW7 respectively. On that day, learned counsel for the accused was absent. Hence, the Court has passed an order that cross-examination is taken as nil. That on 05.09.2023,
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the Court has passed an order to recall PW1 and PW2. On the application filed on behalf of the accused on that day,
learned counsel sought time for cross-examination. The trial Court has rejected his prayer and passed an order as
"no cross-examination of PW1 and PW2". The trial Court has also dismissed the Application filed by the accused under Section 311 of Cr.P.C as per the order dated
08.12.2023. When the accused is in judicial custody, it is not possible for him to pay the cost imposed by the trial Court. When the accused is unable to pay the cost, then the trial Court can take necessary steps to recover costs in the procedure known to law, instead, the trial Court cannot curtail rights of the accused to cross-examine PW1 and PW2, on the ground that he has not paid the cost. When the learned counsel has not properly prosecuted the case of the accused, it is the duty of the trial Court to provide legal assistance to the accused as per the guidelines issued by the Hon’ble Apex Court as stated supra. In the case on hand, the trial Court has not
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followed the due procedure, as also the guidelines issued by the Hon’ble Apex Court. 18. A perusal of the proceedings which are reflected in the order sheet, does not reveal that the trial Court has conducted fair trial in accordance with law. Hence, it is just and proper to remand the case to the trial Court with a direction to provide an opportunity to the accused/appellant to cross-examine all the witnesses. Hence, the appellant/accused has made out a ground to remand the matters to the trial Court for providing opportunity to cross-examine prosecution witnesses. Accordingly, I answer Point No.1 in the affirmative. Regarding Point No.2:
19. For the foregoing reasons and discussions, I proceed to pass the following:
O R D E R i) Appeals are allowed in part;
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ii) Judgment of conviction and order on sentence dated 08.12.2023 passed in Spl.C.C. No.1779/2021 and Spl.C.C No.1591/2022 by the Addl.
City Civil and Sessions Judge FTSC-III, Bengaluru, are set aside; iii) Matters are remitted to the trial Court with a direction to provide opportunity to the accused to cross-examine all the prosecution witnesses including the further cross-examination of PW1 and PW2; iv) The trial Court shall proceed with the case in accordance with law; v) In view of remanding the matters to the trial Court, pending IAs if any, stand
disposed of;
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vi) The Registry is directed to send a copy of this order to the trial Court for taking further action; vii) Registry is directed to send intimation to the Jail Authorities to produce the accused before the trial Court on 18.11.2025, without fail.
Sd/- (G BASAVARAJA) JUDGE
KBM List No.: 1 Sl No.: 34