The Karnataka High Court recently set aside a trial court order awarding the death penalty to a 62-year-old man who was accused of raping a minor girl three years ago [Venkateshappa v. State of Karnataka]..While remitting the matter for partial re-trial, a Division Bench of Justice G Narender and Justice MI Arun observed, "We decline to form any opinion with regard to the guilt or the commission of offence in view of the fact that this Court has decided to remit the matter back. As rightly contended by learned SPP, it would be a travesty of justice if the prosecution is directed or the Trial Court is directed to do a de novo trial, in view of the fact that much grounds have been traversed and the cross-examination of the witnesses has not resulted in any serious contradictions, which would shock the judicious conscious of this Court and thereby direct a de novo trial. In that view of the matter, we are of the opinion that partial re-trial be ordered as rightly contended by learned counsel on both sides.".The 62-year-old was accused of raping his neighbour's daughter. Subsequently, an FIR was registered at the nearest police station under Section 376 of Indian Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). When the matter came up before the trial court in 2020, it examined all the witnesses and also ordered a DNA test despite the accused's lack of consent. It then sentenced the accused to death for the offence punishable under Section 376 IPC and a fine of ₹25,000. The accused filed the present appeal challenging this order. .It was the case of the accused that the judgment of the trial court stands vitiated on account of rejection of the application for examining the author of the DNA report, whose bona fides were called into question during the trial. The Court was further informed that an application under Section 45 of the Evidence Act, 1872 was moved by the accused before the trial court to give fresh blood samples and semen etc for DNA examination, as he doubted the sanctity of the previous samples. However, that was also rejected, with the trial court stating that there is no requirement to summon the expert who has given the DNA report..The Special Public Prosecutor also admitted that the reasoning of the trial court would not stand legal scrutiny and that it ought to have given a full opportunity to the accused in order to ensure a fair trial. However, it was submitted that the accused cannot take advantage of the glitch to seek a de novo trial..The High Court noted that the trial court order shocks its judicial mind and reflects a lack of judicial temperament on the part of the author."With regard to the reasoning adopted by the trial Court to impose death penalty, we would limit our comments to stating that it shocks our judicial mind and also reflects a lack of judicial temperament in the author of the judgment.".With regard to the DNA test, the Court noted the serious infraction of the accused's right to privacy and that no DNA analysis can be conducted by the State without obtaining the consent of the party concerned..Adding on, the Court said, "It causes consternation to us that the Trial Court has thrown to the winds all caution in this regard and further proceeded to reject the application by the accused himself, offering to subject himself for DNA analysis. That apart, even on merits of the case, it does not support the conclusions drawn by the Trial Court holding the accused guilty of the offence punishable under Sections 4 and 6 of the POCSO Act.".Another inconsistency that the Court noted was that the vaginal smear (of the victim) sent for examination had returned a negative result. Further, the DNA analysis speaks only about semen stains on the top of the dress i.e., chudidhar top, noted the Bench.In this regard, the Court said,"Prima facie, appraisal of the material evidence does not convince us of penetrative sexual assault much less any aggravated sexual assault. That apart, it is claimed that the child is 12 years and the provisions of Section 9 (m) of the POCSO Act, refers to sexual assault on a child below 12 years. This crucial aspect has also not been properly appreciated by the Trial Court. In fact, the appreciation of evidence by the Trial Court leaves much to be desired. The evidence at the most suggests the commission of the offence as defined and stipulated under Sections 7 or 9 of POCSO Act, punishable under Sections 8 and 10 of the POCSO Act respectively.".With these observations, the Court also allowed the application filed under Section 293 of the Code of Criminal Procedure (CrPC) filed for examining the author of the DNA report..While disposing of the plea, the Court set aside the judgment of conviction and sentence passed by the II Additional District and Sessions Judge, Kolar in 2020. It also directed the trial court to conclude the trial and render a judgment within a period of six months. In case the same is not done, the accused will be entitled to seek bail, the Court ordered..[Read Judgment here]
The Karnataka High Court recently set aside a trial court order awarding the death penalty to a 62-year-old man who was accused of raping a minor girl three years ago [Venkateshappa v. State of Karnataka]..While remitting the matter for partial re-trial, a Division Bench of Justice G Narender and Justice MI Arun observed, "We decline to form any opinion with regard to the guilt or the commission of offence in view of the fact that this Court has decided to remit the matter back. As rightly contended by learned SPP, it would be a travesty of justice if the prosecution is directed or the Trial Court is directed to do a de novo trial, in view of the fact that much grounds have been traversed and the cross-examination of the witnesses has not resulted in any serious contradictions, which would shock the judicious conscious of this Court and thereby direct a de novo trial. In that view of the matter, we are of the opinion that partial re-trial be ordered as rightly contended by learned counsel on both sides.".The 62-year-old was accused of raping his neighbour's daughter. Subsequently, an FIR was registered at the nearest police station under Section 376 of Indian Penal Code, 1860 and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). When the matter came up before the trial court in 2020, it examined all the witnesses and also ordered a DNA test despite the accused's lack of consent. It then sentenced the accused to death for the offence punishable under Section 376 IPC and a fine of ₹25,000. The accused filed the present appeal challenging this order. .It was the case of the accused that the judgment of the trial court stands vitiated on account of rejection of the application for examining the author of the DNA report, whose bona fides were called into question during the trial. The Court was further informed that an application under Section 45 of the Evidence Act, 1872 was moved by the accused before the trial court to give fresh blood samples and semen etc for DNA examination, as he doubted the sanctity of the previous samples. However, that was also rejected, with the trial court stating that there is no requirement to summon the expert who has given the DNA report..The Special Public Prosecutor also admitted that the reasoning of the trial court would not stand legal scrutiny and that it ought to have given a full opportunity to the accused in order to ensure a fair trial. However, it was submitted that the accused cannot take advantage of the glitch to seek a de novo trial..The High Court noted that the trial court order shocks its judicial mind and reflects a lack of judicial temperament on the part of the author."With regard to the reasoning adopted by the trial Court to impose death penalty, we would limit our comments to stating that it shocks our judicial mind and also reflects a lack of judicial temperament in the author of the judgment.".With regard to the DNA test, the Court noted the serious infraction of the accused's right to privacy and that no DNA analysis can be conducted by the State without obtaining the consent of the party concerned..Adding on, the Court said, "It causes consternation to us that the Trial Court has thrown to the winds all caution in this regard and further proceeded to reject the application by the accused himself, offering to subject himself for DNA analysis. That apart, even on merits of the case, it does not support the conclusions drawn by the Trial Court holding the accused guilty of the offence punishable under Sections 4 and 6 of the POCSO Act.".Another inconsistency that the Court noted was that the vaginal smear (of the victim) sent for examination had returned a negative result. Further, the DNA analysis speaks only about semen stains on the top of the dress i.e., chudidhar top, noted the Bench.In this regard, the Court said,"Prima facie, appraisal of the material evidence does not convince us of penetrative sexual assault much less any aggravated sexual assault. That apart, it is claimed that the child is 12 years and the provisions of Section 9 (m) of the POCSO Act, refers to sexual assault on a child below 12 years. This crucial aspect has also not been properly appreciated by the Trial Court. In fact, the appreciation of evidence by the Trial Court leaves much to be desired. The evidence at the most suggests the commission of the offence as defined and stipulated under Sections 7 or 9 of POCSO Act, punishable under Sections 8 and 10 of the POCSO Act respectively.".With these observations, the Court also allowed the application filed under Section 293 of the Code of Criminal Procedure (CrPC) filed for examining the author of the DNA report..While disposing of the plea, the Court set aside the judgment of conviction and sentence passed by the II Additional District and Sessions Judge, Kolar in 2020. It also directed the trial court to conclude the trial and render a judgment within a period of six months. In case the same is not done, the accused will be entitled to seek bail, the Court ordered..[Read Judgment here]