Point of law : Section 299 of Code of Criminal Procedure makes 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.

JUDGMENT :

1. 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 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 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 committed the offences punishable under Sections 323, 344, 366A, 376, 506 read with Section 34 of the Indian Penal Code (“IPC” for short) and Sections 3(1)(xi), 3(2)(v) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (“SC/ST Act” for short).

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 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 c