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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M. NAGAPRASANNA, J.
Mahammad Ali Akbar @ Ali Umar S/o. Hassan Mahammad - Petitioner
Versus
State of Karnataka by Yeshwanthapura Police, Bengaluru, Represented by the Learned State Public Prosecutor High Court of Karnataka, Bengaluru - Respondent
Criminal Petition No. 4449 of 2022
Decided On : 06-06-2022
Indian Penal Code, 1860 – Sections 376, 506 – Criminal Procedure Code, 1973 – Section 311 – Protection of Children from Sexual Offences Act, 2012 – Sections 4, 6 – Punishment for sexual assault – Punishment for criminal intimidation – Power to summon material witness – Punishment for penetrative sexual assault – Punishment for aggravated penetrative sexual assault – Complainant is mother of victim and petitioner is son of her husband's elder sister and are thus, members within the same family – In month, it is alleged that, when parents were not at home, petitioner had indulged in certain acts on daughter of complainant which became an offence punishable under provisions of Act – Held, Word 'child' is defined under Section 2(1)(d) of Act, to mean a person – On child attaining, rigor under Section 33(5) of Act gets diluted and sequentially, will not become a bar for seeking further cross-examination of victim under Section 311 of Cr.P.C – It is more so in cases where accused is alleged to have committed offences punishable under Act as there is presumption under Section 29 of Act against accused – To bring in evidence contrary to presumption is a heavy burden cast upon accused for offences punishable under Act – Therefore, to rebut such presumption, as also, peculiar reasons in case at hand, victim ought to have been permitted to be cross-examined by accepting application seeking to recall the witness – This would be imperative to see that trial does not result in miscarriage of justice in any manner and such miscarriage is prevented at any point of spell and juncture –Petition allowed.
ORDER :
The petitioner/accused in Special C.C.No.407 of 2019 before Additional City Civil and Sessions Judge, FTSC-II, Bengaluru arising out of Crime No.1 of 2019 registered for offences punishable under Sections 376 and 506 of the IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 ('the Act' for short) is before this Court calling in question order dated 07-04-2022 rejecting the application filed by him under Section 311 of the Cr.P.C. for recalling of PW-1 for further cross-examination.
2. Heard Sri. Syed Muzakkir Ahmed, learned counsel appearing for the petitioner and Smt. K.P. Yashodha, learned High Court Government Pleader for the respondent.
3. Facts in brief that are germane for consideration of the present lis are as follows:
The complainant is the mother of the victim and the petitioner is the son of her husband's elder sister and are thus, members within the same family. In the month of April, 2018, it is alleged that, when the parents were not at home, the petitioner had indulged in certain acts on the daughter of the complainant which became an offence punishable under the provisions of the Act. The petitioner also alleged to have threatened the victim that if she raises hue and cry of the incident he would upload such photographs on the social media and that became offence punishable under Section 506 of the IPC and the alleged sexual acts became offence under Section 376 of the IPC. A crime came to be registered invoking the aforesaid provisions of law. The Police, after investigation, have filed a charge sheet and the matter is pending consideration in Special C.C.No.407 of 2019 before the learned Sessions Judge.
4. In the said case, the petitioner files an application under Section 311 of the Cr.P.C. seeking recall of the victim for further cross-examination. This having been rejected by the learned Sessions Judge, the petitioner has knocked the doors of this Court in the subject petition.
5. The learned counsel appearing for the petitioner submits that further cross-examination is sought for in the light of peculiar facts of the case, as the victim is a member of the family and was in love with the petitioner. Both these facts if elicited from the mouth of the victim, the case against the petitioner would likely to end in acquittal as it would become a consensus act or the matter would be settled since the victim is petitioner's mother's brother's daughter. The learned counsel would submit that it is also the case of the father of the victim in his cross-examination that the petitioner has not committed any sexual act on the victim. It is on these grounds, he has sought recalling of the witness.
6. On the other hand, the learned High Court Government Pleader representing the State would vehemently refute the submissions and contends that repeated cross-examination or calling of the victim for cross-examination is specifically barred under the statute itself and, therefore, no fault can be found with the order of the learned Sessions Judge in rejecting the said application under Section 311 of the Cr.P.C.
7. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
8. The issue that falls for my consideration in this case is,
9. The afore-narrated facts are not in dispute. The contention of the learned counsel appearing for the petitioner is a matter of record. The record reveals that after framing of charges against the petitioner the evidence commenced with examination of the victim/CW-2 as PW-1 on 25-04-2019. Later the cross-examination was done on 29-11-2019 and the matter was thereupon listed on certain dates and the Court was closed due to onset of pandemic - COVID 19. After the resumption of Court, the parents of the victim - PW-2 and PW-3 were
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