High Court set aside acquittal in rape and POCSO case, allowing criminal appeal. Court held DNA evidence and official witnesses should be examined as per Kathi Kalu Oghad principles.
Acquittal set aside; Application under Section 311 Cr.P.C. allowed; Witnesses recalled and summons directed; Trial remanded.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 4TH DAY OF DECEMBER, 2021
PRESENT
THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ
AND
THE HON’BLE MS. JUSTICE J.M.KHAZI
CRIMINAL APPEAL No.100140/2019
BETWEEN:
STATE OF KARNATAKA REPRESENTED BY THE POLICE SUB-INISPECTOR, SIRSI RURAL POLICE STATION, UTTARA KANNADA DISTRICT, KARWAR, THROUGH THE ADDL. STATE PUBLIC PROSECUTOR, ADVOCATE GENERAL OFFICE, HIGH COURT OF KARNATAKA, DHARWAD BENCH.
…APPELLANT
(BY SRI.V.M.BANAKAR, ADDL. SPP)
AND
JANARDHAN DEVU MARATHI AGE: 32 YEARS, R/O: BAILGADDE, POST: DANALLI, SIRSI TALUK PINCODE 581401
…RESPONDENT
(BY SRI.VISHWANATH HEGDE, ADVOCATE)
THIS CRIMINAL APPEAL IS FILED U/S 378(1) & (3) OF CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE JUDGMENT AND ORDER OF ACQUITTAL DATED 15.03.2018
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PASSED BY THE SPECIAL JUDGE, UTTARA KANNADA, KARWAR, IN SPL. CASE NO.22/2017; B) TO SET ASIDE THE JUDGMENT AND ORDER OF ACQUITTAL DATED 15.03.2018 PASSED BY THE SPECIAL JUDGE, UTTARA KANNADA, KARWAR, IN SPL. CASE NO.22/2017; AND C) CONVICT THE RESPONDENT/ACCUSED FOR THE OFFENCES P/U/S 376 OF IPC & U/S 4 & 6 OF POCSO ACT, 2012.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY, SURAJ GOVINDARAJ J., DELIVERED THE FOLLOWING:
JUDGMENT
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4.1. State was not given an opportunity to prosecute the matter in a proper and required manner, inasmuch as after the evidence of the complainant witnesses were led, the prayer of the prosecutor to issue summons to other witnesses named in the charge sheet was refused
on the ground that no useful purpose will be served by examining the remaining witnesses even though the DNA report is positive, since the victim has herself turned hostile to her pregnancy.
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came to be again dismissed by referring to the decision of this Court reported in 2016 (2) KCCR 1401 in the case of Devappa Halageri vs. State of Karnataka, Koppal Rural Police and the decision of the Hon’ble Kerala High Court reported in 2013 CLJ 4286 in the case of Babu
vs. State of Kerala .
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other material witnesses have turned hostile to the prosecution story, no useful purpose will be served by examining the DNA expert and other official witnesses.
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15. In the famous decision of State of Bombay V/s Kathi
Kalu Oghad reported in AIR 1961 SC Page 1808,
(paragraph 10, 11, 12, 13 and 16) a 11 judge bench of
the Supreme Court of India held as under:
10. “To be a witness” may be equivalent to “furnishing evidence” in the sense of making oral or written statements, but not in the larger sense of the expression so as to include giving of thumb impression or impression of palm or foot or fingers or specimen writing or exposing a part of the body by an accused person for purpose of identification. “Furnishing evidence” in the latter sense could not have been within the contemplation of the Constitution makers for the simple reason that — though they may have intended to protect an accused person from the hazards of self-incrimination, in the light of the English Law on the subject — they could not have intended to put obstacles in the way of efficient and effective investigation into crime and of bringing criminals to justice. The taking of impressions of parts of the body of an accused person very often becomes necessary to help the investigation of a crime. It is as much necessary to protect an accused person against being compelled to incriminate himself, as to arm the agents of Law and the law courts with legitimate powers to bring offenders to justice. Furthermore it must be assumed that the Constitution-makers were aware of the existing Law, for example, Section 73 of the Evidence Act or Sections 5 and 6 of the Identification of Prisoners Act (33 of 1920). Section 5 authorises a Magistrate to direct any person to allow his measurements or photographs to be taken, if he is satisfied that it is expedient for the purposes of any investigation or proceeding under the Code of Criminal Procedure to do so: “Measurements” include finger impressions and foot-print impressions. If any such person who is directed by a Magistrate, under Section 5 of the Act, to allow his measurements or photographs to be taken resists or refuses to allow the
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taking of the measurements or photographs, it has been declared lawful by Section 6 to use all necessary means to secure the taking of the required measurements or photographs. Similarly, Section 73 of the Evidence Act authorises the Court to permit the taking of finger impression or a specimen handwriting or signature of a person present in Court, if necessary for the purpose of comparison.
11. The matter may be looked at from another point of view. The giving of finger impression or of specimen signature or of handwriting, strictly speaking, is not “to be a witness”. “To be a witness” means imparting knowledge in respect of relevant facts, by means of oral statements or statements in writing, by a person who has personal knowledge of the facts to be communicated to a court or to a person holding an enquiry or investigation. A person is said “to be a witness” to a certain state of facts which has to be determined by a court or authority authorised to come to a decision, by testifying to what he has seen, or something he has heard which is capable of being heard and is not hit by the rule excluding hearsay, or giving his opinion, as an expert, in respect of matters in controversy. Evidence has been classified by text writers into three categories, namely, (1) oral testimony; (2) evidence furnished by documents; and (3) material evidence. We have already indicated that we are in agreement with the Full Court decision in Sharma case [(1954) SCR 1077] that the prohibition in clause (3) of Article 20 covers not only oral testimony given by a person accused of an offence but also his written statements which may have a bearing on the controversy with reference to the charge against him. The accused may have documentary evidence in his possession which may throw some light on the controversy. If it is a document which is not his statement conveying his personal knowledge relating to the charge against him, he may be called upon by the Court to produce that document in accordance with the provisions of Section 139 of the Evidence Act, which, in terms, provides that a person may be summoned to produce a document in his possession or power and that he does not become a witness by the mere fact that he has produced it; and
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therefore, he cannot be cross-examined. Of course, he can be cross-examined if he is called as a witness who has made statements conveying his personal knowledge by reference to the contents of the document or if he has given his statements in Court otherwise than by reference to the contents of the documents. In our opinion, therefore, the observations of this Court in Sharma case [(1954) SCR 1077] that Section 139 of the Evidence Act has no bearing on the connotation of the word “witness” is not entirely well-founded in Law. It is well established that clause (3) of Article 20 is directed against self-incrimination by an accused person. Selfincrimination must mean conveying information based upon the personal knowledge of the person giving the information and cannot include merely the mechanical process of producing documents in Court which may throw a light on any of the points in controversy, but which do not contain any statement of the accused based on his personal knowledge. For example, the accused person may be in possession of a document which is in his writing or which contains his signature or his thumb impression. The production of such a document, with a view to comparison of the writing or the signature or the impression, is not the statement of an accused person, which can be said to be of the nature of a personal testimony. When an accused person is called upon by the Court or any other authority holding an investigation to give his finger impression or signature or a specimen of his handwriting, he is not giving any testimony of the nature of a “personal testimony”. The giving of a “personal testimony” must depend upon his volition. He can make any kind of statement or may refuse to make any statement. But his finger impressions or his handwriting, in spite of efforts at concealing the true nature of it by dissimulation cannot change their intrinsic character. Thus, the giving of finger impressions or of specimen writing or of signatures by an accused person, though it may amount to furnishing evidence in the larger sense, is not included within the expression “to be a witness”.
12. In order that a testimony by an accused person may be said to have been self-incriminatory, the compulsion
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of which comes within the prohibition of the constitutional provision, it must be of such a character that by itself it should have the tendency of incriminating the accused, if not also of actually doing so. In other words, it should be a statement which makes the case against the accused person at least probable, considered by itself. A specimen handwriting or signature or finger impressions by themselves are no testimony at all, being wholly innocuous because they are unchangeable except in rare cases where the ridges of the fingers or the style of writing have been tampered with. They are only materials for comparison in order to lend assurance to the Court that its inference based an other pieces of evidence is reliable. They are neither oral nor documentary evidence but belong to the third category of material evidence which is outside the limit of “testimony”.
13. Similarly, during the investigation of a crime by the police, if an accused person were to point out the place where the corpus delicti was lying concealed and in pursuance of such an information being given by an accused person, discovery is made within the meaning of Section 27 of the Evidence Act, such information and the discovery made as a result of the information may be proved in evidence even though it may tend to incriminate the person giving the information, while in police custody. Unless it is held that the provisions of Section 27 of the Evidence Act, insofar as they make it admissible evidence which has the tendency to incriminate the giver of the information, are unconstitutional as coming within the prohibition of clause (3) of Article 20, such information would amount to furnishing evidence. This Court in Sharma case was not concerned with pronouncing upon the constitutionality of the provisions of Section 27 of the Evidence Act. It could not, therefore, be said to have laid it down that such evidence could not be adduced by the prosecution at the trial of the giver of the information for an alleged crime. The question whether Section 27 of the Evidence Act was unconstitutional because it offended Article 14 of the Constitution was considered by this Court in the case of State of Uttar Pradesh v. Deomen
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Upadhyaya. It was held by this Court that Section 27 of the Evidence Act did not offend Article 14 of the Constitution and was, therefore, intra vires. But the question whether it was unconstitutional because it contravened the provisions of clause (3) of Article 20 was not considered in that case. That question may, therefore, be treated as an open one. The question has been raised in one of the cases before us and has, therefore, to be decided. The information given by an accused person to a police officer leading to the discovery of a fact which may or may not prove incriminatory has been made admissible in evidence by that section. If it is not incriminatory of the person giving the information, the question does not arise. It can arise only when it is of an incriminatory character so far as the giver of the information is concerned. If the self-incriminatory information has been given by an accused person without any threat, that will be admissible in evidence and that will not be hit by the provisions of clause (3) of Article 20 of the Constitution for the reason that there has been no compulsion. It must, therefore, be held that the provisions of Section 27 of the Evidence Act are not within the prohibition aforesaid, unless compulsion had been used in obtaining the information.
16. In view of these considerations, we have come to the following conclusions:
(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of Law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.
(2) The mere questioning of an accused person by a
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police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not “compulsion”.
(3) “To be a witness” is not equivalent to “furnishing evidence” in its widest significance; that is to say, as including not merely making of oral or written statements but also production of documents or giving materials which may be relevant at a trial to determine the guilt or innocence of the accused.
(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression “to be a witness”.
(5) “To be a witness” means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.
(6) “To be a witness” in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.
(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.
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writing or exposing a part of the body of an accused person for the purpose of identification would not amount to testimonial compulsion.
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22.1. The judgment dated 15.03.2018 passed by the Special Judge, Uttara Kannada, Karwar in Spl.Case No.22/2017 is set aside.
22.2. The application filed by the prosecution under Section 311 of Cr.P.C. on 01.03.2018 is allowed.
22.3. CWs.16 to 21, 23, 28 to 30 are recalled. The trial
Court is directed to issue summons to the said witnesses at the earliest and conduct the proceedings.
22.4. The appeal is allowed.
Sd/JUDGE
Sd/JUDGE
sh
3 issues framed by the court
Whether the trial court erred in refusing to examine official and scientific witnesses including the DNA expert given the positive DNA report.
Whether the prohibition on compulsion of self-incrimination under Article 20(3) of the Constitution extends to the collection of DNA samples.
Whether the acquittal of the accused should be set aside and the case remanded for fresh trial after recalling prosecution witnesses.
Colour shows how this judgement treated each authority
Devappa Halageri vs. State of Karnataka, Koppal Rural PoliceDistinguished¶4
2016 (2) KCCR 1401
Babu vs. State of KeralaDistinguished¶4
2013 CLJ 4286
State of Bombay V/s Kathi Kalu OghadExplained¶15
AIR 1961 SC Page 1808 · Who else cites this
3 provisions across 2 enactments
STATE OF KARNATAKA
JANARDHAN DEVU MARATHI
SURAJ GOVINDARAJ
J.M. KHAZI
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
