IN THE HIGH COURT OF KARNATAKA, AT BENGALURU (MEMORANDUM OF CRIMINAL APPEAL UNDER SECTION 374 OF ‘THE CODE OF CRIMINAL PROCEDURE) CRIMINAL APPEAL. NO. /2018 BEFORE THE CHILD FRIENDLY COURT, BENGALURU URBAN DISTRICT SPECIAL C.C. NO.373/2015 IN THE HIGH COURT OF KARNATAKA, AT BENGALURU CRIMINAL APPEAL NO. /2018 Rank of the Parties Trial Court High Court Between: Sri. Nagesh Prabhu Bamanpad S/o Sri. Prabhu, Aged about 29 years, Residing at No.17/4, 8% Block, Koaramangala, Bengaluru. Permanent resident of Cintrumkeri Tandya, Near Bus Stop, Shivajinagar Village, Mudaragi Taluk, Gadag District. .-Accused Appellant And: The State of Karnataka By Koramangala Police Station, Bengaluru City. ..Complainant Respondent MEMORANDUM OF CRIMINAL APPEAL UNDER SECTION 374 OF THE CODE OF THE CRIMINAL PROCEDURE : The Appellant above named humbly submits as follows :“A The address 0} ss and summons etc. of through his Advocate f the appellant for the purpose of service of court is as shown in the cause notice, proce: ce mane title and that ee nd Block ‘Associates, Advocates, No.147/7, Sri Rama Road, 2™ BI 98440 Thyagarajanagar, Bengaluru-560 028 (Mob. No.9 67808). The address of the respondent for the purpose of service of court notice, process and summons etc., is as shown in the tle and also represented through Government Advocate, cause ti High Court Building, Bengaluru ‘The appeal has been preferred by the appellant questioning the legality, regularity and correctness of the Judgement dated : 19-03-2018 passed in Special C.C. No.373/2015 by the Child Friendly Court, Bengaluru Urban District, convicting the appellant for the offence punishable under Section 323 of I.P.C. and under section 8 of POCSO Act, 2012 or alternatively under Section 354 (A)(2) of LP.C. and sentenced him to undergo Imprisonment for a term of 3 years with fine amount of Rs.25,000/-, under Section 8 of POCSO Act, 2012 which is higher in degree than that of Section 354(A)(2) of I.P.C. In default of payment of fine amount, the appellant shall undergo simple imprisonment for a period of three months. FACTS OF THE CASE The appellant submits that the complainant before the respondent police who examined as PW-3 is none other than younger sister of wife of the appellant and she has appeared before the respondent police stating that on 13-03-2015 at about 12-30 Noon the appellant suddenly came on the Road 8th> Block, Koramangala and took up quarrel with her and caused hurt to the body 4 modesty and committed sexual assault and also her by hand and touched her breasts and other parts of with a sexual intent and thereby the appellant outrage’ noticed simple i was brought after one day of the incident with the above uuries over the body. The written complaint history of commission of offence and the same was registered by the respondent police in Crime No.187/2018 for the offence punishable under Section 323 and 354(A) of LP.C. and under Section 8 of POCSO Act, 2012. After investigation the charge- sheet has been filed by the respondent police. ‘The appellant further submits that on appearance before the trial court the charge-sheet papers are Served and on denial of the charge leveled against him. ‘The prosecution examined pW-1 to PW-9 out of 13 charge-sheet witnesses and during the course of examination Ex. P-1 to P-10 documents were marked. ‘The appellant submits that originally he was arrested immediately on registration of complaint subsequently bail was granted by virtue of order passed by Hon'ble High Court of Karnataka, Bengaluru. During the course of trial the prosecution examined 1 to 9 witnesses and placed the documents Ex. P-1 to P10. After closing both side the matter was heard and passed the Judgement and sentence. ‘The Appellant being highly aggrieved by the Judgement Judgement dated : 19-03-2018 passed in Special C.C. No.373/2015 by the Child Friendly Court, Bengaluru Urban District, has no alternative except to approach this Hon'ble Court to prefer this Criminal Appeal before this Hon'ble court on the following among other grounds. Page 3 of 1110 12. GROUNDS GROUNDS ssion Judge is not noticed the complaint was i ing the filed after thought with a delay of one day with creating { this appellant who is non The Learned S« i ¢ other than brother-in- story agains law of victim girl The Learned Session Judge is not considered the contradictory statement of the complaint and recorded the statement before relating to the allegation made against the Magistrate appellant The Learned Session Judge has not considered even though the eye witness was hostile and true story has been elicited during the course of his evidence as the quarrel was took place between the sisters and taken advantage of said quarrel the innocent appellant has been brought and he has been made scapegoat to the said allegations. The Learned Session Judge not considered though examined the doctor who has examined the victim girl after lodging the complaint and got it appeared before the medical examination but still without any symptoms are notices or not noticed any of the injuries on the body of the victim girl, but still she has been her evidence has been considered and convicted the appellant for the alleged offences. tie Learned Session Judge not considered that the brother of victim girl knowing-fully-well that the entire family was brought from Goa to Bengaluru, and uplift them by providing avocati for their family members, but allegations has been — taking victim girl agai gainst the appellant and m: i of criminal liability. a19. 20. 21. 22. ‘ee where the security guards are available and the appellant has tried to kiss her and misuse of his relationship and tried to commit the modesty of victim girl. The Learned Session Judge not noticed about the earlier incident for having filed the complaint and subsequently compromised the matter among them. By taking advantage of quarrel between the sisters the innocent appellant has been brought into the notice as if he has committed an offence. The Learned Session Judge not considered about the suggestions and admission made during the course of cross examination of PW-3 victim girl and PW-2 who is none other than brother-in-law and wife brother who has taken advantage of enmity and filed a complaint through the victim girl. The Learned Session Judge not considered even though the eye witnesses who are turned hostile and real incident has been stated but still no value had been given for the purpose of case on hand. The security guards CW-6 and CW-7 were examined one witnesses by PW-5 and another witness has been dropped because they are the eye witnesses and without examining them by the prosecution which clearly shows that there is no any such incident was took place. Hence the conviction and sentence imposed against the appellant is liable to be set aside. ‘The Learned Session Judge noticed ‘all the evidences available on the records but there is no any proper discussion has been ade and there is no any reasonable ground to believe that the appellant has committed an offence who is charge-sheeted by the respondent police. i Bowe tad é23. 24. 25. 26. 27. 28. ote { The Learned Sessions Judge has failed to observe the facts, probabilities, while delivering the Judgement without following the authorities placed by the appellant before the trial court. The Learned Sessions Judge is failed to exercise the powers and over looked the documents and evidence relayed by the prosecution. ‘The appellant is only a bread earner of the family and he is a vegetable vendor who has been penalized to pay a sum of Rs.25,000/- as a penalty by way of compensation which is nothing but exorbitant amount. The Learned Sessions Judge gravelly erred that even though none of the ingredients of the offences alleged to have been brought against the appellant are not attracted for which he has been charge-sheeted and framed the charge against him. There is no offence under the provision of POCSO Act in spite of that the penal offences have been brought under the provision of POCSO Act. The appellant deserves to raise any additional grounds at the time of arguments. PRAYER WHEREFORE, the appellant prays that this Hon’ble Court may be pleased to, (a) Call for the records in Special C.C. No.373/2015 by the Child Friendly Court, Bengaluru Urban District,; (b) Set-aside the Judgement dated : 19-03-2018 passed in Special C.C. No.373/2015 by the Child Friendly Court,io e istrict, ie under Section the appellant for 393 of LP.C. and Bengaluru Urban Di convicting the offence punishabl g of POCSO Act under section ‘under Section 354 (A)(2) of LP.C term 0 ‘undergo Imprisonment for & a LhLmDr 8 of POCSO Act, wn degree than that of Section it of payment of fine amount, 9012 or alternatively and sentenced him to ¢3 years with fine moun! 2012 which is higher # 354(A)(2) of LP.C. In defau! the appellant shall undergo simple imprisonment for a period of three months ; uch other suitable as deems fit under the (co) And to pass si fasts and circumstances of the case, in the interest of justice and equity. Advocate for Appellant Bengaluru -04-2018 co AC