IN THE HIGH COURT OF KARNATAKA, AT BENGALURU
Crl.A.No.1665/2024
BETWEEN:
Sri.Babu @ Chandrashekar —— Appellant
AND
State of Karnataka & And. —— Respondents
APPLICATION UNDER SECTION 439 OF THE CRIMINAL PROCEDURE
CODE, 1973.
The appellant submits as follows:
1. This application is filed seeking enlargement of the appellant on
bail for the offence punishable under Sec.342 of IPC, Sec.7, 8,
9(m) of the POCSO Act, 2012.
2. There are several lapses on the part of the investigation. The
prosecution miserably failed to connect the appellant with the
offence.
3. The trial court erred in noting that having regard to the circum-
stances of the case and also from the way the victim has given
evidence it is clear that she was not a competent witness and
that there is valid ground against the admissibility of her evi-
dence.
4. The trial court convicted the appellant on assumption that such
evidence exist and proceeded on such assumption but looking
into the charge sheet the predecessors of the Hon’ble Trial
Court rightly had not framed charges under Sec.342 of IPC &
Sec.7 and 8 of POCSO Act.
5. The trial court failed to examine carefully the material contradic-
tions, inconsistencies and discrepancies in statements of the
prosecution witnesses. Further failed to note that there was im-
provement in the statement of the victim.
6. The investigation done is a very casual manner. The prosecution
has not produced scene of offence panchanamma. No investiga-
tion conducted on proper lines. The absence of scene mahazaar
is fatal to the case of the prosecution.
7. There was no drawn of the mahazar at the spot wherein the ap-
pellant was residing alleged to have been confined the victim.
The minimum investigating regarding drawing spot mahazar
was also not done by the investigation officer which discloses
that in a mechanical way only on the basis of the statement he
has drawn and the charge sheet is filed against the appellant.
The trial court without any application of mind convicted the ap-
pellant.
8. The prosecution filed the charge sheet against the appellant for
the offence punishable under Sec.354, 342 of IPC & Sec.7, 8 of
POCSO Act. The appellant is convicted for the offence without
framing the charges of the same. It is failure of justice. The pros-
ecution miserably failed to provide the evidence for the purpose
of framing the charge.
9. The charges were framed under Sec.342 of IPC and Sec.4 of the
POCSO Act. The prosecution miserably failed to prove the guilt
of offence beyond reasonable against the appellant.
10.The trial court failed to note that victim statement was not
recorded within 30 days from date of cognisance and amounts
to non-compliance of Sec.35(1) of POCSO Act. The materials evi-
dence was not seized and no due procedure followed.
11.The father of the victim turned hostile. The mother of the victim
did not support the case of the prosecution and not corrobo-
rated the evidence of the victim. She gave up complete allega-
tions against the appellant. There is no support or corroboration
to the testimony of witnesses.
12.The certificate of the trial court appended at the bottom of the
questions put to the child witness does not depict/demonstrate
that the trial court has framed it’s opinion that the said child wit-
ness understands the duty of speaking truth, is able to differen-
tiate between right and wrong and understand the sanctity of
recording her evidence on oath. As the trial court made serious
departure of law in recording the statement of child witness, the
evidence of the child witness is tutored, unworthy of credence,
therefore to be rejected.
13. There is no proper investigation why the appellant committed
offence on the minor girl and there was no proper cross exami-
nation by the counsel for the accused.
14.The trial court has not recorded his opinion that the child wit-
ness understands the duty of speaking the truth and state why
he is of the opinion that the child understands the duty of
speaking the truth. Therefore, the appellant ought not to have
convicted the appellant.
15.There is improvement in the statement of the victim in regard to
occurrence of sexual assault. No medical evidence on record
corroborating facts of sexual assault or seminal stain on the
clothes of the victim.
16.The trial court failed to note that the inference as to tutoring can
be drawn from the content of the victim deposition.
17.The appellant humbly submits that he is ready and willing to fur-
nish adequate surety for his appearance before the court. He
undertakes that he will not tamper with the prosecution wit-
nesses and is ready and willing to abide by all conditions im-
posed by this Hon’ble Court.
WHEREFORE, the appellant prays that this Hon’ble Court may
be pleased to enlarge the appellant on bail for the offence punish-
able under Sec.342 of IPC, Sec.7, 8, 9(m) of the POCSO Act, 2012,
in the interest of justice.
Bengaluru (Vinay Shreyas K.V)
Date: Adv. for Appellant
