Somashekara @ Soma vs State Of Karnataka
2022 Latest Caselaw 1292 Kant

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                                         CRL.A.No.328/2018




  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 31ST DAY OF JANUARY 2022

                        BEFORE

        THE HON'BLE MRS. JUSTICE K.S.MUDAGAL                 R
           CRIMINAL APPEAL NO. 328/2018
BETWEEN:

SOMASHEKARA @ SOMA
S/O LATE NARAYANAPPA
AGED ABOUT 22 YEARS
R/AT NO.43, II CROSS
BET COLLEGE ROAD
MUKUTAMMA NAGAR
DODDABANASWADI
BENGALURU-560 060                            ...APPELLANT

(BY SRI SUYOG HERELE.E, AMICUS CURIAE)

AND:

STATE OF KARNATAKA
BY BANASWADI POLICE STATION
BANGALORE, REP. BY SPP
HIGH COURT CAMPUS
BENGALURU - 560 001                       ...RESPONDENT

(BY SRI. SHANKAR H.S, HCGP)


     THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
OF Cr.P.C. PRAYING TO SET ASIDE THE JUDGMENT,
CONVICTION, ORDER AND SENTENCE DATED 27.01.2018
PASSED BY LIII ADDL.CITY CIVIL AND SESSIONS JUDGE,
BENGALURU IN SPL. C.C. NO.136/2015 ON THE FILE OF
BANASWADI POLICE CONVICTING FOR THE OFFENCES
PUNISHABHE UNDER SECTIONS 376, 506, 323 OF IPC AND 5(l)
AND 6 OF POCSO ACT.
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                                           CRL.A.No.328/2018




     THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING
THIS DAY, THE COURT THROUGH VIDEO CONFERENCE
DELIVERED THE FOLLOWING:

                        JUDGMENT

Aggrieved by the order of conviction and sentence

passed against him for the offences punishable under

Sections 376, 506, 323 of IPC and Section 5(l) read with

Section 6 of the Protection of Children from Sexual

Offences Act, 2012 (for short, 'POCSO Act'), the accused in

Spl. C.C. No.136/2015 on the file of LIII Additional City

Civil and Sessions Judge, Bengaluru, has preferred the

above appeal. The appellant was prosecuted in the said

case for the aforesaid offences on the basis of complaint of

PW-1, Smt.Kolaramma, mother of the victim girl PW-2.

2. The case of the prosecution in brief is as

follows:

The appellant and PW.2 the victim are neighbours.

The victim girl was aged 14 years. The appellant luring

the victim girl of love, took her to a secluded place near

Babupalya, Horamavu, and committed penetrative sexual

CRL.A.No.328/2018

assault on her. He intimidated her not to reveal the

incident to others. Thereafter, threatening the victim that

he will disclose the first incident to others and defame her

and her mother, he took her to another secluded place

several times and raped her. Ultimately, during the last of

such act on 23.10.2014, he assaulted the victim. On

26.10.2014, when he again came to call the victim girl,

she was scared and revealed the incident to her mother

PW-1 and her aunt PW-3.

3. CW-4 is the brother of PWs-1 and 3. PW-1

filed complaint before PW.8. On the basis of the said

complaint, PW-8 registered FIR as per Ex.P7 and got the

victim medically examined through PW-4 Dr.Nagaraj,

conducted spot mahazar, recorded the statement of

witnesses and got the statement of the victim recorded

through magistrate under Section 164, Cr.P.C. After

completing investigation, he filed charge sheet.

4. The appellant was arrested and he was in

judicial custody. On framing charges against the

CRL.A.No.328/2018

appellant, the Trial Court conducted the trial. During trial,

the learned counsel for the appellant failed to conduct

cross-examination of PWs-1 to 4 who are the material

witnesses. PW-5 who was examined to prove that she

found the appellant and PW-2 frequently together and had

advised them, did not support the prosecution case.

5. The appellant's counsel cross-examined PW-6

who apprehended the appellant and produced him before

the Investigating Officer PW-8. He also cross-examined

PW-7 head master who deposed about date of birth of

PW.2.

6. The Trial Court recorded the statement of the

accused under Section 313 of Cr.P.C. On such examination

the appellant submitted defence statement to the effect

that the victim was in love with one Bihari boy and he had

abused her. He further stated that PW-2 was in a

depressed state and at that stage, he consoled her. He

claimed that regarding bursting of crackers, a quarrel

ensued between PW-3 and himself and to take revenge,

CRL.A.No.328/2018

she instigated PW-1 and PW-2 to file the complaint and

falsely implicated him in the case.

7. The Trial Court on hearing the parties, passed

the impugned judgment and order convicting the appellant

for the offences punishable under Sections 376, 506, 323

of IPC and Section 5(l) read with Section 6 of the POCSO

Act and imposed the following sentence:

Convicted for Fine the offence Sentence of amount Default Sl. punishable imprisonment in sentence No. under Rupees Section 1 376 of IPC S.I. of 7 years 25,000/- Simple imprisonment of 1 year 2 506 of IPC S.I. of 2 years ---- -----

 3    323 of IPC      S.I. of 1 year     -----           -----

 4    5(l) r/w 6 of   R.I. for    10    50,000/-   Simple
      POCSO Act       years                        imprisonment for
                                                   2 years
 5    Rule 7(2) &
      7(4)      of            Compensation of Rs.1,00,000/-
      POCSO Act

8. The Trial Court held that the evidence of

material witnesses, PWs-1 to 4 was not controverted and

thereby, charges against the appellant stood proved. The

CRL.A.No.328/2018

Trial Court further held that despite it granting

opportunity, the accused and his counsel did not do the

needful, and in view of Section 33(5) of the POCSO Act, it

was bound to reject the prayer of the accused for granting

further adjournment for cross-examination of the aforesaid

witnesses. Thus, the Trial Court justified its action of

rejection of prayer for granting time to cross-examine the

material witnesses.

9. The appellant preferred the above appeal

through his advocate. Unfortunately, the said advocate

did not turn up to represent the appellant. He is in judicial

custody all along. Therefore, to achieve the object of

Articles 21, 22 and 39A of the Constitution of India, this

Court appointed Sri Suyog Herele as Amicus Curiae to

assist the Court on behalf of the appellant.

10. Heard both sides.

11. The main ground of challenge to the impugned

order of conviction and sentence is that though he was in

CRL.A.No.328/2018

custody, on his Counsel abandoning him, he was not given

legal aid. Thereby the fundamental right of the appellant

guaranteed under Articles 21, 22 and 39A of the

Constitution of India was violated. He submits that the

trial was unfair.

12. Learned HCGP submits that in view of Section

33(5) of the POCSO Act and having regard to the object of

the said Act, the Trial Court had no option but to reject the

prayer of the accused and proceed with the matter.

13. Having regard to the rival submissions, the

point that arises for consideration is:

"Whether the impugned order of conviction and

sentence is sustainable in law?"

14. Article 21 of the Constitution of India which

deals with fundamental rights reads as follows:

"21. Protection of life and personal liberty:

No person shall be deprived of his life or personal liberty except according to procedure established by law."

CRL.A.No.328/2018

The above provision makes it clear that the State can

deprive the right and personal liberty of a person only in

accordance with the procedure established by law.

15. The procedural law with regard to the trial of a

person is enumerated in Sections 303 and 304 of Cr.P.C.

The said provisions read as follows:

"303. Right of person against whom proceedings are instituted to be defended:

Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.

304. Legal aid to accused at State expense in certain cases:

(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State (2) The High Court may, with the previous approval of the State Government, make rules providing for,-

(a) the mode of selecting pleaders for defence under sub-section (1) ;

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fees payable to such pleaders by the Government and generally, for carrying out the purposes of sub-section (1).

(3) The State Government may, by notification, direct that, as from such date as may

CRL.A.No.328/2018

be specified in the notification the provisions of sub-sections (1) and (2) shall apply it relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session."

16. The above provisions show that they give right

to an accused before the criminal court to be defended by

a pleader of his choice. Above provisions further show that

if the Court finds that an accused is not represented by a

pleader and has no sufficient means to engage a pleader,

the Court shall assign a pleader for his defence at the

expense of the State.

17. Article 39A of the Constitution of India casts

duty on the state not to deny access to justice on the

ground of economic or other disabilities. Article 39A of the

Constitution reads as follows:

"39A. Equal justice and free legal aid: The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities."

CRL.A.No.328/2018

18. To achieve the object of Article 39A of the

Constitution, the Legal Services Authority Act has been

enacted. Under the said Act, Legal Services Authorities

are constituted right from national level to taluk level. The

district courts have District Legal Services Authority and a

panel of advocates for rendering legal aid to the

unaffordable as contemplated under Section 304 of Cr.P.C.

19. As per the prosecution papers, at the time of

filing charge sheet, the appellant was hardly aged 21 years

and he was working as a mason. He was in judicial

custody. Under such circumstances, when his advocate

failed to represent him, in view of Section 304, Cr.P.C and

the aforesaid other provisions, it was mandatory for the

Trial Court to refer the matter to the District Legal Services

Authority for providing free legal aid to the appellant. That

is evident from Section 304, Cr.P.C. as the word 'shall' is

used in the said provision.

20. The Trial Court says that it was mandated by

Section 33(5) of POCSO Act to reject the prayer for

CRL.A.No.328/2018

granting time to the accused for cross-examination. On

such ground, it had rejected the application filed by the

accused under Section 311 of Cr.P.C. to recall PWs-1 to 3.

Article 13(2) of the Constitution bars the State from

making any law which takes away or abridges the

fundamental rights. Therefore such interpretation of

Section 33(5) of the POCSO Act by the trial Court runs

contrary to Article 13 of the Constitution. The Courts have

to strike harmony between two laws. Therefore when the

counsel representing the appellant failed to appear, the

appropriate action on the part of the Trial Court was to

appoint a legal aid advocate to defend the appellant.

21. In similar circumstances, this Court in its

judgment in Govindaraju .v. State of Karnataka1 referring

to the above provisions and several judgments of the

Hon'ble Supreme Court held that conviction without

providing an opportunity to the accused to cross-examine

prosecution witnesses is nothing but denial of a fair trial

2021(3) Kar.L.J. 98

CRL.A.No.328/2018

therefore liable to be set aside. This matter is fully covered

by the aforesaid judgment in the case of Govindaraju's

case referred to supra.

22. For the aforesaid reasons, the impugned order

is unsustainable. The appeal is allowed.

The impugned order of conviction and sentence

passed against the appellant is hereby set aside.

The matter is remanded to the Trial Court for fresh

consideration.

The Trial Court shall assign an Advocate for the

defence of the appellant as required under Section 304,

Cr.P.C.

The Trial Court shall recall PWs-1 to 4. After the

cross-examination of PWs-1 to 4, if found necessary, the

Trial Court shall examine the appellant under Section 313,

Cr.P.C. and give him an opportunity to file defence

statement or lead defence evidence.

In doing so, the Trial Court shall ensure that Section

33(5) of the POCSO Act is complied so far as PW-2 (victim

CRL.A.No.328/2018

girl). The Trial Court shall conduct trial as expeditiously

as possible in the light of the aforesaid observations and

dispose of the matter afresh.

23. This Court places on record the able assistance

of Sri Suyog Herele, learned Amicus Curiae in the matter.

Registry shall pay him remuneration of Rs.15,000/-.

Registry shall transmit a copy of the order and

records to the Trial Court forthwith.

Sd/-

JUDGE

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