Karnataka High Court
Modinsab S/O Imamsab Tegginamani vs The State Of Karnataka on 4 April, 2024
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CRL.A No. 100565 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 4TH DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL APPEAL NO. 100565 OF 2022 (C-)
BETWEEN:
1. MODINSAB S/O IMAMSAB TEGGINAMANI
AGE: 28 YEARS, OCC: COOLIE, R/O. URBAN ONI,
NARAGUND, DIST: GADAG- 582207.
2. MUKTUMSAB S/O IMAMSAB TEGGINAMANI,
AGE: 27 YEARS, OCC: COOLIE, R/O. URBAN ONI,
NARAGUND, DIST: GADAG-582207.
- APPELLANTS
(BY SRI B.S. KUKANAGOUDAR, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH-580011.
THROUGH NARAGUND POLICE.
Digitally signed by
SAROJA
HANGARAKI 2. HINAKOUSAR D/O MUKTUMSAB YARAGATTI,
Location: HIGH AGE: 22 YEARS, OCC: COOLIE, R/O. HALBAVI KERI,
COURT OF
KARNATAKA TQ: NAVALGUND, DIST: GADAG- 582101.
DHARWAD BENCH
DHARWAD - RESPONDENTS
(BY SRI PRAVEENA Y. DEVAREDDIYAVAR, HCGP FOR R1;
SRI KUSHAL V. BOLMAL &
SRI NAVEEN R. MELINAMANI, ADVOCATES FOR R2)
THIS CRIMINAL APPEAL IS FILED U/S 374 (2) OF CR.P.C.,
SEEKING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED
13.09.2022 AND ORDER OF SENTENCE DATED 19.09.2022 PASSED
IN S.C. NO.54/2016 (POCSO) BY THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, GADAG, FOR THE OFFENCES U/S 376(d) OF IPC,
AND U/S 4, 6 OF POCSO ACT, 2012 & ETC.
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CRL.A No. 100565 of 2022
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Appellants/ accused Nos.2 and 3 feeling aggrieved by the
judgment of trial Court on the file of Addl. District and Sessions
Judge, Gadag in S.C. No. 54/2016 (POCSO) dated 13.09.2022,
preferred this appeal.
2. Parties to the appeal are referred with their ranks as
assigned in the trial Court for the sake of convenience.
3. Heard the arguments of both sides.
4. After hearing the arguments of both sides and on perusal
of the trial Court records, so also the impugned judgment
under appeal, the following points arise for consideration.
1) Whether the impugned judgment under appeal
passed by the trial Court in convicting accused
Nos.2 and 3 for the offences punishable U/s 376,
448, 109 of IPC and Sec. 6 of POCSO Act, is
perverse, capracious and legally not sustainable?
2) Whether interference of this Court is required?
5. On careful perusal of the trial Court records, it would go
to show that on the strength of the complaint filed by victim,
criminal law was set into motion by registering the case in
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Nargund P.S. Crime No. 113/2016 for the offences punishable
U/s 376, 448, 109 of IPC and Sec. 4, 6 and 17 of the Protection
of Children From Sexual Offences Act, 2012 (hereinafter
referred to as 'POCSO Act' for the sake of brevity).
6. The complaint allegations are to the effect that victim is
the 5th daughter of her deceased mother-Smt. Rameeza and
her father had second marriage after the death of his first wife.
Out of the said wedlock has got two male children. The family
of the victim is a poor family and used to go to Mangaluru for
earning livelihood. The father and stepmother of victim had
also gone to Mangaluru for earning livelihood and in their
absence victim was alone in the house at Nargund. One
Jayatumbi wife of Imamsab Tegginamani who is mother of
accused Nos.2 and 3 projecting herself as her relatives
persuaded the victim to stay in her house. During the said
period, on the abetment of accused No.1, the accused Nos.2
and 3 have committed penetrative sexual assault on the victim
and she was pregnant of eight months. When her father and
stepmother came back from Mangaluru, she informed about the
incident to them. Accused Nos.2 and 3 did not heed to the
advice of elderly persons. About two months back, the District
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Protection Officer took the victim to hostel on 04.05.2016 and
she gave birth to a female child on 05.05.2016. On these
allegations made in the complaint, the case was registered
against accused No.2 and 3. The investigating Officer after
having carried out investigation filed the charge sheet.
7. The prosecution to prove the allegations made against
the accused relied on the oral testimony of PWs.1 to 20 and the
documents at Exs.P.1 to P.26 and Exs.D.1 to D.4 came to be
marked from the defence side. The trial Court after having
heard the arguments of both sides and on appreciation of oral
and documentary evidence, convicted the accused Nos.2 and 3
for the offence punishable U/s 376-D of IPC and Sec.6 of the
POCSO Act and imposed sentence as per the order of sentence.
Whereas accused No.1 was acquitted by the trial Court. The
correctness and legality of the said judgment of conviction and
order of sentence passed by the trial Court are called in
question by accused Nos.2 and 3 in the present appeal in view
of the grounds urged in the appeal memo.
8. Learned counsel for appellants has argued that no proper
opportunity was given to cross examine the victim-PW1 and the
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prayer for seeking time to further cross examination came to
be rejected which has resulted in great injustice to accused
Nos.2 and 3. On account of denial of such opportunity, fair trial
to the accused was not provided and as such they could not
putforth their defence in an effective manner.
9. Learned counsel for appellants has also filed I.A. No.
2/2024 U/s 391 of Cr.P.C. for giving opportunity to cross
examine PW1. The finding of the trial Court in holding the
accused Nos.2 and 3 guilty for the offences alleged against
them without there being effective test of cross examination of
the victim cannot be legally sustained and same needs to be
interfered by this Court.
10. Per contra, learned HCGP and the learned counsel for
respondent No.2 have argued that no any application was filed
by the accused during the trial of the case to recall PW1 for
further cross examination. Now at this stage, they cannot
complain that no opportunity was given to cross examine PW1.
The trial Court has rightly appreciated the oral and
documentary evidence placed on record and justified in
convicting the accused. The said finding recorded by the trial
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Court are based on the material evidence on record and does
not warrant any interference by this Court.
11. On perusal of the records of the trial Court and deposition
of victim-PW1, it would go to show that one Senior Counsel
Sri.J.V.Pathan has appeared for all the accused. However,
cross examination was done by Advocate Sri M.A.Moulvi. The
cross-examination of PWs.4 to 20 have been done by the
Senior Counsel Sri J.V. Pathan. The other two witnesses, PW2
and PW3 are the panch witnesses to the panchanama, Exs.P.5
and P.8 to whom the Advocate Sri M.A. Moulvi has cross
examined only by making formal suggestions. However, PW2
and PW3 are not material witnesses but the said Advocate
sought time for further cross examination of the victim after
making introductory cross examination, the same was rejected
by the trial Court. It appears that the Advocate M.A. Moulvi is
either the junior Advocate of Sri J.V. Pathan, Senior Counsel or
represented him but he was not authorized by the accused to
conduct the case.
12. In a case of sexual assault against a minor victim,
material witness is the victim herself. Therefore, there is need
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to effectively cross examine the witness to putforth defence of
the accused. However, that has not been done in the present
case.
13. The order sheet would go to show that the power of
Senior Counsel Sri J.V. Pathan is accepted for accused Nos.2
and 3 vide order sheet dated 20.08.2018. The other junior
counsel have simply signed it and it is only Sri J.V. Pathan who
has conducted the case by cross examining the other
witnesses. It is because of this reason only, the junior counsel
of Sri J.V.Pathan who has partly cross examined PW1 by
making introductory cross examination, sought time for cross
examination. However, the same has been rejected by the trial
Court. It is true that thereafter there was no any application
filed by the accused to recall PW1 for the purpose of cross
examination. This must have also been noticed by the trial
Court while recording statement U/s 313 of Cr.P.C. At least at
that stage, the Presiding Officer would have brought to the
notice of the defence counsel that victim-PW1 has not been
fully cross examined. However, on the basis of incomplete
cross examination that too only on introductory cross
examination, proceeded to rely on the evidence of victim-PW1
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to convict the accused Nos.2 and 3 for the offences alleged
against them.
14. Learned counsel for the appellants in support of his
contention that accused should have opportunity of defence by
legal practitioner of his choice, placed reliance on the Division
Bench judgment of this Court in Somappa Hanamantappa
Vs. State of Karnataka reported in 1986 Cri.L.J. 1201
(KAR) wherein in the facts and circumstances of the present
case, at paragraph No.3 has held as under:
"3. There is sufficient force in these contentions of
Mr.H.F.M. Reddy that the accused had been denied the
opportunity of making proper defence in the case for want of
expert services of a Senior Counsel engaged by him One of the
components of fair procedure in the administration of criminal
justice is that the accused should have the opportunity of
making his defence by a legal practitioner of his choice. That is
his Constitutional right, under Article-22 of the Constitution,
and in order to give effect to this Constitutional right, it has
also now been embodied in the Directive Principles of State
Policy, as provided under Article-39A of the Constitution, that
the State shall secure equal justice and free legal aid by a
suitable legislation or scheme or any other way to ensure that
the opportunities or securing justice are not denied to any
citizen by reason of economic or other disabilities. That right
has also been statutorily accepted and incorporated in Section
303 of Cr. P.C. which provides that any person accused of an
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offence before a Criminal Court or against whom the
proceedings are initiated under this Code may have his right to
defend by a Pleader of his choice. That right, therefore, should
not be interfered with."
This Court having so observed, has set aside judgment of the
trial Court and remanded the matter to the trial Court for
disposal of the same afresh in accordance with law.
15. Learned counsel for the appellants also places reliance on
the judgment of the Hon'ble Apex Court in Rahul Vs. State of
Delhi, Ministry of Home Affairs & Anr. reported in 2023
AIAR (Criminal) 213 wherein it has been observed and held
at paragraph No. 35 as under:
"35. In the instant case, material witnesses examined by
the prosecution having not been either cross-examined or
adequately examined, and the trial court also having acted as
a passive umpire, we find that the Appellants-accused were
deprived of their rights to have a fair trial, apart from the fact
that the truth also could not be elicited by the trial court. We
leave it to the wisdom and discretion of the trial courts to
exercise their powers under Section 165 of the Indian Evidence
Act for eliciting the truth in the cases before them, howsoever
heinous or otherwise they may be."
The Hon'ble Apex Court has emphasized need of the trial Judge
to effectively participate in the proceedings of the trial and
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cannot act as a passive umpire. In the present case also the
trial judge only remained as a passive umpire. The trial Judge
either should have exercised power U/s 165 of the Indian
Evidence Act to put required questions and record the answer
to unravel the truth or to bring to the notice of counsel for
accused that material witness, PW1-victim being not effectively
cross examined. However, the trial Court mechanically
proceeded to rely on the incomplete cross examination of PW1
which is only introductory in nature.
16. Learned counsel for the appellants also relied on another
judgment of the Division Bench of this Court in Govindaraju @
Kutti son of Bala Vs. The State of Karnataka (Criminal
Appeal No. 1459/2019 dated 23.12.2020) wherein, under
similar facts and circumstances of the case where the accused
was deprived of cross examining the material witnesses of the
prosecution, after analyzing the legal position and the judgment
of the Hon'ble Apex Court, has observed and held at paragraph
Nos. 22, 23 and 24 as under:
"22. We have come across several cases, wherein the
trial Courts during trial when the accused counsel was absent,
closes the cross-examination of the defence as nil and proceed
to pass the judgment of conviction and order of sentence
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against the accused. It is against the fundamental rights
guaranteed to the accused persons under Articles 21,
22 and 39A of the Constitution of India as well as the
provisions of Sections 303 and 304 of the Code of Criminal
Procedure. In case the counsel for the defence was not present
on the particular day, when the matter was posted for cross-
examination or not at all appeared for ever to cross-
examine the prosecution witnesses, it is the duty cast on the
Court to ensure that opportunity should be given to the
accused to engage the services of counsel or it is the duty of
the Court to ensure to provide free legal assistance to the
accused by appointing advocate from the Legal Services
Authority, in order to provide fair trial.
23. In some of the criminal cases, the accused might be in
judicial custody or might be suffering from poverty or similar
circumstances and not able to engage counsel on his behalf. In
those circumstances, the Court should act as Societal parents
and ensure fair trial is provided before passing the judgment of
conviction and order of sentence against the accused persons.
Because of the mistake committed by the learned counsel for
the accused, the accused should not be denied opportunity to
cross-examine the prosecution witnesses. Providing a legal
assistance is a constitutional mandate under Articles 21,
22(1) and 39A of the Constitution of India and
further, Section 304 of the Code of Criminal Procedure
provides for legal assistance to an accused on State
expenditure.
24. In view of the above, in the present case, the trial Court is
not justified in convicting accused without providing an
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opportunity to the accused to cross-examine the prosecution
witnesses, which is nothing but denial of fair trial."
17. In view of the principles enunciated in the
aforementioned judgments of this Court and Hon'ble Apex
Court the legal position that emerges is the fundamental right
of the accused to have fair trial and opportunity should have
been given by the trial Court to cross examine all the material
witnesses. Due to the mistake of counsel or being not
effectively participated in the trial proceedings, it is the duty of
the Court to provide necessary legal assistance to effectively
represent the accused and cross examine material witnesses of
the prosecution. Further, in appropriate case like this to
exercise power U/s 165 of the Indian Evidence Act to discover
the truth from the mouth of the witnesses who is in the witness
box. The trial Judge cannot afford to be a mute spectator or
passive umpire in the trial proceedings of a case which is of
heinous in nature.
18. In the present case, accused Nos.2 and 3 have not been
given requisite opportunity to cross examine PW1 effectively
and the prayer seeking time for cross examination has been
unreasonably rejected, thereby caused serious prejudice to the
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fundamental right of the accused in having fair trial. Therefore,
I.A. No. 2/2024 filed U/s 391 of Cr.P.C. is hereby allowed. The
matter is required to be remanded to the trial Curt for giving
opportunity to the counsel for accused to effectively cross
examine PW1 and then proceed to dispose of the matter in
accordance with law.
19. Learned counsel for respondent No.2 submitted that in
case if I.A. No. 2/2024 is to be allowed, then at least timeframe
be fixed to complete the cross examination of victim-PW1 and
to dispose of the matter in accordance with law, otherwise the
victim who has already undergone the ordeal of the trial will be
unnecessarily made to run from pillar to post waiting for her
turn to cross examination and such a situation will not only
humiliate the victim-PW1, but also put the victim under mental
stress who is trying to come out of the trauma that she has
suffered.
20. The submission of the learned counsel for respondent
No.2 appears to be fair and reasonable and timeframe has to
be fixed by this Court while according permission to the counsel
for accused Nos.2 and 3 to cross examine PW1. Therefore, in
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order to give such opportunity to the counsel for accused to
have fair trial in the case, interference of this Court is required.
Consequently, proceed to pass the following order.
ORDER
Appeal filed by the appellants/accused Nos.2 and 3 is
hereby allowed.
The judgment of trial Court on the file of Addl. District
and Sessions Judge, Gadag in S.C. No. 54/2016 (POCSO) dated
13.09.2022 is hereby set aside.
The matter is remitted to the trial Court for disposal of
the case in accordance with law subject to following conditions.
1) Counsel for accused has to cross examine PW1 on the day
when the victim appears for cross examination and
complete entire cross examination within a span of one
week covering only two adjournments;
2) Accused Nos.2 and 3 shall deposit in the Court the
reasonable expenses of Rs.5,000/- on the first date of
appearance, which shall be paid to the victim to meet her
traveling, food and other incidental expenses, etc. to be
incurred by her when she appears before the Court for
her cross examination;
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3) The trial Court is directed to dispose of the case as
expeditiously as possible and not more than the period of
three months on conclusion of cross examination of PW1;
4) Accused No.3 who is on bail pursuant to the order of this
Court is directed to appear before the trial Court on
16.04.2024;
5) Jail authorities of Central Prison, Dharwad is directed to
produce the accused No.2 before the trial Court on the
said date without fail;
6) The trial Court on the said date, i.e., 16.04.2024, must fix
the date for cross examination of PW1 and complete the
same as early as possible but not beyond the period of
two weeks from 16.04.2024.
7) Registry is directed to send a copy of this judgment to the
trial Court along with trial Court records, forthwith;
8) Registry is directed to send a copy of this judgment to the
jail authorities of Central Prison, Dharwad, forthwith, for
compliance.
Sd/-
JUDGE
BVV
