Karnataka High Court
Santosha K M vs State Of Karnataka on 28 February, 2024
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CRL.A No. 1408 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE S RACHAIAH
CRIMINAL APPEAL NO. 1408 OF 2021 (C)
BETWEEN:
SANTOSHA K M
S/O MANJUNATHA K M
AGED ABOUT 23 YEARS
RESIDING OF KANCHIGANALA VILLAGE
Digitally TUBUGEREHOBLI
signed by DODDABALLAPURA TALUK
SUDHA S
Location: BANGALORE RURAL DISTRICT - 561 203.
HIGH (NOW IN DURESS)
COURT OF
KARNATAKA
...APPELLANT
(BY SRI. S S SRINIVASA RAO, ADVOCATE)
AND:
STATE OF KARNATAKA
BY DODDABALLAPURA RURAL POLICE STATION
DODDABALLAPURA TALUK
BENGALURU RURAL DISTRICT
REPRESENTED BY SPP
HIGH COURT BUILDING
BENGALURU - 560 001.
...RESPONDENT
(BY SRI. VIJAYKUMAR MAJAGE, SPP-II)
THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
ASIDE THE JUDGMENT DATED 07.04.2021 AND SENTENCE DATED
09.04.2021 PASSED BY THE IV ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DODDABALLAPURA IN S.C.NO.10038/2018.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
SREENIVAS HARISH KUMAR J., DELIVERED THE FOLLOWING:
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CRL.A No. 1408 of 2021
JUDGMENT
This appeal is directed against the judgment dated
07.04.2021 in S.C.No.10038/2018 on the file of the IV Addl.
District and Sessions Judge at Doddaballapura. The accused
was tried for the offences punishable under Sections 302 and
506 of the Indian Penal Code (for short 'IPC') and convicted for
the same. He is sentenced to life imprisonment for the offence
punishable under Section 302 of IPC and imprisonment for a
period of seven years for the offence punishable under Section
506 of IPC besides fine.
2. The allegation is that on 13.02.2018, the accused
caused death of one Harisha in the background of a previous
incident said to have taken place on 09.02.2018. The
prosecution examined 20 witnesses and relied on documents
Exhibits P1 to P20 and material objects at M.Os.1 to 12. The
Trial Court has found that the testimonies of eyewitnesses
namely PWs.1, 13 to 15 are reliable.
3. We have heard the arguments of Shri S.S.Srinivasa
Rao, learned counsel for appellant and Shri Vijaykumar Majage,
learned SPP-II for the State.
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4. It is the submission of Shri S.S.Srinivasa Rao,
learned counsel for appellant, that the accused was denied of
sufficient opportunity to cross-examine the prosecution
witnesses. He refers to the cross-examination of some of the
witnesses and submits that cross-examination of those
witnesses is inadequate. The appellant was in custody during
COVID period. Because accused was in custody throughout, he
was not able to engage competent advocate for effectively
cross-examining the witnesses. This has resulted in conviction
of the accused. He submits that PWs.13 to 15 and PW-20 could
not be cross-examined.
4.1 Learned counsel for the appellant refers to the
order of learned Single Judge of this Court in Criminal Petition
No.7570/2019 to submit that when opportunities were denied
to the accused, he was constrained to approach this Court by
filing a criminal petition under Section 482 of Cr.P.C.,
challenging the order of rejecting the application filed under
Section 311 of Cr.P.C. At that time, the counsel who appeared
on behalf of the accused restricted the application under
Section 311 of Cr.P.C., for recall of the witnesses PWs.1, 2, 4
and 5 and gave up the application insofar as PWs.6 to 10 and
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13 to 15 were concerned. This was the reason for not cross-
examining many prominent witnesses. This has seriously
prejudiced the interest of the accused and therefore, he
submits that it is a fit case to be remanded to the Trial Court in
order to afford an opportunity to the accused to cross-examine
the witnesses.
5. Shri Vijaykumar Majage, learned SPP-II, submits
that it is not as though opportunity was not provided to the
accused for cross-examining the prosecution witnesses, he
failed to avail the opportunity. PW.1 has been fully cross-
examined. The application under Section 311 of Cr.P.C., was
filed to recall PWs.1, 2, 4 to 10 and 13 to 15. When that
application was rejected, the accused approached this Court by
filing Criminal Petition No.7570/2019 and during the hearing of
the said petition, learned counsel for the accused did not press
the application under Section 311 of Cr.P.C., as it related to
recalling PWs.6 to 10 and 13 to 15. Thereafter, PWs.1, 2, 4
and 5 were recalled and they were cross-examined. The
accused did not file the application under Section 311 Cr.P.C.
for recalling PW.20. Therefore, there is no meaning in the
submission of learned counsel Shri S.S.Srinivasa Rao that the
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accused was denied of the opportunity to cross-examine the
witnesses. There is no scope for remand. It is a case based on
direct evidence. Testimony of eyewitnesses is fully believable.
The Trial Court has given cogent reasons for recording
conviction against the accused and hence, the appeal deserves
to be dismissed.
6. Having heard both the sides, it is to be stated that
though there is a lapse on the part of the accused in cross-
examining the witnesses in spite of giving him sufficient
chances, it is to be stated that since he is convicted for life in
relation to offences under Section 302 of IPC, the accused
should not be under an impression that he was denied of
sufficient opportunity.
7. We have perused the deposition of the witnesses.
PW.1 has been fully cross-examined. PWs.13 to 15 are stated
to be other eyewitnesses, but they have not been cross-
examined. We have perused the cross-examination of the
Investigating Officer. It is too inadequate. When PW.20 has
given a lengthy account of the entire investigation conducted
by him, his cross examination prima facie appears to be
incomplete and ineffective. Therefore, in order to give one
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more opportunity to accused for subjecting the witnesses to
cross-examination, the case can be remanded to the Trial
Court. As we find that PWs.1, 2, 4 and 5 have been fully cross-
examined, remand should be restricted to cross-examining
PWs.6 to 10, 13 to 15 and 20 only.
8. In this view, we proceed to pass the following:-
ORDER
(i) Criminal Appeal is allowed.
(ii) The impugned judgment is set aside. The case
stands remanded to the Trial Court for the
limited purpose of cross-examination of PWs.6 to
10, 13 to 15 and 20.
(iii) The accused shall complete cross-examination of
all these witnesses, without seeking
adjournment, on day to-day basis.
(iv) The accused shall be produced before the Court
on 11.03.2024 and on that day, the Trial Court
shall secure the presence of the witnesses by
issuing summons or warrant, as the case may be
and proceed with the trial of these witnesses and
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entire process shall be completed within a period
of three months from 11.03.2024.
(v) The Trial Court shall decide the case afresh.
Sd/-
JUDGE
Sd/-
JUDGE
BSS
