Karnataka High Court

Vijay vs State Of Karnataka on 10 September, 2024

Author: Mohammad Nawaz

Bench: Mohammad Nawaz

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                                                     NC: 2024:KHC:37014
                                                 CRL.A No. 824 of 2024




                  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 10TH DAY OF SEPTEMBER, 2024

                                      BEFORE
                    THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
                        CRIMINAL APPEAL NO. 824 OF 2024
             BETWEEN:

                   VIJAY
                   S/O RAMESHA
                   AGED ABOUT 21 YEARS
                   (AS PER CHARGESHEET)
                   (PRESENTLY AGED ABOUT 28 YEARS)
                   R/AT MADHANAYAKANAHALLI MADDUR TALUK
                   MANDYA DISTRICT-562162.
                                                           ...APPELLANT
             (BY SRI. ADARSHA H M.,ADVOCATE)

             AND:

             1.    STATE OF KARNATAKA
                   MADDUR POLICE STATION
                   REP BY SPP
Digitally          HIGH COURT OF KARNATAKA-560001
signed by
LAKSHMI T
             2.    VICTIM GIRL
Location:          REPRESENTED BY NATURAL GUARDIAN
High Court
of                 FATHER KEMPARAJU
Karnataka          AGED ABOUT 16 YEARS
                   (AS PER CHARGE SHEET)
                   NOW SHE IS AGED ABOUT 23 YEARS,
                   R/AT MADANAYAKANAHALLI,
                   MADDUR TALUK,
                   MANDYA-562162.
                                                        ...RESPONDENTS
             (BY SRI. RAHUL RAI K., HCGP)

                  THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET
             ASIDE THE JUDGMENT OF CONVICTION DATED 14.08.2023
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                                               NC: 2024:KHC:37014
                                          CRL.A No. 824 of 2024




AND ORDER OF SENTENCE DATED 16.08.2023, PASSED BY THE
ADDITIONAL DISTRICT AND SESSIONS JUDGE, FTSC II
MANDYA      IN   SPL.C.NO.91/2017,  CONVICTING    THE
APPELLANT/ACCUSED       FOR     THE  OFFENCE    P/U/S
341,506,376(1) OF IPC, SEC.4 OF POCSO ACT 2012 AND
SEC.3(1)(w) OF SC/ST (POA) ACT.

    THIS APPEAL IS COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM:       HON'BLE MR JUSTICE MOHAMMAD NAWAZ


                         ORAL JUDGMENT

The judgment and order dated 14.08.2023 and

16.08.2023 passed by the Court of Additional District and

Sessions Judge - FTSC II, Mandya in Spl.C.No.91/2017 is

under challenge in this appeal preferred by accused No.1.

2. Vide impugned judgment, the learned Sessions

Judge has convicted accused No.1 for the offence

punishable under Section 341, 506, 376(1) of IPC, Section

4 of POCSO Act, 2012 and Section 3(1)(w) of SC/ST (POA)

Act.

3. Accused Nos.2 and 3 are acquitted of the

offence punishable under Section 341 and 114 of IPC and

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accused No.1 of the offence punishable under Section

3(2)(v) of SC/ST (POA) Act.

4. Heard the learned counsel for appellant, learned

High Court Government Pleader for the State and perused

the material on record.

5. It is the primary contention of the learned

counsel for appellant, apart from merits of the case, that

the accused was not given proper opportunity to cross

examine the witnesses including the material witness i.e.,

the victim, examined as PW.1. It is therefore, contended

that the impugned judgment has resulted in miscarriage of

justice.

6. In the light of the above arguments advanced

by the learned counsel for appellant, this Court felt it

necessary to examine the evidence of prosecution

witnesses to verify as to whether proper opportunity was

given to the defence to cross-examine the prosecution

witnesses. Before dwelling upon the said exercise, it is

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necessary to state the brief facts of the case which are as

under:

The complainant/CW.1 examined as PW.2 is victim's

mother. The complainant, accused Nos.2 and 3 belong to

Adi Karnataka Caste and accused No.1 belong to Vokkaliga

caste. All of them are residents of Madanayakanahalli. It

is alleged, accused No.1 being aware of the caste of the

victim, on 08.02.2017 at about 12.00 noon, when she had

gone near the pond in Madanayakanahalli to answer the

call of nature, wrongfully restrained her from proceeding

further, dragged her near the pond and committed rape on

her. Further, accused Nos.2 and 3 abetted accused No.1

to commit the offence.

7. In order to bring home the guilt of the accused,

the prosecution in all examined PWs.1 to 15 and got

exhibited 17 documents and 6 material objects.

8. PW.1 is the victim. PWs.2 and 3 are her parents

and PWs.4 is her grandmother. PWs.5 and 7 are the

relatives. PW.6 is the incharge Head Master of the School

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where the victim studied. PW.8 is an independent witness.

PW.9 is the Doctor who examined the accused. PW.10 is

the PSI who recorded the statement of the victim. PW.11

is the PSI who registered the case. PW.12 is the Tahsildar

who issued the caste certificate of the victim. PW.13 is

the Dy. SP who conducted investigation and filed charge

sheet. PW.14 is the Doctor who examined the victim and

issued the medical report marked as Ex.P17 and PW.15 is

the ASI who apprehended the accused.

9. A perusal of the evidence of the above

witnesses goes to show that except PW.2, none of the

other witnesses are cross-examined by accused No.1. The

trial Court has proceeded to take the cross-examination as

nil, since time was sought by the learned counsel

appearing for accused No.1. In so far as PW.2 is

concerned, this Court finds that she was not cross-

examined by the counsel as he was not present. The trial

Court therefore, permitted accused No.1 himself to cross-

examine the said witness.

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10. Further, when the case was posted for

arguments, the learned Sessions Judge has proceeded to

hear only the learned counsel for accused Nos.2 and 3,

observing that the learned counsel for accused No.1 is

reluctant to commence the argument.

11. It is just and necessary to place reliance on the

observations made by this Court in 'Govindaraju @ Kutti

Vs. State of Karnataka' reported in '2020 SCC Online KAR

5231', para 25 to 27 of the said judgment reads as under:

"25. 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 against the accused. It is against the fundamental rights guaranteed to the accused persons under Articles 21, 22 and 39-A 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

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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.

26. 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 legal assistance is a constitutional mandate under Articles 21, 22(1) and 39-A 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.

27. In view of the above, in the present case, the trial Court is not justified in convicting accused without providing an opportunity to the accused to cross-examine the prosecution witnesses, which is nothing but denial of fair trial."

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12. Having gone through the entire material on

record, I am of the considered view that denial of

opportunity to cross-examine the witnesses has resulted in

miscarriage of justice. The appellant/accused No.1 has

made out a case to remand the matter to the trial Court

for providing him an opportunity to cross-examine the

prosecution witnesses. Hence, the following:

ORDER

Criminal Appeal is Allowed.

(i) Impugned judgment and order of conviction

and sentence dated 14.08.2024 & 16.08.2024 passed in

Spl.C.No.91/2017 by the Court of Additional District and

Sessions Judge - FTSC-II, Mandya in so far as convicting

and sentencing accused No.1 for the offence punishable

under Section 341, 506, 376(1) of IPC, Section 4 of

POCSO Act, 2012 and Section 3(1)(w) of SC/ST (POA) Act

is set aside.

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(ii) Matter is remanded back to the trial Court with

a direction to the learned Sessions Judge to provide an

opportunity to accused No.1 to cross-examine all the

prosecution witnesses and thereafter, to dispose of the

matter in accordance with law.

(iii) If the accused No.1 is unable to engage the

services of a counsel, the trial Court shall provide legal

assistance to him by appointing an Advocate from the

Legal Services Authority, in order to provide fair trial.

(iv) The trial Court is directed to dispose of the

matter as expeditiously as possible within an outer limit of