Madras High Court
Chinnamani (M-46) vs The State Rep. By Its on 6 March, 2023
Crl.A.No.616 of 2022
dIN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 06.03.2023
CORAM:
THE HONOURABLE Mr.JUSTICE M.SUNDAR
and
THE HONOURABLE Mr.JUSTICE M.NIRMAL KUMAR
Crl.A.No.616 of 2022
and
Crl.M.P.No.8178 of 2022
in
Crl.A.No.616 of 2022
Chinnamani (M-46)
S/o.Kandhan ... Appellant/Accused
-Vs-
1.The STATE rep. By its
The Inspector of Police
Vennandur Police Station
Namakkal
(Crime No.374/2016) ... Respondents/Complainant
PRAYER :
Criminal Appeal filed under Section 374(2) of Code of Criminal
Procedure, against the Judgment dated 04.01.2019 made in S.C.No.34 of
2017 on the file of the Sessions (Fast Track Mahila) Judge, Namakkal.
1/15
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Crl.A.No.616 of 2022
For Appellant : Dr.S.Manoharan
For Respondent : Mr.E.Raj Thilak
Additional Public Prosecutor
******
JUDGMENT
[Judgment of the Court was made by M.NIRMAL KUMAR, J.]
Criminal Appeal No.616 of 2022 has been filed challenging the order
of conviction and sentence passed by learned Sessions (Fast Track Mahila)
Judge, Namakkal in S.C.No.34 of 2017 dated 04.01.2019.
2.The appellant is a single accused charged for offence under Section
302 IPC. After full fledged trial, Trial Court had convicted the appellant
and sentenced him to undergo life imprisonment along with fine of
Rs.2,000/-, in default of payment of fine, to undergo six months rigorous
imprisonment, against which the present appeal has been preferred by the
appellant.
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Crl.A.No.616 of 2022
3.During the course of trial, P.W.1 to P.W.15 were examined and
Exs.P.1 to P.16 and Material objects M.O.1 and M.O.2 series were marked
on the side of the prosecution. On the side of the defence, no witnesses
were examined and no documents were marked.
4.The gist of the case is that the appellant/accused is the husband of
the deceased. The appellant/husband and the deceased/wife got married 11
years prior to the occurrence and out of wedlock, they have two girl
children aged about 10 years and 7 years. The deceased was in the habit of
going out of house without any reason unnecessarily during day as well as
night hours which was questioned by the appellant and he suspected her
fidelity. On 01.12.2016 when the appellant's wife went out of her house at
about 9.00 P.M and returned back, she was questioned by the
appellant/accused, however she did not care for him and again went out.
Enraged over her activity, the appellant/accused decided to do away with
his wife and on the night intervening between 01.12.2016 and 02.12.2016
at about 1.00 AM when the appellant's wife was sleeping on a cot, the
appellant is said to have strangulated her using nylon rope and thereby
caused the death of his wife.
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Crl.A.No.616 of 2022
5.On the complaint of P.W.1, who is the father of the deceased, a case
came to be registered. On receipt of the complaint, P.W.15/Inspector of
Police visited the scene of occurrence and prepared a rough sketch/Ex.P.14
in the presence of witnesses. Then he conducted inquest over the body of
the deceased and thereafter, sent the body for postmortem. In the
meanwhile, the Inspector of Police examined the witnesses viz.,
P.W.1/father of the deceased, P.W.2/mother of the deceased, P.W.3/brother
of P.W.1, P.W.4 and P.W.5/uncle of the deceased and recorded their
statements. All the witnesses had stated about the appellant's conduct of
quarrelling with his wife frequently suspecting her fidelity. Further, P.W.1
to P.W.5 had seen the rope mark on the neck of the deceased Poongodi.
P.W.7/Lakshmi, who is the sister-in-law of the accused had heard the
quarrel between the accused and the deceased frequently. P.W.8 is a
witness for the observation mahazar and P.W.9 is the VAO who recorded
the confession statement of the accused. On the confession of the accused,
M.O.1/nylon rope was recovered. P.W.10 is the photographer who took
photographs of the body of deceased and the photographs were marked as
M.O.2 series. P.W.11 is the doctor who conducted postmortem over the
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Crl.A.No.616 of 2022
body of the deceased and he had confirmed that the death was due to
strangulation and also about the presence of dark reddish ligature abrasion
around the neck and contusion over right side of thyrohyoid muscle and
further gave final opinion that “The deceased would appear to have died
of Asphyxia due to ligature strangulation” as per Ex.P10. P.W.13 is the
forensic expert and P.W.15 is the Investigating Officer who examined the
witnesses and collected the documents. The Trial Court on conclusion of
trial had convicted the appellant as stated above.
6.The primary contention of the learned counsel for the appellant is
that the appellant being an illiterate and hailing from marginalized society
has got no means to contest the case and no one came forward to support
him. Further, he had no access to legal aid and therefore, the Trial Court
appointed a legal aid counsel to defend the case on behalf of the
appellant/accused. Through the Legal Aid Counsel appointed by the Trial
Court, the appellant/accused filed a petition under Section 311 Cr.P.C., in
Crl.M.P.No.531 of 2018 in S.C.No.34 of 2017 to recall PW1 to PW15, but
the same was dismissed, thereafter, left it at that stage. The Trial Court
proceeded with the case based on the chief examination of witnesses, which
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Crl.A.No.616 of 2022
went unchallenged and, convicted the appellant/accused and imposed
capital punishment of life sentence.
7.The learned counsel for the appellant further submitted that as per
Section 137 of the Indian Evidence Act, 1872, evidence includes chief
examination, cross examination and re-examination. In the instant case,
chief examination of the witnesses alone recorded, the witnesses were not
subjected to any cross examination and hence, it cannot be taken that
evidence is completed and concluded. Awarding of capital punishment
without full fledged trial would amount to violation of fundamental right.
The learned counsel for the petitioner relied upon the decision of the
Hon'ble Apex Court dated 24.02.2011 made in the case of Md. Sukur Ali
v. State of Assam, wherein the Hon'ble Apex Court referring to Articles 21
and 22(1) of the Constitution observed that depriving a person of his life or
liberty should be fair. The learned counsel further relied upon the
unreported decision of this Court dated 17.02.2017 made in Criminal
Appeal No.14 of 2017 wherein this Court had stressed the importance and
purpose of cross examination by quoting the observation of the Hon'ble
Supreme Court in the case of “Kartar Singh Versus State of Punjab
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Crl.A.No.616 of 2022
reported in 1994 (3) SCC 569 and Jayendra Vishnu Thakur Versus
State of Maharashtra reported in 2009 (7) SCC 104” and reiterated the
principle that it is an essential ingredient of reasonable, fair and just
procedure to an accused who is to seek his liberation through the Court
process that he should have effective legal assistance. Thus, in the light of
the above, the learned counsel for the appellant prayed for setting aside the
judgement of the Trial Court.
8.Per contra, the learned Additional Public Prosecutor fairly
submitted that in the instant case, none of the witnesses have been cross
examined. The learned Additional Public Prosecutor by referring to
paragraph 7 of the Trial Court judgment submitted that earlier one
Mr.R.Sivaraman, Advocate appeared for the accused but he did not cross
examine the prosecution witnesses. Thereafter, one Mr.V.Balakrishnan,
Advocate appeared for the accused and he also failed to cross examine the
witnesses. In such situation, a Legal Aid Counsel by name M.Syed Kadar
was appointed, who entered appearance on 16.08.2018 after closing of
prosecution side evidence. The said Legal Aid Counsel filed a petition
under Section 311 Cr.P.C to recall P.W.1 to P.W.15 and the said petition
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Crl.A.No.616 of 2022
was dismissed by the Trial Court on 26.09.2018. Thereafter, the Trial
Court gave sufficient time [3 months] for the Legal Aid Counsel to
challenge the dismissal of the Section 311 Cr.P.C petition, however no such
appeal was filed till 26.12.2018 and therefore, the Trial Court without
waiting further, posted the case for judgment and judgment of conviction
was rendered by the Trial Court on 04.01.2019.
9.He further submitted that as per Section 304 (1) Cr.P.C, in a trial
before the Court of Sessions, if the accused is not represented by a pleader
and where it appears to the Court that the accused has no sufficient means
to engage a pleader, the Court shall assign a pleader for his defence at the
expenses of the State. In this case, it had been done. The appellant/accused
was given all opportunity and sufficient time to cross examine the
witnesses, which was not utilized by him. Thereafter only the Trial Court
pronounced judgment of conviction.
10.The apprehension of the learned Additional Public Prosecutor is
that if the judgment of the Trial Court is set aside and if the appellant is let
out on bail, the Trial cannot be conducted in a fair manner within a
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Crl.A.No.616 of 2022
reasonable time. He would further submit that the appellant has been in
prison from the date of his arrest and he had never been out of prison
during the entire trial period.
11.The occurrence is of the year 2016 and the case is of the year 2017
and all the witnesses have been examined in the year 2017. Now if the
petitioner is let out on bail, the Trial cannot be concluded expeditiously. On
instructions, the learned Additional Public Prosecutor further submits that
the Trial can be completed within a period of three months and the
witnesses can be produced without delay and there will not be any delay on
the part of the prosecution. If the appellant cooperates, the Trial can be
completed within a short period.
12.Considering the submissions made by both sides and on perusal of
the materials placed before this Court, this Court is of the view that as the
judgment of the Trial Court came to be passed without completion of cross
examination on the part of the appellant/accused, it amounts to denial of
fundamental right of the appellant/accused who is denied for being
defended effectively and properly. In the instant case, no doubt a Legal Aid
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Counsel was appointed but it was only in letter and not in spirit, the Legal
Aid Counsel had not effectively defended the appellant/accused. The
Constitutional Bench of the Hon'ble Apex Court in “Menaka Gandhi
Versus Union of India reported in AIR 1978 SC 597” held that 'The
procedure for depriving a person of his life or liberty to be fair,
reasonable and just. We are of the opinion that it is not fair or just that a
criminal case should be decided against the accused in the absence of a
counsel'. In this case, mere presence of counsel without any cross
examination of witnesses would be of no avail. The reported judgment of
the Hon'ble Apex Court in “Kartar Singh Versus State of Punjab reported
in 1994 3 SCC 569” explained the purpose of cross examination in
paragraph No.278 in the following words:
“278.Section 137 of the Evidence Act defines what
cross- examination means and Sections 139 and 145 speak
of the mode of cross-examination with reference to the
documents as well as oral evidence. It is the jurisprudence
of law that cross-examination is an acid-test of the
truthfulness of the statement made by a witness on oath in
examination-in-chief, the objects of which are :
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Crl.A.No.616 of 2022
(1) to destroy or weaken the evidentiary value of the
witness of his adversary;
(2) to elicit facts in favour of the cross- examining
lawyer's client from the mouth of the witness of the
adversary party;
(3) to show that the witness is unworthy of belief by
impeaching the credit of the said witness;
and the questions to be addressed in the course of
cross- examination are to test his veracity; to discover who
he is and what is his position in life; and to shake his
credit by injuring his character.”
13.Thus, before convicting a person, the Courts have to be vigilant,
cautious and get satisfied that the Constitutional guarantees and right of
accused are provided in letter and spirit and not in words. More so, while
awarding capital punishment. In this case, the appellant/accused has been
denied just and fair trial. It is to be seen that the appellant/accused is in
confinement during the entire trial period. Hence, it cannot be said that for
the purpose of delay and to drag the case, cross examination of witnesses
were not done. For the fault of the counsel, the appellant/accused cannot be
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Crl.A.No.616 of 2022
punished and allowed to sufferance of the sentence.
14.In the light of the above discussions, we are of the considered view
that the judgment of the Trial Court dated 04.01.2019 made in S.C.No.34
of 2017 is liable to be set aside and accordingly set aside and the Criminal
Appeal stands allowed with the following directions to the Trial Court:
(i) The Trial Court to proceed with the trial from the stage
of cross examination. P.W.1 to P.W.15 are hereby recalled
and cross examination of the witnesses shall be carried out
without any delay preferably on day to day basis.
(ii) The concerned District Legal Services Authority has
to appoint a senior advocate from the legal aid panel to
effectively defend the appellant.
(iii) The Trial Court after giving sufficient opportunity
shall conclude the Trial within a period of three months
starting from 3rd April 2023 and in any event not later than
July 2023.
(iv) All the rights of the appellant/accused are preserved.
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Crl.A.No.616 of 2022
15.In view of the judgment made in the captioned Criminal Appeal,
Criminal M.P.No.8178 of 2022 filed for suspension of sentence is hereby
dismissed. No costs.
[M.S.J] [M.N.K.J]
06.03.2023
Speaking Order/Non-Speaking Order
Neutral Citation : Yes/No
Internet : Yes/No
Index : Yes/No
pgp
Note : Issue order copy on 10.03.2023.
To
1.The Sessions (Fast Track Mahila) Judge,
Namakkal.
2.The Inspector of Police,
Vennandur Police Station,
Namakkal.
3.The Public Prosecutor,
High Court, Madras.
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Crl.A.No.616 of 2022
4.The District Legal Services Authority,
Namakkal.
M.SUNDAR, J.
and
M.NIRMAL KUMAR, J.
pgp
Crl.A.No.616 of 2022
and
Crl.M.P.No.8178 of 2022
https://www.mhc.tn.gov.in/judis
Crl.A.No.616 of 2022
Dated : 06.03.2023
https://www.mhc.tn.gov.in/judis
