Allowed

Pratima Devi v. the State of Karnataka

Karnataka HC26 Oct 2023CRL.A/368/2019

Case brief

AI extract

What is this about?

High Court allowed criminal appeals challenging conviction and sentence. It held that failure of the trial court to assign free legal aid under Section 304 Cr.P.C. and Articles 21, 39A of Constitution vitiated the trial. Matter remanded to trial court for fresh proceedings.

What did the court decide?

Impugned judgment set aside. Matter remanded to trial court for fresh trial with free legal aid under Section 304 Cr.P.C. Accused Nos.1 and 2 produced on 20.11.2023.

Pratima Devi Vs the State of Karnataka — Child Sexual Offences (POCSO) | Karnataka HC (2023)

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NC: 2023:KHC:38034-DB CRL.A.No.368/2019 C/w CRL.A.No.2258/2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF OCTOBER, 2023

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PRESENT

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THE HON'BLE MRS. JUSTICE K.S.MUDAGAL

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AND

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THE HON'BLE MR. JUSTICE K.V.ARAVIND

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CRIMINAL APPEAL No. 368/2019

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C/w

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CRIMINAL APPEAL No.2258/2018 (C)

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CRL.A.No.368/2019:

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BETWEEN:

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PRATIMA DEVI W/O SURESH KUMAR AGED ABOUT 27 YEARS R/AT GADAGA MARIYA VILLAGE KANGALI POST, MATIYARI BIHAR STATE-813 208 …APPELLANT

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(BY SRI T.A.BASAVARAJU, ADVOCATE)

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Digitally signed by PRABHU KUMARA NAIKA Location: High Court of Karnataka

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CRL.A.No.2258/2018:

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BETWEEN:

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MOHAMMAD MUNNA ALAM S/O AAS MOHAMMED MIYA AGED ABOUT 22 YEARS R/AT DEVASANDRA K.R.PURAM, BANGALORE - 560 048 …APPELLANT

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(BY SRI M.SHASHIDHARA., ADVOCATE)

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AND:

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THE STATE OF KARNATAKA REP. BY MAHADEVAPURA POLICE STATION BENGALURU CITY, REPRESENTED BY S.P.P/HCGP

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NC: 2023:KHC:38034-DB CRL.A.No.368/2019 C/w CRL.A.No.2258/2018

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HIGH COURT BUILDING

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BENGALURU – 560 001

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MANJUNATH @ BABU S/O CHINNAPPA AGED ABOUT 45 YEARS R/AT 3^RD CROSS, A.K. COLONY HOODI VILLAGE, MAHADEVAPURA BENGALURU-560 048 …RESPONDENTS (COMMON)

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(BY SRI VIJAYAKUMAR MAJAGE, SPP II FOR R1; SRI MANJUNATHA K., ADVOCATE FOR R2)

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THESE CRIMINAL APPEALS ARE FILED UNDER SECTION 374(2) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 10.10.2018 AND ORDER OF SENTENCE DATED 11.10.2018 PASSED BY THE LXX ADDITIONAL CITY CIVIL & SESSIONS JUDGE AND SPECIAL JUDGE, BANGALORE (CCH-71) IN S.C.NO.1416/2014 - CONVICTING ACCUSED NOS.1 AND 2 FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 302, 376, 201 READ WITH SECTION 34 OF IPC, SECTION 6 OF PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT AND SECTION 3(2)(V) OF SCHEDULED CASTES AND THE SCHEDULED TRIBES (PREVENTION OF ATROCITIES) ACT.

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THESE CRIMINAL APPEALS COMING ON FOR FINAL HEARING THIS DAY, K. S. MUDAGAL J., DELIVERED THE FOLLOWING:

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JUDGMENT

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Challenging the judgment and order of conviction and

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sentence passed against them, accused Nos.1 and 2 in S.C.No.1416/2014 on the file of LXX Additional City Civil & Sessions Judge & Special Judge, Bangalore (CCH-71) have preferred the above appeals.

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The appellants and accused No.3-Suresh Kumar were prosecuted in S.C.No.1416/2014 for the charges for the offences punishable under Sections 376, 302, 201 read with 34 of Indian Penal Code (for short ‘IPC’), Section 6 of the Protection of Children from Sexual Offences Act, 2012 ( for short 'POCSO Act') and Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'SC & ST (POA) Act' for short) on the basis of the charge sheet filed by Mahadevapura Police in Crime No.542/2014 of their police station.

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For the purpose of convenience, the parties are henceforth referred to according to their ranks before the trial Court.

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Accused No.2 is the wife of accused No.3. Accused Nos.1 to 3 hail from Bihar and belonged to non scheduled caste. The victim girl (hereinafter referred to as ‘X’ for the purpose of confidentiality) aged 6 years belonged to the Scheduled Caste. PWs.1 and 2 are the father and mother of the victim respectively. Accused Nos.2 and 3 were the tenants and PWs.1 and 2 were residing adjacent to their house, owned by PW.1.

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The case of the prosecution is as follows:

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(i) Accused No.2 had illicit relationship with accused No.1. On 01.09.2014 at 5.15 p.m., when accused Nos.1 and 2 were alone in the house, accused No.2 secured ‘X’ into her house and she abetted accused No.1 to commit aggravated sexual assault on ‘X’. He committed aggravated sexual assault on ‘X’. When she raised alarm, accused Nos.1 and 2, apprehending that ‘X’ may reveal the incident to others, with an intention of committing her murder, throttled her neck, assaulted her and committed her murder. After committing murder and concealing the dead body under the cot in the house of accused Nos.2 and 3, accused No.1 escaped. Accused No.3 on returning home in the night came to know about the offence. Then accused Nos.2 and 3 locked the door of the house and escaped. While searching for the missing girl, PW.1 and others suspecting some foul play in the hands of accused Nos.2 and 3, broke open the door of their house and found the dead body.

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(ii) Thereafter, PW.1 filed complaint in Mahadevapura Police Station against accused Nos.2 and 3 as per Ex.P1. Based on the said complaint, PW.18 - Police Inspector of

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Mahadevapura Police Station registered FIR as per Ex.P22 against accused Nos.2 and 3. On conducting investigation, PW.19 filed the charge sheet against accused Nos.1 to 3 for the aforesaid offences.

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During trial all the accused were in judicial custody. The trial Court on taking cognizance of the offences and on hearing the parties, framed charges against accused Nos.1 and 2 for the offences punishable under Sections 376, 302 read with 34 of IPC, Section 6 of POCSO Act and accused Nos.2 and 3 for the offences punishable under Section 201 read with 34 of IPC and against accused Nos.1 to 3 for the offence punishable under Section 3(2)(v) of SC & ST (POA) Act. Since the accused denied the charges and claimed trial, trial was conducted. In support of the case of prosecution, PWs.1 to 19 were examined and Exs.P1 to P38 and MOs.1 to 13 were marked.

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The trial Court on hearing the parties, by the impugned judgment and order, convicted accused Nos.1 and 2 for the offences punishable under Sections 302 and 376 read with Section 34 of IPC, Section 3(2)(v) of SC & ST (POA) Act and Section 6 of the POCSO Act and accused Nos.1

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to 3 for the offence punishable under Section 201 read with

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Section 34 of IPC. For the aforesaid offences, the trial Court sentenced the accused for imprisonment and fine as per the

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table below:

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Accused Nos.	Offences under Section		Sentence imprisonm	of ent	Fine amount in Rs.	Default sentenc	e
A1 & A2	302 r/w of IPC	34	RI for life		5,000/-	SI of months	6
A1 & A2	376 r/w of IPC	34	RI for life		5,000/-	SI of months	6
A1 & A2	6 of POC Act	SO	RI for life		5,000/-	SI of months	6
A1 & A2	3(2)(v) SC & (PoA) Act	of ST	RI for life		5,000/-	SI of months	6
A1 to A3	201 r/w IPC	34	RI of years	4	2,000/-	SI of months	3

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The trial Court held that since the defence Counsel did not cross-examine the witnesses, the evidence led by the prosecution regarding the overt acts of the accused stood uncontroverted. The trial Court further held that by such non-examination of the witnesses, the burden of the prosecution proving the charges was discharged. The trial Court further held that the dead body of the victim was found in the house of accused Nos.2 and 3 and they failed to rebut the presumption as required under Section 106 of the Indian

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Evidence Act, 1872 and thus convicted and sentenced the accused as aforesaid.

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The prime ground of challenge by accused Nos.1 and 2 in the above appeals is that they were not given fair trial, therefore, the judgment of conviction and order of sentence are vitiated.

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Reiterating the grounds of appeal Shri T.A.Basavaraju and Shri.M.Shashidhar learned Counsel for the appellants submit that the accused were in judicial custody and their Counsel failed to turn up. They further submit that in such circumstances, the trial Court should have proceeded to provide free legal aid as contemplated under Section 304 of Cr.P.C. and Article 39A of the Constitution of India.

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Per contra Sri Vijayakumar Majage, learned State Public Prosecutor II and Sri K Manjunatha, learned Counsel for respondent No.2 submit that the defence Counsel crossexamined PW.12 and despite giving sufficient opportunity, the other witnesses were not cross-examined. They further submit that accused did not seek any free legal aid and matters cannot be remanded for asking sake. Having regard

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to the gruesome acts of accused, appellants are not entitled

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for any leniency.

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In support of his submission, learned Counsel for respondent No.2 relies on the judgment of the Hon'ble Supreme Court in Balu Sudam Khalde v. State of Maharashtra¹ .

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On a careful consideration of submissions of both side and material on record, the question that arises for consideration is “Whether the impugned judgment of conviction and order of sentence are sustainable in law?"

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Analysis

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As already noted, accused Nos.1 and 2 were charged and tried for the commission of offences punishable under Sections 376, 302, 201 read with 34 of IPC, Section 6 of POCSO Act and Section 3(2)(v) of SC & ST (POA) Act. Accused No.3 was charged and tried for the offence punishable under Section 201 read with 34 of IPC alone.

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It is no doubt true that the victim's parents PWs.1 and 2 and other prosecution witnesses including official

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1 AIR 2023 SC 1736

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witnesses supported the prosecution case. The accused hail

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from a far off State and they were in judicial custody during trial. Admittedly, except PW.12, the defence Counsel failed to cross-examine any of the other prosecution witnesses. PW.12 was not a very material witness. He only collected the caste certificate of parties and it appears there is no dispute about the castes of the parties.

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The trial Court records show that accused Nos.1 to 3 filed an application under Section 311 of Cr.P.C. to recall PWs.1 to 18 for cross-examination and the trial Court by order dated 04.09.2018 rejected the said application.

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Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. In case of trial of a person for charge of an offence, the procedure is prescribed by the Code of Criminal Procedure, 1973. Section 304(1) of Cr.P.C, which is relevant for the purpose of this case, reads as follows:

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" 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 it appears to the

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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.

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A reading of the above provision shows that in a sessions trial, if the accused is not represented by a pleader and if 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. The word 'shall' incorporated under Section 304 of Cr.P.C. shows that it is mandatory. In addition to that, Article 39A of the Constitution, which speaks of equal justice and free legal aid, reads as follows:

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" 39A Equal justice and free legal aid.

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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."

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A reading of the above provision shows that, if a citizen is incapable of accessing legal service for justice on the ground of unaffordability or any other disability , it is the duty of the State to provide free legal aid. In the present case, the accused were in judicial custody. As per records, accused were migrant labourers. The Counsel engaged by

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them failed them. They were not in a position to reach him. That was sufficient to infer that the accused had no sufficient means to engage a pleader and they had the disability of being under incarceration. In such a case, Section 304 of Cr.P.C. comes into operation. Therefore, it was mandatory for the trial Court to provide them free legal aid through the District Legal Services Authority. By such failure of the trial Court, the accused had been convicted without effective defence or fair trial which infringes Article 21 of the Constitution of India.

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In the similar context, in para 16 of the judgment in Rajoo v. State of M.P.² the Hon'ble Supreme Court held that in the absence of the accused being provided with legal representation at the State costs, that would be violation of fundamental right of the accused under Article 21 of the Constitution of India and the trial gets vitiated on account of a fatal constitutional infirmity and the conviction and sentence are unsustainable.

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In para 13 of the said judgment, it was held that free legal service is an inalienable element of reasonable, fair

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2 (2012) 8 SCC 553

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and just procedure for a person accused of an offence and it

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must be held implicit in the guarantee of Article 21 of the Constitution of India. It was further held that such is the constitutional right of every accused person who is unable to engage a lawyer and secure free legal services on account of reasons such as poverty, indigence or incommunicado situation.

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Reading of the judgment in Balu Sudam Khalde ’s

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case referred to supra relied on by learned Counsel for respondent No.2 shows that in that case the witnesses were cross-examined. But it was alleged that better defence was not made out. Reading of the said judgment further shows that defence Counsel himself had made certain incriminating suggestions to the witnesses. Therefore in such context, it was held that remanding of the matter was not warranted. The said judgment cannot be justifiably applied to the facts of the present case.

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In the light of the above discussions, the impugned judgment and order of conviction and sentence are vitiated for violation of Section 304 of Cr.P.C. and Articles 21 and 39A of the Constitution of India. Therefore the impugned

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judgment and order are liable to be set aside and the matter

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needs to be remanded to the trial Court for fresh consideration after affording opportunity for the accused to cross-examine the witnesses in the light of the observations made above. Hence the following:

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ORDER

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The appeals are allowed.

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The impugned judgment and order of conviction and sentence are hereby set aside. The matter is remanded to the trial Court for fresh consideration.

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The trial Court shall give reasonable opportunity to the accused to cross-examine the witnesses. If the accused fail to engage the Counsel of their choice, the trial Court shall provide them free legal aid as per Section 304 of Cr.P.C for their defence and proceed with the trial. Liberty is reserved to the prosecution also to lead further evidence and to the accused to lead defence evidence if any.

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So far as accused No.3, it is submitted that he has already served the sentence and is released. If that is the case, no purpose would be served by trying him again, therefore the joint trial against him is unnecessary. However, if the trial Court finds it necessary to summon him for any

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other purposes in this case, it is open for the trial Court to

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take a decision.

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The jail authorities are hereby directed to produce accused Nos.1 and 2 before the trial Court on 20.11.2023. After such production, the trial Court shall conclude the trial as expeditiously as possible at any rate within three months from the date of such production.

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Transmit the trial Court records and the copy of this

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order to the trial Court forthwith.

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Pending IAs stood disposed of accordingly.

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Sd/JUDGE

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Sd/-

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JUDGE