Allowed

Vijay v. State of Karnataka

Karnataka HC10 Sept 2024CRL.A/824/2024

Case brief

AI extract

What is this about?

Appeal against conviction under IPC, POCSO and SC/ST (POA) Act where the accused's counsel was absent and most prosecution witnesses went uncross-examined. Holding denial of cross-examination amounted to denial of fair trial, the High Court set aside the conviction and remanded for fresh opportunity to cross-examine, with legal aid if needed.

What did the court decide?

Conviction and sentence set aside; matter remanded to trial court for opportunity to cross-examine witnesses; bail continued on fresh bonds; disposal within six months.

Vijay Vs State of Karnataka — Caste Atrocities | Karnataka HC (2024)

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

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ

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CRIMINAL APPEAL NO. 824 OF 2024

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BETWEEN:

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VIJAY S/O RAMESHA AGED ABOUT 21 YEARS (AS PER CHARGESHEET) (PRESENTLY AGED ABOUT 28 YEARS) R/AT MADHANAYAKANAHALLI MADDUR TALUK MANDYA DISTRICT-562162.

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…APPELLANT

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(BY SRI. ADARSHA H M.,ADVOCATE)

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AND:

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Digitally signed by LAKSHMI T Location: High Court of Karnataka

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STATE OF KARNATAKA MADDUR POLICE STATION REP BY SPP HIGH COURT OF KARNATAKA-560001

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VICTIM GIRL REPRESENTED BY NATURAL GUARDIAN FATHER KEMPARAJU AGED ABOUT 16 YEARS (AS PER CHARGE SHEET) NOW SHE IS AGED ABOUT 23 YEARS, R/AT MADANAYAKANAHALLI, MADDUR TALUK, MANDYA-562162.

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…RESPONDENTS

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(BY SRI. RAHUL RAI K., HCGP)

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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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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.

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

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CORAM: HON'BLE MR JUSTICE MOHAMMAD NAWAZ

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ORAL JUDGMENT

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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.

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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.

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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.

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Heard the learned counsel for appellant, learned

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High Court Government Pleader for the State and perused the material on record.

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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.

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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:

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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.

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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.

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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.

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A perusal of the evidence of the above

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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 crossexamined by the counsel as he was not present. The trial Court therefore, permitted accused No.1 himself to crossexamine the said witness.

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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.

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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:

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“25. We have come across several cases, wherein the Trial Courts during trial when the accused counsel was absent, closes the crossexamination 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.

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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.

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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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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:

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ORDER

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Criminal Appeal is Allowed.

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(i) Impugned judgment and order of conviction

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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

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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.

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(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.

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(iv) The trial Court is directed to dispose of the matter as expeditiously as possible within an outer limit of six months from the date of receipt of certified copy of this judgment.

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(v) It is made clear that this Court has not expressed any opinion on the merits of the matter.

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(vi) Since accused No.1 was on bail during trial, learned Sessions Judge shall release him on bail on such

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