Nagaraju Vs State of Karnataka

THIS CRL.A IS FILED U/S.374(2) CR.P.C PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION DATED 23.06.2022 AND ORDER OF SENTENCE DATED 30.06.2022, PASSED BY THE ADDITIONAL CITY CIVIL AND SESSIONS JUDGE FTSC-III IN SPL.C.C.NO.307/2016, CONVICTING THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 366-A,376 OF IPC AND SEC.4 AND 6 OF POCSO ACT.

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

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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The appellant/accused has preferred this appeal against the judgment of conviction and the order on sentence dated 23.06.2022 in Spl.C.C.No.307/2016 passed by the Additional City Civil and Sessions Judge - FTSC-III, Bangalore.

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For the sake of convenience, the parties herein are

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referred to as per their status and ranking before the trial Court.

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Brief facts leading to this appeal are that, the Assistant Commissioner of Police Hulimavu has submitted

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HC-KAR

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the charge sheet against the accused for the offences punishable under sections 366, 376 of Indian Penal Code and sections 4 and 6 of POCSO Act.

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It is the case of the prosecution that, the complainant CW-1 along with her husband CW-4 and her daughter victim girl CW-2 were residing at No.343, Kempamma Temple Road, Hulimavu, Bengaluru. The accused by inducing CW-2 that he is in love with her and he is going to marry her has kidnapped her on 11.04.2016 at 11.00 AM having full knowledge that CW-2 was a minor, has forcibly kidnapped her and taken her along with him to Narasimha Swamy Temple, Savanadurga, Magadi Road against her consent and married her. Thereafter, taken a room attached to the said temple on rent and kept her in the said room and continuously committed sexual intercourse with the victim girl CW-2. Thus the accused has committed the alleged offences.

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The Trial Court has framed the charges for the alleged offences under sections 366, 376 of Indian Penal Code and sections 4 and 6 of POCSO Act, 2012. Same was read over and explained to the accused. Having understood the same, the accused pleaded not guilty and claims to be tried.

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To prove the guilt of the accused, 11 witnesses were examined as PW-1 to PW-11 and 17 documents were marked as Ex.P1 to Ex.P17 and also got identified the material objects as M.O.1 to M.O.10.

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On closure of prosecution's side evidence, statement under Section 313 of Cr.P.C was recorded. The accused has totally denied the prosecuting witnesses, however, he has not chosen to lead any defense evidence on his behalf.

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Having heard the arguments on both sides, the Trial Court has convicted the accused for the offences punishable under sections 366(a) and 376 of Indian Penal Code and sections 4 and 6 of POCSO Act and passed a

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sentence of 10 years of Rigorous imprisonment with fine of Rs.5,000/- for the offence under Section 376 and 7 years of Rigorous imprisonment with fine Rs.5,000/- for the offence under Section 366(a) of Indian Penal Code and 20 years of Rigorous imprisonment with fine of Rs.5,000/- for the offences under sections 4 and 6 of POCSO Act.

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Being aggrieved by the judgment and order on sentence by the Trial Court, the appellant has preferred this appeal.

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Learned counsel for the appellant would submit that, the judgment of the Trial Court is illegal, invalid and not sustainable under law. The Trial Court has not properly appreciated the evidence on record in accordance with law. Further, he would submit that the Trial Court has not provided an opportunity to the accused to cross-examine the prosecution witnesses.

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PW-1 to 11 also not examined by the accused. It is submitted that the recall application was also filed on

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HC-KAR

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behalf of the accused under Section 311 of Cr.P.C to recall

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PW-1 to PW-3 for the purpose of cross-examination. After recording the statement under Section 311 of Cr.P.C., the application was allowed by the Trial Court on 16.03.2022

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with cost of Rs.2,000/- and the case was posted to 30.03.2022 and on that day, accused was unable to pay the fine amount. Therefore, the Trial Court has not provided an opportunity to cross-examine PW-1 to 11 and passed the impugned judgment which is not sustainable under law. On all these grounds, he sought for remanding the case with a direction to the Trial Court to provide an opportunity to the accused to cross-examine all the prosecution witnesses and sought to allow this appeal.

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Learned counsel for the victim would submit that the

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Trial Court has provided an opportunity to the accused however, the accused has not cross-examined the prosecution witnesses and there are no grounds to remand the case to the Trial Court. Hence, she sought for dismissal of the appeal.

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HC-KAR

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Learned High Court Government Pleader

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Sri B.Lakshman has fairly submitted that the matter may be remanded to the Trial Court to provide an opportunity to the appellant/accused for cross-examination of the

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prosecution witnesses.

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Having heard the arguments, the points that would arise for my consideration are as under:

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i) Whether the appellant/accused has made out a ground to remand the matter to the Trial Court for providing an opportunity to the accused for cross-examination of the prosecution witnesses?

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ii) What order?

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My answer to the above points as under:

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i) Affirmative.

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ii) As per final order.

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HC-KAR

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Regarding Point No.1

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I have examined the materials placed before this Court. The prove the guilt of the accused, the prosecution has examined 11 witnesses as PW-1 to 11. The Trial Court has recorded the evidence of victim on 06.02.2018 and 07.03.2019. The examination in chief of PW-1 was closed on 07.03.2019.

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On 07.03.2019, the trial Court has recorded that the accused counsel seeks time for cross-examination. Accordingly, case was posted to 16.04.2019. That on 16.04.2019 PW1 and PW2 are absent. Hence, summons was issued to PW1 and PW2 and on that day case was posted to 10.06.2019 and on 10.06.2019 accused was present and witnesses were absent. But subsequently, on the same day accused present before the Court and learned counsel for the accused was absent. Hence, crossexamination of PW2 was taken as nil and then summons was issued to CW3 to CW7 and case was posted to 11.07.2019 and that on 11.07.2019 the counsel for the

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accused was absent. Hence, the cross-examination of PW1

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was taken as nil and she stood discharged 29.08.2019. That on 29.08.2019 accused was absent and CW3 and CW4 are present and they were directed to be present, on

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the date of hearing NBW was issued to the accused. Hence, the case was posted to 30.09.2019. That on 30.09.2019, application was filed under Section 70(2) of Cr.P.C to recall the warrant issued against the accused. The same was allowed.

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On perusal of the subsequent date of hearings on the order sheet, it reveals that the trial Court has recorded the statement of witnesses in the absence of accused counsel. Even the trial Court has not offered the accused for crossexamination of the prosecution witnesses. When the accused has appeared through his counsel, it is the duty of the counsel to prosecute the case. When the advocate has failed to prosecute the case, the trial Court ought to have intimate the same to the accused. If the accused is unable to engage another counsel, the trial Court ought to have

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engage the counsel through the Legal Service Authority or appoint a Penal Standing Counsel to prosecute this case. The trial Court has not intimate the accused to engage another counsel. The trial Court has also not appoint any standing counsel for the accused to prosecute the case.

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The accused has failed to pay the costs of Rs.2,000/imposed while allowing the application under Section 311 of Cr.P.C. The trial Court would have pass a suitable order to pay the costs by the concerned legal services authority. Instead of that only for non payment of Rs.2,000/- the trial Court has not provided an opportunity to the accused to cross-examine the prosecution witnesses, which is unconstitutional and also contrary to the provision of Article 20 and 21 of the Constitution of India.

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On perusal of the proceedings, which reflects on the order sheet reveals that the trial Court has not conducted fair trial in a heinous offence under the provisions of POCSO Act and also provisions of IPC.

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Viewed from any angle, the impugned judgment of conviction and order on sentence passed by the trial Court is not sustainable under law. Accordingly, the appellant has made out a grounds to remand the case to the trial Court. Accordingly, I answered Point No.1 in the Affirmative.

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Regarding Point No.2:

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For the foregoing reasons and discussions, I proceed to pass the following:

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O R D E R

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i) Appeal is partly allowed .

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ii) The judgment of conviction and order on

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sentence passed by the Additional City Civil and Sessions Judge, FTSC-III, Bengaluru in Spl.C.C.No.307/2016 dated 23.06.2022 is set aside.

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iii) The case is remitted back to the trial Court with a direction to provide an opportunity to the accused to

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cross-examine PW-1 to PW-11 and further cross-

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examination of PW-12, if any.

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iv) It is made clear that, the accused need not pay any costs imposed by the trial Court. If the accused is unable to appear through his counsel, the trial Court is directed to appoint the standing counsel or defence counsel appointed by the District Legal Service Authority.

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v) The accused was released on bail as per the order dated 07.09.2016. After pronouncing of the judgment, the trial Court has remanded the accused to the judicial custody from 23.06.2022, till this day, accused is

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in judicial custody. Since this Court has set aside the judgment of conviction and order on sentence, it is just and proper to release the accused on bail. Accordingly, the accused shall be released on bail, subject to following conditions:

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