IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A. PATIL CRIMINAL APPEAL NO.257 OF 2019 C/W CRIMINAL APPEAL NO.21 OF 2019 Crl.A.No.257 OF 2019 BETWEEN:
Anil Kumar S/o Late Chandrashekar, Aged about 21 years, R/at Church Road, Kalen Agrahara, Bannerghatta Road, Bengaluru-56 076.
...Appellant (By Sri. Mohan Kumar. D for Smt. Rattihalli Geetha Veeranna, Advocate) AND:
State of Karnataka by HSR Layout Police Station, Bengaluru-560 102 Represented by SPP, High Court Building, Bengaluru-560 001.
(By Sri. M. Divakar Maddur - HCGP).
...Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to set aside the judgment and order of conviction and sentence dated 02.11.2018 passed by the learned LIII Additional City Civil and Sessions Judge (CCH-54), Bengaluru, in S.C.No.506/2015 – convicting the appellant/accused No.2 for the offence punishable under Section 392, 297, 242, 376D, 506(2) of IPC.
Crl.A.No.21 OF 2019 BETWEEN:
Symen Son of Late Chinnappa Aged about 23 years, R/at No.183, 1st Cross, Church Road, Kalena Agrahara, Bannerghatta Road, Bengaluru-560 076.
(By Smt. Gnaneshwari M, Advocate) AND:
State of Karnataka by HSR Layout Police Station, Bengaluru-560 102 Represented by State Public Prosecutor, High Court of Karnataka, Bengaluru-560 001.
(By Sri. M. Divakar Maddur - HCGP).
...Appellant ...Respondent This Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to set aside the judgment and order of conviction and sentence dated 02.11.2018 passed by the learned LIII Additional City Civil and Sessions Judge, Bengaluru, in S.C.No.1265/2015 – convicting the appellant/accused No.1 for the offence punishable under Section 392, 297, 242, 376D, 506(2) of IPC.
These Criminal Appeals coming on for Admission, this day, the Court delivered the following:
J U D G M E N T The Criminal Appeal No.257 of 2019, has been preferred by appellant-accused No.2 and the Criminal Appeal No.21 of 2019, has been preferred by appellant- accused No.4, challenging the common judgment passed by LIII Additional City Civil and Sessions Judge, Bengaluru, in judgment of conviction and order of sentence in S.C.No.506/2015 and S.C.No.1265/2015 dated 02.11.2018 respectively.
2. I have heard the learned counsel for the appellant and learned HCGP for respondent-State.
3. The case of the prosecution in brief is that, husband of the victim filed the complaint alleging that on 24.10.2014, the husband of the victim returned home at about 9.00 p.m and after dinner they were sleeping in the home along with his wife, mother and male child aged about nine months. At about 11.40 P.M, the complainant’s mother woke up the complainant, telling that some friends are knocking the door. When he woke up, he heard that some persons saying that they are police people and asked him to open the door. When he opened the door, suddenly four persons entered his house telling that CW-1 is selling beer bottles and asked him to hand over the almerah/cupboard key and also asked him to show his almerah/cupboard, said four persons by collecting the key from him pointed knife towards CW-1 and also assaulted with knife on his forehead, tied himself, his wife and mother’s hands. By opening the almerah/cupboard took the gold ornaments, cash of Rs.30,000/- and three mobile phones. Thereafter, out of four persons, three persons took his wife to the hall of his house and among four persons, three persons committed rape on his wife and another person was recording the said activity in his mobile. It is further alleged that all the persons while going out latched the main door. Later through window they called the neighbors who in turn opened the main door and thereafter, a complaint was registered and the statement of the victim was recorded under Section 164 of Cr.P.C.
4. On the basis of the said complaint, after investigation, charge sheet was filed. The Sessions Court took the cognizance and accused No.4 was absconding. The absconded charge sheet has been filed. Subsequently, he was traced and he was also tried in S.C.No.1265/2015. Thereafter, after hearing the learned counsel appearing for the parties, the charge was read over and explained to accused Nos.2 and 4 and accused plead not guilty. Thereafter, trial was fixed. The prosecution in order to prove its case, got examined 20 witnesses, 38 documents and 30 material objects and after closure of the evidence, the statement of the accused was recorded by placing the incriminating materials as against them. They have denied the incriminating evidence and they have not led any evidence on their behalf. The impugned judgment and conviction of order of sentence came to be passed.
5. It is the submission of the learned counsel appearing for the parties that the Court below without giving any opportunity to cross-examine the witnesses has hurriedly disposed off the case without applying the principles of natural justice. In the absence of such cross examination, prejudice has been caused. It is his further submission that even if the entire evidence as it is read, that there are major contradictions from the statement of witnesses and evidence. Hence, he further submitted that the Court below has wrongly passed an order by convicting the accused by not giving any opportunity. On these grounds, they prayed to allow the appeal and set aside the impugned order.
6. Per contra, the learned HCGP fairly conceded that the Court below has not given any opportunity to cross-examine the material witnesses. However, he submitted that when the witnesses were examined and the Court below asked them to cross-examine the witnesses but the learned counsel appearing for the parties have requested to adjourn the case, but the Court below just passed an order after recording the same and taken the cross examination as nil and thereafter, proceeded the matter. They have not filed application to recall the witnesses. Under such circumstances, the contentions of the appellant-accused does not survive for consideration and he prays to dismiss the appeal.
7. I have carefully and cautiously gone through the appeal. The learned counsel appearing for appellant has made available the certified copy of the depositions, which is recorded by the Court below. Without expressing anything on the merits, though several grounds have been urged Witnesses No.1 and 2 have been partly cross-examined and three and four and other witnesses have not been cross-examined and insofar as accused No.4 they have not cross-examined any of the witnesses. The endorsement made by the Court below that the learned counsel for the accused Nos.1 and 2 have requested for time, but the Court below has observed that this Court has directed to expedite the trial and as such, there is no question of giving any time and as such, the cross examination has been taken as nil. Though this Court might have directed to expedite the trial, but that does not mean that the Court below has to proceed hurriedly without giving any opportunity to the accused for cross- examination and dispose off the case.
8. If the learned counsel has not proceeded with the cross-examination, then under such circumstances, the court below ought to have engaged a counsel through the Legal Service Authority and could have requested to proceed with the matter for cross- examination or else it could have appointed an Amicus Curiae representing the accused. When the accused persons were present and evidence has been recorded and even when the counsel requested to adjourn the case, the Court could have adjourned the case for one or two days and given an opportunity to the learned counsel appearing on behalf of the accused to cross- examine the witnesses. If no cross-examination has been done, in such circumstances, I feel that it is going to affect the principles of natural justice. It is well settled proposition of law that no man can be convicted unheard without giving opportunity. In that light, I feel that opportunity has to be given to the accused Nos.2 and 4 as well as remaining accused persons to ascertain the truth and come to appropriate conclusion.
9. In that light, the judgment of conviction and order of sentence passed by LIII Additional City Civil and Sessions Judge, Bengaluru, in S.C.No.506/2015 and S.C.No.1265/2015 dated 02.11.2018 are set aside and the matters are remanded back to the Court below with a direction to give full opportunity to the accused to cross-examine all the witnesses and thereafter, an appropriate order has to be passed in this behalf. Further, the Court below is directed to expedite the trial preferably within a period of five months from the date of receipt of this order.
In view of the disposal off the main appeal, IA.No.2/2019 does not survive for consideration. Accordingly, the same is disposed off.
Sd/- JUDGE ag