IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE B.A.PATIL CRIMINAL REVISION PETITION NO.904/2015 BETWEEN :
Sri T.Venkataraju @ Rajashekar S/o Thimmaiah Aged about 47 years R/at Devacharakanahalli Bannerghatta Road, Bengaluru-560 083.
… Petitioner (By Smt. Rattihalli Geetha Veeranna, Advocate) AND :
The State of Karnataka by Rajajinagar Police Station Bengaluru-560 010 Represented by State Public Prosecutor High Court of Karnataka Bengaluru-560 001.
(By Sri K.Nageshwarappa, HCGP) … Respondent This Criminal Revision Petition is filed under Section 397 r/w 401 of Cr.P.C praying to set aside the impugned judgment and sentence dated 09.09.2005 passed by the VII ACMM, Bengaluru City, in C.C.No.16921/1999 and also the judgment confirmed the sentence dated 24.03.2010 passed by the Presiding Officer, Fast Track Court-IX, Bengaluru City in Criminal Appeal No.1309/2005 This Criminal Revision Petition coming on for Admission this day, the Court made the following:-
O R D E R The present petition is filed by the accused challenging the judgment passed in Criminal Appeal No.1309/2005, dated 24.3.2010 passed by the Presiding Officer, Fast Track Court-IX, Bengaluru, whereunder the judgment and order of conviction and sentence passed by the VII Additional CMM Court, Bengaluru in CC.No.16921/1999, dated 9.9.2005 was confirmed.
2. I have heard the learned counsel for the petitioner-accused and the learned HCGP for the respondent-State.
3. Brief case of the prosecution as per the complaint is that on 27.8.1999 at about 10.30 a.m., CW.1-Smt.Sujatha, the complainant along with her friend CW.2-Smt.Uma was returning from Raghavendra Mutt in Rajajinagar to go to the house of the complainant. Accused came from her behind and snatched gold chain from her neck. Immediately CW.2 made hue and cry and due to which public gathered there and caught hold of the accused red handed and later the accused handed over to Hoysala police, who in turn arrested the accused and recovered piece of gold chain from his possession. On the basis of the complaint, a case came to be registered in Crime No.325/1999 and after completion of investigation, charge sheet was laid against the accused for the offence punishable under Section 392 of IPC. The trial Court took cognizance and after following the formalities, recorded the charge, accused pleaded not guilty and claimed to be tried. As such, the trial was fixed.
4. In order to prove its case, the prosecution has examined seven witnesses as PWs.1 to 7 and got marked four documents as Exs.P1 to P4 and one Material Object.
But the said witnesses have not been cross-examined and therefore an application under Section 311 of Cr.P.C. was filed to recall the witnesses to cross-examine them. Though the said application was allowed, learned counsel for the accused did not cross-examine them. After closure of the evidence, statement of the accused under Section 313 of Cr.P.C. was recorded and thereafter the accused was convicted and sentenced for the offence punishable under Section 392 of IPC. Against the said judgment and order of conviction and sentence, he preferred an appeal before the Fast Track Court, Bengaluru, which also came to be dismissed by the Fast Track Court, confirming the judgment and order of the trial Court. Assailing the same, the accused is before this Court.
5. It is the submission of the learned counsel for the petitioner-accused that the counsel who was appearing on behalf of the accused before the trial Court has remained absent and he did not cross-examine the prosecution witnesses and as such the trial Court took the cross-examination as nil. The trial Court has not given full opportunity to the accused to cross-examine the witnesses and thereby the accused is deprived of an opportunity of cross-examining the witnesses and there is a violation of principles of natural justice. If the learned counsel for the accused has remained absent and has not cross-examined the witnesses, the trial Court ought to have appointed either an amicus curiae or a counsel from the Legal Services Authority to cross- examine the witnesses. Instead of doing so, the trial Court by relying on the evidence of the said witnesses has wrongly convicted the accused. On these grounds, she prayed to remand the matter back to the trial Court. It is her further submission that there is inconsistency in the timings of the alleged incident in the complaint and in the evidence of the complainant. In the complaint, the complainant has alleged that the incident has taken place at about 10.30 a.m., but in her evidence she has deposed that the alleged incident has taken place at about 12.30 p.m. It is her further submission that as to who actually informed about the alleged incident to PW.7 who was working in Hoysala Jeep is not forthcoming in the evidence. Even though the said evidence is not available, the trial Court has wrongly convicted the accused. On these grounds, she prayed to allow the petition. Alternatively she also prayed to remand the matter back to the trial Court to give an opportunity to the petitioner-accused.
6. Per contra, the learned HCGP has vehemently argued and submitted that PW.1, the complainant and her friend PW.2 have fully supported the case of the prosecution. PW.3 is also an eye witness to the incident in question, who apprehended the accused immediately after hearing the hue and cry. PW.7 who was working in Hoysala Jeep came and took the accused and immediately thereafter piece of gold chain has been recovered from the accused. All these materials would clearly go to show that the petitioner-accused has committed the alleged incident and on consideration of the material on record, the trial Court has rightly convicted the accused. It is his further submission that though sufficient opportunity was given to the accused and his counsel to cross-examine the witnesses, they have not cross-examined them. An application also came to be filed under Section 311 of Cr.P.C. to recall the material witnesses in order to cross-examine them which was allowed by the trial Court. But the said opportunity has not been utilized by the accused by cross-examining the witnesses. Therefore, the trial Court without there being any alternative, has proceeded further and passed the impugned judgment and order. It is his further submission that at this stage if the matter is remanded back to the trial Court to give an opportunity to the accused to cross-examine the witnesses, as the matter is of the year 1999 and whereabouts of the witnesses are not known and as to whether they are alive or not is difficult task to secure them for the purpose of cross-examination. On these grounds, he prayed to dismiss the petition.
7. I have carefully and cautiously gone through the submissions made by the learned counsel for the parties and perused the records. On close reading of the contents of the complaint and other material on record, PW.1 is the complainant who has deposed that on 27.8.1999 she along with her friend PW.2-Uma was on the way to her house from Raghavendra Mutt and when they came near the house in 3rd Block, Rajajinagar accused came behind her and snatched the gold chain from her neck. Immediately they made hue and cry, due to which, public gathered and PW.4 caught hold of the accused. Thereafter, PW.7 working in Hoysala Jeep apprehended the accused and recovered piece of gold chain from his possession. Thereafter, the complainant lodged the complaint as per Ex.P1. PW.1-complainant has also identified the accused before the Court. PW.2 has reiterated the evidence of PW.1. PW.3 is a person, who was also present on the spot when the alleged incident has taken place. PW.4 is the person who after hearing hue and cry of the complainant and PW.2, caught hold of the accused and immediately informed to Hoysala police. The evidence of all these witnesses fortifies the fact that the accused snatched the gold chain from the neck of the complainant-PW.1 and the same was recovered from the possession of the accused. The said chain was seized by drawing a mahazar at Ex.P2. Even PW.6 the panch witness to the said mahazar at Ex.P2 has also supported the case of the prosecution. The entire evidence of these witnesses clearly goes to show that there is corroboration there are no good grounds to discard the evidence of these witnesses. Though it is contended by the learned counsel for the petitioner that there are contradictions about the timings of the alleged incident in the complaint as well as in the evidence of PW.1-complainant, they are all minor contradictions.
Even the witnesses have not been cross-examined by the accused so as to confront the said contradictions. Under such circumstances, the said contention taken up by the learned counsel for the petitioner-accused cannot be accepted in law.
8. The second contention which has been raised by the learned counsel for the accused is that the accused has not been given any opportunity to cross-examine the witnesses and as the said witnesses having not been cross-examined, there is a violation of principles of natural justice. Therefore, she contended that the matter requires to be remanded back to the trial Court.
9. As could be seen from the records, earlier the learned counsel for the accused has not cross-examined the witnesses and thereafter an application under Section 311 of Cr.P.C. came to be filed which was also allowed by the trial Court to recall the witnesses for cross- examination. However, in spite of giving such an opportunity, the learned counsel appearing for the accused has not cross-examined the said witnesses. Under such circumstances, it cannot be said that the accused has been deprived of an opportunity. Though it is contended by the learned counsel for the petitioner that the trial Court ought to have either engaged a counsel from the Legal Services Authority or an amicus curiae to conduct the case, when the accused was already represented by a counsel, who appeared on his behalf and filed an application under Section 311 of Cr.P.C. which came to be allowed by the trial Court and subsequently the learned counsel appearing for the accused has remained absent, then under such circumstances the hands of the trial Court were tied and therefore it has proceeded further and passed the impugned judgment and order of conviction and sentence. No doubt an opportunity has not been given to the accused to cross-examine the witnesses and no counsel has been appointed from the Legal Services Authority. Though I am of the opinion that an opportunity has to be given, however at this juncture, if the matter is remanded back to the trial Court to give an opportunity to the accused to cross-examine the witnesses, it is very difficult for the prosecution to secure the said witnesses after 20 years of the alleged incident. Whether the said witnesses are alive or not is also a question which has to be answered by the prosecution. The records would go to show that the accused was apprehended on 11.3.1999 and thereafter an application was filed praying to enlarge him on bail and on 20.9.1999 he has been enlarged on bail. Under such circumstances, if the accused is convicted and sentenced for the offence punishable under Section 392 of Cr.P.C. to the extent of the period which he has already undergone as an under trial prisoner and is given set off, it would meet the ends of justice.
Accordingly, the following order:-
The judgment of conviction passed by the VII Additional CMM Court, Bengaluru in CC.No.16921/1999, dated 9.9.2005 is confirmed and the order of sentence imposed on the accused-petitioner herein is modified to the extent of the period which he has already undergone as an under trial prisoner and is given set off under Section 428 of Cr.P.C. But however, the imposition of fine amount on accused-petitioner by the trial Court is remained unaltered. In other words, the accused- petitioner herein shall pay the fine amount as imposed by the trial Court within four weeks from today, if not already paid.
With the aforesaid observations and the modification of the impugned order of sentence passed by the trial Court, the present petition is disposed of.
Sd/- JUDGE *ck/-