IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 29TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL APPEAL No.177 of 2019 BETWEEN SRIDHARA, S/O. RAJANNA, AGED ABOUT 27 YEARS, RESIDING AT BIDALURU VILLAGE, THYAMAGONDLU HOBLI, NELAMANGALA TALUK – 562 123.
(BY SRI N.PADMAVATHI, ADVOCATE) ... APPELLANT AND STATE BY NELAMANGALA RURAL POLICE STATION, NELAMANGALA TALUK – 562 123, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE – 560 001.
... RESPONDENT (BY SRI K.P. YOGANNA, HCGP) THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) CR.P.C PRAYING TO SET ASIDE THE ORDER OF CONVICTION DATED 19.01.2019, PASSED BY THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BANGALORE RURAL DISTRICT AT BANGALORE, IN S.C.No.79/2015, CONVICTING APPELLANT/ACCUSED FOR THE OFFENCES PUNISHABLE UNDER SECTIONS 498A AND 304B OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING JUDGMENT Heard learned counsel for the appellant on I.A.No.1/2019 for suspension of sentence passed by the Court below.
2. The appellant is the sole accused in SC No.79/2015 on the file of the VIII Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru. The accused has been convicted and sentenced to undergo simple imprisonment for three years and to pay fine of Rs.5,000/- in default, to undergo simple imprisonment for nine months for the offence punishable under Section 498A of IPC and to undergo simple imprisonment for seven years for the offence under Section 304B of IPC vide judgment dated 19.01.2019.
3 Learned counsel for the appellant/accused contended that the Trial Court convicted and sentenced the appellant for the aforesaid offence without affording sufficient opportunity to the appellant for cross-examination of the prosecution witnesses, though 8 witnesses have been examined by the prosecution. Learned counsel for the appellant was not present before the Trial Court on one date and on the basis of the examination-in-chief, the Trial Court held that the appellant was guilty of the offence and convicted him. The appellant and the deceased were married two years prior to the incident, which is a love marriage. Both of them left the house and were residing separately. The deceased Sunanda died due to hanging, on 19.12.2014. Even the Doctor who conducted the autopsy was not examined. The Trial Court went on passing the order giving reasons for finding the accused guilty of the offence only on the basis of the examination- in-chief, which is not correct. The appellant is entitled for fair trial, which is guaranteed under the Constitution, but no opportunity was given. Therefore, pending consideration of the appeal, learned counsel for the appellant prayed for suspension of sentence.
4. Per contra, learned High Court Government Pleader argued that the evidence of PW.2-Hanumantharaju, the brother of the victim, has supported the case of the prosecution. Opportunity was given to the appellant to cross-examine, but the learned counsel who appeared on behalf of the appellant has not cross-examined the witnesses. The version of PWs.1 to 3 corroborates with each other. Therefore, there is no legal infirmity in the order of conviction and sentence passed by the Trial Court. Hence, prayed for dismissal of the appeal.
5. Upon hearing the arguments of learned counsel on both sides and on perusal of the evidence on the record, it goes to show that learned counsel for the appellant/accused remained absent after the examination of prosecution witnesses. Some advocate had requested the Court for an adjournment on behalf of the accused on the ground that the advocate on record was not in station and the Trial Court has rejected the said request and has taken the cross-examination as ‘nil’. It is also mentioned that the accused is not ready to cross-examine the witnesses and hence, the evidence of the witnesses is closed. Though PWs.5 and 6 were examined by the prosecution, who are said to be the mother and relative of the deceased respectively, they were not present and failed to tender themselves for cross-examination. Hence, their evidence was expunged from the record. Therefore, the Trial Court observed that the counsel for the accused has not examined and no cross-examination was done. Hence, the case came to be closed.
6. It is well settled in a catena of decisions of the Hon’ble Apex Court that right of fair trial to the accused is the fundamental right guaranteed under Article 21 of the Constitution of India. In the case of K. Anbazhagan vs. Superintendent of Police reported in AIR 2004 SC 524, the Hon’ble Apex Court has held as under;
“ Free and fair trial is sine qua non of Article 21 of the Constitution. It is trite law that justice should not only be done, but should be seen to have been done. If the criminal trial is not free and fair and not free from bias; judicial fairness and the criminal justice would be at stake shaking the confidence of the public in the system and woe would be the rule of law.”
7. In view of the principle laid down by the Hon’ble Apex Court, giving an opportunity to the accused regarding cross-examination of the prosecution witnesses is not a mere formality for disposal of the case for statistical purpose, but to find out the truth and it is the bounden duty of the Trial Court to render justice and the fair trial is the fundamental right guaranteed under Article 21 of the Constitution.
8. On perusal of the impugned judgment of the Trial Court, it is clear that there is violation of the fundamental right of accused guaranteed under Article 21 of the Constitution of India and also against the principle laid down by the Hon’ble Apex Court in the case stated supra. Apart from that, the District Legal Services Authorities are also established for the purpose of providing free legal aid to the accused persons, who are unable to engage the counsel of their own choice and at their expenses as per Section 304 of Cr.P.C. If at all the counsel for the accused is not present for cross-examination of the witnesses, the Trial Court ought to have appointed any Standing Counsel or amicus curiae through the District Legal Services Authority for cross-examination of the prosecution witnesses, but the order sheet shows that nowhere such an opportunity was offered by the Trial Court to the accused before closing the case for the purpose of passing the judgment. The Trial Court has also recorded in its judgment that the accused has not chosen to cross- examine the prosecution witnesses. No doubt, it is mandatory under Section 309 of Cr.P.C. that the Court shall not give adjournment, when the examination-in-chief is conducted by the prosecution. Nevertheless, the object of the right conferred on the citizen, especially for the accused in the criminal case, the right of fair trial has to be made available to the accused through legal aid under Section 304 of Cr.P.C., which mandates the Court to provide legal aid.
9. On perusal of the evidence on record, the Trial Court, except stating that the counsel is absent, has not chosen to cross-examine and denied the adjournment for cross-examination, but went on passing the judgment of conviction without giving proper opportunity either under law or in the interest of natural justice. Therefore, without expressing any opinion in respect of the merits of the case and the evidence adduced by the prosecution before the Trial Court, the judgment of conviction and sentence passed by the Trial Court is held as illegal and against the fundamental rights guaranteed under Article 21 of the Constitution of India to safeguard the interest of the accused persons who face trial in criminal cases. Therefore, in my considered opinion, the judgment of conviction and sentence passed by the Trial Court is liable to be set aside and the matter requires to be remitted back to the Trial Court for fresh consideration after giving an opportunity to the accused to cross-examine the prosecution witnesses. Accordingly, I pass the following order.
Order The appeal filed by the appellant/accused is allowed.
The judgment of conviction and sentence passed by the VIII Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, in S.C.No.79/2015, dated 19.01.2019 is hereby set aside;
(ii) The matter is remitted back to the Court below for fresh consideration with a direction to give opportunity to the accused to cross-examine the prosecution witnesses and also issue notice to PWs.5 and 6 to afford an opportunity for the purpose of cross-examination and in the interest of justice;
(iii) The accused/appellant shall not seek any unnecessary adjournments in the matter before the Trial Court;
(iv) Heard learned counsel for the appellant and learned High Court Government Pleader on I.A.No.1/2019.
In view of disposal of the main appeal by setting aside the judgment of conviction and the order of sentence passed by the Court below, the appellant/accused is ordered to be released on bail on executing a personal bond for a sum of Rs.50,000/- with a surety for the likesum to the satisfaction of the Court below.
Accordingly, I.A.No.1/2019 is disposed off. Send back the LCR to the Court below.
SD/- JUDGE mv