IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2019 PRESENT :
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA AND THE HON’BLE DR.JUSTICE H.B. PRABHAKARA SASTRY CRIMINAL APPEAL No.1007/2013 BETWEEN:
Tharun S/o Gopal, Aged about 24 years, R/at Arilova Village, Vishakapattanam, Andhra Pradesh. …Appellant (By Sri. H.E. Basavaraju, Advocate) AND:
State by kadugodi Police Station, Bangalore . …Respondent (By Sri. I.S. Pramod Chandra, State Public Prosecutor-II) This Criminal Appeal is filed under Section 374(2) of Cr.P.C praying to set aside the order dated 26/28.08.2013 passed by the I Addl. District and Sessions Judge, Bangalore Rural District, Bangalore , in S.C.No.321/2012 – convicting the appellant/accused for the offence P/U/S 302 of IPC and the appellant/accused is sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.50,000/-. In default to pay fine he shall further undergo rigorous imprisonment for a period of five more years for the offence P/U/S 302 of IPC.
This Criminal Appeal coming on for Final Hearing this day, K.N. PHANEENDRA, J., delivered the following:
J U D G M E N T The appellant, who is the sole accused before the trial Court in S.C.No.321/2012, called in question the judgment of conviction and sentence passed by the I Additional District and Sessions Judge, Bangalore Rural District, Bangalore (hereinafter for brevity referred to as the ‘trial Court’), wherein the trial Court has convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code, 1860 (hereinafter for brevity referred to as ‘IPC’), sentencing him to undergo rigorous imprisonment for life and to pay fine of `50,000/- and in default of payment of fine he shall further undergo imprisonment for five more years.
2. Though the learned counsel for the appellant has tried to argue the matter praying for acquittal of the accused on the basis of evidence on record, but ultimately, learned counsel for the appellant submitted that, prime witnesses to the prosecution have not been subjected to cross-examination, as the trial Court has not afforded sufficient opportunity to the appellant to cross- examine the witnesses. Therefore, learned counsel submitted that it is a fit case for remand to the trial Court, with a specific direction to the trial Court to provide opportunity to the appellant to cross-examine the witnesses, who are actually not cross-examined and if necessary to call the other witnesses for cross- examination after the examination of the Investigating Officer in the case.
3. Learned State Public Prosecutor-II also in fact has not much disputed the above said aspect of the trial Court not providing sufficient opportunity to the appellant to cross-examine the star witnesses to the prosecution.
In this background, there is no need for this Court to go into the merits of the case.
4. However, as could be seen from the records, it is the case of the prosecution that, the accused and the deceased by name Salim were working together under PW.8 – Krishna Reddy. It is the further case of the prosecution that, on 08.07.2012, on a Sunday, the accused, deceased and others have consumed alcohol and in fact, the accused and the deceased had been to take bath in a tank. It is alleged further that the accused knowing fully well that the deceased was not knowing swimming, inspite of that he pushed the said person into the tank and repeatedly he did not allow the said person to come out of the tank. Due to the act of the accused, said Salim drowned in the water in the tank by name Sadaramangala tank.
5. On these allegations, Police have investigated the matter and submitted a charge sheet against the appellant for the offence punishable under Section 302 of IPC.
6. The prosecution in fact, examined as many as 10 witnesses as PWs.1 to 10, got marked documents as Exs.P-1 to 14 and also got marked material objects as MOs.1 to 8. The accused was also examined under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter for brevity referred to as ‘Cr.P.C.).
7. As could be seen from the records and also the evidence of prosecution witnesses the prime witness i.e., PW.1 (eye witness) has not been cross-examined and it is noted in the deposition of the witness that, on the date of examination of the said witness time was sought by the learned counsel for the defence, but the same was rejected, as there was no ground to grant time. Like wise, many of the witnesses i.e., PWs.2 to 5 were also not cross-examined and similar reason has been given by the Sessions Judge. Though some of the other witnesses were cross-examined, however, PW.1 is the prime witness who is an eye witness to the incident has not been cross-examined.
8. In this background, we have also carefully bestowed out attention so far as the order sheet of the trial Court is concerned. It is seen that on 21.06.2013, in pursuance to the summons issued, CWs.1, 5 and 6 present and were examined as PWs.1 to 3 and documents Exs.P-1 & 2 were marked. The Advocate for the accused filed an application under Section 231(2) read with Section 309 Cr.P.C. and the Public Prosecutor has orally opposed the said application and on the same day, non-bailable warrant was issued to CW.1 and again the case was posted for further evidence. On 24.06.2013, non-bailable warrant was issued to CW.2, non-bailable warrant was re-issued to CWs.7 to 12 and also issued summons to CW.14. On 05.07.2013, the accused was produced from judicial custody and CWs.7 and 14 were examined as PWs.4 and 5 and documents as Exs.P-4 to 7 were marked and material objects at MOs.3 and 4 were also marked. In the meantime, it appears that on 21.06.2013 itself, the application filed by the appellant under Section 231(2) of Cr.P.C. was rejected.
9. Be that as it may, subsequently, the accused was also produced on 17.07.2013 and the Court examined CW.20, the Medical Officer as PW.6, CW.18 was examined as PW.7 and documents Exs.P-8 to 12 and material objects MOs.5 to 8 were marked and on that day non-bailable warrant was re-issued to CWs.2, 11, 12 and 19. Thereafter, on 29.07.2013, CWs.11 and 12 were examined as PWs.8 and 9, documents as Exs.P-13 and 14 were marked and the prayer for issuing non-bailable warrant to PW.2 was however rejected by the trial Court.
On 02.08.2013, the accused was produced and CW.19 was examined as PW.10 and the case proceeded further for recording the statement of the accused under Section 313 of Cr.P.C. On 07.08.2013, the counsel for the accused had filed an application under Section 311 of Cr.P.C. and after objections being raised by the learned Public Prosecutor, the said application was also rejected vide order dated 16.08.2013. Therefore, it goes without saying that there was no opportunity to the accused to cross-examine the witnesses, particularly when the accused has been in judicial custody.
10. The trial Court should have taken into consideration the purpose and object of providing sufficient opportunity to the accused to cross-examine the witnesses. The Courts must always look into the gravity of the offence alleged against the accused and what would be the appropriate opportunity that should be given in such cases. The consequences of not providing the opportunity is nothing but sending the accused behind the gallows accepting the uncontroverted testimony of the witnesses, which may amounts for violation of principles of natural justice. Therefore, in this context, the trial Court ought to have looked into the circumstances, that for any reason the learned counsel for the accused did not want to cross-examine the witnesses and if the Court comes to such conclusion that, it is the deliberate action on the part of the learned counsel and for that reason the accused should not be penalized and opportunity should have to be given either to engage another counsel or the Court itself could have appointed an amicus curiae for the purpose of helping the accused, particularly when the accused is in judicial custody, which in fact has not been taken into consideration by the trial Court. Therefore, the rejection of the application on the same day on which some of the witnesses have been examined, in our opinion is not proper and correct.
11. In this context, we would like to refer a decision of the Hon’ble Apex Court in the case of Rajaram Yadav Vs. State of Bihar reported in AIR 2013 SC 3081. The Court while dealing with Section 311 of Cr.P.C., has laid down various guidelines in the said case. Some of the guidelines are infact referable to the right of the accused 12. At guideline No.(b), the Court has observed that, “(b) The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate inconclusive speculative presentation of facts, as thereby the ends of justice would be defeated” .
In guideline No.(j) and (k), the Hon’ble Apex Court has further observed that “(j) Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistake to be rectified.
(k) The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.”
At guideline No.(n) it is further observed that, “(n) The power under Section 311 CrPC must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right.”
13. If the above principles laid down are applied to the facts of the present case, in our opinion, the trial Court has not taken into consideration the over all facts and circumstances of the case while refusing to grant the opportunity to the accused. It has observed that the witnesses are from far away place i.e., from Vishakapatnam and securing them is very difficult. For this our answer is, the order sheet of the trial Court discloses that immediately after issuance of summons after framing charges on 28.05.2013, in pursuance of the summons issued, without there being any delay, prime witnesses have appeared before the Court. Therefore, there is no material on record to show that summons were avoided by the witnesses and it has become very difficult for the prosecution to secure those witnesses to the Court. Therefore, the said observation of the trial Court is not based on any facts and circumstances of this particular case.
14. Under the above said circumstances, we do not find any strong reason to reject the prayer sought for by learned counsel for the appellant, as we are of the opinion that fair opportunity is the harbinger in a criminal case, particularly, when the accused is in judicial custody, he may not be in a position to engage another counsel or he may not be in a position to cross-examine the witnesses by himself. Therefore, as observed above by us, it is the duty of the Court to protect not only the interest of the victim and prosecution, but it is also equally important to safe guard the interest of the accused.
15. Under the above said circumstance, we have no hesitation to set aside the judgment and sentence passed by the trial Court and to remit the matter to the trial Court for disposal of the case in accordance with law, after providing opportunity to the accused to cross- examine all the witnesses who were not cross-examined and also providing opportunity, if necessary, to cross- examine other witnesses if need arises in the case. Accordingly, we proceed to pass the following:
ORDER (i) The appeal is allowed. Consequently, the judgment of conviction dated 26.08.2013 and order on sentence dated 28.08.2019 passed by the I Additional District and Sessions Judge, Bangalore Rural District, Bangalore, in S.C.No.321/2012 is hereby set aside.
(ii) Consequently, the matter stands remitted to the trial Court with a direction that the trial Court has to secure the witnesses who were not examined and provide opportunity to the accused to cross-examine the witnesses and then, if any application is filed for cross-examination of any other witnesses, the Court has to consider the said application also magnanimously, in accordance with law, considering the facts and circumstances prevailing at that point of time.
(iii) The custody of the accused is continued and the trial Court has to secure the presence of the accused before issuance of summons to the witnesses and after securing the witnesses, provide opportunity to the accused as noted above and dispose of the case as expeditiously as possible not exceeding six months from the date of receipt of a copy of this order.
Registry is directed to send back records to of the trial Court forthwith along with certified copy of the order of this Court for compliance.
Sd/- JUDGE Sd/- JUDGE Bmc