Karnataka High Court
Shri Shankar Guru vs State Of Karnataka By on 15 July, 2013
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Crl.A.598/2013
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 15th DAY OF JULY, 2013
BEFORE
THE HON'BLE MR.JUSTICE A.S.PACHHAPURE
CRIMINAL APPEAL No.598/2013
BETWEEN:
SHRI SHANKAR GURU,
S/O NARASHIMHAIAH,
AGED ABOUT 33 YEARS,
1ST 'B' CROSS, BRI COLONY,
AGRAHARA DASARAHALLI,
BANGALORE 560 079.
AND NATIVE PLACE AT:
KODIGEHALLI VILLAGE,
BEGUR HOBLI,
NELAMANGALA TALUK
BANGALORE 563 213.
... APPELLANT
(BY SRI.KEMPARAJU, ADV.)
AND:
STATE OF KARNATAKA BY
KAMAKSHIPALYA POLICE STATION,
REP. BY ITS STATE PUBLIC PROSECUTOR,
HIGH COURT COMPLEX,
HIGH COURT OF KARNATAKA,
BANGALORE 560 001.
... RESPONDENT
(BY SRI. VIJAYAKUMAR MAJAGE, HCGP)
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Crl.A.598/2013
THIS CRL.A FILED U/S.374(2) CR.P.C PRAYING TO
SET ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 22.04.2013 PASSED BY THE P.O.,
F.T.C.-V, BANGALORE IN S.C.NO.152/2012 - CONVICTING
THE APPELLANT/ACCUSED FOR THE OFFENCE P/U/S.307 OF
IPC.
THE APPELLANT/ACCUSED IS SENTENCED TO UNDERGO
IMPRISONMENT FOR 10 YEARS AND PAY FINE OF
RS.10,000/-, IN DEFAULT TO PAY FINE, HE SHALL
UNDERGO S.I. FOR 2 YEARS FOR THE OFFENCE P/U/S.307
OF IPC.
THIS APPEAL COMING ON FOR 'HEARING-IA' THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Though this matter is listed for Hearing Interlocutory Application, with the consent of learned counsel for the appellant and the learned High Court Government Pleader, the matter is taken up for final disposal.
2. The appellant has challenged his conviction and sentence for the offence punishable under Section 307 IPC on a trial held by the Fast Track Court-V, Bangalore City.
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3. During the incident dated 19.7.2011 at 10.00 a.m. the appellant is said to have assaulted PW1-Neelamma with the chopper. PWs.4 and 5 being her husband and his brother. PW9 is the doctor in whose presence the statement of the injured was recorded. After examination in chief of PWs.4, 5 and 9, the matter was adjourned for cross- examination on payment of costs and on the next day as the advocate was absent, the cross-examination is taken as nil. The trial Court after conclusion of the trial heard and under impugned judgment and order convicted the appellant for the charge under Section 307 IPC and ordered him to undergo imprisonment for ten years and to pay fine of Rs.10,000/-. Aggrieved by the conviction and sentence, the present appeal has been filed.
4. Learned counsel for the appellant has filed an application under Section 391 Cr.P.C. to enable the appellant to cross-examine the aforesaid -4- Crl.A.598/2013 witnesses. Heard on merits and also on interim application filed under Section 391 Cr.P.C.
5. It is the submission of the learned counsel that reasonable opportunity was not given to cross- examine PWs.4, 5 and 9 and as the Court is relied upon their evidence, the conviction is illegal and erroneous.
6. The learned High Court Government Pleader has supported the judgment and order of the trial Court.
7. In criminal cases it is the liberty of the accused which is at stake and therefore the accused has to be given a reasonable opportunity to cross- examine the witnesses. If the accused is represented by an advocate and if the advocate is absent on that day, the Court in its discretion can appoint a standing counsel to complete the cross- examination. Without the cross-examination of the witnesses, in criminal cases the evidence cannot be -5- Crl.A.598/2013 relied upon to convict the accused. Though the trial Court had granted time for cross-examination on payment of costs, on the date when it was posted for cross-examination, again the counsel was absent. The trial Court ought to have given an opportunity to the appellant to engage another counsel and in case if he pleads his inability, could have appointed a standing counsel. As this opportunity is not been given to the appellant, subsequent conviction order is erroneous and illegal. It has to be set aside and the matter has to be remitted back to the trial Court with the limited purpose for cross-examination and re- examination of PWs.4, 5 and 9 and then to dispose of the case in accordance with law.
8. In the result, the appeal is allowed. The judgment and order dated 22.4.2013 is set aside. The matter is remitted back to the trial Court with a direction to afford an opportunity to the appellant to cross-examine the witnesses and -6- Crl.A.598/2013 dispose of the case in accordance with law in the light of the observations made above.
Office is directed to send the records forthwith to enable the trial Court to complete the trial.
The trial Court is directed to complete the process within three months from the date of communication of this order.
As the matter is heard on merits, IA No.1/13 does not survive for consideration, hence rejected.
Sd/-
JUDGE AP/-