Karnataka High Court
Bettakurubara M Suresha vs State Of Karnataka on 17 March, 2022
Author: B. Veerappa
Bench: B. Veerappa
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CRL.A No. 516 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE S. RACHAIAH
CRIMINAL APPEAL NO. 516 OF 2019
BETWEEN:
1. BETTAKURUBARA M. SURESHA,
S/O B. K. MUTHU,
NOW AGED ABOUT 35 YEARS,
OCC: COOLIE
R/O MEENUKOLLI FOREST COLONY,
NANJARAYAPATNA, SOMWARPET TALUK,
R/AT: LINE HOUSE OF BOMMANDA SOMAIAH
AMMATHI VILLAGE 571236.
PRESENTLY AT CENTRAL PRISON, MYSURU
CONVICT NO.18829.
...APPELLANT
(BY SRI DR. J. S. HALASHETTI, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
R/BY CIRCLE POLICE INSPECTOR,
VIRAJPET CIRCLE,
Digitally signed by NOW R/BY STATE PUBLIC PROSECUTOR,
GAVRIBIDANUR
SUBRAMANYA HIGH COURT BUILDING,
GUPTA HIGH COURT OF KARNATAKA,
SREENATH
Location: High BENGALURU 560001.
Court of Karnataka
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDL. SPP)
*****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
374(2) OF THE CODE OF CRIMINAL PROCEDURE PRAYING TO
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CRL.A No. 516 of 2019
SET ASIDE THE JUDGMENT OF CONVICTION AND ORDER OF
SENTENCE DATED 06/13.10.2016 PASSED BY THE II
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU-
MADIKERI SITTING AT VIRAJPET IN S.C.NO.60/2010
CONVICTING AND SENTENDING THE APPELLANT/ACCUSD FOR
THE OFFENCE PUNISHABLE UNDER SECTION 302 OF IPC.
THIS CRIMINAL APPEAL COMING ON FOR HEARING THIS
DAY, B.VEERAPPA J., DELIVERED THE FOLLOWING:
JUDGMENT
It is an unfortunate case that due to non-performing the institutional responsibility by Smt. B. Anupama Kishore, Advocate, Virajpet appointed by the Legal Services Authority to defend the accused and due to non-performance of the institutional responsibility and the constitutional obligations by the learned Sessions Judge, the present criminal appeal is filed by the accused - father of the deceased children.
2. This criminal appeal is filed by the appellant/accused against the judgment of conviction and order of sentence dated 6/13.10.2016 made in Sessions Case No.60/2010 on the file of the II Addl. District & Sessions Judge, Kodagu-Madikeri sitting at Virajpet, convicting him for the offence punishable under Section 302 of IPC and sentencing him to undergo Rigorous -3- CRL.A No. 516 of 2019 Imprisonment for life and to pay fine of Rs.50,000/- with default sentence.
3. It is the case of the prosecution that on 22.9.2009 in the Coffee Estate of Bommanda Bhoju at Ammathi village, the accused immersed his children by name Roopesh and Dhanya into the Kumme river and killed them since his wife was not cooperating for cohabitation. On the basis of the complaint lodged by PW.1, who is none other than wife of the accused and mother of the deceased children, the jurisdictional Police registered the case and after completion of investigation filed the charge sheet against the accused. The matter was committed to the learned Sessions Judge. Since the accused was not represented, Smt. B. Anupama Kishore, Advocate, Virajpet, was appointed from the Taluk Legal Services Authority to defend the accused. After committal of the matter, the learned Sessions Judge secured the presence of the accused and framed the charge and read over and explained to the accused in the language known to him, who pleaded not guilty and claimed to be tried.
-4- CRL.A No. 516 of 20194. In order to prove the guilt of the accused, the prosecution in all examined 22 witnesses as PWs.1 to 22 and got marked the material documents - Ex.P1 to Ex.P45 and the material objects - Mos.1 and 2.
5. After completion of evidence of the prosecution witnesses, the statement of the accused was recorded as contemplated under the provisions of Section 313 of the Code of Criminal procedure. The accused denied all the incriminating circumstances appearing against him and not adduced any defence evidence.
6. Based on the aforesaid pleadings on record, the learned Sessions Judge framed the point for consideration.
Considering both the oral and documentary evidence on record, the learned Sessions Judge answered the question in the affirmative holding that the prosecution proved beyond reasonable doubt that the accused intentionally killed his two children viz., Roopesh and Dhanya knowingly to cause death by immersing in Kumme river. Accordingly, the learned Sessions Judge proceeded to convict the accused for the offence punishable under Section 302 of IPC and sentenced him to -5- CRL.A No. 516 of 2019 undergo Rigorous Imprisonment for life with fine and default sentence. Hence, the present appeal is filed by the accused.
7. Dr.J.S. Halashetti, learned counsel for the apellant/accused vehemently contended that the impugned judgment of conviction and order of sentence passed by the trial Court, convicting and sentencing the accused for the offence punishable under Section 302 of IPC, is erroneous and contrary to the material on record and cannot be sustained.
He would further contend that the learned Sessions Judge committed serious error in convicting the accused only on the basis of last seen theory. PW.6 was 7 years old at the time, when he is said to have seen the accused with deceased Roopesh and Dhanya and he was examined after four years on 28.2.2013 and he stated that he informed his father that he saw deceased children with accused. However, PW.4 who is father of PW.6 has turned hostile and not supported the case of the prosecution. The said material aspect has not been considered by the learned Sessions Judge. He would further contend that in the entire judgment, the learned Sessions Judge has merely discussed the judgments relied upon and only in paragraph-33 there is a cryptic discussion and ultimately -6- CRL.A No. 516 of 2019 proceeded to convict the accused. He also contended that the accused was not given sufficient opportunity to cross-examine of PWs.3,5 to 15 and 17, thereby the learned Sessions Judge erroneously convicted the accused and it is in utter violation of the provisions of sections 303 and 304 of the Code of Criminal Procedure and Articles 21, 22 and 39A of the Constitution of India. He would further contend that even though an application is filed for recalling of the witnesses for cross-
examination, the same came to be rejected, thereby opportunity was not given to the accused to cross-examine the prosecution witnesses. Therefore, the impugned judgment of conviction passed by the trial Court is not fair and liable to be set aside.
8. Per contra, Sri Vijaykumar Majage, learned Addl. SPP while justifying the impugned judgment of conviction and order of sentence, has contended that PW.1, the mother of the deceased children and wife of the accused has made statement before the Court that the children were with the accused as on the date of the unfortunate incident occurred. The same is not denied by the accused in the cross-examination of PW.1 nor offered any explanation in the statement recorded under -7- CRL.A No. 516 of 2019 Section 313 of the Code of Criminal procedure. He also contended that PW.6 is the material witness and unfortunately, he has not been cross-examined and further, most of the witnesses - PWs.3,5, 7 to 15 were not cross-examined and though Smt. B. Anupama Kishore, advocate, Virajpet, was appointed by the Legal Services Authority to defend the case, she has not discharged her institutional responsibility and the constitutional obligation, thereby the learned Sessions Judge proceeded to convict the accused. Therefore, he sought to dismiss the appeal.
9. In view of the rival contentions urged by the learned counsel for the parties, the only point that would arise for our consideration in the present appeal is:
"Whether the learned Sessions Judge is justified in convicting and sentencing the appellant/accused for the offence punishable under Section 302 of IPC, without providing an opportunity to the learned counsel for the accused to cross-examine PWs.3,5 to 15 and 17, in the peculiar facts and circumstances of the case ?"
10. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and -8- CRL.A No. 516 of 2019 perused the entire material on record including the original records carefully.
11. On careful perusal of the trial Court records including the order sheet maintained by the trial court as well as depositions of Pws.3, 5 to 15 and 17, it clearly depicts that when the matter was posted for cross-examination, learned counsel for the accused was absent and taken the cross-
examination as nil. It is brought to the notice of the Court that though an application came to be filed by the learned counsel for the accused under Section 311 of the Code of Criminal Procedure for recalling of the aforesaid prosecution witnesses for cross-examination, the trial Court rejected the said application and the accused was not allowed to cross-
examine the prosecution witnesses. The trial Court mainly relied upon the evidence of PW.1 (the wife of the accused and mother of the deceased children), PW.4 (father of PWs.1 and 6) and PW.6. Though PW.6, who was studying along with the deceased children is the material witness and has stated that the accused taken away the children, he has not been cross-
examined and PW.4 (father of PW.6) has turned hostile to the case of the prosecution. The fact remains that the trial Court -9- CRL.A No. 516 of 2019 erred in not affording an opportunity to the accused to cross-
examine prosecution witnesses by providing free legal aid by appointing some other counsel from the Legal Services Authority, since the counsel - B. Anupama Kishore, advocate, Virajpet, who was appointed on behalf of the Legal Services Authority has not discharged her institutional responsibility.
Unfortunately, the learned Sessions Judge proceeded to convict the accused only on the basis of evidence of PWs.1,4 and 6 giving cryptic reasons at paragraph-33 of the judgment and infact in the entire judgment, he has merely discussed the judgments relied upon and there no other discussion. The reasons assigned and the conclusion arrived at by the trial Court are not proper. The learned Sessions Judge has not afforded opportunity to cross-examine PWs.3,5 to 15 and not discharged his institutional responsibility and constitutional obligations and therefore, the impugned judgment passed by the trial Court cannot be sustained.
12. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Rajaram Prasad Yadav -vs-
State of Bihar and another reported in (2013)14 SCC 461,
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CRL.A No. 516 of 2019wherein the Hon'ble Supreme Court held at paragraphs 14 and 17 as under:
14. A conspicuous reading of Section 311 CrPC would show that widest of the powers have been invested with the courts when it comes to the question of summoning a witness or to recall or re-
examine any witness already examined. A reading of the provision shows that the expression "any" has been used as a prefix to "court", "inquiry", "trial", "other proceeding", "person as a witness", "person in attendance though not summoned as a witness", and "person already examined". By using the said expression "any" as a prefix to the various expressions mentioned above, it is ultimately stated that all that was required to be satisfied by the court was only in relation to such evidence that appears to the court to be essential for the just decision of the case. Section 138 of the Evidence Act, prescribed the order of examination of a witness in the court. The order of re-examination is also prescribed calling for such a witness so desired for such re-examination. Therefore, a reading of Section 311 CrPC and Section 138 Evidence Act, insofar as it comes to the question of a criminal trial, the order of re-examination at the desire of any person under Section 138, will have to necessarily be in consonance with the prescription
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CRL.A No. 516 of 2019contained in Section 311 CrPC. It is, therefore, imperative that the invocation of Section 311 CrPC and its application in a particular case can be ordered by the court, only by bearing in mind the object and purport of the said provision, namely, for achieving a just decision of the case as noted by us earlier. The power vested under the said provision is made available to any court at any stage in any inquiry or trial or other proceeding initiated under the Code for the purpose of summoning any person as a witness or for examining any person in attendance, even though not summoned as witness or to recall or re- examine any person already examined. Insofar as recalling and re-examination of any person already examined is concerned, the court must necessarily consider and ensure that such recall and re- examination of any person, appears in the view of the court to be essential for the just decision of the case. Therefore, the paramount requirement is just decision and for that purpose the essentiality of a person to be recalled and re-examined has to be ascertained. To put it differently, while such a widest power is invested with the court, it is needless to state that exercise of such power should be made judicially and also with extreme care and caution.
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CRL.A No. 516 of 201917. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 CrPC read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the courts:
17.1. Whether the court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the court for a just decision of a case?
17.2. The exercise of the widest discretionary power under Section 311 CrPC should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
17.3. If evidence of any witness appears to the court to be essential to the just decision of the case, it is the power of the court to summon and examine or recall and re-examine any such person.
17.4. The exercise of power under Section 311 CrPC should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case,
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unless the facts and circumstances of the case make it apparent that the exercise of power by the court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
17.6. The wide discretionary power should be exercised judiciously and not arbitrarily.
17.7. The court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
17.8. The object of Section 311 CrPC simultaneously imposes a duty on the court to determine the truth and to render a just decision.
17.9. The court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
17.10. Exigency of the situation, fair play and good sense should be the safeguard, 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
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CRL.A No. 516 of 2019magnanimous in permitting such mistakes to be rectified.
17.11. 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.
17.12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
17.13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
17.14. 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,
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CRL.A No. 516 of 2019caution 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. At this stage, it is relevant to consider the provisions of Article 21 of the Constitution of India, which reads as under:
21. Protection of life and personal liberty.--No person shall be deprived of his life or personal liberty except according to procedure established by law.
14. By a careful reading of the above provisions, it makes it clear that no person shall be deprived of his life or personal liberty except in accordance with law and assurance of a fair trial is the first imperative of the dispensation of justice.
15. Our view is also fortified by the dictum of the Hon'ble Apex Court in the case of Commissioner of Police, Delhi and another -vs- Registrar, Delhi High Court reported in AIR 1997 SC 95, wherein the Hon'ble Supreme Court at paragraph 15 held as under:
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15. Shri Bhat supported the need for change of venue not only on the apprehensions and threat perception projected by the appellants but also on the ground that the request for change has been made taking into account certain suggestions made by Hon'ble Mr Justice J.S. Verma, sitting Judge of this Court, who sat in Commission to report the security failures relatable to the assassination of late Prime Minister, Shri Rajiv Gandhi. That report, in our view, is entitled to great respect and his Lordship's suggestions are not meant to be merely on paper but must reach out in action. Another former Prime Minister cannot have to be experimentally killed in order to realize the gravity of threat perception more so while undergoing criminal trial/trials. Emphasis need be laid on Article 21 of the Constitution which enshrines and guarantees the precious right of life and liberty to a person, deprivable only on following the procedure established by law in a fair trial, assured of the safety of the accused. Assurance of a fair trial is the first imperative of the dispensation of justice. This is what Justice Krishna Iyer speaking for the Court in Maneka Sanjay Gandhi v. Rani Jethmalani AIR 1979 SC 468 at 470) had to say: (SCC p. 170, para
5)
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"... Likewise, the safety of the person of an accused or complainant is an essential condition for participation in a trial and where that is put in peril by commotion, tumult or threat on account of pathological conditions prevalent in a particular venue, the request for a transfer may not be dismissed summarily. It causes disquiet and concern to a court of justice if a person seeking justice is unable to appear, present one's case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquillity at the trial. Turbulent conditions putting the accused's life in danger or creating chaos inside the court hall may jettison public justice. If this vice is peculiar to a particular place and is persistent the transfer of the case from that place may become necessary. Likewise, if there is general consternation or atmosphere of tension or raging masses of people in the entire region taking sides and polluting the climate, vitiating the necessary neutrality to hold a detached judicial trial, the situation may be said to have deteriorated to such an extent as to warrant transfer."
16. The provisions of Article 22(1) of the Constitution of India reads as under:
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22. Protection against arrest and detention in certain cases.--(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
By a careful reading of the above provisions, it makes it clear that no person who is arrested shall be detained in custody without being informed to his nearest relatives and shall have right to engage the counsel of his choice.
17. Our view is fortified by the judgment of the the Hon'ble Supreme Court in the case of State of M.P -vs-
Shobharam and others reported in AIR 1966 SC 1910, wherein the Hon'ble Supreme Court at paragraph-23 held as under:
23. As I have stated already a person who is arrested gets three rights which are guaranteed.
The first is that he must be told why he is arrested. This requirement cannot be dispensed with by taking bail from him. The need to tell him why he is arrested, remains still. The next is that the person arrested must not be detained in custody more
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CRL.A No. 516 of 2019than 24 hours without being produced before a Magistrate. This requirement is dispensed with when the person arrested is admitted to bail. Otherwise it remains. The third is that he gets a right to consult and to be defended by a legal practitioner of his choice. This is, of course, so while the arrest continues but there are no words to show that the right is lost no sooner than he is released on bail. The word "defended" clearly includes the exercise of the right so long as the effect of the arrest continues. Before his release on bail the person defends himself against his arrest and the charge for which he is arrested and after his release on bail, against the charge he is to answer and, for answering which, the bail requires him to remain present, The narrow meaning of the word "defended" cannot be accepted.
18. It is the duty cast upon the Court to ensure the compliance of the provisions of Article 39A of the Constitution of India, which reads as under:
39-A. Equal justice and free legal aid.-- The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for
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securing justice are not denied to any citizen by reason of economic or other disabilities.
19. By a careful perusal of the aforesaid provisions, it makes it clear that Article 39A of the Constitution contemplates the right of a person involved in a criminal proceedings to legal aid which is fundamental right as held by the Apex Court in the case of Kishore Chand -vs- State of H.P. reported in AIR 1990 SC 2140, wherein the Hon'ble Supreme Court at paragraph-13 held as under:
13. Though Article 39-A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practising in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency.
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CRL.A No. 516 of 201920. The provisions of Section 303 of the Cr.P.C. gives right to any person accused of an offence before a criminal Court to be defended by a pleader of his choice. The provisions of Section 304 of the Cr.P.C. contemplates legal aid to accused facing charge in case triable by Sessions Judge at State expense.
21. Though Smt. B.Anupama Kishore, advocate, Virajpet, was appointed from the Legal Services Authority to defend the accused, unfortunately learned counsel was not present when the matter was posted for cross-examination, thereby she has not discharged her institutional responsibility and constitutional obligations.
22. On careful reading of the aforesaid provisions of the Constitution of India and the Code of Criminal Procedure, it clearly depicts that a fair trial is the main object of the criminal procedure and it is the duty of the Court to act as societal parent and ensure that such fairness is not hampered or threatened. Further, the right of a person charged with crime to have the services of a lawyer is fundamental and essential for fair trial.
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CRL.A No. 516 of 201923. The Hon'ble Supreme Court while considering the powers of the appellate Court for re-trial, particularly on the limited point of re-recording statements of witnesses in the case of P. Ramesh -vs- State represented by Inspector of Police reported in (2019) 20 SCC 593, held at paragraphs 18 to 23 as under:
18. We are mindful of the fact that the decision of the High Court was in an appeal preferred by the accused. In such a situation it is necessary to discuss the scope of the High Court's powers in an appeal filed against conviction. Section 374 CrPC provides for appeals against convictions and allows any person convicted by a Sessions Judge or an Additional Sessions Judge to appeal before the High Court. Section 386 CrPC defines the powers of the appellate court while disposing of an appeal against an order of conviction or acquittal. The power under this section is not unlimited. The provision is to be taken as giving the power to do only that which the lower court could and should have done in a criminal case.
19. A three-Judge Bench decision of this Court in Mohd. Hussain v. State (NCT of Delhi) [(2012) 9 SCC 408 : (2012) 3 SCC (Cri) 1139] while dealing with the powers of the appellate court to order a
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retrial under Section 386(b) CrPC, held thus: (SCC p. 428, para 41) "41. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same trial and same prosecution.
The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no straitjacket formula
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CRL.A No. 516 of 2019can be formulated but the appellate court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked."
20. A similar position was adopted by this Court in Ajay Kumar Ghoshal v. State of Bihar [(2017) 12 SCC 699 : (2017) 4 SCC (Cri) 458] , where it was held thus: (SCC p. 702, para 11) "11. Though the word "retrial" is used under Section 386(b)(i) CrPC, the powers conferred by this clause is to be exercised only in exceptional cases, where the appellate court is satisfied that the omission or irregularity has occasioned in failure of justice. The circumstances that should exist for warranting a retrial must be such that where the trial was undertaken by the court having no jurisdiction, or trial was vitiated by serious illegality or irregularity on account of the misconception of nature of proceedings. An order for retrial may be passed in
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CRL.A No. 516 of 2019cases where the original trial has not been satisfactory for some particular reasons such as wrong admission or wrong rejection of evidences or the court refused to hear certain witnesses who were supposed to be heard."
21. The power of an appellate court to order a retrial on the limited point of re-recording statements of witnesses was recently discussed in Atma Ram v. State of Rajasthan [(2019) 20 SCC 481] , where the trial court had convicted the accused persons of the offences under Sections 302, 307, 452, 447, 323, 147, 148 and 149 IPC and sentenced them to death. During the trial, the court had recorded the evidence of twelve witnesses in the absence of the accused persons. In an appeal against conviction preferred by the accused persons, the High Court [State v. Aatma Ram, 2018 SCC OnLine Raj 2509 : (2019) 1 RLW 135] exercised its powers under Section 386(b) CrPC to quash and set aside the judgment of the trial court and remanded the matter back to trial court to the extent of recording statements of the twelve witnesses afresh after securing presence of the accused in the court. The High Court held [State v. Aatma Ram, 2018 SCC OnLine Raj 2509 :
(2019) 1 RLW 135] in the following terms:
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"19. In view of the discussion made hereinabove and looking to the glaring facts of the case at hand, we feel that in order to do complete justice to the accused as well as to the victims, the entire case cannot be thrown out by holding the proceedings to be vitiated on account of the mistakes committed by the trial Judge or the prison authorities concerned. A fresh trial/de novo has to be ordered by directing the trial court to lawfully re-record statements of the witnesses indicated above whose evidence was recorded in the first round without ensuring presence of the accused in the court."
The accused persons preferred a special leave petition before this Court, challenging the High Court's order of a de novo trial for re-recording of statements of witnesses. Affirming the view taken by the High Court, this Court held thus: (Atma Ram case [Atma Ram v. State of Rajasthan, (2019) 20 SCC 481] , SCC pp. 499-500, para 22) "22. ... Section 386 then enumerates powers of the appellate court which inter alia includes the power to "reverse the finding and sentence and acquit or
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CRL.A No. 516 of 2019discharge the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to such appellate court or committed for trial".
The powers of appellate court are equally wide. The High Court in the present case was exercising powers both under Chapters XXVIII and XXIX of the Code. If the power can go to the extent of ordering a complete retrial, the exercise of power to a lesser extent, namely, ordering de novo examination of twelve witnesses with further directions as the High Court has imposed in the present matter, was certainly within the powers of the High Court. There is, thus, no infraction or jurisdictional error on the part of the High Court.
25. ... If there was an infraction, which otherwise does not vitiate the trial by itself, the attempt must be to remedy the situation to the extent possible, so that the interests of the accused as well as societal interest are adequately safeguarded. The very same witnesses were directed to be de novo examined
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CRL.A No. 516 of 2019which would ensure that the interest of the prosecution is subserved and at the same time the accused will have every right and opportunity to watch the witnesses deposing against them, watch their demeanour and instruct their counsel properly so that said witnesses can be effectively cross-examined. In the process, the interest of the accused would also stand protected. On the other hand, if we were to accept the submission that the proceedings stood vitiated and, therefore, the High Court was powerless to order de novo examination of the witnesses concerned, it would result in great miscarriage of justice. The persons who are accused of committing four murders would not effectively be tried. The evidence against them would not be read for a technical infraction resulting in great miscarriage. Viewed thus, the order and directions passed by the High Court completely ensure that a fair procedure is adopted and the depositions of the witnesses, after due distillation from their cross-examination can be read in evidence."
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CRL.A No. 516 of 201922. In the present case, the High Court in the considered exercise of its appellate jurisdiction has remanded the proceedings back to the trial court to assess objectively the capacity of the two child witnesses and if the evidence is recorded, to furnish an opportunity to the accused to offer evidence in rebuttal. The accused will also be entitled to cross-examine them. We have taken due note of the submissions which have been made on the part of the appellant in regard to the fact that there has been some lapse of time. As on date, though a little over four years have elapsed since the exclusion of their evidence by the trial Judge, both the witnesses continue to be minors. Hence, the High Court has issued necessary directions to the learned trial Judge to assess objectively the capacity of the two child witnesses before recording their evidence.
23. Consistent with the law which has been laid down by this Court in State of Maharashtra v. Bandu [ (2018) 11 SCC 163 : (2018) 2 SCC (Cri) 458] , it would be appropriate for the learned trial Judge to ensure that the evidence of PW 3 and PW 4 is recorded in a child friendly environment.
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CRL.A No. 516 of 201924. We have come across several cases, wherein the learned Sessions Judges while discharging their duties and dealing with matters pertaining to major offences under Sections 307, 302 and 376 of IPC, during trial when the accused counsel was absent, by recording that counsel was absent, closes the cross-examination of the defence as nil and proceed to pass the judgment of conviction and order of sentence against the accused. It is against the fundamental rights guaranteed to the accused persons under Articles 21, 22 and 39A of the Constitution of India as well as the provisions of Sections 303 and 304 of the Code of Criminal Procedure. In case the defence counsel appointed by the Legal Services Authority was not present on the particular day, when the matter was posted for cross-examination or not at all appeared for ever to cross-examine the prosecution witnesses, it is the duty cast on the Court to ensure that opportunity should be given to the accused to engage the services of some other counsel. In the present case, the trial Court ought to have given free legal assistance to the accused by appointing some other advocate from the Legal Services Authority, in order to
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CRL.A No. 516 of 2019provide fair trial since the counsel - B. Anupama Kishore, advocate, Virajpet, who was appointed from the Legal Services Authority has not discharged her institutional responsibility.
Unfortunately, in the present case, because of the mistake committed by Smt. B. Anupama Kishore, learned counsel appointed by the Legal Services Authority, who has not discharged her institutional responsibility, the learned Judge proceeded to convict the accused ignoring the fact that PWs.3,5 to 15 and 17 were not at all cross-examined. Even the material witness - PW.6 also not cross-examined, thereby the learned Judge not discharged his institutional responsibility and constitutional obligation. Further, it appears the learned Sessions Judge has disposed off the matter at the cost of the accused to reach the disposal quota on the administrative side and the said attitude of the Officer has to be deprecated. In that event, people lose confidence in the judicial system which should not be allowed to happen. If the person was not able to do justice in accordance with law, he has no right to punish the innocent people at the same time without providing opportunity to the defence for cross-examination, in order to ensure fair trial. In the present case, the trial Court erred in
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CRL.A No. 516 of 2019not providing sufficient opportunity to the defence to cross-
examine the prosecution witnesses.
25. For the reasons stated above and in the light of the principles enunciated in the dictums of the Hon'ble Supreme Court stated supra and the provisions of the Constitution of India and the Code of Criminal Procedure, we answer the point raised in the present criminal appeal in the negative holding that the learned Sessions Judge is not justified in convicting and sentencing the accused for the offence punishable under Section 302 of IPC, without providing an opportunity to the learned counsel for the accused to cross-examine PWs.3,5 to 15 and 17, in the peculiar facts and circumstances of the case.
Accordingly, the matter is remanded back to the trial Court for providing an opportunity to the accused to cross-examine the prosecution witnesses, in particular PWs.3, 5 to 15 and 17, in order to ensure fair trial and fulfill the constitutional mandate as stated supra.
26. In view of the above, we pass the following:
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ORDER i. Criminal Appeal filed by the appellant - accused is allowed.
ii. The impugned judgment of conviction and order of sentence dated 6/13.10.2016 made in Sessions Case No.60/2010 on the file of the II Addl. District & Sessions Judge, Kodagu- Madikeri, sitting at Virajpet, is hereby set aside. The matter is remanded back to the trial Court with a direction to the learned Sessions Judge to provide an opportunity to the appellant - accused to cross-examine the prosecution witnesses, in particular PWs.3,5 to 15 and 17 and dispose off the matter after providing fair trial and strictly in accordance with law.
iii. It is made clear that since Smt. B. Anupama Kishore, advocate, Virajpet, appointed by the Legal Services Authority has not discharged her institutional responsibility and constitutional obligations, if she is still in the panel of the Legal Services Authority, necessary steps shall be taken to remove her from the Panel so that she should not harm any other party in future and provide an opportunity to young and active
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advocates of the Bar who are empanelled in the Legal Services Authority. Legal services Authority is directed to ensure appointment of a competent advocate, who has exclusive criminal practice for providing legal assistance to the accused, immediately.
iv. As the crime is of the year 2009, the trial Court is directed to take up the matter on day-to-day basis without any unnecessary adjournments and dispose off the matter within a period of three months from the date of receipt of certified copy of this judgment.
v. We have not expressed any opinion on the merits or demerits of the case. The trial Court shall dispose of the matter on merits without being influenced by any of the observations and ensure justice to be done in accordance with law.
vi. Since the main matter itself is disposed off, I.A. No.1/2022 for suspension of sentence and bail does not survive for consideration and it is accordingly disposed off.
vii. The Registry is directed to send copy of this judgment to the concerned Addl. District & Sessions Judge, Kodagu-Madikeri sitting at
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Virajpet and ensure that the matter is disposed off within the stipulated time.
viii. Copy of this judgment shall also be sent to Sri T.M. Nagaraja, the then II Addl. District & Sessions judge, Kodagu-Madikeri, even if he is retired so that he should know the blunder committed by him in the present case.
Ordered accordingly.
Sd/-
JUDGE Sd/-
JUDGE GSS