Madras High Court
Karuppasamy Pandian vs The Inspector Of Police on 14 June, 2021
Author: K.Kalyanasundaram
Bench: K.Kalyanasundaram, B.Pugalendhi
Crl.A.(MD)No.92 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE K.KALYANASUNDARAM
and
THE HONOURABLE MR.JUSTICE B.PUGALENDHI
Crl.A.(MD)No.92 of 2021
and Crl.M.P.(MD)No.1589 of 2021
Karuppasamy Pandian ... Appellant
versus
The Inspector of Police,
Chinnamanur Police Station,
Theni District. ... Respondent
Appeal filed under Section 374(2) of Cr.P.C. as against the Judgment
and Decree dated 05.09.2019 made in S.C.No.126 of 2011 on the file of the
Fast Track Mahila Court, Theni.
For Appellant : Mr.G.Karuppasamy Pandian
For Respondent : Mr.S.Ravi,
Standing Counsel for Government
JUDGMENT
[Judgment of the Court was delivered by B.PUGALENDHI, J.] The appellant, sole accused in S.C.No.126 of 2011 on the file of the Fast Track Mahila Court, Theni, was found guilty by the trial Court for the offence under Section 304B IPC, convicted and sentenced to undergo life imprisonment, vide Judgment dated 05.09.2019. As against the conviction and https://www.mhc.tn.gov.in/judis/ 1/10 Crl.A.(MD)No.92 of 2021 sentence imposed by the trial Court, the appellant/accused has preferred this Criminal Appeal and pending the Criminal Appeal, he filed a petition for suspension of sentence.
2. The case of the prosecution is that the marriage between the accused and deceased was solemnized on 11.03.2010 and at that time, three sovereign gold jewel and utensils worth about Rs.10,000/- were given as customary dowry. It is alleged that in the month of December 2010, the appellant harassed the deceased and driven her to her parental home to bring dowry amount. Thereafter, she received Rs.10,000/- from her father. Even then, the accused harassed and tortured the deceased and due to intolerable torture, the deceased committed suicide by hanging on 02.03.2011, ie., within seven years from the date of marriage. Therefore, the appellant/accused was charged for the offence under Section 304B IPC. The trial Court, in conclusion of the trial, found him guilty, convicted and sentenced him, as stated supra. Challenging the same, the present appeal is filed.
3. While hearing the petition filed under Section 389(1) Cr.P.C. for suspending the sentence pending the appeal, the learned Standing Counsel for Government pointed out that in this case, the accused has not cross examined the prosecution witnesses and based on the available evidence of prosecution https://www.mhc.tn.gov.in/judis/ 2/10 Crl.A.(MD)No.92 of 2021 alone, the trial Court found the accused guilty, convicted and sentenced him. He also referred to para-9 of the Judgment of the trial Court, wherein, the trial Court has observed that though the accused was offered for legal assistance, he refused to accept the same and he has also filed written arguments by way of an affidavit without any proper format and that it was returned for want of proper presentation and that he did not avail the said opportunity.
4. Mr.G.Karuppasamy Pandian, learned counsel appearing for the petitioner/appellant, relying upon the Judgment of Hon'ble Apex Court in the case of Subedar vs. State of Uttar Pradesh reported in 2021 (1) CTC 233 and the Judgment of this Court in the case of M.Kannan vs. State reported in 2017 (2) MLJ (Crl.) 1, submitted that the trial without legal assistance cannot be regarded as reasonable, fair and just.
5. We have perused the copy of affidavit filed by the petitioner. There was no cross examination of the prosecution witnesses by the accused. It appears that the trial Judge has offered legal assistance from the Legal Aid, however, the accused has not accepted the said offer for legal assistance and he has also not cross examined the prosecution witnesses. https://www.mhc.tn.gov.in/judis/ 3/10 Crl.A.(MD)No.92 of 2021
6. In the decision relied upon by the learned counsel for the accused/appellant, a three-judge Bench of the Hon'ble Supreme Court in Subedar vs. State of Uttar Pradesh, reported in 2021 (1) CTC, 233, has held as follows:
“8. It is well accepted that right of being represented through a Counsel is part of Due Process clause and is referable to the right guaranteed under Article 21 of the Constitution of India.
9. In case the Advocate representing the cause of the Accused, for one reason or the other was not available, it was open to the Court to appoint an Amicus Curiae to assist the Court but the cause in any case ought not to be allowed to go unrepresented.
10. In the circumstances, we have no other alternative but to set aside the Judgment passed by the High Court and to restore Criminal Appeal No.2798 of 1988 to the file of the High Court to be disposed of afresh.
7. A Division Bench of this Court, in the case of M.Kannan vs. State reported in 2017 (2) MLJ (Crl.) 1, after referring to several Judgments of the Hon'ble Supreme Court, held that the trial without legal assistance cannot be regarded as reasonable, fair and just and remanded the matter back to the trial Court so as to afford sufficient opportunity to the accused to cross examine the witness and to examine the witnesses in defence. The relevant https://www.mhc.tn.gov.in/judis/ 4/10 Crl.A.(MD)No.92 of 2021 portion of the Judgment reads as under:
“34. In the instant case, the facts are almost similar. For failure and gross dereliction of duty of the learned counsel engaged by the accused, the accused cannot be penalized. In our considered view, the trial without legal assistance cannot be regarded as reasonable, fair and just. As held by the Hon'ble Supreme Court, it is an essential ingredient of reasonable, fair and just procedure to an accused who is to seek his liberation through the Court process and he should have effective legal assistance. Therefore, we hold that in the instance case, there is denial of fair trial to the appellant and hence, the conviction and sentence cannot be allowed to sustain and the matter needs to be remanded back to the trial Court so as to afford sufficient opportunity to the accused to cross examine the witness and to examine witnesses in defence.”
8. The purpose of cross examination of a witness has been succinctly explained by a Constitution Bench of this Court in Kartal Singh vs. State of Punjab (1994) 3 SCC 569 : 1994 SCC (Cri) 899, which reads as follows:
“278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination-in-chief, the objects of which are:
https://www.mhc.tn.gov.in/judis/ 5/10 Crl.A.(MD)No.92 of 2021 (1) to destroy or weaken the evidentiary value of the witness of his adversary.
(2) to elicit facts in favour of the cross-examining lawyer's client from the mouth of the witness of the adversary party.
(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;
and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character.”
9. The aforesaid view is reiterated in Jayendra Vishnu Thakur vs. State of Maharashtra [(2009) 7 SCC 104 : (2010) 2 SCC (Cri) 500] wherein it is observed as follows:
“24. A right to cross-examine a witness, a part from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, cross- examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross-examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But, indisputably such an opportunity is to be granted. A accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute must say so expressly or the same must be capable of https://www.mhc.tn.gov.in/judis/ 6/10 Crl.A.(MD)No.92 of 2021 being inferred by necessary implication. There are statutes like the Extradition Act, 1962, which excludes taking of evidence vis-a-vis opinion.”
10. Right of being represented by a counsel is part of due process, which is guaranteed under Article 21 of the Constitution of India. Right of cross examination of prosecution witnesses is an essential right vested with the accused during trial and that cannot be denied to the accused. It is an essential ingredient of reasonable, fair and just procedure to an accused, who is to seek his liberation through the court process and he shall have effective legal assistance, even though he did not know the implications. After all, only through the cross examination, truthfulness of the statement made by the witnesses in chief can be ascertained.
11. In the present case on hand, though the accused was offered for legal assistance by the trial Court, he refused to accept the same. When the accused has not cross examined the prosecution witnesses, it is the duty of the Court to appoint a Legal Aid Counsel or Amicus Curiae to aid the accused to defend his case effectively. Further, there is a presumption clause as against the accused under Section 113B of the Indian Evidence Act 1872. When the presumption clause is available, the trial Court ought to have proceeded with https://www.mhc.tn.gov.in/judis/ 7/10 Crl.A.(MD)No.92 of 2021 the trial by engaging a Legal Aid Counsel to defend the accused. But, in this case, the trial Court simply proceeded with the trial with the chief examination of the witnesses, by recording that though the accused was offered legal assistance, he denied the same, which cannot be accepted in the eye of law. Therefore, in the considered view of this Court, in order to provide one more opportunity to thepetitioner/accused for cross examination of prosecution witnesses, the matter should be remanded back to the trial Court to consider the matter afresh.
12. Accordingly, we set aside the Judgment and Decree of the trial Court made in S.C.No.126 of 2011 dated 05.09.2019 and remand the matter to the trial Court to consider and decide the case afresh, after providing an opportunity to the accused for cross examination of prosecution witnesses.
13. The trial Court shall proceed with the case with the available chief examination and provide an opportunity to the accused to cross examine the prosecution witnesses either by himself or by engaging a Counsel. If the accused is not utilising this opportunity for the cross examination of the witnesses, the trial Court shall appoint a Counsel, who is having more than 15 years of experience as legal aid counsel to defend the accused. If any circumstances appearing in the evidence as against the accused during the https://www.mhc.tn.gov.in/judis/ 8/10 Crl.A.(MD)No.92 of 2021 cross examination, the procedure as per Section 313 (1) CrPC has to be followed. The entire exercise shall be completed within a period of three months from the date of receipt of a copy of this Judgment. Since the accused is in custody, he shall be produced before the trial Court, namely, the Fast Track Mahila Court, Theni, for further remand.
14. Accordingly, the Criminal Appeal is allowed. Consequently, connected miscellaneous petition is closed.
[M.K.K.S.,J] & [B.P.J]
14.06.2021
Index : Yes / No
Internet : Yes / No
ogy
Note: In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order
may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.
To
1. The Fast Track Mahila Court, Theni.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis/ 9/10 Crl.A.(MD)No.92 of 2021 K.KALYANASUNDARAM, J.
AND B.PUGALENDHI, J.
ogy Crl.A.(MD)No.92 of 2021 14.06.2021 https://www.mhc.tn.gov.in/judis/ 10/10