Karnataka High Court
Sri Nagaraj vs State By Malur Police on 8 February, 2022
CRL.A.No.1067/2017
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF FEBRUARY 2022
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
CRIMINAL APPEAL NO.1067/2017
BETWEEN:
SRI NAGARAJ
S/O VENKATESHAPPA
AGED 23 YEARS
R/O AMBEDKAR COLONY,
MALUR TOWN KOLAR DISTRICT ... APPELLANT
(BY SRI.S.G.CHAITANYA, ADVOCATE AS AMICUS CURIAE)
AND:
STATE BY MALUR POLICE
KOLAR DISTRICT
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BANGALORE - 560 001 ... RESPONDENT
(BY SRI.SHANKAR H.S. HCGP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
SENTENCE DATED 29-11-2016 AND 30-11-2016 PASSED BY
THE I ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR
IN S.C.NO.275/2014 CONVICTING THE APPELLANT/ACCUSED
FOR THE OFFENCE PUNISHABLE UNDER SECTIONS 363 AND
376(2)(j)(l) IPC.
THIS CRIMINAL APPEAL COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CRL.A.No.1067/2017
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JUDGMENT
Aggrieved by the order of conviction and sentence passed against him for the offences punishable under Sections 363 and 376(2)(j)(l) IPC, the accused in SC No.275/2014 on the file of I Additional Session Judge, Kolar, has preferred the above appeal.
2. The appellant was prosecuted in SC No.275 of 2014 for the aforesaid offences on the basis of the chargesheet filed by Maluru Police in Crime No.195/2014 of their Police Station.
3. The case of the prosecution in brief is as follows:
PW4- the victim girl was mentally challenged and aged 21 years. PW1 is the father, PW2 is the grandmother and PW3 is the aunt of PW4. The appellant was the neighbhour of PW1. On 17-7-2014 at about 12.00 noon taking advantage of absence of PWs 1 and 2 at their house, the appellant dragged PW4 from her house to a nearby vacant house, gagging her mouth he committed CRL.A.No.1067/2017 3 rape on her. When PW3 came to the scene of offence, on seeing her the appellant escaped. PW4 narrated the incident to PWs 2 and 3. On PW1 returning home, they informed about the incident. Then they filed complaint as per Ex.P1 before the PW14-PSI of Maluru Police Station.
4. On the basis of Ex.P1 he registered FIR as per Ex.P11 and handed over the further investigation to PW15. PW15 got the victim medically examined, conducted the spot mahazar as per Ex.P2 and he got recorded the statement of the victim under Section 164 of Cr.P.C., collected the record with regard to the proof of the age of the victim, arrested the appellant, recorded the statements of the witnesses and on completing the investigation filed the chargesheet.
5. The jurisdictional Magistrate took cognizance of the offences and committed the case to the Trial Court. The Trial Court on hearing the parties, framed the charges against the appellant for the offences punishable under CRL.A.No.1067/2017 4 Sections 363 and 376 (2)(j)(l) IPC. Since the appellant denied the charges, the trial was conducted.
6. In support of its case, the prosecution examined PWs 1 to 15 and got marked Exs.P1 to P15 and MOs 1 to
3. During the trial the appellant was in judicial custody. The records show that except PW6, defence counsel did not cross examine any other witnesses nor he addressed his arguments.
7. The Trial Court on hearing the Public Prosecutor, by the impugned judgment and order convicted the appellant for the offences punishable under Sections 363, 376 (2)(j)(l) IPC. Further, the Trial Court sentenced the appellant for the aforesaid offences as follows:
Convicted for Fine the offence Sentence of amount Default Sl. punishable imprisonment in Sentence No. under Rupees Section 1 363 of IPC S.I. of 3 years 10,000/- Simple imprisonment of six months 2 376 (2)(j)(l) S.I. of 10 10,000/- Simple of IPC years imprisonment of one year CRL.A.No.1067/2017 5
8. To prove its case, the prosecution relied on the evidence of PWs 1 to 15. PW1 is the father of the victim and the complainant. PW2 is the grand mother. PW3 is the aunt of the victim. PWs 2 and 3 are the alleged eye witnesses. PW4 is the victim. PW5 is the Psychologist who acted as Translator in the Court of Magistrate while recording the statement of the victim under Section 164 of Cr.P.C.
9. Since the victim was mentally challenged person, the Magistrate has taken the services of PW5 to translate her evidence by sign language. PW6 is the Doctor who examined the appellant to certify about his potency. PW7 is the Dental Surgeon who examined the victim to assess her age. PW8 is the spot mahazar witness. He did not support the prosecution case.
10. PW9 is the Gynecologist who examined PW4 and issued wound certificate Ex.P5. She deposed that the victim's hymen was ruptured and there was evidence of vaginal penetration in past. PW10 is the Radiologist who CRL.A.No.1067/2017 6 assessed the age of the victim on the basis of the radiology report. PW11 is the Headmistress of the School where PW4 studied. She stated to have issued Ex.P7- Birth certificate of the victim.
11. PW12 is the Revenue Inspector who issued Ex.P8- katha extract of the scene of offence. PW13 is the Assistant Executive Engineer who drew the sketch of scene of offence as per Ex.P10. PW14 is the Police Inspector who registered the FIR. PW15 is the investigation officer.
12. The Trial Court held that the charges are proved by the evidence of the victim PW4 and her evidence was corroborated by the evidence of PWs 2 and 3, the eye witnesses and PW1. The Trial Court holds that the evidence of PWs 1 to 4 is further corroborated by the evidence of medical experts and the Police Officers. The Trial Court also holds that the evidence of the aforesaid material witnesses was not challenged by cross examination.CRL.A.No.1067/2017
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13. Even before this Court, after filing the appeal, the counsel engaged by the appellant did not turn up to conduct the matter. Since the appellant is in judicial custody, this Court appointed Sri. S.G. Chaitanya, learned counsel as Amicus Curiae to assist the Court on behalf of the appellant.
Submissions of learned Amicus Curiae are as follows:
14. The appellant was in judicial custody during the trial. The counsel engaged by him failed to defend him in trial. The State cannot take away the fundamental right of liberty of the appellant without following the due procedure of law. If the accused is in custody and is unrepresented, Sections 303 and 304 of Cr.P.C. cast a duty on the Court to assign the pleader for his defence. The Trial Court without complying Section 304 Cr.P.C and in violation of Section 303 and Article 39(A) of the Constitution has convicted the appellant. The impugned judgment and order are vitiated for want of fair trial. CRL.A.No.1067/2017 8
Submissions of learned HCGP justifying the impugned judgment and order are as follows:
15. The appellant has committed a barbaric offence against mentally challenged young girl. He had engaged his own Advocate. Despite the Trial Court allowing the application of the defence counsel to recall the witnesses, he did not appear and do the needful. Therefore, no fault can be found with the Trial Court in proceeding to hear the Prosecutor and pass the judgment.
16. Having regard to the rival submissions, the question that arises for consideration is, "Whether the impugned judgment and order of conviction is sustainable in law?"
17. Article 21 of the Constitution of India which deals with fundamental rights reads as follows:
"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."CRL.A.No.1067/2017 9
The above provision makes it clear that the State can deprive the right to life and personal liberty of a person only in accordance with the procedure established by law.
18. The procedural law with regard to the trial of a person is enumerated in Sections 303 and 304 of Cr.P.C. The said provisions read as follows:
"303. Right of person against whom proceedings are instituted to be defended:
Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.
304. Legal aid to accused at State expense in certain cases:
(1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State (2) The High Court may, with the previous approval of the State Government, make rules providing for,-
(a) the mode of selecting pleaders for defence under sub-section (1) ;
(b) the facilities to be allowed to such pleaders by the Courts;CRL.A.No.1067/2017
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(c) the fees payable to such pleaders by the Government and generally, for carrying out the purposes of sub-section (1).
(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification the provisions of sub-sections (1) and (2) shall apply it relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session."
19. The above provisions show that they give right to an accused before the criminal court to be defended by a pleader of his choice. Above provisions further show that if the Court finds that an accused is not represented by a pleader and has no sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.
20. Article 39A of the Constitution of India casts duty on the state not to deny access to justice on the ground of economic or other disabilities. Article 39A of the Constitution reads as follows:
"39A. 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 CRL.A.No.1067/2017 11 any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities."
21. To achieve the object of Article 39A of the Constitution, the Legal Services Authority Act has been enacted. Under the said Act, Legal Services Authorities are constituted right from national level to taluk level. The district courts have District Legal Services Authority and a panel of advocates for rendering legal aid to the unaffordable as contemplated under Section 304 of Cr.P.C.
22. As per the prosecution papers, at the time of filing charge sheet, the appellant was hardly aged 23 years. He was in judicial custody. Obviously he had no means to defend himself. Under such circumstances, when his advocate failed to represent him, in view of Section 304 of Cr.P.C and the aforesaid other provisions, it was mandatory for the Trial Court to refer the matter to the District Legal Services Authority for providing free legal aid to the appellant. That is evident from Section 304 of Cr.P.C. as the word 'shall' is used in the said provision. The CRL.A.No.1067/2017 12 trial was vitiated for non compliance of Section 304 Cr.P.C. and Articles 21 and 39A of the Constitution and the impugned order is unsustainable. Therefore the appeal is allowed.
The impugned order of conviction and sentence passed against the appellant are hereby set aside.
The matter is remanded to the Trial Court for fresh consideration.
The Trial Court shall assign an Advocate for the defence of the appellant as required under Section 304 of Cr.P.C.
The Trial Court shall recall PWs-1 to 5, 9, 14 and 15 and provide an opportunity to cross examine those witnesses. After such examination of the witnesses, if the trial court finds it necessary to further examine the appellant under Section 313 Cr.PC., it may do so and shall give opportunity to him to lead his defence evidence.
In examining the witnesses as aforesaid so far as victim PW4, the Trial Court shall ensure that PW4 is not CRL.A.No.1067/2017 13 called to the Court repeatedly and she shall not be exposed to any kind of humiliation.
The Trial Court shall conduct trial as expeditiously as possible in the light of the aforesaid observations and dispose of the matter afresh.
This Court places on record the able assistance of Sri S.G. Chaitanya, learned Amicus Curiae in the matter. Registry shall pay him remuneration of Rs.15,000/-.
Registry shall transmit a copy of the order and records to the Trial Court forthwith.
Sd/-
JUDGE tsn*