Karnataka High Court
Govindanaika vs The State Of Karnataka on 30 January, 2024
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CRL.A No.360/2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JANUARY, 2024
PRESENT
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
AND
THE HON'BLE MR JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.360/2017 (C)
BETWEEN:
GOVINDANAIKA
S/O LATE VENKATESH NAYAKA
AGED ABOUT 27 YEARS
MASON
R/AT PALAVALLI THANDA
PAVAGADA
TUMKUR DISTRICT ...APPELLANT
(BY SRI DINESH KUMAR K RAO, ADVOCATE)
AND:
THE STATE OF KARNATAKA
Digitally BY C.P.I PAVAGADA POLICE STATION
signed by K S REP. BY STATE PUBLIC PROSECUTOR
RENUKAMBA HIGH COURT BUILDING
Location: BANGALORE - 560 001 ...RESPONDENT
High Court of
Karnataka
(BY SRI VIJAYAKUMAR MAJAGE, SPP-II)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2)
CR.P.C PRAYING TO SET ASIDE THE JUDGMENT AND ORDER OF
CONVICTION AND SENTENCE DATED 20.01.2017 PASSED BY THE
IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI IN
S.C.NO.5032/2016 - CONVICTING THE APPELLANT/ACCUSED FOR
THE OFFENCES PUNISHABLE UNDER SECTIONS 302 AND 201 OF
IPC.
THIS CRIMINAL APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, K.S.MUDAGAL J., DELIVERED THE FOLLOWING:
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CRL.A No.360/2017
JUDGMENT
Heard.
2. Challenging the judgment and order of conviction and sentence passed against him, the accused in S.C.No.5032/2016 on the file of IV Additional District & Sessions Judge, Madhugiri has preferred this appeal.
3. The appellant was prosecuted in the said case for the offences punishable under Sections 302 and 201 of IPC on the basis of the charge sheet filed by Pavagada police in Crime No.202/2015 of their police station. For the purpose of convenience, the parties are referred to henceforth according to their ranks before the trial Court.
4. The case of the prosecution in brief is as follows:
(i) The victim Rajappa had lent money to the accused. The accused did not repay the money. Therefore the deceased was abusing him and annoying him, talking offensively of his wife. Therefore the accused planned to commit murder of Rajappa. In execution of such conspiracy on 23.11.2015 at about 1.15 p.m. the accused phoned Rajappa and called him to SBM Bank, Pavagada in the guise of repaying the money. From there he took Rajappa on -3- NC: 2024:KHC:4047-DB CRL.A No.360/2017 the motorbike bearing registration No.KA-06-EH-4860 to Roddam forest area of Andhra Pradesh. There he assaulted Rajappa with chopper MO.13 and committed his murder.
Then he robbed the gold neck chain, finger ring, cell phone and cash of Rs.30,000/- from the dead body of Rajappa.
(ii) To screen the evidence of the offence, the accused threw the dead body in the forest area between the bushes and then escaped with motorbike of Rajappa.
5. Since Rajappa did not return, PW.1 nephew of Rajappa filed missing complaint before the police as per Ex.P37. When the relatives were in search of Rajappa, his dead body was traced by them on 03.12.2015 in forest area. Before leaving the house, the deceased had informed his daughter, PW.1 and others that accused has called him for repayment of money and he is going for that purpose. PW.13 had seen the accused and the deceased going together before Rajappa went missing.
6. After tracing the dead body, PW.1 gave another complaint as per Ex.P2 implicating the accused in the case. Based on the said complaint, the first information report Ex.P38 was registered against the accused for the offences -4- NC: 2024:KHC:4047-DB CRL.A No.360/2017 punishable under Sections 302 and 201 of IPC. On investigation, the accused was charge sheeted as aforesaid.
7. The trial Court framed the charges and tried the accused for the offences punishable under Sections 302 and 201 of IPC. In support of its case, the prosecution examined PWs.1 to 26 and got marked Exs.P1 to P40 and MOs.1 to 17.
8. The trial Court on hearing the parties by the impugned judgment and order convicted the accused for the offences punishable under Sections 302 and 201 of IPC and sentenced him to different terms of imprisonment and fine as per the table below:
Sl. Offence Sentence Fine Default
No. u/s Amount in sentence
Rs.
1 302 of IPC Imprisonment 30,000/- SI of 3 years
for life
2 201 of IPC SI of 6 years 5,000/- SI of 1½ years
9. The trial Court held that though the case was based on the circumstantial evidence, the circumstances set up by the prosecution namely motive for the murder, the accused and the deceased were last seen together and recovery of incriminating articles at the instance of the accused were proved beyond reasonable doubt. The trial -5- NC: 2024:KHC:4047-DB CRL.A No.360/2017 Court has held that the death was homicidal one and the accused was the perpetrator of the crime.
10. Sri Dinesh Kumar K.Rao, learned Counsel for the accused submits that though the accused was in judicial custody, his Counsel did not turn up to cross-examine the prosecution witnesses namely PWs.13 to 15. The trial Court did not give him free legal aid to cross-examine them. He submits that the trial Court in holding that the motive and last seen circumstances were proved relied on the evidence of PWs.13 to 15, thereby the accused is convicted without fair trial in violation of Section 304 of Cr.P.C. and Articles 21 and 39A of the Constitution of India. Hence he submits that the impugned judgment and order is liable to be set aside.
11. Per contra, Sri Vijayakumar Majage, learned SPP-II submits that despite giving sufficient opportunity, defence counsel did not cross-examine PWs.13 to 15. The accused did not seek free legal aid before the trial Court. Therefore the trial Court was justified in proceeding with the matter. He further submits that even if the evidence of PWs.13 to 15 is eschewed, there is sufficient material to sustain conviction of the accused. Therefore there are no -6- NC: 2024:KHC:4047-DB CRL.A No.360/2017 grounds to interfere with the impugned judgment and order of conviction and sentence.
12. Considering the submissions of both side and materials on record, the question that arises for consideration of this Court is "Whether the impugned judgment and order of conviction and sentence is sustainable in law"?
Analysis
13. There is no dispute so far as death of Rajappa and his dead body being found in Roddam forest area. There are no eyewitnesses to the incident. The case was based on the circumstantial evidence. The circumstances relied by the prosecution were as follows:
(i) Motive-that there was ill-will between the accused and the deceased regarding money transaction between them;
(ii) The accused and the deceased were last seen together, thereafter the victim was found dead with homicidal injuries;
(iii) The recovery of the belongings of the deceased from the custody of the accused on the basis of his voluntary statement;-7-
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(iv) The recovery of blood stained clothes of the accused from the custody of the accused based on his voluntary statement;
(v) The recovery of blood stained clothes of the deceased;
(vi) Medical evidence;
(vii) The evidence of forensic expert; &
(viii) The evidence of official witnesses.
14. The genesis of the case of the prosecution is that there was money transaction between the accused and the deceased, the deceased had humiliated the accused for his default in repayment of the loan. The second fact was that the accused and the deceased were last seen together. The trial Court in paras 42 to 46 of its judgment relying on the evidence of PWs.13 to 15 holds that their evidence proves the circumstances that the accused and the deceased were last seen together and there was ill-will between the accused and the deceased due to money transactions between them. The trial Court further holds that their evidence shows that the accused summoned the deceased in the pretext of repaying loan amount and took him to the isolated forest -8- NC: 2024:KHC:4047-DB CRL.A No.360/2017 area, committed his murder and robbed his valuables along with the vehicle.
15. Importantly, PWs.13 to 15 were not cross- examined by the defence Counsel. During trial, the accused was in judicial custody. Article 21 of the Constitution of India states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Articles 39A of the Constitution of India speaks of equal justice and free legal aid which 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 any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities."
16. Reading of the above provision shows that the State has duty to secure that the operation of the legal system promotes justice on the basis of equal opportunity and for that purpose provide free legal aid who are in need of the same. It further says that no person shall be denied of the opportunity of securing equal justice by reason of economic or other disabilities.
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17. The Criminal Procedure Code is the law which prescribes the procedure for deprivation of the liberty of an accused person. Section 304 of Cr.P.C. speaks of the duty of the Court towards an undefended accused. The said provision reads as follows:
"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 it 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;
(c) the fee 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 in relation to any class of trials before other Courts in the State as they apply in relation to trials before the Courts of Session."
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NC: 2024:KHC:4047-DB CRL.A No.360/2017 Reading of the above provision shows that when the accused is not represented by pleader and if he has no sufficient means to engage pleader then Court shall assign a pleader for his defence. The language used is "shall". Therefore it is mandatory for the Court to assign pleader to the defence of the accused at the expense of the State.
18. Apparently in the present case as the accused is in judicial custody, he had disability of contacting any advocate or engage them to defend him. The advocate whom he had engaged had forsaken him by not examining PWs.13 to 15. Therefore the trial Court was duty bound to provide free legal aid to the accused for his effective defence. By not doing that, the trial Court acted contrary to the provisions of Section 304 of Cr.P.C., thereby equal opportunity of the accused to access justice has been deprived which amounts to violation of Articles 21 and 39A of the Constitution of India.
19. In the similar circumstances, the Hon'ble Supreme Court in the judgment in Rajoo v. State of M.P.1 held that when the accused was not given free legal aid, 1 (2012) 8 SCC 553
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NC: 2024:KHC:4047-DB CRL.A No.360/2017 though was in custody, his fundamental right under Article 21 of the Constitution was violated and the trial got vitiated. The judgment and order of conviction and sentence were set aside and the matter was remanded to the trial Court for fresh consideration.
20. In the present case also, since the accused was not given equal opportunity for his defence during the evidence of PWs.13 to 15 and the judgment was rendered based on the evidence of the same witnesses, the trial was vitiated. Therefore the impugned judgment and order of conviction and sentence are liable to be set aside. The trial was held in the year 2016. All other witnesses were examined and cross-examined by the defence Counsel, except PWs.13 to 15. Considering the aforesaid facts and circumstances, pendency of the case for all these years and the contention of the accused, it is necessary to issue certain directions regarding examination of the witnesses in time bound manner. The appeal deserves to be allowed accordingly. Hence, the following:
ORDER The appeal is allowed.
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NC: 2024:KHC:4047-DB CRL.A No.360/2017 The impugned judgment and order of conviction and sentence in S.C.No.5032/2016 passed by IV Additional District & Sessions Judge, Madhugiri is hereby set aside.
The matter is remanded to the trial Court for giving opportunity to the accused for cross-examination of PWs.13 to 15.
The prison authorities are hereby directed to produce the accused before the trial Court on 20.02.2024. On such production of the accused, the trial Court shall ascertain whether the accused is capable/willing to engage his own Counsel. Otherwise, trial Court shall provide him free legal aid through the jurisdictional legal services authorities.
Then the trial Court shall summon PWs.13 to 15 for their cross-examination. After their evidence the trial Court shall hear the parties and dispose of the matter afresh in accordance with law.
The said exercise shall be done within three months from the date of appearance of the accused before the trial Court.
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NC: 2024:KHC:4047-DB CRL.A No.360/2017 Communicate copy of this order to the concerned prison and the trial Court.
Resubmit the records to the trial Court forthwith.
Sd/-
JUDGE Sd/-
JUDGE KSR List No.: 1 Sl No.: 9