R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE23D DAY OF DECEMBER, 2020 PRESENT THE HON' BLE MR. JUSTICE B. VEERAPPA AND THE HON’BLE MR. JUSTICE K.NATARAJAN CRIMINAL APPEAL No.1459/2019 BETWEEN: GOVINDARAJU @ KUTTI S/O BALA, AGED ABOUT22YEARS, R/AT NEAR MARIYAMMA TEMPLE, 3RD CROSS, SATHYANAGAR, MARUTHISEVANAGAR, POST, BANGALORE-560033. ...APPELLANT (BY SRI RAMACHANDRA R NAIK, ADVOCATE) AND: THE STATE OF KARNATAKA BY BANASWADI POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT BUILDING, AMBEDKAR VEEDHI, BANGALORE-560001. …RESPONDENT (BY SRI VINAYAKA V.S., HCGP) 2 THIS CRIMINAL APPEAL IS FILED UNDER SECTION3742) OF THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET ASIDE THE
JUDGMENTOF CONVICTION AND
ORDEROF SENTENCE DATED1403.2018 PASSED BY THE LEARNED LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE IN S.C. No.527/2016, IN THE INTEREST OF JUSTICE AND EQUITY. THIS CRIMINAL APPEAL IS COMING ON FOR
ORDERS THIS DAY, B.VEERAPPA, J, DELIVERED THE FOLLOWING:
JUDGMENT
The appellant – accused filed the present criminal appeal against the judgment of conviction and order of sentence dated 14.3.2018 made in Special CC No.527/2016 on the file of the LIII Addl. City Civil & Sessions Judge, Bangalore, convicting the accused for the offences punishable under Sections 448 and 376 of IPC r/w Section 5(j)(ii) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’ for short) and sentencing him to undergo imprisonment for life with fine of Rs.50,000/-.
2. This Court by the order dated 20.2.2020 admitted the present criminal appeal. Today, when the matter came up for 3 consideration of I.A. No.2/2019 for suspension of sentence and bail, learned counsel for the appellant – accused pointed out that there was no opportunity to cross-examine any of the prosecution witnesses by the defence/accused before the trial Court. Therefore, with the consent of learned counsel for the appellant as well as learned HCGP for the respondent – State, the matter is taken up for final disposal. I FACTS OF THE CASE3 It is the case of the prosecution that the accused being neighbour of the victim/complainant (PW.1) having acquainted with the victim, who was then studying in 8th Standard, started persuading her on the way to her school by following her and telling that he likes her very much and he will take care of her nicely and insisted her that he will marry her. About 2 ½ months prior to 3.9.2016 i.e., on Saturday when the victim returned from school at about 1 p.m. in the afternoon and changing her uniform, accused trespassed into her house and committed forcible sexual intercourse with her by hugging her tightly, taking advantage of the absence of other family members of her house. It is further 4 alleged that the accused committed similar act of forcible sexual intercourse on victim several times in her house. Due to this act of the accused, the victim became pregnant and thereby alleged to have committed offences stated supra.
4. Based on the complaint of mother of the victim, the jurisdictional Police registered case and after completion of investigation filed the final report against the accused. The Special Court has taken the cognizance and framed the charge for the offences punishable under Sections 448 and 376 of IPC r/w Section 5(j)(ii) r/w Section 6 of the POCSO Act. The same was read over to the accused, who pleaded not guilty and claimed to be tried. II WITNESSESS EXAMINED AND DOCUMENTS RELIED UPON BY THE PROSECUTION5 In order to prove the guilt of the accused, the prosecution in all examined 8 witnesses as PWs.1 to 8 and got marked the material documents – Ex.P1 to Ex.9. The accused has not chosen to lead any defence evidence nor got marked any documents and also not cross examined the prosecution witnesses. 5
6. After completion of evidence of the prosecution witnesses, the statement of the accused as contemplated under the provisions of Section 313 of the Code of Criminal Procedure was recorded by the learned Sessions Judge. The accused denied all the incriminating evidence adduced against him and also the case set up by the prosecution. III FINDINGS RECORDED BY THE LEARNED SESSIONS JUDGE7 The learned Sessions Judge formulated two points for consideration and considering both the oral and documentary evidence on record, by the impugned judgment of conviction recorded a finding that the prosecution has proved that the accused being neighbour of victim (PW.1) having acquainted with the victim, trespassed into her house with an intent to commit sexual intercourse with her and thereby committed the offence punishable under Section 448 of IPC. The learned Sessions Judge further recorded a finding that the prosecution has proved that on the 6 relevant day, when she came from the school in the after noon and changing her dress in the house, accused forcibly entered the house by pushing the main door, which was not properly locked and dragged her to room and committed forcible sexual intercourse with her against her will and further, the accused repeated the same many times and made her to become pregnant and thereby committed the offence punishable under section 376 of IPC r/w Section 5(j)(ii) r/w section 6 of POCSO Act. Accordingly, the learned Sessions Judge proceeded to convict and sentence the accused for the offences punishable under Sections 448 and 376 of IPC r/w Section 5(j)(ii) r/w Section 6 of the POCSO Act. Hence, the present criminal appeal is filed by the appellant - accused.
8. We have heard the learned counsel for the parties. IV ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE APPELLANT/ACCUSED9 Sri Ramachandra R Naik, learned counsel for the appellant mainly contended that the impugned judgment of conviction and order of sentence passed by the trial Court is against the right to fair trial guaranteed under Article 21 of the Constitution of India. He 7 further contended that after examination-in-chief of the prosecution witnesses, no proper opportunity was provided to the accused to cross-examine any of the prosecution witnesses, thereby a right of opportunity is deprived and the learned Sessions Judge has violated the provisions of Article 22(1) of the Constitution of India and Section 304 of the Code of Criminal Procedure. Therefore, he sought to allow the appeal by setting aside the impugned judgment of conviction and to remand the matter to Trial Court only to provide fair trial. V ARGUMENTS ADVANCED BY THE LEARNED HCGP10 Per contra, Sri Vinayaka V.S., learned HCGP for the respondent-State, has not disputed the fact that after the examination-in-chief of the prosecution witnesses was over, the defence has not cross-examined any of the prosecution witnesses. He submits that though opportunity was given, the accused has not availed the opportunity and therefore, the learned Sessions Judge proceeded to close the cross-examination by taking as cross examination NIL. Therefore, he sought to dispose off the appeal. 8 VI POINT FOR DETERMINATION11 In view of the aforesaid rival contentions urged by the learned counsel for the parties, the only point that arises for our consideration in the present criminal appeal is: “Whether accused has made out a case to remand the matter to the trial Court for providing an opportunity to him to cross-examine the prosecution witnesses, in the facts and circumstances of the present case?.
12. We have given our anxious consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully. VII CONSIDERATION13 On careful perusal of the Trial Court Records including the order sheet maintained by the trial Court as well as depositions of the prosecution witnesses i.e., PWs.1 to 8, it clearly depicts that when the matter was posted for cross-examination of the 9 prosecution witnesses, learned counsel for the accused was absent and he did not defend the accused. Though the trial Court provided an opportunity to the accused to contact his Lawyer over mobile, he has not utilized the same during trial. However, when the matter was posted for judgment to 14.3.2018, an application was filed by the learned counsel for the accused under Section 311 of the Code of Criminal procedure on 9.3.2018 to permit the accused for cross-examination of prosecution witnesses. But, the trial Court rejected the said application ignoring the fact that the accused would undoubtedly have a right to cross-examine the prosecution witnesses once their evidence is recorded by trial Judge. Based on the chief-examination of the prosecution witnesses as well as the provisions of the POCSO Act, the learned Sessions Judge proceeded to pass the impugned judgment of conviction and order of sentence against the accused. But, the fact remains that the trial Court has erred in not affording an opportunity to the accused to cross-examine the prosecution witnesses by providing free legal assistance. 10
14. 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 SCC461 wherein 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 11 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 contained 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 12 power should be made judicially and also with extreme care and caution.
17. 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. 13
17.5. The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, 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 14 that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the court should be magnanimous 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 15 same must be exercised with care, caution 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.
15. 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. By a careful reading of the above provisions, 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’. Our view is fortified by the dictum of the Hon’ble Apex Court in the case of Commissioner of Police, Delhi and another –vs- 16 Registrar, Delhi High Court reported in AIR1997SC95 wherein the Hon’ble Supreme Court at paragraph 15 held as under:
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 17 Jethmalani AIR1979SC468at
470) had to say: (SCC p. 170, para
5) “… 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 18 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:
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, 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’ as held by the Hon’ble Supreme Court in the case of State of M.P –vs- Shobharam and others reported in AIR1966SC1910 wherein the Hon’ble Supreme Court at paragraph-23 held as under:
19. 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 than 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.
17. The provisions of Article 39A of the Constitution of India reads as under:
20. 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 securing justice are not denied to any citizen by reason of economic or other disabilities. 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 AIR1990SC2140 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 21 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.
18. The provisions of Article 21 of the Constitution of India commands in emphatic terms that ‘no person shall be deprived of his life or personal liberty except according to the procedure established by law’. The provisions of Article 22(1) of the Constitution of India confers on the person charged to be defended by a legal practitioner of his choice. Article 39A of the Constitution of India casts duty on the State to ensure that justice is not denied by reason of economic or other disabilities in the legal system and to provide free legal aid to every citizen with economic or other disabilities.
19. The provisions of Sections 303 and 304 of Cr.P.C. reads as under :- 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 22 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 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 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 in relation to any class of trials before other 23 Courts in the State as they apply in relation to trials before Courts of Session. 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.
20. On careful reading of the aforesaid provisions of the Constitution of India and the Code of Criminal Procedure, a fair trial is the main object of the criminal procedure and it is the duty of the Court to 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 to fair trial.
21. 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 SCC593 held at paragraphs 18 to 23 as under:
24. 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 SCC408: (2012) 3 SCC (Cri) 1139]. while dealing with the powers of the appellate court to order a 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 25 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 can 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 SCC699:
26. (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 cases 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 SCC481 , where the trial 27 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 RLW135 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 RLW135 in the following terms: “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 28 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 SCC481 , 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 discharge 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 29 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 which 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 30 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.
22. 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 31 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 SCC163: (2018) 2 SCC (Cri) 458]. , it would be appropriate for the learned trial Judge to ensure that the evidence of PW3and PW4is recorded in a child friendly environment.
22. We have come across several cases, wherein the trial Courts during trial when the accused 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 counsel for the defence 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 32 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 counsel or it is the duty of the Court to ensure to provide free legal assistance to the accused by appointing advocate from the Legal Services Authority, in order to provide fair trial.
23. In some of the criminal cases, the accused might be in judicial custody or might be suffering from poverty or similar circumstances and not able to engage counsel on his behalf. In those circumstances, the Court should act as Societal parents and ensure fair trial is provided before passing the judgment of conviction and order of sentence against the accused persons. Because of the mistake committed by the learned counsel for the accused, the accused should not be denied opportunity to cross- examine the prosecution witnesses. Providing a legal assistance is a constitutional mandate under Articles 21, 22(1) and 39A of the Constitution of India and further, Section 304 of the Code of Criminal Procedure provides for legal assistance to an accused on State expenditure. 33
24. In view of the above, in the present case, the trial Court is not justified in convicting accused without providing an opportunity to the accused to cross-examine the prosecution witnesses, which is nothing but denial of fair trial.
25. Our view is fortified by the dictum of the Hon’ble Supreme Court in the case of Ashok Debbarma v. State of Tripura reported in (2014)4 SCC747 wherein the Hon’ble Supreme Court held at paragraphs 35 to 38 as under: “35. Can the counsel's ineffectiveness in conducting a criminal trial for the defence, if established, be a mitigating circumstance favouring the accused, especially to escape from the award of death sentence. The counsel for the appellant, without causing any aspersion to the defence counsel appeared for the accused, but to only save the accused from the gallows, pointed out that the records would indicate that the accused was not meted out with effective legal assistance. The learned counsel submitted that the defence counsel failed to cross-examine PW1and few other witnesses. Further, it was pointed out that the counsel also should not have cross-examined PW17 34 since he was not put to chief-examination. The learned counsel submitted that the appellant, a tribal, coming from very poor circumstances, could not have engaged a competent defence lawyer to conduct a case on his behalf. Placing reliance on the judgment of the US Supreme Court in Strickland v. Washington [80 L Ed 2d 674 :
466. US668(1984)]. , the learned counsel pointed out that, under Article 21 of our Constitution, it is a legal right of the accused to have a fair trial, which the accused was deprived of.
36. Right to get proper and competent assistance is the facet of fair trial. This Court in M.H. Hoskot v. State of Maharashtra [(1978) 3 SCC544:
1978. SCC (Cri) 468]. , State of Haryana v. Darshana Devi [(1979) 2 SCC236, Hussainara Khatoon (4) v. State of Bihar [(1980) 1 SCC98:
1980. SCC (Cri) 40]. and Ranjan Dwivedi v. Union of India [(1983) 3 SCC307:
1983. SCC (Cri) 581]., pointed out that if the accused is unable to engage a counsel, owing to poverty or similar circumstances, trial would be vitiated unless the State offers free legal aid for his defence to engage a counsel, to whose engagement, the accused does not object. It is a constitutional guarantee conferred on the accused persons under Article 22(1) of the Constitution. Section 304 CrPC provides for legal assistance to the accused on State expenditure. Apart from the statutory 35 provisions contained in Article 22(1) and Section 304 CrPC, in Hussainara Khatoon (4) case [(1980) 1 SCC98:
1980. SCC (Cri) 40]. , this Court has held that: (SCC p. 105, para 7). “7. … This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation….
37. The question raised, in this case, is with regard to ineffective legal assistance which, according to the counsel, caused prejudice to the accused and, hence, the same may be treated as a mitigating circumstance while awarding sentence. A few circumstances pointed out to show ineffective legal assistance are as follows: (1) Failure to cross-examine PW1 the injured first informant which, according to the counsel, is a strong circumstance of “ineffective legal assistance”. (2) The omission to point out the decision of this Court in Dalbir Singh [State of Punjab v. Dalbir Singh, (2012) 3 SCC346: (2012) 2 SCC (Cri) 143]. , wherein this Court held that Section 27(3) of the Arms Act was 36 unconstitutional, was a serious omission of “ineffective legal advice”, at the trial stage, even though the High Court has found the appellant not guilty under Section 27 of the Arms Act, 1959. (3) Ventured to cross-examine PW17 who was not put to chief examination.
38. Right to get proper legal assistance plays a crucial role in adversarial system, since access to counsel's skill and knowledge is necessary to accord the accused an ample opportunity to meet the case of the prosecution. In Strickland case [Strickland v. Washington, 80 L Ed 2d 674 :
466. US668(1984)]. , the US Court held that a convicted defendant alleging ineffective assistance of counsel must show not only that counsel was not functioning as the counsel guaranteed by the Sixth Amendment so as to provide reasonable effective assistance, but also that counsel's errors were so serious as to deprive the defendant of a fair trial. The Court held that the defiant convict should also show that because of a reasonable probability, but for counsel's unprofessional errors, the results would have been different. The Court also held as follows: (L Ed p.
682) “… Judicial scrutiny of counsel's performance must be highly deferential, and 37 a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. A court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. These standards require no special amplification in order to define counsel's duty to investigate, the duty at issue in this case.
26. For the reasons stated above and in the light of the principles enunciated in the dictums of the Hon’ble Supreme Court stated supra, we answer the point raised in the present criminal appeal in the affirmative holding that the appellant - accused has made out a case to remand the matter to the trial Court for providing an opportunity to him to cross-examine the prosecution witnesses, in order to fulfill the constitutional mandate as provided under Articles 21, 22(1) and Article 39A of the Constitution of India 38 as well as the provisions of Sections 303 and 304 of the Code of Criminal Procedure.
27. Accordingly, we pass the following:
ORDERi. Criminal Appeal filed by the appellant - accused is allowed. ii. The impugned judgment of conviction and order of sentence dated 14.3.2018 made in Spl.C.C. No.527/2016 on the file of the LIII Additional City Civil & Sessions Judge, Bengaluru, is hereby set aside and 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 all the prosecution witnesses and dispose off the matter after providing fair trial, in accordance with law. iii. It is made clear that if the appellant - accused is unable to engage the services of a counsel, it is the duty of the trial Court to provide legal assistance to the accused by appointing an Advocate from the Legal Services Authority, in order to provide fair trial to fulfill the constitutional obligations and the 39 provisions of the Code of Criminal Procedure stated supra. iv. As the crime is of the year 2016, 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 of the matter and the trial Court shall dispose off the matter after providing opportunity to the accused to cross-examine the prosecution witnesses as stated supra, in accordance with law.
28. Since the main appeal is disposed off, I.A. No.2/2019 does not survive for consideration. Accordingly, I.A. No.2/2019 stands dismissed.
29. The Registry is directed to send copy of this judgment to all the Principal District Judges in the State with a request to circulate the same among all the Judicial Officers working in their Units to ensure that sufficient opportunity shall be provided to the 40 accused to cross-examine the prosecution witnesses in order to provide fair trial to fulfill the constitutional mandate as well as the provisions of the Code of Criminal Procedure stated supra, strictly in accordance with law. Sd/- JUDGE Sd/- JUDGE Gss*