Sri. Srinivasa vs State

B.V. Pinto, J.—This appeal is filed challenging the judgment dated 10.09.2004 passed by the Second Additional District/Sessions Judge, Kolar in S.C. No. 178/2002 convicting the Appellant for the offences punishable under Sections 448, 306, 376 IPC read with Section. 511 IPC and Section 3(1)(XI) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act 1989 and sentencing him to suffer S.I. for 3 months and to pay a fine of Rs. 500/- for the offence u/s 448 IPC, further sentencing him to undergo R.I. for 5 years and to pay a fine of Rs. 5,000/- for the offence u/s 306 IPC, further, sentencing him to undergo R.I. for 3 years and 6 months and to pay a fine of Rs. 2,000/- for the offence u/s 376 IPC read with Section 511 IPC and further sentencing him to undergo R.I. for 4 years and to pay a One of Rs. 4,000/- for the offence u/s 3(1)(XI) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act 1989 with the default clauses.

It is the case of the prosecution, that on 06.10.2001 at about. 9.30 p.m., in Harijan colony of Agalagurki village, the accused attempted to commit rape on the victim Lakshminarasamma and in this connection, he has criminally trespassed into the house of said women at about 9.30 p.m., and thereafter, as a result of such attempt to commit rape on her, the deceased had committed suicide, thereby, he is alleged to have committed offences under Sections 448, 376, 306 IPC read with Section 511 IPC. It is further alleged that the deceased Lakshminarasamma being the member of scheduled caste community, the accused intentionally insulted, intimidated and humiliated the deceased Lakshminarasamma and tried to commit rape on her thereafter, she has committed suicide by hanging herself in her own house and thereby, the accused is alleged to have committed an offence u/s 3(1)(XI) of Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act 1989.

In order to prove the case, prosecution has examined in all 10 witnesses and got marked Exs.P. 1 to 13 and produced MOs. 1 to 7.

The defense of the accused was one of total denial. Thereafter, the prosecution addressed the arguments and by judgment impugned in this appeal, the learned Sessions Judge was pleased to convict the accused and sentenced him as herein before mentioned.

Heard Sri Vishweswaraiah, learned Counsel for the Appellant and Sri Vijaya Kumar Majage, learned HCGP for the Respondent State.

At the outset it is seen that PW. 1 by name Ramappa who is the complainant before the police and PW.2 Venugopala have not been cross-examined at all and their evidence remained unchallenged. The learned Sessions Judge in para No. 23 of his judgment has observed that evidence of P Ws. 1 to 3 corroborates with each other. It has to be observed that the accused or his Counsel did not come forward to cross-examine P Ws.1 and 2 on 27.06.2003. The learned Sessions Judge has observed that the accused persons were given an opportunity to cross-examine the witnesses and that they were also not ready to cross-examine the witnesses and the cross-examination is taken as nil. In a criminal proceedings, more particularly of the nature of the one which is on hand, many complicated issues have to be determined and a layman is unable to handle his own case. Therefore, provisions are made to provide legal assistance to those who are unable to secure a lawyer of their own. The procedure adopted by the learned Sessions Judge is contrary to law. It was the duty of the learned Sessions Judge to appoint a lawyer practicing in the criminal side to defend the accused and to allow such advocate to cross-examine on behalf of the accused. Having not done so, the important fundamental right of the accused to get himself defended is violated and therefore, the judgment of conviction deserves to be set aside and the matter deserves to be remanded for fresh disposal in accordance with law. Accordingly, the judgment passed in this case is set, aside and the following:

ORDER

The learned Sessions Judge is directed to take this case on file on priority basis on receipt of the records from this Court and thereafter, summon the accused and permit him to engage a lawyer. If the accused does not engage any lawyer, the learned Sessions Judge is directed to appoint a Counsel to appear for the accused at the State expense and thereafter, permit for cross-examination of P Ws. 1 and 2 and decide the matter based on the evidence on record and in accordance with law. If the accused does not co-operate or tend to evade, the learned Sessions Judge is directed to keep the accused in custody till the disposal of the case even though there is any earlier bail granted by this Court. The Sessions Judge shall dispose of the matter within 30.06.2011. It has to be observed that this remand is only in respect of the cross-examination of P Ws. 1 and 2 and passing a fresh judgment on the basis of the evidence including the evidence so adduced.

It is submitted by the learned Counsel for the Appellant that this case comes within the jurisdiction of the Sessions Court at Chickaballapur. Hence, office is directed to transmit the lower court records to the Session Court at Chickaballapur and the matter is posted for the appearance of the Appellant on 25.04.2011, on which day, the Appellant is directed to appear before the Court. If he does not appear on that day, the trial Court is directed to issue non-bailable warrant to the accused, secure him forthwith and proceed with the matter in accordance with law and as directed herein above.