ORDER : The case of the prosecution is that, on 19.12.2007 at about 8.15 a.m., one Govindashetty, son of Sriramulu Shetty, resident of S.S. Ghati Taluk, Subramanya Temple, Ghati Subramanya Taluk, Doddaballapura, lodged a written complaint before the Doddaballapura Rural Police Station. 2. The case of the prosecution is that the complainant-Govindashetty was running a shop, for selling flowers and pooja materials at S.S. Ghati in the premises of Shri Ghati Subramanya Temple. That he and his father, were looking after the Arya Vysya Choultry situated in the said S. S. Ghati, just behind his shop. That on 18.12.2007 at about 3.30 p.m., while the complainant was near the said choultry, two women came to him and asked for a room for rent in the choultry. He told them that, no rooms are available. Thereafter both of them went away. After some time, they both came and pleaded, to give them a room atleast for half an hour, to facilitate them to have a bath and to change their dress for the purpose of visiting the temple. At such request, the complainant gave them the key of Room No.5, asking them to pay Rs.100/- towards room rent and Rs.50/- towards deposit. He collected Rs.150/- and handed over to them, the key to Room No.5. He handed over the room key to one of them, who was aged about 40 years wearing spectacles, who stated her name to be Savithramma, resident of Triveni Road, Yeshwanthpur, Bengaluru. The other woman, was aged about 30 years and was fair looking. On the same day, evening the complainant went to the Choultry to check the rooms. He found that Room No.5 was locked with a different lock, other than the one he had provided to them. On suspicion, he opened the window pane and found that the light of the room was on and a woman was lying with her face up. The complainant suspecting some foul play, secured his workman by name Chandrashekar and they together broke open the lock. They found the woman aged about 30 years, lying in the room with a wire around her neck. She was dead. The other woman namely Savithramma, who came with the deceased, was missing. The complainant informed the Secretary of the Choultry and thereafter came over to the jurisdictional police station on the next day morning and lodged a complaint. They found the woman aged about 30 years, lying in the room with a wire around her neck. She was dead. The other woman namely Savithramma, who came with the deceased, was missing. The complainant informed the Secretary of the Choultry and thereafter came over to the jurisdictional police station on the next day morning and lodged a complaint. Based on his complaint, a case was registered in Crime No.192 of 2007 under Section 302 of IPC and the Investigation was taken-up. 3. The further investigation was taken over by the Circle Inspector of Police, Doddaballapura District. During the course of investigation, the Investigating Officer secured the husband of the deceased who identified the dead body. On 31.12.2007, the Investigating Officer received information that the accused in this case has been arrested by Kalasipalya Police and jewellary and cash robbed by her in this case have been recovered on 29.01.2008. The Investigating Officer received the relevant records along with properties, pertaining to this case from the Kalasipalya Police. On completion of investigation, a chargesheet was filed. The accused was charged under Sections 392 and 302 of IPC. The accused pleaded not guilty and claimed to be tried. 4. In order to prove its case, the prosecution examined 12 witnesses, marked 13 Exhibits along with 13 Material Objects. 5. The trial Court convicted the accused for the offences punishable under Sections 302 and 392 of IPC. She was sentenced to death for the offence punishable under Section 302 of IPC and sentenced to undergo Rigorous Imprisonment for five years and to pay a fine of Rs.5,000/- for the offence punishable under Section 392 of IPC and in default of payment of fine, to undergo further Rigorous Imprisonment for one year. 6. On a reference being made by the trial Court, Criminal Referred Case No.2 of 2012 had been registered before this Court. The Accused has filed Criminal Appeal No.631 of 2012. 7. The accused is defended by Sri. Venkatesh P. Dalawai and Sri. Vijayakumar Majage, learned Additional S.P.P. appears on behalf of the State. 8. Learned counsel appearing for the accused contends that the order passed by the trial Court is erroneous and liable to be set aside. That the trial Court has failed to consider the relevant material on record. That the trial Court has misread the evidence while convicting the accused. Therefore, he seeks for an acquittal. 9. 8. Learned counsel appearing for the accused contends that the order passed by the trial Court is erroneous and liable to be set aside. That the trial Court has failed to consider the relevant material on record. That the trial Court has misread the evidence while convicting the accused. Therefore, he seeks for an acquittal. 9. On the other hand, the learned SPP disputes the same. He contends that a heinous offence has been committed by the accused. That the accused was involved in a series of cases. The modus operandi adopted by the accused herein is similar to the various other cases in which she is involved. The accused administered cyanide and killed the woman by robbing jewels and cash from her and escaped. The trial Court having considered the entire material on record has rightly convicted the accused and sentenced her to death. The accused is a serial killer being involved in as many as five other cases and therefore, imposition of death sentence is just and appropriate. 10. Heard learned counsels and examined the records. 11(a) The primary contention of the accused, is that the evidence on record is not sufficient to convict the accused, in particular the evidence of PW.8, the Doctor, who conducted the post-mortem examination and submitted the post-mortem report with regard to the deceased. In his evidence, the Doctor-PW.8 has stated that, on examination of the dead body, he found that, the dead body is of a 30 year old female, moderately built and well-nourished with a height of 5 feet 3 inches, eyes closed, tongue protruded and bitten, Bluish disclolouration of face etc. Rigour mortis was present in the lower limbs and absent in the upper limbs. Three ligature marks were seen around the neck (Plastic tape recorder wire, one twain thread and one more thread seen around the neck) measuring 13.5 inches x 4 mm x 1.5 mm around the neck above the thyroid cartilage; Abrasion seen on the back of the right fingers. The evidence was recorded on 09.09.2011. Since the Advocate for the accused was absent, the witness was bound over. Thereafter, nothing happened. The court did not summon the witness for Cross-examination. Therefore, the accused could not cross-examine the said witness –Doctor (PW.8). In the absence of cross- examination, the evidence of the PW.8-Doctor cannot be considered as evidence by the trial Court. Since the Advocate for the accused was absent, the witness was bound over. Thereafter, nothing happened. The court did not summon the witness for Cross-examination. Therefore, the accused could not cross-examine the said witness –Doctor (PW.8). In the absence of cross- examination, the evidence of the PW.8-Doctor cannot be considered as evidence by the trial Court. It is his contention that, based on the charges levelled against the accused, the evidence of PW.8-Doctor becomes extremely crucial. The charge under Section 302 of IPC is for having committed the murder of the deceased. Therefore, the accused is entitled to cross-examine PW.8- Doctor. In the absence of cross-examination, the evidence cannot be looked into and if the evidence of the Doctor cannot be looked into, no conviction would ensue. (b) In support of his contention, the learned counsel for the accused relies on the judgment of the Hon’ble Supreme Court reported in (2008) 9 SCC 329 [Basavaraja & Others Vs. State of Karnataka] In the said judgment, the Hon’ble Supreme Court found that the charges framed were on totally unfounded premises; that according to the evidence of PW.7, the death was due to smothering; that in the post-mortem report the Doctor-PW.7 has stated that the death was due to smothering. The evidence of the Doctor would show that the burn injuries were not ante-mortem in nature and were post-mortem. This part of the evidence of the Doctor was not shaken. Therefore, the charges framed, were totally on unfounded premises. That even in the examination under Section 313 of Cr.PC., with reference to the evidence of PW.7, it was stated that the death was due to smothering. Therefore, the question of the accused persons having caused death by burning, does not arise. Therefore, such casual a framing of charges under Section 313 of Cr.PC. being a disturbing feature, the conviction was set aside. By placing reliance on the aforesaid judgment, it is contended that, in the present case, due to an error in not giving an opportunity to the accused to cross-examine the Doctor (PW.8), the accused is entitled for an acquittal. (c) On the other hand, the said contention of the learned counsel for the accused, is disputed by the learned SPP. He contends that, unless the accused is able to demonstrate failure of justice, such technicalities would not come to the aid of the accused. (c) On the other hand, the said contention of the learned counsel for the accused, is disputed by the learned SPP. He contends that, unless the accused is able to demonstrate failure of justice, such technicalities would not come to the aid of the accused. He places reliance on the judgment rendered by High Court of Delhi in the case of [Tinku Ram Vs. State Reported in 2012(1) JCC 136] and contends that in the said judgment, it was held that, if the witness was not cross- examined, the deposition cannot be rejected in a stereotypical manner; if the reasons point to the unavailability of the witness for genuine reasons, beyond the prosecution control, such as death, serious illness or the witness becoming untraceable, the deposition recorded during examination in chief can be considered, provided it is complete and the court is satisfied that there are no elements in that deposition, or the record, which can shake the testimony. Therefore, the court has to adopt a cautious approach. Therefore, the learned SPP contends that, since the witness was not subjected to cross-examination, that itself cannot lead to an order of acquittal. 12. We have examined the records of the case. The order sheet would indicate that, by the order dated 09.09.2011 it was noted that CW28, was partly examined as PW.8; That due to the absence of the Advocate for the accused, PW.8 was bound over and the matter was posted to 03.10.2011. On 03.10.2011, it was noted that the Advocate appointed by the Legal Services Authority, to defend the accused, had filed a memo for retirement. The memo filed by the Advocate was accepted and he was permitted to retire from the case. A letter was addressed to the Legal Service Authority, for appointment of another Advocate. On the next hearing date i.e., on 05.10.2011, no advocate was appointed. On 29.10.2011, a new advocate was appointed, in terms of the letter of appointment by the District Legal Services Authority and thereafter the case proceeded. Therefore, the material on record would indicate, that the new advocate put his appearance only after PW.8 was bound over. There is no material to indicate whether this new advocate was even aware of the early proceedings namely, as to whether PW.8 was partially examined or bound over or otherwise. 13. Therefore, the material on record would indicate, that the new advocate put his appearance only after PW.8 was bound over. There is no material to indicate whether this new advocate was even aware of the early proceedings namely, as to whether PW.8 was partially examined or bound over or otherwise. 13. The next important fact is that the witness– PW.8, was bound over by the orders of the Court. It would mean that the accused was in the notional custody of the court. Therefore, it was for the court, to summon the witness-PW.8 and subject him to cross-examination. However, the same was not done. Therefore, it cannot be stated that the witness refused to appear. The order sheet would indicate that he was not asked to appear on any date. Therefore, one cannot find fault with the accused or the prosecutor with regard to the same. When the court has not recalled the witness-PW.8, for the purpose of cross-examination, the question of the accused cross-examining him would not arise for consideration. 14(a). At this stage, learned SPP contends that, if that were to be so, the accused could very well have filed an application under Section 311 of Cr.PC., seeking to recall the witness-PW.8. In the absence of the accused filing such an application, she cannot find fault with the manner in which the trial was conducted. On hearing the learned counsel, we are of the view that such a contention is not acceptable. Section 311 of Cr.P.C. contemplates recalling of witness for the purpose of re- examining him/her. In the instant case, the witness has not been discharged and he is still under the orders of the Court. It is the court that has not recalled him. Therefore, there is a procedural irregularity. The question of filing application under Section 311 of Cr.P.C. would arise only when the witness is discharged. Since, the witness has not been discharged, such a contention cannot be accepted. (b) The order sheet would indicate that the evidence was incomplete. The witness should have been asked to appear on a particular date in order to continue the evidence. But, the same has not been done. Therefore, as stated herein above, neither the accused nor the Prosecutor could be found fault with. On considering the Order Sheet, it is clear that there was no opportunity for the accused to cross-examine PW.8. The witness should have been asked to appear on a particular date in order to continue the evidence. But, the same has not been done. Therefore, as stated herein above, neither the accused nor the Prosecutor could be found fault with. On considering the Order Sheet, it is clear that there was no opportunity for the accused to cross-examine PW.8. Undisputedly the entire case of the prosecution, rests on the evidence of PW.8-Doctor, who alone could evidence with regard to the cause of injuries on the deceased. Unless the opinion of PW.8 was tested through the cross-examination by the accused, it would lead to failure of justice. In the absence of cross-examining PW.8- Doctor, the legal right of the accused stands infringed. As such, the accused did not have an opportunity to defend her case against the evidence led-in by the prosecution. Therefore, we are of the view that non-cross examination of PW.8-Doctor by the accused has led to failure of justice. Therefore the order of the trial Court becomes unsustainable. 15. The trial Court while convicting the accused relied upon the evidence of PW.8-Doctor while holding that the death is homicidal. Having come to the conclusion that the evidence is incomplete, we are of the view that the finding recorded by the trial Court becomes unsustainable. Even in the judgment relied upon in the case of Tinku Ram (cited supra) by the learned SPP, it is observed that the deposition cannot be rejected in a stereotypical manner. Even if the said judgment is sought to be applied, the same would not support the prosecution case. This is not a case where the witness was not subjected to cross-examination on account of non-availability or otherwise. It is the case where the witness was not called for cross-examination. Under these circumstances, rejecting his evidence in a stereotypical manner as narrated in the aforesaid judgment, would be a misconceived application of the said judgment. The principles enunciated in the said judgment are not applicable to the facts of this case. Therefore, the findings recorded by the trial Court based on the evidence of PW.8- Doctor becomes unsustainable. If such a finding becomes unsustainable, the conviction of the accused cannot be sustained. 16. The principles enunciated in the said judgment are not applicable to the facts of this case. Therefore, the findings recorded by the trial Court based on the evidence of PW.8- Doctor becomes unsustainable. If such a finding becomes unsustainable, the conviction of the accused cannot be sustained. 16. In view of the finding with regard to the infirmity in recording the evidence of PW.8-Doctor, it would be a futile exercise to consider the other contentions that have been advanced. Since the order of the trial Court is being set aside on that ground alone, consideration of the other issues would be wholly unnecessary. 17. In the circumstances, we are of the view that the matter requires to be remanded to the trial Court in order to grant an opportunity to the accused to cross- examine PW.8-Doctor. However, so far as the other evidence is concerned, we hereby clarify, that the other witnesses can be recalled for the purpose of leading any further evidence, provided the said evidence is relatable only to the extent of the cross-examination of PW.8– Doctor and no other evidence is permissible to be led-in by the prosecution. 18. In view of the long pendency of the matter, it is necessary to direct the trial Court to conclude the matter by the end of January 2018. 19. For the aforesaid reasons, we pass the following order: i. Criminal Appeal No.631 of 2012 is allowed. The judgment of conviction and the Order of Sentence dated 31.01.2012 passed in S.C. No.290/2008 by the Court of I- Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, is set aside. ii. The matter is remanded to the trial Court for cross-examination of PW.8 –Doctor. iii. Further evidence if any, would be subject to the directions as stated herein above. iv. The matter is directed to be listed before the trial Court on 30.10.2017. v. After the completion of the cross- examination of PW.8-Doctor and other evidence, if necessary, the trial Court shall record the statement of the accused under Section 313 of Cr.P.C. Thereafter, the trial Court shall make an endeavor to dispose off the matter on or before 31st January 2018. vi. In view of allowing Criminal Appeal No.631 of 2012, Criminal Referred Case No.2 of 2012 is dismissed. vi. In view of allowing Criminal Appeal No.631 of 2012, Criminal Referred Case No.2 of 2012 is dismissed. A copy of this order is directed to be sent to the Jail Authorities, Belagavi, where the accused is said to be in custody.