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Karnataka High Court · body

2020 DIGILAW 1464 (KAR)

Yamanappa v. State Of Karnataka,

2020-07-22

B.A.PATIL, M.G.UMA

body2020
JUDGMENT B.A.Patil, J. - The present appeal has been preferred by the appellant accused questioning the judgment of conviction and order of sentence passed in S.C. No.27/2012 passed by learned I Additional District and Sessions Judge, Bagalkot to sit at Jamakhandi dated 12.08.2017. 2. We have heard the learned counsel Sri.S.C.Bhuti for the appellant accused by virtual hearing and the learned Additional S.P.P. Sri.V.M. Banakar for respondent State who is present before the Court. 3. The brief facts of the case as per the complaint are that the daughter of the complainant was sent to attend the fair and Chariot of Deity Sri.Kadasiddeshwar on 20.09.2011. After the fair, she was sent back on 26.09.2011 and the same was informed to the complainant by C.W.7. But even after 06:30 p.m., the deceased Jyoti did not returned from Banahatti. They searched for her and they could not trace her. On 27.09.2011 again they started searching for his daughter Jyoti. At about 09:00 a.m., his brother telephoned him informing that in Banahatti near Dempo Diary, in Hadkar land in the forest area people have assembled and he went there and saw the dead body of Jyoti. Immediately the complainant also went there at about 10:00 a.m. and he noticed bite marks on both the cheeks and her dress was removed including the inner garments. By noticing the same, he felt that some miscreants have sexually assaulted her and have committed the murder. On the basis of the complaint, a case has been registered. Thereafter, after investigation charge sheet has been filed. 4. It is the contention of the learned counsel for the appellant accused that earlier the appellant accused preferred the appeal before this Court in Criminal Appeal No.100030/2016 challenging the order dated 09.12.2015 and this Court held that no opportunity has been given for cross-examination of P.Ws.1 to 24 and the matter was remanded back with a direction to give full opportunity to the accused to recall P.Ws.1 to 24 and accused be permitted with an opportunity to cross: examine the witnesses by providing a reasonable time and also lead any evidence on his side. 5. It is his further submitted that after remand, he has recalled PWs.1 to 24 and thereafter he filed an application under Section 311 of Cr.P.C. on 08.06.2017 to recall P.W.27 Investigating Officer for further crossexamination. 5. It is his further submitted that after remand, he has recalled PWs.1 to 24 and thereafter he filed an application under Section 311 of Cr.P.C. on 08.06.2017 to recall P.W.27 Investigating Officer for further crossexamination. The Trial Court by order dated 19.06.2017 has rejected the application only on the ground that when this Court passed the order, the order is specific only to recall and cross-examine P.Ws.1 to 24 and the present application has been filed to recall P.W.27 the Investigating Officer. The Trial Judge without giving any opportunity to cross-examine the Investigating Officer to confront with contradictions and omissions brought during the course of cross-examination of this witness proceeded to dispose of the matter. It is his further submission that if the cross-examination of this witnesses is not permitted, then it is going to deprive the opportunity to the accused. Granting of opportunity to the accused is harbinger for a criminal case. If once the opportunity is denied it totally shuts the door of the Court to the accused and the material contradictions and omissions if they have not been put to the Investigating Officer, then the said contradictions and omissions cannot be used during the course of arguments and it is nothing but the principles of natural justice will be affected and an opportunity has to be granted to the accused to recall the Investigating Officer and putforth the material questions including the contradictions and omissions. It is his further submission that if the opportunity is not granted to the accused, then under such circumstances, the prejudice is going to be caused and the very purpose of a fair trial is going to be affected. Therefore, he prays to allow the appeal and to set aside the judgment and remand the mater to the Trial Court to give an opportunity to cross-examine the Investigating Officer P.W.27. On these grounds, he prayed to allow the appeal. 6. Per contra, the learned Additional S.P.P. vehemently argued and submitted that the matter has been remitted by this Court by order dated 24.08.2016 all the witnesses have been recalled and they have been cross-examined. Subsequently only with an intention to take an opportunity, further application has been filed to recall P.W.27. It is his further submission that in the application which has been filed, no reasons have been assigned for what purpose the Investigating Officer is intended to be recalled. Subsequently only with an intention to take an opportunity, further application has been filed to recall P.W.27. It is his further submission that in the application which has been filed, no reasons have been assigned for what purpose the Investigating Officer is intended to be recalled. If the matter has been remitted to the Trial Court, there will be delay in concluding the trial. The accused has cultivated the habit of getting the matter remanded back to the Court on one pretext or the other only with an intention to drag on the conviction which has been sustained by him. It is his further submission that already full and complete opportunity has been given even then the said application has been filed. No grounds have been made out by the appellant accused to remand the matter. It is his further submission that all the material witnesses have categorically stated about the commission of the offence by the accused and all the circumstances clearly indicate that it is the accused who has committed the offence. There are no grounds to interfere with the judgment of the Trial Court. On these grounds, he prayed to dismiss the appeal. 7. We have carefully and cautiously gone through the submissions made by the learned counsels appearing for the parties and perused the records. 8. As could be seen from the records, admittedly the accused by questioning the judgment of conviction and order of sentence dated 09.12.2015 preferred the appeal in Criminal Appeal No.100030/2016 and at that time, it is contended from the Bar that the accused has not been given an opportunity to cross-examine the material witnesses i.e., P.Ws.1 to 24 and the Trial Court by relying the evidence of P.Ws.1 to 24 has convicted the accused. Taking into consideration of the fact that the accused has been deprived of the opportunity this Court remanded the matter to the Trial Court with a direction to recall P.Ws.1 to 24 and the accused shall be permitted with an opportunity to cross-examine the witnesses providing reasonable time to cross-examine those witnesses and also lead any evidence on his side, accordingly, the Trial Court has recalled P.Ws.1 to 24 and thereafter the accused has filed an application under Section 311 of Cr.P.C. to recall the Investigating Officer P.W.27. On perusal of the application dated 08.06.2017, no doubt no specific grounds have been mentioned for what purpose the said application has been filed to recall the Investigating Officer P.W.27. But on close scrutiny of the order of the Trial Court dated 19.06.2017, it indicates that this Court while remanding has directed and permitted the accused to cross-examine P.Ws.1 to 24 and it was allowed for a limited purpose of cross-examination of P.Ws.1 to 24 and accordingly an opportunity has been given and thereafter the said application has been filed. But the Trial Court has observed that when there is a clear order of this Court to recall only P.Ws.1 to 24 and it cannot go beyond the said order and in that light, the application filed under Section 311 of Cr.P.C by the accused was dismissed as not maintainable. 9. On perusal of the order of the Trial Court it has interpreted the order of this Court in a watertight compartment without application of its mind to the facts and circumstances of the case. When this Court has remanded the matter to recall P.Ws.1 to 24, as no opportunity had been given by the Court to the accused to cross-examine these witnesses and if any material contradictions and omissions have been brought during the course of cross-examination of these witnesses, then under such circumstances, the same has to be put during the course of cross-examination of the Investigating Officer, as contemplated under Section 145 of the Evidence Act. This basic tenets of the law has not been kept into view by the Trial Court and only by strict interpretation of the order of this Court, as there is no order to recall the Investigating Officer, the application was came to be rejected. When the accused is intending to cross-examine the Investigating Officer, to contradict the contradictions and omissions, then under such circumstances, he is going to be deprived of the fair opportunity of the trial in accordance with law. When an opportunity has been deprived to the accused, then under such circumstances, he has right to fair trial is also going to be affected. 10. In that light, we are of the considered opinion that though the matter requires to be remanded to the Trial Court directing the Trial Court to provide sufficient opportunity to the accused even by recalling the Investigating Officer. 10. In that light, we are of the considered opinion that though the matter requires to be remanded to the Trial Court directing the Trial Court to provide sufficient opportunity to the accused even by recalling the Investigating Officer. But this Court is of the opinion that the trend of the accused by taking undue advantage of the situations, getting the matter remanded to the Trial Court on one pretext or the other. However, the Trial Court could have exercised its discretion and it could have recalled the Investigating Officer. But the same has not been done and thereby the opportunity has been deprived to the accused. In that light, we pass the following order: ORDER (i) The appeal is allowed. (ii) The judgment of conviction and order of sentence passed by the learned I Additional District and Sessions Judge, Bagalkot, to sit at Jamakhandi in S.C. No.27/2012 dated 12.08.2017 is set aside. (iii) The matter is remitted to the Trial Court with a direction to recall the Investigating Officer P.W.27 and the accused be permitted by giving an opportunity to cross-examine the said witness within two months from the receipt of this order. Even the Trial Court is permitted to fix the matter for crossexamination of the witness through virtual hearing / video conference and thereafter to pass the final verdict on merits, in accordance with law. (iv) Since the accused is represented by the counsel, he is directed to keep the accused present before the Court on 17.08.2020 without fail and cooperate with the Trial Court in complying with the direction of this Court. (v) Since already the accused has been granted bail by suspending the sentence, the same liberty may be extended by the Trial Court till P.W.27 is recalled and an appropriate order is passed. The Registry is directed to send back the records to the Trial Court forthwith.