Thangaperumal vs State

M. Chockalingam, J.—Challenge is made to a judgment of the Additional Sessions Division, Fast Track Court No. I, Tuticorin, made in S.C. No. 241 of 2005 whereby the sole accused/appellant stood charged u/s 302 of IPC, tried, found guilty as per the charge of murder and awarded life imprisonment along with a fine of Rs. 1,000/- and default sentence.

The short facts necessary for the disposal of this appeal can be stated as follows:

(a) P.W.1 is a resident of Kancheepuram. Prior to that, she was living in Mettupatti along with her child Karthik Raja. The appellant married her four years prior to the occurrence, and the child was born. Even when she was pregnant, he entertained suspicion over her, and he was go on cruelly treating her. P.W.1 gave a complaint to the police, and the appellant was enquired, and it was settled peacefully. During the relevant time, they were living together along with the child Raja.

(b) On 2.8.2004, after taking dinner, the deceased and the child were sleeping together and the appellant was sleeping in the upstairs. That night, he asked his wife to wake him up at 4''O Clock on the next day. Accordingly, she woke him up at 4''O Clock. The child was also with them. At that time, he told that to whom the child was born he did not know, and thereafter, he came to the house. Regarding this, there was a quarrel among the spouse. Following the same, he attacked Karthik Raja, the child, with the stone at number of times, pushed him down and kicked him. Then he took the child and immersed in the water which is filled in a vessel, and he caused his death. The same was witnessed by the witnesses standing by the side.

(c) P.W.1 went to the respondent police station and gave a complaint Ex.P1, to P.W.19, the Head Constable. Then on the strength of Ex.P1, a case came to be registered in Crime No. 335 of 2004 u/s 302 of IPC. The printed FIR, Ex.P8, was despatched to the Court.

(d) P.W.20, the Inspector of Police of that Circle, on receipt of the copy of the FIR, took up investigation, proceeded to the spot, made an inspection and prepared an observation mahazar, Ex.P2, and also a rough sketch, Ex.P9. He examined the witnesses and recorded their statements. He also conducted inquest on the dead body of the deceased in the presence of witnesses and panchayatdars and prepared an inquest report, Ex.P10. The dead body was sent to the Government Hospital for the purpose of autopsy.

(e) P.W.12, the Assistant Surgeon, attached to the Government Hospital, Vilathikulam, on receipt of the requisition, conducted autopsy on the dead body of Karthik Raja and has issued a postmortem certificate, Ex.P5, with her opinion that the deceased would appear to have died of shock and internal bleeding due to injury to kidney.

(f) Pending the investigation, the accused was also arrested on 3.8.2004. He was sent for judicial remand. On completion of the investigation, the Investigator filed the final report.

The case was committed to Court of Sessions, and necessary charge was framed. In order to substantiate the charge, the prosecution examined 20 witnesses and also relied on 10 exhibits and 6 material objects. On completion of the evidence on the side of the prosecution, the accused was questioned u/s 313 of Code of Criminal Procedure as to the incriminating circumstances found in the evidence of the prosecution witnesses which he flatly denied as false. No defence witness was examined. The trial Court after hearing the arguments advanced on either side and looking into the materials available, took the view that the prosecution has proved the case beyond reasonable doubt and found the appellant guilty and awarded the punishment as referred to above. Hence this appeal at the instance of the appellant.

Advancing arguments on behalf of the appellant, the learned Counsel inter alia would submit that the judgment of the trial Court has got to be set aside on the ground that sufficient opportunity was not actually afforded to the appellant/accused before the trial Court. The learned Counsel took the Court to the judgment of the trial Court and pointed out that 20 witnesses have been examined on the side of the prosecution; that no one witness was cross-examined; that the Counsel appearing for the appellant/accused, did not appear before the trial Court, and in such circumstances, the trial Court should have appointed an amicus curiae since it was a Court of Session, but it has not done so; and that it is actually mentioned in the judgment itself.

Pointing to paragraph 17 of the impugned judgment, the learned Counsel would argue that when all these witnesses were examined in chief, they were not cross-examined; that the accused was asking for time since his Counsel who appeared for him, would come and cross-examine them; but the Counsel did not come and cross-examine; that under the circumstances, a duty was cast upon the trial Court under Rule 166 of the Criminal Rules of Practice to engage an amicus curiae, but not done so; that in view of the same, the entire trial is vitiated; that it is a fit case where an opportunity should be given to him since it is a case where he has been found guilty of murder and awarded life imprisonment, and hence the judgment of the trial Court has got to be set aside.

The learned Counsel relied on a judgment of this Court reported in (2009) 4 MLJ 30 (P. Anbarasu v. State) in order to fortify his contention.

The Court heard the learned Additional Public Prosecutor on the above contention.

From the perusal of the judgment, it is clear that after the case was committed to Court of Sessions, necessary charge was framed against the appellant/accused. He also engaged a Counsel to defend him. It could also be seen from the judgment that 20 witnesses were examined on the side of the prosecution in chief, but no one witness was cross-examined. From the time of the commencement of the trial, the Counsel appearing for the appellant, did not cross-examine any one of the witnesses. But, the trial Judge has proceeded with the trial examining all the witnesses. Under the circumstances, a duty was cast upon the trial Judge to appoint an amicus curiae. At this juncture, it would be apt and appropriate to reproduce Rule 166 of the Criminal Rules of Practice as follows:

When pleader to be engaged to defend accused: In any case which comes before the High Court or a Court of Session, the Court shall engage a pleader to defend an accused person if, (1) the charge against him is such that a capital sentence is possible, and (2) it appears that he has not engaged a pleader and is not possessed of sufficient means to do so.

From the very reading of the above provision, it would be quite clear that the intention of the legislature would be manifest that if the accused is unable to appoint a Counsel to defend him, the trial Court has to necessarily appoint an amicus curiae to defend him. In the given case, though it is found in the judgment that when the lawyer was defending him, actually no one witness was cross-examined by him. That apart, though the accused was asking for time and it was granted by the Court on occasions, a duty was cast upon the trial Court to appoint an amicus curiae which the trial Judge has failed. But, after recording the chief-examination of the witnesses, the accused was questioned u/s 313 of Code of Criminal Procedure Then, the trial Judge has proceeded to hear the arguments advanced by the prosecution, and has found him guilty. It can be well stated that it is a clear case of violation of mandatory provision as one envisaged in the above Rule which would not only cause prejudice to the interest of the accused, but also lead to miscarriage of justice. In such circumstances, this Court has no option than to declare the judgment of the trial Court as illegal, and it has got to be set side. An opportunity has got to be given to the appellant/accused to cross-examine all the witnesses.

In the result, this criminal appeal is allowed setting aside the judgment of the trial Court. The matter is remitted to the trial Court. The trial Judge is directed to issue summons to the witnesses, give an opportunity to the appellant/accused to cross-examine the witnesses whose chief-examination was already recorded by the Court, proceed with the case and render judgment in accordance with law.