Oral Judgment: (Smt. V.K. Tahilramani, J.)

Heard Shri Doifode, learned APP for the State of Maharashtra, Shri R.P. Joshi learned counsel for the respondent-original accused and Shri Sable learned counsel for the complainant.

2. By judgment and order dated 29.09.2010 passed by the learned Additional Sessions Judge Nagpur in Sessions Trial No.252 of 2008 the respondent-original accused came to be convicted for the offence punishable under Sections 302, 376(2)(f) and 363 of the Indian Penal Code. For the offence under Section 302 of Indian Penal Code he is sentenced to death, for the offence under section 376(2)(f) of Indian Penal Code he is sentenced to suffer R.I. for life imprisonment and to pay a fine of Rs. 2000/- in default of payment of fine to suffer R.I. for 2 years, and under Section 363 of the Indian Penal Code he is sentenced to suffer R. I. for 7 years and to pay fine of Rs. 1000/- in default to payment of fine to suffer R.I. for 6 months. As the respondent was sentenced to death it was subject to confirmation of the said sentence by the High Court, hence this Confirmation Case.

3. Shri Joshi pointed out that in the present case as the accused could not engage a lawyer due to his financial constraints he was provided an Advocate at State cost. Learned Advocate Shri Virsen was appointed from the Legal Aid Panel to represent the accused. 17 witnesses were examined in this case. Mr. Joshi submitted that when four crucial witnesses were examined i. e. P.W. 3 Meenal, P.W. 9 Purushottam, P.W. 12 Kavita and P.W. 17 Dr. Warudkar, the learned Advocate for the accused remained absent at the time of cross examination and the trial Court called upon the accused to cross examine the witness. Mr. Joshi submitted that out of the said witnesses P.W. 12 Kavita is a very crucial witness as she is the witness who has deposed that the accused took away the minor girl Muskan with him on a cycle saying that he would buy a chocolate for her. It is the prosecution case that the accused took Muskan with him on cycle under pretext of giving her a chocolate, thereafter he raped Muskan and committed her murder. The other three witnesses are P.W. 3 Meenal who has stated that she saw the accused taking Muskan on a cycle. P.W. 9 is the Pancha Witness Purushottam who has been examined on the aspect of seizure of blood stained articles of the deceased and the last witness is P.W. 17 Dr. Warudkar who has examined the accused.

4. Shri Joshi stated that all these witnesses are on important aspects of the case. He has further pointed out that Dr. Warudkar P.W. 17 is also a crucial witness because he has deposed about injuries on the person of the accused and he is the witness who has deposed that accused was capable of sexual intercourse. Mr. Joshi submitted that evidence of Dr. Warudkar is extremely significant as it is the prosecution case that accused had committed rape on Muskan.

5. Shri Joshi pointed out that on the day P.W. 3 was examined, P.W. 1 and P.W. 2 were examined on the same day. They were cross examined by the learned Advocate for the accused, however, when P.W. 3 Meenal was examined on the same day at the time of cross examination Advocate for the accused was not present, hence the accused was called upon to cross examine this witness. Shri Joshi submitted that as the case was adjourned to the very next day, the cross examination of P.W. 3 could have been easily deferred to the next day, thereby giving an opportunity to the learned Advocate for the accused to cross examine this witness on the next day, however this was not done.

6. Mr. Joshi submitted that if the trial Court found that the appointed Advocate was not properly conducting the matter, as the case is of a very serious nature the trial Judge ought to have appointed another Advocate for the accused. He submitted that in any event at least opportunity ought to have been given to the appointed Advocate to cross examine P.W. 3 by deferring the cross-examination. The same is the case with other witnesses. When the learned Advocate for the accused did not remain present at the time of cross-examination of these witnesses the matter was adjourned for a day or two, but instead of deferring the cross examination to the next date to enable the Advocate for the accused to cross examine the witnesses on the next date, the accused was called upon to cross examine the witnesses. We have also perused the entire record and proceedings of the present appeal and on perusal of the record we found that indeed, this is the true state of affairs. Moreover, we have noticed that cross examination by the accused consists of hardly a sentence.

7. As the accused was facing several charges, which were so serious in nature that if convicted the accused might be sentenced to death, in such case the trial Court should have adjourned the matter to another date to enable the advocate for the accused to cross examine the witnesses and to allow the accused to effectively defend his case, keeping in mind that the accused had not engaged an Advocate but an Advocate was provided to him from the Legal Aid Panel. This is more so because the witnesses in the facts and circumstances of this case were all on important aspects. Thus it is seen that accused was deprived of effective defence in the course of the trial.

8. Right of a person who is charged with a crime to get services of a counsel is fundamental and essential to a fair trial in our country. In the present case it is noticed that the accused as far as crucial witnesses are concerned has remained unrepresented by a lawyer and this trial has ultimately resulted in his conviction and in a sentence of death.

9. When the learned counsel for the accused provided from the Legal Aid Panel did not turn up to defend the accused on the dates when these 4 witnesses were examined, in our opinion it was the duty of the trial Court to either get another counsel appointed from the Legal Aid Panel in order to defend the accused or atleast defer the cross examination of these crucial witnesses. In our opinion the procedure adopted by the trial Court in a case of such a serious nature as the present one, was improper and incorrect. The accused should have been given a fair chance to defend himself especially looking to the fact that accused was facing serious charges under Sections 302, 376(2)(f) and 363 of Indian Penal Code. Article 21 provides that no person shall be deprived of the life or liberty except in accordance with the procedure established by law. It is not enough that there should be some semblance of procedure provided by law but the procedure under which the person may be deprived of his life or liberty should be "reasonable, fair and just".

10. In the case of Kisan Devka Pawar Vs. State of Maharashtra 2002 ALL MR (Cri) 2092 it is observed that, the right to be heard would be in many cases of little avail if it did not comprehend the right to be heard by counsel. Even an intelligent and educated layman has small and sometimes no skill in the field of law. If charged with a crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of a counsel he may face trial without a proper opportunity to represent his case and he would be open to conviction upon such incompetent evidence or evidence irrelevant to the issue or otherwise inadmissible. Such a person may lack the skill and knowledge adequately to prepare his defence, even though he may have a perfect one. He requires a guiding hand of a counsel at every step in the proceedings against him. Without it, though he may not be guilty, he faces the danger of conviction because he does not know how to establish his innocence. In the present case the accused is a poor labourer. In such case calling upon the accused to cross-examine crucial witnesses in a case as serious as the present one, wherein a death sentence is envisaged without giving at least one opportunity to him would not be fair and just.

11. The Supreme Court in Kishore Chand Vs. State of Himachal Pradesh (1991)1 Supreme Court Cases 286 [LQ/SC/1968/401] has observed that:

"The accused has the fundamental right to defend himself under Article 10 of the Universal Declaration of Human Rights. The right to defence includes right to effective and meaningful defence at the trial."

In the facts and circumstances of the present case we find that accused was not provided with an opportunity of an effective and meaningful defence during his trial.

12. This is a Confirmation Case. The Legislature has provided in confirmation proceedings a final safeguard of the life and liberty of the subject in cases of Capital Sentences. In our opinion in the present case the accused was not able to properly defend his case during the trial as his counsel was absent when four crucial witnesses were examined. Thereafter he has been sentenced to death. In such case it cannot possibly be regarded as a reasonable, fair and just trial. The trial is clearly vitiated on account of this fatal infirmity and therefore conviction and sentence recorded against the respondent-accused deserves to be set aside. Hence, the conviction and sentence recorded against the respondent-accused on all counts is set aside. The case is remanded back to the trial Court for cross examination of these 4 witnesses i.e. P.W. 3, P.W. 9, P.W. 12 and P.W. 17. After the cross examination of these 4 witnesses is over, the trial Court to proceed in accordance with law and dispose of the trial expeditiously after nearing (sic hearing) necessary parties.

Record and Proceedings be sent back to the trial Court forthwith.

Respondent-accused be produced before the trial Court on 11th April 2011.

13. Before parting with this Judgment we wish to place on record that when the Confirmation Case was put up for directions, at that time this Court directed that the accused be produced before the Court. Accordingly he was produced in Court. As the accused had not preferred an appeal, this Court enquired with the accused and he stated that he did not wish to prefer an appeal, however, he prayed that he be provided with an advocate at State cost. As the matter involved death sentence, we requested Shri R.P. Joshi learned counsel to appear for the accused in the matter. Shri Joshi very kindly consented to appear in this matter for the accused. At a very short notice Shri Joshi was thoroughly prepared with the matter and he very ably conducted this matter. We express our appreciation for the able assistance rendered by Shri Joshi.

14. We quantify the fees of Shri R.P. Joshi at Rs. 12,000/-. The same be paid by the High Court Legal Aid Services Sub Committee Nagpur.

For the reasons stated above death reference is answered accordingly.