TaxTMI 
TaxTMI 
2019 (12) TMI 1622
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.... (B) The body of the victim was found in an open field on 01.02.2013. (C) The appellant was arrested on 04.02.2013, and after completion of investigation charge-sheet was filed on 13.02.2013 in the concerned court and the case was committed to Sessions Court on 18.2.2013. The case was posted for 19.02.2013 to consider whether charges be framed or not. (D) It appears that since no Advocate had entered appearance on behalf of the appellant, on 18.02.2013 a learned Advocate was appointed by the Legal Aid Services Authority to represent the appellant on 19.02.2013. That learned Advocate, however, did not appear on 19.02.2013 when the case was taken up, and as such another learned Advocate came to be appointed through Legal Aid Services to represent the appellant. Such appointment was done on 19.02.2013 and on the same day the charges were framed against the appellant for the offences punishable under Sections 302, 363, 366, 376(2)(f) and 377 IPC and under Sections 4, 5 and 6 of Protection of Children from Sexual Offences Act, 2012. (E) In the next seven days i.e. by 26.2.2013, all thirteen prosecution witnesses were examined. (F) Thereafter, the cas....
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....) are marked as ext. C-1, C-2 and C-3. The prosecution has not yet received DNA report, the same will be placed on record as and when it is received, saying such like earlier it was stated that any other evidence is not to be produced, hence hearing final arguments in case started, which remained incomplete. Put up on 01.03.2013 for placing on record DNA report and rest final arguments. Sd/- Sessions Judge Khandwa (iii) 01.03.2013 State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf. The prosecution has not received DNA report, same will be placed on record on receipt. Hearing of rest of final arguments started which remained incomplete. Put up on 02.03.2013 for placing on record DNA report and rest of final arguments. Sd/- Sessions Judge Khandwa (iv) 02.03.2013 State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf. The accused is being tried under Section 9 of Protection of Children from Sexual Offences Act, ....
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....sought. It has been stated that concerned document and report since were received in delay and it was filed as earliest and by virtue of this correspondence relating to above are being filed now. It is mentioned that DNA report was received on 01.03.2013 itself hence considering the reason so disclosed during arguments defense has not raised any effective objection hence, application stands allowed and concerned documents are taken on record and witness K.K. Mishra PW-13 and Hari Karan PW-12 are permitted to be reexamined. It has been stated by the public prosecutor that above witnesses are present today, hence, above both the witnesses were additionally examined with consent of defense and they were discharged after reexamination. Prosecution stated not to adduce any other evidence as such closed its evidence. The packet of article so filed is in sealed condition, which was opened in presence of both the parties. After evidence let same be deposited in malkhana by duly sealing with memo of property. In regard to additional evidence so adduced accused was re-examined under Section 313 Cr.P.C. and again on entering in defense, the accused stated n....
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....y. Shri D.S. Chauhan, Advocate present on his behalf. Both the parties again stated not to adduce any evidence regarding order of sentence, hence order of sentence was pronounced separately in open court according to which accused is convicted and sentenced as follows regarding charges: No. Offence U/s Sentence of rigorous imprisonment Fine In default of paymentof fine, additional sentence of rigorous imprisonment 1 302 IPC Death Sentence - - 2 363 IPC Seven years 1000 One month 3 366 IPC Seven years 1000 One month 4 377 IPC Seven years 1000 One month 5 376(2) IPC Life imprisonment 1000 One month Due to being similar act, no separate sentence is being awarded for the offence under Section 6 of Protection of Children from Sexual Offences Act, 2012. By preparing warrant of conviction in this regard let accused be sent to jail. The accused has been sentenced to death also and in above regard according to Section 366 Cr.P.C. it has also been directed that death penalty be not executed so long as it is not confirmed by the Hon'ble High Court, hence in that regard acc....
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....sonment. (five) For the offence under Section 377 IPC the accused is sentenced to imprisonment for seven years with fine of Rs.1,000/- in default of payment of fine, he is directed to undergo another one month rigorous imprisonment. (Six) Considering the provisions of Section 42 of Act, where for similar act the accused has been convicted under the sections of Act and IPC, then he should be sentenced for the offences having larger punishment and in this regard principle of Section 71 IPC is also perusable and in Section 376(2)(f) IPC and in Section 6 of the Act, there is provision of punishment for imprisonment for life and minimum sentence of 10 yrs rigorous imprisonment and for similar act, order of sentence is being passed for the offence under Section 376(2) (f) and Secton 377 IPC also, hence separate order of sentence for the offence under Section 6 of Protection of Children from Sexual Offences Act, 2012 is not being passed. All the sentences of imprisonment shall run concurrently. 67. The accused is in detention since 04.02.2013 hence, let certificate of the period undergone by him in detention during trial be attached with warrant as per ....
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.... The report clearly states that the hairs seized from the fist of victim and the skin found in the cut-nails of victim belonged to the accused. The report further states that the semen found on the paijama of victim was of the accused. Not only this, according to the report, blood found on the underwear of accused was of the victim. The cremation of the body of victim was done on 1.2.2013 whereas the accused was arrested on 4.2.2013. There was, therefore, no possibility of the blood of victim having been put on the seized underwear of the accused. ... ... ... 11. The evidence on record clearly establishes that the accused was close to the family of Ramlal and the victim trusted him. She, therefore, on his asking immediately rushed to buy "bidi" for him from a kirana shop. The accused then followed the victim with a premeditated mind to commit the crime. The accused, taking advantage of the trust of victim, after kidnapping and subjecting her to brutal rape and carnal sex most gruesomely throttled her to death. The numerous injuries on the body of victim testify this fact. He even dumped the body of victim in the field. Earlier also, the accused was convicted vide judgment ....
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....he other issues noted in the Order dated 12.12.2018 were referred to but it was observed:- "As presently advised, we will deal first with the issue pertaining to the present trial and whether the approach adopted by the Trial Court in the present matter could be accepted or whether there was any infraction or error on the part of the Trial Court in adopting the approach in the present matter. Other issues, namely applicability of Section 309 and advisability of having video-conferencing in the matter will be dealt with at a later stage and the consideration of these issues, for the time being, is deferred." 5. The consideration at present is thus confined to the issue as stated above. 6. In support of his submissions, Mr. Sidharth Luthra, learned Senior Advocate, relied upon certain decisions of this court and, particularly, in Bashira vs. State of U.P. (1969) 1 SCR 32 : AIR 1968 SC 1313 and Mohd. Hussain Alias Julfikar Ali vs. State (Government of NCT of Delhi) (2012) 9 SCC 408. Mr. Varun Chopra, Deputy Advocate General appearing for the State, however, submitted that the evidence on record, without any doubt, pointed towards the guilt of the accused and as such the....
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....to indicate that, as soon as the counsel was appointed, the charge was read out to the accused and, after his plea had been recorded, examination of witnesses began. The counsel, of course, did his best to cross-examine the witnesses to the extent it was possible for him to do in the very short time available to him. It is true that the record also does not contain any note that the counsel asked for more time to prepare the defence, but that, in our opinion, is immaterial. The Rule casts a duty on the court itself to grant sufficient time to the counsel for this purpose and the record should show that the Rule was complied with by granting him time which the court considered sufficient in the particular circumstances of the case. In this case, the record seems to show that the trial was proceeded with immediately after appointing the amicus curiae counsel and that, in fact, if any time at all was granted, it was nominal. In these circumstances, it must be held that there was no compliance with the requirements of this Rule. 9. In this connection, we may refer to the decisions of two of the High Courts where a similar situation arose. In Re: Alla Nageswara Rao, Petitioner ....
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....ted that the violation of the mandate of the concerned Rule would amount to breach of rights conferred by Article 21 of the Constitution as under: "In these circumstances, conviction of the appellant in a trial held in violation of that Rule and the award of sentence of death will result in the deprivation of his life in breach of the procedure established by law." The operative part of the decision was :- "As a consequence, we set aside the conviction and sentence of the appellant. Since we are holding that the conviction is void because of an error in the procedure adopted at the trial, we direct that the appellant shall be tried afresh for this charge after complying with the requirements of law, so that the case is remanded to the Court of Session for this purpose." 8. In Hussainara Khatoon and others (IV) v. Home Secretary, State of Bihar, Patna (1980) 1 SCC 98 it was observed as under: "7. We may also refer to Article 39-A the fundamental constitutional directive which reads as follows: "39-A. Equal justice and free legal aid.-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, an....
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....to monitor and implement legal aid programs on a uniform basis throughout the country in fulfilment of the constitutional mandate. 9. Experience gained from a review of the working of the Committee eventually led to the enactment of the Legal Services Authorities Act, 1987 (for short "the Act"). 10. The Act provides, inter alia, for the constitution of a National Legal Services Authority, a Supreme Court Legal Services Committee, State Legal Services Authorities as well as Taluk Legal Services Committees. Section 12 of the Act lays down the criteria for providing legal services. It provides, inter alia, that every person who has to file or defend a case shall be entitled to legal services, if he or she is in custody. Section 13 of the Act provides that persons meeting the criteria laid down in Section 12 of the Act will be entitled to legal services provided the authority concerned is satisfied that such person has a prima facie case to prosecute or defend. 11. It is important to note in this context that Sections 12 and 13 of the Act do not make any distinction between the trial stage and the appellate stage for providing legal services. In other words, ....
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....e whom the accused is produced informs him of this right. It would also make a mockery of legal aid if it were to be left to a poor, ignorant and illiterate accused to ask for free legal services thereby rendering the constitutional mandate a mere paper promise. 15. Suk Das v. Union Territory of Arunachal Pradesh (1986) 2 SCC 401 reiterated the requirement of providing free and adequate legal representation to an indigent person and a person accused of an offence. In that case, it was reiterated that an accused need not ask for legal assistance-the Court dealing with the case is obliged to inform him or her of the entitlement to free legal aid. This Court observed that (SCC p. 407, para 5) it was now "settled law that free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty and this fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21 [of the Constitution]". 16. Since the requirements of law were not met in that case, and in the absence of the accused person being provided with legal representation at S....
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....ence appears to be essential to the just decision of the case. 19. If the appellate court in an appeal from a conviction under Section 386 orders the accused to be retried, on the matter being remanded to the trial court and on retrial of the accused, such trial court retains the power under Section 311 of the Code unless ordered otherwise by the appellate court. 20. In Machander v. State of Hyderabad AIR 1955 SC 792 : (1955) 2 SCR 524, it has been stated by this Court that while it is incumbent on the court to see that no guilty person escapes but the court also has to see that justice is not delayed and the accused persons are not indefinitely harassed. The Court further stated that the scale must be held even between the prosecution and the accused. 21. In Gopi Chand v. Delhi Admn AIR 1959 SC 609 : 1959 Crl. L. J. 782, a Constitution Bench of this Court was concerned with the criminal appeals wherein plea of the validity of the trial and of the orders of conviction and sentence was raised by the appellant. That was a case where the appellant was charged for three offences which were required to be tried as a warrant case by following the procedure pres....
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....y proceed with the trial afresh after recording a plea on the charges. The appeal is allowed accordingly. The order of conviction and sentence passed by the Special Court and confirmed by the High Court are set aside and a de novo trial is ordered hereby." 23. This Court in S. Guin v. Grindlays Bank Ltd. (1986) 1 SCC 654 Was concerned with the case where the trial court acquitted the appellants of the offence punishable under Section 341 IPC read with Section 36-AD of the Banking Regulation Act, 1949. The charge against the appellants was that they had obstructed the officers of the Bank, without reasonable cause, from entering the premises of a branch of the Bank and also obstructed the transaction of normal banking business. Against their acquittal, an appeal was preferred before the High Court which allowed it after a period of six years and remanded the case for retrial. It was from the order of remand for retrial that the matter reached this Court. This Court while setting aside the order of remand in para 3 of the Report held as under: (SCC pp. 655-56) "3. After going through the judgment of the Magistrate and of the High Court we feel that whatever might ha....
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....ing the sentence where the trial has concluded-as may be deemed just and equitable in the circumstances of the case. (10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial." 25. In Kartar Singh v. State of Punjab (1994) 3 SCC 569, it was stated by this Court that no doubt liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice should keep in mind not only the liberty of the accused but also the interest of the victim and their ....
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....w. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored and partisan trial. 40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice." The Bench emphasised that: (Best Bakery case19, SCC p. 192, para 52) "52. Whether a retrial under Section 386 of the Code or taking up of additional evidence under Section 391 of the Code [in a given case] is the proper procedure will depend on the facts and circumstances of each case for which no straitjacket formula of universal and invariable application can be formulated." 40. "Speedy trial" and "fair trial" to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the a....
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....was reserved. By its decision dated 30.04.2009 this Court allowed the Appeals preferred by the State and imposed death sentence upon accused nos. 3, 5 and 6 while confirming the death sentence in respect of accused nos. 1, 2 and 4. All six accused were thus sentenced to death. Thereafter, Review Petition (Crl.)Nos.34-35 of 2010 were preferred by accused nos. 1, 2 and 4 while Review Petition (Crl.)Nos.18- 19 of 2011 were preferred by accused nos. 3, 5 and 6. While allowing Review Petitions by its Order dated 31.10.2018 (Ambadas Laxman Shinde and others vs. State of Maharashtra - (2018) 14 SCALE 730 = (2018) 18 SCC 788), this Court observed:- "From the above narration of facts, it is evident that Accused Nos.3, 5 and 6 had no opportunity to be heard by the Bench, before the appeals filed by the State of Maharashtra for enhancement of sentence were decided. They have been deprived of an opportunity of engaging counsel and of urging such submissions as they may have been advised to urge in defence to the appeals filed by the State for enhancement." This Court, therefore, recalled the Judgment and order dated 30.04.2009 and the Criminal Appeals were restored to the file o....
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....e matter on the other, so that the cause of justice is well served." 13. The following principles, therefore, emerge from the decisions referred to hereinbove:- a) Article 39-A inserted by the 42nd amendment to the Constitution, effected in the year 1977, provides for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The statutory regime put in place including the enactment of the Legal Services Authorities Act, 1987 is designed to achieve the mandate of Article 39-A. b) It has been well accepted that Right to Free Legal Services is an essential ingredient of 'reasonable, fair and just' procedure for a person accused of an offence and it must be held implicit in the right guaranteed by Article 21. The extract from the decision of this Court in Best Bakery case19 (as quoted in the decision in Mohd. Hussain3) emphasizes that the object of criminal trial is to search for the truth and the trial is not a bout over technicalities and must be conducted in such manner as will protect the innocent and punish the guilty. c) Even before insertion of Article 39-A in the Cons....
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....s stated above, but the trial itself was concluded within a fortnight thereafter. In the process, the assistance that the appellant was entitled to in the form of legal aid, could not be real and meaningful. 16. There are other issues which also arise in the matter namely that the examination of 13 witnesses within seven days, the examination of the accused under the provisions of the Section 313 of the Code even before the complete evidence was led by the prosecution, and not waiting for the FSL and DNA reports in the present case. DNA report definitely formed the foundation of discussion by the High Court. However, the record shows that the DNA report was received almost at the fag end of the matter, and after such receipt, though technically an opportunity was given to the accused, the issue on the point was concluded the very same day. The concluding paragraphs of the judgment of the Trial Court show that the entire trial was completed in less than one month with the assistance of the prosecution as well as the defense, but, such expeditious disposal definitely left glaring gaps. 17. In V.K. Sasikala vs. State Represented by Superintendent of Police ((2012) 9 SCC 771) a c....
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....the charges framed by the Trial Court are required to be amended or not; (ii) whether any of the prosecution witnesses need to be recalled for further cross-examination; and (iii) whether any expert evidence is required to be led in response to the FSL report and DNA report. The matter shall, thereafter, be considered on the basis of available material on record in accordance with law. 21. It must be stated that the discussion by this Court was purely confined to the issue whether, while granting free Legal Aid, the appellant was extended real and meaningful assistance or not. The discussion in the matter shall not be taken to be a reflection on the merits of the matter, which shall be considered and gone into, uninfluenced by any observations made by us. 22. Before we part, we must lay down certain norms so that the infirmities that we have noticed in the present matter are not repeated:- i) In all cases where there is a possibility of life sentence or death sentence, learned Advocates who have put in minimum of 10 years practice at the Bar alone be considered to be appointed as Amicus Curiae or through legal services to represent an accused. ii) In all mat....