V. D. GYANI, J. ( 1 ) THE appellants were tried for offences punishable under 5. 302, I. P. C. and under S. 302 read with S. 109, I. P. C. by the 1st Addi. Sessions Judge, Alirajpur, who found the appellants guilty of the aforesaid offences and sentenced them to undergo life imprisonment, vide judgment dated 16. 6. 1985, passed in Sessions Trial No. 239 of 1985. The appellants being aggrieved by the said judgment have preferred this appeal, challenging their conviction mainly on the ground that they were denied a fair trial by the trial Judge. On merits also no case is made out against them, so as to sustain the conviction. ( 2 ) AS regards fair trial, it was urged that as defence counsel was not allowed to put questions to prosecution witness No. 1 Pratap, he was unduly obstructed by the learned Judge, forcing him to make an application on each point that was sought to be urged or question that was sought to be put to the first prosecution witness. In the circumstances, the counsel refused to defend the accused, although he was made to remain in the Court, but he did not conduct the case. The accused were called upon to cross-examine the prosecution witnesses 1 to 8, examined on 14. 6. 85, between 12. 20 p. m. to 2. 00 p. m. and 2. 30 p. m. to 4. 00 p. m. Thus, within 3 hours and 10 minutes, the whole prosecution case, was over, including recording of accuseds statement. The accused applied and prayed for summoning the defence witnesses as per list submitted on 14. 8. 1986. The appellants on 16. 8. 1985 moved yet another application praying for issuance of summons against the witnesses, but the trial Court refused to issue process against the witnesses, holding that the application was moved merely as a pretext, it was lacking in bonafides and ultimately dismissed. On the same day arguments were heard and judgment pronounced. ( 3 ) GOING through the order-sheets dated 14. 8. 1985 and 16. 8. 1985, it is abundantly clear that the accused were not having any legal assistance; nor was it provided by the Court. As many as eight witnesses were examined on 14. On the same day arguments were heard and judgment pronounced. ( 3 ) GOING through the order-sheets dated 14. 8. 1985 and 16. 8. 1985, it is abundantly clear that the accused were not having any legal assistance; nor was it provided by the Court. As many as eight witnesses were examined on 14. 8,1985, the defence counsel was not allowed to put certain questions, which the trial Court felt to be irrelevant, while the counsel maintained that the question was not merely relevant, but very material as well. He made an application and again some objection, followed by another application. The counsel expressed his inability to conduct the case in face of such obstruction at almost every question he put to the witnesses. He prayed staying proceedings so as to enable him to move for transfer of the case. The counsel, who had expressed his inability to conduct the case was not allowed to withdraw from the case and made to wait in the Court under threat of a complaint to the State Bar Council. Counsel, therefore, remained present in the Court. ( 4 ) NOW, who was right or who was wrong is not very material at this stage. The fact remains that the accused had absolutely no legal aid, assistance and advice. They were asked to cross- examine the prosecution witnesses, including the doctor and the Investigating Officer. The trial Court did not bother to think about providing any legal aid to the accused. Not permitting the counsel to withdraw from the case, who was earlier appearing having refused to act as defence counsel, for any good or bad reason. Merely because the counsel, who was appearing earlier, was not permitted to withdraw from the case and was required to remain in the Court-room, till examination of prosecution witnesses was over, would be a poor substitute for the legal aid and assistance contemplated by 5. 304, Cr. P. C. Mere physical presence of a counsel without actively participating in the trial, is of no avail to the accused. ( 5 ) THE accused, who were examined under 5. 313, Cr. P. C. on the same day, i. e. 14. 8. 85. submitted a list of four witnesses. The trial Court directed them to bring their own witnesses. On the next date of hearing, i. e. on 16. 8. ( 5 ) THE accused, who were examined under 5. 313, Cr. P. C. on the same day, i. e. 14. 8. 85. submitted a list of four witnesses. The trial Court directed them to bring their own witnesses. On the next date of hearing, i. e. on 16. 8. 1985, the accused applied for issuance of summons against the witnesses, as they had refused to appear unless summoned by the Court. The learned Judge cross-examined the accused on the contents of this application, which was drafted by a lincensed petition writer. His licence was also threatened to be revoked. It was but natural for the illiterate tribals that they could not have corroborated the application in every word thereof. They gave out the substance of their prayer made in the application that they wanted the witnesses to be summoned by process of the Court for which they had made a prayer. The application also contained yet another prayer that the case be adjourned in view of the lawyers strike that was going on. This led the Court to believe that the application was instigated by lawyers. It was, therefore, lacking in bona-fides and dismissed as such. ( 6 ) MERELY because the accused when questioned could not reproduce the prayer made in their application, it cannot be said by any stretch of logic that such an application lacks in bona-fides, Bona-fides do not depend on sharpness of memory or ability to produce a particular written version or statement. The petition-writer, who drafted the application was called by the Court to ascertain the contents of the application was threatened with cancellation of licence. The lawyer, who was defending was threatened with disciplinary proceedings before the Bar Council. Whether the trial in such circumstances was fair? ( 7 ) THE accused were called upon to cross-examine the prosecution witnesses. The fact that they were initially assisted by a counsel who subsequently refused to act on their behalf, it was all the more necessary for -he trial Court to provide them some other competent lawyer. In any case, to give them an option, to engage a counsel of their choice, should have granted time for the purpose. ( 8 ) IN a serious case like murder, what arguments could be expected to have been advanced by an illiterate tribal who had no legal assistance or advice? In any case, to give them an option, to engage a counsel of their choice, should have granted time for the purpose. ( 8 ) IN a serious case like murder, what arguments could be expected to have been advanced by an illiterate tribal who had no legal assistance or advice? The Court does not provide for it. ( 9 ) TO top it alt, trial Court refused to summon defence witnesses, directing the accused to produce their witnesses and refusing to show any indulgence on their failure to produce the witnesses, is nothing short of denial of a right to have a fair trial. Trial Court record bears eloquent testimony to the denial of the bare minimum to which an accused is entitled to. Apart from the statutory obligation u/s. 304, Cr. P. C. , legal aid has now been recognised as a fundamental right of the accused. A trial in violation of this basic requirement stands vitiated. In this case there are many other violations offending our sense of justice. Refusal to summon defence witnesses, merely because the application appeared to have been instigated by striking lawyers against whom the Judge may have a legitimate grievance, but how can it deprive the accused of their right to have a witness summoned? We have no doubt that the accused were denied the opportunity of a fair trial. In the circumstances, we are constrained to observe that the trial in the instant case, stood vitiated for two reasons: (1) not providing legal aid to the accused, in accordance with S. 304, Cr. P. C. , nor affording them any opportunity to engage a counsel of their choice and secondly for the reason that the defence witnesses as per list submitted by the accused were refused to be summoned by the Court, without any reason or rhyme. Their conviction is liable to be set aside on this short ground alone. It is accordingly set aside. ( 10 ) THE question, whether fresh trial should be ordered, stilt remains to be answered. The conviction is essentially based on the dying-declaration. Ex. P/6, recorded by the doctor, Ramnarayan Mandawaria (PW. 8) and the evidence of Pratap (PW. 1) and the first-information report, Ex. P/3. So far as the witness Pratap (PW. 1) is concerned, it is evident, from the statements of the accused recorded under section 313. Cr. The conviction is essentially based on the dying-declaration. Ex. P/6, recorded by the doctor, Ramnarayan Mandawaria (PW. 8) and the evidence of Pratap (PW. 1) and the first-information report, Ex. P/3. So far as the witness Pratap (PW. 1) is concerned, it is evident, from the statements of the accused recorded under section 313. Cr. P. C. , that he was inimically disposed towards the accused and had every reason to implicate them. The other witness, Gusai (PW. 5) has not fully supported the prosecution case. The dying-declaration, Ex. P/6, is also not inspiring of confidence for the following reasons: (1) the interpolations made in timings as recorded in Ex. P/2, are apparent to a naked eye. These interpolations cast a serious reflection on Ex. P/6 the dying-declaration; (2) the dying-declaration is silent about the role of the appellant Ditla, trial Court has tried to explain this omission by saying that the deceased was not asked about it. How illogical it sounds, that the doctor should have suggested him the name of another assailant, whom the deceased was not naming while making a dying-declaration. Adopting such a course in recording a dying declaration would destroy its veracity and sanctity. It is not for the person recording the dying-declaration to make use of his knowledge or information of the case, No suggestive questions should be put. At the time of admission, the condition of the patient, as recorded by the doctor, was as follows: 1. General condition-poor. 2. Tongue-pale; 3. Pulse-not pulpable 4. B. P.-not recordable; 5. Intestines coming out of the wound on the left lumber region, anterior abdominal wall. Prosecution evidence is inconsistent with the dying-declaration - (See-T. Pompiah v. State of Mysore, Harchandsingh v. State of Haryana and K. R. Reddy v. Public Prosecutors. Theinjury report, Ex. P16, was given by the doctor at 7. 30 a. m. There is a note to the effect that the dying declaration recorded and given to the constable. If it was already recorded at 7. 30 a. m. , what was the occasion for certifying at 7. 45 a. m. in Ex. P/6 that the patient was in a. fit state of mind to give the dying declaration and, thereafter proceeding to write the dying declaration and again certifying at the end of Ex. If it was already recorded at 7. 30 a. m. , what was the occasion for certifying at 7. 45 a. m. in Ex. P/6 that the patient was in a. fit state of mind to give the dying declaration and, thereafter proceeding to write the dying declaration and again certifying at the end of Ex. P/6 that the patient remained in a fit state of mind through-out the period of recording the declaration. This variation in timings cannot be lightly brushed aside. Recording of dying-declaration is not merely a matter of formality. In this case, while the form is present, the same is missing. None of the attesting witnesses to Ex. P/6 has been examined by the prosecution, Kamali (PW. 2) whose thumb-mark is to be found on Ex. P/2, and who was all along present In the hospital, does not say a word about any such declaration, made by the deceased and recorded by the doctor, Ramnarayan Mandawaria (PW. 8), who stands contradicted by his own report, Ex. P/s, in so far as the recording of the dying-declaration at 7. 45 a. m. is concerned. For the foregoing reasons the dying declaration cannot be intrinsically relied upon. ( 11 ) IN the result, even on merits, the conviction recorded against the appellants cannot be allowed to stand. The appeal deserves to be allowed. It is accordingly allowed. The appellants are acquitted of the charges framed against them. Their conviction and sentence are set aside. They be set at liberty forthwith. In view of the foregoing discussion, re-trial is not necessary and the question posed earlier is answered in the negative. Appellant's bail bonds are cancelled. Appeal allowed. .