Thyagu alias Thyagarajan v. State — 1989 DIGILAW 338 (MAD)

Judgment :- Arunachalam, J. R.T.No.12 of 1987 a reference under Sec.366, Cr.P.C. made by the Sessions Judge, Dharmapuri District at Krishnagiri, for the confirmation of the sentence of death meted out to accused 1 to 4 (Thyagu alias Thyagarajan, Sekar alias Chandrasekar, Muniyappan and Sheik Babu) in S.C.No.25 of 1987 on his file. The above four appeals C.A.Nos.647,684 and 729 of 1987 and 144 of 1988 have been respectively preferred by the fifth accused, fourth accused, accused 1 and 3 and the second accused canvassing the correctness of the judgment in the above cases, convicting them for various offences and sentencing them therefore, inclusive of the sentence of death awarded to accused 1 to 4. 2. Be fore the trial court the appellants were charged under eight heads: The first charge against the appellants was for an offence under Sec.120-B, I.P.C. in that they along with one Dhadha alias Abdul Razack and the approver Venkatcsan (P.W.1) during the months of November and December, 1985 at Bargur and Bangalore engaged themselves in a conspiracy and agreed to rob a lorry load of textiles and in pursuance of the said conspiracy committed murder of the lorry driver Mani and Perumal, the cleaner of the lorry. The second charge against accused 1 and 4 was for an offence under Sec.302, I.P.C, relating to the murder of the first deceased Mani on the allegation that at or about 7 P.M. on 6.12.1985, in pursuance of their conspiracy to commit robbery of textile goods, the first accused the fourth accused and Dhadha alias Abdul Razack strangulated Mani, the first deceased, by means of a nylon rope during the course of which Dhadha also kicked on the private parts of the deceased Mani. This charge, which was framed simpliciter for an offence under Sec.302, I.P.C, on 23.3.1987, was altered on 18.9.1987 for an offence under Sec.302 read with Sec.34, I.P.C The altered third charge indicts the second accused for an offence under Sec.302, I.P.C, on the allegation that in pursuance of the conspiracy during the course of the same transaction referred to in charge No.2, he committed the murder of the lorry cleaner Perumal by strangulating him using a nylon rope. The fourth charge was framed against the third accused and is referable to charge No.3 in that he fisted the deceased Perumal when the second accused strangulated him. The fourth charge was framed against the third accused and is referable to charge No.3 in that he fisted the deceased Perumal when the second accused strangulated him. This charge against the third accused is for an offence under Scc.302, I.P.C, read with Sec.34, I.P.C. The fifth and sixth charges were framed against the second accused and accused 3 and 4 respectively for an offence under Sec.201, I.P.C, for having concealed the evidence of the murder committed by them. The seventh charge was of an offence under Sec.396, I.P.C, against accused 1 to4inthattheyaiongwith the approver Venkatcsan and another committed dacoity of the textiles in the lorry during the Course of which they murdered Mani and Perumal. The last charge was against the fifth accused for an offence under Sec. 120-B read with Sec.411, I.P.C, on the allegation that in pursuance of the conspiracy, on 6.12.1985 at about midnight he dishonestly received and retained a lorry load of textile goods worth about Rs.12,00,000 by purchasing the same for a paltry sum of Rs.1,85,000 knowing it to be or having reason to believe that it was stolen property. 3. The trial Judge found the accused 1 to 4 guilty of the first charge, but acquitted the fifth accused of the charge of conspiracy. Accused 1 to 4 were sentenced to undergo rigorous imprisonment for seven years under this charge. Accused 1 and 4 were acquitted of the second charge While the third accused was acquitted of the fourth charge. In respect of the third charge the second accused was found guilty but, no separate sentence was awarded in view of the awarding of the capital punishment on him for an offence under Sec.396, I.P.C. Accused 2 to 4 were convicted for the offence under Sec.201, I.P.C, referable to charges 5 and 6 and each sentenced to undergo rigorous imprisonment for seven years. Under the seventh charge for an offence under Sec.396, I.P.C, accused 1 to 4 were found guilty and each one of them sentenced to death subject to confirmation by this Court. Under the eighth charge the fourth accused was found guilty for an offence under Sec.411, I.P.C, and sentenced to undergo rigorous imprisonment for one year. It was ordered by the trial court that the varying terms of imprisonment awarded to accused 1 to 4 would merge with the sentence of death. 4. Under the eighth charge the fourth accused was found guilty for an offence under Sec.411, I.P.C, and sentenced to undergo rigorous imprisonment for one year. It was ordered by the trial court that the varying terms of imprisonment awarded to accused 1 to 4 would merge with the sentence of death. 4. To substantiate its case the prosecution examined P.Ws.1 to 113, filed Exs.P1 to P153 and marked M.Os.1 to 78. The accused did not examine any witness on their behalf but had marked Exs.D1 to D4. 5. The brief facts which led to this prosecution has to be briefly narrated at this stage: The approver Venkatcsan (P.W.1) belongs to Kottur near Bargur. Four years prior to the occurrence, he went over to Bangalore for eking out his livelihood doing cooly work. He look residence at the village Vangachandra in a portion of the house belonging to P.W.79, on a monthly rental of Rs.50. Behind the room in which P.W.1 was residing accused 1 and 3, Dhadha alias Abdul Razack, P.W.88 and one Shankar were residing. The second accused also resided in the village of Vangachandra as a tenant under P.W.80. Accused 1 and 3 from about July, 1983 worked as cleaners in Kerala Transport Company, Bangalore. P.W.1 was working as a daily cooly in Kerala Transport Company and was earning Rs.30 to Rs.40 daily. The second accused was also working in the same company. Through the second accused P.W.1 had acquaintance with the accused 1, 3 and 4. In pursuance of their acquaintance accused 1 to 4 used to visit the house of P.W.1 from about two or three months prior to the occurrence. Two months prior to the incident, P.W.1 came to know Dhadha alias Abdul Razack through accused 1 and 3. A month later, Dhadha alias Abdul Razack told P.W.1 and accused 1 to 4 that it was not worthwhile earning a wage of Rs.30 or Rs.40 per day and that they could take away a lorry with a load by getting into it and, on the way, tie up the driver and cleaner, sell the stock in the lorry and share the proceeds there of after discarding the lorry at some place. In pursuance thereof Dhadha and the first accused watched the movement of loaded lorries which left Bangalore. In pursuance thereof Dhadha and the first accused watched the movement of loaded lorries which left Bangalore. Since Pongal festival was nearing Dhadha said that number of lorries were bound to go with textile load, which could fetch them net cash and to find out the possibility of quick sale Dhadha took P.W.1 to Bargur on the pretext of enquiring some known textile dealers at that place. On 19.11.1985 P.W.1, the first accused and Dhadha reached Bargur at 8.30 P.M. and happened to meet P.W.19, an erstwhile class-mate of P.W.1 in the company of P. W.18 and the fifth accused. They told the prosecution witnesses and the fifth accused that they were the agents of a Sait from Bangalore and as the Sait had decided to dispose of his textile stock they wanted to know if the fifth accused and the other prosecution witnesses would purchase the said textile load. P.W.18 enquired P.W.1 and later consulted the fifth accused. Ultimately the fifth accused informed P.W.1, the first accused and Dhadha that they will purchase textiles if they were presented with bills and that it would further facilitate them if the load reached before 30.11.1985. Dhadha and the first accused later requested the fifth accused to give them some more time to get the textile stock, which was acceded to by the latter. It is in this background that Dhadha, P.W.1 and accused 1 to 4 decided to waylay a lorry bearing registration No.TNJ 9986 belonging to Jayanthi Roadways and bearing an inscription ‘Palani Transport’ which was to transport textile worth about Rs.12,00,000 from Bangalore to Madras. This lorry was driven by the first deceased Mani and Perumal was the cleaner thereof. The lorry left Bangalore at 5 P.M. and reached Madavalam Check-post at 7 P.M. On the directions of Dhadha, the second accused, who was in ‘Ayyappan Robes’ approached the driver Mani and asked him for six tickets to Madras agreeing to pay Rs.20 each and on condition that the driver must not take any further passengers. P.W.79 saw the accused, Dhadha and P.W.1 near about the check-post. The driver acceded to the request of the second accused and near the driver in the front cabin P.W.1 and accused 1,2 and 4 were seated. The third accused was seated on the side seat. P.W.79 saw the accused, Dhadha and P.W.1 near about the check-post. The driver acceded to the request of the second accused and near the driver in the front cabin P.W.1 and accused 1,2 and 4 were seated. The third accused was seated on the side seat. At 8.47 P.M., the lorry with the load left the check-post near the Hosur check-post the driver and the cleaner stopped the lorry and went for tiffin to the Namakkal Restaurant. At that time Dhadha and accused 1 to 4 told P.W.1 that if the driver and cleaner were tied and left out they would later identify them and, therefore, they had to be murdered. P.W.1 stated to them that he had agreed to commit theft and not to murder and so he would not participate in the crime. Dhadha scolded P.W.1 for attempting to spoil the plan and leaving P.W.1, took the accused 1 to 4 separately to some distance, talked with them and returned. On return all of them told P. W. 1 that if he alighted on the way the lorry driver and the cleaner would suspect and so P.W.1 can continue to travel in the lorry without participating in any of the intended acts. Virtually Dhadha and accused 1 to 4 dragged P.W.1 and put him in the lorry. Dhadha gave one nylon rope to the second accused and retained one with him. He also handed over a button knife to the fourth accused. After the lorry had covered a distance of 7 km. from Krishnagiri, Dhadha questioned accused 1 to 4 as to; when they intended to put the ropes, for the village was nearing. Soon thereafter the fourth accused tampered with the gear rod in the lorry leading to the speed of the lorry being reduced. Dhadha, who was seated behind the driver, strangulated his neck by putting the nylon rope and twisting it. A similar act of strangulation with a nylon rope on the neck of the deceased Perumal was performed by the second accused. Since the rope did not rest properly on the neck of the cleaner he started shouting. The first deceased was pulled down and with his knee Dhadha punched twice or thrice on the private parts of Mani. A similar act of strangulation with a nylon rope on the neck of the deceased Perumal was performed by the second accused. Since the rope did not rest properly on the neck of the cleaner he started shouting. The first deceased was pulled down and with his knee Dhadha punched twice or thrice on the private parts of Mani. While the cleaner was shouting, the second accused violently asked P.W.1 to catch hold of the hands of Perumal which P.W.1 did in a dazed state. The third accused caught hold of the legs of Perumal and ultimately the second accused achieved his object of killing the cleaner of the lorry. Accused 2 to 4 and Dhadha got down from the lorry and directed the first accused and P.W.1 to push the dead bodies from the lorry, which the latter did. The dead body of the first deceased Mani was carried by Dhadha and the second accused while the body of the second deceased Perumal was carried by accused 3 and 4. The third accused also took a bottle of diesel from the lorry. The bodies were taken to a maize field nearby and P.W.1 did not see as to what happened there. The concerned accused and Dhadha returned a little later. It appears that the face of the deceased Perumal was burnt by using the diesel taken out of the lorry. The blood-stained shirt of the second accused and the button knife of the fourth accused were taken away by Dhadha. The first accused drove the lorry upto Bargur. Before reaching Bargur P.W.1 got down from the lorry. The same night at or about 1 A.M. accused 1 to 4 and another met the fifth accused and unloaded the stock in the lorry, in the house of the fifth accused. The first accused and Dhadha left the scene after the unloading of the lorry. Subsequently the missing lorry was traced. So also the dead bodies of Mani and Perumal on 8.12.1985 and 9.12.1985. The accused and P.W.1 appear to have shared the proceeds of the sale of textiles made by the fifth accused to various dealers. The investigation was proceeded with during the course of which the fifth accused was enquired on 17.12.1985. P.W.1 and the fourth accused were arrested on 28.12.1985. The same night accused 2 and 3 were arrested. The accused and P.W.1 appear to have shared the proceeds of the sale of textiles made by the fifth accused to various dealers. The investigation was proceeded with during the course of which the fifth accused was enquired on 17.12.1985. P.W.1 and the fourth accused were arrested on 28.12.1985. The same night accused 2 and 3 were arrested. The first accused was absconding and was able to be apprehended only on 25.4.1986. Witnesses were traced and recoveries were made at the instance of the accused. P.W.1 Venkatesan was taken as an approver after observing all the formalities and pardon was granted to him on 10.3.1986. On 27.3.1986 after completing the investigation the final report was filed in the committal court. Subsequently after the arrest of the first accused on 25.4.1986 a report was sent under Sec. 173(8), Cr.P.C. incorporating the arrest of the first accused, the recovery of properties and tracing of witnesses at his instance. An additional charge-sheet was filed on 4.7.1986. 6. In P.R.C.No.4 of 1986 the Judicial Second Class Magistrate, Krishnagiri committed the appellants to lake their trial before the Court of Session, Dharmapuri. This order of committal was made on 17.10.1986. However, in Cr.R.P.No.1 of 1987 on the file of the Court of Session, Dharmapuri at Krishnagiri, this order of committal was set aside as illegal since the committal magistrate had not examined the approver before committal as is mandatory under Sec.306(4)(a), Cr.P.C. This order in revision was made after hearing the counsel for accused 1 to 5 and the Public Prosecutor on behalf of the State. In the committal Court, after the matter was remitted, advocates Thiru S.Kamalesan and Thiru R.Sankarasubbu entered appearance on behalf of accused 3 and 4. On remand, the case was taken up as P.R.C.No.1 of 1987. All the accused were informed even on 11.2.1987 that the examination of the approver would be on 24.2.1987. In the committal proceedings accused 3, 4 and 5 appeared through counsel and the other accused appeared in person. All the accused did not want to cross examine the approver during committal and reserved cross-examination at the Sessions stage, as is apparent from the contents of the committal order. On 26.2.1987 the accused were committed to take their trial before the Court of Session, Dharmapuri at Krishnagiri. 7. All the accused did not want to cross examine the approver during committal and reserved cross-examination at the Sessions stage, as is apparent from the contents of the committal order. On 26.2.1987 the accused were committed to take their trial before the Court of Session, Dharmapuri at Krishnagiri. 7. On 27.4.1987 accused 2 to 4 who were present before the Court of Session, filed a petition praying for six months’ time to engage a counsel to get themselves released on bail and for the conduct of the trial or for fixing a date for the trial in the usual and normal course. At this stage, it must be mentioned that accused 2 and 3 had approached this Court in Crl.M.P.No.11373 of 1986 to quash the order of remand and had complained that there was no progress in the trial court and the trial was likely to be considerably delayed. This Court directed the trial court to give top priority for this trial. This order was made on 1.12.1986, It is apparent that accused 2 and 3 had taken different stands in this Court and the trial Court. Whatever it might be, the trial Court adjourned the proceedings to 30.6.1987 and informed all the accused to engage counsel before then. Even on 28.4.1987 the second accused had sent another petition to the trial Court praying for rejection of the prayer made in the petition dated 27.4.1987 and requested further steps being taken in the matter of trial with sympathy since he was confined in jail, for quite a length of time. By letter dated 30.7.1987 addressed to the Superintendent, Central Prison, Salem-7 the Sessions Judge directed the Superintendent to inform the accused that several witnesses were coming to the Court from far off places and that the trial would positively be held on 13.8.1987. It is also seen from the contents of the letter that the accused had already been informed that they had to engage counsel to defend them, at trial. All the accused who were questioned by the committal court stated that they had sufficient means to engage their own counsel. After informing the accused about the trial date, communication was duly sent to the Court of Session by the Superintendent, Central Prison and this communication bears the court seal of 7.8.1987. All the accused who were questioned by the committal court stated that they had sufficient means to engage their own counsel. After informing the accused about the trial date, communication was duly sent to the Court of Session by the Superintendent, Central Prison and this communication bears the court seal of 7.8.1987. On 10.8.1987 the second accused had made a request for appointment of a counsel at State’s cost since he was unable to engage one himself. Accused 3 and 4 on the date of trial (13.8.1987) filed applications stating that the counsel they had engaged had not appeared in Court on their behalf and therefore, prayed that a counsel be engaged by the Court on their behalf for the proceedings to be continued. In the records we do not find any such application made by the first accused, but, it is fairly clear from the endorsements made by the Sessions Judge that only on 13.8.1987 counsel have been engaged by the Court to defend the accused. P.W.1, the approver and three other witnesses were examined and cross-examined on the same day. 8. When this matter was taken up for hearing on 12.6.1989, Thiru R.Sankarasubbu, learned counsel appearing for accused 1 and 2 contended, (i) the trial Judge had not given sufficient time for the accused to engage a counsel of their choice in this case, which involved the imposing of the capital sentence; (ii) In spite of their protests the trial court engaged the counsel not agreeable to the accused, on the date of the trial; (iii) The counsel engaged by the State were not allowed sufficient time to prepare for the defence especially when the case had to be decided on the version of the approver and other circumstantial corroborating pieces of evidence. According to him, the procedure adopted by the trial Court in having engaged a counsel to defend the accused on the date of trial and the further conduct of the trial without sufficient time being furnished to the counsel to prepare for the defence, on the same date, would be contrary to the concept of fair trial, for, the appellants will be deprived of their life in breach of the fundamental right under Art.21 of the Constitution, which lays down that no person shall be deprived of his life or personal liberty except in accordance with the procedure established by law. He would refer to Sec.304(1), Cr.P.C, and submit that in a trial before the Court of Session, when the accused is not represented by a pleader and if it appeared to the Court that the accused did not have sufficient means to engage a pleader, the Court had to assign a pleader for the defence at the expense of the State. He would also refer to Rules 166 and 167 of the Criminal Rules of Practice which read as hereunder: “166. 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. The Court may, subject to condition (2) above, engage a pleader to defend an accused person against any other charge, if it considers it desirable to do so in the interest of justice.” “167. Pleader to be given papers: Pleaders appointed under the above rule shall be furnished with the necessary papers and allowed sufficient time to prepare for the defence.” Rule 166 enjoins the High Court or a Court of Session to engage a pleader to defend an accused person if the charge against him is such that a capital sentence is possible and it appeared that the accused had not engaged a pleader and is not possessed of sufficient means to do so. The second part of the Rule may not require consideration on the facts of this case. In terms of Rule 167, pleaders appointed will have to be furnished with necessary papers and allowed sufficient time to prepare for the defence. 9. Though the three-fold submissions were put forth by Thiru Sankarasubbu, he was unable to furnish details about the date of appointment of counsel, objections taken thereto and proof of rejection of request made for time, to engage counsel, to appreciate his contentions. We, therefore, called for the records from the trial court and the details stated in the earlier part of the judgment arise out of the perusal of the record by us. We, therefore, called for the records from the trial court and the details stated in the earlier part of the judgment arise out of the perusal of the record by us. The records indicate that counsel were engaged for accused 3 and 4 by the Court only on 13.8.1987 and it must be the counsel for the second accused also had taken the brief only on 13.8.1987, since the written request of the second accused for a Court-counsel had reached the Court only on 10/ 11.8.1987. Though we do not find from the records the date of appointment of the counsel for the first accused, it does not appear to have been earlier than 13.8.1987 for all the accused had desired initially to engage counsel of their choice and sufficient time had been granted by the trial court on that score. During the course of the trial, records indicate that the counsel engaged by the Court had been served notices on certain applications taken out by the State, and subsequently all of them had filed their written arguments; at the conclusion of trial. Throughout the fifth accused had been defended by the counsel of his choice. After the receipt of the records Thiru Sankarasubbu, learned counsel for the appellants 1,2 and 3 conceded that the provisions of Sec.304(1), Cr.P.C, will not be attracted since the trial court had engaged counsel on behalf of the accused. Even otherwise it is clear from the statements of the accused themselves before the committal court that they had sufficient means to engage a counsel, and they had throughout wanted a counsel of their choice to represent them, for which they were taking steps. Further, learned counsel also gave up his argument, on perusal of records that the counsel were appointed by the trial court against the wishes of the accused. We are also satisfied from the records that the accused had been given sufficient time to engage counsel of their choice and only when they expressed their inability, the Court of Session had rightly engaged the counsel to plead for the defence. We are also satisfied from the records that the accused had been given sufficient time to engage counsel of their choice and only when they expressed their inability, the Court of Session had rightly engaged the counsel to plead for the defence. The learned counsel would therefore restrict his argument to the plea ofnonconformity of the concept of fair trial in the background of adequate time not having been allowed to the counsel to prepare for the defence when they had been engaged only on 13.8.1987, on which date the approver and three other witnesses were put in the witness box, examined and cross-examined. 10. We have heard Thiru Arumugham, learned Public Prosecutor appearing on behalf of the respondent. The only principal ground which survives consideration raises an important question of law. Rule 167, Criminal Rules of Practice specifically ordains that the pleaders appointed under Rule 166 shall be furnished with necessary papers and allowed sufficient time to prepare for the defence. Rule 166 contemplates two contingencies: (1) To engage a counsel, the charge against the accused must be such that capital sentence is possible; and (2) It must appear that he had not engaged a pleader and was not possessed of sufficient means to do so. Though the appellants have stated in the committal court that they had means to engage a counsel, they had not been able to do so and conceding their inability had prayed for the appointment of counsel. It cannot be gainsaid that once a counsel is engaged by the Court to defend an accused he must be allowed sufficient time to study the case and prepare for the defence, after the necessary records are furnished to him. 11. Indigence brought to the notice of Court at any stage should never be a ground for denying fair trial or equal justice. Particular attention should therefore be paid to appoint competent counsel equal to handling the complex cases, not patronizing gestures to raw entrants to the Bar. Sufficient time and complete papers should also be made available to the advocate chosen, so that he may serve the cause of justice with all the ability at his command and the accused may also feel confident that his counsel chosen by the Court had adequate time and material to defend him properly. 12. Sufficient time and complete papers should also be made available to the advocate chosen, so that he may serve the cause of justice with all the ability at his command and the accused may also feel confident that his counsel chosen by the Court had adequate time and material to defend him properly. 12. What is sufficient time may vary from case to case and a rigid strait jacket formula cannot be adopted. On the sufficiency of means, the Sessions Court in making its decision, shall not be bound by; the report of the committing Magistrate. The intention of Rule 166 of the Criminal Rules of Practice, is perfectly clear, in that no accused person should remain totally unrepresented by a lawyer, if he is being tried on a charge for which a capital sentence can be awarded. We have already quoted Rule 167 of the Criminal Rules of Practice in full. That Rule requires the counsel appointed, to be furnished with necessary papers and be allowed sufficient time to prepare for the defence. The facts mentioned by us earlier clearly indicate that counsel were appointed for the appellants only on 13-8-1987, the date on which the trial commenced. It is, therefore, obvious that sufficient time was not allowed to the respective counsel to prepare for the defence of the appellants. The case records perused by us clearly portrays that as soon as the counsel were appointed, the examination of witnesses began. P.W.1, the approver is the main witness to unfold various events and his evidence will have to be necessarily tested in the light of the several corroborating circumstances sought to be put forth by the prosecution, in the event of the approver’s evidence being found to be reliable. The approver, naturally has made statements during investigation during pardon proceedings and again deposed before the committal court. Sufficient time must be available for the counsel to peruse these three different statements and a study it in the background of the other evidence sought to be let in by the prosecution as corroborating circumstances, before a defence could be shaped in consultation with the accused. Sufficient time must be available for the counsel to peruse these three different statements and a study it in the background of the other evidence sought to be let in by the prosecution as corroborating circumstances, before a defence could be shaped in consultation with the accused. It may be that the counsel appointed by the Court could have prayed for some more time for preparing for the defence or in any event could have deferred cross-examination of the important witnesses examined on 13-8-1987 till sufficient time was available for them to get ready for the defence. However, Rule 167 casts a duty on the Court itself to grant sufficient time to the counsel for this purpose and the records should show that the Rule was complied with by grant of sufficient time, which the Court considered would meet the ends of justice, in the particular circumstances. The records show that the trial was proceeded with immediately after appointing the counsel and in fact if any time at all was available it was too nominal. We are constrained to hold that there was non compliance with the requirements of this Rule, for, a mere formal compliance will not carry out the object behind it. 13. We have looked into the cross-examination of the approver made on 13-8-1987. It is unfortunate that the examination of the important witnesses had not been postponed sufficiently enough to have a fair conduct of the trial. We are not able to hold that the cross-examination had not suffered for want of time to facilitate the counsel to equip themselves fully. We emphasis that there should be a sensitive approach made by the Court to see that the accused felt confident that his counsel chosen by court had adequate time and material to defend him properly. 14. Once we are satisfied that there has been failure to comply with the requirements of Rule 167 of the Criminal Rule of Practice thereby prejudicing the defence, which has to be inferred, the trial will be vitiated. As a consequence thereof we have to necessarily quash the convictions and sentences imposed on the appellants. Since we are holding that the convictions are void, because of an error in the procedure adopted in the trial, we direct that the appellants shall be tried afresh on all the charges after complying with the requirements of law. As a consequence thereof we have to necessarily quash the convictions and sentences imposed on the appellants. Since we are holding that the convictions are void, because of an error in the procedure adopted in the trial, we direct that the appellants shall be tried afresh on all the charges after complying with the requirements of law. The view we have taken is fortified by the enunciation of law by the Supreme Court in Bashira v. The State of U.P., A.I.R. 1968 S.C. 1313. 15. As this state we gave our careful thought to the need of a de novo trial when it is possible to infer that after the first few days, the defence counsel would have had effective opportunity to cross-examine the latter witnesses. If that be so, we felt that instead of ordering de novo trial, retrial could be restricted to the important witnesses alone and the evidence already recorded after the initial stages could still be retained. However, we are unable to do so, since in a case of this type where the foundation of the prosecution rests on the approver’s evidence the cross-examination of this witness may lead to a possible confrontation of the other witness, on the demeanour of some of the witnesses may also be relevant, if that be so restriction, the retrial to the first few witness may not ultimately serve the cause of justice. Therefore, we have no alternative other than to direct a de novo trial. 16. We are informed that Thiru K.Natarajan, the Sessions Judge, who tried this case, continues to preside over the Court of Sessions, Dharmapuri at Krishnagiri. Since this Judge had taken a view on the evidence adduced before him, it is but proper that this case must be tried by another Judge. We therefore remand this case to the Court of Sessions, Salem and direct the Principal Sessions Judge, Salem either take up the trial himself or have it disposed of through any of the Additional Sessions Court at Salem. 17. Before the trial is commenced the Court of Sessions, Salem will appoint counsel for all the appellants except the fifth accused under Rule 166, Criminal Rules of Practice, sufficiently in advance in order to enable the counsel to prepare for the defence, and then proceed with trial. 17. Before the trial is commenced the Court of Sessions, Salem will appoint counsel for all the appellants except the fifth accused under Rule 166, Criminal Rules of Practice, sufficiently in advance in order to enable the counsel to prepare for the defence, and then proceed with trial. However, in the event of accused 1 to 4 choosing to have their, own counsel, the trial Judge will permit them to do so within a reasonable time and consequentially fix up trial date. We direct the Court of Sessions, Salem to dispose of the trial within four months of the receipt of the records from this Court. The office is directed to despatch the records to the Court of Sessions forthwith. The referred trial and the Criminal Appeals are disposed of accordingly, by quashing the convictions and sentences imposed on the appellants by the trial Court and directing a de novo trial on all charges by another competent Court.