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2002 DIGILAW 1225 (RAJ)

Sudama Das v. State of Rajasthan

2002-07-15

F.C.BANSAL, S.K.KESHOTE

body2002
JUDGMENT 1. - This appeal is filed by accused appellant Sudama Das son of Gurmukh Das through jail against the judgment and order of the Special Court (Women Atrocities & Dowry Cases), Kota dated 6th of March, 2000 in Sessions Case No. 68 of 1998, whereby the accused appellant was convicted, for committing murder of his wife and daughter, under Section 302 Civil Procedure Code and was sentenced to undergo Life Imprisonment and a fine of Rs. 1000/-. In default of payment of fine, he was further to undergo six months rigorous imprisonment. 2. Learned counsel for the accused appellant and the learned Public Prosecutor have raised manifold contentions in this appeal but as we are satisfied that the judgment of the learned trial court cannot be allowed to stand on the ground that the accused appellant has neither been provided free legal aid nor Amicus Curiae has been appointed, his case is prejudiced, thus it is not necessary to digest, discuss and give decision on each and every contentions raised by the learned counsel for the parties. 3. From the proceedings of this case in the trial court we find that Shri Virendra Singh Hada was the counsel who put in appearance for the accused on 11.8.1994. After hearing the learned Public Prosecutor and the learned counsel for the accused, the charges were framed against the accused appellant for the offence punishable under Section 302 of the Indian Penal Code and the matter was fixed for prosecution evidence. The statements of Anand Kumar (PW-1) were recorded on 27.3.1995. There is an endorsement of the trial court on the statement that Shri Girraj Kumar Sharma, who was appointed as an Amicus Curiae in the matter to represent the case of the accused, has made a statement in writing in the form of application that the accused has instructed him not to appear in the matter for him and thus he has not appeared for him nor plead his case. There is an endorsement on this statement that though opportunity was given to accused but he refused to cross-examine the witness. 4. Statements of Manoj Kumar (PW-2) were recorded on 4.7.1995. There is an endorsement on the statements though the opportunity has been given to the accused to cross examine this witness but he has refused to do it. 5. Statements of Kishan Lal (PW3) were recorded on 1.8.1995. 4. Statements of Manoj Kumar (PW-2) were recorded on 4.7.1995. There is an endorsement on the statements though the opportunity has been given to the accused to cross examine this witness but he has refused to do it. 5. Statements of Kishan Lal (PW3) were recorded on 1.8.1995. Thereon also there is an endorsement that despite of being given an opportunity, the accused refused to cross-examine this witness. 6. Statements of Shatrughan Lal (PW-4) were recorded on 1.8.1995 and so far as the cross-examination of this witness is concerned, identical note is there as was put on the statements of other witnesses recorded earlier. 7. Statements of Gopaldas (PW-5) were recorded on 3.8.1995. Thereon also similar endorsement is there as what it was put on the statements of earlier witnesses regarding cross-examination. Janki Devi (PW-6) was examined on 30.8.1995. Only one question appears to have been put by the accused to this witness in cross-examination. Mohd. Rafiq (PW-7) was examined on 30.8.1995. There is an endorsement on his statement that though the accused was given an opportunity to cross-examine this witness but he refused to do so. Pawan Kumar Soni (W-8) was examined on 20.x.1995. There is an endorsement on the statements of this witness though opportunity was given to him but he refused to cross-examine. Statements of Rajendra Prasad (PW-9) were recorded on 21.9.1995. There is an endorsement on his statement-cross-examination-nil. Statements of Babu Lal (PW-10) were recorded on 21.9.1995. On his statements also the court has put note that the accused has refused to cross-examine him. Amar Lal (PW-11) was examined on 21.9.1995 and thereon the court has put an endorsement despite of being given an opportunity the accused has refused to cross-examine this witness. Similar endorsement is there on the statements of Dharam Singh (PW-12) recorded on 21.9.1995, Mahesh Kumar Sharma (PW-13), recorded on 27.10.1995, Mahendra Singh (PW-4), recorded on 27.10.1995, Pawan Kumar Panjabi (PW-15), recorded on 20.11.1995, Shyam Sundar Sharma (PW-16), recorded on 18.12.1995, Dev Lal (PW-17), recorded on 31.1.1996, Dr. Similar endorsement is there on the statements of Dharam Singh (PW-12) recorded on 21.9.1995, Mahesh Kumar Sharma (PW-13), recorded on 27.10.1995, Mahendra Singh (PW-4), recorded on 27.10.1995, Pawan Kumar Panjabi (PW-15), recorded on 20.11.1995, Shyam Sundar Sharma (PW-16), recorded on 18.12.1995, Dev Lal (PW-17), recorded on 31.1.1996, Dr. Y.K. Sharma (PW-18), recorded on 1.2.1996, Girraj Swami (PW-19), recorded on 1.2.1996, Narendra Gautam (PW- 20), recorded on 1.2.1996, Guran Mal (PW-21), recorded on 7.2.1996, Deepak (PW-22), recorded on 7.3.1996, Moti Ram (PW-23), recorded on 19.6.1996, Dharam Chand Jain (PW-24), recorded on 2.7.1996, Prakash Chand (PW-25), recorded on 2.7.1996, Ashok Kumar Agarwal (PW-26), recorded on 25.9.1996, Samim Razak (PW-27), recorded on 25.9.1996, Rajendra Sharma (PW-28), recorded on 25.9.1996, Jimi Josaf (PW-29), recorded on 25.9.1996, Abhishek Jain (PW-30), recorded on 25.9.1996, Manoj Kumar (PW-31), recorded on 25.9.1996, Nathu Singh (PW-32), recorded on 19.12.1996, Laxmi Narain (PW-33), recorded on 10.1.1997, Mohan Lal Yogi (PW-34), recorded on 11.4.1997 and Yogendra Kumar Joshi (PW-35), recorded on 12.5.1997. 8. From the order-sheet dated 1st of September, 1997 of the proceedings in the trial court we find that, as per the statements of the accused made before the Court, Shri Hari Mohan Rajdaar, Advocate, was called. He was asked by the Court whether he is the Advocate of the accused but he denied. We find from this order-sheet that Shri G.K. Sharma, Advocate was appointed as Amicus Curiae in this matter but accused has refused to take assistance of him and stated that last opportunity may be granted to him to engage his Advocate. The matter was adjourned to 22nd of September, 1997. 9. On 22nd of September, 1997, Shri Ahmad Bux, Advocate, filed Vakalatnama for the accused. He prayed for time to file an application. The matter was adjourned to 6th of October, 1997. On that date the Advocate of the accused filed an application under Section 311 of the Criminal Procedure Code, the copy of which was given to the Additional Public Prosecutor and the matter was adjourned for arguments thereon, to 16th of October, 1997. On 16th of October, 1997 the Public Prosecutor filed reply to that application and the matter was adjourned to 23rd of October, 1997 for arguments on that application. On 23rd of October, 1997 arguments on that application were heard and the matter was ordered to be placed on 5th of November, 1997 for pronouncement of order. On 16th of October, 1997 the Public Prosecutor filed reply to that application and the matter was adjourned to 23rd of October, 1997 for arguments on that application. On 23rd of October, 1997 arguments on that application were heard and the matter was ordered to be placed on 5th of November, 1997 for pronouncement of order. At this stage, the accused filed an application that he does not want to continue Shri Ahmad Bux as an Advocate in his matter and he prayed for time to engage another Advocate. The matter was adjourned to 5th of November, 1997. 10. From the order-sheet dated 5th of November, 1997 we find that the trial court has given an understanding to the accused that he may think to engage his Advocate. The accused prayed for the time to think over this matter, and accordingly, the matter had been adjourned to 21st of November, 1997. On the next date, the Presiding Officer was on leave. The matter was adjourned to 3rd of December, 1997. On 3rd of December, 1997 the accused filed an application for bail. The accused has also filed an application to appoint an Advocate at the Government costs in his case. Again the trial court made him to understand that he may, on the Government expenses, take the assistance of Amicus Curiae and Shri Jail Ahmad was appointed as Amicus Curiae. The accused was given an understanding that the Amicus Curiae will not be changed. The matter was adjourned to 16th of December, 1997 for argument on the application filed by the accused under Section 311 of the Criminal Procedure Code On 16th of December, 1997, the arguments on that application aforestated were heard and the matter was posted on 18th of December, 1997 for pronouncement of order. On 18.12.1997 on that application of the accused the order has been passed and same was dismissed 11. From the order-sheet dated 18.12.1997 of the trial court we find that the accused has engaged different Advocates from time to time but later instructed them not to appear in the case. He was also provided with the assistance of Amicus Curiae but he did not avail of their services. On several occasions, on his application to engage Advocate, opportunity was granted to him by the trial court. He was also provided with the assistance of Amicus Curiae but he did not avail of their services. On several occasions, on his application to engage Advocate, opportunity was granted to him by the trial court. The trial court has opined that all these acts are being done by the accused to delay the trial of the case. 12. At one stage the accused has given out by the trial court that the Advocate of his choice can be appointed as Amicus Curiae in his case, but this suggestion of the Court has also not been accepted. Though, from the proceedings of the case we find that the accused is in habit of engaging the Advocates and later on instructed them not to appear in his case. The assistance of the Amicus Curiae has also been provided to him but he has not availed of the same. At one stage the court has given him understanding that any Advocate named by him could be appointed as Amicus Curiae but that suggestion has also not been accepted. This conduct of the accused fortifies the fact that neither he wants to engage his own Advocate nor permitting the court to appoint Amicus Curiae to proceed with the trial. This conduct of the accused appellant, though, needs to be deprecated but it is a case of double murder and the accused-appellant is to be provided full opportunity to defend himself. 13. Article 21 of the Constitution of India provides that before a person is deprived of his life or liberty, the procedure established under law must be strictly followed. It must not be departed to disadvantage of the accused. The reference may also have to the provisions of Article 39A of the Constitution of India. The Parliament has enacted the Legal Services Authorities Act, 1987. This Act has come into force. Under this Act a person who has not sufficient means to defend his case is to be provided free legal service. The accused is in judicial custody and, in our opinion, whether he asks or not, the court is to provide him free legal service. In a criminal case leaving apart this legal right available to a person under Section 12 of the Act aforestated, there are the provisions in Criminal Procedure Code 1973 to give free legal services to the accused in trial. In a criminal case leaving apart this legal right available to a person under Section 12 of the Act aforestated, there are the provisions in Criminal Procedure Code 1973 to give free legal services to the accused in trial. Reference here may have to Sections 303 and 304 of the Criminal Procedure Code, 1973. Section 303 provides that any person accused of an offence before a criminal court or against whom proceedings are instituted under the Code, may have a right to defend by a pleader of his choice. Section 304 of the Criminal Procedure Code makes a provision for legal aid to accused at the State expenses in certain cases. This Section provides that in a trial before the court of Sessions, if the accused is not represented by a pleader and where it appears to the court that the accused has no sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the State expenses. In this case, as said earlier, the accused has been given the counsel at the State expenses to defend him. This order of the trial court leaves no doubt whatsoever in our mind that the accused was not represented by an Advocate and he has no sufficient means to engage a pleader. 14. The accused, no doubt, sometimes had his own Advocate but from his this conduct it cannot be taken and expected that he has sufficient means to engage the Advocate. The Advocate whosoever engaged by him at later stage, either by expressing reasons or otherwise, did not appear for the accused in the trial. For this, one of the reasons may be that he would not have been in a position to pay their fee. Either way where an Advocate is to provided in accordance with the provisions of Section 12 of the Legal Services Authorities Act, 1987 or Sections 303 and 304 of the Criminal Procedure Code, 1973 to an accused in trial in Sessions Court, he is to be provided an Advocate. 15. Section 12 of the Act of 1987 and more particularly Clause (g) thereof provides that a person who has to file or defend a case shall be entitled to the legal services under the Act being in custody. 15. Section 12 of the Act of 1987 and more particularly Clause (g) thereof provides that a person who has to file or defend a case shall be entitled to the legal services under the Act being in custody. Section 303 of the Criminal Procedure Code gives a right to an accused of an offence before a criminal court, to be defended by a pleader of his choice. Section 304 of the Criminal Procedure Code provides for legal aid to accused at State expenses in certain cases and this case falls under that category. The accused appellant, as said earlier, was advised by the court below to engage an Advocate to represent his case or an Advocate of his choice may be appointed as Amicus Curiae but he has desired to engage his own counsel. The approach of the accused in this case may not be proper, cooperative or he would have been adopting tactics to delay the proceedings. But fact remains that he has been charge-sheeted for double murder, an offence punishable under Section 302 of the Indian Penal Code and none of the prosecution witnesses has been cross-examined. He is in judicial custody. After engaging Advocate he filed an application under Section 311 of the Criminal Procedure Code for recalling of the witnesses and that application has been dismissed by the learned trial court. Though, the approach of the learned trial court and the grounds given for rejection of the application filed by the accused-appellant under Section 311 of the Criminal Procedure Code which reflects from the order dated 18.12.1997, may not be wholly unreasonable or illegal but none of 35 witnesses produced by the prosecution has been cross-examined by him. He has desired to defend himself in the case but for one or the other reason for which he may himself be responsible to certain extent, he is not defending himself. He has been convicted by the Sessions Court for the offence punishable under Section 302 Indian Penal Code. 16. In the facts and circumstances of this case we are satisfied that in the interest of justice last opportunity be granted to the accused appellant to defend himself in the case. The accused is in jail and grant of this opportunity will not result in failure of justice nor will cause irreparable injury to the prosecution. 17. Accordingly, this appeal succeeds and the same is allowed. The accused is in jail and grant of this opportunity will not result in failure of justice nor will cause irreparable injury to the prosecution. 17. Accordingly, this appeal succeeds and the same is allowed. The judgment and order dated 6.3.2000 of Special Judge (Women Atrocities and Dowry Cases), Kota whereby the accused-appellant has been convicted and sentenced for the offence under Section 302 of the Indian Penal Code, is quashed and set aside. The order of the learned trial court dated 18.12.1997 passed on the application filed by the accused-appellant for recalling the witnesses for cross-examination is also set aside and the application is granted. Opportunity is afforded to the accused-appellant to cross-examine the witnesses. 18. We find sufficient jurisdiction and merits in the prayer made by the learned Public Prosecutor that it is an old matter and this court may give direction to the court below to decide it expeditiously. The learned court below is directed to restore the case to its original number. The court below itself may decide the case or it may be sent to the Fast Track Court. Either of the Courts, which has to complete the trial of the case and give decision, is directed to decide the same within a period of three months from the date of receipt of certified copy of this order. The learned trial court shall provide assistance of Amicus Curiae to the accused to defend himself in the case at the State expenses. The prosecution shall make all endeavour and would see that the prosecution witnesses whose statements have already been recorded, are produced on the date fixed by the court for their cross-examination. The accused-appellant is to give his fullest cooperation to the trial court to decide the matter within stipulated time. He wilt not adopt any tactics to delay the proceedings nor he will disturb the proceedings by instructing the Amicus Curiae appointed not to appear.Appeal allowed. *******