JUDGMENT Hon’ble Imtiyaz Murtaza, J.—Present Criminal appeal has its genesis in impugned judgment and order dated 5.6.2008 rendered in S.T. No. 108 of 2006 (State v. Harveer and another). The trial of accused in the case culminated in conviction of the appellant Harveer under Sections 302, 324, 120-B, IPC and he was visited with penalty of death. 2. The appeal aforesaid, it would appear was admitted by this Court on 24.7.2008. Thereafter, the appeal, it would appear, was listed on 10.7.2009 and again on 13.7.2009. On 14.7.2009, it transpired that the appellant was not represented and therefore, the Court appointed Sri Raghuraj Kishore Advocate as Amicus Curiae and directed that the appellant be informed whether he would like to be represented by Amicus curiae or would prefer to engage lawyer of his own choice. After the compliance report had been received, the appeal was heard on merit and judgment was reserved on 8.9.2009. 3. The author of the F.I.R in the case is one Ghasitu resident of village Nagal P.S. Chhaprauli Distt Baghpat. The report submitted to the police is to the effect that on 5.6.2005 at about 7 a.m., his brother Harveer had murdered his eldest daughter namely Km. Brijbala aged about 14 years by cutting her throat by Khurpi (a flat bladed tool) and he roamed about around the village with truncated head. It is further stated that the village people tried to catch hold of him but he fled away by throwing the truncated head near the dead body. It is also stated that he also left behind his blood smeared cloths. It is also stated that the deceased was ailing for the last three months and it was believed by the accused that she was possessed by some evil spirit. At times, she fell unconscious and at times, she used to prattle talking nonsense. It is further stated that she had been murdered on account of superstition induced by some sorcerer. It is also stated that the incident was witnessed by Shimla mother of the deceased and she also tried to ward off the blow inflicted on deceased by the appellant but she was also assaulted and as a result she suffered injuries on her hands. 4. The investigation of the case was taken over by S.I. Indra Pal Singh who prepared site plan Ex.ka 8, and also collected blood stained earth and simple earth Ex. 4. The investigation of the case was taken over by S.I. Indra Pal Singh who prepared site plan Ex.ka 8, and also collected blood stained earth and simple earth Ex. ka. 9. He also recorded statements of the witnesses. The accused Peru was thereafter arrested. Subsequently, the investigation was made over to S.O. Mehar Singh who arrested accused Harveer and submitted charge-sheet in the Court. 5. The prosecution examined P.W. 1 Ghasitu who is author of the F.I.R., P.W. 2 Arvind Kumar, Scriber of the report, P.W.3 Smt. Shimla, mother of the deceased and ocular witness, P.W.4, Rajpal, ocular witness of the occurrence, P.W. 5 Sukhpal, ocular witness of the occurrence, P.W. 6 Constable Subhash Solanki who prepared the G.D.entry, P.W. 7 Dr. Krishna Kumar, who conducted post mortem report, P.W. 8 S.I Gaje Singh who prepared inquest report, P.W. 9 S.I. Indra Pal Singh first investigating officer, P.W. 10 S.O.Mehar Singh Investigating officer who submitted charge-sheet and P.W. 11 Dr. Ramesh Chandra who examined P.W.3 Smt. Shimla mother of the deceased. 6. We have heard Sri Raghuraj Kishore Amicus curiae, Sri D.R. Chaudhary G.A and Sri Arunendra Singh and Sri M.S. Yadav, A.G.A for the State. To begin with, learned counsel advanced an argument having complexion of preliminary argument stating that the appellant was considerably prejudiced as he was unrepresented by any counsel during the trial of the matter. The learned counsel in order to prop up his argument, drew attention to statute and substantially argued that the conviction of the accused has been recorded without appointing counsel for the accused under the legal aid scheme was not represented by a pleader and it was amply clear to the Court below that the accused was not possessed of sufficient means to engage a pleader. 7. The appointment of a counsel under the Legal Aid Scheme is meant to avoid or prevent miscarriage of justice and a conviction on the basis of a plea of guilty by an accused person who did not understand the law. However, it is settled in law that where the accused has pleaded guilty or where the facts which constitute the offence are unmistakably admitted, there would be no miscarriage of justice and the conviction would not be vitiated. 8. We have scrutinised the record vis-a-vis the submission of the learned counsel for the appellant. However, it is settled in law that where the accused has pleaded guilty or where the facts which constitute the offence are unmistakably admitted, there would be no miscarriage of justice and the conviction would not be vitiated. 8. We have scrutinised the record vis-a-vis the submission of the learned counsel for the appellant. From a scrutiny of the order sheet it would appear that on 12.5.2008, D.W. 1 was examined and Harveer accused stated in the Court that he was incarcerated in jail and has not been assigned any lawyer to defend him and the same day, the trial Court directed to assign amicus curiae out of enlisted lawyers. On 29.5.2008, Sri Ram Kumar Tomar was appointed as amicus curia. On 31.5.2008, the amicus curiae appointed by the trial Court made an application quintessentially stating therein to recall P.W.3 whose statement was recorded on 13.11.2007 and 8.1.2008. However, the trial Court disallowed the application on the premises that the statement of afore-stated was recorded in the presence of the accused and that the learned counsel did not press into service any point of pivotal significance on which the witness should be recalled for cross-examination. We have also gone over the testimonies of witnesses examined by the prosecution and there is nothing discernible anywhere in the entire statement that accused Harveer was afforded opportunity to cross-examine any of the witnesses relied upon by the prosecution. We have also gone the statements and it leaves no manner of doubt that if there is any cross-examination, it is of accused Peru who has since been purged of the charges and has been granted clean acquittal by the Court below. It is thus amply clear that all the witnesses had already been examined before the amicus curiae could be assigned to accused Harveer for defending him. It is thus amply clear that all the witnesses had already been examined before the amicus curiae could be assigned to accused Harveer for defending him. To be precise, P.W. 1 Ghasitu was examined and cross-examined by the accused Pheru on 21.8.2006, P.W. Arvind Kumar was examined on 5.8.2005, P.W. 3 Smt. Shimla, mother of the deceased was examined and cross-examined by accused Pheru on 13.11.2007 and again on 8.1.2008, P.W. 4 was examined and cross-examined by accused Pheru on 14.2.2008, P.W. 5 Sukhpal was examined and cross-examined by accused Pheru on 14.2.2008, P.W. 6 examined and cross-examined by accused Pheru on 27.2.2008, P.W. 7 was examined and cross-examined by accused Pheru on 12.3.2008, P.W. 8 S.I. Gaje Singh was examined and cross-examined by accused Pheru on 26.3.2008, P.W. 9 S.I.Indra Pal Singh was examined and cross-examined by accused Pheru on 10.4.2008, P.W. 10 was examined and cross-examined by accused Pheru on 1.5.2008 and lastly, P.W. 11, Dr. Ramesh Chandra was examined and cross-examined on behalf of accused Pheru on 1.5.2008. As stated supra, the accused moved an application for assigning lawyer on 12.5.2008 and on 31.5.2008, amicus curiae was appointed. 9. Right to make cross-examination means right to cross-examine through a lawyer of accused’s choice. This right has to be read in the backdrop of Article 22 of the Constitution of India. The doctrine audi alteram partem has to come into play which means that no man should be condemned unheard. A part of this doctrine is that if any reliance is placed on evidence or record against a person then that evidence or record must be placed before him for his information, comment and criticism. It is all that is meant by the doctrine of audi alteram partem. It is well enunciated that formal cross-examination is procedural justice and it is governed by rules of evidence. It is the creation of Courts and of legal and statutory justice. The aforesaid doctrine certain includes that any statement of a person before it is accepted against somebody else that somebody else should have an opportunity of meeting it whether by way of interrogation or by way of comment. So far as that somebody else has had a fair and reasonable opportunity to see, comment and criticise the evidence, the tests of doctrine aforesaid stands satisfied. 10. So far as that somebody else has had a fair and reasonable opportunity to see, comment and criticise the evidence, the tests of doctrine aforesaid stands satisfied. 10. There is nothing on record to suggest that it was a case in which counsel appearing for the accused declined to cross-examine the witnesses. Every noon and corner of the record gives manifestation of the fact that the accused Harveer Singh was not properly represented by the counsel and therefore, the conclusion is irresistible that he was prejudiced in his defence and entire trial therefore stands vitiated. 11. Yet another aspect to be reckoned with is whether it would suffice if the testimonies are recorded in the presence of an accused who is unaided by the services of a counsel. Section 304, Cr.P.C clearly envisages that where in a trial before the Court of session, the accused is not represented by a pleader and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State. We would not make an idle parade of learning by citing decisions on the point which it would suffice to say are legion. The crux of various decision is that the entitlement to free legal aid is not dependent on the accused making an application to that effect and the Court is obliged to inform the accused of his right to obtain free legal aid. We may revert to the facts of the case. As stated supra, it is quite clear that only co accused pheru was represented and appellant Harveer was unrepresented till the last witness was examined in the case. The learned Sessions Judge tried to explain away the matter by stating that the statements of the witnesses were recorded in the presence of the accused Harveer. 12. Few of the decisions shedding light on the aspect under discussion may be noticed. The ex-cathedra decisions are Tyron Nazareth v. State of Goa, 1994 Supp (3) SCC 321, Khatri (II) v. State of Bihar, 1981 SCC (Crl.) 228 and Sukh Das v. Union Territory of Arunachal Pradesh, 1986 SCC (Crl.) 166. 12. Few of the decisions shedding light on the aspect under discussion may be noticed. The ex-cathedra decisions are Tyron Nazareth v. State of Goa, 1994 Supp (3) SCC 321, Khatri (II) v. State of Bihar, 1981 SCC (Crl.) 228 and Sukh Das v. Union Territory of Arunachal Pradesh, 1986 SCC (Crl.) 166. The aforesaid aspect of providing legal aid to the accused was also considered by the Apex Court in Tyron Nazareth (supra) emanating from a decision of Bombay High Court in which the Court noticed with approval the decision of the Apex Court in Sukh Das (supra) and also Khatri II’s case (supra). The Apex Court in the said decision held as under : “We have also perused the decisions of this Court in Khatrai (II) v. State of Bihar and Sukh Das v. Union Territory of Arunachal Pradesh. We find that the appellant was not assisted by any lawyer and perhaps he was not aware of the fact that the minimum sentence provided under the statute was 10 years rigorous imprisonment and a fine of Rs. 1 lakh. We are, therefore, of the opinion that in the circumstances, the matter should go back to the tribunal. The appellant if not represented by a lawyer may make a request to the Court to provide him with a lawyer under Section 304 of the Criminal Procedure Code or under any other legal aid scheme and the Court may 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 de novo trial is ordered hereby.” 13. The ex-cathedra decision on the point is Khatrai v. State of Bihar (supra) in which the Apex Court substantially held that free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused for the first time is produced before the Magistrate. The ex-cathedra decision on the point is Khatrai v. State of Bihar (supra) in which the Apex Court substantially held that free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused for the first time is produced before the Magistrate. The Apex Court also relied upon in this decision the decision of the Apex Court in Hussainara Khatoon’s case ( AIR 1979 SC 1369 ) in which the right to free legal services was held to be an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and also held implicit in the guarantee of Article 21 of the Constitution of India. The relevant paragraphs being 4 and 5 are quoted as under : “The right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it is implicit in the guarantee of Article 21. The State Government cannot avoid its constitutional obligation to provide free legal services to a poor accused by pleading financial or administrative inability. The State is under a constitutional mandate to provide free legal aid to an accused person who is unable to secure legal services on account indigence and whatever is necessary for this purpose has to be done by the State, AIR 1979 SC 1369 , Foll. (Para 4) Moreover, this constitutional obligation to provide free legal services to an indigent accused does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate. That is the stage at which an accused person needs competent legal advice and representation and no procedure can be said to be reasonable fair and just which denies legal advice and representation to him at this stage. (Para 4) The Magistrate or the Sessions Judge before whom the accused appears, is under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. Necessary directions to Magistrates, Sessions Judges and the State Government with guidelines given.” 14. Another decision on the point is Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401 . Necessary directions to Magistrates, Sessions Judges and the State Government with guidelines given.” 14. Another decision on the point is Suk Das v. Union Territory of Arunachal Pradesh, (1986) 2 SCC 401 . The aforesaid decision has carried the dictum of Khatri’s case (supra) a step further and it is clearly laid down that unless refused, failure to provide free legal aid to such accused person would vitiate their trial, entailing setting aside of the conviction and sentence against them. In para 5, the substance of what has been held is 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. Again the Apex Court held that the exercise of this fundamental right is not conditional upon the accused apply for free legal aid and hence cannot be denied if the accused failed to apply for it. Illiteracy, poverty and ignorance of rights and entitlements under the law abounds leading to deception, exploitation and deprivation of rights and benefits under the law. It would be a mockery of the legal aid programme if it were to be left to the poor, ignorant and illiterate accused to ask for free legal services. In the aforesaid case, the Apex Court set aside the conviction and sentence observing that the result of our quashing the conviction of the appellant would be that the appellant would have to be tried again in accordance with law after providing free legal assistance to him at State cost and that would mean that the appellant would continue to be exposed to the risk of conviction and imprisonment and the possibility cannot be ruled out that the offence charged may ultimately be proved against him and he might land up in jail..........”. However, in the peculiar facts and circumstances of that case, the Apex Court prohibited trial afresh and reinstated the appellant in service but without back wages. It would appear that offence for which the appellant was tried was under Section 506 read with Section 34 of the IPC on the allegation that the appellant and others threatened Asstt Engineer C.P.W.D with a view to compelling him to cancel the transfer orders which had been passed against him. 15. It would appear that offence for which the appellant was tried was under Section 506 read with Section 34 of the IPC on the allegation that the appellant and others threatened Asstt Engineer C.P.W.D with a view to compelling him to cancel the transfer orders which had been passed against him. 15. The crux that boils down from the discussion of the aforesaid decisions is that the Court is under a duty to ensure that accused person before it is represented or not and whether he requires the services of a lawyer from State through Legal Aid Scheme on account of his indigent conditions or otherwise and should take up the matter as prefatory to further proceeding in the trial. We have scanned the entire record and there is nothing on record that the trial Court ever addressed itself to this issue and after all the witnesses were examined in the case, he passed the orders appointing the lawyer that too pursuant to a request from the accused Harveer and played down the right of the accused by stating that all the witnesses were examined in the presence of the accused. In our considered view, the trial Court proceeded perfunctorily unmindful of the fact that the right of the accused was further impinged upon seriously when the trial Court rejected the request of the lawyer assigned to accused at a belated stage for recall of certain ocular witnesses for cross-examination. 16. In view of the above, the conviction and sentences recorded against the appellant are set aside and the matter is remanded to the trial Court for trial de novo. It needs hardly be said that the witnesses would be recalled and examined and cross-examined formally in the spirit of procedural justice. The trial Court, it is expected, would proceed expeditiously and take the matter to finality within a period not exceeding six months. ————