JUDGMENT Dev Darshan Sud, J. (Oral). The appellant has been convicted for offence punishable under Section 302 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and has been sentenced to undergo life imprisonment and to pay fine of Rs.50,000/-. In default of payment of fine, to undergo simple imprisonment for one year. 2. The case of the prosecution is that on 03.09.2005 deceased Suresh Kumar was at the shop of his brother and was returning home on his bicycle. When deceased Suresh Kumar reached Village Bahi, accused Kartar Singh beat him up. Pawan Kumar (PW-3) telephoned PW-2 Tara Chand brother of the deceased that Suresh Kumar is being assaulted by the accused. PW-2 Tara Chand went to the house of the accused where he confronted the father of the accused about the unruly behaviour of his son. He (father of the accused) told PW-2 Tara Chand, he could take whatever action, he likes, as his son is not in his control. PW-2 Tara Chand then proceeded towards Village Bahi where he met PW-3 Pawan Kumar on the way, who informed him that he had been informed that the accused was thrashing his brother. Both of them then proceeded to the scene of the incident where they met deceased Suresh Kumar, who told them he had been assaulted by the accused. When they were searching for the accused, he appeared all of a sudden and stabbed the deceased with a pair of scissors. The deceased collapsed on the spot. Tara Chand (PW-2) cried for help, Pawan Kumar (PW-3) managed a taxi and the deceased was taken to the hospital at Dehra where he was declared brought dead. Intimation was sent to the police. After recording rapatroznamcha; investigation followed. On the evidence of the witnesses, as recorded, the accused was found guilty, convicted and sentenced. 3. Before we advert to the other facts, one submission which is raised as preliminary point for decision before this Court was that the accused was unrepresented by counsel when examination in chief of the prosecution witnesses was conducted, which was in grave and flagrant violation of Article 21 of the Constitution of India as also Section 304 of the Criminal Procedure Code, 1973 (hereinafter referred to as ‘Cr.P.C.’). Learned counsel Sh. Shashi Shirshoo for the accused has taken us through the order sheet of the learned trial Court in support of his submission. 4. Learned counsel Sh. Shashi Shirshoo for the accused has taken us through the order sheet of the learned trial Court in support of his submission. 4. We find that the order sheet has not been properly written by the learned Judge as the orders do not find recording in seriatim. On 04.04.2007, the Court fixed the date of evidence for five prosecution witnesses to be recorded on 01.06.2007, 02.06.2007 for witnesses at Sr.No.6 to 10, 04.06.2007 for witnesses at Sr.No.11 to 14 and the rest on 05.06.2007. The next order which we find in seriatim is order dated 04.07.2007 stating that the accused had moved an application for legal assistance. The next order is dated 02.06.2007 in which the Court records that no counsel appears for the accused. The Court records since five prosecution witnesses are present in the Court, their examination-in-chief be conducted and cross-examination deferred, so that they may be cross-examined when counsel is engaged by the accused. The next date fixed for is 04.06.2007. From the record, we also find that on 07.03.2006 there is a communication from the office of the District and Sessions Judge, Kangra to the Additional District and Sessions Judge (1), Kangra referring to the communication dated 01.03.2006 stating that Shri Tarun Sharma, Advocate, has been appointed as defence counsel. On 01.06.2007, the appellant addresses an application for grant of legal aid which is again followed by another application dated 02.06.2007 complaining that two witnesses have been examined and no legal aid counsel has been assigned. The communication dated 05.06.2007 then states that District and Sessions Judge, Kangra, has assigned Shri Dheeraj Lagwal as legal-aid counsel for the appellant. Again, on 02.06.2007, the learned Presiding Officer writes to the District and Sessions Judge that a legal aid counsel be assigned as earlier counsel is not willing to appear for the appellant. This is a very unsatisfactory state of affairs, both for what the Judge records in the sequence of orders writing the order on 04.07.2007 before order of 02.06.2007. This cavalier approach can not but be condemned as inappropriate for a trained Judicial Officer to adopt. He should have realized that what he was dealing with was the life and liberty of a citizen, who was accused of a serious offence. The evidence of the witnesses in examination-in-chief was recorded on 01.06.2007, 02.06.2007, 04.06.2007, 05.06.2007 and 10.07.2007. This cavalier approach can not but be condemned as inappropriate for a trained Judicial Officer to adopt. He should have realized that what he was dealing with was the life and liberty of a citizen, who was accused of a serious offence. The evidence of the witnesses in examination-in-chief was recorded on 01.06.2007, 02.06.2007, 04.06.2007, 05.06.2007 and 10.07.2007. All these witnesses have been cross-examined after counsel was appointed for the accused. We then note the order sheet as recorded by the learned trial Court. 5. Taking into consideration the fact that no counsel was appearing for the accused, a reference was made to the learned Sessions Judge, Dharamshala, with the request that an Advocate be appointed and the case was fixed for recording evidence on 04.06.2007. On that date, four prosecution witnesses were examined, but there was no defence counsel. Cross-examination of these witnesses was deferred. The case was then put up on 05.06.2007 on which date the Court notes that there was no response to the reference made to the learned Sessions Judge for appointing counsel at State expense. Case was adjourned for 07.06.2007, when Shri Dheeraj Lagwal, Advocate, appeared for the accused, who was appointed as counsel at State expense. The case was then fixed for the evidence of the cross-examination of the witnesses on 13.06.2007 and 14.06.2007. On 13.06.2007, seven prosecution witnesses were cross-examined and on 14.07.2007 seven prosecution witnesses were cross-examined and the statement of one prosecution witness was recorded. 6. An application under Section 311 Cr.P.C. was moved by the prosecution for examination of one Rajesh Kumar. This witness was examined as PW-16 on 10.07.2007. He was offered for cross-examination, but no cross-examination was conducted. On 11.07.2007, an application under Section 311 Cr.P.C. was moved by the defence with pleadings which are general in nature. It pleads that the counsel appointed could not properly cross-examine PW-2 Tara Chand and PW-3 Pawan Kumar on the question of distance of the place of incident from their house. 7. Before we advert to this question, we will advert to the issue as to whether there has been violation of Article 21 of the Constitution of India and Section 304 of the Cr.P.C. We advert to the decision of the Madras High Court in Mannargan and another v. Emperor 1925 Madras 1153. 7. Before we advert to this question, we will advert to the issue as to whether there has been violation of Article 21 of the Constitution of India and Section 304 of the Cr.P.C. We advert to the decision of the Madras High Court in Mannargan and another v. Emperor 1925 Madras 1153. On the aspect of assistance of Legal Practitioner, the Court rules :- “……..It is a matter for surprise that a Magistrate of considerable experience like the Third Presidency Magistrate should have so far yielded to the influence of the police as to summon the counsel for the defence as a prosecution witness without giving due notice to the accused so that they might engage a competent counsel. The Crown Prosecutor urges that as the accused cross-examined the prosecution witnesses on 15th August 1924, they could not have been prejudiced by the action of the Magistrate. This argument overlooks the fact that the services of a counsel are very necessary when witnesses are examined-in-chief to check not only leading questions but to prevent irrelevant evidence being recorded.…..” (P.1154) 8. This principle finds reiteration in Kailash Nath Agarwal and another v. Emperor A.I.R. (34) 1947 Allahabad 436 :- “……..I have already said that I have not examined the evidence of the witnesses for I consider that it would be improper at this stage to go into the question whether the evidence was properly recorded, but, to my mind, the examination-in-chief and the manner in which the evidence is recorded are just as important, at times more so, as the cross-examination, and the learned Magistrate erred in deciding to record the examination-in-chief of the witnesses without giving an opportunity to the accused to get adequate legal assistance. See A.I.R. 1925 Madras….” (P.439) 9. In conclusion, we consider the judgment of the Madras High Court in Sudarsanam and others versus State 1988 (1) Crimes 228, holding :- “15. Learned Public Prosecutor contended that the proceedings of the learned Sessions Judge, in recording the Chief examination of P.Ws. 1 to 12 need not be quashed and that instead, the Chief Examination may be retained and an opportunity may be given to the petitioners to recall the above witnesses to cross-examine them. I am unable to accept the above suggestion of the learned Public Prosecutor. 1 to 12 need not be quashed and that instead, the Chief Examination may be retained and an opportunity may be given to the petitioners to recall the above witnesses to cross-examine them. I am unable to accept the above suggestion of the learned Public Prosecutor. The petitioners in their affidavit, alleged that the learned Public Prosecutor in the Sessions Court, elicited the Chief examination by putting leading questions on vital matters, when the witnesses were unwilling to answer. Whatever that be, we cannot lose sight of the fact that, the stage which is most important to an accused in the entire criminal proceedings, is the time, when the prosecution witnesses are actually in the box giving evidence. The evidence then recorded, is the substantive evidence, which would be relied upon by Courts for final adjudication. The charge in the instant case is no trivial one, but which, if proved, would be brought within the category of “rarest of rare cases” as being a murder committed for dowry calling for capital sentence, such a charge would be proved, invariably by oral evidence. Whatever arguments that could be addressed, whether before the trial court or before any other higher court, which might have occasion to deal with the case, whether at the instance of the prosecution or at the instance of the defence, or even at the instance of a private party, would have to be based upon the evidence that is recorded at the time when the witnesses are in the box. The presence of a counsel for the accused, at the stage of the chief-examination, in a case of this nature, could not be brushed aside as redundant. The counsel has to cross examine witnesses, not by going though the script of the Chief examinations recorded in his absence, but by seeing the witnesses actually deposing the chief. If under Section 280 Cr.P.C., the demeanour of a witness could be relevant to a trial Judge, who is empowered to make a record of it, so that even the appellate courts can have the benefit of the impression that the witness had produced on the trial Judge, certainly the demeanour of a witness, would give the cross-examining counsel, his clue regarding the truth or falsity of each portion of the evidence given by the witness in the chief-examination. The look or manner of a witness, his hesitation, his doubts, his apparent reluctance or evasive attitude, would all be meaningful to a counsel, who proposes to cross-examine a witness. It is no justice to record the chief-examination of twelve witnesses, in a case of capital sentence, when the accused are undefended and then tender the witnesses for cross examination. I have no hesitation to quash the entire proceedings. 16. Accordingly, the evidence of P.Ws. 1 to 12 recorded by the Sessions Judge, Chengalpattu in S.C. No.202 of 1986, is hereby quashed and the case is transferred to the file of the Sessions Judge, North Arcot at Vellore for disposal according to law.” (P.232 & 233) 10. We note that in Bashira v. State of U.P. AIR 1968 SC 1313 , the Supreme Court was interpreting the Rules and Orders of the Allahabad High Court with respect to examination of witnesses. After a detailed examination of the Rules, the Court held :- “(8) There is nothing on the record to show that, after his appointment as counsel for the appellant, Sri Shukla was given sufficient time to prepare the defence. The order-sheet maintained by the Judge seems 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. 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 Nageswara Rao, AIR 1957 Andh Pra 505 reference was made to Rule 228 of the Madras Criminal Rules of Practice which provided for engaging a pleader at the cost of the State to defend an accused person in a case where a sentence of death could be passed. It was held by Subba Rao, Chief Justice as he then was, speaking for the Bench, that : “a mere formal compliance with this Rule will not carry out the object underlying the rule. A sufficient time should be given to the advocate engaged on behalf of the accused to prepare his case and conduct it on behalf of his client. We are satisfied that the time given was insufficient and in the circumstances, no real opportunity was given to the accused to defend himself.” This view was expressed on the basis of the fact found that the advocate had been engaged for the accused two hours prior to the trial. In Mathai Thommen v. State, AIR 1959 Ker 241 , the Kerala High Court dealing with a Sessions trial in which the counsel was engaged to defend the accused on 2nd August, 1958, when the trial was posted to begin on 4th August, 1958, showing that barely more than a day was allowed to the counsel to get prepared and obtain instructions from the accused. Commenting on the procedure adopted by Sessions Court, the High Court finally expressed its opinion by saying : “Practices like this would reduce to a farce the engagement of counsel under R 21 of the Criminal Rules of Practice which has been made for the purpose of effectively carrying out the duty cast on courts of law to see that no one is deprived of life and liberty without a fair and reasonable opportunity being afforded to him to prove his innocence. We consider that in cases like this counsel should be engaged at least some 10 to 15 days before the trial and should also be furnished with copies of the records.” In our opinion, no hard and fast rule can be laid down as to the time which must elapse between the appointment of the counsel and the beginning of the trial; but, on the circumstances of each case, the Court of Session must ensure that the time granted to the counsel is sufficient to prepare for the defence. In the present case, when the counsel was appointed just before the trial started, it is clear that there was failure to comply with the requirements of the rule of procedure in this behalf.” (P.1317 &1318) 11. Mohd. Hussain alias Zulfikar Ali versus State (Government of NCT of Delhi) (2012) 2 SCC 584 is a comprehensive judgment on the question of fair trial as also speedy trial. We need not reproduce the entire judgment, but only its important aspects. This was a case under Section 302 of IPC which conviction was challenged on the ground that the petitioner is an illiterate foreign national and unable to engage a counsel to defend himself. He was tried, convicted and sentenced to death by the Additional Sessions Judge, Delhi without assigning a counsel for his defence. Conviction was confirmed by the High Court on a reference made by the trial Court. The charge against the accused was under Sections 302/307 IPC and Section 3 of the Explosive Substances Act, 1908. The Supreme Court on the facts noted that appellant was initially assisted by a counsel, but midway, he disappeared before the conclusion of the trial. From the records, the Court noted that the accused was not asked as to whether he is able to engage a counsel, and nobody appeared for the accused. The Court did not appoint any counsel to defend him. According to the record, 56 witnesses had been examined by the prosecution in support of its case. No opportunity has been granted to the accused to cross-examine them. Hon’ble H.L. Dattu, J. rules :- “24. The Court did not appoint any counsel to defend him. According to the record, 56 witnesses had been examined by the prosecution in support of its case. No opportunity has been granted to the accused to cross-examine them. Hon’ble H.L. Dattu, J. rules :- “24. In the present case, not only was the accused denied the assistance of a counsel during the trial but such designation of counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. The court ought to have seen to it that in the proceedings before the court, the accused was dealt with justly and fairly by keeping in view the cardinal principles that the accused of a crime is entitled to a counsel which may be necessary for his defence, as well as to facts as to law. The same yardstick may not be applicable in respect of economic offences or where offences are not punishable with substantive sentence of imprisonment but punishable with fine only. The fact that the right involved is of such a character that it cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all our judicial proceedings, the necessity of counsel was so vital and imperative that the failure of the trial court to make an effective appointment of a counsel was a denial of due process of law. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 CrPC. 25. After carefully going through the entire records of the trial court, I am convinced that the appellant-accused was not provided the assistance of a counsel in a substantial and meaningful sense. To hold and decide otherwise, would be simply to ignore actualities and also would be to ignore the fundamental postulates, already adverted to.” (P.614) 12. The Court relied upon the decision in Rafiq Ahmad v. State of U.P. (2011) 8 SCC 300 and reaffirmed that the accused has a right to (a) maintain silence (b) right to fair trial (c) presumption of innocence (d) prosecution must prove its case beyond reasonable doubt. The Court relied upon the decision in Rafiq Ahmad v. State of U.P. (2011) 8 SCC 300 and reaffirmed that the accused has a right to (a) maintain silence (b) right to fair trial (c) presumption of innocence (d) prosecution must prove its case beyond reasonable doubt. The appeal was allowed and the case remanded for re-trial by Hon’ble H.L. Dattu, J. The second opinion of Hon’ble C.K. Prasad, J, after consideration of the case law holds :- “59. Accordingly, I am of the opinion that the conviction and sentence of the appellant is vitiated, not on merit but on the ground that his trial was not fair and just.” (P.623) But on the question as to whether the re-trial should be ordered denovo, the matter was referred to place before Hon’ble the Chief Justice for constituting an appropriate Bench. 13. On the question of prejudice as urged by the learned Additional Advocate General, the Supreme Court in Willie (William) Slaney v. State of Madhya Pradesh AIR 1956 SC 116 , holds :- “(44) ………..Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt. The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt. But when all is said and done what we are concerned to see is whether the accused had a fair trial, whether he knew what he was being tried for whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself. If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one.” (P.128) 14. The question, at this stage, would be either to set aside the conviction of the accused or to remand the case for fresh trial. In view of what has been stated in Mohd. Hussain (supra), which matter was referred to the Chief Justice. We do not find it possible to do so in the present case. 15. We will now proceed to evaluate the evidence brought on record by the prosecution to see if grave prejudice has been caused to the accused. In view of what has been stated in Mohd. Hussain (supra), which matter was referred to the Chief Justice. We do not find it possible to do so in the present case. 15. We will now proceed to evaluate the evidence brought on record by the prosecution to see if grave prejudice has been caused to the accused. We do realize that speedy trial though a component of fair trial, cannot be allowed to overshadow, trample and obliterate guaranteed right under Article 21 of the Constitution of India and statutory rights namely, Sections 273 and 304 which guarantees fair chance to the accused to be defended by a counsel of his choice, unless the process of law is being abused in the garb of demanding and enforcing the Constitutional or Statutory right of fair trial. 16. When we consider the evidence in the case, we will have to evaluate it for the consistency in the statements of the witnesses with corroboration of facts and also as to whether the appellant’s Constitutional right has been violated for want of effective cross-examination. 17. Now we advert to the evidence. PW-1 doctor Suman Dhiman, who conducted the post mortem of the deceased and proved post mortem report Ex.PW1/D. The findings of the report are as under :- “I-EXTERNAL APPEARANCE: Body of an average built male. Length 5’ 8”, wearing pink shirt, white vest, black trouser, yellowish underwear and brown shoes. Rigor morts was present. There was an incised wound 2 CM in length and 1 CM in width in its middle part (spindle shaped) present on the right side of upper part of abdomen 6 CM above and 4 CM away from mid line. Yellowish material protruding out from the wound. Surgical emphysema was present. No mark of ligature was seen around neck. II-CRANIUM AND SPINAL CORD: Normal. III-THORAX: 1. Walls, ribs and cartilages : Normal. 2. Pleurae : Normal. 3. Larynx and trachea : Normal. 4. Right lung : Normal. 5. Left lung: Normal. 6. Pericardium Heart Large Vessel : Normal. IV-ABDOMEN: 1. Walls, Peritoneum, 3. Mouth, Harynx and Oesophagus: Spindle shaped incised wound 2 CM X 1 CM was present on the right side of upper part of abdomen 6 CM above and 4 CM away from midline (already described). On opening the cavity there was collection of blood in the subcutaneous tissue underneath. Pericardium Heart Large Vessel : Normal. IV-ABDOMEN: 1. Walls, Peritoneum, 3. Mouth, Harynx and Oesophagus: Spindle shaped incised wound 2 CM X 1 CM was present on the right side of upper part of abdomen 6 CM above and 4 CM away from midline (already described). On opening the cavity there was collection of blood in the subcutaneous tissue underneath. The injury described above was occupying 12 CM diameter space. The Peritoneal cavity was full of blood and about 2 litres of blood was removed before the intraabdominal organs could be examined. Mouth Harynx and Oesophagus were normal. Stomach and its contents : Were normal with little amount of liquid material. Small intestines and their contents. : Showed perforations at multiple sites. Large intestines and their contents. : Also showed perforations in the transverse colon on right side. Ficcal matter was present. Liver : Normal. Spleen : Normal. Kidney : There was also collection of blood in the retro peritoneal area around right kidney. Kidney as such was normal. IVC was also perforated. Organs of generation : Were normal external and internal V-MUSCLES, BONES AND JOINTS: Normal. VI- OPINION OF THE MEDICAL OFFICER: In my opinion the deceased died due to excessive haemorrhage leading to hypovolumia and cardio respiratory arrest. However final opinion was to be given after the receipt of report of Chemical Examiner. Today, I have gone through the FSL report from the court file and in my opinion cause of death has been certified to be the same which I had given earlier. Probable time between injury and death was within six hours. Probable time between death and post mortem was 12 to 24 hours.” In his cross-examination, he denied the suggestion that the injury was not possible by scissors Ex.P7. 18. The second witness PW-2 Tara Chand, brother of the deceased, states that the deceased had passed plus two examination and was studying in Ludhiana to be an Electrician. The deceased was sitting in his shop on the day of occurrence. The deceased left the shop and took small pieces of wood in a gunny bag on his bicycle. At around 7.00 P.M., he received a telephonic call on the STD at his shop and was informed that one Kartar is quarrelling with his brother and beating him up. He should come and intervene in the dispute. The deceased left the shop and took small pieces of wood in a gunny bag on his bicycle. At around 7.00 P.M., he received a telephonic call on the STD at his shop and was informed that one Kartar is quarrelling with his brother and beating him up. He should come and intervene in the dispute. He closed his shop and went to the house of the accused which was at some distance from his shop. He asked the parents of the accused to accompany him telling them that his brother was being beaten up by the accused, when the father of the accused told him that he could search for the accused, who was not at home. This witness then met PW-3 Pawan under a mango tree on the roadside and told him that deceased was being beaten up by the accused. Both of them, then went towards Village Bahi where deceased met them at some distance and told them that he had been beaten up by the accused. The accused met them at a distance of 10-15 metres away from the shop where PW-2 Tara Chand and Pawan Kumar had purchased some goods. The accused stabbed with a pair of scissors in the stomach as a result the deceased fell down and was bleeding. This incident occurred at around 7.45 P.M. The accused ran away from the spot. At this, this witness started crying for help and asked Pawan (PW-3) to arrange for transportation. PW-2 Tara Chand put Suresh on his lap. Accused ran away saying that this is the consequence of being a witness in a case against him. He states that earlier on 01.09.2005 when he was returning home after closing his shop, he had seen nephew of the accused beating up one Pandit Ramesh Kumar whom he had rescued. On 02.09.2005, the police had enquired from him about this assault and that is why the accused was harbouring a grudge against him. 19. Learned counsel for the accused submits that the weapon of offence has not been properly identified and PW-1 Dr. Suman Dhiman as also PW-16 Rajesh Kumar do not corroborate this fact as also contradicts the inquest report. 20. We have given our careful and anxious consideration to the evidence of the case on record. 19. Learned counsel for the accused submits that the weapon of offence has not been properly identified and PW-1 Dr. Suman Dhiman as also PW-16 Rajesh Kumar do not corroborate this fact as also contradicts the inquest report. 20. We have given our careful and anxious consideration to the evidence of the case on record. Before proceeding further, we deprecate the approach adopted by the trial Court in proceeding with the trial in the manner in which it has done. The term ‘Fast Track Court’ does not mean that the rights of the accused can be trampled under the guise of speedy trial. What prevented the Court from granting an adjournment, more especially, when the accused requested that he needed assistance of a counsel to defend and it was his constitutional and statutory right? Again, what prevented the Court from making a reference to the Sessions Judge for permission to appoint an amicus curiae? We find that the right of the accused is not only limited to being defended by a counsel, but by an experienced counsel. The rights of the accused could not have been eliminated by the Fast Track Court merely because of the designation of this Court as such. 21. We note the principles settled by the Supreme Court in Ranchod Mathur Wasawa versus State of Gujarat AIR 1974 SC 1143 . The Court held :- “A petition from jail- this is one- demands closer judicial care and we have with deep concern scanned the materials placed before us in the light of the grounds of grievance urged in this appeal. We find no reason to disagree with the findings of guilt and refuse special leave. Even so, we are disturbed, having a look at the proceedings in this case, that the Sessions Judges do not view with sufficient seriousness the need to appoint State Counsel for undefended accused in grave cases. Indigence should never be a ground for denying fair trial or equal justice. Therefore, particular attention should be paid to appoint competent advocates, 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, so that the advocate chosen may serve the cause of justice with all the ability at his command. Therefore, particular attention should be paid to appoint competent advocates, 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, so that the advocate chosen may serve the cause of justice with all the ability at his command. In the present case, the accused has made a grievance that the amicus curiae came into the picture only on the day the trial commenced. This is an unfortunate feature. Nevertheless, we are satisfied that by postponing the examination of the important witnesses to the next day the learned Judge helped counsel to equip himself fully. We are also satisfied from a perusal of the papers that the cross-examination has not suffered for want of time or facility for counsel for the accused. We would, however, emphasize that in all these cases there should be a sensitive approach made by the court to see that the accused felt confident that his counsel chosen by the court has had adequate time and material to defend him properly. With these observations, we dismiss the petition.” (P.1143-44) 22. In Kishore Chand versus State of Himachal Pradesh AIR 1990 SC 2140 , the Court held :- “13. Though Art. 39-A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practicing in the Court concerned, volunteer to defend such indigent accused as a pat of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency.” (P.2147) 23. We are not pronouncing on the principle as to whether the absence of the counsel at the time of examination-in-chief per se violates the right to fair trial and vitiates the entire trial. We leave this open to be decided in an appropriate case, but nonetheless condemn the manner in which the trial has been conducted. We are not pronouncing on the principle as to whether the absence of the counsel at the time of examination-in-chief per se violates the right to fair trial and vitiates the entire trial. We leave this open to be decided in an appropriate case, but nonetheless condemn the manner in which the trial has been conducted. On the question as to whether the trial requires to be set-aside and the case should be remanded back for fresh trial, it is the question of prejudice which we have to consider. We find from the evidence on the record that there is nothing to show such prejudice, rather the witnesses have been cross-examined effectively. Had we discerned any prejudice emanating from improper cross-examination because of non-representation by counsel, we would have not hesitated in setting aside the entire trial to remand the case back afresh for trial. 24. We find that the fight has occurred all of a sudden without any pre-meditation and only for the reason that PW-2 Tara Chand at one point of time had witnessed the nephew of the accused while beating up one Pandit Ramesh for which he had grudge. It was not a pre-planned matter. In these circumstances, the only question remains to be considered is that the appellant should be convicted under Section 302 IPC or 304 Part-II IPC. 25. Having given considerable thought, we advert to the judgment of the Supreme Court in Salim Sahab versus State of M.P. (2007) 1 SCC 699 . The Court holds as under :- “12. In Dalip Singh v. State of Punjab, AIR 1953 SC 364 it has been laid down as under: ( AIR p.366, para 26) “26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.” The above decision has since been followed in Guli Chand v. State of Rajasthan (1974) 3 SCC 698 in which Vadivelu Thevar v. State of Madras AIR 1957 SC 614 was also relied upon. 13. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh Case1 in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed: (AIR p. 366 para 25) “25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in – ‘Rameshwar v. State of Rajasthan AIR 1952 SC 54 , AIR at p. 59. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.” 14. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel.” 14. Again in Masalti v. State of U.P. AIR 1965 SC 202 this Court observed: (AIR pp. 209-10 para 14) “But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses….. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.” 15. To the same effect are the decisions in State of Punjab v. Jagir Singh (1974) 3 SCC 277 , Lehna v. State of Haryana (2002) 3 SCC 76 and Gangadhar Behera v. State of Orissa (2002) 8 SCC 381 . In the present case apart from the evidence of PW 1, the evidence of PW 5, who has no axe to grind, is there. So, the plea regarding interested witnesses is without substance. 16. “17. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution (sic provocation) not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men’s sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A ‘sudden fight’ implies mutual provocation and blows on each side. A ‘sudden fight’ implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. 18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4, all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair advantage’. 19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. 19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan (1993) 4 SCC 238 it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that by using the blows with the knowledge that they were likely to cause death he had taken undue advantage.” The above position was highlighted in Babulal Bhagwan Khandare v. State of Maharashtra (2005) 10 SCC 404 (SCC pp. 410-11, paras 17-19). 17. The factual scenario shows that during a quarrel between the deceased and the accused, they were grappling and during that quarrel, the accused attacked the deceased with a pair of scissors. It was not a very big-sized weapon though it was certainly having a sharp-edged point.” (P.702 to 704) 26. We find that this case law cited supra squarely covers this case. We, therefore, direct that the appellant be convicted under Section 304 Part II of IPC. We sentence him to imprisonment already undergone. We accordingly modify the sentence as imposed by the learned Court below. We direct that the accused-appellant be released from custody forthwith in case he is not wanted in any other case.