JUDGMENT : A.B. CHAUDHARI, J. Heard the learned counsel for the rival parties. 2. Admit. 3. The record and proceedings are received in Appeal No. 380/2006 which is already admitted. Looking to the reasons given in the order made yesterday, we made prima facie opinion about the case and, therefore, asked Shri Mirza, the learned APP, to find out that whether there is really any evidence against both appellants in these appeals. 4. The appellant-Rama Narayan Jogdand in Criminal Appeal No. 380/2006 is already on bail. Thus, these appeals were ordered to be posted today for final disposal, in view of our prima facie opinion and old pendency of appeal by Rama and incarnation of Savitribai since 2003. 5. Today, both the appeals are on Board along with record and proceedings. Mr. Mirza, the learned APP is well prepared with the case. 6. We have, therefore, decided to take up both the appeals for final disposal. 7. Both these appeals are, therefore, being disposed of, by this common judgment and order. 8. Briefly stated, the case of the prosecution is that, some Villagers of village Palshi had seen a dead body of newly born child baby boy in the basin of river Painganga, which was obviously abandoned and, therefore, the Police Patil of village Palshi reported the matter on 11-9-2003 and reports (Ex.35 and Ex. 36) were registered in Crime No. 39/2003 with the Police Station, Pophali. A.S.I. Rasool went to the river. He made spot panchanama, inquest panchanama of dead body. He collected post-mortem Report (Ex.39), recorded the statements and arrested the accused nos. 1 and 2 i.e. appellants Rama and her mother Savitribai on 13-9-2003. Thereafter, all the formalities and the investigation were completed. Charge-sheet was filed before the JMFC, Umarkhed and then the accused were tried by the learned Sessions Judge at Pusad, after committal. 9. After trial, the learned Sessions Judge, Pusad, convicted both the accused Rama and Savitribai holding them guilty of the offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced them to suffer imprisonment for life and to pay fine of Rupees Five hundred and in default to suffer rigorous imprisonment for one month. But, the learned Sessions Judge acquitted them for the offence punishable under section 318 read with section 34 of the Indian Penal Code, by judgment and order dated 17-1-2006. Hence, this appeal. But, the learned Sessions Judge acquitted them for the offence punishable under section 318 read with section 34 of the Indian Penal Code, by judgment and order dated 17-1-2006. Hence, this appeal. 10. We have heard the learned counsel for the rival parties. 11. We are aghast at the manner in which Miss Rama and Savitribai have been treated by the State, the trial Judges, the defence counsel and the prosecutor; so also the NGO - Varhad Sanstha. Even, a perusal of the charge-sheet would show that except for the delivery of the child by Miss Rama in hospital and finding of dead body of a baby boy in the stream or bed of the river Painganga, no evidence was at all collected by the prosecution. Even DNA test was not conducted in order to find out the nexus of the abandoned child found in the bed of river with Miss Rama. 12. We are faced with a mind-boggling situation and we are at dismay to find that despite various Supreme Court judgments and the provisions contained in section 437 of the Code of Criminal Procedure, after filing of the charge-sheet in the Court of Magistrate i.e. JMFC, Umarkhed, no order for release on bail of these women was made. Section 437 of the Code of Criminal Procedure has been interpreted by the Apex Court time and again that is the provision specially meant for woman old; and infirm persons. Thus, the Trial Judge/Magistrate, Umarkhed, was the first person, who made a default in performing his duty in not resorting to the provision of section 437 of the Code of Criminal Procedure and release these women on personal bond or surety. These women, thus continued to be in Magisterial Custody from 13-9-2003 and thereafter were tried by the learned Sessions Judge till the judgment was delivered on 17-1-2006 i.e. for a period of three years. After the trial was committed to the Sessions Court, the Sessions Judge was under a duty to find out whether there was any semblance of the evidence against these women in order to continue them in the custody i.e. in jail. After the trial was committed to the Sessions Court, the Sessions Judge was under a duty to find out whether there was any semblance of the evidence against these women in order to continue them in the custody i.e. in jail. It was equally duty of the learned Public Prosecutor before the Sessions Judge so also the counsel of defence-accused, immediately after committal of the case to the Sessions Judge to invoke section 437 of the Code of Criminal Procedure in respect of these two women, but nothing happened. None thought it fit to apply their mind whether their incarnation was necessary. The trial Court then convicted these two women though there was no evidence at all. We are reminded of the celebrated judgment of the Apex Court authored by a great human rights crusader Justice P.N. Bhagwati in the case of Hussainara Khatoon and others vs. Home Secretary, State of Bihar reported in AIR 1979 SC 1377 and particularly the following portion from paragraph No. 3 :- "3. It is apparent from these charts that some of the petitioners and other undertrial prisoners referred to in these charts have been produced numerous times before the Magistrates and the Magistrates have been continually making orders of remand to judicial custody. It is difficult to believe that on each of the countless occasions on which these undertrial prisoners were produced before the Magistrates and the Magistrates made orders of remand, they must have applied their mind to the necessity of remanding those undertrial prisoners to judicial custody. We are also very doubtful whether on the expiry of 90 days or 60 days, as the case may be, from the date of arrest, the attention of the undertrial prisoners was drawn to the fact that they were entitled to be released on bail under proviso (a) of sub-section (2) of section 167. When an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail. When an undertrial prisoner is produced before a Magistrate and he has been in detention for 90 days or 60 days, as the case may, the Magistrate must, before making an order of further remand to judicial custody, point out to the undertrial prisoner that he is entitled to be released on bail. The State Government must also provide at its own cost a lawyer to the undertrial prisoner with a view to enable him to apply for bail in exercise of his right under proviso (a) to sub-section (2) of section 167 and the Magistrate must take care to see that the right of the undertrial prisoner to the assistance of a lawyer provided at State cost is secured to him and he must deal with the application for bail in accordance with the guidelines laid down by us in our Order dated 12th February, 1979. We hope and trust that every Magistrate in the country and every State Government will act in accordance with this mandate of the Court. This is the constitutional obligation of the State Government and the Magistrate and we have no doubt that if this is strictly carried out, there will be considerable improvement in the situation in regard to undertrial prisoners and there will be proper observance of the rule of law". We think the Courts below altogether forgot the above valuable piece of advise. 13. Shri Mirza, learned APP, reports that Rama was released on bail on 22-11-2006. Miss Rama had preferred an appeal against the conviction in the year 2006. But it is not known as to why no appeal was preferred by Savitribai effectively. Perhaps, she remained quiet because she had already sent request for filing appeal to Varhad Sanstha and if these facts are correct, then Varhad Sanstha is required to be blamed. 14. In Criminal Appeal No. 380/2006 Varhad Sanstha had appointed counsel for Rama and we think that the counsel for Rama ought to have realised that there was other accused namely Savitribai, her mother along with Rama, who was also convicted and was in jail. But then the counsel for Rama again failed to oblige Savitribai by taking such steps which were easily possible for getting her appeal filed and bail as he did in the case of Ms. Rama. Thus, Savitribai is destined to excruciating wait for justice and liberty. 15. But then the counsel for Rama again failed to oblige Savitribai by taking such steps which were easily possible for getting her appeal filed and bail as he did in the case of Ms. Rama. Thus, Savitribai is destined to excruciating wait for justice and liberty. 15. Be that as it may, we have heard the learned counsel for the rival parties. We have first seen the reasons given by the learned trial Judge for recording the conviction of the appellants in both these appeals and to say least, we are taken aback at the reasons given by the learned trial Judge. Instead of repeating the reasons given by him, we prefer to quote paragraph nos. 9, 11 and 12 from his judgment, which read thus :- "9. In the present case accused No. 1 met with the case similar to Kunti in Mahabharata since both of them had a son out of wedlock. Kunti succeeded in abandonment of Karna in the river who then survived by charioteer. Here in the case at hand accused No. 1 succeeded in abandoning newly born baby but later on her act came to broad light. I am sure that discussion made hereinafter will clear the entire picture. It is admitted fact that accused No. 1 is unmarried daughter of accused No. 2 and evidence led by PW 1, 5 and 6 is crystal clear to the effect that former had delivered a baby born in cottage Hospital Umarkhed on 8-9-2003, but left the hospital in the morning of 9-9-2003 without informing the staff on duty. I with the help of evidence of PW 1, 5 and 6 of the firm opinion that that accused No. 1 had delivered a baby boy in the cottage hospital Umarkhed. Hostility on the part of PW 2 and 3 by no way will have any impact on prosecution case. This shows that there is disappearance of child with a day or two w.e.f. Birth. Of Course there is no report given either by accused No. 1 and 2 that somebody had swapping and hence they must know where about and fate of that baby. As of rule there cannot be inception unless and until there is physical sexual union of two sex. It does not mean whether or not there is direct evidence to the said point. As of rule there cannot be inception unless and until there is physical sexual union of two sex. It does not mean whether or not there is direct evidence to the said point. This shows that prosecution case by all means rested upon circumstantial evidence and the very chain of evidence right from pregnancy of accused No. 1 till dead body of a baby boy is noticed in basin of river is proved by the prosecution beyond shadow of doubt. PW 1, 5 and 6 are none else but staff of govt. hospital Umarkhed and they had no reason to depose false and cook false evidence either oral or documentary against accused. There is a reason to say that accused No. 1 having consulted accused No. 2 has definitely killed the baby, left it to unclaimed condition in order to save both of them from society, but result of it will be one and the same. 11. Now, let us see how the prosecution has established the chain of evidence. (1) The oral as well as documentary evidence (Ex.42, 48, 50, 51 -54) collected from the Cottage Hospital Umarkhed speaks that accused No. 1 got admitted there on 8.9.03 and delivered a male baby on the same day, and accused No. 1 who was accompanied by accused No. 2 left the hospital next day morning without informing the staff on duty. (2) Spot and inquest panchanama (Exh. 37 and 38) are clear to the effect that a dead body of newly born male baby seen there in the basin of river Painganga (which is at close distance from native of accused) with superficial bite injuries. (3) PM notes Exh.39 has referred cause of death of the baby due to drowning in water. (4) Accused No. 1 came to be arrested on 11-9-2003 and next day morning she was produced before PW 6 LMO who opined and certified that accused No. 1 is the lady who just delivered a male baby in cottage hospital Umarkhed. 12. This shows chain of circumstantial evidence is completed by prosecution by all means. The baby will not reach to basin of river unless it is thrown by somebody. In this case they were the accused No. 1 and 2 who had custody of the baby. 12. This shows chain of circumstantial evidence is completed by prosecution by all means. The baby will not reach to basin of river unless it is thrown by somebody. In this case they were the accused No. 1 and 2 who had custody of the baby. I have already referred that they did not come forward with the case of swapping nor it is their case that the baby died due to medical reason. The facts so developed on record have lamented that they are the accused No. 1 and 2 who committed murder of the baby and therefore will have to face sentence to that effect." 16. These reasons are difficult for us to ram down the throat. The only circumstances relied by the learned trial Judge for recording the conviction for a serious charge of murder are that, Rama had delivered a baby child in Cottage hospital, Umarkhed, on 8-9-2003 and in the morning of 9-9-2003, she left the hospital without informing the staff on duty and thus it was proved that Rama had delivered baby boy. The next circumstance is that, the dead body of the baby boy was found in the basin of river Painganga and was noticed by the villagers and, therefore, Rama in consultation with her mother Savitribai definitely must have killed the baby and left in unclaimed condition in order to save both of them from the society. The dead body was found with superficial bite injury in the bed of river. Accused No. 1-Rama came to be arrested on 11-9-2003 and after her arrest, PW 6- Medical Officer opined that she had delivered a male child and that in P.M. notes referred the cause of death due to drowning in water. These were circumstances quoted by the learned Judge as above for recording the conviction for serious offence of murder of a newly born child. No person of ordinary prudence would even think of convicting these women for the charge of murder and shackle the liberty of these two women for number of years. Except the above so-called circumstances, we do not find any evidence to hold both Rama and Savitribai guilty of any offence, much less that of murder of the child. No person of ordinary prudence would even think of convicting these women for the charge of murder and shackle the liberty of these two women for number of years. Except the above so-called circumstances, we do not find any evidence to hold both Rama and Savitribai guilty of any offence, much less that of murder of the child. In the absence of any evidence on record against any of these women, we are of the firm opinion that both these appeals must be allowed and the judgment of conviction and sentence must be quashed and set aside. 17. Having thus disposed of the appeals, we think, we should make suggestions. We now must remind all the concerned about further observations/advice by the Apex Court in the decision in the case of Hussainara Khatoon vs. Home Secretary (supra) and particularly the following portion from paragraph 6, which read thus :- "6. We may point out that according to the law as laid down by us in our judgment dated 9th March, 1979, it is the constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation, to have free legal services provided to him by the State and the State is under a constitutional mandate to provide a lawyer to such accused person if the needs of justice so require. We do not know whether the State Government has set up any machinery for the purpose of providing free legal services to persons who are accused of offences involving possible deprivation of liberty and who are unable to engage a lawyer on account of poverty or indigence. The constitutional obligation cannot wait any longer for its fulfillment, since more than 30 years have passed from the date of enactment of the Constitution and no State Government can possibly have any alibi for not carrying out this command of the Constitution. We are repeating this observation once again in the present judgment because we find that barring a few, many of the State Governments do not seem to be alive to their constitutional responsibility in the matter of provision of free legal services in the field of administration of criminal justice. Let it not be forgotten that if law is not only to speak justice but also deliver justice, legal aid is an absolute imperative. Let it not be forgotten that if law is not only to speak justice but also deliver justice, legal aid is an absolute imperative. Legal aid is really nothing else but equal justice in action. Legal aid is in fact the delivery system of social justice. It is intended to reach justice to the common man who, as the poet sang : "Bowed by the weight of centuries he leans Upon his hoe and gazes on the ground, The emptiness of ages on his face, And on his back the burden of the World." We hope and trust that every State Government will take prompt steps to carry out its constitutional obligation to provide free legal services to every accused person who is in peril of losing his liberty and who is unable to defend himself through a lawyer by reason of his poverty or indigence in cases where the needs of justice so require. If free legal services are not provided to such an accused, the trial itself may run the risk of being vitiated as contravening Article 21 and we have no doubt that every State Government would try to avoid such a possibility eventuality." From the facts mentioned in the judgment, we have come to a conclusion that the person like appellant-Savitribai due to illiteracy, physical and mental health, poverty and confinement in jail did not have even a reasoned thought of filing of appeal as contemplated by section 383 of the Criminal Procedure Code nor had she facility of knowing whether the appeal on her behalf was actually filed and if filed what was the status of the appeal. We think, though the Criminal Procedure Code provides for the prisoner for sending the petition for appeal as contemplated by section 383 of the Code of Criminal Procedure, looking to the physical, mental or other illness or disability or inability of the prisoners like Savitribai, a solution based system should be devised by the Legal Aid committee of the State to regularly supervise whether the convicts-prisoners have preferred appeal or not and if not, why not. Such a investigation is necessary by the Legal Aid Committee since the mindset of such convicts after being lodged in the jail may not remain normal. The Legal Aid Committee over the last decade has become financially strong with the assistance from the Government. Such a investigation is necessary by the Legal Aid Committee since the mindset of such convicts after being lodged in the jail may not remain normal. The Legal Aid Committee over the last decade has become financially strong with the assistance from the Government. We think it must attend to prisoners like Savitribai and help them getting justice. The unfortunate woman, Savitribai who did not prefer any appeal or did not have any legal aid till 2015 has languished in jail from 2003 till this date in a criminal case having absolutely 'no evidence' against her and when she could have been at liberty in 2003 itself. She has, however, suffered twelve long years imprisonment. 18. We then find that whosoever is at fault, as discussed by us above, the State being parens patriae must come forward and make payment of compensation, obviously from the tax payers' money. Both these women cannot be left high and dry for fault of one and all including the lower judiciary. We can only imagine the state of health and particularly, mental health of Savitribai in jail who could not have at all been convicted for the offence of murder under section 302 of the Indian Penal Code for want of any evidence much less legal. We are of the firm opinion that these women should be compensated by the State by making payment in the sum of Rupees 1,50,000/- each by asking them to open bank account in a Nationalised Bank and deposit the amount in the bank account on or before 15th April, 2015 and make a compliance report to this Court. We, therefore, make the following order :- Order (i) Criminal Appeal No. 380/2006 and Criminal Appeal No. 88/2015 both are allowed. (ii) The impugned judgment and order dated 17-1-2006 in Sessions Trial No. 12/2004 convicting the appellants Rama daughter of Narayan Jogdand and Savitribai w/o Narayan Jogdand for offence punishable under section 302 read with section 34 of the Indian Penal Code is quashed and set aside and both the appellants - Rama daughter of Narayan Jogdand and Savitribai w/o Narayan Jogdand are held not guilty of offence of murder under section 302 read with section 34 of the Indian Penal Code. (iii) Both the appellants Rama daughter of Narayan Jogdand and Savitribai w/o Narayan Jogdand in these appeals are acquitted for the charge of murder under section 302 read with section 34 of the Indian Penal Code. (iv) Appellant Savitribai w/o Narayan Jogdand be released forthwith unless required in any other crime. Bail Bonds of Rama daughter of Narayan Jogdand stands cancelled. (v) The Legal Aid Committee of State of Maharashtra shall prepare a Policy in the subject matter and submit the report about such proposed policy to this Court within four weeks from today. (vi) The State of Maharashtra in Home Department shall make payment of compensation in the sum of Rupees 1,50,000/- each to Rama daughter of Narayan Jogdand and Savitribai w/o Narayan Jogdand on or before 15th April, 2015 by getting the Nationalised Bank account opened in their respective names through its machinery. (vii) The Respondent-State to report compliance to this Court about the payment of compensation on or before 30th April, 2015. (viii) The Superintendent of Police, Yavatmal, to take follow up the action for getting the order of compensation implemented. (ix) Place the matter before the Court thereafter on 5th of May, 2015 before the Division Bench for further consideration. (x) Fees payable to the appointed counsel - Shri R.M. Daruwala are quantified at Rupees 5000/-.