JUDGMENT : This is an appeal filed by the accused questioning the legality and correctness of the judgment of conviction and sentence dated 6.07.2017 passed by the learned I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi, in Sessions Case No.69 of 2016 wherein the accused is convicted for the of fences punishable under Section 498A and 306 of the Indian Penal Code (hereinafter referred to as the ‘IPC’ for brevity) and sentenced to undergo imprisonment for three years and to pay fine of Rs.10,000/- in default to undergo imprisonment for 1 year for the of fence under Section 498A of IPC and to undergo imprisonment for a period of ten years and to pay fine of Rs.10,000/- in default to undergo imprisonment for 1 year for the of fence punishable under Section 306 IPC. 2. The learned counsel for the appellant submitted that none of the witnesses examined by the prosecution were cross-examined by the accused. No sufficient opportunity has been provided to the accused. Counsel for the accused has sought to retire from the case. Therefore, he did not appear in the proceedings. The trial Court has not appointed any standing counsel to defend the accused. Therefore, sufficient opportunity has not been granted to the accused to defend himself. Hence, learned counsel has prayed to set aside the impugned judgment of conviction and sentence and to remand the matter back to the trial Court for fresh disposal by providing an opportunity for the accused to defend himself. 3. Learned High Court Government Pleader submitted that there is sufficient evidence on record to prove the guilt of the accused beyond al l reasonable doubt. The accused was not diligent in cross-examining the prosecution witnesses. Therefore, there are no grounds to disbelieve the evidence of the prosecution witnesses. Hence, learned Government Pleader prayed to dismiss the appeal. 4. On the basis of the above said contentions, the points that arise for consideration in this appeal is as to: 1. Whether the appellant was given an opportunity to defend himself on the charges leveled against him? 2. Whether it is a f it case to remand the matter back to the trial Court for fresh disposal in accordance with law? 5. Briefly stated the facts are that the accused and the deceased were married 23 years prior to the date of the incident. The accused was addicted to drinking habit. 2. Whether it is a f it case to remand the matter back to the trial Court for fresh disposal in accordance with law? 5. Briefly stated the facts are that the accused and the deceased were married 23 years prior to the date of the incident. The accused was addicted to drinking habit. He used to consume liquor and in drunken state of mind, he used to give cruelty to his wife. The cruelty was given in order to force her to bring money to meet his badvices. In spite of advice by the elders, he did not stop to ill-treat her. On the fateful day on 08.04.2016 at about 11.45 pm, the complainant received a phone cal l stating that the accused has set his wife on fire. When he came to the village of the accused around 4.00 am on the next day, he found the dead body of his sister lying near the door. The body was completely burnt. He also came to know that the accused had poured kerosene and set his wife on f ire. Thereafter, a complaint came to be filed before the jurisdictional police on 09.04.2016 before the PSI, Banahatti Police Station. The same was registered in PS Crime No.51 of 2016. On 02.05.2016, the accused was arrested and produced before JMFC Court, Banahatti. The accused was remanded to judicial custody. On investigation, it is found that the accused is said to have committed the aforesaid offence and hence, charge sheet was f i led before the JMFC Court, Banahatti, on 05.08.2016. On the same day, cognizance of the offence was taken by the Court. A criminal case was registered against the accused. The learned JMFC, Banahatti, passed an order and commited the case to the Sessions Court, Bagalkot for trail. The learned Sessions Judge secured the presence of the accused. After hearing both sides, charge was framed for the offences punishable under Section 498A and 306 of IPC. Based on the, unchallenged, testimony of the prosecution witnesses, the learned Sessions Judge held the accused guilty of the offences leveled against him. Accordingly, convicted the accused for the offences as stated supra. 6. After hearing both sides, charge was framed for the offences punishable under Section 498A and 306 of IPC. Based on the, unchallenged, testimony of the prosecution witnesses, the learned Sessions Judge held the accused guilty of the offences leveled against him. Accordingly, convicted the accused for the offences as stated supra. 6. On perusal of the order sheet of the Sessions Court, the order dated 24.01.2017 discloses that charge was framed on the submission that “the charge may be framed.” It goes to show that the learned Sessions Judge has not at al l applied his mind judiciously before framing the charge. It is not a mere formality that has to be done by the Court. On the contrary, the learned Sessions Judge has to frame charge after hearing both sides. The accused was in custody through out. Therefore, the learned Sessions Judge should have been more careful in framing the charge. Trial before the Sessions Court is prescribed in Chapter XVIII of the Code of Criminal Procedure (hereinafter referred to as the “Cr.P.C.” for brevity). 7. Under Section 225, the first and foremost step to be followed is that the case shall be conducted by a Public Prosecutor. Thereafter, under Section 227 of Cr.P.C., the prosecutor has to open his case by describing the charge brought against the accused and stating by what evidence he proposes to prove the guilt of the accused. On perusal of the order sheet, I find that no such submission was made nor the learned Sessions Judge had apprised himself to find out what was the evidence i.e brought out in the charge sheet and whether there were any grounds to frame charge or whether there were any grounds to discharge the accused. It is only after considering these two aspects, Sessions Judge can proceed to frame charge under Section 228 of the Cr.P.C. 8. On perusal of the order sheet, I find that the Sessions Judge has not followed the procedure contemplated under Sections 226 and 227 of Cr.P.C. After framing charge and recording the plea of the accused, then, a date has to be fixed for prosecution evidence as provided under Section 230 of Cr.P.C. Section 231 of Cr.P.C. provides for recording of the evidence. Thereafter, learned Judge has to hear the prosecution as well as the defence on the evidence already recorded and the Judge on considering that there is no evidence to prove that the accused has committed the offence, shall record an order of acquittal. If the Sessions Judge does not acquit the accused under Section 232 of Cr.P.C., then the procedure as laid down under Section 233 of Cr.P.C. has to be followed. Under Section 233, the learned Judge has to cal l upon the accused to enter on his defence and adduce any evidence he might may have in his support thereof. He must also ask the accused as to whether he is going to examine any witnesses on his behalf and thereafter has to pass suitable orders on merits. Thereafter, arguments are to be heard and judgment has to be pronounced under Section 235 Cr.P.C. 9. The order sheet dated 04.05.2017 discloses that, on the date of trial, the counsel for the accused prayed for permission to retire from the case. Perused the memo and submission. The counsel through SCK had filed this memo for fixing the trial. There is no ground to permit Sri SCK, advocate to retire from the case. Hence, memo filed by the advocate for the accused Sri. SCK is rejected. Thereafter, the learned Judge recorded the statement of the witnesses who were present on that day i.e. PWs.3, 5, 7 and 9. After examination, the learned Judge noted in the deposition sheet that the advocate prayed time and time cannot be granted and therefore cross-examination was taken as nil. Even on subsequent dates also for the witnesses examined, it is noted that the counsel for the accused was absent. Subsequently, the witnesses who were examined as PWs.7 to 19, it is noted in the deposition sheet that the counsel for the accused is absent and therefore cross-examination is taken as nil. It does not even disclose that whether the accused himself was asked to cross-examine the witnesses. If the advocate was not there, the learned Judge, at least, would have verified from the accused whether he wishes to cross-examine the witnesses by himself or whether he would bring his advocate. First of all, the learned Judge had no power to reject the retirement memo. If the advocate was not there, the learned Judge, at least, would have verified from the accused whether he wishes to cross-examine the witnesses by himself or whether he would bring his advocate. First of all, the learned Judge had no power to reject the retirement memo. When the learned Judge found that the counsel for the accused is not appearing and as the witnesses are not cross-examined, at least, he should have appointed an amicus curiae. Section 303 of Cr.P.C. provides a right for a person against whom proceedings are instituted to defend by a pleader of his choice. If assistance of a pleader is not there, then the learned Judge should have asked the accused as to whether he wishes to engage any other advocate or whether he had any capacity to engage an advocate at his cost. The Court cannot compel an advocate to continue his vakalat and conduct the case for whom he wishes to retire. Further, the learned Sessions Judge has also not applied his mind with regard to Section 304 of the Cr.P.C. The said provision provides that “in a trial before the Court of Sessions, 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 of his defence at the expense of the State. Therefore, the Sessions Court should have al lowed the memo of retirement and thereafter, should have followed the procedure laid down under Section 304 of Cr.P.C. If that has been done, probably, the accused would have defended his case effectively. Therefore, by not following the above said procedure, I find that the entire trial is vitiated. The accused could not have been convicted on the basis of the evidence available on record which has been recorded against an established procedure for trial of a sessions case. The learned Judge was duty bound to follow the procedure, as stipulated, before proceeding to record the evidence. This is not a civil suit where the defendant does not file any written statement or cross-examine the witnesses and the suit is decreed exparte. This is a sessions trial involving life and death of an accused person. Fair trial of a criminal case is an essence of justice. Justice should not only be done but it should seem to have been done. This is a sessions trial involving life and death of an accused person. Fair trial of a criminal case is an essence of justice. Justice should not only be done but it should seem to have been done. Even the learned Public Prosecutor had also failed in his duty in not pointing out to the Court the above said procedure. 10. It is also important to note that the accused had also suffered severe burn injuries. Earlier the complainant alleged that the accused himself had poured kerosene and set his wife on fire. Later on by giving further statement, he also admitted that the accused had sustained burn injuries when he tried to save the victim. In a sessions case, the accused will not be convicted even if he pleads guilty. The burden of proof is on the shoulder of prosecution. Even though the accused is unrepresented, the learned Sessions Judge has noted in his order sheet dated 23.06.2017 that arguments of both sides are heard. Even on awarding punishment also, I find that the learned Sessions Judge has not properly applied his mind. It has imposed 10 years maximum punishment for the of fence punishable under Section 306 and 3 years maximum punishment as provided under Section 498 of IPC. The learned Sessions Judge has also not considered as to what was the explanation by the prosecution with regard to the injuries sustained by the accused. The learned Sessions Judge has not even taken into consideration the statement made by the accused that he tried to rescue his wife and in that process, he sustained burn injuries. In that case, the learned Sessions should have shown some leniency in imposing punishment. 11. Therefore, on such evidence, the accused could not have been convicted for the serious offence like 498A and 306 IPC. The learned Judge could have simply rejected the evidence that has been recorded. He has not assigned any sufficient reasons as to why he believes such evidence. The sole reason for believing the evidence on record by the learned Sessions Judge is that the evidence of prosecution has remained unchallenged. Hence, the accused could not have been convicted on an unchallenged testimony of the prosecution witnesses. Therefore, on perusal of the evidence and material on record, I find that the impugned judgment passed by the learned Sessions Judge is illegal, perverse, capricious and not sustainable in law. Hence, the accused could not have been convicted on an unchallenged testimony of the prosecution witnesses. Therefore, on perusal of the evidence and material on record, I find that the impugned judgment passed by the learned Sessions Judge is illegal, perverse, capricious and not sustainable in law. In fact District Legal Services Authority is headed by Principal District Judge. The learned Judge at least should have thought of taking assistance of a panel advocate from DLSA and at the cost of DLSA he could have appointed an advocate or at least the learned Judge could have appointed an amicus curiae to assist him in disposal of the case. Having failed to do so, I find that there is gross violation of procedural law which has vitiated the entire trial of the sessions case. The Hon’ble Supreme Court in the case of Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State of Maharashtra reported in (2012) 9 Supreme Court Cases 1 at para 404 by relying on other judgment observed that “right to free legal aid is an essential ingredient of due process that is implicit in the guarantee of Article 21 of the Constitution.” The Honble Supreme Court in the case of Surendra Koli v. State of Uttar Pradesh and others reported in (2014) 16 SCC 718 at para 11 has observed as follows: ”11. …, we would only observe that the learned District Judges while assigning the defence counsel, especially in cases where legal aid is sought for by the accused person, must preferably entrust the matter to a counsel who has an expertise in conducting the sessions trial. Such assignment of cases would not only better preserve the right to legal representation of the accused persons but also serve in the ends of ensuring efficient trial proceedings.” 12. At this stage, learned counsel for the appellant-accused submits that in the event, if this Court were to come to the conclusion to dispose of the matter by remanding the case, the accused may be granted bail. Hence, for al l the above said reasons, I pass the following order: The appeal by the appellant-accused is al lowed. At this stage, learned counsel for the appellant-accused submits that in the event, if this Court were to come to the conclusion to dispose of the matter by remanding the case, the accused may be granted bail. Hence, for al l the above said reasons, I pass the following order: The appeal by the appellant-accused is al lowed. The judgment of conviction and sentence dated 6.07.2017 passed by the learned I Additional District and Sessions Judge, Bagalkot, sitting at Jamakhandi, in Sessions Case No.69 of 2016 convicting the accused for the of fences punishable under Section 498A and 306 of the Indian Penal Code is set aside. The matter is remanded back to the Sessions Court for fresh disposal in accordance with law. The learned Sessions Judge is directed to provide an opportunity to the accused to engage a counsel of his choice, if, it is not possible, then the procedure laid down under Section 304 of Cr.P,C, 1973, shall be followed strictly in accordance with law. Thereafter, the Sessions Judge shall proceed with the trial of the case and dispose of the same within a period of five months from the date of receipt of the records. Since, the accused is in custody during the trial through out, in the event of he filing bail application before the Sessions Judge, the Sessions Judge shall consider the same in accordance with law. 13. Registry is directed to send back the records along with a copy of this judgment to the Court below and to the accused forthwith.