JUDGMENT : Nand Prabha Shukla, J. 1. Heard Sri Dileep Kumar, learned Senior Counsel assisted by Sri Sachin Mishra, who have appeared to assist the Court as Amicus Curiae and Ms. Archana Singh, learned Additional Government Advocate appearing for the State. 2. This Criminal (Capital) Appeal has been filed by the accused/appellant Ajay Kumar against the Judgement and Order dated 04.04.2019 passed by learned Sessions Judge, Auraiya in Sessions Trial No. 54 of 2016 (State Vs. Ajay Kumar and 3 others) arising out of Case Crime No. 142 of 2014, under Sections 452, 302/34, 506 and 225 IPC, Police Station-Arwakatra, District-Auraiya whereby appellant has been convicted and sentenced to death for offence under Section 302 IPC and to pay a fine of Rs. 1,00,000/-, for offence under Section 452 IPC to undergo rigorous imprisonment for three years and a fine of Rs. 5000/- and in Sessions Trial No. 55 of 2016 (State Vs. Ajay Kumar) arising out of Case Crime No. 143 of 2014, under Section 25/27 of the Arms Act, Police Station-Arwakatra, District-Auraiya whereby appellant has been convicted for offence under Section 25 of the Arms Act and to undergo rigorous imprisonment for three years and a fine of Rs. 5000/-, for offence under Section 27 of the Arms Act to undergo rigorous imprisonment for five years and a fine of Rs. 5000/-. The fine shall be recoverable as an arrear of revenue. In default of payment of fine, there shall be no stipulation for additional imprisonment. Eighty per cent of the fine recovered shall be payable to the parents of the deceased as compensation. 3. In the present matter, the Trial Court has proceeded to send a Reference under Section 366 Cr.P.C. for confirmation of death sentence which is being decided herein below:- 4. Prosecution story, in brief, is as follows:- The first informant Ram Pratap Awasthi, son of Shiv Shankar Lal, resident of Erwatipur, Police Station-Arwakatra, District-Auraiya moved a written Tehrir dated 10.10.2014 at 20:10 P.M. stating that on 10.10.2014 at around 6:30 P.M., when the first informant was sitting in his house talking to Prabha Kant and Ravish Kumar while his young daughter Km. Nisha, aged about 14 years, was busy studying in the courtyard, in the meantime, his neighbourer Ajay Kumar, son of Ram Naresh alias Naresh Chandra Kori, entered into the house and fired at his daughter on her chest with a country-made pistol. Nisha, aged about 14 years, was busy studying in the courtyard, in the meantime, his neighbourer Ajay Kumar, son of Ram Naresh alias Naresh Chandra Kori, entered into the house and fired at his daughter on her chest with a country-made pistol. Hearing the noise, people gathered and tried to nab the accused but the accused escaped leaving the country-made pistol on the spot. While nabbing, the parts of his torn clothes were left in his hands. The mother of the accused Radha Devi, brother Vijay and his wife intervened and helped him in escaping. Accused Ajay Kumar often stalked his daughter while she was on her way to school and extended threats. He did not complain to anyone due to family prestige. His daughter died on the spot due to fire-arm injury. Hence the FIR. 5. Thus, on the basis of the written report (Tehrir), a Chik FIR No. 142/2014, under Sections 452, 302, 506/34 IPC, Police Station Arwakatra, District-Auraiya was registered against four persons on 10.10.2014. The investigation was entrusted to Station House Officer-Vinod Kumar. 6. On 11.10.2014, on the pointing of accused/appellant Ajay Kumar, a country-made pistol of 315 bore, an empty cartridge and five live cartridges were recovered in a plastic bag kept inside his house. On the basis of which another FIR arising out of Case Crime No. 143 of 2014, under Section 25/27 of the Arms Act, Police Station Arwakatra, District-Auraiya was registered against Ajay Kumar. 7. During the course of investigation, plain earth and blood stained earth were recovered on 10.10.2014. The inquest report was prepared on 10.10.2014 at 9.00 P.M. On 11.10.2014, post-mortem report was prepared. During the post-mortem examination, following ante-mortem injuries were found on the body of the deceased (Km. Nisha):- “(i) Entry Firearm wound size (1x1 cm) right side of chest in upper inner quadrant of breast 9 cm away from nipple. Blackening present. Margin inverted. (ii) Exit wound of Firearm 11 cm, below left scapula and 12 cm. from spinal cord Size (1.5 x 1.5) cm. (iii) Injury No. 1st through and through injury No. 2nd.” 8. The cause of death was shown as 'shock and haemorrhage' due to firearm injury. 9. Blackening present. Margin inverted. (ii) Exit wound of Firearm 11 cm, below left scapula and 12 cm. from spinal cord Size (1.5 x 1.5) cm. (iii) Injury No. 1st through and through injury No. 2nd.” 8. The cause of death was shown as 'shock and haemorrhage' due to firearm injury. 9. On 12.10.2014, the site plan was prepared and, subsequently, statement of witnesses were recorded under Section 161 Cr.P.C. After completion of investigation, the charge-sheet was submitted in Case Crime No. 142 of 2014 against Ajay Kumar and 3 others under Sections 302, 452, 506 IPC and the co-accused Vijay, Radha Devi and Geeta Devi were charge-sheeted additionally under Section 225 IPC and in Case Crime No. 143 of 2014 only appellant Ajay Kumar was charge-sheeted under Section 25/27 of the Arms Act. 10. After taking cognizance, the charges were framed in Sessions Trial No.54 of 2016 against Ajay Kumar, Smt. Radha Devi, Vijay and Geeta Devi, under Sections 452, 302, 34, 506 IPC and against Radha Devi, Vijay and Geeta Devi under Section 225 IPC as well. In Sessions Trial No. 55 of 2016, the charges were framed against Ajay Kumar under Section 25/27 of the Arms Act. The accused denied their guilt and claimed to be tried. 11. During the trial proceedings, six prosecution witnesses were examined. (i) P.W.-1 Ram Pratap Awasthi (father of the deceased/eye witness) (ii) P.W.-2 Smt. Shashi Prabha (mother of the deceased/eye witness) (iii) P.W.-3 Ram Chandra Shukla, (Panch Witness) (iv) P.W.-4 Dr. Shailendra Kumar Singh, (conducted the post mortem) (v) P.W.-5 S.I. Vinod Yadav (Investigating Officer) (vi) P.W.-6 Awaneesh Dwivedi (I.O. of Case Crime No. 143 of 2014). 12. After the closure of prosecution evidence, statement of all the accused were recorded under Section 313 Cr.P.C. The accused/appellant denied the commission of crime and stated that due to village party bandi, he was falsely implicated in the present case. The other co-accused also denied the commission of crime. 13. The accused-appellant Ajay was convicted by the Trial Court under Sections 302, 452 IPC and Section 25/27 of the Arms Act and was acquitted from rest all other charges. The co-accused Radha Devi, Geeta and Vijay were acquitted from all the charges by the Trial Court. 14. The other co-accused also denied the commission of crime. 13. The accused-appellant Ajay was convicted by the Trial Court under Sections 302, 452 IPC and Section 25/27 of the Arms Act and was acquitted from rest all other charges. The co-accused Radha Devi, Geeta and Vijay were acquitted from all the charges by the Trial Court. 14. The accused/appellant Ajay Kumar after having been convicted under Sections 302, 452, IPC and Section 25/27 of Arms Act preferred the present Criminal (Capital) Appeal challenging the Judgement and Order dated 04.04.2019. A Death Reference No. 02 of 2019 has also been filed under Section 366 Cr.P.C. for the confirmation of death sentence. 15. At the outset, learned counsel for the accused-appellant argued that during the trial proceedings, reasonable opportunity was denied to the defence to cross-examine the prosecution witnesses. Though application (63Kha) was moved to recall P.W.-1 and P.W.-2 for cross examination, but it was rejected by the learned Trial Court. It was also argued that the compliance of section 309 Cr.P.C. was not done. 16. Referring to the order-sheet recorded by the Trial Court, it transpires that only two witnesses of fact were examined i.e. P.W.-1, Ram Pratap Awasthi (informant/Father/Eye Witness) and P.W.2, Smt. Shashi Prabha, (Mother/Eye Witness). 17. The examination-in-chief of PW-1 Ram Pratap Awasthi (father of the deceased/first informant) was recorded on 1.10.2016. The order-sheet shows that PW-1 was examined as a witness by the prosecution and his examination-in-chief was recorded on 1.10.2016. PW-1 in his statement has stated that the incident is of 10.10.2014 at about 6.30 in the evening when he was at home and talking to Prabhakant Dubey, Ravish Kumar Tiwari and his fourteen year old young daughter was studying in the courtyard. It was at this stage that the accused Ajay Kumar Kori entered the house and fired on the deceased by a country-made pistol on her chest. Hearing the voice, near-by residents also came to the house. Although the witness tried to apprehend him but on account of country-made pistol as well as threat rendered to him by his wife, mother Radha Devi and brother Vijay, the accused could flee from the place of occurrence. PW-1 further stated that the accused/appellant used to harass his daughter and often stalked her. Although the witness tried to apprehend him but on account of country-made pistol as well as threat rendered to him by his wife, mother Radha Devi and brother Vijay, the accused could flee from the place of occurrence. PW-1 further stated that the accused/appellant used to harass his daughter and often stalked her. This fact was disclosed by the deceased on which he had scolded the accused but the accused extended threats and said that he would take away his daughter and would kill him. With an intent to save the prestige of the family, he had not reported the incident to the police. The deceased, consequently, stopped going to school and the witness was looking after her. It is for this reason that the accused committed the murder of the deceased. He had got the written report scribed by Awadesh Kumar, and has proved it, which got marked as Ex.Ka.1. He has further disclosed that the police came on the spot and inquest was conducted whereafter the body was sent for postmortem. His statement was recorded under Section 161 Cr.P.C. PW-1 also showed the spot where the incident occurred. The cross examination of the PW-1 was deferred on an application for adjournment moved on behalf of the defence. The order-sheet clearly shows that the accused was present in the court on 1.10.2016. The case was adjourned to 6.10.2016. 18. On 6.10.2016, the accused was produced from the jail who refused to put his signatures. Co-accused Geeta Devi was present. The witness i.e. PW-1, however, was not present. Summons were thus issued to the witness fixing 21.10.2016 as the date. 19. On 21.10.2016 also the accused was produced from the jail but he did not incorporate his signatures. PW-1 was present. The matter, however, was deferred to 7.11.2016. The order-sheet dated 21.10.2016 is reproduced hereinafter:- 21-10-16 ^^iqdkj ij vfHk;qDr vt; ftyk dkjkxkj ls tsjs fgjklr gkftj vk;kA fdUrq vkns'k rd gLrk{kj ugh fd;sA lk{kh jkeizrki voLFkh gkftj vk;sA 'ks"k vfHk;qDrk xhrknsoh] jk/kk nsoh tsjs tekur gkftj vk;sA i=koyh okLrs 'ks"k lk{; fnuakd 7-11-16 dks is'k gksA^^ 20. From the perusal of the order-sheet of 21.10.2016, it appears that no proceedings were conducted and it is even doubtful whether the witness was put to cross examination. For further evidence the matter was deferred to 7.11.2016. 21. From the perusal of the order-sheet of 21.10.2016, it appears that no proceedings were conducted and it is even doubtful whether the witness was put to cross examination. For further evidence the matter was deferred to 7.11.2016. 21. On 7.11.2016 again the accused was produced from the jail but he denied making signatures on the order-sheet. The witness i.e. PW-1 was again not present and the court passed an order for summoning of the witness. This is clearly reflected from the order-sheet of 7.11.2016. The order-sheet dated 7.11.2016 is reproduced hereinafter:- 07-11-16 ^^iqdkj ij vfHk;qDr vt; ftyk dkjkxkj ls mifLFkr vk;k ysfdu gLrk{kj djus ls euk fd;k vfHk;qDr fot; dh gkŒekŒ tfj;s vf/kŒ ekQA vfHk;qDrk xhrknsoh] jk/kk nsoh tekur ij mifLFkr gSA lk{kh vuqŒ lk{kh ryo gksA i=koyh okLrs lk{; fnuakd 21-11-16 dks is'k gksA^^ 22. On 21.11.2016 the accused was again produced from the jail. Application for adjournment was allowed by imposing a cost of Rs.1,000/-. From the perusal of order-sheet dated 21.11.2016 it is not clear as to whether the witness was even present on that day or not? There is no mentioning in the order-sheet about the presence of PW-1. The order-sheet dated 21.11.2016 is thus reproduced hereinafter:- 21-11-16 ^^iqdkj ij vt; ftyk dkjkxkj ls tsjs fgjklr gkftj vk;kA vfHk;qDr fot; dh vksj ls 26[k fn;k x;k lquk Lohd`rA 'ks"k vfHk;qDr x.k xhrk] jk/kk nsoh gkftj vk;hA vfHk;qDr dh vksj ls LFkxu izkŒi= 27[k okLrs ftjg gsrq vU; frfFk fnyk;s tkus ds fy, fn;k FkkA vkns'k gqvk Heard. Approved Allowed Rs. One thousand according Cost be deposited to the Gov. Account. Put up on 5.12.16 gŒviBuh; ASJ/FTC I" 23. On 5.12.2016 the accused was produced from the jail. PW-1 was present. Defence, however, did not examine the witness. Trial court noticed that the examination-in-chief was conducted on 1.10.2016 and the defence was deliberately not cross-examining the witness. The witness also informed that he had been extended threats. It is at this stage that the right to cross-examine PW-1 was forfeited and the proceedings were adjourned to 21.12.2016. PW-1 was present. Defence, however, did not examine the witness. Trial court noticed that the examination-in-chief was conducted on 1.10.2016 and the defence was deliberately not cross-examining the witness. The witness also informed that he had been extended threats. It is at this stage that the right to cross-examine PW-1 was forfeited and the proceedings were adjourned to 21.12.2016. The order-sheet dated 5.12.2016 is reproduced hereinafter:- 05.12.16 ^^l= ijh{k.k is'k gqvk iqdkj djkbZ xbZ vfHk;qDr vt; tsj fgjklr tsy ls gkftj vk;kA vfHk;qDRkk jk/kk nsoh dh gkftjh ekQh izkFkZuk i= dsoy vkt ds fy, Lohd`rA vfHk;qDrx.k xhrk o fot; tsj tekur gkftj vk,] xokg jke izrko voLFkh ¼ihŒMCY;w&1½ gkftj vk;kA cpko i{k }kjk ftjg ugha dh xbZA xokg jke izrki voLFkh dh eq[; ijh{kk fnukad 01@10@16 dks vafdr dh xbZ gS vkSj cpko i{k }kjk tkucw> dj ftjg ugha dh tk jgh gSA le; 03 ctdj 22 feuV gks jgk gSA LFkxu izkFkZuk i= Hkh ugha fn;k x;kA xokg jke izrki voLFkh }kjk dgk x;k fd mls tku ls ekjus dh /kedh eqfYteku dh vksj ls nh tk jgh gSA xokg ¼ihŒMCY;w&1½ Jh jke izrki voLFkh ls cpko i{k dk ftjg dk volj lekIr fd;k tkrk gSA i=koyh fnŒ21-12-16 okLrs 'ks"k lk{; is'k gksA^^ 24. From the proceedings of the trial, it is clearly reflected that the examination-in-chief of PW-1 was held on 1.10.2016. The cross-examination on that day was deferred on the prayer of the defence. On 6.10.2016 and 7.11.2016, PW-1 was not present and, therefore, the question of his cross-examination on these two dates would not arise. In the order-sheet of 21.10.2016 there is no mention that the witness was produced for cross-examination or that the defence failed to cross-examine him. On 21.11.2016 also it is not clear as to whether the witness was present in court or not. On 5.12.2016 the right to cross-examine PW-1 was nevertheless forfeited. On the date when the witness was present, the defence did not cross-examine him on the plea that their lawyer Saurabh Pathak was engaged in some other matter. 25. There is nothing on record to show that the accused was warned by the court that if his lawyer fails to cross-examine the witness then his testimony would be read against him. The trial court also made no endeavours to offer the services of an Amicus Curiae, who could have conducted cross-examination on behalf of the accused. 25. There is nothing on record to show that the accused was warned by the court that if his lawyer fails to cross-examine the witness then his testimony would be read against him. The trial court also made no endeavours to offer the services of an Amicus Curiae, who could have conducted cross-examination on behalf of the accused. The accused was also not informed that he could himself cross-examine PW-1 if he so wishes. The order-sheet reveals that though the right of cross-examination was forfeited by the trial court on 5.12.2016 but the proceedings were routinely adjourned and the next witness i.e. Shashi Prabha (PW-2), who happens to be the mother of the deceased was produced in evidence on 7.5.2018. 26. The testimony of PW-2 has been produced before us as per which the incident occurred at about 6.30 PM when the witness was cooking food and her husband (PW-1) was sitting with villagers Prabhakant and Ravish Kumar. Her daughter aged fourteen years was studying in the courtyard. It is at this stage that the accused entered the house and shot at the chest of his young daughter with a country-made pistol. Hearing the gunshot, neighbours from the locality rushed to the spot. Effort was made to apprehend the accused but he fled. PW-2 also stated that her daughter was harassed by the accused on account of which she had stopped going to the school. The accused felt annoyed and maintained enmity for such reasons. On 7.5.2018 both the counsels of accused did not turned up to cross-examine PW-2. The right of cross-examination on that day itself was forfeited. For the remaining evidence, the matter was deferred to 12.6.2018. The accused undisputedly was present in court. The part of the order-sheet dated 7.5.2018 is reproduced hereinafter:- “x x x x x x x x x x x vfHk;qDrx.k ds nksuks fo}ku vf/koDrkvksa dks lwpuk nh x;h ijarq fo}ku vf/koDrkx.k izfrijh{kk gsrq ugha vk;sA var% volj lekIr fd;k tkrk gSA dksVZ lfVZfQdV gŒ viBuh; ,ŒMhŒtsŒ&1 vkSjs;k 07-05-18 lqudj rLnhd fd;kA gŒ viBuh; ,ŒMhŒtsŒ 1 vkSjs;k 07-05-18 gŒ'kf'kizHkk^^ 07-05-2018%& ^^iqdkj ij vfHk;qDrx.k tsy ls gkftj vk;sA lk{kh Jhefr 'kf'k izHkk mifLFkr vk;h ¼ihŒMCY;w&2½ vafdr fd;k x;kA i=koyh okLrs 'ks"k lk{; fnukad 12-6-2018 dks is'k gksA 'ks"k lk{kh ryc gksA gŒ viBuh; Adv I. Au.” 27. From the order-sheet, it is clear that PW-2 was not examined since the two lawyers of accused failed to turn up. There is nothing in the order-sheet to show that any legal aid was offered to the accused or he was told about his right to cross-examine the witness. 28. During the course of arguments, learned counsel for the accused/appellant carried our attention to the application 63 (Kha) dated 15.03.2019 which was moved by the defence seeking permission for the cross-examination of P.W.-1/first informant, on the ground, that their opportunity of cross-examining the prosecution witnesses was closed. The order-sheet of the Trial Court is as follows:- Order dated 15.03.2019:- ^^iqdkj ij vfHk;qDrx.k gkftj vk;sA vfHk;qDrx.k ds vf/koDrk us 63 [k izkŒi= oknh ls ftjg djus dh vuqefr gsrq fn;kA ih-vks- egksn; ØsUnh; utkjr ds okf"kZd eqvkbus es O;Lr gSA l= ijh{k.k okLrs lquokbZ 63 [k izkŒi= o lk{; 313 lhvkjihlh fnukad 25-3-2019 dks is'k gksA gŒviBuh; S.J. Auraiya" 29. On 25.3.2019, the application for recall of witness was considered and rejected by the court below vide following orders:- 25.03.2019:- ^^i=koyh is'kA vfHk;qDrx.k mifLFkr gSA vkosnu 63 [k dk fUkLrkj.k %& ;g vkosnu vt; dqekj vkfn dh vksj ls bl vk'k; dk izLrqr fd;k x;k gS fd oknh eqdnek ls ftjg lekIr dj nh x;h gS] blfy,] oknh eqdnek ls ftjg dk volj iznku fd;k tkuk pkfg,A lquk rFkk i=koyh dk voyksdu fd;kA i=koyh ds voyksdu ls Kkr gksrk gS fd ;g i=koyh vkt /kkjk 313 naŒiaŒlaŒ ds c;kuks esa fu;r gSA oknh ihŒMCY;w&1 dk c;ku fnukad 01-10-2016 dks ntZ fd;k x;kA bLk frfFk dsk bl lk{kh ls ftjg djus ds fy, dksbZ vf/koDrk mifLFkr ugha gq,] blfy, ftjg dk volj lekIr fd;k x;kA bl izdkj nks o”kZ ls vf/kd vof/k O;rhr gks tkus ds ckn ;g vkosnu izLrqr fd;k x;k gS] tks tkfgj djrk gS fd vfHk;qDrks dk mnns'; fopkj.k esa nsjh dkfjr djus dk gSA vU;Fkk /kkjk 313 naŒizŒlaŒ ds varZxr fu;r gks tkus ds iwoZ Hkh bl izd`fr dk vkosnu izLrqr fd;k tk ldrk FkkA vkosnu esa ;g rF; vafdr ugha gS fd fu;r frfFk dks lk{kh ls ftjg D;ksa ugha dh tk ldhA vr% vkosnu esa ftjg u dj ldus dk dkj.k ugha n'kkZ;k x;k gS] U;k;ky; }kjk lk{kh ls ftjg dk i;kZIRk volj iznku fd;k gSA vkosnu esa ftjg u dj ldus dk dkj.k ugha n'kkZ;k x;k gS] U;k;ky; }kjk lk{kh ls ftjg dk i;kZIr volj iznku fd;k x;k gSA vkosnu esa dksbZ dkj.k nf'kZr u djus ds dkj.k ;g fu"d"kZ fn;k tkuk lEHko ugah gS fd D;k ;FkkFkZ esa ,slk dkj.k ekStwn Fkk] ftldh otg ls vfHk;qDrks }kjk ihMCY;w&1 ls ftjg ugh dh tk ldhA vr% bl fLFkfr esa vkosnu 63[k Lohdkj ugh fd;k tk ldrk gSA rnuqlkj vkosnu [kkfjt fd;k tkrk gSA /kkjk 313 naŒiŒlaŒ ds varZxr c;ku ntZ fd;s tk;sA gŒviBuh; l= U;k;k/kh'k] vkSjs;k^^ 30. PW-1 and PW-2 were the only two witnesses of fact produced by the prosecution. Their testimony forms the basis of conviction and sentence awarded to the accused. Denial of cross-examination of these two witnesses had serious adverse consequences for the accused. Cross-examination otherwise confers a valuable right upon the accused to challenge the credibility of witness and also test the veracity of their statement. Right of cross-examination cannot be taken away unless a fair opportunity is given to the accused to defend himself. Denial of cross-examination of these two witnesses had serious adverse consequences for the accused. Cross-examination otherwise confers a valuable right upon the accused to challenge the credibility of witness and also test the veracity of their statement. Right of cross-examination cannot be taken away unless a fair opportunity is given to the accused to defend himself. Whether or not such fair opportunity has been given to the accused appellant in this case is the core question to be answered by us. 31. In order to consider the issue raised we may gainfully refer to the provisions contained in Section 309 and 231 Cr.P.C. which throw light on the manner in which a fair trial is to be conducted. Section 309 Cr.P.C. empowers the court to postpone or adjourn the proceedings. Sub-section 2 of Section 309 Cr.P.C. allows the court jurisdiction to postpone the commencement of, or adjourn, any inquiry or trial, from time to time for reasons to be recorded. The proviso to it stipulates that the remand of accused shall not exceed fifteen days at a time; provided further that witness are in attendance, no adjournment or postponement shall be granted without examining them, except for special reasons to be recorded in writing. The statute, however, provides that no adjournment would be granted at the request of a party unless the circumstances are beyond the control of that party. The fact that pleader of a party is engaged in another court is expressly excluded as a ground for adjournment. Power is also vested in the court to record the statement of witness if the party or his pleader is either not present or even though present is not ready to examine or cross-examine the witness. In such an event the court also has the power to dispense with the examination-in-chief or cross-examination of a witness, as the case may be. Section 231 Cr.P.C. of the Code, moreover, states that on the date fixed for the evidence of prosecution the Judge shall proceed to take all such evidence as may be produced in support of the prosecution. Sub-section 2 of Section 231 Cr.P.C. vests discretion in the Judge to defer cross-examination until other witness or witnesses have been examined or recall the witness for further cross-examination. 32. Sub-section 2 of Section 231 Cr.P.C. vests discretion in the Judge to defer cross-examination until other witness or witnesses have been examined or recall the witness for further cross-examination. 32. Upon a perusal of the order-sheet we have already noticed that on the date of examination-in-chief of PW-1 and PW-2, the defence lawyer did not cross-examine them. Right of cross-examination was forfeited in respect of PW-2 on the very day when her examination-in-chief was recorded. In respect of PW-1, the proceedings were adjourned to 6.10.2016 but on that day the witness himself was not present. On 21.10.2016 though PW-1 was present but the order-sheet nowhere records that the witness was produced for cross-examination and there was a failure on part of the defence to cross-examine him. On 7.11.2016 though PW-1was again not present and, therefore, it cannot be assumed that there is a failure on part of the defence to examine PW-1. On 21.11.2016 the proceedings were adjourned on the request of defence by imposing a cost of Rs.1,000/-. It is not clear as to whether the witness was not available for cross-examination in court. On 5.12.2016 the right of cross-examination of PW-1 was forfeited after noticing his statement that threats are being extended to him. 33. The order-sheet clearly reveals that PW-1 and PW-2 both were present for cross-examination but they were not cross-examined by the defence. The adjournment applications on record merely state that counsel for the defence was engaged elsewhere. Section 309 Cr.P.C. stipulates that engagement of pleader in another court cannot be a ground for adjournment. 34. The exercise of jurisdiction vested in the trial court to dispense with the cross-examination of an important witness, on account of failure on part of the lawyer to cross-examine the witness has to be examined in the context of valuable right of accused to cross-examine such witness. We cannot loose sight of the fact that accused often are not familiar with the procedures to be followed in a court of law or the consequences which may result on account of failure on part of his lawyer to cross-examine an important witness. The socio-economic conditions of the accused is also required to be kept in mind. Incalculable harm can be caused to an accused on account of incompetence on part of the lawyer. The socio-economic conditions of the accused is also required to be kept in mind. Incalculable harm can be caused to an accused on account of incompetence on part of the lawyer. In this case the accused is to be sent to the gallows relying upon the testimony of the two witnesses who were never cross-examined on account of abdication of duties by the lawyer. We have also gone through the original records and find that various questions were available to the defence counsel for cross-examining the two witnesses of fact but those questions were never put. Since we are not inclined to make any observations regarding the merits of the case as such we refrain from elaborating any further on this aspect. 35. Hon’ble Supreme Court in Munna Pandey vs. State of Bihar 2023 SCC OnLine SC 1103 has quoted with approval Harry Browne to state that “A fair trial is one in which the rules of evidence are honored, the accused has competent counsel, and the judge enforces the proper court room procedures - a trial in which every assumption can be challenged.”(emphasis supplied by us) 36. Availability of a competent counsel is thus of critical importance in a fair trial. The rights of an accused cannot be protected if the lawyer is either not available or fails to act with due diligence. It is in this context that the courts have recognized the right in an accused to be defended by a competent lawyer. In a case where services of a lawyer are not available to the accused the court can appoint an Amicus Curiae to protect his right. In the context of hearing of a criminal appeal, the Supreme Court in Kabira vs. State of U.P. 1981 (Supp) SCC 76 held that dismissal of criminal appeal in default would not be a proper disposal. The court held that if the appellant was not present, the learned Judge should have appointed a lawyer as Amicus Curiae and then proceed to dispose of the appeal on merits. The following passages of the judgment of Kabira (supra) is extracted hereinafter:- “We are, therefore, of the view that there has not been a proper disposal of the appeal preferred by the appellant. The appeal could not be dismissed by the learned Judge for default of appearance. The following passages of the judgment of Kabira (supra) is extracted hereinafter:- “We are, therefore, of the view that there has not been a proper disposal of the appeal preferred by the appellant. The appeal could not be dismissed by the learned Judge for default of appearance. If the appellant was not present, the learned Judge should have appointed some advocate as amicus curiae and then proceeded to dispose of the appeal on merit.” 37. Recently in K. Muruganandam & Ors. vs. State of Rep. By the Deputy Superintendent of Police & Anr. 2021 SCC OnLine SC 690 the Court reiterated the observations made in Kabira (supra) in para 8 of their Lordships judgment which is reproduced hereinafter:- “8. ……..if the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed with the hearing of the case only after appointing an amicus curiae, but cannot dismiss the appeal merely because of non-representation or default of the advocate for the accused.” 38. In Shaik Mukthar and Another vs. State of Andhra Pradesh (Now State of Telangana), (2020) 19 SCC 178 wherein it has been held that: “It is by now well settled by a catena of judgments such as the decision of this Court in Rakesh & Anr. V State of Madhya Pradesh, 2011 (12) SCC 513 , that it is in the interest of justice to appoint an amicus curiae to assist the court where the accused is unrepresented. The Court may also refer the matter to the Legal Services Committee, which may appoint an advocate to represent the accused.” 39. Learned Single Judge of this Court in Maneesh Pathak vs. State of U.P. 2023 SCC OnLine All 64 has emphasized the importance of personal liberty to observe that protection of liberty is the crown of the court processes. In the event of non-appearance of a prisoner’s counsel the court may appoint an Amicus Curiae to proceed with the hearing of the matter. In Munna Pandey (supra) the Court has reiterated that free and fair trial is sine-qua-non of Article 21 of the Constitution of India. The importance of a free and fair trial has been emphasized in following words:- “Free and fair trial is sine-qua-non of Article 21 of the Constitution of India. In Munna Pandey (supra) the Court has reiterated that free and fair trial is sine-qua-non of Article 21 of the Constitution of India. The importance of a free and fair trial has been emphasized in following words:- “Free and fair trial is sine-qua-non of Article 21 of the Constitution of India. If the criminal trial is not free and fair, then the confidence of the public in the judicial fairness of a judge and the justice delivery system would be shaken. Denial to fair trial is as much injustice to the accused as to the victim and the society. No trial can be treated as a fair trial unless there is an impartial judge conducting the trial, an honest, able and fair defence counsel and equally honest, able and fair public prosecutor. A fair trial necessarily includes fair and proper opportunity to the prosecutor to prove the guilt of the accused and opportunity to the accused to prove his innocence.”(emphasis supplied by us) 40. In Rahul vs. State of Delhi Ministry of Home Affairs & Anr. (2022) Supreme (SC) 1136 the Court has emphasized the importance of the role to be played by a Judge in a criminal appeal. Referring to Section 165 of the Indian Evidence Act, 1872 the Court made following observations:- "The Court is constrained to make these observations as the Court has noticed many glaring lapses having occurred during the course of the trial. It has been noticed from the record that out of the 49 witnesses examined by the prosecution, 10 material witnesses were not cross-examined and many other important witnesses were not adequately cross-examined by the defence counsel. It may be reminded that Section 165 of the Indian Evidence Act confers unbridled powers upon the trial courts to put any question at any stage to the witnesses to elicit the truth. As observed in several decisions, the Judge is not expected to be a passive umpire but is supposed to actively participate in the trial, and to question the witnesses to reach to a correct conclusion. This Court while not accepting the submission that it was improper for the Court to have interjected during the course of cross-examination of the witness, had observed in the case of State of Rajasthan vs. Ani alias Hanif and Others, (1997) 6 SCC 162 thus: We are unable to appreciate the above criticism. This Court while not accepting the submission that it was improper for the Court to have interjected during the course of cross-examination of the witness, had observed in the case of State of Rajasthan vs. Ani alias Hanif and Others, (1997) 6 SCC 162 thus: We are unable to appreciate the above criticism. Section 165 of the Evidence Act confers vast and unrestricted powers on the trial court to put "any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant" in order to discover relevant facts. The said section was framed by lavishly studding it with the word "any" which could only have been inspired by the legislative intent to confer unbridled power on the trial court to use the power whenever he deems it necessary to elicit truth. Even if any such question crosses into irrelevancy the same would not transgress beyond the contours of powers of the court. This is clear from the words "relevant or irrelevant" in Section 165. Neither of the parties has any right to raise objection to any such question." 41. Applying the principles relating to conduct of a fair trial in the facts of the present case we find that the Court of Sessions has not adequately protected the right of the accused who has been denied a fair trial in the matter. In the event the court intended to forfeit the right of cross-examination of the accused it ought to have alarmed the accused of the consequences which were to follow if the witnesses were not being cross-examined. The Court was also enjoined to offer an opportunity to the accused either to cross-examine the witness himself or to offer him the services of an Amicus Curiae so that the witness could be cross-examined. Unless adequate opportunity is offered to the accused to defend himself in a fair trial his conviction and sentence cannot be approved of in a country governed by rule of law. There is nothing on record to show that the trial Judge ever informed the accused of the consequences which were to befall on him on account of failure to cross-examine PW-1 and PW-2 nor the accused was extended the opportunity of legal aid by providing him an Amicus Curiae. There is nothing on record to show that the trial Judge ever informed the accused of the consequences which were to befall on him on account of failure to cross-examine PW-1 and PW-2 nor the accused was extended the opportunity of legal aid by providing him an Amicus Curiae. The accused was also not informed of his right to cross-examine his witness if his lawyer was not available, before the testimony of PW-1 and PW-2 could be relied upon against the accused. 42. For the above reasons, we cannot confirm the death sentence awarded to the accused in the matter. 43. For all the afore-stated reasons, in the interest of justice and fair trial as well as taking all the circumstances collectively, we are of the considered view that the matter be remitted back to the Trial Court with a direction to afford the accused-appellant a fresh opportunity to cross-examine the prosecution witnesses (witnesses of fact) i.e. P.W.-1 and P.W.-2 within a period of three months in accordance with law. The reference submitted by the Trial Court is hereby rejected. The impugned Judgment and Order dated 04.04.2019 passed by learned Sessions Judge, Auraiya convicting and sentencing the accused/appellant is hereby set aside. 44. The matter is remitted back to the Trial Court for necessary compliance as discussed herein above. 45. The Trial Court shall provide an appropriate Advocate to the accused-appellant, in case the appellant does not make any arrangement for their representation. 46. We also direct the Trial Court to make all sincere effort to conclude the trial in accordance with law, expeditiously within a period of six months from the date of receipt of the certified copy of this judgment. 47. It is made clear that we have not expressed any opinion on the merits of the case. 48. We record our appreciation for the able assistance rendered to us by the Amicus Curiae, who would be entitled to his fee as per the rules of the High Court Legal Services Committee. 49. Copy of this Judgment along with the Trial Court record be sent back.