Om Prakash Yadav vs State Of U.P.
2018 Latest Caselaw 1754 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 42
 
Case :- JAIL APPEAL No. - 1988 of 2013  AFR
 
Appellant :- Om Prakash Yadav
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- From Jail,Anil Kumar Shukla
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Arvind Kumar Mishra-I,J.

Hon'ble Chandra Dhari Singh,J.

Heard Ms. Kanchan Chaudhary, the learned amicus curiae for the accused-appellant Om Prakash Yadav, Shri A.N. Mulla assisted by Shri J.K. Upadhyay and Shri Nikhil Chaturvedi, learned A.G.As. for the State and perused the record.

The instant jail appeal has been preferred by accused Om Prakash Yadav challenging the sustainability and validity of the judgment and order of conviction dated 21.02.2013 passed by the Additional Sessions Judge/ Special Judge (Prevention of Corruption Act), in Sessions Trial No.1278 of 2011 State Vs. Om Prakash Yadav arising out of Case Crime No.1298 of 2011 under Sections 302, 506 IPC, Police Station Nawabganj, District Bareilly, whereby the appellant has been sentenced to imprisonment for life coupled with fine Rs. 20,000, with default stipulation to suffer additional one year imprisonment on the first count and one year simple imprisonment coupled with fine Rs.1000/- with default stipulation to suffer additional 15 days imprisonment, on second count. Both the sentences have been directed to run concurrently.

Relevant facts of this case as available on record appear to be that the informant Rai Singh Yadav lodged the first information report with the Police Station Nawabganj, District Bareilly, at Case Crime No.1298 of 2011 under Sections 302, 506 I.P.C. on 14.09.2011 at 6:30 a.m. regarding the incident of murder caused by his real father-appellant Om Prakash Yadav son of Chetram at his home in the night of 14.09.2011 at 2:00 a.m., with the specific allegation that the appellant killed the informant's mother Nanni Devi by causing blow with Banka on her neck.

On the basis of the written report, Check FIR was entered and the case was accordingly registered against the appellant in the concerned general diary under aforesaid crime number and under aforesaid Sections of I.P.C.

The investigation ensued, the same was taken over by Incharge Inspector Karan Singh PW-7 who along with S.I. Dhananjay Singh PW-10 arrived on the spot and got prepared the inquest report Ext. Ka-8 and relevant papers. The Investigating Officer PW-7, after recording opinion of the inquest witnesses, sent the dead body for post mortem examination at mortuary Bareilly where postmortem examination was conducted by Dr. Vagesh Vaish PW-6 on 14.09.2011 at 2:35 p.m. who noted 9 ante mortem incised wounds on the cadaver of the deceased Nanni Devi and opined that these injuries may be caused by sharp edged object/weapon and the relevant time of death was assessed around 2:00 a.m. in the night intervening 13/14.09.2011. He (PW-6) has proved post mortem examination report Ext. Ka-3.

During the course of investigation, the appellant was arrested by S.I. Dhananjay Singh PW-10 on 19.09.2011 and recovery of weapon of assault Banka was made at the pointing out of the accused. The Investigating Officer PW-7 prepared the site plan Ext. Ka-6. Apart from that, he collected simple and blood stained soil from the spot and after obtaining copy of the post mortem examination report and recording the statement of the witnesses, he submitted charge sheet Ext. Ka-7 against the appellant.

Consequently, the case was committed to the court of Sessions and the appellant was heard on the point of charge. The charges were framed under Section 302, 506 I.P.C. which were denied by the appellant.

The prosecution was asked to adduce its testimony whereupon the prosecution produced in all ten witnesses namely; Rai Singh PW-1, Nihal Singh PW-2, Sangeeta Yadav PW-3, Pawan Yadav PW-4, Sri Krishna PW-5, Dr. Vagesh Vaish PW-6, Karan Singh PW-7, Murli Singh PW-8, Shyam Singh PW-9 and Dhananjay Singh PW-10.

Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of the accused was recorded under Section 313 Cr.P.C., wherein, he has specifically stated that the prosecution was rightly launched against him and in reply to question no.12, he virtually admitted his guilt that he asked his wife three times to prepare tea in the evening as the guest had arrived at his home but tea was not prepared by her due to which altercation took place and he killed his wife.

In view of above, no testimony was adduced in defence.

Learned trial Judge after considering the case on its merit returned aforesaid finding of conviction and sentenced the accused to imprisonment for life coupled with fine Rs. 20,000, with default stipulation to suffer additional one year imprisonment under Section 302 IPC and one year simple imprisonment coupled with fine Rs.1000/- with default stipulation to suffer additional 15 days imprisonment under Section 506 I.P.C.

Consequently, this appeal.

At the very outset, learned amicus curiae for the appellant has contended that in this case, cross examination of the prosecution witnesses was not done by the defence and not a single witness has been cross examined by the accused.

The trial is not fair because of non-engagement/appointment of a lawyer to defend the accused. Cross examination of all prosecution witnesses (10 in all) is nil. Therefore, merit of the oral testimony of witnesses cannot be properly evaluated. Merit of the case can be assessed properly only after cross examination of all prosecution witnesses is complete. The trial court failed to do the needful by not appointing amicus curiae for the accused, thus the sentence imposed is liable to be set aside and the case be remanded back for cross examination of all prosecution witnesses.

Lower court record shows that no private counsel was engaged by the accused and the trial court did not appoint any amicus curiae for the accused.

Learned A.G.A. has submitted that it was incumbent on the trial court to have appointed first the amicus curiae on behalf of the accused for conduction and disposal of the trial notwithstanding fact that the accused was reluctant to avail services of any counsel/amicus curiae.

We have also Considered the submissions.

Record shows that application 9-Kha dated 20.11.2012 was moved by the accused-appellant before the trial court wherein he has stated that he does not need service of any government Advocate whereupon an order was passed on the application itself by the Presiding Officer in his handwriting that despite insistence by the Court, the appellant is not prepared to take/accept service of any government Advocate although Rai Singh and Nihal Singh both the sons of the appellant were present before the trial court. On being asked by the trial court to arrange a counsel for defence, appellant refused to do so.

But surprisingly, the trial court failed to take note of the established practice usually adopted by the trial court in criminal trials that in case an accused is not in a position to engage a counsel then service of amicus curiae is to be extended to him notwithstanding his objection to it, that he does not wish to engage counsel for his defence.

The accused can raise objection only to the appointment of a particular counsel engaged to defend him but he can not object to fact of counsel being appointed by the court to defend him. Here, all the ten prosecution witnesses have been examined in chief but they have not been cross examined by the defence as the accused refused service of counsel to defend him. That way, tenets of fair trial have not been complied with as was required of the trial court and the trial remains at the half way stage as such it is incomplete in itself. It cannot be said that the trial is complete unless amicus curiae is appointed and all the prosecution witnesses are resummoned for their cross examination by the amicus curiae for the accused. Thus the vital process of cross examination is incomplete. That is to be completed in accordance with law.

In view of above, it would be of no use for us to consider the merits of the case and the same cannot be scrutinized by this Court, for the aforesaid reasons that not a single prosecution witness has been cross examined by the defence and no counsel to defend the accused was appointed by the trial court and service of amicus curiae was not availed albeit the accused was reluctant to engage the government counsel to defend him.

Therefore, the instant appeal need be remanded back to the trial court with the direction to first appoint amicus curiae for the accused. If name of the particular amicus curiae is not objected by the accused then he should be asked to defend the accused and cross examine the ten prosecution witnesses on behalf of the accused after they are resummoned by the trial court without occasioning unnecessary delay.

In this view of the matter, we neither allow nor disallow the instant appeal as nothing has been reflected on merits of the case and the case is remanded back to the trial court for ensuring cross examination of all the prosecution witnesses after resummoning them and after cross examination of the prosecution witnesses, the trial court shall conclude the trial in accordance with law and scrutinize merit of the case and record its finding.

Consequently, the judgment and order of conviction dated 21.02.2013 passed by the Additional Sessions Judge/ Special Judge (Prevention of Corruption Act), in Sessions Trial No.1278 of 2011 State Vs. Om Prakash Yadav arising out of Case Crime No.1298 of 2011 under Sections 302, 506 IPC, Police Station Nawabganj, District Bareilly, being erroneous is not sustainable in the eye of law in its present form and the same is set aside by us, for the reasons aforesaid.

The instant appeal is disposed of in aforesaid terms.

However, it is clarified that we have not expressed any opinion on the merits of the case which shall be determined afresh by the trial court only after cross examination of the prosecution witnesses is complete.

Office is directed to send back the entire lower court's record to the trial court concerned forthwith.

Order Date :- 28.7.2018

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