Sau. Lilabai @ Kalipili Shankar ... vs State Of Maharashtra
2012 Latest Caselaw 83 Bom

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                            NAGPUR BENCH, NAGPUR 




                                                        
                       CRIMINAL APPEAL NO. 760 OF 2008




                                           
                           
    Sau. Lilabai @ Kalipili Shankar Raut,
                          
    Aged about 35 yrs., r/o. Anjangaon
    Surji, District Amravati.
    (Presently confined in Amravati
    Central Jail).                            ........           APPELLANT
      
   



           // VERSUS // 





    State of Maharashtra,
    Through the Police Station Officer,
    Anjangaon Surji, District Amravati.   ........        RESPONDENT





    -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= 
            Mr.N.S.Bhat, Advocate for Appellant.
            Mr.A.S.Sonare, A.P.P. for Respondent/State.
    -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=




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                                                            CORAM  :   P. V. HARDAS &
                                                                               A. P. BHANGALE, JJ.




                                                                                         
                                                     DATE      :   5.10.2012.




                                                                 
     JUDGMENT   (Per A.P.Bhangale, J)    : 

1. The appellant/accused has preferred this appeal aggrieved by

the Judgment and Order dated 11-08-2008 in Sessions Trial No. 42 of

2005 by the Ad-hoc Additional Sessions Judge, Achalpur, District

Amravati whereby she was convicted for the offence of murder

under Section 302 of the Indian Penal Code and sentenced to suffer

imprisonment for life and to pay a fine in the sum of Rs 250/- in

default to suffer simple imprisonment for three months.

2. We have heard the submissions at the bar and perused the

record.

3. The accused was facing Sessions trial on the ground that she

was a neighbourer of deceased Sadhana. There was an alleged

incident of stone pelting on the house of the accused on the earlier

day, regarding which she had a suspicion in respect of involvement of

deceased Sadhana. On the following day, on 23-12-2004, the

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appellant abused Sadhana and poured kerosene on her person and set

her ablaze by lighting a matchstick, which resulted in sustaining 31%

burn injuries by Sadhana. She died on 03-01-2005. Ten witnesses

were examined by the prosecution. It appears from the evidence on

the record that appellant/accused Lilabai was represented by two

Advocates namely Shri D.W. Deshmukh and Shri Hiwrale.

4. Despite the above fact, we find that the accused remained

undefended as her Advocate on record was absent in the trial Court

at the crucial stage when the medical witness i.e. Dr. Sheetal Thorat

(PW-9) was required to be cross-examined. On the ground that the

Advocate for the accused remained absent though called for several

times and had left the Court, an order was passed on application

(Exh.48) and when the witness was called, the learned trial Judge,

instead of taking steps to insist upon the presence of the Advocate for

the accused, unfortunately chose to proceed further in the absence of

her Advocate and called upon the illiterate accused to cross-examine

the medical witness. The accused could not cross-examine the

medical witness. Thus, the accused was denied of the necessary

assistance of a Counsel to cross-examine an important witness whose

evidence was crucial to judge the nature of crime and the alternative

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probabilities if brought on record, could have helped the accused to

defend her case effectively in a murder trial. The accused facing

serious Sessions trial is entitled to insist upon the presence of his/her

Advocate who was engaged during the trial. Under Section 303 of

the Code of Criminal Procedure, the accused is entitled to be

defended by an Advocate of his/her choice. Such an Advocate or

Counsel, who has accepted criminal brief, is bound to attend the

trial/proceedings as it is his professional duty towards his client to

defend his client. His absence from the Court without any just and

reasonable cause may be actionable as a professional misconduct.

The learned trial Judge can insist upon and ensure presence of the

Advocate representing the accused so as to complete the trial

according to law. The accused may be asked to engage another

Advocate if his Advocate, already engaged in the trial, is remaining

absent without notice to the client. If the accused is unable to engage

another Advocate of his/her choice to defend him/her in the trial, the

trial Court finding that the accused in a murder trial was

unrepresented by an Advocate of his/her choice, was under a legal

obligation under section 304 (1) Code of Criminal Procedure to

inquire with the accused as to whether he/she has sufficient means to

engage another Advocate to defend him/her or whether he/she

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wants the Court to provide an appropriate Advocate at the expense

of the State because he/she was facing a Sessions trial for serious

accusations involving the offences punishable with death or

imprisonment for life. Proceeding with a trial without making any

inquiry into the absence of an Advocate employed by the accused in a

serious murder case tantamounts to denial of effective and

substantial legal aid to the accused in that regard. The trial Court

ought to have ensured that, in the trial proceedings before the Court,

the accused must be dealt with justly and fairly by keeping in view

the cardinal principles that any accused of a serious crime is entitled

to a Counsel and legal advice which is necessary for his/her defence,

according to law. The accused is entitled to a fair trial. The right is so

precious that it cannot be denied in view of fundamental principles of

liberty and justice which lie at the substratum of our judicial system,

the necessity of Counsel is so vital and imperative in a murder trial

that the failure of the trial Court to make an effective appointment of

a counsel to cross-examine a Medical witness amounted to denial of

due process of law. Absence of fair and proper trial would be

violation of right of the accused under Section 303 of the Code of

Criminal Procedure and also fundamental principles of judicial

procedure on account of breach of mandatory provisions of Section

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304 of the Code of Criminal Procedure.

5. Having gone through the entire records of the trial Court

carefully, we feel that, the gravity of the offences and the possible

punishment with which the appellant may be sentenced in such a

case, are important factors to be borne in mind. Thus, having due

consideration to the appellant's right, the nature of the offence with

which she was charged and its gravity, in our opinion, the appellant

was denied the due process of law and the trial held against her was

contrary to the procedure prescribed under the provisions of the

Criminal Procedure Code since she was denied the right of

representation by a Counsel in the trial. We find that the appellant/

accused herein is an illiterate lady, but her statement under Section

313 of the Code of Criminal Procedure appears to have been

recorded by putting to her pre-formatted typed questions in English

language and the answers were recorded in the handwriting in

English language by obtaining her left hand thumb impression below

it adducing Certificate, dated 23-07-2008 as mentioned below :-

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                                           CERTIFICATE




                                                                                              

This is to certify that the statement of accused is taken in my presence and hearing and it contains full and true

account of statement made by him. (Emphasis ours)

(A.M. Vaidya)

A.S.J. Achalpur

6. Bearing in mind the fact that the accused is an illiterate lady,

the above Certificate exhibits non-application of mind on the part of

the learned trial Judge. Statement of the accused recorded under

Section 313 of the Code of Criminal Procedure must reflect a real

dialogue between the trial Judge and the accused. Learned trial

Judge is expected to put all the incriminating facts and

circumstances brought in the evidence on the record to the accused

probing and recording explanation in the words of the accused as far

as possible. It is important stage in the trial and cannot be a mere

empty formality or ritualistic exercise.

7. We are fortified in our conclusion by the view taken by three

Judges Bench of the Apex Court in the ruling in CRIMINAL APPEAL

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NO. 1091 OF 2006, Mohd. Hussain @ Julfikar Ali vs. The State

(Govt. of NCT) Delhi, decided on 31st August, 2012. The Hon'ble

Supreme Court made a reference to the relevant provisions of law as

under -

" 11. Article 21 of the Constitution provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. Speedy justice and

fair trial to a person accused of a crime are integral part of

Article 21; these are imperatives of the dispensation of justice. In every criminal trial, the procedure prescribed in the Code

has to be followed, the laws of evidence have to be adhered to and an effective opportunity to the accused to defend himself must be given. If an accused remains unrepresented by a

lawyer, the trial court has a duty to ensure that he is provided

with proper legal aid.

12. Article 22(1) of the Constitution provides that no person who is arrested shall be detained in custody without being informed of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal

practitioner of his choice.

13. Article 39A of the Constitution, inter-alia, articulates the policy that the State shall provide free legal aid by a suitable

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legislation or schemes to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or

other disabilities.

14. Section 303 of the Code confers a right upon any person accused of an offence before a criminal court to be defended by

a pleader of his choice.

15. Section 304 of the Code mandates legal aid to accused at State's expense in a trial before the Court of Session where the

accused is not represented by a pleader and where it appears to the court that the accused has not sufficient means to

engage a pleader."

It was observed further in Paras 41 and 42 thus :

"41. 'Speedy trial' and 'fair trial' to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused's right of fair trial. Unlike the accused's right of fair

trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal

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trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of

prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning

the accused's right to speedy trial have to be weighed vis-a-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an

accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social

impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in

favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of

prosecution and if the right of accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an

end. These principles must apply as well when the appeal

court is confronted with the question whether or not retrial of an accused should be ordered.

42. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the

accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of

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the appellate court such course becomes indispensable to avert failure of justice. Surely this power cannot be used to allow

the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial; it is continuation of the same

trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on

the facts and circumstances of each case for which no straitjacket formula can be formulated but the appeal court

must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek

protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked".

8. We are convinced that this is an exceptional case in which the

right of the appellant/accused to the fair trial and due process ought

to have been completely protected, but was not, in the trial Court. The

accused was not provided with the assistance of a Counsel of her

choice in a substantial and meaningful sense at the crucial stage of

trial when a medical witness was put to an examination-in-chief in the

trial Court in the absence of the Advocate representing the illiterate

accused. We expect the learned trial Judge to give an opportunity to

the Advocate representing the accused to cross-examine the medical

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witness whose evidence was closed without any cross-examination

done on behalf of the accused. We are also convinced that the

statement of accused under Section 313 of the Code of Criminal

Procedure was recorded in a routine manner as if to go through a

meaningless ritual or empty formality to be finished. In our opinion,

Section 313 of the Code obliged the trial Court to put all necessary

questions to the accused to enable the accused to explain any

incriminating circumstance appearing against her in the evidence

recorded. Section 313 of the Code is important provision and not to be

slurred over or demeaned, as has been done in this case. The answers

given by the accused may be taken into consideration in the trial if

they tends to show that she has committed any offence with reference

to the evidence led in the trial. In view of the above discussion, we

cannot sustain the judgment impugned and it must be reversed and

the matter ought to be remanded to the trial Court with a specific

direction that the trial Court shall assist the accused by employing a

State Counsel from the Legal Aid Panel, if the accused is unable to

employ a counsel of her own choice to cross-examine the recalled

medical witness/witnesses to be examined in the trial at the instance

of the prosecution or defence. The trial Court may exercise power

under Section 311 of the Code of Criminal Procedure to recall and re-

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examine any witness to record additional evidence other than already

recorded, if it deems it essential for just decision of the case and

furthermore, the accused shall have a full opportunity to adduce

defence evidence, to give submissions and to give statement, if any, to

explain the circumstances appearing against her in evidence. Since we

are remanding the matter for fresh disposal of the case accordingly, we

clarify that we have not expressed any opinion regarding the merits of

the case. We expect the trial Court to ensure that the accused facing

the serious murder trial shall not remain undefended at any stage of

the trial. In the circumstances, the following order is passed.

ORDER

In view of the discussion made hereinabove, we allow

the instant Criminal Appeal. The conviction and sentence

imposed by the learned Ad-hoc Additional Sessions Judge,

Achalpur, District Amravati in Sessions Trial No. 42 of 2005

dated 11- 08-2008 is set aside.

The case is remanded to the trial Court for fresh

disposal in accordance with law and in the light of the

observations made by us as above.

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Since the incident is of the year 2004, we direct the

trial Court to conclude the trial as expeditiously as possible,

at any rate within an outer limit of three months from the

date the judgment and Order passed by us is communicated

to the trial Court. The learned trial Judge shall report

disposal of the case to this Court.

To ensure early completion of the trial, the

appellant/accused shall remain as an undertrial prisoner till

the completion of the trial.

                                 JUDGE                         JUDGE
      
   



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