Delhi High Court
State vs Sanjay Kumar Valmiki on 21 February, 2014
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
DEATH SENTENCE REF. No. 3 of 2012
Reserved on: February 6, 2014
Decision on: February 21, 2014
STATE ..... Appellant
Through: Ms. Richa Kapoor, APP.
Inspector Bijender Singh, PS: Maurya Enclave.
versus
SANJAY KUMAR VALMIKI ..... Respondent
Through: Mr. Bhupesh Narula, Advocate.
AND
CRIMINAL APPEAL No. 1146 of 2012 and
CRL.MB. No. 1772 of 2012 Crl. M.A No. 561 of 2013
SANJAY KUMAR VALMIKI ..... Appellant
Through: Mr. Bhupesh Narula, Advocate.
versus
STATE ..... Respondent
Through: Ms. Richa Kapoor, APP.
Inspector Bijender Singh, PS: Maurya Enclave.
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
HON'BLE MS. JUSTICE MUKTA GUPTA
JUDGMENT
21.02.2014
Dr. S. Muralidhar, J:
1. By judgment dated 11th May 2012 in Session Case No. 166 of 2011, the
Additional Sessions Judge-II (North-West), Rohini Courts, Delhi convicted
Sanjay Kumar Valmiki of the offences under Sections 302, 363, 376 (2)(f),
376 and 201 IPC for kidnapping the prosecutrix/deceased 'U', aged about
eight years, from the lawful guardianship of her parents with an intention to
rape her; committed rape on her and thereafter hammered her to death with a
steel rod; and then caused the disappearance of evidence of the commission
of the offence by washing his clothes and the weapon of offence and
concealing the body of the deceased. By an order on sentence dated 31st May
2012, the learned Additional Sessions Judge ('ASJ') sentenced Sanjay Kumar
Valmiki to death for the offence punishable under Section 302 IPC and
imposed a fine of Rs.1 lakh, and in default of the payment of the fine directed
him to undergo simple imprisonment ('SI') for a period of three months and
further directed the fine amount to be given to the family of the deceased as
compensation under Section 357 of Code of Criminal Procedure ('CrPC').
The accused was further sentenced to undergo Rigorous Imprisonment ('RI')
for five years and a fine of Rs.5,000 for the offence punishable under Section
363 IPC and in default of the payment of the fine, to undergo SI for a period
of one month. He was sentenced to RI for life i.e. the rest of his life and a
fine of Rs.10,000 for offences punishable under Sections 376(2) (f) IPC and
in default of the payment of the fine, to undergo SI for two months with the
clarification that he shall not be considered for a grant of remission. Finally,
he was sentenced to RI for three years and a fine of Rs.1,000 for the offence
punishable under Section 201 IPC and in default of the payment of the fine,
to undergo SI for a period of 15 days.
2. Death Sentence Reference No. 3 of 2012 has been preferred by the State
seeking confirmation of the death sentence awarded to the accused.
Independently, the accused has filed Criminal Appeal No. 1146 of 2012.
3. The case of the prosecution is that on 11th July 2012, the deceased
prosecutrix, a female child 'U', aged about 8 years, was left along with her
younger siblings in the park at KU Block behind the North Delhi Power
Limited ('NDPL') office, Pitampura by her mother Sunita (PW-21) who used
to do domestic work. When PW-21 returned at around 4 pm and did not find
'U', she informed her husband Shyam Paswan (PW-15) who then lodged a
missing report with the Police Station (P.S.) at Maurya Enclave.
4. On 13th July 2011 at around 6.15 pm, information was received at the P.S.
through the police control room (PCR) that the dead body of the prosecutrix
was lying in the electric panel room (also called the switch gear room) at the
NDPL office, KU Block, Pitampura. ASI Raju Yadav (PW-30) and the
Station House Officer ('SHO') located the dead body which was found head
down in one corner near the switch gear room with her panty pulled down to
her thighs. The body was in a highly decomposed condition. PW-15 was then
called up to identify the dead body. The crime team led by SI Devender (PW-
7) reached the spot and photographs of the crime scene were taken by
Constable Dalbir (PW-2).
5. A child witness, Master Saroj (PW-25), aged about 10-11 years, informed
his uncle Dalip Paswan (PW-14) on 14th July 2011, and then the police on the
same date between 8.45 and 9 am, that he saw the accused with the deceased
at the site of the crime around the time when the deceased went missing. He
further stated that he had heard screams and cries of a child coming from
inside the switch gear room and when he peeped inside the room he saw the
accused who asked him to run away.
6. The accused was arrested at approximately 7.35 pm on 14th July 2011. He
is stated to have been working as a sweeper with the NDPL. The accused is
stated to have made a confessional statement during the interrogation
disclosing the location where he had hidden the clothes he was wearing while
committing the offence and the weapon used to inflict the fatal injuries on the
child. His medical examination was conducted at 11.45 pm.
7. The police team that conducted the search, seizure and arrest comprised of
Constable Sohanbir (PW-29), Inspector Satyender Gosain, the Investigating
Officer ('IO') (PW-31) and ASI Raju Yadav (PW-30). The Security Guard
Kuldeep Singh (PW-27) joined the investigation at around 9 pm when the
accused led the police team to the switch gear room to show how he had
committed the crime. The exhibits were handed over to HC Anand Swaroop
(PW-5) who in turn handed them over to the IO. The Senior Scientific
Officer of the Forensic Science Laboratory ('FSL') Ms. Manisha Upadhyaya
(PW-18) received from Constable Bijender (PW-9) four sealed parcels
containing the victim's clothes and the underwear of the accused. She
discovered the semen stains of the accused on his underwear and blood stains
of the victim. The Forensic Expert (DNA Fingerprints) Ms. Shashi Bala
(PW-19) received eight sealed parcels from Constable Sandeep Kumar (PW-
8) which included the cotton wool swab taken from the victim and she found
that the seminal stains therein were those of the accused. Draftsman SI
Mahesh Kumar (PW-1) prepared a site plan on 3rd September 2011 at the
behest of the IO (PW-31).
8. On 11th January 2012 the arguments on charge were heard without the
counsel for the accused being present. On that date, an order framing charges
was passed. The learned ASJ directed that Head Constable Radhey Kishan,
MHCM (PW-12), PWs-14 to 22 and PW-26 would be examined by way of
affidavits under Section 296 Cr PC. Their affidavits were directed to be filed
by 29th February 2012 with an advance copy to the defence counsel. The case
was listed on 7th March 2012 for recording the evidence of the prosecution,
i.e. PWs-1, 3, 4, 23, 24 and 25. The order sheet dated 11th January 2011
reveals that later on the learned ASJ warned the defence counsel, when he
appeared, to be regular for the sake of his client.
9. On 7th March 2012, none was present for the accused. The accused present
in Court expressed his inability to afford a counsel. Thereupon, an Advocate
was instantly appointed by the learned ASJ as amicus curiae for the accused.
However, instead of postponing the trial, the learned ASJ proceeded with the
recording of the evidence of the prosecution witnesses.
10. 7th March 2012 was also the date on which the FSL report was made
available to the trial Court. The learned ASJ recorded that the said report was
not disputed by the accused. The FSL report is a scientific document and if it
was received on that very day, it was obviously required to be gone through
by the defence counsel. The accused could hardly be expected to study it
himself and form an opinion. The amicus curiae appointed for him on that
very day obviously would not have been aware of the entire facts of the case
much less would he have been able to get familiar with the record of the case.
The question of his forming an opinion as regards the FSL report on that very
day obviously did not arise. The learned ASJ was oblivious to the above
difficulties and proceeded to call the FSL witnesses on the next date of
hearing.
11. Another significant feature of the proceedings on 7th March 2012 was that
the learned ASJ proceeded with the recording of the evidence of as many as
17 prosecution witnesses. These included a key witness Dalip Paswan (PW-
14) (the uncle of the child witness PW-25 who purportedly corroborated the
latter's testimony). The complete list of witnesses examined on 7th March
2012, as presented by the learned APP in a tabular form, reads thus:
PW Name of the Nature of examination No. Whether
No. witness of cross-
pages examined
PW1 SI Mahesh Formal witness on 1 Yes
Kumar affidavit who has
proved the preparation
of scaled site plan
PW2 Ct. Dalbir Formal witness on 1 Yes
affidavit and a member
of the Crime Team who
has proved having taken
the photographs of the
spot of the incident
PW3 Ct. Satish Formal witness on 1 No
affidavit who has
proved Inspector
Satyender Gosain that
he went to BSA
Hospital mortuary
where doctor handed
over to him a total of
nine exhibits relating to
the deceased which he
in turn handed over to
Inspector Satyender
Gosain who seized the
same.
PW4 Ct. Rajbir Formal witness on 1 Yes
affidavit who has
proved that on
12.7.2011 at about 9:10
AM Duty Officer
W/HC Usha gave him
an original Teharir
along with an FIR to
deliver to ASI Raju
Yadav and accordingly
he delivered the same to
ASI Raju Yadav at KU
Block Park, Pitampura.
According to him, ASI
Raju Yadav recorded
the statement of the
complainant at 10 AM
and he remained with
ASI Raju Yadav during
the search for the
missing girl.
PW5 HC Anand Formal witness on 1 Yes
Swaroop affidavit who has
proved having got
conducted the medical
examination of the
accused Sanjay Kumar.
The Doctor handed over
to him a sealed box
containing exhibits/
samples, sample seal
and MLC of the
accused Sanjay which
he in turn produced
before the Investigating
Officer who seized the
same.
PW6 W/HC Usha Formal witness on 1 Yes
affidavit who has
proved having recorded
the FIR and her
endorsement on the
rukka
PW7 SI Formal witness on 1 Yes
Devender affidavit who has
proved the Crime Team
Report which he handed
over to ASI Raju
Yadav.
PW8 Ct. Sandeep Formal witness on 1 No
Kumar affidavit who has
proved that on
24.8.2011 he took seven
exhibits and two sample
seals from the MHCM
and deposited the same
in the FSL Rohini.
PW9 Ct. Bijender Formal witness on 1 Yes
affidavit who has
proved that on
19.8.2011 on the
directions of Inspector
Satyender Gosain he
received four exhibits
and one sample seal
duly sealed vide RC
No. 88/21/11 and seven
exhibits and two sample
seals duly sealed vide
RC No. 89/21/11 from
the MHCM and
deposited the four
exhibits and sample
seals in FSL, Rohini.
He has further proved
that on 23.8.2011 he
took an exhibit along
with a request letter and
went to mortuary, BSA
Hospital for the issue of
a sample seal where Dr.
J.V.Kiran handed over
to him a sealed
envelope which he (the
witness) handed over to
the Investigating
Officer who seized the
same.
PW10 W/Ct. Formal witness on 1 No
Archana affidavit who has
proved that on
13.7.2011 while posted
in PCR, PHQ
information was
received from mobile
no. 9818100432
regarding a dead body
of a small girl aged
about 10 years lying in
KU Block, Ramlila
Ground, NDPL Sub
Station Pitampura, on
which she completed
the PCR form and
passed on the
information.
PW11 HC Formal witness on 1 No
Hoshiyar affidavit who has
Singh proved that on
13.7.2011 while
working as Duty
Officer at Police Station
Maurya Enclave at
about 6:15 PM the
Wireless Operator
informed him that
information was
received that a dead
body of a girl aged
about 10 years was
lying in NDPL Sub-
station pursuant to
which information he
recorded vide DD No.
31A
PW12 HC Radhey Formal witness on 3 Yes
Kishan affidavit who has
proved the various
entries made in the
Register No.19 and 21.
PW13 Mahesh Formal witness i.e. 1 No
Paswan relative of the deceased
who has identified the
dead body of the child
which is not disputed.
PW14 Dalip Public witness/owner of 4 Yes
Paswan the tea stall outside the
NDPL Office (not an
eye witness nor witness
of last seen) only
proved that he was
running a Tea Stall
outside the NDPL
Office where his
nephew Master Saroj
i.e. witness of last seen.
PW15 Shyam Public witness/father of 3 Yes
Pawan the deceased
PW16 Dr. J.V. Doctor from BSA 2 Yes
Kiran Hospital who has given
the opinion regarding
the weapon of offence.
PW17 Dr. Doctor from BSA 2 Yes
Florence Hospital who has
Almeida examined the accused
and has given his
opinion.
12. It is seen from the above table that the following witnesses were not
cross-examined by the amicus curiae on that day: Constable Satish (PW-3)
who had joined the investigation; Constable Sandeep (PW-8) police witness
who had joined the investigation; Woman Constable Archana (PW-10), the
PCR official who had filled up the PCR form; Head Constable Hoshiyar
Singh (PW-11) the Duty Officer/DD writer; Mahesh Paswan (PW-13), a
relative of the deceased who identified her body and Dr. Florence Almeida
(PW-17) from BSA Hospital who had examined the accused and had given
his opinion. Also, although the other witnesses in the above list are shown to
have been cross-examined, a careful perusal of the transcript of evidence
recorded shows that their cross-examination was, at best, cursory.
13. The Court notes with some degree of concern that on a single day the
evidence of as many as 17 prosecution witnesses was sought to be recorded
by the learned ASJ without ensuring that the amicus curiae appointed by the
Court on that very day had sufficient time to prepare the case and to conduct
a proper cross-examination of the said witnesses. What is surprising is that in
the entire impugned judgment, the learned ASJ does not refer to the fact of
the defence counsel not being present in the Court on 7th March 2012 and the
learned ASJ, therefore, having to appoint an amicus curiae who incidentally
was a lawyer enrolled only six years earlier. The learned ASJ does not appear
to have even paused to reflect on whether it was humanly possible for any
advocate to instantly get acquainted with a case involving a grave and serious
charge of rape and murder on a single day and to acquaint himself with the
entire record of the case so as to be even able to ask relevant questions to the
prosecution witnesses by way of cross-examination.
14. The unusual haste with which the learned ASJ proceeded is all the more
surprising since the law on the subject is well settled. A similar approach
adopted by a Fast Track Court (FTC) in the Best Bakery Case was frowned
upon by the Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat
(2004 Crl LJ 2855. There, the FTC failed to halt the trial despite the
prosecution witnesses, including the eye witness Zahira Sheikh, turning
hostile in quick succession leading to a total collapse of the trial and the
acquittal of all the accused. The Supreme Court had no hesitation in declaring
mistrial and directing a re-trial to take place before an appropriate court in
Maharashtra. The Supreme Court observed:
"35. .....The concept of fair trial entails familiar triangulation of
interests of the accused, the victim and the society and it is the
community that acts through the State and prosecuting agencies.
Interests of society are not to be treated completely with disdain and as
persona non grata. Courts have always been considered to have an
overriding duty to maintain public confidence in the administration of
justice -- often referred to as the duty to vindicate and uphold the
"majesty of the law". Due administration of justice has always been
viewed as a continuous process, not confined to determination of the
particular case, protecting its ability to function as a court of law in the
future as in the case before it. If a criminal court is to be an effective
instrument in dispensing justice, the Presiding Judge must cease to be a
spectator and a mere recording machine by becoming a participant in
the trial evincing intelligence, active interest and elicit all relevant
materials necessary for reaching the correct conclusion, to find out the
truth, and administer justice with fairness and impartiality both to the
parties and to the community it serves. Courts administering criminal
justice cannot turn a blind eye to vexatious or oppressive conduct that
has occurred in relation to proceedings, even if a fair trial is still
possible, except at the risk of undermining the fair name and standing
of the judges as impartial and independent adjudicators.
36. The principles of rule of law and due process are closely linked
with human rights protection. Such rights can be protected effectively
when a citizen has recourse to the courts of law. It has to be
unmistakably understood that a trial which is primarily aimed at
ascertaining the truth has to be fair to all concerned. There can be no
analytical, all-comprehensive or exhaustive definition of the concept of
a fair trial, and it may have to be determined in seemingly infinite
variety of actual situations with the ultimate object in mind viz.
whether something that was done or said either before or at the trial
deprived the quality of fairness to a degree where a miscarriage of
justice has resulted. It will not be correct to say that it is only the
accused who must be fairly dealt with. That would be turning a
Nelson's eye to the needs of the society at large and the victims or their
family members and relatives. Each one has an inbuilt right to be dealt
with fairly in a criminal trial. Denial of a fair trial is as much injustice
to the accused as is to the victim and the society. Fair trial obviously
would mean a trial before an impartial judge, a fair prosecutor and
atmosphere of judicial calm. Fair trial means a trial in which bias or
prejudice for or against the accused, the witnesses, or the cause which
is being tried is eliminated. If the witnesses get threatened or are forced
to give false evidence that also would not result in a fair trial. The
failure to hear material witnesses is certainly denial of fair trial."
15.1 Recently in Mohd. Hussain v. State (Govt. of NCT of Delhi) (2012) 2
SCC 584 (hereafter 'Mohd. Hussain-I'), the Supreme Court was faced with a
similar situation in a case that arose from a judgment delivered by a Sessions
Court in Delhi. Again it was a serious case involving a bomb blast on a blue
line bus causing the death of 4 persons and injuries to 24 others. In that case
the Supreme Court on going through the record of the proceedings and the
order passed by the Sessions Court found that the accused was initially
assisted by a counsel appointed by the learned Sessions Judge. However,
midway through the case the said counsel "disappeared from the scene i.e.
before the conclusion of the trial". The accused was not asked whether he
would be able to engage a counsel or wished to have a counsel appointed for
him. In that case out of the 65 witnesses examined by the prosecution the
evidence of 56 of them was recorded without providing counsel to the
accused. None of the said 56 witnesses were examined by the accused either.
Only thereafter, was another counsel appointed to defend the accused and the
evidence of witnesses 57 to 65 were recorded in the presence of the newly
appointed counsel, who for some reason thought it fit not to cross-examine
any of those witnesses.
15.2 The two learned Judges who comprised the Bench in Mohd. Hussain-I
agreed that there had been a grave miscarriage of justice as a result of the
accused not having the services of a counsel throughout the trial. However,
the two learned judges differed on what the consequential order should be.
Justice H.L. Dattu noted that the right of access to justice was a fundamental
right as explained in several earlier decisions of the Supreme Court including
M. H. Hoskot v. State of Maharashtra (1978) 3 SCC 544, Mohd. Sukur Ali
v. State of Assam (2011) 4 SCC 729 and Hussainara Khatoon v. State of
Bihar (1980) 1 SCC 98. Justice Dattu concluded that the "accused was not
provided the assistance of a counsel in a substantial and meaningful sense"
and that to hold otherwise "would be simply to ignore actualities and also
would be to ignore the fundamental postulates, already adverted to."
15.3 Concurring with the above view, Justice C.K. Prasad in Mohd.
Hussain-I observed:
"51. In my opinion, the right of a person charged with crime
to have the services of a lawyer is fundamental and essential
to fair trial. The right to be defended by a legal practitioner,
flowing from Article 22(1) of the Constitution has further
been fortified by the introduction of the Directive Principles
of State Policy embodied in Article 39A of the Constitution
by the 42nd Amendment Act of 1976 and enactment of Sub-
Section (1) of Section 304 of the Code of Criminal
Procedure. Legal assistance to a poor person facing trial
whose life and personal liberty is in jeopardy is mandated not
only by the Constitution and the Code of Criminal Procedure
but also by International Covenants and Human Rights
Declarations. If an accused too poor to afford a lawyer is to
go through the trial without legal assistance, such a trial
cannot be regarded as reasonable, fair and just. The right to
be heard in criminal trial would be inconsequential and of no
avail if within itself it does not include right to be heard
through Counsel.
52. One cannot lose sight of the fact that even intelligent and
educated men, not trained in law, have more than often no
skill in the science of law if charged with crime. Such an
accused not only lacks both the skill and knowledge
adequately to prepare his defence but many a time loses his
equilibrium in face of the charge. A guiding hand of Counsel
at every step in the proceeding is needed for fair trial. If it is
true of men of intelligence, how much true is it of the
ignorant and the illiterate or those of lower intellect an
accused without the lawyer faces the danger of conviction
because he does not know how to establish his innocence."
15.4 Justice Dattu was of the view that the case should be remanded to the
trial Court with a specific direction that the trial Court would assist the
accused in employing a State counsel before the commencement of the trial
till its conclusion. Justice Prasad was of the view that "after such a distance
of time it shall be travesty of justice to direct for the Appellant's de novo
trial". As a result of the above difference of opinion, the matter was placed
before a larger Bench of three learned Judges of the Supreme Court.
15.5 In their unanimous verdict in Mohd. Hussain v. State (Govt. of NCT of
Delhi) (2012) 9 SCC 408 (hereafter Mohd. Hussain-II'), the three-Judge
Bench held that since the offences with which the accused had been charged
were of a serious nature, the prosecution had to be taken to its logical
conclusion. If there had to be no failure of justice "the retrial of the Appellant
in the facts and circumstances is indispensable". It was held that "it is
imperative that justice is secured after providing the Appellant with a legal
practitioner if he does not engage a lawyer of his choice".
15.6 On the aspect of the direction for a retrial, the Supreme Court in Mohd.
Hussain-II referred to the following observations in Satyajit Banerjee v.
State of West Bengal (2005) 1 SCC 115:
"25. Since strong reliance has been placed on Best Bakery
case (Gujarat riots case) it is necessary to record a note of
caution. That was an extraordinary case in which this Court
was convinced that the entire prosecution machinery was
trying to shield the accused i.e. the rioters. It was also found
that the entire trial was a farce. The witnesses were terrified
and intimidated to keep them away from the court. It is in the
aforesaid extraordinary circumstances that the court not only
directed a de novo trial of the whole case but made further
directions for appointment of the new prosecutor with due
consultation of the victims. Retrial was directed to be held
out of the State of Gujarat.
26. The law laid down in Best Bakery case in the aforesaid
extraordinary circumstances, cannot be applied to all cases
against the established principles of criminal jurisprudence.
Direction for retrial should not be made in all or every case
where acquittal of accused is for want of adequate or reliable
evidence. In Best Bakery case the first trial was found to be a
farce and is described as "mock trial". Therefore, the
direction for retrial was in fact, for a real trial. Such
extraordinary situation alone can justify the directions as
made by this Court in Best Bakery case.
15.7 The three-Judge Bench in Mohd. Hussain-II then held as under:
"41. 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 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."
16. In Mohd. Ajmal Amir Kasab v. State of Maharashtra AIR 2012 SC
3565, the Supreme Court reiterated the non-derogability of the fundamental
right of an accused facing criminal trial for grave charges to be represented
by counsel at every stage of the trial. The following passages from the said
decision are relevant:
"476.....It is common knowledge, of which we take judicial notice,
that there is a great hiatus between what the law stipulates and the
realities on the ground in the enforcement of the law. The abuses of the
provisions of the Code of Criminal Procedure are perhaps the most
subversive of the right to life and personal liberty, the most precious
right under the Constitution, and the human rights of an individual.
Access to a lawyer is, therefore, imperative to ensure compliance with
statutory provisions, which are of high standards in themselves and
which, if duly complied with, will leave no room for any violation of
Constitutional provisions or human rights abuses.
477. In any case, we find that the issue stands settled long ago and is
no longer open to a debate. More than three decades ago, in
Hussainara Khatoon (IV) v. Home Secretary, State of Bihar (1980) 1
SCC 98, this Court referring to Article 39-A, then newly added to the
Constitution, said that the article emphasised that free legal aid was an
unalienable element of a "reasonable, fair and just" procedure, for
without it a person suffering from economic or other disabilities would
be deprived from securing justice. In paragraph 7 of the Judgment the
Court observed and directed as under:
"....The right to free legal services is, therefore, clearly an
essential ingredient of "reasonable, fair and just", procedure for
a person accused of an offence and it must be held implicit in the
guarantee of Article 21. This is a 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 and the State is under a mandate to
provide a lawyer to an accused person if the circumstances of
the case and the needs of justice so require, provided of course
the accused person does not object to the provision of such
lawyer. We would, therefore, direct that on the next remand
dates, when the undertrial prisoners, charged with bailable
offences, are produced before the Magistrates, the State
Government should provide them a lawyer at its own cost for the
purpose of making an application for bail, provided that no
objection is raised to such lawyer on behalf of such under-trial
prisoners and if any application for bail is made, the Magistrates
should dispose of the same in accordance with the broad outlines
set out by us in our Judgment dated February 12, 1979. The
State Government will report to the High Court of Patna its
compliance with this direction within a period of six weeks from
today."
478. Two years later, in Khatri (II) relating to the infamous case of
blinding of prisoners in Bihar, this Court reiterated that the right to free
legal aid is an essential ingredient of due process, which is implicit in
the guarantee of Article 21 of the Constitution.
.......
481. The resounding words of the Court in Khatri (II) are equally, if
not more, relevant today than when they were first pronounced. In
Khatri (II) the Court also alluded to the reasons for the urgent need of
the accused to access a lawyer, these being the indigence and illiteracy
of the vast majority of Indians accused of crimes.
482. As noted in Khatri (II) as far back as in 1981, a person arrested
needs a lawyer at the stage of his first production before the magistrate,
to resist remand to police or jail custody and to apply for bail. He
would need a lawyer when the chargesheet is submitted and the
magistrate applies his mind to the chargesheet with a view to
determine the future course of proceedings. He would need a lawyer at
the stage of framing of charges against him and he would, of course,
need a lawyer to defend him in trial.
483. To deal with one terrorist, we cannot take away the right given to
the indigent and under-privileged people of this country by this Court
thirty one (31) years ago.
484. We, therefore, have no hesitation in holding that the right to
access to legal aid, to consult and to be defended by a legal
practitioner, arises when a person arrested in connection with a
cognizable offence is first produced before a magistrate. We,
accordingly, hold that it is the duty and obligation of the magistrate
before whom a person accused of committing a cognizable offence is
first produced to make him fully aware that it is his right to consult and
be defended by a legal practitioner and, in case he has no means to
engage a lawyer of his choice, that one would be provided to him from
legal aid at the expense of the State. The right flows from Articles 21
and 22(1) of the Constitution and needs to be strictly enforced. We,
accordingly, direct all the magistrates in the country to faithfully
discharge the aforesaid duty and obligation and further make it clear
that any failure to fully discharge the duty would amount to dereliction
in duty and would make the concerned magistrate liable to
departmental proceedings."
17. The above decisions make it abundantly clear that the right of an accused
to a fair hearing may be vitiated by an "overhasty, stage-managed, tailored
and partisan trial". What has also been repeatedly emphasised is that
providing an accused with the services of a lawyer is not an empty formality.
The accused has a right "to have the guiding hand of the counsel at every step
of the proceeding". In the present case, the failure by the learned trial Court
to ensure that the accused was duly represented by a counsel even at the stage
of the framing of charges was a serious infraction of his statutory and
constitutional rights of access to justice.
18. After the extraordinary haste displayed by the trial Court in recording the
evidence of as many as 17 witnesses on one day i.e. 7th March 2012, the next
date was fixed as 26th March 2012 when the evidence of 11 more witnesses
was recorded. Four of those witnesses were not cross-examined. As regards
certain key witnesses i.e. PW-25, the child witness, PW-21, the mother of the
deceased, PWs-18 and 19 who conducted the Forensic and DNA test
respectively, PW-23 who conducted the post-mortem, PW-22 at whose
instance the body of the deceased was found and PW-24 who found the body,
the transcript of their cross-examination shows that the amicus curiae was
unable to be fully prepared. It is obvious that even at that stage, i.e. less than
twenty days after his appointment, he was yet to come to grips with the case.
By 26th March 2012 as many as 28 prosecution witnesses had already been
examined and discharged. The next date of hearing was 2nd April 2012 which
was less than one week thereafter. Again three witnesses were examined and
discharged. These witnesses included the IOs PW-30, PW-31 and PW-29.
Within a fortnight, on 17th April 2012, the statement of the accused was
recorded under Section 313 CrPC. On 2nd May 2012, spot inspection was
carried out and on 11th May 2012 the trial Court delivered a 166-page
judgment convicting the accused.
19. The Court fails to understand why the learned trial Court was in such a
tearing hurry to complete the entire trial without giving learned amicus
curiae for the accused sufficient time to prepare himself and to conduct a
proper trial. It must be remembered that the more serious the crime the
greater the need to ensure that there is no compromise whatsoever on the fair
trial procedures. Otherwise the constitutional guarantee enshrined in Article
21 of a just, fair and reasonable procedure established by law, would be
rendered illusory. The manner in which the trial has been conducted in the
present case by the learned trial Judge leaves no room for doubt that there has
been a serious infraction of the fundamental right of the accused to a fair
trial. It has, resulted in a grave miscarriage of justice and for that very reason
the impugned judgment convicting the accused and the consequential order
on sentence awarding him capital punishment cannot be sustained in law.
20. An application, Crl. M.A No. 561 of 2013, has been filed by the accused
under Section 391 CrPC praying for the recall of the prosecution witnesses
and to be given further opportunity for their cross-examination. A detailed
reply has been filed to the said application by the State. This Court has heard
the submissions of Mr. Bhupesh Narula, learned counsel for the Appellant,
assigned to the Appellant by the Delhi High Court Legal Services Committee
and Ms. Richa Kapoor, learned APP for the State. Ms. Kapoor, while not
denying that an opportunity ought to be given to the accused to cross-
examine the witnesses, sought to categorise the prosecution witnesses into
those whose cross-examination had taken place in the trial Court and those
who had not been cross-examined.
21. However, the Court finds on going through the transcript of evidence,
that it is not possible to make such a distinction for more than one reason.
On 17th March 2012 when 17 prosecution witnesses were examined and
discharged it must not have been possible for the counsel for the accused to
even get familiar with the matter since he was appointed on that very date by
the trial Court. Whatever cross-examination was done, therefore, cannot be
said to be by a counsel who was in full grasp of the matter. Also it is possible
that the answers given by witnesses who were examined and discharged may
have had a bearing on the cross-examination of the other witnesses. It is
difficult at this stage to assess whether the failure of the counsel for the
accused to have a proper opportunity to examine the 17 prosecution
witnesses on 7th March 2012 had an impact on the cross-examination of the
remaining prosecution witnesses on the subsequent dates.
22. As far as the consequential order is concerned, with the incident in
question taking place on 11th July 2011 and the accused being in custody
since 14th July 2011, it cannot be said that there has been any delay in the
case being processed and trial commencing. Further, the charge against the
accused is indeed a very serious one. As explained in Mohd. Hussain-II the
guiding factor for a retrial shall always be the demand of justice. It has
further been explained in the said decision that a retrial is not a second trial; it
is a continuation of the same trial and same prosecution. It has further been
emphasised that the Appellate Court must "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".
23. Accordingly the impugned judgment dated 11th May 2012 and the order
on sentence dated 31st May 2012 passed by the learned trial Court are hereby
set aside. Consequently, the Court remands the matter to the court of the
learned ASJ for a retrial. In other words, the trial will commence with the
examination and cross-examination of the prosecution witnesses. It is
clarified that the transcript of the evidence already recorded will remain and
can be referred to by counsel on either side. A proper opportunity shall be
given to learned counsel for the accused to cross-examine the prosecution
witnesses afresh. This would include the right of the prosecution to seek re-
examination of any of the witnesses in accordance with law. Further the right
of the accused to lead evidence in accordance with law is also reserved. Crl.
M.B. No. 1772 of 2012 for suspension of sentence is dismissed. However,
this will not preclude the accused from applying to the trial court for bail in
accordance with law.
24. The Court appoints Mr. Bhupesh Narula as amicus curiae for the accused
in the trial Court. The entire trial Court record will be returned forthwith
through a Special Messenger and be placed before the District and Sessions
Judge (D&SJ), Rohini Courts on 7th March 2014 for being assigned to the
Court of a learned ASJ other than the one who delivered the impugned
judgment of conviction and order on sentence which have been set aside by
this judgment. The accused will also be produced from judicial custody in
that Court. Mr. Bhupesh Narula will also remain present. It is made clear that
if the accused wishes to engage any other counsel of his own choice, then
that option will also be made available to him by the learned D&SJ. It is
hoped that the fresh trial process would be completed as expeditiously as
possible, and not later than six months from the aforementioned date and a
judgment delivered not later than a period of seven months thereafter.
25. Death Sentence Reference No. 3 of 2012 is accordingly answered and
Crl. A. No. 1146 of 2012 the appeal is allowed in the above terms but in the
circumstances with no order as to costs. Crl. M.A. No. 561 of 2013 is also
disposed of accordingly.
S. MURALIDHAR, J.
MUKTA GUPTA, J.
FEBRUARY 21, 2014
dn
