Against The Judgment And Order Of ... vs The State Of Jharkhand
2022 Latest Caselaw 2397 Jhar

                Criminal Appeal (D.B.) No. 320 of 2021
   [Against the judgment and order of conviction and sentence dated
   04.10.2019 passed by Sri Sanjay Kumar Singh No. 1, learned Additional
   Sessions Judge-IV, Hazaribag in Sessions Trial No. 242A/2009, arising
   out of Chauparan P.S. Case No. 110/2006, corresponding to G.R. Case
   No. 1880/2006]
                                 ...........

Vijay Ganjhu, S/o Deoki Ganjhu, R/o Mauza-Pathalgada, P.S. & P.O.- Chauparan, District- Hazaribag. ... ... Appellant Versus The State of Jharkhand ... ... Respondent ...........

For the Appellant : Mr. Awnish Shankar, Advocate For the State : Mr. Manoj Kr. Mishra, A.P.P.

PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY HON'BLE MR. JUSTICE AMBUJ NATH ...........

07/04.07.2022 Heard Mr. Awnish Shankar, learned counsel for the appellant and Mr. Manoj Kr. Mishra, learned A.P.P. for the State.

2. This appeal is directed against the judgment and order of conviction and sentence dated 04.10.2019 passed by Sri Sanjay Kumar Singh No. 1, learned Additional Sessions Judge- IV, Hazaribag in Sessions Trial No. 242A/2009, arising out of Chauparan P.S. Case No. 110/2006, corresponding to G.R. Case No. 1880/2006, whereby and whereunder the appellant has been convicted for the offence u/s 302/34 of the Indian Penal Code and has been sentenced to undergo imprisonment for life along with a fine of Rs. 50,000/- and in default of payment of fine to further undergo R.I. for 02 years.

3. The fardbeyan of Rohan Ganjhu was recorded on 09.07.2006 in which he has stated that on 08.07.2006 at about 7:50 P.M. his brother namely Khiru Ganjhu was sitting at the door of Chaman Ganjhu. The informant was proceeding towards his house when the accused Dhela Ganjhu, Vijay Ganjhu (appellant) Deoki Ganjhu, Binod Bhuiyan and Sitan Bhuiyan had arrived with Lathi and Danda in their hands. It has been alleged the Dhela Ganjhu pointedly referred to Khiru Ghanju and said that whenever they do some work it is opposed by him. At this all the accused persons started a concerted assault upon Khiru Ganjhu and when the informant tried to intervene he was

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threatened of dire consequences if he came forward. The informant fled away from the place of occurrence and after assembling the villagers had come back and had seen Khiru Ganjhu hanging from a Mahuwa tree. The accused persons in the meantime had fled away.

4. Based on the aforesaid allegations Chauparan P.S. Case No. 110/2006 was instituted for the offence u/s 302/34 of the I.P.C. against Dhela Ganjhu, Vijay Ganjhu, Deoki Ganjhu, Binod Bhuiyan and Sitan Bhuiyan. On conclusion of investigation charge-sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions. Charge was framed u/s 302/34 of the I.P.C. against the accused Vijay Ganjhu which was read over and explained to him in Hindi to which he pleaded not guilty and claimed to be tried.

5. The prosecution has examined as many as seven witnesses in support of its case.

6. It has been submitted by Mr. Awnish Shankar, learned counsel for the appellant that the trial itself has vitiated on account of the fact that none of the prosecution witnesses were cross-examined by the defence. It has been submitted that though the learned trial court was aware about the non-representation of the appellant through a counsel but even then it had proceeded with the trial and convicted and sentenced the appellant for the charge u/s 302/34 of the Indian Penal Code.

7. Learned A.P.P. has opposed the submission advanced by the learned counsel for the appellant.

8. We have perused the Lower Court Records. It appears that charge-sheet was submitted against the appellant showing him as an absconder. All the processes for apprehending the appellant were exhausted and thereafter vide order dated 22.05.2017 permanent warrant of arrest was issued against the appellant and the record was directed to be deposited in the record room. The order sheet further reveals that the appellant was finally

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arrested and was remanded to judicial custody on 08.02.2019. On 11.04.2019 charge was framed against the appellant and the counsel representing him was heard on the point of charge. His counsel had also moved an application for bail which however was rejected on 12.06.2019. On 13.09.2019 the prosecution had produced three witnesses but no defence counsel had appeared as such all the three witnesses after their examination-in-chief were discharged. On 16.09.2019 two more witnesses were examined by the prosecution and were discharged since the defence counsel did not appear to cross-examine them. P.W.6 had been examined and cross-examined and discharged as per the order dated 30.09.2019 but the evidence of P.W.6 reveals that no one had appeared on behalf of the defence to cross-examine this witness and therefore what has been noted in the order dated 30.09.2019 is apparently an error of record. A similar error has crept up in the order dated 01.10.2019 with respect to the examination of P.W.7. After recording the statement of the accused u/s 313 Cr.P.C. the case was fixed for 03.10.2019. On that date none had as usual turned up on behalf of the defence when the case was called out and the learned trial court after hearing the argument of the prosecution had fixed the case on 04.10.2019 for delivering judgment.

9. The above mentioned sequential narration leads to a solitary conclusion that post the framing of charge the appellant was not represented by a counsel. The order sheets do not disclose any efforts having been made by the learned trial court to appoint a counsel from the panel of District Legal Services Authority but the cause title of the judgment dated 04.10.2019 signifies the name of Sri Krishna Gopal Mishra as the counsel of the appellant and in the body of the judgment reference has been made about a defence panel advocate having been provided to the appellant.

10. In the case of "Mohd. Sukur Ali versus State of Assam" reported in (2011) 4 SCC 729, the effect of the absence of a counsel for an accused and the remedial measures to be taken by

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the concerned court was considered and it was held as follows:

"5. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the "heart and soul" of the fundamental rights.

17. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the court should appoint a counsel who is practising on the criminal side as amicus curiae and decide the case after fixing another date and hearing him. If on the next date of hearing the counsel, who ought to have appeared on the previous date but did not appear, now appears, but cannot show sufficient cause for his non-appearance on the earlier date, then he will be precluded from appearing and arguing the case on behalf of the accused. But, in such a situation, it is open to the accused to either engage another counsel or the court may proceed with the hearing of the case by the counsel appointed as amicus curiae."

11. In the case of "Mohd. Hussain @ Zulfikar Ali versus State (Government of NCT of Delhi)" reported in (2012) 2 SCC 584, it was held as follows:

"13. It will, thus, be seen that the trial court did not think it proper to appoint any counsel to defend the appellant-accused, when the counsel engaged by him did not appear at the commencement of the trial nor at the time of recording of the evidence of the prosecution witnesses. The accused did not have the aid of the counsel in any real sense, although, he was as much entitled to such aid during the period of trial. The record indicates, as I have already noticed, that the appointment of the learned counsel and her appearance during the last stages of the

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trial was rather pro forma than active. It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case, to confront the witnesses against him not only on facts but also to discredit the witness by showing that his testimony-in-chief was untrue and unbiased.

14. The purpose of cross-examination of a witness has been succinctly explained by the Constitution Bench of this Court in Kartar Singh v. State of Punjab: (SCC p. 686, para 278) "278. Section 137 of the Evidence Act defines what cross-examination means and Sections 139 and 145 speak of the mode of cross-examination with reference to the documents as well as oral evidence. It is the jurisprudence of law that cross-examination is an acid-test of the truthfulness of the statement made by a witness on oath in examination-in- chief, the objects of which are:

(1) to destroy or weaken the evidentiary value of the witness of his adversary; (2) to elicit facts in favour of the cross- examining lawyer's client from the mouth of the witness of the adversary party;

(3) to show that the witness is unworthy of belief by impeaching the credit of the said witness;

and the questions to be addressed in the course of cross-examination are to test his veracity; to discover who he is and what is his position in life; and to shake his credit by injuring his character."

15. The aforesaid view is reiterated by this Court in Jayendra Vishnu Thakur v. State of Maharashtra wherein it is observed: (SCC p. 117, para 24) "24. A right to cross-examine a witness, apart from being a natural right is a statutory right. Section 137 of the Evidence Act provides for examination-in-chief, cross-examination and re-examination. Section 138 of the Evidence Act confers a right on the adverse party to cross- examine a witness who had been examined in chief, subject of course to expression of his desire to the said effect. But indisputably such an opportunity is to be granted. An accused has not only a valuable right to represent himself, he has also the right to be informed thereabout. If an exception is to be carved out, the statute

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must say so expressly or the same must be capable of being inferred by necessary implication. There are statutes like the Extradition Act, 1962 which excludes taking of evidence vis-à-vis opinion."

16. In my view, every person, therefore, has a right to a fair trial by a competent court in the spirit of the right to life and personal liberty. The object and purpose of providing competent legal aid to undefended and unrepresented accused persons are to see that the accused gets free and fair, just and reasonable trial of the charge in a criminal case.

23. The prompt disposition of criminal cases is to be commended and encouraged. But in reaching that result, the accused charged with a serious offence must not be stripped of his valuable right of a fair and impartial trial. To do that, would be negation of concept of due process of law, regardless of the merits of the appeal. The Criminal Procedure Code provides that in all criminal prosecutions, the accused has a right to have the assistance of a counsel and the Criminal Procedure Code also requires the court in all criminal cases, where the accused is unable to engage counsel, to appoint a counsel for him at the expenses of the State. Howsoever guilty the appellant upon the inquiry might have been, he is until convicted, presumed to be innocent. It was the duty of the court, having these cases in charge, to see that he is denied no necessary incident of a fair trial."

12. It is, therefore, a settled principle of law that to ensure a fair trial the accused has to be appropriately represented. The basic tenets of a criminal trial would falter if a different approach is undertaken by the learned trial court. It is ordained by law to ensure that an accused is represented by a counsel in a criminal trial in order to prevent miscarriage of justice.

13. The facts of the present case as pointed out earlier are peculiar. The learned trial court could not have been oblivious to the accused remaining unrepresented through out the trial. We are conscious of the fact that the trial courts are encumbered with ever burgeoning number of cases but efforts at a quicker disposal cannot be at the cost of shutting out the window of legal representation of an accused. The panel of District Legal Services

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Authority should have been activated by the learned trial court and if on doing so the accused continued to remain unrepresented another counsel could have been appointed. The learned trial court seems to have done neither as would be manifest from the order sheets and the same has occasioned a failure of justice. The impugned judgment and order of conviction and sentence dated 04.10.2019 is flawed and cannot be sustained.

14. The question which now needs to be answered is the consequence which may follow when the judgment under challenge is itself held to be flawed due to the accused having remain unrepresented through out the trial. We may draw inspiration from the case of "Mohd. Hussain @ Zulfikar Ali versus State (Government of NCT of Delhi)" in Criminal Appeal No. 1091 of 2006, wherein the Hon'ble Supreme Court was considering a similar issue. We have referred to this case earlier which was decided by a two Judges Bench but the matter was referred to a Larger Bench and the point of reference was "whether the matter requires to be remanded for a denovo trial in accordance with law or not ?" The reference was answered in the following manner:

"42. Insofar as the present case is concerned, it has been concurrently held by the two Judges who heard the criminal appeal that the appellant was denied due process of law and the trial held against him was contrary to the procedure prescribed under the provisions of the Code since he was denied right of representation by counsel in the trial. The Judges differed on the course to be followed after holding that the trial against the appellant was flawed.

43. We have to consider now, whether the matter requires to be remanded for a de novo trial in the facts and the circumstances of the present case. The incident is of 1997. It occurred in a public transport bus when that bus was carrying passengers and stopped at a bus-stand. The moment the bus stopped an explosion took place inside the bus that ultimately resulted in death of four persons and injury to twenty-four persons. The nature of the incident and the circumstances in which it occurred speak volume about the very grave nature of offence. As a matter of fact, the appellant has been charged

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for the offences under Sections 302/307 IPC and Section 3 and, in the alternative, Section 4(b) of the ES Act. It is true that the appellant has been in jail since 9-3-1998 and it is more than 14 years since he was arrested and he has passed through mental agony of death sentence and the retrial at this distance of time shall prolong the culmination of the criminal case but the question is whether these factors are sufficient for the appellant's acquittal and dismissal of indictment. We think not.

44. It cannot be ignored that the offences with which the appellant has been charged are of very serious nature and if the prosecution succeeds and the appellant is convicted under Section 302 IPC on retrial, the sentence could be death or life imprisonment. Section 302 IPC authorises the court to punish the offender of murder with death or life imprisonment. Gravity of the offences and the criminality with which the appellant is charged are important factors that need to be kept in mind, though it is a fact that in the first instance the accused has been denied due process. While having due consideration to the appellant right, the nature of the offence and its gravity, the impact of crime on the society, more particularly the crime that has shaken the public and resulted in death of four persons in a public transport bus cannot be ignored and overlooked. It is desirable that punishment should follow offence as closely as possible. In an extremely serious criminal case of the exceptional nature like the present one, it would occasion in failure of justice if the prosecution is not taken to the logical conclusion. Justice is supreme. The retrial of the appellant, in our opinion, in the facts and circumstances, is indispensable. It is imperative that justice is secured after providing the appellant with the legal practitioner if he does not engage a lawyer of his choice.

47. In what we have discussed above we answer the reference by holding that the matter requires to be remanded for a de novo trial. The Additional Sessions Judge shall proceed with the trial of the appellant in Sessions Case No. 122 of 1998 from the stage of prosecution evidence and shall further ensure that the trial is concluded as expeditiously as may be possible and in no case later than three months from the date of communication of this order."

15. The charge against the appellant is of committing

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the murder of the brother of the informant in association with the other accused persons. The appellant had absconded for more than 12 years and was arrested on 08.02.2019 and since then he is in judicial custody. Justice demands that an impartial trial be held and for achieving such object it would be necessary that a lawyer be appointed by the learned trial court to represent the appellant.

16. We therefore, set aside the judgment and order of conviction and sentence dated 04.10.2019 passed by Sri Sanjay Kumar Singh No. 1, learned Additional Sessions Judge-IV, Hazaribag in Sessions Trial No. 242A/2009, arising out of Chauparan P.S. Case No. 110/2006, corresponding to G.R. Case No. 1880/2006 and remand the matter to the learned trial court who shall conduct a denovo trial. The learned trial court shall ensure that the appellant is represented by a lawyer and at no stage of the trial the appellant shall be permitted to go unrepresented. If in case, a counsel appointed does not attend the proceedings or loses interest in the trial it would be incumbent upon the learned trial judge to adopt corrective measures by taking initiative in appointing another counsel if need be from the panel of District Legal Services Authority. The learned trial judge shall also take all possible steps in order to conclude the trial at the earliest.

17. Since the learned trial court is to conduct a denovo trial as directed above, let the Lower Court Records be sent back immediately and forthwith to the concerned trial court.

18. Let a copy of this judgment be sent to the Member Secretary, JHALSA as well as to the Secretary, DLSA, Hazaribag.

(Rongon Mukhopadhyay, J.)

(Ambuj Nath, J.)

High Court of Jharkhand at Ranchi Dated, the 4th day of July, 2022.

Alok/NAFR