Patna High Court
Subodh Rai vs The State Of Bihar on 13 May, 2025
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad, Ashok Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL APPEAL (DB) No.546 of 2023
Arising Out of PS. Case No.-103 Year-2017 Thana- GAIGHAT District- Muzaffarpur
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Subodh Rai, Son of Late Asharfi Rai, R/o Mohammadpur Sura, P.S. -
Gaighat, Distt. - Muzaffarpur
... ... Appellant
Versus
The State of Bihar
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Patanjali Rishi, Advocate
For the Respondent/s : Mr. Bipin Kumar, Addl.P.P.
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CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
and
HONOURABLE MR. JUSTICE ASHOK KUMAR PANDEY
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD)
Date : 13-05-2025
Heard Mr. Patanjali Rishi, learned counsel for the
appellant and Mr. Bipin Kumar, learned Additional Public
Prosecutor for the State.
2. This appeal has been preferred for setting aside the
judgment of conviction dated 27.04.2022 passed by the
learned Sessions Judge, Muzaffarpur (hereinafter referred to
as the 'learned trial court') in Sessions Trial No. 465 of
2017 arising out of Gaighat P.S. Case No. 103 of 2017
registered under Section 302 of Indian Penal Code (in short
'IPC').
3. By the judgment under appeal, the learned trial
Patna High Court CR. APP (DB) No.546 of 2023 dt.13-05-2025
2/11
court has convicted the appellant for the offence under
Section 302 IPC and thereafter passed the order dated
06.05.2022
on the point of sentence whereby the appellant
has been ordered to undergo imprisonment for life and to
pay a fine of Rs. 10,000/- and in default, imprisonment of
six months for the offence punishable under Section 302 of
the IPC has been awarded.
Prosecution Case
4. The prosecution case is based on the written
application dated 21.05.2017 (Ext.-2) submitted by one
Rishi Kumar, who is the son of the appellant. In his written
application, he alleged as under:-
"An altercation took place between the husband and
wife in the morning hours. At that time, Subodh Rai became
silent in front of all people and went towards the western
side of his house where the Dalan was situated. He further
alleged that Krishna Devi went in the said Dalan to feed the
cattle and there Subodh Rai was sitting and on finding her
alone, he assaulted her with brick, as a result of which, she
died on the spot, accordingly, Gaighat P.S. Case No. 103 of
2017 was registered".
Patna High Court CR. APP (DB) No.546 of 2023 dt.13-05-2025
5. On the basis of the said written information, a
formal F.I.R. bearing Gaighat P.S. Case No. 103 of 2017
was registered under Section 302 IPC. Investigation
followed and charge sheet was submitted against the sole
accused. The learned Magistrate took cognizance of the
offence under Section 302 IPC and committed the records
to the court of Sessions.
6. The accused-appellant was explained the charges,
he denied the same and claimed to be tried. Accordingly,
the charges were framed against him under Section 302
IPC.
7. It appears from the records that the prosecution
examined as many as eight witnesses and exhibited six
documents which have been marked as Ext.-1 to Ext.-6.
8. The list of the witnesses and the exhibits marked
on behalf of the prosecution are provided hereunder in a
tabular form:-
List of Prosecution Witnesses
P.W.-1 Pawan Kumar Rai
P.W.-2 Ajay Kumar
P.W.-3 Braj Kishore Rai @ Saheb Rai
P.W.-4 Rishi Kumar (Informant)
Patna High Court CR. APP (DB) No.546 of 2023 dt.13-05-2025
P.W.-5 Arun Rai
P.W.-6 Dr. Mahmood Alam Ansari
P.W.-7 Ravindra Paswan (I.O.)
P.W.-8 Prem Kishore Yadav(another I.O.)
List of Exhibits
Exhibit '1' Signature of Ajay Kumar on
the inquest report
Exhibit '2' Written application
Exhibit '3' Postmortem report
Exhibit '4' Inquest report
Exhibit '5' Endorsement on the written
application
Exhibit '6' Formal F.I.R.
Findings of the Learned Trial Court
9. The learned trial court having analyzed the
evidences on the record held the appellant guilty for the
offence under Section 302 IPC and ordered him to undergo
life imprisonment and to pay a fine of Rs. 10,000/-, as
stated hereinabove.
Submissions on behalf of the appellant
10. Mr. Patanjali Rishi, learned counsel for the
appellant submits that the impugned judgment and order are
liable to be set aside and the matter is required to be
Patna High Court CR. APP (DB) No.546 of 2023 dt.13-05-2025
remitted to the learned trial court for a simple reason that
the learned trial court despite having noticed that the
appellant was unable to engage a lawyer in his defence, did
not appoint an experienced lawyer from the Bar and the
learned trial court did not appreciate that the principle of
fair trial is embodied under Articles 21 and 22 of the
Constitution of India, hence, it must be followed in the
matter of administration of criminal law justice.
11. Learned counsel for the appellant submits that
when the trial began and PW.-1 came for examination and
the examination-in-chief of PW.-1 was recorded, the learned
trial court noted in the deposition sheet that the accused has
not engaged any lawyer to do pairvi on his behalf.
12. The learned court, however, recorded that the
accused has neither engaged any lawyer for his pairvi nor
he has requested for appointment of a lawyer to do his
pairvi. The trial court further noted that the accused has
taken a stand that he would himself cross-examine the
witness. It is submitted that at this stage the learned trial
court was required to remind itself of its duty to ensure that
a free legal aid to be provided to the appellant and that
Patna High Court CR. APP (DB) No.546 of 2023 dt.13-05-2025
would only be in consonance with the mandate of Article
39A of the Constitution of India read with Section 304 of
the Code of Criminal Procedure.
13. It is submitted that even though the appellant
claimed that he will cross-examine the prosecution
witnesses himself, the trial court was required to appreciate
the competence of the appellant in defending himself. The
appellant was not a law graduate and he did not know the
niceties of law, hence, he could not have framed appropriate
question which could have been put to the prosecution
witnesses in course of cross-examination.
14. Learned counsel has relied upon a judgment of
the Hon'ble Supreme Court in case of Ramanand alias
Nandlal Bharti v. State of Uttar Pradesh reported in
(2023)16 SCC 510.
Submissions on behalf of the State
15. Mr. Bipin Kumar, learned Additional Public
Prosecutor for the State has taken a fair stand in course of
the hearing. Learned Additional Public Prosecutor has
submitted that it is clearly seen from the pattern of cross-
examination by the appellant that he was not aware of the
Patna High Court CR. APP (DB) No.546 of 2023 dt.13-05-2025
law and the intricacies of requirement of law in course of
the cross-examination.
16. In such circumstances, it is submitted that the
learned trial court would have done it's best by appointing an
experienced lawyer from the Bar to provide legal aid to the
appellant.
Consideration
17. We have heard learned counsel for the appellant
and learned Additional Public Prosecutor for the State as
also perused the trial court records. We have noticed from
the deposition of the prosecution witnesses that the
appellant ventured to cross-examine them on his own and
he could hardly frame any question in his defence so as to
raise any doubt over the veracity of the prosecution
evidence. This duty could have been performed only by a
competent lawyer, who would have been well aware of the
legal provisions. In the case of Ramanand alias Nandlal
Bharti v. State of Uttar Pradesh reported in (2023) 16
SCC 510, the Hon'ble Supreme Court has observed in
paragraphs '126' to '130' which are as under:-
126. It is by far now well settled for a legal
proposition that it is the duty of the court to see and
Patna High Court CR. APP (DB) No.546 of 2023 dt.13-05-2025
ensure that an accused put on a criminal trial is
effectively represented by a defence counsel, and in
the event on account of indigence, poverty or
illiteracy or any other disabling factor, he is not able
to engage a counsel of his choice, it becomes the
duty of the court to provide him appropriate and
meaningful legal aid at the State expense. What is
meant by the duty of the State to ensure a fair
defence to an accused is not the employment of a
defence counsel for namesake. It has to be the
provision of a counsel who defends the accused
diligently to the best of his abilities. While the
quality of the defence or the calibre of the counsel
would not militate against the guarantee to a fair
trial sanctioned by Articles 21 and 22, respectively,
of the Constitution, a threshold level of competence
and due diligence in the discharge of his duties as a
defence counsel would certainly be the
constitutional guaranteed expectation. The presence
of counsel on record means effective, genuine and
faithful presence and not a mere farcical, sham or a
virtual presence that is illusory, if not fraudulent.
127. Article 39-A of the Constitution speaks about
free legal aid which reads thus:
"39-A. Equal justice and free legal aid.--The
State shall secure that the operation of the legal
system promotes justice, on a basis of equal
opportunity, and shall, in particular, provide free
legal aid, by suitable legislation or schemes or in any
other way, to ensure that opportunities for securing
justice are not denied to any citizen by reason of
economic or other disabilities."
128. Section 304CrPC refers to legal aid to the
accused at State expenses in certain cases which reads
thus:
"304. Legal aid to accused at State expense in
certain cases.--(1) Where, in a trial before the
Court of Session, 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, the Court shall assign a pleader for his
defence at the expense of the State.
(2) The High Court may, with the previous
approval of the State Government, make rule
Patna High Court CR. APP (DB) No.546 of 2023 dt.13-05-2025
providing for--
(a) the mode of selecting pleaders for
defence under sub-section (1);
(b) the facilities to be allowed to such
pleaders by the Courts;
(c) the fee payable to such pleaders by
the Government, and generally, for carrying
out the purposes of sub-section (1).
(3) The State Government may, by notification,
direct that, as from such date as may be specified in
the notification, the provisions of sub-sections (1)
and (2) shall apply in relation to any class of trials
before other Courts in the State as they apply in
relation to trials before the Courts of Session."
129. Under Section 9 of the Legal Services
Authorities Act, 1987, the District Legal Services
Authorities are constituted for every District in the
State to exercise powers and perform functions
conferred on, or assigned to, the District Authority
under the said Act.
130. This Court in para 13 of the judgment in
Kishore Chand v. State of H.P. [Kishore Chand v.
State of H.P.43 , held thus : (SCC p. 297)
"13. Though Article 39-A of the Constitution
provides fundamental rights to equal justice and free
legal aid and though the State provides Amicus
Curiae to defend the indigent accused, he would be
meted out with unequal defence if, as is common
knowledge the youngster from the bar who has
either a little experience or no experience is assigned
to defend him. It is high time that Senior Counsel
practising in the court concerned, volunteer to
defend such indigent accused as a part of their
professional duty. If these remedial steps are taken
and an honest and objective investigation is done, it
will enhance a sense of confidence of the public in
the investigating agency."
18. This Court finds that the learned Sessions Judge while
conducting the present trial could not appreciate with sufficient
43 (1991) 1 SCC 286 : 1991 SCC (Cri) 172
Patna High Court CR. APP (DB) No.546 of 2023 dt.13-05-2025
seriousness be need to appoint an experienced counsel at the
cost of the State to defend the appellant.
19. In paragraph '133' of the judgment in the case of
Ramanand (supra) the Hon'ble Supreme Court has reminded
the learned trial courts across the country in the following
words:-
"133. This case provides us an opportunity to remind the
learned District and Sessions Judges across the country
conducting Sessions trials, more particularly relating to
serious offences involving severe sentences, to appoint
experienced lawyers who had conducted such cases in the
past. It is desirable that in such cases Senior Advocate
practising in the trial court shall be requested to conduct the
case himself or herself on behalf of the undefended accused
or at least provide good guidance to the advocate who is
appointed as Amicus Curiae or an advocate from the legal
aid panel to defend the case of the accused persons. Then
only the effective and meaningful legal aid would be said to
have been provided to the accused."
20. In the kind of submissions made before us and the
fact that we have experienced on going through the pattern of
cross-examination of the prosecution witnesses, we are of the
considered opinion that the learned Sessions Judge has
committed an error by not providing an experienced defence
counsel to the appellant. We, therefore, set aside the impugned
judgment and order.
21. The records are remitted back to the learned trial
court for taking a fresh steps in accordance with law to procure
the appearance of the prosecution witnesses and ensure that they
Patna High Court CR. APP (DB) No.546 of 2023 dt.13-05-2025
are cross-examined by a competent lawyer, who will be
appointed by the court to defend the accused-appellant in course
of trial. If required, an experienced lawyer from the panel of
Legal Services Authority shall be made available to the
appellant.
22. Learned counsel for the appellant has undertaken
that the appellant shall provide full cooperation to the defence
counsel, who will be appointed by the court.
23. This appeal is allowed to the extent indicated
hereinabove.
24. Let a copy of this judgment together with the records
of the trial court be sent down to the court of learned Sessions
Judge, Muzaffarpur immediately.
(Rajeev Ranjan Prasad, J)
(Ashok Kumar Pandey, J)
Jagdish/lata/-
AFR/NAFR
CAV DATE
Uploading Date 16.05.2025
Transmission Date 16.05.2025
