Ashok vs The State Of Uttar Pradesh

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 771 OF 2024

ASHOK …APPELLANT

VERSUS

STATE OF UTTAR PRADESH …RESPONDENT

JUDGMENT

ABHAY S. OKA, J.

FACTUAL ASPECT

1. This is a very unfortunate case. The victim of the

offence was ten years old at the time of the incident. On

27th May 2009, around 9.00 a.m., she and her first cousin,

PW-2, had gone to a pasture to graze her goats. The age of

PW-2 was seven years at that time. As the victim was Signature Not Verified

thirsty, she went near a tubewell cabin. The appellant- Digitally signed by ANITA MALHOTRA Date: 2024.12.02 17:51:13 IST Reason:

accused was working as an operator of the tubewell

Criminal Appeal No. 771 of 2024 Page 1 of 37 appointed by the owner of the tubewell. The victim

requested the appellant to provide drinking water. The

allegation of the prosecution is that, with evil intentions,

the appellant took her inside the cabin. He committed rape

on her and, after that, murdered her. According to the

prosecution’s case, PW-2 saw the appellant forcibly taking

the victim inside the cabin and raping her. By 11.00 a.m.,

PW-2 returned to PW-1, the victim's father. PW-1 was the

uncle of PW-2. After PW-2 narrated the story to PW-1, he

went to the tubewell cabin to find the victim and found the

dead body of the victim hidden in a haystack in that cabin.

On being questioned by PW-1, the appellant fled from the

spot and thereafter, PW-1 registered the First Information

Report.

2. The Trial Court, by judgment and order dated 24th

December 2012, convicted the appellant for the offences

punishable under Sections 376, 302 and 201 of the Indian

Penal Code (for short, ‘the IPC’). The Trial Court also

convicted the appellant under the provisions of Section

3(2)(v) of the Scheduled Castes and Scheduled Tribes

Criminal Appeal No. 771 of 2024 Page 2 of 37 (Prevention of Atrocities) Act, 1989 (for short, ‘the SCST

Act’). The Trial Court imposed capital punishment.

3. The High Court heard the reference under Section

366 of the Code of Criminal Procedure, 1973 (for short, ‘the

CrPC’) with an appeal preferred by the appellant. Though

the High Court confirmed the conviction, the death penalty

was set aside and the appellant was sentenced to undergo

life imprisonment for the remainder of his natural life

subject to the exercise of powers of grant of remission or

grant of clemency by the constitutional functionaries.

4. The present appeal is against the judgments

mentioned above. By order dated 20th May 2022, this

Court granted bail to the appellant after noting that he had

undergone actual incarceration for about 13 years. We

may note here that earlier, learned counsel Shri M Shoeb

Alam was appointed as amicus curiae to espouse the cause

of the appellant. After his designation as a senior advocate,

he continued to assist this Court. Shri Talha Abdul

Rahman, Advocate-on-Record, was appointed amicus

curiae to assist the learned senior counsel.

Criminal Appeal No. 771 of 2024 Page 3 of 37 SUBMISSIONS

5. The learned senior counsel appearing for the

appellant has taken us through the evidence of the

prosecution witnesses. Inviting our attention to evidence

of PW-1, Heera Lal, the father of the victim, he pointed out

that the version of the witness in his examination-in-chief

is based on what was reported to him by PW-2, the minor

witness. But, if we compare the depositions of PW-2 with

the examination-in-chief of PW-1, there is a significant

variance between the version of PW-2 as stated by PW-1

and what PW-2 stated in his examination-in-chief. He

pointed out that in the cross-examination, PW-1 has tried

to improve upon his version by trying to depose

consistently with the version of PW-2. Inviting our

attention to the proceedings before the Trial Court, he

submitted that when the examination-in-chief of the PW-1

was recorded, the appellant-accused was not represented

by any advocate. Therefore, the cross-examination was

adjourned to enable the appellant to engage an advocate.

Criminal Appeal No. 771 of 2024 Page 4 of 37 An advocate was appointed to espouse his cause after the

examination-in-chief of PW-1 was recorded. The appellant

was not represented by any advocate at the time of the

framing of the charge.

6. Coming to the depositions of PW-2, the learned senior

counsel for the appellant urged that considering the

difference between the version of PW-1 in his examination-

in-chief and cross-examination, the possibility of PW-2

being tutored cannot be ruled out. He submitted that

evidence of PW-2 was recorded two and half years after the

incident, and on the date of the recording of evidence, his

age was ten years. Possibly, he was tutored. He pointed

out that the evidence of PW-2 was not of sterling quality

and, therefore, cannot be the sole basis for the conviction,

especially when evidence regarding recovery is doubtful.

7. The learned senior counsel appearing for the

appellant as amicus curiae pointed out that the alleged

recovery of the victim’s slippers and underwear, at the

instance of the appellant, is highly doubtful as the place

and time of recovery have not been mentioned in the

Criminal Appeal No. 771 of 2024 Page 5 of 37 recovery memo. The prosecution did not examine the two

witnesses to the recovery memo. He pointed out that the

prosecution made no attempt to prove that blood stains on

the undergarments of the appellant were that of the blood

of the victim. No analysis was made.

8. More importantly, he submitted that the

incriminating circumstances brought on record in the

evidence against the appellant were not put to him in his

examination under Section 313 of the CrPC. Therefore, the

appellant's right of defence was seriously prejudiced. He

relied upon a decision of this Court in the case of Raj

Kumar v. State (NCT of Delhi)1.

9. Shri K. Parameshwar, the learned senior counsel

appearing for the State, supported the impugned

judgments. However, he has assisted us on the issue of

legal aid to the accused.

CONSIDERATION OF SUBMISSIONS

1 2023 SCC OnLine SC 609

Criminal Appeal No. 771 of 2024 Page 6 of 37

10. In the examination-in-chief, PW-1 stated that PW-2

witnessed the commission of rape and murder of the

victim. According to the witness, PW-2 told him that as the

door of the room was open while he was standing outside,

he saw the act of commission of rape and murder. He

deposed that after the PW-2 told him about the incident,

he rushed along with two or three other persons to the

spot. He found that the appellant was present there, and

he questioned the appellant. Thereafter, the appellant fled.

He tried to search for the victim. He found the dead body

of the victim under the haystack in the room. It is pertinent

to note that PW-2 had informed PW-1 that the appellant

was the offender. Though two to three persons

accompanied PW-1, he did not attempt to apprehend the

accused and take him to the police. The conduct of PW-1

of not apprehending the appellant, though he was present,

is unnatural.

11. Examination-in-chief of PW-1 was recorded by

learned Trial Judge on 11th May 2011. At the end of the

examination-in-chief, the learned Trial Judge recorded

Criminal Appeal No. 771 of 2024 Page 7 of 37 that the case was adjourned at the oral request of the

appellant to engage a counsel. Before the cross-

examination was recorded on 2nd July 2011, an advocate

was appointed to espouse the appellant's cause. The cross-

examination of PW-1 was recorded on 2nd July 2011 and

24th September 2011. The witness reiterated that he had

narrated the facts stated to him by PW-2.

12. As far as PW-2 is concerned, he was 10 years old

when his deposition was recorded. Many preliminary

questions were put to the witness by the learned Trial

Judge. After satisfying himself that the witness was able to

understand the questions and give a reply to the same, an

oath was administered to him. His version in the

examination-in-chief is that the appellant gave drinking

water to him and the victim. After drinking the water, when

they tried to leave, the appellant caught the victim from

behind, took off her undergarments, and the victim started

screaming. He did not depose that he had seen the

commission of rape and murder by the appellant. To this

extent, the version of PW-2, as told to PW-1, is entirely

Criminal Appeal No. 771 of 2024 Page 8 of 37 different. PW-1 claims that PW-2 reported to him that he

had seen the appellant committing rape and murder from

outside the cabin. PW-8, the investigating officer, stated

that he had recorded the Statement of PW-2 on 18th June

2009. Thus, there was a delay of 21 days in recording his

statement, though the FIR recorded that this witness had

seen the appellant committing the crime. There is some

dispute about whether the witness's statement recorded

under Section 161 of CrPC was produced with the charge

sheet. The learned senior counsel appointed as amicus

pointed out that it is not on the record of the Trial Court.

In the list of witnesses mentioned in the charge sheet, the

name of PW-2 has not been included. Therefore, for all the

reasons discussed above, the evidence of PW-2, the only

eyewitness, cannot be held to be of sterling quality. It is

unsafe to base conviction only on his testimony. Even

otherwise, taking his testimony as correct, the evidence of

the PW-2 can, at the highest, be the evidence of the last

seen together.

Criminal Appeal No. 771 of 2024 Page 9 of 37

13. Therefore, it is necessary to consider the other

circumstantial evidence. In this case, the recovery of the

victim’s slipper and underwear is alleged at the appellant's

instance. We have perused the recovery memo signed by

the circle officer and two independent witnesses. The

prosecution did not examine the two independent

witnesses. Though the date of recovery is mentioned in the

memo, the time and, most importantly, the place of

recovery are not mentioned. Therefore, it cannot be said

that pursuant to the statement made by the appellant, in

accordance with Section 27 of the Indian Evidence Act,

1972 (for short, ‘the Evidence Act’), the articles were found

at the place stated by the appellant. Hence, the

prosecution failed to prove that the recovery was from a

particular place. Thus, evidence of recovery will have to be

kept out of consideration. The recovery of the articles at

the instance of the appellant is a very important

circumstance in the chain of circumstances. It is not

proved. Hence, the appellant's guilt beyond reasonable

doubt has not been established.

Criminal Appeal No. 771 of 2024 Page 10 of 37 EXAMINATION OF THE APPELLANT UNDER SECTION 313 OF CR.P.C

14. Now, we come to the appellant's statement, recorded

per Section 313 of the CrPC. Only three questions were put

to the appellant. In the first question, the names of ten

prosecution witnesses were incorporated, and the only

question asked to the appellant was what he had to say

about the testimony of ten prosecution witnesses. In the

second question, all the documents produced by the

prosecution were referred, and a question was asked, what

the appellant has to say about the documents. In the third

question, it was put to the appellant that knowing the fact

that the victim belongs to a scheduled caste, he caused her

death after raping her and concealed her dead body, and

he was asked for his reaction to the same. What PW-1 and

PW-2 deposed against the appellant was not put to the

appellant. The contents of the incriminating documents

were not put to the appellant.

15. In the case of Raj Kumar1, in paragraph 17, this

Court has summarised the law laid down by this Court

Criminal Appeal No. 771 of 2024 Page 11 of 37 from time to time on Section 313 of the CrPC. Paragraph

17 reads thus:

“17. The law consistently laid down by this Court can be summarized as under:

(i) It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction;

(ii) The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence;

(iii) The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused;

(iv) The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused;

(v) If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect.

Criminal Appeal No. 771 of 2024 Page 12 of 37 However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident;

(vi) In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him;

and

(vii) In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under Section 313 of CrPC.

(viii) While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered.”

This Court based its decision on several decisions,

including the decision in the case of Shivaji Sahabrao

Bobade v. State of Maharashtra2. This Court relied

upon what was held in paragraph 16 of the said case.

Paragraph 16 of the said case reads thus:

“16. ……………. It is trite law, nevertheless fundamental, that the

2 (1973) 2 SCC 793

Criminal Appeal No. 771 of 2024 Page 13 of 37 prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the Court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the Court proceeds on the footing that though a grave irregularity has occurred as

Criminal Appeal No. 771 of 2024 Page 14 of 37 regards compliance with Section 342, CrPC, the omission has not been shown to have caused prejudice to the accused. In the present case, however, the High Court, though not the trial court has relied upon the presence of blood on the pants of the blood group of the deceased. We have not been shown what explanation the accused could have offered to this chemical finding particularly when we remember that his answer to the question regarding the human blood on the blade of the knife was “I do not know”. Counsel for the appellants could not make out any intelligent explanation and the “blood” testimony takes the crime closer to the accused. However, we are not inclined to rely over much on this evidentiary circumstance, although we should emphasise how this inadvertance of the trial court had led to a relevant fact being argued as unavailable to the prosecution. Great care is expected of Sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial the Judge may be a little fagged out.” (emphasis added)

Criminal Appeal No. 771 of 2024 Page 15 of 37 In a given case, the witnesses may have deposed in a

language not known to the accused. In such a case, if the

material circumstances appearing in evidence are not put

to the accused and explained to the accused, in a language

understood by him, it will cause prejudice to the accused.

16. In the present case, there is no doubt that material

circumstances appearing in evidence against the appellant

have not been put to him. The version of the main

prosecution witnesses PWs-1 and 2 was not put to him.

The stage of the accused leading defence evidence arises

only after his statement is recorded under Section 313 of

the CrPC. Unless all material circumstances appearing

against him in evidence are put to the accused, he cannot

decide whether he wants to lead any defence evidence. In

this case, even the date and place of the crime allegedly

committed by the appellant were not put to the appellant.

What was reportedly seen by PW-2 was not put to the

appellant in his examination. Therefore, the appellant was

prejudiced. Even assuming that failure to put material to

the appellant in his examination is an irregularity, the

Criminal Appeal No. 771 of 2024 Page 16 of 37 question is whether it can be cured by remanding the case

to the Trial Court.

17. The date of occurrence is of 27th May 2009. Thus, the

incident is fifteen and a half years old. After such a long

gap of fifteen and half years, it will be unjust if the

appellant is now told to explain the circumstances and

material specifically appearing against him in the

evidence. Moreover, the appellant had been incarcerated

for about twelve years and nine months before he was

released on bail. Therefore, considering the long passage

of time, there is no option but to hold that the defect

cannot be cured at this stage. Even assuming that the

evidence of PW-2 can be believed, the appellant is entitled

to acquittal on the ground of the failure to put

incriminating material to him in his examination under

Section 313 of the CrPC. We are surprised to note that

both the Trial Court and High Court have overlooked non-

compliance with the requirements of Section 313 of the

CrPC. Shockingly, the Trial Court imposed the death

penalty in a case which ought to have resulted in acquittal.

Criminal Appeal No. 771 of 2024 Page 17 of 37 Imposing capital punishment in such a case shocks the

conscience of this Court.

ROLE OF THE PUBLIC PROSECUTOR

18. Under sub-Section (5) of Section 313 of CrPC (sub-

Section (5) of Section 351 of Bharatiya Nagarik Suraksha

Sanhita, 2023), the Court is entitled to secure the

assistance of the public prosecutor and the advocate

representing the accused to prepare the questions to be

put in the examination under Section 313. A Public

Prosecutor has to play an active role in ensuring that every

trial is conducted in a fair manner and in accordance with

the law. Hence, it is the Public Prosecutor's duty to invite

the Court's attention to the requirement of putting all

incriminating material to the accused. Therefore, the

Public Prosecutor is under an obligation to remain present

when the examination of the accused is made to assist the

Court.

FAILURE TO PROVIDE LEGAL AID TO THE ACCUSED

19. After having perused the record of the case, we found

a very disturbing feature. It is about the failure of the State

Criminal Appeal No. 771 of 2024 Page 18 of 37 to provide timely legal aid to the appellant. The other issue

is about the quality of legal aid. Apart from provisions of

Article 21 and Article 39A of the Constitution of India, the

law on the issue of the right to legal aid has been evolved

by this Court through its landmark decisions. This Court's

first well-known decision is in the case of Hussainara

Khatoon (IV) v. Home Secy., State of Bihar3. In

Paragraph 7, this Court held thus:

“7. We may also refer to Article 39-A the fundamental constitutional directive which reads as follows:

“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.” (emphasis added) This article also emphasises that free legal service is an unalienable element of “reasonable, fair and just” procedure for without it a person suffering from

3 (1980) 1 SCC 98

Criminal Appeal No. 771 of 2024 Page 19 of 37 economic or other disabilities would be deprived of the opportunity for securing justice. 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 undertrial 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

Criminal Appeal No. 771 of 2024 Page 20 of 37 with this direction within a period of six weeks from today.” (emphasis added)

The second decision is in the case of M.H. Hoskot v. State

of Maharashtra4. In paragraphs 14 and 25 of the

decision, this Court held thus:

“14. The other ingredient of fair procedure to a prisoner, who has to seek his liberation through the court process is lawyer's services. Judicial justice, with procedural intricacies, legal submissions and critical examination of evidence, leans upon professional expertise; and a failure of equal justice under the law is on the cards where such supportive skill is absent for one side. Our judicature, moulded by Anglo-American models and our judicial process, engineered by kindred legal technology, compel the collaboration of lawyer-power for steering the wheels of equal justice under the law. Free legal services to the needy is part of the English criminal justice system. And the American jurist, Prof. Vance of Yale, sounded sense for India too when he said:

[ Justice and Reform, Earl Johnson, Jr. p. 11]

4 (1978) 3 SCC 544

Criminal Appeal No. 771 of 2024 Page 21 of 37 “What does it profit a poor and ignorant man that he is equal to his strong antagonist before the law if there is no one to inform him what the law is? Or that the courts are open to him on the same terms as to all other persons when he has not the wherewithal to pay the admission fee?” ” (emphasis added)

“25. If a prisoner sentenced to imprisonment, is virtually unable to exercise his constitutional and statutory right of appeal, inclusive of special leave to appeal, for want of legal assistance, there is implicit in the Court under Article 142, read with Articles 21 and 39-A of the Constitution, power to assign counsel for such imprisoned individual “for doing complete justice”. This is a necessary incident of the right of appeal conferred by the Code and allowed by Article 136 of the Constitution. The inference is inevitable that this is a State's duty and not Government's charity. Equally affirmative is the implication that while legal services must be free to the beneficiary, the lawyer himself has to be reasonably remunerated for his services. Surely, the profession has a public commitment to the people but mere philanthropy of its members yields short mileage in the long run. Their services,

Criminal Appeal No. 771 of 2024 Page 22 of 37 especially when they are on behalf of the State must be paid for. Naturally, the State concerned must pay a reasonable sum that the court may fix when assigning counsel to the prisoner. Of course, the court may judge the situation and consider from all angles whether it is necessary for the ends of justice to make available legal aid in the particular case.

In every country where free legal services are given it is not done in all cases but only where public justice suffers otherwise. That discretion resides in the court.” (emphasis added)

This issue was again dealt with by a Bench of three Judges

in the case of Anokhilal v. State of M.P.5. In this decision,

this Court revisited the law on this aspect. In paragraph

11, this Court relied upon the decision in the case of

Hussainara Khatoon (IV)3. In paragraph 20, this Court

summarised the principles laid down from time to time.

Paragraph 20 reads thus:

“20. The following principles, therefore, emerge from the decisions referred to hereinabove:

5

(2019) 20 SCC 196

Criminal Appeal No. 771 of 2024 Page 23 of 37

20.1. Article 39-A inserted by the 42nd Amendment to the Constitution, effected in the year 1977, provides for free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The statutory regime put in place including the enactment of the Legal Services Authorities Act, 1987 is designed to achieve the mandate of Article 39-A. 20.2. It has been well accepted that right to free legal services is an essential ingredient of “reasonable, fair and just” procedure for a person accused of an offence and it must be held implicit in the right guaranteed by Article 21. The extract from the decision of this Court in Best Bakery case [Zahira Habibulla H. Sheikh v. State of Gujarat, (2004) 4 SCC 158 : 2004 SCC (Cri) 999] (as quoted in the decision in Mohd.

Hussain [Mohd. Hussain v. State (NCT of Delhi), (2012) 9 SCC 408 : (2012) 3 SCC (Cri) 1139] ) emphasises that the object of criminal trial is to search for the truth and the trial is not a bout over technicalities and must be conducted in such manner as will protect the innocent and punish the guilty.

20.3. Even before insertion of Article 39- A in the Constitution, the decision of this Court in Bashira [Bashira v. State of U.P., (1969) 1 SCR 32 : AIR 1968 SC 1313 :

Criminal Appeal No. 771 of 2024 Page 24 of 37

1968 Cri LJ 1495] put the matter beyond any doubt and held that the time granted to the Amicus Curiae in that matter to prepare for the defence was completely insufficient and that the award of sentence of death resulted in deprivation of the life of the accused and was in breach of the procedure established by law.

20.4. The portion quoted in Bashira [Bashira v. State of U.P., (1969) 1 SCR 32 : AIR 1968 SC 1313 : 1968 Cri LJ 1495] from the judgment of the Andhra Pradesh High Court authored [Alla Nageswara Rao, In re, 1954 SCC OnLine AP 115 : AIR 1957 AP 505] by Subba Rao, J., the then Chief Justice of the High Court, stated with clarity that mere formal compliance of the rule under which sufficient time had to be given to the counsel to prepare for the defence would not carry out the object underlying the rule. It was further stated that the opportunity must be real where the counsel is given sufficient and adequate time to prepare.

20.5. In Bashira [Bashira v. State of U.P., (1969) 1 SCR 32 : AIR 1968 SC 1313 :

1968 Cri LJ 1495] as well as in Ambadas [Ambadas Laxman Shinde v. State of Maharashtra, (2018) 18 SCC 788 : (2019) 3 SCC (Cri) 452 : (2018) 14 Scale 730] , making substantial progress in the matter on the very day

Criminal Appeal No. 771 of 2024 Page 25 of 37 after a counsel was engaged as Amicus Curiae, was not accepted by this Court as compliance with “sufficient opportunity” to the counsel.” (emphasis added)

In paragraph 31, norms were laid down by this Court,

which read thus:

“31. Before we part, we must lay down certain norms so that the infirmities that we have noticed in the present matter are not repeated:

31.1. In all cases where there is a possibility of life sentence or death sentence, learned advocates who have put in minimum of 10 years' practice at the Bar alone be considered to be appointed as Amicus Curiae or through legal services to represent an accused. 31.2. In all matters dealt with by the High Court concerning confirmation of death sentence, Senior Advocates of the Court must first be considered to be appointed as Amicus Curiae.

31.3. Whenever any learned counsel is appointed as Amicus Curiae, some reasonable time may be provided to enable the counsel to prepare the matter.

There cannot be any hard-and-fast rule in that behalf. However, a minimum of seven

Criminal Appeal No. 771 of 2024 Page 26 of 37 days' time may normally be considered to be appropriate and adequate.

31.4. Any learned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the accused concerned. Such interactions may prove to be helpful as was noticed in Imtiyaz Ramzan Khan [Imtiyaz Ramzan Khan v. State of Maharashtra, (2018) 9 SCC 160 : (2018) 3 SCC (Cri) 721] .” (emphasis added)

20. Thus, the right to get legal aid is a fundamental right

of the accused, guaranteed by Article 21 of the

Constitution. Even under Section 303 of the CrPC, every

accused has a right to be defended by a pleader of his

choice. Section 304 provides for the grant of legal aid to an

accused free of costs. When an accused has either not

engaged an advocate or does not have sufficient means to

engage an advocate, it is the trial court's duty to inform

the accused of his right to obtain free legal aid, which is a

right covered by Article 21 of the Constitution of India.

Sub-Section (1) of Section 304 reads thus:

Criminal Appeal No. 771 of 2024 Page 27 of 37

“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) ………………………………………………..

(3)

………………………………..…………………” (emphasis added)

Sections 340 and 341 of the Bharatiya Nagarik Suraksha

Sanhita, 2023 (for short, ‘BNSS’) are the Sections which

correspond to Sections 303 and 304 of the CrPC. Thus,

under Section 304 of the CrPC, it is the duty of the Court

to ensure that a legal aid lawyer is appointed to espouse

the cause of the accused.

21. Now, we come back to the facts of the case. From the

proceedings of the Trial Court, it appears that when the

charges were framed on 8th September 2010, and when

the plea was recorded, the appellant was not represented

Criminal Appeal No. 771 of 2024 Page 28 of 37 by any advocate. Proceedings of 26th February 2011

record that though three witnesses of the prosecution were

present, the appellant was not represented by any

advocate. Therefore, assurance of the appellant has been

recorded that he would call his counsel on the next date.

On 11th May 2011, the examination-in-chief of PW-1 was

recorded. In the proceedings, the court recorded that the

appellant had not engaged any advocate on that day, and

he was not desirous of taking legal aid. However, on 8th

June 2011, an advocate was appointed to espouse his

cause. We find that on 20th July 2012, 4th October 2012,

1st November 2012, 7th November 2012, 9th November

2012 and 23rd November 2012, the advocate appointed as

amicus curiae for the appellant was absent. Applications

were required to be made by him to recall certain witnesses

as the cross-examination was closed due to his absence.

Thus, the evidence of more than one prosecution witness

was recorded in the absence of the legal aid advocate. On

7th November 2012, another advocate was appointed to

Criminal Appeal No. 771 of 2024 Page 29 of 37 espouse the appellant's cause. We find that a third

advocate conducted the cross-examination of PW-8.

22. At the stage of framing the charge, the appellant was

not represented by an advocate. From 8th June 2011, the

appellant never declined legal aid. We are surprised to note

that the examination-in-chief of PW-1 was allowed to be

recorded without giving legal aid counsel to the appellant,

who was not represented by an advocate. If the

examination-in-chief of a prosecution witness is recorded

in the absence of the advocate for the accused, a very

valuable right of objecting to the questions asked in

examination-in-chief is taken away. The accused is also

deprived of the right to object to leading questions. It will

not be appropriate to comment on the capabilities of the

two legal aid lawyers appointed in this case as they are not

parties before us. But suffice it to say that the cross-

examination of the witnesses was not up to the mark.

Some of the crucial questions that normally would have

been put in the cross-examination have not been asked.

Criminal Appeal No. 771 of 2024 Page 30 of 37 CONCLUDING PART

23. Our conclusions and directions regarding the role of

the Public Prosecutor and appointment of legal aid lawyers

are as follows:

a. It is the duty of the Court to ensure that proper

legal aid is provided to an accused;

b. When an accused is not represented by an

advocate, it is the duty of every Public

Prosecutor to point out to the Court the

requirement of providing him free legal aid.

The reason is that it is the duty of the Public

Prosecutor to ensure that the trial is conducted

fairly and lawfully;

c. Even if the Court is inclined to frame charges

or record examination-in-chief of the

prosecution witnesses in a case where the

accused has not engaged any advocate, it is

incumbent upon the Public Prosecutor to

request the Court not to proceed without

offering legal aid to the accused;

Criminal Appeal No. 771 of 2024 Page 31 of 37 d. It is the duty of the Public Prosecutor to assist

the Trial Court in recording the statement of

the accused under Section 313 of the CrPC. If

the Court omits to put any material

circumstance brought on record against the

accused, the Public Prosecutor must bring it to

the notice of the Court while the examination

of the accused is being recorded. He must

assist the Court in framing the questions to be

put to the accused. As it is the duty of the

Public Prosecutor to ensure that those who are

guilty of the commission of offence must be

punished, it is also his duty to ensure that

there are no infirmities in the conduct of the

trial which will cause prejudice to the accused;

e. An accused who is not represented by an

advocate is entitled to free legal aid at all

material stages starting from remand. Every

accused has the right to get legal aid, even to

file bail petitions;

Criminal Appeal No. 771 of 2024 Page 32 of 37 f. At all material stages, including the stage of

framing the charge, recording the evidence,

etc., it is the duty of the Court to make the

accused aware of his right to get free legal aid.

If the accused expresses that he needs legal

aid, the Trial Court must ensure that a legal

aid advocate is appointed to represent the

accused;

g. As held in the case of Anokhilal5, in all the

cases where there is a possibility of a life

sentence or death sentence, only those learned

advocates who have put in a minimum of ten

years of practice on the criminal side should be

considered to be appointed as amicus curiae or

as a legal aid advocate. Even in the cases not

covered by the categories mentioned above, the

accused is entitled to a legal aid advocate who

has good knowledge of the law and has an

experience of conducting trials on the criminal

side. It would be ideal if the Legal Services

Criminal Appeal No. 771 of 2024 Page 33 of 37 Authorities at all levels give proper training to

the newly appointed legal aid advocates not

only by conducting lectures but also by

allowing the newly appointed legal aid

advocates to work with senior members of the

Bar in a requisite number of trials;

h. The State Legal Services Authorities shall issue

directions to the Legal Services Authorities at

all levels to monitor the work of the legal aid

advocate and shall ensure that the legal aid

advocates attend the court regularly and

punctually when the cases entrusted to them

are fixed;

i. It is necessary to ensure that the same legal aid

advocate is continued throughout the trial

unless there are compelling reasons to do so or

unless the accused appoints an advocate of his

choice;

j. In the cases where the offences are of a very

serious nature and complicated legal and

Criminal Appeal No. 771 of 2024 Page 34 of 37 factual issues are involved, the Court, instead

of appointing an empanelled legal aid advocate,

may appoint a senior member of the Bar who

has a vast experience of conducting trials to

espouse the cause of the accused so that the

accused gets best possible legal assistance;

k. The right of the accused to defend himself in a

criminal trial is guaranteed by Article 21 of the

Constitution of India. He is entitled to a fair

trial. But if effective legal aid is not made

available to an accused who is unable to

engage an advocate, it will amount to

infringement of his fundamental rights

guaranteed by Article 21;

l. If legal aid is provided only for the sake of

providing it, it will serve no purpose. Legal aid

must be effective. Advocates appointed to

espouse the cause of the accused must have

good knowledge of criminal laws, law of

evidence and procedural laws apart from other

Criminal Appeal No. 771 of 2024 Page 35 of 37 important statutes. As there is a constitutional

right to legal aid, that right will be effective only

if the legal aid provided is of a good quality. If

the legal aid advocate provided to an accused

is not competent enough to conduct the trial

efficiently, the rights of the accused will be

violated.

24. For the reasons recorded earlier, the appeal is

allowed. The impugned judgments and orders are set

aside, and the appellant is acquitted of offences alleged

against him. The bail bonds of the appellant stand

cancelled.

25. A copy of this judgment shall be forwarded to all State

Legal Services Authorities to enable the authorities to take

necessary measures.

26. We record our appreciation for the able assistance

rendered to the Court by the learned senior counsel Shri

M.Shoeb Alam, appointed to espouse the cause of the

appellant. We must also record that the learned senior

Criminal Appeal No. 771 of 2024 Page 36 of 37 counsel, Shri K.Parameshwar, appearing for the

respondent, has fairly assisted the Court.

……………………..J. (Abhay S. Oka)

……………………..J. (Ahsanuddin Amanullah)

……………………..J. (Augustine George Masih)

New Delhi;

December 02, 2024

Criminal Appeal No. 771 of 2024 Page 37 of 37