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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO.20 OF 2005

Suhhalal s/o Zitu Lilare,
Aged about 55 years,
Occupation – Labour,
R/o Sakhara, Tahsil – Warora,
District – Chandrapur. …. APPELLANT

VERSUS

State of Maharashtra,
through Police Station Officer,
Shegaon, Tahsil – Warora, District-
Chandrapur. …. RESPONDENT

__

Shri P.S. Sahare, Counsel for the appellant,
Shri N.H. Joshi, Additional Public Prosecutor for the respondent.
__

CORAM : ROHIT B. DEO, J.

DATED : 16
MARCH, 2018.

th

ORAL JUDGMENT :

The challenge is to the judgment and order dated

16-9-2004 rendered by the learned 3rd Ad hoc Additional Sessions

Judge, Chandrapur in Sessions Case 34/2002, by and under which the

appellant-accused is convicted for offence punishable under Section

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376 of the Indian Penal Code (“IPC” for short) and is sentenced to

suffer rigorous imprisonment for four years and to payment of fine of

Rs.500/-.

2. Heard Shri N.H. Joshi, learned Additional Public

Prosecutor for the respondent.

Shri P.S. Sahare, learned Counsel for the accused states

that he is not ready with the matter. The appeal is part-heard. The

learned Additional Public Prosecutor Shri N.H. Joshi was heard on

14-3-2018 and 15-3-2018. On both the aforesaid dates of hearing the

learned Counsel for the accused did not appear. The request for

adjournment is rejected.

4. Few disturbing facts emerge from the scrutiny of record.

5. It is too settled a position of law, to warrant a lengthy

discussion or debate, that right to legal aid is an integral facet of right

to a fair trial which is inter alia guaranteed under Article 21 of the

Constitution of India.

6. The learned Additional Public Prosecutor Shri N.H. Joshi

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in all fairness, invites my attention to the fact that the learned Counsel

who appeared on behalf of the accused in the trial Court, after the

evidence of P.W.1-prosecutrix and P.W.2 was recorded, filed on record

a no instructions praecipe on 07-05-2004 (Exhibit 22), with the result

that the witnesses which are examined later on were either cross-

examined by the accused or the cross-examination is declined. Perusal

of Exhibit 22 reveals that all that is stated is that Counsel has no

instructions from the accused. Surprisingly, it appears from record that

immediately the learned Sessions Judge proceeded to record the

evidence of P.W.3, P.W.4 and P.W.5. The learned Sessions Judge did

not feel it necessary to adjourn the trial to enable the accused to

engage some other counsel nor was it felt necessary to inform the

accused that he is entitled to legal aid.

7. P.W.3 Tulsabai Thakare is a material witness. She is

examined to bring on record that immediately after the alleged

incident, the prosecutrix narrated the incident to her. The accused

cross-examined her without the assistance of Counsel, her evidence has

gone unchallenged. P.W.4 Rekha Aasutkar is again a witness to whom

the prosecutrix allegedly narrated the incident. The accused declined

to cross-examine P.W.4 Rekha. P.W.7 Dr. Sangita Narnaware is the

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Medical Officer who examined the prosecutrix. The accused declined

to cross-examine P.W.7. P.W.8 Sanjay Khandekar is the investigating

officer whose evidence has gone unchallenged since the accused

declined to cross-examine the investigating officer.

8. It appears from the record, and this is most unfortunate,

that the learned Sessions Judge did not make any effort to inform the

accused that he is entitled to legal aid. It is not clear what prompted

the counsel on record to inform the Court that he did not have any

instructions from the accused, particularly since the Counsel did cross-

examine P.W.1 and P.W.2. The conduct of the learned Counsel, who

left the accused in a lurch was not appropriate, to put it very mildly.

Be that as it may, the conscience of this Court is satisfied that the entire

trial is vitiated. The constitutional right of the accused to a fair trial is

violated in a most casual and cavalier manner and with disdain.

9. It would be apposite to refer to the enunciation of law by

the Hon’ble Apex Court in Suk Das and another vs. Union Territory

of Arunachal Pradesh reported in AIR 1986 SC 991. The Hon’ble

Apex Court observes that free legal assistance at State costs is a

fundamental right of a person accused of an offence which may involve

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jeopardy to his life or personal liberty. This fundamental right is

implicit in the requirement of reasonable, fair and just procedure

prescribed by Article 21 of the Constitution of India and the exercise of

such right is not conditional upon the accused applying for free legal

assistance. In the case at hand, the least which was expected from the

learned Sessions Judge was to enquire from the accused whether he

needed free legal aid. This Court is impelled to record, although with

some reluctance and lot of regret that neither the Counsel on record

nor the learned Sessions Judge was alive to the constitutional rights

and aspirations of the accused.

10. Ordinarily, this Court would have remitted the matter to

the learned Sessions Judge to conduct a fresh trial from the stage of

recording the evidence of P.W.3. However, since P.W.1 and P.W.2 are

cross-examined by the Counsel who has placed on record the no

instructions praecipe, I deem it appropriate to set aside the judgment

and order impugned and to direct that the trial be conducted de novo.

11. The accused shall appear before the learned Sessions

Judge on 11-6-2018. The learned Sessions Judge shall satisfy himself

that the accused is able to engage Counsel and if the accused is not in a

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position to engage Counsel, he shall be provided free legal aid.

12. The incident occurred in 2002. It is, therefore, expected

that the trial be conducted speedily and preferably on a day to day

basis. In any event, the trial shall be concluded on or before

31-12-2018. The accused shall execute fresh P.R. Bond before the trial

Court.

13. In the light of the discussion supra, the judgment and

order impugned is set aside subject to the above directions.

14. The appeal is disposed of accordingly.

JUDGE
adgokar

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