Rajasthan High Court - Jodhpur
Devendra Kumar vs State on 11 November, 2021
Bench: Sandeep Mehta, Sameer Jain
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR
D.B. Criminal Appeal No. 21/2018
Pankaj
----Appellant
Versus
State
----Respondent
Connected With
D.B. Criminal Appeal (Db) No. 45/2018
Devendra Kumar
----Appellant
Versus
State
----Respondent
D.B. Criminal Appeal (Db) No. 100/2018
Tersem Singh
----Appellant
Versus
State
----Respondent
For Appellant(s) : Mr. J.S. Choudhary, Senior Advocate
assisted by Mr. Pradeep Choudhary
Mr. I.R. Choudhary
Mr. D.S. Thind
Ms. Sapna Vaishnav
For Respondent(s) : Mr. Arun Kumar, PP
HON'BLE MR. JUSTICE SANDEEP MEHTA
HON'BLE MR. JUSTICE SAMEER JAIN Order 11/11/2021 (Reportable) (In D.B. Criminal Appeal No. 100/2018) Heard learned counsel for the appellant, learned Public Prosecutor and perused the material available on record.
While opening the arguments on behalf of the accused appellant Tersem Singh, Shri J.S. Choudhary, learned Senior (Downloaded on 12/11/2021 at 08:42:02 PM) (2 of 5) [CRLAD-21/2018] Counsel assisted by Mr. Pradeep Choudhary pointed out that the manner in which the trial of the said accused was conducted has resulted into a sheer failure of justice as no legal assistance was provided to the accused and his defence has been seriously prejudiced. He urges that the victim Master 'J' was examined in this case as PW.2. He gave a statement incriminating the accused- appellant as being his kidnapper but the counsel, engaged by the appellant, did not put even a single question by way of cross- examination to the most important prosecution witness. He urges that as a matter of fact the counsel, who remained engaged on behalf of Tersem Singh for some part of the case never conducted the trial of the accused sincerely or faithfully. In this regard, Shri Choudhary drew the Court's attention to the statements of PW.1 Pahalwan Singh, PW.3 Praveen Kumar, PW.4 Nanakchand and PW.5 Rajendra Kumar from whom, no cross-examination was conducted on behalf of the appellant. Referring to the statements of PW.8 Vasu Kapil, PW.9 Ramesh Singh, PW.10 Kailash Chandra, PW.16 Ranjeet Ram and PW.17 Narendra Kumar, Shri Choudhary pointed out that when these witnesses were examined on oath, the accused was not even represented by the counsel and he was given the opportunity to cross-examine the witness on his own. As per Shri Choudhary, the accused who continues to languish in custody ever since 20.01.2015, does not have any legal acumen and thus, he should not have been left helpless to cross-examine the witnesses. Resultantly, hardly any questions were put to these witnesses on behalf of the accsued and thus, the defence of the accused has seriously been prejudiced. Learned counsel Shri Choudhary submits that no distinct opportunity was provided to the accused to cross-examine the witnesses PW.16 Ranjeet Ram (Downloaded on 12/11/2021 at 08:42:02 PM) (3 of 5) [CRLAD-21/2018] and PW.17 Shri Narendra Kumar. Shri Choudhary further pointed out that even when, no counsel was representing the appellant during a significant part of the trial, the learned trial court did not appoint an amicus curiae as is mandated by by law and a bald mention was made in the statements of witnesses that opportunity to cross-examine was given to the defence counsel. Shri Choudhary urges that as the appellant was not being represented at the time when the statements of material prosecution witnesses and more importantly the Investigating Officer PW.16 Ranjeet Singh and PW.17 Narendra Kumar were recorded, manifestly, it can be conclusively deduced that the accused did not get any opportunity whatsoever to cross-examine these witnesses. He thus, urges that the matter deserves to be remanded to the trial court with a direction to recall and provide an opportunity to the accused appellant to cross-examine the witnesses PW.1 Pahalwan Singh, PW.2 child victim Master 'J', PW.16 Shri Ranjeet Ram, IO and PW.17 Shri Narendra Kumar after providing the services of a free legal aid counsel. In support of this contention, Shri Choudhary, placed reliance on the judgment rendered by the High Court of Madras in the case of M. Kannan vs. State : 2018 CriLJ 116 and urged that the principles of fair trial have been violated and hence, these witnesses be recalled so that the effective cross-examination can be conducted from them on behalf of the accused Tersem Singh.
Learned Public Prosecutor, though formally opposed this prayer of Shri Choudhary, but he too is also not in a position to dispute the fact that during entire trial when evidence of the witnesses was recorded by the trial court, no effective cross- examination made on behalf of the accused appellant. This fact is (Downloaded on 12/11/2021 at 08:42:02 PM) (4 of 5) [CRLAD-21/2018] reflected from a bare perusal of the statement of child victim Master 'J' (PW.2) to whom, not even a single question was put in cross-examination on behalf of the appellant. On perusal of the statements of the witnesses examined from 29.10.2015 to 19.08.2016, it becomes clear that counsel was not available to represent the accused in the trial and offer to conduct cross- examination was given to the accused himself who obviously would not have been in a position to do so effectively. Providing legal aid to an accused in custody is the hallmark of the Free Legal Aid Scheme of the National Legal Services Authority and is also recognized as a fundamental right as enshrined in Article 22 (1) of the Constitution of India.
In this background, we are of the firm view that the manner in which, the trial was conducted by the learned trial court without providing effective legal aid to the accused has resulted into gross failure of justice and has seriously prejudiced the defence of the accused in a case involving offence punishable under Section 364- A IPC which entails capital punishment. Thus, we are persuaded to exercise suo motu powers under Section 391 CrPC so that the injustice can be cured. Accordingly, it is hereby directed that the record of the case shall be transmitted to the trial court who shall, recall the material prosecution witnesses, PW.1 Pahalwan Singh, PW.2 Master 'J', PW.16 Ranjeet Ram and PW. 17 Narendra Kumar so that effect cross-examination can be conducted from them on behalf of the accused Tersem Singh. The accused shall also be summoned from the Jail. In case, he is unable to engage a lawyer of his choice to defend himself, the trial court shall provide services of a competent defence counsel of significant standing in the Bar to the accused under the Free Legal Aid Scheme, (Downloaded on 12/11/2021 at 08:42:02 PM) (5 of 5) [CRLAD-21/2018] promoted by the Legal Services Authority. The entire exercise of allowing cross-examination from these witnesses and re- examination, if so required, shall be completed within two months from today. Needless to say that the legal aid counsel shall be provided complete record free of cost well in advance so that effective cross-examination can be carried out from these witnesses. The statements of these witnesses recorded after recall shall be transmitted to this Court with the original record. The appeals shall be listed for hearing on 12.01.2022. (In D.B. Criminal Appeal Nos. 21/2018 & 45/2018) List alongwith D.B. Criminal Appeal No.100/2018 on 12.01.2022.
(SAMEER JAIN),J (SANDEEP MEHTA),J
6-Sudhir Asopa/-
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