Delhi District Court
) Sh. Rajesh vs State on 6 September, 2018
Crl. Appeal No. 323/2017
IN THE COURT OF MS. SMITA GARG,
ADDITIONAL SESSIONS JUDGE FAST TRACK COURT,
WEST DISTRICT, TIS HAZARI COURTS, DELHI.
Crl. Appeal No. 323/2017
CNR No. DLWT010103152017
In re:
1) Sh. Rajesh,
S/o Sh. Hari Chand,
R/o Jhuggi No. B863,
Meera Bagh, Paschim Vihar,
New Delhi110063
2) Sh. Rakesh @ Rocky
S/o Sh. Amar Singh,
R/o Jhuggi No. B854,
Meera Bagh, Paschim Vihar,
New Delhi110063
3) Sh. Sanjeet Singh @ Sanju
S/o Sh. Baljeet Singh,
R/o Jhuggi No. B849,
Meera Bagh, Paschim Vihar,
New Delhi110063
Rajesh & Ors. v. State Page No.1/9
Crl. Appeal No. 323/2017
4) Smt. Prema Devi
W/o Sh. Hari Chand
R/o Jhuggi No. B863,
Meera Bagh, Paschim Vihar,
New Delhi110063 .........Appellants
Versus
State ........ Respondent
Date of institution of appeal : 15.11.2017
Date of pronouncement of judgment : 06.09.2018
JUDGMENT:
1. This appeal under Section 374 of Criminal Procedure Code lays challenge to judgment dated 23.09.2017 and order on sentence dated 31.10.2017 passed by the Ld. M. M. (Mahila Court02), West in State case arising out of FIR No. 319/2010 P.S Paschim Vihar whereby the appellants were convicted for the commission of offences punishable under Sections 452/325/323/34 IPC and were sentenced as under:
(i) rigorous imprisonment for the period of three years and to pay fine of Rs.1000/ each for the offence under Section 452 IPC;
(ii) rigorous imprisonment for the period of three years and to Rajesh & Ors. v. State Page No.2/9 Crl. Appeal No. 323/2017 pay fine of Rs. 1000/ each for the offence under Section 325 IPC;
(iii) rigorous imprisonment for the period of one year for the offence under Section 323 IPC.
2. The brief back ground relevant for the disposal of the appeal is as under: 2.1 On 07.11.2010, the above mentioned FIR was registered on the statement of the complainant Paras Ram wherein he alleged that on 06.11.2010 at about 05:40 PM, when he alongwith his wife Geeta and son Lalji was present in his Jhuggi No. 696B, Meera Bagh, Paschim Vihar, Delhi, the appellants armed with lathies and dandas trespassed into his jhuggi and on the exhortation of the appellant Prema, they all gave beatings to him with the weapons brought by them. When the wife and the son of the complainant tried to rescue him, the appellants gave beatings to both of them as well. On raising of alarm by the complainant, the appellants fled away after extending threats to him and his family members. During the course of investigation, the appellants were arrested. Statement of witnesses were recorded. After the completion of investigation, charge sheet was filed against the appellants in the court on 01.04.2011.
Rajesh & Ors. v. State Page No.3/9 Crl. Appeal No. 323/2017 2.2 On 15.01.2013, charge for the commission of offences punishable under Section 452/323/325/34/354/506(I) IPC was framed against the appellant Rakesh and charges for the commission of offences punishable under Section 452/323/325/34 IPC were framed against the remaining three appellants.
2.3 In order to establish its case, the prosecution examined seven witnesses. Complainant Paras Ram, his son Lalji and his wife were examined as PW1 to PW3 respectively. The remaining witnesses were duty officer, doctor, police official and the Investigating Officer.
2.4 On 31.07.2017, the statement of the appellants under Section 313 CrPC were recorded.
2.5 After evaluating the evidence on record, Ld. M. M. came to the conclusion that the prosecution had been successful in establishing the guilt of the appellants in respect of offences punishable under Sections 452/325/323/34 IPC and convicted them accordingly. Aggrieved therefrom, the appellants are Rajesh & Ors. v. State Page No.4/9 Crl. Appeal No. 323/2017 before this court.
3. I have heard the counsel for the appellants as well as Additional PP for the State. The trial court record has also been perused.
4. Though several grounds have been raised in the appeal but the conviction of the appellants has been vehemently assailed on the premise that they were not afforded the right of fair trial. The counsel for the appellants argued that while relying upon the testimonies of the complainant Paras Ram (PW1), his son Lalji (PW2) and wife Geeta (PW3), the trial court failed to appreciate that none of the said material witnesses had been cross examined on behalf of the appellants. He submitted that on the day of examination of the above witnesses by the prosecution, counsel for the appellants was not present and therefore, their crossexamination could not be conducted. He urged that since the appellants were not being assisted by their counsel on the relevant dates, it was the duty of the trial court to ensure that they were able to avail their right of fair trial as enshrined in Section 304 CrPC and that the failure of Ld. M. M. to do so, has not only caused prejudice to the appellants but has also vitiated the trial. He argued that in the circumstances, Rajesh & Ors. v. State Page No.5/9 Crl. Appeal No. 323/2017 impugned judgment and order on sentence are liable to be set aside.
Per contra, the Ld. APP has submitted that in view of the testimonies of the prosecution witnesses and the material on record, the appellants were rightly convicted by the trial court and thus no interference is called for.
5. The incident in question had taken place in the night of 06.11.2010. Qua the occurrence of the said incident, there were only three material witnesses i.e. the complainant, his son and his wife. A perusal of the trial court record shows that while the complainant Paras Ram (PW1) was examined by the prosecution on 21.08.2014, his son Lalji (PW2) and his wife Geeta (PW3) were examined on 27.07.2016 and 30.03.2015 respectively. On none of the said dates, the appellants were being represented and assisted by their counsel. Instead of adjourning the matter on the request of the appellants so as to afford fair and reasonable opportunity of crossexamination to them, the trial court tendered the witnesses for cross examination to the appellants. While doing so, the trial court overlooked the fact that the appellants, being the laymen, could not have been expected to be conversant with the intricacies of Rajesh & Ors. v. State Page No.6/9 Crl. Appeal No. 323/2017 law and crossexamine the witnesses in an effective manner. As a result thereof, the crossexamination of PW1 to PW3 was recorded as 'nil'. In the zeal to conclude the trial expeditiously, the trial court discharged the material witnesses in a hurried manner without being subjected to crossexamination in true sense. It is a settled law that the primary aim of a trial is to ascertain the truth and in a criminal trial, the crossexamination of the prosecution witnesses is an important tool in the hands of the accused to disprove the allegations against him. Failure of the trial court to afford fair and reasonable opportunity to the appellants to crossexamine the witnesses has reduced the trial to mere farce and pretense.
6. In Zahira Habibullah Sheikh and another v. State of Gujarat and others, 2006 (3) SCC 374, the Hon'ble Supreme Court has held that fair trial to an accused is centric to the administration of justice and essential for protection of human rights. Infact, the Hon'ble Apex Court in Hussain @ Zulfikar Ali (Mohd.) v. State, 2012 AD (Cri.) (SC) 401 in similar situation where the appellant remained unrepresented throughout the trial, while remanding the case to the trial court for fresh disposal after providing necessary assistance, emphasized the need to provide Rajesh & Ors. v. State Page No.7/9 Crl. Appeal No. 323/2017 legal assistance as under:
"17. 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 CrPC provides that in all criminal prosecutions, the accused has a right to have the assistance of a counsel and the CrPC also requires the court in all the criminal cases, where the accused is unable to engage a counsel, to appoint a counsel for him at the expense of the State. However 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 incharge, to see that he is denied no necessary incident of a fair trial. In the present case, not only the accused was denied the assistance of a counsel during the trial and such designation of counsel, as was attempted at a late stage, was either so indefinite or so close upon the trial as to amount to a denial of effective and substantial aid in that regard. The court ought to have seen to it that in the proceedings before the court, the accused was dealt with justly and fairly by keeping in view the cardinal principles that the accused of a crime is entitled to a counsel which may be necessary for his defence, as well as to facts as to law. The same yardstick may not be applicable in respect of economic offences or where offences are not punishable with substantive sentence of imprisonment but punishable with the fine only. The fact that the right involved is of such a character that it can not be denied without violating those fundamental principles of liberty and justice which lie at the base of all our judicial proceedings. The necessity of counsel was so vital and imperative that the failure of the trial court to make effective process of law. It is equally true that the absence of fair and proper trial would be violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 of CrPC.
7. In the case on hand also, the conviction of the appellants Rajesh & Ors. v. State Page No.8/9 Crl. Appeal No. 323/2017 has been based on the depositions of PW1 to PW3, which were not subjected to the test of crossexamination for the want of legal assistance to the appellants. Hence, in view of the principles laid down by the Apex Court in the above cited cases, the judgment dated 23.09.2017 can not be sustained in the eyes of law.
8. For the foregoing reasons, the appeal is allowed and the judgment dated 23.09.2017 as well as the order on sentence dated 31.10.2017 passed by the Ld. M. M. (Mahila Court02) are set aside. The matter is remanded to the trial court with the direction to afford fair and reasonable opportunity to the appellants to cross examine PW1 to PW3 subject to their availability and then, decide the matter afresh in accordance with law.
The appellants are directed to appear before the trial court on 25.09.2018 at 02:00 pm. With the above direction, the appeal stands disposed of. Appeal file be consigned to the record room.
SMITA Digitally signed
by SMITA GARG
GARG Date: 2018.09.07
05:19:34 +0200
Announced in the open court (Smita Garg)
on 06.09.2018 Addl. Sessions JudgeFTC, (West)
Tis Hazari Courts, Delhi.
Rajesh & Ors. v. State Page No.9/9