Delhi District Court
Raj Kumar Chauhan vs . The State (Nct Of Delhi) on 1 November, 2012
Raj Kumar Chauhan Vs. The State (NCT of Delhi)
CA NO: 05/12
IN THE COURT OF VIKAS DHULL, ADDITIONAL SESSIONS JUDGE-04,
DWARKA COURTS, DELHI
CA NO: 05/12
Raj Kumar Chauhan
S/o Sh.Grisa Ram
R/o RZ-124-A, Sadh Nagar
Palam Colony
New Delhi- 110 045 ... Appellant
Versus
The State (Govt.of NCT of Delhi) ... Respondent
Date of institution of appeal : 03.08.2012
Date on which judgment reserved : 30.10.2012
Date on which judgment pronounced : 01.11.2012
JUDGMENT
1. Challenge in this appeal is made to the judgment dated 28.03.2012 of the ld.trial court (hereinafter referred to as impugned judgment) vide which appellant was convicted u/s 279/304A of the Indian Penal Code, 1860 (hereinafter referred to as IPC) and order of sentence dated 29.03.2012 (hereinafter referred to as sentence order) vide which appellant was sentenced to undergo rigorous imprisonment for a period of six months and also to pay fine of Rs.1000/- u/s 279 IPC CA No: 05/12 1/7 Raj Kumar Chauhan Vs. The State (NCT of Delhi) CA NO: 05/12 and in default of payment of fine, he shall further undergo simple imprisonment for one month. Appellant was further sentenced to undergo rigorous imprisonment for a period of one year and also to pay fine of Rs.5,000/- u/s 304A IPC and in default of payment of fine, he shall further undergo simple imprisonment for three months.
2. The brief facts which are necessary for disposing of the present appeal are that on 23.07.2005, appellant was driving Swaraj Mazda bearing no. DL-IV A-3592 in rash and negligent manner and when he was at main road in front of Bandhu Vihar, Sector-10, Dwarka, New Delhi, he hit motorcycle no. DL-9SN-7943 being driven by one Naresh and caused his death and accordingly, FIR No. 279/05 at PS Dwarka Sector-23 was registered on the statement of one Nityanand Pal, who claimed to have seen the accident. Appellant was arrested at the spot. After investigation, appellant was charge sheeted for the offence u/s 279/304A IPC.
3. After framing of charge, matter was posted for prosecution evidence. The prosecution has examined ten witnesses. Out of these ten witnesses, five witnesses were duly cross examined by the counsel for appellant. However, testimony of PW6 to PW10 remains unrebutted due to non cross-examination by appellant. In the light of evidence of prosecution witnesses, the ld.trial court found the appellant guilty vide impugned judgment and was sentenced accordingly vide sentence order. Hence, the present appeal.
CA No: 05/12 2/7Raj Kumar Chauhan Vs. The State (NCT of Delhi) CA NO: 05/12
4. In the present appeal, impugned judgment and sentence order has been challenged on the ground that appellant was not represented by any counsel during most of his trial and all the important witnesses from PW6 to PW10 were examined in the absence of any counsel on behalf of appellant. It is further submitted that during the examination of PW6 to PW10, for a span of one year, appellant was not in a financial position to have services of any advocate. Therefore, it was the duty of the ld.trial court to provide counsel to the appellant at the state expense but since the same was not provided, hence, the entire trial before the ld.trial court was illegal.
5. The second ground of appeal is non-appreciation of evidence in the proper perspective by the ld.trial court.
6. Lastly, impugned judgment and sentence order has been challenged on the ground that the ld.trial court did not allow recalling of PW6 to PW10 and the two applications filed by the appellant on 22.12.2011 and 27.03.2012 were dismissed by the ld.trial court without affording any right to appellant to cross examine PW6 to PW10. Accordingly, it is prayed in the appeal that impugned judgment and sentence order be set aside and appellant be acquitted or in the alternative, matter be remanded back to the ld.trial court with direction to recall witnesses in question by giving appellant an opportunity to cross examine them.
7. Ld.APP for state has strongly opposed the appeal on the ground that CA No: 05/12 3/7 Raj Kumar Chauhan Vs. The State (NCT of Delhi) CA NO: 05/12 appellant had engaged a counsel before the ld.trial court and PW1 to PW5 were also cross examined by the counsel for appellant. It was further submitted by the Ld.APP that appellant had deliberately chosen not to make his counsel appear before the ld.trial court at the stage of cross examination of PW6 to PW10 and this fact is proved by the engagement of counsel at the stage of filing of two applications u/s 311 Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) before the ld.trial court. Accordingly, it was prayed that appeal be dismissed.
8. I have heard the ld.counsel for appellant Sh.O.P.Sharma and Ld.Addl.PP for state. I have also summoned the trial court record and have carefully perused the same.
9. The short question raised by the appellant in the present appeal is whether appellant deserves to be acquitted for the offence u/s 279/304A of the IPC on the ground that he was not provided the legal assistance by the ld.trial court during the cross examination of PW6 to PW10. The answer to the question can be found in the latest judgment of the Hon'ble Supreme Court of India reported as Hussain @ Julfikar Ali (Mohd.) Vs. State (Govt.of NCT) Delhi, 2012 VIII AD (SC) 617. It was held by the Hon'ble Supreme Court of India in para 7 of the aforesaid judgment as follows:--
"In the present case, not only was the accused denied the assistance of a counsel during the trial but CA No: 05/12 4/7 Raj Kumar Chauhan Vs. The State (NCT of Delhi) CA NO: 05/12 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 fine only. The fact that the right involved is of such a character that it cannot 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 an effective appointment of a counsel was a denial of due 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 Cr.P.C. After carefully going through the entire records of the trial court, I am CA No: 05/12 5/7 Raj Kumar Chauhan Vs. The State (NCT of Delhi) CA NO: 05/12 convinced that the appellant-accused was not provided the assistance of a counsel in a substantial and meaningful sense. To hold and decide otherwise, would be simply to ignore actualities and also would be to ignore the fundamental postulates, already adverted to."
10.It was further held by the Hon'ble Supreme Court of India in para 11 that if an accused remains unrepresented by a lawyer then the ld.trial court has a duty to ensure that he is provided with proper legal aid.
11.The Hon'ble Supreme Court of India further held in para 46 that since accused was denied the fair trial by not providing the legal assistance, therefore, matter was remanded back for de novo trial before the ld.trial court.
12.Applying the ratio of the aforesaid case to the present case, it is noted that in the present case although it is true that at the initial stage of prosecution evidence, appellant had engaged a counsel and PW1 to PW5 were duly cross examined by the appellant's counsel but at the stage of examination of PW6 to P'W10, there was no counsel representing the appellant. Therefore, as per Section 304 Cr.P.C., it was the duty of the ld.trial court to have provided the legal assistance to the appellant to ensure fair trial. The trial court record reveals that no effort was made by the ld.trial court to provide legal assistance to CA No: 05/12 6/7 Raj Kumar Chauhan Vs. The State (NCT of Delhi) CA NO: 05/12 the appellant and therefore, there was no cross examination on behalf of appellant of prosecution witnesses i.e.PW6 to PW10, in the absence of any counsel on his behalf.
13.In the facts, applying the ratio of judgment of Hussain @ Julfikar Alis (Mohd.)'s case (Supra) to the facts of the present case, I find that in the present case also, appellant has been denied the right of fair trial by not providing legal assistance as mandated by Section 304 Cr.P.C. Hence, the appeal is allowed. Impugned judgment dated 28.03.2012 and sentence order dated 29.03.2012 are accordingly set aside. The matter is remanded back to the ld.trial court for a de novo trial and the ld.trial court is directed to proceed with the trial of appellant from the stage of cross examination of PW6 Dr.Santosh Kumar. The ld.trial court is further directed to provide legal assistance to the appellant in case, he is unable to engage a counsel of his own choice as mandated by Section 304 Cr.P.C. Appellant to appear before the ld.trial court on 09.11.2012 at 2.00 p.m. Appeal file be consigned to record room.
A copy of judgment alongwith TCR be sent back to the ld.trial court.
Announced in the open court (Vikas Dhull)
Dated: 01.11.2012 ASJ-04/Dwarka Courts
New Delhi
CA No: 05/12 7/7