Allahabad High Court
Lala Alias Narendra Singh Son Of Uttam ... vs State on 8 May, 2007
Author: Imtiyaz Murtaza
Bench: Imtiyaz Murtaza
JUDGMENT Shiv Charan, J.
1. The instant appeal has been directed against the judgment and order dated 16.11.2005 passed by Addl. Sessions Judge Court No. 4 Firozabad in S.T. No. 218 of 2004 State v. Lala alias Narendra Singh Under Section 302 IPC. P.S. Tundala District Firozabad. By the impugned judgment and order learned Sessions Judge convicted the appellant Lala alias Narendra Singh for the offence punishable Under Section 302 I.P.C. and sentenced him to imprisonment for life.
2. The brief narration of the fact are as follows:
The complainant Brij Bhushan Singh lodged F.I.R. on 26.1.2004 at about 12.30 p.m. with the allegations that his uncle (Tau) Uttam Singh disposed of the agricultural land as well as the residential house of his share. His son Lala alias Narendra Singh has been residing in the temple. He told to his father to deliver son e share to him from his house. On it, the father or the complainant old to him that they had already disposed of the house of their share. Now there is no share in this house. Father of accused Lala also instituted a civil suit regarding the house. On it, accused had enmity from his father. The father of the complainant used to visit at the temple for recital of Ramayan and the complainant went in the field. When his father came out from the temple after recital of Ramayan then Lala armed with a sharp edged weapon attacked on the neck of his father and as a result of injury his father succumbed to the injuries an the spot. Accused also rushed towards the complainant and attacked on him. Hari Om challenged the accused and then he escaped from the spot.
3. After investigation of the case charge sheet was submitted in the Court and matter was tried by the Sessions Judge. After recording the entire evidence of the prosecution learned Sessions judge convicted the appellant for the offence punishable Under Section 302 IPC. and sentenced him for imprisonment for life.
4. We have heard Sri Samit Gopal Amicus curiae for the appellant, Sri R.K. Singh A.G.A and perused the entire record.
5. It has been argued by learned Counsel for the appellant that the learned Sessions Judge has not provided the opportunity to the appellant to conduct cross-examination of the witnesses if the advocate engaged by the appellant was not available to cross-examination then the Sessions Judge should have provided an advocate at the expenses of the State. But the Sessions Judge closed the statement of the witnesses being cross-examined on behalf of the appellant. There had been violation of fundamental rights of the appellant because he was deprived from defending himself according to law and as the witnesses were not cross-examined hence the learned Sessions Judge placed reliance on the statement of the witnesses and convicted him and in the eye of law this is no statement of the witnesses. The statement means examination in chief, cross examination and re-examination if any. In the present case the witnesses were not cross examined and the Sessions judge committed gross illegality in placing reliance on witnesses who were not cross-examined on behalf of the appellant.
6. Learned A.G.A. opposed the argument of the appellant's counsel and stated that opportunity was provided to the appellant to cross-examine the witnesses but intentionally in order to delay the disposal of the case the witnesses were not cross-examined by the counsel of the accused. As there was an advocate on behalf of the appellant before the trial court hence there was no justification for the sessions Judge to appoint an amicus curiae to conduct the case on his behalf. The Sessions judge was perfectly justified in convicting the appellant for the offences after placing reliance on the statement of the witnesses.
7. We have considered the submissions of learned Counsel for the appellant, learned A.G.A and perused the entire record.
8. From the perusal of the original file of the trial court this argument of learned Counsel for the appellant appears justified that the witnesses were not cross-examined on behalf of the appellant Examination-in-chief of Brij Bhushan P.W. 1 was recorded on 20.9.2004. On that date an application was moved on behalf of the accused for adjournment as his advocate was busy in another court and this application of the appellant was allowed and the cross-examination was deferred. On 23.9.2004 as none appeared for the appellant to cross-examine the witness P.W. 1 inspite of waiting up to 1.25 p.m. presumption was drawn that the attitude of accused is in-different to the case and the matter is being intentionally delayed. As no advocate was present on behalf of Lala alias Narendra Singh to cross-examine the witness, hence the witness P.W. 1 who was present in Court was discharged and by passing this oredr the Sessions Judge closed the statement of P.W. 1 without cross-examination on behalf of the accused appellant and on subsequent dates the statement of Hari Om Singh P.W. 2, Digambar Singh P.W. 3, Indra Pal Singh P.W. 4, Balbir Singh P.W. 5, Rajendra Prasad Saraswat P.W. 6, S.P. Misra S.I. P.W. 7, Dr. Shankar Ghule P.W. 8 were recorded. It has been mentioned in the statement of the witnesses. "opportunity given to accused for cross-examination but not availed hence cross-examination nil". Hence it is a fact that the witnesses were not cross-examined. Except the order dated 23.9.2004 no order was passed by the Sessions Judge to the effect that as to why the witnesses were discharged without being cross-examined on behalf of the accused-appellant. We are of the opinion that proper opportunity or being defend must have been provided to the accused specially when accused is in jail and in the present case during trial also the appellant was in jail. Under these circumstances when the advocate was not appearing to conduct the case on behalf of the accused then it was the duty of the Sessions Judge to provide an amicus curiae on the expenses of the State to defend him. But the learned Sessions Judge made no endeavour to pass an order for appointment of amicus curiae to defend the accused.
8. Learned Counsel for the appellant argued that it is a fundamental right of an accused that legal aid be provided to him. He also argued that Section 303 Cr.P.C is also relevant in this connection. It has been provided Under Section 303 Cr.P.C.
Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code, may of right be defended by a pleader of his choice.
Hence in view of the provision the appellant had a right to be defended by the Advocate of his choice but when the Advocate of his choice failed to appear in the court then the options before the Sessions Judge was to provide an opportunity to the accused either to engage an Advocate of his choice or if he failed to engage an Advocate of his choice then an Advocate "Amicus Curiae" should have been appointed to defend him. But the Sessions Judge failed to give an option to the accused either to engage an Advocate of his choice or passed an order to appoint an Amicus Curiae.
10. It has further been provided Under Section 304 Cr.P.C. that "where, in a trial before the Court of Sessions, 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."
11. Hence in view of this specific provision of Code of Criminal Procedure it was the, duty of the Sessions Judge to provide an Advocate to the appellant to conduct his case at the expenses of the State as has been provided. Although, in the present case the accused appointed an Advocate of his choice but subsequently he failed to appear in the Court to cross-examine the witnesses. Under these circumstances, the Sessions Judge should have presumed that there is no Advocate on behalf of the accused to defend him or the accused is not possessing sufficient means to engage a pleader. Hence the Sessions Judge was duty bound in view of Section 304 Cr.P.C to provide in Advocate to the accused at the expenses of the State. But the learned Sessions Judge failed to discharge the obligations . It was expected from him for ensuring a fair and free trial. Moreover, it has also been provided in Article 39A of the Constitution of India "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." and in pursuance of this provision of Constitution, Section 304 has been added in the Code of Criminal Procedure.
12. For the reasons mentioned above, we are of the opinion that the learned Sessions judge failed to discharge the obligation which is expected from him according to law. It was most unjustified on the part of the Sessions Judge to deprive the appellant to cross-examine the witness in the case Under Section 302 IPC. If an Advocate engaged by the appellant was not appearing to conduct the case then the Sessions Judge should pave appointed an Amicus Curiae to conduct the case on behalf of the appellant. This was highly improper on the part of the learned Sessions Judge. Under these circumstances, without entering into the merit of the case we are of the opinion that fair trial was not conducted in the present case and the appellant was deprived off from the legal aid hence there appears no option except to remand the case for fresh trial. There appears no justification to uphold the judgment and order of the learned sessions Judge. The appeal deserves to be allowed.
13. Appeal is allowed. Judgment and order of learned Sessions Judge dated 16.9.2005 is set aside. However, the case is remanded to the Sessions Judge, for retrial. Opportunity shall be provided to the appellant to cross-examine the witnesses. The Sessions judge, Firozabad shall either decide the case himself or transfer it to some other Addl. Sessions Judge and Court concern shall provide an opportunity to the appellant to engage an Advocate of his choice and if within reasonable time the appellant failed to engage an Curiae to conduct the case on behalf of the appellant the examination-in-chief of the witnesses shall not be recorded afresh rather opportunity shall be provided to cross-examine them. The appellant shall remain in jail during trial also. The Sessions Judge shall conclude the trial expeditiously within a period of three months from the date of receipt of file and copy of judgment. Original file along with copy of this judgment be sence to the Sessions Judge Firozabad for appropriate action.