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Accused is un-represented in this appeal also. Section 304 CrPC provides for a legal aid to an accused who was not represented by a pleader and further where it appears to the court that accused had no sufficient means to engage a pleader. This provision is primarily applicable in a trial pending before Sessions court. Further clause 3 of this provision provides that State Government by notification might direct that the provisions of this section were applied to other cases of trial before other court. Importance of a fair and reasonable defence to the accused while facing a charge on a criminal case has been examined by the Supreme Court in a case Khatri v State of Bihar, AIR, 1981, SC, 928, where it has been held that trial is vitiated when the accused persons are not about free legal assistance and they remained un-defence during trial. Again in a judgment given by Bombay High Court reported as Sanjay Khandrao v. State of Maharasthra, 2007, Cr.L.J., 545, that the right of accused to be defended is essentially connected with right to life. Provisions of section 304 CrPC give effect to the Constitutional mandate contained in Article 21 and 39A of the Constitution and thus the right to defend is essential concomitant with the right to life. Benefit of an adequately competent advocate to defend accused when he is unable to defend himself is factually part of article 21 of the constitution.

The disturbing feature in this trial is that there is no cross examination on the witnesses at all. Order sheets recorded in the trial court file for the dates when these two eye witnesses were examined or that when remaining other witnesses have been examined with no cross examination despite opportunity given, only accused is present and there is no advocate at all for accused to defend him. In fact a number of order sheets recorded only presence of accused as on bail and there is no presence of his advocate. Ld. trial court ought to have been cautious of a fair trial to the accused and when eye witnesses were examined, reasons should have been recorded as to why there was no cross examination on the witness and if it was for the reason that there was no advocate available / engaged by accused to defend him then some competent advocate ought to have been provided to the accused to put his defence in the cross examination of the witness. At least Ld. trial court should have been alive to a factual situation that the bus driven by accused had gone to the extreme right side of the road which was 30 ft. wide and then it had hit the Maruti Van parked on the road side and was stationery. At least accused should have been made to come out about his version of the accident and that version should have been put to the eye witness in their cross examination. Absolute no cross examination, to my view , has resulted in a serious prejudice to accused which in - fact is no trial at all. Conviction on un-crossed testimony of the witnesses thereby accepting evidence as un-challenged and un-rebutted only for the reason that there was no defence counsel to defend accused and neither the version of accused was brought by being put to the witness in the cross examination, it cannot stand scrutiny of provision of section 304 CrPC.