IMPORTANT POINT
Accused is entitled to have best of legal assistance. Court must ensure best legal assistance to accused if accused is unable to get it at his own.

JUDGMENT

V. Ramasubramanian, J.

Leave granted.

2. Challenging their conviction for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (“IPC” for short) and the sentence of life imprisonment and a fine of Rs.2500/­ imposed upon them by the Ist Additional Sessions Judge, Sagar, M.P., and confirmed by the Division Bench of the High Court of Madhya Pradesh at Jabalpur, Accused Nos.2 and 3 have come up with these criminal appeals.

3. We have heard Mr. Ardhendumauli Kumar Prasad and Mr. Amit Arjariya, learned counsel appearing for the appellants and Shri S.U. Lalit, learned counsel appearing for the State.

4. Smt. Sahodra Bai (hereinafter referred to as “A­2”), who is the appellant in one of these appeals, is the sister of Shri Madhav (hereinafter referred to as “A­3”) who is the appellant in the other appeal. Shri Raju Yadav who was Accused No.1 is the husband of Sahodra Bai.

5. The case of the prosecution was that on the night of 13.05.2008, at about 22.30 hrs., all the three accused, in furtherance of the common intention of all, attacked one Pappu @ Nand Kishore (brother of A­1) with a knife and lathis resulting in his death and that, thereafter, with the intention of screening the offenders from legal punishment, A­2 took the victim to the Government Hospital and sent a false information to the Police as though the murderous assault on the victim was committed by two other persons by name Ruia and Kailash. While all the three accused were charged for offences punishable under Section 302 read with Section 34 IPC, A­2 was charged additionally for the offences punishable under Sections 211 and 194 IPC.

6. The prosecution mainly relied upon (i) the purported eyewitness account of PWs 4, 5, 6, 7 and 9, (ii) the medical evidence regarding the cause of death; and (iii) the recovery of the weapons used for the commission of the offence namely, knife and lathis, from the houses of the accused and the report of the Forensic Sciences Laboratory (“FSL” for short). 7. Out of the witnesses on whose ocular testimony, heavy reliance was placed by the prosecution, PWs 6 and 7 were the persons whom A­2 had named as the accused, in the first information sent from the hospital on the night of 13.05.2008. PWs 4 and 5 were related to PWs 6 and 7. Actually the prosecution treated PWs 4 and 5 as hostile, after they stated during chief examination that they did not see A­3 at the spot, which was contrary to their statement to the Police. The Sessions Court believed their testimony partly in so far as it related to the presence of A­1 and A­2 at the spot but disbelieved their evidence, in so far as it related to the alleged assault on the victim. But the High Court proceeded on the footing, without any rhyme or reason, as though PWs 4 and 5 were independent witnesses who corroborated the testimony of PW­9. The High Court even overlooked the fact that the Trial Court declared them as hostile at the request of the prosecution.

8. PW­6 was a person by name Kailash Yadav and PW­7 was a person by name Ruia Yadav. As stated in the previous paragraph, PWs 6 and 7 were the ones who were named as accused, in the First Information Report FIR No.331 of 2008 registered on 13.05.2008, on the basis of the intimation sent by A­2 from the hospital. The Sessions Court disbelieved the evidence of PW­6 in entirety, but accepted one portion of the statement of PW­7, on the basis of the so called corroboration by one Smt. Radha Rani, mother of the deceased, examined on the side of the defence as DW­1. But that portion of the evidence of PW­7 taken by the Sessions Court to be probable, merely related to an argument that the victim Pappu had with his brother Raju (A­1) nearly two hours before the time of occurrence of the crime. Interestingly the argument between the deceased and A­1 was purportedly in relation to an amount of Rs.250/­ borrowed by the deceased from PW­7, but not repaid by him.

9. The Sessions Court considered Sapna Yadav, e