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SUPREME COURT OF INDIA
Abhay S. Oka, Ahsanuddin Amanullah, Augustine George Masih, JJ.
Ashok – Appellant
VERSUS
State of Uttar Pradesh – Respondent
Criminal Appeal No. 771 of 2024
Decided On : 02-12-2024
(A) Indian Penal Code, 1860 – Sections 376, 302 and 201 [Bharatiya Nyaya Sanhita, 2023 – Sections 64, 103(1) and 238] – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Section 3(2)(v) – Rape, murder and disappearance – Life imprisonment for remainder of natural life – Evidence of sole eyewitness cannot be held to be of sterling quality – It is unsafe to base conviction only on his testimony – Prosecution did not examine independent witnesses – Though date of recovery is mentioned in memo, time and, most importantly, place of recovery are not mentioned – It cannot be said that pursuant to statement made by appellant, in accordance with Section 27 of Indian Evidence Act, 1872, articles were found at place stated by appellant – Evidence of recovery will have to be kept out of consideration – Recovery of articles at instance of appellant is a very important circumstance in chain of circumstances – It is not proved – Appellant's guilt beyond reasonable doubt has not been established – Material circumstances appearing in evidence against appellant have not been put to him – Appellant was prejudiced – Incident is fifteen and a half years old – After such a long gap, it will be unjust if appellant is now told to explain circumstances and material specifically appearing against him in evidence – Appellant had been incarcerated for about twelve years and nine months before he was released on bail – Considering long passage of time, there is no option but to hold that defect cannot be cured at this stage – Both Trial Court and High Court have overlooked non-compliance with requirements of Section 313 of Cr.P.C. – Cross-examination of witnesses was not up to mark – Imposing capital punishment in such a case shocks conscience of this Court – Impugned judgments and orders set aside and appellant acquitted of offences alleged against him. (Paras 12, 13, 16, 17, 22 and 24)
(B) Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 351[Section 313(5) of Cr.P.C., 1973] – Examination of accused – Public Prosecutor has to play an active role in ensuring that every trial is conducted in a fair manner and in accordance with law – It is Public Prosecutor's duty to invite Court's attention to requirement of putting all incriminating material to accused – Public Prosecutor is under obligation to remain present when examination of accused is made to assist Court. (Para 18)
(C) Criminal Procedure Code, 1973 – Sections 303 and 304 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 340 and 341] – Constitution of India – Articles 21 and 39A – Legal aid to accused – Right to get legal aid is a fundamental right of accused, guaranteed by Article 21 of Constitution – Under Section 304 of Cr.P.C., it is duty of Court to ensure that a legal aid Lawyer is appointed to espouse cause of accused – Every accused has right to get legal aid, even to file bail petitions – Legal aid must be effective – Advocates appointed to espouse cause of accused must have good knowledge of criminal laws, law of evidence and procedural laws apart from other important statutes – In cases where offences are of a very serious nature and complicated legal and factual issues are involved, Court, instead of appointing an empanelled legal aid Advocate, may appoint a senior member of Bar who has vast experience of conducting trials to espouse cause of accused so that accused gets best possible legal assistance – In all cases where there is possibility of life sentence or death sentence, only those Advocates who have put in a minimum of ten years of practice on criminal side should be considered to be appointed as amicus curiae or as a legal aid Advocate – State Legal Services Authorities shall issue directions to Legal Services Authorities at all levels to monitor work of legal aid Advocate and shall ensure that legal aid Advocates attend court regularly and punctually when cases entrusted to them are fixed – It is necessary to ensure that same legal aid Advocate is continued throughout trial unless there are compelling reasons to do so or unless accused appoints an Advocate of his choice. (Paras 20 and 23)
Facts of the case:
Trial Court, by judgment and order dated 24th December 2012, convicted appellant for offences punishable under Sections 376, 302 and 201 of Indian Penal Code. Trial Court also convicted appellant under provisions of Section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Trial Court imposed capital punishment. Though High Court confirmed conviction, death penalty was set aside and appellant was sentenced to undergo life imprisonment for remainder of his natural life subject to exercise of powers of grant of remission or grant of clemency by constitutional functionaries.
Findings of Court:
Right of accused to defend himself in a criminal trial is guaranteed by Article 21 of Constitution of India. He is entitled to a fair trial. But if effective legal aid is not made available to an accused who is unable to engage an advocate, it will amount to infringement of his fundamental rights guaranteed by Article 21.
Result : Appeal allowed. Appellant acquitted.
JUDGMENT
ABHAY S. OKA, J.
FACTUAL ASPECT
1. This is a very unfortunate case. The victim of the offence was ten years old at the time of the incident. On 27th May 2009, around 9.00 a.m., she and her first cousin, PW-2, had gone to a pasture to graze her goats. The age of PW-2 was seven years at that time. As the victim was thirsty, she went near a tubewell cabin. The appellant- accused was working as an operator of the tubewell appointed by the owner of the tubewell. The victim requested the appellant to provide drinking water. The allegation of the prosecution is that, with evil intentions, the appellant took her inside the cabin. He committed rape on her and, after that, murdered her. According to the prosecution’s case, PW-2 saw the appellant forcibly taking the victim inside the cabin and raping her. By 11.00 a.m., PW-2 returned to PW-1, the victim's father. PW-1 was the uncle of PW-2. After PW-2 narrated the story to PW-1, he went to the tubewell cabin to find the victim and found the dead body of the victim hidden in a haystack in that cabin. On being questioned by PW-1, the appellant fled from the spot and thereafter, PW-1 registered the First Information Report.
2. The Trial Court, by judgment and order dated 24th December 2012, convicted the appellant for the offences punishable under Sections 376, 302 and 201 of the Indian Penal Code (for short, ‘the IPC’). The Trial Court also convicted the appellant under the provisions of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the SCST Act’). The Trial Court imposed capital punishment.
3. The High Court heard the reference under Section 366 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) with an appeal preferred by the appellant. Though the High Court confirmed the conviction, the death penalty was set aside and the appellant was sentenced to undergo life imprisonment for the remainder of his natural life subject to the exercise of powers of grant of remission or grant of clemency by the constitutional functionaries.
4. The present appeal is against the judgments mentioned above. By order dated 20th May 2022, this Court granted bail to the appellant after noting that he had undergone actual incarceration for about 13 years. We may note here that earlier, learned counsel Shri M Shoeb Alam was appointed as amicus curiae to espouse the cause of the appellant. After his designation as a senior advocate, he continued to assist this Court. Shri Talha Abdul Rahman, Advocate-on-Record, was appointed amicus curiae to assist the learned senior counsel.
SUBMISSIONS
5. The learned senior counsel appearing for the appellant has taken us through the evidence of the prosecution witnesses. Inviting our attention to evidence of PW-1, Heera Lal, the father of the victim, he pointed out that the version of the witness in his examination-in-chief is based on what was reported to him by PW-2, the minor witness. But, if we compare the depositions of PW-2 with the examination-in-chief of PW-1, there is a significant variance between the version of PW-2 as stated by PW-1 and what PW-2 stated in his examination-in-chief. He pointed out that in the cross-examination, PW-1 has tried to improve upon his version by trying to depose consistently with the version of PW-2. Inviting our attention to the proceedings before the Trial Court, he submitted that when the examination-in-chief of the PW-1 was recorded, the appellant-accused was not represented by any advocate. Therefore, the cross-examination was adjourned to enable the appellant to engage an advocate.
An advocate was appointed to espouse his cause after the examination-in-chief of PW-1 was recorded. The appellant was not represented by any advocate at the time of the framing of the charge.
6. Coming to the depositions of PW-2, the learned senior counsel for the appellant urged that considering the difference between the version of PW-1 in his examination- in-chief and cross-ex
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