The main legal point established in the judgment is that the appellants were given adequate opportunity to participate in the trial and their refusal to avail legal aid appeared to be part of a strategy to delay the trial.

B.P. Dharmadhikari, J.

These two appeals under Section 374[2] of the Criminal Procedure Code arise out of common judgment dated 30.03.2016, delivered in Sessions Trial Nos. 144/2012 and 233/2014. Accused persons are found guilty of committing various offences like under Section 143, 144, 147, 148 and Section 324 read with Section 149, Section 302 read with Section 149 of Indian Penal Code. The maximum imprisonment imposed is for offence punishable under Section 302 read with Section 149 of Indian Penal Code, and they are sentenced to imprisonment for life and fine of Rs.10,000/- each. Looking to the challenge as posed, it is not necessary to mention other punishments which are imposed upon them by the impugned judgment.

2. Basically arguments have been advanced in Criminal Appeal No. 139/2016, where the original accused no.5 Mohd Hanif and accused no.6 Mohd. Azam are the appellants. These arguments are urged to be sufficient to vitiate the common judgment and therefore, valid for even allowing appeal No. 189/2016 filed by the original accused nos. 1 to 4. According to learned senior advocate in view of fundamental error in trial, the remand and a fresh judgment in both the trials is necessary. After hearing, it became clear that prayer for remand could have been granted if the contentions were accepted. But, in case of its rejection, these appeals could not have been dismissed and hearing on merits would have been necessitated. Hence, we have treated the challenge as a preliminary challenge.

3. In Crime as alleged, prosecution claims participation of 12 accused persons. One of them is juvenile, 6 are before this Court and 5 are still reported to be absconding. Relationship between the parties is not in dispute. Appellant Mohd. Munaf and Mohd. Ansar in Criminal Appeal No. 189/2016 are brothers of appellants in Criminal Appeal No. 139/2016. Appellant no.4 Mohd. Amir in Criminal Appeal No.189/2016 is son of appellant no.2 Mohd. Azam in Criminal Appeal No. 139/2016. Appellant no.3 Mohd. Irfan in Criminal Appeal No. 189/2016 is also claimed to be relative of all these appellants.

4. Senior Advocate Shri A.V. Gupta along with Shri R.K. Tiwari, learned counsel for appellants have urged that there is violation of Section 299 of Criminal Procedure Code while dealing with Sessions Trial No. 233/2014. The corresponding provisions contained in Section 33 of Evidence Act, is also pressed into service to explain the impact with submission that as on this ground the judgment of conviction stands vitiated in one trial, it stands vitiated entirely i.e. in other Sessions Trial No.144/2012, This earlier trial has been clubbed and tried together along with later Sessions Trial No.233/2014. Other contention pressed into service is breach of Section 304 Criminal Procedure Code, in as much as two appellants in Appeal No. 139/2016, have not been given legal aid and tried in Sessions trial 233 of 2014.

5. Shri M.J. Khan, learned A.P.P. appearing on behalf of the State Government and Shri R.J. Mirza, learned Counsel permitted to assist prosecution on behalf of the complainant, have refuted these contentions. They have invited attention to relevant developments to urge that the appellants cannot be permitted to take advantage of their own wrong and conduct. They also have not approached this Court with unclean hands and have attempted to drag the litigation so as to harass the witnesses. Previous history in the matter is also pressed into service to urge that when challenges came before this Court, two appellants in Criminal Appeal No. 139/2016 choose to engage Advocate and when matter started before the Sessions Court, though opportunity was given, they did not engage Advocate, did not avail legal aid, though offered, and also did not cross examine prosecution witness. Services of very same advocate who represented other appellants before trial court were availed only in High Court only. According to them prosecution witness had complained of thre