1. Sunil Kumar challenges the impugned judgment dated 27th July, 2001 convicting him for offences punishable under Section 366, 368, 376 IPC and the order on sentence dated 3rd August, 2001 directing him to undergo rigorous imprisonment for a period of seven years with a fine of Rs.500/- each for the offences punishable under Section 366/368/376 IPC.

2. The prosecution case springs out of a complaint lodged on 12th March 1998 by PW-11, father of the prosecutrix, wherein he stated that on 9th March, 1998 around 8:30 P.M., PW-1the prosecutrix left the home without informing anyone. On 10th March, 1998, he had lodged a missing complaint vide DD No. 9. He tried to search for her but he could not find her. He also stated that he suspected that Sunil, who stays opposite to his house, had enticed her. On the basis of his statement Ex. PW-5/A, FIR number 191/1998 was registered at PS Ambedkar Nagar under Section 363 IPC. On 27th March, 1998, the prosecutrix PW-1 was recovered from Anand Vihar bus stand. Sunil Kumar was arrested by PW-12 HC Balbir. Both the prosecutrix and Sunil Kumar were medically examined. Statement of the prosecutrix was recorded under Section 164 Cr.P.C. Charges for offences punishable under Sections 363/368/376 IPC were framed against Sunil Kumar. After recording statements of 12 witnesses including the prosecutrix, learned trial court convicted the appellant as above.

3. Learned amicus curiae, at the very outset, submits that since the appellant was not given the right to legal aid, the trial was conducted in violation of Article 21 of the Constitution of India. In order to substantiate her submission, she points out that the appellant was not given an adequate opportunity to cross examine the prosecution witnesses and since he was not represented by a counsel, none of the prosecution witnesses were cross examined. She further stated that out of the 12 prosecution witnesses, only one prosecution witness being PW-10 Dr. Kirti Ram, Record Clerk, AIIMS could be cross examined.

4. A perusal of the order sheets of the learned Trial Court reveals that when arguments were heard on charge, counsel for the appellant was not present. The order sheet dated 29th April, 1999 notes that the counsel for the appellant entered appearance only after charge was framed and since his vakalatnama was not on record, production of the appellant was directed who had already been sent to custody. On the next date, learned counsel for appellant took the plea of juvenility which was rejected vide order dated 25th May, 1999 in view of the age of the juvenile noted in the conviction slip. The matter was adjourned for several dates as the CFSL report was not received. On 27th July, 1999, statement of PW-1 was recorded in part in the pre-lunch session however post lunch learned counsel for the appellant was not present hence the matter was adjourned to the next date i.e. 30th August, 1999 on which date also since despite pass over, counsel for the accused was not present as he was not well, witnesses were examined and discharged. Thereafter, no counsel appeared for the appellant and at no stage, the appellant was informed the right to legal aid. Examination-in-chief of the witnesses was recorded and no cross-examination on behalf of the appellant was conducted as the appellant had no counsel. It is thus evident that during the course of trial, the appellant was not represented by any lawyer.

5. The issue with respect to the legal consequences on failure to provide legal aid to an accused was dealt with by the Supreme Court in the decision reported as (2012) 9 SCC 1 Mohd. Ajmal Amir Kasab v. State of Maharashtra wherein it was held:-

“477. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the constitutional duty of the court to provide him with a lawyer