Criminal Appeal No.33 of 1996

22nd June, 2000

Petitioner Counsel: Shri M.R. DAGA, RAJENDRA DAGA & A.N. BADAR
Respondent Counsel: Shri A.M. BADAR

Cases Cited:
Khatri and others V. State of Bihar, 1981 Cri.L.J. 470 [Para 7,15]
Suk Das and another V. Union Territory of Arunachal Pradesh, AIR 1986 SC 991 : 1986 Cri.L.J. 1984 [Para 8,15,16]
Omprakash V. State of Rajasthan, 1989 (2) Crimes 244 [Para 9,16]
Mool Chand V. The State, 1990 Cri.L.J. 682 [Para 10,17]

JUDGMENT

JUDGMENT :- Appellant Hiraman s/o Sakharam Borkar has preferred the instant appeal against the order of conviction and sentence passed upon him by the learned Additional Sessions Judge, Bhandara, in Sessions Trial No.158/94. The learned Additional Sessions Judge, by his Judgment and Order dated 22.8.1995, convicted the appellant of the offence under Section 376 I.P.C. and sentenced him to suffer rigorous imprisonment for ten years and to pay a fine of Rs.500/- or in default, to suffer simple imprisonment for five months more.

2. The case of the prosecution is as follows :

(a) Victim Vandana, who was aged 12 years at the time of incident, was a student of 7th Standard and she was residing with her parents Rajkumar and Sushilabai at village Ambadi. Accused-appellant Hiraman was also the resident of the same village. The accused-appellant is the grandfather of Vandana by relation. Some time prior to the incident, the father of Rajkumar had expired. So the family of victim was observing mourning. On 24.8.1994, Vandana did not go to the School. She was at her house only playing with her maternal cousin Dipali. The daughter of the accused-appellant by name Joshila had come to Ambadi alongwith her female child Karishma. Vandana visited the house of the accused-appellant to play with Karishma. Since Karishma was not at the house of the accused-appellant, Vandana and Dipali passed some time with one Ashwini, who was the tenant of the accused-appellant. Then Ashwini went out in connection with her job of delivering bidis. So Vandana and Dipali proceeded towards the house of Dipali. At this juncture, the accused-appellant, who was present at his house and was lying on a cot, called Vandana and asked Dipali to go to her house alone. The accused-appellant then asked victim Vandana to pick his grey hair. Vandana, sitting by the side of the cot of the accused-appellant, started picking the hair of the accused. When Vandana was very close to the accused-appellant, he started rubbing his hands on the whole body of Vandana. He also started moving his hands on her back, chest and abdomen. On enquiry by Vandana with the accused as to what was he doing, the accused asked her to keep quiet and thereafter he inserted his palm in the underwear of Vandana and started fondling her Vagina. Vandana was stunned. The accused-appellant then lifted Vandana and took her in the kitchen. He removed her underwear and gagged her mouth. He laid her on the floor, lay on her body and inserted his organ in her vagina. Vandana started getting pain in the vagina. After competing the sexual act as above, the accused-appellant threatened Vandana not to disclose the incident to any one and also tried to allure her saying that he would give Rs.10/-. The accused-appellant then brought Vandana out of the door. Vandana was crying. One Sitabai was passing from the lane in front of the house of the accused. She saw the accused bringing out Vandana crying. On enquiry with Vandana, she disclosed to Sitabai that she was raped by the accused-appellant. The private part of Vandana was bleeding and her underwear was also blood-stained. Sitabai went in the village to inform the mother of Vandana. The aunt of Vandana named Kantabai was present at the house. Sitabia informed her about the rape on Vandana. Kantabai visited Vandana and found that Vandana was crying and noticed the bleeding from her vagina. Some other women also noticed Vandana crying. The people gathered. Vandana was taken to village Chourasta. She also disclosed the act of the accused to her mother Sushila. The accused-appellant was in a readiness to flee, but the villagers caught hold of him. Vandana was shifted to General Hospital, Bhandara. The police was informed. The police arrived at village Ambadi and arrested the accused, who was till then in the custody of the villagers.

(b) Victim Vandana was medically examined by Dr.(Mrs.) Khedikar, who found a fresh tear in the hymen and also on the vagina wall of Vandana. Dr.(Mrs.) Khedikar opined that the girl was subjected to rape. A.P.I. Gedam conducted the investigation. During the course of investigation, the blood-stained quilt and bed-sheet as well as blood-stained earth came to be attached from the house of the accused-appellant. The articles were referred to Chemical Analyzer. On completion of the investigation, the accused stood charge-sheeted.

3. The learned Judicial Magistrate First Class, Bhandara, committed the case to the Court of Session for the trial of the accused. The learned 2nd Additional Sessions Judge, Bhandara, framed the charge of the offence under Section 376 I.P.C. The charge was read over and explained to the accused and he pleaded not guilty. The defence of the accused was of total denial. He claimed enmity with the father of the victim and contended that on account of the enmity, he was falsely implicated.

4. The evidence was recorded. On considering the evidence and arguments advanced by the learned Additional Public Prosecutor and the defence raised by the accused, the learned Additional Sessions Judge delivered the aforesaid Judgment, which is impugned in this appeal. The record does not make it clear as to whether the accused-appellant had also advanced the arguments.

5. When the appeal came up for hearing before this Court, the learned counsel for the accused-appellant invited my attention to the fact that although the legal aid was first provided to the accused-appellant in the Court of Session, at the trial when the counsel engaged by the Legal Aid Committee for the accused expressed her inability to conduct the case in absence of the copies of challan, the learned Additional Sessions Judge directed the accused to conduct the examination and thereafter when the counsel found it difficult to conduct the case and filed a pursis to withdraw her vakalatnama, the learned Judge allowed her to do so and did not provide the further legal aid to the accused, who remained unrepresented during the whole trial.

6. The provision of Section 304 Cr.P.C., to which a reference is made by the learned counsel for the accused-appellant, lays down that where in a trial before the Court of Session, the accused is not represented by a pleader and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State. In the rules regarding the legal aid to unrepresented accused persons in cases before the Court of Session, the unrepresented accused person is defined as an indigent person, who, in the opinion of the Court, has no means to engage a legal practitioner of his own for the conduct of his case before the Sessions Court.

7. The learned counsel for the accused-appellant cited some cases on the point of providing legal aid to the unrepresented accused. The first one is Khatri and others V. State of Bihar and others, 1981 Cri.L.J. 470. The authority enunciates that the right to free legal services is clearly an essential ingredient of reasonable, fair and just procedure for a person accused of an offence and it is implicit in the guarantee of Article 21 of the Constitution. As per this authority, the State is under a constitutional mandate to provide free legal aid to the accused, who is entitled to secure legal services on account of indigence and whatever is necessary for this purpose has to be done by the State.

8. The next authority is Suk Das and another V. Union Territory of Arunachal Pradesh, AIR 1986 SC 991 (1986 Cri.L.J. 1084). The authority lays down that a free legal assistance at State cost is a fundamental right of a person accused of an offence which may involve jeopardy to his life or personal liberty. This fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Article 21 of the Constitution.

9. The third authority cited is Omprakash V. State of Rajasthan and another, 1989 (2) Crimes 244. In this cited case, the accused was not provided with a copy of complaint and no legal aid was given to him. It was held that the conviction was not sustainable.

10. The last ruling cited by the learned counsel for the accused-appellant is Mool Chand V. The State, 1990 Cri.L.J. 682. In this cited case, no counsel was provided to the accused at State expense, though he was entitled to legal aid. It was held that it was a case of grave illegality.

11. The learned counsel for the accused-appellant pointed out Exhibit 8, which is an order of Legal Aid Committee, Bhandara, engaging the counsel for the accused at the expenses of State. Exhibit 8 clearly indicates that the accused-appellant was indigent. The learned counsel for the accused-appellant further submitted that the counsel engaged by the Legal Aid Committee for the accused made an application on 25.7.1995 for the supply of copies of challan to her. Instead of supplying copies, the learned Judge passed the order "Refer to LAC", meaning thereby the counsel was directed to make a reference to Legal Aid Committee. Then on 3.8.1995, on which date the case was fixed for evidence, the learned counsel for the accused, who was engaged by the Legal Aid Committee, again applied vide Exhibit 18 for the adjournment of the case, contending that the copies of challan were not supplied to her and in absence of the copies of challan, she was unable to defend the case. The learned Judge rejected this application and directed the accused to conduct the examination in person. Thereafter the learned counsel vide pursis Exhibit 19 filed on the same date, withdrew her vakalatnama, stating therein that it was very difficult for her to defend the case as the copies of challan were not supplied. The learned Judge endorsed on the pursis as "file". Thus the learned Judge allowed the counsel for the accused-appellant to withdraw her vakalatnama. Thereafter no further legal aid was provided to the accused and the accused remained unrepresented and he conducted the trial in person.

12. The learned counsel for the accused-appellant canvassed that it was incumbent upon the learned Additional Sessions Judge to supply the copies of challan to the counsel engaged by the Legal Aid Committee for the accused and ultimately to give legal assistance to the accused. He further contended that since the accused was unrepresented during the whole trial, he was prejudiced in putting forward his defence. The learned Additional Public Prosecutor pointed out that after the case was committed to the Court of Session, the copies of challan were supplied to the counsel for the accused on 3.2.1995 and the counsel for the accused has made a necessary endorsement of receipt of copy of charge-sheet on the charge-sheet itself. The endorsement dated 3.2.1995 on the charge-sheet shows that the copy of charge-sheet was received by Advocate Shri M.M. Gulhane on behalf of the accused. The learned Additional Public Prosecutor thus canvassed that before the counsel was engaged for the accused by the Legal Aid Committee, the accused had already engaged Advocate Shri Gulhane as his Private Counsel. He also further canvassed that Advocate Shri. Gulhane had not withdrawn his vakalatnama. Thus, as per the learned Additional Public Prosecutor, the court did not fail in its duty to supply the copies to the accused.

13. The learned Additional Public Prosecutor further pointed out that the counsel engaged by the Legal Aid Committee for the accused applied for the supply of copies after the examination of the first witness for the prosecution commenced. The first witness for the prosecution is prosecutrix Vandana, whose evidence is marked as Exhibit 13, whereas the application moved by the counsel for the accused is at Exhibit 19. According to him, since the counsel for the accused committed delay in applying for the supply of copies, the Court was justified in proceeding with the case and that was with a view to have a speedy trial.

14. I am unable to agree with the submission of the learned Additional Public Prosecutor that the counsel for the accused had committed delay in applying for the supply of copies. The evidence of prosecutrix Vandana commenced on 3.8.1995. But it is not that the counsel for the accused applied for the copies for the first time on 3.8.1995. Earlier to that also, the learned counsel had presented one application to the Court for the supply of copies on 25.7.1995. That application is not marked as Exhibit. The learned Judge passed the order on that application as "Refer to LAC" ( "LAC" means Legal Aid Committee ). No doubt, the copies were received by the counsel engaged by the accused privately earlier, to the appointment of the counsel of Legal Aid Committee. The counsel engaged privately was Advocate Shri. M.N. Gulhane and an endorsement on the charge-sheet shows that he had received the copies of challan on 3.2.1995. However, it is not known whether Advocate Shri. Gulhane handed over those copies to the accused or his counsel engaged by Legal Aid Committee. The learned Additional Sessions Judge did not bother to get it known whether the accused had received back the copies of challan from his counsel engaged by him earlier privately. The learned Judge could have verified the fact from Advocate Shri. Gulhane and in case it was found that the Advocate had not handed over the copies to the accused after the counsel was engaged for him by the Legal Aid Committee, the Judge could have directed Advocate Shri. Gulhane to hand over the copies to the accused or the newly appointed counsel. The accused was in custody. The fact that a counsel was engaged by the Legal Aid Committee shows that he was indigent. So it was not expected that he would approach his earlier counsel and obtain the copies from him. The learned Judge could have arranged to supply the copies to the accused or his counsel by directing Advocate Shri. Gulhane or could have arranged to supply fresh copies by issuing suitable directions. But, instead of doing so, he passed the above-said order directing the counsel to refer the matter to Legal Aid Committee. Then on 3.6.1995, when the learned counsel for the accused engaged by the Legal Aid Committee applied to the Court vide Exhibit 18 for an adjournment expressing her inability to conduct the case in absence of copies of challan, the Judge straightway rejected the said application and directed the accused to conduct the examination in person. This is a novel way to deal with the criminal trial in which the accused is indigent.

15. Since the above-said application Exhibit 18 was rejected by the court and the accused was directed to conduct the examination of the witnesses in person, the learned counsel engaged by the Legal Aid Committee, by filing a pursis Exhibit 19, withdrew her vakalatnama. As aforesaid, the learned Judge passed the order on this pursis as "file" and thus allowed the withdrawal of vakalatnama. Obviously thereafter the accused remained unrepresented. The record does not indicate that the learned Additional Sessions Judge found that the counsel engaged by the Legal Aid Committee was avoiding to conduct the case on behalf of the accused. Khatri and others v. State of Bihar and others, 1981 Cri.L.J. 470, enunciates that the Magistrate or the Sessions Judge, before whom the accused appears, is under an obligation to inform the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of State. Suk Das and another v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991, also reiterates the above proposition. Thus the duty is cast on the Magistrate or the Sessions Judge to inform the accused concerned about his entitlement to have engaged a counsel at the cost of State. The rules regarding the legal aid to unrepresented accused persons in cases before the Courts of Session also provide the same thing. In the instant case, when the learned Judge allowed the counsel engaged by the Legal Aid Committee to withdraw the vakalatnama, he should have again apprised the accused of the fact that he was entitled to the services of the counsel at the cost of State and on the accused's giving consent, he should have referred the matter again to the Legal Aid Committee for engaging another lawyer. Instead of doing so, he shut the doors of justice to an indigent person, who was in custody, and left him unrepresented. The course adopted by the learned Additional Sessions Judge is against the spirit of the aforesaid provisions and rules and the accused was, therefore, deprived of the constitutional safeguard. In a zeal to have speedy trial, the learned Judge ignored the constitutional mandate and denied the justice to the accused. The trial held by him, therefore, cannot be said to be a trial guaranteed by the Constitution.

16. The learned counsel for the accused-appellant submitted that in Suk Das and another v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991, wherein the order of conviction passed against the accused concerned was set aside, no retrial was ordered and the accused in that case were directed to be reinstated in service. The learned counsel submitted that the result of setting aside the conviction in the present case also would be the acquittal of the accused-appellant and no retrial is warranted. However, the reading of the case cited above would make it clear that their Lordships have in clear terms enunciated that the result of quashing the conviction of the appellants would be that the appellants would have to be tried again in accordance with law after providing free legal assistance to them at the State cost but declined to direct the retrial in the peculiar facts and circumstances of that case. The facts of the present case, looking to the gravity and the nature of allegations, are not such that after quashing the conviction and sentence, no retrial should be held. In Omprakash v. State of Rajasthan and another, 1989 (2) Crimes 244, also, after the conviction and sentence of the accused were set aside, the accused was not retried. But the offence involved in this cited case was minor. In the present case, the offence involved is a serious one.

17. In view of the above discussion, the retrial of the accused-appellant by furnishing a legal aid to him after quashing and setting aside the order of conviction and sentence, would have been the proper course. However, the learned counsel for the accused-appellant requested that instead of remanding the case to the Trial Court, the accused-appellant be released by reducing his sentence to the period already undergone. In this connection, he has cited Mool Chand v. The State, 1990 Cri.L.J. 682. In this cited case also, the accused was in custody all through the trial and he was not provided with any counsel at the State expense and he could not engage any counsel of his own. The accused was a very poor person. Non-furnishing the legal aid to the accused was taken to be a grave illegality in the trial, but in view of the request of the accused, instead of ordering a fresh trial, the sentence was modified and the accused was sentenced to the period already undergone.

18. In the present case, the order of conviction and sentence was recorded against the accused-appellant in the year 1995. Today we are in the year 2000. If the remand is ordered, the problem would be whether all the witnesses for the prosecution would be available. The accused-appellant is in custody since 24.8.1994. The report of the Jail Authorities is called and the report submitted by the Authorities shows that the total sentence undergone by the accused-appellant upto 31.5.2000 including the period of remission granted to him is 8 years, 8 moths and 8 days and the probable date of his release is in the next year. Taking this aspect into consideration together with the grave illegality committed by the learned Additional Sessions Judge in not providing the legal aid to the accused-appellant, though he was entitled to the same and allowing him to remain unrepresented throughout the trial, I am of the view that this is a fit case in which the request of the accused-appellant for reducing his sentence to that for the period undergone should be accepted. Hence, the following order :

19. The appeal is partly allowed. The order of conviction passed against the accused-appellant for the offence under Section 376 I.P.C. shall remain as it is. However, the sentence passed upon him is modified and the same is reduced to the period already undergone by him. The accused-appellant be released forthwith from Jail if not required to be detained in any other case.

Appeal partly allowed.