IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA WEDNESDAY, THE 5TH JANUARY 2011 / 15TH POUSHA 1932 CRL.A.No. 552 of 2010(D) ------------------------ SC.32/2009 of IVTH ADDITIONAL SESSIONS COURT (ADHOC II), THODUPUZHA. .................... APPELLANT(S): -------------- MANI, C.NO.4469,CENTRAL PRISON, THIRUVANANTHAPURAM. BY ADV. ADV.THOMSTINE K.AUGUSTINE[STATE BRIEF] RESPONDENT(S): --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ADV. PUBLIC PROSECUTOR SRI.M.R.VENUGOPAL. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05/01/2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.HEMA, J. ----------------------------------------------- Crl. Appeal No.552 of 2010 ----------------------------------------------- Dated 5th January, 2011. J U D G M E N T This appeal arises from the conviction and sentence passed against appellant under Section 307 of the Indian Penal Code to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.25,000/- and in default of payment of fine to undergo simple imprisonment for a further period of one year. Fine if recovered was directed to be paid as compensation to the injured. Set off was allowed under Section 428 of the Criminal Procedure Code. 2. According to prosecution, on 14.6.2008, at about 7.15 p.m., due to previous enmity of accused against PW5, accused stabbed him on the left side of the stomach and inflicted injury in attempt to commit murder. To prove the prosecution case, PW1 to PW12 were examined and Exts.P1 to P14 and MO1 to MO7 series were marked. 3. The accused was questioned and he denied all the circumstances and evidence appearing against him. He stated that he is an Adivasi. He is living by selling forest produce and doing coolie work. There was some quarrel between his wife Crl.Appeal No.552/10 2 and the wife of PW5, the injured. For settlement, PW5 called him to his house. When he went there for amicable settlement, he was assaulted by PW5 and his wife and there was a scuffle. PW5 sustained injuries with the knife, which he was holding. PW5 had enmity towards accused since he sustained a huge expense for his treatment. The appellant does not have any property or any relatives who can help him and therefore, he could not convince the court about his innocence. 4. The trial court, on analysis of the evidence on record found that prosecution proved its case and that accused committed offence under Section 307 of the Indian Penal Code. The trial court also found that the accused attempted to commit murder by stabbing PW5 thrice and he sustained injuries, which were fatal. 5. The accused was undefended and hence, Sri.Thomstine K.Augustine was appointed as State Brief. Heard both sides and perused the records. Learned counsel for accused submitted that no independent witness was examined Crl.Appeal No.552/10 3 in this case, even though according to prosecution, CW3 was an independent witness. She is residing near the place of occurrence and the incident took place in front of her house. PW4 and PW6 were eye witnesses. PW4 is a close friend of PW5, and PW6 is wife of the injured, PW5. PW4 has admitted that he is residing half a kilometer away from the place of occurrence. It is also submitted that the weapon did not contain any blood. The weapon is stated to be recovered on a statement given by the accused. 6. Learned Public Prosecutor submitted that PW4 to PW6 have given evidence consistently with each other and it is supported by medical evidence also. PW5 sustained a serious injury and the conviction entered against appellant is only sustainable, it is argued. 7. On hearing both sides and on going through the records, it appears to me that accused did not get effective legal aid to contest the matter. The accused requested the court for legal aid and it appears that a counsel defended the Crl.Appeal No.552/10 4 case on behalf of appellant. But, cross examination of the witnesses will reveal that there was practically no cross examination or challenge on the evidence. While questioned under Section 313 of the Criminal Procedure Code itself, accused stated that he is an adivasi without any support or financial background and he could not convince the court about his innocence. 8. I am satisfied, on a perusal of records that the appellant did not get effective legal aid to contest the matter. The accused has a case that PW5 called him to his house to settle a dispute and he was attempted to be attacked by PW5 from his house. In the meantime, PW5 sustained an injury with the weapon used by PW5 himself. PW5 sustained a very serious injury, which is penetrating, which caused 3 rib fracture. The weapon is also sufficiently long. Hence, it is likely that the weapon will be sufficiently stained with blood. But, the report of the Chemical Analyst shows that there was no sufficient blood and hence presence of blood could not be ascertained. But, Crl.Appeal No.552/10 5 these facts were not brought out in cross examination and confronted with the Investigating Officer or other witnesses. It is only in the appellate stage that these facts are submitted. This needs a probe. 9. It is also to be seen that there is some dispute regarding the place of occurrence. The witnesses ought to have been cross examined with respect of the place where the incident happened. The scene mahazar may throw sufficient light on the place where the incident occurred, but those facts were brought out in evidence by the defence lawyer during trial. To support the defence version that incident happened in PW5's house, practically nothing was asked to the witnesses and no materials are elicited in the cross examination which ought to have been done. This appears to have happened because of the inexperience of the counsel, who defended the case of appellant who had no financial background and who sought for legal aid free of cost. 10. The non examination of the independent witness Crl.Appeal No.552/10 6 is also material, but no questions are put in these lines to the Investigating Officer. No cross examination is made regarding importance of examination of the independent witness, her presence at the scene etc. So also, as pointed out by the learned defence counsel, availability of light is very important. In the F.I. statement, the incident is seen in the light of a torch, but in evidence, it is mentioned that there was moon light as well as light from neighbouring house. There are several aspects which were to be explored during trial, but nothing effective was done. I feel that the accused did not get sufficient legal aid and a farce of a trial was conducted. I am not going deeper into the various other aspects which are relevant for consideration, since a remand will be necessary and any observation made by this court may prejudice either of the parties. 11. The very reason that the accused did not get sufficient legal aid itself is a ground to set aside the conviction and sentence. A criminal trial cannot be a drama. The court Crl.Appeal No.552/10 7 must be satisfied that the accused is defended properly by the counsel especially when legal aid is given by the court at the cost of State. The court ought to have shown more responsibility to appoint a sufficiently experienced lawyer to defend the accused, taking into consideration the seriousness of the offence. In the absence of it, the accused can be said to have denied even the fundamental right guaranteed under the Constitution of India to get legal aid-Legal aid means, effective legal aid. 12. In the result, I find that the conviction and sentence are vitiated and those are liable to be set aside and I do so. Hence, the following order is passed : (i) The conviction and sentence passed against appellant under Section 307 of the Indian Penal Code are set aside. (ii) The case is remanded to the trial court for fresh trial and disposal in accordance with law, in the light of the observations made in this order. Crl.Appeal No.552/10 8 (iii) If any request is made by accused to cross examine any witness, the trial court shall give an opportunity to appellant to do so. (iv) The trial court is directed to appoint a sufficiently experienced lawyer who will be able to conduct a case involving the offence under Section 307 of the Indian Penal Code. This appeal is allowed. K.HEMA, JUDGE. tgs