2025 INSC 225 Crl.A.259-260/2019 | Page 1 of 47

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS .259-260 OF 2019

SOVARAN SINGH PRAJAPATI … APPELLANT(S)

VERSUS

THE STATE OF UTTAR PRADESH … RESPONDENT(S)

O R D E R

SANJAY KAROL, J

1. These appeals arise out of judgment and order dated 1

st

October 2018 passed

by the High Court of Judicature at Allahabad in Capital Case No.2611 of 2017 and

Reference No.05 of 2017. The impugned judgment of the High Court confirmed the

judgment of conviction dated 28

th

February 2017, and the sentence of capital

punishment imposed vide judgment dated 1

st

March 2017 upon the appellant by the

Crl.A.259-260/2019 | Page 2 of 47

Additional Sessions Judge, Mainpuri in Sessions Trial No.377/2014, titled State v.

Sovaran Singh, under Sections 302 and 201 of Indian Penal Code 1860

1

.

FACTS AND PREVIOUS PROCEEDINGS

2. Brief Facts, as allegedly set out by the prosecution, are that in the intervening

night of 29

th

- 30

th

of June 2014, the appellant returned home in an inebriated state,

also carrying two bottles of liquor which he then consumed along with his father.

Sometime later, a quarrel ensued between them which led to the appellant slapping

his father, who was, as a result, injured in his ear. Thereafter, he demanded money

from his wife Mamta to procure more liquor which she denied. As such he trashed,

abused and eventually killed her. He also killed his daughter Sapna who was twelve

years old. Resultantly, FIR No.128 of 2014 was registered under Section 302 IPC

at P.S. Karhal, District Mainpuri. With the completion of the investigation, challan

was presented in the Trial Court and the appellant herein was put to trial.

3. Post-Mortem conducted by Dr. Rajesh Kumar Mishra (PW-3), found the

following injuries on both the deceased persons, as recorded by the High Court in

the impugned judgment:

“4. P.W. 3 Dr. Rajesh Kumar Mishra conducted post-mortem on

dead body of Mamta on 30.6.2014 at 4.25 PM. On external

examination, Doctor found her slim and weak with 146 cm height and

39.700 Kg in weight. Rigor mortis found present in lower segment of

body; eyes were half closed, mouth open, nail in-tact and bleeding from

nose and ear was noticed. P.W. 3 found following ante mortem injuries

on her person:

1

for short ‘IPC 1860’

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"1. Abrasion 3 cm x 2 cm on right side forehead, 1 cm

above eye brow, blackening present

2. Abrasion 3 cm x 4 cm just below right eye, blackening

present.

3. Abrasion 5 cm x 4 cm on left side of left eye,

blackening present. 4. Blood through nose and both

ears.

5. Abrasion 6 cm x 3 cm on right side of neck, 1 cm below

right mandible.

6. Abrasion 3 cm x 2 cm over anterior aspect of right

shoulder, blackening present.

7. Abrasion 5 cm x 3 cm on right side of chest, 5 cm

below left nipple.

8. Lacerated wound 5 cm x 3 cm on left side of vagina,

exposing uterus and bladder."

5. On internal examination, right eye was black; lips were swollen

and black in colour; tongue inside mouth; ecchymosis present in neck

muscles; hyoid left corner fractured; weight of right lung 340 gm (Pale)

and left 320 gm; both chambers of heart empty; blood present in

peritonial cavity; stomach contained about 150 gm semi digested food

matter; small intestine contained semi digested food particles and large

intestine contained faecal matter and gases; liver was lacerated 5 cm

and pale; spleen weighed 150 gm and pale; kidneys-pale, right kidney

weighed 150 gm and left 130 gm, urinary bladder and urethra were

ruptured. In the opinion of Doctor, about one day has passed since the

death. Cause of death was due to acute haemorrhagic shock as a result

of ante mortem injuries, causing internal bleeding. Postmortem report

prepared by P.W. 3 is Ex. Ka. 2.

6. The same Doctor, P.W. 3 examined dead body of deceased Sapna

at about 04:40 PM on 30.06.2014. According to him, deceased was aged

about 12 years, 22.400 kg in weight. Rigor mortis was present; eyes and

mouth closed and lips swollen. He found following ante mortem

injuries on her person.

“1. Face and fore head swollen, right black eye.

2. Abrasion 6 cm x 4 cm on right side of face, 2 cm anterior

to right ear.

3. Lips swollen and teeth mark laceration in inner side of

lips.

4. Abrasion 5 cm x 3 cm on left side of face anterior to left

eye.

5. Abrasion 1 cm x 1 cm on anterior aspect of left fore arm,

3 cm above wrist joint, bluish.

6. Abrasion 1 cm x 1 cm on posterior aspect of base of index

finger (II Metacarpo-phallangeal joint), bluish.

7. Lateral fold of vagina wide open, mens (menstrual) and

labia swollen, vagina congested and lacerated, particularly

some sticky wheatish substance present, slide prepared.

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8. Abrasion 2 cm x 1 cm on anterior lateral aspect of right

knee, bluish coloured."

7. On internal examination, brain was found congested with 1.100

kg in weight and haematoma was present; bleeding found from nose

and left ear; right lung weighed 300 gm and was congested and left lung

weighed 250 gm; left side heart was empty and right side was full;

stomach contained 200 gm semi solid food content, mucous normal, no

foul smell; small intestine contained semi digested food material and

large intestine had faecal matter and gases and liver was congested. In

the opinion of doctor, death had occurred due to head injury/ante-

mortem injuries. P.W. 3 had prepared post-mortem report Ex. Ka-3.”

4. The Trial Court considered the arguments of both the parties and eventually

held that the prosecution had proved its case beyond reasonable doubt and as such,

convicted the appellant of having committed a double murder. On the point of

sentence, the matter was put up the following day, i.e., on 1

st

March 2017 and, having

considered a host of judicial pronouncements, evaluating the aggravating and

mitigating circumstances, the sentence of death by hanging was imposed qua

Section 302 IPC and seven-year imprisonment for the offence punishable under

Section 201 IPC.

5. On appeal, the High Court confirmed the sentence of death imposed by the

Trial Court, accounting for all the attending aggravating and mitigating

circumstances.

6. We have heard learned counsel for the parties, Mr. Rajiv Shakdher, learned

Senior Counsel for the appellant and Mr. Divyesh Pratap Singh for the State. At the

outset, it was clarified by the learned Senior counsel that under assail was the finding

of conviction as also the sentence. In taking us through the record, numerous lapses

have been pointed out, which go to the root of the matter, calling into question

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credibly, the justiciability of the conviction as well as the sentence imposed on the

appellant.

Purpose of Trial

7. It is important to restate the purpose of trial. A trial, of course, is a fact-finding

exercise wherein both parties, i.e., the prosecution and defence, after investigation

by the competent authorities, present their versions of events and the role and duty

of the Court to determine the truth. While undertaking such determination, the Court

is not only to look at the evidence at hand but also ensure that all consideration

balances the demand for justice and the rights of the accused. The American

Jurisprudence 2

nd

Ed. 2007, in the following terms, captures the purpose of a trial:

“The purpose of trial is to determine the validity of the allegations. The

objective is to secure a fair and impartial administration of justice

between the parties to the litigation and not the achievement of a

hearing wholly free from errors. Once a civil action has been instituted

and issue is joined upon the pleadings, there must be a trial on the issue

before a judgment may be rendered. Trial is not a contest between

lawyers but a presentation of facts to which the law may be applied to

resolve the issues between the parties and to determine their rights. It is

also not a sport; it is an inquiry into the truth, in which the general public

has an interest.”

8. The statutory mechanism regarding a trial before a Court of Session is

provided in the Code of Criminal Procedure, 1973

2

, under Chapter XVIII. The

process and mode of taking and recording evidence have been provided for in

Chapter XXIII. Chapter XXIV details the general provisions qua inquiries and

2

Abbreviated as Cr. P.C.

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trials. Herein, also provided is, the duty of the Court, in certain cases, to provide the

person standing trial before it, with legal aid at the expense of the State. Also

relevant here is Chapter XXVIII, which lays down the procedure for submission of

a death sentence awarded by a Court of Session to the High Court for confirmation.

9. This case raises questions of compliance with various basic requirements of

a fairly conducted trial, in accordance with well-established prepositions of law.

Fair Trial - A Guarantee under Article 21 of the Constitution of India

10. Fair and impartial administration of justice is a treasured right protected by

various enactments of law including, first and foremost, the Constitution, which

under Article 21 guarantees the Right to Fair Trial. In numerous pronouncements,

this Court has underscored the same.

10.1 A Three-Judge Bench of this Court in Vinubhai Haribhai Malaviya v.

State of Gujarat

3

, held as under:

“17. Article 21 of the Constitution of India makes it clear that the

procedure in criminal trials must, after the seminal decision

in Maneka Gandhi v. Union of India [Maneka Gandhi v. Union of

India, (1978) 1 SCC 248] , be “right, just and fair and not arbitrary,

fanciful or oppressive” (see para 7 therein). Equally, in Commr. of

Police v. Delhi High Court [Commr. of Police v. Delhi High Court,

(1996) 6 SCC 323 : 1996 SCC (Cri) 1325] , it was stated that Article

21 enshrines and guarantees the precious right of life and personal

liberty to a person which can only be deprived on following the

procedure established by law in a fair trial which assures the safety

of the accused. The assurance of a fair trial is stated to be the first

imperative of the dispensation of justice (see para 16 therein).

18. It is clear that a fair trial must kick off only after an investigation

is itself fair and just. The ultimate aim of all investigation and

inquiry, whether by the police or by the Magistrate, is to ensure that

3

(2019) 17 SCC 1

Crl.A.259-260/2019 | Page 7 of 47

those who have actually committed a crime are correctly booked,

and those who have not are not arraigned to stand trial. That this is

the minimal procedural requirement that is the fundamental

requirement of Article 21 of the Constitution of India cannot be

doubted. It is the hovering omnipresence of Article 21 over CrPC

that must needs inform the interpretation of all the provisions of

CrPC, so as to ensure that Article 21 is followed both in letter and in

spirit.”

(Emphasis supplied)

10.2 In the well-known ‘Best Bakery Case’ titled Zahira Habibulla H.

Sheikh v. State of Gujarat

4

, the Court, detailing various aspects of fair trial,

observed as under:

“35. This Court has often emphasised that in a criminal case the fate

of the proceedings cannot always be left entirely in the hands of the

parties, crimes being public wrongs in breach and violation of public

rights and duties, which affect the whole community as a community

and are harmful to the society in general. The concept of fair trial

entails familiar triangulation of interests of the accused, the victim

and the society and it is the community that acts through the State

and prosecuting agencies. Interests of society are not to be treated

completely with disdain and as persona non grata. Courts have

always been considered to have an overriding duty to maintain

public confidence in the administration of justice — often referred

to as the duty to vindicate and uphold the “majesty of the law”. Due

administration of justice has always been viewed as a continuous

process, not confined to determination of the particular case,

protecting its ability to function as a court of law in the future as in

the case before it. If a criminal court is to be an effective instrument

in dispensing justice, the Presiding Judge must cease to be a

spectator and a mere recording machine by becoming a participant

in the trial evincing intelligence, active interest and elicit all relevant

materials necessary for reaching the correct conclusion, to find out

the truth, and administer justice with fairness and impartiality both

to the parties and to the community it serves. Courts administering

criminal justice cannot turn a blind eye to vexatious or oppressive

conduct that has occurred in relation to proceedings, even if a fair

trial is still possible, except at the risk of undermining the fair name

and standing of the judges as impartial and independent adjudicators.

36. The principles of rule of law and due process are closely linked

with human rights protection. Such rights can be protected

4

(2004) 4 SCC 158

Crl.A.259-260/2019 | Page 8 of 47

effectively when a citizen has recourse to the courts of law. It has to

be unmistakably understood that a trial which is primarily aimed at

ascertaining the truth has to be fair to all concerned. There can be no

analytical, all-comprehensive or exhaustive definition of the concept

of a fair trial, and it may have to be determined in seemingly infinite

variety of actual situations with the ultimate object in mind viz.

whether something that was done or said either before or at the trial

deprived the quality of fairness to a degree where a miscarriage of

justice has resulted. It will not be correct to say that it is only the

accused who must be fairly dealt with. That would be turning a

Nelson's eye to the needs of the society at large and the victims or

their family members and relatives. Each one has an inbuilt right to

be dealt with fairly in a criminal trial. Denial of a fair trial is as much

injustice to the accused as is to the victim and the society. Fair trial

obviously would mean a trial before an impartial judge, a fair

prosecutor and atmosphere of judicial calm. Fair trial means a trial

in which bias or prejudice for or against the accused, the witnesses,

or the cause which is being tried is eliminated. If the witnesses get

threatened or are forced to give false evidence that also would not

result in a fair trial. The failure to hear material witnesses is certainly

denial of fair trial.

xxx

38. A criminal trial is a judicial examination of the issues in the case

and its purpose is to arrive at a judgment on an issue as to a fact or

relevant facts which may lead to the discovery of the fact issue and

obtain proof of such facts at which the prosecution and the accused

have arrived by their pleadings; the controlling question being the

guilt or innocence of the accused. Since the object is to mete out

justice and to convict the guilty and protect the innocent, the trial

should be a search for the truth and not a bout over technicalities,

and must be conducted under such rules as will protect the innocent,

and punish the guilty. The proof of charge which has to be beyond

reasonable doubt must depend upon judicial evaluation of the totality

of the evidence, oral and circumstantial, and not by an isolated

scrutiny.”

(Emphasis supplied)

10.3 In Sidhartha Vashisht v. State (NCT of Delhi)

5

, this Court observed :

“197. In the Indian criminal jurisprudence, the accused is placed in

a somewhat advantageous position than under different

jurisprudence of some of the countries in the world. The criminal

justice administration system in India places human rights and

dignity for human life at a much higher pedestal. In our

5

(2010) 6 SCC 1

Crl.A.259-260/2019 | Page 9 of 47

jurisprudence an accused is presumed to be innocent till proved

guilty, the alleged accused is entitled to fairness and true

investigation and fair trial and the prosecution is expected to play

balanced role in the trial of a crime. The investigation should be

judicious, fair, transparent and expeditious to ensure compliance

with the basic rule of law. These are the fundamental canons of our

criminal jurisprudence and they are quite in conformity with the

constitutional mandate contained in Articles 20 and 21 of the

Constitution of India.”

(Emphasis supplied)

10.4 Observations in J. Jayalalithaa v. State of Karnataka

6

, are important for

our purposes. The relevant extracts are :

“28. Fair trial is the main object of criminal procedure and such

fairness should not be hampered or threatened in any manner. Fair

trial entails the interests of the accused, the victim and of the society.

Thus, fair trial must be accorded to every accused in the spirit of the

right to life and personal liberty and the accused must get a free and

fair, just and reasonable trial on the charge imputed in a criminal

case. Any breach or violation of public rights and duties adversely

affects the community as a whole and it becomes harmful to the

society in general. In all circumstances, the courts have a duty to

maintain public confidence in the administration of justice and such

duty is to vindicate and uphold the “majesty of the law” and the

courts cannot turn a blind eye to vexatious or oppressive conduct that

occurs in relation to criminal proceedings.

29. Denial of a fair trial is as much injustice to the accused as is to

the victim and the society. It necessarily requires a trial before an

impartial Judge, a fair prosecutor and an atmosphere of judicial calm.

Since the object of the trial is to mete out justice and to convict the

guilty and protect the innocent, the trial should be a search for the

truth and not a bout over technicalities and must be conducted under

such rules as will protect the innocent and punish the guilty. Justice

should not only be done but should be seem to have been done.

Therefore, free and fair trial is a sine qua non of Article 21 of the

Constitution. Right to get a fair trial is not only a basic fundamental

right but a human right also. Therefore, any hindrance in a fair trial

could be violative of Article 14 of the Constitution. “No trial can be

allowed to prolong indefinitely due to the lethargy of the prosecuting

agency or the State machinery and that is the raison d'être in

prescribing the time frame” for conclusion of the trial.

30. Article 12 of the Universal Declaration of Human Rights

provides for the right to a fair trial what is enshrined in Article 21 of

6

(2014) 2 SCC 401

Crl.A.259-260/2019 | Page 10 of 47

our Constitution. Therefore, fair trial is the heart of criminal

jurisprudence and, in a way, an important facet of a democratic polity

and is governed by the rule of law. Denial of fair trial is crucifixion

of human rights…”

(Emphasis supplied)

10.5 This Court in Asha Ranjan v. State of Bihar

7

, written by Dipak Misra

J., (as his Lordship then was) referring to State of Haryana v. Ram Meher

8

,

summarized the conclusions drawn in the latter, as under :

“51. … Simultaneously, the concept of fair trial cannot be allowed

to such an extent so that the systemic order of conducting a trial in

accordance with Criminal Procedure Code or other enactments get

mortgaged to the whims and fancies of the defence or the

prosecution. The command of the Code cannot be thrown to the

winds. In such situation, as has been laid down in many an authority,

the courts have significantly an eminent role. A plea of fair trial

cannot be acquiesced to create an organic disorder in the system. It

cannot be acceded to manure a fertile mind to usher in the nemesis

of the concept of trial as such. The Court further observed that there

should not be any inference that the fair trial should not be kept on

its own pedestal as it ought to remain but as far as its applicability is

concerned, the party invoking it has to establish with the support of

established principles. The process of the court cannot be abused in

the name of fair trial at the drop of a hat, as that would lead to

miscarriage of justice.”

(Emphasis supplied)

10.6 From a studied analysis of the above decisions, the following principles

as to the meaning and import of fair trial, can be illustratively deduced :

(1) Fair and Just investigation is the starting point of the fair

trial process.

(2) This process is a triangulation of the rights of the accused,

the victim and the community that acts through the state

and prosecuting agencies.

7

(2017) 4 SCC 397

8

(2016) 8 SCC 762

Crl.A.259-260/2019 | Page 11 of 47

(3) Process of investigation and trial must be completed with

promptitude.

(4) The trial Judge has to play an active role in the search for

truth, which a trial, undoubtedly has to be.

(5) Bias of all nature, against the accused, the victim, the

witnesses; or the cause of/at trial, has to be eliminated.

(6) The process of fair trial is to be done to maintain public

confidence & uphold the majesty of law.

(7) The atmosphere in which a trial is to be conducted in a fair

manner has to be in an atmosphere of ‘judicial calm’.

(8) Unfair prolongation of trial is an affront to the ideal of fair

trial.

(9) The ideal of fair trial has protection in the Constitution and

in the international legal framework, as a basic human

right.

(10) The centripodal purpose of fair trial is to ensure that

injustice is avoided as far as possible, but equally ‘fair trial’

is not leveraged to a point which would hinder the

established procedure of Cr.P.C. In other words, the

command of the Code cannot be ignored at the behest of

the prosecution or defence, in the name of fair trial.

11. As is evident from the principles enunciated above, to secure a fair trial, is not

a solitary responsibility. The Judge; the investigator; the investigating agency; and

the counsel for either side, each have their own responsibility.

12. An inspection of the records of this case, reveals that on many points each of

the constituents responsible for a fair trial have in some way or another abdicated

their responsibility. Some of the points that we noticed:

(a) At the time of examination of the star witness of the prosecution (PW-

2), counsel of the defence was absent.

Crl.A.259-260/2019 | Page 12 of 47

(b) The statement of the accused under Section 313 of Cr.P.C. was

improperly recorded without all scenarios and circumstances being put

to him.

(c) The initial charge under Section 302 IPC against the appellant was

framed on 22

nd

December 2014 and then, an additional charge was

framed under Section 201 IPC on 27

th

August 2016. The delay of a year

and a half in adding a charge against the appellant is entirely

unexplained.

(d) The Legal Aid Counsel provided to the appellant was not only

appointed at a belated stage but also changed more than once during the

course of trial.

(e) The application under Section 311 Cr.P.C., while true, is a power which

has to be exercised judiciously, was rejected summarily and without

assigning any reason.

(f) On 21

st

February 2017, the defence counsel was changed and, yet, on

the same day, the defence evidence was closed on account of non-

production of witness.

(g) The accused being a person of considerably less means, did not have

access to an independent counsel/counsel of his own choice. As such,

he was entirely dependent on the counsel appointed for him by the

Court. The assistance given by such counsel on account of being not

present and changes/substitutions is rendered doubtful.

Crl.A.259-260/2019 | Page 13 of 47

13. At this juncture, we deem it appropriate to refer to certain orders, recorded

by the Trial Court in its daily status report, are as under:

Order dated 1

st

September 2015 reads as under:

“01.09.2015- Case called out. Accused Sobran Singh present from jail

in judiciary custody. Statement of PW-1 Rajnesh Kumar recorded. But

Accused Counsil not appeared for cross examination. The opportunity

of cross examinations is closed at 3.35 P.M. fix 17.09.2015 for

remaining evidence. Summon witnesses.

(A.S.J./F.T.C.)”

(Emphasis supplied)

Order dated 8

th

June 2016 is extracted below :

“08.06.2016- Case called out. Accused Sobran Singh present from jail

in judicial custody. Evidence of Pw-2 Km. Poonam recorded. But

Accused counsil not appeared for cross examination. Accused filed 18-

B application for providing Government Counsel and Sri Veer Pal

Singh Rathor appointed as Amicus Curie in this case as per list in the

office. He be informed accordingly. Fixed 24.06.2016 for cross

examination on PW-2. Advocate be informed accordingly.

(A.S.J./F.T.C.)”

(Emphasis supplied)

Order dated 10

th

June 2016 is extracted below :

“10.06.2016- Put up today. Accused counsel filled application 19-B for

strucking off the name from the list of Amicus Curie and to appoint any

other Advocate. According to the order passed on the application ‘File

taken up today on application of Ld. Amicus Curie appointed on

08.06.2016. As he has shown his in avaiablety to conduct the case, Sri

Naresh Chand Dixit is appointed as Amicus Curie as per list. He be

informed accordingly.

(A.S.J./F.T.C.)”

Order dated 25

th

July 2016 is extracted below :

“25.7.2016- Case called out. Accused Sobran Singh present from jail

in judicial custody. A.D.G.C. (Criminal) moved application No. 25 A

for framing charge under Section 201 I.P.C agaisnt the accused. Fixed

29.07.2016 for hearing of 25-A.

(A.S.J./F.T.C.)”

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Order dated 27

th

August 2016 is extracted below :

“27.8.2016- Case called out. Accused Sobran Singh present from jail in

judicial custody. charge framed against the accused Under Section 201

I.P.C. Charge Read over and explationed before the accused. Accused

denied the charge and claimed for trial. Fixed 03.09.2016 for remaining

evidence. summon witnesses.

(ASJ 1

st

)”

Order dated 1

st

February 2017 is extracted below :

“01.02.2017- Case called out. Accused Sobran Singh present from jail

in judicial custody. Statement of witness S.I. Sri Om Veer Singh has

been recorded as PW-6. Cross Examination of witness has been done

by Defence counsel. Application No. 32-B filled by the defence counsel

for summoning PW-1 and PW-2 for cross examination. Objected by

A.D.G.C. And endorsed that no prosecution evidences to be recorded.

Strongly opposed by defence counsel. Fixed 04.02.2017 for statement

Under Section 313 Cr.P.C. And hearing of 32-B application.

(A.S.J. 1

st

)”

Order dated 4

th

February 2017 is extracted below :

“04.02.2017- Case called out. Accused Sobran Singh present from jail

in judicial custody. Statement of accused Sobran Singh has been

recorded under Section 313 Cr.P.C. Fixed on 08.02.2017 for defence

argument.

(A.S.J. 1

st

)”

Order dated 18

th

February 2017 is extracted below :

“18.02.2017- Case called out accused present in J.C. But not present.

Counsel present heared on application 32-B brief order is passed on the

application. After lunch at 02:30 P.M. an application for time to adduce

defence witness 35-B moved by defence counsel. Order passed on the

application as “Vide order of even date today, application u/s 311

moved by Ld. counsel has been rejected. He sought time to adduce

arguments which was granted. After which, he has moved application

for providing defence evidence. if the Ld. Counsel produce the witness

on the date fixed he will be examined failing which matter will be

posted for Judgment after hearing the argument of prosecution.”

(A.S.J. 1

st

)”

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Order dated 21

st

February 2017 is extracted below:

“21.02.2017- Case called out. Accused person is present in Judicial

Custody. An application 36-B moved by the Ld. counsel for accused as

per order passed on the application “Application is rejected. As

apportunity has already been given”

At 12:00 P.M. present Sri Dalveer Yadav newly appoint counsel for the

accused. He states that no witness no present. D.E. Closed as on last

date it was ordered that if Ld. producees the witness on the date fixed

he will be examined failing which argument will be recorded.

Argument of prosecution recorded. Part argument of defence also

recorded. Put up after lunch for remaining argument of Ld. defence

counsel.

03:00 P.M. Present Ld. Counsel for defence. Arguments concluded. Put

up for Judgment on 28.02.2017 for judgment.”

Order dated 28

th

February 2017 is extracted below :

“28.02.2018

9

- Case called out. Accused in presented in Judicial

Custody from the evidence on record, I found that the prosecution has

proved the case against the accused beyond reasonable doubt both u/s

302 IPC and 201 IPC.

Accused has guilty and putup on 01.03.2017 for the point of sentence.

(A.S.J. 1

st

)”

Order dated 1

st

March 2017 is extracted below :

“01.03.2017- Case called out. Accused person present in Judicial

custody order passed on separate sheet 37-A.

Order

Convict Sobran Singh sentence to death for offence punishable

u/s 302 IPC accordingly the convict be hanged by neck till he is death.

Fine of Rs. 20,000/- to the convict is also imposed in default of payment

of fine, the convict shall undergo rigorous imprisonment for a period of

two months.

Convict Sobran Singh is further sentenced to seven years rigorous

imprisonment and fine of Rs. 5,000/- u/s 201 IPC in default of payment

9

It should be 2017 but is mentioned as 2018 in the Convenience Compilation

Crl.A.259-260/2019 | Page 16 of 47

of fine rigorous imprisonment for two month to the convict. Out of the

realized Rs. 20,000/- will be paid to the family of the deceased.

A copy of this order be sent to the Secretary, Legal Service

Authority, Mainpuri for deciding the quantum of compensation to be

awarded under the scheme refereed to in sub-section 1 of section 357-

A Cr.P.C.

(A.S.J. 1

st

)”

14. In this context, it is essential to delve into the responsibilities cast on each

unit.

(a) Duty of the Trial Court

15. On numerous occasions, this Court has highlighted the duty of a Trial Court

to be an active participant to seek out the truth in a given set of circumstances

ensuring that a balance is struck between the role and responsibility of prosecution

as also the rights of the accused. It would be helpful to refer to certain

pronouncements:

15.1 This Court in Pooja Pal v. Union of India

10

, observed :

“54…It was remarked as well that due administration of justice is

always viewed as a continuous process, not confined to the

determination of a particular case so much so that a court must cease

to be a mute spectator and a mere recording machine but become a

participant in the trial evincing intelligence and active interest and

elicit all relevant materials necessary for reaching the correct

conclusion, to find out the truth and administer justice with fairness

and impartiality both to the parties and to the community…”

15.2 Reference may once again be made to the Best Bakery Case (supra),

where in regard to the role of a Court, it was held :

10

(2016) 3 SCC 135

Crl.A.259-260/2019 | Page 17 of 47

“55. The courts, at the expense of repetition we may state, exist for

doing justice to the persons who are affected. The trial/first appellate

courts cannot get swayed by abstract technicalities and close their

eyes to factors which need to be positively probed and noticed. The

court is not merely to act as a tape recorder recording evidence,

overlooking the object of trial i.e. to get at the truth. It cannot be

oblivious to the active role to be played for which there is not only

ample scope, but sufficient powers conferred under the Code. It has

a greater duty and responsibility i.e. to render justice, in a case where

the role of the prosecuting agency itself is put in issue and is said to

be hand in glove with the accused, parading a mock fight and making

a mockery of the criminal justice administration itself.”

(Emphasis supplied)

15.3 In Bablu Kumar v. State of Bihar

11

, this Court observed :

“22. Keeping in view the concept of fair trial, the obligation of the

prosecution, the interest of the community and the duty of the court,

it can irrefragably be stated that the court cannot be a silent spectator

or a mute observer when it presides over a trial. It is the duty of the

court to see that neither the prosecution nor the accused play truancy

with the criminal trial or corrode the sanctity of the proceeding. They

cannot expropriate or hijack the community interest by conducting

themselves in such a manner as a consequence of which the trial

becomes a farcical one. The law does not countenance a “mock

trial”. It is a serious concern of society. Every member of the

collective has an inherent interest in such a trial. No one can be

allowed to create a dent in the same. The court is duty-bound to see

that neither the prosecution nor the defence takes unnecessary

adjournments and take the trial under their control. The court is

under the legal obligation to see that the witnesses who have been

cited by the prosecution are produced by it or if summons are issued,

they are actually served on the witnesses. If the court is of the

opinion that the material witnesses have not been examined, it

should not allow the prosecution to close the evidence. There can be

no doubt that the prosecution may not examine all the material

witnesses but that does not necessarily mean that the prosecution can

choose not to examine any witness and convey to the court that it

does not intend to cite the witnesses.”

(Emphasis supplied)

11

(2015) 8 SCC 787

Crl.A.259-260/2019 | Page 18 of 47

16. In the present facts, the Court ought to have been the first one to observe

and halt proceedings, given that counsel for the defence was absent on crucial

occasions such as the examination-in-chief and cross-examination of PW-1;

statement of PW-2 also was recorded in the absence of counsel for the accused; no

adequate opportunity was given to produce and examine defence witnesses; and

the examination of the accused under Section 313 was improper, inadequate and

incomplete. The course of action adopted by the Court was mechanical and in

complete ignorance of the rights of the accused and the overarching purpose of a

trial. It is true that the Court had provided an opportunity for the defence to produce

a witness but at the same time a condition was put that if on the said date the witness

is not produced, the opportunity would be closed. This approach is in ignorance of

the ground realities of production of a witness, and to the detriment of the accused.

The Court cannot be said to have done its part.

17. We must also observe that in this case, the daily status of the Trial Court

extracted supra, reveals that that the Court appointed both an Amicus Curiae and a

legal aid counsel for the accused. There is no quarrel on that point. The same is

permissible. [See: Lalu Prasad v. State of Jharkhand

12

and Shaik Mukhtar &

Anr. v. The State of Andhra Pradesh now State of Telangana

13

] However, we are

constrained to record that the appointment of the Amicus Curiae in a manner of this

magnitude is in ignorance thereof for the case papers are silent as to the standing

12

(2013) 8 SCC 593

13

Criminal Appeal No. 1753 of 2019

Crl.A.259-260/2019 | Page 19 of 47

of the said person appointed to such a position. What was the role played by him?

Was he appointed to assist the Court or was he appointed to aid the representation

of the accused? Such matters should be clearly indicated to enable the Appellate

Court to gain a full view of the matter including being able to ascertain compliance

of essential aspects such as continuous and qualitative legal assistance to the

accused.

(b) Duty of the Appellate Court

18. In the context of the duty of the Court, we must also look to the role played

by the Court when sitting in appellate and/or confirmation jurisdiction. It has long

been held that a Court in first appellate jurisdiction, has to appreciate the evidence

on record, after duly summoning the record of the Courts below, and then arrive at

its own finding, irrespective of the order under challenge before it being of

conviction or acquittal. [See: Wilayat Khan v. State of U.P.

14

; Atley v. State of

U.P

15

; Harijana Thirupala v. Public Prosecutor

16

; and Ravasaheb v. State of

Karnataka

17

]

19. When particularly concerned with cases of Capital Punishment, naturally,

since a person’s life hangs in the balance, the High Court’s responsibility is

accordingly enhanced/heightened. It “must carefully examine all relevant and

material circumstances before upholding the conviction and confirming the

14

1951 SCC 898

15

AIR 1955 SC 807

16

(2002) 6 SCC 470

17

(2023) 5 SCC 391

Crl.A.259-260/2019 | Page 20 of 47

sentence of death.” [See: Masalti v. State of U.P.

18

; Charan Singh & Ors. v. State

of Punjab

19

; and Arjun Marik & Ors. v. State of Bihar

20

]

(b) Duty of Prosecutor

20. In a criminal trial, unless the law otherwise requires, the onus of proof never

shifts. It is always on the prosecution. The job of the prosecution is to drive home

the guilt of the accused beyond reasonable doubt, but at the same time, the

prosecutor cannot forget that his first and foremost duty is, that of an officer of the

Court. The prosecuting agency carries the role, primarily, till the time the matter

enters the Court. They have a responsibility to examine all possible angles, collect

all relevant evidence and then produce the same before the Court for determination

of guilt or lack thereof. The following extracts of judgments underscore the

indispensable role of the prosecutor.

20.1 In Bablu Kumar (supra), it was held that :

“The Public Prosecutor who conducts the trial has a statutory duty

to perform. He cannot afford to take things in a light manner. The

court also is not expected to accept the version of the prosecution as

if it is sacred. It has to apply its mind on every occasion. Non-

application of mind by the trial court has the potentiality to lead to

the paralysis of the conception of fair trial.”

(Emphasis supplied)

18

AIR 1965 SC 202

19

(1975) 3 SCC 39

20

1994 Supp (2) SCC 372

Crl.A.259-260/2019 | Page 21 of 47

20.2 Recently, a Three-Judge Bench of this Court in Ashok v. State of Uttar

Pradesh

21

issued directions regarding the role of public prosecutors and

appointments of counsel through legal aid processes, this Court held :

“23. Our conclusions and directions regarding the role of the Public

Prosecutor and appointment of legal aid lawyers are as follows:

a. It is the duty of the Court to ensure that proper legal aid is

provided to an accused;

b. When an accused is not represented by an advocate, it is the duty

of every Public Prosecutor to point out to the Court the

requirement of providing him free legal aid. The reason is that it

is the duty of the Public Prosecutor to ensure that the trial is

conducted fairly and lawfully;

c. Even if the Court is inclined to frame charges or record

examination-in-chief of the prosecution witnesses in a case

where the accused has not engaged any advocate, it is incumbent

upon the Public Prosecutor to request the Court not to proceed

without offering legal aid to the accused;

c. It is the duty of the Public Prosecutor to assist the Trial Court in

recording the statement of the accused under Section 313 of

the CrPC. If the Court omits to put any material circumstance

brought on record against the accused, the Public Prosecutor

must bring it to the notice of the Court while the examination of

the accused is being recorded. He must assist the Court in

framing the questions to be put to the accused. As it is the duty

of the Public Prosecutor to ensure that those who are guilty of

the commission of offence must be punished, it is also his duty

to ensure that there are no infirmities in the conduct of the trial

which will cause prejudice to the accused;

d. An accused who is not represented by an advocate is entitled to

free legal aid at all material stages starting from remand. Every

accused has the right to get legal aid, even to file bail petitions;

f. At all material stages, including the stage of framing the charge,

recording the evidence, etc., it is the duty of the Court to make

the accused aware of his right to get free legal aid. If the accused

expresses that he needs legal aid, the Trial Court must ensure

that a legal aid advocate is appointed to represent the accused;

21

2024 SCC OnLine SC 3580

Crl.A.259-260/2019 | Page 22 of 47

g. As held in the case of Anokhilal

5

, in all the cases where there is

a possibility of a life sentence or death sentence, only those

learned advocates who have put in a minimum of ten years of

practice on the criminal side should be considered to be

appointed as amicus curiae or as a legal aid advocate. Even in

the cases not covered by the categories mentioned above, the

accused is entitled to a legal aid advocate who has good

knowledge of the law and has an experience of conducting trials

on the criminal side. It would be ideal if the Legal Services

Authorities at all levels give proper training to the newly

appointed legal aid advocates not only by conducting lectures

but also by allowing the newly appointed legal aid advocates to

work with senior members of the Bar in a requisite number of

trials;

h. The State Legal Services Authorities shall issue directions to the

Legal Services Authorities at all levels to monitor the work of

the legal aid advocate and shall ensure that the legal aid

advocates attend the court regularly and punctually when the

cases entrusted to them are fixed;

i. It is necessary to ensure that the same legal aid advocate is

continued throughout the trial unless there are compelling

reasons to do so or unless the accused appoints an advocate of

his choice;

j. In the cases where the offences are of a very serious nature and

complicated legal and factual issues are involved, the Court,

instead of appointing an empanelled legal aid advocate, may

appoint a senior member of the Bar who has a vast experience

of conducting trials to espouse the cause of the accused so that

the accused gets best possible legal assistance;

k. The right of the accused to defend himself in a criminal trial is

guaranteed by Article 21 of the 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;

l. If legal aid is provided only for the sake of providing it, it will

serve no purpose. Legal aid must be effective. Advocates

appointed to espouse the cause of the accused must have good

knowledge of criminal laws, law of evidence and procedural

laws apart from other important statutes. As there is a

constitutional right to legal aid, that right will be effective only

if the legal aid provided is of a good quality. If the legal aid

advocate provided to an accused is not competent enough to

conduct the trial efficiently, the rights of the accused will be

violated.”

(Emphasis supplied)

Crl.A.259-260/2019 | Page 23 of 47

20.3 In Shiv Kumar v. Hukam Chand

22

, a Three-Judge Bench of this Court,

having taken note of various judgments returned by some High Courts, made

the following observations:

“13. … A Public Prosecutor is not expected to show a thirst to reach

the case in the conviction of the accused somehow or the other

irrespective of the true facts involved in the case. The expected

attitude of the Public Prosecutor while conducting prosecution must

be couched in fairness not only to the court and to the investigating

agencies but to the accused as well. If an accused is entitled to any

legitimate benefit during trial the Public Prosecutor should not

scuttle/conceal it. On the contrary, it is the duty of the Public

Prosecutor to winch it to the fore and make it available to the

accused. Even if the defence counsel overlooked it, the Public

Prosecutor has the added responsibility to bring it to the notice of the

court if it comes to his knowledge. A private counsel, if allowed a

free hand to conduct prosecution would focus on bringing the case

to conviction even if it is not a fit case to be so convicted. That is the

reason why Parliament applied a bridle on him and subjected his role

strictly to the instructions given by the Public Prosecutor.

xxx

14. An early decision of a Full Bench of the Allahabad High

Court in Queen-Empress v. Durga [ILR (1894-96) 16 All 84 : 1894

AWN 7] has pinpointed the role of a Public Prosecutor as follows:

“It is the duty of a Public Prosecutor to conduct the case

for the Crown fairly. His object should be, not to obtain

an unrighteous conviction, but, as representing the

Crown, to see that justice is vindicated; and, in

exercising his discretion as to the witnesses whom he

should or should not call, he should bear that in mind. In

our opinion, a Public Prosecutor should not refuse to call

or put into the witness box for cross-examination a

truthful witness returned in the calendar as a witness for

the Crown, merely because the evidence of such witness

might in some respects be favourable to the defence. If a

Public Prosecutor is of opinion that a witness is a false

witness or is likely to give false testimony if put into the

witness box, he is not bound, in our opinion, to call that

witness or to tender him for cross-examination.”

16. As we are in complete agreement with the observation of a

Division Bench of the High Court of Andhra Pradesh in Medichetty

22

(1999) 7 SCC 467

Crl.A.259-260/2019 | Page 24 of 47

Ramakistiah v. State of A.P. [AIR 1959 AP 659 : 1959 Cri LJ 1404]

we deem it fit to extract the said observation:

“A prosecution, to use a familiar phrase, ought not to be

a persecution. The principle that the Public Prosecutor

should be scrupulously fair to the accused and present

his case with detachment and without evincing any

anxiety to secure a conviction, is based upon high policy

and as such courts should be astute to suffer no inroad

upon its integrity. Otherwise there will be no guarantee

that the trial will be as fair to the accused as a criminal

trial ought to be. The State and the Public Prosecutor

acting for it are only supposed to be putting all the facts

of the case before the Court to obtain its decision thereon

and not to obtain a conviction by any means fair or foul.

Therefore, it is right and proper that courts should be

zealous to see that the prosecution of an offender is not

handed over completely to a professional gentleman

instructed by a private party.” ”

20.4 In Harendra Rai v. State of Bihar

23

, this Court, speaking through one of

us, (Vikram Nath J.) took notice of the observations made by the Law

Commission of India in regard to the prosecutors, as follows :

“123. Insofar as the Public Prosecutors are concerned, a lot of

comments have been made, not only by this Court but also by the

Law Commission, highlighting the role and importance of a Public

Prosecutor. We may quote with profit the role of the Prosecutors as

stated in the 197th Law Commission of India Report on Public

Prosecutors' Appointments (2006) :

“…‘The Prosecutor has a duty to the State, to the

accused and to the court. The Prosecutor is at all times a

minister of justice, though seldom so described. It

is not the duty of the prosecuting counsel to secure a

conviction, nor should any prosecutor even feel pride or

satisfaction in the mere fact of success.”

(Emphasis in original)

124. In 154th Law Commission of India Report it was reported as

follows :

23

(2023) 13 SCC 563

Crl.A.259-260/2019 | Page 25 of 47

“15. …‘8. … Prosecutors are really ministers of Justice

whose job is none other than assisting the State in the

administration of justice. They are not representatives of

any party. Their job is to assist the court by placing

before the court all relevant aspects of the case. They are

not there to see the innocent go to the gallows; they are

also not there to see the culprits escape conviction.’ ”

20.5 In Anees v. State (NCT of Delhi)

24

, a Three-Judge Bench recently

observed as follows :

“67. …The relations between the Public Prosecution Service and the

judiciary are the very cornerstone of the criminal justice system. The

public prosecutors who are responsible for conducting prosecutions

and may appeal against the court decisions, are one of judges' natural

counterparts in the trial proceedings and also in the broader context

of management of the system of criminal law.”

21. The prosecutor in the present case, in our view, seemed to have missed his

duty as an officer of the Court. Change of counsel; belated appointment of Amicus

Curiae/defence counsel; closure of opportunity to cross-examine; recording of

evidence in the absence of defence counsel are all factors that the prosecutor, in their

solemn duty ought to have objected to and brought to the notice of the Court, as

contravening the principle of a fair trial. The relevant orders in this regard stand

extracted as part of Para 13 of this opinion.

22. In earlier paragraphs of this order, we have pointed out factors which call into

question the sanctity of the sentence imposed upon the appellant. Most of these

shortfalls impact the constitutional and statutory rights guaranteed to the accused

standing trial.

24

2024 SCC OnLine SC 757

Crl.A.259-260/2019 | Page 26 of 47

(c) Rights of the Accused

23. As noticed supra, the Indian Criminal Justice System places the accused

person at a comparative disadvantage which is more so exacerbated when the person

is economically or socially less fortunate as in the present case. This Court through

various judicial pronouncements has underscored and strengthened the rights of a

person accused of committing a crime in order to ensure that the constitutional

guarantee of Justice sees the light of the day. Some of those pronouncements in

addition to those already discussed supra, are below:

23.1 In State of Punjab v. Baldev Singh

25

, this Court held :

“45. .... Prosecution cannot be permitted to take advantage of its own

wrong. Conducting a fair trial for those who are accused of a criminal

offence is the cornerstone of our democratic society. A conviction

resulting from an unfair trial is contrary to our concept of justice.

Conducting a fair trial is both for the benefit of the society as well as

for an accused and cannot be abandoned. While considering the

aspect of fair trial, the nature of the evidence obtained and the nature

of the safeguard violated are both relevant factors…”

(Emphasis supplied)

23.2 In Chaluvegowda & Ors. v. State

26

, this Court discussed extensively

the right of representation by counsel. The relevant paragraphs are reproduced

with profit as under :

“18. The right to a fair trial is one to be enjoyed by the guilty as well

as the innocent, for an accused is presumed to be innocent until

proved to be otherwise in a fairly conducted trial. This right would

include that he be defended by a competent counsel. The provision

of an amicus curiae for an accused, in case the accused is unable to

engage an advocate to conduct his defence, is to ensure the goal of a

fair trial which is a guarantee provided in the Constitution. We may

25

(1999) 6 SCC 172

26

(2012) 13 SCC 538

Crl.A.259-260/2019 | Page 27 of 47

recall the often quoted passage of Potter Stewart “Fairness is what

justice really is”.

19. The right to be represented by a lawyer must not be an empty

formality. It must not be a sham or an eyewash. The appointment of

an amicus curiae for the defence of an accused person must be in true

letter and spirit, with due regard to the effective opportunity of

hearing that is to be afforded to every accused person before being

condemned. The due process of law incorporated in our

constitutional system demands that a person not only be given an

opportunity of being heard before being condemned, but also that

such opportunity be fair, just and reasonable.

20. It is appropriate to recall Powell v. Alabama [77 L Ed 158 : 287

US 45 (1932)] , in which nine Black men were accused of raping two

White women, and were charged with the same. Since the accused

were from a different State, they did not have legal assistance, so the

trial Judge, in a very vague manner, appointed all the members of the

Alabama Bar to defend the accused. However, when the actual trial

was underway, none of the lawyers defended the accused, but only

offered to provide assistance to the defence lawyer. Satisfied by this,

the trial Judge allowed the trial to proceed in the absence of an

effective legal assistance for the accused, and the trial resulted in a

conviction with the death sentence accorded on the accused. The US

Supreme Court took strong exception to the procedure adopted by

the trial court. The Court held: (L Ed p. 162 : US p. 53)

“It is hardly necessary to say that the right to counsel

being conceded, a defendant should be afforded a fair

opportunity to secure counsel of his own choice. Not

only was that not done here, but such designation of

counsel as was attempted was either so indefinite or so

close upon the trial as to amount to a denial of effective

and substantial aid in that regard.”

21. The Court, speaking through Sutherland, J. further held: (Powell

case [77 L Ed 158 : 287 US 45 (1932)] , L Ed p. 165 : US p. 58)

“…The defendants, young, ignorant, illiterate,

surrounded by hostile sentiment, haled back and forth

under guard of soldiers, charged with an atrocious crime

regarded with especial horror in the community where

they were to be tried, were thus put in peril of their lives

within a few moments after counsel for the first time

charged with any degree of responsibility began to

represent them.

It is not enough to assume that counsel thus precipitated into the case

thought there was no defence, and exercised their best judgment in

proceeding to trial without preparation.”

Crl.A.259-260/2019 | Page 28 of 47

22. In Gideon v. Wainwright [9 L Ed 2d 799 : 372 US 335 (1963)]

the US Supreme Court, approving the above observations, laid down

following principles: (L Ed p. 805)

“… In returning to these old precedents, sounder we believe

than the new, we but restore constitutional principles

established to achieve a fair system of justice. Not only

these precedents but also reason and reflection require us to

recognise that in our adversary system of criminal justice,

any person haled into court, who is too poor to hire a lawyer,

cannot be assured a fair trial unless counsel is provided for

him. This seems to us to be an obvious truth. Governments,

both State and Federal, quite properly spend vast sums of

money to establish machinery to try defendants accused of

crime. Lawyers to prosecute are everywhere deemed

essential to protect the public's interest in an orderly society.

Similarly, there are few defendants charged with crime, few

indeed, who fail to hire the best lawyers they can get to

prepare and present their defences. That Government hires

lawyers to prosecute and defendants who have the money

hire lawyers to defend are the strongest indications of the

widespread belief that lawyers in criminal courts are

necessities, not luxuries. The right of one charged with

crime to counsel may not be deemed fundamental and

essential to fair trial in some countries, but it is in ours.” ”

(Emphasis supplied)

23.3 In Brijesh Kumar v. State of U.P.

27

, this Court underlined the importance

of legal representation and particularly for those economically or socially less

fortunate. It was observed :

“3. The right to legal representation sits at the core of not only the

right to life and liberty conferred by Article 21 of the Constitution,

but at the very foundation of the entirety of our justice system, be it

civil or criminal. For this right to be meaningful, it is imperative that

it does not make distinctions between the rich and the poor, the haves

and have-nots. The right to legal representation, as necessitated by

the demands of justice and equity, must be unfazed by the economic

class or financial resources of the accused.

4. To this end was enacted the Legal Services Authorities Act, 1987

(hereinafter “the 1987 Act”), setting for itself the following object

and purpose:

27

(2021) 19 SCC 177

Crl.A.259-260/2019 | Page 29 of 47

“… to provide free and competent legal services to the

weaker sections of the society to ensure that

opportunities for securing justice are not denied to any

citizen by reason of economic or other disabilities, and

to organise Lok Adalats to secure that the operation of

the legal system promotes justice on a basis of equal

opportunity.”

5. Having secured for itself the above hallowed purpose, the Act has

created a nationwide network of Legal Services Authorities (at the

National, State, district and taluk level) for framing policies for legal

aid and services, as well as a network of Legal Services Committees

(within the Supreme Court, the High Court and the taluk level) for

the on-ground implementation of the legal services programme at

various levels.

6. In further recognition of the need to fill a dire gap in access to

justice for the poor, it has also become a well-settled position that,

that where an accused comes before the Court without legal

representation, the Court is duty-bound to either appoint an Amicus

Curiae or refer him to the appropriate Legal Services Committee

who shall then appoint an advocate to represent the accused

(Rakesh v. State of M.P. [Rakesh v. State of M.P., (2011) 12 SCC 513

: (2012) 1 SCC (Cri) 613] and Sk. Mukthar v. State of A.P. [Sk.

Mukthar v. State of A.P., (2020) 19 SCC 178 : (2021) 3 SCC (Cri)

795] ).”

23.4 Krishna Iyer, J. in M.H. Hoskot v. State of Maharashtra

28

, said :

“14. The other ingredient of fair procedure to a prisoner, who has to

seek his liberation through the court process is lawyer's services.

Judicial justice, with procedural intricacies, legal submissions and

critical examination of evidence, leans upon professional expertise;

and a failure of equal justice under the law is on the cards where such

supportive skill is absent for one side. Our judicature, moulded by

Anglo-American models and our judicial process, engineered by

kindred legal technology, compel the collaboration of lawyer-power

for steering the wheels of equal justice under the law.

15. Gideon's trumpet has been heard across the Atlantic. Black, J.

there observed: [ Processual Justice to the People, (May 1973) p. 69

(372 US at 344 : 9 L Ed 2d at 805)]

“Not only those precedents but also reason and reflection

require us to recognise that in our adversary system of criminal

justice, any person haled into court, who is too poor to hire a

lawyer, cannot be assured a fair trial unless counsel is provided

28

(1978) 3 SCC 544

Crl.A.259-260/2019 | Page 30 of 47

for him. This seems to us to be an obvious truth. Governments,

both State and federal, quite properly spend vast sums of

money to establish machinery to try defendants accused of

crime. Lawyers to prosecute are everywhere deemed essential

to protect the public's interest in an orderly society. Similarly,

there are few defendants charged with crime who fail to hire

the best lawyers they can get to prepare and present their

defences. That Government hires lawyers to prosecute and

defendants who have the money hires lawyers to defend are

the strongest indications of the widespread belief that lawyers

in criminal courts are necessities, not luxuries. The right of one

charged with crime to counsel may not be deemed fundamental

and essential to fair trials in some countries, but is in ours.

From the very beginning, our state and national constitutions

and laws have laid great emphasis on procedural and

substantive safeguards designed to assure fair trials before

impartial tribunals in which every defendant stands equal

before the law. This noble idea cannot be realised if the poor

man charged with crime has to face his accusers without a

lawyer to assist him.”

(Emphasis supplied)

23.5 In Suk Das v. Union Territory of Arunachal Pradesh

29

, this Court held

as under :

“6. But the question is whether this fundamental right could lawfully

be denied to the appellant if he did not apply for free legal aid. Is the

exercise of this fundamental right conditioned upon the accused

applying for free legal assistance so that if he does not make an

application for free legal assistance the trial may lawfully proceed

without adequate legal representation being afforded to him? Now it

is common knowledge that about 70 per cent of the people living in

rural areas are illiterate and even more than that percentage of the

people are not aware of the rights conferred upon them by law. Even

literate people do not know what are their rights and entitlements

under the law. It is this absence of legal awareness which is

responsible for the deception, exploitation and deprivation of rights

and benefits from which the poor suffer in this land. Their legal

needs always stand to become crisis-oriented because their

ignorance prevents them from anticipating legal troubles and

approaching a lawyer for consultation and advice in time and their

poverty magnifies the impact of the legal troubles and difficulties

when they come. Moreover, because of their ignorance and illiteracy,

they cannot become self-reliant : they cannot even help themselves.

The law ceases to be their protector because they do not know that

29

(1986) 2 SCC 401

Crl.A.259-260/2019 | Page 31 of 47

they are entitled to the protection of the law and they can avail of the

legal service programme for putting an end to their exploitation and

winning their rights…”

(Emphasis supplied)

23.6 A recent judgment in Suhas Chakma v. Union of India

30

, highlighted the

legal aid defence counsel system, observing that the objective of the scheme is

to provide quality legal aid to all those in need. Herein, reference was also made

to Ramanand @ Nandlal Bharti v. State of U.P.

31

, while discussing the quality

of legal aid and in para 120, it was held :

“120. It is by far now well-settled for a legal proposition that it is the

duty of the court to see and ensure that an accused put on a criminal

trial is effectively represented by a defence counsel, and in the event

on account of indigence, poverty or illiteracy or any other disabling

factor, he is not able to engage a counsel of his choice, it becomes

the duty of the court to provide him appropriate and meaningful legal

aid at the State expense. What is meant by the duty of the State to

ensure a fair defence to an accused is not the employment of a

defence counsel for namesake. It has to be the provision of a counsel

who defends the accused diligently to the best of his abilities. While

the quality of the defence or the caliber of the counsel would not

militate against the guarantee to a fair trial sanctioned by Articles 21

and 22 resply of the Constitution, a threshold level of competence

and due diligence in the discharge of his duties as a defence counsel

would certainly be the constitutional guaranteed expectation. The

presence of counsel on record means effective, genuine and faithful

presence and not a mere farcical, sham or a virtual presence that is

illusory, if not fraudulent.”

(Emphasis supplied)

23.7 In Anokhilal v. State of M.P.

32

, a Three-Judge Bench of this Court

summarized certain principles regarding the grant of free legal aid, and the

30

2024 SCC OnLine SC 3031

31

2022 SCC OnLine SC 1396

32

(2019) 20 SCC 196

Crl.A.259-260/2019 | Page 32 of 47

same being ‘real and meaningful’, while setting aside a judgment of conviction,

noticing the absence thereof. [See: Paragraphs 31 to 31.4]

24. Having considered the rights and guarantees in favour of the accused, we now

examine the record. One of the primary issues that revealed itself is inadequate

representation by counsel for the appellant. On various crucial dates, such as the

committal of proceedings to the concerned Trial Court (compliance of Section 209

Cr.P.C.) and the examination-in-chief of the primary witness of the prosecution, i.e.,

PW-2, the appellant was not represented or adequately so.

25. What is apparent, therefore, is that the statements of PW-1 and PW-2, i.e., the

complainant and star witness respectively of the prosecution, were recorded in the

absence of counsel for the accused. Opportunity for cross-examination also stood

closed qua PW-1 which, in our view, cannot be countenanced. If a trial is conducted

in such a manner, the argument of prejudice will be available to the accused.

Presence of the accused’s counsel at the time of recording of the statement is

necessary. [See: Ekene Godwin v. State of T.N.

33

]

26. This Court has, in Kartar Singh v. State of Punjab

34

also spoken of the

purpose of cross-examination, they are: a) to call into question, credibly the

evidentiary value of the witness; b) to bring out such facts, that may favour the

cross-examining lawyer’s client; and c) to establish the said witness, is unworthy

of belief, and that his credit stands impeached.

33

2024 SCC OnLine SC 337

34

(1994) 3 SCC 569

Crl.A.259-260/2019 | Page 33 of 47

27. In the same vein, the effect of counsel not being present in Court on crucial

dates, and its effect on the sanctity of the entire exercise of prosecution has to be

considered. The matter begins before the Trial Court on 20

th

October 2014. Save the

two occasions, i.e., on 1

st

September 2015 and 8

th

June 2016, nowhere does the

record state that counsel for the accused was absent

35

and on the latter date, an

Amicus Curie was appointed. On 21

st

February 2017, a different/new lawyer was

appointed as counsel for the accused, and on the same day, the matter was put up for

judgment.

28. This frequent change in counsel as also the matter being reserved for

judgment on the very day that a new counsel for the accused is brought on record,

leads us to question the assistance given to the appellant by such lawyers. Was his

case effectively argued? Were all the possible gaps in the prosecution case

sufficiently explored and exploited to his advantage? Were the prosecution witnesses

ably cross-examined leading to the creation of a reasonable doubt, wherever

possible? All these questions arise in our mind, considering the situation of the

defence counsel. To us, the imposition of the death penalty here appears fraught with

danger and should not be sustained. We are supported in holding such an

apprehension by the fact that this Court has recognized that sufficient time should

be given to counsel to prepare the case and conduct the same on behalf of his client.

Although, it is true that there can be no formulae for what may be considered

35

Whereas on other dates his presence was recorded.

Crl.A.259-260/2019 | Page 34 of 47

sufficient, the same has to be determined in the facts and circumstances of the case.

[See: Bashira v. State of U.P.

36

] As has already been noticed, there was a change of

counsel recorded in the daily status of the Trial Court, arguments were closed on the

very same day and the matter was reserved for judgment. What is the efficiency of

the newly appointed counsel’s assistance to the appellant? This question stares in

the face of the conclusion of capital punishment arrived at by the Court, more so

when there was a frequent change of counsel during trial, losing out the continuity

of thought process.

Rights under Section 311 and 313 Cr.P.C.

29. Additionally, we may note the manner in which the application to recall under

Section 311 was filed and the statement of the accused in Section 313 Cr.P.C. was

refused and recorded respectively, is rendered questionable in the sum total of

circumstance. Both rights under these Sections are important for a trial to reach a

just conclusion. This principle has been repeatedly emphasized by this Court

through various judgments.

30. On Section 311 and the rejection of the application, we may refer to the

observations of this Court in the Zahira Habibullah Sheikh (5) v. State of

Gujarat

37

. It was said :

“26… The section is manifestly in two parts. Whereas the word used

in the first part is “may”, the second part uses “shall”. In

consequence, the first part gives purely discretionary authority to a

criminal court and enables it at any stage of an enquiry, trial or

36

1968 SCC OnLine SC 84

37

(2006) 3 SCC 374

Crl.A.259-260/2019 | Page 35 of 47

proceeding under the Code (a) to summon anyone as a witness, or

(b) to examine any person present in the court, or (c) to recall and re-

examine any person whose evidence has already been recorded. On

the other hand, the second part is mandatory and compels the court

to take any of the aforementioned steps if the new evidence appears

to it essential to the just decision of the case. This is a supplementary

provision enabling, and in certain circumstances imposing on the

court the duty of examining a material witness who would not be

otherwise brought before it. It is couched in the widest possible terms

and calls for no limitation, either with regard to the stage at which

the powers of the court should be exercised, or with regard to the

manner in which it should be exercised. It is not only the prerogative

but also the plain duty of a court to examine such of those witnesses

as it considers absolutely necessary for doing justice between the

State and the subject. There is a duty cast upon the court to arrive at

the truth by all lawful means and one of such means is the

examination of witnesses of its own accord when for certain obvious

reasons either party is not prepared to call witnesses who are known

to be in a position to speak important relevant facts.

27. The object underlying Section 311 of the Code is that there may

not be failure of justice on account of mistake of either party in

bringing the valuable evidence on record or leaving ambiguity in the

statements of the witnesses examined from either side. The

determinative factor is whether it is essential to the just decision of

the case. The section is not limited only for the benefit of the

accused, and it will not be an improper exercise of the powers of the

court to summon a witness under the section merely because the

evidence supports the case of the prosecution and not that of the

accused. The section is a general section which applies to all

proceedings, enquiries and trials under the Code and empowers the

Magistrate to issue summons to any witness at any stage of such

proceedings, trial or enquiry. In Section 311 the significant

expression that occurs is “at any stage of any inquiry or trial or other

proceeding under this Code”. It is, however, to be borne in mind that

whereas the section confers a very wide power on the court on

summoning witnesses, the discretion conferred is to be exercised

judiciously, as the wider the power the greater is the necessity for

application of judicial mind.

28. As indicated above, the section is wholly discretionary. The

second part of it imposes upon the Magistrate an obligation : it is,

that the court shall summon and examine all persons whose evidence

appears to be essential to the just decision of the case. It is a cardinal

rule in the law of evidence that the best available evidence should be

brought before the court…

29. The object of Section 311 is to bring on record evidence not only

from the point of view of the accused and the prosecution but also

from the point of view of the orderly society. If a witness called by

Crl.A.259-260/2019 | Page 36 of 47

the court gives evidence against the complainant, he should be

allowed an opportunity to cross-examine. The right to cross-examine

a witness who is called by a court arises not under the provisions of

Section 311, but under the Evidence Act which gives a party the right

to cross-examine a witness who is not his own witness. Since a

witness summoned by the court could not be termed a witness of any

particular party, the court should give the right of cross-examination

to the complainant. These aspects were highlighted in Jamatraj

Kewalji Govani v. State of Maharashtra [(1967) 3 SCR 415 : AIR

1968 SC 178 : 1968 Cri LJ 231] .”

(Emphasis supplied)

[See also: Jamatraj Kewalji Govani v. State of Maharashtra

38

; Rajendra

Prasad v. Narcotic Cell

39

; Vijay Kumar v. State of U.P.

40

; Natasha Singh v. CBI

41

;

Rajaram Prasad Yadav v. State of Bihar

42

; State v. N. Seenivasagan

43

; and Satbir

Singh v. State of Haryana

44

]

30.1 A perusal and consideration of the aforesaid decisions reveal the following

principles as governing the application of Section 311 Cr.P.C. :

(a) The Section is divided into two parts, the first being directory with

the use of the word ‘may’ and the latter being mandatory with the use

of the word ‘shall’.

(b) The power of the Court is couched in the widest terms possible with

no express limitation thereon.

38

1967 SCC OnLine SC 19

39

(1999) 6 SCC 110

40

(2011) 8 SCC 136

41

(2013) 5 SCC 741

42

(2013) 14 SCC 461

43

(2021) 14 SCC 1

44

2023 SCC OnLine 1086

Crl.A.259-260/2019 | Page 37 of 47

(c) The exercise of such power is not only the prerogative but also the

duty of the Court, in connection with a witness who may be

considered absolutely necessary, in the interest of justice.

(d) This power is to be used both for the benefit of the prosecution and

the defence. To summon a witness because it serves the case of one

of the parties and not the other, would be improper.

(e) This power can be exercised at any stage of proceedings, i.e. enquiry,

trial or any other.

(f) Power is to be exercised judiciously since wider the power, greater

the requirement of the application of a judicial mind.

(g) If a witness so-called under this power, gives evidence against the

complainant, the latter should be given an opportunity to cross-

examination. This power arises not under Section 311 but under the

Indian Evidence Act, 1872.

(h) A witness cannot be recalled by the use of this power to simply fill

up a lacuna in the case of the prosecution.

31. The order rejecting the application to recall witnesses, dated 18

th

February

2017 reads as below:

“18.02.2017- Case called out Accused present in J.C. But not present.

Counsel heared on application 32-B brief order is passed on the

application. After lunch on 2.30 P.M. an application for time to adduce

defence witness 35-B moved by defence counsel. Order passed on the

application “Vide order of even date, application u/s 311 moved by Ld

counsel has been rejected. He sought time to adduce arguments which

was granted. After which, he has moved application for providing

defence evidence. If the Ld. Counsel produce the witness on the date

Crl.A.259-260/2019 | Page 38 of 47

fixed he will be examined failing which matter will be posted for

Judgment after hearing argument of the prosecution.”

(A.S.J. 1

st

)”

Such a summary rejection, in our view, is unjustified. The object and purpose

of this power of wide amplitude resting with the Trial Court has been detailed in

Zahira Habibullah Sheikh (5) (supra). Given that the counsel for the accused had

been changed, an additional charge has been added against the accused and that it

had taken over two years to record the evidence of the witnesses, taking the sum

total of circumstances, such an application should have been allowed.

32. Let us now consider, the examination of the accused under Section 313. In a

recent judgment titled Raj Kumar v. State (NCT of Delhi)

45

, this Court summarised

the principles regarding Section 313 Cr.P.C., while also observing that if prejudice

is caused to the appellant in non-observance of these principles, the trial would

vitiate. [See: Shivaji Sahabrao Bobade v. State of Maharashtra

46

] The principles

are reproduced below for ready reference:

“17. The law consistently laid down by this Court can be

summarized as under :

(i) It is the duty of the Trial Court to put each material circumstance

appearing in the evidence against the accused specifically,

distinctively and separately. The material circumstance means the

circumstance or the material on the basis of which the prosecution is

seeking his conviction;

(ii) The object of examination of the accused under Section 313 is to

enable the accused to explain any circumstance appearing against

him in the evidence;

45

2023 SCC OnLine SC 609

46

(1973) 2 SCC 793

Crl.A.259-260/2019 | Page 39 of 47

(iii) The Court must ordinarily eschew material circumstances not

put to the accused from consideration while dealing with the case of

the particular accused;

(iv) The failure to put material circumstances to the accused amounts

to a serious irregularity. It will vitiate the trial if it is shown to have

prejudiced the accused;

(v) If any irregularity in putting the material circumstance to the

accused does not result in failure of justice, it becomes a curable

defect. However, while deciding whether the defect can be cured,

one of the considerations will be the passage of time from the date

of the incident;

(vi) In case such irregularity is curable, even the appellate court can

question the accused on the material circumstance which is not put

to him;

(vii) In a given case, the case can be remanded to the Trial Court

from the stage of recording the supplementary statement of the

concerned accused under Section 313 of CrPC; and

(viii) While deciding the question whether prejudice has been caused

to the accused because of the omission, the delay in raising the

contention is only one of the several factors to be considered.”

(Emphasis supplied)

32.1 The statement recorded under Section 313 of the accused is as below :

“Name - Sovaran Singh

Father's Name - Babura,

Age - 35

Occupation - Labourer

R/o - Rooppur

Thana - Karhal

District - Mainpuri

Question 1 - It is well known that you have married Mamta, the

plaintiff in this case.

What do you have to say about this?

Answer - That is correct.

Question 2 - The prosecution says that on the day of the incident,

dated 30.06.14, at about 11-12 in the night, you killed your daughter

by holding her by the legs, lifting her, throwing her on the ground

and keeping your foot on her neck. What do they call this?

Answer - That is incorrect.

Crl.A.259-260/2019 | Page 40 of 47

Question 3 - The prosecution says that on 30.06.14 at about 11-12 in

the night, you killed your wife Smt. Mamta by hitting her with

bricks, stones and bamboo and you scraped the blood from the

ground and threw it somewhere, what do you have to say about this?

Answer - That is incorrect.

Question 4 - It is noteworthy that the complainant Mr. Rajnesh

Kumar gave the report of the incident as Exhibit-1 to the police

station, according to which an FIR was lodged which is Exhibit-6,

which was disclosed in GD which is Exhibit-7, what do you have to

say about this?

Answer - Has given false testimony.

Question 5 - Prosecution says that after registration of the case in the

police station, the investigation was taken over by the investigating

officer and on reaching the spot of incident, on the indication of the

plaintiff, he made a map of the spot, which is Exhibit-10 and Exhibit-

11. And under the supervision of the investigating officer, a

Panchnama of the deceased Smt. Mamta was prepared and all the

police records were prepared, which are Exhibit-1 and Exhibit-18.

He also prepared the Panchnama of the deceased Kumari Sapna and

prepared police records, which are Exhibit-19 and Exhibit-23. What

do you have to say in this regard?

Answer - I don't want to say anything.

Question 6 - Prosecution says that the investigator prepared the

report on the spot by taking soil, soil and blood stains from the crime

scene, which is Exhibit-9. What do you have to say about this?

Answer - I don't want to say anything.

Question 7 - You heard the statements of witnesses PW1 Rajnesh

Kumar, plaintiff, PW2 Kumari Poonam. Why do the witnesses

testify against you?

Answer - It is false testimony only.

Question 8 - You heard the statements of witnesses PW1 Rajnesh

Kumar, plaintiff, PW4 Kumar Ramveer Singh, PW5 Inspector

Balveer Singh, investigating officer, PW6 Omveer Singh. Why do

the witnesses testify?

Answer - Due to animosity.

Question 9 - The prosecution is true that you got the murder weapon,

a lathi (bamboo), recovered on your indication by the investigating

officer, the report of which was prepared by the investigating officer

on the spot, which is Exhibit-12. What do you have to say about this?

Answer - This is incorrect.

Question 10 - Prosecution Evidence that I0 submitted a charge sheet

against you Ex. 13 based on the availability of enough evidence.

What do you have to say about it?

Crl.A.259-260/2019 | Page 41 of 47

Answer - The wrong Charge-sheet has been submitted.

Question 11 - Do you want to say anymore?

Answer - I don't want to say anything.

Question 12 - Why is the case registered against you?

Answer - Due to animosity.

Question 13 - Any clarifications you would like to give?

Answer - Yes.”

32.2 The factors summarised in Raj Kumar (supra) were clearly not followed.

All the incriminating circumstances were not put to the accused. General,

sweeping questions were employed, which were only denied by him. Here, the

role of the prosecutor also requires to be highlighted. It is incumbent upon them

to aid the Court in preparing questions to be put to the accused. It has also been

held in Shivaji Sahabrao Bobade (supra) that prejudice can be caused, if the

statements are not properly recorded. We find there to be adequate possibility

that the appellant has been prejudiced.

Obligations under International Law

33. The Indian Constitution enjoins a responsibility upon all persons to foster

respect for international law.

47

The Universal Declaration of Human Rights 1948,

which is considered the foremost document in International Human Rights Law,

records guarantees for fairness in criminal procedure on two occasions, i.e., Articles

10 and 11. They read :

“Article 10

47

See: Article 51(c) the Constitution of India

Crl.A.259-260/2019 | Page 42 of 47

Everyone is entitled in full equality to a fair and public hearing by an

independent and impartial tribunal, in the determination of his rights

and obligations and of any criminal charge against him.

Article 11

1. Everyone charged with a penal offence has the right to be presumed

innocent until proved guilty according to law in a public trial at which

he has had all the guarantees necessary for his defence.

2. No one shall be held guilty of any penal offence on account of any

act or omission which did not constitute a penal offence, under national

or international law, at the time when it was committed. Nor shall a

heavier penalty be imposed than the one that was applicable at the time

the penal offence was committed.”

33.1 Article 14 of the International Covenant on Civil and Political Rights,

1966, which was ratified by India in 1979, guarantees equality to all persons

before the law. It is extracted as below

48

:

“1. All persons shall be equal before the courts and tribunals. In the

determination of any criminal charge against him, or of his rights and

obligations in a suit at law, everyone shall be entitled to a fair and

public hearing by a competent, independent and impartial tribunal

established by law. The press and the public may be excluded from

all or part of a trial for reasons of morals, public order (ordre public)

or national security in a democratic society, or when the interest of

the private lives of the parties so requires, or to the extent strictly

necessary in the opinion of the court in special circumstances where

publicity would prejudice the interests of justice; but any judgement

rendered in a criminal case or in a suit at law shall be made public

except where the interest of juvenile persons otherwise requires or

the proceedings concern matrimonial disputes or the guardianship of

children.

2. Everyone charged with a criminal offence shall have the right to

be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone

shall be entitled to the following minimum guarantees, in full

equality:

(a) To be informed promptly and in detail in a language which he

understands of the nature and cause of the charge against him;

48

International Covenant on Civil and Political Rights, available at: https://www.ohchr.org/en/instruments-

mechanisms/instruments/international-covenant-civil-and-political-rights

Crl.A.259-260/2019 | Page 43 of 47

(b) To have adequate time and facilities for the preparation of his

defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or

through legal assistance of his own choosing; to be informed, if he

does not have legal assistance, of this right; and to have legal

assistance assigned to him, in any case where the interests of justice

so require, and without payment by him in any such case if he does

not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to

obtain the attendance and examination of witnesses on his behalf

under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot

understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will

take account of their age and the desirability of promoting their

rehabilitation.

5. Everyone convicted of a crime shall have the right to his

conviction and sentence being reviewed by a higher tribunal

according to law.

6. When a person has by a final decision been convicted of a criminal

offence and when subsequently his conviction has been reversed or

he has been pardoned on the ground that a new or newly discovered

fact shows conclusively that there has been a miscarriage of justice,

the person who has suffered punishment as a result of such

conviction shall be compensated according to law, unless it is proved

that the non-disclosure of the unknown fact in time is wholly or

partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence

for which he has already been finally convicted or acquitted in

accordance with the law and penal procedure of each country.”

33.2 The International Criminal Court, which has been created by the Rome

Statute to investigate and where warranted, try “individuals charged with the

gravest crimes of concern to the international community: genocide, war

crimes, crimes against humanity and the crime of aggression.”

49

Article 67

49

https://www.icc-cpi.int/about/the-court

Crl.A.259-260/2019 | Page 44 of 47

thereof guarantees, in proceedings before it, the rights of an accused in the

following terms :

“Article 67

Rights of the accused

In the determination of any charge, the accused shall be entitled to a

public hearing, having regard to the provisions of this Statute, to a

fair hearing conducted impartially, and to the following minimum

guarantees, in full equality:

(a) To be informed promptly and in detail of the nature,

cause and content of the charge, in a language which the

accused fully understands and speaks;

(b) To have adequate time and facilities for the

preparation of the defence and to communicate freely

with counsel of the accused’s choosing in confidence;

(c) To be tried without undue delay;

(d) Subject to article 63, paragraph 2, to be present at the

trial, to conduct the defence in person or through legal

assistance of the accused’s choosing, to be informed, if

the accused does not have legal assistance, of this right

and to have legal assistance assigned by the Court in any

case where the interests of justice so require, and without

payment if the accused lacks sufficient means to pay for

it;

(e) To examine, or have examined, the witnesses against

him or her and to obtain the attendance and examination

of witnesses on his or her behalf under the same

conditions as witnesses against him or her. The accused

shall also be entitled to raise defences and to present

other evidence admissible under this Statute;

(f) To have, free of any cost, the assistance of a

competent interpreter and such translations as are

necessary to meet the requirements of fairness, if any of

the proceedings of or documents presented to the Court

are not in a language which the accused fully

understands and speaks;

(g) Not to be compelled to testify or to confess guilt and

to remain silent, without such silence being a

consideration in the determination of guilt or innocence;

(h) To make an unsworn oral or written statement in his

or her defence; and

(i) Not to have imposed on him or her any reversal of the

burden of proof or any onus of rebuttal.

3. In addition to any other disclosure provided for in this Statute, the

Prosecutor shall, as soon as practicable, disclose to the defence evidence in

Crl.A.259-260/2019 | Page 45 of 47

the Prosecutor’s possession or control which he or she believes shows or

tends to show the innocence of the accused, or to mitigate the guilt of the

accused, or which may affect the credibility of prosecution evidence. In case

of doubt as to the application of this paragraph, the Court shall decide.”

What rights of an accused being codified in the Rome Statute signifies is that

even when it comes to the gravest and most heinous crimes committed against

humanity as a whole, a person accused of having so committed such offences is also

entitled to basic protection under the law. In our facts, ending someone’s life is, in

fact, one of the gravest crimes that a person may commit, and so even here the

accused is entitled to the protection of law ensuring that the process that condemns

him as ‘convicted of an offence’, is free of procedural irregularities and blemishes

which may call into question the credibility of the conclusion arrived at by such a

process.

The sole purpose of reproduction of the above articles is to restate and

emphasize the commitment to international law. All prosecutions and conclusions

of either guilt or innocence must give due importance and primacy to these

obligations along with constitutional and statutory guarantees as discussed supra.

34. Before parting with these matters, we may observe the casual manner in

which the prosecution and the trial proceeded. Record reveals set for examination

of witnesses was 13

th

January, 2015 whereafter, on 15 occasions till 14

th

August

2015, the accused was present from judicial custody the matter was adjourned as

witnesses were not present. No explanation can be found for this lackadaisical

approach of the prosecution. In fact, till 1

st

June 2015, the matter was adjourned on

Crl.A.259-260/2019 | Page 46 of 47

33 occasions and only once on 1

st

September 2015 was one witness examined. Over

a trial period of 2.3 years, the matter was posted on 74 occasions and surprisingly,

for a variety of reasons including the majority thereof being non-production of

witnesses, was adjourned on 52 occasions approximately. In a matter of this nature,

it cannot be stressed enough that the examination of witnesses and smooth conduct

of trial is essential which obviously, was given a go-by.

35. In view of the above discussion, the judgments of the Trial Court convicting

the appellant of the charged offence and awarding capital punishment and

confirmation thereof by the High Court, with particulars as mentioned in Para 1

cannot be sustained and, as such, is set aside. The Appeals are accordingly allowed.

The matters are remanded to the Trial Court and restored on the respective docket.

The Trial Court shall proceed afresh from the stage of framing of charge. Trial is

expedited. It shall proceed, to the extent possible on a day-to-day basis. Parties shall

appear before the Trial Court on 18

th

March 2025 and fully cooperate during trial. It

is requested that the matter be heard and judgment delivered within a period of one

year.

36. In conclusion, we may observe the importance of compliance with the

principles of law and procedural rigours, since now, due to such clear non-

compliance all parties to the dispute shall have to go through the process of trial

once more and relive the horrific offence committed against the two deceased

Crl.A.259-260/2019 | Page 47 of 47

persons, namely, Smt. Mamta and Kumari Sapna. Courts must give due regard to

such aspects and not be swayed by the emotions that the offence may evoke.

37. The Registry is directed to communicate this order to the Registrar General,

High Court of Judicature at Allahabad who shall ensure its swift passage to the

concerned court.

Pending application(s) if any, are disposed of.

……...............………J.

(VIKRAM NATH)

………… ..............….J.

(SANJAY KAROL)

……..............……….J.

(SANDEEP MEHTA)

February 4, 2025;

New Delhi.