Summary
The Supreme Court acquitted an appellant convicted of the rape and murder of a ten-year-old girl. The only eyewitness, a child, was not of sterling quality; the recovery of articles at the appellant's instance was not proved; and none of the material circumstances in evidence were put to the appellant under Section 313 CrPC, a defect that could not be cured fifteen and a half years after the incident. The Court also set out the duties of trial courts and Public Prosecutors to secure effective legal aid and proper Section 313 examination.
Issues
- Whether the testimony of the child eyewitness, together with the alleged recovery of the victim's articles, proved the appellant's guilt beyond reasonable doubt.
- Whether the failure to put the material incriminating circumstances to the appellant in his examination under Section 313 CrPC vitiated the conviction, and whether the defect could be cured by remand.
- What role the Public Prosecutor plays in the Section 313 examination and in securing legal aid for an unrepresented accused.
- Whether the appellant's right to timely and effective legal aid was violated, and what norms should govern legal aid to accused persons.
Provisions considered
- Section 313 (corresponding to Section 351, BNSS), Code of Criminal Procedure, 1973Read as requiring each material circumstance in evidence to be put to the accused so that he can explain it. Only three omnibus questions were put, omitting the evidence of the two main witnesses and even the date and place of the crime. This prejudiced the appellant, and given the lapse of time the defect could not be cured by remand. (¶¶ 14, 15, 16, 17)
- Section 313(5) (Section 351(5), BNSS), Code of Criminal Procedure, 1973Read as enabling the court to take the help of the Public Prosecutor and defence counsel in preparing the questions. The Court held that the Public Prosecutor must be present and must point out any incriminating material the court has omitted. (¶¶ 18, 23)
- Section 27, Indian Evidence Act, 1872The recovery memo gave the date but not the time or place of recovery, and its independent witnesses were not examined. It could not therefore be shown that the articles were found at the place the appellant pointed out, and the recovery evidence was excluded. (¶ 13)
- Sections 303 and 304(1) (Sections 340 and 341, BNSS), Code of Criminal Procedure, 1973Section 304(1), quoted by the Court, requires a Sessions Court to assign a pleader at State expense to an unrepresented accused without sufficient means. The Court held that the trial court must inform the accused of the right to free legal aid and ensure that a legal aid lawyer is appointed. (¶¶ 20, 23)
- Articles 21 and 39A, Constitution of IndiaThe right to free and effective legal aid was held to be a fundamental right of the accused under Article 21, informed by Article 39A. Legal aid that is not effective or competent infringes that right. (¶¶ 19, 20, 23)
- IPC Sections 376, 302 and 201; SC/ST Act Section 3(2)(v), Indian Penal Code, 1860; Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989These were the offences of conviction. The trial court imposed death, which the High Court commuted to imprisonment for the remainder of natural life. The Supreme Court set the conviction aside. (¶¶ 2, 3, 24)
Held
- The father's account of what the child eyewitness had told him differed materially from the child's own deposition, which did not describe seeing the rape and murder. The child's statement was recorded 21 days late, he was not named in the charge-sheet witness list, and the father's failure to apprehend the appellant was unnatural. The child's evidence was not of sterling quality, was unsafe as the sole basis for conviction, and at most showed that the appellant was last seen with the victim. (¶¶ 10, 12)
- A recovery memo that does not record the place of recovery, with its independent witnesses unexamined, does not prove a discovery under Section 27 of the Evidence Act. With that key link in the chain of circumstances unproved, guilt beyond reasonable doubt was not established. (¶ 13)
- The trial court must put each material circumstance to the accused specifically and separately, and circumstances not put must ordinarily be excluded. The omission is a serious irregularity that vitiates the trial if it causes prejudice. Whether it can be cured depends partly on how much time has passed. Material circumstances must be explained to the accused in a language he understands. (¶ 15)
- Since the accused decides whether to lead defence evidence only after his Section 313 examination, failing to put the main witnesses' version, and even the date and place of the crime, prejudiced the appellant. Fifteen and a half years after the incident, and after about twelve years and nine months in custody, remand was unjust, so he was entitled to acquittal even if the child's evidence were believed. The Court found it shocking that the trial court had imposed death in such a case. (¶¶ 16, 17)
- The Public Prosecutor must ensure a fair trial. He must remain present at the Section 313 examination, help frame the questions and point out any omitted material. Where the accused is unrepresented, he must alert the court to the need for free legal aid and ask it not to frame charges or record evidence before legal aid is offered. (¶¶ 18, 23)
- The appellant was unrepresented when charges were framed and when the chief examination of the main witness was recorded. Appointed legal aid counsel was repeatedly absent, so evidence was recorded in his absence, and the cross-examination was inadequate. Recording chief examination without defence counsel deprives the accused of the right to object to questions, including leading questions. (¶¶ 21, 22)
- The Court laid down norms on legal aid. The court must inform the accused of the right to free legal aid at every material stage from remand onwards, including for bail, and appoint a lawyer when one is wanted. In cases punishable with life imprisonment or death, only advocates with at least ten years of criminal-side practice should be appointed, and in grave, complex cases a senior member of the Bar may be appointed. Legal Services Authorities must train and monitor legal aid advocates and keep the same advocate throughout the trial where possible. Legal aid must be effective and competent, failing which Article 21 is violated. (¶¶ 20, 23)
Result
Appeal allowed; conviction and sentence set aside and the appellant acquitted; bail bonds cancelled; copy of the judgment directed to be sent to all State Legal Services Authorities.