Ashok vs State of Uttar Pradesh

Held: Evidence of victim’s cousin, the only eyewitness, cannot be held to be of sterling quality – It is unsafe to base conviction only on his testimony – At the most, it can be the evidence of the last seen together – As regards, the recovery of articles at instance of the appellant, the prosecution failed to prove that the recovery was from a particular place – Thus, evidence of recovery to be kept out of consideration – Appellant's guilt beyond reasonable doubt not established – As regards, the examination of the appellant u/s.313 Cr.P.C., material circumstances appearing in evidence against the appellant, version of the main prosecution witnesses not been put to him – Unless all material circumstances appearing against him in evidence are put to the accused, he cannot decide whether he wants to lead any defence evidence – Even the date and place of the crime allegedly committed by the appellant not put to the appellant – Thus, the appellant was prejudiced – Even assuming that failure to put material to the appellant in his examination was an irregularity, it cannot be cured by remanding the case to the trial court, since the incident is fifteen and a half years old and after such a long gap, it would be unjust to ask the appellant to explain the circumstances and material specifically appearing against him in the evidence – Moreover, the appellant had been incarcerated for about twelve years and nine months before he was released on bail – Even assuming that the evidence of eye witness can be believed, the appellant entitled to acquittal on the ground of the failure to put incriminating material to him in his examination u/s.313 CrPC – Both the trial court and High Court overlooked non-compliance with the requirements of s.313 CrPC – Shockingly, the trial court imposed the death penalty in a case which ought to have resulted in acquittal – Imposing capital punishment in such a case shocks the conscience of this Court – There was failure of the State to provide timely and quality of legal aid to the appellant – Thus, impugned judgments and orders set aside and the appellant is acquitted – Directions regarding the role of the Public Prosecutor and appointment of legal aid lawyers issued – Code of Criminal Procedure, 1973 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. [Paras 12, 13, 14-17, 19, 21-24]

Code of Criminal Procedure, 1973 – s.313(5) – Power to examine accused – Role of the public prosecutor:

Held: Under sub-Section (5) of s.313 (sub-Section (5) of s.351 of Bharatiya Nagarik Suraksha Sanhita, 2023), the court is entitled to secure the assistance of the public prosecutor and the advocate representing the accused to prepare the questions to be put in the examination u/s.313 – Public Prosecutor has to play an active role in ensuring that every trial is conducted in a fair manner and in accordance with the law – It is the Public Prosecutor's duty to invite the Court's attention to the requirement of putting all incriminating material to the accused – Thus, the Public Prosecutor under an obligation to remain present when the examination of the accused is made to assist the Court – Bharatiya Nagarik Suraksha Sanhita, 2023. [Para 18]

Constitution of India – Arts.21 and 39A – Equal justice and free legal aid – Failure to provide legal aid to the accused – Effect: Held: Right to get legal aid is a fundamental right of the accused, guaranteed by Art.21 – Even u/s.303 CrPC, every accused has a right to be defended by a pleader of his choice – Under s.304 CrPC, it is the duty of the Court to ensure that a legal aid lawyer is appointed to espouse the cause of the accused free of costs – When an accused has either not engaged an advocate or does not have sufficient means to engage an advocate, it is the trial court's duty to inform the accused of his right to obtain free legal aid, which is a right covered by Art.21 – ss.340 and 341 of the Bharatiya Nagarik Suraksha Sanhita, 2023 correspond to ss.303 and 304 CrPC – On facts, there was failure of the State to provide timely and quality of legal aid to the appellant – Code of Criminal Procedure, 1973 – Bharatiya Nagarik Suraksha Sanhita, 2023. [Paras 19, 20]

Criminal trial – Role of the Public Prosecutor and appointment of legal aid lawyers – Issuance of directions regarding the role of the Public Prosecutor and appointment of legal aid lawyers:

Held: (i)

Duty of the Court to ensure that proper legal aid is provided to an accused;

(ii)

Duty of Public Prosecutor to point out to the Court the requirement of providing accused free legal aid;

(iii)

Public Prosecutor to request the Court not to proceed without offering to provide legal aid to the accused;

(iv)

Duty of the Public Prosecutor to assist the trial court in recording the accused's statement u/s. 313 CrPC. If the Court omits any material circumstance against the accused, the Public Prosecutor must bring it to the Court's notice and assist in framing questions. It is the Public Prosecutor's duty to prevent trial infirmities that may prejudice the accused.;

(v)

Accused entitled to free legal aid at all material stages, starting from remand, including bail petitions; (vi)

Accused to be made aware of his right to get free legal aid at all material stages;

(vii) For all the cases where there is a possibility of a life sentence or death sentence, appoint legal aid advocates with at least 10 years of criminal practice, and in other cases the accused entitled to a legal aid advocate who has good knowledge of the law and experience of conducting trials on the criminal side. Legal Services Authorities at all levels to give proper training to the newly appointed legal aid advocates;

(viii) Legal Services Authorities to monitor the work of the legal aid advocate and to ensure that they attend the court regularly and punctually when the cases entrusted to them are fixed;

(ix)

It is necessary to ensure that the same legal aid advocate is continued throughout the trial unless there are compelling reasons to do so;

(x)

In cases of serious nature and complicated legal and factual issues, the Court may appoint a senior member of the Bar who has a vast experience of conducting trials;

(xi)

Accused is entitled to free trial and if effective legal aid is not made available to an accused it would amount to infringement of his fundamental rights guaranteed by Art. 21; and

(xii) 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. 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. [Para 23]