Bharatiya Nagarik Suraksha Sanhita, 2023 – ss.408, 432 – Code of Criminal Procedure, 1973 – ss.367, 391 – Penal Code, 1860 – ss.302, 201, 376(2)(i), 376AB – Protection of Children from Sexual Offences Act, 2012 – ss.5, 6 – Accusedappellant charged for subjecting his step-daughter to sexual assault and throttling her to death – On date of examination of PW-1, advocate of accused-appellant was not present – Accused-appellant pleaded he could not afford the fees and was unable to engage counsel – On prayer of accusedappellant, Trial Court appointed legal aid defence counsel to represent accused-appellant – On the very same day, trial court proceeded to record the evidence of PW-1 and ensured that cross-examination of witness is completed by the legal aid counsel – Subsequently, accused-appellant was convicted and awarded death sentence – The High Court confirmed the death sentence – Correctness:
Held: The documents available on the record indicate that the accused-appellant was shown to be educated till 4th standard only – Thus, there is no dispute on the aspect that the accusedappellant was a semi-literate, rustic villager – The fact that the accused-appellant hails from a very poor background is also borne out from the record inasmuch as, he could not even afford the fees of the lawyer he had engaged to defend him, in a case which had the potential of capital punishment right from the inception – Denial of a competent experienced defence counsel to an accused tantamounts to deprivation of fair trial – Providing an experienced legal aid defence counsel to an unrepresented accused in criminal proceedings is within the scope of the Fundamental Right guaranteed by Art. 22(1) of the Constitution of India – In the instant case, the order sheet of the trial Court does not even indicate whether the legal aid defence counsel was provided with the copies of the documents relied upon by the prosecution by following the mandate of s.207 CrPC – The trial Court ought to have given proper time and opportunity to the legal aid defence counsel to prepare the matter – Providing such an opportunity to the accused-appellant was absolutely essential and imperative for a just decision of the case – This Court hereby exercise powers u/s.408 BNSS (corresponding, s.367 CrPC) r/w. s.432 of BNSS (corresponding, s.391 CrPC) and remit the matter back to the trial Court, i.e., Second ASJ and Special Judge (POCSO Act), for further examination of the star prosecution witness, i.e., (PW-1) – The trial Court to ensure that the complete record is provided to the legal aid defence counsel well in advance. [Paras 14, 15, 17, 19, 20, 21, 23, 25, 27]
Legal Aid Authorities – National Legal Service Authority – Legal Aid Defense Counsel – Core Principles – Discussed. [Para 16] Witness – Witness Protection Scheme – Appropriate protection to witness – Directions issued. [Paras 26-29]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Ankit Gyan. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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