High Court Kerala High Court

Mani vs State Of Kerala on 5 January, 2011

Kerala High Court
Mani vs State Of Kerala on 5 January, 2011
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 552 of 2010(D)


1. MANI,C.NO.4469,CENTRAL PRISON,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA, REP. BY
                       ...       Respondent

                For Petitioner  :ADV.THOMSTINE K.AUGUSTINE[STATE BRIEF]

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MRS. Justice K.HEMA

 Dated :05/01/2011

 O R D E R
                             K.HEMA, J.
             -----------------------------------------------
                  Crl. Appeal No.552 of 2010
             -----------------------------------------------
                    Dated 5th January, 2011.

                          J U D G M E N T

This appeal arises from the conviction and sentence

passed against appellant under Section 307 of the Indian Penal

Code to undergo rigorous imprisonment for a period of ten

years and to pay a fine of Rs.25,000/- and in default of payment

of fine to undergo simple imprisonment for a further period of

one year. Fine if recovered was directed to be paid as

compensation to the injured. Set off was allowed under Section

428 of the Criminal Procedure Code.

2. According to prosecution, on 14.6.2008, at about

7.15 p.m., due to previous enmity of accused against PW5,

accused stabbed him on the left side of the stomach and

inflicted injury in attempt to commit murder. To prove the

prosecution case, PW1 to PW12 were examined and Exts.P1 to

P14 and MO1 to MO7 series were marked.

3. The accused was questioned and he denied all the

circumstances and evidence appearing against him. He stated

that he is an Adivasi. He is living by selling forest produce and

doing coolie work. There was some quarrel between his wife

Crl.Appeal No.552/10 2

and the wife of PW5, the injured. For settlement, PW5 called

him to his house. When he went there for amicable settlement,

he was assaulted by PW5 and his wife and there was a scuffle.

PW5 sustained injuries with the knife, which he was holding.

PW5 had enmity towards accused since he sustained a huge

expense for his treatment. The appellant does not have any

property or any relatives who can help him and therefore, he

could not convince the court about his innocence.

4. The trial court, on analysis of the evidence on

record found that prosecution proved its case and that accused

committed offence under Section 307 of the Indian Penal Code.

The trial court also found that the accused attempted to commit

murder by stabbing PW5 thrice and he sustained injuries, which

were fatal.

5. The accused was undefended and hence,

Sri.Thomstine K.Augustine was appointed as State Brief. Heard

both sides and perused the records. Learned counsel for

accused submitted that no independent witness was examined

Crl.Appeal No.552/10 3

in this case, even though according to prosecution, CW3 was an

independent witness. She is residing near the place of

occurrence and the incident took place in front of her house.

PW4 and PW6 were eye witnesses. PW4 is a close friend of

PW5, and PW6 is wife of the injured, PW5. PW4 has admitted

that he is residing half a kilometer away from the place of

occurrence. It is also submitted that the weapon did not contain

any blood. The weapon is stated to be recovered on a

statement given by the accused.

6. Learned Public Prosecutor submitted that PW4 to

PW6 have given evidence consistently with each other and it is

supported by medical evidence also. PW5 sustained a serious

injury and the conviction entered against appellant is only

sustainable, it is argued.

7. On hearing both sides and on going through the

records, it appears to me that accused did not get effective

legal aid to contest the matter. The accused requested the

court for legal aid and it appears that a counsel defended the

Crl.Appeal No.552/10 4

case on behalf of appellant. But, cross examination of the

witnesses will reveal that there was practically no cross

examination or challenge on the evidence. While questioned

under Section 313 of the Criminal Procedure Code itself,

accused stated that he is an adivasi without any support or

financial background and he could not convince the court about

his innocence.

8. I am satisfied, on a perusal of records that the

appellant did not get effective legal aid to contest the matter.

The accused has a case that PW5 called him to his house to

settle a dispute and he was attempted to be attacked by PW5

from his house. In the meantime, PW5 sustained an injury with

the weapon used by PW5 himself. PW5 sustained a very

serious injury, which is penetrating, which caused 3 rib fracture.

The weapon is also sufficiently long. Hence, it is likely that the

weapon will be sufficiently stained with blood. But, the report of

the Chemical Analyst shows that there was no sufficient blood

and hence presence of blood could not be ascertained. But,

Crl.Appeal No.552/10 5

these facts were not brought out in cross examination and

confronted with the Investigating Officer or other witnesses. It

is only in the appellate stage that these facts are submitted.

This needs a probe.

9. It is also to be seen that there is some dispute

regarding the place of occurrence. The witnesses ought to

have been cross examined with respect of the place where the

incident happened. The scene mahazar may throw sufficient

light on the place where the incident occurred, but those facts

were brought out in evidence by the defence lawyer during

trial. To support the defence version that incident happened in

PW5’s house, practically nothing was asked to the witnesses

and no materials are elicited in the cross examination which

ought to have been done. This appears to have happened

because of the inexperience of the counsel, who defended the

case of appellant who had no financial background and who

sought for legal aid free of cost.

10. The non examination of the independent witness

Crl.Appeal No.552/10 6

is also material, but no questions are put in these lines to the

Investigating Officer. No cross examination is made regarding

importance of examination of the independent witness, her

presence at the scene etc. So also, as pointed out by the

learned defence counsel, availability of light is very important.

In the F.I. statement, the incident is seen in the light of a torch,

but in evidence, it is mentioned that there was moon light as

well as light from neighbouring house. There are several

aspects which were to be explored during trial, but nothing

effective was done. I feel that the accused did not get sufficient

legal aid and a farce of a trial was conducted. I am not going

deeper into the various other aspects which are relevant for

consideration, since a remand will be necessary and any

observation made by this court may prejudice either of the

parties.

11. The very reason that the accused did not get

sufficient legal aid itself is a ground to set aside the conviction

and sentence. A criminal trial cannot be a drama. The court

Crl.Appeal No.552/10 7

must be satisfied that the accused is defended properly by the

counsel especially when legal aid is given by the court at the

cost of State. The court ought to have shown more

responsibility to appoint a sufficiently experienced lawyer to

defend the accused, taking into consideration the seriousness

of the offence. In the absence of it, the accused can be said to

have denied even the fundamental right guaranteed under the

Constitution of India to get legal aid-Legal aid means, effective

legal aid.

12. In the result, I find that the conviction and

sentence are vitiated and those are liable to be set aside and I

do so. Hence, the following order is passed :

(i) The conviction and sentence passed against

appellant under Section 307 of the Indian Penal

Code are set aside.

(ii) The case is remanded to the trial court for fresh

trial and disposal in accordance with law, in the

light of the observations made in this order.

Crl.Appeal No.552/10 8

(iii) If any request is made by accused to cross

examine any witness, the trial court shall give

an opportunity to appellant to do so.

(iv) The trial court is directed to appoint a sufficiently

experienced lawyer who will be able to conduct

a case involving the offence under Section 307

of the Indian Penal Code.

This appeal is allowed.

K.HEMA, JUDGE.

tgs