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Abdul Razack @ Cheriyan @ Krk vs State Of Kerala on 27 August, 2009

Kerala High Court
Abdul Razack @ Cheriyan @ Krk vs State Of Kerala on 27 August, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL.A.No. 1771 of 2005()


1. ABDUL RAZACK @ CHERIYAN @ KRK,
                      ...  Petitioner

                        Vs



1. STATE OF KERALA.
                       ...       Respondent

                For Petitioner  :SRI.P.SAMSUDIN

                For Respondent  :PUBLIC PROSECUTOR.

The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.S.GOPINATHAN

 Dated :27/08/2009

 O R D E R
                                                                   ' C.R.'

      K.BALAKRISHNAN NAIR & P.S.GOPINATHAN, JJ.

             ````````````````````````````````````````````````````
                  Crl. Appeal No. 1771 OF 2005
             ````````````````````````````````````````````````````
             Dated this the 27th day of August, 2009

                           J U D G M E N T

Balakrishnan Nair, J.

The appellant, feeling aggrieved by his conviction and

the sentence imposed on him in Sessions Case No.262/01 on the

files of the Court of Sessions, Manjeri, has preferred this Criminal

Appeal. The case against the appellant was as follows:-

The appellant was residing with his wife Rasiya and two

children in a rented building bearing Door No.7/87 of Edakara

Grama Panchayat. On the fateful day, there was a quarrel

between the husband and wife and this led to the appellant

pouring kerosene over Rasiya and setting fire to her at about 10

p.m. She was taken to the nearby hospital at Nilambur and from

there to the Medical College Hospital, Kozhikode. While

undergoing treatment, she breathed her last on 2.9.1997. Based

on the F.I. Statement given by the deceased and the dying

Crl.Appeal No.1771/05
: 2 :

declaration made before the learned Magistrate, the police charge-

sheeted the appellant for the offence punishable under Section

302 of the Indian Penal Code (for short IPC). The Judicial First

Class Magistrate, before whom the charge-sheet was filed,

committed the case for trial by the Sessions Court.

2. Before the trial court, the appellant pleaded not guilty

to the charge. The prosecution, to prove its case, examined PWs

1 to 15 and marked Exts.P1 to P16. Material objects MO1 to MO6

were also produced. The trial court found the appellant guilty of

the offence under Section 302 of the IPC, sentenced him to

undergo imprisonment for life and also to pay a fine of

Rs.10,000/-. In default, it was ordered that he should undergo

rigorous imprisonment for a further period of one year.

3. The aggrieved appellant attacks the judgment of the

court below on various grounds. One of the contentions raised

before us was that the defence counsel arranged by the Sessions

Court, in terms of Section 304 of the Cr.P.C. read with Rules 3

and 4 of the Legal Aid to Accused Rules, 1992 was a raw junior.

The examination of the witnesses in this case started on 7.2.2005.

Going by Annexure-A1 produced along with Crl.M.A.No.8247/09, it

Crl.Appeal No.1771/05
: 3 :

is pointed out that the lawyer, who defended the appellant, was

enrolled only on 20.10.2002. That means, he has less than three

years’ practice and so, the engagement of such a lawyer was

contrary to the aforementioned provision of the Cr.P.C. and the

Rules of the Legal Aid to Accused Rules, 1992, it is submitted.

The defence arranged by the State for the appellant, who cannot

afford to engage a lawyer by himself, was so poor that he did not

get a fair trial. So, the conviction and sentence imposed on him is

unsustainable in law, it is submitted. In support of the above

submission, reliance was placed on the decision of the Apex Court

in Kishore Chand Vs. State of Himachal Pradesh [1991 (1) SCC

286]. The appellant, apart from attacking the conviction and

sentence, on other grounds, highlighted the above vitiating

circumstance affecting the trial and prayed for remand of the

matter, so that he can get the service of an experienced lawyer for

cross-examination of the witnesses.

4. We heard the learned Public Prosecutor on the above

point. The learned Public Prosecutor submitted that going by the

facts of the case, no prejudice has been caused to the appellant

and even if there is violation of Section 304 of the Cr.PC. or of the

Crl.Appeal No.1771/05
: 4 :

aforementioned Rules, unless prejudice is established, it is not

necessary for this Court to remand the matter.

5. We considered the rival submissions made at the Bar.

We have gone through the entire evidence on record, including the

deposition of the witnesses and the Exhibits produced by the

prosecution. Before dealing with the contentions of the parties, we

will presently refer to the relevant statutory provisions. Section

304 Cr.P.C. reads as follows:-

” 304. Legal aid to accused at State

expense in certain cases – (1) Where, in a

trial before the Court of Session, the accused

is not represented by a pleader, and where it

appears to the Court that the accused has

not sufficient means to engage a pleader, the

Court shall assign a pleader for his defence

at the expense of the State.

(2) The High Court may, with the

previous approval of the State Government,

make rules providing for –

(a) the mode of selecting pleaders

for defence under sub-section (1);

(b) the facilities to be allowed to

such pleaders by the Courts;

(c) the fee payable to such pleaders

by the Government, and generally, for

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: 5 :

carrying out the purposes of sub-section (1).

(3) The State Government may, by

notification, direct that, as from such date as

may be specified in the notification, the

provisions of sub-sections (1) and (2) shall

apply in relation to any class of trials before

other Courts in the State as they apply in

relation to trials before the Courts of

Session.”

The Kerala High Court has framed Rules under sub-section 2 of

Section 304 of the Cr.P.C. as Legal Aid to Accused Rules, 1992.

Rules 3 and 4 of the aforementioned Rules read as follows:-

” 3. Panel of Pleaders – (1) Every

Criminal Court shall maintain a panel of

pleaders consisting of not less than five, for

the purpose of these Rules.

(2) All Magistrate Courts of co-

ordinate jurisdiction functioning at a place

shall be treated as one Court for the purpose

of this Rule and the number of pleaders in the

panel shall not be less than five times the

number of such courts of co-ordinate

jurisdiction and the seniormost among the

Magistrates shall prepare the panel.

(3) All benches of the Sessions Court

(including Additional Sessions and Assistant

Sessions) functioning at a place shall be

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: 6 :

treated as one court for the purpose of this

Rule and the number of pleaders in the panel

shall not be less than five times the number of

such benches and the Sessions Judge shall

prepare the panel.

(4) Additional Sessions Courts and

Assistant Sessions Courts functioning at a

place different from the seat of the Sessions

Judge of a particular Sessions Division shall

have a separate panel in accordance with

these Rules and the Additional or Assistant

Sessions Judge shall prepare the panel.

(5) The panels to be prepared under

sub-rules (3) and (4) shall consist of two

panels of Advocates, a senior panel and a

junior panel and the number of Advocates to

be included in each panel shall be the same.

(6) (a) No Advocate who has put in

less than 5 years of actual practice shall be

eligible for inclusion in the senior panel.

(b) No Advocate who has put in less

than 2 years of actual practice shall be

eligible for inclusion in the junior panel.

4. Appointment of Pleaders –

Advocates in the senior panel alone shall,

ordinarily, be appointed in sessions case and

in other cases where the offence is punishable

with imprisonment for more than 10 years. In

all other cases, including criminal appeals

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and revisions, Advocates in the Junior panel

shall, as far as possible, be appointed unless

the Court is of the opinion that an Advocate

from the senior panel is necessary in view of

the complexity of the case.”

6. Going by Rule 4 of the above quoted Rules, for

sessions trials, where the offence is punishable with imprisonment

for more than ten years, ordinarily a member of the senior panel

shall be engaged to render legal aid to the accused. Sub-rule 6 of

Rule 3 provides that only the persons having five years’ actual

practice shall be eligible for inclusion in the senior panel. So, the

defence lawyer was engaged in this case in violation of Rules 3

and 4 quoted above. During the trial, even if any statutory

provision is violated, ordinarily, the same will not by itself vitiate

the trial or the resultant conviction. The point to be considered is

whether any prejudice has been caused. When we went through

the evidence, we noticed that on many material points no effective

cross-examination was made by the defence lawyer. The

contradictions in the deposition of the witnesses with reference to

their earlier statements before the police were not put to them or

marked. The omissions in the earlier statements with reference to

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: 8 :

the statements made in the box were also not brought to the

notice of the witnesses concerned. Further, concerning many

material witnesses, we find practically there was no cross-

examination. So, we are of the view that the engagement of a

junior lawyer to defend the accused has seriously prejudiced the

appellant. He did not get a fair trial. Article 39A of the

Constitution of India proclaims that the State shall secure that the

operation of the legal system promotes justice, on a basis of equal

opportunity, and shall, in particular, provide free legal aid, by

suitable legislation or schemes or in any other way, to ensure that

opportunities for securing justice are not denied to any citizen by

reason of economic or other disabilities. In discharge of the above

obligation, Parliament has framed Section 304 of the Cr.P.C. In

obedience to the mandate of sub-section 2 of Section 304, the

High Court has framed Legal Aid to Accused Rules, 1992. Article

21 proclaims that no person shall be deprived of his life or

personal liberty except according to procedure established by law.

The view that any law is sufficient to deprive the life or personal

liberty, taken in A.K.Gopalan Vs. State of Madras [AIR 1950 SC

27] has been buried deep and now it is well settled that the

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procedure contemplated under Article 21 should be a just, fair and

reasonable procedure. See the leading decision on this point

Maneka Gandhi Vs. Union of India [AIR 1978 SC 597]. The

same principle has been dealt with by the Apex Court in the

decision in Suk Das Vs. Union Territory of Arunachal Pradesh

[1986 (2) SCC 401]. It is equally well-settled now that if fair trial is

denied to an accused and as a result, his life or liberty is deprived,

the same will amount to violation of Article 21 of the Constitution of

India. In Kishore Chand(Supra), the decision cited by the learned

counsel for the appellant, it was held as follows:-

” 12. ………………………… Undoubtedly,

heinous crimes are committed under great

secrecy and that investigation of a crime is a

difficult and tedious task. At the same time

the liberty of a citizen is a precious one

guaranteed by Article 3 of Universal

Declaration of Human Rights and also Article

21 of the Constitution of India and its

deprivation shall be only in accordance with

law. The accused has the fundamental right

to defend himself under Article 10 of

Universal Declaration of Human Rights. The

right to defence includes right to effective

and meaningful defence at the trial. The

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poor accused cannot defend effectively and

adequately. Assigning an experienced

defence counsel to an indigent accused is a

facet of fair procedure and an inbuilt right to

liberty and life envisaged under Articles 14,

19 and 21 of the Constitution. ………………

13. Though Article 39-A of the

Constitution provides fundamental rights to

equal justice and free legal aid and though

the State provides amicus curiae to defend

the indigent accused, he would be meted out

with unequal defence if, as is common

knowledge the youngster from the bar who

has either a little experience or no

experience is assigned to defend him. ………”

7. Though the learned Public Prosecutor tried to

distinguish the decision on facts, we think the principle laid down

therein is a sound principle which binds us also. We also notice

that poor lawyering of the defence lawyer is taken as a ground,

vitiating the trial, in all civilised countries. The U.S. Supreme Court

in Strickland Vs. Washington [80 Lawyers’ Edition 2d 674] has

held that ineffective assistance of defence counsel in criminal trial

will violate the “due process” clause. Similarly, the Court of

Appeal in Regina Vs. Ensor [1989 (1) WLR 497] observed that ” If

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the court had any lurking doubt that the appellant might have

suffered some injustice as a result of fragrantly incompetent

advocacy by his advocate, the court would quash the conviction”.

8. Keeping the above principles in mind, when the facts of

this case are considered, we feel that the defence counsel has

failed to properly conduct the case. The statements of the

witnesses have become evidence without subjecting the same to

proper cross-examination. The defence of the accused was not

effectively projected. As suggested by the learned counsel for the

appellant, if the case was properly defended, the appellant might

have been acquitted on the ground of benefit of doubt. Without

meaning any disrespect to the counsel, who defended the

accused, we are constrained to say that there was incompetent

advocacy attributable to lack of experience and the same resulted

in vitiating the trial of the appellant. On this ground alone, we are

of the view that the conviction of the appellant is liable to be set

aside. Therefore, it is unnecessary to go into other grounds raised

by the appellant.

9. In the result, the Criminal Appeal is allowed. The

conviction and sentence imposed on the appellant is set aside.

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Hereafter, he shall be treated as an undertrial prisoner. The trial

court shall issue warrant for production of the appellant before it.

Upon his production, if bail application is moved, the trial court

shall deal with the same in accordance with law. If bail is not

granted, he shall be kept in judicial custody in the jail, where

remand prisoners from the trial court are lodged, ordinarily.

10. The trial court shall arrange a competent lawyer to

defend the appellant. The witnesses examined shall be recalled

and the said counsel shall be given an opportunity to cross-

examine them. Needless to say, the prosecution will be given a

chance to re-examine them. Thereafter, the trial court shall

proceed with the case in accordance with law.

The Criminal Appeal is allowed as above.

Sd/-

(K.BALAKRISHNAN NAIR, JUDGE)

Sd/-

(P.S.GOPINATHAN, JUDGE)

aks
// True Copy //

P.A. to Judge

Crl.Appeal No.1771/05
: 13 :

K.BALAKRISHNAN NAIR &

P.S.GOPINATHAN, JJ.

“““““““““““““““““““““`
Crl. Appeal No. 1771 OF 2005
“““““““““““““““““““““`

J U D G M E N T

27th day of August, 2009

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