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.
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Crl. Appeal No.552 of 2010
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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
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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
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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
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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.
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(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