While reiterating the most fundamental canon of criminal law, the Delhi High Court has in a most learned, laudable, landmark and latest judgment titled Sunil vs State in CRL.A. 273/2009 that was reserved on December 21, 2022 and then finally pronounced on January 5, 2023 has laid down in no uncertain terms that the right of cross-examination to any accused is the most vital part of a criminal trial. It must be mentioned here that the Single Judge Bench of Hon’ble Ms Justice Swarana Kanta Sharma has minced just no words to pronounce most explicitly that, “There is no doubt that right of cross-examination to any accused in a criminal case to discredit the witnesses and to test veracity of the statement is the most vital part of a criminal trial.” It ought to be noted that the Delhi High Court made this pertinent observation while dealing with the plea by an accused who was convicted for the offences punishable under Sections 399/402 of the Indian Penal Code without being effectively represented by a lawyer. Very rightly so!
At the very outset, this brief, brilliant and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma sets the ball in motion by first and foremost putting forth in para 1 that, “The present appeal has been filed by appellant under Section 374 read with Section 482 of Code of Criminal Procedure, 1973 (“Cr.P.C.”) seeking setting aside of the impugned judgment dated 19.03.2009 and order on sentence dated 30.03.2009 passed by the learned Additional Sessions Judge-01, South, Patiala House Court, New Delhi in the Sessions Case No. 124/07 vide which the appellant has been convicted for the offences punishable under Section 399/402 of the Indian Penal Code, 1860 (“IPC”) and Section 25 of Arms Act, 1959.”
To put things in perspective, the Bench then aptly envisages in para 2 that, “The facts upon which the present FIR was registered are that on 11.07.2007, Sub Inspector K.C. Kaushik alongwith other staff consisting of Head Constable Pritam Singh, Constable Ram Saran and Constable Maz Ahmed were on patrolling duty and later, were also joined by Constable Dev Lagan. A secret information was received by SI K.C. Kaushik that in MCD/ACC Park, Panchsheel Park, 5-6 miscreants are sitting intending to commit some crime. The information was passed on to the S.H.O, Police Station Malviya Nagar on telephone. 4-5 passersby were requested to join raiding party but they did not join and left without revealing their names and addresses. Thereafter, SI K.C. Kaushik alongwith raiding team reached at Badarpur Service Lane near Panchsheel Park near MCD/ACC Park at about 10.00 PM. SI K.C. Kaushik had directed the raiding party to go to South West corner carefully and HC Pritam Singh heard the conversation of accused persons and informed him that five accused persons were sitting while one had a country made revolver in his hand. He further revealed that they were talking to each other about tying the guard of one Sabharwal and then taking away the valuables kept in the kothi. They were also saying that they will open fire if anyone will raise alarm. Thereafter, the raiding team surrounded the accused persons but they started running in different directions. Four accused named Omkar, Sukhpal, Sunil and Suraj were overpowered. One loaded country made revolver was recovered from accused Sukhpal. One buttondar knife was recovered from accused Sunil. One raxine bag was also recovered from accused Sunil which contained 2.5 metres long plastic rope and a black coloured cloth. One knife was recovered from accused Omkar, however, fifth accused had escaped who could not be arrested by the police. Thereafter, investigation was carried out. Chargesheet was prepared for offences punishable under Section 399/402 IPC read with Section 25 of Arms Act and charges were framed against four accused persons mentioned above. Vide the impugned judgment, four accused persons were convicted for committing offences punishable under Section 399/402 IPC as well as under Section 25 of Arms Act. As per prosecution story, no arms were recovered from accused Suraj, however, he was convicted for offence punishable under Section 25 of Arms Act.”
As we see, the Bench observes in para 6 that, “In the present case, it is alleged by the prosecution that Head Constable Pritam Singh had overheard the accused persons making preparation and hatching conspiracy to commit offence of dacoity at house of one Sabharwal after tying his guard. However, a perusal of material on record reveals that neither the place where the accused persons were allegedly preparing to commit the offence in question was identified nor the accused were made to point out the same during investigation. This casts serious doubt on the case of prosecution as to whether such a person or house was actually situated or located nearby or even existed for the commission of offence in question.”
Be it noted, the Bench then discloses in para 7 that, “A perusal of the record also reveals that it is mentioned in the FIR that during search of present appellant Sunil, five black masks of cloth as well as plastic rope measuring 2.5 metres were recovered from him, however, the testimony of all the witnesses examined in the Court including the testimony of the Investigating Officer is completely silent on this point. In the testimony, there is nowhere stated that raxine bag, masks and plastic rope were recovered from the possession of appellant Sunil. Though the seizure memo regarding the seizure of bag, plastic rope and masks is on record, the witnesses have neither spoken about it nor has the said case property been produced before the Court or identified by any of the witnesses including the Investigating officer. Since it was not produced before the Court and neither of the witnesses have spoken about the same despite it being a crucial piece of evidence against the accused persons, it has made the case of the prosecution doubtful. The IO has also not explained in his statement or in the FIR, where the entire proceedings are mentioned, as to how the rope was measured to be 2.5 metres in length which has been mentioned in the seizure memo. The above discussion makes it clear that the learned Trial Court failed to take note of the above said while appreciating evidence.”
It is also worth noting that the Bench while citing the relevant case law states in para 17 that, “Similarly, the observations of Hon’ble Apex Court, on right to fair trial and effective legal aid, in Mohd Hussain v. State (Govt. of NCT of Delhi) (2012) 2 SCC 584 are reproduced herein-under:
“13. It will, thus, be seen that the trial court did not think it proper to appoint any counsel to defend the appellant/accused, when the counsel engaged by him did not appear at the commencement of the trial nor at the time of recording of the evidence of the prosecution witnesses. The accused did not have the aid of the counsel in any real sense, although, he was as much entitled to such aid during the period of trial. The record indicates, as I have already noticed, that the appointment of learned counsel and her appearance during the last stages of the trial was rather proforma than active. It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case, to confront the witnesses against him not only on facts but also to discredit the witness by showing that his testimony-in-chief was untrue and unbiased.
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42. While holding the appellant guilty the trial court has not only relied upon the evidence of the witnesses who have been cross-examined but also relied upon the evidence of witnesses who were not cross-examined. The fate of the criminal trial depends upon the truthfulness or otherwise of the witnesses and, therefore, it is of paramount importance. To arrive at the truth, its veracity should be judged and for that purpose cross- examination is an acid test. It tests the truthfulness of the statement made by a witness on oath in examination-in-chief. Its purpose is to elicit facts and materials to establish that the evidence of witness is fit to be rejected. The appellant in the present case was denied this right only because he himself was not trained in law and not given the assistance of a lawyer to defend him. Poverty also came in his way to engage a counsel of his choice…””
Most glaringly, the Bench lays bare in para 18 noting that, “Despite there being catena of judgments emphasizing the need and importance of legal aid, no effective legal aid was provided to the accused persons in present case. Order sheets were written in most indifferent manner by the learned Trial Court. At most places, the name of the counsel is not mentioned in the order sheets. The name, presence or absence of the counsel was not mentioned in any of the evidence recorded. The problem does not end here. The present case was being tried for an offence of preparation of dacoity which attracts punishment upto 10 years. No legal aid was available to the accused almost throughout the trial, most glaringly, at the time of final arguments and recording of evidence. The Trial Court itself should have realized the duty cast on it to provide effective legal aid to an accused who is poor and marginalized and could not defend himself. The Courts are the guardians of a person’s liberty and are duty bound by Constitution as well as their oath to ensure fair trial to an accused which is the constitutional goal set by the Indian Constitution itself.”
Most fundamentally and obviously also most significantly, the Bench minces no words to hold in para 22 that, “In the present case, the absence of cross-examination has resulted in gross miscarriage of justice and the Court has to guard against such an eventuality. It is to be remembered that in India, the absence of fair and proper trial is not only violation of fundamental principles of judicial procedure and constitutional mandate, but also violation of mandatory provisions of Section 304 Cr.P.C. The assistance of a legal counsel, in a meaningful way, was absent throughout the trial. Judiciary has a crucial role to play in ensuring enforcement of human rights and has to meet the great challenge towards making justice accessible in practical terms to the poor in the country.”
What’s more, the Bench then holds in para 24 that, “This is a classic case where all cannons of justice were kept aside while passing the impugned judgment as the accused was not provided legal aid which he was entitled to get under the Constitution of India as well as under Cr.P.C. The accused has faced trial for last 15 long years. At times, though the agony of a person undergoing trial is not mentioned on the paper while a Judge writes a judgment, the trial which has been prolonged beyond 15 years is an agony itself. The stress of facing a criminal trial is punishment unannounced in a case, as the present one.”
Above all, the Bench then rightly in concluding part holds in para 25 that, “Considering the overall facts and circumstances of the case, this Court’s judicial conscience does not permit to now remand back the matter and direct the learned Trial Court to again conduct a fresh trial. In view thereof, the accused is acquitted of all the charges since the trial in itself was vitiated due to non-assistance of accused by legal aid counsel, besides existence of several inconsistencies and lacunae in the case of prosecution before the learned Trial Court.”
In conclusion, we thus see that the Single Judge Bench of the Delhi High Court comprising of Hon’ble Ms Justice Swarana Kanta Sharma has made it absolutely clear that the right of cross-examination to accused to test the veracity of a statement is the most vital part of a criminal trial. It certainly cannot be ever abandoned diluted or compromised. No doubt, it is equally true which must be borne in mind that the absence of a fair and proper trial would definitely also be in utter violation of fundamental principles of judicial procedure on account of breach of mandatory provisions of Section 304 of Cr.P.C. So, it thus merits no reiteration that all the Judges and Magistrates must see that what all is laid down in Section 304 of CrPC and right of cross-examination to accused is most crucial part of criminal trial which must be conducted with full seriousness as is done in every such case! No denying it!
Sanjeev Sirohi