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Synopsis

The Supreme Court on December 2, 2024, acquitted a man in case of rape and murder of a 10-year-old girl in 2009, holding that the lack of effective legal aid was tantamount to an infringement of the man's fundamental rights guaranteed by Article 21 of the Constitution.

A bench of Justices Abhay S. Oka, Ahsanuddin Amanullah, and Augustine George Masih said it is the duty of the court to ensure that proper legal aid is provided to an accused, and it is also the duty of every Public Prosecutor to point out to the court the requirement of providing the accused with free legal aid to ensure that the trial is conducted fairly and lawfully.

Court was dealing with an appeal filed by one Ashok against the Allahabad High Court's judgment, which had commuted his death penalty but directed that he would remain inside jail for the remainder of his life, subject to the exercise of powers regarding remission or clemency by the constitutional functionaries.

Examining the matter, the bench took into consideration the lack of legal representation at an effective stage during the trial, non-compliance with requirements under Section 313 of the CrPC, among other issues, as reasons for acquittal.

At the stage of framing the charge, the appellant was not represented by an advocate. From June 8, 2011, the appellant never declined legal aid, the court pointed out.

"We are surprised to note that the examination-in-chief of PW-1 (father of the victim) was allowed to be recorded without providing a legal aid counsel to the appellant, who was not represented by an advocate. If the examination-in-chief of a prosecution witness is recorded in the absence of the advocate for the accused, a very valuable right of objecting to the questions asked in the examination-in-chief is taken away. The accused is also deprived of the right to object to leading questions," the court said.

The bench opined that it would not be appropriate to comment on the capabilities of the two legal aid lawyers appointed in the case as they were not parties before it. However, it is sufficient to note that the cross-examination of the witnesses was not up to the mark. Some of the crucial questions that normally would have been put in the cross-examination were not asked, it added.

The prosecution had claimed the victim and her seven-year-old cousin went to a tubewell to drink water, where the accused, who worked as an operator, committed the offence after forcibly taking the girl to a cabin.

The victim's father, after being informed about the incident, rushed to the place to find the accused and the body of the girl, but he did not apprehend the appellant.

The conduct of not apprehending the appellant, though he was present, was unnatural, the court said.

It held that the evidence of the child witness, the only eyewitness, could not be held to be of sterling quality, so it was unsafe to base a conviction solely on his testimony. Even otherwise, taking his testimony as correct, his evidence can, at the highest, be the evidence of the accused being last seen together with the victim, the bench held.

In other respects, the bench found that the prosecution failed to prove that the recovery was from a particular place. "Thus, the evidence regarding recovery will have to be kept out of consideration. The recovery of the articles at the instance of the appellant is a very important circumstance in the chain of circumstances. However, this was not proved. Hence, the appellant's guilt beyond reasonable doubt could not be established", it opined.

Referring to the examination of the accused under Section 313 of the CrPC, the court said that the material circumstances appearing in evidence against the appellant had not been put to him.

"In a given case, the witnesses may have deposed in a language not known to the accused. In such a case, if the material circumstances appearing in evidence are not put to the accused and explained to the accused, in a language understood by him, it will cause prejudice to the accused," the bench said.

Examining the issue of whether this defect could be cured by remanding the matter to the trial court, the court said that considering the long passage of time, there was no option but to hold that the defect could not be cured at this stage. Even assuming that the evidence of PW-2 (cousin) can be believed, the appellant is entitled to acquittal on the ground of the failure to put incriminating material before him in his examination under Section 313 of the CrPC, the bench said.

With regard to the issue of providing legal aid to the accused, the bench said, "Having perused the record of the case, we found a very disturbing feature. It is the failure of the state to provide timely legal aid to the appellant. The other issue is about the quality of legal aid. Apart from the provisions of Article 21 and Article 39A of the Constitution of India, the law on the issue of the right to legal aid has been evolved by this Court through its landmark decisions".

In this regard, the bench cited Hussainara Khatoon (IV) v. Home Secretary, State of Bihar (1980), M.H. Hoskot v. State of Maharashtra (1978), and Anokhilal v. State of MP (2019), to emphasise that the right to get legal aid is a fundamental right of the accused, guaranteed by Article 21 of the Constitution.

Even under Section 303 of the CrPC, every accused has a right to be defended by a pleader of his choice. Sections 340 and 341 of the Bharatiya Nagarik Suraksha Sanhita, 2023 correspond to Sections 303 and 304 of the CrPC, the bench pointed out.

The court also said if legal aid is provided only for the sake of providing it, it will serve no purpose. The accused is entitled to a legal aid advocate who has good knowledge of the law and experience in conducting trials in criminal cases, it asserted.

The court allowed the appeal and set aside the High Court and the trial court's judgments. It also directed that a copy of the judgment be forwarded to all State Legal Services Authorities to enable them to take necessary measures.

Case Title: Ashok Vs State of Uttar Pradesh