Bombay High Court
Annasaheb Baburao Mahale And Ors. vs The State Of Maharashtra And Anr. on 24 March, 2026
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2026:BHC-AS:13836-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CONFIRMATION CASE NO. 5 OF 2019
The State of Maharashtra ..Appellant
Versus
Vilas Annasaheb Mahale ..Respondent
.......
WITH
CRIMINAL APPEAL NO. 1645 OF 2019
Vilas Annasaheb Mahale ..Appellant
Versus
The State of Maharashtra & Anr. ..Respondents
.......
WITH
CRIMINAL APPEAL NO. 373 OF 2022
Annasaheb Baburao Mahale & Ors. ..Appellants
Versus
The State of Maharashtra & Anr. ..Respondents
.......
WITH
INTERIM APPLICATION NO. 3948 OF 2022
IN
CRIMINAL APPEAL NO. 373 OF 2022
Annasaheb Baburao Mahale & Anr. ..Applicants
Versus
The State of Maharashtra & Anr. ..Respondents
.......
WITH
INTERIM APPLICATION NO. 4043 OF 2022
IN
CRIMINAL APPEAL NO. 373 OF 2022
Shailabai Annasaheb Mahale ..Applicant
Versus
The State of Maharashtra ..Respondent
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Deshmane(PS)
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__________
Smt. S. D. Shinde, APP for State/Appellant in Conf. Case No.5 of
2019.
Dr. Yug Mohit Chaudhary a/w. Ms. Payoshi Roy and Siddharth
Sharma for Respondent No.1 in Conf. Case No.5 of 2019 and for
Appellant in Appeal No.1645 of 2019.
Ms. Ameeta Kuttikrishnan, Appointed Advocate for the Respondent
No.2 in Conf. Case No.5 of 2019.
Mr. K. H. Holambe Patil a/w. Mr. K. K. Holambe Patil, Mr.
Bhalchandra Kumbhar and Vishal Shirsat for Appellants in Appeal
No.373 of 2022.
Accused Vilas Mahale produced before the Court.
__________
CORAM : SARANG V. KOTWAL &
SANDESH D. PATIL, JJ.
RESERVED ON : 25th FEBRUARY, 2026
PRONOUNCED ON : 24th MARCH, 2026
JUDGMENT :
[PER SARANG V. KOTWAL, J.]
1. The learned Additional Sessions Judge, Nashik, vide
her Judgment and order dated 15.05.2019 passed in Sessions Case
No.209 of 2017 on her file, has forwarded the death penalty
reference resulting in Confirmation Case No.5 of 2019 to this Court
for confirmation of the sentence of death penalty imposed on the
original Accused No.1 Vilas Annasaheb Mahale for commission of
the offence punishable U/s.302 of the I.P.C.
The said Accused No.1 Vilas has preferred Criminal
Appeal No.1645 of 2019 challenging the same Judgment and order.
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The original Accused No.2 Annasaheb Baburao Mahale,
the original Accused No.3 Pravin Annasaheb Mahale and the
original Accused No.4 Shailabai Annasaheb Mahale have preferred
Criminal Appeal No.373 of 2022 challenging their conviction and
sentence recorded in the same Judgment and order.
During the pendency of these proceedings the original
Accused No.2 Annasaheb Baburao Mahale has passed away and,
therefore, the Criminal Appeal No.373 of 2022 stands abated, as
far as, he is concerned. It is now proceeding only against the
original Accused Nos.3 and 4.
For convenience, the accused are referred to by their
original status in the trial as accused.
2. Heard Dr. Yug Mohit Chaudhary, learned counsel for
the Respondent No.1 in Confirmation Case No.5 of 2019 and for
Appellant in Criminal Appeal No.1645 of 2019, Ms. Ameeta
Kuttikrishnan, learned appointed Advocate for the Respondent
No.2 in Conf. Case No.5 of 2019, Mr. K. H. Holambe Patil, learned
counsel for the Appellants in Criminal Appeal No.373 of 2022 and
Smt. S. D. Shinde, learned APP for the State/Appellant in
Confirmation Case No.5 of 2019 and other connected Appeals.
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3. We have heard all the learned counsel at some length.
Learned APP took us through the entire evidence. In response, Dr.
Yug Mohit Chaudhary, learned counsel appearing for the original
Accused No.1 made some submissions on merits of the matter. His
main thrust of the argument was that the Accused No.1 was denied
the opportunity of a fair trial. He submitted that, since there was
failure of justice, either the Accused No.1 be acquitted or the
matter be remanded back for de novo trial.
4. Mr. Holambe Patil, learned counsel appearing for the
Accused Nos.3 and 4 made his submissions for acquittal of the
accused Nos.3 and 4, but he also supported the submissions of the
learned counsel for the Accused No.1 that the matter can be
remanded back.
5. After these submissions were advanced before us, in
response, learned APP specifically submitted before the Court that,
since proper opportunity was not given to the Accused No.1 to
defend himself, the matter be remanded back before the Trial Court
for de novo trial.
6. Learned counsel Ms. Ameeta Kuttikrishnan appearing
for the Respondent No.2 addressed us on the merits of the matter,
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but she also conceded that the matter is required to be remanded
back for de novo trial.
7. Thus, not only the counsel appearing for the defence,
but also the counsel for the Respondent No.2, as well as, the
learned APP unanimously submitted before us that the matter be
remanded back before the trial Court for de novo trial.
8. Before referring to the submissions made in support of
remanding the matter back before the trial Court; it is necessary to
refer to the evidence led by the prosecution in this case and also
the manner in which the trial was conducted.
9. Before referring to the facts, it must be noted that this
is a very serious and grave offence.
. The brief facts involved in this case are as follows:
The victim in this case was a seven year old child. Her
date of birth was 04.11.2009. It is the prosecution case that, all the
accused were relatives of the victim. The Accused No.1 was
residing separately from the other accused. On 24.04.2017, there
was a religious ceremony in the village Male Dumala. The victim
wanted to buy ice-cream. Her mother gave her Rs.5/- to buy ice-
cream. The victim started going towards the shop. The accused met
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money. The victim went to the shop. She bought a chocolate for
herself and tobacco for the Accused Nos.1 and 2. She went to the
house of the Accused No.1 Vilas. It is the prosecution case that,
between 1:30p.m. to about 4:00p.m. the Accused No.1 committed
rape on the victim in his house. He kept her body in the corner of
his room. It was covered with garbage and a big basket. He locked
the house from outside and started going away. In the meantime,
the mother and the grand-mother of the victim were searching for
her. The Accused No.1 made enquiries with the mother of the
victim as to what they were looking for. He told the mother of the
victim that he had sent her to buy tobacco. He went away. Since the
victim’s mother got to know that the Accused No.1 had met the
victim, she got suspicious. She was not satisfied with this
interaction. She and others went to the house of the Accused No.1.
It was locked. The other accused were present nearby. The victim’s
mother and others requested the other accused to open the door,
but the Accused No.4 stopped them from going to the Accused
No.1’s house. This further raised suspicion in the mind of the
victim’s mother and grand-mother. The victim’s mother made a
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telephonic call to the Accused No.1. He did not return to the
village. He did not respond to the call made by even the Accused
No.2. The villagers got suspicious. They broke open the lock and
entered the house of the Accused No.1. They saw the shocking
scene in his house. The police were informed. Her dead body was
sent for the postmortem examination. The victim’s mother lodged
her F.I.R. The offence was registered vide C.R.No.54 of 2017 at Vani
police station on 24.04.2017 at about 8:00pm. The investigation
started.
10. The police started searching for the Accused No.1. The
Accused No.1 was arrested from some other village on 25.04.2017
at about 12:00p.m. During the investigation, the Forensic Experts
visited the spot and collected the evidence at the spot. The
postmortem examination revealed that the victim was subjected to
sexual assault and she was murdered by strangulation using a wire.
After his arrest, a key was recovered at the instance of the Accused
No.1 U/s.27 of the Indian Evidence Act. According to the
prosecution case, it was the key of the lock found on the door of
the Accused No.1’s house. Various panchanamas were conducted
and statements of various witnesses were recorded. The statements
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of the witnesses were also recorded U/s.164 of the Cr.P.C. After
getting sufficient evidence the charge-sheet was filed. The case was
committed before the Special Court as the offence involved
provisions of the Protection of Children from Sexual Offences Act
(for short ‘POCSO Act‘).
11. During trial, the prosecution examined 22 witnesses
including the mother and the grand-mother of the victim, the
shopkeeper from whom the victim had bought chocolate and
tobacco, the panchas for various panchanamas, the witness to
whom, allegedly, the Accused No.1 had made extra judicial
confession on a phone call, the owner of the Accused No.1’s house,
the photographer, the Medical Officer who had conducted
postmortem examination, the Forensic Science expert who had
visited the spot, the Nodal Officer to prove the Call Data Record
and the police officers conducting the investigation.
12. The defence of the Accused was of total denial. It is
their defence that, just to involve them in a false case, the witnesses
had deposed against them. The learned Trial Judge did not believe
the defence taken by the Accused. She relied on the evidence led by
the prosecution. The learned Trial Judge convicted and sentenced
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the accused as under:
The Accused No.1 Vilas Mahale was convicted and
sentenced as follows:
i. He was convicted for commission of the offence punishable
U/s.302 of the IPC and was sentenced to death with a
direction that he be hanged by neck till he was dead.ii. He was convicted for commission of the offence punishable
under sections 4 and 6 of the POCSO Act and was sentenced
to suffer life imprisonment and to pay a fine of Rs.2 lakhs and
in default to suffer S.I. for one year.
iii. He was convicted for commission of the offence punishable
U/s.377 of the IPC and was sentenced to suffer R.I. for 10
years and to pay a fine of Rs.10000/- and in default to suffer
S.I. for three months.
iv. He was convicted for commission of the offence punishable
U/s.8 of the POCSO Act and was sentenced to suffer R.I. for
five years and to pay a fine of Rs.500/- and in default to
suffer S.I. for one month.
The Accused Nos.2, 3 and 4 were convicted for
commission of the offence punishable U/s.201 of the I.P.C. and
were sentenced to suffer R.I. for seven years each and to pay a fine
of Rs.1000/- each and in default to suffer S.I. for two months.
The substantive sentences imposed on the Accused
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No.1 for commission of the offence punishable under Sections 4
and 6 of the POCSO Act and U/s.377 of the IPC were directed to
run concurrently. All the accused were granted set off U/s.428 of
the Cr.P.C. Out of the total fine amount, Rs.2 lakhs was directed to
be paid to the victim’s mother.
13. It must be noted that the charges against the accused
Nos.2, 3 and 4 were not framed specifically U/s.201 of the IPC.
14. Before appreciating the submissions made by the
learned counsel for de novo trial, it is necessary to refer, briefly, to
the evidence led by the prosecution, so that, the significance and
importance of that evidence can be considered in the background
of the submissions that fair opportunity was not given to the
Accused No.1 to defend himself properly.
15. PW-1 was the mother of the victim. She deposed that,
she was residing with her husband, the husband’s parents and her
two daughters including the victim who was 7 years of age. The
victim was studying in 2nd standard. On 24.04.2017 at about
1:30p.m. the victim wanted to have ice-cream. PW-1 gave her
Rs.5/- to buy ice-cream. For about twenty to twenty-five minutes,
she did not return. Hence, PW-1 went to the shop. The woman
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attending the shop told PW-1 that the victim had purchased two
tobacco pouches and 10 gutkha packets. PW-1 and her mother-in-
law started searching for the victim in the village, but she was not
found. On the way back to their house, they met the Accused No.4.
She told them that they had sent the victim to buy tobacco pouch.
The Accused No.1 met her on the way. He made enquiries as to
whom they were searching for. PW-1 told him that they were
searching for her daughter. The Accused No.1 told PW-1 that he
had sent the victim to buy tobacco and two chocolates. He then
proceeded ahead. PW-1 returned to her house and discussed
everything with her mother-in-law. They both then started
searching for the victim again, but she was not found. PW-1
suspected the Accused No.1, as, he had met the victim before she
went missing. PW-1 informed her husband telephonically. He came
home. Then all of them went to the house of the Accused No.1. It
was locked. Other villagers had gathered there. They started
searching for the Accused No.1, but he was not found. After some
time, PW-1’s husband received a phone call from the Accused
No.1’s mobile phone. PW-1 received that call. The Accused No.1
asked her as to why the villagers were searching for him and as to
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what had happened. PW-1 handed over the phone to her husband,
who asked the Accused No.1 to come to the village. But he did not
return. One of the villagers broke open the lock and entered the
house. While they were going to the first floor, they saw the
shocking scene of the victim’s dead body in a sitting posture in the
corner of the room covered with a basket. There was a wire around
her neck. Her pant and underwear had been pulled down. There
was blood on the pillow. There were signs of forcible sexual
intercourse. There was one electric wire and an aluminium wire
around her neck. She was dead. Some dust was thrown on the
dead body. The Police Patil informed Vani police station. The dead
body was taken to Government Hospital, Vani. PW-1 then lodged
her F.I.R. It is produced on record at Exhibit-30. She produced the
Birth Certificate of the victim before the police. The date of birth of
the victim was 04.11.2009. It is produced on record at Exhibit-33.
She described the scene of the offence. There was one scissor lying
nearby. It was blood stained. There was one napkin. There was
some sticky substance on the napkin. One packet of tobacco was
lying there. One cutter, empty liquor bottle and other articles were
also seen on the spot. The photographer took the photographs of
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the scene of the offence. She identified all these articles produced
in the Court, including the basket.
16. As can be seen, PW-1 is one of the most important
witnesses in the case. However, when she was examined the
accused No.1 was not provided a Legal Aid Counsel. There is a
specific noting dated 5.1.2018 that the Court had issued a letter at
Exhibit-7 on 11.8.2017 to the Legal Aid Office and till 5.1.2018 no
Legal Aid was provided for the accused No.1 and, therefore, the
examination-in-chief was deferred till the next date. It continued
on 6.1.2018, 8.1.2018, 17.1.2018, 29.1.2018, 13.3.2018 and
14.3.2018.
17. The services of Legal Aid counsel was provided to the
accused but on 27.3.2018, the learned Counsel who was appointed
to represent the accused No.1 as a Legal Aid Lawyer filed a pursis
for withdrawing from the case as the accused No.1 had informed
the Court that he wanted to appoint a private Lawyer but till then
no Vakilpatra was filed. In this view of the matter, the cross-
examination was conducted on behalf of the accused Nos.2 to 4.
On 11.5.2018, the accused No.1 expressed inability to engage a
private lawyer and requested for appointment of a Legal Aid
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Counsel. Thus from the record it is clear that the examination-in-
chief was conducted when there was no Lawyer representing the
accused No.1 and the situation continued when the cross-
examination on behalf of other accused was conducted. There is a
noting dated 27.3.2018 that after the first Legal Aid Counsel
Advocate Gharate had refused to appear on behalf of the accused
No.1 and since the accused No.1 had not engaged any private
advocate and had also refused to take legal aid, the accused No.1
was given an opportunity to cross-examine PW-1 but the accused
No.1 had declined to cross-examine PW-1 and, therefore, there
was no cross-examination on behalf of the accused No.1 at that
stage. The record shows that much later a legal aid counsel was
appointed for the accused No.1 and then PW-1 was recalled for
further cross-examination.
18. How the trial proceeded in absence of the counsel for
the accused No.1 for major part of the trial when important
witnesses were examined, we are highlighting this particular fact at
this stage to show that the accused No.1 was not represented by an
advocate for this important witness i.e. PW-1. At this stage, it must
be noted that even at the stage of framing of the charge no
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advocate was provided for the accused No.1.
19. We are refraining from referring to the cross-
examination conducted on behalf of the accused Nos.2, 3 and 4 as
well as the subsequent cross-examination conducted on behalf of
the accused No.1 because we are not deciding these proceedings on
the merits by evaluating the evidence; but, as submitted by all
learned counsel appearing for all the parties, we have seriously
considered remanding the matter back.
20. PW-2 was the grand-mother of the victim. She has
corroborated the evidence of PW-1.
21. PW-3 was the shopkeeper from whom the victim had
bought tobacco pouch and Lyme pouch.
22. PW-4 was another shopkeeper. The victim had gone to
her shop first but PW-4 had told her that the shop was closed.
23. PW-5 Vinayak Kakad was a pancha for inquest
panchnama. He had also taken part in searching for the victim
when the victim’s family and other villagers were looking for her.
He has corroborated the evidence of PW-1 and PW-2 regarding
search and how they entered the house of the accused No.1.
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24. PW-6 Dipak Mahale had taken part in the search with
other villagers. Importantly he had broken open the lock of the
house of the accused No.1 and had entered the house. It is, of
course, disputed by the accused No.1 by taking a stand that it was
not his house.
25. PW-7 Vijay Bagul was another important witness. He
was examined on the point of extra judicial confession made by the
accused No.1 to him when the accused No.1 had made a telephone
call to him.
His examination-in-chief concluded on 9.7.2018. Even
there, a noting was that the accused No.1 was going to file another
application for legal aid and by reserving his cross-examination,
the learned Judge proceeded ahead with the trial by permitting the
learned counsel for the accused Nos.2 to 4 to conduct the cross-
examination. Much later on 19.1.2019 after a private advocate was
engaged by the accused No.1, the cross-examination of this witness
was conducted. It was a cursory cross-examination.
This witness’s cross-examination was conducted by a
Legal Aid Counsel Mr. S.R. Gadade.
26. PW-8 Pramod Koli was a pancha in whose presence a
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key was recovered at the instance of the accused No.1, which
according to the prosecution case he had concealed inside a pipe
near his house in his agricultural land.
27. PW-9 Shamrao Mahale was a close relative of the
accused No.1. According to the prosecution case it was his house
where the incident had taken place and according to this witness
the accused No.1 was occupying that house without his permission.
28. PW-10 Vaishali Pawar was a pancha for spot
panchnama which is produced on record at Exhibit-85. It describes
the scene of offence and the articles seized from the spot.
29. PW-11 Ganesh Shelar was a photographer who had
taken photographs of the scene of offence.
30. On 13.7.2018, the learned trial Judge received a letter
from DLSA appointing Advocate Smt. Pramila Jadhav to represent
the accused No.1. She conducted the cross-examination of two
witnesses. She made an application for recalling some of the
witnesses. Importantly she had cross-examined PW-6 who had
broken open the lock. He was an important witness but she had
only given suggestions that the witness was not telling the truth.
There was hardly any cross-examination on the important facts
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deposed by PW-6.
31. PW-12 Vijay Barde was a pancha for seizure of clothes
of the deceased.
32. PW-13 Arun Lilke was a pancha for seizure of clothes
of the accused.
33. PW-14 Dr.Rajendra Bagul had conducted the
postmortem examination. The postmortem notes are produced on
record at Exhibit-135. It was conducted on 24.4.2017 between 9.05
p.m. to 10.05 p.m..
34. PW-15 Prajakta Khairnar was a Forensic Expert who
had visited the spot.
35. PW-16 Ambadas Chaudhari was a pancha for arrest of
all the accused. The panchnama was conducted on 25.4.2017.
36. PW-17 Khanderao Shirsath was a pancha for seizure of
the ash of the victim.
37. PW-18 Ganesh Gangurde was a pancha for seizure of
clothes of the accused Nos.2 to 4.
38. PW-19 Pradip Gangurde was a pancha for seizure of
clothes of the accused No.1.
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39. PW-20 PI Anand Targe was the first investigating
officer.
40. PW-21 Dattaram Angre was a Nodal Officer, who had
produced the record showing the telephonic conversation between
the accused No.1 and the victim’s family’s phone referred to by
PWs-1 & 2 in their evidence.
41. PW-22 Dy.S.P. Devidas Patil was the main investigating
officer. He had filed the charge-sheet.
42. Besides this oral evidence, the prosecution produced
the CA reports on record. According to the prosecution case, the
semen found on the napkin which was lying inside the house of the
accused No.1 was that of the accused No.1.
43. The victim’s birth-certificate was also produced on
record.
44. This, in short, was the evidence led by the prosecution.
45. Learned APP read the entire evidence before us. At the
first instance her submissions were that the prosecution had proved
its case beyond reasonable doubt and, therefore, the death
sentence imposed on the accused No.1 be confirmed. In brief, her
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submissions were that PW-1 and PW-2 were truthful witnesses; that
the accused No. 1 was a near relative of the victim and had sent
her to buy tobacco. The accused Nos. 2 to 4 had misled the
villagers. That the house was locked and, despite repeated calls,
accused No. 1 did not return to open it. The dead body was found
in the house where the accused No.1 resided. The evidence of
PW-9 established his residence there. The articles and cards found
in the house showed that it was used by accused No. 1. The blood
on the articles and semen stains on the napkin and mattress inside
the house were of the accused No. 1. The accused offered no
explanation as to how the body was found in the house. She
further submitted that an extra-judicial confession was made to
PW-7 and was supported by CDR. The victim was a small child; and
the offence was committed by a close relative. The postmortem
reports showed that the victim was subjected to rape and brutal
murder; and that the offence was a rarest of rare case.
46. We have deliberately not discussed this evidence in
detail because we propose to remand back the matter for fresh
consideration. The objective is that the trial Court, on this occasion,
shall not be influenced by any direct or indirect observation made
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by us in this order.
47. Shri Holambe Patil appearing for the accused Nos.3 & 4
argued that the charge under Section 201 of IPC was not even
framed and yet, those accused were convicted under Section 201 of
IPC. This was not permissible. Even otherwise, there is no direct or
indirect evidence against the accused Nos.3 & 4.
48. Dr. Yug Mohit Chaudhary elaborately took us through
the Roznama and the record to demonstrate as to how the trial
proceeded.
49. Dr. Chaudhary vehemently argued that there was
miscarriage of justice because it was not a fair trial. The accused
No.1 was not represented for the major part of the trial. The
examinations-in-chief of many important witnesses were conducted
in the absence of any advocate for the accused No.1. Till late in the
trial, no Advocate was representing the accused No.1. Even the
charges were framed without any Advocate having been appointed
for the accused No.1. At least on three occasions, the Legal Aid
Counsel were changed. They were not given sufficient opportunity
to collect and study the papers. Ultimately, the accused No.1 was
forced to engage a private Advocate who he could afford in the
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background of his poor financial status. After much later, the
witnesses were recalled for cross-examination but one of the most
important witnesses PW-9 did not attend the Court for cross-
examination and thus the accused No.1 was denied the opportunity
to cross-examine that witness. That cross-examination would have
established that the accused No.1 was not connected with that
house at all.
50. Dr. Chaudhary submitted that no advocate was present
for examinations-in-chief for ten witnesses. He could have objected
to leading questions. The examination-in-chief was going on even
while the application made by the accused No.1 for providing Legal
Aid Lawyer was still pending. On one occasion, the appointed
Advocate adopted the cross-examination conducted on behalf of
other accused though he did not have the papers. Finally a private
advocate was appointed by the accused No.1 as he was left with no
other choice. That time, eight witnesses were recalled and were
examined over only two days and the cross-examination was
merely in the nature of suggestions. Two witnesses were further
examined in the presence of a private advocate who were later
recalled. The crucial witness i.e. PW-9 was not cross-examined.
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51. Dr. Chaudhary submitted that no time was given to the
advocate to prepare for the matter and the evidence was recorded
even on the date of his appointment. Many prosecution witnesses
were examined in the absence of accused No.1’s advocate. On two
separate occasions, one of the appointed Advocates i.e. Advocate
Gite had sought time to prepare in the matter after he received the
documents, but the papers were not made available to him. Hence,
he withdrew from the case. PWs-6,7 & 8 were examined when no
advocate was appointed for the accused No.1. After that, the third
Advocate Smt. Pramila Jadhav was appointed to represent the
accused No.1 but even then PWs-9, 10 and 11 were examined in
absence of the accused No.1’s Lawyer.
52. Dr. Chaudhary referred to the provisions in Criminal
Manual mentioned in Chapter-V regarding how Legal Aid has to be
provided. He also referred to the Rules mentioned in Appendix-B
of the Criminal Manual. In support of his contentions, Dr.
Chaudhary relied on various judgments. However, the important
judgments referred by him are as follows :
[i] Anokhilal Vs. State of Madhya Pradesh1
[ii] Ashok Vs. State of Uttar Pradesh2
1 (2019) 20 SCC 196
2 (2025) 2 SCC 381
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[iii] Sovaran Singh Prajapati Vs. State of Uttar Pradesh3
[iv] Ramanand alias Nandlal Bharti Vs. State of Uttar Pradesh4
[v] Bashira Vs. State of U.P.5
53. Dr. Chaudhary submitted that since there was gross
violation of the fair trial under Article 21 of the Constitution of
India, there were two possible reliefs which the Court can consider
granting to the accused; (i) acquitting the accused or (ii)
remanding back the matter to the learned trial Judge for de novo
trial.
54. Apart from the submissions on these issues, Dr.
Chaudhary addressed the merits of the matter. He expressed that
he was handicapped in making submissions on merits because
there was hardly any competent cross-examination and the two
important witnesses were not even cross-examined. Therefore, he
could only point out the inherent weaknesses in the prosecution
case which can be seen from the examination-in-chief of the
prosecution witnesses. He submitted that there was complete
absence of forensic evidence that could link the accused No.1 to the
offence. His semen stains or DNA was not found on the victim or
her clothes. The victim’s blood or DNA was not found on the
3 2025 SCC OnLine SC 351
4 (2023) 16 SCC 510
5 1968 SCC OnLine SC 84
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accused No.1’s body or clothes. The circumstantial evidence is not
complete in the absence of the forensic link completing the chain of
circumstances.
55. The most important witness PW-9 was not available for
cross-examination. Therefore, the prosecution could not establish
that the accused No.1 was occupying the house of PW-9 where the
incident had taken place. Another circumstance of extrajudicial
confession is not proved. PW-7 was not a reliable witness. There
was no reason for the accused No.1 to have confessed to him.
There is nothing to show that PW-7 was in a position of trust as far
as the accused No.1 is concerned.
56. Learned counsel appointed for the Respondent No.2
submitted that in all fairness the matter has to be remanded back
for de novo trial and on merits of the matter she supported the
submissions of learned APP Smt. Shinde.
57. After all these submissions were made, in response, the
learned APP Smt. Shinde submitted that this was a fit case where
the matter had to be remanded back before the trial Court. We
reminded her that she had argued the case on merits and had also
argued for confirmation of the death sentence. However, after
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giving thoughtful consideration to the submissions advanced before
us by all the other learned counsel, she also submitted that the
matter be remanded back for de novo trial.
58. We have considered these submissions. For the reasons
mentioned hereinbelow, we propose to remand back the matter
before the trial Court.
59. Before referring to the situation as to how the trial
progressed, we may refer to the provisions in the Criminal Manual
for providing Legal Aid. The relevant provisions under Chapter (V)
of the Criminal Manual are as follows :
“Chapter (v)
Legal Aid
Engagement of Advocate or Pleader appointed for the
defence of persons accused of offences punishable with death
1. Legal Aid for the defence of persons accused of offences
punishable with death : (1)(a) Notwithstanding anything contained
in the rules made by the High Court under sub-section (2) of Section
304 of the Code of Criminal Procedure, in all cases tried before a
Sessions Judge in which any person is liable to be sentenced to death,
the accused shall be informed by the committing Magistrate at the
time of committal that unless he intends to make his own
arrangements for legal assistance, the higher Court i.e. Sessions
Court will engage a legal practitioner at Government expense to
appear before it on his behalf;
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(b) in confirmation cases and in appeals against acquittals
or for enhancement of sentence filed on the Appellate Side of the
High Court in which the accused is liable to be sentenced to death,
the accused shall be informed similarly by the trial Court;
(c) if it is ascertained that he does not intend to engage
one, a legal practitioner shall be engaged by the higher Court
concerned to undertake the defence and his remuneration shall be
paid by Government in the Law and Judiciary Department.
(2) xxxxxxx
(3) xxxxxxx
(4) The appointment of a defence counsel shall not be deferred
until the accused has been called upon to plead. The defence counsel
shall always be appointed sufficiently in advance to enable him to
take copies of the depositions and other necessary papers which shall
be furnished free of cost before the commencement of the trial or
other proceeding. If after the appointment of such legal practitioner
the accused appoints another counsel, the defence counsel appointed
by the Court may still in the discretion of the Remembrancer of Legal
Affairs, the Registrar or Additional Registrar or Deputy Registrar of
the High Court or the Sessions Judge as the case may be, be allowed
his fee for the case, but the copies already prepared shall be made
available only upon payment for he use of the counsel privately
appointed by the accused.”
60. Rule 6(a) of the Appendix “B” is also relevant, which
reads thus :
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Rules regarding legal aid to unrepresented accused person
in cases before the Court of Sessions
No.P.1630/57.- In exercise of the powers conferred by sub-
section (2) of Section 304 of the Code of Criminal Procedure,
1973 (II of 1974) and with the previous approval of the
Government of Maharashtra the Honourable the Chief Justice
and Judges of the High Court of Judicature at Bombay are
pleased to make the following rules :-
1. xxxxxxxx
2. xxxxxxxx
3. xxxxxxxx
4. xxxxxxxx
5. xxxxxxxx
6. Panel of Legal Practioners for Legal Aid :- (a) The
appointment of a Legal Practitioner for the unrepresented
accused person under these Rules shall be made from a panel
of Legal Practitioners constituted for each Court by the
Presiding Officer of the Court in consultation with the
President and the Office bearers of the Bar-Association, if any.
Where there is no Bar Association, the Presiding Officer. shall
draw up the panel in consultation with the Senior Advocates
of the concerned Bar. The panel may include the President of
the Bar Association, Senior Advocates of the Bar and the
junior members of the Bar having a standing of at least five
years as practising lawyer. In every case where an offence is
punishable with sentence of death or imprisonment for 7 years
or more a Senior Advocate with a Junior Advocate from the
panel shall be appointed for defending the unrepresented
accused. As far as possible, the Presiding Officer shall not
make an appointment from outside the panel but he may do so
for any exceptional reason to be recorded in writing.
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61. In the background of the facts which are presented
before us, it is necessary to remind all the Courts under the
jurisdiction of this High Court to follow these Rules. A copy of this
judgment shall be circulated to all the District Legal Services
Authority and all the Sessions Judges under the jurisdiction of this
High Court.
62. This is a case which highlights that not providing legal
assistance to the accused who is entitled for Legal Aid Counsel
results in miscarriage of justice. From the facts of the case it can be
seen that it is a very grave and serious offence and yet because of
failure to conduct the trial in a fair manner no decision can be
arrived at even after about nine years from the date of offence.
This is a case where till today justice was not given to the victim
and her family. On the other hand, the accused No.1 is facing death
penalty without proper legal assistance before the trial Court. We
reiterate that we are refraining from making any observations on
the merits of the matter so that the learned trial Judge on this
occasion is not influenced while deciding the case.
63. At this stage it is necessary to refer to the manner in
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which the trial proceeded.
64. In this case, the charges were framed on 9.8.2017. The
Roznama mentions that the learned Judge asked the accused No.1
whether he wanted Legal Aid. At that time, the accused No.1 had
answered in negative. The matter was adjourned to 23.8.2017, but
on 11.8.2017 he made an application before the learned trial Judge
for appointment of a Legal Aid Counsel. Accordingly the trial Court
had issued letter Exhibit-7 on 11.8.2017. But for a long time, there
is no reference as to whether any Legal Aid Counsel was appointed
for the accused No.1. In the meantime, the accused Nos.2 to 4
engaged their own private Advocate and the Vakilpatra was filed on
their behalf on 3.10.2017.
65. On 5.1.2018, the prosecution started examining PW-1
i.e. mother of the victim. However, the noting of the learned Judge
below the examination-in-chief conducted on 5.1.2018 mentions
clearly that the Court had issued letter Exhibit-7 on 11.8.2017 to
the Legal Aid Office and till 5.1.2018 no Legal Aid Counsel was
provided for the accused No.1. Therefore, for making enquiry,
further examination-in-chief was deferred till the next date and the
matter was adjourned to the very next date i.e. on 6.1.2018. On
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6.1.2018 the examination-in-chief continued. There was no sign of
any Advocate having been appointed for the accused No.1 even on
that day.
66. On 8.1.2018, the accused No.1 made an application
praying for time to engage a Lawyer and, therefore, further
examination-in-chief was deferred till 12.1.2018. It appears that
even till then the Legal Aid Counsel was not provided to the
accused No.1. The examination-in-chief continued on 17.1.2018
without there being any Lawyer representing the accused No.1.
Same situation continued on 29.1.2018, 13.3.2018 and 14.3.2018.
The Court noted that the matter was adjourned for cross-
examination on behalf of the accused No.1. It was to be
conducted by advocate Gharate. The matter was next conducted
on 27.3.2018. The learned Judge’s noting on 27.3.2018 mentions
that the Advocate Gharate at Exhibit-35 made an application saying
that he was refusing to appear on behalf of the accused No.1. It
was also noted that the accused No.1 had submitted that he
wanted to engage a private Lawyer but till 27.3.2018 he had not
engaged any Lawyer and had also refused legal aid. The learned
Judge observed that an opportunity was given to the accused No.1
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to cross-examine the witnesses but the accused No.1 declined to
conduct the cross-examination and, therefore, the noting further
says “No Cross”. However, the cross-examination was conducted on
behalf of the accused Nos.2, 3 & 4. The cross-examination of PW-1
continued on 12.4.2018, 20.4.2018 and was completed on
21.4.2018. This cross-examination was conducted on behalf of the
accused Nos.2 to 4. The cross-examination on behalf of the accused
No.1 was closed. He had not personally cross-examined PW-1. It is
pertinent to note that even till the evidence of PW-1 was over, no
Legal Aid Counsel was provided to the accused No.1.
67. On 11.5.2018, the accused No.1 made an application
vide Exhibit-46 praying for services of Legal Aid Counsel. The case
was adjourned to 17.5.2018. On that day, the appointment letter of
Advocate Gite was produced before the Court. On that day,
examination-in-chief of PW-2 started. It was over on 23.5.2018.
The learned trial Judge’s noting on that day mentions that the
appointed counsel Shri Gite was repeatedly called but he was
absent. The accused No.1 was brought from jail. An opportunity
was given to the accused No.1 to cross-examine and he had
declined. Hence, his cross-examination was closed. Thus, on that
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day also nobody represented the accused No.1 though the Legal
Aid Counsel was appointed for him.
68. The trial proceeded further. The same situation
continued till June, 2018. On 8.6.2018 PW-3 was examined.
Advocate Gite, learned appointed counsel was absent and no cross
examination was conducted on behalf of the accused No.1. The
trial Court’s noting dated 8.6.2018 mentions that the accused No.1
was brought from jail. Advocate Gite was repeatedly called. Even
the concerned Clerk had called the Legal Aid office and had
informed about the absence of the Legal Aid Counsel. No reply was
given by the Legal Aid Office. The learned Judge observed that
since it was a matter under POCSO Act it be proceeded further. An
opportunity was given to the accused No.1 to cross-examine PW-3
but he declined. On 12.6.2018, after the cross-examination by the
accused Nos.2 to 4 was over, Advocate Gite appeared before the
Court and orally submitted that he was adopting the cross-
examination taken by the Advocates for the accused Nos.2 to 4 as
it was, for the accused No.1. On 8.6.2018 itself the examination-in-
chief of PW-4 was recorded. At that time the appointed counsel
Shri Gite had not conducted the cross-examination. It was
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conducted on behalf of the accused Nos.2 to 4 and on 12.6.2018
Advocate Gite adopted the cross-examination conducted on behalf
of the accused Nos.2 to 4 as it was for the accused No.1 as well.
69. The record shows that the Advocate appointed through
the Legal Aid Services did not have the papers to study. And,
therefore, he moved an application at Exhibit-65. On 12.6.2018,
PW-5 was cross-examined on behalf of the accused Nos.2 to 4 but
Advocate Shri Gite filed purshis at Exhibit-68 that he was
withdrawing his appearance since despite repeated attempts he
had not received the charge-sheet and the other relevant papers
and he was unable to prepare for the matter without necessary
papers. The learned Judge passed an order intimating the Legal
Aid Services Authority regarding that situation. Resultantly, the
trial proceeded further without the accused No.1 being
represented by a Legal Aid Counsel. On 26.6.2018, the evidence of
PW-6 was recorded and the cross-examination on behalf of the
accused No.1 was reserved. On 9.7.2018, PW-7 was examined.
Even at that time nobody was representing the accused No.1. The
trial proceeded and PW-8 was examined in the absence of any
Lawyer representing the accused No.1.
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70. On 11.7.2018, the District Legal Services Authority
appointed Advocate Pramila Jadhav to represent the accused No.1
vide Exhibit-87. The matter proceeded on 13.7.2018. The learned
trial Judge received the appointment letter of Advocate Pramila
Jadhav to represent the accused No.1. Since Advocate Pramila
Jadhav was appointed on 11.7.2018 it was expected that she was
given sufficient time to prepare herself but on 13.7.2018, PW-9
who was an important witness was examined and the learned
Judge noted that Advocate Smt. Pramila Jadhav appointed by the
DLSA was called repeatedly till 4.15 p.m.. The accused No.1 was
asked to cross-examine. He had declined. Hardly any fair
opportunity was given to the learned appointed counsel. Though
she had also not attended the Court though repeatedly called, but
this could not be fault of the accused No.1.
71. On 25.7.2018, PW-10 was examined. Even on that day,
the appointed Advocate Pramila Jadhav did not attend the Court
and the cross-examination on behalf of the accused No.1 was
concluded.
72. On 21.8.2018 Advocate Pramila Jadhav remained
present before the Court and produced the appointment order at
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Exhibit-87 and filed her Vakilpatra at Exhibit-88. A very short cross-
examination of PW-6, who was recalled was conducted. On
3.10.2018, PW-11 was examined and the trial Court’s noting
shows that the Counsel for the accused No.1 was not present. The
accused No.1 was asked to cross-examine. He declined to cross-
examine PW-11.
73. In this situation, left with no other alternative the
accused No.1 decided to engage a private Advocate and filed an
application at Exhibit-97 on 12.11.2018 through a private
Advocate Shri S.R. Gadade. On 17.11.2018, Advocate Gadade filed
Vakilpatra on behalf of the accused No.1. On 26.11.2018, Advocate
Gadade made an application on behalf of the accused No.1 for
recalling witnesses for cross-examination whose cross-examination
was closed when nobody was representing the accused No.1. On
18.12.2018, PW-1 was recalled and her cross-examination was
conducted by Advocate Gadade. We have perused that cross-
examination. It is a four paragraph cross-examination mostly
consisting of suggestions which she had denied. On 1.1.2019,
PWs-2, 3 & 5 were recalled for cross-examination on behalf of the
accused No.1 and their cross-examination was completed within
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one day. Again the cross-examination was very cryptic and was not
of more than one paragraph. It consisted only of suggestions.
74. On 9.1.2019, PWs-7, 8, 10 & 11 were recalled for cross-
examination on behalf of the accused No.1. Their cross-
examination was conducted on a single day. Again it consisted of
hardly one paragraph each and it consisted mainly of suggestions.
It can hardly be called proper cross-examination.
75. On 15.1.2019, PW-12 was examined and this time he
was cross-examined on behalf of the accused No.1 by Shri Gadade.
76. PW-12 was also an important witness as he was a
pancha for seizure of clothes of the deceased.
77. PW-13 was a pancha for seizure of clothes of the
accused. His cross-examination was declined. On 24.1.2019, PW-14
who was an autopsy surgeon was examined, but Advocate Shri
Gadade was absent. There was no cross-examination on that day,
but, he was recalled and the cross-examination was conducted by
Advocate Gadade on 11.2.2019.
78. PWs-15 to 20 were examined after that. PW-20 was the
Investigating Officer. His examination-in-chief continued in the
absence of accused No.1’s Lawyer. After that, the prosecution
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evidence was completed by examining PWs-21 & 22.
79. On 24.4.2019, learned Public Prosecutor started her
arguments. On 26.4.2019, the accused were not produced from
jail. Advocate Gadade, who now was representing not only accused
No.1 but all the accused by filing separate Vakilpatra for them, was
not present. He made an application for adjournment, but, it was
not granted and the learned Public Prosecutor continued her
arguments. This argument was continued in the absence of not
only the counsel for the accused but even in the absence of the
accused. On 2.5.2019, written arguments were given on behalf of
the accused Nos.1 to 4 and then the trial was taken to its
conclusion.
Reasons and conclusions :
80. At the outset, we may point out that we are specifically
refraining from making any observations on the merits of the
matter because for the reasons mentioned below we are inclined to
remand back the matter. Dr. Chaudhary relied on a few judgments
of the Hon’ble Supreme Court. In our opinion those judgments are
very relevant in the background of the facts of the present case.
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81. Dr. Chaudhary referred to the observations of the
Hon’ble Supreme Court in the case of Anokhilal. In this case the
trial Court had imposed death penalty on the accused, which the
High Court had confirmed. The Hon’ble Supreme Court was testing
those decisions. It was a case mainly under Sections 302, 366,
376(2)(f) and 377 of IPC along with other offences and under
Sections 4, 5 & 6 of the Protection of Children from Sexual
Offences Act, 2012. The accused was denied opportunity of fair
trial and there was no adequate representation through Legal Aid
Counsel. After considering various judgments, in paragraph-20
important principles were noted by the Hon’ble Supreme Court. It
was observed that Article 39-A inserted by the 42 nd Amendment to
the Constitution effected in the year 1977, provided for free legal
aid to ensure that opportunities for securing justice are not denied
to any citizen by reason of economic or other disabilities. The
statutory regime put in place included the enactment of the Legal
Services Authorities Act, 1987 which was designed to achieve the
mandate of Article 39-A. The right to Free Legal Services was an
essential ingredient of ‘reasonable, fair and just’ procedure for an
accused and it must be held implicit in the right guaranteed by
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Article 21. The object of criminal trial was to search for the truth
and the trial was not a bout over technicalities and must be
conducted in such manner as will protect the innocent and will
punish the guilty. When the time granted to the amicus curiae in to
prepare for the defence was completely insufficient resulting in
imposing death penalty amounted to breach of the procedure
established by law.
In the facts of the case before the Hon’ble Supreme
Court, the charges were framed on the same day when the amicus
curiae was appointed and, therefore, the Hon’ble Supreme Court
observed that the amicus curiae did not have sufficient time to go
through even the basic documents nor he could have discussion or
interaction with the accused and time to reflect over the matter.
Thus, right under sections 227 and 228 of Cr.P.C. were denied to
the accused. It was also observed that in such a case the trial
Court on its own ought to have adjourned the matter for some time
so that the amicus curiae could have the advantage of sufficient
time to prepare the matter. The approach adopted by the trial Court
might have expedited the conduct of trial but did not further the
cause of justice.
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In paragraph-28, the Hon’ble Supreme Court observed
that in the matters where death sentence is one of the alternative
punishments, the Courts must be completely vigilant and see that
full opportunity at every stage is afforded to the accused. Having
observed thus, the judgments of conviction and orders of sentences
passed by the trial Court and the High Court were set aside
directing de novo consideration. It was held that the learned
Counsel representing the accused in the trial Court could make
submissions touching upon the issues (i) whether the charges
framed by the trial Court are required to be amended or not; (ii)
whether any of the prosecution witnesses need to be recalled for
further cross-examination; and (iii) whether any expert evidence is
required to be led in response to the FSL and DNA reports; and it
was directed that the matter be considered on the basis of available
material on record in accordance with law. The Hon’ble Supreme
Court laid down certain norms to avoid repetition of these
infirmities. Those norms are reproduced from paragraphs-31.1 to
31.4 as follows :
“31.1. In all cases where there is a possibility of life sentence or
death sentence, learned Advocates who have put in
minimum of 10 years practice at the Bar alone be
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legal services to represent an accused.
31.2. In all matters dealt with by the High Court concerning
confirmation of death sentence, Senior Advocates of the
Court must first be considered to be appointed as amicus
curiae.
31.3. Whenever any learned Counsel is appointed as amicus
curiae, some reasonable time may be provided to enable the
counsel to prepare the matter. There cannot be any hard and
fast rule in that behalf. However, a minimum of seven days’
time may normally be considered to be appropriate and
adequate.
31.4. Any learned Counsel, who is appointed as amicus curiae on
behalf of the accused must normally be granted to have
meetings and discussion with the accused concerned. ……”
82. Dr. Chaudhary then relied on another judgment of the
Hon’ble Supreme Court in the case of Ashok. In that case the
accused was sentenced to death penalty by the trial Court. The
offence was under Sections 376, 302 and 201 of IPC. The High
Court had confirmed the conviction, but the death penalty was set
aside and the accused was sentenced to undergo life imprisonment
for the remainder of his natural life. The Hon’ble Supreme Court,
in this case, considered the entire evidence on record and after
discussion of the evidence, recorded the finding in paragraph-18
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that the accused’s guilt beyond reasonable doubt was not
established. Ultimately, the accused in that case was acquitted by
the Hon’ble Supreme Court. However, the Hon’ble Supreme Court
noticed the other infirmities and lapses. The relevant discussion is
under the heading “Failure to provide legal aid to the accused”. In
paragraph-36 it was observed that at the stage of framing the
charge, the accused was not represented by an advocate. The
examination-in-chief of PW-1 was allowed to be recorded without
giving legal aid counsel to the accused, who was not represented. It
was observed that if the examination-in-chief was recorded in the
absence of the advocate for the accused, a very valuable right of
objecting to the questions asked in examination-in-chief is taken
away. The accused was also deprived of the right to object to
leading questions. In the concluding part of the judgment, the
Hon’ble Supreme Court laid down the guidelines in paragraphs-
38.1 to 38.12 as follows:
“38.1. It is the duty of the Court to ensure that proper legal aid is
provided to an accused;
38.2. When an accused is not represented by an advocate, it is the
duty of every Public Prosecutor to point out to the Court the
requirement of providing him free legal aid. The reason is that it
is the duty of the Public Prosecutor to ensure that the trial is
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38.3. Even if the Court is inclined to frame charges or record
examination-in-chief of the prosecution witnesses in a case
where the Accused has not engaged any advocate, it is
incumbent upon the Public Prosecutor to request the Court not
to proceed without offering legal aid to the accused;
38.4. It is the duty of the Public Prosecutor to assist the Trial Court in
recording the statement of the Accused Under Section 313 of
the Code of Criminal Procedure. If the Court omits to put any
material circumstance brought on record against the accused,
the Public Prosecutor must bring it to the notice of the Court
while the examination of the accused is being recorded. He
must assist the Court in framing the questions to be put to the
Accused. As it is the duty of the Public Prosecutor to ensure that
those who are guilty of the commission of offence must be
punished, it is also his duty to ensure that there are no
infirmities in the conduct of the trial which will cause prejudice
to the accused;
38.5. An accused who is not represented by an advocate is entitled to
free legal aid at all material stages starting from remand. Every
accused has the right to get legal aid, even to file bail petitions;
38.6. At all material stages, including the stage of framing the charge,
recording the evidence, etc., it is the duty of the Court to make
the accused aware of his right to get free legal aid. If the
accused expresses that he needs legal aid, the trial Court must
ensure that a legal aid advocate is appointed to represent the
accused;
38.7. As held in the case of Anokhilal : (2019) 20 SCC 196, in all the
cases where there is a possibility of a life sentence or death
sentence, only those learned advocates who have put in a
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considered to be appointed as amicus curiae or as a legal aid
advocate. Even in the cases not covered by the categories
mentioned above, the accused is entitled to a legal aid advocate
who has good knowledge of the law and has an experience of
conducting trials on the criminal side. It would be ideal if the
Legal Services Authorities at all levels give proper training to
the newly appointed legal aid advocates not only by conducting
lectures but also by allowing the newly appointed legal aid
advocates to work with senior members of the Bar in a requisite
number of trials;
38.8. The State Legal Services Authorities shall issue directions to the
Legal Services Authorities at all levels to monitor the work of
the legal aid advocate and shall ensure that the legal aid
advocates attend the court regularly and punctually when the
cases entrusted to them are fixed;
38.9. It is necessary to ensure that the same legal aid advocate is
continued throughout the trial unless there are compelling
reasons to do so or unless the Accused appoints an advocate of
his choice;
38.10. In the cases where the offences are of a very serious nature and
complicated legal and factual issues are involved, the Court,
instead of appointing an empanelled legal aid advocate, may
appoint a senior member of the Bar who has a vast experience
of conducting trials to espouse the cause of the accused so that
the Accused gets best possible legal assistance;
38.11. The right of the Accused to defend himself in a criminal trial is
guaranteed by Article 21 of the Constitution of India. He is
entitled to a fair trial. But if effective legal aid is not made
available to an accused who is unable to engage an advocate, it
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guaranteed by Article 21;
38.12. If legal aid is provided only for the sake of providing it, it will
serve no purpose. Legal aid must be effective. Advocates
appointed to espouse the cause of the accused must have good
knowledge of criminal laws, law of evidence and procedural
laws apart from other important statutes. As there is a
constitutional right to legal aid, that right will be effective only
if the legal aid provided is of a good quality. If the legal aid
advocate provided to an accused is not competent enough to
conduct the trial efficiently, the rights of the accused will be
violated.”
83. Dr. Chaudhary then relied on the judgment of the
Hon’ble Supreme Court in the case of Sovaran Singh Prajapati. In
this case the Hon’ble Supreme Court considered the case in which
the death sentence was confirmed by the High Court. In this case
also during the examination-in-chief of the primary witnesses of the
prosecution i.e. PWs-1 & 2, the accused was not represented. It was
observed that if a trial was conducted in such a manner, the
argument of prejudice would be available to the accused. The
presence of the accused’s counsel at the time of recording of the
statement was necessary. It was also observed that sufficient time
should be given to the counsel to prepare the same and conduct the
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case on behalf of his client. It was also observed that frequent
change of counsel loses out the continuity of thought process. In
this case also the matter was remanded to the trial Court and
restored on the respective docket. The trial Court was directed to
proceed afresh from the stage of framing of charge. It was
observed that there is importance of compliance with the principles
of law and procedural rigours. Due to non-compliance, all parties
were required go through the process of trial once more and relive
the horrific offence committed against the deceased.
84. The judgment referred to by Dr. Chaudhary in the case
of Ramanand also took a similar view. It was observed by the
Hon’ble Supreme Court that it was the duty of the Court to see and
ensure that the accused put on a criminal trial was effectively
represented by a defence counsel, and in the event of indigence,
poverty or illiteracy or any other disabling factor, he was not able
to engage a counsel of his choice, it becomes the duty of the court
to provide him appropriate and meaningful legal aid at the State
expense. The presence of counsel on record means effective,
genuine and faithful presence and not a mere farcical, sham or a
virtual presence that is illusory, if not fraudulent.
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85. Coming back to the facts of the present case, we have
elaborately reproduced the manner in which the trial had
proceeded. The observations made by the Hon’ble Supreme Court
in the above judgments are squarely applicable to the facts of the
present case. The accused No.1 was not represented by any
Advocate at the time of framing of the charge. The examination of
eleven important prosecution witnesses was recorded in the
absence of any Advocate. In fact, no Advocate was appointed for
him during that period.
86. On 20.6.2018, the appointed Advocate had made an
application vide Exhibit-65 stating that the necessary papers were
not available and, therefore, adjournment was sought for
conducting the cross-examination. The prosecution objected to this
application by mentioning that since the accused had taken a copy
of the charge-sheet, this application should not be granted. The
learned Judge, however, granted adjournment till the next date. On
the same day, Legal Aid Counsel made another application vide
Exhibit-68 that copy of the charge-sheet and other important
documents were not made available. Inspite of his efforts, the Legal
Aid Counsel was not able to conduct the trial. He sought
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retirement from the trial. The learned trial Judge passed an order
that the Legal Aid Office be informed about this development.
Immediately the matter was taken up on 26.6.2018 and PW-6 was
examined by the prosecution. The learned Judge noted that the
Legal Aid Counsel Gite had withdrawn his Vakilpatra. Observing
thus, the cross-examination on behalf of the accused No.1 was
reserved. After that Advocate Pramila Jadhav was appointed by the
District Legal Services Authority on 13.7.2018. The appointment
letter was produced along with Exhibit-82. She filed her Vakilpatra
on 21.8.2018 and then she made an application for recalling of the
witnesses for cross-examination. Thus, it can be seen that
throughout the trial right from the time of framing of the charges
and examination of the important witnesses, the accused No.1 was
not represented by any Advocate. Even the documents were not
made available to the Legal Aid Counsel. Therefore, there is a clear
violation of the principles of fair trial. The accused No.1 was denied
an opportunity to defend himself. This is in violation of his rights
under Article 21 of the Constitution of India.
87. As held in the case of Ashok presence of learned
counsel for an accused at the time of recording of examination-in-
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chief is not an empty formality but it is a valuable right available to
the accused. Even that right was denied to him. At every single
stage, there was violation of the procedure of fair trial. Without
commenting on the quality and capacity of the Legal Aid Counsel
and the private Advocate appointed by the accused No.1, we are
constrained to observe that in such a serious case the cross-
examination did not meet the basic standard required in such
serious cases. The learned Judge showed unnecessary hurry to
conclude the trial. Undoubtedly it was a serious case and the trial
needed to be expedited; but that could not be done at the expense
of principles of fair trial. In all this process, at least for
appointment of Legal Aid Counsel we do not find any fault on the
part of the accused No.1.
88. As mentioned earlier, the offence is grave and
extremely serious. The victim’s family is still waiting for justice but
at the same time the accused also has his right of fair trial which
cannot be deprived. Since we are proposing to remand back the
matter, we are not making any observations on the merits of the
matter. This time we expect that the learned trial Judge takes all
the precautions to see that the trial is conducted in a manner which
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is fair to both the accused and the prosecution. The family of the
victim, and in particular the mother and the grandmother of the
victim who were examined during the trial, will have to undergo
trauma and relive the horrific experience, reminding themselves of
the incident. In this case, this is unavoidable. We expect the
learned trial Judge and the defence counsel to be alive to this fact
and be sensitive while conducting the trial and while conducting
the cross-examination.
89. With the result, we pass the following order :
:: O R D E R ::
i. The judgment and order dated 15.05.2019 passed by the learned
Additional Sessions Judge, Nashik in Sessions Case No.209 of 2017
convicting and sentencing all the Appellants – Accused is set aside.
Specifically, the death sentence imposed on the accused No.1 is not
confirmed.
ii. The Sessions Case No.209/2017 is remanded back and restored on
the file of the learned Additional Sessions Judge, Nashik. The
record and proceedings be sent to the said Court, forthwith.
iii. The learned trial Judge shall conduct the trial de novo from the
stage of framing of the charge. Before that stage, the learned trial
Judge shall ensure that all the accused are properly represented and
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may be provided to such accused before framing of the charges.
iv. The Legal Aid Counsel, if required, shall be appointed by the
District Legal Services Authority, in consonance with the guidelines
referred to hereinabove.
v. Since it is a de novo trial, the prosecution is free to examine any of
the witnesses who were earlier examined and the prosecution can
also examine any other witnesses who were not earlier examined, if
found necessary.
vi. The accused Nos.3 & 4 are on bail. They shall continue to remain
on bail till the conclusion of the trial on the same terms and
conditions on which they were granted bail by this Court by
executing fresh bonds.
vii. It is needless to add that the accused No.1 is still in custody and that
position has not changed by remanding the matter before the trial
Court.
viii. The trial is expedited and the learned trial Judge is requested to
conclude the trial as far as possible within ten months from today.
The matter shall be listed before the trial Court on 6.4.2026. The
accused No.1 shall be produced before the trial Court on that day.
The other two accused shall remain present before the trial Court on
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that day. They shall be given sufficient time and opportunity to
engage a private Lawyer or they be given Legal aid if they so
require urgently. The appointed counsel shall be given the papers
urgently and be given sufficient time to prepare in the matter.
ix. The trial Court shall decide the trial on its own merits in accordance
with law, based on the evidence before it and without being
influenced by the judgment and order recorded by the learned
Additional Sessions Judge, Nashik in Sessions Case No.209 of 2017
vide the judgment and order dated 15.5.2019.
x. The judgments of the Hon’ble Supreme Court in the cases of
Anokhilal Vs. State of Madhya Pradesh, (2019) 20 SCC 196 and Ashok
Vs. State of Uttar Pradesh, (2025) 2 SCC 381 be circulated to all the
trial Court Judges as well as the District Legal Services Authorities
under the jurisdiction of this Court.
xi. Confirmation Case and the Criminal Appeals are disposed of
accordingly. All pending Interim Applications are also disposed of.
(SANDESH D. PATIL, J.) (SARANG V. KOTWAL, J.)
Deshmane (PS)
Digitally signed
by
PRADIPKUMAR
PRADIPKUMAR PRAKASHRAO
PRAKASHRAO DESHMANE
DESHMANE Date:
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