P.K. Goswami, J.
1. This appeal from jail is directed against the judgment of conviction under Section 304 part I read with Section 34 and also under Section 326 read with Section 34, l.P.C. and sentence of rigorous imprisonment for ten years on the first count and three years under the second count to run concurrently passed by the learned Additional Sessions, Upper Assam Districts at Dibrugarh.
2. The prosecution case is that the deceased Bharat Pradhan was in possession of a plot of land with bamboos standing thereon. There was already a dispute with respect to that land for which there was a proceeding under Section 145, Criminal Procedure Code, and the preliminary order was drawn on 14-5-1962 and also the land was attached on the same day, as will appear from Exhibit 2. It is said that the accused armed with axes and daos started cutting the bamboos on the land, whereupon the deceased Bharat Pradhan along with others went and protested, at which the accused persons dealt dao and axe blows on Bharat, who succumbed to the injuries. Mahi Chandra Pradhan also was in that group and when he intervened, he was also assaulted and he sustained grievous injuries. After the incident they were both lying injured on the land.
3. The defence of the accused is that they claim possession of the land and on that day in order to save their crops from damage by cattle they were cutting bamboos on the land to make some fencing.
4. Initially there were six accused who were charged, but the learned Additional Sessions Judge acquitted Dhaneswar Goala and Pacha Mura on the view that these two persons were merely labourers and had not shared any common intention to assault the complainant party.
5. At the outset our attention has been drawn to the fact that the accused were undefended before the Court of Session. It also appeared that initially there was a counsel appointed by the learned Additional Sessions Judge to defend the accused persons, who appeared to be undefended at that stage. Later on, however, on the adjourned date when they signified their intention to engage their own counsel, the learned Additional Sessions Judge terminated the appointment of the State counsel and allowed their prayer. It so happened that on the adjourned date of hearing when the accused were brought to trial they appeared to be undefended and the order-sheet showed that the trial proceeded. When we have perused the entire record we find that there is some cross-examination of the prosecution witnesses although in a meagre and unsatisfactory way; perhaps the accused themselves did what their wits would allow them to do under the circumstances of the case.
6. Section 340 of the Criminal Procedure Code may be read:
(1) Any person accused of an offence before a Criminal Court, or against whom proceedings are instituted under this Code in any such Court, may of right be defended by a pleader.
Even under the Constitution, Article 22 makes provision for an opportunity to be given to the accused to be represented by a lawyer of his own choice. Article 22(1) is in the following words:
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
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Both Section 340, Cr. P. C. and Article 22 of the Constitution do not refer particularly to a case under Section 302, I..P.C. nor for providing for free legal aid under the law. All the same we find that the State Government in conformity with the object or intention underlying Section 340, Cr. P. C. and later engrafted in the Constitution, has made some provision for defence of pauper accused who have got to face a charge where the extreme penalty is provided under the law, namely death. Rule 19 in the Assam Law Department Manual, published under the authority of the State Government of Assam, provided for defence of pauper accused of murder,. It runs thus;
(1) When an accused is committed for trial on a charge of murder, the committing Magistrate shall at the time of passing order for his commitment enquire of the accused whether he will make arrangements for his own defence in the Court of Sessions or wishes to be defended at the expense of Government, and shall communicate the result of his enquiry to the Sess. Judge direct filing a copy of the letter with the commitment record. If the accused expresses a wish to be defended at Government expense, the committing Magistrate shall state in the letter whether in his opinion the accused can afford to engage a pleader in the Sessions Court, giving the grounds for his opinion. It shall be stated whether the accused was defended by a pleader or muktar in the Lower Court.
(2) On receipt of intimation that a prisoner committed to the Court of Sessions on a charge of murder desires to be defended at the expense of Government, it has been arranged that the Sessions Judge shall, unless he sees reason to believe that the prisoner is in a position to pay for his own defence, appoint a pleader lor the purpose. To this end the Sessions Judge shall maintain a list of Barristers or pleaders of the districts in which Sessions trials are ordinarily held who are willing to accept briefs for the defence of prisoners on their trial for murder; and ordinarily one of the persons on such list should be engaged.
It is not necessary to refer to some corrections made in this sub-rule by certain correction slip No. 25).
(3) If notwithstanding these precautions it appears at the commencement of the trial that an accused charged with murder is undefended, the public prosecutor shall bring the fact to the notice of the presiding Judge, and request him to appoint a pleader for the defence of the prisoner. The Judge may then appoint any Barrister or pleader on the list referred to above, or any member of the Bar present in Court, to defend the prisoner.
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7. It is clear, therefore, from Sub-rule (3) of Rule 19 that even if the accused at one stage intimated that he would have his own defence but on the date of hearing he is undefended, a duty is cast on the public prosecutor to bring it to the notice of the Court so that the Court can appoint somebody to defend the accused. If none is available as per the list, a gentleman of the Bar present in Court may be requested to defend the accused. The object underlying this provision is that no accused who is accused of a charge which may lead to the extreme penalty under the law should be deprived of a defence. This is a salutory procedure and is in the wake of clamour of all accused persons in a criminal trial who are indigent to receive free defence at the expense of the State. We are. therefore, surprised that the learned Additional Sessions Judge having once appointed a Counsel to defend these accused persons should have thought it fit to terminate the appointment and retrain from recommending his assistance when the accused were in fact undefended before him. All this has led to inadequate defence of the accused persons before the Court of Session.
According to the prosecution, the land was under attachment, which means that it was in the custody of the Court, and any one entering upon the land after the order of attachment was promulgated would be committing an act of trespass. If the accused had gone there, they were committing trespass; so also the complainant party when they entered the land, it is the prosecution case that the accused were first there and were cutting the bamboos. They claimed to use the bamboos as fencing to protect their crops. We have put the question to the public prosecutor, who is unable to show from the records that this plea of the accused that they were cutting the bamboos in order to preserve their crops has been denied by any prosecution witness. If, therefore, the accused were merely cutting the bamboos in order to put up a fence to save their crops, it may be debatable whether they were actually entering the land with intention to commit an offence. Be that as it may, the land being already under attachment the complainant party also had no business to enter on the land but only could report to the Court which attached the land for taking appropriate steps against the accused persons. The question which arose in the entire circumstances of the evidence in the case was, who the aggressor was. This point, however, was absolutely ignored by the learned Additional Sessions Judge. This has happened because the accused were not properly defended and it is a case where we may say that the entire trial is vitiated for the accused not having got a proper and fair trial. We are, therefore, unable to uphold the conviction of the accused persons under all the sections charged.
8. The next question would be, whether this is a fit case where we should think of remanding the case for retrial. The occurrence took place on 15th October, 1962. Apart from the fact that Bharat Pradhan died as a result of the injuries and Mahi Chandra Pradhan and three others received injuries, amongst the accused we find there are three persons Garbaria Pardhan, Petua Pradhan and Nasia Pradhan, who also had similarly received injuries. The accused have already served three years in jail. We are, therefore, unable to accede to the request of the learned public prosecutor for a remand of the case for retrial of the accused. The accused-appellants are acquitted of the charges under Section 304 Part 1, read with Section 34 and also under Section 326 read with Section 34, Indian Penal Code. They shall be discharged from their jail custody forthwith.
9. The appeal is allowed.
M.C. Pathak, J.
10. I agree.