1. The two appellants: (i) Laxman Dashrath Garad, aged 30 years, and (ii) his younger brother Mohan Dashrath Garad, aged 25 years, have been convicted by the Sessions Judge of Osmanabad for having killed their father, Dashrath Bali Garad, on the night of November 28, 1968 at village Jagaji by giving axe blows. Appellant Laxman has been sentenced to suffer the extreme penalty under the law i.e. death by hanging, and appellant Mohan has been sentenced to imprisonment for life for the same offence. The learned Sessions Judge has referred the sentence of death for confirmation, and the reference is registered as Confirmation Case No. 13 of 1969. Both the accused have also been convicted under Section 201, Indian Penal Code for having disposed of the dead body with a view to screen the offence of murder; but no separate sentence has been passed for this offence. Laxman's appeal is numbered as Criminal Appeal No. 1012 of 1969 and Mohan's appeal is Criminal Appeal No. 1048 of 1969.
2. Briefly the prosecution case is that there was a dispute between the two appellants on the one hand and the deceased Dashrath and his another son Shankar on the other for sharing of produce of crop from certain land which was being exclusively cultivated by the deceased and Shankar. The accused had a grievance that they had not received any share in the sale proceeds of disposal of some other properties and, therefore, they claimed right of share in the produce of the land cultivated by Dashrath and Shankar. A threat is alleged to have been given by the accused to the deceased because of his refusal to allow them a share in that produce. The deceased was occupying a hut in the land belonging to one Namdeo, and one Maruti Mang was also occupying another hut in the same land. The deceased Dashrath was engaged in poultry farming which was conducted by Namdeo Deshmukh, while Maruti Mang was an agricultural labourer also engaged by the same Namdeo. It was Thursday night when Dashrath was sleeping in his hut and Maruti Mang was also sleeping in his hut. Maruti suddenly heard cries of Dashrath. Then he came out and noticed that the two accused were dealing blows with axes to the deceased Dashrath. There was a lantern burning in the hut and Maruti had seen the act in the light of that lantern. Then Dashrath fell on the ground and died. The accused are then alleged to have wrapped his body in a gunny cloth. They tied the gunny cloth with a rope, Maruti was asked to hold a torch and walk ahead. Then Maruti was also forced to carry a pickaxe. All the three then went in the direction towards the boundary of village Ami. The dead body was thus carried by the two accused on their shoulders. Then the two accused dug a pit about two feet deep and buried the dead body wrapped in the piece of gunny cloth. Then they spread earth over it and all of them returned to the hut near the land. Then the two accused scraped the blood-stained earth from the floor and threw it into the well. Thereafter the clothes of the deceased, which were blood stained, were collected and they were thrown in the well. Then the two accused asked Maruti to accompany them towards the village, though he was not willing; he was compelled to accompany them under a threat. Then they went to a place called Barle land where one Sitaram Kakde, who has been examined as a witness, was sleeping in his hut. The accused then woke Sitaram and told him that they had killed Dashrath, and there being nobody to look after the hens and she-buffaloes on the Morvandi land Sitaram was asked to keep a watch there. Then Maruti was told by accused Mohan to go to the land of Namdeo and keep a watch over the crop and then to go to his house and not to disclose what he had seen to anybody. Maruti, however, went straight to Ms master Namdeo Deshmukh, woke him up and told him about the entire occurrence. Then Namdeo and witness Maruti went to Police Patil Venkat and narrated to him the entire incident. The Police Patil prepared a report as per exh. 8 and that was taken to the police station at Dhoki. Meanwhile the Police Patil had asked Pralhad Kotwal to find out and detain the two accused. S.I. Vasant Korde was in the police station when the Police Patil presented his report, on which offences under Sections 302 and 201 read with Section 34 were registered. The P.B.I. immediately went to Jagaji and sent for panchas. He attached the clothes from the person of the two accused, who were already detained by the Kotwal. The clothes were alleged to be blood stained. Then the accused were arrested and later alleged to have made several statements which led to the discovery of the weapons and also the discovery of the place where the dead body was alleged to have been buried. The dead body was sent for postmortem examination by Dr. Kalyankar, who found as many as 11 injuries on the person of the deceased Dasbrath; all these injuries were incised wounds. Out of these injuries, injuries Nos. 5, 6 and 7 were dangerous to life and according to the Doctor, the victim must have died instantaneously due to these injuries and of profuse inside haemorrhage. After completing the investigation, both the accused were charge-sheeted before the committing Magistrate on February 3, 1969. The learned Magistrate recorded the statements of the accused about having' received copies of documents on February 13, 1969 and adjourned the case for recording evidence, which was actually recorded on March 18, 1969. Witness Maruti was examined in the committal Court. This witness, who is an eye-witness and the principal plank of the prosecution case, was not cross-examined at all on behalf of either of the accused, because the accused were not represented by counsel in that Court. On the same day the committing Magistrate recorded the statements of the accused, and both the accused stated, in answer to a specific question by the Magistrate as to whether they are going to engage their own pleader in the Sessions Court, in the affirmative.
3. The committal proceedings and the committal order appear to have been received in the Sessions Court on March 26, 1969. The covering letter with the committal order stated that the accused would make their own arrangements to engage a lawyer on their behalf in the Session's Court. It is obvious that the accused did not make any arrangement nor engaged any lawyer on their behalf till June 16, 1969. The Public Prosecutor made his submission on May 2, 1969, about the witnesses he proposed to examine and the learned Judge fixed the case for evidence with effect from June 18, 1969 before himself.
4. On June 16, 1969 both the accused sent a communication to the learned Sessions Judge, Osmanabad, through the Osmanabad District Prison where they appear to have been detained, intimating that they had received Communication No. 3316 dated June 13, 1969 from the Sessions Judge intimating the two accused that their trial under Sections 302 and 201, Indian Penal Code was fixed for hearing before the Court on June 18, 1969, and further requesting the accused to inform the Sessions Court whether they have engaged any pleader and to inform that fact before June 15, 1969. It is in reply to this communication that the two accused intimated the Sessions Judge by their communication, which is .to be found on Record at page 9 of File IV of the Sessions Court record, that they were unable to bear the expenses of engaging- a lawyer because their financial condition was very poor and their annual income is not more than Us. 300 to Us. 400. They, therefore, requested that a counsel be appointed for them at the State expense. This communication was received by the Clerk of the Court on the next day, perhaps on June 17, 1969; but it does not seem to have been brought to the notice of the Sessions Judge on that date.
5. The order sheet on the date the trial opened i.e. on June 18, 1'969 reads as follows:-
18-6-1969 Before Shri C.U. Bora, LL.B., Sessions Judge, Osinanabad. The Public Prosecutor is present for the State. Shri A.S. Deshpande (Adv). appointed is present for the State, Shri Devidasrao Deshpande, Advocate, is appointed as (Amicus Curiae) pauper Pleader on behalf of the accused.
Both the accused have been brought from Jail. They are also present in the Court. Exh. No.
1. Roznama diary of this case. The charge was read over to the accused and explained in Marathi. Both the accused plead not guilty to the charge and claim to be tried.
2. Charge framed by this Court.
3. Vakil Patra filed by Shri D.N. Deshpande, Advocate for the accused.
4. last of Muddemal articles before the Court. The Public Prosecutor has opened his case under Section 286 Cr. P.C. for the prosecution and following evidence has been produced:
5. Deposition of prosecution witness No. 1- Narayan Dadarao Shelke of Jagji.
6. Deposition of prosecution witness No. 2- Gangaram Mohan Ade r/o Jagji.
7. Deposition of prosecution witness No. 8- Venkat Narahari Patil, Police Patil, Jagji.
8. Report made by Police Patil to P.S.I. Dhoki.
9. Deposition of prosecution witness No. 4- Namdeo Tatya Deshmukh of Jagji.
10. An application made by P. P. to drop witness Nagnath Narayan and the order passed thereon.
It is now 6/30 p.m. The case is adjourned till tomorrow for further hearing. The accused be sent to Dist. Jail with the direction to keep them present in Court tomorrow at 10/30 a.m.
Muddemal be returned to Nazar, Court. The remaining witnesses are bound down for tomorrow.
Adjourned till tomorrow for further hearing.
Dated : 18-6-1669
Sessions Judge, Osmanabad.
It is obvious from this order sheet of this date that no counsel having been engaged by the accused, the learned Judge thought it necessary to engage one Shri Devidasrao Deshpande, who was appointed as a pauper pleader (amicus euriae) on behalf of the accused. We may mention here that steps seem to have been taken by the learned Judge a day prior, and there is on record an order of the learned Judge, dated June 17, 1969, to the following effect. This order is to be found at page 11 of File IV of the Sessions Court record:-
Shri Devidasrao Sangvikar, Advocate, B.Com., LL.B., Pleader, is appointed as a pauper pleader to defend the accused Laxman Dashrath Garad and Mohan Dashrath Garad, both r/o Jagji, Taluka Osmanabad, in Sessions Case No. 7i69 which is fixed for hearing from 18-6-09,
Shri B.V. Shinde, Senior Pleader, is appointed to guide Mr. Devidasrao Sangvikar, Advocate.
We are not able to find any paper in this file as to when exactly this order was communicated to either of these counsel i.e. Shri Devidasrao Sangvikar or Shri Shinde, because there is no record of any such communication. Probably no communication was sent to either of these pleaders, and Shri Devidasrao came to be appointed only after the trial opened before the learned Judge on June 18, 1969, itself. On that date not only the Public Prosecutor opened the case for the prosecution and charge was framed and read out to the accused, but as many as four important witnesses for the prosecution were examined, out of whom Kamdeo Tatya Deshmukh (P.W. 4) is certainly a very important witness. In fact all the witnesses examined have something to say regarding the conduct of the accused and the antecedent events.
6. When this appeal was called for hearing, the learned Counsel appearing for accused Mohan, who is holding an appointed brief, was requested to open the case as the senior counsel was not immediately available. Shri V. G. Pradhan for accused No. 2 took us through the evidence of important witnesses; in the case and thereafter submitted that the trial of the two accused is vitiated because sufficient time was not given to the counsel appointed to defend the two accused in the Sessions Court. According to the learned Counsel for the appellants, the appointment of counsel, amicus euriae to defend an accused who is charged with a crime which may involve capital punishment is not a mere formality; that a right is created in such a person to be defended by a lawyer under the rules. This Court has framed rules for these matters and the Rules are to be found in Chapter IV of the Criminal Manual issued by this Court. Rule 7 in this Chapter provides for engagement of pleader for such an accused person. That rule reads as follows:-
7. The following orders have been issued in regard to employment of Picador for the defence of persons accused of offences punishable with death :
(1). In all cases committed for trial in the Court of a Sessions Judge, and in confirmation cases, references from the verdicts of Juries, Appeals from acquittals, and enhancement proceedings in revision, 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 or, if the case has already been tried, by the trial Court that, unless he intends to make his own arrangement for legal assistance, the higher Court will engage a Pleader at the Government expense, to appear before it on his behalf. If it is ascertained that he does not intend to engage a Pleader at his own expense, a Pleader shall be engaged by the higher Court concerned to undertake the defence, and his remuneration shall be paid by Government...
(3). The appointment of a Pleader for the defence should not be deferred until the accused has been called upon to plead. The Pleader should always be appointed in sufficient time to enable him to take copies of the depositions and other necessary papers which should be furnished free of cost before the commencement of the trial. He should also be allowed to make copies of depositions of witnesses and other necessary papers during the trial in sessions case without charging any fees, if he applies for the same. If after the appointment of such Pleader, the accused appoints another Pleader, the Pleader appointed by the Court may still in the discretion of the Court, be allowed his fees for the case....
(7)...The appointment of such lawyer for the defence shall not be deferred until the accused has been called upon to plead. The lawyer should always be appointed in good time to enable him to take copies of the depositions and other necessary papers which should be furnished free of cost before the commencement of the trial. If after the appointment of such legal practitioner the accused appoints another lawyer, the lawyer appointed by the Court may still in the discretion of the Registrar of the Court be allowed his fee for the case and the copies already prepared will be available upon payment for the use of the lawyer privately appointed by the accused.
By particular reference to Sub-rule (3) of Rule 7, it is contended that the rule requires that the appointment of a pleader for the defence should not be deferred until the accused has been called upon to plead and the pleader should also be appointed in sufficient time to enable him to obtain copies of the depositions and other necessary papers which shall be furnished free of cost before the commencement of the trial. In the instant case, it is obvious that somehow the fact that the accused had not engaged a lawyer had almost escaped attention till one day before the trial was to commence; and when the accused intimated on June 17, 196'9, that they were unable to engage a counsel on their own, steps were taken to engage a junior counsel as also a senior counsel for guiding the junior counsel. But even this appointment appears to have been made effective almost after the trial commenced, as the order sheet would show. We are also unable to resist the inference, considering the very limited cross-examination of important witnesses in this case, that the grievance made that the accused were prejudiced in their trial and proper defence appears' to be well-founded. Reliance, in support of this submission, is placed on the recent decision of the Supreme Court in the case of Bashira v. State of U.P. : 1SCR32 Like the Allahabad High Court, which had framed Rule 3'7, this Court has also framed Rule 7 in the Criminal Manual. These rules are statutory and have the force of law and they are expressly made to regulate a fair trial. The appointment of a counsel for defending a pauper accused facing a capital charge is thus not a mere formality which has to be carried out on the eve of commencement of the trial before the Sessions Court. Assistance of a counsel is intended to be effective, and a mandatory provision is made that the appointment must be made sufficiently in advance to enable the counsel to prepare himself by obtaining copies of depositions: and other necessary papers well in advance as also instructions from the accused. If a counsel is appointed almost after the trial has commenced, as appears to be the case here, the disadvantage and handicap he must be suffering are too obvious to be emphasised. Not only the appointment in this case was made on the same day on which the trial commenced, but as many as four important witnesses were also examined on that date. On the next day eye-witness Maruti as well as other important witnesses were also examined. It is true that the counsel who took the responsibility of defending the accused facing such a serious charge does not appear to have made any grievance or made any request that the trial should be adjourned. But we do not think that that may be on account of want of adequate opportunity to carry on with the trial, and may rather be merely on account of the fact that the counsel was holding an appointed brief, We also find that even though the learned Sessions Judge took care to appoint a senior counsel to guide the junior counsel, either the senior counsel was not intimated about that fact or the brief was not accepted by the senior counsel. Whatever be the circumstances in which the advice and guidance of a senior counsel was not available to the junior counsel, the fact remains that the defence of the accused has suffered considerably on account of such advice and guidance of a senior counsel not being made available.
7. It was urged on behalf of the State that not only there was no request for adjournment which ordinarily comes forth, but it is not shown that there is any prejudice on account of such appointment at the eleventh hour as it were. In our opinion, it is not necessary to demonstrate affirmatively the prejudice in such cases. As observed by the Supreme Court, if sufficient time in not granted to the counsel to prepare himself to defend, prejudice must necessarily be presumed and the trial will be vitiated. We are bound by this principle of procedure to be followed in criminal trials of the accused persons who have not the means to engage a counsel for their defence and where the State takes the responsibility, that responsibility must be duly discharged by taking steps well in advance to engage a counsel who will have enough time to prepare the brief, obtain instructions and do his best to defend the accused person.
8. We may also observe that the practice of appointing counsel from the junior members of the Bar is undoubtedly with a view to encourage them to have experience of responsible work. But where the charge is of a serious nature where capital punishment is involved, the Sessions Judge must invariably see to it that a senior counsel is simultaneously appointed to guide the junior counsel. This practice is invariably followed in this Court, and there is no reason why, with the co-operation of the senior members of the local Bars- which we have no doubt can be always counted upon, it should not be possible to secure guidance and advice of a senior counsel in all such cases. Though this precaution was taken by the learned Sessions Judge in the instant case, somehow the benefit of such guidance was not available at the trial to the junior counsel, and that also must have resulted in considerable handicap in the conduct of the defence.
9. Thus without going into the merits of the accusations we have come to the conclusion that the trial in this case is vitiated on account of a serious defect of procedure prescribed, inasmuch as the accused have been deprived of effective assistance in their defence on account of an almost belated appointment of counsel which must have resulted in prejudice being caused to these accused persons. Even if the fact that a counsel was not engaged by the accused on account of poverty was brought to the notice of the learned Sessions Judge at the nick [sic] of the commencement of the trial, the learned Judge would have been well advised to postpone the commencement of the trial to enable the counsel appointed by him to make proper preparation for the defence after obtaining instructions and other documents. This not having been done, prejudice must be inferred and this vitiates the trial.
10. In the result, therefore, we set aside the conviction and sentence passed against both the appellants and direct that the case shall be tried afresh from the commencement after taking proper steps to appoint a counsel for the accused as provided for by Rules of this Court and particularly Rule 7 in Chapter IV of the Criminal Manual, and the appointment should be made sufficiently in advance to enable the counsel to prepare for the defence adequately and effectively.
11. As the learned Sessions Judge himself has come to the conclusion on the evidence before him, we direct that a fresh trial be held before some other Judge competent to try the case.