Amaresh Roy, J.
1. This appeal has been preferred under Section 411A of the Code of Criminal Procedure by Panchu Gopal who has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life in a trial held in the Fourth Criminal Sessions of 1964 presided by our learned brother, the Hon'ble Mr. Justice A K. Das sitting with a Special Jury in the ordinary Original Criminal Jurisdiction of this Court. The jury delivered a unanimous verdict of guilty under Section 302 of the Indian Penal Code against Panchu Gopal and accepting that unanimous verdict the learned Judge convicted him for that offence and awarded a sentence of imprisonment for life on September 16. 1984.
2. The occurrence that led to the charge against the appellant happened on the 12th September, 1963 The Magistrate made the order of commitment on 7-3-64 Before the Magistrate the procedure under Section 207 A of the Code of Criminal Procedure was followed The accused does not appear to have appointed any lawyer on his behalf during that proceeding. After he was committed to be tried in the Court of Session and before the trial commenced on the 7th of Febmary, 1964. two lawyers were engaged by the State to appear for the accused at the trial. The minutes of the trial in this Court show that Mr. P. C Barua with Mr. Mahadev Ghosh. both Advocates of this Court appeared for the prosecution and Mr. Bonbehari Das with Mr. Joydev Mallick 'appeared for the accused being engaged by the State.' On the first day of the trial Mr. Bonbehari Das prayed for two copies of depositions free of charge, one for himself and the other for his junior Mr. Joyeder Mallick The learned presiding judge granted the prayer and allowed two copies of deposition free of charge Throughout the trial Mr. Bonebehari Das assisted by bis learned junior conducted the case for defence by cross-examining the witnesses examined for the prosecution and he addressed the fury on behalf of the accused after Mr. Barua addressed the Jury at the close of the evidence in the trial.
3. After the order of conviction was made the accused preferred this appeal fromAlipore Central Jail on 13th November, 1964, under Section 411A of the Code of Criminal Procedure. By an order dated the 20th November, 1964, a Division Bench on the Appellate Side admitted the appeal to be heard and in that order granted Special Leave under Clauses (b) and (c) of Section 411A of the Code of Criminal Procedure The appellant was not represented by any lawyer at that preliminary hearing for admission. Usual notices were issued upon that order admitting the appeal including a notice under Section 422 of the Code of Criminal Procedure to the appellant himself who was then lodged in All-pore Central Jail The two Counsels who re-presented him at the trial have not been made available in him in this appeal
4. When this appeal was placed before us for fixing a date of hearing, we noticed that the appellant who was tried and convicted on a charge under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and who was defended at the trial by two Counsel engaged by the State to represent him had neither appointed a lawyer to argue the appeal on his behalf nor the State had made any arrangement for representation of this appellant at the hearing of the appeal When that situation was revealed in the open Court, in accordance with invariable and helpful practice of the Bar(sic) learned Advocate Mr. Jyotish Bose expressed his willingness to argue the case for the convicted appellant amicus curiae at the request of the Court Under our orders a copy of the brief was made available to Mr. Bose and the said learned Advocate has argued the case for the appellant over several days with commendable zeal and enormous labour although he was not engaged on fees either by the appellant or by the State. The assistance Mr. Bose gave to this Court in dealing with the appeal has been very valuable indeed and we express our appreciation to Mr. Bose in particular and to the defence Bar in general for making such voluntary assistance available to Court to assist us in our endeavour to achieve justice in criminal appeals That assistance is all the more valuable when the offence for which the appellant is convicted and sentenced is the heaviest that Criminal Law in India contemplates We will deal with this aspect which we have just mentioned when we will discuss the very first point that understandably and not unnaturally Mr. Bose has raised in this appeal in respect of propriety and legality of Criminal trials when the accused is nol represented by any lawyer of his choice appointed by himself Before we do so however the broad outline of the facts alleged against the appellant and the lines of defence that appear to have been taken at the trial need be mentioned.
5. The prosecution case that on 12th September 1963. four handcarts, each of which was being pulled and pushed by three persons were carrying Tata Bar Soap from a Cossipore godown to a place of business at Rajakatra in this City. In one ofthose handcarts a person named Raghubir was pushing the cart along with two other persons. Besides the laid Raghubir there were in all eleven other cartpullers in respect of the four handcarts. P.W. 6 Ganesh Singh, P.W. 7 Masudan Singh, P. W. 10 Mohanlal Chaudhuri and P. W. 12 Parmanand Mahato were four amongst those cartmen. It is the prosecution case that at about 10/10.30 in the morning the four carts had gone to the go-down at Cossipore on being engaged to carry a consignment of Tata Bar Soap. After load-Ing the four carts with the said commodities they started from the Cossipore godown at about 11.30 a.m. On their way to Rajakatra they had come on Girish Avenue at its function with Rajballav Street at about 1.30 or 2 p.m. The day was very hot without any cloud. The four carts were stopped by the twelve cartpullers on Girish Avenue in front of Premises No. 55A, Raja Rajballay Street which was at the time under construction The tired cartpullers wanted to have a little rest there and had tea and water from the tea shop at 1/1. Raja Para Lane which shop is on Girish Avenue at its crossing with Raja Para Lane and the shop belongs to P W 3 Kalipada Ghoshal. After the cartmen had finished taking tea and water they noticed that the accused Panchu Gopal was taking away some Soaps from the handcarts parked on the road Raghu-bir resisted and snatched awav a bar of soap from the hand of Panchu Gopal with whom he had altercation at the time. Panchu Gopal went into Raja Para lane which is a blind Lane and soon came hack out of that Lane with a knief in his hand. As he approached, the cartpullers then scattered but Raghubir stood to protect the pro-perty which were in the handcarts Panchu Gopal stabbed Raghubir on his back with the knief which was in his hand Raghubir fell down on the road in a pool of blood Panchu Gopal immediately ran northwards along the Girish Avenue He went a few steps and then crossed the road and then ran along Girish Avenue and disappeared along Ram- kanto Bose Street. It fs the prosecution case that the incident was seen not only by four cartmen who have been examined as prosecution witnesses in the case but also by Kalipada Ghoshal the owner of the tea shop and another person named Murari Mohan Ghosh (P. W. 2) who was at a distance of about 10 yards from the place where Raghubir was stabbed on the other side of the tea shop. The prosecution alleges that Panchu Gopal after he had stabbed Raghubir ran past the said Murari Mohan Ghosh who had already seen the act of stabbing by the hand of Panchu Gopal and also saw a blood-stained knief in the hand of Panchu Gopal as he ran past Murari Some local people collected at the place where Raghubir had fallen and the cartpullers who had scattered came back also. One of the cartpullers. Ganesh Singh, P W 6, went to the nearby thana which is Shyampu-kur Police-station and lodged an information which was recorded in the general diary entry at 2.46 p.m. The police arrived at the placeof occurrence within ten minutes therefrom and found Raghubir Singh lying in a pool of blood only making a groaning sound but unconscious. The police officer stopped a passing car and took Raghubir in that car to the hospital. At the hospital Raghubir was declared dead.
6. The police officer in the meantime started investigation, examined some witnesses on the spot and looked for accused Panchu Gopal whose name had transpired at that early stage as the assailant of Raghubir, Panchu Gopal could not be found although the police was looking for him and he was arrested on 29th September 1963 at the crossing of Shyampukur street with Cornwallis Street. Immediately on his arrest the police gathered from a statement made by Panchu Gopal certain facts and Panchu Gopal led the police to a place in Ramkanto Rose Street where he pointed him a manhole With the help of two sweeper boys who were working in the manhole the police recovered a dagger in the presence of some witnesses from that manhole It may be mentioned that the knife was sent to the Chemical Examiner and Mood was found on that knife The Serologist however, could not fix the source of that blood because of disintegration and there is no opinion of any expert to show that blood found on the knife was human blood.
7. On those allegations Panchu Gopal was charged under Section 302 of the Indian Penal Code for intentionally causing the death of Raghubir Singh and upon an order of commitment by a Presidency Magistrate he was tried in the Court of Session on that charge.
8. The defence of the accused Panchu Gopal was a plea of innocence His particular defence as it may be discerned from the line of cross-examination of the prosecution witnesses and also his statement made under Section 342 of the Code of Criminal Procedure appears to be that he does not live In the locality where the occurrence took place and he was not present at the place of occurrence at the relevant time. Besides that line of defence another line was also forcefully taken by the defence that the cartpullers really wanted to dispose of the consignment of soap in the black market with the help of tea-shop's owner, Kalipada Ghoshal. Murari Mohan Ghosh and another person For that purpose the carts were stopped in front of Kalipada Ghoshal's shop where there was a conference amongst them in course of which there wai an altercation amongst the cartpullers over the money they were to get in the transaction. In course of that transaction one handcart puller stabbed his comrade Raghubir Singh in the back and fled away Murari picked up the knife and it was Murari who put that knife in the manhole from where it was later recovered In connection with that line of defence it was also suggested during cross-examination of prosecution witnesses that after that stabbing incident the police was not informed immediately but the cartpullcrs and their associates including Kalipada and Murariwaited quite a long time to ensure that Raghu-bir should not be given any opportunity to make a dying declaration regarding the per-on who actually stabbed him According to the defence the occurrence had taken place at about 12.30 P.M. and Information to the police was given about two hours later, only after Raghubir had died at the place where he fell. While these are the broad lines of defence, incourse of development of it at the trial there were other controversial points raised which will appear as we proceed to discuss the evidence that has been given in the trial including the materials that have been elicited in cross-examination ;
9. The doctor who declared Raghubir dead is P.W. 5 Dr. Somnath Roy of R G. Kar Medical College Hospital He examined the person at the Emergency Department at 8.30 P.M on 12-9-63 He found Raghubir al-ready dead and following the usual practice, that doctor (P W 5) did not examine the in jury on Raghubir because he was already dead. That witness was not cross-examined by Defence Counsel.
10. The injury that was found on the person of Raghubir has been proved by P W 13 Dr. Kalipada Bose. Lecturer in Forensic and State Medicine, N.R.S Medical College who held the post-mortem examination on the dead bodv on 13-9-63 at 3.30 P.M He has described the main injury as one incised penetrating wound (stab wound) on the back of the chest, left side. 4' medial to inferior angle of left scapula and 1' lateral to the verti-bral spine. 7th dorsal little obliquely placed. The terminal ends of the spindle-shaped wound were angular and the direction of the whole wound was forward downwards and medial-wards. It passed through the 7th inter-cos-tal space in its posterior part the inter-costal muscles and partially cut the upper border of 8th rib and the body of the 8th dorwal vertlbrae. The doctor (P.W 13) also mentioned the dimensions of this injury as it appeared on the surface and the depth of penetration which was chest cavity, but there has been obvious mistake in recording the length and breadth of the incised wound on the surface as the witness deposed by reading from the post-mortem report contempo raneously made, but written in indistinct dot pencil. It is unfortunate that care has not teen taken to check the transcription in typewriting from the Stenographer's notebook andor the Original post-mortem report by reference to which the medical expert deposed. The Minutes of 11th September, 1963 show that some corrections were made in record of depositions of 10th, But there has been no correction in the original record of deposition of this witness (who was examined on 10th September. 1963) in this material part and the obvious errors there have been carried into the Paper book prepared for the Appeal. Lack of care and attention is writ large in the record of trial and its magnitude in a trial on a charge under Section 302 I.P.C. against a person who was not defended by alawyer engaged by himself is great indeed. However that may be, the doctor (P.W 13) also found another small injury 1/2' x 1/8' muscle deep on the palmer aspect of left hand and also one Hematoma on the left temporal region measuring 1/2' x 1' Dr. Bose (P.W 13) gave his opinion that the injury on the chest was the cause of death and it was sufficient in the ordinary course of nature to cause death In his opinion the other two injuries could be caused by fall, one on some sharp edge, and the other on any hard blunt substance In cross examination the doctor (P W 13) was asked manv questions to suggest many alternative theroies about the nature of attack. One was that the attack was from the front and the injury on lhe palm was received in resisting that attack and when the victim turned his back the same man stabbed on the back. The other was that the victim was attacked by two men, one from the front and another from the back The medical expert (PW 13) repelled those suggestions as unlikely or not possible or very uncommon. To Court's question tf the injury on the palm could be caused also in course of drawing out the weapon after the blow if the injured lifted his hand towards the injury after being struck. the witness answered that it is not possible (Q. 36). That was on 10th September, 1963, before recess. It is interesting to notice that on the very next day (11th September, 1963) first witness examined was P W 20 Dr S K Roy. Professor of Forensic and State Medicine, Medical College, Calcutta The minutes do not show in what circumstances prosecution chose to call and examine Dr. Roy (P W 20) to give his expert opinion only in respect of the injury on the palm But his deposition shows that he received a telephone message at about 3 P.M. on 10th September 1963 from the Inspector's office It is also particularly noticeable that question asked by prosecution Counsel to this witness was to 'give an opinion as to how in jury No. 2 could have been caused at the time injury No. I was inflicted' on looking at and reading the recorded deposition of P W 13 Dr K P. Bose, particularly Q. 6. where the error in the original record of deposition occurs The expert P.W 20 was not careful to notice the error, though the knife. Ext IV was shown, but gave his opinion instantly supporting the theory appearing in question asked by Court to P.W 13 on the previous dav which theory was not accepted by P W 13 and finds no support in any part of the deposition of six eye witnesses relied on by prosecution. Questions in cross-examination of P W 20 were generally directed to physical improbability of a human being placing his left palm al the base of his own left scapula near its inferior angle. To defence suggestion that the posture is very accrobatic P W 20 gave his answer' probably' (Q. 11) it was intended to be an expert's opinion and in our view the improbability of that accrobatic posture is emphasised by that answer of Dr. Roy.
11. The whole case depends upon reliability of the six persons who claim to be eye witnesses to the occurrence that happened in broad day light in the middle of a bright sunny day on a wide and open road in Calcutta.
12. Before we proceed to consider the evidence provided by those eye witnesses relied on by prosecution, we need refer to a basic question to which our attention has been drawn by Mr. Jyotish Bose who assisted us amicus curiae on behalf of the appellant Mr. Bose has emphasized that in all Criminal trials particularly in trials on murder charge, it is essential for a fair trial and also natural justice that the accused should have legal assistance. He says that it is the duty of the Court to provide the accused with a lawyer to defend him if he is not in a position to avail the services of a competent lawyer at his own cost and such independent legal as ststance is the minimum necessity of effective defence Mr. Bose therefore contends that while effectiveness of defence Counsel is important, no less important is who has selected and engaged the Counsel for defence In the Code of Criminal Procedure Section 340 acknowledge the right of an accused to be defended by a lawyer Article 22(1) of the Constitution guarantees as a fundamental right his right to be defended by a lawyer of his choice It is true that the constitutional guarantee does not give a right to be provided by a lawyer at question whether the State can engage a lawyer to appear for the accused on trial without ascertaining the wishes of the accused in that respect? He contends that to do so would be putting a 'halter round the neck' of a person facing a Capital Charge, because not only the choice has been not of the accused, but also by the fact that the defence Counsel has been engaged by the State, the legal assistance brought in use has ceased to be independent and effective for proper defence. For both these reasons according to Mr. Bose natural justice and fair trial have been denied so much so that the trial should be held to have been vitiated. Mr. Bose goes a step further and invites us to hold that when an accused does not appoint a lawyer of his choice, it is improper for the State as the prosecutor to impose a lawyer engaged by the State He contends that it is much safer and better for the accused to go undefended at the trial because in such situation he inevitably draws the active, watchful and energetic attention of the presiding Judge and also of the Jury to test prosecution witnesses by questions and check prosecution Counsel against any unfairness or overzealousness to introduce inadmissible or prejudicial evidence. In other words he says that a show of defence is not a substitute for effective defence, and it is much worse than none, as it turns out to be a false show always, because it in effect tends to neutralise a stronger force that an alert Judge always is, and often turns out to be a booby trap for the accused. Prosecu-tor, the State really hunts with the bound and mascurades to run with the hare by engaging both the prosecutor and the defender. (13) Though we do not accept all the reasons urged by Mr. Bose, it raises a grave question as a matter of legal sanction, without any reflection on ability honesty and earnestness of any particular lawyer who has been engaged by the State to appear for the accused without any opportunity being given to the accused to make his choice or express his wishes It is a pure question of law to ensure fair trial, and calls for serious consideration to ascertain correct position in law.
14. The question simply is whether there is any legal authority in the State to engage a defence Counsel? If there is none, whether such action by the State vitiates a trial ipso facto, or whether prejudice in fact need occur to invalidate the trial?
15. It is admitted on both sides before us that there is no statutory provision that enables the State to engage a defence Counsel, and we also cannot lay our land on any. Nor can we discover any Rule, regulation or order either by Government or by High Court in that respect. Only provision we have been able to trace is in Legal Remembrancer's Manual to which we shall presently refer
16. Before we do so, we may dispose of an allied objection raised by Mr. Bose. In raising the question about power of the State Government to engage a defence Counsel to represent the accused at the trial, he also drew our attention to the minutes of the first day of the trial on 7th February, 1964, which shows that the prosecution was conducted not by the Standing Counsel or anyone on his behalf, but the two learned Advocates Mr. P. C Barua and Mr. Mahadev Ghose appeared for prosecution. Mr. Bose pointed to Section 270 of the Code of Criminal Procedure which says 'In every trial before a Court of Session the prosecution shall be conducted by a Public Prosecutor' He tended to suggest also as a matter of propriety that in trials of accused persons charged with major offences like the present one. which was a charge under Section 302 of the Indian Penal Code, that provisions of the Code should be strictly adhered to even in High Court Ses sions which has not been made an exception in that section. In that part of his argument also Mr. Bose. made it clear that he was not making any reflection on the capability of the learned Advocates who appeared for the prosecution in this trial, hut addressed us on the guaran tees of a fair trial for ensuring which Coun-sel for the prosecution has to bring into use sound discretion and also strength of view point to prevent over zealousness in conduct ing prosecution. He laid emphasis on that necessity as having been implied in the ex-press provision of Section 270 Cr. P. C.
17. Mr. Bose's pointer in respect of the conducting of prosecution in the trial by the learned Counsel who are not appointed Public Prosecutors undoubtedly receive sup-port from the necessities of fair trial which isthe principle of law behind Section 270 Cr. P. C. But At the same time the definition of 'Public Prosecutor' in Section 4(1)(t) Cr. P. C. expressly includes 'any person conducting a prosecution on behalf of Government in any High Court in the exercise of its Original Criminal Jurisdiction' That provision legalisticully makes a Counsel on behalf of the Government, irrespective of his manner of appointment, a 'Public Prosecutor' Mr. Barua before us has stated that he and his learned Junior Mr. Mahadev Ghose were instructed by the Public Prosecutor in High Court to conduct prosecution in this case in the High Court Session. Therefore, there is no legal defect so far as prosecution Counsel is concerned in this trial.
18. But in respect of the learned Coun-sel who appeared to represent the accused,being engaged by the State, we do not findany legal authority for the State on its ownright to engage a Counsel to represent a person whom the State is prosecuting. Section340 Cr.P.C. provides 'Any person accused ofan offence . mav of right be defended by a pleader' Article 22(1) of theConstitution guarantees 'the right to consultand to be defended by a legal practitioner ofhis choice' Neither the constitutional provision nor the Code in Section 340(1) enjoinsany duty on the State, which is the prosecuting Authority, to provide a lawyer for defence of the accused on trial. The CriminalRules and Orders made by this Court forguidance of Subordinate Courts or the Criminal Side Rules in Chapter XXXVTI of theOriginal Side Rules of this Court are completely silent on the subject It has been alsoagreed on both sides before us that there isno Notification by any Authority on this subject. The only provision that we could traceis in Legal Remembrancer's Manual compiled in the office of the Legal Remembrancerand published in 1930 where in Chapter XIthe heading is. 'Representation by Government of pauper accused punishable withdeath' Rule 1 in that Chapter is in theseterms: 'Pauper accused punishable with capital sentence to be given legal assistance --Every person charged with committing anoffence punishable with death shall havelegal assistance at his trial and the Courtsshould provide Advocates or Pleaders for de-fence unless they certify that the accused canafford to do so'. Even there no indicationappears regarding the method by which theCourt can provide defence lawyer We. therefore, accept Mr. Bose's contention that thereis no provision either in any existing law orany Rule or Notification conferring any rightOr authority on the State Government toengage a lawyer to represent the accused in aCriminal trial.
19. The matter has, therefore, to be examined as one of natural justice. It ia quite clear that an accused person on trial who has not engaged any lawyer of his choice to conduct his defence at the trial may he helped 'ex-gratia' by the State Government. Thequestion raised by Mr. Bose. however, is whether the State Government can engage a defence lawyer without ascertaining the wishes of the accused and without giving him any choice in selecting his lawyer. In that bareness that question in our view can only be answered in the negative for the reason that Article 22(1) of the Constitution guarantees that choice of a lawyer for Ihe defence can only be of the accused himself But at the same time when from the records of the trial it appears that lawyers engaged by the State to appear for the accused were functioning as such from the beginning of the trial and at all stages in presence of the accused, without any demur by the accused at any stage of the trial, then it may he possible to infer that the accused accepted those lawyers for his defence by exercise of his own choice, tacitly, though not expressly In the present case that is what loudly appears in the record which shows that the lawyers engaged by the State were conducting defence day after day. energetically cross-examining the witnesses for prosecution, making suggestions to establish innocence of the accused, and addressing the Jury for gaining verdict of not guilty The accused who. as a matter of invariable practice in Sessions trial in the Original Side of this Court, is provided with an interpreter sitting near him to help him in making any communication to court, does not appear to have raised any objection in the matter of representation at the Bar. It is true that nothing appears in the record of the trial that the accused was asked about his choice, nor any information whether he had any opportunity to impart instructions to the learned Counsel for defence either before or during the trial, because the two learned Counsel who were engaged by the State at the trial stage have not been made available to us in this appeal We would, therefore, accept the contention of Mr. Barua for the State that the accused-appellant had at the stage of the trial exercised his choice tacitly, though not expressly, to be defended by those two lawyers We feel, however, constrained to observe that proper rules in this respect should be made by appropriate authorities because the emphasis put by Mr. Bose on the necessity of independent legal assistance being available to the accused on trial is of great fundamental importance in all Criminal trials and more so when the trial is on a major charge of offence punishable with death like the present one It is true that in a Criminal trial there is no necessity for any power or warrant or Vakalat-nama to be filed for authorising the lawyer for the accused But it is very important indeed for a lawyer who has not been directly engaged by or on behalf of the accused to be perfectly certain that the accused, of hia own choice, has agreed to be defended by him. That necessity in out view assumes greater importance when the lawyet for defence is engaged by the State which is the prosecuting authority. Integrity and independence of themember of the Bar are big guarantees no doubt at all time. Yet for the strength and fearlessness that is necessary for proper defence, it is not enough that integrity and Independence of members of the Bar exist, but it is essentially necessary that such Independence should be seen in its operation.
20. The grave danger to which justice is exposed when proper care is not taken in the matter of proper representation of an accused person in a trial involved in Capital trial is illustrated by the case reported in AIR 1063 Ker 64, Mohammed Kunnummal v. State of Kerala. The learned Judges of the Division Bench (Anna Chandv and P. Govinda Menon, JJ.) While acquitting the convicted accused who in the trial Court had been sentenced to death, observed.
'Before we part with the case we have to strike a note of warning against the practice of some of the Sessions Judges appointing raw and inexperienced juniors to defend the accused in capita] cases If however such inexperienced advocates alone are available to defend such unfortunate accused the court has a primary duty to come to the aid of the accused by putting timely and useful questions and warning the advocates from trad-Ing on dangerous grounds. In this case it 1ft really unfortunate that the court has instead freely made use of the defects resulting from the inexperience of the advocates to build up the case against the accused.'
21. We may also draw attention to the decision of the Supreme Court in the case of Janardhan Reddy v. State of Hyderabad, reported in : 2SCR344 in which dealing with the same question it has been laid down.
'In arguing this part of the case. Mr. Pritt relied on certain American cases, especially on Powell v. Alabama, 287 U.S. 45, in which the S.C. of America is reported to have observed as follows :
'In a capital case where the deft, is unable to employ Counsel, & is Incapable of adequately making his own defence because of Ignorance, feeblemindedness, illiteracy or the like, it is the duty of the court whether requested or not, to assign a counsel for him as a necessary requisite of due process of law.
That the assignment of a counsel in the circumstances mentioned in the passage is highly desirable, cannot be disputed. But the question raised before us is whether in law non-assignment of a counsel would vitiate the trial. It seems to us that in dealing with the point, we cannot rest our judgment wholly on American precedents, which are based on the doctrine of due process of law, which is peculiar to the American Constitution and also on certain specific provisions bearing on the right of representation in a criminal proceeding. The provision which is material to the contention raised before us is Section 271 of the Hyderabad Crl. P.C., which corresponds to Section 340 Cri. P. C. which runs as follows: 'Any person accused of an offence before a criminal Ct., or against whom proceed-ings art instituted under this Code in anysuch Ct, may of right be defended by a pleader. This provision must undoubtedly be construed liberally in favour of the accused and must be read along with the rules made by the H. Cts. and the circular orders issued by them enjoining that wherein capital cases the accused has no means to defend himselt, a counsel should be provided to defend him. The proper view seems to us to be (1) that it cannot be laid down as a rule of law that in every capital case where the accused is unrepresented, the trial should be held to be vitiated; and (2) that a Ct. of appeal or revn is not powerless to interfere, if it is found that the accused was so handicapped for want of legal aid that the proceedings against him may be said to amount to negation of a fair trial.'
It has also to be noticed that in a recent Supreme Court decision : 1966CriLJ1521 , State of Madhya Pradesh v. Shobharam it has been held by the majority (Bachawat. Shelal and Hidayatullah, JJ. concurring, Sarkar, C. J. and Mudholkar, J. dissenting) that 'we find no warrant for giving a restricted interpretation to the second part of the clause (Article 22(1)) by reference to Article 21 and for laying that the right to be defended by coun-sel is limited to a trial in which the arrested person is in jeopardy of being sentenced to death or to a term of imprisonment'.
22. In addressing us for consideration of the evidence that was given by prosecution witnesses Mr. Bose took pains to draw our attention to two general characteristics appearing in the recorded evidence One is what h' characterises as letting in of certain statements of some of the witnesses recorded by police under Section 161 Cr. P.C. during investigation by the lack of care and attention to the precise language and particular part of such statement, when the defence counsel was endeavouring to put some other part expressed in some other language by way of contradiction. That characteristic no doubt appears and is heightened by the feature that care was not taken either to mark out the particular portions in the statement recorded under Section 161 Cr. P. C. to which the attention of the witnesses concerned was drawn, nor any such portion was particularised when it was sought to be proved through the Investigating Police Officer during cross-examination. The result has been complete disregard of the prohibition contained in Sec. 162 Cr.P.C, and also of the essential necessity of compliance with Section 145 of the Evidence Act. By such lack of care some prejudicial matters have found its way in the record of evidence, though strictly they were inadmissible. The other characteristic pointed out by Mr. Bose is some hazardous questions put by the learned defence Counsel to some of the witnesses elicited answers which have the look of very prejudicial materials against the accused, including certain suggestions which the learned Judge in his charge to the Jurv thought ftt to characterise as 'vain suggestions' whichshould 'be treated with contempt' or 'too bold or fantastic'. These 'r' characteriilici which undoubtedly need be remembered by us when considering the evidence as a whole to assess their value and reliability for deciding whether or not any real prejudice has been caused to the accused or the accused was so handicapped for want of proper legal aid so much so that the proceedings against him may be said to be a negation of a fair trial sufficient to require use of the power of this Appeal Court to interfere with the conviction and sentence. The fact that there was a lawyer engaged by the State to defend the accused at the trial does not relieve the appellate Court of its duty to examine if there was real prejudice to accused.
23. The prosecution case that we have summarised in the early part of this judgment has been sought to be proved mainly by the six witnesses for prosecution who claim to be the eye-witnesses to the occurrence. They are P.W. 3 Kalipada Ghoshal in front of whose tea-shop the incident is alleged to have occurred. P.W 4 Murari Mohan Ghose who was present near the place of incident but on the other side of the road and the four cartmen examined in the case, that is, P W. 6 Ganesh Singh, P.W. 7 Masudan Singh, P.W 10 Mohanlal Chaudhuri and P.W. 12 Parma-nand Mahato. The other witnesses of importance are P.W 8 Bejoy Chakrabarti who is a witness on the point of recovery of knife from a place alleged to have been shown by the accused soon after his arrest, P.W 13 Dr. Kalipada Bose who held the post-mortem examination on the cadaver and proved the injuries that were found on the deadbody of Raghunath and P. W. 15 Biswanath Chow-dhury the Presidency Magistrate who held the Test Identification Parade.
24. First point of controversy on fart raised by Mr. Bose is with regard to the time of the occurrence It was the prosecution case that the occurrence of stabbing took place nearabout 2.30 P.M. and information of it was given to the thana within ten minutes at 2.40 P.M when the Genera] Diary Entry No. 1490 dated 12-9-68 of the Shyampukur police station (Ext. 3) was made by Sub-Inspector Ashutosh Pal who was examined as P.W 25. The four cartmen --witnesses have given clear evidence that they had taken the load into their carts at Cosslpore godown and started from that place at about 11.30 A.M. and they reached the place in front of the shop of P.W 3 Kalipada Ghoshal at about 1.30 P.M. Both Kalipada Ghoshal, P.W 3 and Murari Mohan Ghose. P.W 4 have supported that version about time, obviouslv. though the time mentioned by each one of those witnesses were by guess and not by reference to any clock or watch. It is in evidence of P.W. 6 Ganesb Singh that soon after he saw the stabbing and fall of Raghubtr, as a result thereof, he went to Shyampukur Police Station and gave an information there which was recorded by a police officer. He has prov-ed his signature in the General Diary Entry No. 1490 which entry Itself has been proved by P.W 25. Ashutosh Pal as Ext. 8 In the case. It bears the time 2.40 P.M. It is the testimony of that police officer. P.W. 28 that immediately after recording the information he went to the place with available force and found Raghubir Singh lying on his face on the road in a pool of blood. It has been elicited in cross-examination of those witnesses that at that time he was not dead -- he was groaning. That feature of fact clearly shows that the police had received the information not long after the actual stabbing. It has been suggested on behalf of the defence that the stabbing had occurred soon after mid-day that is some time between 12 and 12.30 P.M. but information was not given to the police-station to ensure that Raghunath should die before the police arrived, so that he cannot name his assailant. There is no material in the whole of evidence either in the depositinn-in-chief or in cross-examination of any wit-ness that would lend support to that contention for the accused.
25. Another controversy urged by Mr, Bose is the nature of Incident of soap-lifting and quarrel that preceded the incident of stabbing Prosecution version in that part of the case is that when the cartmen felt tired in the strong sun of autumn and stopped their carts in front of tea-shop of P.W 3 Kalipada Ghoshal to take rest and also have some drinks of water and tea, it was noticed that the accused Panchu Gopal had lifted some soap-bars from one of the carts. Raghunath who was one of the cartmen rushed to resis! Panchu Gopal and a quarrel ensued in course of which Raghunath snatched away one bar of soap that was in the hand of Panchu Gopal at that time After that quarrel Panchu Gopal entered into the Lane that passes by the Side of the Premises No. 55A, Girish Ghose Avenue which was then in the process of construction and came back carrying a knife in his hand and stabbed Raghunath in the hack causing the injury that caused his death. Mr. Bose has drawn our attention to certain contradictions sought to be proved for showing that some of the cart-men - witnesses have stated to the police during investigation that Panchu Gopal had asked for some soap from another cart of Bharat Singh and when that was denied, there was quarrel, in course of which Raghubir was stabbed By referring to this statement recorded under Section 161 Cr P.C Mr. Bose contended that there were two important contradictions with the depositions in court. First is that soap was asked for and not surreptitiously pilfered The second is that stabbing was in course of the quarrel and there is no mention in the statement recorded under Section 181 Cr.P.C that Panchu Gopal had gone into the Lane to 'come back with the knife in his hand We have devoted our anxious consideration to this contention of Mr. Bose but we cannot accept either of his contentions. On the question whether ornot soap was asked tor, Hindi Language in which statemenl under Section 161 Cr.P C. was recorded connotes that Panchu Gopal wanted to take some soaps from Bharat Singh's cart - not that he had requested to be given one. Unfortunately questions were asked by translating Hindi language into Eng-lish and record of the answers have gone into the record in English language which no doubt tends to support Mr. Bose's argument. We are clearly of the view that the statement under Section 161 Cr.P.C. which was in Hindi language is not at all a contradiction on the point. With regard to the second aspect about omission to mention the journey into the lane and coming back with the knife in hand, it is no more than an omission which does not in our view ripen into contradiction because that omission docs not make the prosecution story in this part any different in the true import of the two versions and those two versions may very well co-exist as tame narrative differing only in some details as has been explained by their Lordships of the Supreme 'Court in Tahsildar Singh's rase reported in : 1959CriLJ1231 . Tahsildar Singh v. State of U.P We may also mention that Mr. Bose argued that prosecution rendering of the story that there was a quarrel, at the first stage hut the stabbing did not occur during that quarrel, it occurred after Panchu Gopal had come back from the Lane but at that stage there was no quarrel at all, should not be accepted as true. He urged that true version could either be that the stabbing took place during the initial quarrel itself and there was no journey by Panchu Gopal into the Lane at all or if there was such a journey, then even at that later stage there was a quarrel in course of which due to some sort of provocation the knife was used on the back of Raghu-nath. We do not find anything in the evidence in support of that alternative theorv of Mr. Bose On the contrary evidence of six witnesses named above has impressed us as true version although due to the difference in position and consequent difference in angle of vision and also difference in the degree of sltention and power of perspection of those several witnesses, there appears slight difference in the rendering of the storv as given by each particular witness That difference far from being a discrepancy appears to us to be natural divergences that have occurred because each witness has given true version according to his own understanding of the events We have no hesitation, therefore, in holding that implication of Panchu Gopal by each of the witnesses in the ad of slab bing on the back of Raghunath has been proved beyond reasonable doubt. The Jury accepted that version unanimously and we hold that view of fact clearly proved by the evidence in the case.
26. A point was sought to be made by Mr. Bose that the storv of stabbing on the back of Raghunath cannot be true because the injury on Raghunath's left palm indicatesthat the attack was from hit front, in Course of which the cut injury on the palm was received. This point was placed before us for inviting us to hold that the suggestion made in the trial by the defence counsel that there were two persons, one attacking from front when the other stabbed him from the back is not only a possible suggestion but it is also probable upon the evidence of Medical Experts. P.W. 13 Dr. Kalipada Bose and P.W 20 Dr. Sudhendu Kumar Roy. We have already noticed that this theory of the defence was sought to be met by prosecution by examining the Medical Expert. P W 20 Dr. Sudhendu Kr. Roy Mr. Bose has urged for rejection of the opinion given by Dr. Roy, P.W 20. The manner in which that expert witness was examined without any previous notice to Defence Counsel to enable him to test the opinion given by the witness instantly in the witness box as also the patent improbability of the posture suggested, leads us to reject the opinion in support of the theory to establish which prosecution examined Dr. Roy. we prefer to accept the opinion of PW 13 Dr Bose that injury on the left palm of Raghubir could be caused by any sharp material on the road with which its palm came in contact when he fell on being stabbed. According to the prosecution version Panchu Gopal was arrested on 29th September. 1963. on Cornwallis Street after a chase on being first seen on Girish Ghose Avenue. That arrest was effected soon after 3 P.M. on 29th September, 1963 by P.W 19 Dhirendra Nath Chakrabortv who was at the time a Sub-Inspector of Police attached to Shyampukur Police-station. That witness has deposed that after arrest the accused made a statement and on being led by the accused the Police Officer went to a Lane in Bose Para where the weapon was recovered from a hydrant with the help of two sweeper boys. The witnesses. P.W. 19 has described the weapon as a 'spearhead' (q. 14) and he has given oral testimony that 'the accused said this is the spear head' and he also said that 'I dropped the knife in that manhole' (Qs. 14 and 20). Bose has pointed out that no written record of any statement of the accused to that effect has been proved by prosecution nor have the two sweeper boys been examined in the case The testimony of P.W 19 has been supported by P W 8 Bejoy Chakrabarty who is a conductor under the State Transport. He is the witness to recovery of the knife from the hydrant or manhole, and he has described the weapon as 'a dagger which looked like a Ball am' (Q. 3) He has also testified that 'the accused told the Police Inspector that he had put the dagger inside that hydrant'(Q. G). It was suggested to this witness on behalf of the defence that the police officer was known to him from before and so he look him there but the witness denied that suggestion. The learned defence counsel then asked two questions which are reproduced below with their answers.
'Q 31. And all tht time the accused did not say anything at all. In our pretence the accused said that he had dropped that dagger inside that bydrant.
Q. 32. First of all the dagger was brought out from the manhole. Before that the accused did not make any statement. That is not so.'
In that state of evidence Mr. Bose argued that evidence which could be admissible under Section 27 of the Evidence Act should properly have been by proof of the record of the statement made in writing under Section 161 Cr.P.C. But the prosecution has not led any evidence that any record was made of the statement attributed to the accused. He also contended that if on such important point no written record was made, the Court should not have allowed oral evidence about it to come in under Section 27 of the Evidence Act. We agree with Mr. Bose that. It is only proper for prosecution if they went to adduce evidence under Section 27 of the Evidence Act, which is an exception to the bar enjoined by Section 25 of that Act, to prove by production of written record only so much of the statement as led to the discovery of the article. The oral statement of witnesses with out corroboration by any written record of any such statement contemporaneously made, even if admissible, is unsafe to rely on. because of the very nature of the evidence We think it proper therefore to leave out of consideration the evidence about the statement made by the accused in that respect. What remains as evidence on the point of recovery of the knife is the evidence about the event that the accused soon after his arrest led the police to a place and on his showing a particular place a weapon was recovered. The witness on this point, that is P. W 9 D N Chakraborty was competent to give oral testimony of that event and he has been substantially corroborated by the other witness. P W. 8 Bejoy Chakraborty The weapon is material exhibit IV and evidence is available by the report of the Chemical Examiner, Ex. 7 that the knife bore marks of blood, though the Serologist has been unable to give any opinion about the source of that blood due to disintegration and. therefore, there is no evidence that it was human blood Evidence is available by the testimony of P.W.21. Ratan Swarnakar that about four months prior to the date of occurrence he made the handle of this knife, Ex. IV that was brought to him by accused Panchu Gopal whom he knew because he used to stay in that locality where that witness was working at 1/1. Raja Para Lane, From this evidence without taking into consideration evidence about any statement made by the accused which could be admis-.ible under Section 27 of the Evidence Act. it Is quite safe and reasonable to hold, as the Jury have found to arrive at their verdict that the knife belonged to the accused and after the stabbing incident he had shown the hydrant in Bose Pant Lane whorefroni it was recovered within a few minules of his arrest on29th September, 1063, that is, about 17 days after the incident. All the material witnesses who had seen the knife at the time it was used for stabbing have identified Ext IV as that knife The totality of the evidence, therefore is clear and sufficient for holding that it was Panchu Gopal Das alias Panchu who slabbed Raghubir at the time, in the manner and at the place alleged by prosecution The injury caused by such stab has been described by Dr Kalipada Bose. P.W 13 which shows that it was an injurv which in the ordinary course of nature was likelv to cause, and had in fact caused, the death of Raghubir The gravity of the wound and the internal injuries quite clearly show that it was not only an intentional act but also a determined blow with the intention to cause the death of the victim
27. Mr. Bose has also argued that it is quite probable that there was provocation during the quarrel by use of some language that impelled Panchu Gopal to inflict the injury. There is no material in evidence, not even a suggestion of any such provocation, far less of any grave and sudden provocation that could be pleaded for minimising the offence to one under Section 304 of the Indian Penal Code, as Mr. Bose tried to induce us to hold. On the contrary the defence pleaded during cross-examination of the prosecution witnesses and In the statement of the accused when examined under Section 342 Cr P C both in the Magistrate's court and in the trial in the Sessions Court that be was not present al the place at the time of the stabbing incident. That defence has remained mere suggestion without any material at all in its support. All the witnesses who were taken to the Test Identification Parade held by the Magistrate. P W 15 Biswanath Chowdhury identified correctly Panchu Gopal as the person who had stabbed Raghubir Those witnesses had the opportunity to see Panchu Gopal before the incident during the quarrel over lifting soap from the cart for sufficiently long time to enable each of them to correctly identify the accused. We have, however, to observe that Test Identifica-tion Parade instead of being held within the Jail precincts was held in a room in the Police Courl at Bankshall Street of the City. That has, not unnaturally attracled suggestion on behalf of the defence that the witnesses had the opportunity to see the accused before the Parade was held. That suggestion has been denied. If has been elicited in cross-examination of the Magistrate P W 15 Biswanath Chowdhury that the witnesses were kept in a room adjacent to the room of Copying Section and that room was not visible from the Magistrate's Court room where the Test Identification parade was held and the accused was produced before the Magistrate from the court-custody room in Bankshall court, where the accused persons are kept From those materials it does not appear al all probable that the witnesses had any opportunity of seeing the accused person before the Parade was held by the Magistrate in the case. Yet we cannot leave this case without observing that suchTest Identification Parades are persistently held in the Police Court's precinct despite disapproval of it by this Court in several previous cases. Value of evidence obtained by Test Identification Parade as corroborative evidence of identification in court is very great indeed. But that is so only when Test Identification Parades are held in the manner and under conditions which preclude even faint possibility of collusion or machination during investigation If such persistent violations of reasonably guarantees against any collusion are indulged in, it may no! be possible for this Court to accept the assertion made by the Magistrate holding such Parades in the testimony about his satisfaction that identification as conducted under conditions precluding possibility of collusion, though in the present case we feel safe to accept that evidence of P. W 15 Biswanath Chowdhury on that point.
28. We may also mention that the arguments advanced by Mr. Bose to point out the omission to examine several other cartmen who were present at the place of occurrence and also omission of having the bar of soap being examined by Chemical Examiner do not appear to be of any consequence in the present case, because such omission has not resulted in withholding material evidence that could have any bearing on the acceptability of the evidence produced in court, far less by such omission can arise any adverse presumption against the prosecution version.
29. In the result we uphold the conviction of the appellant Panchu Gopal Das alias Panchu under Section 302 of the Indian Penal Code. He has been given the lesser sentence of imprisonment for life though there does not appear any extenuating circumstances except his young age of 21 years. We affirm that sentence also and dismiss the appeal
30. I agree.