Over 16 years after being jailed for kidnapping and raping his neighbour, a man is all set to undergo de novo trial as the Delhi High Court found that he was never represented by a lawyer in the first instance.
Justice Mukta Gupta directed that the convict, Sushil (name changed), be released on furnishing a personal bond having already spent four years in jail before his sentence was suspended for hearing on the instant appeal.
“The matter is remanded back to the trial court for fresh trial which would be completed as expeditiously as possible,” said the court.
‘Serious offences’
Justice Gupta relied on a judgment delivered by a three-judge Bench of the Supreme Court, which had held that since the offences with which the accused had been charged were of a serious nature, the prosecution had to be taken to its logical conclusion and “the retrial of the appellant in the facts and circumstances is indispensable”.
In the instant case, it was during the hearing on Sushil's appeal against his conviction that the high court's attention was drawn to the fact that he did not have an advocate even at the basic stage of framing of charges.
The case was filed over a complaint lodged by an Ambedkar Nagar resident on March 12, 1998.
The complainant told the police that his daughter was missing and that he suspected his neighbour Sushil had enticed her.
On March 27, 1998, the police recovered the girl from Anand Vihar bus stand and arrested Sushil.
On the basis of the girl’s statement, charges of kidnapping and rape were framed against him.
Sushil was convicted two years later.
During the hearing on his appeal, the high court noticed that he was never represented by an advocate.
Advocate not present
The record sheet of proceedings before the trial court revealed that Sushil’s advocate entered appearance when charges had already been framed. During the recording of the statement of the girl and examination of witnesses, the advocate was not present.
Thereafter, no counsel appeared for Sushil and he was never informed about his right to legal aid. Examination-in-chief of the witnesses was recorded and no cross-examination was conducted as he had no counsel.
“In the present case, though the appellant [Sushil] was duly represented by the lawyer, however, the lawyer didn't appear in the midst of trial as a result of which the prosecution witnesses could not be cross examined. It was the duty of the learned Additional Sessions Judge to inform the appellant about his right to legal aid which is enshrined within the mandate of Article 21 of the Constitution of India. The duty of the Court does not end by offering of a lawyer, the accused should be informed about the consequences and danger of waiver,” the high court said.
Help refused
“The present case is not one where the appellant was offered a counsel at State expense which he refused. The appellant was not informed about his right of legal aid and without providing legal aid, the opportunity to cross examine the prosecution witnesses was closed. Since the appellant was not represented by a lawyer, he could not even file an application to recall the witnesses whose cross-examination in the least was essential,” Justice Gupta added.
