'Absence of effective legal aid to affect fundamental right of accused': SC acquits man accused of rape and murder of 10-year-old girl

The apex court also added that if legal aid is provided only for the sake of providing it, it will serve no purpose.

New Delhi: In an important judgment, the Supreme Court on Monday said if effective legal aid is not made available to an accused, unable to engage an advocate, it will amount to infringement of his fundamental rights guaranteed by Article 21 of the Constitution.

The top court here acquitted a man accused of rape and murder of a 10-year-old girl in 2009, after noting several irregularities including lack of effective legal representation during the trial, observing imposing capital punishment in such a case shocks the conscience of this court.

"After having perused the record of the case, we found a very disturbing feature. It is about the failure of the State to provide timely legal aid to the appellant. The other issue is about the quality of legal aid. Apart from provisions of Article 21 and Article 39A of the Constitution, the law on the issue of the right to legal aid has been evolved by this Court through its landmark decisions," a bench of Justices Abhay S Oka, Ahsanuddin Amanullah and Augustine George Masih said.

The court emphasised 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," the bench said.

Dealing with the appeal by Ashok whose death penalty commuted by the Allahabad High Court to life term, the court noted the evidence of more than one prosecution witness was recorded in the absence of the legal aid advocate. At the stage of framing the charge, he was not represented by an advocate.  

"We are surprised to note that the examination-in-chief of the PW 1 (father of the girl) was allowed to be recorded without giving legal aid counsel...(in such a case) a very valuable right of objecting to the questions asked in examination-in-chief is taken away. The accused is also deprived of the right to object to leading questions," the bench said.

In the case, the prosecution relied upon evidence of the victim's seven-year-old who allegedly saw the girl being forcibly taken to the tubewell where the offence was committed.

The court, however, held this witness cannot be held to be of sterling quality, saying it is unsafe to base conviction only on his testimony. Even otherwise, taking his testimony as correct, his evidence can, at the highest, be the evidence of last seen together, it said.

The bench also rejected the recovery of the victim’s slipper and underwear allegedly at the appellant's instance, holding the appellant's guilt beyond reasonable doubt has not been established.

In statement recorded under Section 313 of the CrPC, the bench noted the contents of the incriminating documents were not put to the appellant.

"In a given case, the witnesses may have deposed in a language not known to the accused. In such a case, if the material circumstances appearing in evidence are not put to the accused and explained to the accused, in a language understood by him, it will cause prejudice to the accused," the bench said.

The court pointed out the date of occurrence is of May 27, 2009. After such a long gap, it will be unjust if the appellant is now told to explain the circumstances and material specifically appearing against him in the evidence. 

"Moreover, the appellant had been incarcerated for about 12 years and nine months before he was released on bail. Therefore, considering the long passage of time, there is no option but to hold that the defect cannot be cured at this stage," the bench said.

Even assuming that the evidence of victim's cousin can be believed, the appellant is entitled to acquittal on the ground of the failure to put incriminating material to him in his examination under Section 313 of the CrPC, the bench said. 

"We are surprised to note that both the Trial Court and High Court have overlooked non compliance with the requirements of Section 313 of the CrPC. Shockingly, the Trial Court imposed the death penalty in a case which ought to have resulted in acquittal," the bench said.

Highlighting the role of public prosecutor, the bench said the officer has to play an active role in ensuring that every trial is conducted in a fair manner and in accordance with the law.