MOHD. MIRAZ MUNNA Vs. STATE (NCT OF DELHI)

JUDGEMENT

(1.) A person accused of an offence, which involves life imprisonment or jeoparding his personal liberty, has a fundamental right of free legal assistance at State expense. This fundamental right is implicit in the requirement of reasonable, fair and just procedure prescribed by Art. 21 of the Constitution of India. The exercise of this fundamental right is not conditional upon the accused applying for free legal assistance so that if he does not make an application for free legal assistance the trial may lawfully proceed without adequate legal representation being afforded to him. On the other hand the magistrate or the Sessions Judge before whom the accused appears is under an obligation to informing the accused that if he is unable to engage the services of a lawyer on account of poverty or indigence, he is entitled to obtain free legal services at the cost of the State. The conviction reached without inform the accused that they were entitled to obtain free legal assistance which resulted in the accused remaining unrepresented by a lawyer in the Court is clearly a violation of the fundamental right of the accused under Art. 21 and the trial must be held to be vitiated on account of a fatal constitutional infirmity. It is so said by the Apex Court in the case of Suk Das and another Vs. Union Territory of Arunachal Pradesh, reported in AIR 1986 Supreme Court 991 .

(2.) Keeping the above principle of law in view, we have to appreciate the preliminary objection raised by Mr. P.K. Sharma, the Amicus Curiae for the appellant. Thrice Amicus Curiae was appointed but record is silent as to whether the said counsel conducted the case for the appellant. It is in this backdrop we have to see whether appeal of the appellant Mohd. Miraz on this reason can be accepted.

(3.) Facts of the case are that Mohd. Miraz appellant herein was married and had eight children. The eldest amongst them was Km. Sabana. He had differences with his wife, who had left his house and gone to her mother along with four children. Km. Sabana, her brother and sisters remained with the appellant. Km. Sabana was 16 years old at that time. Allegation of the prosecution was that on the night of 22nd Dec., 1990 her father the appellant herein tried to harass her. He pulled her hair as well as legs and tried to catch hold of her. In the morning when landlord's brother came and enquired from the appellant as to why Km. Sabana was weeping, appellant told him that she was remembering her mother. Again on the night of 23rd Dec., 1990 this appellant over-powered her and threatened that he would strangulate her brother and sister if she did not agree to his lust. He would forcibly do the act against her wishes. On the night of 23rd Dec., 1990 at about 10.00 P.M. or 10.30 P.M. while she was watching TV Serial with her brother and sister accused gave her tablet to eat as she was feeling "Hichki". After eating that tablet she became drowsy and slept. It was at that time the appellant caught hold of her hand and pulled her towards one side and made her sleep with him. When her younger sister got up and cried this appellant slept (slapped ?) her and made her to sleep. Km. Sabana was wearing Salwar-suit. He united the "Nara" of her Salwar and when she tried to cry he put his hand on her mouth. He raped her twice on that date, one (once ?) at night and other time in the small hour of the morning.