SUDHAKAR TIWARI Vs. STATE

JUDGEMENT

(1.) The present appeal is filed against the judgment and order dated 10.01.2010 whereby the appellant was convicted for the offence punishable under Section 302 IPC and sentenced to undergo life imprisonment. The prosecution case was that on 27.5.2007 at about 9.00 PM, the accused murdered his brother Inder Tiwari by strangulating him in flat bearing No. 150, Pocket 10, DDA Flats, Nasirpur, New Delhi. The prosecution during the course of trial had relied on the testimony of 19 witnesses. The principal witnesses who deposed and whose testimony persuaded the Trial Court to record conviction were PWs 2 and 5, the latter i.e. PW-5 was the most material of witnesses as she claimed to have seen the incident. According to her, the appellant used to be a habitual drunkard and frequently consumed intoxicating substances. PW-5 deposed that on the day (of her husband s murder) the appellant had harassed her husband and he (her husband) had been trying to pacify him. The witness further deposed that incident occurred in the late evening at about 9.00 PM after the family had dinner when the deceased started to pacify the appellant who remained adamant. The deceased slapped the appellant, apparently both of them got entangled and despite PW-5 s best efforts, she was unable to separate them. The appellant then allegedly strangulated the deceased.

(2.) This Court does not propose to consider the merits of the appeal in detail. One of the main submissions made on behalf of the appellant was that he was denied the benefit of legal counsel, which resulted in miscarriage of justice. Learned counsel in this regard relied upon the order sheets in the trial court. She emphasised that after 24.04.2009, on which date appellant s counsel was present, there was no one to assist him on 29.05.2009. On that date the appellant was unrepresented despite that the trial court proceeded to record the testimony of several material witnesses. Similarly on the next date of hearing i.e. 22.08.2009, when the appellant was again unrepresented, further prosecution witnesses were examined. It was only on 12.10.2009 that the Court deemed it appropriate to appoint amicus to assist the appellant. The said amicus who argued the matter, did not discharge his duties properly. In this regard reliance was placed upon the testimonies of various witnesses including PW-10, PW-11, PW-12 (I.O.) and PW-13. Counsel submitted that none of these witnesses was even cross-examined. Apparently the application on behalf of the appellant to recall PW-5 for cross-examination was made. She could not be found; as was evident from the order of 26.06.2010, therefore there was no cross-examination.

(3.) It was argued that the denial of effective legal representation amounted to denial of a fair trial and therefore infringed Article 21 of the Constitution. Counsel submitted that apart from other facts which could not have been elicited from the witnesses, the appellant was also denied a proper counsel who could have pointed to the Court (even according to the testimony of the prosecution witnesses, notably PW-2) that he (the appellant) was a psychiatric patient and had suffered on account of some mental disorder. Had the appellant been given effective representation, this aspect could have been suitably highlighted.