BHAIJIBHAI MADHABHAI BHOI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) . [His Lordships after stating the facts of the case, further observed :]

(2.) . We will first consider as to whether any prejudice is caused to the appellant - accused No. 1 by engaging common Advocate for all the accused and if yes, what is the effect on the trial ? We are of the opinion that it is not the concern of any Court either to direct or to suggest directly or indirectly that engagement of a common Advocate for all accused in the facts and circumstances of a particular case is not proper and is likely to cause prejudice to their defence. It is the domain of the accused as to whom they should engage and whether they should engage common Advocate for all the accused or separate one. It will not be proper on the part of the Court to suggest anything as to the engagement of an Advocate. By engagement of common Advocate for all the accused, assuming that any prejudice is caused, then that prejudice is neither caused by any procedural defect nor by any act of the prosecution nor by the conduct of the trial by the Court. Therefore, even if any prejudice is caused as we will show that no prejudice is caused considering the defence, then also the argument cannot be considered in the instance case. It was not known as to what was the defence when the trial began. It was also not known as to how and what will be the evidence before the Court. It can only be presumed that case of the prosecution will be as per the chargesheet.

(3.) . The prejudice alleged to have been caused by engaging common Advocate is with respect to giving up the case that accused Nos. 4 to 7 have also assaulted the deceased with sticks. In the evidence lead by prosecution there is no reference of accused Nos. 2 to 7 though according to the learned Counsel for the appellant they are alleged to have assaulted the deceased as per the police papers and the charge framed therefrom. It will not be improper to state at this juncture that the learned Advocate, without involving accused Nos. 2 to 7 and without damaging their defence could have brought the fact that the case before police was that deceased was also assaulted by accused. This fact could be brought by making such suggestion either in the evidence of investigating officer or the other witnesses. It could have been suggested in their cross-examination that in the course of investigation it also revealed that accused Nos. 2 to 7 also have assaulted the deceased. Such a suggestion if made would not amount to an admission on the part of the defence Advocate so as to prejudice the case of accused Nos. 2 to 7. Thus, if something could not be brought on record, though it could have been, it cannot be said that it prejudiced the case of one of the accused. It will be proper to say that it is lack of art to cross-examine the witnesses. Advocate engaged was the best person to take care of his clients. It is also not known that the Advocate engnged was senior or junior. Every Advocate is presumed to be competent to conduct the trial or legal proceedings for which he is engaged. Thus, in our opinion, there is no substance in the contention of Mr. Vakil that the case of accused No. 1 is prejudiced because of engagement of common Advocate for all the accused and/or by not bringing the fact of the prosecution case of assault by accused Nos. 2 to 7 on the deceased as it transpires from the charge.