JAGDISH MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) The sole appellant has been convicted under Sec. 302, Penal Code and sentenced to undergo rigorous imprisonment for life. He has further been found guilty under Sec. 324 Penal Code and sentenced to undergo rigorous imprisonment for three years, with a direction that both the sentences shall run concurrently, by the judgment dated 11th Sept., 1986, passed by the Second Additional Sessions Judge, Giridih in S.T. No. 19/77.

(2.) Mr. A.N. Deo, learned counsel for the appellant raised a preliminary objection that in this case the appellant was not properly defended and in fact no lawyer had turned up to cross-examine the two eye witnesses, namely P.Ws. 8 and 9, whose evidences have also been relied upon by the trial court in coming to the conclusion and convicting the appellant. The judgment of the Court below itself, in paragraph 5, shows that it was indeed regrettable that the first lawyer, Mr. P.P. Singh, who was defending the appellant had not discharged his duties satisfactorily and ultimately he withdrew from the defence side and, therefore, the Court appointed Mr. Sukhdeo Bhaskar, Advocate, who also failed to perform his professional and legal duty to defend the case properly to the best of his ability and did not turn up to cross-examine the aforesaid two witnesses. Ultimately a prayer was made to recall those two eye-witnesses for cross-examination but the Court refused the prayer.

(3.) From the aforesaid narration of the facts without any hesitation, it can be concluded that it is a case in which the accused-appellant was not properly defended and his statutory right to be defended by an advocate/counsel of his choice has been violated in this case. Liberty of a citizen cannot be deprived of without affording him a proper opportunity and legal assistance to defend himself. When Mr. Bhaskar was not properly defending the accused-appellant, it was a duty cast upon the Court to appoint some other lawyer or advocate to defend the appellant, who was facing such a serious charge of committing double murder and causing serious injuries to one of the witnesses, namely, P.W. 7, who was the informant of the case. The effect of the fact that the appellant was not properly defended as required under the law, has resulted in deprivation of his fundamental rights to be defended by an advocate/counsel of his own choice and in these circumstances, we are constrained to hold that in the interest of justice and fair play, it would be desirable to order for retrial of the accused appellant. Although the occurrence had taken place in the year 1975, but the delay is one aspect and providing a counsel of the choice of the accused to defend him is a fundamental right which cannot be taken away. No doubt, the delay may cause some harassment to the appellant, but in the circumstances, when he was not properly defendant, we have no option but to direct the trial court to appoint a counsel of his own choice to defend him, so that the grievance raised at this stage, may not be raised in future.