IN THE HIGH COURT OF UTTARAKHAND AT NAINITALCriminal Jail Appeal No. 01 of 2014

Appellant (in Jail) Versus State of Uttarakhand ….

Respondent Present: Mr. Shakti Singh, Amicus Curiae, for the appellant.

Ms. Mamta Joshi, Brief Holder for the State.

April 6, 2018

Hon’ble Sudhanshu Dhulia, J. (Oral)

This is a jail appeal of the appellant preferred against the judgment and order dated 14.2.2013, passed by the Sessions Judge, Udham Singh Nagar in Sessions Trial No. 318/2011, who has convicted the appellant under Sections 323, 376 and 506 IPC and sentenced him to undergo rigorous imprisonment for ten years and a fine of rupees ten thousand for the offence under Section 376 IPC, rigorous imprisonment for two years for the offence under Section 506 IPC and rigorous imprisonment for one year for the offence under Section 323 IPC. In default of payment of fine, convict appellant has been directed to undergo simple imprisonment for one year. All the sentences have been directed to run concurrently. 2. The incident is of 30.09.2011 at 3 PM in the afternoon, when, as per the case of the prosecution, victim/prosecutrix, who was allegedly 14 years of age, was alone in her house in village Kharakpur Devipura. The appellant, who also resides in the same village and does part time electrical work, entered the house of the prosecutrix on the pretext that he has been asked by her 2 father to do electrical repairs in her house. As the prosecutrix was alone in the house, the accused caught hold of her and raped her. Accused/appellant also threatened the prosecutrix of dire consequences in case she reports the matter to anyone. Father of the prosecutrix is a rickshaw puller who as usual on the date of incident, had gone out for the work in the nearby town of “Kashipur”, and the mother of the prosecutrix was also away collecting fodder for their cattle. 3. The FIR though is not prompt as the incident was reported after three days on 03.10.2011 at 04:15 PM at Police Station Kashipur. The appellant/accused was promptly arrested on the next day on 04.10.2011. The prosecutrix was medically examined at 9 PM on 03.10.2011 by a lady doctor PW5 Dr. Archna Chauhan at L.D. Bhatt Government Hospital, Kashipur. In the medical examination, the hymen of the prosecutrix was found torn and healed. There was no bleeding or any mark of any kind of bleeding nor were there any external or internal injury on the body of the prosecutrix. X-ray was prescribed in order to determine the age of the prosecutrix. X-ray was conducted and as per the medical opinion, her age is “around 16 years”. Prosecution, however, throughout maintained that the girl was 14 years of age, as that is what has been reported in the First Information Report. 4. The police after investigation submitted chargesheet on 9.11.2011. On 8.12.2011, the case was committed to Sessions Judge for trial. Sessions Judge framed the charges against the accused on 21.12.2011 for 3 the offences punishable under Sections 323, 376 and 506 IPC. The accused denied the charges and claimed trial. 5. The prosecution, in order to establish its case, examined as many as six witnesses. No defence witness was examined by the accused. As a matter of fact the accused throughout the trial remained unrepresented by a counsel. We shall revert to this aspect, in a while. 6. The main prosecution witness is the prosecutrix herself. Prosecutrix was earlier produced before the learned Magistrate and her statement under Section 164 CrPC was recorded where she has said that at 02:30 PM on 30.09.2011 she was alone in her house. The appellant entered in her house, caught hold of her and sexually abused her. In her examination-in-chief, recorded on 07.07.2012, she has reiterated her case as stated by her in her statement under Section 164 CrPC, and here she categorically states that she has been raped by the accused. 7. The accused was not represented by a counsel, nor was any legal assistance provided to him by the court. He had himself cross-examined the prosecutrix. However, only two questions were put to the prosecutrix, the first was whether it was her father who had asked him to go to her house to make the electrical repair and second whether her elder sister “Lata” had eloped with a boy in the past. The reply of the prosecturix was in the negative for both questions. There is no further cross examination of the prosecutrix. 4 8. PW2 Rishipal is father of the prosecutrix, who reiterates the story of prosecution and says that when he returned from work on that fateful day at about 07:00 PM, his daughter narrated the entire incident to him. He immediately went to the house of the accused but the accused and his family members refused to listen, rather he was physically thrown out of their house. The report was lodged by this witness after three days of the incident, i.e. at 4.15 PM on 3.10.2011. 9. There is no reasonable explanation for lodging the FIR after a delay of three days. The reason given for the delay in lodging the report was that since it was a delicate matter, it could only be reported after three days. This witness PW2 was not cross-examined on any aspect. The reasons are the same, as already stated above, the accused was not represented by any counsel during the trial. 10. PW3 Smt. Kanti is the mother of the victim. She again reiterates the story of prosecution and says that when she returned at 04:00 PM, the incident was reported to her by her daughter. Again, this witness has not been cross-examined. Although the order sheet says that the opportunity was given to the defence, but as already mentioned, the defence was without a counsel. 11. PW4 Dayal Arya is the Constable Clerk who recorded the Chick First Information Report. He is a formal witness. 5 12. PW5 Dr. Archna Chauhan was on duty on 03.10.2011 at L.D. Bhatt Government Hospital, Kashipur and this witness medically examined the prosecutrix on that day at 9 PM. In her examination-in-chief she says that the age of the girl is 14 years. Again, this witness has not been cross-examined by the defence. Despite the fact that when there was a clear evidence before the court itself in the form of the radiological report, according to which the age of the prosecutrix was around 16 years, no question was put by the trial court to this witness on this extremely relevant aspect. In the opinion of this Court, when there was such a vital contradiction, question ought to have been put by the court, under exercise of its power under Section 165 of the Indian Evidence Act. Strangely, it has not been done. This witness again was not crossexamined. 13. PW6 is Sub-Inspector Arun Kumar who has done the investigation. This witness has reiterated the story of the prosecution. 14. The defendant/accused in his statement under Section 313 CrPC has denied all the evidence of the prosecution and submitted that the entire case is false and he has been falsely implicated. 15. Considering that there was a radiological report before the Trial Court which certified the age of the prosecutrix as “around 16 years”, there was no occasion for the court to hold that the prosecutrix was 14 years of age as this is merely a statement in the FIR, not proved by any document. Scientific evidence is in fact to the 6 contrary. Therefore, the court below clearly erred in its finding that the prosecutrix was 14 years of age. In my considered view, the real age of the prosecutrix ought to have been considered as 16 years. Once it is held that the prosecutrix is not under 16 tears of age, as it ought to have been done, the parameters for appreciation of evidence change. But the Trial Court throughout the trial went with the assumption that the age of the prosecutrix is 14 years. 16. Undoubtedly, before the trial court there was a clear and unambiguous statement of the prosecutrix, alleging rape, and this Court is also conscious of the fact that in a case of rape, conviction can be made on the sole testimony of the prosecutrix. All the same, in such a case, it also becomes an added responsibility of the court, to carefully examine the statement of this witness (prosecutrix) in the light of other available evidence, before pronouncing his verdict. I find that in this case the statement of this witness does not collaborate with the medical evidence at all. There are no injuries on the body of the prosecutrix. The clothes Salwar Exb. 1 and Sameej Exb. 2, worn by the prosecutrix at the time of incident which were handed over to the police on 03.10.2011 by the prosecutrix, were sent for forensic examination. The report of the Forensic Science Laboratory, Uttarakhand shows that semen was detected both on Exb. 1 and Exb. 2, though no blood was detected either on Exb. 1 or Exb. 2. No effort was made by the prosecution to collaborate this with the semen of the accused/appellant. 7 17. Learned counsel for the appellant Mr. Shakti Singh, who was appointed by this Court as the Counsel for the appellant, submits that in view of the fact that there was clear detection of semen on the clothes of the prosecutrix which are Exb. 1 and Exb. 2, the prosecution ought to have collaborated it with the semen of accused, which has not been done in the present case. Had the DNA profiling been done, that would have been a conclusive proof that the semen which was detected in the forensic report on the clothes of the prosecutrix is of the present accused. 18. In this case, the accused was arrested promptly on the next date of lodging the report and was medically examined on that very day, i.e. on 04.10.2011 at 01:35 PM in the same L.D. Bhatt Government Hospital, Kashipur, but his medical report was never made part of an Exhibit. The medical report though says that the condition of the person is stable. There is no external injury on his body. Patient is normal and medically fit. 19. The aforementioned medical examination itself is not as per the mandate of Section 53-A of CrPC inasmuch as the particulars of a person who is accused of rape shall be mentioned by the medical practitioner in the medical report. Not only the name, age and address of the accused and marks of injury (if any), on the person of the accused, but the description of the materials taken from the person of the accused for DNA profiling shall also be mentioned in the medical report. In other words, the DNA profiling is mandatory in such circumstances. Sub-section (5) of Section 53-A of CrPC provides that the registered 8 medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in Section 173 as part of the documents referred to in clause (a) of sub-section (5) of Section 173. 20. Section 53-A of CrPC reads as under: “53-A. Examination of person accused of rape by medical practitioner (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose. (2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely:-- (i) the name and address of the accused and of the person by whom he was brought, (ii) the age of the accused, 9 (iii) marks of injury, if any, on the person of the accused, (iv) the description of material taken from the person of the accused for DNA profiling, and, and (v) other material particulars in reasonable detail. (3) The report shall state precisely the reasons for each conclusion arrived at. (4) The exact time of commencement and completion of the examination shall also be noted in the report. (5) The registered medical practitioner shall, without delay, forward the report of the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.” 21. Hon’ble Apex Court in the case of Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171, while reiterating the settled principle that in case of rape, conviction can be based on the sole testimony sounds a precaution that in all cases the prosecution has to prove its case beyond the reasonable doubt and merely because a conviction can be made on the sole testimony of the victim does not mean that the scales of evidence are lowered in any manner. Hon’ble Apex Court in paragraphs 29 and 30 has held as under: “29. However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and other witness have 10 falsely implicated the accused. The prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. 30. The prosecution has to prove its case beyond reasonable doubt and cannot take support from the weakness of the case of defence. There must be proper legal evidence and material on record to record the conviction of the accused. The conviction can be based on sole testimony of the prosecutrix provided it lends assurance of her testimony. However, in case the court has reason not to accept the version of prosecutrix on its face value, it may look for corroboration. In case the evidence is read in its totality and the story projected by the prosecutrix is found to be improbable, the prosecutrix case becomes liable to be rejected.” 22. Therefore, although there is testimony of prosecutrix in this case, yet it is not a case where the prosecution has proved its case beyond reasonable doubt. On the other hand, a serious doubt is created in the entire story of the prosecution. Moreover, the Trial Court has proceeded on a wrong presumption regarding the age of the prosecutrix. She was 16 years of age on the date of incident as per the medical report. 11 23. In any case, the manner in which the trial was conducted cannot be said to be a fair trial. The defence was without a counsel. The trial court gave an opportunity to the accused to engage a counsel, to which he replied that he will cross-examine the witnesses himself. Nothing further is there on the record on this aspect. There was no meaningful defence in this case which is evident from the fact that crucial witnesses such as PW2, PW3 and PW5, i.e. father of the prosecutrix, mother of the prosecutrix and the doctor who had medically examined the prosecutrix respectively, were never cross-examined by the defence. Was this a fair trial! 24. What is the position of law, where the defendant in a sessions trial is not being represented by a lawyer? In this regard, there is an extremely important judgment from the Indian Law Reports of Allahabad High Court which is a Full Bench Judgment delivered on 1.2.1891 in the case of Queen-Empress v. Pophi. This Full Bench was constituted to examine the powers of the Appellate Court under the then Section 423 (under the old Code of Criminal Procedure, 1882). Section 423 of the then Code of Criminal Procedure of 1882, read as under: “Section 423. Powers of Appellate Court in disposing of appeal: (1) The Appellate Court shall then send for the record, of the case, if such record is not already, in Court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-- 12 (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but, subject to the provisions of section 106, sub-section (3), not so as to enhance the same; (c) in an appeal from any other order, alter or reverse such order; (d) make any amendment or any consequential or incidental order that may be just or proper. (2) Nothing herein contained shall authorize the Court to alter or reverse the verdict of a jury, unless it is of opinion that such verdict is erroneous owing to a misdirection by the Judge, or to a misunderstanding on the part of the jury of the law as laid down by him.” 25. The question was whether the court could decide the appeal, without hearing the appellant, in person or through his Counsel. The matter was referred to the Full Bench on the recommendation of Justice Mahmood. The question was whether the appellant who is confined in jail, can be said to be heard, within the meaning of Section 423 Cr.P.C., when by reason of his confinement in jail, he cannot appear, and is without 13 means to instruct a pleader to appear for him. The majority opinion of the court which was given by the Chief Justice Sir John Edge, Kt., which was that in case the appellant is neither present in person nor represented by a pleader or a lawyer then all that can be done by the court is to peruse the record and decide the appeal. 26. Justice Syed Mahmood in his dissenting opinion said that this cannot be done as the word “hearing” in Section 423 means an effective and meaningful hearing. It is not a mere formality or an eyewash. Justice Mahmood read Section 423 with Section 422 (of the then Cr.P.C.), where powers were given to the Appellate Court where, in case, it has not rejected the appeal summarily, then it shall cause notice to the appellant. Section 422, as it stood then in the Criminal Procedure Code, 1882, read as under: “If the Appellate Court does not dismiss the appeal summarily, it shall cause notice to be given to the appellant or his pleader, and to such officer as the Local Government may appoint in this behalf, of the time and place at which such appeal will be heard, and shall, on the application of such officer, furnish him with a copy of the grounds of appeal; and, in cases of appeals under section 417, the Appellate Court shall cause a like notice to be given to the accused.” 27. Elaborating the meaning of the word “notice” given in Section 422, Justice Mahmood was of the view 14 that since the appeal has not been summarily rejected and had come up before the Court for hearing under Section 423, a notice was liable to be given to the accused. Finally Justice Mahmood was of the opinion that the appeal cannot be heard unless the appellant is before the court in person or through his pleader. The observations made by Justice Mahmood in paragraphs 48 and 49 are reproduced as under: “48. Having so far dealt with these aspects of the case, as they have appeared to me both in point of law and upon points which I think have even higher basis than that doubtful phrase, I think it is necessary for me to say that, if it is true that the law of British India makes it possible for me sitting here as a Judge, in the first place, by dint of my writ to order a person to be imprisoned and tied by a chain, then in the next place to require the mockery of giving him notice, the mockery of asking him to attend, when I, by dint of the exercise of my own power have made it impossible for him to attend, and then have the solemn mockery of having his name called out; if this is the law of British India, I hope the sooner it is abrogated the better. 49. I am of opinion that we cannot proceed to hear this case, unless the prisoners are before us, or can be heard within the meaning of s. 423 of the Criminal Procedure Code.” 28. This was the opinion of a learned Judge, on the meaning of “hearing” and more importantly on a “fair trial” in the year 1891, when there was no Section 403 CrPC, as we have now. Yet the learned Judge, who had a deep rooted sense of justice and fairness, refused to condemn a man unheard. The learned Judge took recourse to the maxim “audi alteram partem” and “ubi jus 15 ibi remedium”, which he referred as “human jurisprudence”. 29. Justice Sutherland of U.S. Supreme Court in the case of Powell v. Alabama, 287 US 45 (1932), famously known as Scottsboro case had made some extremely important observations, which are relevant for our purposes in the present case. Scottsboro, was a case where nine Afro-American boys were tried for rape of two white women. The accused were found guilty and sentenced to be hanged by the trial court. They were not provided the aid of any counsel, and in fact the trial itself lasted a single day! This case ultimately reached the U.S. Supreme Court, which struck down the conviction of these accused and held that it was the duty of the court to have provided legal assistance to the accused, for the reason that : “Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge and convicted on improper evidence. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of man of intelligence how much more true is it of the ignorant and illiterate, or those of feeble intellect.” 16 30. In India, the principles of fair trial are given in our Constitution, and the Criminal Procedure Code. The Constitution of India, under Article 21 protects life and personal liberty of every person. A person cannot be deprived of it except according to the procedure established by law. Article 22 lays restriction on arrest and detention of a person. Article 39-A which was inserted by way of 42nd Amendment in the Constitution of India in 1976, is a part of Directive Principles, reads as under: “39-A Equal justice and free legal aid. – The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.” 31. In the Criminal Procedure Code, 1973, Section 304 makes it mandatory for the Court under certain conditions, in a session trial, to provide a pleader to the defendant. Section 304 reads as under: “304. Legal aid to accused at State expense in certain cases. (1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State. (2) The High Court may, with the previous approval of the State Government, make rules providing for- (a) the mode of selecting pleaders for defence under sub- section (1); 17 (b) the facilities to be allowed to such pleaders by the Courts; (c) the fees payable to such pleaders by the Government, and generally, for carrying out the purposes of sub- section (1). (3) The State Government may, by notification, direct that, as from such date as may be specified in the notification, the provisions of sub- sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before Courts of Session.” 32. Apart from the above mandate of law, which casts a duty on the court to give legal assistance to the accused in a Court of Sessions the Legal Services Authorities Act, 1987 has further widened the scope. The Legal Services Authorities Act, 1987 is an Act of Parliament which has set up a National Legal Services Authority at the Centre and State Legal Services Authorities in each of the States. Authorities have also been constituted in every district as well. The principal object of this Act is to give legal service to persons who are not able to afford legal service for themselves. Now legal assistance is not confine to a court of sessions. 33. The ground work for the above legislation (Legal Services Authorities Act, 1987), was done by the Hon’ble Apex Court in a series of judgments in the 70s and 80s. In the case of Madhav Hayawadnrao Hoskot v. State of Maharashtra, (1978) 3 SCC 544, while defining “procedure established by law” in Article 21 of the Constitution of India, the Hon’ble Apex Court, inter alia, held that “procedure established by law” means a procedure which is fair and reasonable and includes right to appeal and right to counsel in a criminal trial. 18 34. In the seminal judgment of Hussainara Khatoon & Others (IV) v. Home Secretary, State of Bihar, Patna, (1980) 1 SCC 98, having understood the plight of undertrial prisoners, the Hon’ble Apex Court said as under: “The right to free legal services is, therefore, clearly an essential ingredient of ‘reasonable, fair and just’ procedure for a person accused of an offence and it must be held implicit in the guarantee of Article 21. This is a constitutional right of every accused person who is unable to engage a lawyer and secure legal services on account of reasons such as poverty, indigence or incommunicado situation and the State is under a mandate to provide a lawyer to an accused person if the circumstances of the case and the needs of justice so require, provided of course the accused person does not object to the provision of such lawyer.” 35. In Khatri & Others (II) v. State of Bihar & Others, (1981) 1 SCC 627, once again the right of a poor and indigent person for free legal services was emphasized as a right to be read within the meaning of Article 21 of the Constitution of India. The right for free legal services should not be merely an illusionary right but an effective and meaningful right and, therefore, it was emphasized in paragraph 6 of the judgment as under: 19 “But even this right to free legal services would be illusory for an indigent accused unless the Magistrate or the Sessions Judge before whom he is produced informs him of such right. It is common knowledge that about 70 per cent of the people in the rural areas are illiterate and even more than that percentage of people are not aware of the rights conferred upon them by law. There is so much lack of legal awareness that it has always been recognised as one of the principal items of the programme of the legal aid movement in this country to promote legal literacy. It would make a mockery of legal aid if it were to be left to a poor ignorant and illiterate accused to ask for free legal services. Legal aid would become merely a paper promise and it would fail of its purpose. The magistrate or the Sessions Judge before whom the accused appears must be held to be under an obligation to inform 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. Unfortunately, the Judicial Magistrates failed to discharge this obligation in the case of the blinded prisoners and they merely stated that no legal representation was asked for by the blinded prisoners and hence none was provided. We would, therefore, direct the magistrates and Session Judges in the country to inform every accused who appears before them and who is not represented by a lawyer on account of his poverty or indigence that he is entitled to free legal services at the cost of the State. Unless he is not willing to take advantage of the free legal services provided by the State, he must be provided legal representation at the cost of the State. We would also direct the State of Bihar and require every other State in the country to make provision for grant of free legal services to an accused who is unable to engage a lawyer on account of reasons 20 such as poverty, indigence or incommunicado situation. The only qualification would be that the offence charged against the accused is such that, on conviction, it would result in a sentence of imprisonment and is of such a nature that the circumstances of the case and the needs of social justice require that he should be given free legal representation. There may be cases involving offences such as economic offences or offences against law prohibiting prostitution or child abuse and the like, where social justice may require that free legal services need not be provided by the State.” 36. In Suk Das v. Union Territory of Arunchal Pradesh, (1986) 2 SCC 401, what was earlier stated by the Hon’ble Apex Court in Hussainara Khatoon and Khatri was reiterated and it was said that legal aid cannot be denied to an accused merely on the ground that he did not seek such a legal aid. Such a person must be made aware of his rights i.e. right to get a legal aid and this must be conveyed to him clearly by the Court where he is being tried. Failure on the part of Court to do so would vitiate the trial. 37. More recently in the case of Mohammed Ajmal Mohammad Amir Kasab alias Abu Mujahid v. State of Maharashtra reported in (2012) 9 SCC, it was said as under: “477. Every accused unrepresented by a lawyer has to be provided a lawyer at the commencement of the trial, engaged to represent him during the entire course of the trial. Even if the accused does not ask for a lawyer or he remains silent, it is the Constitutional duty of the court to provide him with a lawyer before commencing the 21 trial. Unless the accused voluntarily makes an informed decision and tells the court, in clear and unambiguous words, that he does not want the assistance of any lawyer and would rather defend himself personally, the obligation to provide him with a lawyer at the commencement of the trial is absolute, and failure to do so would vitiate the trial and the resultant conviction and sentence, if any, given to the accused (see Suk Das v. UT of Arunachal Pradesh, (1986) 2 SCC 401.” 38. In the present case, the Court below proceeded with the trial, without providing any legal assistance to the accused/appellant. But it does not stop here. The trial court also failed to perform its essential function of conducting the trial as it ought to have been done under the circumstance. The records do not show that the court at any point of time had put any question to any of the witnesses. 39. The entire exercise in a trial must be geared towards one and only one goal, which is to reach the truth. The Criminal Procedure Code as well as Indian Evidence Act give enough powers and tools to the Presiding Officer in forms of certain enabling provisions under the Statute to pursue this goal. I must refer here to the powers of the court under Section 165 of the Indian Evidence Act. Section 165 of the Indian Evidence Act reads as under : “165. Judge’s power to put questions or order production.—The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production 22 of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.” 40. In a decision of the Hon’ble Apex Court, delivered by Justice O. Chinnappa Reddy (Ram Chander v. State of Haryana reported in (1981) 3 SCC 191), the Court has elaborated on the powers given to a trial court under Section 165 of the Indian Evidence Act. In the very first paragraph of the said judgment, the learned Judge first has framed the question, which he later answers. The question is : “What is the true role of a judge trying a criminal case? Is he to assume the role of a referee in a football match or an umpire in a cricket match, occasionally answering, as Pollock and Maitland (Pollock and Maitland: The History of English Law) point out, the question ‘How is that’, or, is he to, in the words of Lord Denning ‘ drop the mantle 23 of a judge and assume the robe of an advocate’? Jones v. National Coal Board, 1957 2 All ER 155. Is he to be a spectator or a participant at the trial? Is passivity or activity to mark his attitude? If he desires to question any of the witnesses, how far can he go? Can he put on the gloves and ‘have a go’ at the witness who he suspects is lying or is he to be soft and suave? These are some of the questions which we are compelled to ask ourselves in this appeal on account of the manner in which the judge who tried the case put questions to some of the witnesses.” 41. Justice O. Chinnappa Reddy then explains what is the goal in a criminal trial. The goal is the discovery of truth and, therefore, every possible avenue must be utilized by the court in advancement of the above goal. Simply put, the emphasis was what is laid down in bold and clear letters in Section 165 of the Indian Evidence Act, which is duty of the Judge “to ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant”. An enormous duty is cast on the Presiding Judge. “He must take the prosecution and the defence with him. The Court, the prosecution and the defence must work as a team, whose goal is justice, a team whose captain is the judge. The judge ‘like the conductor of a choir, must, by force of personality, induce his team to work in harmony; subdue to raucous, encourage the timid, conspire with the young, flatter the old.”* * Ram Chander v. State of Haryana; (1981) 3 SCC 191), 24 42. In the case at hand, the prosecution witnesses were hardly put to any meaningful crossexamination, as the defence was without a counsel. It was here that powers under Section 165 of the Evidence Act should have been exercised by the court by putting relevant questions to the witnesses. This was never done. 43. Having said this, it must also be recorded that the lower court records do show that when the defendant was without a counsel, the court did ask him that in case he wants, the court can provide a counsel to him but the defendant refused the offer and said that he will himself cross-examine the witnesses. How these witnesses have been examined is something we have already seen in the preceding paragraphs of this order. It is here that we again need to be reminded of what Justice Sutherland had observed in the Scottsboro case, of which a reference has been made in the earlier paragraphs of this order. The court had cautioned that even an intelligent educated layman is unfamiliar with court proceedings and Rules of evidence and he needs the guiding hand of a counsel, and if that is true in case of an intelligent well educated person, it is even more true in a case of uneducated and indigent person. 44. What is to be done in a case where the accused has been convicted in a trial, where he had no assistance of a lawyer? I am of the view that though the records do show that the Presiding Judge did inform the accused that he can be provided legal assistance but that was never conveyed in a meaningful manner. It was never told 25 to the accused that this is his legal right. It was merely a formality performed. It had no real purpose. 45. Having said this, it must also be said that had this been simply a case where the defendant was unrepresented, there would have been no difficulty in setting aside the order, for a retrial. But then here is also a case where the prosecution has not been able to establish its case beyond a reasonable doubt! Considering the nature of evidence, the accused in any case was liable to be given a benefit of doubt. 46. Consequently, the appeal is hereby allowed. The impugned judgment and order dated 14.2.2013 is hereby set aside. Conviction of the accused appellant and the sentence awarded to him are quashed. Appellant shall be released from the jail if he is not wanted in any other case. 47. Let a copy of this judgment, along with LCR, be sent to the Court concerned and the Jail Authority to ensure its compliance.

(Sudhanshu Dhulia, J.)