Supreme Court acquits rape and murder convict citing lack of legal aid; passes directions to prosecutors

The Supreme Court on Monday acquitted a rape and murder convict after noting that he was not properly represented by a lawyer during the trial and the cross-examination of witnesses was not "upto the mark" [Ashok vs State of Uttar Pradesh]..A Bench of Justices AS Oka, Ahsanuddin Amanullah and Augustine George Masih further said that there was non-compliance with Section 313 of the Code of Criminal Procedure (CrPC) which provides for examination of the accused to enable him to personally to explain any circumstances appearing in the evidence against him."The appellant is entitled to acquittal on the ground of the failure to put incriminating material to him in his examination under Section 313 of the CrPC. We are surprised to note that both the Trial Court and High Court have overlooked noncompliance with the requirements of Section 313 of the CrPC," the Court said.It was shocking that the trial court imposed death penalty in a case which should have culminated in acquittal, the Bench opined."Shockingly, the Trial Court imposed the death penalty in a case which ought to have resulted in acquittal. Imposing capital punishment in such a case shocks the conscience of this Court," the Court said, not mincing its words.Hence, while acquitting the accused, the Court passed a slew of directions on how public prosecutors can aid in ensuring that rights of an accused are not violated during trial..Background.The accused Ashok was booked for rape and murder of a 10-year-old.As per the prosecution, she and her first cousin aged 7 years, had gone to a pasture to graze her goats. As the victim was thirsty, she went near a tube well cabin. The accused was working as an operator of the tube well. The victim requested the accused to provide drinking water. The allegation of the prosecution is that the accused took her inside the cabin and committed rape on her and murdered her.As per the prosecution case, the cousin saw the accused forcibly taking the victim inside the cabin and raping her. She returned and narrated the incident to the victim's father.The accused was later apprehended and stood trial. The trial court convicted the accused in December 2012 for the offences punishable under Sections 376 (rape), 302 (murder) and 201 (causing disappearance of evidence) of the Indian Penal Code and also for offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. He was sentenced to death. The Allahabad High Court upheld the conviction but commuted the death penalty to life imprisonment.The convict then moved the Supreme Court in appeal..Supreme Court Judgment.The Supreme Court noted that the accused was not represented by a lawyer at the stage of framing of charge.The examination-in-chief of prosecution witness 1 (PW 1) was also allowed to be recorded without giving legal aid counsel to the accused, who was not represented by an advocate, the Court observed."If the examination-in-chief of a prosecution witness is recorded in the absence of the advocate for the accused, a very valuable right of objecting to the questions asked in examination-in-chief is taken away. The accused is also deprived of the right to object to leading questions," the Court said.It also opined that the cross-examination done by the legal aid lawyers who represented the accused, was not upto the mark."It will not be appropriate to comment on the capabilities of the two legal aid lawyers appointed in this case as they are not parties before us. But suffice it to say that the cross-examination of the witnesses was not up to the mark," the Court opined.Some of the crucial questions that normally would have been put in the cross-examination have not been asked, the Court said.Pertinently, the Court noted that there was flagrant violation of Section 313 of the Criminal Procedure Code (CrPC) since the material and evidence relied upon by the prosecution was not put to the accused while his cross examination was conducted.Hence, it set aside the conviction of the accused and acquitted him..Directions to Public Prosecutors.The Court also passed a slew of directions to ensure that the public prosecutors act fairly and rights of accused are protected:.1. It is the duty of the Court to ensure that proper legal aid is provided to an accused;2. When an accused is not represented by an advocate, it is the duty of every public prosecutor to point out to the Court the requirement of providing him free legal aid;3. Even if the Court is inclined to frame charges or record examination-in-chief of the prosecution witnesses in a case where the accused has not engaged any advocate, it is incumbent upon the public prosecutor to request the Court not to proceed without offering legal aid to the accused;4. It is duty of the public prosecutor to assist the trial court in recording the statement of the accused under Section 313 of the CrPC;5. It is the duty of the public prosecutor to ensure that those who are guilty of the commission of offence must be punished, it is also his duty to ensure that there are no infirmities in the conduct of the trial which will cause prejudice to the accused;6. At all material stages, including the stage of framing the charge, recording the evidence etc, it is the duty of the Court to make the accused aware of his right to get free legal aid. If the accused expresses that he needs legal aid, the trial court must ensure that a legal aid advocate is appointed to represent the accused;7. In all the cases where there is a possibility of a life sentence or death sentence, only those advocates who have put in a minimum of ten years of practice on the criminal side should be considered to be appointed as amicus curiae or as a legal aid advocate;8. State Legal Services Authorities shall issue directions to the Legal Services Authorities at all levels to monitor the work of the legal aid advocate and shall ensure that the legal aid advocates attend the court regularly and punctually when the cases entrusted to them are fixed;9. It is necessary to ensure that the same legal aid advocate is continued throughout the trial unless there are compelling reasons to do so or unless the accused appoints an advocate of his choice;10. If legal aid is provided only for the sake of providing it, it will serve no purpose. Legal aid must be effective. advocates appointed to espouse the cause of the accused must have good knowledge of criminal laws, law of evidence and procedural law..Senior Advocate Shoeb Alam served as as the amicus curiae with advocate Talha Abdul Rahman assisting him. Senior Advocate K Parameshwar appeared for the State of Uttar Pradesh..[Read Judgment]