Inadequate Legal Aid To Murder Accused: Patna HC Sets Aside Death Penalty, Orders Retrial [Read Judgment]

It was mandatorily required on the part of the trial court to take steps for providing any counsel from Legal Aid Committee or at the expense of the government, the bench said.

The Patna High Court has ordered a retrial in a murder case while setting aside the death sentence imposed on an accused, observing that the accused was not provided adequate legal aid.

This was a case of the murder of two minor children. The trial court had convicted the accused of murder relying on the prosecution witnesses, six in number.

In an appeal, it was contended before the high court that due to poverty, the accused was not in a position to get the assistance of his advocate regularly and this was the reason that out of six witnesses, five witnesses could not be cross-examined by any defence counsel. It was also contended that informant, investigating officer and doctor who conducted post-mortem examination was not examined by the prosecution.

A bench of Justice Rakesh Kumar and Justice Arvind Srivastava observed that it was mandatorily required on the part of the trial court to take steps for providing any counsel from Legal Aid Committee or at the expense of the government. The court observed: “It has been noticed that the appellant was not provided adequate legal aid. At the time of cross-examination of P.W. 1 to P.W. 5 there was none to defend the appellant and this was the reason that he himself had either cross-examined some of the witnesses or declined to cross-examine some witnesses…. Accordingly, we are of the opinion that it was not true compliance with Section 304 of the CrPC.”

Ordering retrial, the court observed: “Since in the case two minor children of informant were done to death as alleged, it would not be the end of the matter, rather it would be necessary to remit back the matter to the court below with a direction to proceed from the stage prior to closure of prosecution evidence. The prosecution thereafter will take all steps to secure attendance of informant, investigating officer as well as doctor who conducted a post-mortem examination on the dead body of two deceased. The prosecution would be entitled to examine leftover witnesses.”

The court also directed the trial court to take up the matter at least twice in a week so that trial may come to its logical end without unnecessary delay.