'Right To Fair Trial Violated': Bombay High Court Quashes Death Sentence, Orders Fresh Trial After Accused Was Not Properly Represented

The Bombay High Court on Tuesday (March 24) set aside a judgment of a Nashik Sessions Court awarding death sentence to a man convicted for raping and killing a minor girl, on the ground that the accused had no legal representation during the trial and therefore, remanded the matter back to the sessions court to conduct the trial afresh. A division bench of Justice Sarang Kotwal and Justice Sandesh Patil noted that the prime accused, who was awarded death sentence, was not properly represented by any lawyer even at the time of framing of charge and further during the trial, some lawyers from the legal aid panel appeared for him but failed to conduct proper cross-examination of the prosecution witnesses. In fact, at least 11 important prosecution witnesses were examined in the absence of any lawyer to represent the accused - Vilas Mahale. The bench noted that the offence of Mahale raping a minor girl and then killing her, locking her body in his room and fleeing from the village itself was a grave one yet ordered a 'de novo' trial (trial from the beginning) only because the accused was not properly represented by a lawyer throughout the trial. "The offence is grave and extremely serious. The victim's family is still waiting for justice but at the same time the accused also has his right of fair trial which cannot be deprived," the judges observed in the order, making it clear to the sessions judge to take all the precautions to see that the trial is conducted in a manner which is fair to both the accused and the prosecution. Considering the pain of the victim's family, the judges made it clear, "The family of the victim, and in particular the mother and the grandmother of the victim who were examined during the trial, will have to undergo trauma and relive the horrific experience, reminding themselves of the incident. In this case, this is unavoidable. We expect the trial Judge and the defence counsel to be alive to this fact and be sensitive while conducting the trial and while conducting the cross-examination."As per the facts of the case, on November 4, 2009, a minor girl known to Mahale, was asked by him to bring tobacco from a nearby shop. She bought the same and gave it to him. He took her in his house and there sexually assaulted the minor girl and thereafter, killed her by strangulating her with wires. He kept her body (in a sitting position) in his house, covered it with a basket and even put some garbage on her to hide the body. He locked the house and when came out, he saw the girl's mother and grandmother looking for her. He told them that he had asked her to bring tobacco from the shop and then left the spot.The mother sensed something wrong in this, and then went to Mahale's house, only to see it was locked. She called him on his phone but he did not receive the multiple calls and thereafter, with help of some of the villagers, the lock was broken open and the girl's body was recovered. However, at the time of trial, Mahale was provided with a legal aid panel lawyer but he asked the lawyer to seek discharge from the case as he desired to engage a private lawyer. The trial court proceeded with framing charges and then he apprised the court about his inability to engage a lawyer and therefore, he was provided with legal aid panel lawyer. However, from time-to-time, the legal aid panel lawyers were changed as some of them did not attend the trial. "The accused no.1 (Mahale) was not represented by any Advocate at the time of framing of the charge. The examination of eleven important prosecution witnesses was recorded in the absence of any Advocate. In fact, no Advocate was appointed for him during that period. Thus, it can be seen that throughout the trial right from the time of framing of the charges and examination of the important witnesses, the accused no.1 was not represented by any Advocate. Even the documents were not made available to the Legal Aid Counsel. Therefore, there is a clear violation of the principles of fair trial. The accused no.1 was denied an opportunity to defend himself. This is in violation of his rights under Article 21 of the Constitution of India," the bench held. The bench noted that after a point of time when 11 protection witnesses were examined, a lady lawyer was appointed from the legal aid panel, who filed applications recalling some of the witnesses for cross-examination. However, the cross-examination done later, was 'not satisfactory' the judges opined. The bench noted from various rulings that the presence of a counsel for an accused at the time of recording of examination-in-chief is not an empty formality but it is a valuable right available to the accused. "Even that right was denied to Mahale. At every single stage, there was violation of the procedure of fair trial. Without commenting on the quality and capacity of the Legal Aid Counsel and the private Advocate appointed by the accused no.1, we are constrained to observe that in such a serious case the...

'Right To Fair Trial Violated': Bombay High Court Quashes Death Sentence, Orders Fresh Trial After Accused Was Not Properly Represented

Narsi Benwal

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