InMohd. Ajmal Mohd. Amir Kasab alias Abu Mujahid
Vs. State of Maharashtra AIR 2012 SC 3565 the Supreme Court held that
even if the accused does not ask for a lawyer or remains silent, the same is
not sufficient. The accused must voluntarily make an informed decision. An
informed decision is a decision where the Court informs the consequences
and the danger of the waiver and it must clearly be noted that the accused
understood the consequences of waiver.
IN THE HIGH COURT OF DELHI AT NEW DELHI
CRL.A. No. 1046/2008
Decided on: 3rd May, 2013
SATISH KUMAR S/O ACHARYANAND
versus
STATE
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1.
By this appeal the Appellant challenges the judgment dated 28 th
November, 2006 wherein the Appellant has been held guilty of offence
under Section 376 IPC and the order dated 29 th November, 2006 whereby he
has been directed to undergo Rigorous Imprisonment for a period of 14 years
and a fine of Rs. 2000/- and in default of payment of fine to undergo further
Simple Imprisonment for a period of six months.
2.
Learned amicus curiae for the Appellant contends that the Appellant
has been convicted on the allegations of commission of offence of rape on
10th February, 2003 on two minor girls PW1 and PW6 aged 12 years and 11
years respectively.
The alleged incident was reported belatedly on 14 th
February, 2003. The hymen of PW6 who was aged 11 years was found to be
intact and as per PW2 Dr. Shakun Tyagi there was no clinical evidence of
rape when she was examined on 14th February, 2003. Though the hymen of
PW1 aged 12 years was ruptured however there was no other sign of rape
and thus PW3 Dr. Anita after examining the PW1 the prosecutrix in the
cross-examination admitted that there was no clinical evidence of rape
except hymen being torn. There were no external injuries on the body of
either of the two prosecutrix or the Appellant. In case the alleged offence
had been committed by the Appellant, it was not possible that there would
have been no injuries on the body or the private parts of the Appellant or the
two prosecutrix. Admittedly as per the prosecution witnesses PW1, PW4
and PW18, the Appellant was handed over to the Police on 13 th February,
2003 where after he was beaten and implicated in this case. As per PW6 the
Appellant was handed over to the Police on 12th February, 2003.
The
version of the prosecutrix is not corroborated by her teacher PW7. There is
no evidence to prove that the semen stains found on the clothes of PW1 and
PW6 belonged to the Appellant. Even if the allegations of the prosecutrix
are taken on their face value, at best an offence under Section 354 IPC is
made out. Reliance is placed on Mohd. Mian Vs. State 37 (1989) DLT 39
and Pappu Vs. State of Delhi 2009 (111) DRJ 313 (DB).
It is lastly
contended that during the trial, there was violation of the constitutional right
of the Appellant as he was not defended by a lawyer. In view of the absence
of legal aid, there is no cross-examination of PW12, PW20 and PW21 of
which PW20 & PW21 were the investigating officers and thus very crucial
witnesses. In Mohd. Hussain alias Zulfikar Ali Vs. State (Govt. of NCT of
Delhi) 2012 (2) SCC 584 the two Judge Bench of the Hon‟ble Supreme
Court relying upon Zahira Habibulla Sheikh Vs. State of Gujarat (2006) 3
SCC 374 held that in case an accused is tried in the absence of lawyer, the
same amounts to violation of Article 21 of the Constitution of India. A
counsel has to be provided in a substantial and meaningful sense. Legal aid
should be given to the accused and not merely offered. Since the two
Hon‟ble Judges differed in the conclusion, the matter was referred to the
larger Bench and in Mohd. Hussain alias Zulfikar Ali Vs. State (Govt. of
NCT), Delhi AIR 2012 SC 3860 the three Judge Bench remanded the matter
for retrial. Similarly, in Mohd. Ajmal Mohd. Amir Kasab alias Abu Mujahid
Vs. State of Maharashtra AIR 2012 SC 3565 the Supreme Court held that
even if the accused does not ask for a lawyer or remains silent, the same is
not sufficient. The accused must voluntarily make an informed decision. An
informed decision is a decision where the Court informs the consequences
and the danger of the waiver and it must clearly be noted that the accused
understood the consequences of waiver. Reliance is placed on Godinez,
Warden Vs. Moran 509 US 389 (1993). On an application moved by the
Appellant, the prosecutrix was recalled for examination and despite the
counsel being not available for cross-examination, the Appellant was asked
to cross-examine the witnesses. Hence the impugned judgment is liable to
be set aside on this count itself.
3.
Learned APP on the other hand contends that the testimony of two
prosecutrix PW1 and PW6 is consistent. Since the prosecutrix are much
below 16 years of age consent is immaterial.
As per the FSL report
Ex.PW21/A semen stains of Group „A‟ were found on the kurta and salwar
of PW1, underwear of PW6 and the clothes of the Appellant. Since the
hymen of PW1 was ruptured, the same is sufficient to prove that sexual
intercourse was committed with her. Further there is no motive attributed
for false implication to the two prosecutrix.
In the statement of the
Appellant recorded under Section 313 Cr.P.C. no defence has been taken and
the Appellant has chosen to remain silent. An amicus curiae was offered to
the Appellant, however the Appellant specifically refused to take an amicus
curiae which is evident from the order dated 1st September, 2006. Hence the
Appellant now cannot take the plea that he was denied legal aid. Reliance is
placed on Mohd. Hussain alias Zulfikar Ali Vs. State (Govt. of NCT), Delhi
AIR 2012 SC 3860 to contend that even if this Court comes to the conclusion
that the right of legal aid was denied to the Appellant and he was not in a
position to take the informed decision, the matter is required to be remanded
back.
4.
I have heard learned counsel for the parties and perused the record.
Briefly the case of the prosecution against the Appellant is that FIR No.
45/2003 under Section 376/354/511 IPC was registered at PS Prasad Nagar
on the complaint of PW1 that the Appellant allegedly committed rape on two
minor girls PW1 and PW6 aged 12 years and 11 years respectively on 10th
February, 2003 in a house at Karol Bagh in the evening hours at 6.00 PM
where he was living as a tenant. PW1 the complainant on whose statement
the FIR was registered stated that she was studying in 5 th standard and her
father was doing the work of repairing of mobiles. On 10th February, 2003
she was in her class when her friend „K‟ told PW1 that her uncle gives
money to her. PW1 along with „K‟ went to the house of her uncle at Bapa
Nagar i.e. the Appellant herein. „K‟ went inside the house and after some
time called PW1. The Appellant asked „K‟ to prepare tea, who went outside
to fetch milk and thereafter prepared tea for all. The Appellant removed the
clothes of „K‟ and his own clothes and committed wrong acts with „K‟.
Thereafter the Appellant committed the same act with PW1 as he committed
with „K‟. The Appellant asked both the girls to wear clothes and handed
over Rs. 10 to „K‟ and Rs. 5 to PW1.
Thereafter they went to their
respective homes. For two-three days PW1 did not go to the school. On
Thursday when she went to the school her teacher asked why she reached
home very late at 7.30 PM on Monday PW1 told the teacher that „K‟ had
taken her to the house of Appellant and narrated the incident. Parents of
PW1 were called through the chowkidar and they were informed about
incident by the teacher. PW1 came back to her house with her parents and
thereafter all of them went to the house of the Appellant where he was not
found and it was found that he was in the factory. The Appellant was
apprehended from the factory by the mother of PW1 where he was given
beatings and thereafter handed over to the Police. PW1 states that thereafter
she was sent back with her maternal uncle from the factory by her mother.
On 14th February, 2003 PW1 was first taken to the Police station where
enquiries were made and she gave the clothes she was wearing on the date of
incident i.e. the school dress consisting of salwar, kamij and underwear. Her
statement was recorded as Ex.PW1/B which she signed and her clothes were
seized vide memo Ex.PW1/A. She stated that „K‟ is also known as „P‟.
5.
Statement of PW6 „K‟ @ „P‟ was also recorded. She stated that on
14th February, 2003 in the evening time she along with PW1 went to the
house of Appellant. She left the school at about 5.00 PM and went to the
house of the Appellant as he was a tenant of her grand-mother and PW1 had
told her that she was in need of money. When they entered the room of the
Appellant he was lying on the Cot and there were two more persons present.
After a while the two other persons left the room and thereafter the
Appellant took off her wearing clothes and dragged her in his blanket. The
Appellant put off his clothes also and started touching parts of her body.
Thereafter the Appellant committed “Galat Kaam” with her. The witness
described the act done by the Appellant. PW6 further stated that thereafter
he called PW1 and committed the same act with PW1 and gave Rs. 10 to her
and Rs. 5 to PW1. At the time of illegal act, the Appellant stated “Maja Aata
Hai, Aur Ladkiyon ko bhi lee aana”. She stated that she did not go to the
school on Tuesday, however on Wednesday the Police came to her house as
father of PW1 had lodged the complaint and apprehended the Appellant
from the factory.
6.
PW1 and PW6 have thus categorically stated about the acts committed
by the Appellant. As per the medical evidence on record, the hymen of PW6
was intact whereas hymen of PW1 was ruptured. For commission of an
offence of rape, complete sexual intercourse is not required and mere
penetration is sufficient.
The testimony of PW1 and PW6 is further
corroborated by the FSL report Ex.PW21/A. As per report Ex.PW21/A
human semen was detected on salwar belonging to PW1, the bed-sheet and
the pant of the Appellant and the underwear of PW6. Further the human
semen present on Ex.1b, 2a, 2b and Ex.4 were all of „A‟ group. This report
is exhibited by PW21 the investigating officer. In the report their appears to
be a typographical error as to the semen being detected on kurta instead of
salwar of PW1. The same is clarified by the report of grouping of semen
stains on the different clothes.
7.
It may be noted that PW21 the investigating officer was not cross-
examined by the Appellant as no counsel appeared on his behalf. Thus this
brings me to the most crucial aspect of the matter whether the Appellant was
denied the right of legal aid. In this regard it would be relevant to note some
of the order sheets of the learned Trial Court. The charge was framed
against the Appellant on 17th February, 2004 where after the evidence of
PW1 started on 3rd September, 2004. Though other PWs were also recorded,
however the counsel for the Appellant submitted that he was not available
after lunch and thus the matter was adjourned to 29 th October, 2004. On 29th
October, 2004 PW3 was partly examined, however her cross-examination
could not be conducted on that date. The matter was thereafter transferred to
another Court. Thereafter till 5th December, 2005 the Appellant attended the
proceedings with his counsel and witnesses were examined.
On 5th
December, 2005 since the counsel for the Appellant sought leave to
withdraw his vakalatnama on behalf of the Appellant, he was discharged.
The Appellant stated that he wants to contest his case on his own, thus all the
witnesses who were present were bound down for the next date. On 20th
January, 2006 when the matter came up for hearing again, the Court again
offered him for providing lawyer at State expense but the Appellant flatly
refused to take lawyer on State expense and stated that he will cross-examine
the witnesses himself. On that day PW14, PW15 and PW16 were examined,
cross-examined by the Appellant and discharged.
Though PW12 was
present, however the Appellant stated that he would cross-examine her on
the next date being a material witness. On 20th January, 2006 the Appellant
filed an application for recalling PW1 and PW6 and on his request PW1 and
PW6 were re-summoned for further cross-examination on the next date.
Vide order dated 20th February, 2006 the learned Trial Court observed as
under:
“20/2/06
Present.
Ld. Addl. P.P. for the State.
Accused Satish Kumar is in J.C.
PW17 H.C. Ram Kishor examined, cross-examined by
the accused himself and discharged. PW12 Lady const. Sunita
is present for his cross-examination but the accused has stated
that he is unable to cross examine this witness as she is the
main witness in the case. In the morning at the submission of
the accused, the entire photocopy of the statement of the
witnesses have been supplied to him at 11 AM at the State
expenses and, thereafter, at his request, the case taken up after
lunch as he wants to go through the said statements but after
lunch he again took the plea that no entire copy has been given
to him. So, he is unable to make the cross-examination of the
witness and shouted that he again engage his counsel. So, the
attitude and behavior of the accused is not good and he wants to
become over smart in the court. For his behavior, he is warned
not to do such a practice to delay his matter because PW12
Sunita used to appear on each and every date for cross-
examination and IO SI Harshvardhan for his statement. In view
of this, the accused again asked if he wants lawyer, the lawyer
can be provided to him on State expenses but he has flatly
refused. So, in the interest of justice, the case is adjourned with
direction to the accused to come to the Court with preparation
to make the cross-examination of the witnesses. Both the PWs
are bound for their cross-examination. SI Satish appeared
before lunch but after lunch after filing the application, he has
gone. He be summoned again with other PWs who are left to
be examined. One P.W. Jagdish is also present. He is also
bound down for the next date of hearing. Now to come up on
9/3/06.
ASJ. DELHI
20.2.06”
8.
It would be thus seen that repeatedly the Appellant was offered a
lawyer at State expense which he refused and at the same time expressed his
inability to cross-examine the witnesses in the absence of his counsel. Again
when the matter came up on 9th March, 2006 both PW1 and PW6 who had
been recalled were present, however the Appellant stated that he will cross-
examine these witnesses in the presence of his lawyer. The Court noted that
Appellant had been asked on a number of dates for providing lawyer at State
expense which he was repeatedly refusing and would state that he would do
his case on his own. On that day when the witnesses were present and
recalled, the Appellant stated that he would like to do their cross-
examination in the presence of his lawyer and thus the conduct of the
Appellant amounted to harassing the child witnesses PW1 and PW6. The
Court also observed that the case was being delayed due to the behavior of
the Appellant.
Thereafter remaining witnesses were examined on 28 th
March, 2006 and 17th April, 2006. PW2 was repeatedly present, however on
27th April, 2006 the Appellant again expressed his inability to cross-examine
the witness and prayed for an adjournment.
On 27 th April, 2006 the
Appellant sought transfer of his case to another Court and consequently it
was transferred to another learned Additional Sessions Judge. On 1 st June,
2006 the Appellant expressed his willingness to accept legal assistance and
thus he was provided an amicus curiae.
The witnesses present were
discharged and recalled for the next date. On 1st June, 2006 the Appellant
was again offered legal assistance when he was willing to accept the same.
On the request of the Appellant, Shri Rambir Singh, Advocate was appointed
as Amicus Curiae. The witnesses were discharged for the day and the matter
was fixed on 25th July, 2006. On 25th July, 2006 cross-examination of the
witnesses was again deferred on the request of learned Amicus Curiae as he
wanted to go through the file. Thus the witnesses present were discharged.
However, the Appellant again interrupted the proceedings for which he was
warned. Immediately, the Appellant requested to appear before the learned
District and Sessions Judge, which prayer was allowed. On 1st September,
2006 the Appellant was present with the amicus curiae, however the
Appellant stated that he did not need the assistance of amicus curiae. His
signatures were duly taken and the learned amicus curiae was discharged.
On 12th September, 2006 the last witness was also examined by the Court.
On 26th September, 2006 the learned Trial Court noted that the Appellant is
reluctant to continue the trial and he refused to give the statement under
Section 313 Cr.P.C. The matter was thus sent to the District and Sessions
Judge for transferring the same. On 28th September, 2006 the Appellant
stated before the learned Additional Sessions Judge that he was willing to
make the statement under Section 313 Cr.P.C. before the Trial Court and
thus the file was sent back for 6th October, 2006. Again on 10th October,
2006 the learned Trial Court observed that the Appellant was not
cooperating in recording of the statement under Section 313 Cr.P.C. and
stated that he wanted a decision. Court explained him that his statement was
necessary for the disposal of the case, however the Appellant remained
unwilling to give any reply to the statement under Section 313 Cr.P.C. It
was noted that earlier also the Appellant did the same thing and thus the
Appellant was sent to the JC and the matter was adjourned sine-die with
liberty to the Appellant to move an application as and when he felt necessary
to record his statement. An application was filed by the Appellant under
Section 313 (3) Cr.P.C. on 13th October, 2006 on which notice was issued
for 17th October, 2006. The statement was recorded, however the Appellant
did not reply anything. The Appellant kept quite and did not give answer to
any of the questions including the question whether he wants to lead defence
evidence. In view thereof the judgment was pronounced by the learned Trial
Court.
9.
Learned counsel for the Appellant has laid a lot of stress on an
informed consent. A perusal of the order-sheets as noted above would show
that the present is a case where repeated offers for providing legal aid were
made to the Appellant, however he did not cooperate in the same. The issue
of informed consent came up before the Hon‟ble Supreme Court in Mohd.
Ajmal Mohd. Amir Kasab alias ABU Mujahid Vs. State of Maharashtra
(supra) wherein it was held:
487. 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 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).
10.
It is thus clear that unless the accused in clear and in unambiguous
terms states that he does not want the assistance of a lawyer and would rather
defend himself personally, the obligation to provide him a lawyer is
absolute. In the present case the Appellant was represented by a lawyer,
however the counsel withdrew in the midst of trial and thereafter repeatedly
the Appellant was asked whether he wanted a counsel at State expense which
he refused. An amicus curiae of the Appellant‟s choice was appointed for
the Appellant, however, he refused to accept the same after few dates.
Statement of the Appellant was recorded on 1st September, 2006 that he did
not want any amicus curiae, which was duly signed by him in
acknowledgment thereof. Learned counsel for the Appellant has stated that
the duty of the Court does not end at offering a lawyer. He should be
informed about the consequences and danger of the waiver. He relies upon
Godinez, Warden Vs. Moran (supra) wherein it was held:
“A criminal defendant may not be tried unless he is competent,
Pate v. Robinson, 383 U.S. 375, 378 (1966), and he may not
waive his right to counsel or plead guilty unless he does so
“competently and intelligently,” Johnson v. Zerbst, 304 U.S.
458, 468 (1938); accord, Brady v. United States, 397 U.S. 742,
758 (1970). In Dusky v. United States, 362 U.S. 402 (1960)
(per curiam), we held that the standard for competence to stand
trial is whether the defendant has “sufficient present ability to
consult with his lawyer with a reasonable degree of rational
understanding” and has “a rational as well as factual
understanding of the proceedings against him.” Ibid. (internal
quotation marks omitted). Accord, Drope v. Missouri, 420 U.S.
162, 171 (1975) (“(A) person whose mental condition is such
that he lacks the capacity to understand the nature and object of
the proceedings against him, to consult with counsel, and to
assist in preparing his defense may not be subjected to a trial”).
While we have described the standard for competence to stand
trial, however, we have never expressly articulated a standard
for competence to plead guilty or to waive the right to the
assistance of counsel.
Relying in large part upon our decision in Westbrook v.
Arizona, 384 U.S. 150 (1966) (per curiam), the Ninth Circuit
adheres to the view that the competency standard for pleading
guilty or waiving the right to counsel is higher than the
competency standard for standing trial. See Seiling v. Eyman,
478 F. 2d 211, 214-215 (1973) (first Ninth Circuit decision
applying heightened standard).
A finding that a defendant is competent to stand trial,
however, is not all that is necessary before he may be permitted
to plead guilty or waive his right to counsel. In addition to
determining that a defendant who seeks to plead guilty or waive
counsel is competent, a trial court must satisfy itself that the
waiver of his constitutional rights is knowing and voluntary.
Parke v. Raley, 506 U.S. 20, 28-29 91992) (guilty plea);
Faretta, supra, at 835 (waiver of counsel). In this sense there is
a “heightened” standard for pleading guilty and for waiving the
right to counsel, but it is not a heightened standard of
competence.
11.
Even applying the strict standards laid down as above, it is evident
that the Appellant was quite conscious of his acts and took decisions
knowing all facts intelligently.
Despite different Judges offering him
counsel at State expense, he at times voluntarily accepted and then refused to
accept them. When the witnesses were present or recalled, he refused to
examine them. It is thus apparent from the conduct of the Appellant that he
had taken up an uncooperative attitude in the proceedings and it was a clear
conscious decision on his part to ensure that the trial does not proceed
further. An informed consent to waive the right to a counsel has to be
inferred from the facts of the case. The Appellant was made aware of his
right to a counsel and offered repeatedly. He would exercise his choice as
per his requirements. Thus, on the facts of the case, it cannot be said that
there was a denial of the constitutional right of fair trial to the Appellant.
12.
For the aforesaid discussion, I find no illegality in the impugned
judgment of conviction and order on sentence. Appeal is dismissed.
(MUKTA GUPTA)
MAY 03, 2013
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