The High Court of Karnataka has sent two persons who had been convicted for the rape and murder of a minor girl back to the trial court because they were not provided with legal aid back then.
The High Court found that the advocate who was hired by the accused did not attend court regularly and also failed to cross-examine the witnesses prejudicing their case. In such a scenario, they should have been provided with free legal aid which was not provided by the Trial Court which on the other hand found them guilty and sentenced them to life imprisonment.
After spending nine years in jail, they will be put on trial once again.
The two criminal appeals were filed by Pratima Devi and Mohammad Munna Alam from Bihar. One more accused, Suresh Kumar, who is the husband of Pratima Devi, was acquitted by the Trial Court.
Pratima and Suresh Kumar were tenants who lived next to the house of the victim in Bengaluru. Mohammad allegedly had an illicit relationship with Pratima Devi. She allegedly lured the minor girl to the house where Mohammad allegedly committed “aggravated” sexual assault on the victim.
When the girl raised an alarm, Pratima Devi and Mohammad throttled the girl’s neck and murdered her. Her body was hidden under a cot. After Suresh Kumar returned home and found the body, fearing arrest, he and Pratima Devi locked the house and fled.
The victim’s parents suspecting foul play broke open the door of their neighbour two days later and found the child’s body.
The case was investigated by the Mahadevapura police in 2014. The three accused were charged under various sections of the Protection of Children from Sexual Offences Act (POCSO), Scheduled Cates and Scheduled Tribes (Prevention of Atrocities) Act and the Indian Penal Code (IPC).
The LXX Additional City Civil & Sessions Judge held the trial and on October 10, 2018 sentenced Pratima Devi and Mohammad to rigorous imprisonment for life under four counts including rape and murder.
Suresh Kumar was found guilty of only one charge; hiding and destroying evidence along with the other two. He completed his sentence of four years rigorous imprisonment.
In the High Court, the counsel for the two convicts argued that their defence counsel did not cross-examine the witness and therefore “they were not given fair trial, therefore, the judgement of conviction and order of sentence are vitiated.”
The division bench of Justice K S Mudagal and Justice K V Aravind in their recent judgement found the arguments on behalf of the accused valid.
“If a citizen is incapable of accessing legal service for justice on the ground of unaffordability or any other disability, it is the duty of the State to provide free legal aid. In the present case, the accused were in judicial custody. As per records, accused were migrant labourers. The Counsel engaged by them failed them. They were not in a position to reach him. That was sufficient to infer that the accused had no sufficient means to engage a pleader and they had the disability of being under incarceration”.
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The High Court said that it was the failure of the Trial Court. “Therefore, it was mandatory for the trial court to provide them free legal aid through the District Legal Services Authority. By such failure of the Trial Court, the accused had been convicted without effective defence or fair trial which infringes Article 21 of the Constitution of India.”
Remitting the matter back to the Trial Court, the High Court directed that “the Trial Court shall conclude the trial as expeditiously as possible at any rate within three months from the date of such production”.
