Naresh H. Patil, J.

1) The appellant Sunil Damodhar Gaikwad was charged for committing murder of his wife and two minor sons. He was charged for attempt to commit murder of his daughter, Prosecution Witness No.1 Gayatri. The family of the accused was staying in Dabhade Galli, Gevrai, District Beed. They had accommodation consisting of two rooms in the house which was belonged to his maternal aunt, Mangal. On 8th July 2008, it is alleged, that the appellant At about 3.30 a.m. in the mid night of 7th July 2008 and 8th July 2008 reached his house after purchasing a scissor. He separated two blades of the scissor. The appellant, it is alleged, first assaulted his wife by giving few blows. Thereafter he gave blows to his son Onkar, aged 9 years and other son, Akash, aged 7 years and thereafter assaulted PW 1 Gayatri. The appellant thereafter went to police station Gevrai and, it is alleged that, he made a statement before police regarding the incident happened. The police registered the offence under sections 302 and 307 of the Indian Penal Code vide crime No.172/2008. The appellant was arrested there itself.

The prosecution further alleged that the spot panchanama (Exhibit 18) was prepared. They found dead bodies of three persons lying in the house. Inquest panchanama of the dead bodies was prepared in presence of two panchas. The dead bodies Were removed to the hospital. PW 1 - Gayatri @ Pooja was found to be alive. PW 4 - Sakharbai who resides in the neighborhood opened the door of the house of the appellant from outside and went inside. After seeing the ghastly scene she cried for help. Anil, brother of the appellant and uncle of injured Gayatri, also reached the spot and he along with Baban took Gayatri to the hospital. Gayatri was treated in the hospital for 21 days. Her condition was serious. The clothes of the appellant having blood stains were seized and were sent for chemical analysis during the course of investigation. The disclosure statement under section 27 of the Indian Evidence Act of the appellant was recorded and pursuant to the same, certain clothes of the accused as well as blades of scissor kept under the mattress in the same room were recovered by the police on the same day of the incident. The investigating officer recorded statement of the shop keeper from whom the scissors was purchased by the appellant. Post mortem report was collected. The CA reports were also collected and thereafter charge sheet was filed.

2) The case was committed to the Sessions Court by the Magistrate on 23rd October 2008. Since the date of arrest i.e. 8th July 2008 the appellant was in the custody of police. Charge was framed on 12th February 2009 (Exhibit 5) under sections 302 and 307 of the Indian Penal Code. The appellant pleaded not guilty. As the appellant showed his inability to engage a private lawyer, by an order dated 29th January 2009 passed below Exhibit 1 in Sessions Case No. 118 of 2008, the learned Sessions Judge Beed allowed the request of the appellant for appointment of an advocate by way of legal aid, as according to the appellant, he did not have source of income to engage a private lawyer. The learned Sessions Judge thereafter appointed Advocate Sow Hema Pimpale to defend the appellant and directed the prosecution to furnish a set of relevant papers to the learned Advocate free of cost.

3) The prosecution filed an application under section 294 of the Code of Criminal Procedure calling upon the defence to admit or deny the genuineness of 13 documents at Exhibit 45/C.

From the original record we could not notice hat say was filed by the defence to this application filed by the prosecution.

4) The prosecution examined in all nine witnesses PW 1 was Gayatri, 12 years of age, is the daughter of the appellant. PW 2 is Kailas Bhimrao Jawanjal, who acted as a panch to the seizure panchanama of clothes of the deceased. PW 3 is Dr. Kranti Raut, Medical Officer, Gevrai. PW 4 is Sakharbai Sonwane. The appellant is nephew of this witness. This witness was residing in the neighbourhood of the appellant. PW 5 is Sunil Gaikwad, who was running a business of selling sewing machines and who had allegedly sold scissors to the appellant on 7th July 2008 at about 1.00 p.m. in the afternoon. PW 6 Subhash Sutar, a press report who was examined as panch of the inquest panchanama of the dead bodies found in the house of the appellant. PW 7 Raju Kharde is PSI of Gevrai Police Station. PW 8 is Manik Warale, who received case papers of the present crime. PW 9 in PI Sarwade. This witness claimed to have recorded statement of Gayatri @ Pooja, recorded statements of some other witness. This witness sent the accused for recording statement under section 164 of the Cr.P.C. thereafter he filed charge sheet against the appellant.

5) From the original record and proceedings we find that the learned counsel appearing for the defence had cross examined all the witnesses. By an application dated 2nd April 2009(Exhibit 31C) the prosecution called upon the defence to admit or deny the genuineness of the documents under section 294 of the Code of Criminal Procedure. These 7 documents are as follows:

1. C.A. Report of muddemal articles dated 10-2-2009.

2. C.A. Report of blood group of the accused dated 10-2-2009.

3. C.A. Report of blood group of the deceased Sangita Sunil Gaikwad dated 10-2-2009.

4. C.A. Report of blood group of the deceased Akash dated 16-2-2009.

5. C.A. Report of blood group of the deceased Omkar dated 16-2-2009.

6. C.A. Report of blood group of the injured P.W.No.1 Gayatri dated 10-2-2009.

7. Discharge card of Medical Treatment papers of the P.W.No.1 Gayatri (Total 22 pages) dated from 8-7-2008 to 25-7-2008.

The learned defence counsel filed her say as under:

Say

Production of C.A. report of the blood group of accused is fabricated hence denied and other CA reports denied.

Sd/-

Advocate for accused.

The next endorsement of the learned Advocate for the accused below the same reads thus:

All the documents are admitted.

M.L.C. of Gayatri.

Sd/-

Advocate for accused.

Below the same, the learned Judge passed order on 16-4-2009 which reads thus:

O.16-5-09

All documents are admitted by the defence. Hence exhibited.

Sd/-

Principal District Judge & Sessions Judge, Beed.

6) PW 7 Raju Kharde, PSI, Gevrai Police Station, recorded the statement of the appellant at 5.30 a.m. which was treated as First Information Report. He admitted the signature. He proved the said documents at Exhibit 29. Further investigation was handed over, according to the witness, to Police Inspector Sarwade.

7) PW 9 is Gopinath Sarode who was working as Police Inspector, Gevrai. This witness drew spot panchanama (Exh.18), collected blood from the spot, seized one white pillow cover, Articles 12, 14 and 13 in presence of panchas namely Sutar and Dabhade. The witness claims that at the instance of the appellant he recorded memorandum and seized two blades of the scissors from the house of the appellant. The Memorandum is at Exhibit 26. A panchanama was drawn (Exhibit 27) of the recovery of weapon (article 6). This witness directed a photographer to take photographs of the spot of offence. He recorded statements of Hirabai, Sakharbai, Baban Sonwane, Rajubai Sonwane, Sunil Gaikwad and sent the articles and blood samples of accused to the Chemical Analyser on 17th June 2008. This witness was transferred therefore further investigation was handed to PI Varale on 8th August 2008.

8) It appears that PW 8 Manikrao Varale stated that he sent the accused for recording his statement under section 164 of the Cr.P.C. The learned Sessions Judge in para 6 of the judgment observed that PW 8 PI sent the victim and witnesses to the S.E.O. for recording statement under section 164 of the Cr.P.C.

9) We have gone through the original record and proceedings. By judgment and order dated 7th May 2009 the learned Sessions Judge convicted the appellant for offence under section 302 of the Indian Penal Code and sentenced him to be hanged by neck till death. The appellant was convicted under section 307 of the Indian Penal Code and sentenced to suffer imprisonment for life. In view of the provisions of section 366 of the Code of criminal Procedure a reference was made to the High Court by the learned Sessions Judge for confirmation of the death sentence and for further execution of the order.

10) The appellant filed Criminal Appeal No. 280 of 2009 against the judgment and order of conviction and sentence. Advocate Shri. N.B. Suryawanshi was appointed for the appellant by this Court. The appeal was admitted on 9th June 2009 and it was directed to be heard along with Confirmation Case No.2 of 2009. Vide order dated 26-6-2009 the Superintendent, Central Prison Harsool was directed to produce the accused before this Court on 13-7-2009 at the time of hearing of the confirmation case. By order dated 13th July 2009 the Superintendent of Yerwada Jail was directed to keep the accused present on 27th July 2009 before this Court. By an order dated 4th August 2009 the Superintendent Yerwada Jail was directed to make necessary arrangement to secure presence of the accused before this Court on 17th August 2009. By order dated 17th August 2009 the appellant was produced before Court and after taking instructions from him the learned counsel Shri. Suryawanshi submitted that the appellant is willing for conducting the hearing of the appeal even in his absence. As the learned Public Prosecutor Shri. N.B. Khandare appearing for the State submitted that accused facing death sentences are normally kept in Yerwada prison and only for 2 to 3 days they are being kept in Central Prison, Harsool under the orders of the court, therefore, the Superintendent of Yerwada Jail was directed to lodge the appellant in Yerwada Jail until further orders.

11) The learned counsel Shri. N.B. Suryawanshi appearing for the appellant vehemently raised a preliminary issue that the appellant was not properly and effectively defended though the trial Court appointed an Advocate by way of legal aid to the appellant on his request. The learned counsel submitted that it is necessary in serious cases of this nature that the trial court appoints a lawyer having sufficient experience of conducting session cases of such serious magnitude and complexities. The learned counsel submitted that on this ground alone the judgment and order of conviction and sentence is required to be set aside by remanding the matter back for de novo trial. An application, bearing Criminal Application No.2542 of 2009 was filed on 22-7-2009 by the appellant, through counsel, with the following prayer:

(A) Allow this Criminal Application and call for a Confidential Report from the learned Sessions Judge, Beed as to whether the learned defence Counsel had an experience of conducting Sessions trials prior to this or how many Sessions Cases the learned Advocate who defended the applicant had conducted prior to the case of the applicant.

By an order dated 31st August 2009 we, therefore, directed the Principal District Judge Beed to submit a report to this Court on the issue (a) as to the number of years standing at the Bar of the learned Advocate who was appointed on behalf of the appellant to conduct the trial; (b) The number of session cases conducted by her prior to the conducting present case; and (c) the nature of sessions cases conducted, if any. We even sought information as to whether the learned Advocate was on the panel of the Legal Aid Committee at the relevant time. The Registrar (Judicial) of this Court called report from the learned Sessions Judge Beed. By an order dated 4th September 2009 we recorded that the learned Principal District Judge Beed Mr. M.L. Chauhan submitted a report dated 292009 through Registrar (Judicial) of the High Court. Both the counsel appearing for the respective parties also perused the said report. The learned Public Prosecutor who conducted the case in the trial Court has also placed a communication dated 3-9-2009 addressed to the Public Prosecutor, High Court. Both these report were marked as Exhibit X.

12) The learned Principal District Judge Beed in his report dated 2-9-2009 submitted that the learned advocate who was appointed to defend the appellant in the trial court was practicing since the year 1999 and had conducted three sessions cases prior to conducting present Sessions Case No.118 of 2008. The lawyer had conducted sessions cases under section 307, IPC, under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and under section 135 of the Electricity Act. It was further stated that the learned Advocate did not conduct any sessions case arising out of offence under section 302 of the ipc before conducting the present Sessions Case No.118 of 2008. The learned Principal District Judge stated further that his predecessor had constituted a panel of Advocates to defend poor accused persons by order dated 16th July 2008. This panel was continued up to 2nd June 2009. And a new Panel was prepared by the In-charge Principal District Judge. It is further stated by the learned Principal District Judge in this report that, in both these lists of Advocates name of the Advocate who was appointed for the appellant in the trial Court did not find place. The Principal District Judge, therefore, submitted that the lawyer who conducted the case was and is not on the panel of the Legal Aid Committee of Beed District and Sessions Court.

Along with the said report, the learned District Judge forwarded copy of office order dated 16th/21st July 2008 whereby the Principal District Judge Beed Shri. Nitin P Dalvi constituted a panel of Advocates to defend poor accused persons in criminal case whose annual income did not exceed Rs.50,000 for the year 2008.

13) By an order dated 2nd July 2009 the In charge Principal District Judge Mr. K.K. Kamble passed an identical order for the year 2009. We have perused both the orders. The learned District Government Pleader Beed by a communication addressed to the Public Prosecutor, High Court Bench at Aurangabad informed that the learned APP who conducted the trial was practicing since 14 years at Beed District Sessions Court and he was appointed on 24th August 2004 as Assistant Public Prosecutor. The APP had conducted many session cases and 12 arising of offences punishable under section 302 IPC prior to conducting the present case. We have perused the said communication.

14) Article 39-A of the Constitution speaks about free legal aid which reads thus:

Art.39A. The State shall secure that the operation of the legal system promotes justice, on the basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.

Section 304 of the Code of Criminal Procedure refers to legal aid to the accused at state expenses in certain cases which reads thus:

304. Legal aid to accused at State expense in certain cases. (1) Where, in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the Court that the accused has not sufficient means to engage a pleader, the Court shall assign a pleader for his defence at the expense of the State.

(2) The High Court may, with the previous approval of the State Government, make rule providing for

(a) the mode of selecting pleaders for defence under sub-section (1);

(b) the facilities to be allowed to such pleaders by the Courts;

(c) the fee payable to such pleaders by the Government, and generally, for carrying out the purposes of sub-section (1).

(3) The State Government may, by notification, direct that, as from such date as may be specified in the notification the provisions of sub-sections (1) and (2) shall apply in relation to any class of trials before other Courts in the State as they apply in relation to trials before the Courts of Session.

15) We have perused the relevant provisions of the Legal Services Authorities Act 1987. Chapter V of the Criminal Manual [issued by the High Court of Judicature (Appellate Side) Bombay for the guidance of the Criminal Courts and their subordinate officers] provides for procedure and conditions prescribed in regard to engagement of Advocate or Pleader appointed for the defence of persons accused of offences punishable with death. We have even perused the Rules framed by the State Government in exercise of the powers conferred by sub section (2) of Section 304 of the Code of Criminal Procedure. These Rules are called the Legal Aid to unrepresented accused person in cases before the Court of Sessions Rules, 1982.

16) With the help of the Registry of this Court we collected information from the adjoining districts regarding method and manner of formation of panel of Advocates to defend accused in such cases. We have perused these reports too. It was brought to our notice that a new scheme was prepared for providing legal aid which was called The Maharashtra State Legal Aid and Advice Scheme, 1979 .

17) From the material placed before us we find that in some districts for preparing panel of Advocates applications are invited from Bar Associations, from the concerned Advocates for working on the Legal Aid Panel having 5 years to 7 years practice in criminal and civil cases.

18) Under section 9 of the Legal Services Authorities Act, 1987, the District Legal Services Authorities are constituted for every District in the State to exercise powers and perform functions conferred on, or assigned to, the District Authority under the said Act.

19) The learned counsel appearing for the appellant placed reliance on the observations of the Apex Court in para 13 of the judgment reported in Kishore Chand v. State of Himachal Pradesh, 1990 Cri.L.J. 2289 which reads thus:

13. Though Art.39A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the bar who has either a little experience or no experience is assigned to defend him. It is high time that senior counsel practising in the court concerned, volunteer to defend such indigent accused as a part of their professional duty. If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency.

It is settled position that accused is required to be defended in such cases by advocate who had sufficient experience in the subject which he is called upon to handle.

The learned Advocate for the appellant referred to the decision in The State of Maharashtra v. Deepti Anil Devasthali, 2008 (4) Mah L.R. 476. In para 16 the Division Bench of this Court (Coram: Bilal Nazki and A.A. Kumbhkoni, JJ) quoted para 30 from the case Zahira Habibullah Sheikh (5) v. State of Gujarat, 2006 SCC 374 at page 393. Para 16 reads thus:

16. Recently the Supreme Court in the case of what is now known as the Best Bakery case had an occasion to extensively deal with the concept of a fair trial . True it is that the exercise in that regard was undertaken from the point of view of prosecution, but still the same will be relevant to appreciate the fairness of a criminal trial. Some of the relevant extracts from this judgment are given hereunder:

This extract is taken from Zahira Habibullah Shekh (5) v. State of Gujarat, at page 393:

30. Right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The operative principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.

35. This Court has often emphasized that in a criminal case the fate of the proceedings cannot always be left entirely in the hands of the parties, crime being public wrong in breach and violation of public rights and duties, which affect the whole community as a community and are harmful to the society in general. The concept of fair trial entails familiar triangulation of interests of the accused, the victim and the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice often referred to as the duty to vindicate and uphold the 'majesty of the law'. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators.

39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty stage-managed, tailored and partisan trial.

40. The fair trial for a criminal offence consists not only in technical observance of the frame, and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.

(Emphasis supplied)

The learned counsel placed reliance in the case State of Maharashtra v. Najir Ahmad Mohid Khan, 2006 (2) AIR Bom. R.457 (DB) (Coram: B.H. Marlapalle and Roshan Dalvi, JJ) which was a reference under section 366 of the Cr.P.C. for confirmation of death sentence. We have perused the said judgment.

20) In the facts of the present case learned counsel who was appointed to defend the appellant was practicing since 1999 having standing of about 9 years. The question before us is as to whether in such serious cases wherein prosecution alleged triple murder and a case of offence of attempting to commit murder the trial Court ought to have appointed a lawyer having sufficient experience in conducting sessions cases of this magnitude and complexities. We make it very clear at this stage itself that our observations shall not be construed as adverse comments on the efficiency of the learned Advocate who was appointed by the trial Court to defend the appellant. The learned Advocate had cross examined all the witnesses. In fact, the learned Sessions Judge in the judgment observed in para 29 that the learned Advocate Mrs. Pimpale, who accepted the brief from the Legal Aid Committee, had conducted with best of her ability and she was complemented by the learned Judge without any reservation.

21) The question raised by the counsel appearing for the appellant is of little wider magnitude and ramification. The issue relates to effective and meaningful legal aid to the accused in the facts of the present case. We have also noticed the manner in which the State had conducted the trial in establishing charge against the appellant.

22) From the entirety of the facts and circumstances we find that the submissions advanced by the learned counsel appearing for the appellant are required to be seriously considered by this Court that the appellant was not provided with effective and meaningful legal assistance.

23) The learned Public Prosecutor Shri. N.B. Khandare did not dispute whatever factual position which was brought on record. The learned Public Prosecutor submitted that in case this Court was of the opinion that the matter is required to be remanded back for cross-examination of some of the witnesses then the same should be done by maintaining the Examinations-in-chief of the prosecution witnesses as it is. In the submission of the Public Prosecutor even the judgment and order of conviction and sentence need not be quashed and set aside. By calling additional evidence as directed by this Court from the trial Court the Criminal Appeal and the Confirmation Case could be heard thereafter.

24) We have considered minutely the evidence on record more particularly the cross examinations of the witnesses conducted by the defence. In the facts of the case we are not of the opinion that this is a fit case for setting aside the judgment and order of conviction and sentence and remanding the matter back to the trial Court for holding a fresh trial. But certainly we are of the opinion that some of the witnesses already examined are required to be cross-examined afresh maintaining the earlier cross-examination conducted by the defence counsel. We do find that some of the witnesses, names of whom are enlisted in the charge sheet, are required to be summoned and be examined. These powers flow from even section 311 of the Code of Criminal Procedure.

25) It is settled that in cases of reference made under section 366 of the Criminal Procedure Code for confirmation of death sentence, considering the provisions of the Code of Criminal Procedure in relation to powers of the High Court conferred under sections 367, 368 of the code, the sessions trial could not be said to be concluded unless the reference is answered by the High Court. In other words, the proceedings of the sessions trial continue till the reference made to the High Court by the Sessions Court is finally disposed of.

26) In the facts of this case and the evidence brought on record we find it necessary and appropriate that a fair trial is required to be given in the cause of justice. The same would be necessary even to elucidate the truth and remove any prejudices caused to the party concerned.

27) This case provides us an opportunity to remind the learned District and Sessions Judges conducting sessions trials, more particularly relating to serious offences involving severe sentences, to appoint experienced lawyers who had conducted such cases in past. It is desirable that in such cases Senior Advocate practicing in the Court shall be requested to conduct the case himself or herself on behalf of the undefended accused or at least provide good guidance to the advocate who is appointed as amicus curiae or an Advocate from the legal aid panel to defend the case of the accused persons. Then only the effective and meaningful legal aid would be said to have been provided to the accused.

28) The District Legal Services Authorities would, therefore, take abundant precaution before finalizing panel of Advocates.

29) Having thus concluded that this is a fit case in which we should exercise jurisdiction under section 311 of the Code of the Criminal Procedure, we propose to direct examination of certain witnesses by the trial Court. We are even exercising our powers under section 367 of the Code of Criminal Procedure. It is established that in case of death sentence, the trial does not conclude with the termination of the proceedings in the Court of Sessions. The death sentence passed by the Court of Sessions is subject to confirmation by the High Court. A trial cannot be termed to have concluded till an executable sentence is passed by the Sessions Court.

30) In the light of the observations made above we pass following order.

31) The trial Court shall appoint an Advocate having adequate experience of conducting sessions trials of offences punishable under section 302 of the Indian Penal Code to appear and conduct the case on behalf of the accused. The learned counsel Sow Pimpale would be requested to attend and assist the counsel who would be appointed by the trial Court to conduct the case on behalf of the accused herein.

32) The Principal District and Sessions Judge Beed is directed to re-summon (1) PW 3 Dr. Kranti Sundarrao Raut; (2) PW 6 Subhash Achyutrao Sutar and summon (1) Shaikh Raju Sk. Majid, (2) Shivaji Narayan Chaware and (3) Gautam Baburao Potbhare, who are listed as witnesses in the chargesheet. The examination-in-chief of PW 3 Dr. Raut and PW 6 Subhash Sutar is maintained as it is. They are to be summoned for further cross-examination whereas the other three witnesses named above shall be summoned for holding their examinations-in-chief, cross-examination and reexamination, if any. The earlier cross-examination of PW 3 and PW 6 is maintained as it is. The trial Court is entitled to summon the concerned Investigating Officer. The trial Court is even entitled to frame additional questions in exercise of powers under section 313 of the Code of Criminal Procedure. After recording the evidence of these witnesses, the questions framed under section 313 Cr.P.C. shall be put to the accused and the answers given, if any, by the accused shall be recorded. The accused was an under trial detenue and he shall continue to be so. The accused shall be permitted to attend the Court on the dates of hearing of the case.

33) The trial Court shall complete the recording of evidence of the prosecution witnesses and the additional statement of the accused under Section 313 of the Code of Criminal Procedure, as directed above, within three months from the date of receipt of the writ of this Court. After completion of this exercise the trial Court is directed to remit the said record back to the High Court. The confirmation case and the criminal appeal would be heard on its own merits afresh after receipt of the said record. Record and Proceedings be sent back forthwith.