Holding

The conviction was unsustainable because the prosecution failed to prove guilt beyond reasonable doubt, the material incriminating facts were not put to the accused under Section 313, and the State did not provide adequate legal aid, leading to the appellant's acquittal.

Summary

The appellant was accused of raping and murdering a ten‑year‑old girl in 2009, with the prosecution relying primarily on the testimony of the victim's seven‑year‑old cousin and recovered clothing items. The trial court convicted him under IPC sections 376, 302, 201 and the SC/ST Act, imposing the death penalty, which the High Court later reduced to life imprisonment. On appeal, the Supreme Court held that the sole eyewitness's evidence was not of sterling quality, the recovery of the clothing was inadequately proved, and material incriminating facts were not put to the accused under Section 313 of the CrPC, violating his right to a fair trial. The Court also found that the State failed to provide timely and competent legal aid, breaching Articles 21 and 39A of the Constitution. Consequently, the Court set aside the conviction and acquitted the appellant, while issuing comprehensive directions on the role of public prosecutors and the appointment of legal‑aid counsel. The appeal was allowed and the bail bonds were cancelled.

Issues considered

The correctness of the conviction and death sentence under IPC sections 376, 302, 201 and the SC/ST Act.
Whether the testimony of the minor cousin, as the sole eyewitness, meets the standard of reliable evidence.
Whether the recovery of the victim's clothing was properly proved and admissible.
Whether the trial complied with the requirements of Section 313 CrPC by putting all material circumstances to the accused.
Whether the State fulfilled its constitutional duty to provide effective legal aid to the accused.

Legislation cited

Bharatiya Nagarik Suraksha Sanhita, 2023s. 313(5), s. 340, s. 341, s. 351(5)
Code of Criminal Procedure, 1973s. 303, s. 304, s. 313, s. 340, s. 341
Indian Evidence Act, 1972s. 27
Indian Penal Code, 1860s. 201, s. 302, s. 376
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989s. 3(2)(v)

Subjects

Role of Public ProsecutorAppointment of legal aid lawyersRape and murderImposition of death sentenceEyewitnessLast seen togetherRecovery of articlesEstablished beyond reasonable doubtExamination u/s.313 Cr.P.CMaterial circumstances appearing in evidenceDefence evidenceIrregularityIncarcerationFailure to put incriminating material to accused in his examination u/s.313 CrPCDeath penaltyCapital punishmentAssistance of public prosecutorFailure to provide legal aid to accusedRight to get legal aidRight to be defended by a pleader of his choiceEspouse the cause of accused free of costsState to provide timely and quality of legal aid to accusedDirections regarding role of Public Prosecutor and appointment of legal aid lawyers

Judgment

[2024] 12 S.C.R. 335 : 2024 INSC 919

Ashok
v.
State of Uttar Pradesh
(Criminal Appeal No. 771 of 2024)
02 December 2024
[Abhay S. Oka,* Ahsanuddin Amanullah and
Augustine George Masih, JJ.]

Issue for Consideration
Matter pertains to the correctness of the order of conviction and
sentence against the appellant, for the offences punishable u/ss.376,
302, 201 IPC as also SC and ST Act 1989; and as regards the
role of the Public Prosecutor and appointment of legal aid lawyers.

Headnotes†
Penal Code, 1860 – ss.376, 302, 201 – Rape and murder –
Prosecution case that appellant committed rape and murder
of a ten year old girl – Victim’s cousin-witness to the incident,
and narrated the same to the victim’s father – Dead body
found hidden at the place of incident – Appellant fled from the
spot when questioned by the victim’s father and thereafter,
FIR was registered – Order of conviction and imposition
of death sentence against the appellant, for the offences
punishable u/ss.376, 302, 201 as also the 1989 Act – High
Court upheld the conviction, however reduced the sentence
to life imprisonment – Correctness:
Held: Evidence of victim’s cousin, the only eyewitness, cannot be
held to be of sterling quality – It is unsafe to base conviction only
on his testimony – At the most, it can be the evidence of the last
seen together – As regards, the recovery of articles at instance of
the appellant, the prosecution failed to prove that the recovery was
from a particular place – Thus, evidence of recovery to be kept out
of consideration – Appellant's guilt beyond reasonable doubt not
established – As regards, the examination of the appellant u/s.313
Cr.P.C., material circumstances appearing in evidence against the
appellant, version of the main prosecution witnesses not been put
to him – Unless all material circumstances appearing against him

* Author
336 [2024] 12 S.C.R.

Digital Supreme Court Reports

in evidence are put to the accused, he cannot decide whether he
wants to lead any defence evidence – Even the date and place
of the crime allegedly committed by the appellant not put to the
appellant – Thus, the appellant was prejudiced – Even assuming
that failure to put material to the appellant in his examination was
an irregularity, it cannot be cured by remanding the case to the
trial court, since the incident is fifteen and a half years old and
after such a long gap, it would be unjust to ask the appellant to
explain the circumstances and material specifically appearing
against him in the evidence – Moreover, the appellant had been
incarcerated for about twelve years and nine months before he
was released on bail – Even assuming that the evidence of eye
witness can be believed, the appellant entitled to acquittal on
the ground of the failure to put incriminating material to him in
his examination u/s.313 CrPC – Both the trial court and High
Court overlooked non-compliance with the requirements of s.313
CrPC – Shockingly, the trial court imposed the death penalty in a
case which ought to have resulted in acquittal – Imposing capital
punishment in such a case shocks the conscience of this Court –
There was failure of the State to provide timely and quality of
legal aid to the appellant – Thus, impugned judgments and orders
set aside and the appellant is acquitted – Directions regarding
the role of the Public Prosecutor and appointment of legal aid
lawyers issued – Code of Criminal Procedure, 1973 – Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
[Paras 12, 13, 14-17, 19, 21-24]

Code of Criminal Procedure, 1973 – s.313(5) – Power to examine
accused – Role of the public prosecutor:
Held: Under sub-Section (5) of s.313 (sub-Section (5) of s.351 of
Bharatiya Nagarik Suraksha Sanhita, 2023), the court is entitled to
secure the assistance of the public prosecutor and the advocate
representing the accused to prepare the questions to be put in the
examination u/s.313 – Public Prosecutor has to play an active role
in ensuring that every trial is conducted in a fair manner and in
accordance with the law – It is the Public Prosecutor's duty to invite
the Court's attention to the requirement of putting all incriminating
material to the accused – Thus, the Public Prosecutor under an
obligation to remain present when the examination of the accused
is made to assist the Court – Bharatiya Nagarik Suraksha Sanhita,
2023. [Para 18]
[2024] 12 S.C.R. 337

Ashok v. State of Uttar Pradesh

Constitution of India – Arts.21 and 39A – Equal justice and free
legal aid – Failure to provide legal aid to the accused – Effect:

Held: Right to get legal aid is a fundamental right of the accused,
guaranteed by Art.21 – Even u/s.303 CrPC, every accused has
a right to be defended by a pleader of his choice – Under s.304
CrPC, it is the duty of the Court to ensure that a legal aid lawyer
is appointed to espouse the cause of the accused free of costs –
When an accused has either not engaged an advocate or does
not have sufficient means to engage an advocate, it is the trial
court's duty to inform the accused of his right to obtain free legal
aid, which is a right covered by Art.21 – ss.340 and 341 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 correspond to ss.303
and 304 CrPC – On facts, there was failure of the State to provide
timely and quality of legal aid to the appellant – Code of Criminal
Procedure, 1973 – Bharatiya Nagarik Suraksha Sanhita, 2023.
[Paras 19, 20]

Criminal trial – Role of the Public Prosecutor and appointment
of legal aid lawyers – Issuance of directions regarding the
role of the Public Prosecutor and appointment of legal aid
lawyers:

Held: (i) Duty of the Court to ensure that proper legal aid is
provided to an accused;

(ii) Duty of Public Prosecutor to point out to the Court
the requirement of providing accused free legal aid;

(iii) Public Prosecutor to request the Court not to proceed
without offering to provide legal aid to the accused;

(iv) Duty of the Public Prosecutor to assist the trial court
in recording the accused's statement u/s. 313 CrPC.
If the Court omits any material circumstance against
the accused, the Public Prosecutor must bring it to the
Court's notice and assist in framing questions. It is the
Public Prosecutor's duty to prevent trial infirmities that
may prejudice the accused.;

(v) Accused entitled to free legal aid at all material stages,
starting from remand, including bail petitions;
338 [2024] 12 S.C.R.

Digital Supreme Court Reports

(vi) Accused to be made aware of his right to get free
legal aid at all material stages;
(vii) For all the cases where there is a possibility of a
life sentence or death sentence, appoint legal aid
advocates with at least 10 years of criminal practice,
and in other cases the accused entitled to a legal
aid advocate who has good knowledge of the law
and experience of conducting trials on the criminal
side. Legal Services Authorities at all levels to give
proper training to the newly appointed legal aid
advocates;
(viii) Legal Services Authorities to monitor the work of the
legal aid advocate and to ensure that they attend the
court regularly and punctually when the cases entrusted
to them are fixed;
(ix) It is necessary to ensure that the same legal aid
advocate is continued throughout the trial unless there
are compelling reasons to do so;
(x) In cases of serious nature and complicated legal and
factual issues, the Court may appoint a senior member
of the Bar who has a vast experience of conducting
trials;
(xi) Accused is entitled to free trial and if effective legal aid
is not made available to an accused it would amount
to infringement of his fundamental rights guaranteed
by Art. 21; and
(xii) Legal aid must be effective. Advocates appointed to
espouse the cause of the accused must have good
knowledge of criminal laws, law of evidence and
procedural laws. If the legal aid advocate provided
to an accused is not competent enough to conduct
the trial efficiently, the rights of the accused will be
violated. [Para 23]

Case Law Cited
Raj Kumar v. State (NCT of Delhi) [2023] 5 SCR 754 : 2023 SCC
OnLine SC 609; Shivaji Sahabrao Bobade v. State of Maharashtra
[1974] 1 SCR 489 : (1973) 2 SCC 793; Hussainara Khatoon (IV) v.
[2024] 12 S.C.R. 339

Ashok v. State of Uttar Pradesh

Home Secy., State of Bihar [1979] 3 SCR 1276 : (1980) 1 SCC 98;
M.H. Hoskot v. State of Maharashtra [1979] 1 SCR 192 : (1978) 3
SCC 544; Anokhilal v. State of M.P. [2019] 18 SCR 1196 : (2019)
20 SCC 196 – referred to.

List of Acts
Penal Code, 1860; Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989; Code of Criminal Procedure,
1973; Bharatiya Nagarik Suraksha Sanhita, 2023.

List of Keywords
Role of Public Prosecutor; Appointment of legal aid lawyers;
Rape and murder; Imposition of death sentence; Eyewitness;
Last seen together; Recovery of articles; Established beyond
reasonable doubt; Examination u/s.313 Cr.P.C; Material
circumstances appearing in evidence; Defence evidence;
Irregularity; Incarceration; Failure to put incriminating material to
accused in his examination u/s.313 CrPC; Death penalty; Capital
punishment; Assistance of public prosecutor; Failure to provide
legal aid to accused; Right to get legal aid; Right to be defended
by a pleader of his choice; Espouse the cause of accused free of
costs; State to provide timely and quality of legal aid to accused;
Directions regarding role of Public Prosecutor and appointment
of legal aid lawyers.

Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 771
of 2024

From the Judgment and Order dated 28.11.2013 of the High Court
of Judicature at Allahabad in CC No. 170 of 2013

Appearances for Parties
M. Shoeb Alam, Sr. Adv./Amicus Curiae, Talha Abdul Rahman,
Amicus Curiae, M Shaz Khan, Sudhanshu Tewari, Faizan Ahmad,
Advs. for the Appellant.

K Parameshwar, Sr. A.A.G., Ms. Sakshi Kakkar, Advs. for the
Respondent.
340 [2024] 12 S.C.R.

Digital Supreme Court Reports

Judgment / Order of the Supreme Court

Judgment

Abhay S. Oka, J.

FACTUAL ASPECT
1. This is a very unfortunate case. The victim of the offence was ten
years old at the time of the incident. On 27th May 2009, around
9.00 a.m., she and her first cousin, PW-2, had gone to a pasture
to graze her goats. The age of PW-2 was seven years at that
time. As the victim was thirsty, she went near a tubewell cabin.
The appellant-accused was working as an operator of the tubewell
appointed by the owner of the tubewell. The victim requested the
appellant to provide drinking water. The allegation of the prosecution
is that, with evil intentions, the appellant took her inside the cabin.
He committed rape on her and, after that, murdered her. According
to the prosecution’s case, PW-2 saw the appellant forcibly taking
the victim inside the cabin and raping her. By 11.00 a.m., PW-2
returned to PW-1, the victim’s father. PW-1 was the uncle of PW- 2.
After PW-2 narrated the story to PW-1, he went to the tubewell
cabin to find the victim and found the dead body of the victim
hidden in a haystack in that cabin. On being questioned by PW-1,
the appellant fled from the spot and thereafter, PW-1 registered
the First Information Report.
2. The Trial Court, by judgment and order dated 24 th December
2012, convicted the appellant for the offences punishable under
Sections 376, 302 and 201 of the Indian Penal Code (for short, ‘the
IPC’). The Trial Court also convicted the appellant under the provisions
of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (for short, ‘the SCST Act’). The
Trial Court imposed capital punishment.
3. The High Court heard the reference under Section 366 of the Code
of Criminal Procedure, 1973 (for short, ‘the CrPC’) with an appeal
preferred by the appellant. Though the High Court confirmed the
conviction, the death penalty was set aside and the appellant was
sentenced to undergo life imprisonment for the remainder of his
natural life subject to the exercise of powers of grant of remission
or grant of clemency by the constitutional functionaries.
[2024] 12 S.C.R. 341

Ashok v. State of Uttar Pradesh

4. The present appeal is against the judgments mentioned above.
By order dated 20 th May 2022, this Court granted bail to the
appellant after noting that he had undergone actual incarceration
for about 13 years. We may note here that earlier, learned counsel
Shri M Shoeb Alam was appointed as amicus curiae to espouse the
cause of the appellant. After his designation as a senior advocate,
he continued to assist this Court. Shri Talha Abdul Rahman,
Advocate-on-Record, was appointed amicus curiae to assist the
learned senior counsel.

SUBMISSIONS
5. The learned senior counsel appearing for the appellant has
taken us through the evidence of the prosecution witnesses.
Inviting our attention to evidence of PW-1, Heera Lal, the father
of the victim, he pointed out that the version of the witness in his
examination-in-chief is based on what was reported to him by
PW-2, the minor witness. But, if we compare the depositions of
PW-2 with the examination-in-chief of PW-1, there is a significant
variance between the version of PW-2 as stated by PW-1 and what
PW-2 stated in his examination-in-chief. He pointed out that in the
cross-examination, PW-1 has tried to improve upon his version by
trying to depose consistently with the version of PW-2. Inviting our
attention to the proceedings before the Trial Court, he submitted
that when the examination-in-chief of the PW-1 was recorded, the
appellant-accused was not represented by any advocate. Therefore,
the cross-examination was adjourned to enable the appellant to engage
an advocate. An advocate was appointed to espouse his cause after
the examination-in-chief of PW-1 was recorded. The appellant was not
represented by any advocate at the time of the framing of the charge.
6. Coming to the depositions of PW-2, the learned senior counsel for
the appellant urged that considering the difference between the
version of PW-1 in his examination-in-chief and cross-examination, the
possibility of PW-2 being tutored cannot be ruled out. He submitted
that evidence of PW-2 was recorded two and half years after the
incident, and on the date of the recording of evidence, his age was
ten years. Possibly, he was tutored. He pointed out that the evidence
of PW-2 was not of sterling quality and, therefore, cannot be the
sole basis for the conviction, especially when evidence regarding
recovery is doubtful.
342 [2024] 12 S.C.R.

Digital Supreme Court Reports

7. The learned senior counsel appearing for the appellant as amicus
curiae pointed out that the alleged recovery of the victim’s slippers
and underwear, at the instance of the appellant, is highly doubtful
as the place and time of recovery have not been mentioned in the
recovery memo. The prosecution did not examine the two witnesses
to the recovery memo. He pointed out that the prosecution made
no attempt to prove that blood stains on the undergarments of the
appellant were that of the blood of the victim. No analysis was made.
8. More importantly, he submitted that the incriminating circumstances
brought on record in the evidence against the appellant were not put
to him in his examination under Section 313 of the CrPC. Therefore,
the appellant’s right of defence was seriously prejudiced. He relied
upon a decision of this Court in the case of Raj Kumar v. State
(NCT of Delhi).1
9. Shri K. Parameshwar, the learned senior counsel appearing for the
State, supported the impugned judgments. However, he has assisted
us on the issue of legal aid to the accused.

CONSIDERATION OF SUBMISSIONS
10. In the examination-in-chief, PW-1 stated that PW-2 witnessed the
commission of rape and murder of the victim. According to the
witness, PW-2 told him that as the door of the room was open while
he was standing outside, he saw the act of commission of rape and
murder. He deposed that after the PW-2 told him about the incident,
he rushed along with two or three other persons to the spot. He
found that the appellant was present there, and he questioned the
appellant. Thereafter, the appellant fled. He tried to search for the
victim. He found the dead body of the victim under the haystack
in the room. It is pertinent to note that PW-2 had informed PW-1
that the appellant was the offender. Though two to three persons
accompanied PW-1, he did not attempt to apprehend the accused
and take him to the police. The conduct of PW-1 of not apprehending
the appellant, though he was present, is unnatural.
11. Examination-in-chief of PW-1 was recorded by learned Trial Judge
on 11th May 2011. At the end of the examination-in-chief, the learned
Trial Judge recorded that the case was adjourned at the oral request

1 [2023] 5 SCR 754 : 2023 SCC OnLine SC 609
[2024] 12 S.C.R. 343

Ashok v. State of Uttar Pradesh

of the appellant to engage a counsel. Before the cross-examination
was recorded on 2nd July 2011, an advocate was appointed to espouse
the appellant’s cause. The cross-examination of PW-1 was recorded
on 2nd July 2011 and 24th September 2011. The witness reiterated
that he had narrated the facts stated to him by PW-2.
12. As far as PW-2 is concerned, he was 10 years old when his
deposition was recorded. Many preliminary questions were put to
the witness by the learned Trial Judge. After satisfying himself that
the witness was able to understand the questions and give a reply
to the same, an oath was administered to him. His version in the
examination-in-chief is that the appellant gave drinking water to him
and the victim. After drinking the water, when they tried to leave, the
appellant caught the victim from behind, took off her undergarments,
and the victim started screaming. He did not depose that he had
seen the commission of rape and murder by the appellant. To this
extent, the version of PW-2, as told to PW-1, is entirely different.
PW-1 claims that PW-2 reported to him that he had seen the
appellant committing rape and murder from outside the cabin. PW-8,
the investigating officer, stated that he had recorded the Statement
of PW-2 on 18th June 2009. Thus, there was a delay of 21 days in
recording his statement, though the FIR recorded that this witness
had seen the appellant committing the crime. There is some dispute
about whether the witness’s statement recorded under Section 161
of CrPC was produced with the charge sheet. The learned senior
counsel appointed as amicus pointed out that it is not on the record
of the Trial Court. In the list of witnesses mentioned in the charge
sheet, the name of PW-2 has not been included. Therefore, for
all the reasons discussed above, the evidence of PW-2, the only
eyewitness, cannot be held to be of sterling quality. It is unsafe to
base conviction only on his testimony. Even otherwise, taking his
testimony as correct, the evidence of the PW-2 can, at the highest,
be the evidence of the last seen together.
13. Therefore, it is necessary to consider the other circumstantial evidence.
In this case, the recovery of the victim’s slipper and underwear is
alleged at the appellant’s instance. We have perused the recovery
memo signed by the circle officer and two independent witnesses. The
prosecution did not examine the two independent witnesses. Though
the date of recovery is mentioned in the memo, the time and, most
importantly, the place of recovery are not mentioned. Therefore, it
344 [2024] 12 S.C.R.

Digital Supreme Court Reports

cannot be said that pursuant to the statement made by the appellant,
in accordance with Section 27 of the Indian Evidence Act, 1972 (for
short, ‘the Evidence Act’), the articles were found at the place stated
by the appellant. Hence, the prosecution failed to prove that the
recovery was from a particular place. Thus, evidence of recovery
will have to be kept out of consideration. The recovery of the articles
at the instance of the appellant is a very important circumstance in
the chain of circumstances. It is not proved. Hence, the appellant’s
guilt beyond reasonable doubt has not been established.

EXAMINATION OF THE APPELLANT UNDER SECTION 313
OF CR.P.C
14. Now, we come to the appellant’s statement, recorded per Section 313
of the CrPC. Only three questions were put to the appellant. In
the first question, the names of ten prosecution witnesses were
incorporated, and the only question asked to the appellant was what
he had to say about the testimony of ten prosecution witnesses. In
the second question, all the documents produced by the prosecution
were referred, and a question was asked, what the appellant has
to say about the documents. In the third question, it was put to the
appellant that knowing the fact that the victim belongs to a scheduled
caste, he caused her death after raping her and concealed her dead
body, and he was asked for his reaction to the same. What PW-1 and
PW-2 deposed against the appellant was not put to the appellant. The
contents of the incriminating documents were not put to the appellant.
15. In the case of Raj Kumar,1 in paragraph 17, this Court has summarised
the law laid down by this Court from time to time on Section 313 of
the CrPC. Paragraph 17 reads thus:
“17. The law consistently laid down by this Court can be
summarized as under:
(i) It is the duty of the Trial Court to put each
material circumstance appearing in the evidence
against the accused specifically, distinctively and
separately. The material circumstance means
the circumstance or the material on the basis of
which the prosecution is seeking his conviction;
[2024] 12 S.C.R. 345

Ashok v. State of Uttar Pradesh

(ii) The object of examination of the accused under
Section 313 is to enable the accused to explain any
circumstance appearing against him in the evidence;
(iii) The Court must ordinarily eschew material
circumstances not put to the accused from
consideration while dealing with the case of the
particular accused;
(iv) The failure to put material circumstances to the
accused amounts to a serious irregularity. It will
vitiate the trial if it is shown to have prejudiced the
accused;
(v) If any irregularity in putting the material
circumstance to the accused does not result in
failure of justice, it becomes a curable defect.
However, while deciding whether the defect can
be cured, one of the considerations will be the
passage of time from the date of the incident;
(vi) In case such irregularity is curable, even the appellate
court can question the accused on the material
circumstance which is not put to him; and
(vii) In a given case, the case can be remanded to
the Trial Court from the stage of recording the
supplementary statement of the concerned accused
under Section 313 of CrPC.
(viii) While deciding the question whether prejudice has
been caused to the accused because of the omission,
the delay in raising the contention is only one of the
several factors to be considered.”
This Court based its decision on several decisions, including the
decision in the case of Shivaji Sahabrao Bobade v. State of
Maharashtra.2 This Court relied upon what was held in paragraph 16
of the said case. Paragraph 16 of the said case reads thus:

2 [1974] 1 SCR 489 : (1973) 2 SCC 793
346 [2024] 12 S.C.R.

Digital Supreme Court Reports

“16. ……………. It is trite law, nevertheless fundamental,
that the prisoner’s attention should be drawn to every
inculpatory material so as to enable him to explain
it. This is the basic fairness of a criminal trial and
failures in this area may gravely imperil the validity of
the trial itself, if consequential miscarriage of justice
has flowed. However, where such an omission has
occurred it does not ipso facto vitiate the proceedings
and prejudice occasioned by such defect must be
established by the accused. In the event of evidentiary
material not being put to the accused, the court must
ordinarily eschew such material from consideration.
It is also open to the appellate court to call upon the
counsel for the accused to show what explanation the
accused has as regards the circumstances established
against him but not put to him and if the accused is
unable to offer the appellate court any plausible or
reasonable explanation of such circumstances, the
Court may assume that no acceptable answer exists
and that even if the accused had been questioned at
the proper time in the trial court he would not have
been able to furnish any good ground to get out of
the circumstances on which the trial court had relied
for its conviction. In such a case, the Court proceeds
on the footing that though a grave irregularity has
occurred as regards compliance with Section 342,
CrPC, the omission has not been shown to have caused
prejudice to the accused. In the present case, however,
the High Court, though not the trial court has relied upon
the presence of blood on the pants of the blood group of
the deceased. We have not been shown what explanation
the accused could have offered to this chemical finding
particularly when we remember that his answer to the
question regarding the human blood on the blade of the
knife was “I do not know”. Counsel for the appellants could
not make out any intelligent explanation and the “blood”
testimony takes the crime closer to the accused. However,
we are not inclined to rely over much on this evidentiary
circumstance, although we should emphasise how this
[2024] 12 S.C.R. 347

Ashok v. State of Uttar Pradesh

inadvertance of the trial court had led to a relevant fact
being argued as unavailable to the prosecution. Great care
is expected of Sessions Judges who try grave cases to
collect every incriminating circumstance and put it to the
accused even though at the end of a long trial the Judge
may be a little fagged out.”
(emphasis added)
In a given case, the witnesses may have deposed in a language not
known to the accused. In such a case, if the material circumstances
appearing in evidence are not put to the accused and explained to
the accused, in a language understood by him, it will cause prejudice
to the accused.
16. In the present case, there is no doubt that material circumstances
appearing in evidence against the appellant have not been put to
him. The version of the main prosecution witnesses PWs-1 and 2 was
not put to him. The stage of the accused leading defence evidence
arises only after his statement is recorded under Section 313 of
the CrPC. Unless all material circumstances appearing against him
in evidence are put to the accused, he cannot decide whether he
wants to lead any defence evidence. In this case, even the date
and place of the crime allegedly committed by the appellant were
not put to the appellant. What was reportedly seen by PW-2 was
not put to the appellant in his examination. Therefore, the appellant
was prejudiced. Even assuming that failure to put material to the
appellant in his examination is an irregularity, the question is whether
it can be cured by remanding the case to the Trial Court.
17. The date of occurrence is of 27th May 2009. Thus, the incident is
fifteen and a half years old. After such a long gap of fifteen and
half years, it will be unjust if the appellant is now told to explain
the circumstances and material specifically appearing against him
in the evidence. Moreover, the appellant had been incarcerated
for about twelve years and nine months before he was released
on bail. Therefore, considering the long passage of time, there is
no option but to hold that the defect cannot be cured at this stage.
Even assuming that the evidence of PW-2 can be believed, the
appellant is entitled to acquittal on the ground of the failure to put
incriminating material to him in his examination under Section 313
of the CrPC. We are surprised to note that both the Trial Court and
348 [2024] 12 S.C.R.

Digital Supreme Court Reports

High Court have overlooked non-compliance with the requirements
of Section 313 of the CrPC. Shockingly, the Trial Court imposed the
death penalty in a case which ought to have resulted in acquittal.
Imposing capital punishment in such a case shocks the conscience
of this Court.

ROLE OF THE PUBLIC PROSECUTOR
18. Under sub-Section (5) of Section 313 of CrPC (sub-Section (5) of
Section 351 of Bharatiya Nagarik Suraksha Sanhita, 2023), the Court
is entitled to secure the assistance of the public prosecutor and the
advocate representing the accused to prepare the questions to be
put in the examination under Section 313. A Public Prosecutor has
to play an active role in ensuring that every trial is conducted in a
fair manner and in accordance with the law. Hence, it is the Public
Prosecutor’s duty to invite the Court’s attention to the requirement
of putting all incriminating material to the accused. Therefore, the
Public Prosecutor is under an obligation to remain present when the
examination of the accused is made to assist the Court.

FAILURE TO PROVIDE LEGAL AID TO THE ACCUSED
19. After having perused the record of the case, we found a very disturbing
feature. It is about the failure of the State to provide timely legal aid
to the appellant. The other issue is about the quality of legal aid.
Apart from provisions of Article 21 and Article 39A of the Constitution
of India, the law on the issue of the right to legal aid has been
evolved by this Court through its landmark decisions. This Court’s first
well-known decision is in the case of Hussainara Khatoon (IV) v.
Home Secy., State of Bihar.3 In Paragraph 7, this Court held thus:
“7. We may also refer to Article 39-A the fundamental
constitutional directive which reads as follows:
“39-A. Equal justice and free legal aid.—The State
shall secure that the operation of the legal system
promotes justice, on a 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

3 [1979] 3 SCR 1276 : (1980) 1 SCC 98
[2024] 12 S.C.R. 349

Ashok v. State of Uttar Pradesh

not denied to any citizen by reason of economic or
other disabilities.”
(emphasis added)
This article also emphasises that free legal service is
an unalienable element of “reasonable, fair and just”
procedure for without it a person suffering from economic
or other disabilities would be deprived of the opportunity
for securing justice. The right to free legal services
is, therefore, clearly an essential ingredient of
“reasonable, fair and just”, procedure for a person
accused of an offence and it must be held implicit in
the guarantee of Article 21. This is a constitutional
right of every accused person who is unable to engage
a lawyer and secure legal services on account of
reasons such as poverty, indigence or incommunicado
situation and the State is under a mandate to provide
a lawyer to an accused person if the circumstances of
the case and the needs of justice so require, provided
of course the accused person does not object to the
provision of such lawyer. We would, therefore, direct that
on the next remand dates, when the undertrial prisoners,
charged with bailable offences, are produced before the
Magistrates, the State Government should provide them
a lawyer at its own cost for the purpose of making an
application for bail, provided that no objection is raised
to such lawyer on behalf of such undertrial prisoners and
if any application for bail is made, the Magistrates should
dispose of the same in accordance with the broad outlines
set out by us in our judgment dated February 12, 1979.
The State Government will report to the High Court of
Patna its compliance with this direction within a period
of six weeks from today.”
(emphasis added)
The second decision is in the case of M.H. Hoskot v. State of
Maharashtra.4 In paragraphs 14 and 25 of the decision, this Court
held thus:

4 [1979] 1 SCR 192 : (1978) 3 SCC 544
350 [2024] 12 S.C.R.

Digital Supreme Court Reports

“14. The other ingredient of fair procedure to a prisoner,
who has to seek his liberation through the court
process is lawyer’s services. Judicial justice, with
procedural intricacies, legal submissions and critical
examination of evidence, leans upon professional
expertise; and a failure of equal justice under the law
is on the cards where such supportive skill is absent
for one side. Our judicature, moulded by Anglo-American
models and our judicial process, engineered by kindred
legal technology, compel the collaboration of lawyer-power
for steering the wheels of equal justice under the law. Free
legal services to the needy is part of the English criminal
justice system. And the American jurist, Prof. Vance of
Yale, sounded sense for India too when he said: [ Justice
and Reform, Earl Johnson, Jr. p. 11]
“What does it profit a poor and ignorant man that he is
equal to his strong antagonist before the law if there is no
one to inform him what the law is? Or that the courts are
open to him on the same terms as to all other persons when
he has not the wherewithal to pay the admission fee?” ”
(emphasis added)
“25. If a prisoner sentenced to imprisonment, is virtually
unable to exercise his constitutional and statutory right of
appeal, inclusive of special leave to appeal, for want of legal
assistance, there is implicit in the Court under Article 142,
read with Articles 21 and 39-A of the Constitution, power
to assign counsel for such imprisoned individual “for doing
complete justice”. This is a necessary incident of the right
of appeal conferred by the Code and allowed by Article 136
of the Constitution. The inference is inevitable that this
is a State’s duty and not Government’s charity. Equally
affirmative is the implication that while legal services
must be free to the beneficiary, the lawyer himself has
to be reasonably remunerated for his services. Surely,
the profession has a public commitment to the people but
mere philanthropy of its members yields short mileage in
the long run. Their services, especially when they are on
behalf of the State must be paid for. Naturally, the State
[2024] 12 S.C.R. 351

Ashok v. State of Uttar Pradesh

concerned must pay a reasonable sum that the court may
fix when assigning counsel to the prisoner. Of course,
the court may judge the situation and consider from all
angles whether it is necessary for the ends of justice to
make available legal aid in the particular case. In every
country where free legal services are given it is not done
in all cases but only where public justice suffers otherwise.
That discretion resides in the court.”
(emphasis added)
This issue was again dealt with by a Bench of three Judges in the
case of Anokhilal v. State of M.P..5 In this decision, this Court
revisited the law on this aspect. In paragraph 11, this Court relied
upon the decision in the case of Hussainara Khatoon (IV).3 In
paragraph 20, this Court summarised the principles laid down from
time to time. Paragraph 20 reads thus:
“20. The following principles, therefore, emerge from the
decisions referred to hereinabove:
20.1. Article 39-A inserted by the 42nd Amendment to the
Constitution, effected in the year 1977, provides for free
legal aid to ensure that opportunities for securing justice are
not denied to any citizen by reason of economic or other
disabilities. The statutory regime put in place including the
enactment of the Legal Services Authorities Act, 1987 is
designed to achieve the mandate of Article 39-A.
20.2. It has been well accepted that right to free legal
services is an essential ingredient of “reasonable, fair
and just” procedure for a person accused of an offence
and it must be held implicit in the right guaranteed
by Article 21. The extract from the decision of this
Court in Best Bakery case [Zahira Habibulla H. Sheikh
v. State of Gujarat (2004) 4 SCC 158 : 2004 SCC (Cri)
999] (as quoted in the decision in Mohd. Hussain
[Mohd. Hussain v. State (NCT of Delhi) (2012) 9 SCC
408 : (2012) 3 SCC (Cri) 1139] ) emphasises that the
object of criminal trial is to search for the truth and

5 [2019] 18 SCR 1196 : (2019) 20 SCC 196
352 [2024] 12 S.C.R.

Digital Supreme Court Reports

the trial is not a bout over technicalities and must be
conducted in such manner as will protect the innocent
and punish the guilty.
20.3. Even before insertion of Article 39-A in the Constitution,
the decision of this Court in Bashira [Bashira v. State of
U.P. (1969) 1 SCR 32 : AIR 1968 SC 1313 : 1968 Cri LJ
1495] put the matter beyond any doubt and held that the
time granted to the Amicus Curiae in that matter to prepare
for the defence was completely insufficient and that the
award of sentence of death resulted in deprivation of the
life of the accused and was in breach of the procedure
established by law.
20.4. The portion quoted in Bashira [Bashira v. State of
U.P. (1969) 1 SCR 32 : AIR 1968 SC 1313 : 1968 Cri
LJ 1495] from the judgment of the Andhra Pradesh High
Court authored [Alla Nageswara Rao, In re, 1954 SCC
OnLine AP 115 : AIR 1957 AP 505] by Subba Rao, J., the
then Chief Justice of the High Court, stated with clarity
that mere formal compliance of the rule under which
sufficient time had to be given to the counsel to prepare
for the defence would not carry out the object underlying
the rule. It was further stated that the opportunity must be
real where the counsel is given sufficient and adequate
time to prepare.
20.5. In Bashira [Bashira v. State of U.P. (1969) 1 SCR
32 : AIR 1968 SC 1313 : 1968 Cri LJ 1495] as well
as in Ambadas [Ambadas Laxman Shinde v. State of
Maharashtra (2018) 18 SCC 788 : (2019) 3 SCC (Cri)
452 : (2018) 14 Scale 730], making substantial progress
in the matter on the very day after a counsel was engaged
as Amicus Curiae, was not accepted by this Court as
compliance with “sufficient opportunity” to the counsel.”
(emphasis added)
In paragraph 31, norms were laid down by this Court, which read thus:
“31. Before we part, we must lay down certain norms so
that the infirmities that we have noticed in the present
matter are not repeated:
[2024] 12 S.C.R. 353

Ashok v. State of Uttar Pradesh

31.1. In all cases where there is a possibility of life
sentence or death sentence, learned advocates who
have put in minimum of 10 years’ practice at the Bar
alone be considered to be appointed as Amicus Curiae
or through legal services to represent an accused.
31.2. In all matters dealt with by the High Court concerning
confirmation of death sentence, Senior Advocates of the
Court must first be considered to be appointed as Amicus
Curiae.
31.3. Whenever any learned counsel is appointed as
Amicus Curiae, some reasonable time may be provided to
enable the counsel to prepare the matter. There cannot be
any hard-and-fast rule in that behalf. However, a minimum
of seven days' time may normally be considered to be
appropriate and adequate.
31.4. Any learned counsel, who is appointed as Amicus
Curiae on behalf of the accused must normally be granted
to have meetings and discussion with the accused
concerned. Such interactions may prove to be helpful as
was noticed in Imtiyaz Ramzan Khan [Imtiyaz Ramzan
Khan v. State of Maharashtra (2018) 9 SCC 160 : (2018)
3 SCC (Cri) 721] .”
(emphasis added)
20. Thus, the right to get legal aid is a fundamental right of the accused,
guaranteed by Article 21 of the Constitution. Even under Section
303 of the CrPC, every accused has a right to be defended by a
pleader of his choice. Section 304 provides for the grant of legal
aid to an accused free of costs. When an accused has either not
engaged an advocate or does not have sufficient means to engage
an advocate, it is the trial court’s duty to inform the accused
of his right to obtain free legal aid, which is a right covered by Article
21 of the Constitution of India. Sub-Section (1)of Section 304 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
354 [2024] 12 S.C.R.

Digital Supreme Court Reports

not sufficient means to engage a pleader, the Court
shall assign a pleader for his defence at the expense
of the State.
(2) ………………………………………………………………..
(3) …………………………………………..…………………”
(emphasis added)
Sections 340 and 341 of the Bharatiya Nagarik Suraksha Sanhita,
2023 (for short, ‘BNSS’) are the Sections which correspond to
Sections 303 and 304 of the CrPC. Thus, under Section 304 of the
CrPC, it is the duty of the Court to ensure that a legal aid lawyer is
appointed to espouse the cause of the accused.
21. Now, we come back to the facts of the case. From the proceedings
of the Trial Court, it appears that when the charges were framed
on 8th September 2010, and when the plea was recorded, the
appellant was not represented by any advocate. Proceedings of 26th
February 2011 record that though three witnesses of the prosecution
were present, the appellant was not represented by any advocate.
Therefore, assurance of the appellant has been recorded that he
would call his counsel on the next date. On 11th May 2011, the
examination-in-chief of PW-1 was recorded. In the proceedings, the
court recorded that the appellant had not engaged any advocate on
that day, and he was not desirous of taking legal aid. However, on
8th June 2011, an advocate was appointed to espouse his cause.
We find that on 20th July 2012, 4th October 2012, 1st November
2012, 7th November 2012, 9th November 2012 and 23rd November
2012, the advocate appointed as amicus curiae for the appellant
was absent. Applications were required to be made by him to
recall certain witnesses as the cross-examination was closed due
to his absence. Thus, the evidence of more than one prosecution
witness was recorded in the absence of the legal aid advocate. On
7th November 2012, another advocate was appointed to espouse
the appellant’s cause. We find that a third advocate conducted the
cross-examination of PW-8.
22. At the stage of framing the charge, the appellant was not represented
by an advocate. From 8th June 2011, the appellant never declined
legal aid. We are surprised to note that the examination-in-chief of
PW-1 was allowed to be recorded without giving legal aid counsel
[2024] 12 S.C.R. 355

Ashok v. State of Uttar Pradesh

to the appellant, who was not represented by an advocate. If the
examination-in-chief of a prosecution witness is recorded in the
absence of the advocate for the accused, a very valuable right of
objecting to the questions asked in examination-in-chief is taken
away. The accused is also deprived of the right to object to leading
questions. It will not be appropriate to comment on the capabilities
of the two legal aid lawyers appointed in this case as they are not
parties before us. But suffice it to say that the cross-examination of
the witnesses was not up to the mark. Some of the crucial questions
that normally would have been put in the cross-examination have
not been asked.

CONCLUDING PART
23. Our conclusions and directions regarding the role of the Public
Prosecutor and appointment of legal aid lawyers are as follows:
a. It is the duty of the Court to ensure that proper legal aid is
provided to an accused;
b. When an accused is not represented by an advocate, it is the
duty of every Public Prosecutor to point out to the Court the
requirement of providing him free legal aid. The reason is that
it is the duty of the Public Prosecutor to ensure that the trial is
conducted fairly and lawfully;
c. Even if the Court is inclined to frame charges or record
examination-in-chief of the prosecution witnesses in a case
where the accused has not engaged any advocate, it is
incumbent upon the Public Prosecutor to request the Court not
to proceed without offering legal aid to the accused;
d. It is the duty of the Public Prosecutor to assist the Trial Court
in recording the statement of the accused under Section 313 of
the CrPC. If the Court omits to put any material circumstance
brought on record against the accused, the Public Prosecutor
must bring it to the notice of the Court while the examination
of the accused is being recorded. He must assist the Court in
framing the questions to be put to the accused. As it is the duty
of the Public Prosecutor to ensure that those who are guilty of
the commission of offence must be punished, it is also his duty
to ensure that there are no infirmities in the conduct of the trial
which will cause prejudice to the accused;
356 [2024] 12 S.C.R.

Digital Supreme Court Reports

e. An accused who is not represented by an advocate is entitled to
free legal aid at all material stages starting from remand. Every
accused has the right to get legal aid, even to file bail petitions;
f. At all material stages, including the stage of framing the
charge, recording the evidence, etc., it is the duty of the Court
to make the accused aware of his right to get free legal aid.
If the accused expresses that he needs legal aid, the Trial
Court must ensure that a legal aid advocate is appointed to
represent the accused;
g. As held in the case of Anokhilal,5 in all the cases where there
is a possibility of a life sentence or death sentence, only those
learned advocates who have put in a minimum of ten years
of practice on the criminal side should be considered to be
appointed as amicus curiae or as a legal aid advocate. Even
in the cases not covered by the categories mentioned above,
the accused is entitled to a legal aid advocate who has good
knowledge of the law and has an experience of conducting
trials on the criminal side. It would be ideal if the Legal Services
Authorities at all levels give proper training to the newly appointed
legal aid advocates not only by conducting lectures but also
by allowing the newly appointed legal aid advocates to work
with senior members of the Bar in a requisite number of trials;
h. The State Legal Services Authorities shall issue directions to
the Legal Services Authorities at all levels to monitor the work
of the legal aid advocate and shall ensure that the legal aid
advocates attend the court regularly and punctually when the
cases entrusted to them are fixed;
i. It is necessary to ensure that the same legal aid advocate
is continued throughout the trial unless there are compelling
reasons to do so or unless the accused appoints an advocate
of his choice;
j. In the cases where the offences are of a very serious nature
and complicated legal and factual issues are involved, the Court,
instead of appointing an empanelled legal aid advocate, may
appoint a senior member of the Bar who has a vast experience
of conducting trials to espouse the cause of the accused so
that the accused gets best possible legal assistance;
[2024] 12 S.C.R. 357

Ashok v. State of Uttar Pradesh

k. The right of the accused to defend himself in a criminal trial
is guaranteed by Article 21 of the Constitution of India. He
is entitled to a fair trial. But if effective legal aid is not made
available to an accused who is unable to engage an advocate, it
will amount to infringement of his fundamental rights guaranteed
by Article 21;
l. If legal aid is provided only for the sake of providing it, it will
serve no purpose. Legal aid must be effective. Advocates
appointed to espouse the cause of the accused must have good
knowledge of criminal laws, law of evidence and procedural laws
apart from other important statutes. As there is a constitutional
right to legal aid, that right will be effective only if the legal aid
provided is of a good quality. If the legal aid advocate provided
to an accused is not competent enough to conduct the trial
efficiently, the rights of the accused will be violated.
24. For the reasons recorded earlier, the appeal is allowed. The impugned
judgments and orders are set aside, and the appellant is acquitted
of offences alleged against him. The bail bonds of the appellant
stand cancelled.
25. A copy of this judgment shall be forwarded to all State Legal Services
Authorities to enable the authorities to take necessary measures.
26. We record our appreciation for the able assistance rendered to the
Court by the learned senior counsel Shri M.Shoeb Alam, appointed
to espouse the cause of the appellant. We must also record that
the learned senior counsel, Shri K.Parameshwar, appearing for the
respondent, has fairly assisted the Court.

Result of the case: Appeal allowed.

†
Headnotes prepared by: Nidhi Jain