'Trial Conducted In Perfunctory Manner': Orissa High Court Sets Aside Death Sentence For Rape & Murder Of Minor Girl, Orders Fresh Trial

The Orissa High Court has set aside the extreme penalty of death imposed upon a man for rape and murder of a five-year-old girl on the ground that the Sessions Court conducted the trial in a 'perfunctory' and 'mechanical' manner without even ensuring proper legal representation to the accused, and denying adequate opportunity to put forward mitigating circumstances.While remanding the case back to the trial Court for de novo/fresh trial from the stage of framing of charges, the Division Bench of Justice Bibhu Prasad Routray and Justice Chittaranjan Dash held –“The right to a fair trial is not the privilege of the accused but a right that is equally essential for the prosecution and, more importantly, for society at large, to ensure that justice is both done and seen to be done. The trial Court, therefore, was under an even greater obligation to ensure that the trial proceedings were conducted with the strictest regard to fairness and due process. Regrettably, the record reflects a complete abdication of that responsibility.”Case BackgroundAt around 11 PM on October 21, 2016, while the widow-informant and her 4/5-year-old daughter were asleep in their house, someone entered the house and took away the informant's daughter. The informant chased the culprit, but he managed to escape into the darkness with the child. Upon the hue and cry raised by the informant, neighbours gathered and searched for the victim but in vain. The informant immediately proceeded to lodge a written report with the police, based on which an FIR was registered and investigation was conducted.On October 25, 2016, an officer from the electricity department alerted the police about the discovery of a dead body suspected to be that of the missing child from an under-construction house, where his staff had been to provide electric connection. Th identity of the dead body was confirmed by the informant and other witnesses. A wallet containing identity cards of the condemned prisoner/convict was recovered from the spot.The convict was arrested on October 26, 2016 from his residence and his confessional statement was recorded under Section 27 of the Evidence Act. Based on the disclosure, a t-shirt stained with blood was recovered. Medical examination of the deceased was conducted which established the cause of death to be 'neuro-hemorrhagic' shock due to injuries to the genital tract. After collecting all the material evidence and receiving forensic reports, the charge-sheet was submitted on February 09, 2017 against the convict under Sections 302, 376-A, 376(2)(i), 366, 450, 201 of the IPC and Section 6 of the POCSO Act. Accordingly, the charges were framed and the trial was conducted.At the end of the trial, the convict was found guilty and sentenced to death under Sections 376-A and 302 of the IPC. He was further convicted and sentenced under Sections 376(2)(i), 366, 450, 201 of the IPC and Section 6 of the POCSO Act. The trial Court made a confirmation reference under Section 366, CrPC, which was tagged along with the jail criminal appeal filed by the convict against the verdict.Challenge to the procedural irregularities in trialThe counsel representing the convict argued that since he (the convict) was unable to engage an Advocate to conduct his case, he was provided legal aid counsel on several occasions by the trial Court. He, however, asserted that the appointed counsel failed to safeguard the convict's interests by not cross-examining critical prosecution witnesses even when an opportunity was afforded under Section 311, CrPC. He further pointed out that the accused statement recorded under Section 313, CrPC is defective, inadequate and bereft of any sanctity. He alleged that the incriminating circumstances, including the DNA evidence, alleged recoveries and the last seen theory, were not properly put to the convict, depriving him the opportunity to offer explanation and defence.Erratic legal aid representationKeeping the contentions raised by the counsel for the convict in the backdrop, the trial Court perused the Trial Court Record (TCR) which revealed that the convict was initially represented by an Advocate appointed through legal aid. However, the said counsel failed to appear consistently during important stages of the trial, including at the time of cross-examination of key prosecution witnesses. “It is further evident that no meaningful or substantial defence was put forth on behalf of the Convict. Witnesses were either not cross-examined at all, or cross-examined in a perfunctory and mechanical manner, failing to elicit contradictions or inconsistencies that could have aided the defence. No defence evidence was led, and no final arguments appear to have been made with the diligence expected of counsel entrusted with safeguarding the rights of an accused facing serious charges,” it observed.Justice Dash, who authored the judgment for the Bench, further highlighted some surprising features of the case. He underlined that due to ...

'Trial Conducted In Perfunctory Manner': Orissa High Court Sets Aside Death Sentence For Rape & Murder Of Minor Girl, Orders Fresh Trial

Jyoti Prakash Dutta

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