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ORISSA HIGH COURT
B.P. Routray and Chittaranjan Dash, JJ.
State of Odisha and Anr. – Appellants
versus
Sanjeeb Kerketta and Anr. – Respondents
DSREF No.2 of 2023 and JCRLA No.142 of 2023
Decided on 23.4.2025
Counsel for the Parties:
For the Appellant in DSREF No.2 of 2023: Mr. P.S. Nayak, AGA
For the Respondent in DSREF No.2 of 2023:Mr. P. Mohanty, Advocate
For the Appellant in JCRLA No.142 of 2023:Mr. P. Mohanty, Advocate
For the Respondent in JCRLA No.142 of 2023: Mr. P.S. Nayak, AGA
IMPORTANT POINTS
(1) Legal aid – Court’s duty under Section 304 Cr.P.C. is not discharged by mere appointment – It must vigilantly oversee that legal assistance provided is real.
(2) In a case where death penalty is under consideration, law mandates that Sentencing Court must meaningfully weigh aggravating and mitigating circumstances, and make informed assessment of possibility of convict’s reformation and rehabilitation.
(3) Examination of accused – Failure to properly frame and put material circumstances constitutes a serious irregularity and can vitiate trial if it has caused prejudice.
(4) Fair trial – Right to fair trial is not privilege of accused but a right that is equally essential for prosecution and society at large.
Headnote:
(A) Protection of Children from Sexual Offences Act, 2012 – Section 6 – Indian Penal Code, 1860 – Sections 376-A and 302 – Criminal Procedure Code, 1973 – Section 304 – Rape and murder of girl child – Death sentence – Convict was initially represented by an Advocate appointed through legal aid – However, said Counsel failed to appear consistently during material stages of trial, including cross-examination of key prosecution witnesses – Convict was deprived of adequate legal representation since very initiation of trial, as well as at multiple critical stages thereof – Absence of Counsel on significant dates, mechanical manner of cross-examination, failure to contest prosecution’s evidence and lack of any proactive defence strategy cumulatively prejudiced convict’s case – Court’s duty under Section 304 Cr.P.C. is not discharged by mere appointment – It must vigilantly oversee that legal assistance provided is real – Inaction of defence Counsel deprived accused of meaningful and effective defence, thereby resulting in manifest injustice. (Paras 11, 13 and 15)
(B) Criminal Procedure Code, 1973 – Sections 304 and 313 – Protection of Children from Sexual Offences Act, 2012 – Section 6 – Indian Penal Code, 1860 – Sections 376-A and 302 – Rape and murder of girl child – Death sentence – Accused facing serious charges particularly one under Section 302 IPC and Section 6 of POCSO Act, carrying possibility of life imprisonment or death must be afforded fullest opportunity to defend himself through competent and diligent legal representation – In instant case, conduct of defence Counsel and trial proceedings fall woefully short of this standard – Prejudice to convict is not speculative; it is borne out from record – Convict has demonstrated substantial prejudice arising from inadequacy of legal representation – Trial, as conducted, cannot be said to have been a fair trial in eyes of law – Another irregularity is that statement of accused under Section 313 of Cr.P.C., is neither exhaustive nor comprehensive – In a case where death penalty is under consideration, law mandates that Sentencing Court must meaningfully weigh aggravating and mitigating circumstances, and make informed assessment of possibility of convict’s reformation and rehabilitation – Conviction and hearing on sentence were both conducted on same day – Conviction and sentence passed against convict set aside and matter remanded to Trial Court for a de novo trial from stage of framing of charges. (Paras 16, 17, 21, 22 and 28)
(C) Criminal Procedure Code, 1973 – Section 313 – Examination of accused – Failure to properly frame and put material circumstances constitutes a serious irregularity and can vitiate trial if it has caused prejudice – Mere bulk questioning or vague aggregation of circumstances does not satisfy this requirement – Each incriminating circumstance must be individually addressed – Purpose of examination under Section 313 Cr.P.C. is to afford accused a real opportunity to explain evidence against him – Opportunity provided under Section 313 Cr.P.C. is not a mere formality but a substantive and valuable right conferred upon accused – Omission to properly and fairly examine accused under Section 313 Cr.P.C. constitutes a material irregularity which strikes at root of a fair trial, thereby vitiating proceedings to that extent. (Paras 19 and 20)
(D) Constitution of India – Article 21 – Fair trial – Right to fair trial is not privilege of accused but a right that is equally essential for prosecution and, more importantly, for society at large, to ensure that justice is both done and seen to be done – In cases of such grave nature, perfunctory manner of conducting cases not only undermine faith of public in criminal justice system but also risk irreparable miscarriage of justice – Such lapses strike at heart of right to a fair trial and cannot be countenanced – Duty to conduct trial in accordance with law becomes all the more heightened when dealing with allegations involving heinous offences punishable with death or life imprisonment – Cavalier or casual approach to such trials not only imperils rights of accused but also erodes legitimacy of criminal justice system itself – Court must remain ever vigilant to uphold constitutional guarantee of fairness, diligence and due process at every stage of proceedings. (Paras 23 and 25)
Result: Death Reference declined.
JUDGMENT
Chittaranjan Dash, J.—The present reference under Section 366 of the Code of Criminal Procedure, 1973, has been submitted by the learned Additional District Judge-cum-Presiding Officer, Special Court under the POCSO Act, Sundargarh (hereinafter referred to as “the trial Court”), in Special G.R. Case No. 93 of 2016 / Trial No. 34 of 2020, seeking confirmation of the death sentence imposed on the Condemned Prisoner/Accused, Sanjeeb Kerketta (hereinafter referred to as “the Convict”), by judgment and order dated 19.10.2023. Accordingly, DSREF No. 02 of 2023 has been registered.
The Convict, Sanjeeb Kerketta, has also preferred JCRLA No. 142 of 2023, assailing the self-same judgment and order of conviction passed by the learned trial Court, wherein he was found guilty and sentenced to death under Sections 376-A and 302 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). He was further sentenced to undergo rigorous imprisonment for twenty years and to pay a fine of Rs. 5,000/- each for the offences punishable under Section 376(2)(i) of the IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act”), and to undergo rigorous imprisonment for five years and to pay a fine of Rs.3,000/- each for the offences punishable under Sections 201, 450, and 366 of the IPC.
2. The prosecution case in brief is that on 21.10.2016, at around 11:00 p.m., while the widow-informant and her 4-5-year-old younger daughter were asleep in their house, someone entered the house and abducted 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 were unable to trace them. Based on the written report of the informant, P.W.29, the Investigating Officer (I.O.) registered Town P.S. Case No.184 dated 22.10.2016 vide Ext.11 and commenced the investigation.
3. In the course of investigation, after registration of the FIR on 22.10.2016, S.I. Binodini Naik initially took up the investigation. Recognising the gravity of the offence, P.W.29 assumed charge of investigation on 24.10.2016. During the investigation, the I.O. visited the place of occurrence and recorded the statements of material witnesses under Section 161 CrPC. On 25.10.2016, based on an information from a WESCO officer, a dead body suspected to be that of the missing child was discovered from an under-construction house, where the informer and his staff had been to provide electrical connection. The dead body was identified by the complainant and other witnesses, and an Identification Memo was prepared vide Ext.21. Subsequently, inquest was conducted in presence of an Executive Magistrate and witnesses vide Ext.2. During spot inspection, a brown colour Reebok money purse was recovered from the scene containing identity documents of the Accused-Convict Sanjeeb Kerketta, which was seized under seizure list in Ext.12. On 26.10.2016, the Accused-Convict was apprehended at his residence. His confessional statement was recorded under Section 27 of the Indian Evidence Act vide Ext.13. Based on the disclosure, a green Tshirt stained with blood was recovered and seized (M.O.-I, seizure list Ext.12). Medical examination of the deceased was conducted by P.W.5, who opined that the cause of death was neuro-hemorrhagic shock due to injuries to the genital tract. The post-mortem report is annexed in Ext.10. A subsequent query report was furnished clarifying the causative link between the injuries and the violent sexual assault vide Ext.40. Further, the biological samples of the deceased and the Convict were collected and sent for chemical examination. A memory card containing the video recording of the accused’s confession was seized and marked as Ext.3. A compact disc containing photographs and videography of the spot and post-mortem was seized through seizure list marked as Ext
