Back
2013 Supreme(Ori) 404
IN THE HIGH COURT OF ORISSA: CUTTACK
PRADIP MOHANTY AND D. DASH, JJ.
DSREF No.4 of 2013 and JCRLA No.29 of 2013
(Date of Judgment : 20.12.2013)
DSREF NO. 4 of 2013
In the matter of a reference under Section 366 of the Code of Criminal Procedure arising out of judgment dated 14.05.2013/15.05.2013 passed by Sri K.C. Mohapatra, Sessions Judge, Nabarangpur in C.T. No.74 of 2011.
State of Orissa ... Complainant
Versus
Sukru Majhi ... Respondent
For Complainant:Mr. Sk. Zafarulla, Addl.Standing Counsel
For Respondent:Mr. Biswajit Nayak
Headnote:1. CRIMINAL PROCEDURE CODE, 1973 - Sec. 366 - Conviction under Sec. 302, IPC with sentence of death - Confirmation of death sentence - Appeal challenging the conviction and sentence - Whether the accused has faced a fair trial or not, with proper opportunity to defend himself ? - Held, no - Failure of performance of duty not only by the learned defence counsel but also the trial Court - Court has not played its role in a manner as it ought to have been while trying such an important case bearing in mind that in case of the finding either way its consequences are likely to be serious and far reaching and that it may call upon the Court for imposing the capital punishment - Role of the trial Court has not been participatory and instead has become that of a tape recorder - Absence of proper cross-examination appear to have resulted in miscarriage of justice and the Court has also failed to guard against such eventuality - Accused did not get a fair trial as the learned defence lawyer has performed his duty in name sake only with the Court's role remaining as a mute spectator - Held, trial against the accused was flawed - Judgment of conviction and sentence set aside - Matter remitted to trial Court for de novo trial.
The accused in this case appears to be a poor Adibasi hailing from a remote Scheduled Area of the State having no media no means to express the pain and agonies, and therefore is with impunity. So in such situation, where every person has a right to a fair trial by a competent Court in the spirit of the right to life and personal liberty, the Code of Criminal Procedure also provide measures to the effect that an accused gets a fair trial when he role of the Court remains in arriving at the truth at the end. The Court in this case in view of glaring deficiencies in defence as pointed out in the foregoing para ought to have intervened in the matter in getting the response of accused for being provided with further assistance of a legal practitioner to the learned counsel for the defence already on less so as to achieve the goal of arriving at the truth at the conclusion of the trial. In our considered view in the present case such a measure at the instance of the Court in the facts and circumstances of the case and the glaring deficiencies in the defence was absolutely necessary to secure the ends of justice.
In our considered view, thus the provision under Section 304 of the Code of Criminal Procedure can also be pressed into service in the peculiar facts and circumstances of the case as above during the trial by engagement of the competent counsel at the expenses of the State to assist the defence counsel on appearance being engaged by accused subject to the acceptance of the proposal of the accused. Measure to the above effect in appropriate cases where is taken by the Court, the same can only be said to be in the direction of serving not only the legislative intent behind the provision of Section 304 of the Code but also the Constitutional mandate of not depriving any person of his life and liberty except according to the procedure established by law. The Court in that event can only be said to have duly discharged its role in this case and any view to the contrary in our humble opinion may render the right of the accused as wholly illusory. The present case as per our discussion was required to be dealt accordingly. In the back drop of above, we hold that the trial against the accused was flawed. (Paras - 5 to 9)
2. CRIMINAL PROCEDURE CODE, 1973 - Sec. 386 - Court while hearing the criminal appeal has the power of retrial of the accused - Though such power exists, the same should not be exercised in a routine manner - A de novo trial or retrial of the accused should be ordered by the appellate Court in exceptional and rare cases and only when in the opinion of the appellate Court such course becomes indispensable to avert failure of justice - Detail stated.
The guiding factor for retrial must always be the demand of justice. The exercise of power of retrial under Section 386(b) of the Code of Criminal Procedure will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appellate Court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked. (Para - 11)
3. CRIMINAL JURISPRUDENCE - Cardinal principle - When the accused is presumed to be innocent till he is found guilty by a Court of law in a fair trial, the fair trial is not only to take place but it must also appear to have been so faced by the accused.
(Para - 9)
4. CRIMINAL PROCEDURE CODE, 1973 - Sec. 304 - 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 - Not only the accused has a fundamental right to be defended by a counsel of his choice but it is also an obligation of the State to appoint a counsel for the defence of an accused who does not have sufficient means to engage a counsel for himself.
The requirement of providing counsel to an accused at the State expense thus cannot be taken to be an empty formality which may be not by merely appointing a counsel whatever his calibre may be. When the law enjoins appointing a counsel to defend an accused, it means an effective counsel, a counsel in real sense who can safeguard the interest of the accused in best possible manner which is permissible under law. An accused facing charge of murder may be sentenced to death or imprisonment for life and consequently his case should be handled by a competent person having sufficient professional expertise looking at the nature and gravity of the offences and consequential effect of trial finally ending against. A duty is cast upon the Judges before whom such indigent accused faces trial for serious offence and who is not able to engage a counsel, to appoint competent persons for their defence. It is needless to emphasize that a Judge is not a prosecutor and his duty is to discern the truth so that he is able to arrive at a correct conclusion and the defence lawyer plays an important role in bringing out the truth before the Court by cross-examining the witnesses and placing relevant materials or evidence by serving the objective of the very purpose of cross-examination. Thus role of both are of equal importance to ensure a fair trial and satisfactory performance of the role of both only assures a fair trial in arriving at the truth. (Para - 10)
JUDGMENT
D. DASH, J. : The proceeding for confirmation of death sentence and the Jail Criminal Appeal having arisen out of the judgment of conviction and order of sentence dated 14.05.2013 and 15.05.2013 respectively passed by the learned Sessions Judge, Nabarangpur in C.T. Case No.74 of 2011 have been heard together and are therefore disposed of by this common judgment.
2.The prosecution case is the following :
On 16.07.2011 around 3.30 P.M. the accused Sukuru Majhi holding a Barchhi (Spear) suddenly came out of his house situated at village Bhagatguda in a violent mood without paying any heed to the protest from the side of his wife and his other relations as if in a human haunting spree. It is alleged that he first pierced the spear into the chest of one Dasai Majhi, who was standing in front of her house, causing instantaneous death and then continued with the mission of murder of one after another. One Dinamani and Pitamber when intervened were severely injured with the said spear. It is next alleged that the accused thereafter ran to the nearby field of Kumari Majhi who was working there. Seeing her, the accused inflicted injury on her back with the spear that he was holding and it also resulted in her instantaneous death. Thereafter with the said spear, the accused ran towards village Maidalpur. Dinamani and Pitamber, who had sustained serious injuries in the hands of the accused, being shifted to the hospital, finally succumbed to the said injuries. It is the case of the prosecution that the accused by inflicting fatal injuries on the person of Dasai, Dinamani, Pitamber and Kumari caused their death.
Information being lodged by one Bhagirathi Majhi, P.W.1 before the I.I.C., Papadahandi Police Station under Ext.1, case was registered and as per the direction of the I.I.C., the A.S.I. of Police then attached to Papadahandi Police Station took up investigation.
In course of the investigation, he examined the complainant and then deputing constable to guard the dead bodies, proceeded to the village Bhagatguda, where he held inquest over the dead bodies of Kumari Majhi and Dasai Majhi in the Maize field where those were lying in presence of the witnesses under Ext.2 and Ext.9 respectively. He collected the blood stained and sample earth from both the places under seizure lists Exts.3 and 4. The dead bodies were sent to the District Hospital, Nabarangpur for postmortem examination through the escort party. Receiving the official information from Maidalpur Police Out-Post that the accused had surrendered there, he rushed to the Out-Post, where he found the accused to be present holding the Barchhi (Spear) (M.O.I.) and on his production seizure of that weapon was made under Ext.23. Spot map was also prepared under Ext.24. Some time after, receiving the information about death of Pitamber in the hospital, he having deputed a constable to guard the dead body there, rushed down. On his arrival, he also held inquest over the dead body of Pitamber in presence of the witnesses under Ext.8 and then sent the dead body for post mortem examination vide dead body challan under Ext.25. Wearing apparels of the deceased Dasai, Dinamani, Kumari and Pitamber were also seized under Ext.6 and those were sent for chemical examination. The accused was sent for medical examination with request for collection of his blood sample and nail clippings which were collected. This P.W.20, the I.O., then seized the sealed bottles containing nail clippings and sample blood of the accused on production by the Police Constable under seizure list Ext.5. On 18.07.2011 he received information about death of Dinamani in the hospital. So in a similar manner he held inquest over the dead body in presence of the witnesses and prepared the inquest report at the hospital. While sending the dead body of Dinamani for post mortem examination under Ext.26, he later on seized one yellow colour saree of Dinamani, under seizure list Ext.7. The weapon of offence (M.O.I.), which wa
