Orissa High Court
State Of Odisha vs Sanjeeb Kerketta … Condemned … on 23 April, 2025
Author: Chittaranjan Dash
Bench: B. P. Routray, Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK (Arising out of the Judgment & Order of Conviction dated 19th of October, 2023 passed by Shri Mahendra Kumar Sutradhar, Additional District Judge-cum-Presiding Officer, Special Court under POCSO Act, Sundargarh, in Special G.R. Case No.93 of 2016/Trial No.34 of 2020, for the offence under sections 450/366/376(2)(i)/376(A)/302/201 of the Indian Penal Code, 1860 and under section 6 of the POCSO Act) DSREF No. 02 of 2023 State of Odisha ... Appellant Mr. P. S. Nayak, AGA -versus- Sanjeeb Kerketta ... Condemned Prisoner Mr. P. Mohanty, Advocate JCRLA No. 142 of 2023 Sanjeeb Kerketta ... Appellant Mr. P. Mohanty, Advocate -versus- State of Odisha ... Respondent Mr. P.S. Nayak, AGA CORAM: THE HON'BLE MR. JUSTICE B. P. ROUTRAY THE HON'BLE MR. JUSTICE CHITTARANJAN DASH Date of Judgment: 23.04.2025 Chittaranjan Dash, J.
1. The present reference under Section 366 of the Code of
Criminal Procedure, 1973, has been submitted by the learned
DSREF No. 02 of 2023 Page 1 of 23
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.)
DSREF No. 02 of 2023 Page 2 of 23
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 T-
shirt 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
DSREF No. 02 of 2023 Page 3 of 23
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.6. The I.O. also seized the Paribar Bibarani
Register (family register) from the Anganwadi Centre to establish the
age of the deceased vide seizure list Ext.1. After collecting all the
material evidence, and receiving reports from RFSL and Medical
Officers, the charge sheet was submitted on 09.02.2017 under
Sections 450, 366, 376(2)(i), 376(A), 302, 201 IPC and Section 6 of
the POCSO Act against the Convict to face trial.
4. The case of the defence is one of complete denial and false
accusations.
5. To bring home the charge, the prosecution examined 35
witnesses in all.
6. The learned trial Court found the prosecution to have proved
its case beyond all reasonable doubt and held the Appellant guilty and
convicted him awarding sentence as described above.
7. Mr. P. S. Nayak, learned AGA submits that the prosecution
has successfully proved the guilt of the Convict beyond reasonable
doubt by leading credible, consistent, and trustworthy evidence. He
emphasised that the Convict was last seen together with the deceased
child at about 11:00 p.m. on the night of occurrence, which was
witnessed by P.W.1, the mother-Informant herself, as he fled away
with the child. The immediate raising of alarm and the prompt lodging
of the FIR excluded any possibility of concoction. He further argues
that the wallet of the Convict recovered from the spot where the dead
body was found, the confession made by the Convict, and the
DSREF No. 02 of 2023 Page 4 of 23
recovery of the green shirt with blood stains, forms a strong
incriminating circumstance against him. The Convict failed to offer
any plausible explanation under Section 313 Cr.P.C. regarding how
the victim came to be last seen in his company and subsequently
recovered dead, thereby attracting an adverse inference against him.
The learned AGA also contended that the medical as well as the
scientific evidence supported the prosecution case. As to the issue of
motive, Mr. Nayak submits that even though motive assumes lesser
significance in cases based on direct or strong circumstantial evidence,
the facts of the case reveal that the Convict, being acquainted with the
informant, and the extra-judicial confession made to P.W.26, the elder
sister of the deceased child, only points towards the hypothesis that
the Convict had an opportunity and evil intent to commit the offence.
Regarding procedural objections, Mr. Nayak asserted that the Convict
had been provided with adequate legal representation throughout the
trial. The fact that the Convict chose not to cross-examine certain
witnesses during recall under Section 311 Cr.P.C. was his own tactical
decision and cannot be used to allege any procedural unfairness. Mr.
Nayak submits that relying on the unbroken chain of circumstances,
such as last seen together, wallet of the Convict with his picture,
recovery of the bloodstained green shirt at the instance of the accused,
failure to explain incriminating circumstances, scientific and medical
evidence, and the motive, the trial Court rightly convicted the
accused-Convict. He finally concludes his argument by submitting
that given the gruesome nature of the crime committed against a 5-
year-old girl child, the case falls within the “rarest of rare” category,
warranting the affirmation of the death penalty awarded by the learned
trial Court.
DSREF No. 02 of 2023 Page 5 of 23
8. Mr. P. Mohanty, learned counsel appearing on behalf of the
Convict argues that the trial against the Convict was vitiated by grave
procedural irregularities, violating his fundamental right to a fair trial
under Article 21 of the Constitution. He submits that foremost, the
Convict was deprived of adequate and effective legal representation
during the trial. The accused-Convict could not engage a counsel for
himself. Although on several occasions, counsels were appointed for
him, the representation remained purely formal as there was no
serious or meaningful defence conducted which was in clear violation
of the guidelines passed by the Hon’ble Apex Court. He further argues
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. Mr. Mohanty
contends that when P.W.6, P.W.7, and P.W.12 were recalled for
further cross-examination, no questions were posed, and the chance to
challenge the prosecution’s case was effectively abandoned. Such
non-representation at vital stages of trial rendered the proceeding
unfair and caused irremediable prejudice to the Convict. Mr. Mohanty
further points out that the accused statement recorded under Section
313 CrPC is defective, inadequate, and has divorced the sanctity of the
above provision. The incriminating circumstances, including the DNA
evidence, alleged recoveries, and the so-called last seen theory, were
not properly put to the Convict, depriving him the opportunity to offer
his explanation and defence. He asserts that, it is a settled principle of
law that a conviction cannot be based on circumstances not explained
to the accused during his examination under Section 313 CrPC. Mr.
Mohanty argues that apart from these procedural infirmities, the
circumstantial evidence is neither conclusive nor forms an unbroken
chain leading only to the guilt of the accused, the last seen evidence is
DSREF No. 02 of 2023 Page 6 of 23
shaky, with an unexplained gap between the time the child went
missing and the recovery of her body, and the recoveries made at the
instance of the accused are doubtful, lacking a proper chain of
custody, and were neither spontaneous nor convincingly proved. He
further highlights that the DNA report categorically records that there
was no match between the blood sample of the Convict and the
vaginal swab and clothes of the deceased, thereby negating the
prosecution’s version. Mr. Mohanty concludes his argument by stating
that despite the glaring lapses, the learned trial Court proceeded to
convict the accused-Convict on fragile and speculative evidence, and
he is hence entitled to the benefit of doubt and deserves to be
acquitted.
9. This Court has heard the learned counsel for the Accused-
Convict as well as the learned AGA for the State at length and has
carefully gone through the entire lower Court records (LCR) including
the evidence of the prosecution witnesses, documents proved through
exhibits, and the statement of the accused recorded under Section 313
of the Code of Criminal Procedure (CrPC). Upon such scrutiny, we
find that serious procedural irregularities have occurred, which go to
the root of the matter and have caused grave prejudice to the Convict.
10. At the outset, it is pertinent to address the Convict’s
contention that the trial proceedings were vitiated owing to the lack of
effective and adequate legal representation. The right to a fair trial, a
cornerstone of criminal jurisprudence, is intrinsically linked to the
right of the accused to be represented by competent counsel. The
Convict has asserted that the deficiencies in legal assistance have
occasioned a miscarriage of justice, warranting interference by this
Court.
DSREF No. 02 of 2023 Page 7 of 23
11. A perusal of the trial Court record reveals that the Convict was
initially represented by an advocate appointed through legal aid.
However, the said counsel failed to appear consistently during
material stages of the trial, including the 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.
To elaborate, the order sheets of the trial Court starkly depict
the persistent lack of proper legal representation:
21.10.2016 - Date of occurrence.
22.10.2016 - First Information Report (FIR) registered.
26.10.2016 - Appellant arrested.
02.03.2017 - Charge sheet received; cognizance taken by the
learned Magistrate.
16.05.2017 - Police papers supplied to the accused.
28.08.2017 - Neither any Vakalatnama was filed on behalf of
the accused nor any State Defence Counsel (SDC) appointed
until this date. Advocate Smt. Kalpana Maity was appointed as
SDC. On the same day, hearing on the question of charge was
conducted, charges were framed, and subsequently, Smt.
Kalpana Maity filed a withdrawal memo which was accepted
by the Court.
DSREF No. 02 of 2023 Page 8 of 23
22.09.2017 – Advocate J.K. Thakur appointed as SDC.
01.11.2017 – Advocate J.K. Thakur filed a withdrawal memo,
which was accepted the same day.
08.03.2018 – Advocate D. Mohapatra appointed as SDC.
03.04.2018 – Advocate D. Mohapatra filed a withdrawal
memo, which was accepted.
24.05.2018 – Advocate Rajiv Kumar Haider appointed as
SDC.
01.08.2018 – Advocate Rajiv Kumar Haider did not appear
and over telephone communication refused to conduct the
defence.
04.12.2018 – Advocate K.L. Sen appointed as SDC.
28.02.2020 – Case record transferred to the Court of the
learned Additional District Judge-cum-Special Court
(POCSO), Sundargarh.
03.03.2020 – Prosecution witnesses (PWs) 1 and 2 examined.
01.03.2021 – On the appellant’s application, the Court directed
DLSA, Sundargarh to appoint a new SDC.
16.08.2021 – Advocate Smt. Kalpana Maity re-appointed as
SDC; on the same day, PW-3 was examined. The appellant
also prayed for supply of fresh police papers, having
misplaced the earlier set.
20.03.2023 – Advocate Kalpana Maity filed a withdrawal
memo, which was accepted. Advocate Raghunath Panda
appointed as new SDC.
27.03.2023 – The appellant himself prayed for appointment of
Advocate Raghunath Panda.
DSREF No. 02 of 2023 Page 9 of 23
29.03.2023 – No prosecution witnesses available; matter
adjourned to 25.04.2023 for hearing.
01.08.2023 – Learned Special Public Prosecutor filed an
application under Section 311 CrPC to recall P.W.5 (Dr. Sarat
Chandra Naik). Application heard on the same day; no
objection raised by the SDC. P.W.5 was recalled, further
examined, cross-examined and discharged.
01.09.2023 – Prosecution filed memo declining further
evidence. Prosecution evidence closed. The appellant was
examined under Section 313 CrPC.
19.10.2023 – Judgment pronounced in open Court and
sentence awarded on the same day.
12. In the matter of Ashok vs. State of Uttar Pradesh reported in
[2024] 12 S.C.R. 335, the Hon’ble Supreme Court laid down
directives with regard to the responsibilities of Public Prosecutors and
the appointment of defence counsel through legal aid, held as under –
“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;
c. It is the duty of the Public Prosecutor to assist the trial
Court in recording the statement of the accused under SectionDSREF No. 02 of 2023 Page 10 of 23
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;
d. 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, 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;
DSREF No. 02 of 2023 Page 11 of 23
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;
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.”
It is further held in Chaluvegowda & Ors. vs. State reported in
(2012) 13 SCC 538:
“18. The right to a fair trial is one to be enjoyed by the guilty
as well as the innocent, for an accused is presumed to be
innocent until proved to be otherwise in a fairly conducted
trial. This right would include that he be defended by a
competent counsel. The provision of an amicus curiae for an
accused, in case the accused is unable to engage an advocate
to conduct his defence, is to ensure the goal of a fair trial
which is a guarantee provided in the Constitution. We may
recall the often quoted passage of Potter Stewart “Fairness is
what justice really is”.
19. The right to be represented by a lawyer must not be an
empty formality. It must not be a sham or an eyewash. The
appointment of an amicus curiae for the defence of an accused
person must be in true letter and spirit, with due regard to the
effective opportunity of hearing that is to be afforded to every
accused person before being condemned. The due process of
law incorporated in our constitutional system demands that a
person not only be given an opportunity of being heard before
DSREF No. 02 of 2023 Page 12 of 23
being condemned, but also that such opportunity be fair, just
and reasonable.”
13. Upon a holistic appreciation of the record and applying the
principles laid down by the Hon’ble Supreme Court in Ashok vs.
State of Uttar Pradesh (Supra) and Chaluvegowda & Ors. vs. State
(Supra), it is manifest that the Convict was deprived of adequate legal
representation since the very initiation of the trial, as well as at
multiple critical stages thereof. Furthermore, on 28.08.2017, it was
noted that neither any Vakalatnama had been filed by the accused nor
had any State Defence Counsel (SDC) been appointed. Consequently,
Advocate Smt. Kalpana Maity was appointed as the SDC to represent
the accused-Convict. On the same day, the Court heard arguments
from both sides on the question of charge, perused the case record,
and formally framed the charge. However, later that day, the newly
appointed SDC, Smt. Kalpana Maity, filed a withdrawal memo, which
was accepted by the Court immediately.
The absence of counsel on significant dates, the mechanical
manner of cross-examination, the failure to contest the prosecution’s
evidence, and the lack of any proactive defence strategy together
cumulatively prejudiced the Convict’s case. We note that the trial
Court, although recording the absence or passivity of counsel on
various dates, did not take any corrective measures to ensure that the
Convict’s right to a fair trial was safeguarded. Not only was the
Convict deprived of effective and meaningful legal representation at
various stages of the trial, but the record further reveals an even more
disturbing feature that none of the orders of the trial Court reflect that
the appointed SDCs were ever furnished with the complete case
records for perusal or preparation. The Court’s duty under Section 304
CrPC is not discharged by mere appointment; it must vigilantly
DSREF No. 02 of 2023 Page 13 of 23
oversee that the legal assistance provided is real, that the counsel is
given sufficient time and opportunity to understand the case, examine
the materials on record, and prepare an effective defence. The absence
of any record showing that the case materials were supplied to the
successive SDCs appointed during the course of trial further
reinforces the conclusion that the appellant was denied the substantive
benefit of legal assistance, thereby rendering the trial wholly unfair
and vitiated.
14. The Hon’ble Supreme Court in the matter of Anokhilal vs.
State of Madhya Pradesh reported in [2019] 18 S.C.R. 1196, to this
effect has observed the following –
“In the present case, the Amicus Curiae, was appointed on
19.02.2013, and on the same date, the counsel was called
upon to defend the accused at the stage of framing of charges.
One can say with certainty that the Amicus Curiae did not
have sufficient time to go through even the basic documents,
nor the advantage of any discussion or interaction with the
accused, and time to reflect over the matter. Thus, even before
the Amicus Curiae could come to grips of the matter, the
charges were framed. The concerned provisions viz. Sections
227 and 228 of the Code contemplate framing of charge upon
consideration of the record of the case and the documents
submitted therewith, and after ‘hearing the submissions of the
accused and the prosecution in that behalf’. If the hearing for
the purposes of these provisions is to be meaningful, and not
just a routine affair, the right under the said provisions stood
denied to the appellant.
In our considered view, the trial Court on its own, ought to
have adjourned the matter for some time so that the Amicus
Curiae could have had the advantage of sufficient time to
prepare the matter. The approach adopted by the trial Court, in
our view, may have expedited the conduct of trial, but did not
further the cause of justice. Not only were the charges framed
the same day as stated above, but the trial itself was concluded
within a fortnight thereafter. In the process, the assistance that
the appellant was entitled to in the form of legal aid, could not
be real and meaningful.
DSREF No. 02 of 2023 Page 14 of 23
***
In V.K. Sasikala vs. State Represented by Superintendent of
Police25 a caution was expressed by this Court as under:
“23.4 While the anxiety to bring the trial to its earliest
conclusion has to be shared it is fundamental that in the
process none of the well- entrenched principles of law that
have been laboriously built by illuminating judicial precedents
are sacrificed or compromised. In no circumstance, can the
cause of justice be made to suffer, though, undoubtedly, it is
highly desirable that the finality of any trial is achieved in the
quickest possible time.”
18. Expeditious disposal is undoubtedly required in criminal
matters and that would naturally be part of guarantee of fair
trial. However, the attempts to expedite the process should not
be at the expense of the basic elements of fairness and the
opportunity to the accused, on which postulates, the entire
criminal administration of justice is founded. In the pursuit for
expeditious disposal, the cause of justice must never be
allowed to suffer or be sacrificed. What is paramount is the
cause of justice and keeping the basic ingredients which
secure that as a core idea and ideal, the process may be
expedited, but fast tracking of process must never ever result
in burying the cause of justice.”
15. A further ground of prejudice arises from the ineffective
representation by the SDC when key prosecution witnesses were
recalled under Section 311 of the Code of Criminal Procedure, 1973.
On 01.08.2023, upon the application filed by the learned Special
Public Prosecutor, P.W.5, the doctor who conducted the post-mortem
examination, was recalled and further examined. However, despite the
opportunity being available, the learned SDC appointed to represent
the accused failed to cross-examine the witness. This omission
assumes serious significance, given that cross-examination is a vital
safeguard of the accused’s rights and an indispensable feature of a fair
trial. It enables the defence to test the veracity and credibility of
prosecution witnesses and to expose any inconsistencies or
weaknesses in the prosecution’s case. The Hon’ble Supreme Court has
DSREF No. 02 of 2023 Page 15 of 23
time and again emphasised that the failure of defence counsel,
particularly Court-appointed counsel, to discharge their duties
diligently amounts to a violation of the accused’s right to effective
legal representation. In the present case, the inaction of the defence
counsel deprived the accused of a meaningful and effective defence,
thereby resulting in manifest injustice.
16. It is well-settled that an accused facing serious charges
particularly one under Section 302 IPC and section 6 of POCSO Act,
carrying the possibility of life imprisonment or death must be afforded
the fullest opportunity to defend himself through competent and
diligent legal representation. In the instant case, the conduct of
defence counsel and the trial proceedings fall woefully short of this
standard. The prejudice to the Convict is not speculative; it is borne
out from the record. In our considered opinion, the Convict has
demonstrated substantial prejudice arising from the inadequacy of
legal representation. The trial, as conducted, cannot be said to have
been a fair trial in the eyes of law.
17. Another irregularity pointed out by the defence is that the
statement of the accused under Section 313 of the Code of Criminal
Procedure, 1973, is neither exhaustive nor comprehensive. The
opportunity provided under Section 313 CrPC is not a mere formality
but a substantive and valuable right conferred upon the accused. It is
intended to afford the accused a fair opportunity to offer an
explanation against the evidence led by the prosecution. The omission
to properly and fairly examine the accused under Section 313 CrPC
constitutes a material irregularity which strikes at the root of a fair
trial, thereby vitiating the proceedings to that extent.
DSREF No. 02 of 2023 Page 16 of 23
18. The Hon’ble Supreme Court in the matter of Raj Kumar vs.
State (NCT of Delhi) reported in 2023 SCC OnLine SC 609, has laid
down the principles concerning the examination of the accused under
Section 313 CrPC, as under:
“17. The law consistently laid down by this Court can be
summarised 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;
(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;
(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; and
(viii) While deciding the question whether prejudice has
been caused to the accused because of the omission, theDSREF No. 02 of 2023 Page 17 of 23
delay in raising the contention is only one of the several
factors to be considered.”
19. As laid down above, the trial Court must specifically,
distinctly, and separately put each material circumstance appearing in
evidence against the accused. The purpose of such examination is not
perfunctory; it is to provide the accused a meaningful opportunity to
explain the circumstances against him. Failure to properly frame and
put material circumstances constitutes a serious irregularity and can
vitiate the 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. The
omission, unless shown to be curable without causing failure of
justice, entitles the accused to appropriate remedial directions,
including the possibility of remand. This principle underscores the
substantive, rather than procedural, character of the right under
Section 313 CrPC, firmly rooted in the guarantee of a fair trial under
Article 21 of the Constitution.
20. Upon perusal of the case record in the instant case, we note
this with concern that the questions put to the Convict under Section
313 CrPC were excessively lengthy, spanning pages after pages, and
covered multiple factual circumstances in a single breath. The purpose
of examination under Section 313 CrPC is to afford the accused a real
opportunity to explain the evidence against him. In the present case,
the manner of questioning deprived the accused of that substantive
opportunity. It is also disgusting to note that the learned trial Court did
not even make an endeavour to understand the predicament of the
accused-Convict, whether he could rationally answer if the entire
evidence were placed before him, not filtering out the specific pieces
DSREF No. 02 of 2023 Page 18 of 23
of evidence to be utilised against him, including the entire evidence of
the Investigating Officer.
21. It is further placed on record that pursuant to the order passed
by this Court on 12.02.2025, that the mitigating circumstances of the
Convict including his background, psychological condition, pre-
conviction and post-conviction conduct have been furnished and are
now part of the court record. This Court notes with concern that no
such enquiry was undertaken by the trial Court at the stage of
sentencing. In a case where the death penalty is under consideration,
the law mandates that the sentencing Court must meaningfully weigh
the aggravating and mitigating circumstances, and make an informed
assessment of the possibility of the convict’s reformation and
rehabilitation, as held in Bachan Singh vs. State of Punjab reported
in (1980) 2 SCC 684, and Machhi Singh vs. State of Punjab reported
in AIR 1983 SC 957. The grievous nature of the offence, though
highly relevant, cannot alone justify the imposition of the ultimate
penalty without a genuine inquiry into the individual circumstances of
the offender. The failure to undertake such a balancing exercise and
the omission to consider the available mitigating materials constitute a
serious irregularity, vitiating the sentencing process.
22. This Court further records its concern that the conviction and
the hearing on sentence were both conducted on the same day. The
defence was given no meaningful opportunity to prepare submissions
on mitigation or to place materials relevant to sentencing before the
Court. In trials involving the death penalty, it is a constitutional
imperative, as laid down in Santa Singh vs. State of Punjab reported
in (1976) 4 SCC 190 and reaffirmed in Sovaran Singh Prajapati vs.
State of Uttar Pradesh reported in 2024 SCC OnLine SC 402, that a
DSREF No. 02 of 2023 Page 19 of 23
separate, substantive hearing on sentence must be held, distinct from
the stage of conviction. The right to a fair opportunity to present
mitigating factors is not a matter of procedure alone but touches upon
the right to life itself under Article 21 of the Constitution. By rushing
the sentencing proceedings without granting adequate time or
opportunity to the defence, the trial Court undermined this basic
safeguard, vitiating the sentencing process. Such an approach not only
violates the rights of the accused but also undermines the
constitutional commitment to fair trial standards that all courts are
bound to uphold.
23. Upon a cumulative evaluation of the record, this Court finds
that the trial proceedings were afflicted by multiple and grave
irregularities, including improper and inadequate examination under
Section 313 CrPC, failure to consider mitigating circumstances at
sentencing, and denial of a distinct and fair sentencing hearing. Each
of these deficiencies, standing alone, would be sufficient to occasion
serious prejudice. Taken together, they reveal a trial conducted in a
perfunctory, mechanical, and constitutionally impermissible manner.
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. In cases of such grave
nature, perfunctory manner of conducting the cases not only
undermine the faith of the public in the criminal justice system but
also risk irreparable miscarriage of justice. Such lapses strike at the
DSREF No. 02 of 2023 Page 20 of 23
heart of the right to a fair trial and cannot be countenanced. This Court
is thus left with no alternative but to hold that the trial stands vitiated
in its entirety.
24. In view of the serious procedural lapses noticed in the present
case, this Court deems it appropriate to reiterate that trial Courts are
under a binding duty to:
i. Appoint competent defence counsel at the earliest and ensure
continuous, effective legal representation throughout the trial;
ii. Provide sufficient time and opportunity for the defence to
prepare before framing charges and before recording evidence;
iii. Record in specific terms that defence counsel have been
furnished the complete case records for preparation.
iv. Frame each material circumstance distinctly and simply during
examination under Section 313 CrPC;
v. Hold an independent, substantive sentencing hearing,
particularly where the death penalty is contemplated;
vi. Conduct a real and meaningful balancing exercise between
aggravating and mitigating circumstances at the stage of
sentencing;
The procedural safeguards are not ornamental; they are
constitutional imperatives designed to ensure that justice is not only
done but seen to be done.
25. This Court expects all the trial Courts to remain alive to the
fact that the duty to conduct trials in accordance with the law becomes
all the more heightened when dealing with allegations involving
heinous offences punishable with death or life imprisonment. A
cavalier or casual approach to such trials not only imperils the rights
DSREF No. 02 of 2023 Page 21 of 23
of the accused but also erodes the legitimacy of the criminal justice
system itself. Courts must remain ever vigilant to uphold the
constitutional guarantee of fairness, diligence, and due process at
every stage of the proceedings. Lapses of the kind noticed herein must
be avoided at all costs.
26. We do not approve of the trial conducted by the learned
Additional District Judge-cum-Presiding Officer, Special Court
(POCSO), Sundargarh, in the instant case, with such fundamental
lapses in dealing with matters of importance in a Sessions trial.
27. In view of cumulative effect of the serious procedural
irregularities highlighted above, and placing reliance on the decision
of the Hon’ble Supreme Court in Sovaran Singh Prajapati vs. The
State of Uttar Pradesh, reported in 2025 SCC OnLine SC 351, where
the Hon’ble Court emphasised that where grave procedural
irregularities have vitiated the trial and have occasioned a miscarriage
of justice, a de novo trial becomes imperative to uphold the sanctity of
criminal proceedings, this Court is of the considered opinion that a
fresh trial is the only course available in the present case.
28. Accordingly, the conviction and sentence passed against the
Convict are set aside. The matter is remanded to the trial Court for a
de novo trial from the stage of framing of charges. The trial Court
shall ensure that the accused is afforded effective legal assistance, that
all prosecution witnesses are examined afresh, and that the accused is
properly examined under Section 313 CrPC, with each material
circumstance put to him clearly, distinctly, and separately. In the
event, the Court finds it necessary, may also make endeavour by
attracting the notice of the prosecution agency for engagement of a
DSREF No. 02 of 2023 Page 22 of 23
special prosecutor having adequate experience and acumen to
represent the Condemned Prisoner/Convict.
29. The trial Court is further directed to conduct the trial
expeditiously and conclude it within a period of six months from the
date of receipt of a copy of this order, if there be no legal impediment.
The trial Court shall at every stage be mindful of its solemn duty to
uphold the rights of both the victim and the accused, ensuring that the
administration of criminal justice does not suffer further indignity.
30. It is further clarified that the discussion undertaken by this
Court has been strictly limited to the issue of procedural irregularity.
Nothing stated herein shall be construed as an expression on the
merits of the case, which shall be independently considered by the
trial Court during the de novo trial, uninfluenced by any observations
made in this judgment.
31. Accordingly, the DSREF is answered.
32. In view of the answer made to this DSREF and its disposal
setting aside the impugned judgment and order, the JCRLA stands
disposed of.
(Chittaranjan Dash)
Judge
(B. P. Routray)
Judge
Signature Not Verified
Digitally Signed
Signed by: BIJAY KETAN SAHOO
Reason: Authentication
Location: HIGHA.K.Pradhan/Bijay
COURT OF ORISSA
Date: 24-Apr-2025 16:53:13
DSREF No. 02 of 2023 Page 23 of 23