'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 Background

At 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 trial

The 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 representation

Keeping 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 lack of representation a State Defence Counsel (SDC) was appointed on behalf of the convict on August 28, 2017, but hearing on the framing of charges was held on the very same day and charges were also framed. Therefore, the SDC got hardly any effective opportunity to defend the convict at this stage. On the very same day, the SDC filed a withdrawal memo seeking to withdraw herself, which was allowed.

After this, almost five Advocates were engaged through the legal aid channel at various stages of trial spanning over six years, only to see them withdraw from the case. This was found to be disturbing by the Division Bench which immediately got reminded of the dictum laid down by the Supreme Court in Ashok v. State of Uttar Pradesh, 2024 LiveLaw (SC) 941 wherein roles of prosecutors and Court were heavily emphasized in criminal trials, especially involving grievous offences.

The Apex Court had reiterated that if legal aid is provided only for the sake of providing it, it will serve no purpose. It must be effective and 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. It had also stressed on the need to ensure that the same legal aid Advocate is continued throughout the trial.

“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.”

Non-supply of case papers to the convict

The Court recorded another disturbing feature of the case, i.e. the TCR did not reflect that the legal aid counsel/SDCs were ever furnished with the complete case records for perusal or preparation. It held that the absence of any record showing that the case materials were supplied to the successive SDCs appointed during the course of trial further reinforces that the appellant was denied the substantive benefit of legal assistance, thereby rendering the trial wholly unfair and vitiated

“The Court's duty under Section 304 CrPC is not discharged by mere appointment; it must vigilantly 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,” it added.

Ineffective cross-examination

The Court further noted that when key prosecution witnesses were re-called as per Section 311 of the CrPC, the SDC appointed to represent the convict failed to cross-examine them.

“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,” it said.

Mechanical recording of accused statement U/S 313 CrPC

It was argued for the convict that his statement under Section 313 of CrPC is neither exhaustive nor comprehensive. The Court perused the case record and found that the questions put to the convict were excessively lengthy, spanning pages after pages, and covered multiple factual circumstances in a single breath.

It reiterated that the opportunity provided under Section 313 is not a mere formality but a substantive and valuable right conferred upon the accused. Thus, any omission to properly and fairly examine the accused under this Section constitutes a material irregularity which strikes at the root of a fair trial, thereby vitiating the proceedings to that extent. Reliance was placed on Raj Kumar v. State (NCT of Delhi), 2023 LiveLaw (SC) 434.

“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 of evidence to be utilised against him, including the entire evidence of the Investigating Officer,” the Court added.

Same-day sentencing without examining mitigating circumstances

The Court stressed that in the cases where the death penalty is a possible sentence, 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.

However, in this case, the extreme sentence of death was imposed on the same day of conviction. Therefore, the defence was given no meaningful opportunity to prepare submissions on mitigating circumstances. Referring to Santa Singh v. State of Punjab (1976) and Sovaran Singh Prajapati v. State of Uttar Pradesh, 2025 LiveLaw (SC) 213, the Court reiterated that a separate, substantive hearing on sentence must be held, distinct from the stage of conviction, in such cases.

“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,” it held.

From a cumulative evaluation of the record, the Court arrived at the conclusion that the trial proceedings were plagued by multiple 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 sentence hearing. Taken together, it observed, they reveal a trial conducted in a perfunctory, mechanical, and constitutionally impermissible manner.

“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”, it starkly observed.

Accordingly, the judgment of conviction and sentence of death were set aside with a direction to the trial Court to hold a de novo trial from the stage of framing of charges. It also asked to conclude the trial preferably within six months.

Case Title: State of Odisha v. Sanjeeb Kerketta

Case No: DSREF No. 02 of 2023 & JCRLA No. 142 of 2023

Date of Judgment: April 23, 2025

Counsel for the State: Mr. P.S. Nayak, Addl. Govt. Advocate

Counsel for the Condemned Prisoner: Mr. P. Mohanty, Advocate

Citation: 2025 LiveLaw (Ori) 67

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