While commuting death sentence of a POCSO case accused, who was convicted of rape and murder of a minor, the Supreme Court quoted the famous Irish Poet, Oscar Wilde to state that "The only difference between the saint and the sinner is that every saint has a past and every sinner has a future"
The Full-Bench comprising of Justice UU Lalit, Justice S. Ravindra Bhat and Justice Bela M. Trivedi observed that the maximum punishment prescribed may not always be the determinative factor for repairing the crippled psyche of the offender.
The Court touched upon range of factors, from duties of the Judge presiding over Criminal Trial to Rarest of Rare doctrine to conclude that one of the basic principles of restorative justice as developed by this Court over the years, also is to give an opportunity to the offender to repair the damage caused, and to become a socially useful individual, when he is released from the jail.
The Senior Counsel for the accused-appellant while fairly not disputing the visit of the appellant-accused at the house of the victim on the date and time as per the case of the prosecution and also not disputing the medical reports of the victim, tried to highlight certain discrepancies appearing in the evidence of the witnesses examined by the prosecution and placed reliance on Masalti Vs. State of U. P, 1964 Latest Caselaw 152 SC to submit that while appreciating the evidence of the partisan and interested witnesses, the Court should be very careful in weighing such evidence. He also relied upon various decisions of this Court to substantiate his submission that the case of the prosecution being dependent on the circumstantial evidence alone, the entire chain was required to be proved beyond reasonable doubt by leading cogent evidence, which the prosecution had failed to prove.
He averred that the trial court had also failed to bring to the knowledge of the accused the clear questions with regard to the incriminating evidence against the accused. The “last seen theory” as propounded by the prosecution was also not proved which could connect the accused with alleged crime. Merely because the accused had admitted his visit at the place of the victim, no inference could be drawn against the accused that he had committed the alleged crime of rape and murder. Invoking the provisions of Section 313 of Cr.P.C. he submitted that the said provisions must be observed faithfully and fairly. The attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against him so that he may be able to give such explanation as he may desire to give. Reliance was placed on Ajay Singh Vs. State of Maharashtra, 2007 Latest Caselaw 487 SC
He also submitted that there was a great media pressure on the investigating agency when the incident occurred and, therefore, the investigating officer without carrying out an in-depth investigation hurriedly submitted the charge-sheet against the accused. Since no advocate was ready to appear for the accused, the trial court had appointed a common advocate for both the accused from the legal service committee, however no fair trial was conducted. The purpose of the criminal trial is to conduct fair and impartial trial without being influenced by the extraneous consideration. Reliance was placed on K.Anbazhagan Vs. Superintendent of Police, Chennai & Ors, 2004 Latest Caselaw 107 SC
Supreme Court's Analysis
The Court at the outset noted that it is true that the entire case of the prosecution rested on the circumstantial evidence, inasmuch as though certain facts were admitted by the appellant-accused in his further statement under Section 313 of Cr.P.C., like his visit to the house of the victim on the previous evening of the alleged incident, and he having been arrested and brought back from Bhagalpur, Bihar, as per the transit remand granted by the concerned court, there was no eye witness to the alleged incident. Stating that law for the same is well-settled, the Court mentioned Shri Birdhichand Sharma Vs. First Civil Judge Nagpur & Ors, 1960 Latest Caselaw 281 SC.
The Court then examined whether the prosecution had proved beyond reasonable doubt, the entire chain of circumstances, not leaving any link missing for the accused to escape from the clutches of law in view of the principles laid down. It stated that there cannot be gainsaying that no conviction could be based on the statement of the accused recorded under section 313 of the Cr.P.C. and the prosecution has to prove the guilt of the accused by leading independent and cogent evidence, nonetheless it is equally settled proposition of law that when the accused makes inculpatory and exculpatory statements, the inculpatory part of the statement can be taken aid of to lend credence to the case of prosecution.
"In the instant case also, though the conviction of the appellant-accused could not be made merely on his admission of the circumstance of his visit to the house of the informant on the previous day evening of the fateful day, such admission could certainly be taken aid of to lend assurance to the evidence of the prosecution."
The Court after this, went on to examine the theory of “last seen together” propounded by the prosecution. It concluded that the same has weight and noted that once the theory of “last seen together” was established, the accused was expected to offer some explanation as to under which circumstances, he had parted the company of the victim. It hardly needs to be reiterated that in the criminal jurisprudence, the entire burden of proving the guilt of the accused rests on the prosecution, nonetheless if the accused does not throw any light upon the facts which are proved to be within his special knowledge in view of Section 106 of the Evidence Act, such failure on the part of the accused may also provide an additional link in the chain of circumstances required to be proved against him. Of course, Section 106 of the Evidence Act does not shift the burden of the prosecution on the accused, nor requires the accused to furnish an explanation with regard to the facts which are especially within his knowledge, nonetheless furnishing or non-furnishing of the explanation by the accused would be a very crucial fact, when the theory of “last seen together” as propounded by the prosecution is proved against him, to know as to how and when the accused parted the company of the victim.
It mentioned RAJENDER @ RAJESH @ RAJU vs. STATE (NCT OF DELHI), 2019 Latest Caselaw 1038 SC, Satpal Vs. State of Haryana, 2021 Latest Caselaw 114 SC, Surajdeo Mahto Vs. State of Bihar, 2021 Latest Caselaw 309 SC,
"In the instant case, though it was duly proved that the appellant-accused had taken the victim with him from the shop of fruit vendor, neither any explanation was offered by the appellant in his further statement under Section 313 of Cr.P.C. nor any concrete defence was taken during the course of the cross-examination of the witnesses. It is pertinent to note that after the alleged incident, he had run away to his native place at Bihar. Admittedly he was arrested therefrom and was brought back after obtaining the transit remand from the concerned court at Bhagalpur. The said conduct of the accused in absconding away also was a circumstance duly proved by the prosecution against him.'
On contention of appellant-accused with regard to the trial having not been conducted in fair manner, the Court noted that the concept of fair trial has been enshrined not only in Article 21 and 39 A of the Constitution of India, but also in Section 304 of the CrPC. Free and fair trial is sine qua non of Article 21. It cited Maneka Gandhi Vs. Union of India, 1978 Latest Caselaw 16 SC, to state that Free and fair trial is sine qua non of Article 21.
"It has been made clear that the procedure in criminal trials must be right, just and fair and not arbitrary, fanciful or oppressive. Article 39 A provides for free legal aid to the poor and weaker sections of the society and ensures justice for all. Section 304 of Cr.P.C. further provides that where in a trial before the Court of Session, the accused is not represented by a pleader, and where it appears to the court that the accused has no sufficient means to engage a pleader, the court shall assign a pleader for his defence at the expense of the State."
"This Court also time and again has emphasised the right to a fair trial by the courts, in the letter and spirit of the right to life and personal liberty flowing from the various guarantees enshrined in the Constitution of India. We may hasten to add at this stage that right to fair and speedy trial applies as much to the victim as the accused. Right to get speedy justice applies to the victim as well. Hence considering the gravity and seriousness of the crime, if the trial is expedited by the Court, it could not to be said that such trial was not fair to the accused. Of course, while expediting the trial, it is imperative on the Court to see that the due procedure is followed during the course of trial."
In the present case, the Court noted that there is nothing on record to suggest that the due procedure was not followed or that the appellant-accused had suffered on account of deprivation of the legal aid or legal assistance to him.
"Though, it is true that the “Equality, Justice and Liberty” is the trinity of fair trial recognized in the administration of justice, it is equally true that such concept of fair trial entails triangulation of interest of the accused, the victim and the society at large. In the overzealous approach to protect the rights of the accused, the rights of the victim who is the most aggrieved should not be either undermined or neglected. Similarly, the cases involving heinous crimes, the society at large would also be an important stake-holder. Interest of the society, which acts through the State and prosecuting agencies, should also not be treated with disdain. Therefore, the court conducting the trial/appeal is not only obliged to protect the rights of the accused but also the rights of the victim, and the interest of the society at large. The Judge presiding over the criminal trial has not only to see that innocent man is not punished but has also to see that guilty man does not escape. Both are his public duties required to be discharged very diligently to maintain the public confidence and uphold the majesty of the law."
Conclusion
The Court concluded that the case on hand could not be said to be the “rarest of rare case”, where the question of awarding lesser punishment than the death penalty is totally foreclosed. On plea to ponder on the documents produced, the Court noted that once again one of the most barbaric and ugly human faces has surfaced.
"A tiny bud like girl was smothered by the appellant before she could blossom in this world. The monstrous acts of the appellant suffocated the victim to such an extent that she had no option but to leave this world. Once again, all the Constitutional guarantees have failed to protect the victim from the clutches of the demonizing acts of the appellant. In the opinion of the Court, any sympathy shown to the appellant would lead to miscarriage of justice. However, it has been brought to the notice of this Court that in series of judgements, this Court has not treated such case as the rarest of rare case."
The Court cited Bachan Singh Vs. State of Punjab, 1982 Latest Caselaw 62 SC, SHATRUGHNA BABAN MESHRAM vs. STATE OF MAHARASHTRA, 2020 Latest Caselaw 585 SC, and in finality commuted the sentence of death for the sentence of imprisonment for life, for the offence punishable under Section 302 IPC.
"Since, Section 376A IPC is also applicable to the facts of the case, considering the gravity and seriousness of the offence, the sentence of imprisonment for the remainder of appellant’s natural life would have been an appropriate sentence."
Case Title: MOHD. FIROZ vs STATE OF MADHYA PRADESH
Case Details: CRIMINAL APPEAL NO. 612 OF 2019
Coram: Justice UU Lalit, Justice S. Ravindra Bhat and Justice Bela M. Trivedi
Read Judgement Here:
Share this Document :Picture Source :
