Orissa High Court
Khudia @ vs State Of Odisha on 22 March, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
JCRLA No. 76 Of 2019
From judgment and order dated 30.08.2019 passed by the 3rd
Additional Sessions Judge, Balasore in Sessions Trial No.22 of
2019 (191 of 2018).
-----------------------------
Khudia @
Khudiram Tudu ....... Appellant
-Versus-
State of Odisha ....... Respondent
For Appellant: - Mr. Jagannath Kamila
For State: - Mr. Rajesh Tripathy
Addl. Standing Counsel
-----------------------------
P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
---------------------------------------------------------------------------------------------------
Date of Hearing and Judgment: 22.03.2023
---------------------------------------------------------------------------------------------------
S.K. SAHOO, J. The appellant Khudia @ Khudiram Tudu faced trial in
the Court of learned 3rd Additional Sessions Judge, Balasore in
Sessions Trial Case No.22 of 2019 (191 of 2018) for offence
punishable under section 376(2)(l) of the Indian Penal Code on
the accusation that he being a relative of the son-in-law of the
// 2 //
informant (P.W.4) committed rape on the victim (P.W.9), the
disabled daughter of the informant.
The learned trial Court vide impugned judgment and
order dated 30.08.2019 found the appellant guilty under section
376(2)(l) of the Indian Penal Code and sentenced him to
undergo R.I. for a period of ten years and to pay a fine of
Rs.5,000/- (rupees five thousand), in default, to undergo R.I.
for a further period of one year.
2. The prosecution case, as per the written report
submitted by Lepa Hansda (P.W.4) on 17.06.2018 at Jaleswar
Police Station, in short, is that on 15.06.2018 in the evening
hours, the informant after returning from his work, came to
know that during his absence, the victim (P.W.9) who is his elder
daughter had gone somewhere with her mobile phone and when
he tried to search her in the locality, he could not trace her out
in that night. On 17.06.2018 at about 2.00 p.m., his son-in-law
Banamali Tudu (P.W.5) informed him that on 15.06.2018, the
victim (P.W.9) came to his house and stayed in the night but on
the next day i.e. on 16.06.2018, she had gone towards the
countryside but did not return in the night. On 17.06.2018
morning, the villagers noticed the victim lying on the village road
in an abnormal condition. The villagers informed the family
// 3 //
members of victim who shifted her to Jaleswar hospital and
found that the victim was deaf and dumb and was under
treatment and thereafter the informant (P.W.4) came to know
that the appellant had committed rape on the victim causing
injuries on her person. Thereafter, P.W.4 lodged the first
information report before the Inspector in-charge of Jaleswar
police station on 17.06.2018.
On the basis of such written report, Bhaskar Chandra
Patra (P.W.12), S.I. of Police, Jaleswar police station registered
Jaleswar P.S. Case No.198 dated 17.06.2018 under section
376(2)(f)(l) of the Indian Penal Code and in absence of the
Inspector in-charge of Jaleswar police station, he himself took up
investigation of the case. He examined the informant and
recorded his statement. Even though the I.O. requested one
Priyanka Behera, a lady police officer to record the statement of
the victim, but since the victim was a deaf and dumb girl and
could not explain anything about the occurrence and her signs
and gesture was not understandable, therefore, her statement
under section 161 of Cr.P.C. could not be recorded. The father of
the victim produced documents relating to her disability which
were seized as per seizure list marked as Ext.2. The victim was
sent for medical examination and P.W.10, the doctor of F.M.T.
// 4 //
Department of Fakir Mohan Medical College and Hospital,
Balasore examined her. Thereafter the I.O. prepared the spot
map marked as Ext.7. The appellant was arrested on 18.06.2018
and he was also sent for medical examination. The wearing
apparels of the victim were seized. Prayer was made to the
learned J.M.F.C., Jaleswar for recording of the 164 Cr.P.C.
statement of the victim but it could not be possible. After
completion of investigation, charge sheet has been submitted
against the appellant under sections 376(2)(f)(l)(n) of the I.P.C.
on 28.09.2018
3. During course of trial, in order to prove its case, the
prosecution examined fourteen witnesses.
P.W.1 Gourahari Hui is the scribe of the F.I.R. (Ext.1)
and he stated that on 17.06.2018 in the early morning, he
noticed the victim lying on the village road in an abnormal
condition and her wearing apparels were covered with mud and
he further stated that as per his advice, the victim was shifted to
the hospital.
P.W.2 Maina Tudu is the younger sister of the victim.
She stated that the victim had been to their house during Raja
festival on a Friday and on the next day, she had been to the
village in the evening and did not return and the appellant had
// 5 //
also searched for her in her home in that night. She further
stated that on the next day, she got information that the victim
was lying unconscious in the field and her wearing apparels were
torn. On getting such information, she herself, her husband and
other co-villagers arrived there and found the victim in a state of
unconsciousness. They took her to the house and thereafter, she
was shifted to the hospital. She further stated that when the
victim regained her sense, she asked the victim as to who was
responsible for her such condition, but she could not tell
anything and she asked the victim whether she could recognize
the person responsible as she was raped. She further stated that
her husband called her father, who is the informant in the case
and asked him to lodge the F.I.R. at the police station and then
the police brought the appellant to the police station where the
victim could recognize him.
P.W.3 Salama Baskey, who is a co-villager of P.W.2,
has been declared hostile by the prosecution.
P.W.4 Lepa Hansda, who is the father of the victim,
is the informant in the case. He stated that on getting
information from his son-in-law Banamali Tudu (P.W.5) that the
victim had been raped, he went to the hospital and from the
sign, the victim expressed him that the appellant raped her.
// 6 //
P.W.5 Banamali Tudu is the son-in-law of the
informant and brother-in-law of the victim and he stated in the
same manner as that of his wife (P.W.2).
P.W.6 Shaktipada Mishra was the constable attached
to Jaleswar Police Station is a witness to the seizure of copy of
the handicapped certificate and xerox copy of Aadhaar card from
the possession of P.W.4 as per seizure list Ext.2.
P.W.7 Dangu Paraja was the O.A.P.F., Jaleswar Police
Station and he is a witness to the seizure of copy of the
handicapped certificate and xerox copy of Aadhaar card from the
possession of P.W.4 as per seizure list Ext.2. He is also a witness
to the seizure of biological sample of the appellant as per seizure
list Ext.3.
P.W.8 Bhabanikanta Swain was the Assistant Teacher
of the school and on being summoned by the police, he appeared
before the Court of learned J.M.F.C., Jaleswar and he stated that
he asked the victim as to what happened to her in sign as she
was deaf and dumb but she could not follow his sign.
P.W.9 is the victim and being a deaf and dumb girl,
her statement was recorded with the assistance of an interpreter
(P.W.4), who is her father. She stated through the interpreter
that while she had been to the marital house of her younger
// 7 //
sister on the Raja festival and while in the evening, she had been
to the countryside to have a pleasure trip, the appellant took her
forcibly, physically assaulted her, tore her wearing apparels and
committed rape on her. She further stated that she disclosed the
incident to her sister who took her to the hospital and she
further stated that at the time of occurrence, she was wearing a
red colour chudidar and a red pant.
P.W.10 Dr. Motirmay Giri is the Medical Officer who
examined the victim on police requisition. He proved his report
as per Ext.4.
P.W.11 Tapan Kumar Hazra was the constable
attached to Jaleswar police station. He is a witness to the seizure
of biological sample of the victim so also the wearing apparels of
the appellant as per seizure lists Exts.5 & 6 respectively.
P.W.12 Bhaskar Chandra Patra was the S.I. of police,
Jaleswar Police Station and he is the Investigating Officer of this
case who on completion of investigation, submitted charge
sheet.
P.W.13 Dr. Ganesh Chandra Pal was the Medical
Officer who examined the appellant on 18.06.2018 on police
requisition and proved the report vide Ext.8.
// 8 //
P.W.14 Dharanidhar Samantray who was the
constable attached to Jaleswar police station and he is a witness
to the seizure of biological samples of the victim as per seizure
list Ext.5.
The prosecution exhibited eleven documents. Ext.1 is
the F.I.R., Exts.2, 3, 5 and 6 are the seizure lists, Exts.4 & 8 are
the injury reports, Ext.7 is the spot map prepared by the I.O.,
Ext.9 is the requisition for chemical examination of seized
exhibits, Ext.10 is the spot map prepared by the Talasildar,
Jaleswar and Ext.11 is the chemical examination report.
The prosecution also proved six material objects.
M.O.I is the red colour chudidar shirt, M.O.II is one red colour
chudidar pant, M.O.III is one sky blue colour half pant of
appellant, M.O.IV is the pubic hair of the appellant, M.O. V is the
pubic hair of the victim and M.O. VI is the vaginal swab of the
victim.
4. The defence plea of the appellant is one of complete
denial. No witness was examined on behalf of the defence.
5. The learned trial Court after assessing the oral and
documentary evidence available on record, came to hold that
there is no material that the victim had a strong motive to falsely
implicate the appellant under the charge in question and in the
// 9 //
absence of any evidence showing the possibility of false
implication with an ulterior motive, there being no theory of the
previous enmity, the argument that the victim falsely implicated
the appellant at the instance of her father does not appeal to
reason. The learned trial Court further held that there is a ring of
truth around the victim's testimony when she deposed about the
act committed by the appellant against her body. It is further
held that minor contradictions and inconsistencies are bound to
occur in a criminal trial and that alone cannot be a basis to
suspect the prosecution case as embroidered one. It was further
held that except the bald statement of the appellant under
section 313 of the Cr.P.C. that he has been falsely implicated
and denied to have committed any offence as he is innocent,
nothing has been brought on record that the victim (P.W.9) had
any motive to falsely implicate him. Further no explanation has
been furnished by the appellant as to why the victim had
deposed against him in such a heinous crime. Moreover, there is
no material to show that there is any inimical relationship
between the victim or her family members and the appellant
prior to the occurrence and accordingly, it was held that the
prosecution has successfully established the charge against the
appellant.
// 10 //
6. Mr. Jagannath Kamila, learned counsel for the
appellant contended that the appellant has been seriously
prejudiced as the State Defence Counsel was engaged by the
learned trial Court on the date of examination of the victim
(P.W.9), who is a very vital witness for the prosecution and no
police papers were supplied to him and the learned trial Court
asked the State Defence Counsel to go through the case record
and cross-examine the victim. It is submitted that the learned
State Defence Counsel must not have got opportunity to go
through the case records deeply, to prepare the case thoroughly,
to have an interaction with the appellant for such preparation for
which he just put few questions to the victim in the cross-
examination and closed it on account of pressure of the learned
trial Court, which was not proper and justified and therefore, it is
a fit case where the impugned judgment and order of conviction
should be set aside and the matter be remanded to the learned
trial Court for affording opportunity to the appellant to engage
his own counsel, if he so likes and in case he expresses his
inability, then to engage an experienced counsel well versed in
criminal law and expertised in conducting criminal trial and to
give sufficient time to him for preparation of the case. Learned
counsel for the appellant further submitted on merit of the case
// 11 //
that mentioning the name of the appellant in the F.I.R. which
was lodged on 17.06.2018 is a doubtful feature inasmuch as the
evidence of P.W.2, the sister of the victim indicates that the
victim could not recognize the person who was responsible for
commission of rape on her. It is argued that though P.W.2 has
stated that when the police brought the appellant to the police
station, the victim could recognize him, but the same is not
corroborated by the evidence of the I.O. Learned counsel further
argued that though the appellant was arrested on 18.06.2018,
the I.O. has not stated that at any point of time, the victim was
called upon to the police station and was asked to identify the
appellant. Learned counsel further submitted that in view of the
evidence of the doctor (P.W.10) that there was no recent sign
and symptom of penetrative sexual assault and intercourse on
the victim, it is difficult to accept the evidence of victim
regarding commission of rape on her. He further submitted that
though the victim stated in her cross-examination that she bit
the appellant in his two hands forcibly, but the doctor (P.W.13),
who examined the appellant on 18.06.2018, specifically stated
that he had not noticed any bite mark on both the hands of the
appellant and even if the statement of the victim that the
appellant took her forcibly, physically assaulted and tore her
// 12 //
wearing apparels is accepted but bereft of any clinching evidence
regarding commission of rape on the victim, it may at best make
out a case under section 354 of the Indian Penal Code.
Mr. Rajesh Tripathy, learned Addl. Standing Counsel
for the State, on the other hand, argued that it seems that the
victim has been cross-examined on every aspects and therefore,
it cannot be said that the learned State Defence Counsel could
not get opportunity to prepare the case. He further argued that
even though the medical evidence does not corroborate the
statement of the victim regarding rape committed on her, but
that cannot be a ground to disbelieve the prosecution case.
Learned counsel further submitted that though during the course
of investigation, the I.O. tried to record the statement of the
victim through one lady police officer, namely, Priyanka Behera,
but it could not be successful as the lady police officer could not
understand the sign of the victim and therefore, the learned trial
Court has rightly engaged the father of the victim as he was the
best person to follow the sign given by the victim and interpret
before the Court. He further submitted that the victim has
testified through his father as interpreter that she had been to
the marital house of her sister at village Mahisamunda on
account of Raja festival and on the next day evening, she had
// 13 //
been to the countryside to have a pleasure trip and the appellant
took her forcibly, physically assaulted her, tore her wearing
apparels and committed rape on her, which has not been shaken
in the cross-examination. Learned counsel further argued that
the material objects were called for by this Court and it was
received and opened and it is found that in fact the statement of
the victim that the appellant tore her wearing apparels, which
are marked as M.O. I and M.O.II is found to be correct and
therefore, the learned trial Court has rightly convicted the
appellant under section 376(2)(l) of the I.P.C. as the
documentary evidence as well as oral evidence indicates that the
victim was a disabled lady.
Whether proper opportunity has been provided to the
appellant during trial to defend his case:
7. Adverting to the contentions raised by the learned
counsel for the respective parties, let me first deal with the point
raised whether proper opportunity has been provided to the
appellant during trial to defend his case particularly when the
evidence of the victim (P.W.9) was recorded. The victim was
examined on 11.04.2019. The order sheet dated 11.04.2019 of
the learned trial Court is extracted herein below:-
"The accused Khudiram Tudu is produced from
Dist. Jail, Balasore through escort parties. The
// 14 //
victim girl is present in the Court. The learned
A.P.P and learned S.D.C. are also present. The
interpreter, namely, Bhabani Kanta Swain who
was summoned by this Court, is also present.
The interpreter was examined on oath. He
stated that earlier he was appointed as such in
the Court of J.M.F.C, Jaleswar but he could not
be able to interpret the signs of the victim and
the victim was also unable to follow his sign
due to lack of formal education. The interpreter
was cross-examined and discharged as P.W.8.
The learned A.P.P. files a petition to appoint the
father of the victim girl as interpreter in this
case as he is acquainted with the signs of the
victim who is admittedly deaf and dumb. The
learned S.D.C. was directed to file the objection
to the petition but he sought for time and
submitted that the accused is behind the bar
and an opportunity is to be provided to him to
file objection. Admittedly, the accused is behind
the bar. It is 10 past 11 O' clock. Sufficient
opportunity is given to the accused to file
objection to the petition filed on behalf of the
prosecution by the learned A.P.P. by 12 O'
clock. As the accused has been in custody, his
case is to be considered. Similarly, the victim
girl who is a deaf and dumb who hails from
Jaleswar which is a distance of 50 km. from
this Court, is coming to the Court time and
again knocking the door of the Court for
// 15 //
justice. So, in such backdrop of the case, the
Court should not act as a mute spectator. It
has some duty towards the accused, victim girl
so also to the society. In such backdrop of the
case, the conscience of the Court clinches not
to return the victim girl again without her
examination. Put up later at 12 O' clock. The
learned Addl. P.P. is directed to serve the copy
of the petition upon the learned S.D.C.
forthwith.
Sd/-
3rd Addl. Sessions Judge, Balasore
Later/11.04.19
The learned S.D.C., namely, Radha Kanta
Mohapatra files a memo on behalf of the U.T.P.
mentioning therein that the petition for the first
time was filed by the learned Addl. P.P. The
copy was served with objection and the prayer
of the learned S.D.C. seeking time to file
objection was turned down by the Court for
which the U.T.P. shall be highly prejudiced. It
goes without saying that prior to today, the
victim girl who is admittedly a dumb has come
to the Court several times. The Court feels that
it has also some duty towards the victim and
the victim should not come to the Court time
and again for her deposition. After filing the
memo, the learned S.D.C. Sri Radha Kanta
Mohapatra left the Court room and after call,
// 16 //
he did not appear to cross-examine the victim
girl. Since the learned S.D.C. did not turn to
cross-examine the victim girl who was
discharged from this case and learned counsel
Sri Bidyadhar Sahu whose name finds place in
the list of S.D.C., was appointed afresh who
has given sufficient time to inspect the case
record and to thoroughly go through it. After
inspecting and going through the record, the
learned counsel Mr. B.D. Sahu became ready to
cross-examine the victim girl and gave his
consent to complete the cross-examination the
victim girl today. Accordingly, the victim girl
was examined and cross-examined through
interpreter and discharged as P.W.9. Issue
summons to the rest of the charge sheeted
witnesses. This Court expresses its happiness
and gives thank to the learned Advocate Sj.
Bidyadhar Sahu for his abrupt action extending
assistance to the Court and also ensuring
justice, is being done to the victim. Put up on
18.04.19 for further trial.
Sd/-
(Illegible)
rd
3 Addl. Sessions Judge, Balasore"
The order sheet thus indicates that the learned Addl.
Public Prosecutor filed a petition on 11.04.19 to appoint the
father of the victim girl as interpreter to the evidence likely to be
given by the victim and copy of the petition was handed over to
// 17 //
the learned S.D.C. and time was granted by the Court to the
learned S.D.C. from 11.10 a.m. till 12 noon to file objection to
such petition and when learned S.D.C. sought for time to file
objection, the learned trial Court rejected the same mainly on
the ground the victim girl had come to the Court several times.
Then the learned S.D.C. left the Court room and did not appear
for the recording of the evidence of the victim and since he did
not turn up, another counsel Mr. Bidyadhar Sahu, whose name
found place in the list of State Defence Counsel was appointed
and he was given time to inspect the case record and after
inspecting the record, learned counsel Mr. Bidyadhar Sahu got
ready to cross-examine the victim and gave his consent to
complete the cross-examination of the victim on that day and
accordingly, the evidence of victim girl was recorded taking the
assistance of her father as interpreter and she was discharged.
On going through the order sheet of the learned trial
Court dated 11.04.2019, it appears that the Court was bent upon
to complete the recording of the evidence of the victim on that
day itself. Though it is observed in the order dated 11.04.2019
that prior to that date, the victim had come to the Court several
times, but I have gone through the order sheet and it appears
that after the charge was framed on 15.02.2019, the date of trial
// 18 //
was fixed to 11.03.2019 and on that day, P.W.1, P.W.2 and
P.W.3 were examined and on the next date i.e. on 20.03.2019,
P.W.4 and P.W.5 were examined and then on 25.03.2019, P.W.6
and P.W.7 were examined. The order sheet does not indicate
that after framing of the charge and prior to 11.04.2019, on any
date the victim had appeared to give her evidence. Therefore,
the observation made by the learned trial Court that prior to that
day, the victim girl had come to the Court several times is not
acceptable.
Potter Stewart quotes, "Fairness is what justice really
is". The engagement of State defence counsel in the trial Court should
not be a mere compliance of provisions of law or an empty formality.
It must not be a sham or an eye-wash but with all intent, purpose
and sincerity, the lawyer must conduct the case of the accused. The
due process of law incorporated in our constitutional system
demands that a person not only be given an opportunity of being
heard before being condemned, but also that such opportunity
be fair, just and reasonable. If the conducting counsel engaged for
an accused appears to be superfluous and there is real contest, right to
fair trial would be denied. It is the duty of the Court while
appointing the State defence counsel to supply him all relevant
papers and to give sufficient time to him for preparing the
// 19 //
defence, otherwise such defence would only be a farce without
its real purpose.
In the case of Kamala Domen -Vrs.- State
reported in 1971 (1) C.W.R. 636, it is held that the duty of
the Sessions Judge in appointing State Defence Counsel is to
give sufficient time to the counsel for preparing the defence and
supply him all the relevant papers, otherwise there cannot be a
proper and fair trial. In an appropriate case, there should be a
remand for fresh trial.
In the case of Mangulu Behera -Vrs.- State
reported in 1971 (2) C.W.R. 422, where the State defence
counsel was appointed when the Court began its sitting for
taking evidence in a sessions trial and no time was there for the
counsel to be acquainted with the facts of the case and to find
out what defence is to be taken, it was held that there was no
scope for the counsel to get instruction for cross-examination of
the prosecution witnesses and the trial was therefore held to be
vitiated and retrial was ordered.
In the case in hand, the State Defence Counsel
refused to act when the learned trial Court did not grant time to
file objection to the petition filed by the Addl. Public Prosecutor
seeking permission for taking assistance of the father of the
// 20 //
victim as an interpreter and left the accused undefended. In such
a situation, it was the duty of the trial Judge to provide him legal
assistance at State's expense by appointing a State Defence
Counsel, who would faithfully, diligently and to the best of his
abilities discharge his duties in defence of the accused. The
words employed in section 304(1) Cr.P.C. i.e. "...the accused is
not represented by a pleader", do not and cannot mean a kind of
paper and sham representation as distinguished from a
substantial, bonafide and diligent representation. Not ensuring
the reasonable and diligent representation by counsel or pleader
to the accused would not relieve the State of its obligation under
section 304(1) Cr.P.C. and could not pass the test of fairness
which every action of the State must withstand in keeping with
the obligation under Articles 14 and 21 of the Constitution.
In the case of Mohd. Hussain -Vrs.- The State
(Govt. of NCT) Delhi reported in (2012) 2 Supreme Court
Cases 584, it is held as follows:-
"51. In my opinion, the right of a person charged
with crime to have the services of a lawyer is
fundamental and essential to fair trial. The right
to be defended by a legal practitioner, flowing
from Article 22(1) of the Constitution has further
been fortified by the introduction of the directive
principles of State policy embodied in Article 39-
// 21 //
A of the Constitution by the Forty-second
Amendment Act of 1976 and enactment of sub-
section (1) of Section 304 of the Code of
Criminal Procedure. Legal assistance to a poor
person facing trial whose life and personal
liberty is in jeopardy is mandated not only by
the Constitution and the Code of Criminal
Procedure but also by International Covenants
and Human Rights Declarations. If an accused
too poor to afford a lawyer is to go through the
trial without legal assistance, such a trial cannot
be regarded as reasonable, fair and just. The
right to be heard in criminal trial would be
inconsequential and of no avail if within itself it
does not include right to be heard through
counsel.
52. One cannot lose sight of the fact that even
intelligent and educated men, not trained in law,
have more than often no skill in the science of
law if charged with crime. Such an accused not
only lacks both the skill and knowledge
adequately to prepare his defence but many a
time loses his equilibrium in face of the charge.
A guiding hand of counsel at every step in the
proceeding is needed for fair trial. If it is true of
men of intelligence, how much true is it for the
ignorant and the illiterate or those of lower
intellect! An accused without the lawyer faces
the danger of conviction because he does not
know how to establish his innocence."
// 22 //
In the case of Anokhilal -Vrs.- State of Madhya
Pradesh reported in (2019) 20 Supreme Court Cases 196,
the Hon'ble Supreme Court taking into account Articles 39-A and
21 of the Constitution of India, held as follows:-
"31.1. In all cases where there is a possibility of
life sentence or death sentence, learned
advocates who have put in minimum of 10
years' practice at the Bar alone be considered to
be appointed as Amicus Curiae or through legal
services to represent an accused.
31.2. In all matters dealt with by the High Court
concerning confirmation of death sentence,
Senior Advocates of the Court must first be
considered to be appointed as Amicus Curiae.
31.3. Whenever any learned counsel is
appointed as Amicus Curiae, some reasonable
time may be provided to enable the counsel to
prepare the matter. There cannot be any hard
and fast rule in that behalf. However, a
minimum of seven days' time may normally be
considered to be appropriate and adequate.
31.4. Any counsel, who is appointed as Amicus
Curiae on behalf of the accused must normally
be granted to have meetings and discussion with
the concerned accused. Such interactions may
prove to be helpful as was noticed in Imtiyaz
Ramzan Khan -Vrs.- State of Maharashtra :
(2018) 9 Supreme Court Cases 160."
// 23 //
In the case of Ramanand -Vrs.- State of Uttar
Pradesh reported in 2022 SCC OnLine SC 1396, it is held as
follows:-
"120. It is by far now well-settled for a legal
proposition that it is the duty of the Court to see
and ensure that an accused put on a criminal
trial is effectively represented by a defence
counsel, and in the event on account of
indigence, poverty or illiteracy or any other
disabling factor, he is not able to engage a
counsel of his choice, it becomes the duty of the
Court to provide him appropriate and meaningful
legal aid at the State expense. What is meant by
the duty of the State to ensure a fair defence to
an accused is not the employment of a defence
counsel for namesake. It has to be the provision
of a counsel who defends the accused diligently
to the best of his abilities. While the quality of
the defence or the caliber of the counsel would
not militate against the guarantee to a fair trial
sanctioned by Articles 21 and 22 of the
Constitution, a threshold level of competence
and due diligence in the discharge of his duties
as a defence counsel would certainly be the
constitutional guaranteed expectation. The
presence of counsel on record means effective,
genuine and faithful presence and not a mere
farcical, sham or a virtual presence that is
illusory, if not fraudulent."
// 24 //
When the learned Additional Public Prosecutor filed a
petition on 11.04.2019 to appoint P.W.4, the father of the victim
girl as an interpreter to the recording of evidence of the victim
and the copy was served on the learned State Defence Counsel
Mr. Radha Kanta Mohapatra and he was given time only from
11.10 a.m. till 12 noon to file objection to such petition, he filed
a memo on behalf of the U.T.P. seeking time to file objection but
that was turned down by the learned trial Court and the reason
assigned that the victim had come to the Court several times is
not borne out from the record. When the learned State Defence
Counsel did not appear when the evidence of the victim was
recorded with the help of her father as interpreter, the learned
trial Court not only engaged another State Defence Counsel,
namely, Shri Bidyadhar Sahu whose name found place in the
panel of State Defence Counsel, but also obtained consent from
him to complete the cross-examination of the victim on that day
itself. This is clearly not in consonance with law in view of the
settled principle enunciated in different decision of this Court as
well as the Hon'ble Supreme Court. When the accused was facing
trial for an offence which carries punishment of rigorous
imprisonment for a term which shall not be less than ten years,
but which may extend to imprisonment for life, which shall mean
// 25 //
imprisonment for the remainder of his natural life and he shall
also be liable to fine, the learned trial Court should not have
hurriedly recorded the evidence of the victim without giving
proper opportunity to the learned State Defence Counsel to
prepare the case, obtain instruction from the accused and file
objection to the petition filed by the learned Addl. Public
Prosecutor. Engaging a new State Defence Counsel without
providing him police papers and just asking him to inspect the
case record and to cross-examine the victim and also taking
consent from him to conclude the cross-examination on that day
itself, in my humble view, is a gross illegality and the accused
has been seriously prejudiced by such action of the trial Court. A
criminal trial is not an IPL T20 match where every 'substitute
player' can be an 'impact player'.
In view of the foregoing discussions, I am of the
humble view that no proper opportunity has been provided to the
learned State Defence Counsel to prepare the case thoroughly
and to cross-examine the victim. Accordingly, the impugned
judgment and order of conviction of the appellant under section
376(2)(l) of the Indian Penal Code is hereby set aside and the
matter is remanded to the learned trial Court.
// 26 //
The trial shall now commence from the stage of
giving opportunity to the learned defence counsel for further
cross-examination of the victim (P.W.9). The learned trial Court
shall give due opportunity to the appellant to engage his own
counsel, if he so likes and if the appellant expresses his inability
to engage his own counsel, a State Defence Counsel shall be
engaged to defend the accused. While engaging the State
Defence Counsel, the learned trial Court shall see that a
competent counsel who is having extensive practice in criminal
law particularly having vast experience in conducting sessions
trial and ability to provide meaningful assistance to the accused
is engaged. The copies of complete police papers and other
documents as required to be supplied to the accused under
section 207 of Cr.P.C., copy of heading of charge in Form No.32,
the deposition copies of all the witnesses, copies of exhibited
documents be supplied to the engaged counsel at least a week
before the date is fixed for recording further cross-examination
of the victim for preparation and opportunities shall be granted
to the counsel to have meetings and discussion with the accused
so that the accused would feel confident that the counsel chosen
by the Court has adequate time and material to defend him
properly. The learned defence counsel shall be provided
// 27 //
opportunity not only to further cross-examine the victim but also
the other witnesses, who have been examined by the
prosecution, if the learned counsel so desires by filing a petition
under section 311 of Cr.P.C. for recall indicating specific
questions to be put to the witnesses and thereafter opportunity
shall be provided to adduce defence evidence, if any and then
argument shall be heard and after assessing the evidence on
record, fresh judgment shall be pronounced in accordance with
law. The evidence of the victim shall be recorded in Vulnerable
Witness Deposition Centre, Balasore. The case is remanded to
the Court of learned trial Court with a direction to dispose of the
case as early as possible preferably within a period of three
months from the date of receipt of copy of this judgment.
Since I have remanded the matter to the learned
trial Court for fresh adjudication and the appellant is in judicial
custody since 19.06.2018, he shall be released on bail on such
terms and conditions as may deem just and proper by the
learned trial Court with a specific condition that he shall appear
before the Court on each date when the case would be posted for
trial and shall not try to tamper with the evidence.
// 28 //
The original lower Court records, which have been
received along with the material objects, be sent down to the
learned trial Court immediately.
Before parting with the case, I would like to put on
record my appreciation to Mr. Jagannath Kamila, the learned
counsel for rendering his valuable help and assistance towards
arriving at the decision above mentioned.
................................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 22nd March 2023/PKSahoo/RKMishra
