Balram Singh @ Baliram Singh @ ... vs The State Of Bihar
2022 Latest Caselaw 2477 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                     DEATH REFERENCE No.8 of 2021
    Arising Out of PS. Case No.-888 Year-2020 Thana- DEHRI TOWN District- Rohtas
======================================================

The State of Bihar ... ... Petitioner/s Versus Balram Singh @ Baliram Singh @ Munna, Son of Late Shyam Narayan Singh, Resident of Village- Gangauli, Police Station- Dehri Town (Dalmiyan Nagar), District - Rohtas.

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 591 of 2021 Arising Out of PS. Case No.-888 Year-2020 Thana- DEHRI TOWN District- Rohtas ====================================================== Balram Singh @ Baliram Singh @ Munna, S/o Late Shyam Narayan Singh, Resident of Village- Gangauli, P.S.- Dalmianagar (Dehri), District- Rohtas.

... ... Appellant/s Versus The State of Bihar ... ... Respondent/s ====================================================== Appearance :

(In DEATH REFERENCE No. 8 of 2021) For the Petitioner/s : Mr.Xxxxx For the Respondent/s : Mr. Ajay Kumar Thakur, Amicus Curiae Ms. Anukriti Jaipuriar, Amicus Curiae (In CRIMINAL APPEAL (DB) No. 591 of 2021) For the Appellant/s : Mr. Krishna Prasad Singh, Sr. Advocate Mr. Bhaskar Shankar, Advocate For the Respondent/s : Mr. Dr. Mayanand Jha, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH and HONOURABLE MR. JUSTICE HARISH KUMAR ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE HARISH KUMAR)

Date : 09-05-2022 Heard Mr. Krishna Prasad Singh, learned senior counsel

appearing on behalf of the Appellant in Cr. Appeal (DB) No. 591

of 2021, as also Mr. Ajay Kumar Thakur and Ms. Anukriti

Jaipuriar, learned counsel, appointed as Amicus Curiae to assist Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

the Court in Death Reference No. 08 of 2021 and Mr. Dr.

Mayanand Jha, learned APP for the State.

2. The present death reference and the connected Cr.

Appeal arise out of the judgment of conviction and order of

sentence dated 26.07.2021 and 30.07.2021 passed by learned

Additional District & Sessions Judge-VII, Exclusive Special Court

(POCSO), Rohtas at Sasaram in POCSO Case No. 68 of 2020,

arising out of Dalmianagar (Dehri) P.S. Case No. 888 of 2020

whereby and whereunder the appellant has been convicted under

Sections 302, 201, 376-AB of the Indian Penal Code and Sections

5/6 of the POCSO Act, 2012 and sentenced to death to be hanged

by neck till his last breath subject to confirmation of sentence by

the High Court and also awarded fine of Rs.50,000/- under

Section 302 of the Indian Penal Code. In case of default of

payment of fine, the convict-appellant shall serve simple

imprisonment for one year. The convict-appellant is further

sentenced to undergo Rigorous Imprisonment for five years for the

offence under 201 of the Indian Penal Code and fine of

Rs.10,000/- and in default of payment of fine, simple

imprisonment for one year and further awarded sentence to

undergo imprisonment for life for the remainder of natural life

with fine of Rs.50,000/- under Section 6 of the POCSO Act, 2012 Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

and in default of payment of fine, Simple Imprisonment for one

year. The learned trial court has not awarded any separate sentence

for the charges under Section 376-AB of the Indian Penal Code. It

is made clear that all the sentences shall run concurrently.

3. The prosecution case is based upon a written

application filed by the grandmother of the victim to the SHO,

Dalmianagar (Dehri) P.S. stating therein that when the informant

(PW.-3) could not find her minor grand-daughter (X), aged about

10 years, at about 3.00 P.M. on 14.11.2020 (Depawali Festival

Day) in the house, she started searching for her and also enquired

from her co-villagers. At about 6.00 P.M. on the same day she got

to know from co-villagers that her neighbour Balram Singh @

Baliram Singh @ Munna (appellant) was seen enticing her grand

daughter with a calendar of Goddess Laxmi and Lord Ganesh and

took her to his house. When the informant (P.W.-3) went to the

house of Balram Singh @ Baliram Singh, she found the door

locked, then she informed Dalimianagar police station. It is further

alleged that co-villagers searched for appellant-convict Baliram

Singh and caught him from Sahu Mohalla and brought to his

house in the presence of Dalmianagar police. The lock of the

house of appellant Baliram Singh was opened with the key by the

police and the house was searched in front of every body. During Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

the search, the dead body of the victim was found kept in a

wooden box in a semi naked condition. The dead body bore blood

stained injury mark on her neck and on the private part of the

victim. The appellant confessed his guilt of committing rape and

murder of informant's grand daughter before every body.

The further case is that the police arrested the appellant

Baliram Singh and prepared inquest report and took the body of

the victim to Sadar Hospital, Sasaram for post-mortem

examination.

4. On the basis of the aforesaid written application of

the informant (P.W.-3), the First Information Report was drawn up

and Dalmianagar (Dehri) P.S. Case No. 888 of 2020 dated

15.11.2020 has been registered for the offences punishable under

Sections 376-A, 376-B, 302, 201 of the Indian Penal Code and

Section 6 of the POCSO Act, 2012.

5. The seized articles were sent to the Forensic Science

Laboratory, Patna vide Memo No. 888 dated 25.11.2020 and the

report of the FSL under the signature of Assistant Director,

Forensic Science Laboratory, Government of Bihar Patna vide No.

038666 and 038667 dated 29.12.2020 and 04.02.2021 have been

submitted before the learned Additional District & Sessions

Judge-VII, Exclusive Special Court (POCSO), Rohtas at Sasaram. Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

6. On completion of investigation, the police submitted

charge-sheet against the appellant-convict for the offences under

Sections 376-AB, 302, 201 of the Indian Penal Code and Section

6 of the POCSO Act vide charge-sheet no. 585 of 2020 dated

30.11.2020.

7. The F.I.R. named accused (Baliram Singh) was sent

up for trial for the offences under Sections 376- AB, 302, 201 of

the Indian Penal Code and Section 6 of the POCSO Act and on

receipt of the charge-sheet, cognizance was taken by the learned

Additional District & Sessions Judge-VII, Exclusive Special Court

(POCSO), Rohtas at Sasaram vide order dated 08.12.2020 and

copies of the police papers were furnished to the accused-

appellant, which were duly received by him on 14.12.2020. On

05.01.2021, the learned Additional District & Sessions Judge-VII,

Exclusive Special Court (POCSO), Rohtas at Sasaram read over

and explained the charges in Hindi to the accused-appellant under

Sections 376- AB, 302, 201 of the Indian Penal Code and Section

6 of the POCSO Act; however, the accused-appellant did not plead

guilty and claimed to be tried.

8. In order to establish the charges, the prosecution

examined altogether 11 witnesses including the informant (P.W.3),

who are as follows:

Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

P.W.1 Raushan Kumar Gupta, P.W.2 Surendra Prasad

Sinha, P.W.3 Shashikala Srivastava (informant), P.W.4 Pramod

Kumar, P.W.5 Pappu Kumar, P.W.6 Arvind Kumar Srivastava,

P.W.7 Vikash Kumar Srivastava, P.W. 8 Om Prakash Singh, P.W. 9

Dr. Shivendra Kumar Singh (one of the member of the Medical

Board which conducted the post-mortem), P.W.10 Deo Raj Ray

(Investigating officer of the case) and P.W.-11 Jitendra Kumar

(Assistant Director, FSL, Patna).

9. After closer of the prosecution evidence, the

statement of the accused-appellant was recorded under Section

313 of the Cr.P.C. and he denied the allegation of the prosecution

and pleaded his innocence.

10. The learned trial court after hearing the parties and

considering the materials on record held the appellant guilty for

the offences under Sections 302, 201, 376- AB, of the Indian

Penal Code and Sections 5/6 of the POCSO Act and accordingly

the impugned judgment of conviction dated 26.07.2021 and order

of sentence dated 30.07.2021 have been passed.

11. At the outset before addressing this Court on the

merit of the case, learned Amicus Curiae, Mr. Ajay Kumar Thakur

and Ms. Anukriti Jaipuriar submitted that in a criminal justice

system, the primary object is to ensure fair trial of the accused. Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

Every trial begins with the presumption of innocence in favour of

the accused and the provisions of the Criminal Procedure Code are

so framed that a criminal trial should be governed by this essential

presumption. They contended that the manner in which the trial

was conducted, it is clear that there was no fairness in conducting

trial and the interest of the appellant-convict was put to prejudice

on several counts. The order-sheet of the trial court would make it

evident that at the time of framing of charge, the accused-

appellant was produced through video conference and in presence

of the learned Public Prosecutor, the appellant was heard and

charges were framed. At the stage of framing of the charge, the

accused-appellant was not being represented by any counsel. The

learned Amicus Curiae further contended that though the order-

sheet reveals that on 18.12.2020, the accused-appellant had filed

an application for appointment of an advocate on his behalf, no

such appointment could be made and surprisingly charges have

been framed on 05.01.2021 in absence of any counsel representing

the accused-appellant. However, after framing of the charges, the

learned Additional District & Sessions Judge-VII, Exclusive

Special Court (POCSO) vide its order dated 05.01.2021 directed

the office to issue letter to the office of District Legal Services Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

Authority for appointment of a lawyer on behalf of the accused-

appellant.

12. From the record, it transpired that on 18.12.2020 the

accused-appellant was not produced before the court in person.

The Jail authorities produced his custody warrant before the court

on which a direction was issued to produce him through video

conferencing on 23.12.2020 for hearing on the point of charge. It

further transpired that in the light of the request made by the

accused appellant on 05.01.2021 the trial court directed for

writing a letter to the District Legal Services Authority pursuant to

which Shri K. K. Yadav, who was appointed by the District Legal

Services Authority, has first time appeared on 11.01.2021 and filed

his Hazri on behalf of the accused-appellant. From the record/

order-sheet it appears that at no point of time any paper/document

relating to the case has been supplied to him. Further, on

11.01.2021 itself, the P.W. 1 (Raushan Kumar Gupta) was

examined and the learned counsel appearing on behalf of the

accused-appellant entered his appearance and on the same day his

examination-in-chief and cross-examination has been done and

the said witness has been discharged.

13. The order-sheet further reveals that on 12.01.2021

P.W. 2 (Surendra Prasad Sinha) was examined and on the same Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

day he was cross-examined and finally the said witness has been

discharged.

On 15.01.2021 the examination-in-chief of P.W. 3

(informant) was done and on the same day she was cross-

examined and has been discharged.

On 19.01.2021 examination-in-chief of P.W. 4 (Pramod

Kumar) was done by the prosecution and on the same day he was

cross-examined and has been discharged.

On 22.01.2021 P.W. 5 (Pappu Kumar) was examined by

the prosecution and on the same day he was cross-examined and

has been discharged.

On 27.01.2021 examination-in-chief of P.W. 6 (Arvind

Kumar Shrivastava) was done by the prosecution and he was

further cross-examined and discharged.

On 29.01.2021 examination-in-chief of P.W. 7 (Vikash

Kumar Shrivastava) was done by the prosecution and he was

further cross-examined and discharged.

On 03.02.2021 examination-in-chief of P.W. 8 (Om

Prakash Singh) was done by the prosecution and he was further

cross-examined and discharged.

On 06.02.2021 examination-in-chief of P.W. 9 (Dr.

Shivendra Kumar Singh) was done by the prosecution and he was Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

cross-examined partly and his part cross-examination was done on

12.02.2021 and he has been discharged.

On 26.02.2021 examination-in-chief of P.W. 10 (Deo

Raj Ray) was done by the prosecution and he was further cross-

examined and discharged.

On 20.03.2021 examination-in-chief of P.W. 11

(Jitendra Kumar, the Assistant Director, FSL) was done by the

prosecution and he was further cross-examined and discharged.

14. On 26.03.2021, the evidences on behalf of the

prosecution has been closed. From the perusal of the order-sheet

dated 06.04.2021 / 01.06.2021 it appears that the learned Public

Prosecutor filed an application for appointment of another panel

counsel of Legal Services Authority on behalf of the accused-

appellant. Thereafter both the learned Public Prosecutor as well as

the newly appointed counsel were heard and the learned

Additional District & Sessions Judge-VII, Exclusive Special Court

(POCSO), Rohtas at Sasaram and finally passed the judgment of

conviction and order of sentence respectively.

15. Mr. Ajay Kumar Thakur, learned Amicus Curiae

submitted that it was the duty of the trial court to provide proper

opportunity and the relevant papers to the lawyer, who was

engaged on behalf of the accused-appellant, but he has neither Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

been provided sufficient time to have any examination or

interaction with the accused-appellant nor even provided sufficient

time to go through even the basic documents, which had been

provided to the accused-appellant. It is further submitted that

"provisions of Sections 227 and 228 of the Code contemplates

framing of charge upon consideration of the record of the case and

the documents submitted therein with 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 a just routine and fair, the right under the said

provisions stood denied to the appellants. It is vehemently

submitted that the trial court on its own ought to have adjourned

the matter for some time so that the panel lawyer engaged by the

District Legal Services Authority on behalf of the accused-

appellant could have had the advantage of sufficient time to go

through the basic papers, have interaction with the accused-

appellant and prepare the matter, but in the present case even the

charges have been framed in absence of any lawyer representing

the cause of the accused-appellant and without providing any

sufficient time and opportunity to the newly engaged counsel, the

examination of prosecution witnesses started and, as such, the Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

accused-appellant has not been given proper opportunity to defend

his case.

16. On the other hand Dr. Mayanand Jha, learned

Additional Public Prosecutor appearing on behalf of the State

contended that the right of the accused to appear in person before

the Court has not been infringed in the present case. He was all

along present before the learned Special Court throughout the

trial. It is next submitted that the accused-appellant never made

any objection nor raised any grievance at any point of time and as

such at this belated stage the accused-appellant cannot be allowed

to raise such submissions inasmuch as no prejudice has been

caused to him.

17. In response of the aforesaid submissions made on

behalf of the learned APP, learned Amicus Curiae submitted that

there is nothing on the record to show that after appointment of a

counsel for the appellant Shri K. K. Yadav was given sufficient

time to prepare defence. The order-sheet seems to indicate that as

soon as the counsel was appointed, examination of witnesses

begun. The counsel, tried his best to cross-examine the witnesses

to the extent it was possible for him to do in a very short time

available to him. It is true that the record does not contain any

note that the counsel appearing on behalf of accused-appellant Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

asked for more time to prepare the defence, but it is immaterial.

The rule casts a duty on the court itself to grant sufficient time to

the counsel for this purpose and the record should show that the

rule was complied with by granting him time, which the court

considered sufficient in the particular circumstances of the case.

18. Having heard the submissions made on behalf of the

learned Amicus Curiae as well as learned APP for the State, as

also after going through the materials available on record

including the order-sheet of the trial court, it is evident that on

19.12.2020, the learned Additional District & Sessions Judge-VII,

Exclusive Special Court (POCSO), Rohtas at Sasaram has

received application on behalf of the accused-appellant which was

sent to him by the Superintendent, Divisional Jail, Sasaram

through Memo No. 4350 dated 18.12.2020 for appointment of an

advocate on his behalf through the District Legal Services

Authority, but instead of taking any action or passing any order on

the said application, the matter has been placed for framing of the

charges on 05.01.2021 and the charges were framed and next date

has been fixed on 11.01.2021 for prosecution evidence. Later on,

on the said date i.e. 05.01.2021 itself the learned Additional

District & Sessions Judge-VII, Exclusive Special Court (POCSO)

directed the office to issue letter for appointment of a panel Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

advocate of District Legal Service Authority on behalf of the

accused-appellant. The newly appointed advocate first time

appeared and filed his Hazri on behalf of the accused-appellant on

11.01.2021 and on the same day i.e. on 11.01.2021 the

examination-in-chief of P.W.1 has been made and he was cross-

examined by him and discharged. This similar feature has been

done almost in all the dates on which the prosecution witnesses

were examined.

19. Having gone through the order-sheet, this Court

does not find any order, which reflects that at any point of time,

the learned lawyer engaged on behalf of the accused-appellant has

been provided any basic documents or sufficient time to had the

advantage of any discussion or interaction with the accused-

appellant. Mr. Ajay Kumar Thakur, learned Amicus Curiae, in

support of his submission, has also relied upon three Judges

Bench judgment of the Hon'ble Supreme Court rendered in the

case of Anokhilal Vs. State of Madhya Pradesh, reported in

AIR 2020 SC 232. In the case of Anokhilal (supra), a three Judges

Bench of the Hon'ble Supreme Court overturned a conviction and

death sentence ordered by the learned Trial Court for the reason

that accused's right to legal aid was violated. In that case a lawyer

was appointed by the Legal Services Authority on behalf of the Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

accused a day before hearing of the charges. On the date of

hearing, the lawyer was not present, thereupon a new lawyer was

appointed by the Legal Services Authority. However, on the same

day charges were framed under Sections 302, 363, 366, 376(2)(f)

and 377 of the Indian Penal Code and Sections 4, 5 and 6 of the

Protection of Children from Sexual Offences Act, 2012. The

Hon'ble Supreme Court having taken note of various judgments,

confined the issue whether while granting free legal aid, the

appellant was extended real and meaningful assistance or not; and

laid down certain norms so that the infirmities, noticed in the said

matter are not repeated.

20. In the case of Anokhilal (supra) after taking note of the

earlier judgments on the point in issue, the Hon'ble Supreme Court

while remanding the case back to the Trial Court for fresh consideration

restated some principles on the right to free legal aid, in para-22, which

reads as under:-

"Before we part, we must lay down certain norms so that the infirmities that we have noticed in the present matter are not repeated:

(i) 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.

Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

(ii) 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.

(iii) Whenever any leaned 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.

(iv) Any leaned counsel, who is appointed as Amicus Curiae on behalf of the accused must normally be granted to have meetings and discussion with the conceded accused. Such interactions may prove to be helpful."

21. This Court also find apt and appropriate to quote

some of the observations made in the case of Zahira Habibulla

H. SheikhaAnd Anr vs State of Gujarat and Ors., reported in

AIR 2004 SC 3114.

"38. A criminal trial is a judicial examination of the issues in the case and its purpose is to arrive at a judgment on an issue as a fact or relevant facts which may lead to the discovery of the fact issue and obtain proof of such facts at which the prosecution and the accused have arrived by their pleadings; the controlling question being the guilt or innocence of the accused. Since the object is to mete out justice and to convict the guilty and protect the innocent, the trial Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

should be a search for the truth and not a bout over technicalities, and must be conducted under such rules as will protect the innocent, and punish the guilty. The proof of charge which has to be beyond reasonable doubt must depend upon judicial evaluation of the totality of the evidence, oral and circumstantial, and not by an isolated scrutiny.

39. Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored and partisan trial.

40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice."

22. Recently, the Division Bench of this Court in the

case of Shambhu Nath Singh @ Shambhu Singh & Ors. Vs.

State of Bihar, reported in 2022 (1) PLJR 476, the judgment of

which has been authored by one of us (learned brother Justice

Ashwani Kumar Singh) held that a trial primarily aimed at

ascertaining truth has to be fair to all concerned, which includes Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

the accused, the victims and society at large. Each person has a

right to be dealt with fairly in a criminal trial. The denial of a fair

trial amounts to injustice not only to the accused but also to the

victim and the society. An accused has a right to fair trial under

our Constitution as also the international treaties and conventions,

the right to get fair trial is considered as a basic human right. The

denial of fair trial is like crucifixion of human rights.

23. The Division Bench has been pleased to observe that

the right of fair trial in the spirit of right to life and personal

liberty is paramount right enshrined under Article 21 of the

Constitution and at no point of time the pursuit of expeditious

disposal of the trial, the trial court can sacrifice the basic tenet of

the criminal jurisprudence i.e. "the cause of justice". Para. 23 to

26 of the judgment rendered by the Division Bench in the case of

Shambhunath Singh (supra) are quoted herein below for proper

appreciation of the issues involved in the present matter:

"23. In Zahira Habibullah Sheikh and Another v. State of Gujarat and Others since reported in [(2006) 3 SCC 374], the Hon'ble Supreme Court of India observed:

"Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to the victim and to society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere judicial calm. A fair trial means a trial in Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

which bias or prejudice for or against the accused, the witness or the cause which is being tried, is eliminated."

24. Thus, the basic principle of the right to a fair trial is that the proceeding in any criminal case are to be conducted by a competent, independent and impartial court. In a criminal trial, as the State is the prosecuting party and the police are also an agency of the State, it is all the more important that the judiciary is free from all suspicion of extraneous influence and control direct or indirect. The whole burden of fair and impartial trial, thus, rests on the shoulders of the judiciary.

25. In a criminal trial, the burden of proving the guilt of the accused is upon the prosecution, as the trial begins with the presumption of innocence in favour of the accused. The requirement of fair trial is that the accused person is given adequate opportunity to defend himself. But, this opportunity will have no meaning if the accused person is not provided with the legal assistance during trial, if he is unable to engage a lawyer of his own choice. It is the duty of the State to provide a counsel to the accused in certain cases and a fundamental right of the accused to have free legal assistance at the cost of the State, if he is unable to engage a lawyer to defend his case. The failure to provide such assistance vitiates trial. The Court cannot turn a blind eye to the fact that the accused is not being defended by any counsel and proceed with the trial without ensuring the right of the accused to be defended by a lawyer.

26. In Khatri and Others (IV) v. State of Bihar and Others since reported in [(1981) 2 SCC 493], the Hon'ble Supreme Court held that the accused is entitled to free legal service not only at the stage of trial but also when Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

first produced before the Magistrate and also when remanded."

24. In the aforesaid facts and circumstances and after

going through the principles laid down by the Hon'ble Supreme

Court in the case of Anokhilal (supra) as well as Shambhu Nath

Singh (supra) we are in conformity with the submissions made by

Mr. Ajay Kumar Thakur being ably assisted by Ms Anukriti

Jaipuriyar appearing as Amicus Curiae in the present death

reference case, we are, therefore, of a considered view in setting

aside the judgment of conviction dated 26.07.2021 and order of

sentence dated 30.07.2021 passed by Additional District &

Sessions Judge-VII, Exclusive Special Court (POCSO), Rohtas at

Sasaram in connection with POCSO Case No. 68 of 2020, arising

out of Dalmianagar (Dehri) P.S. Case No. 888 of 2020 against the

sole appellant and direct for a De-novo trial of the accused-

appellant from the stage of framing of charge. The impugned

judgment of conviction and order of sentence are set aside. The

matter is remanded to the learned trial court with a specific

direction that the learned Exclusive Special Court would provide

the appellant a legal aid counsel in terms of the order passed by

the Hon'ble Supreme Court in the case of Anokhilal (supra), if

the appellant is unable to engage an advocate of his choice. The Patna High Court D. REF. No.8 of 2021 dt.09-05-2022

learned trial court shall ensure that such legal aid counsel is

provided to the appellant before framing of the charge till its

conclusion.

25. Accordingly, the present death reference stands

rejected and as such not confirmed. The Cr. Appeal is hereby

allowed to the extent indicated hereinabove.

26. Since we are remanding the matter for fresh

disposal, we clarify that we have not expressed any opinion

regarding the merits of the case.

27. We record our deep sense of appreciation for the

able assistance extended by Mr. Ajay Kumar Thakur, learned

Amicus Curiae being ably assisted by Ms Anukriti Jaipuriyar,

learned Amicus Curiae, the Patna High Court Legal Services

Committee is hereby directed to pay Rupees Seven Thousand Five

Hundred to Ms. Anukriti Jaipuriyar, learned Amucus Curiae as

consolidated fee for the assistance made by her in the present

appeal.

(Ashwani Kumar Singh, J)

( Harish Kumar, J) uday/-

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Uploading Date          12.05.2022
Transmission Date       12.05.2022