Hearing On Sentence In Death Penalty Cases Must Be Adjourned For Granting Time To Accused To Show Mitigating Factors: Jharkhand High Court

The High Court annulled the death sentence imposed by the POCSO Court and ordered a fresh trial to be conducted by a different judge of competent jurisdiction.

The division bench of Justices Shree Chandrashekhar and Anubha Rawat Choudhary opined,

“Now the time has come that Miranda [Miranda v. Arizona : 384 US 436] which is applied in narcotics and psychopathic laws and preventive detention laws is made a part of the duty of the Court hearing on sentence. In our opinion, in every case where the statute provides death penalty the Court must adjourn “further” hearing on sentence after clearly informing the accused that he has a right to produce material(s) on mitigating circumstance(s). This only can be the manner in which the provisions under sub-section (2) to section 235 of hearing the prisoner on the question of sentence can effectively be achieved.”

“In all other cases, where the convict does not intend to lead any evidence and is satisfied with an opportunity for an oral hearing the trial Judge shall pass a sentence on him according to law. However, the trial Judge should make an endorsement and record in the proceedings of the Court as well as in the order of sentence that the convict was informed about his right and offered an opportunity to lead further evidence, oral as well as documentary,” the bench added.

The bench was hearing a Death Reference for confirmation of a sentence of death awarded to Mithu Rai, Ashok Rai and Pankaj Mohali.

The above named prisoners had preferred a Criminal Appeal (DB) to challenge the judgment of conviction recorded against them under sections 366/34, 376-DB/34, 376-A/34, 302/34 and 201/34 of the Indian Penal Code and section 6 of the Protection of Children from Sexual Offences Act, 2012 and the order of sentence passed thereon, separately on each count except under section 376-A/34 of the Indian Penal Code.

The trio was accused of kidnapping informant's 6-year-old daughter, committing rape upon her and leaving her dead at informant's doorstep. Upon receiving DNA reports, the Investigating Officer filed a chargesheet and the trial Judge, after considering the evidence, convicted the accused on six counts, including abduction, sexual assault, murder, and concealing evidence.

On March 3, 2020, the trial Judge pronounced a 72-page judgment of conviction, within 7 working days since taking cognizance of the offence, followed by a hearing on the point of sentence at 3:00 PM the same day and recording a 10-page order of sentence.

Pursuant to this the Death Reference was instituted and after admission, the State of Jharkhand was directed to obtain a report of the Probation Officer and the Psychiatrist and Physiological Evaluation Report of the convicts from a trained Psychiatrist or a Professor of Physiology and such reports were placed on record.

On June 16, 2023, the Juvenile Justice Board in Dumka was instructed by a court order to conduct an inquiry according to section 9(2) of the 2015 Act. Subsequently, on July 10, 2023, the Principal Magistrate of the J.J. Board in Dumka made a ruling stating that Ashok Rai and Pankaj Mohali were juveniles at the time of the incident.

The Court emphasized that a comprehensive analysis of sections 15, 18, and 21 of the Juvenile Justice Act, 2015 clarifies that a child above the age of 16 years, accused of a heinous offense, can be sentenced to life imprisonment if found to possess the mental and physical capacity to understand and commit the crime. However, the Court highlighted that the trial judge had hastily conducted the proceedings.

The Court pointed out that prosecution's witnesses, including close associates of the victim, were examined, cross-examined, and discharged within a single day, raising questions about the judge's adherence to their statutory duties. Furthermore, the prosecution's application to present additional evidence under section 311 of the Code of Criminal Procedure was swiftly approved without any objection from the defense.

The Court further pointed out that these additional witnesses testified on the same day, and crucial documents such as the inquest report, videography certificate, arrest memo, seizure list, transit remand, postmortem report, and DNA reports were submitted through their testimonies. Subsequently, six more prosecution witnesses were examined through another petition under section 311 CrPC, after which the prosecution concluded its evidence presentation, and on the same day, the accused was questioned under section 313 CrPC, and the case was adjourned for arguments.

In light of the seriousness of the offense and the severity of the potential punishment, the Court expressed strong reservations about the trial judge's conduct, as it appeared to be unjust and failed to provide adequate time for the legal aid lawyer to prepare a robust defense.

The Court elaborated on Section 309 CrPC, which mandates that proceedings in every inquiry or trial should be conducted continuously until all witnesses present have been examined, and the trial Court can extend the proceedings beyond specified dates if necessary, provided it records the reasons for the extension.

The Court observed that the accused were unable to afford legal representation and, consequently, were assigned a legal aid lawyer. However, this arrangement seemed more like a formality, as the legal aid counsel was given no time to prepare the case. The Court stated,

“A heavy duty is cast on the criminal Courts to ensure that no one is deprived of life and liberty without a fair and reasonable opportunity to prove his innocence. There are three accused and, as the prosecution case goes, they might set up separate defenses in the trial. The trial Judge was so oblivious of his statutory duty that in his zeal to record a judgment of conviction and to award the death penalty he did not even bother to turn to the Act of 2015 inasmuch as the investigating officer admitted in the cross examination that Ashok Rai stated before him that he is a matriculate but he did not take his Matriculation certificate.”

The Court opined that the appointment of a legal aid lawyer by the trial Judge was a pretension of compliance with the rules of natural justice and section 304 CrPC.

“We are not required to engage in a second guess on how much time should have been provided to the legal aid lawyer to prepare for the defense – the trial commenced the next day of his appointment. The tearing hurry with which the trial Judge conducted the trial leaves one exasperated and no amount of explanation can justify his actions. With shattered hope, the accused were mute spectators of the spectacle of a fast and furious trial. Indeed, in a case where an accused is deprived of his life without complying with the procedure prescribed by law the Court is not even required to turn to whether any prejudice was caused to the accused,” the Court added.

Upon reviewing the testimonies of the prosecution witnesses, the Court found it evident that the legal aid lawyer was inadequately prepared for the trial, lacking sufficient time to review the case records. During cross-examination, the prosecution witnesses were asked only a few questions before being dismissed. The Court also noted that the witnesses who provided crucial evidence, such as DNA and postmortem reports, were hurriedly presented and examined. Importantly, there was no inquiry into the sealing or potential tampering of the samples, or the techniques used in DNA profiling.

The Court observed that there was an implicit challenge to the fairness of the trial proceedings, suggesting that due process of law was not followed and the procedures employed by the trial Judge lacked fairness and transparency.

The Court emphasized, “The undue haste of the trial Judge reminds the Court the maxim “qui aliquid statuerit parte inaudita altera aequum licet dixerit haud aequum” which means “he who determines any matter without hearing both the sides, though he may have decided rightly, has not done justice”. A fair trial is a human right and the fairness of trial is implicit in Article 21 of the Constitution.”

“This is the duty of the trial Judge to provide equal opportunity to the prosecution and the defense to present the case without any hindrance. This is also a duty of the trial Judge to maintain judicial balance and observe intellectual discipline and bear in mind that his judgment should be in consonance with the law and not cause ripples in an otherwise tranquil judicial system,” the Court added.

The Court highlighted that the District and Additional Sessions Judge-I at Dumka issued a 72-page judgment convicting the accused. Upon reviewing the records, doubts arose in the Court's mind regarding the authenticity of the judgment. The Court questioned whether the trial Judge had prepared the judgment in advance, given the extensive length of the document. To assess the time required to draft an 82-page judgment on legal-size paper with a medium font, the Court conducted Google searches, and estimated that it would take approximately one hour to dictate a 10-page order and an additional one and a half hours to type it.

Referring to illustration (e) of section 114 of the Indian Evidence Act, which presumes the regularity of judicial and official acts, the Court acknowledged the dedication of judicial officers. However, the Court refrained from making unfounded speculations and chose not to comment further on the matter, concluding the discussion. The Court firmly asserted that trial in this case was a "mockery" of fair trial and justice. It deemed the trial improper, unfair, and illegal, undermining the otherwise robust criminal justice system in India.

The Court observed that the sentencing hearing began at 03:30 PM on March 3, 2020, and the death sentence was pronounced on the same day. The Court highlighted the statutory obligation imposed on the Criminal Court by section 235(2) CrPC. According to this provision, the Court must give the accused an opportunity to be heard regarding the sentence after delivering a judgment of conviction. This rule applies in cases where the offense committed by the accused is punishable under a law to which CrPC is applicable, and the Court convicting the accused does not proceed under section 360 CrPC.

The Court emphasized the need for the trial Judge or the High Court to exercise great care, a high level of concern, and sensitivity when deciding the appropriate sentence. The decision becomes particularly burdensome in cases where the offense is punishable by death, as the options are limited to either the death penalty or life imprisonment.

The Court emphatically emphasized that it cannot disregard the prevalence of widespread illiteracy among individuals accused of serious crimes. This, according to the Court, underscores the need for a careful and meaningful interpretation and adherence to section 235(2).

The Court asserted that section 235(2) in the Code serves as a safeguard against arbitrary imposition of the death penalty, and strict adherence to this sub-section ensures protection against arbitrary sentencing and enhances the credibility of court proceedings related to sentencing.

Furthermore, the Court emphasized that non-compliance with the provision is not a minor irregularity; rather, it should be deemed incurable. There should be no leniency in favor of the prosecution, and the convict's right to a fair hearing on the question of sentencing must be strictly observed and followed.

“Therefore, if without hearing the accused a composite judgment of conviction and order of sentence is passed that shall infringe the provisions under sub-section (2) to section 235 and, consequently, the sentence awarded to the accused must necessarily be set aside. Thereafter, the High Court in exercise of the powers under section 386 of the Code of Criminal Procedure can remand the matter to the trial Judge for hearing on the question of sentence or may decide to hear the accused on the question of sentence and pass an appropriate order of sentence,” the Court said.

Looking at the illegalities committed during the trial of POCSO Act Case, the Court held that the trial was vitiated and, accordingly, the judgment of conviction and order of sentence both dated 3rd March 2020 were set aside.

In the result, the Court declined the reference under section 366 CrPC and dismissed the Death Reference. Furthermore, the Court allowed the Criminal Appeal (DB) and restored the POCSO Act Case to its original records.

Counsel/s For the Appellant-State : Mr. Pankaj Kumar, Public Prosecutor [in Death Reference No.02 of 2020]

Counsel/s For Accused No.1 : Mr. Kumar Vaibhav, Amicus [in both cases]

Counsel/s For Accused Nos.2 & 3 : Mr. Rajeeva Sharma, Sr. Advocate Mr. Ritesh Kumar, Advocate [in both cases]

LL Citation: 2023 LiveLaw (Jha) 75

Case Title: State through informant Sadhu Rai vs Mithu Rai and Others

Case No.: Death Reference No. 02 of 2020

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