CRL.A./1146/2012 of SANJAY KUMAR VALMIKI Vs STATE

IN THE HIGH COURT OF DELHI AT NEW DELHIDEATH SENTENCE REF. No. 3 of 2012

Reserved on: February 6, 2014Decision on: February 21, 2014

STATE

..... Appellant

Through: Ms. Richa Kapoor, APP.Inspector Bijender Singh, PS: Maurya Enclave.

versus

SANJAY KUMAR VALMIKI..... Respondent

Through: Mr. Bhupesh Narula, Advocate.AND

CRIMINAL APPEAL No. 1146 of 2012 andCRL.MB. No. 1772 of 2012 Crl. M.A No. 561 of 2013

SANJAY KUMAR VALMIKIThrough: Mr. Bhupesh Narula, Advocate.versusSTATE

..... Appellant

..... RespondentThrough: Ms. Richa Kapoor, APP.Inspector Bijender Singh, PS: Maurya Enclave.

CORAM:

HON’BLE DR. JUSTICE S. MURALIDHARHON’BLE MS. JUSTICE MUKTA GUPTA

JUDGMENT

21.02.2014

DSR No. 3 of 2012 & CRL. A. No. 1146 of 2012

Dr. S. Muralidhar, J:

1. By judgment dated 11[th]May 2012 in Session Case No. 166 of 2011, theAdditional Sessions Judge-II (North-West), Rohini Courts, Delhi convictedSanjay Kumar Valmiki of the offences under Sections 302, 363, 376 (2)(f),376 and 201 IPC for kidnapping the prosecutrix/deceased ‘U’, aged abouteight years, from the lawful guardianship of her parents with an intention torape her; committed rape on her and thereafter hammered her to death with asteel rod; and then caused the disappearance of evidence of the commissionof the offence by washing his clothes and the weapon of offence andconcealing the body of the deceased. By an order on sentence dated 31[st]May2012, the learned Additional Sessions Judge (‘ASJ’) sentenced Sanjay KumarValmiki to death for the offence punishable under Section 302 IPC andimposed fine of Rs.1 lakh, and in default of the payment of the fine directedhim to undergo simple imprisonment (‘SI’) for period of three months andfurther directed the fine amount to be given to the family of the deceased ascompensation under Section 357 of Code of Criminal Procedure (‘CrPC’).The accused was further sentenced to undergo Rigorous Imprisonment (‘RI’)for five years and fine of Rs.5,000 for the offence punishable under Section363 IPC and in default of the payment of the fine, to undergo SI for periodof one month. He was sentenced to RI for life i.e. the rest of his life and afine of Rs.10,000 for offences punishable under Sections 376(2) (f) IPC andin default of the payment of the fine, to undergo SI for two months with theclarification that he shall not be considered for grant of remission. Finally,he was sentenced to RI for three years and fine of Rs.1,000 for the offencepunishable under Section 201 IPC and in default of the payment of the fine,to undergo SI for period of 15 days.

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2. Death Sentence Reference No. 3 of 2012 has been preferred by the Stateseeking confirmation of the death sentence awarded to the accused.Independently, the accused has filed Criminal Appeal No. 1146 of 2012.

3. The case of the prosecution is that on 11[th]July 2012, the deceasedprosecutrix, female child ‘U’, aged about 8 years, was left along with heryounger siblings in the park at KU Block behind the North Delhi PowerLimited (‘NDPL’) office, Pitampura by her mother Sunita (PW-21) who usedto do domestic work. When PW-21 returned at around 4 pm and did not find‘U’, she informed her husband Shyam Paswan (PW-15) who then lodged amissing report with the Police Station (P.S.) at Maurya Enclave.

4. On 13[th]July 2011 at around 6.15 pm, information was received at the P.S.through the police control room (PCR) that the dead body of the prosecutrixwas lying in the electric panel room (also called the switch gear room) at theNDPL office, KU Block, Pitampura. ASI Raju Yadav (PW-30) and theStation House Officer (‘SHO’) located the dead body which was found headdown in one corner near the switch gear room with her panty pulled down toher thighs. The body was in highly decomposed condition. PW-15 was thencalled up to identify the dead body. The crime team led by SI Devender (PW-7) reached the spot and photographs of the crime scene were taken byConstable Dalbir (PW-2).

5. child witness, Master Saroj (PW-25), aged about 10-11 years, informedhis uncle Dalip Paswan (PW-14) on 14[th]July 2011, and then the police on thesame date between 8.45 and 9 am, that he saw the accused with the deceased

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at the site of the crime around the time when the deceased went missing. Hefurther stated that he had heard screams and cries of child coming frominside the switch gear room and when he peeped inside the room he saw theaccused who asked him to run away.

6. The accused was arrested at approximately 7.35 pm on 14[th]July 2011. Heis stated to have been working as sweeper with the NDPL. The accused isstated to have made confessional statement during the interrogationdisclosing the location where he had hidden the clothes he was wearing whilecommitting the offence and the weapon used to inflict the fatal injuries on thechild. His medical examination was conducted at 11.45 pm.

7. The police team that conducted the search, seizure and arrest comprised ofConstable Sohanbir (PW-29), Inspector Satyender Gosain, the InvestigatingOfficer (‘IO’) (PW-31) and ASI Raju Yadav (PW-30). The Security GuardKuldeep Singh (PW-27) joined the investigation at around 9 pm when theaccused led the police team to the switch gear room to show how he hadcommitted the crime. The exhibits were handed over to HC Anand Swaroop(PW-5) who in turn handed them over to the IO. The Senior ScientificOfficer of the Forensic Science Laboratory (‘FSL’) Ms. Manisha Upadhyaya(PW-18) received from Constable Bijender (PW-9) four sealed parcelscontaining the victim’s clothes and the underwear of the accused. Shediscovered the semen stains of the accused on his underwear and blood stainsof the victim. The Forensic Expert (DNA Fingerprints) Ms. Shashi Bala(PW-19) received eight sealed parcels from Constable Sandeep Kumar (PW-8) which included the cotton wool swab taken from the victim and she found

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that the seminal stains therein were those of the accused. Draftsman SIMahesh Kumar (PW-1) prepared site plan on 3[rd]September 2011 at thebehest of the IO (PW-31).

8. On 11[th]January 2012 the arguments on charge were heard without thecounsel for the accused being present. On that date, an order framing chargeswas passed. The learned ASJ directed that Head Constable Radhey Kishan,MHCM (PW-12), PWs-14 to 22 and PW-26 would be examined by way ofaffidavits under Section 296 Cr PC. Their affidavits were directed to be filedby 29[th]February 2012 with an advance copy to the defence counsel. The casewas listed on 7[th]March 2012 for recording the evidence of the prosecution,i.e.PWs-1, 3, 4, 23, 24 and 25. The order sheet dated 11[th]January 2011reveals that later on the learned ASJ warned the defence counsel, when heappeared, to be regular for the sake of his client.

9. On 7[th]March 2012, none was present for the accused. The accused presentin Court expressed his inability to afford counsel. Thereupon, an Advocatewas instantly appointed by the learned ASJ as amicus curiae for the accused.However, instead of postponing the trial, the learned ASJ proceeded with therecording of the evidence of the prosecution witnesses.

10. 7[th]March 2012 was also the date on which the FSL report was madeavailable to the trial Court. The learned ASJ recorded that the said report wasnot disputed by the accused. The FSL report is scientific document and if itwas received on that very day, it was obviously required to be gone throughby the defence counsel. The accused could hardly be expected to study it

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himself and form an opinion. The amicus curiae appointed for him on thatvery day obviously would not have been aware of the entire facts of the casemuch less would he have been able to get familiar with the record of the case.The question of his forming an opinion as regards the FSL report on that veryday obviously did not arise. The learned ASJ was oblivious to the abovedifficulties and proceeded to call the FSL witnesses on the next date ofhearing.

11. Another significant feature of the proceedings on 7[th]March 2012 was thatthe learned ASJ proceeded with the recording of the evidence of as many as17 prosecution witnesses. These included key witness Dalip Paswan (PW-14) (the uncle of the child witness PW-25 who purportedly corroborated thelatter’s testimony). The complete list of witnesses examined on 7[th]March2012, as presented by the learned APP in tabular form, reads thus:

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DSR No. 3 of 2012 & CRL. A. No. 1146 of 2012

12. It is seen from the above table that the following witnesses were notcross-examined by the amicus curiae on that day: Constable Satish (PW-3)who had joined the investigation; Constable Sandeep (PW-8) police witnesswho had joined the investigation; Woman Constable Archana (PW-10), thePCR official who had filled up the PCR form; Head Constable HoshiyarSingh (PW-11) the Duty Officer/DD writer; Mahesh Paswan (PW-13), arelative of the deceased who identified her body and Dr. Florence Almeida(PW-17) from BSA Hospital who had examined the accused and had givenhis opinion. Also, although the other witnesses in the above list are shown to

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have been cross-examined, careful perusal of the transcript of evidencerecorded shows that their cross-examination was, at best, cursory.

13. The Court notes with some degree of concern that on single day theevidence of as many as 17 prosecution witnesses was sought to be recordedby the learned ASJ without ensuring that the amicus curiae appointed by theCourt on that very day had sufficient time to prepare the case and to conducta proper cross-examination of the said witnesses. What is surprising is that inthe entire impugned judgment, the learned ASJ does not refer to the fact ofthe defence counsel not being present in the Court on 7[th]March 2012 and thelearned ASJ, therefore, having to appoint an amicus curiae who incidentallywas lawyer enrolled only six years earlier. The learned ASJ does not appearto have even paused to reflect on whether it was humanly possible for anyadvocate to instantly get acquainted with case involving grave and seriouscharge of rape and murder on single day and to acquaint himself with theentire record of the case so as to be even able to ask relevant questions to theprosecution witnesses by way of cross-examination.14. The unusual haste with which the learned ASJ proceeded is all the moresurprising since the law on the subject is well settled. similar approachadopted by Fast Track Court (FTC) in the Best Bakery Case was frownedupon by the Supreme Court in Zahira Habibullah Sheikh v. State of Gujarat(2004 Crl LJ 2855. There, the FTC failed to halt the trial despite theprosecution witnesses, including the eye witness Zahira Sheikh, turninghostile in quick succession leading to total collapse of the trial and theacquittal of all the accused. The Supreme Court had no hesitation in declaring

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mistrial and directing re-trial to take place before an appropriate court inMaharashtra. The Supreme Court observed:

“35. .....The concept of fair trial entails familiar triangulation ofinterests of the accused, the victim and the society and it is thecommunity that acts through the State and prosecuting agencies.Interests of society are not to be treated completely with disdain and aspersona non grata. Courts have always been considered to have anoverriding duty to maintain public confidence in the administration ofjustice — often referred to as the duty to vindicate and uphold the“majesty of the law”. Due administration of justice has always beenviewed as continuous process, not confined to determination of theparticular case, protecting its ability to function as court of law in thefuture as in the case before it. If criminal court is to be an effectiveinstrument in dispensing justice, the Presiding Judge must cease to be aspectator and mere recording machine by becoming participant inthe trial evincing intelligence, active interest and elicit all relevantmaterials necessary for reaching the correct conclusion, to find out thetruth, and administer justice with fairness and impartiality both to theparties and to the community it serves. Courts administering criminaljustice cannot turn blind eye to vexatious or oppressive conduct thathas occurred in relation to proceedings, even if fair trial is stillpossible, except at the risk of undermining the fair name and standingof the judges as impartial and independent adjudicators.interests of the accused, the victim and the society and it is thecommunity that acts through the State and prosecuting agencies.Interests of society are not to be treated completely with disdain and aspersona non grata. Courts have always been considered to have anoverriding duty to maintain public confidence in the administration ofjustice — often referred to as the duty to vindicate and uphold the“majesty of the law”. Due administration of justice has always beenviewed as continuous process, not confined to determination of theparticular case, protecting its ability to function as court of law in thefuture as in the case before it. If criminal court is to be an effectiveinstrument in dispensing justice, the Presiding Judge must cease to be aspectator and mere recording machine by becoming participant inthe trial evincing intelligence, active interest and elicit all relevantmaterials necessary for reaching the correct conclusion, to find out thetruth, and administer justice with fairness and impartiality both to theparties and to the community it serves. Courts administering criminaljustice cannot turn blind eye to vexatious or oppressive conduct thathas occurred in relation to proceedings, even if fair trial is stillpossible, except at the risk of undermining the fair name and standingof the judges as impartial and independent adjudicators.36. The principles of rule of law and due process are closely linkedwith human rights protection. Such rights can be protected effectivelywhen citizen has recourse to the courts of law. It has to beunmistakably understood that trial which is primarily aimed atascertaining the truth has to be fair to all concerned. There can be noanalytical, all-comprehensive or exhaustive definition of the concept ofa fair trial, and it may have to be determined in seemingly infinitevariety of actual situations with the ultimate object in mind viz.whether something that was done or said either before or at the trialdeprived the quality of fairness to degree where miscarriage of

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justice has resulted. It will not be correct to say that it is only theaccused who must be fairly dealt with. That would be turning aNelson's eye to the needs of the society at large and the victims or theirfamily members and relatives. Each one has an inbuilt right to be dealtwith fairly in criminal trial. Denial of fair trial is as much injusticeto the accused as is to the victim and the society. Fair trial obviouslywould mean trial before an impartial judge, fair prosecutor andatmosphere of judicial calm. Fair trial means trial in which bias orprejudice for or against the accused, the witnesses, or the cause whichis being tried is eliminated. If the witnesses get threatened or are forcedto give false evidence that also would not result in fair trial. Thefailure to hear material witnesses is certainly denial of fair trial.”

15.1 Recently in Mohd. Hussain v. State (Govt. of NCT of Delhi) (2012) 2SCC 584 (hereafter ‘Mohd. Hussain-I’), the Supreme Court was faced with asimilar situation in case that arose from judgment delivered by SessionsCourt in Delhi. Again it was serious case involving bomb blast on blueline bus causing the death of 4 persons and injuries to 24 others. In that casethe Supreme Court on going through the record of the proceedings and theorder passed by the Sessions Court found that the accused was initiallyassisted by counsel appointed by the learned Sessions Judge. However,midway through the case the said counsel “disappeared from the scene i.e.before the conclusion of the trial”. The accused was not asked whether hewould be able to engage counsel or wished to have counsel appointed forhim. In that case out of the 65 witnesses examined by the prosecution theevidence of 56 of them was recorded without providing counsel to theaccused. None of the said 56 witnesses were examined by the accused either.Only thereafter, was another counsel appointed to defend the accused and the

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evidence of witnesses 57 to 65 were recorded in the presence of the newlyappointed counsel, who for some reason thought it fit not to cross-examineany of those witnesses.

15.2 The two learned Judges who comprised the Bench in Mohd. Hussain-Iagreed that there had been grave miscarriage of justice as result of theaccused not having the services of counsel throughout the trial. However,the two learned judges differed on what the consequential order should be.Justice H.L. Dattu noted that the right of access to justice was fundamentalright as explained in several earlier decisions of the Supreme Court includingM. H. Hoskot v. State of Maharashtra (1978) 3 SCC 544, Mohd. Sukur Aliv. State of Assam (2011) 4 SCC 729 and Hussainara Khatoon v. State ofBihar (1980) 1 SCC 98. Justice Dattu concluded that the “accused was notprovided the assistance of counsel in substantial and meaningful sense”and that to hold otherwise “would be simply to ignore actualities and alsowould be to ignore the fundamental postulates, already adverted to.”

15.3 Concurring with the above view, Justice C.K. Prasad in Mohd.Hussain–I observed:

“51. In my opinion, the right of person charged with crimeto have the services of lawyer is fundamental and essentialto fair trial. The right to be defended by legal practitioner,flowing from Article 22(1) of the Constitution has furtherbeen fortified by the introduction of the Directive Principlesof State Policy embodied in Article 39A of the Constitutionby the 42nd Amendment Act of 1976 and enactment of Sub-Section (1) of Section 304 of the Code of CriminalProcedure. Legal assistance to poor person facing trialwhose life and personal liberty is in jeopardy is mandated not

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only by the Constitution and the Code of Criminal Procedurebut also by International Covenants and Human RightsDeclarations. If an accused too poor to afford lawyer is togo through the trial without legal assistance, such trialcannot be regarded as reasonable, fair and just. The right tobe heard in criminal trial would be inconsequential and of noavail if within itself it does not include right to be heardthrough Counsel.

52. One cannot lose sight of the fact that even intelligent andeducated men, not trained in law, have more than often noskill in the science of law if charged with crime. Such anaccused not only lacks both the skill and knowledgeadequately to prepare his defence but many time loses hisequilibrium in face of the charge. guiding hand of Counselat every step in the proceeding is needed for fair trial. If it istrue of men of intelligence, how much true is it of theignorant and the illiterate or those of lower intellect anaccused without the lawyer faces the danger of convictionbecause he does not know how to establish his innocence.”

15.4 Justice Dattu was of the view that the case should be remanded to thetrial Court with specific direction that the trial Court would assist theaccused in employing State counsel before the commencement of the trialtill its conclusion. Justice Prasad was of the view that “after such distanceof time it shall be travesty of justice to direct for the Appellant’s de novotrial”. As result of the above difference of opinion, the matter was placedbefore larger Bench of three learned Judges of the Supreme Court.

15.5 In their unanimous verdict in Mohd. Hussain v. State (Govt. of NCT ofDelhi) (2012) 9 SCC 408 (hereafter Mohd. Hussain-II’), the three-Judge

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Bench held that since the offences with which the accused had been chargedwere of serious nature, the prosecution had to be taken to its logicalconclusion. If there had to be no failure of justice “the retrial of the Appellantin the facts and circumstances is indispensable”. It was held that “it isimperative that justice is secured after providing the Appellant with legalpractitioner if he does not engage lawyer of his choice”.

15.6 On the aspect of the direction for retrial, the Supreme Court in Mohd.Hussain-II referred to the following observations in Satyajit Banerjee v.State of West Bengal (2005) 1 SCC 115:

“25. Since strong reliance has been placed on Best Bakerycase (Gujarat riots case) it is necessary to record note ofcaution. That was an extraordinary case in which this Courtwas convinced that the entire prosecution machinery wastrying to shield the accused i.e. the rioters. It was also foundthat the entire trial was farce. The witnesses were terrifiedand intimidated to keep them away from the court. It is in theaforesaid extraordinary circumstances that the court not onlydirected de novo trial of the whole case but made furtherdirections for appointment of the new prosecutor with dueconsultation of the victims. Retrial was directed to be heldout of the State of Gujarat.

26. The law laid down in Best Bakery case in the aforesaidextraordinary circumstances, cannot be applied to all casesagainst the established principles of criminal jurisprudence.Direction for retrial should not be made in all or every casewhere acquittal of accused is for want of adequate or reliableevidence. In Best Bakery case the first trial was found to be afarce and is described as "mock trial". Therefore, thedirection for retrial was in fact, for real trial. Such

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extraordinary situation alone can justify the directions asmade by this Court in Best Bakery case.

15.7 The three-Judge Bench in Mohd. Hussain-II then held as under:

“41. The appellate court hearing criminal appeal from ajudgment of conviction has power to order the retrial of theaccused under Section 386 of the Code. That is clear fromthe bare language of Section 386(b). Though such powerexists, it should not be exercised in routine manner. denovo trial or retrial of the accused should be ordered by theappellate court in exceptional and rare cases and only whenin the opinion of the appellate court such course becomesindispensable to avert failure of justice. Surely this powercannot be used to allow the prosecution to improve upon itscase or fill up the lacuna. retrial is not the second trial; it iscontinuation of the same trial and same prosecution. Theguiding factor for retrial must always be demand of justice.Obviously, the exercise of power of retrial under Section386(b)oftheCode,willdependonthefactsandcircumstances of each case for which no straitjacket formulacan be formulated but the appeal court must closely keep inview that while protecting the right of an accused to fair trialand due process, the people who seek protection of law donot lose hope in legal system and the interests of the societyare not altogether overlooked.”

16. In Mohd. Ajmal Amir Kasab v. State of Maharashtra AIR 2012 SC3565, the Supreme Court reiterated the non-derogability of the fundamentalright of an accused facing criminal trial for grave charges to be represented

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by counsel at every stage of the trial. The following passages from the saiddecision are relevant:

“476…..It is common knowledge, of which we take judicial notice,that there is great hiatus between what the law stipulates and therealities on the ground in the enforcement of the law. The abuses of theprovisions of the Code of Criminal Procedure are perhaps the mostsubversive of the right to life and personal liberty, the most preciousright under the Constitution, and the human rights of an individual.Access to lawyer is, therefore, imperative to ensure compliance withstatutory provisions, which are of high standards in themselves andwhich, if duly complied with, will leave no room for any violation ofConstitutional provisions or human rights abuses.

477. In any case, we find that the issue stands settled long ago and isno longer open to debate. More than three decades ago, inHussainara Khatoon (IV) v. Home Secretary, State of Bihar (1980) 1SCC 98, this Court referring to Article 39-A, then newly added to theConstitution, said that the article emphasised that free legal aid was anunalienable element of "reasonable, fair and just" procedure, forwithout it person suffering from economic or other disabilities wouldbe deprived from securing justice. In paragraph 7 of the Judgment theCourt observed and directed as under:

“....The right to free legal services is, therefore, clearly anessential ingredient of "reasonable, fair and just", procedure fora person accused of an offence and it must be held implicit in theguarantee of Article 21. This is constitutional right of everyaccused person who is unable to engage lawyer and securelegal services on account of reasons such as poverty, indigenceor incommunicado situation and the State is under mandate toprovide lawyer to an accused person if the circumstances ofthe case and the needs of justice so require, provided of courseessential ingredient of "reasonable, fair and just", procedure fora person accused of an offence and it must be held implicit in theguarantee of Article 21. This is constitutional right of everyaccused person who is unable to engage lawyer and securelegal services on account of reasons such as poverty, indigenceor incommunicado situation and the State is under mandate toprovide lawyer to an accused person if the circumstances ofthe case and the needs of justice so require, provided of course

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the accused person does not object to the provision of suchlawyer. We would, therefore, direct that on the next remanddates, when the undertrial prisoners, charged with bailableoffences, are produced before the Magistrates, the StateGovernment should provide them lawyer at its own cost for thepurpose of making an application for bail, provided that noobjection is raised to such lawyer on behalf of such under-trialprisoners and if any application for bail is made, the Magistratesshould dispose of the same in accordance with the broad outlinesset out by us in our Judgment dated February 12, 1979. TheState Government will report to the High Court of Patna itscompliance with this direction within period of six weeks fromtoday.”

478. Two years later, in Khatri (II) relating to the infamous case ofblinding of prisoners in Bihar, this Court reiterated that the right to freelegal aid is an essential ingredient of due process, which is implicit inthe guarantee of Article 21 of the Constitution.

481. The resounding words of the Court in Khatri (II) are equally, ifnot more, relevant today than when they were first pronounced. InKhatri (II) the Court also alluded to the reasons for the urgent need ofthe accused to access lawyer, these being the indigence and illiteracyof the vast majority of Indians accused of crimes.

482. As noted in Khatri (II) as far back as in 1981, person arrestedneeds lawyer at the stage of his first production before the magistrate,to resist remand to police or jail custody and to apply for bail. Hewould need lawyer when the chargesheet is submitted and the

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magistrate applies his mind to the chargesheet with view todetermine the future course of proceedings. He would need lawyer atthe stage of framing of charges against him and he would, of course,need lawyer to defend him in trial.

483. To deal with one terrorist, we cannot take away the right given tothe indigent and under-privileged people of this country by this Courtthirty one (31) years ago.

484. We, therefore, have no hesitation in holding that the right toaccess to legal aid, to consult and to be defended by legalpractitioner, arises when person arrested in connection with acognizable offence is first produced before magistrate. We,accordingly, hold that it is the duty and obligation of the magistratebefore whom person accused of committing cognizable offence isfirst produced to make him fully aware that it is his right to consult andbe defended by legal practitioner and, in case he has no means toengage lawyer of his choice, that one would be provided to him fromlegal aid at the expense of the State. The right flows from Articles 21and 22(1) of the Constitution and needs to be strictly enforced. We,accordingly, direct all the magistrates in the country to faithfullydischarge the aforesaid duty and obligation and further make it clearthat any failure to fully discharge the duty would amount to derelictionindutyandwouldmaketheconcernedmagistrateliabletodepartmental proceedings.”

17. The above decisions make it abundantly clear that the right of an accusedto fair hearing may be vitiated by an “overhasty, stage-managed, tailoredand partisan trial”. What has also been repeatedly emphasised is thatproviding an accused with the services of lawyer is not an empty formality.

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The accused has right “to have the guiding hand of the counsel at every stepof the proceeding”. In the present case, the failure by the learned trial Courtto ensure that the accused was duly represented by counsel even at the stageof the framing of charges was serious infraction of his statutory andconstitutional rights of access to justice.

18. After the extraordinary haste displayed by the trial Court in recording theevidence of as many as 17 witnesses on one day i.e. 7[th]March 2012, the nextdate was fixed as 26[th]March 2012 when the evidence of 11 more witnesseswas recorded. Four of those witnesses were not cross-examined. As regardscertain key witnesses i.e. PW-25, the child witness, PW-21, the mother of thedeceased, PWs-18 and 19 who conducted the Forensic and DNA testrespectively, PW-23 who conducted the post-mortem, PW-22 at whoseinstance the body of the deceased was found and PW-24 who found the body,the transcript of their cross-examination shows that the amicus curiae wasunable to be fully prepared. It is obvious that even at that stage, i.e. less thantwenty days after his appointment, he was yet to come to grips with the case.By 26[th]March 2012 as many as 28 prosecution witnesses had already beenexamined and discharged. The next date of hearing was 2[nd]April 2012 whichwas less than one week thereafter. Again three witnesses were examined anddischarged. These witnesses included the IOs PW-30, PW-31 and PW-29.Within fortnight, on 17[th]April 2012, the statement of the accused wasrecorded under Section 313 CrPC. On 2[nd]May 2012, spot inspection wascarried out and on 11[th]May 2012 the trial Court delivered 166-pagejudgment convicting the accused.

19. The Court fails to understand why the learned trial Court was in such atearing hurry to complete the entire trial without giving learned amicuscuriae for the accused sufficient time to prepare himself and to conduct aproper trial. It must be remembered that the more serious the crime thegreater the need to ensure that there is no compromise whatsoever on the fairtrial procedures. Otherwise the constitutional guarantee enshrined in Article21 of just, fair and reasonable procedure established by law, would berendered illusory. The manner in which the trial has been conducted in thepresent case by the learned trial Judge leaves no room for doubt that there hasbeen serious infraction of the fundamental right of the accused to fairtrial. It has, resulted in grave miscarriage of justice and for that very reasonthe impugned judgment convicting the accused and the consequential orderon sentence awarding him capital punishment cannot be sustained in law.

20. An application, Crl. M.A No. 561 of 2013, has been filed by the accusedunder Section 391 CrPC praying for the recall of the prosecution witnessesand to be given further opportunity for their cross-examination. detailedreply has been filed to the said application by the State. This Court has heardthe submissions of Mr. Bhupesh Narula, learned counsel for the Appellant,assigned to the Appellant by the Delhi High Court Legal Services Committeeand Ms. Richa Kapoor, learned APP for the State. Ms. Kapoor, while notdenying that an opportunity ought to be given to the accused to cross-examine the witnesses, sought to categorise the prosecution witnesses intothose whose cross-examination had taken place in the trial Court and thosewho had not been cross-examined.

21. However, the Court finds on going through the transcript of evidence,that it is not possible to make such distinction for more than one reason.On 17[th]March 2012 when 17 prosecution witnesses were examined anddischarged it must not have been possible for the counsel for the accused toeven get familiar with the matter since he was appointed on that very date bythe trial Court. Whatever cross-examination was done, therefore, cannot besaid to be by counsel who was in full grasp of the matter. Also it is possiblethat the answers given by witnesses who were examined and discharged mayhave had bearing on the cross-examination of the other witnesses. It isdifficult at this stage to assess whether the failure of the counsel for theaccused to have proper opportunity to examine the 17 prosecutionwitnesses on 7[th]March 2012 had an impact on the cross-examination of theremaining prosecution witnesses on the subsequent dates.

22. As far as the consequential order is concerned, with the incident inquestion taking place on 11[th]July 2011 and the accused being in custodysince 14[th]July 2011, it cannot be said that there has been any delay in thecase being processed and trial commencing. Further, the charge against theaccused is indeed very serious one. As explained in Mohd. Hussain-II theguiding factor for retrial shall always be the demand of justice. It hasfurther been explained in the said decision that retrial is not second trial; itis continuation of the same trial and same prosecution. It has further beenemphasised that the Appellate Court must “keep in view that while protectingthe right of an accused to fair trial and due process, the people who seekprotection of law do not lose hope in legal system and the interests of thesociety are not altogether overlooked”.

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23. Accordingly the impugned judgment dated 11[th]May 2012 and the orderon sentence dated 31[st]May 2012 passed by the learned trial Court are herebyset aside. Consequently, the Court remands the matter to the court of thelearned ASJ for retrial. In other words, the trial will commence with theexamination and cross-examination of the prosecution witnesses. It isclarified that the transcript of the evidence already recorded will remain andcan be referred to by counsel on either side. proper opportunity shall begiven to learned counsel for the accused to cross-examine the prosecutionwitnesses afresh. This would include the right of the prosecution to seek re-examination of any of the witnesses in accordance with law. Further the rightof the accused to lead evidence in accordance with law is also reserved. Crl.M.B. No. 1772 of 2012 for suspension of sentence is dismissed. However,this will not preclude the accused from applying to the trial court for bail inaccordance with law.24. The Court appoints Mr. Bhupesh Narula as amicus curiae for the accusedin the trial Court. The entire trial Court record will be returned forthwiththrough Special Messenger and be placed before the District and SessionsJudge (D&SJ), Rohini Courts on 7[th]March 2014 for being assigned to theCourt of learned ASJ other than the one who delivered the impugnedjudgment of conviction and order on sentence which have been set aside bythis judgment. The accused will also be produced from judicial custody inthat Court. Mr. Bhupesh Narula will also remain present. It is made clear thatif the accused wishes to engage any other counsel of his own choice, thenthat option will also be made available to him by the learned D&SJ. It is

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hoped that the fresh trial process would be completed as expeditiously aspossible, and not later than six months from the aforementioned date and ajudgment delivered not later than period of seven months thereafter.

25. Death Sentence Reference No. 3 of 2012 is accordingly answered andCrl. A. No. 1146 of 2012 the appeal is allowed in the above terms but in thecircumstances with no order as to costs. Crl. M.A. No. 561 of 2013 is alsodisposed of accordingly.

S. MURALIDHAR, J.MUKTA GUPTA, J.FEBRUARY 21, 2014dn

DSR No. 3 of 2012 & CRL. A. No. 1146 of 2012