Death Reference No. 11 of 2013. Case: The State of Bihar Vs Hemlal Sah. High Court of Patna (India)
| Case Number | Death Reference No. 11 of 2013 |
| Counsel | For Petitioner: Ashwini Kumar Singh, APP and For Respondents: Prabhat Ranjan Singh, APP, G.P. Jaiswal, APP |
| Judges | I. A. Ansari, J. and Samarendra Pratap Singh , J. |
| Issue | Indian Penal Code (45 of 1860) - Sections 376, 302; Protection of Children from Sexual Offences Act (32 of 2012) - Sections 4, 8 |
| Citation | 2014 CriLJ 1767 |
| Judgement Date | February 11, 2014 |
| Court | High Court of Patna (India) |
Judgment:
I. A. Ansari, J.
-
Under challenge, in the present appeal, are the judgment, dated 01.10.2013, passed, in Sessions Trial No.440 of 2013, by learned Sessions Judge, Jamui, and the order, dated 19.10.2013, whereby sentence has been imposed on the accused-appellant.
-
By the impugned judgment, learned trial Court has convicted the accused-appellant under Sections 376 and 302 of the Indian Penal Code and also under Sections 4, 6, 8 and 10 of the Prevention of Children from Sexual Offences Act, 2012. Following his conviction under Section 302 of the Indian Penal Code, the accused-appellant has been sentenced to death. No separate sentence has been passed against the accused-appellant for his conviction under Section 376 of the Indian Penal Code and/or Sections 4, 6, 8, and 10 of the Prevention of Children from Sexual Offences Act, 2012
-
The case of the prosecution, as unfolded at the trial, may, in brief, be described as under:
(i) Deceased N.K. (name not mentioned for the reasons of confidentiality) was daughter of PW 2, who used to live with his brothers having a common courtyard. On 24-8-2013, at about 7.00 a.m., N.K. accompanied by her cousin, R.K. (name not being mentioned), daughter of PW 5, went to paddy field for clearing their bowels. After clearing her bowels, when PW 4 (R.K.), aged about 14 years and a student of school, went to wash her hands, accused Hem Lal Sah, who had been hiding in the bushes, came out, caught hold of N.K., threw her on the ground and forcibly started having sexual intercourse with her by catching hold of her neck and wrapping a dupatta (a sheet of clothes worn for covering the face), around her neck and said that if she (N.K.) shouted, he would kill her. On witnessing the ghastly occurrence, PW 4 went running to her house and narrated the occurrence to her parents and also to the parents of N.K., whereafter N.K's parents and also the parents of PW 4 came running to the paddy field and when they reached the said field, they saw accused Hem Lal Sah fleeing away towards south. As the parents and also uncle and aunt of N.K. were seriously concerned about N.K., they started looking for N.K. and found her dead body lying in the bushes, N.K. having been put to death by tying a dupatta around her neck. They also noticed that paijama (trouser) of N.K. was untied. In the meanwhile, many of the co-villagers of PW. 4 gathered near the place of occurrence and they took N.K's dead body to her house.
(ii) A fardbeyan was lodged, on 24-8-2013 itself, at 1.30 p.m., at Chandramandi police station, with regard to the occurrence, by PW. 2, father of N.K. Treating the said fardbeyan as First Information Report, Chandramandi P.S. Case No. 70 of 2013, under Sections 376/302 of the Indian Penal Code, was registered against the accused and police investigation commenced. During investigation, police visited the place of occurrence, held inquest over the said dead body, prepared inquest report (Exhibit-2). The said dead body was subjected to post-mortem examination, which revealed that the bladder of the said deceased was empty, there was bruise, measuring 3" wide, encircling the neck, bleeding from vagina with lacerated wound extending from vaginal orifice to vaginal canal having blood clots. The injuries found were ante mortem in nature. In the opinion of the doctor, the injuries, on the private parts of the said deceased, were indicative of her having been subjected to forcible penetration and her cause of death was strangulation. During investigation, accused was arrested and, on completion of investigation, a charge-sheet was laid, under Sections 376/302 of the Indian Penal Code read with Sections 4/6/8/10 of the Prevention of Children from Sexual Offences Act, 2012, against the accused.
-
At the trial, as the accused had not appointed any counsel of his choice, a counsel was appointed for his defence by order, dated 09.09.2013, and the charges were framed under Sections 376 and 302 of the Indian Penal Code, on the same day i.e. on 09.09.2013. Charges were also framed under Sections 4, 6, 8, 10 and 12 of the Prevention of Children from Sexual Offences Act, 2012. To the charges so framed, accused pleaded not guilty.
-
In support of their case, prosecution examined altogether ten witnesses. The accused was, then, examined under Section 313(1)(b) Cr.P.C. and, in his examination aforementioned, the accused denied that he had committed the offences, which, he was alleged to have committed, his case being, in brief, that he had, at the relevant point of time, gone to take bath in the river, situated near his house, and, upon returning home, he dressed up, went to the house of Raju Sah and when he returned home, he, on being informed about the dead body of N.K., went there and saw the said dead body. No evidence, according to the record of the case, was adduced by the defence.
-
Having found the accused guilty of the offences, which he was charged with, learned trial Court convicted him accordingly. However, on account of the fact that the accused had been sentenced to death following his conviction under Section 302 of the Indian Penal Code, learned trial Court did not pass any separate sentence for other offences, which the accused was held guilty of and accordingly convicted by the learned trial Court.
-
For the reason that sentence of death has been passed against the accused, learned trial Court, in terms of the provisions of Section 366, Cr.P.C., committed the proceedings of the case to this Court for confirmation of the sentence of death. At the same time, aggrieved by his conviction and sentence passed against him, the accused, as a convicted person, has preferred appeal.
-
The reference made by the learned trial Court, under Section 366, Cr.P.C., has given rise to Death Reference No. 11 of 2013; whereas the appeal, preferred by the appellant, has come to be registered as Cr. Appeal (DB) No. 1045 of 2013.
-
We have heard Mr. Prabhat Ranjan Singh, learned counsel for the accused-appellant, and Mr. Ashwini Kumar Sinha, learned Additional Public Prosecutor appearing for the State.
-
Before we enter into the discussion of the merit of the present appeal, we may pause to place on record that according to the learned counsel for the appellant, the trial has been rendered unfair, because of certain infirmities, which had crept into the trial.
-
With regard to the above, it has been pointed out that the accused, on a query made by the learned trial Court on 09.09.2013, informed the Court that he had not appointed any counsel for his defence, whereupon a counsel was appointed by the accused on 09.09.2013 itself and the charges were framed.
-
It is the submission of the learned counsel for the appellant that when the counsel had been appointed on 09.09.2013, charges ought not to have been framed on the very day of appointment of the counsel for the accused.
-
Ideally speaking, it would have been appropriate, on the part of the learned trial Court, to have framed charges upon giving some time to the learned counsel, whom the learned trial Court had appointed to defend the accused-appellant.
-
While, however, considering the above aspect of the appeal, one cannot avoid noticing two material facts, namely, (i) there is no indication from the order, dated 09.09.2013, that the learned counsel, who was appointed to defend the accused- appellant, had sought for time and (ii) we have carefully gone through the materials on record, which have been collected during investigation, and we do not find that on the basis of such materials, no charges could have been framed under the penal provisions, whereunder charges have, eventually, been framed by the learned trial Court.
-
Coupled with the above, and more importantly, we do not find that the framing of the charges, on the day (when the learned counsel was appointed for the accused-appellant), had caused any prejudice to the accused. In fact, we called upon the learned counsel for the appellant to show prejudice, if any, having been caused to the accused-appellant, because of framing of the charges against the accused-appellant on the day, a counsel was appointed for his defence. Nothing could, however, be brought out before us to show that any prejudice was caused to the accused-appellant, because of framing of the charges, especially, when we notice that the materials on record were sufficient to warrant framing of charges.
-
It has been next contended before us that an application had been made, on 11.09.2013, by the learned counsel, who had been appointed to defend the accused-appellant, at the trial Court, seeking copies of the relevant documents, but the relevant documents were not furnished to the accused-appellant.
-
While considering the above submission made on behalf of the accused-appellant, we notice that the learned trial Court has mentioned, in this regard, in the order, dated 11.09.2013, that the copies of the relevant document had been furnished to the accused-appellant. This apart, omission to furnish to an accused copies of materials, relied upon by the prosecution, would not ipso facto vitiate his trial. It is, therefore, incumbent, on the part of the Court, to determine if any prejudice has been caused to the accused in consequence of omission to furnish copies, unless the Court is satisfied that no prejudice has been caused to the accused, the Court cannot sustain conviction.
-
In Noor Khan v. State of Rajasthan (AIR 1964 SC 286), the Supreme Court has held as under:
"15. The object of Ss. 162, 173 (4) and 207A(3) is to enable the accused to obtain a clear picture of the case against him before the commencement of the inquiry. The sections impose an obligation upon the investigation officer to supply before the commencement of the inquiry copies of the statements of witnesses who are intended to be examined at the trial so that the accused may utilize those statements for cross-examining the witnesses to establish...
To continue reading
Request your trial