Orissa HC overturns death penalty in POCSO case, orders fresh trial within 6 months
The bench pulled up the trial court for failing to ensure effective legal representation for the convict Sanjeeb Kerketta and for neglecting critical procedural safeguards
Citing a “perfunctory and mechanical” trial marred by procedural lapses, the Orissa high court has overturned the death sentence of a man convicted in 2023 for the rape and murder of a five-year-old girl in Odisha’s Sundargarh district.
The court, emphasising that the right to a fair trial is not merely the accused’s privilege but a societal imperative, has ordered a fresh trial within six months, directing the trial court to uphold fairness and due process.
A division bench of Justices BP Routray and Chittaranjan Dash, while setting aside the conviction, pulled up the trial court for failing to ensure effective legal representation for the convict Sanjeeb Kerketta and for neglecting critical procedural safeguards.
“The grievous nature of the offence cannot alone justify the death penalty without a genuine inquiry into the offender’s circumstances,” the court observed, noting that the trial court’s rushed sentencing process, devoid of evaluating mitigating factors, violated Article 21’s guarantee of the right to life.
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“Such an approach undermines the constitutional commitment to fair trial standards,” the bench added.
The case dates to October 21, 2016, when the young girl was abducted from her home in Sundargarh while sleeping beside her widowed mother. The mother raised an alarm, but the perpetrator fled. Four days later, on October 25, the girl’s body was found in an under-construction house. A post-mortem confirmed rape and murder, with neuro-hemorrhagic shock due to genital injuries as the cause of death.
Police recovered a bloodstained T-shirt and a wallet linked to Kerketta, leading to his arrest.
In October 2023, the Protection of Children from Sexual Offences (POCSO) court in Sundargarh convicted him under Sections 450, 366, 376(2) (i), 376(A), 302, and 201 of the IPC, and Section 6 of the POCSO Act, sentencing him to death.
Kerketta appealed to the high court, alleging grave procedural irregularities that denied him a fair trial.
He argued he was deprived of competent legal representation, unable to engage a counsel himself.
Multiple state-appointed counsels either withdrew or provided only formal representation, failing to cross-examine key prosecution witnesses, including the doctor who conducted the post-mortem.
Kerketta’s lawyer highlighted that his statement under Section 313 CrPC, meant to allow him to explain incriminating evidence, was defective, with critical elements like DNA evidence—which showed no match with the victim’s vaginal swab or clothes—not properly presented. He contended that the circumstantial evidence, including the “last seen” theory and recovered items, was inconclusive and did not form an unbroken chain of guilt.
The high court’s scrutiny revealed a litany of lapses.
For nearly ten months after Kerketta’s arrest, no state defence counsel (SDC) was appointed, and no Vakalatnama (legal document) was filed. When an SDC was finally appointed in August 2017, she withdrew on the same day charges were framed. Over the trial’s duration, three more SDCs were appointed, but each withdrew within months, and another counsel exited within two years. The final SDC, appointed in August 2021, failed to appear consistently, leaving key witnesses unchallenged.
“Witnesses were either not cross-examined or done so in a perfunctory manner, failing to elicit contradictions that could have aided the defence,” the court noted. No defence evidence was presented, and final arguments lacked diligence.
The court further criticized the trial court for not ensuring that appointed counsels received complete case records, rendering their representation ineffective. The examination under Section 313 CrPC was equally flawed, with “excessively lengthy” questions covering multiple circumstances in a single breath, depriving Kerketta of a meaningful opportunity to respond.
“The trial court made no effort to understand the accused’s predicament,” the bench remarked, calling the process “disgusting” for its failure to filter specific evidence for explanation.
The absence of a proper sentencing hearing was also observed.
The trial court did not explore mitigating factors, such as Kerketta’s background or potential for reformation, mandatory in death penalty cases.
“The failure to conduct a balancing exercise between aggravating and mitigating circumstances vitiated the sentencing process,” the court held, stressing that this touched upon the right to life itself.
The bench underscored that cross-examination remained a vital safeguard, and the inaction of court-appointed counsels constituted a violation of Kerketta’s rights.
“The cumulative effect of these deficiencies prejudiced the accused’s case, resulting in manifest injustice,” the court said. It declared the trial “constitutionally impermissible,” as it undermined public faith in the justice system.
The high court remanded the case to the Sundargarh POCSO court for a de novo trial from the charge-framing stage, with strict directives: appoint competent defence counsel, provide adequate preparation time, furnish complete case records, frame Section 313 CrPC questions distinctly, and conduct a substantive sentencing hearing if needed.
The trial must conclude within six months, with the court urged to consider a special prosecutor to ensure robust representation, the HC bench said.
