@JUDGMENTTAG-ORDER
Satish K. Aanihotri, C.J.(Oral)—The instant Appeal is directed against the conviction under the provisions of Sections 5 (j) (ii) and 5 (n) of the Protection of Children from Sexual Offences Act, 2012 (for short, ''POCSO Act, 2012'') and also under Section 506 of the Indian Penal Code (for short ''IPC'') and sentenced thereafter vide, Judgment dated 29.04.2015. On having been convicted under the afore stated provisions, the appellant was sentenced to Rigorous Imprisonment of 10 years and pay a fine of Rs.20,000/- under Sections 5 (j) (ii) and 5 (n) of the POCSO Act, 2012 and further simple imprisonment of 3 years under Section 506 IPC. In default of payment, the appellant was further directed to undergo simple imprisonment of one year.
2. It was alleged that the accused/ appellant indulged into unlawful and un-consensual sexual intercourse with a minor, namely Ms. S, aged about 15 years, in the month of February, 2014. The said sexual intercourse resulted into begetting a female child on 12.11.2014. The accused/ appellant was tried and convicted under the afore stated provisions of law. Prior to it, the blood samples of the newly born baby of the victim, victim and the accused/appellant was collected with the permission of the Judicial Magistrate and the same was sent to State Forensic Science Laboratory, Tripura for DNA analysis on 21.01.2015. Without awaiting for the report, the learned trial Judge proceeded with the trial and on the basis of several circumstantial evidence, came to the conclusion that the victim, namely Ms. S, was sexually assaulted by the accused/appellant, which resulted into birth of a child. Accordingly, the accused/appellant was convicted under the provisions of Sections 5 (j) (ii) and 5 (n) of the POCSO Act, 2012 and Section 506 of the IPC, and sentenced thereon, as afore stated.
3. During the pendency of this appeal, the prosecution has filed an application being IA No. 01/2016 submitting the DNA report in a sealed cover. A copy of the report was handed over to the accused/appellant. On perusal of the said report, the accused/appellant has made the instant application, IA No. 03/2016, seeking for retrial in the light of DNA report.
4. In view of the above, the appeal as well as the application, being IA No. 03/2016, are taken up together for consideration and decision.
5. On perusal of the impugned judgment, it is evident-that the birth of a child on the allegation of alleged rape seems to be the main consideration for holding the accused/ appellant guilty. The victim had also deposed in her statement that the birth of a child was on account of unlawful sexual intercourse by the accused/appellant. Other depositions affirm the allegation of the victim in respect of the alleged rape.
6. Unlawful dnd un-consensual sexual intercourse is termed as ''rape'' which is a criminal offence and as such punishable under the provisions of IPC and if a minor is a victim, the same is punishable under the provisions of POCSO Act also. It is stated that the DNA report does not support the case of the prosecution.
7. The High Court exercising appellate jurisdiction is competent to direct retrial or de-novo trial in a given facts and circumstances. The Supreme Court in Mohd. Hussain alias Julfikar Ali v. State (Government of NCT of Delhi)1, settled the position of law as under: -
"41. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is dear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A de novo trial or retrial of the 1 (2012) 9 SCC 408 accused should be ordered by the appellate court in exceptional and rare cases and only when in the opinion of the appellate court such course becomes Indispensable to avert failure of justice. Surely this power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. A retrial is not the second trial, it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386 (b) of the Code, will depend on the facts and circumstances of each case for which no straitjacket formula can be formulated but the appeal court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked."
8. In Zahira Habibulla H. Sheikh and another v. State of Gujarat and others (2004) 4 SCC 158, in a case wherein there was an allegation that the prosecutor has not performed its duty which led to acquittal of accused persons, the Supreme Court directing the retrial, held as under: -
"54. Though justice is depicted to be blindfolded, as popularly said, it is only a veil not to see who the party before it is while pronouncing judgment on the cause brought before it by enforcing law and administer justice and not to ignore or turn the mind/attention of the court away from the truth of the cause or is before it, in disregard of its duty to prevent miscarriage of justice. When an ordinary citizen makes a grievance against the mighty administration, any indifference, inaction or lethargy shown in protecting his right guaranteed in law will tend to paralyse by such inaction or lethargic action of courts and erode in stages the faith inbuilt in the judicial system ultimately destroying the very justice-delivery system of the country itself. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted and diverted by manipulative red herrings.
55. The courts, at the expense of repetition we may state, exist for doing justice to the persons who are affected. The trial/first appellate courts cannot get 2 (2004) 4 SCC 158 swayed by abstract technicalities and close their eyes to factors which need to be positively probed and noticed. The court is not merely to act as a tape recorder recording evidence, overlooking the object of trial i.e. to get at the truth. It cannot be oblivious to the active role to be played for which there is not only ample scope, but sufficient powers conferred under the Code. It has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself.
56. As pithily stated in Jennison v. Baker : (All ER p. 1006d)
"The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection.lose hope".
Courts have to ensure that accused persons are punished and that the might or authority of the State are not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution has to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record sot that there might not be miscarriage of justice. (See Shak''la Abdul Gafar Khan v. Vasant Raghunath Dhoble)"
9. The said dicta was referred with approval subsequently by the Supreme Court in Satyajit Banerjee v. State of WB (2005) 1 SCC 115 and Mary Pappa Jebamani v. Ganesan and others (2014) 14 SCC 477
10. Applying the well settled proposition of law to the facts of the case, the victim, a minor, at the time the alleged rape was committed, in her deposition stated that her uncle, the accused, committed unlawful and un-consensual sexual intercourse with her in February, 2014 between 6th February and 10th February, which resulted into her pregnancy and birth of a child. In her deposition, the allegation is substantial and directly against the accused only, which has been found affirmed by other witnesses, on account of circumstantial evidences. The victim has not raised a finger against any other person.
11. Learned trial Court relying on the prosecution witnesses came to the finding that the birth of the said child was on account of rape committed by the accused. Learned trial Judge ought to have awaited for the outcome of the blood samples, which was sent for analysis to the State Forensic Science Laboratory, Tripura. Without examining the said report, the learned Judge had taken a decision in haste. Examination of relevant evidence is sine quo non of just and fair trial. Collection of blood sample from the concerned persons was much before the commencement of the trial. This fact of sending blood sample for analysis was in the knowledge of learned trial Judge, thus, proceeding with the matter without examining the said report, which has come on record, subsequently, is violative of provisions of Article 21 of the Constitution of India, as it amounts to denial of fair trial.
12. The Supreme Court in Zahira Habibulla H. Sheikh and another (2004) 4 SCC 158 held as under:
"30. Right from the inception of the Judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of courts of justice. The operating principles for a fair trial permeate the common law in both civil and criminal contexts. Application of these principles involves a delicate judicial balancing of competing interests in a criminal trial, the Interests of the accused and the public and to a great extent that of the victim have to be weighed not losing sight of the public interest involved in the prosecution of persons who commit offences.
31. In 1846, in a judgment which Lord Chancellor Selborne would later describe as "one of the ablest judgments of one of the ablest judges who ever sat in this court", Vice-Chancellor Knight Bruce said:
"The discovery and vindication and establishment of truth are main purposes certainly of the existence of courts of justice; still, for the obtaining of these objects, which, however valuable and Important, cannot be usefully pursued without moderation, cannot be either usefully or creditably pursued unfairly or gained by unfair means, not every channel is or ought to be open to them. The practical inefficacy of torture is not, I suppose, the most weighty objection to that mode of examination. Truth, like all other good things, may be loved unwisely - may be pursued too keenly - may cost too much."
The Vice-Chancellor went on to refer to paying "too great a price for truth". This is a formulation which has subsequently been frequently invoked, including by Sir Gerard Brennan. On another occasion, in a joint judgment of the High Court, a more expansive formulation of the proposition was advanced in the following terms: "The evidence has been obtained at a price which is unacceptable having regard to the prevailing community standards."
32. Restraints on the processes for determining the truth are multifaceted. They have emerged in numerous different ways, at different times and affect different areas of the conduct of legal proceedings. By the traditional common law method of induction there has emerged in our jurisprudence the principle of a fair trial. Oliver Wendell Holmes described the process:
"It is the merit of the common law that it decides the case first and determines the principle afterwards. It is only after a series of determination on the same subject-matter, that it becomes necessary to ''reconcile the cases'', as it is called, that is, by a true induction to state the principle which has until then been obscurely felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well- settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest is to resist it at every step."
33. The principle of fair trial now informs and energises many areas of the law. It Is reflected in numerous rules and practices. It is a constant, ongoing development process continually adapted to new and changing circumstances, and exigencies of the situation - peculiar at times and related to the nature of crime, persons involved - directly or operating behind, social impact and societal needs and even so may powerful balancing factors which may come in the way of administration of criminal justice system."
In the case on hand, as analy 2:ed herein above by me, the allegation was not properly examined, which is violative of well established criminal jurisprudential procedure.
13. In such facts circumstances, it appears that the credibility of depositions laid by the prosecution is under cloud, which needs demystification by way of re-examination. This is a rare and exceptional case which reouires de novo trial.
Accordingly, the judgment of conviction and sentence Is set aside and the matter is remitted back for retrial in the light of DNA report submitted herein.
14. Needless to state that retrial does not mean that the evidence recorded earlier in the first trial be ignored or wiped out from the record. On retrial, the evidence recorded earlier be considered along ''with fresh additional evidence which may be recorded on retrial.
15. On this issue, the Supreme Court in Satyajit Banerjee held as under:
"27. So far as the position of law is concerned we are very clear that even if a retrial is directed in exercise of revisional powers by the High Court, the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial Judge has to decide the case on the oasis of the evidence already on record and the additional evidence which would be recorded on retrial".
16. On setting aside the conviction and sentence, the appellant will not be set at liberty, since the retrial has been ordered. However, the accused/appellant is at liberty to approach the trial Court for bail, in accordance with law, if so advised.
17. All the records along with DNA report be remitted back forthwith to the Court of Special Judge, POCSO, West Sikkim at Gyalshing for further proceedings.
18. Resultantly, the appeal is allowed with the direction as afore stated.
