Anokhilal vs The State Of Madhya Pradesh

2. The relevant facts for the purposes of these appeals, in brief, are as under:

(B) The body of the victim was found in an open field on 01.02.2013.

(C) The appellant was arrested on 04.02.2013, and after completion of investigation charge-sheet was filed on 13.02.2013 in the concerned court and the case was committed to Sessions Court on 18.2.2013. The case was posted for 19.02.2013 to consider whether charges be framed or not.

(F) Thereafter, the case was dealt with on 27.2.2013, 28.2.2013, 1.3.2013, 2.3.2013 and 4.3.2013 and the orders passed by the Trial Court were :-

(iii) 01.03.2013 State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf. The prosecution has not received DNA report, same will be placed on record on receipt.

(iv) 02.03.2013 Criminal Appeal Nos.62-63 of 2014 Anokhilal v. State of Madhya Pradesh 6 State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan advocate present on his behalf.

It has been stated by the public prosecutor that above witnesses are present today, hence, above both the witnesses were additionally examined with consent of defense and they were discharged after re- examination. Prosecution stated not to adduce any other evidence as such closed its evidence. Criminal Appeal Nos.62-63 of 2014 Anokhilal v. State of Madhya Pradesh 8 The packet of article so filed is in sealed condition, which was opened in presence of both the parties. After evidence let same be deposited in malkhana by duly sealing with memo of property.

Sessions Judge and Special Judge Under Protection of Children from Sexual Offences Act, Khandwa Again State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan, Advocate present on his behalf.

(v) 4.3.2013 State through Shri B.L. Mandloi P.P. Criminal Appeal Nos.62-63 of 2014 Anokhilal v. State of Madhya Pradesh 9 Accused Anokhilal present from judicial custody. Shri D.S. Chauhan, advocate present on his behalf. The judgment pronounced and signed separately in open court, according to which accused was convicted under Section 363, 366, 377, 376(2)(f) and Section 302 IPC read with Section 6 of Protection of Children from Sexual Offences Act, 2012.

Sessions Judge and special Judge Under Protection of Children from Sexual Offences Act, Khandwa Again State through Shri B.L. Mandloi P.P. Accused Anokhilal present from judicial custody. Shri D.S. Chauhan, Advocate present on his behalf. Criminal Appeal Nos.62-63 of 2014 Anokhilal v. State of Madhya Pradesh 10 Both the parties again stated not to adduce any evidence regarding order of sentence, hence order of sentence was pronounced separately in open court according to which accused is convicted and sentenced as follows regarding charges:

Sessions Judge and Special Judge Under Protection of Children from Sexual Offences Act, Khandwa (G) In its judgment and order dated 4.3.2013, the Trial Court accepted the case of the prosecution and stated:-

Not only this, according to the report, blood found on the underwear of accused was of the victim. The cremation of the body of victim was done on 1.2.2013 whereas the accused was arrested on 4.2.2013. There was, therefore, no possibility of the blood of victim having been put on the seized underwear of the accused.

7. In Bashira2, the Trial Court had fixed 28th February, 1967 as the date for starting the actual trial and, on that very day, before beginning the trial, an Amicus Curiae was appointed to represent the accused. On that very day, the Trial Court amended the charge to which the accused pleaded not guilty and two principal prosecution witnesses were examined. The 2 (1969) 1 SCR 32 : AIR 1968 SC 1313 3 (2012) 9 SCC 408 Criminal Appeal Nos.62-63 of 2014 Anokhilal v. State of Madhya Pradesh 18 other witnesses were examined on 1st March, 1967 and the accused was also examined under Section 342 of the Code of Criminal Procedure, 1898 (equivalent to Section 313 of the Code of Criminal Procedure, 1973 or “the Code”, for short). The case was thereafter fixed on 10th March, 1967 for arguments, on which date the Amicus Curiae presented an application for recall of one of the prosecution witnesses for further cross-

Since there is no effective objection regarding allowing above application and taking on record above FSL report and even otherwise these may be helpful in providing justice, hence reports are taken on record.

concurred with H.L. Dattu, J. and accepted that the Judgments of conviction and sentence be set aside as the appellant-accused was not given assistance of a lawyer to defend himself during trial. However, in his view, the case was not required to be remanded for fresh trial and the benefit of complete acquittal be given to the appellant-accused.

40. The fair trial for a criminal offence consists not only in technical observance of the frame and forms of law, but also in recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice.” The Bench emphasised that: (Best Bakery case19, SCC p. 192, para 52) Criminal Appeal Nos.62-63 of 2014 Anokhilal v. State of Madhya Pradesh 35 “52. Whether a retrial under Section 386 of the Code or taking up of additional evidence under Section 391 of the Code [in a given case] is the proper procedure will depend on the facts and circumstances of each case for which no straitjacket formula of universal and invariable application can be formulated.”

40. “Speedy trial” and “fair trial” to a person accused of a crime are integral part of Article 21. There is, however, qualitative difference between the right to speedy trial and the accused’s right of fair trial. Unlike the accused’s right of fair trial, deprivation of the right to speedy trial does not per se prejudice the accused in defending himself. The right to speedy trial is in its very nature relative. It depends upon diverse circumstances. Each case of delay in conclusion of a criminal trial has to be seen in the facts and circumstances of such case. Mere lapse of several years since the commencement of prosecution by itself may not justify the discontinuance of prosecution or dismissal of indictment. The factors concerning the accused’s right to speedy trial have to be weighed vis-à-vis the impact of the crime on society and the confidence of the people in judicial system. Speedy trial secures rights to an accused but it does not preclude the rights of public justice. The nature and gravity of crime, persons involved, social impact and societal needs must be weighed along with the right of the accused to speedy trial and if the balance tilts in favour of the former the long delay in conclusion of criminal trial should not operate against the continuation of prosecution and if the right of the accused in the facts and circumstances of the case and exigencies of situation tilts the balance in his favour, the prosecution may be brought to an end. These principles must apply as well when the appeal court is confronted with the question whether or not retrial of an accused should be ordered.” Criminal Appeal Nos.62-63 of 2014 Anokhilal v. State of Madhya Pradesh 36

18. Expeditious disposal is undoubtedly required in criminal matters and that would naturally be part of guarantee of fair trial. However, the attempts to expedite the process should not be at the expense of the basic elements of fairness and the opportunity to the accused, on which postulates, the entire criminal administration of justice is founded. In the 25 (2012) 9 SCC 771 Criminal Appeal Nos.62-63 of 2014 Anokhilal v. State of Madhya Pradesh 44 pursuit for expeditious disposal, the cause of justice must never be allowed to suffer or be sacrificed. What is paramount is the cause of justice and keeping the basic ingredients which secure that as a core idea and ideal, the process may be expedited, but fast tracking of process must never ever result in burying the cause of justice.

20. We, therefore, have no hesitation in setting aside the judgments of conviction and orders of sentence passed by the Trial Court and the High Court against the appellant and directing de novo consideration. It shall be open to the learned counsel representing the appellant in the Trial Court to make any submissions touching upon the issues (i) whether the charges framed by the Trial Court are required to be amended or not; (ii) whether any of the prosecution witnesses need to be recalled for further cross-examination; and (iii) whether any expert evidence is required to be led in response to the FSL report and DNA report. The matter shall, thereafter, be considered on the basis of available material on record in accordance with law.

22. Before we part, we must lay down certain norms so that the infirmities that we have noticed in the present matter are not repeated:-

24. With the aforesaid observations, the substantive appeals stand disposed of, but the matter be listed on 18.02.2020 as directed.

December 18, 2019.