The Supreme Court was hearing an appeal filed by the man on death row (File)
A judge has to be fair and impartial but that does not mean he will simply shut his eyes and be a mute spectator acting like a robot, the Supreme Court. The top court was criticising a trial court and the Patna High Court for awarding the death penalty to a man accused of raping and killing a girl in 2015 when she came over to watch television at his home.
Setting aside the death sentence, the top court remitted the case back to the High Court for reconsideration after noting serious flaws in the investigation.
The Supreme Court was hearing an appeal filed by the man on death row.
According to the prosecution, the accused raped and strangled the girl on June 1, 2015, at his home in Bihar's Bhagalpur district.
In 2017, a trial court in Bhagalpur convicted the man of rape and murder and sentenced him to death, holding the offence fell under the rarest of rare category.
The Patna High Court in 2018 dismissed his appeal against conviction and upheld the death penalty.
A Supreme Court bench of Justices BR Gavai, JB Pardiwala, and Prashant Kumar Mishra said there were very serious lapses in the investigation and even the Forensic Science Laboratory report was not obtained.
"The aforesaid lapse is just the tip of the iceberg. We are at pains to state that it is a very serious flaw on the part of the investigating officer and that too in such a serious matter," the bench said.
The court said another serious flaw in the present case on the part of the investigating officer was the failure to subject the appellant to a medical examination by a medical practitioner.
No explanation, much less any reasonable explanation, has been offered for such a serious flaw on the part of the investigating officer, it said.
The top court said it was aghast to see that the trial court and the High Court proceeded on the basis that the man was guilty as he came to the girl's house on the day of the incident and lured her to go to his place to watch TV.
However, witnesses had told the police that it was another juvenile accused who went to the girl's house and took her along.
"Neither the defence counsel nor the public prosecutor nor the presiding officer of the trial court and unfortunately even the High Court thought fit to look into the aforesaid aspect of the matter and try to reach to the truth...
"The presiding officer of the trial court also remained a mute spectator. It was the duty of the presiding officer to put relevant questions to these witnesses," the bench said.
The top court said the case being of rape and murder, the trial court judge ought to have acquainted himself with the important material and also with what the only important witnesses of the prosecution had said during the police investigation.
"No doubt he has to remain very vigilant, cautious, fair, and impartial, and not to give even the slightest of impression that he is biased or prejudiced either due to his own personal convictions or views in favour of one or the other party.
"This, however, would not mean that the Judge will simply shut his own eyes and be a mute spectator, acting like a robot or a recording machine to just deliver what stands fed by the parties," the bench said.
Observing that truth is the cherished principle and the guiding star of the Indian criminal justice system, the top court said the sole idea of the criminal justice system is to see that justice is done.
Justice will be said to be done when no innocent person is punished and the guilty person is not allowed to go scot-free, it said.
"Free and fair trial is sine-qua-non of Article 21 of the Constitution of India. If the criminal trial is not free and fair, then the confidence of the public in the judicial fairness of a judge and the justice delivery system would be shaken.
"Denial to a fair trial is as much injustice to the accused as to the victim and the society. No trial can be treated as a fair trial unless there is an impartial judge conducting the trial, an honest, able and fair defence counsel and equally honest, able and fair public prosecutor," the bench said.
The top court said a fair trial necessarily includes a fair and proper opportunity for the prosecutor to prove the guilt of the accused and an opportunity for the accused to prove his innocence.
While remitting the case back to the High Court, the top court noted that the man had been in jail for over nine years now and asked the High Court to take up the matter expeditiously.
"As the appellant convict was in jail for the past more than nine years, his family might be in dire straits. He may not be in a position to engage a lawyer of his choice. Probably, he may not be in a position to even understand what is said in this judgment.
"In such circumstances, the High Court may request a seasoned criminal side lawyer to appear on behalf of the appellant and assist the court," the bench said.