Orissa High Court orders de novo trial for murder accused who has undergone over 18 years of imprisonment [Read Judgment]

A murder accused, who had undergone over 18 years of imprisonment, was granted benefit of de novo trial on the ground that he was not given proper legal assistance (Habil Sindhu v. State of Odisha)..The Court added that the de novo trial should be completed by the trial court as early as possible, preferably within three months. .The Bench of Justices SK Mishra and Savitri Ratho found that there was material on record to show that the appellant, in this case, was not given proper legal assistance as enshrined under Article 39A of the Constitution in the true sense..The Court took note that on one occasion, the case in question was posted by the trial judge in the absence of the appellant's counsel. On this date, the trial court directed that the appellant be defended by a State Defence Counsel (SDC). The appellant's counsel informed the Court that the majority of the prosecution witnesses were examined after the SDC was so appointed on short notice. .The High Court proceeded to observe that while appointing the SDC, the Judge did not record whether: 1. The SDC was engaged from the shortlist from the District Judges' office. 2. Whether the SDC was competent to defend the appellant in a complex case of triple murder. 3. Coupled with this the SDC was not given adequate opportunity to prepare the case, the High Court found.."In our considered opinion, the appellant had no valid, proper and effective legal representation in the case. The learned trial Judge should have granted at least seven days time to the learned counsel appearing for the appellant to prepare the case. We are therefore of the opinion that this is a case where the accused has been denied a fair trial and it is violative of Article 39-A as well as Article 21 of the Constitution," the Court concluded..The Bench was dealing with an appeal moved by Habil Sindhu, who had been convicted under Sections 302 (punishment for murder) and 201 (causing disappearance of evidence of offence, or giving false information to screen offender) of the Indian Penal Code (IPC) by a trial court in 2005. He stood accused of murdering three persons. Given that the bodies were found with heads severed, witchcraft was also suspected in the case. .He had been in jail since 2003 (when he was arrested in this case), the High Court was told. The 2005 conviction was challenged in appeal by Sindhu through amicus curiae, Himansu Bhusan Das, on various grounds relating to appreciation of evidence. .What caught the High Court's attention, however, was the apparent violation of Sindhu's right to free legal services. In this regard, reliance was placed on the Supreme Court's ruling in Anokhilal v. State of Madhya Pradesh. .In addition to holding that the right to free legal aid is an essential ingredient of reasonable, fair and just procedure for a person accused of an offence, the Supreme Court, in Anokhilal's case, had also laid down guidelines for the appointment of State defence counsel/ amicus curiae to represent an accused..The State, through Additional Government Advocate MS Sahoo, contended that even if there was a violation of the appellant's right to legal representation, he should not be acquitted given the gruesome nature of the alleged crime. The appellant's counsel, however, sought the appellant's release given the long period of imprisonment undergone by him. .The High Court, in turn, acknowledged that there has been delay in disposing of the appeal. All the same, the delay cannot be attributed only to the judiciary, the Bench said, adding that there were certain factors which were beyond the Court's control which occasioned the delay. .Ultimately, taking a holistic view of the matter at hand, the Bench decided to remand the matter back to the trial court for a fresh/ de novo trial. The case was remanded for a fresh hearing by the Sessions Judge, Mayurbhanj, Baripada with a direction to dispose of the case as early as possible, preferably within a period of three months..[Read Judgment]