Supreme Court of India
MUNNA PANDEYversusSTATE OF BIHAR
- Citation
- 2023 INSC 793
- Decided
- 4 September 2023
- Disposal
- Disposed off
Holding
The Supreme Court set aside the High Court’s confirmation of conviction and death sentence, holding that the trial judge may examine police statements and that the High Court must independently scrutinise the evidence under s.367‑368 CrPC before confirming a death sentence.
Summary
The appellant Munna Pandey was convicted and sentenced to death for the rape and murder of a ten‑year‑old girl, based largely on circumstantial evidence and the testimony of witnesses whose statements to police were not properly confronted. The Supreme Court examined whether the High Court erred in confirming the conviction despite serious investigative lapses, including the failure to obtain a medical examination under s.53/53A CrPC and the non‑use of police statements under s.162 CrPC. It held that a trial judge may examine police records suo motu and that the court must actively question witnesses under s.165 Evidence Act to uncover contradictions. The Court also emphasized the High Court's duty, under s.367‑368 CrPC, to independently assess the evidence in death‑sentence confirmations and to direct further inquiry if needed. Consequently, the Supreme Court set aside the High Court’s judgment, remitted the matter for proper consideration of the death reference, and underscored the necessity of a free and fair trial.
Issues considered
- Whether the High Court erred in confirming the conviction and death sentence despite investigative lapses.
- Whether s.162 CrPC bars a trial judge from examining police statements suo motu.
- Whether the trial court complied with s.145 and s.165 Evidence Act in confronting witnesses with their prior statements.
- Whether the failure to conduct a medical examination under s.53/53A CrPC vitiates the prosecution case.
- Whether the High Court fulfilled its statutory duty under s.367‑368 CrPC in a death‑sentence confirmation reference.
Legislation cited
- Code of Criminal Procedure, 1973s. 162, s. 165, s. 172(2), s. 313, s. 366, s. 367, s. 368, s. 386, s. 391
- Criminal Procedure (Amendment) Act, 2005s. 53, s. 53A
- Indian Evidence Act, 1872s. 145, s. 161, s. 165
- Indian Penal Code, 1860s. 120B, s. 302, s. 34, s. 376
- Juvenile Justice Act, 2015
- Protection of Children from Sexual Offences Act, 2012s. 4
Subjects
death penaltyconvictioncircumstantial evidencefair trialSection 162 CrPCSection 165 Evidence Actmedical examinationPOCSO Acthigh court confirmationprocedural lapsesjudicial duty
Judgment
[2023] 11 S.C.R. 1005 : 2023 INSC 793
CASE DETAILS
MUNNA PANDEY
v.
STATE OF BIHAR
(Criminal Appeal Nos. 1271-1272 of 2018)
SEPTEMBER 04, 2023
[B.R. GAVAI, J.B. PARDIWALA AND
PRASHANT KUMAR MISHRA, JJ.]
HEADNOTES
Issue for consideration: Whether the High Court erred in confirming
the conviction and death sentence passed by trial court against appellant-
accused for offences punishable u/ss.302, 376, IPC and s.4, POCSO Act,
2012, despite serious lapses in the entire investigation.
Penal Code, 1860 – ss.302, 376 – Protection of Children from Sexual
Offences Act, 2012 – s.4 – Serious lapses in investigation, confirmation
of conviction and death sentence – Propriety:
Held: s.162, CrPC does not prevent a Judge from looking into the
record of the police investigation – Being a case of rape and murder of a 10
year old girl and as the evidence was not free from doubt, the Trial 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 – There is nothing in s.162, CrPC which prevents a Trial
Judge from looking into the papers of the chargesheet suo motu and himself
using the statement of a person examined by the police recorded therein for
the purpose of contradicting such person when he gives evidence in favour of
the State as a prosecution witness – The Judge may do this or he may make
over the recorded statement to the lawyer for the accused so that he may use
it for this purpose – Case of the witnesses before the police was that it was
co-accused who had come to the house of the victim on the fateful day and
had taken her to his house to watch TV – All the statements further reveal
that it was co-accused who was found locking the door when the witnesses
enquired with him about the whereabouts of the victim– However, neither
1005
1006 SUPREME COURT REPORTS [2023] 11 S.C.R.
the defence counsel nor the public prosecutor nor the presiding officer of the
Trial Court and 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 remained a mute spectator – It was the duty of the presiding
officer to put relevant questions to these witnesses in exercise of his powers
u/s.165, Evidence Act – Impugned judgment set aside – Matter remitted
back to the High Court for deciding the reference u/s.366, CrPC keeping
in mind the serious lapses on the part of the defence in not proving major
contradictions in the form of material omissions surfacing from the oral
evidence of the prosecution witnesses – Code of Criminal Procedure, 1973
– ss.162, 366 – Evidence Act, 1872 – s.165. [Paras 39, 40, 43, 47 and 73]
Code of Criminal Procedure, 1973 – s.162 – Proviso – ‘Purpose’
mentioned therein:
Held: s.162 says that no statement made by any person to a police
officer in the course of an investigation, whether it be recorded or not, shall
be used for the purpose save as provided in the first proviso to the Section
– The first proviso says that when any witness, whose statement has been
reduced into writing by the police in accordance with the provisions of
the CrPC, is called for the prosecution in inquiry or trial the accused with
the permission of the court may contradict the witnesses in the manner
provided by s.145, Evidence Act – The purpose mentioned in the proviso
is the purpose of contradicting the evidence given in favour of the State by
a prosecution witness in Court by the use of the previous statement made
by such witness to the police officer – Purpose is to discredit the evidence
given in favour of the prosecution by a witness for the State – The Section
prohibits the use of the statement for any other purpose than this – It does
not say that the statement can only be used at the request of the accused
– The limitation or restriction imposed in the first part of s.162 relates to
this purpose for which the statement may be used; it does not relate to the
procedure which may be adopted to effect this purpose – The proviso which
sets out the limited purpose also mentions the way in which an accused
person may contradict the witness with his previous statement made to the
Police, but it does not in any other way affect the power that lies in the Court
to look into documents or put questions to witnesses suo motu – Evidence
Act, 1872 – s.165. [Para 46]
MUNNA PANDEY v. STATE OF BIHAR 1007
Practice and Procedure – Criminal Law – Duty of Presiding Judge
– Evidence Act, 1872 – s.165:
Held: In many sessions cases when an advocate appointed by the
Court appears and particularly when a junior advocate not having much
experience of the procedure of the Court, has been appointed to conduct
the defence of an accused person, it is the duty of the Presiding Judge to
draw his attention to the statutory provisions of s.145, Evidence Act – No
Court should allow a witness to be contradicted by reference to the previous
statement in writing or reduced to writing unless the procedure set out in
s.145, Evidence Act has been followed – It is possible that if the attention of
the witness is drawn to these portions with reference to which it is proposed
to contradict him, he may be able to give a perfectly satisfactory explanation
and in that event the portion in the previous statement which would otherwise
be contradictory would no longer go to contradict or challenge the testimony
of the witness – In a case like the present one, where the evidence given in
Court implicates persons who not mentioned in the FIR or police statements,
it is always advisable and far more important for the Trial Judge to look into
the police papers in order to ascertain whether the persons implicated by
witnesses, at the trial had been implicated by them during the investigation.
[Paras 47 and 48]
Code of Criminal Procedure, 1973 – s.53(1), 53A – Medical
examination – Importance – Circumstantial evidence – Rape victim
dead:
Held: s.53(1) enables a police officer not below the rank of sub-
inspector to request a registered medical practitioner, to make such an
examination of the person arrested, as is reasonably necessary to ascertain
the facts which may afford such evidence, whenever a person is arrested on
a charge of committing an offence of such a nature that there are reasonable
grounds for believing that an examination of his person will afford evidence
as to the commission of an offence – By Amendment Act 25 of 2005, a new
Explanation was substituted u/s.53, in the place of the original Explanation
– Simultaneously with the substitution of a new Explanation u/s.53, Act
25 of 2005 also inserted a new provision i.e. s.53A – Medical examination
of an accused assumes great importance in cases where the victim of rape
is dead and the offence is sought to be established only by circumstantial
evidence – Penal Code, 1860 – ss.302, 376 – Code of Criminal Procedure
(Amendment) Act, 2005. [Paras 25-27 and 29]
1008 SUPREME COURT REPORTS [2023] 11 S.C.R.
Code of Criminal Procedure, 1973 – s.313 – Additional
circumstances relied upon, not put to the appellant – Impropriety:
Held: The further statement of the appellant-convict was recorded
u/s. 313 – It was shocking to see the manner in which the Trial Court recorded
the same – In all, four questions were put to the appellant to enable him to
explain the incriminating circumstances pointing towards his complicity in
the alleged crime – However, for holding the appellant guilty of the alleged
crime, the Trial Court looked into the additional circumstances none of
which were put to the appellant so that he could offer a proper explanation
to the same. [Para 32]
Evidence Act, 1872 – ss.145, 161 – Duty of defence counsel, public
prosecutor:
Held: It was the duty of the defence counsel to confront the witnesses
with their police statements so as to prove the contradictions in the form
of material omissions and bring them on record – The defence counsel had
no idea how to contradict a witness with his or her police statements in
accordance w/s.145, Evidence Act – Lapse on the part of public prosecutor
is also very unfortunate – The public prosecutor knew that the witnesses
were deposing something contrary to what they had stated before the police
in their statements recorded u/s.161 – It was his duty to bring to the notice
of the witnesses and confront them with the same even without declaring
them as hostile – If the witness was not confronted with that part of the
statement with which the defence wanted to contradict him, then the Court
cannot suo motu make use of statements to police not proved in compliance
w/s.145, Evidence Act – Therefore, it is of utmost importance to prove
all major contradictions in the form of material omissions in accordance
with the procedure as established u/s.145, Evidence Act and bring them on
record – It is the duty of the defence counsel to do so . [Paras 41 and 50]
Code of Criminal Procedure, 1973 – Chapter XXVIII- ss.366-
371; Chapter XXIX- ss.372-394 – Role and duty of High Court in
confirmation cases:
Held: Power to acquit the person can be exercised by the High Court
even without there being any substantive appeal on the part of the accused
challenging his conviction – To that extent, the proceedings under Chapter
XXVIII which deal with “submission of death sentences for confirmation”
MUNNA PANDEY v. STATE OF BIHAR 1009
is a proceeding in continuation of the trial – ss.367, 368 entitle the High
Court to direct further enquiry or to take additional evidence and the High
Court may, in a given case, even acquit the accused person – Scope of
the chapter is wider – Chapter XXIX deals with “Appeals” – s.391 also
entitles the appellate court to take further evidence or direct such further
evidence to be taken – s.386 then enumerates powers of the appellate court
which inter alia includes the power to “reverse the finding and sentence
and acquit or discharge the accused, or order him to be re-tried by a court
of competent jurisdiction subordinate to such appellate court or committed
for trial” – Powers of the appellate court are equally wide – The High Court
in the present case was exercising powers both u/Chapters XXVIII and
XXIX, CrPC – ss.367, 368 make it clear that the duty of the High Court, in
dealing with the reference, is not only to see whether the order passed by
the Sessions Judge is correct, but to examine the case for itself and even
direct a further enquiry or the taking of additional evidence if considered
desirable in order to ascertain the guilt or the innocence of the convicted
person. [Paras 58 and 59]
Code of Criminal Procedure, 1973 – ss.367, 368 and proviso thereto
– Duty of High Court u/s.367:
Held: Under the proviso to s.368, no order of confirmation is to be
made until the period allowed for preferring the appeal has expired, or, if
an appeal is presented within such period, until such appeal is disposed
of, so that, if an appeal is filed by a condemned prisoner, that appeal has
to be disposed of before any order is made in the reference confirming the
sentence of death – In disposing of such an appeal, however, it is necessary
that the High Court should keep in view its duty u/s.367 – It must examine
the appeal record for itself, arrive at a view whether a further enquiry
or taking of additional evidence is desirable or not, and then come to its
own conclusion on the entire material on record whether conviction of
the condemned prisoner is justified and the sentence of death should be
confirmed. [Para 59]
Criminal Law – Criminal justice system – Accusatorial/adversarial
system:
Held: For the dispensation of criminal justice, India follows the
accusatorial or adversarial system of common law – In the accusatorial or
1010 SUPREME COURT REPORTS [2023] 11 S.C.R.
adversarial system, the accused is presumed to be innocent; prosecution and
defence each put their case; judge acts as an impartial umpire and while
acting as a neutral umpire sees whether the prosecution has been able to
prove its case beyond reasonable doubt or not. [Para 66]
Constitution of India – Article 21 – Free and fair trial, a sine-qua-
non:
Held: Free and fair trial is sine-qua-non of Article 21 – 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 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 – A fair trial necessarily includes fair
and proper opportunity to the prosecutor to prove the guilt of the accused
and opportunity to the accused to prove his innocence. [Para 67]
Criminal Law – Criminal justice system – Role of a judge in
dispensation of justice – Discussed. [Para 53, 54, 68 and 70]
Committees – Malimath Committee on Judicial Reforms – Duty of
Courts to search for truth – Observations of the Committee – Discussed.
[Para 69]
LIST OF CITATIONS AND OTHER REFERENCES
Jumman v. State of Punjab AIR 1957 SC 469: Rama Shankar Singh
@ Ram Shankar Roy v. State of West Bengal AIR1962 SC 1239: [1962]
Suppl. SCR 49; Bhupendra Singh v. State of Punjab AIR 1968 SC 1438:
[1968] SCR 404; Chotkau v. State of Uttar Pradesh (2023) 6 SCC 742; Tara
Singh v. State AIR 1951 SC 441: [1951] SCR 729; V.K. Mishra v. State of
Uttarakhand, (2015) 9 SCC 588: [2015] 8 SCR 1; Raghunandan v. State of
U.P. (1974) 4 SCC 186: [1974] 3 SCR 92, Dandu Lakshmi Reddy v. State of
A.P. (1999) 7 SCC 69: [1999] 1 Suppl. SCR 535; State of Rajasthan v. Ani
@ Hanif and Ors. (1997) 6 SCC 162: [1997] 1 SCR 199; Ram Chander v.
State of Haryana (1981) 3 SCC 191: [1981] 3 SCR 12; Masalti v. State of
U.P. (1964) 8 SCR 133; Kunal Majumdar v. State of Rajasthan (2012) 9
SCC 320: [2012] 8 SCR 706 – relied on.
MUNNA PANDEY v. STATE OF BIHAR 1011
Sessions Judge, Nellore v. Intha Ramana Reddy 1972 Cri.L.J. 1485
– referred to.
Jones v. National Coal Board 1957 (2) All ER 155 (CA) – referred to.
Sarkar (1999, 15th pp. 2319 etc.); Phipson (Evidence, 1999, 15th Ed,
para 1.21) – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
1271-1272 of 2018.
From the Judgment and Order dated 10.04.2018 of the High Court
of Judicature at Patna in DR No.4 of 2017 and CRADB No. 358 of 2017.
Appearances:
Dr. Aditya Sondhi, Sr. Adv., Ms. Aishwarya Saranga, Ms. Meghana
Tm, Ms. Harini Raghupathi, Kabir Dixit, Advs. for the Appellant.
Samir Ali Khan, Pranjal Sharma, Advs. for the Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
J. B. PARDIWALA, J. :
“A fair trial is one in which the rules of evidence are honored, the
accused has competent counsel, and the judge enforces the proper court
room procedures - a trial in which every assumption can be challenged.”
─ Harry Browne
1. These appeals are at the instance of a convict accused sentenced to
death for the offence of rape and murder of a 10-year old girl named “X”
and are directed against a common judgment and order passed by the High
Court of Judicature at Patna dated 10.04.2018 in the Death Reference No.
4 of 2017 with Criminal Appeal (DB) No. 358 of 2017 by which the High
Court dismissed the Criminal Appeal filed by the appellant convict herein
and thereby confirmed the judgment of conviction and sentence of death
1012 SUPREME COURT REPORTS [2023] 11 S.C.R.
passed by the Additional Sessions Judge-I, Bhagalpur in the Sessions Trial
No. 581 of 2015 for the offence punishable under Sections 302 and 376 resply
of the Indian Penal Code (for short, ‘IPC’) and Section 4 of the Protection
of Children from Sexual Offences Act, 2012 (for short, ‘POCSO Act’).
2. Before we proceed to give a fair idea as regards the prosecution
case, it has to be mentioned that the High Court had before it not only the
appeal filed by the accused but also a reference made by the Sessions Court
for confirmation of the capital sentence under Section 366 of the Code of
Criminal Procedure, 1973 (CrPC). Time and again this Court has pointed
out that on a reference for confirmation of the sentence of death, the High
Court is under an obligation to proceed in accordance with the provisions
of Sections 367 and 368 resply of the CrPC. Under these Sections the High
Court must not only see whether the order passed by the Sessions Court
is correct but it is under an obligation to examine the entire evidence for
itself, apart from and independently of the Sessions Court’s appraisal and
assessment of that evidence. From the long line of decisions which have
taken this view it would be enough to refer to the decisions in Jumman v.
State of Punjab, AIR 1957 SC 469; Rama Shankar Singh @ Ram Shankar
Roy v. State of West Bengal, AIR 1962 SC 1239; and Bhupendra Singh v.
State of Punjab, AIR 1968 SC 1438.
FACTS OF THE CASE
3. The facts of the case as recorded by the High Court in its impugned
judgment are stated hereinbelow:-
“3. Short fact of the case is that on 01.06.2015 at about 12:45 PM,
fardbeyan of Kiran Devi (P.W.2) wife of Arvind Sah and mother of
the victim was recorded by Sub-Inspector of Police-cum-S.H.O. Smt.
Rita Kumari of Sabour Police Station. The fardbeyan was recorded
in the house of Nawal Kishore Ojha @ Fuchan Pandey. Nawal
Kishore Ojha @ Fuchan Pandey is the own brother of the appellant
and in the said house, there were two rooms and one room, from
where dead body was recovered, was in possession of the appellant.
In the fardbeyan, the informant/P.W.2 stated that on preceding date
i.e. 31.05.2015, she was in the house of her late sister Shakila Devi
in the village Jamunia Parbatta. On the same date at about 12:00
MUNNA PANDEY v. STATE OF BIHAR 1013
[J. B. PARDIWALA, J.]
noon, her elder daughter namely Priya Kumari (P.W.3) telephonically
informed her that her younger sister (victim) was missing. Thereafter,
she immediately moved for Sabour. After arrival in her house in
village Sabour, her elder daughter Priya informed her that the
victim had gone to watch television in the house of Munna Pandey
(appellant). When she did not return till 11:00 AM, only thereafter,
she (Priya) informed the informant. While the informant went to
the house of Munna Pandey (appellant) in search of her daughter,
she found that the house of Munna Pandey (appellant) was locked.
Thereafter, with some villagers, the informant vigorously searched
her daughter, but she (victim) could not be traced. When Munna
Pandey (appellant) was asked to open the lock, he told that key was
not with him. Thereafter, she telephoned Fuchan Pandey (brother of
appellant Munna Pandey), who at the relevant time was staying in
his in-laws’ house. On 01-06-2015, Nawal Kishore Ojha @ Fuchan
Pandey at about 12:00 noon came to his house and opened the lock
of his room. In the said room, Pritam Tiwary son of Dilip Tiwary,
resident of village Shobhapur, P.S. Rajmahal, District – Sahebganj
had concealed himself. The lock of the room was opened from the
outside. When lock of the room of Munna Pandey (appellant) was
opened, dead body of the daughter of the informant was found
beneath the bed. The informant claimed that Pritam Tiwary and
Munna Pandey (appellant) both after committing rape with her 11
years old daughter by way of throttling had killed her and the dead
body was concealed in his room. The fardbeyan was read over to the
informant and after finding it correct, she, in presence of Babloo Sao
(P.W.1), son of informant’s sister of village Jamunia, P.S. Parbatta,
Naugachia, put her signature.”
4. On the basis of the complaint (Fardbeyan) lodged by the mother
of the victim PW 2 – Kiran Devi, the police registered a formal First
Information Report (FIR) on the very same day i.e. on 01.06.2015 at 3.00
pm at the Sabour Police Station as Case No. 106 of 2015 for the offence
punishable under Sections 376(D), 302, 201 read with Section 34 of the
IPC and Section 4 of the POCSO Act against the appellant herein and co-
accused Pritam Tiwari (brother-in-law of the elder brother of the appellant
namely Naval Kishore Ojha @ Fuchan Pandey).
1014 SUPREME COURT REPORTS [2023] 11 S.C.R.
5. On conclusion of the investigation, charge sheet was filed against
the appellant herein and the co-accused named above. As the offence was
exclusively trialable by a Sessions Judge, the case stood committed by the
Magistrate to the Court of Sessions under the provisions of Section 209
of the CrPC and upon committal, the same came to be registered as the
Sessions Trial No. 581 of 2015 in the Court of the First Additional District
and Sessions Judge, Bhagalpur.
6. The Trial Court framed charge vide order dated 04.11.2015 against
the appellant and the co-accused for the offence punishable under Sections
376(2)(g), 302 read with Section 34, 120B of the IPC and Section 4 of the
POCSO Act.
7. After framing of the charge, the co-accused namely Pritam Tiwari
raised the plea of being a juvenile. In such circumstances, his case was
separated vide order dated 03.02.2016 passed by the Trial Court and was
referred to the Juvenile Justice Board, Bhagalpur. The Trial Court proceeded
only against the appellant convict herein.
8. In the course of the trial, the prosecution led the following oral
evidence:-
(a) PW 1 Babloo Saw is the cousin brother of the deceased and son
of sister of the First Informant at whose place, the informant had
gone on 31.05.2015. This witness proved his signature on the
fardbeyan, which was marked as Ext. 1 and he also proved the
signature of Kiran Devi/P.W.2 (informant) of the case, which
was marked as Ext. 1/1.
(b) PW 2 Kiran Devi is the informant and mother of the deceased.
(c) PW 3 Priya Kumari is the elder daughter of the informant and
also the elder sister of the deceased.
(d) PW 4 Dr. Sandeep Lal, who at the relevant time, was posted in
the Jawaharlal Nehru Medical College and Hospital, Bhagalpur
conducted the post-mortem examination on the dead body of the
deceased.
(e) PW 5 Rita Kumari is the investigating officer and she recorded
the fardbeyan of the informant.
MUNNA PANDEY v. STATE OF BIHAR 1015
[J. B. PARDIWALA, J.]
(f) PW 6 Vijay Prasad Sah is a co-villager and he deposed that in
his presence, the dead body was recovered from the room of the
appellant.
9. Upon conclusion of recording of the oral evidence, the further
statement of the appellant convict was recorded by the Trial Court under
Section 313 of the CrPC. The appellant convict stated as under:-
“I am innocent. I have been falsely implicated. I was not living in
the house from where the dead body was recovered. I was residing in
a rented house situated in Mali Tola. I executed a deed in favour of
my brother Fuchan Pandey relating to an parental house situated at
Thatheri Tola and my brother Fuchan Pandey was living in the house
from where the dead body was recovered.”
10. Upon appreciation of the oral and documentary evidence on record,
the Trial Court recorded a finding that the appellant herein was guilty of
the offence he was charged with. The Trial Court treated the case as one
falling under the category of “rarest of the rare cases” and sentenced the
appellant to death.
11. The appellant herein being aggrieved with the judgment and order
of conviction and capital sentence passed by the Trial Court went in appeal
before the High Court. The High Court dismissed the appeal filed by the
appellant convict and confirmed the capital sentence imposed by the Trial
Court in the Death Reference No. 4 of 2017.
12. In such circumstances referred to above, the appellant convict is
here before this Court with the present appeals.
SUBMISSIONS OF THE APPELLANT
13. Dr. Aditya Sondhi, the learned senior counsel appearing for the
appellant convict, made the following submissions:-
“1 . Case purely of circumstantial evidence
1.1 The case against the Appellant, Munna Pandey is based only on
the last seen evidence and the conduct of the Appellant and hence
entirely circumstantial in nature. It is a well established principle
settled by this Hon’ble Court that in cases of circumstantial evidence,
the circumstances against the accused ought to be conclusive in nature
1016 SUPREME COURT REPORTS [2023] 11 S.C.R.
and there must be a chain of evidence so complete as not to leave any
reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probability the act
must have been done by the accused.
2. Failure to conduct medical examination u/s 53A CrPC is fatal to
the case of the prosecution.
2.1 Medical examination of the accused u/s 53A of CrPC is required
in cases of rape. Even though the Appellant was taken to the hospital
for the treatment of his injuries incurred during the time of arrest, he
was not subjected to any such medical examination where his samples
were collected for the purpose of DNA examination.
2.2 In cases of rape where the victim is dead and the offence is sought
to be established only by circumstantial evidence, medical evidence
assumes great importance. The failure of the prosecution to subject
the appellant to medical examination is fatal to the prosecution’s
case. (Chotkau v State of Uttar Pradesh 2022 SCC Online SC 1313
para 81,82)
2.3 If no DNA examination is conducted and if no reasonable
explanation is provided by the prosecution for not conducting a DNA
examination, adverse consequences would fall on the prosecution.
Moreover, if reasonable grounds for believing that an examination of
the accused will not afford evidence as to the commission of an offence,
it is quite unlikely that a charge-sheet would even be filed against the
accused for committing an offence of rape. (Rajendra Prahladrao
Wasnik v State of Maharashtra (2019) 12 SCC 495 para 49-57;
Prakash Nishad @ Kewat v State of Maharashtra 2023 SCCOnline
SC 666 para 57,58.59)
3. Prosecution did not place on record the exculpatory evidence
against the Appellant
3.1 The underwear of the Appellant was seized by the police on
01.06.2023 at 11:45 pm [Ex 6 (Seizure memo)], and the underwear of
the deceased was seized on 01.06.2015 at 11:00 pm [Ex 6/1 (Seizure
memo)]. However, the prosecution failed to prove if they were sent to
the Forensic Science Laboratory for examination.
MUNNA PANDEY v. STATE OF BIHAR 1017
[J. B. PARDIWALA, J.]
3.2 As per the order dated 29.06.2015, a letter on behalf of the
officer in-charge of PS Sabour was filed before the Ld Trial Court
seeking permission to send the articles to FSL Patna for examination.
However PW5, Reeta Kumari, the IO in her cross examination
before the Trial Court on 24.10.2016 admitted that she followed the
instructions of her senior police officer and did not receive any FSL
report. [PW5 para 8]
3.3 Further the vaginal swab of the deceased collected at the time of
post-mortem was sent by PW 4, Dr Sandeep Lal to the pathology lab for
examination. [Ex 2 (Post- mortem report)]. However, the pathological
report which states that ‘spermatozoa not found’ was not produced by
the prosecution as evidence at the time of trial.
4. Last seen evidence not conclusively proved against the Appellant
4.1 All the witnesses in their 161 statement stated that the victim was
last seen with Pritam Tiwari. However, PW1, PW2 and PW3 in their
Court testimony, which was recorded 3 months after Pritam Tiwari
was declared a Juvenile by the Juvenile Justice Board [Ex A (order
of the JJB)] improved their statement and said that it was Munna
Pandey and not Pritam Tiwari. However, this was not corroborated
by the independent witness Vijay Sah (PW6). The said improvement
on the part of the interested witnesses could be motivated by the fact
that Pritam Tiwari (who was caught red handed) was now only going
to be subjected to a lenient punishment under the Juvenile Justice
Act, 2000 and therefore the Appellant alone remained accused in the
subject case.
4.2 There are material contradictions in PW3’s court testimony and
her 161 statement. In her 161 statement she states that Pritam Tiwari
came to her house at 09:00 am and took the victim along with him
to watch TV and after 2 hours she saw Pritam Tiwari locking the
grill of the verandah. Whereas in her Court testimony, she states that
Munna Pandey was last seen with the victim. PW3 was confronted
with this particular contradiction by the defense counsel during her
cross- examination but PW3 does not provide any reason for the said
contradiction.
1018 SUPREME COURT REPORTS [2023] 11 S.C.R.
4.3 PW2 in her Fardbeyan [Ex 1] which was recorded right after
the victim’s body was recovered does not mention anything about
the Appellant in the context of a last seen evidence but improves
her testimony in Court to state that the Appellant was last seen with
the victim. PW2 was confronted with this improvement in her cross
examination, where she merely stated that she had told that Munna
Pandey had spoken to her daughter PW3 and that she did not state
in her fardbeyan that PW3 saw Munna Pandey locking the door. This
Hon’ble Court has held that especially in cases involving heinous
crimes, where there is inadequate cross-examination by the defense
counsel, the Trial Courts cannot be a mute spectator and they have the
power and duty under Section 165 of the Evidence Act, 1872 to discover
relevant facts when witnesses are not properly cross-examined.(Rahul
v State of NCT of Delhi (2023) 1 SCC 83 para 42-45)
4.4 As per the case of the prosecution, on 31.05.2015 at 09:00 when the
Appellant came to the house of PW3 to take the victim, the following
persons were in the house - the victim, PW3 and Kushboo Devi (her
aunt). However Kushboo Devi, the aunt was not examined as a last
seen witness but only PW3 (a minor) was examined by the prosecution
to prove its case.
4.5 In cases where the child witness’s testimony regarding last seen
evidence is inconsistent and when the material witnesses are not
examined by the prosecution, the Court has rightly disbelieved the last
seen evidence. (Digamber Vaishnav v State of Chhatisgarh (2019) 4
SCC 522 para 40-43)
5. Conduct of the accused at the relevant time
5.1 Frequent quarrels used to take place between Naval Kishore
Ojha @ Fucchan Pandey and Munna Pandey and hence they have
been residing separately. Munna Pandey was residing separately in a
different house in Mali Tola. Fuchhan Pandey handed over the key to
his house to Pritam Tiwari and Pritam Tiwari was residing in the house
of Fucchan Pandey for the past 2 to 3 months. Further, Munna Pandey
was called from elsewhere by the villagers every time, indicating that
he did not reside in the said house.
MUNNA PANDEY v. STATE OF BIHAR 1019
[J. B. PARDIWALA, J.]
5.2 As per the spot map and the spot mahazar, the building consists
of an outer iron grill door, a verandah, 1 room in the north and 1 in
the south. The room in the north belongs to Fuchhan Pandey and the
room in the south belongs to Munna Pandey. Pritam was found inside
the room of Fucchan Pandey and the victim was found in the room
of Munna Pandey. The room of Munna Pandey also had 2 windows
without any iron grill but only an outer wooden panel which was open.
One window opened to the verandah and the other window opened
towards the main road. The TV was in the room of Fucchan Pandey
where Pritam was admittedly residing.
5.3 The lock of the outer iron grill was broken open by the villagers.
The room of Fuchhan Pandey, where Pritam Tiwari was present was
locked from inside. The door of Munna Pandey’s room was opened by
the keys brought by Fuchhan Pandey on 01.06.2015 [Ex 1].
5.4 As per the case of the prosecution, the door of Munna Pandey’s
room was opened by the villagers after they snatched the keys from
Munna Pandey although he claimed that he did not have the keys
to the house on the previous day. As per the prosecution, this raised
serious doubts regarding his conduct. It is pertinent to note that this
suspicious conduct is not corroborated by the independent witness
PW6. Further, the villagers Manoj, Anil and Murrai who allegedly
snatched the keys from Munna Pandey were not examined by the
prosecution. It is pertinent to note that Munna Pandey did not flee
from the village overnight or on the next day when the dead body of
the victim was recovered. Further this particular circumstance that the
Appellant refused to give the keys to the villagers and threatened them
with a case of dacoity was not put to him during his 313 statement.
This Hon’ble Court has repeatedly held that the circumstances not put
to the accused in his 313 examination cannot be relied upon.(Sharad
Birdichand Sarda v State of Maharashtra (1984) 4 SCC 116 para 145)
6. Alleged Confession of Pritam Tiwari implicating Munna Pandey
cannot be relied upon
6.1 As per the prosecution, right after Pritam Tiwari was found in the
house of Fucchan Pandey by the villagers; he confessed to his crime
and stated that he along with Munna Pandey committed the offence
1020 SUPREME COURT REPORTS [2023] 11 S.C.R.
against the deceased. However, the said confession was made after
he was beaten by the police officers and was made in the presence
of police officers. Due to the bar u/s 26 of the Evidence Act, the said
confession cannot be relied upon the Courts. Further this alleged
confession is not corroborated by the testimony of the independent
witness Vijay Sah (PW6). Pritam Tiwari was also not deposed as a
witness in this regard.
7. 313 examination of the Appellant was not conducted in a proper
manner
7.1 Many crucial circumstances were not put to the Appellant in his 313
examination, though were considered as incriminating for the purpose
of holding the appellant guilty of the offence. Those are as under:-
• The circumstance of PW3 seeing the Appellant lock the grill and
the door of his room
• The circumstance that the Appellant gave false information to PW3
that the victim had already left after watching TV
• The circumstance of the accused refusing to open the door as he
did not have the key
• The circumstance of the Appellant giving the keys to the villagers
after he was assaulted
• The circumstance of the alleged extra-judicial confession made by
the co-accused Pritam Tiwari implicating the Appellant
7.2 This Hon’ble Court has consistently held that the circumstances
not put to the Appellant cannot be relied upon to convict an accused
8. Flaws in the judgment of the Trial Court and the High Court
8.1 The Trial Court in its judgment makes only a brief discussion of
the evidence and erroneously records that Pritam Tiwari and Munna
Pandey were found inside the house.
8.2 The High of Judicature at Patna, in the impugned judgment [at para
9]; observes that it is prima facie satisfied that the Trial Court has not
committed any error in both convicting the Appellant and sentencing
him to death. In its said prima facie opinion on the matter it heavily
MUNNA PANDEY v. STATE OF BIHAR 1021
[J. B. PARDIWALA, J.]
relies on the deposition of interested witnesses PW1, PW2 and PW3 all
of whom improved their versions. The High Court has disregarded the
evidence of the independent witness and also the absence of material
evidence, compliance with section 53A requirements, the absence of
FSL report and pathological report. Hence the said judgment suffers
from perversity and is contrary to the law
9. Mitigation
9.1 Without prejudice to the above submissions on merits, the Courts
below have incorrectly sentenced the Appellant to undergo the sentence
of death.
9.2 The Appellant has filed a mitigation report along with the affidavits
of the family members and the villagers before this Hon’ble Court vide
IA No 172211 of 2022. The following are the mitigating circumstances
of the Appellant:
(i) No criminal antecedents;
(ii) Satisfactory jail conduct as certified by the Superintendent of
Shahid Jubba Sahni Central Jail, Bhagalpur;
(iii) Family impact - since his arrest, his family including his wife
Sangeeta and his 2 sons - Krishna (18 years at the time of
incident) and Balram (12 years at the time of incident) were
ostracized from the village and they have been residing with
Sangeeta’s parents in village Panchkathiya, Bihar
(iv) Continued family ties
(v) Strong community links - Munna Pandey’s wife Sangeeta was
elected as the ward councilor in 2010. As per the affidavit of
Mohd. Aktar @ Pairu Miyan (resident of village Sabour) the
Appellant worked actively for the community alongside his wife.
He was considered resourceful and many villagers approached
him with their problems in the village.
(vi) Age of the Appellant - he is currently 56 years old
(vii) Strong probability of reformation”
(Emphasis supplied)
1022 SUPREME COURT REPORTS [2023] 11 S.C.R.
14. In such circumstances, referred to above, the learned counsel prayed
that there being merit in his appeals, the same be allowed and the judgment
and order of conviction and capital sentence be set aside and the appellant
may be acquitted of all the charges.
SUBMISSIONS ON BEHALF OF THE PROSECUTION
15. On the other hand, these appeals were vehemently opposed by Mr.
Samir Ali Khan, the learned counsel appearing on behalf of the State. He
submitted that no error, not to speak of any error of law, could be said to
have been committed by the Courts below in holding the appellant guilty
of the offence charged with and treating the case to be one falling under the
category of “rarest of the rare cases”.
16. The learned counsel laid much stress on the fact that it was the
appellant who visited the house of the victim at 9 o’clock in the morning of
31.05.2015 and lured the victim to come to his house to watch TV. It was
argued that all the witnesses have deposed that the victim went to the house
of the appellant in the morning on 31.05.2015 to watch TV and thereafter
she went missing. He submitted that the sister of the victim namely Priya
Kumari (PW 3) immediately informed her mother Kiran Devi (PW 2) who
at the relevant point of time was at the house of her sister at a different
village. No sooner the mother of the victim came to know that her daughter
was missing, then she immediately rushed back to her house and started
enquiring as regards the whereabouts of her minor daughter. It was argued
that the victim could be said to have been last seen with the appellant. It was
also argued that when the house was opened, the dead body of the victim
was recovered beneath a cot and the room from where the dead body was
recovered was of the ownership of the appellant. He submitted that it was
for the appellant to explain, how the dead body of the victim was recovered
from the room of his house over which he had full control. It was also argued
that the PW 3 Priya Kumari in her deposition stated that she had seen the
appellant locking the door of his room. This is suggestive of the fact that the
keys of the room were with the appellant. The learned counsel submitted
that the facts established are consistent only with the hypothesis of the guilt
of the appellant convict and are of a conclusive nature and tendency. He
submitted that the chain of evidence is so complete that it does not leave
MUNNA PANDEY v. STATE OF BIHAR 1023
[J. B. PARDIWALA, J.]
any reasonable ground for the conclusion consistent with the innocence of
the accused.
17. In such circumstances referred to above, the learned counsel prayed
that there being no merit in these appeals, those may be dismissed.
ANALYSIS
18. Having heard the learned counsel appearing for the parties and
having gone through the materials on record, the only question that falls for
our consideration is whether the High Court committed any error in passing
the impugned judgment?
19. The case on hand is one of a very gruesome rape and murder of
a 10-year old girl. It is the case of the prosecution that on the fateful day
the victim had gone to the house of the appellant to watch TV. According
to the prosecution, it is the appellant who came to the house of the victim
and persuaded her to come at his house to watch TV. The elder sister of the
victim, PW 3 Priya Kumari was at home when her younger sister left for
the house of the appellant to watch TV. When the younger sister did not
come back to her house, Priya Kumari started searching for her and as her
efforts failed to know the whereabouts of her younger sister, she immediately
informed her mother Kiran Devi (the first informant). At the relevant time,
Kiran Devi was at the house of her elder sister namely Shakila Devi at
Jamunia Parbatta. The PW1 Babloo Saw is the son of Shakila Devi. The
PW 2 Kiran Devi happens to be the mousi of PW 1 Babloo Saw. It is the
case of the prosecution that while Kiran Devi was at the house of her elder
sister Shakila Devi, she was informed by Priya Kumari on telephone that
the victim had gone to the house of the appellant in the morning to watch
TV and thereafter she went missing. It was PW 1 Babloo Saw who brought
Kiran Devi on his motorcycle back to her village i.e. her house.
20. We shall now look into the findings recorded by the High Court in
its impugned judgment. To put it in other words, the circumstances relied
upon by the High Court and the line of reasoning to hold the appellant herein
guilty of the alleged crime is as follows:-
“9 . … To start with, it would be firstly necessary to examine the first
hand information, which has come from the mouth of elder daughter
of the informant i.e. P.W.3 namely Priya Kumari. She was the main
1024 SUPREME COURT REPORTS [2023] 11 S.C.R.
witness, who had seen that appellant had persuaded and enticed the
victim to go with him on the pretext of witnessing T.V. serial.
10. … Munna Pandey (appellant) carried the victim, at that time, it
was about 9:00 AM (morning). After preparing food, she went to call
the victim to the house of Munna Pandey (appellant), then she saw that
Munna Pandey (appellant) was putting lock on his door. She saw that
Munna Pandey (appellant), after putting lock on his room, was coming
out. When she reached near the gate, till that time, Munna Pandey
(appellant), after putting lock on gate also, was trying to move, then
she asked Munna Pandey as to where is the victim, Munna Pandey
(appellant) replied that she, after witnessing T.V., had already gone.
P.W.3 thereafter returned back to her house and tried to search nearby.
When she did not find the victim then she made telephone call to her
mother (P.W.2, Kiran Devi) and informed her. Her mother on the same
date came back with her (Priya) cousin brother Babloo (P.W.1). Again,
this witness narrated everything to her mother. Thereafter, she, her
mother, aunt and cousin brother Babloo, all jointly started to search,
but the victim was not traced, then they went to the house of Munna
Pandey (appellant), where it was noticed that there was lock on the
room of Munna Pandey (appellant). Outer gate was also locked.
Thereafter, she inquired from other villagers, on which, villagers called
Munna Pandey, then he came. The appellant was inquired by villagers
and her mother (P.W.2) also regarding the victim. The appellant said
that he was not having the key of the room. After noticing this fact, the
villagers said that if he was not having key, they will break the lock. On
which, the appellant threatened them for implicating in dacoity case,
if lock is broken. Munna Pandey (appellant) also stated that Pritam
(co-accused) was also not being located and he said that it appears
that he had gone somewhere with the victim. On the strength of such
statement of Munna Pandey (appellant), they started to search Pritam
also, however; he could not be traced and thereafter, they returned
back to their house and again they went to the house of Munna Pandey
(appellant), where she noticed that some light was coming from inside
the house of Fuchan Pandey. Thereafter, the villagers raised some
suspicion, as if, in the room, there was someone. Munna Pandey
(appellant) was again asked to break the lock, then he said that key
MUNNA PANDEY v. STATE OF BIHAR 1025
[J. B. PARDIWALA, J.]
was lying with Fuchan Pandey. Villagers thereafter telephoned Fuchan,
at that very time, he was in his in-laws’ house. Fuchan over telephone
informed that in the morning, he would come. Since by 8:00 AM,
Fuchan did not arrive, P.W.3 with her mother went to Sabour Police
Station, however; in the meanwhile, Fuchan reached to his house.
Villagers by using force also pushed Munna and carried him to the
said place. Thereafter, police also arrived there. Lock of outer gate
was broken. Thereafter, the key of the room was provided by Munna
Pandey (appellant). From the room of Fuchan, Pritam Tiwary came
out. In presence of the Police and villagers, Pritam was inquired as
to where was the victim, then he explained that victim was in the room
of Munna Pandey (appellant). Pritam also said that he and Munna
Pandey both had jointly raped the victim and thereafter, killed her.
Dead body of the victim was found beneath the bed of Munna Pandey
(appellant). Her body was undressed. Her urinal portion was swollen
and blood had come out. She had also dispersed her waste (potty)
and it was also swollen. Police carried the dead body. She claimed
to identify both accused persons, which includes appellant. In cross-
examination in paragraph – 2, she stated that her father was living
in Gujarat. She further stated that Fuchan Pandey is also known as
Nawal Kishore Ojha. In paragraph – 7 of her cross-examination, she
claimed that she had seen television in the room, where there was a
bed, almirah including fan. In paragraph – 8, she further stated that she
was visiting the said room and stated that Munna Pandey (appellant)
was her neighbour. In paragraph – 9, she explained that in search of
the victim, they had gone to several places including block, chowk,
station Sabour etc. In paragraph 12, she stated that Fuchan Pandey
and Munna Pandey (appellant) were the full brothers and both brothers
were having one room each in their share. She stated in paragraph
12 that Munna Pandey (appellant) was virtually residing somewhere
else and usually he was visiting to his room (place of occurrence).
She further stated that she was not knowing about the rented house
of Munna Pandey (appellant). Again, in paragraph 12 itself, she
deposed that earlier there was no complaint against Munna Pandey
(appellant). It is necessary to indicate that there was no complaint
against the appellant prior to the occurrence, which suggests that it
1026 SUPREME COURT REPORTS [2023] 11 S.C.R.
was not a case of false implication due to any old animosity. Of course,
her attention to her previous statement was drawn in paragraph 13 of
her cross-examination, but while the investigating officer was being
examined, no contradiction was drawn and as such, there is no need
to take note of such so called minor inconsistencies. She denied the
suggestion that she had given false evidence and falsely implicated
the appellant. On examination of entire evidence of P.W.3, it is evident
that though this witness was cross-examined at length, nothing could
be extracted to create any doubt on her evidence.
11. … Munna Pandey (appellant) was also called by villagers. When
the villagers asked Fuchan to open lock, Fuchan replied that he was
not having key. Villagers thereafter started to assault Munna Pandey
and asked him to break the lock. When villagers broke one of the lock,
then Munna Pandey (appellant) took out the key and from that key,
lock of Fuchan’s door was opened, however; the room was closed
from inside. When the door was pushed, it was opened by Pritam and
he concealed himself. All villagers entered into the house. Police also
arrived. Pritam was apprehended. When Pritam was being assaulted,
police had arrived there. Lock of room of Munna was also opened
by the villagers. From the room of Munna Pandey (appellant), dead
body of the victim was recovered. Age of victim was 11 years old and
dead body was kept beneath the bed and police took out the dead
body from beneath the bed. The informant started crying. She further
stated that the cloth of her daughter from lower portion was removed.
She noticed that urinal portion of her daughter was ruptured and she
also noticed potty there. She stated that the anus was also ruptured.
The face was swollen and on cheek also, there was sign of injury.
Villagers thereafter started to assault Munna, Pritam and Fuchan.
Pritam, in presence of the Police, stated that he and Munna Pandey
both jointly had committed the crime. This witness stated that her
fardbeyan was recorded by the police at the place of occurrence itself
and she identified her signature as well as signature of Babloo (P.W.1)
on the fardbeyan. Signature was identified as Ext. 1/1. she claimed to
identify Pritam and Munna Pandey (appellant). At the time of cross-
examination, it was noticed by the Trial Judge that this witness was
very much nervous and also she was repeatedly weeping and this was
MUNNA PANDEY v. STATE OF BIHAR 1027
[J. B. PARDIWALA, J.]
the reason that cross-examination on the date i.e. 21.06.2016 was
deferred. This reflects regarding the agony suffered by the mother of the
victim. In paragraph 8 of her cross-examination, she stated that Priya
(P.W.3) had informed on telephone that the victim was traceless. She
further deposed in paragraph - 8 of her cross-examination that family
members of the informant were in visiting term with Munna Pandey
and he was also visiting to the house of the informant. In paragraph
-10 of her cross-examination, she stated that she was not knowing
anything about the criminal nature of the appellant. She stated that
the appellant was her neighbour and this was the reason regarding
their conversance. In paragraph - 11 of her cross-examination, she
stated that the room, in which, Pritam was present was opened. The
lock of room of Munna Pandey (appellant) was opened. Munna Pandey
(appellant) and Fuchan Pandey were residing separately. One room
was of Fuchan and one room was of Munna Pandey (appellant). She
clarified in paragraph - 12 that 10-15 days prior to the occurrence,
Fuchan had already gone to his in-laws’ house situated at village
Shobhapur. In paragraph – 17 of her cross-examination, she reiterated
that dead body of her victim daughter was found in the room of Munna
Pandey, whereas, Pritam Tiwary had concealed himself in the room
of Fuchan. In paragraph 19 and 20 of her cross-examination, P.W.2
denied the suggestion that lock of two rooms were opened by Fuchan
Pandey and denied the suggestion that lock of the room of the Munna
Pandey (appellant) was also opened by Fuchan Pandey. In paragraph
- 23 of her cross-examination, she said that she may not say exact
date of recording fardbeyan, however; she said that she can say the
day on which it was recorded. She stated that Rita Madam i.e. P.W.5
had recorded fardbeyan and it was read over to her, however; she
was not recollecting exactly what was the time. In paragraph 26 and
27 of her cross-examination, she stated that after arrival of Fuchan,
when he denied regarding possession of the key, then the villagers
started assaulting Munna Pandey (appellant). She stated that Pritam
was apprehended by Vijay (P.W.6) Babloo (P.W.1) and other villagers
and they also slapped Pritam. Again in paragraph - 28 of her cross-
examination, she stated that the dead body of her daughter was found
in the house of Munna Pandey (appellant). On examination of her
1028 SUPREME COURT REPORTS [2023] 11 S.C.R.
entire evidence, including cross-examination, it is evident that every
fact relating to the occurrence was reiterated in the cross examination,
but nothing could be doubted on her evidence.
××× ××× ×××
16. On examination of entire evidence, it is established that the learned
Trial Judge has rightly held the appellant guilty for commission of
offence under Sections 302 and 376 of the Indian Penal Code. The
learned Trial Judge, after convicting the appellant by its judgment
dated 02.02.2017, deferred the date of sentence and after reasonable
time, on 23.02.2017, the learned Trial Judge, after hearing both the
parties and balancing the aggravating and mitigating circumstances,
had come to the conclusion that it was a fit case for imposing death
sentence and thereafter, death sentence was imposed and it was referred
to this Court under Section 366 of the Cr.P.C. for its confirmation.
17. The evidence of P.W.3 is very much specific that on the date of
occurrence in the morning, this appellant had reached the house of the
informant, whereas, at that very time, P.W.3 was preparing food. In her
presence, this appellant asked, rather lured the victim to accompany
him for witnessing T.V. programme inside his house. At first instance,
P.W.3, elder sister of the victim, asked that she can go only after taking
meal, but that too was prevented by the appellant and he (appellant)
insisted and only thereafter, the victim, who was aged about 11 years,
had gone with the appellant in the garb of witnessing T.V. programme
in his house. In the evidence of P.W.2 informant/mother of the victim,
this fact has come that appellant was neighbour of the informant and
they were on visiting term. Meaning thereby that at the time, when the
appellant had called the victim, there was nothing in the mind of the
elder sister that her younger sister aged about 11 years will be raped
by the appellant, who obviously on the date of occurrence was neither
young nor very old. From the judgment of conviction and sentence, it
appears that his (appellant) age was assessed as 50 years. Meaning
thereby that beyond stretch of imagination, the elder sister was not
having any apprehension that her minor sister can be raped by a
person, who was neighbour and aged about approaching 50 years.
This was the reason that victim was allowed to move with the appellant.
MUNNA PANDEY v. STATE OF BIHAR 1029
[J. B. PARDIWALA, J.]
The victim, who was aged about 11 years, was also oblivious of the
fact that as to what was occurring in the mind of the appellant. After
she was carried to the room and within few hours, when P.W.3 (elder
sister of the victim) went to the house of the appellant, she noticed that
this appellant after locking the door was coming out. This was not the
end, even on inquiry, this appellant gave false declaration that victim
had already left after witnessing T.V. programme. Again the criminal
mind of the appellant was operating and this was the reason that even
though, he had already committed rape and murder of 11 years old girl
and concealed the dead body inside his room, he gave false information
to the elder sister of the victim (P.W.3). Since the victim could not be
traced by P.W.3 (Priya), the P.W.3 who was aged about 15-16 years
old, and this was the reason that she was not in a position to take any
further decision and she immediately ranged her mother (informant),
who had gone to village Jamunia, which was about 22 km. away from
the village Sabour. She informed her mother regarding missing of the
victim and she also explained regarding other circumstances, which
were sufficient to raise suspicion on the appellant. Thereafter, the
informant from Jamunia came on a motorcycle with son of her late
sister P.W.1 (Babloo Saw) and all of them again went to the house of
the appellant and this time they noticed that house as well as outer gate
of the appellant was locked and there was none, then the search was
made for the victim. Subsequently, villagers called the appellant, who
disclosed that he was not having the key and he pretended, as if, key was
left with his brother Fuchan Pandey, who was away and staying in his
in-laws house. This time again this appellant gave false information.
By way of searching, day time had come to end of the day and in the
evening, informant side and villagers noticed some light coming from
the house of the appellant, then suspicion got strengthened. Thereafter,
again the villagers called the appellant for opening the door. On his
denial, the villagers told that they will break the lock of the door, in that
event, this appellant threatened the villagers that if lock is broken, he
will file a case of dacoity against them. All those things depict about
the criminal mind of the appellant. Only in the next morning, when
his brother Fuchan arrived, who was telephonically asked to come,
and he disclosed that he was not having the key, the villagers started
1030 SUPREME COURT REPORTS [2023] 11 S.C.R.
to assault the appellant and one lock was broken and only thereafter,
this appellant took out the key. Ofcourse subsequently, the room, which
was said to be in possession of the appellant, was opened and beneath
the bed of the appellant, dead body in ruptured condition of the victim
was found. Everything has already been discussed hereinabove, as was
explained by the informant/P.W.2, P.W.3/Priya and P.W.1/Babloo.”
(Emphasis supplied)
21. Thus, all throughout, the High Court proceeded on the footing
that it was the appellant convict who came to the house of the victim in the
morning of 31.05.2015 and lured her to come to his house to watch TV.
The High Court took the view that since the dead body of the victim was
recovered from the room owned by the appellant and he was seen by the
PW 3 Priya Kumari locking the door attached to his house, it could be none
other than the appellant who could be said to have committed the crime.
The High Court completely forgot that there was a co-accused also namely
Pritam Tiwari in the picture. Pritam Tiwari being a juvenile was tried in
accordance with the provisions of the Juvenile Justice Act, 2015 and was
held guilty and sentenced to three years imprisonment.
FSL REPORT NOT OBTAINED:
22. We noticed few very serious lapses in the entire investigation and,
more particularly, the oral evidence of the investigating officer PW 5 Rita
Kumari disturbed us a lot. The investigating officer in her cross examination
deposed that in accordance with the order dated 29.06.2015 a letter on behalf
of the officer-in-charge of the Police Station, Sabour, was filed before the
Trial Court seeking permission to send the muddamal articles to the Forensic
Science Laboratory (FSL), Patna for examination. However, the PW 5
Rita Kumari in her cross examination before the Trial Court admitted that
following the instructions of her senior officers, she did not take any steps
to procure FSL report. Who are these senior officers of PW 5 and why they
instructed the PW 5 not to procure the FSL report should have been a subject
matter of inquiry by both, the State as well as the trial court.
23. The aforesaid lapse is just a 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.
MUNNA PANDEY v. STATE OF BIHAR 1031
[J. B. PARDIWALA, J.]
FAILURE TO CONDUCT MEDICAL EXAMINATION
24. One another serious flaw in the present case on the part of the
investigating officer that has come to our notice is the failure to subject the
appellant to 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.
25. Section 53(1) of the CrPC enables a police officer not below the
rank of sub-inspector to request a registered medical practitioner, to make
such an examination of the person arrested, as is reasonably necessary to
ascertain the facts which may afford such evidence, whenever a person is
arrested on a charge of committing an offence of such a nature that there
are reasonable grounds for believing that an examination of his person will
afford evidence as to the commission of an offence. Section 53(1) reads as
follows:-
“Section 53. Examination of accused by medical practitioner at the
request of police officer.—(1) When a person is arrested on a charge
of committing an offence of such a nature and alleged to have been
committed under such circumstances that there are reasonable grounds
for believing that an examination of his person will afford evidence
as to the commission of an offence, it shall be lawful for a registered
medical practitioner, acting at the request of a police officer not below
the rank of sub-inspector, and for any person acting in good faith in
his aid and under his direction, to make such an examination of the
person arrested as is reasonably necessary in order to ascertain the
facts which may afford such evidence, and to use such force as is
reasonably necessary for that purpose.”
26. By Act 25 of 2005, a new Explanation was substituted under
Section 53, in the place of the original Explanation. The Explanation so
substituted under Section 53 by Act 25 of 2005 reads as follows:-
“Explanation.—In this section and in Sections 53A and 54—
(a) “examination” shall include the examination of blood, blood
stains, semen, swabs in case of sexual offences, sputum and sweat, hair
samples and finger nail clippings by the use of modern and scientific
techniques including DNA profiling and such other tests which the
registered medical practitioner thinks necessary in a particular case;
1032 SUPREME COURT REPORTS [2023] 11 S.C.R.
(b) “registered medical practitioner” means a medical practitioner
who possess any medical qualification as defined in clause (h) of
Section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and
whose name has been entered in a State Medical Register.”
27. Simultaneously with the substitution of a new Explanation under
Section 53, Act 25 of 2005 also inserted a new provision i.e. Section 53A.
Section 53A reads as follows:-
“Section 53A. Examination of person accused of rape by medical
practitioner.—(1) When a person is arrested on a charge of committing
an offence of rape or an attempt to commit rape and there are
reasonable grounds for believing that an examination of his person
will afford evidence as to the commission of such offence, it shall be
lawful for a registered medical practitioner employed in a hospital
run by the Government or by a local authority and in the absence of
such a practitioner within the radius of sixteen kilometers from the
place where the offence has been committed by any other registered
medical practitioner acting at the request of a police officer not below
the rank of a Sub-Inspector, and for any person acting in good faith
in his aid and under his direction, to make such an examination of
the arrested person and to use such force as is reasonably necessary
for that purpose.
(2) The registered medical practitioner conducting such examination
shall, without delay, examine such person and prepare a report of his
examination giving the following particulars, namely—
(i) the name and address of the accused and of the person by
whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the
accused for DNA profiling, and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion
arrived at.
MUNNA PANDEY v. STATE OF BIHAR 1033
[J. B. PARDIWALA, J.]
(4) The exact time of commencement and completion of the examination
shall also be noted in the report.
(5) The registered medical practitioner shall, without delay, forward
the report to the investigating officer, who shall forward it to the
Magistrate referred to in Section 173 as part of the documents referred
to in clause (a) of sub-section (5) of that section.”
28. A three-Judge Bench of this Court in Chotkau v. State of Uttar
Pradesh, (2023) 6 SCC 742, had the occasion to consider Sections 53,
53A and 164 of the CrPC in details. This Court observed in para 80 to 83
as under:-
“80. After saying that Section 53-A is not mandatory, this Court found
in para 54 of the said decision that the failure of the prosecution
to produce DNA evidence, warranted an adverse inference to be
drawn. Para 54 reads as follows : (Rajendra Pralhadrao Wasnik case
[Rajendra Pralhadrao Wasnik v. State of Maharashtra, (2019) 12 SCC
460 : (2019) 4 SCC (Cri) 420], SCC p. 485)
“54. For the prosecution to decline to produce DNA evidence
would be a little unfortunate particularly when the facility of DNA
profiling is available in the country. The prosecution would be
well advised to take advantage of this, particularly in view of the
provisions of Section 53-A and Section 164-ACrPC. We are not
going to the extent of suggesting that if there is no DNA profiling,
the prosecution case cannot be proved but we are certainly of
the view that where DNA profiling has not been done or it is held
back from the trial court, an adverse consequence would follow
for the prosecution.”
81. It is necessary at this stage to note that by the very same
Amendment Act 25 of 2005, by which Section 53-A was inserted,
Section 164-A was also inserted in the Code. While Section 53-A
enables the medical examination of the person accused of rape,
Section 164-A enables medical examination of the victim of rape. Both
these provisions are somewhat similar and can be said approximately
to be a mirror image of each other. But there are three distinguishing
features. They are:
1034 SUPREME COURT REPORTS [2023] 11 S.C.R.
81.1 Section 164-A requires the prior consent of the woman
who is the victim of rape. Alternatively, the consent of a person
competent to give such consent on her behalf should have been
obtained before subjecting the victim to medical examination.
Section 53-A does not speak about any such consent.
81.2 Section 164-A requires the report of the medical practitioner
to contain among other things, the general mental condition of
the woman. This is absent in Section 53-A.
81.3 Under Section 164-A(1), the medical examination by
a registered medical practitioner is mandatory when, “it is
proposed to get the person of the woman examined by a medical
expert” during the course of investigation. This is borne out by
the use of the words, “such examination shall be conducted”.
In contrast, Section 53-A(1) merely makes it lawful for a
registered medical practitioner to make an examination of the
arrested person if “there are reasonable grounds for believing
that an examination of his person will afford evidence as to the
commission of such offence”.
82. In cases where the victim of rape is alive and is in a position
to testify in court, it may be possible for the prosecution to take a
chance by not medically examining the accused. But in cases where
the victim is dead and the offence is sought to be established only by
circumstantial evidence, medical evidence assumes great importance.
The failure of the prosecution to produce such evidence, despite
there being no obstacle from the accused or anyone, will certainly
create a gaping hole in the case of the prosecution and give rise to
a serious doubt on the case of the prosecution. We do not wish to go
into the question whether Section 53-A is mandatory or not. Section
53-A enables the prosecution to obtain a significant piece of evidence
to prove the charge. The failure of the prosecution in this case to
subject the appellant to medical examination is certainly fatal to the
prosecution case especially when the ocular evidence is found to be
not trustworthy.
83. Their failure to obtain the report of the Forensic Science Laboratory
on the blood/semen stain on the salwar worn by the victim, compounds
the failure of the prosecution.”
MUNNA PANDEY v. STATE OF BIHAR 1035
[J. B. PARDIWALA, J.]
29. Thus, medical examination of an accused assumes great importance
in cases where the victim of rape is dead and the offence is sought to be
established only by circumstantial evidence.
FURTHER STATEMENT UNDER SECTION 313 CrPC
30.. The further statement of the appellant convict was recorded
under Section 313 CrPC. We were shocked to see the manner in which the
Trial Court recorded the further statement of the appellant convict under
Section 313 CrPC. In all, four questions were put to the appellant convict
to enable him to explain the incriminating circumstances pointing towards
his complicity in the alleged crime. The questions are as under:-
“(1) Question :- Have you heard the evidence of the witnesses?
Answer :- Yes
(2) Question :- There is evidence against you that on 31.5.15, you
took away X to your house by calling her, on pretext of watching TV.
What have you got to say?
Answer :- No Sir.
(3) Question :- There is also evidence against you that you escaped
after locking your house and later on the lock was broken and then
the dead body of X was recovered lying under the wooden cot. What
have you got to say in this regard?
Answer :- No Sir.
(4) Question :- It has also come in evidence against you that you
in association with Preetam committed murder of X after raping her.
What have you got to say?
Answer :- No sir, it is wrong.”
31. However, for the purpose of holding the appellant herein guilty
of the alleged crime, the Trial Court looked into the following additional
circumstances:-
(a) The circumstance of PW 3 seeing the Appellant lock the grill
and the door of his room.
(b) The circumstance that the Appellant gave false information to
PW 3 that the victim had already left after watching TV.
1036 SUPREME COURT REPORTS [2023] 11 S.C.R.
(c) The circumstance of the accused refusing to open the door as he
did not have the key.
(d) The circumstance of the Appellant giving the keys to the villagers
after he was assaulted.
(e) The circumstance of the alleged extra-judicial confession made
by the co-accused Pritam Tiwari implicating the Appellant.
32. Indisputably, none of the aforesaid circumstances relied upon by
the Trial Court were put to the appellant convict so that he could offer a
proper explanation to the same.
33. Having regard to the fact that an innocent girl of 10 years was lured,
raped and brutally murdered, we looked into the entire record very closely.
Our mind got clouded with suspicion. Ultimately, we noticed something
very shocking. The shocking aspect, we shall discuss about hereinafter,
if would have gone unnoticed at our end too, then it would have led to a
serious miscarriage of justice.
34. We thought fit to call for the papers of the charge sheet and look into
the FIR lodged by PW 2 Kiran Devi; the further statement of PW 2 recorded
under Section 161 of the CrPC in furtherance of the FIR lodged by her and
the police statements of PW 1 Babloo Saw, and PW 3 Priya Kumari, the elder
sister of the victim and elder daughter of PW 2 (first informant). Reading
the FIR and the police statements of the aforesaid witnesses left us aghast.
35. We first start with the FIR lodged by PW 2 which reads thus:-
“Fardbayan of Kiran Devi aged about 40 years w/o Arvind Sah, at
Thateri Tola, Police Station- Sabour, District Bhagalpur recorded by
S.I. cum S.H.O. Rita Kumari Sabour P.S. in house of Naval Kishore
Ojha @ Fuchan Pandey dated 01-06-15 at 12:45 P.M.
My name is Kiran Devi, aged about 40 years old, w/o Arvind Sah,
Rio Thateri Tola Sabour Police Station- Saber, District- Bhagalpur. I
am giving this statement without any pressure, in presence of the In-
charge of Sabour Police Station today on 01 June, 2015 at the house
of Naval Kishore (Fucchan Pandey) that yesterday on 31st May, 2015,
I went to my late elder sister Sakila Devi’s home situated in Jamunia
Parbatta. In the meantime, at about 12 pm, my elder daughter Priya
MUNNA PANDEY v. STATE OF BIHAR 1037
[J. B. PARDIWALA, J.]
Kumari informed me through telephone that my younger daughter, X
is nowhere to be found. Then I left for Sabour immediately. When I
reached home, my elder daughter Priya informed me that X went to
watch TV at Munna Pandey’s home. When she didn’t come back till 11
am then my elder daughter called me. When I went to Munna Pandey’s
home to find X, I found that Munna Pandey’s house was locked. We
started searching for X along with our relatives but X was nowhere
to be found. When Munna Pandey was asked to open the lock, he said
that he docs not have the keys. Then I called Munna Pandey’s brother
Fucchan Pandey who was at his in-law’s house (sasural).
Today on 1st June, 2015, Naval Kishore Pandey @ Fucchan Pandey
came at around 12 pm and opened the lock of the room where it was
found that Pritam Tiwari, S/o Dilip Tiwari R/o Shobhapur, Police
Station: Rajmahal, District was hiding inside the room. The room
was locked from outside. When Munna Pandey’s room was opened,
the dead body of my daughter was found under the bed. I am certain
that Pritam Tiwari, s/o Dilip Tiwari, r/o Shobhapur, Police Station:
Rajmahal District Sahebanj and Munna Pandey s/o Late Bir Bahadur
Pandey r/o Thatcri Tola, Police Station: Sabour, District Bhagalpur,
jointly conspired and had committed rape on my 11 y/o daughter (X)
and after that strangulated her and killed her and then hid her dead
body in the room.
This is my statement which I heard and understood after reading them
I found the above statements correct and I am putting my signature by
my own will in the presence of my sister’s son, Bablu Sah s/o Satish
Sah r/o Jamunia, Toana Parvata (Navaghchiya) Bhagalpur.”
(Emphasis supplied)
36. The further statement of Kiran Devi recorded by the police under
Section 161 CrPC reads thus:-
“Further investigation of this case, the police re-recorded the statement
of complainant of this case - Kiran Devi, aged about 40 years, W/o
- Arvind Sah, R/o - Thatheri Tola, PS - Sabour, District - Bhagalpur.
Concurring with the FIR, she stated in her statement that in the
neighborhood in front of her house lived two brothers - Munna Pandey
1038 SUPREME COURT REPORTS [2023] 11 S.C.R.
and Naval Kishore Ojha @ Fucchan Pandey. They both have share in
one room each. Frequent quarrels used to take place between the two
brothers, due to which Naval Kishore Ojha @ Fucchan Pandey used
to live at his in-law’s place (sasuraal) and Munna Pandey, Sabour
used to live near Kali Sthan in a rented house. Fucchan Pandey had
handed over his room to his brother-in-law (wife’s brother) for its
maintenance. Pritam Tiwary worked in a cloth shop. People from the
cloth shop also used to visit the house of Fucchan Pandey occasionally.
There was a TV in the house of Fucchan Pandey. Children from the
neighborhood also used to visit his house to watch the TV. On date
31.05.15, I (Kiran Devi) had gone to the house of my late sister, Shakila
Devi in Jamunia Parvatta. On date 31.05.15 at about 12:00, her elder
daughter Priya Kumari informed her on telephone that her younger
daughter X was nowhere to be found. She immediately left from there.
After her arrival at Sabour in her house, her elder daughter informed
that her younger daughter X had stated that she was going to the house
of Pritam Tiwary to watch TV. Pritam Tiwary had called X to watch
TV at his home at around 9 o’clock. When X did not come home till
eleven o’clock, her elder daughter Priya went to the house of Pritam
Tiwary to search for her. At that time Pritam Tiwary was locking the
door. When she asked the whereabouts of X from Pritam Tiwary, he
told that she was not there. After that she went to a mango orchard
to look for her. She was not found there also. Then Priya called all
her relatives and went to search her, but could not find her anywhere.
Even after such a hectic search, X was nowhere to be found. So we
all collectively decided to find Pritam Tiwary who was also not to
be found. The villagers became suspicious so they all called Munna
Pandey and asked him to open the gate. But Munna Pandey declined
to open the gates and said that he did not have the keys to the lock.
The local villagers then telephoned Naval Pandey @ Fucchan Pandey.
At that time he was at his in-law’s place at Shobhapur. When Munna
Pandey declined to hand over the keys, everybody became suspicious
that Pritam Tiwary was not there and it was very much possible that
he (Pritam Tiwary) did some occurrence with her daughter. On 01-
06-2015, Naval Kishore Ojha @ Fucchan Pandey came with his wife
and children and opened the locks of the grill at about 12:00 noon.
MUNNA PANDEY v. STATE OF BIHAR 1039
[J. B. PARDIWALA, J.]
When lock was opened, all the villagers entered the verandah and when
looked through the window in the room of Fucchan Pandey, found
Pritam Tiwary sleeping on the palang (wooden cot) in the room. When
Fucchan Pandey opened the lock of his room, Pritam Tiwary started
hiding himself under the wooden bed. The villagers took him out from
the bed and started to ask the whereabouts of X. Initially he refused to
give any information. But when all the people asked him strictly, he
said that X (deceased) was in the house of Munna Pandey. And when
all the people looked inside the room after breaking the locks of the
doors of Munna Pandey, they found the dead body of eleven year old
daughter X lying below the palang (wooden cot) in the room. When
I looked at my daughter, she was already dead. We found her face
extremely swollen, both the lips swollen, blood stained wound was
seen on her right cheek. Her clothes were in (illegible) manner. The
private parts of deceased X were swollen and blood stained wound
and anus swollen with stool sticking to it, were found. He further
informed that both the accused persons named in the FIR - (1) Pritam
Tiwary, S/o - Dilip Tiwary, R/o - Shobhapur, PS - Raj Mahal, District
- Sahebganj, State - Jharkhand, present address Naval Kishore Ojha,
Thatheri Toal - Sabour, PS - Sabour, District - Bhagalpur, (2) Munna
Pandey, S/o Late Bir Bahadur Pandey, R/o - Thatheri, Toal - Sabour,
PS - Sabour, District - Bhagalpur raped her eleven year daughter X
(deceased) and with a view to remove the evidence. strangled her and
killed her and had hid the dead body below the palang (wooden cot).
The villagers informed the police station. On receiving the information
police came and began their investigation. Besides this, she did not
tell any other important facts.”
(Emphasis supplied)
37. The police statement of PW 1 Babloo Saw reads thus:-
“In further investigation of this case recorded the witness statement
of Babloo Sah, s/o Satish Sah, r/o Jamunia, PS - Parvatta, District -
Khagaria, with complete support to the occurrence in his statement
informed that deceased X is his aunt’s (her mother’s sister) daughter.
On date 31.05.15 mother of the deceased came to his house. Priya,
the elder sister of the deceased X, informed her mother over telephone
1040 SUPREME COURT REPORTS [2023] 11 S.C.R.
that Pritam Tiwary, brother-in-law (wife’s brother) of her neighbor
Naval Kishore Ojha called X to watch television at his house and
that she had not returned home. On information, he along with his
mausi (mother’s sister), Kiran Devi came to Sabour and along with
family members and with the help of local villagers did exhaustive
search in the nearby places, but could not find X anywhere. During
the course of search, when I went to the house of Naval Kishore Ojha,
I saw that his house is locked. Few people suspected that Pritam
Tiwary had taken her somewhere or is inside the room, because the
light of bulb was emitting light from his house. Then all the people
called Munna Pandey and asked him to open the lock to which he
declined and made an excuse that he does not possess the key. Then
the suspicion of all the people grew more. Then villagers informed
Naval Kishore Ojha @ Fucchan Pandey, brother of Munna Pandey
about the occurrence of the incident on telephone. At that time of call
Fuchchan Pandey was at his in-laws house at Shobhapur. He was not
living here since last two months. On date 01.06.15 at about 12:00
noon, Fucchan Pandey came along with his family and opened the
lock of the house and saw Pritam Tiwary hiding in his house. When
local people strictly enquired about the deceased girl X, he informed
that X (deceased) was in Munna Pandey’s house and then he tried
to escape. Then all the people broke the lock on the door of Munna
Pandey’s room and when they looked inside they found the dead body
of X lying under the bed (wooden cot). The clothes on her body were
in haphazard condition. The women of the village told that a lot of
blood stained injury and swelling was found around the private parts
of X (deceased). The face of deceased X was extremely swollen, blood
stained injury on both the lips which was hanging after being swollen.
He further stated that both accused persons. named in the FIR called
the girl on the pretext to watch TV and raped her and with a view to
hide the evidence strangled her and killed her and hid the dead body
below the palang (wooden cot). The local police station was then
informed about the incident. Police came and started its proceeding.
He did not inform any important thing further.”
(Emphasis supplied)
MUNNA PANDEY v. STATE OF BIHAR 1041
[J. B. PARDIWALA, J.]
38. The police statement of PW 3 Priya Kumari, the elder sister of the
victim, reads thus:-
“In further investigation of this case I recorded the statement of witness
Priya Kumari, aged about 15 years, s/o - Arvind Sah, R/o - Thatheri,
tola PS - Sabour, District Bhagalpur. After certifying the FIR, she
informed in her statement that on dated 31.05.15 she was cooking in
her house. Her mother Kiran Devi had gone to the house of her aunt
(her mother’s sister) in Parvatta. Her father works as a laborer in
Gujarat. There was no one else in the house. At about 09:00 am her
younger sister deceased X had gone to the house of Fucchan Pandey
to watch TV. Pritam Tiwary, brother in law of (wife’s sister) Phuchchan
Pandey lived in that house. He had called X to watch TV at his house.
When X did not return even after two hours, Priya (elder sister) went
to the room of Pritam Tiwary to call her. On asking Pritam Tiwary
about the whereabouts of X, he told that X had not come there. At that
time Pritam was locking the grills of the verandah. Then she went to
the nearby mango orchard to look for her. She did not find her there
also. Finally the she telephone her mother and informed her that X
was missing. On arrival of Kiran Devi everybody started looking for
X at all their relatives’ place, but could not find her anywhere. Some
people suspected that X was with Pritam Tiwary. Then everybody
started searching for Pritam Tiwary. He was also not found anywhere.
Then all the villagers and their relatives asked Munna Pandey to open
the house but Munna Pandey refused to do so and made an excuse
that he does not possess the keys. Then the villagers telephoned
Fucchan Pandey who is the brother of Munna Pandey but they found
that Fucchan Pandey was living at his in law’s place (sasuraal) at
Rajmahal since the last two months. On date 01.06.15 at about 12:00
o’clock Naval Kishore Ojha @ Fucchan Pandey came and opened the
lock of his investigation.
(Emphasis supplied)
39. Thus, the case of all the witnesses before the police was that it was
Pritam Tiwari who had come to the house of the victim on the fateful day
and date and had taken the victim along with him to his house to watch TV.
All the statements further reveal that it was Pritam Tiwari who was found
1042 SUPREME COURT REPORTS [2023] 11 S.C.R.
locking the door when the witnesses enquired with Pritam Tiwari about the
whereabouts of the victim.
40. 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.
41. It was the duty of the defence counsel to confront the witnesses
with their police statements so as to prove the contradictions in the form of
material omissions and bring them on record. We are sorry to say that the
learned defence counsel had no idea how to contradict a witness with his or
her police statements in accordance with Section 145 of the Evidence Act,
1872 (for short, ‘Evidence Act’).
42. The lapse on the part of public prosecutor is also something very
unfortunate. The public prosecutor knew that the witnesses were deposing
something contrary to what they had stated before the police in their
statements recorded under Section 161 of the CrPC. It was his duty to bring
to the notice of the witnesses and confront them with the same even without
declaring them as hostile.
43. 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 in exercise of his powers under Section 165 of the Evidence
Act. Section 162 of the CrPC does not prevent a Judge from looking into the
record of the police investigation. Being a case of rape and murder and as the
evidence was not free from doubt, the Trial Judge ought to have acquainted
himself, in the interest of justice, with the important material and also with
what the only important witnesses of the prosecution had said during the
police investigation. Had he done so, he could without any impropriety have
caught the discrepancies between the statements made by these witnesses
to the investigating officer and their evidence at the trial, to be brought on
the record by himself putting questions to the witnesses under Section 165
of the Evidence Act. There is, in our opinion, nothing in Section 162 CrPC
to prevent a Trial Judge, as distinct from the prosecution or the defence,
from putting to prosecution witnesses the questions otherwise permissible,
if the justice obviously demands such a course. In the present case, we are
strongly of the opinion that is what, in the interests of justice, the Trial Judge
MUNNA PANDEY v. STATE OF BIHAR 1043
[J. B. PARDIWALA, J.]
should have done but he did not look at the record of the police investigation
until after the investigating officer had been examined and discharged as a
witness. Even at this stage, the Trial Judge could have recalled the officer
and other witnesses and questioned them in the manner provided by Section
165 of the Evidence Act. It is regrettable that he did not do so.
44. We take this opportunity of explaining the aforesaid a little more
explicitly.
45. Section 162 of the CrPC reads thus:-
“Section 162. Statements to police not to be signed : Use of statements
in evidence.─(1) No statement made by any person to a police officer
in the course of an investigation under this Chapter, shall, if reduced to
writing, be signed by the person making it; nor shall any such statement
or any record thereof, whether in a police diary or otherwise, or any
part of such statement or record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial in respect of any offence
under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such
inquiry or trial whose statement has been reduced into writing as
aforesaid, any part of his statement, if duly proved, may be used by
the accused, and with the permission of the Court, by the prosecution,
to contradict such witness in the manner provided by section 145 of
the Indian Evidence Act , 1872 (1 of 1872); and when any part of
such statement is so used, any part thereof may also be used in the
re-examination of such witness, but for the purpose only of explaining
any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement
falling within the provisions of clause (1) of section 32 of the Indian
Evidence Act, 1872 (1 of 1872); or to affect the provisions of section
27 of that Act.
Explanation.--An omission to state a fact or circumstance in the
statement referred to in sub-section (1) may amount to contradiction
if the same appears to be significant and otherwise relevant having
regard to the context in which such omission occurs and whether any
omission amounts to a contradiction in the particular context shall
be a question of fact.”
1044 SUPREME COURT REPORTS [2023] 11 S.C.R.
46. Section 162 CrPC says that no statement made by any person to
a police officer in the course of an investigation, whether it be recorded or
not, shall be used for the purpose save as provided in the first proviso to the
Section. The first proviso says that when any witness, whose statement has
been reduced into writing by the police in accordance with the provisions of
the CrPC, is called for the prosecution in inquiry or trial the accused with the
permission of the court may contradict the witnesses in the manner provided
by Section 145 of the Evidence Act. It could be argued that, as the first part of
Section 162 prohibits the use of the statement of a witness to a police officer
for any purpose, other than that subsequently provided for in the proviso, and
as the proviso says that the Court may permit the accused to contradict the
witness with his previous statement, the Court has no power to do anything
suo motu. In our opinion, this would be a misreading of the Section. The
first part of Section 162 says that the statement made by a person to a police
officer during investigation cannot be used for any purpose other than that
mentioned in the proviso. We lay stress on the word “purpose”. The purpose
mentioned in the proviso is the purpose of contradicting the evidence given
in favour of the State by a prosecution witness in Court by the use of the
previous statement made by such witness to the police officer. The purpose
is to discredit the evidence given in favour of the prosecution by a witness
for the State. The Section prohibits the use of the statement for any other
purpose than this. It does not say that the statement can only be used at the
request of the accused. The limitation or restriction imposed in the first part
of Section 162 CrPC relates to this purpose for which the statement may
be used; it does not relate to the procedure which may be adopted to effect
this purpose. The proviso which sets out the limited purpose also mentions
the way in which an accused person may contradict the witness with his
previous statement made to the Police, but it does not in any way purport
to take away the power that lies in the Court to look into any document,
that it considers necessary to look into for the ends of justice and to put
such questions to a witness as it may consider necessary to elicit the truth.
We realise that the proviso would prevent the Court from using statements
made by a person to a police officer in the course of investigation for any
other purpose than that mentioned in the proviso but it does not in any other
way affect the power that lies in the Court to look into documents or put
questions to witnesses suo motu. It seems to us to be absurd to suggest that
MUNNA PANDEY v. STATE OF BIHAR 1045
[J. B. PARDIWALA, J.]
a Judge cannot put a question to a witness which a party may put. In this
connection we would refer to the provisions of Section 165 of the Evidence
Act, where the necessity of clothing the Judge with very wide powers to
put questions to witnesses and to look into documents is recognised and
provided for. This is what Section 165 of the Evidence Act says:—
“Section 165. Judge’s power to put questions or order production.─
The Judge may, in order to discover or to obtain proper proof of
relevant facts, ask any question he pleases, in any form, at any time,
of any witness, or of the parties about any fact relevant or irrelevant;
and may order the production of any document or thing; and neither
the parties nor their agents shall be entitled to make any objection
to any such question or order, nor, without the leave of the Court, to
cross-examine any witness upon any answer given in reply to any
such question: …”
47. There is in our opinion nothing in Section 162 of the CrPC which
prevents a Trial Judge from looking into the papers of the chargesheet suo
motu and himself using the statement of a person examined by the police
recorded therein for the purpose of contradicting such person when he gives
evidence in favour of the State as a prosecution witness. The Judge may
do this or he may make over the recorded statement to the lawyer for the
accused so that he may use it for this purpose. We also wish to emphasise
that in many sessions cases when an advocate appointed by the Court appears
and particularly when a junior advocate, who has not much experience of
the procedure of the Court, has been appointed to conduct the defence of an
accused person, it is the duty of the Presiding Judge to draw his attention to
the statutory provisions of Section 145 of the Evidence Act, as explained
in Tara Singh v. State reported in AIR 1951 SC 441 and no Court should
allow a witness to be contradicted by reference to the previous statement in
writing or reduced to writing unless the procedure set out in Section 145 of
the Evidence Act has been followed. It is possible that if the attention of the
witness is drawn to these portions with reference to which it is proposed to
contradict him, he may be able to give a perfectly satisfactory explanation
and in that event the portion in the previous statement which would otherwise
be contradictory would no longer go to contradict or challenge the testimony
of the witness.
1046 SUPREME COURT REPORTS [2023] 11 S.C.R.
48. In our opinion, in a case of the present description where the
evidence given in a Court implicates persons who are not mentioned in the
first information report or police statements, it is always advisable and far
more important for the Trial Judge to look into the police papers in order
to ascertain whether the persons implicated by witnesses, at the trial had
been implicated by them during the investigation.
49. In the aforesaid context, we may refer to and rely on a three-Judge
Bench decision in the case of V.K. Mishra v. State of Uttarakhand, (2015)
9 SCC 588, wherein this Court, after due consideration of Section 161 of
the CrPC and Section 145 of the Evidence Act, observed as under:-
“16. Section 162 CrPC bars use of statement of witnesses recorded
by the police except for the limited purpose of contradiction of such
witnesses as indicated there. The statement made by a witness before
the police under Section 161(1) CrPC can be used only for the purpose
of contradicting such witness on what he has stated at the trial as laid
down in the proviso to Section 162(1) CrPC. The statements under
Section 161 CrPC recorded during the investigation are not substantive
pieces of evidence but can be used primarily for the limited purpose:
(i) of contradicting such witness by an accused under Section 145 of
the Evidence Act; (ii) the contradiction of such witness also by the
prosecution but with the leave of the Court; and (iii) the re-examination
of the witness if necessary.
17. The court cannot suo motu make use of statements to police not
proved and ask questions with reference to them which are inconsistent
with the testimony of the witness in the court. The words in Section
162 CrPC “if duly proved” clearly show that the record of the
statement of witnesses cannot be admitted in evidence straightaway
nor can be looked into but they must be duly proved for the purpose
of contradiction by eliciting admission from the witness during cross-
examination and also during the cross-examination of the investigating
officer. The statement before the investigating officer can be used for
contradiction but only after strict compliance with Section 145 of the
Evidence Act that is by drawing attention to the parts intended for
contradiction.
MUNNA PANDEY v. STATE OF BIHAR 1047
[J. B. PARDIWALA, J.]
18. Section 145 of the Evidence Act reads as under:
“145.Cross-examination as to previous statements in writing.—A
witness may be cross-examined as to previous statements made
by him in writing or reduced into writing, and relevant to
matters in question, without such writing being shown to him,
or being proved; but, if it is intended to contradict him by the
writing, his attention must, before the writing can be proved, be
called to those parts of it which are to be used for the purpose
of contradicting him.”
19. Under Section 145 of the Evidence Act when it is intended
to contradict the witness by his previous statement reduced into
writing, the attention of such witness must be called to those parts of
it which are to be used for the purpose of contradicting him, before
the writing can be used. While recording the deposition of a witness,
it becomes the duty of the trial court to ensure that the part of the
police statement with which it is intended to contradict the witness
is brought to the notice of the witness in his cross-examination. The
attention of witness is drawn to that part and this must reflect in his
cross-examination by reproducing it. If the witness admits the part
intended to contradict him, it stands proved and there is no need to
further proof of contradiction and it will be read while appreciating
the evidence. If he denies having made that part of the statement, his
attention must be drawn to that statement and must be mentioned in
the deposition. By this process the contradiction is merely brought
on record, but it is yet to be proved. Thereafter when investigating
officer is examined in the court, his attention should be drawn to
the passage marked for the purpose of contradiction, it will then
be proved in the deposition of the investigating officer who again
by referring to the police statement will depose about the witness
having made that statement. The process again involves referring to
the police statement and culling out that part with which the maker
of the statement was intended to be contradicted. If the witness was
not confronted with that part of the statement with which the defence
wanted to contradict him, then the court cannot suo motu make use
of statements to police not proved in compliance with Section 145 of
1048 SUPREME COURT REPORTS [2023] 11 S.C.R.
the Evidence Act that is, by drawing attention to the parts intended
for contradiction.
(Emphasis supplied)
50. What is important to note in the aforesaid decision of this Court
is the principle of law that if the witness was not confronted with that part
of the statement with which the defence wanted to contradict him, then
the Court cannot suo motu make use of statements to police not proved
in compliance with Section 145 of the Evidence Act. Therefore, it is of
utmost importance to prove all major contradictions in the form of material
omissions in accordance with the procedure as established under Section
145 of the Evidence Act and bring them on record. It is the duty of the
defence counsel to do so.
51. This Court in Raghunandan v. State of U.P. reported in (1974) 4
SCC 186, it was observed:-(SCC p. 191, para 16)
“16. We are inclined to accept the argument of the appellant that the
language of Section 162, Criminal Procedure Code, though wide, is
not explicit or specific enough to extend the prohibition to the use of the
wide and special powers of the Court to question a witness, expressly
and explicitly given by Section 165 of the Indian Evidence Act in order
to secure the ends of justice. ….Therefore, we hold that Section 162,
Criminal Procedure Code, does not impair the special powers of the
Court under Section 165, Indian Evidence Act. …”
(Emphasis supplied)
52. This Court in Dandu Lakshmi Reddy v. State of A.P., (1999) 7
SCC 69, it was held:-
“20. It must now be remembered that the said procedure can be
followed only when a witness is in the box. Barring the above two
modes, a statement recorded under Section 161 of the Code can only
remain fastened up at all stages of the trial in respect of that offence.
In other words, if the court has not put any question to the witness with
reference to his statement recorded under Section 161 of the Code,
it is impermissible for the court to use that statement later even for
drawing any adverse impression regarding the evidence of that witness.
MUNNA PANDEY v. STATE OF BIHAR 1049
[J. B. PARDIWALA, J.]
What is interdicted by Parliament in direct terms cannot be obviated
in any indirect manner.”
(Emphasis supplied)
53. Sarkar (1999, 15th pp. 2319 etc.) says that a Judge is entitled to
take a proactive role in putting questions to ascertain the truth and to fill up
doubts, if any, arising out of inept examination of witnesses. But, as stated
by Lord Denning in Jones v. National Coal Board, 1957 (2) All ER 155
(CA), the Judge cannot “drop the mantle of a Judge and assume the robe
of an advocate”.
54. Of course, the Judge should not be a passive spectator but should
take a proactive role as emphasized by Phipson (Evidence, 1999, 15th Ed,
para 1.21 as under:-
“When the form of the English trial assumed its modern institutional
form, the role of the judge was that of a neutral umpire. This is still
broadly the position in criminal cases. In civil cases, the abandonment
of jury trial except in a few exceptional cases led to some dilution of
this principle. The wholesale changes in 1999 of the rules governing
civil procedure has emphasized the interventionist role of the modern
judge. Whereas formally the tribunal was a ‘reactive judge (for
centuries past at the heart of the English Common Law -- concept of
the independent judiciary) instead we shall have a proactive judge
whose task will be to take charge of the action at an early stage and
manage its conduit.”
(Emphasis supplied)
55. This Court in State of Rajasthan v. Ani @ Hanif and Ors. (1997)
6 SCC 162, made very relevant and important observations as under:-
“11. … Section 165 of the Evidence Act confers vast and unrestricted
powers on the trial court to put “any question he pleases, in any form,
at any time, of any witness, or of the parties, about any fact relevant
or irrelevant” in order to discover relevant facts. The said section was
framed by lavishly studding it with the word “any” which could only
have been inspired by the legislative intent to confer unbridled power
on the trial court to use the power whenever he deems it necessary to
1050 SUPREME COURT REPORTS [2023] 11 S.C.R.
elicit truth. Even if any such question crosses into irrelevancy the same
would not transgress beyond the contours of powers of the court. This
is clear from the words “relevant or irrelevant” in Section 165. Neither
of the parties has any right to raise objection to any such question.
12. Reticence may be good in many circumstances, but a Judge
remaining mute during trial is not an ideal situation. A taciturn Judge
may be the model caricatured in public mind. But there is nothing
wrong in his becoming active or dynamic during trial so that criminal
justice being the end could be achieved. Criminal trial should not
turn out to be a bout or combat between two rival sides with the
Judge performing the role only of a spectator or even an umpire to
pronounce finally who won the race. A Judge is expected to actively
participate in the trial, elicit necessary materials from witnesses in the
appropriate context which he feels necessary for reaching the correct
conclusion. There is nothing which inhibits his power to put questions
to the witnesses, either during chief examination or cross-examination
or even during re-examination to elicit truth. The corollary of it is that
if a Judge felt that a witness has committed an error or a slip it is the
duty of the Judge to ascertain whether it was so, for, to err is human
and the chances of erring may accelerate under stress of nervousness
during cross-examination. Criminal justice is not to be founded on
erroneous answers spelled out by witnesses during evidence-collecting
process. It is a useful exercise for trial Judge to remain active and
alert so that errors can be minimised. (Emphasis supplied)
56. In the above context, it is apposite to quote the observations of
Chinnappa Reddy, J. in Ram Chander v. State of Haryana, (1981) 3 SCC
191:-
“2. The adversary system of trial being what it is, there is an
unfortunate tendency for a judge presiding over a trial to assume the
role of a referee or an umpire and to allow the trial to develop into a
contest between the prosecution and the defence with the inevitable
distortions flowing from combative and competitive element entering
the trial procedure. If a criminal court is to be an effective instrument
in dispensing justice, the presiding judge must cease to be a spectator
and a mere recording machine. He must become a participant in the
MUNNA PANDEY v. STATE OF BIHAR 1051
[J. B. PARDIWALA, J.]
trial by evincing intelligent active interest by putting questions to
witnesses in order to ascertain the truth. …”
(Emphasis supplied)
ROLE AND DUTY OF THE HIGH COURT IN CONFIRMATION
CASES
57. We regret to state that the High Court completely overlooked the
aforesaid aspects as discussed above. What was expected of the High Court
to do in such circumstances? If the High Court would have taken little pains
to look into the record, then immediately it could have taken recourse to
Section 367 of the CrPC. We invite the attention of the High Court to the
provisions of Chapter XXVIII (Section 366 to Section 371) and Chapter
XXIX (Section 372 to Section 394). The provisions of Section 366 to Section
368 and Sections 386 and Section 391 are quoted here for ready reference:-
“Section 366. Sentence of death to be submitted by Court of Session
for confirmation.—(1) When the Court of Session passes a sentence of
death, the proceedings shall be submitted to the High Court, and the
sentence shall not be executed unless it is confirmed by the High Court.
(2) The Court passing the sentence shall commit the convicted person
to jail custody under a warrant.
Section 367. Power to direct further inquiry to be made or additional
evidence to be taken.—(1) If, when such proceedings are submitted,
the High Court thinks that a further inquiry should be made into or
additional evidence taken upon, any point bearing upon the guilt or
innocence of the convicted person, it may make such inquiry or take
such evidence itself, or direct it to be made or taken by the Court of
Session.
(2) Unless the High Court otherwise directs, the presence of the
convicted person may be dispensed with when such inquiry is made
or such evidence is taken.
(3) When the inquiry or evidence (if any) is not made or taken by the
High Court, the result of such inquiry or evidence shall be certified
to such Court.
1052 SUPREME COURT REPORTS [2023] 11 S.C.R.
Section 368. Power of High Court to confirm sentence or annual
conviction.—In any case submitted under Section 366, the High
Court—
(a) may confirm the sentence, or pass any other sentence warranted
by law, or
(b) may annul the conviction, and convict the accused of any offence
of which the Court of Session might have convicted him, or order a
new trial on the same or an amended charge, or
(c) may acquit the accused person:
Provided that no order of confirmation shall be made under this section
until the period allowed for preferring an appeal has expired, or, if an
appeal is presented within such period, until such appeal is disposed of.
× × × ×
Section 386. Powers of the appellate court.—After perusing such
record and hearing the appellant or his pleader, if he appears, and the
Public Prosecutor, if he appears, and in case of an appeal under Section
377 or Section 378, the accused, if he appears, the Appellate Court
may, if it considers that there is no sufficient ground for interfering,
dismiss the appeal, or may—
(a) in an appeal from an order of acquittal, reverse such order and
direct that further inquiry be made, or that the accused be re-tried or
committed for trial, as the case may be, or find him guilty and pass
sentence on him according to law;
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and acquit or discharge the
accused, or order him to be re-tried by a court of competent
jurisdiction subordinate to such Appellate Court or committed for
trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the
extent, or the nature and extent, of the sentence, but not so as to
enhance the same;
MUNNA PANDEY v. STATE OF BIHAR 1053
[J. B. PARDIWALA, J.]
(c) in an appeal for enhancement of sentence—
(i) reverse the finding and sentence and acquit or discharge the
accused or order him to be re-tried by a court competent to try the
offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the
extent, or the nature and extent, of the sentence, so as to enhance
or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order
that may be just or proper:
Provided that the sentence shall not be enhanced unless the accused
has had an opportunity of showing cause against such enhancement:
Provided further that the Appellate Court shall not inflict greater
punishment for the offence which in its opinion the accused has
committed, than might have been inflicted for that offence by the court
passing the order or sentence under appeal.
× × × ×
Section 391. Appellate Court may take further evidence or direct it
to be taken.—(1) In dealing with any appeal under this Chapter, the
Appellate Court, if it thinks additional evidence to be necessary, shall
record its reasons and may either take such evidence itself, or direct
it to be taken by a Magistrate, or when the Appellate Court is a High
Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or
the Magistrate, it or he shall certify such evidence to the Appellate
Court, and such Court shall thereupon proceed to dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when
the additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the
provisions of Chapter XXIII, as if it were an inquiry.”
(Emphasis supplied)
1054 SUPREME COURT REPORTS [2023] 11 S.C.R.
58. According to Section 366 when a Court of Session passes a
sentence of death, the proceedings must be submitted to the High Court
and the sentence of death is not to be executed unless it is confirmed by
the High Court. Section 367 then proceeds to lay down the power of the
High Court to direct further enquiry to be made or additional evidence to
be taken. Section 368, thereafter, lays down the power of the High Court
to confirm the sentence so imposed or annul the conviction. One of the
powers which the High Court can exercise is one under Section 368(c) of
the CrPC and that is to “acquit the accused person”. Pertinently, the power
to acquit the person can be exercised by the High Court even without there
being any substantive appeal on the part of the accused challenging his
conviction. To that extent, the proceedings under Chapter XXVIII which
deal with “submission of death sentences for confirmation” is a proceeding
in continuation of the trial. These provisions thus entitle the High Court to
direct further enquiry or to take additional evidence and the High Court may,
in a given case, even acquit the accused person. The scope of the chapter is
wider. Chapter XXIX of the CrPC deals with “Appeals”. Section 391 also
entitles the appellate court to take further evidence or direct such further
evidence to be taken. Section 386 then enumerates powers of the appellate
court which inter alia includes the power to “reverse the finding and sentence
and acquit or discharge the accused, or order him to be re-tried by a court of
competent jurisdiction subordinate to such appellate court or committed for
trial”. The powers of the appellate court are equally wide. The High Court
in the present case was exercising powers both under Chapters XXVIII and
XXIX of the CrPC.
59. Ordinarily, in a criminal appeal against conviction, the appellate
court, under Section 384 of the CrPC, can dismiss the appeal, if the Court is of
the opinion that there is no sufficient ground for interference, after examining
all the grounds urged before it for challenging the correctness of the decision
given by the Trial Court. It is not necessary for the appellate court to examine
the entire record for the purpose of arriving at an independent decision of its
own whether the conviction of the appellant is fully justified. The position
is, however, different where the appeal is by an accused who is sentenced
to death, so that the High Court dealing with the appeal has before it,
simultaneously with the appeal, a reference for confirmation of the capital
sentence under Section 366 of the CrPC. On a reference for confirmation of
MUNNA PANDEY v. STATE OF BIHAR 1055
[J. B. PARDIWALA, J.]
sentence of death, the High Court is required to proceed in accordance with
Sections 367 and 368 respectively of the CrPC and the provisions of these
Sections make it clear that the duty of the High Court, in dealing with the
reference, is not only to see whether the order passed by the Sessions Judge
is correct, but to examine the case for itself and even direct a further enquiry
or the taking of additional evidence if the Court considers it desirable in
order to ascertain the guilt or the innocence of the convicted person. It is
true that, under the proviso to Section 368, no order of confirmation is to
be made until the period allowed for preferring the appeal has expired, or,
if an appeal is presented within such period, until such appeal is disposed
of, so that, if an appeal is filed by a condemned prisoner, that appeal has
to be disposed of before any order is made in the reference confirming the
sentence of death. In disposing of such an appeal, however, it is necessary
that the High Court should keep in view its duty under Section 367 CrPC
and, consequently, the Court must examine the appeal record for itself,
arrive at a view whether a further enquiry or taking of additional evidence is
desirable or not, and then come to its own conclusion on the entire material
on record whether conviction of the condemned prisoner is justified and the
sentence of death should be confirmed. [See: Bhupendra Singh (supra)]
60. In Jumman (supra), this Court explained the aforestated position
in the following words:-
“10. … but there is a difference when a reference is made under
Section 374 of the Criminal Procedure Code (Section 366 of the
Code of Criminal Procedure, 1973), and when disposing of an appeal
under Section 423 of the Criminal Procedure Code (Section 386 of the
Code of Criminal Procedure, 1973) and that is that the High Court
has to satisfy itself as to whether a case beyond reasonable doubt has
been made out against the accused persons for the infliction of the
penalty of death. In fact the proceedings before the High Court are a
reappraisal and the reassessment of the entire facts and law in order
that the High Court should be satisfied on the materials about the guilt
or innocence of the accused persons. Such being the case, it is the duty
of the High Court to consider the proceedings in all their aspects and
come to an independent conclusion on the materials, apart from the
view expressed by the Sessions Judge. In so doing, the High Court will
1056 SUPREME COURT REPORTS [2023] 11 S.C.R.
be assisted by the opinion expressed by the Sessions Judge, but under
the provisions of the law above-mentioned it is for the High Court to
come to an independent conclusion of its own.”
61. The same principle was recognised in Ram Shankar Singh
(supra):-
“12. … The High Court had also to consider what order should
be passed on the reference under Section 374, and to decide on an
appraisal of the evidence, whether the order of conviction for the
offences for which the accused were convicted was justified and
whether, having regard to the circumstances, the sentence of death
was the appropriate sentence. …”
62. In Masalti v. State of U.P., (1964) 8 SCR 133, this Court was
dealing with an appeal under Article 136 of the Constitution and, in that
appeal, on behalf of the persons who were under sentence of death, a point
was sought to be urged which was taken before the trial court and was
rejected by it, but was not repeated before the High Court. This Court held:-
“11. …it may, in a proper case, be permissible to the appellants to
ask this Court to consider that point in an appeal under Article 136
of the Constitution; after all in criminal proceedings of this character
where sentences of death are imposed on the appellants, it may not
be appropriate to refuse to consider relevant and material pleas of
fact and law only on the ground that they were not urged before the
High Court. If it is shown that the pleas were actually urged before
the High Court and had not been considered by it, then, of course
the party is entitled as a matter of right to obtain a decision on those
pleas from this Court. But even otherwise no hard and fast Rule can
be laid down prohibiting such pleas being raised in appeals under
Article 136.”
63. In Kunal Majumdar v. State of Rajasthan, (2012) 9 SCC 320, this
Court was dealing with an appeal filed by a convict sentenced to death. It
was noted that the High Court had dealt with the reference in a very casual
and callous manner by merely stating that the counsel for the appellant
therein pleaded for sympathetic consideration in commuting the death
sentence into sentence for life. This Court noticed that there was absolutely
MUNNA PANDEY v. STATE OF BIHAR 1057
[J. B. PARDIWALA, J.]
no consideration of the relative merits and demerits of the conviction and the
sentence imposed in the reference under Section 366(1) CrPC in the manner
in which it was required to be considered. This Court while remitting the
matter back to the High Court observed thus:-
“16. In a case for consideration for confirmation of death sentence
under Section 366(1) CrPC, the High Court is bound to examine the
reference with particular reference to the provisions contained in
Sections 367 to 371 CrPC. Under Section 367 CrPC, when reference
is submitted before the High Court, the High Court, if satisfied that a
further enquiry should be made or additional evidence should be taken
upon, any point bearing upon the guilt or innocence of the convict
person, it can make such enquiry or take such evidence itself or direct
it to be made or taken by the Court of Session. The ancillary powers
as regards the presence of the accused in such circumstances have
been provided under sub-sections (2) and (3) of Section 367 CrPC.
Under Section 368, while dealing with the reference under Section
366, it inter alia provides for confirmation of the sentence or pass any
other sentence warranted by law or may annul the conviction itself
and in its place convict the accused for any other offence of which
the Court of Session might have convicted the accused or order a
new trial on the same or an amended charge. It may also acquit the
accused person. Under Section 370, when such reference is heard by
a Bench of Judges and if they are divided in their opinion, the case
should be decided in the manner provided under Section 392 as per
which the case should be laid before another Judge of that Court
who should deliver his opinion and the judgment or order should
follow that opinion. Here again, under the proviso to Section 392, it
is stipulated that if one of the Judges constituting the Bench or where
the appeal is laid before another Judge, either of them, if so required,
direct for rehearing of the appeal for a decision to be rendered by a
larger Bench of Judges.
17. When such a special and onerous responsibility has been imposed
on the High Court while dealing with a reference under Section 366(1)
CrPC, we are shocked to note that in the order [Criminal Murder
Reference No. 1 of 2007 under S. 366(1) CrPC, decided on 11-7-
1058 SUPREME COURT REPORTS [2023] 11 S.C.R.
2007 (Raj)] impugned herein, the Division Bench merely recorded to
the effect that the counsel for the appellant pleaded for sympathy to
commute the death sentence into one for life for the offence falling
under Section 302 IPC while praying for maintaining the sentence
imposed for the offence under Sections 376/511 IPC and that there
was no opposition from the learned Public Prosecutor. The Division
Bench on that sole ground and by merely stating that there was no use
of force of severe nature on the victim at the hands of the appellant and
that the commission of offence of murder cannot be held to be brutal or
inhuman and consequently the death sentence was liable to be altered
as one for life for the offence under Section 302 IPC. The Division
Bench of the High Court did not bother to exercise its jurisdiction
vested in it under Section 366(1) CrPC read with Sections 368 to
370 and 392 CrPC in letter and spirit and thereby, in our opinion,
shirked its responsibility while deciding the reference in the manner
it ought to have been otherwise decided under the Code of Criminal
Procedure. We feel that less said is better while commenting upon the
cursory manner in which the judgment came to be pronounced by the
Division Bench while dealing with the reference under Section 366(1)
while passing the impugned judgment [Criminal Murder Reference
No. 1 of 2007 under S. 366(1) CrPC, decided on 11-7-2007 (Raj)].
18. We are however duty-bound to state and record that in a reference
made under Section 366(1) CrPC, there is no question of the High
Court short-circuiting the process of reference by merely relying upon
any concession made by the counsel for the convict or that of the
counsel for the State. A duty is cast upon the High Court to examine the
nature and the manner in which the offence was committed, the mens
rea if any, of the culprit, the plight of the victim as noted by the trial
court, the diabolic manner in which the offence was alleged to have
been performed, the ill-effects it had on the victim as well as the society
at large, the mindset of the culprit vis-à-vis the public interest, the
conduct of the convict immediately after the commission of the offence
and thereafter, the past history of the culprit, the magnitude of the crime
and also the consequences it had on the dependants or the custodians
of the victim. There should be very wide range of consideration to be
MUNNA PANDEY v. STATE OF BIHAR 1059
[J. B. PARDIWALA, J.]
made by the High Court dealing with the reference in order to ensure
that the ultimate outcome of the reference would instill confidence in
the minds of peace-loving citizens and also achieve the object of acting
as a deterrent for others from indulging in such crimes.
(Emphasis supplied)
CONCEPT OF FAIR TRAIL
64. All fair trials are necessarily legally valid, but is the reverse
necessarily true? What then is the genesis of the concept of a fair trial? The
concept of a fair trial has a very impressive ancestry, is rooted in history,
enshrined in the Constitution, sanctified by religious philosophy and juristic
doctrines and embodied in the statute intended to regulate the course of a
criminal trial. Its broad features and ingredients have, in course of time,
been concretised into well recognised principles, even though there are grey
areas, which call for further legal thought and research.
65. Truth is the cherished principle and is the guiding star of the Indian
criminal justice system. For justice to be done truth must prevail. Truth is
the soul of justice. The sole idea of 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.
66. For the dispensation of criminal justice, India follows the
accusatorial or adversarial system of common law. In the accusatorial or
adversarial system the accused is presumed to be innocent; prosecution and
defence each put their case; judge acts as an impartial umpire and while
acting as a neutral umpire sees whether the prosecution has been able to
prove its case beyond reasonable doubt or not.
67. 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 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. A fair trial necessarily
includes fair and proper opportunity to the prosecutor to prove the guilt of
the accused and opportunity to the accused to prove his innocence.
1060 SUPREME COURT REPORTS [2023] 11 S.C.R.
68. The role of a judge in dispensation of justice after ascertaining
the true facts no doubt is very difficult one. In the pious process of
unravelling the truth so as to achieve the ultimate goal of dispensing
justice between the parties the judge cannot keep himself unconcerned
and oblivious to the various happenings taking place during the progress
of trial of any case. No doubt he has to remain very vigilant, cautious,
fair and impartial, and not to give even a 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 feeded
by the parties.
69. Malimath Committee on Judicial Reforms discussed the paramount
duty of Courts to search for truth. The relevant observations of the Committee
are as under:-
(a) The Indian ethos accords the highest importance to truth. The
motto “Satyameva Jayate” (Truth alone succeeds) is inscribed
in our National Emblem “Ashoka Sthambha”. Our epics extol
the virtue of truth.
(b) For the common man truth and justice are synonymous. So
when truth fails, justice fails. Those who know that the acquitted
accused was in fact the offender, lose faith in the system.
(c) In practice however we find that the Judge, in his anxiety to
demonstrate his neutrality opts to remain passive and truth often
becomes a casualty.
(d) Truth being the cherished ideal and ethos of India, pursuit of truth
should be the guiding star of the Justice System. For justice to be
done truth must prevail. It is truth that must protect the innocent
and it is truth that must be the basis to punish the guilty. Truth
is the very soul of justice. Therefore, truth should become the
ideal to inspire the courts to pursue.
(e) Many countries which have Inquisitorial model have inscribed
in their Parliamentary Acts a duty to find the truth in the case. In
Germany Section 139 of the so called ‘Majna Charta’, a breach
MUNNA PANDEY v. STATE OF BIHAR 1061
[J. B. PARDIWALA, J.]
of the Judges’ duty to actively discover truth would promulgate
a procedural error which may provide grounds for an appeal.
(f) For Courts of justice there cannot be any better or higher ideal
than quest for truth.
70. This Court has condemned the passive role played by the Judges
and emphasized the importance and legal duty of a Judge to take an active
role in the proceedings in order to find the truth to administer justice and
to prevent the truth from becoming a casualty. A Judge is also duty bound
to act with impartiality and before he gives an opinion or sits to decide the
issues between the parties, he should be sure that there is no bias against
or for either of the parties to the lis. For a judge to properly discharge this
duty the concept of independence of judiciary is in existence and it includes
ability and duty of a Judge to decide each case according to an objective
evaluation and application of the law, without the influence of outside factors.
71. If the Courts are to impart justice in a free, fair and effective
manner, then the presiding judge cannot afford to remain a mute spectator
totally oblivious to the various happenings taking place around him, more
particularly, concerning a particular case being tried by him. The fair trial
is possible only when the court takes active interest and elicit all relevant
information and material necessary so as to find out the truth for achieving
the ultimate goal of dispensing justice with all fairness and impartiality to
both the parties.
72. In Ram Chander (supra), while speaking about the presiding
judge in a criminal trial, Chinnappa Reddy, J. observed that if a criminal
court is to be an effective instrument in dispensing justice, the presiding
judge must cease to be a spectator and a mere recording machine. He must
become a participant in the trial by evincing intelligent active interest by
putting questions to witnesses in order to ascertain the truth. The learned
Judge reproduced a passage from Sessions Judge, Nellore v. Intha Ramana
Reddy, 1972 Cri.L.J. 1485, which reads as follows:—
“Every criminal trial is a voyage of discovery in which truth is the
quest. It is the duty of a presiding Judge to explore every avenue
open to him in order to discover the truth and to advance the cause
of justice. For that purpose he is expressly invested by Section 165 of
1062 SUPREME COURT REPORTS [2023] 11 S.C.R.
the Evidence Act with the right to put questions to witnesses. Indeed
the right given to a Judge is so wide that he may, ask any question
he pleases, in any form, at any time, of any witness, or of the parties
about any fact, relevant or irrelevant. Section 172(2) of the Code of
Criminal Procedure enables the court to send for the police-diaries in
a case and use them to aid it in the trial. The record of the proceedings
of the Committing Magistrate may also be perused by the Sessions
Judge to further aid him in the trial.”
73. For all the foregoing reasons, we are left with no other alternative
but to set aside the impugned judgment of the High Court and remit the
matter back to the High Court for deciding the reference under Section 366
of the CrPC in the manner it ought to have been decided, more particularly
keeping in mind the serious lapses on the part of the defence in not proving
major contradictions in the form of material omissions surfacing from the
oral evidence of the prosecution witnesses.
74. If anyone would ask us the question, “What is the ratio of this
Judgment?” The answer to the same would be very simple and plain, in the
words of Clarence Darrow;
“Justice has nothing to do with what goes on in the courtroom; Justice
is what comes out of a courtroom.”
75. In the result, the impugned judgment of the High Court is set
aside and the matter is remitted back to the High Court for reconsideration
of the Death Reference No. 4 of 2017 and Criminal Appeal (DB) No. 358
of 2017. The Death Reference No. 4 of 2017 and Criminal Appeal (DB)
No. 358 of 2017 stand restored for reconsideration of the High Court in
accordance with law.
76. The appellant is in jail past more than nine years. In such
circumstances, the Death Reference referred to above on being restored to
the file of the High Court shall be taken up for hearing expeditiously. The
learned Chief Justice of the High Court is requested to notify the Death
Reference along with the Criminal Appeal for hearing before a Bench which
he may deem fit to constitute. We also request the learned Judges who would
be hearing the matter to give priority and dispose of the same at the earliest
in accordance with law.
MUNNA PANDEY v. STATE OF BIHAR 1063
[J. B. PARDIWALA, J.]
77. As the appellant convict is in jail 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.
78. The Registry shall forward one copy each of this judgment to all
the High Courts with a further request to each of the High Courts to circulate
the same in its respective district judiciary.
79. The appeals are disposed of accordingly.
Headnotes prepared by: Appeals disposed of.
Divya Pandey
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