2023INSC793 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1271 -1272 OF 2018

MUNNA PANDEY …APPELLANT

VERSUS

STATE OF BIHAR …RESPONDENT

J U D G M E N T

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

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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 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

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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 S C

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 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

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(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).

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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

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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.

(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

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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.

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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 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 examinati on 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 SCCOnline 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

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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.

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.

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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.

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)

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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.

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

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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 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

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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 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

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(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)

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”.

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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

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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 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

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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 witness,

who had seen that appellant had persuaded and

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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,

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then he said that key 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

20

occurrence, which suggests that it 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

21

very much nervous and also she was repeatedly

weeping and this was 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 Pa ndey, 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-

22

examination, she stated that the dead body of her

daughter was found in the house of Munna Pandey

(appellant). On examination of her 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.

xxx xxx xxx

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 vict im 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

23

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. 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,

24

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 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.

25

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.

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

26

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

27

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;

(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.

28

(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.

(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

29

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 medica l

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:

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 est ablished only by

30

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.”

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 SECTI ON 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:-

31

“(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.

32

(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

33

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 31

st

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 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 1

st 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

34

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 s tatement that in the

neighborhood in front of her house lived two brothers -

Munna Pandey 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

35

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 t hat 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. 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

36

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 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

37

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)

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 he r 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

38

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 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

39

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

40

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 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

41

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 call ed 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.”

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

42

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

43

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 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

44

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

45

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.

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

46

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.

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

47

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 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)

48

“16. We are inclined to accept the argument of t he

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. 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”.

49

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 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.

50

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 trial by evincing

intelligent active interest by putting questions to

witnesses in order to ascertain the truth. …”

(Emphasis supplied)

51

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.

52

(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.

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.

x x x x

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

53

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;

(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.

x x x x

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.

54

(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)

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

55

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

56

reference for confirmation of 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)]

57

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 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

58

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 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:-

59

“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 11-7-2007 (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

60

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 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)

61

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

62

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.

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 ve ry vigilant, cautious, fair and

impartial, and not to give even a slightest of impression that he

63

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

64

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 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

65

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

66

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 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

67

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.

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.

68

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.

……………………………………..J.

( B.R. GAVAI )

……………………………………..J.

( J.B. PARDIWALA )

….………………………..………..J.

(PRASHANT KUMAR MISHRA)

NEW DELHI;

SEPTEMBER 4 , 2023