જે.બી.પારડીવાળા સાહેબ એ કેસ ની ટ્રાયલ કેવી રીતે ચલાવવી તેની માર્ગદર્શિકા આપી – સુપીમ કોર્ટ

2023INSC793 

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 SC  469; Rama Shankar Singh @ Ram Shankar Roy v. State of  West Bengal, AIR 1962 SC 1239; and Bhupendra  Singh v. State of Punjab, AIR 1968 SC 1438. 

FACTS OF THE CASE 

3. The facts of the case as recorded by the High Court in its  impugned judgment are stated hereinbelow:- 

“3. Short fact of the case is that on 01.06.2015 at about  12:45 PM, fardbeyan of Kiran Devi (P.W.2) wife of Arvind  Sah and mother of the victim was recorded by Sub Inspector of Police-cum-S.H.O. Smt. Rita Kumari of Sabour  Police Station. The fardbeyan was recorded in the house  of Nawal Kishore Ojha @ Fuchan Pandey. Nawal Kishore  Ojha @ Fuchan Pandey is the own brother of the appellant  and in the said house, there were two rooms and one  room, from where dead body was recovered, was in  possession of the appellant. In the fardbeyan, the  informant/P.W.2 stated that on preceding date i.e.  31.05.2015, she was in the house of her late sister  Shakila Devi in the village Jamunia Parbatta. On the  same date at about 12:00 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 examination u/s 53A  CrPC is fatal to the case of the prosecution. 

2.1 Medical examination of the accused u/s 53A of  CrPC is required in cases of rape. Even though the  Appellant was taken to the hospital for the treatment of his injuries incurred during the time of arrest, he was not  subjected to any such medical examination where his  samples were collected for the purpose of DNA 

examination. 

2.2 In cases of rape where the victim is dead and the offence is sought to be established only bycircumstantial 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 examinationof 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 para49-57; 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 24.10.2016admitted that she followed the  instructions of her seniorpolice 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 evidenceat 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 thegrill 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  materialwitnesses 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 FucchanPandey 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 foundinside 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 otherwindow 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 waslocked 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, thevillagers Manoj, Anil and Murrai who allegedlysnatched 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 his313 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 keysto 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 theward 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 approachedhim 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 

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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 

20 

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 Pandey, whereas,  Pritam Tiwary had concealed himself in the room of  Fuchan. In paragraph 19 and 20 of her cross examination, P.W.2 denied the suggestion that lock of  two rooms were opened by Fuchan Pandey and denied  the suggestion that lock of the room of the Munna  Pandey (appellant) was also opened by Fuchan Pandey. In paragraph – 23 of her cross-examination, she said that  she may not say exact date of recording fardbeyan,  however; she said that she can say the day on which it  was recorded. She stated that Rita Madam i.e. P.W.5  had recorded fardbeyan and it was read over to her,  however; she was not recollecting exactly what was the  time. In paragraph 26 and 27 of her cross-examination,  she stated that after arrival of Fuchan, when he denied  regarding possession of the key, then the villagers  started assaulting Munna Pandey (appellant). She  stated that Pritam was apprehended by Vijay (P.W.6)  Babloo (P.W.1) and other villagers and they also slapped  Pritam. Again in paragraph – 28 of her cross-

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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 victim to  accompany him for witnessing T.V. programme inside  his house. At first instance, P.W.3, elder sister of the  victim, asked that she can go only after taking meal, but  that too was prevented by the appellant and he  (appellant) insisted and only thereafter, the victim, who  was aged about 11 years, had gone with the appellant  in the garb of witnessing T.V. programme in his house. In the evidence of P.W.2 informant/mother of the victim,  this fact has come that appellant was neighbour of the  informant and they were on visiting term. Meaning  thereby that at the time, when the appellant had called  the victim, there was nothing in the mind of the elder  sister that her younger sister aged about 11 years will  be raped by the appellant, who obviously on the date of  occurrence was neither young nor very old. From the  judgment of conviction and sentence, it appears that his  (appellant) age was assessed as 50 years. Meaning  thereby that beyond stretch of imagination, the elder 

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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, 

23 

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.

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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 

25 

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 

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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.

27 

(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 

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of Section 53-A and Section 164-ACrPC. We are not  going to the extent of suggesting that if there is no DNA  profiling, the prosecution case cannot be proved but we  are certainly of the view that where DNA profiling has  not been done or it is held back from the trial court, an  adverse consequence would follow for the prosecution.” 

81. It is necessary at this stage to note that by the very same Amendment Act 25 of 2005, by which Section 53-A was inserted, Section 164-A was also inserted in the  Code. While Section 53-A enables the medical  examination of the person accused of rape, Section 164-A  enables medical examination of the victim of rape. Both  these provisions are somewhat similar and can be said  approximately to be a mirror image of each other. But  there are three distinguishing features. They are: 

81.1 Section 164-A requires the prior consent of the  woman who is the victim of rape. Alternatively, the  consent of a person competent to give such consent on  her behalf should have been obtained before subjecting  the victim to medical examination. Section 53-A does  not speak about any such consent. 

81.2 Section 164-A requires the report of the medical  practitioner to contain among other things, the general  mental condition of the woman. This is absent in  Section 53-A. 

81.3 Under Section 164-A(1), the medical examination  by a registered medical practitioner is mandatory  when, “it is proposed to get the person of the woman  examined by a medical expert” during the course of  investigation. This is borne out by the use of the words,  “such examination shall be conducted”. In contrast,  Section 53-A(1) merely makes it lawful for a registered  medical practitioner to make an examination of the  arrested person if “there are reasonable grounds for  believing that an examination of his person will afford  evidence as to the commission of such offence”. 

82. In cases where the victim of rape is alive and is in a position to testify in court, it may be possible for the prosecution to take a chance by not medically examining  the accused. But in cases where the victim is dead and  the offence is sought to be established only by 

29 

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.” 
84. Thus, medical examination of an accused assumes great  importance in cases where the victim of rape is dead and the  offence is sought to be established only by circumstantial  evidence. 

FURTHER STATEMENT UNDER SECTION 313 CrPC 

30. The further statement of the appellant convict was  recorded under Section 313 CrPC. We were shocked to see the  manner in which the Trial Court recorded the further statement  of the appellant convict under Section 313 CrPC. In all, four  questions were put to the appellant convict to enable him to  explain the incriminating circumstances pointing towards his  complicity in the alleged crime. The questions are as under:-

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“(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.

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(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 

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the victim and elder daughter of PW 2 (first informant). Reading  the FIR and the police statements of the aforesaid witnesses left  us aghast. 

35. We first start with the FIR lodged by PW 2 which reads  thus:- 

“Fardbayan of Kiran Devi aged about 40 years w/o  Arvind Sah, at Thateri Tola, Police Station- Sabour,  District Bhagalpur recorded by S.I. cum S.H.O. Rita  Kumari Sabour P.S. in house of Naval Kishore Ojha @  Fuchan Pandey dated 01-06-15 at 12:45 P.M. 

My name is Kiran Devi, aged about 40 years old, w/o  Arvind Sah, Rio Thateri Tola Sabour Police Station- Saber,  District- Bhagalpur. I am giving this statement without  any pressure, in presence of the In-charge of Sabour  Police Station today on 01 June, 2015 at the house of  Naval Kishore (Fucchan Pandey) that yesterday on 31st May, 2015, I went to my late elder sister Sakila Devi’s  home situated in Jamunia Parbatta. In the meantime, at  about 12 pm, my elder daughter Priya Kumari informed  me through telephone that my younger daughter, X is  nowhere to be found. Then I left for Sabour immediately.  When I reached home, my elder daughter Priya informed  me that X went to watch TV at Munna Pandey’s home.  When she didn’t come back till 11 am then my elder  daughter called me. When I went to Munna Pandey’s  home to find X, I found that Munna Pandey’s house was  locked. We started searching for X along with our  relatives but X was nowhere to be found. When Munna  Pandey was asked to open the lock, he said that he docs  not have the keys. Then I called Munna Pandey’s brother  Fucchan Pandey who was at his in-law’s house (sasural). 

Today on 1st June, 2015, Naval Kishore Pandey @  Fucchan Pandey came at around 12 pm and opened the  lock of the room where it was found that Pritam Tiwari,  S/o Dilip Tiwari R/o Shobhapur, Police Station:  Rajmahal, District was hiding inside the room. The room  was locked from outside. When Munna Pandey’s room  was opened, the dead body of my daughter was found 

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under the bed. I am certain that Pritam Tiwari, s/o Dilip  Tiwari, r/o Shobhapur, Police Station: Rajmahal District  Sahebanj and Munna Pandey s/o Late Bir Bahadur  Pandey r/o Thatcri Tola, Police Station: Sabour, District  Bhagalpur, jointly conspired and had committed rape on  my 11 y/o daughter (X) and after that strangulated her  and killed her and then hid her dead body in the room. 

This is my statement which I heard and understood after  reading them I found the above statements correct and I  am putting my signature by my own will in the presence  of my sister’s son, Bablu Sah s/o Satish Sah r/o  Jamunia, Toana Parvata (Navaghchiya) Bhagalpur.”  

(Emphasis supplied) 

36. The further statement of Kiran Devi recorded by the police  under Section 161 CrPC reads thus:- 

“Further investigation of this case, the police re-recorded  the statement of complainant of this case – Kiran Devi,  aged about 40 years, W/o – Arvind Sah, R/o – Thatheri  Tola, PS – Sabour, District – Bhagalpur. Concurring with  the FIR, she stated in her statement that in the  neighborhood in front of her house lived two brothers – 

Munna Pandey 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 

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of Pritam Tiwary to watch TV. Pritam Tiwary had called  X to watch TV at his home at around 9 o’clock. When X  did not come home till eleven o’clock, her elder daughter  Priya went to the house of Pritam Tiwary to search for her.  At that time Pritam Tiwary was locking the door. When  she asked the whereabouts of X from Pritam Tiwary, he  told that she was not there. After that she went to a  mango orchard to look for her. She was not found there  also. Then Priya called all her relatives and went to  search her, but could not find her anywhere. Even after  such a hectic search, X was nowhere to be found. So we  all collectively decided to find Pritam Tiwary who was  also not to be found. The villagers became suspicious so  they all called Munna Pandey and asked him to open the  gate. But Munna Pandey declined to open the gates and  said that he did not have the keys to the lock. The local  villagers then telephoned Naval Pandey @ Fucchan  Pandey. At that time he was at his in-law’s place at  Shobhapur. When Munna Pandey declined to hand over  the keys, everybody became suspicious that Pritam  Tiwary was not there and it was very much possible that  he (Pritam Tiwary) did some occurrence with her  daughter. On 01-06-2015, Naval Kishore Ojha @ Fucchan  Pandey came with his wife and children and opened the  locks of the grill at about 12:00 noon. 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 

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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 

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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 her younger sister  deceased X had gone to the house of Fucchan Pandey to  watch TV. Pritam Tiwary, brother in law of (wife’s sister)  Phuchchan Pandey lived in that house. He had called X  to watch TV at his house. When X did not return even after  two hours, Priya (elder sister) went to the room of Pritam  Tiwary to call her. On asking Pritam Tiwary about the  whereabouts of X, he told that X had not come there. At  that time Pritam was locking the grills of the verandah.  Then she went to the nearby mango orchard to look for 

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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 

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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 

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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 

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diary or otherwise, or any part of such statement or  record, be used for any purpose, save as hereinafter  provided, at any inquiry or trial in respect of any offence  under investigation at the time when such statement was  made: 

Provided that when any witness is called for the  prosecution in such inquiry or trial whose statement has  been reduced into writing as aforesaid, any part of his  statement, if duly proved, may be used by the accused,  and with the permission of the Court, by the prosecution,  to contradict such witness in the manner provided by  section 145 of the Indian Evidence Act , 1872 (1 of 1872);  and when any part of such statement is so used, any part  thereof may also be used in the re-examination of such  witness, but for the purpose only of explaining any matter  referred to in his cross-examination. 

(2) Nothing in this section shall be deemed to apply to any  statement falling within the provisions of clause (1) of  section 32 of the Indian Evidence Act, 1872 (1 of 1872);  or to affect the provisions of section 27 of that Act. 

Explanation.–An omission to state a fact or circumstance  in the statement referred to in sub-section (1) may amount  to contradiction if the same appears to be significant and  otherwise relevant having regard to the context in which  such omission occurs and whether any omission amounts  to a contradiction in the particular context shall be a  question of fact.” 

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 

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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 

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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 

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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 

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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 

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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 

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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)

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“16. We are inclined to accept the argument of the  appellant that the language of Section 162, Criminal  Procedure Code, though wide, is not explicit or specific  enough to extend the prohibition to the use of the wide  and special powers of the Court to question a witness,  expressly and explicitly given by Section 165 of the Indian  Evidence Act in order to secure the ends of justice.  ….Therefore, we hold that Section 162, Criminal  Procedure Code, does not impair the special powers of the  Court under Section 165, Indian Evidence Act. …” 

 (Emphasis supplied) 

52. This Court in Dandu Lakshmi Reddy v. State of A.P.,  (1999) 7 SCC 69, it was held:-  

“20. It must now be remembered that the said procedure  can be followed only when a witness is in the box. Barring  the above two modes, a statement recorded under Section  161 of the Code can only remain fastened up at all stages  of the trial in respect of that offence. In other words, if the  court has not put any question to the witness with  reference to his statement recorded under Section 161 of  the Code, it is impermissible for the court to use that  statement later even for drawing any adverse impression  regarding the evidence of that witness. 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”.

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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.

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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) 
13. 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)

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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.

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(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 

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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.

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(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 

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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 

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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)]

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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 

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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:-

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“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 

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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)

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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 

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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 very vigilant, cautious, fair and  impartial, and not to give even a slightest of impression that he 

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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 

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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 

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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 

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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 

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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. 

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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

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