2023 LiveLaw (SC) 744 : 2023 INSC 793

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION
B.R. GAVAI; J., J.B. PARDIWALA; J., PRASHANT KUMAR MISHRA; J.
CRIMINAL APPEAL NOS. 1271-1272 OF 2018; SEPTEMBER 4, 2023
MUNNA PANDEY versus STATE OF BIHAR
Code of Criminal Procedure, 1973; Section 162 - There is 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 - 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. (Para 45-48)
Code of Criminal Procedure, 1973; Section 366-368 - In a reference for confirmation
of the sentence of death, the High Court is under an obligation to proceed in
accordance with the provisions of Sections 367 and 368 resply of the CrPC. Under
these Sections the High Court must not only see whether the order passed by the
Sessions Court is correct but it is under an obligation to examine the entire
evidence for itself, apart from and independently of the Sessions Court's appraisal
and assessment of that evidence - 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 - In this case, the court found 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 - remit the
matter back to the High Court for deciding the death reference. (Para 2, 57-60)
Code of Criminal Procedure, 1973; Section 53A - Failure to subject the accused to
medical examination by a medical practitioner - A serious flaw- 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. (Para
24-29)
Fair Trial - 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. (Para 64-72)
For Appellant(s) Ms. Aishwarya Saranga, Adv. Ms. Meghana Tm, Adv. Ms. Shivani Misra, Adv. Ms. Harini
Raghupathy, Adv. Mr. Kabir Dixit, AOR
For Respondent(s) Mr. Samir Ali Khan, AOR Mr. Pranjal Sharma, Adv.
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 JUDGMENT
J.B. PARDIWALA, J. :
“A fair trial is one in which the rules of evidence are honored, the accused has competent
counsel, and the judge enforces the proper court room procedures - a trial in which every
assumption can be challenged.”
─ Harry Browne
1. These appeals are at the instance of a convict accused sentenced to death for the
offence of rape and murder of a 10-year old girl named “X” and are directed against a
common judgment and order passed by the High Court of Judicature at Patna dated
10.04.2018 in the Death Reference No. 4 of 2017 with Criminal Appeal (DB) No. 358 of
2017 by which the High Court dismissed the Criminal Appeal filed by the appellant convict
herein and thereby confirmed the judgment of conviction and sentence of death passed
by the Additional Sessions JudgeI, Bhagalpur in the Sessions Trial No. 581 of 2015 for the
offence punishable under Sections 302 and 376 resply of the Indian Penal Code (for short,
‘IPC’) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (for
short, ‘POCSO Act’).
2. Before we proceed to give a fair idea as regards the prosecution case, it has to be
mentioned that the High Court had before it not only the appeal filed by the accused but
also a reference made by the Sessions Court for confirmation of the capital sentence
under Section 366 of the Code of Criminal Procedure, 1973 (CrPC). Time and again this
Court has pointed out that on a reference for confirmation of the sentence of death, the
High Court is under an obligation to proceed in accordance with the provisions of Sections
367 and 368 resply of the CrPC. Under these Sections the High Court must not only see
whether the order passed by the Sessions Court is correct but it is under an obligation to
examine the entire evidence for itself, apart from and independently of the Sessions
Court's appraisal and assessment of that evidence. From the long line of decisions which
have taken this view it would be enough to refer to the decisions in Jumman v. State of
Punjab, AIR 1957 SC 469; Rama Shankar Singh @ Ram Shankar Roy v. State of West
Bengal, AIR 1962 SC 1239; and Bhupendra Singh v. State of Punjab, AIR 1968 SC
1438.
FACTS OF THE CASE
3. The facts of the case as recorded by the High Court in its impugned judgment are
stated hereinbelow:-
“3. Short fact of the case is that on 01.06.2015 at about 12:45 PM, fardbeyan of Kiran Devi (P.W.2)
wife of Arvind Sah and mother of the victim was recorded by SubInspector 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 (appellant) was locked.
Thereafter, with some villagers, the informant vigorously searched her daughter, but she (victim)
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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 0106-2015, 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).
5. On conclusion of the investigation, charge sheet was filed against the appellant
herein and the co-accused named above. As the offence was exclusively trialable by a
Sessions Judge, the case stood committed by the Magistrate to the Court of Sessions
under the provisions of Section 209 of the CrPC and upon committal, the same came to
be registered as the Sessions Trial No. 581 of 2015 in the Court of the First Additional
District and Sessions Judge, Bhagalpur.
6. The Trial Court framed charge vide order dated 04.11.2015 against the appellant
and the co-accused for the offence punishable under Sections 376(2)(g), 302 read with
Section 34, 120B of the IPC and Section 4 of the POCSO Act.
7. After framing of the charge, the co-accused namely Pritam Tiwari raised the plea of
being a juvenile. In such circumstances, his case was separated vide order dated
03.02.2016 passed by the Trial Court and was referred to the Juvenile Justice Board,
Bhagalpur. The Trial Court proceeded only against the appellant convict herein.
8. In the course of the trial, the prosecution led the following oral evidence:-
(a) PW 1 Babloo Saw is the cousin brother of the deceased and son of sister of the
First Informant at whose place, the informant had gone on 31.05.2015. This witness
proved his signature on the fardbeyan, which was marked as Ext. 1 and he also proved
the signature of Kiran Devi/P.W.2 (informant) of the case, which was marked as Ext. 1/1.
(b) PW 2 Kiran Devi is the informant and mother of the deceased.
(c) PW 3 Priya Kumari is the elder daughter of the informant and also the elder sister
of the deceased.
(d) PW 4 Dr. Sandeep Lal, who at the relevant time, was posted in the Jawaharlal Nehru
Medical College and Hospital, Bhagalpur conducted the post-mortem examination on the
dead body of the deceased.
(e) PW 5 Rita Kumari is the investigating officer and she recorded the fardbeyan of the
informant.
(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.
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9. Upon conclusion of recording of the oral evidence, the further statement of the
appellant convict was recorded by the Trial Court under Section 313 of the CrPC. The
appellant convict stated as under:-
“I am innocent. I have been falsely implicated. I was not living in the house from where the dead
body was recovered. I was residing in a rented house situated in Mali Tola. I executed a deed in
favour of my brother Fuchan Pandey relating to an parental house situated at Thatheri Tola and
my brother Fuchan Pandey was living in the house from where the dead body was recovered.”
10. Upon appreciation of the oral and documentary evidence on record, the Trial Court
recorded a finding that the appellant herein was guilty of the offence he was charged with.
The Trial Court treated the case as one falling under the category of “rarest of the rare
cases” and sentenced the appellant to death.
11. The appellant herein being aggrieved with the judgment and order of conviction and
capital sentence passed by the Trial Court went in appeal before the High Court. The High
Court dismissed the appeal filed by the appellant convict and confirmed the capital
sentence imposed by the Trial Court in the Death Reference No. 4 of 2017.
12. In such circumstances referred to above, the appellant convict is here before this
Court with the present appeals.
SUBMISSIONS OF THE APPELLANT
13. Dr. Aditya Sondhi, the learned senior counsel appearing for the appellant convict,
made the following submissions:-
“1 . Case purely of circumstantial evidence
1.1 The case against the Appellant, Munna Pandey is based only on the last seen evidence and
the conduct of the Appellant and hence entirely circumstantial in nature. It is a well established
principle settled by this Hon’ble Court that in cases of circumstantial evidence, the circumstances
against the accused ought to be conclusive in nature and there must be a chain of evidence so
complete as not to leave any reasonable ground for the conclusion consistent with the innocence
of the accused and must show that in all human probability the act must have been done by the
accused.
2. Failure to conduct medical examination u/s 53A CrPC is fatal to the case of the
prosecution.
2.1 Medical examination of the accused u/s 53A of CrPC is required in cases of rape. Even
though the Appellant was taken to the hospital for the treatment of his injuries incurred during the
time of arrest, he was not subjected to any such medical examination where his samples were
collected for the purpose of DNA examination.
2.2 In cases of rape where the victim is dead and the offence is sought to be established only
by circumstantial evidence, medical evidence assumes great importance. The failure of the
prosecution to subject the appellant to medical examination is fatal to the prosecution’s case.
(Chotkau v State of Uttar Pradesh 2022 SCCOnline SC 1313 para 81,82)
2.3 If no DNA examination is conducted and if no reasonable explanation is provided by the
prosecution for not conducting a DNA examination, adverse consequences would fall on the
prosecution. Moreover, if reasonable grounds for believing that an examination of the accused
will not afford evidence as to the commission of an offence, it is quite unlikely that a charge-sheet
would even be filed against the accused for committing an offence of rape. (Rajendra Prahladrao
Wasnik v State of Maharashtra (2019) 12 SCC 495 para 49-57; Prakash Nishad @ Kewat v State
of Maharashtra 2023 SCCOnline SC 666 para 57,58.59)

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3. Prosecution did not place on record the exculpatory evidence against the Appellant
3.1 The underwear of the Appellant was seized by the police on 01.06.2023 at 11:45 pm [Ex 6
(Seizure memo)], and the underwear of the deceased was seized on 01.06.2015 at 11:00 pm
[Ex 6/1 (Seizure memo)]. However, the prosecution failed to prove if they were sent to the
Forensic Science Laboratory for examination.
3.2 As per the order dated 29.06.2015, a letter on behalf of the officer in-charge of PS Sabour
was filed before the Ld Trial Court seeking permission to send the articles to FSL Patna for
examination. However PW5, Reeta Kumari, the IO in her cross examination before the Trial Court
on 24.10.2016 admitted that she followed the instructions of her senior police officer and did not
receive any FSL report. [PW5 para 8]
3.3 Further the vaginal swab of the deceased collected at the time of post-mortem was sent by
PW 4, Dr Sandeep Lal to the pathology lab for examination. [Ex 2 (Post- mortem report)].
However, the pathological report which states that ‘spermatozoa not found’ was not produced by
the prosecution as evidence at the time of trial.
4. Last seen evidence not conclusively proved against the Appellant
4.1 All the witnesses in their 161 statement stated that the victim was last seen with Pritam Tiwari.
However, PW1, PW2 and PW3 in their Court testimony, which was recorded 3 months after Pritam
Tiwari was declared a Juvenile by the Juvenile Justice Board [Ex A (order of the JJB)] improved
their statement and said that it was Munna Pandey and not Pritam Tiwari. However, this was not
corroborated by the independent witness Vijay Sah (PW6). The said improvement on the part of
the interested witnesses could be motivated by the fact that Pritam Tiwari (who was caught red
handed) was now only going to be subjected to a lenient punishment under the Juvenile Justice
Act, 2000 and therefore the Appellant alone remained accused in the subject case.
4.2 There are material contradictions in PW3’s court testimony and her 161 statement. In her 161
statement she states that Pritam Tiwari came to her house at 09:00 am and took the victim along
with him to watch TV and after 2 hours she saw Pritam Tiwari locking the grill of the verandah.
Whereas in her Court testimony, she states that Munna Pandey was last seen with the victim.
PW3 was confronted with this particular contradiction by the defense counsel during her cross-
examination but PW3 does not provide any reason for the said contradiction.
4.3 PW2 in her Fardbeyan [Ex 1] which was recorded right after the victim’s body was recovered
does not mention anything about the Appellant in the context of a last seen evidence but improves
her testimony in Court to state that the Appellant was last seen with the victim. PW2 was
confronted with this improvement in her cross examination, where she merely stated that she had
told that Munna Pandey had spoken to her daughter PW3 and that she did not state in her
fardbeyan that PW3 saw Munna Pandey locking the door. This Hon’ble Court has held that
especially in cases involving heinous crimes, where there is inadequate cross-examination by the
defense counsel, the Trial Courts cannot be a mute spectator and they have the power and duty
under Section 165 of the Evidence Act, 1872 to discover relevant facts when witnesses are not
properly cross-examined.(Rahul v State of NCT of Delhi (2023) 1 SCC 83 para 42-45)
4.4 As per the case of the prosecution, on 31.05.2015 at 09:00 when the Appellant came to the
house of PW3 to take the victim, the following persons were in the house - the victim, PW3 and
Kushboo Devi (her aunt). However Kushboo Devi, the aunt was not examined as a last seen
witness but only PW3 (a minor) was examined by the prosecution to prove its case.
4.5 In cases where the child witness’s testimony regarding last seen evidence is inconsistent and
when the material witnesses are not examined by the prosecution, the Court has rightly
disbelieved the last seen evidence. (Digamber Vaishnav v State of Chhatisgarh (2019) 4 SCC
522 para 40-43)

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5. Conduct of the accused at the relevant time
5.1 Frequent quarrels used to take place between Naval Kishore Ojha @ Fucchan Pandey and
Munna Pandey and hence they have been residing separately. Munna Pandey was residing
separately in a different house in Mali Tola. Fuchhan Pandey handed over the key to his house
to Pritam Tiwari and Pritam Tiwari was residing in the house of Fucchan Pandey for the past 2 to
3 months. Further, Munna Pandey was called from elsewhere by the villagers every time,
indicating that he did not reside in the said house.
5.2 As per the spot map and the spot mahazar, the building consists of an outer iron grill door, a
verandah, 1 room in the north and 1 in the south. The room in the north belongs to Fuchhan
Pandey and the room in the south belongs to Munna Pandey. Pritam was found inside the room
of Fucchan Pandey and the victim was found in the room of Munna Pandey. The room of Munna
Pandey also had 2 windows without any iron grill but only an outer wooden panel which was open.
One window opened to the verandah and the other window opened towards the main road. The
TV was in the room of Fucchan Pandey where Pritam was admittedly residing.
5.3 The lock of the outer iron grill was broken open by the villagers. The room of Fuchhan Pandey,
where Pritam Tiwari was present was locked from inside. The door of Munna Pandey’s room was
opened by the keys brought by Fuchhan Pandey on 01.06.2015 [Ex 1].
5.4 As per the case of the prosecution, the door of Munna Pandey’s room was opened by the
villagers after they snatched the keys from Munna Pandey although he claimed that he did not
have the keys to the house on the previous day. As per the prosecution, this raised serious doubts
regarding his conduct. It is pertinent to note that this suspicious conduct is not corroborated by
the independent witness PW6. Further, the villagers Manoj, Anil and Murrai who allegedly
snatched the keys from Munna Pandey were not examined by the prosecution. It is pertinent to
note that Munna Pandey did not flee from the village overnight or on the next day when the dead
body of the victim was recovered. Further this particular circumstance that the Appellant refused
to give the keys to the villagers and threatened them with a case of dacoity was not put to him
during his 313 statement. This Hon’ble Court has repeatedly held that the circumstances not put
to the accused in his 313 examination cannot be relied upon.(Sharad Birdichand Sarda v State
of Maharashtra (1984) 4 SCC 116 para 145)
6. Alleged Confession of Pritam Tiwari implicating Munna Pandey cannot be relied upon
6.1 As per the prosecution, right after Pritam Tiwari was found in the house of Fucchan Pandey
by the villagers; he confessed to his crime and stated that he along with Munna Pandey committed
the offence against the deceased. However, the said confession was made after he was beaten
by the police officers and was made in the presence of police officers. Due to the bar u/s 26 of
the Evidence Act, the said confession cannot be relied upon the Courts. Further this alleged
confession is not corroborated by the testimony of the independent witness Vijay Sah (PW6).
Pritam Tiwari was also not deposed as a witness in this regard.
7. 313 examination of the Appellant was not conducted in a proper manner
7.1 Many crucial circumstances were not put to the Appellant in his 313 examination, though were
considered as incriminating for the purpose of holding the appellant guilty of the offence. Those
are as under:-
● The circumstance of PW3 seeing the Appellant lock the grill and the door of his room
● The circumstance that the Appellant gave false information to PW3 that the victim had
already left after watching TV
● The circumstance of the accused refusing to open the door as he did not have the key
● The circumstance of the Appellant giving the keys to the villagers after he was assaulted
● The circumstance of the alleged extra-judicial confession made by the co-accused Pritam
Tiwari implicating the Appellant
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7.2 This Hon’ble Court has consistently held that the circumstances not put to the Appellant
cannot be relied upon to convict an accused
8. Flaws in the judgment of the Trial Court and the High Court
8.1 The Trial Court in its judgment makes only a brief discussion of the evidence and erroneously
records that Pritam Tiwari and Munna Pandey were found inside the house.
8.2 The High of Judicature at Patna, in the impugned judgment [at para 9]; observes that it is
prima facie satisfied that the Trial Court has not committed any error in both convicting the
Appellant and sentencing him to death. In its said prima facie opinion on the matter it heavily
relies on the deposition of interested witnesses PW1, PW2 and PW3 all of whom improved their
versions. The High Court has disregarded the evidence of the independent witness and also the
absence of material evidence, compliance with section 53A requirements, the absence of FSL
report and pathological report. Hence the said judgment suffers from perversity and is contrary to
the law
9. Mitigation
9.1 Without prejudice to the above submissions on merits, the Courts below have incorrectly
sentenced the Appellant to undergo the sentence of death.
9.2 The Appellant has filed a mitigation report along with the affidavits of the family members and
the villagers before this Hon’ble Court vide IA No 172211 of 2022. The following are the mitigating
circumstances of the Appellant:
(i) No criminal antecedents;
(ii) Satisfactory jail conduct as certified by the Superintendent of Shahid Jubba Sahni Central
Jail, Bhagalpur;
(iii) Family impact - since his arrest, his family including his wife Sangeeta and his 2 sons -
Krishna (18 years at the time of incident) and Balram (12 years at the time of incident) were
ostracized from the village and they have been residing with Sangeeta’s parents in village
Panchkathiya, Bihar
(iv) Continued family ties
(v) Strong community links - Munna Pandey’s wife Sangeeta was elected as the ward
councilor in 2010. As per the affidavit of Mohd. Aktar @ Pairu Miyan (resident of village Sabour)
the Appellant worked actively for the community alongside his wife. He was considered
resourceful and many villagers approached him with their problems in the village.
(vi) Age of the Appellant - he is currently 56 years old
(vii) Strong probability of reformation”
(Emphasis supplied)
14. In such circumstances, referred to above, the learned counsel prayed that there
being merit in his appeals, the same be allowed and the judgment and order of conviction
and capital sentence be set aside and the appellant may be acquitted of all the charges.
SUBMISSIONS ON BEHALF OF THE PROSECUTION
15. On the other hand, these appeals were vehemently opposed by Mr. Samir Ali Khan,
the learned counsel appearing on behalf of the State. He submitted that no error, not to
speak of any error of law, could be said to have been committed by the Courts below in
holding the appellant guilty of the offence charged with and treating the case to be one
falling under the category of “rarest of the rare cases”.
16. The learned counsel laid much stress on the fact that it was the appellant who visited
the house of the victim at 9 o’clock in the morning of 31.05.2015 and lured the victim to
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come to his house to watch TV. It was argued that all the witnesses have deposed that
the victim went to the house of the appellant in the morning on 31.05.2015 to watch TV
and thereafter she went missing. He submitted that the sister of the victim namely Priya
Kumari (PW 3) immediately informed her mother Kiran Devi (PW 2) who at the relevant
point of time was at the house of her sister at a different village. No sooner the mother of
the victim came to know that her daughter was missing, then she immediately rushed back
to her house and started enquiring as regards the whereabouts of her minor daughter. It
was argued that the victim could be said to have been last seen with the appellant. It was
also argued that when the house was opened, the dead body of the victim was recovered
beneath a cot and the room from where the dead body was recovered was of the
ownership of the appellant. He submitted that it was for the appellant to explain, how the
dead body of the victim was recovered from the room of his house over which he had full
control. It was also argued that the PW 3 Priya Kumari in her deposition stated that she
had seen the appellant locking the door of his room. This is suggestive of the fact that the
keys of the room were with the appellant. The learned counsel submitted that the facts
established are consistent only with the hypothesis of the guilt of the appellant convict and
are of a conclusive nature and tendency. He submitted that the chain of evidence is so
complete that it does not leave any reasonable ground for the conclusion consistent with
the innocence of the accused.
17. In such circumstances referred to above, the learned counsel prayed that there
being no merit in these appeals, those may be dismissed.
ANALYSIS
18. Having heard the learned counsel appearing for the parties and having gone
through the materials on record, the only question that falls for our consideration is
whether the High Court committed any error in passing the impugned judgment?
19. The case on hand is one of a very gruesome rape and murder of a 10-year old girl.
It is the case of the prosecution that on the fateful day the victim had gone to the house of
the appellant to watch TV. According to the prosecution, it is the appellant who came to
the house of the victim and persuaded her to come at his house to watch TV. The elder
sister of the victim, PW 3 Priya Kumari was at home when her younger sister left for the
house of the appellant to watch TV. When the younger sister did not come back to her
house, Priya Kumari started searching for her and as her efforts failed to know the
whereabouts of her younger sister, she immediately informed her mother Kiran Devi (the
first informant). At the relevant time, Kiran Devi was at the house of her elder sister namely
Shakila Devi at Jamunia Parbatta. The PW1 Babloo Saw is the son of Shakila Devi. The
PW 2 Kiran Devi happens to be the mousi of PW 1 Babloo Saw. It is the case of the
prosecution that while Kiran Devi was at the house of her elder sister Shakila Devi, she
was informed by Priya Kumari on telephone that the victim had gone to the house of the
appellant in the morning to watch TV and thereafter she went missing. It was PW 1 Babloo
Saw who brought Kiran Devi on his motorcycle back to her village i.e. her house.
20. We shall now look into the findings recorded by the High Court in its impugned
judgment. To put it in other words, the circumstances relied upon by the High Court and
the line of reasoning to hold the appellant herein guilty of the alleged crime is as follows:-
“9 . … To start with, it would be firstly necessary to examine the first hand information, which has
come from the mouth of elder daughter of the informant i.e. P.W.3 namely Priya Kumari. She was
the main witness, who had seen that appellant had persuaded and enticed the victim to go with
him on the pretext of witnessing T.V. serial.

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10. … Munna Pandey (appellant) carried the victim, at that time, it was about 9:00 AM
(morning). After preparing food, she went to call the victim to the house of Munna Pandey
(appellant), then she saw that Munna Pandey (appellant) was putting lock on his door. She saw
that Munna Pandey (appellant), after putting lock on his room, was coming out. When she reached
near the gate, till that time, Munna Pandey (appellant), after putting lock on gate also, was trying
to move, then she asked Munna Pandey as to where is the victim, Munna Pandey (appellant)
replied that she, after witnessing T.V., had already gone. P.W.3 thereafter returned back to her
house and tried to search nearby. When she did not find the victim then she made telephone call
to her mother (P.W.2, Kiran Devi) and informed her. Her mother on the same date came back with
her (Priya) cousin brother Babloo (P.W.1). Again, this witness narrated everything to her mother.
Thereafter, she, her mother, aunt and cousin brother Babloo, all jointly started to search, but the
victim was not traced, then they went to the house of Munna Pandey (appellant), where it was
noticed that there was lock on the room of Munna Pandey (appellant). Outer gate was also locked.
Thereafter, she inquired from other villagers, on which, villagers called Munna Pandey, then he
came. The appellant was inquired by villagers and her mother (P.W.2) also regarding the victim.
The appellant said that he was not having the key of the room. After noticing this fact, the villagers
said that if he was not having key, they will break the lock. On which, the appellant threatened
them for implicating in dacoity case, if lock is broken. Munna Pandey (appellant) also stated that
Pritam (co-accused) was also not being located and he said that it appears that he had gone
somewhere with the victim. On the strength of such statement of Munna Pandey (appellant), they
started to search Pritam also, however; he could not be traced and thereafter, they returned back
to their house and again they went to the house of Munna Pandey (appellant), where she noticed
that some light was coming from inside the house of Fuchan Pandey. Thereafter, the villagers
raised some suspicion, as if, in the room, there was someone. Munna Pandey (appellant) was
again asked to break the lock, then he said that key was lying with Fuchan Pandey. Villagers
thereafter telephoned Fuchan, at that very time, he was in his in-laws’ house. Fuchan over
telephone informed that in the morning, he would come. Since by 8:00 AM, Fuchan did not arrive,
P.W.3 with her mother went to Sabour Police Station, however; in the meanwhile, Fuchan reached
to his house. Villagers by using force also pushed Munna and carried him to the said place.
Thereafter, police also arrived there. Lock of outer gate was broken. Thereafter, the key of the
room was provided by Munna Pandey (appellant). From the room of Fuchan, Pritam Tiwary came
out. In presence of the Police and villagers, Pritam was inquired as to where was the victim, then
he explained that victim was in the room of Munna Pandey (appellant). Pritam also said that he
and Munna Pandey both had jointly raped the victim and thereafter, killed her. Dead body of the
victim was found beneath the bed of Munna Pandey (appellant). Her body was undressed. Her
urinal portion was swollen and blood had come out. She had also dispersed her waste (potty) and
it was also swollen. Police carried the dead body. She claimed to identify both accused persons,
which includes appellant. In cross-examination in paragraph – 2, she stated that her father was
living in Gujarat. She further stated that Fuchan Pandey is also known as Nawal Kishore Ojha. In
paragraph – 7 of her cross-examination, she claimed that she had seen television in the room,
where there was a bed, almirah including fan. In paragraph – 8, she further stated that she was
visiting the said room and stated that Munna Pandey (appellant) was her neighbour. In paragraph
– 9, she explained that in search of the victim, they had gone to several places including block,
chowk, station Sabour etc. In paragraph 12, she stated that Fuchan Pandey and Munna Pandey
(appellant) were the full brothers and both brothers were having one room each in their share.
She stated in paragraph 12 that Munna Pandey (appellant) was virtually residing somewhere else
and usually he was visiting to his room (place of occurrence). She further stated that she was not
knowing about the rented house of Munna Pandey (appellant). Again, in paragraph 12 itself, she
deposed that earlier there was no complaint against Munna Pandey (appellant). It is necessary
to indicate that there was no complaint against the appellant prior to the occurrence, which
suggests that it 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
9
she had given false evidence and falsely implicated the appellant. On examination of entire
evidence of P.W.3, it is evident that though this witness was cross-examined at length, nothing
could be extracted to create any doubt on her evidence.
11. … Munna Pandey (appellant) was also called by villagers. When the villagers asked
Fuchan to open lock, Fuchan replied that he was not having key. Villagers thereafter started to
assault Munna Pandey and asked him to break the lock. When villagers broke one of the lock,
then Munna Pandey (appellant) took out the key and from that key, lock of Fuchan’s door was
opened, however; the room was closed from inside. When the door was pushed, it was opened
by Pritam and he concealed himself. All villagers entered into the house. Police also arrived.
Pritam was apprehended. When Pritam was being assaulted, police had arrived there. Lock of
room of Munna was also opened by the villagers. From the room of Munna Pandey (appellant),
dead body of the victim was recovered. Age of victim was 11 years old and dead body was kept
beneath the bed and police took out the dead body from beneath the bed. The informant started
crying. She further stated that the cloth of her daughter from lower portion was removed. She
noticed that urinal portion of her daughter was ruptured and she also noticed potty there. She
stated that the anus was also ruptured. The face was swollen and on cheek also, there was sign
of injury. Villagers thereafter started to assault Munna, Pritam and Fuchan. Pritam, in presence of
the Police, stated that he and Munna Pandey both jointly had committed the crime. This witness
stated that her fardbeyan was recorded by the police at the place of occurrence itself and she
identified her signature as well as signature of Babloo (P.W.1) on the fardbeyan. Signature was
identified as Ext. 1/1. she claimed to identify Pritam and Munna Pandey (appellant). At the time
of cross-examination, it was noticed by the Trial Judge that this witness was very much nervous
and also she was repeatedly weeping and this was 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
crossexamination, 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

10
16. On examination of entire evidence, it is established that the learned Trial Judge has rightly
held the appellant guilty for commission of offence under Sections 302 and 376 of the Indian
Penal Code. The learned Trial Judge, after convicting the appellant by its judgment dated
02.02.2017, deferred the date of sentence and after reasonable time, on 23.02.2017, the learned
Trial Judge, after hearing both the parties and balancing the aggravating and mitigating
circumstances, had come to the conclusion that it was a fit case for imposing death sentence and
thereafter, death sentence was imposed and it was referred to this Court under Section 366 of
the Cr.P.C. for its confirmation.
17. The evidence of P.W.3 is very much specific that on the date of occurrence in the morning,
this appellant had reached the house of the informant, whereas, at that very time, P.W.3 was
preparing food. In her presence, this appellant asked, rather lured the victim to accompany him
for witnessing T.V. programme inside his house. At first instance, P.W.3, elder sister of the victim,
asked that she can go only after taking meal, but that too was prevented by the appellant and he
(appellant) insisted and only thereafter, the victim, who was aged about 11 years, had gone with
the appellant in the garb of witnessing T.V. programme in his house. In the evidence of P.W.2
informant/mother of the victim, this fact has come that appellant was neighbour of the informant
and they were on visiting term. Meaning thereby that at the time, when the appellant had called
the victim, there was nothing in the mind of the elder sister that her younger sister aged about 11
years will be raped by the appellant, who obviously on the date of occurrence was neither young
nor very old. From the judgment of conviction and sentence, it appears that his (appellant) age
was assessed as 50 years. Meaning thereby that beyond stretch of imagination, the elder sister
was not having any apprehension that her minor sister can be raped by a person, who was
neighbour and aged about approaching 50 years. This was the reason that victim was allowed to
move with the appellant. The victim, who was aged about 11 years, was also oblivious of the fact
that as to what was occurring in the mind of the appellant. After she was carried to the room and
within few hours, when P.W.3 (elder sister of the victim) went to the house of the appellant, she
noticed that this appellant after locking the door was coming out. This was not the end, even on
inquiry, this appellant gave false declaration that victim had already left after witnessing T.V.
programme. Again the criminal mind of the appellant was operating and this was the reason that
even though, he had already committed rape and murder of 11 years old girl and concealed the
dead body inside his room, he gave false information to the elder sister of the victim (P.W.3).
Since the victim could not be traced by P.W.3 (Priya), the P.W.3 who was aged about 15-16 years
old, and this was the reason that she was not in a position to take any further decision and she
immediately ranged her mother (informant), who had gone to village Jamunia, which was about
22 km. away from the village Sabour. She informed her mother regarding missing of the victim
and she also explained regarding other circumstances, which were sufficient to raise suspicion
on the appellant. Thereafter, the informant from Jamunia came on a motorcycle with son of her
late sister P.W.1 (Babloo Saw) and all of them again went to the house of the appellant and this
time they noticed that house as well as outer gate of the appellant was locked and there was
none, then the search was made for the victim. Subsequently, villagers called the appellant, who
disclosed that he was not having the key and he pretended, as if, key was left with his brother
Fuchan Pandey, who was away and staying in his in-laws house. This time again this appellant
gave false information. By way of searching, day time had come to end of the day and in the
evening, informant side and villagers noticed some light coming from the house of the appellant,
then suspicion got strengthened. Thereafter, again the villagers called the appellant for opening
the door. On his denial, the villagers told that they will break the lock of the door, in that event,
this appellant threatened the villagers that if lock is broken, he will file a case of dacoity against
them. All those things depict about the criminal mind of the appellant. Only in the next morning,
when his brother Fuchan arrived, who was telephonically asked to come, and he disclosed that
he was not having the key, the villagers started 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.”
11
 (Emphasis supplied)
21. Thus, all throughout, the High Court proceeded on the footing that it was the
appellant convict who came to the house of the victim in the morning of 31.05.2015 and
lured her to come to his house to watch TV. The High Court took the view that since the
dead body of the victim was recovered from the room owned by the appellant and he was
seen by the PW 3 Priya Kumari locking the door attached to his house, it could be none
other than the appellant who could be said to have committed the crime. The High Court
completely forgot that there was a co-accused also namely Pritam Tiwari in the picture.
Pritam Tiwari being a juvenile was tried in accordance with the provisions of the Juvenile
Justice Act, 2015 and was held guilty and sentenced to three years imprisonment.
FSL REPORT NOT OBTAINED:
22. We noticed few very serious lapses in the entire investigation and, more particularly,
the oral evidence of the investigating officer PW 5 Rita Kumari disturbed us a lot. The
investigating officer in her cross examination deposed that in accordance with the order
dated 29.06.2015 a letter on behalf of the officer-in-charge of the Police Station, Sabour,
was filed before the Trial Court seeking permission to send the muddamal articles to the
Forensic Science Laboratory (FSL), Patna for examination. However, the PW 5 Rita
Kumari in her cross examination before the Trial Court admitted that following the
instructions of her senior officers, she did not take any steps to procure FSL report. Who
are these senior officers of PW 5 and why they instructed the PW 5 not to procure the FSL
report should have been a subject matter of inquiry by both, the State as well as the trial
court.
23. The aforesaid lapse is just a tip of the iceberg. We are at pains to state that it is a
very serious flaw on the part of the investigating officer and that too in such a serious
matter.
FAILURE TO CONDUCT MEDICAL EXAMINATION
24. One another serious flaw in the present case on the part of the investigating officer
that has come to our notice is the failure to subject the appellant to medical examination
by a medical practitioner. No explanation, much less any reasonable explanation, has
been offered for such a serious flaw on the part of the investigating officer.
25. Section 53(1) of the CrPC enables a police officer not below the rank of sub-
inspector to request a registered medical practitioner, to make such an examination of the
person arrested, as is reasonably necessary to ascertain the facts which may afford such
evidence, whenever a person is arrested on a charge of committing an offence of such a
nature that there are reasonable grounds for believing that an examination of his person
will afford evidence as to the commission of an offence. Section 53(1) reads as follows:-
“Section 53. Examination of accused by medical practitioner at the request of police
officer.—(1) When a person is arrested on a charge of committing an offence of such a nature
and alleged to have been committed under such circumstances that there are reasonable grounds
for believing that an examination of his person will afford evidence as to the commission of an
offence, it shall be lawful for a registered medical practitioner, acting at the request of a police
officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and
under his direction, to make such an examination of the person arrested as is reasonably
necessary in order to ascertain the facts which may afford such evidence, and to use such force
as is reasonably necessary for that purpose.”

12
26. By Act 25 of 2005, a new Explanation was substituted under Section 53, in the place
of the original Explanation. The Explanation so substituted under Section 53 by Act 25 of
2005 reads as follows:-
“Explanation.—In this section and in Sections 53A and 54—
(a) “examination” shall include the examination of blood, blood stains, semen, swabs in case
of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern
and scientific techniques including DNA profiling and such other tests which the registered
medical practitioner thinks necessary in a particular case;
(b) “registered medical practitioner” means a medical practitioner who possess any medical
qualification as defined in clause (h) of Section 2 of the Indian Medical Council Act, 1956 (102 of
1956) and whose name has been entered in a State Medical Register.”
27. Simultaneously with the substitution of a new Explanation under Section 53, Act 25
of 2005 also inserted a new provision i.e. Section 53A. Section 53A reads as follows:-
“Section 53A. Examination of person accused of rape by medical practitioner.—(1) When a
person is arrested on a charge of committing an offence of rape or an attempt to commit rape and
there are reasonable grounds for believing that an examination of his person will afford evidence
as to the commission of such offence, it shall be lawful for a registered medical practitioner
employed in a hospital run by the Government or by a local authority and in the absence of such
a practitioner within the radius of sixteen kilometers from the place where the offence has been
committed by any other registered medical practitioner acting at the request of a police officer not
below the rank of a Sub-Inspector, and for any person acting in good faith in his aid and under his
direction, to make such an examination of the arrested person and to use such force as is
reasonably necessary for that purpose.
(2) The registered medical practitioner conducting such examination shall, without delay,
examine such person and prepare a report of his examination giving the following particulars,
namely—
(i) the name and address of the accused and of the person by whom he was brought,
(ii) the age of the accused,
(iii) marks of injury, if any, on the person of the accused,
(iv) the description of material taken from the person of the accused for DNA profiling, and
(v) other material particulars in reasonable detail.
(3) The report shall state precisely the reasons for each conclusion arrived at.
(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)

13
“54. For the prosecution to decline to produce DNA evidence would be a little unfortunate
particularly when the facility of DNA profiling is available in the country. The prosecution would be
well advised to take advantage of this, particularly in view of the provisions of Section 53-A and
Section 164-ACrPC. We are not going to the extent of suggesting that if there is no DNA profiling,
the prosecution case cannot be proved but we are certainly of the view that where DNA profiling
has not been done or it is held back from the trial court, an adverse consequence would follow
for the prosecution.”
81. It is necessary at this stage to note that by the very same Amendment Act 25 of 2005, by
which Section 53-A was inserted, Section 164-A was also inserted in the Code. While Section 53-
A enables the medical examination of the person accused of rape, Section 164-A enables medical
examination of the victim of rape. Both these provisions are somewhat similar and can be said
approximately to be a mirror image of each other. But there are three distinguishing features.
They are:
81.1 Section 164-A requires the prior consent of the woman who is the victim of rape.
Alternatively, the consent of a person competent to give such consent on her behalf should have
been obtained before subjecting the victim to medical examination. Section 53-A does not speak
about any such consent.
81.2 Section 164-A requires the report of the medical practitioner to contain among other things,
the general mental condition of the woman. This is absent in Section 53-A.
81.3 Under Section 164-A(1), the medical examination by a registered medical practitioner is
mandatory when, “it is proposed to get the person of the woman examined by a medical expert”
during the course of investigation. This is borne out by the use of the words, “such examination
shall be conducted”. In contrast, Section 53-A(1) merely makes it lawful for a registered medical
practitioner to make an examination of the arrested person if “there are reasonable grounds for
believing that an examination of his person will afford evidence as to the commission of such
offence”.
82. In cases where the victim of rape is alive and is in a position to testify in court, it may be
possible for the prosecution to take a chance by not medically examining the accused. But in
cases where the victim is dead and the offence is sought to be established only by circumstantial
evidence, medical evidence assumes great importance. The failure of the prosecution to produce
such evidence, despite there being no obstacle from the accused or anyone, will certainly create
a gaping hole in the case of the prosecution and give rise to a serious doubt on the case of the
prosecution. We do not wish to go into the question whether Section 53-A is mandatory or not.
Section 53-A enables the prosecution to obtain a significant piece of evidence to prove the charge.
The failure of the prosecution in this case to subject the appellant to medical examination is
certainly fatal to the prosecution case especially when the ocular evidence is found to be not
trustworthy.
83. Their failure to obtain the report of the Forensic Science Laboratory on the blood/semen
stain on the salwar worn by the victim, compounds the failure of the prosecution.”
29. Thus, medical examination of an accused assumes great importance in cases
where the victim of rape is dead and the offence is sought to be established only by
circumstantial evidence.
FURTHER STATEMENT UNDER SECTION 313 CrPC
30. The further statement of the appellant convict was recorded under Section 313
CrPC. We were shocked to see the manner in which the Trial Court recorded the further
statement of the appellant convict under Section 313 CrPC. In all, four questions were put
to the appellant convict to enable him to explain the incriminating circumstances pointing
towards his complicity in the alleged crime. The questions are as under:-
“(1) Question :- Have you heard the evidence of the witnesses?
14
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.
(c) The circumstance of the accused refusing to open the door as he did not have the
key.
(d) The circumstance of the Appellant giving the keys to the villagers after he was
assaulted.
(e) The circumstance of the alleged extra-judicial confession made by the co-accused
Pritam Tiwari implicating the Appellant.
32. Indisputably, none of the aforesaid circumstances relied upon by the Trial Court
were put to the appellant convict so that he could offer a proper explanation to the same.
33. Having regard to the fact that an innocent girl of 10 years was lured, raped and
brutally murdered, we looked into the entire record very closely. Our mind got clouded with
suspicion. Ultimately, we noticed something very shocking. The shocking aspect, we shall
discuss about hereinafter, if would have gone unnoticed at our end too, then it would have
led to a serious miscarriage of justice.
34. We thought fit to call for the papers of the charge sheet and look into the FIR lodged
by PW 2 Kiran Devi; the further statement of PW 2 recorded under Section 161 of the
CrPC in furtherance of the FIR lodged by her and the police statements of PW 1 Babloo
Saw, and PW 3 Priya Kumari, the elder sister of the victim and elder daughter of PW 2
(first informant). Reading the FIR and the police statements of the aforesaid witnesses left
us aghast.
35. We first start with the FIR lodged by PW 2 which reads thus:-
“Fardbayan of Kiran Devi aged about 40 years w/o Arvind Sah, at Thateri Tola, Police Station-
Sabour, District Bhagalpur recorded by S.I. cum S.H.O. Rita Kumari Sabour P.S. in house of Naval
Kishore Ojha @ Fuchan Pandey dated 01-06-15 at 12:45 P.M.
My name is Kiran Devi, aged about 40 years old, w/o Arvind Sah, Rio Thateri Tola Sabour Police
Station- Saber, District- Bhagalpur. I am giving this statement without any pressure, in presence
of the In-charge of Sabour Police Station today on 01 June, 2015 at the house of Naval Kishore
(Fucchan Pandey) that yesterday on 31st May, 2015, I went to my late elder sister Sakila Devi's
15
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 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
brotherin-law (wife's brother) for its maintenance. Pritam Tiwary worked in a cloth shop. People
from the cloth shop also used to visit the house of Fucchan Pandey occasionally. There was a TV
in the house of Fucchan Pandey. Children from the neighborhood also used to visit his house to
watch the TV. On date 31.05.15, I (Kiran Devi) had gone to the house of my late sister, Shakila
Devi in Jamunia Parvatta. On date 31.05.15 at about 12:00, her elder daughter Priya Kumari
informed her on telephone that her younger daughter X was nowhere to be found. She
immediately left from there. After her arrival at Sabour in her house, her elder daughter informed
that her younger daughter X had stated that she was going to the house of Pritam Tiwary to watch
TV. Pritam Tiwary had called X to watch TV at his home at around 9 o'clock. When X did not come
home till eleven o'clock, her elder daughter Priya went to the house of Pritam Tiwary to search
for her. At that time Pritam Tiwary was locking the door. When she asked the whereabouts of X
from Pritam Tiwary, he told that she was not there. After that she went to a mango orchard to look
for her. She was not found there also. Then Priya called all her relatives and went to search her,
but could not find her anywhere. Even after such a hectic search, X was nowhere to be found. So
we all collectively decided to find Pritam Tiwary who was also not to be found. The villagers
became suspicious so they all called Munna Pandey and asked him to open the gate. But Munna
Pandey declined to open the gates and said that he did not have the keys to the lock. The local
villagers then telephoned Naval Pandey @ Fucchan Pandey. At that time he was at his in-law's
place at Shobhapur. When Munna Pandey declined to hand over the keys, everybody became
suspicious that Pritam Tiwary was not there and it was very much possible that he (Pritam Tiwary)

16
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 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 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.”

17
 (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 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 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.
18
Had he done so, he could without any impropriety have caught the discrepancies between
the statements made by these witnesses to the investigating officer and their evidence at
the trial, to be brought on the record by himself putting questions to the witnesses under
Section 165 of the Evidence Act. There is, in our opinion, nothing in Section 162 CrPC to
prevent a Trial Judge, as distinct from the prosecution or the defence, from putting to
prosecution witnesses the questions otherwise permissible, if the justice obviously
demands such a course. In the present case, we are strongly of the opinion that is what,
in the interests of justice, the Trial Judge should have done but he did not look at the
record of the police investigation until after the investigating officer had been examined
and discharged as a witness. Even at this stage, the Trial Judge could have recalled the
officer and other witnesses and questioned them in the manner provided by Section 165
of the Evidence Act. It is regrettable that he did not do so.
44. We take this opportunity of explaining the aforesaid a little more explicitly.
45. Section 162 of the CrPC reads thus:-
“Section 162. Statements to police not to be signed : Use of statements in evidence.─(1)
No statement made by any person to a police officer in the course of an investigation under this
Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such
statement or any record thereof, whether in a police diary or otherwise, or any part of such
statement or record, be used for any purpose, save as hereinafter provided, at any inquiry or trial
in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose
statement has been reduced into writing as aforesaid, any part of his statement, if duly proved,
may be used by the accused, and with the permission of the Court, by the prosecution, to
contradict such witness in the manner provided by section 145 of the Indian Evidence Act , 1872
(1 of 1872); and when any part of such statement is so used, any part thereof may also be used
in the re-examination of such witness, but for the purpose only of explaining any matter referred
to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions
of clause (1) of section 32 of the Indian Evidence Act, 1872 (1 of 1872); or to affect the provisions
of section 27 of that Act.
Explanation.--An omission to state a fact or circumstance in the statement referred to in sub-
section (1) may amount to contradiction if the same appears to be significant and otherwise
relevant having regard to the context in which such omission occurs and whether any omission
amounts to a contradiction in the particular context shall be a question of fact.”
46. Section 162 CrPC says that no statement made by any person to a police officer in
the course of an investigation, whether it be recorded or not, shall be used for the purpose
save as provided in the first proviso to the Section. The first proviso says that when any
witness, whose statement has been reduced into writing by the police in accordance with
the provisions of the CrPC, is called for the prosecution in inquiry or trial the accused with
the permission of the court may contradict the witnesses in the manner provided by
Section 145 of the Evidence Act. It could be argued that, as the first part of Section 162
prohibits the use of the statement of a witness to a police officer for any purpose, other
than that subsequently provided for in the proviso, and as the proviso says that the Court
may permit the accused to contradict the witness with his previous statement, the Court
has no power to do anything suo motu. In our opinion, this would be a misreading of the
Section. The first part of Section 162 says that the statement made by a person to a police
officer during investigation cannot be used for any purpose other than that mentioned in
the proviso. We lay stress on the word “purpose”. The purpose mentioned in the proviso
is the purpose of contradicting the evidence given in favour of the State by a prosecution
19
witness in Court by the use of the previous statement made by such witness to the police
officer. The purpose is to discredit the evidence given in favour of the prosecution by a
witness for the State. The Section prohibits the use of the statement for any other purpose
than this. It does not say that the statement can only be used at the request of the accused.
The limitation or restriction imposed in the first part of Section 162 CrPC relates to this
purpose for which the statement may be used; it does not relate to the procedure which
may be adopted to effect this purpose. The proviso which sets out the limited purpose also
mentions the way in which an accused person may contradict the witness with his previous
statement made to the Police, but it does not in any way purport to take away the power
that lies in the Court to look into any document, that it considers necessary to look into for
the ends of justice and to put such questions to a witness as it may consider necessary to
elicit the truth. We realise that the proviso would prevent the Court from using statements
made by a person to a police officer in the course of investigation for any other purpose
than that mentioned in the proviso but it does not in any other way affect the power that
lies in the Court to look into documents or put questions to witnesses suo motu. It seems
to us to be absurd to suggest that a Judge cannot put a question to a witness which a
party may put. In this connection we would refer to the provisions of Section 165 of the
Evidence Act, where the necessity of clothing the Judge with very wide powers to put
questions to witnesses and to look into documents is recognised and provided for. This is
what Section 165 of the Evidence Act says:—
“Section 165. Judge’s power to put questions or order production.─ The Judge may, in order
to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form,
at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order
the production of any document or thing; and neither the parties nor their agents shall be entitled
to make any objection to any such question or order, nor, without the leave of the Court, to
crossexamine any witness upon any answer given in reply to any such question: …”
47. There is in our opinion nothing in Section 162 of the CrPC which prevents a Trial
Judge from looking into the papers of the chargesheet suo motu and himself using the
statement of a person examined by the police recorded therein for the purpose of
contradicting such person when he gives evidence in favour of the State as a prosecution
witness. The Judge may do this or he may make over the recorded statement to the lawyer
for the accused so that he may use it for this purpose. We also wish to emphasise that in
many sessions cases when an advocate appointed by the Court appears and particularly
when a junior advocate, who has not much experience of the procedure of the Court, has
been appointed to conduct the defence of an accused person, it is the duty of the Presiding
Judge to draw his attention to the statutory provisions of Section 145 of the Evidence Act,
as explained in Tara Singh v. State reported in AIR 1951 SC 441 and no Court should
allow a witness to be contradicted by reference to the previous statement in writing or
reduced to writing unless the procedure set out in Section 145 of the Evidence Act has
been followed. It is possible that if the attention of the witness is drawn to these portions
with reference to which it is proposed to contradict him, he may be able to give a perfectly
satisfactory explanation and in that event the portion in the previous statement which
would otherwise be contradictory would no longer go to contradict or challenge the
testimony of the witness.
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.
20
49. In the aforesaid context, we may refer to and rely on a three-Judge Bench decision
in the case of V.K. Mishra v. State of Uttarakhand, (2015) 9 SCC 588, wherein this Court,
after due consideration of Section 161 of the CrPC and Section 145 of the Evidence Act,
observed as under:-
“16. Section 162 CrPC bars use of statement of witnesses recorded by the police except for the
limited purpose of contradiction of such witnesses as indicated there. The statement made by a
witness before the police under Section 161(1) CrPC can be used only for the purpose of
contradicting such witness on what he has stated at the trial as laid down in the proviso to Section
162(1) CrPC. The statements under Section 161 CrPC recorded during the investigation are not
substantive pieces of evidence but can be used primarily for the limited purpose: (i) of
contradicting such witness by an accused under Section 145 of the Evidence Act; (ii) the
contradiction of such witness also by the prosecution but with the leave of the Court; and (iii) the
re-examination of the witness if necessary.
17. The court cannot suo motu make use of statements to police not proved and ask questions
with reference to them which are inconsistent with the testimony of the witness in the court. The
words in Section 162 CrPC “if duly proved” clearly show that the record of the statement of
witnesses cannot be admitted in evidence straightaway nor can be looked into but they must be
duly proved for the purpose of contradiction by eliciting admission from the witness during cross-
examination and also during the cross-examination of the investigating officer. The statement
before the investigating officer can be used for contradiction but only after strict compliance with
Section 145 of the Evidence Act that is by drawing attention to the parts intended for contradiction.
18. Section 145 of the Evidence Act reads as under:
“145.Cross-examination as to previous statements in writing.—A witness may be cross-examined
as to previous statements made by him in writing or reduced into writing, and relevant to matters
in question, without such writing being shown to him, or being proved; but, if it is intended to
contradict him by the writing, his attention must, before the writing can be proved, be called to
those parts of it which are to be used for the purpose of contradicting him.”
19. Under Section 145 of the Evidence Act when it is intended to contradict the witness by his
previous statement reduced into writing, the attention of such witness must be called to those
parts of it which are to be used for the purpose of contradicting him, before the writing can be
used. While recording the deposition of a witness, it becomes the duty of the trial court to ensure
that the part of the police statement with which it is intended to contradict the witness is brought
to the notice of the witness in his cross-examination. The attention of witness is drawn to that part
and this must reflect in his cross-examination by reproducing it. If the witness admits the part
intended to contradict him, it stands proved and there is no need to further proof of contradiction
and it will be read while appreciating the evidence. If he denies having made that part of the
statement, his attention must be drawn to that statement and must be mentioned in the deposition.
By this process the contradiction is merely brought on record, but it is yet to be proved. Thereafter
when investigating officer is examined in the court, his attention should be drawn to the passage
marked for the purpose of contradiction, it will then be proved in the deposition of the investigating
officer who again by referring to the police statement will depose about the witness having made
that statement. The process again involves referring to the police statement and culling out that
part with which the maker of the statement was intended to be contradicted. If the witness was
not confronted with that part of the statement with which the defence wanted to contradict him,
then the court cannot suo motu make use of statements to police not proved in compliance with
Section 145 of 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

21
defence wanted to contradict him, then the Court cannot suo motu make use of statements
to police not proved in compliance with Section 145 of the Evidence Act. Therefore, it is of
utmost importance to prove all major contradictions in the form of material omissions in
accordance with the procedure as established under Section 145 of the Evidence Act and
bring them on record. It is the duty of the defence counsel to do so.
51. This Court in Raghunandan v. State of U.P. reported in (1974) 4 SCC 186, it was
observed:-(SCC p. 191, para 16)
“16. We are inclined to accept the argument of the appellant that the language of Section 162,
Criminal Procedure Code, though wide, is not explicit or specific enough to extend the prohibition
to the use of the wide and special powers of the Court to question a witness, expressly and
explicitly given by Section 165 of the Indian Evidence Act in order to secure the ends of justice.
….Therefore, we hold that Section 162, Criminal Procedure Code, does not impair the special
powers of the Court under Section 165, Indian Evidence Act. …”
(Emphasis supplied)
52. This Court in Dandu Lakshmi Reddy v. State of A.P., (1999) 7 SCC 69, it was
held:-
“20. It must now be remembered that the said procedure can be followed only when a witness is
in the box. Barring the above two modes, a statement recorded under Section 161 of the Code
can only remain fastened up at all stages of the trial in respect of that offence. In other words, if
the court has not put any question to the witness with reference to his statement recorded under
Section 161 of the Code, it is impermissible for the court to use that statement later even for
drawing any adverse impression regarding the evidence of that witness. What is interdicted by
Parliament in direct terms cannot be obviated in any indirect manner.”
(Emphasis supplied)
53. Sarkar (1999, 15th pp. 2319 etc.) says that a Judge is entitled to take a proactive
role in putting questions to ascertain the truth and to fill up doubts, if any, arising out of
inept examination of witnesses. But, as stated by Lord Denning in Jones v. National Coal
Board, 1957 (2) All ER 155 (CA), the Judge cannot “drop the mantle of a Judge and
assume the robe of an advocate”.
54. Of course, the Judge should not be a passive spectator but should take a proactive
role as emphasized by Phipson (Evidence, 1999, 15th Ed, para 1.21 as under:-
“When the form of the English trial assumed its modern institutional form, the role of the judge
was that of a neutral umpire. This is still broadly the position in criminal cases. In civil cases, the
abandonment of jury trial except in a few exceptional cases led to some dilution of this principle.
The wholesale changes in 1999 of the rules governing civil procedure has emphasized the
interventionist role of the modern judge. Whereas formally the tribunal was a ‘reactive judge (for
centuries past at the heart of the English Common Law -- concept of the independent judiciary)
instead we shall have a proactive judge whose task will be to take charge of the action at an early
stage and manage its conduit.”
(Emphasis supplied)
55. This Court in State of Rajasthan v. Ani @ Hanif and Ors. (1997) 6 SCC 162, made
very relevant and important observations as under:-
“11. … Section 165 of the Evidence Act confers vast and unrestricted powers on the trial court to
put “any question he pleases, in any form, at any time, of any witness, or of the parties, about any
fact relevant or irrelevant” in order to discover relevant facts. The said section was framed by
lavishly studding it with the word “any” which could only have been inspired by the legislative
intent to confer unbridled power on the trial court to use the power whenever he deems it
necessary to elicit truth. Even if any such question crosses into irrelevancy the same would not
22
transgress beyond the contours of powers of the court. This is clear from the words “relevant or
irrelevant” in Section 165. Neither of the parties has any right to raise objection to any such
question.
12. Reticence may be good in many circumstances, but a Judge remaining mute during trial is
not an ideal situation. A taciturn Judge may be the model caricatured in public mind. But there is
nothing wrong in his becoming active or dynamic during trial so that criminal justice being the end
could be achieved. Criminal trial should not turn out to be a bout or combat between two rival
sides with the Judge performing the role only of a spectator or even an umpire to pronounce finally
who won the race. A Judge is expected to actively participate in the trial, elicit necessary materials
from witnesses in the appropriate context which he feels necessary for reaching the correct
conclusion. There is nothing which inhibits his power to put questions to the witnesses, either
during chief examination or cross-examination or even during reexamination 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 crossexamination. Criminal justice is not to be
founded on erroneous answers spelled out by witnesses during evidence-collecting process. It is
a useful exercise for trial Judge to remain active and alert so that errors can be minimised.”
(Emphasis supplied)
56. In the above context, it is apposite to quote the observations of Chinnappa Reddy,
J. in Ram Chander v. State of Haryana, (1981) 3 SCC 191:-
“2. The adversary system of trial being what it is, there is an unfortunate tendency for a judge
presiding over a trial to assume the role of a referee or an umpire and to allow the trial to develop
into a contest between the prosecution and the defence with the inevitable distortions flowing from
combative and competitive element entering the trial procedure. If a criminal court is to be an
effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a
mere recording machine. He must become a participant in the trial by evincing intelligent active
interest by putting questions to witnesses in order to ascertain the truth. …”
(Emphasis supplied)
ROLE AND DUTY OF THE HIGH COURT IN CONFIRMATION CASES
57. We regret to state that the High Court completely overlooked the aforesaid aspects
as discussed above. What was expected of the High Court to do in such circumstances?
If the High Court would have taken little pains to look into the record, then immediately it
could have taken recourse to Section 367 of the CrPC. We invite the attention of the High
Court to the provisions of Chapter XXVIII (Section 366 to Section 371) and Chapter XXIX
(Section 372 to Section 394). The provisions of Section 366 to Section 368 and Sections
386 and Section 391 are quoted here for ready reference:-
“Section 366. Sentence of death to be submitted by Court of Session for confirmation.—
(1) When the Court of Session passes a sentence of death, the proceedings shall be submitted
to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court.
(2) The Court passing the sentence shall commit the convicted person to jail custody under a
warrant.
Section 367. Power to direct further inquiry to be made or additional evidence to be
taken.—(1) If, when such proceedings are submitted, the High Court thinks that a further inquiry
should be made into or additional evidence taken upon, any point bearing upon the guilt or
innocence of the convicted person, it may make such inquiry or take such evidence itself, or direct
it to be made or taken by the Court of Session.
(2) Unless the High Court otherwise directs, the presence of the convicted person may be
dispensed with when such inquiry is made or such evidence is taken.

23
(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.
xxxx
Section 386. Powers of the appellate court.—After perusing such record and hearing the
appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of
an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may,
if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may—
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry
be made, or that the accused be re-tried or committed for trial, as the case may be, or find him
guilty and pass sentence on him according to law;
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be
re-tried by a court of competent jurisdiction subordinate to such Appellate Court or committed for
trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent,
of the sentence, but not so as to enhance the same;
(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.
xxxx
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

24
taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a
Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he
shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to
dispose of the appeal.
(3) The accused or his pleader shall have the right to be present when the additional evidence
is taken.
(4) The taking of evidence under this section shall be subject to the provisions of Chapter
XXIII, as if it were an inquiry.”
(Emphasis supplied)
58. According to Section 366 when a Court of Session passes a sentence of death, the
proceedings must be submitted to the High Court and the sentence of death is not to be
executed unless it is confirmed by the High Court. Section 367 then proceeds to lay down
the power of the High Court to direct further enquiry to be made or additional evidence to
be taken. Section 368, thereafter, lays down the power of the High Court to confirm the
sentence so imposed or annul the conviction. One of the powers which the High Court
can exercise is one under Section 368(c) of the CrPC and that is to “acquit the accused
person”. Pertinently, the power to acquit the person can be exercised by the High Court
even without there being any substantive appeal on the part of the accused challenging
his conviction. To that extent, the proceedings under Chapter XXVIII which deal with
“submission of death sentences for confirmation” is a proceeding in continuation of the
trial. These provisions thus entitle the High Court to direct further enquiry or to take
additional evidence and the High Court may, in a given case, even acquit the accused
person. The scope of the chapter is wider. Chapter XXIX of the CrPC deals with “Appeals”.
Section 391 also entitles the appellate court to take further evidence or direct such further
evidence to be taken. Section 386 then enumerates powers of the appellate court which
inter alia includes the power to “reverse the finding and sentence and acquit or discharge
the accused, or order him to be re-tried by a court of competent jurisdiction subordinate to
such appellate court or committed for trial”. The powers of the appellate court are equally
wide. The High Court in the present case was exercising powers both under Chapters
XXVIII and XXIX of the CrPC.
59. Ordinarily, in a criminal appeal against conviction, the appellate court, under Section
384 of the CrPC, can dismiss the appeal, if the Court is of the opinion that there is no
sufficient ground for interference, after examining all the grounds urged before it for
challenging the correctness of the decision given by the Trial Court. It is not necessary for
the appellate court to examine the entire record for the purpose of arriving at an
independent decision of its own whether the conviction of the appellant is fully justified.
The position is, however, different where the appeal is by an accused who is sentenced
to death, so that the High Court dealing with the appeal has before it, simultaneously with
the appeal, a reference for confirmation of the capital sentence under Section 366 of the
CrPC. On a reference for confirmation of 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
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expired, or, if an appeal is presented within such period, until such appeal is disposed of,
so that, if an appeal is filed by a condemned prisoner, that appeal has to be disposed of
before any order is made in the reference confirming the sentence of death. In disposing
of such an appeal, however, it is necessary that the High Court should keep in view its
duty under Section 367 CrPC and, consequently, the Court must examine the appeal
record for itself, arrive at a view whether a further enquiry or taking of additional evidence
is desirable or not, and then come to its own conclusion on the entire material on record
whether conviction of the condemned prisoner is justified and the sentence of death
should be confirmed. [See: Bhupendra Singh (supra)]
60. In Jumman (supra), this Court explained the aforestated position in the following
words:-
“10. … but there is a difference when a reference is made under Section 374 of the Criminal
Procedure Code (Section 366 of the Code of Criminal Procedure, 1973), and when disposing of
an appeal under Section 423 of the Criminal Procedure Code (Section 386 of the Code of Criminal
Procedure, 1973) and that is that the High Court has to satisfy itself as to whether a case beyond
reasonable doubt has been made out against the accused persons for the infliction of the penalty
of death. In fact the proceedings before the High Court are a reappraisal and the reassessment
of the entire facts and law in order that the High Court should be satisfied on the materials about
the guilt or innocence of the accused persons. Such being the case, it is the duty of the High
Court to consider the proceedings in all their aspects and come to an independent conclusion on
the materials, apart from the view expressed by the Sessions Judge. In so doing, the High Court
will be assisted by the opinion expressed by the Sessions Judge, but under the provisions of the
law above-mentioned it is for the High Court to come to an independent conclusion of its own.”
61. The same principle was recognised in Ram Shankar Singh (supra):-
“12. … The High Court had also to consider what order should be passed on the reference under
Section 374, and to decide on an appraisal of the evidence, whether the order of conviction for
the offences for which the accused were convicted was justified and whether, having regard to
the circumstances, the sentence of death was the appropriate sentence. …”
62. In Masalti v. State of U.P., (1964) 8 SCR 133, this Court was dealing with an appeal
under Article 136 of the Constitution and, in that appeal, on behalf of the persons who
were under sentence of death, a point was sought to be urged which was taken before
the trial court and was rejected by it, but was not repeated before the High Court. This
Court held:-
“11. …it may, in a proper case, be permissible to the appellants to ask this Court to consider that
point in an appeal under Article 136 of the Constitution; after all in criminal proceedings of this
character where sentences of death are imposed on the appellants, it may not be appropriate to
refuse to consider relevant and material pleas of fact and law only on the ground that they were
not urged before the High Court. If it is shown that the pleas were actually urged before the High
Court and had not been considered by it, then, of course the party is entitled as a matter of right
to obtain a decision on those pleas from this Court. But even otherwise no hard and fast Rule can
be laid down prohibiting such pleas being raised in appeals under Article 136.”
63. In Kunal Majumdar v. State of Rajasthan, (2012) 9 SCC 320, this Court was
dealing with an appeal filed by a convict sentenced to death. It was noted that the High
Court had dealt with the reference in a very casual and callous manner by merely stating
that the counsel for the appellant therein pleaded for sympathetic consideration in
commuting the death sentence into sentence for life. This Court noticed that there was
absolutely 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

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was required to be considered. This Court while remitting the matter back to the High
Court observed thus:-
“16. In a case for consideration for confirmation of death sentence under Section 366(1) CrPC,
the High Court is bound to examine the reference with particular reference to the provisions
contained in Sections 367 to 371 CrPC. Under Section 367 CrPC, when reference is submitted
before the High Court, the High Court, if satisfied that a further enquiry should be made or
additional evidence should be taken upon, any point bearing upon the guilt or innocence of the
convict person, it can make such enquiry or take such evidence itself or direct it to be made or
taken by the Court of Session. The ancillary powers as regards the presence of the accused in
such circumstances have been provided under sub-sections (2) and (3) of Section 367 CrPC.
Under Section 368, while dealing with the reference under Section 366, it inter alia provides for
confirmation of the sentence or pass any other sentence warranted by law or may annul the
conviction itself and in its place convict the accused for any other offence of which the Court of
Session might have convicted the accused or order a new trial on the same or an amended
charge. It may also acquit the accused person. Under Section 370, when such reference is heard
by a Bench of Judges and if they are divided in their opinion, the case should be decided in the
manner provided under Section 392 as per which the case should be laid before another Judge
of that Court who should deliver his opinion and the judgment or order should follow that opinion.
Here again, under the proviso to Section 392, it is stipulated that if one of the Judges constituting
the Bench or where the appeal is laid before another Judge, either of them, if so required, direct
for rehearing of the appeal for a decision to be rendered by a larger Bench of Judges.
17. When such a special and onerous responsibility has been imposed on the High Court while
dealing with a reference under Section 366(1) CrPC, we are shocked to note that in the order
[Criminal Murder Reference No. 1 of 2007 under S. 366(1) CrPC, decided on 11-7-2007 (Raj)]
impugned herein, the Division Bench merely recorded to the effect that the counsel for the
appellant pleaded for sympathy to commute the death sentence into one for life for the offence
falling under Section 302 IPC while praying for maintaining the sentence imposed for the offence
under Sections 376/511 IPC and that there was no opposition from the learned Public Prosecutor.
The Division Bench on that sole ground and by merely stating that there was no use of force of
severe nature on the victim at the hands of the appellant and that the commission of offence of
murder cannot be held to be brutal or inhuman and consequently the death sentence was liable
to be altered as one for life for the offence under Section 302 IPC. The Division Bench of the High
Court did not bother to exercise its jurisdiction vested in it under Section 366(1) CrPC read with
Sections 368 to 370 and 392 CrPC in letter and spirit and thereby, in our opinion, shirked its
responsibility while deciding the reference in the manner it ought to have been otherwise decided
under the Code of Criminal Procedure. We feel that less said is better while commenting upon
the cursory manner in which the judgment came to be pronounced by the Division Bench while
dealing with the reference under Section 366(1) while passing the impugned judgment [Criminal
Murder Reference No. 1 of 2007 under S. 366(1) CrPC, decided on 11-7-2007 (Raj)].
18. We are however duty-bound to state and record that in a reference made under Section
366(1) CrPC, there is no question of the High Court short-circuiting the process of reference by
merely relying upon any concession made by the counsel for the convict or that of the counsel for
the State. A duty is cast upon the High Court to examine the nature and the manner in which the
offence was committed, the mens rea if any, of the culprit, the plight of the victim as noted by the
trial court, the diabolic manner in which the offence was alleged to have been performed, the ill-
effects it had on the victim as well as the society at large, the mindset of the culprit vis-à-vis the
public interest, the conduct of the convict immediately after the commission of the offence and
thereafter, the past history of the culprit, the magnitude of the crime and also the consequences
it had on the dependants or the custodians of the victim. There should be very wide range of
consideration to be 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.”

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 (Emphasis supplied)
CONCEPT OF FAIR TRAIL
64. All fair trials are necessarily legally valid, but is the reverse necessarily true? What
then is the genesis of the concept of a fair trial? The concept of a fair trial has a very
impressive ancestry, is rooted in history, enshrined in the Constitution, sanctified by
religious philosophy and juristic doctrines and embodied in the statute intended to regulate
the course of a criminal trial. Its broad features and ingredients have, in course of time,
been concretised into well recognised principles, even though there are grey areas, which
call for further legal thought and research.
65. Truth is the cherished principle and is the guiding star of the Indian criminal justice
system. For justice to be done truth must prevail. Truth is the soul of justice. The sole idea
of criminal justice system is to see that justice is done. Justice will be said to be done
when no innocent person is punished and the guilty person is not allowed to go scot free.
66. For the dispensation of criminal justice, India follows the accusatorial or adversarial
system of common law. In the accusatorial or adversarial system the accused is presumed
to be innocent; prosecution and defence each put their case; judge acts as an impartial
umpire and while acting as a neutral umpire sees whether the prosecution has been able
to prove its case beyond reasonable doubt or not.
67. Free and fair trial is sine-qua-non of Article 21 of the Constitution of India. If the
criminal trial is not free and fair, then the confidence of the public in the judicial fairness of
a judge and the justice delivery system would be shaken. Denial to fair trial is as much
injustice to the accused as to the victim and the society. No trial can be treated as a fair
trial unless there is an impartial judge conducting the trial, an honest, able and fair defence
counsel and equally honest, able and fair public prosecutor. A fair trial necessarily includes
fair and proper opportunity to the prosecutor to prove the guilt of the accused and
opportunity to the accused to prove his innocence.
68. The role of a judge in dispensation of justice after ascertaining the true facts no
doubt is very difficult one. In the pious process of unravelling the truth so as to achieve
the ultimate goal of dispensing justice between the parties the judge cannot keep himself
unconcerned and oblivious to the various happenings taking place during the progress of
trial of any case. No doubt he has to remain very vigilant, cautious, fair and impartial, and
not to give even a slightest of impression that he is biased or prejudiced either due to his
own personal convictions or views in favour of one or the other party. This, however, would
not mean that the Judge will simply shut his own eyes and be a mute spectator, acting like
a robot or a recording machine to just deliver what stands feeded by the parties.
69. Malimath Committee on Judicial Reforms discussed the paramount duty of
Courts to search for truth. The relevant observations of the Committee are as under:-
(a) The Indian ethos accords the highest importance to truth. The motto “Satyameva
Jayate” (Truth alone succeeds) is inscribed in our National Emblem “Ashoka Sthambha”.
Our epics extol the virtue of truth.
(b) For the common man truth and justice are synonymous. So when truth fails, justice
fails. Those who know that the acquitted accused was in fact the offender, lose faith in the
system.
(c) In practice however we find that the Judge, in his anxiety to demonstrate his
neutrality opts to remain passive and truth often becomes a casualty.

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(d) Truth being the cherished ideal and ethos of India, pursuit of truth should be the
guiding star of the Justice System. For justice to be done truth must prevail. It is truth that
must protect the innocent and it is truth that must be the basis to punish the guilty. Truth
is the very soul of justice. Therefore, truth should become the ideal to inspire the courts to
pursue.
(e) Many countries which have Inquisitorial model have inscribed in their Parliamentary
Acts a duty to find the truth in the case. In Germany Section 139 of the so called ‘Majna
Charta’, a breach of the Judges' duty to actively discover truth would promulgate a
procedural error which may provide grounds for an appeal.
(f) For Courts of justice there cannot be any better or higher ideal than quest for truth.
70. This Court has condemned the passive role played by the Judges and emphasized
the importance and legal duty of a Judge to take an active role in the proceedings in order
to find the truth to administer justice and to prevent the truth from becoming a casualty. A
Judge is also duty bound to act with impartiality and before he gives an opinion or sits to
decide the issues between the parties, he should be sure that there is no bias against or
for either of the parties to the lis. For a judge to properly discharge this duty the concept
of independence of judiciary is in existence and it includes ability and duty of a Judge to
decide each case according to an objective evaluation and application of the law, without
the influence of outside factors.
71. If the Courts are to impart justice in a free, fair and effective manner, then the
presiding judge cannot afford to remain a mute spectator totally oblivious to the various
happenings taking place around him, more particularly, concerning a particular case being
tried by him. The fair trial is possible only when the court takes active interest and elicit all
relevant information and material necessary so as to find out the truth for achieving the
ultimate goal of dispensing justice with all fairness and impartiality to both the parties.
72. In Ram Chander (supra), while speaking about the presiding judge in a criminal
trial, Chinnappa Reddy, J. observed that if a criminal court is to be an effective instrument
in dispensing justice, the presiding judge must cease to be a spectator and a mere
recording machine. He must become a participant in the trial by evincing intelligent active
interest by putting questions to witnesses in order to ascertain the truth. The learned Judge
reproduced a passage from Sessions Judge, Nellore v. Intha Ramana Reddy, 1972
Cri.L.J. 1485, which reads as follows:—
“Every criminal trial is a voyage of discovery in which truth is the quest. It is the duty of a presiding
Judge to explore every avenue open to him in order to discover the truth and to advance the
cause of justice. For that purpose he is expressly invested by Section 165 of 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.

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74. If anyone would ask us the question, “What is the ratio of this Judgment?” The
answer to the same would be very simple and plain, in the words of Clarence Darrow;
“Justice has nothing to do with what goes on in the courtroom; Justice is what comes out
of a courtroom.”
75. In the result, the impugned judgment of the High Court is set aside and the matter
is remitted back to the High Court for reconsideration of the Death Reference No. 4 of
2017 and Criminal Appeal (DB) No. 358 of 2017. The Death Reference No. 4 of 2017 and
Criminal Appeal (DB) No. 358 of 2017 stand restored for reconsideration of the High Court
in accordance with law.
76. The appellant is in jail past more than nine years. In such circumstances, the Death
Reference referred to above on being restored to the file of the High Court shall be taken
up for hearing expeditiously. The learned Chief Justice of the High Court is requested to
notify the Death Reference along with the Criminal Appeal for hearing before a Bench
which he may deem fit to constitute. We also request the learned Judges who would be
hearing the matter to give priority and dispose of the same at the earliest in accordance
with law.
77. As the appellant convict is in jail past more than nine years, his family might be in
dire straits. He may not be in a position to engage a lawyer of his choice. Probably, he
may not be in a position to even understand what is said in this judgment. In such
circumstances, the High Court may request a seasoned criminal side lawyer to appear on
behalf of the appellant and assist the Court.
78. The Registry shall forward one copy each of this judgment to all the High Courts
with a further request to each of the High Courts to circulate the same in its respective
district judiciary.
79. The appeals are disposed of accordingly.

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