The State Of Bihar vs Munna Pandey
2023 Latest Caselaw 5265 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                       DEATH REFERENCE No.4 of 2017
     Arising Out of PS. Case No.-106 Year-2015 Thana- SABAUR District- Bhagalpur
======================================================

The State of Bihar

... ... Petitioner/s Versus Munna Pandey, Son of Late Bir Bahadur Pandey, R/o Village - Thatheri Tola, Sabour, P.S. - Sabour, District - Bhagalpur.

... ... Respondent/s ====================================================== with CRIMINAL APPEAL (DB) No. 358 of 2017 Arising Out of PS. Case No.-106 Year-2015 Thana- SABAUR District- Bhagalpur ====================================================== Munna Pandey, Son of Late Bir Bahadur Pandey, R/o Village - Thatheri Tola, Sabour, P.S. - Sabour, District - Bhagalpur.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

(In DEATH REFERENCE No. 4 of 2017)
For the State            :       Mr. Ajay Mishra, APP
For the Respondent/s     :       Mr. Ansul, Adv.
                                 Mrs. Sagrika, Adv.
                                 Mr. Aditya Pandey, Adv.
                                 Ms. Harini Raghupathy, Adv.
                                 Mr. Abhinav Ashok, Adv.
                                 Ms. Priyanka Singh, Adv.
                                 Mr. Uday Bhanu, Adv.

Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

Ms. Zainab Khan, Adv.

(In CRIMINAL APPEAL (DB) No. 358 of 2017) For the Appellant/s : Mr. Ansul, Adv.

Mrs. Sagrika, Adv.

Mr. Aditya Pandey, Adv.

Ms. Harini Raghupathy, Adv.

Mr. Abhinav Ashok, Adv.

Ms. Priyanka Singh, Adv.

Mr. Uday Bhanu, Adv.

Ms. Zainab Khan, Adv.

For the State : Mr. Ajay Mishra, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE ALOK KUMAR PANDEY ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR) Date : 11-10-2023

A ten year old girl was raped and murdered in

the month of May, 2015. Two persons were charged for

the offences under Section 302 and 376 of the Indian

Penal Code (in short the I.P.C.) and Section 4 of the

Protection of Children from Sexual Offences Act, 2012

(in the POCSO Act, 2012), one being the

appellant/Munna Pandey before this Court and the other,

viz., Pritam Tiwary, who was declared a juvenile by the

Juvenile Justice Board.

Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

2. The Trial Court, after having examined six

(6) witnesses on behalf of the prosecution, convicted the

sole appellant under Sections 302 and 376 of the I.P.C.

and Section 4 of the POCSO Act, 2012 vide judgment

dated 02.02.2017 in Sessions Trial No. 581 of 2015,

arising out of Sabour P.S. Case No. 106 of 2015 dated

01.06.2015, and by order dated 23.02.2017, the

appellant was sentenced to death with a fine of Rs.

10,000/- for the offence under Section 302 of the I.P.C.

and to undergo R.I. for ten years for the offence under

Section 376 of the I.P.C. No sentence was awarded to

him for the offence under Section 4 of the POCSO Act,

2012.

3. The appellant preferred an appeal before

this Court vide Cr. Appeal (DB) No. 358 of 2017. Since

the sentence of death was imposed on the appellant, the

Trial Court transmitted the proceedings of the case to

this Court under Section 366 of the Code of Criminal

Procedure (in short the Cr.P.C.) for confirmation of the Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

sentence of death.

4. Both, the Death Reference No. 04 of 2017

and the Cr. Appeal (DB) No. 358 of 2017 were heard

together by a Division Bench of this Court which vide its

judgment dated 10.04.2018, affirmed the sentence of

death and dismissed the appeal of the appellant.

5. The appellant, without losing heart,

challenged the judgment of this Court before the

Supreme Court in Cr. Appeal Nos. 1271-1272 of 2018,

when a 3-Judges Bench of the Supreme Court set aside

the judgment of the High Court and remanded the

matter to the High Court, restoring before it the

Reference as also the appeal for re-evaluation and re-

appraisal of the facts and evidence which would be

independent of the opinion of the Trial Court, particularly

in view of the lapses on the part of the defence in not

proving the major contradictions in the form of material

omissions, surfacing from the oral evidence of the

prosecution witnesses.

Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

6. While remanding the matter to this Court,

the Supreme Court noted the fact that the appellant had

remained in jail for the last eight years and, therefore,

there was some urgency for the High Court to decide the

matter expeditiously.

7. The reasons for the Supreme Court to set

aside the judgment of the High Court, affirming the

conviction and death sentence of the appellant and

dismissal of his appeal, would be discussed later.

8. We have heard Sri Ansul, the learned

Advocate, who has appeared pro bono in this matter at

the instance of an organization called Project-39A, run

under the aegis of the National Law University, Delhi,

which assists poor persons on death row in the entire

length and breadth of the country.

9. The learned Advocate who had appeared

for the appellant on the earlier occasion has no objection

to the case being addressed by Sri Ansul, representing

Project-39A.

Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

10. It would be necessary to refer to the

facts of the case first.

11. The mother of the victim (P.W. 2) lodged

the fardbeyan at the house of one Nawal Kishore Ojha

@ Fuchan Pandey (brother of the appellant) on

01.06.2015 at about 12:45 P.M., which was recorded by

the SHO, Sabour Police Station (P.W. 5). She has

alleged that she had gone to her late sister's house a

couple of days prior to the occurrence. On 31.05.2015,

i.e., a day before the lodging of the fardbeyan, her elder

daughter (P.W. 3) informed her on telephone at 12:00

P.M. that her younger daughter (deceased) was not to

be found in the house. On hearing this, P.W. 2

immediately left for Sabour, her hometown. She was

told by P.W. 3 that the victim had gone to the house of

the appellant to watch television. When she did not come

back home till about 11:00 A.M. in the day, P.W. 3

telephonically informed her. After coming to Sabour, she

went to the house of the appellant in search of her Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

daughter, but the house was found to be locked.

Thereafter, she made a search for her daughter but

could get no clue about her. When the appellant was

asked to open the lock of the house, he evaded and said

that he did not have the keys. The informant (P.W. 2),

thereafter, informed the brother of the appellant on

telephone, who at the relevant time had gone to his in-

law's house. The brother of the appellant came back on

01.06.2015 at about 12:00 P.M. in the day. When he

opened the lock of his room, Pritam Tiwari, his brother-

in-law, was found to be hiding there. The room was

locked from outside. Later, when the lock of the room of

the appellant was opened, the dead body of her

daughter was found beneath the bed. This convinced her

that the appellant and Pritam Tiwari had raped and killed

her daughter by smothering her and had concealed the

dead body inside the room of the appellant.

12. On the basis of the afore-noted

fardbeyan of P.W. 2, a case vide Sabour P.S. Case No. Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

106 of 2015, dated 01.06.2015, was registered for

investigation against the appellant and Pritam Tiwari

under Section 376(D), 302 and 201/34 of the I.P.C. and

Section 4 of the POCSO Act, 2012.

13. The police, after investigation, submitted

charge-sheet against the appellant and Pritam Tiwari,

whereafter cognizance was taken against the appellant

and the case of Pritam Tiwari was referred to the

Juvenile Justice Board.

14. The Trial Court, as noted above,

examined six witnesses on behalf of the prosecution and

finding the appellant guilty of the offences under

Sections 376 and 302 of the I.P.C. and Section 4 of the

POCSO Act, sentenced him to death.

15. The High Court while hearing the appeal,

completely relied upon the deposition of P.Ws. 1, 2 and

3 to connect the circumstances leading to the guilt of the

appellant.

16. Before the Trial Court, P.W. 2 made a Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

some what different statement than what she had

alleged in the FIR. She iterated that her elder daughter

(P.W. 3) had informed her on telephone on 31.05.2015

that the victim was not to be found in the house. She

said that P.W. 3 had informed her that the victim was

asked by the appellant to come to his house for watching

television. When she had gone to the house of the

appellant, she had found it locked. Along with her, P.Ws.

1 and 3 and one Khushboo Devi (her sister-in-law), who

has not been examined at the Trial and the villagers also

searched for the victim. On being called by the villagers,

the appellant came and when the informant asked him

about her daughter, he expressed complete ignorance.

Expressing suspicion on the appellant, she (P.W. 2)

asked him to open the door of his room, but he evaded

on the ground that he did not have the keys. She then

suggested the appellant to break the lock of the room.

She also apprised the appellant that P.W. 3 had

informed her that he was seen locking the door Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

sometimes in the day when P.W. 3 had gone to look for

her sister. Pritam Tiwari also was not available in the

house. This had made her doubt that the victim may

have gone with Pritam. This process of search continued

till about evening. She, thereafter, again went to the

house of the appellant and she and others saw a dim

light burning in the room, which had fallen in the share

of Fuchan Pandey. Everybody suspected that some one

was hiding inside that room. It was at that time that the

local persons called Fuchan and asked him to come over.

He promised to come on the next day, which promise he

kept and arrived at his house at 10-11 A.M. on

01.06.2015. The appellant also was called to his house

by the villagers. Fuchan was not readily agreeable to

open the lock of the house. However, when the appellant

was assaulted by the villagers, he gave the keys. With

that key, the lock of the room of Fuchan Pandey was

opened. That room was also found to be locked from

inside as well. When the door was opened, Pritam Tiwary Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

was found, who tried to hide himself.

17. By this time, she has averred, the police

had also arrived. Pritam was caught by the villagers. The

locks were opened by the villagers where the dead body

of the daughter of P.W. 2 was found. It appeared to all

that the victim had been raped and strangulated. In

front of the police and the villagers, Pritam confessed

that he along with the appellant had committed the

crime. All the three persons, namely, the appellant, his

brother/Fuchan and Pritam were assaulted by the

villagers.

18. During cross-examination, she stated that

as a neighbour, she and her family were on visiting

terms with the appellant. She knew that the appellant

and his brother stayed separately and in the ancestral

house, one room fell in the share of the appellant,

whereas the other came to the share of his

brother/Fuchan Pandey. About 10 to 15 days prior to

the occurrence, Fuchan Pandey had gone to his in-law's Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

house at Sabhapur.

19. She assessed the age of the appellant to

be 50 to 55 years and of Pritam to be 19 to 20 years.

20. P.W. 2 denied the suggestion that it was

Pritam Tiwari only who had raped and killed the

deceased and that the appellant was falsely implicated in

this case. When further questioned about the appellant,

She told the Court that about five to six months ago, the

appellant had taken a house on rent. In paragraph-25 of

her cross-examination, she has denied that she had not

stated in her fardbeyan that her daughter (P.W. 3) had

seen the appellant locking the door of his house.

21. Similarly, P.W. 3, the elder sister of the

victim, has also supported the prosecution version in as

much as she stated before the Trial Court that she saw

the appellant putting a lock on the door of his house at

11:00 A.M. The appellant had told her that the victim

had gone back home after watching the TV. It was only

then that she (P.W. 3) had informed her mother (P.W. Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

2), when her mother and her cousin/Babloo (P.W. 1)

came to Sabour and went to the house of the appellant

in search of the victim. When the appellant was asked

to open the lock, he is said to have retaliated that if the

lock is forcibly opened, he would file a case of dacoity

against anyone responsible for it. The appellant, on not

finding Pritam around, suggested that perhaps Pritam

may have taken away the victim. Believing the appellant,

P.W. 3 and others started looking for Pritam but to no

avail.

22. Later in the evening, when she along with

others had gone to the house of the appellant, a bulb

was found burning inside the room of Fuchan Pandey,

which raised suspicion in the minds of everybody that

some one had been hiding inside the room. Fuchan was

then informed, who came on the next day and the locks

of the outer gate as also the respective rooms of the

appellant and his brother were opened. Pritam Tiwari

was found hiding in the room of Fuchan Pandey, Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

whereas the dead body was found in the room of the

appellant.

23. Pritam Tiwari had confessed before her

(P.W. 3) that he along with the appellant had raped and

killed the deceased. She has further stated that Pritam

was entrusted with the task of looking after the house of

Fuchan. Both, the appellant and his brother had not

given any cause to the family of P.W. 3 of any

complaint.

24. In paragraph-17 of her cross-

examination, she has stated that on 01.06.2015, Fuchan

arrived before the appellant and inside the house, only

Pritam was available. She has denied the suggestion that

Pritam had any association with the victim as the victim

was much younger to Pritam.

25. Similar statements have been made by

Babloo (P.W. 1), who is the cousin of the deceased.

26. The dead body was sent for post-mortem

examination on 01.06.2015.

Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

27. Dr. Sandip Lal (P.W. 4), who conducted

the post-mortem of the deceased, found the dead body

to be decomposed. The face had turned blackish; nails

were found to be cyanosed; both upper and lower lips

were swollen; abrasions were present over the inner

aspect of both upper and lower lips; lower lip was found

lacerated at the margin; nose was found to be

compressed; nasal bones were found to be dislocated;

trachea was deeply congested. On the examination of

the genitalia, P.W. 4 had found the hymen to be

ruptured with presence of blood clots. The labia in the

right side was found to be swollen and bruised. The

vaginal swab was collected and sent to the Department

of Pathology, Jawaharlal Medical College Hospital,

Bhagalpur for the needful.

28. In the opinion of P.W. 4, injury No. 1 on

the lips and nose were caused due to pressure applied

by some soft and blunt object, which was opined to be

dangerous and grievous in nature. Injury No. 2 on the Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

genitalia was also anti-mortem and caused by some

blunt object. The cause of death was stated to be

asphyxia and shock due to pressure exerted over the

mouth and nose. The time fixed for death was 12 to 36

hours from the post-mortem examination.

29. The Investigator of this case (P.W. 5)

had made a map of the P.O. She had arrested Pritam

Tiwari and the appellant at the spot. Thereafter, she

recorded the statement of P.Ws. 1, 2, 3 and 6. The

clothes of the victim and of the appellant were seized

and a seizure list was prepared in three copies (Exhibit-

6, 6/1 and 6/2).

30. P.W. 5 (I.O.) has stated before the Trial

Court that when she reached the place of occurrence,

approximately 150 persons had already congregated

there. The lock of the house also had already been

opened by the members of the public. However, she did

not find any sign of violence on the door of the house of

the appellant. Before her, neither the appellant nor Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

Pritam Tiwari had made any confession.

31. What is important to note is that in

paragraph-8 of her deposition, she has stated very

categorically that she had followed the instructions of the

superior police officer and had not obtained the FSL

report.

32. No further questions were asked from her

with respect to her investigation of the crime.

33. One Vijay Prasad Sah, a neighbour, has

been examined as P.W. 6 at the Trial, who had visited

the P.O. on hearing the noise near the house of the

appellant. Many people had assembled in front of the

house of the appellant. He learnt there that the victim

had gone missing and that later, her dead body was

found beneath the bed, inside the room of the appellant.

He also confirmed that Pritam is the brother-in-law of

Fuchan, who had been residing in the house for about

two to three months.

34. On perusal of the deposition of the Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

witnesses, the Supreme Court doubted whether such

statements were made by the witnesses during the

course of investigation. Both, P.Ws. 2 and 3 were

questioned about their having made statement before

the Investigator that they had not stated about the

appellant putting the lock outside his house at 11:00

A.M. on 01.06.2015, which they had accepted.

However, when no question was put to the Investigator

(P.W. 5) regarding such statement having been made

either by P.W. 2 or 3, the Supreme Court, in its

endeavor to elicit the truth, looked at the police papers

and found that the witnesses were not at all questioned

with respect to their previous statements for the

purposes of contradicting them. In fact, the Supreme

Court found that none of the witnesses had stated about

the appellant having put a lock on the door or the

appellant having come to the house of the victim to call

the deceased to watch television programme.

35. This allegation was directed against Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

Pritam Tiwari and not against the appellant.

36. It was at that point that the Supreme

Court thought that the appellant has not been given a

fair deal in the trial; perhaps for the inexperience of the

lawyer conducting the case or the Trial Judge completely

abdicating his functions, who merely behaved like an

umpire, giving complete freedom to the parties to lead

evidence the way they wanted.

37. A Trial Court always has to be on his

guard and has to be in know of the facts of the case for

him to either allow or disallow questions by parties to the

witnesses. When there was no cross-examination of the

witnesses, especially, with respect to facts which could

have provided the fulcrum for any decision with respect

to either murder, rape or any circumstance leading to

the suspicion that the accused/appellant could have had

his hand in it, the Trial Court was required to intervene

which he did not.

38. In this context, the Supreme Court also Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

found that the High Court also while dealing with the

Reference, did not exert itself and merely relied upon

the opinion of the Trial Court, which, in turn, was based

on the testimony of P.Ws. 1, 2 and 3 but without any

careful analysis.

39. It would now be necessary for us to list

the grounds on which the Supreme Court did not agree

with the opinion of the High Court dismissing the appeal

and confirming the death sentence.

40. The Supreme Court, on the basis of the

evidence on record, found that even though the case

was based on circumstantial evidence, the chain of

circumstances were not complete, thereby excluding any

hypothesis of the guilt or innocence of the appellant.

Even though the appellant was taken to hospital for

treatment as he had been assaulted by members of the

public, no medical examination was done on him as is

mandated under Section 53-A of the Cr.P.C. No samples

were collected for the purpose of DNA examination, Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

which was necessary in this case of rape where the

victim had died and the offence was sought to be

established only by circumstantial evidence and all these

lapses were fatal to the prosecution case.

41. It was also noticed by the Supreme Court

that the prosecution had not placed on record the

exculpatory evidence against the appellant. All that was

brought on record was a letter by the Officer-in-Charge

of the Sabour Police Station seeking permission to send

the articles so seized for forensic examination. The

Investigating Officer, following the instructions of the

superior police officer, did not receive the FSL report.

The vaginal swab of the deceased, which had been

collected at the time of post-mortem and was sent by

the Doctor (P.W. 4) to the pathology lab for

examination, was also not obtained. In fact, the

Supreme Court had found that the pathology report

indicated that there was no spermatozoa in the vaginal

swab.

Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

42. It was very noticeable that P.Ws. 1, 2

and 3 had made different statements at the Trial than

what they had made before the Investigator and that

also, after three months of the other accused, namely,

Pritam Tiwari having been declared a juvenile.

43. The Supreme Court found great force in

the submission of the appellant that only when the

prosecution realized that there was no use keeping the

allegation focused on Pritam Tiwari, as he would in no

case be punished for more than three years because of

his juvenility, deliberately, the allegation of calling over

the deceased to the house and locking the door of the

house/room by the appellant, sometimes in the

afternoon on 01.06.2015, was introduced at the Trial.

44. The Supreme Court noted that the Trial

Court did not take into account certain other ancillary

facts, which could not have been side-stepped in a

serious case of this kind where a ten year old girl had

been raped and killed.

Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

45. Admittedly, the appellant did not have

good relations with his brother and precisely for the lack

of bonhomie between the two brothers, a two-roomed

house was partitioned, one room going to each of the

brothers. The appellant had also taken a house on rent.

Apart from this, the Supreme Court found that there

was consistent evidence of P.Ws. 1, 2 and 3 of the

appellant being called by the villagers in the evening of

31.05.2015 and in the morning of 01.06.2015.

46. From these two facts, it could have been

inferred that the appellant was not a regular resident of

the house where the dead body was found concealed.

47. The Supreme Court, in order to clear its

doubt, looked at the police papers and found the map in

the police papers, which clearly revealed that there was

no interconnection between the two rooms from inside

and both the rooms had an exit on the varanda. The lock

of the outer iron grill was broken by the villagers. The

room in which Pritam Tiwari was found was locked from Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

inside as well and the door of the appellant was opened

by the keys which were brought by Fuchan and not the

appellant. Apart from this, the villagers who had

assembled at the P.O. and had broken the lock of the

main door as also of the rooms, have not been

examined. The sister-in-law of the informant, viz.,

Khushboo who was present in the house on 31.05.2015

when the deceased had gone to the appellants's house,

has also not been examined.

48. It, therefore, appeared to the Supreme

Court that the investigation was only on the lines of

confession of Pritam Tiwari.

49. The appellant was also not put to all the

circumstances under Section 313 Cr.P.C. for him to

effectively explain away the accusation levelled against

him. The circumstances were: (a) P.W. 3 having seen

the appellant locking the grill and door of his room; (b)

the appellant giving false information to P.W. 3 that the

victim had already left after watching the television; (c) Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

the appellant refusing to open the door as he did not

have the keys; (d) the appellant giving the keys to the

villagers after he was assaulted and (e) the so called

extra judicial confession by Pritam Tiwari implicating the

appellant.

50. Last but not the least, neither the Trial

Court nor the High Court ever referred to the mitigating

circumstances which would have inured in favour of the

appellant before handing over the death sentence to the

appellant. In fact, the High Court had not discussed any

one of the mitigating factors that the appellant did not

have any criminal antecedent and had displayed good

behaviour in jail, which was certified by the

Superintendent of the concerned jail.

51. The appellant has two minor children who

have been ostracized from the village but despite that,

their family has continued to keep its ties and connection

with the society alive. The wife of the appellant has been

elected as a councillor in the year 2010. The appellant Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

presently is more than 56 years of age. All these facts

suggested a strong possibility of reformation of the

appellant.

52. The primary reason for the matter to be

remanded by the Supreme Court is the failure of the

High Court in not dealing with the Reference made under

Section 366 Cr.P.C. in a proper manner.

53. Whenever a Court of Sessions passes a

sentence of death, the proceedings are to be

compulsorily 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 Cr.P.C.

clothes the High Court with the power to direct further

inquiry to be made or additional evidence to be taken, if

while dealing with the Reference, the High Court is of

the view that further inquiry ought to be made into or

additional evidence taken upon any point bearing on the

guilt or innocence of the convicted person. It must then

make such inquiry or take such evidence itself or direct it Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

to be made or taken by the Court of Sessions. It is

within the powers of the High Court to either confirm the

sentence or annul the conviction and acquit the accused

person.

54. This power has to be exercised diligently.

There cannot be any question about the width of this

power.

55. The entire case record was before the

High Court as an appeal is a continuation of the Trial of

the accused on the same set of evidence. Precisely for

this reason, the High Courts have been given powers to

take fresh evidence, if so desired. The High Court while

dealing with the Reference 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. The proceedings before the High

Court, in Reference, therefore, are in the nature of re-

appraisal and re-assessment of the entire facts and law

so that the High Court is satisfied on the materials about Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

the guilt or innocence of the accused persons.

56. This duty being cast upon the Court in

dealing with Reference under Section 366 Cr.P.C., it

would only be a travesty of justice if the High Court does

not consider the proceedings in all its aspects and arrives

to a conclusion on the materials, independently of the

view expressed by the Sessions Judge. While doing so,

the High Court would only be assisted by the opinion

expressed by the learned Sessions Judge, but under the

provisions of the law referred to above, it is for the High

Court to come to an independent conclusion of its own.

[Refer to Jumman and Ors. Vs. State of Punjab (AIR 1957

SC 469); Rama Shankar Singh @ Ram Shankar Roy and

Ors. Vs. State of West Bengal (AIR 1962 SC 1239) and

Bhupendra Singh Vs. State of Punjab (AIR 1968 SC

1438)].

57. The Trial Court had made no efforts to

ensure that adequate questions were put to the

witnesses to elicit the truth.

58. The High Court, in Appeal and in Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

Reference, fell in the same error.

59. When the attention of P.Ws. 2 and 3

were drawn to a particular aspect of the matter, namely,

the appellant having called the deceased to his house

and having been seen locking his door on the next day

and which suggestion was denied; the same questions

ought to have been put to the Investigator for proving

the contradiction. The Trial Court should have woken up

from the slumber. The Trial Court was definitely not

awake.

60. The impact was an unfair Trial to the

appellant.

61. In an adversarial system of Trial, the

Presiding Officer of a Criminal Court is not to remain a

mere spectator or a recording machine. He has to be an

active participant in the Trial by evincing intelligence and

active interest by putting questions to witnesses in order

to ascertain the truth. After all, a good umpire also

decides whether the parties are playing foul. Reticence Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

of a Judge may not always be a virtue to be extolled,

more so, when under his nose, injustice occurs or there

could be a possibility of Trial not being conducted in a

fair manner.

62. The role of a Judge, especially in Criminal

Courts, has been debated enough and many similes have

been suggested. Is he to assume the role of a referee in

a football match or of an umpire in a cricket match? Is

he required to drop the mantle of a Judge and assume

the robe of an Advocate? Can he put on his gloves and

go against a witness whom he suspects to be making

wrong statement?

63. All these doubts have now been cleared.

64. Robust judging is the response to the cry

of justice. The time honoured presumption of innocence

of persons accused of heinous offences cannot be

relaxed, yet at the same time, the principle cannot be

used as a "convenient shibboleth" to subvert the true

course of justice.

Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

65. A Judge in a Criminal Court, is not for

nothing, provided with all the tools. It is but lamentable

that those tools are not used.

66. In the preset case, those tools have not

been used at all.

67. Out of the several powers available with

the Trial Court, one is Section 165 of the Indian

Evidence Act, 1872.

68. Section 165 of the Indian Evidence Act,

1872 is extracted hereinbelow for ready reference:-

"165. Judge's power to put questions or order production.--The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-

examine any witness upon any answer given in reply to any such question: Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved: Provided also that this section shall not authorize any Judge to compel any witness to answer any Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted."

69. The whole purpose of producing evidence

in Court is: (a) to find out the truth of what actually

occurred and (b) a Trial is not a game or contest to be

won or lost by the number of witnesses called but they

are to be assessed for their quality and credibility. And

if the Trial Court sees it not happening, he must use his

powers under Section 165 of the Indian Evidence Act,

1872.

70. The powers of Section 165, as can be

noted, is very vast and unrestricted in putting any

question he pleases, in any form, at any time, to any

witness or to parties, about any fact, relevant or

irrelevant, in order to discover the relevant facts. Even Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

if any question by the Court under Section 165 of the

Indian Evidence Act, 1872 crosses in the realm of

irrelevancy, it would not transgress beyond the contours

of powers of the Court. No questions could be raised

about the impact of the question put to a witness by the

Court under Section 165 of the Indian Evidence Act,

1872. [Refer to State of Rajasthan Vs. Ani @ Hanif and

Ors.; (1997) 6 SCC 162].

71. In fact, in the present case, we have

noticed that the cross-examination of P.W. 2 had to be

postponed because she broke down a number of times

while answering the questions. This should have

prompted the Trial Court to have suavely put such

questions to her which would have brought out the truth.

72. The offence which the Trial Court was

trying, no doubt, diabolical. However, it would be

equally distressing if an innocent person is convicted

only because of the moral compass that a 10 year old

girl has been raped and killed, showing utmost depravity Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

and suspicion against the appellant. Suspicion after all,

as has rightly been explained by a jurist, is a sea without

a shore and anybody who takes a voyage in that sea is

rendered rudderless and without a compass.

73. This, perhaps, struck the Supreme Court

and, therefore, the police papers were referred to.

74. A question now arises whether any

adverse interference against prosecution can be drawn

on the basis of the statement of the witnesses before

the police during the course of investigation, as doing so

would be to qualify such statements before the police to

be put in the class of "evidence" as defined under

Section 3 of the Indian Evidence Act, 1872.

75. This aspects has to be seen from a

different angle altogether.

76. We have already noted that when there

was no positive reaction of the Trial Court as also the

High Court while dealing with the Reference even when

a denial was obtained by the defense from P.Ws. 1 and Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

3 about a crucial fact which could have proved to be

pivotal for deciding the innocence or guilt of the accused

and when no such question was put to the Investigator

for duly proving such contradiction, that the Supreme

Court became doubtful whether the records have been

perused by the Trial Court or even the High Court.

77. There is no difficulty in looking at the

police papers in order to clear the doubts. The only

difficulty is whether such statement could be used as an

evidence for drawing any adverse inference against a

witness or for contradicting them.

78. Even though the issue has been dealt

with in a number of cases with the position of law having

been explained without any doubt, we would refer to the

provisions contained in Sections 161 and 162 of the

Cr.P.C. alongside the provisions contained in Section

145 of the Indian Evidence Act, 1872.

79. Section 161 of the Cr.P.C. gives the

power to a police officer making an investigation to Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

examine orally any person who is acquainted with the

facts and circumstances of the case that is under

investigation and such person is bound to answer truly

all questions relating to such case put to him other than

the questions, the answer to which would incriminate

him. The answer so given by the person may be

reduced into writing and could also be recorded by

audio-video electronic means.

80. There are certain checks, especially with

respect to the statement of a woman against whom the

offences under Sections 354, 354-A to D, 376-A to E or

Section 509 of the I.P.C. is alleged to have been

committed, in which case, the statement shall be

recorded only by a woman police officer or any other

woman officer. How such statements recorded under

Section 161 are to be be used in a Trial, if at all it is

used? There is a complete embargo of such statements

before the police to be signed by the maker. It is for

this reason that it has been ordained under Section 162 Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

Cr.P.C. that no such statement made before the police

during the course of investigation would be used for any

other purpose except as provided in that section, at any

enquiry or Trial. If a prosecution witness is called in a

Trial, any part of his statement could be used by an

accused for contradicting him, but it could be done only

in the manner provided by Section 145 of the Indian

Evidence Act, 1872. If any part of such statement is so

used, the attention of the maker has to be drawn to that

statement.

81. Section 145 of the Indian Evidence Act,

1872 reads as follows:-

"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."

82. Thus, without such statement of the Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

witness being shown to him and the same having been

proved, it cannot be used for contradicting him.

83. In the present case, the Supreme Court

has looked into the police papers to find out the earlier

version of the prosecution witnesses. This was only

when the Supreme Court found that a fair Trial has not

been handed over to the appellant because of

inadequate cross-examination in view of specific

statement made by the witnesses during investigation.

For this reason, the case has been remanded for a re-

appraisal.

84. Under such circumstances, can we suo

motu look into such statements and use it against the

witnesses for the purposes of contradicting them?

85. With the bar under Section 162 of the

Cr.P.C. and the procedure prescribed under Section 145

of the Indian Evidence Act, 1872, it would be difficult to

do so.

86. Even if the Trial Court would have put Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

questions to the witnesses with reference to their earlier

statement before the police by employing the provisions

contained in Section 165 of the Evidence Act, then also,

compulsorily, the attention of the witnesses to such

previous statements had to be drawn.

87. In Tara Singh, Vs. The State; 1951

SCC 903, an issue was raised whether the evidence

recorded by the Committal Magistrate under the 1898

Code could have been used by the Trial Court for

drawing any adverse inference, solely on the basis of

such recorded statement by the Committal Magistrate,

where no opportunity was given to the accused to cross-

examine the witnesses. Justice Vivian Bose authoring

the judgment pointed out the difference of judicial

opinion regarding the issue.

88. Section 288 of the 1898 Code provided

that the evidence recorded by the Committing Magistrate

in the presence of an accused could be treated as an

evidence for all purposes, but subject to the provisions Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

of the Indian Evidence Act, 1872. There was one line of

reasoning prevalent that time that Section 145 of the

Indian Evidence Act, 1872 was not attracted because

that section only related to previous statements and

writing which are to be used for the purpose of

contradiction alone. The other line of reasoning, which

was approved by Justice Bose, was that there could not

be any exception to any provision in the Evidence Act

and the application of Section 145 of the Evidence Act,

1872, therefore, could not be excluded, even it be with

respect to an evidence recorded by the Committal

Magistrate under the Code. Thus, in that case, since

reliance was placed on an evidence which did not pass

the procedural test of Section 145 of the Indian

Evidence Act, 1872, the same was not approved and a

re-trial de novo was ordered.

89. In Raghunandan Vs. State of U.P.;

(1974) 4 SCC 186, the Supreme Court has referred to a

judgment in Emperor Vs. Lal Miya; AIR 1943 Cal 521 Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

and has held that any statement of a witness recorded

by the police during investigation cannot be used for any

purpose other than one mentioned in Section 162 of the

Cr.P.C.; but this prohibition applies only to the parties to

the proceedings and does not operate against the powers

of the Court, when it considers the testimony of a

witness to be necessary. The Supreme Court went on to

explain that the ban imposed by Section 162 Cr.P.C.

against the use of statement of a witness recorded by

the police during investigation, though may be sweeping

and wide but at the same time, it would not curtail the

powers of a Court under Section 165 of the Evidence

Act, 1872 to put any question to a witness in order to

discover or obtain proper proof of relevant facts. The

first and second proviso to Section 165 of Evidence Act,

1872 make it very clear that it would not be tramelled

by the ban of Section 162 of Cr.P.C. or else, it would

have been stated so by the Legislature under Section

162 of the Cr.P.C. Section 162 of Cr.P.C was enacted Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

much after Section 165 of the Indian Evidence Act,

1872. But then also, unless the attention of the witness

is not drawn to his/her earlier statement, the same

cannot be used for any purpose. [Also refer to Dandu

Lakshmi Reddy Vs. State of A.P., (1999) 7 SCC 69.]

90. In V.K. Mishra Vs. State of

Uttarakhand and Anr.; (2015) 9 SCC 588, the Supreme

Court has fully explained the interplay of Sections 161

and 162 of the Cr.P.C. and Section 145 of the Indian

Evidence Act, 1872. The relevant paragraphs from the

judgment are being quoted of for the sake of

completeness:

15. Section 161 CrPC titled "Examination of witnesses by police" provides for oral examination of a person by any investigating officer when such person is supposed to be acquainted with the facts and circumstances of the case. The purpose for and the manner in which the police statement recorded under Section 161 CrPC can be used at any trial are indicated in Section 162 CrPC. Section 162 CrPC reads as under:

"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 Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

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 Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

omission amounts to a contradiction in the particular context shall be a question of fact."

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 Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

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: (It has already been extracted before).

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 Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

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 provided)

91. But then, what happens when such

power has not been exercised by the Trial Court and

even in Reference, the High Court has not used its

power under Section 367 of the Cr.P.C.?

92. Can the previous statement of the

witnesses be now looked into?

93. This, thus, has put us in a quandary.

94. Do we remand the case to the Trial

Court for again examining the witnesses or would it be

more appropriate, keeping in mind that a lot of time has

elapsed, that we exercise the powers under Section 367

of the Cr.P.C. and ourselves take additional evidence Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

upon the issues bearing upon the guilt or innocence of

the appellant?

95. The statement made by the witnesses

before the Investigator has been extracted by the

Supreme Court under its exceptional and wide reservoir

of powers.

96. The witnesses would, either in the

event of re-examination by the Trial Court, admit it or

deny it. In case they admit, then they stand

contradicted, which contradiction would be proved by

putting the same question to the Investigator. In the

event of their accepting to have made such statement,

such contradiction would stand proved. In no case

would any other situation arise even if the matter is

remanded to the Trial Court.

97. Though in a different context, but which

would be very apt to the fact situation of this case, it

has been held by the Supreme Court in State of M.P.

Vs. Bhooraji; (2001) 7 SCC 679 that normally "a de Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

novo Trial" should be the last resort and that too only

when such a recourse becomes so desperately

indispensable that it would be necessary to order for it.

It should be limited to the extreme exigency to avert a

"failure of justice" which, otherwise, would not be

achieved. "Any omission or illegality in the procedure

which does not affect the core of the case may not be a

ground for ordering a de novo Trial. In cases of de novo

Trials, there is always a possibility of serious impact on

the roster of the Trial Courts which are otherwise

crammed with dockets and hardship of many persons

who would have taken all the troubles at their disposal

to reach out to the Court in the first instance and having

deposed their version in that case. To them and the

members of the public, the re-enactment of the whole

labour might give the impression that law is more

pedantic than pragmatic. After all, law is not an

instrument to be used for inflicting sufferings on the

people but for the process of justice dispensation." Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

98. This occurrence is of the year 2015. In

case of remand, the mother and the sister of the victim

would be required to be called to the witness stand

again. They would suffer the same travails which they

had earlier. The might be subjected to ridicule or

perhaps ostracization. The sister of victim at that time

was 16 years old. She may have been married with a

family of her own. Such harrowing experience once

again, in our estimation, would do more harm than gain.

99. In Rahul Vs. State of Delhi, Ministry

of Home Affairs and Anr.; (2023) 1 SCC 83 , the

Supreme Court, after having quoted the observations of

Chinnappa Reddy, J. in Ram Chander Vs. State of

Haryana; (1981) 3 SCC 191, that for a criminal Court

to be an effective instrument in dispensing justice, the

presiding Judge must put questions to the witnesses in

order to ascertain the truth, and then having found in

the facts of the case that the material prosecution

witnesses were not adequately examined and cross- Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

examined and the Trial Court behaved like a passive

umpire, came to the conclusion that the

appellant/accused was deprived of his right to have a

fair trial, apart from the fact that truth also could not be

elicited by the Trial Court, and thus acquitted the

accused.

100. We also have noted that there are,

even without looking into the earlier statements of the

witnesses, several glaring lapses in the appreciation of

already existing evidence. The prosecution witnesses,

through their own deposition, have rendered themselves

unworthy of complete reliance.

101. The FIR lodged by P.W. 2 misses out

on the core issues on which suspicion could be and was

raised by PW-2 against the appellant. The circumstances

which have been woven up together by the Trial Court

as also the High Court in the first instance, are that P.W.

3 had seen the appellant locking the grill and door of his

room and that he had given a false information to P.W. Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

3 that the victim had already left the house of the

appellant after watching the television. The other

circumstances inching towards the guilt of the appellant

were the cognate circumstances, namely, his refusal to

open the door when he had the keys with him and his

handing over the keys only when he was assaulted by

the villagers. Even if these fact situations are accepted

to be ex facie true, it would not form a chain, so

complete, so as to exclude any other hypothesis but the

guilt of the appellant.

102. The law pertaining to appreciation of

circumstantial evidence was very succinctly explained by

the Supreme Court in Hanumant Vs. State of M.P.;

(1952) 2 SCC 71, wherein it was held that in cases

where the evidence would be of a circumstantial nature

from which the conclusion of guilt is drawn, has to be

fully established and all the facts so established ought to

be consistent only with the hypothesis of the guilt of the

accused. The circumstances should be of a conclusive Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

nature and tendency. They should be such as to exclude

every hypothesis but the one proposed to be proved.

Simultaneously, there must be a chain of evidence

complete in itself, leaving no room for any reasonable

doubt that the accused could be innocent also. Such

proposition, by and large, had been followed rather

consistently till date. [Also refer to Tufail Vs. State of

U.P., (1969) 3 SCC 198; Ram Gopal Vs. State of

Maharashtra, (1972) 4 SCC 625 and Sharad Birdhi Chand

Sharda Vs. State of Maharashtra, (1984) 4 SCC 116.]

103. A further elucidation was made by the

Supreme Court in Shivaji Sahebrao Bobade and Anr.

Vs. State of Maharashtra (1973) 2 SCC 793 , wherein

the Supreme Court indicated that the circumstances

concerned "must or should" and not "may be"

established. There is not only a grammatical but a legal

distinction between "may be proved" and "must be or

should be proved". [Also refer to Padala Veera Reddy Vs.

State of A.P. (1989 Supp. 2 SCC 706); Gambhir Vs. State

of Maharashtra (1982 2 SCC 351) and Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

Navaneethakrishnan Vs. The State by Inspector of Police

(2018 16 SCC 161)].

104. Keeping these principles in mind, if

the evidence of P.Ws. 1, 2 and 3 and simultaneously of

P.Ws. 5 and 6, the I.O. and an independent witness, are

analyzed, it would become absolutely clear that the

inconsistencies are apparent in their deposition. Missing

out in the FIR on the very fact that the informant (P.W.

2) was informed by P.W. 3 that she had seen the

appellant locking the door is, in fact, in the nature of

contradiction which completely discredits P.W. 2 so far

as the appellant is concerned.

105. The Trial Court did not appreciate the

evidence available on record that the appellant and his

brother were not on good terms. The brother of the

appellant had entrusted the upkeep of the house to his

brother-in-law, namely, Pritam Tiwari, who is a person of

young age. Every time that P.W. 2 along with P.Ws. 1

and 3 and villagers came to the house of the appellant Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

to look for the victim, the appellant was not present

there and, therefore, he had to be called by the

villagers. The appellant never evaded but agreed to

come to the house. It is not believable that when the

relationship between him and his brother was so strained

so as to partition a two-roomed house and where the

appellant was not able to reside even after partition, that

he would get in-cahoots with the brother-in-law of his

brother for committing such an act. In fact, the converse

proposition is more plausible that when Pritam was

apprehended by the villagers in front of the police, who

had hid himself inside the room allotted to the share of

the brother of the appellant, he made a confession

implicating the appellant as well. This confession of

Pritam further reflects that it was maneuvered by the

brother of the appellant or the police or the local persons

who had assembled at the place of occurrence.

106. The conduct of Pritam also appears to

be absolutely doubtful in hiding himself in the room Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

when the dead body also was kept in the same house. If

the appellant chose to come out of the house, which was

perhaps only for his safety, Pritam would not have

stayed back, if Pritam and the appellant were acting in

unison. Even otherwise, if the appellant had committed

the act along with Pritam, he would have not advised

Pritam to stay back in the house for him to be caught

and buckle under the pressure of local persons and spill

the beans.

107. The very fact that the appellant was

not present in his house, whereas Pritam was present all

through, even locking the room from inside when a lock

had been put outside, justifies the inference that the

appellant has wrongly been framed in this case.

108. Was the police toeing the line of the

confession of co-accused?

109. It appears to be so.

110. The confession was not made before

the Investigator. Only P.Ws. 1, 2 and 3 have talked Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

about Pritam having confessed before the members of

the public, which fact has not been stated by the

independent witness, namely, P.W. 6. The timing of the

P.Ws. 1 to 3 to depose against the appellant, in

particular, is eye-catching. It was only after Pritam was

declared juvenile by the Juvenile Justice Board.

111. Was it then an attempt to anyhow

salvage the case from being rejected that for the first

time before the Trial Court, accusations against the

appellant were made?

112. If at all P.W. 3 had seen the appellant

locking the door on 01.06.2015 in the afternoon and

heard him give false information to her that the

deceased had already left for her home after watching

the television show, she would have definitely shared

this information with her mother (P.W. 2), who would

have then stated it as a ground in the FIR for suspecting

the complicity of the appellant.

113. True it is that the FIR is never Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

expected to be an encyclopedia of all information. It is

not even a substantive piece of evidence and it only sets

the criminal law in motion. It could be used for

corroborating or contradicting the maker of it. However,

an omission of this kind makes the testimony of P.W. 3

as also P.W. 2 highly suspect and capable of being

doubted for its correctness.

114. Another question which haunts us is

as to where had the rape and murder taken place. Did it

happen in the room of the appellant or that the deceased

who had come to watch the television installed in the

room of the brother of the appellant, raped and

murdered there and her dead body was dragged and

kept in the room of the appellant?

115. Neither of it appears to be possible.

116. The house has only two rooms as can

be derived from the deposition of the witnesses. One

room each has fallen in the share of the appellant and

his brother. There is no inter-connectivity between the Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

rooms from inside. However, there is a common

verandah. The occurrence is said to have taken place

some times after the deceased had left for the

appellant's house on 31.05.2016 in the morning. Till

about afternoon, when she had not returned to her home

and when her sister (P.W. 3) had gone to look for her,

there was no suspicion at all nor P.W. 3 could spot any

incriminating mark or circumstance to doubt about the

deceased having been harmed in any manner.

117. In all its probability, the deceased

would have been murdered sometimes between 9:00

A.M. to 11:00 A.M. and then P.Ws. 1, 2 and 3 and the

entire village had assembled at the house by evening.

Till evening of 31st of May, 2015, there was no clue and

the suspicion merely veered around Pritam Tiwari. Even

the appellant is said to have suspected the hand of

Pritam Tiwari and on his so stating it, P.W. 2 claims to

have looked for Pritam Tiwari instead of her own

daughter, thinking that Pritam might have abducted the Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

victim. If at all the appellant would have been in know

of the fact that very shortly it would be known to the

villagers and others that the dead body has been kept in

his room, he would not have come back on the next day

to face the ire of the public.

118. These sequence of events provide

sufficient reason to doubt the correctness of the

prosecution version.

119. The conduct of the appellant becomes

very relevant in the ultimate analysis of the evidence on

record. Such conduct may be taken into account under

Section 11 of the Indian Evidence Act, 1872.

120. After having said all this, we are still

groping as to how the dead body was found beneath a

bed in the room allotted in the share of the appellant

which was locked from outside. The I.O. has not stated

anything about what else she saw in the room. The

room, perhaps, was completely spartan with a bed and

nothing more. There were no sign of blood or marks of Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

struggle either in the room in which Pritam Tiwari was

hiding or in the room from where the dead body was

recovered. There was no trail of blood or any

incriminating mark.

121. What then must have happened?

122. An inference can be made that the

entire suspicion is based only on the premise of the

regular habit of the victim going to the house of the

appellant where Pritam had been staying for last 2 - 3

months as in-charge of the house, for watching

television shows and no more.

123. For the time being, we are not taking

into account the statement made by the prosecution

witnesses before the police for the reason of those

witnesses not having been contradicted by drawing their

attention to the earlier statements, for such statements

to qualify as evidence. Thus, even if it is assumed that

Pritam would have called the victim, the evidence on

record is that children of the locality always visited the Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

house for witnessing television programme.

124. Was the deceased alone in the house

with Pritam Tiwary or there were others also?

125. We have no clue again because of no

investigation having been made by the I.O. in a proper

manner or the witnesses not having been cross-

examined adequately.

126. The deceased died primarily of

suffocation/asphyxia caused by smothering. The nasal

bone was found to have been damaged. The manner in

which the murder had been committed reflects complete

depravity. But who all did it?

127. The victim was only half dressed.

128. The I.O. has stated before the Trial

Court that the undergarments of both the

victim/deceased and the appellant were seized and sent

for forensic examination. However, on record, there is

only a letter by which permission has been sought from

the Trial Court for sending the same to the forensic Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

laboratory. The report was neither procured by the I.O.

nor the same was awaited or called for by the Trial

Court.

129. What could be a more passive

approach of both the Investigator and the Trial Court?

130. The forensic evidence in this regard,

even without DNA profiling, would have otherwise been

a clincher so far as the guilt of the appellant is

concerned; but alas! no importance was given to it.

131. Was the prosecution fearful that the

entire story would be busted if the report comes?

132. The pathological report was not

brought on record even when P.W. 4/the Doctor has

specifically stated that the same was collected during the

course of postmortem examination and was sent to the

pathological laboratory of the hospital. The Trial Court

ought to have asked for that report and the prosecution

should have brought it on record. For all we know, the

report might have been damaging to the prosecution Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

case.

133. There is yet another aspect of the

matter which renders the Trial of the appellant

absolutely unfair.

134. The appellant after his arrest was sent

to hospital for treatment of the wounds which he had

suffered because of the assault by the villagers. That

was the time when his examination under 53-A should

have been made and necessary samples collected for

DNA profiling.

135. Section 53-A has been inserted in the

Cr.P.C. in the year 2006 requiring the examination of

person accused of rape by medical practitioner.

Whenever a person is arrested on such charge and there

are reasonable grounds of believing that the examination

of his person will afford evidence as to the commission

of such offence, it would only be lawful for a registered

medical practitioner employed in the hospital run by the

government or by a local authority and in the absence of Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

such a practitioner within the radius of 16 kilometers

from the place where the offence has been committed,

by any other registered medical practitioner, acting at

the request of a police officer of the rank of Sub

Inspector and above, and for any person acting in good

faith in his aid and under his direction is to examine such

arrested person and to use such force as is reasonably

necessary for such purpose.

136. While examining such arrested person,

the Doctor is required to identify the marks of injury as

also the description of materials taken from the person

of the accused for DNA profiling and other materials

which would help unravel the truth.

137. The report of the medical practitioner

would precisely indicate the reasons for the conclusion

arrived at by the medical practitioner. The report shall be

forwarded to the I.O., who shall then forward it to the

Magistrate for the needful.

138. This has not been done even when Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

there was no opposition to it by the appellant. It needs

no repetition that when the offence charged is heinous

and the evidence put forth is circumstantial in nature,

the Courts are required to put the material evidence

under scrutiny of a much higher standard.

139. The provisions contained in Section

53-A was incorporated in the Code as it had become

necessary for the prosecution in cases of rape and

murder of DNA test for facilitating the prosecution to

prove its case against the accused.

140. Prior to its insertion in the Code also,

DNA test and matching of semen was being resorted to

but without the specific provision in place, non-

observance of the same would not have otherwise led to

an inference of weak prosecution. [Refer to Chotkau Vs.

State of Uttar Pradesh; (2023) 6 SCC 742.]

141. Though in Rajendra Prahladrao

Wasnik Vs. State of Maharashtra; (2019) 12 SCC 460 ,

it was held that the compliance of Section 53-A is not Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

mandatory but non-compliance definitely weakens the

prosecution case.

142. The chain of circumstances, therefore,

could not be forged by the prosecution.

143. There could be a possibility of only

Pritam Tiwari having committed the offence. There is

also a possibility of other miscreants having entered the

house when the victim/deceased was there. There is also

a possibility that the appellant was never there at the

place of occurrence and only in order to shift the gaze of

the investigation from the brother of the appellant,

Pritam Tiwari named him, who had strained relationship

with his brother. This explains for the villagers to break

open the lock and not open it even when keys were

ultimately handed over by the appellant. Apart from this,

the appellant had arrived at the place of occurrence after

his brother. The brother of the appellant had opened the

main iron door and had also opened the lock of his

room.

Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

144. Was it a ploy, namely, to put a lock

outside the room of the brother of the appellant when

Pritam was hiding inside in order to give it an adroit

appearance of the house not being inhabited at the

relevant time.

145. There could be myriad situations

which could be inferred because of the faulty

investigation and equally faulty method adopted by the

Trial Court in not getting the toe-hold of the proceedings

of the Court, thereby allowing the parties to have their

field day without exercising any control over the Trial

process.

146. The confusion got worst confounded

when no circumstance which was relied upon by the Trial

Court to convict and sentence the appellant, was put to

him under Section 313 of the Cr.P.C. for him to

effectively explain away the charge so levelled against

him. Merely four questions were asked from the

appellant which did not relate to any circumstance Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

inferring his guilt, but only broad facts that the appellant

raped and killed the deceased and concealed the dead

body. All the circumstances in between these penumbra

of facts were never put to the appellant. That was,

again, a stage where the Trial Court could have elicited

some information which could have helped him come to

the right conclusion.

147. For all these reasons, we find that the

prosecution has not been able to prove the case beyond

all reasonable doubts and, therefore, benefit of doubt

has to be given to the appellant.

148. We, therefore, find ourselves

completely unable to affirm the conviction and the

sentence of death.

149. The Reference, thus, is rejected.

150. We have not discussed about the

mitigating factors which were not taken into account by

the Trial Court, for the reason that we have not found

the accusation against the appellant to be beyond all Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

reasonable doubts in the first place. The question of

sentencing comes only later.

151. For the same very reasons, we allow

the appeal and set aside the judgment of conviction and

order of sentence, referred to above, passed by the Trial

Court.

152. The appellant/Munna Pandey is in jail

for about eight (8) years by now. He is directed to be

set at liberty forthwith unless his detention is required in

any other case.

153. Let a copy of this judgment be

dispatched to the Superintendent of the concerned Jail

forthwith for compliance and record.

154. However, in view of the provisions

contained under Section 357A of the Cr.P.C., the State

Legal Services Authority shall provide compensation to

the mother of the victim, if already not done, in

accordance with law, without any unnecessary delay.

155. Before parting, we place on record the Patna High Court D. REF. No.4 of 2017 dt.11-10-2023

valuable assistance rendered by Mr. Ansul and the

learned Advocates representing Project-39A.

156. The records of these cases be

returned to the Trial Court forthwith.

157. Interlocutory application/s, if any, in

both the cases, also stand disposed off accordingly.

(Ashutosh Kumar, J)

(Alok Kumar Pandey, J)

Praveen-II/-

Saurabh, Manoj,
Shahzad

AFR/NAFR                AFR
CAV DATE                N/A
Uploading Date          16-10-2023
Transmission Date       16-10-2023